Home » Blog » Employment Discrimination » Whistleblower (NY Labor Law § 741) Retaliation Claim Survives Summary Judgment; OPMC Rulings Did Not Operate as Collateral Estoppel

Whistleblower (NY Labor Law § 741) Retaliation Claim Survives Summary Judgment; OPMC Rulings Did Not Operate as Collateral Estoppel

by mjpospis on September 12, 2017

in Employment Discrimination, Employment Law, Retaliation, Whistleblower Law

In Mehulic v. New York Downtown Hosp., 2017 NY Slip Op 06416 (App. Div. 1st Dept. Sept. 12, 2017), the court reversed the trial court’s Order granting defendant summary judgment on plaintiff’s retaliation claim under Labor Law § 741 on the ground of collateral estoppel.

From the decision:

However, the motion court erred in finding that plaintiff’s retaliation claim under Labor Law § 741 is completely barred by collateral estoppel. The issue of whether defendant hospital terminated plaintiff doctor because she reported inadequate medical care to her supervisors, and later, the Department of Health was not at issue in the prior administrative proceedings and related article 78 proceeding, and was not necessarily decided in the prior proceedings (Buechel v Bain, 97 NY2d 295, 303-304 [2001], cert denied 535 US 1096 [2002]; Gramatan Home Invs. Corp. v Lopez, 46 NY2d 481, 485 [1979]). The earlier proceedings were initiated by the Department of Health’s Office of Professional Medical Conduct (OPMC) to determine whether plaintiff, then a not yet licensed second-year resident, should be able to pursue a medical license in New York, and under what conditions (see Stevenson v Goomar, 148 AD2d 217, 221 [3d Dept 1989], lv dismissed 74 NY2d 945 [1989]). The prior rulings determined that plaintiff had engaged in professional incompetence on three occasions, and that defendant did not fabricate the allegations, but there was no express or implied ruling that defendant terminated her employment on the basis of that incompetence, or whether in terminating her, defendant had impermissibly retaliated against her for whistleblowing (see Matter of Mehulic v State Bd. for Professional Med. Conduct, 107 AD3d 1066 [3d Dept 2013], appeal dismissed 22 NY3d 911 [2013]; cf. Humphries v City Univ. of N.Y., 146 AD3d 427 [1st Dept 2017] [retaliation claim was barred by collateral estoppel where, among other things, the issue was decided in prior proceeding], and Matter of Khan v New York City Health & Hosps. Corp., 144 AD3d 600, 602 [1st Dept 2016], lv denied 29 NY3d 905 [2017] [same]). Thus, while plaintiff is precluded from relitigating the three instances of incompetence found in the prior proceedings, collateral estoppel does not otherwise bar litigation of plaintiff’s retaliation claim.

The court also held that plaintiff raised triable issues of fact in response to defendant’s prima facie showing that it terminated plaintiff on grounds other than her exercise of any rights under Labor Law § 741.

Categories: Employment Discrimination, Employment Law, Retaliation, Whistleblower Law

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