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Cook canned for unsanitary practices, not retaliation; no OSHA private right of action

By Cynthia L. Hackerott, J.D.

Having been repeatedly cited for unsanitary practices and other misconduct, a hotel cook failed to show that his multiple complaints to the EEOC, rather than his infractions in the kitchen, were the real reason for his discharge. Although all of a D.C. Circuit panel agreed to affirm the district court’s dismissal of his Title VII, ADA, and ADEA reprisal claims, Judge Millett, concurring, agreed only that the employee failed to demonstrate that the hotel did not honestly and reasonably believe that he committed the alleged infractions. The full panel agreed, though, with the lower court’s ruling that Section 11(c) of the Occupational Safety and Health Act (OSH Act) does not provide for a private right of action, and thus, affirmed the dismissal of his OSH Act reprisal claim (Johnson v. Interstate Management Co., LLC dba Hamilton Crowne Plaza Hotel, March 3, 2017, Kavanaugh, B.).

The employee worked as a cook at a hotel managed by the defendant management company. A decade into his tenure, the employer began to issue a “steady stream” of warnings about his unsatisfactory performance. He was repeatedly reprimanded for a variety of unsanitary cooking and cleaning practices in the kitchen, using the wrong ingredients when preparing meals, incorrectly filling out timesheets, and violating the anti-harassment policy. A few years later, he was suspended for undercooking chicken served at a 250-person banquet, but was later reinstated with a “final warning” stating that “any violation of any standard of conduct” would result in his immediate termination. Nevertheless, several months later, the company merely cited him for thawing frozen chicken in a sink, cooling soup improperly, and setting off a fire alarm by letting too much smoke accumulate in the kitchen grill. Finally, when he served a breaded chicken breast with plastic wrap melted under the breading, the hotel’s HR director fired him, based on this incident and his documented history of “repeated performance failings.”

District court ruling. The employee sued, stating that his disciplinary history was not the real reason for his termination, but rather, that the company retaliated against him for a complaint made to OSHA in 2010 (resulting in a $34,200 fine against the company) and for three separate EEOC complaints over the years about alleged discrimination.

The lower court dismissed the employee’s OSHA claim, holding that Section 11(c) of the OSH Act does not provide a private cause of action for retaliation claims. The court granted summary judgment in favor of the employer on the reprisal claims brought under Title VII, the ADA, and the ADEA, finding that he did not present sufficient evidence for a reasonable jury to find that the stated reason for his discharge was pretextual.

No private cause of action. Affirming, the appeals court agreed that Section 11(c) of the OSH Act does not provide a private cause of action for retaliation. Even though Section 11(c)(1) prohibits employers from retaliating against employees for reporting violations of the Act, Section 11(c)(2) provides that the remedy for aggrieved employees is to file a complaint with the Secretary of Labor and, following an investigation, the Secretary may sue the employer on the employee’s behalf.

Given that the text of Section 11(c) does not expressly grant employees a private cause of action for retaliation claims, the employee argued that a private cause of action is implied by the statute. But the appeals court panel explained that if the text of a statute does not provide a cause of action, there ordinarily is no cause of action. On rare occasions, the Supreme Court has recognized implied causes of action, but only where the relevant statute demonstrates Congress’s intentnotwithstanding the lack of an express cause of action—to create a “private right” and a “private remedy.” Since the High Court’s 1975 decision in Cort v. Ash, it has been very hostile to implied causes of action. Citing the Supreme Court’s 2001 decision in Alexander v. Sandoval, the court explained that the reasoning behind this hostility is that in order to recognize an implied cause of action, a court must conclude that Congress intended to provide a cause of action even though Congress did not expressly say as much in the text of the statute.

Still, the employee argued, Congress adopted Section 11(c) in 1970, at a time when the Supreme Court readily recognized implied causes of action; it wasn’t until Cort that the High Court clamped down on implied causes of action. Congress in 1970 would have expected that Section 11(c) would create a private cause of action for retaliation claims, even though Congress did not actually say as much in the text of the statute, he reasoned. Stating that “the Supreme Court has rejected that kind of time-travel argument before,” the D.C. Circuit also rejected it. When courts determine whether there is an implied cause of action, there is not a more relaxed rule for statutes enacted before 1975 and a tougher rule for statutes enacted after 1975; rather, courts apply the tougher rule to all statutes. Nor could the employee find support in the legislative history, since the text of the statute resolves the issue.

Pretext lacking. The employee also failed to show that the stated reason for his discharge was a pretext for retaliation under the other federal employment discrimination statutes he asserted. Noting that the record was devoid of any direct evidence that would on its own suffice to overcome summary judgment, the majority deemed his indirect evidence of retaliation unconvincing. Although he argued that the company’s evidence did not support its articulated reason for his discharge, the majority found that the employer presented a plethora of evidence that backs up its version of the case. The company’s business records indicate that he violated company policy on at least 13 separate occasions between 2007 and 2011. Some of those violations “could have seriously imperiled the safety (not to mention the appetites) of the hotel’s customers,” the appeals court observed. The employee offered little to dispute the alleged infractions. For almost all of them, he simply stated that the hotel’s contemporaneous reports on the incidents were inaccurate and that he did not sign the infraction reports.

As to the final infraction that cemented his termination, the employee contended that he didn’t cook the plastic-laden chicken breast—he left work by 1:30 p.m. on the day it was served for dinner. “But the key for that incident is when the chicken was cooked, not when it was served,” the majority noted, and the employee did not produce sufficient evidence to demonstrate that the chicken was cooked by other kitchen staff after he left for the day. Further, the hotel’s investigation concluded that he had prepared the chicken.