Our Award Winning New York Whistleblower Lawyer has been asked to comment on a recent decision by the Appellate Division, which could be considered a victory for employees. Whistleblower cases in New York State often can be an uphill battle and difficult to navigate due to the procedural issues and the limitations of the law. Dr. Robert Blashka, a dentist, filed a whistleblower complaint in state court under Section 741 of the New York Labor Law wherein he alleged that his former employer terminated him in retaliation for his complaint about certain practices involving patient care. Specifically, he complained that another dentist had an alcohol addiction that could affect patient care. The employer denied any liability and filed a motion for summary judgment. In response, the trial court dismissed Dr. Blashka’s case and stated that he failed to identify any law, rule or regulation that he reasonably believed that his employer violated. The case did not end there as it does many times because Dr. Blashka filed an appeal.
This is sometimes referred to the healthcare whistleblower statute in New York as it is more specific than Section 740. In order to bring a claim under this section, a plaintiff must allege the following: 1) he or she is a covered employee within the meaning of the statute; 2) that he or she disclosed or threatened to disclose an activity, policy, or practice of the employer to a supervisor or a public body; 3) that he or she, in good faith, reasonably believed that the activity, policy, or practice constituted a violation of a law, rule, regulation, or declaratory ruling adopted pursuant to law; and 4) that the violation presented either a substantial and specific danger to public health or safety or a significant threat to the health of a specific patient Labor Law § 741; Minogue v Good Samaritan Hosp., 100 AD3d 64 (2012); and Webb-Weber v Community Action for Human Services, Inc., 98 AD3d 923 (2012), 20 NY3d 855 (2013). The employer can defend its action by stating that any adverse action such a termination or demotion was done for reasons other than the employee’s exercise of rights protected by this section.
In this case, Dr. Blashka, a healthcare worker, alleged that he complained about a dentist who had an alcohol addiction and could be a risk to patients and was then terminated. The employer said his employment was terminated for performance reasons separate from his complaint.
The Appellate Division reversed the trial court’s decision and said that Dr. Blashka’s affidavit in opposition to the motion for summary judgment specifically stated that permitting a dentist to practice dentistry while intoxicated violates Education Law §§ 6509(3)-(4) and Board of Regents Rule 29.1 (8 NYCRR § 29.1). A plantiff is no longer required to plead the specific violation of law, rule or regulation in the Complaint. The Court stated that the timing of Dr. Blashka’s complaints of protected activity and his termination could support an inference of retaliation. Dr. Blashka raised his concerns in May and June 2009 and he was terminated in July. Timing a powerful tool in whistleblower cases. The employer defended itself by claiming Dr. Blashka’s termination was for performance reasons, which Dr. Blashka denied. The court also reversed the trial court’s grant of summary judgment because there are issues of fact for a jury to decide.
This case will now proceed towards trial. If you believe you have been retaliated or know of any fraud in the workplace, contact our office at (800) 893-9645 for a confidential consultation to learn your rights and options. First steps are important in whistleblower cases.