Tijerina-Salazar v. Venegas

• Decision Date: 03 June 2022
• Docket Number: PE:19-CV-00074-DC
• Parties: SERGIO TIJERINA-SALAZAR, Plaintiff, v. FERMIN VENEGAS, III, et al., Defendants.
• Court: U.S. District Court — Western District of Texas

SERGIO TIJERINA-SALAZAR, Plaintiff,
v.
FERMIN VENEGAS, III, et al., Defendants.

No. PE:19-CV-00074-DC

United States District Court, W.D. Texas, Pecos Division

June 3, 2022

ORDER

DAVID COUNTS UNITED STATES DISTRICT JUDGE

BEFORE THE COURT are (1) Defendant Venegas Contractors, Inc.'s (“VCI”) Motion for Final Summary Judgment (Doc. 150); (2) Defendant Fermin Venegas Shearing, Inc.'s (“FVS”) Motion for Final Summary Judgment (Doc. 151); (3) Defendant Fermin Venegas, III's (“Venegas”) Motion for Final Summary Judgment (Doc. 152); and (4) Plaintiff Sergio Tijerina-Salazar's (“Plaintiff”) Motion for Partial Summary Judgment (Doc. 153). For the reasons set forth below, Defendant VCI's Motion for Final Summary Judgment is GRANTED (Doc. 150), FVS and Venegas's Motions for Final Summary Judgment are DENIED (Docs. 151, 152), and Plaintiff's Motion for Partial Summary Judgment is DENIED (Doc. 153).

I. Background

A. Facts

This dispute involves Plaintiff's employment for VCI, FVS, and Venegas (collectively, “Defendants”), as an H-2A visa recipient. In 2011, Plaintiff, a Mexican national, contacted Venegas about working for him in the United States. (Doc. 152-9 at 24:14-29:24). To enter the United States, Plaintiff required approval for an H-2A or H-2B visa issued by the United States Department of Labor. 8 U.S.C. §§ 1101(a)(15)(H)(ii)(a), 1188(a). Plaintiff utilized the H-2A visa, with his applications listing “sheep shearing” as among his duties, and omitted any reference to mechanic work. (Docs. 153-24, 153-25). After receiving an H-2A visa, Plaintiff

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entered the United States and began working for Venegas in 2012. (Doc. 152-10 at 15:17-22). Accompanied by additional H-2A applications and approvals, Plaintiff continued to work for Venegas for several more years. (Id.). Plaintiff was allegedly employed by Venegas at all relevant time periods specified in the H-2A visas. (Doc. 47 at 13-16).

Plaintiff's employment under Venegas entailed conducting repairs to machinery and trucks, including caterpillars, forklifts, saws, welding machinery, and wool processing equipment such as energy generators, wool presses, trailer lights, and compressors. (Docs. 152-9 at 44:1719; 152-10 at 55:15-21). Plaintiff's activities in large part consisted of maintenance of equipment used to shear sheep and construct fences. (Doc. 152-9 at 77:3-78:4). Plaintiff conducted most of his work on Venegas's own property. (Docs. 153-3 at 228:10-20; 153-19 ¶ 4). Plaintiff did not shear, assist in the physical act of shearing sheep, or travel to Colorado or Wyoming to shear sheep. (Docs. 153-6 at 42:7-18; 153-13 at 2). Venegas allegedly employed fifty-three (53) other H-2A workers throughout the duration of Plaintiff's employment. (Doc. 47 at 17).

Plaintiff's H-2A visa applications stated that he was to be compensated for his work pursuant to the hourly rate listed on each application. (Docs. 47-1, 47-2, 47-3). The parties dispute whether Plaintiff's employer(s) kept an accurate record of the hours Plaintiff worked per day. (Docs. 151 at 16; 169 at 22). Plaintiff now asserts he was exploited by Defendants in a racketeering scheme which allowed them to pay Plaintiff depressed wages for his work. (Doc. 47 at 1). Plaintiff alleges he was employed to support Venegas's contract fencing business, as opposed to any sheep shearing business, in Texas and New Mexico. (Id. at 13). Plaintiff further alleges Defendants, by enacting a “massive visa fraud” on the United States and himself, benefited financially by only paying Plaintiff the hourly wages required under the H-2A

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applications for “agricultural” work, the adverse effect wage rate (“AEWR”), as opposed to those which Plaintiff claims he should have been paid for “non-agricultural” work, or the higher prevailing wage pursuant to an H-2B visa. (Id. at 2, 6).

B. Procedural History

Plaintiff filed the instant lawsuit on December 19, 2019. (Doc. 1). Plaintiff filed a Second Amended Complaint on April 23, 2021. (Doc. 47). Plaintiff's Second Amended Complaint presents four separate causes of action. (Id.). First, Plaintiff claims Defendants violated the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201, et seq., by failing to pay Plaintiff “at least the minimum wage for all hours worked, ” as well as “the required overtime wages for all hours worked over 40 hours during each week.” (Id. at 19-20). Plaintiff's second federal law claim is for a violation of § 1962(c) of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961, et seq. Plaintiff asserts Defendants operated a RICO enterprise which, through visa fraud as defined by 8 U.S.C. § 1324 and 18 U.S.C. §§ 1351 and 1546, “reduc[ed] their labor costs under a series of annual H-2A visa applications . . . for the unlawful purpose of exploiting foreign laborers for their own financial gain.” (Id. at 22-23). As a related claim, Plaintiff also asserts Defendants conspired to violate § 1962(d) of RICO by engaging in immigration fraud as defined by 8 U.S.C. § 1324 and 18 U.S.C. §§ 1351 and 1546, whereby Defendants “shared among themselves proceeds from [the] exploitation of laborers while [they] all knew that H-2A laborers were only available to [] Defendants due to visa fraud and assignment of unauthorized work.” (Id. at 26-27).

Plaintiff also asserts a state law claim for breach of contract. Plaintiff asserts although he “satisfactorily performed” his duties and responsibilities under his employment contracts, Defendants failed to comply with provisions of the contracts concerning “hours, records, pay,

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work type, earnings statements, FLSA compliance, wages . . ., and reimbursement for travel and related costs.” (Id. at 20-21). In the alternative, Plaintiff alleges a claim for quantum meruit, asserting he is entitled to “the appropriate prevailing wage in effect at the time” of Plaintiff's employment. (Id. at 21-22).

On January 31, 2022, Plaintiff and each Defendant filed cross-motions for summary judgment. (Docs. 150, 151, 152, 153). Defendants also incorporate by reference the grounds raised in each other's motion for summary judgment. However, Defendants fail to identify with detailed particularity what specific grounds they incorporate in the various motions for summary judgment. Accordingly, the Court concludes as a matter of law that Defendants have failed to incorporate by reference any grounds raised independently in each Defendant's summary judgment motion. Plaintiff seeks partial summary judgment, while Defendants request final summary judgment as to all pending claims. All parties have filed responses and replies to their respective motions. (Docs. 162, 166, 169, 170, 174, 175, 176, 186). The summary judgment motions have been fully briefed and are ripe for review.

II. Legal Standard

The purpose of summary judgment is to isolate and dispose of factually unsupported claims or defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). Federal Rule of Civil Procedure 56 allows a party to move for summary judgment when the party contends no genuine issue of material fact remains, and the party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). “A genuine issue of material fact exists when the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Fisk Elec. Co. v. DQSI, L.L.C., 894 F.3d 645, 650 (5th Cir. 2018) (internal quotations omitted); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

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The party seeking summary judgment bears the initial burden of informing the court of its motion and identifying “depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials” that demonstrate the absence of a genuine issue of material fact. Fed.R.Civ.P. 56(c)(1)(A); Celotex, 477 U.S. at 323. The “movant bears the burden of identifying those portions of the record it believes demonstrate the absence of a genuine issue of material fact.” Triple Tee Golf, Inc. v. Nike, Inc., 485 F.3d 253, 261 (5th Cir. 2007) (citing Celotex, 477 U.S. at 322-25). If the movant bears the burden of proof on a claim or defense for which it is moving for summary judgment, it must come forward with evidence that establishes “beyond peradventure all of the essential elements of the claim or defense.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986).

If the burden of proof at trial lies with the nonmoving party, the movant may satisfy its initial burden by “showing-that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case.” Celotex, 477 U.S. at 325; Byers v. Dall. Morning News, Inc., 209 F.3d 419, 424 (5th Cir. 2000). While the party moving for summary judgment must demonstrate the absence of a genuine issue of material fact, it does not need to negate the elements of the nonmovant's case. Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005) (citation omitted). “If the moving party fails to meet [its] initial burden, the motion [for summary judgment] must be denied, regardless of the nonmovant's response.” United States v. $92, 203.00 in U.S. Currency, 537 F.3d 504, 507 (5th Cir. 2008) (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc)).

After the moving party has met its burden, to “avoid a summary judgment, the nonmoving party must adduce admissible evidence which creates a fact issue concerning the

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existence of every essential component of that party's case.” Thomas v. Price, 975 F.2d 231, 235 (5th Cir. 1992). The party opposing summary judgment cannot merely rely on the contentions contained in the pleadings. Little, 37 F.3d at 1075. Rather, the “party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise...