Echon et al v. Sackett et al
Filing
116
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE that 106 MOTION for Summary Judgment filed by Justin Echon, Maribel Echon, Esmeraldo Villanueva Echon, Jr. be GRANTED IN PART and DENIED IN PART. By Magistrate Judge Nina Y. Wang on 9/20/2017. (Attachments: # 1 - (7) Unpublished case law) (nywlc1)
Mojsilovic v. Oklahoma ex rel. Board of Regents for the..., Not Reported in...
2015 WL 1542236, 24 Wage & Hour Cas.2d (BNA) 847
2015 WL 1542236
United States District Court,
W.D. Oklahoma.
Danijela MOJSILOVIC and
Aleksandar Mojsilovic, Plaintiffs,
v.
State of OKLAHOMA ex rel. The BOARD
OF REGENTS FOR THE UNIVERSITY
OF OKLAHOMA, et al., Defendants.
No. CIV–14–886–R.
|
Signed April 7, 2015.
Attorneys and Law Firms
George S. Freedman, Sarah S. Clutts, Lester Loving &
Davies PC, Edmond, OK, for Plaintiffs.
Eric A. Moen, Gus H. Buthman, Shawnae E. Robey,
University of Oklahoma Office of Legal Counsel,
Norman, OK, Jason S. Boulette, Joshua W. Solberg,
Spencer F. Smith, Steven H. Garrett, Boulette & Golden
LLP, Austin, TX, Heidi J. Long, James E. Warner, III,
Holladay Chilton & Degiusti, Oklahoma City, OK, for
Defendants.
AMENDED ORDER 1
DAVID L. RUSSELL, District Judge.
*1 This matter comes before the Court on the Motion to
Dismiss, filed by Defendant William Hildebrand pursuant
to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6).
(Doc. No. 21). Plaintiffs responded in opposition to the
motion. Having considered the parties' submissions, the
Court finds as follows.
Plaintiffs filed a Complaint asserting they are Serbian
nationals hired by the University to serve as research
assistants at the Health Sciences Center. Complaint ¶ 1.
Plaintiffs allege Defendant Hildebrand is an employee
of the University and the owner, operator and CEO of
Defendant Pure Protein, LLC. Complaint ¶ 4. Plaintiff
Danijela Mojsilovic contends she began working for the
University in January 2007 through the Optional Practical
Training Visa program, and was retained under the H1B
Visa program in May 2007, which she continued until
June, 2014. Plaintiff Aleksander Mojsilovic alleges he
started work in the same optional program in October,
2006 and was retained in the H1B Visa program in August
2007, which continued until June, 2014. Complaint
¶¶ 12–13. Both Plaintiffs allege they were retained to
work in a medical research lab under the direction of
Defendant Hildebrand. Complaint ¶ 16. Plaintiffs allege
that shortly after beginning work for the University,
Defendant Hildebrand demanded that in addition to their
work on behalf of the University, that both Plaintiffs
perform work for Defendant Pure Protein. Complaint ¶
17. Plaintiffs allege that although Defendant Hildebrand
assured Plaintiffs they would be compensated for the
work performed on behalf of his private company, which
leased laboratory space from the University, that he
failed to do so. Complaint, ¶¶ 15, 18. Plaintiffs contend
that Defendant Hildebrand required that their work on
behalf of Pure Protein be in addition to the number of
hours provided for by their contracts with the University,
and therefore, “[b]ecause Defendant Hildebrand required
Plaintiffs to work for both Defendant University and
Defendant Pure Protein, Plaintiffs worked far in excess
of forty (40) hours per week.” Complaint ¶ 21. They
allege Defendant Hildebrand, as their supervisor at the
University, had the ability to exercise nearly total control
over their employment terms and conditions, that he
was authorized to hire, fire or modify the conditions of
employment, and that he used his supervisory authority to
force Plaintiffs to work on behalf of his personal company
or to face deportation upon threat of termination.
Complaint ¶¶ 26–27. Plaintiffs allege that Defendant
Hildebrand became verbally abusive and threatened
deportation or revocation of their work visas when they
inquired why they had not been paid for all of the hours
worked. Complaint ¶ 29–30. Plaintiffs allege violation
of: (1) the Fair Labor Standards Act, because they were
not paid overtime (Count I); (2) the Trafficking Victim
Protection Reauthorization Act (“TVPRA”), 18 U.S.C. §
1589 (forced labor) (Count II); (3) the TVPRA, 18 U.S.C.
§ 1590 (trafficking into servitude) (Count III); and (4) the
Oklahoma Protection of Labor Act, Okla. Stat. tit. 40 §
165.1 et seq.(“OPLA”), for failing to timely pay Plaintiffs
wages because they were not paid for all work performed.
*2 Defendant Hildebrand contends he is entitled to
dismissal pursuant to Federal Rule of Civil 12(b)(1),
because he is entitled to Eleventh Amendment immunity,
all claims against him having been pled under the theory
© 2017 Thomson Reuters. No claim to original U.S. Government Works.
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Mojsilovic v. Oklahoma ex rel. Board of Regents for the..., Not Reported in...
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that he was acting within the scope of his employment
with the University. He further argues that Plaintiffs have
failed to state a claim against him under the FLSA, the
TVPRA or the OPLA.
The caption of the case indicates that Defendant
Hildebrand is sued in his individual capacity, despite
the fact that he is alleged to have taken these actions
in the context of his employment with the University.
The University is entitled to sovereign immunity; this
immunity, however, does not carry over to an employee
sued in his individual capacity. Scheuer v. Rhodes, 416 U.S.
232 (1974); Cornforth v. University of Oklahoma Bd. of
Regents, 263 F.3d 1129, 1132 (10th Cir.2001). As such,
Defendant Hildebrand is not entitled to dismissal of any
claims on the basis of Eleventh Amendment immunity.
Defendant Hildebrand further contends that Plaintiffs
have failed to state a claim for which relief can be
granted, thus mandating dismissal pursuant to Federal
Rule of Civil Procedure 12(b)(6). “To survive a motion
to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim for relief that is
plausible on its face.’ “ Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). The Court assumes “the factual allegations
are true and ask[s] whether it is plausible that the plaintiff
is entitled to relief.” Gallagher v. Shelton, 587 F.3d 1063,
1068 (10th Cir.2009). “[T]he tenet that a court must accept
as true all of the allegations contained in a complaint
is inapplicable to legal conclusions. Threadbare recitals
of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Iqbal, 556 U.S. at
678.
With regard to Plaintiffs' FLSA claim, Defendant
Hildebrand argues that Plaintiffs have failed to
sufficiently allege facts to support their allegation that
he was their “employer.” The FLSA defines “employer”
as including “any person acting directly or indirectly
in the interest of an employer in relation to an
employee .” 29 U.S.C. § 203(d). Many courts have held
that individual supervisors can be liable under the Act.
The FLSA broadens the definitions of employer and
employee beyond “strict application of traditional agency
principles.” Baker v. Flint Engineering & Const. Co.,
137 F.3d 1436, 1440 (10th Cir.1998). The FLSA focuses
instead on “the economic realities of the relationship”
between the employee and the employer, and includes
evaluating such factors as “whether the alleged employer
has the power to hire and fire employees, supervises
and controls employee work schedules or conditions of
employment, determines the rate and method of payment,
and maintains employment records.” Id. The Court finds
that Plaintiffs have sufficiently alleged that Defendant
Hildebrand was their employer for FLSA purposes.
Plaintiffs allege that Defendant Hildebrand demanded
they perform work on behalf of Pure Protein, that he
promised to ensure payment for such work but failed to
do so, that he demanded this work be performed after
completion of the hours required by their contract with
the University, and that he abused his role as laboratory
director to condition Plaintiffs' continued employment
with the University on their completion of work, without
pay, for Pure Protein. Plaintiffs also allege that Defendant
threatened termination, which would have resulted in
deportation. Plaintiffs also allege Defendant Hildebrand
threatened their immigration status and employment
when they had arranged holiday travel and vacation plans.
They allege he was the person responsible for assisting
with their immigration paperwork, and they feared he
would negatively impact their status if they did not
continue their unpaid work on behalf of Pure Protein.
All this combined with Defendant Hildebrand's unique
position as Department Chief at the University and
alleged owner/operator of Pure Protein, the Court finds
that Plaintiffs have sufficiently alleged that he violated the
FLSA by failing to ensure payment received for work in
excess of forty hours, by asserting that they worked their
contractual forty hours, and additional unpaid time, as
demanded by Defendant Hildebrand. Consequently, the
Court finds the allegations are sufficient to state a claim
against Defendant Hildebrand for violation of the FLSA.
*3 Defendant Hildebrand next argues that Plaintiffs
have failed to state a claim under the TVPRA. Defendant
Hildebrand first contends he is entitled to immunity
pursuant to the Oklahoma Governmental Tort Claims
Act (“GTCA”). The Court concludes that the Act does
not modify Defendant Hildebrand's obligations under
federal law, much like it does not apply to claims against
individual-capacity claims against state employees under
42 U.S.C. § 1983. See Tiemann v. Tul–Ctr., Inc., 18 F.3d
851, 853 (10th Cir.1994).
Defendant Hildebrand next contends that Plaintiffs'
TVPRA claims are subsumed in their FLSA claims. The
Tenth Circuit in Francisco v. Susano, 525 Fed.Appx. 828
© 2017 Thomson Reuters. No claim to original U.S. Government Works.
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Mojsilovic v. Oklahoma ex rel. Board of Regents for the..., Not Reported in...
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(10th Cir.2013), considered the availability of damages
under the TVPA, the precursor to the TVPRA, in the
presence of FLSA claims. The court concluded that
non-economic compensatory and punitive damages were
available under the TVPA. Id. at 835. As such, the Court
concludes that in this Circuit, the FLSA claims do not
preempt all attempts to recover under the TVPRA.
Defendant Hildebrand argues that Plaintiffs have failed
to sufficiently allege their claim for forced labor, because
threats of deportation or withholding pay do not state a
claim under the statute. As the Court interprets Plaintiffs'
claims, they allege that Defendant Hildebrand, who had
the authority to terminate Plaintiffs from their contracts
with the University, which would have implicated their
visa status, threatened termination if they did not perform
uncompensated work for the entity that he allegedly
owned. Despite Defendant Hildebrand's arguments, the
Court finds that the alleged threat is sufficient to state a
claim.
The threat of deportation “can constitute serious harm
to an immigrant within the meaning of the forced
labor statute.” United States v. Rivera, No. 09–CR–
619 (SJF), 2012 WL 2339318, at *5 (E.D.N.Y. June
19, 2012). It also “ ‘clearly falls within the concept and
definition of “abuse of legal process” ‘ “ when “ ‘the
alleged objective for such conduct was to intimidate
and coerce [Plaintiff] into forced labor.’ “ Antonatos v.
Waraich, No. 1:12–cv–1905–JMC, 2013 WL 4523792,
at *5 (D.S.C. Aug. 27, 2013) (quoting Nunag–Tanedo
v. E. Baton Rouge Parish Sch. Bd., 790 F.Supp.2d
1134, 1146 (C.D.Cal.2011) (internal citations omitted)).
Indeed, “[t]he threat of deportation alone may support
a claim for forced labor.” Aguirre v. Best Care Agency,
Inc., 961 F.Supp.2d 427, 444, 2013 WL 4446925, at
*12 (E.D.N.Y. Aug. 16, 2013); see Calimlim, 538
F.3d at 713; United States v. Alstatt, 858 F.Supp.2d
1032, 1041 (D.Neb.2012) (“A threat of deportation
which causes involuntary servitude may be sufficient.”).
The United States Supreme Court has noted that
“threatening ... an immigrant with deportation could
constitute the threat of legal coercion that induces
involuntary servitude, even though such threat made
to an adult citizen of normal intelligence would be too
implausible to produce involuntary servitude.” United
States v. Kozminski, 487 U.S. 931, 948, 108 S.Ct. 2751,
101 L.Ed.2d 788 (1988).
*4 Elat v. Ngoubene, 993 F.Supp.2d 497 (D.Md.2014).
As noted by the court in Camayo v. John Peroulis &
Sons Sheep, Inc., 2012 WL 4359086, at *5 n. 6 (D.Colo.
Sept. 24, 2012), “the question of whether statement and
actions by an employer [constitute an abuse of the legal
process] must be viewed in light of all the surrounding
circumstances, and thus resolution of whether a certain
statement amounts to an abuse of the legal process is
one that is particularly difficult on the sparse record of
a motion to dismiss.” Furthermore, for purposes of a
TVPRA claim, “ ‘[s]erious harm’ includes threats of any
consequences, whether physical or non-physical, that are
sufficient under all of the surrounding circumstances to
compel or coerce a reasonable person in the same situation
to provide or to continue providing labor or services.”
Aguirre v. Best Care Agency, Inc., 961 F.Supp.2d 427, 443
(E.D.N.Y.2013) (citation omitted). “ ‘Abuse of the law or
legal process' is the use of threats of legal action, whether
administrative, civil, or criminal, in any manner or for any
purpose for which the law was not designed in order to
coerce someone into working against that person's will.”
Id. at 444 (citation omitted).
With regard to Plaintiffs' claim under 18 U.S.C. § 1590,
the Court finds that Plaintiffs have failed to allege
sufficient facts to state a cause of action. Section 1590
provides that anyone who “knowingly recruits, harbors,
transports, provides, or obtains by any means, any
person for labor or services in violation of” the statutes
prohibiting slavery, forced labor or involuntary servitude,
is guilty of trafficking. 18 U.S.C. § 1590(a). With regard
to Defendant Hildebrand, Plaintiffs present no facts
to support their theory that he recruited, harbored,
transported or obtained Plaintiffs as required by § 1590.
See Shuvalova v. Cunningham, 2010 WL 5387770, *4
(N.D.Cal. Dec. 22, 2010); Martinez v. Calimlim, 651
F.Supp.2d 852 (E.D.Wis.2009)(listing elements of a §
1590 claim to include “knowingly recruited, harbored,
transported, provided or obtained a person for labor.”).
As noted by Defendants, the Plaintiffs allege they were
recruited by the University. They make no allegations
regarding Defendant Hildebrand with regard to their
initial decision to accept the offer of employment at the
University and travel to Oklahoma. Plaintiffs's 18 U.S.C.
§ 1590 claims are hereby dismissed.
Finally, Defendant Hildebrand contends Plaintiffs have
failed to state a claim under Oklahoma's wage statute,
Okla. Stat. tit. 40 § 165, for the same reasons Plaintiffs'
© 2017 Thomson Reuters. No claim to original U.S. Government Works.
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Mojsilovic v. Oklahoma ex rel. Board of Regents for the..., Not Reported in...
2015 WL 1542236, 24 Wage & Hour Cas.2d (BNA) 847
FLSA claim fails. The Court, however, has concluded that
Plaintiffs have sufficiently alleged facts in support of their
FLSA claim, and therefore, the motion to dismiss is denied
in this regard.
For the reasons set forth herein, Defendant Hildebrand's
motion to dismiss is granted in part and denied in part.
IT IS SO ORDERED.
All Citations
Not Reported in F.Supp.3d, 2015 WL 1542236, 24 Wage
& Hour Cas.2d (BNA) 847
Footnotes
1
This Order is Amended for the sole purpose of correcting the date it was signed to reflect April 3, 2015.
End of Document
© 2017 Thomson Reuters. No claim to original U.S. Government Works.
© 2017 Thomson Reuters. No claim to original U.S. Government Works.
4
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