New York: The Retaliation Capital of the World - 'Woefully' Lacking Whistleblower Protections

Suit Alleging Teacher Fired for Reporting Abuse May Proceed
The New York Law Journal by Brendan Pierson  -  April 13, 2012

A former nurse at a prestigious Orthodox Jewish prep school in Manhattan who alleges that she was fired in retaliation for reporting to authorities the abuse of a student by his father is protected by the state's whistleblower statute and can proceed with her lawsuit against the school, a divided Appellate Division, First Department, panel has ruled.  The 3-2 opinion in Villarin v. Ramaz School, 108417/09, handed down April 12, held that the former nurse, Joyce Villarin, has a claim for retaliatory termination because the school's alleged conduct could threaten public health and safety. The majority opinion was written by Justice Dianne Renwick, joined by Justices Angela Mazzarelli and James Catterson.  Villarin began working at the Upper East Side's Ramaz School in 2006, according to the decision. In 2007, a student came to her with a "prominent injury" on his cheek and told her that he had been struck by his father. Villarin called the boy's father, who admitted that he had hit his son, said he had been encouraged to do so by the boy's mother and that he was not remorseful. Villarin then told a school administrator that, pursuant to New York's Social Services Law, she would have to report the incident to the Central Child Abuse and Maltreatment Register. The administrator, however, encouraged her not to report the incident. In April 2008, Villarin was told that she would be terminated because she was "not a team player."  Villarin sued the school in 2009 in Manhattan Supreme Court. Justice Milton Tingling denied the school's motion to dismiss in 2010, and the school appealed.  In affirming Justice Tingling's decision, the majority of the First Department panel noted that, while employment in New York is generally at will in the absence of an agreement to the contrary, New York's employee whistleblower statute forbids employers from firing employees for reporting a violation of a law or rule by an employer that presents a "substantial and specific danger to the public health and safety."  The Social Services Law, which requires school nurses to report child abuse by parents, also says that an employer "shall not take any retaliatory personnel action…against an employee because such employee believes that he or she has reasonable cause to suspect that a child is an abused or maltreated child and that employee therefore makes a report in accordance with this title."  Renwick wrote that the relevant statutes clearly protect Villarin.

"It cannot be seriously disputed that this statutory scheme implicates public health and safety concerns," she wrote. "Indeed, a review of the relevant legislative history reveals that the New York Legislature's overriding concern was for the protection of the abused children, with the aim of preventing further harm to children."  She dismissed the school's argument that there was no threat to public health and safety because only one child was involved.  The whistleblower statute does not require a "large-scale threat, or multiple potential or actual victims," and in fact, "a threat to any member of the public might well be deemed sufficient," the judge wrote, quoting Bompane v. Enzolabs, 160 Misc. 2d 315, 318-319 (1994).  Renwick also said that "ignoring a duty to report child abuse constitutes an inherently dangerous practice."  Furthermore, she said, dismissing the case would put nurses like Villarin in a bind, making them liable under the Social Services Law if they fail to report abuse, but subject to termination without whistleblower protection if they follow the law.  "This, of course, would be contrary to the legislative policy to encourage professionals of certain fields dealing with children to freely report suggested child mistreatment," she wrote.  Justice Leland DeGrasse dissented, joined by Justice David Friedman. DeGrasse wrote that an incident involving a single child was not enough to support Villarin's case.  "Here, plaintiff has not alleged any facts from which it can be inferred that she objected to or refused to participate in any practice that implicated a substantial and specific danger to the public health or safety," DeGrasse wrote.  He said that "the subject single instance of suspected parental maltreatment of a child is not indicative of a schoolwide problem of child abuse or a schoolwide practice or policy of failing to report such abuse."  DeGrasse was also unpersuaded that dismissing the case would set a bad precedent for school nurses.  "Moreover, the majority's position that 'defendant's act of firing plaintiff could potentially discourage other nurses from reporting any suspected child abuse or maltreatment' (emphasis added) does not speak to a specific danger to public health or safety," DeGrasse wrote.  "We were delighted by the decision and hope it demonstrates a meaningful expansion of the woefully narrow whistleblower protections afforded under New York law," Patrick Boyd of The Boyd Law Group, who represented Villarin on appeal, said in an e-mail.  Andrew Ceresney of Debevoise & Plimpton, counsel for the school, declined to comment.  The case was argued on Nov. 15, 2011.  Brendan Pierson can be contacted at bpierson@alm.com.