Preview
JOSHUA S. FALAKASSA (SBN: 295045)
1 FALAKASSA LAW, P.C.
2 1901 Avenue ofthe Stars Suite # 450
Los Angeles, Caiifomia 90067
3 Tel.: (818) 456-6168; Fax: (888) 505-0868 FlSD/ENDORp^
Email: josh@falakassalaw.com
4
JUL 27 2022
ARASH S. KHOSROWSHAHI (SBN: 293246)
5
LIBERTY MAN LAW, P.C.
6 1010 F Street, Ste. 300
Sacramento, Caiifomia 95814
7 Tel.: (916) 573-0469; Fax: (866) 700-0787
Email: ash@libertymanlaw.com
8
9 Attomeys for Plaintiff,
SAJIDA ZAMAN
10
SUPERIOR COURT OF CALIFORNIA
11
COUNTY OF SACRAMENTO
12
13 SAJIDA ZAMAN, CASE NO.: 34-2019-00252121
RESERVATION ID: 2644651
14 Plaintiff,
vs. DECLARATION OF ARASH
15 KHOSROWSHAHI IN SUPPORT OF
LIQUI-BOX CORPORATION, and DOES 1 PLAINTIFF'S OPPOSITION TO
16 through 20, inclusive. DEFENDANT LIQUI-BOX
17 COROPRATION'S MOTION FOR
Defendants. SUMMARY JUDGMENT AND/OR
18 SUMMARY ADJUDICATION OF
ISSUES.
19
BY FAX
Date: August 10, 2022
20 Time: 1:30pm
21 Dept.: 53
Trial Date: September 12, 2022
22
I, ARASH KHOSROWSHAHI, hereby declare as follows:
23 1. I am an attomey duly licensed to practice law in the State of Caiifomia. My State Bar
24 Number is 293246.1 represent Plaintiff Sajida Zaman in the above-referenced matter. I am over 18
25 years of age and have personal knowledge of the facts stated herein to which I can competently
26 testify.
27 2. I conducted the deposition of Defendant Liqui-Box Corporation's ("Defendant")
28
1 Chief Human Resources Officer Ms. Angela Kenyon ("CHRO Kenyon") as Defendant's Person
2 Most Qualified ("PMQ"). A true and cortect excerpted copy of CHRO Kenyon's deposition
3 transcript is attached herein as Exhibit K l .
4 3. CHRO Kenyon testified to the following matters:
5 a. Janene Whitney, Defendant's Manager of Human Resources, emailed CHRO
6 Kenyon and Chief Operating Officer ("COO") Mr. Andrew McLeland the results
7 of PlaintifFs US HealthWorks medical examination as part of Plaintiff s workers
8 compensation claim. Importantly, Whitney ertoneously reported the following to
9 Defendant:
10 "Sajida was evaluated this aftemoon and diagnosed with a left knee and
11 hamstring sprain.. .The exact date of injury is unknown because she did not report
12 the injury until today.. .When I asked Sajida why she did not report the injury she
13 said she thought the pain would go away because she was taking ibuprofen.
14 Sajida said that her pain continued so she went to the ER on 12/31/18. She told
the doctor the injury was work-related..."
15
(See Exhibit K l , p. 42, lines 18-20, and Exhibit 6 contained therein.)
16
b. CHRO Kenyon acknowledged that all "4 Panel Reviews" use the document
17
entitled "Disciplinary Review." (Exhibit K l , p. 59, lines 5-11.)
18
c. As to the immediacy requirement of the CSB policy, CHRO Kenyon testified
19
that if an employee delayed just one day in reporting an injury as slight as a
20
papercut, they would be terminated:
21
"The Witness:...We actually use this one in training with our employees, and
22
specifically mention if you get a paper cut, that, yes, you are supposed to report
23
that immediately...And a day later, would be a violation of a critical safety
24
behavior.
25
Q By Mr. Khosrowshahi: And they would be terminated?
26
A Yes, sir."
27
(Id., p. 115, lines 13-25.)
28
1 d. CHRO Kenyon further testified that Defendant provided Plaintiff one week of
2 leave as an accommodation for her injury before terminating her for the purported
3 violation ofthe CSB policy. (Id. p. 138, lines 21-24.)
4 e. CHRO Kenyon further identify COO McLeland as a managing agent who helped
5 create the Critical Safety Behaviors ("CSB") policy:
6 "Did anyone, other than you, work with you to create the Critical Safety
7 Behaviors Policy?
8 A Yes.
9 Q Who was that person?
IQ A I worked with our chief operating officer, and at the time our global safety
JI manager.
12 Q Okay. Why did you include the chief operadng officer?
12 A Because he is also very familiar with OSHA standards and requirements.. .and
because he is one of the senior leaders of the company that oversees all of our
operations globally."
15
(Id., p. 155, lines 16-24)
16
f CHRO Kenyon further testified as to the meaning of the "immediate" reporting
17
requirement of incidences in the CSB policy:
18
"Q Okay. What does the word 'immediately' mean in that sentence?
19
A It means as soon as you realize that you have suffered a workplace injury. So,
20
you know, obviously, you can't do something within 10 seconds and gofindyour
21
supervisor, but within reason. As soon as you realize you have suffered a
22
workplace injury or illness, you are to report it to your supervisor or management
23
team.
24
25
Q Okay, what if it took them a week to realize it?
26
27
A Again, if they don't realize it's a workplace injury for a week, as soon as they
28
1 realize that it is a workplace injury, they should report it.
2 Q By Mr. Khosrowshahi: What about a month?
3 A If they don't realize it is a workplace injury until a month later, then they should
4 report it as soon as they realize it.
5 Q What if they are not sure if it is a workplace injury or not?
6 A If it is something that requires medical attention, and they assume or they feel
7 that they may have been injured in the workplace, they should report it
8 (Id., p. 94, lines 20-25; p. 96, lines 9-25, p. 97, line 1.)
9 "Q By Mr. Khosrowshahi: So if an employee came to you and said, hey, I found
2Q out yesterday I had a workplace-related injury and I'm telling you about it today,
JI and I could have called you yesterday, but I'm telling you now today, it is a one-
12 day delay, I apologize.
j2 A If they could have told us yesterday, then it is a violation of critical safety
behaviors policy and they would be terminated."
(Id.p. 101, lines 5-13.)
15
"Q And if they had waited one day to report that they bumped into a door, and
16
they had waited one day to report that incident, would that be a violation that
17
would subject them to termination?"
18
19
The Witness: Yes, because they knew at the time they bumped into the door that
20
it could potentially be a workplace injury."
21
(Id., p. 108, lines 5-13.)
22
g. CHRO Kenyon further testified that termination was the only form of discipline
23
that could be acted upon for violations ofthe CSB policy:
24
"Q Okay. So in essence, if an employee violates the critical safety behaviors
25
policy, the discipline you could choose is out of your hands. You can only go
26
termination, is that correct?
27
A Yes."
28
1 (Id., p. 83, lines 5-9.)
2 4. Pursuant to Caiifomia Rules of Court, Rule 3.1113(i) and Local Rule 11.1(c),
3 attached as Exhibit K2 is a tme and cortect copy of Acosta v. Dura-Fibre LLC, (E.D. Wise. 2018)
4 2018 WL 2433589. Attached as Exhibit K3 is a tme and cortect copy of Villiarimo v. Aloha Island
5 Air, Inc. (9th Cir. 2002) 281 F.3d 1054. Attached as Exhibit K4 is a tme and correct copy of
6 Perez v. Pacific Ship Repair & Fabrication, Inc. (W.D. Wash. 2015) 2015 WL 7292594. Attached
7 as Exhibit K5 is a tme and cortect copy of Humphrey v. Memorial Hospitals Ass'n (9th Cir. 2001)
8 239F.3d 1128.
9 I declare under penalty of perjury that under the laws of the State of Caiifomia that the
10 foregoing is tme and cortect.
11 Executed on this 27* Day of July 2022, at Sacramento, Caiifomia.
12
13
14
15 Arash Khosrowshahi
Attomey for Plaintiff
16 Sajida Zaman
17
18
19
20
21
22
23
24
25
26
27
28
EXHIBIT K l
CERTIFIED COPY
1 SUPERIOR COURT OF CALIFORNIA
2 COUNTY OF SACRAMENTO
3
4 SAJIDA ZAMAN, Case No.
34-2019-00252121
5 Plaintiff,
6 vs.
7 LIQUI-BOX CORPORATION,
and DOES 1 t h r o u g h 2 0,
8 Inclusive,
9 Defendants.
10
11
12
VOLUME I
13
Videotaped D e p o s i t i o n , o f ANGELA KENYON
14
January ,28, 2021
15
16
17
18
19,
20
;2i
^2^
;23
24 C h e r y l L . Marquis, CSR, ;Nd^ 6731
469958 BARKLEY
25 SINCE C.oTo rt:R e P.O ir. t a r:s
1972 barkley.cdni
(310) 207-eOOO t o s Angeles (415) 433-5777 San Francisco (949) 955^0400 Irvine (858) 455-5444 San Diego
(310) 207ra000 Century City (408) 885-0550 San Jose (760) 322-2240 Palm Springs (800) 222-1231 Carisbad .
(916)'g22-57T7 Sacramento (800) 222-1231 Martinez (702) 366-0500 Las Vegas (800)222-1231 Monterey
(951) eas-oede Riverside, (818) 702-0202 Woodland Hills (702) 366.0500 Henderson (516) 277-9494.GardonCity
(212)ffi)fr-8S00New YorkCity (347)821-4611 Brooltlyn (518) 490-1910 Albany (914) 510-9110~WHte>laine
(312) 379-5566 Cliicago 06+U8OO 222.12^ Paris 00+1 *tiSia232.1231 Diiba) 001+1+800 222 1231 Hong Kong
11,17 1 Q Okay. Were there any d i f f e r e n c e s between t h i s
2 status -- work status report and the previous work
3 status report we showed you as E x h i b i t 4?
11:18 4 MR. JONES: Hold on one second, please. Calls
5 f o r medical testimony. The documents speak f o r
6 themselves. I t i s vague and ambiguous. And you are
7 asking her t o draw conclusions. Calls f o r
8 inappropriate expert witness testimony. And she's not
9 been designated as a PMQ on these issues.
11:18 10 Q BY MR. KHOSROWSHAHI: Strike that. Let me ask
11 i t t h i s way.
11:18 12 Did t h i s second work status report influence
13 Liqui-Box's decision t o terminate Ms. Zaman?
11:18 14 A No. The decision had already been made based
15 o f f o f the i n v e s t i g a t i o n i n t o her workplace i n j u r y and
16 f a i l u r e t o report.
11:18 17 Q Okay.
11:19 18 MR. KHOSROWSHAHI: Now, can we p u l l up as
19 E x h i b i t 6, e-mails regarding Zaman's i n j u r y and WC
20 claim, please?
11:19 21 ( P l a i n t i f f ' s E x h i b i t 6 was marked f o r
11:19 22 i d e n t i f i c a t i o n by the E x h i b i t Manager and i s
23 attached hereto.)
11:19 24 VIDEOGRAPHER/EXHIBIT MANAGER: Six has been
25 sent t o James. And I'm screen sharing. I t has been
42
BARKLEY
ANGELA KENYON, VOLUME Cbo/f Rtpertmrt
PLAINTIFF'S
EXHIBIT
From: Whitney, Janene
Sent: Thursday, Januaiy 3. 2019 6:17 PM
To: Kenyon, Angela ; Villani, Kenneth ; Williamson^ Chance
; McLeland, Andrew ; Fruth, David
Subject: RE: Sajida Zaman
Team:
Sajida was evaluated this afternoon and diagnc)sed with a left knee and hamstring sprain.. Shie may
return to work with the following restrictions:
• Must wearL kneesplint
• Limited push, pull, lift up to 1 Gibs.
• Physlcal therapy 3x's a week for 2 weeks
The exact date of injury is unknown because she did not report the injury until today. As stated,
Sajida indicated that she was pushing a cart with about 400 bag totes 3-4 weeks ago. She said that
the whee|(s) on the cart was hot wo^^^ she oviercompensated to push the cart. Tlie doctor
asked her why she coritinued to push the cart with a bad wheel or why did she not seek assistanpe
and/or use-another cart? Her response was that she was just trying to get her job don^. 1 noticed that
shie was wearing varlaise'Veih sleeves on both-df her (she told the nurse that she bbrrpwed
them from her son for support). She had a large bruise on the left side of her leg, adjacent to the
knee and: sontieiswelling below the bruise. The^^n^^
cause was unknown. She questioned if she had fallen or subsequently injured herself redentjY; and
Sajida said no. The nurse ordered x-i^ys, physical therapy and stated the injury was gqing to be
recordable.
When I asked Sajida why she did hot report the injury she said that she thought the pain would go
away because she was taking Ibuprofen. Sajida said that her pain continued so she went to the ER
on 12/31/18. She told the doctor her injury was work-related and was prescribed naprosyn &
baclofen. When asked for documentation of her visit, she said her paperwork was at home. | have
not received any correspondence from any hbspital or ER regarding her visit.
I also spoke to Rafael this afternoon as well and he said that he did not notice Sajida walking with a
|irtip:6r be|hg npti^
LBCOOIOat
Z a m a n ' s injury will b e a recordable injury for 2018. Let's discuss!
Regards,
JANENE W H I T N E Y , PHR
Manager of Human Resources
0:916.381.7054 | C: 916.241.6674
5000 Warehouse Way, Sacramento, CA 95826
DESIGN, COKNECT.nnJVtH
Wtb I IJnIcedlii I Vipieo I YonTuhe | Googlet
From: Kenyon, Angela
Sent: Thursday, January 03, 2019 10:55 AM
To: Whitney, Janene
Subject: FW: Sajida Zanriah;
Can you give me a call about this vyhen you can?
{after 230 my time © )
ANGELA KENYON, PHR, SHRM-CP
Director o/Htim(iitRe,totircai
O: 804;767.2254 | C: 804.867; 1482
901 East Byrd Street,,Suite 1105, Richmond; VA 23219
V/rh' i-1Jnkedin I' VImiro I YauTnbt^ I Comlet
From: McLetaiid, Andr^w^
Sent: Thursday, January
To: kenyon, Angela :
Subject: RE:-SajidaZarhah
Thankyou
Frditi: Kenyon, Angela
?eTii:;Thursday; Januiar^
To: McLfeLahd. Andrew
Subject: FW: Sajida Zaman
Importance: High
Should we be using the EHS hotline?
From: Villani; Kenneth
Sent: Thursday, January 3,201911:57 AM
To: McLeLand, Andrew : Fruth, David ,
Subject: FW: Sajida Zaman
Itnportance: High
Just an FYI - we will be pushing back on this claim - as she did not report it before or afterthe shutdown.
She also did not report It yesterday. She claimed she went to see the doctor over the holiday - but they did h o t contact
us as required to get the necessary paperwork.
That being said - if it goes down as recordable is should be charged to Decemlaer (2018)iaiid not 2019 as that is when
she said it happened and when she first sought medical attention.
V^ife will keep you updated.
Ken
From: Whitriey, Janene
Sent:Thursday,January,03,2019 8:45 AM
To: Zuniga, Rafael liquibox.com>
;Cc;Willianfisbii;£harice^
Subject: Sajida Z a ^
lirnpoirtahce:.HIgh
Sajida Tiepprted today that she injijred herself vvhi|e working oh :Lr1, 3-4;^y^ She said that she
injured her left, leg; while pushi^^^
injuiy because sheiithd^^ $he is currieritly sittin^^^
trailer. Please have her complete the attached statement and call Medcor vyith her.
I am sure they wili have her go to urgent care- if^so. i w Once comjilete^ have ti^^
the break room and wait for me.
Riegards,
tBC001083
JANENE W H I T N E Y , PHR
Manager of Human Resources
0:916.381.7054 | 0:916.241,6674
5000 Warehouse Way, Sacramento, CA 95826
|LlQUa-BQX
DEaGH.COHHFa.OfLlvrR.
iBC001084
11:53 1 Q BY MR. KHOSROWSHAHI: Ms. Kenyon, do you
2 recognize this document?
11:53 3 A I have got i t now I think. Yeah. Yes, I
4 recognize this document.
11.53 5 Q Okay. What i s this document?
11:54 6 A This i s our standard 4 Panel Review.
11:54 7 Q Okay. I see at the top i t says. Disciplinary
8 Review. So are a l l EHS reviews d i s c i p l i n a r y ?
11:54 9 A I'm not sure why i t says "Disciplinary
10 Review." We -- a l l of our 4 Panel Reviews use that
11 document.
11:54 12 Q Okay. And I believe this was referenced i n
13 the AS 1025 policy, correct, that was labeled Exhibit
14 7?
11:54 15 MR. JONES: Documents speak for themselves. I
16 think she would have to be shown that document to know
17 what i s i n there.
11:54 18 Q BY MR. KHOSROWSHAHI: Well, l e t me ask i t
19 again. When an enqployee gets injured on the job, they
20 have both the AS-1059 form f i l l e d out and as well as an
11:54 21 EHS Review conducted, correct?
11:54 22 A Yes, both should be done.
11:54 23 Q Okay. But the EHS isn't necessarily always
24 disciplinary, i s i t ?
11:55 25 A No, I'm not sure why i t says that.
59
BARKLEYl
ANGELA KENYON, VOLUME I Court ff«porrers
1 the c r i t i c a l safety behaviors p o l i c y r e s u l t s
2 i n immediate termination. There i s no --")
12:35 3 THE WITNESS: Thank you. There i s no
4 d i s c r e t i o n involved.
12:35 5 Q BY MR. KHOSROWSHAHI: Okay. So i n essence, i f
6 an employee v i o l a t e s the c r i t i c a l safety behaviors
7 p o l i c y , the d i s c i p l i n e you could choose i s out of your
8 hands. You can only go termination, i s t h a t correct?
12:35 9 A Yes.
12:35 10 Q okay. Who d r a f t e d t h i s employee handbook?
12:35 11 A I d r a f t e d t h i s employee handbook i n
12 conjunction w i t h our l e g a l attorneys.
12:36 13 Q And who d r a f t e d the c r i t i c a l safety behaviors
14 policy?
12:36 15 A I d r a f t e d the c r i t i c a l safety behaviors p o l i c y
16 i n conjunction w i t h our global safety manager and c h i e f
17 operations manager.
12:36 18 Q I f p o l i c i e s need t o be changed by the company,
19 what i s the process by which t h a t happens?
12:36 20 A We would go through a review of the p o l i c y ,
21 determine i f a change i s needed, consult w i t h l e g a l
22 counsel, make the e d i t s , have l e g a l covmsel review, and
23 then implement the p o l i c y .
12:36 24 MR. KHOSROWSHANI: Okay. Can we go t o page 43
25 and 44 o f t h i s document?
83
BARKLEY
ANGELA KENYON, VOLUME I Court R«porte/'i'
1 the f i r s t paragraph?
12:51 2 A Certainly, (reading)
12:51 3 "Immediately report a l l incidents to your
4 supervisor management team member" -- sorry --
5 supervisor management team member no matter how
6 minor or without exception."
12:51 7 Q And can you s c r o l l to the bottom of the
8 document and read the bold text, where i t says, "Any
9 violation"?
12:51 10 A (Reading)
12:51 11 "Any violation of these c r i t i c a l safety
12 behaviors w i l l result in immediate termination of
13 employment."
12:51 14 Q Okay. So this seems to be consistent with
15 what you t e s t i f i e d e a r l i e r , that any violation of t h i s
16 particular policy results i n immediate termination of
17 employment.
12:51 18 Now, l e t ' s go back to that f i r s t paragraph.
12:51 19 A Okay.
12:51 20 Q Okay. What does the word "immediately" mean
21 in that sentence?
12:52 22 A I t means as soon as you realize that you have
23 suffered a workplace injury. So, you know, obviously,
24 you can't do something within ten seconds and go find
25 your supervisor, but within reason. As soon as you
94
BARKLEY
ANGELA KENYON, VOLUME I Court Rtpoflmrm
1 there.
12:53 2 (The record was read by the reporter
12:53 3 as follows:
12:53 4 "Answer: I f somebody did not
5 r e a l i z e i t was a workplace injury u n t i l
6 the next day, then the next day --")
12:53 7 THE WITNESS: They would be required to report
8 the injury, because that's when they realized i t .
12:53 9 Q BY MR. KHOSROWSHAHI: Okay. What i f i t took
10 them a week to realize i t ?
12:53 11 MR. JONES: Again, i t ' s an incomplete
12 hypothetical.
12:53 13 THE WITNESS: Again, i f they don't r e a l i z e
14 i t ' s a workplace injury for a week, as soon as they
15 r e a l i z e that i t i s a workplace injury, they should
16 report i t .
12:54 17 Q BY MR. KHOSROWSHAHI: What about a month?
12:54 18 A I f they don't realize i t i s a workplace injury
19 u n t i l a month l a t e r , then they should report i t as soon
20 as they r e a l i z e i t .
12:54 21 Q What i f they are not sure i f i t i s a workplace
22 injury or not?
12:54 23 A I f i t i s something that requires medical
24 attention, and they assume or they feel that they may
25 have been injured i n the workplace, they should report
96
BARKLEY
ANGELA KENYON, VOLUME I Coorf ffoporlori
1 i t .
12:54 2 MR. KHOSROWSHAHI: Can we p u l l that exhibit
3 back up? I think we might have switched.
12:54 4 THE WITNESS: Yes. This i s a different
5 exhibit.
12:54 6 VIDEOGRAPHER/EXHIBIT MANAGER: Absolutely.
7 Which one was that again you needed, 12?
12:54 8 MR. JONES: I t i s 13.
12:54 9 VIDEOGRAPHER/EXHIBIT MANAGER: And what was
10 the name of the exhibit?
12:54 11 MR. KHOSROWSHAHI: CSB p o l i c y .
12:54 12 VIDEOGRAPHER/EXHIBIT MANAGER: That's r i g h t .
13 Okay. Sorry about this guys.
12:55 14 MR. KHOSROWSHAHI: No problem.
12:55 15 VIDEOGRAPHER/EXHIBIT MANAGER: I t should be
16 back up.
12:55 17 Q BY MR. KHOSROWSHAHI: Okay. So I g u e s S just
18 to c l a r i f y , Ms. Kenyon the word immediate r e a l l y
19 relates to when the employee f i r s t has knowledge that
20 they have an injury, and when they f i r s t have
21 knowledge, then they need to immediately report, i s
22 that accurate?
12:55 23 A Yes.
12:55 24 Q Okay. Now, what i s the time frame from when
25 they f i r s t have knowledge of i t and they report i t ?
97
BARKLEY
ANGELA KENYON. VOLUME I Court Rmpottorw
1 "immediately," i s not meant to be punitive. Any
2 violation of the c r i t i c a l safety behaviors policy w i l l
3 result in termination, but that wording "immediately"
4 i s not meant to be punitive.
12:59 5 Q BY MR. KHOSROWSHAHI: So i f an employee came
6 to you and said, hey, I found out yesterday I had a
7 workplace-related injury and I'm t e l l i n g you about i t
8 today, and I could have called you yesterday, but I'm
9 t e l l i n g you now today, i t i s a one-day delay, I
10 apologize.
12:59 11 A I f they could have told us yesterday, then i t
12 i s a violation of c r i t i c a l safety behaviors policy and
13 they would be terminated.
12:59 14 Q And that' s not considered punitive to you
15 because of that one-day delay?
12:59 16 A I t --
12:59 17 MR. JONES: Hold on, hold on, hold on, please.
18 Objection. You are simply arguing with the witness.
19 You don't l i k e the company's policy, but they are
20 allowed to have i t . You are just arguing with the
21 witness over i t . I t has been asked and answered
22 multiple times i n multiple ways.
23 MR. KHOSROWSHAHI: Please answer the question,
24 Ms. Kenyon.
25 THE WITNESS: Can you repeat your question?
101
BARKLEY
ANGELA KENYON, VOLUME I Coort A a p o r t a r i
1 A Sure. The door could cause an i n j u r y
2 eventually. They may end up w i t h bmiising o r something
3 l i k e t h a t , so there was something i n the way t h a t
4 caused the i n j u r y .
5 Q And i f they had waited one day t o report t h a t
6 they bumped i n t o a door, and they had waited one day t o
7 report t h a t i n c i d e n t , would t h a t be a v i o l a t i o n t h a t
8 would subject them t o termination?
9 MR. JONES: Incomplete h y p o t h e t i c a l . Asked
10 and answered. Argumentative,
11 THE WITNESS: Yes, because they knew a t the
12 time they bumped i n t o the door t h a t i t could
13 p o t e n t i a l l y be a workplace i n j u r y .
14 Q BY MR. KHOSROWSHAHI: Okay. What i f an
15 employee has s t i f f n e s s , which l a t e r becomes p a i n f u l
16 over the course of a month, and then they f i n d out,
17 oh, t h i s i s due t o something I had done a t work, and
18 then they t e l l you when they f i n d out a f t e r t h a t month
19 has passed, would t h a t be considered a v i o l a t i o n ?
20 MR. JONES: Incomplete hypothetical.
21 THE WITNESS: Again, employees should report
22 as soon as they r e a l i z e t h a t i t i s a workplace i n j u r y .
23 So i f they don't r e a l i z e t h a t the s t i f f n e s s i s a
24 workplace i n j u r y u n t i l a month l a t e r , as soon as they
25 r e a l i z e i t , they should report it.
108
BARKLEYl
ANGELA KENYON, VOLUME I Coorf Reporter!
1 as f o l l o w s :
2 "Question: Another hypothetical.
3 Considering t h i s p o l i c y here, l e t ' s say an
4 employee on the j o b gets a paper cut and
5 doesn't report t h a t u n t i l one day a f t e r
6 receiving the paper cut, does t h a t v i o l a t e
7 t h i s policy?")
8 MR. JONES: Same objections.
9 THE WITNESS: James, were you speaking? I'm
10 sorry.
11 MR. JONES: Yeah, I j u s t had my o b j e c t i o n . I
12 said same objections. Did you hear t h a t objection?
13 THE WITNESS: I d i d . Thank you.
14 So i t i s i n t e r e s t i n g t h a t you use t h i s
15 hypothetical. We a c t u a l l y use t h i s one i n t r a i n i n g
16 w i t h our employees, and s p e c i f i c a l l y mention i f you get
17 a paper cut, t h a t , yes, you are supposed t o report t h a t
18 immediately, because i t could cause an i n f e c t i o n o r
19 other issues t h a t may r e s u l t i n a workers' comp. claim.
20 So, yes, they would need t o report t h a t immediately as
21 well. And a day l a t e r , would be a v i o l a t i o n o f a
22 c r i t i c a l safety behavior.
23 Q BY MR. KHOSROWSHAHI: And they would be
24 terminated?
25 A Yes, s i r .
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ANGELA KENYON, VOLUME Court fteporteri
1 l e g a l conclusion.
2 THE WITNESS: Because we needed t o complete
3 our i n v e s t i g a t i o n .
4 Q BY MR. KHOSROWSHAHI: Okay. And a f t e r the
5 i n v e s t i g a t i o n , you concluded what exactly?
6 MR. JONES: Asked and answered.
7 THE WITNESS: During the i n v e s t i g a t i o n , we
8 spoke w i t h her about her i n j u r y and asked her what
9 happened. She gave us a t i m e l i n e of events. We
10 concluded t h a t she d i d not report her i n j u r y t i m e l y ,
11 which i s a v i o l a t i o n o f our c r i t i c a l safety behaviors,
12 and the reason she was terminated.
13 Q BY MR. KHOSROWSHAHI: And you believed that
14 t h a t outweighed your o b l i g a t i o n s t o provide her an
15 accommodation under the Fair Employment and Housing
16 Act?
17 MR. JONES: I t i s argumentative. Also an
18 incomplete h y p o t h e t i c a l . And misstates the f a c t s .
19 There i s nothing t o suggest they didn't accommodate
20 her.
21 THE WITNESS: She was placed on leave as an
22 accommodation while we were doing the i n v e s t i g a t i o n .
23 I t was determined she v i o l a t e d the c r i t i c a l safety
24 behaviors. That i s why she was terminated.
25 Q BY MR. KHOSROWSHAHI: Was there any discussion
138
BARKLEY
ANGELA KENYON, VOLUME I Court fleportari
1 Q This category says that you have been
2 designated by Liqui-Box as the person most qualified as
3 to the creation, formation of i t s C r i t i c a l Safety
4 Behaviors Policy?
5 A Yes.
6 Q And I want to ask you a l i t t l e b i t more about
7 that category.
8 A Okay.
9 Q Did you personally have any involvement in
10 creating the C r i t i c a l Safety Behaviors Policy?
11 A Yes.
12 Q Did anyone, other than you, work with you to
13 create the C r i t i c a l Safety Behaviors Policy?
14 A Yes.
15 Q Who was that person?
16 A I worked with our chief operating officer, and
17 at the time our global safety manager.
18 Q Okay. Why did you include the chief operating
19 officer?
20 A Because he i s also very familiar with OSHA
21 standards and requirements, as i s the global safety
22 officer, and because he i s one of the senior leaders of
23 the company that oversees a l l of our operations
24 globally.
25 Q Can you describe what was done by you working
155
BARKLEY
ANGELA KENYON, VOLUME Court Aeporteri
1 DEPOSITION OFFICER'S CERTIFICATE
2
3 STATE OF CALIFORNIA )
) ss.
4 COUNTY OF LOS ANGELES )
5
6 I , CHERYL L. MARQUIS, hereby c e r t i f y :
7 I am a d u l y q u a l i f i e d C e r t i f i e d Shorthand
8 Reporter i n the State o f C a l i f o r n i a , holder of
9 C e r t i f i c a t e Number CSR 6731, i s s u e d by t h e Court
10 R e p o r t e r s Board o f C a l i f o r n i a and which i s i n f u l l
11 f o r c e and e f f e c t . (Bus. & P r o f . S e c t i o n 8016.)
12 I am n o t f i n a n c i a l l y i n t e r e s t e d i n this action
13 and am n o t a r e l a t i v e o r employee o f any a t t o r n e y o f
14 the parties, o r o f any o f t h e p a r t i e s . (Civ. Proc.
15 Section 2025.320(a)).
16 I am a u t h o r i z e d t o a d m i n i s t e r oaths o r
17 affirmations pursuant t o C a l i f o r n i a Code o f C i v i l
18 Procedure, S e c t i o n 2093(b) and p r i o r t o b e i n g examined,
19 t h e deponent was f i r s t p l a c e d under o a t h o r a f f i r m a t i o n
20 by me. ( C i v . Proc. S e c t i o n 2025.320, 2025.540(a))
21 I am t h e d e p o s i t i o n o f f i c e r t h a t
22 s t e n o g r a p h i c a l l y recorded t h e t e s t i m o n y i n t h e
23 f o r e g o i n g d e p o s i t i o n and t h e f o r e g o i n g t r a n s c r i p t i s a
24 true record of the testimony given. (Civ. Proc. S e c t i o n
25 2025.540(a))
187
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ANGELA KENYON, VOLUME Court Reporterf
1 I have n o t , and s h a l l n o t , o f f e r o r p r o v i d e
2 any s e r v i c e s o r p r o d u c t s t o any p a r t y ' s a t t o r n e y o r
3 t h i r d p a r t y who i s f i n a n c i n g a l l o r p a r t o f t h e a c t i o n
4 w i t h o u t f i r s t o f f e r i n g same t o a l l p a r t i e s o r t h e i r
5 a t t o r n e y s a t t e n d i n g t h e d e p o s i t i o n and making same
6 a v a i l a b l e a t t h e same time t o a l l p a r t i e s o r t h e i r
7 attorneys. (Civ. Proc. S e c t i o n 2025.320 ( b ) )
8 I s h a l l n o t p r o v i d e any s e r v i c e o r p r o d u c t
9 c o n s i s t i n g of the deposition o f f i c e r ' s notations or
10 comments r e g a r d i n g t h e demeanor o f any w i t n e s s ,
11 a t t o r n e y , o r p a r t y p r e s e n t a t t h e d e p o s i t i o n t o any
12 p a r t y o r any p a r t y ' s a t t o r n e y o r t h i r d p a r t y who i s
13 f i n a n c i n g a l l or p a r t of the action, nor s h a l l I
14 c o l l e c t any personal i d e n t i f y i n g i n f o r m a t i o n about t h e
15 witness as a s e r v i c e o r p r o d u c t t o be p r o v i d e d t o any
16 p a r t y o r t h i r d p a r t y who i s f i n a n c i n g a l l o r p a r t o f
17 t h e a c t i o n . (Civ. Proc. S e c t i o n 2025.320(c))
18
19 Dated: February 12, 2021
20
21
22
23
24
25
188
BARKLEY!
ANGELA KENYON. VOLUME Court fftporteri i
EXHIBIT K2
Acosta V. Dura-Fibre LLC, Not Reported in Fed. Supp. (2018)
(PPFOF) ^ 2, ECF No. 30. In an effort to improve safety,
Dura-Fibre instituted a multi-component safety program
2018 WL 2433589
comprised of an accident reporting plan, training on safety
Only the Westlaw citation is currently available.
in the workplace, audits to ensure compliance with safety
United States District Court, E.D. Wisconsin.
procedures, and a progressive discipline program to address
R. Alexander ACOSTA, Secretary of Labor, safety and reporting violations. D e f s Proposed Findings of
United States Department of Labor, Plaintiff, Fact (DPFOF) K 4, ECF No. 27. The company's employee
V.
handbook also explains Dura-Fibre's dedication to a safe
workplace. The handbook provides: "It is the company's
DURA-FIBRE LLC, Defendant.
responsibility to provide you with a safe place to work and to
Case No. 17-C-589 give you the necessary safety training so that you can avoid
I accidents to yourself or to others. It is your responsibility to
work safely." ECF No. 33-14 at 10.
Signed 05/30/2018
Under Dura-Fibre's Accident Reporting/Investigation Plan,
Attorneys and Law Firms
if an employee is injured or almost injured at work, he must
David J. Rutenberg, United States Department of Labor report the injury or "near miss." Dura-Fibre instituted this
Office of the Solicitor, Chicago, IL, for Plaintiff. plan to emphasize timeliness in reporting injuries and to create
a "near miss" program to increase reports of unsafe acts that
Brittany Lopez Naleid, Christopher P, Banaszak, Jessica M.
did not result in injury. PPFOF ^ 33. The plan requires that
Simons, Robert S, Driscoll, Reinhart Boemer Van Deuren,
an employee notify a supervisor of an accident or "near miss"
SC, Milwaukee, WI, John H. Zawadsky, Reinhart Boemer
as soon as possible or by the end of the employee's shift. It
Van Deuren, SC, Madison, Wl, for Defendant.
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
DECISION AND ORDER in an accident but could have." ECF No. 32-2 at 2. Dura-
Fibre requires that employees report all injuries, even if the
William C. Griesbach, Chief Judge
employee does not consider the injury to be serious, reasoning
*1 The Occupational Safety and Health Act (OSH Act) that an employee may be hurt more than he initially believes.
prohibits employers from discharging or discriminating DPFOF ^11. Any employee that fails to report an accident or
against an employee for engaging in activity protected by near miss in a timely manner is subjected to discipline up to
and including termination. Id. ^ 14.
the Act. 5ecp29 U.S C. § 660(c)(1). Plaintiff R. Alexander
Acosta, Secretary of Labor, brought this action against
Once an employee reports an occurrence to his supervisor,
Defendant Dura-Fibre LLC, alleging Dura-Fibre violated the
the supervisor must decide if the incident was an accident
OSH Act's anti-retaliation provisions by punishing its former
or a near miss by determining whether the employee was
employee, Tim Jacobs, for reporting injuries to the company
injured. Although the plan does not define "injury" and
and thus interfering with Jacobs' right to report under the
"physical harm," in deciding whether an employee is injured,
Act. Federal jurisdiction exists pursuant to 28 U.S.C. § 1331.
the supervisor considers whether the employee is bleeding,
The case is before the court on the parties' cross motions for
limping, favoring a body part, or hurting. If the supervisor
summary judgment. For the following reasons, both summary
determines that an accident occurred, as a result of his
judgment motions will be denied.
finding that the employee suffered physical harm or injury, he
must investigate the situation to determine why the accident
happened, where it occurred, and i f there are any trends
BACKGROUND related to the accident. After the supervisor completes his
investigation and fills out an investigation form, Dura-
A. Dura—Fibre's Accident Reporting/Investigation Plan Fibre's safety coordinator reviews the completed form. Then
Dura-Fibre, LLC, located in Menasha, Wisconsin, the Health and Safety Committee, which is comprised of
manufactures industrial packaging and specialty laminated two representatives of management and at least two union
paperboard products. PL's Proposed Findings of Fact
WESTLAW © 2022 Thomson Reuters, No claim to original U.S. Government Works.
Acosta v. Dura-Fibre LLC, Not Reported in Fed. Supp. (2018)
members, assesses the accident by reviewing the incident Given the uncertain definition of the term "unsafe act" and
report and accident investigation form. After its assessment, the disciplinary points employees receive for committing an
the Committee completes its own Safety Incident Report and "unsafe act," employees are naturally reluctant to report any
determines whether the employee should receive disciplinary injury to themselves. In theory, almost any act that results in
points in accordance with Dura-Fibre's 24-point disciplinary a workplace injury can qualify as an unsafe act. The current
program. president of Dura-Fibre has defined "unsafe act" as "any
action by an employee that either resulted in, or could have
*2 Under the disciplinary program, which is set forth in resulted in, themselves or another employee being harmed."
the labor agreement between Dura-Fibre and the United Id. \ 25. Thus, employees who suffer injuries on the job
Steelworkers Local 2-432, employees may be assigned a find themselves in a classic "catch 22": if they are injured
designated number of points for violations of the company's at work, they must report the injury to a supervisor or face
rules and policies, such as failing to report an injury to discipline, but if they do report an injury, management may
a supervisor by the end of his shift, failing to use safety well conclude the injury resultedfromtheir own unsafe act for
equipment, or committing an "unsafe act." Although an which they will also face discipline. Either way, the employee
employee may gain points back i f he does not commit an risks discipline. It is in this context that Jacobs' claim arises.
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 B. Jacobs' Injury Reporting
Committee considers a number of factors, including whether Jacobs began working for Dura-Fibre as a laminator machine
the employee has a past history of unsafe acts, the severity lead operator in 2008. He had worked for Dura-Fibre's
of the employee's injury caused by the unsafe act, and predecessor, Menasha Corporation, from 1985 to 2004.
other contributing factors. As relevant to the instant case, As lead operator, Jacobs was responsible for the overall
an employee who fails to report an on-duty accident or production of the laminating machine and oversaw four or
injury to a supervisor before leaving work will receive eight five other employees who ran the machine. He was also
disciplinary points. An employee who commits an unsafe act required to notify his supervisor when any employee reported
will be assessed between foiu- to eight disciplinary points as an accident or near miss to him. Dura-Fibre valued Jacobs as
determined by the Health and Safety Committee. an
Preview
JOSHUA S. FALAKASSA (SBN: 295045) 1 FALAKASSA LAW, P.C. 2 1901 Avenue ofthe Stars Suite # 450 Los Angeles, Caiifomia 90067 3 Tel.: (818) 456-6168; Fax: (888) 505-0868 FlSD/ENDORp^ Email: josh@falakassalaw.com 4 JUL 27 2022 ARASH S. KHOSROWSHAHI (SBN: 293246) 5 LIBERTY MAN LAW, P.C. 6 1010 F Street, Ste. 300 Sacramento, Caiifomia 95814 7 Tel.: (916) 573-0469; Fax: (866) 700-0787 Email: ash@libertymanlaw.com 8 9 Attomeys for Plaintiff, SAJIDA ZAMAN 10 SUPERIOR COURT OF CALIFORNIA 11 COUNTY OF SACRAMENTO 12 13 SAJIDA ZAMAN, CASE NO.: 34-2019-00252121 RESERVATION ID: 2644651 14 Plaintiff, vs. DECLARATION OF ARASH 15 KHOSROWSHAHI IN SUPPORT OF LIQUI-BOX CORPORATION, and DOES 1 PLAINTIFF'S OPPOSITION TO 16 through 20, inclusive. DEFENDANT LIQUI-BOX 17 COROPRATION'S MOTION FOR Defendants. SUMMARY JUDGMENT AND/OR 18 SUMMARY ADJUDICATION OF ISSUES. 19 BY FAX Date: August 10, 2022 20 Time: 1:30pm 21 Dept.: 53 Trial Date: September 12, 2022 22 I, ARASH KHOSROWSHAHI, hereby declare as follows: 23 1. I am an attomey duly licensed to practice law in the State of Caiifomia. My State Bar 24 Number is 293246.1 represent Plaintiff Sajida Zaman in the above-referenced matter. I am over 18 25 years of age and have personal knowledge of the facts stated herein to which I can competently 26 testify. 27 2. I conducted the deposition of Defendant Liqui-Box Corporation's ("Defendant") 28 1 Chief Human Resources Officer Ms. Angela Kenyon ("CHRO Kenyon") as Defendant's Person 2 Most Qualified ("PMQ"). A true and cortect excerpted copy of CHRO Kenyon's deposition 3 transcript is attached herein as Exhibit K l . 4 3. CHRO Kenyon testified to the following matters: 5 a. Janene Whitney, Defendant's Manager of Human Resources, emailed CHRO 6 Kenyon and Chief Operating Officer ("COO") Mr. Andrew McLeland the results 7 of PlaintifFs US HealthWorks medical examination as part of Plaintiff s workers 8 compensation claim. Importantly, Whitney ertoneously reported the following to 9 Defendant: 10 "Sajida was evaluated this aftemoon and diagnosed with a left knee and 11 hamstring sprain.. .The exact date of injury is unknown because she did not report 12 the injury until today.. .When I asked Sajida why she did not report the injury she 13 said she thought the pain would go away because she was taking ibuprofen. 14 Sajida said that her pain continued so she went to the ER on 12/31/18. She told the doctor the injury was work-related..." 15 (See Exhibit K l , p. 42, lines 18-20, and Exhibit 6 contained therein.) 16 b. CHRO Kenyon acknowledged that all "4 Panel Reviews" use the document 17 entitled "Disciplinary Review." (Exhibit K l , p. 59, lines 5-11.) 18 c. As to the immediacy requirement of the CSB policy, CHRO Kenyon testified 19 that if an employee delayed just one day in reporting an injury as slight as a 20 papercut, they would be terminated: 21 "The Witness:...We actually use this one in training with our employees, and 22 specifically mention if you get a paper cut, that, yes, you are supposed to report 23 that immediately...And a day later, would be a violation of a critical safety 24 behavior. 25 Q By Mr. Khosrowshahi: And they would be terminated? 26 A Yes, sir." 27 (Id., p. 115, lines 13-25.) 28 1 d. CHRO Kenyon further testified that Defendant provided Plaintiff one week of 2 leave as an accommodation for her injury before terminating her for the purported 3 violation ofthe CSB policy. (Id. p. 138, lines 21-24.) 4 e. CHRO Kenyon further identify COO McLeland as a managing agent who helped 5 create the Critical Safety Behaviors ("CSB") policy: 6 "Did anyone, other than you, work with you to create the Critical Safety 7 Behaviors Policy? 8 A Yes. 9 Q Who was that person? IQ A I worked with our chief operating officer, and at the time our global safety JI manager. 12 Q Okay. Why did you include the chief operadng officer? 12 A Because he is also very familiar with OSHA standards and requirements.. .and because he is one of the senior leaders of the company that oversees all of our operations globally." 15 (Id., p. 155, lines 16-24) 16 f CHRO Kenyon further testified as to the meaning of the "immediate" reporting 17 requirement of incidences in the CSB policy: 18 "Q Okay. What does the word 'immediately' mean in that sentence? 19 A It means as soon as you realize that you have suffered a workplace injury. So, 20 you know, obviously, you can't do something within 10 seconds and gofindyour 21 supervisor, but within reason. As soon as you realize you have suffered a 22 workplace injury or illness, you are to report it to your supervisor or management 23 team. 24 25 Q Okay, what if it took them a week to realize it? 26 27 A Again, if they don't realize it's a workplace injury for a week, as soon as they 28 1 realize that it is a workplace injury, they should report it. 2 Q By Mr. Khosrowshahi: What about a month? 3 A If they don't realize it is a workplace injury until a month later, then they should 4 report it as soon as they realize it. 5 Q What if they are not sure if it is a workplace injury or not? 6 A If it is something that requires medical attention, and they assume or they feel 7 that they may have been injured in the workplace, they should report it 8 (Id., p. 94, lines 20-25; p. 96, lines 9-25, p. 97, line 1.) 9 "Q By Mr. Khosrowshahi: So if an employee came to you and said, hey, I found 2Q out yesterday I had a workplace-related injury and I'm telling you about it today, JI and I could have called you yesterday, but I'm telling you now today, it is a one- 12 day delay, I apologize. j2 A If they could have told us yesterday, then it is a violation of critical safety behaviors policy and they would be terminated." (Id.p. 101, lines 5-13.) 15 "Q And if they had waited one day to report that they bumped into a door, and 16 they had waited one day to report that incident, would that be a violation that 17 would subject them to termination?" 18 19 The Witness: Yes, because they knew at the time they bumped into the door that 20 it could potentially be a workplace injury." 21 (Id., p. 108, lines 5-13.) 22 g. CHRO Kenyon further testified that termination was the only form of discipline 23 that could be acted upon for violations ofthe CSB policy: 24 "Q Okay. So in essence, if an employee violates the critical safety behaviors 25 policy, the discipline you could choose is out of your hands. You can only go 26 termination, is that correct? 27 A Yes." 28 1 (Id., p. 83, lines 5-9.) 2 4. Pursuant to Caiifomia Rules of Court, Rule 3.1113(i) and Local Rule 11.1(c), 3 attached as Exhibit K2 is a tme and cortect copy of Acosta v. Dura-Fibre LLC, (E.D. Wise. 2018) 4 2018 WL 2433589. Attached as Exhibit K3 is a tme and cortect copy of Villiarimo v. Aloha Island 5 Air, Inc. (9th Cir. 2002) 281 F.3d 1054. Attached as Exhibit K4 is a tme and correct copy of 6 Perez v. Pacific Ship Repair & Fabrication, Inc. (W.D. Wash. 2015) 2015 WL 7292594. Attached 7 as Exhibit K5 is a tme and cortect copy of Humphrey v. Memorial Hospitals Ass'n (9th Cir. 2001) 8 239F.3d 1128. 9 I declare under penalty of perjury that under the laws of the State of Caiifomia that the 10 foregoing is tme and cortect. 11 Executed on this 27* Day of July 2022, at Sacramento, Caiifomia. 12 13 14 15 Arash Khosrowshahi Attomey for Plaintiff 16 Sajida Zaman 17 18 19 20 21 22 23 24 25 26 27 28 EXHIBIT K l CERTIFIED COPY 1 SUPERIOR COURT OF CALIFORNIA 2 COUNTY OF SACRAMENTO 3 4 SAJIDA ZAMAN, Case No. 34-2019-00252121 5 Plaintiff, 6 vs. 7 LIQUI-BOX CORPORATION, and DOES 1 t h r o u g h 2 0, 8 Inclusive, 9 Defendants. 10 11 12 VOLUME I 13 Videotaped D e p o s i t i o n , o f ANGELA KENYON 14 January ,28, 2021 15 16 17 18 19, 20 ;2i ^2^ ;23 24 C h e r y l L . Marquis, CSR, ;Nd^ 6731 469958 BARKLEY 25 SINCE C.oTo rt:R e P.O ir. t a r:s 1972 barkley.cdni (310) 207-eOOO t o s Angeles (415) 433-5777 San Francisco (949) 955^0400 Irvine (858) 455-5444 San Diego (310) 207ra000 Century City (408) 885-0550 San Jose (760) 322-2240 Palm Springs (800) 222-1231 Carisbad . (916)'g22-57T7 Sacramento (800) 222-1231 Martinez (702) 366-0500 Las Vegas (800)222-1231 Monterey (951) eas-oede Riverside, (818) 702-0202 Woodland Hills (702) 366.0500 Henderson (516) 277-9494.GardonCity (212)ffi)fr-8S00New YorkCity (347)821-4611 Brooltlyn (518) 490-1910 Albany (914) 510-9110~WHte>laine (312) 379-5566 Cliicago 06+U8OO 222.12^ Paris 00+1 *tiSia232.1231 Diiba) 001+1+800 222 1231 Hong Kong 11,17 1 Q Okay. Were there any d i f f e r e n c e s between t h i s 2 status -- work status report and the previous work 3 status report we showed you as E x h i b i t 4? 11:18 4 MR. JONES: Hold on one second, please. Calls 5 f o r medical testimony. The documents speak f o r 6 themselves. I t i s vague and ambiguous. And you are 7 asking her t o draw conclusions. Calls f o r 8 inappropriate expert witness testimony. And she's not 9 been designated as a PMQ on these issues. 11:18 10 Q BY MR. KHOSROWSHAHI: Strike that. Let me ask 11 i t t h i s way. 11:18 12 Did t h i s second work status report influence 13 Liqui-Box's decision t o terminate Ms. Zaman? 11:18 14 A No. The decision had already been made based 15 o f f o f the i n v e s t i g a t i o n i n t o her workplace i n j u r y and 16 f a i l u r e t o report. 11:18 17 Q Okay. 11:19 18 MR. KHOSROWSHAHI: Now, can we p u l l up as 19 E x h i b i t 6, e-mails regarding Zaman's i n j u r y and WC 20 claim, please? 11:19 21 ( P l a i n t i f f ' s E x h i b i t 6 was marked f o r 11:19 22 i d e n t i f i c a t i o n by the E x h i b i t Manager and i s 23 attached hereto.) 11:19 24 VIDEOGRAPHER/EXHIBIT MANAGER: Six has been 25 sent t o James. And I'm screen sharing. I t has been 42 BARKLEY ANGELA KENYON, VOLUME Cbo/f Rtpertmrt PLAINTIFF'S EXHIBIT From: Whitney, Janene Sent: Thursday, Januaiy 3. 2019 6:17 PM To: Kenyon, Angela ; Villani, Kenneth ; Williamson^ Chance ; McLeland, Andrew ; Fruth, David Subject: RE: Sajida Zaman Team: Sajida was evaluated this afternoon and diagnc)sed with a left knee and hamstring sprain.. Shie may return to work with the following restrictions: • Must wearL kneesplint • Limited push, pull, lift up to 1 Gibs. • Physlcal therapy 3x's a week for 2 weeks The exact date of injury is unknown because she did not report the injury until today. As stated, Sajida indicated that she was pushing a cart with about 400 bag totes 3-4 weeks ago. She said that the whee|(s) on the cart was hot wo^^^ she oviercompensated to push the cart. Tlie doctor asked her why she coritinued to push the cart with a bad wheel or why did she not seek assistanpe and/or use-another cart? Her response was that she was just trying to get her job don^. 1 noticed that shie was wearing varlaise'Veih sleeves on both-df her (she told the nurse that she bbrrpwed them from her son for support). She had a large bruise on the left side of her leg, adjacent to the knee and: sontieiswelling below the bruise. The^^n^^ cause was unknown. She questioned if she had fallen or subsequently injured herself redentjY; and Sajida said no. The nurse ordered x-i^ys, physical therapy and stated the injury was gqing to be recordable. When I asked Sajida why she did hot report the injury she said that she thought the pain would go away because she was taking Ibuprofen. Sajida said that her pain continued so she went to the ER on 12/31/18. She told the doctor her injury was work-related and was prescribed naprosyn & baclofen. When asked for documentation of her visit, she said her paperwork was at home. | have not received any correspondence from any hbspital or ER regarding her visit. I also spoke to Rafael this afternoon as well and he said that he did not notice Sajida walking with a |irtip:6r be|hg npti^ LBCOOIOat Z a m a n ' s injury will b e a recordable injury for 2018. Let's discuss! Regards, JANENE W H I T N E Y , PHR Manager of Human Resources 0:916.381.7054 | C: 916.241.6674 5000 Warehouse Way, Sacramento, CA 95826 DESIGN, COKNECT.nnJVtH Wtb I IJnIcedlii I Vipieo I YonTuhe | Googlet From: Kenyon, Angela Sent: Thursday, January 03, 2019 10:55 AM To: Whitney, Janene Subject: FW: Sajida Zanriah; Can you give me a call about this vyhen you can? {after 230 my time © ) ANGELA KENYON, PHR, SHRM-CP Director o/Htim(iitRe,totircai O: 804;767.2254 | C: 804.867; 1482 901 East Byrd Street,,Suite 1105, Richmond; VA 23219 V/rh' i-1Jnkedin I' VImiro I YauTnbt^ I Comlet From: McLetaiid, Andr^w^ Sent: Thursday, January To: kenyon, Angela : Subject: RE:-SajidaZarhah Thankyou Frditi: Kenyon, Angela ?eTii:;Thursday; Januiar^ To: McLfeLahd. Andrew Subject: FW: Sajida Zaman Importance: High Should we be using the EHS hotline? From: Villani; Kenneth Sent: Thursday, January 3,201911:57 AM To: McLeLand, Andrew : Fruth, David , Subject: FW: Sajida Zaman Itnportance: High Just an FYI - we will be pushing back on this claim - as she did not report it before or afterthe shutdown. She also did not report It yesterday. She claimed she went to see the doctor over the holiday - but they did h o t contact us as required to get the necessary paperwork. That being said - if it goes down as recordable is should be charged to Decemlaer (2018)iaiid not 2019 as that is when she said it happened and when she first sought medical attention. V^ife will keep you updated. Ken From: Whitriey, Janene Sent:Thursday,January,03,2019 8:45 AM To: Zuniga, Rafael liquibox.com> ;Cc;Willianfisbii;£harice^ Subject: Sajida Z a ^ lirnpoirtahce:.HIgh Sajida Tiepprted today that she injijred herself vvhi|e working oh :Lr1, 3-4;^y^ She said that she injured her left, leg; while pushi^^^ injuiy because sheiithd^^ $he is currieritly sittin^^^ trailer. Please have her complete the attached statement and call Medcor vyith her. I am sure they wili have her go to urgent care- if^so. i w Once comjilete^ have ti^^ the break room and wait for me. Riegards, tBC001083 JANENE W H I T N E Y , PHR Manager of Human Resources 0:916.381.7054 | 0:916.241,6674 5000 Warehouse Way, Sacramento, CA 95826 |LlQUa-BQX DEaGH.COHHFa.OfLlvrR. iBC001084 11:53 1 Q BY MR. KHOSROWSHAHI: Ms. Kenyon, do you 2 recognize this document? 11:53 3 A I have got i t now I think. Yeah. Yes, I 4 recognize this document. 11.53 5 Q Okay. What i s this document? 11:54 6 A This i s our standard 4 Panel Review. 11:54 7 Q Okay. I see at the top i t says. Disciplinary 8 Review. So are a l l EHS reviews d i s c i p l i n a r y ? 11:54 9 A I'm not sure why i t says "Disciplinary 10 Review." We -- a l l of our 4 Panel Reviews use that 11 document. 11:54 12 Q Okay. And I believe this was referenced i n 13 the AS 1025 policy, correct, that was labeled Exhibit 14 7? 11:54 15 MR. JONES: Documents speak for themselves. I 16 think she would have to be shown that document to know 17 what i s i n there. 11:54 18 Q BY MR. KHOSROWSHAHI: Well, l e t me ask i t 19 again. When an enqployee gets injured on the job, they 20 have both the AS-1059 form f i l l e d out and as well as an 11:54 21 EHS Review conducted, correct? 11:54 22 A Yes, both should be done. 11:54 23 Q Okay. But the EHS isn't necessarily always 24 disciplinary, i s i t ? 11:55 25 A No, I'm not sure why i t says that. 59 BARKLEYl ANGELA KENYON, VOLUME I Court ff«porrers 1 the c r i t i c a l safety behaviors p o l i c y r e s u l t s 2 i n immediate termination. There i s no --") 12:35 3 THE WITNESS: Thank you. There i s no 4 d i s c r e t i o n involved. 12:35 5 Q BY MR. KHOSROWSHAHI: Okay. So i n essence, i f 6 an employee v i o l a t e s the c r i t i c a l safety behaviors 7 p o l i c y , the d i s c i p l i n e you could choose i s out of your 8 hands. You can only go termination, i s t h a t correct? 12:35 9 A Yes. 12:35 10 Q okay. Who d r a f t e d t h i s employee handbook? 12:35 11 A I d r a f t e d t h i s employee handbook i n 12 conjunction w i t h our l e g a l attorneys. 12:36 13 Q And who d r a f t e d the c r i t i c a l safety behaviors 14 policy? 12:36 15 A I d r a f t e d the c r i t i c a l safety behaviors p o l i c y 16 i n conjunction w i t h our global safety manager and c h i e f 17 operations manager. 12:36 18 Q I f p o l i c i e s need t o be changed by the company, 19 what i s the process by which t h a t happens? 12:36 20 A We would go through a review of the p o l i c y , 21 determine i f a change i s needed, consult w i t h l e g a l 22 counsel, make the e d i t s , have l e g a l covmsel review, and 23 then implement the p o l i c y . 12:36 24 MR. KHOSROWSHANI: Okay. Can we go t o page 43 25 and 44 o f t h i s document? 83 BARKLEY ANGELA KENYON, VOLUME I Court R«porte/'i' 1 the f i r s t paragraph? 12:51 2 A Certainly, (reading) 12:51 3 "Immediately report a l l incidents to your 4 supervisor management team member" -- sorry -- 5 supervisor management team member no matter how 6 minor or without exception." 12:51 7 Q And can you s c r o l l to the bottom of the 8 document and read the bold text, where i t says, "Any 9 violation"? 12:51 10 A (Reading) 12:51 11 "Any violation of these c r i t i c a l safety 12 behaviors w i l l result in immediate termination of 13 employment." 12:51 14 Q Okay. So this seems to be consistent with 15 what you t e s t i f i e d e a r l i e r , that any violation of t h i s 16 particular policy results i n immediate termination of 17 employment. 12:51 18 Now, l e t ' s go back to that f i r s t paragraph. 12:51 19 A Okay. 12:51 20 Q Okay. What does the word "immediately" mean 21 in that sentence? 12:52 22 A I t means as soon as you realize that you have 23 suffered a workplace injury. So, you know, obviously, 24 you can't do something within ten seconds and go find 25 your supervisor, but within reason. As soon as you 94 BARKLEY ANGELA KENYON, VOLUME I Court Rtpoflmrm 1 there. 12:53 2 (The record was read by the reporter 12:53 3 as follows: 12:53 4 "Answer: I f somebody did not 5 r e a l i z e i t was a workplace injury u n t i l 6 the next day, then the next day --") 12:53 7 THE WITNESS: They would be required to report 8 the injury, because that's when they realized i t . 12:53 9 Q BY MR. KHOSROWSHAHI: Okay. What i f i t took 10 them a week to realize i t ? 12:53 11 MR. JONES: Again, i t ' s an incomplete 12 hypothetical. 12:53 13 THE WITNESS: Again, i f they don't r e a l i z e 14 i t ' s a workplace injury for a week, as soon as they 15 r e a l i z e that i t i s a workplace injury, they should 16 report i t . 12:54 17 Q BY MR. KHOSROWSHAHI: What about a month? 12:54 18 A I f they don't realize i t i s a workplace injury 19 u n t i l a month l a t e r , then they should report i t as soon 20 as they r e a l i z e i t . 12:54 21 Q What i f they are not sure i f i t i s a workplace 22 injury or not? 12:54 23 A I f i t i s something that requires medical 24 attention, and they assume or they feel that they may 25 have been injured i n the workplace, they should report 96 BARKLEY ANGELA KENYON, VOLUME I Coorf ffoporlori 1 i t . 12:54 2 MR. KHOSROWSHAHI: Can we p u l l that exhibit 3 back up? I think we might have switched. 12:54 4 THE WITNESS: Yes. This i s a different 5 exhibit. 12:54 6 VIDEOGRAPHER/EXHIBIT MANAGER: Absolutely. 7 Which one was that again you needed, 12? 12:54 8 MR. JONES: I t i s 13. 12:54 9 VIDEOGRAPHER/EXHIBIT MANAGER: And what was 10 the name of the exhibit? 12:54 11 MR. KHOSROWSHAHI: CSB p o l i c y . 12:54 12 VIDEOGRAPHER/EXHIBIT MANAGER: That's r i g h t . 13 Okay. Sorry about this guys. 12:55 14 MR. KHOSROWSHAHI: No problem. 12:55 15 VIDEOGRAPHER/EXHIBIT MANAGER: I t should be 16 back up. 12:55 17 Q BY MR. KHOSROWSHAHI: Okay. So I g u e s S just 18 to c l a r i f y , Ms. Kenyon the word immediate r e a l l y 19 relates to when the employee f i r s t has knowledge that 20 they have an injury, and when they f i r s t have 21 knowledge, then they need to immediately report, i s 22 that accurate? 12:55 23 A Yes. 12:55 24 Q Okay. Now, what i s the time frame from when 25 they f i r s t have knowledge of i t and they report i t ? 97 BARKLEY ANGELA KENYON. VOLUME I Court Rmpottorw 1 "immediately," i s not meant to be punitive. Any 2 violation of the c r i t i c a l safety behaviors policy w i l l 3 result in termination, but that wording "immediately" 4 i s not meant to be punitive. 12:59 5 Q BY MR. KHOSROWSHAHI: So i f an employee came 6 to you and said, hey, I found out yesterday I had a 7 workplace-related injury and I'm t e l l i n g you about i t 8 today, and I could have called you yesterday, but I'm 9 t e l l i n g you now today, i t i s a one-day delay, I 10 apologize. 12:59 11 A I f they could have told us yesterday, then i t 12 i s a violation of c r i t i c a l safety behaviors policy and 13 they would be terminated. 12:59 14 Q And that' s not considered punitive to you 15 because of that one-day delay? 12:59 16 A I t -- 12:59 17 MR. JONES: Hold on, hold on, hold on, please. 18 Objection. You are simply arguing with the witness. 19 You don't l i k e the company's policy, but they are 20 allowed to have i t . You are just arguing with the 21 witness over i t . I t has been asked and answered 22 multiple times i n multiple ways. 23 MR. KHOSROWSHAHI: Please answer the question, 24 Ms. Kenyon. 25 THE WITNESS: Can you repeat your question? 101 BARKLEY ANGELA KENYON, VOLUME I Coort A a p o r t a r i 1 A Sure. The door could cause an i n j u r y 2 eventually. They may end up w i t h bmiising o r something 3 l i k e t h a t , so there was something i n the way t h a t 4 caused the i n j u r y . 5 Q And i f they had waited one day t o report t h a t 6 they bumped i n t o a door, and they had waited one day t o 7 report t h a t i n c i d e n t , would t h a t be a v i o l a t i o n t h a t 8 would subject them t o termination? 9 MR. JONES: Incomplete h y p o t h e t i c a l . Asked 10 and answered. Argumentative, 11 THE WITNESS: Yes, because they knew a t the 12 time they bumped i n t o the door t h a t i t could 13 p o t e n t i a l l y be a workplace i n j u r y . 14 Q BY MR. KHOSROWSHAHI: Okay. What i f an 15 employee has s t i f f n e s s , which l a t e r becomes p a i n f u l 16 over the course of a month, and then they f i n d out, 17 oh, t h i s i s due t o something I had done a t work, and 18 then they t e l l you when they f i n d out a f t e r t h a t month 19 has passed, would t h a t be considered a v i o l a t i o n ? 20 MR. JONES: Incomplete hypothetical. 21 THE WITNESS: Again, employees should report 22 as soon as they r e a l i z e t h a t i t i s a workplace i n j u r y . 23 So i f they don't r e a l i z e t h a t the s t i f f n e s s i s a 24 workplace i n j u r y u n t i l a month l a t e r , as soon as they 25 r e a l i z e i t , they should report it. 108 BARKLEYl ANGELA KENYON, VOLUME I Coorf Reporter! 1 as f o l l o w s : 2 "Question: Another hypothetical. 3 Considering t h i s p o l i c y here, l e t ' s say an 4 employee on the j o b gets a paper cut and 5 doesn't report t h a t u n t i l one day a f t e r 6 receiving the paper cut, does t h a t v i o l a t e 7 t h i s policy?") 8 MR. JONES: Same objections. 9 THE WITNESS: James, were you speaking? I'm 10 sorry. 11 MR. JONES: Yeah, I j u s t had my o b j e c t i o n . I 12 said same objections. Did you hear t h a t objection? 13 THE WITNESS: I d i d . Thank you. 14 So i t i s i n t e r e s t i n g t h a t you use t h i s 15 hypothetical. We a c t u a l l y use t h i s one i n t r a i n i n g 16 w i t h our employees, and s p e c i f i c a l l y mention i f you get 17 a paper cut, t h a t , yes, you are supposed t o report t h a t 18 immediately, because i t could cause an i n f e c t i o n o r 19 other issues t h a t may r e s u l t i n a workers' comp. claim. 20 So, yes, they would need t o report t h a t immediately as 21 well. And a day l a t e r , would be a v i o l a t i o n o f a 22 c r i t i c a l safety behavior. 23 Q BY MR. KHOSROWSHAHI: And they would be 24 terminated? 25 A Yes, s i r . 115 BARKLEY ANGELA KENYON, VOLUME Court fteporteri 1 l e g a l conclusion. 2 THE WITNESS: Because we needed t o complete 3 our i n v e s t i g a t i o n . 4 Q BY MR. KHOSROWSHAHI: Okay. And a f t e r the 5 i n v e s t i g a t i o n , you concluded what exactly? 6 MR. JONES: Asked and answered. 7 THE WITNESS: During the i n v e s t i g a t i o n , we 8 spoke w i t h her about her i n j u r y and asked her what 9 happened. She gave us a t i m e l i n e of events. We 10 concluded t h a t she d i d not report her i n j u r y t i m e l y , 11 which i s a v i o l a t i o n o f our c r i t i c a l safety behaviors, 12 and the reason she was terminated. 13 Q BY MR. KHOSROWSHAHI: And you believed that 14 t h a t outweighed your o b l i g a t i o n s t o provide her an 15 accommodation under the Fair Employment and Housing 16 Act? 17 MR. JONES: I t i s argumentative. Also an 18 incomplete h y p o t h e t i c a l . And misstates the f a c t s . 19 There i s nothing t o suggest they didn't accommodate 20 her. 21 THE WITNESS: She was placed on leave as an 22 accommodation while we were doing the i n v e s t i g a t i o n . 23 I t was determined she v i o l a t e d the c r i t i c a l safety 24 behaviors. That i s why she was terminated. 25 Q BY MR. KHOSROWSHAHI: Was there any discussion 138 BARKLEY ANGELA KENYON, VOLUME I Court fleportari 1 Q This category says that you have been 2 designated by Liqui-Box as the person most qualified as 3 to the creation, formation of i t s C r i t i c a l Safety 4 Behaviors Policy? 5 A Yes. 6 Q And I want to ask you a l i t t l e b i t more about 7 that category. 8 A Okay. 9 Q Did you personally have any involvement in 10 creating the C r i t i c a l Safety Behaviors Policy? 11 A Yes. 12 Q Did anyone, other than you, work with you to 13 create the C r i t i c a l Safety Behaviors Policy? 14 A Yes. 15 Q Who was that person? 16 A I worked with our chief operating officer, and 17 at the time our global safety manager. 18 Q Okay. Why did you include the chief operating 19 officer? 20 A Because he i s also very familiar with OSHA 21 standards and requirements, as i s the global safety 22 officer, and because he i s one of the senior leaders of 23 the company that oversees a l l of our operations 24 globally. 25 Q Can you describe what was done by you working 155 BARKLEY ANGELA KENYON, VOLUME Court Aeporteri 1 DEPOSITION OFFICER'S CERTIFICATE 2 3 STATE OF CALIFORNIA ) ) ss. 4 COUNTY OF LOS ANGELES ) 5 6 I , CHERYL L. MARQUIS, hereby c e r t i f y : 7 I am a d u l y q u a l i f i e d C e r t i f i e d Shorthand 8 Reporter i n the State o f C a l i f o r n i a , holder of 9 C e r t i f i c a t e Number CSR 6731, i s s u e d by t h e Court 10 R e p o r t e r s Board o f C a l i f o r n i a and which i s i n f u l l 11 f o r c e and e f f e c t . (Bus. & P r o f . S e c t i o n 8016.) 12 I am n o t f i n a n c i a l l y i n t e r e s t e d i n this action 13 and am n o t a r e l a t i v e o r employee o f any a t t o r n e y o f 14 the parties, o r o f any o f t h e p a r t i e s . (Civ. Proc. 15 Section 2025.320(a)). 16 I am a u t h o r i z e d t o a d m i n i s t e r oaths o r 17 affirmations pursuant t o C a l i f o r n i a Code o f C i v i l 18 Procedure, S e c t i o n 2093(b) and p r i o r t o b e i n g examined, 19 t h e deponent was f i r s t p l a c e d under o a t h o r a f f i r m a t i o n 20 by me. ( C i v . Proc. S e c t i o n 2025.320, 2025.540(a)) 21 I am t h e d e p o s i t i o n o f f i c e r t h a t 22 s t e n o g r a p h i c a l l y recorded t h e t e s t i m o n y i n t h e 23 f o r e g o i n g d e p o s i t i o n and t h e f o r e g o i n g t r a n s c r i p t i s a 24 true record of the testimony given. (Civ. Proc. S e c t i o n 25 2025.540(a)) 187 BARKLEY ANGELA KENYON, VOLUME Court Reporterf 1 I have n o t , and s h a l l n o t , o f f e r o r p r o v i d e 2 any s e r v i c e s o r p r o d u c t s t o any p a r t y ' s a t t o r n e y o r 3 t h i r d p a r t y who i s f i n a n c i n g a l l o r p a r t o f t h e a c t i o n 4 w i t h o u t f i r s t o f f e r i n g same t o a l l p a r t i e s o r t h e i r 5 a t t o r n e y s a t t e n d i n g t h e d e p o s i t i o n and making same 6 a v a i l a b l e a t t h e same time t o a l l p a r t i e s o r t h e i r 7 attorneys. (Civ. Proc. S e c t i o n 2025.320 ( b ) ) 8 I s h a l l n o t p r o v i d e any s e r v i c e o r p r o d u c t 9 c o n s i s t i n g of the deposition o f f i c e r ' s notations or 10 comments r e g a r d i n g t h e demeanor o f any w i t n e s s , 11 a t t o r n e y , o r p a r t y p r e s e n t a t t h e d e p o s i t i o n t o any 12 p a r t y o r any p a r t y ' s a t t o r n e y o r t h i r d p a r t y who i s 13 f i n a n c i n g a l l or p a r t of the action, nor s h a l l I 14 c o l l e c t any personal i d e n t i f y i n g i n f o r m a t i o n about t h e 15 witness as a s e r v i c e o r p r o d u c t t o be p r o v i d e d t o any 16 p a r t y o r t h i r d p a r t y who i s f i n a n c i n g a l l o r p a r t o f 17 t h e a c t i o n . (Civ. Proc. S e c t i o n 2025.320(c)) 18 19 Dated: February 12, 2021 20 21 22 23 24 25 188 BARKLEY! ANGELA KENYON. VOLUME Court fftporteri i EXHIBIT K2 Acosta V. Dura-Fibre LLC, Not Reported in Fed. Supp. (2018) (PPFOF) ^ 2, ECF No. 30. In an effort to improve safety, Dura-Fibre instituted a multi-component safety program 2018 WL 2433589 comprised of an accident reporting plan, training on safety Only the Westlaw citation is currently available. in the workplace, audits to ensure compliance with safety United States District Court, E.D. Wisconsin. procedures, and a progressive discipline program to address R. Alexander ACOSTA, Secretary of Labor, safety and reporting violations. D e f s Proposed Findings of United States Department of Labor, Plaintiff, Fact (DPFOF) K 4, ECF No. 27. The company's employee V. handbook also explains Dura-Fibre's dedication to a safe workplace. The handbook provides: "It is the company's DURA-FIBRE LLC, Defendant. responsibility to provide you with a safe place to work and to Case No. 17-C-589 give you the necessary safety training so that you can avoid I accidents to yourself or to others. It is your responsibility to work safely." ECF No. 33-14 at 10. Signed 05/30/2018 Under Dura-Fibre's Accident Reporting/Investigation Plan, Attorneys and Law Firms if an employee is injured or almost injured at work, he must David J. Rutenberg, United States Department of Labor report the injury or "near miss." Dura-Fibre instituted this Office of the Solicitor, Chicago, IL, for Plaintiff. plan to emphasize timeliness in reporting injuries and to create a "near miss" program to increase reports of unsafe acts that Brittany Lopez Naleid, Christopher P, Banaszak, Jessica M. did not result in injury. PPFOF ^ 33. The plan requires that Simons, Robert S, Driscoll, Reinhart Boemer Van Deuren, an employee notify a supervisor of an accident or "near miss" SC, Milwaukee, WI, John H. Zawadsky, Reinhart Boemer as soon as possible or by the end of the employee's shift. It Van Deuren, SC, Madison, Wl, for Defendant. 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 DECISION AND ORDER in an accident but could have." ECF No. 32-2 at 2. Dura- Fibre requires that employees report all injuries, even if the William C. Griesbach, Chief Judge employee does not consider the injury to be serious, reasoning *1 The Occupational Safety and Health Act (OSH Act) that an employee may be hurt more than he initially believes. prohibits employers from discharging or discriminating DPFOF ^11. Any employee that fails to report an accident or against an employee for engaging in activity protected by near miss in a timely manner is subjected to discipline up to and including termination. Id. ^ 14. the Act. 5ecp29 U.S C. § 660(c)(1). Plaintiff R. Alexander Acosta, Secretary of Labor, brought this action against Once an employee reports an occurrence to his supervisor, Defendant Dura-Fibre LLC, alleging Dura-Fibre violated the the supervisor must decide if the incident was an accident OSH Act's anti-retaliation provisions by punishing its former or a near miss by determining whether the employee was employee, Tim Jacobs, for reporting injuries to the company injured. Although the plan does not define "injury" and and thus interfering with Jacobs' right to report under the "physical harm," in deciding whether an employee is injured, Act. Federal jurisdiction exists pursuant to 28 U.S.C. § 1331. the supervisor considers whether the employee is bleeding, The case is before the court on the parties' cross motions for limping, favoring a body part, or hurting. If the supervisor summary judgment. For the following reasons, both summary determines that an accident occurred, as a result of his judgment motions will be denied. finding that the employee suffered physical harm or injury, he must investigate the situation to determine why the accident happened, where it occurred, and i f there are any trends BACKGROUND related to the accident. After the supervisor completes his investigation and fills out an investigation form, Dura- A. Dura—Fibre's Accident Reporting/Investigation Plan Fibre's safety coordinator reviews the completed form. Then Dura-Fibre, LLC, located in Menasha, Wisconsin, the Health and Safety Committee, which is comprised of manufactures industrial packaging and specialty laminated two representatives of management and at least two union paperboard products. PL's Proposed Findings of Fact WESTLAW © 2022 Thomson Reuters, No claim to original U.S. Government Works. Acosta v. Dura-Fibre LLC, Not Reported in Fed. Supp. (2018) members, assesses the accident by reviewing the incident Given the uncertain definition of the term "unsafe act" and report and accident investigation form. After its assessment, the disciplinary points employees receive for committing an the Committee completes its own Safety Incident Report and "unsafe act," employees are naturally reluctant to report any determines whether the employee should receive disciplinary injury to themselves. In theory, almost any act that results in points in accordance with Dura-Fibre's 24-point disciplinary a workplace injury can qualify as an unsafe act. The current program. president of Dura-Fibre has defined "unsafe act" as "any action by an employee that either resulted in, or could have *2 Under the disciplinary program, which is set forth in resulted in, themselves or another employee being harmed." the labor agreement between Dura-Fibre and the United Id. \ 25. Thus, employees who suffer injuries on the job Steelworkers Local 2-432, employees may be assigned a find themselves in a classic "catch 22": if they are injured designated number of points for violations of the company's at work, they must report the injury to a supervisor or face rules and policies, such as failing to report an injury to discipline, but if they do report an injury, management may a supervisor by the end of his shift, failing to use safety well conclude the injury resultedfromtheir own unsafe act for equipment, or committing an "unsafe act." Although an which they will also face discipline. Either way, the employee employee may gain points back i f he does not commit an risks discipline. It is in this context that Jacobs' claim arises. 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 B. Jacobs' Injury Reporting Committee considers a number of factors, including whether Jacobs began working for Dura-Fibre as a laminator machine the employee has a past history of unsafe acts, the severity lead operator in 2008. He had worked for Dura-Fibre's of the employee's injury caused by the unsafe act, and predecessor, Menasha Corporation, from 1985 to 2004. other contributing factors. As relevant to the instant case, As lead operator, Jacobs was responsible for the overall an employee who fails to report an on-duty accident or production of the laminating machine and oversaw four or injury to a supervisor before leaving work will receive eight five other employees who ran the machine. He was also disciplinary points. An employee who commits an unsafe act required to notify his supervisor when any employee reported will be assessed between foiu- to eight disciplinary points as an accident or near miss to him. Dura-Fibre valued Jacobs as determined by the Health and Safety Committee. an