Tyson Employees File Reply Brief in Fifth Circuit COVID-19 Lawsuit

On Friday, employees of Tyson Foods Inc.’s Amarillo facility filed a reply brief to the Fifth Circuit Court of Appeals asking the court to reverse the district court’s order granting Tyson’s motion to dismiss in Wazelle v. Tyson Foods Inc. 

The present litigation commenced when the employees filed a complaint in Texas state court against Tyson arguing that it is liable for more than 40 of its employees contracting COVID-19 and one employee’s death. At the state court, the plaintiffs argued that Tyson was liable under state-law negligence and wrongful-death claims, alleging that the unsafe work conditions at the plant caused their injuries and deaths.

Subsequently, Tyson removed the case to federal court invoking the federal-officer-removal statute, against the plaintiffs’ objections, and argued that their actions during the pandemic’s early days were under the direction of federal officers. Further, Tyson filed a motion to dismiss the case stating that the plaintiffs failed to state a claim, which the court granted. 

The plaintiffs timely filed an appeal to the Fifth Circuit and argued in their initial brief that the motion to dismiss should be vacated because district court erred by finding federal subject matter jurisdiction when none existed. 

Additionally, in the employees’ reply brief they argue that Tyson’s seeks to “rewrite” the district court’s opinion to suggest the district court granted federal subject matter jurisdiction on grounds other than Tyson’s critical infrastructure designation under the federal-officer-removal statute. Further, they argue that Tyson has deployed this tactic because appellate courts nationwide, including the Fifth Circuit, have rejected the argument that a defendant was acting under the direction of federal officers due to a critical infrastructure designation. 

The reply brief purports that although Tyson received a critical infrastructure designation in the early days of the pandemic that merely shows coordination and regulation and not the compulsion or control  required to invoke the federal-officer-removal statute. The employees further allege that Tyson cannot point to a single instance when its actions shifted after the government supposedly brought Tyson under its “control.”

The appellants additionally argue that the Fifth Circuit should reverse the district courts order denying the employee’s motion to remand and vacate the order granting Tyson’s motion to dismiss because OSHA and not Federal Meat Inspection Act (FMIA) has the authority to regulate worker-safety issues. Therefore, they argued that the District Court erred in finding that Tyson had pleaded a federal defense because FMIA does not apply to the issue at hand and OSHA preserves state-law tort claims like those brought by plaintiffs. 

Accordingly, the plaintiffs request that the court reverse the district court’s order denying Plaintiffs’ motion to remand, vacate the court’s later orders granting Defendants’ motions to dismiss for lack of jurisdiction, and order remand to state court. The employees are represented by Arnold & Itkin LLP, and Tyson is represented by Kirkland & Ellis LLP and Underwood Law Firm, P.C.