Retaliation by Termination: Eleventh Circuit Court of Appeals Upholds Labor Secretary’s Seaman’s Protection Act Finding
Retaliation by Termination: Eleventh Circuit Court of Appeals Upholds Labor Secretary’s Seaman’s Protection Act Finding
By: Ainsley Davidson Fagan
Harley Marine Services, Inc. v. U.S. Department of Labor., No. 15-14110, 2017 WL 370843 (11th Cir. Jan. 26, 2017); Agency v. United States Dep’t. Of Labor, No. 15-14110, 2017 U.S. App. LEXIS 1366 (11th Cir. Jan. 26, 2017).This dispute arose from a final order by the Secretary of Labor which determined that the Appellant, Harley Marine Services, Inc. (Harley) fired Captain Joseph Dady (Dady) in violation of the Seaman’s Protection Act (SPA). [1]In this case, Dady, a captain for Harley was fired after an allision. He was off-duty at the time of the incident and Dady’s mate, who was in charge at the time, failed to mention the allision to him. When Dady learned of the allision, he reported it to his supervisors. However, the crash created a hole in the vessel and when it went out to sea, it began to take on water. Subsequently, after Harley sent an investigator, Dady was fired.After his termination, Dady filed a complaint with the Occupational Safety and Health Administration (OHSA) claiming that he had been fired in violation of the SPA. He claimed that he was not fired for the allision but for his whistle-blowing reports on Harley to the Coast Guard. OSHA did not find a violation. Thereafter, Dady appealed. The Administrative Law Judge (ALJ) found in favor of Dady and ordered Harley to re-hire him. Harley appealed to an Administrative Review Board (ARB), which affirmed the ALJ’s decision. Harley then appealed the decision to the 11th Circuit Court of Appeals.There are four elements in a SPA retaliation claim: (1) The employee participated in a protected activity; (2) The employer knew of the protected activity; (3) The employee was punished or fired from their position; and (4) The termination occurred as result or partial result of the protected activity. For Dady to succeed, he needed to meet all of these hurdles. On appeal, the court reviewed the case under the Administrative Procedure Act.Appellant Harley assigned four instances of error. It argued that the ARB erred when it concluded that (1) Harley knew Dady was engaging in protected activity; (2) the protected activity contributed to Dady’s termination; (3) Harley did not prove by clear and convincing evidence that it would have fired Dady regardless of the protected activity; and (4) Reinstatement was the appropriate remedy. In order to defeat an SPA claim, Harley had to show by clear and convincing evidence that it would have terminated Dady regardless of the protected activity.The court then looked at each assignment. First, the court looked to whether the activity Dady entered into was a protected activity under the SPA. In its case before the ALJ, Harley stipulated that Dady did engage in protected activity and did not contest the issue. The company also stipulated that Dady directly complained to his local union representative and to the Coast Guard about Harley’s behavior. Because of these stipulations, the court presumed that the activities took place. While Harley tried to assert that it did not make the stipulations under the OSHA hearing that the activity was protected, the court found that the ALJ reasonably interpreted Harley’s stipulations as no other interpretation would make sense. The court found that ultimately Harley conceded to Dady the first element of his claim making the remaining elements easy to determine.Next, the court found that there was substantial evidence to support the Secretary of Labor’s conclusion that Harley knew of Dady’s protected activity. In his time working for Harley, Dady had made numerous internal complaints and on one account had even reached out to the media. Harley had been aware of Dady’s habit of internal reporting and thus aware of Dady’s propensity to file reports. Even before the allision, Dady spoke with the media about inadequate lookout concerns. Moreover, the ALJ found substantial evidence that the allision investigation was a cover-up for the real reason Dady was fired. The ALJ concluded that that Dady’s reports contributed to his termination, and thus, Harley had knowledge of such activity.Third, the court found that Harley failed to show clearly and convincingly that it would have terminated its relationship with Dady, regardless of the protected activity. The court pointed to substantial evidence that Harley’s own manual did not require Dady’s termination based on the allision incident. Additionally, the court distinguished Harley’s termination from that of another captain who caused a crash and falsified his own report.Finally, the court determined that Dady’s reinstatement was proper because reinstatement is a presumptive remedy that is automatically available in these claims., even though Dady had requested compensation instead.Ultimately, the court found that Harley failed to show that the Secretary of Labor’s finding of an SPA violation was an abuse of discretion, capricious, or otherwise not in accordance with law.[1] The Act states that a seaman may not be terminated because the seaman reported an incident to the Coast Guard or other appropriate Federal Agency, which they, in good faith, believe violates Maritime law. 46 U.S.C. § 2441 (a)(1)(A)
