Wednesday, August 12, 2009, 12:29 PM

Novel Retaliation Case

Family law met the Fair Labor Standards Act in Centeno-Burnuy v. Becker Farms. In November 2001, four plaintiffs - Ruben Centeno-Burnuy, Waldo Centeno-Burnuy, Aquiles Galindo-Buendia and Joel Pecho-Vivanco - filed an FLSA action against Becker Farms and its owners, Oscar and Melinda Vizcarra, in US District Court in Buffalo NY. The litigation was finally settled in August 2009. Meanwhile, back at the farm, the four plaintiffs had another row to hoe: In June 2003, they filed a separate suit in the same court, asserting they had been retaliated against by Donald A. Perry - father of Melinda Vizcarra and father-in-law of Oscar Vizcarra. Neither the Vizcarras nor Becker Farms were named in the second complaint. Plaintiffs' attorneys in both cases were lawyers with Farmworker Legal Services of New York, who also associated two different Rochester attorneys for the two cases. While Becker Farms and the Vizcarras retained counsel in the first case, Donald Perry, the sole defendant in case number two, represented himself.

Becker Farms has been operated as a family farm in Niagara County, NY for four generations or more. Perry "lives on a two-and-a-half-acre plot in the middle of the 340 acre farm." The farm was granted permission to hire non-immigrant foreign workers under the H-2A visa program, and hired four each year from 1996 through 2001; the four plaintiffs, all Peruvian nationals, worked there through the growing seasons of some or all of that time period. Beginning in 2000, plaintiffs were in contact with the legal services organization, and left the farm's employ in November 2001, immediately following which they began litigation.

Perry then called the Immigration and Naturalization Service to complain that the organization "had aided and abetted these illegal aliens in absconding from Becker Farms." When Perry was warned that his actions were unlawful, Perry's response was not conciliatory: The course of events, so close after the September 11, 2001 international terrorist incidents, led Perry to conclude "that there was something very strange going on," "that these men are here for no good," and that the plaintiffs were "sympathizers of Sendaro Luminoso," the Peruvian group better known in the US by its English name, Shining Path. He then embarked on a multimedia campaign against the plaintiffs and their attorneys, also making complaints to state and federal law enforcement and regulatory agencies. He coupled these activities with hounding and harassing an employee of another organization, Rural Opportunities Inc., notwithstanding both a preliminary injunction against Perry and his conviction for criminal contempt.; he even continued to pursue her after she left Rural Opportunities' employ.

On July 14, 2009, Magistrate Judge L. Kenneth Schroeder issued an order recommending that Perry be found liable for retaliation - accusations for which Perry had proffered no real defense - but denying plaintiffs' request that the injunction be made permanent. On August 5, District Judge Richard Arcara adopted the recommendations and set a hearing for August 28 to select a trial date.

Trial may be somewhat anticlimactic. The remedies for FLSA retaliation other than injunctive relief sometimes can include damages for emotional distress and mental anguish, and if the case goes to a jury, particularly if Perry continues to represent himself, the outcome could be qute unfavorable to him. Note that Judges Schroeder and Arcara did not have to rely on the definition of "employer" in the statute - the "acting in the interest of en employer with respect to an employee" language we discussed in a recent post - because the prohibition of retaliation in FLSA's Section 15(a)(3) extends to "any person," thus rendering irrelevant Perry's contention that he "is not an agent of Becker Farms and has never owned or operated Becker Farms." Additionally, prevailing plaintiffs can expect to recover their attorneys' fees and costs. Mr. Perry's conduct would seem to have produced a bit more than he counted on. Centeno-Burnuy v. Perry, W.D.N.Y. No. 03-CV-457.


Anonymous Charlie Edwards said...

On September 9, 2009, the Court entered an order closing the case. Although the findings of retaliation were reiterated, plaintiffs had dropped their claim for money damages. What could have been a complete disaster for the defendant is no longer a financial liability.

September 16, 2009 at 5:12 PM  
Blogger Brian said...

Interesting blog post. The courts are always refining the meaning and the scope of the labor laws in the states and federal government, particularly the FLSA. The number of workers, their legal immigration and when they are scheduled isn't just an issue for farms. Factories need to maintain scheduling and legal compliance and they can get software to implement engineered labor standards which is important to maintain legal compliance and maximize productivity. has the best software in this regard.

September 28, 2010 at 3:07 PM  

Post a Comment

Links to this post:

Create a Link

<< Home

back to top