May 13, 2019

New York public employers are prohibited from taking retaliatory action against employees as a result of their whistle blowing


Civil Service Law §75-b.2(a) bars a public employer from dismissing or taking other disciplinary or other adverse personnel action against a public employee with respect to his or her employment as the result of the employee disclosing "to a governmental body information:

(i) regarding a violation of a law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety; or

(ii) which the employee reasonably believes to be true and reasonably believes constitutes an improper governmental action. 'Improper governmental action' shall mean any action by a public employer or employee, or an agent of such employer or employee, which is undertaken in the performance of such agent's official duties, whether or not such action is within the scope of his employment, and which is in violation of any federal, state or local law, rule or regulation."*

The prohibitions set out in §75-b.2(a) were explored after seasonal part-time police officers [Plaintiffs] employed by a Town police department [Defendants ] were advised that they would not be returning to that role in 2006. Plaintiffs contend that this was done in retaliation for their complaints regarding the misconduct of other Town police officers and improper policing practices. Plaintiffs ultimately commenced a CPLR Article 78 action alleging that they were terminated in violation of Civil Service Law §75-b.**

Supreme Court dismissed Plaintiffs' petition after finding that they had failed to make the necessary disclosures to a governmental body required by the provisions of §75-b. Accordingly, the court found that Plaintiffs were not within the ambit of the protections accorded "whistleblowers" in the event they had suffered retaliation as a result of such action. Citing Hastie v State University of New York at Morrisville, the Appellate Division sustained the Supreme Court's ruling, explained that the petition was properly dismissed.

Turning to Plaintiffs' defamation claim involving "pseudonymous blog forum" entries allegedly posted by officials and Plaintiffs' former coworkers, the employer "produced a job description for police officers that does not require officers to engage with the public on the Internet, let alone to hide in the shadows and defame former colleagues there." Accordingly, the Appellate Division concluded that "any defamatory postings ... were not made in the scope of [their former coworkers'] employment, and Supreme Court properly granted summary judgment dismissing the defamation claim brought against the employer.

In the words of the Appellate Division, the employer "could not be held liable for defamatory statements made by their employees in a personal capacity."

* During the period at issue, a disclosing employee was also obliged to make "a good faith effort [before disclosure] to provide the appointing authority or his or her designee the information . . . [in order to] provide the appointing authority or designee a reasonable time to take appropriate action unless there is imminent and serious danger to public health or safety." (Civil Service Law §75-b [2] [former (b)], as repealed by Laws of 2015, Chapter 585, §2.

** CSL §75-b(3)(b) provides that “Where an employee is subject to a collectively negotiated agreement which contains provisions preventing an employer from taking adverse personnel actions and which contains a final and binding arbitration provision to resolve alleged violations of such provisions of the agreement and the employee reasonably believes that such personnel action would not have been taken but for the conduct protected under [subdivision 2 of CSL §75-b], he or she may assert such as a claim before the arbitrator."

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2019/2019_03725.htm

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