Ruling may open OPWDD code of silence
Jury agrees state agency retaliated against worker who took problems to journalists
An employee of the state Office for People with Developmental Disabilities won a workplace retaliation lawsuit against the agency Monday could set a precedent enabling employees to tell the public about problems at facilities such as Sunmount, based in Tupper Lake.
Jeffery Monsour, an OPWDD direct-care worker for 18 years, reported that he had seen instances of troubling practices, including falsified fire drills, sexual abuse and a lack of discipline for abusive employees to his supervisors. After seeing no changes made and the deaths of four disabled residents in a 2009 fire at an OPWDD group home in Wells, in the southern Adirondacks, he turned his knowledge over to the press in 2011.
Monsour has since been denied promotions and transfers and had a memo stuck in his personal file accusing him of abuse, which he said was payback for going public. He sued the agency for infringing on his First Amendment rights by retaliating against him for speaking to journalists, and a jury sided with him on Monday in Syracuse.
“He’s vindicated,” Monsour’s lawyer Robert Sadowski said. “He will forever have a judgment that says that the agency retaliated against him in multiple acts.”
The abuse allegation in Monsour’s file stemmed from a loud argument he had with a co-worker in front of a resident, where he said he was sworn at while he tried to defuse the situation. The allegation was settled in arbitration, and though it was supposed to be removed from his file within 18 months, it remained even after he submitted a letter with no admission of guilt.
Monsour was awarded $1 in damages and continues to work at OPWDD, splitting time between the Stony Creek facility and Fort Edward day habilitation center.
Sadowski said the verdict in Monsour’s case could set up future cases from OPWDD employees who feel they are being retaliated against for speaking out.
“The agency has to know they can’t act with impunity against their staff and try to intimidate them, and silence them, and conceal issues that employees bring to light,” Sadowski said. “This sends a signal that the agency will be held accountable if they retaliate against their staff who raise issues about the discrimination of disabled individuals in OPWDD’s care.”
Employees at Sunmount, the OPWDD facility in Tupper Lake, generally do not on the record with journalists for fear of losing their jobs.
“They are afraid,” former Sunmount employee and CSEA union official Dave McMahon said. “The minute somebody talks to the news or media of any kind, next thing you know they get put out on administrative leave and then the henchmen from the Justice Center drum up some crazy charge against them. Then they’re out of work for years or they end up getting fired.s”
McMahon was not convinced Monsour’s win will change anything until individuals from Albany gets involved with making administrative changes at the facility. The problems are too large and complex to be solved in a single court decision he said.
The allegations Monsour brought to the press included complaints that the state was not testing for radon, the second leading cause of lung cancer, at OPWDD facilities. This evidence was blocked from inclusion in the trial.
“We had such overwhelming evidence that even though she [Judge Brenda Sannes] limited what we could present to the jury, we still were able to present a very strong case,” Sadowski said.
Though the retaliation suit is over, the issues Monsour brought to light are not.
“The safety abuse prevention measures and most the measures that Jeff has brought to the attention of the state, the state still has not rectified,” said Michael Carey, founder of the Jonathan Carey Foundation, which advocates for people with developmental disabilities under state care — named for his son, who was killed by staff at O.D. Heck, an OPWDD facility in Schenectady . “Most of those dangers still exist to date.”
According to Carey, untrained, unattended male employees continue to bathe and perform female personal hygiene, known as peri care, on disabled girls and women.
“As a parent that lost a child, my son Jonathan, I’m pleading with whistleblowers to do the right thing,” Carey said.