Opinion
# 2012-044-500 Motion No. M-80656
01-23-2012
RAICHLIN v. THE STATE OF NEW YORK
Synopsis
Court granted permission to late file claim alleging cause of action for retaliatory termination under whistleblower statute. Case information
UID: 2012-044-500 Claimant(s): JANE E. RAICHLIN Claimant short RAICHLIN name: Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant The Court has sua sponte amended the caption to reflect the name) : State of New York as the sole proper defendant. Third-party claimant(s): Third-party defendant(s): Claim number(s): None Motion number(s): M-80656 Cross-motion number (s): Judge: CATHERINE C. SCHAEWE Claimant's TURNER INDEPENDENT LAW, P.C. attorney: BY: Scott K. Turner, Esq., of counsel Defendant's HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL attorney: BY: Anthony Rotondi, Assistant Attorney General Third-party defendant's attorney: Signature date: January 23, 2012 City: Binghamton Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant moves for permission to file and serve a late claim to recover damages based upon her termination from employment at a residence for individuals with developmental disabilities operated by the State Office for People with Developmental Disabilities (OPWDD), through Broome Developmental Center (BDC). Defendant State of New York (defendant) opposes the motion.
A motion seeking permission to file and serve a late claim must be brought within the statute of limitations period attributable to the underlying cause of action (Court of Claims Act § 10 [6]). Claimant alleges that she was discharged from her position because she reported instances of mistreatment of the residents by her coworkers. Claimant appears to be asserting a cause of action under the public employee whistleblower statute (see Civil Service Law § 75-b), for which the applicable statute of limitations is one year (see Civil Service 75-b [3] [c]; Labor Law § 740 [4] [a]). Because claimant's employment terminated on July 13, 2011, this motion mailed on November 21, 2011 is timely (see e.g. Matter of Unigard Ins. Group v State of New York, 286 AD2d 58 [2001]).
Claimant also alleges that OPWDD staff falsely reported to the Department of Labor that she had been discharged for misconduct, causing the denial of unemployment insurance benefits. To the extent that she may be seeking to recover any potential unemployment benefits, her motion for late claim relief must be denied. "[R]egardless of how a claimant categorizes a claim . . . [if] the claim would require review of an administrative agency's determination . . . the Court of Claims has no subject matter jurisdiction" (City of New York v State of New York, 46 AD3d 1168, 1169 [2007], lv denied 10 NY3d 705 [2008]). Claimant's exclusive remedy with respect to her unemployment benefits is to pursue the procedure set forth in Labor Law Article 18 (see Prowse v State of New York, 4 AD3d 581 [2004]).
Having determined that the motion is timely, the Court turns to a consideration of the merits of the motion itself. The factors that the Court must consider under Court of Claims Act § 10 (6) in determining a motion to permit a late filing of a claim are whether:
1) the delay in filing the claim was excusable;
2) defendant had notice of the essential facts constituting the claim;
3) defendant had an opportunity to investigate the circumstances underlying the claim;
4) the claim appears to be meritorious;
5) the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to defendant; and
6) claimant has any other available remedy.
Counsel for claimant states that he filed the claim within 90 days of its accrual, transmitting it by facsimile to the Clerk of the Court on September 27, 2011. Counsel asserts that when his credit card statement did not reflect a charge for the filing fee, he contacted the Court and learned that the facsimile he sent was blank. He indicates that he had not previously received any notification of the defect from the Court. Even accepting the truth of these allegations, there is no evidence that claimant attempted service upon the Attorney General's Office at any point during the 90-day statutory period. Claimant's counsel's proffered reason is not an adequate excuse for the delay in timely serving a notice of intention or timely filing and serving a claim (see Matter of Sandlin v State of New York, 294 AD2d 723 [2002], lv dismissed 99 NY2d 589 [2003]; Plate v State of New York, 92 Misc 2d 1033 [1978]). Accordingly, this factor weighs against claimant.
The three factors of notice of the essential facts, an opportunity to investigate and the lack of substantial prejudice are frequently analyzed together since they involve similar considerations. Claimant argues that her complaints of mistreatment of the residents by her
coworkers prompted a State investigation which afforded defendant notice as well as an opportunity to conduct interviews of employees and issue reports. Claimant also contends that she provided a detailed statement concerning the alleged mistreatment of the residents. Further, claimant states that the Department of Labor conducted an "inquiry which is [ ] the subject of a pending unemployment benefits hearing," providing defendant with a second opportunity to investigate the matter.
Affirmation of Scott K. Turner, Esq., dated Oct. 24, 2011, in Support of Claimant's Motion for Permission to File and Serve a Late Claim, ¶ 10.
In order to charge defendant with notice, a claimant must establish either that supervisory-level State officials were aware of the incident or that the incident itself is the type of event that would, in normal course, be investigated by supervisory personnel (Anadio v State of New York, Ct Cl, Mar. 31, 2003, Hard, J., Claim No. None, Motion No. M-65975 [UID # 2002-032-032]; Avila v State of New York, 131 Misc 2d 449 [1986]). While defendant may have had notice of the alleged misconduct of claimant's coworkers towards the residents, the subject matter of this claim concerns conduct directed towards claimant, specifically the alleged retaliatory termination. The allegations are insufficient to establish that a supervisory employee of defendant had notice of the essential facts of the claim, and claimant is therefore not entitled to a favorable inference on this issue. Although defendant conducted investigations concerning the purported mistreatment of the residents, it did not have an opportunity to investigate the essential facts concerning claimant's termination. Thus, the factors of both notice and an opportunity to investigate weigh against claimant.
However, defendant does not assert that there will be substantial prejudice to the State in defending this claim, nor does the Court discern any prejudice. Therefore, the lack of substantial prejudice weighs in favor of claimant.
Another factor to be considered is whether claimant has any other available remedy. Claimant asserts that defendant terminated her from her employment with the State in retaliation for her complaints regarding the abuse or mistreatment of the residents by fellow employees. The Court of Claims is the proper forum for this proposed cause of action for wrongful termination. This factor weighs in favor of claimant.
The issue of whether the proposed claim appears meritorious is the most crucial component in determining a motion under Court of Claims Act § 10 (6), since it would be futile to permit a meritless claim to proceed (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 10 [1977]). In order to establish a meritorious claim, a claimant must demonstrate that the proposed claim is not patently groundless, frivolous, or legally defective, and that there is reasonable cause to believe that a valid claim exists (id. at 11). There is a heavier burden on a party moving for permission to file a late claim than on a claimant who has complied with the provisions of the Court of Claims Act (see id. at 11-12; see also Nyberg v State of New York, 154 Misc 2d 199, 202-203 [1992]).
Civil Service Law §§ 75-b (2) (a); (3) (a), and (b) provide in pertinent part that:
A public employer shall not dismiss or take other disciplinary or other adverse personnel action against a public employee regarding the employee's employment because the employee discloses to a governmental body information: (i) regarding a violation of a law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety; or (ii) which the employee reasonably believes to be true and reasonably believes constitutes an improper governmental action. "Improper governmental action" shall mean any action by a public employer or employee, or an agent of such employer or employee, which is undertaken in the performance of such agent's official duties, whether or not such action is within the scope of his employment, and which is in violation of any federal, state or local law, rule or regulation.
. . .
Where an employee is subject to dismissal or other disciplinary action under a final and binding arbitration provision, or other disciplinary procedure contained in a collectively negotiated agreement, or under [Civil Service Law § 75] or any other provision of state or local law and the employee reasonably believes dismissal or other disciplinary action would not have been taken but for the conduct protected under [Civil Service Law § 75-b (2)], he or she may assert such as a defense before the designated arbitrator or hearing officer. The merits of such defense shall be considered and determined as part of the arbitration award or hearing officer decision of the matter.
. . .
Where an employee is subject to a collectively negotiated agreement which contains provisions preventing an employer from taking adverse personnel actions and which contains a final and binding arbitration provision to resolve alleged violations of such provisions of the agreement and the employee reasonably believes that such personnel action would not have been taken but for the conduct protected under subdivision two of this section, he or she may assert such as a claim before the arbitrator. The arbitrator shall consider such claim and determine its merits.
However, if the employee is not subject to either the provisions of Civil Service Law § 75-b (3) (a) or (b), and thus cannot assert the retaliatory dismissal as a defense or separate claim in a disciplinary proceeding, he or she "may commence an action in a court of competent jurisdiction under the same terms and conditions as contained in [Labor Law §§ 740-741]" (Civil Service Law § 75-b [3] [c]; Court of Claims Act § 9 [13]).
Claimant alleges that she orally complained to Joanne Strapach, a supervisor, that two of claimant's coworkers had mistreated several residents. Believing that her complaint to Strapach was either ignored or suppressed, claimant then detailed her concerns in a written letter to Edward Bennett. She was then interviewed by an OPWDD investigator. Claimant alleges that within weeks of the interview, she was terminated from her employment without cause in retaliation for her reports of mistreatment. In her proposed claim, claimant specifically asserts that one of the residents allegedly mistreated is a Willowbrook Class Member entitled to the protections afforded by the Willowbrook Permanent Injunction.
Based upon the content of the letter to Mr. Bennett, it appears that he also may be employed by OPWDD in a supervisory capacity (Proposed Claim [Affirmation of Scott K. Turner, Esq., dated Oct. 24, 2011, in Support of Claimant's Motion for Permission to File and Serve a Late Claim, Exhibit D], Exhibit A).
"The Willowbrook litigation commenced in U.S. District Court in 1972 seeking to correct unacceptable conditions at the Willowbrook State School in Staten Island, NY. The Willowbrook Consent Decree became effective on behalf of class members on May 5, 1972. This lawsuit was not only a landmark case and catalyst for the State of New York to reform its service system for people with developmental disabilities, but it also became a symbol for raising the conscience of the nation to support deinstitutionalized care and treatment and to establish high standards for humane conditions both in residential settings and institutional environments. The Willowbrook Permanent Injunction, which was signed in 1993, represents the current standards of services for class members" (see e.g. http://www.opwdd.ny.gov/willowbrook/index.jsp).
In this motion, claimant has set forth factual allegations that she reported misconduct of other employees to at least one person in a supervisory position prior to disclosing the conduct to an OPWDD investigator (see e.g. Labor Law § 740 [3]). Further, claimant alleges that these employees violated federal law when they violated the Willowbrook Permanent Injunction by mistreating a resident who is a member of the Willowbrook Class. Claimant was then terminated, allegedly as a result of her complaints of resident mistreatment. Accordingly, claimant has established at least the initial appearance of merit.
Three of the six statutory factors, including the crucial factor of merit, weigh in favor of claimant. Claimant's motion for permission to file and serve a late claim is hereby granted with respect to her cause of action for retaliatory termination under the whistleblower statute. Claimant shall file a claim containing the information required by Court of Claims Act § 11 (b). Claimant shall file said claim and serve a copy of it upon the Attorney General within thirty (30) days from the date of filing of this Decision and Order in the Office of the Clerk of the Court. The service and filing of the claim shall be pursuant to the strict requirements of the Court of Claims Act.
January 23, 2012
Binghamton, New York
CATHERINE C. SCHAEWE
Judge of the Court of Claims
The following papers were read on claimant's motion:
1) Notice of Motion filed on November 23, 2011; Affirmation of Scott K. Turner, Esq., dated October 24, 2011, and attached exhibits.
2) Affirmation in Opposition of Anthony Rotondi, Assistant Attorney General, dated December 8, 2011.