Bucco v. W. Iowa Tech Cmty. Coll.
| Decision Date | 01 March 2022 |
| Docket Number | C21-4001-LTS |
| Parties | JACQUELINE DE BRITTO BUCCO, et al., Plaintiffs, v. WESTERN IOWA TECH COMMUNITY COLLEGE, et al., Defendants. |
| Court | U.S. District Court — Northern District of Iowa |
This case is before me on motions (Docs. 87, 90, 93, and 98) to dismiss[1] filed by defendants Premier Services, Inc. d/b/a J&L Enterprises and d/b/a J&L Staffing and Recruiting (J&L) and Nancy Albrecht (together, the J&L defendants); Tur-Pak Foods, Inc. (Tur-Pak); Royal Canin USA, Inc. (Royal Canin); and Juline Albert, Rosana Salgado Burright, Lilly Castro, Terry Murrell, Terry Yi James Zuercher and Western Iowa Tech Community College (WITCC) (together, the WITCC defendants). Plaintiffs have filed resistances (Docs. 108, 109, 110 and 111) and defendants have filed replies. See Docs. 114, 119, 120 and 123. Plaintiffs have also filed a notice (Doc. 106) of voluntary dismissal in which some plaintiffs dismiss certain claims against certain defendants. Oral argument is not necessary. See Local Rule 7(c).
The following allegations from the Second Amended Complaint (SAC) (Doc. 79) are accepted as true for purposes of the motions to dismiss:
Plaintiffs are citizens of Brazil and participants in the J-1 visa program at WITCC. They allege that representatives of WITCC and J&L, including Burright (International Education Institute Specialist at WITCC), Albrecht (J&L Account Executive) and Albert (WITCC Vice-President) told plaintiffs that the J-1 visa program was a two-year program in which they would study at WITCC and complete internships overseen by J&L, which would be related to their field of study and at which they would work no more than 32 hours per week. On February 21, 2019, Burright created a Facebook post directed to potential J-1 visa program students that stated the study programs offered were (1) robotics and industrial automation and (2) culinary arts. She used the fact that she is Brazilian to influence plaintiffs and lead them to believe the program was legitimate. During the recruitment, application and interview process, Burright sent written correspondence to plaintiffs stating that J&L would place with them various “business/partners” for internships and that the students could not be called “workers” or use the words “salary” or “wages.” The June 3, 2019, acceptance letters to plaintiffs indicated they would not be responsible for the cost of tuition, fees, housing or supplies and that meals would be provided at WITCC. The letters stated plaintiffs would receive internships in their field of study, described the tasks that were associated with those positions and listed the particular skills they would be able to perform after graduation.
In late spring/early summer of 2019, WITCC determined that J&L's involvement in the visa program could result in logistical problems, so Burright contacted plaintiffs via electronic messages and phone calls to instruct them to destroy all documents related to J&L and not to mention J&L during their visa interviews. However, it was clear to plaintiffs that J&L would still be actively involved. The formal invitation letters sent to plaintiffs fraudulently stated: Doc. 79 at ¶ 37 (citing Doc. 79-10).
Plaintiffs arrived in the United States between July and September 2019. They were assigned housing by WITCC, to which WITCC representatives had full access at any time and were allowed to enter without plaintiffs' authorization. Plaintiffs were assigned jobs at either Royal Canin or Tur-Pak. Royal Canin manufactures high-end pet food and Tur-Pak packages and assembles food products. J&L employed all plaintiffs while Royal Canin and Tur-Pak also acted as employers for the plaintiffs who worked at each respective plant. Plaintiffs state the full nature of plaintiffs' employment is unknown at this time, but it is believed that J&L had an employer-employee relationship with plaintiffs and that Tur-Pak and Royal Canin may have been joint employers. During the recruitment process, Burright told plaintiffs that J&L would manage the places they were assigned to work and would determine how much plaintiffs earned. J&L, together with Royal Canin and Tur-Pak, placed plaintiffs in their job positions, supervised their work and had the power to hire and fire them. Plaintiffs began their jobs at various times between August and December 2019. Those jobs had no educational value and were completely unrelated to their intended fields of study.
The plaintiffs working at Royal Canin were told they were not allowed to work with any kind of technology or computers, even though WITCC and J&L promised to provide them with this type of work experience. Royal Canin also told plaintiffs that as J&L employees, they were not authorized to operate machinery or computers, but only to perform manual labor.
During the recruitment process, WITCC and J&L representatives told plaintiffs they would work no more than 32 hours a week. Plaintiffs state they were regularly expected to work up to 56 hours per week and that Burright told them if they were unable to work due to illness, they would be removed from the visa program. She also warned that if they did not work, “they” would not be able to afford food. Doc. 79 at ¶ 48. Yi threatened plaintiffs with deportation if they did not work. Royal Canin and Tur-Pak paid $15 per hour for the labor plaintiffs provided, yet plaintiffs received only $7.25 per hour. The rest of their earnings went to WITCC and J&L. J&L would receive the funds from Royal Canin and Tur-Pak, pay WITCC and distribute the remainder to plaintiffs.
In October 2019, plaintiffs complained to Burright and Albert about not receiving the appropriate amount of overtime pay. Albert responded that she did not know why WITCC was receiving part of plaintiffs' overtime pay, and that it was a mistake, but did not correct the situation. Royal Canin paid $22.50 in overtime to J&L and plaintiffs received only $10.88 per hour of overtime pay. If a plaintiff obtained work outside the internship, WITCC asked that plaintiffs pay $250.00 towards room and board.
Plaintiffs were enrolled in classes at WITCC in the fall semester of 2019 but were segregated from the general student population and took classes only with other Brazilians and Chileans who were part of the J-1 visa program. Plaintiffs made repeated complaints to Burright about the program in fall 2019 and began trying to schedule meetings with Albert. Plaintiff Reis was able to secure a meeting and other J-1 students submitted questions through him about how long they would have to work to pay off their debt to WITCC and complaints about their work environment.
In November 2019, the United States Department of State investigated the J-1 visa program at WITCC and interviewed several participating students. Burright had coached plaintiffs on the appropriate answers to give, including making no mention of J&L or its involvement with the J-1 visa program. She also told them to report they were healthy and well and taken to the doctor when necessary. The State Department determined that plaintiffs' jobs were not proper J-1 visa program training placements and thus they could no longer work at Royal Canin and Tur-Pak. Burright told plaintiffs they could not work outside of WITCC. Because they were no longer working, plaintiffs did not have money to buy food and WITCC instructed them to utilize local food pantries. In late fall and early winter of 2019, Burright drove plaintiffs to pantries to collect donated food.
Plaintiffs' credit at WITCC's cafeteria was suspended and they sometimes went to local churches for meals. Plaintiffs Coutinho and Soares sold blood plasma for money to buy food and necessities. Plaintiffs did not have the funds to return to Brazil on their own. They asked Burright for an accounting of how much they owed to WITCC and how much they had already paid for their work with J&L at Royal Canin and Tur-Pak, but Burright refused to provide this information. In a November 18, 2019, WhatsApp message, Burright stated that WITCC had no obligation to be accountable to plaintiffs for the amount they owed. She admitted that some of the deductions should not have been made. Plaintiffs were never reimbursed or given further explanation.
At a January 2020 meeting with WITCC representatives, Albert and Burright continued to refuse to answer plaintiffs' questions about overtime pay they were due, informed plaintiffs they would not earn a degree they had been promised and instructed that they would have to work for WITCC in whatever capacity WITCC chose at $7.25 per hour. Plaintiffs with jobs outside of WITCC were ordered to quit those jobs. WITCC ended the visa program in January 2020 and asked the students to vacate student housing in February and March of 2020.
The SAC describes circumstances unique to each of the 10 individual plaintiffs, including how they heard about the visa program, their intended fields of study, representations made to them about the program by WITCC and J&L representatives, where they worked, the nature of their work, their hours and pay and when they left WITCC housing.[2] See Doc. 79 at 12-45. The following claims from the SAC remain following plaintiffs' voluntary dismissal (Doc. 106) of some claims:
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