Trustees of the NECA/Local 145 IBEW Pension Plan, as Collection Agent for all Fringe Benefits v. Mausser

Filing 90

ORDER entered by Chief Judge Sara Darrow on September 22, 2023. Plaintiff is awarded $38,785.85 in unpaid contributions; $8,609.92 in interest on the unpaid contributions; $7,757.17 in liquidated damages; and $1,265.00 in audit an d court costs. Plaintiff is directed to submit additional briefing on why the amount of attorney's fees it requests is reasonable by October 6, 2023. Defendant may file a response within two weeks after service of Plaintiff's briefing. (AAK)

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
ROCK ISLAND DIVISION
TRUSTEES OF THE N.E.C.A./LOCAL 145
I.B.E.W. PENSION PLAN, AS
COLLECTION AGENT FOR ALL FRINGE
BENEFITS,
Plaintiff,
v.
LINDA K. MAUSSER, individually and
d/b/a QCA ELECTRIC,
Defendant.

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Case No. 4:18-cv-04045-SLD-JEH

ORDER
This is an action brought pursuant to the Employee Retirement Income Security Act of
1974 (“ERISA”), 29 U.S.C. §§ 1001–1461. Plaintiff Trustees of the N.E.C.A./Local 145
I.B.E.W. Pension Plan, as Collection Agent for All Fringe Benefits, sued Defendant Linda K.
Mausser, individually and d/b/a QCA Electric, for unpaid contributions allegedly due to it
pursuant to collective bargaining agreements (“CBAs”) and an Agreement and Declarations of
Trust (“Trust Agreement”). On December 9, 2020, the Court granted in part Plaintiff’s motion
for partial summary judgment, finding that Defendant was obligated under these agreements to
pay contributions between January 2015 and the present and ordering Defendant to comply with
an audit. Dec. 9, 2020 Order 9, ECF No. 37. Plaintiff hired Calibre CPA Group, PLLC
(“Calibre Group”) to conduct the audit, see Bench Trial Tr. 24:3–5, ECF No. 82; Calibre
Group’s employee, Tim Kalnes, actually performed the audit, see id. at 33:17–18; 35:14–36:2.
A bench trial followed on November 23, 2022 to resolve whether and in what amount
Defendant was delinquent in her contributions. See Nov. 23, 2022 Min. Entry. Both parties
submitted proposed findings of fact and conclusions of law. See Pl.’s Proposed Findings of Fact
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& Concl. of Law, ECF No. 74; Def.’s Proposed Findings of Fact and Conclusions of Law, ECF
No. 80. On February 6, 2023, the Court entered its findings of fact and conclusions of law
pursuant to Federal Rule of Civil Procedure 52(a). Feb. 6, 2023 Order, ECF No. 84. It found
that Defendant was liable to Plaintiff for unpaid contributions, interest on the unpaid
contributions, liquidated damages, costs, and attorney’s fees. Id. at 18. It determined that
Defendant had failed to keep records sufficient to permit Plaintiff to ensure that she made all
required contributions, as mandated by ERISA. Id. at 8–10. It further concluded that, because of
this failure, it was reasonable for Calibre Group to use Defendant’s Schedule C tax forms to
generate an estimate of the hours worked by Defendant’s sole employee Chuck Mausser1 in
order to approximate the amount of unpaid contributions. See id. at 5, 13.
However, it found that Calibre Group’s actual calculations were not a just and reasonable
approximation of the unpaid contributions. Id. at 14–15. Kalnes estimated the hours Chuck
worked by dividing the gross receipts shown on the Schedule C forms by the journeyman wage
rate without accounting for the inclusion of materials costs in the gross receipts. Id. The Court
determined that assuming the gross receipts consisted entirely of labor costs “would result in an
unjust windfall for Plaintiff.” Id. at 14. It thus directed Plaintiff to provide an updated audit
report in which the cost of materials was subtracted from the gross receipts for each year prior to
any further steps in the calculation. Id. at 17. It stayed judgment to allow for this recalculation,
as well as for a recalculation of the amount of interest and liquidated damages and further
briefing on Plaintiff’s request for attorney’s fees. Id. at 17–18.
On February 27, 2023, Plaintiff provided the requested updated audit and supplemental
briefing. Pl.’s Suppl. Br., ECF No. 85. Defendant responded on March 13, 2023. Def.’s Resp.

Charles “Chuck” Mausser is Defendant’s spouse. See Bench Trial Tr. 88:23–24. Because he shares a last name
with Defendant, the Court will refer to him as “Chuck.”
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Suppl. Br., ECF No. 86. Pursuant to the Court’s directive, see Mar. 31, 2023 Text Order,
Plaintiff filed a reply on April 10, 2023. Pl.’s Reply Suppl. Br., ECF No. 88.2 Having
considered the parties’ supplemental briefing and the evidence submitted, the Court makes the
following supplemental findings of fact and conclusions of law pursuant to Federal Rule of Civil
Procedure 52(a).
SUPPLEMENTAL FINDINGS OF FACT3
Plaintiff directed Calibre Group to recalculate the amount of unpaid contributions
pursuant to the Court’s February 6, 2023 Order. Pl.’s Suppl. Br. 1. Kalnes calculated the
estimated hours Chuck worked each month in the relevant time period by looking to the
Schedule C form for each year, subtracting the cost of materials from the gross receipts, dividing
that amount evenly over the twelve-month calendar year, then dividing each month’s amount by
the applicable journeyman wage rate. See Revision Notes, Pl.’s Suppl. Br. Ex. A at 1, ECF No.
85-1 at 1. He then accounted for the hours Defendant did report and pay for. See Schedule of
Discrepancies, Pl.’s Suppl. Br. Ex. A at 19–20, ECF No. 85-1 at 19–20; Pl.’s Reply Suppl. Br. 2
(“As . . . the recalculated audit shows, . . . Defendant does properly receive credit for the hours
already reported and actually paid.”). Next, he used the estimation of unreported hours to
calculate the benefits due. See Revision Notes. The final calculations are contained in the
updated audit report provided by Plaintiff (the “Updated Calibre Report”). See Updated Calibre

On April 18, 2023, Defendant filed a surreply, Def.’s Surreply Suppl. Br., ECF No. 89, without seeking or
receiving permission from the Court to do so. The Court thus STRIKES Defendant’s surreply as improperly filed.
3
The findings of fact are made in compliance with Federal Rule of Civil Procedure 52(a). To the extent that any
finding of fact is deemed to be a conclusion of law, it is incorporated as such, and to the extent that any conclusion
of law is deemed to be a finding of fact, it is incorporated as such.
2

The Court’s initial findings of fact can be found in its February 6, 2023 Order. See Feb. 6, 2023 Order 2–6. The
Court presumes familiarity with the initial findings.

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Report, Pl.’s Suppl. Br. Ex. A at 4–18, ECF No. 85-1 at 4–18. According to the Updated Calibre
Report, Defendant owes $38,785.85 in unpaid contributions. Id. at 3.
SUPPLEMENTAL CONCLUSIONS OF LAW4
This is an action pursuant to Section 502(a)(3) of ERISA, 29 U.S.C. § 1132(a)(3).
Section 515 of ERISA provides that “[e]very employer who is obligated to make contributions to
a multiemployer plan under . . . the terms of a collectively bargained agreement shall, to the
extent not inconsistent with law, make such contributions in accordance with the terms and
conditions of . . . such agreement.” 29 U.S.C. § 1145. A fiduciary may bring a civil action to
enforce Section 515, id. § 1132(a)(3), and, in such an action, may recover the unpaid
contributions and interest thereon; “an amount equal to the greater of interest on the unpaid
contributions, or liquidated damages provided for under the plan in an amount not in excess of
20 percent . . . of the [unpaid contributions]”; and reasonable attorney’s fees and costs, id.
§ 1132(g)(2). In its complaint, Plaintiff seeks an award of any delinquent pension fund
contributions, interest on the unpaid contributions, liquidated damages, and audit and attorney’s
fees. Compl. 5, ECF No. 1.
The Court previously found that Defendant agreed to be bound by the terms of the thencurrent CBA (titled “Inside Agreement”) in place between it and the N.E.C.A./Local 145
I.B.E.W. Union, as well as by the terms and provisions of the Trust Agreement. Dec. 9, 2020
Order 4–5; see June 3, 2013–May 31, 2016 Inside Agreement (“Inside Agreement I”), Pl.’s Trial
Ex. 2; May 30, 2016–May 31, 2019 Inside Agreement (“Inside Agreement II”), Pl.’s Trial Ex. 3;
Trust Agreement, Pl.’s Trial Ex. 4 at 1–19. The Inside Agreement establishes that delinquent
contributions “shall be assessed liquidated damages amounting to . . . []$50.00[] per day for each

The Court’s initial conclusions of law can be found in its February 6, 2023 Order. See Feb. 6, 2023 Order 6–18.
The Court presumes familiarity with the initial conclusions.
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and every working day the . . . contributions are delinquent.” Inside Agreement I § 2.26(B).5 It
further provides that when legal counsel must be sought to obtain delinquent contributions, “the
[e]mployer shall be liable, in addition to all scheduled contributions, for all attorneys’ fees and
all reasonable costs incurred in the collection process including but not limited to filing fees,
sheriff’s costs, audit costs, interest and other expenses incurred.” Id.
In the supplemental briefing ordered by the Court, Plaintiff seeks the following relief: 1)
unpaid contributions in the amount of $38,785.85; 2) prejudgment interest in the amount of
$8,609.92; 3) liquidated damages in the amount of $7,757.17; 4) audit and court costs in the
amount of $1,265.00; and 5) attorney’s fees in the amount of $14,176.25. Pl.’s Suppl. Br. 2.
The Court will first address Plaintiff’s request for unpaid contributions.
I.

Unpaid Contributions
As the Court noted in its previous order, see Feb. 6, 2023 Order 8–17, this case is

complicated by Defendant’s failure to keep records sufficient to permit Plaintiff to ensure that
she made all required contributions. Without adequate records, it is impossible to determine with
certainty whether Defendant owes unpaid contributions. However, “an employer cannot escape
liability [under ERISA] ‘by hiding behind his failure to keep records as statutorily required.’”
Cent. Ill. Carpenters Health & Welfare Tr. Fund v. Struben, No. 05-1094, 2009 WL 497393, at
*11 (C.D. Ill. Feb. 24, 2009) (quoting Brick Masons Pension Tr. v. Indus. Fence & Supply, Inc.,
839 F.2d 1333, 1338 (9th Cir. 1988)). Rather, a fact-finding court may accept a reasonable
estimation of the damages owed to a fund where “the absence of records that would allow [the
court] to perform a precise calculation stems from [the employer’s] failure to follow its statutory
obligation.” See Trs. of Chi. Plastering Inst. Pension Tr. v. Cork Plastering, Inc., No. 03 C

5

Because the CBA provisions referenced in this Order are identical in both Inside Agreements, the Court cites only
to Inside Agreement I.

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6867, 2007 WL 6080197, at *23 (N.D. Ill. Aug. 27, 2007). “It is enough under these
circumstances if there is a basis for a reasonable inference as to the extent of the damages.”
Struben, 2009 WL 497393, at *22 (quotation marks omitted). Any assumptions made by the
court must nonetheless be “just and reasonable.” See id. (quotation marks omitted).
In the Updated Calibre Report, Calibre Group used the procedure dictated by the Court in
the February 6, 2023 Order. See supra Section Suppl. Findings of Fact. It divided the estimation
of labor costs for each year (calculated by subtracting the cost of materials from the gross
receipts) over twelve months, then divided that figure by the appropriate journeyman wage rate.
See Revision Notes. Kalnes testified at the bench trial that the journeyman wage rate was drawn
from the applicable CBA. See Bench Trial Tr. 37:1–2; see also id. at 37:5–13 (Kalnes’
testimony that to the best of his knowledge, he had access to the appropriate wage rates). Calibre
Group estimated that the updated total amount of unpaid contributions comes to $38,785.85.
Updated Calibre Report 3.
Defendant disputes Calibre Group’s calculations, arguing that the updated audit should
have used the full journeyman wage package—consisting of the wage rate plus the benefits
received by the employee for each hour worked—instead of just the wage rate on its own. Def.’s
Resp. Suppl. Br. 1.6 She believes this is the appropriate figure because it “is what an employer
pays the employee per hour.” Id. (emphasis omitted). In support, she provides a document titled
“Labor Cost Summary,” which lists the wage package amount for various positions for the

Defendant uses “wage rate” and “wage package” interchangeably at times in her response; the Court determines
which figure she means based on context. See Def.’s Resp. Suppl. Br. 1–2. The Court uses “wage rate” to refer to
the wage rate on its own and “wage package” to refer to the wage rate plus benefits. Defendant also states that
Plaintiff is “using the journeyman benefits amount only,” id. at 1, which the Court presumes is a mistake, as Plaintiff
used the wage rate and not the benefits amount in its calculations, see Revision Notes.
6

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period June 6, 2022 through December 4, 2022. See Labor Cost Summary, Def.’s Resp. Suppl.
Br. Ex. A, ECF No. 86 at 3.
In its reply, Plaintiff reiterates that the journeyman wage rate, not the wage package, is
the appropriate divisor. Pl.’s Reply Suppl. Br. 1–2. It first points to the October 2017
amendment to the Trust Agreement, see Amendment to Trust Agreement, Pl.’s Trial Ex. 4 at 20–
22,7 which indicates that in the event that an employer fails to keep records as required by
ERISA, Plaintiff may approximate the hours worked by dividing the total pay by the journeyman
wage rate, not the wage package including benefits. Pl.’s Reply Suppl. Br. 1–2. Plaintiff further
argues that logic dictates dividing by the journeyman wage rate to approximate hours “where
there was no payment of the benefits” because “[i]f a company was underreporting hours and
failing to pay fringe benefits to the pension fund, the gross pay to the employee would not reflect
those amounts and those amounts would not be collected from the customer or client.” Id. at 2
(“Since those benefits were not paid, Defendant cannot be credited with them when calculating
hours.”).
The Court is persuaded by Plaintiff’s argument. Because benefits were not paid for the
hours being approximated here, it seems more appropriate to not include them in the
calculations. And while the amendment to the Trust Agreement was adopted in October 2017
and therefore does not apply to the entire period at issue, it lends credence to the approach used
by Plaintiff. See Amendment to Trust Agreements § 11 (“In the event that an [e]mployer fails to
maintain adequate, reliable, and contemporaneous records . . . . [Plaintiff] may calculate the
hours worked by an hourly employee by dividing the total pay received . . . by the journeyman
wage rate set forth in the applicable collective bargaining agreement.” (emphasis added)).

See also Trust Agreement § X.1 (providing that the Trust Agreement “may be amended to any extent at any time
or from time to time by the unanimous vote of all the Trustees”).
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Defendant claims that the wage package is “what an employer pays the employee per
hour,” Def.’s Resp. Suppl. Br. 1 (emphasis omitted), but beyond this assertion, she has not
provided evidence that the wage package is what she paid Chuck for unreported hours. Because
of Defendant’s failure to keep adequate records, the Court can only approximate the unpaid
contributions, and Plaintiff’s approach strikes the Court as “just and reasonable.” See Struben,
2009 WL 497393, at *22 (quotation marks omitted); see id. at *21 (“[The employer] cannot be
heard to complain that damages lack the exactness and precision of measurement that would be
possible had records been kept in accordance with the requirements of ERISA.”).
The Court thus accepts the estimation of unpaid contributions presented in the Updated
Calibre Report. Plaintiff is awarded $38,785.85 in unpaid contributions.
II.

Interest
Under ERISA, a successful fiduciary is entitled to receive interest on the unpaid

contributions in an amount “determined by using the rate provided under the plan, or, if none, the
rate prescribed under [26 U.S.C. § 6621].” 29 U.S.C. § 1132(g)(2). The Inside Agreement
provides that an employer is liable for interest if legal action is necessary to collect on unpaid
contributions but does not set a rate. Inside Agreement I § 2.26(B). Plaintiff seeks $8,609.92 in
prejudgment interest, calculated by using the current rate prescribed under § 6621. Pl.’s Suppl.
Br. 1–2. It provides its interest calculations as an exhibit. See Interest Schedule, Pl.’s Suppl. Br.
Ex. B, ECF No. 85-2.
Defendant argues that Plaintiff is not entitled to any interest on the unpaid contributions.
See Def.’s Resp. Supp. Br. 2. She cites to Article V of a document hand labeled as “N.E.C.A.
Local #145 IBEW Pension Trust Employer Auditing Program” (“Audit Policies”). See Audit
Policies, Def’s Resp. Suppl. Br. Ex. F, ECF No. 86-1 at 21. Only one page of the document is

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provided, and no context is given. The Court presumes that Defendant points to this document
because it does not mention the recovery of interest. But Defendant does not explain how this
document overrides the text of ERISA, which explicitly mandates an award of interest to a
successful fiduciary. See 29 U.S.C. § 1132(g)(2)(B).
Plaintiff has adequately supported its request for prejudgment interest on the unpaid
contributions.8 Accordingly, the Court awards Plaintiff $8,609.92 in interest.
III.

Liquidated Damages
ERISA provides that a court must award a successful fiduciary an amount equal to the

greater of either (a) interest on the unpaid contributions or (b) liquidated damages provided for
under the plan in an amount not in excess of twenty percent of the unpaid contributions. See 29
U.S.C. § 1132(g)(2)(C). Plaintiff requests $7,757.17 in liquidated damages, an amount
constituting twenty percent of the unpaid contributions, noting that the liquidated damages policy
under the Inside Agreement would result in an award in excess of twenty percent of the
delinquent contributions. See Pl.’s Suppl. Br. 1–2. As the earliest unpaid contributions stem
from 2015, see, e.g., Updated Calibre Report 4–5, the Court agrees that the liquidated damages
provision in the Inside Agreement—which provides for damages of $50.00 “per day for each and
every working day the reports and contributions are delinquent,” Inside Agreement I § 2.26(B)—
would exceed ERISA’s cap. As such, twenty percent of the unpaid contributions is the
appropriate amount. See also Bench Trial Tr. 28:4–18 (testimony acknowledging that the
liquidated damages provision under the CBA would result in an amount of liquidated damages
greater than the maximum permitted by ERISA).

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The Court notes that Defendant makes no objection to Plaintiff’s actual calculation of interest.

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Defendant contends that Plaintiff is entitled to an amount of only ten percent of the
unpaid contributions as liquidated damages, pointing again to the Audit Policies. Def.’s Resp.
Suppl. Br. 2. As Plaintiff points out, the section to which Defendant cites establishing the ten
percent rate applies “during the initial audit process and prior to filing of a lawsuit.” Pl.’s Reply
Suppl. Br. 2. The subsequent section, which Defendant ignores, provides that “[d]epending upon
the nature of the delinquency, liquidated damages shall be assessed on all delinquencies pursuant
to the appropriate [CBA] in addition to the payment under” the prior section, Audit Policies
§ 5.02. See Pl.’s Reply Suppl. Br. 3.9 Moreover, Defendant again fails to explain how this
document takes precedence over ERISA’s mandates.
Plaintiff is awarded $7,757.17, or twenty percent of the unpaid contributions, in
liquidated damages.
IV.

Audit and Court Costs
Under the Inside Agreement, an employer is liable for “all reasonable costs incurred”

should legal action be necessary to recover delinquent fees, including “filing fees, . . . [and] audit
costs.” Inside Agreement I § 2.26(B). An award of audit costs is likewise authorized by ERISA.
See 29 U.S.C. § 1132(g)(2)(E) (“In any action . . . to enforce section 1145 of this title in which a
judgment in favor of the plan is awarded, the court shall award the plan such other legal or
equitable relief as the court deems appropriate.”); see also Trs. of Teamsters Union Loc. 142
Pension Tr. Fund v. Actin, Inc., Cause No. 2:07-CV-289-TS, 2010 WL 3893982, at *10 (N.D.
Ind. Sept. 28, 2010) (“Under ERISA, audit costs are part of the relief due to a prevailing plaintiff
under 29 U.S.C. § 1132(a)(2)(E) as ‘other legal or equitable relief.’” (citing Moriarty ex rel. Loc.
Union No. 727 v. Svec, 429 F.3d 710, 721 (7th Cir. 2005))). Plaintiff requests $1,265.00 in audit

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The Court notes that without any context to the Audit Policies, it cannot firmly ascertain to whom this document
applies.

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and court costs, Pl.’s Suppl. Br. 2, consisting of $825.00 for the audit performed by Calibre
Group, see Calibre Group Invoice, Pl.’s Trial Ex. 6 at 18, and $440.00 in court costs, see
Original Itemization 1, Pl.’s Trial Ex. 7 (listing $400.00 as the filing fee and $40.00 as the fee for
service of process).
As Plaintiff has adequately supported its request for audit and court costs, the Court
awards it $1,265.00 in costs.
V.

Attorney’s Fees
Finally, Plaintiff requests $14,176.25 in attorney’s fees for the fees incurred by its

counsel “through the date of filing th[e] supplemental brief, plus one hour of anticipated time by
the undersigned counsel, at a rate of $250 per hour,” to review Defendant’s responsive pleading
and the Court’s final order. Pl.’s Suppl. Br. 2. In support, it provides an itemization of the hours
expended by its counsel and their requested rates. See Updated Itemization, Pl.’s Suppl. Br. Ex.
D, ECF No. 85-3. Defendant opposes the request, indicating that Plaintiff should only be
awarded its attorney’s fees through the bench trial, which would come to $11,088.75. See Def.’s
Resp. Suppl. Br. 2.
A fiduciary that successfully enforces § 1145 is entitled to “reasonable attorney’s fees . . .
to be paid by the defendant.” 29 U.S.C. § 1132(g)(2)(D); see also Inside Agreement I § 2.26(B)
(providing that an “[e]mployer shall be liable . . . for all attorneys’ fees” where legal action is
necessary to recover delinquent contributions). To calculate fees in ERISA cases, courts use the
lodestar method—reasonable hourly rate multiplied by the number of hours reasonably
expended. See Anderson v. AB Painting & Sandblasting Inc., 578 F.3d 542, 544 (7th Cir. 2009)
(applying the lodestar method to an ERISA case). The reasonable hourly rate is to be judged
“according to the prevailing market rates in the relevant community.” Blum v. Stenson, 465 U.S.

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886, 895 (1984). “The best evidence of the market rate is the amount the attorney actually bills
for similar work.” Montanez v. Simon, 755 F.3d 547, 553 (7th Cir. 2014). “[I]f that rate can’t be
determined, then the district court may rely on evidence of rates charged by similarly
experienced attorneys in the community and evidence of rates set for the attorney in similar
cases.” Id. The fee applicant “bears the burden of establishing the market rate for the work.” Id.
The itemization shows rates between $225.00 and $300.00 per hour for Plaintiff’s
counsel’s work on this case. Although Defendant does not object to these rates, the Court finds
that Plaintiff has failed to satisfy its burden to support its requested rates. Beyond a statement by
Plaintiff’s counsel in closing argument at the bench trial that these hourly rates are reasonable,
see Bench Trial Tr. 124:21–23, Plaintiff has provided nothing to support that these rates conform
to prevailing market rates in the relevant community, such as an affidavit from an attorney. Cf.
Pakovich v. Verizon Ltd Plan, No. 09-cv-0090-MJR, 2010 WL 1654159, at *3 (S.D. Ill. Apr. 22,
2010) (denying a motion for attorney’s fees where counsel submitted only an invoice showing
the charges and “provided no documentation regarding a reasonable hourly rate”).
Furthermore, Plaintiff does not explain why it should receive attorney’s fees for the time
it spent on the updated audit and supplemental briefing after the Court found its initial
calculations were not just and reasonable, even after Defendant argued that Plaintiff should only
receive its attorney’s fees incurred through the bench trial, see Def.’s Resp. Suppl. Br. 2.
The Court will address the issue of attorney’s fees separately so that Plaintiff can provide
proper support for its request. Plaintiff is directed to submit additional briefing supporting its
requested hourly rates and its request for fees incurred after the bench trial. Defendant may file a
response within two weeks after service of Plaintiff’s briefing.

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CONCLUSION
For the foregoing reasons, Plaintiff is awarded $38,785.85 in unpaid contributions;
$8,609.92 in interest on the unpaid contributions; $7,757.17 in liquidated damages; and $1,265.00
in audit and court costs. Plaintiff is directed to submit additional briefing on why the amount of
attorney’s fees it requests is reasonable by October 6, 2023. Defendant may file a response within
two weeks after service of Plaintiff’s briefing.
Entered this 22nd day of September, 2023.
s/ Sara Darrow
SARA DARROW
CHIEF UNITED STATES DISTRICT JUDGE

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