16‐4128‐ag Triumph Constr. Corp. v. Secʹy of Labor
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 14th day of February, two thousand eighteen.
PRESENT: JOHN M. WALKER, JR., GERARD E. LYNCH, DENNY CHIN, Circuit Judges.
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TRIUMPH CONSTRUCTION CORPORATION, Petitioner‐Appellant,
v. 16‐4128‐ag
SECRETARY OF LABOR, Respondent‐Appellee.
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FOR PETITIONER‐APPELLANT: JASON R. FINKELSTEIN (Brian L. Gardner, on the brief), Cole Schotz, P.C., New York, New York.
FOR RESPONDENT‐APPELLEE: A. SCOTT HECKER, Attorney (Nicholas C. Geale, Acting Solicitor of Labor; Ann S.
Rosenthal, Associate Solicitor of Labor; Heather R. Phillips, Counsel for Appellate Litigation, on the brief), United States Department of Labor, Washington, D.C.
Petition for review of a final order of the Occupational Safety and Health
Review Commission.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the petition for review is DENIED.
Petitioner Triumph Construction Corporation (ʺTriumphʺ) petitions for
review of a September 7, 2016, decision and order of the administrative law judge (the
ʺALJʺ), which subsequently became a final order of the Occupational Safety and Health
Review Commission (the ʺCommissionʺ), affirming a citation issued to Triumph by the
Occupational Safety and Health Administration (ʺOSHAʺ) for a repeat violation of an
excavation standard and assessing a penalty of $25,000. Triumph Constr. Corp., 26 BNA
OSHC 1331 (No. 15‐0634, 2016), 2016 WL 6472834. Triumph contends that the
Commission improperly shifted the burden of proof to Triumph and improperly
classified the violation as a repeat violation. We assume the partiesʹ familiarity with the
underlying facts, procedural history, and issues on appeal.
On August 22, 2014, an employee of Triumph, the general contractor for a
public construction project to replace certain water mains, was injured in a cave‐in at an
excavation site in lower Manhattan. An OSHA officer inspected the excavation site that
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afternoon. On February 13, 2015, OSHA issued Triumph a citation for a repeat violation
of 29 C.F.R. § 1926.652(a)(1), which provides in relevant part:
Each employee in an excavation shall be protected from cave‐ ins by an adequate protective system designed in accordance with . . . this section except when:
(i) Excavations are made entirely in stable rock; or
(ii) Excavations are less than 5 feet (1.52m) in depth and examination of the ground by a competent person provides no indication of a potential cave‐in.
The citation was classified as a repeat violation based on two previous citations issued
to Triumph for violating the same excavation standard: the first in 2009 and the second
in 2011.
Triumph contested the February 13, 2015, citation, and a formal
evidentiary hearing was conducted before an ALJ (Coleman, A.L.J.) on January 5, 6, and
21, 2016. In a September 7, 2016, decision and order, the ALJ affirmed the citation for a
repeat violation, concluding that a preponderance of the evidence established that
Triumph violated the excavation standard and that the violation was a repeat one.1
Because the Commission did not grant discretionary review, the decision and order
became a final order of the Commission on October 20, 2016. Triumph petitions for
review.
1 The decision and order also vacated a second citation issued to Triumph by OSHA for a serious violation of 29 C.F.R. § 1926.651(j)(1). The second citation is not at issue in this appeal.
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We set aside an order by the Commission if it is ʺarbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with the law.ʺ 5 U.S.C. § 706(2)(A);
see Solis v. Loretto‐Oswego Residential Health Care Facility, 692 F.3d 65, 73 (2d Cir. 2012).
We uphold factual findings if they are ʺsupported by substantial evidence on the record
considered as a whole.ʺ 29 U.S.C. § 660(a); see Solis, 692 F.3d at 73. We review legal
conclusions de novo, deferring as appropriate to the Secretaryʹs reasonable interpretation
of the Occupational Health and Safety Act (the ʺActʺ). Solis, 692 F.3d at 73.
I. Burden of Proof
First, Triumph contends that the Commission improperly shifted the
burden of proof to Triumph by drawing an adverse inference from Triumphʹs failure to
produce a particular witness ‐‐ site foreman Augustin Formoso ‐‐ during the hearing.
Although the Secretary bears the burden of proving an OSHA violation by
a preponderance of the evidence, see New York State Elec. & Gas Corp. v. Secʹy of Labor, 88
F.3d 98, 105, 107 (2d Cir. 1996), the ʺparty claiming the benefit of such an exception
must demonstrate its applicability,ʺ New York Univ. Med. Ctr. v. N.L.R.B., 156 F.3d 405,
413 (2d Cir. 1998). The excavation standard at 29 C.F.R. § 1926.652(a)(1) ʺapplies to any
excavation, unless the employer shows that the excavation meets one of two
exceptions.ʺ Bardav, Inc., 24 BNA OSHC 2105 (No. 10‐1055, 2014), 2014 WL 5025977, at
*4 (emphasis original). One of the two exceptions is relevant here: the exception for
excavations less than five feet deep. 29 C.F.R. § 1926.652(a)(1)(ii).
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We conclude that the ALJ did not impermissibly shift the burden of proof.
First, the ALJ properly placed the burden of proof on Triumph to demonstrate that its
site fell within the exception for excavations less than five feet deep under 29 C.F.R.
§ 1926.652(a)(1)(ii). It was in the context of Triumphʹs argument that ʺthe area in the
excavation where [the injured worker] was working was shallower than five feet,ʺ Sp.
App. 26, that the ALJ considered Triumphʹs failure to present Formosoʹs testimony. The
ALJ relied on the missing testimony as one of several factors to evaluate the credibility
of one of Triumphʹs testifying witnesses.2 Second, the depth of the excavation was not
an issue that turned on which party bore the burden of proof. The great weight of
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16‐4128‐ag Triumph Constr. Corp. v. Secʹy of Labor
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 14th day of February, two thousand eighteen.
PRESENT: JOHN M. WALKER, JR., GERARD E. LYNCH, DENNY CHIN, Circuit Judges.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x
TRIUMPH CONSTRUCTION CORPORATION, Petitioner‐Appellant,
v. 16‐4128‐ag
SECRETARY OF LABOR, Respondent‐Appellee.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x
FOR PETITIONER‐APPELLANT: JASON R. FINKELSTEIN (Brian L. Gardner, on the brief), Cole Schotz, P.C., New York, New York.
FOR RESPONDENT‐APPELLEE: A. SCOTT HECKER, Attorney (Nicholas C. Geale, Acting Solicitor of Labor; Ann S.
Rosenthal, Associate Solicitor of Labor; Heather R. Phillips, Counsel for Appellate Litigation, on the brief), United States Department of Labor, Washington, D.C.
Petition for review of a final order of the Occupational Safety and Health
Review Commission.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the petition for review is DENIED.
Petitioner Triumph Construction Corporation (ʺTriumphʺ) petitions for
review of a September 7, 2016, decision and order of the administrative law judge (the
ʺALJʺ), which subsequently became a final order of the Occupational Safety and Health
Review Commission (the ʺCommissionʺ), affirming a citation issued to Triumph by the
Occupational Safety and Health Administration (ʺOSHAʺ) for a repeat violation of an
excavation standard and assessing a penalty of $25,000. Triumph Constr. Corp., 26 BNA
OSHC 1331 (No. 15‐0634, 2016), 2016 WL 6472834. Triumph contends that the
Commission improperly shifted the burden of proof to Triumph and improperly
classified the violation as a repeat violation. We assume the partiesʹ familiarity with the
underlying facts, procedural history, and issues on appeal.
On August 22, 2014, an employee of Triumph, the general contractor for a
public construction project to replace certain water mains, was injured in a cave‐in at an
excavation site in lower Manhattan. An OSHA officer inspected the excavation site that
‐ 2 ‐
afternoon. On February 13, 2015, OSHA issued Triumph a citation for a repeat violation
of 29 C.F.R. § 1926.652(a)(1), which provides in relevant part:
Each employee in an excavation shall be protected from cave‐ ins by an adequate protective system designed in accordance with . . . this section except when:
(i) Excavations are made entirely in stable rock; or
(ii) Excavations are less than 5 feet (1.52m) in depth and examination of the ground by a competent person provides no indication of a potential cave‐in.
The citation was classified as a repeat violation based on two previous citations issued
to Triumph for violating the same excavation standard: the first in 2009 and the second
in 2011.
Triumph contested the February 13, 2015, citation, and a formal
evidentiary hearing was conducted before an ALJ (Coleman, A.L.J.) on January 5, 6, and
21, 2016. In a September 7, 2016, decision and order, the ALJ affirmed the citation for a
repeat violation, concluding that a preponderance of the evidence established that
Triumph violated the excavation standard and that the violation was a repeat one.1
Because the Commission did not grant discretionary review, the decision and order
became a final order of the Commission on October 20, 2016. Triumph petitions for
review.
1 The decision and order also vacated a second citation issued to Triumph by OSHA for a serious violation of 29 C.F.R. § 1926.651(j)(1). The second citation is not at issue in this appeal.
‐ 3 ‐
We set aside an order by the Commission if it is ʺarbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with the law.ʺ 5 U.S.C. § 706(2)(A);
see Solis v. Loretto‐Oswego Residential Health Care Facility, 692 F.3d 65, 73 (2d Cir. 2012).
We uphold factual findings if they are ʺsupported by substantial evidence on the record
considered as a whole.ʺ 29 U.S.C. § 660(a); see Solis, 692 F.3d at 73. We review legal
conclusions de novo, deferring as appropriate to the Secretaryʹs reasonable interpretation
of the Occupational Health and Safety Act (the ʺActʺ). Solis, 692 F.3d at 73.
I. Burden of Proof
First, Triumph contends that the Commission improperly shifted the
burden of proof to Triumph by drawing an adverse inference from Triumphʹs failure to
produce a particular witness ‐‐ site foreman Augustin Formoso ‐‐ during the hearing.
Although the Secretary bears the burden of proving an OSHA violation by
a preponderance of the evidence, see New York State Elec. & Gas Corp. v. Secʹy of Labor, 88
F.3d 98, 105, 107 (2d Cir. 1996), the ʺparty claiming the benefit of such an exception
must demonstrate its applicability,ʺ New York Univ. Med. Ctr. v. N.L.R.B., 156 F.3d 405,
413 (2d Cir. 1998). The excavation standard at 29 C.F.R. § 1926.652(a)(1) ʺapplies to any
excavation, unless the employer shows that the excavation meets one of two
exceptions.ʺ Bardav, Inc., 24 BNA OSHC 2105 (No. 10‐1055, 2014), 2014 WL 5025977, at
*4 (emphasis original). One of the two exceptions is relevant here: the exception for
excavations less than five feet deep. 29 C.F.R. § 1926.652(a)(1)(ii).
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We conclude that the ALJ did not impermissibly shift the burden of proof.
First, the ALJ properly placed the burden of proof on Triumph to demonstrate that its
site fell within the exception for excavations less than five feet deep under 29 C.F.R.
§ 1926.652(a)(1)(ii). It was in the context of Triumphʹs argument that ʺthe area in the
excavation where [the injured worker] was working was shallower than five feet,ʺ Sp.
App. 26, that the ALJ considered Triumphʹs failure to present Formosoʹs testimony. The
ALJ relied on the missing testimony as one of several factors to evaluate the credibility
of one of Triumphʹs testifying witnesses.2 Second, the depth of the excavation was not
an issue that turned on which party bore the burden of proof. The great weight of
evidence established that the excavation was more than five feet deep, including
(1) empirical measurements taken by OSHA recording depths of 64, 68, and 70 inches at
the site, (2) the testimony of the injured worker, and (3) the testimony of the cityʹs
inspector.
II. Look Back Period
Next, Triumph notes that the Commission has a policy of using a three‐
year look back period to determine a repeat violation, and argues that here the
2 The ALJ properly placed the burden of proof on the Secretary to establish that Triumph violated 29 C.F.R. § 1926.652(a)(1) by demonstrating ʺby a preponderance of the evidence that: (1) the cited standard applies; (2) the terms of the standard were violated; (3) the employer knew, or with the exercise of reasonable diligence could have known, of the violative condition; and (4) one or more employees had access to the cited condition.ʺ Sp. App. 15; see New York State Elec. & Gas Corp., 88 F.3d at 105.
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Commission failed to provide a reasoned explanation for relying on previous violations
more than three years old.
The Act authorizes an enhanced civil penalty against any employer who
ʺrepeatedly violates . . . any standardʺ promulgated pursuant to the Act. 29 U.S.C.
§ 666(a).3 Neither the Act nor OSHAʹs implementing regulations prescribe any
temporal limits for determining whether a violation is repeated. In arguing that the
Commission arbitrarily departed from its own policy, Triumph contends that the OSHA
Field Operations Manual (ʺManualʺ), dated April 22, 2011, was in effect at the time of
the February 13, 2015, citation and dictates a three‐year look back period for assessing
repeat violations ‐‐ not the five‐year period relied on by the Commission.4 The relevant
language in the Manual provides as follows:
Although there are no statutory limitations on the length of time that a prior citation was issued as a basis for a repeated violation, the following policy shall generally be followed.
A citation will be issued as a repeated violation if . . . [t]he citation is issued within 3 years of the final order date of the
3 29 U.S.C. § 666(a) provides as follows:
Any employer who willfully or repeatedly violates the requirements of section 654 of this title, any standard, rule, or order promulgated pursuant to section 655 of this title, or regulations prescribed pursuant to this chapter may be assessed a civil penalty of not more than $70,000 for each violation, but not less than $5,000 for each willful violation.
4 The Commission increased its look back period from three years to five years, but the parties dispute whether the change took place in October 2010 or in October 2015 ‐‐ in other words, before or after Triumphʹs February 13, 2015, citation. We need not resolve that dispute, however, because we uphold the Commissionʹs decision even assuming, as Triumph argues, that the three‐year period applies.
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previous citation or within 3 years of the final abatement date, whichever is later.
Joint App. 653.
We conclude that the Commission did not abuse its discretion by relying
on previous violations more than three years old, because neither the Manual nor the
Commissionʹs precedent limits OSHA to a three‐year look back period. The Manual
explicitly notes that ʺthere are no statutory limitations on the length of time that a prior
citation was issued as a basis for a repeated violationʺ and describes a policy that ʺshall
generally be followed.ʺ Joint App. 653 (emphasis added). The Manual is ʺonly a guide
for OSHA personnel to promote efficiency and uniformity, [is] not binding on OSHA or
the Commission, and [does] not create any substantive rights for employers.ʺ
Hackensack Steel Corp., 20 BNA OSHC 1387 (No. 97‐0755, 2003), 2003 WL 22232017, at *7.
Moreover, the Commissionʹs precedents establish that ʺthe time between violations
does not bear on whether a violation is repeated.ʺ Hubbard Constr. Co., 24 BNA OSHC
1689 (No. 11‐3022, 2013), 2013 WL 1942202, at *11 (citation and internal quotation marks
omitted); accord J.C. Stucco & Stone, Inc., 26 BNA OSHC 1382 (Nos. 14‐1558 and 15‐0342,
2016), 2016 WL 7363932, at *19 & n.53 (upholding a repeat violation based on a previous
violation more than three years old, and noting that the three‐year limit for repeated
violations in the Manual ʺis not binding on the Commissionʺ); Active Oil Serv., Inc., 21
BNA OSHC 1184 (No. 00‐0553, 2005), 2005 WL 3934873, at *6.
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We have considered all of Triumphʹs arguments, and conclude that its
petition for review is without merit. Accordingly, we DENY the petition.
FOR THE COURT: Catherine OʹHagan Wolfe, Clerk
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