Labor & Employment Law Daily No new trial for employer that fired two employees after they assisted OSHA investigation into plant accident
Thursday, August 8, 2019

No new trial for employer that fired two employees after they assisted OSHA investigation into plant accident

By Tulay Turan, J.D.

After a five-day trial, the jury had found the employer violated the OSH Act, and the court found sufficient evidence from which the jury could determine the employer retaliated against the discharged employees, one of whom was fired five days after an OSHA inspection.

Denying an employer’s motion for judgment as a matter of law or a new trial after a jury found it violated the OSH Act, a federal district court in Pennsylvania ruled the jury instructions were proper and the verdict was sufficiently supported by evidence where the employer fired two employees who had assisted OSHA in identifying safety hazards after their coworker lost several fingers in an accident at the employer’s plant (Perez v. Lloyd Industries, Inc., August 1, 2019, Goldberg, J.).

Terminations, jury trial and fines. The Secretary of Labor brought claims on behalf of two discharged employees against the employer alleging violations of the OSH Act. The liability phase of the trial began on March 27, 2019, and concluded on April 2, 2019. It was established during the trial that one of the discharged employees—the plant manager—began working for the employer on July 28, 2008. The other discharged employee—an assembler at the plant—began working for the employer on May 7, 2014. In July 2014, a coworker sustained a serious injury that resulted in the amputation of several fingers. In October 2014, the coworker filed a complaint with OSHA, and on November 13, 2014, OSHA inspected the plant. The employer terminated the assembler five days later. The plant manager provided testimony to OSHA in February 2015. OSHA issued citations against the in the amount of $822,000 on May 11, 2015. On that same day, it terminated the plant manager.

Post-trial motions. After a five-day trial, a jury found that the employer violated the OSH Act by terminating the two employees in retaliation for assisting OSHA in identifying safety hazards at the plant. The employer filed this motion for judgment as a matter of law or, in the alternative, a new trial. Specifically, it argued that such relief is proper because (1) the “perception theory” is not valid under OSHA, (2) “third party claims” are invalid under OSHA, (3) the coworker’s complaint to OSHA did not constitute a “protected activity,” and (4) the jury was instructed on an improper causation standard. The employer also argued that there was insufficient evidence to support the verdicts.

Jury instructions—”perception theory.” The court rejected the employer’s argument that the jury instructions improperly allowed for liability under the “perception theory,” noting the Third Circuit has consistently found the theory is a valid theory of liability for retaliation. In addition, the court found the employer’s reliance on a Seventh Circuit case, where neither the employee nor the employer thought a plaintiff’s comment constituted a discrimination complaint, was factually misplaced. Here, the Secretary introduced evidence of retaliation for the engagement in a protected activity, including that the assembler took pictures of the machine that caused the coworker’s injury, the employer knew that he had taken these pictures, an OSHA investigation ensued, and the employer admitted that he told another employee there was a “rat” in the plant feeding information to OSHA.

Assembler’s “protected activity.” The court also denied the employer’s motion regarding the “protected activity” issue. Here, the employer argued the Secretary failed to establish the assembler engaged in a “protected activity” because he did not personally file a complaint with OSHA until after his termination. The Secretary countered that OSH Act regulations provide that a “protected activity” includes actions that “set into motion activities of others which result in proceedings under or related to the Act.” The court found the relevant regulations clearly reflected that the evidence presented to the jury regarding the assembler constituted a “protected activity.” He took pictures of the machine involved in the injury, which led to the OSHA investigation, and the employer acknowledged he knew about the pictures. He testified that “the first thing [OSHA] wanted to look at was that machine” when they arrived for the inspection. In addition, the assembler was terminated five days after the OSHA inspection.

“Third-party claims” theory. The court also denied the employer’s motion regarding the “third-party claims” theory. According to the employer, the jury was improperly instructed on this theory because the injured coworker did not engage in a protected activity while he was an employee as he filed the complaint with OSHA after his termination. The court found the employer’s focus on the injured employee to be misplaced. An employer can be liable under the OSH Act where the individual alleges discrimination (the discharged employees) based on a close relationship with another person (the injured coworker) who either engaged in protected activity or was believed to have engaged in protected activity. Here, it was sufficient that the employer perceived the injured coworker engaged in a protected activity, and both employees were terminated as a result of their relationship with the coworker.

Causation. Regarding the final jury instruction objection, the court found the jury was properly instructed on the element of causation. The jury was instructed that the Secretary had to establish causation by showing either that (1) the protected activity was a substantial reason for the action or (2) the discharge or other adverse action took place because of the engagement in the protected activity. The controlling regulations clearly set out that causation may be established under either test. In addition, circuit courts addressing this issue have held that both the “but for” and “substantial factor” tests are viable pursuant to the regulations.

Sufficiency of the evidence against assembler. Turning to the sufficiency of the evidence challenges, the court found more than sufficient evidence was presented such that the jury could have found that the employer retaliated against the assembler. In addition to the evidence regarding the pictures of the machine, the comment that there was a “rat” in the plant, and the known, close relationship between the assembler and the injured coworker who filed the OSHA complaint, the employer testified he had never disciplined the assembler or warned him about performance in any way. The jury also heard the employer testify that he never provides explanations for terminations, but he later acknowledged on cross-examination that he did in fact discuss concerns with employees before firing them, but did not do so with the assembler, whom he fired five days after the OSHA inspection.

The court also rejected the employer’s argument that there was a legitimate nondiscriminatory reason for terminating the assembler. Although the jury heard testimony that the assembler was fired because he was a bad worker and was sleeping in his car while on the clock, the court found the jury apparently rejected this theory because evidence was also presented that the employer never disciplined him or warned him about performance concerns at any point prior to his termination. The court declined “to disturb the jury’s findings of fact and credibility determinations in light of the substantial evidence presented by the Secretary.”

Sufficiency of evidence against plant manager. Finally, the court found there was more than sufficient evidence for the jury to find that the employer’s proffered reason for terminating the plant manager—i.e., that he failed to satisfy his managerial responsibilities—was pretext. Although the jury heard testimony that the employer thought the plant manager would oversee OSHA compliance, he never asked the plant manager about his knowledge and experience with health and safety when he was hired. The plant manager testified that the employer never asked him to perform safety and health inspections of the plant or ensure that employees were trained on safety and health. In fact, the employer did not tell the plant manager that OSHA was coming to inspect the plant in November 2014.

In addition, the jury heard uncontradicted evidence that the employer was ultimately responsible for safety and health in the plant per the settlement agreement he signed with OSHA. And the jury heard testimony that the plant manager was terminated on the same day OSHA issued $822,000 in citations against the employer. Again, the court declined to disturb the jury’s findings of fact and credibility. Thus, the motion for judgment as a matter of law or, in the alternative, a new trial was denied.

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