Taylor v. Brighton Corp., 77-3590

Citation616 F.2d 256
Decision Date14 February 1980
Docket NumberNo. 77-3590,77-3590
Parties8 O.S.H. Cas.(BNA) 1010, 1980 O.S.H.D. (CCH) P 24,246 Walter M. TAYLOR et al., Plaintiffs-Appellants, v. BRIGHTON CORPORATION et al., Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Robert F. Laufman, Allen Brown, Cincinnati, Ohio, for plaintiffs-appellants.

James K. L. Lawrence, Frost & Jacobs, Cincinnati, Ohio, for Brighton & P. & A. Hock.

David W. Peck, Frederick Brockmeier, Cincinnati, Ohio, for Pinkerton, Simpkins, Regenhold.

Diane E. Burkley, Dept. of Labor, Washington, D. C., for amicus curiae Secretary of Labor.

Before ENGEL and KEITH, Circuit Judges, and PHILLIPS, Senior Circuit Judge.

PHILLIPS, Senior Circuit Judge.

The principal question raised on this appeal is whether the Occupational Safety and Health Act, 29 U.S.C. §§ 651-678, creates an implied private right of action whereby an employee discharged in retaliation for reporting safety violations to OSHA may maintain a suit against his former employer. We affirm the district court's decision that it does not.

I.

The plaintiffs-appellants are former employees of Brighton Corporation who allege they were discharged in retaliation for reporting safety violations to the Occupational Safety and Health Administration (OSHA) 1 or for opposing the company's retaliatory and discriminatory treatment of such employees.

Section 11(c) of the Occupational Safety and Health Act, 29 U.S.C. § 660(c), prohibits retaliatory discharge of or discrimination against employees who report OSHA violations, and charges the Secretary of Labor to investigate and prosecute meritorious claims of retaliation:

Discharge or discrimination against employee for exercise of

rights under this chapter; prohibition; procedure for relief

(c)(1) No person shall discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter or has testified or is about to testify in any such proceeding or because of the exercise by such employee on behalf of himself or others of any right afforded by this chapter.

(2) Any employee who believes that he has been discharged or otherwise discriminated against by any person in violation of this subsection may, within thirty days after such violation occurs, file a complaint with the Secretary alleging such discrimination. Upon receipt of such complaint, the Secretary shall cause such investigation to be made as he deems appropriate. If upon such investigation, the Secretary determines that the provisions of this subsection have been violated, he shall bring an action in any appropriate United States district court against such person. In any such action the United States district courts shall have jurisdiction, for cause shown to restrain violations of paragraph (1) of this subsection and order all appropriate relief including rehiring or reinstatement of the employee to his former position with back pay.

(3) Within 90 days of the receipt of a complaint filed under this subsection the Secretary shall notify the complainant of his determination under paragraph (2) of this subsection. (Emphasis added.)

Pub.L.No. 91-596, § 11, 84 Stat. 1602, Dec. 29, 1970.

On June 27, 1975, the appellants complained to the Secretary of Labor that Brighton Corporation had discharged them in violation of § 11(c)(1). 2 In October 1976, the Secretary notified appellants Herring and Taylor that he intended not to file suit on their complaints. While appellant Hinners' case was still open at that time, the Secretary had taken no action on his complaint. 3

On February 7, 1977, the appellants filed this suit in the district court for the Southern District of Ohio. Claims 1, 2 and 4 of their complaint allege that Brighton discharged them in violation of § 11(c). Claim 3 charges racial discrimination by Brighton. 4 Claims 5 and 6 are civil rights claims filed under 42 U.S.C. § 1985(3) alleging that the defendants conspired among themselves to deprive appellant Herring (claim 5) and all the appellants (claim 6) of the equal protection of the laws and of equal privileges and immunities under the laws. The appellees moved to dismiss.

On September 19, 1977, District Judge Timothy S. Hogan dismissed claims 1, 2, 4, 5, and 6 of the complaint for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted. 5 With respect to claims 1, 2, and 4 of the complaint, Judge Hogan held that OSHA does not grant employees a private right of action to redress retaliatory dismissals that violate § 11(c). The court dismissed claims 5 and 6 on the ground that the appellants had not made the requisite § 1985(3) showing that the alleged discrimination was based on their membership in a definable class.

This appeal followed. We affirm the district court's order of dismissal. Part II of this opinion holds that there is no implied private right of action under OSHA § 11(c). Part III holds that under the averments of the complaint appellants have not shown the requisite class based animus essential to a § 1985(3) claim.

II.

In addressing the difficult question whether § 11(c) implies a private right of action, we are guided by the discussion of the Supreme Court in Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2088, 45 L.Ed.2d 26 (1975):

In determining whether a private remedy is implicit in a statute not expressly providing one, several factors are relevant. First, is the plaintiff "one of the class for whose especial benefit the statute was enacted," Texas & Pacific R. Co. v. Rigsby, 241 U.S. 33, 39 (36 S.Ct. 482, 484, 60 L.Ed. 874) (1916) (emphasis supplied) that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? See, e. g., National Railroad Passenger Corp. v. National Assn. of Railroad Passengers, 414 U.S. 453, 458, 460 (94 S.Ct. 690, 693, 694, 38 L.Ed.2d 646) (1974) (Amtrak ). Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? See, e. g., Amtrak, supra; Securities Investor Protection Corp. v. Barbour, 421 U.S. 412, 423 (95 S.Ct. 1733, 1740, 44 L.Ed.2d 263) (1975); Calhoon v. Harvey, 379 U.S. 134 (85 S.Ct. 292, 13 L.Ed.2d 190) (1964). And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law? See Wheeldin v. Wheeler, 373 U.S. 647, 652 (83 S.Ct. 1441, 1445, 10 L.Ed.2d 605) (1963); cf. J. I. Case Co. v. Borak, 377 U.S. 426, 434 (84 S.Ct. 1555, 1560, 12 L.Ed.2d 423) (1964); Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 394-395 (91 S.Ct. 1999, 2003-2004, 29 L.Ed.2d 619) (1971); id., at 400 (91 S.Ct. at 2006) (Harlan, J., concurring in judgment).

The parties are in agreement that the appellants are members of the class of persons, employees who report OSHA violations, whom § 11(c) was intended to benefit. Nor is there any argument that retaliatory-discharge actions have traditionally been relegated to state law; the cause of action, if one exists, is solely federal. The questions we must address under Cort v. Ash are whether there is any indication in the legislative history of OSHA that Congress intended either to create or to deny a private remedy and whether implying one is consistent with the legislative plan.

All the Cort v. Ash factors, and particularly those concerning the legislative history of the statute and a private remedy's consistency with the legislative scheme, are signposts that guide the court's larger inquiry: Did Congress intend to create a private right of action in this situation? See Transamerica Mortgage Advisors, Inc. v. Lewis, --- U.S. ----, ----, 100 S.Ct. 242, 245, 62 L.Ed.2d 146 (1979) (hereinafter cited as TAMA v. Lewis ). Congress created the statutory right not to be discharged in retaliation for filing OSHA complaints, and Congress could limit that right's corresponding remedy as it saw fit. Moreover, as the Supreme Court's recent cases make clear, "the fact that a federal statute has been violated and some person harmed does not automatically give rise to a private cause of action in favor of that person." Cannon v. University of Chicago, 441 U.S. 677, 688, 99 S.Ct. 1946, 1953, 60 L.Ed.2d 560 (1979). "The central inquiry remains whether Congress intended to create, either expressly or by implication, a private cause of action." Touche Ross & Co. v. Redington, 442 U.S. 560, 575, 99 S.Ct. 2479, 2489, 61 L.Ed.2d 82 (1979). With that caveat in mind, we turn to the issue presented in the case at bar.

Since the problem is basically one of statutory construction, we begin with the language of the statute itself. See TAMA v. Lewis, supra, --- U.S. at ----, 100 S.Ct. at 245; Touche Ross & Co. v. Redington, supra, 442 U.S. at 568, 99 S.Ct. at 2485; Cannon v. University of Chicago, supra, 441 U.S. at 689, 99 S.Ct. at 1953. Section 11(c)(2) specifies that an employee who believes that he has been the victim of discrimination as a result of his OSHA-related activity may file a complaint with the Secretary of Labor. The Secretary is to make such investigation as "he deems appropriate" to determine preliminarily whether the employee's complaint is valid. If he finds merit in the complaint, "the Secretary . . . shall bring an action" in the district court to obtain all appropriate relief. (emphasis supplied). Section 11(c)(3) directs the Secretary to notify the employee within 90 days whether he deems the complaint justified.

Two points are evident from the statutory language. First, Congress nowhere mentioned private suits to enforce § 11(c). Second, Congress explicitly provided an alternative means of redressing § 11...

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