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June 03, 2021

A plaintiff typically must initiate a Civil Service Law §75-b "whistle blower" cause of action within one year of the alleged act or omission

Civil Service Law §75-b, the so-called whistle-blowing statute, provides that "[a] public employer shall not dismiss or take other disciplinary or other adverse personnel action against a public employee ... because the employee discloses to 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 [a violation of any federal, state or local law, rule or regulation]".

Further, in order to maintain a Civil Service Law §75-b cause of action, a plaintiff must commence the action "within one year after it accrues."

On April 8, 2013, a public employee [Plaintiff] commenced legal action against his public employer [Respondent] alleging that Respondent had terminated his employment in violation of Labor Law §740 in retaliation for his complaints of certain improprieties alleged to have occurred in his department in November 2009. Plaintiff subsequently amended his complaint to allege a violation of Civil Service Law75-b.

The Respondent moved for summary judgment dismissing the complaint. Supreme Court granted the Respondent's motion and Plaintiff appealed.

The Appellate Division order affirmed the Supreme Court's action, with costs, explaining:

1. Employee commenced this action on April 8, 2013, and, therefore, only the retaliatory acts that were alleged to have occurred on or after April 8, 2012, may be considered as timely.

Accordingly, said the court, the allegedly retaliatory acts which took place in 2009 and 2010 "were insufficient to establish a viable claim of a continuing violation" and, further, the continuing violation doctrine did not toll the running of the statute of limitations.

2. Civil Service Law §75-b(4) provides that nothing in the statute prohibits any "personnel action which otherwise would have been taken regardless of any disclosure of information."

Here, opined the Appellate Division, the Respondent "established its prima facie entitlement to summary judgment by showing that it terminated Employee for budgetary reasons and Employee "failed to raise a triable issue of fact."

Click HERE to access the Appellate Division's decision. 

 

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New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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