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Acosta v. Dura-Fibre LLC

United States District Court, E.D. Wisconsin

May 30, 2018

R. ALEXANDER ACOSTA, Secretary of Labor, United States Department of Labor, Plaintiff,
DURA-FIBRE LLC, Defendant.



         The Occupational Safety and Health Act (OSH Act) prohibits employers from discharging or discriminating against an employee for engaging in activity protected by the Act. See 29 U.S.C. § 660(c)(1). Plaintiff R. Alexander Acosta, Secretary of Labor, brought this action against Defendant Dura-Fibre LLC, alleging Dura-Fibre violated the OSH Act's anti-retaliation provisions by punishing its former employee, Tim Jacobs, for reporting injuries to the company and thus interfering with Jacobs' right to report under the Act. Federal jurisdiction exists pursuant to 28 U.S.C. § 1331. The case is before the court on the parties' cross motions for summary judgment. For the following reasons, both summary judgment motions will be denied.


         A. Dura-Fibre's Accident Reporting/Investigation Plan

         Dura-Fibre, LLC, located in Menasha, Wisconsin, manufactures industrial packaging and specialty laminated paperboard products. Pl.'s Proposed Findings of Fact (PPFOF) ¶ 2, ECF No. 30. In an effort to improve safety, Dura-Fibre instituted a multi-component safety program comprised of an accident reporting plan, training on safety in the workplace, audits to ensure compliance with safety procedures, and a progressive discipline program to address safety and reporting violations. Def.'s Proposed Findings of Fact (DPFOF) ¶ 4, ECF No. 27. The company's employee handbook also explains Dura-Fibre's dedication to a safe workplace. The handbook provides: “It is the company's responsibility to provide you with a safe place to work and to give you the necessary safety training so that you can avoid accidents to yourself or to others. It is your responsibility to work safely.” ECF No. 33-14 at 10.

         Under Dura-Fibre's Accident Reporting/Investigation Plan, if an employee is injured or almost injured at work, he must report the injury or “near miss.” Dura-Fibre instituted this plan 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. PPFOF ¶ 33. The plan requires 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. It defines 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.” ECF No. 32-2 at 2. Dura-Fibre requires that employees report all injuries, even if the employee does not consider the injury to be serious, reasoning that an employee may be hurt more than he initially believes. DPFOF ¶ 11. Any employee that fails to report an accident or near miss in a timely manner is subjected to discipline up to and including termination. Id. ¶ 14.

         Once an employee reports an occurrence to his supervisor, the supervisor must decide if the incident was an accident or a near miss by determining whether the employee was injured. Although the plan does not define “injury” and “physical harm, ” in deciding whether an employee is injured, the supervisor considers whether the employee is bleeding, limping, favoring a body part, or hurting. If the supervisor determines that an accident occurred, as a result of his finding that the employee suffered physical harm or injury, he must investigate the situation to determine why the accident happened, where it occurred, and if there are any trends related to the accident. After the supervisor completes his investigation and fills out an investigation form, Dura-Fibre's safety coordinator reviews the completed form. Then the Health and Safety Committee, which is comprised of two representatives of management and at least two union members, assesses the accident by reviewing the incident report and accident investigation form. After its assessment, the Committee completes its own Safety Incident Report and determines whether the employee should receive disciplinary points in accordance with Dura-Fibre's 24-point disciplinary program.

         Under the disciplinary program, which is set forth in the labor agreement between Dura-Fibre and the United Steelworkers Local 2-432, 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.” Although an employee may gain points back if he does not commit an infraction during a three-month period, he may ultimately be terminated for “just cause” if he accumulates 24 points. In deciding whether to assess disciplinary points, the Committee considers a number of factors, including whether the employee has a past history of unsafe acts, the severity of the employee's injury caused by the unsafe act, and other contributing factors. As relevant to the instant case, an employee who fails to report an on-duty accident or injury to a supervisor before leaving work will receive eight disciplinary points. An employee who commits an unsafe act will be assessed between four to eight disciplinary points as determined by the Health and Safety Committee.

         The Accident Reporting/Investigation Plan does not define the phrase “unsafe act, ” because the company believes no definition is required. PPFOF ¶ 21. The Committee is nevertheless more likely to consider conduct unsafe under the disciplinary policy if the employee injures himself in performing an act he otherwise frequently engages in. Id. ¶ 29. In other words, an employee would generally not be disciplined for timely reporting an “unsafe act” that did not result in injury and thus was considered a “near miss, ” whereas an employee would more likely be disciplined if he timely reported that the same “unsafe act” resulted in injury. Id. ¶ 40. The Secretary notes that from May 20, 2011 through May 20, 2014, Dura-Fibre did not assign disciplinary points to an employee for committing an unsafe act where no injury occurred. Id. ¶ 27. If the Committee decides to assess disciplinary points, Dura-Fibre issues the employee a discipline slip that describes the incident, the points ultimately assessed, and the section of the contract the employee violated.

         Given the uncertain definition of the term “unsafe act” and the disciplinary points employees receive for committing an “unsafe act, ” employees are naturally reluctant to report any injury to themselves. In theory, almost any act that results in a workplace injury can qualify as an unsafe act. The current president of Dura-Fibre has defined “unsafe act” as “any action by an employee that either resulted in, or could have resulted in, themselves or another employee being harmed.” Id. ¶ 25. Thus, employees who suffer injuries on the job find 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 Jacobs' claim arises.

         B. Jacobs' Injury Reporting

         Jacobs began working for Dura-Fibre as a laminator machine lead operator in 2008. He had worked for Dura-Fibre's predecessor, Menasha Corporation, from 1985 to 2004. As lead operator, Jacobs was responsible for the overall production of the laminating machine and oversaw four or five other employees who ran the machine. He was also required to notify his supervisor when any employee reported an accident or near miss to him. Dura-Fibre valued Jacobs as an employee because he knew how to run the machines better than most other operators. DPFOF ¶ 53.

         On May 20, 2013, Steven Wilz informed Jacobs that he “tweaked his shoulder.” Id. ¶ 56. Jacobs asked if Wilz wanted to fill out an accident report. Wilz reported that he did not believe submitting a report was necessary because his shoulder did not hurt and he felt fine. Wilz continued to work the rest of his shift without complaints about his shoulder, and he did not clutch or favor his shoulder. The next morning, Jacobs asked Wilz about the condition of his shoulder. Wilz explained that his shoulder had stiffened up overnight and was sore, but he was not concerned and continued to believe that the incident did not need to be reported. Jacobs nevertheless decided to complete an incident form. He noted that Wilz “strained” his right shoulder and that no medical treatment was required. Jacobs gave the completed form to Jamie Gonnering, Dura-Fibre's human resources manager and safety manager. Gonnering and Scott Gehl investigated the incident. Jacobs' supervisor, Scott Blair, consulted with Gonnering and Director of Operations Luke Benrud and concluded Dura-Fibre would issue Jacobs and Wilz eight points for the untimely reporting of the injury. This assignment of points increased Jacobs' point total to twenty disciplinary points.

         On May 22, 2013, Blair gave Jacobs a discipline slip and explained that he had been assessed eight disciplinary points for his failure, as lead operator, to timely report injuries. Shortly thereafter, Jacobs reported that he had twisted his right ankle earlier in his shift when he stepped off the last step in a flight of five stairs that he used hundreds of times throughout the day. Although Jacobs did not consider himself injured, he recognized that he was walking gingerly on the ankle and reported the incident because he did not want to “get in trouble” for failing to notify his supervisor of the incident by the end of his shift. PPFOF ¶ 93. Blair filled out an incident report, recorded that Jacobs sprained his ankle, identified the incident as a “near miss accident, ” and opened an investigation into the incident to determine if Jacobs committed an unsafe act. Dura-Fibre asserts that even though Blair indicated in his report that the incident was a near miss, he considered it an accident from the beginning.

         As part of the investigation, Blair asked Jacobs what had happened, but did not talk to any witnesses. The Secretary asserts Jacobs held the handrails when he went down the stairs, he did not rush or run down the stairs, he did not skip stairs, and he was not horse playing. Blair determined that when “[c]oming off the last step Tim stepped awkwardly on his right ankle, twisting it.” ECF No. 33-19. He concluded Jacobs could prevent injury in the future by planting “his foot on [the] ground more squarely when coming off stairs or any locations off ground floor.” Id. Jacobs, Blair, and Gonnering signed the incident report. The Safety Committee, comprised of Blair, Gonnering, and two union employees, reviewed the incident report on May 22, 2013 and assessed four disciplinary points to Jacobs for committing an unsafe act. The two union employees did not provide any input during the meeting regarding the disciplinary points. In reaching its conclusion, the Committee considered a previous, unrelated incident in which Jacobs injured his back by tripping over a hose another employee had placed on the floor. It also noted that Jacobs had experience going up and down the stairs and that Jacobs' ankle injury required first aid care, even though he never received medical treatment. Although the Accident Reporting/Investigation Plan requires that the Safety Committee ...

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