NY Appellate Division: NY whistleblower election-of-remedies provision does not bar Section 1983 claim

Frank v. State of New York et al., 2011 NY Slip Op 04588 (App. Div. 3d Dept. June 2, 2011):

Plaintiff, a state employee, asserted claims under the public-sector whistleblower law (Civil Service Law § 75-b) and 42 U.S.C. § 1983 after he was demoted, then terminated, following his complaints of “improper governmental practices” that allegedly resulted in the death of a patient.

In Frank, an Appellate Division, Third Dept. panel held that the NY whistleblower statute’s election-of-remedies provision, Labor Law 740(7) – which is incorporated into actions against public employers under Civil Service Law § 75-b(3)(c) – “does not extend to exclude a potential 42 U.S.C. § 1983 cause of action”.

Labor Law § 740(7) provides that “the institution of an action in accordance with this section shall be deemed a waiver of the rights and remedies available under any other contract, collective bargaining agreement, law, rule or regulation or under the common law”.  The statute also defines the phrase “law, rule or regulation” to “include[] any duly enacted statute or ordinance or any rule or regulation promulgated pursuant to any federal, state or local statute or ordinance”.  Section 1983, a federal statute, thus appeared “on cursory analysis” to apply.

However, “upon closer scrutiny”, the court discerned “interpretative problems with casting the exception found in Labor Law § 740 (7) to cover a 42 U.S.C. § 1983 action.”  Initially, the court cited two New York federal court decisions that found that § 740(7) “should not be construed to encompass a cause of action springing from an asserted violation of the federal constitution”.   The court cited another New York federal court decision that “observed potential problems with a broad interpretation of [740(7)] and, accordingly, adopted a narrow construction of the statute”.

The court reasoned as follows:

“Here, the statute applicable to public employers [Civil Service Law § 75-b(3)(c)] incorporates an exception contained in a statute addressing private employers.  Private employers do not typically engage in state action and thus are not susceptible to 42 U.S.C. § 1983 claims.  Section 1983 is a vehicle for enforcing constitutional rights, which presupposes state action. … Hence, it follows that a statutory exception for potential actions against a private employer would not include section 1983, and a statute applicable to public employers that borrows the exception for private employers with no expansion or clarification should not be extended to encompass a section 1983 action absent clear legislative guidance. The issue, at a minimum, is ambiguous, and extinguishing a constitutionally-based right should rest on legislation that is free from ambiguity”.

The court also dismissed plaintiffs’ public-sector whistleblower claims against the individual defendants, in light of the fact that plaintiff sued the governmental defendant directly.  The court cited precedents, including its own, for the proposition that Civil Service Law § 75-b “does not apply separately to individual public employees where the pertinent governmental entity is also sued”.

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