United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1120 20th Street, N.W., Ninth Floor
Washington, DC 20036-3457
SECRETARY OF LABOR,
UNITED STATES POSTAL SERVICE,
Lisa A. Wilson and Kristen M. Lindberg, Attorneys; Heather R. Phillips, Counsel for Appellate Litigation; Joseph M. Woodward, Associate Solicitor of Labor for Occupational Safety and Health; M. Patricia Smith, Solicitor of Labor; U.S. Department of Labor, Washington, DC
For the Complainant
Teresa A. Gonsalves and Kimberly Richardson, Attorneys; Stephan J. Boardman, Chief Counsel for Labor Relations; United States Postal Service, Washington, DC
For the Respondent
Before: ROGERS, Chairman; ATTWOOD and MacDOUGALL, Commissioners.
BY THE COMMISSION:
issue on review is a citation issued by the Occupational Safety and Health
Administration to the United States Postal Service regarding two OSHA
recordkeeping regulations, 29 C.F.R. § 1904.29(b)(2) and (b)(3), alleging a
failure to record a work-related illness on the forms required by 29 C.F.R. Part
1904. We conclude that the Secretary has failed to prove a violation of the
cited regulations; thus, we vacate the portion of the citation that relates to
the alleged failure to record at issue.
Employee-A, an employee of USPS at its Seattle, Washington, mail processing center, submitted an application to USPS requesting protected leave under the Family and Medical Leave Act of 1993, 29 U.S.C. §§ 2601-2654. With the application, Employee-A submitted a completed copy of the Department of Labor’s Form WH-380, a health care provider certification for employees seeking FMLA-protected leave. In Employee-A’s WH-380, her physician described her illness and symptoms, and stated that she had a “serious health condition . . . caused by her work environment exclusively.” It is undisputed that USPS did not record this illness on either OSHA’s Form 300, Log of Work-Related Injuries and Illnesses, or OSHA’s Form 301, Injury and Illness Report.
issued USPS a citation alleging two violations of the recordkeeping
regulations—one violation of 29 C.F.R. § 1904.29(b)(2) (Item 1a), and one
violation of 29 C.F.R. § 1904.29(b)(3) (Item 1b)—for failing to record the
USPS contends that the citation should be vacated because: (1) the confidentiality provision of the FMLA regulations, 29 C.F.R. § 825.500(g), requires USPS to maintain Employee-A’s FMLA documentation in a separate system of confidential records and precludes USPS from recording the information about Employee-A’s illness on its OSHA log and report; (2) the knowledge of USPS’s FMLA Coordinator, who knew of Employee-A’s illness from the Form WH-380, is not imputable to USPS; and (3) there is no basis to infer that Employee A’s supervisor knew Employee-A had a work-related illness independent of the FMLA documents. Before we address the merits of USPS’s arguments, we first consider the Secretary’s claim on review that USPS waived its FMLA argument.
The Secretary contends USPS waived its argument that FMLA confidentiality requirements prohibited it from recording Employee-A’s illness, because this argument was not included as an affirmative defense in USPS’s answer and was not asserted until USPS filed its post-hearing brief with the judge. Commission Rule 34(b), 29 C.F.R. § 2200.34(b)(3)-(4) (requiring answer to “include all affirmative defenses being asserted,” and stating that failure to do so may “result in the party being prohibited from raising the defense at a later stage in the proceeding”). In the Secretary’s view, USPS’s FMLA argument should be considered an affirmative defense because it is “analogous” to a preemption claim under section 4(b)(1) of the OSH Act, 29 U.S.C. § 653(b)(1), which the Commission has long recognized as an affirmative defense. Rockwell Int’l Corp., 17 BNA OSHC 1801, 1803, 1995-97 CCH OSHD ¶ 31,150, p. 43,529 (No. 93-45, 1996). We disagree.
Commission Rule 34(b)(3)’s reference to affirmative defenses is to those recognized as such at common law—i.e., assertions raising arguments or new facts that, if proven, defeat a plaintiff’s claim even if the allegations in the complaint are true. See Ford Motor Co. v. Transport Indem. Co., 795 F.2d 538, 546 (6th Cir. 1986) (“An affirmative defense raises matters extraneous to the plaintiff’s prima facie case.”); see generally 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure §§ 1270-1271 (3d ed. 2004); 61A Am. Jur. 2d Pleading § 279. Therefore, “if the defense involved is one that merely negates an element of the plaintiff’s prima facie case [ ] it is not truly an affirmative defense and need not be pleaded [in the answer].” Sanden v. Mayo Clinic, 495 F.2d 221, 224 (8th Cir. 1974) (internal quotation marks and citation omitted).
Here, the Secretary asserts that USPS had a legal obligation to review the FMLA documents for OSHA recordkeeping purposes. USPS disagrees that it had such an obligation, asserting that the FMLA confidentiality requirements precluded it from reviewing the FMLA documents for OSHA recordkeeping purposes. In this respect, the parties’ arguments directly implicate the knowledge element of the Secretary’s prima facie case. See Astra Pharm. Prods., Inc., 9 BNA OSHC 2126, 2129, 1981 CCH OSHD ¶ 25,578, pp. 31,899-900 (No. 78-6247, 1981) (Secretary’s prima facie burden includes establishing that “the cited employer either knew or could have known of the condition with the exercise of reasonable diligence”), aff’d in pertinent part, 681 F.2d 69 (1st Cir. 1982). Accordingly, we find that USPS’s FMLA argument is not an an affirmative defense, and is not subject to waiver as the Secretary contends.
Even if the FMLA argument were considered an affirmative defense, we find that the issue was “tried by the . . . implied consent of the parties and [may therefore be] treated as if actually raised by the pleadings.” Bill C. Carroll Co., 7 BNA OSHC 1806, 1810, 1979 CCH OSHD ¶ 23,940, p. 29,032 (No. 76-2748, 1979). A finding of such consent is appropriate where “the party who should have pled the [affirmative] defense introduces evidence in support thereof without objection by the adverse party . . . .” Jones v. Miles, 656 F.2d 103, 107 n.7 (5th Cir. 1981). At the hearing, USPS’s counsel asked USPS manager Kenn Messenger if FMLA documentation must be kept confidential by USPS’s FMLA Coordinator. The Secretary failed to object, even though this question sought evidence that, from the Secretary’s standpoint, was unrelated to any other issue in the case. Compare In re Acequia, 34 F.3d 800, 814 (9th Cir. 1994) (“Where evidence . . . allege[d] to have shown implied consent was also relevant to the other issues at trial[,] [it] cannot be used to imply consent to try the [unpleaded] issue.”) (internal quotation marks and citation omitted). Also, after USPS included the FMLA argument in its post-hearing brief before the judge, the Secretary did not object in any way, such as by moving to strike the argument or requesting the opportunity to file a post-hearing reply brief. See Elliot Constr. Co., 23 BNA OSHC 2110, 2114, 2012 CCH OSHD ¶ 33,231, p. 56,065 (No. 07-1578, 2012) (considering arguments that relied on information not objected to until brief on review).
Finally, the Secretary has failed to show that he suffered any prejudice resulting from our consideration of USPS’s FMLA argument. While he asserts that, had he known USPS would raise this argument, he “might have” questioned Employee-A’s work supervisor about whether the supervisor knew of Employee-A’s illness apart from the FMLA documents, the Secretary has never requested a further opportunity to present evidence of the supervisor’s independent knowledge of Employee-A’s illness. Bill C. Carroll, 7 BNA OSHC at 1810, 1979 CCH OSHD at p. 29,032. Compare Nuprecon, LP, 22 BNA OSHC 1937, 1939, 2009-12 CCH OSHD ¶ 33,034, p. 54,384 (No. 08-1037, 2009) (prejudice where Secretary identified document he would have proffered had he been apprised applicability was in dispute). As such, we find no bar to our consideration of the FMLA argument.
“To meet [his] burden of establishing employer knowledge, the Secretary must show that the cited employer either knew or, with the exercise of reasonable diligence, could have known of the presence of the violative condition.” N&N Contractors, Inc., 18 BNA OSHC 2121, 2122, 2000 CCH OSHD ¶ 32,101, p. 48,239 (No. 96-0606, 2000), aff’d, 255 F.3d 122 (4th Cir. 2001). As discussed below, we reject the Secretary’s claim that USPS had constructive or actual knowledge of Employee-A’s illness because the FMLA confidentiality requirements precluded USPS from reviewing FMLA leave-request documentation for purposes of OSHA recordkeeping, and the Secretary’s attempts to establish the element of knowledge by other means also fail.
The Secretary argues that USPS was obligated to review such information to determine if it is required to be recorded on OSHA’s recordkeeping forms pursuant to OSHA’s recordkeeping regulations. USPS claims, however, that pursuant to the confidentiality provision of the FMLA regulations, the documentation at issue here must be kept confidential:
Records and documents relating to certifications, recertifications or medical histories of employees or employees’ family members, created for purposes of FMLA, shall be maintained as confidential medical records in separate files/records from the usual personnel files, and if ADA is also applicable, such records shall be maintained in conformance with ADA confidentiality requirements (see 29 C.F.R. § 1630.14(c)(1)), except that:
(1) Supervisors and managers may be informed regarding necessary restrictions on the work or duties of an employee and necessary accommodations;
(2) First aid and safety personnel may be informed (when appropriate) if the employee’s physical or medical condition might require emergency treatment; and
(3) Government officials investigating compliance with FMLA (or other pertinent law) shall be provided relevant information upon request.
29 C.F.R. § 825.500(g) (emphasis added). In response, the Secretary contends that the opening part of this provision implicitly permits review and disclosure of FMLA information for OSHA recordkeeping purposes because, he argues, the phrase “maintained as confidential . . . records” is not an absolute requirement, but rather allows disclosure for certain governmental purposes. We disagree.
By its terms, the confidentiality provision set forth in § 825.500(g) prohibits disclosure of FMLA medical information to supervisors and managers unless the information involves “necessary restrictions on the work or duties of an employee and necessary accommodations”; or the information is necessary for “emergency treatment.” 29 C.F.R. § 825.500(g)(3). See Superior Masonry Builders, Inc., 20 BNA OSHC 1182, 1184, 2002-04 CCH OSHD ¶ 32,667, p. 51,417 (No. 96-1043, 2003) (when determining the meaning of a standard, the Commission first looks to its text and structure); Blount Int’l, Ltd., 15 BNA OSHC 1897, 1902, 1991-93 CCH OSHD ¶ 29,854, p. 40,752 (No. 89-1394, 1992) (if provision’s wording is unambiguous, the plain language of the standard will govern, even if the Secretary posits a different interpretation). See also Christensen v. Harris County, 529 U.S. 576, 583 (2000) (“[w]hen a statute limits a thing to be done in a particular mode, it includes a negative of any other mode”) (quoting Raleigh & Gaston R.R. Co. v. Reid, 80 U.S. 269, 270 (1871)). Because the provision plainly prohibits the use of FMLA documentation for non-excepted purposes, we conclude that such documentation may not be reviewed by an employer for OSHA recordkeeping purposes. See Worcester Steel Erectors, Inc., 16 BNA OSHC 1409, 1418-19, 1993-95 CCH OSHD ¶ 30,232, p. 41,635 (No. 89-1206, 1993) (rejecting Secretary’s interpretation of a standard when it strains the plain meaning of the regulatory text).
Secretary also contends that the express exception in subsection (g)(3) applies
here, because the OSH Act and OSHA recordkeeping regulations constitute “other
pertinent law.” 29 C.F.R. § 825.500(g)(3). This ignores, however, that the
exception’s plain language permits disclosure only to “government officials.”
The parenthetical reference to “other pertinent law” simply addresses the reason
government officials are seeking the documents, not to whom the documents may be
disclosed. Here, if the FMLA-protected information were to be disclosed, it
would go beyond government officials—it would be seen by USPS personnel
examining the FMLA documents for non-FMLA purposes; further, as required by the
OSHA recordkeeping regulations, USPS employees and their representatives have
access to the OSHA injury and illness records. 29 C.F.R. § 1904.35(b)(2).
Therefore, this exception, like the rest of the provision, is unambiguous—it
does not permit the disclosure of FMLA medical information for purposes of OSHA
Contrary to the judge’s finding, the record also fails to establish that USPS had actual knowledge of Employee-A’s illness. The Secretary claims that the FMLA Coordinator who received Employee-A’s WH-380 (which contained a medical diagnosis of her illness and attributed the illness to her work) was a supervisor whose knowledge can be imputed to USPS. See Access Equip. Sys., Inc., 18 BNA OSHC 1718, 1726, 1999 CCH OSHD ¶ 31,821, p. 48,782 (No. 95-1449, 1999) (“[K]nowledge can be imputed to the cited employer through its supervisory employee.”). The judge agreed with the Secretary that the FMLA Coordinator was a supervisor. He also made inferences regarding the knowledge of Employee-A’s work supervisor. We decline to find knowledge on either of these bases.
determine whether an employee is a supervisor, the inquiry focuses on whether
the employee directed other employees’ work activities. Am. Eng’g & Dev.
Corp., 23 BNA OSHC 2093, 2095-96, 2012 CCH OSHD ¶ 33,235, p. 56,116-17 (No.
10-0359, 2012) (imputing knowledge of backhoe operator who lacked authority to
hire or fire but was charged with giving work instructions and orders to other
employees); Dover Elevator Co., 16 BNA OSHC 1281, 1286, 1993-95 CCH OSHD
¶ 30,148, p. 41,480 (No. 91-862, 1993) (“[A]n employee . . . empowered to direct
that corrective measures be taken is a supervisor.”). Here, while the FMLA
Coordinator had authority to decide FMLA claims, this authority did not relate
to control of employee work, and the record does not show that the FMLA
Coordinator otherwise had the requisite control indicative of supervisory
status. Indeed, Kenn Messenger, a USPS manager, testified that FMLA Coordinators
have no “direct employees” and make no decisions about other employees’ work.
Thus, the Secretary has failed to establish USPS’s actual knowledge of
Employee-A’s illness through the FMLA Coordinator. Moreover, as indicated above,
even if the FMLA Coordinator had been a supervisor or USPS had otherwise known
of the illness from Employee-A’s WH-380, the FMLA confidentiality requirements
would have precluded recordation of the illness on the OSHA recordkeeping forms
required by 29 C.F.R. Part 1904.
Finally, there is no support in
the record for the conclusion that Employee-A’s work supervisor knew of her
illness from sources other than the FMLA documentation. First, despite the
Secretary’s contention that Employee-A “likely informed her supervisor of her
work-related illness,” there is no direct evidence that she or anyone else
informed her supervisor of her illness or the reason for her leave request, or
that the supervisor knew of it. The judge inferred such knowledge based on two
factors: (1) a letter from the FMLA Coordinator to Employee-A about her leave
request which, based on a notation on the letter, Employee-A’s supervisor
evidently saw, and (2) USPS’s FMLA claims procedure, under which supervisors are
to be informed of FMLA claims and approvals related to their subordinates.
However, the letter neither identified Employee-A’s condition nor indicated
whether it was work-related. Further, consistent with the FMLA confidentiality
provision, USPS’s FMLA claims procedure does not require supervisors to be
informed of the nature or work-relatedness of an employee’s health condition.
While the Secretary claims for the first time on review that, as a routine
matter, USPS employees reported work-related illnesses to their supervisors, and
it is thus “likely” that Employee-A did so here, the Secretary failed to prove
such a consistent pattern of conduct that would permit this to be deemed a
“routine practice” pursuant to Federal Rule of Evidence 406.
We vacate the portion of Citation 1, Items 1a and 1b, that pertains to Employee-A’s illness. We also agree with USPS that it is appropriate to reduce the penalty because the citation is affirmed with respect to only one of the two employees upon whom it was based. We therefore assess a penalty of $2,500.
Thomasina V. Rogers
Cynthia L. Attwood
Heather L. MacDougall
Dated: September 29, 2014 Commissioner
United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1120 20th Street, N.W., Ninth Floor
Washington, DC 20036-3457
SECRETARY OF LABOR, :
v. : OSHRC DOCKET NO. 08-1547
U.S. POSTAL SERVICE (Seattle, WA), :
Appearances: Evan H. Nordby, Esquire Stephen C. Yohay, Esquire
U.S. Department of Labor Ogletree Deakins
Office of the Solicitor Leigh Bonds, Equire
Seattle, Washington U.S. Postal Service
For the Complainant. For the Respondent.
Before: Chief Judge Irving Sommer
DECISION AND ORDER
This proceeding is before the Occupational Safety and Health Review Commission (“the Commission”) under section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. (“the Act”). The Occupational Safety and Health Administration (“OSHA”) conducted an inspection of a facility of the U.S. Postal Service (“USPS”) in Seattle, Washington, from March 19, 2008 to May 23, 2008. As a result, on September 10, 2008, OSHA issued a citation alleging “repeat” violations of 29 C.F.R. 1904.29(b)(2) and (b)(3) for failing to record two work-related illnesses as required. Respondent USPS contested the citation. The hearing in this matter was held in Seattle, Washington, on November 18 and19, 2009. Both parties have filed post-hearing briefs.
The cited facility is USPS’s Processing and Distribution Center (“P&DC”) in Seattle, Washington. The P&DC is the main USPS facility in the Seattle area for processing mail. It is a large facility with highly automated processing equipment. The facility operates 24 hours a day, with three shifts, and has about 1,200 employees. The non-supervisory workers consist of “regular” and “casual” employees. Regular employees are represented by postal unions, and their assignments are subject to collective bargaining agreements. Casual employees are not represented by unions, and their work assignments vary according to factors such as mail volume, unscheduled absences, and limits imposed by the union agreements. Union agreements also limit the percentage of casual workers at the P&DC. (Tr. 174-77,192-95, 202, 205-06).
began working at the P&DC as a “Christmas casual” on November 7,
the Christmas season, the P&DC cut back the number of casuals in N.B.’s work
area but kept N.B. on. She started working at other mail sorting machines in
January 2008, such as the DIOS and DBCS machines.
On January 17, at 11 p.m., N.B. was assigned to be trained on the Flat Sorting Machine (“FSM”). She stood by the machine as a co-worker showed her how to load and feed the FSM. As the feeding process took place, N.B.’s eyes began burning, itching and watering. Her face felt hot, like it was burning, and she also smelled a burning “rubbery” smell. These symptoms began within 10 minutes of beginning the feeding of the FSM. N.B. finished her training between 3 and 3:30 a.m. During her training, she took three or four quick restroom breaks to wash her face, which helped the symptoms. She told her co-worker about the symptoms. (Tr. 96-101, 105).
On January 20, when N.B. reported for work, Rosanna Cortez, a supervisor, assigned her to work on the FSM. While she was feeling fine when she got to work, N.B. began to have the same symptoms as before within 10 minutes of beginning to feed the FSM. As she continued to work on the machine, she also began experiencing trouble breathing, as if pressure were being put on her chest. She told her co-workers on the FSM of her symptoms, and one suggested she tell Richard Hitt, the FSM supervisor. Since she could not leave the machine in the middle of processing a “zone,” she continued to work but took short restroom breaks to wash her face in between zones. After finishing the last zone, N.B. encountered Mr. Hitt as she was leaving the restroom. Mr. Hitt told her she did not “look good,” and she told him about her symptoms from working on the FSM. Mr. Hitt took her to see Ms. Cortez. After discussing the matter, the two supervisors at first told her to take her lunch break. Ms. Cortez then told her that she had no more work for her that shift and that she should go home. N.B. waited until she felt well enough to drive and then went home and used the medications Dr. Zachariah had prescribed for her in December. The medications alleviated her symptoms, and since she did not want to worry her husband, who had recently had a heart attack, she decided not to call the doctor. (Tr. 102-09).
N.B. returned to work as scheduled on January 24. She asked Ms. Cortez if she needed to get a doctor’s note for having left early on January 21. Ms. Cortez told her that since she was feeling fine upon her return, she did not need to get a doctor’s note or other documentation. N.B. discussed with supervisors on several more occasions the symptoms she had had while working on the FSM on January 20 and 21. On February 7, she told Mr. Wind about the symptoms and asked to be reassigned from the FSM for her February 10 shift. She was nonetheless assigned to the FSM on February 10, and she asked Ms. Cortez to reassign her, citing her illness. Ms. Cortez told her they had no one else to work there and that N.B. had to work on the FSM. Another casual traded places with N.B. on February 10 before the feeding of the FSM began. On February 15, another supervisor assigned N.B. to the FSM. After N.B. convinced him that she should not work there, again citing her illness, Christine Batara, a different supervisor, questioned her about giving the supervisors a “hard time” about working on the FSM. N.B. explained that, although she thought that the FSM was an easy place to work, it made her ill. Ms. Batara indicated to N.B. that she could be terminated and referred her to Mr. Wind, who told her that she had to either work on the FSM on February 17 and 18 or call in sick. Mr. Wind ultimately allowed N.B. to exchange assignments with another employee on February 17. During her shift on February 17, N.B. asked a technician to get her a dust sample from the FSM area so that she could try to find out what was making her sick. (Tr. 109-19).
did not work on February 18. On February 19, at the end of her shift, Mr. Wind
told N.B. that she had to go to her doctor and get documentation stating she
could work everywhere in the P&DC or she would be fired. That same day, N.B.
went to her regular doctor, Joy Ziemann, in Federal Way.
N.B. visited Dr. Paul Darby of Franciscan Occupational Medicine on February 22, to begin allergy testing. Dr. Darby took N.B.’s medical history, including the symptoms she had had while working at the FSM. At the conclusion of the visit, he gave N.B. a note setting out a diagnosis of “Allergic Reaction” and a “Key Objective Finding” of “Allergic reaction, bronchospasm to machine dust from [FSM].” Under “Other Restrictions,”the note stated: “No work with or in the area of [FSM].” The note also stated that N.B. was not otherwise restricted and that allergy testing was pending. N.B. took the notes from Drs. Darby and Ziemann to the P&DC on the evening of February 22. She presented the notes to Ms. Batara and Mr. Wind, and Ms. Batara initialed the notes as being received. N.B. was not permitted to return to work, however, since the doctors’ notes did not say that she could work on the FSM. N.B. then filled out the paperwork for, and filed, a Federal Worker Compensation claim. She submitted two forms, as the first form she filed was not the proper form. N.B. went back to Dr. Darby three times for follow-up allergy testing, but she was never diagnosed with an allergy to a specific substance. This was because Dr. Darby’s testing was basic in-office testing, and while he was going to refer her to another doctor for further allergy testing, those tests would have cost from $1,000.00 to $5,000.00. N.B. was not able to pursue that testing because she could not afford to pay for it out of her own pocket. (Tr. 128-45, 155-57; C-5A, C-5B, C-7, C-8).
initiated the inspection in this case after receiving complaints from N.B. and
another employee, “A.R.,” about the air quality in the areas where they worked
in the P&DC. The OSHA industrial hygienist (“IH”) who conducted the
inspection received medical information from the two employees indicating their
doctors believed the employees were allergic to the dust in their work
Based on her conversations with the employees and the medical information she received, the IH concluded that the incidents relating to N.B. and A.R. were required to be recorded on the P&DC’s illness/injury logs and incident reports. When she requested the P&DC’s Form 300 illness/injury logs and Form 301 incident reports, however, she discovered that neither of the incidents had been recorded. During her inspection, the IH found no other discrepancies in the P&DC’s illness and injury record-keeping. (Tr. 20-23, 44-45, 66-67).
Admissibility of Exhibits C-11 and C-12
At the hearing, the Secretary moved to have Exhibits C-11 and C-12 admitted. USPS objected, and I denied the motion. (Tr. 285-96). After the hearing, and upon further review of the record in this matter, I concluded C-11 and C-12 should have been admitted. On February 2, 2010, I issued an order admitting the documents and giving the parties an opportunity to respond. Neither has done so, but, for completeness of record, the reasons for admitting the documents follow.
C-11 and C-12 clearly relate to A.R., the second employee involved in this case.
C-11 and C-12 are both letters to A.R., on USPS letterhead, that address A.R.’s
request for FMLA-protected leave. C-11, dated March 6, states that USPS’s
Attendance Support Office had received the Form WH-380 her doctor had completed.
It also states that the form is incomplete and explains what additional
information is needed. C-11 is signed by “Fred Santiaguel, FMLA Coordinator Tour
3.” Below that signature is a “Note to Supervisor” that states: “Please have the
employee sign and date below verifying that s/he received his/her copy of this
letter and return the signed copy to me.” A.R.’s signature appears below that
note, as does the date March 8. C-12, dated April 8, is from USPS’s Human
Resources, Seattle District Headquarters. About halfway down the page, C-12
provides A.R.’s “Case ID” number, describes her condition as a “Serious Health”
condition, and categorizes it as a “Chronic Condition – Allergy.” It also
states: “Approved Date: 04/04/08.” C-12 additionally describes the facility’s
forthcoming transition to an interactive voice response (“IVR”) telephone system
for employees to call when reporting unscheduled absences. C-12 is also signed
by “Fred Santiaguel, FMLA Coordinator – T-3.”
USPS concedes A.R. was an employee of the Postal Service and that she submitted
an FMLA leave form to USPS. (Tr. 297). Further, Kenn Messenger, the former
senior manager for distribution operations at the P&DC, testified that he
had not seen C-11 and C-12 before but had seen similar letters, that he knew the
process by which application for leave under the FMLA was made, and that he had
received FMLA training as a manager with USPS. He was also familiar with USPS’s
transition to the IVR system, as described in C-12. (Tr. 278-88). Finally, AD
Flack, the OSHA IH who conducted the inspection, testified that C-11 was one of
the documents that A.R. had provided her during the inspection. (Tr. 40-41). I
agree with the Secretary that USPS cannot seriously object based on foundation
to admitting C-11 and C-12 into evidence. As the Secretary has pointed out, the
documents are from USPS’s own records and are self-authenticating.
Admissibility of Exhibits C-4, C-5 and C-6
C-4, C-5 and C-6 are the medical records relating to the two employees involved
in this matter, N.B. and A.R.
Federal Rule of Evidence (“FRE”) 803 sets out exceptions to the hearsay rule, even though the declarant is available as a witness. FRE 803(4) provides the following exception:
Statements made for purposes of medical diagnosis or treatment and describing medical history, or past, or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonable pertinent to diagnosis or treatment.
the Secretary asserts, the statements N.B. and A.R. made to their doctors in
regard to the symptoms they had experienced while working at the P&DC
facility were in furtherance of their respective diagnoses and treatments and
are thus admissible for the truth of the matters asserted therein under FRE
803(4). See U.S. v. Yazzie, 59 F.3d 807, 812 (9th Cir.
I also agree with the Secretary that the statements in the documents that reflect the doctors’ medical findings as to N.B. and A.R. are admissible. FRE 803(6), another exception to the hearsay rule, even though the declarant is available as a witness, provides for the admission of “Records of Regularly Conducted Activity” as long as the records are properly certified by the custodian of the records. C-4A, C-5A and C-6A are copies of the doctors’ records in this matter, and they have been properly certified. As the Secretary notes, the Ninth Circuit has held that medical records are “classic” business records admissible under FRE 803(6). U.S. v. Hall, 419 F.3d 980, 987 (9th Cir. 2005).
Having found the documents admissible, I turn now to their relevance and reliability. The documents are clearly relevant, as they support the Secretary’s assertion that N.B. and A.R. were made ill by exposure to dust in their respective work areas and that USPS was required to record their illnesses under the cited standards. I also find that the documents are reliable. In this regard, I note that N.B.’s testimony, which is summarized above in the background section of this decision, was consistent with what she told Drs. Ziemann and Darby, as reflected in C-4A and C-5A. And, her testimony was not refuted by other witnesses who testified, as discussed below. I observed the demeanor of N.B. as she testified, including her facial expressions and body language, and I found her to be a credible and convincing witness. Her testimony is credited, and it supports a conclusion that the statements in C-4A and C-5A are reliable. A.R. did not testify. C-11 and C-12, however, show A.R. requested FMLA-protected leave by submitting a Form WH-380 her doctor completed. They also show that while A.R.’s request was initially found to be incomplete due to a lack of certain information, it was approved on April 8. C-12 describes A.R.’s illness as a “Serious Health” condition and categorizes it as a “Chronic Condition – Allergy.” C-11 and C-12, USPS’s own records, support a conclusion that what A.R. told her doctor, as in C-6A, was reliable. Finally, there is no reason to question the medical findings of the doctors in this case, as set out in their records.
I have considered USPS’s arguments that the statements in C-4A-B, C-5A-B and C-6A-B are inadmissible and its further arguments indicating that the claims of N.B. and A.R. are suspect and unreliable. See, e.g., R. Brief, pp. 16-18, 21-29. These arguments are rejected, and, as noted above, C-4A-B, C-5A-B and C-6A are admitted and found to be relevant and reliable.
Whether USPS Violated the Cited Standards
The citation alleges that USPS violated 29 C.F.R. 1904.29(b)(2) and (b)(3) when it did not record the incidents described above relating to N.B. and A.R. The cited standards require that OSHA 300 Log entries and 301 Incident Reports be completed “within seven (7) calendar days of receiving information that a recordable injury or illness has occurred.” A “recordable injury or illness” is a work-related injury or illness that results in “restricted work” and/or “medical treatment beyond first aid,” among other possibilities. See 29 C.F.R. 1904.7(b)(1).
To prove a violation of an OSHA standard, the Secretary must establish that: (1) the standard applies; (2) the terms of the standard were not met; (3) employees had access to or were exposed to the cited conditions; and (4) the employer knew or could have known of the cited conditions with the exercise of reasonable diligence. See, e.g., Kulka Constr. Mgmt. Corp., 15 BNA OSHC 1870, 1873 (No. 88-1167, 1992). There is no dispute that USPS did not record the incidents relating to N.B. and A.R. There is also no dispute that USPS received the notes described above from N.B.’s doctors, that is, C-4B and C-5B, pp. 11-12, on February 22. Further, based on my findings supra, USPS received the Form WH-380, completed by A.R.’s doctor, on March 6, and USPS approved A.R.’s request for FMLA leave on April 8. See C-11, C-12. USPS contends, however, that the Secretary has not proved the incidents were work-related illnesses required to be recorded. It also asserts that the Secretary has not proved the knowledge element.
As to whether the incidents were work-related illnesses, as the Secretary notes, an injury or illness is “work-related” if “events or exposures at work either caused or contributed to the problem.” Home Depot #6512, 22 BNA OSHC 1863, 1865 (No. 07-0359, 2009) (citing Occupational Injury and Illness Recording and Reporting Requirements: Final Rule, 66 Fed. Reg. 5916, 5917 (Jan. 19, 2001)) (“Final Rule”). “[P]ure speculation that ‘some’ event in the workplace may have caused or contributed to an injury or illness” is not enough. Home Depot at 1865. But, if the work itself is “a tangible, discernible causal factor,” an injury or illness is work-related. Final Rule at 5929.
As the Secretary also notes, the standard does not require a final diagnosis of a particular illness or exposure to a specific substance, because the record-keeping system is designed to gather information about what may be latent trends in illnesses and injuries within the workforce. As OSHA stated in the preamble to the Final Rule:
It is evident from the statute that Congress wanted employers to keep accurate records of non-minor injuries and illnesses, in part, to serve as a basis for research on the causes and prevention of industrial accidents and diseases. This research is needed, among other reasons, to further examine and understand those occupational factors implicated as contributory causes in injuries and diseases. To serve this purpose, the records should include cases in which there is a tangible connection between work and an injury or illness, even if the causal effect cannot be precisely quantified, or weighed against non-occupational factors. (Emphasis added).
Final Rule at 5930. The Secretary
points out that the preamble to the Final Rule cites approvingly to the
Commission’s approach in General Motors Corp., 8 BNA OSHC 2036, 2039-40
(No. 76-5033, 1980). “The issue in General Motors was whether the employer was
required to record respiratory ailments of three employees, based on notations
from the employees’ treating physicians that their ailments were probably
related to exposure to a chemical substance at work.” Final Rule at 5930. The
Commission held the illnesses recordable. General Motors at
USPS agrees with the Secretary that the “tangible, discernable causal factor” is the test to show that an injury or illness is work-related. It urges, however, that a settlement between OSHA and NAM, the National Association of Manufacturers, reached after NAM filed a challenge to the Final Rule, puts the burden on the Secretary to show an injury or illness is work-related, as follows:
Section 1904.5(b)(3) states that
if it is not obvious whether the precipitating event or exposure occurred in the
work environment or elsewhere, the employer “must evaluate the employee’s work
duties and environment to decide whether or not one or more events or exposures
in the work environment caused or contributed to the resulting condition or
significantly aggravated a pre-existing condition.” This means that the employer
must make a determination whether it is more likely than not that work events or
exposures were a cause of the injury or illness, or a significant aggravation to
a pre-existing condition. If the employer decides the case is not work-related,
and OSHA subsequently issues a citation for failure to record, the Government would have the burden of
proving that the injury or illness was work-related. (Emphasis
R. Brief, pp. 12-14.
on the foregoing, A.R.’s illness was work-related and recordable. The Form
WH-380 that her doctor completed describes A.R.’s medical condition as “allergic
rhinitis and conjunctivitis with severe eye & nose irritation/nosebleed
headaches caused by her work environment exclusively. Primarily dust as well as
I also find that N.B.’s illness was work-related and recordable. C-4B, the note from Dr. Ziemann, gives N.B.’s diagnosis as “Allergic Reaction.” It also states that “she should not work the FSM (flat sort machine) due to allergic reaction.” C-5B, pp. 11-12, the note from Dr. Darby, gives N.B.’s diagnosis as “Allergic Reaction.” It states, under “Key Objective Finding(s),” “Allergic reaction, bronchospasm to machine dust from Flat Sorting Machine.” It also states, under “Other Restrictions/Instructions,” “No work with or in the area of Flat Sorting Machine.” These two documents, in my view, show that N.B.’s illness was work-related. They also show that the illness was recordable because N.B. was restricted in her work duties.
USPS points to certain testimony in support of its claim that N.B.’s illness was not work-related and recordable. For example, Mr. Hitt, the FSM supervisor, testified that as he recalled, N.B. had told him only that she was unable to continue working on the FSM. He did not recall her describing any symptoms or being in any distress or short of breath. (Tr. 164-66). On cross-examination, however, Mr. Hitt agreed that in a phone interview with an OSHA official, he stated that N.B. had told him the dust was excessive. He further agreed that he had written and signed C-10, a “Memorandum to Record” dated April 11. (Tr. 169-72). C-10 states, in pertinent part, as follows:
On 21 January 2008, I had employee [N.B.], from Automation, on my AFSM 100s for training. At that time, she approached me and informed me she was having difficulty working on the AFSMs. She told me her eyes were affecting her.
Rosanna Cortez, a distribution operations supervisor at the P&DC, testified she recalled Mr. Hitt bringing N.B. to her and stating that N.B. could not work at the FSM. When Ms. Cortez asked why, N.B. said that “she was tired, it’s heavy there, and it’s dusty.” As Ms. Cortez recalled, N.B. said nothing about having had an allergic reaction to the FSM. Also, N.B.’s eyes did not appear to be red, and she did not seem to be short of breath or to have any problems with her face. (Tr. 267-70). On cross-examination, Ms. Cortez agreed she had written an e-mail on February 8 to other supervisors at the P&DC that stated: “[N.B.] asked NOT TO WORK on the AFSM due to dust problems; can we trade somebody to work for her Sunday night?” Ms. Cortez also agreed she had told an OSHA official that N.B. had had a “pretty good job performance.” (Tr. 272-77).
Pam Cook, currently a senior manager at the P&DC, was a manager of distribution operations at the P&DC in February 2008. She testified about the automated equipment at the P&DC and the fact that extensive maintenance, including vacuuming, is done of the equipment to ensure proper operation and that the electric eyes are not obscured by dust. She said that, in her opinion, an FSM does not give off enough dust to collect in a bag; to do so, one would need to get the dust out of the vacuum bag a maintenance employee had filled upon vacuuming the inside of an FSM. (Tr. 173-78, 187-92).
Ms. Cook further testified that she first became aware of an employee not being able to work on the FSM equipment in a staff meeting in which Mr. Wind reported it. She told Mr. Wind that, per standard procedure, if the employee could not perform the full functions of her job, she would need to provide medical documentation stating what she could or could not do. Ms. Cook next heard about the situation when Ms. Batara called her on February 22 about the medical documentation that N.B. had provided. After Ms. Batara read her the doctors’ notes, Ms. Cook spoke to N.B. on the phone and told her the notes did not give her a medical rationale that allowed her to make a decision about whether work was available for her. She also told N.B. that she would need further documentation that would explain in detail the medical rationale for N.B. not being able to work on the FSM. Ms. Cook noted that it was not her job to decide whether N.B. had reported a condition that was recordable on OSHA forms; that was up to the safety office. (Tr. 196-203).
cross-examination, Ms. Cook stated that the only documents she had seen relating
to N.B. were the doctors’ notes. She agreed the note from Dr. Darby stated,
under “Other Restrictions,” “No work with or in the area of flat sorting
machine.” She also agreed that it stated: “Allergic reaction, bronchospasm to
machine dust from flat sorting machine.” See C-5B, p. 12. Despite these
statements, she wrote in a memo concerning N.B.: “Management is unaware of any
exposure to take precautions for.” In another memo, she wrote that: “It is a
fact that [N.B.] had some allergic reaction (January 21st) from
I don’t have any knowledge that it even occurred personally. It’s all – this is all after the fact hearsay to me. So, no I don’t have any facts that any of it happened. I don’t have any knowledge that anything occurred, or whether any of it’s true or untrue.
disagree the foregoing supports USPS’s position. While Mr. Hitt and Ms. Cortez
indicated on direct that they did not recall N.B. being in any distress or
reporting any symptoms to them, their testimony on cross-examination in essence
contradicts their testimony on direct and supports the testimony of N.B. And,
Ms. Cook’s testimony about the extensive maintenance the P&DC equipment
undergoes, including the FSM, is no basis for concluding that the FSM does not
emit dust that may trigger an allergic reaction in some individuals, in light of
contrary evidence in the record.
A final argument of USPS is that N.B.’s illness was not recordable because it did not meet the definition of “restricted work.” R. Brief, pp. 15, 22. Restricted work includes situations where, as a result of work-related illness or injury, a physician or other licensed health care professional recommends that the employee not perform one or more of the routine functions of his or her job. See 29 C.F.R. 1904.7(b)(4)(i). An employee’s “routine functions” are those work activities the employee regularly performs at least once a week. See 29 C.F.R. 1904.7(b)(4)(ii).
USPS asserts that N.B.’s work on the FSM did not meet the above test because it was not “routine.” It points out she was a casual employee with no routine assignments and that she worked only intermittently on the FSM. R. Brief, p. 22. The Secretary notes, however, that USPS’s own witnesses confirmed that working at the FSM was a routine duty of casual employees. Ms. Cook testified casual employees are hired and must be available to work throughout the P&DC as needed. (Tr. 194-96, 205-06). Mr. Hitt testified that, as the FSM supervisor, he had casuals working for him at least weekly. (Tr. 168). And, N.B. testified that USPS tried to assign her to the FSM on multiple occasions over two weeks in February 2008 and that she was terminated as she could not work on the FSM. (Tr. 107-20, 135-37). S. Brief, p. 20. In view of the record, I find that N.B.’s work on the FSM met the definition of “routine functions” and resulted in “restricted work” as set out in the standard.
on the foregoing, the Secretary has met the first three elements of her burden
of proof. As to the fourth element, that is, knowledge, the Secretary must show
that USPS either knew, or could have known with the exercise of reasonable
diligence, that it was required to record the incidents relating to N.B. and
A.R. As to N.B., C-4B and C-5B, pp. 11-12, are the doctors’ notes N.B. presented
to Ms. Batara and Mr. Wind on February 22. As found above, those notes were
sufficient to inform USPS that N.B.’s illness was recordable. In particular, the
notes stated that she had had an allergic reaction to the dust from her work on
the FSM and that she should not work on the FSM. Ms. Batara and Mr. Wind were
both supervisors of N.B. (Tr. 91, 131-35, 197-98, 200). Further, Kenn Messenger
testified that employees report work-related illnesses and injuries to their
supervisors. (Tr. 282). And, Pam Cook testified that it is up to the P&DC’s
safety office to decide if an incident is recordable. (Tr. 203). It is
reasonable to infer from this testimony that an employee’s supervisor, upon
receiving information like the notes N.B. presented, is responsible for
providing the information to the safety office. The safety office then
determines if the incident is recordable. N.B.’s supervisors received her
doctors’ notes on February 22. The supervisors thus should have provided the
notes to the safety office for proper recording.
to A.R., I find that the Form WH-380 that A.R.’s doctor completed, so that she
could apply for FMLA leave, provided the P&DC with clear notice that A.R.
had a work-related illness that was required to be recorded. Further, C-11 and
C-12, the letters from Mr. Santiaguel about her application, establish that
while her FMLA claim was initially found to be incomplete, it was approved on
April 8. C-12 refers to N.B.’s condition as a “Serious Health” condition and
categorizes it as a “Chronic Condition – Allergy.”
also agree with the Secretary that Mr. Santiaguel, the FMLA coordinator who
approved A.R.’s application, was a supervisor for knowledge purposes in this
case. Mr. Messenger testified that FMLA coordinators review and decide FMLA
claims. He also testified that while FMLA coordinators do not actually supervise
anyone’s work, they are not union members and “their pay scale is executive and
administrative pay scale.” (Tr. 282-84, 293). As the Secretary notes, an
employee who has been delegated authority over other employees, even
temporarily, may be considered a supervisor for purposes of imputing knowledge.
See Propellex Corp., 18 BNA OSHC 1677, 1680 (No. 96-265, 1999) (citation
omitted). I conclude, consequently, that Mr. Santiaguel was a supervisor for
purposes of knowledge in this matter and that, because he reviewed and approved
A.R.’s FMLA application, his knowledge of her condition may be imputed to
Based on the foregoing, the Secretary has shown that USPS had knowledge of the illnesses of the two employees, A.R. and N.B. She has also shown that USPS had knowledge their illnesses were required to be reported and recorded. The alleged violations are accordingly affirmed.
Whether the Violations were Repeated
To demonstrate a “repeat” violation, the Secretary must establish the employer was previously cited for a violation of the same regulation or condition, or one that is substantially similar, and that the prior citation had become final before the alleged repeat violation. Potlatch Corp., 7 BNA OSHC 1061, 1063 (No. 16183, 1979). The Secretary’s Exhibit C-3 contains copies of a number of final orders and informal settlement agreements, and related documents, issued within the past three years for violations of 29 C.F.R. 1904.29(b). C-3 includes final orders for violations of 29 C.F.R. 1904.29(b)(3) that were issued by OSHA’s Bellevue Area Office to other Seattle-area USPS facilities.
USPS does not dispute that the documents contained in C-3 show a prima facie case of repeat violations. It urges, however, that that is not the end of the inquiry and that the Secretary must also show the actual violations in this case were substantially similar to those in C-3. R. Brief, pp. 32-34. Upon reviewing C-3, I find that the Secretary has shown that the previous violations are substantially similar to those in this case. In particular, several of the previous citations alleged violations of 29 C.F.R. 1904.29(b)(3) in circumstances similar to those in this case, that is, a recordable incident was not recorded as required. The violations here were properly classified as repeat. Items 1a and 1b of Repeat Citation,1 alleging violations of 29 C.F.R. 1904.29(b)(2) and 29 C.F.R. 1904.29(b)(3), are affirmed as repeat violations.
The Secretary has proposed a total penalty of $5,000.00 for Items 1a and 1b. In assessing penalties, the Commission is to give due consideration to the gravity of the violations and to the size, history and good faith of the employer. See Section 17(j) of the Act. The Secretary asserts that the proposed penalty is appropriate in view of USPS’s large size and the fact that USPS has had multiple previous violations of OSHA’s record-keeping standards. The OSHA AD who conducted the inspection testified in this regard (Tr. 42-43). I find the proposed penalty of $5,000.00 to be appropriate. That penalty is accordingly assessed.
Findings of Fact and Conclusions of Law
The foregoing decision constitutes my findings of fact and conclusions of law in accordance with Federal Rule of Civil Procedure 52(a).
Based upon the foregoing findings of fact and conclusions of law, it is ordered that:
1. Repeat Citation 1, Items 1a and 1b, alleging violations of 29 C.F.R. 1904.29(b)(2) and 29 C.F.R. 1904.29(b)(3), is AFFIRMED, and a total penalty of $5,000.00 is assessed.
Date: April 2, 2010