New York City Transit Authority retaliates against employee for participating in safety inspection and filing complaint, OSHA finds

NEW YORK — It began as a routine safety inspection in August 2012 at the New York City Transit Authority's Linden Shop maintenance facility in Brooklyn. It ended with the U.S. Department of Labor's Occupational Safety and Health Administration finding that the transit authority and one of its supervisors discriminated against an employee for exercising his safety rights under the National Transit Systems Security Act. As a result, OSHA has ordered the NYCTA and supervisor Mark Ruggerio to pay the employee $52,500 in damages and take other corrective action.

"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.

The employee and Mark Ruggerio, then the acting general superintendent at the Linden shop, participated in a safety inspection by the New York Public Employees Safety and Health Bureau on Aug. 9, 2012. The PESH inspectors asked about the condition of a drill press, and Ruggerio told them it was not working. The employee stated that the press was operating and turned it on. The supervisor then threatened the employee with a loss of overtime work. PESH inspectors informed Ruggerio that his behavior appeared to be retaliatory and he needed to stop. He did not.

The employee filed a timely whistleblower complaint with OSHA, which enforces the antidiscrimination provisions of NTSSA. He also subsequently transferred to another job at the Linden shop. In July 2013, the employee contacted OSHA regarding possible harassment by his new supervisor and, in turn, OSHA contacted the transit authority for further information. The new supervisor then shared information unrelated to the complaint with the employee's fellow workers, leading them to shun him.

OSHA investigators determined that the employee's complaint had merit. Specifically, he engaged in protected activity when he took part in the safety inspection, filed his complaint and shared his concerns with OSHA. As a result of their findings, OSHA has ordered the transit authority to pay the employee $48,000 in punitive damages, $2,500 in compensatory damages, expunge the complainant's employment records and not retaliate against him in the future. It also orders Ruggerio individually to pay the complainant $2,000 in punitive damages.

In addition, the NYCTA 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.

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.

OSHA enforces the whistleblower provisions of NTSSA and 21 other statutes protecting employees who report violations of various airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, health care reform, nuclear, pipeline, worker safety, public transportation agency, maritime and securities laws.

Employers are prohibited from retaliating against employees who raise various protected concerns or provide protected information to the employer or to the government. Employees who believe that they have been retaliated against for engaging in protected conduct may file a complaint with the secretary of labor to request an investigation by OSHA's Whistleblower Protection Program. Detailed information on employee whistleblower rights, including fact sheets, is available at http://www.whistleblowers.gov/.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA's role is to ensure these conditions for America's working men and women by setting and enforcing standards, and providing training, education and assistance. For more information, visit http://www.osha.gov.

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Editor's note: The U.S. Department of Labor does not release names of employees involved in whistle-blower complaints.