Perez v. Ohio Bell Tel. Co.
| Decision Date | 14 July 2016 |
| Docket Number | No. 15-3303,15-3303 |
| Parties | THOMAS E. PEREZ, Secretary of Labor Plaintiff-Appellant, v. OHIO BELL TELEPHONE COMPANY Defendant-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 16a0394n.06
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO
Before: SUHRHEINRICH and MOORE, Circuit Judges; LUDINGTON, District Judge.1
LUDINGTON, District Judge. Secretary of Labor Thomas Perez, plaintiff below, appeals the judgment entered in the district court against it and in favor of Appellee the Ohio Bell Telephone Company. The Secretary, acting through the Occupational Safety and Health Administration ("OSHA"), filed suit against Ohio Bell on behalf of thirteen employee complainants, alleging that Ohio Bell violated the Occupational Safety and Health Act of 1970 ("OSH Act" or "Act"), Pub. L. No. 91-596, 84 Stat. 1590-1620 (). The employees alleged that Ohio Bell punished them for reporting workplace accidents. The Secretary sought restitution for the employees and a permanent injunction restraining Ohio Bell from further violations of the Act.
The Secretary now appeals the district court's determination that the Secretary's request for a permanent injunction was, as a matter of law, overbroad and that the case was mooted after Ohio Bell granted the underlying complainants the relief sought on their behalf by Perez.
Appellant Thomas Perez is the Secretary of the United States Department of Labor. OSHA, established by the Act in 1971, is an agency within the Department of Labor.
The Act directs the Secretary to promulgate uniform standards for workplace safety and health. See 29 U.S.C. §§ 652(8) & 655(a). Employers and their employees are required to comply with OSHA's safety and health standards. 29 U.S.C. § 654(a)&(b). If employers or employees fail to comply with OSHA's safety and health standards the Secretary may "issue citations and proposed penalties for alleged violations" against the employer. 29 C.F.R. § 1903.1. Employers, accordingly, are tasked with assuring that employees comply with OSHA's safety and health standards and in doing so may discipline employees who do not comply OSHA's safety and health standards.
Appellee Ohio Bell is principally located in Cleveland, Ohio. It provides communications and entertainment services throughout Ohio. To facilitate the provision of those services, it "maintains a network of fiber and copper transmission lines and related electronics and connection terminals." Truszkowski Decl. ¶ 2., Page ID 97. The thirteen complainants, on whose behalf the Secretary filed suit, are employees of Ohio Bell who work in some capacity "installing, repairing, and servicing network facilities." Id. at ¶ 3.
On February 13, 2012, Todd Fensel, an employee of Ohio Bell, filed a formal complaint with OSHA wherein he alleged that Ohio Bell disciplined him for reporting a workplace injury.Fensel had informed his supervisor on January 5, 2012 that he had sprained his shoulder the day before while performing a required check of his vehicle. Fensel slipped on black ice and hurt his shoulder when he tried to break his fall. Fensel sought medical treatment for his shoulder injury.
Ohio Bell investigated the accident. It determined that "Fensel should have worn ice grip shoes rather than company issued non-skid boots." Pl.'s Compl. ¶ VII(e). As a result, Ohio Bell concluded, "Fensel had violated its policy on prevention of falls, though no specific safety rule or section of the policy was cited." Id. On February 7, 2012, Ohio Bell issued Fensel a written warning and imposed a one-day unpaid suspension.
Over the next fourteen months OSHA received what it viewed as twelve similar complaints alleging that Ohio Bell had punished complaining employees for reporting a workplace injury. The workplace injuries varied in cause, type, and severity. The internal policy cited by Ohio Bell for disciplining the complainants varied as well. The discipline imposed by Ohio Bell on the twelve other complainants was also similar to that imposed on Fensel. Each complainant received a written warning and an unpaid suspension. All but two of the unpaid suspensions were for one day; two of them were three-day suspensions. In twelve of the instances, Ohio Bell cited a policy (such as its Slips, Trips and Falls prevention policy) that the employee had violated but did not specify the specific section of the policy that the employee violated.
OSHA investigated the employees' retaliation complaints. It discovered that in each incident, an employee had been injured on the job and reported that injury to Ohio Bell. In each case, Ohio Bell investigated the circumstances of the injury and determined that the injury was preventable. Ohio Bell chose to discipline these employees under its Midwest Network ServicesManager's Guide to Corrective Action. The discipline was premised, according to Ohio Bell, on the employees' non-compliance with workplace safety policies that Ohio Bell had in place.
During the investigation Ohio Bell worked consensually with OSHA to revise some of the employee safety policies of which OSHA was critical. Ohio Bell revised its Slips, Trips and Falls prevention training policy and the revision was approved by OSHA. Bullock Decl. ¶¶ 6-7, Page ID 101. It also revised the policy under which the complainants were disciplined, the Manager's Guide to Corrective Action. Truszkowski Decl. ¶ 6, Page ID 98. Ohio Bell changed the definition of "accident" in the policy and the circumstances under which it can discipline an employee for having a "preventable accident." Id. The prior version of the disciplinary policy, under which the complainants were disciplined, is no longer in effect. Id. at ¶ 7.
When OSHA completed its investigation into Ohio Bell's discipline of the employees' reported injuries it reached the internal conclusion that Ohio Bell had violated § 11(c)(1) of the Act. 29 U.S.C. § 660(c)(1). That section provides:
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.
Id. The Secretary then initiated the present suit on behalf of OSHA by filing his complaint on February 10, 2014.
The Secretary's complaint alleged that Ohio Bell discriminated against the complainants in violation of § 11(c)(1) of the Act when Ohio Bell disciplined employees for reporting workplace accidents. The complaint also sought a directive from the district court that Ohio Bell remove the written warnings and any record of discipline from the complainant's files, and compensate the complainants for their unpaid leave. The Secretary also sought to have the district court order Ohio Bell to post "a notice for employees stating that [Ohio Bell] will not inany manner discriminate against employees because of their engagement in protected activities under Section 11(c) of the Act." Pl.'s Compl. ¶ XXX, Page ID 19. Lastly, the Secretary requested permanent injunctive relief. His prayer for injunctive relief reads, in total:
Wherefore, cause having been shown, Plaintiff prays judgment permanently enjoining and restraining Defendant, its officers, agents, servants, employees and those persons in active concert or participation with it, from violating the provisions of Section 11(c)(1) of the Act, and for such other and further relief as may be necessary and appropriate.
Id. The Secretary did not seek a preliminary injunction or a temporary restraining order under Federal Rule of Civil Procedure 65(a) or (b).
In response to the suit by the Secretary, Ohio Bell compensated the complainants for the wages they lost while on unpaid leave. It also removed the record of discipline from each of the employees' files. This was done in addition to the revisions Ohio Bell made to its workplace safety rules in conjunction with OSHA.
Ohio Bell timely moved for summary judgment pursuant to Federal Rule of Civil Procedure 56. It argued that the case is moot and should be dismissed as such. First, Ohio Bell asserted that the primary relief requested by the Secretary had been mooted when Ohio Bell compensated the complainants for their unpaid leave and removed the records of discipline from the employee's files. It also argued that the injunctive relief requested by the Secretary lacked factual support and was moot. According to Ohio Bell there was no factual support for the Secretary's injunction request. In support of its motion for summary judgment, Ohio Bell furnished the declarations of Jan Truszkowski, Human Relations Business Partner for Ohio Bell; Mark Bullock, Environmental Health & Safety Field Support Area Manager supporting Ohio Bell; Sandra Key, AT&T Environmental Health & Safety Lead Administrator supporting Ohio Bell; and Sheri Singleton, Lead Financial Systems Analyst for AT&T with access to Ohio Bell'spayroll records. Sandra Key's declaration emphasized that only twenty-nine percent of the accidents reported by employees between 2011 and 2013 were deemed preventable and that it exercised its discretion to discipline employees carefully as demonstrated by the fact that it issued discipline in only eleven percent of cases where an accident was reported. The declarations also emphasized that it had worked with OSHA and had changed some of its employee safety policies. Accordingly, Ohio Bell argued, the request for injunctive relief was moot since it could no longer discipline employees under the former policies. Lastly, and in the alternative, Ohio Bell argued that permanent injunctive relief should be denied because the requested injunction was an overbroad "obey the law" injunction...
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