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Perez v. Eastern Awning Systems, Inc.

United States District Court, D. Connecticut

October 9, 2018

THOMAS E PEREZ, SECRETARY OF LABOR, United states Department of Labor Plaintiff,
EASTERN AWNING SYSTEMS, INC., and STEPHEN P. LUKOS, an individual, Defendants.


          MICHAEL P. SHEA, U.S.D.J.

         Plaintiff, Secretary of Labor Thomas E. Perez, alleges that Defendants Eastern Awning Systems, Inc. and Stephen P. Lukos, its president (“Defendants”), discharged two Eastern Awning employees in retaliation for filing health and safety complaints under the Occupational Safety and Health Act of 1970, in violation of section 11(c) of that act, codified at 29 U.S.C. § 660(c)(1). Defendants now move for summary judgment on the basis of the Secretary's six-year delay in bringing the case or, in the alternative, on the Secretary's substantive claims. I find that there are material questions of fact as to the Defendants' delay defense and the Secretary's retaliation claims. Defendants' motion is therefore DENIED.

         I. Factual Background

         The following facts are taken from the parties' Local Rule 56(a) statements and are undisputed except where otherwise noted.

         Eastern Awning Systems, Inc. (“Eastern Awning”) is a Connecticut corporation that manufactures retractable patio awnings. (Defendants' Local Rule 56(a)1 Statement ¶ 1, ECF No. 76) (“56(a)1 Stmt.”). Stephen Lukos is the President of Eastern Awning and made all hiring and firing decisions at the times relevant to the complaint. (Id. ¶ 1-3.) In June 2009, Mary DeLeon and Francis Espinal were employees of Eastern Awning (id. ¶ 4), and both had “established reputations as good workers.” (Plaintiff's Local Rule 56(a)2 Statement at 6 ¶ 1, ECF No. 79-32) (“56(a)2 Stmt.”).

         On June 15, 2009, DeLeon and Espinal were working in the powder coat room at Eastern Awning. (Id. ¶ 2.) Their duties included applying powder to metal parts and placing them in an oven to cure the powder coating. (Id.) The parties dispute the details of what occurred that day. DeLeon recounted in her interviews with the Occupational Safety and Health Administration that she began to experience a “burning sensation” and asked to turn on the ventilation system. (ECF No. 79-1 at 5.) Her supervisor told her that Lukos would not permit anyone to turn on the ventilation system. (Id.) DeLeon felt increasingly ill as the day went on. (Id. at 6.) She approached Lukos on her lunch break to plead with him to address the issue. (Id.) He told her to “stop being a crybaby about it.” (Id.) She left the area and vomited. (Id.) She eventually convinced Lukos to enter the powder room. (Id.) He acknowledged the problem and allowed them to open a window. (Id.) DeLeon continued to feel sick, vomiting twice more. (Id.) It is undisputed that she and Espinal eventually left to seek medical attention. (56(a)1 Stmt. ¶ 7.) DeLeon filed a complaint with OSHA on June 19. (ECF No. 179-13 ¶ 4.)

         DeLeon was medically cleared returned to work on June 24. (56(a)1 Stmt. ¶ 8.) She worked a normal schedule from June 24 through August 24 apart from two absences. (Id. ¶ 10-11.) On July 24, she reported to her supervisor that she was exposed to pepper spray outside of work the prior evening and her eyes were still too irritated to work. (Id. ¶ 10.) She missed work a second time for a medical appointment on August 4. (Id.) On August 26, DeLeon reported for her shift, but was told she could not work until she provided documentation for her August 4 absence. (Id. ¶ 13.) She obtained a note from her doctor and attempted to return to work the same day. (Id.) Her supervisor informed her she still could not return, this time until she provided documentation for her July 24 absence. (Id. ¶ 14.)

         The record on Francis Espinal is less clear. The parties agree that Espinal did not return to work “from June 16 until on or about August 26, 2009.” (56(a)1 ¶ 9.) The Secretary asserts that the record shows Espinal returned to Eastern Awning in late August, but was told he could not begin work until he met with Lukos. (56(a)2 ¶ 45.) He attempted to call or meet with Lukos “approximately a half-dozen” times, but was told that Lukos was busy. (56(a)2 ¶ 46.) It is undisputed that on August 26, Eastern Awning sent a certified letter to Espinal informing him that he could return to work on August 31, but the letter was returned as undeliverable. (56(a)1 ¶ 15.) The Secretary asserts that DeLeon informed Eastern Awning of Espinal's proper address on September 4, but Eastern Awning did not attempt to send a second letter. (56(a)2 ¶ 44.) The parties agree that Eastern Awning offered to reinstate Espinal “via OSHA” on October 19, 2009 after it was informed that he had filed a retaliation complaint. (56(a)1 ¶ 16.)

         Additional disputed facts are incorporated as relevant in the discussion below.

         II. Legal Standard

         “Summary judgment is appropriate only if the movant shows that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.” Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014) (internal quotation marks and citations omitted). “In making that determination, a court must view the evidence in the light most favorable to the opposing party.” Id. (quotation marks omitted). On summary judgment a court “must resolve all ambiguities and draw all reasonable inferences against the movant.” Caronia v. Phillip Morris USA, Inc., 715 F.3d 417, 427 (2d Cir. 2013). The moving party bears the burden of demonstrating that no genuine issue exists as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986). If the moving party carries its burden, “the opposing party must come forward with specific evidence demonstrating the existence of a genuine dispute of material fact.” Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011).

         III. Discussion

         A. Laches

         1. Availability of Laches for Retaliation Claims Brought by the Government

          Defendants first move for dismissal on the basis of laches. Laches is an affirmative defense based on the maxim that “equity aids the vigilant, not those who sleep on their rights.” Ivani Contracting Corp. v. City of New York, 103 F.3d 257, 259 (2d Cir. 1997) (quotation marks omitted). The Secretary argues that laches is not a defense to a section 11(c) retaliation claim. (ECF No. 79 at 3.) “It is well settled that the United States is not bound by state statutes of limitation or subject to the defense of laches in enforcing its rights.” United States v. Summerlin, 310 U.S. 414, 416 (1940). Thus, while courts will, in the absence of a federal statute of limitations, refer to a statute of limitations based on analogous state law for federal causes of action brought by private parties, see Johnson v. Ry. Exp. Agency, Inc., 421 U.S. 454, 462 (1975) (“Since there is no specifically stated or otherwise relevant federal statute of limitations for a cause of action under § 1981, the controlling period would ordinarily be the most appropriate one provided by state law.”), they will not do so for statutes authorizing the government to sue on its own behalf or in furtherance of the public interest, United States v. Beebe, 127 U.S. 338, 344 (1888) (“The principle that the United States are not bound by any statute of limitations, nor barred by any laches of their officers, however gross, in a suit brought by them as a sovereign Government to enforce a public right, or to assert a public interest, is established past all controversy or doubt.”).

         In situations where the government brings suit on behalf of an individual, both furthering the public interest and vindicating the individual's rights, courts have declined to apply a statute of limitations; nevertheless, district courts may limit the availability of relief if the government unreasonably delayed in bringing its case and the delay has caused prejudice to a defendant. See Occidental Life Ins. Co. of California v. E.E.O.C., 432 U.S. 355, 373 (1977) (“This Court has said that when a Title VII defendant is in fact prejudiced by a private plaintiff's unexcused conduct of a particular case, the trial court may restrict or even deny backpay relief. . . . The same discretionary power to locate a just result in light of the circumstances peculiar to the case . . . can also be exercised when the EEOC is the plaintiff.”) (citations and quotation marks omitted). The Occupational Health and Safety Act of 1970 was enacted “to assure so far as possible every working man and woman in the Nation safe and healthful working conditions.” 29 U.S.C. § 651(b). Section 11(c) of the act requires the Secretary of Labor to bring suit if, after receiving a complaint from an employee, he determines that the employer imposed an adverse employment action on the employee because the latter filed a complaint or testified about an unsafe working condition. 29 U.S.C. § 660(c). The court in a section 11(c) suit may order reinstatement of the employee, back pay, and other relief. Id. Like EEOC enforcement actions, such suits vindicate both the public interest and private rights. Accordingly, the only two Circuit Courts of Appeal that have considered the issue have held that no statute of limitations applies to OSHA retaliation claims, but that district courts have discretion to deny relief when defendants have been prejudiced by the Secretary's unreasonable delay in bringing suit. See Marshall v. Intermountain Elec. Co., 614 F.2d 260, 263 (10th Cir. 1980) (citing Occidental Life Ins. and refusing to apply a statute of limitations for OSHA retaliation claims brought by the Secretary of Labor, but noting that “the doctrine of laches may be applied . . . to limit relief”); Donovan v. Square D Co., 709 F.2d 335, 340 (5th Cir. 1983) (refusing to apply a statute of limitations for OSHA retaliation, but noting “[i]f . . . an inordinate and inexcusable delay results in prejudice to a defendant's ability to present his defense, the district courts may restrict or even deny back pay relief”).

         Consistent with the Fifth and Tenth Circuits, and with the Supreme Court's reasoning in Occidental Life Insurance, I conclude that I have discretion to limit the relief available for OSHA retaliation claims brought by the government under 29 U.S.C. 660(c) after an unreasonable delay causing prejudice to the defendants.[1]

         2. Defendants Are Not Entitled to Summary Judgment on the Basis of Delay

         To establish their defense, the Defendants must show (1) the plaintiff's delay in bringing his claim was “unreasonable and inexcusable;” and (2) the delay “has resulted in prejudice to the defendant[s].” Ivani Contracting Corp., 103 F.3d at 259. (quotation marks omitted) (describing the Second Circuit standard for laches); see also Donovan v. Square D Co., 709 F.2d at 340 (noting the same factors for an undue delay defense in a section 11(c) suit). A showing of undue prejudice depends heavily on “circumstances peculiar to the case.” Occidental Life Ins. Co. of California, 432 U.S. at 373. Laches is an affirmative defense and I treat the undue delay defense the same way. Fed.R.Civ.P. 8(c)(1). A defendant seeking summary ...

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