Opinion
No. 21-0374-CV-W-FJG
02-11-2022
Jose Roberto RIOS-GUTIERREZ, et al., on behalf of themselves and all others similarly situated, Plaintiffs, v. BRIGGS TRADITIONAL TURF FARM, INC., et al., Defendants.
Daniel Werner, Pro Hac Vice, Radford & Keebaugh, LLC, Decatur, GA, Mark V. Dugan, Heather J. Schlozman, Dugan Schlozman LLC, Overland Park, KS, for Plaintiffs. Miguel Cabrera Placencia, Pro Se. Fernando Licerio Escalante, Pro Se. Oscar Martinez Licerio, Pro Se. Luis Edgardo Sanchez Juarez, Pro Se. Ramiro Valadez Alvarado, Pro Se. Luis Fernando Licerio Rodriguez, Pro Se. Arcadio Valadez Alvarado, Pro Se. Rosa Margarita Licerio Escalante, , Pro Se. Anthony Landery Gosserand, Van Osdol PC, Kansas City, MO, for Defendants Briggs Traditional Turf Farm, Inc., L.C. Briggs Turf Farm, LLC, Lawrence Clyde Briggs, Lawrence Capen Briggs.
Daniel Werner, Pro Hac Vice, Radford & Keebaugh, LLC, Decatur, GA, Mark V. Dugan, Heather J. Schlozman, Dugan Schlozman LLC, Overland Park, KS, for Plaintiffs.
Miguel Cabrera Placencia, Pro Se.
Fernando Licerio Escalante, Pro Se.
Oscar Martinez Licerio, Pro Se.
Luis Edgardo Sanchez Juarez, Pro Se.
Ramiro Valadez Alvarado, Pro Se.
Luis Fernando Licerio Rodriguez, Pro Se.
Arcadio Valadez Alvarado, Pro Se.
Rosa Margarita Licerio Escalante, , Pro Se.
Anthony Landery Gosserand, Van Osdol PC, Kansas City, MO, for Defendants Briggs Traditional Turf Farm, Inc., L.C. Briggs Turf Farm, LLC, Lawrence Clyde Briggs, Lawrence Capen Briggs.
ORDER
Fernando J. Gaitan, Jr., United States District Judge
Pending before the Court is Plaintiffs’ Motion for Conditional Collective Action Certification (Doc. No. 26). The Court considers this motion, below.
I. BACKGROUND
Plaintiffs Jose Roberto Rios-Gutierrez, Jose Juan Mendoza-Servin, Francisco Javier Martinez-Mendez, Jonathan Rodriguez-Anaya, and Cesar Edgardo Avendaño-Martinez, are Mexican nationals. Plaintiffs worked for defendants Briggs Traditional Turf Farm, Inc., L.C. Briggs Turf Farm, LLC, Lawrence "Larry" Briggs, and Capen Briggs between 2018 and 2020. Plaintiffs allege that they and the other workers on whose behalf they bring this action came to work in the United States as guestworkers on H-2A visas. See 2nd Am. Compl., ECF No. 41, ¶¶ 10-19; Oct. 26, 2021 Decl. of Jose Juan Mendoza-Servin ("Mendoza-Servin Decl.") ¶¶ 3 & 6; Oct. 26, 2021 Decl. of Cesar Edgardo Avendaño Martinez ("Avendaño-Martinez Decl.") ¶¶ 3 & 6; Oct. 27, 2021 Decl. of Francisco Javier Martinez-Mendez ("Martinez-Mendez Decl.") ¶¶ 3 & 6; Oct. 26, 2021 Decl. of Jose Roberto Rios-Gutierrez ("Rios-Gutierrez Decl.") ¶¶ 3 & 6; Oct. 26, 2021 Decl. of Jonathan Rodriguez-Anaya ("Rodriguez-Anaya Decl.") ¶¶ 3 & 6). Under the H-2A visa program, the visa holder is required to "perform agricultural labor or services" as defined by the Internal Revenue Code, 26 U.S.C. § 3121(g) and the FLSA, 29 U.S.C. § 203(f). See 8 U.S.C. § 1101(a)(15)(H)(ii)(a). Plaintiffs assert that H-2A visas only allow the visa holders to work in agriculture, and accordingly the Defendants reported to the government that they needed the workers to perform sod production on Defendants’ sod farm in Missouri.
The motion also requested that a class be certified as against former defendant Felix Rodriguez; however, pursuant to a stipulation of dismissal, all claims against Mr. Rodriguez were dismissed. See Doc. Nos. 39, 42. In addition, Plaintiffs have not moved to amend their request for conditional certification to include their claims against newly-named defendants Kenosha, LLC, Naudi-D Investments, LLC, and the Court declines to conditionally certify any claims against these two defendants at this time.
Agriculture workers, as defined in 29 U.S.C. § 203(f), are generally exempt from overtime. See 29 U.S.C. § 213(a)(6). Thus, if Plaintiffs performed only agriculture work (as required by the H-2A visas), Defendants would not be liable for overtime payments. However, Plaintiffs allege that they were required to perform landscaping work (including laying sod, as opposed to sod production) at commercial, residential, and government properties in western Missouri and eastern Kansas. 2nd Am. Compl. ¶ 82; Mendoza-Servin Decl. ¶ 8; Avendaño-Martinez Decl. ¶ 8; Martinez-Mendez Decl. ¶ 8; Rios-Gutierrez Decl. ¶ 8; Rodriguez-Anaya Decl. ¶ 8. Plaintiffs assert that landscaping workers, as opposed to agricultural workers, should be paid overtime for weeks where they worked more than 40 hours, as landscaping work is not considered agricultural labor or services. See 26 U.S.C. § 3121(g), 29 U.S.C. § 203(f), 2nd Am. Compl. ¶¶ 61-62. Plaintiffs assert that they regularly worked more than 40 hours in a week, but Defendants rarely paid an overtime premium; plaintiffs assert that Defendants relied on the exemption for agricultural workers. 2nd Am. Comp. at ¶¶ 76-79; Ex. 1, Mendoza-Servin Decl. ¶¶ 9-10 & Ex. A; Ex. 2, Avendaño-Martinez Decl. ¶¶ 9-10 & Ex. A; Ex. 3, Martinez-Mendez Decl. ¶¶ 9-10 & Ex. A; Ex. 4, Rios-Gutierrez Decl. ¶¶ 9-10 & Ex. A; Ex. 5, Rodriguez-Anaya Decl. ¶¶ 9-10 & Ex. A). Therefore, Plaintiffs argue that should have been paid overtime for those weeks in which they worked over 40 hours.
Plaintiffs point out that, prior to 2018, Defendants brought foreign workers to the United States through the H-2B visa program, which is for non-agricultural temporary work. See 8 U.S.C. § 1101(a)(15)(H)(ii)(b). Plaintiffs assert that they have reason to believe that those employees who were brought in pursuant to an H-2B visa received overtime payments when appropriate. Plaintiffs further assert that the H-2B visa holders performed the same type of work as the H-2A visa holders.
Plaintiffs bring this case as a putative FLSA collective action, as well as a putative class action under Fed. R. Civ. P. 23, to recover unpaid wages and to address other alleged violations of the law. As is relevant to the present motion, Plaintiffs seek to represent a class of current and former H-2A visa workers who worked for Defendants between May 28, 2018, and the present. Plaintiffs assert that they have presented substantial allegations that they and the putative class members were the victims of a single decision, policy, or plan. Plaintiffs request that the Court conditionally certify this collective action, require Defendants to provide Plaintiffs with a list of similarly situated employees, and allow Plaintiffs to send notice of this action to those employees. In response, Defendants assert that Plaintiffs have not met their burden to demonstrate that they were the victims of a single decision, policy, or plan, and that Plaintiffs’ proposed notice form is defective in several ways and should be amended if the Court conditionally certifies this action.
II. STANDARD
Plaintiffs bring their motion for conditional certification under the collective action provision of the FLSA, 29 U.S.C. § 216(b). Under this provision, "[a]n action to recover [FLSA liability] ... may be maintained against any employer ... by any one or more employees for and in behalf of himself or themselves and other employees similarly situated." The Eighth Circuit has not dictated a standard for determining whether plaintiffs are similarly situated; however, district courts in this Circuit typically follow a two-stage certification process: (1) the conditional certification or notice stage and (2) the opt-in or merits stage. Davis v. NovaStar Mortg., Inc., 408 F.Supp.2d 811, 814–15 (W.D. Mo. 2005) ; Kautsch v. Premier Communications, 504 F.Supp.2d 685, 688 (W.D. Mo. 2007).
At this early stage of the litigation, the Court does not reach the merits of the Plaintiff's claims. Once the Court conditionally certifies the class, potential class members are given notice and the opportunity to ‘opt-in.’ At the second step of the process, the defendants may move to decertify the class. This is typically done after the close of discovery when the Court has much more information and is able to make a more informed decision.
Uwaeke v. Swope Community Enterprises, Inc., No. 12-1415-CV-W-ODS, 2013 WL 3467062, at *1 (W.D. Mo. July 10, 2013) (internal citations omitted).
In determining whether conditional certification is appropriate under the FLSA the Court is to apply a "lenient standard" that requires only a "modest" factual showing. Kautsch, 504 F.Supp.2d at 688-89 ; Chapman v. Hy-Vee, Inc., No. 10-CV-6128-W-HFS, 2012 WL 1067736, at *2 (W.D. Mo. Mar. 29, 2012) (granting conditional certification and applying lenient, first-tier standard of review because "only a few depositions have been taken and a limited amount of documents exchanged"). "Plaintiffs can meet [their] burden by making a modest factual showing sufficient to demonstrate that they and potential plaintiffs together were victims of a common policy or plan that violated the law." Kautsch, 504 F.Supp.2d at 689. "There is no need to show that the would-be members of the class are actually similarly situated or that they are identical, but the plaintiff must present some evidence to demonstrate the class members are similar in important respects and are subjected to similar policies or circumstances." Dernovish v. AT&T Operations, Inc., No. 09-0015-CV-W-ODS, 2010 WL 143692, *1 (W.D. Mo. Jan. 12, 2010). However, "plaintiffs must present more than mere allegations ... some evidence to support the allegations is required." Young v. Cerner Corp., 503 F.Supp.2d 1226, 1229 (W.D. Mo. 2007).
III. ANALYSIS
A. Conditional Certification
Plaintiffs argue they have met the minimal requirements of conditional certification, as they have substantially alleged that the putative class members were victims of a single decision, policy or plan. The named Plaintiffs assert that they, like other members of the putative FLSA opt-in class, were foreign workers brought into the United States on H-2A visas for the stated purpose of performing agricultural work on Defendants’ sod farms. See 2nd Am. Compl. ¶¶ 86(b), 96(b), 107(b), & 117(b); 2018 Job Order, Doc. No. 41-1; 2019 Job Order, Doc. No. 41-2; 2020 Job Order, Doc. No. 41-3; 2021 Job Order, Doc. No. 41-4; Mendoza-Servin Decl. ¶¶ 7-9; Avendaño-Martinez Decl. ¶¶ 7-9; Martinez-Mendez Decl. ¶¶ 7-9; Rios-Gutierrez Decl. ¶¶ 7-9; Rodriguez-Anaya Decl. ¶¶ 7-9. Plaintiffs allege that they were not paid overtime, as agricultural work is exempt from overtime requirements. 29 U.S.C. § 213(a)(6). Plaintiffs allege, however, that instead of performing agricultural work, they were directed to perform landscaping work, and regularly worked for more than 40 hours in a week. Named Plaintiffs alleged that although they regularly worked more than 40 hours in a week, Defendants rarely paid overtime, violating 29 U.S.C. § 207(a). 2nd Am. Compl. ¶¶ 76-77; Ex., 1, Mendoza-Servin Decl. ¶¶ 9-10 & Ex. A; Ex. 2, Avendaño-Martinez Decl. ¶¶ 9-10 & Ex. A; Ex. 3, Martinez-Mendez Decl. ¶¶ 9-10 & Ex. A; Ex. 4, Rios-Gutierrez Decl. ¶¶ 9-10 & Ex. A; Ex. 5, Rodriguez-Anaya Decl. ¶¶ 9-10 & Ex. A (wage statements showing no overtime premiums).
Plaintiffs assert that Defendants had a policy of saying on the H-2A visa applications that their employees would be performing exempt agricultural work, and then directing those same employees to perform non-exempt work. Plaintiffs assert that this policy was applied equally to all foreign nationals working for Defendants who came to the United States on H-2A visas. Therefore, Plaintiffs assert that they have demonstrated that there is a group of similarly situated workers who were subject to Defendants’ single decision, policy or plan, meeting the modest burden for conditional certification. See Kautsch v. Premier Commc'ns, 504 F.Supp.2d 685, 689 (W.D. Mo 2007) ; Speer v. Cerner Corporation, No. 14-0204-CV-W-FJG, 2016 WL 1267809 at * 6 (W.D. Mo. March 30, 2016).
In response, Defendants argue that Plaintiffs have not met their burden to demonstrate that there are similarly situated individuals subject to a single decision, policy, or plan. Defendants assert, first, that all of the paystubs attached to Plaintiffs’ Declarations in support of conditional certification show that they received pay from Defendant Briggs Traditional Turf Farm, Inc., and not from any of the other Defendants in this case. Defendants attach to their suggestions in opposition the Declaration of Defendant Capen Briggs (Doc. No. 31, Ex. 1), wherein Mr. Briggs asserts that none of the Plaintiffs were ever employed by any Defendant other than Briggs Traditional Turf Farm, Inc. Therefore, Defendants argue that only the claims against Defendant Briggs Traditional Turf Farm, Inc., could qualify for treatment as a collective action. In reply, however, Plaintiffs assert that this argument ignores the expansive definition of employer under the FLSA, which provides that an employer is "any person acting directly or indirectly in the interest of an employer in relation to an employee." 29 U.S.C. § 203(d). The Court finds that, at this early stage and given the allegations against the named Defendants, all defendants named in the motion for conditional certification (Briggs Traditional Turf Farm, Inc., L.C. Briggs Turf Farm, LLC, Lawrence "Larry" Briggs, and Capen Briggs) potentially qualify as an employer under the FLSA.
In addition, Defendant Capen Briggs asserts in his Declaration that none of the Plaintiffs in this case were ever directed to perform any type of landscaping duties, and that none of the Plaintiffs were guaranteed that they would work only forty hours per week when they were employed by Briggs Traditional Turf Farm, Inc. Defendants further deny that any of the Plaintiffs, or any other H-2A workers employed by Defendants, did anything other than the seeding and laying of sod, and Defendants argue that those activities constitute agricultural work under the FLSA. The Court, however, finds that in making these arguments, Defendant is requesting the Court make an improper credibility determination at this early stage of the proceedings. See Davis v. NovaStar Mortg., Inc., 408 F.Supp.2d 811, 816 (W.D. Mo. 2005).
Accordingly, the Court finds that Plaintiffs have met their burden to demonstrate that they were subject to Defendants’ single decision, policy or plan, making this case appropriate for conditional certification.
B. Notice
Plaintiffs request that the Court order Defendants to provide a list of present and former H-2A workers. Plaintiffs further request that the Court approve the form of notice attached as Exhibit 6 to their motion.
Specifically, Plaintiffs request that Defendants be ordered to provide Plaintiffs’ counsel a list of the names, addresses, telephone numbers, social security or passport numbers, and dates of birth of the potential opt-in Plaintiffs. In response, Defendants indicate that in the event the Court grants the motion for conditional certification, they will immediately provide the information requested. Therefore, the Court ORDERS that Defendants provide the information requested by Plaintiffs within 10 days of the date of this Order.
In addition, Plaintiffs request the ability to use mail, email, WhatsApp and/or similar messaging services to provide notice to the members of the putative class. They also seek permission to post notice of conditional certification at Defendants’ work sites. Plaintiffs seek to post notice in both English and Spanish. Additionally, Plaintiffs request that the putative class members be allowed nine months to opt-in to this action. Plaintiffs note that a longer opt-in period is needed because the putative class includes migrant laborers who live outside the United States. Defendants do not oppose these requests; therefore, the Court finds that Plaintiffs shall be allowed to provide notice through mail, email, WhatsApp and/or other similar messaging services, and through posting at Defendants’ work sites. Furthermore, the opt-in period for this conditionally certified collective action will be nine months from the date of this Order; the last day to timely opt-in to this action will be NOVEMBER 7, 2022.
Although Defendants do not object to the methodology of the notice protocol proposed by Plaintiffs, Defendants have objections to some of the content of the proposed Notice (Exhibit 6 to Doc. No. 26). Defendants first request that such notice only list Briggs Traditional Turf Farm, Inc. as a Defendant, and not list any of the other Defendants. However, as the Court has found that conditional certification should be granted as to claims against all defendants listed in the motion (see above), Defendants’ request to omit the names of certain defendants is DENIED . Defendants further request that Section 17 of the Notice include contact information for counsel for Defendants as well as counsel for Plaintiffs. The Court concludes, however, that inclusion of the contact information for defense counsel could lead to confusion among members of the putative class, and has the potential to prejudice the interests of the members of the putative class given that defense counsel's interests are adverse to the members of the putative class. Defendants’ request for inclusion of its attorneys’ contact information is, therefore, DENIED. Finally, Defendants request that the Notice omit information regarding claims in the operative complaint that do not relate to FLSA wage and hour issues, such as allegations that Defendants engaged in mail and wire fraud and that Defendants provided false information returns to the IRS. See Proposed Notice, Ex. 6, p. 2 second bullet point; and p. 3, ¶ 2, all language after the word "week." Although Plaintiffs argue that the proposed Notice should list all claims in this lawsuit and that any confusion is eliminated by notifying the class that the Notice applies only to the FLSA claim, the Court finds that the better way to eliminate confusion would be to omit mention of the claims to which this Notice does not apply. Therefore, Defendants’ request that mention of mail and wire fraud as well as false reporting to the IRS be eliminated from the proposed Notice is GRANTED , and Plaintiffs are ORDERED to delete the language appearing on pages 2-3 of their proposed Notice as indicated above.
The Court notes, however, that any mention of former defendant Felix Rodriguez should be deleted from the Notice.
IV. CONCLUSION
For the reasons set forth above, Plaintiffs’ Motion for Conditional Collective Action Certification (Doc. No. 26) is GRANTED. Plaintiffs shall provide notice to the putative class members as set forth above.