Staz-On Roofing, Inc.

Plain-English summary

OSHA withdrew a fall-hazard training item against Staz-On Roofing at the start of the merits hearing, and the employer sought attorney fees and expenses under the Equal Access to Justice Act. The judge found Staz-On eligible and a prevailing party on the withdrawn item. He held that the Secretary was initially justified in citing based on an employee's statement that he had not been trained, but lost substantial justification after discovery records showed that the employee had attended fall-safety sessions. The judge reduced the claimed attorney hours by half because the issue was not complex and denied expenses that lacked supporting documentation. He awarded Staz-On $3,650 in attorney fees.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.21(b)(2) and 1926.501(b)(13)
• Outcome: Staz-On received a $3,650 EAJA attorney-fee award for defending the withdrawn training item; its claimed expenses were denied.
• Key point: The Secretary may be substantially justified at the citation stage but become liable for later defense costs after discovery removes the factual basis for continuing the allegation.

Full text (OSHRC public release)

                                          United States of America
                    OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                                   1244 North Speer Boulevard, Room 250
                                        Denver, Colorado 80204-3582

Phone: (303) 844-3409 Fax: (303) 844-3759

SECRETARY OF LABOR,
Complainant,

                         v.

                                                        OSHRC DOCKET NO. 02-2229

STAZ-ON ROOFING, INC., and its successors,
Respondent.

                                    DECISION AND ORDER
     Respondent, Staz-On Roofing, Inc., seeks attorney fees and expenses in accordance with the Equal

Access to Justice Act, 54 U.S.C. ' 504 (AEAJA@) and implementing regulations set forth at 29 C.F.R.
'2204.1, et seq., for costs incurred in its defense against the Occupational Safety and Health
Administration (OSHA).
BACKGROUND
During the period November 12-14, 2002, a compliance officer employed by OSHA initiated an
investigation of Respondent=s worksite located at Haltom City, Texas. Respondent=s employees were
engaged in laying roofing felt on the roof of a three-story building. The compliance officer observed
certain employees on the roof who were not wearing personal fall protection equipment. After
interviewing employees, the compliance officer recommended to her supervisor that a citation listing two
alleged violations be issued to Respondent. The first item in the citation alleged a failure to train
employees in the recognition and avoidance of unsafe conditions (29 C.F.R. 1926.21(1)(a) and the second
item alleged a failure to protect employees by way of personal fall arrest systems, safety nets or guardrails
(29 C.F.R. 1926.501(b)(13).
At the commencement of the hearing on April 9, 2003, the Secretary=s counsel withdrew item 1 of
the citation (training) and the proposed penalty for that item. The hearing was conducted for the remaining
issue and a decision affirming item 2 of the citation became a final order of the Commission on
September 5, 2003. Respondent filed its petition for attorney fees in the amount of $8,200.00 and
expenses in the amount of $213.42 pursuant to the Equal Access to Justice Act for costs incurred in
defending against withdrawn item 1. Respondent=s application has been filed in a timely manner (29
C.F.R. '2200.302(a)).
DISCUSSION
The Equal Access to Justice Act (EAJA) applies to proceedings before the Commission through
section 10(c) of the Occupational Safety and Health Act of 1970 (Act), 29 U.S.C. ' 651, et seq. The
purpose of the EAJA is to ensure that an eligible applicant is not deterred from seeking review of, or
defending against, unjustified actions by the Secretary. K.D.K. Upset Forging, Inc., 12 BNA OSHC 1857,
1859, 1986 CCH OSHD & 27,612 (No. 81-1932, 1986). An award is made to an eligible applicant who is
the prevailing party if the Secretary=s action is found to be without substantial justification and there are no
special circumstances which make the award unjust. Asbestos Abatement Consultation & Engineering, 15
BNA OSHC 1252, 1991 CCH OSHD & 28,628 (No. 87-1522, 1991). While the applicant has the burden
of proving eligibility, the Secretary has the burden of demonstrating that her action was substantially
justified, 29 C.F.R. ' 2204.106(a). However, EAJA does not allow routine award of attorney=s fees and
expenses to a prevailing party. There is no presumption that the Secretary=s position was not substantially
justified, simply because she lost the case. Moreover, the Act does not require that the Secretary=s decision
to litigate be based on a substantial probability of prevailing. S & H Riggers & Erectors, Inc. v. OSHRC,
672 F.2d 426, 430 (5th Cir. 1982).
ELIGIBILITY
To be eligible for costs pursuant to EAJA, an applicant must establish that on the date that it filed its
notice of contest, it was a Apartnership corporation, association, or public or private organization that has a
net worth of not more than seven million dollars and employs not more than 500 employees.@ 29 C.F.R.
' 2204.105. Respondent=s petition provides documentation establishing its net worth as $368,935.35 as
well as the assertion that Athe company employed 10 employees@ at the time that the notice of contest was
filed. Complainant does not dispute Respondent=s eligibility under the Act. Accordingly, Respondent=s
petition establishes its eligibility at the time of its notice of contest.
PREVAILING PARTY
To be considered as a Aprevailing party@ within the meaning of the Act, the record must establish
that Respondent succeeded on any significant issue involved in the case and achieved some benefit which is
sought in pursuing litigation. K.O.K. Upset Forging, Inc., 12 BNA OSHR 1856, 1857 (1986). It is not
necessary for Respondent to have prevailed on all issues but only as to a Adiscrete substantive portion of the
proceeding.@ H.P. Fowler Contracting Corp., 11 BNA OSHC 1841, 1845 (1984).

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Respondent asserts that it is the prevailing party with respect to item 1 of the citation (training)
because the Secretary withdrew that item from the matters to be tried at the hearing. Thus, according to
Respondent, it has prevailed on a Adiscrete substantive portion of the proceeding@ by achieving that which it
sought in pursuing litigation; that is, the dismissal of item 1 of the citation. Complainant does not dispute
that Respondent constitutes a prevailing party as to that item. Accordingly, Respondent is a prevailing
party within the meaning of the EAJ Act with respect to item 1 of the citation.
SUBSTANTIAL JUSTIFICATION
As an eligible prevailing party, Respondent may be entitled to an award of attorney fees and
expenses unless the Secretary establishes that her position was substantially justified in pending litigation
or the record shows special circumstances which makes an award unjust. AThe test of whether the
Secretary=s action is substantially justified is essentially one of reasonableness in law and fact.@ Mautz &
Orem, Inc., 16 BNA OSHC 1006, 1991-1993 CCH OSHD & 29,986, p. 41,066 (No. 89-1366, 1993). The
Secretary must show that there is a reasonable basis for the facts alleged; for the theory she propounds, and
that the facts alleged will reasonably support the legal theory advanced. See Gaston v. Bowen, 854 F.2d
379, 380 (10th Cir. 1988). The fact that the Secretary may have lost as to these items does not mean that her
position in pursuing them in litigation was not substantially justified. S & H Riggers & Erectors, Inc. v.
OSHRC, supra, at 430. In cases before the Commission, facts need to be proved by only a preponderance
of the evidence, not by a clear and convincing evidence or beyond a reasonable doubt. The EAJA should
not be read to deter the Secretary from pursuing in good faith cases which are reasonable in advancing the
objective of workplace safety and health, if such cases are reasonably supportable in fact and law. The
facts forming the basis of the Secretary=s position need not be uncontradicted. If reasonable persons fairly
disagree whether the evidence establishes a fact in issue, the Secretary=s evidence can be said to be
substantial. The phrase Asubstantially justified@ means Ajustified in substance or in the main . . ., that is,
justified to a degree that could satisfy a reasonable person. This interpretation of the phrase accords with
related uses of the term >substantial= and is equivalent to the >reasonable basis both in law and fact=
formulation adopted by the vast majority of courts of appeals.@ Pierce v. Underwood, 108 S. Ct. 2541,
2543 (1988).
It has been established that the Secretary withdrew the training citation from litigation at the
commencement of the hearing (Tr. 6). Complainant asserts, however, that she had substantial justification
for pursuing that allegation up to the time that the citation was withdrawn.
According to Complainant, compliance officer Ruth Rodriguez interviewed five employees at the
job site on November 14, 2004. When asked by the compliance officer whether they had received any

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training in fall protection, four of the five employees stated that they had been trained. The fifth employee,
Mr. Morales, told the compliance officer that he had received no training from the Respondent. Based upon
this statement, the compliance officer recommended that the so-called failure to train citation be issued to
Respondent.
During her deposition taken on March 25, 2003, the compliance officer acknowledged that there
would be Ano basis@ for the citation if Mr. Morales had received Asome training@ to recognize fall hazards.
(Deposition of CO Rodriguez, p. 16, attached to Complainant=s memorandum of law.) Moreover, the
Secretary, at page 3 of her memorandum, states A[t]here was no doubt that the Secretary was only alleging
that Mr. Morales had not been trained.@ Although the OSHA form 1-B provided to Respondent on
January 23, 2003 (Exhibit B to Complainant=s memorandum) states that multiple employees were exposed
to a fall hazard, it only lists Mr. Morales specifically as an exposed employee.
On March 7, 2003, Respondent mailed responses to Complainant=s interrogatories to the Solicitor=s
office. The Secretary had served the following interrogatory dealing specifically with training:
INTERROGATORY NO. 8. For the period of September 1, 2001
through November 15, 2002, please identify any and all safety meetings
or training programs held at the job site or held off-site for Respondent=s
employees relating to fall protection. In identifying each training program
or safety meeting, please identify the date, time, substance or topic
covered, and individuals present at the meeting.

    In response, Respondent stated:

           Respondent=s employees received informal on-the-job training on fall
           hazards and fall protection on a continuous basis. Respondent=s employ-
           ees also received formal training on fall hazards and fall protection when
           Staz-On sent them to OSHA=s 10 hour course on Construction Safety &
           Health. The two employees allegedly without fall protection in this case,
           James Copely and Omar Torres, attended the OSHA course on June 20-21
           and July 25-26, 2002, respectively. Employees also attended formal
           weekly safety meetings and the topic of falls and fall protection was
           discussed on a rotating basis during those weekly meetings. Copies of
           safety minutes of these weekly meetings that Respondent has been able to
           locate at this point are attached. These minutes reflect that in 2002 formal
           training on fall hazards and fall protection was given on 1/10/02, 7/8/02,
           7/29/02, 9/10/02, and 11/11/02, the last training being just one day before
           the inspection in this case.

    Complainant acknowledges that the safety meeting records supplied by Respondent indicate that

Mr. Morales attended four safety meetings wherein Afall causes,@ Afall protection@ and AOSHA Top Ten@
were discussed. However, Complainant asserts that the scarcity of information provided was insufficient to

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determine whether Mr. Morales had received training which complied with the cited standard. Thus,
Complainant argues that as of March 7, 2004, there was substantial justification for pursuing the alleged
training violation as it applied to Mr. Morales particularly since Respondent had failed to establish that
Morales had attended the AOSHA Ten Hour Course.@ (Complainant=s brief, p. 5).
On March 25, 2003, Complainant took the deposition of Daniel Crawford, Respondent=s on-site
superintendent. During the deposition, Respondent=s counsel stated that the training records provided in
response to interrogatory 8 (supra) were Arepresentative minutes of safety meetings.@ In addition, Mr.
Crawford provided additional information regarding the company=s training policies for all employees.
Crawford provided no information, however, regarding the specific training provided to Mr. Morales. On
March 28, 2003 Respondent provided pretrial information required to be exchanged by the parties pursuant
to an order issued by the undersigned on January 23, 2003. In his transmittal letter, Respondent=s counsel
states:
We are hereby supplementing Respondent=s Answers to
Interrogatories to add Mr. Paul Graham as a person with knowledge of
relevant facts. His omission was an oversight that I did not catch until
I prepared the prehearing exchange. The synopsis of his knowledge is
set forth in the prehearing exchange.

      In relevant part, Respondent=s pretrial exchange stated that Mr. Graham would testify that Aall

Staz-On workers observed by OSHA had been trained on fall hazards and use of personal fall protection
systems, including, specifically, Miguel Morales.@ Based upon the above information, as well as additional
information received by Complainant on April 1, 2003, in Respondent=s pretrial exchange, Complainant
made the decision to withdraw item 1 of the citation (Complainant=s brief, p. 6). Although Complainant
states that the decision to withdraw the item was made on that date, Respondent=s counsel states that he was
unaware of the withdrawal until the hearing when Complainant=s counsel withdrew the item on the record.

                                          DISCUSSION




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Based upon the foregoing, it is clear that the compliance officer would not have recommended
that the training citation be issued to Respondent if Mr. Morales had answered in the affirmative in
response to the compliance officer=s question as to whether he had received training in the recognition of
fall hazards. Indeed, without verifying their responses by viewing training records, the compliance officer
accepted the statement of four of the interviewed employees that they had received fall hazard recognition
training. Thus, Complainant=s representatives accepted a minimal verification that Respondent was in
compliance with the training standard. In the absence of that verification for Mr. Morales, Complainant
was substantially justified in citing Respondent for failing to train Mr. Morales as required by the cited
standard.
The quantum of evidence previously established by Complainant as sufficient verification of
compliance with the training standard was met by Respondent with respect to Mr. Morales on March 7,
2002, when answers supplied in response to Complainant=s interrogatories established that Mr. Morales had
received training in Afall causes, fall protection and the OSHA Top Ten@ during four training sessions.
Indeed, Complainant acknowledges that Respondent provided Aproof of training@ for Mr. Morales in
response to interrogatories. (Complainant=s Sur-reply, p. 1.) Thus, as of March 7, 2002, Complainant was
no longer substantially justified in going forward with the alleged training violation. However,
Complainant declined to withdraw that citation until the morning of the hearing on April 9, 2003.
Accordingly, Respondent is entitled to attorney fees and expenses incurred to defend that allegation for the
period March 8, 2002 to April 8, 2003.
Having determined that Respondent is entitled to attorney fees and expenses pursuant to the Act,
it is necessary to determine the amount of the award. The first step in determining reasonable fee and
expense awards is to determine the Alodestar@ Central Brass Manufacturing Co., 14 BNA OSHC 1904
(Rev. Comm. 1990). William B. Hopke Co., 12 BNA OSHC 2158 (Rev. Comm. 1986). The lodestar has
been defined as a:
threshold point of reference which is subject to additions or deductions
for specific reasonsBis determined by multiplying the total number of
hours reasonably spent by a reasonable hourly rate. Hensley, 103 S.Ct.
At 1939; Furtado, 635 F.2d at 920. To determine the number of hours
reasonably spent, one must first determine the number of hours actually
spent and then subtract from that figure hours which were duplicative,
unproductive, excessive, or otherwise unnecessary. Hensley, 103 S.Ct.
At 1939-40, Wojtkowski v. Cade, 725 F.2d 127, 130 (1st Cir 1984);
Furtado, 635 F.2d at 920. In calculating a reasonable hourly rate, one
must consider such factors as the type of work performed, who
performed it, the expertise that it required, and when it was undertaken.

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Furtado, 635 F.2d at 920; Grendel=s Den Inc. v. Larkin, 749 F.2d 945,
950 (1st Cir. 1989).

    Once the lodestar is determined, that figure is either raised or lowered based upon such things as the

quality of representation and results obtained. A similar test should be applied to determine which
expenses should be awarded. Grendel=s Den, supra, at 951. In addition, when determining the lodestar,
the judge should consider the complexity and novelty of the issues based on his experience, knowledge and
expertise of the time required to complete similar activities. Central Brass Manufacturing Co., supra, at
1907.
In its petition for fees, Respondent lists a total of 45.8 hours of attorney time spent between
March 8, 2003 and April 8, 2003 in preparing its defense for the withdrawn citation. Respondent claims an
additional 6.2 hours spent in the preparation of the EAJA application at $125 per hour, Respondent=s claim
is as follows:

                 45.8      x    $125.00        =       $5,725.00

                   6.2     x    $125.00        =         775.00

                                TOTAL                  $6,300.00

      In addition, Respondent claims expenses as follows:
      1.     Parking for jail visit to James Copley on 3/21/03             $ 12.00
      2.     Photocopies (910 @ .20)                                       182.00
      3.     FedEx to Michael Schoen on March 31, 2003                     14.42
      4.     Courthouse parking for trial on April 9, 2003                    5.00
                                           Total Expenses                  $213.42
      Based upon the record of this case, it is concluded that the hours claimed by Respondent are

excessive in relation to the relatively non-complex issue raised in this case. It is clear that Complainant
needed little persuasion based upon company records to verify that Mr. Morales had received fall
protection training to Complainant=s satisfaction. Since Complainant was tardy in withdrawing the item
after receiving training verification, Respondent has been awarded compensation up to the day preceding
the hearing. However, in consideration of the record as a whole, as well as the high competence level of
counsel, it is concluded that the number of hours expended by Respondent for the withdrawn citation
should be reduced by 50%. Accordingly, it is found that 23 hours of attorney time at $125.00 per hour are
recoverable. Thus, $2,875.00 is assessed for attorney fees. Moreover, the claimed 6.2 hours at $125.00 per

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hour ($775.00) for preparation of the EAJA Application is also assessed. Since Respondent failed to
provide any supporting documentation that the claimed expenses were expended as a result of its defense
of the alleged training violation, those expenses in the amount of $213.42 are disapproved.
The total award is as follows:
Attorney fees $2,875.00
EAJA Application 775.00
Total $3,650.00

                                       FINDINGS OF FACT
      Findings of fact relevant and necessary to a determination of all issues have been made above.

Fed. R. Civ. P. 52(a). All proposed findings of fact inconsistent with this decision are hereby denied.
ORDER
Complainant is directed to compensate Respondent $3,650.00 pursuant to the EAJA Act for
attorney fees.

                                                   /s/
                                                   Robert A. Yetman
                                                   Judge, OSHRC

Dated: March 9, 2004

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