[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 19-13359

Non-Argument Calendar

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Agency No. 17-0819

EDWIN TAYLOR CORPORATON, 

 Petitioner,

versus

U.S. DEPARTMENT OF LABOR,

 Respondent.

________________________

Petition for Review of a Decision of the

Occupational Safety and Health Review Commission

________________________

(May 19, 2020)

Before JORDAN, GRANT, and LUCK, Circuit Judges.

PER CURIAM: 

The employee of a subcontractor for Edwin Taylor Corporation fell to his 

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

Occupational Safety and Health Administration opened an investigation into the 

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

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

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

contested the citation before the Occupational Safety and Health Review 

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

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

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

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

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

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

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

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

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

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

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

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

subcontractors installed fall protection at the worksite. 

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

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Commission’s decision. 

I

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

condominiums. Paul Barros and Bronson Ostrander were superintendents of the 

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

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

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

were responsible for enforcing safety protocols and correcting any potential health 

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

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

then subcontracted Francisco Sanchez Hernandez to assist with the framing.

During construction, workers built the condominium frames higher than six 

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

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

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

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

protection one week later. 

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

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

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

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

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

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

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

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

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

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

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

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

the penalty by 20% to $101,339.20. 

II

Commission decisions “are entitled to considerable deference on appellate 

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

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

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

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

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

evidence is more than a scintilla and is such relevant evidence as a reasonable person 

would accept as adequate to support a conclusion.” J.A.M. Builders, Inc. v. 

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

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

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

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

III

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

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

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

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

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

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

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

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

Edwin Taylor argues that the record lacks evidence of willfulness and 

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

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

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

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

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

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

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

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

diligence. 

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

engaging in dangerous activity was not a violation because his impermissible 

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

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

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

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

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

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

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

supported by the substantial evidence. 

We disagree. 

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

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

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

willful violation, 

proof must be adduced either that (1) “[the] employer knew of an 

applicable standard or provision prohibiting the conduct or condition 

and consciously disregarded the standard,” or (2) that, if the employer 

did not know of an applicable standard or provision’s requirements, it 

exhibited such “reckless disregard for employee safety or the 

requirements of the law generally that one can infer that . . . the 

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employer would not have cared that the conduct or conditions violated 

[the standard].”

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

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

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

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

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

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

uphold it here. 

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

consider whether substantial evidence supports her conclusions. After a thorough

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

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

here as willful. 

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

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

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

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

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

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

worksite.” Id. at 8–9. Edwin Taylor further admitted that “[Mr.] Barros was capable 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2. 

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

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

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

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

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

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

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

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

9–10

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

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

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

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

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

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

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

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

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

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

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

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

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

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

though the needed equipment was at the job site. 

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

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

Edwin Taylor committed three willful OSHA violations.1

IV

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

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

resulting $101,399.20 penalty. 

AFFIRMED.

1 Edwin Taylor also argues that the ALJ abused its discretion by denying its request for a posthearing deposition of Mack Darr about the installation of guardrails. We have reviewed the record 

and find that Edwin Taylor has failed show the requisite “positive showing of prejudice” needed 

to support a finding that the ALJ abused her discretion. See Daylight Grocery Co. v. NLRB, 678 

F.2d 905, 910 (11th Cir. 1982). We therefore conclude that substantial evidence supports the ALJ's 

decision.

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