885 F. Supp. 2d 564
E.D.N.Y2012Background
- Plaintiff Chris J. Barker alleges disability discrimination and retaliation under the ADA and NY Executive Law § 290, asserting a 70% hearing loss, tinnitus, and a left rotator cuff injury.
- Defendants are Peconic Landing at Southold, Inc. and four Peconic employees (Garrett, Lockbridge, Cole, Wilsey); the four are sued under state law only.
- Barker’s employment began in 2008 as a Supervising Registered Nurse on the night shift; the Individual Defendants held Health Center Administrator, Director of Nursing, Nursing Manager, and HR Director roles.
- Plaintiff describes multiple incidents: (1) Sept. 2010 incident outside the facility leading to a Violence in the Workplace warning (alleged due to disability); (2) alleged discriminatory treatment via separate personnel file created circa Sept. 2010; (3) Jan. 2011 Blizzard-related reprimand for speaking loudly; (4) March 2011 directive to lift a 180-pound man despite rotator cuff injury, with warnings/termination threats; (5) December 2010 complaints to management about drug problems, thefts, and unreported narcotic errors allegedly covered up by Lockbridge; (6) retaliation in Feb./Mar. 2011 including disciplinary meeting with fabricated accusations and ultimately termination.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Barker’s Section 740 whistleblower claim is waived by filing. | Waiver should not bar discrimination claims since they protect different wrongs. | Waiver under § 740(7) may bar other rights and remedies tied to the same misconduct. | Waiver applies narrowly; discrimination claims are not waived. |
| Whether Barker states a prima facie Section 740 claim. | Alleged drug use and theft by staff violated the law and posed a danger to public health. | Plaintiff must show an actual legal violation and a substantial public danger; mere misconduct is insufficient. | Court declines to dismiss; discovery may reveal whether a violation occurred and whether it endangered the public. |
| Whether Barker’s disability discrimination claims are plausibly alleged and survive Rule 12(b)(6). | Discrimination based on disability and failure to address discriminatory actions are alleged. | Provisions require actual legal violations or injuries; pleadings may be insufficient after discovery. | Plaintiff’s discrimination claims survive at this stage; dismissal denied. |
Key Cases Cited
- Collette v. St. Luke's Roosevelt Hosp., 132 F. Supp. 2d 256 (S.D.N.Y. 2001) (waiver limited to rights protecting against the same wrong; discrimination claims not waived)
- Reddington v. Staten Island University Hospital, 373 F. Supp. 2d 177 (E.D.N.Y. 2005) (waiver scope analyzed; not all claims barred)
- Bordell v. General Elec. Co., 88 N.Y.2d 869 (N.Y. 1996) (Section 740 requires actual violation of law; mere belief not enough)
- Khan v. State University of New York Health Science Ctr. At Brooklyn, 288 A.D.2d 350 (2d Dep’t. 2001) (strict construction of § 740; must plead actual legal violation)
- Tomo v. Episcopal Health Services, Inc., 85 A.D.3d 766 (2d Dep’t. 2011) (proper pleading of dangerous conduct required)
- Gardner v. Continuing Development Servs., 292 A.D.2d 838 (4th Dep’t. 2002) (retaliation claims not sufficient to establish public danger under § 740)
- Green v. Saratoga A.R.C., 233 A.D.2d 821 (3d Dep’t. 1996) (drug use allegations did not show public danger)
- Peace v. KRNH, Inc., 12 A.D.3d 914 (3d Dep’t. 2004) (requires certain quantum of dangerous activity)
- Berde v. North Shore-Long Island Jewish Health System, Inc., 50 A.D.3d 834 (2d Dep’t. 2008) (fact-specific; issues of fact preclude dismissal)