Sues DOE, Union
Custodian: Demoted For Asbestos Claim

By MEREDITH KOLODNER

A school custodian who blew the whistle about exposed asbestos is suing the city for at least $900,000 to recoup legal fees and personal losses, claiming the Department of Education illegally punished him for speaking out.

The Chief-Leader/Michael O'Kane A THREATENED WHISTLEBLOWER: School custodian Richard Cante refused to remove asbestos tiles and reported his supervisor for moving them unsafely at P.S. 181 in Queens. He is suing the city and his supervisor for demoting him and threatening his health coverage, even though the state Department of Labor confirmed the existence of the deadly substance. "They retaliated against me," he said. "It didn't have to go like this."

His allegations have been given credibility by State Department of Labor findings that his supervisor removed the asbestos in an illegal and unsafe manor.

Richard Cante, a 13-year veteran of the school system, believes he was retaliated against by his supervisor after he refused to remove broken asbestos tiles and then reported that his supervisor removed them improperly at P.S. 181 in Queens. Mr. Cante alleges that the city failed to protect him when he was demoted and threatened with having to switch health plans, putting at risk the health of his seriously ill wife. Extensive legal fees, lost vacation and personal days and the trauma of the months-long series of events led him to file the law suit, he said.

'DOE Retaliated'

"They retaliated against me," said Mr. Cante in an Aug. 28 phone interview. "They tried to take my pension, and my health care and they knew that my wife is very sick."

Mr. Cante, 62, began working for the school system after having put in 25 years as an airplane mechanic at Pan Am Airlines. When the company went bankrupt, he lost his job plus almost three-quarters of his pension. He said he got a job as a custodian mostly for the secure health benefits, since his wife was chronically ill and depended upon his coverage. He also hoped to replenish his pension.

On April 26, 2006, Mr. Cante's supervisor, Robert Baker, ordered him to remove asbestos tiles from a classroom in P.S. 181. City rules prohibit custodians from removing the tiles without proper training and a certificate, which neither Mr. Cante nor Mr. Baker possess. The regulations also direct custodians to prevent people from going near the dangerous material and to notify the Department of Education so the tiles can be safely abated. Instead, Mr. Baker removed the tiles himself and then sent a class of about 35 children back into the room.

Hazardous for Kids

If asbestos is properly contained, it does not pose a danger. But if it becomes airborne, it can cause fatal lung disease and cancer. It is especially dangerous for children.

On Apr. 27, Mr. Cante filed a grievance with his union, Service Employees International Union Local 74. A hearing on May 5 failed to resolve the problem. The next week Mr. Cante contacted DOE's Health and Safety Division to voice his concerns and a representative came to the school to discuss asbestos removal.

"If my children were in this school," said Mr. Cante, "I would have been jumping up and down about this, so I had to say something."

He said in addition to receiving asbestos awareness training, his family history made him sensitive to the dangers of noxious substances. Both his parents died of industrial cancers. His father was a house-painter and was made ill by lead paint. His mother was a seamstress and was exposed to toxic textiles. He himself is a survivor of colon cancer.

Wanted Order in Writing

On May 10, Mr. Baker ordered Mr. Cante to remove more asbestos tiles, but when he asked his supervisor to put the request in writing, Mr. Baker refused and instead issued an Employee Warning Notice that he had failed to complete his duties. It was the first warning Mr. Cante received in 13 years of employment.

On June 15, Mr. Cante received a letter from Mr. Baker stating that he would be terminated from his position as Fireman (the official name for his custodian position) unless he switched membership from Local 74 to Local 94, which is an affiliate of Mr. Baker's union, Local 891 of the International Union of Operating Engineers. Mr. Baker said that Ray Macco of Local 94 had filed a grievance against him for employing Mr. Cante and that the contract dictated that Firemen in a school of P.S. 181's size should be in Local 94.

The contract language appears to allow Firemen to choose between Locals 74 and 94, but one material impact of switching would have been a change in health plans, with inferior drug coverage. Mr. Cante's wife suffered a stroke in 1999 and is disabled. She must take 13 medications daily, and because she cannot work, she is dependent on her husband's health coverage. The change also would have meant that Mr. Cante's pension, which is currently vested, would have taken five more years before it was fully vested.

'Baker Knew the Impact'

"I had to take personal time to take her to the hospital, and I had to tell Baker where I was going," said Mr. Cante. "They knew what this would do to us."

Mr. Macco refused to answer questions about whether he filed the grievance and referred questions to his lawyer, Joe Farelli. Mr. Farelli said he couldn't comment because his client had been subpoenaed for the trial. Local 94 is not named as a defendant in the suit.

Mr. Baker, who is a defendant, said he had no comment. Robert Troeller, president of union Local 891 and another defendant, did not return calls seeking comment.

When Mr. Cante refused to switch unions, Mr. Baker demoted him to Cleaner at a lower salary, although he continued to perform all the duties of a Fireman. Mr. Baker retained a lawyer, Michael Rakower, and filed complaints with the state Department of Labor and the National Labor Relations Board. They began meeting with Local 94's lawyers in an effort to get Mr. Cante's job back.

Restored to Post

In late September, Mr. Cante was restored to his position as Fireman. On Nov. 3, 2006, the DOL issued two violations against the DOE, citing Mr. Baker's unlicensed and illegal removal of the asbestos tiles. On Nov. 15, officials from Mr. Cante's union signed an agreement with Local 94 that granted Mr. Cante back-pay for the period he was demoted, secured his position as Fireman, and ordered the halt of "onerous working conditions" for Mr. Cante.

In December, the DOL issued a citation against Mr. Baker for not answering Mr. Cante's questions about the presence of friable asbestos in P.S. 181. And in March 2007, the state issued another citation against the DOE for failing to provide annual asbestos training to P.S. 181 custodial workers as required by law. The department gave the city until May 31 to correct the situation, after which fines can be imposed. No training has yet occurred. In response to a request for comment, DOE spokeswoman Margie Feinberg would only say, "We have received the legal papers and are evaluating the case. The school, 181Q, is safe and we are monitoring the situation."

Other Incidents

This past spring, a Teacher's Assistant at P.S. 181 tripped over some broken asbestos tiles and had to be taken to the hospital. In late May, a child who was sitting on the toilet in one of the bathrooms had broken tiles fall on his head. Although DOE officials responded to both incidents, the problems occurred more than a year after Mr. Cante first lodged a complaint.

The custodian believes that his lawyer is the only reason he has not been fired and that the hazardous conditions would still exist if he had kept quiet. He is hoping the lawsuit will help him to recover financially and ensure that he does not lose his job before he retires. The stress on his family and on his wife's health when they feared he would lose his job threatened to overwhelm him at times, and he said he worries that others grew intimidated by watching how he was treated.

'They Saw What Happened'

"This without a doubt has stopped other people from putting in claims," he said, "because they saw what happened to me."

Mr. Cante said he never expected the situation to develop as it did. He believed after he filed the original grievance in April 2006 that Mr. Baker would be told to follow proper procedure. He said the lawsuit was a way of finally putting the matter to rest. "I didn't want all of this," he said. "All they had to say was they weren't going to do this any more, and it would have been over."