United States of America 

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 

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

Washington, DC 20036-3457 

SECRETARY OF LABOR, 

Complainant, 

v. OSHRC Docket No. 19-1467 

FAMA CONSTRUCTION, LLC, 

Respondent. 

REMAND ORDER 

Before: ATTWOOD, Chairman; and LAIHOW, Commissioner. 

BY THE COMMISSION: 

Following an inspection of a residential roofing project in Dawsonville, Georgia, the 

Occupational Safety and Health Administration issued Fama Construction, LLC, a roofing 

contractor, two citations alleging a total of three violations of various construction standards.1 On 

January 10, 2023, Administrative Law Judge John B. Gatto granted the Secretary’s motion for 

summary judgment and affirmed both citations.2 Fama filed a Petition for Discretionary Review, 

arguing that the judge erred in granting the Secretary’s motion. For the following reasons, we set 

aside the judge’s decision and remand this case for further proceedings consistent with this order. 

1 Citation 1, Item 1 alleges a serious violation of 29 C.F.R. § 1926.20(b)(2) for failing to conduct 

frequent and regular inspections of the worksite, materials, and equipment. Citation 1, Item 2 

alleges a serious violation of 29 C.F.R. § 1926.100(a) for failing to use head protection. Citation 

2, Item 1 alleges a repeat violation of 29 C.F.R. § 1926.501(b)(13) for failing to use fall protection. 

2 The Secretary proposed a total penalty of $153,778 for the alleged violations and the judge 

reduced the penalty amounts he assessed for the affirmed violations. We note, however, that one 

of the assessed penalty amounts—“$5,8347”—is jumbled in both places where it appears in the 

judge’s decision. 
 

 

 

 

 

 

 

 

 

 

 

DISCUSSION 

To prevail on a motion for summary judgment, the moving party must establish there is no 

genuine dispute as to any material fact.3 Fed. R. Civ. P. 56(a); Trico Techns. Corp., 17 BNA 

OSHC 1497, 1500-01 (No. 91-0110, 1996); Van Buren-Madawaska Corp., 13 BNA OSHC 2157, 

2159 & n.2 (No. 87-214, 1989) (consolidated). The party moving for summary judgment has the 

burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “When determining if there 

is a genuine factual dispute, the fact finder must resolve all ambiguities and draw all reasonable 

inferences in favor of the non-moving party.” Ford Motor Co.—Buffalo Stamping Plant, 23 BNA 

OSHC 1593, 1594 (No. 10-1483, 2011) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 

(1962)); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Lee v. Ferraro, 284 F.3d 

1188, 1190 (11th Cir. 2002). Accordingly, “not only must there be no genuine dispute as to the 

evidentiary facts, but there must also be no controversy as to the inferences to be drawn from 

them.” Ford Motor Co., 23 BNA OSHC at 1594. 

Here, the Secretary argued in his motion for summary judgment that “there is no genuine 

issue of material fact as to Fama’s status as the employer of the [exposed] roofers” and, in the 

alternative, that “Fama was, at minimum, a controlling employer of the . . . worksite.”4 In response 

to the motion, Fama claimed that it was neither the employer of the exposed workers nor was it 

“liable as a controlling employer because it was not the general contractor, [and not] the employer 

with general supervisory authority over the worksite, [or] the employer in the best position to 

assure correction of the hazard.” In granting the Secretary’s motion for summary judgment, the 

judge did not analyze whether Fama was the employer of the exposed workers. Rather, he 

concluded that there was no genuine dispute of material fact regarding Fama’s status as a 

controlling employer and that, as a controlling employer, no dispute that Fama was liable for the 

alleged violations. 

“On a multi-employer worksite, a controlling employer is liable for a contractor’s 

violations if the Secretary shows that [the controlling employer] has not taken reasonable measures 

3 Federal Rule of Civil Procedure 56(a) provides, in relevant part, that “[t]he court shall grant 

summary judgment if the movant shows that there is no genuine dispute as to any material fact and 

the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). See 29 C.F.R. 

§ 2200.40(j) (applying FRCP 56 to motions for summary judgment in Commission proceedings). 

4 We note that the Secretary’s motion was titled “Complainant’s Renewed Motion for Summary 

Judgment” because he had previously filed a motion for summary judgment, which was denied. 

2 
 

 

 

 

 

 

 

 

 

 

 

 

to ‘prevent or detect and abate the violations due to its supervisory authority and control over the 

worksite.’ ” Suncor Energy (U.S.A.) Inc., No. 13-0900, 2019 WL 654129, at *4 (OSHRC Feb. 1, 

2019) (citing Centex-Rooney Constr. Co., 16 BNA OSHC 2127, 2130 (No. 92-0851, 1994)); see 

Am. Wrecking Corp., 19 BNA OSHC 1703, 1709 (No. 96-1330, 2001) (consolidated) (finding that 

a controlling employer at a multi-employer worksite is “responsible for taking reasonable steps to 

protect the exposed employees of subcontractors”), aff’d in relevant part, 351 F.3d 1254 (D.C. 

Cir. 2003). It is well-established that a controlling employer has a “secondary safety role” and 

therefore its “duty to exercise reasonable care ‘is less than what is required of an employer with 

respect to protecting its own employees.’ ” Suncor, 2019 WL 654129, at *4, 6-7 (citing Summit 

Contractors, Inc., 22 BNA OSHC 1777, 1781 (No. 03-1622, 2009), which quotes OSHA 

Instruction CPL 02-00-124, Multi-Employer Citation Policy X.E.2 (Dec. 10, 1999) (emphasis 

added)); see, e.g., MEP X.E.2 (“[T]he controlling employer is not normally required to inspect for 

hazards as frequently . . . as the employer it has hired.”). 

We find that the record supports the judge’s conclusion that “there is no genuine issue of 

material fact in dispute that Fama is a controlling employer with regard to the cited worksite under 

the multi-employer worksite doctrine.” See, e.g., McDevitt Street Bovis Inc., 19 BNA OSHC 1108, 

1109-10 (No. 97-1918, 2000) (finding evidence of employer’s control at a multi-employer 

worksite includes its authority to demand compliance with safety requirements, stop 

subcontractor’s work, and remove subcontractors from the worksite). In evaluating, however, 

whether there was a genuine dispute of material fact with respect to Fama’s liability as a controlling 

employer, the judge did not apply the correct legal framework. While he recited the Commission’s 

governing precedent that a controlling employer’s compliance obligation is limited to taking 

“reasonable measures” to protect the exposed employees of another employer, the judge failed to 

analyze Fama’s liability under that framework to determine whether there is any genuine factual 

dispute regarding the company’s liability. Rather, the judge held Fama to the more stringent 

standard required of an employer whose own employees are exposed to the alleged violative 

conditions. We therefore remand this case to the judge to evaluate whether there are any issues of 

material fact regarding Fama’s liability as a controlling employer under the correct legal 

3 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

framework.5 Summit Contracting Grp., Inc., No. 18-1451, 2022 WL 1572848, at *4 (OSHRC 

May 10, 2022) (explaining that “[i]f a controlling employer has actual knowledge of a 

subcontractor’s violation, the controlling employer has a duty to take reasonable measures to 

obtain abatement of that violation . . . [and] [i]n the absence of actual knowledge, the pertinent 

inquiry is whether the controlling employer met its obligation . . . to exercise reasonable care, i.e., 

to take reasonable measures to prevent or detect the violative conditions.”); Suncor, 2019 WL 

654129, at *7 (controlling employer’s duty should be assessed “in light of objective factors—the 

nature of the work, the scale of the project, and safety history and experience of the contractors 

involved”). In doing so, the judge should specifically evaluate Fama’s liability as a controlling 

employer at the cited worksite based only on the facts and record evidence in this case.

6 

We also find the judge erred in rejecting Fama’s alleged affirmative defense of economic 

infeasibility on summary judgment grounds. According to Fama, compliance with the cited 

provisions would require it to hire an additional supervisor at a cost of $50,000 per year, an amount 

it claims would cause it to go out of business. In support of its argument, Fama points to a sworn 

statement given by its owner and three years of the company’s tax returns. The judge summarily 

rejected Fama’s assertion, stating “that for summary judgment purposes, Fama did not properly 

5 If the judge determines that Fama is not liable as a controlling employer under the correct legal 

framework, he will then need to determine if, as the Secretary has alleged, there is no genuine 

factual dispute regarding Fama’s liability as an exposing employer (i.e., no dispute that Fama is 

the employer of the exposed workers and failed to meet its obligations as an exposing employer). 

See S. Pan Servs. Co., 25 BNA OSHC 1081, 1085 (No. 08-0866, 2014) (“[A]n employer whose 

own employees are exposed to a hazard or violative condition — an ‘exposing employer’ — has 

a statutory duty to comply with a particular standard even where it did not create or control the 

hazard.”), aff’d, 685 F. App’x 692 (11th Cir. 2017) (unpublished). 

6 In his decision, the judge references another case he presided over involving Fama, which was 

recently affirmed by the Eleventh Circuit. See Fama Constr., LLC. v. U.S. Dept. of Labor, No. 

19-13277, 2022 WL 2375708 (11th Cir. June 30, 2022). The Eleventh Circuit found in that case, 

which was not decided on summary judgment grounds, that there was “[s]ubstantial evidence to 

support [the judge’s] finding that Fama ‘did not meet its duty to exercise reasonable care’ ” as a 

controlling employer, but neither affirmed nor reversed the judge’s finding that the workers were 

in fact Fama’s employees. Id. at *5. We note that the record in that case has not been made part 

of the record here and therefore, as the judge himself noted, has no bearing on his consideration of 

the Secretary’s summary judgment motion. See Fed. R. Civ. P. 56(c)(1)(A) (“A party asserting 

that a fact cannot be or is genuinely disputed must support that assertion by . . . citing to particular 

parts of materials in the record . . . .”) Indeed, the prior case involved violations that occurred at 

two different worksites with different work crew leaders who had different employment contracts 

with Fama. 

4 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

support its economic infeasibility claim and therefore, has not established a genuine issue of 

material fact exists regarding economic infeasibility.” But as noted above, in the context of a 

summary judgment motion, the burden is not on Fama to establish that there are disputed material 

facts. Rather, the burden is on the Secretary as the moving party to establish that there are none. 

Celotex Corp. v. Catrett, 477 U.S. at 325 (explaining that “the burden on the moving party may be 

discharged by ‘showing’ . . . that there is an absence of evidence to support the non[-]moving 

party’s case”); Anderson v. Liberty Lobby, Inc., 447 U.S. at 255. And, as noted, the judge is 

required to view “the facts in the light most favorable to” Fama, the non-moving party. Lee v. 

Ferraro, 284 F.3d at 1190; Skrtich v. Thornton, 280 F.3d 1295, 1299 (11th Cir. 2002). Thus, if 

the judge on remand determines that the violations should be affirmed after analyzing the record 

in this case under the correct legal framework, he must then consider Fama’s alleged economic 

infeasibility defense under the correct legal standard and determine whether the Secretary has met 

his burden of establishing that there are truly no disputed issues of material fact regarding the 

defense. 

For all these reasons, we set aside the judge’s decision and remand this case for further 

proceedings consistent with this order. If the judge determines that the Secretary’s motion for 

summary judgment should be denied because he has not met his burden of proving that there are 

no material facts in dispute, we direct the judge to hold a hearing on the merits. 

SO ORDERED. 

/s/ 

Cynthia L. Attwood 

Chairman 

/s/ 

Amanda Wood Laihow 

Dated: March 29, 2023 Commissioner 

5 
 

Some personal identifiers have been redacted for privacy purposes. 

UNITED STATES OF AMERICA 

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

Complainant, 

v. OSHRC Docket No. 19-1467 

FAMA CONSTRUCTION, LLC, 

Respondent. 

MEMORANDUM OPINION AND ORDER1 

Attorneys and Law firms 

Rachel M. Bishop, Attorney, Office of the Solicitor, U.S. Department of Labor, Atlanta, GA, for 

Complainant. 

Andrew N. Gross, Attorney, HB Next Corporation, Lawrenceville, GA, for Respondent. 

JUDGE: John B. Gatto, United States Administrative Law Judge. 

I. INTRODUCTION 

Pending in the court in the above-styled action (Fama II) is the Secretary of Labor’s 

renewed2 motion for summary judgment, which asserts that in light of the Eleventh Circuits3 

opinion in Fama Construction, LLC v. U.S. Department of Labor, No. 19-13277, 2022 WL 

1 The court issued an Errata Order on January 11, 2023, which amended footnote 1. 

2 The court concludes that even if there is a genuine dispute as to whether or not the workers were 

Fama’s employees, it will not affect the outcome and is therefore not a genuine material fact in 

dispute since the court concludes, infra, that Fama was a controlling employer. 

3 Under the Occupational Safety and Health Act of 1970 (the “Act”), 29 U.S.C. §§ 651-678, an 

employer may seek review in the court of appeals in the circuit in which the violation occurred, 

the circuit in which the employer’s principal office is located, or the District of Columbia Circuit. 

29 U.S.C. § 660(a). The Secretary may seek review in the circuit in which the violation occurred 

or in which the employer has its principal office. 29 U.S.C. § 660(b). This case arose in Georgia, 

where Fama also has its principal place of business, both in the Eleventh Circuit. In general, where 

it is highly probable that a Commission decision would be appealed to a particular circuit, the 

Commission has applied the precedent of that circuit in deciding the case, “even though it may 

differ from the Commission’s precedent.” Kerns Bros. Tree Serv., 18 BNA OSHC 2064, 2067 (No. 

96-1719, 2000). The court therefore applies the precedent of the Eleventh Circuit in deciding the 

case. 
 

 

 

 

 

 

 

 

 

 

 

 

2375708 (11th Cir. June 30, 2022) (Fama I) affirming this court’s decision that Fama was a 

controlling employer, the court should grant summary judgment to the Secretary. For the reasons 

indicated infra, after having reviewed all arguments and evidence submitted by the parties, and 

relevant law, and being otherwise fully informed, the court concludes there is no genuine material 

fact in dispute and therefore, the Secretary’s motion for summary judgment is GRANTED. 

II. UNDISPUTED FACTS4 

Fama is a company that provides roofing services. (Sec’y’s SUMF ¶ 9; Greenfield Decl. 

¶13). Fama is owned by Francisco Martinez (Sec’y’s SUMF ¶10; Martinez Dep. 8:16-18.) 

Martinez manages the company with [redacted], Cynthia Osorio. (Sec’y’s SUMF ¶ 11; Greenfield 

Decl. ¶ 13). Fama held the exclusive roofing contract for townhomes at Riley Place. (Sec’y’s 

SUMF ¶ 12; Greenfield Decl. ¶ 13). Fama offered the work on March 20, 2019, to a crew including 

Antonio Cardenas and Carlos Galicia. (Sec’y’s SUMF ¶ 13; Greenfield Decl. ¶¶ 13, 15; Ex. C). 

Cardenas and Galicia are longtime workers for Fama—their relationship with the company goes 

back over ten years (Sec’y’s SUMF ¶ 14; Greenfield Decl. ¶ 11). At the time of the inspection, the 

leader of the work crew was Antonio Ortega. (Sec’y’s SUMF ¶ 15; Greenfield Decl. ¶15; Ex. C). 

4 The Secretary filed Complainant’s Statement of Material Facts in Support of Its Renewed Motion 

for Summary Judgment (Sec’y’s SUMF) ¶¶ 1-80, along with declarations and deposition materials 

in support thereof. Fama filed Respondent Fama’s Response to the Secretary’s Statement of 

Material Facts (Resp’t’s Resp. to Sec’y’s SUMF), which did not address Sec’y’s SUMF ¶¶ 1-13, 

15-21, 23-30, 32-36, 38, 40, 42-46, 51, 54, 56-59, 62-64, and 67-79, which are all deemed 

undisputed. As to SUMF ¶¶ 14 and 22, the court deems them undisputed, except as to the 

Secretary’s use of the term “worker.” As to SUMF ¶¶ 31, 37, 39, 41, 47, 49, 50, 52, 53, 55, 60, 61, 

65, and 66, Fama did not support each of its numbered responses with a citation to evidence in the 

record proving such fact is in dispute, as required by the court’s Procedures and Practices in 

Conventional Cases, and therefore, the court concludes they too are undisputed. Fama also filed 

Respondent Fama’s Material Facts Statement in Response to the Secretary’s Motion for Summary 

Judgment, (Resp’t’s SUMF) ¶¶ 1-34. Resp’t’s SUMF ¶¶ 2-8, 10, 11, 13-16, and 18-23 were 

supported by citations to evidence from the trial record in Fama I, and therefore, were not 

supported by citations “to particular parts of materials in the record” as required by Rule 

56(c)(1)(A) of the Federal Rules of Civil Procedure. Therefore, Fama has failed to show Resp’t’s 

SUMF ¶¶ 2-8, 10, 11, 13-16, and 18-23 are undisputed. Resp’t’s SUMF ¶¶ 32-33 were not 

supported by any citation to the record as required by the court’s Procedures and Practices in 

Conventional Cases, and therefore, the court concludes Fama has failed to show they are 

undisputed. Fama’s remaining Resp’t’s SUMF were properly supported by citations to the current 

record but the court concludes those facts were not material ones. 

2 
 

 

 

 

 

 

 

 

 

 

The inspection was initiated on March 20, 2019, by OSHA Compliance Safety and Health 

Officer5 Marc Greenfield after he drove by the residential construction site at Riley Place and 

observed a worker moving shingle packets on the roof of a townhome unit approximately 25 feet 

above ground without fall protection. (Sec’y’s SUMF ¶¶ 1-2; Greenfield Decl. ¶¶ 4, 5; Ex. B, pp.1, 

3, 4, 6, 7). In the course of the resulting inspection, Greenfield observed another worker operating 

a shingle elevator from the ground without a hardhat. (Sec’y’s SUMF ¶ 4; Greenfield Decl. ¶ 6, 

Ex. B, pp.1-2). Based on his observations, Greenfield believed falling shingles from the workers 

on the roof above posed a danger to the worker on the ground. (Sec’y’s SUMF ¶ 5; Greenfield 

Decl. ¶ 6). Greenfield also observed the roofers working without fall protection for about 5 minutes 

and the shingle elevator operator working without a hardhat for about 5 minutes. (Sec’y’s SUMF 

¶ 6; Greenfield Decl. ¶ 9). The workers scattered when Greenfield approached, but he recognized 

two of them—Cardenas, the worker on the ground without a hardhat—and Galicia, the worker on 

the roof without fall protection. (Sec’y’s SUMF ¶ 7; Greenfield Decl. ¶¶ 10-11). Greenfield also 

knew Cardenas and Galicia were associated with Fama. (Sec’y’s SUMF ¶ 8; Greenfield Decl. ¶ 

11). 

Greenfield determined Fama was an employer engaged in residential construction 

activities—a fact Fama admits in its Answer to the Secretary’s Complaint. (Sec’y’s SUMF ¶ 44; 

Greenfield Decl. ¶ 22; Compl. ¶ 2; Answer ¶ 2). Osorio admitted to Greenfield that Fama did not 

conduct any inspections of its worksites. (Sec’y’s SUMF ¶ 45; Greenfield Decl.¶ 16; Ex. C). 

Fama’s contract with Ortega required Ortega to conduct safety inspections of worksites. (Sec’y’s 

SUMF ¶ 46; Ex. G, p.3). When Greenfield interviewed Ortega, Ortega denied understanding the 

English contract he had signed, denied he was present at the worksite the day of the inspection, 

and claimed it was Fama’s responsibility to ensure the workers comply with OSHA regulations. 

(Sec’y’s SUMF ¶ 47; Greenfield Decl. ¶¶ 18-19; Ex. J). Ortega and Cardenas also separately told 

Greenfield that the workers on site cannot tell each other what to do. (Sec’y’s SUMF ¶ 48; 

Greenfield Decl. ¶¶ 18-19; Ex. J). 

Osorio and Martinez admitted in March 2019 that Fama had the power to stop unsafe 

behavior and to take workers down from a roof. (Sec’y’s SUMF ¶ 28; Osorio Dep. 81:2-14, 82:2-

5 “Compliance Safety and Health Officer” means “a person authorized by the Occupational Safety 

and Health Administration, U.S. Department of Labor, to conduct inspections.” 29 C.F.R. § 

1903.22(d). 

3 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

8; Martinez Dep. 9:15-10:6, 32:1-11). Fama’s contract with Ortega—the leader of the work crew 

that included Cardenas and Galicia— required the crew to comply with OSHA regulations, to 

utilize a safety program, and to conduct weekly toolbox safety talks. (Sec’y’s SUMF ¶ 29; Ex. F, 

pp.3-5; Greenfield Decl.¶ 15). Fama could discipline workers or crew leaders for failing to comply 

with safety requirements, including imposing fines. (Sec’y’s SUMF ¶ 30; Ex. F, pp. 3-6; Osorio 

Dep. 126:10-127:2). The safety policies that Fama required its work crews to follow went beyond 

OSHA’s regulations, and included things like a prohibition against cell phone use while working 

on a roof. (Sec’y’s SUMF ¶ 31; Osorio Dep. 99:14-18). Fama also expected workers to report 

safety concerns and injuries to Fama. (Sec’y’s SUMF ¶ 32; Osorio Dep. 102:18-103:10; Ex. G). 

Martinez is the one that communicates with the builders on behalf of Fama and the workers. 

(Sec’y’s SUMF ¶ 39; Martinez Dep. 8:14–9:14; 32:16–25; Ex. H). Jonathan Hubbard, the builder’s 

superintendent on the worksite, indicated he believed the workers sent by Fama were “absolutely” 

Fama’s employees and was unaware that Fama used subcontractors. (Sec’y’s SUMF ¶ 40; Ex. H 

at 3). Cardenas informed OSHA that he also believed that he, Galicia, and Osorio were employees 

of Fama. (Sec’y’s SUMF ¶ 41; Ex. I). 

Fama admits it does not conduct safety inspections of its worksites. (Sec’y’s SUMF ¶ 50; 

Osorio Dep. 76:13-77:2; Martinez Dep. 29:18-25). Fama was also required to conduct inspections 

of its worksites as part of the settlement of Inspection No. 1065667. (Sec’y’s SUMF ¶ 23; 

Greenfield Decl. ¶ 16; Ex. E). Additionally, Fama was required to provide third party safety 

inspections of its worksites for a year, beginning within 90 days of full execution of that agreement 

on June 27, 2016, and was required to submit proof to the area office. (Sec’y’s SUMF ¶ 24; 

Greenfield Decl. ¶ 16; Ex. E). As of March 20, 2019, the OSHA Area Office had received no proof 

that those inspections were conducted. (Sec’y’s SUMF ¶ 25; Greenfield Decl. ¶ 16). 

In their depositions, Osorio and Martinez both confirmed that Fama does not conduct 

investigations to make sure workers are working safely. (Sec’y’s SUMF ¶ 27; Osorio Dep. 76:13-

77:2; Martinez Dep. 29:18-25). Fama’s violation of 29 C.F.R. § 1926.20(b)(2) was a serious one 

because when Fama fails to inspect jobsites for safety violations, workers are in danger of falling 

from high places and being hit by falling objects from above, which can result in death or serious 

physical harm. (Sec’y’s SUMF ¶ 53; Greenfield Decl. ¶ 24). 

Workers were subject to a possible danger of falling objects. (Sec’y’s SUMF ¶ 58; 

Greenfield Decl. ¶¶ 21, 26). Other crew members were engaged in hauling shingles high above 

4 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

Cardenas and created a danger that Cardenas would sustain a head injury if materials fell from the 

roof. (Sec’y’s SUMF ¶ 59; Greenfield Decl. ¶¶ 21, 26). Fama failed to require protective helmets. 

Osorio testified in her deposition that Cardenas told her he was not wearing a hardhat because the 

hat kept falling off when he put material on the elevator, to which Osorio replied to Cardenas that 

he needed to wear the hardhat—no excuses. (Sec’y’s SUMF ¶ 75; Osorio Dep. 71:15-24). Fama’s 

violation of 29 C.F.R. § 1926.100(a) was a serious one because workers were in danger of being 

struck by falling objects from above, which can result in death or serious physical harm. (Sec’y’s 

SUMF ¶ 54; Greenfield Decl. ¶ 24). 

Workers were also engaged in residential construction activities 6 feet or more above lower 

levels. (Sec’y’s SUMF ¶ 2; Greenfield Decl. ¶ 5; Ex. at pp.1, 3, 4, 6 and 7). Fama failed to ensure 

each employee engaged in residential construction activities 6 feet or more above lower levels was 

protected by guardrail systems, safety net system, or personal fall arrest system. (Id.). The work 

crew also admitted to not wearing fall protection harnesses on the day of the accident, because— 

they claimed—they did not wish to get tangled up while moving materials on the roof. (Sec’y’s 

SUMF ¶ 73; Osorio Dep. 62:19-63:17). Osorio recognized that the crew’s reason for noncompliance was not acceptable under OSHA’s standards. (Sec’y’s SUMF ¶ 74; Osorio Dep. 67:9-

68:4). Fama’s violation of 29 CFR 1926.50l(b)(l3) was a serious one since workers were in danger 

of falling from high places, which can result in death or serious physical harm. (Sec’y’s SUMF ¶ 

53; Greenfield Decl. ¶ 24). Fama received a citation for the same violation of 29 CFR 

1926.50l(b)(l3) in a prior inspection, which became a final order of the Commission on February 

19, 2018. (Sec’y’s SUMF ¶ 67; Greenfield Decl. ¶ 32). 

Since 2013, OSHA inspected Fama at least 7 separate times and in each inspection, OSHA 

issued a fall protection violation. (Sec’y’s SUMF ¶¶ 16, 17; Greenfield Decl. ¶¶ 12, 14). All of 

OSHA’s citations were affirmed as final orders. (Sec’y’s SUMF ¶ 18; Greenfield Decl. ¶¶ 14, 20; 

Ex. D). Greenfield personally conducted or accompanied OSHA on inspections of Fama six times 

prior to March 20, 2019, and he had already met Galicia and Cardenas on Fama worksites at least 

three times previously. (Sec’y’s SUMF ¶ 19; Greenfield Decl.¶ 14). Greenfield had previously 

spoken with Cardenas about the need to use fall protection and other safety requirements, and 

Cardenas indicated he understood the rules. (Sec’y’s SUMF ¶ 20; Greenfield Decl. ¶¶ 12, 14). 

Fama was aware it was not conducting inspections and was aware of prior safety violations 

by Cardenas and Galicia. (Sec’y’s SUMF ¶ 50; Greenfield Decl. ¶ 23). In addition, Fama did 

5 
 

 

 

 

 

 

 

nothing to ensure that workers were complying with the safety requirements of Ortega’s contract 

beyond verbally reminding crews that safety was their responsibility. (Sec’y’s SUMF ¶ 51; Osorio 

Dep.123:18-125:63). Discipline was a remote risk to workers because by not inspecting, Fama was 

not witnessing unsafe activity. (Sec’y’s SUMF ¶ 52; Osorio Dep.125:7-125:17). 

III. DISCUSSION 

Summary Judgment 

Under Rule 56(c) of the Federal Rules of Civil Procedure6 “[a] party may move for 

summary judgment, identifying each claim or defense — or the part of each claim or defense — 

on which summary judgment is sought.” Fed. R. Civ. P. 56(a). “The court shall grant summary 

judgment if the movant shows that there is no genuine dispute as to any material fact and the 

movant is entitled to judgment as a matter of law.” Id. A party asserting that a fact cannot be or is 

genuinely disputed must support the assertion by: 

(A) citing to particular parts of materials in the record, including depositions, 

documents, electronically stored information, affidavits or declarations, 

stipulations (including those made for purposes of the motion only), admissions, 

interrogatory answers, or other materials; or 

(B) showing that the materials cited do not establish the absence or presence of a 

genuine dispute, or that an adverse party cannot produce admissible evidence to 

support the fact. 

Fed. R. Civ. P. 56(e). 

Thus, “the purpose of Rule 56 is to enable a party who believes there is no genuine dispute 

as to a specific fact essential to the other side's case to demand at least one sworn averment of that 

fact before the lengthy process of litigation continues.” Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 

888–89 (1990). “[R]egardless of whether the moving party accompanies its summary judgment 

motion with affidavits, the motion may, and should, be granted so long as whatever is before the [ 

] court demonstrates that the standard for the entry of summary judgment, as set forth in Rule 

56(c), is satisfied.” Id., U.S. at 885 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 

6 Rule 56 is made applicable to Commission proceedings through section 12(g) of the Act, which 

mandates that “[u]nless the Commission has adopted a different rule, its proceedings shall be in 

accordance with the Federal Rules of Civil Procedure.” 29 U.S.C. § 661(g). Commission Rule 

40(j) provides that “[t]he provisions of Federal Rule of Civil Procedure 56 apply to motions for 

summary judgment.” 29 C.F.R § 2200.40(j). Thus, Rule 56 of the Federal Rule of Civil Procedure 

governs the disposition of this motion. 

6 
 

 

 

“[A] party opposing a properly supported motion for summary judgment ‘may not rest 

upon the mere allegations or denials of his pleading, but ... must set forth specific facts showing 

that there is a genuine issue for trial.’” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) 

(quoting First National Bank of Arizona v. Cities Service Co., 391 U.S. 253 (1968)). Thus, “the 

plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for 

discovery and upon motion, against a party who fails to make a showing sufficient to establish the 

existence of an element essential to that party's case, and on which that party will bear the burden 

of proof at trial.” Lujan, U.S. at 884 (quoting Celotex, 477 U.S. at 322). “Where no such showing 

is made, “[t]he moving party is ‘entitled to a judgment as a matter of law’ because the nonmoving 

party has failed to make a sufficient showing on an essential element of her case with respect to 

which she has the burden of proof.” Id. (quoting id., at 323). 

“Of course, a party seeking summary judgment always bears the initial responsibility” of 

informing the Court “of the basis for its motion, and identifying those portions of” the depositions, 

documents, electronically stored information, affidavits or declarations, stipulations (including 

those made for purposes of the motion only), admissions, interrogatory answers, or other materials, 

“which it believes demonstrates the absence of a genuine issue of material fact.” Celotex, 477 U.S. 

at 323 (internal quotation marks omitted). In making that determination, a court must view the 

evidence “in the light most favorable to the opposing party.” Tolan v. Cotton, 572 U.S. 650, 657 

(2014) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)); see also Anderson, 477 

U.S. at 255. “The mere existence of a scintilla of evidence in support of the [nonmovant’s] position 

[is] insufficient.” Ogwo v. Miami Dade County School Board, 702 F. App'x 809, 810 (11th Cir. 

2017) (quoting Anderson, supra). 

Thus, “in ruling on a motion for summary judgment, ‘[t]he evidence of the nonmovant is 

to be believed, and all justifiable inferences are to be drawn in his favor.”’ Tolan, 572 U.S. at 651 

(citing Anderson, supra). However, a Court must resolve any factual issues of controversy in favor 

of the non-moving party “only in the sense that, where the facts specifically averred by that party 

contradict facts specifically averred by the movant, the motion must be denied.” Lujan, 497 U.S. 

at 888. 

A “judge's function” at summary judgment is not “to weigh the evidence and determine the 

truth of the matter but to determine whether there is a genuine issue for trial.” Anderson, 477 U.S. 

at 249. If there is any evidence in the record from which a reasonable inference in favor of the 

7 
 

 

nonmoving party can be drawn, summary judgment is improper. Celotex, 477 U.S. 317. 

Conversely, if a review of the entire record could not lead a rational trier of fact to find for the 

nonmoving party, there is no genuine issue for trial and summary judgment is appropriate. 

Matsushita Elec. Ind. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). 

“As to materiality, the substantive law will identify which facts are material. Only disputes 

over facts that might affect the outcome of the suit under the governing law will properly preclude 

the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be 

counted.” Id., at 244. “Only disputes over facts that might affect the outcome of the suit under the 

governing law will properly preclude the entry of summary judgment.” Id., at 248. Further, “the 

issue of material fact required by Rule 56(c) to be present to entitle a party to proceed to trial is 

not required to be resolved conclusively in favor of the party asserting its existence; rather, all that 

is required is that sufficient evidence supporting the claimed factual dispute be shown to require a 

jury or judge to resolve the parties' differing versions of the truth at trial.” Id., at 248 (quoting First 

National Bank of Arizona v. Cities Service Co., 391 U.S. 253 (1968)). 

Multi-Employer Citation Policy 

As the Eleventh Circuit noted in Fama I, the Secretary's multi-employer citation policy, 

with its controlling employer rule, “provides that ‘[a]n employer who has general supervisory 

authority over [a] worksite,’ must ‘exercise reasonable care to prevent and detect violations on the 

site.’” Fama I, 2022 WL 2375708 at *4 (quoting OSHA Instruction CPL 02-00-124, MultiEmployer Citation Policy § X.E.1–2 (Decl. 10, 1999)). Under longstanding Commission 

precedent, “an employer may be held responsible for the violations of other employers where it 

could reasonably be expected to prevent or detect and abate the violations due to its supervisory 

authority and control over the worksite.” StormForce of Jacksonville, LLC, 2021 WL 2582530 at 

*3 (No. 19-0593, 2021) (internal quotation marks and brackets omitted). 

Fama argues the Fama I is not controlling because “the Eleventh Circuit’s decision in 

Fama I expressly noted that it did not consider a challenge to validity of OSHA’s multi-employer 

citation policy because Fama did not challenge it in Fama I.” (Resp’t’s Mem. in Resp. to Sec’y’s 

Mot. for Summ. J. at 1.) However, in the present case, “Fama does challenge OSHA's interpretation 

of §654(a)(2), and the procedural validity of OSHA's multi-employer citation policy.” (Id.) 

While it is true Fama did not challenge the validity of the multi-employer policy in Fama 

I at trial or on appeal before the Commission and was therefore precluded from raising it on appeal, 

8 
 

 

 

 

 

the Eleventh Circuit nonetheless held that even if Fama was not barred “from arguing that it could 

not be held liable as a controlling employer for safety violations by another company's employees, 

we would not be persuaded by its argument, which relies on Southeast Contractors, Inc. v. Dunlop, 

512 F.2d 675 (5th Cir. 1975).”7 Fama I, 2022 WL 2375708 at *4. “That decision preceded OSHA's 

adoption in 1976 of the multi-employer citation policy, which provides for liability based on 

supervisory authority over a jobsite.” Id. “As a result, the Southeast Contractors decision could 

not, and did not, hold the yet-to-be-adopted policy invalid.” Id. (citing e.g., Watts v. Bell-South 

Telecomms., Inc., 316 F.3d 1203, 1207 (11th Cir. 2003) (“Whatever their opinions say, judicial 

decisions cannot make law beyond the facts of the cases in which those decisions are 

announced.”)). Thus, the Eleventh Circuit found “[s]ubstantial evidence supports the conclusion 

that Fama was the roofers’ controlling employer.” Fama I, 2022 WL 2375708 at *1. 

Even assuming, arguendo, Fama is correct that Fama I is not controlling, the court is bound 

by longstanding Commission precedent. In 1976, the Commission first announced its multiemployer worksite doctrine. See Anning–Johnson Co., 4 BNA OSHC 1193 (No. 3694, 1976) and 

Grossman Steel & Aluminum Corp., 4 BNA OSHC 1185 (No. 12775, 1976). As the Commission 

has noted, the “grounding of the multi-employer citation policy in § 5(a)(2) of the Act has long 

been recognized by both the courts and the Commission.” Summit Contractors, Inc., 23 BNA 

OSHC 1196, 1203 (No. 05-0839, 2010), aff'd, 442 F. App'x 570 (D.C. Cir. 2011) (unpublished). 

In McDevitt Street Bovis., Inc., 19 BNA OSHC 1108, 1110 (No. 97-1918, 2000), the 

Commission also addressed whether Eleventh Circuit precedent precluded the Commission from 

applying its own multi-employer precedent on controlling employer liability and roundly rejected 

the notion. Id. at 1110-12. Likewise, recently in Summit Contracting Grp., Inc., 2022 WL 1572848, 

at *2 (No. 18-1451, 2022), the Commission noted that “the Eleventh Circuit has neither decided 

nor directly addressed the issue of multi-employer liability.” Id. 

This court is compelled to follow Commission precedent since a Commission judge is not 

free to decide cases in ways that directly conflict with Commission precedent. See Gulf & W. 

7 The Eleventh Circuit was created when the Fifth Circuit split on October 1, 1981. See Fifth 

Circuit Court of Appeals Reorganization Act of 1980, P.L. 96-452, 94 Stat. 1995. The Eleventh 

Circuit has adopted the case law of the former Fifth Circuit handed down as of September 30, 

1981, as its governing body of precedent. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th 

Cir. 1981). This body of precedent is binding unless and until overruled by the Eleventh Circuit 

en banc. Id. 

9 
 

 

 

 

 

 

Food Prods. Co., 4 BNA OSHC 1436, 1439 (No. 6804, 1976) (consolidated) (orderly 

administration of Act requires that administrative law judges follow Commission precedent). See 

also Grossman Steel & Aluminum Corp., 4 BNA OSHC 1185, 1188 (No. 4409, 1976) 

(Commission requires its judges to follow precedents established by the Commission, unless 

reversed by the Supreme Court); Maxwell Well Serv. Inc., d/b/a Circle M Well Servicing, 13 BNA 

OSHC 2109, 2110 (No. 87-1534, 1989) (“Commission’s judges are bound by Commission 

precedent.”). Accord Accu-Namics, Inc. v. Occupational Safety & Health Review Comm'n, 515 

F.2d 828, 834 (5th Cir. 1975) (the statutory scheme contemplates that the Commission is the 

factfinder, and the judge is an arm of the Commission for that purpose). 

As indicated supra, Osorio and Martinez admitted Fama had the power to stop unsafe 

behavior and to take workers down from a roof. And Fama’s contract with Ortega required the 

crew to comply with OSHA regulations, to utilize a safety program, and to conduct weekly toolbox 

safety talks. Fama also had the ability to discipline workers or crew leaders for failing to comply 

with safety requirements, including imposing fines. The safety policies that Fama required its work 

crews to follow went beyond OSHA’s regulations, and included things like a prohibition against 

cell phone use while working on a roof. And Fama also expected workers to report safety concerns 

and injuries to Fama. Martinez is also the one that communicates with the builders on behalf of 

Fama and the workers. The builder’s superintendent on the worksite also believed the workers sent 

by Fama were “absolutely” Fama’s employees. Cardenas also believed that he, Galicia, and Osorio 

were employees of Fama. 

These provisions conferred sufficient authority on Fama to qualify as a controlling 

employer under the Multi-Employer Citation Policy. Further, even without the authority conferred 

by the Ortega contract, Fama’s admission of actual control over safety, along with the (rare) 

examples of Fama exercising that authority, clearly establishes that Fama is a controlling 

employer. (See Osorio Dep. 81:2–14) (Fama employees will stop workers from engaging in unsafe 

activity they witness, including removing them from a roof for not wearing fall protection); id. 

82:2–8 (Fama expects workers to follow instructions of Martinez); id. 94:7–95:7 (calling/texting 

roof crew leader reminders to wear harnesses and hard hats on a monthly basis)). As such, there is 

no genuine dispute of material fact that Fama was a controlling employer with an obligation to 

protect the roofing workers even if they were not Fama’s employees. 

10 
 

 

 

 

“On a multi-employer worksite, a controlling employer is liable for a contractor's violations 

if the Secretary shows that it has not taken reasonable measures to ‘prevent or detect and abate the 

violations due to its supervisory authority and control over the worksite.’” Suncor, 2019 WL 

654129, at *4 (quoting Centex-Rooney Constr. Co., 16 BNA OSHC 2127, 2130 (No. 92-0851, 

1994); see Am. Wrecking Corp., 19 BNA OSHC 1703, 1709 (No. 96-1330, 2001) (consolidated) 

(noting that general contractor at multi-employer worksite “was responsible for taking reasonable 

steps to protect the exposed employees of subcontractors”); Grossman Steel & Aluminum Corp., 

4 BNA OSHC 1185, 1188 (No. 12775, 1976) (holding general contractor “responsible for 

violations it could reasonably have been expected to prevent or abate by reason of its supervisory 

capacity”). Based upon the undisputed facts infra, the court concludes the Secretary has established 

there is no genuine issue of material fact in dispute that Fama is a controlling employer with regard 

to the cited worksite under the multi-employer worksite doctrine. 

The Act 

The Eleventh Circuit has held the Act sought to assure that “‘every working man and 

woman in the Nation [had] safe and healthful working conditions.’” Reich v. Trinity Indus., Inc., 

16 F.3d 1149, 1151 (11th Cir.1994) (quoting 29 U.S.C. § 651(b)). “To implement its statutory 

purpose, Congress imposed dual obligations on employers. They must first comply with the 

‘general duty’ to free the workplace of all recognized hazards.” ComTran Grp., Inc. v. U.S. Dep't 

of Labor, 722 F.3d 1304, 1307 (11th Cir. 2013) (citing 29 U.S.C. § 654(a)(1)). “They also have a 

‘special duty’ to comply with all mandatory health and safety standards.” Id. (citing id. at § 

654(a)(2)). 

In the Eleventh 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 ... (4) that the employer knowingly 

disregarded the Act's requirements.” Fama I, 2022 WL 2375708, at *3 (citation omitted). 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.” Quinlan v. Sec'y, U.S. Dep't of Labor, 812 F.3d 832, 

836 (11th Cir. 2016). However, an employment relationship “is not the only basis for liability 

when a company fails to take reasonable steps to protect worker safety. ”Fama I, 2022 WL 

2375708, at *3. The court notes that when the Secretary asked Fama in an Interrogatory to state, 

“all facts...upon which Respondent relies in support of its position that it did not commit the 

11 
 

 

 

violations contained in this docket,” Fama listed no facts disputing the allegations of violations. 

(Sec’y’s SUMF ¶ 71; Ex. K). 

Citation 1, Item, 1 

Citation 1, Item, 1 asserts Fama violated 29 CFR 1926.20(b)(2) when it “did not initiate 

and maintain programs which provided for frequent and regular inspections of the job site, 

materials and equipment to be made by a competent :person(s):” (Compl. Ex. A.) 29 C.F.R. § 

1926.20(b)(2) appear in Part 1926 of 29 C.F.R., entitled “Safety and Health Regulations for 

Construction.” 29 C.F.R. § 1910.12(a) provides that “[t]he standards prescribed in Part 1926 of 

this chapter ... shall apply ... to every employment and place of employment of every employee 

engaged in construction work.” “Construction work” is defined to be “work for construction, 

alteration, and/or repair, including painting and decorating.” 29 C.F.R. § 1910.12(b). The court 

concludes there is no genuine material fact in dispute that Fama is engaged in construction work, 

and therefore, that 29 C.F.R. § 1926.20(b)(2) applies. 

That standard requires Fama to initiate and maintain a program to “provide for frequent 

and regular inspections of the job sites, materials, and equipment to be made by competent persons 

designated by the employers.” 29 C.F.R. § 1926.20(b)(2). As the undisputed facts recounted supra 

indicate, Fama did not have a program providing for frequent and regular inspections of the 

worksite, materials, and equipment. And Fama admits it does not conduct safety inspections of its 

worksites. Fama was also required to conduct inspections of its worksites as part of the settlement 

of Inspection No. 1065667. Additionally, Fama was required to provide third party safety 

inspections of its worksites for a year, beginning within 90 days of full execution of that agreement 

on June 27, 2016, and was required to submit proof to the area office, and as of March 20, 2019, 

OSHA had not received any proof that those inspections had been conducted. 

In their depositions, Osorio and Martinez both confirmed that Fama does not conduct 

investigations to make sure workers are working safely. Therefore, the court concludes there is no 

genuine material fact in dispute that Fama violated 29 C.F.R. § 1926.20(b)(2). There is also no 

genuine material fact in dispute that Fama’s violation of 29 C.F.R. § 1926.20(b)(2) was a serious8 

8 A “serious violation shall be deemed to exist in a place of employment if there is a substantial 

probability that death or serious physical harm could result from a condition which exists, or from 

one or more practices, means, methods, operations, or processes which have been adopted or are 

in use, in such place of employment unless the employer did not, and could not with the exercise 

of reasonable diligence, know of the presence of the violation.” 29 U.S.C. § 666(k). 

12 
 

 

 

 

 

one because when Fama failed to inspect jobsites for safety violations, workers were in danger of 

falling from high places and being hit by falling objects from above, which could result in death 

or serious physical harm. 

Citation 1, Item, 2 

Citation 1, Item, 2 asserts Fama violated 29 CFR 1926.lO0(a) when “[e]mployees working 

in areas where there was a possible danger of head injury from impact, or falling or flying objects, 

or from electrical shock and burns, were not protected by protective helmets[.]” (Id.) The court 

concludes there is no genuine material fact in dispute that 29 C.F.R. § 1926.100(a) applies since 

workers were subject to a possible danger of falling objects. As indicated supra, other crew 

members were engaged in hauling shingles above Cardenas and created a danger that Cardenas 

would sustain a head injury if the shingles fell from the roof. The court also concludes there is no 

genuine material fact in dispute that Fama violated 29 C.F.R. § 1926.100(a) when it failed to 

require protective helmets. Osorio testified in her deposition that Cardenas told her he was not 

wearing a hardhat and Osorio replied back to Cardenas that he needed to wear the hardhat—no 

excuses. There is also no genuine material fact in dispute that Fama’s violation of 29 C.F.R. § 

1926.100(a) was a serious one because workers were in danger of being struck by falling objects 

from above, which can result in death or serious physical harm. 

Citation 2, Item, 1 

Citation 2, Item, 1 asserts Fama committed a Repeat violation of 29 CFR 1926.50l(b)(l3) 

when “[e]ach employee(s) engaged in residential construction activities 6 feet (1.8 m) or more 

above lower levels were not protected by guardrail systems, safety net system, or personal fall 

arrest system, nor were employee(s) provided with an alternative fall protection measure under 

another provision of paragraph 1926.501 (b)[.]” (Id.) There is no genuine material fact in dispute 

that 29 CFR 1926.50l(b)(l3) applies since workers were engaged in residential construction 

activities 6 feet or more above lower levels. There is also no genuine material fact in dispute that 

Fama violated 29 CFR 1926.50l(b)(l3) when it failed to ensure each employee engaged in 

residential construction activities 6 feet or more above lower levels was protected by guardrail 

systems, safety net system, or personal fall arrest system. 

The work crew also admitted to not wearing fall protection harnesses on the day of the 

accident. Osorio recognized that the crew’s reason for non-compliance was not acceptable under 

OSHA’s standards. There is no genuine material fact in dispute that Fama’s violation of 29 CFR 

13 
1926.50l(b)(l3) was a serious one since workers were in danger of falling from high places, which 

can result in death or serious physical harm. There is also no genuine material fact in dispute this 

violation was a Repeated one since there is no dispute Fama received a citation for the same 

violation in a prior inspection, which became a final order of the Commission on February 19, 

2018. “A violation is repeated if, at the time it occurred, ‘there was a Commission final order 

against the same employer for a substantially similar violation.’” Bunge Corp. v. Sec'y of Labor, 

638 F.2d 831, 837 (5th Cir.1981) (quotation marks and citation omitted). 

Since 2013, OSHA inspected Fama at least 7 separate times and in each inspection, OSHA 

issued a fall protection violation. All of OSHA’s citations were affirmed as final orders. Greenfield 

personally conducted or accompanied OSHA on inspections of Fama six times prior to March 20, 

2019, and he had already met Galicia and Cardenas on Fama worksites at least three times 

previously. Greenfield had previously spoken with Cardenas about the need to use fall protection 

and other safety requirements, and Cardenas indicated he understood the rules. 

Knowledge of Violations 

There is no genuine material fact in dispute that Fama had knowledge of these three 

violations because the company was aware it was not conducting inspections and was aware of 

prior safety violations by Cardenas and Galicia. Fama did nothing to ensure that workers were 

complying with the safety requirements of Ortega’s contract beyond verbally reminding crews that 

safety was their responsibility. And discipline was a remote risk to workers because by not 

inspecting, Fama was not witnessing unsafe activity. 

Economic Infeasibility Claim 

As to Fama’s economic infeasibility claim in its amended Answer, Fama asserts that 

enforcing OSHA regulations would require the hiring of additional supervisory personnel that 

Fama asserts it cannot afford. (Sec’y’s SUMF ¶ 77; Fama’s Am. Answer; Ex. L). Martinez 

asserted, without any support, that the cost of hiring a competent supervisor to oversee the work 

of labor subcontractors would be at least $50,000. (Sec’y’s SUMF ¶ 78; Ex. L, ¶ 6). Based on that 

$50,000 estimation and three years of tax returns, Fama asserts that it could not afford hiring a 

supervisor and doing so would affect its ability to win contract bids, causing it to go out of business. 

(Sec’y’s SUMF ¶79; Ex. J, ¶¶ 7-10; Fama Redacted Tax Returns from 2017-2019, Ex. M). 

Martinez did not address the reason he believes Fama would have to hire new personnel to be 

compliant with the cited OSHA regulations. (Sec’y’s SUMF ¶ 80; Ex. L). The court concludes that 

14 
 

 

 

 

for summary judgment purposes, Fama did not properly support its economic infeasibility claim, 

and therefore, has not established a genuine issue of material fact exists regarding economic 

infeasibility. 

IV. PENALTY ASSESSMENTS 

The Act provides that an employer who commits a “serious” violation may be assessed a 

civil penalty in an amount up to $7,000 and an employer who commits a “repeated” violation may 

be assessed a civil penalty in an amount not to exceed $70,000. See 29 U.S.C. §§ 666(a), (b). 

However, the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended by the Federal 

Civil Penalties Inflation Adjustment Act Improvements Act of 2015, requires the Department of 

Labor to annually adjust its civil money penalty levels for inflation no later than January 15 of 

each year. Therefore, at the time of the issuance of the citations on August 28, 2019, the maximum 

penalty for a serious violation was $13,260 and the maximum penalty for a repeated violation was 

$132,598. See 29 CFR §§ 1903.15(d)(2), (3) (2019); see also 84 FR 219, Jan. 23, 2019. 

The Commission is empowered to “assess all civil penalties” provided in the Act, “giving 

due consideration to the appropriateness of the penalty with respect to the size of the business of 

the employer being charged, the gravity of the violation, the good faith of the employer, and the 

history of previous violations.” 29 U.S.C. § 666(j). The Commission has held that “generally 

speaking, the gravity of a violation is the primary element in the penalty assessment.” J.A. Jones 

Constr., 15 BNA OSHC 2201, 2216 (No. 87-2059, 1993) (citing Trinity Indus., Inc., 15 BNA 

OSHC 1481, 1483 (No. 88-2691, 1992)). “Moreover, while gravity is normally the primary factor 

in assessing appropriate penalties, an employer's substantial history of prior violations may skew 

the importance of gravity in the final penalty determination.” Quality Stamping Prods. Co., 16 

BNA OSHC 1927, 1929 (No. 91-414, 1994). 

As to the size of the company, in Fama I, the company employed fourteen to nineteen 

people, including office employees and work crews. Fama Constr., LLC, 2019 WL 3210613, at 

*27 (Nos. 17-1173, 17-1180, 2019).

9 The court concludes the same number of employees worked 

9 On the issue of whether the workers were employed by Fama, Fama stipulates “the relevant legal 

arguments and supporting evidence were adequately advanced in the filings in Fama I, both before 

the Commission [OSHRC Docket No. 17-1173 and 17-1180] and the Eleventh Circuit [2022 WL 

2375708 (11th Cir. June 30, 2022)], and ]were] incorporated by reference [into Fama’s 

Memorandum in Response to the Secretary’s Motion for Summary Judgment] so as not to 

unnecessarily clutter the record with extensive repetitive testimony and repeated argument.” 

15 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

for Fama in the present case. Although OSHA’s proposed penalty assessments did not include a 

reduction for size, the court concludes based upon size, a 60% reduction is appropriate. 

Fama is not entitled to a good faith reduction since it has not implement an effective 

workplace safety and health management system. As to its history of violations, the court finds an 

increase of 10% is appropriate for each violation given Fama’s previous violations within the last 

five years, and its repeated, blatant disregard of the most basic construction standards, which is 

necessary to cause Fama to appreciate the vital importance of complying with OSHA regulations, 

E.L. Davis Contrac. Co., 16 BNA OSHC 2046, 2053 (No. 92-35, 1994), and hopefully, to preclude 

their being assumed by Fama as simply another cost of doing business. Quality Stamping Prods. 

Co., 16 BNA OSHC 1927, 1929 (No. 91-414, 1994).The gravity and final penalty assessments 

will be addressed separately for each violation infra. 

In Citation 1, Item 1 OSAH assessed the violation of 29 C.F.R. § 1926.20(b)(2) as high 

gravity based upon a high severity and greater probability, given the considerable danger inherent 

in roofing work and Fama’s total abdication of its inspection duties. (Sec’y’s SUMF ¶ 55; 

Greenfield Decl. ¶ 25). The court agrees with that assessment. OSHA proposed a fine of $13,127 

for the violation. (Sec’y’s SUMF ¶ 57; Greenfield Decl. ¶ 25). Giving due consideration to the 

appropriateness of the penalty with respect to the size, the gravity of the violation, lack of good 

faith, and history of repeat and willful violations, the court concludes a penalty of $5,8347 is 

appropriate. 

In Citation 1, Item 2 OSAH assessed the violation of 29 C.F.R. § 1926.100(a) as moderate 

gravity based upon a high severity but moderate probability. (Sec’y’s SUMF ¶ 63; Greenfield Decl. 

¶ 29). The court agrees with that assessment. OSHA proposed a penalty of $9,377 for this violation. 

(Sec’y’s SUMF ¶ 64; Greenfield Decl. ¶ 29). Giving due consideration to the appropriateness of 

the penalty with respect to the size, the gravity of the violation, lack of good faith, and history of 

repeat and willful violations, the court concludes a penalty of $4,167 is appropriate. 

In Citation 2, Item 1 OSAH assessed the violation of 29 CFR 1926.50l(b)(l3) as high 

gravity based upon a high severity and greater probability. (Sec’y’s SUMF ¶ 68; Greenfield Decl. 

¶ 33). Considering the height of the roof, its apparent steepness, and the activity of hauling shingle 

packages which could distract or unbalance a worker from his footing, the court agrees with that 

(Resp’t’s Mem. In Resp. to Sec’y’s Mot. Summ. J. at 17). 

16 
 

 

 

 

 

 

 

assessment. OSHA proposed a fine of $131,274 for the violation of 29 CFR 1926.50l(b)(l3). 

(Sec’y’s SUMF ¶ 70; Greenfield Decl. ¶ 33). Giving due consideration to the appropriateness of 

the penalty with respect to the size, the gravity of the violation, lack of good faith and history of 

repeat and willful violations, the court concludes a penalty of $58,343 is appropriate. Accordingly, 

V. ORDER 

IT IS HEREBY ORDERD THAT considering the evidence in the light most favorable to Fama, 

and believing such evidence put forth by Fama, and drawing all justifiable inferences in its favor, 

as required when deciding a summary judgment motion, the court concludes there is no genuine 

material fact in dispute and therefore, the Secretary’s motion for summary judgment is 

GRANTED, the trial is cancelled, Citation 1, Items 1 and 2 and Citation 2 Item 1 are AFFIRMED, 

and the court assesses penalties of $5,8347, $4,167, and $58,343 for Citation 1, Item 1, Citation 1, 

Item 2, and Citation 2 Item 1 respectively. 

SO ORDERED. 

/s/ 

JOHN B. GATTO, Judge 

Dated: January 11, 2023 

Nunc Pro Tunc to 

January 10, 2023 

Atlanta, GA 

17