Perez v. Diamond Kip's, Inc. et al

Filing 18

CONSENT JUDGMENT AND INJUNCTION re: 15 Motion for Order, by Magistrate Judge Kathleen M. Tafoya on 7/8/14. (Attachments: # 1 Exhibit A to Consent Judgment)(sgrim)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:14-cv-00468
THOMAS E. PEREZ, SECRETARY OF LABOR,
UNITED STATES DEPARTMENT OF LABOR,
Plaintiff,
v.
DIAMOND KIP’S INC., d/b/a ALPINE VALLEY SERVICES,
and TIMOTHY RIGGINS, individually,
Defendants.

CONSENT JUDGMENT AND INJUNCTION

Plaintiff, THOMAS E. PEREZ, the Secretary of Labor, United States Department of
Labor (“Plaintiff”), having filed his Complaint and Defendants, having appeared by counsel, and
without admitting to any allegations in the Complaint, agree to the entry of this Consent
Judgment and Injunction;
NOW, therefore, upon motion of Plaintiff, and for cause shown, it is hereby:
ORDERED, ADJUDGED, AND DECREED, pursuant to section 17 of the Fair Labor
Standards Act of 1938, as amended, 29 U.S.C. § 201 et seq. (the “FLSA”), 29 U.S.C. § 217, that
Defendants, their officers, agents, servants, employees, and all persons in active concert or
participation with them are hereby permanently enjoined and restrained from violating the
provisions of the FLSA in any of the following manners:

I
A.

Defendant Timothy Riggins, individually, acted directly or indirectly in the

interest of Diamond Kip’s Inc. d/b/a Alpine Valley Services (“AVS”) (collectively the
“Defendants”) and thereby is considered to be an “employer” under section 3(d) of the FLSA
and is individually responsible for the obligations contained in this Consent Judgment and
Injunction.
B.

Without admission of any violation of these provisions, Defendants agree that

they shall not, contrary to sections 6 and 15(a)(2) of the FLSA, pay any of their employees, who
in any workweek are engaged in commerce or in the production of goods for commerce, within
the meaning of the FLSA, wages at a rate less than $7.25 per hour (or at a rate less than such
other applicable minimum rate as may hereafter be established by amendment to the FLSA);
C.

Without admission of any violation of these provisions, Defendants agree that

they shall not, contrary to sections 7 and 15(a)(2) of the FLSA, employ any non-exempt
employees in commerce or in the production of goods for commerce or in an enterprise engaged
in commerce or the production of goods for commerce, within the meaning of the FLSA, for
workweeks longer than forty (40) hours without compensating such non-exempt employees for
their employment in excess of forty (40) hours per workweek at rates not less than one and onehalf times the regular rates at which they are employed.
D.

Without admission of any violation of these provisions, Defendants agree that

they shall not, contrary to sections 11(c) and 15(a)(5) of the FLSA, fail to make, keep, and
preserve adequate and accurate records of its non-exempt employees, and of the wages, hours,
and other conditions and practices of employment maintained by Defendants as prescribed by the
regulations issued and from time to time amended pursuant to section 11(c) of the FLSA (29

C.F.R. Part 516). Defendants shall make such records available at all reasonable times to
representatives of the Plaintiff.
E.

Without admission of any violation of these provisions, Defendants agree that

they shall not, contrary to section 15(a)(3) of the FLSA, discharge or in any other manner
discriminate against any employee because such employee has filed any complaint or instituted
or caused to be instituted any proceeding under or related to the FLSA, or has testified or us
about to testify in any such proceeding, or has served or is about to serve on an industry
committee.
II – FLSA Monetary Relief
FURTHER, JUDGMENT IS HEREBY ENTERED, pursuant to section 16(c) of the
FLSA, 29 U.S.C. § 216(c) in favor of Plaintiff and against Defendants in the total amount of
$16,052.04, as follows:
A.

Without admission of any violation of these provisions, Defendants shall pay the

sum of $8,026.02 which represents back wages for the period from February 23, 2012 to
February 8, 2013, to the present and former employees named and in the amounts set forth in
Exhibit A, attached hereto and made a part hereof.
B.

Without admission of any violations of these provisions, Defendants shall further

pay to an equivalent amount as liquidated damages of $8,026.02, which constitutes additional
settlement, and not an admission of liability, to present and former employees for the period
from February 23, 2012 to February 8, 2013, as set forth in Exhibit A, attached hereto and
made a part hereof.

C.

Without admission of any violation of these provisions, Defendants shall deliver

to each employee named in “Exhibit A,” no later than 10 days from the date the Court enters this
Consent Judgment and Injunction, a check in the total amount of back wages and liquidated
damages due the employee as indicated next to his or her name, less deductions from back wages
for the employee’s share of social security, Federal income tax and State income tax, and the
amount owed in liquidated damages. The deductions from the amounts indicated for each
employee for social security, Federal income tax and State income tax shall be paid by the
employer to the appropriate Federal and State revenue authorities and appropriate proof of such
payments shall be furnished to the Secretary by the employer. At that time, the employer shall
provide preliminary back wage evidence to the U.S. Department of Labor, Wage and Hour
Division, at 1999 Broadway, Suite 710, Denver, CO , 80202. Preliminary back wage evidence
will consist of a report that lists the employees’ names, check numbers, gross and net amounts
paid, employees’ address, and social security numbers.
D.

No later than 60 days from the date the Court enters this Consent Judgment and

Injunction, Defendants shall send Plaintiff the following proofs of payment for each employee: a
copy of the cancelled check (front and back) for each employee.
E.

No later than 90 days from the date the Court enters this Consent Judgment and

Injunction, Defendants shall deliver a check made payable to “Wage and Hour Division –
Labor,” delivered to U.S. Department of Labor – Wage and Hour Division, Wage and Hour
Regional Office, 525 S. Griffin St, Suite 800, Dallas, TX 75202 (noting “AVS-Denver DO” on
the check) for the total net amount of any checks for back wages and liquidated damages which
cannot be distributed to identified employees in Exhibit A, or to their estates if that be necessary

because of inability of the parties to locate the proper persons, or because of such person’s
refusal to accept such sums.
F.

Plaintiff will attempt to locate the named employees and disburse the money.

Any monies which have not been disbursed after three years, because of the inability to locate
the proper persons or because of their refusal to accept payment, shall be deposited into the
Treasury of the United States as miscellaneous receipts. Defendants remain responsible for
paying his share of any applicable taxes to the appropriate State and Federal Revenue authorities.
G.

Defendants shall not request, solicit, suggest or coerce, directly or indirectly, any

employee to return or to offer to return to the Defendants or to someone else for the Defendants,
any money in the form of cash, check or in any other form, for wages previously due or to
become due in the future to said employees under the provisions of this judgment or the FLSA;
nor shall Defendants accept, or receive from any employee, either directly or indirectly, any
money in the form of cash, check or any other form for wages heretofore or hereafter paid to said
employee under the provisions of this judgment or the FLSA; nor shall Defendants discharge or
in any other manner discriminate, nor solicit or encourage anyone else to discriminate against
any such employee because such employee has received or retained money due from the
Defendants under the provisions of this judgment or the FLSA.

III– Miscellaneous Provisions
A.

By entering into this Consent Judgment and Injunction, the United States

Department of Labor does not waive its right to conduct future investigations under the and to
take appropriate enforcement action with respect to any past, present, or future violations

disclosed by such investigations, including, but not limited to, assessment of civil money
penalties.
B.

FURTHER, it is agreed by the parties herein and hereby ORDERED that each

party bear its own fees and other expenses incurred by such party in connection with any stage of
this proceeding to date with no costs, including, but not limited to, any costs referenced under the
Equal Access to Justice Act, as amended.
DATED

Adobe Date Stamp
Jul 08, 2014

UNITED STATES DISTRICT COURT JUDGE
XXXXXXXXXXXXXXXXXXXXXXXXXXXXX
Kathleen M. Tafoya
United States Magistrate Judge

Entry of the foregoing judgment and injunction is hereby consented to:

FOR THE SECRETARY OF LABOR:
M. PATRICIA SMITH
Solicitor of Labor
JAMES E. CULP
Regional Solicitor
JOHN RAINWATER
Associate Regional Solicitor

/s/ Lydia Tzagoloff
Lydia Tzagoloff
Senior Trial Attorney

DATED: June 9, 2014

Office of the Solicitor
U.S. Department of Labor
1244 Speer Boulevard, Suite 515
Denver, CO 80204
The undersigned represents he or she is the person named below and has the authority to sign
this document on behalf of the entity named and consents to the entry of this Consent Judgment
and Injunction on behalf of each named defendant herein.

FOR THE DEFENDANT:
/s/ Timothy Riggins*
Diamond Kip’s Inc., d/b/a Alpine Valley Services

DATED: June 9, 2014

By: Timothy Riggins
Its: Owner

/s/ Timothy Riggins*
Timothy Riggins, an individual

DATED: June 9, 2014

*Original signatures on file with the Plaintiff and will be attached as an exhibit.