Laurie Hoefer, OSB No. 054234
laurie.hoefer@lasoregon.org
Legal Aid Services of Oregon
397 N. First Street
Woodburn, OR 97071
Tel: 503-981-5291
Fax: 503-981-5292
(Additional Counsel Listed on Last Page)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MEDFORD DIVISION

OSCAR CASTANEDA-ARROYO
CARLOS EDUARDO FLORES-CASTANEDA
JULIO CESAR REYES-FALCON
MANUEL ALEJANDRO SANCHEZ-MUÑOZ
FEDERICO TORRES-AVIÑA
SILVESTRE TORRES-AVIÑA
Plaintiffs,
vs.

Civil No. 13-cv-00297 CL

FIRST AMENDED COMPLAINT
Migrant and Seasonal Agricultural
Worker Protection Act; Fair Labor
Standards Act; Oregon Contractors
Registration Act; Oregon Wage Laws

SUMMITT FORESTS, INC., an Oregon
Corporation
SCOTT NELSON
VICENTE IBARRA-MUÑOZ
ISMAEL IBARRA-MUÑOZ
GORGONIO IBARRA-MUÑOZ
Defendants.
I.

INTRODUCTION

1. Plaintiffs were recruited by Defendants from their homes in Mexico to come to Oregon under
H-2B temporary labor visas to work in reforestation. Defendants misrepresented the terms of
employment, and plaintiffs were required to incur expenses in Mexico that were for the benefits
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 of defendants. Plaintiffs were not properly paid for their work after they arrived in Oregon.
They raise claims for violations of their rights under the Migrant and Seasonal Agricultural
Workers Protection Act, 29 U.S.C. §§ 1801, et seq., (“AWPA”); the Fair Labor Standards Act,
29 U.S.C. §§ 201, et seq., (“FLSA”); the Oregon Farm and Forest Labor Contractor Registration
Act, ORS 658.405, et seq., (“OCRA”); and Oregon state wage laws.
II.

JURISDICTION

2. Jurisdiction over plaintiffs’ claims is conferred by 28 U.S.C. §1331, this action arising under
the laws of the United States; 28 U.S.C. § 1337, this action arising under an Act of Congress
regulating commerce; 29 U.S.C. § 1854, this action arising under the Migrant and Seasonal
Agricultural Worker Protection Act ( AWPA); and 29 U.S.C.§ 216, this action arising under the
Fair Labor Standards Act (FLSA).
3. Pursuant to 28 U.S.C. § 1367, this Court has supplemental jurisdiction over the claims based
on the laws of Oregon, as they are so related to claims within the Court’s original jurisdiction
that they form part of the same case and controversy under Article III of the United States
Constitution.
III. PARTIES
4. At all relevant times, plaintiffs were migrant agricultural workers within the meaning of the
AWPA, 29 U.S.C. § 1802(8)(A), in that they worked in agricultural employment of a seasonal or
temporary nature and were required to be absent overnight from their permanent place of
residence.
5. At all relevant times, plaintiffs were seasonal farmworkers within the meaning of ORS
652.145 in that they performed temporary farm or forest labor for another.
6. At all relevant times, defendant Summitt Forests, Inc. (hereinafter Summitt) was a California
corporation authorized by the Oregon Secretary of State to do business in the state of Oregon
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 with its principal office in Jackson County, Oregon.
7. At all relevant times, defendants Scott Nelson, Vicente Ibarra-Muñoz, Ismael Ibarra-Muñoz
and Gorgonio Ibarra-Muñoz, were agents or employees of Summitt.
8. At all relevant times, defendants were farm labor contractors or engaged in farm labor
contracting activities within the meaning of the AWPA, 29 U.S.C. § 1802(6) and (7), and OCRA,
ORS 658.405(4).
IV. FACTS
9. Defendants employed plaintiffs to perform forestry work in and around Medford, Oregon and
in various other states during 2011.
10. At all relevant times, Scott Nelson (“Nelson”) was the president and/or owner of defendant
Summitt.
11. At all relevant times, Vicente Ibarra-Muñoz, Ismael Ibarra-Muñoz and Gorgonio IbarraMuñoz, solicited, recruited, hired, furnished, employed and/or supplied one or more of the
plaintiffs to perform forestry work for defendants Summitt and Nelson.
12. Defendants did not accurately ascertain and disclose to each plaintiff in writing the terms and
conditions of employment at the time of each plaintiff’s recruitment.
13. Among other things, defendants represented to plaintiffs that the employer would provide all
tools, equipment and protective clothing needed to perform their jobs, but did not provide those
items.
14. Plaintiffs did not begin work until approximately one week after arriving in Medford.
15. Each plaintiff was required to take an advance on wages to purchase boots, gloves and other
tools need to perform their jobs, and food while waiting for work to begin.
16. Defendants did not furnish adequate food at no charge to plaintiffs while they waited for
work to begin.
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 17. Defendants Vicente Ibarra-Muñoz, Ismael Ibarra-Muñoz and Gorgonio Ibarra-Muñoz did not
provide defendant Summitt, or any other farm labor contractor or agricultural employer to which
Summitt furnished plaintiffs, copies of all records with respect to each plaintiff which defendant
Summitt was required to retain under the AWPA.
18. Defendants did not provide plaintiffs with written disclosures which accurately described in
Spanish all of the terms of employment required to be disclosed under AWPA and OCRA.
19. Defendants Summitt and Nelson did not make, keep, and preserve all payroll information
specified in and required by the 29 U.S.C. 1821(d)(1) relating to its employment of plaintiffs.
20. Defendants Summitt and Nelson did not provide plaintiffs with a written statement for each
pay period accurately reflecting all of the information required by AWPA and OCRA.
21. A part of the working arrangement between plaintiffs and defendants was a requirement that
defendants pay plaintiffs the prevailing hourly wage specified by the United States Department
of Labor for each hour plaintiffs worked.
22. Defendants violated the terms of the working arrangements with plaintiffs without
justification, including among other things, failing to pay the prevailing wage specified by the
Department of Labor for each hour of work, failing to pay for required tools and protective
equipment, failing to pay return transportation, and recruiting plaintiffs for employment that did
not meet the terms and conditions promised.
23. Defendants blacklisted or otherwise discriminated against each plaintiff because he contacted
Legal Aid Services of Oregon regarding his legal rights under the AWPA, OCRA and wage laws.
24. Defendants deducted varying amounts from each plaintiff’s wages without providing
accurate disclosures regarding the purpose and amounts of said deductions.
25. Each plaintiff was required to pay approximately $600 for transportation, recruitment, food,
visa fees, and other costs of travel from their homes in Mexico to Medford.
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 26. These costs incurred by plaintiffs were for the primary benefit or convenience of defendants.
27. These costs were not for the private benefit of the plaintiffs.
28. Defendants Summitt and Nelson did not fully refund these costs to each plaintiff in the first
work week to the extent that those costs brought the plaintiffs’ wages below the state or federal
minimum wage or the prevailing wage set by the United Department of Labor (“prevailing
wage”).
29. Defendants Summitt and Nelson did not pay each plaintiff the federal minimum wage in one
or more work weeks during the course of their employment.
30. Defendants Summitt and Nelson did not pay each plaintiff the Oregon minimum wage in
one or more work weeks during the course of their employment.
31. Defendants Summitt and Nelson did not pay each plaintiff the prevailing wage in one or
more work weeks during the course of their employment.
32. Defendants terminated each plaintiff’s employment on or about September 19, 2011.
33 Defendants Summitt and Nelson did not pay each plaintiff all earned and unpaid wages
immediately or within 48 hours of the termination of plaintiff’s employment with defendant.
34. Defendants Summitt and Nelson did not pay each plaintiff’s return transportation at the
termination of his employment.
35. At all relevant times, defendants Vicente Ibarra-Muñoz, Ismael Ibarra-Muñoz and Gorgonio
Ibarra-Muñoz, did not carry or possess a valid farm labor contractor license issued to each of
them by the Commissioner of the Oregon Bureau of Labor and Industries pursuant to ORS
658.410.
36. At all relevant times, Vicente Ibarra-Muñoz, Ismael Ibarra-Muñoz and Gorgonio IbarraMuñoz were not licensed as farm labor contractors subject to an employee indorsement pursuant
to ORS 658.411.
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 37. At all relevant times, Vicente Ibarra-Muñoz, Ismael Ibarra-Muñoz and Gorgonio IbarraMuñoz were not licensed as farm labor contractors subject to a reforestation indorsement
pursuant to ORS 658.417(1).
38. At all relevant times, defendants Summitt and Nelson knowingly used Vicente Ibarra-Muñoz,
Ismael Ibarra-Muñoz and Gorgonio Ibarra-Muñoz to perform farm labor contracting activities.
39. At all relevant times, defendants Summitt and Nelson assisted Vicente Ibarra-Muñoz, Ismael
Ibarra-Muñoz and Gorgonio Ibarra-Muñoz to act as unlicensed farm labor contractors.
40. Defendants did not furnish to plaintiffs at the time of hiring, recruiting, soliciting or
supplying plaintiffs for employment, a written statement in English and Spanish that contained
the information required by ORS 658.440(1)(f), including but not limited to, an accurate
description of the terms and conditions of employment.
41. At the time of hiring and prior to plaintiffs performing any work, defendants did not execute
a written agreement with plaintiffs in English and Spanish that contained the information
required by ORS 658.440(1)(f), including but not limited to, an accurate description of the terms
and conditions of employment.
42. Defendants Summit and Nelson did not substantially comply with requirements to provide
field sanitation facilities including but not limited to failing to provide required access to toilets.
43. During his employment Julio Cesar Reyes-Falcon suffered an on-the-job injury or workrelated illness.
44. Defendants Summitt and Nelson did not provide plaintiff Julio Cesar Reyes-Falcon workers’
compensation benefits for his on-the-job injury or work-related illness.
45. During the course of their employment, plaintiffs worked on products that were produced for
movement in interstate commerce or for incorporation as an ingredient in products that could be
anticipated to move in interstate commerce.
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 46. Defendants did not obtain at each place of employment and make available for inspection to
plaintiffs, a written statement of the terms and conditions of the employment as described in
section 29 U.S.C. § 1821(b).
47. On or about February 19, 2013, plaintiffs timely filed a complaint with the commissioner of
the Oregon Bureau of Labor and Industries regarding the OCRA violations alleged in this
complaint.
48. Pursuant to 29 U.S.C. § 1854(c)(2), plaintiffs attempted in good faith to resolve the issues in
dispute without litigation.
49. Defendants’ violations were intentional under the AWPA, 29 U.S.C. § 1854(c)(1).
50. Plaintiffs will continue to work seasonally in agriculture and would be willing to work for
defendants if defendants comply with applicable laws, and therefore, will suffer harm unless
defendants are enjoined from future law violations, and seek injunctive relief to prevent future
violations, pursuant to 29 U.S.C. § 1854(c) and ORS 658.475.
51 As a result of defendants’ violations of the AWPA, OCRA, FLSA, and Oregon wage and
anti-retaliation laws, plaintiffs have suffered damages for which they are entitled to recover.
V. CLAIMS FOR RELIEF
( First Claim for Relief - AWPA)
52. Defendants Summitt and Nelson failed at the time of recruitment to ascertain and disclose all
terms and conditions of employment to plaintiffs, in violation of 29 U.S.C. § 1821(a) and
attendant regulations.
53. Defendants Summitt and Nelson did not make, keep, and preserve the payroll information
required by the AWPA relating to its employment of plaintiffs, in violation of 29 U.S.C. §
1821(d)(1) and attendant regulations.
54. Defendants Summitt and Nelson did not provide plaintiffs with a written statement for each
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 pay period with all the information required by 29 U.S.C. § 1821(d)(1), in violation of 29 U.S.C.
§ 1821(d)(2) and its attendant regulation, 29 C.F.R. § 500.80(d).
55. Defendants Vicente Ibarra-Muñoz, Ismael Ibarra-Muñoz and Gorgonio Ibarra-Muñoz did not
provide to any other farm labor contractor or agricultural employer to which defendants
furnished plaintiffs, copies of all records with respect to each plaintiff which such farm labor
contractor or agricultural employer was required to retain, in violation of 29 U.S.C. § 1821(e).
56. Defendants Summitt and Nelson did not provide each plaintiff with all required written
disclosures in the language in which they are fluent, in violation of 29 U.S.C. § 1821(g).
57. Defendants Summitt and Nelson did not pay each plaintiff his wages when due, in violation
of 29 U.S.C. § 1822(a) and its attendant regulation, 29 C.F.R. § 500.81.
58. Defendants Summitt and Nelson violated, without justification, the terms of the working
arrangements with plaintiffs, in violation of 29 U.S.C. §1822(c).
59. Defendants blacklisted or otherwise discriminated against plaintiffs, in violation of 29 U.S.C.
§ 1855(a).
60. Defendants Summitt and Nelson failed to obtain at each place of employment and make
available for inspection to plaintiffs, a written statement of the terms and conditions of the
employment as described in section 29 U.S.C 1821(b), in violation of 29 U.S.C. § 1843.
61. Plaintiffs seek relief pursuant to 29 U.S.C. § 1854.
(Second Claim for Relief - FLSA)
62. Defendants Summitt and Nelson failed to pay plaintiffs the federal minimum wage in one or
more pay periods, in violation of 29 U.S.C. § 206(a)(1).
63. Defendants Summitt and Nelson did not fully refund to each plaintiff the costs that the
plaintiff incurred for the benefit of defendants in coming to Oregon to work during the first pay
period to the extent such costs caused that plaintiff’s wages to fall below the minimum required
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 by FLSA.
64. Plaintiffs seek relief pursuant to 29 U.S.C. § 216(b).
(Third Claim for Relief - Oregon Minimum Wage)
65. Defendants Summitt and Nelson failed to pay each plaintiff the Oregon minimum wage in
one or more pay periods, in violation of ORS 653.025.
66. Defendants Summitt and Nelson did not refund to each plaintiff the costs that the plaintiff
incurred in coming to Oregon to work that were not for the plaintiff’s private benefit during the
first pay period to the extent such costs caused that plaintiff’s wages to fall below the minimum
required by Oregon minimum wage law.
67. Plaintiffs seek relief pursuant to ORS 653.055.
(Fourth Claim for Relief - Oregon Wage Law)
68. Defendants Summitt and Nelson failed to pay plaintiffs all of their earned and unpaid wages
immediately or within 48 hours of the end of plaintiffs’ employment with defendants, in
violation of ORS 652.145.
69. Plaintiffs seek relief pursuant to ORS 652.150.
(Fifth Claim for Relief - Oregon Wage Claim Anti-Discrimination Law)
70.. Defendants discriminated against each plaintiff because he discussed, inquired about or
consulted an attorney about a wage claim, in violation of ORS 652.355(1)(a) and 653.060.
71. Plaintiffs seek relief pursuant to ORS 659A.885.
(Sixth Claim for Relief - OCRA)
72. Defendants Summitt and Nelson did not promptly pay all money or other things of value due
to plaintiffs in violation of ORS 658.440(1)(c).
73. Defendants Summitt and Nelson did not comply with all of their farm labor contracts,
including but not limited to contracts entered into under the Services Contract Act, in violation of
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 ORS 658.440(1)(d).
74. Defendants Summitt and Nelson did not furnish to plaintiffs at the time of hiring, recruiting,
soliciting and/or supplying, a written disclosure setting forth the information required to be
disclosed by that section, in violation of ORS 658.440(1)(f).
75. Defendants Summitt and Nelson did not execute a written agreement with each plaintiff at
the time of hiring and prior to the performance of any work that set forth all of the information
required to be disclosed by OCRA, in violation of ORS 658.440(1)(g).
76. Defendants Summitt and Nelson did not furnish to each plaintiff at the time he received
compensation a written statement that complied with the requirements described in ORS
658.440(1)(h), in violation of ORS 658.440(1)(h).
77. Defendants Summitt and Nelson failed to provide workers compensation insurance to
plaintiff Julio Cesar Reyes-Falcon, in violation of ORS 658.440(1)(j)(A).
78. Defendants Summitt and Nelson failed substantially to comply with Oregon field sanitation
requirements, in violation of ORS 658.440(2)(a).
79. Defendants Summitt and Nelson failed to provide food at no charge while waiting for work
to begin, in violation of ORS 658.440(2)(c).
80. Defendants Summitt and Nelson assisted unlicensed persons to act as farm labor contractors
in violation of ORS 658.440(3)(e).
81. Defendants Summitt, Nelson, Vicente Ibarra- Muñoz, Gorgonio Ibarra-Muñoz and Ismael
Ibarra-Muñoz discriminated against plaintiffs because they consulted Legal Aid Services of
Oregon regarding their OCRA rights, in violation of ORS 658.452(4).
82. Defendants Summitt and Nelson knowingly used the services of unlicensed farm labor
contractors, and are therefore personally, jointly and severally liable for the actions of the other
defendants under ORS 658.465.
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 83. Defendants Vicente Ibarra- Muñoz, Ismael Ibarra- Muñoz, and Gorgonio Ibarra- Muñoz
acted as farm labor contractors in relation to one or more of the plaintiffs without carrying or
possessing a license issued by the Commissioner of the Bureau of Labor and Industries pursuant
to ORS 658.405 to ORS 658.503, in violation of ORS 658.440(1)(a).
84. Defendants Vicente Ibarra- Muñoz, Ismael Ibarra- Muñoz, and Gorgonio Ibarra- Muñoz,
recruited, solicited, supplied or employed one or more of the plaintiffs without a license to act as
farm labor contractors, and without a reforestation indorsement, in violation of ORS 658.410(1)
and ORS 658.417(1).
85. Plaintiffs seek relief pursuant to ORS 658.475 and 658.453.
VI. PRAYER FOR RELIEF
WHEREFORE, plaintiffs respectfully request that this Court grant the following relief:
1. Enter judgment in favor of each plaintiff and against Summitt and Nelson, jointly and
severally, for each of their violations of the AWPA, in the amount of $500.00 or his actual
damages, whichever is greater, pursuant to 29 U.S.C. §1854(c)(1);
2. Enter judgment in favor of each plaintiff and against Vicente Ibarra- Muñoz, Ismael IbarraMuñoz, and Gorgonio Ibarra- Muñoz for each of their violations of the AWPA, in the amount of
$500.00 or his actual damages, whichever is greater, pursuant to 29 U.S.C. § 1854(c)(1);
3. Enter judgment in favor of each plaintiff and against defendants Summitt and Nelson for
violations of the FLSA, 29 U.S.C. § 206, in the amount of plaintiffs’ unpaid federal minimum
wages and an additional equal amount as liquidated damages pursuant to 29 U.S.C. § 216(b);
4. Enter judgment in favor of each plaintiff and against defendants Summitt and Nelson for their
violations of ORS 652.145 in the amount of civil penalties pursuant to ORS 652.150;
5. Enter judgment in favor of each plaintiff and against defendants Summitt and Nelson for their
violations of ORS 653.025, in the amount of their unpaid Oregon minimum wages and civil
Page 11 - FIRST AMENDED COMPLAINT

 penalties pursuant to ORS 653.055(1)(a), 653.055(1)(b) and 652.150;
6. Enter judgment in favor of each plaintiff and against defendants Summitt and Nelson for their
violations of ORS 652.355(1)(a) and 653.060 in the amount of their actual and compensatory
damages, pursuant to ORS 659A.885(1).
7. Enter judgment in favor of each plaintiff and against defendants Summitt and Nelson, for each
violation of OCRA, ORS 658.440(1)(i) and 658.440 (3)(e) in the amount of each plaintiff’s
actual damages or statutory damages of $2,000, whichever amount is greater, pursuant to ORS
658.475;
8. Enter judgment in favor of Julio Cesar Reyes-Falcon and against defendants Summitt and
Nelson, for violating ORS 658.440(1)(j)(A), in the amount of plaintiff’s actual damages or
statutory damages of $2,000, whichever amount is greater, pursuant to ORS 658.475;
9. Enter judgment in favor of each plaintiff and against defendants Summitt and Nelson, for each
violation of OCRA, 658.440(1)(c), 658.440(1)(d), 658.440(1)(f), 658.440(1)(g), 658.440(1)(h),
658.440(2)(a) and 658.440(2)(c) in the amount of each plaintiff’s actual damages or statutory
damages of $1,000, whichever amount is greater, pursuant to ORS 658.453(4);
10. Enter judgment in favor of each plaintiff and against each of defendants Vicente IbarraMuñoz, Ismael Ibarra-Muñoz, and Gorgonio Ibarra-Muñoz, for each violation, in the alternative,
of ORS 658.417(1) in the amount of each plaintiff’s actual damages or statutory damages of
$2,000, whichever is greater pursuant to ORS 658.475, or ORS 658.410 or ORS 658.440(1)(a) in
the amount of each plaintiff’s actual damages or statutory damages of $1,000, whichever is
greater, pursuant to ORS 658.453(4);
11. Enter judgment in favor of each plaintiff and against each of defendants for their violations
of ORS 658.452 in the amount of each plaintiff’s actual damages or statutory damages of $1,000,
whichever amount is greater, pursuant to ORS 658.453(4);
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 12. Enter judgment in favor of plaintiffs and against defendants Summitt and Nelson, jointly and
severally, for each of defendants Vicente Ibarra-Muñoz, Ismael Ibarra-Muñoz, and Gorgonio
Ibarra-Muñoz violations of OCRA, pursuant to ORS 658.465(1), ORS 658.411(4) and
658.453(4);
13. Award plaintiffs their costs and reasonable attorney fees pursuant to ORS 652.200(2),
653.055(4), 658.453(4), 658.475, and 29 U.S.C. § 216(b);
14. Enter an injunction on behalf of plaintiffs prohibiting defendants from further committing
the violations of the AWPA set forth herein;
15. Enter an injunction on behalf of plaintiffs prohibiting defendants from further committing
the violations of the OCRA set forth herein;
16. Award plaintiffs prejudgment and postjudgment interest as allowed by law;
17. Award plaintiffs such other relief as the Court deems just and proper.
Dated this 31st day of May, 2013.

__s/Laurie Hoefer__________________________
Laurie Hoefer, OSB No. 054234
laurie.hoefer@lasoregon.org
Legal Aid Services of Oregon
397 N. First Street
Woodburn, OR 97071
Tel: 503-981-5291
Fax: 503-981-5292
Additional Counsel
D. Michael Dale, OSB No. 771507
michaeldale@dmichaeldale.net
Law Office of D. Michael Dale
P.O. Box 1032
Cornelius, OR 97113
Tel: 503-357-8290
Fax: 503-946-3089
Erin M. Pettigrew, OSB No. 125100
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 erin@nwjp.org
Northwest Workers’ Justice Project
812 S.W. Washington, Suite 1100
Portland, OR 97205
Tel: 503-525-8454
Fax: 503-946-3029
Brenda M. Bradley, OSB No. 060453
brenda.bradley@lasoregon.org
Legal Aid Services of Oregon
230 N.E. Second Avenue, Suite A
Hillsboro, OR 97124
Tel: 503-648-7163
Fax: 503-648-0513
Shelley Latin, OSB No. 032253
shelley.latin@lasoregon.org
Legal Aid Services of Oregon
P.O. Box 1327
Pendleton, OR 97801
Tel: 541-276-6685
Fax: 541-276-4549
Of Attorneys for Plaintiffs

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