Kwick Stop in Shawnee, Oklahoma, settles retaliation case

Posted on March 29, 2011 by Richard Renner

The U.S. Department of Labor (DOL) has announced a settlement with Modern Oil Company, the operator of the Kwick Stop convenience store in Shawnee, Oklahoma. The lawsuit alleged that after OSHA investigated a workplace safety complaint a store in Shawnee, Oklahoma, management grilled the three employees of that store until it determined who called OSHA.  Management then fired the identified whistleblower. The employee was a cashier at the convenience store who complained first to management, and then to OSHA about how the tall stacks of liquor bottles posed a hazard. Whistleblower issues can arise in any type of workplace.

Under Section 11(c) of the OSH Act, whistleblowers do not own any cause of action themselves.  Only the Secretary of Labor can file lawsuits to recover damages for workplace health and safety whistleblowers. Luckily, the Solicitor of Labor decided to file this lawsuit.  It was filed July 15, 2010, and settled on March 1, 2011.  It is case number 5:10-cv-00748-M in the U.S. District Court for the Western District of Oklahoma. This blog reported last August about DOL's decision to file this lawsuit.

The settlement provides that the whistleblower will be reinstated and receive $17,000 in back pay. The court's consent judgment also includes a restraining order that bars the company from violating OSH Section 11(c) in the future, and requires the company to post a notice about the right of all employees to raise concerns about health and safety.

"Every employee has the right to a safe and healthful workplace, and no one should ever fear losing a job or facing retaliation by an employer for exercising that right," said William A. Burke, OSHA's acting regional administrator in Dallas, Texas. "This settlement underscores the Labor Department's commitment to protect workers who have been treated unfairly simply for doing the right thing."

Congress could do the right thing and modernize Section 11(c) by giving workplace safety whistleblowers the same rights that environmental, trucking, nuclear, aviation, food safety, and corporate finance whistleblowers have enjoyed for years. Read my prior pleas for this reform here, here here and here.

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Supreme Court ignores Iqbal and relaxes pleading standards

Posted on March 10, 2011 by Richard Renner

On Monday, the U.S. Supreme Court issued a landmark decision on the right of criminal defendants to sue to get access to DNA that might prove their innocence. The case is Skinner v. Switzer, Case No. 09-9000 (3-7-2011). Before the Supreme Court got to the DNA issue, it first had to review the standards under which it would allow a complaint to be dismissed. On page 7 of the majority opinion (p. 11 of this PDF file), Justice Ginsburg explains the rule as follows:

Rule 8(a)(2) of the Federal Rules of Civil Procedure generally requires only a plausible “short and plain” statement of the plaintiff’s claim, not an exposition of his legal argument.

That means, "a complaint need not pin plaintiff’s claim for relief to a precise legal theory." The opinion cites as authority a respected treatise, Wright & Miller, Federal Practice & Procedure §1219, and Swierkiewicz v. Sorema N. A., 534 U. S. 506, 514 (2002), but it does not cite the Supreme Court's most recent and controversial opinion on this subject, Ashcroft v. Iqbal, 556 U.S. ___, 129 S.Ct. 1937 (2009). I wrote here before about how dangerous the Iqbal decision could be for whistleblowers. Now, even the Supreme Court itself is declining to cite the decision as a general standard for pleading. Even the dissent in Skinner agreed with the majority's statement about the pleading standard. The Court went on to find that Skinner stated a valid claim, even though, "Skinner’s complaint is not a model of the careful drafter’s art." When whistleblowers face motions to dismiss based on Iqbal, their opposition should now cite to Skinner and argue that Skinner states the most recent and better statement of the standard of pleading.

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