Richard C. Hunt, Banu Kite Ramachandran, Edwin A. Harnden, BARRAN LIEBMAN, LLP, Portland, OR, Attorneys for Plaintiff.
Bradley Heath Cohen, U.S. DEPT. OF JUSTICE, CIVIL DIVISION, Federal Programs Branch, Washington, DC, Attorneys for Defendants.
OPINION & ORDER
MARCO A. HERNANDEZ, District Judge.
Oak Harbor Freight Lines, Inc. ("Oak Harbor") is a service carrier with operations in Washington, Oregon, Idaho, and Nevada. Compl., ¶ 29. Shawn Flanery, Jeffrey Murillo, and Cade Mason, three drivers employed by Oak Harbor, filed complaints with the Occupational Safety and Health Administration ("OSHA"). In their complaints, Flanery, Murillo, and Mason alleged Oak Harbor violated 49 C.F.R. § 392.3 ("§ 392.3"), which prohibits drivers from operating commercial motor vehicles when fatigued or ill, and the Surface Transportation Assistance Act ("STAA"), 49 U.S.C. § 31105 ("§ 31105"), which makes it unlawful for employers to retaliate against employees for following § 392.3. See 49 U.S.C. § 31105(a)(B)(i). Compl., ¶¶ 12-19.
Plaintiff brings this action against Seth D. Harris, the Acting Secretary of Labor (the "Secretary"), seeking a declaration that Plaintiff's attendance policy under which it disciplined Flanery, Murillo, and Mason does not violate § 392.3 and § 31105. Compl., Prayer for Judgment, ¶ 1. Now before this Court is Defendant's motion to dismiss (dkt. #8) under 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction and failure to state a claim, respectively. For the reasons that follow, Defendant's motion is granted.
I. The Complaint
The Complaint states that "Flanery, Murillo, and Mason... filed complaints [with OSHA]" alleging Oak Harbor violated § 31105. Compl., ¶¶ 13-14. According to the Complaint, Flanery filed a complaint with OSHA alleging that Oak Harbor unlawfully retaliated against him in violation of § 31105 when it "suspended him without pay on or about September 24, 2010, and then terminated his employment on or about September 30, 2010, ... for... refusing to drive...." Compl., ¶¶ 14, 16. Murillo's complaint alleges that Oak Harbor unlawfully retaliated against him on October 17, 2012, and January 16, 2013, for "refus[ing] to drive when he inform[ed] dispatch that he was too sick to safely drive.'" Id., ¶ 18. Mason's complaint alleges Oak Harbor unlawfully retaliated against him in violation of § 31105 when it "suspended him on or about January 29, 2013... for refusing to drive in violation of [§] 392.3[.]'" Compl., ¶ 19.
The Complaint also alleges that "[o]n November 4, 2010, the Secretary, through an OSHA investigator named Rebecca Phelps, proposed to... settle... Flanery's complaint" by requiring Oak Harbor "to pay Flanery... back wages, to expunge Flanery's employment records...; to respond with [only] a neutral reference' should any third party inquire as to Flanery's employment...; to revise its attendance policy... [;]... and to provide training to all [Oak Harbor] agents and representatives regarding the protections of... [§] 31105 and... [§] 392.3." Compl., ¶ 15. "On December 26, 2010, the Secretary... again proposed to [settle]... Flanery's complaint, and threatened that if Oak Harbor did not... [settle] and pay damages to Flanery..., Phelps would recommend to [her] supervisor that there [was] sufficient evidence... to show that Oak Harbor violated [§ 31105] when it suspended and then discharged' Flanery." Compl., ¶ 17. The Complaint also alleges the Secretary "encouraged [Oak Harbor] to promptly settle [Murillo's] complaint" and "warned [Oak Harbor] that failure to make employees available for interviews upon request' could result in an adverse Finding... and possibly... punitive damages.'" Id., ¶ 18. With respect to Mason, the Complaint alleges that the Secretary "encouraged' Oak Harbor to consider offering... Mason's job back in good faith if... Mason was discharged, ' and again warned that failure to make employees available for interviews...' could result in an adverse Finding... and possibly... punitive damages.'" Id., ¶ 19.
"On June 24, 2013, the Secretary, through Phelps, informed Oak Harbor that OSHA... agree[d]... that there [was] sufficient evidence to show that Oak Harbor violated [§31105] when it suspended and then discharged... Flanery.... [and]... urged Oak Harbor to sign... a settlement... by July 1, 2013." Id., ¶¶ 15, 20 (internal quotation mark omitted). The settlement "require[d] Oak Harbor... to pay Flanery a specified sum constituting back wages and $10, 000 in punitive damages, to expunge Flanery's employment records of various pieces of information, to refrain from mentioning to any third parties Flanery's alleged protected activity, ' to revise its attendance policy..., and to provide training to all its agents and representatives regarding the protections of... [§] 31105 and... [§] 392.3." Compl., ¶ 20. That same day, June 24, 2013, the Secretary also "urged Oak Harbor to settle the complaints brought by Murillo and Mason by offering a lump sum monetary amount... and expungement [sic] of their personnel records.'" Id., ¶ 21. The Secretary "warned that if Oak Harbor did not promptly settle the cases..., then OSHA [would] increase the punitive damage amount with each complaint[, ]'... [which under § 31105 could] reach $250, 000." Compl., ¶ 21.
II. Oak Harbor's Attendance Policy
Oak Harbor's attendance policy tracks employee "unscheduled absences, " which Plaintiff also refers to as "occurrences." Id., ¶ 8. Employees who accumulate occurrences "are subject to progressive disciplinary action, including verbal and written warnings, suspension, and termination." Id . Employees who assert that they are "too ill or fatigued to drive safely[, ]" are "permitted to work for Oak Harbor at a task other than driving that day, at no reduction in pay and without facing any discrimination, sanction, or penalty." Id., ¶ 10. Drivers who merely call in sick and do not report to work, however, incur occurrences under Oak Harbor's attendance policy. Id., ¶ 11.
Oak Harbor alleges that the "Secretary's prosecution of [Flanery, Murillo, and Mason's] complaints, and the Secretary's... unpublished position regarding the lawfulness of Oak Harbor's attendance policy, is based upon an erroneous interpretation of... [§] 392.3 and... [§] 31105." Compl., ¶ 24. Oak Harbor also alleges that it did not "discharge[, ]... discipline[, ] or discriminate against'" Flanery, Murillo, or Mason because they "refuse[d] to operate a vehicle'" under § 392.3, but only "suspended and terminated" them because they "failed to report to work without notice or excused cause." Compl., ¶¶ 26, 27. Finally, Plaintiff alleges that its attendance policy "ensure[s] that any driver who declines to drive because he asserts that his operation of a commercial motor vehicle would violate... [§] 392.3 is provided the opportunity to work at another task and to earn his regular wage that day" and is not disciplined "because the driver declined to drive because he asserted that his driving... would violate... [§] 392.3." Compl., ¶ 28.
A. First Claim for Relief
Plaintiff's first claim for relief seeks a declaration that "its uniformly applied attendance policy, in conjunction with its policy of providing alternate duty work to drivers who assert that they are unable to drive... pursuant to... [§] 392.3, is lawful and does not violate... [§] 392.3, ... [§] 31105, or any other federal law or regulation." Compl., First Claim for Relief, ¶ 3. Oak Harbor alleges that the "Secretary's unpublished interpretation of... [§] 392.3 and... [§] 31105" violates its "Fifth Amendment right to due process...." Compl., First Claim for Relief, ¶ 4(a)-(b). Oak Harbor further alleges that the "Secretary's procedures for resolution of employee complaints brought under... [§] ...