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NY Appeals Court Protects Whistleblower Nurse

published April 13, 2012

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When, in 2007, Joyce Villarin notified a state agency of an elementary school student at the Ramaz School had a facial injury allegedly caused by his father, the system started to work against the school nurse. Officials at the Orthodox Jewish school warned her not to report the incident, and subsequently she was fired to cover up child abuse. Villarin filed a lawsuit against the school.

In 2010, Justice Milton Tingling of the Manhattan Supreme Court allowed the motion of the school claiming that Villarin's claim of wrongful termination was not tenable. However, in the same order, the court ruled that Villarin's claim of retaliatory action by the school had merit and survives despite opposition from the school.

The case came up for appeal and a divided New York State appeals court ruled in favor of Villarin on Thursday.
The court found that Villarin was protected by the state's whistleblower laws when she reported the child abuse to government authorities.

The court held that Section 740 of the state's Labor Law prevents a private employer from taking “any retaliatory personnel action” against any employee who objects to a policy that violates law and creates “substantial and specific danger to public health and safety.”

The court wrote, “We find that plaintiff's claim falls within both the letter and the spirit of the private-employee whistleblower statute.”

The majority differed with the dissenting judges Justice Leland DeGrasse and Justice David Friedman who held that a ‘single instance' of failing to misreport was insufficient to prove ‘policy.'

Writing for the majority, Justice Renwick commented that accepting the arguments of the dissenting judges would put employees “on the horns of a dilemma.” In the instant case of Villarin, “If she remains silent, she would subject herself to civil liability for failing to report it under 413 … If she performs her duties under 413, she would be subject to termination by her employer without any whistleblower protection.”

As such, the appeals court found Villarin's claim of “retaliatory action” allowed by the Supreme Court to be valid and protected by whistleblower's law.

The case is Villarin v. Rabbi Haskel Lookstein School, Appellate Division, First Department, No. 6220.