Case 5:15-cv-00441-MAD-TWD Document 1 Filed 04/13/15 Page 1 of 22

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

Case No.

JUAN RAMON MARROQUIN ALAS,

MARINA BALTAZAR, CLARA ESTELA
FUENTES LUX, VICTOR MARROQUIN,
MIGUEL PEREZ ORTIZ, on behalf of
themselves and others similarly situated,

5:15-cv-441 (MAD/TWD)

CLASS ACTION COMPLAINT

Plaintiffs,
v.
CHAMPLAIN VALLEY SPECIALTY OF NEW
YORK, INC., JEREMY DYGERT, RUTHANNE
DYGERT, CHRISTOPHER COTY, RACHEL
DYGERT COTY, and GERALD DYGERT,
Defendants.

Plaintiffs JUAN RAMON MARROQUIN ALAS, MARINA BALTAZAR, CLARA

ESTELA FUENTES LUX, VICTOR MARROQUIN, MIGUEL PEREZ ORTIZ, on behalf of
themselves and others similarly situated (Plaintiffs), allege as follows:
NATURE OF THE CLAIMS
1.

Plaintiffs bring this action, on behalf of themselves and on behalf of all other

similarly situated persons, to recover (a) overtime and minimum wages which Defendants failed
to pay in violation of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. 201 et seq., and (b)
overtime and minimum wages which Defendants failed to pay in violation of the New York
Labor Law ("NYLL"), 650 et seq..
2.

Plaintiffs claims under the FLSA are brought as a collective action, pursuant to

29 U.S.C. 216(b), on behalf of themselves and on behalf of all other similarly-situated persons
who were/are employed by Defendants as hourly food processing employees at Defendants

485335.docx (0970-0001)

Case 5:15-cv-00441-MAD-TWD Document 1 Filed 04/13/15 Page 2 of 22

apple-slice processing facility in Oswego, New York, and/or in similar positions who were/are
not paid the prevailing minimum wage for all hours worked, including at the overtime rate of one
and one-half times their regular rate of pay for all unpaid hours worked in excess of 40 hours per
workweek (overtime hours), for the period of April 14, 2012 to the final disposition of this
action (the FLSA Period). Plaintiffs, and the similarly-situated person they seek to represent,
are herein referred to as the FLSA Class.
3.

The FLSA Class are similarly situated because they were and are subjected to the

same terms and conditions of employment by Defendants, to Defendants common policy and/or
practice of failing to pay the prevailing minimum wage for all hours worked including overtime
hours at a rate of one and one-half times their regular rate during the FLSA Period.
4.

Plaintiffs claims under the NYLL are brought as a class action pursuant to Federal

Rule of Civil Procedure Rule ("FRCP") 23, on behalf of themselves and on behalf of all other
similarly-situated persons who were/are employed by Defendants as hourly food processing
employees at their Oswego, New York, apple-slice processing facility, and/or in similar
positions, who were/are not paid the prevailing minimum wage for all hours worked including at
the overtime rate of one-and one-half times their regular rate of pay for overtime hours for the
period of March 31, 2009 to the date of the final disposition of this action (the "NYLL Period").
Plaintiffs and all other such similarly-situated persons are jointly referred to herein as the NYLL
Class.
5.

The NYLL Class are similarly situated because they were/are all subjected to the

same terms and conditions of employment by Defendants, and to Defendants common policy
and/or practice of failing to pay them for all hours worked and failing to pay one-and-one-half
times their regular rate of pay for overtime hours.

485335.docx (0970-0001)

Case 5:15-cv-00441-MAD-TWD Document 1 Filed 04/13/15 Page 3 of 22

JURISDICTION AND VENUE

6.

Pursuant to 28 U.S.C. 1331 and 1343, the Court has subject matter jurisdiction

over this action because this action involves federal questions regarding Plaintiffs entitlement to
payment of the minimum wage for all hours worked and for overtime pay for all hours worked
exceeding 40 in a workweek pursuant to federal law, the FLSA. Pursuant to 28 U.S.C. 1367(a),
the Court has supplemental jurisdiction over Plaintiffs related claims under the NYLL.
7.

Pursuant to 28 U.S.C. 1391(a), venue is proper in this district because the events

or omissions giving rise to this action occurred in the Northern District of New York, specifically
Oswego County, NY, the location of Defendants place of business and Plaintiffs place of
employment by Defendants.
8.

Plaintiffs claims are properly consolidated as a single action because their claims

involve the same defendants, arise from the same nexus of facts and circumstances, during the
same period, and involve identical issues of fact and law.
THE PARTIES
The Plaintiffs
9.

Plaintiffs are current and former employees of Defendants, who were employed as

hourly production and processing employees at Defendants apple-slice processing facility in

Oswego County, New York.
10.

Each Plaintiff was employed by Defendants during the NYLL and FLSA Periods.

The Defendants
11.

Defendant Champlain Valley Specialty of New York, Inc., (Champlain) is a

subchapter-S corporation incorporated under the laws of the State of New York. Champlain
was/is an employer of record of Plaintiffs and the FLSA and NYLL Classes they seek to
represent. Champlain is an employer within the meaning of section 203(d) of the FLSA. As a

485335.docx (0970-0001)

Case 5:15-cv-00441-MAD-TWD Document 1 Filed 04/13/15 Page 4 of 22

Sub-S corporation its annual proceeds pass through to its owners, the individual defendants
described and named herein. Champlain is engaged in interstate commerce.
12.

Defendants Jeremy Dygert, Ruthanne Dygert, Christopher Coty, Gerald Dygert

and Rachael Dygert Coty (Individual Defendants) are the owners, officers and managers of
Champlain, have control over Champlain and its apple-processing facility, are personally
involved in directing Champlain, its business, operations and practices, including employment
practices, policies and procedures, as alleged in more detail below.
13.

Upon information and belief, the Individual Defendants, together, own all

outstanding shares of Champlain, and constitute Champlains officers.

14.

Upon information and belief, the Individual Defendants comprise the officers and

managers of Defendant Champlain as follows: Christopher Coty, Operations Manager;

Ruthanne Dygert, President and Trucking Manager; Rachel Dygert Coty, Secretary; Jeremy
Dygert, President; Gerald Dygert, Chairman of the Board.
15.

The Individual Defendants are employers with respect to plaintiffs and the

Classes they seek to represent, within the meaning of the FLSA and the NYLL.
16.

Together, Champlain and the Individual Defendants are herein referred to as

Defendants.
NOTICE PURSUANT TO NEW YORK CORPORATIONS CODE SECTION 630
17.

Upon information and belief, the Individual Defendants comprise the ten largest

shareholders of Champlain.
18.

No shares of Champlain are listed on any publicly-traded exchange.

19.

Accordingly, the Individual Defendants are jointly and severally personally liable

for all debts, wages or salaries due and owing to any of Plaintiffs or the class they seek to
represent pursuant to procedures set forth in Corporations Code section 630.

485335.docx (0970-0001)

Case 5:15-cv-00441-MAD-TWD Document 1 Filed 04/13/15 Page 5 of 22

20.

By mailing and/or service of this Complaint, Plaintiffs hereby give notice to the

Individual Defendants that they, and the Classes they seek to represent with respect to persons
currently employed by Champlain or any class members terminated within 180 days of the
service and/or mailing of this Complaint, intend to hold each Individual Defendant jointly and
severally liable for any eventual judgment against Champlain that is returned unexecuted, in
whole or in part, by Champlain.
FACTUAL ALLEGATIONS
Defendants Business and Operations
21.

Defendants operate an apple-slice processing facility located at 8011-8033 State

Route 104, Town of Oswego, County of Oswego, New York (the Facility).
22.

Upon information and belief, the Facility receives raw apples from within and

without the state of New York and processes them into snack-sized bags, of cleaned apple slices
under the brand GrabApples. The final GrabApples products are sold to wholesalers, retailers
and, most significantly, to public school districts and institutions under New Yorks farm-toschool program, as well as in the state of Virginia under similar contracts.
23.

Upon information and belief, the Facility opened in or around 2012.

24.

Defendants business has benefitted from incentives and assistance provided by,

among others, the Empire State Development Fund, the Oswego County Industrial Development
Agency and the State University of New Yorks Small Business Development Center.
25.

The processing of ready-to-eat fresh sliced apples is a complex and labor-

intensive process, requiring sorting and grading incoming raw product, washing, coring and
cutting, application of disinfecting and preserving washes, bagging, sealing, packaging and
quality control, all within a strict cold-chain management environment and fast-paced schedule
required for the marketing and sale of a highly-perishable product.

485335.docx (0970-0001)

Case 5:15-cv-00441-MAD-TWD Document 1 Filed 04/13/15 Page 6 of 22

26.

In order to accomplish its sliced-apple processing operations and business, the

Defendants employ or employed Plaintiffs and the Classes they seek to represent on an hourly
basis, at the Facility.
27.

The Individual Defendants set the wage rates to be paid Plaintiffs and the

members of the putative Classes.

28.

The Individual defendants also direct and manage the Facilitys processing

operations, obtain orders for product, arrange for completion and shipping of orders, establish
labor costs, authorize or disapprove overtime costs, process Plaintiffs and the Classes payroll,
make decisions regarding hiring and firing of supervisors and management. The Individual
Defendants employ and personally direct managers and supervisors to effect these
aforementioned functions as well as to implement their directions and business decisions and
otherwise manage and direct the workforce in accordance with direction. The Individual
Defendants establish the Facilitys personnel practices and policies, and otherwise personally
manage the Champlains operations and affairs.
29.

In addition to their direct involvement in the operation of Champlain, the

Individual Defendants routinely review Champlains financial reports, costs, expenses, including
labor costs, and make adjustments with respect to Champlains business and operations.
30.

Each of the Individual Defendants control Plaintiffs and the Classes work

conditions, and have delegated discretion, subject to their authorization and review, over, inter
alia, matters involving work schedules, the rates and methods of payment of Plaintiffs and the
Classes wages, and the maintenance of their employment records.
31.

Each of the Individual Defendants obtain, process or authorize orders for

GrabApples product, purchasing of raw apples, and direct the processing of such apples to fulfill
the orders commissioned.

485335.docx (0970-0001)

Case 5:15-cv-00441-MAD-TWD Document 1 Filed 04/13/15 Page 7 of 22

32.

Each of the Individual Defendants have decision-making authority over the terms

and conditions of Plaintiffs and the Classes work.

33.

The Individual Defendants consult and confer with each other regarding decisions

related to Champlains business and operations, and take action and make decisions collectively,
including decisions related to the terms and conditions of Plaintiffs and the Classes
employment.
34.

Upon information and belief, the Individual Defendants maintain an office and

staff at the Facility through which they direct the Operations of the Facility and the work of
Plaintiffs and the Class they seek to represent.
35.

Each of the Individual Defendants work and/or are regularly present at the

Facility, and receive compensation from Champlain for their active oversight and management
of its business.
36.

The Individual Defendants comprise the ownership of Defendant Champlain and,

ultimately, the Facility and equipment utilized in its apple-processing operations.

37.

Upon information and belief, one or more of the Individual Defendants own

equipment utilized by Champlain.

38.

Defendants do not grow apples, but purchase them from third-parties. In addition,

defendants are not farmers nor is the Facility located on a farm owned by Defendants, as those
terms are understood and applied under the FLSA and its regulations.
Defendants Employment Practices & Failure to Pay Plaintiffs Their Earned Wages
39.

Defendants assign their hourly work force to two shifts, morning and evening (or

swing shift), and employ a maintenance and cleaning crew for the night (graveyard) shift.
40.

The Facilitys processing/production employees are assigned to work five shifts

per workweek. Such assignments are made in advance on an alternating basis (as the Company

485335.docx (0970-0001)

Case 5:15-cv-00441-MAD-TWD Document 1 Filed 04/13/15 Page 8 of 22

operates at least six days per week).

41.

The Facilitys morning shift of processing/production employees are directed to

and required to report to work at 7:30 a.m. on each day of their assigned workweek.
42.

Employees who do not arrive by 7:30 a.m. on their designated shift are deemed

late and subject to discipline or termination.

43.

The Defendants maintain an electronic system for recording each employees

work time, consisting of an electronic, computerized pad located within the Facility and a
corresponding electronic card provided to each employee for swiping the computerized pad as
directed by Defendants.
44.

By service of this Complaint Defendants are directed to preserve and maintain in

its original electronic format, all electronic data associated with the plaintiffs and Classes work
hours during the NYLL and FLSA Periods, including any alterations to hours and data.
45.

Although Plaintiffs and the Class members assigned to morning shifts are

required to report to work at 7:30 a.m., the Defendants do not permit them to swipe or clock in
until the facility is ready to begin processing. Nor are Plaintiffs or the Class members permitted
to leave during the period between their reporting and starting time, nor are they dismissed until
called back.
46.

Consequently, Defendants require Plaintiffs and the Class members to wait,

without pay, until directed to swipe in.

47.

Such waiting time described in the preceding paragraphs may last as long as

two hours, time for which Plaintiffs and the Putative Classes are owed wages.
48.

This practice also occurs with the evening production/processing shift.

49.

Such waiting time is compensable time pursuant to the FLSA and NYLL as

Plaintiffs and the class they seek to represent are engaged to wait, and are not waiting to be

485335.docx (0970-0001)

Case 5:15-cv-00441-MAD-TWD Document 1 Filed 04/13/15 Page 9 of 22

engaged, by Defendants.
50.

Such uncompensated waiting time has been a common occurrence during the

FLSA and NYLL Periods.

51.

Plaintiffs, and the Classes they seek to represent are regularly scheduled to work

nine-hour shifts. Thus, the first shift is regularly scheduled for 7:30 a.m. to 4:30 p.m. each
workday.
52.

The NYLL, section 162, requires factory workers -- which includes Plaintiffs

and the Class they seek to represent -- to be provided a one-hour unpaid lunch break.
53.

Upon information and belief, Defendants have adopted a shift schedule that in

principle could accommodate a one-hour lunch break, e.g. a nine-hour total work day.
54.

However, Defendants permit Plaintiffs and the Classes members only a one-half-

hour unpaid lunch period.

55.

As a rule, Defendants direct, and suffer and permit Plaintiffs to work throughout

their shift excepting a single one-half hour lunch break which Plaintiffs are not always afforded
by Defendants.
56.

Regardless of the actual time taken for lunch, Defendants deduct one-hour from

their total daily work time.

57.

As a result of this practice, Plaintiffs and the Classes they represent routinely

work at least an additional 2.5 overtime hours during the workweek for which they receive no
compensation.
58.

Although Plaintiffs and the Classes they seek to represent are regularly scheduled

to work a shift of 9-hours duration, on most days they are required to work beyond the scheduled
end of their shift, often by several hours. Although Plaintiffs and the Class they represent are
frequently required to work such additional overtime hours, they are not paid for all such hours.

485335.docx (0970-0001)

Case 5:15-cv-00441-MAD-TWD Document 1 Filed 04/13/15 Page 10 of 22

59.

Defendants have therefore engaged in a practice known as shaving time from

Plaintiffs and the putative class payroll records, which entails modifying the electronically
recorded clock in/out data when preparing and processing Plaintiffs and the Classes payroll.
60.

Upon information and belief, the Individual Defendants have authorized, required

or have failed to prevent this practice of shaving time from employee payroll records.
61.

As a result of Defendants illegal shaving of compensable overtime, defendants

have failed to pay Plaintiffs and the putative Classes for all hours worked at the appropriate
overtime rate of one-and-one-half times the regular rate of pay.
FLSA COLLECTIVE ACTION ALLEGATIONS
62.

Plaintiffs bring their FLSA claims as a collective action pursuant to the FLSA

on behalf of themselves and on behalf of all other similarly-situated persons who were/are
employed as hourly food processing workers by Defendants at their Oswego, New York appleslice processing facility, and who were/are not paid the prevailing minimum wage for all hours
worked including overtime hours at a rate of one and one-half times their regular rate of pay.
63.

The basic job duties of the FLSA Class were/are the same as or substantially

similar to those of Plaintiffs, and the FLSA Class were/are paid in the same manner and under
the same terms and conditions, common policies, plans and practices as Plaintiffs.
64.

The FLSA Class, like Plaintiffs, all have been subject to the same unlawful

policies, plans and practices of Defendants, including failing to pay the prevailing minimum
wage for all hours worked and overtime at a rate of one and one-half times their regular rate of
pay for all hours worked in excess of 40 hours per workweek.
65.

During the FLSA Period, Defendants were aware of their obligations under the

FLSA and knowingly engaged in the allegations set forth herein regarding Defendants
violations of the FLSA.

10

485335.docx (0970-0001)

Case 5:15-cv-00441-MAD-TWD Document 1 Filed 04/13/15 Page 11 of 22

66.

As a result of Defendants' conduct as alleged herein, Defendants violated 29

U.S.C. 206 by failing to pay to the FLSA Class and Plaintiffs the prevailing minimum wage
for all hours worked for Defendants.
67.

As a result of Defendants conduct as alleged herein, including the unlawful

waiting time and shaving and lunch-break practices, Defendants violated 29 U.S.C.
207 by failing to pay the FLSA Class and Plaintiffs pay at the overtime rate for all overtime
hours worked.
68.

Defendants violations of the FLSA were willful, repeated, knowing,

intentional and without a good faith basis, and significantly damaged Plaintiffs and the FLSA
Class.
69.

As a result of Defendants conduct, Defendants are liable to Plaintiffs and the

FLSA Class for the full amount of their unpaid minimum wage and overtime, plus an
additional equal amount as liquidated damages, plus the attorneys fees and costs incurred by
Plaintiffs and the FLSA Class in pursuing this action.
70.

While the exact number of the FLSA Class is unknown to Plaintiffs at the

present time, upon information and belief the number likely exceeds 200 other similarlysituated persons who were/are employed on an hourly basis at Defendants Oswego, New York
apple-processing facility during the FLSA Period.
71.

Plaintiffs are currently unaware of the identities of the FLSA Class.

Accordingly, Defendants should be required to provide Plaintiffs with a list of all persons
employed by Defendants as hourly employees at the Facility during the FLSA Period, along
with their last known addresses, telephone numbers and e-mail addresses so Plaintiffs and their
counsel may provide the FLSA Class notice of this action and an opportunity to make an
informed decision about whether to participate in this FLSA Collective Action.

11

485335.docx (0970-0001)

Case 5:15-cv-00441-MAD-TWD Document 1 Filed 04/13/15 Page 12 of 22

RULE 23 CLASS ACTION ALLEGATIONS

72.

Plaintiffs bring their NYLL claims as a class action pursuant to Federal Rule of

Civil Procedure 23 on behalf of themselves and on behalf of all other similarly-situated

persons who were/are employed by Defendants as hourly food processing employees at their
Oswego, New York, apple-slice processing facility, and/or in similar positions, and who
were/are not paid at their regular rate of pay for all hours worked, nor at the overtime rate of
one and one-half times their regular rate for all overtime hours worked.
73.

The basic job duties of the NYLL Class were/are the same as or substantially

similar to those of Plaintiffs, and the NYLL Class were/are paid in the same manner and worked
under the same terms and conditions of employment, and under common policies, plans and
practices as Plaintiffs.
74.

The NYLL Class, like Plaintiffs, all have been subject to the same unlawful

policies, plans and practices of Defendants, including waiting time violations, and illegal
shaving and lunch-break practices, and thereby failing to pay them for all hours worked
including overtime hours at the rate of one and one-half times their regular rate of pay.
75.

During the NYLL Period, Defendants were fully aware of the duties performed by

Plaintiffs and the NYLL Class, and with respect to the allegations set forth below, knowingly
failed to pay Plaintiffs and the NYLL in accordance with the applicable provisions of the NYLL
and its regulations.
76.

As a result of Defendants conduct as alleged herein, Defendants violated the

NYLL and/or its regulations by failing to pay the NYLL Class and Plaintiffs for all hours
worked, including overtime time hours at a rate of one and one-half times their regular rate of
pay.

12

485335.docx (0970-0001)

Case 5:15-cv-00441-MAD-TWD Document 1 Filed 04/13/15 Page 13 of 22

77.

Defendants violations of the NYLL and/or its regulations were willful, repeated,

knowing, intentional and without a good faith basis, and significantly damaged Plaintiffs and the
NYLL Class.
78.

As a result of Defendants conduct, Defendants are liable to Plaintiffs and the

NYLL Class for the full amount of wages for all hours worked and overtime wages, plus an
additional amount as liquidated damages, plus the attorneys' fees and costs incurred by Plaintiffs
and the NYLL Class.
79.

Certification of the NYLL Class claims as a class action is the most efficient and

economical means of resolving the questions of law and fact common to Plaintiffs claims and
the claims of the NYLL Class.
80.

Plaintiffs have standing to seek relief as the NYLL Class representatives

because the damages they have suffered from Defendants' unlawful compensation policies and
practices are typical and common to the NYLL Class. Further, the class is sufficiently
numerous, likely exceeding 200 members, such that, without class certification, the same
evidence and issues would be subject to re-litigation in a multitude of individual lawsuits with
an attendant risk of inconsistent adjudications, conflicting obligations and exhaustion of
judicial resources. Certification of the NYLL Class is the most efficient and judicious means
of presenting the evidence and arguments necessary to resolve such questions for Plaintiffs,
the NYLL Class and Defendants.
81.

Plaintiffs claims raise questions of law and fact common to the NYLL Class.

Among these questions are, inter alia:

(a)

Whether Defendants failed to pay Plaintiffs and the NYLL Class for all
hours worked during the NYLL Period;

(b)

Whether Defendants failed to pay Plaintiffs and the NYLL Class

overtime at a rate of one and one-half times their regular rate of pay for
all hours worked in excess of 40 hours per workweek during the NYLL

13

485335.docx (0970-0001)

Case 5:15-cv-00441-MAD-TWD Document 1 Filed 04/13/15 Page 14 of 22

Class Period;

82.

(c)

Whether Defendants failure to pay overtime to Plaintiffs and the NYLL

Class constitutes a violation of NYLL 650 et seq. and 12 N.Y.C.R.R.
142.2-2;

(d)

Whether Defendants failure to pay Plaintiffs and the NYLL Class their
wages earned in accordance with their agreed terms of employment
constitutes a violation of NYLL 191;

(e)

Whether Defendants' violations of the NYLL and/or its regulations were

willful;

(f)

The adjudication of any affirmative defenses, should any be asserted.

These common questions of law and fact arise from the same course of events,

transactions, time periods, and practices, and each class member will make similar legal and
factual arguments to prove liability.
83.

Plaintiffs are members of the NYLL Class that they seek to represent. Plaintiffs

claims are typical of the claims of the NYLL Class. The relief Plaintiffs seek for the unlawful
policies and practices complained of herein are also typical of the relief which is sought on
behalf of the NYLL Class.
84.

Plaintiffs interests are co-extensive with those of the NYLL Class that they

seek to represent in this case. Plaintiffs are willing and able to represent the NYLL Class
fairly and to vigorously pursue their similar individual claims in this action. Plaintiffs have
retained counsel qualified and experienced in employment class action litigation, and who are
able to meet the time and fiscal demands necessary to litigate a class action of this size and
complexity.
85.

Plaintiffs counsel has been designated Class Counsel and Class Co-Counsel in

numerous employment class actions. The combined interests, experience and resources of
Plaintiffs and their counsel to litigate the individual and NYLL Class claims at issue in this
case satisfy the adequacy of representation requirement of Fed. R. Civ. P. 23(a)(4).

14

485335.docx (0970-0001)

Case 5:15-cv-00441-MAD-TWD Document 1 Filed 04/13/15 Page 15 of 22

86.

Defendants have acted or refused to act on grounds generally applicable to the

NYLL Class, making final injunctive and declaratory relief appropriate with respect to the
NYLL Class as a whole.
87.

The common issues of fact and law affecting Plaintiffs' claims and those of the

NYLL Class members, including the common issues identified above, predominate over any
issues affecting only individual claims.
88.

A class action is superior to other available means for the fair and efficient

adjudication of Plaintiffs' claims and the claims of the NYLL Class. There will be no difficulty
in the management of this action as a class action.
89.

The cost of proving Defendants' violations of the NYLL and the supporting

New York State Department of Labor regulations makes it impracticable for Plaintiffs and
the NYLL Class to pursue their claims individually. Maintenance of a class action promotes
judicial economy by consolidating a large class of plaintiffs litigating identical claims. The
claims of the NYLL Class interrelate such that the interests of the members will be fairly and
adequately protected in their absence. Additionally, the questions of law and fact common to
the NYLL Class arise from the same course of events and each class member makes similar
legal and factual arguments to prove the Defendants liability.
90.

The NYLL Class is so numerous that joinder of all members is impracticable.

While the exact number of the NYLL Class is unknown to Plaintiffs at the present time, it
likely exceeds 200 other similarly-situated persons who were/are employed by Defendants as
hourly employees at their apple-processing facility in Oswego, New York.
91.

Plaintiff is currently unaware of the identities of the NYLL Class. Accordingly,

Defendants should be required to provide Plaintiffs with a list of all persons employed by
Defendants at their apple-processing facility in Oswego, New York during the NYLL Period,

15

485335.docx (0970-0001)

Case 5:15-cv-00441-MAD-TWD Document 1 Filed 04/13/15 Page 16 of 22

along with their last known addresses, telephone numbers and e-mail addresses so Plaintiffs can
provide to the NYLL Class notice of this action and an opportunity to make an informed decision
about whether to participate in it.
FIRST CAUSE OF ACTION
All Defendants
(Failure to Pay Overtime in Violation of 29 U.S.C. 207)
92.

Plaintiffs, on behalf of themselves and the FLSA Class, hereby reallege and

incorporate by reference the preceding paragraphs as though set forth herein.

93.

The FLSA requires covered employers, such as Defendants, to pay all non-

exempt employees at a rate not less than one and one-half times their regular rate of pay for all
hours worked in excess of 40 hours per workweek.
94.

Plaintiffs and the FLSA Class were not exempt from the requirement that

Defendants pay them overtime under the FLSA.

95.

During the FLSA Period, Defendants knew that Plaintiffs and the FLSA class

worked at least 42.5 hours per week but typically worked more. However, Defendants did not
pay Plaintiffs for all the hours they worked in excess of 40 hours per workweek nor pay
Plaintiffs the overtime rate for such hours.
96.

Defendants also permitted or directed their staff to shave time from Plaintiffs

and the Classs time records, and thereby failed to pay them for all hours worked including
overtime hours.
97.

As a result of Defendants failure to pay Plaintiffs and the FLSA Class for all

hours worked, including overtime hours at the overtime rate, Defendants violated the FLSA.
98.

The foregoing conduct of Defendants constitutes willful violations of the

99.

Defendants are jointly and severally liable to Plaintiffs and the FLSA Class for

FLSA.

16

485335.docx (0970-0001)

Case 5:15-cv-00441-MAD-TWD Document 1 Filed 04/13/15 Page 17 of 22

all unpaid wages, including overtime wages.

100.

Defendants violations of the FLSA have significantly damaged Plaintiffs and the

FLSA Collective and entitle them to recover the total amount of their unpaid overtime wages, an
additional equal amount in liquidated damages, and reasonable attorneys fees and costs incurred
in the prosecution of this action.
SECOND CAUSE OF ACTION
All Defendants
(Failure to Pay Minimum Wage in Violation of 29 U.S.C. 206)
101.

Plaintiffs, on behalf of themselves and the FLSA Class, hereby reallege and

incorporate by reference the preceding paragraphs as though they were fully set forth herein.
102.

The FLSA requires covered employers, such as Defendants, to pay all non-

exempt employees the prevailing minimum wage for all hours worked.
103.

Plaintiffs and the FLSA Class were not exempt from the requirement that

Defendants pay them the prevailing minimum wage under the FLSA.
104.

During the FLSA Period, Defendants did not pay Plaintiffs and the FLSA Class

for all hours Defendants directed, engaged, suffered or permitted Plaintiffs to work for them.
105.

As a result of Defendants failure to pay Plaintiffs and the FLSA Class the

prevailing minimum wage for all hours worked, Defendants violated the FLSA.
106.

Defendants conduct in this regard was willful and knowing, and constitutes

willful violations of the FLSA.

107.

Defendants are jointly and severally liable to Plaintiffs and the FLSA Class

for all unpaid wages.

108.

Defendants violations of the FLSA have significantly damaged Plaintiffs and

the FLSA Class and entitle them to recover the total amount of their unpaid minimum wage, an
additional equal amount in liquidated damages, and reasonable attorneys fees and costs

17

485335.docx (0970-0001)

Case 5:15-cv-00441-MAD-TWD Document 1 Filed 04/13/15 Page 18 of 22

incurred in prosecuting this action.

THIRD CAUSE OF ACTION
All Defendants
(Failure to Pay Overtime in Violation of NYLL 650, 652)
109.

Plaintiffs, on behalf of themselves and the NYLL Class, hereby reallege and

incorporate by reference the preceding paragraphs as though fully set forth herein.
110.

The NYLL, and 12 N.Y.C.R.R. 142-2.2 require a covered employer, such as

Defendants, to pay employees overtime at a rate of one and one-half times the employees
regular rate of pay for all overtime hours worked. Plaintiffs and the NYLL Class were not
exempt from the requirement that Defendants pay them overtime under the NYLL and/or its
regulations.
111.

During the NYLL Period, Defendants knew that Plaintiffs and the NYLL

Class worked at least 42.5 hours per week, but often many more hours per workweek.
However, Defendants intentionally did not pay them for all such hour worked nor pay them
when such hour exceeded forty in a workweek.
112.

As a result of Defendants failure to pay Plaintiffs and the NYLL Class for all

hours worked, including overtime hours at a rate of one and one-half times their regular rate
of pay, Defendants violated the NYLL, and 12 N.Y.C.R.R. 142-2.2.
113.

The foregoing conduct of Defendants constitutes willful violations of the

NYLL and/or its regulations.

114.

Defendants' violations of the NYLL and/or its regulations have significantly

damaged Plaintiffs and the NYLL Class and entitle them to recover the total amount of their
unpaid overtime wages, an additional equal amount in liquidated damages, and reasonable
attorneys fees and costs incurred in prosecuting this action.

18

485335.docx (0970-0001)

Case 5:15-cv-00441-MAD-TWD Document 1 Filed 04/13/15 Page 19 of 22

FOURTH CAUSE OF ACTION

All Defendants
(Failure to Pay Wages in Violation of NYLL 650, 652, 663 et seq.)
115.

Plaintiffs, on behalf of themselves and the NYLL Class, hereby reallege and

incorporate by reference the preceding paragraphs as though they were fully set forth herein.
116.

The NYLL requires covered employers, such as Defendants, to pay all non-

exempt employees at least the minimum wage for all hours worked.
117.

Plaintiffs and the NYLL Class were not exempt from the requirement that

Defendants pay them for all hours worked.

118.

During the NYLL Period, Defendants did not pay Plaintiffs and the NYLL

Class for all hours Defendants authorized, directed, suffered or permitted them to work.
119.

As a result of Defendants failure to pay Plaintiffs and the NYLL Class the

minimum wage for all hours worked, Defendants violated the NYLL.
120.

The foregoing conduct of Defendants constitutes willful violations of the

121.

Defendants violations of the NYLL have significantly damaged Plaintiffs and

NYLL.

the NYLL Class and entitle them to recover the total amount of their unpaid wages, an
additional amount in liquidated damages, and reasonable attorneys fees and costs incurred in
prosecuting this action.
FIFTH CAUSE OF ACTION
All Defendants
(Penalties Failure to Provide Accurate Paystubs NYLL 198)
122.

Plaintiffs, on behalf of themselves and the NYLL Class, hereby reallege and

incorporate by reference the preceding paragraphs as though they were fully set forth herein.
123.

NYLL section 195(3) requires employers to furnish each employee with a

statement with every payment of wages, listing the following: the dates of work covered by

19

485335.docx (0970-0001)

Case 5:15-cv-00441-MAD-TWD Document 1 Filed 04/13/15 Page 20 of 22

that payment of wages; name of employee; name of employer; address and phone number of
employer; rate or rates of pay and basis thereof, whether paid by the hour, shift, day, week,
salary, piece, commission, or other; gross wages; deductions; allowances, if any, claimed as
part of the minimum wage; and net wages. For all employees who are not exempt from
overtime compensation as established in the commissioner's minimum wage orders or
otherwise provided by New York state law or regulation, the statement shall include the
regular hourly rate or rates of pay; the overtime rate or rates of pay; the number of regular
hours worked, and the number of overtime hours worked.
124.

During the NYLL class period Defendants furnished to Plaintiffs and the

members of the NYLL Class statements that did not accurately indicate the number of
regular or overtime hours worked and, accordingly, did not comply with section 195 of the
NYLL.
125.

Section 198(1-d) of the NYLL provides that If any employee is not provided

a statement or statements as required by subdivision three of section one hundred ninety-five

of this article, he or she shall recover in a civil action damages of two hundred fifty dollars
for each work day that the violations occurred or continue to occur, but not to exceed a total
of five thousand dollars, together with costs and reasonable attorney's fees.
126.

Plaintiffs and the NYLL Class are entitled to civil action damages in

accordance with NYLL section 198(1-d) for each non-compliant, inaccurate or fraudulent
wage statement they were provided by Defendants, to a maximum of $5,000 each.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs, on behalf of themselves, the FLSA Class and the NYLL
Class, respectfully requests that this Court:
A.

Declare that the practices complained of herein are unlawful under applicable

20

485335.docx (0970-0001)

Case 5:15-cv-00441-MAD-TWD Document 1 Filed 04/13/15 Page 21 of 22

federal and state law;

B.

Declare this action to be maintainable as a collective action pursuant to 29

U.S.C. 216, and direct Defendants to provide Plaintiffs with a list of all persons who
were/are employed by Defendants in New York as hourly employees at is Oswego, New
York apple-slice processing facility, and/or in similar positions during the FLSA Period,
including all last known addresses, telephone numbers and e-mail addresses of each such
person so Plaintiffs can give such persons notice of this action and an opportunity to make an
informed decision about whether to participate in it;
C.

Determine the damages sustained by Plaintiffs and the FLSA and NYLL

Classes as a result of Defendants' violations of the FLSA, and award those damages against
Defendants and in favor of Plaintiffs and the FLSA Class, plus such pre-judgment and postjudgment interest as may be allowed by law;
D.

Award Plaintiffs and the FLSA Class an additional equal amount as

liquidated damages because Defendants' violations were willful and/or without a good faith
basis;
E.

Declare this action to be maintainable as a class action pursuant to Fed. R. Civ. P.

23, and direct Defendants to provide Plaintiffs with a list of all persons who were/are employed
by Defendants in the state of New York as Drivers and/or in similar positions during the NYLL
Class Period, including all last known addresses, telephone numbers and e-mail addresses of
each such person so Plaintiffs can give such persons notice of this action and an opportunity to
make an informed decision about whether to participate in it;
F.

Designate Plaintiffs as representatives of their class, and their counsel of record as

class counsel;

21

485335.docx (0970-0001)

Case 5:15-cv-00441-MAD-TWD Document 1 Filed 04/13/15 Page 22 of 22

G.

Determine the damages sustained by Plaintiffs and the NYLL Class as a result of

Defendants violations of the NYLL and/or its regulations, and award those damages against
Defendants and in favor of the Plaintiffs and the NYLL Class, plus such pre-judgment and
post-judgment interest as allowed by law including, but not limited to section 663(4) of the
NYLL;
H.

Award Plaintiffs and the NYLL Class an additional amount as liquidated

damages pursuant to the NYLL because Defendants violations were willful and/or without a
good faith basis;
I.

Award Plaintiffs, the FLSA Class and the NYLL Class their reasonable attorneys

fees and costs and disbursements in this action including, but not limited to, any accountants or
experts fees; and
J.

Enjoin Defendants from engaging in any acts of illegal retaliation and to cease

from engaging in the illegal practices alleged herein;

K.

Grant Plaintiffs, the FLSA Class and the NYLL Class such other and further

relief that the Court deems just and proper.

Dated: April 13, 2015

By:

/s/ Teague P. Paterson

TEAGUE P. PATERSON, Bar No. 3054715
BEESON, TAYER & BODINE, APC
217 S. Salina Street, Suite 600
Syracuse, NY 13202
Telephone: (510) 625-9700 ext. 6323
Facsimile: (510) 625-8275
Email: tpaterson@beesontayer.com
Attorneys for Plaintiffs Juan Ramon Marroquin
Alas, Marina Baltazar, Clara Estela Fuentes Lux,
Victor Marroquin, Miguel Perez Ortiz, on behalf of
themselves and others similarly situated

22

485335.docx (0970-0001)