Carolyn Manti, d/b/a Manti Homes

Plain-English summary

OSHA cited Manti Homes for two serious and three repeated construction violations involving housekeeping, ladders, and scaffolding, with proposed penalties totaling $19,400. After Manti missed the formal answer deadline, the company sent a handwritten response that disputed the cited conditions but did not use the expected legal form. The ALJ dismissed the notice of contest, but the Commission held that the pro se employer's response showed reasonable diligence and could be treated as an answer. It also allowed defenses first stated in the review petition because the case had barely progressed and the Secretary would not be prejudiced. The Commission reinstated the contest and remanded for a hearing before a new judge.

Decision snapshot

• Cited standard(s): None identified by section number in the decision.
• Outcome: Remanded. The default dismissal was reversed, the notice of contest was reinstated, and the employer received an opportunity for a hearing.
• Key point: A pro se employer's technically incomplete filing may prevent default when it plainly disputes the citation and shows reasonable diligence.

Full text (OSHRC public release)

UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419

FAX:
COM (202) 60&5060
ns (202) 6064060
..

SECRETARY OF LABOR, ..
..
Complainant, :
.
v.
OSHRC Docket No. 92-2222
CAROLYN MANTI, d/b/a
MANTI HOMES,

Respondent.

DECISION
BEFORE: FOULKE, Chairman, and MONTOYA, Commissioner.
BY THE COMMISSION:
I. Background
Following an inspection by representatives of the Occupational Safety and Health
Administration of the Department of Labor, Manti was cited for two serious and three
repeated violations of construction standards related to housekeeping, portable ladders, and
scaffolding. A total penalty of $19,400 was proposed. The Secretary of Labor filed a timely
complaint on September 25, 1992. Manti was required to file its answer by October 29,
1992.
No answer having been received, Review Commission Chief Administrative Law
Judge Irving Sommer ma sportte issued an order on November 5 directing Manti to show
cause by November 15 why it should not be found in default for failing to file a timely
answer. The show cause order stated: -
Respondent is ORDERED TO SHOW CAUSE...why Respondent should not
be declared to be in default and the citation(s) and penalties should not be
affirmed due to its failure to file an answer to the complaint within the time
permitted under the Commission’s Rules of Procedure.

2

The end of the order stated, in capitalized, bold and underlined type:
FAILURE TO RESPOND TO THIS ORDER WILL RESULT IN ALL
VIOLATIONS BEING AFFIRMED AND ALL PROPOSED PENALTIES
BEING ASSESSED AGAINST RESPONDENT WITHOUT A HEARING.
The order was sent by certified mail and was signed for by Joe Manti on November 7. In
a handwritten letter postmarked on November 11 and received by Chief Judge Sommer on
November 16, Carolyn Manti wrote:
All equipment was in process of being dismantled & moved to other area of
job site. Agent was aware of this. It was not improperly erected. By the time
agent left equipment was moved and properly erected on different site. Agent
was also aware of this.
This response was not served on the Secretary.
On December 17, the Secretary filed a motion to dismiss under Commission Rule
4l(a),l 29 C.F.R. 8 2200.41(a) or, in the alternative, for an order requiring a proper answer
to the complaint. The Secretary argued that Manti failed to explain why it failed to file a
timely answer and that its letter did not respond to each allegation in the complaint. Manti
failed to respond to the motion. On January 7, 1993, Judge Richard Gordon, to whom the
case had been assigned by Chief Judge Sommer, granted the Secretary’s motion to dismiss
Manti’s notice of contest. Manti then filed a timely petition for discretionary review which
raised substantive defenses to the citations and also stated that:
I have been in this family owned business for over 30 years. In that time
there have been no serious accidents or a fatality. In sight [sic] of this I
believe these fines & charges are unreasonable & unjust. I am trying to run

’ Rule 41 provides:

0 2200.41 Failure to obey rules.

(a) Sanctions. When any party has failed to plead or otherwise proceed as provided by these
rules or as required by the Commission or Judge, he may be declared to be in default either:
(1) On the initiative of the Commission or Judge, after having been afforded an opportunity
to show cause why he should not be declared to be in default; or
(2) On the motion of a party. Thereafter, the Commission or Judge, in their discretion, may
enter a decision against the defaulting party or strike any pleading or document not filed in
accordance with these rules.
(b) Motion to set aside sanctions. For reasons deemed sufficient by the Commission or Judge
and upon motion expeditiously made, the Commission or Judge may set aside a sanction
imposed under paragraph (a) of this rule.

3

a very small business to the best of my ability & keep my head above water
at the same time. I have no money to hire and [sic] attorney, so I am
pleading my own case. If an attorney is to be hired it will be one to file my
bankruptcy proceedings as this will put me out of business. I do not have, nor
ever have had, the amount of funds available to me that you are looking for.
This response was sent to the Department of Labor which forwarded it to the Commission.

II. Discussion
Under Commission Rule 41(b),2 the Commission may set aside a dismissal for
reasons it deems sufficient. As a result, the Commission has wide latitude and discretion in
its review of sanctions imposed under Rule 41(a). Choice Electric Cop., 14 BNA OSHC
1899, 1900, 1987-90 CCH OSHD Tl29,141, p. 38,941 (No. 88-1393, 1990).
In the usual case involving a dismissal for failure to file a timely answer, the employer
not only failed to file an answer, but also did not respond to the judge’s show cause order.
See e.g., Imageries, 15 BNA OSHC 1545, 1992 CCH OSHD ll 29,639 (No. 90-378, 1992);
Choice Electric Cop.; Hickman, 14 BNA OSHC 2193, 1991 CCH OSHD ll 29,278 (No. 9O-
1169, 1991); Bywater Sales & Sen?, 13 BNA OSHC 1268,1986-87 CCH OSHD ll 27,896 (No.
86.1214,1987). When reviewing these cases, the Commission’s inquiry has been whether the
employer can demonstrate sufficient reason to set aside the default. This has generally
required remanding the case to the judge to afford the employer an opportunity to make
that showing.3

2 See supra note 1.

3 In Imageries, 15 BNA OSHC 1545, 1992 CCH OSHD ll29,639 (No. 90-378, 1992), a case involving an
employer appearing pro se, the Commission upheld the judge’s dismissal after Imageries failed to respond to
the Commission’s briefing order. The Commission noted that

Pro se litigants are not exempt from following Commission rules and procedures that
require all litigants to take some action or suffer a penalty. Virtually everyone is subject to
laws and regulations that, when they are enforced, penalize those who choose not to respond.
This is true of a parking ticket and a tax return, as well as a proceeding before this
Commission or any state or federal court.

Id. at 1547, 1992 CCH OSHD at p. 40,131 (Emphasis in original).

4

Here, Manti responded to the show cause order. While the response did not “show
cause” why the notice of contest should not be dismissed, it raised defenses to the citation
and can be construed as an answer, especially under the Commission’s current Rule 34(b),4
29 C.F.R. 5 2200.34(b), which allows an employer to file as an answer a “short and plain
statement denying those allegations in the complaint which the party intends to contest.”
Manti apparently believed that this filing constituted a sufficient response to the judge’s show,
cause order?
Employers appearing pro se are often confused by legal terminology and may not be
fully cognizant of the legal technicalities of the judicial process. Action Group, Inc., 14 BNA
OSHC 1934, 1935, 1987-90 CCH OSHD Tl29,166, p. 39,018 (No. 882058, 1990). Because
they cannot be expected to be as familiar with legal proceedings as a trained attorney, pro
se employers are to be held to a standard of reasonable diligence. Imageties, 15 BNA OSHC
at 1547, 1992 CCH OSHD at p. 40,131.
In our view, Manti’s response, while not technically complete, was sufficient to
demonstrate that this pro se employer was proceeding with the requisite “reasonable
diligence” sufficient to justify relief from the judge’s dismissal order. We will, therefore,
reinstate Manti’s notice of contest, accept its response as an answer to the judge’s show
cause order of November 5, 1992, and remand the matter to the judge for a hearing.

4 The Commissionrules were amended on December 10, 1992, after the judge dismissed Manti’s notice of
contest. 57 Fed. Reg. 41,676. The adoption of these new rules does not excuse an employer’s noncompliance
with the rules then in effect. However, the Commission favors a decision based on the merits of the case
rather than on a procedural flaw. Better Baked Foods, Inc., 10 BNA OSHC 1382, 1383, 1982 CCH OSHD
7 25,873, p. 32,366 (No. 80-3689-A, 1982). That Manti’s answer would have satisfied current requirements
shows that excusing its technical noncompliance with the rules then applicable would neither affect the
integrity of the Commission’s procedures nor prejudice the Secretary’sability to pursue the case.

In our view, a pro se employer could reasonably conclude that the proper response to a show cause order
for failure to file an answer is to file the answer.

5

We also note that Manti raised specific defenses to the various violations for the first

time in its petition for discretionary review. Under Commission Rule 34(b)(4),6 29 C.F.R.
5 2200.34(b)(4), a Ei rmative defenses not raised in the answer may not be raised unless those
defenses are otherwise asserted as soon as practicable. However, under Commission Rule
107,’ 29 C.F.R. 3 2200.107, the Commission may, on its own motion, waive any rule where
justice so requires. On remand, this case, for all practical purposes, will have not proceeded
significantly beyond the complaint and answer stage. Since we find nothing in the record to
indicate that the Secretary would be prejudiced by allowing Manti to pursue the defenses
raised in its petition for discretionary review, and in view of the circumstances of this case,
we find it appropriate to waive Commission Rule 34(b)(4) and allow Manti’s petition for
discretionary review to amend its answer of November 11, 1992.
The Commission is under an obligation to ensure that all parties to a controversy
have a full, fair and equal opportunity to be heard. It also recognizes that those employers
who are not trained in the law may require additional consideration of their circumstances.
The Commission’s rules, which have evolved over many years, are intended to enable its
proceedings to progress smoothly and efficiently and assure fairness to all parties. Although
the Commission’s rules are not inflexible, there are limits to how liberally the Commission

6 Rule 34(b)(4) provides:

8 2200.34 Employer contests.
. ..
6) A nswer.

& *The failure to raise an affirmative defense in the answer may result in the party being
prohibited from raising the defense at a later stage in the proceeding, unless the Judge finds
that the party has asserted the defense as soon as practicable.

7 Rule 107 provides:

6 2200.107 Special circumstances; waiver of rules.

In special-circumstances not contemplated by the provisions of these rules and for good cause
shown, the Commission or Judge may, upon application by any party or intervener or on
their own motion, after 3 working days notice to all parties and interveners, waive any rule
or make such orders as justice or the administration of the Act requires.

6

and its judges can interpret the rules to assist the pro se employer. See Imageries, 15 BNA
OSHC at 1547, 1992 CCH OSHD at, p. 40,131. Therefore, an employer that chooses to
represent itself should be aware that a lack of familiarity with our procedures could
jeopardize its ability to present its side of the case. For example, if Manti is to proceed, it
should expect to both make and grant requests for information to prepare for the hearing.
Manti must be ready to respond to various motions made by the Secretary, and engage in
direct and cross-examination of witnesses at the hearing in sufficient detail to establish its
defense. Therefore, we will forward to Manti a copy of the Commission’s rules of
procedure. We strongly urge Manti to become familiar with these rules.
Accordingly, the judge’s order dismissing Manti’s notice of contest is reversed and the
matter is remanded to the Chief Administrative Law Judge for reassignment’ to a new
judge with instructions to give Manti an opportunity to have a hearing in this matter.

Edwin G. Foulke, Jr.
Chairman

Velma Montoya
Commissioner
November 4, 1993
Dated:

8 Judge Gordon is no longer with the Commission.

-,
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419

FE (202)0o&5050
Frs(202) 6ow5050

.

Secretary of Labor,
Complainant,

v. Docket No. 92-2222

CAROLYN MANTI, d/b/a
MANTI HOMES,
Respondent.

NOTICE OF COMMISSION DECISION AND REMAND ORDER

The attached Decision and Order of Remand by the Occupational Safety and Health Review
Commission was issued on November 4, 1993. The case will be referred to the Office of the
Chief Administrative Law Judge for further action.

FOR THE COMMISSION

November 4, 1993
Date Ray H. Darling, Jr.
Executive Secretary

Docket No. 922222

NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.

• Counsel for Regional Trial Litigation
  Office of the Solicitor, U.S. DOL
  Room S4004
  200 Constitution Ave., N.W.
  Washington, D.C. 20210

Patricia Rodenhausen, Esq.
Regional Solicitor
‘Office of the Solicitor, U.S. DOL
201 Varick St., Room 707
New York, NY 10014

Carolyn Manti
Manti Homes
410 Columbia Avenue
Depew, New York 14043

Administrative Law Judge
Occupational Safety and Health
Review Commission
Room 420
McCormack Post Office and Courthouse
Boston, MA 02109-4501

UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1825 K STREET NW
4TH FLOOR
WASHINGTON. DC 20006-1246

FAX
corJl !202) 63-4OC~
FTS (292) 634-43@j

SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 92-2222
MANTI HOMES
Respondent. I

NOTICE OF DOCKETING
OF ADMINISTRATIVE LAW JUDGE’S DECISION

The Administrative Law Judge’s Report in the above referenced case w;I.*;
docketed with the Commission on January 14, 1993. The decision of the Judge
will become a final order of the Commission on February 16, 1993 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REV1 EW
Any such etition should be received b the Executive Secretary on or before
February s 1993 in order to ermit su r ficient time for its review. See
Commission Rule 91, 29 C.F. k . 2200.91.

All further pleadings or communications regarding this case shall be
addressed to:

Executive Secretary
Occupational Safety and Health
Review Commission
1825 K St. N.W., Room 401
Washington, D.C. 20006-1246

Petitioning parties shall also mail a copy to:

Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room 54004
200 Constitution Avenue, N.W.
Washington, D.C. 20210

If a Direction for Review is issued bv the Commission, then the Counsel for
Regional Trial Litigation will represent the Department of Labor. Any part\:
having questions about review rights mavd contact the Commission’s Executiv>
Secretary or call (202) 634-7950.

Date* . Januarv d 14 7 1993%-

DOCKET NO. 92-2222

NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 202 10

Patricia Rodenhausen, Esq.
Re ional Solicitor
Off&e of the Solicitor U.S. DOL
201 Varick, Room 707
New York, NY 10014

Carolyn Manti
Manta Homes
410 Columbia Avenue
Depew, NY 14043

Richard W. Gordon
Administrative Law Jud e
Occupational Safety an cf Health
Review Commission
McCormack Post Office and
Courthouse, Room 420
Boston, MA 02109 4501

00106880446:02

SOL:SDR:gr
34841
UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY & HEALTH REVIEW COMMISSION

LYNN MARTIN, Secretary of Labor/ l
.

United States Department of Labor,
l
. OSHRC Docket
Complainant,
.
. NO. 92-2222
v.

CAROLYN MANTI, d/b/a MANTI HOMES,
.
l

Respondent.

ORDER

Complainant's Motion to Dismiss Respondent's Notice of Contest

granted. Respondent's notice of contest is dismissed and the

citations and proposed penalties are affirmed.

DATED: 7, mT3
assachusetts

SO ORDERED:

Judge, OSHRC