PES Decisions

Decisions
Docket Number Date Issued Case Name Decision Summary
PES 18-001 06/24/2020 Paul F. Harrington Petition granted. Respondent’s determination which dismissed Harrington’s complaint finding that a prima facie case of retaliation could not be established because Harrington’s employer did not take any adverse action against him found to be unreasonable. Petitioner met the minimal burden of establishing a prima facie case of retaliatory discrimination, which respondent failed to rebut. Petitioner testified at hearing to suffering an adverse employment action. Burden shifted to respondent to show legitimate non-discriminatory reason for termination. Respondent failed to meet its burden to prove that employer had legitimate, non-discriminatory reasons for its actions. Respondent's evidence on this issue limited to hearsay. Although hearsay evidence generally may be admissible in administrative hearings, such evidence insufficient to meet respondent's burden here. Matter remanded to respondent for further proceedings in accordance with decision.
PES 16-016 01/29/202 Town of Mayfield Petition denied. Petitioner filed appeal of respondent’s determination that petitioner unlawfully retaliated against highway employee terminated by supervisor within days of having filed workplace violence report against supervisor and of having complained to supervisor of unsafe working conditions. Petitioner failed to show respondent’s determination was unreasonable or invalid. Petition dismissed.
PES 17-013r 01/29/2020 Anna Guan Request for reconsideration denied. Petitioner provided no justification for further reconsideration of Board’s October 23, 2019 decision dismissing petition. Application for reconsideration seeks to re-litigate arguments made at hearing and/or contest Board’s determination of weight of evidence. Request denied.
PES 16-012 12/11/2019 Village of Port Chester Petition denied in part, granted in part. After house fire where two firefighters were injured, respondent issued a Notice of Violation that included two citations for violations of the PESH Act. In Citation 1, respondent found petitioner failed to: (Item 1) establish and maintain written respiratory protection program, (Item 2) ensure that visual, voice or signal line communication between firefighters was maintained between employees in an IDLH atmosphere and the employee(s) located outside the IDLH atmosphere, (Item 3) provide training and education for all fire brigade members commensurate with their duties, (Item 4) provide training and education frequently enough to assure each fire brigade member was able to perform assigned duties and functions satisfactorily and in a safe manner, (Item 5) ensure that respirators were provided to, and used by, each fire brigade member. In Citation 2, respondent found petitioner failed to: (Item 1 (a)) use certain forms required by regulation, or their equivalents to record work-related injuries, (Item 1 (b)) include a complete description of work-related injury for firefighter who suffered electric shock, and (Item 1 (c)) accurately complete an employee-injury form for firefighter who suffered smoke-inhalation injuries requiring hospitalization. Citation 1 Item 4 and Citation 2 Item 1 (a) revoked. All other violations affirmed. Petition dismissed in part, granted in part.
PES 15-005 10/23/2019 Robert J. Wolff Petition denied. Petitioner's motion for reconsideration of 2009 Board decision for failure to appear at hearing denied where motion made some 6 years after decision issued and because petitioner failed to establish good cause. Petitioner did not meet minimal burden to establish prima facie case of employer retaliation. Undisputed that employer aware of protected activity (petitioner's filing of health and safety complaints) and that petitioner suffered adverse employment action (elimination of position). Insufficient evidence to show unreasonable for respondent to conclude there was no causal connection between petitioner's health and safety complaints and elimination of his position nearly one year later.
PES 17-010 10/23/2019 Joel W. Frederick Petition denied. Undisputed that employer aware of protected activity (petitioner's filing of workplace violence report) and that petitioner suffered adverse employment actions (mental health arrest, involuntary leave, loss of overtime, loss of use of master keys needed to perform job). Respondent's determination that claimant's discrimination complaint untimely was reasonable where petitioner failed to meet his burden of proof to establish that petitioner's retaliatory discrimination complaint filed prior to expiration of statutory 30-day filing deadline.
PES 17-013 10/23/2019 Anna Guan Petition denied. Petitioner did not meet minimal burden to establish prima facie case of employer retaliation. Undisputed that employer aware of protected activity (petitioner's filing of health and safety complaints) and that petitioner suffered adverse employment action (termination). Petitioner failed to show requisite causal connection. Filing of retaliation complaint approximately three years after filing of health and safety complaints too remote in time to show causal relationship.
PES 16-013 09/11/2019 Cory Wright Petition granted. Petitioner met minimal burden of establishing prima facie case of retaliatory discrimination, which respondent failed to rebut. Undisputed at hearing that petitioner engaged in activities protected by PESHA. Facts support finding that employer aware of those activities and causal nexus between protected activity and adverse action established by relatively short period between complaints and adverse action. Burden shifted to respondent to show legitimate non-discriminatory reason for termination. Respondent failed to meet its burden to prove that employer had legitimate, non-discriminatory reasons for that termination. Respondent's evidence on this issue limited to hearsay. Although hearsay evidence generally may be admissible in administrative hearings, such evidence insufficient to meet respondent's burden here. Respondent failed to rebut petitioner's proof, which established prima facie case of retaliatory discrimination, with credible and reliable evidence, making respondent's determination dismissing petitioner's complaint unreasonable. Matter remanded to respondent for further proceedings in accordance with decision.
PES 16-010 05/29/2019 Joel W. Frederick Decision corrected and reissued. Petition granted. Determination under Article 2 revoked as public employer not in compliance with Workplace Violence Protection Program requirements under 12 NYCRR 800.6. August 8, 2018 decision in matter revoked and replaced with this corrected, reissued decision.
PES 19-001 05/29/2019 Triborough Bridge and Tunnel Authority' Second Petition for Modification of Abatement Date Proceeding dismissed after no party to which notice of modification of abatement date sent objected to DOL determination to extend abatement date for second time.
PES 19-002 05/29/2019 Brian M. Granger Petition denied. Petition dismissed as petitioner failed to comply with Board Rule § 66.3 (c) and amend petition to specify facts showing determination unreasonable and/or invalid.
PES 16-010 8/8/2018 Joel W. Frederick Respondent's determination revoked. Respondent erred in finding employer's program in compliance with Workplace Violence Protection Program requirements. After his supervisor threatened petitioner with physical harm, employer required to implement workplace violence prevention plan by classifying incident as act of workplace violence, and taking appropriate administrative action, neither of which it did. Respondent also erred in failing to issue Notice of Violation.
PES 16-007 6/6/2018 Pamela Orcutt Petition granted; respondent's determination revoked. Respondent's investigation report showed petitioner's allegations to have been thoroughly investigated, but respondent provided no explanation for not considering and making findings on each allegation when issuing its determination. Respondent made no determination regarding whether petitioner terminated for protected activity; determination invalid and unreasonable.
PES 15007 3/7/2018 Gates Chili Central School District Petition granted, and respondent's determination revoked where respondent incorrectly determined petitioner violated Public Employee Safety and Health Act (PESHA) in terminating bus driver. At hearing, petitioner argued that respondent's determination was invalid or unreasonable because, among other things, Collins Presumption, established in Collins v. New York City Transit Authority, 305 F3d 113 (2d Cir 2002), precluded re-examination of claim of retaliation after employee had had opportunity to fully and fairly litigate her retaliation claim in earlier disciplinary proceeding held pursuant to collective bargaining agreement and in subsequent unsuccessful Article 78 proceeding. No new evidence was raised at hearing and respondent did not show arbitrator in earlier proceeding was biased. As CollinsPresumption applies, determination revoked.
PES 17-004 10/25/2017 Badrul Chowdhury Petition denied. Petitioner filed appeal under Labor Law § 27-a (6) (c) alleging notice of violation and order to comply issued by Commissioner finding that petitioner's employer violated several safety and health standards was unreasonable because Commissioner failed to find claimant's employer had violated confined space standard, 29 CFR 1910.146. Petitioner failed to present any credible evidence that his employer had violated confined space standard, and Board found Commissioner's investigator credible that he had inspected location and found no violation of 29 CFR 1910.146.
PES 16-014 6/14/2017 Badrul Chowdhury Motion to file late answer denied and petition granted where respondent failed to file timely answer after Board granted 60-day extension of time to respond to petition. Law-office failure insufficient grounds to show good cause and does not excuse delay in filing pleading. Failure to timely file deemed waiver of right to participate in proceeding. As respondent failed to deny factual allegations, these were admitted; petition granted.
PES 14-014 5/3/2017 Town of Lee Petition denied. Petitioner failed to show it was unreasonable for respondent to determine that complainant employee met prima-facie requirements; respondent reasonably determined there was sufficient nexus between protected activity and adverse employment action (termination). Respondent's conclusion that termination causally related to protected activity reasonable as causation element of prima facie retaliation can be shown indirectly when discriminatory treatment closely follows protected activity. Petitioner failed to show legitimate, nondiscriminatory reason for termination; its reason-economic efficiency-pretextual. Respondent's prima facie case, together with unanswered questions and evidentiary gap related to termination suggest intentional, unlawful discrimination.
PES 14-016 3/1/2017 South Glens Falls Fire Company, Inc. Petition dismissed after Board found requisite nexus between petitioner's adverse actions against complainants and their filing of health-and-safety complaints. Petitioner did not dispute that complainants engaged in protected activity or suffered adverse employment actions; petitioner failed to show it did not know complainants' identity and presented no credible evidence to show legitimate, non-discriminatory reason for demoting and expelling complainants.
PES 14-015 1/25/2017 SUNY College of Environmental Science and Forestry Petition granted. Prima facie case of retaliation established as no dispute that claimant engaged in protected activity (raising safety and health concerns), that petitioner aware of complaints, that claimant suffered adverse employment action (termination) and that causal nexus between protected activity and adverse action established by relatively short period between complaints and adverse action existed. Burden shifted to petitioner to show legitimate non-discriminatory reason for termination. Petitioner produced credible evidence that it terminated employee because she did not return to work after approved FMLA leave ended as required by its well-established FMLA leave policy. Petitioner also offered credible evidence of its practice of encouraging employees to report safety and health issues, of promoting health and safety compliance and of not retaliating against reports of health and safety concerns. Undisputed that employee did not communicate with petitioner after she left on approved leave; respondent did not rebut or offer evidence petitioner used policy to terminate employee as pretext for retaliation. Petitioner met burden in proving non-discriminatory reason for termination, which had nothing to do with protected activity; respondent's unreasonable determination revoked.
PES 14-013 5/25/2016 Zoom Flume Water Park, LLC Petition granted. Notice of violation and order to comply with Industrial Code Rule 45-2.8 revoked. As apparent purpose of regulation is to protect minors from exposure to machinery, rule inapplicable to water slide at issue.
PES 15-010 3/2/2016 Todd Saltsman Proceeding dismissed where petitioner failed to comply with Rule 66.3 (d) and amend petition.
PES 12001 3/11/2015 New York City Housing Authority Respondent's motion to strike substantive allegations in petition granted, leaving no grounds for finding orders invalid or unreasonable; identical claims raised by petitioner in earlier proceedings have been rejected (Matter of the Petitions of City of New York Department of Administration Services et al., Docket Nos. PES 10-003, 10-004, 10-005, 10-016 and 11-007 [June 7, 2011], affirmed sub nom Matter of The City of New York v Commissioner of Labor, 44 Misc 3d 612 [Sup Ct, New York County 2014]), requiring that motion to strike be granted and petition dismissed.
PES10011 4/10/2014 Mt. Vernon City School District Petition dismissed for failure to file an amended petition.
PES10003 6/12/2013 City of New York Department of Citywide Administrative Services Notices of violations under Workplace Violence Prevention Act (WPVA) and regulations were upheld and the Board found that: (1) the Department of Labor had the authority to conduct inspections without an employee referral; (2) inspections under WVPA may be conducted under PESHA; (3) the regulations requiring a written policy evaluating risks of violence and the participation of employee representatives were reasonable.
PES10004 6/12/2013 City of New York Department of Parks and Recreation Notices of violations under Workplace Violence Prevention Act (WPVA) and regulations were upheld and the Board found that: (1) the Department of Labor had the authority to conduct inspections without an employee referral; (2) inspections under WVPA may be conducted under PESHA; (3) the regulations requiring a written policy evaluating risks of violence and the participation of employee representatives were reasonable.
PES10005 6/12/2013 City of New York Department of Health and Mental Hygiene Notices of violations under Workplace Violence Prevention Act (WPVA) and regulations were upheld and the Board found that: (1) the Department of Labor had the authority to conduct inspections without an employee referral; (2) inspections under WVPA may be conducted under PESHA; (3) the regulations requiring a written policy evaluating risks of violence and the participation of employee representatives were reasonable.
PES10016 6/12/2013 Fire Department of the City of New York Notices of violations under Workplace Violence Prevention Act (WPVA) and regulations were upheld and the Board found that: (1) the Department of Labor had the authority to conduct inspections without an employee referral; (2) inspections under WVPA may be conducted under PESHA; (3) the regulations requiring a written policy evaluating risks of violence and the participation of employee representatives were reasonable.
PES11007 6/12/2013 City University of New York Notices of violations under Workplace Violence Prevention Act (WPVA) and regulations were upheld and the Board found that: (1) the Department of Labor had the authority to conduct inspections without an employee referral; (2) inspections under WVPA may be conducted under PESHA; (3) the regulations requiring a written policy evaluating risks of violence and the participation of employee representatives were reasonable.
PES11008 6/12/2013 Stefanie A. Davis Determination that Complainant was not retaliated against was revoked where it was unreasonable for DOL to conclude, based on its investigation, that the employer had a legitimate reason for its adverse action against Complainant.
PES11021 3/20/2013 Michael DiPietro Petition for review of retaliation determination was dismissed where the Department of Labor voluntarily agreed to investigate further.
PES10002 2/6/2013 Jay Gusler Petitionerӳ claim of retaliation was dismissed where issue was thoroughly litigated in an arbitration relative to his discipline. Ref. Collins v New York City Transit Authority, 305 F3d 113 (2d Cir 2001).
PES11003 2/6/2013 Village of Tarrytown PESH determination that villageӳ violations were willful were upheld where village failed to take effective measures to prevent employees from entering permit-required confined spaces. Ref. 12 NYCRR 830.2(k); 29 CFR 1910.146.
PES11009 12/14/2012 Janice Razzano Determination that petitioner was not subject to retaliatory action was reversed and remanded where business reason for reduction in petitionerӳ work hours needed further investigation.
PES09012 7/16/2012 Jay Gusler Commissioner determination that verbal dispute at work did not give rise to general duty clause violation was affirmed.
PES09001 5/30/2012 Robert Shapiro Commissioner determination that adverse employment action was not in retaliation for health and safety complaint was affirmed.
PES-10-017 5/30/2012 Engelke Farms, LLC Motion to dismiss petition for failure to state a cause of action was granted.
PES11010 3/29/2012 Paul Danko Petition to review determination that petitioner did not suffer a retaliatory termination was denied where protected activity occurred 10 years prior and evidence of other misconduct supported termination so that the Department of Labor's determination was not unreasonable or invalid.
PES11005 1/30/2012 Molly Hastings Petition denied where petitioner failed to establish termination was retaliatory in violation of PESHA
PES11015 12/14/2011 Review of Modification of Abatement Date Granted to the City of New York Fire Department Modification of Abatement Date by PESH upheld where no response to notice was filed. Ref. 12 NYCRR 804.7
PES10009 10/11/2011 Adam Crown Resignation from volunteer Fire Department under threat of discipline and criminal charges was adverse action in retaliation for voicing health and safety concerns. Ref: Labor Law 27-a (6) (c)
PES10019 7/26/2011 City of New York Administration for Children's Services Motion to dismiss untimely Petition was granted.
PES11006 7/26/2011 Bullville Fire District Petition for modification of abatement date pursuant to 12 NYCRR 804.7 was dismissed by Board where there were no responses filed.
PES 10003i/SA 10008 6/7/2011 City of New York Department of Citywide Administrative Services Interim Decision: Petitioners administrative agencies of New York City sought to stay enforcement of PESH orders relating to violation of Workplace Violence Prevention Act regulations. Board denied stay where Petitioners failed to show that stay was necessary or that it would not unduly prejudice Petitioner's employees. Ref. Labor Law 27-b; Board Rule of Procedure and Practice 66.9(a).
PES 10004i/SA 10004 6/7/2011 City of New York Department of Parks and Recreation Interim Decision: Petitioners administrative agencies of New York City sought to stay enforcement of PESH orders relating to violation of Workplace Violence Prevention Act regulations. Board denied stay where Petitioners failed to show that stay was necessary or that it would not unduly prejudice Petitioner's employees. Ref. Labor Law 27-b; Board Rule of Procedure and Practice 66.9(a).
PES 10005i/SA 10007 6/7/2011 ; City of New York Department of Health and Mental Hygiene Interim Decision: Petitioners administrative agencies of New York City sought to stay enforcement of PESH orders relating to violation of Workplace Violence Prevention Act regulations. Board denied stay where Petitioners failed to show that stay was necessary or that it would not unduly prejudice Petitioner's employees. Ref. Labor Law 27-b; Board Rule of Procedure and Practice 66.9(a).
PES 10016i/SA 10-012 6/7/2011 Fire Department of the City of New York; District Council 37, AFSCME, Municipal Labor Committee, Intervenors. Interim Decision: Petitioners administrative agencies of New York City sought to stay enforcement of PESH orders relating to violation of Workplace Violence Prevention Act regulations. Board denied stay where Petitioners failed to show that stay was necessary or that it would not unduly prejudice Petitioner's employees. Ref. Labor Law 27-b; Board Rule of Procedure and Practice 66.9(a).
PES09004 4/27/2011 Board of Education of the City of Buffalo (Buffalo Public Schools) "Aff'd by Board of Education v Board of Appeals, Sup Ct, Erie County, November 4, 2011, NeMoyer, J., Index No. 2011/2645, appeal pending" Notice of violations issued to Buffalo Public Schools for violating safety standards regarding industrial stairs were upheld.
PES08011 9/22/2010 City of New York Department of Juvenile Justice (Crossroads Juvenile Center, Horizon Juvenile Center, Bridges Juvenile Center) Citations under Bloodborne Pathogen Standard were reviewed and citations for failure to have knowledgeable trainers and failure to have an updated Exposure Control Plan were affirmed and citations for failure to offer medical follow-up free of charge as well as failure to train in certain areas were revoked.
PES08006 6/23/2010 Anthony LaPlaca Retaliation complaint remanded to Department of Labor for further investigation.
PES07012 PES07013 PES07014 4/21/2010 City of New York Department of Juvenile Justice - Crossroads Juvenile Center, Horizon Juvenile Center, Bridges Juvenile Center "Aff'd by City of New York v Industrial Board of Appeals, 31 Misc 3d 398 (Sup Ct New York County 2011), appeal pending" Citation for violation of the General Duty Clause affirmed where passage of the Workplace Violence Protection Act did not constitute promulgation of a specific standard.
PES09018 4/21/2010 Lake Mohegan Fire District Petition withdrawn where violations were successfully abated.
PES09002 3/24/2010 Paul Danko Case alleging retaliation for health and safety complaint was remanded for further investigation.
PES10001 3/24/2010 District Council 37, AFSCME Department of Labor decision to grant petition to modify abatement date to postpone abatement date 60 days affirmed.
PES07008 5/20/2009 Mateusz J. Nadolecki Determination affirmed. Petitioner failed to meet his burden to prove that a determination of the Commissioner to take no further action on his discrimination complaint under the Public Employee Safety and Health Act (PESHA) was unreasonable or invalid where the evidence demonstrated that the Department of Labor's investigation of the Petitioner's claim was reasonable. The Board's role was not to determine whether the Petitioner was discriminated against, but whether the Commissioner's determination that he was not discriminated against was reasonable. That the record contained some evidence which may give rise to another conclusion is not sufficient to find that the determination was unreasonable. Refs: Labor Law 27-a (10) (a); Matter of Brian Colella, Docket No. PES 04-004 (August 22, 2007); McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1972); Price Waterhouse v. Hopkins, 490 U.S. 228 (1989); Dept of Correctional Services v. Division of Human Rights, 238 AD2d 704 (3d Dept. 1997).
PES08003i 3/25/2009 July 4 Ever Inc. and Vincent Esposito Determination's finding that fireworks within a box truck were not in transit, but were improperly stored is sustained; findings that Petitioners misrepresented on explosives license renewals that they did not have employees and on permits for display fireworks that they had certain insurance were vacated as not supported by substantial evidence or law. Order modified by substituting the penalty of suspension for the penalty of revocation of explosives license and explosives magazine certificates. Revocation was determined to be unreasonably harsh.
PES07011 1/28/2009 Mateus Nadolecki Withdrawal of Petition approved.
PES06004 12/17/2008 NYC Department of Transportation (5 Dubois Avenue, Staten Island, NY) PESH Citations for failure to comply with Part VI of the Manual on Uniform Traffic Control Devices (MUTCD) during road repair were revoked where DOL failed to specify with particularity the standards it alleged were violated. Citations may only be issued for violations of MUTCD Standards and not Guidance Statements. Ref; Labor Law 27-a (6) (a).
PES07004 10/22/2008 New York State Thruway Authority/New York State Canal Corp. INTERIM: Petitioner's motion to set aside Commissioner's Order on the grounds that Petitioner was denied the opportunity for a Board hearing within a reasonable time denied where Petitioner failed to establish substantial prejudice where delay in responding to subpoenas and discovery demands and confusion as to notice of violations was correctable. Commissioner ordered to produce further documents, responses and privilege logs in response to Petitioner's discovery demands. In camera inspection of privileged documents ordered. Petitioner given right to renew its objection that it had inadequate notice of certain violations that Petitioner asserts were unrelated to the standard for which it obtained a variance and the conditions imposed by the variance. Board orders striking of multiple violations issued for the same hazardous condition.
PES08003 (SA08002) 9/24/2008 July 4 Ever, Inc. and Vincent Esposito INTERIM: Petitioner's Stay Application denied.
PES07010 5/28/2008 Corrie Berman Petition dismissed where Petitioner failed to respond to Board inquiry concerning its withdrawal of complaint.
PES07-012 3/26/2008 The New York City Department of Juvenile Justice Crossroads Juvenile Center; The New York Department of Juvenile Justice Horizon Juvenile Center; The New York City Department of Juvenile Justice Bridges Juvenile Center INTERIM: PES 07-012 (Crossroads Juvenile Center), PES 07-013 (Horizon Juvenile Center), and PES 07-014 (Bridges Juvenile Center) consolidated for hearing because the issues of fact and law are the same; and application for intervention of affected employees' collective bargaining representative granted. Refs: Board Rule 66.9; Board Rule 65.7; Board Rule 65.44.
PES07009 2/19/2008 July 4 Ever, Inc. and Vincent Esposito The Commissioner's order revoking the Petitioner's explosive dealer license and storage certificates based on the seizure of improperly stored Class C fireworks was invalid and unreasonable where Commissioner failed to prove seized fireworks were explosives. Refs., Tripoli Rocketry Assn, Inc. v. Bureau of Alcohol, Tobacco, Firearms and Explosives, 437 F3d 75, 77 [DC Cir. 2006].
PES05004 8/22/2007 Brian Colella A temporary public employee cannot be discharged in retaliation for filing a health and safety report.