Centeno-Bernuy v. Becker Farms

Citation564 F.Supp.2d 166
Decision Date17 June 2008
Docket NumberNo. 01-CV-839A.,01-CV-839A.
PartiesRuben Victor CENTENO-BERNUY, et al., Plaintiffs, v. BECKER FARMS, et al., Defendants.
CourtU.S. District Court — Western District of New York

Erin Flyhn Casey, Molly L. Graver, Farmworker Legal Services of New York, Inc., Rochester, NY, for Plaintiffs.

Thomas P. Kawalec, Michael J. Chmiel, Chelus, Herdzik, Speyer & Monte, P.C., Buffalo, NY, for Defendants.

ORDER

RICHARD J. ARCARA, Chief Judge.

This case was referred to Magistrate Judge H. Kenneth Schroeder, Jr., pursuant to 28 U.S.C. § 636(b)(1), on January 24, 2002. On April 29, 2005, the parties filed cross-motions for summary judgment. On August 1, 2007, Magistrate Judge Schroeder filed a Report and Recommendation, recommending that: (1) plaintiffs' motion for summary judgment be granted with regard to the defendants' affirmative defense and counterclaim for breach of contract; and (2) defendants' motion for summary judgment be granted with regard to plaintiffs' claim under the Migrant and Seasonal Agricultural Worker Protection Act ("AWPA") and plaintiffs' claim for overtime under the New York Labor Law, but denied with regard to plaintiffs' remaining claims.

Plaintiffs filed objections to the Report and Recommendation on August 14, 2007. Oral argument on the objections was held on May 22, 2008.

Pursuant to 28 U.S.C. § 636(b)(1), this Court must make a de novo determination of those portions of the Report and Recommendation to which objections have been made. Upon a de novo review of the Report and Recommendation, and after reviewing the submissions and hearing argument from counsel, the Court adopts the proposed findings of the Report and Recommendation, with one exception. With regard to plaintiffs' claim for overtime under the New York Labor Law, instead of adopting the Magistrate Judge's recommendation that such claim be dismissed, the Court hereby declines to exercise supplemental jurisdiction over such claim as it raises a novel issue of state law. See 28 U.S.C. § 1367(c)(1). The parties have not cited nor has the Court found any case, federal or state, directly addressing the issue of whether a farm worker who performs both farm work and non-farm work is entitled to overtime under the New York Labor Law. The Court finds that this issue is better addressed by the state courts in the first instance.1

Accordingly, for the reasons set forth in Magistrate Judge Schroeder's Report and Recommendation and herein, the Court: (1) grants plaintiffs' motion for summary judgment on defendants' affirmative defense and counterclaim for breach of contract; (2) grants defendants' motion for summary judgment on plaintiffs' AWPA claim; (3) declines to exercise supplemental jurisdiction over plaintiffs' claim for overtime under the New York Labor Law and dismisses such claim, without prejudice; and (4) denies defendants' motion for summary judgment with regard to plaintiffs' remaining claims.

Counsel shall appear on July 2, 2008, at 9:00 a.m., for a meeting to set a trial date.

SO ORDERED.

REPORT, RECOMMENDATION AND ORDER

H. KENNETH SCHROEDER, JR., United States Magistrate Judge.

This matter was referred to the undersigned by the Hon. Richard J. Arcara, in accordance with 28 U.S.C. § 636(b), for all pretrial matters and to hear and report upon dispositive motions. Dkt. # 4.

Plaintiffs are four nonimmigrant agricultural workers suing their former employer, Becker Farms, which is operated by Oscar and Melinda Vizcarra, for violations of the Fair Labor Standards Act ("FLSA"), the Migrant and Seasonal Agricultural Worker Protection Act ("AWPA"), New York Labor Law, New York Real Property Law, New York Human Rights Law and for breach of contract. Dkt. # 71, Exh. B. The breach of contract action arises from alleged violations of the terms and conditions imposed upon agricultural employers of nonimmigrant foreign workers pursuant to the H-2A program set forth in 8 U.S.C. § 1188 and 20 C.F.R. § 655.100 et seq., which are commonly referred to as the Wagner-Peyser Act.

Currently before the Court is: (1) plaintiffs' motion (Dkt.# 69), for summary judgment dismissing defendants' counterclaim alleging that plaintiffs breached their employment contract with defendants by leaving the job early and striking defendants' sixth and seventh affirmative defenses which allege that plaintiffs failed to meet the minimum productivity and quality standards set forth in the contract; and (2) defendants' motion (Dkt.# 70), for summary judgment dismissing the complaint. For the reasons that follow, it is recommended that plaintiffs' motion be GRANTED and defendants' motion be GRANTED IN PART and DENIED IN PART.

BACKGROUND

Becker Farms is located in the Town of Hartland in Niagara County, New York. Dkt. # 71-2, ¶ 1. The property totals approximately 340 acres, approximately 140 of which are used for farming. Dkt. # 71 Exh. M, p. 32. Becker Farms grows strawberries, raspberries, blueberries, cherries, sweet corn, vegetables, pumpkins and apples for sale to customers who pick such produce themselves or purchase the produce at Becker Farms' retail store. Dkt. #71, Exh. M, p. 32; Dkt. #71-2, ¶ 2. Becker Farms also produces baked goods, jams, jellies and apple cider from its own produce, which it sells at the retail store on its premises. Dkt. # 71-2, ¶ 2. In addition, Becker Farms hosts company picnics and organizes pig races, pony rides, a petting zoo and seasonal events, such as a "strawberry extravaganza," "raspberry jamboree," and "pumpkin fiesta," including a corn maze and haunted hayride, to attract customers to the premises. Dkt. #69-3, ¶ 5; Dkt. #71, Exh. M, p. 37. For example, Oscar Vizcarra testified that the pumpkin festival, which runs during the weekends in September and October, drew approximately 5,000 to 8,000 people during 2001. Dkt. #79-19, pp. 6 & 10. Sally Ann Kneepel, an employee at Becker Farms, testified that beginning in 1999, corporate picnics were scheduled approximately once a week during the summer. Dkt. # 79-23.

Becker Farms sells some of its apples to wholesalers such as Bucolo Cold Storage, H.H. Dobbins and Mayer Brothers. Dkt. # 71-1, ¶ 4; Dkt. # 79-39; Dkt. # 70-40; Dkt. # 70-41; Dkt. # 70-42. These companies sell their product outside of New York. Dkt. # 112, Exh. 1.

Becker Farms has maintained a web site since August, 1998 which offers, inter alia, to ship apples, jams and jellies anywhere in the continental United States. Dkt. # 112, Exh. 1. However, Melinda Vizcarra avers that during the time period relevant to this lawsuit, Becker Farms "did not deliver its produce, fruits, vegetables, baked goods, jams, jellies, or eider outside of New York." Dkt. #71-4, ¶ 3. Oscar Vizcarra also avers that Becker Farms did not "engage in any retail sales over the internet" between 1997 and 2001. Dkt. #89, ¶ 11. Becker Farms has also advertised on local radio stations which broadcast into Pennsylvania and Canada and through New York's Board of Tourism. Dkt. # 112. However, Oscar Vizcarra avers that its advertising "did not target potential customers outside of the Western New York area or the borders of New York State." Dkt. #89, ¶ 10.

Between 1996 and 2001, defendants requested permission and were subsequently approved to hire non-immigrant foreign workers pursuant to the H-2A program set forth in 8 U.S.C. § 1101(a)(15)(H)(ii) (a). Dkt. # 69-3, ¶ 8; Dkt. # 71, Exh. D. This program permits agricultural employers to hire nonimmigrant aliens as workers if they first obtain a certification from the United States Department of Labor that there are insufficient domestic workers who are willing, able, and qualified to perform the work at the time and place needed and that the employment of these aliens will not adversely affect the wages and working conditions of domestic workers. See 8 U.S.C. § 1188(a)(1). To ensure that employment of H-2A workers does not adversely affect the wages and working conditions of domestic workers, regulations require that employers compensate H-2A workers at a rate not less than the higher of the federal minimum wage, the prevailing wage rate in the area, or the adverse effect wage rate.1 20 C.F.R. § 655.102(b)(9). Numerous other regulations address, inter alia, payment of transportation and subsistence costs, housing, and record keeping. 20 C.F.R § 655.102(b).

Defendants hired four H-2A workers each year from 1996 through 2001. Aff. of Oscar Vizcarra, dated 4/29/2005, ¶ 3.2 Plaintiff Ruben Centeno-Burnuy was hired to work at defendants' farm as an H-2A worker during the 1997 through 2001 growing seasons. Dkt. #69-3, ¶ 2; Dkt. #71-2, ¶ 9. Plaintiffs Waldo Centeno-Burney and Joel Efrain Pecho-Vivanco were hired to work at defendants' farm as H-2A workers during the 1998 through 2001 growing seasons. Dkt. #69-3, ¶ 3; Dkt, #71-2, ¶ 9. Plaintiff Aquiles Galindo-Buendia was hired to work at defendants' farm as an H-2A worker during the 2000 and 2001 growing seasons. Dkt. #69-3, ¶ 4; Dkt. #71-2, ¶ 9.

The Clearance Orders3 issued by the United States Department of Labor incorporate the regulatory requirements, providing that:

A copy of the Work Agreement and/or Job Order shall be posted in the labor camp and be made available. A copy of the Job Clearance Order will be provided to the worker no later than the day on which the worker begins employment. The employer assures that the working conditions of this order comply with the applicable Federal and State employment related laws and agrees to abide by the regulations at 20 CFR 655.103, Assurances and 20 CFR 653.501.

Dkt. # 71, Exh. D. The Clearance Orders further provide that:

(a) An hourly rate of not less than the Federal or State minimum wage, the current AEWR, the prevailing hourly rate, or the employer's hourly rate, whichever is highest, is guaranteed to the worker for the period of employment .... The employer agrees to pay all workers ... the ... AEWR when it is established.

* * *

(c) Employer will maintain...

To continue reading

Request your trial
12 cases
  • Jemine v. Dennis
    • United States
    • U.S. District Court — Eastern District of New York
    • September 28, 2012
    ...(quoting P & L Group, Inc. v. Garfinkel, 150 A.D.2d 663, 541 N.Y.S.2d 535, 537 (2d Dep't 1989)); see also Centeno–Bernuy v. Becker Farms, 564 F.Supp.2d 166, 181 (W.D.N.Y.2008) (“[W]illfulness [for purposes of liquidated damages] is warranted if substantial evidence tends to demonstrate that......
  • Santillan v. Henao
    • United States
    • U.S. District Court — Eastern District of New York
    • September 30, 2011
    ...(quoting P & L Group, Inc. v. Garfinkel, 150 A.D.2d 663, 541 N.Y.S.2d 535, 537 (2d Dep't 1989)); see also Centeno–Bernuy v. Becker Farms, 564 F.Supp.2d 166, 181 (W.D.N.Y.2008) (“[W]illfulness [for purposes of liquidated damages] is warranted if substantial evidence tends to demonstrate that......
  • Dean v. Pac. Bellwether, LLC
    • United States
    • U.S. District Court — Northern Mariana Islands
    • February 6, 2014
    ...] cleaning supplies and equipment ... from out-of-state vendors” sufficient to satisfy commerce requirement); Centeno–Bernuy v. Becker Farms, 564 F.Supp.2d 166, 175 (W.D.N.Y.2008) (using website to offer to ship products outside of state is one reason, amongst three, supporting conclusion t......
  • Sejour v. Steven Davis Farms, LLC, Case No. 1:10–cv–96–MW/GRJ.
    • United States
    • U.S. District Court — Northern District of Florida
    • July 1, 2014
    ...as “any day during which an employee performs any agricultural labor for not less than one hour.” Centeno–Bernuy v. Becker Farms, 564 F.Supp.2d 166, 177 (W.D.N.Y.2008) (quoting 29 U.S.C. § 203(u)). “The regulations note that ' 500 man-days is approximately the equivalent of seven employees ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT