Aguirre v. Best Care Agency, Inc.

• Citation: 961 F.Supp.2d 427
• Decision Date: 16 August 2013
• Docket Number: No. 10–CV–5914 (MKB).,10–CV–5914 (MKB).
• Parties: Jacqueline AGUIRRE, Plaintiff, v. BEST CARE AGENCY, INC., Dorothy de Castro, and Perlita Jordan, Defendants.
• Court: U.S. District Court — Eastern District of New York

961 F.Supp.2d 427

Jacqueline AGUIRRE, Plaintiff,

v.BEST CARE AGENCY, INC., Dorothy de Castro, and Perlita Jordan, Defendants.

No. 10–CV–5914 (MKB).

United States District Court,

E.D. New York.

Aug. 16, 2013.

Felix Boy Q. Vinluan, Law Office of Felix Vinluan, Gabriel S. De La Merced, Law Offices Of Gabriel Dela Merced, New York, NY, for Plaintiff.

Mario L. Demarco, Law Office of Mario Demarco, Port Chester, NY, for Defendants.

MEMORANDUM & ORDER

MARGO K. BRODIE, United States District Judge:

Plaintiff Jacqueline Aguirre brings the above-captioned action against Defendants Best Care Agency, Inc. (“Best Care”), Dorothy De Castro and Perlita Jordan, alleging (1) forced labor in violation of the Trafficking Victims Protection Reauthorization Act (“TVPRA”), 18 U.S.C. § 1589 and § 1595; (2) trafficking with respect to involuntary servitude and forced labor in violation of TVPRA, 18 U.S.C. § 1590 and § 1595; (3) fraudulent inducement; and (4) negligent misrepresentation.¹ Defendants counterclaimed for defamation. Plaintiff has moved for summary judgment on her four claims and Defendants' counterclaim. Defendants have moved for judgment on the pleadings as to De Castro and Jordan. For the reasons set forth below, Plaintiff's motion for summary judgment as to Plaintiff's claims is denied but granted as to Defendants' counterclaim. Defendants' motion for judgment on the pleadings is denied.

I. Background

Plaintiff was born in the Philippines and lived there from 1964 to 2000. (Pl. Dep. 8:6–10, 22–25.) Plaintiff obtained a Bachelor of Science degree in Accounting in the Philippines. (Pl. 56.1 ¶ 2; Defs. 56.1 ¶ 2.) On March 26, 2000, Plaintiff entered the United States on a tourist visa. (Pl. 56.1 ¶ 1; Defs. 56.1 ¶ 1; Pl. Dep. 8:20–21, 16:18–24.) Plaintiff visited an employment agency and met De Castro and Jordan, who represented themselves as the owners of Best Care, a nursing employment agency. (Pl. 56.1 ¶ 3; Defs. 56.1 ¶ 3.) According to Plaintiff, De Castro and Jordan “agreed to offer Plaintiff employment and H–1B immigration sponsorship so that Plaintiff could help them in the day-to-day operations of their nursing employment agency, more specifically on the accounting side of Best Care's business operations.” ² (Pl. 56.1 ¶ 4; see Pl. Dep. 31:8–33:4, 39:5–11, 54:7–9, 73:14–18.) De Castro and Jordan admit that they “agreed to help” Plaintiff with her H–1B visa but claim that they hired Plaintiff to perform “secretarial[-]related matters.” (Defs. 56.1 ¶ 4.)

a. H–1B Visa and Application Procedure

An H–1B visa is a temporary worker visa available to those who work in a specialty occupation. See8 C.F.R. § 214.2(h)(1)(ii)(B). An H–1B visa grants a “nonimmigrant alien” admission to the United States for an initial period of no more than three years. 8 C.F.R. § 214.2(h)(9)(iii)(A)(1). The visa may be extended for a period of three years, but an individual may not remain in the United States on an H–1B visa for more than a total of six years, unless the alien has an approved or pending labor certification application for at least one year. 8 C.F.R. § 214.2(h)(15)(ii)(B)(1); American Competitiveness in the Twenty–First Century Act of 2000, Pub.L. No. 106–313, § 106(a), 114 Stat 1251, 1254–55 (2000); Adusumelli v. Steiner, 740 F.Supp.2d 582, 586 (S.D.N.Y.2010), aff'd sub nom. Dandamudi v. Tisch, 686 F.3d 66 (2d Cir.2012).

In order for an employee to obtain an H–1B visa, an employer must file a labor condition application with the United States Department of Labor (“Labor Department”) and have it certified by the Labor Department. 20 C.F.R. § 655.700(b). After obtaining Labor Department certification of a labor condition application, the employer may submit a nonimmigrant visa petition with the labor condition certification application to the United States Department of Homeland Security (“DHS”) and request an H–1B visa classification for the nonimmigrant worker. Id. If DHS approves the H–1B visa classification, the nonimmigrant worker may apply for an H–1B visa abroad, or, if the nonimmigrant is already in the United States, for a change of visa status. Id.

An individual may apply for a green card or “legal permanent resident” status, while working in the United States with an H–1B visa. See Adusumelli, 740 F.Supp.2d at 586–87 n. 3 (explaining why individuals “may maintain their temporary status while simultaneously manifesting an intent to remain in the country permanently by applying to become” legal permanent residents). If an H–1B immigrant's maximum period of stay expires while she is waiting for a green card determination, permission to work is extended until the green card determination is made, even though the maximum term of the H–1B visa has expired. See8 C.F.R. § 274a.12(c)(9); see also Adusumelli, 740 F.Supp.2d at 586–87.

b. Plaintiff's H–1B Employment Applications

In early February 2001, Neil A. Weinrib was retained to prepare the H–1B visa petition for Plaintiff. (Pl. 56.1 ¶ 5; Defs. 56.1 ¶ 5.) On February 5, 2001, De Castro signed a labor condition application and a nonimmigrant visa petition on behalf of Plaintiff. (Pl. 56.1 ¶¶ 6–7; Defs. 56.1 ¶¶ 6–7; see Pl. Ex. 19.) In the labor condition application, Best Care proposed to hire Plaintiff as an accounting consultant for at least $19 per hour. (Pl. 56.1 ¶ 6; Defs. 56.1 ¶ 6; Pl. Ex. 19.) In the nonimmigrant visa petition, Best Care proposed to hire Plaintiff as an accounting consultant for 18 hours each week at $18,700 each year. (Pl. 56.1 ¶ 7; Defs. 56.1 ¶ 7; Pl. Ex. 19.) According to Defendants, De Castro was told to sign the petition documents and did so after Plaintiff and Weinrib forwarded the documents to her. (Defs. 56.1 ¶ 6.) Defendants claim Best Care “signed documents calling Plaintiff an ‘accounting consultant’ for immigration purposes at Plaintiff's request.” ³ (Defs. 56.1 ¶ 7.) In April 2001, Legacy INS ⁴ approved Plaintiff's petition for an H–1B visa for the period of April 26, 2001 to March 15, 2004. (Pl. 56.1 ¶ 8; Def. 56.1 ¶ 8; Pl. Ex. 22.)

According to Plaintiff, after the H–1B visa approval, “De Castro and Jordan required Plaintiff to perform, not only accounting-related responsibilities, but mostly other office-related operational responsibilities in connection with Best Care's staffing business.” (Pl. 56.1 ¶ 9.) Defendants, “[k]nowing that Plaintiff would become unlawfully present in the United States if they withdrew the H1B petition,” took advantage of their sponsorship of her “by paying her less than what they promised the U.S. Department of Labor and Legacy INS, and made her perform office functions not related to her [a]ccounting [c]onsultant position.” (Pl. 56.1 ¶ 10.) Plaintiff felt that if she did not operate “the way [Defendants] want[ed her] to function, they [would] withdraw [her] sponsorship,” and she would lose her status and be deported. (Pl. Dep. 66:3–6; 71:12–16.)

Plaintiff was initially paid $8 per hour and required to work 40 hours each week. (Pl. 56.1 ¶ 10.) She was not happy with her initial wages, but accepted the position with Best Care because they offered to sponsor her to obtain her H–1B visa. (Pl. Mem. 3; Pl. Dep. 44:24–45:18.) Plaintiff did not initially object to her rate of pay, but after the H–1B visa was approved, she objected to both De Castro and Jordan. (Pl. Dep. 45:19–46:21.) In addition to objecting to her inadequate pay, Plaintiff also objected to her supplemental office duties. (Pl. 56.1 ¶ 11.) De Castro and Jordan responded by offering to sponsor Plaintiff for her green card, and told her that she would receive the wage set forth in her immigration documents as soon as she received her green card. (Pl. Mem. 3; Pl. 56.1 ¶ 12; Pl. Decl. ¶ 14.) De Castro and Jordan “told her that if she did not like the work-pay arrangement, they could simply discontinue or withdraw their H1B sponsorship.” (Pl. 56.1 ¶ 12.) Fearing the withdrawal by Defendants of the nonimmigrant visa petition, Plaintiff “felt compelled to agree to Defendants' proposals, and continued to work for them at a much lesser compensation rate than required by law.” (Pl. 56.1 ¶ 13.)

According to Defendants, Plaintiff was hired to perform secretarial related tasks, which she performed throughout her employment, for a standard 40–hour workweek. (Defs. 56.1 ¶¶ 4, 9, 10.) At Plaintiff's request, they signed immigration documents referring to her as an “accounting consultant” for immigration purposes. (Defs. 56.1 ¶ 7.) In addition, Plaintiff “insisted” that they not pay her the wage set forth in the immigration documents. (Defs. 56.1 ¶ 11.) Moreover, Defendants never threatened to discontinue Plaintiff's immigration sponsorship. (Defs. 56.1 ¶¶ 11–12, 69.) “No one from Best Care Agency, Inc. had ever threatened to call the authorities on Plaintiff, and it was Plaintiff, herself, who wanted to say that she was being [paid] the proffered wage when she clearly never expected to be.” (Defs. 56.1 ¶ 13.) In their signed declarations, De Castro and Jordan stated that they “never threatened to stop Best Care's petition on behalf of Plaintiff if she did not continue to work at her current salary” and “[t]here was no scheme to have Plaintiff continue working for Best Care at a lower salary [than] what she believed she was entitled to.” (De Castrro Decl. ¶ 19; Jordan Decl. ¶ 21.)

In March 2004, De Castro signed the necessary documents prepared by Weinrib on Plaintiff's behalf to obtain an extension of the 11–1B visa. (Pl. 56.1 ¶ 15; Defs. 56.1 ¶ 15.) The documents were submitted to United States Citizenship and Immigration Services (“USCIS”), and the 11–1B visa was extended for the period of April 2004 to March 15, 2007. (Pl. 56.1 ¶¶ 14–15, 17; Defs. 56.1 ¶¶ 14–15, 17.) Plaintiff claims that by signing these documents, Best Care, through De Castro, “certified to the USCIS that it was extending Plaintiff's nonimmigrant working status as it needed her services as an [a]ccounting [c]onsultant,” and proposed to pay Plaintiff a salary of $400 for a...