ALBANY – A judge has declined to dismiss a First Amendment violation claim by a state worker who said she was the victim of on-the-job retaliation after a newspaper quoted her in a story about whistleblowers at her agency.
Northern District Judge Norman Mordue (See Profile) ruled that Jane Taylor has properly demonstrated at this stage of her litigation that the way she was treated by the state Office of People With Developmental Disabilities (OPWDD) may have infringed on her constitutional free speech rights.
Taylor contends that she was within her First Amendment rights to report on the suspected abuse of the agency’s clients by other employees, and to speak to The New York Times nearly three years ago for a story that reported agency ombudsmen were sharing the identities of employees who supposedly made confidential complaints to their supervisors.
Taylor is a residential habitation specialist for the developmental disability agency in the Albany region. The agency serves people with disabilities including cerebral palsy, Downs’ Syndrome and autism.
Mordue wrote in Taylor v. New York State Office for People With Developmental Disabilities, 1:13-cv-740, that the plaintiff made the requisite showing for First Amendment retaliation under 42 U.S.C. §1983, including that her expressions served a “broader public purpose” other than redressing personal grievances, and that Taylor had suffered adverse employment actions as a result.
Mordue noted that Taylor received three notices of discipline between 2004 and 2013, has had her whereabouts and job performance closely monitored in recent years by a supervisor in ways that other employees did not, and was turned down for another state job for which she was qualified without being offered an interview.
“These conclusory allegations are sufficient at this pleading stage to support her claim for an adverse employment action,” Mordue wrote in his March 24 ruling. “As such, the court will deny defendants’ motion to dismiss plaintiff’s first cause of action for retaliation pursuant to the First Amendment.”
Mordue rejected the state’s argument that the agency could not be guilty of disciplining Taylor in retaliation under the First Amendment because she was obligated as an employee to report abuse of agency clients under 14 N.Y.C.R.R. §624.5(b)(l)(ii). The state argued that Taylor’s “speech was actually part of her ‘job duties’ and consequently it was not entitled to First Amendment protection.”
Putting that contention aside, Mordue said the state’s reasoning could not apply to retaliation Taylor claims for the comments she made to the newspaper.
“Defendants cannot seriously argue that she was required to make comments to reporters from The New York Times as part of her job with OPWDD,” Mordue wrote. “To the extent that plaintiff’s First Amendment retaliation claims are based on statements she made to reporters at The New York Times, the court finds that they are potentially protected speech claims under the First Amendment.”
On another aspect of Taylor’s complaint, Mordue said her claims for compensatory and punitive damages against two supervisors individually are not barred by the Eleventh Amendment and may go forward.
However, the judge dismissed her Fourteenth Amendment Equal Protection claim, saying he could find no contention that she was a member of a protected class. He also said she could not sustain her claim for compensatory and punitive damages against the agency or Taylor’s su-pervisors in their official capacities under the Eleventh Amendment.
The Times story appeared on Nov. 11, 2011, under the headline “For Disabled Care Complaints, Vow of Anonymity Was False.” It recounted how disability agency stated that its policy was to keep confidential all reports of concerns about the treatment of clients, including from agency employees.
But in the story, the agency ac-knowledged that ombudsmen were encouraged to turn over to agency officials the names of whistleblowerswho reported abuse or neglect.
The story recounted how Taylor said her agency’s ombudsman in the Albany region, Carrie Sonthivongnorath, had revealed her name to agency officials after Taylor had contacted her with reports of an agency worker cursing a resident and another making residents sit in a van on a particularly hot day.
“You’re supposed to be able to go to the ombudsman and report confidentially, but it didn’t happen that way—she turned me in,” Ms. Taylor told the newspaper. “The whole thing, in a nutshell, is that I went to the ombudsman, and they didn’t like it.”
Taylor suit’s claims that one of the Notices of Discipline she received were issued by the agency after her complaints appeared in the Times.
She said that while receiving the notice of discipline in 2011, a 2004 disciplinary notice that she thought was settled and removed from her personnel file instead remained in the file with a reference to her “guilt.”
Mordue dismissed a defamation claim on the basis of the 2004 notice remaining in her file, saying the claim would have had to have been made within one year of when the defamatory statement was made to be timely.
Taylor’s attorney, Robert Sadowski of Sadowski Fischer in Manhattan, said the ruling is in line with the reasoning of a similar Northern District decision filed by another developmental disability agency employee who claimed retaliation for his whistleblowing activities at the agency.
In Monsour v. New York State Office for People With Developmental Disabilities, 1:13-cv-0336, Judge Thomas McAvoy allowed employee Jeffrey Monsour to go forward with his First Amendment retaliation claim based on his whistleblowing activities at the agency.
In both Taylor and Monsour, the same Albany-area OPWDD supervisor, Cathy LaBarge, was named as one of the defendants.
“We are pleased that the judges have let us go ahead and have discovery against the individuals who we believe were at the heart of the retaliatory measures taken against them,” Sadowski said in an interview.
Sadowski said he believes the presence of an obligation in the law for employees to report abuse and neglect involving agency clients does not excuse actions taken by the agency to punish those workers for doing so.
“Whether you have a duty or not, the fact you are carrying out the obligation and are being retaliated against doesn’t make it OK,” he said.
Assistant Attorney General Michael McMartin argued for the state.