Service Employees International Union National Industry Pension Fund v. Jersey City Healthcare Providers, LLC ( 2019 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SERVICE EMPLOYEES INTERNATIONAL
UNION NATIONAL INDUSTRY PENSION
FUND, et al.,
Plaintiffs Civil Action No. 17-1657 (CKK)
v.
JERSEY CITY HEALTHCARE
PROVIDERS, LLC,
Defendant
MEMORANDUM OPINION
(February 12, 2019)
Plaintiffs, Service Employees International Union National Industry Pension Fund and
the Fund’s Trustees, bring this action against Defendant, Jersey City Healthcare Providers, LLC,
under the Employee Retirement Income Security Act of 1974 (“ERISA”). See 29 U.S.C. § 1001
et seq. Based on alleged non-payments and underpayments to Plaintiffs’ pension fund from
January 2012 through April 2017, Plaintiffs seek $34,383.66 in outstanding contributions,
liquidated damages, interest, and audit testing fees. Plaintiffs also request attorneys’ fees and
costs and additional accrued interest. Defendant argues that it has made and continues to make
all proper pension fund contributions. Plaintiffs have moved for summary judgment.
Upon consideration of the pleadings,1 the relevant legal authorities, and the record as it
currently stands, the Court GRANTS Plaintiffs’ Motion for Summary Judgment. The Court
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The Court’s consideration has focused on the following documents:
• Pls.’ Mot. for Summary Judgment (“Pls.’ Mot.”), ECF No. 18;
• Def.’s Opp’n to Pls.’ Mot. for Summary Judgment and Mem. Of Points and Authorities
in Support of Def.’s Opp’n (“Def.’s Opp’n”), ECF No.19;
• Pls.’ Reply in Support of their Mot. for Summary Judgment (“Pls.’ Reply”), ECF No. 20.
In an exercise of its discretion, the Court finds that holding oral argument in this action would
not be of assistance in rendering a decision. See LCvR 7(f).
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concludes that Defendant was required to make increased supplemental contribution payments
following the passage of the Multiemployer Pension Reform Act of 2014 (“MPRA”). See 29
U.S.C. § 1085. Because Defendant failed to make the increased supplemental contributions from
September 2015 to April 2017, Plaintiffs are owed $32,715.50 in damages to account for the
unpaid contributions, interest, and liquidated damages. The Court also concludes that Plaintiffs
are owed $1,668.16 in unpaid contributions, interest, liquidated damages, and audit testing fees
resulting from the pension fund’s 2012-2013 audit of Defendant. Accordingly, Plaintiffs are
GRANTED $34,383.66 in total damages based on Defendant’s September 2015 to April 2017
unpaid supplemental contributions and on Defendant’s 2012-2013 audit. Finally, the Court
GRANTS Plaintiffs’ motion for injunctive relief requiring Defendant to remit reports and
contributions going forward in accordance with the collective bargaining agreements, the
pension fund’s documents, and federal law as Defendant has demonstrated a repeated
unwillingness to comply with these requirements.
I. BACKGROUND
Plaintiffs and Defendant entered into a collective bargaining agreement (“CBA”)
spanning the period from April 1, 2010 to March 31, 2014. CBA, Ex. 1, ECF No. 18-1, 5. As is
relevant to this case, the CBA established terms and conditions of employment for certified
nursing assistants (“CNAs”), dietary staff, housekeeping staff, and recreational aides. Id. at 1A.
Even though, by its terms, the CBA expired on March 31, 2014, Defendant has continued to
make payments and remit reports to the pension fund in accord with the terms and conditions of
the CBA. Pls.’ Statement of Material Facts, ECF No. 18-9, ¶ 6; Def.’s Res. To Pls.’ Statement of
Material Facts, ECF No. 19-1, ¶ 84.
Under the terms of the CBA, Defendant “agrees to make periodic contributions on behalf
of all employees covered by the Collective Bargaining Agreement to the Service Employees
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International Union National Industry Pension Fund” and “agrees to become and remain a
participating employer in the Fund throughout the term of this Collective Bargaining Agreement,
including any extensions thereof.” CBA, Ex. 1, ECF No. 18-1, 25.1-2. The CBA also states that
Defendant “agrees to be bound by the provisions of the Agreement and Declaration of Trust
establishing the Fund, as it may from time to time be amended, and by all resolutions and rules
adopted by the Trustees pursuant to the powers delegated to them by the Agreement, including
collection policies.” Id. at 25.4.
Pursuant to the Trust agreement, the trustees adopted a Statement of Policy for Collection
of Delinquent Contributions (“Collection Policy”). See generally Collection Policy, Ex. 3, ECF
No. 18-3. Under the Collection Policy, employers are required to make contributions to the
pension fund on or before the 15th of the month after the month in which the work was
performed. Id. at 2.1. If the contributions are not received by their due date, the pension fund is
entitled to collect interest on delinquent contributions at the rate of 10% per annum. Id. at 5.1.
The Collection Policy further permits the pension fund to collect liquidated damages for any
month where an employer is delinquent in its contributions. Id. at 5.2. The amount of liquidated
damages is calculated as the greater of the interest due or 20% of the delinquent contributions.
Id.
Pursuant to the Pension Protection Act of 2006 (“PPA”), the pension fund was
determined to be in “critical” status for the plan years 2009 through 2017. See 29 U.S.C § 1085.
Employers were notified of the pension fund’s critical status by letters sent annually from 2009
to 2017. Ex. 4, ECF No. 18-4 (critical status letters to employers). Because the plan was in
critical status, the PPA required the plan to implement a rehabilitation plan to correct its financial
situation. 29 U.S.C. § 1085(e)(1). Under the rehabilitation plan adopted by the pension fund,
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employers were required to make supplemental contributions. Ex. 5, ECF no. 18-5 (letter to
employers explaining rehabilitation plan). Employers could choose to make their supplemental
contributions under a Preferred Schedule or a Default Schedule. Id.
When Defendant negotiated its CBA in 2010, the parties agreed upon the Preferred
Schedule for supplemental contributions. CBA, Ex. 1, ECF No. 18-1, 25.3. When the CBA
expired on March 31, 2014, the pension fund was still in critical status. CBA, Ex. 1, ECF No. 18-
1, 5 (setting the term of the contract). Following the CBA’s expiration, the parties failed to
successfully negotiate a new CBA. Pls.’ Statement of Material Facts, ECF No. 18-9, ¶ 28; Def.’s
Res. To Pls.’ Statement of Material Facts, ECF No. 19-1, ¶ 82.
Lacking a new CBA, the pension fund continued to charge Plaintiffs for supplemental
contributions at the same rate as had been charged prior to the CBA’s expiration-37.6% of its
base contractual contribution-until January 1, 2015. But, relying on the enactment of the MPRA,
on January 1, 2015, the pension fund implemented a continuation of the Preferred Schedule
which increased the rate of Defendant’s supplemental contributions. Pls.’ Statement of Material
Facts, ECF No. 18-9, ¶¶ 29-30. Defendant contends that the rate of its supplemental
contributions should not have increased because the MPRA was inapplicable as the parties’ CBA
expired prior to the MPRA’s enactment. Def.’s Res. To Pls.’ Statement of Material Facts, ECF
No. 19-1, ¶¶ 29-30.
Based on Defendant’s failure to pay the increased rates for supplemental contributions,
Plaintiffs argue that Defendant underpaid its monthly contributions between September 2015 and
April 2017. Including delinquent contributions, interest, and liquidated damages, Plaintiffs allege
that Defendant owes $11,814.09 for dietary and housekeeping employees, $19,532.56 for CNAs,
and $1,368.85 for recreational employees. Pls.’ Statement of Material Facts, ECF No. 18-9, ¶¶
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35-44. Accordingly, Plaintiffs argue that Defendant owes a total of $32,715.50 for delinquent
contributions, interest, and liquidated damages based on a failure to pay increased supplemental
contribution rates between September 2015 and April 2017. Defendant disputes this amount,
contending that it made all required payments during this timeframe. Def.’s Res. To Pls.’
Statement of Material Facts, ECF No. 19-1, ¶ 105.
In addition to the alleged damages owed from September 2015 to April 2017, Plaintiffs
argue that Defendant also owes damages based on a prior audit of Defendant’s contributions. In
2014, the pension fund audited Defendant’s contributions for calendar years 2012-2013. Pls.’
Statement of Material Facts, ECF No. 18-9, ¶ 45; Def.’s Res. To Pls.’ Statement of Material
Facts, ECF No. 19-1, ¶ 45. Defendant produced hundreds of pages of records in response to the
pension fund’s audit request, including records indicating hours worked, amounts paid, and
employment status of employees. Pls.’ Statement of Material Facts, ECF No. 18-9, ¶ 47; Def.’s
Res. To Pls.’ Statement of Material Facts, ECF No. 19-1, ¶ 85.
Based on the results of the 2012-2013 audit, the pension fund determined that Defendant
owed $63.23 in delinquent contributions, interest, and liquidated damages for its dietary and
housekeeping employees. Pls.’ Statement of Material Facts, ECF No. 18-9, ¶¶ 53-58. The
pension fund also determined that Defendant owed $1,604.93 in delinquent contributions,
interest, liquidated damages, and audit testing fees for its recreational employees. Id. at ¶¶ 59-65.
Accordingly, Plaintiffs contend that Defendant owes a total of $1,668.16 in delinquent
contributions, interest, liquidated damages, and audit testing fees based on the 2013-2013 audit.
Defendant disputes this amount, contending that it made all required payments during this
timeframe. Def.’s Res. To Pls.’ Statement of Material Facts, ECF No. 19-1, ¶ 105.
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On August 15, 2017, Plaintiffs filed this lawsuit under ERISA to collect $34,383.66 in
allegedly unpaid contributions, interest, liquidated damages, audit testing fees. See generally
Compl., ECF No. 1. The parties subsequently engaged in discovery. See generally Joint
Discovery Plan, ECF No. 15. Plaintiffs have now moved for summary judgment. See generally,
Pls.’ Mot, ECF No. 18.
II. LEGAL STANDARD
Summary judgment is appropriate where “the movant shows that 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). The mere existence of some factual dispute is insufficient on its own to bar
summary judgment; the dispute must pertain to a “material” fact. Id. Accordingly, “[o]nly
disputes over facts that might affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). Nor may summary judgment be avoided based on just any disagreement as to
the relevant facts; the dispute must be “genuine,” meaning that there must be sufficient
admissible evidence for a reasonable trier of fact to find for the non-movant. Id.
In order to establish that a fact is or cannot be genuinely disputed, a party must (a) cite to
specific parts of the record-including deposition testimony, documentary evidence, affidavits or
declarations, or other competent evidence-in support of its position, or (b) demonstrate that the
materials relied upon by the opposing party do not actually establish the absence or presence of a
genuine dispute. Fed. R. Civ. P. 56(c)(1). Conclusory assertions offered without any factual basis
in the record cannot create a genuine dispute sufficient to survive summary judgment. See Ass'n
of Flight Attendants-CWA, AFL-CIO v. U.S. Dep't of Transp., 564 F.3d 462, 465-66 (D.C. Cir.
2009). Moreover, where “a party fails to properly support an assertion of fact or fails to properly
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address another party’s assertion of fact,” the district court may “consider the fact undisputed for
purposes of the motion.” Fed. R. Civ. P. 56(e).
When faced with a motion for summary judgment, the district court may not assess
credibility or weigh evidence; instead, the evidence must be analyzed in the light most favorable
to the non-movant, with “all justifiable inferences ... drawn in his favor.” Anderson, 477 U.S. at
255. “‘If material facts are at issue, or though undisputed, are susceptible to divergent inferences,
summary judgment is not available.’” Moore v. Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009)
(quoting Kuo-Yun Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994)). In the end, the district
court’s task is to determine “whether the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.”
Anderson, 477 U.S. at 251-52. In this regard, the non-movant must “do more than simply show
that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd.
v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). “If the evidence is merely colorable, or is not
significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249-50
(internal citations omitted).
III. DISCUSSION
Plaintiffs bring this case seeking delinquent contributions and other damages under
Section 515 of ERISA which provides that “[e]very employer who is obligated to make
contributions to a multiemployer plan under the terms of the plan or under the terms of a
collectively bargained agreement shall, to the extent not inconsistent with law, make such
contributions in accordance with the terms and conditions of such plan or such agreement.” 29
U.S.C. § 1145. This section of ERISA “makes a federal obligation of an employer’s contractual
commitment to contribute to a multiemployer pension fund.” Flynn v. R.C. Tile, 353 F.3d 953,
958 (D.C. Cir. 2004). Accordingly, it is “well-established that the failure to make contributions
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to a union trust fund as required by a collective bargaining agreement constitutes a violation of
ERISA § 515.” Int’l Painters & Allied Trades Indus. Pension Fund v. Davanc Contracting, Inc.,
808 F. Supp. 2d 89, 95 (D.D.C. 2011) (internal quotations omitted). Moreover, when a Court
determines that an employer violated Section 515 of ERISA by failing to make contributions to a
pension fund as required by a collective bargaining agreement or by the pension fund’s
documents, the plan is entitled to recover the contributions, interest, liquidated damages,
reasonable attorneys’ fees and costs, and all other appropriate equitable relief. 29 U.S.C. §
1132(g)(2).
Plaintiffs move for summary judgment as to all known outstanding contributions,
liquidated damages, interest, and audit testing fees in the amount of $34,383.66 plus attorneys’
fees and costs and additional accrued interest. Defendant has two primary arguments as to why
the Court should not grant summary judgment. First, Defendant contends that it was not required
to pay the increased rate for supplemental contributions between September 2015 and April
2017. But, the Court concludes that Defendant was required to make supplemental contributions
at the increased rate based on the MPRA. Second, Defendant claims that there are genuine
disputes of material fact as to the alleged damages owed. But, the Court concludes that Plaintiffs
have produced sufficient evidence proving that they are entitled to the requested $34,383.66 in
damages and Defendant has not provided contrary evidence. In addition to monetary damages,
the Court also concludes that Plaintiffs have established that injunctive relief requiring
Defendant to act in accordance with the collective bargaining agreements, the pension fund’s
documents, and federal law is appropriate. Accordingly, Plaintiffs’ motion for summary
judgment is GRANTED.
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A. Applicability of the MPRA to Defendant’s Supplemental Contributions
The Court will first address whether or not Defendant was required to pay an increased
rate for supplemental contributions to the pension fund pursuant to the MPRA between
September 2015 and April 2017. Due to the pension fund’s critical status, Defendant was
obligated to make supplemental contributions under the rehabilitation plan. Ex. 5, ECF No. 18-5
(explaining the rehabilitation plan to employers). The parties dispute the amount of supplemental
contributions owed between September 2015 and April 2017. As explained below, the Court
finds that Defendant was required to make supplemental contributions to the pension fund at the
rate required by the MPRA.
Under the PPA, multi-employer pension funds undergo an annual certification process in
which the plan’s actuary assesses the financial health of the plan. 29 U.S.C. § 1085(b)(3)(A).
Plaintiffs’ pension fund has been designated “critical” each year between 2009 and 2017.
Because of the fund’s critical status, the pension fund was required to develop a rehabilitation
plan to improve funding. Id. at § 1085(a)(2). The rehabilitation plan was required to include
reductions in future benefits and increases in future employer contributions. Id. at §
1085(e)(1)(B), (e)(3)(A).
The supplemental contributions required employers to make contributions above the
existing base contribution established by contract as expressed as a percentage of the base
contribution. The pension fund’s rehabilitation plan allowed employers to choose between a
Preferred and a Default Schedule for making supplemental contributions. Ex. 5, ECF No. 18-5
(letter to employers explaining rehabilitation plan). Defendant bargained for the Preferred
Schedule in its CBA which was effective between April 1, 2010 and March 31, 2014. CBA, Ex.
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1, ECF No. 18-1, 25.3. Under the Preferred Schedule, Defendant’s supplemental contribution
rate increased to 37.6% of its base contribution as of April 1, 2013 and would have increased to
48.3% as of April 1, 2014 if the CBA had not expired. Declaration of Kisha Smith, ECF No. 18-
7, ¶ 26. However, on March 31, 2014, the CBA expired while the plan was still in critical status.
The parties dispute the effect of the CBA’s expiration.
Because the CBA expired while the plan was in critical status, Plaintiffs argue that rate of
Defendant’s supplemental contributions was set by the amendments to the PPA made in 2014
through the MPRA. Under the MPRA, a pension fund must continue to enforce an employer’s
obligation to contribute at the rates required under its previously-selected schedule if the parties
fail to negotiate a contract in conformance with the rehabilitation plan within 180 days of the
expiration of the parties’ prior agreement. 29 U.S.C. § 1085(e)(3)(C)(ii), (iii).
Here, Defendant had contracted to make supplemental contributions in accord with the
rehabilitation plan’s Preferred Schedule. While the pension fund was still in critical status, the
CBA expired. Accordingly, under the MPRA, the pension fund was required to implement the
Preferred Schedule on Defendant 180 days after the CBA’s expiration. Id. But, the CBA expired
on March 31, 2014, approximately nine months prior to the MPRA’s effective date of December
16, 2014. Plaintiffs ask that the Court begin applying the supplemental contribution rates
required under the MPRA on January 1, 2015, which is after the MPRA’s effective date and
more than 180 after the CBA’s expiration.
Accordingly, from the expiration of the CBA to the end of the 2014 calendar year, the
pension fund charged Defendant for supplemental contributions at the rate of 37.6% as required
by Defendant’s contractual selection of the Preferred Schedule. But, after January 1, 2015,
Plaintiffs contend that Defendant’s supplemental contribution rates are controlled by the MPRA.
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As such, from January 1, 2015 to January 1, 2016, the pension fund charged Defendant for
supplemental contributions at the rate of 48.3% as required by the pension fund’s
implementation of the Preferred Schedule under the MPRA. Also based on the pension fund’s
implementation of the Preferred Schedule as required by the MPRA, the pension fund charged
Defendant for supplemental contributions at a rate of 59.8% between January 1, 2016 and
January 1, 2017 and at a rate of 72.1% between January 1, 2017 and January 1, 2018.
Declaration of Kisha Smith, ECF No. 18-7, ¶ 26.
Defendant argues that the increased rates for supplemental contributions required under
the MPRA should not apply because the CBA expired prior to the MPRA’s effective date.
Because the MPRA was not in effect during the duration of the parties’ contractual agreement,
Defendant argues that to apply the MPRA to Defendant’s September 2015 to April 2017
payments would have an impermissibly retroactive effect.
The Court agrees with Defendant that the MPRA amendments are likely not retroactive
amendments. However, the retroactivity of the MPRA is irrelevant as Plaintiffs do not request a
retroactive application of the law. Plaintiffs do not seek the increased supplemental contribution
rates prior to the enactment of the MPRA. Instead, Plaintiffs seek the increased supplemental
contribution rates as of January 1, 2015, the first day of the plan year following the enactment of
the MPRA.
“A statute does not operate ‘retrospectively’ merely because it is applied in a case arising
from conduct antedating the statute’s enactment or upsets expectations based in prior law.”
Landgraf v. USI Film Products, 511 U.S. 244, 269 (1994) (internal citation omitted). In order to
determine if the application of a statue has an impermissible retroactive effect, courts first look to
“whether Congress has expressly prescribed the statute’s proper reach.” Fernandez-Vargas v.
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Gonzales, 548 U.S. 30, 37 (2006) (internal quotation marks omitted). Here, Congress has not
expressly prescribed the reach of the MPRA amendments. Next, courts consider “whether
applying the statute to the person objecting would have a retroactive consequence in the
disfavored sense of affecting substantive rights, liabilities, or duties [on the basis of] conduct
arising before [its] enactment.” Id. (internal quotation marks omitted). Only if the applying the
statute would have such an impermissible effect does the court then apply the presumption
against retroactivity by construing the statute as inapplicable. Id. at 37-38.
Here, applying the MPRA to Defendant’s supplemental contributions after January 1,
2015 would not affect Defendant’s duties on the basis of conduct arising before the MPRA’s
enactment. Following the expiration of the CBA, Defendant received two “critical” status letters
informing Defendant that there would be no changes to the schedules of contribution rates under
the rehabilitation plan. Declaration of Kisha Smith, ECF No. 18-7, ¶ 23.2 Accordingly,
Defendant was aware that the rates for supplemental contributions remained the same under the
rehabilitation plan’s Preferred Schedule. Application of the increased supplemental contribution
rates after the MPRA’s enactment on January 1, 2015 is not retroactive because such application
is based on Defendant’s continued participation in the fund, conduct arising after the MPRA’s
enactment.
In making this determination, the Court receives guidance from the United States
Supreme Court’s decision in Martin v. Hadix, 527 U.S. 343 (1999). In that case, the Supreme
2
Defendant does not deny receiving the critical status letters informing employers that there
would be no changes to the schedule of contribution rates required under either schedule of the
pension fund’s rehabilitation plan. Pls.’ Statement of Material Facts, ECF No. 18-9, ¶ 27.
Instead, Defendant states that this fact is “immaterial and contain[s] improper legal conclusions.”
Def.’s Res. To Pls.’ Statement of Material Facts, ECF No. 19-1, ¶ 27. But the Court find that this
fact is neither immaterial nor an improper legal conclusion.
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Court applied the Prison Litigation Reform Act’s (“PLRA”) fee limits to limit attorneys’ fees
earned after the PLRA’s enactment, but not to limit those fees earned before the enactment. The
Supreme Court explained that attorneys conducting post-judgment monitoring before the
PLRA’s enactment had a reasonable expectation that they would be compensated at pre-PLRA
rates, so the application of the PLRA fee-limit to those fees would have an impermissible
retroactive effect. Martin, 527 U.S. at 358. But, with respect to post-judgment monitoring
performed after the effective date of the PLRA, the Court concluded that there was no
retroactivity problem. Following the PLRA’s enactment, the attorneys were on notice that their
fees had been limited and they could choose not to perform services at the new, lower rate. Id. at
360. “In other words, as applied to work performed after the effective date of the PLRA, the
PLRA has future effect on future work; this does not raise retroactivity concerns.” Id. The Court
explained that the attorneys pre-PLRA conduct in deciding to file suit was not impermissibly
affected because if the attorneys were dissatisfied with the fee limits imposed by the PLRA’s
enactment, those attorneys could cease completing work during the post-judgment monitoring
stage. Id.
Similarly, here, the MPRA would have a retroactive effect only if Plaintiffs asked to
apply the increased supplemental contribution rates to payments occurring before the MPRA’s
enactment. But, Plaintiffs do not ask for such an application. Instead, they ask to apply the
increased supplemental contribution rates only to payments occurring after the MPRA was
enacted. Such application does not have a retroactive effect. With the enactment of the MPRA,
Defendant was on notice of the increased supplemental contribution rates. If Defendant found the
new terms unacceptable, Defendant could have withdrawn from the pension fund. As applied to
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conduct occurring “after the effective date of the [MPRA], the [MPRA] has future effect on
future [conduct]; this does not raise retroactivity concerns.” Martin, 527 U.S. at 360.
For the foregoing reasons, the Court concludes that applying the MPRA’s increased
supplemental contribution rates to payments made after the enactment of the MPRA does not
raise retroactivity concerns. Accordingly, after January 1, 2015, Defendant was required to make
supplemental contribution payments in accord with the rates set by the Preferred Schedule under
the rehabilitation plan as mandated by the MPRA. Plaintiffs are entitled to collect these unpaid
supplemental contributions under the PPA which provides that “any failure to make a
contribution under a schedule of contribution rates provided under [a rehabilitation plan
contribution schedule] shall be treated as a delinquent contribution under [Section 515 of
ERISA] and shall be enforceable as such.” 29 U.S.C. § 1085(e)(3)(C)(iv); 29 U.S.C. 1145
(Section 515 of ERISA, requiring employers to make contributions under the terms of the
pension fund’s plan or other agreement).
B. Genuine Disputes of Material Facts as to Damages Owed
Even if the MPRA is applicable, Defendant argues that the Court should not grant
Plaintiffs’ motion for summary judgment as to damages because there remain genuine disputes
of material fact concerning damages owed for unpaid supplemental contributions between
September 2015 and April 2017 and for damages owed from the pension plan’s 2012-2013 audit.
Defendant presents three primary arguments as to why there remain genuine disputes of material
fact concerning damages owed. First, Defendant argues that the method by which Plaintiffs
calculated damages is speculative and unclear. Second, Defendant contends that Plaintiffs
provided inadequate proof of their measure for the damages. Finally, Defendant claims that
Plaintiffs’ 2012-2013 audit incorrectly identified Laura Bazile as a union employee subject to
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contributions. The Court is not persuaded by Defendant’s arguments and will address each in
turn.
First, Defendant claims that the method by which Plaintiffs calculated their damages is
speculative and unclear. Specifically, Defendant faults Plaintiffs for failing to indicate what
eligibility criteria the pension fund applied when determining whether or not Defendant made the
required contribution payments. Defendant also faults Plaintiffs for not indicating what portions
of an employee’s pay the pension fund used as the basis for that person’s pension fund
contribution. According to Defendant, “without any of this key information, it is impossible to
know whether the Pension Fund is accurately assessing who is eligible for contributions and
whether the proper portions of each eligible employee’s pay are being used to calculate the
contributions.” Def.’s Opp’n, ECF No. 19, 11.
“While damages are not required to be proven with mathematical certainty, there must
be some reasonable basis on which to estimate damages.” Wood v. Day, 859 F.2d 1490, 1493
(D.C. Cir. 1988) (internal quotation marks omitted). Damages may not be based on mere
speculation and guesswork. Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S.
555, 563 (1931). Here, the Court finds that Plaintiffs’ requested damages have a reasonable basis
in fact and law.
In her Declaration, Kisha Smith, a Contribution Compliance Manager for the pension
fund, described in detail the method used to determine the proper damages owed for
underpayments of supplemental contributions from September 2015 through April 2017. See
generally Declaration of Kisha Smith, ECF No. 18-7. In order to calculate the damages owed,
Plaintiffs multiplied the number of hours reported in Defendant’s remittance reports by the base
rate for contributions as required under the applicable contract and the rate of supplemental
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contributions as required by the pension fund’s rehabilitation plan. Id. at ¶ 31. Plaintiffs then
compared the amount due, which was based upon hours reported by Defendant, with the amount
Defendant actually paid. Id. at ¶ 32. If the reports revealed that Defendant underpaid its
supplemental contribution for a particular month, interest and liquidated damages were assessed.
Id. at ¶¶ 33-35. Interest was calculated at a rate of 10% per year on the underpaid contributions
and liquidated damages were calculated at a rate of 20% of the underpaid contributions as set out
by the pension fund’s Collection Policy. Id.; Collection Policy, Ex. 3, ECF No. 18-3, 5.1-2
(establishing interest rates and liquidated damages). Considering Ms. Smith’s Declaration, the
Court finds that Plaintiffs provided a reasonable methodology for calculating damages owed
between September 2015 and April 2017.
Similarly, in his Declaration, Andre Joseph, the pension fund’s Payroll Review Manager,
described a reasonable methodology for assessing unpaid contributions, interest, and liquidated
damages resulting from the 2012-2013 audit process. See generally Declaration of Andre Joseph,
ECF No. 18-8. Plaintiffs reviewed Defendant’s own remittance reports. Id. at ¶ 15. Plaintiffs then
reviewed certain payroll records and other documents to verify that Defendant did not exclude
any eligible employees and that Defendant accurately reported hours worked and salaries. Id. at ¶
16. Where the audit revealed that Defendant had underreported certain hours, the pension fund
assessed interest and liquidated damages for delinquent contributions. Id. at ¶ 19. Considering
Mr. Joseph’s Declaration, the Court finds that Plaintiffs provided a reasonable methodology for
calculating damages owed resulting from the 2012-2013 audit.
The reasonableness of Plaintiffs’ methodology is highlighted by the fact that Defendant
cites no evidence establishing that Plaintiffs’ method of calculating damages resulted in any
errors. Plaintiffs based their damages calculations on Defendant’s own reports and documents.
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Accordingly, Defendant possessed the necessary documentation to rebut Plaintiffs’ damages
calculation. But, instead of producing documents within its control showing that Plaintiffs’
damages calculations are incorrect, Defendant relies solely on the Declaration of its counsel,
David Jasinski, as “evidence” of error. In his Declaration, Mr. Jasinski states that “[t]o the extent
that Plaintiffs believe required contributions have not been made, the Pension Fund has
improperly included, as part of the contribution calculus, certain earnings that should be
excluded from the calculation and/or individuals who have not met the required threshold
criteria.” Declaration of David F. Jasinski, Esq., ECF No. 19-2, ¶ 37.
The Court does not consider this conclusory allegation contained in Defendant’s lawyer’s
Declaration sufficient “evidence” to overcome Plaintiffs’ motion for summary judgment. “An
affidavit or declaration used to support or oppose a motion must be made on personal
knowledge, set out facts that would be admissible in evidence, and show that the affiant or
declarant is competent to testify on the matters stated.” Fed. R. Civ. Pro. 56(c)(4). Mr. Jasinski’s
Declaration does not meet this standard. Mr. Jasinski is Defendant’s counsel and not a regular
employee of Defendant. He provides no facts establishing personal knowledge as to Defendant’s
regular method for making pension fund contributions. Moreover, with the exclusion of Ms.
Bazile which will be addressed below, Mr. Jasinski presents no facts to support his vague
allegation that the pension fund improperly included earnings and individuals that should have
been excluded from the contribution calculation. Because Mr. Jasinski’s Declaration does not
comport with Federal Rule of Civil Procedure 56, and because it contains only unsupported
allegations, the Court will not consider it as “evidence” of Plaintiffs’ incorrect calculation of
damages. See Serv. Emps. Int’l Union Nat’l Indus. Pension Fund v. Bristol Manor Healthcare
Ctr., 153 F. Supp. 3d 363, 374 (D.D.C. 2016) (“When damages under an ERISA multiemployer
17
pension plan are in dispute, an employer opposing summary judgment must likewise point to
specific facts in the record to demonstrate a genuine issue for trial.” (internal quotation marks
omitted)).
Despite access to the necessary documents, Defendant does not provide its own analysis
of damages or any specific contradictions of Plaintiffs’ damages calculations. Instead, Defendant
relies solely on its counsel’s Declaration and the conclusory allegations therein. “Under such
circumstances, defendant cannot avoid summary judgment simply by speculating that plaintiffs
may have erroneously included ineligible hours without offering any support for that contention.
Yet, that is precisely what [defendant] has done here. Accordingly, [defendant] has failed to
show that there is a genuine dispute as” to damages owed. Serv. Emps. Int’l Union Nat’l Indus.
Pension Fund v. Harborview Healthcare, Inc., 191 F. Supp. 3d 13, 19 (D.D.C. 2016) (addressing
the same argument made by Defendant in another case).
Second, Defendant contends that Plaintiffs provided inadequate proof for their measure
of the damages owed. Specifically, Defendant argues that “Plaintiffs failed to include in the
spreadsheets provided to the Court the hours or salaries reported by [Defendant] for several of
the months for which Plaintiffs allege underpayments.” Def.’s Opp’n, ECF No. 19, 11. But, the
Court finds that Plaintiffs provided adequate proof for their measure of damages owed.
Plaintiffs submitted uncontroverted evidence of the hours or salaries of union employees
and their effect on the supplemental contributions owed by Defendant between September 2015
and April 2017. Plaintiffs attached spreadsheets to Ms. Smith’s Declaration summarizing
Defendant’s remittance reports, records of contributions paid to the pension fund, and records of
contributions owed including interest and liquidated damages. Exhibit A to Ms. Smith’s
Declaration includes a spreadsheet showing unpaid contributions, interest, and liquidated
18
damages totaling $11,814.09 for dietary and housekeeping employees between September 15,
2015 and April 15, 2017. Declaration of Kisha Smith, ECF No. 18-7, Ex. A. Exhibit B shows the
same for CNAs between September 15, 2015 and April 15, 2017 with a total of $19,532.56 due.
Id. at Ex. B. And, Exhibit C shows the same for recreational employees between September 15,
2015 and April 15, 2017 with a total of $1,368.85 due. Id. at Ex. C. These summary spreadsheets
are admissible summaries of voluminous documents which may be used “to prove the content”
of the underlying documents. Fed. R. Evid. 1006 (allowing summaries or charts to prove the
content of voluminous records which “cannot be conveniently examined in court”); see
Harborview Healthcare, 191 F. Supp. 3d at 18 (allowing the use of spreadsheets to summarize
remittance reports and records of contributions). These spreadsheets are sufficient to provide the
Court with reasonable proof of the damages owed.
Similarly, Plaintiffs provided the court with uncontroverted evidence of the reported
wages and required wages for those employees subject to the 2012-2013 audit report. Ex. 6, ECF
No. 18-6. These reports show the wages which Defendant reported to the pension fund and the
wages the pension fund determined were required based on tax forms, payroll documents, and
other records. Based on this information, the spreadsheets show the variances between the
reported wages and the required wages to establish if Defendant underpaid for any pension fund
contributions. As above, the spreadsheets containing this data are admissible summaries of
voluminous documents which may be used “to prove the content” of the underlying documents.
Fed. R. Evid. 1006.
If Defendant has reason to think that Plaintiffs’ summary evidence is inaccurate, then the
burden falls on Defendant to rebut the summaries with affirmative evidence of its own. See Fed.
R. Civ. Pro. 56(c) (“A party asserting that a fact ... is genuinely disputed must support that
19
assertion by ... citing to particular parts of material in the record ... or ... showing that the
materials cited do not establish the absence ... of a genuine dispute, or that an adverse party
cannot produce admissible evidence to support the fact.”). But, Defendant failed to produce any
such affirmative evidence. Defendant did not provide a contrary estimate of damages owed, nor
did Defendant identify any specific errors in Plaintiffs’ spreadsheets (with the exception of Ms.
Bazile which will be discussed below). Without such evidence, Defendant has not met its burden
to point to specific facts in the record that reveal a genuine issue suitable for trial. See Fed. R.
Civ. P. 56(c)(1); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
The only specific complaint that Defendant makes is that Plaintiffs failed to include
spreadsheets for several months for which Plaintiffs allege underpayments. But, Defendant does
not alert the Court to which months it contends are missing from Plaintiffs’ spreadsheets.
The only omission the Court could identify occurs in the spreadsheet attached as Exhibit
B to Ms. Smith’s declaration concerning unpaid contributions for CNAs from September 2015 to
April 2017. Declaration of Kisha Smith, ECF No. 18-7, Ex. B. In that spreadsheet, certain figures
in the “Hours or Salary Reported” column do not contain numbers and instead contain “####.”
Id. But, this omission was merely a formatting error which occurred when Plaintiffs converted
the spreadsheet to a PDF for filing. See Declaration of Diana M. Bardes, ECF No. 20-1, ¶ 5.
And, Plaintiffs subsequently filed a complete version of the spreadsheet for the Court’s review.
Id. at Ex. A. Defendant provides no argument as to why this filing error caused it prejudice, and
the Court concludes that no prejudice occurred as Defendant was in possession of the complete
spreadsheet since January 5, 2018. Id. at ¶ 6.
Third, Defendant argues that there remain genuine disputes of material fact because
Plaintiffs’ 2012-2013 audit incorrectly identified Laura Bazile as a union employee subject to
20
contributions. Defendant concedes that from January 1, 2013 to January 30, 2013, Ms. Bazile
was a union recreational employee covered by the CBA. But, Defendant claims that Ms. Bazile
was promoted to a non-union recreational therapist position beginning January 31, 2013.
Declaration of David F. Jasinski, Esq., ECF No. 19-2, ¶¶ 18-19. And on October 24, 2013,
Defendant claims that Ms. Bazile was again promoted to another non-union position. Id. at ¶ 20.
Based on Ms. Bazile’s promotions to non-union positions, Defendant claims that Plaintiffs erred
in including Ms. Bazile as a union employee subject to contributions from March 2013 to
December 2013.
The only support that Defendant provides for this alleged error in Plaintiffs’ audit is the
Declaration of its counsel, Mr. Jasinski. See Def.’s Res. To Pls.’ Statement of Material Facts,
ECF No. 19-1, ¶¶ 86-91 (citing only to Mr. Jasinski’s Declaration). But, a Declaration used to
oppose a motion for summary judgment must be made on personal knowledge, set out facts that
would be admissible in evidence, and show that the declarant is competent to testify on the
matters stated. Fed. R. Civ. Pro. 56(c)(4). And, Mr. Jasinski’s Declaration provides no
foundation to support his allegation concerning Ms. Bazile. He does not state that he has
personal knowledge as to Ms. Bazile’s employment history nor does he provide any documents
establishing her employment positions at the relevant times. The lack of documentation is
especially concerning given that, as Ms. Bazile’s employer, Defendant would have easy access to
her employment records.
The Court also notes that Mr. Jasinski’s alleged “facts” concerning Ms. Bazile’s
employment history are confusing and unclear. Mr. Jasinski states that “Plaintiffs incorrectly
identified Ms. Bazile as a union employee for the months of March 2013 through December
2013.” Declaration of David F. Jasinski, Esq., ECF No. 19-2, ¶ 17. Mr. Jasinski explained that
21
such identification was incorrect because Ms. Bazile was promoted to a non-union position on
January 31, 2013. But, if Ms. Bazile was promoted to a non-union position in January 2013, it is
not clear why Defendant has not claimed that Plaintiffs erred by treating her as a union employee
in February 2013.
Moreover, Defendant and its counsel have been in possession of the audit findings
regarding Ms. Bazile since at least September 9, 2016, but failed until now to raise the issue of
Ms. Bazile being improperly identified as a union employee. See Declaration of Andre Joseph,
ECF No. 18-8, Ex. B. During Ms. Smith’s deposition on January 12, 2018, Mr. Jasinski asked
Ms. Smith why she thought that Defendant did not report Ms. Bazile’s work hours to the pension
fund for the months of March 2013 to December 2013. Declaration of Diana M. Bardes, ECF
No. 20-1, Ex. C, 16-25. Mr. Jasinski posited that Defendant did not report Ms. Bazile’s work
hours for those months because she did not work during those months. Id. at 25 (“Is it possible
that Ms. Bazile did not work in 2013 for the months of March through December?”). Based on
Mr. Jasinski’s theory that Defendant failed to report Ms. Bazile’s hours because she did not
work, Plaintiffs supplied the Court with evidence showing that Ms. Bazile did in fact work
during the months at issue. Declaration of Andre Joseph, ECF No. 18-8, Ex. E, Ex. F. It is only
at the summary judgment stage that Mr. Jasinski has for some reason, unsupported by personal
knowledge or documentation, changed his rationale for the failure to report Ms. Bazile’s hours.
Lacking a foundation of personal knowledge and without any documentation to support
his conclusory allegation, Mr. Jasinski states that Plaintiffs erred in identifying Ms. Bazile as a
union employee from March 2013 to December 2013. The Court concludes that such “evidence,”
unsupported by documentation or a foundation of personal knowledge, is insufficient to defeat
Plaintiffs’ motion for summary judgment. Londrigan v. Fed. Bureau of Investigation, 670 F.2d
22
1164, 1174 (D.C. Cir. 1981) (noting that the “requirement of personal knowledge by the affiant
is unequivocal, and cannot be circumvented” and that “[a]n affidavit based merely on
information and belief is unacceptable”); see also Barnette v. Ridge, No. 02-1897, 2004 WL
3257071, at *6 n.6 (D.D.C. Nov. 15, 2004) (explaining that “[t]he mere arguments of counsel ...
are not evidence” that may be used to defeat a motion for summary judgment).3
Having considered each of Defendant’s arguments, the Court concludes that Defendant
has produced no evidence demonstrating a genuine dispute of material fact as to the damages
owed. Accordingly, the Court proceeds to decide whether the undisputed facts establish that
Plaintiffs are entitled to judgment as a matter of law. See Bristol Manor Healthcare Ctr., 153 F.
Supp. 3d at 376.
Plaintiffs’ spreadsheets are the only evidence showing the total amount of unpaid
contributions, interest, and liquidated damages owed to Plaintiffs between September 2015 and
April 2017. See Declaration of Kisha Smith, ECF No. 18-7, Exs. A, B, and C. According to
Plaintiffs’ spreadsheets, for unpaid contributions, interest, and liquidated damages, Defendant
owes $11,814.09 for dietary and housekeeping workers, $19,532.56 for CNA workers, and
$1,368.85 for Recreational workers. Id. Based on these figures, the total damages for
Defendant’s outstanding contributions, interest, and liquidated damages is $32,715.50. Lacking
any contrary evidence from Defendant, the preponderance of the evidence supports awarding
Plaintiffs $32,715.50 for unpaid contributions, interest, and liquidated damages between
September 2015 and April 2017. CIGNA Corp. v. Amara, 563 U.S. 421, 444 (2011) (applying
3
Plaintiffs state that they have attempted to confirm Mr. Jasinski’s account of Ms. Bazile’s
employment history but have been unable to do so. Plaintiffs further state that “[s]hould
documentation come to light proving that Ms. Bazile was not a member of the bargaining unit
during this time, the Pension Funding would adjust the audit findings.” Pls.’ Reply, ECF No. 20,
14 n.3.
23
the “preponderance of the evidence” standard, which is “the default rule for civil cases,” to
ERISA cases).
Plaintiffs’ spreadsheets are also the only evidence showing the total amount of unpaid
contributions, interest, liquidated damages, and audit testing fees owed to Plaintiffs based on
Defendant’s audit for calendar years 2012-2013. Ex. 6, ECF No. 18-6. Based on these
spreadsheets and Mr. Andre’s Declaration and attached exhibits, Defendant owes $63.23 in
unpaid contributions, interest, and liquidated damages for its dietary and housekeeping
employees, and $1,604.93 in unpaid contributions, interest, liquidated damages, and audit testing
fees for its recreational employees. Id.; see also Declaration of Andre Joseph, ECF No. 18-8, ¶¶
21-27. Lacking any contrary evidence from Defendant, the preponderance of the evidence
supports awarding Plaintiffs $1,668.16 for unpaid contributions, interest, liquidated damages,
and audit testing fees based on Defendant’s 2012-2013 audit.
Combining the $32,725.50 in contributions, interest, and liquidated damages owed
between September 2015 and April 2017 and the $1,668.16 in contributions, interest, liquidated
damages, and audit testing fee owed for the 2012-2013 audit, Plaintiffs’ combined damages total
the requested $34,383.66. Accordingly, the Court GRANTS Plaintiffs’ damages request.
Plaintiffs are also entitled to an award of attorneys’ fees and costs. See Collection Policy,
ECF No. 18-3, 5.3-4; see also 29 U.S.C. § 1132(g)(2) (allowing attorneys’ fees and costs under
ERISA). Attorney's fees will be assessed “at a reasonable hourly rate (which rate shall be no less
than the hourly rate charged to the Fund for such services) for all time spent by legal counsel in
collection efforts.” Collection Policy, ECF No. 18-3, 5.3. Accordingly, Plaintiffs may move for
attorneys’ fees and costs. Additionally, insofar as additional interest may have accrued since the
24
filing of Plaintiffs’ motion, the Court grants Plaintiffs leave to request that additional accrued
interest in its briefing.
C. Injunctive Relief
In addition to monetary damages, Plaintiffs request injunctive relief requiring Defendant
to remit reports and contributions going forward in accordance with the collective bargaining
agreements, the pension fund’s documents, and federal law.
Section 502(g)(2)(E) of ERISA provides that a court may award “such other legal or
equitable relief as [it] deems appropriate.” 29 U.S.C. § 1132(g)(2). Injunctive relief is
appropriate when “the defendant has demonstrated no willingness to comply with either its
contractual or statutory obligations or to participate in the judicial process.” Carpenters Labor-
Mgmt. Pension Fund v. Freeman-Carder LLC, 498 F. Supp. 2d 237, 242 (D.D.C. 2007) (citation
omitted). Here, Plaintiffs have presented evidence that Defendant has ignored letters sent by the
pension fund asking Defendant to pay the required contributions and to make the required
reports. Declaration of Kisha Smith, ECF No. 18-7, ¶ 39. Additionally, the pension fund has
previously filed a lawsuit against Defendant to collect unpaid contributions. Id. at ¶¶ 40-41. As a
result of that lawsuit, Defendant was ordered to pay $59,599.76 in contributions, interest,
liquidated damages, and attorneys’ fees and costs. Id.; see generally Harborview Healthcare
Center, Inc., 191 F. Supp. 3d 13. Plaintiffs state that Defendant has not complied with the
judgment amount and that the fund’s attorneys are attempting to pursue collection. Declaration
of Kisha Smith, ECF No. 18-7, ¶ 42. Accordingly, the Court finds that injunctive relief is
appropriate based on Defendant’s demonstrated unwillingness to comply with its obligations to
the pension fund. See Freeman-Carder, 498 F. Supp. 2d at 242. Moreover, Plaintiffs’ requested
injunction serves only to “reiterate[] what is already the defendant’s contractual obligation[].”
25
Teamsters Local 639-Emp’rs Health Trust v. Boiler and Furnace Cleaners, Inc., 571 F. Supp. 2d
101, 108 (D.D.C. 2008). Accordingly, the Court finds that injunctive relief is appropriate.
Defendant contends that injunctive relief should be denied because Plaintiffs cannot show
irreparable harm as required in the analysis for granting injunctive relief under eBay Inc. v.
MercExhcange, LLC, 547 U.S. 388 (2006). 547 U.S. at 391. But, Defendant fails to cite any case
in this circuit in which the court engaged in the eBay analysis when granting injunctive relief
under Section 502(g)(2)(E) of ERISA. See, e.g., Boland v. Yoccabel Constr. Co., 293 F.R.D. 13,
20-21 (D.D.C. 2013) (granting injunctive relief under Section 502(g)(2)(E) without engaging in
eBay analysis); Int’l Painters & Allied Trades Indus. Pension Fund v. ZAK Architectural Metal
& Glass, LLC, 635 F. Supp. 2d 21, 26 (D.D.C. 2009) (same); Freeman-Carder, 498 F. Supp. 2d
at 242 (same). And, insofar as irreparable harm is required, the Court finds that Plaintiffs have
established irreparable harm as they are required to make benefit payments to plan participants
regardless of whether or not Defendant makes the required contributions. Additionally,
Defendant’s repeated unwillingness to make the required contributions risks harming Plaintiffs
by setting them on a repeated loop of litigation to obtain the required contributions.
For the foregoing reasons, the Court GRANTS Plaintiffs’ request for injunctive relief
requiring Defendant to remit reports and contributions going forward in accordance with the
collective bargaining agreements, the pension fund’s documents, and federal law.4
4
In addition to its ERISA claim, Plaintiffs also seek Defendant’s delinquent contributions under
Section 301 of the Labor Management Relations Act (“LMRA”). But, the vast bulk of Plaintiffs’
motion and all of Plaintiffs’ response focus on its ERISA claim. And, Plaintiffs’ arguments under
the LMRA merely summarize their ERISA arguments. As the relief granted under the LMRA
would be the same as that granted under ERISA, the Court need not address Plaintiffs’ LMRA
claim. See Serv. Emps. Int’l Union Nat’l Indus. Pension Fund v. Tnuzeg Holdings, LLC, No. 17-
1655, 2018 WL 3962925, *7 (D.D.C. Aug. 17, 2018) (declining to address the plaintiff’s LMRA
claim because no additional remedy was available beyond that ordered under ERISA).
26
IV. CONCLUSION
For the foregoing reasons, Plaintiffs’ Motion for Summary Judgment is GRANTED.
Defendant was required under the MPRA to make increased supplemental contributions and
failed to do so between September 2015 and April 2017. There is no genuine dispute of material
fact as to the amount of damages owed for this violation. Nor is there a genuine dispute of
material fact as to the amount of damages owed based on Defendant’s 2012-2013 audit. Finally,
the Court concludes that injunctive relief is appropriate as Defendant has demonstrated an
unwillingness to comply with the pension fund’s requirements and federal law. An appropriate
Order accompanies this Memorandum Opinion.
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
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