Whistles Here, Whistles There, Whistles Everywhere – 8th Circuit Allows Airline Whistleblower to Proceed with State Law Wrongful Discharge ClaimOctober 3, 2017 | John Patterson
In Watson v. Air Methods Corp., No. 15-1900 (8th Cir. en banc, Aug. 31, 2017), the Eighth Circuit Court of Appeals reversed its own precedent and held that a former employee may bring a state law wrongful discharge claim against an “air carrier,” notwithstanding the pre-emption provision contained in the Airline Deregulation Act (“ADA”).
Plaintiff in Watson was an in-flight air medic employed by defendant. Over the course of his career, he made a number of complaints to his employer, alleging violations of various federal aviation safety regulations, including: a pilot making cell-phone videos during flight; members of a medical crew text messaging during critical phases of flight; a pilot attempting to take off with frost and ice on the aircraft; and another pilot making unnecessary “run-on landings.” After he was fired by the air carrier, Plaintiff claimed he was dismissed in retaliation for making these complaints, and filed suit in Missouri state court for the common-law tort of wrongful discharge in violation of public policy.
The air carrier removed the case to federal court and then moved to dismiss the state law claim based on the pre-emption provision of the ADA. The district court, relying on the Eighth Circuit’s decision in Botz v. Omni Air International, 286 F.3d 488 (8th Cir. 2002), dismissed plaintiff’s wrongful discharge claim. Plaintiff appealed, and a Court of Appeals panel upheld the district court. Plaintiff then sought en banc review, by the full Court. Somewhat surprisingly, the full court overturned its own decision in Botz and held that a state law claim for wrongful discharge was not preempted by the ADA, despite the existence of a federal whistleblower protection scheme for airline employees.
Defendant argued that if plaintiff’s claims were not pre-empted by the ADA, then state courts would need to adjudicate the meaning of the federal regulations, thus creating a patchwork of differing regulatory standards for air carriers to deal with. The Eighth Circuit disagreed, noting that state courts do not have federal regulatory enforcement power, that not all claims related to air “safety” are preempted by the ADA anyway (e.g. personal injury claims), and that the federal aviation whistleblower protection program acted in conjunction with state whistleblower claims, rather than superseding such claims. The Eighth Circuit stated that the Third, Ninth and Eleventh Circuits had reached the same conclusion.
As a result of the holding in Watson, “air carriers” (as defined in the ADA) doing business in the Eighth Circuit may now have to defend whistleblower-style claims from ex-employees, on both state and federal fronts.
In Bierman v. Violette,the Missouri Court of Appeals for the Eastern District, reestablished that yes, employees, you may owe duties to your co-employees that are separate and distinct from those duties the employer owes to its employees. The Court of Appeals reversed trial court’s dismissal of a negligence claim against a co-worker, citing this distinction.
Plaintiff Bierman and Defendant Violette were co-workers at a bar and grill, who were working together when the Plaintiff was injured. Specifically, Plaintiff alleged that she was injured after entering “a lofted space accessible only through the use of a twelve-foot, A-frame ladder” that was locked into place, which the Defendant knew or should have known the Plaintiff was doing. Then, while the Plaintiff was still within the lofted space, the Defendant unlocked, closed and moved the ladder for a time and then returned the ladder to the place where it was accessible again to Plaintiff. Plaintiff alleged that the Defendant failed to properly secure and lock the ladder in its previous position when it was moved, causing it to collapse as Plaintiff descended down the ladder. This resulted in injuries to Plaintiff after she fell, struck a concrete countertop and landed on the ground.
The Defendant argued that the claim against her was legally insufficient, because Plaintiff’s allegations did not “establish an independent duty of care owed by Defendant, which is separate and distinct from their Employer’s non-delegable duty to provide a safe workspace.” The trial court agreed and dismissed the Petition, and Plaintiff appealed. The Court of Appeals postponed oral argument, because then pending before the Missouri Supreme Court were two cases - Peters v. Wady Industries, Inc. and Parr v. Breeden, both of which involved the legal standards for pleading co-employee liability.
In both Peters and Parr, the Missouri Supreme Court affirmed the decisions in favor of the defendant/co-employees where the plaintiffs failed to establish that the defendants owed duties to the plaintiffs that were separate and distinct from the respective employer’s nondelegable duty to provide a safe workplace. Although the Peters and Parr cases were, on their face, unfavorable to Plaintiff Bierman, both Plaintiff Bierman and the Court of Appeals relied on aspects of the Missouri Supreme Court decisions to differentiate and ultimately reverse the trial court’s decision in favor of the Defendant/co-employee; thus, resulting in a different outcome that the Peters and Parr decisions.
The Bierman Court, citing Peters and Parr, first noted that the 2005 amendments to the Workers’ Compensation Law gave immunity against tort claims for work-related injuries only to employers; thus, co-employees are not immune and remain at risk for such liability (i.e. plaintiff can pursue a common law negligence claim against her co-employees if her allegations are adequately pled).
In Missouri, a plaintiff asserting allegations of negligence must establish that:
- the defendant had a duty to the plaintiff;
- the defendant failed to perform that duty; and
- the defendant’s breach was the proximate cause of the plaintiff’s injury.
In Bierman, the Court of Appeals analyzed whether the first element, “duty,” had been adequately pled. This question turned on what Missouri recognized as a duty owed by a co-employee to another at common law, versus what duty is owed by an employer to its employees. “An employee is liable to a third person, including a co-employee, for breaching a legal duty owed independently of any master-servant relationship.” An employer, on the other hand, owes its employees certain non-delegable duties with respect to safety and the employer, by itself, is liable for the breach of such a non-delegable duty. Thus, a co-employee cannot be held liable for breach of an employer’s non-delegable duty, which the employer alone owes. The duty owed by the co-employee must be separate and distinct from that of the employer.
What are an employer’s non-delegable duties, which cannot be separately imposed upon a co-employee? The Bierman court set forth the following, based on Peters and Parr:
- the duty to provide a safe workplace, including a duty to ensure that instrumentalities of the workplace are used safely;
- the duty to provide safe work appliances, tools, and equipment;
- the duty to give warning of dangers of which an employee might be reasonably expected to be ignorant of;
- the duty to provide a sufficient number of fellow employees; and
- the duty to make and enforce rules for the conduct of employees to ensure the work is safe.
When does an employer not have a duty to protect its employees and, therefore, when can a co-employee’s duty(ies) arise? As set forth in Bierman, “[e]xcept in the cases in which the employer is itself directing the work in hand, its obligation to protect its employees does not extend to protecting them from the transitory risks which are created by the negligence of a co-employee carrying out the details of that work.” In other words, the distinction revolves around how the co-employee is carrying out the details of his or her own work. For example, is a co-employee misusing equipment, such as a hose, where the co-employee uses the equipment in a manner that is not approved by the employer and causes injury to a co-employee? Or is the employer allowing defective equipment to remain on the property that results in injury to its employees?).
The Bierman Court determined that the Plaintiff’s injury was alleged to have occurred because of the Defendant/co-employee’s negligent use and manner of handling the ladder (i.e. how the co-employee was carrying out the details of his or her own work) and not because the employer allowed a defective product to remain in use on the property (i.e. the workplace was not unsafe). As a result, the duty alleged in Plaintiff’s Petition was found to be a separate and distinct duty owed by the Defendant/co-employee from that of an employer’s non-delegable duties to provide a safe workplace. The Bierman Court further held that the negligence of the Defendant did not need to be the sole cause of plaintiff’s injury, “as long as it is one of the efficient causes thereof, without which injury would not have resulted.” Therefore, the Court of Appeals reversed and remanded the case back to the trial Court, allowing Plaintiff to attempt to prove her negligence claim against her co-worker.
The Bierman case’s final outcome is presently unknown. However, this case does teach some simple, but important lessons for plaintiffs, defendants, and those in the business world:
- When a workplace negligence claim is asserted, language matters. The wording of a claim by a plaintiff, or a defense by a defendant, needs to adhere to the case law recently articulated by the Missouri appellate courts.
- Workplace safety is not just the employer’s concern. Co-workers must pay attention and take reasonable, precautionary action to ensure the safety of those around them.
An Ounce of Prevention is Worth a Pound of Cure: A Practical Guide to Reducing the Risk of a Data BreachDecember 19, 2016
- Access to confidential and sensitive information should be restricted: Limit access to sensitive data or protected information to those employees whose job function requires access to the information.
- Vendors must be screened: A vendor may have access to or handle an organization’s sensitive data as part of the service it provides. The organization must ensure that the vendor: (a) has security measures in place to protect that data, and (b) is using the organization’s data for no other purpose than to provide the services for which the vendor was retained.
- Employee training and restrictions: Organizations should implement policies and practices to ensure data security, and train all employees, so they are aware of the organization’s rules and expectations. For example, employees of each organization should be trained on:
- the types of information considered sensitive or private;
- correct procedures for storing and deleting sensitive information;
- reporting of suspicious emails;
- passwords (they should be strong, never duplicated, and changed frequently).
- Mobile Devices: Organizations that permit employees to use personal mobile devices for business-related purposes should consider restricting the manner in which the devices are used to access the organization’s data. For example, software can be downloaded on a personal mobile device which separates the business-related data from the personal data, and permits an organization to scrub the device remotely in the event the device is lost or stolen.
- Secure Networks and Encryption: Organizations should encrypt sensitive or private data, utilize firewall protection in their networks, and ensure that Wi-Fi access is always secure and password-protected.
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The BSCR Employment Blog examines topics and developments of interest to employers, Human Resources professionals, and others with an interest in recent legal developments concerning the workplace. This blog will focus on Missouri and Kansas law, and on major developments under federal law, and at the EEOC and NLRB. Learn more about the editor, David M. Eisenberg, and our Employment & Labor practice.
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