Thomas E Perez v. Scot Brain et al

Filing 196

CONSENT JUDGMENT CONSENT JUDGMENT ANDORDER WITH DEFENDANTSDAVID ALLEN, JAIME BARTON,FRANK CROUCH, MARCOSENRIQUEZ, PHIL SALERNO,MAC TARROSA, BILLY LUJAN,ENRICO PRIETO, SCOTT BERG,LARRY NODLAND, JESSEMENDEZ, FITZGERALDJACOBS, CEMENT MASONSSOUTHERN CALI FORNIAADMINISTRATIVECORPORATION, ROBERTNORLING, ZENITH AMERICANSOLUTIONS, BILL LEE, theCEMENT MASONS SO. CAL.HEALTH AND WELFARE FUNDTRUST, the CEMENT MASONSSO. CAL. PENSION TRUST, theELEVEN COUNTIES CEMENTMASONS VACATION SAVINGSPLAN TRUST, the CEMENT MASONS JOINTAPPRENTICESHIP TRUST, andthe CEMENT MASONS SO. CAL.INDIV. RETIREMENT ACCOUNTDEFINED CONTRIBUTIONTRUST by Judge John A. Kronstadt. IT IS HEREBY ORDERED, ADJUDGED, and DECREED that:1. Defendants DAVID ALLEN, JAIME BARTON, FRANK CROUCH,MARCO S ENRIQUEZ, PHIL SALERNO, MAC TARROSA, BILLY LUJAN,ENRICO PRIETO, SCOTT BERG, LARRY NODLAND, JESSE MENDEZ,FITZGERALD JACOBS, ZENITH AMERICAN SOLUTIONS, and BILL LEE shall,within thirty days from the entry of this Consent Judgment and Order by this Co urt, paythe sum of $630,000, less lawful deductions, to Cheryle Ann Robbins, Cory Rice andLouise Bansmer and judgment is hereby entered against them jointly and severally insuch amount. Payments shall be made as follows: Cheryle Ann Robbins shal l be paid $400,000 as lost wages, less regular lawful payroll deductions such as income tax withholdings and Social Security contributions; Cory Rice shall be paid $56,000 as lost wages, less regular lawful payroll deductions such as income tax withholdings and Social Security contributions;and Louise Bansmer shall be paid $174,00, $67,000 as lost wages and $107,000 as consequential damages in the form of lost Social Security benefits, less regular lawful payroll deductions such as income tax withholding and Social Security contributions. ( MD JS-6. Case Terminated ) See Consent Judgment for Further Specifics. (bp)

1
2
3
4

JS-6

5
6
7
8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10
11

THOMAS E. PEREZ,
Secretary of Labor,
United States Department of Labor,

12
13
14

v.
SCOTT BRAIN, et al.

Plaintiff,

Defendants.

15
16
17
18
19
20
21
22
23
24
25
26
27
28

CONSENT JUDGMENT & ORDER

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

Case No. CV 14-3911-JAK-AGRx

CONSENT JUDGMENT AND
ORDER WITH DEFENDANTS
DAVID ALLEN, JAIME BARTON,
FRANK CROUCH, MARCOS
ENRIQUEZ, PHIL SALERNO,
MAC TARROSA, BILLY LUJAN,
ENRICO PRIETO, SCOTT BERG,
LARRY NODLAND, JESSE
MENDEZ, FITZGERALD
JACOBS, CEMENT MASONS
SOUTHERN CALIFORNIA
ADMINISTRATIVE
CORPORATION, ROBERT
NORLING , ZENITH AMERICAN
SOLUTIONS, BILL LEE, the
CEMENT MASONS SO. CAL.
HEALTH AND WELFARE FUND
TRUST, the CEMENT MASONS
SO. CAL. PENSION TRUST, the
ELEVEN COUNTIES CEMENT
MASONS VACATION SAVINGS
PLAN TRUST, the CEMENT
MASONS JOINT
APPRENTICESHIP TRUST, and
the CEMENT MASONS SO. CAL.
INDIV. RETIREMENT ACCOUNT
DEFINED CONTRIBUTION
TRUST

Page 1 of 13

1
2

Plaintiff THOMAS E. PEREZ, Secretary of Labor, United States Department of

3

Labor (the “Secretary”), pursuant to his authority under Sections 502(a)(2) and (5) of the

4

Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C.

5

§§ 1132(a)(2) and (5), has filed a Complaint, First Amended Complaint and Second

6

Amended Complaint (collectively “Complaint”) against DAVID ALLEN, JAIME

7

BARTON, FRANK CROUCH, MARCOS ENRIQUEZ, PHIL SALERNO, MAC

8

TARROSA, BILLY LUJAN, ENRICO PRIETO, SCOTT BERG, LARRY NODLAND,

9

JESSE MENDEZ, FITZGERALD JACOBS, ZENITH AMERICAN SOLUTIONS,

10

BILL LEE, the CEMENT MASONS SO. CAL. HEALTH AND WELFARE FUND

11

TRUST, the CEMENT MASONS SO. CAL. PENSION TRUST, the ELEVEN

12

COUNTIES CEMENT MASONS VACATION SAVINGS PLAN TRUST, the

13

CEMENT MASONS JOINT APPRENTICESHIP TRUST, the CEMENT MASONS

14

SO. CAL. INDIV. RETIREMENT ACCOUNT DEFINED CONTRIBUTION TRUST1

15

(collectively “Settling Defendants”), CEMENT MASONS SOUTHERN CALIFORNIA

16

ADMINISTRATIVE CORPORATION and ROBERT NORLING, among others. The

17

Settling Defendants have answered the Complaint and have admitted to the jurisdiction

18

of this Court over them and the subject matter of this action. The Parties expressly

19

waive Findings of Fact and Conclusions of Law.
The Secretary and Settling Defendants (collectively “Parties”) have agreed to

20
21

resolve all matters in controversy in this action between them and said Parties do now

22

consent to entry of this Consent Judgment and Order by this Court in accordance

23

therewith. The Parties further agree that this Consent Judgment and Order shall fully

24
1

25
26
27
28

The CEMENT MASONS SO. CAL. HEALTH AND WELFARE FUND TRUST, THE CEMENT
MASONS SO. CAL. PENSION TRUST, THE ELEVEN COUNTIES CEMENT MASONS
VACATION SAVINGS PLAN TRUST, THE CEMENT MASONS JOINT APPRENTICESHIP
TRUST, AND THE CEMENT MASONS SO. CAL. INDIV. RETIREMENT ACCOUNT DEFINED
CONTRIBUTION TRUST (collectively referred to as the “Southern California Cement Masons Trust
Funds”) are named as Defendants pursuant to Rule 19(a) of the Federal Rules of Civil Procedure, solely
to ensure that complete relief can be granted.

CONSENT JUDGMENT & ORDER

Page 2 of 13

1

settle all claims of the Secretary asserted against them, and them only, in the Complaint

2

filed in this matter. Settling Defendants neither admit nor deny the allegations alleged in

3

the Complaint or contained herein. Upon consideration of the record herein, and as

4

agreed to by the Parties, the Court finds that it has jurisdiction to enter this Consent

5

Judgment and Order.

6

IT IS HEREBY ORDERED, ADJUDGED, and DECREED that:

7

1.

Defendants DAVID ALLEN, JAIME BARTON, FRANK CROUCH,

8

MARCOS ENRIQUEZ, PHIL SALERNO, MAC TARROSA, BILLY LUJAN,

9

ENRICO PRIETO, SCOTT BERG, LARRY NODLAND, JESSE MENDEZ,

10

FITZGERALD JACOBS, ZENITH AMERICAN SOLUTIONS, and BILL LEE shall,

11

within thirty days from the entry of this Consent Judgment and Order by this Court, pay

12

the sum of $630,000, less lawful deductions, to Cheryle Ann Robbins, Cory Rice and

13

Louise Bansmer and judgment is hereby entered against them jointly and severally in

14

such amount. Payments shall be made as follows:

15

a.

Cheryle Ann Robbins shall be paid $400,000 as lost wages, less regular

16

lawful payroll deductions such as income tax withholdings and Social Security

17

contributions;

18

b.

19
20

Cory Rice shall be paid $56,000 as lost wages, less regular lawful payroll

deductions such as income tax withholdings and Social Security contributions; and
c.

Louise Bansmer shall be paid $174,000, $67,000 as lost wages and

21

$107,000 as consequential damages in the form of lost Social Security benefits, less

22

regular lawful payroll deductions such as income tax withholdings and Social Security

23

contributions.

24

d.

Any actions taken by the Defendants to assure proper reporting of these

25

payments to local, state and federal taxing authorities and/or the California Employment

26

Development Department shall not be viewed by the Secretary as being retaliatory or in

27

violation of any legal duty.

28

CONSENT JUDGMENT & ORDER

Page 3 of 13

1

e.

Defendants SOUTHERN CALIFORNIA CEMENT MASONS TRUST

2

FUNDS and ZENITH AMERICAN SOLUTIONS shall ensure that both the employee

3

and the employer portion of payroll taxes or payments are paid and any Social Security

4

Administration forms necessary are filed to ensure that the backpay portion of the award

5

is allocated to the appropriate calendar periods in which Cheryle Ann Robbins, Cory

6

Rice and Louise Bansmer would have earned the compensation. See IRS Publication

7

957: Reporting Back Pay and Special Wage Payments to the Social Security

8

Administration.

9

f.

10

Proof of payments required under this paragraph must be submitted within

fifteen days of when such payments are made and shall be provided to:

11

Regional Director

12

U.S. Department of Labor

13

Employee Benefits Security Administration

14

1055 E. Colorado Blvd., Suite 200

15

Pasadena, CA 91106-2357

16
17

2.

In addition to the payment to Cheryle Ann Robbins required under

18

Paragraph 1(a), within sixty days from the entry of this Consent Judgment and Order by

19

this Court, Defendants, JAIME BARTON, MARCOS ENRIQUEZ, PHIL SALERNO,

20

MAC TARROSA, BILLY LUJAN, ENRICO PRIETO, SCOTT BERG, LARRY

21

NODLAND JESSE MENDEZ, and FITZGERALD JACOBS shall bring a Motion

22

before the Joint Board of the Southern California Cement Masons Trust Funds to accept

23

the recommendation of the Pension Committee to the Cement Masons So. Cal. Pension

24

Trust made on April 16, 2015 to credit Cheryle Ann Robbins’ pension account with

25

service credits (“Service Credits”) for the period May 1, 2012 through and including

26

June 30, 2016 as settlement of this lawsuit. The Motion shall read as follows:

27

“CEMENT MASONS SO. CAL. HEALTH AND WELFARE FUND TRUST,

28

CEMENT MASONS SO. CAL. PENSION TRUST, CEMENT MASONS JOINT

CONSENT JUDGMENT & ORDER

Page 4 of 13

1

APPRENTICESHIP TRUST and CEMENT MASONS SO. CAL. INDIV.

2

RETIREMENT ACCOUNT DEFINED CONTRIBUTION TRUST will each contribute

3

its share of $65,000 (in relative overhead percentages) to CEMENT MASONS SO.

4

CAL. PENSION TRUST to be used to grant Service Credits to Cheryle Ann Robbins of

5

four years and two months under the Pension Plan sponsored by CEMENT MASONS

6

SO. CAL. PENSION TRUST and CEMENT MASONS SO. CAL. PENSION TRUST

7

will grant her that credit.” The Secretary affirms that such a vote by the Joint Board to

8

award Cheryle Ann Robbins Service Credits as referenced in this paragraph shall not be

9

considered by the Secretary as a breach of fiduciary duty under ERISA by any voting

10

Trustee of the Southern California Cement Masons Trust Funds.

11

3.

In consideration of payments and credits required under Paragraphs 1 and 2,

12

the Secretary shall not seek further payments or monies from Defendants DAVID

13

ALLEN, JAIME BARTON, FRANK CROUCH, MARCOS ENRIQUEZ, PHIL

14

SALERNO, MAC TARROSA, BILLY LUJAN, ENRICO PRIETO, SCOTT BERG,

15

LARRY NODLAND, SCOTT BRAIN, JAIME BRICENO, FITZGERALD JACOBS,

16

JESSE MENDEZ, ZENITH AMERICAN SOLUTIONS, BILL LEE, and ROBERT

17

NORLING in this matter. The Secretary’s monetary claims against Defendants SCOTT

18

BRAIN and JAIME BRICENO shall be deemed satisfied while the rest of the

19

Secretary’s claims against these and other defendants not included in this Consent

20

Judgment and Order are wholly unaffected.

21

4.

All Settling Defendants except for ZENITH AMERICAN SOLUTIONS

22

and BILL LEE are permanently enjoined and restrained from violating the provisions of

23

Title I of ERISA, 29 U.S.C. §§ 1001-1191c.

24

5.

Defendant ZENITH AMERICAN SOLUTIONS and BILL LEE are

25

permanently enjoined and restrained from violation Section 510 of ERISA, 29 U.S.C. §

26

1140.

27
28

6.

Settling Defendants specifically recognize that employees, trustees,

administrators, union members, union staff and officers, participants and beneficiaries of

CONSENT JUDGMENT & ORDER

Page 5 of 13

1

the Cement Masons Trust Funds, and others have an absolute right to participate in a

2

Department of Labor investigation, report conduct to the Department of Labor that they

3

believe violates ERISA, 29 U.S.C. §§ 1001-1191c, and report conduct internally that

4

they believe violates ERISA, 29 U.S.C. §§ 1001-1191c, and Settling Defendants are

5

permanently enjoined and restrained from discriminating and/or retaliating against

6

anyone who exercises any of these absolute rights.

7

7.

Within sixty days following the entry of this Consent Judgment and Order

8

by this Court, Defendants DAVID ALLEN, JAIME BARTON, FRANK CROUCH,

9

MARCOS ENRIQUEZ, PHIL SALERNO, MAC TARROSA, BILLY LUJAN,

10

ENRICO PRIETO, SCOTT BERG, LARRY NODLAND, JESSE MENDEZ and

11

FITZGERALD JACOBS shall each complete eight hours of education and training on

12

the duties and responsibilities of fiduciaries and trustees to ERISA-covered plans,

13

including education and training on ERISA Section 510, 29 U.S.C. § 1140. Such

14

training shall be provided by the Secretary.

15

8.

Within fifteen days following the entry of this Consent Judgment and Order

16

by this Court, Defendants JAIME BARTON, MARCOS ENRIQUEZ, PHIL SALERNO,

17

MAC TARROSA, BILLY LUJAN, ENRICO PRIETO, SCOTT BERG, LARRY

18

NODLAND, JESSE MENDEZ, FITZGERALD JACOBS and ROBERT NORLING

19

shall bring a Motion before the Joint Board of Trustees to pass a resolution requesting

20

Scott Brain voluntarily resign from all trustee positions he holds. While Defendants

21

DAVID ALLEN and FRANK CROUCH are not currently Trustees on the Joint Board

22

of Trustees, they support the resolution.

23

9.

Defendants DAVID ALLEN, JAIME BARTON, FRANK CROUCH,

24

MARCOS ENRIQUEZ, PHIL SALERNO, MAC TARROSA, BILLY LUJAN,

25

ENRICO PRIETO, SCOTT BERG, LARRY NODLAND, JESSE MENDEZ,

26

FITZGERALD JACOBS and ROBERT NORLING make the following statement as

27

part of this Consent Judgment and Order: “Based on what we now know and understand

28

regarding the circumstances surrounding the vote to place Cheryle Robbins on paid

CONSENT JUDGMENT & ORDER

Page 6 of 13

1

administrative leave on November 18, 2011, it is apparent that such actions were taken

2

by some of the defendants because Cheryle Robbins cooperated with a Department of

3

Labor investigation into potential violations of the Employee Retirement Income

4

Security Act (“ERISA”) by Scott Brain or because she participated in an effort to

5

complain about conduct by Scott Brain that she believed was unlawful, in violation of

6

section 510 of ERISA and that such actions ultimately lead to Ms. Robbins not being

7

hired by Zenith when the Administrative Corporation dissolved and all employees were

8

terminated and all employees were hired by Zenith except Ms. Robbins.”

9

10.

Within sixty days following the entry of this Consent Judgment and Order

10

by this Court, all employees of Defendant ZENITH AMERICAN SOLUTIONS in

11

Arcadia, California, including Defendant BILL LEE shall each complete one to two

12

hours of education and training on ERISA Section 510, 29 U.S.C. § 1140. Such training

13

shall be provided by the Secretary.

14

11.

Within thirty days following the entry of this Consent Judgment and Order

15

by this Court, Defendant ZENITH AMERICAN SOLUTIONS shall provide all of its

16

employees located in California a notice of rights under ERISA Section 510, 29 U.S.C. §

17

1140. A copy of the notice is attached as Exhibit A.

18

12.

The Secretary seeks no remedy from Defendants CEMENT MASONS SO.

19

CAL. HEALTH AND WELFARE FUND TRUST, the CEMENT MASONS SO. CAL.

20

PENSION TRUST, the ELEVEN COUNTIES CEMENT MASONS VACATION

21

SAVINGS PLAN TRUST, the CEMENT MASONS JOINT APPRENTICESHIP

22

TRUST, or the CEMENT MASONS SO. CAL. INDIV. RETIREMENT ACCOUNT

23

DEFINED CONTRIBUTION TRUST and such Defendants shall not be required to

24

further participate in this litigation except if ordered by the Court as deemed necessary to

25

ensure that complete relief in this matter can be granted. See Rule 19(a) of the Federal

26

Rules of Civil Procedure.

27
28

13.

Within 15 days following the entry of this Consent Judgment and Order,

Defendant ROBERT NORLING shall bring a Motion before the Joint Board of the

CONSENT JUDGMENT & ORDER

Page 7 of 13

1

Southern California Cement Masons Trust Funds calling for the adoption of an

2

investigation procedure previously agreed on by the Secretary and Defendant ROBERT

3

NORLING. Defendants JAIME BARTON, MARCOS ENRIQUEZ, PHIL SALERNO,

4

MAC TARROSA, BILLY LUJAN, ENRICO PRIETO, SCOTT BERG, LARRY

5

NODLAND, JESSE MENDEZ and FITZGERALD JACOBS shall support the Motion.

6

14.

In consideration of the relief provided under this Consent Judgment and

7

Order, and specifically Paragraph 13, and pursuant to Federal Rule of Civil Procedure

8

41(a)(2), the Secretary, the Settling Defendants and Defendant CEMENT MASONS

9

SOUTHERN CALIFORNIA ADMINISTRATIVE CORPORATION request this Court

10
11

dismiss Defendant ROBERT NORLING from this action with prejudice.
15.

In consideration of the relief provided under this Consent Judgment and

12

Order and the fact that Defendant CEMENT MASONS SOUTHERN CALIFORNIA

13

ADMINISTRATIVE CORPORATION is no longer an ongoing concern, pursuant to

14

Federal Rule of Civil Procedure 41(a)(2), the Secretary, the Settling Defendants and

15

Defendant ROBERT NORLING request this Court dismiss Defendant CEMENT

16

MASONS SOUTHERN CALIFORNIA ADMINISTRATIVE CORPORATION from

17

this action.

18

16.

Settling Defendants, Defendants CEMENT MASONS SOUTHERN

19

CALIFORNIA ADMINISTRATIVE CORPORATION and ROBERT NORLING each

20

expressly waive any and all claims of any nature which they may have against the

21

Secretary, the United States Department of Labor, or any of its officers, agents,

22

attorneys, employees or representatives, arising out of, or in connection with, the

23

allegations contained in the Complaint in this action, any other proceedings or

24

investigation incident thereto, or based on the Equal Access to Justice Act, as amended.

25

17.

The Parties, Defendants CEMENT MASONS SOUTHERN CALIFORNIA

26

ADMINISTRATIVE CORPORATION and ROBERT NORLING shall each bear their

27

own costs, expenses, and attorney’s fees incurred to date in connection with any stage of

28

CONSENT JUDGMENT & ORDER

Page 8 of 13

1

this proceeding, including but not limited to attorney’s fees which may be available

2

under the Equal Access to Justice Act, as amended.

3

18.

Nothing in this Consent Judgment and Order is binding on any

4

governmental agency other than the United States Department of Labor, Employee

5

Benefits Security Administration.

6

19.

The parties understand and agree that this Consent Judgment does not

7

include a finding of liability on the part of the Settling Defendants and/or Norling and

8

for that reason cannot be used as means to establish liability in any other proceeding.

9

20.

This Court retains jurisdiction over the Settling Defendants and over this

10

action for purposes of enforcing compliance with the terms of this Consent Judgment

11

and Order.

12

21.

By signing their names to this Consent Judgment and Order, the Parties,

13

Defendants CEMENT MASONS SOUTHERN CALIFORNIA ADMINISTRATIVE

14

CORPORATION and ROBERT NORLING each represent that they are informed and

15

understand the effect and purpose of this Consent Judgment and Order.

16

22.

Any person signing this Consent Judgment and Order on behalf of a party

17

expressly acknowledges and represents that he or she has the authority to sign for, and

18

legally bind, that party.

19

23.

This Consent Judgment and Order may be executed in counterparts, each of

20

which shall be deemed to be an original, but all of which, taken together, shall constitute

21

one and the same instrument.

22

The Court directs the entry of this Consent Judgment and Order as a final order.

23

IT IS SO ORDERED.

24
25

Dated: August 24, 2015

26

__________________________________
United States District Judge

27
28

CONSENT JUDGMENT & ORDER

Page 9 of 13

EXHIBIT A

NOTICE OF
WHISTLEBLOWER RIGHTS
As an employee of Zenith American Solutions, you play an important role in 
administering employee benefit plans.  These plans are governed by the 
federal Employee Retirement Income Security Act, frequently called ERISA. 
From time to time, the federal government conducts investigations to 
determine whether benefit plans are complying with ERISA’s provisions.  
You should know that you have an absolute right to provide information to 
the government in connection with these investigations.  ERISA prohibits 
employers, including Zenith, or anyone else from taking action against you 
because you have cooperated with an investigation. 
You also have the right to report unlawful conduct that you believe 
violates ERISA.  One option you have is to report the conduct to the federal 
government.  Alternatively, you may bring your concerns to the attention of 
a Zenith manager, Human Resources or the Legal Department.  You may 
also anonymously contact the ReportIt! Hotline, which is administered by an 
independent party.  Consistent with Zenith’s policy on non‐retaliation for 
good‐faith reporting of complaints, ERISA prohibits employers, including 
Zenith, or anyone else from taking action against you because you have 
reported unlawful conduct. 
If you believe that you have faced negative consequences for cooperating 
with an ERISA investigation or for reporting conduct that you believe 
violates ERISA, or if you want to report other unlawful conduct that you 
believe violates ERISA, you may file a complaint with the Department of 
Labor online at www.askebsa.dol.gov/WebIntake/Home.aspx or by calling 
(866) 444‐3272.  You may also report any concerns to the Report It! Hotline 
at (877) 778‐5463 or online at www.reportit.net (Username: HealthPlan 
Password: ReportIt).