A San Diego woman sued a private operator of federal detention and correctional facilities in the Southern District of California for allegedly not providing gloves or masks to the entire staff and lying about it.
Margarita Smith complains that Corecivic prohibited her and its other employees from wearing masks in the housing units and other areas of the Otay Mesa Detention Center, which houses 1,200 to 1,300 detainees and inmates for Immigration and Customs Enforcement (ICE) and U.S. Marshals Service.
“Defendant informed its staff that if they provided masks to the Detention Officers, then it would scare the inmates/detainees and they would have to provide them to them as well, which would cause them to go over budget,” wrote Smith’s attorney Josh Gruenberg in the opening brief. “Defendant repeatedly put profits over people.”
Gruenberg
Smith v. Corecivic is among a crashing wave of lawsuits filed by employees against employers relating to the COVID-19 pandemic. In California alone, the Department of Health reported 136,191 coronavirus cases and 4,776 fatalities as of June 10.
“No employee is required to submit themselves to a dangerous work environment to keep their job,” said Mike Arias, an attorney and immediate past-president of the Consumer Attorneys of California.
Smith sued for wrongful constructive termination in violation of public policy, negligent supervision and intentional infliction of emotional distress and seeks damages that include compensatory, back pay, front pay, mental and emotional distress damages.
“For an employee faced with a hostile work environment or a dangerous work environment, the theory of constructively discharged in violation of public policy is not a bad argument because the company has the ability to correct any unsafe or unkempt work conditions and their failure to do so causing someone to quit their job is an appropriate theory,” Arias told the Southern California Record.
Title 29 of the Occupational Safety and Health Standards (OSHA) requires employers to conduct a hazard assessment to determine if hazards are present or are likely to be present in the workplace that necessitate the use of Personal Protective Equipment (PPE) and if such hazards are likely to be present, the employer is required to have each affected employee use PPE to protect them from such hazards.
“Even detention officers who were responsible for patting down detainees when necessary were also not provided with gloves or masks,” stated Smith’s attorney in her pleading. “Defendant did not provide sanitizer to staff. There were sanitizer dispensers in only certain areas of the facility, but throughout Plaintiff’s career with Defendant, every time she attempted to use a sanitizer dispenser, it was empty.”
Smith had worked at the facility since 2009 but resigned on March 31, 2020 citing an unsafe work environment. By April 27, some 142 inmates/detainees and numerous employees and their families had contracted COVID-19, according to the complaint.
“You would hope and expect that a commercial entity that has been hired to run and operate an immigration detention center for the government would comply with all the necessary federal and state guidelines for health and protection of not only the detainees but for the employees,” said Arias in an interview.
The lawsuit further alleges that the inmates/detainees used the same rags to clean throughout the day, including in the medical unit and the latrines.
“Even in the midst of the COVID-19 pandemic, Defendant did not provide paper towels instead of dirty rags,” stated Gruenberg. “Defendant also did not provide any cleaning sanitizer or disinfectant wipes to staff, so staff could keep their things and work areas clean.”