Acosta v. Jardon & Howard Technologies, Inc., et al

Filing 22

ORDER denying 18 Motion to Dismiss for Failure to State a Claim. Signed by District Judge James C. Dever III on 11/2/2018. (Sellers, N.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTII CAROLINA
EASTERN DIVISION
No. 4:18-CV-16-D
R. ALEXANDER ACOSTA,

Secretary of Labor,
Plaintiff,

v.
JARDON & HOWARD
TECHNOLOGIES, INC.,
and ANN SKARDSKI,
Defendants.

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ORDER

On May 2, 2018, R. Alexander Acosta, the Secretary of Labor for the United States

Department ofLabor ("Secretary of Labor'' or ''plainti:fr'), filed an amended complaint on behalf of
Daniel R. Carr ("Carr") against Jardon & Howard Technologies, Inc. ("JHT") and Ann Skradsi
(''Skradsi") [D.E. 1S]. The Secretary ofLabor seeks injunctive and other appropriate relief pursuant
to section 11(c)ofthe0ccupational SafetyandHealthActof1970,29U.S.C. § 651, et~ Id. On
May 30, 2018, niT and Skradsi moved to dismiss the amended complaint for failure to state a claim
upon which relief can be granted, [D.E. 18], and filed a memorandum in support [D.E. 19]. See Fed.
R. Civ. P. 12(b)(6). On May 30, 2018, the Secretary of Labor responded in ·opposition [D.E. 20].
As explained below, the court denies niT's and Skradsi's motion to dismiss.

I.

From September 2007 to December 8, 2014, Carr worked as a medical laboratory technician
for niT. See Am. Compl. [D.E. 1S] ~ 6. On December 4, 2014, Carr sent an e-mail to Jennifer Potts
("Potts"), a biologist for the National Oceanic and Atmospheric Administration (''NOAA"), that
expressed safety concerns over the recent installation _of algal labs near his office. See id. ~ 7. On

the same day, Potts forwarded Carr's e-mail to the Chief of the Sustainable Fisheries at NOAA, Dr.
Erik Williams ("Williams"), and stated that Carr's safety concerns were ''not without merit." Id. ~
8. On DecemberS, 2014, and at Williams's direction, Carr forwarded his e-mail to the Deputy
Director of the NOAA Beaufort Laboratories, James L. Guyton ("Guyton"). See id. ~ 9-10. On
the same day, Guyton advised Carr that his concerns about potential safety issues from the labs
should be relayed to the JHT Program Manager, Skradsi, who Guyton copied on the e-mail. See id.
~ S,

11. On December 8, 2014, Skradsi informed Carr that JHT had terminated his employment.

Id. ~ 13.
On May 2, 2018, the Secretary of Labor tiled an amended complaint on behalf of Carr that

alleged that defendants discriminated against Carr in violation section ll(c)(l) ofthe Occupational
Safety and Health Act of 1970 by terminating his employment in retaliation for Carr reporting safety
concerns. See [D.E. 15]

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15; 29 U.S.C. § 660(c)(l). The Secretary of Labor seeks permanent

injunctive relief against future violations by defendants, reimbursement to Carr in an amount equal
to his lost wages and accrued interest, reinstatement of Carr to a comparable position, and other
appropriate relief. See [D.E. 15] 4-S. On May 30, 2018, JHT and Skradsi moved to dismiss the
Secretary ofLabor's amended complaint under Federal Rule of Civil Procedure 12(b)(6). JHT and
Skradsi argue that the doctrine oflaches bars the complaint because approximately three years passed
between when Carr initially notified the Department of Labor of the all~ged violation of section
ll(c)(l) and when the Secretary of Labor tiled the complaint. See [D.E. 18] 1; [D.E. 19] 3--6; cf.
[D.E.

IS]~

14-15.
II.

A motion to dismiss under Rule 12(b)(6) tests the complaint's legal and factual sufficiency.
SeeAshcroftv.lqbal, SS6U.S. 662,677-80(2009);BellAtl. Com. v. Twombly. SSOU.S. 544,5542

63 (2007); Coleman v. Md. CourtofAp_peals. 626 F.3d 187, 190 (4thCir. 2010), aff'd, 566U.S. 30
(2012); Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008). To withstand a Rule 12(b)(6)
motion, a pleading ''must contain sufficient factual matter, accepted as true, to state a claim to relief
that is plausible on itS face." Iqbal, 556 U.S. at 678 (quotation omitted); see Twombly, 550 U.S. at
570; Giarratano, 521 F.3d at 302. In considering the motion, the court must construe the facts and
reasonable inferences "in the light most favorable to the [nonmoving parcy] ." Massey v. Ojaniit, 759
F.3d 343, 352 (4th Cir. 20 14); see Clatterbuck v. City of Charlottesville, 708 F.3d 549, 557 (4th Cir.
2013), abrogated on other grounds~ Reed v. Town of Gilbm, 135 S. Ct. 2218 (2015). A court
need not accept as true a complaint's legal conclusions, ''unwarranted inferences, unreasonable
· conclusions, or arguments." Giarratano, 521 F.3d at 302; see Iqbal, 556 U.S. at 67&-79. Rather, a
plaintiff's allegations must ''nudge[] [his] claims," Twombly, 550 U.S. at 570, beyond the realm of
''mere possibility'' into ''plausibility." Iqbal, 556 U.S. at 67&-79.
Laches is an affirmative defense. See Fed. R. Civ. P. 8(c)(l). A ''motion to dismiss filed
under Federal Rule of Civil Procedure 12(b)(6) ... generally cannot reach the merits of an
affirmative defense" except in the ''rare" circumstance in which facts sufficient to rule on the
affirmative defense are alleged in the complaint. Goodman v. Praxair. Inc., 494 F.3d 458, 464 (4th
Cir. 2007) (en bane); see U.S. exrel. Obergv. Pa HigherEduc. Assistance Agency, 745 F.3d 131,
148 (4th Cir. 2014); Richmond. Fredericksburg & Potomac R.R. v. Forst, 4 F.3d 244, 250 (4th Cir.
1993). Although courts can consider laches in the context of a motion to dismiss under Rule
12(b)(6), laches requires a fact-intensive analysis that is usually inappropriate to resolve on the face
ofthe complaint. See E.E.O.C. v. Am. Nat'l B~ 574 F.2d 1173, 1176 (4th Cir. 1978); Champion
Labs.. Inc. v. Cent ill. Mfg. Co., 157 F. Supp. 3d 759,765-66 (N.D. ill. 2016); Lennon v.
63 F. Supp. 2d 428, 43&-39 (S.D.N.Y. 1999).

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Although the Secretary of Labor filed the complaint approximately three years after JHf
terminated Carr's employment, no facts apJ)ear on the face ofthe complaint showing either plaintiff's
lack of diligence or prejudice to defendants. See E.E.O.C. v. Navy Fed. Credit Unio~ 424 F .3d 397,
409 (4th Cir. 2005); E.E.O.C. v. Radiator Speciality Co., 610 F.2d 178, 183 (4th Cir. 1979);
E.E.O.C. v. S.C. Nat'l B~ 562 F.2d 329, 332 (4th Cir. 1977). Accordingly, the court declines to
resolve the laches issue on a motion to dismiss under Rule 12(b)(6).
Alternatively, even if it were proper to evaluate defendants' laches defense at this time, the
defense fails. Laches requires a defendant to prove "(1) lack of diligence by the party against whom
the defense is asserted, and (2) prejudice to the party asserting the defense." Navy Fed. Credit
Unio~

424 F.3d at 409. Laches, however, does not apply against the United States when acting to

enforce a public right or to protect a public interest. See U.S. Immigration and Naturalization Serv.
v. ffibi, 414 U.S. 5, 8 (1973) (per curiam); Costello v. United States, 365 U.S. 265, 281 (1961);
United States v. Summer@, 310 U.S. 414,416 (1940); United States v.~Jones, 532 F. App'x 321,
322(4thCir.2013)(percuriam)(unpublished);Woodsv. Wayne, 177F.2d559,561 (4thCir.1949);
Leonard v. Gage, 94 F.2d 19, 24-25 (4th Cir. 1938).
The Fourth Circuit has not yet addressed whether section 11(c) furthers public or private
interests. In a different context, however, the Fourth Circuit has characterized section 11 (c) as
protecting ''workers in all industries from retaliation for filing a complaint, instituting a proceeding,
testifying, or exercising rights related to safety and health in the workplace." Lee v. Norfolk S. Ry.
Co., 802 F.3d 626, 633 (4th Cir. 2015). Moreover, the ''fundamental objective" of the Act is ''to
prevent occupational deaths and injuries." .Whirlpool Cotp. v. Marshall, 445 U.S. 1, 11 (1980).
Furthermore, other federal circuit courts have held that section 11 (c) primarily protects public
interests. See Donovan v. Square D Co., 709 F.2d 335, 340-41 (5th Cir. 1983); Marshall v.

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Intermountain Elec. Co., 614 F.2d 260, 262 (lOth Cir. 1980). Indeed, the Occupational Safety and
Health Act itself indicates that its primary goals are public in nature, namely ''to assure so far as
possible every working man and woman in the Nation safe and healthful working conditions and to
preserveourhumanresources." 29U.S.C. § 651(b). In addition, section ll(c) doesnotcontainany
private right of action. See SquareD Co., 709 F.2d at 338-39.
This court concludes that a suit to obtain relieffor an employee under section 11 (c) primarily
advances public futerests despite authorizing some private relieffor individual employees. See, e.g.,
Perezv.E.AwningSys.. Inc.,No. 3:15-CV-1692(MPS),2018WL4926447,at*2-3 (D. Conn. Oct.
10, 2018) (unpublished); Donovan v. Diplomat Envelope Corp.. 587 F. Supp. 1417, 1424 (E.D.N.Y.
1984); Donovan v. R.D.AndersenConstr. Co., 552F. Supp. 249,251 (D.Kan.1982). Accordingly,
laches does not bar the Secretary of Labor's action under section ll(c).

m.
In sum, the court DENIES defendants' motion to dismiss [D.E. 18].
SO ORDERED.

This~ day

ofNovember 2018.

J SC.DEVERID
United States District Judge

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