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Wilfong v. Tharco Packaging, Inc.

United States District Court, C.D. California

March 4, 2015

GARLAND WILFONG, Plaintiff,
v.
THARCO PACKAGING, INC., THARCO CONTAINERS, INC., BOISE PAPER HOLDINGS, LLC, and DOES 1 through 10, inclusive, Defendants.

TIMOTHY S. ANDERSON, LITTLER MENDELSON, P.C., Cleveland, OH, MAGGY M. ATHANASIOUS, LITTLER MENDELSON, P.C., Los Angeles, CA, ROBERT R. BALL, Boise, ID, Attorneys for Defendants THARCO PACKAGING, INC., THARCO CONTAINERS, INC., AND BOISE PAPER HOLDINGS, L.L.C.

FINDINGS OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW

MANUEL L. REAL, District Judge.

In accordance with Rule 56 of the Federal Rules of Civil Procedure, the Motion for Summary Judgment, or in the Alternative, Summary Adjudication of Issues ("Motion") of Defendants Tharco Packaging, Inc., Tharco Containers, Inc., and Boise Paper Holdings, L.L.C. ("Tharco") came on regularly for hearing on February 2, 2015 at 10:00 a.m. in Courtroom 8, the Honorable Manuel L. Real, United States District Court Judge, presiding.

The Court, having considered the points and authorities submitted by the parties, the declarations and exhibits thereto, the relevant pleadings and papers on file with the Court and having heard the oral argument or counsel thereon, and having fully considered the law and facts disclosed by this record, hereby makes the following findings of uncontroverted facts and conclusions of law:

STATEMENT OF UNCONTROVERTED FACTS

1. Plaintiff began working for one of Tharco's predecessors on April 11, 1978. At the time of his termination, Plaintiff worked at Tharco's plant in Santa Fe Springs where the company manufactures cardboard boxes.

2. Plaintiff worked as a Flexo Operator for the bulk of his employment with Tharco. As a Flexo Operator, Plaintiff operated a Flexo machine that prints, folds, and glues cardboard sheets into boxes.

3. After Boise Inc. acquired Tharco on March 1, 2011, it placed great emphasis on safety in the workplace, especially with respect to its lockout/tagout ("LOTO") policy. Plaintiff received training on Tharco's LOTO policy at least twice per year provided by supervisors who explained the policy and provided Plaintiff with copies of it. As part of his training, Plaintiff learned that the company required him to lock out and tag out a machine anytime he came into contact with any part of it that could cause injury when the machine was energized.

4. Despite his training, Plaintiff received a final warning for a LOTO violation on November 20, 2012. Plaintiff removed an electrical panel and tried to repair a machine while it was energized despite being told by supervision to wait for maintenance to repair the dial. The final warning stated that "[a]ny further violations of the Lock Out Tag Out Policy within the next five years will result in termination of your employment."

5. On July 15, 2013, during a fifteen minute rest break, Plaintiff lay down on a bundle conveyor to relieve stress in his back and legs. Plaintiff did not ask for permission to lie on the machine, nor did he ask anyone if he could lie elsewhere in the facility.

6. Plaintiff lay on spinning metal rollers at the end of the conveyor, which used a powered belt to move cardboard sheets onto the rollers. The rollers are approximately 72 inches long, 30 inches wide, and 40 inches off of a concrete floor, albeit with a rubber mat on one side.

7. Plaintiff turned the conveyor off before lying on it, but he did not lock it out or tag it out, despite the fact that he could have done so in three different locations. Before lying down, Plaintiff placed a sheet of cardboard on top of the rollers, and he lay his head on a rolled up piece of cardboard paper.

8. Plaintiff claims he was not sleeping on the conveyor, but admits he closed his eyes and "was in la-la land."

9. As Plaintiff lay on the machine, three supervisors approached and tapped him multiple times to get his attention. When Plaintiff opened his eyes, his supervisor, Blas Torres, told him that he needed to get up and go to the lunchroom because lying on the machine was a safety violation.

10. Tharco subsequently suspended Plaintiff pending investigation.

11. During the investigation, HR Business Partner I, Eliset Lima, interviewed Plaintiff multiple times. Plaintiff said he was just resting with his eyes closed, but he later stated that he "snoozed off." Plaintiff also told Lima that he lay on machines in the plant "a hundred times, " but said that no supervisor ever saw him do so to his knowledge.

12. Tharco concluded that Plaintiff's conduct constituted a violation of its LOTO policy.

13. While the LOTO policy in effect at the time did not expressly cover lying on machines in the workplace, the intent of the policy is to require machines to be locked out any time an employee places themselves in a position where ...


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