The October 28, 2022 Federal District Court ruling in Walsh v. Community Health Center of Richmond Inc. and Henry Thompson reminds employers that preventing workplace retaliation is as significant responsibility as the more commonly recognized duty to maintain safe workplaces and prevent workplace injuries under the Occupational Safety and Health Act (“OSH Act”) or other federal whistleblower acts administered enforced by the U.S. Department of Labor Occupational Safety and Health Administration (“OSHA”).

Along with requiring employers to maintain safe workplaces and follow a host of other specific safety and recordkeeping requirements, the OSH Act and its implementing rules protect workers who report a hazardous work condition from retaliation. OSHA enforces these rules as well as a multitude of other whistleblower rules.

OSHA sued Community Health Center of Richmond Inc. and its CEO, Henry Thompson (the “employer” or (“Community Health Center”) for allegedly violating the OSH Act’s whistleblower safeguards by suspending and later terminating Qiana Nunez for raising concerns about the potential for COVID-19 exposure at an in-person staff meeting during the COVID-19 pandemic.

At the beginning of the COVID-19 pandemic, Qiana Nunez worked for Community Health Center as an Executive Office Manager. Concerned about the potential spread of COVID-19 at Community Health Center’s planned in-person executive leadership meeting on March 17, 2020, Ms. Nunez sent an email to participants alerting them that the meeting would instead be held by teleconference. After CEO Thompson instructed her to re-set the meeting as an in-person meeting, Ms. Nunez did so, but told Thompson that she would not attend out of concern for her health.  Two days later, Ms. Nunez was suspended from her duties for “insubordination, confrontational and disruptive behavior, and refusal to participate in the . . . leadership meeting on Tuesday, March 17, 2020.” Ms. Nunez subsequently received a letter in April, 2020, informing her that Community Health Center was “exercising our employer right to terminate your at-will employment.” 

On May 7, 2020, Nunez filed a complaint with the Occupational Safety and Health Administration (“OSHA”) pursuant to Section 11(c) of the Occupational Safety and Health Act (“OSH Act”), alleging that defendants suspended and terminated her for making a complaint about unsafe conditions at the March 17, 2020 meeting, and for her refusal to attend. 

On June 17, 2020, while the Secretary’s Section 11(c) investigation was ongoing, Nunez also sued Community Health Center and Mr. Thompson-in federal court, asserting wage claims under the Fair Labor Standards Act and New York Labor Law and violations of New York Labor Law § 740. See Nunez v. Cmty. Health Ctr. of Richmond, Inc., No. 1:20-cv-03036 (E.D.N.Y.) (the “Prior Action”). N.Y.L.L. § 740 protects employee-whistleblowers from adverse employment action. In her original complaint, Ms. Nunez identified then-Governor Andrew Cuomo’s March 16, 2020 COVID-related Executive Order as the law allegedly violated by defendants, but later amended her complaint to assert that the violation was OSH Act’s General Duty Clause.

Section 11(c)(1) of the OSH Act provides that “[n]o person shall discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter . . . or because of the exercise by such employee on behalf of himself or others of any right afforded by this chapter.” Section 11(c)(2) further provides that “[a]ny employee who believes that [she] has been discharged or otherwise discriminated against by any person” in violation of Section 11(c)(1) may “file a complaint with the Secretary [of Labor] alleging such discrimination.”  If the Secretary believes Section 11(c)(1) was violated, “[the Secretary] shall bring an action in any appropriate United States district court against such person.”  Only the Secretary may sue under Section 11(c)(2); there is no private right of action. See Donovan v. Occupational Safety and Health Rev. Comm’n, 713 F.2d 918, 926 (2d Cir. 1983).

On October 9, 2020, the employer served a partial motion to dismiss the Prior Action arguing that because Nunez lacked a private right of action under the OSH Act, she could not predicate her state whistleblower claim on alleged OSH Act violations. Before briefing was completed, however, a settlement reached between Ms. Nunez and the employer. See Walsh v. Cmty. Health Ctr. of Richmond, 21-CV-3094 (ARR)(TAM), (E.D.N.Y. Sep. 28, 2022)

In light of the settlement reached in the state action, the employer in October 2021 moved for the court to bar and dismiss OSHA’s action seeking individual damages for the whistleblower arguing that the dismissal of the former employee’s prior state whistleblower claim prevents the department from obtaining monetary relief for the aggrieved worker. The employer argued the Department’s actions were barred by claim preclusion seeking money damages to be paid to defendants’ former employee, Qiana Nunez because Ms. Nunez litigated similar claims to final judgment in a prior lawsuit. The employers argued this prior litigation barred the Secretary from seeking monetary relief payable to Ms. Nunez in this action.

On Sept. 28, 2022, a federal court ruled in Walsh v. Cmty. Health Ctr. of Richmond that the prior litigation did not bar the Secretary from pursing the whistleblower damages on behalf of the employee because of the department’s exclusive authority to seek damages for individual whistleblowers under the OSH Act. The court recognized when the department brings such actions, it does so to vindicate broader public rights and reaffirmed the central importance of strong whistleblower protection provisions and enforcement.

The decision has significant implications significant implications both for COVID-19 related and other OSH Act whistleblower claims as OSHA enforces the whistleblower provisions of the Occupational Safety and Health Act and 24 other statutes protecting employees who report violations of various airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, motor vehicle safety, healthcare reform, nuclear, pipeline, public transportation agency, railroad, maritime, securities, tax, antitrust, and anti-money laundering laws and for engaging in other related protected activities. The decision confirms both the willingness and the authority of OSHA to pursue federal enforcement under the OSH Act and potentially other federal whistleblower laws and its willingness to use this authority to seek recovery when state law whistleblower laws fail to produce a remedy for OSH Act whistleblower violations.

For More Information

We hope this update is helpful. For more information about these or other health or other legal, management or public policy developments, please contact the author Cynthia Marcotte Stamer via e-mail or via telephone at (214) 452 -8297. 

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About the Author

Recognized by her peers as a Martindale-Hubble “AV-Preeminent” (Top 1%) and “Top Rated Lawyer” with special recognition LexisNexis® Martindale-Hubbell® as “LEGAL LEADER™ Texas Top Rated Lawyer” in Health Care Law and Labor and Employment Law; as among the “Best Lawyers In Dallas” for her work in the fields of “Labor & Employment,” “Tax: ERISA & Employee Benefits,” “Health Care” and “Business and Commercial Law” by D Magazine, Cynthia Marcotte Stamer is a practicing attorney board certified in labor and employment law by the Texas Board of Legal Specialization and management consultant, author, public policy advocate and lecturer widely known for 35 plus years of health industry and other management work, public policy leadership and advocacy, coaching, teachings, and publications.

A Fellow in the American College of Employee Benefit Counsel, Co-Chair of the American Bar Association (“ABA”) International Section Life Sciences and Health Committee and Vice-Chair Elect of its International Employment Law Committee, Chair-Elect of the ABA TIPS Section Medicine & Law Committee, Past Chair of the ABA Managed Care & Insurance Interest Group, Scribe for the ABA JCEB Annual Agency Meeting with HHS-OCR, past chair of the ABA RPTE Employee Benefits & Other Compensation Group and current co-Chair of its Welfare Benefit Committee, and Chair of the ABA Intellectual Property Section Law Practice Management Committee, Ms. Stamer is most widely recognized for her decades of pragmatic, leading-edge work, scholarship and thought leadership on heath benefit and other healthcare and life science, managed care and insurance and other workforce and staffing, employee benefits, safety, contracting, quality assurance, compliance and risk management, and other legal, public policy and operational concerns in the healthcare and life sciences, employee benefits, managed care and insurance, technology and other related industries. At her career, she has worked extensively with healthcare and other employers to manage discrimination and other workplace and employee benefit compliance and risks. She speaks and publishes extensively on these and other related compliance issues.

Ms. Stamer’s work throughout her career has focused heavily on working with health care and managed care, life sciences, health and other employee benefit plan, insurance and financial services and other public and private organizations and their technology, data, and other service providers and advisors domestically and internationally with legal and operational compliance and risk management, performance and workforce management, regulatory and public policy and other legal and operational concerns. Scribe for the ABA JCEB Annual Meeting with the HHS Office of Civil Rights, her experience includes extensive involvement throughout her career in advising health care and life sciences and other clients about preventing, investigating and defending EEOC, DOJ, OFCCP and other Civil Rights Act, Section 1557 and other HHS, HUD, banking, and other federal and state discrimination investigations, audits, lawsuits and other enforcement actions as well as advocacy before Congress and regulators regarding federal and state equal opportunity, equity and other laws. 

For more information about Ms. Stamer or her health industry and other experience and involvements, see www.cynthiastamer.com or contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail here. 

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