Harte v. Metropolitan Transportation Authority/New York City Transit Authority and Mark Ruggiero (agency decision, September 6, 2019)

Plain-English summary

New York City Transit Authority employee Janathan Harte reported safety hazards and participated in a state inspection at a shop that fabricated track components. After he disputed management's claim that an unguarded drill press was inoperable by turning it on, a supervisor threatened his overtime and job assignment. The Board held that the National Transit Systems Security Act protects reports about employee workplace safety, not only risks to the public or terrorism. It also held that six lost vacation days were compensable employment benefits and affirmed a $1,656 award. The Board reduced the requested appellate attorney fees as excessive and insufficiently documented, awarding $7,698, then reissued its decision solely to correct counsel identifications.

Decision snapshot

• Cited authorities: 6 U.S.C. § 1142; 29 C.F.R. §§ 1982.102 and 1982.110
• Outcome: NTSSA liability and $1,656 compensatory award affirmed; complaint granted; appellate attorney fees awarded at $7,698.
• Key point: NTSSA whistleblower protection covers employee workplace-safety reports even when the reported hazard does not threaten the public.

Full text (DOL official public release)

U.S. Department of Labor Administrative Review Board
200 Constitution Avenue, N.W.
Washington, D.C. 20210

  In the Matter of:


  JANATHAN HARTE,                                 ARB CASE NO. 2017-0002

                  COMPLAINANT,                    ALJ CASE NO. 2015-NTS-00002

         v.                                       DATE: September 6, 2019

  METROPOLITAN TRANSPORTATION
  AUTHORITY/NEW YORK AUTHORITY
  and MARK RUGGIERO

                  RESPONDENTS.

  Appearances:

  For the Complainant:
        Charles C. Goetsch, Esq.; Charles Goetsch Law Offices LLC; New
        Haven, Connecticut

  For the Respondent:
        James J. Gallagher, Esq. and Robert K. Drinan, Esq.; Metropolitan
        Transportation Authority Legal Department; Brooklyn, New York

  For the Assistant Secretary of Labor for Occupational Safety and Health as
  Amicus Curiae:

         Kate S. O’Scannlain, Esq.; Jennifer S. Brand, Esq.; William C. Lesser,
         Esq.; Megan E. Guenther, Esq.; and John M. D’Elia, Esq.; United
         States Department of Labor; Washington, District of Columbia

  Before: William T. Barto, Chief Administrative Appeals Judge; James A.
  Haynes and Daniel T. Gresh, Administrative Appeals Judges.





                                        ERRATA

         On August 20, 2019, the Administrative Review Board issued a Final
  Decision and Order (D. & O.) affirming the ALJ's decision below. In the caption of
  our decision, the Board inadvertently misidentified counsel for the parties.
  Accordingly, we hereby reissue the Final Decision and Order to correct the
  identification of counsel who made appearances before the Board in this matter. In
  all other respects, the D. & O. remains unchanged.


                          FINAL DECISION AND ORDER

         PER CURIAM. This case arises under the employee protection provisions of the
  National Transit Systems Security Act (NTSSA), 6 U.S.C.A. § 1142, and its
  implementing regulations, 29 C.F.R. Part 1982 (2014). Janathan Harte filed a
  complaint with the Occupational Safety and Health Administration (OSHA)
  alleging that his employer, New York City Transit Authority (NYCTA),
  discriminated against him for complaining about unsafe workplace practices in
  violation of NTSSA. The Regional Administrator determined that the complaint was
  timely, that the parties are subject to the Act, and that Harte had engaged in
  protected activity. NYCTA objected and requested a hearing with the Office of
  Administrative Law Judges. After an evidentiary hearing, an Administrative Law
  Judge (ALJ) entered a Decision and Order (D. & O.) concluding that the
  Respondents had violated the whistleblower protection provisions of the NTSSA
  and awarded compensatory damages. NYCTA petitions for review, challenging the
  ALJ’s findings. Complainant has filed a response brief and the Department of
  Labor’s (DOL) Solicitor of Labor has filed an amicus brief on behalf of the Assistant
  Secretary for the Occupational Safety and Health Administration in support of the
  ALJ’s decision. For the following reasons, we affirm.

                                     BACKGROUND

        Harte was employed by NYCTA, a public transportation agency subject to the
  NTSSA. Specifically, Harte worked in the Linden Shop, which fabricated track
  panels and other track related items in the shop and organized fleet operations
  which involved trucks that distribute material for track jobs. Harte filed a
  complaint in June, 2012, with the New York State Department of Labor’s Public



  Employee Safety and health (PESH) agency regarding various workplace safety
  hazards at the Linden Shop. As a result of the complaint, on August 9, 2012, two
  PESH inspectors, Lam and Rivera, visited the shop to conduct a health and safety
  inspection. Harte was present for part of the investigation, and Respondent’s
  representative Ruggiero and union officials were also present. Approximately five
  hours into the investigation, Harte, Ruggiero and the inspectors stopped at a device
  called a drill press. There was a discussion regarding the operability and safety of
  the drill press between Harte, Ruggiero and Lam regarding the lack of a cover
  guard. Harte disputed Ruggiero’s claim that the drill press was not operable and
  demonstrated this statement by turning on the press. Ruggeiro reacted angrily
  threatening to withdraw Harte’s overtime and changing Harte to a less favorable
  job in the shop. In addition, the supervisors blamed Harte for negative changes in
  the work-place before his coworkers. Harte filed a retaliation complaint with PESH,
  which referred the claim to OSHA on September 27, 2012.

                        JURISDICTION AND STANDARD OF REVIEW

         The Secretary of Labor has delegated to the Administrative Review Board
  (ARB) the authority to issue final agency decisions in review or on appeal of matters
  arising under the NTSAA and its implementing regulations at 29 C.F.R. Part
  1982. 1 The ARB will affirm the ALJ’s factual findings if supported by substantial
  evidence, but reviews conclusions of law de novo. 2

                                       DISCUSSION

         The NTSSA provides that a public transportation agency shall not discharge,
  demote, suspend, reprimand, or in any other way discriminate against, including
  but not limited to intimidating, threatening, restraining, coercing, blacklisting, or
  disciplining, an employee if such discrimination is due, in whole or in part, to the
  employee’s lawful, good faith act done, or perceived by the employer to have been

  1      Secretary’s Order No. 01-2019, Delegation of Authority and Assignment of
  Responsibility to the Administrative Review Board, 84 Fed. Reg. 13072 (April 3, 2019); 29
  C.F.R. §1982.110(a)(2012).

  2     29 C.F.R. § 1982.110(b); Blackie v. Smith Transp., Inc., ARB No. 11-054, ALJ No.
  2009-STA-043, slip op. at 7 (ARB Nov. 29, 2012).




  done or about to be done, to provide information or assist in an investigation
  regarding any conduct that the employee reasonably believes constitutes a
  violation of a public transportation safety or security law, rule, or regulation. 3 In
  her D. & O., the ALJ initially rejected NYCTA’s contention that the scope of
  protected activity is limited to matters affecting the public. Specifically, she found
  that Congress did not evidence an intention to exclude employee-only safety
  hazards from the broad umbrella of safety threats under the NTSSA, as well as its
  sister act the Federal Rail Safety Act (FRSA), 49 U.S.C.A. § 20109, as amended by
  Section 1521 of the Implementing Recommendations of the 9/11 Commission Act of
  2007 (9/11 Act), Pub. L. No. 110-53. The ALJ also found that Harte established that
  Respondent violated the whistleblower protection provisions of the Act, and that
  Respondent did not offer any evidence that it would have taken the same adverse
  actions in the absence of the protected activity. Consequently, the ALJ awarded
  compensatory damages in the amount of $1656, but denied damages for emotional
  distress and punitive damages.

         On appeal, Respondent challenges the ALJ’s conclusion that the employee
  protection provision of the NTSSA are applicable to employee’s complaints of
  workplace safety concerns. Hart and the SOL urge the ARB to affirm the ALJ’s
  decision that the protected activity in this case is covered under the NTSSA. We
  note that the plain language of the NTSSA protects an employee who reports safety
  and security concerns and is not limited to actions involving public safety or threats
  of terrorism. Congress has other employer protection statutes that limit the
  application of whistleblower protections to the specific public concerns giving rise to
  a specific parent Act. 4 But in this case, the NTSSA was modeled after the FRSA
  and shares its implementing regulations. The provisions relating to the FRSA have
  been interpreted to protect whistleblowers who complain about workplace safety, as
  have those relating to the NTSSA. 5 As there is no express limiting language under

  3      6 U.S.C. §1142 (2007); 29 C.F.R. § 1982.102.

  4      See Energy Reorganization Act of 1974 (ERA), as amended, 42 U.S.C.A. § 5851;
  Surface Transportation Assistance Act, 49 U.S.C. § 31105 (2007), as implemented at 29
  C.F.R. Part 1978 (2018); Wendell H. Ford Aviation Investment and Reform Act for the 21st
  Century, 49 U.S.C. § 20109(d)(2)(A) (2014).

  5     See Riley v. Dakota, Minnesota & Eastern Railroad, ARB Nos. 16-010, 16-052, ALJ
  No. 2014-FRS-044 (ARB July 6, 2018); Mercier v. Union Pacific Railroad Co., ARB No. 13-
  048, ALJ No. 2008-FRS-004 (ARB Aug. 26, 2015); Graves v. MV Transportation, Inc., ARB



  this Act, and safety is referred to a number of times without reference or limitation
  to public security or terrorism, we reject Respondent’s contention that the NTSSA
  does not apply to protect safety concerns that do not reach to the general public.

         On appeal, NYCTA also contends that the ALJ erred in awarding
  compensatory damages where the only wages lost were covered by paid time off.
  NTSSA provides that workers who experience retaliation for engaging in protected
  whistleblower activities are “entitled to all relief necessary to make the employee
  whole.” 6 U.S.C. § 1142(d)(1). Such relief includes compensation for lost vacation
  days as they represent terms, conditions, and privileges of employment. 6
  Accordingly, we affirm the ALJ’s conclusion that Harte is entitled to compensation
  in the amount of $1656, representing six days of wages at $276 per day.

          With his response brief, Harte’s counsel filed a petition for fees with exhibits
  requesting $11,298 in attorney's fees for litigation before the Board. 7 NYCTA has
  not objected to the amount of this request, but we have examined the petition and
  find the attorney's fee request to be inadequately documented and excessive.
  Specifically, we note that counsel avers that he spent over 12 hours drafting and
  editing a brief on issues that were extensively briefed, argued, and litigated below,
  and were the subject of extensive discussion by the ALJ in well-reasoned decision.
  We are unpersuaded by counsel’s assertions concerning the novelty of this area of
  practice, and note that the ALJ cited relevant caselaw extending back to 2008.
  Without adequate and persuasive explanation as to the necessity for such extensive
  effort, we cannot approve the requested amount, as it is, under the circumstance of
  this appeal, unreasonable and unsupported. Accordingly, we will reduce the amount
  billable for effort on the appellate brief in this matter by six hours. We will
  therefore grant Harte’s request in part and order NYCTA to pay attorney’s fees in
  the amount of $7,698.00 for services provided by Harte’s counsel before the Board.



  No. 14-045, ALJ No. 2013-NTS-002 (ARB July 23, 2015); Winters v. San Francisco Bay Area
  Rapid Transit District, ARB No. 12-091, ALJ No. 2010-NTS-001 (ARB Aug. 27, 2013).

  6     Gutierrez v. Regents of the University of California, ARB No. 99-116, ALJ No. 98-ERA-
  19 (ARB Nov. 13, 2002).

  7      Specifically, the fee petition requests 18.83 hours of legal services at the hourly rate
  of $600.



                                     CONCLUSION

         The ALJ did not err by concluding that the NTSSA provides employees
  protection against retaliation for raising concerns relating to workplace safety, as
  well as public safety, and that Complainant is entitled to compensatory damages for
  lost vacation days. The findings of fact and conclusions of law by the ALJ below are
  AFFIRMED and the Complaint is GRANTED. In addition, we GRANT IN PART
  Complainant’s petition for attorney’s fees for work performed before the Board in
  successfully defending the appeal, as modified above.

         SO ORDERED.