Firewood v. United States Dep't of Transp.
| Decision Date | 25 March 2011 |
| Docket Number | Case No. 09–C–0524. |
| Parties | BEST WOOD JUDGE FIREWOOD AND TREE SERVICE, Plaintiff,v.UNITED STATES DEPARTMENT OF TRANSPORTATION, United States Department of Transportation Departmental Office of Civil Rights, Joseph Austin, Defendants. |
| Court | U.S. District Court — Eastern District of Wisconsin |
OPINION TEXT STARTS HERE
Brent D. Nistler, Nistler Law Office SC, Brookfield, WI, for Plaintiff.
Susan M. Knepel, United States Department of Justice (ED–WI), Office of the U.S. Attorney, Milwaukee, WI, for Defendants.
DECISION AND ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (DOC. # 26), GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (DOC. # 32) AND DISMISSING CASE
Best Wood Judge Firewood and Tree Service (“Best Wood Judge”), a sole proprietorship of Thomas Holzrichter, filed this case against a federal agency, one of its departments, and the department's associate director, requesting declaratory and injunctive relief. Best Wood Judge seeks review of a determination that it is ineligible for a federally-funded Disadvantaged Business Enterprise program. Best Wood Judge's complaint asserts (1) a claim for reversal under the Administrative Procedure Act, 5 U.S.C. § 706; and (2) a violation of its right to equal protection.
Best Wood Judge has moved for summary judgment on count one. On the other hand, defendants have moved for summary judgment and dismissal of both counts. As discussed below, the defendants' motion will be granted, the plaintiff's motion will be denied and this case will be dismissed.
Summary judgment is proper if the depositions, documents or electronically stored information, affidavits or declarations, stipulations, admissions, interrogatory answers or other materials show that there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a), (c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party bears the initial burden of demonstrating it is entitled to summary judgment. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. Once this burden is met, the nonmoving party must designate specific facts to support or defend each element of its cause of action, establishing a genuine issue for trial. Id. at 322–24, 106 S.Ct. 2548. In analyzing whether a question of fact exists, the court construes the evidence in the light most favorable to the party opposing the motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
The mere existence of a factual dispute does not defeat a summary judgment motion; there must be a genuine issue of material fact for the case to survive. Id. at 247–48, 106 S.Ct. 2505. “Material” means that the factual dispute must be outcome-determinative under governing law. Contreras v. City of Chicago, 119 F.3d 1286, 1291 (7th Cir.1997). Failure to support an essential element of a claim renders all other facts immaterial. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. To establish that a question of fact is “genuine,” the nonmoving party must present specific and sufficient evidence that, if believed by a jury, would support a verdict in its favor. Fed.R.Civ.P. 56(e); Anderson, 477 U.S. at 249, 106 S.Ct. 2505.
Because the parties in this case have filed cross-motions for summary judgment, many facts are not contested. Nevertheless, both sides are required to show that no genuine issues of material fact exist, taking the facts in the light most favorable to the party opposing each motion. That both parties have moved for summary judgment, and contend that there is no genuine issue of fact, does not establish that a trial is unnecessary or empower the court to enter judgment as it sees fit. See 10A Charles Alan Wright et al., Federal Practice & Procedure § 2720 at 327–28 (3d ed. 1998). In other words, cross-motions for summary judgment do not constitute a waiver of trial. See Miller v. LeSea Broad., Inc., 87 F.3d 224, 230 (7th Cir.1996).
Thomas Holzrichter, a Caucasian male, is sole proprietor of Best Wood Judge, which was established on September 1, 1980. (Pl.'s Proposed Findings of Fact in Supp. of Pl.'s Mot. for Summ. J. (“PPFOF”) ¶ 2 1–3; Administrative Record (“AR”) at 110–13 2; Pl.'s Aff. ¶ 2.) Best Wood Judge's “primary business activities are land clearing for construction, tree trimming, and removals for residential, commercial, government, and firewood and mulch sales.” (PPFOF ¶ 5; Pl.'s Aff. ¶ 2.) Besides Holzrichter, Best Wood Judge employs two full-time tree trimmers, one part-time tree trimmer, one full-time and one part-time office management positions, one full-time mechanic, and ten part-time seasonal laborers. (Defs.' Combined Br. in Supp. of Mot. for Summ. J & Resp., § III (Defs.' Proposed Findings of Material Fact) (“DPFMF”) ¶ 9; AR at 119.)
Local 139 of the International Union of Operating Engineers (“IUOE”) represents heavy equipment operators and other employees throughout Wisconsin. (DPFMF ¶ 13; AR at 149–50.) Holzrichter is not a member of Local 139 and Best Wood Judge has not signed a contract with the IUOE or Local 139. (DPFMF ¶ 14; Nistler Aff., Ex. C at 29; see Compl. ¶¶ 2, 3.) Holzrichter 3 acts as a subcontractor, and Local 139, in its “Heavy and Highway Construction Agreement,” prohibits the use of non-union subcontractors by its union contractors. (PPFOF ¶¶ 14, 25; Nistler Aff. Ex. B, Ex. 1 at unnumbered 1; AR at 149–50.)
On January 22, 2007, Holzrichter submitted to the Wisconsin Unified Certification Program (“WisDOT” 4) an application by Best Wood Judge for a Disadvantaged Business Enterprise (“DBE”) certification. (PPFOF ¶ 4; Defs.' Resp. & Obj'ns to Pl.'s Proposed Findings of Material Facts ( ) ¶ 4; DPFMF ¶ 1; AR at 108, 110; Pl.'s Aff. ¶ 3.)
By affidavit dated January 31, 2007, Holzrichter described instances when his business was not retained by contractors for projects as a result of not having employees who were members of a labor union. He became aware of the alleged discrimination in 1988 and instances of discrimination against him increased thereafter; he began to document alleged instances of discrimination in 2004; and from October 2004 to January of 2007, contractors did not award “clearing and grubbing work” contracts to him because he was a non-union subcontractor. (DPFMF ¶ 3; AR at 155–57.) In 2006, Best Wood Judge or Holzrichter was the low bidder on projects for Payne and Dolan, RJ Huston, Musson Brothers, and Highway Landscaper, but because Best Wood Judge was not a union contractor or Holzrichter was not a member of a union, Best Wood Judge was not awarded the work. (PPFOF ¶ 9; Defs.' Resp. ¶ 9; AR at 149; Holzrichter Aff. ¶ 9.) Other contractors would not entertain a bid from Best Wood Judge because it was not a member of the union. (PPFOF ¶ 11 5; Pl.'s Aff. ¶ 9.) At times parking lot work for which Best Wood Judge had contracted was terminated because the hiring company was not allowed to subcontract to non-union firms.
Holzrichter's situation in losing WisDOT work has been “substantial and chronic.” (PPFOF ¶ 13.) Best Wood Judge's non-union status has made it ineligible to do 94% of potential southeastern Wisconsin WisDOT work. (PPFOF ¶ 15; Defs.' Resp. ¶ 15; AR at 136.) And the business manager of Local 139 has boasted that Local 139's members control over 90% of WisDOT work. (PPFOF ¶ 16; see Nistler Aff. Ex. B, Ex. 1 at 25.)
Holzrichter submitted letters to WisDOT describing why his personal religious belief system absolutely prohibits him from joining a union. (PPFOF ¶ 17; Pl.'s Aff. ¶¶ 5–6.) He does not morally or ethically agree with tactics and philosophies of a union that uses coercion, corruption and illegal activity, discrimination and threats, including a threat to him from the IUOE or Local 139 that he “won't be working on this job or any other job until you join the Union.” (PPFOF ¶ 18; AR at 146–47.)
WisDOT conducted an on-site review of Holzrichter's business on April 11, 2007, related to its DBE application. (DPFMF ¶ 4.) During the on-site review, Holzrichter told WisDOT that he was seeking DBE certification as a way to obtain more work for Best Wood Judge because its non-union status was a disadvantage. (DPFMF ¶ 5; AR at 117.) Holzrichter explained that he was seeking DBE status to level the playing field, counteracting contractors who discriminate against non-union subcontractors like him. (PPFOF ¶ 7; DPFMF ¶ 5; AR at 116–17.)
On or about April 12, 2007, Best Wood Judge provided WisDOT with a profit and loss statement as well as a balance sheet and loan information. (DPFMF ¶¶ 6, 7; AR at 118, 159–62.) By e-mail dated May 9, 2007, Holzrichter told WisDOT that a contractor told him it would not retain Best Wood Judge for a project because “the Union” harassed it about its plan to use a non-unionized company. Holzrichter asserted in the e-mail that non-union discrimination against his company for clearing and grubbing work was continuing and escalating because in addition to large projects, he was not receiving contracts for small projects. (DPFMF ¶ 12.6)
By letter dated May 14, 2007, the business manager of Local 139 advised Best Wood Judge that Local 139's master collective bargaining agreement required “that signatory contractors only subcontract construction work to companies who are signed to the applicable Local 139 collective bargaining agreement.” (AR at 149; PPFOF ¶ 25; Defs.' Resp. ¶ 25; DPFMF ¶ 14.) The letter stated that Local 139 intended to notify its signatory contractors that they may not subcontract construction work to Best Wood Judge. (PPFOF ¶ 26; DPFMF ¶ 14; AR at 149.) Moreover, the letter noted that because Best Wood Judge had not signed the collective bargaining agreement with Local 139, it was losing valuable business opportunities. (PPFOF ¶ 27; Defs.' Resp. ¶ 27; DPFMF...
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