# Appendix — Toski v. McDonnell > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_1178%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1997 - **Citation:** 522 U.S. 966 ## Text 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, unles [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_1178%3A3. Public record. Not legal advice.