Aishman v. GCIU Retirement Fund CEO et al

Filing 83

ORDER ADOPTING REPORT AND RECOMMENDATION OF U. S. MAGISTRATE JUDGE. It is ordered that the 75 Report and Recommendation is adopted and the 73 Motion for Summary Judgment is granted and Aishman's claims against GCIU Retirement Fund CEO, GCIU Retirement Fund Employers, and Matthew Wenner are dismissed with prejudice. A final judgment will be entered separately. Signed by District Judge Ron Clark on 1/17/18. (mrp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
BEAUMONT DIVISION
ALFRED AISHMAN
v.
GCIU RETIREMENT FUND CEO, et al.

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NO. 1:16-cv-268

ORDER ADOPTING REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
The court referred this case to the Honorable Zack Hawthorn, United States Magistrate
Judge, for pre-trial proceedings.

Pending before the court is Defendant GCIU-Employer

Retirement Fund and Defendant Matthew Wenner’s (“GCIU”) “Motion for Summary
Judgment.” Doc. No. 73. The court has received and considered the report of the magistrate
judge (Doc. No. 75), filed on December 19, 2017, which recommended granting the motion.
Plaintiff Alfred Aishman filed a timely objection. Doc. No. 80.
A party who files timely written objections to a magistrate judge’s report and
recommendation is entitled to a de novo determination of those findings or recommendations to
which the party specifically objects. 28 U.S.C. § 636(b)(l)(c); FED. R. CIV. P. 72(b)(2)–(3).
“Parties filing objections must specifically identify those findings [to which they object].
Frivolous, conclusive or general objections need not be considered by the district court.” Nettles
v. Wainwright, 677 F.2d 404, 410 n.8 (5th Cir. 1982) (en banc), overruled on other grounds by
Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415 (5th Cir. 1996) (en banc).
Aishman objects by alleging that St. Regis Paper Company (St. Regis), the contributing
employer he worked for from 1980 to 1985, “simply [laid] him off through their fraudulent
practice in order to deny Plaintiff his earned retirement benefits.” Doc. No. 80, at 2. Even if St.

Regis somehow “fraudulently” laid Aishman off, it is unclear how this would be a legitimate
claim against GCIU in its role as the employee retirement fund manager. GCIU provided
evidence that the Plaintiff accumulated a maximum of 4.5 years of vesting credits in the 1980s,
but 10.0 years of credits were required to fully vest in the retirement plan. See Doc. No. 73, Ex.
B, Art. VII, § 3; Ex. D. Instead of fully vesting, Aishman’s credits were gradually forfeited until
he had 0.0 (zero) years of vesting credits remaining from his work during the 1980s. See
generally Doc. No. 73, Ex. B, Art. VI, § 1.
Aishman did not respond to GCIU’s motion for summary judgment or submit any
evidence to controvert the number of credits required to fully vest, his hours worked, or how his
vesting credits should be calculated in another way. Aishman now argues that his overtime
credits were miscalculated, and he should have been accorded 9.5 vesting credits before he was
laid off. Doc. No. 80, at 4. GCIU has provided evidence of how hourly calculations convert to
years of credit for vesting purposes (See Doc. No. 73, Ex. B, Art. VII, § 1), while Aishman has
provided only unsupported assertions. For Aishman’s allegation of 9.5 vesting credits to be true,
earning more than 1.0 vesting credits in a year must be possible. Based on the only relevant
evidence submitted to this court, 1.0 vesting credits is the maximum that can be earned in one
year, no matter how many overtime hours are worked. See id. Thus, Aishman’s claim of 9.5
vesting credits is impossible because he only alleges he worked for St. Regis Paper Company
from 1980 to 1985. Doc. No. 80, at 2. Accordingly, Aishman’s objections are overruled.
Aishman cites to an Eighth Circuit case, United States v. Jennings, 487 F.3d 564 (8th Cir.
2007), for the premise that the Government can seek civil “forfeiture of any property[,] real or
personal[,] which constitutes or is [derived] from proceeds traceable to a violation of… any
offense constituting ‘specified unlawful activity’….” Doc. No. 80, at 3.

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The cited case is not

germane to Aishman’s lawsuit before this court. Accordingly, Aishman’s objections in reliance
on Jennings are overruled.
It is, therefore, ORDERED that Aishman’s objections (Doc. No. 80) are OVERRULED,
the magistrate judge’s report and recommendation (Doc. No. 75) is ADOPTED, GCIU’s
“Motion for Summary Judgment” (Doc. No. 73) is GRANTED, and Aishman’s claims against
GCIU Retirement Fund CEO, GCIU Retirement Fund Employers, and Matthew Wenner are
DISMISSED WITH PREJUDICE. A final judgment will be entered separately.
So ORDERED and SIGNED this 17 day of January, 2018.

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Ron Clark, United States District Judge

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