Frank L. Bordell
v.
General Electric Company
208 A.D.2d 219 (N.Y.A.D. 1995)
Mercure, J.
On this appeal, plaintiff urges us to construe New York’s so-called ” Whistleblowers’ Statute” (Labor Law ‘ 740) so as to extend its protection to employees harboring a mere “reasonable belief” that “an activity, policy or practice of the employer … is in violation of law, rule or regulation ” (Labor Law ‘ 740 [2] [a]).
Plaintiff, formerly employed by defendant General Electric Company (hereinafter GE) as a health physicist at the Knolls Atomic Power Laboratory, alleges that he was discharged from his employment for informing the Department of Energy (hereinafter DOE) of his opinion, based on his preliminary calculations, that as many as seven employees might have been exposed to radiation at levels sufficient to trigger the mandatory reporting requirements of DOE Order 5484.1 if further factual investigation (which GE prevented him from conducting) corroborated the scientific assumptions underlying the calculations. Supreme Court granted partial summary judgment in favor of defendants dismissing the causes of action predicated upon Labor Law ‘ 740 upon the ground that the statute requires proof of an actual violation of a law, rule or regulation and, as such, an employee’s good-faith reasonable belief that a violation may have occurred is insufficient. Plaintiff appeals.
We are persuaded that the statute’s laudable purpose of encouraging employees to report violations of health and safety laws and regulations would be furthered by our adoption of a “reasonable belief” standard such as that proposed by plaintiff. The harsh reality is, however, that courts are not permitted to interpret laws as they would have them written. Rather, “[i]n interpreting statutes, which are the enactments of a coequal branch of government and an expression of the public policy of this State, we are … bound to implement the will of the Legislature; statutes are to be applied as they are written or interpreted to effectuate the legislative intention.” For the reasons set forth below, we are constrained to the view that the Legislature did not intend to impose (and, in fact, intentionally rejected) a “reasonable belief” standard when it enacted Labor Law ‘ 740. We accordingly affirm Supreme Court’s order.
Labor Law ‘ 740 provides in relevant part: “An employer shall not take any retaliatory personnel action against an employee because such employee … discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer that is in violation of law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety” (Labor Law ‘ 740 [2] [a] [emphasis supplied]). Applying first the axiom that “a statute is to be construed according to the ordinary meaning of its words”, we find nothing in the language of Labor Law ‘ 740 to suggest that anything less than an actual “violation of law, rule or regulation ” is required, a conclusion substantially buttressed by the fact that, prior to the enactment of Labor Law ‘ 740 (L 1984, ch 660), three successive efforts to enact a whistleblowers’ statute embodying a reasonable belief standard had failed. Equally significant is the fact that the public sector Whistleblowers’ Statute, Civil Service Law ‘ 75-b, which previously contained language essentially identical to Labor Law ‘ 740, was amended in 1986 to contain precisely the language that plaintiff would now read into Labor Law ‘ 740. Fundamentally, the Legislature’s failure to similarly amend Labor Law ‘ 740 evidences an intent that it contain no corresponding provision, and the legislative history to the amendment to Civil Service Law ‘ 75-b specifically indicates that the protection afforded by Labor Law ‘ 740 was deliberately meant to be narrower than that of Civil Service Law ‘ 75-b. . . .
As a final matter, we are not persuaded by plaintiff’s circular argument that defendants’ violation of DOE order 5483.1A, which itself prohibits a contractor from taking adverse action against an employee for filing a good-faith complaint with DOE, is an additional predicate for his causes of action under Labor Law ‘ 740. It is neither logically nor legally possible for plaintiff’s report of his illegal suspension or discharge to have precipitated his suspension or discharge. In view of our determination, we need not consider the parties’ remaining contentions.
Cardona, P. J., Mikoll, Casey and Peters, JJ., concur.
Ordered that the order is affirmed, with costs.
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Bordell v. General Electric Company 88 N.Y.2d 869, 667 N.E.2d 922, 644 N.Y.S.2d 912 (N.Y. COURT OF APPEALS 1996)
Memorandum.
The judgment appealed from and the order of the Appellate Division brought up for review should be affirmed, with costs.
Plaintiff was employed by General Electric Company as a health physicist at the Knolls Atomic Power Company when he reported to his superiors that, in his opinion, as many as seven employees might have been exposed to radiation levels sufficient to trigger Department of Energy (DOE) mandatory reporting requirements. Dissatisfied with the response of his supervisors, plaintiff reported his findings directly to DOE. Three weeks after contacting DOE, plaintiff was suspended from his job; he was fired eight days later. Thereafter, plaintiff commenced this action claiming that he was discharged in retaliation for his report to DOE. He seeks a declaration that General Electric’s acts constituted a violation of Labor Law ‘ 740, the “whistleblowers’ statute.”
Labor Law ‘ 740 (2) (a) provides: “An employer shall not take any retaliatory personnel action against an employee because such employee … discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer that is in violation of law, rule or regulation which violation creates and represents a substantial and specific danger to the public health or safety” (emphasis supplied). Plaintiff seeks protection of the statute although he concedes that GE was not actually in violation of law, rule or regulation. He urges that section 740 protects employees who make statements upon a reasonable belief that a law, rule or regulation affecting public health and safety has been violated.
[The N.Y.] Supreme Court rejected plaintiff’s argument and dismissed the causes of action based upon Labor Law ‘ 740, and the Appellate Division affirmed. Because we agree with the courts below that a cause of action predicated on Labor Law ‘ 740 requires proof of an actual violation, we also affirm.
As explained by Justice Mercure in the Appellate Division decision, the language and legislative history of Labor Law ‘ 740 militate in favor of a construction of that section requiring proof of an actual violation of law to sustain a cause of action, and the legislative history of the parallel public sector whistleblowers’ statute (Civil Service Law ‘ 75-b) also supports that conclusion. Civil Service Law ‘ 75-b was amended in 1986 to “widen[ ] the protection for a public employee.” by providing protection for disclosure of information “which the employee reasonably believes to be true and reasonably believes constitutes an improper governmental action.” There was no similar amendment to Labor Law ‘ 740. Here, there were allegations that plaintiff had a reasonable belief of a possible violation, but no proof of an actual violation. Thus, plaintiff’s Labor Law ‘ 740 claims are untenable and were properly dismissed.
Judgment appealed from and order of the Appellate Division brought up for review affirmed, with costs, in a memorandum.