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UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
THOMAS E. PEREZ, Secretary )of Labor, United States )Department of Labor, )
) Civil Action No. _____________Plaintiff )
)v. )
) COMPLAINTKDE EQUINE, LLC, ) (Injunctive Relief Sought)d/b/a STEVE ASMUSSEN STABLES, )and STEVE ASMUSSEN, )
)Defendants )
This cause of action, which arises under the Fair Labor
Standards Act of 1938, as amended, 29 U.S.C. § 201, et seq.,
(hereinafter “FLSA” or “the Act”), is brought by the Plaintiff
pursuant to authority granted by Section 11(a) and Section 16(c) of
the Act, 29 U.S.C. § 211(a) and § 216(c).
I
Jurisdiction hereof is conferred upon the Court by
Section 17 of the Act, 29 U.S.C. § 217, to enjoin violations of the
Act and to restrain the withholding of back wages due under the
Act; and by 28 U.S.C. § 1345 to award additional amounts, equal to
back wages due, as liquidated damages under Section 16(c) of the
Act, 29 U.S.C. § 216(c).
3:15-cv-562-DJH
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II
A. Defendant, KDE Equine, LLC, is an active limited
liability company organized under the laws of the State of Texas,
having conducted business at Churchill Downs racetrack, 700 Central
Avenue, Louisville, Kentucky, 40208 within the jurisdiction of this
Court, and at all times hereinafter mentioned, has been engaged in
the training of horses.
B. Defendant, Steve Asmussen, at all times hereinafter
mentioned, as a member and the president, has acted directly or
indirectly in the interest of defendant KDE Equine, LLC,
d/b/a Steve Asmussen Stables, in relation to its employees, and
therefore, has been, and is, an employer within the meaning of
Section 3(d) of the Act, 29 U.S.C. § 203(d). Although defendant
Asmussen is believed to be a resident of the State of Texas, he has
substantial contacts within the jurisdiction of this Court due to
his business activities vis a vis defendant KDE Equine, LLC,
d/b/a Steve Asmussen Stables, at Churchill Downs racetrack,
700 Central Avenue, Louisville, Kentucky, 40208.
C. Since January 24, 2013, defendants KDE Equine, LLC,
d/b/a Steve Asmussen Stables, and Steve Asmussen, have been under a
permanent injunction issued by the United States District Court for
the Eastern District of New York to ensure their compliance with
the FLSA, including but not limited to the payment of minimum
wages, overtime wages, and the requirement to make, keep, and
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preserve adequate records of their employees, as prescribed by the
Regulations issued pursuant to Section 11(c) of the Act and found
at 29 CFR Part 516. Defendants further agreed to pay backwages and
liquidated damages in the total amount of $29,095.97 to employees
performing services for defendants prior to July 21, 2012 in
New York state. A copy of the permanent injunction and consent
judgment is attached hereto as Exhibit A and incorporated herein by
reference.
III
A. Defendants, at all times hereinafter mentioned, have
suffered or permitted to work employees and therefore have been
employers within the meaning of Sections 3(d) and 3(g) of the Act,
29 U.S.C. §§ 203(d) and 203(g).
B. At all times hereinafter mentioned, defendants
employed employees that have been and are engaged in commerce or in
the production of goods for commerce, within the meaning of
Sections 3(b) and (j), respectively, of the Act, 29 U.S.C.
§§ 203(b) and (j).
IV
At all times hereinafter mentioned:
A. Defendants, having been engaged in related
activities performed either through unified operation or common
control for a common business purpose, constitute an enterprise
within the meaning of Section 3(r)(1) of the Act, 29 U.S.C.
§ 203(r)(1).
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B. Such enterprise, employing employees engaged in
commerce or in the production of goods for commerce, or employees
handling, selling or otherwise working on goods or materials that
have been moved in or produced for commerce.
C. Such enterprise operates as a business engaged in
the training of racehorses at locations in Kentucky, New York, and
Texas, if not other states, and therefore constitutes an enterprise
engaged in commerce or in the production of goods for commerce
within the meaning of Section 3(s)(1)(A) of the Act, 29 U.S.C.
§ 203(s)(1)(A).
D. Therefore, during the period at issue the said
employees were employed in an enterprise engaged in commerce, or in
the production of goods for commerce, within the meaning of
Sections 3(r)(1) and/or 3(s)(1) of the Act, and the employees and
the enterprise were subject to Sections 6, 7, and 11(c) of the Act,
29 U.S.C. §§ 206, 207 and 211(c).
V
Since at least June of 2012, the defendants have
willfully and repeatedly violated the provisions of Sections 7 and
15(a)(2) of the Act, 29 U.S.C. §§ 207 and 215(a)(2), by employing
employees who have been engaged in commerce, or in the production
of goods for commerce, for workweeks longer than 40 hours without
compensating such employees for their employment in excess of such
hours at rates not less than one and one-half times the regular
rates at which they were employed. The employees at issue were and
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are employed by defendants at Churchill Downs, within the
jurisdiction of this Court, as hot walkers and/or grooms. Further,
at least two individuals employed by defendants at Churchill Downs
were and are erroneously treated as exempt employees under Part 541
of the Regulations.
VI
Since at least June of 2012, the defendants, subject to
the provisions of the Act, have willfully and repeatedly violated
the provisions of Sections 11(c) and 15(a)(5) of the Act, 29 U.S.C.
§§ 211(c) and 215(a)(5), and the Regulations found at 29 C.F.R.
§ 516 by failing to make, keep and preserve adequate and accurate
records of the persons employed and of the wages, hours and other
conditions and practices of employment maintained by the
enterprise, as prescribed in the aforesaid Regulations. For
example, the defendants failed to maintain and preserve adequate
accurate, and/or complete records during the entire time period
prescribed by the Regulations of the hours actually worked, pay
received, including amounts attributed to overtime, and the true
regular rate of pay, of employees working as hot walkers and/or
grooms. As an additional example, defendants failed to maintain
records of hours worked during the entire period prescribed by the
Regulations for the two individuals erroneously treated as exempt
employees under Part 541 of the Regulations.
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VII
WHEREFORE, cause having been shown, plaintiff prays
for Judgment:
1. Permanently enjoining defendants, their agents,
servants, employees and all persons in active concert or
participation with them, from violating the provisions of
Sections 6, 7, 11(c), 15(a)(2) and 15(a)(5) of the Act, 29 U.S.C.
§§ 206, 207, 211(c), 215(a)(2), and 215(a)(5), in accordance with
Section 17 of the Act, 29 U.S.C. § 217, for activities occurring
within the jurisdiction of this Court.
2. Restraining the withholding of payment of wages
found by the Court to be due employees under the Act (as named in
“Exhibit B” attached hereto and made a part hereof and such other
employees as hereafter may be identified and named prior to or at
trial), for a period of three years prior to the filing date of
this complaint, in accordance with Section 17 of the Act, 29 U.S.C.
§ 217.
3. Awarding back wages for a period of three years
prior to the filing date of this complaint, and an additional equal
amount as liquidated damages to employees (as named in “Exhibit B”
attached hereto and made a part hereof and such other employees as
hereafter may be identified and named prior to or at trial) in
accordance with Section 16(c) of the Act, 29 U.S.C. § 216(c).
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4. For such other and further relief as may be
necessary and appropriate including interest on such back wages at
the underpayment rate established by the Secretary of the Treasury,
pursuant to 26 U.S.C. § 6621, from the date they became due until
paid, and costs of this action.
5. For any and all other remedies which may be
available and within the equity powers of this Court, so that the
defendants fully comply with the Act during any and all of their
business activities conducted within the jurisdiction of this Court
at any time now or in the future.
Respectfully submitted,
M. PATRICIA SMITHSolicitor of Labor
STANLEY E. KEENRegional Solicitor
POST OFFICE ADDRESS: THERESA BALLAssociate Regional Solicitor
Office of the SolicitorU. S. Department of Labor618 Church Street /s/ Neil A. Morholt __Suite 230 NEIL A. MORHOLTNashville, Tennessee 37219-2440 Attorney
Telephone: (615) 781-5330 /s/ Thomas J. MotznyFax No. (615) 781-5321 THOMAS J. MOTZNYE-mail: [email protected] Attorney
[email protected]@dol.gov U. S. Department of Labor
Attorneys for the Secretary
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Exhibit A
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EXHIBIT B
Last Name First Name Aguilar Aura Alfonso Jose A Alvarado Efrain Alvarez Melvin Ambeliz Gloria Aragon Bertario Aragote-Martinez
Fransico
Arano Gisela Bahena Alberto Bahena Joel Baltazar Jerardo Barrientos Donald Barrientos Edwin Billalovos Jose Bizmaier Russell Cano Auner Cano Clementino Carmona Roberto Ceja Hector Cisneros Victor Diaz Daisy Espinoza Javier Figueroa Maria Godoy Jose Gomez Hector Gonzalez Carlos Gonzalez Cesilio Gonzalez Hugo Gonzalez Martha Gonzalez Oraldo Gonzalez Sergio Gutierrez Adolfo Gutierrez Amador Gutierrez Elizabeth Gutierrez Idelberto Gutierrez Jose Gutierrez Julio Gutierrez Maximo Gutierrez Victor J. Hernandez Carlos Hernandez Eduardo
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EXHIBIT B
Hernandez Elmer Hernandez Mario Hernandez Miguel Hernandez Ruben Herrera Rony Ignacio Gilberto Lopez Fidel Lopez Jose Lopez Marvin Lozano Raimon Martinez Elias Mejia Socimo Morales Eveli Morales Gerardo Morales Hugo Morales Jose Moreno Ishmael Moreno Marcos Munoz Adolfo Munoz Leonel Ordaz Felipe Ortiz Luis Ortiz Ricardo Oscal Marina Osorio Abishmael Osorio Bartolo Osorio Darmin Osorio Luis Osorio Rene Par Alberto Parra Saul Payeras Yoni Perez Christian Perez Elizandro Pineda Esdras Quevado Leidy Radosevich Jamie Ramirez Filiberto Ramirez Luis Rodriguez Juan Rodriguez Marcos Ruiz Roberto Salazar Mario
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EXHIBIT B
Saldivar Annalleli Salva Jose Sanchez Cira Sanchez Osmar Sanchez Sandra Torrez Ricardo Trejo Ismael Uscanga Aurelio Uscanga Julio Uscanga Lazaro Uscanga Ricardo Usganga Bartolo Valle Angel Vargas Roberto Werner Rowdy Williams Azelius
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