By Mark A. Lies, IIAdam R. Young, and Craig B. Simonsen

Seyfarth Synopsis: A recent Eastern District of Wisconsin case held that an OSHA 11(c) retaliation claim will survive summary judgment where the employer failed to comply with its own investigation procedures.

In Acosta v Dura-Fibre, No. 17-C-589, 27 OSHC 1179 (ED Wis. May 30, 2018), under the employer’s, Dura-Fibre, LLC’s (Employer), Accident Reporting/Investigation Plan (Injury Reporting Policy), if an employee is injured or almost injured at work, he must report the injury or “near miss.”  The Employer instituted the Injury Reporting Policy to emphasize timeliness in reporting injuries and to create a “near miss” program to increase reports of unsafe acts that did not result in injury.   The Injury Reporting Policy required that an employee notify a supervisor of an accident or “near miss” as soon as possible, or by the end of the employee’s shift.  The Injury Reporting Policy defined accident as “any occurrence that led to physical harm or injury to an employee and/or led to damage of company property” and near miss as “any occurrence that did not result in an accident but could have.”

The Employer required that employees report all injuries, even if the employee did not consider the injury to be serious.  Any employee that failed to report an accident or near miss in a timely manner could be subjected to discipline up to and including termination.  After the company’s assessment of the injury report, a “Safety Incident Report” would be prepared that determined whether the employee should receive disciplinary points in accordance with the Employer’s 24-point disciplinary program.  Under the disciplinary program, employees may be assigned a designated number of points for violations of the company’s rules and policies, such as failing to report an injury to a supervisor by the end of his shift, failing to use safety equipment, or committing an “unsafe act.”

The Injury Reporting Policy does not, though, define the phrase “unsafe act.” With the uncertain definition of the term “unsafe act” and the disciplinary points employees could receive for committing an “unsafe act,” the Secretary argued that employees were naturally reluctant to report injuries or illnesses they sustained.

The Court noted that as such, employees who suffered injuries on the job found themselves in a classic “catch 22”: “if they are injured at work, they must report the injury to a supervisor or face discipline, but if they do report an injury, management may well conclude the injury resulted from their own unsafe act for which they will also face discipline. Either way, the employee risks discipline.”  It is in this context that this claim arises.

The Secretary asserted that the Employer violated section 11(c) the OSH Act when it retaliated against the Employee by assessing him disciplinary points after he reported injuries on two separate occasions, and then ultimately terminated him under its disciplinary policy.

The Employer did not dispute that the Secretary had satisfied the first and second elements of the prima facie case.  The Employee engaged in protected activity when he reported to company management that he injured his ankle and another employee injured his shoulder. The Employee suffered three adverse actions in the form of disciplinary points for the late reporting of the other employee’s injury, and for engaging in an unsafe act in relation to his own injury, as well as termination of his employment.

The Court found sufficient evidence of pretext from two sources.  First, the Company did not discipline employees who reported “unsafe acts” relating to near misses.  Accordingly, the Court concluded that injured employees were allegedly more likely to be disciplined and thereby deterred from reporting .  Second, the Court noted that the Employer failed to follow its own accident investigation procedures.  The Court found a  technical “apparent deviation” from the procedure enough to be a triable issue, and denied summary judgment.  The case will proceed to trial.

Accordingly, employers need to maintain reporting policies with regard to all unsafe acts, near misses, and accidents.  Employers must consistently investigate accidents and enforce all safety rules.

For more information on this or any related topic please contact the author, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Teams.