In Kamdem-Ouaffo v. Pepsico, Inc., 133 A.D.3d 825, 21 N.Y.S.3d 150, 152 (N.Y. App. Div. 2015), the Appellate Division, Second Department dismissed plaintiff’s claim brought pursuant to New York’s “whistleblower law”, codified at Labor Law § 740.
Plaintiff alleged
that his employment was terminated, his contract was not renewed, and he was not offered a permanent position with the defendant in retaliation for communications he made to supervisors concerning alleged violations of law and regulations related to research he was conducting on an aroma encapsulate which contained formaldehyde. The complaint also asserted causes of action sounding in negligence and negligent supervision, among others, alleging that the plaintiff was directed to sniff the aroma encapsulate slurry without notice of its formaldehyde content or adequate training on proper protective equipment.
“In order to recover under Labor Law § 740, a plaintiff must establish that an actual violation of law or regulation occurred; a plaintiff’s reasonable belief that a violation occurred is insufficient.”
Applying the law to the facts, the court held:
Here, the defendant established its prima facie entitlement to judgment as a matter of law on the third and fourth causes of action asserted pursuant to the whistleblower statute by demonstrating that neither the plaintiff’s June 30, 2009, communication concerning alleged violations of the “Delaney Clause” of the Food, Drug and Cosmetic Act applicable to food additives (see 21 U.S.C. § 348[c][3][A] ), or his later communications concerning alleged violations of Occupational Safety and Health Administration (hereinafter OSHA) regulations, involved actual violations of law or regulation. The June 30, 2009, email concerned a product which was still in conceptual stages and, thus, there was no actual violation of the Delaney Clause at the time of this communication. As to the alleged OSHA violations, the defendant met its prima facie burden by submitting a January 21, 2010, determination by the Regional Administrator of OSHA, finding that there was no reasonable cause to believe that the defendant had violated OSHA. In opposition, the plaintiff failed to raise a triable issue of fact (see Bordell v. General Elec. Co., 88 N.Y.2d at 871, 644 N.Y.S.2d 912, 667 N.E.2d 922; Khan v. State Univ. of N.Y. Health Science Ctr. at Brooklyn, 288 A.D.2d 350, 351, 734 N.Y.S.2d 92). The Supreme Court providently exercised its discretion in finding that expert testimony was necessary to establish the levels of formaldehyde the aroma encapsulate was capable of releasing, and that the plaintiff was not qualified to render an opinion thereon (see Reidy v. Raman, 85 A.D.3d 892, 893, 924 N.Y.S.2d 581; Guzzi v. City of New York, 84 A.D.3d 871, 873, 923 N.Y.S.2d 170; Monsegur v. Modern Comfort Tech., 289 A.D.2d 307, 734 N.Y.S.2d 866). Accordingly, the Supreme Court properly discounted the exposure calculations made by the plaintiff, and properly granted those branches of the defendant’s motion which were for summary judgment dismissing the third and fourth causes of action, which alleged violations of Labor Law § 740 by wrongful discharge of the plaintiff from employment, and refusing to consider the plaintiff for a “continuing position,” respectively.
The court also held that summary judgment was proper on plaintiff’s negligence claims, due to an absence of damages: “[D]efendant established its prima facie entitlement to judgment as a matter of law dismissing the negligence causes of action by submitting a transcript of the plaintiff’s deposition testimony in which he conceded that he had not been diagnosed with or treated for any effects of formaldehyde exposure”, and “[i]n opposition, the plaintiff failed to raise a triable issue of fact as to whether there was a ‘rational basis’ for his fear of developing a disease.”