Murillo et al v. DillardMOTION for Partial Summary JudgmentW.D. Ky.June 2, 2017UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF KENTUCKY BOWLING GREEN DIVISION __________________________________________ ) MARTIN RICO MURILLO, et al., ) ) Plaintiffs, ) ) vs. ) Civil Action No. 1:15-cv-69-GNS ) Judge Stivers TRACY DILLARD, BRUCE DILLARD, ) Magistrate Judge Brennenstuhl and CAROLYN DILLARD, ) ) Defendants. ) _________________________________________ ) PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT AGAINST DEFENDANTS BRUCE AND CAROLYN DILLARD Plaintiffs (“Farmworkers”) are among a group of agricultural guestworkers from Mexico who were imported for employment on Defendants’ tobacco farm in 2014. By this motion, the Farmworkers seek to resolve the majority of claims against Defendants Bruce and Carolyn Dillard (hereinafter “Defendants”) raised in this lawsuit.1 The Farmworkers move for summary judgment on the following issues: Defendants were employers under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., and under their H-2A contracts; Defendants violated the FLSA and breached their contracts with the Farmworkers by failing to reimburse pre- employment expenses during the first workweek; and Defendants failed to pay FLSA minimum and contractually-required wages for piece-work tasks of cutting, loading, and stripping tobacco. 1 The Farmworkers do not seek partial summary judgment on their claims against Defendant Tracy Dillard because their claims against him are subject to the automatic stay of his bankruptcy petition. See 11 U.S.C. § 362(a); Def. Tracy Dillard’s Suggestion of Bankr. & Notice of Stay (Doc. 80); Notice of Defs. Bruce & Carolyn Dillard Withdrawing Req. to Stay Case as a Whole (Doc. 82). This motion is directed to and is meant to be binding on only Defendants Bruce and Carolyn Dillard. Plaintiffs have separately filed motions for partial summary judgment to resolve the counterclaims asserted by Defendant Tracy Dillard, which are not stayed by his bankruptcy, and most of the affirmative defenses of Defendants Bruce and Carolyn Dillard. Case 1:15-cv-00069-GNS-HBB Document 89 Filed 06/02/17 Page 1 of 40 PageID #: 836 INTRODUCTION Plaintiffs are 24 migrant farmworkers who entered the United States in 2014 to work for Defendants on their family tobacco farm pursuant to H-2A guestworker visas obtained by Tracy Dillard. The Farmworkers’ claims arise out of their employment by Defendants during the 2014- 2015 tobacco season. Although Defendants have denied that they were the Farmworkers’ employers, Am. Ans. to 3rd Am. Compl. ¶¶ 55−59 (Doc. 70), the Farmworkers will demonstrate that, under the applicable legal standards for employer status under the FLSA and the Farmworkers’ H-2A employment contracts, Bruce and Carolyn Dillard were their employers. The Farmworkers will further show that they were not properly paid under the FLSA and their H-2A contracts, which required minimum wages of $7.25 per hour and $10.10 or $10.28 per hour respectively, during the parts of the season when the Farmworkers were paid on a piece rate (per tobacco stick cut or stripped). The undisputed facts show that Defendants did not properly record the number of hours the Farmworkers worked during these parts of the season paid by the stick and that, due to the high number of hours the Farmworkers worked, their average hourly wages often dropped below the contractual hourly rate of $10.10 or $10.28 and even below the FLSA rate of $7.25. Finally, the Farmworkers have proven that they incurred numerous costs that were primarily for Defendants’ benefit, such as the costs of their visas and transportation from their home villages to Defendants’ farm in Kentucky, which operated as de facto deductions from their wages, and that Defendants did not fully reimburse those costs during the Farmworkers’ first week of work, as required by law and which Defendants knew was their obligation. STANDARD OF REVIEW Summary judgment “shall” be granted “if the movant shows that there is no genuine Plaintiffs’ Motion for Partial Summary Judgment Page 2 o Case 1:15-cv-00069-GNS-HBB Document 89 Filed 06/02/17 Page 2 of 40 PageID #: 837 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The Sixth Circuit has set out the familiar standard for evaluating a motion for summary judgment as follows: Summary judgment is proper if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. In considering a motion for summary judgment, the court must view the evidence and draw all reasonable inferences in favor of the non-moving party. The essential question is whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law. The court considering a motion for summary judgment must consider the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, in the light most favorable to the party opposing the motion. We must also be mindful of the fact that we cannot weigh the evidence or make credibility determinations. Troche v. Crabtree, 895 F.3d 795, 798 (6th Cir. 2016) (internal citations and quotation marks omitted); accord Kennedy v. Settles, Civ. No. 10-99-HRW, 2014 WL 1621999, at *2–*3 (E.D. Ky. Apr. 22, 2014) (setting forth the standard for reviewing a motion for summary judgment), report & recommendation adopted, Kennedy v. Settles, Civ. No. 10-99-HRW, 2014 WL 2801265 (E.D. Ky. June 3, 2014). The initial burden is on the moving party to identify those portions of the record that “it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotations omitted). When the motion is supported by documentary proof such as deposition and affidavits, the nonmoving party may not simply rest on his pleadings but, rather, must present some “specific facts showing that there is a genuine issue for trial.” Celotex, 477 U.S. at 322; Eastham v. Chesapeake Appalachi, LLC, 754 F.3d 356, 360 (6th Cir. 2014). The nonmovant must “do more than simply show that there is some metaphysical doubt as to the material facts.” Amini v. Oberlin Coll., 440 F.3d 350, 357 (6th Cir. 2006) (internal quotation omitted). Plaintiffs’ Motion for Partial Summary Judgment Page 3 o Case 1:15-cv-00069-GNS-HBB Document 89 Filed 06/02/17 Page 3 of 40 PageID #: 838 STATEMENT OF UNDISPUTED FACTS2 Defendants Bruce and Carolyn Dillard operate a farm near Fountain Run, Kentucky along with their son, Tracy. Facts 1-3. Doing business as Tra-Ken Farms, the Dillards produce a number of crops. One of the crops they produced for the period from 2013 through 2015 was tobacco. Fact 4. Bruce and Tracy Dillard “made 90 percent of the decisions” on the farm together. Fact 10. Burley tobacco production includes several labor-intensive stages. The first phase of tobacco production requires planting and topping the tobacco crop, tasks for which the Dillards hired eight H-2A workers. Fact 43. As the crop matured, the farm’s labor needs increased, with the Dillards employing an additional 22 workers to help harvest or cut the tobacco leaves and place them on sticks, six per stick. Fact 2. After a brief period of drying the leaves in the sun (“curing”), the same workers loaded the sticks of tobacco into wagons and transported them to barns, where they were hoisted and hung. Facts 17, 18. After curing in the barn for several weeks, the sticks are lowered, after which the workers strip the leaves from the tobacco plants and sorted by grade. Facts 20, 22, 23. The Dillards long relied on local workers to perform these labor-intensive tasks. In recent years, as the supply of local labor declined, the Dillards sought to hire foreign workers. Fact 5. Under the Immigration and Nationality Act, an agricultural employer may apply for admission of foreign guestworkers to fill seasonal labor shortages, a system commonly referred to as the H-2A program. Rosario-Guerrero v. Orange Blossom Harvesting, Inc., 265 F.R.D. 619, 622 (M.D. Fla. 2010). Guestworkers admitted in this fashion are often referred to as “H-2A workers.” Figueroa- 2 Plaintiffs have created a separate Statement of Undisputed Facts, with citation to the record, providing greater detail for some of the facts and evidence outlined herein. These facts will be cited as “Fact ___.” The Statement of Undisputed Facts is attached as Ex A to Ex. 1, Declaration of Lakshmi Ramakrishnan ¶ 8. The excerpted deposition testimony of Bruce Dillard, Carolyn Dillard, and Tracy Dillard, in support of the Statement of Undisputed Facts, is also attached as Ex. A to Ex. 1, ¶ 8. Plaintiffs’ Motion for Partial Summary Judgment Page 4 o Case 1:15-cv-00069-GNS-HBB Document 89 Filed 06/02/17 Page 4 of 40 PageID #: 839 Cardona v. Sorrells Bros. Packing Co., No. 2:05-cv-601, 2007 WL 672303, at *1 (M.D. Fla. Feb. 14, 2007). To help meet the labor needs for the Dillards’ farm for the 2014 tobacco season, Tracy Dillard submitted two separate requests to employ foreign guestworkers on the Dillards’ farm. Am. Ans. to 3rd Am. Compl. ¶¶ 18, 19, 22, 23 (Doc. 70); Ex. 1, Decl. of Lakshmi Ramakrishnan (hereinafter “Ramakrishnan Decl.”) ¶ 9 & Ex. B (Tracy Dillard Resp. to Reqs. for Admissions No. 2). The first application requested admission of eight workers to be employed from May 10, 2014 through February 28, 2015. Am. Ans. to 3rd Am. Compl. ¶ 18 (Doc. 70). A second application sought 22 additional foreign workers for employment between July 15, 2014 and February 28, 2015. Id. at ¶ 19; Fact 7; Ex. 1, Ramakrishnan Decl. ¶ 10 & Ex. C (Tracy Dillard ETA 790’s and 9142A’s). Plaintiff Farmworkers were among the Mexican nationals who were issued H-2A guestworker visas and came to work on the Dillards’ farm as a result of these applications.3 Ex. 1, Ramakrishnan Decl. ¶ 9 & Ex. B (Tracy Dillard Resp. to Reqs. for Admissions Nos. 14, 17, 19, 21, 22, 25, 26); Am. Ans. to 3rd Am. Compl. ¶ 9 (Doc. 70). Although Defendants submitted these applications in the name of Tracy Dillard, the decision to use the H-2A program was jointly made with Bruce and Carolyn Dillard, and it was Defendants’ intention from the beginning to use the Farmworkers’ labor to plant and harvest Bruce Dillard’s tobacco crops. Facts 6, 8, 9. The Farmworkers each incurred a number of expenses as prerequisites to obtaining their visas and going to work on the Dillard’s farm in 2014. Each Plaintiff traveled from his home 3 Plaintiffs Pantaleon Alvarez Cervantes, Agustin Andres Juana, Ageo Avelino Naez, Hector Santiago Bautista, J. Guadalupe Avelino Naez and Zenobio Cervantes Gumecindo were issued visas on the first of the two temporary labor certification applications and were admitted in May, 2014 as H-2A workers. The remaining Plaintiffs were admitted on the second application and were issued visas and entered the United States on August 14, 2014 to begin work for on the Dillards’ farm. See Ex. 1, Ramakrishnan Decl. ¶ 11 & Ex. D (copies of the Farmworkers’ work visas showing date of issuance). Plaintiffs’ Motion for Partial Summary Judgment Page 5 o Case 1:15-cv-00069-GNS-HBB Document 89 Filed 06/02/17 Page 5 of 40 PageID #: 840 village to Monterrey, Nuevo Leon, Mexico, where he paid fees to Defendants’ agent, Monarch Butterfly, for the preparation and filing of his visa application. Ex. 1, Ramakrishnan Decl. ¶ 12 & Ex. E (Summary Table of Pre-employment Cost evidence and supporting documents), ¶ 13 & Ex. F (each Plaintiffs’ Interrogatory Ans. No. 5).4 The Farmworkers paid for hotel stays of several nights in the consular city while their visa applications were being processed and ultimately approved. Id. Once their visas were issued, the Farmworkers traveled at their own expense to the Dillards’ farm in Kentucky. Id. At the U.S.-Mexico border, each Plaintiff paid $6.00 to U.S. immigration officials for issuance of an arrival-departure record, Form I-94. Id. The Dillards reimbursed each Farmworker for only $100 of these expenses during his first week of employment. Id. During the 2014 season, the Dillards compensated the early harvest tasks of planting and topping on an hourly basis. Fact 49. The later-season work in cutting, loading and housing, and stripping the tobacco was paid on a piece-rate basis, with workers paid a set price per tobacco stick handled. Facts 50-52, 54, 55. For their work cutting, loading and housing, and stripping the Dillards’ tobacco crop, the Farmworkers were paid only their piece-rate wages, regardless of the hours they worked. The Dillards kept no contemporaneous record of the Farmworkers’ hours worked while employed on piece-rate activities. Facts 58-60. The Farmworkers’ piece-rate earnings fell well short of both the FLSA minimum wage and the promised wage in the employment contracts, but the Dillards 4 Because the facts pertaining to 24 Plaintiffs’ pre-employment costs are voluminous, they have been summarized, with citations to the record, in chart form for easier access and are attached hereto as Ex. 1, Ramakrishnan Decl. ¶ 12 & Ex. E. Plaintiffs’ Motion for Partial Summary Judgment Page 6 o Case 1:15-cv-00069-GNS-HBB Document 89 Filed 06/02/17 Page 6 of 40 PageID #: 841 never supplemented the piece-rate wages so that the weekly earnings at least equaled these guaranteed rates.5 The Farmworkers worked on tobacco crops owned by Bruce Dillard. Facts 9, 31; Am. Ans. to 3rd Am. Compl. ¶ 42 (Doc. 70). Bruce and Carolyn Dillard owned much of the land where the Farmworkers worked, Fact 30; the housing where the Farmworkers lived, Fact 35; barns where tobacco was hung and stripped by the Farmworkers, Fact 34; the tobacco baling machinery the Farmworkers used to bale tobacco, Fact 33; and the vehicles used to transport the Farmworkers, Fact 36; and Defendants shared ownership with Tracy Dillard in the planting equipment (“tobacco setters”) and tractors, Fact 32. Bruce and Carolyn Dillard made a living from sharing the profits of the family farm where the Farmworkers worked. Fact 3. Bruce and Carolyn played active roles in the day to day operations of the farm, including choosing the type of labor force and number of workers, having the authority to direct the Farmworkers, making decisions about when tobacco was ready to be housed or stripped, setting pay rates, and managing payroll and other financial decisions. Facts 19, 21, 27, 38, 39, 42, 45-48, 56, 57, 62-69. ARGUMENT I. Summary judgment should be granted on the issue of whether Bruce and Carolyn Dillard were employers of the Farmworkers as defined by the FLSA and under common law. The Farmworkers were admitted to the United States for employment on the Dillards’ family farm pursuant to temporary labor certifications filed by Defendant Tracy Dillard. 3rd Am. 5 Six Plaintiffs arrived at the farm in May, for the planting season, and were employed by Defendants on an hourly basis setting (or planting) and topping tobacco. Other than seeking reimbursement for certain re-employment expenses during their initial week of work as set out above, Plaintiffs do not challenge their compensation for their setting and topping work, for which they were compensated on an hourly basis. Plaintiffs’ Motion for Partial Summary Judgment Page 7 o Case 1:15-cv-00069-GNS-HBB Document 89 Filed 06/02/17 Page 7 of 40 PageID #: 842 Compl., at 3, 5−6, ¶¶ 9, 17, 18, 19, 22 and 23 (Doc. 57); Am. Ans. to 3rd Am. Compl., at 5−6, ¶¶ 9, 17, 18, 19, 22 and 23 (Doc. 70); Ex. 1, Ramakrishnan Decl. ¶ 10 & Ex. C (Tracy Dillard ETA 790’s and 9142A’s); ¶ 11 & Ex. D (Plaintiffs’ work visas). These applications identified Tracy Dillard as an employer of the H-2A workers, Ex. 1, Ramakrishnan Decl. ¶ 10 & Ex. C (Tracy Dillard ETA 790’s and 9142A’s), but the Plaintiff Farmworkers were also jointly employed by the other operators of Tra-Ken Farms, Bruce and Carolyn Dillard. A. Bruce and Carolyn Dillard were joint employers of the Farmworkers under the FLSA. 1. Overview of employment under the FLSA The FLSA minimum wage requirements apply broadly to all “employers” who “employ” “employees.” See 29 U.S.C. § 206. Specifically, the FLSA defines an “employer” as including “any person acting directly or indirectly in the interest of an employer,” 29 USC § 203(d), and “employee” is defined as “any individual employed by an employer,” 29 U.S.C. § 203(e). These are definitions of “striking breadth.” Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 326 (1992). It has been called “the broadest definition [of employee] that has ever been included in any one act.” Burry v. Nat’l Trailer Convoy, Inc., 338 F.2d 422, 426 (6th Cir. 1964) (quoting United States v. Rosenwasser, 323 U.S. 360, 363, n.3 (1945) and statement of Senator Hugo Black, 81 Cong. Rec. 7, 657 (1938)); accord Keller v. Miri Microsys. LLC, 781 F.3d 799, 804 (6th Cir. 2015). Case law under the FLSA has often relied on an “economic reality” concept to define employer-employee relationships. The economic reality test does not appear anywhere in the statutory language. It is a judicial construction developed and applied over the course of 50 years of case law. Under the economic reality test a worker is the employee of any entity or entities on which the worker is ultimately dependent “as a matter of economic reality.” Antenor v. D & S Plaintiffs’ Motion for Partial Summary Judgment Page 8 o Case 1:15-cv-00069-GNS-HBB Document 89 Filed 06/02/17 Page 8 of 40 PageID #: 843 Farms, 88 F.3d 925, 929 (11th Cir. 1996) (citing Goldberg v. Whitaker House Cooperative, Inc., 366 U.S. 28, 33 (1961); accord Rutherford Food Corp. v. McComb, 331 U.S. 722 (1947); Keller, 781 F.3d at 807; Charles v. Burton, 169 F.3d 1322, 1328 (11th Cir. 1999). To help determine economic dependence under the FLSA, courts have identified a number of factors that, properly applied, may shed light on the nature of employment relationships. Antenor, 88 F.3d at 932. Whether an employment relationship exists does not turn on isolated or technical factors, but instead depends on the circumstances of the whole activity. Rutherford Food Corp., 331 U.S. at 730; Donovan v. Brandel, 736 F.2d 1114, 1116 (6th Cir. 1984). In applying these factors, the inquiry is not whether the worker is more economically dependent on one entity than another, “with the winner avoiding responsibility as an employer.” Antenor, 88 F.3d at 932. Instead, each employment relationship must be evaluated separately, to determine whether the putative employer has suffered or permitted the employee to work. Id. at 934. Furthermore, no one factor is determinative. The absence of evidence on any one factor does not preclude a finding of joint employment. Instead, factors are to be used as tools to evaluate an employment relationship, with the weight given each factor based on the degree to which it “sheds light on the workers’ economic dependence (or lack thereof) on the putative employer.” Id. at 932−33. Unless the acknowledged employer is completely disassociated from the putative employer and exercises absolute, unfettered and sole control over the workers, there is likely a joint employment relationship. See 29 C.F.R. §791.2(a); Aimable v. Long & Scott Farms, Inc., 20 F.3d 434, 440−41 (11th Cir. 1994).6 6 Many courts reviewing employment relationships under the FLSA are asked to determine whether a worker is an employee or an independent contractor. This analysis is distinct and differs from review of putative joint employment relationships. Perez v. Howes, 7 F. Supp. 3d 715, 722–23 (W.D. Mich. 2014) (outlining the six-factor test for employee versus independent contractor); Cavazos v. Foster, 822 F. Supp. 438, 442 (W.D. Mich. 1993) (same); Donovan, 736 F.2d at 1117 (same); see also Keller, 781 F.3d at 807 (six factor analysis for employee vs. independent contractor). Here, there is no dispute Plaintiffs’ Motion for Partial Summary Judgment Page 9 o Case 1:15-cv-00069-GNS-HBB Document 89 Filed 06/02/17 Page 9 of 40 PageID #: 844 Joint employment relationships are common in agriculture. Indeed, in 1997 the U.S. Department of Labor (“DOL”) published regulations to correct misconceptions surrounding the definition of joint employment in agriculture. 29 C.F.R. §500.20(h)(5)(iv). The DOL’s interpretation of the statutory language is entitled to significant weight, particularly because it was incorporated into a formal rulemaking. Charles, 169 F.3d at 1328 n.10; Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 173−74 (2007) (Labor Department interpretive regulations are entitled controlling deference). These regulatory factors provide guidance in determining economic dependence and, ultimately, whether an employment relationship exists. Charles, 169 F.3d at 1328−29.7 The DOL analysis involves the broad “suffer or permit” to work definition of employ and considers the following non-exclusive list of relevant regulatory factors (hereinafter “DOL regulatory factors”) to determine whether a person or entity employs or jointly employs workers: (1) the putative employer’s power to direct control or supervise the work performed; (2) the putative employer’s power to hire or fire, modify the employment conditions or determine the pay rates or the methods of wage payment for the worker(s); (3) whether the activities performed by the worker(s) are an integral part of the overall business operation of the putative employer; (4) whether the work is performed on the putative employer’s premises; and (5) whether the putative employer undertakes responsibilities in relation to the worker(s) that are commonly performed by employers, such as preparing and/or making payroll records, preparing and/or that the Farmworkers were employees of someone and were not independent contractors. Ex. 1, Ramakrishnan Decl. ¶ 9 & Ex. B (Tracy Dillard Resps. to Reqs. for Admissions Nos. 17, 19, 21, 22, 25, 26); Am. Ans. to 3rd Am. Compl. ¶ 55 (Doc. 70). 7 The DOL regulations were issued under the Migrant and Seasonal Agricultural Worker Protection Act (“AWPA”). The AWPA and the FLSA utilize the same definition of the verb “employ.” See 29 U.S.C. § 203(g) (FLSA) and 29 U.S.C. § 1802(2)(5) (AWPA, expressly incorporating the FLSA definition). Thus, an entity that employs agricultural workers under the FLSA necessarily employs the workers for the purposes of the AWPA and vice versa. Antenor, 88 F.3d at 929. Plaintiffs’ Motion for Partial Summary Judgment Page 10 Case 1:15-cv-00069-GNS-HBB Document 89 Filed 06/02/17 Page 10 of 40 PageID #: 845 issuing pay checks, paying Social Security (FICA) Taxes, providing field sanitation facilities, housing or transportation or providing tools and equipment or materials required for the job. See 29 C.F.R. §500.20(h).8 The analysis can be simplified even further in the context of farm labor. See Fanette v. Steven Davis Farms, LLC, 28 F.Supp.3d 1243, 1258 (N.D. Fla. 2014) (reducing the DOL regulatory factors in the context of agricultural workers to a function of two basic variables: “the amount of work available and the wage rates paid for that work. The worker is dependent on any putative employer which has the power to determine either of these variables.”). 2. Bruce and Carolyn Dillard jointly employed the Farmworkers along with Tracy Dillard for purposes of the FLSA. Applying the DOL regulatory factors, it is clear that Bruce and Carolyn Dillard “employed” the Farmworker Plaintiffs. a. Bruce and Carolyn Dillard controlled the Farmworkers’ employment. The initial factor identified in the DOL regulatory factors evaluates whether the putative employer has the power to direct, control, or supervise the workers or the work performed, directly or indirectly. 29 C.F.R. § 500.20(h)(5)(iv)(A). Befitting a typical small family farm, the Dillards ran the operation together, without rigid job titles and responsibilities. Facts 1-3, 10, 27. All major management decisions relating to the operation of the farm were made jointly among Bruce, Carolyn, and Tracy Dillard. Facts 6, 10, 25, 27, 39, 45-48. Together, the three Dillards decided the crops to be produced on the farm, including the decision to discontinue growing 8 Several other factors identified by the DOL are primarily aimed at determining whether an individual is an independent contractor or an employee and do not assist in determining whether a worker is jointly employed by two or more entities, notably the degree of permanency and the duration of the relationship of the parties, and the extent to which the services rendered by the worker are repetitive rote tasks requiring skills which are acquired with relatively little training. Aimable, 20 F.3d at 443−444. Accordingly, these factors are not considered in the discussion below because there is no dispute that Plaintiffs were employees rather than independent contractors. See footnote 6 above. Plaintiffs’ Motion for Partial Summary Judgment Page 11 Case 1:15-cv-00069-GNS-HBB Document 89 Filed 06/02/17 Page 11 of 40 PageID #: 846 labor-intensive tobacco in 2016. Fact 25. Leach v Johnston, 812 F. Supp. 1198, 1203 (M.D. Fla. 1992) (holding that the ability to decide to switch production to less labor-intensive crops is indicative of employer status). Together the three Dillards made decisions jointly regarding the hiring of workers. Facts 6, 9, 39. Bruce, Carolyn, and Tracy together decided the type of seed to be planted and the dates for seeding the crop, and together they determined when the crop would be cut and harvested and stripped. Facts 19, 37, 38, 46, 47. Together, Tracy, Bruce, and Carolyn determined the piece-rate wages to be paid for various tasks, including cutting, housing, and stripping the crop. Fact 48. Each of the three possessed and exercised the authority to direct and reprimand individual Farmworkers. Facts 64-66, 68, 69.9 Both Bruce and Carolyn Dillard had the power to communicate any instructions to Pablo Rico, the Farmworkers’ foreman, who also served as a translator, concerning the job. Fact 66. These undisputed facts are sufficient to establish that Bruce and Carolyn “controlled” the Farmworker’s employment. See, e.g., Fanette, 28 F. Supp. 3d at 1259 (finding joint-employment over defendant who “controlled every important facet of the domestic farmworkers’ employment” where he decided which fields would be harvested and when, and retained the power to assign and teach tasks and to correct workers). b. Bruce and Carolyn Dillard had the power to modify the employment conditions and to determine pay rate rates of the Farmworkers. 9 In examining control in employment cases, the courts have always evaluated the degree to which the putative employer has the right to control the work of the employee, regardless of whether this power was actually exercised. 62 Fed. Reg. 11739 (rejecting approach limited to the actual exercise of control and citing Haywood v. Barnes, 109 F.R.D. 586, 589 (E.D.N.C. 1986) (“the right to control, not necessarily the actual exercise of that control is important.”) (original emphasis)). Because none of them speaks Spanish, the Dillards usually relied on bilingual foreman Pablo Rico to relay their concerns to the workers. Fact 66. Joint employment relationships often involve this sort of indirect supervision. Hodgson v. Griffin & Brand of McAllen, Inc., 471 F.2d 235, 238 (5th Cir. 1973) (“[t]he fact that [the farmer] effected the supervision by speaking to the crew leader, who, in turn spoke to the harvest workers, rather than speaking directly to the workers does not negate a degree of apparent on-the-job control over the harvest workers.”); Torres-Lopez v. May, 111 F.3d 633, 642−43 (9th Cir. 1997); Fanette, 28 F. Supp. 3d at 1259. Plaintiffs’ Motion for Partial Summary Judgment Page 12 Case 1:15-cv-00069-GNS-HBB Document 89 Filed 06/02/17 Page 12 of 40 PageID #: 847 The second factor set out in the DOL regulatory factors examines whether the putative employer has the right to hire or fire workers, modify the workers’ employment conditions or determine the pay rates of method of payment. 29 C.F.R. §500.20(h)(5)(iv)(B). The Dillards acknowledge that each of them had the power to hire workers. Facts 6, 9, 39. Bruce Dillard also fired two workers in 2014 without needing to seek input from Tracy. Fact 69. In addition, the piece-rate wages for the various activities were determined jointly by Bruce, Carolyn, and Tracy Dillard. Fact 48. Thus, when the Farmworkers demanded a higher piece-rate wage for cutting tobacco during the 2014 season, the final decision to adjust the rate was made together by Bruce and Tracy Dillard. Fact 53. The three Dillards all participated in the decisions as to when the various work activities would commence during the season. Facts 19, 21, 27, 37, 46, 47, 62; see also Charles,169 F.3d at 1331 (growers’ control over the timing of the harvest indicates the power to modify employment terms). c. The Farmworkers performed tasks that were an integral part of the farming business of Bruce and Carolyn Dillard. The third relevant DOL regulatory factor examines whether the activities performed are an integral part of the overall business of the agricultural employer. See 29 C.F.R. § 500.20(h)(5)(iv)(E). A worker who performs a routine task that is a normal and integral part of the grower’s production is likely to be dependent on the grower’s overall production. Antenor, 88 F.3d at 937; Charles, 169 F.3d at 1332−33. It was intended that the Farmworkers and the other H-2A workers admitted as a result of Tracy Dillard’s temporary labor certification applications would work on the tobacco crop grown by Bruce and Carolyn Dillard, as well as on Tracy Dillard’s own crop. Facts 6, 8, 9. In fact, the Farmworkers planted, harvested, housed and stripped the tobacco grown by each of the three Plaintiffs’ Motion for Partial Summary Judgment Page 13 Case 1:15-cv-00069-GNS-HBB Document 89 Filed 06/02/17 Page 13 of 40 PageID #: 848 principals of Tra-Ken Farms. Facts 9, 31, 40, 41. Bruce and Carolyn Dillard made no alternative arrangements to hire labor; they depended entirely on the H-2A farmworkers to plant, top, cut, load, house, strip, grade, and bale their 2014 tobacco crop. Fact 9. As the DOL observed, a task is considered integral when the employer “would be virtually certain to assure that the function is performed, and would obtain the services of whatever workers are needed for this function.” 62 Fed. Reg. 11,741. d. The Farmworkers were employed on the premises of Bruce and Carolyn Dillard. The fourth relevant regulatory factor considers whether the work is performed on the premises of putative employer. 29 C.F.R. § 500.20(h)(5)(iv)(F). This element reveals the worker’s dependence on an entity because, without the land, the employee might not have work. In addition, the business owning the land will likely be able to prevent labor law violations, even if it delegates hiring and supervisory responsibilities to labor contractors. Antenor, 88 F.3d at 936−37. It is undisputed that the Farmworkers were employed on real property owned and controlled by Bruce and Carolyn Dillard. Fact 30. Bruce and Carolyn also owned most of the barns in which the Farmworkers hung the sticks of harvested tobacco and stripped leaves from the cured tobacco plants, Fact 34, and owned the housing where the Farmworkers lived, Fact 35. e. Bruce and Carolyn Dillard undertook responsibilities vis a vis the Farmworkers of the sort ordinarily performed by employers. The final relevant DOL regulatory factor considers whether the putative employer undertakes responsibilities ordinarily performed by an employer, including preparing payroll records, issuing paychecks, providing workers’ compensation insurance, or providing field sanitation facilities or tools for use by the workers. 29 C.F.R. § 500.20(h)(5)(iv)(G). When a Plaintiffs’ Motion for Partial Summary Judgment Page 14 Case 1:15-cv-00069-GNS-HBB Document 89 Filed 06/02/17 Page 14 of 40 PageID #: 849 putative employer voluntarily assumes responsibility for workplace obligations that the law imposes on employers, this indicates voluntary assumption of employer status for other purposes. 62 Fed. Reg. 11736. Carolyn Dillard alone prepared the payroll records with respect to the Farmworkers, including records relating to work they performed on Tracy Dillard’s tobacco crop. Facts 56, 58- 60. Bruce and Carolyn Dillard also owned and provided the accommodations in which the Farmworkers resided during the 2014 tobacco season, Fact 35, and owned and furnished the vehicles that were used to transport the Farmworkers between their temporary residence and the jobsite on a daily basis, Fact 36.10 B. Bruce and Carolyn Dillard were responsible as employers for the breaches of the Farmworkers employment contracts. In addition to their claims for underpayment of wages due under the FLSA, the Farmworkers claim that Defendants breached their employment contracts by, inter alia, not paying them wages guaranteed in their H-2A contracts. Although they were not signatories to the Farmworkers’ employment contracts, Bruce and Carolyn Dillard are nonetheless liable for these contractual breaches. In his submissions to the DOL, Tracy Dillard promised to pay the individuals hired for the job at least the adverse effect wage rate (“AEWR”). Ex. 1, Ramakrishnan Decl. ¶ 9 & Ex. B (Tracy Dillard Resps. to Reqs. for Admission Nos. 41-43). As guestworkers hired under the terms of these temporary labor certifications, the Farmworkers are entitled to enforce them as a 10 Because of their substantial involvement in these and other core activities of the farm, Bruce and Carolyn Dillard also are employers of the Farmworkers, even if it was determined that the unincorporated Tra-Ken Farms was their employer. See, e.g., Dole v. Elliott Travel & Tours, Inc., 942 F.2d 962, 966 (6th Cir. 1991). Because they had significant ownership interest in Tra-Ken Farms and had control over its significant functions, Bruce and Carolyn Dillard would properly be considered statutory employers of the Farmworkers. Fegley v. Higgins, 19 F.3d 1126, 1131 (6th Cir. 1994). Plaintiffs’ Motion for Partial Summary Judgment Page 15 Case 1:15-cv-00069-GNS-HBB Document 89 Filed 06/02/17 Page 15 of 40 PageID #: 850 matter of contract law. Cuellar-Aguilar v. Deggeller Attractions, Inc., 812 F.3d 614, 619−20 (8th Cir. 2015). The obligation to conform to these promises extends to “employers” of H-2A workers, including entities not named in the temporary labor certification. 20 C.F.R. § 655.103(b); Garcia-Celestino v. Consol. Citrus Ltd. P’ship, No. 2:10-CV-542 (M.D. Fla. May 11, 2017) (holding fixed-situs farm operator liable for contractual breaches resulting from actions of the farm labor contractor who had petitioned for admission of the foreign workers).11 The H-2A regulations adopt a common law meaning of an employer-employee relationship, as opposed to the more expansive definition contained in the FLSA. Garcia-Celestino v. Ruiz Harvesting, Inc., 843 F.3d 1276, 1288 (11th Cir. 2016). While the joint employment analysis under FLSA’s “suffer or permit to work” focuses on the dependence of the worker on the putative employer, the common law test concentrates on the alleged employer’s right to control the manner and means by which the employee accomplishes his work. Darden, 503 U.S. at 323 (1992); Sutherland v. Mich. Dep’t. of Treasury, 344 F.3d 603, 612 (6th Cir. 2003) (application of the common law test involves an examination of the putative employer’s control over the manner and means of the plaintiff’s work); Halcomb v. Black Mountain Res., LLC, 303 F.R.D. 496, 501 (E.D. Ky. 2014) (at common law, an employee is “an agent whose principal controls or has the right to control the manner and means of the agent’s performance of work”).12 11 A copy of the May 11, 2017 decision in Garcia-Celestino accompanies this brief at Ex. 2. The defendant in the case has appealed the district court’s decision. 12 Despite their differing foci, “in practice there is not much difference between the two standards—both consider the entire relationship, with the most important factor being the ‘employer’s ability to control job performance and employment opportunities of the aggrieved individual.’” Johnson v. City of Saline, 151 F.3d 564, 568 (6th Cir 1998) (citing Simpson v. Ernst & Young, 100 F.3d 436, 442 (6th Cir.1996)). Plaintiffs’ Motion for Partial Summary Judgment Page 16 Case 1:15-cv-00069-GNS-HBB Document 89 Filed 06/02/17 Page 16 of 40 PageID #: 851 Similarly to review of employer status under the FLSA, courts consider a number of factors to help assess whether an employment relationship exists between an employee and an entity, with no one factor being decisive. Marie v. Am. Red Cross, 771 F.3d 344, 353 (6th Cir. 2014); Simpson, 100 F.3d at 443; Elkin v. McHugh, 993 F. Supp. 2d 800, 806 (M.D. Tenn. 2014). Among the relevant factors to be considered are those identified by the Supreme Court in Darden, 503 U.S. at 323 (hereinafter, the “Darden factors”), including: the hiring party’s right to control the manner and means by which the product is accomplished; the method of payment; the hired party’s employee benefits; and tax treatment of the hired party’s compensation. Simpson, 100 F.3d at 443.13 At common law, an entity is a joint employer if it shares with the acknowledged employer the ability to determine the essential terms and conditions of employment, possessing among other things, the ability to hire, fire or discipline the employee, affect his compensation, and direct and supervise his job performance. Sanford v. Main Street Baptist Church Manor, Inc., 449 Fed. App’x. 488, 492 (6th Cir. 2011); Branson v. Harrah’s Tunica Corp., 832 F. Supp. 2d 929, 935 (W.D. Tenn. 2011) (“The determination of whether an employment relationship exist[s] involves an examination of whether the alleged employer ha[s] the authority to make key management decisions and exercise[s] control over the manner and means of the plaintiff’s 13 As with the DOL regulatory factors, several of the Darden factors are not relevant to a joint employment analysis, and are thus excluded. Eisenberg v. Advance Relocation & Storage, Inc., 237 F.3d 111, 114 (2nd Cir. 2000) (in evaluating these factors, “a court must disregard those factors that, in light of the facts of a particular case, are (1) irrelevant or (2) of ‘indeterminate’ weight—that is, those factors that are essentially in equipoise”); Weary v. Cochran, 377 F.3d 522, 525 n.1 (6th Cir. 2004) (disregarding Darden factor as “irrelevant”). In a recent decision evaluating an alleged joint employment relationship between H-2A workers and a grower, a federal district court concluded that several of the Darden factors were irrelevant, including the skill required, the duration of the relationship between the parties, whether the hiring party has the right to assign additional projects to the hired party, the extent of the hired party’s discretion over when and how long to work, the hiring party’s role in hiring and paying assistants, and whether the work is part of the regular business of the hiring party. Garcia-Celestino v. Consol. Citrus Ltd. P’ship, No. 2:10-CV-542, at 12−13. Ex. 2 hereto. Plaintiffs’ Motion for Partial Summary Judgment Page 17 Case 1:15-cv-00069-GNS-HBB Document 89 Filed 06/02/17 Page 17 of 40 PageID #: 852 work.”). As discussed above, supra part I(A)(2), Bruce and Carolyn Dillard, along with Tracy Dillard, were authorized to exercise each of these indicia of control. This control renders Bruce and Carolyn jointly liable on the H-2A contracts. II. Summary judgment should be granted for Plaintiffs on their claim that Defendants violated the FLSA and breached their contracts with the Farmworkers by failing to reimburse pre-employment expenses during the first week of work. A. Defendants’ failure to fully reimburse pre-employment expenses violated the FLSA’s minimum wage provisions. As discussed above, the FLSA is a statute of broad remedial purposes. Rutherford Food, 331 U.S. at 727. Congress enacted the FLSA’s minimum wage provisions to protect workers from substandard wages and to prevent labor conditions detrimental to the maintenance of the minimum standard of living necessary for the health, efficiency, and general well-being of workers. Barrentine v. Ark.-Best Freight Sys., Inc., 450 U.S. 728, 739 (1981); 29 U.S.C. § 202(a), (b). Congress concluded that the statutory protection was needed in order to protect employees “who lacked sufficient bargaining power to secure for themselves a minimum subsistence wage.” Brooklyn Sav. Bank v. O’Neil, 324 U.S. 697, 707 n.18 (1945). Recognizing the ability of employers to leverage their superior bargaining power to claw back earnings from their employees, the FLSA requires that minimum wages be paid “free and clear” of deductions by employers. Ramos-Barrientos v. Bland, 661 F.3d 587, 594 (11th Cir. 2011); Brennan v. Veterans Cleaning Serv., Inc., 482 F.2d 1362, 1368–69 (5th Cir. 1973); 29 C.F.R. § 531.35. The only statutory exception to the requirement that wages be paid “free and clear” appears in Section 3(m) of the FLSA. Ramos-Barrientos, 661 F.3d at 595. An employer may count as part of the “wage” paid to the worker the reasonable cost of providing “board, lodging or other facilities” if such items are customarily furnished by the employer to its Plaintiffs’ Motion for Partial Summary Judgment Page 18 Case 1:15-cv-00069-GNS-HBB Document 89 Filed 06/02/17 Page 18 of 40 PageID #: 853 employees. 29 U.S.C. §203(m). DOL regulations strictly limit the circumstances under which workers can be paid through benefits rather than money, to prevent employer overreaching. For example, an employer may only deduct the “reasonable” cost of facilities, an amount that cannot include a profit for the employer or an affiliated entity. See 29 U.S.C. § 203(m); 29 C.F.R. §§ 531.3(a) and (b). The FLSA regulations also prohibit employers from claiming as a credit against wage obligations any “facility” that is primarily for the benefit or convenience of the employer. 29 C.F.R. §531.3(d)(1). This regulation “prevents employers from exploiting section 203(m) to shift business expenses to employees” by withholding charges for these operating expenses from employees’ earnings. Ramos-Barrientos, 661 F.3d at 595−96. Thus, if an employer requires an employee to pay for “facilities” (or any other expenses) that are primarily for the benefit or convenience of the employer, then the employer must reimburse the employee’s expense if it drops the employee’s wage below the minimum for a given workweek. 29 C.F.R. §§ 531.32(c), 531.35, and 531.36; see also Marshall v. Root’s Rest., Inc., 667 F.2d 559, 560 (6th Cir. 1982) (holding that an employer was required to reimburse the cost of uniforms purchased by employees); Yu G. Ke v. Saigon Grill, Inc., 595 F. Supp. 2d 240, 258 (S.D.N.Y. 2008) (holding that an employer was required to reimburse the cost of bicycles and necessary repairs paid for by delivery workers because an “employee is entitled to a credit for expenses for ‘facilities’ that are ‘primarily for the benefit or convenience of the employer’”).14 14 The analysis is the same whether the employer deducts these charges from the worker’s wages or where the worker himself incurs these expenses by directly incurring the cost that primarily benefits the employer, such as purchasing a company uniform, Brennan v. Haulover Shark & Tarpon Club, Inc., No. 74-1276-CIV, 1986 WL 587, at *16 (S.D. Fla. Jan 27, 1986), or traveling to the employer’s distant worksite, Brock v. Glassboro Serv. Ass’n., No, 78-0377, 1987 WL 25334, at *5–*6 (D.N.J. July 23, 1987), aff’d sub nom McLaughlin v. Glasssboro Serv. Ass’n, 841 F.2d 1119 (3rd Cir. 1988) (agricultural workers recruited in Puerto Rico and required to pay for their flight to farm on U.S. mainland were entitled to reimbursement for that expense). In such instances, the employee is considered to have “kicked Plaintiffs’ Motion for Partial Summary Judgment Page 19 Case 1:15-cv-00069-GNS-HBB Document 89 Filed 06/02/17 Page 19 of 40 PageID #: 854 1. Pre-employment expenses incurred by H-2A guestworkers are primarily for the employer’s benefit and therefore may not reduce the worker’s first workweek earnings below the minimum wage. Over the past 15 years, federal courts have repeatedly examined these pre-employment charges incurred by H-2A visa applicants. Without exception, the courts have concluded that these expenses primarily benefit the U.S. agricultural employers hiring the guestworkers, and that these expenses may not be shifted to the H-2A worker if they reduce his first week’s wages below the FLSA minimum wage (currently $7.25/hour, 29 U.S.C. § 206(a)). The pre-employment visa, travel and documentary expenses incurred by H-2A workers were first determined to primarily benefit the employer by the Eleventh Circuit in Arriaga v. Fl.- Pac. Farms, LLC, 305 F.3d 1228, 1241–44 (11th Cir. 2002). Every federal court that has subsequently reviewed the issue in the H-2A worker context has reached the same conclusion as the Eleventh Circuit in Arriaga and has held that an employer must reimburse an H-2A worker’s travel and immigration expenses during the first workweek if the failure to reimburse such expenses would reduce the worker’s wages below the FLSA’s required minimum. See Rivera- Rivera v. Peri & Sons Farms, Inc., 735 F.3d 892, 896−99 (9th Cir. 2013); Ramos-Barrientos, 735 F.3d at 596; Garcia-Celestino v. Consol. Citrus Ltd. P’ship, No. 2:10-cv-542, 2015 WL 3440351, at *16 (M.D. Fla. May 28, 2015), aff’d in part and rev’d in part on other grounds, 843 F.3d 1276 (11th Cir. 2016); Sejour v. Steven Davis Farms, LLC, 28 F. Supp. 3d 1216, 1232−33 back” the purchase sum to the employer. 29 C.F.R. §531.35. Thus, when determining whether an employer’s deduction reduces an employee’s wage below FLSA’s minimum, “[t]here is no legal difference between deducting a cost directly from the worker’s wages and shifting a cost which [an employer] could not deduct, for the employee to bear.” Arriaga v. Florida-Pacific Farms, LLC, 305 F.3d 1228, 1236 (11th Cir. 2002). “This is so because wages are not truly ‘received’ unless they are paid ‘free and clear,’” and wages are not paid free and clear when an employer shifts a business expense to its employees by requiring them to purchase items primarily for its benefit. See U.S. Dep’t of Labor Field Assistance Bulletin 2009-2, “Travel and Visa Expenses of H-2B Workers Under the FLSA,” at 2–3 (Aug. 21, 2009) (stating that such de facto deductions are not permitted by the FLSA when they reduce employee wages below the statutory minimum). Plaintiffs’ Motion for Partial Summary Judgment Page 20 Case 1:15-cv-00069-GNS-HBB Document 89 Filed 06/02/17 Page 20 of 40 PageID #: 855 (N.D. Fla. 2014); Perez-Benites v. Candy Brand, LLC, No. 1:07-cv-1048, 2011 WL 1978414, at *13 (W.D. Ark. May 20, 2011); Salazar-Martinez v. Fowler Bros., Inc., 781 F. Supp. 2d 183, 190−97 (W.D.N.Y. 2011); Ojeda-Sanchez v. Bland Farms, LLC, No. 1:07-cv-1048, 2010 WL 3282984, at *9 (S.D. Ga. Aug. 18, 2010); Morales-Arcadio v. Shannon Produce Farms, Inc., No. 6:05-cv-62, 2007 WL 2106188, at *16−17 (S.D. Ga. July 18, 2007); Moreno-Espinosa v. J & J Ag Prods., Inc., 247 F.R.D. 686, 689 (S.D. Fla. 2007); Martinez-Bautista v. D & S Produce, 447 F. Supp. 2d 954, 963−64 (E.D. Ark. 2006); Avila-Gonzalez v. Barajas, No. 2:04-cv-567, 2006 WL 643297, at *3 (M.D. Fla. Mar. 2, 2006); DeLuna-Guerrero v. N.C. Growers’ Ass’n, 338 F. Supp. 2d 649, 661 (E.D.N.C. 2004). The DOL has also expressly adopted Arriaga’s reasoning. In issuing the current H-2A regulations, the DOL explicitly stated “an H-2A employer covered by the FLSA is responsible for paying inbound transportation costs in the first workweek of employment to the extent that shifting such costs to employees (either directly or indirectly) would effectively bring their wages below the FLSA minimum wage.” See Temporary Agricultural Employment of H-2A Aliens in the United States, 75 Fed. Reg. 6884, 6915 (Feb. 12, 2010). The DOL remarked that visa fees “are integral to the employer’s choice to use the H-2A program to bring foreign workers into the country. Such expenses provide no benefit to the employee other than for that particular limited employment situation.” 75 Fed. Reg. at 6925. The agency’s interpretation is reasonable and entitled to deference. Rivera-Rivera, 735 F.3d at 898−99. 2. Farmworker Plaintiffs’ pre-employment travel, visa, lodging and documentary expenses were primarily for Defendants’ benefit and therefore needed to be reimbursed during the first week of employment to the extent they reduced Plaintiffs’ earnings below the FLSA minimum wage. Plaintiffs’ Motion for Partial Summary Judgment Page 21 Case 1:15-cv-00069-GNS-HBB Document 89 Filed 06/02/17 Page 21 of 40 PageID #: 856 As part of their efforts to obtain work with Defendants in 2014, each Farmworker incurred several categories of expenses, including for travel, visa applications and visa fees, all primarily for Defendants’ benefit. Accordingly, Defendants were required to reimburse the Farmworkers during their first week of work to the extent these charges dropped their workweek earnings below the FLSA minimum wage of $7.25 per hour. a. Travel from home village to Monterrey and consular city The Farmworkers traveled at their own expense from their home villages to Monterrey, where they met with Monarch Butterfly, Defendants’ processing agent.15 The cost of this trip ranged from 700 to 3000 Mexican pesos, depending on the location of the individual worker’s hometown.16 Ex. 1, Ramakrishnan Decl. ¶ 12 & Ex. E (Summary Table of Pre-employment Cost evidence and supporting documents), ¶ 13 & Ex. F (Interrog. Ans. No. 5 for each Plaintiff). These expenses primarily benefitted Defendants. Arriaga, 305 F.3d at 1237−1244, 1246−47; Avila-Gonzalez, 2006 WL 643297, at *3.17 b. Visa application and processing fees The Farmworkers paid various fees to Monarch Butterfly officials at the company’s 15 The initial group of workers, whose applications were processed during May, 2014, were interviewed by the U.S. Consulate in Monterrey. The second contingent of Plaintiffs, after having their paperwork prepared by Monarch Butterfly in Monterrey, traveled at their own expense from Monterrey to Nuevo Laredo, where they were interviewed at the U.S. Consulate in that city. See Ex. 1, Ramakrishnan Decl. ¶ 11 & Ex. D (Plaintiffs’ visas, showing “Issuing Post” City) 16 The average exchange rate of Mexican pesos to U.S. dollars was 12.9 in May 2014 and 13.1 in August 2014. http://www.x-rates.com/average/?from=USD&to=MXN&amount=1&year=2014. 17 Some Plaintiffs do not recall the exact amount of this charge and instead rely on the testimony of other Plaintiffs who traveled along with them. Plaintiffs’ averaging and approximations to calculate damages where an employer has failed to make, keep or retain accurate pay records has been widely endorsed by the courts. “[T]he plaintiff needs merely to offer an estimate of damages that is satisfactory as a matter of reasonable inference. This burden is not high, and a ‘representative sample’ of employees can provide a foundation for assumptions about the overall employee pool[.]” Harold Levinson Assocs. v. Chao, 37 Fed. App’x. 19, 21 (2nd Cir. 2002); Martin v. Selker Bros., Inc., 949 F.2d 1286, 1298 (3rd Cir. 1991). Plaintiffs’ Motion for Partial Summary Judgment Page 22 Case 1:15-cv-00069-GNS-HBB Document 89 Filed 06/02/17 Page 22 of 40 PageID #: 857 office in Monterrey. These fees included both the visa application fee, payable to the U.S. Consulate, as well as a fee for the assistance of Monarch Butterfly’s staff in completing the worker’s visa application paperwork. Ex. 1, Ramakrishnan Decl. ¶ 12 & Ex. E (Summary Table of Pre-employment Cost evidence and supporting documents), ¶ 13 & Ex. F (Interrog. Ans. No. 5 for each Plaintiff). The visa application fee was $190. See 22 C.F.R. § 22.1, ¶ 21(b) (fee for non-immigrant visa applications, including H visas). These fees were incurred primarily for Defendants’ benefit. Arriaga, 305 F.3d at 1244; Avila-Gonzalez, 2006 WL 643297, at *3. Similarly, the administrative processing fees charged by Monarch Butterfly primarily benefitted Defendants because they were part of Defendants’ recruitment process to obtain foreign workers. Avila-Gonzalez, 2006 WL 643297, at *4. c. Lodging fees in the consular city The Farmworkers were required to remain overnight in the consular city while their visa applications were reviewed by the consular staff and to await formal interviews by the embassy staff. Ex. 1, Ramakrishnan Decl. ¶ 12 & Ex. E (Summary Table of Pre-employment Cost evidence and supporting documents), ¶ 13 & Ex. F (Interrog. Ans. No. 5 for each Plaintiff). These charges were an essential element of Defendants’ efforts to procure foreign labor for their farm and therefore were incurred primarily for their benefit. Morales-Arcadio, 2007 WL 2106188, at *17. d. Fee for issuance of arrival-departure record, Form I-94 To enter the United States, the Farmworkers were required to obtain an Arrival/Departure record, Form I-94, from U.S. officials at the U.S./Mexico border. Arriaga, 305 F.3d at 1234; Ex. 1, Ramakrishnan Decl. ¶ 12 & Ex. E (Summary Table of Pre-employment Cost evidence and supporting documents), ¶ 13 & Ex. F (Interrog. Ans. No. 5 for each Plaintiff). The charge for the Plaintiffs’ Motion for Partial Summary Judgment Page 23 Case 1:15-cv-00069-GNS-HBB Document 89 Filed 06/02/17 Page 23 of 40 PageID #: 858 I-94 is $6.00. See 8 C.F.R. § 103.7(b)(ii)(D). These expenses were incurred primarily for Defendants’ benefit. Arriaga, 305 F.3d at 1244; Avila-Gonzalez, 2006 WL 643297, at *3. 3. As a result of Defendants’ failure to fully reimburse pre-employment expenses, the Farmworker Plaintiffs received less than the FLSA for their first week of work. To establish first-week FLSA liability, the Farmworkers must show (1) the first period gross pay actually received, (2) the first pay period hours worked, and (3) the expenses incurred that were primarily for the benefit of Defendants. Morales-Arcadio, 2007 WL 2106188, at *15. Where the worker’s actual pay (gross pay) is less than the FLSA lodestar (minimum hourly wages plus expenses), the employer violates the FLSA. Id. This data for Plaintiffs is included in the Summary Table, Ex. 1, Ramakrishnan Decl. ¶ 12 & Ex. E (Summary Table of Pre-employment Cost evidence and supporting documents), ¶ 13 & Ex. F (Interrog. Ans. No. 5 for each Plaintiff). Aside from the gross wages paid for the initial workweek, the chart includes the $100 reimbursement paid by Defendants to the workers shortly after their arrival. The resulting FLSA minimum wage underpayments for each Plaintiff are shown in Ex. 1, Ramakrishnan Decl. ¶ 14 & Ex. G, which calculations were derived from the raw data in the Summary Table.18 B. Defendants’ failure to fully reimburse pre-employment expenses breached their employment contracts with Plaintiffs. As a result of Defendants’ failure to fully reimburse the workers’ pre-employment expenses, Plaintiffs not only earned less than the FLSA, but also received less than the contractually guaranteed adverse effect wage rate (“AEWR”) of $10.10 per hour. Plaintiffs’ employment contracts, as embodied in Defendants’ clearance orders, incorporated the regulatory 18 In doing these calculations, reasonable inferences were drawn. See Harold Levinson Assocs., 37 Fed. App’x. at 21; Martin, 949 F.2d at 1298. For example, all Plaintiffs would have necessarily had to have paid $190 for their visas, 22 C.F.R. § 22.1 ¶ 21(b), and $6 for Form I-94, which are government mandated fees. See supra Parts II(A)(2)(b) and (d). Plaintiffs’ Motion for Partial Summary Judgment Page 24 Case 1:15-cv-00069-GNS-HBB Document 89 Filed 06/02/17 Page 24 of 40 PageID #: 859 requirement that the weekly wages would equal or exceed the adverse effect wage rate. See 20 C.F.R. § 655.122(l). Because they incurred the pre-employment visa, lodging and travel expenses primarily for the employer’s benefit, Plaintiffs’ net earnings for their first week on occasion were not only less than the FLSA minimum wage, but also less than the contractually- promised AEWR. See Ex. 1, Ramakrishnan Decl. ¶ 14 & Ex. G (showing underpayment at the AEWR rate derived from Summary Table facts). An H-2A employer breaches its contract with the guestworkers if the guestworker’s net wages for the first workweek totaled less than the AEWR, plus the qualifying pre-employment expenses: The Court further finds that the class members did not earn the mandated adverse effect wage rate for their work because they incurred expenses primarily for the benefit of the employers which were never reimbursed. A worker must be reimbursed for any costs incurred primarily for the employer’s benefit which will serve to reduce the employee’s net earnings during the first week of work below the mandated wage rate. In this action, the applicable wage rate is the adverse effect wage rate; to the extent that the workers’ net earnings in the first week of work fell below this rate because of the pre-employment expenses discussed below, the [employers] were required to reimburse these amounts to the workers. Avila-Gonzalez, 2006 WL 643297. at *2; see also Perez-Benites, 2011 WL 1978414. at *15 (“Failure to reimburse Plaintiffs for these [pre-employment expenses] during their first work weeks effectively reduced Plaintiffs’ wages below the AEWR in violation of the H-2A contracts. Defendants are liable for these deficiencies.”); DeLeon-Granados v. Eller & Sons Trees, Inc., 581 F.Supp.2d 1295, 1317 (N.D. Ga. 2008) (employer breached “statutory contract” of H-2B guestworkers by failing to reimburse pre-employment expenses). In a 1999 memorandum opinion, the Wage and Hour Division of the DOL reached a similar conclusion, determining that “if an employer is legally required to pay a [minimum Plaintiffs’ Motion for Partial Summary Judgment Page 25 Case 1:15-cv-00069-GNS-HBB Document 89 Filed 06/02/17 Page 25 of 40 PageID #: 860 wage] higher than the FLSA [minimum wage], then deductions are permitted only to the extent that they do not reduce the employee’s pay to an effective hourly rate lower than the highest applicable required wage enforced by [the Wage and Hour Division]. Id. (citing Wage and Hour Memorandum No, 99-03, February 11, 1999). This policy has been formally incorporated into the Wage and Hour Division’s Field Operations Handbook. See Field Operations Handbook, Section 30c16, available at http://www.dol.gov/whd/FOH/FOH_Ch30.pdf (disallowing deductions “that cut into the highest applicable [minimum wage] enforced by [Wage and Hour Division] unless the law establishing that [minimum wage] (e.g., DBRA, SCA, H-2A, H-1B, etc.) allows the particular deduction from wages.”) III. Defendants failed to pay FLSA minimum and contractually-required wages for piece-work tasks of cutting, loading and stripping tobacco. Among other things, Plaintiffs claim that they were underpaid for the work they performed on a piece-rate basis cutting, loading and housing, and stripping tobacco.19 Plaintiffs contend that Defendants paid them only their piece-rate earnings, and failed to supplement these wages so that the workers received hourly wages as required by the minimum wage provisions of the FLSA and their employment contracts with Defendants. A. Defendants were obligated to pay the Farmworkers wages equaling or exceeding the FLSA minimum wage and the applicable AEWR. Even though they were employed as H-2A workers, the protections of the FLSA’s minimum wage provisions “indisputably” apply to Plaintiffs. Arriaga, 305 F.3d at 1235; see also 20 C.F.R. § 655.135(e) (the FLSA’s requirements operate and apply independently of the H-2A 19 Six Plaintiffs arrived at the farm in May, for the planting season, and were employed by Defendants on an hourly basis setting (or planting) and topping tobacco. Other than seeking reimbursement for certain re-employment expenses during their initial week of work as set out above, Plaintiffs do not challenge their compensation for their setting and topping work, for which they were compensated on an hourly basis. Plaintiffs’ Motion for Partial Summary Judgment Page 26 Case 1:15-cv-00069-GNS-HBB Document 89 Filed 06/02/17 Page 26 of 40 PageID #: 861 program and its regulations). Throughout the period of Plaintiffs’ employment with Defendants, the FLSA minimum wage was $7.25 per hour. Under the FLSA, employers may compensate workers on a piece-rate basis. Farmers use piece-rate wages as an incentive for workers to produce more. Morales-Arcadio, 2007 WL 2106188, at *3. However, the worker’s workweek earnings must nonetheless equal or exceed the FLSA minimum wage. Id.; see also 29 C.F.R. § 776.5; Rosenwasser, 323 U.S. at 264; Rubio Gaxiola v. Williams Seafood of Arapahoe, Inc., 776 F. Supp. 2d 117, 124 (E.D.N.C. 2011) (“Employers must pay minimum wage for all hours worked. Thus, workers paid on a piece-rate basis are entitled to the minimum wage rate when the piece-rate compensation does not reach the minimum wage”). Plaintiffs were also entitled to payment of a special wage applicable to the H-2A program known as the AEWR. See 20 C.F.R. §§ 655.103(b) and 655.120(a). Consistent with federal regulations governing the H-2A program, the two temporary labor certifications each included job offers, which also served as the employment contracts between Plaintiffs and Defendants. 20 C.F.R. § 655.122(q). Each job order contained a provision, required of H-2A employers by 20 C.F.R. § 655.122(l), that workers would be paid at least the applicable AEWR for each pay period. The H-2A program permits payment of a piece rate wage to workers. Mitchell v. Osceola Farms Co., 447 F.Supp.2d 1307, 1309 (S.D. Fla. 2006). In this case, Plaintiffs were paid exclusively on a piece rate for their work cutting, loading and housing, and stripping tobacco, with the piece rate being based on the number of “sticks” handled.20 However, in a fashion 20A “stick” consists of a wooden stick speared through six tobacco plants. Fact 24. In cutting and stripping work, the employee was compensated based on the number of “sticks” he individually handled. Facts 50, 52, 54. Loading and housing tobacco was done on a group basis, with the piece rate wages for the task divided equally among the workers in the crew. Fact 51, 55. Plaintiffs’ Motion for Partial Summary Judgment Page 27 Case 1:15-cv-00069-GNS-HBB Document 89 Filed 06/02/17 Page 27 of 40 PageID #: 862 similar to the FLSA, the H-2A regulations require employers to guarantee the guaranteed hourly rate (the AEWR) to piece work employees each pay period. 20 C.F.R. § 655.122(l)(2)(i) (“If the worker is paid on a piece rate basis and at the end of the pay period the piece rates does not result in average hourly piece rate earnings during the pay period at least equal to the amount the worker would have earned had the worker been paid at the appropriate hourly rate: (i) The worker’s pay must be supplemented at that time so that the worker’s earnings are at least as much as the worker would have earned during the pay period if the worker had instead been paid at the appropriate hourly rate for each hour worked”); see also Mitchell, 447 F.Supp.2d at 1309 (if the piece rate does not equal the AEWR, the employer is required to supplement the worker’s pay); Garcia-Celestino, 2015 WL 3440351, at *6 (H-2A employer’s job offer incorporated regulatory requirement that if a harvester’s total piece-rate earnings did not meet the AEWR, the employer would provide supplemental or “build-up pay” to the worker). B. Defendants failed to pay Plaintiffs minimum wages as required by the FLSA and at levels mandated by the workers’ employment contracts. Plaintiffs complain that for their work cutting, loading and housing, and stripping tobacco, tasks which occupied most of their employment from late August 2014 through January 2015, they received only their piece-rate wages. These piece-rate wages routinely fell below the FLSA minimum wage, as well as falling short of the higher wage rates promised in the workers’ employment contracts. The Farmworkers contend that Defendants fabricated payroll data post hoc in an effort to conceal these underpayments. Third Am. Compl. ¶¶ 13−14, 15−16, ¶¶ 68, 72(v), 73, 76–77 (Doc. 57).21 21 It is not uncommon for agricultural employers to fabricate data regarding hours of work by piece-workers in order to avoid obligations for back wages under the FLSA or the employment contracts of H-2A workers. Jean v. Torrese, 278 F.R.D. 656, 660 (S.D. Fla. 2011); Wales v. Jack M. Berry, Inc., 192 F. Supp. 2d 1268, 1278–79 (M.D. Fla. 1999); Morales-Arcadio, 2007 WL 2106188, at *5 (S.D. Ga. July 18, 2007). Plaintiffs’ Motion for Partial Summary Judgment Page 28 Case 1:15-cv-00069-GNS-HBB Document 89 Filed 06/02/17 Page 28 of 40 PageID #: 863 1. Burdens of proof in claims for unpaid wages To aid in enforcement of the Act, the FLSA and its attendant regulations require employers to maintain certain payroll data with regard to their employees. 29 U.S.C. § 211(c). Agricultural employers are required, among other things, to maintain a record of the number of hours worked by each employee during each pay period. 29 C.F.R. §516.33(c). Similar requirements are imposed on H-2A employers to ensure compliance with the regulatory obligation to pay workers the AEWR. See 20 C.F.R. § 655.122(j)(1) (requiring, inter alia, employers to record for each worker “the hours actually worked each day by the worker” and “the time the worker began and ended each workday.”). In order to recover under the FLSA, an employee must initially show that the Act was violated and produce evidence to show the nature and extent of the work performed as a matter of just and reasonable inference. Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687 (1946). Where an employer keeps complete and accurate records as required by the FLSA, it is relatively easy to determine whether the minimum wage has been paid. Id. However, in cases where the employer has not maintained such records, other evidence must be relied upon. Id. This evidence is frequently anecdotal and imprecise because, as the Supreme Court has acknowledged, employees seldom keep records regarding their own work. Id. When an employer fails to keep the required records, the employee’s initial burden is to make out a prima facie case that the FLSA has been violated and to produce evidence to show the nature and extent of the work as a matter of just and reasonable inference. Id. at 686–87. The employee’s burden is relaxed considerably when the employer has failed to comply with its recordkeeping obligations. Id. Thus: Plaintiffs’ Motion for Partial Summary Judgment Page 29 Case 1:15-cv-00069-GNS-HBB Document 89 Filed 06/02/17 Page 29 of 40 PageID #: 864 an FLSA plaintiff must prove by a preponderance of the evidence that he or she “performed work for which he [or she] was not properly compensated.” Often, the plaintiff can prove his or her “under-compensation” damages through discovery and analysis of the employer’s code-mandated records. However, if the employer kept inaccurate or inadequate records, the plaintiff’s burden is relaxed, and, upon satisfaction of the relaxed burden, the burden shifts to the employer to negate the employee’s inferential damage estimate. Myers v. Copper Cellar Corp., 192 F.3d 546, 551 (6thCir. 1999); see also England v. Advance Stores Co., Inc., 263 F.R.D. 423, 448 (W.D. Ky. 2009) (“when an employer has failed to keep accurate or adequate time records, an employee may satisfy her burden … if she produces evidence to generally show the amount and uncompensated work as a matter of just and reasonable inference. This lesser burden …may be satisfied by the sole testimony of the complaining employee based on her recollection alone.”); Berry v. Office of the Fayette County Sheriff, No. 5:14-cv-356, 2015 WL 9165905, at *8 (E.D. Ky. Dec. 16, 2015). Where it has failed in its recordkeeping responsibilities, the employer cannot to be heard to complain that the damages lack the exactness and precision of measure had the required records been maintained. Chao v. Akron Insulation & Supply, Inc., 184 Fed. App’x 508, 512 (6th Cir. 2006); Beliz v. W.H. McLeod & Sons Packing Co., 765 F.2d 1317, 1330 (5th Cir. 1985).22 2. Plaintiffs have established a prima facie case of wage underpayment. a. Plaintiffs have demonstrated that they performed work for which they were not properly compensated. 22 The principles announced by the Supreme Court in Mt. Clemens Pottery are also applicable to contract claims under the H-2A program because of the H-2A program’s parallel requirement that employers maintain payroll records, 20 C.F.R. §655.122(j)(1), which underpins the rule established in Mt. Clemens Pottery. See Calderon v. Presidio Valley Farmers Ass’n, 863 F.2d 384, 391 (5th Cir. 1989) (affirming district court use of “just and reasonable inference” standard for H-2 workers’ contract claims). The Mt. Clemens Pottery burden-shifting analysis has been extended to other statutes that require employers to maintain records. See, e.g., Savering v. United States, 18 Cl. Ct. 704, 709 (Ct. Cl. 1989) (Federal Employees Pay Act.); Combs v. King, 764 F.2d 818, 827 (11th Cir. 1985) (ERISA); Amcor, Inc. v. Brock, 780 F.2d 897, 901 (11th Cir. 1986) (Service Contract Act of 1965). Plaintiffs’ Motion for Partial Summary Judgment Page 30 Case 1:15-cv-00069-GNS-HBB Document 89 Filed 06/02/17 Page 30 of 40 PageID #: 865 The Farmworkers were paid only their piece-rate earnings for cutting, loading and housing, and stripping tobacco, the activities that dominated their work from late August 2014 through the end of the tobacco season in January 2015. Facts 50–52, 54, 55, 58–60. The amount of their earnings each week is not in dispute and is reflected on their pay checks. Ex. 1, Ramakrishnan Decl. ¶ 15 & Ex. H (Cancelled checks showing earnings) (filed separately under seal); ¶ 16 & Ex. I (Report of Jorge J. Rivero, Ex. E thereto, compiling data). These piece-rate earnings wages fell well below the earnings due the Plaintiffs under both the FLSA’s minimum wage provisions and the AEWR. Plaintiffs’ interrogatory answers, Ex. 1, Ramakrishnan Decl. ¶ 13 & Ex. F (Ans. to No. 3 for each Plaintiff), reveal the extent of these underpayments.23 For example, Plaintiff Ageo Avelino Naez reported: When the cutting began in mid August, I wasn’t paid $10.10 per hour anymore. During the cutting, we began 7:00 a.m. and stopped around 7:00 p.m. Two or three days a week, we would return in the night for a few hours to haul the sticks and load them onto trailers. Sometimes we would work every day of the week during the cutting. Sometimes it would rain, and we would not work when it rained hard. I don’t remember how many times it rained hard, maybe 3 times. In October sometimes there was less work. During stripping we started work at 7:00 a.m. and lowered and stripped the tobacco until 5:00 p.m. About 3 nights per week we would gather and bale tobacco, from around 6:00 p.m. until 11:00 p.m. I would take lunch breaks of around 15 to 30 minutes when we worked by piece. The work slowed down in late December. See, e.g., Ex. 1, Ramakrishnan Decl. ¶ 13 & Ex. F (Ans. to Interrog. No. 3 for Plaintiff Ageo Avelino Naez). Using this testimony for all Plaintiffs, Expert Jorge J. Rivero calculated the wages owed to each Plaintiff through the methodology described in his Report. Ex. 1, 23 Myers v. Marietta Mem. Hosp., 201 F. Supp. 3d 884, 889 (S.D. Ohio 2016) (due to the remedial nature of the FLSA,” the employee's burden “of proving that he performed work for which he was not properly compensated” should not be made an impossible hurdle for the employee). Plaintiffs’ Motion for Partial Summary Judgment Page 31 Case 1:15-cv-00069-GNS-HBB Document 89 Filed 06/02/17 Page 31 of 40 PageID #: 866 Ramakrishnan Decl. ¶ 16 & Ex. I (Report of Jorge J. Rivero and Ex. E thereto). In total, Plaintiffs were underpaid $62,948.91 under the FLSA and an additional $76,821.92 to bring them up to the AEWR. Id.. b. Plaintiffs have proven the wage underpayments under the FLSA and their employment contracts as a matter of just and reasonable inference. Defendants acknowledge that they maintained no contemporaneous records of the hours worked by Plaintiffs while they were employed on piece-rate tasks. Facts 58-60. Although the summary weekly payroll documents prepared by Defendants display entries purporting to show the hours worked, Defendant Carolyn Dillard acknowledged that for piece-rate tasks, these entries were merely post hoc fabrications, computed by dividing the worker’s piece-rate earnings by the AEWR of $10.10. Fact 60. The Supreme Court addressed such situations in its Mt. Clemens Pottery opinion: When the employer has kept proper and accurate records, the employee may easily discharge his burden by securing the production of those records. But where the employer's records are inaccurate or inadequate and the employee cannot offer convincing substitutes, a more difficult problem arises. The solution, however, is not to penalize the employee by denying him any recovery on the ground that he is unable to prove the precise extent of uncompensated work. Such a result would place a premium on an employer's failure to keep proper records in conformity with his statutory duty; it would allow the employer to keep the benefits of an employee's labors without paying due compensation as contemplated by the Fair Labor Standards Act. In such a situation we hold that an employee has carried out his burden if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference. 328 U.S. at 687–88. Plaintiffs’ Motion for Partial Summary Judgment Page 32 Case 1:15-cv-00069-GNS-HBB Document 89 Filed 06/02/17 Page 32 of 40 PageID #: 867 Thus, where an employee demonstrates he was improperly compensated for some work performed, he has a right to recovery even though the amount owed may be uncertain and the damages difficult to calculate. Mendez v. Brady, 618 F. Supp. 579, 587 (W.D. Mich. 1985) (case brought by migrant farmworkers paid on a piece-rate basis for harvesting work). Because the employer has failed in its recordkeeping obligations, the employee’s burden of proof is relaxed with respect to establishment the amount of additional wages due. See, e.g., Conklin v. Joseph C. Hofgesang Sand Co., Inc., 407 F. Supp. 1090, 1094 (W.D. Ky. 1975) (“Since the defendant kept no records as to the amount of time plaintiff worked, plaintiff is not required to prove with precision her claim.”). In Mt. Clemens Pottery, the Supreme Court noted that employees seldom maintain their own contemporaneous records of hours worked. 328 U.S. at 687. As a result, evidence presented by employees to establish the amount of unpaid wages is often anecdotal and imprecise. Nonetheless, where employers fail to maintain required payroll records, courts have often awarded back wages to employees based on admittedly imprecise or even incorrect evidence. For example, the plaintiff in Reeves v. Int’l Tel. & Tel. Co., 616 F.2d 1342. 1352 (5th Cir.1980), cert. denied, 449 U.S. 1077 (1981),established his claim with estimates of hours based upon “the rough computations of his subconscious mind.” In another case, the court of appeals found that evidence which was demonstrably inaccurate was nonetheless sufficient to meet the plaintiff employee’s burden, since the inaccuracy was due to the defendant’s failure to keep more accurate records. Marshall v. Mamas Fried Chicken, 590 F.2d 598, 599 (5th Cir. 1979).24 24 Under the relaxed burden of proof under Mt. Clemens Pottery, an employee is able to meet his prima facie burden relying solely on his own recollection of the hours worked. Berrios v. Nicholas Zito Racing Stable, Inc., 849 F. Supp. 2d 372, 380 (E.D.N.Y. 2012); Reeves, 616 F.2d at 1352; Mumbower v. Callicott, 526 F.2d 1183 (8th Cir.1975); Hodgson v. Humphries, 454 F.2d 1279, 1283 (10th Cir.1972); Wirtz v. Durham Sandwich Co., 367 F.2d 810, 812 (4th Cir.1966). Plaintiffs’ Motion for Partial Summary Judgment Page 33 Case 1:15-cv-00069-GNS-HBB Document 89 Filed 06/02/17 Page 33 of 40 PageID #: 868 Agricultural jobs pose special challenges in reconstructing hours because the workday varies in length based on weather, crop and market conditions.25 For example, in Hodgson v. Okada, 472 F.2d 965, 969 (10th Cir. 1972), the absence of adequate wage records justified a district court in calculating minimum wage violations for a crew of cucumber pickers based on deposition testimony which constituted “a maze of total and complete confusion.” Similarly, in Washington v. Miller, 721 F.2d 797, 803 (11th Cir. 1983), the farmworker employees met their prima facie burden for recovery under the FLSA despite the fact that “[t]estimony as to the hours worked varied widely and was often confused and contradictory.” Through their sworn interrogatory responses, Plaintiffs have provided evidence as to their hours worked in the varying piece-work activities. The back wages due based on this testimony have been computed by Jorge J. Rivero, a former district director for the United States Department of Labor’s Wage and Hour Division. Drawing on his experiences from over 1,000 FLSA investigations, Rivero reconstructed the hours worked by Plaintiffs while employed on piece-work tasks. Ex. 1, Ramakrishnan Decl. ¶ 16 & Ex. I (Report of Jorge Rivero & Ex. E thereto). Using these reconstructed hours, Rivero computed the additional wages each worker was owed, both with regard to minimum wage underpayments under the FLSA and pursuant to their employment contracts, which required payment of the AEWR. Id. at 35−36. Rivero’s methods are entirely appropriate for determining back wages in instances where an employer has failed to maintain required payroll records. U.S. Dep’t of Labor v. Cole Enters., Inc., 62 F.3d 775, 781 (6th Cir. 1995) (in approving a back wage award based on largely on 25 Defendant Tracy Dillard acknowledged the challenges in accurately keeping hourly records on piece workers, noting that he would probably need to hire three people and a computer operator in order to accurately track the hours worked by the harvest workers while they were employed cutting the tobacco crop. See Fact 58 (Tracy Dillard Dep. 86:21-88:12). Plaintiffs’ Motion for Partial Summary Judgment Page 34 Case 1:15-cv-00069-GNS-HBB Document 89 Filed 06/02/17 Page 34 of 40 PageID #: 869 employee interviews and testimony, the appeals court observed that “[c]onsideration of such evidence is appropriate in determining the amount of back wages due.”). Rivero’s use of workforce averages to project back wage amounts for each Plaintiff was also appropriate.26 Under the relaxed burden imposed in the absence of accurate or adequate employer records, “the plaintiff needs merely to offer an estimate of damages . . . a ‘representative sample’ of employees can provide a foundation for assumptions about the overall employee pool[.]” Harold Levinson Assocs. v. Chao, 37 Fed. App’x 19, 21 (2nd Cir. 2002); see also Cole, 62 F.3d at 781 (noting that employee testimony may appropriately be used “to make estimates and calculations for similarly situated employees who did not testify” and “may be the basis for an award of back wages to nontestifying employees”). 3. Defendants are unable to rebut Plaintiffs’ prima facie case of wage underpayment. Once an employee meets his prima facie burden, “the burden then shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negate the reasonableness of the inference to be drawn from the employee’s evidence.” Mt. Clemens Pottery, 328 U.S. at 687-88; O’Brien, 575 F.3d at 602 (“upon satisfaction of that relaxed burden, the onus shifts to the employer to negate the employee's inferential damage estimate”). Defendants admit that they have no idea as to the hours actually worked by Plaintiffs when they were performing piece-work tasks. Fact 58-60. As a result, the Plaintiffs’ evidence, as summarized in Rivero’s report must be credited. Chao v. Akron Insulation & Supply, Inc., 184 Fed. App’x 508, 512 (6th Cir. 2006) (employer failed to rebut employee’s evidence because it 26“[l]t is clear that each employee need not testify in order to make out a prima facie case of the number of hours worked as a matter of just and reasonable inference.” Donovan v. The New Floridian Hotel, Inc., 676 F.2d 468, 472 (11th Cir. 1982). Plaintiffs’ Motion for Partial Summary Judgment Page 35 Case 1:15-cv-00069-GNS-HBB Document 89 Filed 06/02/17 Page 35 of 40 PageID #: 870 could not offer any evidence of the actual number of hours worked or otherwise negate the reasonableness of the inferences drawn from the employee’s evidence); Olivas v. A Little Havana Check Cash, Inc., 324 Fed. App’x 839, 844 (11th Cir. 2009) (affirming district court finding of hours worked based on employee’s estimate or average where employer failed to fulfill its duty to maintain accurate records, provided no alternative calculation, and did not rebut employee’s explanations); Shultz v. Hinojosa, 432 F.2d 259, 261, 266 (5th Cir. 1970) (reversing district court’s rejection of worker testimony and court’s own estimate of hours worked as clearly erroneous where “[n]o witness on the part of management supplied any information as to the number of hours worked” and “there was no evidence or other factual basis for the court’s determination”). IV. Plaintiffs are entitled to an award of liquidated damages with respect to their FLSA claims. Employees who prevail in a minimum wage action are entitled to recover their unpaid wages as well as an equal amount in liquidated damages. 29 U.S.C. §216(b). Liquidated damages represent “compensation for the retention of a workman’s pay which might result in damages too obscure and difficult of proof for estimate other than by liquidated damages.” Brooklyn Sav. Bank, 324 U.S. at 707. Liquidated damages under the FLSA are compensation, rather than a penalty or punishment. Elwell v. Univ. Hosps. Home Care Servs., 276 F.3d 832, 840 (6th Cir. 2002). As the Supreme Court observed, the FLSA’s provision for liquidated damages awards “constitutes a Congressional recognition that failure to pay the statutory minimum on time may be so detrimental to the maintenance of the minimum standard of living necessary for health, efficiency and general well-being of workers and to the free flow of commerce, that double payment must be made in the event of delay in order to insure restoration of the worker to that minimum standard of well-being.” Brooklyn Sav. Bank, 324 U.S. at 707. Plaintiffs’ Motion for Partial Summary Judgment Page 36 Case 1:15-cv-00069-GNS-HBB Document 89 Filed 06/02/17 Page 36 of 40 PageID #: 871 The employer may avoid an award of liquidated damages only if it shows both that his violation was in good faith and that he had reasonable grounds for believing his actions did not violate the FLSA. 29 U.S.C. §260. The burden on the employer is substantial and there is a strong presumption in favor of the award of liquidated damages. Elwell, 276 F.3d at 840. In the absence of the employer presenting evidence to establish both the good faith and reasonableness prongs, summary judgment is appropriate on an employee’s claim for FLSA liquidated damages. Dole v. Elliott Travel & Tours, Inc., 942 F.2d 962, 968 (6th Cir. 1991). In order to show good faith, an employer must show that it took affirmative steps to comply with the FLSA’s requirements; absence of intent to violate the law or ignorance of the FLSA’s requirements is insufficient to establish good faith. Solis v. Min Fang Yang, 345 Fed.App’x. 35, 39 (6th Cir. 2009). Defendants have made no showing of good faith. They were on notice of their obligation to reimburse Plaintiffs during their first week of work, Fact 71, but nonetheless declined to reimburse more than a fraction of Plaintiffs’ expenses. Under their agency contract with Ray Wilcoxson, Defendants agreed “[t]o reimburse all required transportation and out of pocket costs upon arrival at the farm per DHS regulations.” Ex. 1, Ramakrishnan Decl. ¶ 17 & Ex. J (Agreement with Ray Wilcoxson) Defendants had made similar reimbursements in 2013, and were aware that they were required under the law. Facts 71, 72. Similarly, there was no reasonable and objective basis for Defendants to believe they were not obligated to reimburse Plaintiffs’ for their pre-employment expenses during the first week of employment. Arriaga was decided a dozen years before the 2014 harvest and has been uniformly followed by every subsequent court. The DOL in 2010 unequivocally embraced Arraiga’s reasoning. 75 Fed. Reg. 6884, 6915 (Feb. 12, 2010). Plaintiffs’ Motion for Partial Summary Judgment Page 37 Case 1:15-cv-00069-GNS-HBB Document 89 Filed 06/02/17 Page 37 of 40 PageID #: 872 Additionally, with regard to the Farmworkers’ FLSA claims for unpaid wages during periods of time when the Dillards paid by the piece, there was no basis for Defendants to believe they were paying workers properly, when they failed to keep accurate record of the Farmworkers’ actual hours worked and knowingly fabricated hours. Facts 58-60. CONCLUSION Plaintiffs respectfully request that the Court grant summary judgment in the Farmworkers’ favor against Defendants Bruce and Carolyn Dillard for each of the following: 1) Defendant Bruce Dillard was Plaintiffs’ employer under the FLSA; 2) Defendant Bruce Dillard was Plaintiffs’ employer under their H-2A employment contracts; 3) Defendant Carolyn Dillard was Plaintiffs’ employer under the FLSA; 4) Defendant Carolyn Dillard was Plaintiffs’ employer under their H-2A employment contracts; 5) Defendants Bruce and Carolyn Dillard violated the FLSA by failing to pay Plaintiffs’ pre-employment costs during the first week of work; 6) Defendants Bruce and Carolyn Dillard breached Plaintiffs’ contracts by failing to pay Plaintiffs’ pre-employment costs during the first week of work; 7) Defendants Bruce and Carolyn Dillard violated the FLSA by failing to pay the minimum wage of $7.25 per hour for piece-rate paid work; 8) Defendants Bruce and Carolyn Dillard breached their contracts with Plaintiffs by failing to pay the AEWR of $10.10 or $10.28 per hour for piece rate paid work; 9) Defendant Bruce and Carolyn Dillard did not establish the good-faith defense to an award of liquidated damages under the FLSA; Plaintiffs’ Motion for Partial Summary Judgment Page 38 Case 1:15-cv-00069-GNS-HBB Document 89 Filed 06/02/17 Page 38 of 40 PageID #: 873 10) enter judgment in the amount of $202,719.70, inclusive of liquidated damages, for Plaintiffs’ claims that they were underpaid for work that was paid on a piece-rate; and 11) enter judgment in the amount of $ $20,067.11, inclusive of liquidated damages, for Plaintiffs’ claims that they were underpaid because they were not reimbursed pre-employment costs during the first week of work. Respectfully Submitted, /s/ Lakshmi Ramakrishnan____________ Lakshmi Ramakrishnan lramakrishnan@trla.org TEXAS RIOGRANDE LEGAL AID, INC. 301 S. Texas Ave. Mercedes, TX 78570 Telephone: (956) 447-4850 Facsimile: (956) 968-8823 Caitlin Berberich cberberich@trla.org SOUTHERN MIGRANT LEGAL SERVICES A Project of Texas RioGrande Legal Aid, Inc. 311 Plus Park Blvd., Ste. 135 Nashville, TN 37217 Telephone: (615) 538-0725 Facsimile: (615) 366-3349 Douglas L. Stevick dstevick@trla.org TEXAS RIOGRANDE LEGAL AID, INC. 5439 Lindenwood Ave. St. Louis, MO 63109 Telephone: (314) 449-5161 Gregory S. Schell gschell@trla.org SOUTHERN MIGRANT LEGAL SERVICES A Project of Texas RioGrande Legal Aid, Inc. 9851 Daphne Ave. Palm Beach Gardens, FL 33410-4734 Telephone: (561) 627-2108 McKenzie Cantrell Plaintiffs’ Motion for Partial Summary Judgment Page 39 Case 1:15-cv-00069-GNS-HBB Document 89 Filed 06/02/17 Page 39 of 40 PageID #: 874 mckenzie@kyequaljustice.org KENTUCKY EQUAL JUSTICE CENTER 455 S. Fourth St., Ste. 1071 Louisville, KY 40202 Telephone: (502) 333-6019 Facsimile: (502) 416-0022 CERTIFICATE OF SERVICE I hereby certify that on this the 2nd day of June, 2017, I electronically filed this document with the Clerk of Court using the ECF system, which sent notice of such filing to all counsel of record in this action. /s/ Lakshmi Ramakrishnan____________ Lakshmi Ramakrishnan Plaintiffs’ Motion for Partial Summary Judgment Page 40 Case 1:15-cv-00069-GNS-HBB Document 89 Filed 06/02/17 Page 40 of 40 PageID #: 875 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF KENTUCKY BOWLING GREEN DIVISION __________________________________________ ) MARTIN RICO MURILLO, et al., ) ) Plaintiffs, ) ) vs. ) Civil Action No. 1:15-cv-69-GNS ) Judge Stivers TRACY DILLARD, BRUCE DILLARD, ) Magistrate Judge Brennenstuhl and CAROLYN DILLARD, ) ) Defendants. ) _________________________________________ ) DECLARATION OF LAKSHMI RAMAKRISHNAN I, Lakshmi Ramakrishnan, declare the following based on personal knowledge: 1. My name is Lakshmi Ramakrishnan. I am over 21 years of age and am fully competent to testify to the facts set forth herein in this Declaration. 2. I am one of Plaintiffs’ attorneys in this lawsuit. 3. True and correct copies of the following exhibits are attached hereto in support of Plaintiffs’ Motion for Partial Summary Judgment, filed on June 2, 2017. 4. All documents that bear a Bates stamp beginning with “DILLARD” were produced by Defendants Carolyn, Tracy and Bruce Dillard and have been provided to the court as they were received from the Dillards’ counsel, except where redactions of sensitive information were required pursuant to this Court’s Joint General Order No. 04-01, effective Aug. 4, 2003. 5. All documents that bear a Bates stamp beginning with “WILCOXSON” were produced to Plaintiffs, pursuant to subpoena, by Ray Wilcoxson and have been provided to the court as they were received from Mr. Wilcoxson. 1 Case 1:15-cv-00069-GNS-HBB Document 89-1 Filed 06/02/17 Page 1 of 4 PageID #: 876 6. All documents that bear a Bates stamp beginning with “P” were produced by Plaintiffs to Defendants and have been provided to the court as they were produced to Defendants. 7. All documents that bear a Bates stamp beginning with “SOUTH CENTRAL BANK” were produced to Plaintiffs, pursuant to subpoena, by South Central Bank and have been provided to the court as they were received from the South Central Bank, except where redactions of sensitive information were required pursuant to this Court’s Joint General Order No. 04-01, effective Aug. 4, 2003. 8. Attached to this Declaration as Exhibit A is Plaintiffs’ Statement of Undisputed Facts, along with true and correct copies of excerpts from the Depositions of Carolyn Dillard, taken September 12, 2016; Tracy Dillard, taken September 12 and 13, 2016; and Bruce Dillard, taken September 13, 2016. 9. Attached to this Declaration as Exhibit B is a true and correct copy of excerpts from Tracy Dillard’s Responses to Plaintiffs’ First Set of Requests for Admissions, served on May 26, 2016. 10. Attached to this Declaration as Exhibit C are true and correct copies of the Department of Labor ETA Form 790 “Clearance Order” and ETA Form 9142A for May and August 2014 submitted by Tracy Dillard in connection to the employment of H-2A workers, Bates Nos. WILCOXSON_000224-000237, WILCOXSON_000028-000041; P0472- 0478; P0492-0498. 11. Attached to this Declaration as Exhibit D are true and correct copies of the Plaintiff Farmworkers’ 2014 H-2A work visas showing the date of issuance, Bates Nos. DILLARD000060, 110, 194, 247, 302, 393, 444, 501, 555, 611, 667, 765, 847, 900, 964, 1020, 1075, 1137, 1193, 1242, 1300, 1383, 1437 and 1650. 2 Case 1:15-cv-00069-GNS-HBB Document 89-1 Filed 06/02/17 Page 2 of 4 PageID #: 877 12. Attached to this Declaration as Exhibit E is a table summarizing the costs incurred by Plaintiff Farmworkers to begin employment at Defendants’ farm and the reimbursements given Plaintiff Farmworkers by Defendants (“Summary Table of Pre-Employment Costs”); along with the table are true and correct copies of each Plaintiffs’ visas, checks for their first weeks’ wages, and Department of Labor WHD-501 Forms, indicating the number of hours worked in their first week, used to inform the table. 13. Attached to this Declaration as Exhibit F is a true and correct copy of excerpts from Plaintiffs’ Responses to Defendants’ First Set of Interrogatories, served on various dates throughout 2016. 14. Attached to this Declaration as Exhibit G is a Table calculating damages for failure to reimburse pre-employment expenses in the Plaintiffs’ first workweek using data from Exhibit E to this Declaration, Summary Table of Pre-Employment Costs. 15. Exhibit H referred to in Plaintiffs’ Motion for Partial Summary Judgment consists of true and correct copies of cancelled checks to Plaintiff Farmworkers from Defendant Tracy Dillard’s South Central Bank account. These documents will be filed separately under seal with Plaintiffs’ Motion to File Documents Under Seal. 16. Attached to this Declaration as Exhibit I is a true and correct copy of Plaintiffs’ expert’s report drafted by Jorge J. Rivero, titled the Analysis and Report Under the Fair Labor Standards Act, and accompanying exhibits. 17. Attached to this Declaration as Exhibit J is a true and correct copy of the 2014 Agent and Indemnity Agreement between Ray Wilcoxson and Tracy Dillard, signed Apr. 30, 2014, Bates No. WILCOXSON_000067. Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true and 3 Case 1:15-cv-00069-GNS-HBB Document 89-1 Filed 06/02/17 Page 3 of 4 PageID #: 878 correct. Date: _________________ ______________________ Lakshmi Ramakrishnan 4 /s/ Lakshmi RamakrishnanJune 2, 2017 Case 1:15-cv-00069-GNS-HBB Document 89-1 Filed 06/02/17 Page 4 of 4 PageID #: 879 Exhibit 2 Case 1:15-cv-00069-GNS-HBB Document 89-2 Filed 06/02/17 Page 1 of 15 PageID #: 880 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION GAUDENCIO GARCIA-CELESTINO, ) et al., individually and on behalf of all other ) persons similarly situated, ) ) Plaintiffs, ) 2:10 C 542 – MEA – MRM ) Hon. Marvin E. Aspen v. ) ) CONSOLIDATED CITRUS LIMITED ) PARTNERSHIP, ) ) Defendant. ) MEMORANDUM OPINION AND ORDER MARVIN E. ASPEN, District Judge: This matter is before us on remand from the Eleventh Circuit Court of Appeals. Pursuant to the Opinion and Order entered by the appellate court on December 15, 2016, we are directed to apply the common law principles of agency to determine whether Defendant Consolidated Citrus Limited Partnership (“CCLP”) qualifies as a joint employer under the H–2A visa program for purposes of Plaintiffs’ breach of contract claims. Garcia Celestino v. Ruiz Harvesting, Inc., 843 F.3d 1276, 1293, 1295 (11th Cir. 2016). For the reasons stated below, we find CCLP qualifies as a joint employer under the H–2A visa program. BACKGROUND Given the limited scope of our review mandated on remand and our previous detailed explanation of the underlying facts at issue, we briefly address the relevant factual background. Pursuant to the appellate court’s holding that we “need not take further evidence or engage in further fact finding,” we rely on the “factual findings in [our] previous Memorandum Opinion Case 2:10-cv-00542-MEA-MRM Document 283 Filed 05/11/17 Page 1 of 14 PageID 4811 Case 1:15-cv-00069-GNS-HBB Document 89-2 Filed 06/02/17 Page 2 of 15 PageID #: 881 and Order,” as well as the parties’ briefs concerning whether CCLP qualifies as a joint employer under the common law principles of agency. Garcia Celestino, 843 F.3d at 1293; see Garcia-Celestino v. Consolidated Citrus Ltd. P’ship, 2:10 C 542, 2015 WL 3440351, at *1–14 (M.D. Fla. May 28, 2015). CCLP is a citrus fruit grower with numerous groves in Florida. Garcia-Celestino, 2015 WL 3440351, at *1. Plaintiffs represent a certified class of H–2A Mexican guestworkers who picked fruit in CCLP’s groves during either the 2007–2008 or 2008–2009 harvest seasons. Id. In the 2006–2007 harvest season, CCLP began contracting with labor contractors, such as former Defendant Ruiz Harvesting, Inc. (“RHI”),1 and required those contractors to recruit labor through the H–2A visa program. Id. at *2. Prior to harvest season, CCLP supervisors would observe its groves and estimate, based partially on historical data, how many workers would be needed for the harvest. Id. at *4. CCLP would then inform contractors how many workers would be needed to harvest each grove, and the contractors would inform CCLP how many workers they could bring as a logistical matter. Id. at n.11. The contractors, including RHI, alone determined how many workers to hire, which workers to hire, and how to go about hiring those workers. Id. at 3–4. CCLP paid RHI a total “pick and roadside rate” based on “the net number of boxes of fruit harvested as determined by the weight of the fruit as delivered by CCLP’s hauling contractors” to the processing plants. Id. at *5. CCLP paid RHI a minimum amount per weighted box of citrus. Id. That minimum rate covered both the piece-rate wages owed to individual workers for each box picked (“pick rate”) and RHI’s operating costs (“roadside rate”). Id. Those rates varied depending on the grove being harvested. Id. Prior to the beginning of 1 Plaintiffs settled all claims with RHI on May 13, 2013. (Dkt. No. 160.) 2 Case 2:10-cv-00542-MEA-MRM Document 283 Filed 05/11/17 Page 2 of 14 PageID 4812 Case 1:15-cv-00069-GNS-HBB Document 89-2 Filed 06/02/17 Page 3 of 15 PageID #: 882 harvest, CCLP’s supervisors would tour particular blocks and determine an initial pick rate.2 Id. CCLP and RHI would negotiate the rates when crews started at new groves, or otherwise required a rate adjustment, but CCLP ultimately decided the final pick and roadside rate paid to RHI. Id. RHI, however, chose to pay the workers a pick rate, as opposed to an hourly wage, and had total control over the pick rate that was ultimately paid to the workers. Id. at *7. Once harvesting began, RHI dictated when the workers would arrive at their assigned CCLP groves, though CCLP expected them to arrive at some point in the early morning, and RHI transported them to their groves each morning. Id. at *8. CCLP’s supervisors waited by the main entrance for the workers to arrive, and used electronic identification badges, which CCLP created, to record their entrance. Id. Before entering their groves, the workers were required by CCLP to complete the procedures it implemented in an effort to prevent the spread of the citrus canker disease. Id. The workers were required to walk through an anti-bacterial mist before entering or exiting the grove and to dip their picking sacks into a barrel of decontamination solution prepared by CCLP. Id. CCLP further supervised RHI as it rinsed its equipment, such as tubs and high lifts, with the solution, and occasionally inspected RHI’s vehicles to ensure their equipment was decontaminated. Id. Once inside the groves, RHI provided the workers with ladders, picking sacks, and water. RHI further maintained portable toilets in the field. Id. at *9. RHI provided tubs into which the workers dumped their oranges when their picking sacks were full. Id. RHI then used high lifts to load those tubs into a fruit trailer at the end of the day. Id. CCLP’s supervisors would check in on each of RHI’s crews for ten to fifteen minutes each day. Id. During those times, they confirmed that the crew was picking in the right place; tested the fruit; scanned the block to see if 2 CCLP’s groves are separated into “blocks,” which range from 30 to 100 acres each. Id. at *4. 3 Case 2:10-cv-00542-MEA-MRM Document 283 Filed 05/11/17 Page 3 of 14 PageID 4813 Case 1:15-cv-00069-GNS-HBB Document 89-2 Filed 06/02/17 Page 4 of 15 PageID #: 883 any fruit had been mistakenly left on the trees; and checked for garbage, debris in the tubs or trailers, and obvious safety hazards. Id. at *10. The supervisors also ensured that RHI’s crews had enough trailers and attached trip tickets to the trailers. Id. Trip tickets included information about the fruit, the crew, and the pick and roadside rate. Id. CCLP supervisors interacted with RHI supervisors when checking on the workers, but did not directly interact with the workers. Id. If there were any issues that needed to be rectified, the CCLP supervisors would communicate with the RHI supervisors. Id. At all times, CCLP reserved the right to halt the workers activities for any reason, including inclement weather, lapsed insurance, refusal of the processing plants to accept more loads of citrus, or the workers’ performance. Id. at *14. RHI contacted CCLP supervisors to inform them when the workers had completed their picking for the day. Id. at *11. The supervisors would then meet the workers at the gate and record their departure via their electronic identification badges. Id. Afterwards, CCLP supervisors would print a report showing when each worker clocked in and out, which it provided to RHI the following day. Id. In addition to the daily hours report, CCLP also provided RHI with a weekly hours report for each worker. Id. Before sending the total hours report, however, CCLP would deduct up to one hour per weekday to account for travel between the entrance gates and the actual picking sites. Id. RHI would then use that information to calculate the workers’ pay checks.3 Id. After paying the workers, RHI provided CCLP with a final payroll. Id. at *12. CCLP also randomly audited RHI’s recordkeeping by comparing the final payroll RHI forwarded to it with RHI’s actual in-office records. Id. In addition to these payroll reporting procedures, RHI provided documentation that it had properly trained the 3 RHI paid the workers via check for the 2007–2008 harvesting season, but switched to direct deposit for the 2008–2009 season at CCLP’s direction. 4 Case 2:10-cv-00542-MEA-MRM Document 283 Filed 05/11/17 Page 4 of 14 PageID 4814 Case 1:15-cv-00069-GNS-HBB Document 89-2 Filed 06/02/17 Page 5 of 15 PageID #: 884 workers on safety procedures, as well as documentation of its liability, workers compensation, and automobile insurance coverage. Id. at *13. The H–2A regulations required that the “employer” pay workers the higher of the adverse effect wage rate (“AEWR”) or the federal hourly wage rate. The AEWR is “the minimum hourly wage rate that is necessary, in the estimation of the [Department of Labor], to ensure that wages of similarly employed domestic workers will not be adversely affected by the hiring of foreign H–2A workers.” Garcia-Celestino, 843 F.3d at 1285 (citing 20 C.F.R. § 655.100(b) (2006)). In its job clearance orders, which were contracts between RHI and the workers, RHI stated that it would provide supplemental or “build-up” pay to workers if their piece-rate earnings did not amount to the AEWR. Garcia-Celestino, 2015 WL 3440351, at *6. Instead, RHI required the workers to return their build-up pay and threatened that they would be sent home if they did not. Id. at *12. On payday, RHI supervisors would transport the workers to a bank, where they would withdraw their wages and then return their build-up pay to the RHI supervisors. Id. This kickback scheme formed the basis of Plaintiffs’ claims. On September 1, 2010, eight original plaintiff-workers filed a complaint against RHI, Basiliso Ruiz, and CCLP on behalf of themselves and similarly situated individuals, alleging violations of the FLSA, common law breach of contract claims, and violations of Florida’s minimum wage laws. On March 31, 2011, Plaintiffs filed an amended complaint, naming thirty eight worker-plaintiffs and including claims pursuant to the Migrant and Seasonal Agricultural Worker Protection Act (“AWPA”). (Am. Compl. (Dkt. No. 34).) On January 6, 2012, the Court approved a settlement agreement of four plaintiffs as to all defendants, (Dkt. No. 78), and on February 24, 2012 certified a class of “[a]ll temporary foreign workers . . . who were employed pursuant to temporary labor certifications issued to Ruiz Harvesting, Inc. for work during 5 Case 2:10-cv-00542-MEA-MRM Document 283 Filed 05/11/17 Page 5 of 14 PageID 4815 Case 1:15-cv-00069-GNS-HBB Document 89-2 Filed 06/02/17 Page 6 of 15 PageID #: 885 the 2007–08, 2008–09 and/or 2009–10 Florida citrus harvests.” (Dkt. No. 81 at 15.) Plaintiffs’ class allegations concerned only their breach of contract claims and claims under Florida’s minimum wage laws. (Id.) Plaintiffs settled all claims with defendants RHI and Ruiz on May 13, 2013, leaving CCLP as the only remaining defendant. (Dkt. No. 160.) On February 22, 2013, the Court denied Plaintiffs’ motion for summary judgment on all counts against CCLP, granted CCLP’s motion for summary judgment on Plaintiffs’ class-wide Florida minimum wage claims, and held that the FLSA “suffer or permit to work” standard applied for purposes of determining whether CCLP was a joint employer for Plaintiffs’ remaining FLSA and common law breach of contract claims. (Dkt. No. 162.) Applying the “suffer or permit to work” standard to Plaintiffs’ breach of contract claims, we found after a bench trial that CCLP was Plaintiffs’ joint employer during the 2007–2008 and 2008–2009 harvesting seasons for purposes of Plaintiffs’ FLSA and breach of contract claims. Garcia-Celestino, 2015 WL 3440351, at *18 n.26, *19–24. On December 15, 2016, the Eleventh Circuit Court of Appeals reversed our decision in part and held that the common law principles of agency, as opposed to the FLSA “suffer or permit to work” standard, governs whether CCLP was a joint employer under the H–2A program for purposes of Plaintiffs’ breach of contract claims. Garcia-Celestino, 843 F.3d at 1292–93. On remand, we directed the parties to file briefs setting forth their positions as to whether, under the common law principles of agency, CCLP qualifies under the H–2A program for purposes of Plaintiffs’ breach of contract claims. (Dkt. No. 275.) Both Plaintiffs and CCLP filed their briefs on February 17, 2017. (Dkt. Nos. 280–81.) 6 Case 2:10-cv-00542-MEA-MRM Document 283 Filed 05/11/17 Page 6 of 14 PageID 4816 Case 1:15-cv-00069-GNS-HBB Document 89-2 Filed 06/02/17 Page 7 of 15 PageID #: 886 LEGAL STANDARD “[T]he common law principles of agency are the proper standard for determining whether Consolidated Citrus is liable as a joint employer for breach of the plaintiffs’ H–2A work contracts for the 2007–08 and 2008–09 harvest seasons.” Garcia Celestino Inc., 843 F.3d at 1292. We therefore must “consider [CCLP’s] right to control the manner and means by which” Plaintiffs’ work was accomplished. Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323, 112 S. Ct. 1344, 1348 (1992). In doing so, we also look to the following non- -exclusive factors for guidance: (1) “the skill required,” (2) “the source of the instrumentalities and tools,” (3) “the location of the work,” (4) “the duration of the relationship between the parties,” (5) “whether the hiring party has the right to assign additional projects to the hired party,” (6) “the extent of the hired party’s discretion over when and how long to work,” (7) “the method of payment,” (8) “the hired party’s role in hiring and paying assistants,” (9) “whether the work is part of the regular business of the hiring party,” (10) “whether the hiring party is in business,” (11) “the provision of employee benefits,” and (12) “the tax treatment of the hired party.” Id. at 323–24, 112 S. Ct. at 1348 (internal quotation marks omitted) (quoting Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 751–52, 109 S. Ct. 2166, 2178–79 (1989)). ANALYSIS I. Extent of Control We first look to the extent of CCLP’s control over the manner and means by which Plaintiffs accomplished their work. See Quinlan v. Sec’y, U.S. Dep’t of Labor, 812 F.3d 832, 837 (11th Cir. 2016) (“[T]he ‘principal guidepost’ in the Darden test is the ‘extent of control’ the employer exercises over the employee.” (citation omitted)); Eisenberg v. Advance Relocation & Storage, Inc., 237 F.3d 111, 118 (2d Cir. 2000) (considering first the defendant’s control over the “manner and means” by which the plaintiff accomplished her work); see also 7 Case 2:10-cv-00542-MEA-MRM Document 283 Filed 05/11/17 Page 7 of 14 PageID 4817 Case 1:15-cv-00069-GNS-HBB Document 89-2 Filed 06/02/17 Page 8 of 15 PageID #: 887 Absolute Roofing & Const., Inc. v. Sec’y of Labor, 580 Fed. App’x 357, 363 (6th Cir. 2014) (“[E]ach of the [Darden] factors favoring employee status bolster the first factor, ‘the hiring party’s right to control the manner and means by which the product is accomplished.’” (citation omitted)). In determining the degree of CCLP’s control over Plaintiffs, we consider the degree of supervision by CCLP over Plaintiffs work. Antenor v. D & S Farms, 88 F.3d 925, 924 (11th Cir. 1996).4 Furthermore, the “custom of the community as to the control ordinarily exercised in a particular occupation is of importance.” Restatement (Second) of Agency § 220 (cmt. i); see also Reid, 490 U.S. at 752 n.31, 109 S. Ct. at 2179 (“In determining whether a hired party is an employee under the general common law of agency, we have traditionally looked for guidance to the Restatement of Agency.”). In agricultural settings, “the grower is not expected to look over the shoulder of each farmworker every hour of every day.” Antenor, 88 F.3d at 935. A grower’s supervision of workers may thus weigh in favor of finding that it is an employer “whether orders are communicated directly to the laborer or indirectly through the contractor.” Id. (quoting Aimable v. Long & Scott Farms, 20 F.3d 434, 441 (11th Cir. 1994), cert. denied 513 U.S. 943, 115 S.Ct. 351 (1994)); see also Restatement (Second) of Agency § 220 (cmt. d) (“[T]he control or right to control needed to establish the relation of master and servant may be very attenuated.”). 4 Antenor concerned whether a grower was a joint employer under the FLSA “suffer or permit to work standard,” rather than the general common law of agency. 88 F.3d at 929. However, the Eleventh Circuit held that the degree of the grower’s supervision “has more to do with common-law employment concepts of control than with economic dependence.” Id. at 934. The court further held that “a grower’s supervision of farmworkers . . . provides some guidance to our inquiry,” even though “the ‘suffer or permit to work’ standard was developed in large part to assign responsibility to businesses which did not directly supervise the activities of putative employees.” Id. at 934–35 (emphasis in original) (citing Rutherford Food Corp. v. McComb, 331 U.S. 722, 728, 67 S. Ct. 1473, 1476 (1947)). 8 Case 2:10-cv-00542-MEA-MRM Document 283 Filed 05/11/17 Page 8 of 14 PageID 4818 Case 1:15-cv-00069-GNS-HBB Document 89-2 Filed 06/02/17 Page 9 of 15 PageID #: 888 While CCLP required RHI to hire H–2A workers and advised it as to how many workers it required for its groves, it did not control which workers RHI hired, exactly how many workers RHI hired, or how RHI should hire those workers. CCLP further did not dictate how RHI was to manage the workers. For example, RHI had total control over which workers were assigned to specific crews, worker training and discipline, the specific time work days began and ended, and when workers were allowed to take breaks. All of these facts weigh against finding that CCLP was Plaintiffs’ joint employer. However, as we found in our previous Memorandum Opinion and Order, CCLP exercised a high degree of supervision over the workers. Garcia-Celestino, 2015 WL 3440351, at *20–21. CCLP required the workers to begin working at some time in the morning and to fill a particular number of trailers with citrus each day, thereby exercising some control over when the work day ended. CCLP had the right to halt the work of RHI’s harvesters for any reason, including inclement weather, lapsed insurance, crew performance, or processing plants’ schedules. CCLP also dictated which blocks the workers would harvest, advised RHI as to how many workers those blocks would require, and was in control the workers clocking in and out each day. CCLP’s harvesting supervisors visited each RHI crew daily and filled out trip tickets; checked for garbage, debris in tubs or trailers, and safety hazards; and ensured there were toilets, hand washing facilities, and potable water. CCLP also managed and enforced its rigorous citrus canker procedures. It required workers to walk through an anti-bacterial mist when entering or exiting its groves, and to dip their picking sacks into a barrel of decontamination solution, prepared by CCLP. CCLP directly monitored RHI’s workers as they rinsed their equipment. Further, CCLP inspected RHI’s vehicles to ensure that all of its workers, tools, and equipment were decontaminated. CCLP also 9 Case 2:10-cv-00542-MEA-MRM Document 283 Filed 05/11/17 Page 9 of 14 PageID 4819 Case 1:15-cv-00069-GNS-HBB Document 89-2 Filed 06/02/17 Page 10 of 15 PageID #: 889 reserved the right to quarantine workers for a full day after they worked in an infected grove. Considering all of these facts, we find this factor weighs strongly in favor of a finding that CCLP was a joint employer. II. Source of the Instrumentalities and Tools CLLP contends that the “instrumentalities and tools needed by RHI’s workers to perform their harvesting responsibilities were provided exclusively by RHI, and RHI agreed with CLLP to provide all necessary tools and equipment to conduct its harvesting services.” (Def.’s Br. (Dkt. No. 280). at 6.) Specifically, CLLP argues that “[i]n both of its job clearance orders for these two harvesting seasons, RHI promised to provide its workers ‘the tools necessary to perform the described job duties without charge to the worker,’ housing, weekly transportation to/from stores to buy groceries (or three meals a day), and daily transportation to and from the workers’ temporary living quarters and the work sites, in RHI buses.” (Id. at 5.) “RHI also provided the Plaintiffs with drinking water, portable rest rooms and washing stations to use in the groves.” (Id. at 6.) Plaintiffs argue CCLP controlled the source of the instrumentalities and tools, specifically: [T]he facilities on which Ruiz’s crew was employed; . . . the time-keeping and identification card system which was essential for the preparation of payroll records and payment of the workers’ wages; . . . the equipment and chemicals used to decontaminate the members of Ruiz’s crew as part of CCLP’s citrus canker prevention program; . . . [and] the trailers to be filled by members of Ruiz’s crew that were later taken to the processing plants. (Pl.’s Br. (Dkt. No. 281) at 14.) This factor weighs in CCLP’s favor. RHI provided the workers with housing and transportation to and from the groves, and was responsible for providing and maintaining field sanitation equipment. RHI further provided the workers’ picking sacks, ladders, and tubs, as well as the crew leaders’ high lifts. While CCLP did 10 Case 2:10-cv-00542-MEA-MRM Document 283 Filed 05/11/17 Page 10 of 14 PageID 4820 Case 1:15-cv-00069-GNS-HBB Document 89-2 Filed 06/02/17 Page 11 of 15 PageID #: 890 provide timekeeping equipment, as well as the equipment and chemicals for the citrus canker protections, the evidence clearly shows that RHI was the source of the bulk of the instrumentalities and tools necessary for the workers to complete their tasks. III. Method of Payment and the Provision of Employee Benefits CCLP argues that RHI’s control over Plaintiffs’ method of payment weighs in their favor because “RHI was free to pay its workers in any compliant manner it chose, . . . RHI alone determined the Plaintiffs’ piece rates for harvesting activities, . . . [and] RHI made weekly payments to the Plaintiffs through payroll checks or direct deposits.” (Def.’s Br. at 9.) “Method of payment” refers primarily to the hiring party’s control over how much and on what basis the hired party is paid. See Restatement (Second) of Agency § 220(2)(g); see also Antenor, 88 F.3d at 936 (holding that, under the FLSA “suffer or permit to work” standard, “[m]ethod of payment refers to the basis upon which a worker is paid, for example, by the hour or by the piece”). RHI did indeed primarily control the method of payment, as well as pay rates, of the workers. RHI determined the workers would be paid a pick rate, instead of an hourly rate, and set the final pick rate. Furthermore, RHI was responsible for the payment of benefits, such as workers compensation insurance. Accordingly, as we found in our previous Memorandum Opinion and Order, this factor weighs against a finding that CCLP was joint employer. Garcia-Celestino, 2015 WL 3440351, at *21. The evidence shows, however, that CCPL played a meaningful, albeit secondary, role in the payment of the workers’ wages, which is indicative of its control over Plaintiffs. CCLP owned the timekeeping equipment, directed RHI to use direct deposit payments during the 2008–2009 season, clocked the workers in and out every day, created their identification badges, provided daily reports to RHI summarizing the 11 Case 2:10-cv-00542-MEA-MRM Document 283 Filed 05/11/17 Page 11 of 14 PageID 4821 Case 1:15-cv-00069-GNS-HBB Document 89-2 Filed 06/02/17 Page 12 of 15 PageID #: 891 workers’ hours, provided weekly email summaries of the workers’ hours to RHI, deducted time from the workers’ hours before sending the summaries to RHI to account for their travel time from the grove entrance to the picking site, determined that the workers should be paid by direct deposit for the 2008–09 season, and randomly audited RHI’s payroll records. We therefore find that this factor weighs only slightly in favor of a finding that CCLP was not a joint employer. IV. Location of the Work It is undisputed that the harvesters worked on land owned by CCLP, and so this factor weighs in favor of finding that CCLP was a joint employer. V. Irrelevant Factors We find several of the remaining common law agency factors irrelevant for the purpose of determining whether CCLP is Plaintiffs’ joint employer. See Eisenberg, 237 F.3d at 114 (holding that, when balancing the common law agency factors, “a court must disregard those factors that, in light of the facts of a particular case, are (1) irrelevant or (2) of ‘indeterminate weight’”). We find the fact that CCLP is in business is “irrelevant and unhelpful to this analysis, as almost any hiring party is in business.” Weary v. Cochran, 377 F.3d 522, 525 n.1 (6th Cir. 2004). We further find several of the factors are irrelevant because they concern whether Plaintiffs’ were employees or independent contractors, but do not indicate by whom Plaintiffs’ were employed. We therefore find that the skill required, the duration of the relationship between the parties, whether the hiring party has the right to assign additional projects to the hired party, the extent of the hired part’s discretion over when and how long to work, the hire party’s role in hiring and paying assistants, and whether the work is part of the regular business of the hiring party, are all irrelevant for purposes of determining whether CCLP was a joint 12 Case 2:10-cv-00542-MEA-MRM Document 283 Filed 05/11/17 Page 12 of 14 PageID 4822 Case 1:15-cv-00069-GNS-HBB Document 89-2 Filed 06/02/17 Page 13 of 15 PageID #: 892 employer. See, e.g., Hi-Tech Video Prods. v. Capital Cities/ABC, Inc., 58 F.3d 1093, 1099 (6th Cir. 1995) (“[T]he exercise of authority to hire assistants tends to show independent contractor status.” (emphasis in original)); id. at 1098 (“If the work at issue is not a part of the hiring party’s regular business, the hiring party is more likely to enlist the services of an independent contractor on a periodic basis.”); Aimable, 20 F.3d at 443–44 (finding (1) the fact that an independent contractor worked for a farm for several years had “no bearing on the question of whether his employees were employed jointly” by the farm, and (2) that the hired party’s work required little skill was “not relevant as it show[ed] that appellants were employees, but not of whom”). VI. Balancing of the Factors To summarize, CCLP’s control over the manner and means by which Plaintiffs accomplished their work weighs strongly in favor of a finding that CCLP was a joint employer for the purposes of Plaintiffs’ breach of contract claims, as does the location of Plaintiffs’ work. On the other hand, the source of the instrumentalities and tools weighs solidly against such a finding, while RHI’s control over the method of payment weighs slightly against a joint employer finding. However, “the ‘principal guidepost’ in the Darden test is the ‘extent of control’ the employer exercises over the employee.” Quinlan, 812 F.3d at 837 (quoting Clackamas Gastroenterology Assoc., P.C. v. Wells, 538 U.S. 440, 448, 123 S. Ct. 1673, 1679 (2003)). Accordingly, we place great weight on direct indicia of CCLP’s control over the “manner and means” by which Plaintiffs accomplished their work. See Eisenberg, 237 F.3d at 114. As stated above, CCLP extensively supervised Plaintiffs’ work conditions and the manner in which they accomplished their work. For example, CCLP required the workers to begin their work day early in the morning, required the workers to fill a particular number of 13 Case 2:10-cv-00542-MEA-MRM Document 283 Filed 05/11/17 Page 13 of 14 PageID 4823 Case 1:15-cv-00069-GNS-HBB Document 89-2 Filed 06/02/17 Page 14 of 15 PageID #: 893 trailers, retained the right to halt their work for any reason, dictated which blocks the workers were to harvest, advised RHI as to the number of workers required, controlled the workers timekeeping, engaged in extensive hands on supervision of works sites, and managed the rigorous citrus canker procedures. Moreover, while RHI was primarily in control of the method of payment, CCLP exercised control over the workers by auditing RHI’s payroll procedures, providing summaries of the workers’ hours to RHI, directing RHI to pay workers via direct deposit for the 2008–2009 season, and deducting hours from the workers’ payroll reports based on their travel to and from groves. Taking all of these facts together, we find CCLP was a joint employer within the meaning of the H–2A regulations. CONCLUSION For the foregoing reasons, we find CCLP was Plaintiffs’ joint employer within the meaning of the H–2A regulations. It is so ordered. ____________________________________ Marvin E. Aspen United States District Judge Dated: May 11, 2017 Chicago, Illinois 14 Case 2:10-cv-00542-MEA-MRM Document 283 Filed 05/11/17 Page 14 of 14 PageID 4824 Case 1:15-cv-00069-GNS-HBB Document 89-2 Filed 06/02/17 Page 15 of 15 PageID #: 894 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF KENTUCKY BOWLING GREEN DIVISION __________________________________________ ) MARTIN RICO MURILLO, et al., ) ) Plaintiffs, ) ) vs. ) Civil Action No. 1:15-cv-69-GNS ) Judge Stivers TRACY DILLARD, BRUCE DILLARD, ) Magistrate Judge Brennenstuhl and CAROLYN DILLARD, ) ) Defendants. ) _________________________________________ ) PLAINTIFFS’ STATEMENT OF UNDISPUTED MATERIAL FACTS1 1. The Dillard family farm is known as Tra-Ken Farms. Deposition of Carolyn Dillard, Sept. 12, 2016 (“Carolyn Dillard Dep.”) at 10:22-12:9; Deposition of Tracy Dillard, Sept. 12 & 13, 2016 (“Tracy Dillard Dep.”) at 9:6-10:21. 2. The Dillard family farm is located at 8110 Akersville Road, Fountain Run, Kentucky. Carolyn Dillard Dep. 12:10-11; Tracy Dillard Dep. 9:6-10:21. 3. Bruce Dillard, Carolyn Dillard and Tracy Dillard share ownership of Tra-Ken Farms and share in its profits. Carolyn Dillard Dep. 30:7-20, 69:21-70:20; Tracy Dillard Dep. 9:20-10:3; Deposition of Bruce Dillard, Sept. 13, 2016 (“Bruce Dillard Dep.”) at 9:24-25, 10:12-15, 71:16- 72:12. 4. Tra-Ken Farms grew tobacco over the years, including in 2014. Tracy Dillard Dep. 13:16-14:18; Carolyn Dillard Dep. 12:12-21, 107:1-7, Bruce Dillard Dep. 8:21-9:5. 5. After 2012, Tra-Ken Farms began hiring H-2A workers because of a shortage of local workers. Carolyn Dillard Dep. 83:23-84:3; Tracy Dillard Dep. 28:11-22; Bruce Dillard Dep. 24:21-25:11. 6. Bruce Dillard, Carolyn Dillard and Tracy Dillard jointly decided to hire H-2A guestworkers for employment on the operations of Tra-Ken Farms in 2014. Carolyn Dillard 1 The excerpted, pertinent sections of the depositions of Carolyn Dillard, Tracy Dillard, and Bruce Dillard are attached to this Statement of Undisputed Facts and identified as Ex. A. to Exhibit 1 to the Motion for Partial Summary Judgment, Declaration of Lakshmi Ramakrishnan (“Ramakrishnan Decl.”). Plaintiffs’ Statement of Undisputed Facts Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 1 of 219 PageID #: 895 Dep. 83:23-25, 99:15-100:3; Tracy Dillard Dep. 29:15-23, Bruce Dillard Dep. 24:21-25:19, 28:15-17. 7. Tracy Dillard filed temporary labor certification applications in 2014 seeking admission of two separate groups of H-2A workers, one of which would enter the U.S. for planting work. See Ex. 1, Ramakrishnan Decl.¶ 9 & Ex. B (excerpts from Tracy Dillard’s Responses to Plaintiffs’ First Set of Requests for Admissions, served on May 26, 2016, Response No. 2 ; Am. Ans. to 3rd Am. Compl., ¶¶18-19 (Doc. 70); Tracy Dillard Dep. 28:11-18, 33:4-15. 8. The temporary labor certification applications filed in 2014 by Tracy Dillard sought workers to perform work, among other things, on fields owned and operated by Bruce and Carolyn Dillard. Bruce Dillard Dep. 24:15-27:18, 39:7-20; Carolyn Dillard Dep. 99:15-100:3 9. The H-2A workers admitted as a result of the temporary labor certifications filed in 2014 were relied upon by Bruce Dillard and Carolyn Dillard to plant, top, harvest, house, strip, grade and bale their tobacco crop, because Bruce and Carolyn Dillard hired no other individuals to perform these tasks. Bruce Dillard Dep. 24:15-27:18, 39:7-20; Carolyn Dillard Dep. 63:15- 64:13, 101:5-21, 103:21-104:20, 106:8-108:22; Tracy Dillard Dep. 29:15-18, 61:21-62:11, 79:13-25; Am. Ans. to 3rd Am. Compl. ¶ 42 (Doc. 70). 10. Bruce and Tracy Dillard made 90 percent of the decisions on the farm together, including in 2014. Bruce Dillard Dep. 43:5-17; Tracy Dillard Dep. 61:3-10. 11. Tobacco production on the Dillard family farm begins in February and March, with the seeding of tobacco plants in the farm’s greenhouses. Carolyn Dillard Dep. 48:24-49:3; Tracy Dillard Dep. 22:3-13. 12. When the tobacco plants are about six inches high in May, they are planted, or “set,” in the fields. Carolyn Dillard Dep. 49:1-15; Tracy Dillard Dep. 26:13-25. 13. Planting tobacco takes about a month or longer at Tra-Ken Farms. Carolyn Dillard Dep. 61:13-22. 14. After the plants are set, fertilizer and pesticides are applied to them. Carolyn Dillard Dep. 59:7-60:10. 15. After the tobacco plants are “set,” they are “topped,” a process by which the flowers are broken off the plant so that the tobacco plant’s leaves can spread out and grow. Carolyn Dillard Dep. 49:14-18; Bruce Dillard Dep. 34:10-23. 16. After topping, the tobacco is cut, placed on “sticks” and housed in barns for curing. Carolyn Dillard Dep. 49:19-50:6. 17. After the tobacco is cut, it must remain in the field for several days to “cure” before it is housed in a barn. Carolyn Dillard Dep. 118:6-22; Tracy Dillard Dep. 54:4-55:10. Plaintiffs’ Statement of Undisputed Facts Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 2 of 219 PageID #: 896 18. After the tobacco sticks “cure” in the field for a few days, the sticks are loaded into wagons and taken to barns, where the sticks will be hung and housed. Carolyn Dillard Dep. 120:9-17; Bruce Dillard Dep. 44:8-16, 48:15-23; Tracy Dillard Dep. 52:6-11. 19. Bruce Dillard, Carolyn Dillard and Tracy Dillard decided when cut tobacco sticks had cured sufficiently in the field and were ready to be housed. Carolyn Dillard Dep. 120:13-17. 20. While hanging in the barns, there must be sufficient rain to allow the tobacco plants “to come in season” and be sufficiently moist for stripping. Carolyn Dillard Dep. 120:20-24; Tracy Dillard Dep. 69:22-70:7; Bruce Dillard Dep. 53:19-25. 21. Bruce Dillard, Carolyn Dillard and Tracy Dillard had the authority to determine when each other’s hung tobacco was sufficiently moist and cured that it could be lowered and stripped. Bruce Dillard Dep. 53:19-54:20; Carolyn Dillard Dep. 66:18-23, 120:20-121:25. 22. After the tobacco “sticks” have cured in the barns, the leaves are stripped from the plants, graded and baled. Carolyn Dillard Dep. 50:2-16, 64:25-65:14, 78:20-79:1; Bruce Dillard Dep. 53:12-20. 23. The stripped leaves, sorted by grade, are placed in burlap bags and baled using a hydraulic baling machine. Bruce Dillard Dep. 58:23-3; Tracy Dillard Dep. 85:3-17. 24. A “stick” of tobacco is a stick on which workers place six tobacco plants. Carolyn Dillard Dep. 49:19-50:6; Tracy Dillard Dep. 88:16-21. 25. The decision to cease producing tobacco on the Dillard family farm was made jointly by Bruce Dillard, Carolyn Dillard and Tracy Dillard. Carolyn Dillard Dep. 12:18-13:5. 26. Bruce Dillard, Carolyn Dillard and Tracy Dillard are the owners and principals of Tra- Ken Farms. Carolyn Dillard Dep. 29:23-30:12. 27. Management decisions at Tra-Ken Farms are made jointly by Bruce Dillard, Carolyn Dillard and Tracy Dillard, including choosing the type of labor force, choosing the supervisor in 2014, and deciding when the tobacco was ready for the next phase of production. Carolyn Dillard Dep. 34:3-14, 66:2-23, 68:1-3, 83:23-25, 124:5-16; Tracy Dillard Dep. 16:1-11, 61:3-10; 70:24-71:8; Bruce Dillard Dep. 10:20-11:23, 13:3-18; 23:15-18, 71:16-72:12. 28. Bruce Dillard, Carolyn Dillard and Tracy Dillard are all involved in the annual applications for operating loans for farming on the operation of Tra-Ken Farms. Carolyn Dillard Dep. 39:4-40:13, 56:9-15; Tracy Dillard Dep. 21:24-22:2. 29. The annual operating loans are used to lease farm land for production and to purchase fertilizer. Carolyn Dillard Dep. 39:4-40:13. Plaintiffs’ Statement of Undisputed Facts Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 3 of 219 PageID #: 897 30. Bruce Dillard and Carolyn Dillard own real property on which the Farmworkers were employed during the 2014 tobacco season. Tracy Dillard Dep. 12:19-21; Carolyn Dillard Dep. 102:24-104:13, 106:8-107:7. 31. Bruce Dillard and Carolyn Dillard owned crops that the Farmworkers worked on in 2014- 2015. Am. Ans. to 3d Am. Compl. ¶ 42 (Doc. 70); Carolyn Dillard Dep. 102:24-104:13, 106:8- 13; Bruce Dillard Dep. 24:18-20, 26:25-27:18. 32. Bruce Dillard and Carolyn Dillard own equipment used in the planting and cultivation of the tobacco crop produced by Tra-Ken Farms in 2014. Carolyn Dillard Dep. 58:9-15; Bruce Dillard Dep. 11:13-23; Tracy Dillard Dep. 19:22-20:10. 33. Bruce and Carolyn Dillard own the machinery used to bale the tobacco after stripping. Bruce Dillard Dep. 56:12-57:4. 34. Bruce Dillard and Carolyn Dillard owned barns in which the Farmworkers housed tobacco sticks and hung them after cutting. Bruce Dillard Dep. 51:2-4; Tracy Dillard Dep. 72:11-73:20. 35. Bruce Dillard and Carolyn Dillard own and furnished the housing facilities in which the Farmworkers and the other H-2A workers resided while employed on the operations of Tra-Ken Farms in 2014 and arranged for the housing to be inspected. Carolyn Dillard Dep. 111:10-19, 188:20-192:6; Bruce Dillard Dep. 64:21-67:4; Tracy Dillard Dep. 119:13-16. 36. Bruce Dillard and Carolyn Dillard own the vehicles that were used to transport the H-2A workers on a daily basis between their housing accommodations and jobsite during the 2014 tobacco season on the operations of Tra-Ken Farms. Bruce Dillard Dep. 37:6-20; Carolyn Dillard Dep. 111:10-112:25. 37. Bruce Dillard, Carolyn Dillard and Tracy Dillard were all involved in the decision as to when to start seeding tobacco plants in February or March, 2014 and in seeding. Carolyn Dillard Dep. 55:20-57:5, Bruce Dillard Dep. 11:8-12, 12:9-18, 19:3-25; Tracy Dillard Dep. 25:13-23. 38. Carolyn Dillard was involved in purchasing tobacco seed for Tra-Ken Farms in 2014. Carolyn Dillard Dep. 55:20-57:5. 39. Bruce Dillard, Carolyn Dillard and Tracy Dillard jointly hire the migrant workers employed on the operations of Tra-Ken Farms. Each of them has authority to hire workers for the farm. Carolyn Dillard Dep. 70:21-71:18, 210:11-211:1. 40. The Farmworkers and the other H-2A workers employed during the 2014 tobacco season on the operations of Tra-Ken Farms were employed cutting and loading tobacco in fields owned and farmed by Bruce Dillard and Carolyn Dillard as well as in fields farmed by Tracy Dillard. Bruce Dillard Dep. 43:25-45:9; Tracy Dillard Dep. 61:21-62:3, 79:9-25. Plaintiffs’ Statement of Undisputed Facts Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 4 of 219 PageID #: 898 41. The Farmworkers and the other H-2A workers employed during the 2014 tobacco season on the operations of Tra-Ken Farms were employed stripping tobacco from fields owned and farmed by Bruce Dillard and Carolyn Dillard as well as tobacco from fields farmed by Tracy Dillard. Bruce Dillard Dep. 49:25-50:22; Tracy Dillard Dep. 79:13-25. 42. Bruce Dillard and Carolyn Dillard decided the number of workers to be hired to “set” the 2014 tobacco crop on the operations of Tra-Ken Farms. Carolyn Dillard Dep. 59:1-6, 62:10- 64:9. 43. Tra-Ken Farms used eight H-2A workers to set and top its tobacco crop in 2014. Carolyn Dillard Dep. 59:1-6, 62:10-64:9; Tracy Dillard Dep. 28:4-18, 43:17-19; Bruce Dillard Dep. 23:22-25. 44. Tra-Ken Farms used an additional 22 H-2A workers for cutting and stripping tobacco. Carolyn Dillard Dep. 101:5-21; Bruce Dillard Dep. 40:21-41:1. 45. Bruce Dillard, Carolyn Dillard and Tracy Dillard jointly decided the varieties of pesticides to be applied to the tobacco crop in 2014 and jointly purchased these chemicals. Carolyn Dillard Dep. 59:7-60:10. 46. Bruce Dillard, Carolyn Dillard and Tracy Dillard jointly decided when to cut and harvest the tobacco crop on Tra-Ken Farms’ operations. Carolyn Dillard Dep. 66:2-23; Bruce Dillard Dep. 41:13-25. 47. Bruce Dillard, Carolyn Dillard and Tracy Dillard jointly decide when it is time to strip the tobacco produced on the operations of Tra-Ken Farms. Carolyn Dillard Dep. 66:18-23, 68:1- 3, 121:22-25; Bruce Dillard Dep. 53:19-54:20. 48. Bruce Dillard, Carolyn Dillard and Tracy Dillard jointly decided the piece-rates to be paid workers for cutting and housing and stripping tobacco on the operations of Tra-Ken Farms. Carolyn Dillard Dep. 75:18-76:12; Tracy Dillard Dep. 56:8-58:4. 49. In 2014, workers employed planting or topping tobacco on the operations of Tra-Ken Farms were paid on an hourly basis. Bruce Dillard Dep. 30:16-17, 33:21-34:1; Tracy Dillard Dep. 41:4-5, 43:15-16. 50. In 2014, workers employed on the operations of Tra-Ken Farms were paid on a piece-rate basis for cutting tobacco, based on the number of sticks of tobacco harvested. Bruce Dillard Dep. 42:1-5; Tracy Dillard Dep. 49:22-23, 55:24-56:7, 86:21-87:12. 51. In 2014, workers employed in loading and housing tobacco on the operations of Tra-Ken Farms were paid on a piece-rate basis, based on the number of sticks loaded and housed. Bruce Dillard Dep. 47:18-20; Tracy Dillard Dep. 55:24-56:7, 86:21-23. Plaintiffs’ Statement of Undisputed Facts Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 5 of 219 PageID #: 899 52. In 2014, workers employed in stripping on the operations of Tra-Ken Farms were paid on a piece-rate basis, based on the number of sticks of tobacco handled. Bruce Dillard Dep. 49:7-8; Tracy Dillard Dep. 86:21-23, 88:13-15, 93:2-6. 53. The piece-rate wage rate paid for cutting tobacco at Tra-Ken Farms was raised during the 2014 tobacco season in response to worker complaints. The decision to raise the piece-rate wage rate was made jointly by Bruce Dillard and Tracy Dillard. Tracy Dillard Dep. 56:10-60:14 54. In 2014, workers employed on the operations of Tra-Ken Farms were paid a total of 45 cents per stick for cutting and loading the tobacco. This rate was broken down into 25 cents for cutting and 20 cents for housing the sticks of tobacco. Carolyn Dillard Dep. 171:8-11; 174:2-12; Tracy Dillard Dep. 57:10-58:4. 55. The piece-rate paid for loading and housing tobacco was based on the number of sticks housed by the entire work crew, rather than on the production of each individual worker. Carolyn Dillard Dep. 173:4-174:12; Tracy Dillard Dep. 57:15-25. 56. Carolyn Dillard prepared the payroll records with regard to the employment of the Farmworkers on the operations of Tra-Ken Farms in 2014, including work performed on Tracy Dillard’s tobacco crop. Carolyn Dillard Dep. 34:19-35:10; 139:16-141:15, 167:20-168:20; Bruce Dillard Dep. 63:9-11, 64:7-17; Tracy Dillard Dep. 16:19-21. 57. Carolyn Dillard was in charge of the financial responsibilities at Tra-Ken Farms. Tracy Dillard Dep. 16:19-21; Bruce Dillard Dep. 17:6-16, 69:7-9; 72:1-12; Carolyn Dillard Dep. 168:15-20. 58. Bruce Dillard, Carolyn Dillard and Tracy Dillard did not keep contemporaneous records of the time worked by H-2A workers while employed in 2014 on a piece-rate basis, i.e., by the “stick.” Carolyn Dillard Dep. 80:1-17, 166:13-167:14; Tracy Dillard Dep. 53:19-22, 75:1-7, 85:20-22; 86:21-88:12; 93:2-13; Bruce Dillard Dep. 42:2-25, 46:14-47:20, 49:9-24. 59. There are no records showing the actual time worked by the H-2A workers in 2014 while they were performing tasks compensated on a piece-rate basis. Carolyn Dillard Dep. 159:2- 160:25, 166:20-168:1, 178:17-180:25. 60. The entries on the Dillards’ payroll records purporting to show the hours worked for activities compensated on a piece-rate basis were derived by dividing the individual worker’s workweek earnings by the adverse effect wage rate of $10.10 per hour. Carolyn Dillard Dep. 178:17-180:25, 141:16-23, 167:20-168:2. 61. In 2014, Bruce Dillard, Carolyn Dillard and Tracy Dillard made daily arrangements for the daily transport of the H-2A workers between their housing accommodations and the worksite. Carolyn Dillard Dep. 112:7-25; Tracy Dillard Dep. 51:6-19. 62. During the 2014 tobacco season on the operations of Tra-Ken Farms, Bruce Dillard was authorized to direct the H-2A workers regarding their daily work tasks, including when to work, Plaintiffs’ Statement of Undisputed Facts Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 6 of 219 PageID #: 900 where to work, and what type of work to do. Bruce Dillard Dep. 45:5-7, 54:1-56:11; Tracy Dillard Dep. 70:14-71:22, 74:20-25. 63. Bruce Dillard went out in the fields two or three times a week when workers were topping and cutting tobacco to observe and make sure the job was getting done correctly. Bruce Dillard Dep. 34:5-21, 43:25-44:23. 64. Bruce Dillard on occasion instructed individual workers on how to properly perform their assigned tasks. Bruce Dillard Dep. 34:5-35:10, 44:24-45:7, 54:1-56:11. 65. Bruce and Tracy Dillard observed the Farmworkers’ work. Tracy Dillard Dep. 85:23- 86:9, Bruce Dillard Dep. 34:5-21, 43:25-44:23. 66. Bruce Dillard, Carolyn Dillard and Tracy Dillard were each authorized to give work instructions to individual Farmworkers, often using foreman Pablo Rico as an interpreter. Tracy Dillard Dep. 109:3-7, 110:12-111:19. 67. Carolyn Dillard occasionally drove the tractor used to load sticks of harvested tobacco plants into barns for curing. Carolyn Dillard Dep. 46:23-47:4. 68. Carolyn Dillard occasionally instructed the workers at the jobsite on how to properly perform their job tasks. Carolyn Dillard Dep. 116:7-9. 69. In 2014, Bruce Dillard fired two workers without consulting Tracy. Bruce Dillard Dep. 72:13-73:21. 70. Dillard Farms was investigated by the Department of Labor (“USDOL”) in 2012 for issues related to payment of workers and the Dillards had to pay monies to USDOL as a result of that investigation. Am. Ans. to 3d Am. Compl. ¶ 3 (Doc. 70); Carolyn Dillard Dep. 68:21-70:16, 74:24-76:22, 79:22-83:15. 71. Carolyn, Bruce, and Tracy Dillard’s H-2A agent, Ray Wilcoxson, had advised them prior to the 2014 season that they were supposed to reimburse H-2A workers, like the Farmworkers, for various costs associated with obtaining the job, including for travel. Carolyn Dillard Dep. 93:16-98:14. 72. Carolyn, Bruce, and Tracy Dillard reimbursed their 2013 H-2A workers for various costs incurred by those workers to get from their homes in Mexico to the Dillards’ farm in Kentucky. In 2013, the Dillards reimbursed their H-2A workers amounts such as $472.40 or $449.97. Carolyn Dillard Dep. 93:16-98:14; Tracy Dillard Dep. 98:4-100:8. Plaintiffs’ Statement of Undisputed Facts Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 7 of 219 PageID #: 901 1 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF KENTUCKY BOWLING GREEN DIVISION Civil Action No. 1:15-cv-69-GNS Judge Stivers Magistrate Judge Brennenstuhl MARTIN RICO MURILLO, ET AL., PLAINTIFFS VS. TRACY DILLARD, BRUCE DILLARD, AND CAROLYN DILLARD DEFENDANTS -------------------------------------------------------- VIDEOTAPED DEPOSITION OF CAROLYN DILLARD VOLUME I September 12, 2016 8:30 a.m. Kerrick Bachert, PSC 1025 State Street Bowling Green, Kentucky ------------------------------------------------------ FELICIA B. THOMAS, CCR Barton-Thomas Reporting Post Office Box 1406 Bowling Green, KY 42102 270.782.8814 Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 8 of 219 PageID #: 902 2 CAROLYN DILLARD INDEX EXAMINATION VOLUME I BY MS. RAMAKRISHNAN: 6 - 126 VOLUME II BY MS. RAMAKRISHNAN: 132 - 212 VOLUME I EXHIBITS EXHIBIT A PAGE 14 Allen County PVA Owner and Parcel Information EXHIBIT B PAGE 27 Hart County PVA Owner and Parcel Information EXHIBIT C PAGE 44 Rule 26 Initial Disclosures EXHIBIT D PAGE 68 Bruce Dillard dba Dillard Farms MSPA Narrative and FLSA Narrative EXHIBIT E PAGE 85 Ray Wilcoxson and Phyllis Wilcoxson Agent and Indemnity Agreement EXHIBIT F PAGE 87 Agricultural and Food Processing Clearance Order Period of Employment June 15, 2013 to February 15, 2014 EXHIBIT G PAGE 93 Estimated Reimbursement Schedule For: Tracy Dillard, Employee: Abraham Garcia Camacho EXHIBIT H PAGE 98 Agricultural and Food Processing Clearance Order Period of Employment 5/10/2014 to 02/28/2015 Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 9 of 219 PageID #: 903 3 EXHIBIT I PAGE 102 Defendant Carolyn Dillard's Answers to Plaintiffs' First Set of Interrogatories VOLUME II EXHIBITS EXHIBIT J PAGE 132 Tra-Ken Farms Document To: Ray, From: Carolyn EXHIBIT K PAGE 142 Field tally notes EXHIBIT L PAGE 144 Checks and Notes for Payment EXHIBIT M PAGE 153 U.S. Department of Labor Employment Standards Administration Wage and Hour Division 11/21/14 EXHIBIT N PAGE 167 Checks and Notes for Payment August 8, 2014 EXHIBIT O PAGE 175 U.S. Department of Labor Employment Standards Administration Wage and Hour Division for 8/8/14 EXHIBIT P PAGE 181 Checks Written on 8/25/14 EXHIBIT Q PAGE 188 11-2A Employer-Furnished Housing And Facilities U.S Department of Labor Employment and Training Administration Packet VOLUME I MARKED OBJECTIONS BY MR. HOVIOUS: PAGE 89 LINE 4 Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 10 of 219 PageID #: 904 4 The examination of CAROLYN DILLARD, taken at the Law Offices of Kerrick Bachert, PSC, 1025 State Street, Bowling Green, Warren County, Kentucky, on Monday, September 12, 2016, at 8:30 a.m., upon oral examination and to be used in accordance with the Kentucky Rules of Civil Procedure. APPEARANCES FOR THE PLAINTIFFS: Ms. Lakshmi Ramakrishnan TEXAS RIOGRANDE LEGAL AID, INC. Attorneys at Law 300 S. Texas Boulevard Weslaco, TX 78596 Ms. Caitlin Berberich SOUTHERN MIGRANT LEGAL SERVICES A Project of Texas RioGrande Legal Aid, Inc. 311 Plus Park Boulevard Suite 135 Nashville, TN 37217 FOR THE DEFENDANTS: Mr. Gregg Hovious MIDDLETON REUTLINGER Attorneys at Law 401 South Fourth Street Suite 2600 Louisville, KY 40202 ALSO PRESENT: Mr. Tracy Dillard Mr. Bruce Dillard Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 11 of 219 PageID #: 905 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 5 THE FOLLOWING PROCEEDINGS WERE HELD: MS. BERBERICH: All right. My name is Caitlin Berberich. My business address is at Southern Migrant Legal Services, A Project of Texas RioGrande Aid, 311 Plus Park Boulevard, Suite 135, in Nashville, Tennessee, 37217. Today's date is September 12, 2016. The time right now is about 8:30. We're located at Kerrick and Bachert law offices, at 1025 State Street, in Bowling Green, Kentucky. The Deponent's name is Carolyn Dillard. Do you want to go ahead and swear her in? CAROLYN DILLARD, being first duly sworn, was examined and testified as follows: MS. BERBERICH: And I'm going to go ahead, and for the record, name everyone who's present today. Again, my name is Caitlin Berberich. Also here is Lakshmi Ramakrishnan, attorney for the Plaintiffs. And your name is? THE COURT REPORTER: My name is Felicia Thomas. MS. BERBERICH: Felicia Thomas, the court reporter. Carolyn Dillard. Gregg Hovious, attorney for the Defendants. Also Tracy Dillard and Bruce Dillard. Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 12 of 219 PageID #: 906 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 6 EXAMINATION BY MS. RAMAKRISHNAN: Q. Can you state your full name for the record? A. Carolyn Dillard. Q. Can you spell that for me? A. C-a-r-o-l-y-n, D-i-l-l-a-r-d. Q. Have you ever been deposed before? A. No, ma'am. Q. Okay. So let me tell you a little bit about what we're going to be doing today. You've been placed under oath, so -- MR. HOVIOUS: I've prepared the witness. MS. RAMAKRISHNAN: Okay. Q. -- so answer fully and truthfully. And if you don't understand the question, please say so. If you answer a question, I will conclude that you understood what I asked. Is that fair? A. Yes. MR. HOVIOUS: Object to the form. Q. Please answer verbally and out loud. So no shaking your head up and down, or uh-uh or uh-huh because it's difficult for the court reporter to record. Okay? A. Okay. Q. Please wait until I've finished asking questions before you answer -- Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 13 of 219 PageID #: 907 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 8 A. No, ma'am. Q. Have you ever been convicted for a crime -- or any crime? A. No. Q. Okay. What is your date of birth? A. XX/XX/XXXX. (Omitted from original transcript.) Q. And what is your maiden name? A. Ryherd. Q. Can you spell that for me? A. R-y-h-e-r-d. Q. Okay. Have you ever had any other last names? A. No, ma'am. Q. And where do you live? A. 8110 Akersville Road, Fountain Run, Kentucky. Q. Okay. How long have you lived at that address? A. 47, -8 years. Q. Okay. And does anyone live there with you? A. Just my husband. Q. What's your husband's name? A. Bruce Dillard. Q. And what is your relationship to Tracy Dillard? A. He's my son. Q. And you've been married to Bruce Dillard for 48 years? A. 49. Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 14 of 219 PageID #: 908 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 10 Q. Okay. What do you do for a living? A. What do I do for a living? Q. Uh-huh. A. I -- I'm a housewife and a -- and I just work on the farm. Q. Okay. Would you say you own a farm? A. Yes. We own a farm. Q. Okay. Have you had any other jobs? A. Years ago. Q. Okay. What did you do years ago? A. I worked in an office, and then I worked at a factory. Q. Okay. Did you finish high school? A. Yes, ma'am. Q. Did you go to college? A. One year. Q. One year. And what did you study? A. It was just the general requirements my freshman year. Q. Okay. And then you got married? A. Yes, ma'am. Q. Okay. So you mentioned that you own a farm with your husband. And does it have a name? Do you call it something? A. Tra-Ken Farms. Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 15 of 219 PageID #: 909 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 11 Q. Tra-Ken Farms. Did you ever call it Dillard Farms? A. Well, a lot of people call it Dillard Farms. It's... Q. Okay. How long have you -- when did you give it the name Tra-Ken Farms? A. I don't know. It's several years ago, ma'am. Q. Okay. But it wasn't, like, since -- since -- I mean, can you tell me a little bit about how you got started in farming? A. How we got started in farming? Q. Uh-huh. A. Well, we were dairy farmers. We start -- I mean, Bruce and I worked. And then when we bought the farm, and we bought heifers, and we started milking, and we just -- I mean, we've worked... Q. So was that -- that was after you were married that you started farming or -- A. Yes. Q. Like, several years after or -- A. No. It was, I guess, 40 -- it was 47 years ago, I guess, we started. Q. You started with dairy farming? A. Uh-huh. Q. Okay. And did you ever -- you said you Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 16 of 219 PageID #: 910 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 12 purchased some land. But was there any land that was, like, passed down from family or -- A. No, ma'am. Q. And when did Tracy get involved with your farming? I'm sorry. Is Tracy involved in your farm? A. Yes. Q. Okay. And when did he get involved? A. When he got out of high school. I mean, he always worked on the farm as they were growing up. Q. Okay. And where is your farm located? A. 8110 Akersville Road, Fountain Run. Q. Okay. What kind -- what kind of crops do you grow? A. We grain corn, and beans, and wheat right now. Q. And tobacco? A. We used to grow -- grow tobacco, but no tobacco. Q. When was the last time you grew tobacco? A. Last year. Q. So 2015? A. Uh-huh. Q. Okay. And why -- why aren't you growing it in 2016? A. I'd say -- well, the family, we just decided to go more with grain crops, row crops. Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 17 of 219 PageID #: 911 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 13 Q. Are they -- is it more lucrative, or -- A. Well, it's -- the family can do it better. The... Q. So you don't have to hire workers? A. Uh-uh. No. Q. And you also said you had started in dairy? A. Oh, that's been several years ago, ma'am. Q. So when is the last time you did dairy farming? A. Oh, that was in the '90s. Q. Okay. And do you raise livestock? A. No, ma'am. Q. Have you in the past? A. Several years ago. Q. Was it as recently as, like, 2015? A. No. Q. Okay. Longer back than that? A. Uh-huh. Q. Like 2000? A. 2000 -- yes. Yeah. We had cattle in 2000. Q. You don't remember the last year you had cattle? A. No. Q. Okay. MR. HOVIOUS: Objection. Irrelevant. (Brief discussion off record.) Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 18 of 219 PageID #: 912 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 29 A. Yeah. It's in -- yes, ma'am. Q. Okay. What is Tra-Ken Trucking? A. It's -- we have trucks that we haul our grain with, on -- and their -- it's trucks and trailers. Q. Okay. Like, 18-wheelers -- A. Yes. Q. -- tractor-trailers? A. Yes. Q. And where is it based, your trucking? A. Out of Lafayette, Tennessee. Q. Okay. What is it? A. Lafayette, Tennessee. Q. Okay. And do you do trucking for other farms or just your own? A. Just our own. Q. And how long have you had Tra-Ken Trucking? A. I'm not for sure. Q. Okay. What kind of business is Tra-Ken Farms? Is it, like, a partnership, or do you know? MR. HOVIOUS: Objection to the extent that you seek legal conclusions from this witness. A. I'm not for sure. Q. Okay. Who besides you owns Tra-Ken Farms? A. My husband and I. Q. So you and Bruce Dillard? Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 19 of 219 PageID #: 913 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 30 A. Uh-huh. Q. Anyone else? A. No. Q. What about Tracy Dillard? Does he own Tra-Ken Farms? A. Yes. He's -- he's in with us. Q. Okay. Do you have any kind of agreement regarding the share of profits from the farm with Tracy? A. No. Q. So what happens to the profits of the farm? A. It's just -- we just pay the expenses and it's put back into the farm. Q. Okay. So do you -- do you pay for Tracy's expenses, like, personal things? A. His personal things? Q. Right. A. No. Q. But he's able to take money from the profits of the farm to pay for personal things? A. Yes. MR. HOVIOUS: Objection to the form. Q. Okay. Does anyone besides you, Tracy, and Bruce share in the profits of the farm? A. Yes. Q. Who else? Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 20 of 219 PageID #: 914 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 34 tobacco workers in 2014? A. I don't know. Q. You don't know. Okay. Okay. How are management decisions for Tra-Ken Farms made? A. Well, we sit down and discuss, and then... Q. Okay. A. ...whatever. I mean, it's just -- we just sit down and discuss, and what we think is best is what we do. Q. Okay. And who -- by we, who do you mean? A. Bruce, and I, and Tracy. Q. Okay. And do you divvy up aspects of the farming operation, like, between you? A. Well, we discuss -- yes. Q. Okay. Is there any particular area that you are mostly responsible for in the management of Tra-Ken Farms? A. No. Q. Do you keep track of the money in the accounts? A. Yes. Q. Does anybody else? A. No. Q. Okay. Do you pay bills for the farm? A. Yes. Q. Does anybody else? Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 21 of 219 PageID #: 915 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 35 A. No. Q. Okay. Do you maintain the balance sheets for your accounts? A. Yes. Q. Does anybody else? A. No. Q. Do you write checks to workers? A. Yes. Q. Does anybody else? A. No. Q. Do you know -- do you remember what the gross revenue for Tra-Ken Farms was in 2015? A. No. Q. Or 2014? A. No. Q. Do you think it was more than a million dollars? MR. HOVIOUS: Objection. Asked and answered. Q. You can still answer. A. I -- I don't know. (Tracy Dillard reenters conference room.) Q. You couldn't say whether it was more than a million or less than a million? A. No. MR. HOVIOUS: She just answered that question. Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 22 of 219 PageID #: 916 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 39 Q. Okay. Who -- who was the one that made the arrangements for crop insurance? A. Bruce. Q. Do you take out operating loans? A. Yes. Q. Okay. And do you do -- are you involved in the -- or applying for the loans? A. Yes. Q. Okay. When do you apply for loans? A. Usually in December and January. Q. Every year? A. Every year. Yes, ma'am. Q. Okay. And what do you use the money for? A. For seed and fertilizer purchases. For leases, to pay leases. And equipment rent, or lease, or purchase equipment. Q. Okay. How much -- what is the amount usually that the loans -- that you take? A. I'm not for sure. Q. Do you remember taking a loan for the 2014 season? A. No. Q. Okay. But you -- but you would -- do you remember that you did take a loan? A. Yes. Yes. Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 23 of 219 PageID #: 917 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 40 Q. You do them every year? A. (Witness nods head.) MR. HOVIOUS: Let her ask you a question. THE WITNESS: Okay. MR. HOVIOUS: Okay? And then, if she asks you one, you answer it. THE WITNESS: Okay. MR. HOVIOUS: If she doesn't ask you one, you don't have to answer. THE WITNESS: Okay. Q. When do you typically repay the loans? A. In the fall, winter. Q. Okay. Who decides what to plant and where? A. We all do. Q. Who selects the seed or plant variety? A. Bruce and Tracy. Q. Who decides where to purchase the seeds or plants from? A. It's just -- we get estimates. I mean, you know... Q. Do you also help get estimates for the -- A. No. I don't do that. Q. Who gets the estimates? A. Bruce. They call and see. Q. Who decides how many acres to plant of a Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 24 of 219 PageID #: 918 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 46 A. No, ma'am. Q. Did he work in the tobacco crops? A. Uh-huh. Q. Did he work in other crops? A. Uh-uh. Q. Okay. So, since you don't do tobacco anymore, you don't have Mr. Merchi anymore? A. No. He -- I mean, he helped clean out fence rows and clean out fences. But since -- uh-uh. He hadn't worked for us since 2015. Q. Okay. Do you -- are you in touch with Mr. Merchi? A. I haven't been. I'm not for sure where he's at. Q. Okay. Do you have seasonal workers who work not in tobacco? A. No. Q. In your grain seed farming, do you go to the fields? A. Do I go to the fields? Q. Yes. A. No. Q. No. In the tobacco farming, did you go to the fields? A. Some, not much. Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 25 of 219 PageID #: 919 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 47 Q. Not much, okay. Did you go to the barns in the tobacco farming? A. I drove the tractor some, loading the -- loading the tobacco. Q. Okay. Can you describe this tractor that you drove? MR. HOVIOUS: Objection. Waste of time. A. It's just a tractor. Q. But is it -- is there only one kind of tractor? MR. HOVIOUS: I got to take a break. Okay. Answer the question, and then I got to take a break. A. It's just a tractor. I mean, all the tractors are about the same, that we hook to a wagon and pull through the field that they load the tobacco on. Q. Okay. MR. HOVIOUS: I'd like to take a break, please. Is that okay? MS. RAMAKRISHNAN: Sure. That's fine. (Brief recess taken.) MS. BERBERICH: This is Caitlin Berberich, Southern Migrant Legal Services, 311 Plus Park Boulevard, Nashville, Tennessee 37217. The date is September 12th, 2016. We're back on the record at around 9:35. And we're at Kerrick and Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 26 of 219 PageID #: 920 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 48 Bachert Law Offices, at 1025 State Street, in Bowling Green. And the Deponent's name is Carolyn Dillard. Q. Okay. A. I need to correct something. A while ago I said Bruce was in charge of the insurance, but Tracy was the one that was in charge of the insurance -- Q. Okay. A. -- when we were raising tobacco. Q. Okay. Okay. Mrs. Dillard -- is it okay if I call you Mrs. Dillard? A. Yes. Q. So, as you know, I believe this lawsuit is about your tobacco farming operations, so I want to focus on that. And you-all provided thousands of pages of documents that have a lot of words in them. Okay? So I wonder if you can explain some of them to me. Can you kind of take me through the start to finish of a tobacco season? MR. HOVIOUS: Object to the form. Q. You know, what are the -- what is the process for growing tobacco? A. Process for growing tobacco? MR. HOVIOUS: Object to the form. A. We start out in the spring -- or in February or March -- and I seed the greenhouses. But I use -- we use Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 27 of 219 PageID #: 921 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 49 family, local help, that helps us do that. And then when the plants get to a certain size, usually the last of May -- in May, we start setting. And -- and then from setting, they top. And then from topping, we cut and house. And then from -- after it's housed and it cures in the barn, then we strip. Q. Okay. What does setting mean? A. It's where the -- the migrant workers ride a setter, and they drop plants. And it -- they ride through the field and set the fields of tobacco. Q. Okay. So it's, like, planting? A. Planting, yeah. Q. Okay. And then you said top. What's topping? A. Breaking the flowers out. Q. Okay. Why do you break the flowers? A. It has to be -- they have to be broken out for the tobacco to spread off and grow. Q. Okay. And now, if I saw something in a record that said stick. A. Sticks? Q. What's a stick? A. It's a -- it's a stick. And when they cut, they put six plants on it. Q. Okay. Does a stick have a different meaning Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 28 of 219 PageID #: 922 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 50 during the stripping? A. It's a -- a stick is the same -- it's the same thing. The stick is taken from the field to the barn, housed in the barn. And then stripping, they take it down. And they take the plants off the stick, and strip them, break them, get the leaves off. Q. So they are separating the leaf into pieces? A. Just -- there's so many leaves on the plant. And you make the -- you divide it into different grades. And it's usually three grades. And they strip off so many leaves. And for your lugs, and your bright, and then your red. Q. What was the first word you said? A. Lugs. Q. Lugs, okay. Lugs. And then brights? A. Uh-huh. And then your reds. Q. Okay. Do you remember, in 2014, how many acres of tobacco you grew? A. No. Q. Who decided how many acres of tobacco to grow in 2014? A. Who decided? It's just -- we had so many pounds contracted, so we just tried to put out enough acres to cover our pounds. Q. So you make an -- you make a contract from a Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 29 of 219 PageID #: 923 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 55 record because I'm going to -- we're going to get these fees back. MS. RAMAKRISHNAN: Okay. MR. HOVIOUS: And I want to make sure that I make it very clear that, when we're in here talking about which day in March do you plant seeds in your greenhouse and we spend seven and a half hours -- which you apparently intend to do for each of these witnesses -- I'm going to ask the Judge for my fees back. It's just that simple. And I'm making a record to do that. MS. RAMAKRISHNAN: All right. Okay. Well, I'm going to ask my questions, because -- MR. HOVIOUS: That's what we're here for. MS. RAMAKRISHNAN: Yeah -- because we're going to have some -- make legal arguments on the basis of them. Q. So you start seeding in the greenhouse in February or March? A. Uh-huh. Q. Is there any -- who decides when to start the seeding? A. We do. I mean... Q. Okay. Are you involved in that decision -- A. Yes. Q. -- to start the seeding? Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 30 of 219 PageID #: 924 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 56 A. (Witness nods head.) Q. Is that something you do -- A. Uh-huh. Q. -- seeding the tobacco plants? Okay. And do you -- did you seed tobacco plants in 2014? A. Yes. Q. And where is that greenhouse? A. There behind our house. Q. Okay. And did you -- were you involved in purchasing the seed, the tobacco seed, in 2014? A. Yes. Q. Did you help purchase it personally? A. Yes. Q. Anyone else? A. Bruce. Q. Bruce, okay. Is there a particular place that you bought seed from in 2014? A. It's just -- it's just where we get our seed. It's a... Q. Do you purchase seed in order to produce a particular type of tobacco? A. Uh-huh. Q. Do you make determinations about whether some seed is better quality than others? A. Yes. Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 31 of 219 PageID #: 925 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 57 Q. And you are -- and you are familiar with those? A. Uh-huh. Yes, ma'am. Q. Okay. And you also make the decision that we should buy this seed? A. Yes. Q. Okay. Prior to setting tobacco, do you have to prepare the soil? A. Yes. Q. Okay. What is involved in preparing the soil? A. They have to turn it, disk it, and spread fertilizer, and they put chemicals on it. Q. Okay. In 2014, who prepared the soil by turning, disking, putting chemicals? A. Bruce and Tracy. Q. Anyone else? A. No. Q. Do you hire seasonal workers to prepare soil? A. No. Q. Is there a particular machinery or equipment used to prepare the soil? A. Just the disk and chisel plow. Q. What's a disk? A. It's -- MR. HOVIOUS: I don't know. BRUCE DILLARD: I don't know. Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 32 of 219 PageID #: 926 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 58 MR. HOVIOUS: Just slip out. Just slip out. Just slip out the room. BRUCE DILLARD: Yeah. MR. HOVIOUS: Just slip out. A. I don't -- I can't explain what a disk is. Q. Okay. Is it a -- is it a big machine? (Bruce and Tracy Dillard exit conference room.) A. It's just something you pull behind a tractor. Q. Okay. And who owns that equipment? A. We do. Q. Okay. Do you own all of this equipment, or do you rent or lease equipment? A. We lease equipment. Q. Okay. Who is we? A. Bruce, Tracy and I. Q. Okay. Do you hire anybody to operate machinery? A. Michael -- Michael Boyd helped to drive the equipment. Q. Okay. And you said, after the plants are ready, you set them. A. Uh-huh. Q. How many workers are needed for setting plants? A. Four. It just takes four people on each setter. Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 33 of 219 PageID #: 927 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 59 Q. Okay. Do you remember how many people you employed to set tobacco in 2014? A. It was just eight. Q. Okay. Who decided how many people to work for setting the tobacco? A. Bruce and I did. Q. After the tobacco is set, do you apply pesticides? A. Yes. Q. And do you require workers to do it? A. No. Q. Who does the pesticide? A. Bruce and Tracy. Q. Okay. And after you plant the tobacco, do you apply more fertilizer? A. Yes. Q. And do you need workers to do that? A. No. Q. Okay. In 2014, who purchased the pesticides? A. We did. Q. Who is we? A. Bruce and Tracy. Q. And yourself? A. Uh-huh. Q. You decide together what pesticides to Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 34 of 219 PageID #: 928 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 60 purchase? A. Yes. Q. Okay. And who purchased the fertilizers? A. Bruce and Tracy. Q. And yourself? A. Uh-huh. Q. And you decide together -- A. Yes. Q. -- what fertilizers to purchase? A. (Witness nods head.) Q. Okay. After the plants are set, what happens next? A. Well, it rains, and they grow, and they have to be plowed. Of course, we do that ourselves. Q. Okay. A. And -- and then after they get to -- it's usually about three months, and then that's when you break the flowers out. That's what we call it, breaking the flowers out. Q. So you said you had eight workers, in 2014 -- A. Uh-huh. Q. -- involved in setting the tobacco. A. (Witness nods head.) Q. What did they do in the three months after they set the tobacco? Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 35 of 219 PageID #: 929 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 61 A. Well, they broke flowers. I mean... Q. Okay. Is it -- is there, like, a downtime, where there's nothing for the workers to do? A. I mean, if it rains, there may be a day or two to three days, you know. Q. Okay. But between the setting of the tobacco and the flowering, where they break the flowers, is that a three-month delay? A. I think it's around -- I'm not for sure, but I think it's about three months between. But, I mean, there's something to do. Q. What kinds of things? A. Well, it takes a while to set tobacco. Q. Uh-huh. Okay. How long does it take? A. Well, you can just set about 20 acres a day. Q. And then -- so, how many days do you think it takes -- or took in 2014? A. I'm not sure. Q. Okay. Would it be more than a month? A. Oh, yeah. It will take a month or longer. Q. Longer than a month. Longer than two months? A. No. Q. Is it the case that the ones that you set first will be, you know -- by the time you finish, that you can get started on the flowering for the ones you set first? Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 36 of 219 PageID #: 930 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 62 A. No. It takes a little while. Q. Okay. Will there be downtime, where there's not anything for those workers to do? A. Yes. Q. Okay. What do they do? A. Sometimes they chop out. Q. What's chopping out? A. You take a hoe, and walk through the patch, and chop out the tobacco -- chop out the weeds. Q. Okay. How many workers are needed for the topping? A. We usually just start out with eight. I mean, that's a pretty fast job. Q. And how long are they topping for? A. Well, until they get -- get the tobacco. Q. Okay. In 2014 -- I'm going to come back to this a little bit later, too -- but, in 2014, those eight workers that you mentioned -- A. Uh-huh. Q. -- were they foreign worker? A. Migrant workers. Q. Migrant workers? A. Yes. Q. Were they -- did they come here with the H-2A visas? Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 37 of 219 PageID #: 931 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 63 A. Yes. Q. Do you know what H-2A visas are? A. Yes. Q. Okay. So the eight workers we're talking about -- A. Uh-huh. Q. -- and the tobacco farm we're talking about -- A. Uh-huh. Q. -- is where the H-2A visa workers were? A. Uh-huh. Q. Okay. MR. HOVIOUS: Please let her finish her question before you answer. THE WITNESS: Okay. Q. Did Tra-Ken Farms, in 2014, have areas where the H-2A workers did not work in the tobacco? MR. HOVIOUS: Object to the form. Q. Let me try again because it might have been confusing. In your tobacco -- A. Uh-huh. Q. -- did you have any fields or farms where you did not use H-2A workers in 2014? A. We use the H-2A in all of our -- I mean, all of our setting. Yes. Q. For setting -- Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 38 of 219 PageID #: 932 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 64 A. Uh-huh. Q. -- tobacco? A. Yeah. Uh-huh. Q. Similar question for the deflowering. Was there any -- in your tobacco operations in 2014, when workers -- were there any workers -- sorry. Did you use H-2A workers for deflowering on all of your tobacco operation -- A. Yes. Q. -- in 2014? A. (Witness nods head.) Q. Or topping. I'm sorry. A. Uh-huh. Q. Topping. Okay. How long do they do the topping? A. It just -- I'm not sure. Q. Okay. Is there any equipment used in topping? A. No. Q. So it's just by hand? A. Uh-huh. Q. Do you irrigate your farms? A. No. Q. You just -- do you rely on the rain? A. Rain. Q. You mentioned something a little I want to get Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 39 of 219 PageID #: 933 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 65 back into. What is grading for? What is grading the tobacco for? A. That's when we strip. And that's when you take it to market. It has to be graded. (Tracy Dillard reenters conference room.) Q. Okay. Do different -- like, you mentioned -- I'm going to get this wrong -- lugs, brights, and reds. A. Yes. Q. Okay. Are those the different grades of tobacco? A. Yes. Q. And do diff- -- do the reds sell for a different price than the lugs? A. All three sell for a different price. Q. Okay. Which one gets the best price? A. I'm not sure. Q. Okay. A. It just -- I'm not sure. Q. Are there any factors that affect how much high grade tobacco you get? A. Any factors? Q. Like rain, or sunshine, or... MR. HOVIOUS: Object to the form. A. No. Q. Okay. So it's always the same? Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 40 of 219 PageID #: 934 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 66 A. I'm not sure. Q. Okay. Is the -- is the process time sensitive? In other words, do you have to do the cutting within a particular window of time in order to get a higher quality yield? A. Yes. Q. Okay. Who decides how quickly it has to be done? A. Who decides? I -- I guess we all do. Q. Okay. A. I mean... Q. Who is we all? A. Bruce, and I, Tracy. Q. So you-all go out and say, "We need to get this cut right away?" A. Well, tobacco, it turns yellow. And the leaves fall off if you leave it in the field. Q. Okay. Similarly, who decides when to -- when the -- when the tobacco leaves are curing in the barn, who decides when it's time to strip them? A. We do. Q. Who is we? A. Bruce, Tracy, and I. Q. Okay. What kinds of things go wrong in a tobacco season? Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 41 of 219 PageID #: 935 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 68 Q. Okay. Who made the decisions about when the tobacco was ready to be stripped in 2014? A. Bruce, Tracy, and I. Q. And who dealt with bad weather or other problems in the tobacco farming in 2014? A. Bruce, Tracy, and I. Q. Okay. (Brief discussion off record.) (Document marked Exhibit D to deposition.) Q. Okay. Can you flip through this, and take a look and see what it says? And let me know when you're ready. A. Okay. Q. All right. Have you ever seen these documents before? Do they look familiar to you? A. These? No, ma'am. Q. Okay. Do you -- so these documents were provided to us from the Department of Labor in response to a subpoena of records. And they pertain to an investigation of your farm -- of Dillard Farms is what they refer to it -- in 2012. Do you recall being investigated by the Department of Labor in 2012? A. I remember this lady and man coming out. Q. Okay. And they were from the Department of Labor? Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 42 of 219 PageID #: 936 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 69 A. Yes, ma'am. Q. Do you know why there was an investigation? A. They were looking over our books. Q. Okay. What kind of books? A. Our -- where we kept up with the -- where the people worked for us. Q. Okay. So, like, your pay records? A. Uh-huh. Q. All right. Do you recall having to pay a fine in connection with the investigation? A. Yes. We paid $1,500. Q. And did they tell you why you had to pay a fine? A. We wasn't -- we wasn't paying -- we were paying what everybody else was paying at the time. But I think we was supposed to have been -- I'm not for sure. I've forgotten. Q. Okay. If you look on the first, top page, at the bottom, it says DOL 000009. A. Uh-huh. Okay. Q. Okay. Can you read the paragraph starting with the subject, just the first sentence? MR. HOVIOUS: The document speaks for itself. Q. You can read it. It starts with the subject. A. "The subject employer is a farm owned and Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 43 of 219 PageID #: 937 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 70 operated by husband and wife Bruce and Carolyn Dillard." Q. And their. A. "And their son Tracy Dillard." Q. Okay. And then it says each owns equal parts, right? A. Yes. Q. Now, was that the situation in 2012, that you had a farm owned by Bruce and Carolyn and their son, owning equal parts? MR. HOVIOUS: Object to the form. A. Yes. Q. The statement is correct then? Okay. Is that -- was that correct in -- was that correct in 2014? You had a farm owned and operated by you, Bruce Dillard, and Tracy Dillard, and each owns equal parts? A. Yes. Q. What about now? Do you have a farm that you own in equal parts with Tracy and Bruce? MR. HOVIOUS: Object to the form. A. Yes. Q. Okay. And then if you read a little bit further down to the top of the second paragraph, it says, "The Dillards solicited, hired, employed, and transported 21 migrant agricultural -- 21 migrant agricultural workers to harvest the tobacco." Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 44 of 219 PageID #: 938 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 71 Do you see that? A. Yes. Q. Does that sound right? Do you remember hiring 21 workers -- MR. HOVIOUS: Object to the form. Q. -- in 2012? MR. HOVIOUS: Object to the form. A. Yes. Q. Who decided to hire the 21 workers, the migrant workers, in 2012? A. Bruce, Tracy, and I. Q. Had you hired migrant workers like that before? A. Several years ago. Q. Okay. Did you do it in 2011? A. No. Q. So why did you hire workers in 2012, but not in 2011? A. We couldn't find no help. Q. Okay. Now, if you flip the page to DOL 000010, in the top paragraph, the second sentence -- A. Transportation? Q. It should be joint employment. A. Oh. Q. The top paragraph, under joint employment. A. Oh. Oh. Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 45 of 219 PageID #: 939 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 74 This is over. It's been paid for. We're here for 2014. MS. RAMAKRISHNAN: Yes. MR. HOVIOUS: So we're wasting our time. MS. RAMAKRISHNAN: That's what you think. MR. HOVIOUS: That's what I know. MS. RAMAKRISHNAN: Okay. Just wait for the motion for summary judgment. MR. HOVIOUS: I'm waiting for you to finish this deposition. Q. Did you -- did you -- was there any person, in 2012, that set the rate of pay for the workers, like, what the amounts that they were going to be paid? A. I don't know. Q. Okay. In 2012, you used the services of a farm labor contractor named Jose Bravo; is that right? A. That's correct. Q. Why did you use Mr. Bravo for farm labor contracting? A. Well, we had used him years before, had used -- got some migrant workers in. Q. Okay. And who decided to make the contract with Mr. Bravo in 2012? A. Bruce, and I, and Tracy. Q. Okay. If you flip to the page marked -- it's the last two pages -- it says DOL 000110. I think you Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 46 of 219 PageID #: 940 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 75 have to keep going a little bit. Keep going. Keep going. There you go. A. Uh-huh. Q. Okay. If you look at this page, and the next one, and the next two after it, do you recognize these documents at all? A. Yes. Q. Okay. What is this? A. It was their payment of services, what was in their contract to be paid. Q. And who made this contract? A. I'm not sure. Q. Okay. Do you recognize the handwriting on that page, the one you're looking at, DOL 000110? MR. HOVIOUS: We'll stipulate that it's Tracy's handwriting. A. Yes. Tracy. Q. Okay. So it -- do you see where it says, "cutting and housing" -- A. Yes, ma'am. Q. -- "45 cents per stick?" A. (Witness nods head.) Q. Who determined that -- that rate of pay for workers on this contract? A. That was what was in our contract for -- from Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 47 of 219 PageID #: 941 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 76 the Department of Labor. Q. Okay. This is a contract that was made with Mr. Bravo -- A. Uh-huh. Q. -- correct? A. (Witness nods head.) Q. Who decided that they -- that you guys were going to pay 45 cents per stick? MR. HOVIOUS: Objection. Asked and answered. A. We did. Q. Who is we? A. Bruce, and Tracy, and I. Q. Okay. And then if you look down, it says stripping, .36 cents per stick? A. Yes. Q. Who decided that for stripping? A. We did. Q. What did the worker have to do to get 45 cents per stick? MR. HOVIOUS: This case is not about 2012. I'm going to instruct you not to answer anymore questions concerning Exhibit D. MS. RAMAKRISHNAN: On what basis? Is there a privilege, or -- MR. HOVIOUS: Because you're wasting our time. Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 48 of 219 PageID #: 942 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 78 stick for -- on that piece rate? MR. HOVIOUS: Object to the form. A. He had to cut and house the tobacco. Q. And how is the stick counted? A. They're counted in the fields. Q. After they're cut? A. Yes. Q. Okay. So just describe the process of -- for, in that time, in 2012, to get 45 cents, they did their stakes in the field -- the sticks in the field, and each one was counted. And then what happened to the sticks? A. They were taken to the barn and housed in the barn. Q. And for all of that, they got 45 cents -- A. Cents. Q. -- for each stick? A. (Witness nods head.) Q. And then what do you get -- do to get 36 cents per stick for stripping? A. They take it down, and strip, put it into three different grades, grade it. And then they have to bale it. And -- Q. Okay. A. -- when they get so much stripped, then it's put into bales. And that's called stripping and baling Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 49 of 219 PageID #: 943 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 79 it. Q. So it's the same stick? A. Yeah. It's the same stick. Q. The same stick comes down. A. Down, uh-huh. Q. And you do all those other things. And then you count the sticks that are left over? MR. HOVIOUS: Object to the form. A. Each individual count -- I mean, they count their own sticks. When they're stripping, they put them in piles, in bundles. Q. Okay. But the sticks -- they put the sticks -- they put the actual sticks in a pile and then count those? A. Uh-huh. Q. Okay. MR. HOVIOUS: She did not ask you a question. THE WITNESS: Oh, I'm sorry. MR. HOVIOUS: That's okay. She just made a sentence. And we don't answer sentences. THE WITNESS: Okay. Q. In 2012, did you provide any records showing the hours or sticks done by the workers to the DOL? MR. HOVIOUS: Don't answer the question. A. I don't know. Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 50 of 219 PageID #: 944 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 80 Q. In 2012, did you -- if people were getting paid by the stick, did you also keep track of their hours? MR. HOVIOUS: Object to the form. Object to the waste of time. Not reasonably calculated to lead to the discovery of admissible evidence. Q. You can answer. A. (No response.) MR. HOVIOUS: If you know. A. I don't know. Q. Is it your practice in the last few years to keep track of all the hours of people working? A. They're -- if they're working by the hour, we keep track of the hours. And if they're working by the stick, we keep track of the sticks. Q. If they're working by the stick, you don't keep track of the hours? A. No. Q. Do you recall the DOL investigator telling you you need to keep track of the hours in 2012? A. No, ma'am. MS. RAMAKRISHNAN: I'm going to ask about this document. I think that objection is ridiculous. Q. Can you turn to page -- MR. HOVIOUS: I don't care what you think. I care what Judge Brennenstuhl thinks. Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 51 of 219 PageID #: 945 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 81 MS. RAMAKRISHNAN: Judge Brennenstuhl -- MR. HOVIOUS: Uh-huh. MS. RAMAKRISHNAN: -- permitted the discovery of these documents and documents back to 2012, because it's relevant. And discovery does not have to pertain to the year in which the workers worked in these types of cases. They go to some of the defenses in this lawsuit. They go to some of the claims, the entitlement to damages, what people knew, what their practices were over time. All of these things are relevant. And I think Judge Brennenstuhl will understand and comprehend why we need this information dating back. So I'm quite happy to take it in front of the Judge and ask him, and explain to him the relevance, significance of the investigation, and on their farming practices, what this -- how this investigation shaped their farming practice in subsequent years. And I'm sure Judge Brennenstuhl will understand that. And I'm quite happy to take that issue with him. MR. HOVIOUS: Objection. Waste of time. I'd like to take a break, please. (Brief recess was taken.) MS. BERBERICH: This is Caitlin Berberich. We're back on the record. I work at 311 Plus Park Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 52 of 219 PageID #: 946 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 82 Boulevard, Nashville, Tennessee, 37217. The date is September 12th, 2016. The time, now, is about 10:40. The current -- the address that we're located at is Kerrick and Bachert, at 1025 State Street, in Bowling Green. And the Deponent's name is Carolyn Dillard. Q. Okay. Back on the record. Okay. Can you take a look at this Exhibit D? A. Okay. Q. Flip to the page that says DOL 000013. A. Okay. Q. Did you find it? And do you see the word disposition? A. Yes. Q. Okay. I'm going to read the sentence that says, "This investigator held a conference -- held a final conference with Mrs. Dillard, owner, on December 4th, 2012, at her farm." Do you recall having a conference with the investigator in 2012? A. No, ma'am. Q. Do you recall -- you don't recall -- you mentioned earlier that you remember people from the DOL coming to the farm. A. Yes. Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 53 of 219 PageID #: 947 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 83 MR. HOVIOUS: Objection to the form. Q. Okay. And did you meet with them? A. Yes. Q. Did anyone -- did Tracy meet with them? A. I don't think so. Q. Did Bruce meet with them? A. No. Q. Okay. And then here, it says, "An agreement for future compliance was obtained from Mrs. Dillard." A. Okay. MR. HOVIOUS: There's not a question on the table. Q. Do you recall agreeing to comply with the DOL requirements? A. I don't remember. Q. Okay. Okay. We'll move on then. After 2012, how did you get workers for your tobacco operations in 2013? A. We went through the Department of Labor. Q. Okay. And you -- in order to get foreign workers? A. Uh-huh. Q. And who decided to use foreign workers after this, after 2012? A. Bruce, Tracy, and I. Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 54 of 219 PageID #: 948 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 84 Q. And why did you-all decide to use foreign workers? A. We -- we just needed -- we needed help. Q. Okay. Do you know who Ray Wilcoxson is? A. Yes. Q. Who is Ray Wilcoxson? A. He's the agency that we went through to get... Q. Okay. How did you find out about Ray Wilcoxson? A. He -- he was the agency there that -- our local agency that got the foreign workers in. Q. Did you reach out to Mr. Wilcoxson, or did he advertise to you? A. We called him. Q. Who called him? A. Bruce, Tracy or I. Some of us did. Q. Was it one person that spoke to him? A. I think so. Q. Do you remember who it was? A. No, I don't. Q. What did Mr. Wilcoxson say about bringing in foreign workers? A. He just -- I'm not for -- I'm not for sure. Q. Okay. Was it -- was it you that he spoke to? A. When we first started? I'm not for sure. Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 55 of 219 PageID #: 949 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 93 Q. Okay. MR. HOVIOUS: Stipulate. Q. Okay. In 2013, did you help pay the foreign workers? A. 2013? Q. Uh-huh. A. Yes. Q. Okay. You helped write their paychecks? A. Yes. Q. Okay. Did you help pay for their travel expenses to go from their home country to your farm? A. I'm -- I don't know. Q. Okay. (Brief discussion off record.) (Document marked Exhibit G to this deposition.) Q. Okay. I've handed you what's been marked Exhibit G. It says at the bottom Dillard002004. Do you see that? MR. HOVIOUS: I want you to take as much time as you need to review this document before you start answering questions about it. A. Okay. Q. Okay. Does this document, the first page -- that's Dillard002004 -- look familiar to you, the first page? Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 56 of 219 PageID #: 950 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 94 A. Yes. Q. Have you seen that before? A. Yes. Q. Do you know what it is? A. It's reimbursement where -- their expense to come here. Q. Okay. So, in 2013, this was sent so that you could reimburse the expense to come here? A. Yes. MR. HOVIOUS: That's not question. Make her ask a question -- THE WITNESS: Oh. MR. HOVIOUS: -- before you answer anything. THE WITNESS: Okay. Q. Was it your understanding, in 2013, that the workers should be reimbursed for their travel expenses to come into the United States? A. We did pay their travel. Q. Okay. In 2013? A. Yeah. Q. Okay. If we turn to the next page, it says on the bottom, Dillard002005. A. Yes. Q. Okay. Do you see, at the top check? A. Yes. Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 57 of 219 PageID #: 951 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 95 Q. Can you tell me the date on that check? A. 7/12 of '13. Q. And who is it made out to? A. Abraham Garcia -- I don't -- I can't pronounce the last name. Q. Okay. Is this your handwriting on that check? A. Yes. Q. Okay. And do you remember writing checks for reimbursing travel expenses in 2013? A. I wrote checks. Yes. But I can't remember every one of them. Q. Okay. And the one below it, do you know whose handwriting is on that check? A. I made that out, I think. Q. Okay. But it's signed by Tracy Dillard? A. Yeah. Q. So it looks like, if we turn back to the first page, this is for employee Abraham Garcia Camacho, correct? A. Yes. Q. And it shows a total of -- total due within first week of 449.97. Do you see that? A. Uh-huh. Q. Okay. And then compared to the two checks on the second page, it comes out to -- Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 58 of 219 PageID #: 952 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 96 A. Both. Q. -- the 449.97, correct? A. Yes. Q. Okay. MR. HOVIOUS: Show an objection to the form of the last one, please. Q. And then similarly -- MR. HOVIOUS: If you give me a moment to object before you answer, that will help me. Q. Similarly, if you go to the next one that says, on the bottom, Dillard002304. Do you see it says, "Employee: Bulmaro Salvador Martinez?" A. Yes. Q. Okay. And do you see that it says total due within first week of arrival $472.40? A. Yes. Q. Okay. And then if you turn to the next page, marked Dillard002305. A. Yes. Q. Do you recognize the handwriting on this document? A. Yes. Q. Whose is it? A. It's where I printed -- it was printed instead of writing it in cursive. Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 59 of 219 PageID #: 953 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 97 Q. It's your handwriting? A. Yes. Q. Okay. But it's signed by Tracy Dillard? A. Tracy. Q. Okay. And what's the amount? A. 472.40. Q. Okay. MR. HOVIOUS: We'll stipulate that's the same number. Q. So, in 2013, you paid workers, according to this -- A. Uh-huh. MR. HOVIOUS: Objection. Q. Did you -- in 2014, did you pay workers the amount proposed in this estimated reimbursement schedule? MR. HOVIOUS: Object to the form. Clearly, the checks are made on Tracy Dillard -- with his signature. And, again, you're just trying to mislead the witness. Q. Okay. Do you -- in 2013, did Tracy Dillard pay checks to reimburse in accordance with this reimbursement schedule? A. I don't remember. Q. Okay. A. But if it... Q. But your handwriting is on these checks? Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 60 of 219 PageID #: 954 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 98 A. Yeah. Yeah. Q. You filled the checks out, right? A. Yeah. Yeah. Q. And where did you look to get the information for those checks -- for these checks? How did you know what to write in these checks? MR. HOVIOUS: Object to the form. Multiple questions. A. Ray Wilcoxson is the one that sent these forms. Q. Okay. Did you look -- did you look -- did you look on these forms in order to fill out these checks? A. Yes. Q. Okay. All right. Now, the next year, 2014, is the year that the Plaintiffs came. MS. RAMAKRISHNAN: There is two documents. (Brief discussion off record.) (Document marked Exhibit H to this deposition.) Q. I'm handing you what has been marked as Exhibit H. Okay? And the first page is marked P0472. Do you see that? A. Yeah. Yeah. Yes. Q. Okay. Can you look under box no. 9? Do you see a box no. 9 on the first page? It's a box with -- MR. HOVIOUS: Take your time to thumb through it before you answer the questions, please. Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 61 of 219 PageID #: 955 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 99 A. Yes. Q. Okay. And it says, "Anticipated period of employment, 5/10/2014 to 2/28/2015." A. Yes. Q. Okay. And then below it, in box 10, it says, "Number of workers requested, 8." A. Yes. Q. Okay. Earlier, we talked about planting tobacco on your farm. A. (Witness nods head.) MR. HOVIOUS: Object to the form. Q. Correct? Is that correct? A. Yes. MR. HOVIOUS: Object to the form. Q. Okay. All right. Is this document connected with eight workers you brought to work on your farm? A. Yes. Q. Okay. So you -- did you decide, with Tracy and Bruce, to bring in eight workers to do planting on your farm in 2014? A. Yes. Q. Okay. Did you understand -- did you know that Tracy was going to create this application in order to get the foreign workers? A. Yes. Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 62 of 219 PageID #: 956 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 100 Q. Did you decide together that you wanted the foreign workers? A. Yes. Q. Who decided the number of workers that were going to be needed from May 2014 to February 2015? A. I'm not for sure. Q. Who decided the piece rates to offer to the workers in 2014? A. I'm not for sure about that either. Q. Okay. So, in this exhibit, there's two stapled sets. So if you'd go to the second stapled set. Okay. And do you see page no. P0492? A. Yes. Q. And can you look in box 9 there? A. (Witness complies.) Q. What does it say? A. From 7/15/2014 to 2/28/2015. Q. Okay. And then in box 10, it says -- what does it say? A. 22. Q. Are the number of workers you requested is 22 from -- is that what it says? A. Yes. MR. HOVIOUS: Object to the form. This is Tracy Dillard's request. Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 63 of 219 PageID #: 957 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 101 MS. RAMAKRISHNAN: Okay. MR. HOVIOUS: And Tracy Dillard's contract. MS. RAMAKRISHNAN: All right. MR. HOVIOUS: Misleading the witness. Q. Earlier, we talked about the eight workers that came in under the one that's marked P0472. They worked on your farm, right, the eight workers did? A. They worked on the farm, yes. Q. Okay. And did the 22 workers -- did you bring -- did 22 workers come in after July 2014, to work on your farm? A. They came in later. Yes. Q. Okay. Was it 22 workers? A. I'm not for sure now. Q. Okay. But they had H-2A visas? A. Yes. Q. The workers that came in had H-2A visas? A. Yes. Q. Okay. And who decided that you needed 24 -- 22 workers? A. Tracy, Bruce. Q. What about you? Did you, also, help decide how many would be needed? A. Not really, no. They discussed that. Q. Okay. In 2012, we talked about how the workers Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 64 of 219 PageID #: 958 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 102 got 45 cents per stick for cutting and loading. Do you remember talking about that? MR. HOVIOUS: Object to the form. Asked and answered. A. Yes. Q. Okay. In 2014, it looks like the workers were paid 18 cents for cutting and 22 cents for load, haul, and house. If you look here at the bottom of page 0492 or 0472. Did they get paid different rates for cutting and a dif- -- 18 cents per stick for cutting in 2014, and then 22 cents per stick for load, haul, and house? A. We -- they got paid the same, didn't they? I don't know. MR. HOVIOUS: If you don't know, you can say I don't know. A. I don't know. I just don't know. Q. You don't know why the rate might have changed between 2012 -- the way that you paid for cutting and loading changed? A. No, I don't know. Q. Okay. (Document marked Exhibit I to this deposition.) Q. Okay. I'm handing you what's been marked Exhibit I. Go ahead and flip through it. You can go Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 65 of 219 PageID #: 959 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 103 ahead and flip through it and see what it is. And just let me know when you're ready. A. Okay. MR. HOVIOUS: Did you go all the way to the end? THE WITNESS: (Witness shakes head.) MR. HOVIOUS: Thumb through it. And see your name's at the end. Q. Have you seen this document before? A. Yes. Q. Okay. This is an answer to a set of interrogatories or questions that we had submitted to you through your attorney. Can you go to the page -- page 7? Okay. And look at the top, Interrogatory No. 7. Okay. It says, in the answer, "Defendant" -- that's you, because these were interrogatories directed to you -- "states that Plaintiffs worked in tobacco fields owned and managed by Defendants in Monroe, Allen, Hart, and Boone counties in Kentucky, and Macon County, in Tennessee." Did the Defendants -- is that a true statement, that Defendants -- that the Plaintiffs -- that is, the H-2A workers who filed the lawsuit -- worked in tobacco fields that are owned and managed by you and the other Defendants in Monroe, Allen, Hart, and Boone counties in Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 66 of 219 PageID #: 960 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 104 Kentucky, and Macon County in Tennessee. A. Boone County is -- Q. Is not correct? A. -- not correct. Q. Is the rest of it correct? A. Uh-huh. Q. Okay. So the Plaintiffs worked for you on -- on fields that are owned and managed by you; is that correct? MR. HOVIOUS: Could you run that by me again, please? (Court reporter reads aloud.) A. It would be yes. Q. Okay. MR. HOVIOUS: For the record, Boone County should be Barren County. THE WITNESS: Barren County. Q. Barren, okay. So, in Monroe County, did the Plaintiffs work on land you owned? A. Yes. MR. HOVIOUS: Objection. Asked and answered. Q. Okay. Well, it says owned and managed. But did the Plaintiffs work on land you did not own? MR. HOVIOUS: We've gone through all of this. Objection. Asked and answered. Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 67 of 219 PageID #: 961 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 106 own some of it and Tracy owns a different part of it? A. (No response.) MR. HOVIOUS: Object to the form. A. I -- I don't know. Q. Okay. In Monroe County -- did you lease land in Monroe County that Plaintiffs worked on? A. No. Q. Okay. And do you recall when Plaintiffs were working on land in Monroe County, who owned that land? Was it you? A. We owned the land in Monroe County. Q. Who is we? A. Bruce, Tracy, and I. Q. Okay. Do you own land with Tracy? A. (No response.) MR. HOVIOUS: Objection. It's contained in public records that have already come in. It came in as Exhibit A. MS. RAMAKRISHNAN: Okay. MR. HOVIOUS: Waste of time. Choosing to run up expenses for the Dillards. Q. The land that we discussed in Exhibit A -- I don't know if you want to take a look at Exhibit A. MR. HOVIOUS: Here's mine. A. That belongs to Bruce and I. Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 68 of 219 PageID #: 962 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 107 Q. Okay. Did you farm tobacco in 2014 on that land -- on the land in... (Tracy Dillard exits conference room.) A. Yes. Q. Okay. Did the Plaintiffs work in the tobacco fields on that farm in -- A. Yes. Q. Okay. Okay. And then if you flip to page -- let's go to -- here we go -- 2349, P2349. It says 114 acres. A. I'm not sure. I mean, I can't remember. Q. Okay. You don't remember whether there was tobacco on that farm in 2014? A. That's correct. Q. Okay. Let's go to here. If we go to the 2353, this one is Tyler Dillard, 47 acres. Do you think you had tobacco growing on Tyler Dillard's farm in 2014? A. I'm not sure. Q. Okay. Who would remember? A. Who would remember? Bruce or Tracy. Q. Do you have some sort of record of where the fields were planted in 2014? MR. HOVIOUS: You've got all their records. A. Yeah. Q. You do have a record. Do you know if you've Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 69 of 219 PageID #: 963 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 108 provided it in discovery? A. I mean, I have it -- I have it down that -- where we had sent it in. Q. Okay. (Brief interruption.) MR. HOVIOUS: Sorry. Q. If you look at Hart County. This is 2358. A. No. There wasn't no tobacco on that farm. Q. Okay. And then -- oh, this was purchased late in the year -- A. Yeah. Uh-huh. Q. -- in 2014, correct? Okay. Okay. And then Barren County -- so you don't own land in Barren County? A. No. Q. Okay. A. Uh-uh. Q. Okay. So you had leased land in Barren County in 2014? A. Yes. Q. And the Plaintiffs worked on the leased land in Barren County? A. Yes. Q. Okay. Now, in the same document, I want to go to page 5. MS. BERBERICH: Of what exhibit? Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 70 of 219 PageID #: 964 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 111 Mexico? A. I don't know. Q. Okay. Do you know who paid for the cost of transportation from the Consulate in Mexico to your farm? A. No. I don't know. Q. Do you know if they were paid by anybody? A. I don't know. Q. Okay. (Brief discussion off record.) Q. All right. In 2014, where did the workers live, the Plaintiffs, when they were on your farm? A. We have two bunkhouses for them. Q. And where are the bunkhouses located? A. One's on 60 -- one's on the Akersville Road and one's on the County Line Road. Q. Okay. But it's all in -- A. It's in Monroe County. Q. Monroe County. A. Yeah. It's on the farm. Q. Okay. And how did they get to the fields? A. They were transported. Q. And who transported them? A. We did, and then Pablo. Q. Okay. Who is we? A. I took them some. Bruce took them some. Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 71 of 219 PageID #: 965 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 112 (Tracy Dillard reenters conference room.) Q. And when you took them, what was the vehicle? A. We had vans. MR. HOVIOUS: Objection. Q. How many workers could sit in a van? A. I think about 15. I'm not for sure. Q. Okay. And who made the arrangements to have vans for the workers? A. We did. Q. Who is we? A. Bruce, and I, Tracy. Q. Did you purchase the vans? A. Yes. Q. Okay. Did Pablo Rico purchase a van? A. (No response.) Q. I'm sorry. You mentioned Pablo earlier. Who is Pablo? A. He was the one that helped us. Q. Okay. And he transported workers? A. Uh-huh. Q. Did he transport workers? A. Yes. Q. Okay. Who provided the van for him to transport workers? A. We did. Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 72 of 219 PageID #: 966 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 116 A. I'm not for sure. Q. Okay. How did they have lunch? A. They took lunch off. And they -- a lot of times they'd go get their lunch at a little local grocery, or they would take their lunch with them and build a little fire and heat it. Q. Okay. All right. So can you -- when they were cutting, who showed them what to do? A. Well, we've all -- I showed them what to do. Q. Okay. Anyone else? A. Pablo showed them what to do. And if Michael was there with them, he would show them what to do. Q. Who decided -- or was there a set break time for lunch? A. I'm not for sure if they -- what time of day they would quit for lunch. But, yes, they quit for sometimes -- it would be more than an hour, when they would quit for lunch. Q. Would somebody tell them, "Okay. Lunch is over. Time to go back to work?" A. Yes. Q. Who would tell them? A. Usually Pablo. Q. But the lunchtime varied? A. Yes. Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 73 of 219 PageID #: 967 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 118 Q. -- when they were cutting. A. Yeah. But I didn't go every day. Q. All right. On the days that you went, how long did they work? A. Usually eight, nine hours. Q. Okay. And after they were done cutting, when did they load? MR. HOVIOUS: Load what? MS. RAMAKRISHNAN: The sticks onto the trailers. A. Oh, after they cut it? Q. Uh-huh. A. You have to let it sit in the field for three or four days to cure down. Q. Okay. A. And then you go back and start hauling in. Q. So they would do three days of cutting; is that correct? A. Well, it just -- it just depend. Q. Would they sometimes cut and then load on the same days? A. No. Q. Okay. So could you describe a day of loading? What time would they start if they were loading? MR. HOVIOUS: We've already talked about Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 74 of 219 PageID #: 968 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 120 A. It just -- I mean, they would -- they would finish before dark. Q. Okay. And who decided when the work was done for -- on the days they were loading and unloading? A. They would just load what they thought they could unload. Q. Okay. Who decided what fields to go load and unload? A. You -- you had to cut it, and then let it cure down, and then you'd go and start loading and hauling it in. You just -- you had to -- it was steps you had to do it by. Q. So who decided it was time to go load, that the sticks had been there long enough? A. Bruce and Tracy. Q. Were you part of that decision at all? A. Well, if they needed me, I would go. Q. Can you describe an average day during the stripping? What did they do and when did they start? A. Well, it was usually probably 7:00. The stripping? You have to -- it has to rain for the tobacco to come in season and be moist where you can take it down. You just can't go out and take it down anytime you get ready. Q. Okay. Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 75 of 219 PageID #: 969 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 121 A. And so, what they would do, they would take down a barn usually, if it was in season -- is what we call it. They would book it down. All of them would book it down. And then they would cover it in plastic. Q. Okay. A. And then, the next day, they would go and they would pull it out, get their sticks out. They'd just get out so many at a time because it dries out. Q. Okay. Who decided it was ready to book them down? A. Well, we do. But you have to wait until the stems is -- I mean, it has to be cured. The stems have to be cured. Q. Who figured out that the stems were cured? A. You can tell by looking. Q. And who was the one that looked? A. Tracy. Q. Tracy. Did you ever do that? A. No. I wouldn't -- no. Q. Does Bruce do that? A. Yes. Q. In 2014, when the Plaintiffs were there, did Bruce help say, this barn is ready to come down or the tobacco is ready to come down? A. Yes. Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 76 of 219 PageID #: 970 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 124 A. Yes. Q. Okay. And so, was it several years before that? A. No. Q. Okay. Was Pablo Rico a supervisor of the workers in 2014, of the Plaintiffs? A. Yes. Q. And who decided he should be a supervisor? A. Tracy, Bruce, and I did. I mean, he spoke Spanish. We don't speak Spanish. Q. Okay. And he speaks English? A. Uh-huh. Yeah. Q. So -- and did he -- as a supervisor, did he report to you or to -- who did he report to? A. Well, he'd just bring his paperwork in every night for us, every afternoon. Q. Would he talk to you about workers, like, if they weren't good or if things were going okay? A. No, not really. Q. Was he allowed to hire workers? A. No. Q. Could he fire workers? A. I don't -- I don't know. Q. Okay. Were workers -- or any of the Plaintiffs, ever disciplined? Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 77 of 219 PageID #: 971 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 139 A. No. Q. Okay. So when you say we got their hours recorded, where did that information come from? A. From Pablo. Q. Okay. If we go back to Exhibit I. Okay? A. Okay. Q. And flip to -- oh, before I get to this -- sorry -- was there any electronic system for, like, timecard system or clocking in and clocking out? A. No. Q. Okay. So whoever was recording, just looked at their watch -- A. And wrote. Q. -- and wrote down the times? A. Uh-huh. Q. Okay. If you flip to page 9, please, of Exhibit I, and look at Interrogatory No. 14. Go ahead and read that through. A. (Witness nods head.) Q. Okay? And it says, "Defendant states that, with Plaintiffs' input, Pablo Rico Murillo prepared the field tallies, and Carolyn Dillard was responsible for all payroll processes." Do you see that? A. Yes. Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 78 of 219 PageID #: 972 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 140 Q. Is that correct, what happened in 2014? A. Yes. MR. HOVIOUS: Objection. Asked and answered. Q. What do you mean by Carolyn Dillard was responsible for all payroll processes? MR. HOVIOUS: Objection. Form. A. Well, I tallied -- when he brought in each day's, I tallied it. And then I -- if they was getting paid by the hour, I done the hours. And if it was by the sticks, I paid them, you know, done their -- by the sticks. And then that was their -- you know, put it on their forms, and then wrote their checks for that week. Q. So you did, like, the math? A. Yeah. Q. Okay. MR. HOVIOUS: Objection. Asked and answered. Q. And what did you -- you mentioned putting something on forms? What forms? A. They're -- what is it? -- they're individual, that we had to keep their -- what they done each week. Q. Okay. So you reported that information on those forms? A. Uh-huh. Q. Okay. And what information did you put in the forms? Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 79 of 219 PageID #: 973 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 141 A. Well, if they was cutting, it was put in there. If they was topping, setting -- it was just -- and I think it was A, B, or C. It was -- whatever they was doing, it was in the form, as we -- each week -- I mean, each day, what they done, it was... Q. Okay. And did anyone else do that math besides you? A. No. Q. No? A. (Witness shakes head.) Q. Did anyone fill out those forms besides you? A. No. Q. Okay. And how did you know what rates to pay the workers? A. Well, we went by their contract. Q. Okay. All right. Did you record both the hours and the pieces on the forms that you're talking about? A. I don't know. I'd have to go back and look. Q. Okay. That's fine. It says Tracy Dillard signed payroll checks in addition to you. Did Tracy Dillard do any of the math? A. No. MR. HOVIOUS: Object to form. MS. RAMAKRISHNAN: All right. I have something Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 80 of 219 PageID #: 974 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 159 A. Yes. Q. Okay. So this record doesn't correlate with the number of hours that they worked? A. Uh-uh. Q. No? Okay. And you don't know how many hours -- there's no records showing how many hours they worked to get these sticks? A. (No response.) Q. Are there any records showing how many hours they worked to get these sticks? A. I don't know. I don't think so. I don't know. MR. HOVIOUS: If you don't know, just say it. MS. RAMAKRISHNAN: Do you mind if we take a break, just a real short break? (Brief recess was taken.) (Bruce Dillard not in conference room.) Q. Okay. We're back on the record. Do you mind if we do a little math using the calculator, Mrs. Dillard? I'm going to hand you a calculator. And I'm going to ask you to look at Dillard000128. It's the Exhibit M. Do you see? A. Uh-huh. Q. Okay. And, now, we, before the break, talked about how 437 was the rate based on the number of pieces Ageo did. Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 81 of 219 PageID #: 975 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 160 MR. HOVIOUS: Object to the form. And asked and answered. Q. Okay. Could you please divide 437 by $10.10? A. I'm used to a big calculator. Q. Okay. What's the total that you got? A. 43.26. Q. 43.26? A. Uh-huh. Q. And if you rounded it? A. 43.27. Q. All righty. And if you look here on this sheet, it says, "Total hours worked in week," it says, "43.27." If we look on sheet -- Exhibit M -- A. Yeah. Q. -- Dillard000128 -- A. Uh-huh. Q. -- under where it says total hours worked in week. A. 43.27. Q. Okay. So the pay divided by $10.10 per hour is 43.27 hours. Is that a coincidence that their sticks times the piece rate is the same as the hours times the hourly rate? MR. HOVIOUS: Object to the form. A. I'm not for sure. Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 82 of 219 PageID #: 976 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 166 Q. How many hours is that? A. Hang on a minute. I've got to figure it in my head. Q. That's fine. Take your time. A. That would be nine hours. And then -- Q. Okay. A. -- then they took an hour off for lunch. It would be eight, right? Q. Okay. Did somebody record how long the lunch was? A. I -- I think so. I mean, Pablo is the one that was keeping up with things. Q. Okay. At one point in time, you mentioned that, when they were cutting and working on a piece rate, you kept track of pieces -- A. Uh-huh. Q. -- and you didn't keep track of hours. MR. HOVIOUS: Objection. Asked and answered. She has not asked you a question now. Q. Was something different in 2014 when the Plaintiffs worked than when -- we had discussed earlier, you said, when they were working on piece rates, you kept track of pieces and not hours. Okay. Was something different about 2014 than in other years in your farming operation? Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 83 of 219 PageID #: 977 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 167 MR. HOVIOUS: Object to the form. A. No. Q. Okay. So was Pablo Rico keeping track of these hours while they were working on a piece rate? A. He was supposed to be. Q. But you don't know? A. I don't know. Q. And you don't have any records showing them -- A. Uh-uh. Q. -- the hours for this work? A. (Witness shakes head.) Q. Do you? A. No. Q. No, you don't. Okay. (Brief discussion off record.) (Document marked Exhibit N to this deposition.) MS. RAMAKRISHNAN: All right. This is also a composite of different documents. MR. HOVIOUS: Okay. Q. Before I ask a question about this, was Bruce helping you prepare wage statements? MR. HOVIOUS: Bruce Dillard? Q. Bruce Dillard. A. No. Q. Okay. Did Tracy Dillard help you prepare wage Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 84 of 219 PageID #: 978 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 168 statements? A. No. Q. Okay. So it was just you and the records that you got from Pablo Rico? A. Yes. Q. All right. And what -- who decided that you were going to be the one to do all this? A. I was the one -- MR. HOVIOUS: Do all what? Q. To do the pay records. Who decided that you would be the one to do the pay records? A. I was the one at the house. And they thought I had more time to figure their hours -- or their sticks and things. Q. Do you consider this payroll function to be one of your, like, responsibilities on the farm? A. Yes. Q. Okay. And it was in 2014 when the Plaintiffs were there? A. Yes. Q. Okay. So, now, we're looking at Exhibit N, which is -- on the bottom, do you see Dillard004219? A. Yes. Q. Whose handwriting is this? Do you recognize the handwriting on this? Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 85 of 219 PageID #: 979 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 171 anyway. We go to Dillard00185. A. Yes. Q. And can you look in the memo line of this page? What does it say? A. Cutting. Q. And then? A. 1,831 sticks times 25 cents. Q. Okay. Did the rate for cutting change at some point? A. No. It was 45 cents. They wanted 25 to cut. They wanted 20 to house. Q. Okay. So you -- so, in the past, they just did all of the functions, and you just counted it as 45 cents? A. Uh-huh. Q. When you say they wanted, who do you mean they wanted? A. The migrant workers. Q. The migrant workers asked for that? A. They was paid 45 cents. They wanted 25 to cut and then 20 to house. Q. Okay. Do you know why the rate was -- okay. So this check that -- it looks like that was signed by Tyson Dillard -- this is just for the cutting? A. That's just for cutting. Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 86 of 219 PageID #: 980 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 173 sticks, then that means, if we look at Ageo on this same page 4220, on the same page, 4220 -- A. Okay. Q. Look at Ageo. A. Yeah. Q. -- his -- his 20 cent rate for housing would be $366.20? A. Uh-huh. Q. Okay. What is this number here at the bottom? A. Okay. This was the total of sticks times 20. This was -- this was the money that the -- 11 people housed this much. And they made $420.41 a piece. Q. So rather than paying them their individual rate -- A. Uh-huh. Q. -- did you pay them $420.41? A. Uh-huh. If you'll look. Q. Okay. So if we look at the next page, Dillard000186 -- A. Uh-huh. Q. -- the check for Ageo for 420. A. Uh-huh. Q. So everybody got 420. A. Yes. Q. Regardless of the number of individual sticks Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 87 of 219 PageID #: 981 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 174 that they did; is that correct? A. They got paid -- yes. They got paid individually for cutting -- Q. Uh-huh. A. -- 25 cents. And then, see, some of them wasn't as fast as the others. If you'll look and see, some of them cut 500. Well, one person can't house tobacco by himself. Q. Okay. So would they do it as a group and have to divide it? A. Have to do it as a group and have to divide it up. MR. HOVIOUS: Would you like to see -- you've seen a tobacco barn, haven't you? MS. RAMAKRISHNAN: Just on youtube. MR. HOVIOUS: Huh? MS. RAMAKRISHNAN: Just on youtube. MR. HOVIOUS: I have a tobacco barn on a farm that's 40 minutes away -- MS. RAMAKRISHNAN: Uh-huh. MR. HOVIOUS: -- that you can look at it and understand that it takes a team -- MS. RAMAKRISHNAN: Uh-huh. MR. HOVIOUS: -- to hang tobacco. MS. RAMAKRISHNAN: Right. Yeah. And I'm just Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 88 of 219 PageID #: 982 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 178 Q. -- of 20 cents -- A. Yeah. Uh-huh. Q. -- per stick? Okay. Now -- and when we added those two numbers, we got 878.16. A. Yes. Q. Okay. Now, I want you to take a look at Dillard000142, Exhibit O. Exhibit O. You have it in your hand, I think. A. Uh-huh. Q. Okay. And show me the total gross pay. Tell me -- tell me the amount of the total gross pay shown on this wage statement. A. 878.16. Q. Okay. Is that the same number as the total of the two checks? A. Yes. Q. Okay. So you said the two checks are based on piece rates. A. Uh-huh. Q. Okay. Does this record show that they were paid just on a piece rate? A. Yeah. This was -- yeah. They was paid on piece rate. Q. Okay. If you look at total hours worked in week -- do you see what it says beside total hours worked Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 89 of 219 PageID #: 983 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 179 in week? A. 41.62. Q. Uh-huh. And then? A. Plus 1,831 sticks times 25 cents. See? Q. Okay. So was this wage statement saying that this was paid, 1,831 sticks, at 25 cents -- A. Uh-huh. Q. -- and then 41.62 -- A. Was -- Q. -- by hours? A. -- by hours. Where we -- the 420. MR. HOVIOUS: She did not -- THE WITNESS: Huh? MR. HOVIOUS: She did not finish her question. THE WITNESS: Okay. Sorry. Q. So, now, we don't -- my point is that, when we talked about the check for $420.41, is it correct that that is not paid by the hour, that check was not paid by the hour? MR. HOVIOUS: Object to the form. Argumentative. A. No. It's not paid by the hour. Q. Okay. Can you tell me why, then, this wage statement is showing that -- well, first of all, is this wage statement showing that he was paid by hour -- or in Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 90 of 219 PageID #: 984 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 180 part by hour? A. In part by hour, I'd say. Q. So is that correct, that the 4- -- you earlier said the 421.41 was not based on the hours. A. It's not based on the hours. Q. So why does this record show that he was paid in part by hours? A. Ray told us we needed to put both on there. Q. Okay. So where did the hours on this sheet come from? A. It was divided by the 442 -- the 420.41. Q. So you divided the hourly rate? A. Uh-huh. Q. So let's do that. Let's do 420.41. A. 41 -- Q. Uh-huh. A. -- divided by -- Q. 10. A. -- 10 equals -- Q. And what do you get? A. -- 41.6. Q. So this 41.6 is a result of dividing -- A. Uh-huh. Q. -- 420.41 by $10.10? A. (Witness nods head.) Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 91 of 219 PageID #: 985 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 188 evidence. A. I've forgotten how they -- I'm sorry -- I've forgotten how they've been sent. Q. Okay. Do you do anything on computers? A. No. Q. Everything is handwritten records? A. Yes. Q. What about Tracy Dillard? Does he work with records on the computer? A. No. Q. What about Bruce Dillard? A. No. Q. What about Tyson? A. No. Q. Okay. Nobody's doing anything on computers? A. Uh-uh. No. MS. RAMAKRISHNAN: Okay. All right. Last record here. (Document marked Exhibit Q to this deposition.) Q. So you mentioned that the workers -- the Plaintiffs, in 2014, were housed in some housing on your farm. A. Uh-huh. MR. HOVIOUS: Object to the form. Q. Okay. How many houses were they in? Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 92 of 219 PageID #: 986 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 189 A. We have two. Q. Two. Okay. And, now, the exhibit that's been marked as Q, can you look through the documents in this, please? A. Okay. Q. Okay. Have you -- have you ever seen this paper? Does it -- A. Yes. Q. -- look familiar to you? Okay. And do you see where it says, "employer's signature?" Can you read what it says? I know it's kind of fuzzy. A. Yes. It's -- it's Tracy. But it's my signature. Q. Okay. So you signed this? A. Uh-huh. Q. Do you recall meeting with the inspector? A. John Riley? Q. Uh-huh. A. Yes, ma'am. Q. Did you go out with him to look at the housing? A. Uh-huh. Q. And this housing says that it has a capacity of 22; is that correct? This is the housing at 218 County Line Road. A. Yes. Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 93 of 219 PageID #: 987 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 190 Q. Okay. How are you able to get 22 people in that housing? A. It's two different -- I mean, it's just one large building, but it's two compart- -- two apartments. Q. Two apartments. A. Uh-huh. Q. And so, there's about 11 workers per room? A. 11. Well, there could be 12. Yes. Q. Okay. So did Mr. Riley contact you about inspecting the housing? A. He called. And he was there. And I went and met him. Q. You went and met him. Okay. Was anybody with you when that housing inspection was going on? A. Uh-uh. Q. And before he called -- he called to say he was coming on the same day that he inspected the housing; is that correct? A. Yeah. He came that day. Yes. Q. Okay. Prior to having this housing inspected, did you do anything to get ready for the inspection? A. We have to clean them. Q. Okay. You have to clean them. Did you have to buy anything? A. Yeah. We had to replace stoves and Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 94 of 219 PageID #: 988 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 191 refrigerators. Q. Okay. Who did that? A. Well, I usually go and pick up the appliances for them. And then Bruce and them, they hauled the old ones out. Q. Okay. And what about mattresses? A. Yes. We -- we bought several new mattresses. Q. Okay. Do you know how many you bought? A. Woo. I'm not for sure. Q. And in 2014, were there beds -- bed frames or bunkbeds? A. Yes. Q. And did every -- how many bunkbeds were in the housing? A. There was seven bunkbeds -- I mean, 14 people could have slept in each unit. Q. Okay. So, actually, you think 28 people could have slept in that one unit? A. Well, I mean, we had that many bunkbeds in there. Q. Okay. A. There were seven in each. Q. Seven bunkbeds in each. A. Uh-huh. Q. Who paid for the mattresses? Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 95 of 219 PageID #: 989 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 192 A. We did. Q. Who is we? A. Tracy, Bruce, and I. Q. Okay. And this was is the housing that the Plaintiffs lived in? A. Yes. MR. HOVIOUS: Objection. Asked and answered. Q. Okay. This housing that was inspected in -- it looks like it was inspected on April 2nd, 2014. A. (Witness nods head.) Q. Does that sound about right? A. (Witness nods head.) Q. Was this the housing inspected where the Plaintiffs were going to live? A. Yes. Q. Okay. Now, if we look to the next page, did Mr. Riley come back out to inspect more housing? A. Yes. Q. Okay. And this says -- this P0310, the document marked P- -- it says that it's dated June 18th, 2014. A. Yes. Q. Okay. Is this an inspection of a different house than the other one? A. No. It's the same one. Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 96 of 219 PageID #: 990 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 210 2014, and then we didn't -- he went to somewhere else, and he never did come back. Q. Okay. Were you planning to do tobacco for the 2015 season? A. We did do tobacco 2015 season. Q. Okay. And -- but you just didn't do it for the 2016 season -- A. No. Q. -- is that right? A. Uh-uh. Q. And then, in 2015, where did you find workers? A. Local. Q. Local. Do you recall asking Pablo Rico to come back to work in that 2015 season? A. He left -- when he left, he had a job somewhere else. Q. Okay. Okay. For -- in 2014, when the Plaintiffs worked on your farm, who had the authority to fire workers? A. Bruce, and Tracy, and Pablo had the authority. Q. Okay. Who had the authority to hire workers in 2014? A. Bruce and Tracy. Q. Okay. Did you have the authority to hire workers? Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 97 of 219 PageID #: 991 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 211 A. I probably did, but I didn't. Q. If somebody showed up to the farm one day and said, "I'm looking for work," could you say, "Well, you're hired?" A. No. I wouldn't do that. Q. What would you do? A. I'd just tell them they'd have to come back and talk to Bruce or Tracy, if we were needing help. Q. What if -- what about if somebody was, like -- like, one of the workers was not behaving properly, would you have the authority to fire them? MR. HOVIOUS: I think we've been over this pretty thoroughly already today. Can we not do it again? MS. RAMAKRISHNAN: I don't think that -- MR. HOVIOUS: You've asked her all this stuff. MS. RAMAKRISHNAN: I don't think I asked her about the 2014 year. Q. This is hypothetical: If somebody was messing around, misbehaving as a worker, would you have the authority to fire them? MR. HOVIOUS: Objection. Calls for speculation. Waste of time. Asked and answered. A. I couldn't, no, not without talking. Q. Who would you talk to? A. Bruce or Tracy. Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 98 of 219 PageID #: 992 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 212 Q. Could you recommend that somebody be fired -- MR. HOVIOUS: Objection. Q. -- to Bruce or Tracy? MR. HOVIOUS: Objection. Calls for speculation. Waste of time. A. Yes. Q. Okay. Do you remember the name Martin, Mar-teen or Mar-tin Rico? A. Yes. Q. Do you know who Martin Rico is? A. He's Pablo's brother. Q. Okay. Did Martin Rico ever drive workers in 2014? A. Did he ever drive workers? I -- I'm not for sure. Q. Okay. Do you know who found the drivers for the workers, who picked the people to drive for the workers, in 2014? MR. HOVIOUS: Objection. Waste of time. A. No. I don't remember. MS. RAMAKRISHNAN: Okay. Okay. I pass the witness. MR. HOVIOUS: No questions. Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 99 of 219 PageID #: 993 213 STATE OF KENTUCKY ) ) ) SS ) COUNTY OF WARREN ) I, Felicia B. Thomas, a Notary Public within and for the State at Large, do hereby certify that the foregoing deposition of CAROLYN DILLARD was taken before me at the time and place and for the purpose in the caption stated; that the witness was first duly sworn to tell the truth, the whole truth and nothing but the truth; that the deposition was reduced to shorthand writing by me in the presence of the witness; that the foregoing is a full, true and complete transcript of said deposition so given to the best of my ability; that there was no request the witness read and sign the deposition; that the appearances were as stated in the caption. I further certify that I am neither of counsel, nor of kin to either of the parties to this action, and am in no way interested in the outcome of said action. _____________________________ Felicia B. Thomas, CCR-KY Notary Public Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 100 of 219 PageID #: 994 1 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF KENTUCKY BOWLING GREEN DIVISION Civil Action No. 1:15-cv-69-GNS Judge Stivers Magistrate Judge Brennenstuhl MARTIN RICO MURILLO, ET AL., PLAINTIFFS VS. TRACY DILLARD, BRUCE DILLARD, AND CAROLYN DILLARD, DEFENDANTS -------------------------------------------------------- VIDEOTAPED DEPOSITION OF TRACY DILLARD September 12, 2016 3:30 p.m. Kerrick Bachert, PSC 1025 State Street Bowling Green, Kentucky ------------------------------------------------------ FELICIA B. THOMAS, CCR Barton-Thomas Reporting Post Office Box 1406 Bowling Green, KY 42102 270.782.8814 Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 101 of 219 PageID #: 995 2 TRACY DILLARD INDEX EXAMINATION BY MS. RAMAKRISHNAN: 5 - 63 Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 102 of 219 PageID #: 996 3 The examination of TRACY DILLARD, taken at the Law Offices of Kerrick Bachert, PSC, 1025 State Street, Bowling Green, Warren County, Kentucky, on Monday, September 12, 2016, at 3:30 p.m., upon oral examination and to be used in accordance with the Kentucky Rules of Civil Procedure. APPEARANCES FOR THE PLAINTIFFS: Ms. Lakshmi Ramakrishnan TEXAS RIOGRANDE LEGAL AID, INC. Attorneys at Law 300 S. Texas Boulevard Weslaco, TX 78596 Ms. Caitlin Berberich SOUTHERN MIGRANT LEGAL SERVICES A Project of Texas RioGrande Legal Aid, Inc. 311 Plus Park Boulevard Suite 135 Nashville, TN 37217 FOR THE DEFENDANTS: Mr. Gregg Hovious MIDDLETON REUTLINGER Attorneys at Law 401 South Fourth Street Suite 2600 Louisville, KY 40202 ALSO PRESENT: Ms. Carolyn Dillard Mr. Bruce Dillard Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 103 of 219 PageID #: 997 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4 THE FOLLOWING PROCEEDINGS WERE HELD: MS. BERBERICH: We're going on the record. My name is Caitlin Berberich. I'm with Southern Migrant Legal Services, 311 Plus Park Boulevard, Suite 135, Nashville, Tennessee, 37217. Today's date is September 12th, 2016. The current time is 3:30 p.m. We're at the law offices of Kerrick & Bachert, at 1025 State Street in Bowling Green, Kentucky. The Deponent's name is Tracy Dillard. You want to go ahead and -- TRACY DILLARD, being first duly sworn, was examined and testified as follows: MS. BERBERICH: After we've identified all the rest of the people who are present today, myself, Caitlin Berberich, attorney for the Plaintiffs, also, Lakshmi Ramakrishnan, attorney for the Plaintiffs. Sorry. MR. HOVIOUS: Gregg Hovious represents Tracy Dillard, Carolyn Dillard, and Bruce Dillard. MS. BERBERICH: Also, with whom are present, as well as the court reporter -- THE COURT REPORTER: Felicia Thomas. MS. BERBERICH: -- Felicia Thomas. Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 104 of 219 PageID #: 998 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 5 EXAMINATION BY MS. RAMAKRISHNAN: Q. Good afternoon, Mr. Dillard. Can you please state your full name for the record? A. Tracy Edward Dillard. Q. Okay. Can you spell your first name, please? A. T-r-a-c-y. Q. Okay. Have you ever been deposed before? A. No, ma'am. Q. Okay. So I'm going to give you a little bit of rules. You probably heard some when we were talking to your mother before. MR. HOVIOUS: He's been prepared. MS. RAMAKRISHNAN: Great. Q. If you ever -- if you -- so you've been placed under oath. So there is an expectation that you'll answer the questions truthfully. A. (Witness nods head.) Q. If you don't understand a question, please say so. A. Okay. Q. If you answer a question, I will conclude that you understood it. Is that fair? A. Yes. Q. Please answer verbally and out loud. Okay? Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 105 of 219 PageID #: 999 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 9 Q. Okay. Did you get a -- did you graduate high school? A. No. Q. And you didn't go to college? A. No. Q. Okay. Does your farm have a name? A. Yes. Q. What is the name of your farm? A. Tra-Ken Farms. Q. Okay. And how long have you owned Tra-Ken Farms? A. Well, Tra-Ken Farms is just a name. It's not an entity or anything. It's just a name that we call the farm. We're all individual farmers. Q. Okay. Who is we? A. Myself and my parents. Q. Okay. Who are your parents? A. Bruce and Carolyn. MR. HOVIOUS: Please. Q. So do you own a farm with your parents? A. I do. Q. And you go by Tra-Ken Farms? A. Yes. Q. All right. And how long have you and your parents owned Tra-Ken Farms? Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 106 of 219 PageID #: 1000 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 10 A. Probably six, seven years ago is the first land that we owned together. Up until then, it was just farms that they owned. Q. So, prior to six years ago, did you just work on their farms? A. Yes. Q. You didn't have a farm of your own? A. No. Q. Okay. So did you start calling it Tra-Ken Farms about six years ago? A. No. They did that years ago, when me and my sister were young. Q. So does Tra-Ken stand for Tracy and Kendra? A. Yes. Q. Where is your farm located? A. At Fountain Run, Kentucky. Q. Okay. And do you have, like, a business address for the farm? A. We use my parents' address. Q. What is that address? A. 8110 Akersville Road, Fountain Run. Q. Okay. What kind of crops do you grow on your farm? A. Corn, soybeans, wheat. Q. Okay. I'm going to ask you questions about Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 107 of 219 PageID #: 1001 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 12 Q. Okay. So is there any land that you own that you farm on? A. Yes. Q. Okay. Where is that land? A. In Hart County. Q. In 2014, was there any land that you owned that you farmed on? A. Yes. Q. Okay. Where was that located? A. Hart County. Q. And do you own that land with somebody else? A. With my parents. Q. Okay. Did the Plaintiffs, in 2014, work on the land that you owned with your parents? A. I think we had corn on it that year. I'm not for certain. Q. Okay. A. But I think it was in crops that year. Q. Did the Plaintiffs work on land that your parents owned, but you did not own -- A. Yes. Q. -- in 2014? Okay. Did you lease the land from your parents? A. Yes. Well, sort of, I guess. Yeah. Q. And what do you mean by sort of? Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 108 of 219 PageID #: 1002 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 13 A. Well, we just all work together. And so, if I needed 10 acres of ground that was theirs, I would use it. And if they needed 10 acres that was mine and theirs, they would use it. Q. So, really, it's just one big operation, isn't it? MR. HOVIOUS: Object to the form. A. Well, no. Not really. Not according to our taxes. Q. Okay. Do you own farmland in Tennessee? A. No. Q. Do you own farmland in Barren County, Kentucky? A. No. Q. Other than Hart -- A. That's all I own. Q. -- and Monroe -- okay. So, in 2014, did you have leases for tobacco? A. Yes. Q. And who arranged the leases for tobacco? A. I don't know. I -- I would talk to the landowners, or, you know, just me or my dad, one, would talk to the landowners and lease some land. Q. Okay. And how did you determine how much land you would have to grow tobacco on? A. According to how many pounds we had contracted. Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 109 of 219 PageID #: 1003 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 14 Q. Okay. Who arranged the contracts to determine the number of pounds for the tobacco? A. The tobacco companies tell you how much they will let you have. Q. Okay. Is there, like, a meeting or something that you have with somebody from the tobacco company? A. Yes. Q. Who attends the meeting? A. Any of us that has a contract. I mean, like, I have to go for my contracts. And my dad has to go for his contracts. Q. Okay. You have separate contracts for growing tobacco? A. Yes. Q. In 2014, were there separate contracts for how many pounds your dad had to grow and how many pounds you had to grow? A. Yes. Q. Okay. Do you work with your son, Tyson Dillard, in Tra-Ken Farms? A. Yes. Q. Does Tyson have an ownership interest in the farm? A. No. Q. How about Tyler Dillard? Does he have Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 110 of 219 PageID #: 1004 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 16 Q. Okay. Earlier you said you-all worked together on the farm. Is there -- do you have a way of dividing up management responsibility for the farming operations? A. Well, usually me and my dad just sit down and talk things over. And that's how it works. Q. Is that what happened in 2014, before the tobacco season, you sat down with your dad to talk things over? A. Yes. Q. Did you sit down with your mom also? A. Sometimes she's there. Q. Okay. Is there any area of the kind of management of the farm that you in particular take over? A. I was -- I pretty well took care of the tobacco. Q. Okay. And who was taking care of your other grain crops? A. My dad. Q. Do you keep track of the financial side of your farming? A. Usually my mom takes care of all the books. Q. And she takes care of your bills and Bruce's bills and, like -- A. Well, no. I pay my bills. I mean, but... Q. Who pays the farm's bills? Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 111 of 219 PageID #: 1005 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 19 Q. Okay. How many did you have? A. Right? 100 to 125. Now, I'm guessing. That's going to be a ball park figure. Q. Was that acreage you leased and owned? A. Yes. Q. Okay. And do you know how many acres your dad had? A. I don't remember. Q. And did your mom have any acres of tobacco? A. No. Q. Okay. So what would be a good year for revenues on the hundred or so acres you described? MR. HOVIOUS: Objection. Asked and answered. A. If you make 2,000 pounds an acre -- Q. Okay. A. -- and it's $2.00 a pound, that's $4,000 an acre gross. Q. Okay. Okay. And what about your other farming crops in 2014? Do you know how many acres of grains you had? A. I don't remember. Q. Do you purchase equipment for your farm? A. Yes. Q. In 2014, did you purchase equipment? A. Yes. Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 112 of 219 PageID #: 1006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 20 Q. What kind of equipment did you purchase? A. Just tractors, sprayers, combines. Q. Okay. Do you use that equipment -- can Bruce Dillard use your equipment? A. We buy the equipment together. You can go out here to John Deere, and it's in mine and my dad's name, if you'd like to. Q. Okay. Is all of the equipment purchased together? A. Yes. Q. Do you purchase seeds for your farming? A. Yes. Q. Okay. Do you purchase that with your father? A. We talk about the -- what seed we need, and we'll buy them together. I mean, yeah. Q. Okay. You have a joint account? A. Yes. Q. And the seed purchase would be made from your joint account? A. Yes. Q. Okay. And does your mother participate in the seed purchases? A. No. Q. In tobacco, you only purchase seed, correct? You don't purchase plants? Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 113 of 219 PageID #: 1007 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 21 A. That's correct. Q. Okay. Do you purchase fertilizers? A. Yes. Q. And is that also from your joint -- A. Yes. Q. -- account? So does Bruce purchase fertilizers for your farm? A. For his. I purchase it for mine. But we buy it -- we'll call them and tell them how much we want, where we can get a better deal buying so much, his and mine together. Q. So you buy fertilizer for all the farms together? A. (Witness nods head.) Q. Is that correct? A. Yes. Q. Okay. Do you arrange any leases for Bruce's tobacco? A. No. Q. Do you take operating loans? A. Yes. Q. Are those operating loans in your name? A. Not now. Q. In 2014, did you have an operating loan? A. Yes. Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 114 of 219 PageID #: 1008 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 22 Q. Was it in your name? A. Jointly, with my parents. Q. All right. In 2014, who decided when to plant the seeds? A. Of what crop? Q. Tobacco. 2014 tobacco. A. Oh. Q. We're trying to limit it to that. A. You just always start them in the greenhouses in late February, early March. Q. What determines whether it will be late February or early March? A. Depending on the weather. Q. Weather. So does somebody say we need to get everything ready by February 20th? A. Well, you just kind of look at -- well -- MR. HOVIOUS: Objection. Waste of time. A. Oh, you look at the weather forecast, and if it's going to be really cold and it costs lots of money in propane to heat those greenhouses, you wait a week. Q. Okay. A. But if it's really nice, you...you know. Q. Who makes the decision to -- A. My father and I. Q. You make it together? Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 115 of 219 PageID #: 1009 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 25 really has helped us for a while, that works in the fields with the grain. Q. Okay. And who hired Michael Boyd to work in the grain? A. I don't remember, now, who hired him. Q. Has he been working there for a long time? A. That's about the year he started, I guess. He's worked for about three years, I suppose, or... Q. Okay. So I have learned so much already about your industry. MR. HOVIOUS: Will you just ask the questions, please? Q. When you go to the greenhouse to start the seeding, do you go and do that? A. Sometimes. Q. Who else would go and do that? A. My mom, and my dad, my sons, and whoever's around to help, you know. Q. Okay. And do you seed your tobacco in the same place that your dad seeds his tobacco? A. We have six huge greenhouses. And we all -- I mean, my seeds and plants will be in one. Theirs in different ones. Q. Is it all the same kind of seeds -- MR. HOVIOUS: All the same kind of what? Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 116 of 219 PageID #: 1010 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Q. -- for the tobacco plants? A. It's all burley tobacco seed, but there are several different varieties. Q. Okay. Do you divide the varieties -- seed varieties between you? A. No. I may -- I may like a different variety than he likes. So I grow what I like, and he'd grow what he would like. Q. Okay. Okay. Who decides where to plant the seeds -- I mean, plant the tobacco? A. You plant the tobacco when the plants are ready. Q. All right. So, in 2014, who decided when the plants were ready to be -- A. Well, you just -- it's common knowledge, when they get about six inches tall, you need to be putting them in the field. Q. Okay. Does somebody go out and measure them, the plants, to see if they're ready? A. No. You can visually see that. You don't have to have a tape measure. Q. All right. So who goes out and visually sees if the plants are ready to be planted? A. Well, I will, or my dad, or -- I mean, when we -- there's rows around the greenhouses. So you can Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 117 of 219 PageID #: 1011 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 28 Q. Was that the case in 2014, when the Plaintiffs worked there? A. Yes. Q. Okay. How many workers are needed for planting tobacco? A. Eight. Q. Okay. And how -- in 2014, how did you decide how many workers were needed for the planting? A. Well, we have two planters, and it takes four person per planter, so. Q. Okay. Okay. In 2014, how did you secure workers for planting tobacco? A. The H-2A program. Q. All right. Okay. So who decided to use the H-2A program in 2014? A. Well, we used them, and I had gotten them in '13. So we got them again in '14 just because local help was hard to find. Q. Okay. And why did you decide to use the workers in -- H-2A workers in 2013? A. Because we had tobacco ruin in the field in '12 because there wasn't enough help around. Q. And how did you find out about the H-2A program? A. I went to a tobacco meeting, and other farmers Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 118 of 219 PageID #: 1012 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 29 were talking about it there at the meeting. Q. Okay. And let me backtrack a little bit. The eight workers that you needed to plant the tobacco, did they plant just your tobacco? A. Yes. Except for some, like that Mark Cherry that -- when they were working for us, but we were custom -- doing custom work for Mark. Like, we do custom combining, custom spraying. We do lots of work for other farmers. And he had got way behind planting and needed some planting done. So we went and took our tractor and planter and our workers, and -- Q. And when you say we, who do you mean? A. Me and my father. Q. Okay. So the workers that did the planting of your tobacco, did they do the planting of your father's tobacco? A. Yes. Q. Okay. So did your parents join in your decision to utilize the H-2A program? A. My dad did, yeah. Q. Is that a decision you made together? A. Yes. Q. All right. So how did you find -- you said you attended some meeting where they discussed the H-2A Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 119 of 219 PageID #: 1013 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 33 Q. Okay. And did you discuss with your dad how many workers were going to be needed? A. I probably did. I mean, I'm not sure. Q. Okay. Okay. Did you -- was there a reason why there were two clearance orders for 2014? A. Because we didn't need -- we only needed eight to start with. I mean, you're supposed to provide them 40 hours a week. So, you know, if we got all 30 upfront, or whatever it was, we wouldn't have had the work for them. Q. Okay. So who decided when the second clearance order would start? A. I did, because I knew, when we planted the tobacco, when it would be ready to harvest. And that's when we needed the rest, at harvest time. Q. Okay. Okay. Can you look through the stack of documents for Exhibit No. H? Do you mind looking through that stack? Look for Exhibit No. H. Exhibit H. A. Okay. Q. Okay. This exhibit has two separate stapled packets. Okay? A. Okay. Q. So can you look, first, at the page that's marked P0472? Do you see it? A. Okay. Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 120 of 219 PageID #: 1014 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 41 things. You have to let them have a little leeway and tell you -- they get to tell you a little bit more than you tell them, honestly. Q. During the planting, how were the workers paid? A. By the hour. Q. By the hour, okay. So would you go out with the workers when they were planting? A. Yes. I would drive the tractor most of the time. Q. Okay. And you mentioned having two of the setting machines. A. Uh-huh. Q. Who drove the other one? A. My dad might drive one, or my son, or... Q. And did you work in the same field -- did everyone work in the same field each day? A. Sometimes. Or we -- Q. Okay. And who decided? A. Or we'd be on same farm, anyway. I mean, it might be two fields adjoining. But we were -- we were close together. Yes. Q. All right. So who decided where to go and start work? A. I would or my dad would. MR. HOVIOUS: Are you talking about tobacco or Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 121 of 219 PageID #: 1015 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 43 Q. And did you always go out every day? A. Yes. I work every day. Q. Okay. Did your dad go out every day? A. Yes. Q. And do you recall, in that 2014 season, him going out -- A. Yes. Q. -- every day, during the planting? A. Yes. Q. Okay. Then when it was time for cutting -- oh, sorry. Let's try topping -- who decided when to start topping? A. When you see about 30 percent of the field in bloom, you start topping. Q. Okay. And how is topping paid? A. By the hour. Q. By the hour. And the topping was the same group of eight workers -- A. Yes. Q. -- that did topping? How long does the topping last? A. I don't know. Maybe four weeks, five weeks, six weeks. I'm not sure. Q. Okay. A. A little while. Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 122 of 219 PageID #: 1016 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 49 experience. Q. Okay. So after the second group of H-2A workers arrived, when did they start work? A. Very soon. I mean, either the next day or the next -- or couple of days. I mean, I'm not certain. But it was within a day or two. Q. Okay. So who decided when -- now, did -- did all of the workers who arrived start working on the same day? A. I'm not sure about that. Q. Okay. Do you remember if there were some workers who didn't get to work right away? A. Oh, they were all offered work. I mean, I think one actually left, like, the next day, never worked. I mean... CAROLYN DILLARD: I don't know either. Q. Okay. So who told them what time they needed to get started in the morning? A. Well, the other guys had already been working, the other eight. And they just got with them, and they all decided when they wanted to start. Q. Now, how was cutting paid? A. By the stick. Q. Okay. So, prior to cutting, the other tasks were paid by hour -- Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 123 of 219 PageID #: 1017 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 51 leave? A. Well, sometimes they'd want to leave early, like, 5:00 o'clock. Sometimes they didn't want to leave until 7:00. So just whenever -- whenever they told us to pick them up, we made sure we were there on time. Q. Okay. And who would drive them -- because this is more vans than with the -- when the planting was going on, right? You had more vans for transporting? A. We had three 15-passenger vans. We'd only use two of them. We just had one for extra in case something happened to one. So we had took -- had two 15-passenger vans, just like you see at the airport, or somewhere. Q. Okay. And who would -- who would drive those vans when they were doing cutting and working away? A. I have driven them. Pablo driv- -- drove on every day. And I've driven one. One of my sons had -- both of my sons have occasionally, or, like, Michael Boyd, he has before. My mom has. I mean, it just whoever... Q. Okay. And during the cutting, did you go out with the workers every day? A. No. Q. How often would you go? A. I would just check on them every couple of days. Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 124 of 219 PageID #: 1018 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 52 Q. Would Bruce go out with the workers -- A. No. Q. -- during the cutting? A. No. He's -- like me, he would drive by and check on them, see how they were doing. Q. Okay. Then after they cut the tobacco, what happened next? A. You house it. Q. Okay. Is there -- they also had to load the tobacco? A. Yes. Q. If they -- on a day where they were cutting -- you said the morning time varied -- but what about the ending time? Was there a set ending time for cutting? A. No. They would -- they made their own ending time also, you know. Q. Was the ending time dependent on how many acres they had to do? A. No. I mean, they -- they -- I mean, if they were in a 50-acre field and they wanted to quit at 2:00 o'clock, they'd quit at 2:00. If they wanted to quit at 7:00, they quit at 7:00. I mean... Q. So if they quit at 2:00 o'clock, would they have to come the next day and finish that field? A. Oh, it would take several days to do the field. Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 125 of 219 PageID #: 1019 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 53 Tobacco is a slow process. Q. Okay. So when the -- when the workers were all transported to the field back in Hart County, did they have the same stopping and -- starting and stopping times in the field? A. Well, they all went and started at the same time. But some of them would, like I said, quit at 2:00 o'clock and go lay under the shade tree until the other ones got ready to go home. I mean, they -- some of them were just harder workers than others. You know, some of them wanted to -- to work all they could. And other ones just wanted to work to survive, I guess. Q. Okay. But would -- but they were all transported back from -- A. At the same time, yeah. Q. -- at the same time, at the end of the day? A. Yes. Q. So what was the -- so how many hours on average would you say they worked just cutting? A. I have no idea, really, how many hours average. I mean... Q. Okay. So when would they load the sticks? A. Load the sticks of tobacco to take to the barn? Q. Yes. Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 126 of 219 PageID #: 1020 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 54 A. Sometimes they'd load in the afternoon. Sometimes they'd load in the mornings. It was up to them when they loaded. Q. But they didn't load -- they had to wait -- did they have to wait a few days before loading the cut tobacco? MR. HOVIOUS: Object to form. A. Yes. Tobacco sunburns. It takes three dews -- a dew at night, if you know what that is -- to pull the sunburn out of it. So it has to have three dews on in to get the sunburn back out. Q. Okay. So did somebody say to them, "We need to go back and load the tobacco?" A. Yes. Q. Who would decide that? A. I would, most of the time. Q. Okay. And when they loaded the tobacco, they loaded it onto -- what did they load it onto? A. Wagons. Q. And who operated the wagons? A. I've driven the tractor pulling the wagon through the field. My mom has. My dad has. My sons have. Other employees have. Q. Is the time very important to get it loaded on the third or fourth day? Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 127 of 219 PageID #: 1021 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 55 A. Well, you just don't want it to rain on it. Q. Okay. So when you say three days, is that a minimum of three days that you let it sit? A. Uh-huh. Q. Could you -- could you let it sit for a week? A. You don't want it to sit for a week. No. Q. Okay. So was it important to get the loading done by a particular time? A. Yeah. It needed to be done four or five days, for sure, after it was cut. Q. Okay. Would the workers sometimes cut and load on the same day? A. I don't know if the they ever did or not. I mean, they possibly could have, but, you know... Q. Would they cut and load the same sticks within one workweek? A. Well -- well, if they cut on Monday, Tuesday and Wednesday, then they would haul on Thursday, Friday, and Saturday. But you had rain, so it usually never worked that way. Q. Were there some weeks where they loaded some of the sticks for the following pay period? A. Yeah. Excuse me. Yes. Q. Okay. So how is the -- how is the cutting and loading paid for the 2014 H-2A workers? Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 128 of 219 PageID #: 1022 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 56 A. By the stick. Q. Okay. So were they paid a rate for one stick during the cutting? A. Yes. Q. What was that stick rate? A. I think it was 25 cents. It was more than -- more than in the contract. Q. Okay. And how did you determine -- or who determined the rate for cutting? A. Why we paid -- what are you asking? Why we paid them more than the contract? Q. Yes. A. Because the local town they went to there in Lafayette, Tennessee, they were seeing all the illegal migrant workers there, and they were getting 45 cents a stick. And they told us they was going to quit, and leave, and go to work for other farmers if we didn't pay them 45 cents a stick, even though they signed the contract for less money. Q. Do you recall paying 45 cents a stick for workers before you had H-2A workers? A. Yes. Q. Okay. So was -- so when you came back to 45 cents per stick, was that kind of the normal thing to pay Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 129 of 219 PageID #: 1023 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 57 people? MR. HOVIOUS: Object to the form of the question. A. Yes. But I did not have to house those other people. I did not have to furnish them transportation to and from work. I did not have to pay their travel expense from Mexico and back. You know, I didn't have 15 -- a thousand to $1,500 per man in those other people that I had in these. Q. All right. So was there a reason why you, in 2014, had one rate for the cutting of the stick and another rate for -- or, like, you took the 45 cents and split it into the two functions? Was there a reason for that? A. That's the way they always wanted to do it. Because, when they cut it and put it on the stick, that is individual work. Q. Uh-huh. A. No one helps them. When they put it in the barn, they all work as a group. Q. Okay. A. So they share in -- if you put in, just for instance, 10,000 sticks today, they all share in that 10,000 sticks because they all worked equally together on it. Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 130 of 219 PageID #: 1024 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 58 Q. Was that just something that you did for these workers in 2014 and in 2013? A. That's the way it's always been done, since I was a kid. Q. Okay. When you said they wanted to be paid what other workers were paid, who did you mean by they? A. The migrant workers, the H-2A workers. Q. Was there someone that spoke to you about it? A. Well, they would tell Pablo, and Pablo would come and tell me because I don't speak any Spanish. And he was the translator. And his brother spoke -- Martin would come. He spoke fairly good English. He would come, too. Q. So when they wanted the change in the pay rate, were you, like, with the workers in a group and he was translating for them? A. Yes. Q. Okay. Was that similar for when -- when they said they wanted to work a certain time in the morning, were you there with him, and Pablo was translating what they wanted? A. Sometimes. And then sometimes he would just tell me or call me on the cellphone and say, "They don't want to start until 8:00 in the morning," or, you know. So... Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 131 of 219 PageID #: 1025 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 59 Q. Okay. Would -- would Bruce be in a conversation with the workers with Pablo like that? A. Sometimes. He and I will be together. Yeah. Q. So around when did this decision to start paying them 25 cents for cutting happen? A. I can't remember exactly. I mean... Q. Was it after they had already done some work on the farm? A. Yes. Q. Okay. And who was present in the meeting? A. I just stopped by up there at the -- at the house. I pass it going from our shop over to my house. And I just stopped by to see how they were doing. And that's when they asked me about it. It was a bunch of them. I mean, I don't know exactly how many, but it was probably 20 of the guys, just guessing, out there. Q. Okay. And do you recall what was said during the meeting? A. I mean, Pablo and Martin just said that, since they had been going to town to the grocery store, they talked to the other people up there. And -- and that's all that I understood, that they were going to leave if -- leave our farm, and basically abandon us, and go somewhere else and work. Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 132 of 219 PageID #: 1026 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 60 Instead of going back to Mexico, like the contract said, they were going to just abandon us and take off and work for somebody else if we -- if we didn't give them a raise. Q. So did you go back and talk to Bruce and to your parents about whether or not you should change the rates? A. Yeah. I went back and talked to my dad. He was at his house. And, of course, you know, when you -- your livelihood is on the line, you know, you kind of have to do whatever to get the tobacco put in, so. Q. So you decided together to go ahead and change the rates? A. Yes. MR. HOVIOUS: Objection. Asked and answered. Q. Okay. Okay. Now, we're going to talk about the lowering of the tobacco. Who decided when to start lowering the tobacco from the barns? A. When it gets ready, you -- you start, so. Q. When it gets ready, it says come and get me; is that right? A. Not hardly. MR. HOVIOUS: I don't want -- I don't want to waste time, please. Q. Who decides when to start lowering the tobacco? Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 133 of 219 PageID #: 1027 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 61 A. Can I say something? MR. HOVIOUS: Can you say what? A. Can I say something? Would it not be easier for you just -- for me just to say, Bruce, my father and I, made almost all decisions together? And then we could get through this faster. I mean, 'cause that's -- you keep going over, and over, and over every little detail of the farm. And he and I make 90 percent of the decisions together, I mean. And that will speed this up, won't it? MR. HOVIOUS: It should. Q. Sure. Well, the big question: Was Bruce an employer of the workers that worked on that farm? A. Who paid them? MR. HOVIOUS: That's wasting time, too. THE WITNESS: Okay. All right. All right. Q. You know, that's the question. It doesn't have anything to do with whose name is on the check, according to the law. A. Uh-huh. Q. So who -- when the workers, the H-2A workers that came in the second group of workers -- A. Uh-huh. Q. -- did they cut some of Bruce's tobacco plants? A. Yes. Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 134 of 219 PageID #: 1028 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 62 Q. Okay. Did they load some of Bruce's tobacco plants? A. Yes. Q. Were your plants and his plants hung in different barns? A. Yes. Q. Okay. Were any hung in the same barn? A. Yes. Q. Who lowered -- did the H-2A workers lower Bruce's tobacco plants? A. Yes. Q. Okay. So who decided when it was time to lower the tobacco plants? MR. HOVIOUS: Objection. Asked and answered. MS. RAMAKRISHNAN: No. You didn't let him answer. You didn't let him answer. You want to go back and see? MR. HOVIOUS: He just told you that 90 percent of the decisions were made by he and his father. Q. Yeah. Okay. When you -- was that decision to lower the tobacco made by you and your father? A. Joint decision. Q. Okay. What was the factors that made you decide? A. When -- Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 135 of 219 PageID #: 1029 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 63 BRUCE DILLARD: I've got to go to take a break. (Bruce Dillard exits conference room.) A. When it's ready, you do it. I mean, because they quit buying tobacco the middle of February. So when it's ready, you do it or you get to carry that crop over to the next year. And that's not very profitable. MR. HOVIOUS: Can we conclude for the day? I think that tempers are frayed and have been. And I just don't want it to get worse. MS. RAMAKRISHNAN: Maybe just yours. But that's fine. MR. HOVIOUS: Well, definitely mine. Ain't no maybe. That's me. MS. RAMAKRISHNAN: That's fine. Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 136 of 219 PageID #: 1030 64 STATE OF KENTUCKY ) ) ) SS ) COUNTY OF WARREN ) I, Felicia B. Thomas, a Notary Public within and for the State at Large, do hereby certify that the foregoing deposition of TRACY DILLARD was taken before me at the time and place and for the purpose in the caption stated; that the witness was first duly sworn to tell the truth, the whole truth and nothing but the truth; that the deposition was reduced to shorthand writing by me in the presence of the witness; that the foregoing is a full, true and complete transcript of said deposition so given to the best of my ability; that there was no request the witness read and sign the deposition; that the appearances were as stated in the caption. I further certify that I am neither of counsel, nor of kin to either of the parties to this action, and am in no way interested in the outcome of said action. _____________________________ Felicia B. Thomas, CCR-KY Notary Public Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 137 of 219 PageID #: 1031 DONNA S. HEIDEL, CCR(KY), LCR(TN) 247 Heidel Lane Russellville, Kentucky 42276 PHONE (270)726-1497, FAX (270)726-9818 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF KENTUCKY BOWLING GREEN DIVISION MARTIN RICO MURILLO, et al, ) ) Plaintiffs, ) ) vs ) ) )Civil Action No. 1:15-cv-69-GNS )Judge Stivers )Magistrate Judge Brennenstuhl ) TRACY DILLARD, BRUCE DILLARD, ) and CAROLYN DILLARD, ) ) Defendants. ) ) DEPOSITION OF TRACY DILLARD VOLUME II Taken by Plaintiffs Bowling Green, Kentucky September 13, 2016 Reported by: Donna S. Heidel Court Reporter Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 138 of 219 PageID #: 1032 Donna S. Heidel, CCR(KY),LCR(TN) Phone 270-726-1497 Fax 270-726-9818 66 A P P E A R A N C E S FOR THE PLAINTIFFS: Ms. Lakshmi Ramakrishnan TEXAS RIOGRANDE LEGAL AID, INC. 300 South Texas Blvd. Weslaco, Texas 78596 Caitlin Berberich SOUTHERN MIGRANT LEGAL SERVICES A Project of Texas RioGrande Legal Aid, Inc. 311 Plus Park Blvd., Suite 135 Nashville, Tennessee 37217 FOR THE DEFENDANTS: Mr. Gregg Hovious MIDDLETON REUTLINGER 401 South Fourth Street, Suite 2600 Louisville, Kentucky 40202 ALSO PRESENT: Mr. Bruce Dillard Ms. Carolyn Dillard * * * Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 139 of 219 PageID #: 1033 Donna S. Heidel, CCR(KY),LCR(TN) Phone 270-726-1497 Fax 270-726-9818 67 I N D E X PAGE DIRECT EXAMINATION BY MS. RAMAKRISHNAN . . . . . . . 69 * * * E X H I B I T I N D E X EXHIBIT DESCRIPTION PAGE R Check copies 95 S Check copies 104 * * * Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 140 of 219 PageID #: 1034 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Donna S. Heidel, CCR(KY),LCR(TN) Phone 270-726-1497 Fax 270-726-9818 68 On Tuesday, September 13, 2016, commencing at 8:30 a.m., the continuation videotaped deposition of TRACY DILLARD was taken pursuant to Notice and pursuant to the Federal Rules of Civil Procedure, on behalf of the plaintiffs at the law offices of Kerrick Bachert, PSC, 1025 State Street, Bowling Green, Kentucky. P R O C E E D I N G S Whereupon TRACY DILLARD, having been duly sworn, was examined and testified as follows: MS. BERBERICH: We are back on the record. This is Caitlin Berberich. My business address is Southern Migrant Legal Services, 311 Plus Park Boulevard, Suite 135, Nashville, Tennessee 37217. Today's date is September 13, 2016. The time is 8:30. We are currently located at Kerrick and Bachert, 1025 State Street, Bowling Green, Kentucky. The deponent's name is Tracy Dillard. I'm going to just restate who's present today just because it's slightly different than yesterday. We're continuing the deposition of Tracy Dillard that started yesterday. Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 141 of 219 PageID #: 1035 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Donna S. Heidel, CCR(KY),LCR(TN) Phone 270-726-1497 Fax 270-726-9818 69 So present is myself, Caitlin Berberich, attorney for the plaintiffs, Lakshmi Ramakrishnan, attorney for the plaintiffs. The court reporter today is Donna Heidel. MR. HOVIOUS: I'm Greg Hovious. I represent the Dillards. MS. BERBERICH: And Bruce, Carolyn and Tracy Dillard also are present. DIRECT EXAMINATION BY MS. RAMAKRISHNAN: Q. Good morning, Mr. Dillard. A. Good morning. Q. I'll just remind you that yesterday you were sworn into and gave an oath to tell the truth and that oath continues through today's deposition. A. Okay. Q. I believe when we finished yesterday, we were talking about taking down the tobacco from the barn? A. (Nods head affirmatively.) Q. So I'd kind of like to start in that process. Were there any conditions that determined or affected when the crop would be ready to be lowered from the barn? Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 142 of 219 PageID #: 1036 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Donna S. Heidel, CCR(KY),LCR(TN) Phone 270-726-1497 Fax 270-726-9818 70 A. Yes. I mean, it has to cure out and the weather helps it to cure out. Q. So what do you mean by the weather helps it to cure out? A. It has to rain and then be dry. And it's a six-to-ten week process for the tobacco to cure out and be ready. Q. Did the weather, would the weather affect whether there would be work for the workers? A. Yes. Q. So were there days when there was no work because of the weather? A. Possibly. I can't remember. Q. Okay. So when we were talking about the work, I want to talk about the 2014 tobacco season. A. Yes. Q. When the plaintiffs worked there, okay? A. Yes. Q. What about during the cutting? Would there be any days when there was no work because of weather conditions? A. Yes, I'm sure there was. But I can't remember precise days. Q. And did someone have to decide we can't work today because there's, because the weather is not Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 143 of 219 PageID #: 1037 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Donna S. Heidel, CCR(KY),LCR(TN) Phone 270-726-1497 Fax 270-726-9818 71 right? A. Yes. Q. And who would make that decision? A. Like I said yesterday, me and my father make all the decisions. Q. Okay. And that was the case in 2014? You and your father made all the decisions? A. Yes. Q. So what kind of weather would cause the workers not to be able to work? A. Well, if it were raining all day, you know, I don't expect anyone to go out and work in the rain. Q. Would you ever expect them to work in some rain? A. Some rain? Q. Like light rain? A. No. Q. So if it was raining at all, the workers didn't work? A. Yeah. If it just come a shower for 30 minutes, then it would dry off and they would go back to work. It's just a common sense thing. Q. And is that true when they were working in the barns? A. Well, in the barns they were in the dry. They Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 144 of 219 PageID #: 1038 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Donna S. Heidel, CCR(KY),LCR(TN) Phone 270-726-1497 Fax 270-726-9818 72 could work. Q. So other than the rain affecting when the tobacco could be pulled down, it didn't stop people from doing the work in the barn? A. Exactly. Q. In 2014 when they were stripping the tobacco, did the H2A workers and the plaintiffs work together? A. They would all work closely together, I mean, in the same barn or if that's what you're asking. Q. So you would all go to one location and strip that barn in a day; is that correct? A. Yes. Q. How many different barns did you strip tobacco in in 2014? A. I have no idea. I mean, it's been two years ago and a lot's happened since then. Q. Were the barns that the workers stripped in in 2014 ones that were owned by you? A. Yes, they were owned. And then I have barns that I lease from other farmers or got them with the farm lease. They would have tobacco barns on the farm and, you know. Q. Did you -- so do you know how many barns you owned or you owned in 2014? Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 145 of 219 PageID #: 1039 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Donna S. Heidel, CCR(KY),LCR(TN) Phone 270-726-1497 Fax 270-726-9818 73 A. Me, myself? Q. Yes. A. Solely me? Q. Uh-huh. A. Yes. Q. How many barns did you own? A. I owned one barn. Q. And did the workers work on barns owned by your parents in 2014? A. Yes. Q. Do you know how many barns they had in 2014? A. They have three barns on their farm. Q. Is that farm in Monroe County? A. Yes. Q. Do they have barns in, do your parents own barns in Hart County? A. We own one together in Hart County. Q. And was that the case in 2014 when the plaintiffs worked there? A. Yes. MR. HOVIOUS: Could we just assume we're talking 2014 like you did yesterday? MS. RAMAKRISHNAN: Okay. Q. Did they, did the workers ever start in one barn in the morning and then move to another one Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 146 of 219 PageID #: 1040 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Donna S. Heidel, CCR(KY),LCR(TN) Phone 270-726-1497 Fax 270-726-9818 74 later in the day in 2014? A. Not that I recall. Q. So normally would they work only in one location and just for the whole day? A. Yes. Q. Who supervised the workers when they were stripping the tobacco? A. Pablo Rico most of time. He was with them all the time. Q. What about you? How often did you go to the barns to see them stripping tobacco? A. Couple times a week. Q. What about your parents? How often did they go to the barns? A. I don't recall how many times. Q. What time would they start in the stripping? A. I don't know. I mean, they'd start whenever they wanted to, 7 or 8 or whenever they wanted to start. Q. And would you tell them -- who would tell them tomorrow you've got to work in this barn? A. I would. Q. Would anybody else make a decision about where they would start work the next day? A. My father might. I don't remember. Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 147 of 219 PageID #: 1041 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Donna S. Heidel, CCR(KY),LCR(TN) Phone 270-726-1497 Fax 270-726-9818 75 Q. And how long did they work for you stripping? A. How long did they work? Q. On a day, on an average day how long did they work? A. I don't know. Probably some would work six hours; some would work ten hours. I mean, it was up to them how much they worked. Q. Did you have -- you and -- you said that they, it's up to them how much they worked. But were you expecting them to get some things done by a certain time? A. Well, I wanted them to. But, you know, I mean, they're adults and they're people so I can't force someone to do something, you know. Q. Well, I mean, if you had a problem with their work, did you have the authority to say work faster? A. Well, yes. I had the authority to say that. Q. And if you thought they weren't doing a good job, could you discipline the workers? A. What do you mean by discipline? Q. Like give them a warning. A. Yeah, I'm sure I could. Q. Okay. But you never asked people to work a certain number of hours in order to get the work Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 148 of 219 PageID #: 1042 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Donna S. Heidel, CCR(KY),LCR(TN) Phone 270-726-1497 Fax 270-726-9818 79 Q. Okay. So would you have to tell them you were going to do these particular sticks to strip? A. Yes. Q. And would your dad come and tell them that they have to do these particular sticks to strip? A. Some, me or my dad would tell them, yes. Q. Would you double check to make sure they weren't mixing the tobacco leaves? A. They would only strip mine. It would be sections in a barn. I heard you say yesterday you'd never seen one except on YouTube but it would probably do you some good to go look. But there are sections in a barn. So you know, they know where to go. And they were shown where to stop taking down my tobacco and start taking down my father's. Q. And when they are graded and packaged, was there some sort of way for you to mark these are dad's leaves and this is your leaves? A. When they baled it, we marked on the cardboard of the bales. Q. The plaintiffs in 2014, when they worked in barns, they worked on your tobacco and they worked on your dad's tobacco? A. Correct. Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 149 of 219 PageID #: 1043 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Donna S. Heidel, CCR(KY),LCR(TN) Phone 270-726-1497 Fax 270-726-9818 85 grading? MR. HOVIOUS: Object to the form. Q. What is involved in the packaging of the tobacco? A. They throw the leaves into a baler and it mashes it down and makes a bale. Q. Are all of the workers working on the baler as a group or do some people, are some people doing some other task besides the baling? A. They work as a group. Q. And when would the baling of the tobacco be done? A. Usually they do it at the end of the day. Q. So was the process stripping and then baling each day? A. Sometimes they would strip for two or three days and then go bale one afternoon. Q. Would they be doing any baling all day? A. No. Q. How long does it take? How many hours a day would they be baling the tobacco? A. I have no idea. Q. Would you go out and see them do that process, the baling? A. Yes. Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 150 of 219 PageID #: 1044 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Donna S. Heidel, CCR(KY),LCR(TN) Phone 270-726-1497 Fax 270-726-9818 86 Q. Would anyone else go from your family to see them do it? A. My dad would go. Q. What about your sons? A. Possibly because it's in our shop. And if they work in the shop, they would be out there. Q. What about Carolyn? Would she go out to see the baling process? A. She probably did. I'm not certain. MR. HOVIOUS: If you don't know, you don't know. Q. Are you aware that you filed counterclaims in this lawsuit? A. Yes. Q. Against the plaintiffs. Do you know what the counterclaims are? A. Yes. Q. Was one of the claims related to the counting of sticks? A. Yes. Q. So I'd like to find out how do we count sticks. What kind of work was paid by the stick? A. Cutting, housing, stripping. MR. HOVIOUS: Objection; waste of time; asked and answered. Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 151 of 219 PageID #: 1045 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Donna S. Heidel, CCR(KY),LCR(TN) Phone 270-726-1497 Fax 270-726-9818 87 MS. RAMAKRISHNAN: Now, this is about your counterclaim so this is your opportunity to -- MR. HOVIOUS: It's the same question, yeah. Q. So was the counting, I mean, was the cutting always paid by stick? A. Yes. Q. Was it ever paid by hour? A. No. Q. In 2014 it was always paid by stick? A. Yes. MR. HOVIOUS: Objection; asked and answered; waste of time. Q. Did you look at hours in order to pay them? A. No. Q. Did the hours matter to you when you were paying them? A. I don't remember. Q. Why did you pay the work for cutting by stick? A. Because the workers could make more money doing it by stick than they could by the hour. Q. Okay. Wasn't it harder to keep track of the sticks than just paying everybody $10.10 per hour? A. No. Because if I done it by the hour, I would Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 152 of 219 PageID #: 1046 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Donna S. Heidel, CCR(KY),LCR(TN) Phone 270-726-1497 Fax 270-726-9818 88 have probably had to hire three people and had someone there with a computer because the guys would might work an hour and go rest for two hours. I would have had to had multiple people keeping up with the time of 30 people. Q. So you didn't have to keep track of their time in the cutting; is that contract? A. That's correct. Q. Was somebody keeping track of the time during the cutting? A. Pablo said he was but I don't know if he was or wasn't. Q. So what about in the stripping? Was it always paid by stick? A. Yes. Q. I'm sorry. I shouldn't have skipped to stripping. Let's talk about cutting again. How do they count the sticks in the cutting? A. They cut two rows of tobacco and they put six plants on a stick. And then someone would walk down through there and count the sticks. Q. Who is the someone who would count the sticks? A. Pablo. Q. Was it always Pablo? A. Yes. Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 153 of 219 PageID #: 1047 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Donna S. Heidel, CCR(KY),LCR(TN) Phone 270-726-1497 Fax 270-726-9818 93 A. Well, yes. Q. In the stripping were they ever paid by hour? A. No. Q. Did you keep track of the hours that they spent stripping? A. No. Q. When somebody -- was Pablo Rico keeping track of the hours that they spent stripping in 2014? A. I don't know. Q. When you went to pay the workers, did anybody try to compare to see how many hours they worked before writing a check for the stripping? A. I don't know. Q. Were you aware of your obligation to pay inbound transportation for H2A workers in 2014? A. Yes. MR. HOVIOUS: Object to form; what do you mean by inbound transportation? MS. RAMAKRISHNAM: Okay. Inbound transportation is -- okay. How about this. Q. Let me break it down and make it a little easier. Do you know in 2014 who paid for the transportation for a worker from their home village to the United States Consulate in Mexico? A. No, I don't know. Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 154 of 219 PageID #: 1048 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Donna S. Heidel, CCR(KY),LCR(TN) Phone 270-726-1497 Fax 270-726-9818 98 Q. Do you know how much workers spent to get from their home to your farm? A. I don't know. Q. Can you look in the package for one that's marked G, Exhibit G, please? You don't have a G? Okay. We're looking at Exhibit G which is marked Dillard 002004. Do you see that? A. Yes. Q. Can you take a look through this top page? A. Okay. Q. Have you ever seen this page before? A. Yes. Q. Do you know what it is? A. It looks like the fees that you were talking about earlier. Q. Okay. Now, do you see the date where it says date started work there? A. Yes. Q. What date does that say? A. 7/13. Q. So this is a fee sheet for 2013, for H2A workers in 2013; is that correct? MR. HOVIOUS: Wait a minute. Wait a minute. Got it. Q. And do you remember Ray Wilcoxson sending Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 155 of 219 PageID #: 1049 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Donna S. Heidel, CCR(KY),LCR(TN) Phone 270-726-1497 Fax 270-726-9818 99 these kind of documents to you in 2013? A. I don't remember it but here they are so I suppose he did. Q. Do you know if he sent something like that in 2014? A. I don't remember. Q. If he had of sent something like that, would you have sent them to us? A. Yes. Q. Okay. So if we look, it says total due within first week of arrival, $449.97. A. Yeah. Q. And then it says do no later than July 16, 2013; do you see that? A. Yeah. Q. Was it your understanding in 2013 that you were obligated to reimburse workers for their inbound transportation expenses within their first week of work? MR. HOVIOUS: Object to form; calls for legal conclusion. A. It looks like way. Q. And did you pay? I mean, I'll let you look too. Look on the next page Dillard 002005. A. Uh-huh (yes). Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 156 of 219 PageID #: 1050 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Donna S. Heidel, CCR(KY),LCR(TN) Phone 270-726-1497 Fax 270-726-9818 100 Q. And can you tell me what these are? A. Well, it looks like it matches the front page, one check for a hundred dollars that was advanced when they got there and then the other check for the remaining balance. Q. So you paid this worker, Abraham Garcia Salvador, $449.97 in travel reimbursement in 2013, correct? MR. HOVIOUS: Object to form. Did you pay Wilcoxson or the worker? THE WITNESS: The worker. Q. Now, do you have any checks for over $300 for reimbursement of travel expenses to the workers in 2014? A. I don't know. Q. Did you talk to Mr. Wilcoxson about whether what you did in 2013 is what you would have to do in 2014? A. I don't recall. Q. So do you think that you reimbursed workers for their inbound travel expenses in 2014? A. If I was supposed to, I did, yes. Q. But you don't know if you were supposed to in 2014? A. Well, I'm sure I did but -- Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 157 of 219 PageID #: 1051 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Donna S. Heidel, CCR(KY),LCR(TN) Phone 270-726-1497 Fax 270-726-9818 109 2014 H2A crew in the tobacco? A. Yes. Q. Okay. And who made him the supervisor? A. I did. Q. And why did you decide to make him a supervisor? A. Because I can't speak Spanish. Q. Was there anyone else that you had that was bilingual or spoke English or Spanish? A. No. His brother Martin could speak fairly good English. Q. Did you talk to Pablo about all the kinds of things he was going to be in charge of? A. Well, he was just in charge of keeping up with their stick counts and their hours when they were doing things by the hour. Q. What other kinds of responsibilities did he have? A. None that I can think of. Q. Was he responsible for making sure the crew kept the housing in good order? A. Well, yeah. I would tell him that -- I would tell him to have them to keep the trash picked up. And because I live in the country but we do have neighbors and neighbors fuss if thrash in the yard Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 158 of 219 PageID #: 1052 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Donna S. Heidel, CCR(KY),LCR(TN) Phone 270-726-1497 Fax 270-726-9818 110 and everything else. Q. Would he have -- was it more like he was translating your directions or did he have an independent duty to kind of keep them in line? MR. HOVIOUS: Object to the form. A. He was translating my directions. But I mean, I don't know. He could have took it upon himself, I guess, to done other things. But I don't know. Q. That wasn't something that you told him that was his responsibility to do? A. Right. Q. How long was Pablo Rico a supervisor on your farm? A. The '13 and '14 crop. Q. Could he hire any workers? A. No. Q. Could he fire workers? A. No. Q. If he thought a worker was not good, what would he do? A. He would tell me, I guess. Q. Would he talk to other members of your family to get directions? A. I'm not sure. Q. When you -- when they had to get ready to go Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 159 of 219 PageID #: 1053 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Donna S. Heidel, CCR(KY),LCR(TN) Phone 270-726-1497 Fax 270-726-9818 111 to a particular field, who communicated to him that they needed to go work in a particular place? A. I would tell him. Q. Would your dad tell him? A. He might have a few times. Q. If Rico had a question about something, who would he, like about how to deal with a situation in a crew, who would he talk to. MR. HOVIOUS: Object to the form; calls for speculation. A. He would call me I suppose. Q. Would he call your mom? A. I'm not aware if he ever did. Q. Would he call your dad? A. I don't know if he did or not. Q. But could your mom or dad communicate instructions to Pablo Rico if you were not available? A. Yes. Q. Would they communicate instructions to Mr. Rico if you were not available? MR. HOVIOUS: Object to the form. A. Like I said just a second ago, you know, I'm not aware if he ever did. Q. What happened to Pablo Rico after the 2014 Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 160 of 219 PageID #: 1054 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Donna S. Heidel, CCR(KY),LCR(TN) Phone 270-726-1497 Fax 270-726-9818 116 Exhibit K is a voluminous exhibit bearing production numbers Dillard 4092 continuing apparently continuously through 4291. It appears to be a set of mainly handwritten financial records. Q. Do you mind just flipping through those? A. Okay. Q. Do you know what these documents are? A. It looks like, this first one looks like where they were probably stripping and then it's got, I can't really tell, but it's something that Pablo did about the work. Q. So do you use the word field tallies to describe some of these notes that Pablo took? MR. HOVIOUS: Object to the form. A. I've never used that term, no. Q. Or just notes? A. Right. Q. I mean, they're just like -- what would you call them if you had a word for it? A. Just the daily work log or something I guess you would say. I'm not certain what I would, I mean. Q. And are these documents that you would have looked at during the 2014 season? Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 161 of 219 PageID #: 1055 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Donna S. Heidel, CCR(KY),LCR(TN) Phone 270-726-1497 Fax 270-726-9818 119 MS. RAMAKRISHNAN: Oh, I'm sorry. You did ask that. I apologize. I'm sorry. (Short break.) MS. BERBERICH: We're back on the record. Again, my name is Caitlin Berberich. I work at Southern Migrant Legal Services, 311 Plus Park Boulevard, Nashville, Tennessee 37217. The date is September 13, 2016. The time is 10:00 in the morning. We are working at right now at Kerrick and Bachert at 1025 State Street, Bowling Green, Kentucky, and the deponent is Tracy Dillard. BY MS. RAMAKRISHNAN: Q. Mr. Dillard, who owns the housing where the workers were housed in 2014? A. It's on my parents' farm and it's their house. I mean, it's not in my name. Q. Did you help build it? A. No, a carpenter built it. Q. Did you help pay for the carpenter who built it? A. I don't remember. Q. Prior to the arrival of the workers at the housing in 2014, did you know that the housing had to be inspected? A. Yes. Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 162 of 219 PageID #: 1056 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Donna S. Heidel, CCR(KY),LCR(TN) Phone 270-726-1497 Fax 270-726-9818 131 And you tell your folks down there we're coming back after you. MS. RAMAKRISHNAN: So can we have him answer this question or are you going to maintain your objection? MR. HOVIOUS: Ask a factual question of this witness. MS. RAMAKRISHNAN: This is a factual question. Can you repeat the question that I asked? (To court reporter.) COURT REPORTER: "On what basis are you giving -- " sorry. "In 2014 was your dad able to fulfill his contract because the plaintiffs planted and harvested his crops. MR. HOVIOUS: Same objection. A. I don't know if he filled his contract or not. MS. RAMAKRISHNAN: Okay. I think I'll pass the witness. MR. HOVIOUS: Thank you. * * * (The taking of the foregoing deposition was concluded at 10:20 a.m.) SIGNATURE NOT REQUESTED Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 163 of 219 PageID #: 1057 Donna S. Heidel, CCR(KY),LCR(TN) Phone 270-726-1497 Fax 270-726-9818 132 STATE OF KENTUCKY COUNTY OF LOGAN C E R T I F I C A T I O N I, Donna S. Heidel, Notary Public in and for the State of Kentucky at Large do hereby certify that the foregoing deposition of TRACY DILLARD was taken by me at the time, place, and for the purpose mentioned in the caption; that same was taken by me in machine shorthand and transcribed by computer-aided transcription; that no request was made by counsel for any party that the deposition be submitted to the witness for reading and signature; and the foregoing pages of typewritten matter contain a true, correct, and complete copy of my said notes to the best of my ability. Further I state that I am not related to any parties involved or counsel of record and have no financial interest in the outcome of said action. Given under my hand this 21st day of September, 2016. DONNA S. HEIDEL, Court Reporter and Notary Public in and for the State of Kentucky at Large My commission expires: 6-20-2018 Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 164 of 219 PageID #: 1058 DONNA S. HEIDEL, CCR(KY), LCR(TN) 247 Heidel Lane Russellville, Kentucky 42276 PHONE (270)726-1497, FAX (270)726-9818 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF KENTUCKY BOWLING GREEN DIVISION MARTIN RICO MURILLO, et al, ) ) Plaintiffs, ) ) vs ) )Civil Action No. 1:15-cv-69-GNS )Judge Stivers )Magistrate Judge Brennenstuhl TRACY DILLARD, BRUCE DILLARD, ) and CAROLYN DILLARD, ) ) Defendants. ) ) DEPOSITION OF BRUCE DILLARD Taken by Plaintiffs Bowling Green, Kentucky September 13, 2016 Reported by: Donna S. Heidel Court Reporter Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 165 of 219 PageID #: 1059 Donna S. Heidel, CCR(KY),LCR(TN) Phone 270-726-1497 Fax 270-726-9818 2 A P P E A R A N C E S FOR THE PLAINTIFFS: Ms. Lakshmi Ramakrishnan TEXAS RIOGRANDE LEGAL AID, INC. 300 South Texas Blvd. Weslaco, Texas 78596 Caitlin Berberich SOUTHERN MIGRANT LEGAL SERVICES A Project of Texas RioGrande Legal Aid, Inc. 311 Plus Park Blvd., Suite 135 Nashville, Tennessee 37217 FOR THE DEFENDANTS: Mr. Gregg Hovious MIDDLETON REUTLINGER 401 South Fourth Street, Suite 2600 Louisville, Kentucky 40202 ALSO PRESENT: Mr. Tracy Dillard Ms. Carolyn Dillard * * * Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 166 of 219 PageID #: 1060 Donna S. Heidel, CCR(KY),LCR(TN) Phone 270-726-1497 Fax 270-726-9818 3 I N D E X PAGE DIRECT EXAMINATION BY MS. RAMAKRISHNAN . . . . . . . 5 * * * E X H I B I T I N D E X (No Exhibits Introduced.) * * * Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 167 of 219 PageID #: 1061 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Donna S. Heidel, CCR(KY),LCR(TN) Phone 270-726-1497 Fax 270-726-9818 4 On Tuesday, September 13, 2016, commencing at 10:30 a.m., the videotaped deposition of BRUCE DILLARD was taken pursuant to Notice and pursuant to the Federal Rules of Civil Procedure, on behalf of the plaintiffs at the law offices of Kerrick Bachert, PSC, 1025 State Street, Bowling Green, Kentucky. P R O C E E D I N G S MS. BERBERICH: We're going on the record. This is Caitlin Berberich. I work at Southern Migrant Legal Services, 311 Plus Park Boulevard, Suite 135, Nashville, Tennessee 37217. Today's date is September 13, 2016. The time is 10:30 a.m. We are at Kerrick and Bachert at 1025 State Street in Bowling Green, Kentucky. The deponent is Bruce Dillard. And if you want to go ahead and administer the oath. * * * Whereupon, BRUCE DILLARD, having been duly sworn, was examined and testified as follows: MS. BERBERICH: And then I'm just going to quickly note who's present. Present is Caitlin Berberich, attorney for the plaintiffs, Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 168 of 219 PageID #: 1062 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Donna S. Heidel, CCR(KY),LCR(TN) Phone 270-726-1497 Fax 270-726-9818 5 Lakshmi Ramakrishnan, attorney for the plaintiffs, Donna Heidel, the court reporter. MR. HOVIOUS: I'm Greg Hovious, law firm of Middleton Reutlinger. I'm here on behalf of the Dillards. This is Bruce Dillard, Tracy Dillard and Carolyn Dillard. Thank you. DIRECT EXAMINATION BY MS. RAMAKRISHNAN: Q. Good morning, Mr. Dillard. A. Good morning. Q. Could you please state your full name for the record. A. Bruce Edward Dillard. Q. Have you ever been deposed before? A. No. Q. So I'm just going to go through quickly some of the ground rules. So you've been placed under oath and do you understand that you should answer fully and truthfully? A. You need to talk up just a little. I'm sort of hard of hearing. MR. HOVIOUS: He is very hard of hearing. Q. Okay. So do you understand that you've been Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 169 of 219 PageID #: 1063 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Donna S. Heidel, CCR(KY),LCR(TN) Phone 270-726-1497 Fax 270-726-9818 8 a mechanic for a year, maybe a year and a half. Q. Like an auto mechanic? A. Yeah. Q. Did you finish high school? A. Yes. Q. Did you go to college? A. No. Q. So how long have you been farming? A. Since '68, 1968. Q. And when did you get married? A. 1967, I think. Q. So you started farming after you got married? A. Yes. MR. HOVIOUS: It's a very rude question to ask a man in front of his wife. Q. And what kind of crops do you grow on your farm? A. Right now? Q. Yes. A. Corn, wheat, and soybeans. Q. What kind of the crops did you grow on your farm in 2014? A. Tobacco, corn, wheat, soybeans. Q. In 2014 did you grow tobacco on land that you owned? Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 170 of 219 PageID #: 1064 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Donna S. Heidel, CCR(KY),LCR(TN) Phone 270-726-1497 Fax 270-726-9818 9 A. Yes. Q. Where did you grow that tobacco? A. In Monroe County, in Allen County. Q. Did you grow tobacco in 2014 on land that you owned in Hart County? A. No. I think we had corn on that land. Q. Do you own land in Barren County? A. No. Q. Do you own land in Tennessee? A. No. Q. Did you grow, in 2014 did you grow tobacco on land owned by Tracy Dillard? A. Did I grow tobacco on land owned by Tracy? No, I don't think so. Q. Did you grow any other crops like corn, wheat, or soybeans on land owned by Tracy Dillard? A. We grew some corn together. Q. That was in 2014? A. Yes. Q. Do you raise livestock? A. No. Q. Did you raise livestock in 2014? A. No. Q. Does anyone own your farm with you? A. My wife. Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 171 of 219 PageID #: 1065 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Donna S. Heidel, CCR(KY),LCR(TN) Phone 270-726-1497 Fax 270-726-9818 10 Q. Did your wife own your farm with your in 2014? A. Yes. MR. HOVIOUS: Objection; asked and answered. Q. Just to clarify, some of my questions will be about present day and some of my questions will be about 2014. And I will specify when I'm asking a question about 2014. MR. HOVIOUS: Objection; move to strike. Q. Who shares in the profits of your farm? A. Well, me and my wife. Q. Did you and your wife share the profits of your farm in 2014? A. What little profit it was, we did. Q. Is your wife a farmer too? A. Well, she's a farm wife. But she takes care of the house. She don't go out in the field and work, no. Q. Does she make decisions about the farm? A. Well, we'll talk about things together. I mean, she don't go out and buy fertilizer and stuff like that and make the decisions, no. Q. Did she make any decisions about the farm in 2014? Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 172 of 219 PageID #: 1066 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Donna S. Heidel, CCR(KY),LCR(TN) Phone 270-726-1497 Fax 270-726-9818 11 A. No, not like purchases, no. She had an input but she did not make the decision solely by herself to go out and make a decision to buy a tractor or whatever, no. Q. Do you make decisions about your farming with Tracy? A. Sometime. Q. What kind of things do you decide together with Tracy? A. Well, what kind of seed we're going to plant certain crops, machinery that we're going to purchase, just general stuff. Q. Okay. So do you own the equipment that you use on your farm? A. Part of it. Q. In 2014 in the tobacco, did you own the equipment that was used in the tobacco in 2014? A. Part of it. Q. And when you say part of it, is there someone else that owns that equipment? A. Yes. Q. Who owns that equipment? A. Tracy, my two grandsons. Q. Do you lease equipment or did you lease equipment in 2014 in the tobacco farming? Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 173 of 219 PageID #: 1067 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Donna S. Heidel, CCR(KY),LCR(TN) Phone 270-726-1497 Fax 270-726-9818 12 A. No, not in tobacco. I think we maybe leased an acre -- (background noise, inaudible). Q. Can you repeat what you just said? What was it that you might have leased? A. I think we leased, we run two combines cutting corn and beans. And we may have leased one. I'm not sure whether we did or not another one. But nothing pertaining to tobacco. Q. So who makes purchases of seed for your farm in 2014? A. Me and Tracy. Q. Do you buy one big lot of seed with Tracy or are there different or do you have your kind of seed and he has his kind of seed? A. Well, it's different every year. Sometimes yes, sometimes no. Q. Do you remember in 2014? A. No, I don't remember. Q. And do you remember purchasing any equipment in 2014? A. Yes. Q. What equipment did you purchase in 2014? A. Tractor. Q. Tractor. And was that tractor one that you bought with Tracy? Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 174 of 219 PageID #: 1068 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Donna S. Heidel, CCR(KY),LCR(TN) Phone 270-726-1497 Fax 270-726-9818 13 A. I'm not sure. It would have either been in my time or his name one. I'm not sure. Q. What about fertilizers? Did you purchase fertilizer for the crops in 2014? A. Yes. Q. Did you personally purchase the fertilizer? A. It's was a joint decision. Q. Were fertilizers used for your plants and Tracy's plants? A. Yeah. Q. Did you purchase pesticides in 2014? A. Yes. Q. And did you purchase them by yourself or with someone else? A. Joint. Q. Joint decision. And were those pesticides used in your plants and in Tracy's plants? A. Yes. Q. In 2014 when did you decide how many acres of tobacco to plant or for the 2014 season when did you decide? A. Well, just like Tracy told you, you have contracts with tobacco companies and you just grow what your contract is. That varies from year to year. Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 175 of 219 PageID #: 1069 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Donna S. Heidel, CCR(KY),LCR(TN) Phone 270-726-1497 Fax 270-726-9818 17 farming. And me and Tracy take care of the tobacco. And of course, we help them and they help us, you know. Q. So this is the -- A. It's a family operation. Q. So everybody just pitches in where they're needed; is that right? A. Yeah. Q. And you try to work together? A. Yes. Q. Was that true in 2014? A. Yes. Q. Who keeps track of the money in your operations? A. Well, I guess you could say my wife. She does the checkbook. Q. Do you write checks? A. Yes. Q. What do you write checks for? A. Well, if I go by Jr. Foods and I want a carton of cigarettes, I get a, buy a carton of cigarettes. If I'm at the Co-op and need a gallon of oil, I write a check for a gallon of oil or a jug of milk. Q. In 2014 did you pay bills that came in? A. No. Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 176 of 219 PageID #: 1070 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Donna S. Heidel, CCR(KY),LCR(TN) Phone 270-726-1497 Fax 270-726-9818 19 go through a season of tobacco. That would probably be easier. So what is the first process when you start a tobacco season? A. Seeding greenhouses. Q. Is that something that you personally go and do? A. I help some, yes. Q. How long is the process of seeding greenhouses? A. You can seed a greenhouse in one day, six or seven hours. Q. And how many greenhouses are there? A. There's six. Q. So it's something that takes around a week to do? A. Yes. Q. How often would you go out then in that week to help seed the greenhouses? A. Well, we don't seed them all at one time. We just seed one like today and three or four days later you seed another one. You don't want all your plants coming off the same day or the same week. You want to spread it out over a five- or six-week period. Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 177 of 219 PageID #: 1071 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Donna S. Heidel, CCR(KY),LCR(TN) Phone 270-726-1497 Fax 270-726-9818 23 Q. I guess my question is why does it matter whether they're your seeds or Tracy's seeds? A. It could be a different variety. Q. After you prepared -- after the seeded, you mentioned preparing the field. What other kinds of preparation did you have to make before the plants were set in the ground? A. After the fields was ready? Q. Uh-huh (yes). A. Well, nothing. Q. Do you have to secure workers? A. Do what? Q. Do you have to hire workers? A. Yes. Q. Who made the decision to hire workers? A. Well, it was a joint decision I guess. Q. A joint decision with whom? A. Tracy. Q. Do you talk to Carolyn about needing workers? A. Yeah. I asked her one night could we hire some. Q. And how do you decide how many you need? A. There's the tobacco setter takes four people. We've got two tobacco setters so that takes eight people. That's how we decide. Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 178 of 219 PageID #: 1072 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Donna S. Heidel, CCR(KY),LCR(TN) Phone 270-726-1497 Fax 270-726-9818 24 MR. HOVIOUS: That's been answered about three times in the last two days? MS. RAMAKRISHAN: But not by Mr. Dillard. MR. HOVIOUS: Well, are you going to ask everybody in the county how many people it takes? MS. RAMAKRISHAN: Okay. Q. So for the planting, where did the eight workers that you needed for planting, where did they come from? How did you get them? A. Well, they was migrant workers. Q. In 2014 they were migrant workers? A. Yeah. Q. If I say the word H2A workers, do you know what I mean? A. Yes. Q. Okay. Were there workers that you worked in your planting in 2014 H2A workers? A. I think part of them, most of them was. Q. Why did you decide to use H2A workers in the planting in 2014? A. In 2012 and '13, migrant workers was hired, illegal migrant workers was hard to come by in our area. So we decided to get H2A workers. Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 179 of 219 PageID #: 1073 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Donna S. Heidel, CCR(KY),LCR(TN) Phone 270-726-1497 Fax 270-726-9818 25 Q. Did you try to get workers who lived in the United States who were not illegal in 2014? A. Who were not illegal? Q. Right. Like people who live in the United States legally. Did you try to use those kinds of workers? A. Migrant workers? Q. It could be migrant workers. A. Yes. We run an ad in the paper. You have to. Q. And did anyone respond to your ad? A. Not one. Q. Do you remember using the service of let's say Jose' Bravo? A. Yes. That wasn't in 2014 though. Q. Did you ask Mr. Bravo to bring workers in 2014? A. No, I don't think so, not in '14, no. Q. Why did you not want to use Mr. Bravo? A. Because we was getting H2A workers. Q. How did you find out about H2A, the H2A program? A. I think maybe Tracy went to a farm meeting, like a county agent meeting, and they was talking about it. Q. Okay. So when Tracy told you about it, what Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 180 of 219 PageID #: 1074 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Donna S. Heidel, CCR(KY),LCR(TN) Phone 270-726-1497 Fax 270-726-9818 26 did you think about using H2A workers? A. I didn't know what to say or do. Q. Did anyone talk to you about what the requirements of the H2A program were for employers? A. Then, no. After we talked to Ray Wilcoxson, the guy that come out about the H2A workers, he told us about it. Q. When did you talk to Ray Wilcoxson? A. Well, I don't remember. Q. You had used the H2A workers in 2013; is that right? A. Oh, I don't know. Did we? We did they said. I forgot. Q. So prior to using them in 2013, did Ray Wilcoxson talk to you about the requirements of the H2A program? A. Prior to? Q. 2013. Was 2013 the first year you had H2A workers in your field? A. I think so. Q. So prior to using the workers in 2013, did you talk with anybody about the requirements of the H2A program? A. I didn't, no. Q. In 2014 you and Tracy decided to use H2A -- Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 181 of 219 PageID #: 1075 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Donna S. Heidel, CCR(KY),LCR(TN) Phone 270-726-1497 Fax 270-726-9818 27 I'm sorry. In 2014 you decided to use H2A workers to help plant your crops; is that right? A. Yes. Q. Okay. So you did not try to find any other kind of workers to work just on your crops? A. That was just work on my crop? Q. Uh-huh (yes). A. No. Q. Did you try to file a separate application for H2A workers to work just on your crops? A. I don't understand what you're asking. Q. Did you ever file an application with the Department of Labor to bring in H2A workers? A. No, I don't think so. Q. So when Tracy filed an application to bring in H2A workers, you decided together that those workers would work on your crops, correct? A. Yes. Q. Okay. So during the planting, did you -- when -- when did the H2A workers arrive in 2014 before the planting? MR. HOVIOUS: Object to form. A. When did they get there? Q. Uh-huh (yes). A. Oh, I'm going to say the last few days of Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 182 of 219 PageID #: 1076 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Donna S. Heidel, CCR(KY),LCR(TN) Phone 270-726-1497 Fax 270-726-9818 28 April or the first few days in May. Q. Was there anyone there to greet the workers when they arrived? A. I'm sure there was. Q. Were you there? A. I don't remember if I was. Q. Do you know if they had to fill out any paperwork when they arrived? A. Yes, my wife, I know -- I know they had to go in the office and do some paperwork but I don't know what. Q. When you say office, do you have a separate like office building on your farm? A. No, no, just a little office in my house. Q. So was it your wife that helped complete the paperwork with the H2A workers in 2014? A. Yeah. Q. Were you there when they were doing it? A. I don't think so. Yeah, I think I come in or something and seen them in there. But I wasn't, I didn't go in there and get in, do none of it myself. Q. And do you know if Tracy was there when they were doing -- A. I don't know. Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 183 of 219 PageID #: 1077 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Donna S. Heidel, CCR(KY),LCR(TN) Phone 270-726-1497 Fax 270-726-9818 30 setter with them, no. Q. Do you know who Pablo Rico Murillo is? A. Yes. Q. Did you ever speak to Pablo? A. Did I ever speak to him? Q. During the 2014 season? A. I think so, yeah. Q. Would you explain how to do -- would you ever ask Pablo to explain the work to workers? A. Yes. Q. Was Pablo there during the planting? A. Did Pablo what? Q. Was he there working when the planting was going on? A. Yes. Q. How was the planting paid? A. Paid? By the hour. Q. And do you know what rate they were paid for planting in 2014? A. It was something over $10 an hour but I can't remember the cents. I mean, I think 10, 20 or 30. I can't remember. Q. And who determined the wage rate to be paid to workers for planting? A. Who determined it? Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 184 of 219 PageID #: 1078 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Donna S. Heidel, CCR(KY),LCR(TN) Phone 270-726-1497 Fax 270-726-9818 33 Q. And then you just billed Mark Cherry for the hours that they worked? A. Yes. Q. But you paid or you all paid the workers for the work they did for Mark Cherry? A. Yes. Q. Back to the planting. Who kept track of the hours that they worked in the fields? A. Pablo and Tracy or me if we was, you know, there. Q. When you kept track of the hours, did you write it on a piece of paper? A. Well, yeah. When you get home at night, you start at 7 and you quit at 4. You was off an hour for dinner or an hour and a half. That's how we kept up with them. Q. By dinner, do you mean like evening dinner? A. Evening dinner? Q. Was there a time off for lunch? A. That's what we call dinner. Q. Okay. So in the topping it was also paid hourly? A. Say that again. Q. When they were doing the topping, it was also paid hourly, correct? Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 185 of 219 PageID #: 1079 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Donna S. Heidel, CCR(KY),LCR(TN) Phone 270-726-1497 Fax 270-726-9818 34 A. Yes. Q. And who was keeping track of the hours when they were topping? A. Pablo most of the time. Q. Did you ever go out to the fields when they were topping? A. Yes. Q. How often would you go out? A. Two or three times a week. Q. And topping is just, it was described as just pulling flowers off the tops of the plants, right? A. Break it off. Q. Break it off. Is there -- can they do it wrong? A. Long? Q. Wrong, like incorrectly. A. Well, no, not really. I mean, they can top it too low or too high. Q. Was there somebody who showed them the proper way to do it? A. Yes, we did. Tracy did. Pablo did. Q. Okay. Did you ever show them? A. Yes, I'm sure I have. Q. Would anybody correct them if they were doing it wrong? Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 186 of 219 PageID #: 1080 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Donna S. Heidel, CCR(KY),LCR(TN) Phone 270-726-1497 Fax 270-726-9818 35 A. I'm sure they would. Q. Would you also do it individually? A. I'm sure I would. Q. Were you able to speak to any of those 2014 H2A workers directly other than through Pablo Rico? A. Yes. Q. Who did you speak to? A. Martin was one. And I'm not good on the names. It was, I'm going to say three or four that could speak good English out of the whole bunch. Q. So some of the workers who spoke English would speak to you? A. Yes. Q. Okay. What kind of things would they speak to you about, the ones who spoke English? A. Well, when you went to Wal-Mart they would comment on how good looking the women was. And they just talked general stuff, you know. We want to start to work in the morning at 7:00. We want to start in the morning at 8:00. And just general stuff, I mean. Q. When you were setting tobacco, where were the fields where they set the tobacco? A. On the farms. Q. Okay. So it was in, some was in Hart County? Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 187 of 219 PageID #: 1081 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Donna S. Heidel, CCR(KY),LCR(TN) Phone 270-726-1497 Fax 270-726-9818 37 Michael Boyd drove some. Q. Did you ever drive workers? A. I have in the past but I can't remember -- I can't remember in '14 driving them. But I have in the past several times. Q. Do you know if Martin or Martin Rico ever drove workers? A. Who? Q. Pablo's brother Martin. A. Martin? I'm sure he has a time or two. Q. And who owned the vehicles that the workers were transported in? A. Yes. Q. Who owned the vehicles? A. I thought you said did I own them and I said yes. Q. Oh, no, I said -- let's try again. Who owned the vehicles that transported workers in 2014? A. I did mainly. But Pablo had a van that he drove sometimes. Q. So Pablo owned a van? A. Yes. And Martin owned a van. Q. Martin owned a van? A. Yes. Q. What happened to the van when Martin left? Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 188 of 219 PageID #: 1082 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Donna S. Heidel, CCR(KY),LCR(TN) Phone 270-726-1497 Fax 270-726-9818 39 A. Well, you know how many you needed to start with. I mean, in March you knowed how many you needed according to the acres of tobacco you grew. Q. So when did you decide that you were going to need workers to join in the summertime? A. In March. Q. And who decided how many workers to bring in? A. Tracy and myself I guess. Q. And when you decided to bring in workers, you wanted the workers to work on your crops, right? A. Yeah. Q. You didn't try to look for other workers to work just on your crops? A. No. Q. Did you think about applying for your own H2A workers to work on your own crops? A. I never thought about it. I don't know. Q. So together, you and Tracy decided to bring in workers to work on your crops and his crops? A. I guess. Q. So do you remember how many workers came in the summer of 2014? A. Well, I was thinking it was 22. But I may be wrong. I know one or two. One left. They got there one night and he didn't stay 24 hours. He Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 189 of 219 PageID #: 1083 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Donna S. Heidel, CCR(KY),LCR(TN) Phone 270-726-1497 Fax 270-726-9818 40 took out walking and we never did see him again. Q. Okay. Who was there to greet the workers when they arrived? A. I don't remember, Tracy, Tyler, Tyson or Carolyn. I know once or twice they come in to Wal-Mart in Lafayette and Tracy and I think maybe, I don't remember who went and got them. To be honest, I don't remember. Q. So for the 22 workers, they kind of came in different -- A. Yeah, they didn't all come at one time. Sometimes there was two or three and then five or six or seven or eight, you know, just -- Q. Were there any issues with them not coming on time or were they late in coming? A. Yeah. We had, it seemed like some was supposed to have been here and the embassy was shut down or something, and they couldn't get across the border or something there at one time. That may have been in '13. I kind of can't recall. Q. And when the workers arrived, what kind of work did they do when they started, the second group of H2A workers? A. The ones that come in the summer? Q. Yes. Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 190 of 219 PageID #: 1084 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Donna S. Heidel, CCR(KY),LCR(TN) Phone 270-726-1497 Fax 270-726-9818 41 A. They started topping or cutting. Q. Topping or cutting. Okay. And so how did you know when it was time to cut the tobacco? MR. HOVIOUS: Objection to form. A. Usually four to five weeks after you top, you start cutting. Q. Will the plant look a certain way? A. Well, yeah. Q. Who decides that the plant is looking like it's ready to cut? A. Just about anybody can decide that that was growed up on a farm. Q. But in 2014 who decided that you wanted the workers to go and start cutting? A. I guess me or Tracy. Q. Would you make a decision to start cutting your plants or were you deciding to cut yours and Tracy's plants? A. Whose ever was ready. Q. But you didn't -- you didn't only decide with regard to your own plants that it was time to cut? A. No. Q. And Tracy could tell workers to go and cut your plants, correct? A. Yes. Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 191 of 219 PageID #: 1085 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Donna S. Heidel, CCR(KY),LCR(TN) Phone 270-726-1497 Fax 270-726-9818 42 Q. Okay. How was the cutting paid? A. By the stick. Q. And do you remember the rates? A. I know we was supposed to pay them 40 cents a stick and we paid them 45 cents a stick. Q. Okay. How would the -- how would you determine which field to start cutting in? A. I thought I just told you. MR. HOVIOUS: Objection; asked and answered. Q. I was asking you when. When did you start? When did you know to start? But I'm wondering how did you know which particular fields? A. Four to five weeks after they're topped, they're ready to cut. Q. So was there an order of the fields? A. Yeah, more or less, yeah. Q. Did somebody keep track of the order that they were going to be cut? A. No, probably not. We didn't write it down. But we pretty well could remember in our heads. MR. HOVIOUS: That's completely not calculated to lead to discovery of admissible evidence. Q. But was it you and Tracy that -- Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 192 of 219 PageID #: 1086 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Donna S. Heidel, CCR(KY),LCR(TN) Phone 270-726-1497 Fax 270-726-9818 43 A. Yes. Q. -- that was in -- A. Yes. Q. -- in charge of the order? A. Yes. I thought Tracy explained to you yesterday that me and him made 90 percent of the decisions. Q. And you agree -- A. I agree with that. Q. -- with that statement? A. I agree with that. Q. And you together made 90 percent of the decisions -- A. Percent of the decisions, yes. Q. -- with regard to the workers that worked on your farm? A. Yes, yes, yes. Q. So -- MR. HOVIOUS: Please be patient so that she can finish her question before you answer. THE WITNESS: Okay. MR. HOVIOUS: We don't want to interrupt her, right? THE WITNESS: Okay. Q. How often did you go out in the fields when Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 193 of 219 PageID #: 1087 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Donna S. Heidel, CCR(KY),LCR(TN) Phone 270-726-1497 Fax 270-726-9818 44 they were cutting tobacco? A. Oh, two or three times a week. Q. And what did you do when you went to the fields? A. Observed. Q. Do you do any cutting yourself? A. No. Q. And after they cut, they loaded tobacco, right? A. (Nods head affirmatively.) Q. Would you go out and watch them load the tobacco? A. Yes. Q. Did you operate any of the trailers for where they loaded tobacco? A. Yes. Q. And when you were observing the workers and the cutting, why were you observing them? What was the point? A. Well, if you have a 50-acre field of tobacco, would you not like to just go by and look at it and see that the job was being done? I mean, I went to observe to see if it was being cut. Q. If you saw workers -- well, who showed them how to cut the tobacco? Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 194 of 219 PageID #: 1088 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Donna S. Heidel, CCR(KY),LCR(TN) Phone 270-726-1497 Fax 270-726-9818 45 MR. HOVIOUS: Object to the form. A. Tracy and Pablo. Michael Boyd showed them. Q. Did you ever show them? A. Yes. Q. And if you went to the fields and saw somebody not doing it correctly, would you tell them? A. Yes. Q. Okay. Would you -- when you went out to observe, did you make sure everybody was working? A. When they're in the tobacco field, there's 20, 25 hands. There's always a bunch under the shade tree sitting down, some working. They just don't go out there and line up and work for four hours. They sit in the vehicle and drink water. You just don't tell them you've got to go and work four hours without a break. They take breaks when they want to take breaks. Q. And how was this worker -- how was the work paid for cutting? We talked about, it was 45 cents? A. Yes. Q. Was there a -- was there a different rate for cutting and loading? A. Yes. Q. Okay. So was that 45 cents broken into the Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 195 of 219 PageID #: 1089 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Donna S. Heidel, CCR(KY),LCR(TN) Phone 270-726-1497 Fax 270-726-9818 46 two functions? A. (Nods head affirmatively.) Q. Were they always paid by the stick for cutting? A. Yes. Because they always make more money that way. That's the way they wanted to do it. Q. So will you compare what they would have made by hour to what they would have made by stick before paying them? A. Yes. They make more money. You cannot hire a migrant worker to cut tobacco by the hour. They want to work by the stick because they can make more money. Q. Okay. But so when they were doing cutting, they were never paid by hour; is that right? A. No, they was paid by stick. Q. Okay. Paid by stick. Was anybody keeping track of the hours while they were cutting? A. Well, yes, Pablo. He knows what time they got to the field and when they left to come home. Q. If two or three workers decided to take a nap under the shade, would Pablo note that down as well? A. No. It would take three or four people and a quarter horse in a 50-acre tobacco field and a Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 196 of 219 PageID #: 1090 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Donna S. Heidel, CCR(KY),LCR(TN) Phone 270-726-1497 Fax 270-726-9818 47 computer to keep up when two are sitting here loafing and talking on their cell phone and 22's over here working and here's some more over here sitting, here's some gone to the store. It's impossible. It is literally impossible. MR. HOVIOUS: Just answer the question. THE WITNESS: Sir? MR. HOVIOUS: Just answer the question. Q. So was -- so was anybody -- was anybody looking at the hours records to determine how much they should be paid for cutting? A. I don't know. Q. And then for loading, was somebody keeping track of the time spent loading? A. Ah, Pablo, I guess. I don't know. Q. But the loading, was it always paid by the stick? A. Yes. MR. HOVIOUS: Objection; asked and answered, asked and answered, asked and answered, asked and answered. MS. RAMAKRISHNAN: Okay. I think we could take a break. Okay. We'll finish and just Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 197 of 219 PageID #: 1091 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Donna S. Heidel, CCR(KY),LCR(TN) Phone 270-726-1497 Fax 270-726-9818 48 go through the next stage of the process. Q. After the cutting, what was the next stage of farming, tobacco farming in 2014? MR. HOVIOUS: Same objection. A. Well, stripping. Q. Was there any space between the cutting and the stripping? A. Usually when you get done cutting, the first you cut is ready to strip. So no, there was no space. Q. Is there some overlap where they're both cutting and stripping? A. We have done that in years past. I don't think we did in '14. Q. So in 2014 they finished cutting and then immediately started stripping? A. I think that's right. I wouldn't swear to it but I think that's right. Q. So who directed them to where they needed to start like lowering the tobacco? A. Well, you started with the fields that you cut first or where you hung in that barn. That's where you started. Q. Okay. And was there a particular time of day that they needed to start in the morning? Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 198 of 219 PageID #: 1092 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Donna S. Heidel, CCR(KY),LCR(TN) Phone 270-726-1497 Fax 270-726-9818 49 A. They usually start 6- to 8:00. Q. And who decided the start time? A. That's whatever -- we did not tell them when to start or when to quit. They done the work on their own. I mean, they done the deciding on their own what time to start and what time to quit. Q. And how was the stripping paid? A. By the stick. Q. Was somebody keeping track of the hours that they worked? A. Pablo, I guess. MR. HOVIOUS: Don't guess. A. Pablo. Q. But were they always paid by the stick for stripping the tobacco? A. Yes. Q. So did it matter how many hours they worked when they were stripping? A. No. They could work ever how many hours they wanted to. Q. But in terms of when you paid them, did it matter to whoever was paying them how many hours they worked during the stripping? A. I don't know. Q. After the stripping -- okay, ah, when they Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 199 of 219 PageID #: 1093 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Donna S. Heidel, CCR(KY),LCR(TN) Phone 270-726-1497 Fax 270-726-9818 50 were stripping tobacco, ah, did they strip your tobacco separately from Tracy's tobacco? A. Yes. Q. Okay. But was there any indication of -- would they strip your tobacco and Tracy's tobacco on the same day? A. Well, they may get done on one farm of his and then start on mine, yes. It's possible that they finished his or finished mine and started his or started mine but not usually. Q. And through the whole process, do you keep marking, like if you planted your crop next to Tracy's crop, would you have some kind of marker so that you could keep track of whose was what? A. It was different fields. Q. You would plant in different fields? A. Uh-huh (yes). Q. Okay. And then similarly in the barn, did you have to like direct the workers that we were going to keep Bruce's tobacco here and Tracy's tobacco there? A. Yes. MR. HOVIOUS: Object to the form. You're repeating the answers to the previous question in connection with asking the next one. Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 200 of 219 PageID #: 1094 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Donna S. Heidel, CCR(KY),LCR(TN) Phone 270-726-1497 Fax 270-726-9818 51 I'd like to ask you to stop doing that. Q. Who owned the barns where the tobacco was hung? A. Me and my wife. Q. So now, some of the tobacco was hung in barns in Monroe County? A. Yes. Q. Was there tobacco hung in barns in Hart County? A. Yes. Q. And was that barn in Hart County one that you owned with your wife? A. That's one I owned with my wife and Tracy. Q. So Tracy also owns the barn in Hart County with you? A. Yes. Q. Does Tracy own the barn in Monroe County with you? A. No. Q. So how many barns do you own, did you own in 2014? A. I got three there at my house, four really. Q. And then the one in Hart County would make five? A. Well, there's one big barn up there and two Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 201 of 219 PageID #: 1095 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Donna S. Heidel, CCR(KY),LCR(TN) Phone 270-726-1497 Fax 270-726-9818 53 Q. Did you, did Danny Layton have a barn? A. No. Q. Okay. So the crop that you had on Danny Layton's farm, do you remember where it was hung? A. Yes. Q. Where? A. In mine and Tracy's barn in Hart County. MR. HOVIOUS: 11:30 just about on the nose. MS. RAMAKRISHNAN: Okay. We're not finished but we're almost ready for a break. Q. The grading of the tobacco. What equipment is used for -- I'm sorry, what is involved in the grading of tobacco? A. Just pick up the stalk and take off so many leaves and that's one grade, take off so many more leaves and that's another grade, and the rest of the leaves is the third grade. Q. Okay. And before that, how did you determine that the leaves were ready to be lowered and stripped? A. Had to be in case. Q. In case? A. Have moisture in them where they wouldn't shatter. Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 202 of 219 PageID #: 1096 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Donna S. Heidel, CCR(KY),LCR(TN) Phone 270-726-1497 Fax 270-726-9818 54 Q. Is it something that you just touch and know? A. Yes. Q. And who is doing that touching? A. Just ever who was at the barn, Pablo, me, Tracy. Q. Did you -- would you check to see how whether Tracy's plants were ready to be lowered? A. Maybe sometimes. Q. And would Tracy ever check to see if your plants were to be lowered? A. Sometimes. Q. Would you tell the workers that they needed to start lowering plants? A. Sometimes. Q. And did it matter whether it was your plants or Tracy's plants? A. No. Q. So either of you could have told, directed workers to start lowering either group of plants? A. Yes. Q. Okay. After, did anyone come out and check to make sure that the grading was being done correctly? A. Well, Pablo was always at the barn. Tracy would go by and check, and I would go by and check, Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 203 of 219 PageID #: 1097 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Donna S. Heidel, CCR(KY),LCR(TN) Phone 270-726-1497 Fax 270-726-9818 55 and Tyler and Tyson would sometime. Q. Is it really important that they do this part of the work correctly? A. Yes. But it's not no hard job to do it. I mean, you can see the difference literally. Q. Okay. So would you ever see anybody doing it incorrectly? A. Oh, occasionally. Q. And would you tell someone if they needed to -- A. Yes. Q. -- do it differently? A. Yes. Q. Was there any, do you recall any instance in 2014 where some of the tobacco was spoiled? A. No, not spoiled. Once in a while you would have some green leaves. They would throw them out separate. Q. Okay. So someone gave them instructions about throwing out the green leaves? A. Yeah. MR. HOVIOUS: Form. If you would give me a second in between the question and your answer, it would help me. MS. RAMAKRISHNAN: Okay. Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 204 of 219 PageID #: 1098 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Donna S. Heidel, CCR(KY),LCR(TN) Phone 270-726-1497 Fax 270-726-9818 56 Q. Who was giving them instructions about throwing out the green leaves? A. Tracy and myself, Pablo. Q. And when you were supervising their grading of the tobacco, did it matter whether it was your plants that were being graded or Tracy's plants that were being graded? A. No. Q. You checked on all the plants regardless of who they belonged to? A. Yes. Q. Okay. After the grading, they packaged the leaves in balers, correct? A. Right. Q. Okay. Who owns the balers? MR. HOVIOUS: Can we take a lunch break, please? MS. RAMAKRISHNAN: I'm almost done. Like I just want to get through this. MR. HOVIOUS: Like the entire deposition? MS. RAMAKRISHNAN: No, with the baling. BY MS. RAMAKRISHNAN: Q. Okay. So who owns the balers that are in the Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 205 of 219 PageID #: 1099 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Donna S. Heidel, CCR(KY),LCR(TN) Phone 270-726-1497 Fax 270-726-9818 57 barns? A. Me and my wife. Q. Okay. Does Tracy own any of the balers? A. No, I don't think so. Q. Is that true in Hart County also? A. We don't have none up there. Q. So all of the baling was done in Monroe County? A. Yes. Q. Would somebody go and take the stripped tobacco from Hart County and bring it? A. Yes. Q. Who would do that? A. My grandsons most of the time or Michael Boyd or Tracy. Q. Would workers have to go load the -- A. They would load it when they was there. They wouldn't have to make a trip. Q. And was there some distinction during the loading between your plants and Tracy's plants? A. If it was, if we had ended one crop and started another one, there would be a distinction. The trailers would be marked. Q. And these kind of tasks like loading the trucks, is that just incorporated into the piece Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 206 of 219 PageID #: 1100 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Donna S. Heidel, CCR(KY),LCR(TN) Phone 270-726-1497 Fax 270-726-9818 58 rates that they were paid for the work? A. Yes. MR. HOVIOUS: Object to the form. Q. Were they -- was anybody keeping track of their time spent loading vehicles in Hart County? MR. HOVIOUS: That's a good question. THE WITNESS: Answer it? MR. HOVIOUS: Yes, please. A. State it again. Q. Was anybody keeping track of the time spent loading the vehicles in Hart County? A. Pablo. Q. And then so all of the stripped leaves -- were all of the stripped leaves for all of the farms brought all to Monroe County around the same time? MR. HOVIOUS: Object to the form. A. No, not at the same time. Q. But all of that was done just in Monroe County? All of the leaves were ending up in Monroe County in your farm, correct? A. Yes. Q. So what is the process for baling the leaves? A. Well, when they've sold to -- when they're stripped, it's put in a burlap bag. They just pick Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 207 of 219 PageID #: 1101 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Donna S. Heidel, CCR(KY),LCR(TN) Phone 270-726-1497 Fax 270-726-9818 59 the burlap bag up and turn it over in the bale, pull the lever down. It's hydraulic. It mashes it down. That's what a baler is. Q. So and I don't think I asked this, but for the stripping work, what was an average day like for stripping? Like what was the start and end times? MR. HOVIOUS: Objection; asked and answered. Let's take a lunch break. MS. RAMAKRISHNAN: Okay. I'm not finished. MR. HOVIOUS: I didn't ask you if you're finished. He started an hour and a half ago. He's wearing down. I'm hungry. We agreed to do lunch by 11:30. MS. RAMAKRISHNAN: I said if I was ready for a break at 11:30. MR. HOVIUS: Would you like to take a break? THE WITNESS: Yes. BY MS. RAMAKRISHNAN: Q. Could you please just answer the one question and then we'll take a break? MR. HOVIOUS: Well, that's fair. A. What was the question? MS. RAMAKRISHNAN: Could you read Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 208 of 219 PageID #: 1102 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Donna S. Heidel, CCR(KY),LCR(TN) Phone 270-726-1497 Fax 270-726-9818 63 A. No. Q. -- related to the travel reimbursement? A. No. MR. HOVIOUS: Let her finish her question. THE WITNESS: Sir? MR. HOVIOUS: Let her finish her question. Q. So who do you think would have known about the payment of travel reimbursement to workers in 2014? A. My wife. Q. Can you look for Exhibit M in the pile? A. Okay. Q. And actually, before we look at this one, on the travel reimbursement, did you -- was your wife -- strike that. Did you communicate with your wife at all about paying reimbursement to workers for their inbound travel expenses in 2014? A. Did I? Q. Uh-huh (yes). A. No. Q. So now we move to Exhibit M. And what I've handed you is a composite of different pages and documents that have been provided to us. It starts Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 209 of 219 PageID #: 1103 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Donna S. Heidel, CCR(KY),LCR(TN) Phone 270-726-1497 Fax 270-726-9818 64 with Dillard 000128. Do you see that number on the bottom there? A. Yes. Q. Do you mind just flipping through the documents? A. Okay. Q. So if we look at the top one, Dillard 000128, do you recognize this document? A. No. I don't know nothing about this. Q. Have you ever seen one of these before? A. No. Q. Do you know who might know about this document? A. My wife. Q. And were you involved with her processing of wage statements for workers? A. No. Q. Where were the workers housed that worked on your farm in 2014? A. In two different bunk houses. Q. And who owns the bunk houses where they resided? A. Me and my wife. Q. And who provided furniture that was in the bunk houses? Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 210 of 219 PageID #: 1104 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Donna S. Heidel, CCR(KY),LCR(TN) Phone 270-726-1497 Fax 270-726-9818 65 A. Me and my wife. Q. And were you aware that those bunk houses had to be inspected prior to the arrival of H2A workers? A. Yes. Q. Did you -- do you know who organized the inspection of the bunk houses? A. My wife. Q. Were you involved -- were you there when the housing was inspected? A. No. Q. Did you do anything to prepare the housing in advance of the inspection? A. In 2014? Q. '14, uh-huh (yes). A. Yes. Q. What did you do to prepare the housing for the inspection? A. They had to be cleaned up. Q. Okay. Did you hire somebody to clean the housing? A. And appliances bought and put back in. Q. Did you hire someone to clean the housing? A. Yes. Q. And who paid for that service? Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 211 of 219 PageID #: 1105 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Donna S. Heidel, CCR(KY),LCR(TN) Phone 270-726-1497 Fax 270-726-9818 66 A. Me and my wife. Q. Did you -- who paid for the appliances that had to be put in? A. Me and my wife. Q. Were there any appliances that you had from prior years that were still there? A. I think there may have been a refrigerator. Q. And prior to 2014, you had a crew of H2A workers in the housing in 2013, right? A. Yes. Q. Did they cause any damage to the appliances or the equipment in the housing? A. Other than normal use, no. Q. So you just replaced -- did you just replace the appliances because of wear and tear for 2014? A. We didn't -- restate that. Q. Okay. Had you replaced appliances prior to that 2014 workers coming in to stay in the housing? A. Maybe there was a refrigerator that had went bad and we replaced it. I'm not for certain. Q. Do you know who would know what all was done to prepare the housing for the inspection in 2014? A. No. My wife. Q. Were all of these decisions about the housing made between you and your wife? Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 212 of 219 PageID #: 1106 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Donna S. Heidel, CCR(KY),LCR(TN) Phone 270-726-1497 Fax 270-726-9818 67 A. Yes. Q. Was Tracy Dillard involved in making the decisions? A. Somewhat. Q. Were you there when the housing was inspected? A. No. Q. Do you know who was there when the housing was inspected? A. I'm sure Carolyn was and Tracy maybe. Q. So you mentioned the 2013 H2A workers stayed in that housing and they did not cause damage to the housing, correct? A. Yeah. Q. Okay. How was -- how was the crew that came to work on your farm in 2013? MR. HOVIOUS: How what? Q. How did you like the crew that came to work on your farm in 2013? A. They was good workers. Q. So were you happy with the work that they completed? A. That they completed? Q. Uh-huh (yes). A. Yes. Q. Did you invite any of the workers from the Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 213 of 219 PageID #: 1107 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Donna S. Heidel, CCR(KY),LCR(TN) Phone 270-726-1497 Fax 270-726-9818 69 A. Around $2, 1.98 to $2 a pound is what it brought. Q. Do you remember how many pounds you sold? A. No, not off the top of my head, no. Q. Do you have a rough estimate? A. No, I don't. Q. And where -- what do -- where did you deposit the proceeds of the sale of tobacco? A. I don't know. My wife done that. Q. Okay. Do you have an account for your farming operations, a bank account for your farming operations? A. We have a couple accounts. Q. Okay. Do you have an account that is in just your name for your farming operations? A. No. Q. So the accounts that you have for your farming operations, who are the other -- who is the other person that is on that account? A. Well, Tracy can sign a check. My wife can sign a check. Both the grandsons can sign a check. We had it fixed at the bank where they could sign them. Q. But are those, if you have a farming account, is Tyler an account holder with you? Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 214 of 219 PageID #: 1108 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Donna S. Heidel, CCR(KY),LCR(TN) Phone 270-726-1497 Fax 270-726-9818 71 deposited into Tracy's bank account? A. His tobacco was, I guess. Q. Okay. And where were the proceeds of the sale of your tobacco deposited? A. In my account. Q. Is that an account you hold by yourself? A. Well, it's my account. Q. Do you have a co -- is there someone else who owns that account with you? A. Not that I know of. Tracy, both the boys, Carolyn can sign a check for me. Q. Would you know whose names are on the top of the check where that account, where you deposited your proceeds? A. Mine and Carolyn's. Q. Was the ownership structure of your farm in 2014 the same as it was in 2013? A. Say that again. Q. Was the ownership structure of your farm in 2014 the same as it was in 2013? A. Yes. Q. And was it the same in 2012? A. Yes. Q. Was it the same in 2011? A. Yes. Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 215 of 219 PageID #: 1109 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Donna S. Heidel, CCR(KY),LCR(TN) Phone 270-726-1497 Fax 270-726-9818 72 Q. And the way you make decisions regarding your farming operations, was it the same in 2013 as it was in 2014? A. Yes. Q. Was it the same in 2012? A. Yes. Q. Was the way that Carolyn took care of the payroll functions and bills the same in 2014 as it was in 2013? A. Yes. Q. Was it the same in 2012? A. Yes. Q. Do you recall if any workers were fired in the H2A crew in 2014? A. Yes. Q. Can you describe who was fired and why? A. I don't remember their names. But I seen them on the paper while ago. Pablo and Martin and seven or eight other workers come to me and Tracy was out of town. And these two workers was, of course, living in the bunk house and they was drinking three-fourths of the night and playing loud music and the other workers could not go to sleep. And they had been told, Pablo and the other workers had told them numerous times that they had to have Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 216 of 219 PageID #: 1110 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Donna S. Heidel, CCR(KY),LCR(TN) Phone 270-726-1497 Fax 270-726-9818 73 their sleep, stop the partying and they wouldn't do it. So I don't know whether you say I fired them or what, but I called Ray Wilcoxson and he come down and he talked to them and they went home. Q. And did Ray Wilcoxson tell you that you had to do certain things in order to before they could go home? A. Well, we had to buy a bus ticket and give them lunch money. Of course, had to pay them for the work that they had done up to that time. That was in the middle of the week, you know. It was before payday. And they had to sign some papers. But now, I don't know what. Q. Did you have help to get all of the return bus trip, the last pay, the paperwork that they had to sign, did you have somebody to help you get all of that ready for the workers? A. My wife did. Q. And was Tracy involved in that decision too? A. No. He was out of town. Q. Would, if you weren't there, would Carolyn have had the authority to fire workers in that situation? A. I don't know whether she would or not. I Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 217 of 219 PageID #: 1111 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Donna S. Heidel, CCR(KY),LCR(TN) Phone 270-726-1497 Fax 270-726-9818 76 Q. What was the reason the workers, that the 2014 workers that we've been talking about, what was the reason that they left? A. The job was done. Q. So there was -- nobody was -- the workers didn't come to you and say I'm ready to go? A. I don't know. There may have been two or three that left earlier, you know, that was ready to go earlier. I just don't remember. MS. RAMAKRISHNAN: Okay. Now I'm really done. * * * (The taking of the foregoing deposition was concluded at 2:20 p.m.) SIGNATURE NOT REQUESTED Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 218 of 219 PageID #: 1112 Donna S. Heidel, CCR(KY),LCR(TN) Phone 270-726-1497 Fax 270-726-9818 77 STATE OF KENTUCKY COUNTY OF LOGAN C E R T I F I C A T I O N I, Donna S. Heidel, Notary Public in and for the State of Kentucky at Large do hereby certify that the foregoing deposition of BRUCE DILLARD was taken by me at the time, place, and for the purpose mentioned in the caption; that same was taken by me in machine shorthand and transcribed by computer-aided transcription; that no request was made by counsel for any party that the deposition be submitted to the witness for reading and signature; and the foregoing pages of typewritten matter contain a true, correct, and complete copy of my said notes to the best of my ability. Further I state that I am not related to any parties involved or counsel of record and have no financial interest in the outcome of said action. Given under my hand this 24th day of September, 2016. DONNA S. HEIDEL, Court Reporter and Notary Public in and for the State of Kentucky at Large My commission expires: 6-20-2018 Case 1:15-cv-00069-GNS-HBB Document 89-3 Filed 06/02/17 Page 219 of 219 PageID #: 1113 EXHIBIT B Case 1:15-cv-00069-GNS-HBB Document 89-4 Filed 06/02/17 Page 1 of 12 PageID #: 1114 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF KENTUCKY BOWLING GREEN DIVISION MARTIN RICO MURILLO, et al. ) ) Plaintiffs ) ) vs. ) Civil Action No.:1:15-cv-00069-GNS-HBB ) TRACY DILLARD, BRUCE DILLARD, and CAROLYN DILLARD ) ) ) ) Defendants ) DEFENDANT, TRACY DILLARD’S ANSWERS TO PLAINTIFFS’ FIRST SET OF REQUESTS FOR ADMISSIONS REQUESTS FOR ADMISSION REQUEST FOR ADMISSION NO. 1 Please admit that, while employed by you during the 2014-2015 tobacco season, each Plaintiff was lawfully admitted to the United States on a temporary work visa pursuant to 8 U.S.C. § 1101(a)(15)(H)(ii)(a). (Compare Pls.’ 2nd Am. Compl. ¶ 9 with Defs.’ Answer to 2nd Am. Compl. ¶ 9.) RESPONSE: Defendant objects to this Request on the grounds that it seeks a legal conclusion. Without waiving this objection and subject thereto, Defendant states that Plaintiffs informed Defendant and provided proof indicating they were lawfully admitted to the United States. REQUEST FOR ADMISSION NO. 2 Please admit that, claiming a lack of available U.S. agricultural workers in your area of operation, you filed two applications to employ temporary foreign workers through the H-2A program for your 2014-2015 tobacco season. (Compare Pls.’ 2nd Am. Compl. ¶ 17 with Defs.’ Answer to 2nd Am. Compl. ¶ 17.) RESPONSE: Admit. Case 1:15-cv-00069-GNS-HBB Document 89-4 Filed 06/02/17 Page 2 of 12 PageID #: 1115 REQUEST FOR ADMISSION NO. 3 Please admit that your initial temporary labor certification application for the 2014-2015 season sought admission of eight workers for employment from May 10, 2014 to February 28, 2015. (Compare Pls.’ 2nd Am. Compl. ¶ 18 with Defs.’ Answer to 2nd Am. Compl. ¶ 18.) RESPONSE: Defendant admits the application sought 8 workers for the intended period of 5/10/14-2/28/15. REQUEST FOR ADMISSION NO. 4 Please admit that your initial temporary labor certification application for the 2014-2015 season was anticipated to provide workers with an average of 40 hours of employment per week. (Compare Pls.’ 2nd Am. Compl. ¶ 18 with Defs.’ Answer to 2nd Am. Compl. ¶ 18.) RESPONSE: Admit. REQUEST FOR ADMISSION NO. 5 Please admit that you later submitted a second temporary labor certification application for the 2014-2015 season seeking admission of 22 additional workers for employment from July 15, 2014 to February 28, 2015. (Compare Pls.’ 2nd Am. Compl. ¶ 19 with Defs.’ Answer to 2nd Am. Compl. ¶ 19.) RESPONSE: Defendant admits the application sought 22 workers for the intended period of 4/15/14-2/28/15. REQUEST FOR ADMISSION NO. 6 Please admit that your second temporary labor certification application for the 2014-2015 season anticipated providing workers with an average of 40 hours per week. (Compare Pls.’ 2nd Am. Compl. ¶ 19 with Defs.’ Answer to 2nd Am. Compl. ¶ 19.) RESPONSE: Admit. REQUEST FOR ADMISSION NO. 7 Please admit that your first temporary labor certification application for the 2014-2015 season included a job offer, purporting to comply with applicable H–2A regulations, that was used in the recruitment of H-2A workers, including Plaintiffs Pantaleon Alvarez Cervantes, Ageo Avelino Naez, Hector Santiago Bautista, Agustin Andres Juana, J. Guadalupe Avelino Naiz, and Zenobio Cervantes Gumecindo. (Compare Pls.’ 2nd Am. Compl. ¶¶ 20, 26 with Defs.’ Answer to 2nd Case 1:15-cv-00069-GNS-HBB Document 89-4 Filed 06/02/17 Page 3 of 12 PageID #: 1116 2nd Am. Compl. ¶ 22 with Defs.’ Answer to 2nd Am. Compl. ¶ 22.) RESPONSE: Defendant objects to this Request on the grounds that it seeks a legal conclusion. Without waiving this objection, Defendant states that the clearance order is a form provided by the U.S. DOL and incorporates the information contained therein. REQUEST FOR ADMISSION NO. 12 Please admit that your second temporary labor certification application in 2014, including your second clearance order, incorporated USDOL regulations at 20 C.F.R. § 655 Subpart B. (Compare Pls.’ 2nd Am. Compl. ¶ 22 with Defs.’ Answer to 2nd Am. Compl. ¶ 22.) RESPONSE: Defendant objects to this Request on the grounds that it seeks a legal conclusion. Without waiving this objection, Defendant states that the clearance order is a form provided by the U.S. DOL and incorporates the information contained therein. REQUEST FOR ADMISSION NO. 13 Please admit that in 2014 you recruited 30 H-2A workers from Mexico to fill the positions offered in your clearance orders for the 2014-2015 tobacco season. (Compare Pls.’ 2nd Am. Compl. ¶ 24 with Defs.’ Answer to 2nd Am. Compl. ¶ 24.) RESPONSE: Denied. Defendant retained the services of Ray Wilcoxson to recruit and/or obtain H-2A workers from Mexico to fill the positions offered in Defendant’s clearance orders for the 2014-2015. REQUEST FOR ADMISSION NO. 14 Please admit that in 2014 you recruited each Plaintiff to fill the positions offered in your clearance orders for the 2014-2015 tobacco season. (Compare Pls.’ 2nd Am. Compl. ¶ 24 with Defs.’ Answer to 2nd Am. Compl. ¶ 24.) RESPONSE: Denied. Defendant retained the services of Ray Wilcoxson to recruit and/or obtain H-2A workers from Mexico to fill the positions offered in Defendant’s clearance orders for the 2014-2015. Plaintiffs assert to have been recruited and upon information and belief, Defendant states that Plaintiffs filled the positions. REQUEST FOR ADMISSION NO. 15 Please admit that Plaintiffs Pantaleon Alvarez Cervantes, Ageo Avelino Naez, Hector Santiago Bautista, Agustin Andres Juana, J. Guadalupe Avelino Naiz, and Zenobio Cervantes Gumecindo were hired by you pursuant to your first temporary labor certification application in 2014 and were employed by you to work in your tobacco fields from May 2014 to February 2015. Case 1:15-cv-00069-GNS-HBB Document 89-4 Filed 06/02/17 Page 4 of 12 PageID #: 1117 (Compare Pls.’ 2nd Am. Compl. ¶ 37 with Defs.’ Answer to 2nd Am. Compl. ¶ 37.) RESPONSE: Denied. REQUEST FOR ADMISSION NO. 16 Please admit that Plaintiffs Martin Rico Murillo, Jose Isabel Pablo Velazquez, Esteban Marcos Reyes, Juan Reyes Serna, Pablo Jaguada Lopez, Agapito Manuel Perez, Ernesto Nepamuceno Epifanio, Pedro Nepamuceno Epifanio, Antonio Gonzalez Hernandez, Eleazar Manuel Otero, Cain Gonzalez Covarrubias, Hector Gonzalez Hernandez, Alberto Covarrubias Gonzalez, Mario Lorenzo Chavez, Daniel Gonzalez Cobarruvias, Jose Hernandez Marcos, Julio Rubio Cabrera, and Nau Gonzalez Mendoza were hired by you pursuant to your second temporary labor certification application in 2014 and were employed by you to work in Defendants’ tobacco fields from August 2014 to February 2015. (Compare Pls.’ 2nd Am. Compl. ¶ 38 with Defs.’ Answer to 2nd Am. Compl. ¶ 38.) RESPONSE: Denied. REQUEST FOR ADMISSION NO. 17 Please admit that while working for you in 2014, Plaintiffs were employed by you within the meaning of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 203(g). (Compare Pls.’ 2nd Am. Compl. ¶ 49 with Defs.’ Answer to 2nd Am. Compl. ¶ 49.) RESPONSE: Defendant objects to this Request on the grounds that it seeks a legal conclusion. Without waiving this objection, Defendant admits that he employed Plaintiffs. REQUEST FOR ADMISSION NO. 18 Please admit that while working for you in 2015, Plaintiffs were employed by you within the meaning of the FLSA, 29 U.S.C. § 203(g). (Compare Pls.’ 2nd Am. Compl. ¶ 49 with Defs.’ Answer to 2nd Am. Compl. ¶ 49.) RESPONSE: Defendant objects to this Request on the grounds that it seeks a legal conclusion. Without waiving this objection, Defendant admits that he employed some of the named Plaintiffs in 2015. REQUEST FOR ADMISSION NO. 19 Please admit that while working for you in 2014, each Plaintiff was your “employee” within the meaning of the FLSA, 29 U.S.C. § 203(e). (Compare Pls.’ 2nd Am. Compl. ¶ 50 with Defs.’ Answer to 2nd Am. Compl. ¶ 50.) RESPONSE: Defendant objects to this Request on the grounds that it seeks a legal Case 1:15-cv-00069-GNS-HBB Document 89-4 Filed 06/02/17 Page 5 of 12 PageID #: 1118 conclusion. Without waiving this objection, Defendant admits that he employed Plaintiffs. REQUEST FOR ADMISSION NO. 20 Please admit that while working for you in 2015, each Plaintiff was your “employee” within the meaning of the FLSA, 29 U.S.C. § 203(e). (Compare Pls.’ 2nd Am. Compl. ¶ 50 with Defs.’ Answer to 2nd Am. Compl. ¶ 50.) RESPONSE: Defendant objects to this Request on the grounds that it seeks a legal conclusion. Without waiving this objection, Defendant admits that he employed some of the named Plaintiffs in 2015. REQUEST FOR ADMISSION NO. 21 Please admit that while working for you in 2014, each Plaintiff was your “employee” within the meaning of 20 C.F.R. § 655.103(b). (Compare Pls.’ 2nd Am. Compl. ¶ 51 with Defs.’ Answer to 2nd Am. Compl. ¶ 51.) RESPONSE: Defendant objects to this Request on the grounds that it seeks a legal conclusion. Without waiving this objection, Defendant admits that he employed Plaintiffs. REQUEST FOR ADMISSION NO. 22 Please admit that while working for you in 2014, each Plaintiff was an “H-2A worker” within the meaning of 20 C.F.R. § 655.103(b). (Compare Pls.’ 2nd Am. Compl. ¶ 51 with Defs.’ Answer to 2nd Am. Compl. ¶ 51.) RESPONSE: Defendant objects to this Request on the grounds that it seeks a legal conclusion. Without waiving this objection, Defendant admits that the Plaintiffs were H- 2A workers. REQUEST FOR ADMISSION NO. 23 Please admit that while working for you in 2015, each Plaintiff was your “employee” within the meaning of 20 C.F.R. § 655.103(b). (Compare Pls.’ 2nd Am. Compl. ¶ 51 with Defs.’ Answer to 2nd Am. Compl. ¶ 51.) RESPONSE: Defendant objects to this Request on the grounds that it seeks a legal conclusion. Without waiving this objection, Defendant affirmatively states that each Plaintiff did not work in 2015. REQUEST FOR ADMISSION NO. 24 Case 1:15-cv-00069-GNS-HBB Document 89-4 Filed 06/02/17 Page 6 of 12 PageID #: 1119 Please admit that while working for you in 2015, each Plaintiff was an “H-2A worker” within the meaning of 20 C.F.R. § 655.103(b). (Compare Pls.’ 2nd Am. Compl. ¶ 51 with Defs.’ Answer to 2nd Am. Compl. ¶ 51.) RESPONSE: Defendant objects to this Request on the grounds that it seeks a legal conclusion. Without waiving this objection, Defendant states that each Plaintiff did not work in 2015. REQUEST FOR ADMISSION NO. 25 Please admit that in 2014 you were an “employer” of each Plaintiff within the meaning of the FLSA, 29 U.S.C. § 203(d). (Compare Pls.’ 2nd Am. Compl. ¶ 52 with Defs.’ Answer to 2nd Am. Compl. ¶ 52.) RESPONSE: Defendant objects to this Request on the grounds that it seeks a legal conclusion. Without waiving this objection, Defendant admits that he employed Plaintiffs. REQUEST FOR ADMISSION NO. 26 Please admit that in 2014 you were an “employer” of each Plaintiff within the meaning of 20 C.F.R. § 655.103(b). (Compare Pls.’ 2nd Am. Compl. ¶ 53 with Defs.’ Answer to 2nd Am. Compl. ¶ 53.) RESPONSE: Defendant objects to this Request on the grounds that it seeks a legal conclusion. Without waiving this objection, Defendant admits that he employed Plaintiffs. REQUEST FOR ADMISSION NO. 27 Please admit that in 2015 you were an “employer” of each Plaintiff within the meaning of the FLSA, 29 U.S.C. § 203(d). (Compare Pls.’ 2nd Am. Compl. ¶ 52 with Defs.’ Answer to 2nd Am. Compl. ¶ 52.) RESPONSE: Denied. REQUEST FOR ADMISSION NO. 28 Please admit that in 2015 you were an “employer” of each Plaintiff within the meaning of 20 C.F.R. § 655.103(b). (Compare Pls.’ 2nd Am. Compl. ¶ 53 with Defs.’ Answer to 2nd Am. Compl. ¶ 53.) RESPONSE: Denied. Case 1:15-cv-00069-GNS-HBB Document 89-4 Filed 06/02/17 Page 7 of 12 PageID #: 1120 2015 season pursuant to your second alien labor certification application in 2014 included the contents required by law to be contained in all H-2A job offers as set forth in the regulations governing Plaintiffs’ visas, 20 C.F.R. § 655.122. (Compare Pls.’ 2nd Am. Compl. ¶ 57 with Defs.’ Answer to 2nd Am. Compl. ¶ 57.) RESPONSE: Defendant objects to this Request on the grounds that it seeks a legal conclusion. Without waiving this objection, Defendant admits that he complied with the law. REQUEST FOR ADMISSION NO. 39 Please admit that the terms of work offered by you to Plaintiffs whom you employed in the 2014- 2015 season pursuant to your first alien labor certification application in 2014 included the legally required assurance of obligations of H-2A employers as set forth in 20 C.F.R. § 655.135. (Compare Pls.’ 2nd Am. Compl. ¶ 57 with Defs.’ Answer to 2nd Am. Compl. ¶ 57.) RESPONSE: Defendant objects to this Request on the grounds that it seeks a legal conclusion. Without waiving this objection, Defendant admits that he complied with the law. REQUEST FOR ADMISSION NO. 40 Please admit that the terms of work offered by you to Plaintiffs whom you employed in the 2014- 2015 season pursuant to your second alien labor certification application in 2014 included the legally required assurance of obligations of H-2A employers as set forth in 20 C.F.R. § 655.135. (Compare Pls.’ 2nd Am. Compl. ¶ 57 with Defs.’ Answer to 2nd Am. Compl. ¶ 57.) RESPONSE: Defendant objects to this Request on the grounds that it seeks a legal conclusion. Without waiving this objection, Defendant admits that he complied with the law. REQUEST FOR ADMISSION NO. 41 Please admit that your work contracts with Plaintiffs offered them wages equal to the highest of the Adverse Effect Wage Rate (“AEWR”), the prevailing hourly wage rate, the prevailing piece- rate, or the FLSA minimum wage rate. (Compare Pls.’ 2nd Am. Compl. ¶ 58 with Defs.’ Answer to 2nd Am. Compl. ¶ 58.) RESPONSE: Defendant affirmatively states that he offered wages equal to or more than the highest of Adverse Effect Wage Rate (“AEWR”), the prevailing hourly wage rate, the prevailing piece- rate, or the FLSA minimum wage rate. REQUEST FOR ADMISSION NO. 42 Please admit that the AEWR that your work contracts with Plaintiffs offered them was $10.10 per Case 1:15-cv-00069-GNS-HBB Document 89-4 Filed 06/02/17 Page 8 of 12 PageID #: 1121 hour in Kentucky from January 7, 2014 to December 18, 2014. (Compare Pls.’ 2nd Am. Compl. ¶ 58 with Defs.’ Answer to 2nd Am. Compl. ¶ 58.) RESPONSE: Admit. REQUEST FOR ADMISSION NO. 43 Please admit that the AEWR that your work contracts with Plaintiffs offered them was $10.28 per hour in Kentucky from December 19, 2014 through the end of the contract. (Compare Pls.’ 2nd Am. Compl. ¶ 58 with Defs.’ Answer to 2nd Am. Compl. ¶ 58.) RESPONSE: Denied. Defendants lacks sufficient knowledge to admit or deny. REQUEST FOR ADMISSION NO. 44 Please admit that your work contracts with Plaintiffs offered them payment weekly. (Compare Pls.’ 2nd Am. Compl. ¶ 58 with Defs.’ Answer to 2nd Am. Compl. ¶ 58.) RESPONSE: Admit. REQUUEST FOR ADMISSION NO. 45 Please admit that your work contracts with Plaintiffs offered them payment when wages were due. (Compare Pls.’ 2nd Am. Compl. ¶ 58 with Defs.’ Answer to 2nd Am. Compl. ¶ 58.) RESPONSE: Denied. Defendants lacks sufficient knowledge to admit or deny. REQUEST FOR ADMISSION NO. 46 Please admit that your work contracts with each Plaintiff offered him a guaranteed minimum amount of work or wages for 3/4 of the period running from his first workday to the end date specified in the clearance order. (Compare Pls.’ 2nd Am. Compl. ¶ 58 with Defs.’ Answer to 2nd Am. Compl. ¶ 58.) RESPONSE: Admit in part; however, the guarantee could be voided the plaintiffs’ conduct. REQUEST FOR ADMISSION NO. 47 Please admit that your work contracts with Plaintiffs offered them housing, at no cost to the workers, that met DOL Occupational Safety and Health Administration migrant housing standards, 29 C.F.R. § 1910.142. (Compare Pls.’ 2nd Am. Compl. ¶ 58 with Defs.’ Answer to Case 1:15-cv-00069-GNS-HBB Document 89-4 Filed 06/02/17 Page 9 of 12 PageID #: 1122 2nd Am. Compl. ¶ 58.) RESPONSE: Admit. REQUEST FOR ADMISSION NO. 48 Please admit that your work contract with each Plaintiff offered him maintenance of accurate and adequate records with respect to his earnings, including field tally records, supporting summary payroll records, records showing the nature and amount of work performed, the number of hours of work offered each day by you, the hours actually worked each day by him, the time he began and ended each workday, the rate of pay, his earnings each pay period, his home address, and the amount of and reasons for any and all deductions taken from his wages. (Compare Pls.’ 2nd Am. Compl. ¶ 58 with Defs.’ Answer to 2nd Am. Compl. ¶ 58.) RESPONSE: Deny. REQUEST FOR ADMISSION NO. 49 Please admit that your work contracts with Plaintiffs offered them the availability of earnings records for inspection and transcription by Plaintiffs and their representatives within 72 hours, upon proper request. (Compare Pls.’ 2nd Am. Compl. ¶ 58 with Defs.’ Answer to 2nd Am. Compl. ¶ 58.) RESPONSE: Deny. REQUEST FOR ADMISSION NO. 50 Please admit that your work contract with each Plaintiff offered to provide him with pay records with his total earnings for the pay period, his hourly rate and piece rate of pay, the hours of employment offered to him, the hours actually worked by him, an itemization of all deductions made from his wages, the units produced daily if piece rates are used, the beginning and ending dates of the pay period, and the employer’s name, address and federal employer identification number. (Compare Pls.’ 2nd Am. Compl. ¶ 58 with Defs.’ Answer to 2nd Am. Compl. ¶ 58.) RESPONSE: Admit. REQUEST FOR ADMISSION NO. 51 Please admit that your work contract with each Plaintiff offered him reimbursement, at the 50%- point of the contract’s term, to him of the reasonable costs of transportation and subsistence incurred by him in traveling from his home in Mexico to your farm in Kentucky. (Compare Pls.’ 2nd Am. Compl. ¶ 58 with Defs.’ Answer to 2nd Am. Compl. ¶ 58.) Case 1:15-cv-00069-GNS-HBB Document 89-4 Filed 06/02/17 Page 10 of 12 PageID #: 1123 Respectfully submitted, /s/ R. Gregg Hovious R. Gregg Hovious ghovious@middletonlaw.com Loren T. Prizant lprizant@middletonlaw.com MIDDLETON REUTLINGER PLLC 401 S. Fourth St., Ste. 2600 Louisville, KY 40202 Telephone: (502) 625-2850 Facsimile: (502) 584-1950 CERTIFICATE OF SERVICE I hereby certify that on this the 26th day of May, 2016, I sent this document via email to the following counsel of record for Plaintiffs: Briana Beltran bbeltran@trla.org Caitlin Berberich Tennessee Bar No. 025780 cberberich@trla.org SOUTHERN MIGRANT LEGAL SERVICES A PROJECT OF TEXAS RIOGRANDE LEGAL AID, INC. 311 Plus Park Blvd., Ste. 135 Nashville, TN 37217 Telephone: (615) 750-1200 Facsimile: (615) 366-3349 Douglas L. Stevick Missouri Bar No. 65684 dstevick@trla.org TEXAS RIOGRANDE LEGAL AID, INC. 5439 Lindenwood Ave. St. Louis, MO 63109 Telephone: (314) 449-5161 Ms. Lakshmi Ramakrishnan lramakrishnan@trla.org Farmworker & Employment Teams Texas RioGrande Legal Aid, Inc. 300 South Texas Blvd. Weslaco, TX 78596 Tel. (956) 447-4850 Fax. (956) 968-8823 Case 1:15-cv-00069-GNS-HBB Document 89-4 Filed 06/02/17 Page 11 of 12 PageID #: 1124 McKenzie Cantrell Kentucky Bar No. 94897 mckenzie@kyequaljustice.org KENTUCKY EQUAL JUSTICE CENTER 455 S. Fourth St., Ste. 1071 Louisville, KY 40202 Telephone: (502) 333-6019 Fascimile: (502) 416-0022 ATTORNEYS FOR PLAINTIFFS /s/ R. Gregg Hovious Counsel for Defendants Case 1:15-cv-00069-GNS-HBB Document 89-4 Filed 06/02/17 Page 12 of 12 PageID #: 1125
