Dollar Tree Stores, Inc., #2828

Plain-English summary

OSHA inspected Dollar Tree store #2828 in Billings, Montana, and sent the resulting citation to the company's corporate office by certified mail. The corporate mailroom received it on March 3, 2017, making March 24 the deadline to contest, but the citation was not routed to the correct person within the company. Dollar Tree did not submit its contest until April 21. The judge found that inadequate internal mail-handling procedures did not establish mistake, excusable neglect, or extraordinary circumstances warranting relief from the final order. The late notice of contest was dismissed, and the citation and proposed $152,100 penalty were affirmed in full.

Decision snapshot

• Cited standard(s): The decision does not identify the substantive standards in the underlying citation.
• Outcome: Late notice of contest dismissed; citation and $152,100 proposed penalty affirmed in full.
• Key point: Failure to route a received OSHA citation to the correct corporate employee does not excuse a missed 15-working-day contest deadline.

Full text (OSHRC public release)


Document

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

UNITED STATES DEPARTMENT OF LABOR,       OSHRC No. 17-0724

Complainant,

v.

DOLLAR TREE STORES, INC., #2828, and its Successors,

Respondent.

DECISION AND ORDER

This case
concerns the issue of whether
Respondent , Dollar Tree Stores, Inc. #2828 , properly
filed its Notice of Contest within the statutory time limit, and further, whether Respondent has me t
its burden of showing “extraordinary circumstances”
entitling
it
to relief from a
Final Order t hat became
effective on
March 24, 2017 .
See
Fed. R. Civ. P. 60(b)(6).

As discussed below,
a review of the entire record supports the finding that the Respondent has failed to present sufficient
evidence of
“extraordinary circumstances , ”
or any other justifications
entitling
it
to relief , as a matter of law .

I .    Background

Respondent seeks relief from a final order caused by its failure to contest citations within the statutorily required time. Respondent states that its failure to timely contest was due to the citation not being routed to the correct person within the company once received. Without more, this claim fails to show that Respondent’s untimely action was caused by “mistake” or “excusable neglect” entitling Respondent to relief pursuant to Fed. R. Civ. P. 60(b). As such,
the Secretary requests an Order of Dismissal of Respondent’s Late Notice of Contest and an Order Affirming the Citation and the Proposed Penalty.

1. On October 13, 2016, the Occupational Safety and Health Administration (“OSHA”) began an inspection of Dollar Tree store # 2828 located at 1327 Main Street, Billings, Montana 59105.

2. On February 27, 2017, as a result of that inspection, OSHA issued a Citation and Notification of Penalty (“Citations”) to Respondent by certified mail sent to its corporate office at 500 Volvo Parkway, Chesapeake, VA 23320 (the same address from which its untimely notice of contest was sent). The certified mail receipt reflects that the citation was received March 3, 2017, which Respondent admits in its late notice of contest. Exhibit A.

3. Section 10(a) of the Occupational Safety & Health Act of 1970, 29 U.S.C. § 651
   et seq.
   (“the Act”), gives an employer fifteen working days from receipt of the citation and notification of penalty to notify the Secretary that it wishes to contest the citation or the proposed assessment of penalty. Pursuant to this section:

If, within fifteen working days from the receipt of the notice issued by the Secretary the employer fails to notify the Secretary that he intends to contest the citation or proposed assessment of penalty . . . the citation and the assessment, as proposed,
shall
be deemed a final order of the Commission and not subject to review by any court or agency.
(Emphasis added).

R espondent was entitled to 15 working days to contest the Citation. This period expired on March 24, 2017, and the Citation then became a final order of the Occupational Safety and Health Review Commission.

4.    The Citation included the following provision intended to alert Respondent to the imperative of filing any notice of contest within fifteen business days of receipt of the Citation (boldface and underlined typeface are in the original):

Right to Contest
– You have the right to contest this Citation and Notification of Penalty. You may contest all citation items or only individual items. You may also contest proposed penalties and/or abatement dates without contesting the underlying violations. Unless you inform the Area Director in writing that you intend to contest the citation(s) and/or proposed penalty(ies) within 15 working days after receipt, the citation(s) and the proposed penalties will become a final order of the Occupational Safety and Health Review Commission and may not be reviewed by any court or agency .

The Citation was accompanied by a booklet which reiterated the need to contest in a timely fashion.

5.    Despite these notices, Respondent did not submit a timely contest to OSHA. Rather, on April 21, 2017, Respondent submitted a letter to the Commission’s Executive Secretary asking that its late contest be considered.

6.    Federal Rule of Civil Procedure 60(b) sets forth limited grounds for relief from a final order. A late filing may be excused pursuant to Rule 60(b)(1) if the final order was entered as a result of “mistake, inadvertence, surprise, or excusable neglect.” Branciforte Builders, Inc.,
9 BNA OSHC 2113, 2117 (No. 80-1920, 1981). The party seeking relief under Rule 60(b) bears the burden of demonstrating that it is entitled to relief. See Burrows Paper Corp.,
23 BNA OSHC 1131 (No. 09-1559, 2010);
Louisiana-Pacific Corp.,
13 BNA OSHC 2020, 2021 (No. 86-1266, 1989).

7.    Respondent’s April 21 contest letter acknowledges that “ … although
the Citation and Notification of Penalty was signed by our mailroom manager at our headquarters office on March 3, the package has not yet been received by any department within our office to date.”
1
The Commission has consistently ruled that “[e]mployers must maintain orderly procedures for handling important documents,” and that when the lack of such procedures results in the untimely filing of a notice of contest, relief under Rule 60(b) is not warranted. See A.W. Ross,
Inc.,
19 BNA OSHC 1147, 1149 (No. 99-0945, 2000);
see also Louisiana-Pacific Corp.,
13 BNA OSHC at 2021. See also
Creative Gold, Inc. , 20 BNA OSHC 1217 at *3 (Nos. 02-1560 and 02-1561, 2003) (finding in part that Respondent’s inadequate mail handling procedures did not justify relief under FRCP 60(b)). Respondent has failed to provide any evidence that it has in place adequate procedures to ensure that important mail is docketed and processed in a way that ensures timely responses. Respondent acknowledges actually receiving the Citation at its corporate office, but has provided no explanation warranting relief.

8.    Respondent was on notice by actual communications from OSHA that its contest was due by March 24, 2017. The evidence of record h ere
fails
to support a finding of mistake or excusable neglect
sufficient to justify the relief requested .

The OSHA
Billings
Area Office did not receive a Notice of Contest from Respondent ,
Dollar Tree Stores, Inc. , or its designated representative within the statutory time period. On the Citation and Notification of Penalty, under the heading
Right to Contest , it relates:

Unless you inform the Area Director in writing that you intend to contest the citation(s) and/or proposed penalty
(ies) within 15 working days after receipt, the citation(s) and the proposed penalty
(ies) will become a final order of the Occupational Safety and Health Review Commission and may not be reviewed by any court or
agency .

II.    Argument

A
party seeking relief under Rule 60(b) must show “extraordinary circumstances,” and “extraordinary circumstances rarely exist when a party seeks relief from a judgment that resulted from the party’s deliberate choices .” Budget Blinds, Inc. v. White , 536 F.2d 244, 255 (3d Cir. 2008) ;
see also Ackermann v. United States , 340 U.S. 193, 212 (1950) (“free, calculated, deliberate choices are not to be relieved from” ) .
Respondent did not timely file its Notice of
Contest within a reasonable period of time, nor has Respondent carried its burden in showing that it was faultless.
Rule 60(b) is grounded in equity.
See Cox v. Horn , 757 F.3d 113, 124 (3d Cir. 2014). A party seeking equity must do equity.
See
Freck v. IRS , 37 F.3d 986, 996 (3d Cir. 1994). Respondent has not carried its burden of showing why it is entitled to equitable relief.

III.    Conclusion

Neither the grounds that
Respondent cites , nor the reasons for the delay in
filing a Notice of Contest , can be
attributed to the
Secretary. The delay falls squarely on Respondent.
That Respondent’s internal mail handling procedures were inadequate or ineffectual in properly forwarding the Secretary’s
Citation and Notification of Penalty
to the appropriate
employee, counsel or representative
does not, under the circumstances,
sho w ‘extraordinary circumstances’
which would j ustify relief under Rule 60(b) . Respondent has also not shown that it was
a party
“that was faultless in the delay.”

The Secretary’s pleading has sufficiently articulated evidence and arguments, which
logicall y support the inescapable
legal
conclusion that Respondent is not entitled,
as a matter of
law, to the
relief
sought.
The Secretary’s articulated evidence clearly establishes that under Section 10(a) of the OSH Act, respondent did not timely file its Notice of Contest.

The Court has thoroughly reviewed
and carefully considered
the
entire
record before it, including the Secretary’s Motion and
all the exhibits attached thereto, as well as Respondent’s
arguments and
responsive
pleadings.
The Court finds
that Respondent’s arguments and responsive
documents
were less than persuasive, and that the record demonstrates that Respondent has failed to
sufficiently
carry
its
burden of persuasion
as to the existence of extraordinary circumstances,
excusable neglect, mistake, inadvertence, surprise,
fraud, newly discovered evidence
or
any
other grounds
that would justify relief .

The Court finds that , on balance,
the cited case law, arguments and evidence adduced in the record
demonstrate that the Secretary has
sufficiently
carried his burden of persuasion .
Good cause has been shown, by a clear
and convincing
preponderance of the evidence, to sustain the Secretary’s Motion.

T HEREFORE , Respondent’s untimely contest
is DISMISSED and
its Counter-Motion is DENIED.

The Secretary’s Citation and Notification of Penalty is AFFIRMED . T he proposed Penalty of $152,100 is also AFFIRMED in the entirety pursuant
to Section 10(c) of the Act, 29 U.S.C. § 659(c).

SO ORDERED          /s/               

HON. JOHN H. SCHUMACHER

Administrative Law Judge

Date:
June
27 , 2017

Denver, Colorado

"

1
The Court will presume that Respondent intended to say: “March 3, 2017.”