MEMORANDUM OF DECISION AND ORDER
On November 26, 2010, the Plaintiffs John Vacca, David Perez, Kirk Conaway, and Roy Kohn as Trustees of the Health Fund 917 and the Local 917 Pension Fund and the Health Fund 917 and the Local
Presently before the Court is the Defendants’ Motion for Partial Summary Judgment pursuant to Federal Rule of Civil Procedure (“Fed. R. Civ.P.”) 56 to dismiss the damages claims on behalf of fourteen employees of Central. For the following reasons, the Defendant’s Motion for Partial Summary Judgment is granted.
I. BACKGROUND
Central is a New York company operating parking locations throughout New York. The Plaintiffs Ralph Natale, Kirk Conaway, Roy Cohn, and David Perez are trustees and fiduciaries of Health Fund 917 and the 917 Pension Fund (the “Funds”). The Funds were established pursuant to collective bargaining agreements (“CBAs”) entered into between Local 917 of the International Brotherhood of Teamsters (the “Union”) and various employers operating in the New York City Metropolitan area, including Central. The CBAs required these employers to make certain contributions to the Funds for covered employees.
Excluded from the CBAs are “[s]upervisory employees, including but not limited to managers, assistant managers, supervisors and assistant supervisors ... with the authority to hire, promote, discipline, or otherwise effect changes in the status of employees or effectively recommend such action” (“Status Authority”). (Deck of Douglas Rowe Ex. A ¶ 30.) Also, “[professional, clerical, maintenance, inventory, secretarial, security/guards [sic], and management employees are excluded from the [CBAs].” (Rowe Deck Ex. A ¶¶ 30-31.)
In June 2010, the accounting firm of Steinberg, Steckler & Piceiuro performed an audit of Central’s payroll records, including contributions made to the Funds for the period of July 1, 2004 through December 31, 2004. The firm allegedly discovered $86,975.86 in unpaid health contributions and $17,590.08 in unpaid pension contributions on the part of Central.
On November 26, 2010, the Plaintiffs filed this complaint pursuant to sections 404, 406, 502, and 515 of the Employee Retirement Income Security Act, 29 U.S.C. § 1001 et seq. (“ERISA”), against Central and John Doe. The claims against Central were brought to compel contributions due to the Plaintiff Funds that were identified during the audit.
In addition, the Plaintiffs brought three separate causes of action only against the Defendant John Doe. In particular, the Complaint alleged that, “Doe was a person with discretion and/or authority to pay eontribution[s] to the Health Fund 917 and the Local 917 Pension Fund on behalf of Central,” and “Doe exercised authority and/or control over payment of contributions and monies due to the Fund from Central.” (Compl. ¶¶ 31-32.) Therefore, the claims against Doe are premised in part on the allegation that Doe caused Central not to make the required contributions, thus breaching Doe’s fiduciary duty under Section 404 of ERISA.
On October 28, 2011, the last day of discovery, the Plaintiffs deposed Sonya Mitchell, Central’s payroll manager. According to the Plaintiffs, they learned at that time that Mitchell was the person (1) vested by Central with discretion and control over payment of the allegedly delinquent contributions and (2) who determined not to pay the amounts at issue in this case.
On March 16, 2013 the Defendants filed this motion for Partial Summary Judgment pursuant to Fed.R.Civ.P. 56 with regard to damages for twenty eight employees and also sought an order directing the Plaintiffs to furnish a newly revised auditor’s findings. The Defendants maintained that the auditor’s findings were flawed insofar as the audit included twenty eight employees that were purportedly excluded from the CBAs. The Plaintiffs conceded that fourteen of the twenty eight disputed employees were incorrectly included.
Therefore, after the Defendants filed their Motion for Partial Summary Judgment, the Plaintiffs removed from the action their claims for damages for fourteen employees. The remaining fourteen employees (the “disputed employees”) are Christine A. Joule, Manager; Koduah Mensah, Manager; Robert Gonzalez, Supervisor; Kwaku Boama, Manager; Robert Floreska, Manager/New York Supervisor; Suruj Persaud, Assistant Manager; Henry Amartey, Assistant Manager/New York Supervisor; Charles Pryor, Supervisor; Kenrick McPherson, Supervisor; Gabriel Alexis, Manager; Esmeralda Beaujuin, Assistant Manager/New York Supervisor; Mehari Haile, Assistant Manager; Victor Santana, Maintenance Supervisor; Dioncio Dominguez, Manager.
With respect to these fourteen disputed employees, the Plaintiffs insist that although Central has shown that they were managers, assistant managers, or supervisors, Central must also show that each and every one of them had Status Authority as well. Central contends that all of its managers, assistant managers, supervisors and assistant supervisors enjoy Status Authority by virtue of their position and that management employees are excluded from the CBAs regardless of Status Authority. In response, the Plaintiffs point to contributions made by Central on behalf of some managers, assistant managers, and supervisors as proof that not all managers and assistant managers are excluded. The Defendants assert that these contributions were made in error and do not bear on its position that all such employees have Status Authority and are thus excluded from the CBAs.
II. DISCUSSION
A. Legal Standard
“[S]ummary judgment is appropriate where there exists no genuine issue of material fact and based on the undisputed facts, the moving party is entitled to judgment as a matter of law.” Salahuddin v. Goord,
In Celotex Corp. v. Catrett,
In this regard, “[t]he non-movant must present more than a ‘scintilla of evidence’ or ‘some metaphysical doubt as to the material facts,’ and cannot rely on the allegations in his or her pleadings, conclusory statements, or on ‘mere assertions that affidavits supporting the motion are not credible.’ ” Wojciechowski v. Boening Bros., Inc., No. 09 CV 2579(DRH)(GRB),
The non-movant must show that there is a genuine issue of material fact that a reasonable jury may find in its favor so that judgment as a matter of law would not be appropriate at trial. See Anderson,
B. Burden of Proof
The burden of proof in an ERISA action lies first with the Plaintiff Funds to “establish a prima facie case by demonstrating the inaccuracy of the employer’s contributions.” Local 282 Welfare Trust Fund v. A. Morrison Trucking, Inc., CV-92-2076(JMA),
In the Court’s view, the Defendants have shown prima facie entitlement to summary judgment by pointing to evidence that negates the Plaintiffs’ claims with regard to the fourteen employees in question. The affidavit of Sonya Mitchell, coupled together with documentary evidence of the disputed employees’ statuses for the relevant time period, indicate that those employees were supervisory employees with Status Authority and thus excluded from the CBAs. Therefore, the burden now lies with the Plaintiffs to show evidence upon which they may prevail at trial, namely that the disputed employees were not excluded from the bargaining agreement.
C. The Plaintiffs’ Prima Facie Case
The Plaintiffs maintain that they have made a prima facie case of delinquent contributions by pointing to 14 employees for whom no contributions were made. These 14 employees all had titles of Man
1. The Maintenance Supervisor
The Plaintiffs maintain that maintenance workers are not excluded from the CBAs unless they have Status Authority as well. The pertinent language in the CBAs reads: “Professional, clerical, maintenance, inventory, secretarial, security/guards [sic], and management employees are excluded from the bargaining unit.” (Mitchell Dep. 30-31; Audit Report unnumbered pg. 2.) The unambiguous contract language excludes all management employees regardless of Status Authority. See generally Druck Corp. v. The Macro Fund (U.S.) Ltd., No. 02 Civ 6164(RO),
2. The Managers, Assistant Managers and Supervisors
Both parties agree that the CBAs only exclude managers, assistant managers, and supervisors with Status Authority. The Defendants maintain that all managers, assistant managers, and supervisors inherently possessed Status Authority and were therefore automatically excluded from the CBAs. The Plaintiffs insist that Status Authority must be shown separately for each and every manager, assistant manager, and supervisor that the Defendants seeks to exclude from the CBAs. In this regard, the Defendants offer the sworn deposition testimony of Sonya Mitchell stating that all of their managers, assistant managers and supervisors do in fact have Status Authority and therefore each and every manager, assistant manager and supervisor was excluded from the CBAs.
In response, the Plaintiffs submit three items to establish a prima facie case of delinquent contributions.
First, the Plaintiffs submit the auditor’s report which indicates that the Defendants’ owe contributions for these fourteen employees.
Second, the Plaintiffs contend that Sonya Mitchell’s deposition testimony shows that only those managers with a “salaried management [position] code” necessarily had Status Authority. (See Mitchell Dep. Trans., at 59.)
Finally, the Plaintiffs emphasize that Central has in the past made contributions to the Funds for some managers. This fact, they contend, shows that not all managers, assistant managers, and supervisors have inherent Status Authority and are thus automatically excluded. Rather, they assert, the fact that Central made contributions in the past for some managers tends to show that not all managers have Status Authority. Therefore, contributions may in fact be owing for the fourteen subject employees.
Nonetheless, the CBAs were contracts that covered extensive periods of time and were between the Union and various employers. Ideally, the Defendants would make a separate showing of Status Authority for each and every employee included in the audit that it maintains was excluded from the bargaining unit because of them supervisory authority. The Defendants do not even attempt to make such a showing for eleven of the fourteen disputed employees. Instead, the Defendants offer a sworn affidavit to the effect that during the relevant time period, every employee at Central with the job title of Manager, Assistant Manager or Supervisor, had Status Authority. (Def.’s Rule 56.1 Am. Statement of Material Facts ¶ 26; Aff. of Sonya Mitchell ¶ 12.)
Further, Central insists that the contributions it made in the past for certain managers resulted from of a single mistake in its computerized payroll system and are irrelevant to the question of whether it is actually obligated to make contributions for any of its managers, assistant managers, or supervisors.
The Court will now address, in turn, whether the three allegations supported by evidence tendered by the Plaintiff establish a prima facie case allowing the Plaintiff to survive summary judgment. In sum, even construing all ambiguities and factual inferences in favor of the Plaintiff, the evidence at most suggests that the Defendants may have owed contributions. The Plaintiff fails to show that, even if its allegations were true, the Defendants do owe contributions for the fourteen disputed employees.
a. The Audit Report
In some circumstances, the court may rely on an audit report. See, e.g., Grabois v. Action Acoustics, Inc., No. 94 Civ. 7386(NRB),
In the present case, the audit does not establish that the Defendants were indeed required to contribute funds for the subject employees. It merely establishes that the employer did not make such contributions. The audit has in fact been modified during the course of motion practice to exclude employees originally included, that the Defendants showed, to the Plaintiffs satisfaction, should not have been included. This leads the Court to conclude that the audit’s inclusion of certain employees is not conclusory evidence that the Defendants owed contributions for those employees. The Defendants offer a sworn affidavit that no contributions were owed for any of the disputed employees because they were managers, assistant managers, or supervisors, all of whom had Status Authority and were thus excluded. The Plaintiffs must make a prima facie case that contributions were owing. An audit report that included various employees, some accurately, others admittedly inaccurately,
The case of Hanley v. Orient Beach Club, Inc., No. 96 CIV. 4478(AJP)(MGC),
Similar to Orient Beach, the Plaintiffs in this case have not submitted an affidavit to support the assertions made in its audit report that the disputed employees were in fact included in the CBAs. Moreover, the Plaintiffs’ conclusion that not all managers have Status Authority based on the fact that Central made contributions for some managers is unavailing because even if true, that fact fails to show that the disputed employees did not have Status Authority. At most, that fact shows that the disputed employees may not have had Status Authority. The Court finds that the Plaintiffs fail to make a prima facie case that contributions were owing, or even that the Defendants’ records were inaccurate.
Furthermore, the parties’ discussion of burden-shifting in their briefs is irrelevant at this stage. Burden-shifting occurs in an ERISA trial after the Plaintiff makes a prima facie case showing that the employer’s records are inaccurate. The burden is then shifted to the employer to produce evidence showing the precise amount of work performed by the employee. See Local 282 Welfare Trust Fund,
Burden-shifting with regard to a summary judgment motion is a discussion appropriate when the Plaintiff moves for summary judgment claiming that the Defendant will not be able to meet its higher ERISA burden at trial, after the burden is shifted. See, e.g., Local 282 Welfare Trust Fund,
The Court is also aware of a line of cases under the National Labor Relations Act that bear some similarity to the present case. The National Labor Relations Act, 29 U.S.C. § 151 et seq. (“NLRA” or the “Act”) excludes supervisors from operation of the Act.
The term “supervisor” means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing exercise is not of a merely routine or clerical nature but requires the use of independent judgment.
29 U.S.C. § 152(11). The Congressional purpose of excluding supervisors from the operation of the Act was to prevent “conflicts of interest as supervisors balanced their loyalties to the union with those to their employer.” N.L.R.B. v. Winnebago Television Corp.,
In connection with litigation over whether an employee is covered by the Act, the Supreme Court noted that “[w]hether a particular employee is a supervisor under the Act depends on his or her actual duties, not on his or her title or job classification.” Int’l Longshoremen’s Ass’n, AFL-CIO v. Davis,
In the present case, the Defendants’ do not merely rely on a job title but present sworn testimony that each and every manager, assistant manager, and supervisor at their company possesses Status Authority. In response, the Plaintiffs have failed to make even a colorable case that the disputed employees were not supervisors with Status Authority. As noted later, they have at most shown that these employees may not have had Status Authority. Such a presentation does not meet the burden of showing at least an arguable case that these employees did not have Status Authority and that the Plaintiff thus is entitled to relief. See Fed.R.Civ.P. 8(a) (“A pleading that states a claim for relief must ... show[ ] that the pleader is entitled to relief.” (emphasis added)). At best, the Plaintiffs at best established that the Defendants may have owed contributions, but this is insufficient to state a claim that the Plaintiffs, if their allegations are true, are entitled to relief.
b. Mitchell’s Deposition Testimony
The Plaintiffs reliance on Sonya Mitchell’s deposition testimony to create doubt as to whether all fourteen of the disputed employees had Status Authority despite holding the title of manager, assistant manager, or supervisor is misguided. First, the Plaintiffs take Mitchell’s deposition testimony out of context, extracting one line stating that only employees with salaried management position codes have Status Authority. This testimony was given in the context of Mitchell explaining her approach in determining that certain employees included in the audit were not included in the CBAs:
Q Did you object to findings for all managers?
A I objected to findings of any position that was not part of the collective bargaining agreement. We don’t have a manager position that is part of the collective bargaining agreement.... If they’re in a specific position code they would [automatically have Status Authority],
Q What position codes would that be? A Salaried management codes. There are several different [salaried management] codes they might be in or at leastsome of the people that were in the [audit] findings were in [such salaried management position codes].
(Mitchell Dep., at 58-60.)
Mitchell was then asked about specific employees that she indicated were excluded based on their position codes. In response to each such employee, Mitchell indicated that they were excluded based on their salaried management position code. (Mitchell Dep. 60-62.) There is even reference made to a document upon which Mitchell set out her reasons for her objections regarding each and every manager, assistant manager, and supervisor included in the audit. (Mitchell Dep. 60.) The deposition testimony, taken as a whole, actually demonstrates that Mitchell made a determination for each and every disputed employee that their position code indicated that they possessed Status Authority during the relevant time period and were thus properly excluded from the CBAs. (Mitchell Dep. 60-62.)
Finally, Sonya Mitchell’s sworn affidavit makes clear that each and every employee that she determined was excluded did in fact have Status Authority. (See Mitchell Aff. ¶¶ 12, 20.) Therefore, the Court finds that there is no genuine issue of fact arising out of Sonya Mitchell’s testimony that each and every disputed employee had Status Authority during the relevant time period.
c. Previous Contributions for Managers
The fact that Central previously made contributions to the funds for certain managers may go farther than the prior pieces of evidence in showing a disputed issue of material fact but still fails to create a prima facie case for the Plaintiffs. Mitchell averred that any contributions on behalf of managers was in error and does not prove any concession by Central that contributions are owed for some managers. (Mitchell Aff. ¶¶ 22-24.)
The Court finds that contributions are just as likely the result of a mistake in Central’s payroll system, which handles over 3,000 employees as it is the result of a purposeful contribution for managers determined not to have Status Authority. That allegation alone would not be sufficient to make the Plaintiffs’ prima facie case at trial, thereby shifting the burden to the Defendant to produce evidence showing the amount of work performed. See Local 282 Welfare Trust Fund,
As such, the Plaintiffs conclusory allegations that the Defendants previously purposely paid benefits to some employees that may have been managers are insufficient to defeat this motion for summary judgment. See Wojciechowski,
Put simply, the Plaintiffs evidence only shows that the disputed employees may
III. CONCLUSION
For the foregoing reasons, it is hereby
ORDERED, that the Defendant’s Motion for Partial Summary Judgment is granted and the complaint is dismissed with prejudice with respect to Christine A. Joule; Koduah Mensah; Robert Gonzalez; Kwaku Boama; Robert Floreska; Suruj Persaud; Henry Amartey; Charles Pryor; Kenrick McPherson; Gabriel Alexis; Esmeralda Beaujuin; Mehari Haile; Victor Santana; and Dioncio Dominguez.
SO ORDERED.