Section 11(c) of the Occupational Safety and Health Act protects employees from reprisals for exercising their rights under the Act, including their right to complain about unsafe or unhealthy working conditions.
It provides in general that no person shall discharge or in any manner discriminate against any employee because the employee has: (a) Filed any complaint under or related to the Act; (b) Instituted or caused to be instituted any proceeding under or related to the Act; (c) Testified or is about to testify in any proceeding under the Act or related to the Act; or (d) Exercised on his own behalf or on behalf of others any right afforded by the Act.
An employee who believes that he has been discriminated against in violation of section 11(c) of the Act may, within 30 days after such violation occurs, lodge a complaint with the Secretary of Labor alleging such violation. The Secretary shall then cause appropriate investigation to be made. If, as a result of such investigation, the Secretary determines that the provisions of section 11(c) have been violated, a civil action may be instituted in any appropriate United States district court, to restrain violations of section 11(c)(1) and to obtain other appropriate relief, including rehiring or reinstatement of the employee to his former position with back pay.
The Secretary of Labor has published regulations implementing these provision at 29 C.F.R., Part 1977, available here.
A claim of unlawful discrimination under OSHA’s Section 11(c) has much in common with retaliation claims under Title VII of the Civil Rights Act. A plaintiff alleging a retaliation claim under Title VII must begin by establishing a prima facie case: The plaintiff must show that 1) he engaged in statutorily protected activity; 2) an adverse employment action occurred; and 3) the adverse action was causally related to the plaintiff’s protected activity. See Little v. United Technologies, 103 Fed. 3rd, 956, 959 (11th Circuit 1977).
An informal complaint to the employer is protected activity as long as the plaintiff can show that he in good faith believed that his employer was engaged in an unlawful employment practice and that his belief was objectively reasonable. The plaintiff need not prove the underlying discriminatory conduct that he opposed was actually unlawful.
The causal relation element of a prima facie case of retaliation is easily established; the employee need only show that his protected activity and the adverse action are not “completely unrelated,” Wideman v. Walmart Stores, 141 Fed. 3rd, 1453 (11th Circuit 1998).
Courts in the 11th Circuit have applied these same principles to cases alleging retaliation under the OSHA statute. A case in point is Chao v. Blue Bird Corp., 2009 US District Lexus 15050, a decision of the U.S. District Court for the Middle District of Georgia. It involved an informal, internal safety complaint. A worker in Blue Bird’s tool and die department who was instructed to hang some large Christmas wreaths in the front exterior of the building using a bucket lift expressed concerns to management regarding the proper procedure for doing so. He told his manager that he did not know how to operate the lift and that he felt the operation would be dangerous.
His boss instructed the plaintiff to tell it to his supervisor which he did. The supervisor told the plaintiff not to worry about it, that he would get someone else to do the job. The employer, however, fired the Plaintiff that afternoon.
The paper work concerning the Plaintiff’s official termination said that he was fired for “insubordination.” The Secretary of Labor brought a civil action against Blue Bird, claiming that the termination violated §11(c). The court agreed.
The district court first held that to establish the prima facie case the Secretary must show essentially the same elements discussed above: that the employee had engaged in protected activity, that Blue Bird took adverse action against him and that there was a casual connection.
The court held that the worker who was terminated engaged in protected activity when he in good faith complained to his employer about his safety concerns. Section 11(c) provides that an employer may not discharge an employee because such employee has filed any complaint under or related to the Act. The Secretary’s OSHA regulations at 29 CFR Section 1977.9(b) state that “the salutory principles of the Act would be seriously undermined if employees were discouraged from lodging complaints about occupational safety and health matters with their employers. Such complaints to employers, if made in good faith, therefore would be related to the act, and an employee would be protected against discharge or discrimination caused by a complaint to the employer.
Moreover, the Court held, the Act protects an employee’s refusal to undertake a particular activity when he in good faith refuses to perform the job rather than to subject himself to a serious injury. An employee is protected from discrimination upon a good faith refusal to expose himself to conditions the employee reasonably believes would expose him to death or serious injury. The Court cited 29 CFR Section 1977.12(b)(2).
Having found that the plaintiff made out a prima facie case the court further held that Blue Birds proffered reasons for discharging the Plaintiff were merely pretext for discrimination. For one thing in logging his termination as being based on insubordination the employer had changed the stated reason for the employment decision and this would support a finding of pretext.
In addition the employer did not undertake a investigation of the allegations of the employee’s safety complaint that was either thorough or complete. The district court’s judgment in favor of the Plaintiff and against the Defendant was subsequently affirmed by the 11th Circuit Court of Appeals under the name Solis v. Blue Bird Corp., 2010 U.S. App. Lexis 25278 11th Circuit, Dec. 8, 2010.
Following Solis, the U.S. District Court for the Southern District of Alabama ruled in favor of an employee who complained to her employer that exposure to a chemical pollutant in the plant was causing her to experience asthma attacks. In a suit brought by the U. S. Secretary of Labor the court held that the employer unlawfully retaliated against the employee because of her complaints and entered a preliminary injunction prohibiting further retaliation. Perez v. Lear Corp. Eeds & Interiors & Renosol Seating, LLC, No. 15-0205-CG-M, 2015 U.S. Dist. LEXIS 59835 (S.D. Ala. May 7, 2015).
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