Opinion
04-CV-6169T.
July 21, 2004
DECISION and ORDER
INTRODUCTION
Plaintiffs Robert Mulvaney and Anna Mulvaney bring this action pursuant to the Occupational Safety and Health Act ("OSHA" or "the Act") and the Civil Service Law of New York claiming that Robert Mulvaney (hereinafter "plaintiff") was wrongfully retaliated against by the defendants for complaining of occupational hazzards and safety violations at his worksite. Specifically, plaintiff claims that he was demoted from his position as a materials handler after complaining of health and safety violations to the New York State Public Employee Safety and Health Bureau ("PESH"). Plaintiffs bring additional causes of action for intentional and negligent infliction of emotional distress, and loss of consortium.
Defendants deny plaintiffs' allegations, and move pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure to dismiss plaintiffs' complaint on grounds that OSHA does not authorize a private cause of action for retaliatory discrimination. Defendants further argue that once plaintiffs' federal cause of action is dismissed, the court should dismiss plaintiffs' remaining state and common law causes of action for lack of pendant jurisdiction.
BACKGROUND
According to the Complaint, Robert Mulvaney has worked for the City of Rochester ("the City") since 1991. On or about July 11, 2002, while working at his jobsite, Mulvaney became ill from fumes that were not properly vented. Thereafter, he filed a complaint with the New York State Public Employee Safety and Health Bureau ("PESH") claiming that his jobsite was not safe. As a result of plaintiff's complaint, the PESH cited the defendant for several work-place health and safety violations.
One month later, in August, 2002, plaintiff discovered improper, non-work-related data on a city computer used by his supervisor, John Howland Though plaintiff reported the unauthorized use of the computer by Howland to City authorities, it is unclear what, if any, action was taken against Howland
Ten months later, in June, 2003, plaintiff, who was employed as a materials handler, was informed by Howland that his position had been eliminated due to budget cuts, and that he was being reassigned to a janitorial position. Plaintiff contends that the basis for the demotion was pretextual, as several employees received raises during the time period at issue, and several employees received overtime pay on a regular basis. He contends that the real reasons for his demotion were his complaints to the PESH, and to his supervisor's bosses.
DISCUSSION I. Defendants' Motion to Dismiss
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of the complaint where the plaintiff has failed to state a claim upon which relief can be granted. When evaluating a Rule 12(b)(6) motion, the court must ascertain, after presuming all factual allegations in the pleading to be true and viewing them in the light most favorable to the plaintiff, whether or not the plaintiff has stated any valid ground for relief. Ferran v. Town of Nassau, 11 F.3rd 21, 22 (2d Cir. 1993), cert. denied, 513 U.S. 1014 (1994). The court may grant a Rule 12(b)(6) motion only where "`it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Allen v. WestPoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir. 1991) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).
Section 11c of the Occupational Safety and Health Act provides in relevant part that no employer 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 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). The Section further provides that any employee who believes he or she has been discriminated against in violation of Section 11c "may, within thirty days after such violation occurs, file a complaint with the Secretary [of Labor] alleging such discrimination." 29 U.S.C. § 660(c)(2). The Act provides that the Secretary shall investigate the employee's claim, and, if the Secretary believes that discrimination has occurred, file an action in an appropriate United States District Court. Id.
In the instant case, plaintiff did not file a charge of discrimination with the Secretary, but instead has instituted a private cause of action in this court alleging retaliatory discrimination based on his complaints of occupational health and safety violations to a New York State Agency. This court, however, does not have jurisdiction over plaintiff's claim because the Occupational Safety and Health Act does not authorize a private cause of action for discriminatory retaliation. Smith v. E.I. Dupont de Nemours, 2004 U.S. Dist. Lexis 8014 (W.D.N.Y. March 30, 2004) (Skretney, J.); Fletcher v. United Parcel Service, Local Union 705, 155 F.Supp.2d 954 (N.D. Ill. 2001);George v. Aztec Rental Center, Inc., 763 F.2d 184 (1985);Taylor v. Brighton Corp., 616 F.2d 256 (6th Cir. 1980). Because Section 11c of OSHA does not authorize a private cause of action for plaintiff's retaliatory discrimination claims, plaintiff lacks standing to bring, and this court lacks jurisdiction to hear his retaliation complaint.
Plaintiff argues, however, that 29 U.S.C § 660(c)(2) is permissive in that it states that an aggrieved employee "may" file a complaint with the Secretary, but does not mandate such action. According to the plaintiff, the permissive language used in the statute suggests that an employee may proceed with a complaint filed with the Secretary of Labor, or may proceed directly with an action in federal court. Plaintiff's reading of the statute, however, fails to consider the full text of Section 660(c)(2), which identifies the Secretary of Labor as being the only person authorized to bring an action in federal court for retaliatory discrimination. Specifically, Section 660(c)(2) provides that in cases where the Secretary has investigated a complaint and believes that an employee has been discriminated against, the Secretary "shall bring an action in any appropriate United States District Court." No other type of action is identified in or authorized by the statute. Because the instant case has not been filed by the Secretary of Labor, this court may not entertain the federal claim set forth in plaintiff's Complaint. Accordingly, defendants' motion to dismiss plaintiffs' OSHA claim is granted, and plaintiffs' OSHA claims are dismissed with prejudice.
Pursuant to 28 U.S.C. 1367(c)(3), a district court may decline to exercise jurisdiction over state law claims where the court has dismissed all claims over which it has original jurisdiction. Because the sole federal claim of plaintiff's complaint has been dismissed, I decline to exercise jurisdiction over plaintiff's remaining state and common law causes of action. See United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966) (authorizing district court to dismiss state and common law claims for lack of jurisdiction when all federal claims have been dismissed).
ALL OF THE ABOVE IS SO ORDERED.