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Musleh v. American Steamship Co.

United States District Court, E.D. Michigan, Southern Division

September 8, 2017

MUSID MUSLEH, Plaintiff,



         This action involves Plaintiff's claim that he was improperly denied unearned wages after he was declared fit for duty (“FFD”) following an injury suffered while he was serving as a seaman for Defendant American Steamship Company (“ASC”) on the Great Lakes aboard the M/V St. Clair. ASC responds that Plaintiff was not qualified to return to work on an ASC vessel because he failed to obtain a Vessel Personnel and Designated Security Duties (“VPDSD”) endorsement before returning to work, a requirement imposed by ASC on all seaman who, like Plaintiff, come to ASC through the Seafarer's International Union (“SIU”).

         Plaintiff now moves for summary judgment on Count I of the Complaint for unearned wages and Defendant moves for summary judgment on both Counts I and II. The Court held a hearing on the motions on August 14, 2017. For the reasons that follow, the Court DENIES Plaintiff's motion and GRANTS Defendant's motion.


         Although the parties have filed cross-motions for summary judgment, requiring the Court to view the facts separately in the light most favorable to each of them, the facts are largely undisputed. On December 26, 2014, Plaintiff injured his shoulder and his thumb while working for ASC as a seaman aboard the M/V St. Clair. (ECF No. 18, Ex. 2, Pl.'s Dep. 13:22-23; 39:16-40:3.) On June 16, 2015, Plaintiff was issued a notice by Jiab Suleiman, D.O. stating that Plaintiff “is able to return to work with no restrictions, ” and was FFD at that time. (ECF No. 18, Ex. 3, Def.'s Answers to Pl.'s Interrogatories (“Interrogs.”) and Requests for Admission (“RFAs”) RFA No. 3, PgID 217; Pl.'s Dep. 13:22-14:1.)[1]

         Plaintiff sent his FFD slip to ASC and a few days later took the FFD to the SIU, seeking to return to work as a seaman for ASC. Don Thornton, a representative of the SIU, explained to Plaintiff that he needed to obtain a VPDSD certificate to work as a seaman for ASC, and gave Plaintiff a card with the name of a retired United States Coast Guard (“USCG”) officer, Steve Johnson, who could help Plaintiff to obtain the VPDSD certificate. Plaintiff called Johnson who informed Plaintiff that he did not need a VPDSD to work on the Great Lakes. (Pl.'s Dep. 14:6-17:25; 18:12-16; 47:23-49:7.) Plaintiff also called Mary Banks, who was the Human Resources administrator for ASC, who asked him why he had not come back to work and when he explained to her what he had been told by Mr. Thornton, Ms. Banks said she would call him back - but she did not call him back. (Pl.'s Dep. 15:6-16:1; 53:1-19.)

         After speaking with Mr. Johnson, who informed Plaintiff that he did not need a VPDSD to work on the Great Lakes, Plaintiff called Mr. Thornton back and told him that Mr. Johnson stated that Plaintiff did not need a VPDSD certification. Thornton responded that regardless of what Mr. Johnson said to Plaintiff, ASC required the VPDSD endorsement in order to return to work for ASC. Plaintiff asked Thornton how Plaintiff was supposed to pay for the class, and for transportation to the site of the class. Thornton told Plaintiff it was at Plaintiff's own expense, and neither ASC nor the SIU would pay the cost for Plaintiff. Plaintiff explained that he didn't have the money and Mr. Thornton said it was up to Plaintiff to pay and there was nothing Mr. Thornton could do. (Pl.'s Dep. 47:23-52:25.) Ultimately, ASC provided Plaintiff with a letter (“the ASC letter”) that Plaintiff presented to the USCG in May, 2016, to attempt to obtain some type of waiver of the VPDSD course requirement, but the USCG informed Plaintiff that the ASC letter was insufficient and that the VPDSD certificate would be required. (Pl.'s Mot. Exs. D, E.)

         Plaintiff had no further contact with anyone at ASC, or with Mr. Thornton of the SIU or Mr. Johnson of the Coast Guard and never contacted the USCG, before retaining counsel and filing this lawsuit. (Pl.'s Dep. 53:1-55:14, 56:11-25.) Plaintiff did not seek work from any other company and never investigated whether there were other companies who would have hired him without a VPDSD endorsement. (Pl.'s Dep. 59:16-60:12.)

         ASC admits that the VPDSD endorsement for merchant mariners is not a regulatory requirement of the USCG for vessels serving on the Great Lakes. (ECF No. 18, Pl.'s Mot. Ex. 3, RFA No. 1, PgID 215.) The VPDSD endorsement is, however, a requirement that ASC has imposed on all mariners serving on ASC vessels and the practice has been agreed to by the SIU, and continues to be a term of employment for all mariners coming to ASC from the SIU. (RFA No. 2, PgID 216; Pl.'s Mot. Ex. 4, Jan. 5, 2017 Deposition of Kevin Patrick McMonagle 48:11-50:55.) Kevin McMonagle, the Vice President of Operations for ASC, instructed the SIU that mariners dispatched by the SIU would be required by ASC to have a VPDSD endorsement. The SIU expressed no disagreement with this requirement, which was not required to be in the SIU/ASC collective bargaining agreement (“CBA”). ASC considered VPDSD to be a term or condition of employment for all seaman referred to ASC by the SIU. (McMonagle Dep. 11:21-12:20, 23:3-14, 24:15-25:3, 70:12-17.)

         Indeed, notification of the VPDSD requirement appeared in an SIU publication sent to all mariners, including Plaintiff, as early as November, 2014, and was being imposed and enforced long before Plaintiff received his FFD slip in June, 2015. Plaintiff acknowledged that he was working for ASC in November, 2014, when the VPDSD certification requirement was announced. (Pl.'s Dep. 61:22-63:18.) ASC did create the ASC letter that it presented on request to its seamen seeking the VPDSD, which the seamen could present to the USCG explaining that an employed seaman was qualified for the VPDSD by a specific longevity with ASC and a specific number of hours on security detail in the preceding three years. (McMonagle Dep. 38:16-39:23, 41:1-8.) ASC hoped, but could not guarantee in every case, that the ASC letter would satisfy the USCG regarding an individual seaman's qualification for the VPDSD endorsement. McMonagle was unaware whether Plaintiff met the criteria in the ASC letter. (McMonagle Dep. 42:1-13, 44:3-45:3, 48:2-9.)

         McMonagle did not know anything about Plaintiff or his difficulties in obtaining the VPDSD endorsement prior to this litigation and could not recall any conversation with Ms. Banks regarding Plaintiff's attempts to acquire his VPDSD. He had no information regarding Plaintiff's contact with the USCG regarding his VPDSD endorsement and has no knowledge whether a seaman can apply for a VPDSD endorsement while on Not Fit For Duty (“NFFD”) status, although he generally is aware that seamen on NFFD status are not eligible for site training at SIU expense. (McMonagle Dep. 15:15-16:3, 54:20-55:17, 57:2-15, 64:7.)

         McMonagle testified that, although there was nothing preventing ASC from doing so, ASC has made the decision not to make any exceptions to the VPDSD endorsement requirement. ASC has provided the same ASC letter (Pl.'s Mot. Ex. 5, May 4, 2016 Letter from ASC to USCG re: Musid A. Musleh) that it provided to Plaintiff for presentation to the USCG to other seaman employed by ASC who attempted to obtain the VPDSD endorsement. McMonagle has not spoken to the USCG regarding Plaintiff's case and does not know why the USCG imposed additional requirements on Plaintiff or why the ASC letter was not sufficient in Plaintiff's case to obtain a waiver of the VPDSD course requirement. (Pl.'s Mot. Ex. 6, June 24, 2016 Letter from USCG to Musid Musleh). (McMonagle Dep. 64:8-68:22.) The USCG June 24, 2016 Letter to Plaintiff explains that it had received his application on June 9, 2016, and that “[a]fter a comprehensive professional qualifications evaluation [his] application request is pending and in need of additional supporting information and/or documentation.” (Pl.'s Mot. Ex. 6, PgID 262.) The June 24, 2016 Letter from the USCG explains in an attachment that:

         VPDSD/Security Awareness -

To qualify for an STCW endorsement as Vessel Personnel with Designated Security Duties (VPDSD), you must provide a certificate or letter signed by a company official OR certificate of completion from a U.S. Coast Guard accepted or approved course that meets the requirements of 33 CFR 104.220. The letter submitted does not meet the requirements in 33 CFR 104.220.

         References: 46 CFR 12.625; 33 CFR 104.220; NVIC 21-14. (Pl.'s Mot. Ex. 6, PgID 263.) There is no evidence in the summary judgment record regarding the exact basis for the USCG's determination regarding Plaintiff's qualifications for the VPDSD endorsement.

         46 C.F.R. 12.625, cited as a reference in the USCG's June 24, 2016 Letter to Plaintiff, provides as follows:

§ 12.625 Requirements to qualify for an STCW endorsement as vessel personnel with designated security duties.

         (a) An applicant for an STCW endorsement as vessel personnel with designated security duties must-

(1) Present satisfactory documentary evidence, such as a certificate or letter signed by a company official, or a certificate of completion from a Coast Guard-accepted or Coast Guard-approved course, of meeting the requirements in 33 CFR 104.220;
(2) Meet the physical examination requirements in 46 CFR Part 10, subpart C; and
(3) Meet the safety and suitability requirements and the National Driver Registry review requirements in § 10.209(e) of this subchapter, unless the applicant has met these requirements within the previous 5 years in connection with another endorsement.

         (b) Until March 24, 2014, seafarers will be able to apply for an endorsement as vessel personnel with designated security duties by-

(1) Having completed approved seagoing service with designated security duties, for a period of at least 6 months in total during the preceding 3 years;
(2) Having performed security functions considered to be equivalent to the seagoing service required in paragraph ...

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