Whistle-blower wins case against Manatee School for the Arts

OSHA wins in case against Manatee School for the Arts

eearl@bradenton.comOctober 22, 2013 

MANATEE -- The U.S. District Court in Tampa has awarded a former Manatee School for the Arts employee $175,000 in back wages and punitive damages in a whistle-blower lawsuit.

The U.S. Department of Labor's Occupational Safety and Health Administration sued the school in 2012 for wrongful termination of David Shack, an employee who warned the school about electrical safety violations in the school's theater.

Shack, hired as a stage craft assistant in 2007 making $15 per hour, had addressed potential fire hazards in the school's theater. His primary concern was improper placement of extension cords above the theater sprinkler system.

When the school did not respond to a letter of concern Shack sent in June 2009, he filed a complaint with the Manatee County School Board and OSHA in July 2009. He was terminated July 30, 2009.

The school board forwarded the complaint to then-Superintendent Tim McGonegal. OSHA sent a facsimile to the school addressing concerns Shack raised in his letter. On Aug. 4, 2009, OSHA performed a safety inspection and cited the same electrical safety issues the employee noted.

The Manatee School for the Arts entered into a settlement agreement with OSHA for $2,000, records show.

Shack was awarded $55,000 in back wages and $120,000 in punitive damages -- $100,000 from Principal C.W. "Bill" Jones and $20,000 from Manatee School for the Arts, a charter school, after a trial last month.

Bill Curphey, Jones' attorney and a former prosecutor for OSHA, said Tuesday the case isn't over. The Manatee School for the Arts filed a motion to set aside

the verdict Monday.

Curphey said he is "disturbed" OSHA is asking for punitive damages.

"I am outraged," Curphey said. "This is overreaching from the government."

Curphey contends Shack's termination was not related to his complaints filed to OSHA.

"His position was eliminated in favor of a faculty member," Curphey said. "He was a theater aide."

Curphey said Jones wanted to keep Shack as an employee, but the money was not in the budget for both a stage craft assistant and a stage craft teacher.

OSHA said Shack's decision to report concerns are protected by the whistle-blower protection provisions of the Occupational Safety and Health Act, which protects employees who report violations involving trucking, pipeline, environmental, health care and food safety laws.

The jury found the school and Jones violated Section 11 (c) of the Occupational Safety and Health Act dealing with whistle-blower provisions. The jury also found Jones and the school acted in "reckless indifference" to the Occupational Safety and Health Act.

Jones declined comment.

Shack said before he filed his complaints with OSHA, his working relationship with the Manatee School for the Arts had been positive. According to Section 11 (c) of the Occupational Safety and Health Act, Shack said, he should have been able to perform his duties and report his concerns without fear of retaliation.

"You always hear people ask 'Why didn't you say or do something?' when something is found," Shack said. "In this case, I did do something. I wasn't satisfied with the way it was handled by the board, so I sent it to OSHA and OSHA supported my concerns with three serious violations."

After he was fired, Shack said, he "let the complaint take its course." He declined to discuss any other employment.

Shack said he is satisfied with his settlement.

"It is fair and reasonable," Shack said. "It has been a rough four years."

Shack said he will continue to support the Manatee School for the Art's mission.

"It provides a unique environment for students. I have always believed that and still believe that," Shack said. "I still support the school and the service they provide. I am just personally glad this chapter is over."

Erica Earl, education reporter, can be reached at 941-745-7081.

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