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. 21-0513 

 ) 

Lucas Shrewsbury dba Infinite Installation )

and Repair, )

 )

 )

Respondent. )

______________________________________ )

DECISION AND ORDER GRANTING SECRETARY'S 

MOTION FOR DEFAULT JUDGMENT

I. Background

This matter is before the Court as a matter pursuant to the Occupational Safety and Health 

Act of 1970, 29 U.S.C. §§ 651-678 (Act). 

On May 6, 2021, the Occupational Safety and Health Administration’s (OSHA) Syracuse 

Area Office issued two citations and a notification of proposed penalties to Respondent for 

violations that occurred at 600 East Brighton Avenue, Syracuse, NY 13210. The first citation 

contained two items and the second citation contained one item. These citations arose from OSHA 

Inspection No. 1501701. 

Citation 1, Item 1, alleged a Willful – Serious violation of 29 C.F.R. § 1926.501(b)(4)(i), 

where “on or about 11/9/20: Employees working on the roof were not protected from falling 

through skylights ....” The proposed penalty for Citation 1, Item 1, is $30,037. Citation 1, Item 2, 

alleged a Willful – Serious violation of 29 C.F.R. § 1926.501(b)(10), where “on or about 11/9/20: 

Employees were working on a low slope roof with a ground to eave height of 19 feet without fall 

protection of any kind.” The proposed penalty for Citation 1, Item 2, is $30,037. Citation 2, Item 1, 

alleged an Other-Than-Serious violation of 29 C.F.R. § 1926.503(b)(1), where “on or about 11/9/20: 
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Employees were working on a low slope roof with a ground to eave height of 19 feet without fall 

protection of any kind and where the employer did not produce requested fall protection training 

certificates.” The proposed penalty for Citation 2, Item 1, is $0.00. 

 By letter dated May 24, 2021, Respondent filed its Notice of Contest contesting all 

 aspects of the citations.

 On September 15, 2021, the Secretary served his First Set of Interrogatories and Requests

for the Production of Documents on Respondent’s counsel. Respondent’s responses to the 

Secretary’s Written Discovery were due to the Secretary on October 15, 2021.

 In response to repeated demands by the Secretary for discovery responses, Respondent’s 

counsel offered numerous promises to fully respond to discovery in short order, and offered a 

variety of excuses for Respondent’s continued refusal to comply with its discovery obligations, 

including a possible change in counsel, the Thanksgiving holidays, computer difficulties, etc.

On December 1, 2021, the Secretary moved the Court to compel discovery responses.

 On December 10, 2021, Respondent filed a response to the Secretary’s motion,stating 

among other things that it “does not object to an order compelling responses to the outstanding 

discovery demands.”

 On December 14, 2021, the Court granted the Secretary’s Motion to Compel discovery 

responses and instructed Court personnel to serve its order on the parties. The Court ordered 

Respondent to provide responses to the Secretary’s First Set of Interrogatories and the Secretary’s 

First Requests for the Production of Documents by December 29, 2021. Due to an inadvertent 

administrative oversight, Court personnel did not date and serve the Court’s order on the parties 

until January 11, 2022.

On or about January 14, 2022, the principal of the company, Lucas Shrewsberry, died.

 On March 2, 2022, the Secretary moved for sanctions, explaining that Respondent had 
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failed to take any steps to comply with the Court’s order compelling Respondent to respond to the 

Secretary’s Written Discovery.

On March 16, 2022, Respondent’s counsel filed Respondent’s opposition to theSecretary’s 

Motion for Sanctions.

On April 11, 2022, the Court granted the Secretary’s Motion for Sanctions and sanctioned 

Respondent for failing to comply with its discovery obligations. Specifically, the Court ordered that: 

1) Respondent’s defenses set out in its answer were stricken and Respondent shall not be allowed to 

offer any evidence on any of these stricken defenses, or on any other defenses, at the trial or in any 

post-trial brief filed; 2) Respondent was not allowed to: a) call any witnesses to testify at the trial 

other than OSHA personnel, b) offer into evidence any documentary material the Secretary had sought 

in his Written Discovery requests, and c) object to any offer of proof the Secretary may make as to 

any expected testimony of witnesses the Secretary has been unable to locate due to Respondent’s 

failure to respond to the Written Discovery requests; 3) Respondent shall pay for the costs and

attorney’s fees associated with the Secretary having to file his Motions to Compel and for Sanctions; 

and 4) Respondent’s failure to fully comply with all parts of this order may result in further 

sanctions, including the dismissal of its notice of contest and the assessment of other costs and 

expenses incurred by the Secretary. (April 11, 2022 Order). The Court did not hold Respondent in 

default because of “the fact that Respondent has not abandoned this case.” (Id., at 4 n.2).

On May 4, 2022, Respondent’s then counsel, Michael Rubin Esq., Goldberg, Segalla, LLP

(Respondent’s counsel), filed Respondent’s Counsel’s Motion to Withdraw as Counsel pursuant to 

Commission Rule 23(b) (Motion to Withdraw as Counsel) since Respondent has not paid

Respondent’s counsel’s attorneys’ fees since about August, 2021, and other reasons. 

On May 19, 2022, the Court granted Respondent’s counsel unopposed Motion to Withdraw 

as Counsel.
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On July 11, 2022, pursuant to 29 CFR §§ 2200.40(a) and 2200.52(f), the Secretary moved

the Court for an order imposing a default judgment against Respondent for abandoning this case 

after failing to comply with the Court’s order granting the Secretary’s Motion to Compel Discovery 

Responses (Motion for Default). In his Motion for Default, the Secretary’s counsel indicated that 

he had spoken with [redacted], the [redacted]/family representative of Respondent, who stated that 

following Respondent’s principal’s death, the business has permanently ceased operations, there are 

no employees or (other) representatives of the business, and that she wanted nothing to do with this 

case. Accordingly, the Secretary asserts that Respondent has abandoned this case, has no 

representative with an interest in these proceedings, will not comply with the Court’s orders, and 

should be declared in default.

Respondent has not filed any response to the Motion for Default.

 To date, Respondent has not provided any response to the Secretary’s written discovery.1

 The Court’s schedule calls for discovery to be ongoing. The case is scheduled for trial 

commencing on October 11, 2022. 

II. Jurisdiction

 The Court finds that the Commission has jurisdiction of the parties and the subject matter in 

this case.

III. The Secretary’s Burden of Proof

To prove a violation of a specific standard, the Secretary must demonstrate by a 

preponderance of the evidence that: 1) the cited standard applies, 2) the terms of the standard were 

not met, 3) employees had access to the cited condition, and 4) the employer knew, or could have 

known with the exercise of reasonable diligence, of the cited condition. Astra Pharm. Prods., 9 

BNA OSHC 2126, 2129 (No. 78-6247, 1981) aff’d in relevant part, 681 F.2d 69 (1st Cir. 1982).
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IV. Motion to Default

Commission Rule of Procedure (CRP) 101 permits a judge to declare a party in default and 

enter a final decision for failure to otherwise proceed as required by the rules or judge on the 

motion of a party. See 29 C.F.R. § 2200.101. The rule permits the Court to enter a default order 

and dismiss a notice of contest where an employer has shown a “pattern of disregard for 

Commission proceedings.” Heave Ho Crane Co., 24 BNA OSHC 2058, 2060 (No. 14-0250, 

2014); see also Twin Pines Constr., Inc., 24 BNA OSHC 1500, 1502 (No. 12-1328, 2012) (ALJ).

“Commission judges have the discretion to impose sanctions on parties who violate their 

orders.” NL Indus., Inc. 11 BNA OSHC 2156, 2168 (No. 78-5204, 1984). The Commission and 

federal courts generally consider eight criteria when determining whether a Judge’s decision to 

sanction a party through dismissal is appropriate. Duquesne Light Co., 8 BNA OSHC 1218, 1221 

(No. 78-5303, 1980) (consolidated). Prejudice to the opposing party,1 whether there is a showing 

of willful default by a party, and contumacious conduct by the noncomplying party are three of the 

more significant criteria to consider. Only one of these three criteria is needed to affirm the Judge’s 

decision to render a judgment by default against a party. Ford Dev. Corp., 15 BNA OSHC 2003, 

2005 (No. 90-1505, 1992); Circle T Drilling Co., Inc., 8 BNA OSHC 1681, 1682 (No. 79-2667, 

1980). 

In this instance, there is a clear showing of willful default by Respondent. The Court finds 

that Respondent has abandoned its case pending before the Commission. Respondent failed to 

respond to Respondent’s counsel’s Motion to Withdraw as Counsel. Respondent has not had a 

successor representative make an appearance before the Commission in this case after the Court 

granted Attorney Rubin’s Motion to Withdraw as Counsel. Respondent failed to respond to the 

1 A party is prejudiced if the failure to make required court ordered disclosures impairs the party’s ability to adequately 

prepare for trial, including understanding the factual merits of the opponent’s defense(s). Avionic Co. v. Gen. 

Dynamics Corp., 957 F.2d 555 (8th Cir. 1992). In this instance, the Secretary has been clearly prejudiced by 

Respondent’s failure to comply with the Court’s Order compelling discovery.
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Secretary’s Motion to Default. Respondent has failed to comply with the Court’s order compelling 

discovery per 29 C.F.R. § 2200.52(f). Respondent’s family representative has told the Secretary’s 

counsel “that neither she, nor anyone once associated with Respondent, intends to participate in this 

matter.” (Motion for Default, at 6). Collectively, the Court finds these failures to be contumacious 

conduct by the Respondent. 

The Court may dismiss a matter when “the record shows contumacious conduct by the 

noncomplying party or prejudice to the opposing party.” St. Lawrence Food Corp. D/b/a/ (sic) 

Primo Foods, 21 BNA OSHC 1467, 1472 (No. 04-1734, 2006) (consolidated). Respondent has now 

shown no interest in moving this case forward to trial. Under these circumstances, the Court sees no 

worthwhile purpose in allowing this case to proceed to a trial when there is no basis to believe that 

Respondent will appear.2

The Court is mindful of policy considerations in the law that weigh in favor of deciding 

cases on their merits. See Pearson v. Dennison, 353 F.2d 24 (9th Cir. 1965). The Court finds that 

due notice of Respondent’s procedural rights has been conveyed to Respondent. The Court has 

provided ample warning that Respondent’s failure to comply with Court orders may result in the 

dismissal of its notice of contest. Respondent has failed to take advantage of the opportunity to 

advise the Court that it has not abandoned its case before the Commission.3 Every indication 

presently before the Court is that Respondent has now walked away from its contest. 

The Court grants Complainant’s Motion for Default and finds Respondent to be in default 

2 The failure of a party to appear at a trial may result in a decision against that party. See 29 C.F.R. § 2200.64. 3 The Court’s reasoning in Twin Pines Constr., Inc. applies with equal force here:

Having submitted its notice of contest, Respondent has shown no interest since then in moving this case 

forward to trial. Respondent has done nothing to prepare to address the merits of the citations before the Court 

in an orderly fashion. Under these circumstances, the Court sees no worthwhile purpose in allowing this case 

to proceed to a trial when there is no basis to believe that Respondent will appear.

Twin Pines Constr. Inc., 24 BNA OSHC at 1504.
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pursuant to 29 C.F.R. §§ 2200.52(f)(4) and 2200.101(a). “A defaulting party ‘is taken to have 

conceded the truth of the factual allegations in the complaint as establishing the grounds for 

liability as to which damages will be calculated.’” Ortiz-Gonzalez v. Fonovia, 277 F.3d 59, 62-63 

(1st Cir. 2002) (quoting Franco v. Selective Ins. Co., 184 F.3d 4, 9 n.3 (1st Cir. 1999)), Tower 

Painting Co., 22 BNA OSHC 1368, 1375 (No. 07-0585, 2008). Because of the default, the factual 

allegations of the underlying citations relating to liability are taken as true. Dundee Cement Co. v. 

Howard Pipe & Concrete Prods., 722 F.2d 1319, 1323 (7th Cir. 1983). When entering a default 

judgment, factual allegations set forth in the complaint and underlying citations are enough to 

establish a defendant’s liability. Trs. of the Iron Workers Dist. Council of Tenn. Valley and Vicinity 

Pension Fund et al. v. Charles Howell, No. 1:07-cv-5, 2008 WL 2645504, at * 6 (E.D. Tenn. July 

2, 2008); Nat’l Satellite Sports, Inc. v. Mosely Entm’t, Inc., No. 01-CV-74510-DT, 2002 WL 

1303039, at * 3 (E.D. Mich. May 21, 2002). 

The Court finds that the underlying complaint and citations sufficiently state the description 

of the alleged violations and a reference to the standards allegedly violated.4 The Court also finds 

that the Secretary has adequately shown the applicability of the cited standards for each of the 

alleged violations. The Court further finds that the Secretary has sufficiently established that the 

terms of the cited standards were not met by Respondent in each of the alleged violations. The 

Court also finds that Respondent’s employees had access to the cited conditions. Lastly, the 

Secretary has adequately proved that Respondent either knew or should have known of the cited 

conditions. All the Citations’ items at issue are affirmed in their entirety as alleged by the 

Secretary.

4 Section 9(a) of the Act notes that a citation must “describe with particularity the nature of the violation, including 

reference to the provision of the Act, standard, rule, regulation, or order alleged to have been violated.”
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V. Penalties

The Secretary has proposed a total penalty of $60,074 for all the Citations’ items at issue. 

In assessing penalties, the Commission must give due consideration to the gravity of the violation 

and to the employer’s size, prior history of violations and good faith. 29 U.S.C. § 666(j); J.A. 

Jones Constr. Co., 15 BNA OSHC 2201, 2213-14 (No. 87-2059, 1993). These factors are not 

necessarily accorded equal weight, and gravity is generally the principal factor in penalty 

assessment. Trinity Indus., Inc., 15 BNA OSHC 1481, 1483 (No. 88-2691, 1992). The gravity of a 

violation depends upon such matters as the number of employees exposed, duration of exposure, 

precautions taken against injury, and the likelihood that an injury would result. J.A. Jones, 15 BNA 

OSHC at 2213-14. Based on the record of this case and Respondent’s default, the Court finds that 

the Secretary properly considered the statutory factors in his penalty proposal. The Court finds the 

total proposed penalty of $60,074, along with the classification of the violations as alleged by the 

Secretary, for all of the Citations’ items at issue to be appropriate, and the proposed penalties are 

assessed as proposed by the Secretary.

VI. Findings of Fact and Conclusions of Law

 All finding of fact and conclusions of law relevant and necessary to a determination of the 

contested issues have been found and appear in the decision above. See Fed. R. Civ. P. 52(a).

VII. Order

After considering the entire record of this case, Complainant’s Motion to Default and 

Respondent’s lack of response thereto, IT IS ORDERED THAT Complainant’s Motion for Default 

is GRANTED, a default judgment against Respondent is warranted and that Respondent be 

declared in DEFAULT; 

IT IS FURTHER ORDERED THAT Respondent’s Notice of Contest is DISMISSED with 
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prejudice;5 and

based upon the foregoing findings of fact and conclusions of law, IT IS FURTHER 

ORDERED that:

1. Item 1 of Citation 1 is affirmed as a Willful-Serious violation of 29 C.F.R. § 

1926.501(b)(4)(i), and a penalty of $30,037 is assessed; 

2. Item 2 of Citation 1 is affirmed as a Willful-Serious violation of 29 C.F.R. § 

1926.501(b)(10), and a penalty of $30,037 is assessed; and 

3. Item 1 of Citation 2 is affirmed as an Other-than-Serious violation of 29 C.F.R. § 

1926.503(b)(1), and a penalty of $0.00 is assessed. 

SO ORDERED. 

/s/___________________________

The Honorable Dennis L. Phillips

 U.S. OSHRC Judge

Date: August 8, 2022

 Washington, D.C.

5 The trial scheduled to commence on October 11, 2022 at Syracuse, New York is now hereby cancelled.