Employee Fired Over Safety Concerns – and Court Is Not Happy

A federal court in New York decided that an employer illegally fired an employee for reporting safety concerns relating to the COVID-19 virus.

The employer in this case was an ophthalmologist who fired an employee after she complained about a lack of workplace protocols relating to the virus.

Dr. David Kwiat, who operates Kwiat Eye and Laser Surgery PLLC, allegedly retaliated against employee Jenna Coolman, who raised the safety-related issues. Kwiat is the sole owner and the president of the medical practice.

Coolman began working for Kwiat as an ophthalmology technician in July of 2017.

The Department of Labor (DOL) said in its complaint against Kwiat and his practice that he chose not to implement appropriate safety protocols, such as mask-wearing and social distancing, as the pandemic raged between March and December of 2000.

Employee Reports Safety Concerns

It said Coolman repeatedly complained to her supervisor about the lack of proper protocols, to no avail.

In December of 2020 and again in January of 2021, Coolman reported her safety concerns to the New York State Department of Health.

That led to a late February 2021 phone call from the department to the practice. Kwiat confronted Coolman and fired her on the same morning that the call was received, the DOL said. Kwiat admitted to Coolman that he fired her because she reported her safety concerns to authorities, the agency added.

Coolman filed an OSHA whistleblower complaint the day after she was fired. She had never been disciplined before the date of her termination.

OSHA Says Employer Did Not Cooperate

Instead of complying with requests for more information about the safety concerns, the DOL said, Kwiat refused to provide information and admitted to OSHA that he fired Coolman because she complained to the state department.

The DOL’s March 2022 court complaint accused Kwiat and his practice of violating the OSH Act. Among other things, it sought damages and reinstatement.

In the court case, both sides asked the court to grant summary judgment in their favor. In early August of 2024, the court issued a memorandum decision and order. In the ruling, the court denied the defense motion and granted the plaintiff’s motion in part. It ruled that the defendants broke the law by firing the employee for reporting safety concerns.

How to Show Retaliation

The court explained that to win its claim of unlawful retaliation, the DOL had to show three things:

• Coolman participated in a protected activity.
• Coolman was subjected to an adverse job action after she participated in the activity.
• There is a causal connection between the protected activity and the adverse action.

The court decided that the required elements were all met. It rejected the defense argument that Coolman was terminated because she made a false report with the state department of health. It said there was evidence that the complaints were made based on a good-faith belief that the practice was not complying with safety mandates.

Therefore, the court found that the practice illegally retaliated against Coolman when it terminated her employment.

Stop Doing That, Court Says

The court enjoined the defendants from further violating the statutory provision under which the case was brought. It also required them to post a notice stating that going forward it will not retaliate against employees who similarly engage in protected activities by reporting safety concerns.

The DOL further sought an award of $773,931.77 in damages, including $100,000 in emotional distress damages and $500,000 in punitive damages.

The court said a further hearing is needed as to that request. It ordered the parties to confer and provide it with a joint status letter within 30 days.

 “The court’s decision reinforces the Occupational Safety and Health Act‘s guarantee that workers have the right to raise safety and health concerns to their employers and file complaints with OSHA and other regulatory agencies without fear of termination and retaliation and the chilling effect such actions have on workers’ coming forward with concerns about health and safety hazards in their workplaces,” said OSHA Regional Administrator Richard Mendelson in New York.

Su v. Kwiat Eye and Laser Surgery, PLLC, No. 1:22-cv-00264 (N.D.N.Y. 8/6/24).