Unlawful Retaliation Against Protected Reporting of Safety Violations

Unlawful Retaliation Against Protected Reporting of Safety Violations

By: R. William Huye III

 Loftus v. Horizon Lines, Inc. & Matson Alaska, Inc., ALJ NO: 2014-SPA-00004 (Mass. Admin. Ct. July 12, 2014Administrative Law Judge (“ALJ”) Callianos found that Horizon Lines Inc. (“Horizon”) violated the whistleblower protection provision of the Seaman’s Protection Act (“SPA”) by unlawfully retaliating against an employee for reporting safety violations.  In addition to awarding damages to the terminated employee, ALJ Callianos levied substantial fines against Horizon (now merged with Matson Alaska Inc.)Loftus was an employee of Horizon for 20 years. During this term, he held several positions; for the last six years of his employment, however, he served as Captain. In that position Loftus reported Horizon for several safety violations, both to the United States Coast Guard (“USCG”) and the American Bureau of Shipping (“ABS”). Horizon knew of these reports and held follow-up meetings with Loftus following each of them. Under the SPA, reporting safety concerns is considered protected activity and maritime employers are prohibited from retaliating in any way against the reporting seaman. Because Horizon knew of the protected reporting activity, it had a duty to not retaliate against Loftus.In April 2013, Loftus captained a ship through a severe storm. He knew the storm was coming days in advance and began preparation. While the seas were still relatively calm, Loftus sent the crew to secure loose garbage can lids. During the task, a member of the crew was injured and helicoptered to an emergency room. Pursuant to Horizon policy, when a crewmember is injured, all other involved crewmembers must be immediately drug tested.  (It is required by Coast Guard regulations as well and within a specific period of time after an accident). In accordance with the policy, an onshore supervisor repeatedly demanded that Loftus administer drug tests. Loftus refused, stating that he must focus on getting out of the storm.Loftus made it to port and immediately filed a safety violation alleging, in part, that Horizon had distracted him from safely navigating the ship during a severe and dangerous storm by persistently demanding that he immediately administer drug tests. Shortly after, Horizon significantly demoted Loftus. In response, Loftus claimed that the demotion was so significant that it was a constructive discharge, and he refused to take the demoted position. After the employment terminated, Loftus was not allowed on the ship to retrieve his six years worth of possessions. Instead, his belongings were provided to Loftus out of the back of a truck and was forced to publically sort through them.Judge Calllianos found that the protected reporting of safety violations was an unlawful contributory factor to the adverse retaliation by Horizon against Loftus. As a result, Horizon was ordered to pay $655,198.90 in back pay to Loftus, plus $10,000 for emotional distress, and $225,000 in punitive damages, in addition to all attorney’s fees and costs.