U.S. Postal Service (ALJ decision, January 20, 2021)

Plain-English summary

U.S. Postal Service disciplined two mail carriers after they reported work-related injuries, and OSHA cited the agency under the recordkeeping rule that bars discrimination for reporting an injury or illness. The original decision vacated the citation and its proposed $5,432 penalty, but the Commission set that decision aside and remanded for explicit credibility determinations. On remand, the judge credited acting manager Harry Wolfe and labor-relations specialist David Chludzinski, including testimony that the first carrier demonstrated how he lifted a mail sack and that labor relations meaningfully reviewed the disciplinary requests. The judge found that procedural irregularities and mishandled paperwork were business mistakes, not proof of retaliatory pretext. Because the Secretary did not show that the Postal Service disciplined the carriers simply for reporting injuries, the original factual and legal conclusions remained unchanged. The supplemental decision reissued the original vacatur.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1904.35(b)(1)(iv).
• Outcome: Retaliation citation vacated and proposed $5,432 penalty eliminated.
• Key point: Procedural mistakes in a disciplinary process do not establish retaliation without proof that the employer's stated business reason was a pretext for punishing injury reports.

Full text (OSHRC public release)


U.S. Postal Service OSHRC DOCKET NO. 18-0188

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

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

Washington, DC 20036-3457

SECRETARY OF LABOR,

Complainant,

v.

OSHRC DOCKET NO.
1 8 - 0188

U.S. POSTAL SERVICE ,

Respondent.

Appearances:    Kate
S.
O’Scannlain, Solicitor of Labor

Oscar L. Hampton ,
III,
Regional Solicitor

Louise McGauley Betts, Senior Attorney

Jennifer L. Gold , Attorney

U.S. Department of Labor, Office of the Solicitor, Philadelphia, Pennsylvania

For the Complainant

Miriam Dole ,
Attorney

U.S. Postal Service, Eastern Area Law Office , P hiladelphia , Pennsylvania

For the Respondent

Before:       Keith E. Bell

Administrative Law Judge

SUPPLEMENTAL
DECISION
ON REMAND

Th e above-captioned
case is on remand from the Commission. 1 The Secretary of Labor (Secretary) timely filed a Petition for Discretionary Review (PDR) of the underlying decision (Decision) at issue here . Thereafter, the Commission directed this case for review. On July 2 8 , 2020, the Commission issued its Remand Order (Remand) for further consideration.

To recap, t his case concerns
a
claim of alleged
discrimination
for reporting work-related injuries . It
is
brought under
a
n ew
anti- discrimination
regulation
recently
promulgated
and published on May 12, 2016,
under
authority from
the
Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 (OSH Act). In its Remand, the Commission directed the C ourt to :

make credibility determinations concerning evidence that is relevant to whether USPS retaliated against its two mail carriers for reporting work-related injuries, including the conflicting testimony specified above, and to reconsider in light of these determinations whether the Secretary established a violation of §   1904.135(b)(1)(iv).

( Remand at 4. ) Additionally,
the Commission directed the
C ourt
to:

reevaluate the entire record to ascertain whether there is any other conflicting testimony that should be resolved through credibility determinations, or whether there are circumstances that may bear on the witnesses’ credibility.

( Remand at 3. )

As discussed below,
the
C ourt
sets forth the following credibility determinations as instructed by the Commission . After reevaluating the record , the Court reissues the previous D ecision as clarified by this Supplemental D ecision on R emand.

I. Credibility Findings : Harry Wolfe and David Chludzinski

Acting Director
Harry Wolfe

In contemporaneous notes
taken during the testimony of
Acting Director
Harry Wolfe ,
the Court
recorded , “I find this witness to be credible albeit that his memory wasn’t very good.” Much of the initial concern over Mr. Wolfe’s credibility was related to the number of times he testified, “I don’t remember . ” Normally, hearing a witness say “I don’t remember” over and over would raise a flag to the Court regarding his/her credibility in general. However, context is everything. At the beginning of his testimony, it was established that Mr. Wolfe was moved around quite a bit from location to location. At the time of the hearing in December of 2018 , Mr. Wolfe was the acting manager of Pennsylvania Station in Pittsburgh, PA. At the time of the incident s involving PW1 and PW2 in May and June of 2017 , he was acting manager of the Mt. Oliver Post Office. Manager is the highest branch position. ( Tr. at

206. )

Harry Wolfe
left Mt. Oliver sometime in July 2017. Mr. Wolfe
was first at Mt. Oliver in 2014, then at McKnight towards the end of 2014, then, East Liberty and a few other office s, to include Castle Shannon Post Office, before returning to Mt. Oliver in 2017. ( Tr. at 204, 303 . ) The sheer number of times Mr. Wolfe was moved around from one post office to another, makes it plausible that he would not remember the events and incidents in any one of those offices in great detail.

Additionally,
the Court
considered that Mr. Wolfe frequently assisted with deliver y of the mail on top of his duties as manager. He testified that he carried/delivered mail as much as three times per week toward the end of his time at Mt. Oliver because carriers would bid out for a different route at a different location and some quit. ( Tr. at 269 . ) Moreover, wh en he was out delivering the mail, he was still expected to do his job as manager. ( Tr. at

267. ) The combined
     effect of being moved around multiple times and
     having to
     perform multiple jobs at the same time more than explain s Mr. Wolfe’s inability to remember all of the facts surrounding these incidents.

The Secretary argues that Harry Wolfe’s “word has no credence.” (PDR at 19.) The Secretary takes the position that Mr. Wolfe’s inability to remember are mere “claims” and a matter of convenience. ( PDR at 20-21. ) According to the Secretary, “[h]e even claimed not to recall his own emails.” ( PDR at

21. )
    However, the
    Court
    views his difficulty remembering things such as sending emails differently under the circumstances. W hen pressed about his inability to recall many of the emails presented to him, Mr. Wolfe responded, “I’m sorry. I get a lot of emails a day. I send a lot of different email s to different people every day. ” ( Tr. at 245 . )

Although the Secretary
does not
believe Mr. Wolfe’s reasons for his inability to remember certain things, the Court finds his reasons plausible and compelling. Indeed, i n an exchange with C ounsel for the Secretary during the hearing , the C ourt noted , “I would submit to you that his testimony seems to be consistent if you --- I think when you look back on the record, what you’re going to see is overall Mr. Wolfe has just simply testified that he doesn’t remember a lot of this.” ( Tr. at 244 . ) This statement here reflects the C ourt’s impression that Mr. Wolfe was not attempting to deceive the C ourt , but rather genuinely could no t remember certain facts.

Mr. Wolfe was
also
able to overcome
any
concerns regarding his credibility through
a lot of
direct eye contact, a calm and resolute tone, and a demeanor that instilled confidence in the veracity of his responses. However, the Court’s impressions alone do not support the credibility findings for Mr. Wolfe. Taken as a whole, the Court finds that the record evidence also supports Mr. Wolfe’s claim that he did not take action against PW1 or PW2 solely because they reported work-related injuries .

Rather, the evidence reveals that Harry Wolfe
disciplined
PW1
and
PW2
because , as he testified,
he believed both performed unsafe acts. ( Tr.
at
291 . )

As found in the
underlying Decision, overall, the record establishes that any irregularity in paperwork or procedure is a result of business mistake s and unrelated to any retaliatory intent.

The Secretary affirmatively attacks Mr. Wolfe’s credibility by arguing that he “apparently forged Mr. Mayfield’s signature on the PW2 discipline request.” ( PDR at

30. ) When asked about the alleged forgery,
    Mr.
    Wolfe testifie d
    that he did not sign
    Mr.
    Mayfield’s name on the “Request for Discipline” form. ( Tr. at 212 ; Ex . JX-12. ) He further stated that Mr. Mayfield did not sign the document in his presence, and he has never signed for a subordinate before. ( Tr. at
31. ) Despite
    the Court’s
    initial impression that there were similarities between Mr. Wolfe’s signature and the signature that purported to be that of Mr. Mayfield , the Court has no expertise in handwriting analysis and no such expert testified in this case. (Tr. at 129.) Moreover, Mr. Wolfe’s denial that he signed Mr. Mayfield’s name on the form did not leave the Court with the impression that he was lying.

The Secretary also attacked Mr. Wolfe’s credibility on the grounds that he ordered a drug test for PW1 and could not recall doing so, nor could he recall USPS’s policy on when a drug test is authorized. ( PDR at

20. )
    Mr.
    Wolfe testified that he did not
    remember ordering a drug test for any other worker and d id not know the drug testing policy. “I don’t know every policy . ” ( Tr. at 224 . ) This testimony was not surprising in light of the fact that he had only been a manager for two years at the time of the hearing 2 which means that Mr. Wolfe had even less managerial experience at the time of these incidents. (Tr. at 246.)

Labor Relations Specialist
David Chludzinski

The Court has
vivid recollections of Mr. Chludzinski’s testimony.  As the record reflects, he and the Court had several exchanges during his testimony. ( E.g., Tr. at 397-408, 411-414, 416-422, 425-430, 436-440. 448.) He gave lots of eye contact and his demeanor during his testimony was calm and confident. Mr. Chludzinski’s knowledge of Respondent’s policies, practices and procedures coupled with his ability to explain them in an “easy to understand” way, instilled a sense of confidence that the Court could rely on his words.  His testimony made the Court believe that he was unbiased and had no real interest in the outcome of this case.

Examples of his testimony supporting
these
credibility findings include the following
excerpts : M r. Chludzinski empathized with the letter carriers because he used to do that job “for years . ”   (Tr. at 400.) He testified that he wanted to make sure employees were not disciplined improperly and that they should understand why when they did receive corrective action.  (Tr. at 401.) He testified that he pushed back against management recommendations every day.  (Tr. at 405.) He was brutally honest about admitting flaws in the system.  (Tr. at 408 ln 10-13 , 409-410.)

II. Conflicting Testimony
& Other Evidentiary Disputes

As instructed by the Commission, the
Court
has reevaluated the record and identified the following evidentiary conflicts that are affected by these credibility finding s . The Court understands the Commission’s direction to “resolve all evidentiary conflicts” to be based on those indicated in the Secretary ’s P DR .

The Reenactment
– What Happened?

One of the main conflicts
the Commission identified
in the testimony is related
to
“whether the mail carrier actually reenacted how he lifted the mail sack.” ( Remand at 2. ) The Secretary asserts that PW1 never reenacted his lifting technique. ( PDR at 3 . ) However, according to Mr. Wolfe, PW1 came into his office and demonstrated how he injured his shoulder. ( Tr. at 206 -207 . ) On cross-examination, Respondent’s Counsel a sked Mr. Wolfe to demonstrate what PW1 showed him as his manner of lifting the sack. ( Tr. at 277 . ) In response , Mr. Wolfe stood up while he demonstrated a nd described the lift as follows: “ [y] es,
[PW1]
came into my office and informed me he lifted a sack like this (indicating) without bending his knees or back at all and a straight shoulder. He just grabbed the sack on the ground and lifted it up like this (indicating). His legs were completely straight. ” ( Tr. at 278 . ) The Court consider s th is level of detail provided by Mr. Wolfe to describe PW1 ’s lifting technique when evaluating his credibility on the issue of whether a reenactment took place.

Resolving this conflict would be near impossible if the Court only had PW1 ’s injury and subsequent investigation to consider. However, this case provide d another opportunity to see what Mr. Wolfe did in the aftermath of PW2 ’s report of her work-related injury. It is undisputed that Mr. Wolfe went out to the site where PW2’s incident occurred , h e spoke to PW2 , and took photos. ( PDR at 10 ; Tr. at 230; Ex. JX-9 . ) This dem onstrates his approach to an accident investigation and reflects an attempt to find out what led to the injury. Accordingly, it seems consistent that Mr. Wolfe would have asked PW1 to demonstrate his lifting technique and even go to the floor to view the mail bag at some point .

PW1’s testimony itself
also
supports this finding . PW1 testified that he was in Mr. Wolfe’s office for five minutes “talking about the accident or injury [.]” ( Tr. at 34.) PW1 testified that Mr. Wolfe, “asked me what happened, and I told him what happened.” (Tr. at 34.) PW1 never testified what exactly he said when he told Mr. Wolfe “what happened,” to the extent of five entire minutes of discussion. He only answered in the negative when asked by the Secretary’s C ounsel, “ whether Wolfe said anything to you at all about any unsafe acts?” and “whether you performed any reenactment of your lifting method to Wolfe.” (Tr. at 35.) Further, the question posed by Secretary’s C ounsel, whether PW1 “performed any reenactment of [his] lifting method to Wolfe,” connotes a degree of formality that may not have been apparent to PW1 during the five - minute discussion he had with Mr. Wolfe, especially if PW1 was in enough pain to warrant seeking immediate medical attention. 3 Thus, to th is Court , PW1’s testimony is not squarely inconsistent with Mr. Wolfe’s testimony.

Regarding where the reenactment took place,
the Secretary
claims that Mr. Wolfe’s
accounts eviscerate
h is credibility. The Secretary argues that
i n his statement to OSHA,
Mr.
Wolfe stated
“ unequivocally ”
that his entire investigation took place in his office, and they “did not go back out onto the work floor . ” (PDR at 4.) T hen at the hearing, Mr. Wolfe testified that he remember ed PW1 reenacting an improper lifting technique on the work floor. ( PDR at 4 citing Tr. at 210 . )

The record
reveals th e
following:

Q: But I mean, the initial conversation
you had when he came to you, where did you have a conversation about his injury?

A: He spoke with me in my office and then we went on the work floor and I looked at the sack that he lifted.

(Tr. at 207-208.) When
confron ted with his statement to OSHA,
Mr.
Wolfe agreed
that his
statement
indicated that
he ha d
said
“ [PW1]
reenacted out. He was lifting in the office. We did not go back out onto the work floor.” ( Tr. at 209 . ) Afterward, however, Mr. Wolfe maintained that he remember ed going back out on the floor at some poin t: “I remember going out and speaking with [PW1] of where the – where the sack was and looking at the sack. I remember going out there . ” ( Tr. at 210 . )

The
Court
has reconsidered this testimony
as instructed by the Commission . This
evidence
does not reflect an inconsistency of
whether
a reenactment occurred. It reflect s some discrepancy about whether Mr. Wolfe talked with PW1 at any point on the work floor after their conversation in Mr. Wolfe’s office . The Court views this possible inconsistency as minor. T he fact that there was a reenactment by PW1 is the consistent thread in Mr. Wolfe’s testimony and statement to OSHA . Further, it is not a stretch to believe that Mr. Wolfe went to the floor at some point to see the mail sack that PW1 lifted when he got injured. Indeed, it is entirely consistent with his approach to the investigation of PW2 ’s injury. The Court finds that t h e identified testimony regarding the work room floor reflects Mr. Wolfe’s forgetful manner but does not reach the level of lacking credence.

Adverse Inference

The Secretary argues that
Respondent
never produced the
“ written statement ”
PW1
allegedly
gave
to
Mr. Wolfe during
his
investigation. ( PDR
at
4 . ) Further, the Secretary argues that the
Court
should have applied an adverse inference
“that the statement would have corroborated [PW1’s] consistent testimony that he never reenacted his lifting technique for Mr. Wolfe. ” ( PDR at

22. )

T he Commission has recognized the existence and application of the common law principle of adverse inference in administrative proceedings.

Capeway Roofing Sys., Inc. , 20 BNA OSHC 1331, 1343 (No. 00-1968 , 2003) aff’d , 391 F.3d 56 (1st Cit. 2004) . In Capeway, t he Commission found that the application of an adverse inference was appropriate because when one party has evidence but does not present it, it is reasonable to draw a negative or adverse inference against that party, i.e., that the evidence would not help that party's case . 20 BNA OSHC at 1343-44. In Brewer v. Quaker State Oil Ref. Corp. , 72 F.3d 326, 333 (3d Cir. 1995) , the Third Circuit held that f or the adverse inference rule to apply, it is essential that the evidence in question be within the party's control. 4

It
must appear that there has been an actual suppression or withholding of the evidence.

Id.

No unfavorable inference arises when the circumstances indicate that the document or article in question has been lost or accidentally destroyed, or where the failure to produce it is otherwise properly accounted for. Id. Regarding the application of an “adverse inference , ” the D.C. Circuit Court of Appeals found that, g enerally, whether to draw the  inference  is a matter of discretion for the fact finder. Int’l Union, United Auto . , Aerospace and Agric . Implement Workers of Am . (UAW) v. NLRB, 459 F.2d 1329, 1335 (D.C. Cir. 1972).

The Secretary focuses on this alleged
“ written statement ”
from PW1 based solely on
OSHA Whistleblower Investigator Ryan
Fencik’s interview notes with Mr. Wolfe
–
“ I did not take notes when [PW1] was reporting the injury because he was writing a statement.” (PDR at 4; Ex. GX-14 at 1 ln 19-20. ) The record does not indicate what Mr. Wolfe meant by the phrase “writing a statement . ” The Secretary did not question Mr. Wolfe what he meant by that phrase at the hearing. (Tr. at 209, 218 (questioning Mr. Wolfe only on lines 4-16 of Ex. GX-14).)

When examined at the hearing ,
Mr.
Fencik was
also
not
illuminating , even though he was “the primary fact gatherer in this case.” (Tr. at 521.) He testified that he was a “whistleblower investigator,” and that his involvement with this matter stemmed from the section 11(c) investigation, which closed in September 2017. (Tr. at 523 ; see also Tr. at 510 , 520 ( OSHA C ompliance Safety and Health O fficer Christopher Gavin testifying that he investigated the section 1904 matter , and that Mr. Fencik was part of the “whistleblower team.”) .) Mr. Fencik’s October 2017 interview with Mr. Wolfe had been previously scheduled under the section 11(c) investigation, but the Secretary used Mr. Wolfe’s resulting interview statement for th e section 1904 matter at hand. (Tr. at 526-527.)

At the hearing,
Mr.
Fencik
was questioned regarding Mr. Wolfe’s statement:

Q:
So,
during the course of your investigation what did the Respondent tell you about who was responsi bl e for making the disciplinary d e c ision?

A: I was not given any information.

Q: And
w hat information did they provide you that substantiated – or what information and documents did they provide you to support that [PW1] was given his discipl in e ?

A: I don’t understand that question.

…

Q: And could you give us some examples of some of the facts that are in addition to the timing which we’ve just spoken about that are indicative of discrimination or retaliation?

A: I’m not quite sure what you’re asking?

(Tr. at
532-533.) Mr.
Fencik then testified that he did not see Mr. Wolfe read the statement after the end of their interview. (Tr. at 537.)

PW1 also supplied a statement to
Mr.
Fencik. (Ex. GX-7.) In his statement, PW1
states:

I then went to see Wolfe, who was in his office. Wolfe asked if I could carry my route. I responded that I think I needed to see a doctor. Wolfe gave me the papers to go to Concentra which are the worker’s comp papers that they need to sign. I then went to the doctor. The doctor put me on light duty and told me that I could not drive a company vehicle, raise my shoulder above my head, or lift anything over 10 lbs. After I saw the doctor I returned to work and gave Wolfe the worker’s comp papers and the papers that I received from the doctor.

(Ex. GX-7 at 1-2.)
PW1 did not mention any other written statement
in his statement to
Mr.
Fencik. At
the hearing , PW1 testified that “I had to fill out a – like a paper of what happened and sign,” and that he gave that to Mr. Wolfe. (Tr. at 33-34.) Nothing else about this “written statement” was drawn out at the hearing .

In the case at bar,
no
adverse inference
was applied
because the record was not sufficiently developed to make such a determination. Although not required to do so, the Secretary did not file a motion to compel the production of PW1’s “written statement. ” The response to such a motion may have shed more light on Respondent’s reasons and culpability in not providing the statemen t . However, the record does not support drawing an adverse inference in th is case .

Rescinded
Discipline

The Secretary argues
that
the fact that
Mr.
Kammermeier rescinded the discipline
(for both employees)
imposed by
Mr.
Wolfe
and expunged it from the ir
record s
after concluding
that the “evidence did not support discipline , ”
support s
his contention that
Mr.
Wolfe’s decision to discipline
PW1
and
PW2
was motivated by an intent to discriminate against them for reporting work-related injuries. ( PDR at 9, 13 . )

Mr. Kammermeier testified that he met with
Union Steward
Mr. Bugay and considered whatever evidence was in the discipline file for the PW1 case. ( Tr. at

313. ) He further testified that his involvement in the
     PW2
     case was “[t]he exact same . ” ( Tr.
     at
314. ) When asked what was in the case file, Mr. Kammermeier testified that he did not remember. ( Tr.
     at
     310, 316. )
     He agreed that he found no evidence to support the issued discipline, stating, “[if] there was nothing in the file, then I had nothing to go on, but what the union presented to me.” (Tr. at 315.) He then testified that when managers move around or supervisors “switch buildings,” “[i]t’s typical for information not to be passed along through the process. Either it’s lost or just not placed in
     [the grievance file] .” (Tr. at 332.)

Union
Steward
Mr. Bugay testified
about the
grievance meeting
he had
with Mr. Kammermeir regarding PW1 and PW2. (Tr. at 472-478.) Mr. Bugay testified that for the PW1 matter , he and Mr. Kammermeir had the request for discipline, the P re-Disciplinary Interview (P DI ) not e s, and the accident investigatio n notes. (Tr. at 473-474.) For the PW2 matter, they reviewed the PDI notes, but Mr.

Bugay did not recall seeing any photographs. (Tr. at 478.) In both matters, Mr. Bugay testified that he and Mr. Kammermeir resolved the grievances with the statement that there was “not enough” evidence to support “ a seven - day suspension. ” (Tr. at 475, 478.)

When parsed, t his testimony shows that Mr. Kammermeir decided, in his managerial discretion, that whatever was in Respondent’s disciplinary record for PW1 and PW2 did not overcome what Union Steward Mr. Bugay presented to him – at least not to the point of justifying a seven-day suspension. As found in the underlying Decision, the disciplinary process in this case was marred by mishandling of paperwork. Mr. Chludzinski testified with brutal honesty about the shortcomings of Respondent’s process – e.g., time constraints, inaccuracies entered into the system . (Tr. at 409-410.) He also testified that he relied on his conversation with Mr. Wolfe to approve the discipline matters in this case, and the record does not establish that this conversation was documented in the file that Mr. Kammermeir reviewed. (Tr. at 418-419 , 429-430, 432-433.) Accordingly, Mr. Kammermeier’s decision to rescind the discipline for PW1 and PW2 does not assist the Secretary in meeting his burden of proof.

Timing of Decision to Discipline

The Secretary
claims
that
Mr.
Wolfe ’s actions
during the disciplinary process
show his animus to discipline his employees solely for reporting their injuries. For example, the Secretary argues that e mails reveal that Mr. Wolfe made his decision to discipline PW2 before her PDI was condu c ted . ( PDR at 10, 24 . )

Mr. Wolfe’s
emails to his management reflect his desire to keep them informed of happenings in his department and his belief that PW1 and PW2 performed unsafe acts. (Tr. at 220-221, 238; Ex. JX-15.) It is stipulated that Mr. Wolfe began investigating the accidents on the day they occurred. (Decision at 14-15 ¶¶ 17, 29 (parties stipulated that Mr. Wolfe began investigating PW1’s and PW2’s injuries on the day of their respective injuries). Despite these emails, and in accordance with Respondent’s procedures, as testified to by Mr. Chludzinski, Mr. Wolfe moved the accident investigations along to the next phase – the PDIs . As noted above, Mr. Chludzinski testified that supervisors are under a time constraint to get investigations into the “system ”, so he does not rely on them a “ whole lot. ” (Tr. 409-10.) During an exchange with Secretary’s Counsel over an email in which he references the level of discipline to be determined in the PDI, Mr. Wolfe testified that “every PDI I’ve ever done has been the same. Every PDI is to gather information to determine what level --- whether what level of discipline is issued.” (Tr. at 221.)

The
Secretary also argues that
Mr. Wolfe
“ admitted ”
he requested the discipline after denying
to OSHA
Whistleblower I nvestigator Fencik
that he had any part in discipline for PW1. (PDR at 19-20.) The Secretary’s critique of Mr. Wolfe’s statement to Mr. Fencik is fierce but fruitless . The statement that the Secretary questions is the following: “ I did not decide to discipline PW1, because I was not present… I do not recall being involved to any extent with PW1’s injury after holding initial investigation with PW1.” (Tr. at 218-219; Ex. G X- 14.) The Secretary claims th at th e record establishes that Mr. Wolfe’s statement is “a glaring falsehood,” “unequivocal,” and “clearly false.” (PDR at 19-20.)

These
statements to Mr. Fencik a re
consistent with Mr. Wolfe’s manner at the hearing. Indeed, the second sentence merely states that he does not recall being involved with PW1’s injury after his initial investigation. (Tr. at 218.) Regarding the rest of the statement, Mr. Wolfe agreed with these sentences at the hearing , with the clarification that he was in fact in Oklahoma during PW1’s PDI. (Tr. at 219.) The first sentence, “I did not decide to discipline PW1, because I was not present,” was within the context of Mr. Wolfe being in Oklahoma at the time of the PDI. (Tr. at 218-219.)

Most importantly, the phrase “decide to discipline” in this context was not developed at the hearing . The record establishes that (1) PW1’s immediate supervisor Robin Derry issued the official discipline letter, that (2) Mr. Chludzinski drafted the letter, that (3) Mr. Chludzinski and Mr. Wolfe discussed the matter, that (4) Mr. Mayfield delivered the disciplinary package to Mr. Chludzinski, that (5) Mr. Mayfield conducted the PD I , and that (6) Mr. Wolfe believed from the time of his initial investigation and submitting the disciplinary request that PW1 performed an unsafe act. As far as this Court is concerned , any of these people could consider themselves the one who issued the discipline, just as any of these people could consider someone else in this chain to have been the one to issue the discipline. Respondent’s disciplinary process is not as clear in this record as the Secretary claims.

Meaningful Review

The Secretary claims that Respondent provide d
an “utter lack of meaningful review” of Mr. Wolfe’s disciplinary requests. (PDR at 30.) The Secretary argues that Mr. Ch lu dzinski “ freely admit s” that he based his approval of the discipline solely on a conversation with Mr. Wolfe, without reviewing any documentary evidence or interviewing the employees. ( PDR at 31 citing Tr. at 408 . ) What Mr. Chludzinski actually said was , with regard to PW1, “I don’t recall seeing any photos … I don’t recall specifically reviewing any documents related to this particular discipline. I write hundreds of these a year. But I do recall specifically talking to Harry Wolfe. ” ( Tr. at 408 . )

Mr. Chludzinski did note Mr. Wolfe’s comment in PW1’s accident report, of which he says he typically does not “put a whole lot of stock in” due to potential inaccuracies due to time restraints . (Tr. at 410-412; Ex. JX-2 at 2.) In this accident report, dated the day of the accident , Mr. Wolfe commented that he determined that PW1’s injury was caused by “lifting the relay with all arms. Not using legs.” (Ex. JX -2 at 2.) Mr. Chludzinski testified that he saw that comment in Mr. Wolfe’s accident report and focused on that comment during their conversation regarding discipline for PW1. (Tr. at 4 12 .) Here, Mr. Chludzinski testified that Mr. Wolfe told him that he [Wolfe] said: “I asked him to show me how he lifted the sack.” (Tr. at 420.) Mr. Chludzinski went on to testify, “He [Wolfe] said he personally went out and had him show him how he lifted the sack.” (Tr. at 420.) Further he testified, “He said he [Wolfe] had him [PW1] reenact.” (Tr. at 421.)

Mr. Chludzinski used his conversation with Mr. Wolfe to draft both disciplinary letters for PW1 and PW2. He decided to insert his own language , based on his own mail - carrying experience, into the disciplinary letters. (Tr. at 400, 455-456.) For PW1, he added, “ p eople don’t normally injure themselves doing something as simple as lifting a sack a few feet onto a level surface. ” (Tr. at 397-400; Ex. JX-6.) For PW2, Mr. Chludzinski wrote that, “you should have avoided getting close enough to the fence so the dog could bite you. While it would not have helped in this instance, you’re also reminded to keep your dog spray on you while engaged in street delivery.” (Tr. at 450; Ex. JX-13.) Here, these actions by Mr. C h ludzinski establish that there was meaningful review of Mr. Wolfe’s disciplinary requests.

The Secretary attempts to shoehorn Mr. Chludzinski’s additions in these disciplinary letters into a “shifting justification” argument .

(PDR at 18, 23, 25-26.)

On
the contrary, Mr. Chludzinski (not Mr. Wolfe) focused the disciplinary justifications based on his review of the matters and his personal mail-carrying experience. (Tr. at 400, 455-456.) The record also establishes that Mr. Chludzinski considers various collective bargain ing agreements when reviewing disciplinary requests, not all of which are for alleged safety violations. (Tr. at 394, 413-414, 447.)

The
issue here is
whether Respondent legitimately
performed
its
accident investigation
and subsequent disciplinary review , not the legitimacy of Respondent’s safety program’s procedures. This record is not sufficiently developed to examine whether Respondent’s safety program is inherently retaliatory, as the Secretary seems to be arguing. The Secretary had a chance to focus this case on Respondent’s safety program – Respondent’s own safety rules, its own rules of procedure, Mr. Wolfe’s burden of proof, and Mr. Chludzinski’s standard of review. But this information was not drawn out at the hearing . Instead, it has been undisputed throughout this proceeding that Mr. Chludzinski was the approving official for these disciplinary matters . (Tr. at 364-365.) A nd he testified that, in his opinion, Respondent’s procedures were adequately followed in th e disciplinary process and that he still believes that PW1 and PW2 deserve the discipline. (Tr. at 456-457.)

III. Reevaluation
of the Evidence:
Amplification /Clarification
of Legal Analysis

As instructed by the Commission, the
evidence has been
reevaluated
in light of
the credibility determinations discussed above. After reconsideration, the Court concludes that the previous Decision stands. The following legal analysis serves to amplify and clarify the analysis wit h in the previous Decision.

Pretext not
Prima Facie
Causation

This case is about pretext, not
the Secretary’s
prima facie
causation
burden . Many of the case
citations
that the Secretary relies
on
in his PDR
center on
the
prima facie
element of
causation, not pretext . See,
e.g . ,
( PDR at 18, 29-31 )
citing
McKenna v. City of Philadelphia , 649 F.3d 171, 17 8 –80 (3d Cir. 2011) (holding that employer did not produce a legitimate business reason , never reaching pretext analysis ) ; ( PDR at 17-18, 23-24, 32 ) citing Farrell v. Planters Lifesavers Co. , 206 F.3d 271, 279, 280-81 , 284, 286 (3d Cir. 2000) (specifically noting that the case did not address pretext, cautioning not to conflate analysis of causation in the prima facie case with pretext analysis, but allowing evidence within the causal chain to be used in both the prima facie case analysis and pretext analysis) ; ( PDR at 18, 25, 26 n.20 ) citing Waddell v. Small Tube Prod s. , Inc. , 799 F.2d 69, 73 (3d Cir.1986) (discussing “inconsistent explanations” in the context of reviewing a lower court’s holding of plaintiff’s prima facie case . ) These case citations are inapposite to the essential issue here :

whether the Secretary prove d
that Respondent’s
proffered
reasons are a
mere
pretext to the
true reason
it
disciplined PW1 and PW2. Ross v. Gilhuly , 755 F.3d 185, 193 ( 3 d Cir. 2014) .

T he underlying
D ecision
specifies
that the parties did not dispute that the Secretary established causation in his prima facie case for t his matter. Once Respondent produced its legitimate business reason for disciplining PW1 and PW2, the burden shift ed back to the Secretary to prove that this reason was pretextual, i.e., that in actuality, Respondent disciplined PW1 and PW2 “simply because they reported a work injury.” Improve Tracking of Workplace Injuries and Illnesses, Final Rule, 81 Fed. Reg. 2962 4 , 29672 (May 12, 2016) (to be codified at 29 C.F.R. Part 1904) (preamble explaining the scope of the cited regulation) . Here, the Secretary must demonstrate that Respondent’s explanation is untrue due to “weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions from which a reasonable juror could conclude that the Defendants’ explanation is unworthy of credence, and hence infer that the employer did not act for the asserted [legitimate] reasons.”

Carvalho-Grevious v. Del. State Univ. , 851 F.3d 249, 262 (3d Cir. 2017) (citation omitted) .

The prism of a pretext analysis is different
from the
prism of the
prima facie
element of causation analysis. Farrell , 206 F.3d
at
286 . The
pretext analysis is focused on whether the
Secretary persuades the
trier of fact
to believe his story over
Respondent’s. St. Mary’s Honor Ctr. v. Hicks , 509 U.S. 502, 519 (1993). Taking the record as a whole, as explained in the underlying D ecision, the Court found that the Secretary did not carry his burden here. Rather, the Decision credits Respondent’s proffered reason of disciplining PW1 and PW2 for breaking Respondent’s safety rules, and that business mistakes as opposed to any retaliatory animus caused the procedural irregularities that the Secretary unearthed in this matter.

I t
is
irrelevant in this case whether
PW1 or PW2
actually
broke
Respondent’s safety rules
( a surprising twist here since most all of the cases before this Court involve alleged safety violations). Even if Mr. Wolfe incorrectly concluded that PW1 and PW2 broke Respondent’s safety rule s , his potential incorrect conclusion s are still valid , in this case , if he truly believed them . See Capps v. Mondelez Glob., LLC , 847 F.3d 144, 152-155 and nn.7, 9 (3d Cir. 2017) (Third Circuit explaining the concept of “honest belief” in the pretext analysis step of FMLA, ADEA and Title VII retaliation analyses when review ing summary judgment holding).

T he cited regulation in this case places OSHA’s
objective , with regard to this standard,
at a crossroad with
Respondent’s
objective
when confronted with what
Mr.
Wolfe confronted: an
injury report
plus
an injury.

OSHA wants to protect
the reporting while
Respondent
wants to investigate the injury.

At that point in time, the dual
objectives
of these two entities intertwine d . Respondent’s
investigation of the injury must begin
at some point .
Respondent
has put forth evidence to show that
its
investigation began, legitimately, when
Mr.
Wolfe discussed with his employees their actions that led up to the ir injur ies . The record, though thin, establishes that Mr. Wolfe and PW1 did discuss PW1 ’s actions ( i.e., “what happened”) that led to PW1 ’s injury. The record for PW2 is more developed as discussed above
–
Mr.
Wolfe left his building and travelled to
PW2 , took
pictures,
and discussed what happened with her before sending her to seek medical treatment.

As discussed above,
both
PW1 and PW2
stated
that they discussed “what happened” with
Mr.
Wolfe with enough sufficiency so that
Mr.
Wolfe allowed them to leave their job s
and seek medical attention.

Both instances establish that
Mr.
Wolfe began the investigation into each injury at the moment he was confronted with the injury report plus the worker’s injury. He did not fail to begin to investigate either of these injuries at that point in time.

See also
Decision at 14-15 ¶¶ 17, 29
(parties’ stipulation s ). Mr.
Wolfe then followed the next steps to move the investigation s along in accordance with Respondent’s procedure s as testified to by Mr. Chludzinski ( whose testimony was not criticized by the Secretary before th is C ourt ) .

The drug test order for
PW1
is found to be a genuine mistake by
Mr.
Wolfe –
Mr.
Wolfe was notified shortly after ward
by Respondent’s nurse administrator
that it was
contrary to Respondent policy
and
Mr.
Chlud z inski
also
testified that it was
“highly unusual.”

(Tr. at 222-223, 421-422.) When confronted
with this at the hearing,
Mr.
Wolfe testified that he d id
not know all of Respondent’s policies. (Tr. at 224.) Mr. Wolfe was an inexperienced manager who was still learning Respondent’s procedures at the time of the incident. Based on the record as a whole , Mr. Wolfe’s questionable actions are found to be genuine procedural blunders and not evidence of true animus toward PW1 and PW2 simply because they reported their injuries.

The
record ,
moreover ,
establishes that
Mr.
Chlud z inski , not Mr. Wolfe,
was
the
official who
ultimately
approved
the discipline
as part of
Respondent’s
disciplinary
process . T he Secretary
shoulders
the burden
at
th e
pretext stage of this retaliat ion
analysis,
yet he
did not
question the validity of
Mr.
Chlud z inski’s testimony
with regard to the process
and procedures
at issue here , or
Ms.
Gerst-Stewart ’s
testi mony
that Respondent’s Labor Relations
officials
(i.e., Mr. Chludzinski)
are “the experts”
who
make sure
Respondent’s
management
officials (i.e., Mr. Wolfe) are
“doing all the rules, following all the contracts and doing what we’re supposed to do.” (Tr. at 364-367. )

The record establishes that Respondent’s disciplinary procedures involved multiple steps and multiple people up and down Respondent’s management chain. It also included union representation. It is for Respondent to implement its own policy and procedures, and for the Secretary to prove that any alleged irregularities are a pretext to Respondent’s proffered legitimate business reason.

The Secretary parses Respondent’s policies and procedures but has no expertise in them. The Secretary had the opportunity at the hearing to pose such questions to Mr. Chlu dz in s ki and then critique his answers with the aid of the record but did not do so . T he Secretary ’s claim that any aspect of this complex system was pretextual is unsupported .

Here, as found in the underlying
D ecision, the record establishes that most of the deviations of policy and procedure were a result of general mishandling of paperwork. The record does not establish, as the Secretary claims, that any of the deviations of policy and procedure in this multi-step, multi-person investigative process, are a result of intentional retaliation against PW1 or PW2 solely for reporting their injuries. It is easier for this trier of fact to believe Respondent’s story of business mistakes, especially with a new manager who admits not knowing every policy, over the Secretary’s story, which would require a level of concerted animus and sophistication that is just not evident in this record.

Abatement

In his PDR, the Secretary stated:
“Yet the ALJ appeared to conclude that the Secretary was required to identify specific abatement in the citation based on the Secretary’s interim enforcement procedures for § 1904.35, and that his failure to do so constituted a legal deficiency in the citation.” (PDR at 33.) The Commission addressed this argument in the R emand with the following instruction to the C ourt :

There is no requirement under the Occupational Safety and Health Act, OSHA’s recordkeeping regulations, or Commission precedent that compels the Secretary to specify a means of abatement in a citation alleged under 29 C.F.R. §   1904.35(b)(1)(iv).

See
29 U.S.C. § 658(a) (citation “shall be in writing and shall describe with particularity the nature of the violation, including a reference to the . . . regulation . . . alleged to have been violated” and “shall fix a reasonable time for the abatement of the violation”).

Moreover, the Commission has long held that while OSHA’s internal manuals may “provide[] guidance to OSHA professionals,” they “[do] not have the force and effect of law, nor [do they] confer important procedural or substantive rights or duties on individuals.” Caterpillar Inc. , 15 BNA OSHC 2153, 2173 n.24 (No. 87-0922, 1993).

The judge shall take this ruling into account in reaching his decision on remand.

(Remand at 4 n.4.) The
remarks regarding abatement, though
unclearly
stated in
the
underlying
D ecision,
still
stand a nd are
clarified
as follows .

In
the pertinent section of the
underlying
D ecision,
the
C ourt
evaluat ed
Respondent’s claim , first raised in the applicability portion of its post-hearing brie f , that the Secretary was seeking to touch Respondent’s management incentive programs using “unfounded suspicion . ” 5 (Decision at 39- 41.) Although the Secretary claimed that he was not challenging Respondent’s pay-for-performance system, the Secretary was still attempting to use it as circumstantial evidence against Respondent. Th erefore, the C ourt questioned the Secretary’s claim, which seemed at odds with the following observations : (1) the Citation stated that abatement was still required at the time that the C itation was issued, (2) there was nothing else Respondent could do to make these employees whole at the time the C itation was issued , (3) the Secretary’s own interim enforcement procedu res required abatement , (4) the Secretary re-alleged that abatement was still required in the Complaint , and (5) the Secretary spent a considerable amount of effort researching and presenting that research of Respondent’s pay-for-performance system in his post-hearing brief .

At no time did
the
C ourt
find or consider the
C itation
to be
“legally deficient.” Rather,
the
C ourt
observed that the Secretary’s use of the evidence was more consistent with Respondent’s claims of “unfounded suspicion” than with the Secretary’s claims of “animus , ” and then found that the Secretary’s arguments regarding Mr. Wolfe’s actions with regard to Respondent’s busines programs were not persuasive.

CONCLUSION

As instructed by the Commission when it
set aside
the initial
D ecision ,
the
C ourt has
reevaluated the
record
with particular focus on credibility findings related to the testimony of Harry Wolfe and David Chludzinski . T he conclusions of law and fact in the initial D ecision remain unchanged.

ORDER

The
findings of fact
and legal analysis
in this
Supplemental Decision on Remand
are incorporated by reference
into the Decision issued in the above-captioned case (Docket No. 18-0188) dated May 18 , 2020. Th at Decision, as clarified with this Supplemental Decision on Remand, is hereby reissued.

/s/ Keith E. Bell

Keith E. Bell

Judge, OSHRC

DATE:
December 22, 2020

Washington, D.C.      

"

1
In this context, “Commission” refers to the duly appointed and confirmed Commission members of the U.S. Occupational Safety and Health Review Commission who review decisions of the Administrative Law Judges on appeal .

2
Mr.
Wolfe’s testimony
here
is corroborated by the dates and comments within his performance appraisal for that time period. (Ex. GX -4 at 74-75 of 78.) In April of 2016, Mr. Wolfe referred to himself as a “supervisor,” while in October of 2016, he referred to himself as an “acting manager.” Additionally, in April of 2016, Mr. Wolfe’s evaluator remarked this about Mr. Wolfe: “Harry will be a great boss one day. Just keep doing what you are doing and the[y] will fight over this kid.” (Ex. GX -4 at 74 of 78.) Later, in October of 2016, Mr. Wolfe’s evaluator remarked: “Acting Manager is looking great [ . ] ” (Ex. GX -4 at 75 of 78.)

3
PW1’s testimony regarding training also shows his
careful
interpretation of questions posed to him:

Q: The Judge asked you before if you had been trained on safe lifting procedures and you said you had. Have you been trained on safe lifting procedures more than once?

A: No. I me an
we have talks, but not like actual training if that’s what you’re asking. We have service talks.

(Tr. at 50.)

4
This case could be appealed to either t he Third Circuit Court of Appeals or the D.C. Circuit Court of Appeals. See 29 U.S.C. §   660(a) (“Any person adversely affected or aggrieved by an order of the Commission . . . may obtain . . . review . . . in any United States court of appeals for the circuit in which the violation is alleged to have occurred or where the employer has its principal office, or in the Court of Appeals for the District of Columbia Circuit . . . .”) , (b) (“The Secretary may also obtain review…in the United States court of appeals for the circuit in which the alleged violation occurred or in which the employer has its principal office…”).
;
Kerns Bros. Tree Serv. , 18 BNA OSHC 2064, 2067 (No. 96-1719, 2000) (Commission generally applies law of the circuit where it is probable a case will be appealed).

5
In its post-hearing brief, Respondent argued:

OSHA’s dismissive view of the impact of the new cause of action fails to explain how it now has the authority to demand a change in a business’s performance review programs in the name of ‘ recordkeeping. ’ OSHA asserts the authority under 1904 to examine and evaluate an employer’s performance and compensation programs, its training and evaluation of employees, including ‘ all criteria ’ used to evaluate management.

(Resp’t Post-Hr’g Br. at 42.)