Thursday, March 19, 2015

First Department says doctor can win state whistleblower claim

Any plaintiffs' lawyer will tell you that the New York whistleblower law is fool's gold. It protects whistleblowers from termination, but the law has so many loopholes you can drive a Mack truck through it. Few people win under the statute, but this guy did.

The case is Blashka v. New York Hotel Trades Council, an Appellate Division First Department ruling decided on March 12. Dr. Blashka sued under Labor Law section 741, which says you cannot fire someone in retaliation for speaking out in good faith about the "improper quality of patient care." The trial court threw out the case because the plaintiff's complaint did not cite the law or regulations that his employer had violated. Supreme Court added,

Despite the plaintiff's contention that he was "informed" that The Health Center may have violated the Education Law or the Rules of the Board of Regents, he fails to state that this was his own reasonable belief, as required by Labor Law § 741(2)(a). Nor does he state who informed him of this fact or when. Therefore, he has failed to raise a material issue of fact in that regard and otherwise fails to raise any factual issue warranting a trial. Although plaintiff maintains that he was terminated for complaining  about The Health Center's practices relating to the quality of patient care, including its failure to terminate the dentist who had a drinking problem, he admitted at his deposition that he "thought" he was fired a result of Dr. Greenspan retaliating against him, but that he "can't prove it." Nor could he state a precise reason for his termination. It is well settled that such speculation is insufficient to defeat a motion for summary judgment. Indeed, the credible evidence submitted on the motion indicates that the plaintiff's own conduct posed a threat to The Health Center's patients.
The Appellate Division reverses summary judgment, and the case goes to trial. It is no longer good law that the plaintiff must cite the laws or regulations in his complaint. In May 2014, the State Court of Appeals rejected that pleading requirement in Webb-Webber v. CAHS (a case that I argued). On the merits, the First Department says plaintiff raised a fact issue whether he was fired in retaliation for whistleblowing:

Plaintiff's reports, in May and June 2009, to his superiors of his suspicions that this dentist, whom he supervised, was drinking while practicing dentistry were sufficiently close in time to support an inference of causation between his disclosures and his termination in July 2009.

In response to the Health Center's asserted defense that it terminated plaintiff because of prior warnings and his mismanagement of his supervisee's alleged drinking, plaintiff raised issues of fact as to pretext by pointing to record evidence that he reported his supervisee's resumption of drinking to his superior as early as April 2009, but the superior told plaintiff only  to monitor the dentist and keep a log. Accordingly, there are issues of fact as to whether plaintiff was terminated based on his disclosures that his supervisee was drinking alcohol while practicing dentistry.

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