April 01, 2020

Considering a whistle blower defense in the course of a disciplinary action


The appointing authority [Authority] filed disciplinary charges against an employee [Defendant] pursuant to §75 of the Civil Service Law alleging the Defendant was guilty of excessive absence and remaining on the job site against her supervisor’s orders on 76 occasions.

Although Defendant advanced a "whistleblower defense,"* New York City Office of Administrative Trials and Hearings Administrative Law Judge Noel R. Garcia, noting that to establish a “whistleblower” defense the employee must show that the sole motivation for appointing authority's filing the disciplinary charges was to retaliate against the individual, found the Defendant had failed to prove such a defense because, upon review of all of the evidence in the record, Defendant did not establish that the disciplinary charges filed against her were motivated solely by complaints she had filed and that they were factually unconnected to the Defendant’s long periods of absence without leave.

The Administrative Law Judge opined that "much of [Defendant's] testimony regarding the claim of retaliation was uncorroborated, self-serving, and generally not credible." 

Judge Garcia also found that the Authority proved that the Defendant did not provide required medical documentation in connection with Defendant's absence, had refused to meet with her supervisor concerning her absences and had not sought medical treatment until almost four months after she commenced being absent from her position.

As to the penalty to be imposed, Judge Garcia recommended that the Defendant's be terminated from her position.

* Civil Service Law §75-b, which prohibits a public employer from taking disciplinary action to retaliate against an employee for reporting “improper governmental action.”