“Advocate for Disabled Gets Chance to Pursue Whistleblower Retaliation Claim”, Women’s Bar News, April/May, 2007

By: Virginia K. Trunkes  In the past few years, Congress enacted the Sarbanes-Oxley Act, which contains a provision that protects corporate “whistleblowers” from retaliation or discipline.  Time Magazine awarded its 2002 Persons of the Year to three whistleblowers at Enron, WorldCom, and the FBI; and Clifford Levy received a Pulitzer Prize for Investigative Reporting for his New York Times series, “Broken Homes,” exposing the abuse of mentally ill adults in state-regulated homes.

One might suppose, then, that a 35-year state employee who advises of abuse against mentally disabled residents of state-licensed homes would be celebrated and rewarded.  Instead, as reflected in McLaughlin v. Pezzolla (NYLJ 3/6/07, p. 28 col. 1), Susan F. McLaughlin was terminated.

McLaughlin worked for the Willowbrook Consumer Advisory Board – an entity created to monitor the conditions for developmentally disabled adults at state-regulated residences.  Over the years, she reported numerous instances of neglect and abuse of the residents.  Yet, CAB failed to properly respond, according to McLaughlin’s complaint.  She contacted the New York Civil Liberties Union (“NYCLU”), detailing instances where two residents suffering from cancer did not receive prompt diagnosis and adequate treatment.  Receiving no response, McLaughlin wrote letters to the CAB Chair and the Commissioner of the Office of Mental Retardation and Developmental Disabilities (“OMRDD”) to report specific cases of neglect “resulting in illness, injury and/or death,” and urged that there appeared to be a systemic cover-up, as well as Medicaid fraud.  Neither the Chair nor the Commissioner took any direct action, but soon thereafter OMRDD staff members began to generate and collect complaints about McLaughlin’s workplace conduct.  Ultimately, CAB terminated her.

McLaughlin’s lawsuit for retaliation faced dismissal under Garcetti v. Ceballos, 126 S.Ct. 1951 (2006), in which the U.S. Supreme Court held that public employees who make statements pursuant to their official duties are not protected by the First Amendment.  The rationale is that they are not speaking as citizens addressing matters of public concern.  The McLaughlin court, however, declined to dismiss the complaint, finding that the allegations that McLaughlin went outside her organization and her chain of command exempted her from the reaches of Garcetti.  The court reasoned that McLaughlin’s alleged actions created an issue of fact as to whether her speech concerned matters beyond the scope of her duties.

McLaughlin teaches that going outside one’s organization or chain of command may actually protect a government worker’s First Amendment rights and job.  However unfortunate, it helps pave the way for protecting the rights of those who speak out to protect others.