United States District Court, Southern District of Alabama, Northern Division
THOMAS E. PEREZ, SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABOR, Plaintiff,
LEAR CORPORATION EEDS AND INTERIORS and RENOSOL SEATING, LLC, Defendants.
CALLIE V. S. GRANADE UNITED STATES DISTRICT JUDGE
This matter is before the Court on Plaintiff’s Motion for a Temporary Restraining Order and to Show Cause Why a Preliminary Injunction Should Not Issue. (Doc. 1). Defendants filed a response in opposition (Doc. 14), and Plaintiff replied. (Doc. 18). Defendants also filed a Motion to Strike Portions of Plaintiff’s Affidavits (Doc. 13), and Plaintiff responded. (Doc. 17). This Court granted Plaintiff’s request for a temporary restraining order, gave the parties time for limited discovery, and held an evidentiary hearing on April 29, 2015. (Doc. 9). At the hearing, both sides offered evidence and sworn testimony in support of their respective positions. For the reasons stated below, the Court finds that Plaintiff is entitled to preliminary injunctive relief.
This case is about whether Defendant Lear Corporation retaliated against one of its employees, Kimberly King, for complaining about health concerns while working in its Renosol Seating plant located in Selma, Alabama (Lear Corporation and the Renosol Seating plant are collectively “Defendants”). King specifically raised concerns about exposure to a chemical called toluene diisocyanate (“TDI”). Although Defendants attached importance to certain issues at the hearing, this case is not about whether employees at the plant wish to unionize, nor is it about TDI levels at the plant exceeding permissible exposure limits.
The Renosol Seating plant employs over 100 people in Selma, Alabama. (Doc. 14, p. 3). The plant makes foam cushions that are used in car seats and head rests. For this process, the plant uses a chemical system that automatically offloads TDI from rail cars, along with other chemicals, and combines them into molds to make the foam cushions. (Doc. 14, p. 4). Hyundai Motor Manufacturing Alabama, LLC (“Hyundai”) is the plant’s primary customer, and its orders account for all of the plant’s revenues. (Doc. 14, p. 4).
Kimberly King began working at the Renosol Seating plant in 2004. (Doc. 14, Exh. 1, p. 4). King worked on the production line, and helped make foam cushions. On May 8, 2014, King, along with nine other employees, provided Connie Messer, human resources manager, with a signed letter regarding TDI leaks at the plant and health concerns. (Defs.’ Exh. 65). The letter stated in part:
The way management handled the TDI leak last week is one example of why we believe workers need a voice at Renosol.
TDI affects every worker in this plant. It will affect some of us for the rest of our lives. There are three things that we want Renosol to do immediately so that we can protect our health:
1. Provide free medical screenings to all workers in the plant to test our breathing and find out if we need additional medical care.
2. Tell us, in writing, exactly why the TDI alarms went off multiple times between April 29 and May 5; what steps Renosol took to protect our health; and what Renosol is doing to fix the problem.
3. Give us copies of Renosol’s OSHA 300 logs by the close of business tomorrow, as required by law.
(Defs.’ Exh. 65).
After receiving this letter, Defendants promptly hired an independent group to test the air in the plant for TDI. (Doc. 14, p. 2). OSHA also conducted its own air testing in the plant. (Doc. 14, p. 2). Over the next several months, OSHA and independent groups tested the air in the plant several times. (Doc. 14, pp. 2 – 3). Defendants and OSHA offered into evidence air monitoring results that show 2, 4-TDI and 2, 6-TDI levels are within legal limits at the Renosol plant. Other records and testimony offered into evidence, however, indicate that employees may become “sensitized” to TDI, even though it is within legal limits, resulting in adverse health effects. (Pl’s. Exh. 2). Defendants and OSHA shared information with employees at the plant regarding their TDI test results and TDI health effects. (Defs.’ Exh. 49).
In November 2014, OSHA issued multiple citations to Defendants for safety infractions at the plant. (Doc. 1, Exh. 2, pp. 16 – 26). The “serious” infractions include one citation for failing to require employees to wear protective equipment when handling TDI and a substance called methylene diphenyl dissocynate (“MDI”) (Doc. 1, Exh. 2, p. 21); one citation for failing to require employees to use appropriate hand protection when handling TDI and MDI (Doc. 1, Exh. 2, p. 22), and one citation for failing to train employees about the physical and health hazards of TDI and MDI. (Doc. 1, Exh. 2, p. 23). OSHA also cited Defendants for one “other-than-serious” infraction because they allegedly failed to record injury or illness on their OSHA 300 Log and 301 Incident Report. (Doc. 1, Exh. 2, p. 24).
In December 2014, OSHA and Defendants entered into an informal settlement agreement “to correct the violations as cited in the above citations or as amended below.” (Doc. 14, Exh. 3, p. 2). OSHA and Defendants agreed to withdraw one “serious” citation concerning protective equipment, and reduced the amount of the penalties for the other citations. (Doc. 14, Exh. 3, p. 3). Neither the citations nor the informal settlement agreement say that TDI exceeds permissible levels at the Renosol plant.
During the course of the OSHA investigation, Kimberly King spoke with media outlets regarding her health and her work at the plant. (Doc. 14, Exh. 1, pp. 5 – 8). King became the subject of an nbcnews.com news article on July 14, 2014, which described how TDI and other workplace chemicals correlate with certain respiratory concerns like asthma. (Doc. 14, Exh. 1, p. 6). In the article, a doctor who reviewed King’s case stated “she is in the top 25 percent in terms of levels” of isocyanate antibodies in her blood, and “the tests are consistent with isocyanate asthma.” The article also quoted King saying, “I knew it was the chemicals making me sick, but now nobody can say I’m making it up.” The same news article quoted employee Denise Barnett and included a photograph of employee Latasha Irby. The article further states 12 plant workers spoke to NBC for its report, but the names of the other employees are not included.
After the report appeared on nbcnews.com, another news agency, al.com, repeated a similar version of the story on July 15, 2014. King did an interview and provided quotes for the al.com story as well. (Doc. 14, Exh. 1, p. 6). At the same time, King never filed paperwork seeking workers compensation. (Doc. 14, Exh. 1, p. 7). Defendants, however, moved King from the production line to the warehouse in September 2014 to ensure she did not come into contact with TDI. (Doc. 14, p. 8; Exh. 1, p. 7). Defendants also moved two other employees, Denise Barnett and Latasha Irby, from the plant floor to the warehouse at the same time. King, Barnett, and Irby received the same hourly wage in their new positions at the warehouse. (Doc. 14, p. 8).
In late 2014 or early 2015, King and another employee participated in a video about the plant, TDI, and their health. The record does not explain who made the video. On January 21, 2015, Defendants suspended King and the other employee for three days without pay for participating in the video. (Doc. 1, Exh. 1, p. 11; Doc. 14, Exh. 1, p. 7). Defendants offered to reduce the penalty to a one-day suspension if King and the other employee who participated in the video agreed to respond to the following questions:
(a) In making statements to the public that the air was unsafe when I knew all testing of the air showed it to ...