Juan Guillen

Plain-English summary

OSHA cited Juan Guillen for failing to provide required scaffold-hazard training under 29 C.F.R. § 1926.454(a). An employee working from a mobile scaffold fell and died from his injuries. Guillen did not answer the Secretary's complaint or requests for admissions, so the material allegations were deemed admitted. The judge found no genuine dispute over applicability, noncompliance, exposure, knowledge, or serious classification. Summary judgment was granted, the citation was affirmed, and a $2,800 penalty was assessed.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.454(a)
• Outcome: The serious scaffold-training citation was affirmed with a $2,800 penalty.
• Key point: Failure to answer a complaint and requests for admission can establish the material facts needed for summary judgment.

Full text (OSHRC public release)



Juan Guillen., Docket No. 16-1214

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

100 Alabama St. S.W

Building 1924 Room 2R90

Atlanta, GA 30303-31 0 4

SECRETARY OF LABOR,

Complainant ,

v.

OSHRC Docket No.
16-1214

JUAN GUILLEN,
and its successors ,

Respondent.

Attorneys and Law firms

Matthew P. Sallusti ,
Attorney,
Office of the Solicitor,
U.S. Department of Labor,
Dallas, TX , GA , for
Complainant .

Juan Guillen , Pro se,
Corpus Christi, TX ,
for Respondent.

MEMORANDUM OPINION AND ORDER

Honorable John B. Gatto , United States Administrative Law Judge.

I .
BACKGROUND

Respondent
Juan Guillen
(Guillen)
was issued
a citation with a proposed penalty of $ 2,800 .00
under the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651 -678
(the Act)
by
the United States Department of Labor’s Occupational Safety and Health Administration (OSHA) 1
for an alleged serious 2
violation of
29
C.F.R. §
1926.454(a), OSHA’s training requirements standard related to scaffolds . After
Guillen
contested the citation,
Complainant
Secretary of Labor (Secretary)
filed a formal complaint 3
with the Commission
seeking an order affirming the citation and proposed penalty. The Sec retary subsequently
filed
a “re - formatted” motion and a second
“ re-formatted ”
motion seeking an order granting
summary judgment in his favor. 4

Guillen
did not file a response to the motion.

The
Secretary
asserts, and the Court agrees, in light of
Guillen ’ s failure to answer and or respond to
the
Secretary’s
complaint and
his
requests for admission,
the
allegations and
requests contained therein are deemed admitted.
Since Guillen failed to answer or respond to the complaint, the allegations
in the complaint
that jurisdiction of this action is conferred upon the Commission by § 10(c) of the Act , 29 U.S.C. § 659(c),
and that
Guillen
is an employer engaged in a business affecting commerce within the meaning of § 3(5) of the Act, 29 U.S.C. § 652(5), are deemed admitted.
(Court’s Oct. 7, 2016 Order at 2; Compl.
¶¶ 1, 2 ). T he
Court
concludes
the
Commission has jurisdiction
of this action pursuant to section 10(c) of the Act.
Pursuant to Commission Rule 90(a), after carefully considering all the evidence and the arguments of
counsel, the Court issues this
Memorandum Opinion
and Order, which
constitutes its final disposition of the proceedings .
For the reasons indicated
infra , the
Secretary’s summary judgment motion is
GRANTED .

II.
LEGAL STANDARDS

A. Summary Judgment

Under Rule 56(c) of the Federal Rules of Civil Procedure, 5
“[a]
party may move for summary judgment, identifying each claim or defense — or the part of each claim or defense — on which summary judgment is sought.”
Fed. R. Civ. P. 56(a).
“A
party is
entitled
to summary judgment if there is ‘no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’”
Young v. United Parcel Serv., Inc. ,
––– U.S. –––,
135 S. Ct. 1338,
1355 (2015) ( citing
Fed. Rule Civ. Proc. 56(a)).

In making that determination, a court must view the evidence “in the light most favorable to the opposing party.”
Tolan v. Cotton ,
––– U.S. –––,
134 S. Ct. 1861, 186 6
(2014) (citing
Adickes v. S.H. Kress & Co.,
398 U.S. 144, 157 (1970) ) ; see also
Anderson v. Liberty Lobby, Inc ., 477 U.S. 242, 255 (1986). Further, t he Supreme Court
has
reminded us of the axiom that
“ in ruling on a
motion
f or
summary
judgment , ‘[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.’”
Tolan , 134 S. Ct.
at
1863 (citing
Anderson,
supra) .

“Of course, a party seeking summary judgment always bears the initial responsibility ”
of informing the
C ourt
“ of the basis for its motion, and identifying those portions of” the depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials, “which it believes demonstrates the absence of a genuine issue of material fact.”
Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986).

Commission Rule 34(b) mandates that “ [w] ithin 20 days after service of the complaint, the party against whom the complaint was issued shall file an answer with the Commission” which “shall contain a short and plain statement denying those allegations in the complaint which the party intends to contest.  
A ny allegation not denied shall be deemed admitted.” 29 C.F.R §2200.
34(b) (1),
(2) . Since
Guillen
failed to file an answer , all
allegations in the c omplaint ,
and the
citation incorporated therein,
are
deemed
a dmitted.

Likewise,
where
requests for admissions
have been served on a party ,
“ [e]ach
matter is deemed admitted unless, within 30 days after service of the requests
. . . the party to whom t he requests are directed serves upon the requesting party a written answer specifically admitting or denying the matter involved in whole or in part, or asserting that it cannot be truthfully admitted or denied and setting forth in detail the reasons why this is so, or an objection, stating in detail the reasons therefor. ”
29 CFR § 2200.54(b) . Again, s ince
Guillen
failed to file
an answer to the Secretary’s
requests for admissions ,

all
allegations in the
requests
are
also deemed a dmitted.

Thus, to the extent
the
complaint , the citation, and
the Secretary’s requests for admissions
contain
material fact s,
by virtue of
Guillen ’s deemed admissions,
t here
are
no genuine dispute s
as to
any of those
material
facts .

B.
Violation of a
Cited
S tandard

Un der the law of the
Fifth Circuit , the jurisdiction in which this case arose,
to
make out a prima facie case for the violation of
this
standard ,
the Secretary
“must show by a preponderance of evidence:
(1) that the cited standard applies; (2) noncompliance with the cited standard; (3) access or exposure to the violative conditions; and (4) that the employer had actual or constructive knowledge of the conditions through the exercise of reasonable due diligence. ”
Sanderson Farms, Inc. v. Perez , 811 F.3d 730, 735
(5th Cir. 2016)
( citing
Jesse Remodeling ,
LLC , 22 BNA OSHC 1340 (2006);
Atlantic Battery Co. , 16 BNA OSHC 2131 (1994) ) .

Therefore, as the movant, in order to be entitled to summary judgment, the
Secretary
must show that ,
view ing
the evidence in the light most favorable to
Guillen ,
there is
no genuine dispute as to
any material fact
related to each
element of
the Secretary’s
prima facie . For the reasons indicated
infra , the Court concludes the
Secretary
has carried his burden.

C.
Classification

A “serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.” 29 U.S.C. § 666(k). Thus, “[w]hether the employer intended to violate an OSHA standard is irrelevant. The only question relevant to the employer's state of mind is whether he knew or with the exercise of reasonable diligence could have known of the violation.”
Georgia Elec. Co. v. Marshall , 595 F.2d 309, 318–19 (5th Cir. 1979).

Here,
s ince
Guillen
failed to answer or respond to
the
Secretary ’s requests for admissions,
view ing
the evidence in the light most favorable to
Guillen ,
there is
no genuine dispute
that
Guillen’s
employee
died as a result of injuries he sustained after he fell off of the scaffolding
or that
the citation was prop erly
classified as a serious violation.
( Sec’y’s Statement Undisputed Material Facts
¶¶
9,
15;
Sec’y’s Req. Admis.
¶ ¶
6,
1 4) .

III. ANALYSIS

The citation in this case alleges
Guillen violated
29 C.F.R §
1926.454(a), OSHA ’s
standard on
training requirements related to scaffolds, which mandates “[t]he   employer shall have each employee who performs work while on a scaffold trained by a person qualified in the
subject matter to recognize the hazards associated with the type of scaffold being used and to understand the procedures to control or minimize those hazards ”
in that “[o] n or about January 19, 2016, at store #1524, an employee was exposed to a fall hazard while
working from a mobile scaffold without being trained on the hazards associated with working
from a mobile scaffold .”

A. Applicability of Standard

The scaffold standard “applies to all scaffolds used in workplaces covered by” the Safety and Health Regulations for Construction. 29 C.F.R § 1926.450(a). Viewing the evidence in the light most favorable to Guillen, since he failed to answer or respond to the Secretary’s requests for admissions, there is no genuine dispute that his employee was working on a scaffold. (Sec’y’s Statement Undisputed Material Facts ¶¶ 19-24; Sec’y’s Req. Admis. ¶¶ 1-3). Therefore, there is no genuine dispute that the cited standard applied.

B. Violation of Standard

V iew ing
the evidence in the light most favorable to
Guillen ,
the re is
no genuine dispute that
Guillen
did not have each employee who performed work while on a
scaffold trained by a person qualified in the subject matter to recognize the hazards associated with the
type of scaffold being used and to understand the procedures to control or minimize those hazard .
(Court’s Oct. 7, 2016 Order at 2; Compl. at Ex. A p. 6;
Sec’y’s Statement Undisputed Material Facts ¶¶ 1, 3, 19-24; Sec’y’s Req. Admis.
¶¶ 4, 8).
T here fore, there
is
no genuine dispute
that the cited standard was violated.

C. Exposure to Hazard

Since
Guillen failed to answer or respond to the Secretary’s complaint or requests for admissions,
there is
no genuine dispute that Guillen employed Enrique Perez and that on or about January 19, 2016, at store #1524, Perez was exposed to a fall hazard while working from a mobile scaffold and
died as a result of
injuries
sustained when he fell off
of the
scaffolding.
(Court’s Oct. 7, 2016 Order at 2; Compl. at Ex. A p. 6;
Sec’y’s Statement Undisputed Material Facts ¶¶ 19-24 ;
Sec’y’s Req. Admis. ¶¶ 5-6). Therefore, there is
no genuine dispute that Guillen’s employee was exposed to a fall hazard.

D. Knowledge of Violation

T he
Secretary
must show
there is no genuine dispute that
Guillen
“ had actual or constructive knowledge of the conditions through the exercise of reasonable due diligence .”
Sanderson Farms , 811 F.3d
at 735. To prove knowledge, “the Secretary must show that the
employer knew of, or with exercise of reasonable diligence could have known of the non-complying condition.”
Id. ,
811 F.3d
at 736 ( citing Trinity Industries v. OSHRC , 206 F.3d 539, 542 (5th Cir.
2000) ) .

Since
Guillen
failed to answer or respond to
the
Secretary ’s requests for admissions ,
there
is
no genuine dispute that
Guillen
knew
he
had
failed to inquire with Perez concer ning the amount of training
received
in relation to scaffolding erection , and further, that Guillen
knew
he
had not provided
his
employees, including Perez, with training
on the hazards associated with working from a scaffold .
( Sec’y’s
Statement Undisputed
Material Facts ¶¶ 19-24 ;
Sec’y’s Req. Admis.
¶¶ 4, 8, 9 ) . Thus,
there
is
no genuine dispute that
Guillen
had
both actual and
constructive knowledge of the
violative
conditions
since
he
failed to
exercise reasonable due diligence .

S ince
the
Secretary
has
show n
there is
no genuine dispute as to
any material fact
related to each
element of
his prima facie case ,
and since
Guillen
waived his right to present any affirmative defenses after having failed to file an answer to the complaint,
the
Court concludes the Secretary
is entitled to judgment as a matter of law .
Young v. United Parcel Serv., Inc. ,
––– U.S. –––,
135 S. Ct. 1338, 1355 (2015) ( citing
Fed. Rule Civ. Proc. 56(a)).

IV .
PENALTY

The
Secretary
proposed a penalty of $2,800.00 for the violation. Under the Act, an employer who commits a “serious” violation may be assessed a civil penalty of up to $7,000 for each such violation.12 29 U.S.C. § 666(b). The Commission is empowered to “assess all civil penalties” provided in this section, “giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations.” 29 U.S.C. § 666(j).

Since
Guillen
failed to answer or respond to
the complaint,
there
is
no genuine dispute that
the penalty proposed for the violation “is appropriate within the meaning of § 17(j) of the Act,
giving
due consideration to the size of the business, the gravity of the violation, the good faith of
Guillen , and the history of previous violations.”
( Court’s Oct. 7, 2016 Order at 2;
Compl. ¶ 6;
Compl. at Ex. A p. 6 .) Th us , the Court finds the appropri ate civil penalty is $2,800.00. Accordingly,

V. ORDER

IT IS HEREBY ORDERED THAT
the S ecretary
is entitled to judgment as a matter of law
and therefore hi s motion
for summary judgment
is
GRANTED
and
the
trial in this action is
CANCELLED , the
citation is
AFFIRMED ,
and
Guillen
is assessed and directed to pay to the
Secretary
a civil penalty of $2,800.00.

SO ORDERED .

Dated: March 6, 2017                /s/            

Atlanta, GA                JOHN B. GATTO, Judge

"

1
The Secretary of Labor (Secretary) delegated his authority under the Act to the Assistant Secretary of Labor for Occupational Safety and Health, who heads OSHA, and assigned responsibility for enforcement of the Act to OSHA.
See
65 Fed.Reg. 50017 (2000). The Assistant Secretary has promulgated occupational safety and health standards,
see e.g. , 29 C.F.R. Parts 1910 and 1926, and has redelegated his authority to OSHA’s Area Directors to issue citations and proposed penalties to enforce the Act.
See
29 C.F.R. §§ 1903.14(a) and 1903.15(a).

2
Under section 17 of the Act, violations are characterized as “willful,” “repeated,” “serious,” or “not to be of a serious nature” (referred to by the Commission as “other-than-serious”). 29 U.S.C. §§
666(a), (b), (c).

3
Attached to the complaint and also adopted by reference was the citation at issue . Commission Rule 30(d) provides that “[s] tatements in a pleading may be adopted by reference in a different part of the same pleading or in another pleading or in any motion. A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.”
29 C.F.R §2200.30(d). Therefore, any reference to the complaint in this memorandum also includes the citation.

4
The Court denied the Secretary’s initial summary judgment motion for failing to comply with the
s ummary judgment requirements outlined in the Court’s
Standing Order.

Since the previously filed summary judgment motions are moot, this memorandum only addresses the second “re-formatted’” motion.

5
U nder
the Act,
“[u]nless the Commission has adopted a different rule, its proceedings shall be in accordance with
the Federal Rules of Civil Procedure.” 29 U.S.C. § 661(g). Commission Rule 61 provides
that
“[m] otions for summary judgment are covered by Federal Rule of Civil Procedure 56.”
29 C.F.R §2200.61.