Safety and OSHA News

Was employee fired for series of workers’ comp claims?

A worker says he was wrongfully fired after filing three workers’ comp claims in an eight-year period. The company says he was fired for violating a lockout/tagout policy. Can the company get the worker’s lawsuit thrown out?

Alvin Stepp worked as a mechanic for JBS Swift in Louisville, KY. He started working at the company in 2005 and was later promoted to master mechanic.

Stepp has limited hearing due to a childhood illness and claims he was harassed by co-workers throughout his employment at Swift. He claims other employees ridiculed him and took advantage of his lack of hearing. When Stepp reported this to his supervisors, he says they laughed off the other workers’ behavior as a joke.

Stepp alleges he was subjected to higher standards of performance than other employees following his workers’ comp claims in 2005 and 2010. He had knee surgery in 2008 and 2011 in connection with those claims.

Other employees allegedly warned Stepp that Swift would fire him because he was costing the company, which was self-insured, too much money.

On Aug. 15, 2013, Stepp fell and injured his leg and head. He finished his shift and reported his fall. Swift instructed Stepp to report to Human Resources the following day.

When he reported to HR, Stepp was shown a video of his fall and informed he was being fired for violating Swift’s zero-tolerance lockout/tagout policy, which was allegedly shown in the video.

In response, Stepp said another employee had fallen and grabbed the power cord to the machine Stepp was working on, making it impossible and unnecessary to lock it out for maintenance.

In August 2014, Stepp filed a lawsuit against Swift, alleging the company discriminated against him on the basis of age and disability and that Swift wrongfully discharged him for filing a workers’ comp claims. Swift tried to get all the claims thrown out. A U.S. district court recently ruled on the company’s request.

Mixed decision

First, Swift argued Stepp couldn’t sue for discrimination and wrongful termination because he also filed a workers’ comp claim and that would violate the exclusive remedy provision in Kentucky’s comp law. But the Kentucky Supreme Court previously ruled a workers’ comp claim doesn’t preempt a civil rights claim. So Stepp’s termination and discrimination claims aren’t barred by the state’s workers’ comp law.

On the disability discrimination claim, Stepp claimed he worked more slowly than others due to his knee problems and had some difficulty communicating due to his hearing loss. But the court said that was an insufficient argument and it granted Swift’s request to throw out the disability discrimination claim.

But age discrimination turns out to be a different story. Stepp, 57, claimed that a supervisor called him “old man.” The court said Stepp’s allegations that he was held to a higher standard of work while also mocked and verbally harassed by other employees and a supervisor is enough to deny the company’s request to throw out the age discrimination part of the lawsuit.

Stepp also claimed he was wrongfully terminated in retaliation for filing workers’ comp claims. The court noted that Stepp’s claims were presented as a series of events (filing three separate times) that allegedly changed Swift’s attitude toward Stepp. So the court rejected Swift’s request to throw out the wrongful termination part of Stepp’s lawsuit.

The company was successful on just one count: It got the disability discrimination claim thrown out. Now it may face a trial regarding the alleged age discrimination and wrongful termination.

(Alvin G. Steep v. JBS Swift dba Swift & Company Trade Group, U.S. District Court, W.D. KY, Louisville Div., No. 3:14-CV-00606-TBR, 1/6/16)

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Comments

  1. Sophie Cat says:

    On June 24, 2009, the USDA’s Food Safety and Inspection Service announced that JBS Swift Beef Company, a Greeley, Colorado, establishment, recalled about 41,280 lb (18,720 kg) of beef products that may be contaminated with E. coli O157:H7. By June 30, the recall included over 421,000 lb (191,000 kg).[6] The beef products were produced on April 21 and 22, 2009, and were shipped to distributors and retail establishments in Arizona, California, Colorado, Florida, Illinois, Michigan, Minnesota, Nebraska, Oregon, South Carolina, Tennessee, Texas, Utah, and Wisconsin.

    On November 4, 2010, the Federal Motor Carrier Safety Administration ordered JBS Carriers, a subsidiary of JBS, to install electronic on-board recorders on their trucks after a compliance review found “serious violation” of federal hours of service.

    On December 2, 2010, JBS announced that it would use Arrowsight, a remote video auditing company, to monitor proper sanitation to prevent cross contamination during processing. They also use Arrowsight to monitor their live cattle for proper animal welfare practices. These programs have shown great success.

    The Grain Inspection, Packers and Stockyards Administration assessed a $175,000 civil penalty against JBS/Swift on December 22, 2010, for violations of the Packers and Stockyards Act by failing to disclose when missing Fat-O-Meat’er data had prevented JBS from calculating the lean percentage of a particular pork carcass or carcasses in a seller’s lot, and substituting an undisclosed lean value for pork carcasses with missing data when calculating carcass-merit payment for hogs delivered to JBS’ Worthington, MN, Marshalltown, IA, and Louisville, KY, processing plants. The Packers and Stockyards Act is a fair trade practice and payment protection law that promotes fair and competitive marketing environments for the livestock, meat, and poultry industries.

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