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Building Trades United Pension Trust Fund v. Howard Grote & Sons, Inc.

United States District Court, W.D. Wisconsin

December 17, 2019

BUILDING TRADES UNITED PENSION TRUST FUND, SCOTT REDMAN, PAINTERS LOCAL 802 PENSION FUND, PAINTERS LOCAL 802 HEALTH FUND, PAINTERS LOCAL 802 APPRENTICESHIP FUND and JEFF MEHROFF, Plaintiffs,
v.
HOWARD GROTE & SONS, INC., Defendant.

          OPINION AND ORDER

          William M. Conley District Judge.

         In this civil lawsuit, various union funds and two of their trustees assert claims against defendant Howard Grote & Sons, Inc. (“HGS”) based on its alleged failure to make required fringe contributions to the funds in violation of the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq. Before the court is plaintiffs' motion for summary judgment. (Dkt. #14.)[1] For the reasons that follow, the court will grant the motion as to plaintiffs' claim that defendant failed to make contributions to plaintiff Local 802 Pension Fund for employee Jeremy Calow in November and December 2016. In all other respects, however, the court will deny the motion because plaintiffs have failed to show by admissible, undisputed evidence that its proof is so one-sided as to rule out the prospect of ruling in favor of defendant HGS as to their other claims.

         PRELIMINARY ISSUES

         The parties' summary judgment submissions raise two disputes that the court must address before turning to the parties' proposed findings and arguments on summary judgment.[2]

         A. Purported Payroll Records

         First, defendant objects to plaintiffs' reliance on documents described as “payroll records” on the basis that they are not admissible evidence. (Def.'s Resp. to Pls.' PFOFs (dkt. #23) ¶ 7.) There are two aspects to this argument. First, the documents plaintiffs attached as Exhibits 3, 4 and 5 to the declaration of plaintiffs' counsel Yingtao Ho were not payroll records for three different months as he declared. (Ho Decl. (dkt. #18) ¶ 4; id., Exs. 3-5 (dkt. ##18-3, 18-4, 18-5).) Instead, these documents are actually pages from the remittance reports, which were also submitted as exhibits to a declaration by an administrator for the Painters Local 802 Funds. (Prebil Decl. (dkt. #19).) In its response to plaintiffs' proposed findings of facts citing to these purported payroll records, defendant correctly pointed out, among other things, that the “cited evidence does not support this proposed finding of fact.” (See, e.g., Def.'s Resp. to Pls.' PFOFs (dkt. #23) ¶ 7.)

         A week after defendant's filing of its opposition to plaintiffs' motion, plaintiffs then filed three new exhibits to Attorney Ho's declaration without leave of court and without any explanation. (Dkt. ##25, 26, 28.) While the court may excuse the sloppiness of attaching the wrong exhibits to Attorney Ho's original declaration, there is no excuse for not explaining this mistake and seeking leave to file these untimely exhibits. Moreover, in their replies in support of their proposed findings of facts, plaintiffs attempt to fault defendant for failing to explain the “basis of its evidentiary objection, ” which was patently clear: plaintiffs cited to documents purporting to be payroll records, but the documents are actually pages from remittance reports.

         Even putting aside plaintiffs' failed and inexcusable sleight of hand with respect to the original exhibits, there is a separate problem with the admissibility of the late-filed exhibits ostensibly ushered in by the original declaration of Attorney Ho. In the reply in support of their proposed findings of facts, plaintiffs also argue that the substitute records are admissible over defendant's evidentiary objection because they were produced during discovery by defendant, and, therefore, “clearly constitute party opponent admissions.” (Pls.' Reply to Pls.' PFOFs (dkt. #29) ¶ 7.) Again, plaintiffs' counsel is playing fast and loose with the record on summary judgment while failing to cite to any Federal Rules of Evidence or caselaw in support of his position. Certainly, the purported payroll records may fall within the hearsay exception as a business record under Federal Rule of Evidence 806(3), but they still must be authenticated. Fed.R.Evid. 803(6)(D) (for a business record to be admissible “all these conditions [must be] shown by the testimony of the custodian or another qualified witness”). Contrary to plaintiffs' position, the Seventh Circuit has explained that the production by an opposing party does not satisfy this requirement. See Castro v. DeVry Univ., Inc., 786 F.3d 559, 578 (7th Cir. 2015) (“The mere act of producing a document in response to a discovery request based on the content of the document does not amount to an admission of the document's authenticity.”).

         Whatever evidentiary value these “substituted” records may ultimately have at trial, therefore, the court declines to consider them in support of plaintiffs' motion for summary judgment, both on evidentiary grounds and as a sanction.

         B. Wells Declaration

         The second evidentiary dispute concerns a declaration of defendant's comptroller Maureen Wells. Among plaintiffs' claims is the assertion that defendant failed to remit contributions to the Painters Local 802 Pension Fund for work completed by its employees in Milwaukee based on the higher (as compared to Madison) hourly rate for Milwaukee-area work. (Pls.' PFOFs (dkt. #15) ¶¶ 42-44.) At summary judgment, plaintiff proffered evidence that for two months (August 2014 and January 2015), defendant paid contributions at the rate of $9.40 per hour for work by its employees. (Id. at ¶ 42.) For purposes of deciding the parties' evidentiary dispute, the court will infer, though plaintiffs do not explain or put forward evidence explaining, that the employees in question for those two months were based in Milwaukee, and, thus, plaintiffs assumed that the work was also Milwaukee-based. Regardless of whether these inferences are justified, however, plaintiffs put forward no evidence that the employees completed work in Milwaukee during the two months at issue.

         Moreover, in response to plaintiffs' motion for summary judgment on this claim, defendant submitted Wells' declaration, in which she avers that Milwaukee-area employees were in fact working in Madison for the two months at issue, and, therefore, defendant actually overpaid by contributing at a rate of $9.40 per hour, less than the Milwaukee rate, but more than the Madison rate. (Wells Decl. (dkt. #22) ¶ 21.) In reply, plaintiffs then objected to Wells' statement on the basis that she lacks personal knowledge to attest to the work location of the employees in question. (Pls.' Resp. to Def.'s PFOFs (dkt. #29) ¶ 24; see also Pls.' Reply (dkt. #31) 8-9.)

         While the court is skeptical of plaintiffs' challenge -- Wells' position as comptroller would appear to give her access to business records detailing the location of defendant's employees' work, although in fairness she does not attach them to her declaration -- the court need not rule on this objection because plaintiffs failed to put forward any evidence that the employees at issue actually worked in Milwaukee for the hours at issue or otherwise show that the relevant provision of the Madison CBA applies to these employees. As a result, the court will have to sort out all of this at trial, where plaintiffs will have the burden to prove their claim, and defendant, through Wells or otherwise, can put forth evidence to rebut it.

         UNDISPUTED FACTS[3]

         A. Overview of the Parties

         For all times relevant to the complaint, defendant HGS was party to, and agreed to abide by, the terms of the then operative collective bargaining agreements with the Painters' Union. Specifically, HGS was a party to the 2013-2018 agreement between Painters District 7 and the Madison Area Finishing Contractors Association, Local 802 Jurisdiction (“Madison Area CBA”). As part of that agreement, HGS was obligated to remit certain payments to various Local 802 funds of the Painters' Union named in the complaint, which the court will refer to collectively as the “Painters Local 802 Funds.” In addition, as just described above, plaintiff Building Trades United Pension Trust Fund is a Milwaukee-based fund and asserts a separate claim based on defendant's alleged failure to make contributions to its fund for work done in Milwaukee during August 2014 and January 2015.

         B. 2104 Edgewater Contributions

         Plaintiffs principally seek contributions, liquidated damages and interest for work completed by defendant's employees in March 2014, April 2014, June 2014 and September 2014 in Madison, Wisconsin on a redevelopment project of a City landmark, the Edgewater Hotel. These claims rest on alleged discrepancies between monthly remittance reports defendant provided plaintiffs and defendant's own payroll records. For the reasons explained above, the court disregards plaintiffs' proposed findings regarding defendant's payroll records as unsupported for purposes of summary judgment. As such, there is no reason for the court to detail the remittance reports in isolation, other than to note plaintiffs' admissible and undisputed evidence of alleged underpayments:

1. For June 2014, HGS did not report any hours worked by employees Robert Grayburn, Alberto Noriega, Eric Rodenschmidt and Curtis Von Behren, but did list those employees in its July 2014 remittance report. (Pls.' PFOFs (dkt. #15) ¶¶ 6, 8.)
2. For April 2014, HGS's remittance report showed that Jeffrey Rolling, classified as a Painter, worked 177 hours, including 40 hours for the week of April 16. (Pls.' PFOFs (dkt. #15) ¶¶ 10-12.)
3. HGS submitted a remittance report for March 2014, detailing contributions for hours worked by apprentices. (Prebil Decl., Ex. 4 (dkt. #19-4).)[4]

         In addition to asserting claims that defendant failed to make certain payments, plaintiffs also allege that defendant delayed payment. For the month of September 2014, HGS did not make contributions to the Local 802 Health Fund until December 14, 2014, and it did ...


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