Verdicts

No Proof of Retaliation Where Good Cause Found

The court granted a government employer's motion to dismiss a whistleblower's claim that her First Amendment right to freedom of speech was infringed by the bringing of a retaliatory administrative employment action ' because the hearing officer in that proceeding had found there was probable cause at the time the action was initiated to suspect the plaintiff was not fit to perform a nurse's duties. Burhans v. County of Putnam, Slip Copy, 2011 WL 1157693, S.D.N.Y., March 25, 2011 (NO. 06 CIV. 8325 DLC).

The plaintiff worked as a public health nurse in the New York Department of Health's Nursing Division. On various occasions from 2003 to 2006, she told the defendants, representatives of the New York State Department of Health (DOH), and the Medicaid Fraud Unit of the New York State Office of the Attorney General, that the DOH was not providing patients with competent nursing services and was not maintaining proper records. The DOH conducted an audit of the nursing operations and discovered some deficiencies.

Allegedly, in retaliation for her complaints, the DOH took several actions against the plaintiff, including transferring her to a different position and stopping her from working overtime. In June and July 2005, DOH employees gave her verbal and written warnings. In December 2005, the DOH initiated proceedings against the plaintiff pursuant to NYCSL ' 72(5), which permits the agency to place an employee on leave if his or her continued employment may put others in danger or cause a disruption in the work environment. They claimed that the plaintiff had made statements to colleagues concerning mistakes she had made with patients, and near accidents she had had while driving her employer-provided car.

While she was on involuntary leave, the plaintiff underwent an employer-ordered psychiatric evaluation. The evaluator found that she was unfit for work. A second psychiatric evaluator later recommended that she be permitted to return to work.

On April 21, 2008, the hearing officer who conducted the ' 72 hearing found that there was probable cause to believe that, as of Dec. 8, 2005, the plaintiff was unable to perform the essential duties of a registered nurse. The hearing officer concluded, however, that by the time of the hearing in April 2008, the plaintiff was fit to return to work and should be permitted to do so. A county official rejected the reinstatement recommendation but authorized another psychiatric evaluation. After she declined to undergo this third psychiatric evaluation, the plaintiff's employment was permanently terminated.

The plaintiff brought several claims against the DOH and some of its employees, one of which asserted that the defendants violated her First Amendment right to free speech when they retaliated against her by initiating and prosecuting the ' 72(5) proceeding.

The court noted that public employees bringing First Amendment retaliation claims must prove that: “(1) they engaged in constitutionally protected speech because they spoke as citizens on a matter of public concern; (2) they suffered an adverse employment action; and (3) the speech was a motivating factor in the adverse employment decision.” Ruotolo v. City of New York, 514 F.3d 184, 188 (2d Cir. 2008) (citation omitted). Here, however, an independent hearing officer had determined that there was probable cause, as of Dec. 8, 2005, to believe that the plaintiff was unfit to perform her job. The plaintiff failed to challenge that determination, which she could have done through procedures available to her. As the hearing officer had determined that there were adequate reasons (apart from retaliation) why the plaintiff's work performance might warrant removing her from her job in December 2005, she could not here show the necessary causal connection between her protected speech and the defendants' resort to the ' 72(5) proceeding. Thus, the court dismissed the First Amendment claim that the
' 72(5) proceedings were retaliatory.

State Liable for Attack Two Years After Patient's Escape

A panel of New York's Appellate Division, First Department, reversing a lower court decision, has held that a state psychiatric hospital is responsible for a violent attack perpetrated by a patient who had escaped from the hospital two years earlier. Williams v. State of New York, 3468 94695, NYLJ 1202492827427, at *1 (App. Div. 1st, Decided May 3, 2011).

The patient, who had a long violent past that included multiple unprovoked attacks on women, snuck out of the Manhattan Psychiatric Center, a New York State facility, in July 1993. His departure was characterized by the hospital as an “absence without leave,” a designation that, unlike an “escape,” did not require police notification. In July 1995, the former patient threw a glass bottle at the plaintiff as she waited to cross a street. She was so badly injured that she required two surgeries, with medical bills totaling $27,000. In addition, she was no longer able to pursue her career as a dancer. The attacker was found guilty of first-degree assault in 2000 and sentenced to four to eight years in prison.

The victim and her husband filed suit against the state in 1996, seeking $15 million in damages. The trial court held the state could not be held liable. A divided panel of the Appellate Division reversed, pointing to the case of Alvarez v. Telemechanics, 307 AD2d 304, in which it was held that “a mere lapse of time” will not prevent a party from being deemed the cause of harm to another. Here, stated the court, there was “nothing in the record to support the possibility that an intervening event was the proximate cause. The bottom line is, had defendant not allowed [the patient] to abscond, plaintiff would not have been injured.” One of the dissenters noted, disparagingly, that the majority's ruling means that “no period of time, be it 5, 10, or 15 years, would suffice to attenuate the State's negligence from a criminal act committed by” a psychiatric hospital patient.

No Proof of Retaliation Where Good Cause Found

The court granted a government employer's motion to dismiss a whistleblower's claim that her First Amendment right to freedom of speech was infringed by the bringing of a retaliatory administrative employment action ' because the hearing officer in that proceeding had found there was probable cause at the time the action was initiated to suspect the plaintiff was not fit to perform a nurse's duties. Burhans v. County of Putnam, Slip Copy, 2011 WL 1157693, S.D.N.Y., March 25, 2011 (NO. 06 CIV. 8325 DLC).

The plaintiff worked as a public health nurse in the New York Department of Health's Nursing Division. On various occasions from 2003 to 2006, she told the defendants, representatives of the New York State Department of Health (DOH), and the Medicaid Fraud Unit of the New York State Office of the Attorney General, that the DOH was not providing patients with competent nursing services and was not maintaining proper records. The DOH conducted an audit of the nursing operations and discovered some deficiencies.

Allegedly, in retaliation for her complaints, the DOH took several actions against the plaintiff, including transferring her to a different position and stopping her from working overtime. In June and July 2005, DOH employees gave her verbal and written warnings. In December 2005, the DOH initiated proceedings against the plaintiff pursuant to NYCSL ' 72(5), which permits the agency to place an employee on leave if his or her continued employment may put others in danger or cause a disruption in the work environment. They claimed that the plaintiff had made statements to colleagues concerning mistakes she had made with patients, and near accidents she had had while driving her employer-provided car.

While she was on involuntary leave, the plaintiff underwent an employer-ordered psychiatric evaluation. The evaluator found that she was unfit for work. A second psychiatric evaluator later recommended that she be permitted to return to work.

On April 21, 2008, the hearing officer who conducted the ' 72 hearing found that there was probable cause to believe that, as of Dec. 8, 2005, the plaintiff was unable to perform the essential duties of a registered nurse. The hearing officer concluded, however, that by the time of the hearing in April 2008, the plaintiff was fit to return to work and should be permitted to do so. A county official rejected the reinstatement recommendation but authorized another psychiatric evaluation. After she declined to undergo this third psychiatric evaluation, the plaintiff's employment was permanently terminated.

The plaintiff brought several claims against the DOH and some of its employees, one of which asserted that the defendants violated her First Amendment right to free speech when they retaliated against her by initiating and prosecuting the ' 72(5) proceeding.

The court noted that public employees bringing First Amendment retaliation claims must prove that: “(1) they engaged in constitutionally protected speech because they spoke as citizens on a matter of public concern; (2) they suffered an adverse employment action; and (3) the speech was a motivating factor in the adverse employment decision.” Ruotolo v. City of New York , 514 F.3d 184, 188 (2d Cir. 2008) (citation omitted). Here, however, an independent hearing officer had determined that there was probable cause, as of Dec. 8, 2005, to believe that the plaintiff was unfit to perform her job. The plaintiff failed to challenge that determination, which she could have done through procedures available to her. As the hearing officer had determined that there were adequate reasons (apart from retaliation) why the plaintiff's work performance might warrant removing her from her job in December 2005, she could not here show the necessary causal connection between her protected speech and the defendants' resort to the ' 72(5) proceeding. Thus, the court dismissed the First Amendment claim that the
' 72(5) proceedings were retaliatory.

State Liable for Attack Two Years After Patient's Escape

A panel of New York's Appellate Division, First Department, reversing a lower court decision, has held that a state psychiatric hospital is responsible for a violent attack perpetrated by a patient who had escaped from the hospital two years earlier. Williams v. State of New York, 3468 94695, NYLJ 1202492827427, at *1 (App. Div. 1st, Decided May 3, 2011).

The patient, who had a long violent past that included multiple unprovoked attacks on women, snuck out of the Manhattan Psychiatric Center, a New York State facility, in July 1993. His departure was characterized by the hospital as an “absence without leave,” a designation that, unlike an “escape,” did not require police notification. In July 1995, the former patient threw a glass bottle at the plaintiff as she waited to cross a street. She was so badly injured that she required two surgeries, with medical bills totaling $27,000. In addition, she was no longer able to pursue her career as a dancer. The attacker was found guilty of first-degree assault in 2000 and sentenced to four to eight years in prison.

The victim and her husband filed suit against the state in 1996, seeking $15 million in damages. The trial court held the state could not be held liable. A divided panel of the Appellate Division reversed, pointing to the case of Alvarez v. Telemechanics , 307 AD2d 304, in which it was held that “a mere lapse of time” will not prevent a party from being deemed the cause of harm to another. Here, stated the court, there was “nothing in the record to support the possibility that an intervening event was the proximate cause. The bottom line is, had defendant not allowed [the patient] to abscond, plaintiff would not have been injured.” One of the dissenters noted, disparagingly, that the majority's ruling means that “no period of time, be it 5, 10, or 15 years, would suffice to attenuate the State's negligence from a criminal act committed by” a psychiatric hospital patient.