Luna Vanegas, Jose v. Signet Builders, Inc.
Transmission of Notice of Appeal, Docketing Statement, Order, Judgment and Docket Sheet to Seventh Circuit Court of Appeals re: 54 Notice of Appeal, (Attachments: # 1 Docketing Statement, # 2 Order, # 3 Judgment, # 4 Docket Sheet) (lak)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
JOSE AGEO LUNA VANEGAS,
on behalf of himself and all others similarly situated,
OPINION and ORDER
SIGNET BUILDERS, INC.,
Plaintiff Jose Ageo Luna Vanegas worked for defendant Signet Builders, Inc. under a
guestworker visa to build “livestock confinement structures” on farms in several states. Dkt. 1,
¶ 28. Although he frequently worked more than 40 hours per week, Signet did not pay him
overtime. Luna Vanegas contends that Signet violated his rights under the Fair Labor Standards
Act (FLSA). He moves for conditional certification of a collective of all Signet workers who
worked under a guestworker visa. Dkt. 15. Signet moves to dismiss Luna Vanegas’s complaint
under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief
may be granted. Dkt. 25.
The court agrees with Signet that Luna Vanegas was not entitled to overtime because
his work, as described in his complaint, fell within the FLSA’s agricultural-work exemption. So
the court does not need to consider the parties’ arguments regarding conditional certification
or personal jurisdiction over claims of members of the proposed collective. The court will grant
Signet’s motion to dismiss, deny as moot Luna Vanegas’s motion for conditional certification,
and close this case.
On Signet’s motion to dismiss, the court takes all well-pleaded allegations in Luna
Vanegas’s complaint as true and draws all reasonable inferences in Luna Vanegas’s favor.
Killingsworth v. HSBC Bank Nevada, N.A., 507 F.3d 614, 618 (7th Cir. 2007). Signet bases its
motion on the affirmative defense that Luna Vanegas’s work fell within a provision of the FLSA
that exempts agricultural workers from its overtime requirements. Dismissal for failure to state
a claim is ordinarily not appropriate based on an affirmative defense. Bland v. Edward D. Jones
& Co., L.P., 375 F. Supp. 3d 962, 982 (N.D. Ill. 2019). But “a party may plead itself out of
court by pleading facts that establish an impenetrable defense to its claims.” Tamayo v.
Blagojevich, 526 F.3d 1074, 1086 (7th Cir. 2008); see also Hecker v. Deere & Co., 556 F.3d 575,
588 (7th Cir. 2009) (dismissal under Rule 12(b)(6) appropriate when allegations in complaint
“so thoroughly anticipated the [affirmative] defense that [the court] could reach the issue” on
the complaint alone). So the court may consider whether Luna Vanegas’s description of his
work in his complaint falls within the FLSA’s agricultural exemption and therefore bars his
According to the complaint, Dkt. 1, Luna Vanegas is a Mexican citizen. Between 2004
and 2019, he worked for Signet under an H-2A guestworker visa, which allows citizens of other
countries to perform agricultural work in the United States on a temporary basis. Signet is a
construction company that contracted to build “livestock confinement structures” on farms in
Wisconsin, Iowa, Indiana, and other states. Dkt. 1, ¶ 16. On its visa application forms, Signet
described the job duties of Luna Vanegas and the other guestworkers as follows:
On farms, unload materials, lay out lumber, tin sheets, trusses,
and other components for building livestock confinement
structures. Lift tin sheets to roof and sheet walls, install doors,
and caulk structure. Clean up job sites. Occasional use of forklift
upon employer provided certification.
Id. The Department of Labor approved the visa application forms for Luna Vanegas and the
other guestworkers. Luna Vanegas says that Signet’s description of his work on the visa
application forms is accurate. Id., ¶ 28. He says that although he and the other guestworkers
routinely worked more than 40 hours per week, Signet did not pay them overtime when they
The FLSA requires employers to pay workers at a rate of at least one and one-half times
their regular rate of pay for each hour they work beyond 40 in a workweek. 29 U.S.C.
§ 207(a)(1). But the FLSA exempts “any employee employed in agriculture” from this
requirement. 29 U.S.C. § 213(b)(12). The FLSA defines “agriculture” in this way:
“Agriculture” includes farming in all its branches and among other
things includes the cultivation and tillage of the soil, dairying, the
production, cultivation, growing, and harvesting of any
agricultural or horticultural commodities[,] . . . the raising of
livestock, bees, fur-bearing animals, or poultry, and any practices
(including any forestry or lumbering operations) performed by a
farmer or on a farm as an incident to or in conjunction with such
farming operations, including preparation for market, delivery to
storage or to market or to carriers for transportation to market.
29 U.S.C. § 203(f). In other words, the agricultural exemption applies to two categories of
workers: (1) workers directly engaged in “farming in all its branches”; and (2) workers engaged
in “any practices . . . performed by a farmer or on a farm as an incident to or in conjunction
with such farming operations.” The first category of work is often called “primary agriculture,”
and the second “secondary agriculture.” See, e.g., Holly Farms Corp. v. N.L.R.B., 517 U.S. 392,
The parties agree that the work Luna Vanegas performed was not primary agriculture
under § 203(f); the question is whether it was secondary agriculture. A regulation implementing
the secondary agriculture exception states that employees of independent contractors who
build structures such as silos and granaries on a farm are engaged in secondary agriculture so
long as the work is “performed as an incident to or in conjunction with the farming operations
on the particular farm.” 29 C.F.R. § 780.136. The regulation makes it clear that whether Luna
Vanegas performed secondary agriculture by building livestock confinement structures turns
on the same considerations as it would for any other worker—was his work performed on a
farm, and was it incidental to or in conjunction with the farm’s farming operations? The parties
agree that he worked “on a farm,” so to determine whether he performed secondary agriculture,
the court must determine whether his work was incidental to or in conjunction with farming
Luna Vanegas’s complaint shows that it was. Although Luna Vanegas “had no contact”
with livestock in his work, Dkt. 1, ¶ 19, his work building livestock confinement structures was
in conjunction with “the raising of livestock,” one of the core farming operations specified in
§ 203(f). Maneja v. Waialua Agricultural Co., 349 U.S. 254 (1955), illustrates why. Maneja
involved workers at a large plantation where sugarcane was grown, then processed into raw
sugar and molasses on the farm. Id. at 256. The Court considered whether several categories of
plantation workers fell into the secondary agriculture exemption. The Court concluded that
workers on a plantation-owned railroad who transported workers, farm equipment, and
sugarcane around the plantation performed secondary agriculture because the railroad was used
exclusively for agricultural functions; without the railroad, “the land could not be cultivated
and the cane, after harvest, would spoil in the fields and be lost.” Id. at 725.
But the Maneja Court concluded that workers at the plantation’s sugarcane-processing
plant did not perform secondary agriculture because processing the sugarcane was not
incidental to or in conjunction with farming the sugarcane. The primary reason the Court gave
for its conclusion was that available data regarding sugarcane farmers showed that most did
not process their own sugarcane, particularly smaller farmers, which supported the conclusion
that processing the sugarcane was a separate endeavor from farming it. Id. at 266–67.
The Court also considered a third group of employees: the plantation’s repair workers,
who included “mechanics, electricians, welders, carpenters, plumbers and painters.” Id. at 257.
The Court held that repair workers who serviced “equipment used in performing agricultural
functions: tractors, cane loaders, cane cars, and so forth” performed secondary agriculture, but
those who serviced the plantation’s sugarcane-processing equipment did not. Id. at 263.
Luna Vanegas’s work is comparable to the work of Maneja’s railroad employees and
exempted repair workers, not that of the processing-plant employees and the nonexempted
repair workers. Like the exempted workers in Maneja, Luna Vanegas worked with materials
used directly for an agricultural purpose: confining livestock. His allegations do not support
the conclusion that he was involved in what § 780.136 calls “a separately organized productive
activity,” like the workers in Maneja who processed the sugarcane for shipment.
Luna Vanegas contends that Maneja is distinguishable because the workers in that case
worked directly for the plantation, not for an independent contractor. He says that two further
elements are required for an independent contractor’s employees to perform secondary
agriculture: (1) the contractor’s business must “be exclusively dedicated to agricultural
practices”; and (2) the contractor’s activities must “be carried on as part of the agricultural
function of the farm on which [they are] performed.” Dkt. 39, at 7. He argues that his work
for Signet met neither of these requirements because (1) Signet is a general construction
company rather than a specialized agricultural construction company; and (2) farmers do not
typically build large livestock confinement structures themselves.
These elements are found nowhere in § 203(f). Luna Vanegas’s argument is based on a
misunderstanding of the distinction drawn in § 780.136 between workers engaged in activity
that is “incident[al] to or in conjunction with . . . farming operations,” and workers engaged in
“a separately organized productive activity.” Luna Vanegas contends that the question is
whether the worker’s employer is engaged in a separately organized productive activity from
farming. But as Maneja shows, what matters is whether the worker’s activities are directed toward
an agricultural or nonagricultural end. This conclusion is supported by § 780.136, which speaks
in terms of the “practices performed” by the employee; it says nothing about the employer’s
overall business. And this conclusion is consistent with the reasoning of Maneja, which
considered whether processing sugarcane was incidental to farming it, not whether the
processing workers’ employer engaged in any nonagricultural business.
Luna Vanegas relies on Farmers Reservoir & Irrigation Co. v. McComb, 337 U.S. 755
(1949), but the case does not support his position. His first proposed requirement, that the
business “be exclusively dedicated to agricultural practices,” is drawn from the Court’s
discussion of the legislative history of the secondary agriculture exemption. The Court noted
that the initially proposed version of the exemption applied only to work performed “by a
farmer”; it did not include work performed “on a farm.” Id. at 767. During debate, a senator
“objected that this would exclude the threshing of wheat or other functions necessary to the
farmer if those functions were not performed by the farmer and his hands, but by separate
companies organized for and devoted solely to that particular job.” Id. The exemption was
amended to include work performed “on a farm” to address the senator’s concern. Id.
Luna Vanegas assumes that the exemption for secondary agriculture performed “on a
farm” must be precisely limited to the senator’s hypothetical. But he doesn’t cite any authority
to support that conclusion, and it’s not supported by the case, either. As the Court noted, the
“on a farm” amendment would apply to the hypothetical wheat threshing companies “because
their work was incidental to farming and was done on the farm”—which simply restates
§ 203(f)’s test for secondary agriculture without any additional requirements. Id. The Court
said nothing to suggest that the “on a farm” amendment was limited to precisely the type of
“separate companies” described in the senator’s hypothetical, as Luna Vanegas contends, and
neither the statutory language nor the legislative debate supports Luna Vanegas’s position.
Luna Vanegas’s second proposed requirement, that the contractor’s activities must “be
carried on as part of the agricultural function of the farm on which [they are] performed,” fares
no better. He draws this language from a passage of Farmers Reservoir in which the Court
described how work that was previously agricultural in nature could become nonagricultural
work over time. Id. at 761. The Court noted that several types of work had once been performed
by farmers but were now “separately organized as . . . independent productive activit[ies]”
performed off of farms, including tool manufacturing, fertilizer production, power generation,
and wheat grinding. Id. But the Court then explicitly said that this development was captured
by the FLSA’s “carefully considered definition” of secondary agriculture, which simply asks
whether the work is “performed by a farmer or on a farm as an incident to or in conjunction
with . . . farming operations.” Id. at 762. Again, Luna Vanegas hasn’t shown that § 203(f)
requires anything more than what it says.
The Court of Appeals for the Eleventh Circuit considered and rejected a similar
argument in Sariol v. Florida Crystals Corp., 490 F.3d 1277 (11th Cir. 2007). In that case, the
plaintiff worked on a farm, delivering fuel for various machinery around the farm and repairing
equipment around the farm. Id. at 1278. He argued that at least some of his work was not
secondary agriculture because some of the machinery for which he delivered fuel was owned by
independent contractors. Id. at 1280. Like Luna Vanegas, he seized on language from Farmers
Reservoir to contend that those independent contractors were “separately organized as an
independent productive activity.” Id. (quoting Farmers Reservoir, 337 U.S. at 761). The court
rejected the argument, noting that the language from Farmers Reservoir “deals only with the
problem of distinguishing agricultural from nonagricultural activities.” Id. (emphasis added).
The court said that “Farmers Reservoir simply does not speak to the issue of whether the work
of independent contractors can be considered separate farming operations.” Id.
Luna Vanegas’s position does find support in N.L.R.B. v. Monterey County Building &
Construction Trades Council, 335 F.2d 927 (9th Cir. 1964). In that case, the court held that
construction workers employed by an independent contractor to construct buildings on poultry
farms were not engaged in agriculture because the construction companies “are organized
separately from any farming or poultry operations and are engaged in a productive activity
which is independent from any farming or poultry operations.” Id. at 931. Luna Vanegas also
cites a decision by a Department of Labor administrative law judge who reached a similar
conclusion in a brief opinion. In re: MRL Fencing & Construction, No. 2012-TLN-00042 (Aug.
8, 2012).1 But these cases are inconsistent with the reasoning of Maneja and with the
regulations applying the secondary agriculture exemption, and they are against the weight of
authority on the issue.2 Indeed, only one other court has cited Monterey County with approval
for this holding, doing so in a footnote without extended discussion. N.L.R.B. v. Scott Paper
The decision is available at https://www.dol.gov/agencies/oalj/public/ina/references/caselists/
See, e.g., Bayside Enters., Inc. v. N.L.R.B., 429 U.S. 298, 303 n.13 (1977) (citing with approval
Department of Labor interpretative bulletin stating that independent contractor’s employees
who worked on a farm incidental to or in conjunction with poultry raising were employed in
secondary agriculture, even though independent contractor was not exclusively an agricultural
business); Sariol, 490 F.3d at 1280–81; Holtville Alfalfa Mills v. Wyatt, 230 F.2d 398 (9th Cir.
1955) (employees of industrial alfalfa processing operation who worked on a farm were
employed in secondary agriculture, even though alfalfa processing operation was industrial
work, not agriculture).
Co., 440 F.2d 625, 626 n.3 (1st Cir. 1971). The court is not persuaded that the cases cited by
Luna Vanegas require anything more of independent contractors than § 203(f) explicitly states.
In sum, Luna Vanegas performed his work on farms, and the work he
performed—constructing livestock containment structures—was incidental to farming, not
related to a separately organized activity from farming operations. So his work fell within the
FLSA’s exemption for secondary agriculture. The court will grant Signet’s motion and dismiss
IT IS ORDERED that:
1. Defendant Signet Builders, Inc.’s motion to dismiss, Dkt. 25, is GRANTED. This
case is DISMISSED under Federal Rule of Civil Procedure 12(b)(6).
2. Plaintiff Jose Ageo Luna Vanegas’s motion for conditional certification, Dkt. 15, is
DENIED as moot.
3. The clerk of court is directed to enter judgment in favor of Signet and close this
Entered August 12, 2021.
BY THE COURT:
JAMES D. PETERSON
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