throbber
IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF IOWA
`EASTERN DIVISION
`
`
`
`
`
`
`PLAINTIFF,
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`
`
`
`Case No. 6:20-cv-02079-LRR-KEM
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`
`
`
`
`
`
`
`
`
`
`
`OSCAR FERNANDEZ INDIVIDUALLY AND AS
`ADMINISTRATOR OF THE ESTATE OF ISIDRO
`FERNANDEZ,
`
`
`
` V.
`
`TYSON FOODS, INC., TYSON FRESH MEATS,
`INC., JOHN H. TYSON, NOEL W. WHITE, DEAN
`BANKS, STEPHEN R. STOUFFER, TOM
`BROWER, TOM HART, CODY BRUSTKERN,
`JOHN CASEY, AND BRET TAPKEN.
`
`
`
`
`
`DEFENDANTS.
`
`FIRST AMENDED COMPLAINT
`
`
`
`INTRODUCTION
`This case arises from Tyson Foods’ fraudulent misrepresentations, gross
`
`1.
`
`negligence, and incorrigible, willful and wanton disregard for worker safety at its pork
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`processing facility in Waterloo, Iowa (the “Waterloo Facility”). Despite an uncontrolled Covid-
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`19 outbreak, Tyson required its employees to work long hours in cramped conditions. Moreover,
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`despite the danger of COVID-19, Tyson failed to provide appropriate personal protective
`
`equipment and failed to implement sufficient social distancing or safety measures to protect
`
`workers from the outbreak. As a result, Isidro Fernandez and more than 1,000 other Tyson
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`employees were infected with COVID-19 at the Waterloo Facility.
`
`PARTIES
`Plaintiff Oscar Fernandez is the duly appointed Administrator of the Estate of his
`
`2.
`
`deceased father, Isidro Fernandez.
`
`
`
`Case 6:20-cv-02079-LRR-KEM Document 29 Filed 11/11/20 Page 1 of 30
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`

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`3.
`
`At all relevant times, Isidro Fernandez was a Tyson Foods employee working at
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`the Waterloo Facility. He died on April 26, 2020 from complications of COVID-19.
`
`4.
`
`Plaintiff’s injuries arose out of and in the course of Isidro Fernandez’s
`
`employment with Tyson Foods.
`
`Defendant Tyson Foods
`5.
`Defendant Tyson Foods, Inc. is the largest meat processor in the United States.
`
`6.
`
`Tyson Foods, Inc. is a Delaware Corporation, with its principal place of business
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`in Springdale, Arkansas.
`
`7.
`
`As a corporation, Tyson Foods, Inc. can act only through its agents, including its
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`employees, officers, and directors.
`
`8.
`
`Tyson Foods, Inc. is vicariously liable for its agents’ acts and omissions within
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`the course and scope of their agency.
`
`9.
`
`Defendant Tyson Fresh Meats, Inc. is a Delaware Corporation, with its principal
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`place of business in Springdale, Arkansas.
`
`10.
`
`As a corporation, Tyson Fresh Meats can act only through its agents, including its
`
`employees, officers, and directors.
`
`11.
`
`Tyson Fresh Meats is vicariously liable for its agents’ acts and omissions within
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`the course and scope of their agency.
`
`12.
`
`Tyson Fresh Meats is a wholly owned subsidiary of Tyson Foods, Inc.
`
`(collectively “Tyson Foods” or “Tyson”).
`
`Executive Defendants
`13.
`Defendant John H. Tyson is the Chairman of Tyson Foods, Inc.
`
`14.
`
`15.
`
`Defendant Noel W. White is the Chief Executive Officer of Tyson Foods, Inc.
`
`Defendant Dean Banks is the President of Tyson Foods, Inc.
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`
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`FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL — PAGE 2 OF 30
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`Defendant Stephen R. Stouffer is the President of Tyson Fresh Meats, Inc.
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`Defendant Tom Brower is Senior Vice President of Health and Safety for Tyson
`
`16.
`
`17.
`
`Foods, Inc.
`
`18.
`
`Hereinafter John H. Tyson, Noel W. White, Dean Banks, Stephen R. Stouffer, and
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`Tom Brower, will be collectively referred to as the “Executive Defendants.”
`
`Supervisory Defendants
`19.
`Defendant Tom Hart is the plant manager of the Tyson Waterloo Facility. He is
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`required to be familiar with all aspects of the Waterloo Facility and to identify potential safety
`
`hazards.
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`20.
`
`Defendant Bret Tapken is the Safety Lead of the Tyson Waterloo Facility. He is
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`required to be familiar with all aspects of the Waterloo Facility and to identify potential safety
`
`hazards.
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`21.
`
`Defendants Cody Brustkern and John Casey hold upper-level management
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`positions at the Tyson Waterloo Facility.
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`22.
`
`Hereinafter Tom Hart, Bret Tapken, Cody Brustkern, and John Casey will be
`
`collectively referred to as the “Supervisory Defendants.”
`
`23.
`
`The Supervisory Defendants are required to be familiar with all aspects of the
`
`Waterloo Facility and to identify potential safety hazards.
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`JURISDICTION AND VENUE
`
`24.
`
`The District Court for Black Hawk County, Iowa has jurisdiction over the
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`Defendants because the acts and omissions giving rise to the Plaintiff’s claims occurred in Black
`
`Hawk County, Iowa.1
`
`
`1 Plaintiff filed this action in the District Court for Black Hawk County, Iowa and Defendants improperly removed
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`
`
`FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL — PAGE 3 OF 30
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`25.
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`Plaintiff certifies, pursuant to IA Code § 619.18, that this action meets applicable
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`jurisdictional requirements for amount in controversy.
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`26.
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`Venue is proper under IA Code § 616.18 because Plaintiff sustained injuries and
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`damages in Black Hawk County.
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`FACTS COMMON TO ALL CAUSES OF ACTION
`
`The Pandemic
`27.
`COVID-19 is an infectious respiratory disease caused by a novel coronavirus
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`(hereinafter “COVID-19” or “the virus”).
`
`28.
`
`29.
`
`COVID-19 is highly contagious.
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`COVID-19 can result in serious, long-term health complications and has resulted
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`in more than 123,000 reported deaths in the United States to date.
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`30.
`
`Among these serious health complications, COVID-19 can cause inflammation in
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`the lungs, clogging the air sacs in the lungs, limiting the body’s oxygen supply and blood clots,
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`organ failure, liver damage, intestinal damage, heart inflammation, neurological malfunction,
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`and acute kidney disease.
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`31.
`
`The virus primarily spreads from person to person through respiratory droplets
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`produced when an infected person coughs or sneezes.
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`32.
`
`Spread is more likely when people are in close contact with one another (i.e.,
`
`within 6 feet).
`
`33.
`
`The virus can be spread by people who are asymptomatic, pre-symptomatic, or
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`mildly symptomatic.
`
`34.
`
`Distinctive factors that affect workers’ risk for exposure to COVID-19 in meat
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`processing facilities include distance between workers, duration of contact and type of contact
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`between workers.
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`
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`FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL — PAGE 4 OF 30
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`35.
`
`The best way to prevent infection and illness is to avoid being exposed to the
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`virus.
`
`36.
`
`The first known COVID-19 outbreak occurred in Wuhan, Hubei province,
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`People’s Republic of China (“China”).
`
`37.
`
`Tyson Foods has extensive operations and business interests in China, and one of
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`its subsidiaries operates a facility in Hubei province.
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`38.
`
`Tyson Foods has been focused on COVID-19 since January 2020 when it formed
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`a “company coronavirus task force.” Tyson formed this task force after observing the impact of
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`COVID-19 on its China operations.
`
`39.
`
`In January, nearly all of Tyson’s operations in China were affected by the
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`COVID-19 outbreak. By February, Tyson halted operations at some facilities in China and
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`reduced operations at others.
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`40.
`
`On January 11, 2020, Chinese state media reported its first known death from
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`COVID-19; Japan, South Korea, and Thailand reported confirmed cases by January 20, 2020;
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`and the United States reported its first case on January 21, 2020.
`
`41.
`
`On January 31, the United States Department of Health and Human Services
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`declared a national public health emergency.
`
`42.
`
`43.
`
`On March 8, three COVID-19 cases were reported in Iowa.
`
`On March 9, Iowa Governor Kim Reynolds issued a Proclamation of Disaster
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`Emergency in response to the COVID-19 outbreak.
`
`44.
`
`On March 11, the World Health Organization declared the COVID-19 outbreak a
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`global pandemic.
`
`
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`FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL — PAGE 5 OF 30
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`45.
`
`On March 13, President Donald Trump declared a National Emergency in
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`response to the COVID-19 outbreak.
`
`46.
`
`On or about March 13, Tyson Foods suspended all U.S. commercial business
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`travel, forbid all non-essential visitors from entering Tyson offices and facilities, and mandated
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`that all non-critical employees at its U.S. corporate office locations work remotely.
`
`47.
`
`On March 17, Governor Reynolds proclaimed a State of Public Health Disaster
`
`Emergency for the State of Iowa.
`
`48.
`
`49.
`
`On March 17, COVID-19 cases were confirmed in Black Hawk County.
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`On March 24, President Trump approved a major disaster declaration for the State
`
`of Iowa in response to the COVID-19 outbreak.
`
`COVID-19 Outbreak at the Waterloo Facility
`50.
`The Waterloo Facility is Tyson’s largest pork plant in the United States. The
`
`facility employs approximately 2,800 workers who process approximately 19,500 hogs per day.
`
`51.
`
`By late-March, the Executive Defendants and Supervisory Defendants were aware
`
`that COVID-19 was spreading through the Waterloo Facility.
`
`52.
`
`Tyson Foods has been focused on COVID-19 since January when it formed a
`
`“company coronavirus task force.” On information and belief, Tyson formed this task force after
`
`observing the impact of COVID-19 on its China operations.
`
`53.
`
`On information and belief, by late-March or early-April, Tyson Foods executives
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`and supervisors or managers at the Waterloo Facility were aware that COVID-19 was spreading
`
`through the plant.
`
`54.
`
`On April 3, 2020, the CDC recommended that all Americans wear face coverings
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`in public to prevent asymptomatic spread of COVID-19.
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`
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`FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL — PAGE 6 OF 30
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`55.
`
`Tyson Foods did not provide its workers at the Waterloo Facility with sufficient
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`face coverings, respirators, or other personal protective equipment.
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`56.
`
`Tyson Foods did not implement or enforce sufficient social distancing measures
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`at the Waterloo Facility.
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`57.
`
`The Executive Defendants and Supervisory Defendants had advance notice of the
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`danger COVID-19 posed to workers.
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`58.
`
`In March, COVID-19 outbreaks occurred at Tyson’s Columbus Junction plant and
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`Camilla plant (in Georgia). Four Tyson employees at the Camilla plant died from the virus and
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`two employees at the Columbus Junction facility died.
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`59. Waterloo employees were ordered to deliver parts to the Columbus Junction plant
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`during the Columbus Junction outbreak. These employees did not quarantine and were not
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`tested for COVID-19 when they returned to the Waterloo Facility.
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`60.
`
`On or about April 6, 2020, Tyson temporarily suspended operations at its
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`Columbus Junction plant after more than two dozen employees tested positive for COVID-19.
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`Consequently, a portion of the hogs that would have been processed at Columbus Junction were
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`redirected to the Waterloo Facility.
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`61.
`
`In March and April, Packers Sanitation Services Incorporated (PSSI) employees
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`moved back-and-forth between Columbus Junction and the Waterloo Facility. PSSI employees
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`arriving from Columbus Junction did not quarantine and were not tested for COVID-19 prior to
`
`entering the Waterloo Facility.
`
`62.
`
`By the time COVID-19 was detected at the Waterloo Facility, the Executive
`
`Defendants were fully informed of prior and ongoing outbreaks at Tyson facilities in China,
`
`
`
`FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL — PAGE 7 OF 30
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`Columbus Junction, and Camilla. At a minimum, the Supervisory Defendants were well
`
`informed of the Columbus Junction outbreak.
`
`63.
`
`On or about April 6, 2020, Tyson Foods installed temperature check stations to
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`scan persons entering the Waterloo Facility for fever. Tyson knew or should have known these
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`temperature checks did not function as designed and workers taking certain medications could
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`lower their temperatures prior to coming to work and pass through even if they were ill.
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`64.
`
`The Supervisory Defendants did not require truck drivers and subcontractors
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`(such as PSSI employees) to have their temperatures checked before entering the Facility.
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`65.
`
`In late-March or early-April, the Supervisory Defendants and most managers at
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`the Waterloo Facility started avoiding the plant floor because they were afraid of contracting the
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`virus. Consequently, as the virus spread through the plant, the Supervisory Defendants and other
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`managers increasingly delegated managerial authority and responsibilities to low-level
`
`supervisors with no management training or experience.
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`66.
`
`In March and April the Supervisory Defendants cancelled regularly scheduled
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`safety meetings.
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`67.
`
`Even after learning of positive COVID-19 tests within the Waterloo Facility, the
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`Supervisory Defendants directed supervisors to deny knowledge of COVID-19 cases at the plant.
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`68.
`
`Consequently, in March and April supervisors—at the direction of the
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`Supervisory Defendants—falsely denied the existence of “confirmed cases” or “positive tests”
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`within the Waterloo Facility.
`
`69.
`
`In April,
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`the Supervisory Defendants falsely
`
`told workers
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`they had a
`
`responsibility to keep working in order to ensure Americans don’t go hungry.
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`
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`FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL — PAGE 8 OF 30
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`70.
`
`In April, the Supervisory Defendants falsely told workers that they would be
`
`notified if they had been in close contact with a co-employee with a confirmed diagnosis of
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`COVID-19.On April 10, 2020, Black Hawk County Sherriff Tony Thompson and Black Hawk
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`County health officials visited the Waterloo Facility.
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`71.
`
`According to Sherriff Thompson, working conditions at the Waterloo Facility
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`“shook [him] to the core.” Workers were crowded elbow to elbow; most without face coverings.
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`72.
`
`Sheriff Thompson and other local officials lobbied Tyson to close the plant, but
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`the company refused.
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`73.
`
`Around this time, Defendant Tom Hart, the Plant Manager of the Waterloo
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`Facility, organized a cash buy-in, winner-take-all betting pool for supervisors and managers to
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`wager how many employees would test positive for COVID-19.
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`74.
`
`On the night of April 12, 2020, nearly two-dozen Tyson employees were admitted
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`to the emergency room at MercyOne Waterloo Medical Center.
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`75.
`
`On April 14, Black Hawk County officials asked Tyson to temporarily shut down
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`the Waterloo plant due to the outbreak of positive cases and the risks to Tyson employees and
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`the community. Again, the company refused. On April 16, 2020, Tyson company officials
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`publicly denied a COVID-19 outbreak at the Waterloo Facility.2
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`76.
`
`On or about April 17, 2020, twenty local elected officials sent a letter to Tyson
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`Foods imploring the company to take steps “to ensure the safety and well-being of Tyson’s
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`valuable employees and our community” and to “voluntarily cease operations on a temporary
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`basis at [the] Waterloo Facility so that appropriate cleaning and mitigation strategies can take
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`place.”
`
`2 See https://wcfcourier.com/business/local/tyson-workers-say-they-work-sick-clinic-seeing-
`tons-of-covid-19/article_965e046b-f4e8-5c57-99dd-2b9938734909.html
`
`
`
`
`FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL — PAGE 9 OF 30
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`77.
`
` On or about April 19, Iowa state lawmakers filed an OSHA complaint against
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`Tyson Foods after Waterloo employees complained of unsafe working conditions amid the
`
`coronavirus pandemic. The complaint alleged: at least one Tyson employee had informed
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`Waterloo health care providers that he or she had been transferred to the Waterloo Facility from
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`Tyson’s Columbus Junction plant, which had closed due to a COVID-19 outbreak; workers did
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`not have sufficient personal protective equipment; social distancing measures were not being
`
`implemented or enforced on the plant floor or in employee locker rooms; nurses at the Waterloo
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`Facility lacked sufficient medical supplies and were unable to accurately conduct temperature
`
`checks; and because of language barriers, non-English speaking employees mistakenly believed
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`they could return to work while sick.
`
`78.
`
`Tyson transferred workers to the Waterloo Facility from its Columbus Junction
`
`plant after it shut down due to a COVID-19 outbreak.
`
`79.
`
`Tyson failed to test or adequately quarantine workers from the Columbus Junction
`
`plant before allowing them to enter the Waterloo Facility.
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`80.
`
`The Supervisory Defendants permitted or encouraged sick and symptomatic
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`employees and asymptomatic employees known or suspected to have been exposed to COVID-
`
`19 to continue working at the Waterloo Facility. At least one worker at the facility vomited on
`
`the production line and management allowed him to continue working and return to work the
`
`next day.
`
`81.
`
`The Supervisory Defendants ordered sick employees who were tested at the
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`Waterloo Facility to return to work and continue working until they were notified that they had
`
`tested positive for COVID-19.
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`FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL — PAGE 10 OF 30
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`82.
`
`Defendant John Casey explicitly directed supervisors to ignore symptoms of
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`COVID-19. Mr. Casey told supervisors they had to show up to work, even if they were
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`exhibiting symptoms of COVID-19, and he directed supervisors to make their direct reports
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`come to work, even if those direct reports were showing symptoms of COVID-19.
`
`83.
`
`On one occasion, Mr. Casey intercepted a sick supervisor en-route to get tested
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`and ordered the supervisor to get back to work, adding, “we all have symptoms—you have a job
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`to do.”
`
`84.
`
`Tyson offered $500 “thank you bonuses” to employees who turned up for every
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`scheduled shift for three months. This policy further incentivized sick workers to continue
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`coming to work.
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`85.
`
`In March and April, supervisors and managers at the Waterloo Facility told
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`employees that their co-workers were sick with the flu (not COVID-19) and warned them not to
`
`discuss COVID-19 at work.
`
`86.
`
`The Supervisory Defendants regularly downplayed the dangers of COVID-19.
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`For instance, John Casey regularly referred to COVID-19 as the “glorified flu” and told workers
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`not to worry about it because “it’s not a big deal; everyone is going to get it.”
`
`87.
`
`High-level Tyson executives began lobbying the White House for COVID-19
`
`related liability protections as early as March and continued their lobbying efforts throughout
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`April. Tyson officials dined at the White House and participated in several calls with President
`
`Trump and Vice President Pence during March and April.
`
`88.
`
`Tyson executives lobbied, or directed others to lobby, members of the U.S. House
`
`of Representatives or the U.S. Senate for COVID-19 related liability protections.
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`
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`89.
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`Tyson executives lobbied, or directed others to lobby, Iowa Governor Reynolds
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`for COVID-19 related liability protections.
`
`90.
`
`Tyson executives successfully lobbied, or directed others to lobby, Governor
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`Reynolds to issue an executive order stating that only the state government, not local
`
`governments, had the authority to close businesses in northeast Iowa, including the Tyson
`
`Waterloo facility.
`
`91.
`
`On or about April 20, 2020, Governor Reynolds held a conference call with the
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`CEO of Tyson Foods, other high-ranking Tyson officials, and Tyson lobbyist Matt Eide. On
`
`information and belief, Tyson officials downplayed the seriousness of the COVID-19 outbreak at
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`the Waterloo Facility and exaggerated the efficacy of safety measures implemented at the
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`facility.
`
`92.
`
`According to Tyson Foods, the company began winding down operations at the
`
`Waterloo Facility on April 20 because a lack of available healthy labor, but the plant did not shut
`
`down until April 22, after the company had processed the remaining hog carcasses in its cooler.
`
`93.
`
`On April 22, 2020, Tyson Foods announced plans to indefinitely suspended
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`operations at the Waterloo Facility.
`
`94.
`
`On or about April 26, 2020, Tyson Foods placed a full-page advertisement in The
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`New York Times, Washington Post and Arkansas Democrat-Gazette entitled “A Delicate
`
`Balance: Feeding the Nation and Keeping Our Employees Healthy,” which asserted that “the
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`food supply chain is breaking.” The advertisement, signed by Defendant John H. Tyson, warned
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`that “millions of pounds of meat will disappear from the [U.S.] supply chain” due to plant
`
`closures and, “[a]s a result, there will be limited supply of our products available in grocery
`
`
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`stores” until closed facilities reopen. The advertisement stressed that Tyson had a “responsibility
`
`to feed our nation.”
`
`95.
`
` On numerous occasions in April, Tyson executives (including Defendants John
`
`H. Tyson, Noel W. White, Dean Banks, and Stephen R. Stouffer) and company spokespersons
`
`(including Liz Croston and Gary Mickelson) publicly argued that it was necessary to continue
`
`operating meat processing facilities during the pandemic (despite uncontrolled COVID-19
`
`outbreaks at many of those facilities) in order to feed Americans.
`
`96.
`
`Tyson exports to China increased by 600% in the first quarter of 2020. In fact,
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`Tyson exported 1,289 tons of pork to China in April 2020, its largest single month total in more
`
`than three years.
`
`97.
`
`On April 28, President Trump signed an executive order classifying meat
`
`processing plants as essential infrastructure that must remain open. The stated purpose for the
`
`order was to avoid risk to the nation’s food supply.
`
`98.
`
`On May 1, 2020, the human resources director of the Tyson Waterloo Facility
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`told local officials that the plant was weeks away from reopening; however, the plant reopened
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`six days later.
`
`99.
`
`The Black Hawk County Health Department has recorded more than 1,000
`
`infections among Tyson employees—more than one third of the Tyson Waterloo workforce—
`
`and at least 5 workers have died.
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`100. Dr. Nafissa Cisse Egbuonye, director of the Black Hawk County Health
`
`Department, attributed 90% of the county’s COVID-19 cases to the Tyson Waterloo Facility.
`
`101. A grossly disproportionate number of Tyson Waterloo workers have been infected
`
`with COVID-19 compared to the general populations of Black Hawk County and Iowa.
`
`
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`102. At the time of filing this lawsuit, more than 8,500 Tyson employees have
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`contracted COVID-19, more than double the number for any other company, and at least 20 have
`
`died nationwide. A grossly disproportionate number of Tyson workers have been infected with
`
`COVID-19 compared to the general population of the United States.
`
`103. At all relevant times, the Supervisory Defendants and Executive Defendants
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`individually and collectively had responsibility for Ms. Buljic, Mr. Garcia and Mr. Ayala’s
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`safety and work conditions.
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`104. Plaintiff Oscar Fernandez, as Administrator of the Estate of Isadro Fernandez,
`
`seeks recovery from Defendants for all damages cognizable under Iowa law including but not
`
`limited to:
`
`a.
`
`b.
`
`c.
`
`d.
`
`e.
`
`f.
`
`g.
`
`Isidro Fernandez’s pre-death physical and mental pain and suffering;
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`Isidro Fernandez’s pre-death loss of function of the mind and body;
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`Isidro Fernandez’s pre-death fright and emotional distress;
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`Isidro Fernandez’s pre-death medical expenses;
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`Pecuniary loss of accumulation to the Estate of Isidro Fernandez;
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`Interest on premature burial expenses; and
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`Past and future loss of the love, services, society, companionship, support,
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`affection, and consortium suffered by Celia Fernandez as a result of the
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`death of her husband.
`
`h.
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`Past and future loss of the love, services, society, companionship, support,
`
`affection, and consortium suffered by Oscar Fernandez, Alejandro
`
`Fernandez, Angelina Fernandez, Sergio Fernandez and Maria Fernande as
`
`a result of the death of their father.
`
`
`
`FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL — PAGE 14 OF 30
`Case 6:20-cv-02079-LRR-KEM Document 29 Filed 11/11/20 Page 14 of 30
`
`

`

`FIRST CAUSE OF ACTION
`CLAIMS AGAINST TYSON FOODS
` (FRAUDULENT MISREPRESENTATION, VICARIOUS LIABILITY AND PUNITIVE DAMAGES)
`105. Plaintiff incorporates by reference all allegations contained in this Complaint.
`
`106.
`
`In March and April of 2020, Defendant Tyson Foods, through the Supervisory
`
`Defendants, made numerous false representations to Isidro Fernandez, and other workers at the
`
`Waterloo Facility concerning: (1) the presence and spread of COVID-19 at the facility; (2) the
`
`importance of protecting and keeping workers safe; (3) the efficacy of safety measures
`
`implemented at the facility; and (4) the need to keep the facility open to avoid U.S. meat
`
`shortages.
`
`107.
`
`In March and April, Tyson Foods, through the Supervisory Defendants, falsely
`
`represented to Mr. Fernandez and others workers at the Waterloo Facility that:
`
`a.
`
`b.
`
`c.
`
`d.
`
`e.
`
`COVID-19 had not been detected at the facility;
`
`COVID-19 was not spreading through the facility;
`
`Worker absenteeism was unrelated to COVID-19;
`
`Sick workers were not permitted to enter the facility;
`
`Sick or symptomatic workers would be sent home immediately and would
`
`not be permitted to return until cleared by health officials;
`
`f.
`
`Workers would be notified if they had been in close contact with an
`
`infected co-worker;
`
`g.
`
`h.
`
`Tyson’s “top priority” is the health and safety of its “team members;”
`
`Safety measures implemented at the facility would prevent or mitigate the
`
`spread of COVID-19 and protect workers from infection;
`
`i.
`
`The Waterloo Facility needed to stay open in order to avoid U.S. meat
`
`shortages; and
`
`
`
`FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL — PAGE 15 OF 30
`Case 6:20-cv-02079-LRR-KEM Document 29 Filed 11/11/20 Page 15 of 30
`
`

`

`j.
`
`The Waterloo Facility was a safe work environment.
`
`108. Tyson Foods knew these representations were false, and knew or should have
`
`known that it was wrong to make such false representations.
`
`109. These representations were material in that Mr. Fernandez would not have
`
`continued coming to work had he been informed of the extent of the COVID-19 outbreak at the
`
`Waterloo Facility.
`
`110. Tyson intended by these false representations to deceive workers at the Waterloo
`
`Facility, including Mr. Ferndandez, and to induce them to continue working despite the
`
`uncontrolled COVID-19 outbreak at the plant and the health risks associated with working at the
`
`Waterloo Facility.
`
`111. Mr. Fernandez and others accepted and relied on Tyson’s representations as true,
`
`and were justified in doing so.
`
`112. Tyson Foods thereby induced Mr. Fernandez and others to continue working at
`
`the Waterloo Facility.
`
`113. Tyson’s false representations directly and proximately caused Plaintiff’s injuries
`
`and were a substantial factor in causing Plaintiff’s injuries.
`
`114. Tyson Foods is vicariously liable for the culpable acts and omissions committed
`
`by all of its agents acting within the course and scope of their agency, including but not limited
`
`to the executives and supervisors named in this Complaint.
`
`115. Tyson Foods’ acts and omissions were grossly negligent, reckless, intentional,
`
`and constitute willful and wanton misconduct.
`
`116. Tyson Foods’ fraudulent misrepresentations and prolonged refusal to temporarily
`
`close down the Waterloo Facility despite knowing that many workers at the plant had tested
`
`
`
`FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL — PAGE 16 OF 30
`Case 6:20-cv-02079-LRR-KEM Document 29 Filed 11/11/20 Page 16 of 30
`
`

`

`positive for COVID-19 and despite knowing that COVID-19 was rapidly spreading through the
`
`workforce at the Waterloo Facility are evidence of Tyson’s incorrigible, willful and wanton
`
`disregard for workplace safety and culpable state of mind.
`
`117. Tyson knowingly and intentionally prioritized profits over the health, safety and
`
`well-being of its Waterloo employees.
`
`118. Tyson’s lobbying efforts for liability protections while simultaneously failing to
`
`sufficiently protect its workers from COVID-19 is further evidence of the company’s
`
`incorrigible, willful and wanton disregard for workplace safety and culpable state of mind.
`
`119. An award of punitive damages is necessary to punish Tyson Foods for its willful
`
`and wanton disregard for workplace safety and to deter it and other similarly situated companies
`
`from jeopardizing workers’ lives in the future.
`
`SECOND CAUSE OF ACTION
`CLAIMS AGAINST TYSON EXECUTIVES
` (GROSS NEGLIGENCE AND PUNITIVE DAMAGES)
`120. Plaintiff incorporates by reference all allegations contained in this Complaint.
`
`121. At all relevant times, Tyson Foods employed the Executive Defendants in
`
`managerial capacities.
`
`122. At all relevant times, the Executive Defendants were acting within the course and
`
`scope of their employment.
`
`123. The Executive Defendants had a duty to exercise reasonable care to prevent
`
`injuries to employees such as Isidro Fernandez.
`
`124. The Executive Defendants were regularly briefed on positive COVID-19 cases at
`
`Tyson facilities, and they learned that the virus had been detected at the Waterloo Facility within
`
`days of the first confirmed case.
`
`125. The Executive Defendants breached their duty through acts and omissions
`
`
`
`FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL — PAGE 17 OF 30
`Case 6:20-cv-02079-LRR-KEM Document 29 Filed 11/11/20 Page 17 of 30
`
`

`

`including but not limited to:
`
`a.
`
`Failing to develop or implement worksite assessments to identify COVID
`
`-19 risks and prevention strategies at the Waterloo plant;
`
`b.
`
`Failing to develop or implement testing and workplace contact tracing of
`
`COVID-19 positive workers at the Waterloo plant;
`
`c.
`
`Failing to develop and implement a comprehensive screening and
`
`monitoring strategy aimed at preventing the introduction of COVID-19
`
`into the worksite, including a program to effectively screen workers before
`
`entry into the workplace; return to work criteria for workers infected with
`
`or exposed to COVID-19; and criteria for exclusion of sick or
`
`symptomatic workers;
`
`d.
`
`Allowing or encouraging sick or symptomatic workers to enter or remain
`
`in the workplace;
`
`e.
`
`f.
`
`Failing to promptly isolate and send home sick or symptomatic workers;
`
`Failing to configure communal work environments so that workers are
`
`spaced at least six feet apart;
`
`g.
`
`Failing to modify the alignment of workstations, including those along
`
`processing lines, so that workers do not face one another;
`
`h.
`
`Failing to install physical barriers, such as strip curtains, plexiglass or
`
`similar materials, or other impermeable dividers or partitions, to separate
`
`or shield workers from each other;
`
`i.
`
`Failing to develop, implement or enforce appropriate cleaning, sanitation,
`
`and disinfection practices to reduce exposure or shield workers from
`
`
`
`FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL — PAGE 18 OF 30
`Case 6:20-cv-02079-LRR-KEM Document 29 Filed 11/11/20 Page 18 of 30
`
`

`

`COVID-19 at the Waterloo plant;
`
`j.
`
`Failing to provide all employees with appropriate personal protective
`
`k.
`
`l.
`
`m.
`
`n.
`
`equipment, including face coverings or respirators;
`
`Failing to require employees to wear face coverings;
`
`Failing to provide sufficient hand washing or hand sanitizing stations
`
`throughout the Waterloo Facility;
`
`Failing to slow production in order to operate with a reduced work force;
`
`Failing to develop, implement or enforce engineering or administrative
`
`controls to promote social distancing;
`
`o.
`
`Failing to modify, develop, implement, p

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