United States District Court, S.D. Ohio, Eastern Division
CAROL A. WILSON, Administrator, et al., Plaintiffs,
FIORITTO CONSTRUCTION, LLC, Defendant.
OPINION AND ORDER
C. SMITH, JUDGE UNITED STATES DISTRICT COURT.
matter is before the Court upon the Motion for Summary
Judgment of Plaintiffs Carol A. Wilson, Administrator, and
Trustees of the Ohio Operating Engineers Health and Welfare
Plan, the Ohio Operating Engineers Pension Fund, the Ohio
Operating Engineers Education and Training Fund, and the Ohio
Operating Engineers Apprenticeship Fund
(“Plaintiffs' Motion for Summary Judgment”)
(Doc. 13). The Motion is fully briefed and ripe for
disposition. For the following reasons, Plaintiffs'
Motion for Summary Judgment is GRANTED IN
PART and DENIED IN PART.
are the Administrator and Trustees of the Ohio Operating
Engineers Health and Welfare Plan, the Ohio Operating
Engineers Pension Fund, the Ohio Operating Engineers
Education and Safety Fund, and the Ohio Operating Engineers
Apprenticeship Fund (the “Funds”). The Funds are
jointly administered, multiemployer fringe benefit programs
established for the benefit of employees of contractors who
perform work pursuant to the “Ohio Highway Heavy
Agreement Effective May 1, 2010 through April 30, 2013”
between the International Union of Operating Engineers, Local
18 and its Branches (AFL-CIO) (the “Union”) and
the Labor Relations Division of the Ohio Contractors
Association (Doc. 13-1, Collective Bargaining Agreement
(“CBA”)). The Funds provide health and welfare,
retirement, and other fringe benefits to their beneficiaries.
(Doc. 1, Compl. ¶¶ 2-3).
Fioritto Construction, LLC is in the business of heavy
highway construction and typically has four to five
employees. (Doc. 14-7, Fioritto Dep. at 9). Shortly after it
was formed in 2011, Fioritto Construction entered into a
one-page “AGREEMENT - Highway Heavy Construction”
with the Union (Doc. 1, PAGEID #12) on March 14, 2011,
whereby Fioritto Construction agreed to adopt all terms of
covers work done by operating engineers, primarily the
operation of various types of construction equipment, such as
backhoes and “Bobcat-type and/or SkidSteer
Loaders.” (Id. Art. II, ¶ 4, Ex. A,
Schedule 1). Employers are also required by the CBA to employ
Union members to carry out work covered by the CBA.
(Id., Art. II ¶ 4). Further, the CBA requires
employers to make contributions to the Funds. Pertinent to
this Motion are the following provisions:
. “[A]ny person, firm or corporation
who as an Employer becomes signatory to this Agreement . . .
shall be bound to make Health and Welfare payments, Pension
payments, Apprenticeship Fund and Safety and Educational Fund
payments required under Article V for all work performed
within the work jurisdiction outlined in Article I of this
Agreement.” (Doc. 13-1, CBA Art. II, ¶ 3).
. “Fringe benefit contributions shall
be paid . . . for all hours paid to each employee by the
Employer under this Agreement.” (Doc. 13-1, CBA Art. V,
provided by the CBA, the Funds conducted an audit of Fioritto
Construction's payroll records in November 2016 for the
period of July 1, 2015 to November 1, 2016. (Doc. 13-1,
Polsinelli Aff. ¶ 6). The audit disclosed that Fioritto
Construction had not made fringe benefit payments during the
audit period for work done by Thomas Fioritto (the sole owner
of Fioritto Construction), Tom Yelling, and Mario Finelli.
(Doc. 14-7, Fioritto Dep. at 22-23). The Funds sent a
deficiency letter to Fioritto Construction dated January 5,
2017 outlining the amount of delinquent contributions owing
for each of these three individuals. (Id.; Doc.
13-2, PAGEID #158-64).
Construction agreed that contributions were owed for Mr.
Finelli, but not for Mr. Fioritto or Mr. Yelling.
Accordingly, on January 12, 2017, Fioritto Construction sent
a check to the Funds for $963.35, which represented the
amount owed for Mr. Finelli in the form of fringe benefit
contributions, Union dues, and late fees. (Doc. 14-1, Letter
deposition, Thomas Fioritto (in his capacity as corporate
representative under Federal Rule of Civil Procedure
30(b)(6)) admitted that he performed work for Fioritto
Construction by operating equipment, specifically, a backhoe
and a skid steer (which Mr. Fioritto described as the generic
name for a Bobcat type of vehicle). (Doc. 14-7, Fioritto Dep.
at 11-12). Mr. Fioritto testified that Mr. Yelling also
operates the skid steer. (Id. at 12-13). Despite his
operation of equipment listed in the CBA, Mr. Fioritto
asserted that Fioritto Construction was not responsible for
fringe benefit payments for himself because he had asked to
join the Union multiple times and was refused. (Id.
Mr. Yelling, Mr. Fioritto testified that no fringe benefit
contributions were owed to the Funds on his behalf because he
was classified as a “laborer” as opposed to an
operating engineer, and because Fioritto Construction made
payments on Mr. Yelling's behalf to a different set of
fringe benefit funds under a collective bargaining agreement
with the laborers' union. (Id. at 18). Mr.
Fioritto had also been informed by the laborers' union
that it had jurisdiction over the skid steer. (Id.
commenced this action under 29 U.S.C. §§ 1145 and
1132 on April 14, 2017. (Doc. 1, Compl.) Plaintiffs seek to
recover the amount of unpaid delinquent fringe benefit
contributions owing for each of Mr. Finelli, Mr. Yelling, and
Mr. Fioritto “in the amount of $17, 034.04, plus
accumulated interest charges in the amount of $3, 968.26
calculated through November 30, 2017, plus late charges of
$8.40 per day thereafter and statutory interest in the amount
of $3, 968.26 calculated through November 30, 2017, plus late
charges of $8.40 per day thereafter as long as the judgment
remains unpaid, ” in addition to attorney's fees
and costs. (Doc. 13, Mot. at 9). Plaintiffs now move for
summary judgment on all of their claims (other than
attorney's fees and costs, which Plaintiffs indicate they
will seek in a post-judgment motion).
SUMMARY JUDGMENT STANDARD
move for summary judgment pursuant to Rule 56 of the Federal
Rules of Civil Procedure. Summary judgment is appropriate
when “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); Berryman v. SuperValu
Holdings, Inc., 669 F.3d 714, 716-17 (6th Cir. 2012).
The Court's purpose in considering a summary judgment
motion 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 v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). A genuine
issue for trial exists if the Court finds a jury could return
a verdict, based on “sufficient evidence, ” in
favor of the nonmoving party; evidence that is “merely
colorable” or “not significantly probative,
” however, is not enough to defeat summary judgment.
Id. at 249-50.
party seeking summary judgment shoulders the initial burden
of presenting the Court with law and argument in support of
its motion as well as identifying the relevant 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 (1986)
(quoting Fed.R.Civ.P. 56). If this initial burden is
satisfied, the burden then shifts to the nonmoving party to
set forth specific facts showing that there is a genuine
issue for trial. See Fed. R. Civ. P. 56(e); see
also Cox v. Kentucky Dep't of Transp., 53 F.3d 146,
150 (6th Cir. 1995) (after burden shifts, nonmovant must
“produce evidence that results in a conflict of
material fact to be resolved by a jury”).
considering the factual allegations and evidence presented in
a motion for summary judgment, the Court “views factual
evidence in the light most favorable to the non-moving party
and draws all reasonable inferences in that party's
favor.” Barrett v. Whirlpool Corp., 556 F.3d
502, 511 (6th Cir. 2009). But self-serving affidavits alone
are not enough to create an issue of fact sufficient to
survive summary judgment. Johnson v. Washington Cty.
Career Ctr., 982 F.Supp.2d 779, 788 (S.D. Ohio 2013)
(Marbley, J.). “The mere existence of a scintilla of
evidence to support [the non-moving party's] position
will be insufficient; there must ...