Dushaw v. Roadway Exp., Inc.

• Decision Date: 18 September 1992
• Docket Number: No. C87-3279.,C87-3279.
• Citation: 816 F. Supp. 1229
• Parties: Robert DUSHAW, Plaintiff, v. ROADWAY EXPRESS, INC., et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

816 F. Supp. 1229

Robert DUSHAW, Plaintiff, v. ROADWAY EXPRESS, INC., et al., Defendants.

No. C87-3279.

United States District Court, N.D. Ohio, E.D.

September 18, 1992.

COPYRIGHT MATERIAL OMITTED

Theodore E. Meckler, Meckler & Meckler, Cleveland, OH, for plaintiff.

Barbara J. Leukart, Joseph Adam Piacquad, Jones, Day, Reavis & Pogue, Cleveland, OH, Edward C. Kaminski, Buckingham, Doolittle & Burroughs, Akron, OH, for defendant Roadway Express, Inc.

William O. Puncer, Sorrell Logothetis, Logothetis & Pence, Dayton, OH, for defendant Local 407, Intern. Broth. of Teamsters, Truck Drivers Union.

MEMORANDUM AND ORDER

ANN ALDRICH, District Judge.

On January 3, 1992, this Court issued its Memorandum and Order following the bench trial in this case. By agreement of the parties, the bench trial addressed only the issue of liability; it did not address the issue of damages. In its January 3, 1992 Memorandum and Order, the Court found that Robert Dushaw prevailed on his claim against Roadway Express, Inc. ("Roadway") for wrongful discharge, and also prevailed on his claim against Local 407 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America ("the Union") for failure to provide adequate representation.

Because a relatively long period of time passed between the end of the bench trial and the issuance of the Court's findings of fact and conclusions of law, the Court asked the parties to submit briefs on the issue of the appropriate time to terminate defendants' back pay liability. On April 9, 1992, the Court issued a Memorandum and Order finding that the defendants' liability for back pay would terminate only when the Court entered its final order regarding damages. The Court then directed the parties to submit final briefs as to the amount of damages, and the Court also asked the parties to address certain other damages-related issues, including: 1) whether Dushaw's back pay award should be reduced or terminated because of his disability, failure to mitigate, retirement, ineligibility for reinstatement, willful concealment of earnings, or for other reasons; 2) whether Dushaw should be reinstated; 3) whether an award of attorney's fees was appropriate; and 4) whether back pay damages should terminate with the last collective bargaining agreement under which Dushaw was employed.

The parties supplied briefs on these and other issues. The Court now finds that Dushaw is entitled to summary judgment on the issue of damages, as follows: 1) Dushaw's back pay damages should not terminate with the last collective bargaining agreement under which Dushaw was employed; 2) Dushaw did properly mitigate his damages; 3) reinstatement is not appropriate in this case; 4) the defendants are jointly liable to Dushaw for compensatory damages in the amount of $107,774.19, including prejudgment interest, with the Union liable for 35% of those damages and Roadway liable for 65% of those damages; 5) defendants are additionally jointly liable to Dushaw for compensatory damages in relation to Dushaw's lost pension benefits, and are ordered to take all steps necessary to make certain that Dushaw will receive credit according to his old pension plan for his years of lost service; 6) Roadway is additionally solely liable to Dushaw for punitive damages in the amount of $100,000; and 7) the defendants are jointly liable to Dushaw for costs and attorneys fees in the amount of $165,450.22, with the Union liable for 35% of this amount and Roadway liable for 65% of this amount. The Court's rulings are explained seriatim, below.

I. LAW OF SUMMARY JUDGMENT

Federal Rule of Civil Procedure 56(c) governs summary judgment motions and provides:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law ...

The nature of materials properly presented in a summary judgment pleading is set forth in Federal Rule of Civil Procedure 56(e):

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein ... The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denial of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.

However, the movant is not required to file affidavits or other similar materials negating a claim on which its opponent bears the burden of proof, so long as the movant relies upon the absence of the essential element in the pleadings, depositions, answers to interrogatories, and admissions on file. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

In reviewing summary judgment motions, this Court must view the evidence in the light most favorable to the non-moving party to determine whether a genuine issue of material fact exists. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); White v. Turfway Park Racing Assn., Inc., 909 F.2d 941, 943-44 (6th Cir. 1990). A fact is "material" only if its resolution will affect the outcome of the lawsuit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Determination of whether a factual issue is "genuine" requires consideration of the applicable evidentiary standards. Thus, in most civil cases the Court must decide "whether reasonable jurors could find by a preponderance of the evidence that the non-moving party is entitled to a verdict." Id. at 252, 106 S.Ct. at 2512.

II. TERMINATION OF THE COLLECTIVE BARGAINING AGREEMENT

The defendants argue that, in calculating Dushaw's damages, the Court should limit accrued damages to the period that the collective bargaining agreement that was in existence at the time of Dushaw's discharge was effective. The defendants rely on two cases to support this position: Int'l Bhd. of Electrical Workers, Local 12, AFL-CIO v. A-1 Electric Service, Inc., 535 F.2d 1 (10th Cir.1976), cert. denied, 429 U.S. 832, 97 S.Ct. 94, 50 L.Ed.2d 96 (1976); and Colon Velez v. Puerto Rico Marine Mgt., Inc., 693 F.Supp. 1335 (D.P.R.1988). However, the Court finds that these cases are not persuasive and that the defendants' argument is unconvincing.

This Court has already found A-1 Electric Service to be inapposite. Dushaw v. Roadway Express, 816 F.Supp. 1226 (N.D. Ohio 1992). In A-1 Electric Service, an employer breached a collective bargaining agreement when it failed to make contributions to various employee benefit funds. In response, the union withdrew its member-workers, brought suit against the employer for breach of contract, and won. The district court awarded the union damages, but limited damages to those that had accrued during the effective period of the collective bargaining agreement that the employer had breached.

In upholding the district court, the A-1 Electric Service court specifically noted that the collective bargaining agreement under which the union members were originally being paid was not, and was never intended to be, renewed. A-1 Electric Service, 535 F.2d at 4. In the present case, however, Roadway and the Union continue their relationship to this day under a collective bargaining agreement that is virtually identical to the one in force at the time of Dushaw's discharge. A-1 Electric Service is easily distinguishable from the instant case on its facts. A-1 Electric Service does not support the defendants' argument that Dushaw may only recover damages for the period beginning with his discharge and ending with the expiration of the collective bargaining agreement that was in force at the time he was discharged.

Nor does the Court find Colon Velez persuasive. In Colon Velez, an employer discharged twenty union-member security guards and replaced them with non-union guards. The original twenty guards had been a small sub-group within the larger bargaining unit protected by the collective bargaining agreement. The twenty guards brought a § 301 hybrid suit against the employer and their union, just as Dushaw has done in this case. The Colon Velez court ruled in favor of the guards on a motion for summary judgment. In deciding damages, however, the Colon Velez court found that the guards were only entitled to the benefits that had accrued under the collective bargaining agreement in force at the time of the guards' discharge. The Colon Velez court found that the guards could not collect damages for any wages or benefits that they might have earned under later-formed collective bargaining agreements.

In Colon Velez, however, it was clear at the time of the guards' discharge that the employer had no intention of including the guards in the bargaining unit in any subsequent contract. That is not the case here, as Roadway continues to employ many of the drivers whom it employed when Dushaw was discharged. Furthermore, the Colon Velez court came to its decision regarding the amount of the guards' damages "without authority or reasoning." Aguinaga v. United Food and Commercial Workers Int'l Union, AFL-CIO/CLC, 720 F.Supp. 862, 872 (D.Kan. 1989). Indeed, the result in Colon Velez seems contrary to the governing "make whole" principle enunciated in Bowen v. United States Postal Service, 459 U.S. 212, 222, 103 S.Ct. 588, 595, 74 L.Ed.2d...