                Case: 19-13359   Date Filed: 05/19/2020    Page: 1 of 10



                                                            [DO NOT PUBLISH]



                 IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 19-13359
                             Non-Argument Calendar
                           ________________________

                                 Agency No. 17-0819



EDWIN TAYLOR CORPORATON,

                                                    Petitioner,

versus

U.S. DEPARTMENT OF LABOR,

                                                    Respondent.

                           ________________________

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

                                   (May 19, 2020)

Before JORDAN, GRANT, and LUCK, Circuit Judges.

PER CURIAM:

         The employee of a subcontractor for Edwin Taylor Corporation fell to his
              Case: 19-13359     Date Filed: 05/19/2020     Page: 2 of 10



death at a residential construction site. After receiving notice of the accident, the

Occupational Safety and Health Administration opened an investigation into the

company, which had general supervisory authority over the worksite. Following the

investigation, the Secretary of Labor cited Edwin Taylor for three willful violations

of 29 C.F.R. § 1926.501(b)(13) and assessed a $126,749 penalty. Edwin Taylor

contested the citation before the Occupational Safety and Health Review

Commission, which affirmed the violation but reduced the penalty to $101,399.20.

      On appeal, Edwin Taylor does not challenge the applicability of the fall

protection standard. Nor does it challenge the Secretary’s prima facie case against

it. But it does contest the Commission’s conclusion that it willfully violated the fall

protection regulations. Specifically, Edwin Taylor asserts that there was insufficient

evidence for the Commission’s Administrative Law Judge to conclude that it

violated the fall protection regulations. For the October 22, 2016 violation, Edwin

Taylor argues that the ALJ did not apply the correct legal standard in concluding

that a single act of climbing a ladder without fall protection constitutes a willful

violation of OSHA regulations. For the two November 3, 2016 violations, Edwin

Taylor makes the same contention and further challenges the ALJ’s conclusion that

it willfully violated the pertinent regulations by failing to ensure that its

subcontractors installed fall protection at the worksite.

      For the following reasons, we find no grounds for reversal and affirm the


                                           2
              Case: 19-13359    Date Filed: 05/19/2020   Page: 3 of 10



Commission’s decision.

                                          I

      Edwin Taylor was retained to construct shells for five three-story

condominiums. Paul Barros and Bronson Ostrander were superintendents of the

build site, and Jay Zimmerman managed them. David Patton, one of the owners of

Edwin Taylor, regularly received photographs and messages regarding the work at

the construction site. With this supervisory authority, the Edwin Taylor employees

were responsible for enforcing safety protocols and correcting any potential health

and safety violations at the worksite. As part of the job, Edwin Taylor subcontracted

Adelo & Fernanda Construction Inc. for block and framing work. In turn, Adelo

then subcontracted Francisco Sanchez Hernandez to assist with the framing.

      During construction, workers built the condominium frames higher than six

feet without guardrails. On November 3, 2016, one of Mr. Hernandez’s workers fell

22 feet through an unguarded opening and died. Following the worker’s death,

OSHA opened an investigation. After the incident, guardrails were installed in most

areas of the worksite, but a compliance officer nevertheless found a lack of fall

protection one week later.

      After the investigation concluded, the Secretary of Labor cited Edwin Taylor

for violating 29 C.F.R. § 1926.501(b)(13) on three occasions. The Secretary

concluded that on October 22, 2016, Edwin Taylor exposed employees to an 11-foot


                                         3
              Case: 19-13359     Date Filed: 05/19/2020   Page: 4 of 10



fall hazard through an unguarded stairwell opening and open-sided floors. Mr.

Barros took photographs of the worksite progress that day. The Secretary also

concluded that on November 3, 2016, Edwin Taylor exposed employees to a 22-foot

fall hazard on the third level through an unguarded stairwell and open side floors

during floor decking—when the subcontractor’s employee fell—and an 11-foot fall

hazard on the second level. Mr. Barros again took pictures of the worksite after the

accident. The Secretary then assessed a $126,749 penalty for the three instances of

inadequate fall protection. Edwin Taylor contested the citation to the Occupational

Safety and Health Review Commission. An ALJ affirmed the citation but reduced

the penalty by 20% to $101,339.20.

                                         II

      Commission decisions “are entitled to considerable deference on appellate

review.” Fluor Daniel v. Occupation Safety & Health Rev. Comm’n, 295 F.3d 1232,

1236 (11th Cir. 2002). On review, we must uphold the Commission’s findings “if

they are supported by substantial evidence on the record considered as a whole.”

ComTran Grp., Inc. v. U.S. Dep’t of Labor, 722 F.3d 1304, 1307 (11th Cir. 2013)

(internal alterations and quotation marks omitted). We have held that “[s]ubstantial

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. v.

Herman, 233 F.3d 1350, 1352 (11th Cir. 2000).             We will also uphold the


                                          4
              Case: 19-13359     Date Filed: 05/19/2020    Page: 5 of 10



Commission’s legal conclusions so long as they are not “arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with [the] law.” Fluor, 295 F.3d

at 1236 (quoting 5 U.S.C. § 706(2)(A)).

                                          III

      Commission decisions “are bound to follow the law of the circuit to which the

case would most likely be appealed.” ComTran, 722 F.3d at 1307. Under the law

of our circuit, the Commission’s “finding of willfulness is a finding of fact,” while

“the Commission’s definition or application of the term is a matter of law.” Fluor,

295 F.3d at 1236 (citations omitted). We have held that a willful violation of an

OSHA standard is shown by “an intentional disregard of, or plain indifference to,

OSHA requirements.” Reich v. Trinity Indus., Inc., 16 F.3d 1149, 1152 (11th Cir.

1994) (quoting Ga. Elec. Co. v. Marshall, 595 F.2d 309, 317 (5th Cir. 1979)).

      Edwin Taylor argues that the record lacks evidence of willfulness and

foreseeability to support the ALJ’s finding. To bolster its argument on willfulness,

Edwin Taylor contends that an employer’s familiarity with a standard does not prove

willfulness. Nor does it show that an employer was aware of violative conduct.

Because discussions show that it instructed Mr. Sanchez to install guardrails, Edwin

Taylor contends that it could not have had awareness of the violative act when the

subcontractor’s worker died. In sum, Edwin Taylor maintains that its actions do not

evince an intentional disregard or plain indifference necessary for a willful violation


                                          5
              Case: 19-13359    Date Filed: 05/19/2020   Page: 6 of 10



and that the admissions made before the ALJ are better characterized as a lack of

diligence.

      In addition, Edwin Taylor asserts that the earlier conduct of a supervisor

engaging in dangerous activity was not a violation because his impermissible

conduct is not imputable to the employer. Mr. Barros’ conduct was not foreseeable

because Edwin Taylor hired him three days before the October 22, 2016, violation;

the alleged conduct was on his day off; he was a probationary employee; his training

was unrelated to that project on his off day; no one from Edwin Taylor instructed

him to go to the jobsite; and no one at Edwin Taylor knew he unilaterally chose to

visit the job site. Based on these factors, Edwin Taylor asserts that the ALJ should

not have imputed Mr. Barros’ conduct to it, and the ALJ’s decision was not

supported by the substantial evidence.

      We disagree.

       “[T]he definition of willful in this circuit is, in its simplest form, an

intentional disregard of, or plain indifference to, OSHA requirements.” Fluor

Daniel, 295 F.3d at 1239 (internal quotation and citation omitted). To establish a

willful violation,

      proof must be adduced either that (1) “[the] employer knew of an
      applicable standard or provision prohibiting the conduct or condition
      and consciously disregarded the standard,” or (2) that, if the employer
      did not know of an applicable standard or provision’s requirements, it
      exhibited such “reckless disregard for employee safety or the
      requirements of the law generally that one can infer that . . . the
                                         6
              Case: 19-13359     Date Filed: 05/19/2020   Page: 7 of 10



      employer would not have cared that the conduct or conditions violated
      [the standard].”

J.A.M. Builders, Inc. v. Herman, 233 F.3d 1350, 1355 (11th Cir. 2000)

(quoting Sec’y of Labor v. Williams Enters., Inc., 13 O.S.H. Cas. (BNA) 1249, 1257

(OSHRC 1987)). In her order, the ALJ stated that “[a] willful violation is one

‘committed with intentional, knowing or voluntary disregard for the requirement of

the Act or with plain indifference to employee safety.’” D.E. 36 at 16 (citation

omitted). Because the ALJ’s definition of willful conduct aligns with our own, we

uphold it here.

      Having determined that the ALJ applied the proper legal standard, we next

consider whether substantial evidence supports her conclusions. After a thorough

consideration of the record, and for all the reasons discussed in the ALJ’s decision,

we hold that substantial evidence supports the ALJ’s classification of the violation

here as willful.

      According to the stipulated facts, Edwin Taylor “knew that OSHA requires

that employees on a walking/working surface with an unprotected side or edge which

is six feet or more above a lower level be protected from falling by the use of a

guardrail systems, safety net systems, or personal fall arrest systems.” D.E. 16 at 9.

Edwin Taylor admitted that it “had general supervisory authority” and “that OSHA’s

construction standards, 29 C.F.R. § 1926, et seq., appl[ies] to its operations at the

worksite.” Id. at 8–9. Edwin Taylor further admitted that “[Mr.] Barros was capable
                                          7
              Case: 19-13359     Date Filed: 05/19/2020       Page: 8 of 10



of identifying existing and predictable hazards at the worksite.” Id. at 8. Edwin

Taylor both “had the authority to correct safety and health violations on the

worksite” and “had the authority to require [Mr.] Sanchez Hernandez and his

workers to correct safety and health violations on the worksite.” Id. at 9. Finally,

Edwin Taylor admits that it “should have done more than it did to prevent and detect

the fall protection violations on the worksite.” Id. at 10.

      For the October 22, 2016, determination of willfulness, testimony from Edwin

Taylor employees bolsters the stipulated facts. For example, Mr. Barros—the

supervisor of the worksite—knew that fall protection was needed for a build above

six feet but did not require guardrails to be placed at the floor openings and edges of

the decking. See Admin. R., C-22 at 1–2, 4. Nevertheless, he scaled to the second

level of the worksite to take a photograph of the progress, where he “did not have

any fall protection.” Id. at 5. According to Mr. Zimmerman—Vice President of

Edwin Taylor and Mr. Barros’ supervisor—Mr. Barros was “supposed to tell them

to put railing up if they refuse[d] he [was] suppose[d] to tell them to leave. He knows

its OSHA rules.” Admin. R., C-24 at 1. And Mr. Patton—one of Edwin Taylor’s

owners—said that he and Mr. Zimmerman “did notice the unprotected floor

openings in the photos taken on 10-22-2016 and 10-28-2016.” Admin. R., C-26 at

2.

      With respect to the November 3, 2016, Edwin Taylor made two additional


                                           8
              Case: 19-13359    Date Filed: 05/19/2020   Page: 9 of 10



stipulations. First, on October 28, 2016, “Mr. Barros knew that guardrails or other

appropriate fall protection had not been installed on the sides and edges of the

walking/working surfaces of the second level of the townhome unit under

construction.” D.E. 16 at 10. Second, on November 3, 2016, “employees of

Francisco Sanchez Hernandez working on the third level of the townhome units were

not protected from falling off the unprotected sides and edges of the

walking/working surfaces by guardrails or other appropriate fall protection.” Id. at

9–10

       Given the quantum of evidence, the ALJ could reasonably conclude that

Edwin Taylor willfully violated the fall protection regulations. In making her

decision, the ALJ relied on testimony from Edwin Taylor employees showing that

they knew of the fall protection regulations required for greater than six-foot fall

risks, yet disregarded that risk at its worksite. Record evidence shows that Mr.

Barros, Mr. Ostrander, Mr. Zimmerman, and Mr. Patton were aware of the risk posed

by working at the condominium developments without fall protection. Those Edwin

Taylor supervisors knew that workers would be working on second and third stories

of the condominiums and that they would be exposed to floor openings.

Notwithstanding this knowledge of the fall hazard and worker exposure above six

feet on the second and third levels, Edwin Taylor supervisors did nothing to prevent

an accidental fall beyond cursory discussions with Mr. Sanchez about the need for


                                         9
               Case: 19-13359        Date Filed: 05/19/2020      Page: 10 of 10



fall protection. Edwin Taylor did not instruct anyone at the worksite to install

guardrails. Nor did it supply guardrail equipment to the worksite crew—even

though the needed equipment was at the job site.

       In short, after a close review of the administrative record and the parties’

briefs, we agree that substantial evidence supports the Commission’s conclusion that

Edwin Taylor committed three willful OSHA violations.1

                                               IV

       Having found no grounds for reversal, we affirm the Commission’s

classification of Edwin Taylor’s violation as willful, and we consequently affirm the

resulting $101,399.20 penalty.

       AFFIRMED.




1
  Edwin Taylor also argues that the ALJ abused its discretion by denying its request for a post-
hearing deposition of Mack Darr about the installation of guardrails. We have reviewed the record
and find that Edwin Taylor has failed show the requisite “positive showing of prejudice” needed
to support a finding that the ALJ abused her discretion. See Daylight Grocery Co. v. NLRB, 678
F.2d 905, 910 (11th Cir. 1982). We therefore conclude that substantial evidence supports the ALJ's
decision.
                                               10
