Upholding Principle
When Holland & Knight's construction client was sued for allegedly violating New York State's Whistleblower Law, it refused to compromise its position. It had sought and obtained for its safety officer a waiver of a certification requirement based on his skills and experience in order for him to be completely in charge of their safety program on New York City's Newtown Creek Wastewater Treatment Project. As it turned out, the fellow was in over his head, and, eventually, the New York City Department of Environmental Conservation withdrew its waiver of certain requirements and instructed our client to replace the safety officer in one of two positions that he was holding. After discussing the possibility of keeping him on in the lower position at a reduced salary, the employee rejected that notion and falsely asserted that his employer was retaliating against him because he had complained to the authorities about unsafe health and safety conditions on the site that he maintained presented a substantial and specific danger to the public. He had in fact threatened to and did in fact complain to the DEP, only once his job was in jeopardy, that not only were these unsafe and threatening conditions present, but that the employer had also forced him to cover up the deficiencies and prevented him from performing his duties as a safety officer. Only after he went to the authorities to complain, the whistleblower claimed, was he fired.
For the first two years of litigation, Plaintiff engaged in obstructionist tactics during discovery, repeatedly refusing to respond to discovery requests until ordered to do so by the Court, thereby forcing upon the employer unnecessary additional litigation costs. Eventually the Holland & Knight Labor and Employment Group succeeded in having the vexatious whistleblower's claim dismissed for failure to prosecute. However, new counsel successfully restored the plaintiff's case to the court's calendar over Holland & Knight's vigorous opposition. Holland & Knight appealed the court's restoration of the case to the calendar, but was unsuccessful in obtaining a stay of the case pending the appeal. Accordingly, both discovery and the appeal proceeded simultaneously under New York state law. The whistleblower's discovery obstruction continued as he pursued an obvious strategy of making the litigation more costly than even the hefty settlement being demanded. On principle, our client refused to compromise. Ultimately, nearly five years after the litigation began, it received the decision of the Appellate Division that held the lower court had improvidently restored the case to the calendar.