Donovan v. RD Andersen Const. Co., Inc., 82-4050.

• Decision Date: 01 October 1982
• Docket Number: No. 82-4050.,82-4050.
• Citation: 552 F. Supp. 249
• Parties: Raymond J. DONOVAN, Secretary of Labor, United States Department of Labor, Plaintiff, v. R.D. ANDERSEN CONSTRUCTION COMPANY, INC., Defendant.
• Court: U.S. District Court — District of Kansas

552 F. Supp. 249

Raymond J. DONOVAN, Secretary of Labor, United States Department of Labor, Plaintiff, v. R.D. ANDERSEN CONSTRUCTION COMPANY, INC., Defendant.

No. 82-4050.

United States District Court, D. Kansas.

October 1, 1982.

T. Timothy Ryan, Jr., Sol. of Labor, Tedrick A. Housh, Jr., Regional Sol., Keithley F.T. Lake, Atty., U.S. Dept. of Labor, Stephen G. Reynolds, U.S. Dept. of Labor, Kansas City, Mo., for plaintiff.

Stewart L. Entz, Colmery, McClure, Funk, Letourneau & Entz, Topeka, Kan., for defendant.

MEMORANDUM AND ORDER

ROGERS, District Judge.

This is an action brought by the Secretary of Labor against the defendant, R.D. Andersen Construction Company, Inc., pursuant to Section 11(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 660(c). This matter is presently before the court upon defendant's motion to dismiss. The court has heard oral argument and is now prepared to rule.

The facts in this case as alleged by the plaintiff are as follows. Defendant is a general contractor engaged in construction. On or about April 1, 1981, defendant was engaged in the renovation of Marvin Hall, a dormitory on the campus of the University of Kansas. At some point during the construction, the Lawrence Journal World newspaper received reports that asbestos dust was being blown into the atmosphere from uncovered trucks leaving the workplace. On April 8, 1981, a reporter from the newspaper visited the jobsite to investigate these reports. The reporter talked to Ronald Fent, an employee of the defendant, about the existence of asbestos dust on the premises. Fent agreed to allow the reporter to use his name as a source for the reporter's article. Thereafter, on April 9, 1981, the reporter's article was published in the Lawrence newspaper. Fent was quoted in the story, but his name appeared as Ray Fent. On April 10, 1981, Fent was summoned by the defendant's site superintendent and questioned about the news article. Fent admitted that he was indeed the source quoted and thereafter he was discharged from employment by the superintendent. Subsequently, on April 20, 1981, Fent filed a complaint with the Occupational Safety and Health Administration, wherein he alleged that his discharge by the defendant was a direct result of his conversation with the newspaper reporter concerning asbestos dust at the jobsite. On March 12, 1982, the Secretary of Labor filed this action alleging that the defendant's action in terminating Ronald Fent violated section 11(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 660(c). The Secretary seeks injunctive relief against future violations of section 11(c) and other relief, including backpay for Fent.

In the instant motion to dismiss, defendant contends that the plaintiff's complaint fails to state a claim upon which relief can be granted under section 11(c) and the regulations promulgated thereunder by the Secretary of Labor, 29 C.F.R. § 1977.1 et seq. In considering the sufficiency of a complaint in the context of a motion to dismiss, the court must treat all of the well-pleaded allegations of the complaint as true. Miree v. DeKalb County, Georgia, 433 U.S. 25, 27 n. 2, 97 S.Ct. 2490, 2492 n. 2, 53 L.Ed.2d 557 (1977). Furthermore, a complaint should never be dismissed for insufficiency unless it appears to a certainty that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 22 L.Ed.2d 80 (1957).

The court begins by examining the statutory and regulatory authority under which this action is brought. The primary purpose of the Occupational Safety and Health Act is to assure safe and healthful working conditions for workers. Marshall v. Intermountain Electric Co., Inc., 614 F.2d 260, 262 (10th Cir.1980); 29 U.S.C. § 651. Section 11(c) of the Act is designed to further that public policy. It provides in pertinent part as follows:

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.

The primary purpose of section 11(c) is to ensure that violations of the Act are reported. Marshall v. Intermountain Electric Co., Inc., supra.

The Secretary has promulgated interpretive regulations which further explain the mandates of section 11(c). The regulations pertinent to the instant case provide as follows:

§ 1977.9 Complaints under or related to the Act.

(a) Discharge of, or discrimination against, an employee because the employee has filed "any complaint * * * under or related to this Act * * *" is prohibited by section 11(c). An example of a complaint made "under" the Act would be an employee request for inspection pursuant to section 8(f). However, this would not be the only type of complaint protected by section 11(c). The range of complaints "related to" the Act is commensurate with the broad remedial purposes of this legislation and the sweeping scope of its application, which entails the full extent of the commerce power. (See Cong.Rec., vol. 116, p. P.42206, Dec. 17, 1970).

(b) Complaints registered with other Federal agencies which have the authority to regulate or investigate occupational safety and health conditions are complaints "related to" this Act. Likewise, complaints made to State or local agencies regarding occupational safety and health conditions would be "related to" the Act. Such complaints, however, must relate to conditions at the workplace, as distinguished from complaints touching only upon general public safety and health.

(c) Further, the salutary principles of the Act would be seriously undermined if employees were discouraged from lodging complaints about occupational safety and health matters with their employers. (Section 2(1), (2), and (3)). 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. § 1977.10 Proceedings under or related to the Act.

(a) Discharge of, or discrimination against, any employee because the employee has "instituted or caused to be instituted any proceeding under or related to this Act" is also prohibited by section 11(c). Examples of proceedings which could arise specifically under the Act would be inspections of worksites under section 8 of the Act, employee contest of abatement date under section 10(c) of the Act, employee initiation of proceedings for promulgation

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