DEP Found Liable
$125G Award Made To Fired Laborer

By GINGER ADAMS OTIS

A Construction Laborer with the Department of Environmental Protection who was wrongfully fired in 2003 and reinstated with more than $100,000 in back pay and differentials two years later has had the State Supreme Court ruling upheld on appeal.

THOMAS KATTOU: 'Pure retaliation.'

An Appellate Division panel concurred that Construction Laborer Shelton Johnson was entitled to lost night differentials, overtime pay and weekend hours in addition to his basic wages. The total Mr. Johnson collected from his wrongful termination suit against the DEP was slightly more than $125,000, his attorney said.

'A Lot on Injustice'

Mr. Johnson said he was happy with the outcome of his lawsuit, but added that "there was a lot of injustice done in my case." He is still waiting for the results of an arbitration hearing to finalize where within the agency he will be working.

Although DEP reinstated him as ordered by Manhattan Supreme Court Justice Leland J. DeGrasse, who heard Mr. Johnson's initial case in 2004, the agency restored him to the title he held when hired as a provisional in 1993 - a laborer in the Brooklyn repair shop. At the time of his dismissal, Mr. Johnson had worked for six years in a different division that required far less physical labor. Now, at 46, he is back digging out hydrants, pumps, valves and ditches - work traditionally done by new hires when they're just starting on the job. An arbitrator is expected to issue a ruling shortly on the union's claim that his assignment constituted an improper labor practice.

GENE DeMARTINO: DEP out of control.

"It's retaliation, pure and simple," said Thomas Kattou, treasurer and grievance representative for Local 376 of District Council 37, which represents DEP Construction Laborers. "I'm glad justice has prevailed again as far as his wages. Our local will take this as far as it needs to go; the DEP has no regard for progressive discipline and they don't try to work with this union at all."

A spokesperson for the DEP did not return calls for comment. The agency can appeal the award for lost wages if it chooses.

Calls DEP Draconian

Gene DeMartino, president of Local 376, said relations between the union and the DEP had soured because of the agency's "excessive" use of discipline.

"They're wasting the city's money and taxpayer money, as well as the union's money, on cases that can be settled," he charged. "They are hell-bent on doing what they want to do and that's it. They don't think they should be accountable to anyone."

Mr. Johnson's initial termination, in early 2003, stemmed from the discovery of a fake DEP parking placard in his car's glove-compartment box during a routine traffic stop.

A shop in The Bronx that produced fake parking placards bearing the insignias of DEP and other city agencies had just a few weeks earlier been raided by the NYPD and shut down.

Denied Using It

Several DEP employees, among them many of Mr. Johnson's colleagues, had purchased fake placards. Mr. Johnson said he had not bought one, but that a colleague who did left it in the glove compartment of his car. Mr. Johnson denied ever using a placard to park illegally around the city.

Mr. Johnson wasn't driving the car when the placard was discovered; his wife was. When she opened the glove compartment for registration, the cop who pulled her over spotted the fake placard, and eventually Mr. Johnson was brought in for questioning.

The police fined him, and he thought that would be the end of it. DEP, however, then informed him that he had been terminated because of his criminal conviction. Agency officials claimed that he had violated Section 1116 of the City Charter by perpetrating "a fraud on the city."

Five other individuals in Mr. Johnson's title who were caught with the placards and fined by the police were suspended for two days without pay by DEP. Only Mr. Johnson was terminated, and the agency did it without holding a hearing, contacting the union, or following any of the provisions outlined in the union's collective-bargaining agreement.

'Entitled to a Hearing'

"They made a major mistake by doing that; he is a civil servant and entitled to a hearing," said Mr. Kattou. "We had our attorneys file an Article 78 immediately, and we were successful and we got his job back because the judge ruled that yes, he was in fact supposed to have a hearing."

Justice DeGrasse disagreed with the city's argument that Mr. Johnson's decision to pay the police fine for the placard constituted admission of guilt and fraud and ordered him reinstated with back pay.

As for why he was singled out for termination when his colleagues, charged with the same offense, received brief suspensions, Mr. Johnson believes he's being penalized for having filed a complaint against his supervisors in 2001.

"It was not long after 9/11, and we were doing a lot of extra work at that time, and there was a guy on the job who got upset with me over something I did and he pulled a knife on me," said Mr. Johnson. "I didn't like that, and I told my supervisors about it. I felt I needed some kind of protection from that guy - I didn't want to go back and work with him anymore."

Mr. Johnson said one supervisor told him to "find a way to work it out" or he would call the police and report both individuals. Mr. Johnson said he took his complaint to the next level.

"I wanted to follow the chain of command, so I went to the [Equal Employment Opportunity] office and filed a complaint," he said.

A Stacked Deck?

Unbeknownst to him, the EEO office took his signed complaint and showed it directly to the supervisors in his department, including the one named specifically in his complaint. Several of his supervisors also serve on the Disciplinary Council that decides penalties for workers who have been brought up on charges. They were on the committee that decided to fire him, Mr. Johnson said.

Mr. DeMartino said the DEP had a pattern of abusing its power to bring disciplinary charges against workers.

"I think this is the DEP being its typical anti-union self," he said. "The bottom line is Shelton had a clean record, and they fired him for a placard. They are just looking for ways to get penalties imposed."