Appendix — Toski v. McDonnell
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Supreme Court, U.S.
I LE D
OCT 6 1997
CLERK
No. 97-217
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1997
BRUCE RICHARD TOSKI,
Petitioner,
WILLIAM J. MCDONNELL,
JEFFERSON H. HENRY and
KENDALL G. WILLIAMS,
Respondents.
ON PETITION FOR WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
APPENDIX TO
RESPONDENTS’ BRIEF IN OPPOSITION
DONALD A. BLACKWELL
(Counsel of Record)
ANANIA, BANDKLAYDER
& BLACKWELL
100 S.E. Second Street
Suite 3300
Miami, Florida 33131
(305) 373-4900
Counsel for Respondents.
Washington, D.C. « THIEL PRESS ¢ (202) 328-3286
Sink: nt Ong nd NO ea
(2)
TABLE OF CONTENTS
APPENDIX A — United States District Judge
Davis’ March 9, 1994 Order Denying Motion
to Appeal Jn Forma Pauperts. ............4..
APPENDIX B — 11th Cir.R. 28, 1.0.P.-6........
APPENDIX C — Defendants’ August 17, 1993
Motion for Summary Final Judgment and
Supporting Memorandum of Law (without
| SEPT CTE ee TO ET CTE Se Tee eTe
APPENDIX D — Plaintiff’s October 12, 1993
Response to Defendants’ Motion for Sum-
oo e Pererrrre rere Terr ree
APPENDIX E — Plaintiff’s November 23, 1993
Objection to Magistrate Turnoff’s Report
and Recommendation re: Defendants’
Motion for Summary Judgment ............
APPENDIX F — Initial Brief of Appellant, dated
April 15, 1996, in the United States Court
of Appeals for the Eleventh Circuit..........
APPENDIX G — Brief of Appellees, dated June
20, 1996, in the United States Court of
Appeals for the Eleventh Circuit............
APPENDIX H — Toski’s Amended Complaint in
Case No. 87-1422-CIV-ATKINS in the United
States District Court for the Southern District
a Re ee ae
APPENDIX I — United States District Judge
Atkins’ August 20, 1987 Order on Motion
to Proceed Jn Forma Pauperis and on Appli-
cation for a Temporary Restraining Order
in Case No. 87-1422-CIV-ATKINS ..........
Page
(21)
Page
APPENDIX J — Eastern Airlines, Inc.’s March 9,
1989 Certificate of Commencement of Case
Pending in the United States Bankruptcy
Court in the Southern District of New
183a
VOOR . ose ccéean ses eee
la
APPENDIX A
[Filed MAR 9 1994]
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
Case No. 91-112-CIV-DAVIS
BRUCE RICHARD TOSKI,
Plaintiff,
VS.
WILLIAM J. McDONNELL, JEFFERSON H. HENRY &
KENDALL G. WILLIAMS,
Defendants.
ORDER DENYING MOTION TO
APPEAL IN FORMA PAUPERIS
BEFORE THE COURT is Plaintiff’s Motion to Proceed
on Appeal in Forma Pauperis. This Court granted Sum-
mary Judgment in the Defendants’ favor on January 31,
1994.
Appeal from a final judgment may only be taken if
such appeal is asserted in good faith. Fed. R. App. P.
24(a). A proposed in forma pauperis appeal is not
asserted in good faith if it is frivolous when viewed from
an objective standard. Coppedge v. United States, 369
U.S. 438, 445, 82 S.Ct. 917, 921, 82 L.Ed.2d 21 (1962).
This standard translates into a demonstration that reas-
2a
onable jurists may find the issues central to the appeal
debatable. Barefoot v. Estelle, 463 U.S. 880, 893 n.4.
Summary Judgment was granted in the Defendants’
favor largely out of failure by the Plaintiffs to exhaust
his administrative remedies under the Railway Labor
Act (““RLA’’). When a dispute arises, the RLA provides
for settlement through the contractually agreed upon
grievance procedures. 45 U.S.C. §152 First. The Plain-
tiffs had initially filed a grievance in relation to the acts
alleged in this suit, but voluntarily abandoned the claim.
W" "e the Plaintiff has submitted the required affidavit
in support of his Motion to Proceed on Appeal in Forma
Pauperis, there has been no demonstration that the issues
central to the appeal are debatable.
Accordingly, it is
ORDERED AND ADJUDGED that Plaintiff’s Motion
to Appeal in Forma Pauperis is DENIED.
3/9/94 /s/ Edward B. Davis
Edward B. Davis
United States District Judge
CC:
Bruce Toski, pro se
2361 S.W. 36 Terrace
Ft. Lauderdale, FL 33312-4291
Donald A. Blackwell
WALKER, ANANIA, BANDKLAYDER
& BLACKWELL
Suite 3300, International Place
100 S.E. Second Street
Miami, FL 33131
3a
APPENDIX B
FEDERAL RULE OF
APPELLATE PROCEDURE 28
I.0.P. — 6. Citation of Supplemental Authorities
[Where intervening decisions or new developments
should be brought to the court’s attention, counsel may
direct a letter to the clerk with citations and succinct
comment. See FRAP 28(j). Supplemental briefs may
not be filed. If a new case is not reported, copies should
be appended. The letter should be filed in four copies
with service on opposing counsel. |
[Amended effective April 1, 1994.]
4a
APPENDIX C
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CIVIL ACTION NO.: 91-0112 CIV-DAVIS
MAGISTRATE TURNOFF
BRUCE RICHARD TOSKI,
Plaintiff,
VS.
WILLIAM J. McDONNELL,
JEFF HENRY and KEN WILLIAMS,
Defendants.
e i
DEFENDANTS' MOTION FOR SUMMARY
FINAL JUDGMENT AND SUPPORTING
MEMORANDUM OF LAW
The Defendants, WILLIAM J. McDONNELL,
JEFF HENRY and KEN WILLIAMS (hereinafter
sometimes collectively referred to as "Defendants"), move
this Court, pursuant to Rule 56 of the Federal Rules of
Civil Procedure, for the entry of an Order granting
summary final judgment in their favor and against the
Plaintiff, BRUCE R. TOSKI (hereinafter "TOSKI"), on
the grounds that the pleadings, depositions, answers to
interrogatories, admissions and other undisputed record
evidence conclusively demonstrate that there is no genuine
issue of material fact with respect to any of his claims and
that Defendants are entitled to judgment as a matter of
5a
law. In support of their Motion, Defendants submit the
following Memorandum of Law:
STATEMENT OF UNDISPUTED FACTS
On or about June 21, 1976, Eastern Air Lines
(hereinafter "EAL") hired TOSKI to work as a shop
laborer at its Miami airport facility. See Deposition of
TOSKI, dated April 21, 1993 (hereinafter "TOSKI
Deposition"), at 42.' Five (5) years later, EAL promoted
TOSKI to the position of mechanic in its Ground Support
Equipment Auto Shop (hereinafter "GSE Shop"). Id. at 48.
TOSKI remained in the GSE Shop for approximately six
(6) weeks, when, as part of a reduction in its work force,
EAL laid TOSKI off and reassigned him to a stock clerk
position. Id, at 48. On April 24, 1984, EAL recalled
TOSKI to the GSE Shop as a line mechanic. Id, at 48 and
49.
Shortly thereafter and throughout the next 2 1/2
years, TOSKI's supervisors, which, at various times,
included each of the Defendants, repeatedly experienced
problems with TOSKI's job performance and attitude.
Those problems included: (1) TOSKI's propensity for
performing unnecessary and/or unauthorized work on
company vehicles; (2) his repeated violations of EAL's
rules and regulations; and (3) his failure to obey the
instructions and directives of EAL management personnel.
‘Pertinent excerpts from TOSKI's Deposition are
attached hereto as Composite Exhibit A. The remainder
of the deposition, which is quite voluminous, will be
made available for inspection by the Court if necessary.
ee
6a
See EAL's Letters of Discipline, Instruction, Reprimand
and/or Job Performance, dated November 27, 1984,
February 15, 1985, February 28, 1986, April 14, 1986,
September 8 and 11, 1986, and October 23 and 24, 1986,
copies of which are attached hereto as Composite Exhibit
B.
Then, on November 7, 1986, Defendants
McDONNELL and WILLIAMS determined that TOSKI
had falsified a claim for medical benefits in conjunction
with an incident that allegedly occurred between he and
Defendant McDONNELL on October 24, 1986. See
EAL's Letter of Termination, dated November 7, 1986, a
copy of which is attached hereto as Exhibit C. Defendants
McDONNELL and WILLIAMS, in turn, reported TOSKI's
actions to the appropriate EAL Labor Relations personnel
and, on November 7, 1986, EAL terminated TOSKI's
employment. Id. See also Deposition of Peter Blanco,
Labor Relations Representative for EAL, at 6 through 8,
pertinent excerpts from which are attached hereto as
Exhibit D. Five (5) days later, TOSKI filled out a
grievance form relating to his termination. See TOSKI
Deposition at 510 and 511. See also TOSKI's Appeal for
Investigation Form, dated November 12, 1986, a copy of
which is attached hereto as Exhibit E. Significantly,
however, TOSKI made a conscious and strategic decision
not to pursue or, in the alternative, to delay his pursuit of
that grievance before the System Board of Adjustment
(hereinafter "SBA"). See TOSKI Deposition at 511
through 515. As a result, the SBA never even considered,
7a
let alone issued a ruling on, that grievance. Id, at 515.’
STATEMENT OF PROCEEDINGS
Despite the fact that he had not exhausted his
administrative remedies, as required by the plain language
of the CBA and the applicable judicial and statutory
authorities, TOSKI filed suit against EAL, Defendants
WILLIAMS and McDONNELL and others, seeking
injunctive relief and damages for, among other things,
wrongful discharge. A copy of TOSKI's Complaint in that
action, styled Toski v. Lorenzo, et al., Case No. 87-1422-
CIV-ATKINS, is attached hereto as Exhibit F. Judge
Atkins, in turn, dismissed that Complaint based on his
findings that: (1) TOSKI had not "exhausted[ed] his
administrative remedies in pursuing his wrongful
discharge claim;" and (2) TOSKI's "claims under the
Railway Labor Act constitute ‘a minor dispute’. . . and,
[therefore,] are subject to the compulsory arbitration
procedures of [S]ection 153 [of the Act]." See Order on
Application for a Temporary Restraining Order, dated
August 19, 1987, a copy of which is attached hereto as
Exhibit G. Eighteen (18) months later, EAL filed a
Chapter 11 Bankruptcy Petition, which resulted in a stay
of TOSKI's actions against the Company. See EAL's
Articles 17 through 19 of the Collective
Bargaining Agreement between EAL and TOSKI's union,
the IAMAW, (hereinafter "the CBA") govern the filing
and resolution of such grievances . A copy of the CBA is
attached as Exhibit B to Defendants’ Memorandum of
Law in Support of their Motion to Dismiss or Strike.
8a
Certificate of Commencement of Case, dated March 9,
1989, a copy of which is attached hereto as Exhibit H.
Apparently frustrated at his inability to obtain relief
against his employer (i.e., EAL) and in a thinly veiled
attempt to circumvent the operation of the automatic stay,
TOSKI initiated this action against the Defendants,
individually, in state court. Defendants responded by filing
a comprehensive Motion to Dismiss or Strike the
Complaint and removed the case to this Court, based on
federal question jurisdiction. After hearing oral argument
on Defendants’ Motion, Magistrate Turnoff recommended
that the Court dismiss Counts I and VIII, which it did in an
Order dated November 15, 1992. Copies of the Court's
Order and Magistrate Turnoff's Report § and
Recommendation are attached hereto as Exhibits I and J,
respectively. However, now that discovery in this matter
is substantially complete, it is apparent from the
uncontroverted record that, for the reasons set forth herein,
the remaining Counts in TOSKI's Complaint also are
legally and factually deficient. Therefore, the Defendants
respectfully submit that they are entitled to judgment on
those claims as a matter of law.’
*It is axiomatic that, under Fed. R. Civ. P. 56,
summary judgment is proper if the pleadings, depositions,
answers to interrogatories and admissions on file, together
with the affidavits, if any, show that there is no genuine
issue as to any material fact. Celotex v, Catrett, 477 U.S.
317, 322 (1986). Moreover, the Supreme Court has made
it clear that a trial court must enter summary judgment if
a party fails to make a sufficient showing of an essential
element of the case as to which that party has the burden
9a
ARGUMENT
I. TOSKI'S CLAIM FOR RELIEF
UNDER THE RAILWAY LABOR
ACT, 45 U.S.C. §151 ET SEQ., IS
TIME-BARRED BY THE
APPLICABLE SIX (6) MONTH
STATUTE OF LIMITATIONS, _
The Railway Labor Act, 45 U.S.C. §151 et seq.
(hereinafter "RLA"), does not specify the time within
which an injured party must file claims under Section 152
of the Act. However, federal courts, relying on the
reasoning of the U.S. Supreme Court in DelCostello v.
International Brotherhood of Teamsters, 462 U.S. 151
(1983), have repeatedly borrowed and applied the six (6)
month limitations period found in Section 10(b) of the
National Labor Relations Act, 29 U.S.C. §160 (b), to a
variety of such claims. See, e.g., Robinson v, Pan Am.
World Airways, 777 F.2d 84 (2d Cir. 1985); Brock v.
of proof at trial. Id. at 323. The moving party is not
required to support its motion for summary judgment with
affidavits or other materials negating its oppouient's
claims. Id. at 322. Instead, it satisfies its initial burden
by pointing out that there is an absence of evidence to
support the non-moving party's case. Id, Under Rule
56(e), the non-moving party is then required to go beyond
the pleadings and, by its own affidavits, depositions,
answers to interrogatories and admissions, designate
specific facts showing that there is a genuine issue for
trial. Id. at 324.
10a
Republic Airlines, Inc., 776 F.2d 523 (Sth Cir. 1985). See
Brotherl i of I oe Bue A tchi
also
, 768 F.2d 914 (7th Cir. 1985)
(Section 10(b)'s six (6) month limitations period governs
action for breach of a collective bargaining agreement and
an alleged violation of section 2, First of the RLA).
Atkins vy. Zantop Int'l Airlines, 18 Av. Cas. (CCH),
{ 18,290 (E.D. Mich. August 28, 1984) (wherein the Court
applied Section 10(b)'s six (6) month limitations period in
dismissing a wrongful discharge claim under section 2,
Third and Fourth of the RLA).
In Count IV of his Complaint, TOSKI alleges that
Defendants violated 45 U.S.C. §152 (First, Second and
Third) by purportedly: (1) failing to "make and maintain"
the CBA; (2) failing to settle disputes in an expeditious
manner; (3) refusing to allow TOSKI access to shop
employees after his termination; and (4) attempting to
coerce and influence shop mechanics prior to his election
as shop steward. See TOSKI's Complaint at 21 and 22.
However, a review of the undisputed record conclusively
demonstrates that each of the Defendants’ alleged acts
and/or omissions occurred, if at all, well beyond six (6)
months prior to the filing of the Complaint on October 23,
1990, and, therefore, are time-barred.
It is undisputed, for example, that TOSKI was
elected Shop Steward on October 16, 1986. See TOSKI
Deposition at 181. Thus, by definition, Defendant
McDONNELL's alleged attempt to influence the vote in
that election must have occurred, if at all, before that date
or more than four (4) years prior to the filing of this
lawsuit. Similarly, TOSKI alleges and has admitted that
he last sought and was refused access to the EAL facility
in July of 1987. Id. at 528 and 529. Accordingly, to the
lla
extent that Defendants’ refusal to afford him access to the
property was actionable under the RLA, which Defendants
deny, that claim must have accrued, if at all, on or before
that date or more than three (3) years prior to the filing of
his Complaint in this action.
The same is true with respect to TOSKI's remaining
claims (i.e., that Defendants allegedly failed to settle
disputes in an expeditious manner and/or failed to "make
and maintain" the CBA), since those alleged failures must
have occurred, if at all, sometime prior to EAL's decision
to terminate TOSKI's employment on November 7, 1986 -
slightly less than four (4) years prior to the filing of this
action. In sum, none of the alleged acts or omissions of
the Defendants occurred, if at all, within six (6) months of
the filing of the Complaint in this action. Accordingly,
TOSKI's claims under the RLA are time-barred, as a
matter of law, and this Court should enter judgment on
them in favor of the Defendants.‘
‘Defendants also are entitled to summary judgment
on TOSKI's claims under Section i152 (Second and Third)
because he has not alleged, nor has he proffered any
evidence, that Defendants are "carriers" within the
meaning of the Act. See 45 U.S.C. §151 (First). See also
45 U.S.C. §181.
12a
Il. DEFENDANTS ALSO- ARE
ENTITLED TO JUDGMENT AS A
MATTER OF LAW ON TOSKI'S
CLAIMS UNDER THE RLA,
BECAUSE TOSKI DID NOT
EXHAUST HIS
ADMINISTRATIVE REMEDIES
PRIOR TO FILING SUIT.
It is settled law that a party seeking relief under the
RLA for claims involving the interpretation and
application of a collective bargaining agreement must
exhaust the gmevance and arbitration procedures
established by that agreement before filing suit. See, e.g.,
Andrews v, Louisville & Nashville R. Co,, 406 U.S. 320,
324-25 (1972); Le Boutillier v. Air Line Pilots Ass'n Int'l,
778 F.2d 883 (D.C. Cir. 1985) (affirming the dismissal of
a pilot's wrongful discharge action, based on his failure to
"invoke the contractual procedure for contesting his
discharge," notwithstanding conclusory allegations in
plaintiff's complaint that resort to those procedures would
have been futile). See also, Riddle v. Trans World
Alrtlines, Inc., 512 F. Supp. 75 (W.D. Mo. 1981) (wherein
the Court dismissed an employee's suit against his
employer for wrongful termination, based on the
employee's admitted failure to exhaust available
administrative remedies);
Inc., 490 F. Supp. 231 (D. Minn. 1980). Moreover, it is
equally well established that the failure to do so mandates
dismissal of the action for lack of subject matter
jurisdiction. Riddle, 512 F. Supp. at 80.
The CBA at issue in the instant case contained an
elaborate grievance procedure for the resolution of the
13a
employment related issues which form the basis for
TOSKI's Complaint. See Article Nos. 17 through 19 of
the CBA. Moreover, it is undisputed that TOSKI was
intimately familiar with and routinely availed himself of
that procedure in challenging the disciplinary actions of
his supervisors. See TOSKI Deposition at 103, 172
through 173 and 383. Significantly, however, the record
also demonstrates that although he completed the paper
work necessary to initiate the grievance process with
respect to his claim for wrongful discharge, TOSKI made
a conscious decision not to pursue or, alternatively, to
delay the pursuit of that claim before the SBA. Id. at 511.
As aresult, the SBA never considered, let alone issued a
ruling on that grievance. Id. at 515. TOSKI's failure to
exhaust his administrative remedies divests this Court of
jurisdiction to consider his claims for relief under the RLA
and entitles Defendants to the entry of a summary
judgment in their favor with respect to those claims.’
‘In fact, TOSKI is collaterally estopped from
relitigating the issue of whether he is entitled to pursue his
RLA based claims without first exhausting his
administrative remedies by Judge Atkins’ August 19, 1987
Order of Dismissal in Case No. 87-1422-CIV-ATKINS.
See Exhibit F (wherein Judge Atkins held that the Court
lacked jurisdiction to consider TOSKI's claims, because
rey not exhausted his administrative remedies). See
Blonder-T Lab. ] + are "Tl
Found, 402 U.S. 313 (1971); Hann v. Carson, 462 F.
Supp. 854, 864 (M.D. Fla. 1978).
l4a
lil. UNDER THE DOCTRINE OF
PREEMPTION, TOSKI'S FAILURE
TO EXHAUST HIS
ADMINISTRATIVE REMEDIES
AND/OR TO ASSERT HIS RLA
CLAIMS IN A TIMELY MANNER
ALSO ARE FATAL TO HIS
COMMON LAW TORT CLAIMS.
Apparently cognizant of the legal and procedural
deficiencies in his claims under the RLA (Count IV) and
the CBA (Count VI), TOSKI attempts to circumvent the
six (6) month statute of limitations and the dispositive
effect of his failure to exhaust his administrative remedies,
by couching his labor dispute with EAL and Defendants in
a variety of common law tort claims. What TOSKI fails
to recognize, of course, is that the RLA preempts those
claims, particularly where, as here, they involve "minor
disputes" and are based on "a matrix of facts [that] are
inextricably intertwined with the grievance machinery of
the collective bargaining agreement and the [RLA]."
Higgins v, Newhouse, 1990 U.S. App. Lexis 15772, 3 (6th
Cir. 1990)(cases cited therein), a copy of which is attached
hereto as Exhibit K. See also Exhibit F (in which Judge
Atkins found that the claims which TOSKI now seeks to
assert as tort actions constitute "‘minor disputes’ . . . and,
[therefore] are subject to the compulsory arbitration
procedures of section 153 [of the Act]"). Thus, TOSKI's
failures to exhaust his administrative remedies and/or to
assert his RLA claims in a timely manner also are fatal to
his tort claims. See Higgins, at p. 5 (wherein the Court,
citing the preemptive effect of the RLA, held that a flight
attendant's failure to exhaust her administrative remedies
15a
operated to bar her claims for libel, slander, assault and
battery, and interference with employment against
Northwest Airlines and three co-workers as a matter of
law).
IV. THIS COURT SHOULD ENTER
SUMMARY JUDGMENT _ IN
FAVOR OF DEFENDANTS ON
TOSKI'S CLAIM FOR
NEGLIGENT RETENTION,
BECAUSE EAL AND NOT
DEFENDANTS HENRY OR
WILLIAMS WAS McDONNELL'S
"EMPLOYER" UNDER FLORIDA
LAW.
In order to prevail on a claim for negligent
retention in Florida, a plaintiff must plead and prove that,
during the course of his employment, an employer failed
to investigate, discharge or reassign an employee, when he
knew or should have known of problem, which rendered
the employee unfit to perform his job. See, ¢.g., Garcia v.
Duffy, 492 So. 2d 435, 438-39 (Fla. 2d DCA 1986).
Thus, it is not surprising that Florida courts require
plaintiffs who seek relief on a theory of negligent retention
to name the employer of the allegedly culpable employee
as a defendant in the action. See, eg, Byrd v.
Richardson-Greenshield Secumities, Inc., 552 So. 2d 1099
(Fla. 1989). See also Bennett v. Godfather's Pizza, Inc.,
570 So. 2d 1351 (Fla. 3d DCA 1990).
In Count II of his Complaint, TOSKI alleges that
Defendants HENRY and WILLIAMS negligently retained
Defendant McDONNELL. However, the record is
l6a
completely devoid of any evidence, which, if believed,
would establish that HENRY or WILLIAMS was
Defendant McDONNELL's "employer," as required by
Florida law. For example, there is no evidence that
Defendant HENRY hired Defendant MCDONNELL or
that he had the authority to reassign or fire him. In fact, if
TOSKI is to be believed, Defendant HENRY was nothing
more than "a bottom of the totem pole [shop] foreman,"
who had at least two layers of management supervision
above him at virtually all times material to the Complaint.
See Deposition of TOSKI at 55 and 56.
The record is similarly devoid of any evidence that
Defendant WILLIAMS was Defendant MCDONNELL's
"employer" for any purpose. In fact, the undisputed
record establishes that Defendant WILLIAMS did not
have any involvement in the alleged acts or omissions that
gave rise to this dispute until November 3, 1986 (i.e., four
days prior to TOSKI's termination), when he assumed the
position of Manager in the GSE Shop. Id. at 482. More
importantly, there is no evidence to suggest that, during
that four day period, Defendant WILLIAMS acquired
knowledge which would have warranted Defendant
McDONNELL's dismissal or that he had the unilateral
authority to effectuate such a dismissal. Indeed, there is
no evidence that Defendant WILLIAMS even had the
authority to terminate TOSKI, a line mechanic, without
the approval of senior EAL management personnel. Jd. at
505.
Simply stated, there is no evidence that anyone
other than EAL was Defendant McDONNELL's
"employer" for purposes of assessing TOSKI's alleged
entitlement to damages for negligent retention.
Accordingly, TOSKI's failure to name EAL as a party
17a
Defendant defeats the claim for negligent retention in
Count II of the Complaint as a matter of law.
V. DEFENDANT WILLIAMS IS NOT
AN "EMPLOYER" WITHIN THE
MEANING OF §440.02, FLA.
STAT. (1989) AND, THEREFORE,
HE CANNOT BE HELD LIABLE
FOR WRONGFUL DISCHARGE,
UNDER §440.205, FLA. STAT.
(1987), AS A MATTER OF LAW,
In Count III of his Complaint, TOSKI seeks to
recover damages against Defendant WILLIAMS on a
theory of wrongful discharge. Specifically, TOSKI alleges
that Defendant WILLIAMS violated §440.205, Fla. Stat.
(1987) of Florida Worker's Compensation Law, which
provides, in pertinent part, that:
no employer shall discharge, threaten to
discharge, intimidate or coerce any
employee by reason of such employee's
: sng
claim compensation under the Workers’
Compensation Law.
Id. (emphasis added). See also Paragraph No. 101 of
TOSKI's Complaint at p. 19. However, a review of the
applicable statute and the undisputed record conclusively
demonstrates that TOSKI cannot prevail on a wrongful
discharge claim under Section 440.205 as a matter of law.
The legal and factual deficiencies in TOSKI's
wrongful discharge claim are twofold. First, TOSKI has
Pa
18a
not proffered any evidence that Defendant WILLIAMS
was an "employer", within the meaning of §440.02(13),
Fla. Stat. (1987), which defines "employer" for purposes
of the Act as:
the state and all political subdivisions
thereof, all public and quasi-public
corporations therein, every person carrying
on any employment, and the legal
representative of a deceased person or the
receiver of trustees of any person.
Id. Indeed, the undisputed record affirmatively
demonstrates that EAL and not Defendant WILLIAMS
was TOSKI's "employer" for purposes of the Act. There is
no dispute, for example, that EAL hired TOSKI or that it
directed his transfers from one position in the company to
another. Id, at 42. In addition, there is no question that
EAL was the issuer of TOSKI's paychecks. Id, at 497.
More importantly, despite his obvious reluctance to do so,
TOSKI ultimately conceded that it was "EAL with
[Defendant WILLIAMS] as a duly authorized agent, [that]
terminated [his] employment on November 7, 1986." Id.
at 500 (emphasis added).
In contrast, Defendant WILLIAMS bears none of
the indicia traditionally associated with an employer. In
fact, Defendant WILLIAMS was not even working at the
Miami facility when EAL hired TOSKI. See TOSKI
Deposition at 104. Moreover, TOSKI has admitted that he
did not have any dealings with Defendant WILLIAMS
before November 3, 1986 (1.e., four days prior to TOSKI's
termination), when Defendant WILLIAMS assumed the
___-_-_--— position of Manager in the GSE-Shop- i at p. 482. More —
19a
importantly, there is no evidence that Defendant
WILLIAMS had the authority to terminate TOSKI without
the approval of senior EAL management personnel. Id. at
505.
Additionally, TOSKI has not proffered any
evidence that he had a "valid claim for compensation" or
ever “attempt{ed] to claim compensation under the
Worker's Compensation Act," as required by the plain
language of the statute. Section 440.205 (emphasis
added). Instead, the undisputed record demonstrates that
the sole reason TOSKI even reported the purported injury
to EAL's First Aid Department on November 6, 1986 was
to document an alleged incident that had occurred between
himself and Defendant McDONNELL. See TOSKI
Deposition at 451. In the absence of such proof, Section
440.205 is, by its own terms, inapplicable. Accordingly,
this Court should enter Summary Judgment in favor of
Defendant WILLIAMS on Count III of the Complaint.°
°This Court also should enter judgment in favor of
Defendant WILLIAMS on the claim for attorneys’ fees in
Count III, since the basis for TOSKI's wrongful discharge
action is §440.205, Fla. Stat. (1987) and not the General
Labor Relations Act, §448.01, et seq., Fla. Stat. (1984).
See ¢.g., , 538 So. 2d 1328
(Fla. 2d DCA 1989) (holding that where, as in the instant
case, an employee's claim for damages arises under a
statute other than Florida's General Labor Relations Act,
the employee is not entitled to avail himself of Section
448.08 as a means of recovering the attorneys’ fees
~ “incurred in prosecuting the action). en a
20a
VI. DEFENDANTS ARE ENTITLED
TO SUMMARY JUDGMENT ON
COUNT V_ OF _~ TOSKI'S
COMPLAINT, BECAUSE
FLORIDA DOES NOT
RECOGNIZE AN — IMPLIED
COVENANT OF GOOD FAITH
AND FAIR DEALING IN A CLAIM
INVOLVING WRONGFUL
DISCHARGE.
Florida courts have steadfastly refused to recognize
a cause of action for breach of an alleged "duty of good
faith and fair dealing" where the basis of the plaintiff's
claim is wrongful discharge. See, e.g., Kelly v. Gill, 544
So. 2d 1162 (Fla. Sth DCA 1989). See also Muller v.
Stromberg Carlson Corp., 427 So. 2d 266 (Fla. 2d DCA
1983). In Kelly, for example, the plaintiff brought a
wrongful discharge action against his former employer.
The employer, in turn, successfully moved for summary
judgment on the wrongful termination claim. However,
the trial court granted summary judgment in favor of the
former employee on his claim for injunctive relief. Both
parties appealed.
The appellate court affirmed the tral court's
judgment against the former employee, but reversed the
judgment insofar as it awarded the employee injunctive
relief. In reaching its decision, the Court relied on the
well-established premise that, in the absence of a specific
Statute granting a property interest, a contract of
employment which is indefinite as to the term of
employment is terminable at the will of either party. Smith
az _ _y_Piezo Technology & Professional Administrators,-427 -
2la
So. 2d 182 (Fla. 1983); Gibbs v. H.L. Heinz Co., 536 So.
2d 370 (Fla. Sth DCA 1988); McConnell v. Eastern
Airlines, Inc., 499 So. 2d 68 (Fla. 3d DCA 1986).
In the instant case, TOSKI attempts to allege a
cause of action for breach of a "covenant of good faith and
fair dealing" in Count V of his Complaint. However, there
is no evidence to support the proposition that he had a
contract with EAL which was definite as to the term of
employment. On the contrary, the record evidence
establishes that EAL had the absolute right to terminate
TOSKL, particularly for cause. Moreover, TOSKI has not
alleged the existence of or directed Defendants to any
statute, which created a property interest in his
employment with EAL. Thus, there is no proof, which, if
believed, would allow TOSKI to maintain an action for
breach of an "implied covenant of good faith and fair
dealing" against Defendants. Therefore, this Court should
enter judgment in Defendants’ favor on Count V of the
Complaint as a matter of law.’
7Defendants also are entitled to judgment as a
matter of law on TOSKI's claim for breach of an "implied
covenant of good faith and fair dealing," because: (1)
such a covenant does not exist, as a matter of law,
between TOSKI and his co-employees, see, ¢.g., Smith
427 So. 2d at 184; see also McConnell, 499 So. 2d at 69;
and (2) the undisputed record establishes that EAL and
not Defendants was TOSKI's employer at all times
4nateriattothis-action- See Section V, supra.
22a
Vil. DEFENDANTS ARE ENTITLED
TO JUDGMENT AS A MATTER
OF LAW ON COUNT VI OF THE
COMPLAINT, BECAUSE THEY
ARE NOT~ PARTIES TO THE
AGREEMENT WHICH FORMS
THE BASIS FOR’ TOSKI'S
BREACH OF CONTRACT CLAIM,
Although Florida courts have never specifically
addressed the issue, courts in other jurisdictions have
consistently held that a plaintiff may not hold a defendant
accountable for the breach of a contract unless he pleads
and proves that the defendant was a py to the
agreement. See, e.g.,
Products, Co., 726 F. Supp. 1171, 1182 (S.D. ind 1989)
(summary judgment proper where it is apparent from the
face of the complaint that the defendant was not a party to
the distributorship agreement); Mellencamp v. Riva Music
Ltd., 698 F. Supp. 1154 (S.D.N.Y. 1988) (wherein the
court dismissed a songwriter's breach of contract claims
against two recording companies, who were not parties to
the disputed publishing agreements, notwithstanding the
fact that they "assisted" the other defendants in the
"administration" of those agreements); See also Kinion v.
Design Systems, Inc., 641 P.2d 472 (Mont. 1981).
In Count VI of his Complaint, TOSKI attempts to
state a cause of action for breach of contract against
Defendants. However, a cursory review of the allegations
in Count VI, as well as the plain language of the CBA that
forms the basis for TOSKI's claims, conclusively
demonstrates that Defendants are not parties to that
Agreement. See Paragraph Nos. 8 and 116 of TOSKI's
23a
Complaint at pp. 2 and 24, respectively. Instead, it is
apparent that the parties to that Agreement are EAL and
the LAMAW, neither of whom is a party Defendant in this
action. Id, Accordingly, TOSKI's claim for breach of
contract is fatally deficient and this Court should enter
judgment as a matter of law in favor of Defendants on
Count VI of the Complaint."
’it is, of course, axiomatic that, under Florida law, a
party may not recover punitive damages for breach of
contract, irrespective of the motive of the defendant, unless
he pleads and proves that the breach was attended by a
"separate and independent tort" which is, in itself,
sufficient to support such an award. See, ¢.g.. Lewis Vv.
Guthartz, 428 So. 2d 222 (Fla. 1982). See also Rolls v.
408 So. 2d 229 (Fla. 3d DCA 1981).
Since TOSKI has not alleged, nor can he prove, that, in
conjunction with the alleged breach, Defendants
committed a separate and independent tort which would
warrant the imposition of such damages, he not entitled to
recover punitive damages in Count VI and this Court also
should enter summary judgment in Defendants' favor as to
that claim. See Section XII, infra.
24a
Vill. THIS COURT SHOULD ENTER
SUMMARY JUDGMENT _IN
FAVOR OF DEFENDANTS
HENRY AND McDONNELL ON
TOSKI'S CLAIM THAT THEY
WRONGFULLY DESTROYED
EVIDENCE, BECAUSE TOSKI
CANNOT ESTABLISH ANY OF
THE ELEMENTS NECESSARY
TO MAINTAIN SUCH AN
ACTION UNDER FLORIDA LAW,
Florida courts recently recognized “negligent
destruction of evidence" as an independent cause of
action. See, ¢.g., Continental Ins, Co, v. Herman, 576
So. 2d 313 Fla 3d DCA 1991). See also Miller v.
Allstate Ins. Co., 573 So. 2d 24 (Fla. 3d DCA 1990).
However, these courts have made it clear that a plaintiff
may not maintain such an action unless he alleges and
proves each of the following elements:
(1) [the] existence of a potential civil action;
(2) a legal or contractual duty to preserve
evidence which is relevant to the potential
civil action; (3) [the] destruction of that
evidence; (4) significant impairment in the
ability to prove the lawsuit; (5) a causal
relationship between’ the evidence
destruction and the inability to prove the
lawsuit; [and] (6) damages.
Continental Ins, Co,, 576 So. 2d at 315 (emphasis added)
(wherein the court held that a plaintiff, who already had
25a
recovered substantial damages for injuries she sustained in
an automobile accident, notwithstanding the partial
disassembly and ultimate destruction of the subject
vehicle, did not have a cause of action for destruction of
evidence, because "she suffered no significant impairment
in [her] ability to prove the underlying lawsuit").
In Count VII of his Complaint, TOSKI alleges that
Defendants McDONNELL and HENRY failed to protect
a G.E.A.RS. (i.e., work order) relating to work that was
the subject of a grievance he filed with the SBA.
Significantly, however, the record is completely devoid of
evidence which, if believed, would establish any of the
elements necessary to make that alleged “failure to
protect" actionable. For example, TOSKI has not alleged,
let alone proffered evidence sufficient to establish the
existence of or the potential for a "civil action" or
"lawsuit" relating to the subject evidence. Instead, TOSKI
merely alleges that the purported evidence would have
benefited him in various grievance proceedings and/or
enhanced his “prospective bargaining advantage." See
Paragraph Nos. 127 and 128 of TOSKI's Complaint at p.
26. More importantly, TOSKI has not alleged or proffered
evidence that Defendants had a_ statutory and/or
contractual "duty to retain and protect" the subject
evidence. TOSKI also has not proffered any evidence that
Defendants HENRY or McDONNELL destroyed the
subject work order.” Finally, TOSKI does not allege, nor
%In fact, TOSKI has affirmatively acknowledged he
has no recollection of the records retention policy at EAL
with respect to such work orders and, therefore, has no
basis for disputing EAL's position that the subject work
26a
has he proffered proof that the Defendants’ purported
failure to discharge that duty resulted in any damages. In
sum, there is no evidence in the record, which, if believed,
would establish any of the elements necessary to maintain
an independent action for negligent destruction of
evidence. Accordingly, this Court should enter a judgment
in favor of Defendants HENRY and McDONNELL on
Count VII of the Complaint.
XII. THERE IS NO EVIDENCE THAT
DEFENDANTS ACTED WITH
THE DEGREE OF CULPABILITY
WHICH IS REQUIRED TO
SUPPORT A CONVICTION FOR
MANSLAUGHTER AND,
THEREFORE, TOSKI'S CLAIMS
FOR PUNITIVE DAMAGES ARE
INSUFFICIENT AS A MATTER OF
LAW.
It is settled law in Florida that mere allegations of
simple negligence, without evidentiary support, will not
support an award of punitive damages. See Winn &
Lovett Grocery Co. v. Archer, 171 So. 214 (Fla. 1936). In
fact, even allegations amounting to gross negligence,
without more, do not justify the imposition of punitive
damages. See White Constr. Co, v. DuPont, 455 So. 2d
1026 (Fla. 1984). Instead, the Florida Supreme Court has
order was discarded after six (6) months as part of its
routine business practices. See TOSKI Deposition at p.
152.
4
4
27a
made it clear that the degree of negligence necessary to
support an award of punitive damages is the same as that
which j icti
‘ . Id at 1028.
under the "culpable negligence” standard
See also Como Oil Co, v. O'Laughlin, 466 So. 2d 1061,
1062 (Fla. 1985); Ten Associates v. Brunson, 492 So. 2d
1149 (Fla. 3d DCA 1986). It is equally well-settled that
where the allegations of the complaint, even if taken as
true, would not satisfy this stringent standard, the
appropriate remedy is a motion to strike the claim. See,
e.g., Bradenton Mall Associates v. Hill, 508 So. 2d 538
(Fla. 2d DCA 1987).
Although TOSKI includes claims for punitive ~
damages in Counts I, Il, V and VI of his Complaint, he
has not proffered any evidence that Defendants engaged in
the type of conduct that Florida courts require to
substantiate such a claim. In fact, there is no evidence in
“the record which even remotely establishes the degree of
culpability on the part of the Defendants necessary to
maintain a claim for punitive damages under the White
standard. Accordingly, TOSKI has not stated a claim for
punitive damages against Defendants and, therefore, this
Court should strike any and all such claims from the
Complaint with prejudice.
28a
XIIl. TOSKI DOES NOT HAVE ANY
EVIDENCE THAT DEFENDANTS
WERE ENGAGED IN A
CONSPIRACY AND,
THEREFORE, DEFENDANTS
ARE ENTITLED TO JUDGMENT
AS A MATTER OF LAW ON
COUNT IX OF HIS COMPLAINT.
Florida courts have consistently held that a party
cannot prevail on a claim for civil conspiracy unless he
pleads and proves: (1) an agreement between two or more
persons to achieve an unlawful objective; (2) one or more
overt acts pursuant to the agreement; and (3) resulting
injury to the plaintiff. See Stringfellow v, Breidegam, 138
So. 2d 75, 76 (Fla. 3d DCA 1962). Moreover, it is equally
well-established that members of a single economic unit,
such as officers and/or personnel associated with any one
corporation, do not constitute the required combination of
separate economic groups or forces to support a cause of
action for the independent tort of conspiracy. See Bryant
, 397 F. Supp. 1045 (S.D.
Fla. 1984). See also
Pay Tel., 504 So. 2d 486 (Fla. Ist DCA 1987) (in a multi-
count complaint, the District Court of Appeal affirmed the
trial court's dismissal of plaintiff's complaint with respect
to civil conspiracy where there were no allegations that
corporate officers were acting under any independent
motivation, as required to state a conspiracy claim against
officers individually); Baker v. McDonald's Corp., 686
F. Supp. 1474 (S.D. Fla. 1987), aff'd, 865 F.2d 1272, (11th
Cir. 1988).
In Count [xX of his Complaint, TOSKI attempts, by
29a
way of conclusory allegations, to assert a claim for civil
conspiracy. Significantly, however, TOSKI has not
alleged, nor has he since proffered proof that there was an
agreement between Defendants MCDONNELL, HENRY
and WILLIAMS for any purpose. TOSKI also has not
proffered any evidence that Defendants performed an
unlawful act or a lawful act by unlawful means in
furtherance of that agreement. On the contrary, TOSKI
d sted | ate
the Defendants. See TOSKI Deposition at 570 through
572. In fact, aside from some unsupported speculation,
TOSKI does not have any proof that Defendants HENRY
and/or McDONNELL even participated in the decision to
terminate his employment. Id, at 502 through 504. The
complete absence of such proof is fatal to TOSKI's claim
for civil conspiracy. Accordingly, this Court should enter
summary judgment in favor of Defendants on Count IX of
the Complaint."°
ie oe
This Court also should enter summary judgment in
favor of Defendants on the claim for "attorneys' fees" in
Count [X and III of the Complaint, because: (1) TOSKI
has not alleged that a contractual or statutory basis exists
for such an award, as required by Florida law, see, ¢.g.,
, 37 So. 2d 160,
161 (Fla. 1948),
Fund, 489 So. 2d 869 (Fla. 3d DCA 1986); and (2) as a
pro se litigant, TOSKI has not paid, nor has he incurred
an obligation to pay, any "attorney's" fees in conjunction
with the prosecution of this action, see
Atlanta, 648 F.2d 986 (5th Cir. 1981) (where a prevailing
30a
CONCLUSION
For the foregoing reasons, Defendants, WILLIAM
J. McDONNELL, JEFF HENRY and KEN WILLIAMS,
respectfully request that this Court enter summary final
judgment in their favor and award any and all such further
relief to which they may be entitled.
plaintiff, who appeared pro se in employment
discrimination action, was not entitled to recover
attorney's fees), see also Winicki v. Mallard, 441 So. 2d
693 (Fla. Ist DCA 1983) (wherein the court held that a
pro se attorney in a civil rights action was not entitled to
attorneys’ fees under Florida law).
3la
1 HEREBY CERTIFY that at true and correct copy
of the above and foregoing was sent by regular mail to
Bruce Richard Toski, pro se, at 2361 S.W. 36 Terrace, Ft.
Lauderdale, Florida 33312, this day of August,
1993.
WALKER, ANANIA,
BANDKLAYDER & BLACKWELL
Attorneys for Defendants
Suite 3300, International Place
100 Southeast Second Street
Miami, Florida 33131
(305) 373-4900
BY:
Donald A. Blackwell
Florida Bar No. 370967
Kenneth S. Spiegelman
Florida Bar No. 894664
ip\toski\mem.2D
32a
APPENDIX D
UNITED STATED DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
Case No. 91-0112-CIV-DAVIS
Magistrate Judge TURNOFF
BRUCE RICHARD TOSKI,
Plaintiff,
WILLIAM J. MCDONNELL, JEFFERSON H. HENRY,
and KENDALL G. WILLIAMS,
Defendants.
PLAINTIFF’S RESPONSE TO
DEFENDANT’S MOTION FOR
SUMMARY FINAL JUDGMENT
The Plaintiff, BRUCE RICHARD TOSKI (hereinafter
Plaintiff”), pro-se / forma pauperis, hereby files his
response to the Defendants’, WILLIAM J. MCDONNELL,
JEFFERSON H. HENRY, and KENDALL G. WILLIAMS
(hereinafter collectively referred to as the “‘Defendants”’)
MOTION FOR SUMMARY FINAL JUDGMENT (here-
inafter referred to as ““Motion”’) and states as follows:
Throughout the Motion, defense council predictably
mis-quotes and/or cites out of context, statements made
during the Plaintiff’s three (3) day deposition. Defense
eit el en ate SAR A RGM AS A RRO FS
33a
council has done this several times in the past when quot-
ing cases and now is continuing this illicit practice with
the Plaintiff lengthy deposition transcript. Pursuant to
Rule 106 Federal Rules of Evidence, Plaintiff requests
the entry of an Order compelling the Defendants to file
complete copies of all deposition transcripts - which
they have had transcribed - with the Clerk of this Court.
Since Plaintiff is restricted to 10 pages he can not go
into detail, but for the record Plaintiff objects to the
Defendants’ entire “Statement of Undisputed Facts” and
asks that it be stricken from the record. Defense counsel
can not resist making prejudicial assertions and extrapola-
tions and inserting them between actual statements of
fact, e.g. the use of words “apparently frustrated, “‘thinly
veiled attempt to circumvent”, “comprehensive”, sub-
stantially complete”, “it is apparent from the uncontro-
verted record”, “legally and factually deficient”, and
finally the legal assumption that “they are entitled to
judgment on those claims as a matter of law.”’ Then
Defense counsel uses a single spaced footnote - more than
2” long - in order to squeeze more of their legal argument
into their “STATEMENT OF PROCEEDINGS” section.
Once again, defense counsel mis-interprets Judge Davis’s
Order of November 15, 1991! to mean that all of Count
I was dismissed. Count I was only dismissed insofar as a
section alleging a second battery by McDonnell which the
Court said was past the four (4) year statute of limita-
tions.
Finally, defense counsel misleads this Court into
believing that Judge Atkin’s ORDER (Def. Exh. ‘G’’)
refers to the complaint, which defense counsel attached
l Defense counsel erroneously state that Judge Davis’s
ORDER was entered on November 15, 1992. Jn fact the ORDER
was entered in 1991.
34a
as Exhibit “F”. Cursory examination will show that said
ORDER was entered almost two (2) years in advance of
the complaint!
MEMORANDUM OF LAW
I. PLAINTIFF’S CLAIM FOR RELIEF IN
COUNT IV — PARTIALLY BASED ON THE
RAILWAY LABOR ACT — IS NOT SUBJECT
TO A SIX (6) MONTH STATUTE OF LIMI-
TATIONS “BORROWED” FROM _ THE
NATIONAL LABOR RELATIONS ACT.
Defense counsel asserts that Count IV should be elimi-
nated because of its partial reliance on the RLA, that
since the RLA does not specifically proscribe a statute
of limitations, that this Court should “borrow” a six (6)
month limitation period found in the National Labor
Relations Act. The NLRB created by the NLRA had/has
no jurisdiction over the case at bar. This case arises from
circumstances surrounding the Plaintiff’s employment
under the Defendants while working at EAL. The rela-
tionship between the Plaintiff and the Defendants was
governed by the “AGREEMENT” See AGREEMENT,
Preamble, page 1. The Defendants, as agents of EAL,
were bound to comply with terms of the AGREEMENT.
Id. The AGREEMENT was “made and entered into in
“accordance with the provisions of the RLA”. Jd. The
RLA was established by Congress in 1926 and covers
employees in the airline and railroad industries. See
45 U.S.C. §151 et seq. The NLRA was passed in 1935
and employers subject to the RLA are specifically
excluded from the NLRA’s jurisdiction. See 29 U.S.C.
§ 182. Plaintiff’s suit is based largely on state claims and
was filed originally in state court. In fact reference to the
RLA is not even required to plead Count IV, Plaintiff
35a
simply added RLA law to show that federal law rein-
forces state law provisions and to obtain compensatory
fines specified in the RLA, if obtainable. In Plaintiff’s
nine (9) Count complaint the RLA is only referred to one
more time - in Court VI for BREACH OF CONTRACT -
which should also be decided based on state substantive
law. In Harper v. General Dynamics Corp., 117 LRRM
3197, (S.D. Cal. 1984), a suit for wrongful discharge and
breach of the covenant of good faith and fair dealing, the
court found that the mere existence of a collective bar-
gaining agreement and the plaintiff’s utilization of its
grievance procedure to contest his discharge, did not
confer exclusive federal jurisdiction under the Labor
Management Relations Act. State limitations periods
apply in suits which are unrelated to the duty of fair
representation See Monarch Long Beach Corp. v. Soft
Drink Workers Local 812, 762 F.2d 228 (2d Cir. 1985).
The major part of this action is based on state law and
thus a state statute of limitations should apply.
Del Costello v. International Brotherhood of Team-
sters, 462 U.S. 151 (1983), cited by defense counsel,
explores the limitations question in very thorough detail.
However, because the facts of Costello differ greatly from
the case sub-judice, the finding of the court in Costello
need not apply to the case herein. Where the state limita-
tions period does not conflict with federal policy and
prejudices neither employer nor employee, and especially
where the RLA has not enunciated any statute of limita-
tions, state law should be regarded as the rule of decision.
See 28 U.S.C. § 1652. Defense counsel has not advanced
even one national interest or policy that would be
advanced by the “borrowing” of the 6 month limitation
in this case. In fact, there is no tederal policy at stake.
In the case at bar - where the employer in question has
36a
ceased to exist and the Plaintiff has accepted his dis-
charge as final - no compelling reason remains to support
a short statute of limitations, which is usually advanced
in the hopes of ushering in labor peace.
Even if this Court enforces a six (6) month statute of
limitations, the tolling effected by Fla. Stat. 95.051 (g),
validates most if not all of Plaintiff’s pleadings. If this
court determines that Count IV is barred by a statute of
limitations then plaintiff would assert that the federal
question upon which defendants relied for removal has
been extinguished and hence this Court would no longer
be able to assert pendant (supplemental) subject matter
jurisdiction over this case and the plaintiff would respect-
fully request at that time that the case be remanded back
to state court.
II. PLAINTIFF HAS EXHAUSTED ALL AVAIL-
ABLE ADMINISTRATIVE REMEDIES
PRIOR TO THE FILING OF THE CASE SUB
JUDICE AND THEREFORE HIS CLAIMS
SHOULD BE ALLOWED TO PROCEED.
The Plaintiff properly filed and pursued a grievance
alleging discharge without cause. By operation of law, the
grievance process was rendered moot when EAL went
bankrupt. Notwithstanding the above, if an employee
accepts his discharge as final - as is the case herein - he is
not required to exhaust administrative remedies, and can
bring an action at law in the appropriate state court.
Walker v. Southern Railway Company, 87 S.Ct. 365
(1966); Accord Florida East Coast Railway Company v.
Hill, 233 So.2d 845 (3rd DCA Fla. 1970); See also Bel-
anger v. NY Central R. Co., 384 F.2d 35 (C.A. Mich.
1967). Defense counsel cited Andrews v. Louisville &
Nashville R. Co., 406 U.S. 320, 324-25 (1972) but that
37a
case is distinguishable in its facts. In Andrews the Court
cited the holding in Walker as proper under the circum-
stances. See Andrews at 325. In Walker railroad employ-
ees had to wait over 10 years - in some cases - for their
grievances to be heard by the National Railroad Adjust-
ment Board. This is analogous to the case at bar where
the grievance procedure became nonexistent upon EAL’s
bankruptcy filing.
The Illinois Supreme Court ruled that employees cov-
ered by a collective bargaining agreement need not
exhaust grievance procedures to file and maintain a tort
action for wrongful retaliatory discharge for filing a
Workers’ Compensation claim. State public policy against
retaliatory discharge of employees for filing claims under
Workers’ Compensation Act applies with equal force to
union employees who are covered by collective bargain-
ing contracts that contain specific grievance procedures
to ensure discharge from employment only for “just
cause”. It would be reasonable to immunize from puni-
tive damages an employer that unjustly discharges a
union employee, while allowing imposition of punitive
damages against an employer that unfairly terminates a
nonunion employee. Allowing tort action is not violative
of federal labor-law policy promoting arbitration, in view
of important public interest in protecting rights of work-
ers under the Act and in deterring unscrupulous employ-
ers from discharging employees, and lack of any percep-
tible effect such actions would have on use of arbitration.
Midgett v. Sackett-Chicago Inc.; Gonzalez v. Prestess
Engineering Corp., Nos. 59341 and 59350, October 19,
1984. Illinois Supreme Court. See also Kelsay v. Motorola
Inc. (1978), 74 Ill. 2d 172, 115 LRRM 4371.
38a
A. PLAINTIFF’S PREVIOUS APPLICATION
FOR A PERMANENT INJUNCTION AGAINST
EAL DOES NOT COLLATERALLY ESTOP
HIM FROM PURSUING THE CLAIMS
HEREIN.
Although the two suits have some facts and allegations
in common, the thrust of Plaintiff’s application for a per-
manent restraining order against EAL has no bearing on
the case at bar. EAL’s lockout of the IAM and subsequent
liquidation have rendered all but the damages section of
87-1422-CIV-ATKINS moot. Although the Defendants
were named in that application for TRO, they were never
properly served.
III. SINCE THE PLAINTIFF DID NOT FAIL TO
EXHAUST HIS ADMINISTRATIVE CLAIMS
AND/OR ASSERT HIS RLA CLAIMS IN A
TIMELY MANNER, ALL TORT CLAIMS
ADVANCED BY THE PLAINTIFF SHOULD
PREVAIL
The doctrine of preemption does not apply because
the Plaintiff has exhausted his administrative remedies
and has pleaded all claims in a timely manner. In Hig-
gens v. Newhouse, 914 F.2d 256, (6th Cir. 1990), cited
by defense counsel the Plaintiff, 1) never even filed a
grievance, and 2) the Defendant Northwest Airlines
was/is still in business - unlike EAL, thus Higgens is dis-
tinguishable on its facts.
—
39a
IV. DEFENDANTS WILLIAMS AND HENRY
ACTED AS MCDONNELL’S “EMPLOYER”
AT TIMES PERTINENT HEREIN AND THUS
WERE GUILTY OF NEGLIGENTLY RE7™..".N-
ING MCDONNELL AS A SUPERVISOR AT
EAL.
The definition of “employer” includes supervisory per-
sonnel such as the Defendants. 29 U.S.C. §152 states,
“The tern “employer” includes any person acting as an
agent of an employer, directly or indirectly . . .” See also
Alabama Highway Express, Inc. v. Local 612, Etc., 108
So.2d 350 (Ala. 1959) where the court held,
The National Labor Relations Board applies the
common-law “right of control’ test in determining
whether an individual is an independent contractor
or an employee under the Act. “Under this test, an
employer-employee relationship exists where the
person for whom the services are performed reserves
the right to control not only the end to be achieved
but also the means to be used in reaching such end.
The resolution of this question depends on the facts
of each case and no one factor is determinative.”
Oklahoma Trailer Convoy, Inc., 99 N.L.R.B. 1019.
Control is the critical factor; Williams as Manager had
control over Henry who was a General Foreman and
McDonnell who was a Foreman. Likewise Henry - as a
General Foreman - had control over McDonnell who was
a Foreman under Henry. Williams - even though asserts
he only met the Plaintiff four (4) days before terminating
him - was duly notified about McDonnell’s erratic behav-
ior, prior to terminating the Plaintiff. Contrary to the
assertions of defense counsel, depositions have evinced
that Williams had absolute authority to fire without the
consent of Labor Relations and/or upper management
at EAL.
40a
V. WILLIAMS ALSO ACTED AS AN “EMPLOY-
ER” FOR THE PLAINTIFF AT TIMES
PERTINENT HEREIN AND IS THUS LIABLE
FOR WRONGFUL DISCHARGE OF THE
PLAINTIFF UNDER FLA. STAT. §440.205
(1987)
Defendants’ claim that Williams - who served as a Mana-
ger - was not a person, “carrying on” employment under
§440.02(13) (sic)? Fla. Stat. (1987). The plain meaning
of this definition includes defendant Williams. As stated
in the previous paragraph, Williams had the right to fire
and/or discipline those employees underneath him which
included the Henry, McDonnell and the Plaintiff. Defense
counsel mis-quotes Plaintiff’s testimony at page 497. The
questions referred to are leading and argumentative; and
Plaintiff objects to the accuracy of the transcript.
Defense counsel’s argument that the Plaintiff does not
allege that he had a valid claim for compensation or ever
attempted to claim compensation under the Worker’s
Compensation Act, as required by the plain language of
the statute, is frivolous, the Plaintiff has pleaded the
essential facts in § 100 of his complaint. Plaintiff simply
attempted to comply with Fla. Stat. §440.185(1)
(1987), wherein an employee is expected to give notice
of his injury within thirty (30) days of its infliction. As a
result of filing said notice, however, Pliaintiff was termi-
nated by Defendant Williams.
Attorney’s fees: Defense counsel cited Munsey v. Gen-
eral Tel. Co., 538 So.2d 1328 (Fla. 2d DCA 1989) which
was a sex discrimination case. Munsey is hardly analogous
2 jeez, same mistake they made in their motion to dismiss. I
called it to their attention last time around . . . you think they
might have-corrected it by now.
&
‘ eh ee oe ee aes
4la
to the case at bar, which involves a conspiracy between
the Defendants to discharge the Plaintiff from EAL, pro-
tected by Fla. Stat. §448.045 (1987) and unpaid wages,
protected by Fla. Stat. §448.08 (1987); thus the basis,
at least in part, for Plaintiff’s wrongful discharge action
stems from the General Labor Relations Act §448.01, et.
seq., Fla. Stat. (1987). Recovery for attorneys fees is
properly allowed under this section.
VI. PLAINTIFF’S COUNT V FOR BREACH OF
IMPLIED COVENANT OF GOOD FAITH
AND FAIR DEALING IS RECOGNIZED
UNDER FLORIDA LAW — EVEN WHERE
THE BASIS OF THE CLAIM IS WRONGFUL
DISCHARGE
The cases cited by defense counsel, essentially, do not
support their argument that Florida does not recognize
an implied covenant of good faith and fair dealing in a
claim involving wrongful discharge — at leasst in the fact-
ual scenario presented herein by the Plaintiff. Defense
counsel’s reference to Kelly v. Gill, 544 So. 2d 1162
(Fla. 5th DCA 19839) is fatally flawed because the court
in Kelly found that the discharged plaintiff was ter-
minable at will and not subject to the protection of a
contract, such as the AGREEMENT in the instant case.
Muller v. Stromberg Carlson Corp., 427 So. 2d 266
(Fla. 2d DCA 1983), also cited, can similarly be dis-
missed, for the Muller court held, “Even though [plain-
tiff] claims he was hired as a ‘permanent’ employee, in
the absence of an agreement for a particular period of
employment his term of employment must be regarded
as indefinite and terminable at will.” Jd at 270.
Smith v. Piezo Technology & Professional Admints-
trators, 427 So. 2d 182 (Fla. 1983), cited by defense
42a
counsel, is crucial to this case — but not for the reason
advanced by defense counsel. Smith held,
[S] ection 440.205, Florida Statutes (1979), creates
a statutory cause of action for a wrongful discharge
in retaliation for an employee’s pursuit of a work-
er’s compensation claim and such action is not cog-
nizable before a deputy commissioner but rather is
cognizable in a court of competent jurisdiction. Jd
at 183
The other two cases cited Gibbs v. H.J. Heinz Co., 536
So. 2d 370 (Fla. 5th DCA 1980) and McConnell v. East-
ern Air Lines, Inc., 499 So. 2d 68 (Fla. 3d DCA 1986)
also deal with “at will” employment and thus are not
applicable to the case at bar. The existence of the
AGREEMENT and the fact that the Plaintiff worked for
EAL for over 10 years supports that proposition that the
Plaintiff could only be discharged for good cause. See
e.g. Article 15”E” of the AGREEMENT, “Any employee
hereunder discharged for cause shall lose all seniority
nights with Company. . .” See also, Appendix No. 1 of
the AGREEMENT, “The Company agrees not to lay off
any employee who has completed one (1) year with the
Company on the date of ratification.” See also, Appen-
dix No. 14 of the AGREEMENT wherein a Shop Stew-
ard — such as the Plaintiff — could not be discharged
without EAL and the IAM first conducting an investiga-
ion. Even if the Plaintiff was an at will employee his
discharge predicated upon activity or membership in
a union — would fall within one of the exceptions to the
absolute right to fire “at-will” doctrine. Cleary v. Amer-
ican Airlines, Inc., 168 Cal. Rptr. 722 (2nd DCA Cal.
1980) at 726, citing Glenn v. Clearman’s Golden Cock
Inn, 192 Cal.App.2d 793, 796, 13 Cal.Rptr. 769 (1961).
Indeed, “The concept of good faith and fair dealing was
first formulated by the California courts in insurance con-
43a
tracts. But it is clear that it has reference to all con-
tracts.” Cleary at 728. There is a “continuing trend
toward recognition by the courts and the Legislature of
certain implied contract rights to job security, necessary_
to ensure social stability in our society.” Jd at 729.
The Cleary court held, that “the longevity of the
employee’s service, together with the expressed policy
of the employer’, operate as a form of estoppel, preclud-
ing any discharge of such an employee by the employer
without good cause.”’ Jd.
Termination of employment after long periods of time,
without legal cause, after long years of employment
offends the implied-in-law covenant of good faith and
fair dealing contained in all contracts. See e.g. Flanigan
v. Prudential Federal Savings & Loan Ass’n, 122 LRRM
2597 (Mont. 1986) where a bank employee, who had
28 years of service, was awarded $94,170 in economic
damages, $100,000 for emotional distress and $1.3 mil-
lion in punitive damages.
VII. THE DEFENDANTS — AS PARTIES TO THE
“AGREEMENT” — HAVE BREACHED CON-
TRACTUAL REQUIREMENTS AS ASSERTED
IN COUNT IV OF PLAINTIFF’S COMPLANT.
The Defendants clearly fall under the definition of
“employer” as defined by U.S. Code and by Article 3(B)
of the AGREEMENT which states, “It is understood and
agreed that when this Agreement is accepted by the par-
ties and signed by their authorized representatives, it
will supersede any and all agreements.” The Defendants
SThat policy — similar to the AGREEMENT — enunciated
specific procedures for adjudicating employee disputes such as this
one.
44a
were authorized representatives/agents of EAL, and were
bound to comply with the terms of the Agreement, see
Preamble of Agreement.
It is plain that the defendants are parties to EAL-IAM
agreement. Plaintiff's complant clearly states the posi-
tions held by each defendant. See 44-6. These defend-
ants had an obligation in law and equity to uphold the
provisions of the Agreement. The Defendants were
bound to uphold the spirit and letter of the Agreement
to the same extent as was the Plaintiff serving in his
Capacity as union shop steward.
A. THE DEFENDANTS COMMITTED SEPAR-
ATE AND INDEPENDENT TORTS AND
THUS THE PLAINTIFF CAN RECOVER
PUNITIVE DAMAGES FOR DEFENDANTS’
BREACH OF THE “AGREEMENT” CON-
TRACT.
“There is authority in Florida to support recovery of
punitive damages in an action based on breach of con-
tract where the breach is ‘attended by some intentional
wrong, insult, abuse or gross negligence which amounts
to an independent tort’”’. Rolls v. Bliss & Nytéray, Inc.,
408 So. 2d 229, 237 (Fla. 3rd DCA 1981) citing Grif-
fith v. Shamrock Village, Inc., 94 So.2d 854, 858 (Fla.
1957); Nicholas v. Miami Burglar Alarm Co. Inc., 339
So.2d 175 (Fla. 1976). Plaintiff has alleged separate
and independent torts in Count I (Battery), Count
III (Wrongful Discharge), Count IV (Negligence per
se — Unfair Labor Practices), Count V (Breach of Implied
Covenant of Good Faith and Fair Dealing), Count VII
(Failure to protect evidence for Plaintiff’s Benefit),
Count VIII (Malicious Prosecution) and Count IX (Con-
spiracy).
45a
VIII. THE PLAINTIFF HAS ESTABLISHED ALL
NECESSARY ELEMENTS TO MAINTAIN
AN ACTION FOR “FAILURE TO PROTECT
EVIDENCE FOR PLAINTIFF’S BENEFIT”
UNDER FLORIDA LAW
The necessary elements as stated by defense counsel:
1) the arbitration concerning the written reprimands
surrounding work done by the Plaintiff on forklift
#4649, subsequent referral to said written reprimands
by McDonnell on 10/23/1986 and indirect reference to
these letters in Williams’ termination letter; 2) Defend-
ants’ contractual duty to supply and preserve the docu-
ments in question (GEARS for forklift #4649) is cov-
ered by Article 17 — Step 3(G) of the Agreement which
states, “Upon proper request to the company official
in charge, Union Representatives will be given copies
of relevant Company records pertaining to employees
covered hereunder when necessary for the processing
and investigation of grievances.’; 3) said GEARS were
under the dominion and control of the Defendants,
who “lost” them after refusing to let the Plaintiff copy
said records for preparation of his grievance; 4) & 5)
inability to counter and refut numerous lies advanced
by the Defendants — because of the Defendants’ refusal
to allow copying — significantly impaired the Plaintiff’s
case at arbitration — 6) this is evidenced by the Arbi-
trator’s negative findings in that case. Plaintiff’s ability
to substantiate harassment by Henry, at trial in the case
at bar, will be significantly impaired as a result of the
“disappearance” of the pertinent GEARS.
46a
IX. PLAINTIFF’S CLAIMS FOR PUNITIVE DAM-
- AGES:
Punitive damages are awarded to serve as a warning and
an example to deter others from similar misconduct. In
a retaliatory discharge action, punitive damages may be
awarded if the employer’s conduct was wanton, wilful, or |
malicious. McClung v. Marion County Comm'n, 360
S.E.2d 221 (W. Va. 1987) Punitive damages are award-
able where a breach of contract is accompanied by an
independent malicious or wanton tort. In Leggett v.
First Interstate Bank, 86 Or. App. 523, 739 P.2d 1083
(1987) punitive damages were held proper where there
was an invasion of privacy. Compare this to McDonnell’s
admitted Battery on the Plaintiff in the bathroom of the
GSE shop at EAL. Kelsay v. Motorola, Inc., 74 Ill. 2d
172 (1978) described a standard for punitive damages,
“It has long been established . . . that punitive damages
may be awarded when torts are committed with fraud,
actual malice, deliberate violence or oppression or when
the defendant acts willfully or with gross negligence as
to indicate wanton disregard of the rights of others. Jd
at 186. In Kelsay, the plaintiff’s action for wrongful dis-
charge was permitted where the plaintiff alleged that the
discharge was in retaliation for filing a workers’ compen-
sation claim. See also Motsch v. Pine Roofing Co., 178
Ill. App. 3rd 169 (1988). The court observed that the
retaliatory discharge “mocks the public policy of this
state.” Kelsay at 187.
X. CONSPIRACY:
Since the taking of the Plaintiff’s deposition, Plaintiff
has been able to contact several witnesses who have
agreed to testify at trial concerning the Defendants’ con-
spiracy to terminate the Plaintiff's employment at EAL.
47a
What the Plaintiff’s deposition testimony indicates is
that the Plaintiff has not uncovered, yet, any written
documentation, that specifically supports Plaintiff’s
conspiracy count. However, this is not necessary for the
conspiracy count to advance to the jury. A conspiracy
may be proved by circumstantial evidence. This is
evidence of one fact, or of a set of facts, from which the
existence of the fact to be determined may reasonably
be inferred. Dixon v. Gaso Pump & Burner Manuf.
Co., 183 Okla. 249, 80 P.2d 678 (1937). It involves,
in addition to the assertion of witnesses as to what they
have observed, a process of reasoning, or inference, by
which a conclusion is drawn. Plaintiff’s witness, Neil
Feger, has signed a statement in support of the Plain-
tiff’s conspiracy count. (Attached as Exhibit “A”’).
Thus there is sufficient evidence for this Court to go to
trial.
Stringfellow v. Bretidegam, 138 So.2d 75, 76 (Fla. 3rd
DCA 1962) is a two paragraph holding which hardly
supports the conspiracy guidelines asserted by defense
counsel. Where the complaint sought to imply a con-
spiracy from the discharge of the plaintiff who was
employed for an indefinite term, the court held that
such a discharge was not prima facie illegal, and stated
further that allegations purporting to state a cause of
action in conspiracy must be clear, positive and specific.
Id. :
There are two (2) exceptions to the limitation advanced
by defense counsel — that corporate agents (such as the
Defendants acting as supervisors) constitute one single
mind and are therefore legally incapable of conspiracy.
One is that the agents must be acting within the scope
of their employment. Baker v. McDonald’s Corp., 686
F. Supp 1474, 1479 (S.D. Fla. 1987), aff'd 865 F.2d
48a
1272, (11th Cir. 1988). The second is, if agents of one
corporation have a personal stake in the activity, apart
from that of the corporation, then they may be held to
have conspired among themselves. Buckner v. Lower
Florida Keys Hospital Dist., 403 So.2d 1025, 1029 (3rd
DCA Fla. 1981; cited by the defendants’ case of Bryant
Heating & A.C. v. Carrier Corp., 597 S. Supp. 1045,
1054 (S.D. Fla. 1984). Whether the various torts com-
mitted by the Defendants herein, fall within the above
two exceptions is a question for the jury. It is worth
noting, however, that no such limitation is mentioned
in Fla. Stat. 448.045 (1987). Neither American Credit
Card Tel. v. N.Y. Pay Tel., 504 So.2d 486 (Fla. lst DCA
1987) nor any of the other cases cited by defense counsel
deal specifically with Fla. Stat. 448.045. For the above
reasons Plaintiff respectfully asks that defense counsel’s
request for the striking of Count IX be denied.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy
of the foregoing was sent by first class mail this 12th
day of October, 1993, to: Defendants’ counsel, Walker
and Anania at 100 SE 2nd St., One International Place,
Suite 3300, Miami, FL. 33131-2150.
BY: /s/ Bruce Toski
Bruce Toski Plaintiff, pro-se / forma pauperis
2361 S.W. 36 Terrace, Fort Lauderdale, FL
33312-4291
~~ Tel: (305) 583-4191
49a
Exhibit “A”
Feger, Neil H.
15928 Westwind Circle
Sunrise, Florida 33326
October 12, 1993
TO WHOM IT MAY CONCERN:
I was elected Shop Steward in the Ground Service
Equipment shop after Bruce Toski was terminated by
Ken Williams. It is my opinion that — based on events
that I witnesses prior to Mr. Toski’s termination —
Williams, Henry and McDonnell conspired to terminate
Mr. Toski’s employment at EAL without just cause.
Immediately after replacing Mr. Toski as GSE Shop
Steward, the same three (3) individuals began a cam-
paign of harassment directed toward me.
Sincerely,
/s/ Neil H. Feger
Neil H. Feger
50a
APPENDIX E
UNITED STATED DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
Case No. 91-0112-CIV-DAVIS
Magistrate Judge TURNOFF
BRUCE RICHARD TOSKI,
Plaintiff,
WILLIAM J. MCDONNELL, JEFFERSON H. HENRY,
and KENDALL G. WILLIAMS,
Defendants.
PLAINTIFF’S OBJECTION TO MAGISTRATE
TURNOFF’S REPORT AND _ RECOMMENDATION
RE: DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT
The Plaintiff, BRUCE RICHARD TOSKI (hereinafter
“Plaintiff”’), pro-se/forma pauperis, hereby files his objec-
tion to United States District Magistrate Judge William
C. Turnoff’s Report and Recommendation, (hereinafter
“‘Report”), concerning the Defendants’, WILLIAM J.
MCDONNELL, JEFFERSON H. HENRY, and KEN-
DALL G. WILLIAMS (hereinafter collectively referred to
as the “Defendants’”) MOTION FOR SUMMARY JUDG-
MENT (hereinafter referred to as “Motion”) and states
as follows:
5la
FACTUAL AND PROCEDURAL BACKGROUND
Magistrate Judge Turnoff — in a footnote — starts out
by chastising the Plaintiff, by stating, “Plaintiff’s brief,
while reaching exactly ten pages, is printed in a typeface
so small that it strains the eye to read. This creative word
processing violates the spirit, if not the letter, of both the
Local Rules and Judge Davis’s Order.” (Footnote one (1)
of Magistrate Turnoff’s Report, page 1). The Plaintiff
has/had no intention of making his brief difficult for the
Court to read, thereby unsettling tempers. Plaintiff — as
a pro-se litigant — carefully considered the minimum
typeface allowable under the Court rules. At the time
Plaintiff considered 10 point type to be the minimum
allowed. Plaintiff subsequently has researched all the
available law and found no restriction other than a min-
imum line spacing of 1.5 for District Court. Using this
spacing and the 11 point, 10 pitch type specified in the
Florida and Federal appellate rules, Plaintiff’s brief still
came in at 10 pages.
Frankly, the Plaintiff is distressed that Magistrate
Turnoff appears to be biased against him. If, as a pro-se
litigant, the Plaintiff has not complied with all the writ-
ten and unwritten ways of this Court, then, of course the
Plaintiff is truly apologetic. However, when Magistrate
Turnoff takes the “Frank is a Weenie” situation —
wherein the Plaintiff admitted to “taking the PA micro-
phone and stating into the microphone “Frank is a
Weenie”! — and turns it into, “Plaintiff commandeered
a microphone in the shop office and yelled “Frank is a
weenie”’ over the public address system”. (emphasis
added). Plaintiff can only interpret this biased resusci-
‘As stated in the Defendants’ Exhibit “A” (the Transcript
to the three day deposition of the Plaintiff, page 173, line 19).
52a
tation to indicate a deep rooted bias on the part of Magis-
trate Turnoff. Second, Magistrate Turnoff — in footnote
three (3) — presumes that the “Frank is a Weenie” button
refers to Frank Lorenzo. Although this is possible, the
record is devoid of any indication as to which Frank?
individual — if any — this button refers to. Third, Magis-
trate Turnoff cites Nettles v. Wainwright 677 F.2d 404
(5th Cir. 1982) but fails to adopt its findings in his
report. Magistrate Turnoff — at page 10 of the Report —
states, that, “. . . the parties may serve and file written
objections with the Honorable Edward B. Davis, United
States District Judge, within ten (10) days after being
served with a copy of this Report and Recommendation.”
(emphasis added). Based on this wording and the fact
that the Plaintiff had already filed his answer/objections
to the Defendants’ Motion for Summary Judgment, the
Plaintiff was not inclined to file an objection to the
Report . . . until he read the Nettles case. Nettles held
that failure to file an objection to a Magistrate’s recom-
mendation would constitute a waiver of right to appeal
the district’s order adopting the Magistrate’s recommen-
dations. Jd. at 410. Incredible! Nettles qualified their
holding by precluding appellate review only when the
Magistrate informed parties in the report “that objec-
tions must be filed within tens days or further appeal is
waived. Jd at 408 citing United States v. Walters 638
F.2d 947, 950 (6th Cir. 1981). Nettles suggested that
Magistrates include the following language at the con-
clusion of their Reports:
2 Of course Frank Borman was the President of EAL prior to
Frank Lorenzo, and additionally there was a Frank Weiss who
worked as a mechanic in the GSE shop. Finally, a frankfurter is
often referred to as a weenie, and thus the button might not have
referred to a human being at all.
53a
Failure to file written objections to the proposed
findings and recommendations contained in this
report within ten days from the date of its service
shall bar an aggrieved party from attacking the
factual findings on appeal.
The above language was not incorporated into Magistrate
Turnoff’s Report.
OBJECTIONS TO THE REPORT
The crux of the Report hinges on the author’s state-
ment that the “. . . Plaintiff failed to pursue the grievance
procedure outlined by the collective bargaining agree-
ment. The failure to exhaust the administrative remedies
available to him prevents him from prevailing in this
forum” Report (pg. 6). The fatal flaw in the Report’s
conclusion is its total failure to address the U.S. Sup-
reme Court case of Walker v. Southern Railway Com-
pany, 385 U.S. 196, 87 S.Ct. 365 (1966); Accord Flor-
ida East Coast Railway Company v. Hill, 233 So.2d 845,
846 (3rd DCA Fla. 1970). The Court in Walker held
that an employee who accepts his discharge as final — as
the Plaintiff has done in the case herein — is not required
to exhaust any administrative remedies, and can bring
an action at law in the appropriate state court for money
damages if the state court recognizes such a claim.
Walker at 196, 365. Citing Moore v. Illinois Central
Railroad Co., 312 U.S. 630, 61 S.Ct. 754, 85 L.Ed. 1089
(1941); Slocum v. Delaware L. & W.R. Co., 339 U.S. 239,
244, 70 S.Ct. 577, 579, 94 L.Ed. 795; Transcontinental
& Western Air, Inc. v. Koppal, 345 U.S. 653, 73 S.Ct.
906, 97 L.Ed. 1325. Florida is such a state. See Allan
v. SWF Gulf Coast, Inc., 535 So.2d 638 (Fla.App. 1 Dist.
1988), where a plaintiff alleging retaliatory discharge
under Fla. Stat. 440.205 was held to have properly filed
54a
~
his suit in Circuit Court and said filing was not preempted
by federal law and the parties’ collective bargaining agree-
ment. See also Smith v. Piezo Technology & Professional
Administrators, 427 So.2d 182 (Fla. 1983); Southwest
Gulfcoast, Inc. v. Allan, 513 So.2d 219 (Fla. App. 1 Dist.
1987). “Florida does not require exhaustion of admin-
istrative remedies in suits of this kind. (wrongful dis-
charge) Quite the contrary, Florida adheres to the ‘elec-
tion of remedy’ theory. A discharged employee may
contest his discharge and pursue his administrative rem-
edy or he may accept his discharge as final, thereby
ceasing to be an employee, and sue for damages for
breach of contract”. Ferguson v. Seaboard Air Line
Railroad Company, 400 F.2d 473, 475 (Ct. App. 5th
1968).
Of equal importance is the fact that litigation com-
menced against Eastern Air Lines (EAL) is corollary, not
ancillary to litigation commenced against the Defendants.
Although they were aware of litigation between the
Plaintiff and EAL, the case at bar is the first instance
where the Plaintiff has sued the Defendant.
The Plaintiff does not agree — for several litigable
issues — that the Plaintiff “was subject to the collective
bargaining agreement in effect between the Union and
EAL.” Report at page 5. Several issues here are out-
side the realm of arbitration and the power of the arbi-
trator. Furthermore, Plaintiff never “voluntarily aban-
doned his grievance for strategic reasons”. Report at
page 5. This statement is patently incorrect. Nothing
in the record could possibly lead to such an erroneous
conclusion. Plaintiff invoked — properly and in a timely
manner — the contractual mechanism for dispute reso-
lution provided in the “Agreement”. EAL agreed —
without objection — to arbitrate (First) the letters which
55a
had been placed in the Plaintiff’s personnel file by the
Defendants, and (Second) to arbitrate the termination
grievance after conclusion of the first arbitration. That it
took one year and a half for the first arbitration to take
place was commonplace during the Lorenzo era. At the
conclusion of the first “letters” arbitration, the Plaintiff
filed a timely appeal for review of the arbitrator’s deci-
sion. That EAL filed for bankruptcy and stayed the
Plaintiff’s appeal was beyond the control of the Plaintiff.
In actuality, the dispute resolution mechanism of the
RLA was fully exhausted on March 4th, 1989 (about
one week prior to the bankruptcy filing) when EAL
locked out the IAM and the now famous STRIKE began.
See Judge Edward B. Davis’s well thought out decision
in Eastern Air Lines v. Air Line Pilots Ass’n Intern.,
744 F.Supp. 1140 (S.D. Fla. 1990), aff'd and remanded,
920 F.2d 722 (11th Cir. 1990), cert. denied 112 S.Ct.
278, 116 L.Ed.2d 229. The Plaintiff’s rights, under the
collective bargaining agreement (CBA) did not survive the
discontinuance of business and termination of operations.
see Plumbers Local 519 Health & Welfare Tr. v. Garcia,
677 F.Supp. 1554 (S.D. Fla. 1988). Since the RLA pro-
vides for compensation of the arbitrators by the Com-
pany (EAL) and the Union (IAM), no more System
Board arbitration hearings were held subsequent to EAL’s
bankruptcy filing.* Thus by operation of law the Plain-
tiff’s attempt to utilize the administrative remedy pro-
vided for under the Agreement and the RLA became a
51t goes without saying that if EAL ever complies with this
Court’s Order granting the Plaintiff’s Motion to Compel Production
of Documents, the Plaintiff will be able to provide documentation
to this Court supporting this contention. Several witnesses will
attest to this fact. I am in the process of trying to obtain verifica-
tion of same from the IAM.
56a
“dead end” and the Plaintiff was precluded from ever
arbitrating his grievance concerning Plaintiff's termina-
tion from EAL by Defendant Williams. Additionally, it
can be argued, that as of December 31st, 1987,* the
Agreement, ceased to exist, and was, from that date on,
subject to change under the RLA. If the CBA was no
longer in effect how could/can the RLA possibly pre-
empt it!?
The Doctrine of exhaustion of remedy under the col-
lective bargaining agreement and the RLA is subject to
a number of exceptions for a variety of situations in
which doctrinaire application of exhaustion mle would
defeat the overall purposes of federal labor relations
policy. Glover v. St. Louts-San Francisco Ry. Co., Alz.,
89 S.Ct. 548, 551, 393 U.S. 324, 21 L.Ed.2d 519 (1969).
Implicit in the statutory scheme is the ultimate right of
disputants to self-help.
Where is is clearly shown that the RLA is sc obviously
violated as to sacrifice or obliterate a right which Con-
gress has created to protect the interest of individuals or
the public, or when the suit is primarily for the redress
of a completed wrong or to prevent a wrong which will
result in irreparable injury to petitioner and aot involv-
ing the establishment of a guide for future relations
between carrier and its employees, or does so only inci-
dentally, a petitioner is not required to exhaust his
administrative remedies under the RLA before resort-
ing to the courts Central of Ga. Ry. Co. v. Culpepper,
76 S.E. 2d 482, 209 Ga. 844 (1953).
Everyone who joins a union does not give up his civil
rights. Andrews at 330. The body of law governing
*See page 73 of the Agreement.
Bil Se arcs la han 2 Uitiale ak Mb Seas BE thos
57a
the discharge of an employee who does not want or
seek reinstatement is not found in customs of the shop
or in the collective agreement. Jd at 329. The Railway
Labor Act does not bar courts from adjudicating final
discharge cases. Jd Citing Slocum v. Delaware, L. & W.
R. Co., 339 U.S. 239, 244, 70 S.Ct. 577, 580 (1950).
A common-law or statutory action for wrongful discharge
differs from any remedy which the Board has power to
provide, and does not involve questions of future rela-
tions between the railroad and its other employees. Jd
If a court, in handling such a case must consider some
provision of a collective bargaining agreement, its inter-
preation would of course have no binding effect on
future interpretations by the Board. Jd Finally, an
employee seeking damages for reinstatement is normally
entitled to a jury trial. Andrews at 329. Justice J. Doug-
las, in his dissent, continues, “The courthouse is the
forum for that litigant (one who accepts his discharge
as final) and I would never close its door to him, unless
the mandate of Congress was clear (in the RLA). Even
then I do not see how the Seventh Amendment could be
circumvented: ‘In Suits at common law, where the value
in controversy exceeds twenty dollars, the right of trial
by jury shall be preserved.’ ” Jd at 330. Further, “This
is a plain, ordinary, common-law suit not dependent on
any term or provision os a collective-bargaining agree-
ment. I cannot close the courthouse door to him. Under
the First Amendment, as applied to the States by the
Fourteenth, he is petitioning the Government ‘for redress
of grievances’ in the traditional manner of suitors at com-
mon law; and by the Seventh Amendment is entitled to
a jury trial.” Jd at 331. Plaintiff agrees with this argu-
ment and objects to the Report in its entirety, since
adoption of said report would “close the courthouse
door” to the Plaintiff and prevent him from partaking of
58a
the right to a jury trial guaranteed by the Seventh Amend-
ment.
The 6 month “borrowed” statute of limitations does
not apply. “When Congress creates a federal cause of
action but does not expressly provide an applicable stat-
ute of limitations, we assume that Congress intended the
courts to adopt the limitation period of an analogous
cause of action. Ordinarily, courts have drawn a rule
from state law.” Monarch Long Beach Corp. v. Soft
Drink Workers, 762 F.2d 228, 230 (Ct.App. 2nd 1985),
cert. den. 474 U.S. 1020, 106 S.C. 569 (1985) citing
Johnson v. Railway Express Agency, 421 US. 454,
462-65, 95 S.Ct. 1716, 1721-23, 44 L.Ed.2d 295 (1975),
UAW v. Hoosier Cardinal Corp., 383 U.S. 696, 703-04,
86 S.Ct. 1107, 1111-13, 16 L.Ed.2d 192 (1966). “Resort
to state law remains the norm for borrowing of limita-
tions periods”. Monarch at 762, quoting Del Costello,
462 U.S. at 171, 103 S.Ct. at 2994. See also Pruttt v.
Carpenters’ Local Union No. 225, 893 F.2d 1216 (11th
Cir. 1990).
Plaintiff does not concur that all pertinent issues
advanced in the case sub-judice are ‘“‘minor disputes”.
Further, Le Boutillier, advanced by Magistrate Turnoff,
is, 1) non binding on this Court, and 2) absolutely dis-
tinguishable on the facts. In Le Boutillier the plaintiff
conceded that the agency shop agreement between his
union — the Air Line Pilots Assoc. (ALPA) — and Trans
World Airlines (TWA), called for his discharge pursuant
to his delinquency in paying service charges to ALPA.
Id at 885. In fact, the TWA-ALPA agreement allowed
for the plaintiff to retain his employment during the
pendency of the protest procedure! Jd. The plaintiff's
conclusory assertion that he did not invoke the desig-
nated appeal procedure, “because it would have been
EE
Be Ae eA oh,
PS BES CPO Ps ee. P
59a
futile for him to do so” brought the following reaction
from the court,
“In sum, we find not even a wisp of tenable argu-
ment justifying LeBoutillier’s utter disregard of the
contractual procedure for resolving disputes of the
kind his case entails. Because there is in the record
no reasonable explanation or excuse for LeBoutil-
lier’s total bypass of the labor-management con-
tract’s dispute resolution system, the district court’s
decision granting summary judgment to TWA and
ALPA is Affirmed. Id.
Plaintiff respectfully requests:
1) Entry of an Order — under Evidence Rule 106 — dir-
ecting the Defendants to submit into the Court record, a
complete copy of any deposition transcripts, which they
have, at any time during the course of this case, directed
this Court’s attention.
2) Oral argument prior to any decision for summary judg-
ment by this Court.
3) Clarification: Does 11 point, 10 pitch type with 1.5
spacing comport with the minimum requirements of this
Court?
4)In lieu of oral argument, three weeks from the date
with which EAL complies — if ever — with this Courts’
Order compelling production of documents per the Plain-
tiff subpoena, to prepare a proper response to the
Defendants’ Motion for Summary Judgment and Magis-
trate Turnoff’s Report. This Objection, herein, is admit-
tedly haphazard, due to inability as a pro-se litigant to
properly procure, formulate and advance all available
counter-arguments in the time allowed . . . For example,
Plaintiff has simply not had enough time to delve into
the “minor” v. “major” dispute issue advanced by Magis-
60a
trate Turnoff. This complex issue, alone, is worth a
brief in itself. Also, time prevented the Plaintiff from
fully addressing section II of the Report.
Respectfully submitted,
BY: /s/ Bruce Toski
Bruce Toski
Plaintiff, pro se
2361 S.W. 36 Terrace
Fort Lauderdale, FL
33312-4291
Tel: (305) 583-4191
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of
the foregoing -was sent by first class mail this 23rd day of
November, 1993, to: Defendants’ counsel, Walker and
Anania at 100 SE 2nd St., One International Place, Suite
3300, Miami, FL. 33131-2150.
BY: /s/ Bruce Toski
nt A Aa 8 Rp Oe a i ltt
Oh la i i Ae inh, a
SS: 8d "
WEARS deca:
6la
APPENDIX F
UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
CASE NO. 94-4246
BRUCE RICHARD TOSKI,
Petitioner / Appellant,
Vv.
WILLIAM J. MCDONNELL,
JEFFERSON H. HENRY
and
KENDALL G. WILLIAMS,
Respondents / Appellees
INITIAL BRIEF
APPELLANT — BRUCE RICHARD TOSKI
DIRECT APPEAL FROM A FINAL ORDER
GRANTING SUMMARY JUDGMENT
IN A CIVIL CASE
BRUCE RICHARD TOSKI
2361 S.W. 36th TERRACE
FORT LAUDERDALE, FL 33312-4291
PHONE: (954) 583-4191
PETITIONER / PRO-SE
62a
CERTIFICATE OF INTERESTED PERSONS
Edward B. Davis
United States District Court
Southern District of Florida
300 N. Miami Avenue
Miami, FL 33128-7788
Bruce Richard Toski
Plaintiff - Pro-se
2361 S.W. 36th Terrace -
Fort Lauderdale, FL 33312-4291
Walker, Bandklayder & Blackwell
Defendants’ Law Firm
100 SE 2nd Street
One International Place, Suite 3300
Miami, FL. 33131-2144
/s/ Bruce Richard Toski
Bruce Richard Toski
Le ee eer
63a
STATEMENT REGARDING ORAL ARGUMENT
Remand seems entirely appropriate from the plain-
tiffs point of view. If the Court of Appeals has any
hesitation in doing so (remanding the instant case to the
District Court) then appellant requests court permission
to present oral argument at the earliest opportunity.
The Appellant is not an attorney and is handling this
appeal pro-se. Defense counsel has propounded so many
twisted and false arguments that only oral argument will
allow the plaintiff sufficient opportunity to straighten
them all out in the eyes of this court.
CERTIFICATE OF INTERESTED
STATEMENT REGARDING ORAL
TAREE Ge ATI eE Ie 66 6 6 Kd c dace cnweeee anes
STATEMENT REGARDING ADOPTION
STATEMENT OF JURISDICTION. ........2.c0c000.
SEAT EOSEINE COP TERM ERGO ck ccc e dcr esccscncses
STATEMENT OF THE CASE AND FACTS...........
SUMMARY OF THE ARGUMENT. .................
Ps ee ee ee
64a
TABLE OF CONTENTS
ey ee ee ee ee
pe 8 | ee ey ee Te TEPER ECCT C eC TC Eee
Soe ke Gy eer eee eee eer ee ee
WHETHER THE DISTRICT COURT ERRED
IN GRANTING THE DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT ...........
(1) Course of Proceedings and Disposition
Oe SO TE I 5 os oo ev oe ee eh sa se ees
(i) SECIS OF GUE POED oan soc che ci eee esins
Coe ge ee ee ee
I. THE DISTRICT COURT ERRED IN
FORMULATING AND APPLYING THE
LAW WHEN IT GRANTED SUMMARY
JUDGMENT, AND ASSERTED THAT
THE PLAINTIFF HAD FAILED TO
EXHAUST ADMINISTRATIVE REME-
DIES. PLAINTIFF HAS EXHAUSTED
ALL AVAILABLE ADMINISTRATIVE
REMEDIES, NOTWITHSTANDING THE
FACT THAT THE PLAINTIFF WAS
ee
65a
NOT REQUIRED TO AVAIL HIMSELF
OF, NOR EXHAUST, SAID ADMINIS-
TRATIVE REMEDIES IN THE FIRST
PLACE, PRIOR TO FILING A CIVIL
SUIT FOR TORTS COMMITTED BY
THE DEFENDANTS.......................
II. PLAINTIFF’S CLAIM FOR RELIEF IN
COUNT IV — PARTIALLY BASED ON
THE RAILWAY LABOR ACT — IS NOT
SUBJECT TO A SIX (6) MONTH STAT.
UTE OF LIMITATIONS “BORROWED”
PROM THE WLRA........................
III. THE FINDING OF THE DISTRICT
COURT THAT, “PLAINTIFF’S
CLAIMS ARE ALL RELATED TO THE
LETTERS OF REPRIMAND, PLAIN.
TIFF’S INTERACTIONS WITH HIS
SUPERVISORS, AND HIS EVENTUAL
DISMISSAL FROM HIS JOB’ IS
CLEARLY ERRONEOUS...................
IV. THE DISTRICT COURT ABUSED ITS
DISCRETION WHEN IT REFUSED
TO ALLOW THE PLAINTIFF, EVEN
ONE (1) OPPORTUNITY TO AMEND
HIS COMPLAINT.........................
V. ~THE DISTRICT COURT ABUSED ITS
DISCRETION WHEN IT REFUSED TO
RULE ON PLAINTIFF’S MOTIONS
TO PREVENT ANY REFERENCE
TO DEPOSITION TRANSCRIPTS............
VI. THE DISTRICT COURT ERRED IN
APPLICATION OF THE LAW WHEN
IT DENIED THE PLAINTIFF’S
66a
APPEAL FOR REVIEW OF MAGIS-
TRATE TURNOFF’S ORDER OF
AUGUST 30TH, 1993, WHICH
DENIED THE PLAINTIFF’S MOTION
TO QUASH NUMEROUS SUBPOE-
NAS WHICH WERE IMPROPERLY
SERVED BY THE DEFENDANTS
ON PLAINTIFF’S WITNESSES ..............
VII. THE DISTRICT COURT ABUSED ITS
DISCRETION WHEN IT IGNORED
THE DEFENDANTS’ REFUSAL TO
“COME CLEAN” ON THE SIMPLE
QUESTION WHETHER EASTERN
AIR LINES HAS INDEMNIFIED ANY
OF THEM (THE DEFENDANTS),
FOR LEGAL EXPENSES ARISING
FROM ACTIONS THEY TOOK WHILE
SUPERVISORS. FOR EAL TO PAY
THE DEFENDANTS LEGAL EX-
PENSES IN THE CASE SUB-JUDICE
WOULD CONFLICT WITH PLAIN-
TIFF’S CLAIMS IN THE EASTERN
AIR LINES’ CHAPTER 7 FILING............
VIII. THE DISTRICT COURT ABUSED ITS
DISCRETION WHEN IT REFUSED
TO ALLOW THE PLAINTIFF THE
OPPORTUNITY TO ADDRESS THE
COURT FOR ORAL ARGUMENT
ON THE DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT...............
IX. THE DISTRICT COURT ERRED IN
APPLYING THE LAW WHEN IT
DENIED, AS MOOT, THE PLAIN-
TIFF’S MOTION TO STRIKE THE
67a
DEFENDANTS’ MEMORANDUM OF
LAW IN OPPOSITION TO MAGIS-
TRATE TURNOFF’S REPORT AND
RECOMMENDATION .....................
X. THE DISTRICT COURT ERRED IN
APPLYING THE LAW WHEN IT DEN-
IED, AS MOOT, THE PLAINTIFF’S
REQUEST TO STRIKE THE DEFEND-
ANTS’ ENTIRE “STATEMENT OF
UNDISPUTED FACTS” IN THEIR
MOTION FOR SUMMARY JUDG-
ee fee es
TABLE OF AUTHORITIES
U.S. CONSTITUTION
ACTS OF CONGRESS
U.S. SUPREME COURT CASES
Allis-Chambers Cop. v. Lueck, 471 U.S. 21 l,
|
Andrews v. Louisville & Nashville R. Co., 406
EES
Del Costello, 462 U.S. at 171, 103 S.Ct. at
Ye eS. LE) ee
EAL v. Air Line Pilots Ass’n., 744 F.Supp.
1140 (S.D. Fla. 1990), aff'd and remanded,
920 F.2d 722 (11th Cir. 1990), cert.
denied 112 S.Ct. 278, 116 L.Ed.2d 229 ............
68a
Glover v. St. Louis Ry. Co., 89 S.Ct. 548,
$98 U.S. $24, 21 L.Ed.2d 519 (1969). .............
Johnson v. Railway Express, 421 U.S. 454,
95 S.Ct. 1716, 44 L.Ed.2d 295 (1975) .............
Lingle v. Norge, 408 U.S. 399, 108 S.Ct. 1877,
100 L.Ed.2d 410 (1988)... 2... cece cree cccccces
Monarch Long Beach Corp. v. Soft Drink Work-
ers, 762 F.2d 228 (Ct.App. 2nd 1985), cert.
den. 474 U.S. 1020, 106 S.Ct. 569 (1985) ..........
Moore v. Illinois Central Railroad Co., 312 U.S.
630, 61 S.Ct. 754, 85 L.Ed. 1089 (1941)...........
Slocum v. Delaware L. & W.R. Co., 339 U.S.
239, 244, 70 S.Ct. 577, 579, 94 L.Ed. 795..........
Transcontinental & Western Air, Inc. v. Koppal,
345 U.S. 653, 73 S.Ct. 906, 97 L.Ed.
UAW v. Hoosier Cardinal Corp., 383 U.S. 696,
86 S.Ct. 1107, 16 L.Ed. 26 192 (1966) ............5.
Walker v. Southern Railway Company, 385
U.S. 29G, G7 DG. DO CAs ooo ne ees andcaes
U.S. CODE
UR BE ods eran
Rule 32(a)(3)(E) FRCP (1996)............e0cee eee.
FEDERAL COURT OF APPEALS CASES
Carson v. Polley 689 F.2d 562 (CA5th, 1982) .........
In Hildebrand v. Honeywell, Inc. 622 F2d 179
(CASth, 1980)... 2c eens esse seesesencennescece
Mertens v. Hummell 587 F2d 862 (CA7th,
1O7E) oc. des vc hea CRN eee ON Rae een eR
69a
Pruitt v. Carpenters’ Local Union No. 225,
893 F.2d 1216 (11th Cir. coe stus ep oe Oe
FEDERAL RULES and DECISIONS
sean Lic sid oh... TE ee ae
Rule 106 of the Federal Rules of Evidence............
stesso. in «ngs REPRE OOP RCT en OTT
DISTRICT COURT CASES
Le Boutillier v. Air Line Pilots Int’l, 778 F.2d
883 (D.C. Cir. MN 6 4c Nay ee a ek nc eck.
Plumbers Local 519 Health & Welfare Tr. v.
Garcia, 677 F.Supp. 1554 (S.D. Fla.
HO Si oe ee eee eet Ol os oe vee kl
STATE SUPREME COURT CASES
Central of Ga. Ry. Co. v. Culpepper, 76 S.E.
2d 482, 209 Ga. 844 (1953).....................
Smith v. Piezo Technology & Professional
Administrators, 427 So.2d 182 (Fla.
inod RCE LE CTT ON ee ee
STATE COURT OF APPEALS CASES
Allan v. SWF Gulf Coast, Inc., 535 So.2d
638 (Fla.App. 1 Dist. WE ein SCA as oy ice ck.
Ferguson v. Seaboard Air Line Railroad Com-
pany, 400 F.2d 473, 475 (Ct. App. 5th
WE AND GG LG CUTS re
Florida East Coast Railway Company v. Hill,
233 So.2d 845, 846 (3rd DCA Fla. a
70a
Southwest Gulfcoast, Inc. v. Allan, 513 So.2d
219 (Fla. App. 1 Dist. 1987)... 2... ccc ecccescees
7la
STATEMENT REGARDING
ADOPTION OF RELATED BRIEFS
Appellant respectfully requests the adoption of the
petitioner’s briefs in Lingle, Walker and the respond-
ent’s brief in Andrews. Appellant has not been able
to obtain copies at this time, inasmuch as they do not
seem to be available on microfiche, CDROM, or on-line
services such as Lexis or Westlaw. Appellant will have to
obtain these briefs from original counsel for from the
Supreme Court’s clerk’s office. Appellant respectfully
requests 10 days to do so.
STATEMENT OF JURISDICTION
This is an appeal from a final order granting sum-
mary judgment in a civil case from the district court.
Jurisdiction lies under 28 U.S.C. §1291.
STATEMENT OF THE ISSUE
WHETHER THE DISTRICT ERRED
IN GRANTING THE DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT
72a
[1] STATEMENT OF THE CASE AND FACTS
(I) Course of Proceedings and Disposition in the Court
Below
Six (6) volumes of docket entries would be extremely
burdensome to relate and interpret. Major pertinent
docket entries follow: ... |
Plaintiff filed his complaint in Circuit Court on 10/23/
1990 (R. 1S-189b).! The defendants removed the instant
case to federal court on 1/16/91 (R. 1-1). Plaintiff’s com-
plaint survived the obligatory Motion to Dismiss filed
1/16/91 (R. 1-1). On 10/23/92 (R. 2-32) and again on
5/24/93 (R. 1S-187XI) the plaintiff filed a Motion for
Protective Order concerning burdensome deposition
schedules. The Motion also requested court adoption of
Rule 30(b)(2) FRCP (1993). On 05/24/93 the defendants’
filed a Motion for Permission to File Summary Final
Judgment with Memorandum of Law in Excess of Twenty
Pages (R. 2-43). Discovery had not [2] been completed
at that date and time.? On 6/10/93 the plaintiff filed a
1 Plaintiff will use the following convention for references to
the record: (R. 1-1-1) indicates a reference to Volume I of the rec-
ord, document number 1, page number 1. Volume 1 of the Ist
supplement of the record will be referred to as “1S”. The clerk of
the court’s only reference to the original complant filed in the cir-
cuit court is found on page 20 of the docket, wherein the defend-
ants’ filed copies of various pleadings filed in circuit court, which
the clerk collectively identified as docket entry #189. Addition-
ally the various documents which the plaintiff supplemented to the
record — on 11/29/95 — have been collectively designated as
docket entry #187 by the clerk. Thus, the complaint will be
found, hopefully, at (R. 1S-189b?-*).
20n 8/20/93 Judge Davis (R. 4-101) ordered all parties to
complete discovery by September 24th, 1993. A virtual impos-
sibility at the time in light of various refusals by Eastern Air Lines
(hereinafter EAL) and the defendants to comply with discovery
subpoenas.
73a
Motion for Hearing (R. 2-48) on critical issues such as
summary judgment and discovery roadblocks. On 6/11/93
Judge’ Davis denied (R. 2-49) leave for the defendants to
file their over length Motion for Summary Judgment. On
7/2/93 Magistrate Turnoff signed an Order which denied
plaintiff’s Motion for a Hearing (R. 2-48). On 7/21/93
the plaintiff filed a Motion (R. 3-61), in person, request-
ing an Ex-Parte Hearing concerning blatant discovery vio-
lations of the plaintiff's personnel file by Eastern Air
Lines and defense counsel. On 7/21/93 the plaintiff also
filed a Motion to Quash (R. 3-62) 25 subpoenas improp-
erly served by the defendants. On 7/27/93 Magistrate
Turnoff denied (R. 3-67) plaintiff’s application for an Ex-
Parte Hearing. On 7/29/93 the plaintiff filed (R. 3-69) a
Motion to Stay the Case and another Motion for a Hear-
ing. The defendants filed a second Motion for Summary
Judgment on 8/17/93 (R. 4-97). On 8/23/93 the plaintiff
filed (R. 4-104) a Motion for Leave to Amend and Sup-
plement his Complaint. On 8/26/93 Magistrate Turnoff
signed an Order (R. 4-114) which (a) deferred ruling on
plaintiff’s Motion to Stay the case, to Judge Davis; (b)
granted defendants’ Motion to Compel Production of
Documents (R. 3-73); and 3) denied plaintiff’s Motions
to Quash (subpoenas) (R. 3-72). On 9/15/93 plaintiff
requested (R. 5-136) additional time to respond to
defendants’ Motion for Summary Judgment. On 10/28/
93 (R. 6-168) Magistrate Turnoff recommended that
plaintiff’s Motion for Leave to [3] Amend and Supple-
ment the Complaint be denied. On 11/10/93 Magistrate
Turnoff recommended (R. 6-174) that the defendants’
Motion for Summary Judgment be granted. On 11/22/
93 the plaintiff filed (R. 6-175) Objections to Magistrate
Turnoff’s Report and Recommendation. On 12/03/93
the defendants filed their reply (R.-6-176) to the
plaintiff’s Objections. On 12/7/93 the plaintiff filed
a Motion to Strike (R. 6-177) Defendants’ Memor-
74a
andum of Law in Opposition to Plaintiff’s Objection
to Magistrate Tumoff’s Report and Recommenda-
tion. On 12/9/93 the defendants filed (R. 6-178) a
Memo Opposing Plaintiff’s Motion to Strike. On 2/1/94
Judge Davis signed an Order (R. 6-179) granting the
defendants’ Motion for Summary Judgment. On 2/25/94
the Plaintiff filed a Notice of Appeal (R. 6-180) in refer-
ence to the granting of the Motion for Summary Judg-
ment. On 4/20/94 the defendants’ filed a Motion (no
docket entry)? to Dismiss the plaintiff's appeal. On
4/28/94 the plaintiff filed (no docket entry) a Response
to Appellees’ Motion to Dismiss the Appeal and a Motion
for Oral Argument. On 12/27/94 the plaintiff filed his
First Notice (no docket entry) of Errors and Omissions in
the Record. On 1/3/95 the Court of Appeals granted (no
docket entry) the plaintiff’s Motion for Extension of
Time (construed as a motion to stay proceedings) and
directs appellant to file monthly status reports. On 5/11/
95 the District Court files an Order (no docket [4] entry)
in response to plaintiff’s Notice of Errors and Omissions
in the Record. On 11/25/95 the plaintiff filed a Motion
(R. 18-187) to Supplement the Record on Appeal. On
12/4/95 Judge Davis signs an Order (R. 18-188) grant-
ing plaintiff’s Motion to Supplement the Record. On
1/3/96 the defendants file a Notice of Compliance (R.
18-189) with Judge Davis’s 12/4/95 Order. On 4/4/96
the 11th Circuit Court of Appeals denies any further
extension of time for the plaintiff to amend and supple-
ment the record and orders plaintiff to file brief within
5 Plaintiff was only about halfway through correcting and
supplementing the record when ordered by the appellate court to
submit a brief. If given additional time these missing entries would
have been noted and appropriate motions to supplement the record
would have taken place. Plaintiff has included, what he believes to
be, a complete docket, in the appendix.
75a
10 days. On 4/15/96 the plaintiff/appellant submits his
brief to this court (no docket entry).
(ii) Statement of the Facts
Plaintiff began working at Eastern Air Lines (EAL) in
1976 and throughout his ten (10) years (1976-1986) of
service, plaintiff received many commendation letters,
However when plaintiff began working in the Ground
Service Equipment (hereinafter GSE) shop, plaintiff
became the subject of harassment; first by defendant
Henry, then defendant McDonnell and finally, by defen-
dant Williams. Said harassment by the defendants
increased exponentially after Frank Lorenzo took over
in 1986. In October of 1986 plaintiff was elected to the
position of Shop Steward in the auto-GSE shop. Approxi-
mately one week later, defendant McDonnell attacked
the plaintiff in the men’s bathroom while attempting to
serve plaintiff with but one more of McDonnell’s disci-
plinary letters which McDonnell was using to build a con-
structive discharge. Initially management apologized for
McDonnell’s horrendous attack. However, only one day
after plaintiff reported the attack by McDonnell to the
medical department, Williams terminated the plaintiff.
the termination letter made several references to the
attack by [5] McDonnell. Williams confiscated the plain-
tiff’s airport base pass and employee badge. Within one
week of said termination by the defendants, plaintiff
filed to have said termination heard by the System Board
of Appeals—an arbitration arena available at the time to
settle those types of matters. Before plaintiff was able to
bring the termination grievance to a conclusion, EAL—in
1989—filed for bankruptcy, and all grievances pending
before the System Board of Appeals were stayed and ren-
dered moot by operation of law. Subsequently, in 1990,
the plaintiff filed a complaint in state court against the
76a
three defendants who conspired to terminate his employ-
ment at EAL. In this nine (9) count complaint, plaintiff
sued defendant McDonnell for battery, defendants
McDonnell and Williams for failing to protect evidence,
defendant Williams for wrongful discharge, defendants
Henry and Williams for Negligent Retention (of McDon-
nell), and sued all three defendants collectively for Unfair
Labor Practices, Breach of Implied Covenant of Good
Faith and Fair Dealing, Breach of Contract, and Conspir-
acy. After having his case removed to the Federal Court
System simply because of one counts’ reference to the
Railway Labor Act, the plaintiff—in debt, alone and pro
se—successfully endured through a Motion to Dismiss and
several years of oppressive discovery by defense counsel.
More torts were committed by the defendants subse-
quent to the filing of the complaint. First, defendant
Williams—by confiscating the plaintiff’s airport base
pass—prevented the plaintiff—as a Shop Steward—from
representing the GSE employees who duly elected him.
The plain wording of the Railway Labor Act (RLA), 45
United States Code §152 (Third) (1986) states, ‘‘Repre-
sentatives .. . need not be persons in the employ of the
carrier . . .” Plaintiff [6] attempted to obtain a tempo-
rary restraining order (TRO) against Williams and EAL
but was unsuccessful. By the time the plaintiff had a
handle on the legal process (as a lone pro-se litigant), the
union had gone on strike and rendered the application
for a TRO unnecessary. Second, counsel for the defense
persuaded one of their court reporters to produce an affi-
davit (R. 3-58-ExhA-5) which contained several abso-
lutely false accusations and slanderous statements, con-
jured up purely to make the plaintiff appear offensive in
the eyes of the court. The same court reporter’s office
worked hand in hand with defense counsel to prevent
77a
easy and timely access to the numerous transcripts of
depositions that had taken place. Finally, while plaintiffs
subpoena was pending for production of documents at
EAL, plaintiff’s personnel file was given to counsel for
the defendants. Please note, not a copy but the original.
This, despite no subpoena ever being issued by the defen-
dants and despite the fact that one was pending which
was properly served by the plaintiff. In fact, when the
plaintiff appeared at EAL to view his personnel file it was
no-where to be found—despite adequate notice of appear-
ance to review same. Plaintiff requested a hearing on this
miscarriage, said hearing was denied.
Plaintiff plodded this long road until 1994, when, just
as the plaintiff was hoping to finally have his day in
court, Judge Davis suddenly granted Summary Final
Judgment to the Defendants and quashed Plaintiff’s
hopes for any timely? justice. Plaintiff filed a timely
appeal and attempted to continue the forma-pauperis
status granted by the District Court. For some reason
the District Court felt, all of a sudden, that the plaintiff
was not “indigent” and refused to allow plaintiff to con-
tinue in forma pauperis status on appeal. Plaintiff tried
to re-attain in forma [7] pauperis status with appeals to
the Court of Appeals and to the Supreme Court. Neither
appeal was fruitful. Plaintiff made two attempts to
amend and supplement the record before being ordered
to file his brief, which brings us to the present state of
affairs,
(ili) Standard of Review
The standard of review for the main issue presented in
this case is that the district court erred in formulating or
applying a rule of law. In several instances findings of
fact by the district court are clearly erroneous. In at least
one instance the district court abused its discretion.
78a
[8] SUMMARY OF THE ARGUMENT
Plaintiff has provided ample facts and law for a deter-
mination that trial court is the proper tribunal, not some
non-existent arbitration arena. The trial court’s logic is
absolutely inequitable. For if the plaintiff is not allowed
to seek a forum in state or federal court, then where does
the plaintiff’s remedy lie? There is no CBA or arbitration
tribunal, there has been none since EAL declared bank-
ruptcy in 1989. At all times pertinent herein, plaintiff has
accepted his discharge as final. The Supreme Court has
clearly indicated that under circumstances similar to
those of the case sub-judice, a plaintiff may elect to seek
redress in state circuit court or federal court. For the trial
court to allow this case to go on for several years and
then to grant summary judgment on the weak argument
of “failure to exhaust administrative remedies” is truly
unfathomable to the plaintiff.
[9] ARGUMENT
The District Court erred when it granted the defen-
dants’ motion for summary judgment. This court should
reverse and remand to the district court for further pro-
ceedings consistent with equity and justice.
I. THE DISTRICT COURT ERRED IN FORMU-
LATING AND APPLYING THE LAW WHEN
IT GRANTED SUMMARY JUDGMENT, AND
ASSERTED THAT THE PLAINTIFF HAD
FAILED TO EXHAUST ADMINISTRATIVE
REMEDIES. PLAINTIFF HAS EXHAUSTED
ALL AVAILABLE ADMINISTRATIVE REME-
DIES, NOTWITHSTANDING THE FACT THAT
THE PLAINTIFF WAS NOT REQUIRED TO
79a
=
AVAIL HIMSELF OF, NOR EXHAUST, SAID
ADMINISTRATIVE REMEDIES IN THE FIRST
PLACE, PRIOR TO FILING A CIVIL SUIT FOR
TORTS COMMITTED BY THE DEFENDANTS.
Resolution of the main issue here hinges on district
court Magistrate Turnoff’s statement that the “‘. . . Plain-
tiff’s failure to exhaust his remedies under the collective
bargaining agreement in effect at his termination operates
to bar his entire suit.” (R. 6-174-5). The fatal flaw in the
Report’s conclusion is its total failure to address relevant
U.S. Supreme Court decisions which impact directly on
the case sub-judice. With facts virtually identical to the
instant case, the petitioner in Lingle v. Norge, 408 U.S.
399, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988) notified
her boss that she had been injured in the course of her
employment and was subsequently terminated for filing
an allegedly false worker’s compensation claim. She filed
a grievance pursuant to a collective bargaining agreement
(hereinafter CBA). While said arbitration was proceeding,
petitioner filed a retaliatory discharge action in state
court, alleging that she had been discharged for exercising
her rights under worker’s compensation laws. Said [10]
case was removed to federal court for diversity reasons.
On a motion to dismiss, the trial court dismissed her
claim as pre-empted by the CBA process. The Court of
Appeals affirmed. A unanimous opinion from the
Supreme Court reversed the judgment of the Court of
Appeals. To resolve the conflict among the Circuits, the
Court made clear once and for all that, “. . . an applica-
tion of state law is pre-empted by [federal law] only if
such application requires the interpretation of a ccllec-
tive-bargaining agreement.” Jd at 413. The district court
in the instant case, like Lingle, was not, and will not be
required, to interpret a CBA in order to resolve the plain-
80a
tiff’s claim of retaliatory discharge for filing a claim of an
injury received while on the job. That the court may refer
to a CBA to determine damages would not automatically
invoke any pre-emption process. Lingle stated, “. . . asa
general proposition, a state-law claim may depend for its
resolution upon the interpretation of a collective bargain-
ing agreement and a separate state law analysis that does
not turn on the agreement. In such a case, federal law
would govern the interpretation of the agreement, but
the separate state-law analysis would not be thereby pre-
empted. As we said in Allis-Chambers Cop. v. Lueck, 471
U.S., at 211, 105 S.Ct., at 1911, ‘not every dispute...
tangentially involving a provision of a collective-bargain-
ing agreement, is pre-empted by [federal law]. . .’”
Lingle in footnote 12, page 413.
The trial court, likewise, never addressed the U.S.
Supreme Court case of Walker v. Southern Railway Com-
pany, 385 U.S. 196, 87 S.Ct. 365 (1966) advanced by
the plaintiff in his response (R. 5-162-3) to the defen-
dants’ motion for summary judgment (R. 4-97-7). The
Court in Walker held that an employee who accepts his
discharge as final—as the Plaintiff has done in [11] the
case herein—is not required to exhaust any administrative
remedies, and can bring an action at law in the appropri-
ate state court for money damages if the state court
recognizes such a claim Walker at 196, 365; Citing Moore
v. Illinois Central Railroad Co., 312 U.S. 630, 61 S.Ct.
754, 85 L.Ed. 1089 (1941); Slocum v. Delaware L. &
W.R. Co., 339 U.S. 239, 244, 70 S.Ct. 577, 579, 94 L.Ed.
795; Transcontinental & Western Air, Inc. v. Koppal, 345
U.S. 653, 73 S.Ct. 906, 97 L.Ed. 1325.
Florida ts a state that recognizes the right of an indivi-
dual to seek redress in state circuit court for alleged retalli-
atory discharge for filing a worker’s compensation claim.
8la
See Allan v. SWF Gulf Coast, Inc., 535 So.2d 638 (Fla.
App. 1 Dist. 1988), where a plaintiff alleging retaliatory
discharge under Fla. Stat. §440.205 was held to have
properly filed his suit in Circuit Court and said filing was
not preempted by federal law and the Parties’ collective
bargaining agreement. See also Smith v. Piezo Technology
& Professional Administrators, 427 So.2d 182 (Fla.
1983); Southwest Gulfcoast, Inc. v. Allan, 513 So.2d 219
(Fla. App. 1 Dist. 1987). “Regardless of what state law
may be as to exhaustion of remedies in other areas, Flor-
ida does not require exhaustion of administrative reme-
dies in suits of this kind. (wrongful discharge) Quite the
contrary, Florida adheres to the ‘election of remedy’
theory. A discharged employee may contest his discharge
and pursue his administrative remedy or he may accept
his discharge as final, thereby ceasing to be an employee,
and sue for damages for breach of contract”. Ferguson v.
Seaboard Air Line Railroad Company, 400 F.2d 473, 475
(Ct. App. 5th 1968). In accord with this line of reasoning
is Florida East Coast Railway Company v. Hill, 233 So.2d
[12] 845, 846 (3rd DCA Fila. 1970) which stated, “We
do not construe the Amendment (RLA) to be such as to
make the remedies available therein the exclusive remedy
for an allegedly wrongfully discharged employee to deter-
mine his rights. Jd at 846, Walker v. Southern Railway
Company, 385 U.S. 196, 87 S.Ct. 365, 17 L.Ed.2d 294.
The Plaintiff does nor agree—for several litigable issues
—that the Plaintiff “was subject to the collective bargain-
ing agreement in effect between the Union and EAL.”
(R. 6-174-5). Several issues here are outside the realm of
arbitration and the power of the arbitrator. Furthermore,
Plaintiff never “voluntarily abandoned his grievance for
strategic reasons” (R. 6-1 74-5). This statement is patently
incorrect. Nothing in the record could Possibly lead to
82a
such an erroneous conclusion. Plaintiff invoked—properly
and in a timely manner—the contractual mechanism for
dispute resolution provided in the “Agreement”. EAL
agreed—without objction—to arbitrate (First) the letters
which had been placed in the Plaintiff’s personnel file
by the Defendants, and (Second) to arbitrate the termi-
nation grievance after conclusion of the first arbitration.
That it took one year and a half for the first arbitration
to take place was commonplace during the Lorenzo era
and was absolutely beyond the plaintiff’s control. At the
conclusion of the first “letters”? arbitration, the Plaintiff
filed a timely appeal for review of the arbitrator’s deci-
sion. That EAL filed for bankruptcy and stayed the Plain-
tiff’s appeal was beyond the control of the Plaintiff. In
actuality, the dispute resolution mechanism of the RLA
was fully exhausted on March 4th, 1989 (about one week
prior to the bankruptcy filing) when EAL locked out the
IAM and the now famous STRIKE began. See Judge
Edward B. Davis’s well thought out [13] decision in East-
ern Atr Lines v. Air Line Pilots Ass’n Intern., 744 F.Supp.
1140 (S.D. Fla. 1990), aff’d and remanded, 920 F.2d 722
(11th Cir. 1990), cert. dented 112 S.Ct. 278, 116 L.Ed.2d
229. The Plaintiff’s nghts, under the collective bargaining
agreement (CBA) did not survive the discontinuance of
business and termination of operations. See Plumbers
Local 519 Health & Welfare Tr. v. Garcia, 677 F.Supp
1554 (S.D. Fla. 1988). Since the RLA provides for com-
pensation of the arbitrators by the Company (EAL) and
the Union (IAM), no more System Board arbitration
hearings were held subsequent to EAL’s bankruptcy fil-
ing.* Thus by operation of law the Plaintiff’s attempt to
Ir goes without saying that if EAL ever complies with this
Court’s Order granting the Plaintiff’s Motion to Compel Production
of Documents, the Plaintiff will be able to provide documentation
to this Court supporting this contention.
83a
utilize the administrative remedy provided for under the
Agreement and the RLA became a “dead end” and the
plaintiff was precluded from ever arbitrating his grievance
concerning plaintiff’s termination from EAL by Defen-
dant Williams. Additionally, it can be argued, that as of
December 31st, 1987,5 the Agreement, ceased to exist,
and was, from that date on, subject to change under the
RLA. If the CBA was no longer in effect how could/can
the RLA possibly preempt it!?
The Doctrine of exhaustion of remedy under the col-
lective bargaining agreement and the RLA is subject to a
number of exceptions for a variety of situations in which
doctrinaire application of exhaustion rule would defeat
the overall purposes of federal labor relations policy.
[14] Glover v. St. Louis-San Francisco Ry. Co., Ala., 89
S.Ct. 548, 551, 393 U.S. 324, 21 L.Ed.od 519 (1969).
Implicit in the statutory scheme is the ultimate right of
disputants to self-help.
Where it is clearly shown that the RLA is so obviously
violated as to sacrifice or obliterate a right which Con-
gress has created to protect the interest of individuals or
the public, or when the suit is primarily for the redress of
a completed wrong or to prevent a wrong which will
result in irreparable injury to petitioner and not involving
the establishment of a guide for future relations between
carrier and its employees, or does so only incidentally, a
petitioner is not required to exhaust his administrative
remedies under the RLA before resorting to the courts
Central of Ga. Ry. Co. v. Culpepper, 76 S.E. 2d 482, 209
Ga. 844 (1953).
>See page 73 of the Agreement between EAL and the IAM.
84a
Everyone who joins a union does not give up his civil
rights. Andrews v. Louisville & Nashville R. co., 406 U.S.
320, 330 (1972). The body of law governing the dis-
charge of an employee who does not want or seek rein-
statement is not found in customs of the shop or in the
collective agreement. Jd at 329. The Railway Labor Act
does not bar courts from adjudicating final discharge
cases. Id Citing Slocum v. Delaware, L. & W. R. Co., 339
U.S. 239, 244, 70 S.Ct. 577, 580 (1950). A common-law
or statutory action for wrongful discharge differs from
any remedy which the Board has power to provide, and
does not involve questions of future relations between
the railroad and its other employees. Jd. If a court, in
handling such a case must consider some provision of a
collective bargaining agreement, its interpretation would
of course have no binding effect on future interpretations
by the Board. Jd. Finally, an employee seeking damages
for reinstatement is normally entitled to a jury trial.
Andrews at 329. Justice J. [15] Douglas, in his dissent,
continues, “The courthouse is the forum for that litigant
(one who accepts his discharge as final) and I would never
close its door to him, unless the mandate of Congress was
clear (in the RLA). Even then I do not see how the Sev-
enth Amendment could be circumvented: ‘In Suits at
common law, where the value in controversy exceeds
twenty dollars, the right of trial by jury shall be pre-
served.’ ”’ Jd at 330. Further, “This is a plain, ordinary,
common-law suit not dependent on any term or provi-
sion of a collective-bargaining agreement. I cannot close
the courthouse door to him. Under the First Amend-
ment, as applied to the States by the Fourteenth, he is
petitioning the Government ‘for redress of grievances’
in the traditional manner of suitors at common law; and
by the Seventh Amendment is entitled to a jury trial.”
Id. at 331. Plaintiff agrees with this argument and objects
Se ee ee
85a
to Magistrate Turnoff’s Report in its entirety, since adop-
tion of said report would “close the courthouse door”
to the plaintiff and prevent him from partaking of the
right to a jury trial guaranteed by thé Seventh Amend-
ment.
Il. PLAINTIFF’S CLAIM FOR RELIEF IN COUNT
IV — PARTIALLY BASED ON THE RAILWAY
LABOR ACT — IS NOT SUBJECT TO.A SIX
(6) MONTH STATUTE OF LIMITATIONS
“BORROWED” FROM THE NLRA
The 6 month “borrowed” statute of limitations does
not apply. “When Congress creates a federal cause of
action but does not expressly provide an applicable sta-
tute of limitations, we assume that Congress intended the
courts to adopt the limitation period of an analogous
cause of action. Ordinarily, courts have drawn a rule from
state law.” Monarch Long Beach Corp. v. Soft Drink
Workers, 762 F.2d 228, 230 (Ct. App. 2nd 1985), cert.
den. 474 U.S. 1020, 106 S.C. 569 (1985) citing Johnson
v. Railway Express Agency, 421 U.S. 454, 462-65, 95
S.Ct. 1716, 1721- [16] 23, 44 L.Ed.2d 295 (1975), UAW
v. Hoosier Cardinal Corp., 383 U.S. 696, 703-04, 86 S.Ct.
1107, 1111-13, 16 L.Ed.2d 192 (1966). ‘Resort to state
law remains the norm for borrowing of limitations peri-
ods”. Monarch at 762, quoting Del Costello, 462 U.S. at
171, 103 S.Ct. at 2994 (1983). See also Pruitt v. Carpen-
ters’ Local Union No. 225, 893 F.2d 1216 (11th Cir.
1990).
Plaintiff does not concur that all pertinent issues ad-
vanced in the case sub-judice are “minor disputes”. Fur-
ther, Le Boutillier v. Air Line Pilots Int'l, 778 F.2d 883
(D.C. Cir. 1985), advanced by Magistrate Turnoff, is, 1)
non binding c * this Court, and 2) absolutely distinguish-
86a
able on the facts. In LeBoutillier the plaintiff conceded
that the agency shop agreement between his union—the
Air Line Pilots Assoc. (ALPA)—and Trans World Airlines
(TWA), called for his discharge pursuant to his delin-
quency in paying service charges to ALPA. /d at 885. In
fact, the TWA-ALPA agreement allowed for the plaintiff
to retain his employment during the pendency of the
protest procedure! Jd. The plaintiff’s conclusory asser-
tion that he did not invoke the designated appeal proce-
dure, “because it would have been futile for him to do
~so”’ brought the following reaction from the court,
“In sum, we find not even a wisp of tenable argu-
ment justifying LeBoutillier’s utter disregard of the
contractual procedure for resolving disputes of the
king his case entails. Because there is in the record
no reasonable explanation or excuse for LeBou-
tillier’s total bypass of the labor-management con-
tract’s dispute resolution system, the district court’s
decision granting summary judgment to TWA and
ALPA is Affirmed. Id.
[17]
III. THE FINDING OF THE DISTRICT COURT
THAT, “PLAINTIFF’S CLAIMS ARE ALL
RELATED TO THE LETTERS OF REPRI-
MAND, PLAINTIFF’S INTERACTIONS WITH
HIS SUPERVISORS, AND HIS EVENTUAL DIS-
MISSAL FROM HIS JOB” IS CLEARLY
ERRONEOUS
The three (3+) torts committed by the defendants sub-
sequent to the filing of the plaintiff’s complaint in Dade
County Circuit Court occurred separately from plaintiff’s
employment at EAL.
87a
'V. THE DISTRICT COURT ABUSED [Ts DIS-
CRETION WHEN IT REFUSED TO ALLOW
THE PLAINTIFF, EVEN ONE (1) OPPORTUN.
ITY TO AMEND HIS COMPLAINT
Fed. R. Civ. P. 15(b) specifically authorizes the court
to amend pleadings - as may be necessary - to cause them
to conform to the evidence. Fed. R. Civ. P. 15(a) states
that, “. . . leave shall be freely given when justice so re-
quires.” A trial court is obligated to act in this spirit, and
for two years, and where the plaintiff moved to amend
her complaint after the court designated pre-trial motion
cut off date, the court ordered that leave to amend be
granted.
In Carson v. Polley 689 F.2d 569 (CA5th, 1982) the
Court of Appeals overturned a £18] district court deci-
sion which denied the plaintiff leave to amend his com-
plaint. Carson was a civj] rights action for injuries result-
ing from the alleged use of excessive force during the
course of an arrest. The district court had denied leave to
file a third amended complaint to include a claim for neg-
ligent hiring and supervision on the part of the sheriff-
defendant. The court of appeals held this to be an abuse
88a
of discretion, since there was no evidence that the plain-
tiff could have framed this cause of action at the time of
the second amended complaint and thus there was no
evidence of unnecessary delay or bad faith, no pretrial
order had been entered nor a pretrial conference held at
the time of the request, and there would be no prejudice
to the defendant in allowing the claim.
On 10/28/1993 Magistrate Turnoff entered an Order
(R. 6-168) recommending that the plaintiff’s motion
for leave to amend his complaint be denied. Upon infor-
mation and belief Judge Davis never addressed the issue,
hence plaintiff was never given leave to amend.
V. THE DISTRICT COURT ABUSED ITS DISCRE-
TION WHEN IT REFUSED TO RULE ON
PLAINTIFF’S MOTIONS TO PREVENT ANY
REFERENCE TO DEPOSITION TRANSCRIPTS
Plaintiff was unduly prejudiced by defense counsel’s
constant reference to deposition transcripts that were:
- obtained illegally through improperly served subpoenas
- obtained at cattle call depositions where deponents
were unable to obtain or afford benefit of legal coun-
sel [19]
- obtained through misrepresentation and subterfuge
or utilized out of context.
On 5/24/1993 plaintiff filed a Motion for Formal Adop-
tion of F.R.C.P. 30(B)(2) (This important motion was
nowhere to be found on the original docket. Plaintiff
provided a copy in (R. 18-187) After failing to rule on
plaintiff’s motion to prevent any reference to deposition
transcripts, Magistrate Turnoff, in a footnote, (R. 6-174-
5,6) referred to statements made during the plaintiff's
deposition which lasted for more than three days. This,
89a
despite numerous objections which have been filed con-
cerning the impropriety of the manner in which the depo-
sitions were conducted, the false affidavit filed by defense
counsel concerning same, the refusal of the trial court to
allow the plaintiff sufficient time to examine these trans-
scripts, the refusal of defense counsel to provide the depon-
ent with copies of testimony which he was forced to submit
to, and the standing objection which has been raised to
the use of any of these transcripts based on Rule 30
FRCP quotes of testimony taken out of context. Plaintiff
submits that the record is incomplete as to the numerous
depositions taken by defense counsel and subsequently
mis-quoted in their briefs.
In 1993 Rule 30(b)(2) FRCP stated, “If a party shows
that when the party was served . .. the party was unable
through the exercise of diligence to obtain counsel to rep-
resent the party at the taking of the deposition, the depo-
sition may not be used against the party.” This Rule has
been moved over to the present Rule 32(a)(3)(E) FRCP
(1996) with minor modifications. Plaintiff requested
adoption of this Rule to level the playing field, to wit,
neither the plaintiff nor [20] his witnesses were able to
afford, or obtain through due diligence, the benefit of
counsel at the numerous depositions staged by defense
counsel. The District Court never ruled on plaintiff’s
motion.
Throughout their Motion for Summary Judgment,
defense council predictably mis-quoted and/or cited out
of context, statements made during the Plaintiff’s three
(3) day deposition. Defense did this several times in the
past when quoting cases and continued the illicit practice
with the plaintiff’s lengthy deposition transcript. Pursu-
ant to Rule 106 of the Federal Rules of Evidence, Plain-
tiff requested the entry of an Order compelling the Defen-
‘ 90a
dants to file complete copies of all deposition transcripts
- which they have had transcribed - with the Clerk of this
Court. This was never done. The defendants were never
ordered by the court to do so.
VI. THE DISTRICT COURT ERRED IN APPLICA-
TION OF THE LAW WHEN IT DENIED THE
PLAINTIFF’S APPEAL FOR REVIEW OF
MAGISTRATE TURNOFF’S ORDER OF AUG-
UST 30TH, 1993, WHICH DENIED THE PLAIN-
TIFF’S MOTION TO QUASH NUMEROUS SUB-
POENAS WHICH WERE IMPROPERLY
SERVED BY THE DEFENDANTS ON PLAIN-
TIFF’S WITNESSES
VII. THE DISTRICT COURT ABUSED ITS DISCRE-
TION WHEN IT IGNORED THE DEFENDANTS’
REFUSAL TO “COME CLEAN” ON THE
SIMPLE QUESTION WHETHER EASTERN
AIR LINES HAS INDEMNIFIED ANY OF
THEM (THE DEFENDANTS), FOR LEGAL
EXPENSES ARISING FROM ACTIONS THEY
TOOK WHILE SUPERVISORS. FOR EAL TO
PAY THE DEFENDANTS LEGAL EXPENSES
IN THE CASE SUBJUDICE WOULD CON-
FLICT WITH PLAINTIFF’S CLAIMS IN THE
EASTERN AIR LINES’ CHAPTER 7 FILING.
This is a severe conflict of interest on the part of
defense counsel and Eastern Air Lines. [21] For Eastern
to deny Plaintiff’s monetary claims in the bankruptcy
court, and at the same time squander said money away
to the defendants’ legal counsel is Kafkaesque to say the
least. Interestingly enough, during the defendants’ depo-
sition, defense counsel vehemently admonished the
defendants to NOT answer the simple question, “Did
9la
Easter Air Lines offer to indemnify you in deference to
your taking on the role of supervisor at Eastern Air
Lines.? This, of course, is a valid inquiry under Rule
26(a)(D) of the Federal Rules of Civil] Procedure.
VII. THE DISTRICT COURT ABUSED ITS DISCRE.
TION WHEN IT REFUSED TO ALLOW THE
PLAINTIFF THE OPPORTUNITY TO AD.
DRESS THE COURT FOR ORAL ARGUMENT
ON THE DEFENDANTS’ MOTION FOR SUM.
MARY JUDGMENT
IX. THE DISTRICT COURT ERRED IN APPLYING
THE LAW WHEN IT DENIED, AS MOOT, THE
PLAINTIFF’S MOTION TO STRIKE THE
DEFENDANTS’ MEMORANDUM OF LAW IN
OPPOSITION TO MAGISTRATE TURNOFF’S
REPORT AND RECOMMENDATION
X. THE DISTRICT COURT ERRED IN APPLYING
THE LAW WHEN IT DENIED, AS MOOT, THE
PLAINTIFF'S REQUEST TO STRIKE THE
DEFENDANTS’ ENTIRE “STATEMENT OF
UNDISPUTED FACTS” IN THEIR MOTION
FOR SUMMARY JUDGMENT
Respectfully submitted,
Bruce Toski - Plaintiff, pro se
2361 S.W. 36 Terrace
Fort Lauderdale, FL 33312-4299]
Tel: (305) 583-4191
92a
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of
the foregoing was sent by first class mail this 15th day of
April, 1995, to defendants’ counsel at the address listed
in the Certificate of Interested Persons.
BY: /s/ Bruce Richard Toski
tte ell
93a
APPENDIX G
UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
CASE NO: 94-4246
BRUCE RICHARD TOSKI,
Plaintiff/Appellant,
V.
WILLIAM J. McDONNELL, JEFFERSON H. HENRY
and KENDALL G. WILLIAMS,
Defendants/Appellees.
On Appeal from the United States District Court
for the Southern District of Florida
BRIEF OF APPELLEES, WILLIAM J.
McDONNELL, JEFFERSON H. HENRY
AND KENDALL G. WILLIAMS
Donald A. Blackwell
Richard F. O'Brien, III
Counsel of Record for Appellees
ANANIA, BANDKLAYDER & BLACKWELL
100 S.E. Second Street, Suite 3300
Miami, Florida 33131
Telephone: (305) 373-4900
Facsimile: (305) 373-6914
94a
CERTIFICATE OF INTERESTED PERSONS
AND CORPORATE DISCLOSURE STATEMENT
The undersigned counsel of record for Appellees,
WILLIAM J. McDONNELL, JEFFERSON H. HENRY
and KENDALL G. WILLIAMS (collectively "Appellees"),
certifies that the following is a complete list of the trial
judges, all attorneys, persons, associations of person,
firms, partnerships, or corporations that have an interest in
the outcome of this case, including subsidiaries,
conglomerates, affiliates and parent corporations, and
other identifiable legal entities related to a party:
1.
de ol dh ee
11.
Anania, Bandklayder & Blackwell, P.A.,
attorneys for Appellees;
Francis A. Anania, attorney for Appellees;
Donald A. Blackwell, attorney for
Appellees;
Edward B. Davis, United States District
Court Judge, Southern District of Florida;
Jefferson H. Henry, Defendant-Appellee;
M. Catherine Hite, attorney for Appellees;
William J. McDonnell, Defendant-Appellee;
Richard F. O'Brien, attorney for Appellees;
Bruce Richard Toski, Plaintiff-Appellant;
William C. Turnoff, United States District
Court Magistrate, Southern District of
Florida; and
Kendall G. Williams, Defendant-Appellee.
95a
CERTIFICATE OF TYPE SIZE AND FONT
In accordance with Rules 28-2(d) and 32-4( 1)(b) of
the Eleventh Circuit Rules, the A
has been prepared using 10 point
characters per inch.
ppellees' Answer Brief
type, Courier font, 10
96a
STATEMENT REGARDING ORAL ARGUMENT
Pursuant to Fed. R. App. P. 34(a)(1) and 11th
Cir.R. 34-3(b)(1), oral argument is not warranted because
this appeal is frivolous. See Motion to Dismiss the Appeal
filed herein on April 21, 1994 by Appellees, at pp. 2-4
(wherein Appellees note that United States District Court
Judges C. Clyde Atkins and Edward B. Davis and United
States Magistrate Judge William C. Tumoff have reviewed
the circumstances surrounding Eastern Airlines, Inc.'s
("EAL") discharge of Appellant, BRUCE RICHARD
TOSKI, Plaintiff below ("TOSKI"), in a light most
favorable to TOSKI, and repeatedly have held that
TOSKI's admitted failure to exhaust his administrative
remedies precludes his claims for relief in federal court, as
a matter of law). See also Judge Davis' March 9, 1994
Order Denying TOSKI's Motion to Appeal Jn Forma
Pauperis, Record Volume 6, Document 182, p. 2'(wherein
Judge Davis found, among other things, that "there has
been no demonstration that the issues central to this appeal
are debatable”).
Moreover, contrary to TOSKI's contention,” oral
' Hereinafter, all references to the original record and
specific pages therein will be abbreviated as "Vol. __,
~~.
> TOSKI's Brief at p. ii (wherein TOSKI argues that
"only oral argument will allow him a sufficient opportunity
97a
argument would not significantly assist the Court in
reaching its decision in this appeal, because the facts and
legal arguments involved are adequately framed and
presented by the parties’ appellate briefs, the parties’ briefs
regarding Appellees' Motion for Summary Final
Judgment,’ United States Magistrate Judge William C.
Turnoffs November 10, 1993 Report and
Recommendation,‘ the parties' responses theréto and
United States District Judge Edward B. Davis’ Order
Adopting Magistrate's Report and Recommendation and
to straighten [the legal argument of counsel for Appellees]
out in the eyes of this [C]Jourt").
* See Appellees’ August 17, 1993 Motion for
Summary Final Judgment and Supporting Memorandum of
Law, Vol. 4, Doc. 97; TOSKI's October 12, 1993
Response to Appellees’ Motion for Summary Final
Judgment, Vol. 5, Doc. 162: and Appellees' October yo
1993 Reply to TOSKI's Response to Appellees’ Motion for
Summary Judgment, Vol. 5, Doc. 164.
* Vol. 6, Doc. 174.
> See TOSKI's November 22, 1993 Objection to
Magistrate Tumoff's Report and Recommendation, Vol. 6,
Doc. 175 and Appellees' December 2, 1993 Memorandum
in Opposition to TOSKI's Objection to Magistrate
98a
Granting Summary Judgment.’ See Fed. R. App. P.
34(a)(3) and 11th Cir.R. 34-3(b)(3). Finally, but no less
significantly, allowing oral argument of this meritless
appeal, in order for TOSKI to parrot his tired and often
repeated arguments, would only serve to further drain
litigant and judicial resources and delay the resolution of
this case, which has become a ten year ordeal for
Appellees.’
® Vol. 6, Doc. 179.
-
TOSKI's underlying wrongful discharge claim
arises out of EAL's decision to terminate TOSKI's
employment on November 7, 1986.
eg
Certificate of Interested Persons and Corporate Disclosure
eee.
Certificate of Type SizeandFont.......00.00
te aa
Statement Regarding Adoption of Briefs
© eee ee as
I. Course of Proceedings and Dispositions
inthe CourtBelow.......000000
II. Statement of the ee
100a
Ill. Statement of the Standard of Review
Summary of the Argument ............00cccceees
Argument and Citations of Authority ..............
I.
II.
Il.
The district court properly entered summary
judgment in Appellees' favor, because there is no
genuine issue as to any material fact that TOSKI
failed to exaust the administrative remedies
Pew ree ree pe re
This Court should affirm the district court's entry of
summary judgment in Appellees' favor on TOSKI's
state law claims, because: (1) TOSKI has not
challenged the district court's ruling that those
claims are preempted by the RLA; and (2) the three
torts that TOSKI claims are not preempted are not
fg | ee ee oe arene
There are numerous and substantial other grounds
upon which this Court properly could affirm the
district court's entry of a summary final judgment
in Appellees’ favor, all of which were asserted in
Appellees' Motion for Summary Final Judgment .
A. _ The applicable six month statute of
limitations bars TOSKI's claim for
relet wager te RLA .,..........55:.
10la
B. Appellees also are entitled to
summary judgment on TOSKI's
claim for negligent retention,
because EAL and not Appellees
HENRY or WILLIAMS was
McDONNELL's "employer" under
Si eincigen nd ee ee ae
i Appellees are entitled to summary
judgment on Count III of TOSKI's
Complaint, —_ because Appellee
WILLIAMS is not an "employer"
within the meaning of § 440.02, Fla.
Stat. (1989) and, therefore, he cannot
be held liable for wrongful
discharge, under § 440.205, Fla. Stat.
(1987), asa matter oflaw.........
D. Appellees are entitled to summary
judgment on Count V of TOSKI's
Complaint, because Florida does not
recognize an implied covenant of
good faith and fair dealing in a claim
involving wrongful discharge..........
102a
E. Appellees are entitled to summary
judgment on Count VI of TOSKI's
Complaint, because they are not
parties to the CBA, which forms the
basis for TOSKI's breach of contract
GE osc we ee eee ees
F. Appellees HENRY and
McDONNELL are entitled to
summary judgment on TOSKI's
claim that they wrongfully destroyed
evidence, because TOSKI has not
established any of the elements
necessary to maintain such an action
Sg) eee
G. There is no evidence that Appellees
acted with the degree of culpability
which is required to support a
conviction for manslaughter and,
therefore, TOSKI's claims for
punitive damages are insufficient as
tg 3 Be rn a
H. — There is no evidence in the record
that Appellees were engaged in a
conspiracy and, therefore, Appellees
are entitled to judgment, as a matter
of law, on Count [IX of TOSKI's
Ree AO rr ee
IV.
VI.
VII.
103a
Magistrate Judge Turnoff did not abuse his
discretion in recommending that the district court
deny TOSKI's August 23, 1993 Motion for Leave
to Amend and Supplement [his] Complaint ....
The district court did not refuse to rule on TOSKI's
"Motion for Formal Adoption of FRCP.
30(b)(2)," because TOSK] did not file it with the
district court. Moreover, the district court did not
refuse "to adopt" Fed, R. Civ. P. 30(b)(2)(1993),
which does not afford the relief that TOSK]
requested inhisMotion ................
TOSKI did not move the district court to overrule
Appellees' objection to deposition questions and,
therefore, he did not preserve the issue for
appellate review. Furthermore, TOSKI has not
shown any basis or even argued that the discovery
at issue was relevant to any issue inthe case .._
The remaining issues raised in TOSKI's Brief are
are ect a
104a
CASES
Abramson vy, Gonzalez,
ee Yi i) © OR. + | Se
Adams vy. Gould, Inc.,
739 F206 O50 GECe. 1988) 2... ci cee cece
567 F. Supp. 66 (S.D. Tex. 1963) .........cesceees
, ' “redit Card Tel. v. New York Pay Tel
504 So. 2d 486 (Fla. Ist DCA 1987) ...............
-
Anderson v, Liberty Lobby, Inc.
OT ee ee ee ea
Andrews vy, Louisville & Nashville Ry, Co.
Soe a PT Fen ae eas Seuss eee ye
sins v2 int'l Aitlines.
18 Av. Cas. (CCH), § 18,290 (E.D. Mich. 1984) ......
Baker v. McDonald's Corp.,
686 F. Supp. 1474 (S.D. Fla. 1987),
aff'd, 865 F.2d 1272 (11th Cir. 1988),
cert, denied, 493 U.S. $12 (1989) .................
Bennett v. Godfather's Pizza, Inc.,
570 So. 2d 1351 (Fla. 3d DCA 1990) ..............
105a
959 F.2d 1558 (11th Cir. 1992)
ar me ME Ae er gl enty Sao
908 So. 2d 538 (Fla. 24DCA 1987)...
76 F.2d 523 (Sth Cir. 1985)...
706 F.2d 914 (7th Cir. 1985).......0.
NS ith ba a CO Te, a a ae
Ft ae ee i Ws ges ae te ne ie
106a
378 So. 2d 20 (Fla. 3d DCA),
cert. denied, 388 So. 2d 1113 (Fla. 1980) ...........
Cofield v, City of Atlanta,
ie le | eee ere rrrcrrs
'
- si C y'Laushli
466 So. 2d 1061 (Fla. 1985) ...................--
Continental Ins. Co. v. Herman,
576 So. 2d 313 (Fla. 3d DCA 1991) ...............
Datascope Corp. v. SMEC, Inc.,
ew Fe Re 8 | eee re
DelCostello v. International Brotherhood of Teamsters,
5 2 &. % ERR ee
791 F.2d 846 (11th Cir. 1986) ................005.
737 F. Supp. 792 (S.D.N.Y. 1990), modified
on other grounds, 974 F.2d 290 (2d Cir. 1990) .......
Digioia v. H. Koch & Sons, Div, of Wickes Mfg. Co.
944 F.2d 809 (11th Cir. 1991) .............0. 00 0c.
Domer v. Red Top Cab & Baggage Co.
37 So. 2d 160 (Fla. 1948) .......0 0.0.0. cece eee
107a
785 F.2d 877 (11th Cir. 1986)...........
325 U.S. 711 (1945) ;
>
3 F.3d 391 (11th Cir. 1993)...
1992 Us Dist. LEXIS 9753, ~ (N.D.N.Y. 1992)...
371 US i962) ee ee eae et
ae ae (Fla. 24DCA 1986)...
se So. 2d 370 a SthDCA 1988)...
>
oI F.3d 1016 (11th Cir. 1995)
108a
Implement Serv., Inc. v. Tecumseh Products, Co.
Tae ©. . TETE GEE BRE. BOD oc ccc ce sccsses.
I Deikin Mieusi C “7
868 F.2d 1201 (11th Cir. 1989) ...................
188 B.R. 56 (S.D. Fla. Bankr. 1994) ...............
nf } Litication. MD) bl
Laboratories, Inc.,
72 F.3d 842 (11th Cir. 1995) .............0..0....
Kelly v. Gill,
544 So. 2d 1162 (Fla. 5th DCA 1989) ..............
Kuinion v. Design Systems, Inc.
641 P.2d 472 (Mont. 1981) ......................
Knight v. Sanders,
988 F.2d 120 (9th Cir. 1993) ...............0.0...
” tine Pi |
778 F.2d 883 (D.C. Cir. 1985) ................-5.
Leonard v. Pan Am. World Airways, Inc.
_ owe Yeh) le |) re
Lewis v. Guthartz,
428 So. 2d 222 (Fla. 1982) .......... cece eee eee.
Lingle v. Norge Div. of Magic Chef, Inc.
486 U.S. 399 (1988) 20.0... cece cece eee ee
109a
Me
12 F.3d 1558 (11th Cir. 1995)....................
499 So. 2d 68 (Fla. 3d DCA 1986) ................
698 F. Supp. 1154 (S.D.N.Y. 1988) ...............
Oe ET ee Tr)
FIST ORI).
427 So. 2d 266 (Fla. 2d DCA 1983) ...............
none. i)
986 F.2d 468 (11th Cir. 1993)... _. ee ey ease
110a
7780-24 182 (Fla 198) ee.
See eT DB 1980) SPAR tet eee or
eee 20 tS Fe se Rare ieee eee
815 F.2d 1435 (11th Cir. 1987),
cert. denied, 485 U.S. 1020 (1988) ................
Ten Assocs. v. Brunson,
492 So. 2d 1149 (Fla. 3d DCA 1986) ..............
Union P. R. Co. v. Sheehan,
WP Ut TCI ng 5 ok vs cece sce eccislesccss
T ee
Corp., |
ore 20 51 Ce: TROD). «.w. 65 os oe skis cass
Walker v, Southern Ry, Co.
OU TE PI noc vs ese Seca pbs kou evacuees
White Constr. Co. v. DuPont,
455 So. 2d 1026 (Fla. 1984) ................0000.
Winicki v, Mallard
441 So. 2d 693 (Fla. Ist DCA 1983) ...............
llla
171 So. 214 (Fla. 1936) .......0000 000
STATUTES
28 U.S.C. § 1291 (1982)...
28 U.S.C. § 1331 (1980)...
29 U.S.C. § 160 (1984) 2.
RULES
cals lk a ea
Si ie «oak su ee
sittin. ee
OM I OM aoa k os vac deo ncn.
Fed. R. Civ. P. 72
11th Cir.R. 28-2
11th Cir.R. 32-4
1ith Cir.R. 34-3
S.D. Fla. L.R. 15.1
1l3a
STATEMENT REGARDING ADOPTION
Each of the Appellees joins in the filing of this
single brief in opposition to TOSKI's appeal and in support
of Judge Davis' Order Adopting Magistrate's Report and
Recommendation and Granting Summary Judgment.®
Appellees request that this Court deny TOSKI's
request to adopt the petitioners’ briefs in | j
, 486 U.S. 399 (1988) and
Co., 385 US. 196 (1966), and the
respondent's brief in ISVI
Ry. Co,, 406 U.S. 320 ( 1972),? on the grounds that: (1)
Fed. R. App. P. 28(i) does not permit a party to adopt the
briefs of parties to entirely unrelated cases: and (2)
Appellees are unable to respond to any arguments or
authorities advanced in these briefs, because TOSKI has
not identified in detail which portions of these briefs he is
adopting, nor has he attached or, to date, separately served
a copy of any of these briefs, which are not published or
otherwise available. See TOSKI's Brief, p. x.
* Vol. 6, Doc. 179.
* TOSKI's Brief at p. x.
ll4a
STATEMENT OF JURISDICTION
The Court has jurisdiction to review United States
District Judge Edward B. Davis' February 1, 1994 Order'®
Adopting Magistrate's Report and Recommendation’ and
Granting Defendants/Appellees' Motion for Summary
Final Judgment,’” pursuant to 28 U.S.C. § 1291 (1982).
0 Vol. 6, Doc. 179.
'! Vol. 6, Doc. 174.
2 Vol. 4, Doc. 97.
115a
STATEMENT OF THE ISSUE
Whether the United States District Court for the
Southern District of Florida properly determined that the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
establish that there is no genuine issue of any material fact
with respect to the claims asserted in TOSKI's Complaint
and that Appellees are entitled to summary final judgment
in their favor on those Claims, as a matter of law.
1l6a
I. COURSE OF PROCEEDINGS AND
DISPOSITIONS IN THE COURT
BELOW,
In 1987, TOSKI filed suit against EAL,
WILLIAMS, McDONNELL and others for injunctive
relief and damages he allegedly sustained as a result of
EAL's decision to terminate his employment. See
TOSKI's Complaint in Toski v. Lorenzo, et al., Case No.
87-1422-CIV-ATKINS, Vol. 4, Doc. 97, Exhibit F. In
that case, United States District Judge Atkins dismissed
TOSKI's Complaint, based upon his findings that: (1)
TOSKI had not exhaust[ed] his administrative remedies in
pursuing his wrongful discharge claim; and (2) TOSKI's
claims under the Railway Labor Act constitute ‘a minor
dispute’. . . and, [therefore,] are subject to the compulsory
arbitration procedures of [SJection 153 [of the Act]." See
Order on Application for Temporary Restraining Order,
dated August 19, 1987, Vol. 4, Doc. 97, Exhibit G.
Eighteen (18) months later, EAL filed a Chapter 11
Bankruptcy Petition, which resulted in a stay of TOSKI's
action against EAL. See EAL's Certificate of
Commencement of Case, dated March 9, 1989, Vol. 4,
Doc. 97, Exhibit H.
Apparently frustrated at his inability to obtain relief
against his employer (i.e., EAL) and in a thinly veiled
attempt to circumvent the operation of the automatic stay,
TOSKI then initiated this action against Appellees,
individually, on October 23, 1990, in Florida state court.
As originally drafted, TOSKI's nine (9) count Complaint
against his co-workers included claims based on battery
117a
(Count I), negligent retention (Count II), wrongful
discharge (Count III), unfair labor practices (Count IV),
breach of implied covenant of good faith (Count V),
breach of contract (Count VI), spoliation of evidence
(Count VII), malicious prosecution (Count VIII) and civil
conspiracy (Count IX). See TOSKI's Complaint attached
to Notice of Removal ("TOSKI's Complaint"), Vol. l,
Doc. 1; Vol. 1 (1st Supp.), Doc. 189. Appellees, in turn,
filed a Motion to Dismiss or Strike the Complaint’® and
timely removed the case to the United States District Court
for the Southern District of Florida ("district court") based
on federal question jurisdiction and pursuant to 28 U.S.C.
§ 1331 (1980). See Notice of Removal, Vol. 1, Doc. 1:
Vol. 1 (1st Supp.), Doc. 189.
After oral argument on Defendants' Motion to
Dismiss or Strike the Complaint, Magistrate Judge
William C. Turnoff concluded that "each and every claim
of [the] Defendants [was] colorable," but noted that "[the
majority] of Defendants' arguments [were] more suitable
for adjudication on a motion for summary judgment."
Report and Recommendation, dated September 20, 1991,
Count I (battery), as to an alleged April 11, 1986 incident,
because it was time-barred, and Count VIII (malicious
prosecution). Vol. 1, Doc. 20, p. 2. Based upon the
I and VIII in a November 15, 1992 Order. See Vol. 1, Doc.
21.
'? Vol. 1, Docs. 1 and 7.
118a
At the close of discovery, Appellees filed a Motion
for Summary Final Judgment in which they argued that:
(1) TOSKI's claim for relief under the Railway Labor Act,
45 U.S.C. § 151 et seg. (1949) ("RLA"), is time-barred by
the applicable six (6) month statute of limitations; (2)
TOSKI's claims under the RLA are barred because TOSKI
did not exhaust his administrative remedies prior to filing
suit; (3) TOSKI's tort claims are preempted by the RLA;
(4) TOSKI's claim for negligent retention is meritless
because EAL, and not Defendants HENRY or
WILLIAMS, was McDONNELL's "employer" under
Florida law; (5) TOSKI's claim for wrongful discharge,
under Section 440.205, Fla. Stat. (1987), is deficient
because Defendant WILLIAMS was not an "employer,"
within the meaning of Section 440.02, Fla. Stat. (1987);
(6) Florida does not recognize an implied covenant of
good faith and fair dealing in a wrongful discharge claim;
(7) Appellees were not parties to the Collective Bargaining
Agreement between EAL and TOSKI's union, the
IAMAW, ("CBA"), which forms the basis for TOSKI's
breach of contract claim; (8) TOSKI could not establish
any of the elements necessary to maintain an action for
wrongful destruction of evidence under Florida law; (9)
TOSKI's claims for punitive damages are insufficient, as
a matter of law, because there is no evidence that
Appellees acted with the degree of culpability required to
support a conviction for manslaughter; (10) there is no
evidence that Appellees engaged in a conspiracy; and (11)
a contractual or statutory basis does not exist for an award
of attorney's fees, as required under Florida law. See Vol
4, Doc. 97, pp. 5-19.
Magistrate Judge Turnoff recommended that the
district court grant Defendants’ August 17, 1993 Motion
119a
for Summary Final Judgment in a November 10, 1993
Report and Recommendation, on the grounds that: (1)
TOSKI's "failure to exhaust the administrative remedies
available to him prevents him from prevailing in this
forum" on his claims under the RLA;" and (2) TOSKI's
remaining arguments proffered by Appellees in their
Motion for Summary Judgment with respect to the
separate state law claims, because he found that TOSKI's
State law claims were preempted. Id. at p. 10, n. 7.
On February 1, 1994, District Judge Davis adopted
Magistrate Judge Turnoff's Report and Recommendatio
in its entirety" and granted Summary Final Judgment in
'* Vol. 6, Doc. 174, p. 6.
'* See TOSKI's Response to Appellees’ Motion for
Summary Final Judgment, Vol. 5, Doc. 162, pp. 3-5.
120a
Docs. 180 and 181. Judge Davis denied TOSKI's Motion
to Appeal Jn Forma Pauperis in a March 9, 1994 Order,
because, from an objective standard, TOSKI's appeal
was frivolous. See Vol. 6, Doc. 182. In reaching his
decision, Judge Davis noted that "[s}ummary judgment
was granted in the [Appellees'] favor largely out of [a]
failure by the Plaintiffs (sic) to exhaust his administrative
remedies under the [RLA].""* Id.
After two (2) years and numerous extensions, this
Court issued an Order on April 4, 1996, in which it denied
TOSKI's Eleventh Status Report Regarding the Record,
construed by the Clerk as a Motion to Further Stay the
Briefing Schedule,’’ and ordered TOSKI to file his Brief
'© This Court denied TOSKI's April 11, 1992 Rule 24
Motion for Leave to Appeal Jn Forma Pauperis on July 7,
1994, on the grounds that TOSKI did not appear to be
indigent, and denied TOSKI's Motion for Reconsideration
of the July 7, 1994 Order on September 21, 1994. On
March 20, 1995, the Supreme Court denied TOSKI's
December 20, 1994 Motion for Leave to Proceed Jn Forma
Pauperis in the Supreme Court for purposes of filing a
Petition for Wnt of Certiorari to review this Court's Orders
denying TOSKI leave to appeal in forma pauperis in this
Court. A copy of the March 20, 1995 correspondence
from the Clerk of the Supreme Court is attached hereto as
Exhibit A. TOSKI finally paid the filing fees for this
appeal on November 8, 1994.
‘7 TOSKI filed his "Eleventh Status Report Regarding
the Record" on February 13, 1996, a mere seven (7) days
before the Clerk would dismiss his appeal for lack of
l2la
and record excerpts by April 15, 1996 or face dismissal
for lack of prosecution. TOSKI filed his partially
completed Brief on April 15, 1996. However, he did not
file the record excerpts by the Court-ordered deadline.
Instead, on May 1, 1996, TOSKI filed a Motion to File
Record Excerpts Out of Time. Appellees objected to
TOSKI's Motion, on the grounds that, by failing to timely
file record excerpts, pursuant to this Court's April 4, 1996
Order, TOSKI did not satisfy a mandatory precondition to
maintaining his appeal. TOSKI's Motion to File Record
Excerpts Out of Time and Appellees’ April 20, 1994
Motion to Dismiss the Appeal remain pending before this
Court.
prosecution.
122a
I. | STATEMENT OF THE FACTS."
On or about June 21, 1976, EAL hired TOSKI to
work as a shop laborer at its Miami facility. See April 21,
1991 Deposition of TOSKI ("TOSKI Deposition"), Vol. 4,
Doc. 97, Exhibit A, p. 42. Five (5) years later, EAL
promoted TOSKI to the position of mechanic in its
Ground Support Equipment Auto Shop ("GSE Shop"). Id.
at p. 48. TOSKI remained in the GSE Shop for
approximately six (6) weeks, when, as part of a reduction
in its work force, EAL laid TOSKI off and reassigned to
him to a stock clerk position. Id, On April 24, 1984, EAL
recalled TOSKI to the GSE Shop as a line mechanic. Id.
at pp. 48 and 49.
'§ The "facts" contained in the "Statement of the
Facts" section of TOSKI's Brief, pp. 4-6, except for
TOSKI's term of employment at EAL and his position as
Shop Steward, were not presented to the district court in
TOSKI's Response to Appellees' Motion for Summary
Final Judgment and do not otherwise constitute facts of
record in this case. See TOSKI's Response to Appellees’
Motion for Summary Final Judgment, Vol. 5, Doc. 162.
Moreover, the Court should dismiss TOSKI's appeal
because TOSKI's Brief violates Fed. R. App. P. 28(a)(4) in
that TOSKI's "Statement of the Facts" does not include any
references to the record. See Mitchel v. General Elec, Co.,
689 F.2d 877, 879 (9th Cir. 1982); In re Suncoast Airlines,
Inc., 188 B.R. 56 (S.D. Fla. Bankr. 1994).
123a
with TOSKI's job performance and attitude. Those
problems included: (1) TOSKI's Propensity for
instructions and directives of EAL management personnel.
See EAL's Letters of Discipline, Instruction, Reprimand
and/or Job Performance dated November 27, 1984,
and October 24, 1986, Vol. 4, Doc. 97, Exhibit B.’
Then, on November 4 1986, Appellees
had falsified a claim for medical benefits in conjunction
with an incident that allegedly occurred between TOSKI
and Appellee McCDONNELL on October 24, 1986. See
EAL's Letter of Termination, dated November 7, 1986,
Vol. 4, Doc. 97, Exhibit C. Appellees McCDONNELL and
WILLIAMS, in turn, reported TOSKI's actions to the
appropriate EAL Labor Relations personnel and, on
November 7, 1986, EAL terminated TOSKI's
employment. Id. See also Deposition of Peter Blanco,
Labor Relations Representative for EAL, Vol. 4, Doc. 97,
Exhibit D, pp. 6-8.
Five (5) days later, TOSKI filled Out a grievance
form relating to his termination. See TOSKI Deposition,
Vol. 4, Doc. 97, Exhibit A, pp. 510-511. See also
TOSKI's Appeal for Investigation Form, dated November
12, 1986, Vol. 4, Doc. 97, Exhibit E. Articles 17 through
19 of the CBA between EAL and TOSKI's union, the
124a
IAMAW, indisputably governed the filing, prosecution
and resolution of such grievances. A copy of the CBA is
attached as Exhibit B to Defendants’ Memorandum of Law
in Support of their Motion to Dismiss or Strike, Vol. 1,
Docs. 1 and 7. Significantly, however, TOSKI made a
conscious and strategic decision not to pursue or, in the
alternative, to delay his pursuit of that grievance before
the System Board of Adjustment ("SBA"). See TOSKI
Deposition, Vol. 4, Doc. 97, Exhibit A, pp. 511-515. As
a result, the SBA never even considered, let alone issued
a ruling on, TOSKI's grievance. Id. at 515.
lil. STATEMENT OF THE STANDARD
OF REVIEW.
It is well-settled in the Eleventh Circuit that, in
deciding an appeal from the entry of a summary judgment,
the appellate court must conduct a de novo review of the
evidence before the district court, construe that evidence
in a light most favorable to the non-moving party, and
determine whether there is a genuine issue as to any
material fact and whether the moving party is entitled to
judgment as a matter of law. See
Trust Corp., 51 F.3d 1016, 1020 (11th Cir. 1995)(cit
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