PHILADELPHIA – In a matter of first impression, the U.S. Court of Appeals for the Third Circuit has unanimously upheld a lower court dismissal of a lawsuit from workers at a meat processing plant against both the Department of Labor and Occupational Safety and Health Administration – litigation which alleged the agencies refused to enforce COVID-19 pandemic protocols in spite of receiving complaints about the workplace situation, due to OSHA finding no “imminent danger” present.
Jane Does I, II and III first filed suit in the U.S. District Court for the Middle District of Pennsylvania on July 22, 2020 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 sought 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 explained 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, led many workers to contract the coronavirus.
The plaintiffs argued they were forced to work elbow-to-elbow, among several other flagrant breaches of OSHA’s Meatpacking Guidance, including:
• The failure to place any form of barricade between workers;
• The failure to provide workers with masks that Maid-Rite can ensure comply with OSHA’s Guidance;
• The failure to provide workers with additional breaks to wash or sanitize their hands, meaning that workers at Maid-Rite may have to wait hours after coughing or sneezing to cleanse themselves; and
• Maid-Rite’s continued payment of weekend bonuses to workers who do not miss a day of work during the week, incentivizing workers to attend work even when they are sick.
All three employees said they feared 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 stated 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 sought to compel OSHA to undertake an inspection of the premises and enforce protective protocols against the coronavirus, while also taking action against Maid-Rite for its alleged failure to protect its employees against the deadly virus.
On July 28, 2020, OSHA and the Department of Labor filed a motion to dismiss the case, saying as of an inspection conducted at the beginning of that month, there was 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.
In a memorandum opinion handed down on March 30, 2021, U.S. District Court for the Middle District of Pennsylvania Judge Malachy E. Mannion ruled that the Court cannot grant the plaintiffs’ requested relief, due to OSHA previously deciding that no imminent danger exists at the meat processing plant – and thus, Scalia not being in the position to reject any call for an investigation of the working conditions.
“It is apparent that Section 13(d) [of the Occupational Safety and Health Act of 1970] affords employees relief only in those instances where the Secretary has been presented with a finding of imminent danger by an OSHA inspector and has arbitrarily and capriciously rejected the recommendation to take legal action,” Mannion said.
“While plaintiffs balk at this reading of Section 13(d), arguing that the result would be an OSHA inspector, in finding no imminent danger, could cabin the power of the Secretary, this does not change the plain language of the Act.”
However, while Mannion added that the duration of time OSHA had taken to respond to the plaintiffs’ concerns about workplace safety gave the Court pause, the judge reasoned that the plaintiffs should seek relief from the Pennsylvania Legislature.
“The Court shares plaintiffs’ concern that there is no apparent remedy for employees in the event that an OSHA investigator declines to find imminent danger or if the investigation takes an excessive length of time before a finding of imminent danger is made,” Mannion stated.
“Plaintiffs’ valid concerns about continuing to be subject to the apparent imminent danger in the interim are well taken. Ultimately, however, plaintiffs’ remedy lies with the Legislature and not the courts if there is to be a mechanism by which employees can challenge an OSHA investigator’s finding of no imminent danger under Section 13(d).”
Groups representing the plaintiffs, Justice at Work Pennsylvania, Public Justice and Towards Justice, who had argued federal laws permit workers to file for safety and health inspections, then appealed Mannion’s ruling to the Third Circuit.
UPDATE
On Jan. 31, Third Circuit judges Kent A. Jordan, Thomas M. Hardiman, and D. Brooks Smith affirmed Mannion’s ruling in a memorandum opinion, which Smith authored.
Smith and colleagues explained that, contrary to the plaintiffs’ claims otherwise, once the six-month time limit for injunctive relief under Section 662(d) of the Occupational Safety Health Act expires, a cause for private action does not exist unless the matter at issue is one of “imminent danger” as determined by an OSHA inspector.
“Plaintiffs contend, however, that Section 662(d) authorizes them to seek ‘such further relief as may be appropriate’ even after OSHA has completed its enforcement proceedings. Their position is that the ‘such further relief’ language grants employees the ability to challenge OSHA’s determinations on ‘imminent dangers’ in the workplace, divorced from the time constraint applicable to injunctive relief,” Smith said.
“We are not persuaded. Employee-driven relief under Section 662(d) – whether it be a writ of mandamus compelling OSHA to seek an injunction or ‘such further relief as may be appropriate’ – is available only during the pendency of OSHA’s standard enforcement proceedings. Although Section 662(d) does not expressly tie the availability of ‘such further relief’ to the pendency of OSHA’s enforcement proceedings, that is the only plausible reading in light of Section 662’s manifest purpose.”
Smith continued that Section 662 “makes manifest that it is concerned with ‘imminent dangers’ that might exist ‘pending the outcome of an enforcement proceeding’, [which] evinces clear congressional intent to establish in Section 662 a limited mechanism to remedy imminent dangers that cannot await the conclusion of OSHA’s standard enforcement process.”
Smith added that the “broad private right of action that plaintiffs propose would undermine the OSH Act’s agency-driven enforcement structure.”
“We appreciate plaintiffs’ concern that this interpretation of Section 662(d) means that it will provide an avenue for relief in only limited circumstances. Yet it seems to us that such a limitation is exactly what Congress intended in enacting Section 662. The proper reading of Section 662 is that Congress inserted Section 662(d) as a safeguard against a failure by OSHA to address an imminent danger while its own enforcement proceedings are ongoing. By design, the private right of action under Section 662(d) is narrowly circumscribed. And in this case, given that OSHA’s standard enforcement proceedings had concluded, relief under Section 662(d) was unavailable,” Smith said.
The plaintiffs were 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, Juno E. Turner and David H. Seligman of Towards Justice in Denver; and Anna P. Prakash and Matthew Morgan of Nichols Kaster, in Minneapolis.
The defendants were represented by Joseph J. Terz and G. Michael Thiel of the U.S. Attorney’s Office for the Middle District of Pennsylvania in Harrisburg and Scranton, plus Michael P. Doyle, Richard T. Buchanan and Oscar Hampton III of the U.S. Department of Labor in Washington, D.C.
U.S. Court of Appeals for the Third Circuit case 21-2057
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