Dunlop v. Hanover Shoe Farms, Inc., Civ. A. No. 75-1243.

• Decision Date: 13 May 1976
• Docket Number: Civ. A. No. 75-1243.
• Citation: 441 F. Supp. 385
• Parties: John T. DUNLOP, Secretary of Labor, U. S. Department of Labor, Plaintiff, v. HANOVER SHOE FARMS, INC., Defendant.
• Court: U.S. District Court — Middle District of Pennsylvania

441 F. Supp. 385

John T. DUNLOP, Secretary of Labor, U. S. Department of Labor, Plaintiff, v. HANOVER SHOE FARMS, INC., Defendant.

Civ. A. No. 75-1243.

United States District Court, M. D. Pennsylvania.

May 13, 1976.

Sidney Salkin, Dept. of Labor, Philadelphia, Pa., for plaintiff.

Leroy Euvrard, Jr., York, Pa., for defendant.

MEMORANDUM AND ORDER

NEALON, Chief Judge.

This is a suit by the Secretary of Labor (the Secretary) on behalf of a former employee of the defendant who claims he was discriminatorily discharged in retaliation for complaining about the health and sanitation conditions of his job with the defendant. The suit has been brought pursuant to section 11(c) of the Occupational Safety and Health Act of 1970 (the Act), 29 U.S.C. § 660(c), which authorizes the Secretary to "bring an action in any appropriate United States district court" against an employer who "discharges or in any manner discriminates 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." 29 U.S.C. § 660(c)(1) & (2). Presently before the court is defendant's motion to dismiss for lack of jurisdiction and for failure to state a claim upon which relief can be granted, and plaintiff's motion to strike defendant's demand for jury trial.

Bearing in mind that, in considering a motion to dismiss for failure to state a claim, the complaint is construed in the light most favorable to plaintiff and its allegations are taken as true, Jenkins v. McKeithen, 395 U.S. 411, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969), the following relevant facts appear. On July 3, 1974, while in the employ of defendant, Burdette A. Woodkirk filed a complaint with Legal Services, Inc. alleging that the defendant required him to work under conditions that were detrimental to his health and safety. As a result of that complaint, a staff member of Legal Services contacted the defendant and requested that the complained of working conditions be remedied. Thereafter, on July 8, 1974, the defendant discharged Mr. Woodkirk because he had filed the abovedescribed complaint with Legal Services. On July 31, 1974, Mr. Woodkirk filed a complaint with a representative of the Secretary alleging that he had been discharged in retaliation for having complained about the health and safety conditions of his job, and, subsequently, on October 10, 1975, the Secretary initiated the instant lawsuit.

The defendant makes essentially two arguments in support of its motion to dismiss for lack of jurisdiction. The first is based on the portion of section 11(c)(2) of the Act which provides that upon receipt of a complaint from an employee alleging a violation of the Act, "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." 29 U.S.C. § 660(c)(2). The defendant maintains that because the complaint does not aver that an investigation was conducted by the Secretary prior to the institution of this suit, the suit must be dismissed for want of jurisdiction. Defendant's argument is that an allegation of an investigation is a jurisdictional prerequisite to suit under the Act. Defendant has cited no authority in support of its position. Plaintiff maintains that, even though the complaint does not allege in so many words that an investigation was conducted by the Secretary, such an investigation was in fact conducted prior to the bringing of this suit. Plaintiff also argues that if a prior investigation was not conducted, defendant was not prejudiced by the absence of an investigation.

The short answer to defendant's contention is that the Act leaves it up to the Secretary's discretion whether and to what extent to investigate a complaint prior to bringing suit. The Act provides that "the Secretary shall cause such investigation to be made as he deems appropriate." (emphasis supplied). Thus, as far as the Act is concerned, the Secretary need not conduct any investigation prior to instituting suit. Furthermore, even assuming arguendo that a prior investigation is a sine qua non to suit under the Act, the complaint would not have to expressly allege such an...