OSHRC Official Seal
THE UNITED STATES OF AMERICA 

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 

 

THOMAS E. PEREZ, Secretary of Labor, 
United States Department of Labor, 

 

Complainant-Respondent, 

 

 

v. 

 

 OSHRC DOCKET NO.:11-0646 

COMTRAN GROUP, INC., 

 

Respondent-Petitioner. 

 



 

MEMORANDUM OPINION AND ORDER 

 

This matter comes before the Court on the Secretary of Labor’s (“Secretary”) summary 
judgment motion,1 which argues that “[t]he evidence already in the record, as well as the 
evidence developed by the Secretary on remand, establishes as a matter of law that the Citation 
should be affirmed.” (Pl.’s Mem. Supp. Summ. J. p. 1.) In response, ComTran Group, Inc. 
(“ComTran”) argues that the Secretary invites the Court to “rubber stamp” the findings of the 
former Commission Administrative Law Judge (“ALJ”) “without hearing the evidence that 
ComTran is relying on to further develop the record by explaining its safety program through 
additional live testimony including an additional witness.” (Resp’t’s Resp. Sec’y’s Mot. Summ. J 
p. 1.) The Court having considered the motion and response thereto, exhibits, and relevant law, 
and being otherwise fully informed, concludes that the Secretary’s summary judgment motion 
should be denied. 

1 The Secretary’s summary judgment motion was filed pursuant to Rule 56 of the Federal Rules of Civil Procedure, 
as provided for in Commission Rule 61 (“Motions for summary judgment are covered by Federal Rule of Civil 
Procedure 56.”). 29 C.F.R. § 2200.61. 

 

BACKGROUND 

This litigation is before the Court on remand from the Court of Appeals for the Eleventh 
Circuit “for further development of the record.” ComTran Group, Inc., v. DOL (ComTran I), 722 


F.3d 1304, 1318 (2013). In ComTran I, the Commission held that ComTran violated standards 
under the Occupational Safety and Health Act (“OSHA” or the “Act”), 29 U.S.C. §§ 651 et seq., 
when one of its supervisors was caught digging in a six-feet deep trench with an unprotected 
five-feet high “spoil pile” at the edge of the excavation. Id. at 1306. On appeal, the Eleventh 
Circuit held as a matter of first impression, and in accordance with decisions in the Third, 
Fourth, Fifth, and Tenth Circuits,2 that it is not “appropriate to impute a supervisor’s knowledge 
of his own violative conduct to his employer under the Act, thereby relieving the [Secretary] of 
[his] burden to prove the ‘knowledge’ element of [his] prima facie case.”3 (Emphasis in original.) 
Id. 

2 See Pennsylvania Power & Light Co. v. Occupational Safety & Health Review Comm’n, 737 F.2d 350 (3d 
Cir.1984); Ocean Electric Corp. v. Secretary of Labor, 594 F.2d 396 (4th Cir.1979); W.G. Yates & Sons 
Construction Co., Inc., 459 F.3d 604 (5th Cir. 2006); Mountain States Telephone & Telegraph Co. v. Occupational 
Safety & Health Review Comm’n, 623 F.2d 155 (10th Cir.1980). Against these decisions out of the Fourth, Tenth, 
Third, and Fifth Circuits is a decision from the Sixth Circuit, Danis-Shook Joint Venture XXV v. Secretary of Labor, 
319 F.3d 805 (6th Cir. 2003), that with relatively little analysis of the issue, held that “knowledge of a supervisor 
may be imputed to the employer, without drawing a distinction, as the other circuits have, between a supervisor’s 
knowledge of misconduct by subordinate employees and knowledge of his own misconduct. 

 

3 Insofar as the Eleventh Circuit had not yet weighed in and “directly addressed this issue,” and relying on 
Commission precedent, see e.g., Dover Elevator Co., Inc., 16 O.S.H. Cas. (BNA) 1281, at *7 (1993), the 
Commission held that the supervisor’s knowledge of his own malfeasances was imputable to ComTran. ComTran I 
at 1310. 

 

4 A prima facie case for the violation of an OSHA standard is made by the Secretary by showing (1) that the 
regulation applied; (2) that it was violated; (3) that an employee was exposed to the hazard that was created; and 
importantly, (4) that the employer “knowingly disregarded” the Act’s requirements. Id. at 1307. 

Thus, the Eleventh Circuit held for the first time that “the Secretary does not carry [his] 
burden and establish a prima facie case with respect to employer knowledge merely by 
demonstrating that a supervisor engaged in misconduct.”4 Id. at 1316. “A supervisor’s “rogue 
conduct” cannot be imputed to the employer in that situation.” Id. 

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]. 

 

(Brackets in original.) Id. The Eleventh Circuit held in ComTran I that “the Secretary made no 
effort to establish employer knowledge by the second method.” Id. at 1311. “[H]e called only 
one witness during [his] case-in-chief, Compliance Officer Spencer, and he provided no evidence 
as to ComTran’s safety program.” Id. “It is thus clear . . . that [h]e sought to establish employer 
knowledge in this case solely by utilizing the first method.” Id. 

In evaluating a motion for summary judgment, the Court must view the evidence in the 
light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 1572 
(1970). The movant has the burden of establishing that there are no genuine issues of material 
fact, which may be accomplished by demonstrating that the nonmoving party lacks evidence to 
support an essential element of its case. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). 
In responding to a motion for summary judgment, the nonmoving party “may not rest upon its 
mere allegations ... but ... must set forth specific facts showing that there is a genuine issue for 
trial.” Fed. R. Civ. P. 56(e); see Celotex, 477 U.S. at 324. For the reasons indicated infra, the 
Court concludes that genuine issues of material fact exist regarding the “employer knowledge” 
element of the Secretary’s case in chief and the adequacy of ComTran’s safety program. 

The Secretary asserts that: 

In this case, the [former] Commission ALJ has already considered a significant 
amount of evidence of Respondent’s safety program and, in the context of the 
employee misconduct defense, found that the safety program was lax. Under the 
law of the case doctrine, these factual findings should bind the court on remand, 
unless Respondent can present substantially different evidence on retrial. 

 

(Pl.’s Mem. Supp. Summ. J. p. 9.) The Court does not agree. 


Under the “law of the case” doctrine, generally, “an issue decided at one stage of a case is 
binding at later stages of the same case.” U.S. v. Harris, __ Fed.Appx. __, 2013 WL 6234124 
(11th Cir. 2013) (citation omitted). However, the doctrine can be overcome if, “since the prior 
decision, new and substantially different evidence is produced or there has been a change in the 
controlling authority,” or “the prior decision was clearly erroneous and would result in a 
manifest injustice.” (quotation omitted). This That & the Other Gift & Tobacco, Inc. v. Cobb 
Cnty., Ga., 439 F.3d 1275, 1283–84 (11th Cir. 2006). See also U.S. v. Krocka, 522 Fed.Appx. 
472 (11th Cir. 2013); U.S. v. Solomon, 513 Fed.Appx. 895 (11th Cir. 2013). In the present case, 
as indicated supra, since the prior Commission decision, there has been a change in the 
controlling authority. Therefore, the law of the case doctrine is inapplicable to this case. 

Furthermore, the Secretary’s assertion is a misreading of ComTran I. Not only do those 
factual findings not “bind the Court on remand,” ComTran I is clear that the findings made by 
the ALJ in discussing ComTran’s employee misconduct defense cannot be considered by this 
Court until the Secretary first meets his prima facie burden on knowledge. “[T]he employer bears 
the burden on affirmative defenses only if the Secretary proves a prima facie case first.” 
ComTran I at 1314. The Eleventh Circuit goes on to quote with approval New York State Elec. 
& Gas Corp. v. Sec’y of Labor, 88 F.3d 98, 108 (2d Cir. 1996): “The Secretary must first make 
out a prima facie case before the affirmative defense comes into play.” Id. The Eleventh Circuit 
agrees that the Secretary may establish the element of knowledge with evidence of lax safety 
standards, with the caveat, “But, the Secretary is the one who must provide such evidence.” 

Id. at 1318. 

 


 In the underlying decision, all of the evidence regarding ComTran’s safety program was 
adduced by ComTran itself, pursuant to its affirmative defense of employee misconduct. Under 
the employee misconduct defense, the employer has the burden of establishing, by a 
preponderance of the evidence, that it met the four elements of the defense (established work 
rule, communication of the work rule, steps to discover violations of the work rule, and 
enforcement of the work rule). However, ComTran I quoted with approval Ocean Electric Corp. 
v. Secretary of Labor, 594 F.2d 396, 401 (4th Cir.1979), which held that it is “error for the 
Commission to shift the burden onto” the employer in the absence of the Secretary’s proof that 
the supervisor’s misconduct was foreseeable since “no part” of the Secretary's prima facie 
burden can be “left to speculation or conjecture[.]” Id. at 1312. 

 It is the Secretary‘s burden to show that the “‘the employer could, under the 
circumstances of the case, foresee the unsafe conduct of the supervisor [that is, with evidence of 
lax safety standards].’ W.G. Yates & Sons Constr. Co., Inc. [v. OSHRC,] 459 F.3d [604,] 609 n. 
8[(5th Cir. 2006)].” (First set of brackets in the original). Id. at 1316. “Without such evidence, a 
supervisor’s conduct may be viewed as an isolated incident of unforeseeable or idiosyncratic 
behavior, see Ocean Elec. Corp., 594 F.2d at 401, which is insufficient, by itself, to impose 
liability under the Act. See W.G. Yates & Sons Constr. Co., Inc., 459 F.3d at 607 [.]” Id. 

 As indicated supra, the Eleventh Circuit remanded this case for further proceedings 
because the ALJ in the underlying case “relieved the Secretary of [his] burden to prove the 
essential ‘knowledge’ element of [his] prima facie case and prematurely shifted the burden to 
ComTran.” Id. The Secretary now urges the Court to find “as a matter of law,” the ALJ’s finding 
that ComTran’s safety program is inadequate to make the supervisor’s conduct unforeseeable 


“should be upheld as a matter of law” (Pl.’s Mem. Supp. Summ. J. p. 9.) To do so would be 
committing the very same error for which this case was remanded. Such a finding would once 
again prematurely shift the burden to ComTran. The Court declines to do so. 

The Court is not free to ignore the mandate and opinion of the Eleventh Circuit, but 
instead must proceed in conformity with the express or implied rulings of the appellate court, 
implementing both the letter and spirit of the mandate. See Friedman v. Mkt. St. Mortg. Corp., 
520 F.3d 1289, 1294 (11th Cir. 2008); Williams v. Commissioner, 1 F.3d 502, 503 (7th 
Cir.1993); United States v. Polland, 56 F.3d 776, 779 (7th Cir.1995); Key v. Sullivan, 925 F.2d 
1056, 1060 (7th Cir.1991). In implementing both the letter and spirit of the mandate, the Court 
concludes that on remand, since the Secretary failed to introduce any evidence of ComTran’s 
safety program --- inadequate or otherwise --- in ComTran I, he must make his prima facie case 
first regarding the “employer knowledge” element. Therefore, at this stage, prior evidence in the 
underlying decision and record rebutting the “employer knowledge” element of the case may not 
be considered, since “the Secretary is the one who must provide such evidence.” (Emphasis 
added.) ComTran I at 1318. 

“The Secretary’s alternative method to show employer knowledge and the unforeseeable 
employee misconduct affirmative defense ‘involve an identical issue: whether the employer had 
an adequate safety policy.’ New York State Elec. & Gas Corp. v. Secretary of Labor, 88 F.3d 98, 
106 (2d Cir. 1996). This does not lessen the Secretary’s prima facie burden, however. See id. at 
107 (stating ‘the fact that the employer might litigate a similar or even an identical issue as an 
affirmative defense does not logically remove an element from the complainant’s case’).” Id. at 
1308 n.3. 


Thus, viewing the evidence in the light most favorable to ComTran, the Court concludes 
that the Secretary has not met his burden as the movant of establishing that there are no genuine 
issues of material fact on the issue of the “employer knowledge” element of his case in chief and 
the adequacy of ComTran’s safety program. Therefore, the Court concludes that summary 
judgment is not proper. Accordingly, 

IT IS HEREBY ORDERED THAT the Secretary’s motion for summary judgment is 
DENIED. 

SO ORDERED THIS 21st day of March, 2014. 

/s/ 

JOHN B. GATTO, JUDGE 

 U.S. Occupational Safety and 

 Health Review Commission