May 24, 2013
Robert Lee Johnson, Plaintiff,
Interstate Management Co., LLC, Hampton Crown Plaza Hotel, Defendant.
This matter is before the Court on review of plaintiffs pro se complaint and application to proceed in forma pauperis. The application will be granted and the case will be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) (requiring dismissal of a case upon a determination that the complaint fails to state a claim upon which relief may be granted).
Plaintiff, a District of Columbia resident, has filed suit under 29 U.S.C. § 660(c) for alleged discrimination and retaliation by his former employer located in the District of Columbia. See Compl. at 1-6. Plaintiff alleges that he was fired because of his whistleblower activity. See
Id . The Occupational Safety and Health Act of 1970 ("OSHA") "prohibits employers from discharging employees because they file complaints or otherwise exercise rights afforded by the [OSHA], including but not limited to informing the Occupational Safety and Health Administration . . . of unsafe conditions and requesting a federal inspection." Johnson v. Interstate Mgmt. Co., LLC, 871 F.Supp.2d 1, 4 (D.D.C. 2012) (quoting Kennard v. Louis Zimmer Comm'cns, Inc., 632 F.Supp. 635, 636 (E.D. Pa. 1986) (citing 29 U.S.C. § 660(c)(1)). An "employee who believes" that a violation has occurred may "file a complaint with the Secretary [of the Department of Labor], " who, in turn, "shall cause such investigation to be made as he deems appropriate." 29 U.S.C. § 660(c)(2). "If upon such investigation, the Secretary determines that the [statute] has been violated, he shall bring an action in any appropriate United States district court against such person." Id.
Plaintiff has attached to the complaint the Secretary's decision dated February 4, 2013, finding after investigation that "[t]he preponderance of the evidence failed to support that you were terminated because of your engagement in protected activity." The OSHA does not authorize a private cause of action. See Johnson, 871 F.Supp.2d at 5 (citing cases). Hence, this case will be dismissed for failure to state a claim. A separate Order accompanies this Memorandum Opinion.