            Case: 15-10445    Date Filed: 12/14/2015   Page: 1 of 17


                                                           [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                               No. 15-10445
                           Non-Argument Calendar
                         ________________________

                             Agency No. 13-0821


FLORIDA LEMARK CORPORATION,

                                                                        Petitioner,

                                     versus

SECRETARY, U.S. DEPARTMENT OF LABOR,

                                                                       Respondent.
                         ________________________

                  Petition for Review of a Decision of the
             Occupational Safety and Health Review Commission
                        ________________________

                             (December 14, 2015)


Before TJOFLAT, WILSON, and ROSENBAUM, Circuit Judges.

PER CURIAM:

     This is a petition for review of a final order of the Occupational Safety and

Health Review Commission (“Commission”) finding that Petitioner Florida
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Lemark Corporation (“Florida Lemark”) violated its general duty to keep its

worksite free of hazards. On appeal, Florida Lemark contends that the finding of a

worksite hazard is not supported by substantial evidence in the record. Florida

Lemark also argues that it did not have constructive knowledge of the hazard,

pursuant to this Court’s decision in ComTran Group, Inc. v. U.S. Department of

Labor, 722 F.3d 1304 (11th Cir. 2013), because the hazard was created by

supervisor misconduct. After careful review, we deny the petition and affirm the

Commission’s decision.

                                           I.

      This case arises out of a tragic incident involving the partial collapse of a

nearly finished, six-story parking garage under construction on Miami Dade

College’s campus in Doral, Florida, on October 10, 2012. 1 The collapse killed

four employees of three different employers and injured several others, including a

Florida Lemark employee. It is undisputed that the collapse occurred due to

catastrophic structural failure of one of the garage’s supporting columns.

      The garage was a “precast” structure, meaning the structural pieces of the

building were manufactured off-site and erected on-site. After the foundation was

poured on-site, precast columns were moved into position on the foundation by a

      1
         See, e.g., 2 People Dead, 1 Person Remains Trapped in Garage Collapse at Miami
Dade College’s West Campus: Officials, NBC Miami, http://www.nbcmiami.com/news/Garage-
Collapse-Reported-at-Miami-Dade-Colleges-West-Campus-Officials-173509351.html      (last
visited Nov. 20, 2015).
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crane. The columns were placed on metal shims—small pieces of metal used to

adjust the elevation of the column—and then bolted to the foundation with four

anchor bolts through a metal base plate embedded in the bottom of the column.

This process left a two- to three-inch gap between the bottom of the column and

the foundation. The gap was then filled with grout cement, which has a greater

weight-bearing capacity than concrete. The shim stacks and anchor bolts could

support the weight of only the column itself, but were insufficient to support the

weight of the other structural pieces placed on the column later in construction. To

address this situation, the grout was to allow the column to transfer weight more

effectively to the foundation and to hold the subsequent loads. The engineering

drawings for the parking garage required grout to be placed no later than forty-

eight hours after each column was erected.

      The construction of the parking garage was managed by Ajax Building

Corp. (“Ajax”). Other companies were hired to complete specific parts of the

project, including (a) MEP Structural Engineering and Inspection, Inc. (“MEP”),

which inspected construction and ensured compliance with construction plans;

(b) Solar Erectors, Inc. (“Solar”), which erected the precast pieces at the

construction site; and (c) Florida Lemark, the petitioner in this case, which grouted

the various pieces that made up the structure.




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      Following the collapse of the parking garage, the Occupational Safety and

Health Administration (“OSHA”) investigated the worksite and then issued Florida

Lemark, among others, a citation alleging that it failed to keep its worksite free of

hazards. OSHA specifically alleged a “serious” violation of the “general duty

clause,” which requires employers to keep their worksites “free from recognized

hazards that are causing or are likely to cause death or serious physical harm” to

their employees. See 29 U.S.C. § 654(a)(1). According to the citation, Florida

Lemark exposed its employees to a recognized hazard—being struck by and caught

in between collapsing pre-cast structural members—by not performing grouting on

the bases of two columns, identified as columns “B3” and “A3.3.”

                                         II.

      The Occupational Safety and Health Act (the “Act”), 29 U.S.C. § 651, et

seq., gives the Secretary of Labor (“Secretary”), and by extension OSHA, the

authority to commence enforcement actions against employers to ensure

compliance with the Act. The overarching purpose of the Act is “to assure so far

as possible every working man and woman in the Nation safe and healthful

working conditions.” 29 U.S.C. § 651(b). Once OSHA issues a citation to an

employer, the employer may contest the citation and request a hearing before an

administrative law judge (“ALJ”). See generally ComTran Grp., Inc., 722 F.3d at

1306-07 (explaining the statutory and regulatory scheme under the Act).


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      Florida Lemark contested its citation, and an ALJ held an evidentiary

hearing to resolve the contest. The ALJ heard testimony from OSHA investigators

and various persons involved in the construction of the parking garage. Notably,

the ALJ heard from the following persons: Mohammad Ayub, who headed

OSHA’s investigation into the collapse; MEP’s director of engineering, who

testified about MEP’s inspection records; and Ajax’s director of risk management,

who indicated that an engineering firm hired by Ajax found evidence of grout

under column B3.

      Ayub, an expert in the field of forensic structural engineering, testified about

his investigation of the worksite for OSHA and his conclusions that columns B3

and A3.3 had not been grouted. He explained that the lack of grout under column

B3 led to that column’s failure and the partial collapse. He also stated that the lack

of grout under column A3.3 posed a similar risk of collapse, though it was not the

cause of the collapse in this case.

      MEP’s director of engineering testified about MEP’s inspection records,

which indicated that MEP inspected column B3 after it was erected on September

13, 2012. The report prepared for that inspection noted that grouting would be

inspected at a future date, which meant, according to the director, that grout was

“not present” at the time of the inspection. The director also testified that he could

find no inspection report showing that column B3 had been grouted.


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      Ajax’s director of risk management, Marc Reeves, testified that he was privy

to emails discussing the work of an engineering firm that Ajax had hired to

investigate the collapse. According to Reeves, the engineering firm’s testing had

indicated the presence of grout under column B3.              The firm purportedly

determined that the grout had a high water content, which potentially could have

caused the collapse. The purported engineering report was not introduced at the

hearing, nor did someone with the engineering firm testify about the report.

      Following the hearing, the ALJ issued a decision affirming the citation and

assessing a penalty of $6,300.00. The ALJ conducted a five-step analysis to

determine whether the Secretary had met its burden of showing a violation of the

general duty clause. First, the ALJ found that an activity or condition at the site

constituted a “hazard” under the Act. Crediting Ayub’s testimony, the ALJ found

that the Secretary had proved by a preponderance of the evidence that columns B3

and A3.3 had not been grouted. According to the ALJ, no other credible evidence

contradicted Ayub’s conclusions and testimony. For example, no witness testified

that either column had been grouted. The only evidence contradicting Ayub’s

testimony, the ALJ stated, was “unreliable hearsay statements testified to by Mr.

Reeves,” whose testimony the ALJ explicitly did not credit.

      Second, the ALJ found that the possibility of structural collapse due to the

failure to grout supporting columns was a condition known to be hazardous by


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Florida Lemark and the precast concrete construction industry. Third, the ALJ

found that the hazard was likely to cause death or serious physical harm. Florida

Lemark does not challenge the ALJ’s findings on these two points.

      Fourth, the ALJ found that feasible means existed to eliminate or materially

reduce the hazard.     Specifically, Florida Lemark could have followed the

construction plans and ensured that columns were grouted within forty-eight hours

of being erected. The ALJ found that Florida Lemark had no rule or procedure for

tracking or determining when grouting had been done. Rather, Florida Lemark

relied on others both to inform it both when grouting was necessary and if there

were any deficiencies in the grouting. The ALJ found that Florida Lemark could

have undertaken measures to ensure that inspections of its grouting were complete

before a column was loaded.

      Finally, the ALJ determined that Florida Lemark had constructive

knowledge of the condition, despite its lack of actual knowledge. In other words,

the ALJ concluded that Florida Lemark could have discovered the condition with

the exercise of due diligence. According to the ALJ, Florida Lemark knew which

elements were being erected each day and had supervisors on-site on a regular

basis, but Florida Lemark conducted no routine inspections of the work its

employees performed, nor did it keep track of the columns it had grouted. Instead,

Florida Lemark relied on Solar and MEP to conduct inspections. Thus, the ALJ


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found that Florida Lemark did not have an effective safety program because it

failed to take reasonable steps to monitor compliance with safety requirements.

       The ALJ also rejected Florida Lemark’s reliance on this Court’s decision in

ComTran Group. The ALJ found that ComTran Group concerned the special

circumstance of a hazard created by the unforeseeable misconduct of a supervisor,

whereas this was “the ordinary case” where the hazard was created by subordinate

employees and should have been discovered by a supervisor through the exercise

of due diligence.

       Florida Lemark sought discretionary review of the ALJ’s decision before the

Commission. See 29 C.F.R. § 2200.91(b). The Commission declined review, and

Florida Lemark now brings this petition for review.2 See 29 U.S.C. §§ 660(a) &

661(j).

                                               III.

       We review findings of fact by the ALJ to determine whether they are

supported by substantial evidence on the record as a whole. 3 29 U.S.C. § 660(a)


       2
          We asked the parties a jurisdictional question regarding the timeliness of Lemark’s
petition for review. See 29 U.S.C. § 660(a) (providing that a petition for review must be filed
with an appropriate court of appeals within sixty days of the date of the final order). Having
reviewed the parties’ responses to our question, we are satisfied that the petition was timely filed
and that we have jurisdiction over Lemark’s petition.
       3
         Because the Commission declined review, the ALJ’s order became the final order of the
Commission. See 29 U.S.C. § 661(j). Therefore, we review the ALJ’s decision under the same
standards as we would a decision issued by the Commission. See Safeway, Inc. v. Occupational
Safety & Health Review Comm’n, 382 F.3d 1189, 1192-93 (10th Cir. 2004).
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(“The findings of the Commission with respect to questions of fact, if supported by

substantial evidence on the record considered as a whole, shall be conclusive.”);

J.A.M. Builders, Inc. v. Herman, 233 F.3d 1350, 1352 (11th Cir. 2000).

“Substantial evidence is more than a scintilla and is such relevant evidence as a

reasonable person would accept as adequate to support a conclusion.           J.A.M.

Builders, Inc., 233 F.3d at 1352 (quoting Lewis v. Callahan, 125 F.3d 1436, 1440

(11th Cir. 1997)). “[T]he legal determinations of an agency like the [Commission]

are to be overturned only if they are ‘arbitrary, capricious, an abuse of discretion,

or otherwise not in accordance with [the] law.’” Fluor Daniel v. Occupational

Safety & Health Review Comm’n, 295 F.3d 1232, 1236 (11th Cir. 2002).

                                        IV.

      To show a violation of the general duty clause, the Secretary must prove five

things: (1) a hazard existed; (2) the employer or the industry recognized the hazard;

(3) the hazard was likely to cause death or serious physical harm to employees;

(4) a feasible means existed to mitigate or eliminate the hazard; and (5) employer

knowledge of the hazard. See Safeway, Inc. v. Occupational Safety & Health

Review Comm’n, 382 F.3d 1189, 1195 (10th Cir. 2004); cf. ComTran Grp., Inc.,

722 F.3d at 1307. Florida Lemark challenges only whether a hazard existed and, if

it did, whether it had knowledge of the hazard. We address each contention

separately.


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                                                 A.

      Substantial evidence supports the ALJ’s determination that a hazard existed

at the worksite because no grout was placed under columns B3 and A3.3. The ALJ

reasonably relied on Ayub’s testimony in concluding that columns B3 and A3.3

had not been grouted. Ayub was an expert in the field of forensic structural

engineering4 who had investigated approximately seventy-nine prior structural

collapses, including ten parking garages using precast concrete. Ayub explained

that he conducted a thorough, two-day search for any trace of grout at the base of

column B3 but could find none. Based on visual inspection and comparison with

other columns that had been grouted, he concluded that neither column B3 nor

A3.3 had been grouted. In crediting Ayub’s testimony, the ALJ also reasonably

relied on the lack of credible evidence contradicting it.                      No witness with

knowledge testified that those columns had been grouted, and no documentary

evidence, such as inspection reports, indicated that the columns had been grouted.

      Florida Lemark contends that Ayub’s testimony fails to establish the

existence of a hazard because he examined the column’s base after the site had

been cleaned up, he conducted no testing of the material under column B3, and he

“recanted” his testimony about the presence of grout under column B3 when




      4
          Forensic structural engineers investigate and determine the causes of structural failure.
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shown a pre-clean-up photograph of the bottom of the collapsed column. We

disagree.

      First, substantial evidence supports the ALJ’s determination that Ayub, as an

expert with considerable expertise, would have been able to make a visual

inspection to determine the presence of grout even after the clean-up. Ayub

testified without contradiction that he would have been able to see signs of grout

on the underside of the column base plates, which were still intact, despite the

clean-up, and without the need for testing. Ayub also explained that grout looks

different than precast concrete, that column B3 had been carefully hand-cleaned

with brush and broom, and that he compared columns A3.3 and B3 with other

columns that had been grouted.

      Second, Ayub did not “recant” his testimony regarding the absence of grout

under column B3, as Florida Lemark contends. During cross-examination by

Florida Lemark’s counsel, counsel presented Ayub with a photograph of the

bottom of column B3 before clean-up. Ayub acknowledged that he could not “rule

out the possibility” that darker material in the photograph was grout, but he then

clarified that he did not think it was grout, and at no point did he indicate that the

picture changed his conclusions regarding the lack of grout under column B3. In

sum, the ALJ permissibly relied on Ayub’s testimony as evidence of the lack of

grouting.


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       Florida Lemark also contends that the ALJ ignored or improperly discredited

other evidence indicating that grout was present under column B3. Again, we

disagree.    The ALJ gave good reasons for her decision to discredit Reeves’s

testimony that the engineering firm found the presence of grout, as it was based on

hearsay statements regarding an unreleased and unfinished report. Moreover, no

evidence was presented to the ALJ that substantiated the purported conclusion of

the report, such as documentation or live testimony from an engineer with the

firm. 5 In making her credibility determination, the ALJ also relied on Reeves’s

demeanor, finding that he was a “reluctant” witness. Consequently, substantial

evidence supports the ALJ’s decision to discredit Reeves’s testimony.

       In addition, evidence that no one at the construction site noticed or was

aware that column B3 had gone ungrouted does not compel an inference that grout

was present. Indeed, the fact that column A3.3 was not grouted—a finding Florida

Lemark does not challenge—supports the ALJ’s decision not to infer the presence

of grout from the fact that the lack of grouting went unnoticed for over twenty

days. Assuming it would have been permissible for the ALJ to find in Florida

Lemark’s favor on this point, there is sufficient evidence to support the ALJ’s




       5
         The fact that OSHA earlier was made aware of the same purported engineering report is
not significant because the record reflects that OSHA was never provided a copy of the report or
some other documentation to substantiate the report’s conclusions.
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contrary determination that grout was not present under column B3. See Fluor

Daniel, 295 F.3d at 1241.

      Finally, Florida Lemark makes a cursory challenge to the finding of a hazard

with respect to column A3.3, claiming that the load on the column was of “little

significance.” However, a “hazard” refers to the risk of injury as a result of the

condition, not the proximate cause of the accident in this case. See Safeway, Inc.,

382 F.3d at 1195 n.5. Here, Ayub testified that the risk of collapse is present once

workers start loading ungrouted columns and that the lack of grout under column

A3.3 posed “great risk of collapse.” And there is no dispute that column A3.3 had

been loaded or that collapsing columns posed a hazard to employees.           Thus,

although column A3.3 did not in fact collapse, substantial evidence supports the

ALJ’s finding that the lack of grout under column A3.3, like the lack of grout

under column B3, was a hazard.

      In sum, the ALJ’s decision to credit Ayub’s testimony is supported by

substantial evidence, and his testimony, in addition to other record evidence,

provides sufficient evidence to support the ALJ’s finding of a hazard due to the

lack of grouting under columns B3 and A3.3.

                                        B.

      The Act imposes liability on the employer for a serious violation “only if the

employer knew, or ‘with the exercise of reasonable diligence, [should have known]


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of the presence of the violation.’” W.G. Yates & Sons Construction Co., Inc. v.

Occupational Safety & Health Review Comm’n, 459 F.3d 604, 607 (5th Cir. 2006)

(quoting 29 U.S.C. § 666(k)).       Thus, the Secretary must show either that the

employer had actual knowledge or constructive knowledge of the violation.

ComTran Grp., Inc., 722 F.3d at 1307-08.          There is no evidence of actual

knowledge in this case. Therefore, the Secretary needed to show constructive

knowledge—that Florida Lemark could have discovered the hazard with the

exercise of reasonable diligence.

      We have identified two ways in which the Secretary can show constructive

knowledge. First, constructive knowledge may be shown “where the supervisor

may not have directly seen the subordinate’s misconduct, but he was in close

enough proximity that he should have.” Id. at 1308. Second, “the Secretary can

show knowledge based upon the employer’s failure to implement an adequate

safety program, with the rationale being that—in the absence of such a program—

the misconduct was reasonably foreseeable.” Id. (citation omitted). The employer

can avoid liability by showing that the violation was the result of “unpreventable or

unforeseeable employee misconduct.” Id.

      Here, substantial evidence supports the ALJ’s determination that Florida

Lemark had constructive knowledge of the hazard because it failed to take

reasonable steps to monitor compliance with safety requirements. See id.; N.Y.


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State Elec. & Gas Corp. v. Sec’y of Labor, 88 F.3d 98, 105-06 (2d Cir. 1996)

(“[C]onstructive knowledge may be predicated on an employer’s failure to

establish an adequate program to promote compliance with safety standards.”).

The record establishes that Florida Lemark knew which elements were being

erected each day but that it conducted no routine inspections of the work its

employees performed, nor did it kept track of the columns it had grouted or train

its employees what to do if a column went ungrouted. Nothing prevented Florida

Lemark from taking steps to ensure that grouting was inspected, and therefore

completed, before columns were loaded.             Consequently, substantial evidence

supports the ALJ’s determination that Florida Lemark failed to implement an

adequate safety program to ensure that grouting was performed before columns

were loaded.

       Florida Lemark’s reliance on ComTran Group is misplaced.6 ComTran

Group concerns when knowledge of a supervisor can be imputed to the employer

for purposes of establishing employer knowledge.              In the “ordinary case,” a

supervisor’s knowledge is imputed to the employer. ComTran Grp., Inc., 722 F.3d

at 1308 & n.2. However, the “ordinary case” is distinct from one where the

supervisor is the “actual malfeasant” who creates the hazard. Id. at 1308 n.2.


       6
        ComTran Group expressly did not concern proving “constructive employer knowledge
based on the employer’s inadequate safety program.” 722 F.3d at 1311. For that reason alone,
Lemark’s arguments are misguided.
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Recognizing that distinction, we held in ComTran Group that showing misconduct

by a supervisor alone is not sufficient to prove employer knowledge. Id. at 1316.

Rather, “employer knowledge must be established, not vicariously through the

violator’s knowledge, but by either the employer’s actual knowledge, or by its

constructive knowledge based on the fact that the employer could, under the

circumstances of the case, foresee the unsafe conduct of the supervisor [that is,

with evidence of lax safety standards].” Id. at 1316.

      Here, even assuming that the hazard was created by a Florida Lemark

supervisor’s failure to follow the erection guidelines, that unsafe conduct would

still have been reasonably foreseeable to Florida Lemark. As we have noted,

Florida Lemark had no rule or procedure in place for tracking or determining when

grouting had been done or ensuring that it had been inspected. As a result, the

supervisor’s failure to track what grouting had been performed and whether it had

been inspected followed naturally from the lack of rule or procedure. Therefore,

constructive knowledge was established because the alleged misconduct was

reasonably foreseeable. See id. at 1308 & n.3.

      In its reply brief, Florida Lemark argues that the measures identified by the

ALJ are not reasonable means to monitor compliance with safety standards. We

decline to consider this belated argument because it was raised for the first time in

Florida Lemark’s reply brief. See United States v. Levy, 379 F.3d 1241, 1244 (11th


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Cir. 2004) (“[T]his Court . . . repeatedly has refused to consider issues raised for

the first time in an appellant’s reply brief.”).

                                                 V.

      Overall, substantial evidence supports the ALJ’s determinations that a

hazard existed due to Florida Lemark’s failure to grout columns B3 and A3.3 and

that Florida Lemark had constructive knowledge of the hazard as a result of its lack

of an adequate program to monitor compliance with safety requirements.

Therefore, we DENY Florida Lemark’s petition for review and AFFIRM the

ALJ’s decision finding that Florida Lemark committed a serious violation of the

general duty clause, 29 U.S.C. § 654(a)(1).




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