In Fough v. Aug. Aichhorn Ctr. for Adolescent Residential Care, Inc., No. 18294/13, 2016 WL 2338423 (N.Y. App. Div. 2nd Dept. May 4, 2016), the court held that the defendant’s motion to dismiss plaintiff’s “whistleblower retaliation” lawsuit under CPLR 3211(a)(7) should have been denied – i.e., that plaintiff sufficiently alleged this claim.
In sum, plaintiff (a registered nurse) alleged that she was retaliated against for pointing out that her soon-to-be supervisor was not a registered nurse, and therefore unqualified to supervise her.
Labor Law § 740 creates a cause of action in favor of an employee who has suffered a retaliatory personnel action” as a consequence of, inter alia, disclos[ing], or threaten[ing] to disclose to a supervisor or to a public body an activity, policy or practice of the employer that is in violation of law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety,” or as a consequence of object[ing] to, or refus[ing] to participate in any such activity, policy or practice in violation of a law, rule or regulation.
Applying the law to the allegations in plaintiff’s complaint, the court held:
Here, evaluating the complaint under that standard, we find that it stated a cause of action under Labor Law § 740. The complaint alleged, among other things, that the plaintiff was offered a promotion at AAC’s Brooklyn facility. The complaint also alleged that the terms of the promotion would have placed the plaintiff under the supervision of the defendant Tonya Parker, who was not among the class of persons authorized by law or regulation to supervise a registered nurse in clinical activities. The complaint also alleged that the plaintiff pointed out that Parker was not authorized to supervise her, but the terms of the promotion were not changed. The complaint further alleged that after the plaintiff declined to accept the promotion, she was discharged from her position as Head of Nursing, and another nurse was given the position that plaintiff had turned down, under Parker’s supervision. The complaint sufficiently alleged activities covered by Labor Law § 740, including that supervision of a nurse in clinical activities by an unauthorized person would, under the circumstances alleged, cause a substantial and specific danger to public health.
It also held that plaintiff should be permitted to add a cause of action alleging a violation of Labor Law § 741 (a more specific whistleblower statute that applies in the health care field).