Ford v. Alfaro, Nos. 85-1615

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore GOODWIN, HUG, and REINHARDT; HUG
Citation785 F.2d 835
Parties27 Wage & Hour Cas. (BN 956, 104 Lab.Cas. P 34,758, 5 Fed.R.Serv.3d 256 Ford B. FORD, Secretary of Labor, United States Department of Labor, Plaintiff- Appellee/Cross-Appellant, v. Hilario ALFARO, Individually and doing business as Fence Masters Contractors, Defendant-Appellant/Cross-Appellee.
Decision Date27 March 1986
Docket NumberNos. 85-1615,85-1825

Page 835

785 F.2d 835
27 Wage & Hour Cas. (BN 956, 104 Lab.Cas. P 34,758,
5 Fed.R.Serv.3d 256
Ford B. FORD, Secretary of Labor, United States Department
of Labor, Plaintiff- Appellee/Cross-Appellant,
v.
Hilario ALFARO, Individually and doing business as Fence
Masters Contractors, Defendant-Appellant/Cross-Appellee.
Nos. 85-1615, 85-1825.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted Feb. 12, 1986.
Decided March 27, 1986.

Page 836

Edward D. Sieger, U.S. Dept. of Labor, Washington, D.C., for plaintiff-appellee/cross-appellant.

Oscar Luna, Fresno, Cal., for defendant-appellant/cross-appellee.

Appeal from the United States District Court for the Eastern District of California.

Before GOODWIN, HUG, and REINHARDT, Circuit Judges.

HUG, Circuit Judge:

This is an appeal and cross-appeal from the district court's bench trial. On the substantive claims, the district court held that two employees were unlawfully discharged in violation of 29 U.S.C. Sec. 215(a)(3) (1982), and that two other employees were not discharged unlawfully. The district court awarded back wages and post-judgment interest, but not at the rate of interest established by 28 U.S.C. Sec. 1961(a) (1982). No pre-judgment interest was awarded. On the procedural claims, the district court sanctioned appellant and his counsel for failing to file timely a pretrial statement and missing a scheduled pretrial conference.

On appeal, defendant-appellant Hilario Alfaro ("Alfaro") contends that the district court abused its discretion in imposing a

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sanction against him for failing to file a pretrial statement and to appear at a scheduled pretrial conference. As a sanction, the district court adopted the Secretary of Labor's pretrial statement as the court's pretrial order. Alfaro argues that the district court's order was issued without affording Alfaro proper notice or opportunity to be heard and that, because of the sanction, he was unable to present a defense due to the preclusive nature of the order.

On cross-appeal, the Secretary of Labor ("Secretary") contends that (1) the district court's finding that two employees were not discharged unlawfully was clearly erroneous; (2) the district court abused its discretion by not increasing the award of back wages to include pre-judgment interest; and (3) the district court abused its discretion by not utilizing the interest rate established by 29 U.S.C. Sec. 215(a)(3) in calculating post-judgment and pre-judgment interest.

For reasons that will be explained in full, we find that Alfaro was not prejudiced by the district court's sanction, and that the Secretary's contentions raised on his cross-appeal have merit. Accordingly, we affirm in part, reverse in part, and remand to the district court for proceedings not inconsistent with this opinion.

I.

FACTS

A. The Sanction

At one time or another during the course of litigation, three attorneys have represented Alfaro. The original attorney of record was Gilbert Lopez, who was succeeded by Joel Murillo. Mr. Murillo first appeared on behalf of Alfaro at the November 8, 1983 status conference. Oscar Luna became involved in the case at the February 9, 1984 depositions of Hilario Alfaro, Romona Alfaro, and Erlinda Martinez.

The district court's sanction stems from counsels' failure to file a pretrial statement before May 10, 1984 and their nonappearance at the May 17, 1984 pretrial conference. The pretrial conference was scheduled by the district court on November 10, 1983. Former E.D.Cal.R. 104(b) required Alfaro to file his pretrial statement at least seven days before the pretrial conference. On May 7, 1984, Lopez and Murillo petitioned the court for a substitution of attorneys. On May 9, 1984, the day before the pretrial statement was due, the court granted the request and substituted Luna for Lopez and Murillo.

All three attorneys failed to request an extension of time to file the pretrial statement or notify opposing counsel and the district court that no one would appear at the May 17 pretrial conference. On May 18, 1984, at the request of the district court, the magistrate, before whom the pretrial conference was scheduled, withdrew approval of the substitution of attorney form as defective because Luna had not signed it, and ordered Lopez and Murillo to file a pretrial statement by May 23, 1984 and to appear at the rescheduled pretrial conference on May 24, 1984. Notice of the magistrate's order was sent, together with notice that the substitution of attorneys had been disapproved, to Lopez on May 18, 1984. Once again, Lopez and Murillo attempted a change in counsel on May 21, 1984, but this request also was defective. On May 22, 1984, the Secretary served by mail a notice of motion for sanctions.

On June 5, 1984, without a hearing, the magistrate concluded that Alfaro's attorneys had been "dilatory" and, accordingly, adopted the Secretary's pretrial statement as the court's pretrial order, and ordered Lopez and Murillo to reimburse $313.83 to the Labor Department to cover its costs for appearance at the scheduled May 17, 1984 pretrial conference. This order was upheld by the district court on July 24, 1984. Alfaro's trial brief eventually was filed four days before the August 28, 1984 bench trial. The monetary sanction award has not been appealed; however, Alfaro contends that the district court's order unduly restricted the scope of his case, and that he was prejudiced by his inability to present

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evidence beyond that which was relied on in the Secretary's pretrial statement.

B. The Unlawful Discharge

Alfaro operates Fence Masters Contractors ("Fence Masters"), a company that installs chain and wood fences. As a construction business engaged in commerce within the definition of 29 U.S.C. Secs. 203(r) and (s)(4) (1982), Fence Masters is covered by the Fair Labor Standards Act ("FLSA"), 29 U.S.C. Sec. 201 et seq. (1982).

On March 24, 1981, a Department of Labor ("Department") compliance officer investigated Fence Masters and noted certain recordkeeping deficiencies. The officer explained to Alfaro that the FLSA required him to maintain detailed records of each employee's address and work schedule. The officer also discussed with Alfaro the FLSA requirements regarding overtime pay when an employee works in excess of 40 hours per week.

In September 1982, Fence Masters was again investigated by the Department. In order to gather additional information pertaining to company compliance with FLSA laws, the Department distributed to company employees questionnaires that requested information about employee work hours and pay rates. In December of that year, four questionnaires were received by the Department, each indicating that the employee worked overtime without being paid at 1 1/2 times the employee's regular hourly wage. On the basis of these questionnaires and follow-up interviews, the Department initiated a full investigation. It was after the investigation commenced that certain employees alleged that they were discharged, or constructively discharged, unlawfully.

As to each allegation of unlawful discharge, the district court made the following findings of fact:

(1) Atanacio Zuniga was employed at Fence Masters for approximately seven years as a fencer. On January 14, 1983, shortly after the Department reopened its investigation of Fence Masters, Alfaro discharged Zuniga. At the time of the discharge, Alfaro accused Zuniga of instituting a complaint with the Department and of causing the investigation to be reopened.

(2) Raul Espino was employed at Fence Masters for approximately five years as a fencer, until his discharge on January 6, 1983. At the time of discharge, Alfaro accused Espino of cooperating with the Department's investigation and of instituting a complaint against Alfaro.

(3) Graciela Zuniga was employed at Fence Masters for one year until April of 1982, and again from mid-December of 1982 to January 14, 1983, as bookkeeper and secretary. Mrs. Zuniga is married to Atanacio Zuniga, who, as indicated above, was discharged on January 14, 1983. On that same day, Alfaro accused Mrs. Zuniga of taking Fence Masters's payroll records to the Department and of conspiring with her husband to file a complaint with the Department against Alfaro. Alfaro stated that the two of them had caused the investigation to be reopened, and that he would get even with them for this act. During this exchange, Alfaro stated that he did not want Mrs. Zuniga to work for him any more. Thereafter, on this same day, Mrs. Zuniga quit her job.

(4) Augustin Guzman worked at Fence Masters as a fencer for approximately eight years. On June 23, 1984, Guzman and Alfaro had a heated exchange: Alfaro threatened Guzman with serious bodily harm after Guzman told Alfaro that he intended to testify in the Government's case against Alfaro. During this incident, Alfaro's son also threatened Guzman and pushed him several times. For the next two weeks, Alfaro's son continued to make threatening remarks and gestures toward Guzman. In addition, Guzman's supervisor and some of the other employees failed to give Guzman sufficient work instructions, which impeded his ability to perform his job. Thereafter, the district court found, Guzman quit his employment on July 7, 1984.

The Secretary brought this action in August 1983, under sections 16(c) and 17 of

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the FLSA, 29 U.S.C. Secs. 216(c) and 217, to enjoin Alfaro, individually and doing business as Fence Masters...

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87 practice notes
  • Veprinsky v. Fluor Daniel, Inc., No. 95-2197
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • June 26, 1996
    ...852 F.2d 619 (1988) (per curiam), and cert. denied, 490 U.S. 1105, 109 S.Ct. 3155, 104 L.Ed.2d 1018 (1989); see also Ford v. Alfaro, 785 F.2d 835, 841 (9th Cir.1986) (threats or acts of physical violence) (FLSA); McLane/Western, Inc. v. NLRB, 723 F.2d 1454, 1456-57 (10th Cir.1983) (threat, ......
  • Price v. Stevedoring Servs. of Am., Inc., No. 08–71719.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 4, 2012
    ...v. Martin, 985 F.2d 470, 472 (9th Cir.1993); see also Saulpaugh v. Monroe Cmty. Hosp., 4 F.3d 134, 145 (2d Cir.1993); cf. Ford v. Alfaro, 785 F.2d 835, 842–43 (9th Cir.1986). “An award of back pay is appropriate to advance Congress' intent to make persons whole for injuries suffered through......
  • Taylor v. Cent. Pa. Drug & Alcohol Serv. Corp., Civ. A. No. 4:CV-93-0993.
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • June 30, 1995
    ...under the rationale that prejudgment and postjudgment interest should be calculated on the same basis. See, e.g., Ford v. Alfaro, 785 F.2d 835, 842 (9th Cir.1986), modified in part by, Davis v. City and County of San Francisco, 976 F.2d 1536, 1557-58 (9th Cir.1992); and Northrop Corp. v. Tr......
  • Winans v. W.A.S., Inc., No. 19970-6-I
    • United States
    • Court of Appeals of Washington
    • August 1, 1988
    ...damages and prejudgment interest in the same suit is not proper. Brock v. Shirk, 833 F.2d 1326, 1331 (9th Cir.1987); Ford v. Alfaro, 785 F.2d 835, 842 (9th Cir.1986). Therefore, the award to the valets should be $32,192.67 in damages plus an additional $32,192.67 in liquidated damages, for ......
  • Request a trial to view additional results
87 cases
  • Veprinsky v. Fluor Daniel, Inc., No. 95-2197
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • June 26, 1996
    ...852 F.2d 619 (1988) (per curiam), and cert. denied, 490 U.S. 1105, 109 S.Ct. 3155, 104 L.Ed.2d 1018 (1989); see also Ford v. Alfaro, 785 F.2d 835, 841 (9th Cir.1986) (threats or acts of physical violence) (FLSA); McLane/Western, Inc. v. NLRB, 723 F.2d 1454, 1456-57 (10th Cir.1983) (threat, ......
  • Price v. Stevedoring Servs. of Am., Inc., No. 08–71719.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 4, 2012
    ...v. Martin, 985 F.2d 470, 472 (9th Cir.1993); see also Saulpaugh v. Monroe Cmty. Hosp., 4 F.3d 134, 145 (2d Cir.1993); cf. Ford v. Alfaro, 785 F.2d 835, 842–43 (9th Cir.1986). “An award of back pay is appropriate to advance Congress' intent to make persons whole for injuries suffered through......
  • Taylor v. Cent. Pa. Drug & Alcohol Serv. Corp., Civ. A. No. 4:CV-93-0993.
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • June 30, 1995
    ...under the rationale that prejudgment and postjudgment interest should be calculated on the same basis. See, e.g., Ford v. Alfaro, 785 F.2d 835, 842 (9th Cir.1986), modified in part by, Davis v. City and County of San Francisco, 976 F.2d 1536, 1557-58 (9th Cir.1992); and Northrop Corp. v. Tr......
  • Winans v. W.A.S., Inc., No. 19970-6-I
    • United States
    • Court of Appeals of Washington
    • August 1, 1988
    ...damages and prejudgment interest in the same suit is not proper. Brock v. Shirk, 833 F.2d 1326, 1331 (9th Cir.1987); Ford v. Alfaro, 785 F.2d 835, 842 (9th Cir.1986). Therefore, the award to the valets should be $32,192.67 in damages plus an additional $32,192.67 in liquidated damages, for ......
  • Request a trial to view additional results

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