DOE's Motion to Dismiss CSL 75-b Whistleblower Case Denied

DOE’s Motion to Dismiss CSL 75-b Whistleblower Case Denied


          The “whistleblower action” pursuant to Civil Service Law 75-b, claimed that Plaintiff, guidance counselor, was wrongfully terminated after “complaining to the school principal regarding improper suspensions and inadequate supervision of students.”  Defendant, Department of Education of the City of New York, filed a motion to dismiss the amended complaint based on the failure to submit a Notice of Claim, SOL, collateral estoppel, and the accessibility of a solution under the collective bargaining agreement. 

          A NOC was not filed in the instant case.  Education Law 3813 requires such filing within 3 months of the accrual of claim.  In the case sited by the Plaintiff, a NOC is not required where the relief sought is “equitable in nature.”  In the instant case Plaintiff sought reinstatement and other equitable relief.  Therefore, the Court held that the NOC was not “a condition precedent to this action.”

          Defendant also moved to dismiss the proceedings because Plaintiff failed to report the alleged misconduct to an appropriate governmental body under Civil Service Law 75-b.  Subdivision (2)(b) of 75-b mandates that an employee make “a good faith effort to provide the appointing authority or his or her designee the information to be disclosed and shall provide the appointing authority or designee a reasonable time to take appropriate action … (A)n employee who acts pursuant to this paragraph shall be deemed to have disclosed information to a governmental body under paragraph (a) of this subdivision.”  Plaintiff reported the alleged misconduct to the head of the school.  The Court found that the internal complaint satisfied the reporting requirement with Civil Service Law 75-b.

          Defendant also moved to dismiss the proceedings because they proposed it was barred by applicable statute of limitations.  The Court determined that the proceedings were within the time limits provided in CPLR 205(a). 

          The Court found that the Defendants argument that Plaintiff’s action is barred by collateral estoppel was also without merit.  As stated above, the Court found that no external complaint was mandated to satisfy Civil Service Law 75-b.

          Defendant’s argument that Civil Service Law 75-b(3)(a) and (3)(b) that plaintiff was subject to a collective bargaining agreement, that provided Plaintiff the opportunity to contest his termination, was denied. 

          The Court denied defendant’s motion to dismiss the amended complaint.  So ordered that the defendant serve an answer to the amended complaint and that the parties meet for a preliminary conference. 


NY Public Personnel Law on Whistleblower case

 The always informative NY Public Personnel law blog on a recent whistleblower case:

Arbitrator’s refusal to hear employee’s “whistle blower” defense in the course of disciplinary hearing requires the vacating of the award

Arbitrator’s refusal to hear employee’s “whistle blower” defense in the course of disciplinary hearing requires the vacating of the award

Matter of Kowaleski v New York State Dept. of Correctional Servs., 2010 NY Slip Op 09379, Decided on December 21, 2010, Court of Appeals

Barbara Kowaleski, a correction officer employed by the New York State Department of Corrections, was served with disciplinary charges alleging that she violated provisions of the employees' manual on three separate occasions when she "made inappropriate comments of a personal nature about another staff member in the presence of staff and inmates"; argued with a fellow employee; and was "disrespectful and insubordinate" when she ignored a superior's order.
The proposed penalty: termination and the loss of any accrued leave.

Ultimately the matter was submitted to a disciplinary arbitration.

At the outset of the hearing, Kowaleski argued that the disciplinary action was only being brought to retaliate against her for reporting a fellow officer's misconduct and that she was entitled to raise this as an affirmative defense pursuant to Civil Service Law §75-b, contending that §75-b prohibits public employers from retaliating against employees for reporting their coworkers' improper conduct.

The arbitrator determined that because the Collective Bargaining Agreement [CBA] limited his authority "to determinations of guilt or innocence and the appropriateness of proposed penalties," he lacked authority to consider Kowaleski's retaliation defense. The arbitrator, however, indicated that he would consider evidence of retaliation when determining witness credibility and "in the larger context of guilt or innocence."

The arbitrator found Kowaleski guilty of two of the three charges and determined that termination was appropriate and Kowaleski filed a petition pursuant to Article 75 of the CPLR seeking to have the award vacated.

Although Supreme Court and the Appellate Division rejected Kowaleski’s appeal, the Court of Appeals reversed the lower courts’ rulings “[b]ecause we find that the arbitrator's failure to separately consider and determine Kowaleski's affirmative defense of retaliation on the merits requires the award to be vacated”

The Court of Appeals explained that an arbitration award must be vacated if, as relevant here, a party's rights were impaired by an arbitrator who "exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made (see CPLR 7511 [b] [1] [iii]). Further, said the court, an arbitrator "exceed[s] his power" under the meaning of the statute where his "award violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power."

As the lower courts found, and Correction conceded, the arbitrator “not only had authority to consider Kowaleski's retaliation defense, but was required to do so.”

Further, the opinion indicates that Civil Service Law §75-b prohibits a public employer from taking disciplinary action to retaliate against an employee for reporting "improper governmental action" and in the event the employee reasonably believes disciplinary action would not have been taken “but for" the whistle blowing, the employee may assert such as a defense before the designated arbitrator or hearing officer."

Whatever the terms of the CBA, the Court of Appeals said that
"[t]he merits of such defense shall be considered and determined as part of the arbitration award or hearing officer decision." Further, should the arbitrator or hearing officer find that the disciplinary action is based “solely on the employer's desire to retaliate,” the disciplinary proceeding must be dismissed.

Accordingly, the arbitrator's finding that he did not have authority under the CBA to consider Kowaleski's retaliation defense was not only incorrect as a matter of law, but also in excess of an explicit limitation on his power. Because he failed to consider and determine the defense, the court ruled that the award must be vacated.

Finally, the Court of Appeals noted the Kowaleski has requested that any rehearing be before a different arbitrator. That request, said the court, should be ruled on by Supreme Court in the exercise of its discretion.

The decision is posted on the Internet at: