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Whistleblower?s complaint alleging unlawful retaliation ruled untimely

Whistleblower?s complaint alleging unlawful retaliation ruled untimely
Cante v New York City Department of Education, U.S. Department of Labor Administrative Review Board Case NO. 08-012

Richard Cante filed a complaint with the U.S. Department of Labor?s Occupational Safety and Health Administration (OSHA) alleging that his employer, New York City Department of Education (NYCDOE), demoted him after he complained about his supervisor illegally removing asbestos from a work site. Cante claims that this action violated the employee protection provisions of the environmental statutes.

However, each of the statutes cited by Cante had a 30-day limitations period.

The Administrative Law Judge ruled that Cante?s complaint was filed more than 30 days after he had notice of the demotion decision and more than 30 days after the actual demotion.

The ALJ rejected Cante?s argument that since he received paychecks within 30 days before he filed his whistleblower complaint with OSHA, and the paychecks were issued with discriminatory animus, they were separate actionable events, and thus his complaint was timely.

On appeal, the Administrative Review Board affirmed the ALJ?s ruling, finding that, as a matter of law, the lower paychecks received less than 30 days before the filing of the complaint were not separate discrete discriminatory acts that triggered a new limitations period.

The decision is posted on the Internet at:
http://www.oalj.dol.gov/PUBLIC/ARB/DECISIONS/ARB_DECISIONS/CAA/08_012.CAAP.PDF

Full post as published by New York Public Personnel Law on August 10, 2009 (boomark / email).