Assertion of Whistleblower Claims Does Not Result in Waiver of Disability Discrimination Claims

In Barker v. Peconic Landing at Southhold, Inc., 2012 WL 3096036 (E.D.N.Y. July 30, 2012), plaintiff alleged disability discrimination and a violation of New York’s whistleblower statute, Labor Law Section 740.

Plaintiff’s latter claim was that he was fired in retaliation for reporting “a growing drug problem among fellow nurses and nurse’s assistants”, thefts, and “unreported narcotic errors within the nurses notes”.  Section 740 requires an employee to “plead and prove that the employer engaged in an activity, policy, or practice that constituted an actual violation of law, rule, or regulation.”

First, the court rejected defendant’s argument that, by bringing a section 740 claim, plaintiff waived his disability discrimination claims.  Section 740(7) states that the institution of any action under Section 740 “shall be deemed a waiver” of any rights and remedies otherwise available pursuant to any such “contract, collective bargaining agreement, law, rule or regulation or under the common law.”

The court adopted a narrow view of this provision, adopting the Southern District’s approach in Collette v. St. Luke’s Roosevelt Hosp., 132 F.Supp.2d 256 (S.D.N.Y.2001):

The complaint here alleges a whistleblower claim pursuant to Section 740, as well as New York State and Federal discrimination claims on account of Plaintiff’s alleged disabilities. As this court has adopted the Collette court’s approach, the issue is whether Plaintiff’s disability discrimination claims protect against the same wrongs that Section 740 prohibits. The court holds that they do not. Specifically, the Human Rights Law seeks to “encourage programs designed to insure that every individual shall have an equal opportunity to participate fully in the economic, cultural and intellectual life of the state; to encourage and promote the development and execution by all persons within the state of such state programs,” and to “eliminate and prevent discrimination” in a variety of activities, including employment. … Similarly, the ADA is “designed to combat discrimination against persons with disabilities in every area of public life.” … The whistleblower statute, on the other hand, is aimed at protecting the rights of employees who report violations of law that present a danger to public health or safety. Because the anti-discrimination statutes seek to protect against wrongs completely separate from those sought to be protected by Section 740, there is no waiver of any such claims.
Second, the court found that plaintiff’s complaint stated a claim under Section 740:  “Plaintiff’s allegations regarding drug use and theft by Peconic’s staff are sufficient, at this stage of the proceedings, to state a claim that Plaintiff reported conduct that was in actual violation of law, which presented a substantial threat to public health or safety.”  The court was careful to note, however, that “Plaintiff’s claims may not be borne out by facts revealed after discovery.”
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