“Healthcare Whistleblowing” Claim Dismissed; Abandonment of Post Was Reason for Termination

In Novak v St. Luke’s-Roosevelt Hosp. Ctr., Inc., 2016 NY Slip Op 00762 (App. Div. 1st Dept. Feb. 4, 2016), the court affirmed the dismissal of plaintiff’s “healthcare whistleblower” claim under New York Labor Law § 741.

From the decision:

Plaintiff alleges that defendants had retaliated against her for lodging a complaint with defendant supervisors regarding the treatment of a patient. After plaintiff abandoned her post while on duty in the emergency room of defendant hospital, plaintiff’s employment was terminated. After a grievance was filed by her union, an independent arbitrator, following an evidentiary hearing, determined that plaintiff’s abandonment of her post violated hospital protocol and constituted misconduct warranting a six-month suspension without pay. In this action, plaintiff alleges that defendants’ reaction to her abandonment of her post was merely a pretext to retaliate against her for complaining about the patient’s treatment, and that defendants’ alleged retaliation violated Labor Law § 741.

Plaintiff’s abandonment of her post violated the hospital’s policy and was a legitimate basis to discipline her. The arbitrator’s finding of misconduct warranting discipline was based on substantial evidence, and plaintiff has not challenged the arbitrator’s determination as biased or otherwise improper. Accordingly, that determination is “highly probative” evidence that defendants did not retaliate against her, and plaintiff has failed to proffer sufficient evidence to raise a triable issue of fact as to a causal link between her complaint to her supervisors and defendants’ discipline.

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