Opinion
# 2014-044-562 Claim No. 121122 Motion No. M-85220
11-12-2014
JANE E. RAICHLIN v. THE STATE OF NEW YORK
THE LAW OFFICES OF SCOTT K. TURNER, P.C. BY: Scott K. Turner, Esq., of counsel HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Joseph F. Romani, Assistant Attorney General
Synopsis
Claimant has failed to state a cause of action in her claim pertaining to the termination of her employment, allegedly in retaliation for a complaint she made. Moreover, defendant has set forth a separate and independent basis for claimant's termination, and is entitled to summary judgment dismissing the claim.
Case information
| UID: | 2014-044-562 |
| Claimant(s): | JANE E. RAICHLIN |
| Claimant short name: | RAICHLIN |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 121122 |
| Motion number(s): | M-85220 |
| Cross-motion number(s): | |
| Judge: | CATHERINE C. SCHAEWE |
| Claimant's attorney: | THE LAW OFFICES OF SCOTT K. TURNER, P.C. BY: Scott K. Turner, Esq., of counsel |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Joseph F. Romani, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | November 12, 2014 |
| City: | Binghamton |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
After receiving permission to file and serve a late claim (Raichlin v State of New York, UID No. 2012-044-500 [Ct Cl, Schaewe, J., Jan. 23, 2012]), claimant filed this 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, through Broome Developmental Center. Claimant contends that she was terminated in retaliation for a complaint about perceived misconduct by co-workers. Defendant State of New York (defendant) answered and asserted several affirmative defenses. Defendant thereafter received permission and filed and served an amended answer (Raichlin v State of New York, UID No. 2013-044-505 [Ct Cl, Schaewe, J., Jan. 29, 2013]). Defendant now moves to dismiss the claim for failure to state a cause of action, or in the alternative for summary judgment. Claimant opposes the motion.
Defendant argues that claimant's cause of action alleging a violation of Labor Law § 740 should be dismissed, as this statute pertains only to private employers rather than public employers. Defendant contends that because claimant first failed to inform the Director of the Broome Developmental Disabilities State Operations Office (BDDSOO) of her complaints about her co-workers, and then failed to inform the appropriate governmental body (such as the Office of Inspector General), the cause of action alleging a violation of Civil Service Law § 75-b should also be dismissed. Defendant further asserts that in any event, the existence of a separate and independent basis for claimant's termination supports dismissal of the Civil Service Law § 75-b cause of action on the merits.
Conversely, claimant contends that public employees are protected from retaliatory termination by both Labor Law § 740 and Civil Service Law § 75-b. She also asserts that by submitting a written complaint to a member of the BDDSOO management team, she in essence provided notice to the Director of the BDDSOO of the alleged abuse and/or neglect committed by her co-workers and thus complied with the statute. Lastly, claimant argues that defendant's purported separate and independent basis for her termination was fabricated after the fact and in any case has been deemed unfounded by another Court.
Claimant is apparently referring to a determination that she was not guilty of misconduct which would disqualify her from receiving unemployment benefits (see infra).
On this motion to dismiss the claim for failure to state a cause of action pursuant to CPLR 3211 (a) (7), the Court must "accept the facts as alleged in the [claim] as true, accord [claimant] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88 [1994]; see also Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]).
Claimant alleges that on or about August 26, 2010, she was hired as a Direct Support Assistant in Training and from that time until July 13, 2011 she received positive performance evaluations. She states that on June 24, 2011, she verbally reported to Supervisor Joanne Strapach that fellow employees Jeffrey Ellis and Jennifer Mathes had acted (or failed to act) in a manner which "was injurious to the physical or mental welfare of several disabled residents." Claimant asserts that the following day, Ellis refused to assist claimant with placing a resident into a bed because he was angry that she had complained to Strapach. Claimant states that she then used a mechanical (Hoyer) lift on her own and placed the resident into bed. Claimant asserts that even though Ellis had previously performed such a task on his own, he yelled at her for doing so without his assistance. She alleges that on June 27, 2011, she wrote a letter to Supervisor Edward Bennett detailing the incidents of mistreatment, neglect and abuse of patients which she had previously disclosed to Strapach. Claimant thereafter provided information about the purported mistreatment during an investigation. Claimant asserts that she was terminated on July 13, 2011 without cause and in violation of both Labor Law § 740 and Civil Service Law § 75-b, solely because she reported the instances of mistreatment and violations of the law to her supervisors. She further notes that at her unemployment hearing, the Administrative Law Judge (ALJ) found that her conduct in moving the resident without Ellis' assistance did not rise to the level of misconduct. She seeks damages in the amount of $75,000 and reinstatement to employment.
Claim, ¶ 12. Specifically, claimant stated that some residents were not given food or drink, were not provided clean clothing, and were not properly positioned in their beds.
As defendant correctly notes, Labor Law § 740 is applicable to wrongful discharge claims against private employers, but it is not applicable to public employers (see Hanley v New York State Exec. Dept., Div. for Youth, 182 AD2d 317, 320 [3d Dept 1992]; see also Frank v State of N.Y. Off. of Mental Retardation & Dev. Disabilities, 86 AD3d 183 [3d Dept 2011]; Yan Ping Xu v New York City Dept. of Health, 77 AD3d 40, 48 [1st Dept 2010]). Accordingly, to the extent that claimant is alleging a separate cause of action for violation of Labor Law § 740, it is dismissed.
Pursuant to Civil Service Law § 75-b (2) (a) (ii), a public employer may not take adverse employment action against a public employee based upon that employee's disclosure to a governmental body of information which "the employee reasonably believes . . . constitutes an improper government action" (see Zielonka v Town of Sardinia, 120 AD3d 925 [4th Dept 2014]; Hastie v State Univ. of N.Y. [SUNY] Coll. of Agric. & Tech. at Morrisville, 74 AD3d 1547 [3d Dept 2010], lv denied 16 NY3d 701 [2011]). Improper government action means "any action by a public employer or employee, or an agent . . . which is undertaken in the performance of [his or her duties] . . . and which is in violation of any federal, state or local law, rule or regulation" (Civil Service Law § 75-b [2] [a]). Civil Service Law § 75-b (1) (c) defines "Governmental body" as:
(i) an officer, employee, agency, department, division, bureau, board, commission, council, authority or other body of a public employer, (ii) employee, committee, member, or commission of the legislative branch of government, (iii) a representative, member or employee of a legislative body of a county, town, village or any other political subdivision or civil division of the state, (iv) a law enforcement agency or any member or employee of a law enforcement agency, or (v) the judiciary or any employee of the judiciary.
However, prior to disclosing information to a governmental body concerning the allegedly improper action, "an employee shall have made 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" (Civil Service Law § 75-b [2] [b]). "[A]n employee who acts pursuant to [Civil Service Law § 75-b (2) (b)] shall be deemed to have disclosed information to a governmental body under [Civil Service Law § 75-b (2) (a)]" (id.).
At the time claimant was terminated (and with an exception not relevant in the circumstances of this case), the appropriate appointing authority to whom claimant should have directed her complaints was the Director of the BDDSOO. Mental Hygiene § 13.21 (former [a]) provided that "the director of a school shall have the power . . . to appoint and remove in accordance with law and applicable rules of the state civil service commission such officers and employees of the facility of which he or she is director as are necessary for its efficient administration" (see also Civil Service § 2 [9] which defines "appointing authority" as "the officer, commission or body having the power of appointment to subordinate positions"). During this same time, the director of a school was also the director of the developmental disabilities services office serving the areas designated by the Commissioner (Mental Hygiene § 13.21 [former (a)]). Although claimant alleges that she informed her supervisors of the allegedly abusive/negligent treatment of the residents by her co-workers on June 24, 2011 and June 27, 2011, she does not allege that she advised the Director of the BDDSOO of her contentions. The claim lacks any allegation that claimant disclosed the pertinent information to anyone or any entity outside of her immediate supervisors and clearly fails to set forth compliance with the required precondition to stating a cause of action pursuant to Civil Service Law § 75-b. Accordingly, the claim may be dismissed solely on this basis (see generally Zielonka, 120 AD3d at 927; Matter of Garrity v University at Albany, 301 AD2d 1015, 1017 [3d Dept 2003]; cf. Hastie, 74 AD3d at 1548 [where the plaintiff's failure to notify any person or agency outside of the purported wrongdoers was fatal]; Tipaldo v Lynn, 48 AD3d 361 [1st Dept 2008], appeal after remand 76 AD3d 477 [1st Dept 2010]; lv granted 23 NY3d 904 [2014]; [where the "appointing authority" included the individual wrongdoers, the plaintiff's disclosure to his immediate supervisors and thereafter to the Department of Investigation satisfied the mandates of Civil Service Law § 75-b (2) (a), (b)]).
In 2012, the term "schools" was replaced in the section nameline with the term "state operations offices and developmental disabilities regional offices" and Mental Hygiene Law § 13 (a) was re-written into its current form (L 2012, ch 56, part J, § 3).
Although the claim is subject to dismissal on this basis, the Court will also address defendant's alternative argument that it is entitled to summary judgment on the merits. Defendant, as the movant on this motion, is required to set forth evidentiary facts in admissible form which establish a prima facie showing of entitlement to judgment as a matter of law (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Once this burden has been met, it is incumbent upon the opposing party to produce admissible evidence sufficient to create material issues of fact requiring a trial of the action (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). As defendant correctly notes, the existence of a separate and independent basis for discharging a public employee precludes liability pursuant to Civil Service Law § 75-b (see Rigle v County of Onondaga, 267 AD2d 1088 [4th Dept 1999], lv denied 94 NY2d 764 [2000]; Matter of Crossman-Battisti v Traficanti, 235 AD2d 566 [3d Dept 1997]; Matter of Colao v Village of Ellenville, 223 AD2d 792 [3d Dept 1996], lv dismissed and denied 87 NY2d 1041 [1996]; Roens v New York City Tr. Auth., 202 AD2d 274 [1st Dept 1994]).
In support of its motion, defendant submits an affidavit of Charles LaBarre who states that he was a Developmental Disabilities Program Specialist 1 during the time period at issue. He indicates that under the direction of Monica Ruzicka, a Treatment Team Leader for BDDSOO, he was responsible for the oversight of the residential program in Tompkins County and in that capacity, he supervised Edward Bennett (claimant's supervisor). LaBarre states that on June 25, 2011, he received a report that claimant (who worked at the Abbott Road house in Tompkins County) transferred an individual with severe osteoporosis and a history of fractures by using a mechanical Hoyer lift by herself, without assistance from a second staff member as required by BDDSOO directive and training. LaBarre indicates that he was assigned to investigate this allegation of abuse/neglect and conducted an interrogation of claimant in the presence of her employee union representative. LaBarre notes that during the interrogation, claimant admitted that she was aware of the individual's diagnosis of severe osteoporosis as well as the history of fractures. She also admitted that she knew BDDSOO policy required two staff members to be present when transferring an individual by using the Hoyer lift. However, she nevertheless transferred the individual without any assistance. LaBarre states that claimant then attempted to blame her co-worker for not moving quickly enough to assist her, but later stated that she never directly asked for the co-worker's assistance.
LaBarre's recollection is in accord with the transcript of claimant's interrogation attached to LaBarre's affidavit (Defendant's Motion to Dismiss, Exhibit 2).
LaBarre states that he met with Monica Ruzicka and Edward Bennett to discuss the substantiated allegation of abuse/neglect. LaBarre indicates that in light of claimant's knowledge of the individual's medical condition, her lack of concern for the individual's safety was particularly egregious. LaBarre states that he and Ruzicka informed Richard Lee in the Personnel Department that as a probationary employee, claimant's misconduct required that she be terminated. LaBarre notes that based upon BDDSOO policy, Lee agreed that termination was the appropriate penalty. LaBarre states that it was and still is standard practice to terminate a probationary employee against whom a charge of abuse/neglect has been substantiated. He also indicates that the determination to terminate claimant was based solely on the substantiated charge of abuse/neglect in violation of BDDSOO policy, as well as because of her lack of concern for the individual resident involved.
Defendant also submits an affidavit of Edward Bennett who states that during the relevant time period, he was a Developmental Assistant 3 and worked as part of the management team overseeing five group homes, including the one where claimant worked. He indicates that claimant was subject to a one-year probationary period. Bennett notes that claimant was initially a positive working employee who got along well with her peers. However, he indicates that after a few months, her demeanor changed. He states that claimant began to debate with veteran employees and projected an attitude that she knew what was best for the residents and that the rest of the staff should work at her speed. Bennett indicates that he had a discussion with claimant and told her that she needed to work with her co-workers as a team.
Bennett notes that on June 27, 2011, claimant presented him a letter containing allegations of abuse/neglect against her co-workers. Bennett further states that at the time he received claimant's letter, a report had already been filed against her indicating that she had used a Hoyer lift to transfer an elderly, frail and severely disabled resident without assistance from a second worker and in violation of BDDSOO policy. Bennett asserts that he met with Chuck LaBarre and Monica Ruzicka, and as a management team they determined that claimant was required to be terminated. Bennett indicates that the team found that claimant had jeopardized the safety of a frail individual and believed that claimant's action represented her belief that she was beyond reproach. They determined that her continued employment would jeopardize other residents. Bennett states that claimant's accusations against her co-workers did not enter into the determination to terminate her employment.
These allegations were the subject of a separate investigation.
Defendant has also submitted the affidavit of Monica Ruzicka who states that part of her duties during the relevant time included supervising Charles LaBarre, who in turn supervised Edward Bennett. She indicates when she was informed by the human resources department that an allegation of abuse/neglect against claimant had been substantiated, she reviewed the investigative report. Ruzicka notes that claimant admitted that she did not ask any of her co-workers for assistance and that she independently transferred a resident from a wheelchair to a bed using a Hoyer lift. Claimant also admitted being aware of the resident's frail medical condition, as well as the fact that her conduct was in violation of agency policy. Ruzicka asserts that at the time of the incident, BDDSOO's protocol was to terminate a probationary employee if charges of abuse or neglect were substantiated against him or her during the probationary period. She further states that because claimant's conduct in knowingly defying the agency's safety policy and risking the safety of the resident constituted unsatisfactory work performance, she (Ruzicka) supported the determination to terminate claimant.
Richard Lee, Director of Human Resources Operations, submits an affidavit in support of this motion. Lee indicates that based upon information obtained in LaBarre's investigation, claimant used a Hoyer lift without assistance from another staff member and transferred an individual with osteoporosis who had a history of fractures. Lee notes that after considering the facts, the management team of LaBarre, Ruzicka, and Bennett determined that termination of claimant's probationary employment was appropriate. Lee states that he concurred with the decision because it was consistently agency policy to terminate an probationary employee who had abused or neglected an individual in his or her care. He notes that an agency directive issued by Acting Executive Director James F. Moran on June 24, 2011 also mandated such termination. Lee asserts that when he informed claimant of her termination because of her unassisted use of the lift, she admitted that she was aware that she had been in breach of agency policy.
Coleen Fadden, Director of Institutional Human Resources Management 2, also provides an affidavit in support of defendant's motion. Fadden states that claimant's termination was mandated by the agency directive issued by Acting Executive Director Moran. That directive provided that termination would be pursued "against employees found to have committed . . . [n]eglect that is egregious and put individuals at serious risk of harm." Fadden states that claimant's transfer of a seriously medically frail resident by using a Hoyer lift without assistance from a co-worker placed that resident at risk of serious injury. Fadden indicates that as Director of Human Resources Management she had no discretion with respect to claimant's penalty and was required to terminate claimant's employment. Fadden states that she had no knowledge of claimant's allegations against her (claimant's) co-workers at the time of her termination.
Affidavit of Coleen Fadden, sworn to May 28, 2014 (Defendant's Motion to Dismiss, Exhibit I), Exhibit 3 at 3-4.
Defendant has also submitted a copy of Section H-6-1 of the Nursing Policy and Procedure (the Policy) concerning the use of a mechanical lift. The Policy provides that the purpose of the mechanical lift is to transfer an individual from a bed to a chair or vice versa. In its section of Special Considerations, the Policy indicates that because "no two individuals are alike, a reasonable amount of ingenuity should be exercised to establish the most effective method of handling in each instance." The Policy then clearly states that "[a] minimum of two people is necessary for safe transfer with a mechanical lift." The section entitled Procedure likewise indicates that "[t]wo staff are to use the lift."
Id., Exhibit 2.
Id. (emphasis in original).
Id. at 2.
Through its submissions, defendant has met its burden of setting forth admissible evidence that there was a separate and independent basis for terminating claimant's employment. The burden now shifts to claimant to submit admissible evidence which creates a question of fact.
The Court notes that, inexplicably, neither claimant nor her counsel has submitted an affidavit or affirmation in opposition to this motion. Instead, counsel has submitted a memorandum of law with three attached exhibits. Claimant argues that because the ALJ determined that her conduct in using a lift by herself "was an isolated incident of poor judgment and [did] not rise to the level of misconduct under the meaning of the unemployment insurance law," defendant did not have an independent basis for terminating her employment.
Two of the three exhibits were included in defendant's motion papers and are already properly before the Court. The remaining exhibit is a copy of the decision of an Unemployment Insurance ALJ. Notwithstanding counsel's unorthodox method of attaching evidentiary material to a memorandum of law rather than to an affirmation or affidavit, the Court will nevertheless consider this exhibit in opposition to this motion.
Claimant's Memorandum of Law dated Aug. 11, 2014, Exhibit 1 at 2.
Claimant's reliance on the ALJ's determination is misplaced. It is well-settled that conduct such as negligence or carelessness which is sufficient for termination may not be sufficient to disqualify a former employee from receiving unemployment benefits (see e.g. Matter of Marten [Eden Park Nursing Home - Commissioner of Labor], 255 AD2d 638 [3d Dept 1998]). The mere fact that claimant was not disqualified from receiving unemployment benefits in this instance does not establish that her termination was without cause. Claimant has not submitted any admissible evidence which creates a question of fact as to whether her termination was due to anything other than a substantiated finding that she was guilty of abuse/neglect in violating BDDSOO policy. Because claimant failed to meet her burden, defendant is entitled to summary judgment dismissing the claim on the merits (Rigle, 267 AD2d at 1089; Crossman-Battisti, 235 AD2d at 568; Colao, 223 AD2d at 793-794; Roens, 202 AD2d at 275).
"Inefficiency, negligence and bad judgment are valid causes for discharge but do not render a claimant ineligible for benefits" (Matter of Fiscarelli [Ross], 65 AD2d 855, 856 [3d Dept 1978]; see also Matter of James [Levine], 34 NY2d 491 [1974]).
In conclusion, Labor Law § 740 is not applicable to a public employer and the cause of action alleging a violation thereof is dismissed. Claimant has failed to set forth sufficient allegations to satisfy the precondition of Civil Service Law § 75-b and therefore has failed to state of a cause of action pursuant to this statute. Moreover, defendant has set forth a separate and independent basis for claimant's termination and is also entitled to summary judgment dismissing the claim on the merits.
Accordingly, defendant's motion is granted and Claim No. 121122 is dismissed in its entirety.
November 12, 2014
Binghamton, New York
CATHERINE C. SCHAEWE
Judge of the Court of Claims
The following papers were read on defendant's motion:
1) Notice of Motion filed on June 6, 2014; Affirmation of Joseph F. Romani, Assistant Attorney General, dated June 4, 2014, and attached exhibits; Memorandum of Law dated June 4, 2014.
2) Claimant's Memorandum of Law dated August 11, 2014, and attached exhibits.
Filed papers: Claim filed on April 3, 2012; Verified Answer filed on May 14, 2012; Amended Answer filed on March 4, 2013.