Tom Reed Contracting

Plain-English summary

An administrative law judge entered a default against Tom Reed Contracting after the company did not file an answer or respond to later orders. The company's owner had timely asked for rescheduling after the first show-cause order because he was receiving treatment for a serious medical condition. The Commission noted that the judge did not directly address that request and that the Secretary had not claimed prejudice from the delayed answer. Because dismissal might be too harsh without more information about the owner's incapacity, the Commission set aside the default decision. The case was remanded for the judge to reconsider dismissal and, if reinstated, to consider simplified proceedings that would not require an answer.

Decision snapshot

• Cited standard(s): None identified in the decision.
• Outcome: Default judgment set aside and case remanded for further proceedings.
• Key point: Before imposing dismissal, a judge must account for a timely extension request based on a serious medical condition and the absence of demonstrated prejudice.

Full text (OSHRC public release)

Tom Reed Contracting, Docket No.14-1659

Walter, J. David
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EN-US
X-NONE
X-NONE

United
States of America

OCCUPATIONAL
SAFETY AND HEALTH REVIEW COMMISSION

1120 20 th Street, N.W., Ninth Floor

Washington,
DC 20036-3457

SECRETARY OF LABOR,

Complainant,

v.

OSHRC Docket No. 14-1659

TOM REED CONTRACTING,

Respondent.

APPEARANCES:

Jeffrey
Rogoff, Regional Solicitor; U.S. Department of Labor, New York, NY

For
the Complainant

Thomas
P. Reed; Tom Reed Contracting, West Milford, NJ

For
the Respondent

REMAND ORDER

Before: ATTWOOD, Acting
Chairman and M ac DOUGALL,
Commissioner.

BY THE COMMISSION:

On August
24, 2015, Chief Administrative Law Judge Covette Rooney issued a default judgment
against Tom Reed Contracting based on its failure to file an Answer and respond
to two orders issued by the judge. For the reasons that follow, we set aside
the judge’s decision and remand this case for further proceedings in a
manner consistent with this order.

BACKGROUND

Following an
inspection, the Occupational Safety and Health Administration issued Respondent
a one-item serious citation with a proposed penalty of $2,800. Thomas P. Reed,
Respondent’s owner who is appearing pro se, timely filed a notice of
contest. After the Secretary filed his Complaint
and the company failed to timely file an Answer, the judge
issued Respondent a show cause order directing that a response be submitted by
April 21, 2015. On April 20, 2015, the judge received a letter from Mr. Reed
requesting “rescheduling” due to ongoing medical treatment for a
serious health condition. A week later, the judge’s office left Mr. Reed
a voicemail message and sent him an email advising him that he needed to file
an Answer. When Mr. Reed did not file an Answer, the judge issued the company
an Order to File Answer on June 3, 2014, but received no response. On July 1,
2015, the judge issued the company a second show cause order. After the company
failed to respond to this order, the judge entered a default decision, notice
of which was sent on August 7, 2015. The decision was docketed on August 24,
2015, and Mr. Reed timely filed a petition with the Commission on September 8,
2015, seeking review of the judge’s default decision.

DISCUSSION

“Whether
dismissal is appropriate in any situation depends on whether a party’s
behavior demonstrates contumacy, whether the other party suffered prejudice,
and whether other aggravating circumstances were present.” Caterpillar,
Inc. , 17 BNA OSHC 1507, 1509 (No. 94-347, 1996) (citations omitted). Here,
the judge found that the company’s conduct was “contumacious in
that . . . the regular first class and certified mailings were
received, yet the Respondent failed to respond to any of the three orders
issued by the undersigned.”

However,
while Respondent did not file an Answer, the company did respond to the first
show cause order by asking for “rescheduling.” Further, this
request for “rescheduling,” which could be construed as a request
for additional time was both in writing and received in advance of the date on
which the pleading was due to be filed. See 29 C.F.R. § 2200.5
(“Extension of time”). In his petition to the Commission, Mr. Reed
asserts that because of his ongoing medical treatment, he has “not [been]
able to respond in a timely manner.” This statement is consistent with
his response to the judge’s first show cause order, in which he explained
that he had been undergoing treatment “for the last two months and it was
impossible to respond.”

Although Mr.
Reed was silent from his April 20, 2015 response until his September 8, 2015
petition, we are mindful of his repeated assertions regarding his medical
condition. In particular, we note that Mr. Reed’s request for
rescheduling was not directly addressed by the judge. We also note that the
Secretary has never claimed he was prejudiced by the company’s failure to
timely file an Answer or respond to the judge’s orders. Under these
circumstances, including the absence of more specific information regarding the
timing and extent of Mr. Reed’s incapacitation during this period, we
conclude that a sanction of dismissal may not be appropriate at this time and
direct the judge to reconsider her decision dismissing the case. See Larry
McMurran, dba Lar’s Plumbing, Inc. , 25 BNA OSHC 1472, 1473 (No.
14-1806, 2015) (being mindful of owner’s serious medical condition in
setting aside default decision); Architectural Glass & Metal Co. , 19
BNA OSHC 1546, 1547 (No. 00-0389, 2001) (“Although a judge has very broad
discretion in imposing sanctions for noncompliance with Commission Rules of
Procedure or his own orders, the judge must not impose a sanction that is too
harsh under the circumstances of the case.”); compare Phila. Constr.
Equip., Inc. , 16 BNA OSHC 1128, 1130-31 (No. 92-899, 1993) (finding a
pattern of disregard where respondent consistently did not respond until it
received orders threatening dismissal or default, failed to appear for a
hearing, and appeared late at a reinstatement hearing); Sealtite Corp. ,
15 BNA OSHC 1130, 1134 (No. 88-1431, 1991) (finding respondent in default
because of long pattern of failure to comply with Commission rules and the
judge’s orders).

Accordingly, we set aside the judge’s decision and remand the
case for further proceedings. See 29 C.F.R. § 2200.101(b)
(motion to set aside sanctions). If the judge reinstates the case, we note that
it may be appropriate to consider assigning this matter to Simplified
Proceedings, thus obviating the need for this pro se Respondent to file an
Answer. See 29 C.F.R. § 2200.200(b)(1) (complaints and answers
not required under simplified proceedings); § 2200.202 (eligibility
for simplified proceedings).

SO
ORDERED.

/s/                                                        

Cynthia
L. Attwood

Acting
Chairman

/s/                                                        

Heather
L. MacDougall

Dated: September 25,
2015                                      Commissioner

United States of
America

OCCUPATIONAL SAFETY AND HEALTH REVIEW
COMMISSION

1120 20 th
Street, N.W., Ninth Floor

Washington, DC
20036-3457

SECRETARY OF LABOR,

Complainant,

v.

OSHRC
Docket No. 14-1659

Tom Reed Contracting,

Respondent.

ORDER
OF DEFAULT

On
October 10, 2014, the Occupational Safety and Health Administration
(“OSHA”) issued a Citation and Notification of Penalty
(“citation”) to Respondent for OSHA inspection number 990367. The
citation alleged one violation of OSHA’s safety and health standards for
a proposed penalty of $2,800.00. Respondent’s notice of contest was submitted by Thomas P.
Reed and received by the Secretary on October 21. 2014. The Respondent’s
notice of contest was docketed and the Commission’s Notice of Docketing
was sent to the Respondent at its record address on November 4, 2014. The
Notice of Docketing return card was not returned to the Commission.

On
February 19, 2015, the Secretary filed the complaint in this matter. Respondent
did not file an answer as required by Commission Rule 34(b), 29 C.F.R. §
2200.34(b). On April 7, 2015, the undersigned issued an Order to Show Cause Why
Notice of Contest Should Not Be Dismissed (“First Order”) to
Respondent because an answer had not been filed. The First Order directed
Respondent to show cause on or before April 21, 2015, as to why it should not
be declared in default for not filing an answer to the complaint within the
time permitted by the Commission’s Rules of Procedure. Respondent was
advised that failure to respond to the First Order would result in all of the
alleged violations set out in the OSHA citation being affirmed and the proposed
penalties being assessed without a hearing.  

The
First Order was sent to Respondent, at its record address, through the United
States Postal Service (USPS) by regular first class mail and by certified mail with return receipt requested. The USPS green return receipt
card that accompanied the certified mailing was signed by “Thomas
Reed” on April 17, 2015, and returned to my office. On April 20, 2015,
the undersigned received a letter from Mr. Reed requesting a rescheduling. He
stated he had been unable to respond earlier due to medical treatment.

On
June 3, 2015, the undersigned issued an Order To File Answer (“Second
Order”). The Second Order directed Respondent to file an Answer to the
Complaint on or before June 16, 2015. Respondent did not contact my office in
response to the Second Order. The first class mailing was not returned by USPS
and is deemed received by the Respondent.

On
July 1, 2015, the undersigned issued an Order to Show Cause Why Notice of
Contest Should Not Be Dismissed (“Third Order”) to Respondent
because an answer had not been filed. The Third Order directed Respondent to
show cause on or before July 15, 2015, as to why it should not be declared in
default for not filing an answer to the complaint within the time permitted by
the Commission’s Rules of Procedure. Respondent was advised that failure
to respond to the Third Order would result in all of the alleged violations set
out in the OSHA citation being affirmed and the proposed penalties being
assessed without a hearing.  

The
Third Order was sent to Respondent, at its record address, through the United
States Postal Service (USPS) by regular first class mail and by certified mail with return receipt requested. The USPS green return receipt
card, which accompanied the certified mailing, was returned to the Commission
showing that “Thomas Reed” signed for the certified mailing on July
8, 2015. The mailing by regular first class mail was not returned and is
presumed delivered. It is concluded the Respondent received the Third Order.
Despite this, Respondent has not responded to the Third Order and has not
otherwise communicated with my office.

Commission
Rule 101(a), 29 C.F.R. § 2200.101(a), provides in pertinent part that:

Sanctions. When any party has failed to plead
or otherwise proceed as provided by these rules or as required by the . . .
Judge, he may be declared to be in default . . . after having been afforded an
opportunity to show cause why he should not be declared to be in default. . .
.Thereafter, the . . . Judge, in [her] discretion, may enter a decision against
the defaulting party. . . .

A
judge has very broad discretion in imposing sanctions for noncompliance with
the judge’s orders or the Commission’s Rules of Procedure. See
Sealtite Corp. , 15 BNA OSHC 1130, 1134 (No. 88-1431, 1991). Nonetheless,
the Commission has long held that dismissal is too harsh a sanction for failure
to comply with certain prehearing orders unless the record shows contumacious
conduct by the noncomplying party, prejudice to the opposing party, or a
pattern of disregard for Commission proceedings. See Architectural Glass
& Metal Co. , 19 BNA OSHC 1546, 1547 (No. 00-0389, 2001). I find
Respondent’s conduct here to be contumacious in that, as set out above,
the regular first class and certified mailings were received, yet the
Respondent failed to respond to any of the three orders issued by the
undersigned.

For
these reasons, Respondent is found to be in DEFAULT, its notice of contest is
DISMISSED, and the OSHA citation issued to Respondent on October 10, 2014,
inspection number 990367, is AFFIRMED in its entirety and penalties ASSESSED.

SO
ORDERED. 

/s/                    

Covette
Rooney

Chief
Judge

Dated: August 21, 2015

Washington,
D.C.