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.