Plaintiff Fired After Complaining About Drunk Dentist Survives Summary Judgment on Labor Law § 741 Whistleblower Claim

Nazi dentists are terrifying. Drunk dentists may be a close second.

New York’s whistleblower statutes – codified at Labor Law §§ 740 and 741 – are notoriously (and, from a plaintiffs’ lawyer’s perspective, frustratingly) narrow. It is, therefore, refreshing to see a plaintiff prevail, if “only” on a motion for summary judgment. This victory – arguably the “holy grail” of pretrial litigation practice – entitles the plaintiff to have their case heard at trial.

In Blashka v. New York Hotel Trades Council & Hotel Assn. of NYC Health Ctr., decided March 12, 2015, the Appellate Division, First Department reversed the lower court’s decision granting summary judgment to the defendant on plaintiff’s whistleblower claim pursuant to Labor Law § 741.

That statute provides, in pertinent part, that

[N]o employer shall take retaliatory action against any employee because the employee does any of the following:

(a) discloses or threatens to disclose to a supervisor, or to a public body an activity, policy or practice of the employer or agent that the employee, in good faith, reasonably believes constitutes improper quality of patient care; or

(b) objects to, or refuses to participate in any activity, policy or practice of the employer or agent that the employee, in good faith, reasonably believes constitutes improper quality of patient care.

In Blashka, plaintiff alleged that he was terminated in retaliation for complaining about patient care practices, including defendant’s “failure to terminate a dentist who had an alcohol addiction that was not successfully treated.”

In reversing summary judgment for defendant and reinstating plaintiff’s complaint, the court held:

The motion court erred in finding that plaintiff failed to identify any law or rule reasonably believed to have been violated by the Health Center as required for him to prove his Labor Law § 741 claim. Plaintiff’s affidavit in opposition to the motion, points out that permitting a dentist to practice dentistry while intoxicated violates Education Law §§ 6509(3)-(4) and Board of Regents Rule 29.1 (8 NYCRR § 29.1).

Plaintiff’s reports, in May and June 2009, to his superiors of his suspicions that this dentist, whom he supervised, was drinking while practicing dentistry were sufficiently close in time to support an inference of causation between his disclosures and his termination in July 2009. …

In response to the Health Center’s asserted defense that it terminated plaintiff because of prior warnings and his mismanagement of his supervisee’s alleged drinking, plaintiff raised issues of fact as to pretext by pointing to record evidence that he reported his supervisee’s resumption of drinking to his superior as early as April 2009, but the superior told plaintiff only to monitor the dentist and keep a log. Accordingly, there are issues of fact as to whether plaintiff was terminated based on his disclosures that his supervisee was drinking alcohol while practicing dentistry.

This case illustrates that, with the right facts, a New York whistleblower claim can survive summary judgment.

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