THIS CASE IS NOT A FINAL ORDER OF THE REVIEW COMMISSION AS IT IS PENDING COMMISSION REVIEW

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20th Street, N.W., Ninth Floor

Washington, DC 20036-3457

Appearances:  Kate S. O’Scannlain, Solicitor of Labor

    Oscar L. Hampton, III, Regional Solicitor

    Jennifer L. Gold, Attorney

    U.S. Department of Labor, Office of the Solicitor, Philadelphia, Pennsylvania

    For the Complainant

    Miriam Dole, Attorney

    U.S. Postal Service, Eastern Area Law Office, Philadelphia, Pennsylvania

    For the Respondent

Before:    Keith E. Bell

    Administrative Law Judge

DECISION AND ORDER

  This case concerns a claim of alleged discrimination for reporting work-related injuries. It is brought under a new anti-discrimination regulation recently promulgated and published on May 12, 2016, under authority from the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 (OSH Act). Around May and June 2017, two postal workers for the Mt. Oliver branch of the United States Postal Service (USPS or Respondent) in Pittsburgh, Pennsylvania reported their work-related injuries to their management. After an internal pre-disciplinary investigation, the USPS suspended them with pay for alleged violations of USPS safety rules. Shortly thereafter, a union steward filed whistleblower complaints on their behalf with the Occupational Safety and Health Administration (OSHA), which commenced two separate, parallel investigations: (1) pursuant to § 11(c) of the OSH Act1, and (2) pursuant to the recently promulgated anti-discrimination regulation under part 1904 (“Recording and Reporting Occupational Injuries and Illnesses”) subpart D (“Other OSHA Injury and Illness Recordkeeping Requirements”) at 29 C.F.R. § 1904.35(b)(1)(iv).2

A few weeks after the whistleblower complaint was filed, the USPS rescinded both disciplinary suspensions and expunged the discipline from the records of both injured postal workers. (Exs. JX-7 at 1, JX-14 at 1.) Less than two weeks later, OSHA closed out the § 11(c) investigation. However, the other investigation, under § 1904.35(b)(1)(iv), continued. On November 28, 2017, OSHA issued a Citation to USPS alleging an other-than-serious violation of § 1904.35(b)(1)(iv) and proposing a $5,432 penalty. The Citation required the USPS to abate the alleged violation by December 8, 2017. Nothing in the Citation specified how the USPS was to achieve abatement.

Respondent received the Citation on November 30, 2017 and filed a late notice of contest (LNOC) on February 2, 2018, bringing this matter before the Occupational Safety and Health Review Commission (Commission). A hearing was held in Pittsburgh, Pennsylvania on December 11 and 12, 2018. Both parties filed post-hearing briefs on March 21, 2019. On February 25, 2020, the undersigned issued an Order Directing the Parties to File Supplemental Briefs by March 13, 2020 to address the sole issue of Respondent’s LNOC. The Secretary filed his supplemental brief on March 5, 2020, Respondent filed its supplemental brief on March 13, 2020. As discussed below, the Citation and proposed penalty are VACATED.

PART I: LATE NOTICE OF CONTEST

JURISDICTION AND COVERAGE

The Commission gains jurisdiction to adjudicate an alleged violation of the OSH Act by an employer if the employer is engaged in business affecting commerce within the meaning of section 3(5) of the OSH Act, and, if the employer timely contests the citation. 29 U.S.C. §§ 652(5), 659(c). The record establishes that Respondent, as of the date of the alleged violation, was an employer engaged in business affecting commerce within the meaning of section 3(5) of the OSH Act. 29 U.S.C. § 652(5). See Amended Complaint & Answer at ¶¶ 4.

The record also reveals that Respondent filed an untimely notice of contest (NOC). The OSH Act allows 15 working days “from the receipt” of the citation by the employer for the employer to notify the Secretary of its intent to contest the citation. 29 U.S.C. § 659(a). At that point, if an employer fails to file a timely NOC, “the citation and the assessment, as proposed, shall be deemed a final order of the Commission and not subject to review by any court or agency.” 29 U.S.C. § 659(a).

The Citation for this matter was issued on November 28, 2017, sent by certified mail, and signed as received by “Daniel Sowchah” at the USPS at 140 Brownsville Road, Pittsburgh, PA 15210. See Citation Certified Receipt. Next chronologically in the record is a “Notice of Contest” addressed to OSHA Area Director Christopher Robinson that is dated February 2, 2018. In this NOC, Respondent states that “[t]he documents were not received by the Safety and Law Departments until February 2, 2018.” The next filing in the record is the Secretary’s Complaint, in which the Secretary states the following in pertinent part:

(Complaint and Amended Complaint at ¶¶ 1-3.)

In response, Respondent filed in its Answer the following:

(Answer at ¶¶ 1-3.) Respondent also raised as an affirmative defense, “[t]he Citation and Notification of Penalty was not properly served on Respondent.” (Answer at 4.)

The record is silent regarding this NOC until February 25, 2020, when the undersigned issued an Order Directing the Parties to File Supplemental Briefs to address the sole issue of Respondent’s Late NOC. See Taj Mahal Contracting, 20 BNA OSHC 2020, 2023 (No. 03-1088, 2004) (“[A] court may sua sponte raise the issue of lack of jurisdiction (and indeed is under an independent obligation to do so) when the matter comes to the attention of the court during the course of proceedings”); Stone Container Corp., 9 BNA OSHC, 1832, 1833 (No. 15116, 1981) (“As a jurisdictional question, the issue of the timeliness of a notice of contest can be raised by a party or by the Commission, sua sponte, at any time during the proceedings”) citing Fed. R. Civ. P. 12(h)(3)(“Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.”). Based on the date the Citation package was received by the Respondent, Respondent’s NOC should have been filed by December 21, 2017. Respondent’s NOC was not filed under February 2, 2018, approximately 6 weeks late.

The Secretary filed a brief on this issue on March 5, 2020, and Respondent filed a brief on March 13, 2020. Both parties agree that Respondent’s NOC was untimely. (Sec’y Supp. Br. at 2; Resp’t Supp. Br. at 6.) Accordingly, the Citation, as issued, is deemed a final order of the Commission by operation of law. 29 U.S.C. § 659(a).

Relief from a final order of the Commission may be granted under Federal Rule of Civil Procedure 60(b).3 Nw Conduit Corp., 18 BNA OSHC 1948, 1949 (No. 97-851, 1999); see also George Harms Constr. Co., Inc., v. Chao, 371 F.3d 156 (3d Cir. 2004); J.I. Hass Co., Inc. v. OSHRC, 648 F.2d 190 (3d Cir. 1981) (holding that the Commission has residual authority over uncontested citations such that it may, in the exercise of its authority, grant relief under Rule 60(b)). The Secretary argues that Respondent’s LNOC “was the functional equivalent of a petition for relief under Rule 60(b).” (Sec’y Br. at 2.) In its LNOC, Respondent claimed that “[t]he documents were not received by the Safety and Law Departments until February 2, 2018.” The Commission has construed informal statements such as these in LNOCs as motions for Rule 60(b) relief (though typically in pro se cases). See, e.g., Secretary of Labor v. Kaposy, 607 F. Appx. 230 (3d Cir. 2015) (unpublished) (Commission treating Respondent’s letter as petition for relief from judgment under Fed. R. Civ. P. 60(b)).

In its supplemental brief, Respondent requests relief due to “extraordinary circumstances” and “excusable neglect.” (Resp’t Br. at 6-7 citing Commission Rule 33 note 1 “Under extraordinary circumstances, the cited employer, an affected employee, or an authorized employee representative may seek relief from the final order pursuant to Federal Rule of Civil Procedure 60[.]”). Excusable neglect falls under Fed. R. Civ. P. 60b)(1) and “extraordinary circumstances” have typically fallen under Fed. R. Civ. P. 60(b)(6). Pioneer Invest. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 393 (1993) (Pioneer); Branciforte Builders, Inc., 9 BNA OSHC 2113, 2116-2117 (No. 80-1920, 1981).

A late filing may be excused under Fed. R. Civ. P. 60(b)(1) if the final order was entered because of “mistake, inadvertence, surprise or excusable neglect.”

The moving party bears the burden of showing that it is entitled to such relief. Rule 60(b) provides that the judge may grant relief for reasons including “mistake, inadvertence, surprise, or excusable neglect.” In determining excusable neglect, the Commission takes into account “all relevant circumstances surrounding the party's omission,” including: “the danger of prejudice to the [opposing party], the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith.”

Elan Lawn & Landscape Serv., Inc., 22 BNA OSHC 1337, 1339 (No. 08-0700, 2008) (citations omitted).

A late filing may also be excused under Fed. R. Civ. P. 60(b)(6), for any other reason that justifies relief, such as when “absence, illness, or a similar disability prevent[s] a party from acting to protect its interests.” Branciforte Builders, Inc., 9 BNA OSHC at 2116-2117. A party seeking relief under Rule 60(b)(6) “must show ‘extraordinary circumstances’ suggesting that the party is faultless in the delay.” Pioneer, 507 U.S. at 393. Where a party is partly to blame for the delayed filing, relief from the final order must be sought under Fed. R. Civ. P. 60(b)(1) and the party’s neglect must be excusable. Id. The Third Circuit has emphasized that the Pioneer equitable analysis requires consideration of “all relevant circumstances” surrounding a party’s request for relief due to excusable neglect. Avon Contractors, Inc. v. Sec’y of Labor, 372 F.3d 171, 174 (3d Cir. 2004. Therefore, the “control” factor must not be weighted too heavily at the expense of the other relevant Pioneer factors. Id; see also Coleman Hammons Constr. Co. v. OSHRC, 942 F.3d 279, 283 (5th Cir. 2019) (same); George Harms Constr., 371 F.3d at 164 (same).

In the Third Circuit, where this case may be appealed, a decision to exercise discretion under Fed. R, Civ. P. 60(b)(6) is “ ‘ available only in cases evidencing extraordinary circumstances.’ ” Lasky v. Cont'l Prods. Corp., 804 F.2d 250, 256 (3d Cir.1986) (quoting Stradley v. Cortez, 518 F.2d 488, 493 (3d Cir.1975)); Fed. R. Civ. P. 60(b)(6). Equitable factors guiding the decision to grant relief include:

[1] the general desirability that a final judgment should not be lightly disturbed;

[2] the procedure provided by Rule 60(b) is not a substitute for an appeal;

[3] the Rule should be liberally construed for the purpose of doing substantial justice;

[4] whether, although the motion is made within the maximum time, if any, provided by the Rule, the motion is made within a reasonable time; ...

[5] whether there are any intervening equities which make it inequitable to grant relief;

[6] any other factor that is relevant to the justice of the [order] under attack.

Kaposy, 607 F. App'x at 231 citing Lasky, 804 F.2d at 256 (citations omitted); see also Coltec Indus., Inc. v. Hobgood, 280 F.3d 262, 274–75 (3d Cir.2002) (holding that the movant's particular situation in the context of a Rule 60(b)(6) motion is vitally important). “The fundamental point of 60(b) is that it provides ‘a grand reservoir of equitable power to do justice in a particular case.’ ”  Cox v. Horn, 757 F.3d 113, 122 (3d Cir. 2014).

Here, Respondent explains “that Daniel Sawchak was a craft employee, who was on his 4th day of a temporary detail as a 204b supervisor. He was asked but did not recall signing for the letter or what he might have done with it.” (Resp’t Supp. Br. at 6.) Respondent then claims that

[o]nce Postal management became aware of the Citation, it acted promptly in response, filing its NOC the very same day it received a copy of the Citation from the Area Director. The Commission did not, at any time, object to the Late Notice of Contest, and has not been prejudiced by the late Notice of Contest.

(Resp’t Supp. Br. at 9.) Even though Respondent’s employee mishandled the certified mailing of the Citation, the Commission typically holds parties responsible for their mail-handling procedures and Respondent has provided little to no support explaining why it should be excused for Mr. Sawchak’s mishandling of the Citation. La.-Pac. Corp., 13 BNA OSHC 2020, 2021 (No. 86-1266, 1989) (Commission expects employers to maintain orderly procedures for handling important documents). The record also reveals that Respondent management knew about previous instances of late filings in OSHA matters from “the WPA safety office” and about its OSHA history that “is not acted on timely and an extension date or two are requested.” (Ex. JX-15 at 7-8.) As Respondent has not explained why it should not be held responsible for Mr. Sawchak’s mishandling of the Citation, and Respondent’s management was aware of previous instances of untimeliness from that branch, the undersigned is unable to find that Respondent’s neglect in this instance was excusable under Fed. R. Civ. P. 60(b)(1).

On the other hand, the Secretary claims that, at the time of Respondent’s late filing, the Secretary did not oppose it and instead filed his Complaint. The Secretary further claims that, “given that the parties’ pleadings were processed in the normal course, and this case has been tried on the merits and briefed, we see no reason to oppose that petition now.” (Sec’y Supp. Br. at 2.) The Commission has previously held, however, that “where an untimely NOC is docketed, under Commission practice it is incumbent upon the Secretary to file a motion to dismiss the NOC as untimely[.]” Taj Mahal Contracting, 20 BNA OSHC at 2022. Here, instead of filing the motion to dismiss, the Secretary filed the Complaint, averring that the Commission had jurisdiction for this matter under section 10(c) of the OSH Act, because the Secretary “did not oppose” Respondent’s LNOC. (Sec’y Supp. Br. at 2.) The undersigned finds that, based on the Secretary’s supplemental brief, the Secretary knew that Respondent’s filing was late, that the matter had been deemed a final order, and yet, the Secretary did not specifically raise this issue to the undersigned’s attention in the Complaint.

As each party notes, however, this case has proceeded despite the LNOC for over two years, wherein the hearing was held and then the merits were fully briefed. The undersigned is also mindful that Fed. R. Civ. P. 60(b) caselaw cautions that no one equitable factor should be weighed too heavily, and that the aim is “to do justice in a particular case.” Cox, 757 F.3d at 122. The undersigned finds that all share blame in cultivating this issue. No entity would be prejudiced if this matter were to proceed after relief from the final judgment. Indeed, substantial justice would be furthered if the merits were reached as all spent significant time preparing for, participating in, and briefing the merits after, the hearing that was held in this matter.

Accordingly, the undersigned finds that this case barely passes muster for Fed. R. Civ. P. 60(b)(6) relief. It is particularly noted that the Secretary abdicated his responsibility to file a motion to dismiss as is the practice before this Commission. Taj Mahal Contracting, 20 BNA OSHC at 2022. However, the weight of the equitable factors for this case is in favor of reaching the merits of this case. Relief is granted from the final order under Fed. R. Civ. P. 60(b)(6) as the events in this matter constitute “extraordinary circumstances.”

PART II: MERITS

  For the following reasons, the Citation is this matter is VACATED.

STIPULATIONS

The parties stipulated to the following facts:

(“Stipulations”; Ex. JX-0; Tr. at 11-12.)

BACKGROUND

This case concerns two postal workers (PW1 and PW2) employed by Respondent at the Mt. Oliver Branch of the Pittsburgh Post Office located in Pittsburgh, PA. PW1 and PW2 are both letter carriers and, at the time of their injuries, PW1 had been employed about 20 years and PW2 had been employed about 1 year by Respondent. (Stip. ¶¶ 1, 2.) PW1 injured his back when he lifted a bag full of mail. The Secretary claims that Respondent retaliated against PW1 when Respondent disciplined PW1 after he reported his injury to his manager. Respondent claims that PW1 failed to follow proper and established safety protocol when lifting the mailbag and was disciplined in accordance with Respondent’s worker safety program. PW2 was bitten on her arm by a dog while attempting to deliver mail to a residence. The Secretary claims that Respondent retaliated against PW2 when Respondent disciplined her after she reported a dog bite injury to her manager. Respondent claims that PW2 failed to follow proper and established safety protocol related to mail delivery around aggressive dogs and was disciplined consistent with its worker safety program.

The disciplinary process in this case was conducted according to a contract in place between Respondent and the National Association of Letter Carriers (NALC). (Tr. at 364-366, 393-394, 406-407). The process includes the participation of the employee at issue, the direct supervisor, the manager, a higher-level official than the manager, and a union steward. (Tr. at 394.) In this case, the process was the same for both PW1 and PW2. After PW1 notified Acting Manager Harry Wolfe of his injury, Wolfe talked with PW1 for 5-10 minutes and then sent PW1 to Concentra Medical (a medical provider for Respondent) for medical treatment.7 The same process happened for PW2. (Stip. ¶¶ 16, 28; Tr. at 32, 35, 62, 213, 239, 271; Sec’y Br. at 9, 16).

With regard to PW1, PW1 testified that he did not demonstrate his lifting technique to Wolfe during this conversation. (Tr. at 35.) In contrast, Wolfe testified that PW1 did demonstrate to Wolfe his lifting technique upon his request during this conversation. (Tr. at 207.) Wolfe also ordered PW1 to be drug tested that day, and the results were negative. (Stip. at ¶¶ 18, 19.)

Wolfe reported each injury to his boss, Maureen Gerst-Stewart, the Manager of Customer Service Operations, Pittsburgh, via e-mail on or around the day of the incidents and before pre-disciplinary interviews were conducted in each matter. (Tr. at 338-339; Ex. JX-15 at 2 (e-mail on or around May 17, 2017 re: PW1), 4 (e-mail on June 1, 2017 re: PW2).) Subsequently, delivery supervisor Clifford Mayfield conducted a pre-disciplinary interview (PDI) with each injured employee, with both PDIs accompanied by union steward Dave Bugay. (Stip. ¶¶ 20, 30; Exs. JX-3, 4, 10, 11).

Wolfe thereafter submitted formal discipline requests for both PW1 and PW2. (Tr. at 216, 240.) Mayfield delivered the discipline packages to Respondent’s Labor Relations office for their consideration. (Tr. at 106 (PW1), 123-124 (PW2).) At Respondent’s Labor Department, Labor Relations Specialist David Chludzinski reviewed the disciplinary packages, concurred with the requested discipline, and drafted the discipline letters. (Tr. at 389-390, 394.) Shortly after, two discipline letters were issued to the injured employees. Delivery Supervisor Robin Derry issued the discipline to PW1, and Delivery Supervisor Clifford Mayfield issued the discipline to PW2 (signed by Robin Derry for Clifford Mayfield). (Exs. JX-6, 13.)

Due to the many people involved in the disciplinary process in this case, the undersigned created a pictorial chart as shown in “Chart A,” to assist the reader in understanding who participated in the disciplinary process, how much influence that person had, and at what point in time that person took those actions relative to the other events that occurred in this case. The record reveals that, as relevant to this case, Respondent’s organizational structure is complex with overlapping relationships among Respondent’s management, workers, and union representatives.

Respondent’s Management Chain8

CHART A: Respondent’s Management Chain.

  As Chart A indicates, PW1 and PW2 are the two postal workers who were injured in this case. They both had been trained in the relevant safety protocols related to their job tasks. (Tr. at 50, 70-71.) They both reported their respective injuries to their manager at the time, Wolfe. (Tr. at 31, 60, 204-206.) Wolfe was more senior in management than the delivery supervisors, Clifford Mayfield and Robin Derry. (Tr. at 89, 137, 139; Ex. GX-13 at 1.) Mayfield and Derry were equivalent in rank and directly supervised PW1 and PW2 depending on who was on duty at the Mt. Oliver post office that day. (Tr. at 31, 89, 139, 332.) Both Mayfield and Derry directly reported to Wolfe. (Exs. GX-13 at 1, GX-14 at 1.) Mayfield did “what [he] was told” by Wolfe and conducted the PDIs of PW1 (May 22, 2017) and PW2 (June 2, 2017), with union steward Dave Bugay also in attendance, as part of this disciplinary process. (Tr. at 106; Stip. ¶¶ 20, 30.) Bugay is a letter carrier in the Mt. Oliver branch, as well as a union steward. (Tr. at 467-468.)

Chludzinski, the Labor Relations Specialist manager, reviewed the requested discipline in this case. (Tr at 389.) Chludzinski’s concurrence with the disciplinary request was required by the NALC contract as he was Wolfe’s “higher level official.” (Tr. at 394.) The purpose of the concurrence is to have a “higher-level manager who presumptively has more experience, maybe a little more levelheaded, can tell the new supervisor you’re not – this is excessive in this case. Or vice versa.” (Tr. at 405.) Gerst-Stewart testified that the requesting official has the power to override “Labor,” but never does, because “Labor” is the one familiar with the law. (Tr. at 364-366.) Chludzinski did not talk with Wolfe’s delivery supervisors, Mayfield or Derry, regarding the discipline during his review of the matters. (Tr. at 390, 394.) Chludzinski testified that he reviews non-safety discipline requests with the goal of whether it would “be supported through the grievance procedure” because he “didn’t want it to be some discipline that was issued that was just going to get tossed in a grievance procedure.” (Tr. at 413.) Safety related disciplinary requests, however, are different and, for example, he got “more in depth” with the disciplinary request at issue in this case. (Tr. at 412-415.)

When Wolfe formally requested discipline for PW1 and PW2, Wolfe requested a 7-day no time off suspension to be issued to them. (Exs. JX-5, 12.) According to Chludzinkski, Respondent’s progressive disciplinary policy follows Respondent’s contract with NALC, which gives discretion to the requesting official to “skip steps” based on “mitigating or aggravating circumstances,” especially in his opinion for safety infractions. (Tr. at 402-405.) The steps in the progressive disciplinary policy include: 1) discussion with the employee, 2) written warning, 3) 7-day no time off suspension9, 4) 14-day no time off suspension, and 5) possible termination. (Tr. at 405-408.) With regard to PW1, Respondent’s contract with NALC required concurrence, verbal or written, by a higher-level official than the one who requested the discipline. (Tr. at 394.) Here, Chludzinski was Wolfe’s higher-level official. PW2, however, was a “non-career” employee and was therefore not subject to the concurrence requirement of the NALC contract. (Tr. at 447.) Chludzinski testified that he still spoke with Wolfe regarding the discipline for PW2, but any anomalies in the paperwork for PW2 were not a potential procedural defect in the grievance procedure and were therefore of no concern to him. (Tr. at 446-448.)

Chludzinski concurred with Wolfe’s requested discipline of a 7-day no time off suspension for PW1 and PW2 and drafted their respective disciplinary letters. (Tr. at 412, 418-421.) The letters were issued by the delivery supervisors and presented to PW1 on May 31, 2017 and to PW2 on June 2, 2017.

Bugay filed a grievance on behalf of PW1 on June 8, 2017, and PW2 on June 16, 2017. (Tr. at 68, 477; Exs. JX-7, 14; Resp’t Br. at 23 ¶ 84.) Bugay also filed retaliation complaints under § 11(c) of the OSH Act with OSHA on behalf of PW1on July 6, 2017, and PW2 on June 19, 2017. (Tr. at 51, 82, 511, 524-525; Resp’t Br. at 17 ¶ 42, 23 ¶ 85.) In mid-July 2017, Louis Kammermier replaced Wolfe and became the Acting Manager of the Mt. Oliver branch. (Tr. at 309, 320.) After reviewing the disciplinary matters, Kammermier rescinded and expunged both disciplinary suspensions in this case on August 18, 2017. (Exs. JX-7, 14.) For both rescinded disciplinary measures, Kammermier determined that the “evidence does not support issued discipline.” (Tr. at 312-315; Exs. JX-7, 14.) He testified that he does not know who decided to issue the discipline. (Tr. at 310.) Kammermier testified that the local manager, not the supervisor, is responsible for the decision to send or not send the package requesting discipline. (Tr. at 334).

To recap the timeline of events of this case, and to tie them to OSHA’s investigation actions, Table A summarizes the relevant events.

Timeline of Events

TABLE A: Timeline of Events.

As Table A shows, PW1 was injured on May 15, 2017 lifting a mailbag and he reported his injury to Wolfe that day. On May 31, 2017, PW1 was disciplined with a 7-day no time off suspension. On June 1, 2017, PW2 was injured by a dog and she reported her injury to Wolfe that day. The next day, PW2 was disciplined with a 7-day no time off suspension. In June 2017, union steward Bugay filed a grievance and whistleblower complaint regarding the discipline of PW1 and PW2. Shortly thereafter, also in June, OSHA began a § 11(c) investigation of the whistleblower complaint.

On July 6, 2017, OSHA began a separate § 1904 investigation, under 29 C.F.R. § 1904.35(b)(1)(iv), which ultimately led to the Citation at issue here. Before either OSHA investigation concluded, Respondent rescinded and expunged both disciplinary matters from the records of both PW1 and PW2 on August 18, 2017. About two weeks later, on September 1, 2017, OSHA closed out the § 11(c) investigation and complaint. On October 7, 2017, OSHA took Respondent management’s statements as previously planned during the § 11(c) investigation, but subsequently used those statements for the § 1904 proceedings here. On November 28, 2017, OSHA issued the Citation for this case.

An aspect of this case that will be addressed is Respondent’s National Performance Assessment, Performance Evaluation System, Pay-for-Performance plan (“NPA-PES-PFP”), of which the Secretary devoted almost 7 pages of his post-hearing brief. (Sec’y Br. at 21-27.) The Secretary sets out in detail part of Respondent’s own business evaluation system and compensation plan as relevant to the issues in this case. While the Secretary insists that he does not allege that this compensation plan violates § 1904, he nevertheless claims that this compensation plan shows Respondent’s “incentive for taking the adverse actions at issue.” (Sec’y Br. at 22 n.7.)

Respondent disagrees and claims that this “litigation is nothing more than an excessive fishing expedition, in which the Secretary hopes to stumble upon some evidence which might support their attempt to expand the allegation to include an indictment of Respondent’s incentive programs.” (Resp’t Br. at 46.) Elsewhere in its brief, Respondent claims that OSHA is attempting to use the cited standard under 1904 to “examine and evaluate an employer’s performance and compensation programs, its training and evaluation of employees, including ‘all criteria’ used to evaluate management.” (Resp’t Br. 42.) It is also noteworthy that no abatement was specified in the Citation for this matter and no discipline remained on the subject employees’ records at the time the Citation was issued.

DISCUSSION

To establish a violation of a standard, the Secretary must establish its applicability, the employer's noncompliance with it, employee access to the noncomplying condition, and the employer's knowledge of the violation.  Astra Pharma. Prods., Inc., 9 BNA OSHC 2126, 2129 (No. 78-6247, 1981), aff'd in pertinent part, 681 F.2d. 69 (1st Cir. 1982).  “It is well settled that the test for the applicability of any statutory or regulatory provision looks first to the text and structure of the statute or regulations whose applicability is questioned.”  Unarco Commercial Prods., 16 BNA OSHC 1499, 1502-1503 (No. 89-1555, 1993). 

The standard at issue here states that the employer must not “discharge or in any manner discriminate against any employee for reporting a work-related injury or illness.”  29 C.F.R. § 1904.35(b)(1)(iv).  The Secretary alleges that Respondent, the employer, discriminated against PW1 and PW2 after they reported their work-related injuries to Wolfe, their manager, by issuing to each of them a 7-day no time off suspension.  The undersigned finds that by its plain terms, the standard applies to Respondent.

Both parties filed motions for summary judgment in this matter in which the parties addressed inter alia Respondent’s “ultra vires” affirmative defense that Respondent asserted in its Answer. See Answer at 3; Complainant’s Motion for Partial Summary Judgment (Sept. 12, 2018); Respondent’s Motion for Summary Judgment (Oct. 26, 2018); Secretary’s Response in Opposition to Respondent’s Motion for Summary Judgment (Nov. 9, 2018); Respondent’s Reply to Secretary’s Response to Respondent’s Motion for Summary Judgment (Nov. 16, 2018). While both motions were denied, the parties address this issue again in their post-hearing briefs. See Order Denying Complainant’s Motion for Partial Summary Judgment and Motion to Stay Pending Ruling (Sept. 24, 2018); Order Denying Respondent’s Motion for Summary Judgment (Nov. 20, 2018).

Respondent argues that the Citation under the cited standard is invalid as ultra vires. (Resp’t Br. at 29-42.) Respondent claims that OSHA exceeded its authority in promulgating the cited standard because (a) “Congress created the exclusive tool for discrimination and retaliation regulation in section 11(c) of the OSH Act,” (b) OSHA now has “new unlimited discrimination causes of action,” (c) these “unlimited discrimination claims under section 1904 are arbitrary and capricious,” and (d) “OSHA’s description of the unlimited authority granted by Congress violate the non-delegation doctrine.”

The Secretary, on the other hand, argues that he had the authority to promulgate the cited standard “under the recordkeeping authorities in the OSH Act, see 29 U.S.C. §§ 657(c)(1), 657(c)(2), 657(g)(2), 673(a), 673(e), and thus the Secretary’s reasonable interpretation of the Act is entitled to controlling deference under Chevron USA, Inc. v. NRDC, 467 U.S. 837, 842 (1984).” (Sec’y Br. at 29.) The Secretary also refers to a recent well-researched and well-reasoned order issued by Commission ALJ William S. Coleman on this same issue in a similar matter before the Commission. See U.S. Postal Serv., OSHRC No. 18-0462, Order Granting Secretary’s Motion for Partial Summary Judgment on Affirmative Defenses Numbered 8 & 9 in Respondent’s Answer (Dec. 27, 2018) (Coleman Order).11

The undersigned has reviewed the parties’ arguments in their post-hearing briefs and in their motions for summary judgment (and oppositions and responses thereto). The undersigned also reviewed the Coleman Order and hereby incorporates by reference into this Decision its detailed analysis of this issue into this Decision. See Attachment A. For the following reasons, the undersigned rejects Respondent’s arguments and agrees with the Secretary that the Citation in this matter is valid.

The Coleman Order addresses the same arguments Respondent raises in this case. It begins by reviewing the statutory and regulatory background to analyze the Secretary’s authority to promulgate recordkeeping regulations. (Coleman Order at 3-5.) The standard at issue here was promulgated pursuant to sections 2(b), 8(c)(2), 8(g)(2), and 8(c)(1) of the OSH Act. (Coleman Order at 5-13.) Section 9(a) then gives the Secretary the duty and the power to enforce this regulation by conducting inspections and issuing citations. (Coleman Order at 4.) During the promulgation of the subject regulation, the Secretary addressed comments regarding the standard’s similarity to section 11(c). (Coleman Order at 8-13.) The Secretary stated that “the principal motivation for the proposed anti-retaliation regulation is not to redress an employee’s 11(c) rights, but rather to advance OSHA’s responsibility to collect accurate injury and illness statistics[.]” (Coleman Order at 10.)

With this in mind, the Coleman Order analyzes arguments relating to whether the alleged standard was invalid as ultra vires, and whether it lacked a rational basis and/or whether it was arbitrary and capricious, under the framework established by Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). (Coleman Order at 2, 14, 24.) According to the Coleman Order, “nothing in section 11(c) [of the OSH Act] speaks to whether OSHA may exercise its authority to promulgate regulations that promote accurate recordkeeping where anti-retaliation and recordkeeping goals overlap.” (Coleman Order at 19.) It further explains that “[i]nterpreting the Act to permit the Secretary to promulgate a regulation that advances the accuracy of injury and illness data is consistent ‘with the design and structure of the statute as a whole.’ ” (Coleman Order at 19 citing Util. Air Regulatory Grp. v. EPA, 573 U.S. 302, 321 (2014).)

The Coleman Order also concludes that the rulemaking record “far surpasses” the minimum requirements articulated in Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125 (2016) for assessing whether certain rulemaking is arbitrary and capricious under the Administrative Procedure Act, 5 U.S.C. § 706(2)(A) (APA). (Coleman Order at 17, 21.) Similarly, it found that the “preamble to the final rule more than amply establishes that the anti-retaliation regulation is ‘reasonably related’ to the requirements of the Act that employers provide and that OSHA collect accurate injury and illness data,” and therefore the regulation did not violate the “non-delegation” doctrine as addressed in Skinner v. Mid-Am. Pipeline Co., 490 U.S. 212, 214 (1989). (Coleman Order at 21-22.) The Coleman Order goes on to clarify that “[e]nforcement of the anti-retaliation regulation is not rendered arbitrary and capricious simply because there could be a parallel section 11(c) and section 9(a) proceedings involving the same alleged retaliatory act.” (Coleman Order at 22.) Conflicts arising under the parallel proceedings, such as double recovery, could be prevented by equitable principles, and issue or claim preclusion could be permitted to solve such conflicts. (Coleman Order at 22.)

Finally, in sum, the Coleman Order concludes that:

Enforcement of section 1904.35(b)(1)(iv) pursuant to section 9(a) of the Act is well within the bounds of permissible construction of the Act and is neither arbitrary nor capricious. This permissible interpretation of the Act is due ‘controlling weight’ under Chevron, inasmuch as the anti-retaliation regulation was promulgated pursuant to Congress’s express delegations of authority to the Secretary (a) to promulgate regulations ‘as necessary or appropriate for the enforcement of this [Act] or for developing information regarding the causes and prevention of occupational accidents’ in section 8(c)(1), (b) to ‘prescribe regulations requiring employers to maintain accurate records of … work-related deaths, injuries and illnesses,’ in section 8(c)(2), and (c) to prescribe regulations deemed necessary to carry out [his] responsibilities under this [Act]’ in section 8(g)(2).

(Coleman Order at 23 citing Chevron, 467 U.S. at 843-844.)

Judge Coleman’s analysis persuasively addresses Respondent’s arguments raised in this matter. The undersigned agrees with the Secretary regarding the Coleman Order and embraces the legal conclusions as applied to the issues in this case. For these reasons, the undersigned finds that the cited standard is a valid exercise of the Secretary’s rule-making authority and rejects Respondent’s arguments that it is invalid as ultra vires or arbitrary and capricious under the APA.

Accordingly, the undersigned concludes that the Citation issued in this case pursuant to 29 C.F.R. § 1904.35(b)(1)(iv) is valid.

The undersigned finds that the Secretary failed to establish a violation of the cited standard in this case. The Secretary has not proven that Respondent discriminated against PW1 or PW2 because they reported their work injuries.

According to the Secretary, “to establish a violation of § 1904.35(b)(1)(iv), the Secretary must show by a preponderance of the evidence that: 1) the employee reported a work-related injury or illness; 2) the employer took adverse action against the employee; and 3) the employer took the adverse action because the employee reported a work-related injury or illness.” (Sec’y Br. at 34 citing JX-16 OSHA Interim Enforcement Procedures for New Recordkeeping, Section III – Special Interim Enforcement, Inspection, Referral, and Citation Procedures for Violations of 1904.35(b)(1)(iv), Sub-section A – Elements of the violation, p. 3.)  The Secretary further states that “[t]hese elements of proof are entirely consistent with well-established law of retaliation and discrimination.” (Sec’y Br. at 35 citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Tex.as Dept. of Comty. Affairs v. Burdine, 450 U.S. 248, 252-253 (1981); Postal Serv. Bd. of Gov. v. Aikens, 460 U.S. 711, 715 (1983); Acosta v. Lloyd Indus., Inc., 291 F.Supp. 3d 647 (E.D. Pa. 2017).)

The Third Circuit, in which this case arose, applies the burden-shifting scheme of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) if a statute does not provide for a burden-shifting framework to determine discrimination. Doyle v. U. S. Sec'y of Labor, 285 F.3d 243, 250 (3d Cir. 2002); see also 29 U.S.C. § 660(a) (“Any person adversely affected or aggrieved by an order of the Commission . . . may obtain . . . review . . . in any United States court of appeals for the circuit in which the violation is alleged to have occurred or where the employer has its principal office, or in the Court of Appeals for the District of Columbia Circuit . . . .”); Kerns Bros. Tree Serv., 18 BNA OSHC 2064, 2067 (No. 96-1719, 2000) (Commission generally applies law of the circuit where it is probable a case will be appealed).

District courts analyzing section 11(c) claims under the OSH Act also apply the McDonnell Douglas framework. See, e.g., Perez v. E. Awning Sys., Inc., No. 3:15-CV-01692 (MPS), 2018 WL 4926447 (D. Conn. Oct. 10, 2018); Acosta v. Dura-Fibre LLC, No. 17-C-589, 2018 WL 2433589 (E.D. Wis. May 30, 2018); Acosta v. Lloyd Indus., Inc., 291 F. Supp. 3d 647 ; Perez v. Champagne Demolition, LLC, No. 112CV1278FJSTWD, 2016 WL 3629095 (N.D.N.Y. June 29, 2016); Perez v. Pac. Ship Repair & Fabrication, Inc., No. C14-1773-JCC, 2015 WL 7292594 (W.D. Wash. Nov. 16, 2015); Chao v. Blue Bird Corp., No. 5:06-CV-341 (CAR), 2019 WL 485471, (M.D. Ga. Feb. 26, 2009), aff'd sub nom. Solis v. Blue Bird Corp., 404 F. App'x 412 (11th Cir. 2010) (unpublished).

When the Commission is asked to apply a legal test developed outside of the OSH Act, the Commission looks to whether the OSH Act’s goals of ensuring workplace health and safety are preserved by applying that test. See, e.g., Sharon & Walter Constr., Inc., 23 BNA OSHC 1286, 1294-95 (No. 00-1402, 2010) (considering “substantial continuity test” developed under the National Labor Relations Act for purposes of repeat characterization under the OSH Act). As discussed in the previous section, the standard at issue in this case was properly promulgated pursuant to section 8(c)(1) of the OSH Act which provides that “[e]ach employer shall make, keep and preserve … such records regarding his activities relating to this Act as the Secretary … may prescribe by regulation as necessary or appropriate for the enforcement of this Act [.]” 29 U..S.C. § 657(c)(1). The OSH Act further directs the Secretary to “prescribe such rules and regulations as he may deem necessary to carry out [his] responsibilities under this Act.” 29 U.S.C. § 657(g)(2). The OSH Act is silent as to the burden-shifting framework to be applied to a discrimination analysis of a regulation properly promulgated under the OSH Act. Moreover, the McDonnell Douglas burden-shifting scheme is the well-established framework for discrimination case law, both parties agree to apply this test, and the undersigned finds that it is the appropriate framework to apply in this case.

In his brief, the Secretary advances a retaliation theory of discrimination in this case.12 (Sec’y Br. at 34-46.) The McDonnell Douglas framework for a retaliation discrimination analysis is a three-step burden-shifting test that is summarized as follows:

[i]n the absence of direct evidence, the plaintiff must first make a prima facie case of retaliation by showing (1) participation in a protected activity, (2) a subsequent adverse action by the employer, and (3) evidence of a causal connection between the protected activity and the adverse action.  The burden then shifts to the defendant, who must articulate an appropriate non-discriminatory reason for its action.  Finally, if the defendant satisfies its burden, the plaintiff must then demonstrate that the proffered reason is pretextual. 

Acosta v. Lloyd Indus., Inc., 291 F. Supp. 3d at 653(citations omitted); see also Reich v. Hoy Shoe Co., 32 F.3d 361, 365 (8th Cir. 1994) (adopting three-pronged framework for analyzing retaliation case under § 11(c) of the OSH Act).

The Secretary’s approach to presenting his prima facie case with this three-step burden shifting test to the matter at hand is consistent with this test. (Sec’y Br. at 34 citing Ex. JX-16.) As such, the undersigned examines the facts here to see if the Secretary established whether: “1) the employee reported a work-related injury or illness; 2) the employer took adverse action against the employee; and 3) the employer took the adverse action because the employee reported a work-related injury or illness.” (Sec’y Br. at 34).

The facts here readily establish the Secretary’s prima facie case. Even Respondent agrees that the Secretary has presented a prima facie case of retaliation. (Resp’t Br. at 50.) Both PW1 and PW2 engaged in protected activity when they each reported their work-related injury to Wolfe. Perez v. U.S. Postal Serv., 76 F. Supp. 3d 1168, 1184 (W.D. Wash. 2015) (“The scope of rights protected implicitly and explicitly under the Act is broad.”); (Sec’y Br. at 36 citing 29 C.F.R. §§ 1904.35(b)(1)(iv)(“You must not discharge or in any manner discriminate against any employee for reporting a work-related injury or illness.”); 29 C.F.R. § 1904.36 (“In addition to § 1904.35, section 11(c) of the OSH Act also prohibits you from discriminating against an employee for reporting a work-related fatality, injury, or illness[.]”); Resp’t Br. at 50 (“Both employees engaged in protected activity and both were subject to an adverse action.”).

Both PW1 and PW2 suffered an adverse action when they were issued a 7-day no time off suspension. In a retaliation claim, an “adverse action” can include an action that could “dissuade a reasonable employee from exercising their protected conduct.” Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). The Secretary has incorporated Burlington into his analysis by defining an adverse action as whether the “action would deter a reasonable employee from accurately reporting a work-related injury or illness.” (Ex. JX-16 at 3.) The 7-day no time off suspension was recordable, and could serve as a pre-requisite for subsequent discipline, as part of Respondent’s progressive disciplinary policy. A recordable disciplinary action that could serve as a basis for the next level of discipline could chill a reasonable employee from reporting a workplace injury. Even if, as in this case, the discipline was subsequently expunged, “[a]n employer cannot nullify a retaliation claim simply by offering to undo its adverse action once the possibility of a government enforcement action looms on the horizon. Further, a subsequent offer of reinstatement does not eliminate the chill of the retaliatory act.” Perez v. E. Awning Sys., Inc., 2018 WL 4926447, at *7.

With regard to the third prong, causality, Respondent disciplined both PW1 and PW2 shortly after they reported their injuries – within two weeks for PW1 and one day for PW2. Courts have looked to open hostility or temporal proximity, to find a causal link between the protected activity and the adverse action. See, e.g., Acosta v. Lloyd Indus., Inc., 291 F. Supp. 3d at 654 (focusing on timing and “ongoing antagonism” as two main factors in finding the causal link necessary for retaliation); Perez v. E. Awning Sys., Inc., 2018 WL 4926447, at *8 (“A plaintiff may establish causation either directly through a showing of retaliatory animus, or indirectly through a showing that the protected activity was followed closely by the adverse action”) (citation omitted).

Direct evidence is that which ‘if believed, proves the fact of discriminatory animus without inference or presumption.’  Direct evidence includes statements demonstrating hostility toward a protected status.  Circumstantial evidence may also be used to show causation, provided that the evidence ‘give[s] rise to an inference of unlawful discrimination.’  Temporal proximity between protected activity and subsequent adverse actions can constitute sufficient circumstantial evidence.

Perez v. U.S. Postal Serv., 76 F. Supp. 3d at 1188 (citations omitted).

There is no direct evidence, such as a statement from Wolfe, establishing hostility toward PW1 or PW2 solely due to their reporting an injury and not due to a safety infraction. Circumstantially, however, due to the close temporal proximity of the suspensions to when PW1 and PW2 reported their injuries to Wolfe, the undersigned finds, and the parties do not dispute, that the Secretary established the causality connection between protected activity and retaliatory action. (Sec’y Br. at 41-42; Resp’t Br. at 50.) The Secretary has therefore established a prima facie case of retaliation.

At this point, the burden shifts to Respondent to proffer a legitimate, nondiscriminatory reason for issuing the 7-day no time off suspensions to PW1 and PW2 in this case. Acosta v. Dura-Fibre LLC, 2018 WL 2433589, at *6. This burden is “one of production, not persuasion.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000). Respondent states that the suspension letters themselves, as well as the testimony supporting Respondent’s actions in this case, articulate its legitimate, non-discriminatory business reasons for issuing the suspensions to PW1 and PW2. (Resp’t Br. at 50.)

The suspension letter to PW1 states that Respondent issued the 7-day no time off suspension because “it was determined that [he] did not practice safety or proper lifting techniques while handling the load.” (Ex. JX-6 at 1.) The letter cites to multiple provisions of the Respondent’s “Employee & Labor Relations Manual,” and the “City Delivery Carriers Duties & Responsibility Methods Handbook.” (Id.)

The suspension letter to PW2 states the Respondent issued the 7-day no time off suspension because she “should have avoided getting close enough to the fence that the dog could bite [her].” (Ex. JX-13 at 1.) This letter cites to Respondent’s Postal Rules & Regulations, “including but not limited to[,] Section 133.1 of Handbook M-41[:] Always exercise care to avoid personal injury and report all hazardous conditions to the unit manager.” (Id.)

The undersigned finds that Respondent has produced sufficient evidence for this trier of fact to conclude that Respondent disciplined PW1 and PW2 because they violated Respondent’s worker safety rules. Reeves, 530 U.S. at 142. The suspension letters articulate legitimate, non-discriminatory business reasons for the issued disciplinary measures for PW1 and PW2.

The burden now shifts back to the Secretary to demonstrate that this proffered reason is pretextual. Acosta v. Lloyd Indus., Inc., 291 F. Supp. 3d at 653; Acosta v. Dura-Fibre LLC, 2018 WL 2433589, at *6 (holding if employer articulates “legitimate, nondiscriminatory reason,” the burden shifts back to the plaintiff to submit evidence that the employer’s explanation is pretextual”) citing David v. Bd. of Trs. of Cmty. Coll. Dist. No. 508, 846 F.3d 216, 224 (7th Cir. 2017).

A plaintiff may demonstrate pretext by showing that the defendant’s proffered reasons for taking adverse employment actions “(1) had no basis in fact; (2) did not actually motivate [the adverse employment actions]; or (3) [were] insufficient to motivate [the adverse employment actions]” and were therefore pretextual. 

Acosta v. Dura-Fibre LLC, 2018 WL 2433589, at *7 (citation omitted); Chao v. Blue Bird Corp., 2009 WL 485471, at *5 (citations omitted) (to support a finding of pretext, courts have looked to evidence such as changes in the employer's proffered reason for its employment decision or whether the employer’s investigation of the incident was thorough or complete).

Here, the Secretary’s case falters. The discipline in this matter was subject to management discretion and approved by a reviewing official. The suspension itself was in accordance with Respondent’s progressive disciplinary policy, as testified to by Chludzinski, whose testimony the Secretary does not attack. The discipline was necessarily issued close in time to the reporting of the injury as it related to the action of the employee that caused the injury.

The Secretary claims that “the issued disciplines are completely unsupported by the facts, and Respondent’s proffered explanations are pretextual and unworthy of credence.” (Sec’y Br. at 43.) Yet the evidence that the Secretary relies on does not support his claim. For example, the Secretary argues that “there is no evidence to support that [PW1] lifted improperly, and no witnesses to either his lifting or his alleged reenactment for Wolfe.” (Id..) At the same time, the Secretary questions Wolfe’s testimony that PW1 demonstrated improper lifting to him, arguing “that there is no evidence to support Wolfe’s claim.” (Id. at 32.) Chludzinski, however, corroborated Wolfe’s testimony. (Tr. at 420.) The Secretary also questions PW2’s discipline letter that states that “having her dog spray ‘would not have helped in this instance.’ ” (Sec’y Br. at 44.) The Secretary, however, does not address how that section of the letter began, “you should have avoided getting close enough to the fence that the dog could bite you.” (Ex. JX-13 at 1.)

The Secretary then questions the details and procedural irregularities within Respondent’s disciplinary process. For instance, the Secretary criticizes that Mayfield’s and Bugay’s PDI notes did not mention specific facts that would support unsafe acts or rule violations. (Sec’y Br. at 43-44.) Yet, the Secretary does not question the validity of Chludzinski’s testimony. Chludzinski testified that he concurred with the requested discipline based on a conversation with Wolfe. Chludzinski also was not surprised about irregularities in the documentation. (Tr. at 446-447.) Chludzinski testified that he “writes hundreds of these a year,” and therefore does not recall all specifics relating to PW1’s discipline, and for similar reasons does not recall all the documentation he reviewed for PW2’s discipline. (Tr. at 408, 432-434.)

The only aspect that raised Chludzinski’s eyebrows was the drug test order on PW1. (Tr. at 421.) Wolfe testified that he did not remember ordering the drug test, even though the e-mails in the record establish that he did (the parties stipulated to it). (Tr. at 223-224, 245-246; Stip. at ¶ 18.) Respondent argues that the Secretary failed to prove that this particular drug test order is connected to PW1’s reporting of his injury. (Resp’t Br. at 52.) The Secretary claims that the drug test order is proof of animus because it was a deviation from Respondent’s own personnel policies.

It is not disputed that the drug test order deviated from Respondent’s personnel policies, but this fact alone is not enough to establish pretext. The case the Secretary cites for support for his proposition, Perez v. U.S. Postal Serv., 76 F. Supp. 3d 1168, is distinguishable from this case. In that case, the evidence regarding deviation from personnel policies was overt and rampant, including the fact that the employer did not consult with “Labor Relations” in that matter. Perez v. U.S. Postal Serv., 76 F. Supp. 3d at 1190. Here, as Chludzinski testified, all Labor procedures were followed, and the Secretary has not established that any irregularities in paperwork are a result of inherent retaliatory intent; rather, the record establishes that irregularities in paperwork are a result of general mishandling of paperwork.

The Secretary also relies on the fact that Kammermeir eventually threw out the discipline, writing “evidence does not support issued discipline.” (Sec’y Br. at 45.) Yet, while Kammermeir’s testimony reveals that he had a barren record from which to adjudicate the grievance, he also testified that “[i]t’s typical for information not to be passed along through the process. Either it’s lost or just not placed in there.” (Tr. at 332.)

The Secretary also alleges that Respondent’s pay-for-performance compensation and incentive plan “created an incentive for managers to reduce the number of carrier hours and reported injuries.” (Sec’y Br. at 45.) The Secretary further claims that Respondent’s “upper level management understood the potential for this kind of performance plan to incentivize managers to discourage injury-reporting,” and that Wolfe “was aware that his performance was evaluated solely on his NPA scorecard.” (Id. at 45-46.) The Secretary then boldly declares, “[w]hile some supervisors and managers may balance these conflicts appropriately, others, such as Wolfe in this case, may be unduly influenced by their desire for performance achievement, from a career advancement point of view, as well as a financial point of view.” (Id.. at 46.)

Respondent asserts that the Secretary has provided “nothing more than unfounded suspicion to support its Citation. There is simply no evidence of discriminatory or retaliatory animus in the record.” (Resp’t Br. at 51.) The undersigned agrees. The Secretary has failed to carry his burden at this stage in the retaliation analysis. As the preamble to the final rule noted:

It is important to note that the final rule prohibits employers only from taking adverse action against an employee because the employee reported an injury or illness. Nothing in the final rule prohibits employers from disciplining employees for violating legitimate safety rules, even if the same employee who violated a safety rule also was injured as a result of that violation and reported that injury or illness (provided that employees who violate the same work rule are treated similarly without regard to whether they also reported a work-related illness or injury). What the final rule prohibits is retaliatory adverse action taken against an employee simply because he or she reported a work-related injury or illness.

Improve Tracking of Workplace Injuries and Illnesses, Final Rule, 81 Fed. Reg. 29623, 29672 (May 12, 2016) (to be codified at 29 C.F.R. Part 1904); see also 29 C.F.R. § 1977.6. (“An employee’s engagement in activities protected by the Act does not automatically render [him/her] immune from discharge or discipline for legitimate reasons, or from adverse action dictated by non-prohibited considerations.”).

The Secretary must put forth more than conjecture regarding Respondent’s compensation incentive program – especially if the Secretary assures the undersigned that the program does not itself violate the cited standard. (Sec’y Br. at 22 n.7.) Nothing in the record supports the Secretary’s claim that Wolfe treated these employees differently, or discriminated against these employees, who reported their injuries because they reported their injuries. Indeed, Respondent’s organizational structure is set up so that employees can report their injuries, receive medical treatment, and file grievances to support them. This structure is frequently used as Chludzinski testified that he works on “hundreds” of these issues yearly. (Tr. at 408.) PW2 testified that she did not feel discouraged to report another injury even after being disciplined. (Tr. at 81.)

  Finally, given that the suspensions in this matter were rescinded and expunged from the employees’ records in this case, before the Citation was issued, the undersigned questions how the Secretary would propose that Respondent abate this Citation Item. The Secretary is aware of the need to specify abatement for citations issued pursuant to this new standard as evidenced in the Secretary’s interim enforcement procedures, which were in effect at the time of issuance:

Abatement: The citation must include remedies for the aggrieved employee, such as back wages, removal of disciplinary action, reinstatement of lost time and wages, etc., where appropriate… Also, the citation must include the means for abatement of the underlying policy or procedure that is related to the merit determination.

Ex. JX-16 at 5.

No abatement, however, is specified in the Citation. There is no remedy for the employees at issue here, as they had already been made whole well before the Citation was issued in this case. The Secretary claims Respondent’s pay-for-performance compensation and incentive plan is not violative of the cited standard, but the Secretary spent a considerable amount of time researching it and presenting the research in his brief. To the extent that the Secretary is attempting to touch Respondent’s incentive programs, as Respondent suggests, the undersigned finds that the Secretary has failed to present enough evidence tying Wolfe’s actions to the pay-for-performance compensation program in this case.

The Secretary failed to establish that Respondent violated the cited standard.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

All findings of fact and conclusions of law relevant and necessary to a determination of the contested issues have been made above. See Fed. R. Civ. P. 52(a). All proposed findings of fact and conclusions of law inconsistent with this decision are denied.

ORDER

Based upon the foregoing findings of fact and conclusions of law, it is ORDERED that:

SO ORDERED.

                /s/ Keith E. Bell

                Keith E. Bell

                Judge, OSHRC

DATE: May 18, 2020

  Washington, D.C.    

ATTACHMENT A

U.S. Postal Serv., “Order Granting Secretary’s Motion For Partial Summary Judgment On Affirmative Defenses Numbered 8 & 9 In The Respondent’s Answer” (No. 18-0462) (Dec. 27, 2018) (ALJ Coleman).

Links to Order:

PDF:

https://www.oshrc.gov/assets/1/6/18-0462OrderPartSumJt.Final.12.27.2018_(002).pdf

Text:

https://www.oshrc.gov/assets/1/6/18-0462OrderPartSumJt.Final.12.27.2018_(002).html

1 Section 11(c) of the OSH Act states in pertinent part:

29 U.S.C. § 660(c).

2 Published on May 12, 2016, § 1904.35(b)(1)(iv) states: “You must not discharge or in any manner discriminate against any employee for reporting a work-related injury or illness.” 29 C.F.R. § 1904.35(b)(1)(iv).

3 Fed. R. Civ. P. 60(b) provides in relevant part: “On motion and just terms, the court may relieve a party ... from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect[…, or] (6) any other reason that justifies relief. ” Fed. R. Civ. P. 60(b)(1), (6).

4 For personal privacy reasons, the names of the injured employees have been redacted in this Decision and Order.

5 At all times relevant to this case, this was Derry’s position. Derry is currently on extended military leave, was thus unavailable for depositions, and is thus also unavailable for trial.

6 The context of this stipulation, as well as the record, support a finding that the “2018” as written in Exhibit JX-0 is a typographical error and that the date intended to be stipulated to is “September 1, 2017.”

7 No further information regarding Concentra Medical, and its relationship to Respondent and its employees, is in the record.

8 The information in Chart A comes from the record and is used for visualization purposes. Chart A is not intended to capture Respondent’s complete organizational structure of the people at issue in this case, rather, it is intended to reflect the information that was provided in the record as is relevant to the issues herein.

9 According to Chludzinski, the “no time off” suspensions were a relic from the negotiations between Respondent and the NALC that “goes back [] to the 60’s…They’re just paper. But they carry the same effect for purposes of progressive discipline.” (Tr. at 406-407). The employee still goes to work, “they get paid…It’s just paper that goes in their file…for purposes of progressive discipline it can be relied upon for the next level.” (Tr at. 407.)

10 As noted above, he context of this stipulation, as well as the record, supports a finding that the “2018” as written in Exhibit JX-0 is a typographical error and that the date intended to be stipulated to is “September 1, 2017.”

11 As the Secretary notes, that case settled shortly after Judge Coleman issued that order. U.S. Postal Serv., No. 18-0462, Consent Order Approving Settlement (Feb. 26, 2019); Sec’y Br. at 30 n.10.

12 Respondent also discusses the facts of this case through a disparate treatment theory of discrimination. (Resp’t Br. at 47-49.) As the Secretary does not advance a disparate treatment theory, the undersigned deems the Secretary abandoned that theory in this case. L&L Painting Co., 23 BNA OSHC 1986, 1989 n. 5 (No. 05-0055, 2012) (holding that items not addressed in briefs before the Commission are deemed abandoned).