Opinion
No. 101823/2011.
2012-02-15
Juan MEDINA, Plaintiff, v. DEPARTMENT OF EDUCATION OF the CITY OF NEW YORK, Defendant.
Stewart Lee Karlin, New York, for plaintiff. Corp Counsel, New York, for defendant.
Stewart Lee Karlin, New York, for plaintiff. Corp Counsel, New York, for defendant.
MARCY S. FRIEDMAN, J.
In this whistleblower action, brought under Civil Service Law § 75–b, plaintiff claims that he was wrongfully terminated from his position as a guidance counselor after complaining to the school principal regarding improper suspensions and inadequate supervision of students. (Amended Complaint, ¶¶ 7–10.) Defendant moves to dismiss plaintiff's amended complaint on the grounds that the action is barred by failure to serve a Notice of Claim, the statute of limitations, collateral estoppel, and the availability of a remedy under a collective bargaining agreement.
For a description of the facts, see Medina v. Dept. of Educ. of the City of New York (2011 U.S. Dist LEXIS 5194, *2 [SDNY 2011].)
Education Law § 3813 requires filing of a Notice of Claim within three months of the accrual of a claim relating to district property or property of schools. (Ed. Law § 3813[1].) It is undisputed that a Notice of Claim was not filed in the instant case. Defendant cites case law that a Notice of Claim is required, pursuant to Education Law § 3813, for a claim brought under Civil Service Law § 75–b. However, defendant's authorities either do not state the nature of the relief sought (i.e., whether money damages or equitable relief was sought) or involve claims for monetary relief in addition to equitable relief. ( See Moore v. Middletown Enlarged City School Dist., 57 AD3d 746 [2nd Dept 2008]; see also Donas v. City of New York, 62 AD3d 504 [1st Dept 2009] [General Municipal Law § 50–e]; Yan Ping Xu v. New York City Dept. of Health, 77 AD3d 40 [1st Dept 2010] [same].)
In contrast, the authority cited by plaintiff clearly holds that a Notice of Claim is not required where the only relief sought is equitable in nature. (Kahn v. New York City Dept. of Educ., 79 AD3d 521 [1st Dept 2010], citing Ruocco v. Doyle, 38 A.D.2d 132 [2nd Dept 1972] [both decided pursuant to Education Law § 3813 but not involving Civil Service Law § 75–b claims]; accord Civ. Svc. Empl. Assn., Inc. v. Bd. of Educ. of City of Yonkers, 87 AD3d 557 [2nd Dept 2011].)
Here, plaintiff seeks only reinstatement and other equitable relief. (Amended Complaint, Wherefore Clause.) The court accordingly holds that a Notice of Claim was not a condition precedent to this action.
Defendant also moves to dismiss on the ground that plaintiff failed to report the alleged misconduct to an appropriate governmental body under Civil Service Law § 75–b. Subdivision (2)(a) of § 75–b provides: “A public employer shall not dismiss or take other disciplinary or other adverse action against a public employee regarding the employee's employment because the employee discloses to a governmental body information” regarding a violation of a law, rule or regulation that creates a substantial and specific danger to public health, or improper governmental action. Subdivision (2)(b) of § 75–b requires 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.”
Contrary to defendant's contention, Civil Service Law §§ 75–b(2)(a) and (2)(b) do not define “governmental body” as a body external to the plaintiff's immediate supervisor. An internal complaint may be insufficient to satisfy the statute where the complaint is made only to the wrongdoer ( see Tipaldo v. Lynn, 48 AD3d 361 [1st Dept 2008]; Hastie v. State Univ. of New York, 74 AD3d 1547 [3rd Dept 2010], lv denied16 AD3d 701 [2011] ) or where the report of wrongdoing was made within the plaintiff's own agency for the purpose of seeking “informal advice” rather than corrective action. (Brohman v. New York Convention Ctr. Operating Corp., 293 A.D.2d 299, 300 [1st Dept 2002].) Put another way, an external complaint may be necessary where a report solely to the internal authority would have been futile because the internal authority was the wrongdoer. ( See Tipaldo, 48 AD3d at 362.)
Notwithstanding the extensive body of appellate law on this issue, defendant relies primarily on Bal v. City of New York (266 A.D.2d 79 [1st Dept 1999] ) in support of its contention that an external complaint to a government agency is required under Civil Service Law § 75–b. Bal held that an internal report of misconduct to the allegedly guilty supervisor or to mistreated subordinates was insufficient. Bal is thus consistent with the cases cited above. It does not stand for the proposition, advanced by defendant, that an internal complaint by the plaintiff to a supervisor in the department or agency in which the plaintiff is employed is not, as a matter of law, a complaint to a governmental body. Matter of Garrity v. Univ. at Albany (301 A.D.2d 1015 [3rd Dept 2003] ) also cited by defendant, similarly held not that a complaint to external authorities is a condition precedent to maintenance of a § 75–b claim, but that the petitioner did not afford his own superiors a reasonable time to investigate, as required by § 75–b(2)(b), prior to reporting to external authorities.
Significantly, internal complaints to the plaintiff's supervisor will be held sufficient to satisfy Civil Service Law § 75–b absent a showing by the agency defendant as to why the complaint to the supervisor was insufficient, or that the petitioner could have or should have notified someone else in order to obtain corrective action. ( See Xu, 77 AD3d at 47;see also Jaeger–Ramberg v. NYC Health and Hosps. Corp., 2007 WL 2176391 [Sup Ct N.Y. County 2007] [complaints to numerous management personnel individuals and committees, at least some of whom were not the individuals alleged to be the wrongdoers, were sufficient].)
Insofar as appears from the pleadings, plaintiff complained to the head of the school, not the alleged wrongdoers, seeking corrective action. On this record, the court finds that this internal complaint was sufficient to meet the reporting requirement of Civil Service Law § 75–b.
Defendant moves to dismiss the amended complaint on the grounds that it is barred by the applicable statute of limitations. The case was filed within the time limits provided in CPLR 205(a). The statute of limitations is accordingly not a valid basis on which to dismiss the complaint.
Defendant's argument that plaintiff's action is barred by collateral estoppel is without merit, as it is based on the finding of the federal court dismissing plaintiff's federal § 1983 claim that plaintiff failed to complain to anyone external to the school system about his concerns. ( Medina v. Dept. of Ed. of the City of New York, 2011 U.S. Dist LEXIS 5194 [SDNY 2011].) As held above, however, no showing was made here than an external complaint was required to satisfy Civil Service Law § 75–b.
Finally, defendant argues that Civil Service Law §§ 75–b(3)(a) and (3)(b) preclude this action because plaintiff was subject to a collection bargaining agreement (CBA) that provided an arbitration process under which plaintiff could have contested his termination. Defendant fails, however, to make any showing as to the provisions of the alleged CBA. It is noted that the website cited by defendant is accessible to UFT-represented employees only. This branch of the motion will accordingly be denied without prejudice to renewal on a record that addresses the above omission, and cites legal authority on the effect of the CBA.
It is accordingly hereby ORDERED that defendant's motion to dismiss the amended complaint is denied, except that the branch of the motion to dismiss based on the bar of the collective bargaining agreement is denied without prejudice; and it is further
ORDERED that defendant shall serve an answer to the amended complaint within 20 days after service of a copy of this order with notice of entry; and it is further
ORDERED that the parties shall appear in Part 57 of this court on April 12 at 11 a.m. for a preliminary conference.
This constitutes the decision and order of the court.