Background: The plaintiff, Jocelyn Baetge-Hall, brought an action against the defendants, General Dynamics Corporation ("GDC") and American Overseas Marine Corporation ("AMSEA") alleging retaliatory discharge under maritime law and intentional infliction of emotional distress.

Prior to her termination, the plaintiff served as a chief officer overseeing cargo operations aboard a vessel entitled the MV/2nd Lieutenant John P. Bobo ("the John P. Bobo"). The ship was operated by the defendants for the United States Navy's Military Sealift Command (the "Sealift Command").

The plaintiff maintained that when she was dispatched to the John P. Bobo, AMSEA was aware that she did not have the anthrax and smallpox shots prescribed by the Sealift Command. Medical personnel on the ship advised her not to get the shots. Thus, when the shots were offered, she got a medical deferment.

The defendants filed a motion to dismiss the plaintiff's complaint. On July 2, 2007, the Court granted in part, and denied in part, this motion to dismiss. The Court dismissed the intentional infliction of emotional distress claim but held that the plaintiff stated a claim for retaliatory discharge under maritime law.

Subsequently, the defendants moved to remove General Dynamics from the litigation. The Court granted the motion.

AMSEA, the sole remaining defendant, moved for summary judgment on the retaliatory discharge claim. AMSEA contended that the plaintiff's claim was preempted by section 301 of the Labor Management Relations Act, and she failed to allege a public policy violation sufficient to sustain a wrongful discharge claim.

The plaintiff was subsequently informed that without the requisite Sealift Command vaccinations, she would have to leave the ship. AMSEA paid for the plaintiff's return to the United States and had her sign a form that her departure was by "mutual consent." If the plaintiff received the requisite vaccinations, she could return to the ship.

Plaintiff found out that another crew member had faked his vaccinations. She reported this falsity and obtained her own medical vaccinations. Upon contacting the defendant, they stated her situation had changed and by her "refusal" to get the vaccination shots, she had put others in risk of danger. The plaintiff filed an opposition to AMSEA's motion for summary judgment.

Issue: Whether the Court will grant AMSEA's motion for summary judgment.

Held:
To prevail on a tort claim for discharge in violation of public policy, an employee must show (1) a clearly defined public policy protected an activity; (2) the policy was undermined by discharging the employee; (3) the discharge was the result of engaging in the protected activity; and (4) there was no other justification for the discharge.

The plaintiff claimed AMSEA terminated her because she declared her intent to seek legal recourse to be reinstated. There was no evidence that the plaintiff planned, or expressed an intent to file a Jones Act personal injury action against AMSEA.

The plaintiff cannot establish that she was planning to exercise rights that already existed under maritime law.  She cannot point to any existing maritime law protection against adverse employment action in retaliation for a protest against alleged discriminatory treatment.

Conversely, the plaintiff can establish a prima facie case for retaliatory discharge under maritime law for whistleblowing. Terminating an employee for allegedly stating her intent to notify federal authorities about dangerous or harmful activities raised significant public policy concerns.

The alleged facts presented significant public policy concerns. The plaintiff claimed she was pressured to not correct false records about other crew members' vaccinations. There was a clearly defined public policy protecting whistleblowing and the plaintiff alleged she was terminated for engaging in this protected activity. The plaintiff has therefore established a prima facie case of retaliatory discharge.

For the Court to not grant summary judgment there must be no genuine issues of material fact. The parties disputed whether the plaintiff refused or was told not to take the vaccinations. A factfinder could reasonably resolve the disputed facts in the favor of the non-movant. Thus, the defendant's motion for summary judgment was inappropriate.

Comments:

In addition to injury, employment insecurity is particularly problematic for mariners. Absent specific contractual provisions, seamen are at-will employees whose employment is terminable at will by either party.

Employees who work without a contract are particularly vulnerable to the preconceptions and misapprehensions that often guide the illegal, unethical, or bad faith practices of some employers.

Steve Gordon
http://www.offshoreinjuries.com