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On appeal, the Eighth Circuit affirmed. It determined that the “evidence tends to demonstrate that Harsco applies the rule against fighting without regard to age.” The court noted that “a protected employee was suspended in one fighting incident; a younger employee was terminated in another; and in Hitt's own case, the company terminated both a younger and a protected employee.” The court held that there was no evidence linking the allegedly planned RIF with Hitt's termination (which occurred a month earlier), and that Harsco had a legitimate nondiscriminatory reason for terminating him for fighting.

With regard to comments by Hitt's foreman that he was too old for fighting, and by Hitt's supervisor referring to him as “old man,” the court observed that these comments were not made by a decision-maker with regard to Hitt's termination.

No Equitable Exceptions to Obligation to Pay During Pendency of Arbitration

An employer was required to make interim withdrawal liability payments to a multiemployer health and welfare fund while it arbitrated whether it was liable to the fund for the withdrawal payments. Miller v. Lehigh Coal and Navigation Co., 2004 WL 178597 (M.D. Pa. Jan. 16, 2004).

Lehigh Coal and Navigation Co. made contributions to a multiemployer health and welfare fund. In January 2001, Lehigh ceased operations, and the fund assigned it withdrawal liability of about two million dollars (to be paid in monthly installments). Lehigh contested this withdrawal liability assessment, and sought to arbitrate.

The fund sought a preliminary injunction to force Lehigh to pay the withdrawal liability assessment in thirty-eight monthly installments during the pendency of the arbitration. It cited the Multiemployer Pension Plan Amendments Act as authority for the payments, citing its “pay now, dispute later” component. Lehigh contended that equitable exceptions existed which excused it from making the interim payments.

The U.S. District Court for the Middle District of Pennsylvania granted the injunction, finding no equitable exceptions applied. The court noted that the Third Circuit had never recognized such exceptions. Further, even courts that had permitted equitable exceptions did so only when a benefit fund's claim was frivolous. No such evidence existed in this case.

OSHA Can Pursue Whistleblower Investigation

Clarifying Supreme Court precedent, the Second Circuit has held that the doctrine of sovereign immunity does not block the Occupational Safety and Health Administration (OSHA) from investigating an administrative complaint filed by a state employee whistleblower. Connecticut Dep't of Envtl. Prot. v. Occupational Safety and Health Admin., 2004 WL 99189 (2d Cir. Jan 22).

Anne Rapkin worked as chief counsel for the Connecticut Department of Environmental Protection (DEP). On Sept. 22, 1999, Rapkin filed a letter-complaint with OSHA. The complaint alleged that the DEP had violated the whistleblower provisions by taking away her duties and discriminating against her as a result of her having engaged in activity “protected under the employee protection provisions,” that is, the whistleblower provisions of the Clean Air Act, the Clean Water Act, and the Solid Waste Disposal Act. The whistleblower protections of these statutes prohibit an employer from discharging or otherwise retaliating against an employee for filing a complaint alleging misconduct, or for testifying about misconduct. In her letter-brief, Rapkin sought an injunction prohibiting further harassment, intimidation, or retaliation by the DEP, restoration to her former duties, compensatory damages for pain and suffering, and attorney's fees. OSHA notified the DEP of Rapkin's letter and asked the DEP to provide documentary evidence to an OSHA investigator. The DEP, however, responded by asking that Rapkin's complaint be dismissed on sovereign immunity grounds. Later, the DEP successfully sought a declaratory judgment in federal court that sovereign immunity effectively precluded the OSHA investigation, and a preliminary injunction barring OSHA from pursuing its investigation. OSHA appealed this determination to the Second Circuit.

On appeal, the Second Circuit overturned the decision of the trial court. The court was called to interpret the U.S. Supreme Court's decision in Federal Maritime Commission v. South Carolina State Ports Authority, 535 U.S. 743 (2002), in which the Supreme Court barred a federal maritime commission from pursuing a complaint filed by a ship operator, who alleged Shipping Act violations by a state port authority. There, the Supreme Court held that state sovereign immunity extends to federal administrative proceedings prosecuted by private citizens against states that did not waive their sovereign immunity from suit. The Supreme Court noted that principles of sovereign immunity barred not just lawsuits, but anything that “walks, talks, and squawks” like suit, such as an agency's adjudication of an individual's complaint of retaliation. The Second Circuit distinguished the Federal Maritime Commission case from the facts at bar, however. In the case at bar, the Second Circuit observed, OSHA's requests were made pursuant to an investigation, not an adjudication. Thus, a federal agency is free to investigate an administrative claim, the court wrote. The court recognized in light of Federal Maritime Commission, however, that OSHA would be barred from rendering a judgment following its investigation.

Fighting, Not Age Discrimination, Was Basis for Termination

The Eighth Circuit has held that an employee terminated for fighting in the workplace was not discriminated against on the basis of age. Hitt v. Harsco Corp., 2004 WL 178107 (8th Cir. Jan. 30, 2004).

William Hitt, a 65-year-old employee of Harsco Corp., became involved in an altercation at work with his son-in-law over the custody of Hitt's grandson. Both men were terminated for fighting. Hitt claimed he was terminated because Harsco Corp. had a layoff planned for the following month, and brought suit against the company for age discrimination. Hitt contended that Harsco sought to maximize the number of older employees fired in the RIF. The U.S. District Court for the Eastern District of Arkansas granted summary judgment for Harsco.

On appeal, the Eighth Circuit affirmed. It determined that the “evidence tends to demonstrate that Harsco applies the rule against fighting without regard to age.” The court noted that “a protected employee was suspended in one fighting incident; a younger employee was terminated in another; and in Hitt's own case, the company terminated both a younger and a protected employee.” The court held that there was no evidence linking the allegedly planned RIF with Hitt's termination (which occurred a month earlier), and that Harsco had a legitimate nondiscriminatory reason for terminating him for fighting.

With regard to comments by Hitt's foreman that he was too old for fighting, and by Hitt's supervisor referring to him as “old man,” the court observed that these comments were not made by a decision-maker with regard to Hitt's termination.

No Equitable Exceptions to Obligation to Pay During Pendency of Arbitration

An employer was required to make interim withdrawal liability payments to a multiemployer health and welfare fund while it arbitrated whether it was liable to the fund for the withdrawal payments. Miller v. Lehigh Coal and Navigation Co., 2004 WL 178597 (M.D. Pa. Jan. 16, 2004).

Lehigh Coal and Navigation Co. made contributions to a multiemployer health and welfare fund. In January 2001, Lehigh ceased operations, and the fund assigned it withdrawal liability of about two million dollars (to be paid in monthly installments). Lehigh contested this withdrawal liability assessment, and sought to arbitrate.

The fund sought a preliminary injunction to force Lehigh to pay the withdrawal liability assessment in thirty-eight monthly installments during the pendency of the arbitration. It cited the Multiemployer Pension Plan Amendments Act as authority for the payments, citing its “pay now, dispute later” component. Lehigh contended that equitable exceptions existed which excused it from making the interim payments.

The U.S. District Court for the Middle District of Pennsylvania granted the injunction, finding no equitable exceptions applied. The court noted that the Third Circuit had never recognized such exceptions. Further, even courts that had permitted equitable exceptions did so only when a benefit fund's claim was frivolous. No such evidence existed in this case.

OSHA Can Pursue Whistleblower Investigation

Clarifying Supreme Court precedent, the Second Circuit has held that the doctrine of sovereign immunity does not block the Occupational Safety and Health Administration (OSHA) from investigating an administrative complaint filed by a state employee whistleblower. Connecticut Dep't of Envtl. Prot. v. Occupational Safety and Health Admin., 2004 WL 99189 (2d Cir. Jan 22).

Anne Rapkin worked as chief counsel for the Connecticut Department of Environmental Protection (DEP). On Sept. 22, 1999, Rapkin filed a letter-complaint with OSHA. The complaint alleged that the DEP had violated the whistleblower provisions by taking away her duties and discriminating against her as a result of her having engaged in activity “protected under the employee protection provisions,” that is, the whistleblower provisions of the Clean Air Act, the Clean Water Act, and the Solid Waste Disposal Act. The whistleblower protections of these statutes prohibit an employer from discharging or otherwise retaliating against an employee for filing a complaint alleging misconduct, or for testifying about misconduct. In her letter-brief, Rapkin sought an injunction prohibiting further harassment, intimidation, or retaliation by the DEP, restoration to her former duties, compensatory damages for pain and suffering, and attorney's fees. OSHA notified the DEP of Rapkin's letter and asked the DEP to provide documentary evidence to an OSHA investigator. The DEP, however, responded by asking that Rapkin's complaint be dismissed on sovereign immunity grounds. Later, the DEP successfully sought a declaratory judgment in federal court that sovereign immunity effectively precluded the OSHA investigation, and a preliminary injunction barring OSHA from pursuing its investigation. OSHA appealed this determination to the Second Circuit.

On appeal, the Second Circuit overturned the decision of the trial court. The court was called to interpret the U.S. Supreme Court's decision in Federal Maritime Commission v. South Carolina State Ports Authority , 535 U.S. 743 (2002), in which the Supreme Court barred a federal maritime commission from pursuing a complaint filed by a ship operator, who alleged Shipping Act violations by a state port authority. There, the Supreme Court held that state sovereign immunity extends to federal administrative proceedings prosecuted by private citizens against states that did not waive their sovereign immunity from suit. The Supreme Court noted that principles of sovereign immunity barred not just lawsuits, but anything that “walks, talks, and squawks” like suit, such as an agency's adjudication of an individual's complaint of retaliation. The Second Circuit distinguished the Federal Maritime Commission case from the facts at bar, however. In the case at bar, the Second Circuit observed, OSHA's requests were made pursuant to an investigation, not an adjudication. Thus, a federal agency is free to investigate an administrative claim, the court wrote. The court recognized in light of Federal Maritime Commission, however, that OSHA would be barred from rendering a judgment following its investigation.