October 06, 2018

Using a whistle blowing defense in a disciplinary action

Using a whistle blowing defense in a disciplinary action
Crossman-Battisti v Traficanti, 235 A.D.2d 566

Under what conditions is it appropriate to raise a claim that the employer violated §75-b, the so-called "whistleblower statute," as a defense in a §75 disciplinary action? This was one of the issues considered by the Appellate Division in the Crossman-Battisti case.

June F. Crossman-Battisti, a Court Assistant in Nassau County Family Court, was found guilty of charges of insubordination and misconduct and terminated from her position.

Charges filed against Crossman-Battisti included allegations of verbal abuse of her superiors, refusal to obey a direct order, unauthorized absences and abuse of leave, altercations with other employees and defiance of authority.

One of the claims Crossman-Battisti made in her appeal of this determination was that the disciplinary action taken against her violated §75-b of the Civil Service Law. She contended that §75 disciplinary charges were filed against her "in retaliation for her whistleblower activities."

The Appellate Division rejected this defense, commenting that a §75-b defense in a disciplinary action "applies only where the disciplinary proceeding is based solely on the employer's retaliatory action."

In contrast, said the Court, where "as here, the employer presents evidence of specific incidents of inappropriate conduct which are found to demonstrate a separate and independent basis for the [disciplinary] action taken, a defense under Civil Service Law §75-b cannot be sustained."

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It then dismissed her appeal, commenting that it found that the penalty imposed, dismissal, met the Pell standard [Pell v Board of Education, 34 NY2d 222].


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