Foster v. Pall Aeropower Corp.
| Decision Date | 02 August 2000 |
| Docket Number | No. 8:99-cv-927-T-26A.,8:99-cv-927-T-26A. |
| Parties | James FOSTER, Plaintiff, v. PALL AEROPOWER CORPORATION, Defendant. |
| Court | U.S. District Court — Middle District of Florida |
John A. Shahan, Law Office of John A. Shahan, Tarpon Springs, FL, for Plaintiff.
Richard C. McCrea, Jr., Cynthia L. May, Zinober & McCrea, P.A., Tampa, FL, for Defendant.
Before the Court is Defendant's Motion for Summary Judgment (Dkt.11), Plaintiff's response (Dkt.24), and various affidavits, declarations, depositions and other discovery materials. After careful consideration of the arguments and the entire file, the Court is of the opinion that the motion should be granted.
Plaintiff James Foster, an employee of Defendant Pall Aeropower Corporation (Pall), brought this action pursuant to 42 U.S.C. § 1985(2) alleging he was injured by a conspiracy designed to obstruct justice in the federal courts. He claims injury to his person and property stemming from (1) his whistle-blowing activities related to safety violations resulting in a complaint being filed by a fellow employee with the Occupational Safety and Health Administration (OSHA), (2) his testifying at unemployment compensation hearings on behalf of fellow employees, and (3) his providing an affidavit in a federal lawsuit involving employment discrimination supporting the side of his fellow employee. He asserts he was subjected to a hostile work environment and unfair treatment in retaliation for his actions.
In particular, Pall moved Mr. Foster to a machine requiring work to be done on stainless steel, a hard metal,1 beginning in June 1997. Mr. Foster considered the transfer to a different machine unfair treatment because working on the machine was apt to cause more physical injuries and to involve more difficult production jobs.2 Errors were made in the number of hours worked by Mr. Foster as a result of problems with Mr. Foster's scan card. Even knowing this, Pall warned Mr. Foster twice in 1997 that "disciplinary action" would follow if he continued not to work at his scheduled time. In March 1998, he received a third and final written reprimand for not reporting to work on time.
Other retaliatory acts include never being permitted to "rework" a defective part, apparently a sought after job. He was criticized for leaving his work area untidy, leaving for break at unappointed times, and failing to complete paper work. He claims he was given difficult, rather than easy, tasks to perform as a form of punishment for having testified against and blown the whistle on Pall numerous times. On one occasion he claims that Pall prevented a subpoena from being served on him, which would have required him to provide testimony in an administrative or agency matter on behalf of a fellow employee.
On September 15, 1998, Mr. Foster signed an affidavit in support of the plaintiff and fellow employee, Mr. Gordon, in a federal lawsuit based on age discrimination. See Gordon v. Pall Aeropower Corp., 1998 WL 990441, 97-1749-CIV-T-25 B (M.D.Fla. Dec. 4, 1998). All but one of the employees of Pall who provided sworn statements in the instant action avers that no one at Pall knew that Mr. Foster was going to testify or submit an affidavit supporting Mr. Gordon. David Sakevich, a former employee of Pall, however, emphatically contests the truth of the affidavits submitted by Pall in this case. Mr. Sakevich avers that he knew from conversations with other employees of Pall that Mr. Foster was going to testify for Mr. Gordon in his federal lawsuit. According to Mr. Sakevich, it was common knowledge at Pall that Mr. Foster was going to testify for Mr. Gordon. Mr. Foster testified in his deposition that he never discussed his affidavit with anyone at Pall and that he does not know for a fact that anyone at his facility knew that he had provided an affidavit in support of Mr. Gordon.
Mr. Sakevich observed acts of harassment toward Mr. Foster such as Mr. Foster's supervisor "rifling" through Mr. Foster's tool box for personal papers kept supposedly regarding safety violations and other notations injurious to Pall. Mr. Sakevich was not permitted to talk to Mr. Foster, nor was any other employee. He also knew of Mr. Foster's supervisor telling him to think of his wife's cancer "as an adventure." There is no evidence to rebut that his supervisor made this comment.
Mr. Foster claims he was yelled at by a manager in the beginning of this year for parking in a parking space assigned to the president of the corporation. Overall, however, Mr. Foster admits that he has never been demoted or suspended and that he has received a pay increase after every review. He continues to work at Pall because he cannot "afford to lose employment due to medical bills from his wife's cancer and death." He suffers medical and emotional distress in the nature of hypertension and other medical ailments requiring medication for anxiety. He claims he has lost overtime pay because he has been denied overtime. He values his damages at a minimum of $50,000.00.
42 U.S.C. § 1985(2)
Case law on the subject of section 1985(2) conspiracies to obstruct justice is sparse.3 Of the six clauses contained in section 1985(2), this case involves the second clause, which has been referred to in the past as "clause B." See, e.g., Bradt v. Smith, 634 F.2d 796, 800-801 (5th Cir.), cert. denied, 454 U.S. 830, 102 S.Ct. 125, 70 L.Ed.2d 106 (1981). To grasp the meaning of the second, operative clause in section 1985(2), it is necessary to consider the first clause as well. The first two clauses of section 1985(2) provide as follows:
If two or more persons in any state or territory conspire [(A)] to deter by force, intimidation, or threat, any party or witness in any court of the United States from attending such court, or from testifying to any matter pending therein, freely, fully, and truthfully, or [(B)] to injure such party or witness in his person or property on account of his having so attended or testified, ....
The instant action is considered to be a section 1985(2) "retaliation" claim. See Brever v. Rockwell Int'l Corp., 40 F.3d 1119, 1129 (10th Cir.1994).4 To assert a claim for relief under the second clause of section 1985(2), a plaintiff must prove (1) a conspiracy, (2) retaliation spawned by the attendance or testimony in federal court, (3) an act in furtherance of the conspiracy, and (4) injury to the plaintiff.
Plaintiff correctly contends that he has standing as a witness, as opposed to a party, to bring this action. The Eleventh Circuit has permitted witnesses to pursue claims pursuant to the second clause of section 1985(2). See Morast v. Lance, 807 F.2d 926 (11th Cir.1987), overruled on other grounds by Haddle v. Garrison, 525 U.S. 121, 119 S.Ct. 489, 142 L.Ed.2d 502 (1998). None of the bases for affirming the dismissal of the complaint included the fact that the plaintiff was a witness rather than a party. From the clear reading of the second clause of section 1985(2), both parties and witnesses were made the subject of the intimidation and injury committed by conspirators.
As to the last clause in section 1985(3), which contains the damages provision for the entire section, there is no binding authority that limits recovery to parties as opposed to witnesses. The last clause of section 1985(3) provides as follows:
[I]n any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages, occasioned by such injury or deprivation, against any one or more of the conspirators.
(Emphasis added.) Plaintiff argues that the phrase "the party so injured" does not limit recovery to parties in the sense of a named party to a lawsuit. Rather, witnesses are permitted to recover damages under section 1985(2). This argument has been previously made to and accepted by at least one other court. See Brever v. Rockwell Int'l Corp., 40 F.3d 1119, 1125 n. 7 (10th Cir.1994). Absent any authority in the Eleventh Circuit to the contrary, this Court agrees with the reasoning of the Brever court and finds that witnesses have standing under the second clause of section 1985(2) to sue for damages.
Federal court requirement
Section 1985(2) does not afford protection against conspiracies to obstruct justice in administrative proceedings, even obstructions occurring in federal agencies such as the Office of the Comptroller of the Currency (OCC) and the Equal Employment Opportunity Commission (EEOC).5 Thus, Defendant correctly argues that only the alleged acts of retaliation relating to Mr. Foster's participation in federal court proceedings are actionable under section 1985(2). The only allegation in the complaint related to a federal proceeding is Mr. Foster's filing a counteraffidavit to Pall's motion for summary judgment in a federal court case titled Gordon v. Pall Aeropower Corp., 1998 WL 990441, No. 97-1749-CIV-T-25B (M.D.Fla. Dec. 4, 1998). Some analysis of the nature of the testimony or statement provided in the federal court proceeding may be beneficial in ascertaining whether it is plausible that the conspirators acted in retaliation for the witness giving the particular testimony.
Before addressing the Gordon affidavit, it is necessary to determine whether an affidavit constitutes "testimony" as that word is used in section 1985(2). This Court has not uncovered a case in this Circuit definitively passing on the issue of whether testimony by affidavit is sufficient to trigger the protection of the second clause of section 1985(2). In Carter v. Church, 791 F.Supp. 298 (M.D.Ga.1992), the court held that an...
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...testimony in federal court, (3) an act in furtherance of the conspiracy, and (4) injury to the plaintiff." Foster v. Pall Aeropower Corp., 111 F.Supp.2d 1320, 1322 (M.D.Fla. 2000). (1) Criminal The Magistrate Judge found that Ms. Aque's retaliation claim failed to state facts sufficient to ......