N.Y.: OSHA Finds NYCTA Retaliated for Employee Participation in Safety Inspection

By Rosemarie Lally May 18, 2015

Finding that a New York City Transit Authority (NYCTA) employee was illegally discriminated against for exercising his safety rights under the National Transit Systems Security Act (NTSSA), The Occupational Safety and Health Administration (OSHA) ordered the NYCTA and supervisor Mark Ruggerio to pay the employee $52,500 in damages and to take additional corrective action.

The employee and Ruggerio, then the acting general superintendent at the NYCTA’s Linden Shop maintenance facility in Brooklyn, participated in a safety inspection by the New York Public Employees Safety and Health Bureau (PESH) on Aug. 9, 2012. The inspectors asked about the condition of a drill press, and Ruggerio told them it was not working. However, the employee said the press was operating and turned it on. The supervisor responded by threatening the employee with a loss of overtime work. The PESH inspectors intervened, telling Ruggerio that his behavior appeared to be retaliatory and that he must stop, but he did not.

The employee filed a timely whistleblower complaint with OSHA, which enforces the antidiscrimination provisions of NTSSA. He subsequently transferred to another job at the Linden shop. A year later, the employee contacted OSHA regarding possible harassment by his new supervisor. When OSHA contacted the transit authority for further information, the new supervisor shared information unrelated to the complaint with the employee's co-workers, causing them to shun him.

OSHA investigators determined that the employee's complaint had merit; he had engaged in protected activity by taking part in the safety inspection, filing his complaint, and sharing his concerns with OSHA. Based on the findings, OSHA ordered the transit authority to pay the employee $48,000 in punitive damages and $2,500 in compensatory damages; expunge the worker’s employment records; and refrain from further retaliation against him in the future. The agency also ordered Ruggerio individually to pay the complainant $2,000 in punitive damages.

The NYCTA also must provide all Linden Yards managers with OSHA whistleblower training, provide all new hires with information on OSHA jurisdiction, and post a notice to all employees of their whistleblower rights under NTSSA.

"The transit authority's response to this worker's actions suggests that employee safety is not its primary concern. Threatening or retaliating against even a single employee, as happened in this case, harms all employees. It can intimidate them into silence and allow hazards to flourish undetected until they injure or sicken workers. This type of culture must change," said Robert Kulick, OSHA's regional administrator in New York.

Both the employee and the transit authority have 30 days from receipt of OSHA's findings to file objections and request a hearing before a U.S. Department of Labor administrative law judge. If no objections are filed, the findings and order will become final and not subject to court review.

Rosemarie Lally, J.D., is a freelance legal writer and editor based in Washington, D.C.


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