SCRANTON – Workers at a meatpacking plant in Northeastern Pennsylvania allege their company’s failure to protect its workers will leave them and others at risk of contracting the coronavirus, while the federal government agencies they are attempting to have intervene complain their inspection process is being “hijacked.”
Jane Does I, II and III filed suit in the U.S. District Court for the Middle District of Pennsylvania on July 22 versus U.S. Secretary of Labor Eugene Scalia, the U.S. Department of Labor and the Occupational Safety and Health Administration, all of Washington, D.C.
The plaintiff workers seek OSHA to take immediate action with respect to their employer, Maid-Rite Specialty Foods, for its alleged failure to institute precautionary measures for the coronavirus, which they say caused 50 percent of the employees to become infected.
The suit states Maid-Rite manufactures prepackaged frozen meat products for schools, colleges and universities, nursing homes and U.S. military bases, but that an absence of rules in the factory for social distancing, hand-washing and personal protective equipment, have led many workers to contract the coronavirus.
All three employees say they fear company retaliation for reporting the issues contained in the complaint, because they added they have seen such retaliation, including firing, dispensed to other employees who have reported injuries and action against Maid-Rite.
The suit states Maid-Rite workers have brought “at least” two formal complaints against the company to OSHA, with of them being an “imminent danger” complaint filed in May. However, the workers added OSHA told them that complaints related to the coronavirus are not an “imminent danger”.
The workers seek to compel OSHA to undertake an inspection of the premises and enforce protective protocols against the coronavirus, yet also taking action against Maid-Rite for its alleged failure to protect its employees against the deadly virus.
On July 28, OSHA and the Department of Labor filed a motion to dismiss the case, saying as of an inspection conducted at the beginning of July, there is no danger at the Maid-Rite factory and the plaintiffs are trying to subvert the federal government’s inspection process.
Per federal law, the motion argued, in order for OSHA to be compelled to step in and take action of its own, the Department of Labor Secretary (Scalia) would need to have had a justifiable reason to act from a Compliance Safety and Health Officer, and then failed to do so.
A circumstance the defendants argued was not the case.
“Thus far, after multiple investigations and ongoing inspections, OSHA has determined that no imminent danger exists at the plant. This court should decline plaintiffs’ extraordinary invitation to use judicial intervention to hijack the secretary’s enforcement discretion and priorities and second-guess OSHA’s judgment as it relates to occupational health and safety conditions at the plant,” the dismissal motion read.
Because OSHA concluded there was no imminent danger at the plant and no rejection from Scalia exists, the defendants say, therefore, there is nothing to put forward for judicial review.
The plaintiffs are represented by Lerae Kroon, Nina Menniti and Samuel Datlof of Friends of Farmworkers Inc. in Pittsburgh and Philadelphia, Adrienne Spiegel; David Samuel Muraskin and Karla Gilbride of Public Justice in Oakland, Calif. and Washington, D.C,; Brianne Michelle Power and David H. Seligman of Towards Justice in Denver; and Anna P. Prakash and Matthew Morgan of Nichols Kaster, in Minneapolis.
The defendants are represented by David Freed, Joseph J. Terz and G. Michael Thiel of the U.S. Attorney’s Office for the Middle District of Pennsylvania in Scranton and Harrisburg, plus Kate S. O’Scannlain, Edmund C. Baird, Michael P. Doyle, Richard T. Buchanan and Oscar Hampton III of the U.S. Department of Labor in Washington, D.C.
U.S. District Court for the Middle District of Pennsylvania case 3:20-cv-01260
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com