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96 FEDERAL SUPPLEMENT, 2d SERIES

experience in the judicial system will not
skillfully present evidence in cross examination. Second, this action will require
significant live testimony from witnesses,
since she does not have any documentary
evidence. Finally, she does not have a
complete knowledge of the facts surrounding her claim.
Therefore, this factor weighs in favor of
granting the motion for appointment of
counsel.

Gerardo CASTILLO, et. al., Plaintiffs,
v.
CASE FARMS OF OHIO, INC.,
et. al., Defendants.
No. Civ. A. DR 97–CA–89.
United States District Court,
W.D. Texas,
Del Rio Division.
Dec. 1, 1999.

(3) Conclusion
An appointed counsel will aid in the
efficient and equitable disposition of Ruthie Bright’s action. Further, all four factors weigh in favor of granting the motion
for appointment of counsel. Therefore,
the motion for appointment of counsel
should be granted.
4.

Recommendation

The motion to proceed in forma pauperis should be granted. Likewise, the motion for appointment of counsel should be
granted.
5.

Objections

Objections must be: (1) specific, (2) in
writing, and (3) served and filed within ten
days after being served with a copy of this
report. See 28 U.S.C. § 636(b)(1); FED. R.
CIV. P. 1(a), 6(b), and 72(b).
[10] A party’s failure to object bars
that party from: (1) entitlement to de novo
review by a district judge of proposed
findings and recommendations, see Rodriguez v. Bowen, 857 F.2d 275, 276–77 (5th
Cir.1988), and (2) appellate review, except
on grounds of plain error, of unobjected-to
factual findings and legal conclusions accepted by the district court, see Douglass
v. United Servs. Auto. Ass’n., 79 F.3d
1415, 1417 (5th Cir.1996) (en banc).
April 18, 2000.

,

Migrant farm workers brought action
against chicken processor, claiming violations of the Migrant and Seasonal Agricultural Worker Protection Act (AWPA), the
Fair Labor Standards Act (FLSA), and
various state laws. The District Court, Justice, Senior District Judge, held that: (1)
chicken processor and farm labor contractor were ‘‘joint employers’’; (2) contractor
was acting as agent for chicken processor
in housing and transportation of workers;
(3) processor’s use of unregistered farm
labor contractors, failure to provide written disclosures, providing false or misleading information, failure to comply with the
terms of the working agreement, and failure to secure the certificate of occupancy,
and failure to insure and inspect vehicles
violated AWPA; (4) processor was within
its authority under FLSA to make housing
deductions as to its migrant workers who
consented to the deductions; and (5) processor made unauthorized deductions for
housing from certain migrant workers
where the deductions were taken for substandard housing.
Judgment for plaintiffs.
1. Labor Relations O1669
For purposes of Migrant and Seasonal
Agricultural Worker Protection Act
(AWPA), chicken processor and farm labor
contractor were ‘‘joint employers’’ of migrant farm workers recruited by contractor; (1) processor exercised a high degree
of control over the workers; (2) workers

 CASTILLO v. CASE FARMS OF OHIO, INC.
Cite as 96 F.Supp.2d 578 (W.D.Tex. 1999)

performed a specialty job which was an
integral part of processor’s overall production process; (3) processor owned and controlled the property and facilities where
the work took place; (4) processor had the
ability to determine the wage rates or the
method of payment of the workers; (5) the
terms of employment of the workers did
not vary in any material way when they
were placed on processor’s payroll; (6) the
workers were not part of a business organization which shifted as a unit from one
workplace to another; and (7) little skill or
initiative was required to perform the
chicken processing work done by the
workers. Migrant and Seasonal Agricultural Worker Protection Act, § 2 et seq.,
29 U.S.C.A. § 1801 et seq.; 29 C.F.R.
§ 500.20(h)(5).
See publication Words and Phrases for other judicial constructions
and definitions.

2. Principal and Agent O131
Under common law agency rules, the
actions of an agent may, in certain circumstances, be said to have been committed by
the agent’s principal.
3. Labor Relations O1661
Fact that Congress has created a statutory framework of protections for migrant workers in no way exempts agricultural employers, recruiters, and overseers
from common law agency principles; rather, the protections afforded by Migrant
and Seasonal Agricultural Worker Protection Act (AWPA) are designed to supplement traditional common law principles.
Migrant and Seasonal Agricultural Worker
Protection Act, § 2 et seq., 29 U.S.C.A.
§ 1801 et seq.
4. Principal and Agent O131
Principal may be held liable for the
acts of its purported agent based on an
actual agency relationship created by the
principal’s express or implied delegation of
authority to the agent.
5. Principal and Agent O96
Giving an agent express authority to
undertake a certain act also includes the
implied authority to do all things proper,

579

usual, and necessary to exercise that express authority.
6. Principal and Agent O8, 102(1)
Express agency relationship, the
scope of which included recruiting and hiring migrant workers to perform jobs at
chicken processor’s plant, existed between
chicken processor and farm labor contractor.
7. Principal and Agent O131
Principal is liable for the actions of an
agent only if those actions are taken in the
scope of the agent’s employment. Restatement (Second) of Agency § 228.
8. Principal and Agent O102(1)
Farm labor contractor was acting as
agent for chicken processor in housing and
transportation of workers; given fact that
housing and transportation were necessary
components of contractor’s recruitment
process, contractor’s express authority to
recruit and hire people to work at chicken
processor’s plant included the implied authority with regard to housing and transportation of workers.
9. Labor Relations O1661
Under Migrant and Seasonal Agricultural Worker Protection Act (AWPA), recruitment by an agricultural employer includes recruitment through an agent.
Migrant and Seasonal Agricultural Worker Protection Act, § 2 et seq., 29 U.S.C.A.
§ 1801 et seq.
10. Principal and Agent O15
Chicken processor’s employee, who
worked both for processor and for farm
labor contractor in recruiting migrant
workers, was acting as agent for chicken
processor with regard to housing and
transportation of the workers; employee
was acting under the authorization and
direction of processor, and the functions he
carried out with respect to recruitment of
contractor’s employees were done in his
capacity as processor’s employee, and in
those instances where employee may have

 580

96 FEDERAL SUPPLEMENT, 2d SERIES

acted on his own behalf for contractor, he
would still be an agent of processor via
contractor.
11. Labor Relations O1671
Chicken processor violated Migrant
and Seasonal Agricultural Worker Protection Act (AWPA) by utilization of the services of a farm labor contractor to supply
any migrant or seasonal agricultural worker without first taking reasonable steps to
determine that the farm labor contractor
possessed valid certificate of registration.
Migrant and Seasonal Agricultural Worker
Protection Act, § 402, 29 U.S.C.A. § 1842.
12. Principal and Agent O159(1)
Chicken processor could be held liable
for its agent’s violation of provision of Migrant and Seasonal Agricultural Worker
Protection Act (AWPA) requiring certain
written disclosures to migrant workers at
the time of recruitment. Migrant and Seasonal Agricultural Worker Protection Act,
§ 201(a), 29 U.S.C.A. § 1821(a).
13. Labor Relations O1673
Migrant and Seasonal Agricultural
Worker Protection Act (AWPA) disclosure
requirements applied to workers who decided, independently of any action on the
part of the agricultural employer, on his or
her own to come work for employer. Migrant and Seasonal Agricultural Worker
Protection Act, § 201(a), 29 U.S.C.A.
§ 1821(a).
14. Labor Relations O1678
Agricultural employer could not be
held liable for failure of the Texas Workforce Commission to comply with Migrant
and Seasonal Agricultural Worker Protection Act (AWPA) by providing required
written disclosures to migrants workers
which it recruited. Migrant and Seasonal
Agricultural Worker Protection Act,
§ 201(a), 29 U.S.C.A. § 1821(a).
15. Labor Relations O1661
As to certain workers recruited by
farm labor contractor, chicken processor
violated Migrant and Seasonal Agricultural
Worker Protection Act’s (AWPA) prohibition against agricultural employers by

knowingly providing false or misleading
information to migrant agricultural workers regarding the terms, conditions, or existence of agricultural employment; however, preponderance of the evidence did not
establish processor’s violations with respect to workers recruited by its employee. Migrant and Seasonal Agricultural
Worker Protection Act, §§ 201(f), 504, 29
U.S.C.A. §§ 1821(f), 1854.
16. Labor Relations O1661
Chicken processor violated section of
Migrant and Seasonal Agricultural Worker
Protection Act’s (AWPA) prohibiting violation of the terms of working arrangement
with respect to workers recruited by farm
labor contractor, but not with respect to
workers recruited by its own employee or
Texas Workforce Commission. Migrant
and Seasonal Agricultural Worker Protection Act, § 202(c), 29 U.S.C.A. § 1822(c).
17. Labor Relations O1675
In view of fact that activities of farm
labor contractor and chicken processor’s
employee’s regarding housing of migrant
workers which they recruited were performed within the scope of their duties as
chicken processor’s agent, chicken processor ‘‘controlled’’ the housing of workers
for purposes of section of Migrant and
Seasonal Agricultural Worker Protection
Act’s (AWPA) incorporating substantive
federal and state safety and health standards into its migrant worker protections.
Migrant and Seasonal Agricultural Worker
Protection Act, § 203(a), 29 U.S.C.A.
§ 1823(a); 20 C.F.R. § 654.406 et seq.; 29
C.F.R. § 1910.142 et seq.
See publication Words and Phrases for other judicial constructions
and definitions.

18. Labor Relations O1675
Chicken processor did not ‘‘control’’
the housing of certain workers recruited
by employee for purposes of section of
Migrant and Seasonal Agricultural Worker
Protection Act’s (AWPA) incorporating
substantive federal and state safety and
health standards into its migrant worker

 CASTILLO v. CASE FARMS OF OHIO, INC.
Cite as 96 F.Supp.2d 578 (W.D.Tex. 1999)

protections; processor’s role in the workers’ housing was limited to lease negotiations and advances of security deposit and
first month’s rent. Migrant and Seasonal
Agricultural Worker Protection Act,
§ 203(a), 29 U.S.C.A. § 1823(a); 20 C.F.R.
§ 654.406 et seq.; 29 C.F.R. § 1910.142 et
seq.
19. Labor Relations O1675
With respect to those migrant workers whose housing was controlled by chicken processor, chicken processor violated
section of Migrant and Seasonal Agricultural Worker Protection Act’s (AWPA) requiring that agricultural employers who
own or control housing that is used as
housing for migrant workers secure certification stating that the housing meets applicable safety and health standards. Migrant and Seasonal Agricultural Worker
Protection Act, § 203(b), 29 U.S.C.A.
§ 1823(b).
20. Labor Relations O1675
For purposes of section of Migrant
and Seasonal Agricultural Worker Protection Act’s (AWPA) requiring an agricultural employer who provides housing for any
migrant agricultural worker to post in a
conspicuous place, or present to each occupant, a statement of the terms and conditions of occupancy of the housing, chicken
processor ‘‘provided’’ housing for migrants
workers whose housing it procured, regardless of whether it controlled their
housing. Migrant and Seasonal Agricultural Worker Protection Act, § 201(c), 29
U.S.C.A. § 1821(c).
See publication Words and Phrases for other judicial constructions
and definitions.

21. Labor Relations O1669, 1678
Principal and Agent O159(1)
Chicken processor was liable under
agency theory and as joint employer for
violations of Migrant and Seasonal Agricultural Worker Protection Act’s (AWPA)
transportation safety provisions with respect to workers recruited by farm labor
contractor and with respect to those workers recruited by its employee, who arranged for and directed their transporta-

581

tion. Migrant and Seasonal Agricultural
Worker Protection Act, § 201(c), 29
U.S.C.A. § 1821(c).
22. Statutes O219(1)
In critically examining statutorily-derived regulations, a court’s review is governed by the standards set forth in Chevron.
23. Statutes O219(1)
Where Congress has entrusted an
agency with implementation of a statutory
scheme, that agency’s interpretation of the
statutory terms is entitled to substantial
deference.
24. Labor Relations O1660
Insofar as pay statements received by
migrant workers failed to include employer’s name, address, and employer identification number assigned by the Internal
Revenue Service, they were in violation of
the Migrant and Seasonal Agricultural
Worker Protection Act (AWPA). Migrant
and Seasonal Agricultural Worker Protection Act, § 201(d)(2), 29 U.S.C.A.
§ 1821(d)(2); 29 C.F.R. § 500.80(d).
25. Labor Relations O1685
If a court awards statutory, rather
than actual, damages, the award must be
$500 or less for each violation of Migrant
and Seasonal Agricultural Worker Protection Act (AWPA); actual damages, however, do not have a cap under the AWPA.
Migrant and Seasonal Agricultural Worker
Protection Act, § 504(c), 29 U.S.C.A.
§ 1854(c).
26. Labor Relations O1685
Factors which go into a court’s determination of statutory damages under Migrant and Seasonal Agricultural Worker
Protection Act (AWPA) include: (1) the
nature and persistence of the violations; (2)
the extent of the defendant’s culpability;
(3) damage awards in similar cases; (4) the
defendants’ ability to prevent future violations of the Act; (5) the substantive or
technical nature of the violation; (6) the
circumstances of each case; (7) the adequa-

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96 FEDERAL SUPPLEMENT, 2d SERIES

cy of an award to encourage workers to
assert their rights; (8) the total number of
plaintiffs involved, the total number of violations; (9) the total amount to be assessed
against the defendant; (10) any recovery
by the plaintiffs on closely related claims
joined in the same suit that will in part
compensate damage caused by violations
of the Act; and (11) the total amount of the
award. Migrant and Seasonal Agricultural
Worker Protection Act, § 504(c), 29
U.S.C.A. § 1854(c).
27. Labor Relations O1685
Awards under Migrant and Seasonal
Agricultural Worker Protection Act
(AWPA) must be adequate to encourage
workers to assert their statutory rights.
Migrant and Seasonal Agricultural Worker
Protection Act, § 504(c), 29 U.S.C.A.
§ 1854(c).
28. Labor Relations O1661
Migrant and Seasonal Agricultural
Worker Protection Act (AWPA) is not a
‘‘specific-intent’’ statute; neither agricultural employer’s ignorance, nor its stance
that it was not covered by the law, could
excuse its violations of the AWPA. Migrant and Seasonal Agricultural Worker
Protection Act, § 2 et seq., 29 U.S.C.A.
§ 1801 et seq.
29. Labor Relations O1685
Calculation of actual damages under
Migrant and Seasonal Agricultural Worker
Protection Act (AWPA) may include compensation for mental anguish and humiliation. Migrant and Seasonal Agricultural
Worker Protection Act, § 504(c), 29
U.S.C.A. § 1854(c).
30. Labor Relations O1685
Those migrant workers who proved
violations of Migrant and Seasonal Agricultural Worker Protection Act (AWPA)
were entitled to statutory damages for
chicken processor’s use of unregistered
farm labor contractors, failure to provide
written disclosures, providing false or misleading information, failure to comply with
the terms of the working agreement, and
failure to secure the certificate of occupancy, failure to insure and inspect vehicles;

furthermore, workers were entitled to actual damages for processor’s failure to
comply with housing health and safety
codes and $50.00 for de minimus violation
of requirement of providing proper pay
statements. Migrant and Seasonal Agricultural Worker Protection Act, § 504(c),
29 U.S.C.A. § 1854(c).
31. Labor Relations O1291
Fair Labor Standards Act’s (FLSA)
requirement that wages be paid ‘‘free and
clear,’’ does not mean that deductions from
a worker’s pay are per se illegal; deductions for necessary equipment or supplies
are illegal when such deductions deprive a
worker of the federally mandated minimum wage or overtime pay. 29 C.F.R.
§ 531.35.
32. Labor Relations O1292
Deductions for housing may, in some
instances, also be legally made by an employer under Fair Labor Standards Act
(FLSA). Fair Labor Standards Act of
1938, § 3(m), 29 U.S.C.A. § 203(m).
33. Labor Relations O1262.1
Workers cannot waive their rights under Fair Labor Standards Act (FLSA),
even by agreement. Fair Labor Standards Act of 1938, § 16(b), 29 U.S.C.A.
§ 216(b).
34. Labor Relations O1675
Agricultural employer was within its
authority under Fair Labor Standards Act
(FLSA) to make housing deductions as to
its migrant workers who consented to the
deductions. Fair Labor Standards Act of
1938, § 3(m), 29 U.S.C.A. § 203(m); 29
C.F.R. § 531.31.
35. Labor Relations O1675
Agricultural employer made unauthorized deductions for housing from certain
migrant workers where the deductions
were taken for substandard housing. Fair
Labor Standards Act of 1938, § 3(m), 29
U.S.C.A. § 203(m); 29 C.F.R. § 531.31.

 CASTILLO v. CASE FARMS OF OHIO, INC.
Cite as 96 F.Supp.2d 578 (W.D.Tex. 1999)

583

36. Contracts O326
To prove a breach of contract under
Texas law, a plaintiff must show, by a
preponderance of the evidence, (1) the existence of a valid contract, (2) the plaintiff’s
performance or tender of performance; (3)
the defendant’s breach; and (4) the plaintiff’s damage as a result of the breach.

Hernandez, Jesus Mejia, Joseph Cooper,
Guadalupe Zamorano, Jose Guadalupe Estrada, Rafael Gonzalez, Raul Zavala, Ricardo Zamorano, Efrain Leal, Gustavo
Caballero, Edgar A. Chavez, Americo
Galvan, Carlos A. Gonzalez, Juan Piente,
Tomas Solis, Juan Carlos Verastegui,
plaintiffs.

37. Labor Relations O1675
Under Texas law, agricultural employer breached its contract with migrant
workers recruited by farm labor contraction when it failed to provide them with
suitable housing and transportation as
promised.

Rodolfo D. Sanchez, Texas Rural Legal
Aid, Inc., Weslaco, TX, for Yolanda Leura,
plaintiff.

38. Fraud O13(3)
To prevail on negligent misrepresentation claim under Texas law, a plaintiff
must prove that (1) defendant made some
representation in the course of its business; (2) defendant supplied the false information for the guidance of others in
their business; (3) defendant did not exercise reasonable care or competence in obtaining or communicating the information;
and (4) the plaintiff suffered pecuniary loss
by justifiably relying on the representation.
39. Fraud O3
To recover for fraud under Texas law,
a plaintiff must prove that (1) a material
representation was made; (2) it was false
when made; (3) the speaker knew it to be
false, or made it recklessly without knowledge of its truth and as a positive assertion; (4) the speaker made it with the
intent that it should be acted upon; and (5)
the party acted in reliance and suffered
injury as a result.
Javier Riojas, Texas Rural Legal Aid,
Eagle Pass, TX, Rodolfo D. Sanchez, Texas Rural Legal Aid, Inc., Weslaco, TX,
for Gerardo Castillo, Michelle Galvan,
Eloy Cantu, Hugo Hernandez, Esperanza
Hernandez, Martin Hernandez, Sergio
1.

This court has subject matter jurisdiction
over this civil action pursuant to 29 U.S.C.
§ 1854(a), 29 U.S.C. § 216(b), and 28 U.S.C.
§ 1331, and § 1337. Supplemental jurisdic-

Richard O. Gonzales, Uvalde, TX, Rodolfo D. Sanchez, Texas Rural Legal Aid,
Inc., Weslaco, TX, for Edna Chong, plaintiff.
Selena N. Solis, Texas Rural Legal Aid,
Farm worker Div., Weslaco, TX, Lisa J.
D’Souza, Dept. of Justice, Employment
Litigation Section, Civil Rights Div., Washington, DC, Rodolfo D. Sanchez, Texas
Rural Legal Aid, Inc., Weslaco, TX, for
plaintiffs.
Robert D. Kilgore, Cox & Smith Inc.,
San Antonio, TX, Dean E. Westman, Jeffrey J. Weber, Jill C. Boland, Millisor &
Nobil, Cleveland, OH, for Case Farms of
Ohio, Inc., defendant.
MEMORANDUM OPINION
JUSTICE, Senior District Judge.
The above-entitled and numbered civil
action was filed on December 19, 1997, by
a group of migrant farm workers, claiming
violations of the Migrant and Seasonal Agricultural
Worker
Protection
Act
(‘‘AWPA’’), the Fair Labor Standards Act
(‘‘FLSA’’), and various state laws. The
primary defendant is Case Farms of Ohio,
a chicken processing plant located in
Winesburg, Ohio.
A bench trial in this civil action commenced on March 29, 1999,1 and was completed on April 1, 1999. In accordance
with Federal Rule of Civil Procedure 52(a),
tion over the plaintiffs’ common law claims
may be exercised accordant to 28 U.S.C.
§ 1367.

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96 FEDERAL SUPPLEMENT, 2d SERIES

the following memorandum opinion constitutes the court’s findings of fact and conclusions of law in this civil action.
TABLE OF CONTENTS
INTRODUCTION
I. Background Facts
II. Trial Procedure
PART I: AN OVERVIEW OF THE LAW
PART II: GENERAL APPLICABLE LIABILITY PRINCIPLES
I. Case Farms’ Liability as to the 1996 Plaintiffs
A. An Agricultural Employer’s Liability Under the AWPA
The Joint Employer Doctrine
Case Farms and ATC as Joint Employers
The Implications of Joint Employer Status
B. An Agricultural Employer’s Liability Under Common Law Agency Principles
ATC’s Agency
Hernandez’s Agency
C. Case Farms’ Liability for the Actions of ATC and Alvaro Hernandez
II. Case Farms’ Liability as to the 1997 Plaintiffs
PART III: ALLEGED VIOLATIONS OF THE AWPA
I. Unregistered Farm Labor Contractors’ Alleged Violations of 29 U.S.C. § 1842
A. The Law
B. 1996 Plaintiffs
C. 1997 Plaintiffs
II. Written Disclosures: Alleged Violations of 29 U.S.C. § 1821(a)
A. The Law
B. The 1996 Plaintiffs
C. The 1997 Plaintiffs
III. False or Misleading Information: Alleged Violations of 29 U.S.C. § 1821(f)
A. The Law
B. The 1996 Plaintiffs
C. The 1997 Plaintiffs
IV. Compliance with the Terms of the Working Arrangement: Alleged Violations of 29
U.S.C. § 1822(c)
A. The Law
B. The 1996 Plaintiffs
C. The 1997 Plaintiffs
V. Housing Health and Safety Codes: Alleged Violations of 29 U.S.C. § 1823(a)
A. The Law
B. The 1996 Plaintiffs
C. The 1997 Plaintiffs
VI. Posted Certificate of Occupancy: Alleged Violations of 29 U.S.C. § 1823(b)
VII. Posted Terms and Conditions of Housing Occupancy: Alleged Violations of 29 U.S.C.
§ 1821(c)
VIII. Insurance and Inspection of Vehicles: Alleged Violations of 29 U.S.C. § 1841(b)
A. The Law
B. The 1996 Plaintiffs
C. The 1997 Plaintiffs
IX. Proper Pay Statements: Alleged Violations of 29 U.S.C. § 1821(d)(2)
X. Paid Wages When Due: Alleged Violations of 29 U.S.C. § 1822(a)
XI. Damages for Violations of the AWPA
A. The Assessment of Statutory Damages
B. The Assessment of Actual Damages
C. The Plaintiffs’ Damages
1. Use of Unregistered Farm Labor Contractors
2. Failure to Provide Written Disclosures
3. Providing False or Misleading Information
4. Failure to Comply with the Terms of the Working Agreement
5. Failure to Comply with Housing Health and Safety Codes
6. Failure to Secure the Certificate of Occupancy
7. Failure to Post the Terms and Conditions of Housing Occupancy

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Cite as 96 F.Supp.2d 578 (W.D.Tex. 1999)

585

8. Failure to Insure and Inspect Vehicles
9. Failure to Provide Proper Pay Statements
10. Failure to Provide Wages When Due
PART IV: ALLEGED VIOLATIONS OF THE FLSA
I. The Fair Labor Standards Act
II. The Rules for Calculating Minimum Wage Violations
III. Case Farms’ Alleged Minimum Wage Violations
IV. Case Farms’ Alleged Overtime Wage Violations
A. The 1996 Plaintiffs’ Overtime Allegations
B. The 1997 Plaintiffs’ Overtime Allegations
PART V: ALLEGED VIOLATIONS OF STATE LAW
I. Case Farms’ Alleged Breach of Contract
II. Case Farms’ Alleged Negligence
III. Case Farms’ Alleged Fraud
CONCLUSION

INTRODUCTION
I.

Background

2

Defendant Case Farms of Ohio, Inc.
(‘‘Case Farms’’), is a chicken processing
plant in Winesburg, Ohio. At this facility,
approximately 400,000 live chickens per
week, year-round, are live-hung, slaughtered, eviscerated, cleaned, cut and deboned, and ultimately packaged for market. Case Farms employees perform a
range of jobs, which include eviscerating,
deboning, receiving, grading, wrapping,
weighing, and washing chickens.
In consideration of its historically high
turnover rate, Case Farms actively recruited workers for its processing plant
during 1996 and 1997. Andy Cilona, primarily responsible for recruiting workers
for Case Farms, served as Case Farms’
Human Resources Director from his date
of hire until February 1996, and as Case
Farms’ Director of Corporate Development, from February 1996 until mid–1997.
During one of his recruiting trips in Florida, Cilona initiated contact with a labor
agency for temporary employees, America’s Tempcorps (‘‘ATC’’).3 In conformity
with an unwritten agreement with Case
Farms, ATC worked in Texas, recruiting
and hiring a number of people to work at
2.

For the most part, these introductory facts
were culled from the list of ‘‘facts and issues
not in genuine dispute’’ provided by the parties in their Joint Pre–Trial Order.

3.

Also named as defendants are D & S Career
Service, Inc., doing business as America’s

Case Farms’ chicken processing plant in
Ohio. During this recruitment process,
ATC gave some of its recruits the telephone number of Alvaro Hernandez, a
Case Farms employee, and instructed
them to call Hernandez upon their arrival
in Ohio. ATC also usually gave its recruits
a free bus ticket or other free transportation to Ohio, as well as $20.00 each in
traveling expenses. Case Farms ceased
doing business with ATC in February
1996.
There are two groups of plaintiffs in this
civil action. Those workers recruited by
ATC in McAllen, Texas, make up the ‘‘1996
plaintiffs.’’ 4 The ‘‘1996 plaintiffs,’’ sixteen
in number, are as follows: Eloy Cantu,
Gerardo Castillo, Edna Mae Chong (representing the estate of deceased plaintiff Josephine Tijerina), Efrain Leal, Rafael Gonzalez, Sergio Hernandez, Jose Guadalupe
Estrada, Martin Hernandez, Esperanza
Hernandez, Joseph Cooper, Hugo Hernandez, Jesus Mejia, Guadalupe Zamorano,
Ricardo Zamorano, Raul Zavala, and Michelle Galvan.
The second group of plaintiffs, the eleven ‘‘1997 plaintiffs,’’ were provided recruitment information by Cilona, Case Farms’
employee, or by Alberto Garcia, an emTempCorps, and Patricia L. Daum, doing
business as America’s TempCorps, (‘‘ATC defendants’’). The plaintiffs were unable to locate and serve the ATC defendants.
4.

The plaintiffs may be conveniently separated into two groups, based on when, how, and
by whom they were recruited.

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96 FEDERAL SUPPLEMENT, 2d SERIES

ployee of the Texas Workforce Commission, in Eagle Pass, Texas. Most of the
1997 plaintiffs traveled to Ohio by bus and
were, upon their respective arrivals in
Ohio, without their own vehicles. This
second group of plaintiffs was comprised of
Gustavo Caballero, Estela Carreon, Carlos
Gonzalez, Jose A. Guevara, Juan A. Jimenez, Yolanda Leura (representing the estate of her deceased son, Daniel Leura),
Aurora Navarro, Carlos Reyna, Tomas
Solis, Israel Trevino, and Urbana Zavala.
Most of the twenty-seven plaintiffs 5
worked for some period of time at the
Case Farms plant.6 Whether recruited by
ATC, Cilona, or Garcia, all plaintiffs who
worked at Case Farms’ plant were supervised by Case Farms employees.
Both sets of plaintiffs generally claim
that they were recruited in Texas to work
at Case Farms’ Winesburg facility, and
that, upon arriving at Case Farms, they
discovered that the actual terms and conditions of their employment, transportation,
and housing in Ohio did not coincide with
5.

Between the filing of the initial pleadings
and the commencement of trial in this civil
action, several plaintiffs dismissed their
claims against the defendants. The plaintiffs
listed here are those remaining at the time of
trial.

6.

The following times of employment for various plaintiffs were agreed to by the parties:
Plaintiffs Jesus Mejia, Guadalupe Zamorano,
Ricardo Zamorano, and Raul Zavala worked
on Case Farms’ processing line during 1996.
Plaintiffs Joseph Cooper, Eloy Cantu, and
Sergio Hernandez did not work at the Case
Farms plant. Plaintiff Hugo Hernandez
worked at Case Farms’ processing plant for
approximately one-and-a-half weeks between
January 26, 1996, and February 6, 1996.
Plaintiff Esperanza Hernandez worked at
Case Farms’ processing plant for approximately ten weeks, between January 26, 1996,
and April 13, 1996. Plaintiff Juan Jimenez
was employed by Case Farms for approximately six months, beginning in January
1997. Plaintiff Carlos Gonzalez was employed by Case Farms for approximately one
month, beginning in March 1997. Plaintiff
Jose Guevara was employed by Case Farms
for approximately five months, between
March 15, 1997, and September 20, 1997.
Plaintiffs Aurora Navarro and Urbana Zavala
were employed by Case Farms for approximately eight months between November 29,

the promises made to them in Texas. At
the trial of this case, plaintiffs testified to
the inadequate housing conditions and
transportation provisions they encountered
upon arrival in Ohio.
Thus, the bases for this civil action are
the defendants’ alleged misrepresentations
and mistreatment of the plaintiffs in the
recruitment process in Texas, and, as well,
the working and living conditions afforded
them in Ohio. Plaintiffs contend that defendants violated a number of the statutory rights of employees created by the Migrant and Seasonal Agricultural Worker
Protection Act (‘‘AWPA’’), 29 U.S.C.
§ 1801 et seq., and the Fair Labor Standards Act (‘‘FLSA’’), 29 U.S.C. § 216(b).7
Plaintiffs further allege that defendants
were guilty of breach of contract, fraud,
and negligent misrepresentation with regard to the bases of plaintiffs’ claims.
Defendant Case Farms responded to
these allegations with primarily legal defenses.8 Generally speaking, rather than
refute the veracity of most of the plaintiffs’
1996, and July 1997. Plaintiff Carlos Reyna
was employed by Case Farms for approximately one week in August 1997. Plaintiff
Tomas Solis was employed by Case Farms for
approximately one week in March 1997.
Plaintiffs Israel Trevino and Estela Carreon
were employed by Case Farms for approximately three weeks in May 1997.
7.

Among the various statutory violations alleged by the plaintiffs are the utilization of an
unregistered farm labor contractor, failure to
provide written disclosures, violations of the
terms of the working agreement, the use of
false and misleading information, failure to
post or to provide a statement of the terms
and conditions of the housing, failure to ensure that the housing met applicable health
and safety codes, failure to secure certification that the housing met the applicable
health and safety codes, failure to properly
insure and inspect transportation vehicles, the
use of improper pay statements, ‘‘wages owed
when due’’ violations, FLSA minimum wage
violations, and FLSA overtime violations.

8.

Case Farms’ contention that the plaintiffs in
this civil action are not ‘‘migrant or seasonal
workers,’’ and are therefore ineligible for the
protections afforded by the AWPA, was rejected by this court in its disposition of the parties’ summary judgment arguments.

 CASTILLO v. CASE FARMS OF OHIO, INC.
Cite as 96 F.Supp.2d 578 (W.D.Tex. 1999)

factual claims, Case Farms’ primary defense at trial was that it cannot be held
legally responsible for the plaintiffs’ alleged mistreatment.
II.

Trial Procedure

The necessity of individually considering
the evidence pertinent to the approximately fifteen legal claims brought by each of
twenty-seven plaintiffs has made for a
cumbersome record (and final judgment)
in this civil action. In the course of this
litigation, resolution of over 400 legal
claims was required.
Certain adjustments to standard trial
procedure were made in this civil action to
assist in expediting its disposition. By
agreement of the parties and the court,
only four plaintiffs (Martin Hernandez, Michelle Galvan, Carlos Gonzalez, and Israel
Trevino) actually testified in person on direct examination at the trial. Fourteen of
the remaining plaintiffs presented their direct testimony by means of designated deposition excerpts and affidavits, and were
then made available for in-person crossexamination by Case Farms. The ten remaining plaintiffs did not testify at all on
direct examination. For most of those
individuals, however, parts of their deposition testimony were made a part of the
record and submitted into evidence by
Case Farms.9
Although it is acknowledged that such a
procedure is less than ideal, it is also recognized that, in the interest of the efficient
disposition of justice, such variations from
standard routine may be necessary. However, as other courts have made manifest,
it is preferable to have ‘‘live testimony,
which allows [the court] to judge the sincerity and credibility of plaintiffs’ claims
and allows the parties to fill in the gaps
other methods of proof often leave.’’ Bue9.

The non-testifying plaintiffs included: 1996
plaintiffs Esperanza Hernandez, Hugo Hernandez, Ricard Zamorano, and Raul Zavala;
and 1997 plaintiffs Estela Carreon, Yolanda
Leura, A. Navarro, and Tomas Solis.

10. One of the primary areas of expansion of
migrant worker protections afforded by the
AWPA is that the statutory duties were ex-

587

no v. Mattner, 633 F.Supp. 1446, 1453
(W.D.Mich.1986). As other courts have
also made clear, however, the ends of justice, at times, require a combination of live
and written testimony. See Beliz v. W.H.
McLeod & Sons Packing Co., 765 F.2d
1317, 1331 (5th Cir.1985); Castillo v. Givens, 704 F.2d 181, 195 (5th Cir.1983); Donovan v. Kaszycki & Sons Contractors, Inc.,
599 F.Supp. 860, 868 (S.D.N.Y.1984).
PART I:
AN OVERVIEW OF THE LAW
The Migrant and Seasonal Agricultural
Worker Protection Act (‘‘AWPA’’) is a
broad-ranging network of migrant and seasonal worker protections that requires, in
part, written and forthright disclosures, in
the workers’ language, of working conditions at the time of recruitment. It prohibits false and misleading representations
concerning employment policies and practices, housing conditions, and transportation arrangements for workers. It also
regulates housing and transportation standards for covered workers. 29 U.S.C.
§ 1801, et seq.
The AWPA was enacted in 1983 to replace Congress’ previous attempt (with the
Farm Labor Contract Registration Act of
1963 (‘‘FLCRA’’)) ‘‘to protect agricultural
workers whose employment had been historically characterized by low wages, long
hours and poor working conditionsTTTT’’
H.R. REP. NO. 97–885, at 1 (1982), reprinted in 1982 U.S.C.C.A.N. 4547. According to Congressional records, the
FLCRA ‘‘failed to reverse the historical
pattern of abuse and exploitation of migrant and seasonal farm workers,’’ 1982
U.S.C.C.A.N. 4549, and Congress reformulated its migrant and seasonal worker protections in the AWPA.10 In the Congrespanded from applying only to ‘‘farm labor
contractors’’ (under the FLCRA), to applying
to any person recruiting, employing, housing,
or transporting workers, so long as such person was either a ‘‘farm labor contractor,’’ or
one of the two newly defined entities called
‘‘agricultural employers’’ and ‘‘agricultural
associations.’’ See 29 U.S.C. § 1802(1) & (2).

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96 FEDERAL SUPPLEMENT, 2d SERIES

sional record, it is stated that, ‘‘evidence
received by the committee confirms that
many migrant and seasonal agricultural
workers remain today, as in the past, the
most abused of all workers in the United
States.’’ H.R. REP. NO. 97–885, at 2
(1982), reprinted in 1982 U.S.C.C.A.N.
4547.
The bulk of the plaintiffs’ claims arise
out of the AWPA’s statutory protections.
The specific statutory provisions of the
AWPA that are at issue in this civil action
are as follows:
1) utilization of an unregistered farm
labor contractor [29 U.S.C. §§ 1842,
1802(6) ],
2) failure to provide written disclosures
[29 U.S.C. § 1821(a) and (g) ],
3) the use of false and misleading information [29 U.S.C. §§ 1821(f) and
1854],
4) violations of the terms of the working
agreement [29 U.S.C. § 1822(c) ],
5) failure to ensure that the housing met
applicable health and safety codes [29
U.S.C.
§ 1823(a),
29
C.F.R.
§ 1910.142 et seq., 20 C.F.R. § 654.406
et seq., 29 C.F.R. § 500.130 et seq.],
6) failure to secure certification that the
housing met the applicable health and
safety codes [29 U.S.C. § 1823(b)(1) ],
7) failure to post or to provide a statement of the terms and conditions of
housing [29 U.S.C. § 1821(c) ],
8) failure to properly insure and inspect
transportation vehicles [29 U.S.C.
§ 1841(b)(1), 29 C.F.R. §§ 500.70(c),
500.100(a) ],
9) failure to ensure that each plaintiff
received a proper pay statement [29
U.S.C. § 1821(d)(2) ], and
10) ‘‘wages owed when due’’ violations
[29 U.S.C. § 1822(a), 29 C.F.R.
§ 531.35].
In the event of violation of these provisions, the AWPA provides for statutory or
actual damages, or equitable relief, at the
discretion of the court.
29 U.S.C.
§ 1854(c).
Plaintiffs also allege violations of the
minimum wage, and overtime wage, provi-

sions of the Fair Labor Standards Act, 29
U.S.C. § 201, et seq. The FLSA establishes a minimum wage, maximum working
hours, record keeping and reporting requirements, and child labor prohibitions,
as well as a system of civil and criminal
penalties for its violation.
The remainder of the plaintiffs’ claims,
for breach of contract, fraud, and negligent
misrepresentation, are based on state law.
PART II:
GENERAL APPLICABLE LIABILITY
PRINCIPLES
The distressing and deplorable conditions allegedly encountered and endured
by both groups of plaintiffs upon arriving
in Ohio stand largely unrefuted. Often
with little more than the $20.00 they were
given for food during the three day bus
ride from the Rio Grande Valley, the majority of the plaintiffs left behind their
homes and families in Texas for the promise of suitable work in Ohio. Once there,
many of the plaintiffs found themselves
sleeping on floors in bare houses or apartments, often with a dozen or more other
workers. One young woman described the
frightening experience of sleeping in a unfurnished, one-bathroom house with approximately seventeen other people, mostly men. From the stand, she expressed
her gratitude to several other male recruits, whom she had met just days before
living with them in Ohio, for their willingness to allow her to sleep between them
and the wall for protection. Another
plaintiff testified that he and his sister
were forced to sleep outside their apartment on concrete steps to escape the
stench of the raw sewage that was seeping
into their apartment. Other plaintiffs described their unremitting encounters with
cockroaches and rats. With harrowing detail, plaintiffs related the discomfort and
dangerousness of traveling to work in an
overcrowded van that not only had only
boards laid on cement blocks in lieu of
seats, but which also was filled with ex-

 CASTILLO v. CASE FARMS OF OHIO, INC.
Cite as 96 F.Supp.2d 578 (W.D.Tex. 1999)

haust fumes. For the most part, these
disturbing and unsettling accounts were
uncontested by Case Farms.
There can be no doubt that such living
and transportation conditions were appalling, and would be, in many contexts, illegal. The plaintiffs’ express challenge in
this civil action, however, was to establish
Case Farms’ liability for such conditions.
That is, before considering each of the
many statutory violations alleged by the
plaintiffs, an important threshold issue
must be resolved. Does the law allow the
plaintiffs to recover for their maltreatment
from Case Farms? Can the 1996 plaintiffs, recruited and purportedly ‘‘employed’’ by ATC, recover from Case
Farms? Can the 1997 plaintiffs, recruited
either by Case Farms and/or the Texas
Workforce Commission, hold Case Farms
liable for the wretched conditions they endured after their arrival in Pennsylvania?
I.

Case Farms’ Liability as to the 1996
Plaintiffs
A.

An Agricultural Employer’s Liability Under the AWPA

The Joint Employer Doctrine
Because a basic tenet of Case Farms’
defense is that its liability as to the 1996
plaintiffs’ claims is limited by the intermediary role of ATC, determining liability in
this civil action must begin with the oral
contract between Case Farms and ATC.
The oral agreement between Case Farms
and ATC was not complicated: Case
Farms would pay ATC for each hour of
work ATC’s recruits performed in Case
Farms’ plant. ATC’s role was simply to
recruit and supply workers. It is uncontested that ATC recruited, hired, and paid
these plaintiffs. It is also uncontested that
Case Farms did not cover the 1996 plaintiffs with a workers’ compensation policy
while they worked on Case Farms’ processing line prior to February 1996.
Based on this arrangement, by which ATC
employees worked in Case Farms’ processing plant, it is Case Farms’ position that it
cannot be held liable for any violation of
the AWPA committed by ATC.

589

In a very real sense, the history of statutory protections for migrant workers in
America is a history of Congress’s evolving
attempts to prevent agricultural owners
and operators from shielding themselves
from liability for mistreating employees.
By hiring (and thereby shifting liability to)
intermediary ‘‘independent contractors’’ to
recruit and/or oversee workers, agricultural owners have, at times, sought to create
a buffer between themselves and their
workers. See, e.g., Castillo v. Givens, 704
F.2d 181, 188 (5th Cir.1983); Charles v.
Burton, 857 F.Supp. 1574 (M.D.Ga.1994);
Haywood v. Barnes, 109 F.R.D. 568, 585
(E.D.N.C.1986); Marshall v. Presidio Valley Farms, Inc., 512 F.Supp. 1195, 1197
(W.D.Tex.1981). In the interests of justice, however, courts have frequently
‘‘pierced’’ this independent contractor
‘‘veil’’ with the invocation of the ‘‘joint employer doctrine.’’ See, e.g., Antenor v.
D&S Farms, 88 F.3d 925, 929–931 (11th
Cir.1996); Brennan v. Correa, 513 F.2d
161, 163 (8th Cir.1975).
Almost three decades ago, the Fifth Circuit formalized the joint employer doctrine
in Hodgson v. Griffin & Brand of McAllen, Inc., 471 F.2d 235 (5th Cir.1973), holding, in the context of the FLSA, that ‘‘even
if the [crew leaders] are independent contractors, this does not, as a matter of law,
negate the possibility that [a farmer] may
be a joint employer of the TTTworkers.’’ Id.
at 237. Hence, ‘‘[i]ndependent contractor
status does not necessarily imply the contractor is solely responsible for his employeesTTTT Another employer may be jointly
responsible for the contractor’s employees.’’ Id. In making such a determination,
the Fifth Circuit emphasized the importance of considering ‘‘the circumstances of
the whole activity’’ and the ‘‘economic reality’’ of the situation. Id. Thus, as stated in
another Fifth Circuit decision, the ‘‘determination of [the nature of an employment
relationship] is not circumscribed by formalistic labels or common-law notions of
the employment relationship, instead, our
analysis must focus upon the totality of the
circumstances, underscoring the economic

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96 FEDERAL SUPPLEMENT, 2d SERIES

realities of the [workers’] employment.’’
Donovan v. Sabine Irrigation Co., Inc.,
695 F.2d 190, 194 (5th Cir.1983).
Today, this potent response to agricultural employers’ attempts to avoid liability
for mistreatment of migrant workers has
been incorporated into the AWPA (via the
AWPA’s incorporation of FLSA definitions). As stated in the legislative history
of the Act, the Congressional purpose in
enacting the AWPA was ‘‘to reverse the
historical pattern of abuse and exploitation
of migrant and seasonal farm workersTTT’’
which would only be accomplished by ‘‘advanc[ing] TTT a completely new approach.’’
H. REP. No. 97–885, at 6, reprinted in
1982 U.S.C.C.A.N. 4547. The joint employer doctrine represents precisely such a
‘‘completely new approach,’’ as the AWPA
explicitly states that two or more employees may be found liable for violating its
provisions.
29 C.F.R. § 500.20(h)(5)
(1998). The doctrine is a ‘‘central foundation’’ of the AWPA, and the ‘‘indivisible
hinge between certain important duties imposed for the protection of migrant and
seasonal workers and those liable for any
breach of those duties.’’ H. REP. No. 97–
885, at 13, reprinted in 1982 U.S.C.C.A.N.
4547, 4552.
Under the AWPA regulations, ‘‘joint employment means a condition in which a
single individual stands in the relation of
an employee to two or more persons at the
same time.’’ 29 C.F.R. § 500.20(h)(5)
(1998). It is, in fact, the Fifth Circuit’s
‘‘Griffin & Brand factors’’ that are cited as
guidelines for determining the existence of
a joint employment relationship under the
AWPA. 29 C.F.R. § 500.20(h)(5)(ii) (1998).
In reference to applying the Griffin &
Brand formulation, the regulations state:
11. As previously stated, this statutory framework was created, in part, to address the alltoo-common problem of agricultural employers evading legal liability for mistreatment of
workers by the insertion of a farm labor contractor between the main employer and the
worker. E.g., Torres–Lopez v. May, 111 F.3d
633, 639–40 (9th Cir.1997); Antenor, 88 F.3d
at 932; Beliz v. W.H. McLeod & Sons Packing

Congress stated that this formulation
should be controlling in situations
‘‘where an agricultural employer TTT asserts that the agricultural workers in
question are the sole employees of an
independent contractor/crewleader,’’ and
that the ‘‘decision makes clear that even
if a farm labor contractor is found to be
a bona fide independent contractor, TTT
this status does not as a matter of law
negate the possibility that an agricultural employer may be a joint employer TTT
of the harvest workers’’ together with
the farm labor contractor. Further, regarding the joint employer doctrine and
the Griffin & Brand formulation, Congress stated that ‘‘the absence of evidence on any of the criteria listed does
not preclude a finding that an agricultural association or agricultural employer was a joint employer along with the
crewleader’’, and that ‘‘it is expected
that the special aspects of agricultural
employment be kept in mind’’ when applying the tests and criteria set forth in
the case law and legislative history.
29 C.F.R. § 500.20(h)(5)(ii) (1998). Thus,
the AWPA ‘‘envisions situations where a
single employee may have the necessary
employment relationship with not only one
employer but simultaneously such a relationship with an employer and an independent contractor.’’ Charles v. Burton, 169
F.3d 1322, 1328 (11th Cir.1999) (quoting
Antenor, 88 F.3d at 932 (quoting H.R.
REP. NO. 97–885, at 7, reprinted in 1982
U.S.C.C.A.N. 4547, 4553)).11 Again, under
the AWPA, the specific point in issue is
still the ‘‘economic reality’’ of the situation:
In determining whether or not an employment relationship exists between the
agricultural employer/association and
the agricultural worker, the ultimate
Co., 765 F.2d 1317 (5th Cir.1985); Castillo,
704 F.2d 181; Hodgson v. Okada, 472 F.2d
965 (10th Cir.1973); Hodgson v. Griffin and
Brand, 471 F.2d 235. Case Farms’ arrangement with ATC has a number of the characteristics of just such an impermissible attempt
to limit Case Farms liability for mistreatment
of its employees.

 CASTILLO v. CASE FARMS OF OHIO, INC.
Cite as 96 F.Supp.2d 578 (W.D.Tex. 1999)

question to be determined is the economic reality-whether the worker is so
economically dependent upon the agricultural employer/association as to be
considered its employee.
29 C.F.R. § 500.20(h)(5)(iii) (1998).
Case Farms and ATC as Joint Employers
[1] As is made clear from these regulations and legislative history, Congress established the structure of its migrant
worker protections through the AWPA’s
definitions. It is agreed, for the purposes
of this civil action, that Case Farms was an
‘‘agricultural
employer’’
under
the
AWPA.12 It is further agreed that ATC
was a ‘‘farm labor contractor’’ under the
statute’s definitions.13 Again, these terms
are each given broad definition.14
In spite of Case Farms’ somewhat
unique arrangement, in which it never actually passed money to the ‘‘ATC employees,’’ the economic reality of the facts at
hand clearly reveals Case Farms and ATC
to be ‘‘joint employers’’ of the ‘‘ATC employees.’’ Case Farms has apparently
stipulated to this designation. Def. Resp.
to Pl. Post–Trial Brf., at 14. Among the
factors that make this fact abundantly
clear are: (1) Case Farms exercised a high
degree of control over the 1996 plaintiffs;
(2) the plaintiffs performed a specialty job
which was an integral part of Case Farms’
overall production process; (3) Case
Farms owned and controlled the property
12. An ‘‘agricultural employer’’ is ‘‘any person
who owns or operates a farm, ranch, processing establishment, cannery, gin, packing shed
or nursery, or who produces or conditions
seed, and who either recruits, solicits, hires,
employs, furnishes, or transports any migrant
or seasonal agricultural worker.’’ 29 U.S.C.
§ 1802(2); see Mendoza v. Wight Vineyard
Management, 783 F.2d 941, 942 (9th Cir.
1986). Case Farms clearly qualifies as an
‘‘agricultural employer’’ for the purposes of
the AWPA.
13. A ‘‘farm labor contractor’’ is ‘‘any person,
other than any agricultural employer, an agricultural association, or an employee of an
agricultural employer or agricultural association, who, for any money or other valuable
consideration paid or promised to be paid,

591

and facilities where the 1996 plaintiffs’
work took place; (4) Case Farms had the
ability to determine the wage rates or the
method of payment of the 1996 plaintiffs;
(5) the terms of employment of the 1996
plaintiffs did not vary in any material way
when they were placed on Case Farms’
payroll; (6) the 1996 plaintiffs were not
part of a business organization which shifted as a unit from one workplace to another; and (7) little skill or initiative was
required to perform the chicken processing work done by the plaintiffs.
The ‘‘economic reality’’ of the ATC/Case
Farms relationship is that these workers
worked in a Case Farm plant alongside
Case Farms workers, were supervised by
Case Farms supervisors, and produced
Case Farms products. Thus, as acknowledged by Case Farms, ATC and Case
Farms were ‘‘joint employers’’ of the 1996
plaintiffs.
The Implications of Joint Employer
Status
The critical issue before this court,
therefore, is the joint employer doctrine’s
implications, rather than its definitions.
Does the fact that Case Farms and ATC
were joint employers of the 1996 plaintiffs
make Case Farms liable for ATC’s violations of the AWPA? While each specific
legal claim of the sixteen 1996 plaintiffs
will be considered below, several general
conclusions about the effects of this joint
performs any farm labor contracting activity.’’ 29 U.S.C. § 1802(7). A ‘‘farm labor
contracting activity’’is ‘‘recruiting, soliciting,
hiring, employing, furnishing, or transporting
any migrant or seasonal agricultural worker.’’
29 U.S.C. § 1802(6); see Soliz v. Plunkett, 615
F.2d 272, 275 (5th Cir.1980); Almendarez v.
Barrett–Fisher Co., 762 F.2d 1275 (5th Cir.
1985). ATC clearly qualifies as a ‘‘farm labor
contractor’’ for the purposes of the AWPA.
14. ‘‘Inherent in this expansive interpretation
is the intent of the Committee that the terms
‘employee,’ ‘employer,’ and ‘independent contractor’ not be construed in their limiting
common law sense.’’ H. REP. NO. 97–885,
at 6, reprinted in 1982 U.S.C.C.A.N. 4547,
4552.

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96 FEDERAL SUPPLEMENT, 2d SERIES

employer relationship can be made at this
point.
Case Farms is correct that ‘‘[n]owhere
in the AWPA is it stated than an agricultural employer is automatically liable for
every violation committed by a farm labor
contractor.’’ Def. Post–Trial Brf., at 3.
The AWPA does distinguish between areas
in which an agricultural employer can be
found automatically liable for a farm labor
contractor’s action, and those instances in
which it cannot. See, e.g., 29 C.F.R.
§ 500.70(b), (c) & (d) (1998).
These regulations do not, however, as
Case Farms seems to imply, preclude an
agricultural employer’s liability for housing or transportation arranged or provided by a farm labor contractor. On the
contrary, these regulations put agricultural employers on notice that they may, in
some instances, be held liable for farm
labor contractors’ violations of the AWPA.
The AWPA holds an agricultural employer automatically liable for the violations
committed by a farm labor contractor in
relation to wage issues, and the AWPA
may, in certain instances, hold an agricultural employer liable for housing and
transportation violations committed by a
farm labor contractor. See Howard v.
Malcolm, 852 F.2d 101, 106 (4th Cir.1988);
Rodriguez v. Carlson, 943 F.Supp. 1263,
1267–1268 (E.D.Wash.1996). For example, as to housing related protections, the
regulations provide that ‘‘[a]ny agricultural employerTTTwhich has a farm labor
contractor operate housing which it owns
or controls is responsible, as well as the
farm labor contractor, for insuring compli15. A similar example supporting the proposition that AWPA’s regulations are designed to
give agricultural employers notice of their
potential liability can be found in the regulations regarding transportation safety, which
provide, in part:
these regulations do not impose responsibility on an agricultural employer or agricultural association for a farm labor contractor’s failure to adhere to the safety
provisions provided in these regulations
when the farm labor contractor is providing the vehicles and directing their use.
However, when an agricultural employer or

ance with the housing safety and health
provisions of these regulations.’’ 15 29
C.F.R. § 500.70(d) (1998). See, e.g. Hernandez v. Ruiz, 812 F.Supp. 734, 735
(S.D.Tex.1993) (holding an agricultural
employer liable for housing violations under the AWPA); Adams Fruit Co., Inc.,
v. Barrett, 494 U.S. 638, 644, 110 S.Ct.
1384, 108 L.Ed.2d 585 (1990) (holding an
agricultural employer liable for transportation violations under the AWPA).
Thus, although Case Farms has acknowledged its status as a ‘‘joint employer’’ of the 1996 plaintiffs, that stipulation
by no means resolves all of the legal claims
in this civil action. Regarding certain
wage-related provisions of the AWPA,
Case Farms’ ‘‘joint employer’’ status may
indeed invoke automatic liability for ATC’s
alleged illegal actions. For other of the
plaintiffs’ claims, however, a ‘‘joint employer’’ may or may not be held liable for the
actions of a farm labor contractor. Case
Farms’ liability for the several alleged violations of the AWPA by ATC, therefore,
will depend both on the objective truth of
plaintiffs’ claims that ATC violated the
AWPA, and the standards set forth by the
specific federal regulation at issue. Consequently, each of the plaintiffs’ claims will
be considered individually.
[2] Before doing so, however, it is necessary to address another, independent
but overlapping, theory of Case Farms’
liability for ATC’s actions. Case Farms,
somewhat hyperbolically, argues that the
AWPA prohibits the plaintiffs from recovering ‘‘against Case Farms for non-wage
agricultural association specifically directs
or requests a farm labor contractor to use
the contractor’s vehicle to carry out a task
for the agricultural employer or agricultural
association, such direction constitutes causing the vehicle to be used and the agricultural employer or agricultural association is
jointly responsible with the farm labor contractor for assuring that the vehicle meets
the insurance, and safety and health provisions of these regulations.
29 C.F.R. § 500.70(c) (1998) (emphasis added).

 CASTILLO v. CASE FARMS OF OHIO, INC.
Cite as 96 F.Supp.2d 578 (W.D.Tex. 1999)

related AWPA violations unless they prove
that Case Farms itself committed the alleged violations.’’ Def. Post Tr. Brf. at 5.
Such a statement overlooks the very foundation, under the common law, for the
joint employment doctrine. Under common law agency rules, the actions of an
agent may, in certain circumstances, be
said to have been committed by the agent’s
principal.
B.

An Agricultural Employer’s Liability Under Common Law Agency Principles

[3] The fact that Congress has created
a statutory framework of protections for
migrant workers in no way exempts agricultural employers, recruiters, and overseers from common law agency principles.
Montelongo v. Meese, 803 F.2d 1341, 1349
(5th Cir.1986) (agency principles apply fully under the FLCRA, the predecessor to
the AWPA); Escobar v. Baker, 814
F.Supp. 1491, 1503–04 (W.D.Wash.1993),
citing Bueno v. Mattner, 829 F.2d 1380,
1384 (6th Cir.1987). Rather, the protections afforded by the AWPA are designed
to supplement traditional common law
principles. H.R. REP. NO. 97–885, at 7,
reprinted in 1982 U.S.C.C.A.N. at 4560.
Thus, one theory under which the plaintiffs
could prove that Case Farms itself committed the alleged violations would be to
demonstrate that the ATC defendants’
misdeeds were committed by ATC within
the scope of its role as an agent of Case
Farms.
ATC’s Agency
Plaintiffs’ supplementary theory of Case
Farms liability is, therefore, based on traditional, pre-AWPA common law tenets of
agency. Plaintiffs argue that an agency
relationship existed between ATC and
Case Farms, and that the scope of that
relationship included both the express authority to recruit and hire people to work
at Case Farms’ plant, and the implied
authority to do all things proper, usual,
and necessary to exercise that authority.
Case Farms responds that to the extent
any agency relationship existed between

593

ATC and Case Farms, the scope of that
agency was limited solely to informing recruits about the availability of work in
Ohio at Case Farms’ processing plant.
[4, 5] The fundamental precepts of the
law of agency are well settled. At common law, a principal may be held liable for
the acts of its purported agent based on an
actual agency relationship created by the
principal’s express or implied delegation of
authority to the agent. Wells Fargo Business v. Ben Kozloff, Inc., 695 F.2d 940,
944–45 (5th Cir.1983); Esso Intern., Inc. v.
S.S. Captain John, 443 F.2d 1144, 1146
(5th Cir.1971). Both forms of agency are
at issue here. Express actual authority
exists ‘‘where the principal has made it
clear to the agent that he [or she] wants
the act under scrutiny to be done.’’ Pasant v. Jackson Nat’l Life Ins. Co., 52 F.3d
94, 97 (5th Cir.1995). Further, giving an
agent express authority to undertake a
certain act also includes the implied authority to do all things proper, usual, and
necessary to exercise that express authority. Sheet Metal Workers Local Union 54
v. E.F. Etie Sheet Metal Co., 1 F.3d 1464,
1471 (5th Cir.1993); Mechanical Wholesale, Inc. v. Universal–Rundle Corp., 432
F.2d 228, 230–31 (5th Cir.1970) (‘‘An agent
has apparent or implied authority to do
those things which are usual and proper to
conduct business which he is employed to
conduct.’’)
[6] Applying these principles, the
plaintiffs assert that the scope of the agency relationship between Case Farms and
ATC expressly authorized ATC to recruit
and hire people to work at Case Farms’
Ohio plant. Such a contention is certainly
well-supported by the evidence. Former
Case Farms’ Director of Corporate Development, Andy Cilona, among others, testified that ‘‘the arrangement with ATC was
for it to hire workers for Case Farms’
production.’’ Cilona Examination Tr. at
27–28; see Trial Tr. at 579, 598. Based on
Case Farms’ explicit agreement with ATC,
it is found, by a preponderance of the
evidence, that such an express agency relationship, the scope of which included re-

 594

96 FEDERAL SUPPLEMENT, 2d SERIES

cruiting and hiring migrant workers to
perform jobs at Case Farms’ plant, did
exist between Case Farms and ATC.
[7, 8] A principal is liable for the actions of an agent only if those actions are
taken in the scope of the agent’s employment. See, Entente Mineral Co., v. Parker, 956 F.2d 524, 526 (5th Cir.1992); see
also RESTATEMENT (SECOND) OF AGENCY
§ 228 (1958). While Case Farms acknowledges that ATC was expressly authorized
to recruit and hire workers for its plant,
the chicken processing company maintains
that the scope of that relationship was
extremely narrow, and that the vagueness
of the plaintiffs’ claim that ATC was Case
Farms’ agent glosses over the exact nature
of the relationship between ATC and Case
Farms.16 The plaintiffs, on the other
hand, argue that the scope of ATC’s express authority to recruit and hire people
to work at Case Farms’ plant included the
implied authority to do all things proper,
usual, and necessary to exercise that authority. See, Wells Fargo Business Credit
v. Ben Kozloff, Inc., 695 F.2d 940, 945 (5th
Cir.1983).
A preponderance of the evidence supports the plaintiffs’ contention. Credible
evidence, adduced at trial, reveals that
housing and transportation issues were
well within the class of activities proper,
usual, and necessary to recruit and hire
workers for Case Farms’ Ohio processing
plant. It is uncontested that the combination of its high turnover rate,17 and relative
isolation from metropolitan areas,18 complicates Case Farms’ recruitment process.
For Case Farms, recruitment was, at all
relevant times, an on-going, virtually nation-wide undertaking. The very fact that
this Ohio chicken processing plant was re16. This court again notes with some astonishment that the entire relationship between
Case Farms and ATC was oral. No written
contract or record of this agreement exists.
Such an agreement, of course, would have
been invaluable in the resolution of these issues.
17. Pursuant to a Stipulated Protective Order
provided to this court on December 21, 1998,
exhibits and affidavits containing turn-over

cruiting workers in Florida and Texas attests to the difficulties it faces finding
workers. Furthermore, once the workers
arrived in Ohio, it was difficult for workers
to find housing on their own because of
language barriers, lack of personal transportation, and their unfamiliarity with the
area. So, it was essential to the success of
Case Farms’ hiring practices to assist outof-state workers with housing. Cilona Examination Tr. at 15–18, 21–22. Case
Farms, before any relationship with ATC,
actually did assist incoming workers with
housing and transportation in Ohio. Cilona
Ex. Tr. at 28. Furthermore, it was clear
from the evidence adduced at trial that
Case Farms meant for ATC to perform
these duties. Trial Tr. at 598; Cilona Ex.
Tr. at 28. Thus, it is found that Case
Farms knew that these duties were proper, usual, and necessary in order to recruit
and retain a workforce primarily migrating
from out-of-state.
Case Farms points out, and places much
weight on the fact, that its representatives
Cilona and Kohli both testified that ATC
was not authorized to hire workers and
make them full fledged ‘‘Case Farms’’ employees. Def. Resp. to Pl. Post–Trial Brf.
at 3. Rather, under the arrangement with
ATC, the workers would supposedly remain ‘‘ATC employees,’’ despite the fact
that they worked in the Case Farms plant,
doing the same work, at the same rate of
pay, under the supervision of the same
supervisors, as Case Farms workers.
Whether or not a plaintiff would become
a ‘‘full-fledged’’ Case Farms employee,
however, cannot be dispositive of the agency issue at hand. At issue in this civil
action is precisely the question of whether
superficial differences (such as which comrates have been filed under seal as summary
judgment Exhibits 36–38.
18. Among the factors presented as contributing to the high turnover rates at the Ohio
plant are its location 30 to 40 miles from
Canton, Ohio (where the closest practical
housing is located), Cilona Dep., at 93–95,
and its isolation in the midst of several Amish
and Mennonite communities, Kohli Dep., at
112–113.

 CASTILLO v. CASE FARMS OF OHIO, INC.
Cite as 96 F.Supp.2d 578 (W.D.Tex. 1999)

pany’s name appeared on a plaintiff’s pay
stub) somehow immunize the company that
owns and operates the plant from liability.
Given the fact that housing and transportation were necessary components of Case
Farms’ recruitment process, ATC’s actions
in those arenas were within the scope of its
relationship as an agent of Case Farms.
[9] For the foregoing reasons, it is
found that the ATC defendants were clearly acting as Case Farms’ agent in all of
their actions relating to the recruitment
and hiring of workers for Case Farms’
chicken processing plant in Winesburg,
Ohio. And, under the AWPA, recruitment
by an agricultural employer includes recruitment through an agent. H.R. RPT.
No. 97–885, at 14, reprinted in 1982
U.S.C.C.A.N. 4560; Bueno, 829 F.2d 1380;
Montelongo, 803 F.2d 1341. Hence, ATC’s
interactions with the 1996 plaintiffs may be
attributed to Case Farms for the purpose
of assessing compliance with AWPA.
Hernandez’s Agency
[10] Another threshold issue, that
should be resolved before the individual
legal claims are considered, is whether
Case Farms may be held responsible for
the actions of Alvaro Hernandez. The evidence shows that Case Farms’ own employee, Alvaro Hernandez, who also apparently worked for ATC, had express and
implied authority to assist ATC workers
with housing and transportation.
Alvaro Hernandez was a line leader supervisor at the Case Farms’ plant.19 ATC
provided recruits with Hernandez’s phone
number and instructed them to call him
upon their arrival in Ohio. As an example
of his role at the plant, credible evidence
19. Hernandez’s status as a line leader supervisor was denoted by his yellow hat. Trial Tr.
at 137–138.
20. Alvaro Hernandez was one of several individuals who operated their own transportation services in which they would charge
workers for a ride to work. Case Farms did
not own any of the vans used to transport
recruits.

595

was presented that Alvaro Hernandez took
plaintiffs Martin Hernandez and his sister,
Esperanza Hernandez, to the plant on
their first day of work, issued them their
supplies, showed them how to punch in
their time cards, and showed them where
they would be working. Trial Tr. at 33–
35. Alvaro Hernandez also assisted those
two plaintiffs with obtaining a shift change,
and with receiving their pay in cash.
Similarly, Case Farms employee Alvaro
Hernandez took an active and prominent
role in situating plaintiff (and ‘‘ATC employee’’) Michelle Galvan upon her arrival
in Ohio. Galvan first spoke with a Case
Farms employee named ‘‘Shelly.’’ Trial
Tr. at 115–116. When Hernandez arrived
at the plant, he told Galvan that he would
take Galvan and her companions to a trailer, but that it had no electricity. Trial Tr.
at 117. Galvan told Hernandez that she
and the others preferred to stay at the
plant rather than be put in a place without
heat or electricity. Trial Tr. at 117. Hernandez responded that he had another
house. Trial Tr. at 119. Galvan understood from Hernandez that the housing he
put her in was temporary and that he
would find another house for her and the
other women, but he never did. Trial Tr.
at 121. Galvan also testified that she understood from Hernandez that the van in
which he drove her and others to and from
work belonged to Case Farms. Trial Tr.
at 135, 137. Galvan complained repeatedly
to several Case Farms supervisors about
the housing and the rides to work.20 Trial
Tr. at 138–39. On at least one occasion,
Case Farms’ Human Resources Director,
Andy Cilona, told her to speak to Hernandez about the problem. Trial Tr. at 139.21
21. In a particularly telling anecdote, Galvan
asked Hernandez to take her to the store to
buy food after she had received her first paycheck, but Hernandez refused. Trial Tr. at
170. After she complained to a Case Farms
supervisor, Galvan was taken by Hernandez
to buy groceries. Trial Tr. at 170–171. In
another incident, Galvan accompanied a coworker (who had also been recruited by ATC
in Texas) to Case Farms to seek medical assistance. Trial Tr. at 167–69. Galvan spoke with
several Case Farm’s employees, including Ci-

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96 FEDERAL SUPPLEMENT, 2d SERIES

These facts indicate that Alvaro Hernandez was working as an agent of Case
Farms.
As it did in with respect to ATC’s role,
Case Farms contends that the scope of
Alvaro Hernandez’s role was too limited to
establish his role as an agent regarding
these actions. Case Farms points to Cilona’s testimony that Hernandez’s job duties
as a Case Farms employee did not include
assisting ATC’s employees outside the
workplace. Case Farms’s contention that
‘‘Mr. Cilona’s testimony that any actions
taken by Mr. Hernandez with respect to
ATC’s employees were not authorized by
Case Farms, or within the scope of Mr.
Hernandez’s job duties at Case Farms remains unchallenged.’’ Def. Resp. to Pl.
Post–Trial Brf. at 23. Alvaro Hernandez
did assist workers in finding housing for
Case Farms, however. What activities
were ultimately within the scope of that
agency relationship, is a question for the
court, not for Cilona.
For the purposes of determining his status as an agent of Case Farms, it is necessary to examine the actual instances of
instruction from his supervisors and actual
actions taken by Hernandez, rather than
his theoretical job description. The fact
that an agent’s action, directed and approved by a principal, is not included in
the agent’s descriptive job summary does
not immunize the principal from liability.
The alleged agent’s actual conduct, rather
than his official descriptive duties, can establish liability of a principal for its agent’s
actions. From his actions, it is determined
that Alvaro Hernandez was, in fact, working as an agent of Case Farms, along with
agent ATC.
lona. Cilona reportedly instructed another
worker to call the hospital and let them know
that two Case Farms employees were on their
way, and another Case Farms employee reportedly ordered Hernandez to take Galvan
and her companion to the hospital. Hernandez reportedly informed the receptionist at
the hospital that he was dropping off two
Case Farms’ employees. Trial Tr. at 168–169.
Case Farms rebuts the implications of these
incidents by asserting that Hernandez was

Furthermore, Case Farms’ proposition
that Hernandez’s daily transportation of
ATC employees to and from work was
performed as an ATC employee, not a
Case Farms employee, begs the question
of Hernandez’s apparent authority to act
on Case Farms’ behalf.22 Whether he was
working for ATC (an agent of Case
Farms) or for Case Farms, his actions can,
under common law agency principles, be
attributed to Case Farms.
Based on the totality of the credible
evidence adduced at trial, it is determined
that Alvaro Hernandez was acting under
the authorization and direction of Case
Farms’ employees, and that the functions
he carried out with respect to the 1996
plaintiffs were done in his capacity as a
Case Farms employee; thus, he was, perforce, an agent of Case Farms. In those
instances where Hernandez may have acted on his own behalf for ATC, he would
still be an agent of Case Farms via ATC.
Case Farms may, therefore, be held responsible for Hernandez’s housing and
transportation activities in relation to the
1996 plaintiffs.
C.

Case Farms’ Liability for the Actions of ATC and Alvaro Hernandez

It is against the background of these
general principles of liability that the
many claims brought by the 1996 plaintiffs
in this civil action will be considered. The
AWPA makes clear that Case Farms, as
an agricultural employer and a joint employer of the 1996 plaintiffs, may be held
liable for the actions, in certain instances,
of its ‘‘farm labor contractor,’’ ATC. At the
same time, ATC’s actions, under common
law precepts of agency, can be attributed
merely doing a ‘‘decent’’ or ‘‘courteous’’ favor
for the plaintiffs. The purported good will of
Hernandez or Case Farms does not change
the fact that Hernandez’s actions may be legally said to have been the actions of Case
Farms.
22. The fact that some of the 1996 plaintiffs
identified Alvaro Hernandez as an employee
of ATC is similarly nondispositive of the agency issue.

 CASTILLO v. CASE FARMS OF OHIO, INC.
Cite as 96 F.Supp.2d 578 (W.D.Tex. 1999)

directly to Case Farms for the purpose of
assessing compliance with the AWPA. The
combined effect of the AWPA’s statutory
worker protections, and these common law
principles, is that ‘‘[d]efendants cannot escape liability under the Act, by arguing
that they never explicitly authorized others
to perform farm labor contracting activities [i.e., recruiting, housing, and transporting] on their behalf when they accepted the benefit of migrant labor brought to
their farm by other workers,’’ Bueno, 829
F.2d 1380, 1384, and when such activities
were necessary components of ATC’s
agency.
II.

Case Farms’ Liability as to the 1997
Plaintiffs

The 1997 plaintiffs were recruited, generally speaking, by Case Farms’ employee
Andy Cilona. Given the absence of an
intermediary (like ATC) in the recruitment
of these plaintiffs, the issues of Case
Farms’ potential liability for AWPA violations is much more straightforward.23
Case Farms accepts responsibility for the
actions of its agent Andy Cilona. The
battleground for the 1997 plaintiffs, therefore, is largely factual, and will be addressed in the context of each legal claim
brought by this group of plaintiffs.
PART III:
ALLEGED VIOLATIONS
OF THE AWPA
The two sets of plaintiffs have brought
three types of legal claims. The first, and
most extensive, involves alleged violations
of the Migrant and Seasonal Agricultural
Worker Protection Act, 29 U.S.C. § 1801,
et seq. This statute establishes wide-rang23. An exception to this proposition is the involvement of Texas Workforce Commission
employee Albert Garcia. The effect of his
actions on Case Farms’ liability will be discussed in the context of each relevant legal
claim set out hereafter.
24.

In its entirety, 29 U.S.C. § 1842 provides:
No person shall utilize the services of any
farm labor contractor to supply any migrant or seasonal agricultural worker unless the person first takes reasonable steps

597

ing protections and remedies for migrant
and seasonal workers through its regulation of, and requirements for, agricultural
employers and farm labor contractors.
Plaintiffs have brought claims under ten
separate provisions of the AWPA.
I.

Unregistered Farm Labor Contractors: Alleged Violations of 29 U.S.C.
§ 1842
A.

The Law

[11] One of the central functions of the
AWPA is its creation and implementation
of a registration system for entities that
recruit workers covered under the Act.
The AWPA prohibits an employer’s utilization of the services of a farm labor contractor to supply any migrant or seasonal
agricultural worker without first taking
reasonable steps to determine that the
farm labor contractor possesses a certificate of registration which is valid, and
which authorizes the activity for which the
contractor is utilized. 29 U.S.C. § 1842.24
The purpose of this provision is to make
the employer who uses a farm labor contractor (and not just the contractor) liable
for guaranteeing the contractor’s compliance with the housing and transportation
safety protections of the AWPA. See
Charles, 169 F.3d at 1328; Howard v.
Malcolm, 852 F.2d 101 (4th Cir.1988).
As mentioned above, Case Farms has
stipulated that ATC qualifies as a ‘‘farm
labor contractor’’ under the AWPA. It is
undisputed that ATC recruited, hired, employed, and furnished the 1996 plaintiffs
and other migrant workers for work at
Case Farms. Uncon. Facts ¶ 36. Furthermore, the evidence adduced at trial
reveals that Case Farms utilized ATC for
to determine that the farm labor contractor
possesses a certificate of registration which
is valid and which authorizes the activity
for which the contractor is utilized. In
making that determination, the person may
rely upon either possession of a certificate
of registration, or confirmation of such registration by the Department of Labor. The
Secretary shall maintain a central public
registry of all persons issued a certificate of
registration.

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96 FEDERAL SUPPLEMENT, 2d SERIES

the specific purposes of recruiting, soliciting, hiring, employing, and furnishing
workers. These are all ‘‘farm labor contracting activities’’ as defined by the
AWPA. 29 U.S.C. § 1802(6). Case Farms
clearly provided ATC valuable consideration, in the form of $8.00 per hour of work
performed by each worker, in return for
its services.25
Case Farms also does not dispute that
ATC was not registered with the United
States Department of Labor (‘‘DOL’’) as a
farm labor contractor. Nor was ATC authorized by DOL to house or transport
workers. See Trial Exh. P–47. In most
instances, compliance with this threshold
requirement will ensure an agricultural
employer’s conformity with the AWPA
generally. It is clear that if Case Farms
had taken any steps to verify ATC’s registration or authorization to house or
transport workers, this civil action would
probably not have been filed. The harms
allegedly suffered by the plaintiffs in this
civil action stem from precisely the types
of mistreatment that the AWPA’s registration requirements are designed to prevent.
B.

The 1996 Plaintiffs

Case Farms concedes that it did not
determine whether ATC possessed a valid
25. Cilona and Kohli testified that ATC was
compensated, as per the oral agreement, at a
rate of $8.00 per hour for every hour that an
ATC worker worked in the Case Farms plant
up to 40 hours in a workweek, and a rate of
$12.00 per hour for every hour that an ATC
worker worked in excess of 40 hours in a
single workweek. Trial Tr. at 579; Cilona
Examination Tr. at 56, 88.
26. The factual bases for this concession are
presented at Tab 1 of the Plaintiffs’ Amended
Post–Trial Brief.
27. The relevant provision of the AWPA prescribes the following:
Each farm labor contractor, agricultural
worker, and agricultural association which
recruits any migrant agricultural worker
shall ascertain and disclose in writing to
each such worker who is recruited for employment the following information at the
time of the worker’s recruitment:

certificate of registration.26 Plaintiffs Eloy
Cantu, Gerardo Castillo, Edna Mae Chong,
Efrain Leal, Rafael Gonzalez, Sergio Hernandez, Jose Estrada, Martin Hernandez,
Esperanza Hernandez, Joseph Cooper,
Hugo Hernandez, Jesus Mejia, Guadalupe
Zamorano. Ricard Zamorano, Raul Zavala, and Michelle Galvan, therefore, have
established a violation of 29 U.S.C.
§ 1821(a). These plaintiffs’ entitlement to
damages for these violations will be considered, infra, Part III, Section XI.
C.

The 1997 Plaintiffs

ATC’s registration is not at issue in
regards to the 1997 plaintiffs. Because
none of the 1997 plaintiffs were recruited
by ATC, they have no valid claim under 29
U.S.C. § 1842.
II. Written Disclosures: Alleged Violations of 29 U.S.C. § 1821(a)
A.

The Law

As part of its overarching purpose of
assuring ‘‘necessary protections for migrant and seasonal workers,’’ 29 U.S.C.
§ 1801, the AWPA dictates what information each agricultural employer must ascertain, and disclose in writing, to migrant
workers at the time of recruitment. 29
U.S.C. § 1821(a).27 Contreras v. Mt.
(1) the place of employment;
(2) the wage rates to be paid;
(3) the crops and kinds of activities on
which the worker may be employed;
(4) the period of employment;
(5) the transportation, housing, and any
other employee benefits to be provided, if
any, and any costs to be charged for each
of them;
(6) the existence of any strike or other concerted work stoppage, slowdown, or interruption of operations by employees at
the place of employment;
(7) the existence of any arrangements with
any owner or agent of any establishment
in the area of employment under which
the farm labor contractor, the agricultural employer, or the agricultural association is to receive a commission or any
other benefit resulting from any sales by
such establishment to the workers; and
(8) whether state workers’ compensation
insurance is provided, and, if so, the

 CASTILLO v. CASE FARMS OF OHIO, INC.
Cite as 96 F.Supp.2d 578 (W.D.Tex. 1999)

Adams Orchard Corp., 744 F.Supp. 1007
(E.D.Wash.1990); Rodriguez v. Jackson,
1988 WL 150697, 110 Lab. Cas. (CCH)
¶ 35,137 (D.Ariz.1988);
Escobar, 814
F.Supp. at 1503. The AWPA also demands that such written disclosures be
provided in a language commonly understood by the migrant agricultural workers.
29 U.S.C. § 1821(g). In this civil action,
many of the plaintiff migrant workers
speak only Spanish.
Although the particular shortcomings of
Case Farms’ disclosures to each particular
plaintiff, if any, must be culled independently from the evidence before this court,
the plaintiffs allege, generally, that Case
Farms, at times through its agent ATC,
failed to comply with this provision of the
AWPA by neglecting to provide the plaintiffs with various legally-mandated written
disclosures. Case Farms’ response to this
allegation is, first, that many of the plaintiffs did not establish that they failed to
receive written disclosures, and, second,
that such disclosures were, in this instance,
as to the 1996 plaintiffs, the responsibility
of ATC, not of Case Farms.
B.

The 1996 Plaintiffs

[12] Case Farms contends that even if
the 1996 plaintiffs had produced evidence
that they did not receive the required written disclosures, Case Farms would not be
liable under the AWPA, because 29 U.S.C.
§ 1821(a) refers only to entities that ‘‘recruit’’ workers (such as ATC), not to all
entities that employ those workers (such
as Case Farms). Such an argument fails,
however, for two reasons. First, as has
already been detailed, in its recruitment
name of the state workers’ compensation
insurance carrier, the name of the policyholder of such insurance, the name and
the telephone number of each person
who must be notified of an injury or
death, and the time period in which such
notice must be given.
29 U.S.C. § 1821(a).
28. The fact that common law principles of
agency require this court to conflate the roles
of ATC and Case Farms in the recruitment
and employment of the plaintiffs in this civil

599

and hiring of the plaintiffs in this civil
action, ATC was acting within the scope of
its duties as an agent of Case Farms. In
effect, this agency relationship erases the
superficial, if not wholly artificial, delineation between Case Farms and ATC that is
repeatedly urged by the defendant.28
Second, although the term ‘‘recruit’’ is
not defined by the AWPA,29 its meaning
was clearly meant to be expansive. The
meaning of the term ‘‘recruits,’’ according
to the AWPA’s legislative history, ‘‘runs
the spectrum from the actual pre-employment discussions between the recruiter
and the migrant worker to the filing of job
orders with the interstate recruitment system established by the Wagner–Peyser
Act.’’ H.R. REP. No. 97–885 at 13, reprinted in 1982 U.S.C.C.A.N. at 4559. ‘‘Recruit,’’ simply and directly stated, means
‘‘to hire or otherwise obtain or secure the
services ofTTT and include[s] all pre-employment discussions that relate to a worker’s employment.’’ Contreras, 744 F.Supp.
1007. ‘‘Recruit’’ also includes indirect recruitment in the form of word-of mouth
recruitment through other workers.
Flores v. Rios, 36 F.3d 507, 514–15 (6th
Cir.1994); Rodriguez v. Jackson, 1988 WL
150697, 110 Lab. Cas. (CCH) ¶ 35, 137
(D.Ariz.1988). The AWPA intended agricultural employers to be liable for acts of
recruiting when using a third party or
intermediary, since recruitment by an agricultural employer also includes recruitment by an agent. 1982 U.S.C.C.A.N. at
4560; Montelongo, 803 F.2d 1341; Soliz,
615 F.2d at 276.
action makes moot Case Farms’ several arguments pointing out the AWPA’s differing requirements of agricultural employers and
farm labor contractors.
29. As the AWPA itself does not define the
term ‘‘recruit,’’ the term should be given its
ordinary meaning. In the unabridged edition
of Webster’s New International Dictionary,
the word ‘‘recruit’’ is defined as ‘‘to hire or
otherwise obtain to perform services.’’ Soliz
v. Plunkett, 615 F.2d 272, 276 (5th Cir.1980).

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96 FEDERAL SUPPLEMENT, 2d SERIES

Under even a relatively narrow definition of ‘‘recruit,’’ ATC was involved in the
recruitment of workers under 29 U.S.C.
§ 1821(a). ATC caused radio advertisements to be broadcast inviting interested
individuals to information sessions at a
hotel. ATC explained the job opportunities to the 1996 plaintiffs, and, in many
instances, put them on a bus to Ohio. It is
beyond contention that ATC recruited the
1996 plaintiffs.

ant document easily meets the plaintiff’s
burden of showing, by a preponderance of
the evidence, that he or she did not receive
the mandated information.

Case Farms also contends that the
plaintiffs have not, as a factual matter, met
their burdens of proof, alleging that only
two of the 1996 Plaintiffs, Rafael Gonzalez
and Joseph Cooper, ‘‘testified that they
were not provided with a written disclosure form by ATC in Texas.’’ Def. Post–
Tr. Brf. at 12. This statement, by itself,
is misleading. Although not all of the 1996
plaintiffs testified that they did not receive
the required disclosures, many of them did
testify that the documents they were given
were limited to a pamphlet showing a map
and phone number. A document substantially similar, if not replicating, this pamphlet was admitted into evidence as Plaintiff’s Exhibit 1.30 Uncontroverted evidence
that a plaintiff received only a non-compli-

Hence, the following findings of fact and
conclusions of law are warranted:
Eloy Cantu. Plaintiff Cantu, via his
depositions, testified that the only papers he received when he was recruited
was a paper with a Florida telephone
number on it. Cantu Dep. at 10–11.
Case Farms presented no evidence to
the contrary. It is found, therefore, by
a preponderance of the evidence, that
Case Farms failed to provide Cantu with
the written disclosures required by
AWPA, under 29 U.S.C. § 1821(a).
Gerardo Castillo and Efrain Leal.
When they were recruited, plaintiffs
Castillo and Leal were provided only a
document that was very similar to Plaintiff’s Exhibit 1 mentioned above. Castillo Dep. at 26. It is found, therefore, by
a preponderance of the evidence, that
Case Farms failed to provide Castillo
and Leal with the written disclosures
required by the AWPA, as provided by
29 U.S.C. § 1821(a).
Edna Mae Chong (representing the
estate of Josephine Tijerina) and Michelle Galvan. Plaintiff Galvan provided uncontested testimony that the only
written document she and Tijerina received at the time they were recruited to
work for Case Farms was a document
similar to Plaintiff’s Exhibit 1. Trial Tr.
at 111. It is found by a preponderance
of the evidence, that Case Farms failed
to provide Tijerina and Galvan with the
written disclosures required by AWPA,
under 29 U.S.C. § 1821(a).
Rafael Gonzalez. This plaintiff testified by deposition that when he was
recruited to work in Ohio, he did not

30. This one-page, one-column document is titled ‘‘Holmes County: Home of the Amish,’’
and would be more appropriately described
as an advertising flyer for chicken buyers than
a work-available announcement. It describes
Case Farms’ chickens as having ‘‘been raised
the old-fashioned way with tender loving care

in Ohio’s Amish country,’’ and provides a
map, centered around Millersburg, Ohio,
showing routes to Winesburg, Ohio. On the
copies entered into evidence, the 800–number
printed on the flyer is crossed out and two
800 numbers in Florida, and another number
for ‘‘Alvaro’’ are written in.

Thus, based on the fact that ATC’s actions to recruit and hire workers are, under the common law, attributable to Case
Farms, it is determined that, as a matter
of law, Case Farms ‘‘recruited’’ the 1996
Plaintiffs. ‘‘The duty [to provide written
disclosures], while contingent on the activity of the recruitment, is not exclusive to
one entity in the chain between the agricultural worker and the ultimate employer,
although each entity need not independently provide such information.’’ 1982
U.S.C.C.A.N. at 4560. Case Farms can,
therefore, be held liable for violation of 29
U.S.C. § 1821(a), if a plaintiff meets his or
her burden of proof.

 CASTILLO v. CASE FARMS OF OHIO, INC.
Cite as 96 F.Supp.2d 578 (W.D.Tex. 1999)

receive any papers. R. Gonzalez Dep. at
11, 16–17. Defendant Case Farms did
not contest this testimony. It is found
by a preponderance of the evidence that
Case Farms failed to provide Gonzalez
with the written disclosures required by
AWPA, under 29 U.S.C. § 1821(a).
Sergio Hernandez. Plaintiff Hernandez testified that he received only one
piece of paper when he was recruited in
McAllen, Texas, to work for Case
Farms. S. Hernandez Dep. at 12–13.
Although this plaintiff’s testimony is
lacking in detail, the plaintiff asks this
court to infer that this paper was similar
to Plaintiff’s Exhibit 1. Case Farms argues that such an inference would be
‘‘rank speculation,’’ and that if this plaintiff had not received the required disclosures, he could have included that in his
testimony. In the context of the whole
of the many plaintiffs’ evidence before
the court, it is certainly more likely than
not that this one page document was the
same one-page, non-compliant flyer that
each of the other plaintiffs received.
The fact that the merit of each plaintiff’s
individual claims must be considered
separately does not mean that each
plaintiff’s testimony must be viewed in
isolation. It is found by a preponderance of the evidence, that Case Farms
failed to provide Hernandez with the
written disclosures required by 29
U.S.C. § 1821.
Jose Estrada. This plaintiff testified
by deposition that when he was recruited to work in Ohio, he did not receive
any papers. There was no evidence to
the contrary. Estrada Dep. at 11. It is
found by a preponderance of the evidence, that Case Farms failed to provide
Estrada with the written disclosures required by AWPA, 29 U.S.C. § 1821(a).
Martin Hernandez and Esperanza
Hernandez. Plaintiff Hernandez testified as to his experience, and that of his
sister, Esperanza Hernandez. He testified that the only document he received
when he was recruited was that represented by Plaintiff’s Exhibit 1. Trial Tr.
at 18–19. It is found by a preponder-

601

ance of the evidence, that Case Farms
failed to provide Martin Hernandez and
Esperanza Hernandez with the written
disclosures required by 29 U.S.C.
§ 1821(a).
Joseph Cooper. Plaintiff Cooper also
testified that he received only a document like the ‘‘Amish Country’’ flyer
entered as Plaintiff’s Exhibit 1. Case
Farms did not contest this testimony.
It is found by a preponderance of the
evidence, that Case Farms failed to provide Cooper with the written disclosures
required by AWPA.
Guadalupe Zamorano, Ricardo Zamorano, Hugo Hernandez, and Raul
Zavala. Plaintiff Guadalupe Zamorano
testified that the only document he received was a map with Alvaro’s name on
it, and that he was not provided with
any written information about work. G.
Zamorano Aff. ¶ 2; G. Zamorano Dep. at
23. Guadalupe Zamorano also testified
that he, Hugo Hernandez, Ricardo Zamorano, and Raul Zavala were recruited
together, and that the only documentation they received was that which is
represented by Plaintiff’s Exhibit 1. Defendant’s claim that Guadalupe Zamorano’s testimony is unclear as to who was
in the room is found to be without merit.
Ricard Zamorano clearly used the
phrase ‘‘all of us’’ to refer to this group
of plaintiffs. R. Zamorano at 23. The
combination of the testimony of witnesses and circumstantial evidence illustrates to the court’s satisfaction that
these plaintiffs received the same, nonAWPA-compliant flyer. It is found by a
preponderance of the evidence, that
Case Farms failed to provide Guadalupe
Zamorano, Ricard Zamorano, Hernandez and Zavala and with the written
disclosures required by AWPA, under 29
U.S.C. § 1821(a).
Jesus Mejia. Case Farms did not
dispute Mejia’s testimony that when he
was recruited in McAllen, Texas, to
work in Ohio, he was not shown or given
any written documents. It is found by a
preponderance of the evidence, that

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96 FEDERAL SUPPLEMENT, 2d SERIES

Case Farms failed to provide Mejia with
the written disclosures required by
AWPA under 29 U.S.C. § 1821(a).
C.

The 1997 Plaintiffs

The 1997 plaintiffs’ claims that Case
Farms violated 29 U.S.C. § 1821(a) are
complicated by the fact that not all of this
group were recruited in the same manner.31 Case Farms has presented general
defenses to the 1997 plaintiffs’ allegations
regarding 29 U.S.C. § 1821(a) by grouping
the plaintiffs according to how they were
recruited.
For example, two plaintiffs, Aurora Navarro and Urbana Zavala, went directly to
Case Farms from another workplace in
Ohio. A. Navarro Dep. at 15–16; U. Zavala
Dep. at 36–38. Case Farms maintains that
these plaintiffs were not recruited, ‘‘in any
sense of the word, by anybody,’’ and that
they ‘‘both admittedly never spoke to neither Cilona nor Garcia regarding work at
Case Farms.’’ Def. Post–Trial Brf. at 15.
This proposition is not, however, supported
by the evidence. Both of these plaintiffs
did speak to Cilona prior to their employment with Case Farms. Zavala Aff. ¶ 3.
Furthermore, as has been discussed previously, the legislative history of the
AWPA indicates that recruitment covers a
broad range of times and activities. Recruitment can certainly occur en route to
another job. See 1982 U.S.C.C.A.N. at
4560. According to the uncontested testimony of Urbana Zavala, she and Aurora
Navarro were told by Cilona about housing
and transportation arrangements at Case
Farms while in the car with Cilona after
31. Plaintiffs G. Cabellero, Carlos Gonzalez,
Jose Guevara, Daniel Leura, Tomas Solis and
former plaintiff Cruz Martinez were recruited
by then-Case Farms employee Andy Cilona in
Eagle Pass, Texas. Plaintiffs Estela Carreon,
Juan Jimenez, Carlos Reyna, and Israel Trevino learned of Case Farms through Alberto
Garcia, of the Texas Workforce Commission.
Two others, A. Navarro and Urbana Zavala
went directly to Case Farms from another
workplace in Ohio.
32. Once again, the Act’s legislative history
indicates that the term ‘‘recruits’’ encompass-

he picked them up in Chillicothe, Ohio.
Zavala Aff. ¶ 3.
[13] Case Farms correctly contends,
however, that the evidence indicates that
both Aurora Navarro and Urbana Zavala
‘‘had made the decision to become employed at Case Farms without ever having
met either Mr. Garcia or Mr. Cilona.’’
Def. Post–Trial Brf. at 15. The question
before this court, therefore, is whether the
AWPA disclosure requirements apply
when the worker decides, independently of
any action on the part of the agricultural
employer, on his or her own to come work
for that employer.
In light of the intended broad definition
of ‘‘recruit’’ under the AWPA discussed
earlier,32 ‘‘recruit’’ should not be limited to
a meaning that includes changing a worker’s mind. Rather, ‘‘to recruit’’ should be
given its dictionary meaning of ‘‘to secure
the services ofTTTT’’ Webster’s New Collegiate Dictionary 959 (1979). Similar to
the facts in Bueno, both Aurora Navarro
and Urbana Zavala personally talked to
Cilona before their services were secured,
and, therefore, Case Farms was ‘‘required
to disclose the information listed in section
1821(a).’’ Bueno, 633 F.Supp. at 1466.
As provided for by the AWPA, a ‘‘potential employee needs information concerning the terms and conditions of employment to make an informed judgment
concerning the desirability of the employment opportunity.’’ Id. Plaintiffs Aurora
Navarro and Urbana Zavala were, therefore, recruited for the purposes of the
AWPA.33 The following findings are warranted:
es activities that run ‘‘the spectrum from the
actual pre-employment discussions between
the recruiter and the migrant worker to the
filing of job orders with the interstate recruitment systemTTTT’’ H.R.REP. No. 97–885 at
13, reprinted in 1982 U.S.C.C.A.NTT at 4559.
Bueno, 633 F.Supp. at 1464–65.
33. This determination does not, of course,
guarantee the success of these plaintiffs’
claims that Case Farms violated 29 U.S.C.
§ 1821(a). Whether or not these plaintiffs
met that burden will be considered below.

 CASTILLO v. CASE FARMS OF OHIO, INC.
Cite as 96 F.Supp.2d 578 (W.D.Tex. 1999)

Urbana Zavala and Aurora Navarro.
Plaintiff Zavala described the experiences of both herself and Navarro. According to Zavala these two plaintiffs
were referred to Case Farms by Alberto
Garcia in a telephone conversation. After speaking with Garcia, Case Farms
employee Cilona met both Zavala and
Navarro at a pork processing plant and
took them to Winesburg. Neither of
these plaintiffs received written disclosures regarding the work they would do
at Case Farms. It is found by a preponderance of the evidence that Case
Farms violated 29 U.S.C. § 1821(a) of
the AWPA by failing to provide Zavala
and Navarro with the mandated written
disclosures.
[14] As a second general defense, Case
Farms argues that the several plaintiffs
that learned of Case Farms’ employment
opportunities through the Texas Workforce Commission cannot bring AWPA
claims against Case Farms ‘‘for the failure
of the Texas Workforce Commission to
provide the required written disclosures.’’
Def. Post–Trial Brf. at 16. In particular,
Case Farms maintains:
The Texas Workforce Commission is not
a farm labor contractor, and Case
Farms is unaware of any cases in which
an employer has been held liable for the
acts or failures to act of a sovereign
state government. Neither Case Farms
nor any other employer can control the
actions of agencies of sovereign state
governments. Permitting workers to
hold an employer liable because a state
unemployment commission failed to
comply with the requirements of a federal statute would discourage employers
from using such commissions because
they could be subject to liability due to
factors completely beyond their control.
In their post-trial briefs to this court, the
plaintiffs do not address this argument.34
Giving consideration to the fact that the
AWPA does not contemplate the role of
34. Rather, plaintiffs rebut the legal significance of defendant’s descriptive statement
that this group of workers initiated contact
with the TWC. Pl. Resp. at 8. The initiation of

603

government entities in the recruitment
process, and also considering the strong
persuasive power of the defendant’s policybased arguments in this regard, it is found
that Case Farms cannot be held liable to
those plaintiffs who received their recruitment/orientation from the TWC. Accordingly, the following findings are made:
Israel Trevino and Estela Carreon.
Plaintiff Trevino testified that he and
Carreon were recruited together in Eagle Pass, Texas, to work for Case
Farms, and at the time of recruitment,
neither of them received the required
written disclosures regarding employment with Case Farms. By a preponderance of the evidence, the court finds
such testimony to be factual. For the
same reasons, however, no violations of
the AWPA has occurred in regard to
Trevino and Carreon’s claims under 29
U.S.C. § 1821(a).
Carlos Reyna. Plaintiff Reyna’s testimony that he received no documents
from Garcia at the time he was recruited
is uncontroverted, and accepted, by a
preponderance of the evidence, as truthful. For the same reasons, however, no
violation of the AWPA has occurred in
regard to Reyna’s claim under 29 U.S.C.
§ 1821(a).
Juan Jimenez. Similarly, plaintiff
Jimenez was recruited by Garcia at
TWC and received no written disclosures. For the same reasons, however,
no violation of the AWPA has occurred
in regard to Jimenez’s claim under 29
U.S.C. § 1821(a).
The third subgroup of the 1997 plaintiffs
is made up of the individuals who were
recruited personally by Cilona. Whether
these plaintiffs received the proper disclosure statements, or any written statements
at all, is a contested issue of fact in this
civil action. These several plaintiffs generally testified that they saw some papers,
contact with a recruiter, according to the
court’s reading of Case Farms’ briefs, was not
the gravamen of its argument.

 604

96 FEDERAL SUPPLEMENT, 2d SERIES

but were not provided with the required
disclosures. Case Farms, through the testimony of Cilona, argues that these plaintiffs did, in fact, receive written disclosure
statements. According to Cilona, he provided the Employee Information Sheet 35
to all employees he recruited after, at the
latest, November 1, 1996. Plaintiff Cruz
Martinez confirmed Cilona’s testimony.
Hence, this court is faced with weighing
the testimony of the several plaintiffs
against that of Cilona and Martinez. And,
although there is insufficient evidence to
conclude definitively that these plaintiffs
did in fact receive the required disclosures,
it is found that these plaintiffs have generally failed to meet their burden of proving
by a preponderance of the evidence that
they did not receive such disclosures.36
Gustavo Caballero. Plaintiff Caballero did recall signing some papers at
the TWC, but denies that any such papers provided information about the job
at Case Farms. In light of the evidence
contradicting this testimony, it is found
that Caballero has failed to meet his
burden of showing, by a preponderance
of the evidence, a violation of 29 U.S.C.
§ 1821(a), except as to item (8) of that
provision, as conceded by Case Farms.
Carlos Gonzalez. Plaintiff Gonzalez
testified that he did not recognize the
‘‘Employee Information Sheets’’ presented into evidence at trial. He also
denied having received them and stated
that he would have recognized such documents had he seen them before. Gonzalez did recall seeing a document listing
various departments at Case Farms and
their hourly rates of compensation. In
light of the evidence contradicting this
testimony, however, it is found that Gon-

zalez has failed to meet his burden of
showing, by a preponderance of the evidence, a violation of 29 U.S.C. § 1821(a),
except as to item (8) of that provision as
conceded by Case Farms.

35. The various versions of these documents
were admitted into evidence as Exhibits D–
77, D–95, D–96, D–97, P–36, P–37, and P–41.

comply with the requirements of 29 U.S.C.
§ 1821(a), in that the documents omitted item
(8) relating to the disclosure of workers’ compensation coverage. In light of the minor
nature of this violation and the lack of any
showing of harm to any of the plaintiffs by
this omission, Case Farms urges this court to
consider such an omission a mere technicality. Such a determination will be made in the
consideration of damages, infra.

36. Although some of the 1997 plaintiffs have
failed to meet their burden of proof in regard
to their 29 U.S.C. § 1821(a) claim, Case
Farms concedes that the Employee Information Sheets allegedly distributed to plaintiffs
G. Cabellero, Carlos Gonzalez, Jose Guevara,
Daniel Leura, and Tomas Solis did not fully

Jose A. Guevara. Plaintiff Guevara
recalled a video orientation to Case
Farms during his recruitment in Texas,
but he testified that he did not receive
any documents. In view of the evidence
contradicting this testimony, it is found
that Guevara has failed to meet his burden of showing, by a preponderance of
the evidence, a violation of 29 U.S.C.
§ 1821(a), except as to item (8) of that
provision, as conceded by Case Farms.
Yolanda Leura (representing the estate of deceased plaintiff Daniel Leura). Plaintiff Carlos Gonzalez lived with
the Leura family at the time he was
recruited to work for Case Farms, and
was with plaintiff Leura when they were
recruited. The evidence regarding Leura’s claim that Case Farms violated 29
U.S.C. § 1821(a), therefore, is the same
as that presented in reference to Gonzalez. For the same reasons, it is found
that Leura’s personal representative has
failed to meet his burden of showing, by
a preponderance of the evidence, a violation of 29 U.S.C. § 1821(a), except as to
item (8) of that provision as conceded by
Case Farms.
Tomas Solis. Similarly, plaintiff Carlos Gonzalez testified that he and Tomas
Solis were recruited together at the
TWC to work for Case Farms. In addition to that testimony, Solis represented
in his deposition that the only papers he
received were papers that listed the
hourly rates paid at Case Farms.

 CASTILLO v. CASE FARMS OF OHIO, INC.
Cite as 96 F.Supp.2d 578 (W.D.Tex. 1999)

Again, it is found that Solis has failed to
meet his burden of showing, by a preponderance of the evidence, a violation
of 29 U.S.C. § 1821(a), except as to item
(8) of that provision, as conceded by
Case Farms.
III.

A.

False or Misleading Information:
Alleged Violations of 29 U.S.C.
§ 1821(f)
The Law

The plaintiffs further allege that Case
Farms violated the AWPA’s prohibition
against agricultural employers by knowingly providing false or misleading information to migrant agricultural workers regarding the terms, conditions, or existence
of agricultural employment.37 29 U.S.C.
§§ 1821(f) and 1854. Calderon v. Witvoet,
999 F.2d 1101, 1109 (7th Cir.1993); Sanchez–Calderon v. Moorhouse Farms, 995
F.Supp. 1098 (D.Or.1997); Smith v. Bonds,
1993 WL 556781 (E.D.N.C.1993); Saintida
v. Tyre L., 783 F.Supp. 1368, 1377
(S.D.Fla.1992); Villalobos v. Vasquez–
Campbell, 1991 WL 311902 (W.D.Tex.
1991); Colon v. Casco, Inc., 716 F.Supp.
688 (D.Mass.1989). Such a prohibition is
intended to protect ‘‘[a]gricultural workers, who are generally poor people, from
wasting their time and resources by traveling long distances in pursuit of publicly
offered employment opportunities which,
as described, they would be capable of
procuring and satisfactorily performing.’’
Bernett v. Hepburn Orchards, Inc., 1987
WL 16939 (D.Md.1987).
The disclosure requirements under the
AWPA are expansive. Congress clearly
intended that the AWPA-imposed duty ‘‘to
provide truthful information shall be a
duty which runs through the period beginning with recruitment and extending until
the point that the records required to be
maintained need no longer be maintained.’’
H.R. REP. No. 97–885, at 16, reprinted in
37. In its entirety, the provision reads as follows:
(f) Prohibition on knowingly providing false
or misleading information to workers. No
farm labor contractor, agricultural employer,
or agricultural association shall knowingly

605

1982 U.S.C.C.A.N. 4547; see Barajas v.
Bermudez, 43 F.3d 1251, 1260 (9th Cir.
1994) (noting importance and duration of
AWPA’s disclosure requirements); Sanchez–Calderon v. Moorhouse Farms, 995
F.Supp. 1098 (D.Or.1997)
Unlike many other AWPA provisions,
section 1821(f) calls for the ‘‘knowing’’ dissemination of false information. Therefore, in regard to this claim, the plaintiffs
must show that the defendant, or its
agents, had knowledge of the misleading
nature, or falsity, of the promises made.
According to the evidence given by both
sets of plaintiffs, when they were recruited, they were promised free housing and
transportation in Ohio. It is noted that it is
not uncommon for agricultural employers
to provide transportation and housing for
workers as a further inducement to work.
And, for many of the plaintiffs in the instant civil action, the provision of housing
and transportation was a necessary component of any job that would take them from
Texas to Ohio without their families, cars,
and furniture.
B.

The 1996 Plaintiffs

[15] The plaintiffs’ theory that Case
Farms had ‘‘knowledge’’ of misleading or
false promises is based on the proposition
that ATC’s alleged promises of free transportation and housing were obviously false
in light of ATC’s slim profit margin. That
is, part of the non-written agreement between Case Farms and ATC was that Case
Farms would pay ATC $8.00 per hour for
each hour worked in Case Farms’ plant by
a person recruited and hired by ATC. Trial
Tr. at 579. The workers, in turn, would be
paid $5.50 per hour, leaving profit to ATC
of $2.50 per hour worked. In light of this
small profit margin, the plaintiffs alleged
that ‘‘it was unreasonable or incompetent
of ATC to inform the 1996 plaintiffs that
provide false or misleading information to
any migrant agricultural worker concerning
the terms, conditions, or existence of agricultural employment required to be disclosed by
subsection (a), (b), (c), or (d).

 606

96 FEDERAL SUPPLEMENT, 2d SERIES

free housing and transportation would be
provided to them.’’ This general proposition, as a matter of common sense, is
uncontrovertible. And, as a matter of law,
it is determined that such blatantly impossible promises do qualify as ‘‘known’’ falsehoods.
In many cases, the housing and transportation provided to the 1996 plaintiffs
were, without question, wretched and
loathsome. It goes without saying that
‘‘housing’’ that is dangerously overcrowded, or contaminated by raw sewage, the
stench of which induces the occupants to
sleep on stairs outside the apartment door,
is not ‘‘housing’’ at all. To promise someone housing, and then have them sleep on
the floor of an unfurnished room in a
heatless and waterless house with a dozen
other people, would only be morally reprehensible. Under the AWPA, however,
when the promisor is an agricultural employer and the promisee is a migrant
worker, such unconscionable treatment violates federal law.
In this regard, the following findings are
made:
Eloy Cantu, Sergio Hernandez, and
Joseph Cooper. Plaintiffs Cantu, Hernandez, and Cooper were promised a job
and housing. Cantu Aff. ¶ 2; Cooper
Aff. ¶¶ 3, 5, 7; Cooper Dep. at 16TT
Once in Ohio, they were offered housing
that had no heat, light, or furniture.
Cantu Aff. ¶ 11, Cantu Dep. at 13; Cooper Aff. ¶ 11. S. Hernandez Dep. at 15.
Plaintiff Cooper testified that he, Cantu,
and Hernandez would have stayed and
worked at Case Farms had they had
suitable housing. Those three plaintiffs
returned to Texas within a day of arriving in Ohio. Cantu Aff. ¶ 3. Cantu testified that he was unable to send money
to his mother and felt very angry about
the way he was treated. Cantu Aff. ¶ 3.
These facts were virtually uncontested
by Case Farms. It is found by a preponderance of the evidence, that Case
Farms violated 29 U.S.C. § 1821(f) as
alleged by Cantu, Hernandez, and Cooper.

Gerardo Castillo and Efrain Leal.
Plaintiff Castillo testified that when he
was recruited by ATC for Case Farms,
(along with Rafael Gonzalez and Leal),
they were promised free transportation
to and from the plant everyday, and free
housing near the plant. Castillo Aff. ¶ 3;
Castillo Dep. at 33, 45–46; Leal Aff. ¶ 2.
Because he understood that the housing
would be furnished, he took no furniture
with him. Upon arrival in Ohio, Castillo
and Leal discovered that the housing
had no furniture, no heat, and no blankets. Castillo Aff., ¶ 6; Castillo Dep. at
88; Leal Aff. ¶ 3. Castillo was put in a
house with 18 other people; the house
had only one bathroom. Castillo Aff.
¶ 6. Castillo testified that he felt trapped
and angry. Castillo Aff. at ¶ 7. Castillo
was moved after approximately one
week. The new location still had no
furniture. It did, however, have heat.
After complaining to his supervisor at
Case Farms, Castillo was brought several pillows. Castillo Aff. ¶ 9. Castillo testified that he felt humiliated that he had
to suffer such deplorable housing conditions and could not make enough money
to send any home. Plaintiff Leal also
testified to the humiliation he felt because he had to live under such conditions, and because he had to ask a local
church for food to eat. Leal Aff. ¶ 5.
These facts were virtually uncontested
by Case Farms. It is found by a preponderance of the evidence, that Case
Farms violated 29 U.S.C. § 1821(f) as
alleged by Castillo and Leal.
Edna Mae Chong (representing the
estate of Josephine Tijerina), and Michelle Galvan. The evidence pertaining
to plaintiff Tijerina’s experiences with
Case Farms was provided by plaintiff
Galvan, who was recruited with, traveled
with, and lived with Tijerina. These two
plaintiffs were promised free transportation and free, furnished housing. They
were promised that they would have
their own apartment. Trial Tr. at 100–
01. Galvan also testified that she was
told by the recruiters not to bring her

 CASTILLO v. CASE FARMS OF OHIO, INC.
Cite as 96 F.Supp.2d 578 (W.D.Tex. 1999)

car to Ohio because she would not need
it. Trial Tr. at 106. According to her,
these two plaintiffs traveled to Ohio
based on these representations. Upon
arrival, Alvaro Hernandez placed them
in a one-bedroom, one-bathroom house
in Ohio with eighteen people, including
plaintiffs Efrain Leal, Rafael Gonzalez,
Hugo Hernandez, Raul Zavala, and R.
Zamarano. Trial Tr. at 120, 124–127,
131–134, 153. Photographs of this house
were admitted into evidence as Plaintiff’s Exhibit 3. Galvan testified that it
was at times frightening for her and
Tijerina to share a house with so many
men who were strangers to them. Trial
Tr. at 128. These two plaintiffs, along
with another woman, attempted to sleep
huddled together next to a wall with a
male acquaintance on the outside for
their protection. Trial Tr. at 121, 129.
Those three women also went to the
bathroom together, so that while one
showered, and another used the toilet,
the third could hold the door closed.
Trial Tr. at 129. Galvan testified that
neither she nor Tijerina could adjust to
such miserable conditions, and that they
constantly hoped Case Farms would find
them another place to live. Trial Tr. at
130–131.
Regarding transportation,
Galvan testified that she and Tijerina
were driven to work by Alvaro Hernandez (a Case Farms employee) or Juan
Lopez in a dilapidated van that had
wooden planks instead of seats. Trial
Tr. at 135–137. As evidenced by Plaintiffs’ Exhibit 4, money was deducted
from these two plaintiffs’ pay for these
rides. Galvan believed that riding in the
van was very dangerous, because exhaust fumes leaked in through the floor,
and the view through the windshield was
obscured. Trial Tr. at 139. These facts
were virtually uncontested by Case
Farms. It is found by a preponderance
of the evidence, that Case Farms violated 29 U.S.C. § 1821(f) as alleged by
Tijerina and Galvan.
Rafael Gonzalez. When recruited,
Gonzalez was promised free transportation and housing. Castillo Aff. ¶ 3; Cas-

607

tillo Dep. at 33, 45–46. The transportation was a crowded van with wooden
benches, supported by cement blocks,
for seats. R. Gonzalez Aff. ¶ 4–6. Gonzalez was taken to an empty house, with
about 22 people. It had no heat, stove,
refrigerator or beds when he arrived.
R. Gonzalez Aff. ¶ 6. The bathroom had
no water, so in order to flush the toilet,
Gonzalez had to melt snow. R. Gonzalez
Aff. ¶ 7. These facts were uncontested
by Case Farms. It is found by a preponderance of the evidence, that Case
Farms violated 29 U.S.C. § 1821(f), as
alleged by Gonzalez.
Jose Guadalupe Estrada. Plaintiff
Estrada was promised housing in Ohio,
and there was no mention that he would
have to pay for it. Estrada Aff. ¶ 3;
Estrada Dep. at 13. He was also told in
Texas that transportation to and from
work would be provided. Estrada Aff.
¶ 4. The housing provided to Estrada
was a one bedroom house with no furniture, no stove, no refrigerator, no beds,
and no heat. He shared the house with
approximately 20 people. Estrada Aff.
¶¶ 8, 10. Estrada testified that he felt
badly because he was unable to send
money home to his family. Estrada Aff.
¶¶ 13–14. These facts were uncontested
by Case Farms. It is found, therefore,
by a preponderance of the evidence, that
Case Farms violated 29 U.S.C.
§ 1821(f), as alleged by Estrada.
Martin Hernandez and Esperanza
Hernandez. Plaintiff Hernandez testified on behalf of himself and his sister,
Esperanza Hernandez.
These two
plaintiffs were recruited together, at
which time they were promised housing
with necessities such as beds and chairs.
Trial Tr. at 20. They were also promised free transportation to and from
work each day. Trial Tr. at 20. The
housing furnished to these plaintiffs
upon arrival in Ohio was outrageously
squalid. Not only were they taken to
an apartment with no heat, electricity or
furniture, but water was leaking into
the building through the walls. Hernan-

 608

96 FEDERAL SUPPLEMENT, 2d SERIES

dez aptly described this location as a
‘‘cave.’’ Trial Tr. at 20–22. He testified
that he was reluctant to leave the place,
because he and his sister do not speak
English and they did not know where
they were. After several days, Alvaro
Hernandez came for these two plaintiffs
and took them to a basement apartment
owned by Georgia Lopez. Again there
was no furniture, and Hernandez and
his sister had to sleep on the floor.
Trial Tr. at 28–29. After the sewage
pipes in the building broke, raw sewage
came into the basement apartment, and
Hernandez and his sister had to sleep
on the apartment stairs because they
could not enter the apartment. Trial
Tr. at 27. While they were eventually
able to remove the sewage, they could
not remove the odor. Trial Tr. at 27.
Hernandez also testified that he and his
sister were taken to work in a van that
leaked exhaust into the passenger compartment, and which had wooden planks
instead of seats. Trial Tr. at 53–54.
Because they could not always find
rides to work (although they had been
promised them when recruited), Hernandez and his sister at times had to
sleep in the processing plant itself. Trial Tr. at 56. Nevertheless, as evidenced
by exhibit P–4, deductions for rides to
work were taken from these plaintiffs’
pay. Martin Hernandez testified that
he and his sister are still traumatized by
their experiences in Ohio. Trial Tr. at
28. These facts were virtually uncontested by Case Farms. It is found by a
preponderance of the evidence, that
Case Farms violated 29 U.S.C.
§ 1821(f), as alleged by Martin Hernandez and Esperanza Hernandez.
Jesus Mejia. Plaintiff Mejia was also
told at recruitment that he would have a
furnished house close to the plant, and
that he would receive rides to work.
Mejia Aff. ¶ 2; Mejia Dep. at 22–23.
Although expecting a house with necessary furnishings, he was put in a house
with no furniture, and with only one
bathroom for twenty people. Mejia Aff.
¶ 6. Mejia was taken to work in a van

with wooden boards on blocks instead of
seats, along with more than 15 other
workers. Mejia Aff. ¶ 9; Mejia Dep. at
39–41. These facts were virtually uncontested by Case Farms. It is found
by a preponderance of the evidence, that
Case Farms violated 29 U.S.C.
§ 1821(f), as alleged by Mejia.
Guadalupe Zamorano, Ricardo Zamorano, Hugo Hernandez, and Raul
Zavala. Plaintiff Guadalupe Zamorano
was recruited with plaintiffs Ricard Zamorano, Hernandez, and Zavala. At
that time, they were told that free transportation would be provided in Ohio and
that rent would also be paid. G. Zamorano Aff. ¶ 4. Upon arriving in Ohio,
these plaintiffs were taken to an unfurnished house that already had 10 people
living in it. G. Zamorano Aff. ¶ 7. The
house had no stove or refrigerator, and
had water only in the bathroom. G.
Zamorano Aff. ¶ 10. Plaintiff Guadalupe
Zamorano testified that he had wanted
to return home to Texas immediately,
but that he, Zamorano, Hernandez, and
Zavala did not have enough money to
make the trip back. As a result, the
four plaintiffs lived in the crowded house
(with plaintiffs Michelle Galvan, Josephine Tijerina, Gerardo Castillo, and
Efrain Leal) for two and half weeks.
Guadalupe Zamorano further testified
that he traveled to work in a crowded
van with wooden seats and no seat belts.
G. Zamorano Aff. ¶ 11,12. These facts
were virtually uncontested by Case
Farms. It is found by a preponderance
of the evidence, that Case Farms violated 29 U.S.C. § 1821(f) as alleged by
Guadalupe Zamorano, Ricard Zamorano,
Hernandez, and Zavala.
C.

The 1997 Plaintiffs

Similarly to the 1996 plaintiffs, the 1997
plaintiffs assert that the housing provided
to them was grossly substandard, and that
no consistent transportation was provided
for them, despite the fact that they were
promised suitable housing and transportation at the time they were recruited in
Texas by either Andy Cilona or Alberto

 CASTILLO v. CASE FARMS OF OHIO, INC.
Cite as 96 F.Supp.2d 578 (W.D.Tex. 1999)

Garcia. Case Farms directly rebuts the
assertion that these plaintiffs were promised free housing and transportation.
The merit of each of the 1997 plaintiff’s
legal claims under 29 U.S.C. § 1821(f)
must be determined in the context of Case
Farms employee Cilona’s contention that
he provided an Employee Information
Sheet to all of the employees whom he
recruited personally. It is uncontested
that those documents, if they were provided to a plaintiff, informed the plaintiffs:
1) that employees would be responsible
for their own housing, but that Case
Farms would advance the first
month’s rent and security deposit to
employees and would then deduct this
amount from paychecks at the rate of
$25.00/month;
2) that the apartments available in the
area were not furnished;
3) that Case Farms would provide assistance in helping workers find rides to
work but that the responsibility for
finding such rides would lie with each
individual employee; and
4) that employees would have to locate
and pay for their own transportation
to and from work.
Exhibits D–77, D–95, D–97; C. Martinez
Dep., at 37. Such information, if provided
to the plaintiffs, would be exactly the types
of disclosures required by the AWPA.
In regard to transportation, Cilona testified that Case Farms does not provide
daily transportation for any of its workers,
but that the workforce nevertheless arrives for work every day. It is noted that
such testimony is irrelevant to the allegations of false promises of free transportation. Cilona also testified that he attempted to assist employees find carpool
arrangements.
38. The testimony of Yolanda Leura (mother of
deceased plaintiff Daniel Leura) indicates that
TWC employee Garcia (and Case Farms employee Cilona) told at least some of the plaintiffs who were recruited at TWC that they
would have to pay for their own housing and
that the company would deduct $25/week

609

One arena of contention in regard to the
1997 plaintiffs’ section 1821(f) claims,
therefore, is whether or not the Employee
Information Sheets were, in fact, provided
to the workers during recruitment. Cilona’s account of events was verified by at
least one plaintiff, Tomas Solis, who testified that he was told he would have to pay
for housing. More specifically, Tomas Solis testified that he understood that the
company would advance him the first
month’s rent and security deposit, but that
the company would then get that money
back over a period of time by making
payroll deductions of $25 a week.38 T.
Solis Dep. at 34.
Another area of contention in regards to
the 1997 plaintiffs’ section 1821(f) claims is
whether Cilona knowingly made misrepresentations to the plaintiffs. It is clear that
Cilona pre-arranged housing for the recruits with Lopez. Cilona Examination
Tr. at 18–19. It is also apparent that, at
least after the initial recruitment, Cilona
knew about the overcrowding in the houses, although Cilona testified that he did
not witness overcrowding himself. Cilona
Examination Tr. at 87. Of course, these
facts, alone, do not establish that Cilona
knowingly made false or misleading promises to the plaintiffs.
Cilona also knew the apartments were
unfurnished. Cilona Examination Tr. at
32, 85. There is virtually no evidence,
however, that Cilona explicitly promised
any plaintiff furnished apartments. It is
conceivable, of course, that a promise that
suitable housing would be provided could
include the implication that the housing
would be furnished, or would at the least
have beds. Furthermore, it is manifest
that Cilona had knowledge that the plaintiffs were, for the most part, traveling to
Ohio without furniture on a bus.39 Simifrom their paychecks. Y. Leura Dep., at 6–8,
10, 15, 16.
39. In its post-trial brief, Case Farms asserts,
‘‘[c]ertainly, Plaintiffs could not have loaded
beds on a bus, but bedrolls or sleeping bags
certainly would have been possible, and, since
Case Farms intended that these employees

 610

96 FEDERAL SUPPLEMENT, 2d SERIES

larly, Cilona knew that most plaintiffs
would not have their own transportation in
Ohio.40
Each individual plaintiff’s legal claims
under section 1821(f) will be considered
against these background facts and contentions. The following findings are made:
Aurora Navarro and Urbana Zavala.
These plaintiffs testified that they were
initially told about Case Farms’ employment opportunities not by Case Farms
itself, but by an individual named Javier
Rodriguez, a co-worker of theirs at a
bacon-packing plant. Dep. of A. Navarro, p. 15–16; Aff. of Zavala. According
to Zavala these two plaintiffs were referred to Case Farms by Alberto Garcia
in a phone conversation. After speaking
with Garcia, Case Farms employee Cilona picked up both Zavala and Navarro
at the pork processing plant in Chillicothe and took them to Winesburg. Cilona allegedly told plaintiffs Navarro
and Zavala, that Case Farms would provide them with an apartment and that
rides to work would not be a problem.
Zavala Aff. ¶ 3. Again, the legislative
history of the AWPA indicates that the
concept of recruitment covers a broad
range of times and activities which
might indeed occur en route. 1982
U.S.C.C.A.N. at 4560. Furthermore,
Case Farms’ contention that ‘‘[t]here
was no evidence presented that either
Navarro or Zavala had first hand knowledge of any information provided by either Garcia or Cilona’’ is incorrect. It is
uncontested that plaintiffs Navarro and
Zavala were put in an apartment without beds, with a broken toilet, and where
cockroaches were endemic. Zavala Aff.
¶¶ 7–9. Both of these plaintiffs missed
work because they had trouble obtaining
rides to work. Zavala Aff. ¶ 11. The
would stay for a long time, purchases of other
household items could have been accomplished over time as the employees settled in
up in Ohio.’’ Def. Resp. to Pl. Post–Trial Brf.
at 21.
40. The court disagrees with Case Farms that
‘‘Cilona had every incentive not to lie about

testimony of Navarro and Zavala is
found to be credible in all respects.
Aside from the general assertion by Cilona that he provided Employee Information Sheets to all of the employees he
recruited personally, Case Farms was
did not contradict these two plaintiffs’
testimony. These plaintiffs’ testimony,
however, lacks the specificity required to
find that Case Farms, more likely than
not, knowingly made false or misleading
promises in their recruitment, in violation of 29 U.S.C. § 1841(f).
Gustavo Caballero. Plaintiff Caballero testified that, at the time of recruitment, he was promised both suitable housing and transportation, and
that he was told that only three people
would be assigned to each apartment.
Caballero Aff. ¶ 2–7. The credibility of
this testimony, however, is questionable,
in that no other plaintiff ever claimed
that similar promises had been made to
them by Cilona. For example, plaintiff
Cabellero testified that he was told he
would be given rides to work ‘‘in buses,
like school buses.’’ Caballero Aff., ¶ 2.
Plaintiff Caballero’s testimony was impeached by his own deposition, where he
admitted that Cilona had told him in
Texas that he would have to pay for his
own housing. It is clear, nonetheless,
that upon arriving in Ohio, plaintiff Caballero shared an unfurnished, heatless
apartment with nine other people and
only one bathroom. He missed work
because Case Farms consistently failed
to arrange rides for him. Caballero Aff.
¶¶ 3–7. The apartment was infested
with cockroaches, which would crawl
over the plaintiff at night. Caballero
Aff. ¶ 3. While this court is again taken
aback by the squalid conditions of the
housing provided to this plaintiff, Caworkers’ ability to obtain rides to and from
work.’’ Def. Response to Pl. Post–Trial Brf.
at 21 n.5. The AWPA was enacted largely in
response to unscrupulous agricultural employers who would promise such provisions,
only to refuse to provide them once the workers had invested the time, expense, and effort
to travel great distances to the work site.

 CASTILLO v. CASE FARMS OF OHIO, INC.
Cite as 96 F.Supp.2d 578 (W.D.Tex. 1999)

ballero has not met his burden of establishing, by a preponderance of the evidence, that Case Farms violated 29
U.S.C. § 1821(f) in the process of recruiting him.
Estela Carreon and Israel Trevino.
Plaintiff Trevino testified as to the experience of himself and plaintiff Carreon.
According to Trevino, these two plaintiffs were told that housing and transportation would be provided for them.
Plaintiff Trevino acknowledged, however, that he was not told that his housing
would be free, or that he would be given
free rides. In Ohio, Case Farms failed
to provide or arrange daily transportation for them, and on two occasions they
started to walk the 30 miles to their
apartment. No apartment having been
provided for them, contrary to what
they had been promised, plaintiffs Trevino and Carreon had to implore workers
already crowded into Lopez’s apartment
to allow them to stay there. It is uncontested that, for three weeks, these two
plaintiffs lived in overcrowded and filthy
apartments, and slept on a floor teeming
with cockroaches. Case Farms’ primary
defense in this regard is that these two
plaintiffs were not ‘‘recruited’’ at all, but
rather ‘‘initiated contact’’ themselves
with TWC employee Garcia. Given the
expansive notion of ‘‘recruitment’’ discussed above, it is found that the determination of who ‘‘initiated contact’’ is not
dispositive of these issues. Because it
has been determined, however, that
TWC’s recruitment efforts cannot be
said to represent an agency relationship
with Case Farms, Case Farms cannot be
held liable for misrepresentations made
by employees of the TWC, and plaintiffs
Carreon and Trevino’s claims that Case
Farms violated 29 U.S.C. § 1821(f) must
fail.
Carlos Gonzalez, Yolanda Leura
(for the estate of Daniel Leura), and
Tomas Solis. Plaintiff Gonzalez testified that when he, Leura, and Solis were
recruited, Cilona promised to provide
housing and transportation, and Cilona
implied that the housing would be suit-

611

able. Trial Tr. at 238, 244–245. Plaintiff Solis, however, testified that Cilona
did explain that the plaintiffs would have
to pay for housing. Solis Dep. P. 34.
Plaintiff Leura’s mother also testified
that these plaintiffs were told about having to pay for housing. Y. Leura Dep.
pp. 6–8, 10, 15, 16. Credible evidence
was presented, however, that the housing was less than suitable. These three
plaintiffs had to sleep on the floor in a
house with no heat and only one bathroom for ten people. Trial Tr. at 249–
256. Inhabitants of the house were
plagued by cockroaches. Trial Tr. at
253–256. Except for the first two days
of work when Lopez transported them
to the plant, these three plaintiffs had to
arrange their own transportation to
work. Trial Tr. at 258–59, 283. They,
at times, rode the 30 to 40 miles to the
plant in the bed of a pick-up truck with
about eight other workers. Trial Tr. at
259. While it is found that the housing
these plaintiffs received was flagrantly
substandard, it is also found that Gonzalez, Leura, and Solis have not met their
burden of showing Case Farms’ violation
of 29 U.S.C. § 1821(f) by a preponderance of the evidence.
Juan Jimenez. Plaintiff Jimenez testified that TWC employee Garcia told
him that he would live very well in the
Lopez apartments in Ohio, and that suitable housing and free transportation
would be provided by Case Farms.
Jimenez Aff. ¶ 3; Jimenez Dep. at 15.
Instead, Jimenez found himself on a
floor of a cold apartment that had a
frequently non-functioning toilet. Jimenez Aff. ¶ 6. Cockroaches crawled over
him at night. Jimenez Aff. ¶ 6. Case
Farms presented little evidence directly
contradicting Jimenez’s claims, depending instead on Cilona’s general assertion
that he always disclosed the conditions
of housing and transportation to his recruits. While Jimenez’s testimony is
found to be credible, and the court, once
again, finds that this plaintiff was placed
in abominable housing conditions, Jime-

 612

96 FEDERAL SUPPLEMENT, 2d SERIES

nez’s testimony does not, by a preponderance of the evidence, prove Case
Farms’ violation of 29 U.S.C. § 1821(f).
Jose Guevara. Plaintiff Guevara testified that Cilona promised that Case
Farms would provide suitable apartments and free rides to work and back.
Guevara Aff. ¶ 3; Guevara Dep. at 28.
Instead, he was placed in substandard
conditions in a crowded house, and made
to pay $25 per week for rides to and
from work. Guevara Aff. ¶ 8, 12; Guevara Dep. at 19. Guevara reports that
his house was infested with rats and
cockroaches, and that a rat bit his finger. Guevara Aff. ¶ 8. Plaintiff Guevara
complained to Case Farms employees
about his housing conditions, but was
ignored. Without providing specific rebuttals to this plaintiff’s testimony, Case
Farms contends that Guevara ‘‘clearly
exaggerated the promises made to
himTTT’’ Def. Post–Trial Brf. at 23 n.8.
Such clear exaggeration is not found by
this court. In light of Cilona’s assertion
that he did in fact provide honest disclosures to all recruits, however, Guevara’s
testimony does not, by a preponderance
of the evidence, prove Case Farms violation of 29 U.S.C. § 1821(f). Such a finding does not in any way condone Case
Farms’ shabby treatment of Guevara.
Carlos Reyna. Plaintiff Reyna was
told by TWC employee Garcia that Case
Farms would provide him with an apartment, free of rent for one month, and
transportation to and from work. Reyna Aff. ¶ 2; Reyna Dep. at 12–14. Garcia also promised Reyna that he would
receive an advance of $50.00 on his
wages. Reyna Aff. ¶ 2. Like many other
plaintiffs, however, the apartment provided for this plaintiff was entirely unsuitable for habitation. The only available water was in the bathtub, there
were no beds, and the toilet did not
function. Reyna Aff. ¶ 5. Because it has
been determined, however, that TWC’s
recruitment efforts cannot be said to
represent an agency relationship with
Case Farms, it cannot be held liable for
misrepresentations made by employees

of the TWC, and plaintiff Reyna’s claims
that Case Farms violated 29 U.S.C.
§ 1821(f) must fail.
IV.

A.

Compliance with the Terms of the
Working Arrangement: Alleged
Violations of 29 U.S.C. § 1822(c)
The Law

[16] Both the 1996 and the 1997 plaintiffs alleged that Case Farms violated the
terms of their working arrangement with
the company, as prohibited by 29 U.S.C.
§ 1822(c). That provision of the AWPA
states that ‘‘[n]o farm labor contractor,
agricultural employer, or agricultural association shall, without justification, violate
the terms of any working arrangement
made by that contractor, employer, or association with any migrant agricultural
worker.’’ 29 U.S.C. § 1822(c). As the
parties acknowledge, plaintiffs’ allegations
in regard to section 1822(c) are substantially similar to those made, and already
discussed, in regard to section 1821(f).
The claims at issue here can largely be
disposed of by reference to the earlier
discussion of the plaintiffs’ claims under
section 1821(f). That is, under the facts of
this civil action, the same conduct that
would constitute a ‘‘false or misleading’’
promise under section 1821(f) of the
AWPA would constitute a violation of the
terms of a working arrangement under
section 1922(c) of the AWPA. Plaintiffs
allege that Case Farms failed to comply
with the promises it made to provide suitable housing and transportation to the
plaintiffs.
B.

1996 Plaintiffs

As determined above, each of the 1996
plaintiffs proved, by a preponderance of
the evidence, that they were given false or
misleading information at recruitment, in
violation of 29 U.S.C. § 1821(f). Because
ATC was acting within the scope of its
agency [and/or as a joint employer] for
Case Farms, those promises also represent
a ‘‘working arrangement made by that con-

 CASTILLO v. CASE FARMS OF OHIO, INC.
Cite as 96 F.Supp.2d 578 (W.D.Tex. 1999)

tractor, employer, or association with any
migrant agricultural worker.’’ 29 U.S.C.
§ 1822(c). Hence, based on the same factual findings as delineated above in reference to section 1821(f), and the fact that
Case Farms has asserted no justification
for its failure to abide by the terms of the
working arrangement, it is determined
that each of the 1996 plaintiffs have proven, by a preponderance of the evidence,
that Case Farms violated section 1822(c) of
the AWPA.
C.

1997 Plaintiffs

It has been determined that the 1997
plaintiffs did not prove, by a preponderance of the evidence, that Case Farms
violated section 1821(f) of the AWPA. Generally speaking, the 1997 plaintiffs did not
provide a quantity of factual evidence sufficient to meet their burden under that provision of the AWPA. Because the 1997
plaintiffs’ section 1822(c) claims are factually premised on the same evidence as
their misrepresentation claims raised under section 1821(f), the same insufficiencies
undermine their claims under section
1822(c), Hence, based on the same factual
findings as delineated above in reference
to section 1821(f), it is determined that
each of the 1997 plaintiffs have failed to
prove, by a preponderance of the evidence,
that Case Farms violated section 1822(c) of
the AWPA.
V.

Housing Health and Safety Codes:
Alleged Violations of 29 U.S.C.
§ 1823(a)

A.

The Law

In addition to requiring fair dealings
with recruited workers by certain employers, the AWPA incorporates substantive
federal and state safety and health standards into its migrant worker protections.
29 U.S.C. § 1823(a); 29 C.F.R. § 1910.142
et seq.; 20 C.F.R. § 654.406 et seq. Section 1823(a) of the AWPA provides:
41.

Section 1823(c), in turn, provides:
This section does not apply to any person
who, in the ordinary course of that person’s
business, regularly provides housing on a
commercial basis to the general public and

613

Except as provided in subsection (c),
each person who owns or controls a
facility or real property which is used as
housing for migrant agricultural workers shall be responsible for ensuring
that the facility or real property complies with substantive Federal and State
safety and health standards applicable to
that housing.41
As defendant Case Farms points out,
unlike most other provisions of the AWPA,
the housing provisions hold liable not only
‘‘agricultural employers’’ and ‘‘farm labor
contractors’’ for violations, but also any
person, including private landlords, who
owns or controls housing. See 29 U.S.C.
§ 1823(a) and (b); 29 C.F.R. § 500.130(c)
(1998). The regulations expressly provide
that:
When the owner or operator of the
housing is not an agricultural employer,
agricultural association, or farm labor
contractor, the owner is responsible for
that housing meeting the safety and
health provisions under the Act and
these regulations.
29 C.F.R. § 500.70(d).
The fact that much of the housing provided to the plaintiffs was in violation of
federal codes is obvious. As discussed
previously, plaintiffs slept on floors with a
dozen or more other workers, encountered
rats and cockroaches, struggled to cope
with having no water, and even avoided
the raw sewage in their apartment by
sleeping on stairs. A number of the plaintiffs experienced housing conditions that
were unhealthy, dangerous, and entirely
demeaning.
According to Case Farms, however, all
plaintiffs’ claims under section 1823(a) fail,
because no evidence has been evidence
presented that is sufficient to show that
Case Farms ‘‘owns or controls’’ the housing in which the plaintiffs lived. Accordwho provides housing to migrant agricultural workers of the same character and on
the same or comparable terms and conditions as is provided to the general public.

 614

96 FEDERAL SUPPLEMENT, 2d SERIES

ing to Case Farms, ‘‘[t]o the extent this
leaves plaintiffs without a remedy for substandard housing conditions, it is only because they voluntarily elected not to bring
an action against the responsible landlords.’’ Def. Post–Trial Brf. at 27.
The fact that the housing provisions of
the AWPA include landlords in the list of
potentially liable entities does not, of
course, necessarily alleviate an agricultural
employer or farm labor contractor from
responsibility. The pertinent regulations
state that ‘‘[i]f more than one person is
involved in providing the housingTTT both
persons are responsible for ensuring that
the facility or real property meets the
applicable Federal and State housing standards.’’ 29 C.F.R. § 500.130(a). That is,
more than one entity may be deemed to
have ownership or control of housing.
And, any entity that owns or controls migrant housing can be held liable under the
AWPA.42
Thus, especially in the context of this
civil action, the statute’s language begs an
obvious question. What is meant by ‘‘control’’ of housing?
According to the
AWPA-derived regulations, an entity or
person
is in ‘control’ of a housing facility or real
property, regardless of the location of
such facility, if said person is in charge
of or has the power or authority to
oversee, manage, superintend or administer the housing facility or real property either personally or through an authorized agent or employee, irrespective
of whether compensation is paid for engaging in any of the aforesaid capacities.
29 C.F.R. § 500.130(c) (1998). It is immediately clear that the term ‘‘controls’’ is
intended to include broad-ranging activities. The disjunctive phrase—‘‘authority
to oversee, manage, superintend or administer’’ housing—sweeps in more activities
than those traditionally relegated to a
landlord.
42. ‘‘[T]he responsibility for compliance with
substantive health and safety requirements
can be joint and several.’’ Rodriguez v. Carl-

In fact, the legislative history of the
AWPA illustrates that Congress intended
the protections of the housing provisions to
be expansive. The Congressional Committee intended ‘‘that this section be interpreted with the broadest possible meaning
to ensure that the person who owns or
controls the facility used as housing TTT is
responsible for maintaining that facility in
compliance with all substantive federal and
state safety and health standards.’’ H.
REP. No. 97–885, at 17–18, reprinted in
1982 U.S.C.C.A.N. at 4563–4564; see Rodriguez v. Carlson, 943 F.Supp. 1263, 1267–
1268 (E.D.Wash.1996); Sanchez v. Overmyer, 845 F.Supp. 1183 (N.D.Ohio, 1993);
Howard v. Malcolm, 629 F.Supp. 952
(E.D.N.C.1986).
In conformity with the clear intent of
Congress, courts have accepted that the
housing provisions, like the AWPA itself,
must be interpreted broadly. ‘‘[The]
AWPA is a remedial statute and should be
construed broadly to effect its humanitarian purpose.’’ Caro–Galvan v. Curtis
Richardson, Inc., 993 F.2d 1500, 1505
(11th Cir.1993); see Bracamontes v. Weyerhaeuser Co., 840 F.2d 271, 276 (5th Cir.
1988). Regarding the definition of ‘‘controls’’ under the Farm Labor Contractor
Registration Act, 7 U.S.C. § 2041, et seq.,
(the ‘‘FLCRA’’), the predecessor of the
AWPA, one district court explained that
it is clear that a contractor need not
acquire an ownership interest or ultimate authority over property in order to
acquire control. Control of housing requires only direct supervisory authority
to oversee, manage, superintend or administer its daily use by others. This is
true regardless of any compensation the
contractor may receive for his supervision or the fact that the actual owner of
the property is empowered to immediately terminate his authority.
Walcher v. Donovan, 1982 WL 1990
(D.S.C.1982). Thus, in regard to the
son, 943 F.Supp. 1263, 1268 (E.D.Wash.
1996).

 CASTILLO v. CASE FARMS OF OHIO, INC.
Cite as 96 F.Supp.2d 578 (W.D.Tex. 1999)

AWPA’s housing provisions, ‘‘[e]ven if the
court were to find some ambiguity in the
definition of ‘owns or controls,’ that ambiguity would have to be decided in favor
of the plaintiffs, since the courts have,
without exception, adopted an expansive
interpretation of all the definitions and
provisions contained in the AWPA and its
statutory building-block, the FLSA.’’
Howard v. Malcolm, 629 F.Supp. 952,
954–55 (E.D.N.C.1986); see also Dunlop
v. Carriage Carpet Co., 548 F.2d 139, 144
(6th Cir.1977); Usery v. Pilgrim Equipment Co., 527 F.2d 1308, 1311 n. 6 (5th
Cir.1976). While this court does find the
statutory definition of ‘‘controls’’ slightly
ambiguous, given Congress’ clear intent
that the word be defined broadly, that
ambiguity appears to be intentional.43
The housing-based claims of the 1996 and
1997 plaintiffs will be considered in the
light of this broadly-defined legal background.
B.

The 1996 Plaintiffs

[17] It has been previously established
that ATC and Case Farms employee Alvaro Hernandez’s activities regarding the
1996 plaintiffs’ housing were performed
within the scope of their duties as agents
of Case Farms. Their actions can, therefore, be attributed to Case Farms. In
light of this agency relationship, it is abundantly clear that Case Farms generally
‘‘controlled’’ the housing of the 1996 plaintiffs. In fact, Case Farms itself, in the
context of its position that neither ATC
nor Alvaro Hernandez were its agents,
expressly acknowledges that ATC and Alvaro Hernandez exercised ‘‘control’’ over
the housing of the 1996 plaintiffs at 607
Front Avenue. Def. Resp. to Pl. Post–
Trial Brf., at 23.
One of Alvaro Hernandez’s duties as an
employee of Case Farms was to find and
43. ‘‘Where the language is not dispositive, the
analysis must focus on the intent of Congress
as revealed in the history and purposes of the
statutory scheme.’’ Hernandez, 812 F.Supp.
at 735, citing Adams Fruit Co. v. Barrett, 494
U.S. 638, 110 S.Ct. 1384, 108 L.Ed.2d 585
(1990). Again the history and purposes of the
statutory scheme are clearly to make agricul-

615

arrange for housing for migrant workers.
As plaintiff Galvan testified, the landlord
who apparently rented to most of the 1996
plaintiffs was Mary Perry.44 (See also Exhibit D–13). According to Perry, Case
Farms’ employee Alvaro Hernandez began
placing Case Farms’ workers in her units
in 1994, and continued to do so until mid–
1997.
Alvaro Hernandez was deeply involved
in the management of Case Farms’ workers’ housing provisions. It seems to have
been a common practice for Perry to tell
Alvaro Hernandez what units were available and for Alvaro Hernandez to assign
them to an apartment (even if there were
already dozens living there), to sign receipts for payment of rent, to sign the
plaintiffs’ rental agreements, and to place
some workers into Perry’s units without
ever notifying her. See Perry Dep. at 85–
87. Until late 1996, Alvaro Hernandez
would give Perry cash to pay tenants’ security deposit and first month’s rent. Perry Dep. at 45. (It is worth noting that
ATC terminated its relationship with Case
Farms on March 1, 1996.)
When tenants were late with their rent,
Perry would seek out Alvaro Hernandez
because ‘‘he was the one that brings the
units in.’’ Perry Dep. at 57. Perry also
testified that she was aware that Alvaro
Hernandez was ‘‘bringing other tenants in
and not putting them on the contract.’’
Perry Dep. at 90. Perry claims that during the time of the 1996 plaintiffs’ occupancy, she did not know how many people
were living in the apartment at 607 Front
Avenue because Alvaro Hernandez ‘‘would
bring them in and move three or four out
and three or four back in and never tell me
that he’s doing it.’’ Perry Dep. at 21, 89–
90.
tural employers and farm labor contractors
responsible for the fair treatment of migrant
workers.
44. Perry served as manager for seventy-two of
Wesley Tolle’s rental units. Perry Dep. at
135–136.

 616

96 FEDERAL SUPPLEMENT, 2d SERIES

ATC itself was similarly involved in the
management of the 1996 plaintiffs’ housing. For example, ATC paid the 1996
plaintiffs’ security deposits and first
month’s rent. Perry Dep. at 62–63, 76–77;
Trial Exh. P–35. ATC negotiated housing
arrangements with Perry before the 1996
plaintiffs even arrived in Ohio. Apparently
suspecting that the housing arrangements
might lead to legal problems, Perry arranged for ATC to execute an addendum
to the rental lease for the unit at 607
Front Avenue to ensure that someone
would be responsible in the event she had
any problems with the City of New Philadelphia due to overcrowding at the property. Perry Dep. at 72–74, 91–92.

added). It was Alvaro Hernandez, and to
a lesser extent ATC, who managed, oversaw, and administered the 1996 housing
arrangements. Because Alvaro Hernandez and ATC were agents of Case Farms
working within the scope of their duties,
Case Farms itself controlled the 1996
plaintiffs’ housing.

The AWPA’s regulations, however, define a controlling entity as one that ‘‘has
the power or authority to oversee, manage,
superintend or administer the housing facility or real property either personally or
through an authorized agent or employeeTTT ’’ 29 C.F.R. § 500.130(c) (emphasis

As will be made clear by the following
findings of fact, it is further determined
that Case Farms housed the 1996 plaintiffs
without first ensuring that the housing
complied with applicable health and safety
standards.45 It is noted that, for the sake
of clarity, some previously discussed evidence is included in the following findings:
Eloy Cantu, Sergio Hernandez, Joseph Cooper. Plaintiffs Cantu, Hernandez, and Cooper were offered housing
that had no heat, light, or furniture.
Cantu Aff. ¶ 11, Cantu Dep. at 13; Cooper Aff. ¶ 11. S. Hernandez Dep. at 15.
Plaintiff Cooper testified that he, Cantu,
and Hernandez would have stayed to
work had they had suitable housing.
Those three plaintiffs returned to Texas
within a day of arriving in Ohio. Cantu
Aff. ¶ 3. These facts were uncontested
by Case Farms. Because these plaintiffs were not housed in Ohio, they have
no claim that Case Farms violated 29
U.S.C. § 1823(a), and related provisions.
Gerardo Castillo. Upon arrival in
Ohio, Castillo discovered that the housing had no furniture, no heat, and no
blankets. Castillo Aff. ¶ 6; Castillo
Dep. at 88. Castillo was put in a house
with 18 other people; the house had

45. Among the applicable health and safety
standards are the following: (1) the housing
must be of adequate size so as to prevent
overcrowding; (2) the housing must provide
protection against the elements; (3) each
room used for sleeping purposes must contain
at least 50 square feet of floor space for each
occupant; (4) beds, cots, or bunks and suitable storage facilities, such as wall lockers for
clothing and personal articles, must be provided in each room used for sleeping purposes; (5) windows must open and close for
purposes of ventilation; (6) the housing must
have screens on the windows and self-closing
screen doors; (7) in housing where cooking

facilities are shared, there must be at least
one stove per 10 occupants; (8) if housing is
used during cold weather, adequate heat must
be provided; (9) where restroom facilities are
shared, there must be at least one handwashing basin per family or six unrelated occupants and one shower head per family or 10
unrelated occupants; (10) there must be an
adequate and convenient water supply; and
(11) effective measures must be taken to prevent infestation by and harborage of animals
or insects. 29 U.S.C. § 1323(a); 29 C.F.R.
§ 1910.142 et seq.; 20 C.F.R. § 654.404, et
seq.

Under the facts adduced at trial and in
the various depositions presented to the
court, it is clear that Alvaro Hernandez
and ATC ‘‘controlled’’ the housing provided to the 1996 plaintiffs. As mentioned
previously, Case Farms does not contest
this point. Rather, Case Farms points to
the fact that it never put its name on any
leases for the employees, and that it declined to sign a ‘‘Guarantee of Performance’’ for some of its employees living in
Perry’s units, as evidence that Case Farms
did not own or control the housing. Perry
Dep at 127–128.

 CASTILLO v. CASE FARMS OF OHIO, INC.
Cite as 96 F.Supp.2d 578 (W.D.Tex. 1999)

only one bathroom. Everyone there
slept on the floor. Castillo Aff. ¶ 6. Castillo was moved after approximately one
week. The new location still had no
furniture. It did, however, have heat.
After complaining to his supervisor at
Case Farms, Castillo was brought several pillows. Castillo Aff. ¶ 9. Castillo testified that he felt humiliated that he had
to suffer such deplorable housing conditions and that he could not make enough
money to send any home. These facts
were uncontested by Case Farms. It is
found by a preponderance of the evidence, that Case Farms violated 29
U.S.C. § 1823(a), and related provisions,
as alleged by Castillo.
Efrain Leal. The house Leal and Gerardo Castillo lived in had no furniture,
no heat, and no blankets or quilts. Leal
Aff. ¶ 3; Castillo Aff. ¶ 6; Castillo Dep.
at 88. The one bathroom house had
more than 18 people living in it. Castillo Aff. ¶ 6; Castillo Dep. at 88. Plaintiff
Leal testified to the humiliation he felt
at having to live like this, and because
he had to ask a local church for food to
eat. Leal Aff. ¶ 5. These facts were
uncontested by Case Farms. It is found
by a preponderance of the evidence, that
Case Farms violated 29 U.S.C.
§ 1823(a), and related provisions, as alleged by Leal.
Edna Mae Chong (representing the
estate of Josephine Tijerina), and Michelle Galvan. The evidence pertaining
to plaintiff Tijerina’s experiences with
Case Farms was provided by plaintiff
Galvan, who was recruited with, traveled
with, and lived with Tijerina. Upon arrival, Alvaro Hernandez placed them in
a one-bedroom, one-bathroom house in
Ohio with eighteen people, including
plaintiffs Efrain Leal, Rafael Gonzalez,
Hugo Hernandez, Zavala, and R. Zamarano. Trial Tr. at 120, 124–127, 131–134,
153. Photographs of this house were
admitted into evidence as Plainitff’s Exhibit 3. Galvan testified that is was at
times frightening for her and Tijerina to
share a house with so many men who
were strangers to them. Trial Tr. at

617

128. These two plaintiffs, along with
another woman, attempted to sleep huddled together next to a wall with a male
acquaintance on the outside for their
protection. Trial Tr. at 121, 129. Those
three women also went to the bathroom
together so that while one showered,
and another used the bathroom, the
third could hold the door closed. Trial
Tr. at 129. Galvan testified that neither
she nor Tijerina could adjust to such
miserable conditions, and that they constantly hoped Case Farms would find
them another place to live. Trial Tr. at
130–131. These facts were virtually uncontested by Case Farms. It is found
by a preponderance of the evidence, that
Case Farms violated 29 U.S.C.
§ 1823(a), and related provisions, as alleged by Tijerina and Galvan.
Rafael Gonzalez. Gonzalez was taken to an unfurnished house, with about
22 people. He, and others, had to sleep
on the floor. R. Gonzalez Aff. ¶ 4–5.
The house had no heat, stove, refrigerator or beds when he arrived. R. Gonzalez Aff. ¶ 6. The bathroom had no
water, so in order to flush the toilet,
Gonzalez had to melt snow. R. Gonzalez
Aff. ¶ 7. These facts were virtually uncontested by Case Farms. It is found
by a preponderance of the evidence, that
Case Farms violated 29 U.S.C.
§ 1823(a), and related provisions, as alleged by Gonzalez.
Jose Guadalupe Estrada. The housing provided to Estrada was a one bedroom house with no furniture, no stove,
no refrigerator, no beds, and no heat.
He shared the house with approximately
20 people. Estrada Aff. ¶¶ 8, 10. Estrada testified that he felt badly because
he was unable to send money home to
his family.
Estrada Aff. ¶¶ 13–14.
These facts were uncontested by Case
Farms. It is found, therefore, by a preponderance of the evidence, that Case
Farms violated 29 U.S.C. § 1823(a), and
related provisions, as alleged by Estrada.

 618

96 FEDERAL SUPPLEMENT, 2d SERIES

Martin Hernandez and Esperanza
Hernandez. Plaintiff Martin Hernandez testified on behalf of he and his
sister, Esperanza Hernandez.
The
treatment of these plaintiffs upon arrival
in Ohio was revolting. Not only were
they taken to an apartment with no heat
or electricity or furniture, but water was
leaking into the building through the
walls. Martin Hernandez aptly described this location as a ‘‘cave.’’ Trial
Tr. at 20–22. Plaintiff Martin Hernandez testified that he was reluctant to
leave the place, because he and his sister
do not speak English and they did not
know where they were. After several
days, Alvaro Hernandez came for these
two plaintiffs and took them to a basement apartment owned by Georgia Lopez. Again there was no furniture and
Martin Hernandez and Esperanza Hernandez had to sleep on the floor. Trial
Tr. at 28–29. After the sewage pipes in
the building broke, raw sewage came
into the basement apartment, and Hernandez and his sister had to sleep on the
apartment stairs, because they could not
enter the apartment. Trial Tr. at 27.
While they were eventually able to remove the sewage, they could not remove
the odor. Trial Tr. at 27. Hernandez
testified that he and his sister are still
traumatized by their experiences in
Ohio. Trial Tr. at 28. These facts were
uncontested by Case Farms. It is found
by a preponderance of the evidence, that
Case Farms violated 29 U.S.C.
§ 1823(a), and related provisions, as alleged by Martin Hernandez and Esperanza Hernandez.
Jesus Mejia. Expecting a house with
necessary furnishings, plaintiff Mejia
was put in a house with no furniture,
and with only one bathroom for twenty
people. Mejia Aff. ¶ 6. J. These facts
were virtually uncontested by Case
Farms. It is found by a preponderance
of the evidence, that Case Farms violated 29 U.S.C. § 1823(a), and related provisions, as alleged by Mejia.
Guadalupe Zamorano, Ricardo Zamorano, Hugo Hernandez, and Raul

Zavala. Upon arriving in Ohio, these
plaintiffs were taken to an unfurnished
house that already had 10 people living
in it. G. Zamorano Aff. ¶ 7. The house
had no stove or refrigerator, and had
water only in the bathroom. G. Zamorano Aff. ¶ 10. There were eventually
18 people in the house. G. Zamorano
Aff. ¶ 7. Plaintiff Guadalupe Zamorano
testified that he had wanted to return
home to Texas immediately, but that he,
Ricard Zamorano, Hernandez, and Zavala did not have enough money to make
the trip back. As a result, the four
plaintiffs lived in the crowded house
(with plaintiffs Michelle Galvan, Josephine Tijerina, Gerardo Castillo, and
Efrain Leal) for two and half weeks.
These facts were uncontested by Case
Farms. It is found by a preponderance
of the evidence, that Case Farms violated 29 U.S.C. § 1823(a), and related provisions, as alleged by Guadalupe Zamorano, Ricard Zamorano, Hernandez, and
Zavala.
C.

The 1997 Plaintiffs

[18] Like the 1996 plaintiffs, the 1997
plaintiffs’ housing claims are premised on
Case Farms’ ‘‘control’’ of their housing
through a Case Farms employee. While it
may be a close question given the expansive definition of ‘‘control’’ under the
AWPA, the actions of Former Human Resources Director Andy Cilona, were sufficiently different from those of Alvaro Hernandez to warrant a different outcome.
Cilona was the liaison between the 1997
plaintiffs and their landlords. These plaintiffs generally testified that the housing in
which they lived was managed by Georgia
Lopez. Unlike Alvaro Hernandez’s relationship with Perry, Cilona seems to have
left the administration of Lopez’s units to
Lopez.
Beginning in 1995, Case Farms would
secure units for incoming workers with
Lopez, prior to the workers’ arrival. As
part of this arrangement, Case Farms
would pay Lopez for the employees’ secu-

 CASTILLO v. CASE FARMS OF OHIO, INC.
Cite as 96 F.Supp.2d 578 (W.D.Tex. 1999)

rity deposit and first month’s rent. Trial
Exh. P–29, P–34. It is undisputed that
Case Farms did this for the 1997 plaintiffs,
in particular. Apparently, Cilona would
engage in a number of activities (reading
classified ads, attending landlord meetings,
etc.) in an attempt to locate landlords who
would be willing to rent to out-of-state
workers. Cilona would survey such landlords before a recruiting trip to see where
units might be available for the incoming
workers.
Cilona also sometimes negotiated the
terms of the workers’ lease with the landlords. Cilona Examination Tr. at 43. Under just such an agreement, Lopez
charged each Case Farms worker $25 per
person per week, regardless of the number
of people per unit.46 Cilona Examination
Tr. at 20. Case Farms would then advance the first month’s rent and security
deposit for its employees.47 (This money
would later be taken out of their paycheck.) This practice ended when Cilona
left Case Farms in 1997. Lopez Dep., 84–
86. In some cases, Cilona was allowed to
place Case Farms’ workers in Lopez’s
apartments without paying in advance.
Although such arrangements begin to
resemble ‘‘control’’ of the workers’ housing, the fact that Case Farms’ role in the
1997 plaintiffs’ housing was limited to
these negotiations and advances exculpates
Case Farms from liability. Cilona did not
have the right to assign workers to an
apartment. Lopez Dep. at 117. He could
not determine what rent would be paid.

619

He had no keys to any housing. After the
first month, Lopez would collect rents directly from the workers, often going door
to door. Lopez Dep. at 57–58. The 1997
plaintiffs made their complaints to Lopez,
not to Cilona.48 See, e.g., A. Navarro Dep.
p. 31–32; T. Solis Dep. p. 37. In some
cases, Lopez arranged housing with Case
Farms workers without ever having spoken to Cilona, at all. Lopez Dep. at 47.
It is determined that these facts, in their
totality, fail to demonstrate that Case
Farms ‘‘controlled’’ the 1997 plaintiffs’
housing. Against the background of this
determination, the following findings are
made: 49
Aurora Navarro and Urbana Zavala.
It is uncontested that plaintiffs Navarro
and Zavala were put in an apartment
without beds, with a broken toilet, and
with numerous cockroaches. Zavala Aff.
¶¶ 7–9. Given, however, the plaintiffs’
failure to establish that Case Farms controlled the housing, it is determined that
Navarro and Zavala, have failed to
prove, by a preponderance of the evidence, that Case Farms violated 29
U.S.C. § 1823(a), and related provisions.
Gustavo Caballero. Upon arriving in
Ohio, plaintiff Caballero shared an unfurnished, heatless apartment with nine
other people and only one bathroom.
He testified that in the month or so that
he worked for Case Farms, he never
had a bed to sleep in. Caballero Aff.
¶¶ 3–4. The apartment was infested

46. This practice was different from the way
Georgia Lopez handled leases with the general public. According to Lopez, she made this
special arrangement because out-of-state
workers often had a difficult time getting utilities put in their name, and she would pay for
the Case Farm workers’ utilities. Lopez Dep.
at 72–73. This court agrees that these terms
provided an incentive to violate the substantive housing provisions of the AWPA. Under
the facts at hand, however, it appears that
Lopez, rather than Case Farms would be responsible for those violations.

house a substitute worker if it chose.’’ This
court declines the plaintiffs’ invitation to find
such advances to represent ‘‘a legal or equitable interest in such a facility or real property’’
under 29 C.F.R. § 500.130(b).
48. Although Cilona testified that he would
assist with problems whenever possible. Cilona Examination Tr. at 46–47. He received
a number complaints about the availability of
keys, Cilona Examination Tr. at 47, and about
having to sleep on the floor. Cilona Examination Tr. at 87.

47. Plaintiffs argue that these advances qualify
as an ‘‘equitable interest [in the housing] retained by Case Farms which it could apply to

49. It is noted again that for the sake of clarity,
some previously discussed evidence is included in these findings.

 620

96 FEDERAL SUPPLEMENT, 2d SERIES

with cockroaches, that would crawl over
the plaintiff at night. Caballero Aff. ¶ 3.
Moreover, the heaters did not work.
Caballero Aff. ¶¶ 3–4. These facts were
uncontested by Case Farms. Given,
however, the plaintiffs’ failure to establish that Case Farms controlled the
housing, it is determined that G. Cavallero has failed to prove, by a preponderance of the evidence, that Case
Farms violated 29 U.S.C. § 1823(a), and
related provisions.
Estela Carreon and Israel Trevino.
Plaintiff Trevino testified as to the experiences of himself and plaintiff Carreon.
Instead of being provided an apartment
for the two of them as they were told,
plaintiffs Trevino and Carreon had to
implore workers already crowded into
Lopez’s apartment to allow them to stay
there. It is uncontested that for three
weeks, these two plaintiffs lived in overcrowded and filthy apartments, and
slept on a floor infested with cockroaches. Trial Tr. at 295–300. These facts
were uncontested by Case Farms. Given, however, the plaintiffs’ failure to establish that Case Farms controlled the
housing, it is determined that Carreon
and Trevino have failed to prove, by a
preponderance of the evidence, that
Case Farms violated 29 U.S.C.
§ 1823(a), and related provisions.
Carlos Gonzalez, Yolanda Leura
(for the estate of Daniel Leura), and
Tomas Solis. These three plaintiffs
had to sleep on the floor in a house with
no heat and only one bathroom for ten
people. Trial Tr. at 249–256. The
house was infested by cockroaches. Trial Tr. at 253–256. These facts were
uncontested by Case Farms. Given,
however, the plaintiffs’ failure to establish that Case Farms controlled the
housing, it is determined that Gonzalez,
Leura, and Solis, have failed to prove,
by a preponderance of the evidence, that
Case Farms violated 29 U.S.C.
§ 1823(a), and related provisions.
Juan Jimenez. Jimenez lived six
months in an apartment, sleeping on a
floor in a cold apartment that had an

often-broken toilet. Jimenez Aff. ¶ 6.
Cockroaches crawled over him at night.
Jimenez Aff. ¶ 6. These facts were uncontested by Case Farms. Given, however, the plaintiffs’ failure to establish
that Case Farms controlled the housing,
it is determined that Jimenez has failed
to prove, by a preponderance of the
evidence, that Case Farms violated 29
U.S.C. § 1823(a), and related provisions.
Jose Guevara. Guevara reports that
his house was infested with rats and
cockroaches, and that a rat bit his finger. Guevara Aff. ¶ 8. Plaintiff Guevara
complained to Case Farms employees
about his housing conditions, but was
ignored. He had no bed to sleep on, and
no heat. Guevara Aff. ¶ 8; Guevara
Dep. at 25. Case Farms did not contest
this evidence. Given, however, the
plaintiffs’ failure to establish that Case
Farms controlled the housing, it is determined that Guevara has failed to
prove, by a preponderance of the evidence, that Case Farms violated 29
U.S.C. § 1823(a), and related provisions.
Carlos Reyna. Plaintiff Reyna was
provided an apartment in which the only
available water was in the bathtub, there
were no beds, and the toilet did not
function. Reyna Aff. ¶ 5. These facts
were uncontested by Case Farms. Given, however, the plaintiffs’ failure to establish that Case Farms controlled the
housing, it is determined that Reyna has
failed to prove, by a preponderance of
the evidence, that Case Farms violated
29 U.S.C. § 1823(a), and related provisions.
VI.

Posted Certificate of Occupancy:
Alleged Violations of 29 U.S.C.
§ 1823(b)

[19] In addition to section 1823(a)’s incorporation of substantive federal and
state safety and health standards into its
migrant housing provisions, section 1823(b)
of the AWPA requires that agricultural
employers who own or control housing that
is used as housing for migrant workers
must secure certification from either a
state or local health authority, or other

 CASTILLO v. CASE FARMS OF OHIO, INC.
Cite as 96 F.Supp.2d 578 (W.D.Tex. 1999)

appropriate agency, stating that the housing meets applicable safety and health
standards.50 29 U.S.C. § 1823(b). Thus,
the obligation to obtain certification is a
separate requirement, in addition to the
obligation to comply with housing and
safety standards. 1982 U.S.C.C.A.N. at
4564.
It is uncontested that the housing provided to both sets of plaintiffs lacked such
certification. Cilona testified that he did
not see any such posting at any of the
units. Cilona Examination Tr. at 31. Perry testified that the only inspection conducted at 607 Front Avenue occurred
around 1993. Thus, there is no question
that this provision was violated. The only
question is whether Case Farms is responsible for that violation.
It has previously been determined that,
in regard to the 1996 plaintiffs, Case
Farms was in ‘‘control’’ of the housing.
Such a finding makes Case Farms responsible for ensuring that the certification is
obtained for the units housing the 1996
plaintiffs. Thus, the 1996 plaintiffs, with
the exceptions of Joseph Cooper, Sergio
Hernandez, and Eloy Cantu,51 have proven, by a preponderance of the evidence,
that Case Farms was in violation of 29
U.S.C. § 1823(b) of the AWPA. Gerardo
Castillo, Edna Mae Chong, Efrain Leal.
50. The provision, in its entirety, reads as follows:
(b) Certification that applicable safety and
health standards are met; posting of certificate of occupancy; retention of certificate
and availability for inspection and review;
occupancy prior to inspection.
(1) Except as provided in subsection (c)
and paragraph (2) of this subsection, no
facility or real property may be occupied by
any migrant agricultural worker unless either a State or local health authority or
other appropriate agency has certified that
the facility or property meets applicable
safety and health standards. No person
who owns or controls any such facility or
property shall permit it to be occupied by
any migrant agricultural worker unless a
copy of the certificate of occupancy is posted at the site. The receipt and posting of a
certificate of occupancy does not relieve
any person of responsibilities under subsection (a). Each such person shall retain the

621

Rafael Gonzalez, Jose Estrada, Martin
Hernandez, Esperanza Hernandez, Hugo
Hernandez, Jesus Mejia, Guadalupe Zamorano, Ricard Zamorano, Raul Zavala and
Michelle Galvan may recover under this
provision. A determination of such recovery will be taken up in Section XI, infra.
It was determined, however, that Case
Farms did not control the housing for the
1997 plaintiffs. As a result, the 1997 plaintiffs have failed to meet their burden under 29 U.S.C. § 1823(b), and may not recover under this provision.
VII. Posted Terms and Conditions of
Housing Occupancy: Alleged Violations
of 29 U.S.C. § 1821(c)
[20] The AWPA also requires an agricultural employer who ‘‘provides housing
for any migrant agricultural worker’’ to
post in a conspicuous place, or present to
each occupant, a statement of the terms
and conditions of occupancy of the housing.
29 U.S.C. § 1821(c). The issue before this
court, then, is whether or not Case Farms
‘‘provided’’ housing for the 1996 and/or
1997 plaintiffs.
Case Farms contends that ‘‘[t]hough the
term ‘provides’ is not defined by the statute, the regulations suggest that the term
essentially has the same meaning as the
terms ‘owns’ or ‘operates.’ ’’ 52 Def. Post–
original certification for three years and
shall make it available for inspection and
review in accordance with section 512 [29
U.S.C. § 1862].
(2) Notwithstanding paragraph (1) of this
subsection, if a request for the inspection of
a facility or real property is made to the
appropriate State or local agency at least
forty-five days prior to the date on which it
is occupied by migrant agricultural workers
and such agency has not conducted an inspection by such date, the facility or property may be so occupied.
51. These plaintiffs refused to remain in Ohio
and traveled immediately back to Texas.
Therefore, they have no housing-based claims
against Case Farms.
52. Case Farms bases this argument on 29
C.F.R. § 500.130 which states, in pertinent
part, as follows:
If more than one person is involved in
providing the housing for any migrant agri-

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96 FEDERAL SUPPLEMENT, 2d SERIES

Trial Brf. at 35. Such a conclusion is
unwarranted for several reasons. First,
the word ‘‘provides’’ must be viewed in the
context of all of the other provisions of the
AWPA that do, in fact, use the phrase
‘‘owns and controls.’’ It would be unlikely
that Congress would abruptly switch to
the word ‘‘provides’’ if it meant ‘‘owns and
controls.’’ Second, the straight-forward
denotation of ‘‘provides’’ is considerably
more expansive than ‘‘owns and controls.’’
According to Webster’s New World Dictionary of the American Language, the definition of ‘‘provide’’ includes ‘‘to get ready
beforehand; obtain in advance’’ and ‘‘to
make available; supply.’’ These phrases
clearly denote a broader set of activities
than ‘‘own’’ or ‘‘control.’’ Third, according
to the relevant legislative history of this
provision, ‘‘[t]o provide housing within the
meaning of the AWPA, means to make
housing available, procure housing, or furnish housing.’’ 1982 U.S.C.C.A.N. at 4561.
Again, these words have much broader
meanings than ‘‘own’’ and ‘‘control.’’ ‘‘Procure’’ is defined as ‘‘to obtain or secure.’’
One may certainly ‘‘obtain’’ or ‘‘secure’’
housing without having to ‘‘own’’ or ‘‘control’’ that housing.
It has already been established that
Case Farms controlled the housing of the
1996 plaintiffs for the purposes of the
AWPA. Under the more expansive definition of ‘‘provides,’’ and based on the same
factual findings as the above consideration
of Case Farms’ ‘‘control’’ of the housing, it
is beyond question that Case Farms provided housing to the 1996 plaintiffs. Those
facts illustrate that Case Farms, on its
own and through its agents, procured
housing for the 1996 plaintiffs. It is, further, uncontested that there was no posting regarding the terms and conditions of
occupancy of the housing in which the 1996
plaintiffs lived. Perry Dep. at 94–95.
Thus, the 1996 plaintiffs, with the exceptions of Joseph Cooper, Sergio Hernandez,
and Eloy Cantu, have proven, by a preponcultural worker (for example, when an agricultural employer owns it and a farm labor
contractor operates it) both persons are responsible for ensuring that the facility or

derance of the evidence, that Case Farms
was in violation of 29 U.S.C. § 1821(c) of
the AWPA. Accordingly, Gerardo Castillo,
Edna Mae Chong, Efrain Leal, Rafael
Gonzalez, Jose Estrada, Martin Hernandez, Esperanza Hernandez, Hugo Hernandez, Jesus Mejia, Guadalupe Zamorano,
Ricard Zamorano, Raul Zavala and Michelle Galvan may recover under this provision.
The merit of the 1997 plaintiffs section
1821(c) claim is not so simply resolved. It
has previously been determined that Case
Farms did not control the 1997 plaintiffs’
housing. Given the broader definition of
‘‘provides’’ than of ‘‘owns or controls,’’ it is
possible that Case Farms provided housing to the 1997 plaintiffs without controlling that housing. This is, in fact, precisely what occurred. Upon arriving in Ohio,
the 1997 plaintiffs were met at the bus
station either by a Case Farms representative, or by Lopez at the request of Cilona, and then taken to one of Lopez’s apartment units. Case Farms would pay Lopez
for the 1997 plaintiffs’ security deposit and
first month’s rent shortly after these plaintiffs were placed in apartments. Cilona
assisted in arranging for housing to be
available when these workers arrived in
Ohio. Hence, Cilona clearly procured, and
therefore ‘‘provided’’ housing for these
plaintiffs.
As with the Perry apartments, it is uncontested that there were no postings at
the Lopez apartments regarding the terms
and conditions of occupancy of the housing.
Cilona Examination Tr. at 31; Trial Tr. at
310–311. Case Farms, as a provider of
migrant housing, was therefore in violation
of 29 U.S.C. § 1821(c) of the AWPA, as to
each of the 1997 plaintiffs. Accordingly,
Caballero, Estela Carreon, Gonzalez, Jose
Guevara, Juan Jimenez, Yolanda Leura, A.
Navarro, Carlos Reyna, Tomas Solis, Israel Trevino, and Urbana Zavala may recover under this provision. Such recovery
will be considered, infra, Section XI.
real property meets the applicable Federal
and State housing standards.
(emphasis added).

 CASTILLO v. CASE FARMS OF OHIO, INC.
Cite as 96 F.Supp.2d 578 (W.D.Tex. 1999)

VIII.

A.

Insurance and Inspection of Vehicles: Alleged Violations of 29
U.S.C. § 1841(b)
The Law

Plaintiffs allege that Case Farms violated the AWPA by failing to ensure that the
vehicles used to transport the plaintiffs
were properly insured and inspected. The
AWPA provides that an agricultural employer who uses, or causes to be used, any
vehicle for providing transportation to migrant agricultural workers shall (A) ensure that such vehicle conforms to the
standards prescribed by the Secretary, (B)
ensure that each driver has a valid and appropriate license, and (C) have an insurance policy or liability bond that is in
effect which insures the agricultural employer against liability.
29 U.S.C.
§ 1841(b)(1); 53 29 C.F.R. §§ 500.70(c),
500.100(a). According to the applicable
regulations, among the safety features required of any passenger automobile or station wagon used or caused to be used by
any farm labor contractor or agricultural
employer to transport any migrant agricultural worker are (1) an exhaust system
which discharges carbon monoxide away
from the passenger compartment and
which is free of leaks into the passenger
compartment, (2) a seat for each passenger which is securely fastened to the vehicle, and (3) windshield wipers that are operational to allow the operator full frontal
vision in all weather conditions. 29 C.F.R.
§ 500.104.
As with several previous claims, the underlying facts of the plaintiffs’ allegations
53.

In its entirety, this provisions reads:
(b) Applicability of standards, licensing,
and insurance requirements; promulgation of regulations for standards; criteria, etc., for regulations; amount of insurance required. (1) When using, or
causing to be used, any vehicle for providing transportation to which this section applies, each agricultural employer,
agricultural association and farm labor
contractor shall—
(A) ensure that such vehicle conforms to
the standards prescribed by the Secretary
under paragraph (2) of this subsection

623

are largely uncontested. For example, it
is undisputed that some of the plaintiffs
were, at times, crammed into a van with
nothing but cinder blocks and boards to sit
on, for example. The critical issue before
this court, however, is, once again, whether
Case Farms may be held liable for these
violations under the AWPA.
While Case Farms is correct that the
AWPA regulations ‘‘[do] not impose an
affirmative duty on a farmer to ensure that
a migrant laborer does not ever ride in
some other vehicle,’’ Ricketts v. Vann, 32
F.3d 71, 77 (4th Cir.1994), the area of
responsibility under the AWPA’s transportation provisions is quite broad. Not only
is an employer responsible for complying
with the AWPA transportation provisions
when it ‘‘specifically directs or requires a
farm labor contractor to use a vehicle to
transport workers,’’ Alviso–Medrano v.
Harloff, 868 F.Supp. 1367, 1374 (M.D.Fla.
1994), but ‘‘[r]esponsibility for compliance
with the motor vehicle safety and insurance provisions of [the AWPA] is imposed
upon the person or persons using or causing to be used, any vehicle for transportation of migrant or seasonal agricultural
workers.’’ 29 C.F.R. § 500.70(c). Responsibility is not dependent on an employment relationship between the agricultural employer and the plaintiff. See Deck
v. Peter Romein’s Sons, Inc., 109 F.3d 383,
391(7th Cir.1997).
Against this legal background, the transportation-based claims of each group of
plaintiffs were considered.
and other applicable Federal and State
safety standards,
(B) ensure that each driver has a valid and
appropriate license, as provided by State
law, to operate the vehicle, and
(C) have an insurance policy or a liability
bond that is in effect which insures the
agricultural employer, the agricultural association, or the farm labor contractor
against liability for damage to persons or
property arising from the ownership, operation, or the causing to be operated, of
any vehicle used to transport any migrant
or seasonal agricultural worker.
29 U.S.C. § 1841(b).

 624
B.

96 FEDERAL SUPPLEMENT, 2d SERIES

The 1996 Plaintiffs

[21] Under at least three legal theories, Case Farms is liable for plaintiffs’
alleged violations of the APWA’s transportation safety provisions.
The first is agency law. In regard to
the 1996 plaintiffs, Case Farms maintains
that the AWPA regulations explicitly immunize it from liability when they provide:
Additionally, these regulations do not
impose responsibility on an agricultural
employer or agricultural association for
a farm labor contractor’s failure to adhere to the safety provisions provided in
these regulations when the farm labor
contractor is providing the vehicles and
directing their use.
29 C.F.R. § 500.70(c). Case Farms maintains that ‘‘[i]t was ATC, not Case Farms,
that was ‘providing the vehicles and directing their use.’ ’’ Def. Post–Trial Brf. at 37
(quoting 29 C.F.R. § 500.70(c)).
Under many AWPA based civil actions,
such an argument would be meritorious.
Under this one, however, the facts have
previously demonstrated that ATC and Alvaro Hernandez were working within the
scope of their agency for Case Farms
when ATC recruited and supplied workers
for Case Farms’ plant. As has been previously determined, in this case, the actions
of ATC may, in fact, be said to be the
actions of Case Farms. Thus, Case Farms
did provide the vehicles and direct their
use, through the activities of ATC.
Second, it is determined from the specific facts of this case that the arrangement
54. According to Cilona, Case Farms arranged
transportation for its recruited workers by
arranging carpools and by providing a van or
bus service and deducting the costs of this
service from the workers’ pay. Cilona Examination Tr. at 8–11.
55. Case Farms rebuts this theory by stating
that ‘‘because every employee must get back
and forth to work somehow, plaintiffs’ argument would effectively eliminate the limitations contained in the statute and accompanying regulations.’’ Def. Response to Pl. Post–
Trial Brf., at 30. Defendant’s contention
misses the critical point that transportation

of transportation for recruited workers
was clearly a necessary element for obtaining workers for Case Farms’ poultry processing operation. Other courts have likewise held that, under the AWPA-derived
regulations, ‘‘[a]n employer is found to
have caused the transportation of harvest
workers by a farm labor contractor when
this transportation is a ‘necessary element
in obtaining the workers’ to harvest the
grower’s crop.’’ Saintida v. Tyre, 783
F.Supp. 1368, 1373 (S.D.Fla.1992) (quoting
Frenel v. The Freezeland Orchard Company, Inc., 108 Lab. Cases (CCH) paragraph
35,016, at page 45,415, 28 WH Cases
(BNA) 666,667 (E.D.Ca.1987)). In Saintida, the court found that few of the plaintiffs had vehicles, public transportation
was unavailable, and that workers relied
on assistance to get to the job site. Id.
Almost identical facts are found here. Cilona testified that it was essential to assist
recruited workers with transportation.
He, and Case Farms, knew that the plaintiffs generally did not have their own cars
in Ohio, Cilona Examination Tr. at 15–16,
and that no public transportation was
available to the Case Farms plant. Uncontested Facts ¶ 18. Case Farms began
arranging transportation for workers in
1995 because it knew the difficulties its
out-of-state workers had getting to the
plant.54 Cilona Examination Tr. at 15.
Thus, because the arrangement of transportation was obviously a necessary element of obtaining the workers’ labor, Case
Farms may be held liable for the violations
of the AWPA’s vehicle safety provisions.55
was a necessary element of providing the
workers. In a given situation, such as that in
the Saintida case (or in this one), it may be
found that providing transportation is a necessary element of providing workers. That is,
without this assistance with transportation,
the workers would not come to work.
Pointing to the phrase ‘‘to use the contractor’s vehicle,’’ Case Farms also argues that
‘‘the statute and regulations are clearly directed to the use of a specific vehicle and driver.’’
Def. Response to Pl. Post–Trial Brf., at 30.
This contention is found to be wholly unconvincing. The use of such an illustrative example does not preclude an agricultural employ-

 CASTILLO v. CASE FARMS OF OHIO, INC.
Cite as 96 F.Supp.2d 578 (W.D.Tex. 1999)

The third theory under which Case
Farms may be found responsible is that,
even outside of common law agency principles, Case Farms, as an agricultural employer, directed and required its farm labor contractor, ATC, to use vehicles to
transport the workers it recruited to Case
Farms’ plant. Cilona testified that he did
not tell ATC how it was to run its business. At the same time, however, Cilona
stated that ATC was instructed to ‘‘take
care of everything’’ and do whatever was
necessary to get the workers to the Case
Farms’ plant. Cilona Examination Tr. at
29. Alvaro Hernandez and Juan Lopez,
both of whom were Case Farms’ employees, transported workers. Cilona Examination Tr. at 26–278, 31–32. The fact that
Cilona supervised Alvaro Hernandez only
‘‘loosely’’ does nothing to alleviate Case
Farms’ responsibility under the AWPA.
So, under the AWPA’s network of worker
protections, Case Farms is responsible for
any use of unqualified vehicles in transporting the 1996 plaintiffs.
The final over-arching issues to be determined are whether the vehicles that
transported the 1996 plaintiffs conformed
to appropriate safety regulations, and
whether Case Farms failed to ensure that
they were driven by licensed drivers and
were properly insured. As will be detailed
below, each of the 1996 plaintiffs was
transported in a van driven by either Alvaro Hernandez or Juan Lopez. There seem
to have been two vans used. One had
wooden boards on cinder blocks rather
than seats. See Trial Tr. at 136–137. Uncontested testimony was presented that it
did not have operational windshield wipers,
and the windshield was often covered with
snow. It was further reported, without
contradiction by Case Farms, that this
same van had numerous holes in the floorboards through which exhaust fumes entered. Trial Tr. at 54. At times, this van
carried 18–20 passengers. It is clear that
this ‘‘ugly van,’’ as it was called by one
er’s liability under the many other ways in
which it might ‘‘use or cause to be used’’

625

plaintiff, violated a number of safety regulations.
It is further uncontested that Case
Farms did not attempt to determine
whether the transportation provided to the
1996 plaintiffs was properly insured, or
whether Alvaro Hernandez or Juan Lopez
had valid and appropriate drivers’ licenses.
Cilona Examination Tr. at 25–27.
It is against the background of these
facts that the following findings are made:
Gerardo Castillo. Case Farms’ employee Alvaro Hernandez drove this
plaintiffs to work at Case Farms in a
brownish-gray van that had boards instead of seats. Castillo Dep. at 55–59.
Approximately 16 others were in the van
at times. Passengers would have to
hold onto each other because the van
was so overcrowded. Plaintiff Castillo
also reported the lack of windshield wipers to remove the ice, and that the driver had to put his hand outside the van to
scrape off the ice. These facts were not
disputed by Case Farms. In light of
Case Farms’ failure to ensure that the
vehicle conformed to appropriate safety
regulations, that the vehicle was driven
by appropriately licensed drivers, and
that the vehicle was properly insured, it
is found that Castillo, by a preponderance of the evidence, has proven that
Case Farms violated 29 U.S.C.
§ 1841(b).
Edna Mae Chong (for the estate of
Josephine Tijerina) and Michelle Galvan. Plaintiffs Galvan and Tijerina
were also transported in a van that had
wooden planks instead of seats. Trial
Tr. at 135–137. Galvan reported that
riding in the van was very dangerous
because exhaust fumes leaked in, and
the ice that formed on the windshield
obstructed the view of the driver. Trial
Tr. at 139. These facts were not disputed by Case Farms. In light of Case
Farms’ failure to ensure that the vehicle
vehicles to transport migrant workers.

 626

96 FEDERAL SUPPLEMENT, 2d SERIES

conformed to appropriate safety regulations, and that the vehicle was driven by
appropriately licensed drivers, and that
the vehicle was properly insured, it is
found that Chong and Galvan, by a preponderance of the evidence, have proven
that Case Farms violated 29 U.S.C.
§ 1841(b).
Guadalupe Zamorano, Ricardo Zamorano, Raul Zavala, and Hugo Hernandez. These plaintiffs were transported together in a crowded van with
wooden seats and no seat belts. G. Zamorano Aff. ¶ 12. These facts were not
disputed by Case Farms. In light of
Case Farms’ failure to ensure that the
vehicle conformed to appropriate safety
regulations, and that the vehicle was
driven by appropriately licensed drivers,
and that the vehicle was properly insured, it is found that Guadalupe Zamorano, Ricard Zamorano, Zavala, and
Hernandez, by a preponderance of the
evidence, have proven that Case Farms
violated 29 U.S.C. § 1841(b).
Martin Hernandez and Esperanza
Hernandez.
These two plaintiffs,
brother and sister, were transported to
work by Alvaro Hernandez in a van that
leaked exhaust into the passenger compartment and that had wooden planks
instead of seats. Trial Tr. at 53–56.
These facts were not disputed by Case
Farms. Because Case Farms failed to
ensure that the vehicle conformed to
appropriate safety regulations, that the
vehicle was driven by appropriately licensed drivers, and that the vehicle was
properly insured, it is found that Martin
Hernandez and Esperanza Hernandez,
by a preponderance of the evidence,
have proven that Case Farms violated
29 U.S.C. § 1841(b).
Jesus Mejia, Jose Estrada, and Rafael Gonzalez. These three plaintiffs
each testified, independently, that they
rode in the van with wooden planks for
seats. Plaintiff Mejia rode with more
than 15 others in a single van driven by
Alvaro Hernandez that had wooden
boards on blocks instead of real sets.
Estrada also rode in a van with wooden

seats. The van was overcrowded. Estrada Aff. ¶ 10. Gonzalez was transported to work by Alvaro Hernandez in an
overcrowded van that had wooden
benches for seats. R. Gonzalez Aff.
¶ 11. These facts were not disputed by
Case Farms. Since Case Farms failed
to ensure that the vehicle conformed to
appropriate safety regulations, that the
vehicle was driven by appropriately licensed drivers, and that the vehicle was
properly insured, it is found that Mejia,
Estrada, and Gonzalez, by a preponderance of the evidence, have proven that
Case Farms violated 29 U.S.C.
§ 1841(b).
Efrain Leal. This plaintiff testified
that he was transported to work by Alvaro Hernandez in a van. It is inferred
by this court that this was the same van
that most of the other plaintiffs were
transported in. These facts were not
disputed by Case Farms. By reason of
Case Farms’ failure to ensure that the
vehicle conformed to appropriate safety
regulations, that the vehicle was driven
by appropriately licensed drivers, and
that the vehicle was properly insured, it
is found that Leal, by a preponderance
of the evidence, has proven that Case
Farms violated 29 U.S.C. § 1841(b).
Eloy Cantu, Joseph Cooper, and
Sergio Hernandez. These plaintiffs
never worked at Case Farms and were
never transported to Case Farms. They
present no claim under 29 U.S.C.
§ 1841(b) of the AWPA, and cannot recover under this provision.
C.

The 1997 Plaintiffs

Plaintiffs similarly allege that Case
Farms arranged and directed transportation for some of the 1997 plaintiffs, thereby
‘‘using or causing to be used’’ vehicles for
the transportation of those plaintiffs. The
1997 plaintiffs, however, had no dealings
with Case Farms’ agent ATC, and instead
were dealt with directly by Cilona. Cilona
provided uncontradicted testimony that
the 1997 plaintiffs were responsible for

 CASTILLO v. CASE FARMS OF OHIO, INC.
Cite as 96 F.Supp.2d 578 (W.D.Tex. 1999)

arranging carpools and paying for those
rides to work.
Several of the plaintiffs did ride to work
in carpools. The AWPA expressly precludes worker-arranged carpooling from
its scope, but ‘‘carpooling does not include
any transportation arrangement in which a
farm labor contractor participates or which
is specifically directed or requested by an
agricultural
employer.’’
29
C.F.R.
§ 500.100(c) (emphasis added). Hence,
one issue before this court is whether Case
Farms ‘‘specifically directed or requested’’
a carpool arrangement. Plaintiffs presented no convincing evidence that Case
Farms did so.
Cilona did, however, direct Lopez, the
apartment manager, to transport workers
on occasion. A few plaintiffs were transported by Lopez, on perhaps only one
occasion, from the bus station to the apartment, not to and from work. The workers
that received such transportation from Lopez testified that the vehicles were nice,
newer vehicles, without obvious safety hazards. Case Farms concedes, however,
that it did not verify Ms. Lopez’s driver’s
license or insurance on her vehicle in connection with her transporting these few
individuals. Lopez admitted that she was
not registered to transport migrant agricultural workers. Case Farms submits,
however, that if this is a violation at all, it
‘‘is the very definition of a de minimus
violation of the AWPA.’’ Def. Response to
Pl. Post–Trial Brf. at 33.
Half of the 1997 plaintiffs (Estela Carreon, Juan Jimenez, Aurora Navarro, Carlos Reyna, Israel Trevino, and Urbana Zavala) have no section 1841(b) claims
against Case Farms. As to the remaining
plaintiffs, the following findings are made:
Gustavo Caballero. Plaintiff Caballero testified that he was transported
by Lopez, and that his foreman at Case
Farms arranged transportation to work
for him. Case Farms, however, points
out that at trial Caballero testified that
he was only transported by Lopez on
one occasion, when she picked him up
from the bus station and took him to his

627

apartment. Also, this plaintiff stated
that his foreman simply placed him in
contact with another employee who
might be willing to provide him with
transportation. It is found that Caballero, has proven by a preponderance of
the evidence, that Case Farms violated
29 U.S.C. § 1841(b) by directing Lopez
to transport him without having checked
her license or the insurance on the vehicle. The de minimus nature of this
violation will be considered in the determination of damages, infra.
Carlos Gonzalez, Daniel Leura, Tomas Solis. This plaintiff testified that
he, Leura, and Solis were, on one or
two occasions, transported from the
apartments to the Case Farms plant by
Lopez. Trial Tr. 258. Case Farms
contends that there was only one such
occasion, and it was from the bus station to their apartment. Because such
transportation came at the direction of
Case Farms, It is found that Gonzalez,
Leura, and Solis, have proven by a preponderance of the evidence, that Case
Farms violated 29 U.S.C. § 1841(b) by
directing Lopez to transport him without having checked her license or the
insurance on the vehicle. The de minimus nature of this violation will be considered in the determination of damages, infra.
Jose Guevara. Plaintiff Guevara testified that Cilona directed a man nicknamed ‘‘Capulina’’ to transport him back
and forth to work. Guevara Aff. ¶ 12.
However, this testimony was revealed to
be mere speculation on cross-examination. Thus, Guevara has not met his
burden of proving, by a preponderance
of the evidence, that Case Farms violated 29 U.S.C. § 1841(b) by directing ‘‘Capulina’’ to transport him.
IX. Proper Pay Statements: Alleged
Violations of 29 U.S.C. 1821(d)(2)
In their third amended complaint, the
1996 plaintiffs allege that Case Farms violated the AWPA’s recordkeeping provi-

 628

96 FEDERAL SUPPLEMENT, 2d SERIES

sions by failing to make and provide to
each 1996 worker for each pay period a
proper pay statement. These provisions
of the AWPA provide that ‘‘each farm
labor contractor, agricultural employer,
and agricultural association which employs
any migrant agricultural worker shall’’
provide to each worker for each pay period
an itemized written statement including
information regarding the bases on which
the wages are paid, the number of hours
worked, the total pay period earnings, the
specific sums withheld and the purpose of
each sum withheld, and the net pay. 29
U.S.C. § 1821(d)(1) & (2). Although Case
Farms argues they are not valid, the relevant regulations state that these pay statements must also include the employer’s
name, address, and identification number
assigned by the Internal Revenue Service.
29 C.F.R. § 500.80(d).
Samples of plaintiffs’ pay statements
were introduced into evidence at trial.
See Exhibit P–4. These sample stubs include all items required by section
1821(d)(1), including the bases on which
the wages are earned (hourly rate of $5.50
straight time, $8.25 overtime), the number
of hours worked, the total pay period earnings, the specific sums withheld and the
purpose of each sum withheld, and the net
pay.56 Exhibit P–4. As Case Farms points
out, plaintiff Rafael Gonzalez was the only
1996 plaintiff who claimed to have not received one of these pay stubs.57 He acknowledged, however, having received notations on his envelope.
56. No piecework count was required, as the
plaintiffs were paid on an hourly, rather than
a piecework basis.
57. This plaintiff testified that, instead, there
were notations regarding the deductions from
his pay written on his pay envelope. Plaintiffs argue that the court may infer that the
pay statements received by Rafael Gonzalez
when he received pay from ATC were, at best,
like those contained in Trial Exh. P–4, which
are the pay statements received by other
plaintiffs who were recruited, hired, and paid
by ATC.
58. In this respect, the following findings are
made:

Thus, both parties agree on what statements most of the 1996 plaintiffs received.
And, Case Farms concedes that, as a joint
employer of the ‘‘ATC employees’’ with
respect to payroll related allegations, it is
covered by section 1832(d)’s recordkeeping
requirements.
Case Farms contends,
however, that the pay statements received
by those 1996 plaintiffs that worked for
Case Farms were in complete compliance
with the AWPA.
It is determined by this court, if not
conceded by the plaintiffs, that the pay
statements, as presented to the 1996 plaintiffs, were in compliance with section
1821(d)(1), the provision of the statute that
sets forth the information required to be
on a pay statement.58 All of these elements appear on each of the pay statements that were provided by ATC to the
1996 plaintiffs. Exhibit P–4.
The AWPA-derived regulations, however, establish that a payment statement
must also include ‘‘the employer’s name,
address, and employer identification number assigned by the Internal Revenue Service.’’ 29 C.F.R. § 500.80(d). It is clear
that the payment statements at issue here
did not comply with this regulation.
Case Farms contends that the requirements contained in 29 C.F.R. § 500.80(d)
are invalid because ‘‘they clearly exceed
the specific requirements of the statute.’’
Def. Response to Pl. Post–Trial Brf. at 34.
Case Farms cites a Gun Control Act case
for the proposition that a regulation may
Gerardo Castillo, Michelle Galvan, Josephine Tijerina, Hugo Hernandez, Esperanza
Hernandez, Martin Hernandez, Jesus Mejia,
Guadalupe Zamorano, Jose Estrada, Rafael
Gonzalez, Raul Zavala, Ricard Zamorano,
and Efrain Leal received pay statements substantially similar to those represented by Exhibit P–4, containing the required information
under section 1821(d)(1).
Eloy Cantu, Sergio Hernandez, and Joseph
Cooper did not work at Case Farms, and
never received a paycheck. Accordingly, they
have no claim under section § 1821(d)(1) &
(2).

 CASTILLO v. CASE FARMS OF OHIO, INC.
Cite as 96 F.Supp.2d 578 (W.D.Tex. 1999)

not expand a statute’s record keeping requirements. See National Rifle Association v. Brady, 914 F.2d 475, 484 (4th Cir.
1990). Defendant’s invitation for this
court to invalidate this federal regulation
is declined.
[22, 23] In critically examining statutorily-derived regulations, a court’s review is
governed by the standards set forth in
Chevron, U.S.A., Inc. v. NRDC, 467 U.S.
837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984),
and its progeny. The Supreme court
there stated that ‘‘[i]f the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency,
must give effect to the unambiguously expressed intent of Congress.’’ Id. at 842–
43, 104 S.Ct. 2778. And, ‘‘where Congress
has entrusted an agency with implementation of a statutory scheme, that agency’s
interpretation of the statutory terms is
entitled to substantial deference.’’ Motley
v. Heckler, 800 F.2d 1253, 1254–55 (4th
Cir.1986).
In regard to the AWPA, Congress’s intent to protect migrant workers is clear.
Furthermore, the AWPA itself specifically
gives the Secretary power to provide specific requirements for compliance with the
AWPA.
See,
e.g.,
29
U.S.C.
§ 1841(b)(1)(A). It is determined that the
requirements outlined by 29 C.F.R.
§ 500.80(d) are, in fact, valid, as legitimate
derivations of the Congressional intent as
outlined in the statute.

629

jerina, Hugo Hernandez, Esperanza Hernandez, Martin Hernandez, Jesus Mejia,
Guadalupe Zamorano, Jose Estrada, Rafael Gonzalez, Raul Zavala, Ricard Zamorano, and Efrain Leal have, therefore, proven, by a preponderance of the evidence,
that Case Farms has violated the AWPA
by failing to comply with its recordkeeping
provisions.60 Such violations are, in this
instance, merely technical. This fact will
be considered in the determination of damages, infra, Section XI.
The 1997 plaintiffs have not alleged a
violation of 29 U.S.C. § 1821(d)(2).
X. Paid Wages When Due: Alleged Violations of 29 U.S.C. 1822(a)
The plaintiffs’ final claim under the
AWPA is brought under its payment of
wages provision. Section 1822(a) states
that ‘‘each farm labor contractor, agricultural employer, and agricultural association which employs any migrant agricultural worker shall pay the wages owed to
such worker when due.’’ 29 U.S.C.
§ 1822(a). The regulations clarify that the
AWPA requires that employees must be
paid ‘‘no less often than every two weeks
(or semi-monthly).’’ 29 C.F.R. § 500.81.

[24] Thus, insofar as the pay statements received by the 1996 plaintiffs fail to
include ‘‘the employer’s name, address,
and employer identification number assigned by the Internal Revenue Service,’’ 59
they are in violation of the AWPA. Gerardo Castillo, Michelle Galvan, Josephine Ti-

Rather than allege that Case Farms
waited more than two weeks to give them
paychecks, the 1996 plaintiffs attempt to
use these payment of wages provision of
the AWPA to recover for Case Farms’
alleged failure to provide them with a W–2
form. The plaintiffs’ legal theory is summarized as follows:
Although each 1996 plaintiff that worked
on Case Farms production line had Social Security taxes deducted from his/her
pay, none received a W–2 form for these
wages, showing that these amounts were

59. In this respect, the following findings are
made:

hibit P–4, which did not include the requirements of 29 C.F.R. § 500.80(d).

Gerardo Castillo, Michelle Galvan, Josephine Tijerina, Hugo Hernandez, Esperanza
Hernandez, Martin Hernandez, Jesus Mejia,
Guadalupe Zamorano, Jose Estrada, Rafael
Gonzalez, Raul Zavala, Ricard Zamorano,
and Efrain Leal received pay statements substantially similar to those represented by Ex-

60. In the alternative, Case Farms argues that
these violations of AWPA’s record keeping
provisions amount to only technical violations
of the AWPA, and that the fact that the information listed in the statute itself was provided
argues in favor of a minimal award. This
court agrees.

 630

96 FEDERAL SUPPLEMENT, 2d SERIES

in fact paid as taxes to the IRS. Thus,
Case Farms as the joint employer of
these plaintiffs, even when they were
being paid by ATC, failed to provide
them with pay statements as required
by the AWPA, and failed to pay them
their full wages owed—the Social Security taxes deducted but not paid to the
IRS—when due.
Pl. Post–Tr. Brf. at 51.61
These plaintiffs point to Plaintiffs’ Exhibit 4 as evidence that social security
taxes were deducted from their pay.
While these hand written pay statements
include a column showing the deduction of
state and local taxes, it is unclear whether
social security taxes were deducted. Such
evidence was not adduced from testimony
at trial, either. Thus, without commenting
on the viability of the 1996 plaintiffs’ legal
theory, it is determined that insufficient
evidence has presented to find any violation, by Case Farms, of 29 U.S.C.
§ 1822(a).

tiff per violation, or other equitable reliefTTTT’’ 29 U.S.C. § 1854(c)(1).62 Thus, if
a court awards statutory, rather than actual, damages, the award must be $500 or
less for each violation of the AWPA. Actual damages, however, do not have a cap
under the AWPA.63

XI.

Before determining the types and
amounts of damages appropriate for each
of Case Farms’ violations of the AWPA, it
is necessary to establish the ground rules
for assessing statutory and actual damages
under the Act.

Damages for Violations of the
AWPA

[25] A number of violations of the
AWPA by Case Farms having been found,
it is necessary to consider what damages
are due to the plaintiffs. The determination of damages for violations of the
AWPA is, generally, governed by 29
U.S.C. § 1854(c). This provision provides
that a court may award ‘‘actual damages,
statutory damages of up to $500 per plain61. The plaintiffs cite several cases as supporting this theory of Case Farms’ liability. (See
Appx to Pl. Am. Post–Tr. Brf. at Tab 19 and
20).
62. The AWPA’s damages provisions read as
follows:
(c) Award of damages or other equitable
relief; amount; criteria; appeal.
(1) If the court finds that the respondent
has intentionally violated any provision of
this Act or any regulation under this Act,
it may award damages up to and including an amount equal to the amount of
actual damages, or statutory damages of
up to $500 per plaintiff per violation, or
other equitable relief, except that (A) multiple infractions of a single provision of

Plaintiffs seek the maximum statutory
damages for many of the violations, and
lesser damages for those that can be
termed ‘‘technical.’’ Alternatively, in some
cases, plaintiffs seek actual damages in
excess of $500 for the mental anguish and
humiliation they suffered as a result of the
way they were housed and transported to
and from work.
Case Farms, maintaining that the violations that occurred were merely ‘‘technical,’’ responds that the maximum statutory
awards are not warranted in this case.
Case Farms also rejects the plaintiffs’ contention that ‘‘actual damages’’ under the
AWPA should include recovery for mental
anguish and humiliation.

A.

The Assessment
Damages

of

Statutory

[26] A number of factors must go into
a court’s determination of statutory damthis Act or of regulations under this Act
shall constitute only one violation for purposes of determining the amount of statutory damages due a plaintiff; and (B) if
such complaint is certified as a class action, the court shall award no more than
the lesser of up to $500 per plaintiff per
violation, or up to $500,000 or other equitable relief.
(2) In determining the amount of damages
to be awarded under paragraph (1), the
court is authorized to considered whether
an attempt was made to resolve the issues
in dispute before the resort to litigation.
63. ‘‘There is no limit on the amount of actual
damages that can be awarded.’’ 128 Cong.
Rec. 32463 (1982) (Senator Hatch).

 CASTILLO v. CASE FARMS OF OHIO, INC.
Cite as 96 F.Supp.2d 578 (W.D.Tex. 1999)

ages under the AWPA. These include the
nature and persistence of the violations,
the extent of the defendant’s culpability,
damage awards in similar cases, the defendants’ ability to prevent future violations
of the Act, the substantive or technical
nature of the violation, the circumstances
of each case, the adequacy of an award to
encourage workers to assert their rights,
the total number of plaintiffs involved, the
total number of violations, the total
amount to be assessed against the defendant, any recovery by the plaintiffs on
closely related claims joined in the same
suit that will in part compensate damage
caused by violations of the Act, and the
total amount of the award. Maldonado v.
Lucca, 636 F.Supp. 621 (D.N.J.1986) citing
Beliz, 765 F.2d at 1332–33.
Using factors such as these, courts within the purview of the United States Court
of Appeals for the Fifth Circuit have
awarded widely ranging statutory damages, from $15 per violation to the maximum of $500. Awards of the maximum
$500 are not uncommon. See, e.g., Montelongo v. Meese, 803 F.2d 1341, 1350 (5th
Cir.1986); Washington v. Miller, 721 F.2d
797 (11th Cir.1983); Bertrand v. Jorden,
672 F.Supp. 1417 (M.D.Fla.1987); Alzalde
v. Ocanas, 580 F.Supp. 1394 (D.Colo.1984).
However, at least one federal district court
in Texas has stated that ‘‘[t]he maximumTTT is not the norm.’’ Aviles v. Kunkle, 765 F.Supp. 358, 368 (S.D.Tex.1991).
[27] A court must also keep in mind
that the primary purpose of the Act’s statutory awards provisions is promoting compliance by agricultural employers, ‘‘and
thereby deter[ring] and correct[ing] the
exploitative practices that have historically
64. The plaintiffs persuasively remind the
court that the AWPA’s statutory damages
range was established in 1983. Since then,
the value of the dollar has decreased significantly. So, to achieve Congress’ intent to
both compensate wronged plaintiffs, and to
deter agricultural employers from mistreating
workers, courts may need to consider the
changed consumer price index. Today, a
$500 damage award might be necessary to
achieve the same level of deterrence as $300
in 1983.

631

plagued the migrant farm labor market.’’
Beliz, 765 F.2d at 1332 (relating to the
AWPA’s predecessor, the FLCRA). By
reason of this purpose, ‘‘it ought not to be
cheaper to violate the Act and be sued
than to comply.’’ Id. at 1332–33. This
court agrees that awards must be adequate to encourage workers to assert their
statutory rights.64 All of these factors, as
well as the precedent for awarding the
maximum statutory penalties for the specific violations committed by Case Farms,65
were considered in assessing the proper
amount of statutory damages in this civil
action.
The violations of the AWPA that have
been found in this civil action do warrant
serious repercussions for Case Farms. In
1963, when Congress first attempted to
protect migrant workers with the FLCRA,
it was responding to evidence ‘‘that in
many cases the contractor tends to exaggerate conditions of employment when he
recruits workers in their home base or
that he fails to inform them of their working conditions at all; tends to transport
them in unsafe vehicles; fails to furnish
promised housing or else furnishes substandard and unsanitary housingTTT’’ H.
REP. NO. 93–1439, at 5 (1974). The
AWPA was passed because the FLCRA
had failed to right these wrongs. Unfortunately, judging from the facts of this civil
action, such activities apparently have not
ceased.
Case Farms failed to abide by even the
most basic of the AWPA’s requirements.
It used an unlicensed farm labor contractor. It failed to give certain plaintiffs
written disclosures. From these initial vi65. See, e.g., Howard v. Malcolm, 658 F.Supp.
423, 437–38 (E.D.N.C.1987) (substantive
housing violations); Davis v. Williams, 622
F.Supp. 386 (W.D.N.Y.1985) (substantive
housing violations, use of an unregistered
farm labor contractor, misrepresenting the
conditions of employment, failure to pay
wages owed when due, and breach of working agreement); Alzalde, 580 F.Supp. at 1394
(failing to post conditions of housing); Bertrand, 672 F.Supp. at 1417 (failing to provide
accurate pay statements).

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96 FEDERAL SUPPLEMENT, 2d SERIES

olations, the problems compounded with
each new step in the hiring process. Case
Farms failed to follow its working agreements with many of the plaintiffs, and it
knowingly gave plaintiffs false and misleading information about housing and
transportation. Simply stated, some plaintiffs were subjected to grossly unsanitary,
dangerous, and overcrowded housing and
transportation. Moreover, Case Farms attempted to avoid liability for this mistreatment of its workers by shifting the focus of
this litigation to its strategically placed
intermediary, ATC. The Congressional history of this statute directly condemns such
attempts:
It is, therefore, the intent of the committee that any attempt to evade the responsibilities imposed by this Act
through spurious agreements among
such parties be rendered meaningless;
to make clear that it is the economic
reality, not contractual levels, nor isolated factors which is to determine employment relationships under this Act.
H.R. REP. NO. 97–885 (1982), reprinted in
1982 U.S.C.C.A.N. 4547.
The AWPA was designed not only to
punish, but also prevent such behavior.
Such purposes can only be fulfilled by
stringent penalties for violation of the Act.
As other courts have determined, some
violations of the AWPA deserve a serious
and deterrent statutory penalty:
Violations of [the disclosure and misleading information] provisions are significant, substantive violations, not
merely technical violations because one
of the primary purposes of [the AWPA]
was to provide agricultural workers with
information concerning potential employment so they could make an intelligent and informed judgment about
whether to accept employment.
Smith v. Bonds, 1993 WL 556781, *13
(E.D.N.C.1993).
[28] In an attempt to mitigate any
award of damages to the plaintiffs, Case
Farms emphasizes that it did not believe it
was subject to the AWPA at the time
these plaintiffs worked at Case Farms. It

is well settled, however, that the AWPA is
not a ‘‘specific-intent’’ statute. Castillo v.
Givens, 704 F.2d 181, 197–198 (5th Cir.
1983), Rodriguez v. Carlson, 943 F.Supp.
1263, 1271 (E.D.Wash.1996); Saintida v.
Tyre, 783 F.Supp. 1368 (S.D.Fla.1992);
Howard v. Malcolm, 658 F.Supp. 423
(E.D.N.C.1987). That is, neither Case
Farms’ ignorance, nor its stance that it is
not covered by the law, can excuse its
violations of the AWPA. Furthermore,
even if the AWPA did not exist, it is
indisputable that Case Farms failed to
treat many of the plaintiffs with basic fairness and human dignity. Such behavior,
under the AWPA, demands heavy sanction.
B.

The Assessment of Actual Damages

[29] As an alternative to the $500 maximum statutory damages, the plaintiffs, in
some instances, seek actual damages.
Plaintiffs argue that actual damages
should include compensation for their mental anguish, humiliation, and inhumane
treatment, and that, therefore, such damages at times are higher than the $500
statutory maximum. Case Farms, however, maintains that there is no legal basis
for including compensation for mental anguish and humiliation under the umbrella
of ‘‘actual damages.’’
The AWPA itself does not define ‘‘actual
damages.’’ And, whether or not mental
anguish and humiliation may be included
their calculation seems to be an unresolved
issue. The plaintiffs cite the Fifth Circuit’s decision in Johnson v. Department of
Treasury, 700 F.2d 971 (5th Cir.1983), for
its determination that ‘‘ ‘actual damages’
under the Privacy Act does indeed include
damages for physical and mental injury for
which there is competent evidence in the
record, as well as damages for out-of-pocket expenses.’’ Id. at 972. Case Farms
counters, however, that this decision was
based on the specific legislative history of
the Privacy Act itself, and is not applicable
generally to other statutes. Moreover, in

 CASTILLO v. CASE FARMS OF OHIO, INC.
Cite as 96 F.Supp.2d 578 (W.D.Tex. 1999)

the process of considering the issue, the
Fifth Circuit commented ‘‘that the term
‘actual damages’ has no plain meaning or
consistent legal interpretation.’’ Id. at
974.
It seems clear to this court, however,
that the Migrant and Seasonal Agricultural Worker Protection Act was enacted, in
part, to protect the dignity of a group of
workers that has historically been treated
in a demeaning and inhumane manner.
The AWPA was expressly designed to ‘‘reverse the historical pattern of abuse and
exploitation of migrant and seasonal farm
workers,’’ 1982 U.S.C.C.A.N. 4549. Emotional distress, humiliation, and mental anguish have been found to be components of
‘‘actual damages’’ under other federal laws
that are designed to reverse historical patterns of abuse and exploitation, such as the
Fair Housing Act, and the Fair Credit
Reporting Act. See Steele v. Title Realty
Co., 478 F.2d 380, 384 (10th Cir.1973) (interpreting the ‘actual damages’ provision
of the Fair Housing Act of 1968 to include
emotional distress and humiliation); Millstone v. O’Hanlon Reports, Inc., 528 F.2d
829, 834–35 (8th Cir.1976) (holding that
actual damages under the Fair Credit Reporting Act include damages for ‘‘loss of
sleep, nervousness, frustration and mental
anguish’’).
The Deluxe Black’s Law Dictionary, 6th
Ed., defines ‘‘actual damages’’ as ‘‘compensation for actual injuries or loss.’’ It goes
without question that compensation for a
broken leg would be part of a plaintiffs’
‘‘actual damages.’’ The fact that an injury
is suffered mentally, rather than physically, does not make the injury any less real.
See Ruiz v. Johnson, 37 F.Supp.2d 855,
914–915 (S.D.Tex.1999). Without commenting on the factual issue of their actual
damages at this point, it is found, as a
legal proposition, that the calculation of
actual damages under the AWPA may include compensation for mental anguish and
humiliation.

633

C.

The Plaintiffs’ Damages

1.

Use of Unregistered Farm Labor
Contractors

[30] The 1996 plaintiffs proved, by a
preponderance of the evidence, that Case
Farms violated 29 U.S.C. § 1842, by using
ATC, an unregistered farm labor contractor. As indicated above, in most instances,
compliance with this threshold requirement would have ensured Case Farms’
conformity with a number of the other
provisions of the AWPA. Having considered all of the factors pertinent to an
assessment of damages under the AWPA,
and for the reasons discussed above, it is
determined that Eloy Cantu, Gerardo Castillo, Edna Mae Chong (representing the
estate of deceased plaintiff Josephine Tijerina), Efrain Leal, Rafael Gonzalez, Sergio Hernandez, Jose Guadalupe Estrada,
Martin Hernandez, Esperanza Hernandez,
Joseph Cooper, Hugo Hernandez, Jesus
Mejia, Guadalupe Zamorano, Ricardo Zamorano, Raul Zavala, and Michelle Galvan
are each entitled to statutory damages of
$500.00 for Case Farms’ violation of 29
U.S.C. § 1842.
The 1997 plaintiffs brought no claim under this section of the AWPA.
2.

Failure to Provide Written Disclosures

As determined in Section II above, Case
Farms violated 29 U.S.C. § 1821(a)’s requirement that agricultural employer disclose, in writing, certain information at the
time of recruitment. Each of the 1996
plaintiffs proved, by a preponderance of
the evidence, that they were not provided
with the AWPA-required written disclosures. Having taken into consideration all
of the factors previously mentioned, it is
determined that each of the 1996 plaintiffs
should be assessed the maximum statutory award available under the act. Thus,
Eloy Cantu, Gerardo Castillo, Edna Mae
Chong (representing the estate of deceased plaintiff Josephine Tijerina), Efrain
Leal, Rafael Gonzalez, Sergio Hernandez,

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96 FEDERAL SUPPLEMENT, 2d SERIES

Jose Guadalupe Estrada, Martin Hernandez, Esperanza Hernandez, Joseph Cooper, Hugo Hernandez, Jesus Mejia, Guadalupe Zamorano, Ricardo Zamorano,
Raul Zavala, and Michelle Galvan are each
entitled to statutory damages of $500.00
for Case Farms’ violation of 29 U.S.C.
§ 1821(a).
Of the 1997 plaintiffs, only two, Aurora
Navarro and Urbana Zavala, proved, by a
preponderance of the evidence, that they
were not provided with any written disclosures. These two plaintiffs, therefore, are
also each entitled to statutory damages of
$500.00.
Four other 1997 plaintiffs, Gustavo Caballero, Jose Guevara, Yolanda Leura (for
the deceased plaintiff Daniel Leura), and
Tomas Solis, proved, by a preponderance
of the evidence, that Case Farms violated
only item (8), relating to workers’ compensation coverage, of 29 U.S.C. § 1821(a).
In fact, Case Farms concedes this violation, but urges that it is a mere ‘‘technical’’
violation, and does not warrant substantial
statutory damages for these plaintiffs.
This court agrees. Hence, these four
plaintiffs are awarded statutory damages
for this technical violation of 29 U.S.C.
§ 1821(a), in the amount of $50.00 each.
3.

Providing False or Misleading Information

As determined in Section III above,
Case Farms violated 29 U.S.C. § 1821(f)
by providing the 1996 plaintiffs with false
or misleading information. The 1997
plaintiffs, however, failed to meet their
burden of proof on this claim.

Efrain Leal, Rafael Gonzalez, Sergio Hernandez, Jose Guadalupe Estrada, Martin
Hernandez, Esperanza Hernandez, Joseph
Cooper, Hugo Hernandez, Jesus Mejia,
Guadalupe Zamorano, Ricardo Zamorano,
Raul Zavala, and Michelle Galvan are each
entitled to statutory damages of $500.00
for Case Farms’ violation of 29 U.S.C.
§ 1821(f).
4.

Failure to Comply with the Terms
of the Working Agreement

It has further been determined, by a
preponderance of the evidence, that Case
Farms failed to comply with the terms of
its working agreement with each of the
1996 plaintiffs, in violation of 29 U.S.C.
§ 1822(c). For the reasons outlined above,
it is determined that Eloy Cantu, Gerardo
Castillo, Edna Mae Chong (representing
the estate of deceased plaintiff Josephine
Tijerina), Efrain Leal, Rafael Gonzalez,
Sergio Hernandez, Jose Guadalupe Estrada, Martin Hernandez, Esperanza Hernandez, Joseph Cooper, Hugo Hernandez, Jesus Mejia, Guadalupe Zamorano, Ricardo
Zamorano, Raul Zavala, and Michelle Galvan are each entitled to statutory damages
of $400.00 for Case Farms’ violation of 29
U.S.C. § 1822(c).
None of the 1997 plaintiffs, however,
met their burden of proving Case Farms’
violation of 29 U.S.C. § 1822(c).
5.

Failure to Comply with Housing
Health and Safety Codes

Case Farms’ violations in this regard
were particularly egregious. Based on the
totality of the circumstances of this case, it
is determined that each of the 1996 plaintiffs should be awarded the maximum statutory damages provided for by the AWPA.
Thus, Eloy Cantu, Gerardo Castillo, Edna
Mae Chong (representing the estate of
deceased plaintiff Josephine Tijerina),

A number of the 1996 plaintiffs proved,
by a preponderance of the evidence, that
Case Farms violated 29 U.S.C. § 1823(a),
by failing to ensure that the housing complied ‘‘with substantive Federal and State
safety and health standards applicable to
that housing.’’ The housing provided to
the 1996 plaintiffs was particularly shameful and shocking, especially the housing
provided to plaintiff Martin Hernandez
and his sister Esperanza.66 It is deter-

66. Martin Hernandez broke down on the
stand as he recounted the shame of having
brought his sister into a situation in which

she would have to sleep on the stairs to escape the stench of the raw sewage in his
apartment.

 CASTILLO v. CASE FARMS OF OHIO, INC.
Cite as 96 F.Supp.2d 578 (W.D.Tex. 1999)

mined that Gerardo Castillo, Edna Mae
Chong (representing the estate of deceased plaintiff Josephine Tijerina), Efrain
Leal, Rafael Gonzalez, Jose Guadalupe Estrada, Hugo Hernandez, Jesus Mejia, Guadalupe Zamorano, Ricardo Zamorano, Raul
Zavala, and Michelle Galvan are each entitled to statutory damages of $500.00 for
Case Farms’ violation of 29 U.S.C.
§ 1823(a). It is further determined that,
due to the horrendous conditions they endured, and the obvious mental anguish it
has caused them, Martin Hernandez and
Esperanza Hernandez should be awarded
actual damages in the amount of $1,000.00
each. The remaining three 1996 plaintiffs,
Eloy Cantu, Sergio Hernandez, Joseph
Cooper, have no claim under 29 U.S.C.
§ 1823(a).
None of the 1997 plaintiffs met their
burden of proving Case Farms’ violation of
29 U.S.C. § 1823(a).
6.

Failure to Secure the Certificate
of Occupancy

As determined above in Section VI, a
number of 1996 plaintiffs proved, by a
preponderance of the evidence, that Case
Farms violated 29 U.S.C. § 1823(b), by
failing to secure a certificate of occupancy
from ‘‘either a state or local health authority, or other appropriate agency, stating
that the housing meets applicable safety
and health standards.’’ Once again, if
Case Farms had complied with this threshold requirement, the egregious violations
of the AWPA’s housing provisions could
not have occurred. It is determined that
Gerardo Castillo, Edna Mae Chong (representing the estate of deceased plaintiff Josephine Tijerina), Efrain Leal, Rafael Gonzalez, Jose Guadalupe Estrada, Martin
Hernandez, Esperanza Hernandez, Hugo
Hernandez, Jesus Mejia, Guadalupe Zamorano, Ricardo Zamorano, Raul Zavala, and
Michelle Galvan are each entitled to statutory damages of $400.00 for Case Farms’
violation of 29 U.S.C. § 1823(b). The remaining three 1996 plaintiffs, Eloy Cantu,
Sergio Hernandez, and Joseph Cooper,
have no claim under 29 U.S.C. § 1823(b).

635

None of the 1997 plaintiffs met their
burden of proving Case Farms’ violation of
29 U.S.C. § 1823(b).
7.

Failure to Post the Terms and
Conditions of Housing Occupancy

Similarly, as determined above in Section VII, a number of the 1996 plaintiffs
proved, by a preponderance of the evidence, that Case Farms violated 29 U.S.C.
§ 1821(c), by failing to post in a conspicuous place a statement of the terms and
conditions of occupancy of the housing.
Based on the egregiousness of the subsequent housing violations, it is determined
that Gerardo Castillo, Edna Mae Chong
(representing the estate of deceased plaintiff Josephine Tijerina), Efrain Leal, Rafael Gonzalez, Jose Guadalupe Estrada, Martin Hernandez, Esperanza Hernandez,
Hugo Hernandez, Jesus Mejia, Guadalupe
Zamorano, Ricardo Zamorano, Raul Zavala, and Michelle Galvan are each entitled
to statutory damages of $300.00 for Case
Farms’ violation of 29 U.S.C. § 1821(c).
The remaining three 1996 plaintiffs, Eloy
Cantu, Sergio Hernandez, Joseph Cooper,
have no claims under 29 U.S.C. § 1821(c).
The 1997 plaintiffs met their burden of
providing Case Farms violation of 29
U.S.C. 1821(c), as well. Thus, it is determined that Gustavo Caballero, Estela Carreon, Carlos Gonzalez, Jose A. Guevara,
Juan A. Jimenez, Yolanda Leura (representing the estate of her deceased son
plaintiff Daniel Leura), Aurora Navarro,
Carlos Reyna, Tomas Solis, Israel Trevino,
and Urbana Zavala are each entitled to
statutory damages of $300.00 for Case
Farms’ violation of 29 U.S.C. § 1821(c).
8.

Failure to Insure and Inspect Vehicles

The same group of 1996 plaintiffs
proved, by a preponderance of the evidence, that Case Farms violated 29 U.S.C.
§ 1841(b), by failing to ensure that the
vehicles used to transport the plaintiffs
were properly insured and inspected. The
evidence adduced at trial revealed that

 636

96 FEDERAL SUPPLEMENT, 2d SERIES

plaintiffs were subjected to overcrowded,
uncomfortable, and dangerous transportation conditions. It is, therefore, determined that Gerardo Castillo, Edna Mae
Chong (representing the estate of deceased plaintiff Josephine Tijerina), Efrain
Leal, Rafael Gonzalez, Jose Guadalupe Estrada, Martin Hernandez, Esperanza Hernandez, Hugo Hernandez, Jesus Mejia,
Guadalupe Zamorano, Ricardo Zamorano,
Raul Zavala, and Michelle Galvan are each
entitled to statutory damages of $400.00
for Case Farms’ violation of 29 U.S.C.
§ 1841(b). The remaining three 1996
plaintiffs, Eloy Cantu, Sergio Hernandez,
Joseph Cooper, have no claim under 29
U.S.C. § 1841(b).
As detailed above in Section VII, several
of the 1997 plaintiffs met their burden of
proving Case Farms’ violation of 29 U.S.C.
§ 1841(b). It is determined that these
plaintiffs, Gustavo Caballero, Carlos Gonzalez, Yolanda Leura (representing the estate of her deceased son, plaintiff Daniel
Leura), and Tomas Solis, are each entitled
to statutory damages for Case Farms’ violation of 29 U.S.C. § 1841(b). Given the
de minimus nature of the violation, however, their award shall be limited to $50.00
each.1997 plaintiffs Estela Carreon, Jose
A. Guevara, Juan A. Jimenez, Aurora Navarro, Carlos Reyna, Israel Trevino, and
Urbana Zavala failed to meet their burden
on this claim, and cannot recover statutory
damages.

ceased plaintiff Josephine Tijerina), Efrain
Leal, Rafael Gonzalez, Jose Guadalupe Estrada, Martin Hernandez, Esperanza Hernandez, Hugo Hernandez, Jesus Mejia,
Guadalupe Zamorano, Ricardo Zamorano,
Raul Zavala, and Michelle Galvan are each
entitled to damages of $50.00 for Case
Farms’ de minimus violation of 29 U.S.C.
§ 1821(d)(2). The remaining three 1996
plaintiffs, Eloy Cantu, Sergio Hernandez,
Joseph Cooper, have no claim under 29
U.S.C. § 1821(d)(2).
10.

Failure to Provide Wages When
Due

The 1996 plaintiffs failed to meet their
burden of proving, by a preponderance of
the evidence, that Case Farms failed to
pay them wages when due. The 1997
plaintiffs did not bring a claim under 29
U.S.C. § 1822(a). Case Farms, therefore,
has no liability under this provision of the
AWPA.
PART IV
ALLEGED VIOLATIONS
OF THE FLSA
I.

The Fair Labor Standards Act

A number of the 1996 plaintiffs proved,
by a preponderance of the evidence, that
Case
Farms
violated
29
U.S.C.
§ 1821(d)(2), by failing to make, and provide to each of them a proper pay statement for each period. The 1997 plaintiffs
did not bring such a claim. It is determined that Gerardo Castillo, Edna Mae
Chong (representing the estate of de-

In addition to their AWPA-based allegations, a number of the migrant worker
plaintiffs 67 claim that Case Farms violated
the minimum wage provisions of the Fair
Labor Standards Act (‘‘FLSA’’), 29 U.S.C.
§ 201, et. seq. The FLSA was first enacted in 1938 to ‘‘eliminate low wages and
long hours’’ and to ‘‘free commerce from
the interferences arising from production
of goods under conditions that were detrimental to the health and well-being of
workers.’’ 29 U.S.C. § 201; see Brennan
v. Veterans Cleaning Service, Inc., 482
F.2d 1362, 1368 (5th Cir.1973). The FLSA
established a minimum wage, regulations
concerning maximum hours, record keep-

67. Only fifteen of the twenty-seven plaintiffs
raised claims under the Fair Labor Standards
Act. The 1996 plaintiffs who did so are Michelle Galvan, Esperanza Hernandez, Martin
Hernandez, Efrain Leal, Josephine Tijerina,

and Raul Zavala. The 1997 plaintiffs who did
so are Gustavo Caballero, Estela Carreon,
Carlos Gonzalez, Jose Guevara, Juan Jimenez,
Daniel Leura, Tomas Solis, Israel Trevino,
and Urbana Zavala.

9.

Failure to Provide Proper Pay
Statements

 CASTILLO v. CASE FARMS OF OHIO, INC.
Cite as 96 F.Supp.2d 578 (W.D.Tex. 1999)

ing and reporting requirements, child labor provisions, and a system of civil and
criminal penalties for violation of its provisions. 29 U.S.C. § 201, et seq. Originally
exempting agricultural workers from its
protections, the FLSA was amended in
1966 to extend its minimum wage protections to some agricultural workers. See S.
REP. No. 89–1487 (1966), reprinted in
1966 U.S.C.C.A.N. 3002. It is uncontested
that the plaintiffs in this civil action are
protected by the FLSA.
Perhaps the most well-known provisions
of the FLSA are its minimum wage directives. The FLSA requires certain employers 68 to pay to each of its employees
wages of ‘‘not less than $4.25 an hour
during the period ending on September 30,
1996, not less than $4.75 an hour during
the year beginning on October 1, 1996, and
not less than $5.15 an hour beginning September 1, 1997.’’ 29 U.S.C. § 206(a)(1).
At issue in this civil action is whether
Case Farms fulfilled its legal obligation to
pay minimum wage to some of the plaintiffs. As one might expect, this question is
complicated considerably by the fact that
Case Farms made certain deductions from
the plaintiffs’ pay, for requisite tools and
safety gear, as well as for housing and
transportation. Thus, to determine whether a minimum wage violation has occurred
under the FLSA, this court must make
reference to the web of statutory, and
judicially-developed, rules that govern the
role of such deductions in the calculation of
a workers’ hourly rate of pay.
II.

The Rules for Calculating Minimum Wage Violations

The most basic theorem of FLSA’s minimum wage requirements is that a workers’
wages be paid ‘‘free and clear:’’
Whether in cash or in facilities, ‘‘wages’’
cannot be considered to have been paid
by the employer and received by the
68. It is undisputed that Case Farms is obligated to pay its employees minimum wage.
Case Farms is a business engaged in commerce or the production of goods for commerce and had at all relevant times annual
gross sales of at least $500,000.

637

employee unless they are paid finally
and unconditionally or ‘‘free and clear.’’
The wage requirements of the Act will
not be met where the employee ‘‘kicksback’’ directly or indirectly to the employer or another person for the employer’s benefit the whole or part of the
wage delivered to the employee.
29 C.F.R. § 531.35. That is, the FLSA
prohibits employers from taking certain
self-serving deductions from a worker’s
pay. The plaintiffs in this civil action allege that the transportation deductions
made from the 1996 plaintiffs’ pay were
illegal because both Case Farms and ATC,
acting on Case Farms’ behalf, directly and
indirectly profited from the transaction.
[31] The requirement that wages be
paid ‘‘free and clear,’’ does not mean, however, that deductions from a workers pay
are per se illegal. Deductions for necessary equipment or supplies are illegal
when such deductions deprive a worker of
the federally mandated minimum wage or
overtime pay. The FLSA-derived regulations, promulgated by the United States
Department of Labor, provide that
[I]f it is a requirement of the employer
that the employee must provide tools of
the trade which will be used in or are
specifically required for the performance
of the employer’s particular work, there
would be a violation of the Act in any
workweek when the cost of such tools
purchased by the employee cuts into the
minimum or overtime wages required to
be paid to him [or her] under the Act.
29 C.F.R. § 531.35. It is the contention of
some of the plaintiffs in this civil action
that Case Farms’ deductions for ‘‘tools of
the trade’’ 69 lowered their hourly wages to
below FLSA’s minimum wage.
[32] Deductions for housing may, in
some instances, also be legally made by an
69. Among these ‘‘tools of the trade’’ listed by
the plaintiffs are hair nets, earplugs, safety
glasses, plastic hats, gloves, aprons, and work
boots.

 638

96 FEDERAL SUPPLEMENT, 2d SERIES

employer. The FLSA expressly allows an
employer to count as wages ‘‘the reasonable cost TTT to the employer of furnishing
such employee with board, lodging, or other facilities, if such board, lodging or other
facilities are customarily furnished by such
employer to TTTemployees.’’ 29 U.S.C.
§ 203(m). An employer may not, however,
deduct from wages money for housing
when that housing is seriously substandard.70 Osias v. Marc, 700 F.Supp. 842, 845
(D.Md.1988). ‘‘Facilities furnished in violation of any Federal, State, or local law,
ordinance or prohibition will not be considered facilities ‘customarily’ furnished’’ for
the purpose of the FLSA. 29 C.F.R.
§ 531.31.
It is in the context of these rules of
calculation, that the plaintiffs in this civil
action bring two types of FLSA claims.
First, some of them (a subset of the 1997
plaintiffs) allege that once certain illegal
deductions are considered, they were paid
less than minimum wage. Second, another
group (made up of subsets of both the 1996
and the 1997 plaintiffs) argues that certain
illegal deductions from their wages create
violations of the FLSA’s overtime provisions.
III.

Case Farms’ Alleged Minimum
Wage Violations

Only some of the 1997 plaintiffs claim
that Case Farms violated the (non-overtime related) minimum wage provisions of
the FLSA. Plaintiffs Gustavo Caballero,
Estela Carreon, Carlos Gonzalez, Jose
Guevara, Yolanda Leura, Tomas Solis, and
Urbana Zavala complain that once deductions are considered, their pay stubs reflect below-minimum-wage payments. Pl.
Ex. 42.
70. Under Case Farms’ failed ‘‘third party’’payment theory, the issue of whether the
housing was substandard would be immaterial. Because Case Farms itself customarily
provided the housing to the 1996 plaintiffs,
however, the housing conditions become relevant to the propriety of the Case Farms’ deductions from some plaintiffs’ wages.

In making these calculations, plaintiffs
used the following formula:
actual gross pay received = net pay
received v authorized/legal deductions
Then, to determine the hourly rate paid a
given plaintiff in a given workweek, the
plaintiffs used the following formula:
hourly rate paid = actual gross pay
received y hours worked
These formulas, in theory, are applicable
to the case at hand. Generally speaking,
the actual damages due to a plaintiff who
suffers a minimum wage violation is the
amount of the unpaid minimum wages,
which is equal to the applicable minimum
wage multiplied by the hours worked minus the actual gross pay received. 29
U.S.C. § 216(b).
[33, 34] As plaintiffs acknowledge,
however, they ‘‘have calculated both their
minimum wage and overtime claims based
on the assertion that any deductions from
plaintiffs’ pay for substandard housing,
[and] for necessary supplies, TTT to be
illegal.’’ It has previously been determined that, as to the 1997 plaintiffs, Case
Farms did not furnish housing. Rather,
Case Farms made deductions to be paid to
a third party on behalf of the 1997 plaintiffs. Such a practice is permitted under
the FLSA, and does not amount to a violation or ‘‘waiver’’ 71 of the FLSA. Brennan
v. Veterans Cleaning Service, 482 F.2d
1362 (5th Cir.1973). Hence, Case Farms
was within its authority to make housing
deductions, as to the 1997 plaintiffs, if the
plaintiffs consented to the deductions.
It is found that, with one exception,
consent can be implied for the housing
deductions as to the 1997 plaintiffs. The
71. It is beyond question that workers cannot
waive their rights under the FLSA, even by
agreement. Mireles v. Frio Foods, Inc., 899
F.2d 1407, 1411 n. 4 (5th Cir.1990). Of
course, ‘‘when the employer is the creditor,
payment may not be made by paycheck deductions which reduce net pay below minimum wage, even where the employee apparently consents to such an arrangement.’’
Veterans Cleaning Service, 482 F.2d at 1370.

 CASTILLO v. CASE FARMS OF OHIO, INC.
Cite as 96 F.Supp.2d 578 (W.D.Tex. 1999)

only 1997 plaintiff (bringing overtime violation allegations) who did not confer with
either Case Farms or Garcia at the Texas
Workforce Commission prior to beginning
her employment at Case Farms was Urbana Zavala. She was not, then, put on
notice of Case Farms’ plan to reimburse a
third party. Case Farms concedes, therefore, that she is entitled to FLSA damages
of $73.20, which includes liquidated damages.
If the remainder of the 1997 plaintiffs’
wages are recalculated without deducting
the housing charges, it appears that they
were not deprived of the minimum wage,
and cannot recover the FLSA minimum
wage damages that they seek. Hence,
Gustavo Caballero, Estela Carreon, Carlos
Gonzalez, Jose Guevara, Yolanda Leura,
and Tomas Solis have failed to meet their
burden of proving Case Farms violated
FLSA’s non-overtime minimum wage provisions.
IV.

Case Farms’ Alleged
Wage Violations

Overtime

A different group of Case Farms workers, made up of both 1996 and 1997 plaintiffs, allege that Case Farms violated the
FLSA by failing to provide them with the
law’s minimum overtime wages. The
FLSA requires employers to pay workers
at least ‘‘time-and-a-half’’ for time they
work over forty hours per week.72 29
U.S.C. § 207(a)(1). Utilizing a similar
equation as the one described above, Estela Carreon, Michelle Galvan, Carlos Gonzalez, Jose Guevara, Esperanza Hernandez,
Martin Hernandez, Juan Jimenez, Efrain
Leal, Tomas Solis, Josephine Tijerina, I.
Tevino, Raul Zavala, and Urbana Zavala
maintain that illegal deductions bring their
72. The FLSA regulations governing overtime
wage calculations state:
If the employee is employed solely on the
basis of a single hourly rate, the hourly rate
is his [or her] ‘‘regular rate.’’ For his [or
her] overtime work he [or she] must be
paid, in addition to his [or her] straight
time hourly earnings, a sum determined by
multiplying one-half the hourly rate by the
number of hours worked in excess of 40 in

639

salaries below FLSA’s minimum requirements.
It appears, however, that, as Case
Farms points out, the plaintiffs made a
fundamental error in the formula they
used to reach their conclusions. The gross
wage actually received by a plaintiff was
calculated using the following formula:
actual gross wage received = net pay
received v authorized/legal deductions
According to the plaintiffs, if the actual
gross wage received by a plaintiff was less
than the gross wage due the plaintiff, an
overtime violation occurred.
The regulations, however, indicate that
‘‘[i]t is the Administrator’s opinion that
deductions may be made, however, on the
same basis in an overtime workweek as in
a nonovertime workweek (see § 531.36), if
their purposes and effect are not to evade
the overtime requirements of the Act or
other law.’’ 29 C.F.R. § 531.37. In completing their calculations, the plaintiffs ignored an employer’s right to make deductions from the straight time portion of the
employee’s wages as long as those deductions do not bring the employee below the
minimum wage. That is, if a worker’s
straight time salary is more than minimum
wage, that ‘‘extra’’ payment creates, in effect, a buffer for deductions by an employer.
For example, in a situation where $1.60
an hour is the applicable minimum wage,
if an employee is employed at a rate of
$1.65 an hour (5 cents in excess of the
minimum wage) the maximum amount
which may be deducted from his wages
in a 40–hour workweek for itemsTTT
which are not ‘‘facilities’’TTTis 40 times 5
cents or $2. Deductions in excess of this
the week. Thus a $6 hourly rate will bring,
for an employee who works 46 hours, a
total weekly wage of $294 (46 hours at $6
plus 6 [hours] at $3). In other words, the
employee is entitled to be paid an amount
equal to $6 an hour for 40 hours and $9 an
hour for the 6 hours of overtime, or a total
of $294.
29 C.F.R. § 778.110(a).

 640

96 FEDERAL SUPPLEMENT, 2d SERIES

amount for such articles are illegal in
overtime workweeks as well as in nonovertime workweeks.
Plaintiffs’ calculations did not take into
consideration the fact that the plaintiffs, in
many instances, appear to have been paid
a base-rate, straight time wage that was
higher than the minimum wage, thus creating a ‘‘buffer’’ for deductions by Case
Farms.
A.

The 1996 Plaintiffs’ Overtime Allegations

[35] It is clear that Case Farms made
unauthorized deductions for housing from
the 1996 plaintiffs wages, because deductions were taken for substandard housing.73 And, as stated previously, it is beyond argument that much of the housing
provided to the plaintiffs was in violation
of federal health and safety codes. It is
unclear, however, whether these deductions—once consideration is given to Case
Farms’ right to make deductions from
money earned in excess of minimum
wage—brought these plaintiffs’ hourly
wages below minimum wage.
The damages calculations made by plaintiffs for the 1996 plaintiffs must be adjusted to reflect the fact that Case Farms
could make deductions so long as the regular-hour pay rate did not fall below minimum wage. Thus, the following findings
are made:
Michelle Galvan. Plaintiff Galvan
worked three overtime weeks at Case
Farms during February, 1996. For the
week of February 3, 1996, Galvan
worked 58.94 hours, at a regular wage
rate of $5.50/hour. She was therefore
owed $220 straight pay wages and
$156.26 for her overtime work, a total of
$376.26. She was paid $339.26. According to the plaintiffs’ calculations, the difference between those two numbers
($37.00) is owed for the illegal deductions taken that week. Pl.Ex. 4, 6, 42,
73. For the purposes of the FLSA, it is found
that housing was ‘‘customarily’’ furnished to
the 1996 plaintiffs by Case Farms through its
agents. This court begins, therefore, with the
presumption that Case Farms may make

43. However, because the minimum
wage at the time was $4.25/hour, and
she was paid $5.50/hour for the regular
40–hour week, Case Farms has a $1.25/
per hour of work ‘‘buffer’’ for which
deductions are not illegal. This comes
to $50.00 per week. In other words,
Case Farms is not in violation of the
FLSA unless it unless it made more
than $50 dollars in deductions in a given
week. Because Case Farms, for Galvan,
made deductions of $37.00, $5.00, and
$17.28, in the three weeks she worked,
Galvan has not met her burden of showing a violation of the FLSA overtime
provisions by Case Farms.
Edna Mae Chong (for the estate of
Josephine Tijerina). The same reasoning applies to the plaintiffs’ calculations
of overtime damages for the estate of
plaintiff Tijerina. She was paid $5.50
or, eventually, $6.25/hour for her work.
Case Farms is only liable for illegal
deductions that would bring her pay below the minimum wage at the time of
$4.25. Such was not the case, as the
deductions taken from Tijerina’s paycheck were for $37.00, $6.87, $22.62, and
$17.99. Pl.Ex. 4, 6, 15, 42, 43. Chong,
for Tijerina, has therefore not met her
burden of showing a violation of the
FLSA overtime provisions by Case
Farms.
Esperanza Hernandez. 1996 plaintiff
Esperanza Hernandez worked nine
overtime weeks at Case Farms. Pl.Ex.
42. She was paid a base-rate $5.50/hour
for three of those weeks and $6.25/hour
for six of those weeks. During the
weeks in which she made $5.50/hour
($1.25 more than minimum wage), Case
Farms was entitled to make up to $50.00
in deductions without violating the
FLSA. During those weeks, the deductions never exceeded $50. Pl.Ex. 42.
During the weeks in which she made
housing deductions from the 1996 plaintiffs
wages for housing-a presumption quickly
overcome by the substandard housing provided to these plaintiffs.

 CASTILLO v. CASE FARMS OF OHIO, INC.
Cite as 96 F.Supp.2d 578 (W.D.Tex. 1999)

$6.25/hour ($2.00 more than minimum
wage), Case Farms was entitled to take
up to $80.00 in deductions without violating the FLSA. During those weeks, on
one occasion, the week of February 3,
1996, Case Farms deducted $127.94
from her paycheck. See Pl.Ex. 4, 14, 15
42, 43. Thus, this plaintiff’s paycheck
fell below the level of minimum wage.
As a result, Case Farms violated the
FLSA. Hernandez’s actual damages
would therefore be $47.94. Actual and
liquidated damages for this violation
come to $95.88.74
Martin Hernandez. Plaintiff Martin
Hernandez, brother of Esperanza Hernandez, worked six overtime weeks at
Case Farms. He was paid a base-rate
of $5.50/hour for three of those weeks
and $6.25/hour for three of those weeks.
During the $5.50/hour weeks, the deductions taken never exceeded $50.00, so
Case Farms did not violate the FLSA.
During one of the other weeks, Hernandez worked (an astonishing) 114.76
hours and $128.68 in deductions were
taken. See pl. Ex. 4, 14, 42, 43. Because Case Farms could only legally
take $80.00 in deductions, Hernandez
has proven actual damages of $48.68.
Actual and liquidated damages for this
violation come to $97.36.
Raul Zavala. 1996 plaintiff Zavala
worked one overtime week, the week of
February 3, 1996, when the minimum
wage under the FLSA was $4.25/hour.
He was paid $5.50 an hour, giving Case
Farms a $50.00 ‘‘buffer’’ for deductions
before it would violate the FLSA. Only
$37.00 in deductions were taken. See
Pl.Ex. 4, 42, 43. Zavala has therefore
not met his burden of showing a violation of the FLSA overtime provisions by
Case Farms.
74. The FLSA provides for an award of actual
damages, plus an equal amount of statutory
liquidated damages. 29 U.S.C. § 206(b).
75. Urbana Zavala’s overtime claims are undermined by the same ‘‘buffer’’ problem that
faced the 1996 plaintiffs’ claims. She was,

641

Efrain Leal. This 1996 plaintiff also
worked only one overtime week, the
week of March 9, 1996. He was paid a
base-rate of $6.25/hour, which was $2.00
over the minimum wage at the time.
Thus, Case Farms would not violate the
FLSA unless it took more than $80.00
(40 hours times $2.00) in deductions.
Only $14.34 in deductions were taken.
Leal has therefore not met his burden of
showing a violation of the FLSA overtime provisions by Case Farms.
No other 1996 plaintiffs brought overtime violation allegations. Thus the only
damages to be awarded for violations of
the FLSA by Case Farms are in the
amount of $97.36 to Martin Hernandez,
and in the amount of $95.88 to Esperanza
Hernandez.
B.

The 1997 Plaintiffs’ Overtime Allegations

While the housing was similarly atrocious and obnoxious for the 1997 plaintiffs,
nevertheless, because Case Farms did not
furnish it, such deductions as to the 1997
plaintiffs do not create FLSA violations, if
they were consented to, as payments for a
third party. As already mentioned, all of
the relevant 1997 plaintiffs, except for Urbana Zavala,75 can be said, for FLSA purposes, to have consented to such deduction
for repayment to a third party. This fact,
combined with the same formulaic problem
as faced the 1996 plaintiffs, undermines
the 1997 plaintiffs’ overtime claims. It is
therefore determined that Estela Carreon,
Carlos Gonzalez, Jose Guevara, Juan Jimenez, Tomas Solis, and Urbana Zavala have
not met their burden of proving, by a
preponderance of the evidence, that Case
Farms violated the overtime provisions of
the AWPA. No 1997 plaintiffs, therefore,
are entitled to damages under the FLSA.
for all weeks but one, paid $2.00 over the
minimum wage, giving Case Farms the right
to make up to $80.00 in deductions per week
before a FLSA violation would occur. No
such violation occurred. See Pl.Ex. 16, 17,
18, 19, 42, 43.

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96 FEDERAL SUPPLEMENT, 2d SERIES

PART V
ALLEGED VIOLATIONS
OF STATE LAW
The plaintiffs also raised several state
law claims against Case Farms-breach of
contract, fraud, and negligent misrepresentation. Each of these claims, under
Texas law, requires the plaintiffs to prove
that Case Farms made a promise or representation to them that was either false
when made or that was later breached.
See, American Tobacco Company, Inc. v.
Grinnell, 951 S.W.2d 420, 436 (Tex.1997).
As Case Farms acknowledges, ‘‘[t]hese
three common law claims have the same
factual basis as two of the AWPA violations alleged by Plaintiffs.’’ Def. Post–
Trial Brf., at 48. Section 1822, which prohibits the violation of the terms of a working arrangement, is analogous to a breach
of contract claim. Section 1821, which
bars an employer or farm labor contractor
from ‘‘knowingly providing false or misleading information to workers,’’ is generally analogous to a common law fraud
claim. Finally, a negligent misrepresentation claim is similar to a fraud claim, except that the misrepresentation is negligent, rather than intentional.
I.

Case Farms’ Alleged Breach of Contract

[36] To prove a breach of contract under Texas law, a plaintiff must show, by a
preponderance of the evidence, (1) the existence of a valid contract, (2) the plaintiff’s
performance or tender of performance; (3)
the defendant’s breach; and (4) the plaintiff’s damage as a result of the breach.
Hussong v. Schwan’s Sales Enterprises,
896 S.W.2d 320, 326 (Tex.App.-Houston
[1st Dist.] 1995, n.w.h.). In the process of
addressing plaintiffs’ AWPA-based claims
that Case Farms failed to comply with the
terms of the working arrangement in violation of 29 U.S.C. § 1822(c), and that Case
Farms provided the plaintiffs with false or
misleading information in violation of 29
U.S.C. § 1821(f), this court has already
made findings on each of the elements of a
Texas breach of contract claim.

[37] The ‘‘working arrangement made
by [the] contractor, employer, or association with any migrant agricultural worker’’
in regard to section 1822(c) represents a
valid contract. The plaintiffs agreed to
travel to Ohio, and to work for Case
Farms. In return, Case Farms, or persons acting on its behalf, promised plaintiffs that they could work for Case Farms,
that they would be paid for this work, and
that suitable housing and transportation
would be provided to them for at least the
first month of their employment with Case
Farms.
As previously outlined, the contracts arranged with the 1996 plaintiffs were significantly different from those arranged with
the 1997 plaintiffs. While all the plaintiffs
entered valid contracts (or ‘‘working arrangements’’) at recruitment, and both
sets of plaintiffs generally performed, Case
Farms was only found to have breached
the agreement in regard to the 1996 plaintiffs. On the same factual bases, it is
found that Case Farms breached its contract with the 1996 plaintiffs, but not with
the 1997 plaintiffs.
Although it is found that Case Farms
breached its contracts with the 1996 plaintiffs, it is also determined that an award of
damages for breach of contract would be
duplicative or the damages awarded for
Case Farms’ violations of the AWPA. No
additional damages will be awarded to the
plaintiffs under this claim.
II.

Case Farms’ Alleged Negligence

[38] To prevail on their negligent misrepresentation claims under Texas law, the
plaintiffs must prove that (1) Case Farms
made some representation in the course of
its business; (2) Case Farms supplied the
false information for the guidance of others in their business; (3) Case Farms did
not exercise reasonable care or competence in obtaining or communicating the
information; and (4) the plaintiff suffered
pecuniary loss by justifiably relying on the
representation. Clardy Mfg. Co. v. Ma-

 CASTILLO v. CASE FARMS OF OHIO, INC.
Cite as 96 F.Supp.2d 578 (W.D.Tex. 1999)

643

rine Midland Business Loans, 88 F.3d
347, 359 (5th Cir.1996).

evidence from which this court can reasonably estimate damages.

As inferred above, the negligent misrepresentation claims of all plaintiffs seek recovery for the same actions that support
their AWPA claims alleging violation of 29
U.S.C. § 1822(c) (relating to alleged violations of the terms of the ‘‘working arrangements’’), 29 U.S.C. § 1821(f) (relating to
the alleged knowing provision of false or
misleading information), and 29 U.S.C.
§ 1821(a) (relating to failure to provide
written disclosures). Thus, it has already
been determined that Case Farms, and its
agent ATC, made representations to the
plaintiffs in the course of Case Farms’
business. It is also settled that Case
Farms, through ATC, supplied the 1996
plaintiffs with false information. Such a
finding has not been, and cannot be made
as to 1997 plaintiffs, however. The 1997
plaintiffs
negligent
misrepresentation
claims must, therefore, fail.

For the foregoing reasons, and based on
the factual findings made in reference to
the plaintiffs’ claims under sections
1821(a), 1821(f), and 1822(c), none of the
plaintiffs have met their burden of proving
their claims of negligent misrepresentation
against Case Farms.

The 1996 plaintiffs have also established
the third element of a negligent misrepresentation claim. ATC, acting on behalf of
Case Farms, failed to exercise reasonable
care in its recruitment process and in communicating information regarding work,
housing, and transportation to the 1996
plaintiffs.
Thus, the final hurdle for the 1996 plaintiffs is to demonstrate that they have suffered pecuniary losses by their justifiable
reliance on Case Farms’ information.
Only two 1996 plaintiffs have presented
such evidence, Michelle Galvan and Edna
Mae Chong (for the estate of Josephine
Tijerina). These two plaintiffs claim that,
because of Case Farms’ misrepresentations, they had to buy a car for $500. See
Pl. Am. Post–Trial Brf, Tab 14. Case
Farms responds that these two plaintiffs
were paid by other workers for rides in
that car. Furthermore, they enjoyed the
use of the car for some period. The plaintiffs, however, failed to quantify the
amount of money they received and the
time they used the car. Thus, it is determined that they have failed to produce

III.

Case Farms’ Alleged Fraud

[39] Finally, the plaintiffs alleged that
Case Farms defrauded them under Texas
law. To recover for fraud, a plaintiff must
prove that (1) a material representation
was made; (2) it was false when made; (3)
the speaker knew it to be false, or made it
recklessly without knowledge of its truth
and as a positive assertion; (4) the speaker
made it with the intent that it should be
acted upon; and (5) the party acted in
reliance and suffered injury as a result.
Clardy Mfg. Co. v. Marine Midland Business Loans, 88 F.3d 347, 359 (5th Cir.
1996). For the same reasons outlined
above in reference to the plaintiffs’ negligent representation claims, all the plaintiffs’ have failed to prove that Case Farms
defrauded them. That is, the 1997 plaintiffs claims fail because those plaintiffs
failed to prove that they were provided
with false information by Case Farms.
The 1996 plaintiffs’ claims fail because
none of them have demonstrated that they
suffered a quantifiable injury as a result of
acting in reliance on Case Farms’ false
representations.
CONCLUSION
Congress, through both the FLCRA
and the AWPA, has made clear its intentions to provide mistreated migrant farm
workers redress. An agricultural employer may not take advantage of migrant
workers’ diminished bargaining position
by enticing them with false promises or
subjugating them to unsafe, unsanitary, or
unconscionable living and working conditions. Case Farms’ deplorable treatment
of the plaintiffs in this civil action repre-

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96 FEDERAL SUPPLEMENT, 2d SERIES

sents precisely the mistreatment that the
AWPA was enacted to prevent and punish.
It is found, based on the evidence presented to this court, by a preponderance of the
evidence, that Case Farms violated the
law in its treatment of the plaintiffs, in the
manners and ways set forth herein, and
that plaintiffs should be awarded judgment therefor.

,
RESOLUTION TRUST CORPORATION As Receiver for First Savings Arkansas, S.A. Plaintiff,
v.
TEXAS MOLINE LTD., and Dean
H. Maddox, Defendants.
Civil Action No. H–92–1692.
United States District Court,
S.D. Texas,
Houston Division.
Jan. 21, 2000.
Attempting to satisfy judgment debt,
assignee moved for turnover relief, seeking
to seize money periodically received by
judgment debtor as management, accounting, administrative, and tax fees for services rendered. Judgment debtor claimed
that payments sought were exempt from
seizure as wages. The District Court, Rosenthal, J., held that judgment debtor provided management, financial, accounting,
and tax services for various business entities as independent contractor, not employee.
Motion for turnover granted.
1. Execution O402(1)
Texas turnover statute is the procedural device by which judgment creditors
may reach assets of a debtor that are
otherwise difficult to attach or levy on by
ordinary legal process; it allows a court to
reach assets owned and subject to the

control of a judgment debtor. V.T.C.A.,
Civil Practice & Remedies Code § 31.002.
2. Exemptions O148
Judgment debtor, as party claiming
that payments were exempt from turnover
pursuant to Texas turnover statute, bore
burden of proving that fees and income at
issue were exempt wages paid to him as
employee. V.T.C.A., Civil Practice &
Remedies Code § 31.002(a)(2).
3. Exemptions O48(2)
Judgment debtor provided management, financial, accounting, and tax services for various business entities as independent contractor, not employee, and
thus could not claim payments received as
exempt wages under Texas law; although
judgment debtor’s long-term relationships
with entities and fact that his work was
part of entities’ regular business supported
contention that he was employee, such factors did not overcome evidence that judgment debtor primarily worked out of own
office and directed and supervised own
employees, that judgment debtor was not
treated as employee on entities’ payroll
systems until judgment creditor’s assignee
sought turnover of payments received, and
that judgment debtor had not reported
payments as wages on federal income tax
form. Vernon’s Ann.Texas Const. Art. 16,
§ 28; V.T.C.A., Property Code § 42.001.
4. Exemptions O147
To qualify for a wage exemption under Texas law, judgment debtor was required to allege and prove concrete facts
showing that he was receiving current
wages for personal services from a particular person with whom he had an employer/employee
relationship.
Vernon’s
Ann.Texas Const. Art. 16, § 28; V.T.C.A.,
Property Code § 42.001.
5. Master and Servant O1, 5
Under Texas law, the critical test for
distinguishing an employee from an independent contractor is whether the employer has the right to control the progress,