Lawsuit came too late in job safety case

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Despite courts’ typical deference to state regulators, a Roanoke circuit judge has concluded the Virginia Department of Labor and Industry waited too long to maintain an enforcement action over a workplace fatality.

The judge’s opinion adds to a growing body of cases analyzing when job safety regulators have prejudiced employers with years-long delays in bringing suit over alleged safety violations.

In the new case, the state agency waited more than three years to sue after the end of settlement talks with United Parcel Service over a citation for an alleged safety violation in a 2015 incident.

Judge David B. Carson dismissed the enforcement action July 13, concluding UPS suffered actual prejudice from both witnesses’ fading memories and the agency’s refusal to disclose witness information.

Carson’s five-page opinion is Davenport v. United Parcel Service Inc. (VLW 020-8-068).

Delay of 39 months

A UPS freight handler died in the Oct. 5, 2015, incident, according to information posted by the U.S. Department of Labor. An accident investigation summary said the employee had been unloading a trailer and was found lying face down.

“The employee died from complications of hypertension and pneumonia,” the OSHA report said. On April 5, 2016, the Virginia Commissioner of Labor and Industry proposed a $3,075 penalty for a “serious” violation related to medical services and first aid, the report showed. On April 14 of that year, UPS contested the alleged violation.

Companies often will fight OSHA citations even with relatively small monetary penalties because safety violations can hamper their ability to win contracts, explained Roanoke attorney K. Brett Marston. Marston has handled many OSHA citations over the years, but was not involved in the case before Carson.

The agency and UPS ended discussions over the citation in June 2016, according to Carson’s timeline of events. The complaint was not filed in Roanoke Circuit Court until Sept. 23, 2019.

Represented by Courtney M. Malveaux of Richmond, himself a former commissioner of the Department of Labor and Industry, UPS filed a special plea and motion to dismiss saying the agency’s foot dragging prejudiced UPS to such an extent that dismissal was the only proper remedy. The department, represented by Senior Staff Attorney Alfred B. Albiston, argued UPS could show neither inherent nor actual prejudice from the delay.

No statutory deadline

The case highlights the process that often leads to long delays in resolving alleged employee safety violations in Virginia. After an inspection, the state agency may issue a citation to an employer. If informal discussions with regional officials don’t resolve the matter, the employer will contest the citation, Marston said. Then, the file gets shipped to Richmond where it lands on a desk at the state OSHA office.

“There it often just sits for days, weeks, months, years,” Marston said. “They tell you, ‘We’re reviewing it. We’ll get back to you,’” he added.

Most such cases eventually get resolved with negotiations between the employer’s lawyer and lawyers at the state agency in Richmond, Marston said. Only about 10% result in a complaint being filed in circuit court. Fewer still go to trial.

There is no deadline for filing a complaint, under the statute governing the state procedure, Va. Code § 40.1-49.4(E). The Court of Appeals of Virginia ruled in 2000 that a 15-month delay was not inherently unreasonable, but the court said the limit would be measured by prejudice to the employer.

Two types of prejudice

In his opinion in the UPS case, Carson summarized two decades of case law on VOSH complaint delays. UPS could win by showing either inherent prejudice or actual prejudice. Inherent prejudice required a balancing test: the inherent prejudice of the delay weighed against the reasons for the delay.

The commissioner said that during the delay he was attempting to jointly address additional contested UPS cases or was enforcing an identical citation issued to another employer. The commissioner said he hoped to use that identical citation to establish a convincing precedent for this UPS case.

Carson was not persuaded by the inherent prejudice argument. UPS was aware of the allegations and could have conducted its own investigation but did not do so. UPS also could not show that publication of details of the incident was inherently prejudicial, Carson said.

Actual prejudice shown

But Carson decided UPS had presented credible evidence it suffered actual prejudice due to the 39-month delay.

One factor was the effect of the delay on witness recollections. UPS claimed multiple employees on the scene had significantly different memories of who discovered the decedent, which supervisors arrived first, who called first responders and when the first responders arrived.

UPS also was unable to fully investigate its case due to the commissioner’s actions during the long delay, Carson said.

“The Commissioner has refused to identify certain witnesses and the contents of their statements, despite UPS’ assertion that this information is critical to its ability to build its case,” Carson wrote.

The commissioner’s defense of “informer’s privilege” was overcome because the delay inhibited UPS’s ability to investigate and UPS showed a significant need for the commissioner’s undisclosed information, the judge said.

“Though UPS may have been aware of the violation and issues surrounding the contested citation, the witnesses’ memory loss and the Commissioner’s refusal to disclose the identities and statements of certain other witnesses inhibit UPS’ ability to build a case in its defense,” Carson wrote. “These factors constitute credible evidence of actual prejudice.”

Combination of factors

Winning a case against the state OSHA agency based on delay is “very hard,” according to Roanoke attorney Stan Barnhill, who was not involved in the UPS case.

“What makes the case interesting is that apparently the employee witnesses who testified for VOSH had divergent memories, which led defense counsel to argue that had the witnesses been disclosed to it [earlier] it could have taken action to preserve evidence while the facts were still clear in employee memory,” Barnhill said.

The agency’s refusal to disclose witnesses plus the passage of time combined to create actual prejudice in the employer’s ability to develop a defense, Barnhill said.

Barnhill praised both the employer’s counsel for combining allegations of delay, concealment and memory failure and Carson’s “threading the needle in the case law” to provide protection for the employer “in such unique circumstances.”

Marston said the case spotlights the agency’s practice of hiding witness details from the employer it is accusing.

“Where does that line get drawn?” he asked. “A lot of times, we’ve had trouble getting them to identify the names of witnesses they plan to invoke,” Marston said. Even discovery documents have been produced with redactions, he said.

Malveaux said he could not comment. Albiston was unavailable for comment.