Whistle blower’s failure to cite any specific law, rule, or regulation allegedly violated by the employer in the complaint not fatal to pleading a viable cause of action

Whistle blower’s failure to cite any specific law, rule, or regulation allegedly violated by the employer in the complaint not fatal to pleading a viable cause of action

2014 NY Slip Op 04889, Appellate Division, Second Department

In an action to recover damages for violation of Labor Law §740, the plaintiff [WB] appealed an order of the Supreme Court that granted the employer's motion to dismiss the complaint for “failure to state a cause of action.”

A cause of action based upon Labor Law §740, commonly known as the "whistleblower statute," is available "to an employee who discloses or threatens to disclose an employer activity or practice which (1) is in violation of a law, rule or regulation, and (2) creates a substantial and specific danger to the public health'"*

The Article 78 petition alleged that the plaintiff [WB] was terminated from her position after she complained to her superiors about certain conduct that the employer engaged in or tolerated. It further alleged that such conduct violated various laws or rules or regulations, and threatened public health.

Although WB’s complaint did not specify any particular law, rule or regulation that the employer allegedly violated, the Appellate Division said that it sufficiently identified the complained-of conduct by the employer and provided the required notice. Therefore, said the court, the failure to specify in the complaint any law, rule, or regulation was not fatal to pleading a viable cause of action pursuant to Labor Law §740.**

Accordingly, said the Appellate Division, that branch of the employer's motion to dismiss the complaint for failure to state a cause of action should have been denied by Supreme Court.

Reversing the Supreme Court’s ruling “on the law,” the Appellate Division denied the employer’s motion to dismiss WB’s complaint for failure to state a cause of action.

* §75-B.2(a) of the Civil Service Law provides, in pertinent part, “A public employer shall not dismiss or take other disciplinary or other adverse personnel action against a public employee regarding the employee's employment because the employee discloses 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.

** On a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the complaint must be construed liberally, the factual allegations deemed to be true, and the nonmoving party must be given the benefit of all favorable inferences.

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The placement of an individual’s name on the NYC Department of Education’s “Ineligible/Inquiry List” essentially bars future employment with the Department

The placement of an individual’s name on the NYC Department of Education’s “Ineligible/Inquiry List” essentially bars future employment with the Department

2014 NY Slip Op 05047, Appellate Division, First Department

As the U.S. Circuit Court of Appeals said in Segal v NYC Department of Education, 459 F3d 207, the placement of an individual’s name on the New York City Department of Education’s “Ineligible/Inquiry List” essentially render the individual ineligible for future employment with the New York City Department of Education [DOE].*

In this Article 78 action Supreme Court denied a former tenured teacher’s [Teacher] petition seeking to, among other things, remove her name from an "ineligible/inquiry list" maintained by the New York City Department of Education (DOE), and dismissed the proceeding. The Appellate Division affirmed the lower court’s ruling.

DOE placed had place Teacher’s name on the "ineligible/inquiry list" after her employment as a tenured school teacher was terminated following a disciplinary hearing pursuant to Education Law §3020-a.

The Appellate Division held that Supreme Court “properly found that the proceeding is time-barred, since it was commenced some five months after Teacher received notice of the DOE's determination,” explaining that Teacher is deemed to be on notice of the DOE Chancellor regulation regarding automatic ineligibility for reemployment upon termination.”

Accordingly, Teacher was "aggrieved" for the purposes of the running of the statute of limitations upon notice of her termination and her commencement of her CPLR Article 78 action more than four months later was untimely.

In addition, the Appellate Division pointed out that Teacher’s Article 78 proceeding was also barred by the Doctrine of Collateral Estoppel insofar as Teacher sought to re-litigate issues determined in a prior CPLR Article 75 proceeding challenging the termination of her employment.

In the words of the court, Teacher’s “challenge to her placement on the ineligibility list is, for all intents and purposes, a challenge to her termination, which she already had a full and fair opportunity to litigate.”

* A DOE Chancellor regulation provides that placement of an individual’s name on the list is an automatic consequence of termination and indicates that individual is ineligible for reemployment with the DOE absent express approval by the Chancellor.
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Termination of a firefighter from his position held to be a reasonable disciplinary penalty under the circumstances

Termination of a firefighter from his position held to be a reasonable disciplinary penalty under the circumstances
2014 NY Slip Op 04941, Appellate Division, Second Department

A hearing officer found a firefighter [Firefighter] guilty of misconduct* and imposed the penalty of termination from the Department. Firefighter appealed the penalty imposed by hearing officer.

Supreme Court granted Firefighter’s petition with respect to the penalty imposed by:

[1] annulling so much of the determination as terminated the petitioner's membership in the Department,

[2] reducing the penalty to a suspension for a period of 29 months, with credit for the period of suspension already served, and

[3] directing the Department to reinstate Firefighter as a member of the Department.

The Appellate Division revered the Supreme Court’s decision “on the law” and confirmed the penalty imposed by the hearing officer.

The court noted that an administrative penalty must be upheld unless it "is so disproportionate to the offense . . . as to be shocking to one's sense of fairness," thus constituting an abuse of discretion as a matter of law. Here, said the court, Firefighter’s conduct endangered himself and distracted his coworkers while they were fighting a fire, thus possibly endangering them as well.

Under these circumstances the Appellate Division held that the penalty of termination of membership was not shocking to one's sense of fairness. Thus Supreme Court should have denied that branch of the petition which sought to review the penalty, confirmed the penalty, and dismissed the proceeding on the merits.

* The hearing officer found Firefighter guilty of “verbally abusive conduct directed to fellow firefighters during the course of a fire,” and failing to follow direct orders, including an order directing him to leave the scene of an emergency because he was not attired in proper gear.”

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