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Wilson v. Fioritto Construction LLC

United States District Court, S.D. Ohio, Eastern Division

May 10, 2018

CAROL A. WILSON, Administrator, et al., Plaintiffs,
v.
FIORITTO CONSTRUCTION, LLC, Defendant.

          Deavers, Judge..

          OPINION AND ORDER

          GEORGE C. SMITH, JUDGE UNITED STATES DISTRICT COURT.

         This 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.

         I. BACKGROUND

         Plaintiffs 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).

         Defendant 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 the CBA.

         The CBA 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, ¶ 35).

         As 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).

         Fioritto 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 and Check).

         At 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. at 30-31).

         As for 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. at 30).

         Plaintiffs 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).

         II. SUMMARY JUDGMENT STANDARD

         Plaintiffs 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.

         The 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”).

         In 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 ...


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