Case 3:16-cv-02568-D Document 17 Filed 11/14/16 Page 23 of 32 PageID 107 Defendants’ Brief in Support of Their Motion to Dismiss - Page 18 of 26 obtain review of OSHA enforcement actions. See 29 U.S.C. § 660(a); Manganas Painting, 104 F.3d at 802; Northeast Erectors, 62 F.3d at 39-40 (concluding employer could raise estoppel-based claim as defense during challenge to citation in ordinary administrative review procedure). District courts can still assert jurisdiction over “claims considered wholly collateral to a statute’s review provisions and outside the agency’s expertise,” especially “where a finding of preclusion could foreclose all meaningful judicial review.”

The OSH Act already prohibited them from taking materially adverse action against employees for reporting injuries. See 29 U.S.C. § 660(c); 29 C.F.R. § 1904.36.

But those cases addressed the very different question of whether the predicate condition in fact had been met, not the result that Case 1:11-cv-00289-RJL Document 15 Filed 06/03/11 Page 25 of 58 – 15 – DC1 2025010v.1 should follow when it is. Thus, where the Occupational Safety and Health Act stated that if the Department of Labor “determines that [the Act has] been violated” then the Department “shall bring an action” against the employer, 29 U.S.C. § 660(c)(2), a plaintiff could not challenge the Department’s refusal to file suit if the Department has not in fact found that a violation had occurred. Wood v. U.S. Dept’ of Labor, 275 F.3d 107, 110 (D.C. Cir. 2001).3 C. A Mandatory Reading Of “Shall” Does No Violence To The Statute.

Section 11(c)(1) provides generally that no person shall discharge or in any manner discriminate against any employee because the employee has (a) filed any complaint under or related to the Act; (b) instituted or caused to be instituted any proceeding under or related to the Act; (c) has testified or is about to testify in any proceeding under the Act; or (d) exercised on Case 5:17-cv-05014-PKH Document 13 Filed 03/28/17 Page 2 of 7 PageID #: 43 Page 3 of 7 behalf of himself or others of any right afforded by the Act. 29 U.S.C. § 660(c)(1). “In considering retaliation cases, this Court has adopted a three-prong framework for analysis.”

This Request requires a legal conclusion which the Defendant is not qualified to make, and the Request is therefore denied. REQUEST NO. 72: On a certification of a question of law from the United States Court of Appeals for the Tenth Circuit [the question certified is determined]: "Does the remedy provided by OSHA Section ll(c) [29 U.S.C. Section 660 (c) (1994)] for employees who allege they have been discharged in retaliation for filing of a Kansas common law wrongful discharge claim under Kansas' public policy exception to at-will employment?" The answer is: No.

In addition to preemption, Plaintiff’s OSHA retaliation claim fails because an employee does not have a private cause of action for retaliation under OSHA. See George v. Aztec Rental Center, Inc., 763 F.2d 184 (5th Cir. 1985)(affirming dismissal of retaliatory discharge claims under 29 U.S.C. § 660(a)(1) because no private cause of action exists). The CSRA delineates the remedial scheme under which federal employees can challenge “prohibited personnel practices.”

The administrative and judicial review procedures in the two acts are nearly identical. Compare 29 U.S.C. § 660(a) with 30 U.S.C. § 816(a)(1). Moreover, like the claim in Thunder Basin, the NEA's estoppel claim is "of the type Congress intended to be reviewed within this statutory structure."

If upon such investigation, the Secretary determines that the provisions of this subsection have been violated, he shall bring an action.” 29 U.S.C. § 660(c)(2). Section 404(c) is unlike the provision in OSHA because it does not call for a separate “investigation” or “veto process” before making the veto determination.