Solis v. Brighton Medical Clinic et al
Filing
18
ORDER denying 10 Motion to Dismiss. Plaintiffs shall file a motion as directed in footnote 1 on or before October 26, 2012, by Chief Judge Wiley Y. Daniel on 9/24/12.(sgrim)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Wiley Y. Daniel
Civil Action No. 11-cv-02786-WYD-MJW
HILDA L. SOLIS, SECRETARY OF LABOR;
UNITED STATES DEPARTMENT OF LABOR,
Plaintiffs,
v.
BRIGHTON MEDICAL CLINIC;
LUITHUK ZIMIK, P.C.; and
LUITHUK ZIMIK, individually,
Defendants.
ORDER
This case involves a complaint under the Occupational Safety and Health Act
filed by the Department of Labor (hereinafter “Department”) on behalf of Christhian
Martinez. The Department alleges that the Defendants unlawfully terminated Martinez’s
employment after she complained to the Occupational Safety and Health Administration
about her unsafe work environment. Currently before me is a motion to dismiss filed by
one of the three Defendants in this case - Dr. Luithuk Zimik. [DE-10]. Dr. Zimik moves
pursuant to Federal Rules 12(b)(1) and 12(b)(6) to dismiss the Department’s Complaint
because he was not Martinez’s “employer” under the relevant statutory provisions and
therefore cannot be liable for terminating her or discriminating against her under the
Occupational Health and Safety Act, 29 U.S.C. §660(c)(1). Having considered the
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parties’ papers and the relevant law, I find that liability is not limited to “employers” but
extends to all “persons” who discriminate against any employee for exercising their
rights under Occupational Health and Safety Act. Dr. Zimik’s motion to dismiss is
therefore denied as set forth below.
I.
FACTUAL BACKGROUND
The facts are not in dispute and Zimik’s motion only raises a legal issue. The
named Defendants in this matter are Brighton Medical Clinic, Luithuk Zimik, P.C. and
Luituk Zimik. Dr. Zimik’s motion, however, clarifies that the proper corporate entity
involved in this case is Luithuk Zimik, M.D., P.C., d/b/a Brighton Medical Clinic.1 Dr.
Zimik is the sole officer, shareholder and director of that corporate entity.
On August 3, 2009, Christhian Martinez commenced her employment as a
receptionist with Brighton Medical Clinic, located in Brighton, Colorado. On October 13,
2009, Martinez filed a complaint with the Denver Area Office of the Occupational Safety
and Health Administration (“OSHA”) alleging that Brighton Medical Clinic exposed her to
various dangerous conditions in the workplace. The following day, OSHA informed
Brighton Medical Clinic that it had received a complaint without revealing the identity of
the complaining party. Martinez thereafter unsuccessfully attempted to discuss her
safety concerns with her supervisor. On October 26, 2009, Martinez faxed a letter to
Brighton Medical Clinic specifying the conditions rendering her workplace unsafe,
including the placement of certain boxes and malfunctioning telephones and doors.
1
I will order Plaintiffs to file an appropriate motion to conform the caption and named
parties in this case to the stipulation of Defendants.
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Brighton Medical Clinic terminated Martinez’s employment four days later on October
30, 2009.
On October 25, 2011, the Department filed a one count complaint against all
three Defendants alleging that they violated the Occupational Safety and Health Act of
1970 (29 U.S.C. §§ 651-677) (hereinafter referred to as “the Act”).2 Specifically, the
Department alleges that the Defendants violated Section 11(c), 29 U.S.C. §660(c)(1), by
unlawfully terminating her for filing a complaint with OSHA and for refusing to reinstate
her with back pay. The Department further alleges that Dr. Zimik made the decision to
terminate Martinez’s employment. The Department seeks an Order from the Court
enjoining the Defendants from violating the OSH Act; directing the Defendants to
reinstate Martinez; directing Defendants to make restitution to Martinez for lost wages;
directing the Defendants to pay compensatory damages for emotional distress; and
awarding any further appropriate relief.
II.
LEGAL STANDARD
Dismissal pursuant to Rule 12(b)(1) is appropriate if the Court lacks subject
matter jurisdiction over claims for relief asserted in the complaint. To the extent the
2
Section 11(c)(1) of the Act, 29 U.S.C. §660(c)(1), provides:
(c) Discharge or discrimination against employee for exercise of rights under this
chapter; prohibition; procedure for relief
(1) 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.
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Defendant attacks the factual basis for subject matter jurisdiction, the Court “may not
presume the truthfulness of the factual allegations in the complaint, but may consider
evidence to resolve disputed jurisdictional facts.” SK Finance SA v. La Plata Cnty., 126
F.3d 1272, 1275 (10th Cir. 1997). “Reference to evidence outside the pleadings does
not convert the motion to dismiss into a motion for summary judgment in such
circumstances.” Id.
Under Rule 12(b)(6), the “court’s function ... is not to weigh potential evidence
that the parties might present at trial, but to assess whether the plaintiff's Complaint
alone is legally sufficient to state a claim for which relief may be granted.” Dubbs v.
Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003) (citations omitted). In doing so,
the Court “must accept all the well-pleaded allegations of the complaint as true and
must construe them in the light most favorable to the plaintiff.” Alvarado v. KOB–TV,
L.L.C., 493 F.3d 1210, 1215 (10th Cir. 2007) (quotation marks and citation omitted).
Generally, “[s]pecific facts are not necessary; the statement need only ‘give the
defendant fair notice of what the claim is and the grounds upon which it rests.’”
Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007)) (omission marks, internal quotation marks, and
citation omitted). The “plausibility” standard requires that relief must plausibly follow
from the facts alleged, not that the facts themselves be plausible. Bryson v. Gonzales,
534 F.3d 1282, 1286 (10th Cir. 2008).
“Statutory construction must begin with the language employed by Congress and
the assumption that the ordinary meaning of that language accurately expresses that
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legislative purpose.” Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 179 (2009). If the
statute has a “plain and unambiguous meaning with regard to the particular dispute in
the case” and the statutory scheme is coherent and consistent, the Court’s inquiry ends.
Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997). Where a statute’s language is
plain, “the sole function of the courts is to enforce it according to its terms.” United
States v. Ron Pair Enter., Inc., 489 U.S. 235, 241 (1989).
III.
LEGAL ANALYSIS
A.
STATUTORY CONSTRUCTION OF 29 U.S.C. §660(c)(1)
The entire thrust of Dr. Zimik’s motion is premised on a single legal argument that he personally did not employ Martinez and therefore he personally cannot be liable
under §660(c)(1). Under Dr. Zimik’s interpretation of §660(c)(1), liability only attaches to
the employers of an employee. As a result, Dr. Zimik maintains that only Martinez’s
employer, Brighton Medical Clinic, can be liable under §660(c)(1). He therefore argues
that the Complaint must contain allegations sufficient to pierce the corporate veil of
Brighton Medical Clinic for him to be a proper party. Because the Department has not
advanced any basis to pierce the corporate veil, Dr. Zimik maintains that the Court lacks
personal jurisdiction over him personally under §660(c)(1) and he must be dismissed
form this case.
Dr. Zimik interprets the statutory language of §660(c)(1) far too narrowly. My
analysis begins and ends with the language of §660(c)(1) itself. Ron Pair Enter., Inc.,
489 U.S. at 241. That section provides, in relevant part, that “[n]o person shall
discharge or in any manner discriminate against any employee because such employee
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has” engaged in activity protected under the Act. 29 U.S.C. §660(c)(1)(emphasis
added). The Act further provides that, “[t]he term “person” means one or more
individuals, partnerships, associations, corporations, business trusts, legal
representatives, or any organized group of persons.” 29 U.S.C. §652(4). There can be
no dispute that Dr. Zimik, an individual, is a “person” as the term is defined under
§660(c)(1).
Ignoring this straightforward analysis, Dr. Zimik argues that the reference to a
“person” in §660(c)(1) can only mean an “employer” because the section prohibits
discrimination against, and the discharge of “employees.” Dr. Zimik’s argument ignores
the plain and unambiguous language of the statute and violates the anti-suplerfuous
canon of statutory construction. The Act defines both “person” and “employer”3 in the
definitions section of the statute. 29 U.S.C. §652. Had Congress intended, as Dr. Zimik
argues, to limit §660(c)(1)’s scope to only “employers,” it presumably would have used
the term “employer” instead of “persons” in §660(c)(1). Because I must “assume that
Congress used two terms because it intended each to have a particular,
non-superfluous meaning,” Bailey v. United States, 516 U.S. 137, 146 (1995), Dr.
Zimik’s argument must be rejected.
My analysis and conclusion also finds support from the only two published
decisions interpreting this aspect of §660(c)(1) that the parties cited or my own research
uncovered. In Donovan v. Diplomat Envelope Corp., 587 F.Supp. 1417 (E.D.N.Y. 1984)
3
An “employer” is defined as “a person engaged in a business affecting commerce who
has employees[.]” 29 U.S.C. §652(5).
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the Secretary of Labor filed suit against an employer and its vice-president alleging they
discharged an employee for complaining to his union of violations of the Act. The vicepresident moved for summary judgment and argued that §660(c)(1) authorizes a claim
only against the employer itself and not against the employer's officers. Id. at 1425.
The Donovan court noted that the vice-president’s “contention is easily disposed of”
because §660(c)(1) uses the term “person”, not “employer” and the Act contains
separate definitions for “person” and “employer.” Id.
The court in Reich v. State Credit Inc., 897 F.Supp. 1014, 1016 (N.D. Ohio 1995)
reached the same conclusion. In that case, the Secretary of Labor filed suit against an
employer and a manager for retaliating against an employee in violation of §660(c)(1).
The manager argued that he could not be individually liable under §660(c)(1) because
he was merely the employer’s agent. Id. at 1016. In rejecting this contention, the court
found the manager’s argument contrary to the statute’s specific language that “no
person shall discharge or in any manner discriminate.” Id. (quoting 29 U.S.C.
§660(c)(1)) (emphasis in original). The court held that the manager was not excused
from liability as an agent of the employer because the “statute's prohibition extends to
any other person in a position to discriminate[.]” Id. (quotations omitted).
Consistent with Donovan and Reich, Dr. Zimik cannot avoid liability under
§660(c)(1) merely because he did not employ Martinez. Those decisions make clear
that the statute extends beyond “employers” and encompasses “any person” who
discriminates against an employee in violation of the Act. Reich, 897 F.Supp. at 1016;
Donovan, 587 F.Supp. at 1425. Moreover, the applicable federal regulations echo this
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sentiment:
the prohibitions of section 11(c) are not limited to actions taken by
employers against their own employees. A person may be chargeable with
discriminatory action against an employee of another person. Section
11(c) would extend to such entities as organizations representing
employees for collective bargaining purposes, employment agencies, or
any other person in a position to discriminate against an employee.
29 C.F.R. § 1977.4.
IV.
CONCLUSION
Based on the foregoing, there exists no support in the express language of the
Act, the case law or the federal regulations for Dr. Zimik’s argument that only employers
can be liable for discriminating against employees under §660(c)(1). Accordingly, it is
ORDERED THAT
(1)
Defendant Luithuk Zimik’s Motion to Dismiss [DE-10] is DENIED.
(2)
Plaintiffs shall file a motion as directed in footnote 1 on or before October
26, 2012.
Dated: September 24, 2012.
BY THE COURT:
s/ Wiley Y. Daniel
WILEY Y. DANIEL,
CHIEF UNITED STATES DISTRICT JUDGE
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