Finding that the Secretary of Labor provided a sufficient basis from which a jury could infer that the nondiscriminatory reasons proffered by an employer were pretext for discharging two employees who had assisted OSHA in identifying safety hazards at its facility, a federal district court denied its motion for summary judgment. The Secretary offered evidence that one employee was terminated because he took and shared photographs of a machine that caused the injury of a coworker, leading to an OSHA complaint. Regarding the second employee, there was evidence he was terminated because he was the grandfather of the injured employee and provided testimony to OSHA (Acosta v. Lloyd Industries, Inc., December 5, 2017, Goldberg, M.).
The Secretary of Labor brought this action on behalf of two employees, Matthew Spillane and Santa Sanna, who were allegedly wrongfully terminated in retaliation for assisting OSHA in identifying safety hazards at the employer’s plant. According to the Secretary, Spillane was terminated because he took and shared photographs of a machine that caused the injury of a coworker, leading to an OSHA complaint. Sanna was allegedly fired because of his relationship with the coworker who filed the complaint with OSHA and for testifying at an OSHA hearing.
The parties agreed only that the employer operated a small manufacturing business, and that it had two plant locations—one in Florida and one in Pennsylvania. On July 11, 2014, an employee at the Pennsylvania facility suffered a partial amputation of three fingers while using a press brake machine. Three months after the injury, the employee filed an OSHA complaint, which resulted in an OSHA inspection. Following the accident, Spillane took a series of worksite photographs at the request of the injured employee’s attorney. Thereafter, he was fired.
The second employee, Sanna, was the injured employee’s grandfather, and was plant manager of the facility. He provided testimony to OSHA. OSHA issued numerous citations against the employer and proposed penalties of $822,000. Sanna was fired after the employer was fined. Following their terminations, the two employees filed complaints alleging that the employer retaliated against them in violation of the OSH Act.
Reasons for terminations. Regarding Spillane, the employer countered that it terminated his employment for sleeping on the job. As to Sanna, the employer asserted that as plant manager, he directed all plant operations and had broad responsibilities for production, maintenance, and safety, and that he was terminated because his disregard for his duties to oversee OSHA compliance resulted in an OSHA citation.
Retaliation prohibited. Section 11(c)(1) of the OSH Act, prohibits the discharge of employees because they file complaints or otherwise exercise rights afforded by the Act, including informing OSHA about unsafe conditions. In the absence of direct evidence, a plaintiff must first make a prima facie case of retaliation by showing (1) participation in a protected activity, (2) a subsequent adverse action by the employer, and (3) evidence of a causal connection between the protected activity and the adverse action. The burden then shifts to the defendant, who must articulate an appropriate nondiscriminatory reason for its action. Finally, if the defendant satisfies its burden, the plaintiff must then demonstrate that the proffered reason is pretextual.
Causal connection. Here, the employer did not dispute that the Secretary could establish that Spillane engaged in protected activity by taking photographs of the worksite. Nor did it dispute that Sanna engaged in protected activity by giving testimony to OSHA. Further, the employer did not dispute that the two employees suffered an adverse action. Rather, it argued that the Secretary could not demonstrate a causal connection between either of the employees’ protected activity and their termination.
Temporal proximity. As to Spillane, the employer contended that the Secretary offered no evidence of a causal connection between his protected activity and termination. It argued that the Secretary could not demonstrate temporal proximity between when he took photographs (July and August 2014) and when he was terminated (November 2014). Further, it argued that there was no evidence that the employer knew or suspected that Spillane was providing the photographs to the OSHA investigation.
However, the court disagreed with the employer’s contention that it was unsupported or merely speculative that it believed Spillane was taking photographs for the OSHA investigation. Rather, it was undisputed that another employee had advised the employer that Spillane had taken photographs of the exact machine where the employee was injured. It was also undisputed that the injured employee filed an OSHA complaint regarding his injury and that machine. Consequently, a reasonable factfinder could believe that the employer concluded the photographs were being supplied for an OSHA investigation.
Further, while there was no evidence of temporal proximity between when Spillane took the photographs and was fired, he was fired only five days after an OSHA compliance officer showed up to investigate the injured employee’s complaint. Thus, it was entirely possible that the employer fired Spillane because he provided photographs that the employer suspected contributed to the OSHA investigation.
OSHA testimony. As to Sanna, the employer contended that the Secretary could not show a causal connection between his protected activity and termination because six months passed between the time the employer knew of the injured employee’s OSHA complaint (December 2014) and Sanna’s termination (May 2015). However, the court concluded that the Secretary put forward sufficient evidence to suggest that the employer fired Sanna because he provided testimony to OSHA, and/or because his grandson had filed a complaint with OSHA. Thus, a factfinder could conclude that on the same day that the employer was fined, it fired Sanna as the grandfather of the employee who filed an OSHA and because he provided testimony for the OSHA investigation for retaliatory purposes.
Pretext. Nevertheless, the employer asserted that summary judgment was appropriate because it proffered legitimate, nondiscriminatory reasons for the employees’ terminations—Spillane slept on the job and Sanna neglected his duties to oversee OSHA compliance. However, the court concluded that the Secretary pointed to sufficient evidence to demonstrate that the employer’s nondiscriminatory reasons for firing the employees were pretextual. With respect to Spillane, testimony called into question the employer’s credibility. Similarly, the court noted inconsistencies in the employer’s testimony that it fired Sanna due to OSHA safety and health hazards.
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