Moss v. United Airlines, Inc. et al
Filing
106
MEMORANDUM Opinion and Order: Plaintiffs' motion for summary judgment, R. 95 , on Counts I and II is denied. Defendants' motion for summary judgment, R. 92 , is granted in part with respect to Counts I and II, and denied in part with resp ect to Count III. A status hearing is set for Tuesday, November 19, 2019 at 9 a.m. The parties should be prepared to discuss at the status hearing how the case should proceed on Count III, including whether, in light of the Court's preliminary o pinion on Count III, referral to the magistrate judge for settlement discussions would be helpful. If the parties are not interested in a referral for settlement discussions, the Court's current suggestion is that cross-motions on Count III, sup ported by more thorough briefing and Local Rule 56.1 statements of fact, would be the best way forward. If the parties agree with this suggestion, they should contact the Courtroom Deputy with an agreed briefing schedule and the status hearing will b e canceled. If either side believes the claim is not amenable to summary judgment, they should be prepared to identify the genuine questions of material fact requiring a trial at the status hearing. Signed by the Honorable Thomas M. Durkin on 11/12/2019:Mailed notice(srn, )
Case: 1:16-cv-08496 Document #: 106 Filed: 11/12/19 Page 1 of 17 PageID #:1176
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MICHAEL MOSS, individually and on
behalf of all others similarly situated,
Plaintiff,
No. 16 C 8496
v.
Judge Thomas M. Durkin
UNITED AIRLINES, INC.; UNITED
CONTINENTAL HOLDINGS, INC.; UNITED
AIR LINES, INC.; and CONTINENTAL
AIRLINES, INC.,
Defendants.
MEMORANDUM OPINION AND ORDER
Michael Moss alleges that pilots for the defendant airlines were deprived of
sick time accrual (Count I), vacation time accrual (Count II), and pension payments
(Count III), during military leave in violation of the federal Uniformed Services
Employment and Reemployment Rights Act (the “Act”). The Court certified a subclass for each count. See R. 68. Defendants have moved for summary judgment on all
three counts, R. 92, and Plaintiffs have cross-moved for summary judgment on Counts
I and II, R. 95. Plaintiffs’ motion is denied, and Defendants’ motion is granted in part
and denied in part.
Legal Standard
Summary judgment is appropriate “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317,
Case: 1:16-cv-08496 Document #: 106 Filed: 11/12/19 Page 2 of 17 PageID #:1176
322-23 (1986). The Court considers the entire evidentiary record and must view all of
the evidence and draw all reasonable inferences from that evidence in the light most
favorable to the nonmovant. Horton v. Pobjecky, 883 F.3d 941, 948 (7th Cir. 2018). To
defeat summary judgment, a nonmovant must produce more than a “mere scintilla of
evidence” and come forward with “specific facts showing that there is a genuine issue
for trial.” Johnson v. Advocate Health and Hosps. Corp., 892 F.3d 887, 894, 896 (7th
Cir. 2018). Ultimately, summary judgment is warranted only if a reasonable jury
could not return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986).
Background
In 2010, defendants United Air Lines, Inc., and Continental Airlines, Inc.,
merged by becoming wholly-owned subsidiaries of defendant United Continental
Holdings, Inc. See R. 99-1 at 2-3 (¶ 1). In 2013, United Air Lines and Continental
Airlines merged into United Airlines, Inc. Id. (unlike the merging entity, the name of
the merged entity contains no space between “air” and “lines”) In 2019, the holding
company changed its name to United Airlines Holdings, Inc. Id. United and
Continental pilots were governed by separate collective bargaining agreements until
2014 when a single agreement was adopted for all pilots of the merged entity. See id.
at 39 (¶ 32). 1
Defendants argue that the holdings company should be dismissed because it has
never been the employer of any of the Plaintiffs. Defendants also argue that the
merged subsidiary entities should be dismissed because they no longer exist. But this
case concerns conduct that occurred both before and after the multiple relevant
mergers. Defendants’ arguments do not address how liabilities were transferred in
1
2
Case: 1:16-cv-08496 Document #: 106 Filed: 11/12/19 Page 3 of 17 PageID #:1176
Before the merger, United pilots accrued sick days during all periods of
military leave, see id. at 41 (¶ 35), and accrued vacation days during the first 30 days
of military leave, see id. at 42 (¶ 37). Before the merger, Continental pilots accrued
sick days through the first 30 days of military leave, see id. at 44 (¶ 40), and accrued
vacation days through the first 90 days of military leave, see id. 45-47 (¶ 42). Since
the merger, Defendants’ pilots accrue vacation days and sick days through 90 days of
military leave. See id. at 14-16, 20 (¶¶ 11, 16). Plaintiffs claim that the vacation and
sick time accrual policies both pre- and post-merger deprived them of benefits during
military leave in violation of the Act.
Analysis
The Act provides that “[a] person who . . . has an obligation to perform service
in a uniformed service shall not be denied . . . any benefit of employment by an
employer on the basis of that . . . performance of service, or obligation.” 38 U.S.C. §
4311(a). Further, the Act makes a distinction between “seniority” based benefits and
“other” benefits:
A person who is reemployed under this chapter is entitled
to the seniority and other rights and benefits determined
by seniority that the person had on the date of the
commencement of service in the uniformed services plus
the additional seniority and rights and benefits that such
person would have attained if the person had remained
continuously employed.
these mergers. For the Court to grant summary judgment based on these arguments,
Defendants would need to produce evidence that none of the entities Defendants seek
to dismiss currently maintains liability for the claims at issue in this case. And in any
case, it will be necessary to reach these arguments only if the Court intends to grant
summary judgment in Plaintiffs’ favor on the merits of any of their claims. We haven’t
reached that point.
3
Case: 1:16-cv-08496 Document #: 106 Filed: 11/12/19 Page 4 of 17 PageID #:1176
38 U.S.C. § 4316(a);
[A] person who is absent from a position of employment by
reason of service in the uniformed services shall be . . .
entitled to such other rights and benefits not determined
by seniority as are generally provided by the employer of
the person to employees having similar seniority, status,
and pay who are on furlough or leave of absence[.]
38 U.S.C. § 4316(b)(1)(B). A benefit is considered seniority-based when “the nature of
the benefit [is] a reward for length of service, rather than a form of short-term
compensation for services rendered.” Coffy v. Republic Steel Corp., 447 U.S. 191, 19798 (1980); see also DeLee v. City of Plymouth, Ind., 773 F.3d 172 (7th Cir. 2014).
The Supreme Court has recognized that the problem with this standard is that
“even the most traditional kinds of seniority privileges could be as easily tied to a
work requirement as to the more usual criterion of time as an employee.” Coffy, 447
U.S. at 203. In other words, there is no objective difference between a “work
requirement” (or “compensation for services rendered”) and “time as an employee” (or
“length of service”), because employees spend their time working. The work
accomplished and the time spent accomplishing it are two sides of the same job-coin.
True, length of service—or seniority—is generally measured in years, whereas
employees are often compensated for services rendered by the hour. But both involve
providing a benefit (whether money, vacation time, etc.) per unit of time worked. The
inherent tie between time and work means that even rewards for length of service
over months or years can be framed as compensation for services rendered. See
Alabama Power Co. v. Davis, 431 U.S. 581, 592-93 (1977) (“It is obvious that pension
4
Case: 1:16-cv-08496 Document #: 106 Filed: 11/12/19 Page 5 of 17 PageID #:1176
payments have some resemblance to compensation for work performed. . . . The same
observations, however, can be made about any benefit and therefore are of little
assistance in determining whether a particular benefit recompenses labor or rewards
longevity with an employer.”).
Since all benefits can be described with reference to a certain period of time
worked, “the particular formula” by which “benefits [are] calculated,” i.e., the length
of the period of time worked necessary to receive any given benefit, is not the “crucial
factor” in determining whether the benefit is seniority-based for purposes of the Act.
See Alabama Power, 431 U.S. at 592, and Coffy, 447 U.S. at 203. Rather, it is the “real
nature” of the benefit that is key to determining whether a benefit is a “reward for
length of service” or “compensation for services rendered.” Alabama Power, 431 U.S.
at 588-89.
By “real nature” the Supreme Court appears to mean whether the benefit is a
future-oriented longevity incentive, or backward-looking compensation for work
already performed. The Supreme Court has held that benefits like pensions,
severance pay, or unemployment pay are seniority-based because they concern an
exchange of financial security for an employee’s long-term commitment to an
employer, i.e., accrual of seniority. See Accardi v. Penn. R. Co., 383 U.S. 225, 230
(1966) (“[The] use of the label ‘compensated service’ cannot obscure the fact that the
real nature of these payments was compensation for loss of jobs. And the cost to an
employee of losing his job is not measured by how much work he did in the past—no
matter how calculated—but by the rights and benefits he forfeits by giving up his
5
Case: 1:16-cv-08496 Document #: 106 Filed: 11/12/19 Page 6 of 17 PageID #:1176
job.”) (emphasis added); Alabama Power, 431 U.S. at 593-94 (pension credit was held
to be seniority-based because a period of years is required for a pension to vest and
the purpose of a pension is to assure financial security of long-time employees in
retirement); Coffy, 447 U.S. at 205 (“[T]he purpose and function of the [weekly
supplemental unemployment benefits] is to provide economic security during periods
of layoff to employees who have been in the service of the employer for a significant
period.”); see also DeLee, 773 F.3d at 173 (holding that an annual bonus that could be
prorated monthly was a seniority-based benefit, because the express purpose of the
bonus was to be “an incentive for police and firemen to remain in the service of the
City”).
By contrast, the Supreme Court has held that vacation days accrued hourly
were not seniority-based, because a holding to the contrary would be “sharply
inconsistent with the common conception of a vacation as a reward for and respite
from a lengthy period of labor.” Foster v. Dravo Corp., 420 U.S. 92, 101 (1975). In
other words, unlike the pensions, severance pay, or unemployment pay addressed in
Accardi, Alabama Power, and Coffy, vacation days do not incentivize longevity of
employment, but rather compensate for (or in the Supreme Court’s words, provide a
“respite from”) the effort an employee has expended in the past. This reasoning is
reflected in the federal regulations implementing the Act. See 20 C.F.R. § 1002.150
6
Case: 1:16-cv-08496 Document #: 106 Filed: 11/12/19 Page 7 of 17 PageID #:1176
(“As a general matter, accrual of vacation leave is considered to be a non-seniority
benefit[.]”). 2
A.
Count II: Vacation Time
1.
Seniority-Based Benefits Under § 4316(a)
Despite the extent of the authority that vacation days generally are not a
seniority-based benefit, Plaintiffs argue that “vacation accrual is a seniority-based
benefit because it accrues solely with the passage of time.” R. 95 at 11. It is true that
under the collective bargaining agreement at issue the number of vacation days a
pilot is eligible to accrue in a given year is determined by the pilot’s “years of service.”
See R. 94-2 at 17 (p. 135, § 11-A-3) (for instance, 14 days each year for 1-4 years of
service, 21 days each year for 5-10 years of service, and so on). But the fact that
eligibility for a certain number of vacation days is expressly tied to “years of service”
does not show that actual accrual of the vacation days in a given year is a senioritybased benefit. Indeed, the collective bargaining agreement provides that vacation
accrual will be reduced by one-twelfth for every month on leave of absence. See id. §
11-A-4. 3 Thus, actual accrual of vacation days (as opposed to eligibility for a certain
number of vacation days) is much more akin to compensation for services rendered
than a reward for length of service. Of course, actual accrual of vacation days also
Because the Supreme Court has previously addressed a claim regarding vacation
time accrual under the Act, the Court starts its analysis with Count II, rather than
Count I, which concerns sick time accrual, a benefit the Supreme Court apparently
has not previously addressed.
2
By contrast, “longevity,” which is akin to seniority under the collective bargaining
agreement, generally continues to accrue while a pilot is on a leave of absence. See
id. at 30 (p. 148) § 12-I.
3
7
Case: 1:16-cv-08496 Document #: 106 Filed: 11/12/19 Page 8 of 17 PageID #:1176
occurs with the passage of time. But as discussed, this is true of any employment
benefit and is not particularly informative, let alone dispositive, of whether vacation
day accrual is seniority-based.
Furthermore, pilots who do not use all their vacation days by the end of the
year are compensated with an additional pension contribution for the first 21 unused
days, and regular pay for any additional unused days. See id. at 22 (p. 140) § 11-H.
The “forfeiture” of vacation days (as the agreement titles it) is necessary because
pilots who haven’t used vacation days have worked more days in a year than their
salary compensates them for. A pilot’s salary contemplates that the pilot will take a
certain number of vacation days. If the pilot fails to take that vacation, the pilot has
worked more than anticipated and must be compensated for the unused vacation
days. Since the days are forfeited at the end of each year, they should not be
understood as any more of an incentive for continued employment with the company
than continued receipt of salary (which is of course compensation and certainly not a
seniority-based benefit). This focus on compensation for work completed in the past
shows that the “real nature” of vacation days in this case is not a reward for length
of service. Thus, vacation days are not a seniority-based benefit under the collective
bargaining agreement.
Plaintiffs rely heavily on a case from the Western District of Pennsylvania in
which the court found that vacation time accrual was seniority-based. See Wingard
v. Allegheny County, 2017 WL 1755974 (W.D. Pa. May 3, 2017). The court reasoned
that, “[u]nlike Foster,” in which the Supreme Court held that vacation days were not
8
Case: 1:16-cv-08496 Document #: 106 Filed: 11/12/19 Page 9 of 17 PageID #:1176
a seniority-based benefit, the plaintiff in Wingard “cannot earn more vacation by
working more and does not have to work a requisite amount of weeks in a calendar
year to receive vacation that year.” Id. at *2. But Wingard is distinguishable for two
reasons. First, unlike the collective bargaining agreement in this case, the Wingard
agreement apparently did not dock vacation days for leaves of absence generally.
Second, and more important, the plaintiff’s claim in Wingard was based on the
employer having “incorrectly reduced his seniority” resulting in a corresponding
reduction in the number of vacation days the plaintiff was eligible to take. Id. at *1.
Plaintiffs have not made an analogous claim in this case. Rather, Plaintiffs claim that
Defendants failed to allow pilots to accrue vacation days “during periods of long-term
military leave.” R. 76 ¶ 44. Plaintiffs here do not allege that they were deprived of
seniority—and the corresponding vacation eligibility—because of military leave. But
that appears to have been the claim at issue in Wingard. And to the extent that
Wingard’s holding implies that the vacation day benefits at issue in this case are
seniority-based, this Court finds that reasoning unpersuasive for all the foregoing
reasons.
2.
Other Benefits Under § 4316(b)(1)
Since vacation days are not a seniority-based benefit, Plaintiffs are entitled to
only the “other” benefits “generally provided,” 38 U.S.C. § 4316(b)(1)(B), to employees
on “comparable leaves of absence.” Crews v. City of Mt. Vernon, 567 F.3d 860, 865
(7th Cir. 2009). Plaintiffs argue that they are entitled to accrue vacation days on
military leave “because [Defendants] provide[] those benefits to employees on
9
Case: 1:16-cv-08496 Document #: 106 Filed: 11/12/19 Page 10 of 17 PageID #:1176
comparable forms of leave.” R. 99 at 10. The glaring problem with this argument is
that, contrary to Plaintiffs’ argument, the collective bargaining agreement does not
permit accrual of vacation days during leaves of absence longer than 30 days. See R.
94-2 at 17 (p. 135) § 11-A-4. Indeed, the agreement includes a special exception from
this general rule such that pilots on military leaves of up to 90 days are permitted to
accrue vacation days. Id. at 25 (p. 143) § 12-D-2.
Despite the fact that vacation time is not generally accrued during leaves of
absence, it is accrued during jury duty, “association leave,” and “sick leave.” Plaintiffs
argue that these three forms of “leave” are “comparable” to military leave, such that
vacation time accrual should be available to military leave longer than 90 days.
Jury Duty. It is undisputed that the general prohibition on accrual of vacation
days during leaves longer than 30 days does not apply to leave for jury duty. Plaintiffs
argue that should be true for military leave as well. But leave for jury duty rarely
approaches a complete month, see R. 99-1 at 23 (¶ 20), 4 so it can’t be a basis to argue
that Defendants “generally provide” vacation days for leave over 30 days, let alone 90
days. 5
Furthermore, Plaintiffs barely mention jury duty in their opposition brief to
Defendants’ motion. In passing, Plaintiffs cite Waltermyer v. Alumnium Company of
Plaintiffs dispute this fact with reference to data Defendants produced on the length
of jury duty pilots have taken. But the Court’s review of that data shows that
Plaintiffs incorrectly added jury duty days that were not consecutive. See R. 99-3 at
21-25.
4
Thus, the fact that prior to the merger, some class members did not accrue vacation
days during military leaves longer than 30 days (as opposed to 90 days under the
current, post-merger collective bargaining agreement), does not change the analysis.
5
10
Case: 1:16-cv-08496 Document #: 106 Filed: 11/12/19 Page 11 of 17 PageID #:1176
America, 804 F.2d 821 (3d Cir. 1986), and Duffer v. United Continental Holdings, 173
F. Supp. 3d 689, 705 (N.D. Ill. 2016). In Waltermyer, employees on jury duty (as well
as sick leave, bereavement leave, leave for service as a witness in court, and during
some layoffs) received pay for holidays that occurred during the leave, whereas
employees on military leave did not. The court found military leave comparable—and
thus the deprivation of holiday pay impermissible—because, like the other forms of
leave, military leave was “both compulsory and short.” Id. at 825. The district court
in Duffer made a similar finding. But regardless of whether this Court agrees that
jury duty and military leave are analogously compulsory, this case is not about short
leaves of absence since Defendants permit pilots to accrue vacation days on leaves up
to 90-days long, which is well beyond the normal length of jury duty service. To the
extent Defendants permit accrual of vacation days during jury duty lasting longer
than 90 consecutive days, there can be no reasonable dispute that jury duty service
of that length is highly unusual. For that reason, Defendants cannot be said to
“generally provide” the benefit of vacation day accrual during jury duty longer than
90 days.
Association Leave. Plaintiffs also argue that they should accrue vacation
days on military leave because pilots accrue benefits during what are known as
“Association Leaves of Absence,” or “ALA,” the “Association” being the pilots’ labor
union. See R. 94-2 at 61 (p. 433) § A. In addition to providing for leave to work for the
union, this section of the agreement also provides that “[a] Pilot shall be granted an
ALA to staff an executive position with any agency or branch of the Federal
11
Case: 1:16-cv-08496 Document #: 106 Filed: 11/12/19 Page 12 of 17 PageID #:1176
Government directly connected with aviation; e.g., FAA, DOT, or Congressional Staff,
or to serve as an elected member of the United States Congress.” Id. § A-2.
Plaintiffs argue generally that ALA “appear[s] to provide the most favorable
benefits.” R. 99 at 12. But Plaintiffs do not address the specific provisions of the
agreement concerning benefits provided during ALA. It is true that during ALA, “[a]ll
benefits and accruals shall be continued as if a Pilot on ALA were in Active Service.”
Id. at 63 (p. 435) § D-1. But this accrual is premised on the assumption that “[t]he
Association shall reimburse the Company for the cost of such benefits.” Id. Absent
that reimbursement, the Court finds that the agreement does not provide for accrual
of benefits during an ALA. Therefore, even if ALA is comparable to military leave,
Defendants do not generally provide benefits during ALA since the benefits are
covered by the union. Making no argument to the contrary, Plaintiffs have conceded
this analysis.
Sick Leave. Lastly, Plaintiffs argue that “sick leave” is comparable to military
leave. R. 99 at 12-13. But under the collective bargaining agreement, “sick leave” is
not a “leave of absence”; the sick leave provisions are in a separate section from leaves
of absence. One could argue that the involuntary nature of illness is comparable to
the involuntary nature of military leave once one has volunteered. But, eligibility to
take sick leave is governed by days that accrue while a pilot is working. And those
days will generally only cover relatively short-term illness. Pilots suffering a medical
condition lasting longer than common illness or injury eventually will have to take
“Medical Leave” or “Family & Medical Leave.” These forms of extended leave are
12
Case: 1:16-cv-08496 Document #: 106 Filed: 11/12/19 Page 13 of 17 PageID #:1176
provided for in the section governing leaves of absence, not the section governing sick
leave. See R. 94-2 at 25-26 (pp. 143-44) §§ 12-D, E. And as discussed, the agreement
does not provide for accrual of vacation time during these leaves of absence generally.
This distinction shows that “sick leave” is not a “leave of absence” under the
agreement. (This comports with the commonly understood distinction between sick
or vacation days which are accrued and spent on vacations and short-term illness
which happen to all people every year, and leaves of absence which are granted based
on the length of some underlying, generally unforeseen circumstance.) So the fact
that vacation days are accrued during “sick leave” is not a basis to find that the
agreement generally provides for vacation time during a leave of absence comparable
to military leave.
Therefore, Defendants’ failure to provide accrual of vacation days during
military leave longer than 90 days does not violate the Act.
B.
Count I: Sick Time
Despite attempting to shoehorn “sick leave” into the collective bargaining
agreement’s “leave of absence” section when addressing Count I, in Count II,
Plaintiffs focus on the fact that “sick leave” is not a leave of absence but an accrual of
“sick time,” analogous to the accrual of “vacation time.” Likely because there is no
material difference in the accrual of “sick time” and “vacation time” under the
collective bargaining agreement, 6 Plaintiffs’ arguments on Count I mirror their
Of course, the numbers of hours or days accrued, and the rates of accrual, are
different under the agreement’s vacation and sick time sections. But those are
differences in the “particular formulas” by which accrual is “calculated,” see Alabama
6
13
Case: 1:16-cv-08496 Document #: 106 Filed: 11/12/19 Page 14 of 17 PageID #:1176
arguments on Count II. Therefore, the Court grants summary judgment to
Defendants on Count I for the same reasons it grants summary judgment to
Defendants on Count II.
C.
Count III: Pension Payment
Counts I and II are based on § 4316. In Count III, Plaintiffs claim that
Defendants violated a different section, namely § 4318, by failing to properly calculate
a rate of pay resulting in lower pension contributions for certain pilots. The Court
turns to Count III now.
The Act does not require employers to pay employees while they are on military
leave. But upon return from military leave, an employee is entitled to the pension
benefits they would have received “not having incurred a break in service with the
employer.” 38 U.S.C. § 4318(a)(2)(A). In other words, an employer of an employee
returning from military service must “allocate the amount of any employer
contribution for the person in the same manner and to the same extent the allocation
occurs for other employees during the period of service.” 38 U.S.C. § 4318(b)(1).
Specifically, “[f]or purposes of computing an employer’s [pension] liability . . . or the
employee’s [pension] contributions . . . , the employee’s compensation during the
period of service . . . shall be computed . . . at the rate the employee would have
received but for the period of service[.]” 38 U.S.C.A. § 4318(b)(3)(A).
Power, 431 U.S. at 592, and thus are not material to the Court’s analysis of Plaintiffs’
claims.
14
Case: 1:16-cv-08496 Document #: 106 Filed: 11/12/19 Page 15 of 17 PageID #:1176
In this case, under an amendment to the collective bargaining agreement,
Defendants agreed to a one-time extension of the longevity date of certain pilots who
had been furloughed such that they were owed additional compensation. See R. 99-1
at 33-36 (¶¶ 28-29). As usual with any compensation Defendants pay, 16% of the
compensation was paid to the pilots’ pensions. Id.
This special payment was made to 1,600 pilots, some of whom were on military
leave for parts of the relevant pay-period. Id. at 34-38 (¶¶ 29, 31). It is undisputed
that the compensation amounts excluded time spent on military leave. See R. 99-1 at
48-49 (¶¶ 2-4). It is also undisputed that the 16% pension contributions were made
based on the compensation that did not include time spent on military leave. Id.
Plaintiffs claim that these payments short-changed pilots who had been on
military leave during the relevant time period, because the pension payments should
have been made as a percentage of their actual compensation plus the compensation
they would have earned during the time they were on military leave—what Plaintiffs
refer to as their “deemed” compensation. Defendants argue that the 16% of
compensation paid to the pilots’ pensions were not “pension contributions,” for
purposes of the Act, but were “wage payments” to which pilots are not entitled during
military leave. Defendants, however, cite no authority for their argument that the
pension portion of the compensation at issue here is not a “pension contribution” for
purposes of § 4318. Maybe this distinction is more apparent to counsel more familiar
with the Act who have greater knowledge of customary collective bargaining
agreement terms than the Court. But if that is the case, that information went
15
Case: 1:16-cv-08496 Document #: 106 Filed: 11/12/19 Page 16 of 17 PageID #:1176
unexpressed in the briefs. The authority Defendants cited is an insufficient basis to
grant Defendants’ motion for summary judgment on Count III. (Plaintiffs did not
move for summary judgment on this count.)
Indeed, both parties gave short shrift to Count III in their briefs. While the
Court believes there may be merit to Plaintiffs’ argument that § 4318 requires
pension payments to be made based on deemed earnings, and that Defendants failed
to comply with that law in this case, the Court is reluctant to make a definitive finding
on such minimal briefing. Furthermore, the Court wonders why, if that is all there is
to it, Plaintiffs didn’t cross-move for summary judgment on Count III, along with
their motion on Counts I and II? Indeed, having denied Defendants’ motion for
summary judgment on Count III, the Court does not perceive there to be any
questions of fact to be decided by trial, this case seeming instead to turn on rather
straightforward issues of statutory interpretation and application to undisputed
facts.
Conclusion
Therefore, Plaintiffs’ motion for summary judgment, R. 95, on Counts I and II
is denied. Defendants’ motion for summary judgment, R. 92, is granted in part with
respect to Counts I and II, and denied in part with respect to Count III. A status
hearing is set for Tuesday, November 19, 2019 at 9 a.m. The parties should be
prepared to discuss at the status hearing how the case should proceed on Count III,
including whether, in light of the Court’s preliminary opinion on Count III, referral
to the magistrate judge for settlement discussions would be helpful. If the parties are
16
Case: 1:16-cv-08496 Document #: 106 Filed: 11/12/19 Page 17 of 17 PageID #:1176
not interested in a referral for settlement discussions, the Court’s current suggestion
is that cross-motions on Count III, supported by more thorough briefing and Local
Rule 56.1 statements of fact, would be the best way forward. If the parties agree with
this suggestion, they should contact the Courtroom Deputy with an agreed briefing
schedule and the status hearing will be canceled. If either side believes the claim is
not amenable to summary judgment, they should be prepared to identify the genuine
questions of material fact requiring a trial at the status hearing.
ENTERED:
______________________________
Honorable Thomas M. Durkin
United States District Judge
Dated: November 12, 2019
17
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?