John H. QUINLAN, d.b.a. Quinlan Enterprises, Petitioner, v. SECRETARY, U.S. DEPARTMENT OF LABOR, Respondent.
No. 14-12347.
United States Court of Appeals, Eleventh Circuit.
Jan. 8, 2016.
Although the qualified privilege is not invincible, Lins v. Evening News Ass‘n, 129 Mich.App. 419, 342 N.W.2d 573, 581 (1983), the Institute has not articulated any argument as to why Michigan‘s qualified privilege for matters of public concern would not apply to these works, in light of the conspicuous historical importance of Rosa Parks. Nor can we conceive of any.
The use of Rosa Parks‘s name and likeness in the books, movie, and plaque is necessary to chronicling and discussing the history of the Civil Rights Movement—matters quintessentially embraced and protected by Michigan‘s qualified privilege. Indeed, it is difficult to conceive of a discussion of the Civil Rights Movement without reference to Parks and her role in it. And Michigan law does not make discussion of these topics of public concern contingent on paying a fee. As a result, all six books, the movie, and the plaque find protection in Michigan‘s qualified privilege protecting matters of public interest.17
III.
In short, the district court did not err in dismissing the Institute‘s complaint. The district court‘s order is AFFIRMED.
Frank L. Kollman, Kevin Michael Cox, Kollman & Saucier, Timonium, MD, for Petitioner.
Before HULL, WILSON, and ANDERSON, Circuit Judges.
ANDERSON, Circuit Judge:
Quinlan Enterprises (“Quinlan“), a sole proprietorship that engages in steel erection work, petitions for review of a final decision of the Occupational Safety and Health Review Commission (“Commission“). The Commission held that Quinlan violated standards under the Occupational Safety and Health Act (“OSHA” or the “Act“),
I. BACKGROUND
A. The Underlying Incident and Citations
In February 2012, Quinlan was engaged as the steel erection subcontractor at a construction worksite at the Dougherty High School in Albany, Georgia. Kinney Construction (“Kinney“) was the general contractor at the worksite. Kinney subcontracted with Gerdau AmeriSteel, a company engaged in structural steel fabrication, which then subcontracted to Quinlan. Quinlan has approximately thirty employees, two of whom—Miguel Pacheco and Humberto Vargas—were working at the Dougherty High School worksite on February 9, 2012.
On February 9, Pacheco and Vargas were assigned to anchor clips inside the building. This work involved installing plates or clips on a concrete block wall, welding clips underneath beams on the roof, and putting in epoxy bolts. The same day, an OSHA Compliance Safety and Health Officer initiated a scheduled on-site inspection. The inspector observed and photographed Pacheco and Vargas working on the edge of a 15-foot high concrete block wall without fall protection. Additionally, the inspector observed a ladder that was not secured from slipping when in the closed position. As a result of the inspection, the Secretary issued Quinlan a three-item Citation and Notification of Penalty on August 7, 2012. The first item alleged a serious violation of
B. The ALJ and OSHRC Proceedings
After a hearing, the taking of trial depositions, and the submission of post-hearing briefs, Administrative Law Judge Sharon D. Calhoun issued a Decision and Order on July 22, 2013. Sec‘y of Labor v. Quinlan Enters., OSHRC Docket No. 12-1698, 2013 WL 5505283, at *3-16 (Occupational Safety Health Review Comm‘n July 22, 2013). The ALJ Order affirmed Item 1 and 3 of the Citation and assessed a total penalty of $7,200.00. Quinlan filed a petition for discretionary review with the Commission on August 12, 2013, arguing that it was not liable for any violation because Pacheco and Vargas were not Quinlan‘s employees at the time of exposure. After the ALJ Order was issued, this Court decided ComTran, in which we held that “the Secretary does not carry her burden and establish a prima facie case with respect to employer knowledge merely by demonstrating that a
On remand from the Commission, Judge Calhoun made extensive findings and concluded that Pacheco and Vargas were workers employed by Quinlan at the time of the violations. Quinlan Enters., 24 BNA OSHC 2185, 2186-91 (No. 12-1698, 2014) (decision and order on remand) (ALJ). The ALJ also distinguished ComTran, stating that ComTran “only applies to scenarios where the supervisor is acting alone” and not to situations where the supervisor has knowledge of misconduct by his subordinates. Id. at 2192. Accordingly, the ALJ concluded that ComTran did not alter the dispositions of the affirmed violations. Id. at 2193. Quinlan again sought discretionary review from the Commission but was denied. Thus, Judge Calhoun‘s decision became a final order of the Commission on March 31, 2014. This petition for review followed.
II. DISCUSSION
This Court outlined the statutory and regulatory scheme underlying violations of OSHA standards in ComTran, 722 F.3d at 1306-08. As we described:
Under the law of our circuit, the Secretary will make out a prima facie case for the violation of an OSHA standard 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. This appeal concerns only the third and fourth elements of the prima facie case.
To satisfy the third element, the Secretary bears the burden of showing that the cited respondent is the employer of the exposed workers at the site. The Act defines employee as follows: “Employee means an employee of an employer who is employed in a business of his employer which affects commerce.”
To decide whether the party in question was an employer under common law, the Darden Court looked primarily to the hiring party‘s right to “control the manner and means by which the product [was] accomplished.” Factors pertinent to that issue include “the skill required for the job, the source of the instrumentalities and tools, the location of the work, the duration of the relationship between the parties, whether the hiring party has the right to assign additional projects to the hired party, the extent of the hired party‘s discretion over when and how long to work, the method of payment, the hired party‘s role in hiring and paying assistants, whether the work is part of the regular business of the hiring party, whether the hiring party is in business, the provision of employee benefits and the tax treatment of the hired party.” Darden, 503 U.S. at 322, 112 S.Ct. 1344, citing Community for Creative Non-Violence v. Reid, 490 U.S. 730; 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989). While no single factor under Darden is determinative, the primary
focus is whether the putative employer controls the workers.
Quinlan Enters., 24 BNA OSHC 2185, 2190-91 (No. 12-1698, 2014)(ALJ) (decision and order on remand) (citing Allstate Painting & Contracting Co., 21 BNA OSHC 1033, 1035 (No. 97–1631 & 97-1727, 2005)). As the Supreme Court has summarized, the “principal guidepost” in the Darden test is the “extent of control” the employer exercises over the employee. Clackamas Gastroenterology Assoc., P.C. v. Wells, 538 U.S. 440, 448, 123 S.Ct. 1673, 155 L.Ed.2d 615 (2003). Three other circuits have affirmed the application of the Darden test to OSHA violations. See Slingluff v. Occupational Safety & Health Review Comm‘n, 425 F.3d 861, 867-69 (10th Cir.2005); IBP, Inc. v. Herman, 144 F.3d 861, 865 (D.C.Cir.1998); Loomis Cabinet Co. v. Occupational Safety and Health Review Comm‘n, 20 F.3d 938, 941–42 (9th Cir.1994). One circuit has ruled that Darden‘s reasoning is not directly applicable to the Act. See Sec‘y of Labor v. Trinity Indus., Inc., 504 F.3d 397, 402 (3d Cir.2007) (“[Darden] was decided under ERISA and has no impact on the question of whether the scope of the OSH Act is broad enough to cover workers who are not employees under the common law definition.“). The parties here assume in their briefs that the Darden test applies. Therefore, we apply the Darden test here without deciding explicitly whether the Commission‘s interpretation of
To satisfy the fourth element of a prima facie case, the Secretary must prove the employer had knowledge of the violation. As we described in ComTran, the Secretary may do this in two different ways:
First, where the Secretary shows that a supervisor had either actual or constructive knowledge of the violation, such knowledge is generally imputed to the employer.... An example of actual knowledge is where a supervisor directly sees a subordinate‘s misconduct.... An example of constructive knowledge is where the supervisor may not have directly seen the subordinate‘s misconduct, but he was in close enough proximity that he should have.... In the alternative, the Secretary can show knowledge based upon the employer‘s failure to implement an adequate safety program, with the rationale being that—in the absence of such a program—the misconduct was reasonably foreseeable.
ComTran, 722 F.3d at 1307-08 (citations omitted). In this case, only the first way of proving employer knowledge—imputing knowledge from a supervisor—is at issue.
Appeals from final decisions of the Commission are reviewed directly by the courts of appeals.
In his petition for review, Quinlan makes three arguments. First, Quinlan argues that the Commission erred in finding that Pacheco and Vargas were employees of Quinlan at the time of the exposure. Second, Quinlan argues that the Commission erred in finding that Pacheco was a supervisor. Third, Quinlan argues that our recent decision in ComTran bars the imputation of Pacheco‘s knowledge of Vargas’ violative misconduct to Quinlan because Pacheco was simultaneously involved in violative misconduct. In light of the highly deferential standard for reviewing Commission decisions, and based on our review of the record, Quinlan‘s arguments cannot succeed.
A. Pacheco and Vargas Were Employees of Quinlan at the Time of Exposure
There is ample evidence to support the Commission‘s finding of fact that, at the relevant time, Pacheco and Vargas were employees of Quinlan and not of Kinney. The Commission made findings with respect to the relevant Darden factors and concluded that, at the relevant time, “Quinlan had every indicia of control over Pacheco and Vargas.” Id. at 2191.
The only non-frivolous aspect of Quinlan‘s challenge to the Commission‘s finding that Pacheco and Vargas were Quinlan employees is the argument that, at the direction of Charles Hall (Kinney‘s superintendent), Pacheco and Vargas performed work for Kinney, and, therefore Pacheco and Vargas temporarily became Kinney employees rather than Quinlan employees. Contrary to Quinlan‘s argument, there is ample evidence to support the Commission‘s finding that Charles Hall did not commandeer Pacheco and Vargas to work for Kinney. The evidence is somewhat closer with respect to the Commission‘s determination that the weight of the evidence failed to establish that the work Pacheco and Vargas were engaged in at the time of the inspection was outside the scope of Quinlan‘s contract. Id. In this regard, we are not persuaded that Quinlan has demonstrated that the Commission‘s finding lacks substantial supporting evidence. The strongest evidence presented by Quinlan was the testimony of Quinlan himself and the testimony of Hanniford. Both were discredited by the Commission. Supporting the Commission‘s finding is the fact that Pacheco, Quinlan‘s supervisor on the scene, apparently thought he had authority to perform the work and that the work was Quinlan‘s. Moreover, even if the work were technically outside the scope of Quinlan‘s contract, it is clear that the work was closely related to, even if not actually within, the technical confines of the contractual scope of work. Quinlan cites no authority for the proposition that such a minor deviation from the contractual scope of work would operate to destroy the clear employment relationship between Quinlan and its two employees.
Even if the work were not technically within Quinlan‘s contractual responsibilities, we believe that, as a matter of agency principles and as a matter of common sense, Pacheco, as Quinlan‘s supervisor on the site, would have authority to make such minor deviations in order to cooperate with the general contractor. This would be in the employer‘s best interest as a matter of common sense, and Quinlan never specifically instructed its employees on how to interact with the general contractor on the work site.
For the foregoing reasons, we reject Quinlan‘s challenge to the Commission‘s finding of fact that, at the relevant time,
B. Pacheco Was a Supervisor at the Time of Exposure
Similarly, we reject Quinlan‘s challenge to the Commission‘s finding of fact that, at the relevant time, Pacheco was a supervisor on the site on behalf of Quinlan. Quinlan Enters., 24 BNA OSHC at 2192 n. 1. As the Commission indicated, the evidence that Pacheco was Quinlan‘s supervisor on that day was “overwhelming.” Id. Quinlan‘s challenge to that fact finding is wholly without merit and thus is summarily rejected.
C. Imputation of a Supervisor‘s Knowledge of a Subordinate Employee‘s Misconduct when Supervisor is Simultaneously Involved in Misconduct.
We turn now to Quinlan‘s argument that the Commission erred by misapplying our decision in ComTran.
In ComTran, this Court reviewed a decision of the Commission finding that ComTran Group, a communications utilities company, violated the Act when one of its foremen was caught digging in a six-foot deep trench with an unprotected five-foot high spoil pile at the edge of the excavation. ComTran, 722 F.3d at 1308-09. ComTran conceded its foreman had violated the cited standards but asserted that the foreman‘s “rogue” misconduct could not be attributed to ComTran because the Secretary had failed to show that ComTran had knowledge of the violation. The Commission disagreed, finding that ComTran had knowledge of the violated standards by way of imputation.4 Because the foreman had actual knowledge of the excavation and spoil pile—the foreman himself had dug the excavation and placed the spoil pile at its edge—and because the foreman was a supervisory employee, the Commission imputed the foreman‘s knowledge of his own violative conduct to ComTran and thereby found the Secretary had satisfied her burden of proving employer knowledge. Secretary of Labor v. ComTran Grp., Inc., 23 BNA OSHC 2143, 2148 (No. 11-0646, 2011) (ALJ).
On petition for review, we reversed the Commission. We acknowledged that in the “ordinary case“—in which the Secretary proves that a supervisor had actual or constructive knowledge of a subordinate employee‘s violation—the general rule is that the knowledge of the supervisor is imputed to the employer. See ComTran, 722 F.3d at 1307-08 & n. 2. However, we carved out an exception to the general rule where the supervisor himself is the one who engaged in the conduct that violated the Act and the issue is whether to impute to the employer the supervisor‘s knowledge of his own misconduct. See id. at 1316. In that situation, we held that “the Secretary does not carry her burden and establish a prima facie case with respect to employer knowledge merely by demonstrating that a supervisor engaged in misconduct.” Id. Rather, in the situation where the supervisor‘s knowledge is of his own conduct in violation of the Act, “employer knowledge must be established, not vicariously through the violator‘s knowledge, but by either the employer‘s actual knowledge, or by its constructive knowledge based on the fact that the employer could, under the circumstances of the case, foresee the unsafe conduct of the supervisor [that is, with evidence of lax safety standards].” Id. (citing W.G. Yates & Sons Constr. Co., Inc. v. OSHRC, 459 F.3d 604 (5th Cir.2006)). We reasoned that to impute the supervisor‘s knowledge in such a circumstance would be “fundamentally unfair” because it would release the Secretary from her burden of proving employer knowledge. Id. at 1317. Such a result, we held, “would be arbitrary, capricious, and not in accordance with the law.” Id. at 1318.5
In the instant case, Quinlan argues that our holding in ComTran should be extended to prevent the imputation of a supervisor‘s knowledge of a subordinate employee‘s violative conduct to his employer when the supervisor is simultaneously involved in the same violative misconduct. In such a situation, Quinlan argues, the employer loses his “eyes and ears” and the supervisor‘s knowledge should not be imputed, regardless of whether the relevant knowledge is knowledge of his own conduct or knowledge of a subordinate employee‘s conduct.
Quinlan relies heavily on L.R. Willson & Sons, Inc. v. OSHRC, 134 F.3d 1235 (4th Cir.1998). There, the Fourth Circuit addressed a violation in which the underlying facts involved both a supervisor (Manley) and a subordinate employee (McVay) who were observed working on structural steel more than 80 feet above the ground without the fall protection required by regulation. Id. at 1237. The Commission affirmed a violation based on the theory that “[i]n establishing that an employer knew of the Act‘s requirements and knowingly disregarded them, the knowledge and conduct of a supervisory employee may be imputed to the employer.” L.R. Willson & Sons, Inc., 17 BNA OSHC 2059, 2063 (No. 94-1546, 1997). On petition for review, the Fourth Circuit reversed the Commission‘s decision because imputing a supervisor‘s knowledge of his own violation impermissibly relieved the Secretary of her burden of proving the prima facie case and shifted the burden of proof to the company. L.R. Willson, 134 F.3d at 1240-41. In so holding, it is not clear whether the opinion of the Fourth Circuit actually addressed and decided whether a supervisor‘s knowledge of a subordinate‘s conduct may be imputed when the supervisor and subordinate are simultaneously involved in violative conduct. The opinion appears to refer to the issue when it says:
The Secretary contends that Ocean Electric should not apply here, as Manley was accompanied by McVay, who was not a supervisory employee. However, in so doing the Secretary ignores the fact that the ALJ in this case found the prima facie case of a violation because of Manley‘s status, and then placed on Willson the burden of rebutting with the “affirmative defense” of employee misconduct, and the Commission affirmed.
Id. at 1240 n. 28. In other words, the Fourth Circuit may have declined to address the issue because the ALJ and the Commission shifted the burden of proof merely “because of Manley‘s status.” In any event, it is not clear whether the Fourth Circuit understood the force of the distinction between a supervisor acting alone in violation of the Act and a supervisor engaging in that misconduct while simultaneously supervising a subordinate who is also engaged in such misconduct. To the extent that the Fourth Circuit‘s
In our view, the situation with respect to the non-supervisory subordinate employee in this case is analogous to the ordinary situation in which imputation is clearly established. The classic situation in which knowledge of a supervisor is imputed to an employer is when the supervisor is on the scene looking on, sees the subordinate employee violating a safety rule, knows there is such a violation, but nonetheless allows it to continue. We see little difference in principle between that classic situation in which knowledge is imputed and the instant situation involving supervisor Pacheco and subordinate Vargas. In both cases, the supervisor sees the violation by the subordinate, knows there is a violation, but disregards the safety rule for one reason or another. We see little or no difference between the classic situation in which the supervisor sees the violation by the subordinate and disregards the safety rule, for example to expedite the job; and the instant situation in which the supervisor sees the violation and pitches in and works beside the subordinate to expedite the job.
The instant case is unlike the situation in ComTran involving a supervisor‘s knowledge of his own misconduct. In that circumstance, imputation was improper and unfair because it had the effect of relieving the Secretary of her burden of proving employer knowledge. “[I]f the Secretary is permitted to establish employer knowledge solely with proof of the supervisor‘s misconduct—notwithstanding that the employer did not know, and could not have known, of that misconduct—then the Secretary would not really have to establish knowledge at all. The mere fact of the violation itself (element 2) would satisfy the knowledge prong (element 4).” ComTran, 722 F.3d at 1317. In contrast, the situation here involving a supervisor and a subordinate employee who are simultaneously involved in violative misconduct does not present the same problem. Proof of the subordinate employee‘s misconduct does not by itself prove employer knowledge of such. The Secretary still bears the burden of proving employer knowledge, whether through a supervisor‘s actual or constructive knowledge of the subordinate employee‘s misconduct or through the employer‘s actual or constructive knowledge of the subordinate employ
Indeed, we believe there is dicta in the ComTran opinion itself which supports our holding:
We say that a supervisor‘s knowledge is “generally imputed to the employer” because that is the outcome in the ordinary case. The “ordinary case,” however, is where the supervisor knew or should have known that the subordinate employees were engaged in misconduct.
Id. at 1308 n. 2; see also id. at 1317 (drawing a “distinction between a supervisor‘s knowledge of a subordinate‘s misconduct (which everyone agrees is imputable to the employer) and knowledge of his own misconduct (which a clear majority of circuits have held is not [imputed])“). Indeed, ComTran, in this same footnote 2 at page 1308, cited with approval footnote 7 of the Fifth Circuit Yates opinion as noting an example of the “ordinary case.” Yates, 459 F.3d at 609 n. 7. In that footnote 7, the Yates opinion stated in dicta that the violation that was not appealed to the Fifth Circuit—i.e., the simultaneous violation by the two subordinate employees in the presence of the foreman—would constitute the “ordinary context” in which the “supervisor‘s knowledge ... is imputable.” The only difference between the facts underlying the instant case and the violation which the Yates dicta said would be imputed is that the violation of the two subordinates in Yates was slightly different from the simultaneous violation of their foreman, whereas the violation of foreman Pacheco in our case was identical to the violation of Vargas. However, we can perceive no difference in principle between the two situations. Although dicta, we believe ComTran‘s citation with approval of footnote 7 of the Yates opinion is an indication that the ComTran panel did not contemplate an extension of its holding to the very different situation in this case.
We conclude that the instant situation is more like the “ordinary case” than like the exceptional case addressed in ComTran. As noted above, there is little or no difference between this case and the classic case in “which everyone agrees [knowledge] is imputable to the employer.” ComTran, 722 F.3d at 1317. In both situations, the employer has “entrust[ed] to a supervisory employee its duty to assure employee compliance with safety standards.” Id. (citation omitted). Moreover, application to the instant facts of the established rule is entirely consistent with well-established agency principles. Quinlan has not suggested, nor could it, that Pacheco‘s disregard of Quinlan‘s safety rules disrupted his agency relationship with Quinlan.
For the foregoing reasons, Quinlan has failed to persuade us that the exception to the general rule of imputation we carved out in ComTran should be expanded to encompass the instant situation.
III. CONCLUSION
For the reasons stated above, we conclude that the Commission‘s findings of fact were supported by substantial evidence on the record considered as a whole and the Commission‘s conclusions of law were not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. Therefore, we deny the petition and affirm the Commission‘s decision.
AFFIRMED.