In Ada Damla Demir, Plaintiff-Respondent, v. Sandoz Inc., et al., Defendants-Appellants., 2017 WL 5328744 (App. Div. 1st Dept. Nov. 14, 2017), the court held that plaintiff sufficiently alleged violations of New York’s Whistleblower Law (Labor Law 740) and employment discrimination claim (under the New York State Human Rights Law).
Initially, the court held that plaintiff’s Whistleblower Law claim was timely – even though it was filed more than one year after her termination – upon application of the “relation back” doctrine, codified in CPLR 203(f).
The court explained:
Although that claim was not asserted until the Second Amended Complaint, filed on October 19, 2015, more than one year after her termination on February 4, 2014, the original complaint, filed on January 31, 2015, alleged that on February 3, 2014, plaintiff reported to the defendants’ Business Practices Office defendants’ improper practices regarding its procurement of chemicals to manufacture its highest grossing drug, and that those practices did not comply with FDA regulations. It further alleged that she was terminated the next day in retaliation for that conduct. This sufficed to give defendants notice of the transactions or occurrences to be proved in asserting the Section 740 claim in the later Second Amended Complaint
As to the merits of plaintiff’s Whistleblower Law claim, the court held:
[L]iberally construing the complaint, presuming its factual allegations to be true, and giving the allegations every favorable inference, as required on a CPLR 3211 motion to dismiss, plaintiff adequately pleaded a Labor Law § 740 violation against defendants in alleging that its manufacturer and procurement of chemical ingredients for defendants’ highest grossing product was not compliant with FDA regulatory requirements governing the drug’s safety and efficacy, and she need not plead an actual violation of laws or regulations.
Turning to plaintiff’s discrimination claims, the court held that the Whistleblower Law’s “election of remedies” provision, Labor Law 740(7), did not preclude plaintiff’s employment discrimination claim under the NYS Human Rights Law “because, in alleging discrimination on account of plaintiff’s gender, national origin, and religion, plaintiff does not seek the same rights and remedies as she does in connection with her whistleblowing claim, notwithstanding that both claims allege that she was wrongfully terminated.”
As to the merits of plaintiff’s discrimination claim, the court held:
We further conclude that plaintiff alleged sufficient facts to show that she was subjected to adverse employment actions under circumstances giving rise to an inference of discrimination (Forrest v. Jewish Guild for the Blind, 3 NY3d 295, 305 [2004] ), including that she was passed over for a promotion for no legitimate reason, that she was “demoted in title,” and eventually terminated on February 4, 2014, and that she and other women, including other Muslim women, had been subjected to abusive and derogatory remarks and questions about her accent and her religious practices in a male-dominated environment.
Finally, it held that “these and additional allegations regarding the other women, including Muslim women, who were denied promotions or subjected to other adverse treatment, and her resulting severe anxiety disorder requiring medication sufficed to allege a hostile work environment.”