United States of America 

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 

 

 

OSHRC Docket No. 13-2043

ORDER ON RESPONDENT’S MOTION FOR SANCTIONS 

This matter comes before the Court on Respondent’s Motion for Sanctions pursuant to 

Commission rules 101(a) and 104(c). See 29 C.F.R. §§ 2200.101(a), 104(c). Specifically, 

Respondent contends that Complainant pursued an alleged violation as to the auxiliary cable on 

the Terex HC 165 crane even though he had information that the violation was remedied on a 

date outside of the Act’s six-month statute of limitations. Accordingly, Respondent requests the 

Court to strike the Complaint and seeks personal sanctions of suspension and disbarment against 

Complainant’s counsel. The Court has reviewed the record and the parties’ respective briefs and 

finds that Respondent has failed to prove that Complainant’s conduct justifies the imposition of 

sanctions. 

“The Commission has held that the ultimate sanction of dismissal should be imposed on 

a party only when that party has been guilty of contumacious conduct or the other party has been 

prejudiced in preparing or presenting its case by the conduct of the noncomplying party.” 

Sealtite Corp., 15 BNA OSHC 1130 (No. 88-1431, 1991) (citing Noranda Aluminum, Inc., 9 

BNA OSHC 1187, 1189 (No. 79–1059, 1980)). The Fifth Circuit has noted that “it is not a 

SECRETARY OF LABOR, 

 

 Complainant,

 

 v. 

MOUNTAIN STATES CONTRACTORS, 

LLC.,

 

 Respondent.
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party’s negligence—regardless of how careless, inconsiderate, or understandably exasperating—

that makes conduct contumacious; instead it is the ‘stubborn resistance to authority’ which 

justifies a dismissal with prejudice.” Millan v. USAA Gen. Indem. Co., 546 F.3d 321 (5th Cir. 

2008) (internal citations omitted). 

The facts that bear on the issue of whether Complainant committed contumacious 

conduct warranting sanctions is as follows: During the course of her inspection, CSHO Sotak 

was apparently told that the auxiliary cable had been replaced. She made a note of this on a copy 

of Respondent’s Daily Crane Inspection report dated February 19, 2013. At some point 

thereafter, CSHO Sotak was contacted by Respondent’s safety manager, who told her that the 

cable had not been replaced since it was purchased in 2011. On the basis of that information, 

Complainant pursued a violation of both the boom cable, which broke on May 21, 2013, and the 

auxiliary cable. At trial, evidence was introduced that definitively showed the auxiliary cable 

being repaired on April 26, 2013. 

First, merely because Respondent has had to spend extra time and money to defend its 

legal position does not constitute prejudice. “[A]s long as the party opposing an amendment has 

adequate opportunity to prepare and present its defense to the amended allegations, any delay in 

making an amendment, even though trial-preparation time and expense may have been directed

to issues eliminated from the case, does not con statute prejudice that warrants denying the 

amendment.” See Brown & Root, Inc., 8 BNA OSHC 1055 (No. 76-3942, 1980). Respondent 

had ample opportunity to prepare and present its defense; in fact, it had enough time to file an 

amended Answer to the Complaint. Thus, the Court finds no prejudice on this basis. 

Second, the Court does not find that the actions of CSHO Sotak rise to the level of 

contumacious conduct. She was presented with conflicting stories regarding the condition of the 
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cable and chose to rely on the information provided by the safety manager. As is the case in 

many investigations, the CSHO must weigh conflicting evidence and gauge credibility. That she 

chose one story over another and happened to be wrong does not constitute contumacious 

conduct. 

Third, the Court does not find that Complainant attempted to purposefully conceal 

exculpatory evidence from Respondent. The Court accepts as reasonable Complainant’s 

explanation regarding the redaction of the CSHO’s notes from the daily inspection logs; namely, 

that he provided the Court with a clean and authentic copy of the examination record acquired by 

CSHO Sotak during her investigation. Further, Respondent was in no way prejudiced by this 

fact. First, Respondent had been provided with the document with CSHO Sotak’s notes 

indicating that the auxiliary cable had been replaced and introduced that document into evidence. 

Second, Respondent was in possession of documents that clearly indicated when the auxiliary 

cable was ordered, purchased, and installed. All of those documents say far more than an 

unidentified hearsay statement that is memorialized in the margins of a document procured 

during an investigation. While Complainant’s actions in this regard certainly have the outward 

appearance of questionable conduct, the Court does not find that it rises to the level of 

contumacy. Further, the Court finds that Respondent was not prejudiced by its use. 

Fourth, CSHO Sotak’s answers and explanations in response to direct- and crossexamination at trial do not illustrate contumacious conduct. While CSHO Sotak may not have 

stated the complete truth in response to whether someone had ever told her the auxiliary cable 

had been replaced, that could be attributable to faulty memory as much as it could be to a 

purposeful intent to deceive. Further, Respondent had the opportunity (and took it) to crossexamine CSHO Sotak as to what she was told, whereupon she admitted that she had been told 
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that the auxiliary cable had been replaced, but that she had not received any documentation 

supporting that assertion. The structure of a trial allows for both direct- and cross-examination 

for just this reason. Accordingly, the Court finds that Complainant did not engage in 

contumacious conduct and that Respondent was not prejudiced as to this issue. 

Finally, the Court finds that Complainant’s decision to pursue its allegation that a 

violation existed on the auxiliary cable does not warrant sanctions. To be sure, the Court made 

clear its inclinations regarding an extension or tolling of the statute of limitations in this case. 

That said, Complainant was not obligated thereby to abandon those theories merely because the 

Court provided him with additional time to reconsider such arguments. In light of the decisions 

of the D.C. Circuit in AKM LLC dba Volks Constructors v. Sec’y of Labor, 675 F.3d 752, 755 

(D.C. Cir. 2012) and the Supreme Court in Gabelli v. S.E.C., 133 S. Ct. 1216 (2013), it would 

appear that the determination of whether and how the Act’s statute of limitations can be tolled or 

extended is ripe for discussion in the context of this case. According to the Model Rules of 

Professional Conduct, which are referenced in Commission Rule 104, “A lawyer shall not bring 

or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and 

fact for doing so that is not frivolous, which includes a good faith argument for an extension, 

modification or reversal of existing law.” Model Rules of Professional Conduct 3.1 (emphasis 

added); see also 29 C.F.R. § 2200.104. There is clearly a basis in Commission case law for 

tolling or extending the statute of limitations. See, e.g., Sun Ship, Inc., 12 BNA OSHC 1185 

(No. 80-3192, 1985); see also Yelvington Welding Svc., 6 BNA OSHC 2013 (No. 15958, 1978). 

That Complainant’s argument may rest on tenuous grounds, especially in light of the Supreme 

Court’s decision in Gabelli, does not make it frivolous. To hold otherwise would serve to put a 

damper on another attorney obligation—zealously advocating for your client. 
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In light of the foregoing, the Court finds that Respondent’s claim that Complainant 

engaged in contumacious conduct is without merit. Further, the Court finds that Respondent will 

not be prejudiced by allowing this case to be decided on the merits. Accordingly, Respondent’s 

Motion for Sanctions is DENIED. 

 SO ORDERED

 /s Patrick B. Augustine

 ____________________________ 

 Patrick B. Augustine 

 Judge, OSHRC 

Date: March 31, 2015 

Denver, Colorado