United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1924 Building - Room 2R90, 100 Alabama Street, S.W.

Atlanta, Georgia 30303-3104

Secretary of Labor,

 Complainant

 v. OSHRC Docket No. 20-0691

Harvestland Constructors, Inc.,

 Respondent.

Representatives:

Kristin Murphy, Esq., U.S. Department of Labor, Office of the Solicitor, Atlanta, GA, for 

Complainant 

Mark A. Waschak, Esq. and J. Larry Stine, Esq., WIMBERLY, LAWSON, STECKEL,

SCHNEIDER & STINE, P.C., for Respondent 

JUDGE: Administrative Law Judge Sharon D. Calhoun 

DECISION AND ORDER GRANTING RESPONDENT’S 

MOTION FOR SUMMARY JUDGMENT 

On October 9, 2019, employees of Harvestland Constructors, Inc., (Harvestland) were 

constructing a feed mill in Crawfordville, Georgia. A carpenter (Carpenter NM) had been 

assigned the task of covering openings in an upper floor with plywood where equipment would 

be installed later. While working alone on the upper floor in the afternoon, Carpenter NM fell 

through an uncovered opening to the concrete floor below and died as a result of his injuries. A 

personal fall arrest system was available on the upper floor, but Carpenter NM was not using it 

when he fell.

A compliance safety and health officer (CSHO) for the Occupational Safety and Health 

Administration investigated the fatality. On April 8, 2020, the Secretary issued a Citation and 

Notification of Penalty to Harvestland for a serious violation of 29 C.F.R. § 1926.501(b)(4)(i), 

for failing to protect Carpenter NM from falling through holes more than 6 feet above the lower 

level. 

Harvestland timely contested the Citation. The Secretary filed a Complaint, to which 

Harvestland filed its Answer. Discovery ensued. Now before the Court is Harvestland’s Motion 
2

and Memorandum for Summary Judgment (Motion), filed in January 2021. Harvestland seeks 

summary judgment because, it contends, the Secretary cannot establish Harvestland had actual or 

constructive knowledge of the alleged violative condition. In February 2021, the Secretary filed 

his Response in Opposition to Respondent’s Motion for Summary Judgment (Response), arguing 

there are genuine disputes of material fact regarding the adequacy of Harvestland’s fall 

protection measures and its supervision of the worksite. In March 2021, Harvestland filed its 

Reply to Complainant’s Opposition to Motion for Summary Judgment (Reply), in which it 

contends the Secretary’s Response misstates facts and makes unfounded assertions. 

Having reviewed the documents and exhibits filed by the parties, the Court finds there is 

no genuine dispute regarding any material fact in this proceeding and concludes Harvestland is 

entitled to summary judgment. Accordingly, Harvestland’s Motion is GRANTED and Item 1 of 

the Citation is VACATED.

JURISDICTION AND COVERAGE

Harvestland timely contested the Citation on April 23, 2020. The parties agree the 

Commission has jurisdiction over this action and Harvestland is a covered employer under the 

Act (Complaint, ¶¶ I & II; Answer, ¶¶ I & II). Based on the agreements and the record evidence, 

the Court finds the Commission has jurisdiction over this proceeding under § 10(c) of the 

Occupational and Safety Act of 1970, 29 U.S.C. §§ 651-678 (Act), and Harvestland is a covered 

employer under § 3(5) of the Act. 

BACKGROUND

Facts Not in Dispute

In its Motion, Harvestland provides a Statement of Undisputed Material Facts

(Statement), in which it lists twenty-two statements it regards as undisputed. In his Response, the 

Secretary disputes seven of these statements.1 The fifteen undisputed “undisputed material facts” 

are:

1. Harvestland Constructors, Inc. (“Harvestland”) is engaged in the construction 

of feed mills. 

2. [Carpenter NM] was a carpenter approximately 66 years of age and was very 

experienced, as he had been working for Respondent Harvestland for 5 years. . . . 

During those 5 years, one of [Carpenter NM’s] assigned tasks was to cover 

penetrations in the floor. 

1

The Court will address the disputed statements later in this decision. 
3

3. Matthew Munson is an experienced certified safety and health officer (CSHO) 

employed by the Occupational Safety and Health Administration (OSHA) and 

conducted the investigation of [Carpenter NM’s] death.2 

4. On October 9, 2019, [Carpenter NM] had been assigned to cover openings or 

“penetrations” in the floor that were necessary to allow for the installation of 

equipment to pass from one level of the structure to another. 

5. [Carpenter NM] was the only worker assigned this task and had been doing it at 

this worksite for approximately 3 weeks before the accident, and customarily 

worked alone. 

6. The floor covers were full sheets (8 feet x 4 feet) of 3⁄4 inch plywood and with 

cleats (2 x 4 lumber cut and nailed to the plywood) so they would be stable and 

not slip when placed over floor penetrations. 

7. On October 9, 2019, [Carpenter NM] had successfully completed the holecovering task on 9 of the 13 floor penetrations on the work level before the 

accident occurred, at approximately 3:30 p.m. 

. . . 

9. [Carpenter NM] had been observed on a regular basis properly utilizing fall 

protection. 

. . . 

12. Harvestland had records of disciplinary actions that were taken in the past for 

violating safety rules to include fall protection infractions; however, the most 

recent disciplinary action was dated in 2012 and there had been no documented 

disciplinary action for the current worksite. . . . However, the employees 

understood that if they violate a safety rule, they would be disciplined. 

13. All Harvestland workers are required to use fall protection when working 4 

feet or more above ground level. 

14. [Carpenter NM] was current on his training and had never received any 

disciplinary actions against him in the course of his five years of employment 

with Harvestland. 

. . . 

16. Harvestland hired an outside consultant to conduct monthly safety inspections. 

. . . 

18. On the day of the accident, [Carpenter NM] had been overheard having a 

heated argument with his wife over the telephone. 

. . . 

2

The Secretary nominally disputes this statement but only to correct the position title of OSHA’s investigator:

The Secretary agrees that Matthew Munson is an experienced compliance safety and health officer 

(CSHO) employed by the Occupational Safety and Health Administration (OSHA) and conducted 

the investigation of Mr. Maldonado’s death. 

(Response, pp. 4-5) (italics added)
4

21. [Carpenter NM] had been working in the basement that day and immediately 

after the afternoon break, he went to the second floor and was out of sight of other 

workers and managers for approximately 10 to 15 minutes before he fell. 

22. No one witnessed [Carpenter NM’s] fall. 

(Motion, pp. 2-5) (citations to CSHO’s deposition and exhibits omitted) 

Deposition of CSHO Matthew Munson

Counsel for Harvestland deposed CSHO Matthew Munson on November 17, 2020, 

regarding his fatality investigation. His deposition testimony is summarized here. 

Carpenter NM fell to his death at the construction site in Crawfordville, Georgia, on 

October 9, 2019. The next morning, CSHO Munson arrived at the worksite to conduct a fatality 

investigation. He met with Harvestland personnel, including Superintendent AM, who was 

Carpenter NM’s nephew. Superintendent AM was the “inside superintendent.” He spent eighty 

to ninety percent of his time in Harvestland’s job trailer “dealing with vendors, dealing with any 

other issues that may arise, but most of the time was spent in the trailer doing paperwork[.]” 

(Munson Dep., Tr. 18) Superintendent DR was the “outside superintendent,” who spent most of 

his time supervising crews as they worked. Foreman FT was a working foreman (Munson Dep., 

Tr. 18-19). 

The CSHO held an opening conference with the personnel. CSHO Munson learned from 

management and from employees that Superintendent DR and Foreman FT conducted “frequent 

and regular inspections throughout the day.” (Munson Dep., Tr. 19-20) He also learned 

Harvestland contracted with an outside consulting company who performed monthly safety 

inspections. Harvestland provided fall protection training. Carpenter NM’s training was current

(Munson Dep., Tr. 20). 

After the opening conference, CSHO Munson went to the upper level where Carpenter 

NM had been working (Munson Dep., Tr. 10-11). CSHO Munson observed thirteen openings in 

the upper level floor where formwork had been removed from the ceiling on the lower level. 

Nine of the openings had been covered with plywood attached to cleats to hold the plywood in 

position. The other four openings were not covered (Munson Dep., Tr. 13-16).

CSHO Munson observed two safety harnesses on the upper floor. He stated, “One was 

lying on a stack of plywood. And the other was lying next to the stack of plywood. And then 

there was a strap that was attached to one of the machines that was on the second floor[.]”
5

(Munson Dep., Tr. 16) Carpenter NM was not wearing a safety harness when he fell. CSHO 

Munson did not inspect the safety harnesses he saw on the upper level (Munson Dep., Tr. 17). 

CSHO Munson stated Harvestland’s use of the strap anchored to the machine on the 

upper floor did not meet OSHA’s requirements for fall protection. The strap was tied around a 

section of the machine “in a choker-type configuration” and was not equipped with a clevis to 

which an employee could attach a lanyard for fall protection (Munson Dep., Tr. 60) CSHO 

identified “minimal damage to the strap” in the form of “some tears and some nicks” in the strap 

(Munson Dep., Tr. 61). 

CSHO Munson learned the Harvestland employees took an afternoon break from 3:00 to 

3:15, and Carpenter NM fell from the upper level approximately 10 to 15 minutes after returning 

to work from the break (Munson Dep., Tr. 24). Before the break, Carpenter NM “was working in 

what they call the pit area, building forms for what they call housekeeping pads, which 

machinery sits on which allows for easier clean-up. And that was located directly under the area 

where he fell from.” (Munson Dep., Tr. 24-25) Harvestland employees had heard Carpenter NM 

talking on his cell phone earlier that day, having what “seemed to be a heated argument with 

someone.” (Munson Dep., Tr. 25) 

During his investigation, CSHO Munson found Harvestland had a site-specific safety 

plan and it held safety meetings every Monday ((Munson Dep., Tr. 32-33). In one employee 

statement taken by CSHO Munson, the employee stated a supervisor came around three or four 

times a day to check on the work being performed and to make sure employees are using safety 

equipment (Munson Dep., Tr. 37-38). If a supervisor saw an employee not working safely, the 

employee would be sent home (Munson Dep., Tr. 39). Foreman FT told CSHO Munson that 

supervisors talked about the importance of using fall protection at the Monday safety meetings 

(Munson Dep., Tr. 42). 

CSHO Munson did not find an example of employees not using fall protections during 

his investigation (Munson Dep., Tr. 27) Both management personnel and employees told him 

they had never seen Carpenter NM fail to use fall protection equipment when it was required 

(Munson Dep., Tr. 29, 31). CSHO Munson held a closing conference with Harvestland 

personnel. He informed them he had observed “no violations” during his investigation, and he 

would not recommend the Secretary to issue a citation (Munson Dep., Tr. 22-23). 

Declaration of CSHO Matthew Munson
6

 The Secretary attached a copy of CSHO Munson’s declaration, signed February 19, 2021, 

(three months after his deposition date) to his Response. In his declaration, CSHO Munson 

states: 

I, Matthew Munson, state and declare as follows: 

1. I am over 18 years of age, and have personal knowledge of the facts set forth 

herein. 

2. I have been employed as a Compliance Safety and Health Officer (“CSHO”) 

for the Occupational Safety and Health Administration (“OSHA”) since 

September 2009. 

3. On October 10, 2019, I initiated an inspection at Respondent Harvestland 

Constructors, Inc.’s facility at 843 Lexington Road, Crawfordville, GA 30631 

(“the worksite”). 

4. I initiated the inspection because of a reported fatality at the worksite on 

October 9, 2019. The fatality report indicated that [Carpenter NM] was working at 

the worksite to cover floor openings when he fell 38 feet to his death. 

5. I conducted an opening conference at the worksite with Respondent’s

Superintendent [AM]. I received permission to conduct a walk-around and to take 

photos and measurements. 

6. During the inspection, I conducted interviews with [Superintendent AM], Site 

Superintendent [DR], foreman [FT], and non-management employees. Exhibit 1 

is an accurate copy of the statements I took from [AM, DR, and FT], and nonmanagement employees. 

7. Exhibit 2 is an accurate copy of the photograph of the strap I found during the 

inspection. Through my inspection, I learned the following: 

8. [Carpenter NM] was an employee with Harvestland Constructors, Inc. and was 

responsible for both identifying and covering holes that were uncovered. He was 

the only employee to perform this task. 

9. [Carpenter NM] was not wearing fall protection when he fell. 

10. Respondent’s fall protection equipment consisted of a personal fall arrest 

system (PFAS) including a nylon strap anchored to the machinery that weighed 

approximately 20,000 lbs. and bolted in place adjacent to the floor holes on the 

second floor. To be used, a full body harness was connected to the nylon strap 

that is anchored to the equipment with a double/dual leg lanyard. When I arrived, 

the harness was not connected to the strap. 

11. According to employees and managers, [Carpenter NM] had been observed 

wearing fall protection while working at heights days prior to the accident and 

typically wore his harness at heights; based on [Carpenter NM’s] previous 

behavior, they claimed that they did not know why he was not wearing the 

harness or using the fall protection at the time of the incident. 
7

12. Site Supervisor [AM] stated that the employer inspected fall protection prior 

to each use to ensure proper installation and issued new lanyards whenever 

workers’ equipment became frayed. 

13. The strap I found in plain view at the worksite and available for [Carpenter 

NM’s] use was frayed, torn, and lacked a clevis. See Exhibit 2. 

14. I learned from non-management employees that “there are some employees 

that won’t wear fall protection.” See Exhibit 1 at DOL 220. 

15. According to Respondent’s management, they performed frequent and regular 

inspections throughout the day to ensure that the unprotected floor holes were 

covered, secured, and labeled; however, inspections were not documented in any 

way. 

16. Respondent’s management did not divulge how many inspections they 

performed during the day or when they performed the last inspection on the day 

[Carpenter NM] died. 

17. On the day of the incident, management stated that they had not observed 

[Carpenter NM] working at the level from where he fell. 

18. The removal of the form work created the floor hole prior to an afternoon 

break, resulting in the floor hole remaining unprotected for an extended period. 

19. The superintendent and foremen indicated that as part of their daily job while 

walking around the site, they would address any safety violation observed by the 

workers and look at hazards such as fall protection, floor holes, slipping and 

tripping hazards, housekeeping, and personal protective equipment. 

20. The daily inspection the day of [Carpenter NM’s] death did not include 

ensuring the decedent used fall protection while covering the unprotected holes. 

21. No one would acknowledge that they were aware when the decedent was 

working on the upper level and if he used a personal fall arrest system. 

22. There was no communication from the foreman overseeing the removal of the 

formwork and [Carpenter NM] informing him that there was a hole that needed 

covered. 

23. Superintendent [DR] told me that foreman [FT] should have been supervising 

[Carpenter NM]. 

24. [Foreman FT] told me that he was up at the silo at the time of [Carpenter 

NM’s] fall. 

25. During the inspection, Respondent provided me with a copy of safety meeting 

notes. Exhibit 3 is an accurate copy of the October 19 meeting notes provided by 

Respondent. These notes state the use of a phone is prohibited except for a 

foreman or superintendent.3

3 The date “October 19” appears to be a clerical error in CSHO Munson’s Declaration. The date of Carpenter NM’s 

death was October 9, 2019. The safety meeting notes state the meeting at issue occurred “Monday October 7, 2019.” 

(Declaration, Exh. 3
8

(Declaration, pp. 1-4) 

LEGAL STANDARDS

Summary Judgment Standard

Under Rule 56(a) of the Federal Rules of Civil Procedure “[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.” 4

 The Commission has held, 

The requirements for granting summary judgment are well established: there must 

be no genuine dispute as to any material fact, and a party must be entitled to a 

judgment as a matter of law. . . . In reviewing a motion for summary judgment, a 

judge is not to decide factual disputes. . . . Rather, the role of the judge is to 

determine whether any such disputes exist. . . . 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. . . . Thus, 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. -Buffalo Stamping Plant, No. 10-1483, 2011 WL 3923734, at *1 (OSHRC Aug. 

30, 2011) (internal citations omitted).

The Secretary’s Burden of Proof Under § 5(a)(2)

In order to prove a violation of section 5(a)(2) of the Act, 29 U.S.C. § 654(a)(2), 

the Secretary must show by a preponderance of the evidence that (1) the cited 

standard applies, (2) there was a failure to comply with the cited standard, (3) 

employees had access to the violative condition, and (4) the cited employer either 

knew or could have known of the condition with the exercise of reasonable 

diligence.

Astra Pharm. Prod., Inc., No. 78-6247, 1981 WL 18810, at *4 (OSHRC July 30, 1981), 

aff’d in pertinent part 681 F.2d 69 (1st Cir. 1982). 

Here, the only element of the Secretary’s burden at issue is whether the Secretary can 

prove Harvestland either knew or could have known of the violative condition with the exercise 

of reasonable diligence.

The Cited Standard

Section 1926.501(b)(4)(i) provides: 

Each employee on walking/working surfaces shall be protected from falling 

through holes (including skylights) more than 6 feet (1.8 m) above lower levels, 

by personal fall arrest systems, covers, or guardrail systems erected around such 

holes. 

4 Commission Rule 40(j) provides, “The provisions of Federal Rule of Civil Procedure 56 apply to motions for 

summary judgment.” 29 C.F.R § 2200.40(j).
9

THE CITATION

Item 1 of the Citation alleges:

29 CFR 1926.501(b)(4)(i): Each employee on walking/working surfaces was not 

protected from falling through holes (including skylights) more than 6 feet (1.8 

m) above lower levels, by personal fall arrest systems, covers, or guardrail 

systems erected around such holes. 

On or about October 9, 2019, at the worksite located at 843 Lexington Road in 

Crawfordville, Georgia, workers working around unprotected floor holes were not 

protected from falling through them, exposing employees to a fall hazard of 38 

feet to the floor below. 

 The Secretary proposes a penalty of $13,494 for Item 1. 

ANALYSIS

As the moving party, Harvestland has the burden of identifying the parts of the record 

that show a genuine issue of material fact does not exist.

The party moving for summary judgment bears the initial burden of “identifying 

those portions of ‘the pleadings, depositions, answers to interrogatories, and 

admissions on file, together with the affidavits, if any,’ which it believes 

demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. 

Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986) (quoting 

Fed.R.Civ.P. 56(c)). An issue of fact is “material” if it is a legal element of the 

claim, as identified by the substantive law governing the case, such that its 

presence or absence might affect the outcome of the suit. Anderson v. Liberty 

Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). It is 

“genuine” if the record taken as a whole could lead a rational trier of fact to find 

for the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 

U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). 

Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 998 (11th Cir. 1992).5

Harvestland Has Met Its Burden of Identifying the Parts of the 

Record Showing a Genuine Issue of Material Fact Does Not Exist

Harvestland argues it is entitled to summary judgment because it did not know Carpenter 

NM was exposed to the hazard of falling through one of the floor openings on the upper level of 

5

Under the Act, 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). “[I]n general, ‘[w]here 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.’” Dana Container, Inc., 25 BNA OSHC 1776, 1828 

n.10 (No. 09-1184, 2015), aff’d, 847 F.3d 495 (7th Cir. 2017). This case arose in Georgia, located in the Eleventh

Circuit. Harvestland’s principal office is located in North Dakota, in the Eighth Circuit (Complaint, ¶ III; Answer, ¶ 

III). 
10

the feed mill on October 9, 2019, while not using fall protection. Harvestland contends it had 

neither actual knowledge nor constructive knowledge of the violative condition. 

[T]here are two ways that the Secretary can show knowledge. First, if the 

Secretary establishes that a supervisor had either actual or constructive knowledge 

of the violation, such knowledge is (in the typical case) imputed to the employer. 

Or, the Secretary can prove constructive employer knowledge based on the 

employer's inadequate safety program. 

ComTran Grp., Inc. v. U.S. Sec’y of Lab., 722 F.3d 1304, 1311 (11th Cir. 2013). 

Actual knowledge of the violative conduct is not at issue in this proceeding. Harvestland 

argues the Secretary cannot show constructive knowledge of the violative condition because

Harvestland had a good safety program that was effectively communicated to its employees and 

that required the use of fall protection for employees working at or above heights of 4 feet.

Carpenter NM was a well-regarded veteran employee who, according to other Harvestland 

employees, always wore a safety harness and attached lanyard when working around fall

hazards. Carpenter NM attended the weekly Monday morning safety meetings Harvestland held 

at its construction sites. Harvestland supervisors stressed the company’s requirement to use fall 

protection at heights of 4 feet or more at the safety meetings.

 Harvestland’s argument is supported by the testimony of CSHO Munson in his deposition 

(Munson Dep., Tr. 19-20, 29, 31-33, 37-38, 42; Exh. 3). It is also supported by the following 

“facts not in dispute” from Harvestland’s Motion, to which the Secretary agreed (Response, pp. 

6-7):

9. [Carpenter NM] had been observed on a regular basis properly utilizing fall 

protection. 

. . . 

12. Harvestland had records of disciplinary actions that were taken in the past for 

violating safety rules to include fall protection infractions; however, the most 

recent disciplinary action was dated in 2012 and there had been no documented 

disciplinary action for the current worksite. . . . However, the employees 

understood that if they violate a safety rule, they would be disciplined. 

13. All Harvestland workers are required to use fall protection when working 4 

feet or more above ground level. 

14. [Carpenter NM] was current on his training and had never received any 

disciplinary actions against him in the course of his five years of employment 

with Harvestland. 

. . . 

16. Harvestland hired an outside consultant to conduct monthly safety inspections. 
11

(Motion, pp. 3-6).6

The Secretary Has Failed to Establish a Genuine Dispute of Material Fact Exists 

The Secretary counters that a genuine dispute of material fact exists with regard to the 

adequacy of the fall protection equipment found unused on the upper level of the feed mill and 

with regard to the supervision of Carpenter NM. 

Adequacy of the Strap Used as a Fall Protection Lifeline 

CSHO Munson stated there were nicks and tears in the strap tied to the machine section

for use as a vertical lifeline and that it was missing a clevis. The strap is visible in the photograph 

designated as Exhibit 2 of Munson’s deposition. The Secretary argues the damage to the strap is 

a violation of § 1926.502(d)(21), which requires defective personal fall arrest equipment to be 

removed from service, and is, by extension, a violation of the cited standard because it was in 

plain view and Harvestland’s supervisors had constructive knowledge of its condition. 

 The Secretary reached this conclusion based on the following logic: 

Subpart M of the construction standards is titled Fall Protection. Section 1926.500(a)(1) 

(Scope and application) of Subpart M provides, “This subpart sets forth requirements and criteria 

for fall protection in construction workplaces covered under 29 CFR part 1926.” 

6

The Commission has held the factors to be considered for evaluating constructive knowledge are the same 

as for evaluating the affirmative defense of unpreventable employee misconduct (UEM). Burford’s Trees, No. 07-

1899, 2010 WL 151385, at * 4 (OSHRC Jan. 8, 2010). To establish the defense, an employer must prove that it had: 

“(1) established work rules designed to prevent the violative conditions from occurring; (2) adequately 

communicated those rules to its employees; (3) took steps to discover violations of those rules; and (4) effectively 

enforced the rules when violations were discovered.” Manganas Painting Co., No. 94-0588, 2007 WL 6113032, at 

*40 (OSHRC March 23, 2007). 

 Here, ¶¶ 9, 12, 13, 14, and 16 of the “facts not in dispute,” which the Secretary agrees he does not dispute, 

establish Harvestland did not have constructive knowledge of Carpenter NM’s failure to use fall protection on 

October 9, 2019. Harvestland had an established work rule designed to prevent the violative condition from 

occurring (¶ 13: “All Harvestland workers are required to use fall protection when working 4 feet or more above 

ground level.”); it adequately communicated the rule to its employees (¶ 9: “[Carpenter NM] had been observed on a 

regular basis properly utilizing fall protection[,]” and ¶ 14: “[Carpenter NM] was current on his training[,]”); it took 

steps to discover violations of the rule (¶ 16: Harvestland hired an outside consultant to conduct monthly safety 

inspections.”); and it effectively enforced the rule when violations were discovered (¶ 12: [T]he employees 

understood that if they violate a safety rule they would be disciplined.”).
12

Section 1926.501(a)(1) (Duty to have fall protection) provides, “This section sets forth 

requirements for employers to provide fall protection systems. All fall protection required by this 

section shall conform to the criteria set forth in 1926.502 of this subpart.” 

Section 1926.502(a)(1) (Fall protection systems criteria and practices), “Fall protection 

systems required by this part shall comply with the applicable provisions of this section.” Section 

1926.502(d)(21) of the section provides, “Personal fall arrest systems shall be inspected prior to 

each use for wear, damage and other deterioration, and defective components shall be removed 

from service.” 

Based on the quoted standard sections, the Secretary argues the strap located on the upper 

level was defective and should have been removed from service. Because it was not, Harvestland 

was in violation of the cited standard, § 1926.501(b)(4)(i) (“Each employee on walking/working 

surfaces shall be protected from falling through holes . . . more than 6 feet (1.8 m) above lower 

levels, by personal fall arrest systems[.]”), despite the fact Carpenter NM was not wearing a 

safety harness and was not tied off to the strap when he fell through the opening. “Regardless of 

[Carpenter NM’s] usage of Respondent’s existing fall protection, the parties dispute whether 

Respondent’s onsite fall protection was in adequate condition to ensure worker safety.” 

(Response, p. 10) 

The Secretary’s argument is that, because Harvestland violated § 1926.502(d)(21) (by 

failing to inspect and remove the defective strap from service), it was also in violation of § 

1926.502(b)(4)(i). The material fact in dispute, the Secretary claims, is whether the strap was 

defective. 

The Court disagrees. While it is true Harvestland disputes the Secretary’s appraisal of the 

condition of the strap, the Secretary has failed to demonstrate the fact of the strap’s condition is 

material to the cited standard. “An issue of fact is ‘material’ if it is a legal element of the claim, 

as identified by the substantive law governing the case, such that its presence or absence might 

affect the outcome of the suit.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 248. Here, the 

condition of the strap is immaterial to the knowledge element of the Secretary’s burden of proof 

for the cited standard, which requires the Secretary to establish that Harvestland knew or could 

have known Carpenter NM was not protected from falling through floor openings on the upper 

level of the feed mill on October 9, 2019. 
13

The evidence regarding the condition of the strap that the Secretary cites would be 

material to an alleged violation of § 1926.502(d)(21), which addresses the inspection and 

removal of defective fall protection equipment. The Secretary could have cited Harvestland for a 

violation of that standard, but chose not to.7 Instead, the alleged violation description (AVD) of 

the Citation states, “On or about 9, 2019, at the worksite located at 843 Lexington Road in 

Crawfordville, Georgia, workers working around unprotected floor holes were not protected 

from falling through them, exposing employees to a fall hazard of 38 feet to the floor below.” 

The AVD says nothing about a defective strap. It does not even specify that the fall protection 

measure at issue is a personal fall arrest system, rather than guardrails or covers. 

The evidence required to establish a violation of § 1926.501(b)(4)(i) differs from the 

evidence required to establish a violation of § 1926.502(d)(21)—one addresses the failure to 

provide fall protection and, the other involves the failure to remove defective fall protection

equipment. Under the Secretary’s theory, any violation of § 1926.502, which mandates the 

extensive criteria for guardrail systems; safety nets; personal fall arrest systems; safety 

monitoring systems; covers; and protection from falling objects, would also violate § 

1926.501(b)(4)(i). 

7 It appears that § 1926.502(d)(21) would have been the more appropriate standard to cite, given the Secretary’s 

allegation that the strap, used as part of a personal fall protection system, was defective. A claim that a more specific 

standard applies to the cited condition is, however, an affirmative defense which Harvestland has not raised.

[R]egulatory preemption pursuant to § 1910.5(c)(1) is an affirmative defense that must be pleaded 

in the respondent's answer. See, e.g., Spirit Aerosystems, 25 BNA OSHC 1093, 1097 n.7 (No. 10-

1697, 2014) (“[P]reemption by a more specifically applicable standard is an affirmative defense 

which the respondent must raise in its answer.”) (citations omitted); see also Safeway Inc. v. 

OSHRC, 382 F.3d 1189, 1194 (10th Cir. 2004) (explaining that specific standards function as an 

affirmative defense under the general duty clause); Brand Energy Solutions LLC, 25 BNA OSHC 

1386, 1388 (No. 09-1048, 2015) (referring to preemption claim as an affirmative defense); Vicon 

Corp., 10 BNA OSHC 1153, 1157 (No. 78- 2923, 1981) (describing a claim that a general 

standard was preempted by a more specific standard as an affirmative defense), aff'd, 691 F.2d 503 

(8th Cir. 1982) (unpublished). The Commission's Rules of Procedure also require a respondent to 

raise any affirmative defense in the answer, or “as soon as practicable,” or risk being prohibited 

from raising the defense at a later stage in the proceeding. 29 C.F.R. § 2200.34(b)(4). “As soon as 

practicable” means that the issue is raised with enough time for the opposing party to 

meaningfully respond. See Field & Assocs., Inc., 19 BNA OSHC 1379, 1382 (No. 97-1585, 2001) 

(agreeing with judge that affirmative defense raised at hearing was not raised “as soon as 

practicable”).

Mansfield Indus., Inc., No. 17-1214, 2020 WL 8871368, at *3 (OSHRC Dec. 31, 2020). 
14

The fallacy of the Secretary’s position is demonstrated by the case he cites in support of 

his argument, an unreviewed administrative law judge decision.

8 The Secretary states,

Merely having fall protection is not sufficient to ensure worker safety if the fall 

protection itself is faulty. Payton Roofing, [Nos. 16-1161 & 16-1162, 2017 WL 

8218884 (OSHRC Oct. 30, 2017)] (upholding citation against employer where 

workers wore personal fall arrest systems that were faulty because they were 

improperly attached).

(Response, p. 9) 

The Secretary implies the affirmed item addressing improperly attached personal fall 

arrest system equipment cites the standard at issue here, § 1926.501(b)(4)(i). Although that 

standard is cited, it is one of three fall protection standards at issue in the case, and its affirmation 

has nothing to do with faulty fall arrest system equipment. 

In Payton Roofing, the CSHO observed several employees exposed to fall hazards while

working on top of a roof without fall protection. 

CO Rodgers testified that during his investigation seven employees were on the 

roof . . . working around the large hole without wearing any fall protection. The 

photograph at Ex. 33 shows five of the seven employees pictured on the roof not 

wearing any personal fall arrest systems. . . . Two other employees . . . were also 

observed near the “hole” at Ex. 28, at “A”, using personal fall arrest systems. But 

the use of such systems was faulty because they had improperly attached their two 

lifelines to a single anchorage. 

Id. at *8 (emphasis added). 

The administrative law judge affirmed the citation for violation of § 1926.501(b)(4)(i) 

based on Payton Roofing’s knowledge of the employees who were not wearing any fall 

protection. 

With regards to knowledge, CO Rodgers testified that Supervisor Brown had been 

on the roof while employees moved debris near the large hole. CO Rodgers 

testified that Mr. Brown admitted that the “workers worked around the holes” for 

the past two days, “without any form of fall protection.” Mr. Brown also told CO 

Rodgers that both he (Mr. Brown) and Mr. Rodriguez had observed Respondent's 

employees on the roof working around and in close proximity to the holes without 

any means of fall protection. The larger hole was approximately 16 feet by 8 feet 

meaning it was large enough where Mr. Brown should have been aware of the 

hazard it presented. Knowledge has been established. 

8 “See Leone Constr. Co., 3 BNA OSHC 1979, 1981 (No. 4090, 1976) (unreviewed administrative law judge 

decision does not constitute binding precedent for the Commission).” TNT Crane & Rigging, Inc., No. 16-1587, 

2020 WL 1657789, at *7 (OSHRC March 27, 2020).
15

Id. at *9 (emphasis added). 

The citation item for the violation of § 1926.501(b)(4)(i) was affirmed, based not on the 

two employees using faulty personal fall arrest systems, but on the employees who worked 

“without any form of fall protection.” The two employees using the faulty equipment were the 

basis for the administrative law judge affirming a different citation item, for the violation of § 

1926.502(d)(15) (“Anchorages used for attachment of personal fall arrest equipment shall be 

independent of any anchorage being used to support or suspend platforms and capable of 

supporting at least 5,000 pounds (22.2 kN) per employee attached[.]”). The administrative law 

judge affirmed a third citation item alleging a violation of the standard the Secretary considers 

the underlying violation in this proceeding, § 1926.502(d)(21), because Payton Roofing failed to 

inspect and remove a defective lifeline from the worksite.

Payton Roofing does not support the Secretary’s argument that § 1926.501(b)(4)(i) is 

applicable to the use of faulty fall protection equipment. While it is not precedential, the decision 

provides persuasive support for the argument that proof of a violation of § 1926.502(d)(21) is 

separate and distinct from proof of a violation of § 1926.501(b)(4)(i). The Secretary has not 

provided the Court with any Commission or administrative law judge decision that supports his 

theory that failure to remove defective fall protection equipment supports finding a violation of 

the standard cited in this proceeding. 

Under the legal standard for summary judgment, the Court must “resolve all ambiguities 

and draw all reasonable inferences in favor of the non-moving party.” Ford Motor Co. -Buffalo 

Stamping Plant, 2011 WL 3923734, at *1. Applying this standard, the Court finds it is a 

reasonable inference that the strap at issue was defective, based on the photographs and CSHO 

Munson’s testimony that he observed nicks and tears on it. The Court concludes, however, that 

the condition of the strap is immaterial to the issue of whether Harvestland knew of Carpenter 

NM’s failure to use any form of fall protection on the afternoon of October 9, 2019, while he was 

on the upper level of the feed mill. 

Supervision of Carpenter NM 

The Secretary also argues the lack of supervision of Carpenter NM on October 9, 2019, 

raises a genuine issue of material fact regarding reasonable diligence. He bases this argument on 

the following four contentions: 
16

1. “In spite of Respondent’s claims that it inspected the worksite and fall protection 

regularly, Respondent did not document its inspections.” (Response, p. 11) 

 2. “[DR], the superintendent, stated that [Carpenter NM] typically wore a harness and 

should have had on a harness on the date of the incident. . . . DR stated, ‘Whenever employees 

work in elevated areas, they are supposed to go with another person . . . [but] I don’t know why 

[Carpenter NM] went up by himself or why he had to cover the holes by himself. The foreman 

was supposed to know who was working with him.” . . . Nonetheless, as Respondent admits, 

[Carpenter NM] was the only worker assigned to cover 13 open floor coverings and worked 

alone. . . Because [Carpenter NM] was alone, no one witnessed his fall.” (Response, pp. 12-13) 

 3. “[FT], the site foreman, recognized that it was his responsibility to check employees, 

watch them work, and ensure that work is performed safely and properly. . . . Site Superintendent 

[DR] stated that it was [FT’s] job to supervise [Carpenter NM]. . . . However, Foreman [FT] did 

not have knowledge of [Carpenter NM’s] whereabouts or duties on the date of the incident, 

stating that he believed the Superintendent directed [Carpenter NM’s] work instructions. . . . 

Both [DR] and [FT] failed to supervise their workers to ensure adequate adherence to 

Respondent’s fall protection measures.” (Response, pp. 12-13) 

 4. “Finally, on the day of the incident, at least one other worker observed [Carpenter NM] 

having a ‘heated argument’ on his cell phone while working on the second level to cover holes. . 

. . As part of its safety program, Respondent had a policy against workers using mobile devices 

while working. . . . Despite [Carpenter NM’s] heated phone conversation, and presumably loud 

speaking, Respondent made no attempts to prevent him from continuing work while on the 

phone.” (Response, p. 13) 

The Secretary’s contentions in the first three statements do not establish facts material to 

Harvestland’s constructive knowledge of the violative condition. None of these contentions 

demonstrates Harvestland’s safety program was inadequate or its supervision was deficient.

Nothing in OSHA’s fall protection standards requires the employer to document worksite 

inspections. Nor do the standards require constant supervision of employees. In his witness 

statement, Superintendent DR stated that Carpenter NM “was an experienced employee and 

knew that once the holes were opened, he had to cover them. No one had to tell him that, he 

would do it once he noticed the holes being opened.” (Exh. 1, Bates p. 215) Harvestland was not 
17

obligated to supervise Carpenter NM continuously. The Commission has rejected such oversight

in a case involving fall protection. 

The Secretary argues that Stahl should have provided more supervision, but [he]

failed to specify how much would be necessary to assure compliance, what 

additional measures Stahl should have taken, or how Stahl's supervision was 

insufficient. See Trinity Marine Nashville, Inc., 19 BNA OSHC 1015, 1017, 2000 

CCH OSHD ¶ 32,158, p. 48,527 (No. 98-144, 2000), rev'd on other grounds, 275 

F.3d 423 (5th Cir. 2002). 

The thrust of the Secretary's argument seems to be that the very fact the violations 

occurred proves Stahl's supervision was inadequate. However, an “employer's 

duty is to take reasonably diligent measures to inspect its worksite and discover 

hazardous conditions; so long as the employer does so, it is not in violation 

simply because it has not detected or become aware of every instance of a 

hazard.” Texas A.C.A., Inc., 17 BNA OSHC 1048, 1051, 1993-95 CCH OSHD ¶ 

30653, p. 42,527 (No. 91-3467, 1995) (emphasis in original). “Where the 

evidence fails to show that the employer should have perceived a need for 

additional monitoring or that such an effort would have led to the discovery of 

instances of employee misconduct, increased supervisory efforts to monitor 

employee compliance are not required.” Dover Elevator Co., 16 BNA 1281, 1287, 

1993-95 CCH OSHD ¶ 30,148, p. 41,480 (No. 91-862, 1993). 

Stahl Roofing, Inc., Nos. 00-1268 & 00-1637, 2003 WL 440801, at *3 (OSHRC Feb. 21, 2003). 

Here, there is no evidence Harvestland should have perceived a need for additional 

monitoring for an experienced employee performing a routine assignment. As in Stahl, the 

Secretary’s argument appears to be that Carpenter NM’s failure to use the available fall 

protection equipment proves Harvestland’s supervision was inadequate. Stahl demonstrates 

reasonably diligent inspection measures are not inadequate merely because they failed to detect 

every instance of a fall hazard.

As for the Secretary’s fourth contention, it misstates the testimony of the CSHO. The 

Secretary claims Carpenter NM was “on his cell phone while working on the second level to 

cover holes.” (Response, p. 13). CSHO Munson did not testify, however, that an employee or 

employees heard Carpenter NM talking on his cell phone while he was working on the upper 

level. CSHO Munson does not say where Carpenter NM was at the time of his conversation, but 

he states Carpenter NM was working on the lower level before the afternoon break. This is the 

relevant testimony: 

Q.: [P]rior to the [afternoon] break, did you ascertain where [Carpenter NM] was 

working in relation to the construction site? 
18

CSHO Munson: He was working in what they call the pit area building forms for 

what they call housekeeping pads, which machinery sits on which allows for 

easier clean-up. And that was located directly under the area where he fell from. 

Q.: So, to the best of your ability, what you can determine is that the employees 

took an afternoon break -- a 15-minute break around the three o'clock hour. You 

don't know precisely. And then shortly after that, [Carpenter NM] fell from the 

floor hole; correct? 

CSHO Munson: Yes, sir. 

. . . 

Q.: Did anybody say anything about [Carpenter NM] having an argument with 

his wife during that day? 

CSHO Munson: There was a statement to such. Yes.

Q.: Tell me what you ascertained about that, his argument with his wife. 

CSHO Munson: There was -- somebody stated that -- I can't recall who, that 

there was -- he is on the phone, which seemed to be a heated argument with 

somebody on the phone. The details could not be confirmed. 

(Munson Dep., Tr. 24-25) 

There is no indication that Carpenter NM was on the upper level while talking on his cell 

phone or that a supervisor overheard the conversation. The Court is required to resolve 

ambiguities and draw reasonable inferences in favor of the nonmoving party when considering a 

summary judgment motion, but there must be some evidentiary basis for the resolutions and 

inferences. 

Although we draw justifiable inferences in the non-moving party's favor, 

“unsupported speculation does not meet a party's burden of producing some 

defense to a summary judgment motion” because it “does not create 

a genuine issue of fact.” Cordoba v. Dillard's, Inc., 419 F.3d 1169, 1181 (11th 

Cir. 2005) (cleaned up). Speculation instead “creates a false issue, the demolition 

of which is a primary goal of summary judgment.” Id. (quotation marks omitted).

Olbek v. City of Wildwood, FL, No. 20-13075, 2021 WL 1245276, at *5 (11th Cir. Apr. 5, 2021)

(unpublished). 

The Secretary’s contention that Carpenter NM was working on the upper level while he 

talked on his cell phone is unsupported speculation. It does not create a genuine issue of disputed 

fact.

The Secretary’s arguments regarding the purported inadequacy of Harvestland’s safety 

program due to improper supervision are without merit. The Secretary has failed to establish a 

genuine dispute of a material fact exists with regard to constructive knowledge and reasonable 

diligence.
19

Disputed Facts 

In his Response, the Secretary disputed seven of the twenty-two “undisputed facts” 

Harvestland set out in its Motion. The Court generally has addressed these issues in this decision. 

None of the disputed facts are material to this proceeding. The Court briefly addresses the 

Secretary’s specific arguments here. Harvestland’s initial statement is set out, followed by the 

Secretary’s response.

8. Fall protection was available for [Carpenter NM’s] use: in fact, two full-body 

harnesses with attachments were observed on the work level ready for use. 

Response: Disputed. Although fall protection was available for use, the 

Secretary disputes whether the fall protection was adequate, given the lack 

of a clevis and the condition of the available fall protection. 

(Response, p. 5) 

 As discussed previously, the purportedly damaged condition of the strap is not material to 

the legal element of constructive knowledge of the violation of § 1926.501(b)(4)(i).

10. Harvestland provides fall protection training for all employees along with 

other types of safety training in accordance with the work performed. When the 

employees worked at heights, every Monday, all the employees would have a 

meeting and go over safety issues including the use of fall protection. [Carpenter 

NM] signed the roster for those Monday meetings. 

Response: Disputed. Foreman [FT] told CSHO Munson that he had not 

received fall protection training while working for this employer. 

(Response, p. 6) 

In his written statement, Foreman FT states, “At other places I have received training 

about fall protection but not here right now. Every Monday we have a meeting where they 

remind us that we need to check our tools, the areas we are going to work in and to wear 

protection if we are working over four feet.” (Exh. 1, Bates p. 211) 

Foreman FT was aware of Harvestland’s requirement that employees working near fall 

hazards 4 feet or higher were required to use fall protection. He had received fall protection 

training in the past. Nothing in his statement demonstrates a material fact is in genuine dispute.

11. Harvestland had a fully adequate written fall protection program. 

Response: Disputed. Foreman [FT] told CSHO Munson that he had not 

received fall protection training while working for this employer. . . . The 

Secretary disputes the adequacy of Harvetland’s fall protection, including 

the condition of its equipment and the enforcement of its policies, as 

evidenced by [Carpenter NM’s] working by himself while speaking on the 

telephone. 
20

(Response, p. 6) 

As previously noted, Foreman FT was aware of the requirement to use fall protection, 

and there is no evidence Carpenter NM was working while he was speaking on his cell phone. 

15. Harvestland’s superintendent and foremen inspected the worksite multiple 

times each day, reviewing the work of the employees to ensure they were working 

safely but did not document those inspections. 

Response: Disputed. The Secretary disputes whether Harvestland’s 

superintendent and foremen inspected the level on which [Carpenter NM] 

was assigned to work and whether their visits were adequate to ensure 

safety. 

(Response, p. 7) 

The Secretary’s response does not refute Harvestland’s statement, which describes its 

supervisors’ regular inspection routine. This is borne out by the written statement of an employee 

who stated his supervisor “comes around three or four times a day.” (Munson dep., p. 37) 

17. Employees understood they would be sent home if they did not work safely. 

Response: Disputed. One non-management employee told OSHA that 

“there are some employees who won’t wear fall protection.” 

(Response, p. 7) 

In his Declaration, signed February 19, 2021, CSHO Munson avers, “I learned from nonmanagement employees that ‘there are some employees that won’t wear fall protection.’”

(Declaration, ¶ 14).9

 This statement in his Declaration is at odds with CSHO Munson’s deposition testimony, 

taken four months earlier. There, when asked, “[D]id you ever determine there was another 

example at this worksite where employees were not using their fall protection correctly?”, CSHO 

responded, “No.” (Munson dep., p. 27) 

9 This sentence is taken from a longer statement made by the employee. For context, the employee stated,

The supervisor comes around about three or four times a day. He [is] checking on if that work is 

going good, to make sure you have your safety on. If there is something wrong they will stop us, 

fix it, then let us go back to work after it is fixed. We have a safety meeting every Monday 

morning. They go over what not to do, talk about what will happen to you if you don’t follow 

rules. I use fall protection. That said we are supposed to use fall protection. Listening and paying 

attention is the main key out here. There are some that won’t use the fall protection. No I said that 

they tell you to wear fall protection I said the reason that accident happened was probably because 

he wasn’t using the fall protection at that time. If they see you violating any safety stuff they will 

send you home.

(Exh. 1, Bates pp. 219-20) (emphasis added)
21

Generally, when considering a summary judgment motion, the Court is required to 

resolve all ambiguities and draw all reasonable references in favor of the nonmoving party. An 

exception exists in some circuits to this legal standard when a witness’s subsequent affidavit 

contradicts his or her previous deposition testimony. The Eighth Circuit (where Harvestland’s 

principal office is located) and the Eleventh Circuit (where the fatality occurred) observe this 

exception. The parties may seek review in either of those circuits, so the Court will apply the 

exception here.

 The Court of Appeals for the Eighth Circuit explains the rationale for the exception.

In Camfield [Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361, 1363 (8th Cir. 

1983)], we addressed “the troublesome issue of whether summary judgment may 

be granted when one of the parties after giving a deposition later files an affidavit 

with directly contrary statements.” Id. In affirming the district court's grant of 

summary judgment for the defendant, this court held that an affidavit filed by the 

plaintiff in opposition to a motion for summary judgment that directly 

contradicted the plaintiff's previous deposition testimony was insufficient to 

create a genuine issue of material fact under Rule 56. Id. at 1365. We stated:

The very purpose of summary judgment under Rule 56 is to 

prevent “the assertion of unfounded claims or the interposition of 

specious denials or sham defenses ....” 10 C. Wright, A. Miller & 

M. Kane, Federal Practice and Procedure § 2712 (1983). If a 

party who has been examined at length on deposition could raise 

an issue of fact simply by submitting an affidavit contradicting his 

own earlier testimony, this would greatly diminish the utility of 

summary judgment as a procedure for screening out sham issues of 

fact.

Id. We emphasized that while summary judgment “is to be reserved for those 

cases in which there is no genuine material issue of fact for 

determination,” if “testimony under oath ... can be abandoned many months later 

by the filing of an affidavit, probably no cases would be appropriate for summary 

judgment.” Id. No party should be allowed to create “issues of credibility” by 

contradicting his own previous testimony. Id. at 1366. 

City of St. Joseph, Mo. v. Sw. Bell Tel., 439 F.3d 468, 475–76 (8th Cir. 2006). 

The Court of Appeals for the Eleventh Circuit agrees: “When a party has given clear 

answers to unambiguous questions which negate the existence of any genuine issue of material 

fact, that party cannot thereafter create such an issue with an affidavit that merely contradicts, 

without explanation, previously given clear testimony.” Van T. Junkins & Assocs., Inc. v. U.S. 

Indus., Inc., 736 F.2d 656, 657 (11th Cir. 1984). 
22

Based on the precedent of the Eighth and Eleventh Circuits, the Court credits CSHO 

Munson’s testimony in his deposition that he knew of no instance, other than Carpenter NM’s 

fall, where a Harvestland employee did not use proper fall protection at this worksite (Munson’s 

dep., Tr. 27). The Court does not credit his Declaration statement asserting an employee told 

him, “‘There are some employees that won’t wear fall protection.” (Declaration, ¶ 14). 

19. For reasons unknown, [Carpenter NM] chose not to put on or connect the 

harness despite having done so regularly at this worksite and countless times 

during the five years of his employment, in full compliance with the company’s 

policies. 

Response: The Secretary does not dispute that [Carpenter NM] was not 

wearing a harness at the time of his death. The Secretary objects to the 

remainder of this statement as speculative.

(Response, p. 7) 

 The Secretary is disputing a statement that is based on its CSHO’s deposition testimony. 

Q.: Did you ascertain during the investigation whether [Carpenter NM] was 

observed when he was working at heights, normally wearing his harness and his 

lanyards attached properly? 

CSHO Munson: Yes, sir.

Q.: So, no employee or no manager had observed [Carpenter NM] working at 

heights without properly wearing his fall protection before the incident; correct? 

CSHO Munson: That is correct. 

Q.: Did [Foreman FT] ever observe [Carpenter NM] not wearing his fall 

protection correctly? 

CSHO Munson: No.

(Munson dep., p. 29) 

Q.· You also indicated, according to employees and managers, [Carpenter NM] 

had been observed wearing fall protection while working at heights days prior to 

the accident. True? 

CSHO Munson: That is correct. 

Q.: Also, according to the employees and managers, he always wore his harness 

at heights; is that correct? 

CSHO Munson: That is correct.

(Munson dep., p. 31) 

 The statement that the Secretary characterizes as speculative is fully supported by CSHO 

Munson’s testimony.
23

20. Not only did [Carpenter NM] apparently choose not to don and connect a 

harness; his hard hat was found carefully, and to all appearances intentionally, 

placed next to the floor opening through which he fell to his death. 

Response: Disputed. The Secretary does not dispute that [Carpenter NM’s] 

hat was found next to the floor opening where he fell. Respondent presents 

no facts supporting that the hat was “carefully” or “intentionally” next to 

the floor opening. 

(Response, p. 8) 

The Court agrees with the Secretary that nothing in the record supports Harvestland’s 

contention that Carpenter NM’s hard hat “was found carefully, and to all appearances 

intentionally, placed next to the floor opening through which he fell[.]”10 One might assume an 

employee would better demonstrate care and intentionality if he placed the hard hat right side up 

and next to a wall. Instead, the hard hat is upside down in the middle of the floor between two 

openings. It is just as likely his hard hat fell off as Carpenter NM stumbled or stepped through 

the opening. Regardless, the disputed statement is not material to the issue of constructive 

knowledge. 

CONCLUSION

Having reviewed the record and the parties’ arguments, the Court finds there is no 

genuine dispute as to the evidentiary facts. Accordingly, Harvestland’s Motion for Summary 

Judgment is GRANTED.

SO ORDERED.

 

 /s/___________________________ 

 Sharon D. Calhoun 

Dated: May 13, 2021 Administrative Law Judge, OSHRC 

 Atlanta, GA

10 It is Harvestland’s theory that Carpenter NM deliberately stepped through the opening, possibly because he was 

upset about the heated phone conversation he is reported to have had earlier that day.

Q.: Do you have any evidence that shows that [Carpenter NM] did not commit suicide?

CSHO Munson: Um . . . I—I do not.

(Munson’s dep., p. 58) 

Nothing in the record indicates that Carpenter NM was talking to his wife on the phone (Harvestland’s counsel 

assumes Carpenter NM was talking to his wife, but CSHO Munson states he was overheard talking to “somebody”), 

that he remained upset after the phone call, or that he felt suicidal.