03/31/2014
PROVIDENCE, R.I. — The state Supreme Court has ruled that the state Department of Behavioral Healthcare, Developmental Disabilities and Hospitals did not violate a housekeeper’s rights under the Whistleblowers’ Protection Act by placing him on administrative leave and making him undergo a psychiatric evaluation after he complained about coworkers bringing dogs to work and a missing vacuum cleaner.
The high court found that a decision by Peter W. Russo’s superiors to order an evaluation and place him on paid administrative leave did not “discharge, threaten or otherwise discriminate,” and thus did not violate the Whistleblowers’ Protection Act. It rescinds the $5,000 awarded to Russo for legal fees and $1,000 for emotional pain and suffering.
The decision overturns a forceful ruling by now-retired Superior Court Judge Francis J. Darigan Jr. following a five-day bench trial in 2010.
Russo sued the Department of Behavioral Healthcare, Developmental Disabilities and Hospitals, then called the Department of Mental Health and Retardation and Hospitals in 2002, alleging the department had violated the act.
According to testimony at trial, Russo had worked since 1999 as a housekeeper at the Highview day program for people with developmental disabilities in Hope Valley. In May 2000, he saw another employee drive off with a state-owned vacuum cleaner and reported it to his superior, Steven Strate.
Russo also complained about his coworkers bringing dogs to work, believing that he was being blamed for their effect on the cleanliness of the building. He asked that dogs be banned.
Russo was subjected to “snide” comments, and a flea collar was placed in his mailbox in retaliation, he told the court.
Strate testified that complaints about Russo’s cleaning had been “going on for years.”
Russo met with his superiors and two union stewards and was told that he was being placed on administrative leave beginning in January 2001, but that his “job was safe.” He would be required to undergo a psychiatric evaluation.
Russo hired a lawyer and went to a doctor of his own choosing for the evaluation, according to the decision. He resumed his work at the Highview building in March 2001.
In ruling, Darigan acknowledged that Russo “marched to a different drummer” and found that complaints employees had lodged against Russo were “patently, absolutely false, probably defamatory, and completely made up of whole cloth to destroy [Russo’s] reputation.”
The judge continued, “And [supervisors’] response, was inordinate and contemptuous, that educated people working in a social service agency dealing with challenged individuals would not have exhibited more sensitivity to a person that they should have known or did know is slightly different in the way they conducted their activities. And I think it’s a shame.”
The state challenged Darigan’s ruling, arguing it had not violated the Whistleblowers’ Protection Act.
The high court concluded that Russo’s supervisors’ actions amounted to those a reasonable person would take to neutralize a potentially contentious situation.
“Whether other decision-makers faced with such a situation would have acted in an identical manner is of little pertinence; what matters for present purposes is that there was nothing wrongful in what MHRH did to deal with the real-world situation with which it had to cope,” Justice William P. Robinson III wrote for the court.
Administrative leave with pay is not a suspension and by court precedent has been found to be a reasonable means of coping with a problematic workplace, the court said. “We cannot conclude that a reasonable employee would be deterred from alleging discrimination or engaging in further whistleblowing when there was no threat to his or her continued employment, salary, or benefits.”
Russo’s lawyer, Ronald L. Bonin, said he was disappointed by the ruling. “I feel very badly for Mr. Russo. He was treated badly.”
The Department of Behavioral Healthcare, Developmental Disabilities and Hospitals declined comment through its spokeswoman because the ruling involved a personnel issue.
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