Plaintiffs claims of retaliatory termination based on the filing of a complaint with the Occupational Safety and Health Administration (OSHA), however, were properly dismissed. Labor Law § 740 (4) (c) provides that "[i]t shall be a defense . . . that the personnel action was predicated upon grounds other than the employee's exercise of any rights protected by this section" ( DaSilva v Clarkson Arms, 189 AD2d 619, 619-620). Defendant offered documentary evidence showing that plaintiff was not terminated in retaliation for filing a complaint with OSHA, and, in opposition, plaintiff failed to rebut defendant's evidence.
Plaintiff only speculates that someone might have overheard his telephone conversations with Clair, and he does not even disclose what the substance of those talks was. Likewise, while plaintiff postulates that someone might have espied him talking with Cross in a restaurant near the hospital, there is no evidence that plaintiff's superiors had any knowledge of the conversation. Defendant, on the other hand, has established its defense (see, Labor Law § 740 Lab. [4] [c]) that it had a valid reason for plaintiff's termination other than plaintiff's exercise of rights protected by Labor Law § 740 Lab. (see, DaSilva v. Clarkson Arms, 189 A.D.2d 619), and the complaint should therefore be dismissed. The affidavits of plaintiff and Dr. Michael Marin, his direct superior, conflict as to whether the two men had an "understanding" that plaintiff would be paid for holidays on which he did not work, and thus the court properly denied plaintiff's motion for partial summary judgment to dismiss the counterclaim for fraud in submitting false time sheets.
IV.Defense to Whistleblower Claim Labor Law § 740(4)[c] provides in pertinent part that "[i]t shall be a defense to any action brought pursuant to this section that the personnel action was predicated upon grounds other than the employee's exercise of any rights protected by this section (see DaSilva v Clarkson Arms, Inc., 189 AD2d 619, 619-620 [1st Dept 1993]). According to MCU, plaintiff was terminated based on the recommendation of W. Birnbach ("Bimbach"), her supervisor in the position she occupied from August 7 to October 2, 2006 (see 9/28/06 memorandum from Birnbach to Thompson, exhibit B to plaintiffs response to MCU's request for production of documents, at MCU's exhibit C).
There simply is no basis to interpret the statute to exclude from its protection employees who go along with an employer's unlawful scheme prior to the employee's asserting the rights afforded under the Whistleblower Law. Defendant's reliance on DaSilva v Clarkson Arms ( 189 A.D.2d 619 [1st Dept 1993]) in this regard is misplaced. In DaSilva, the Court granted additional discovery to the plaintiff's former employer to determine whether the plaintiff bore some responsibility for the act attributed to defendants' former president.