04/10/2002
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TENNESSEE
WINCHESTER DIVISION
BIRDA TROLLINGER, ROBERT MARTINEZ, TABETHA EDDINGS AND DORIS JEWELL, individually and on behalf of all others similarly situated,
Plaintiffs,
v.
TYSON FOODS, INC. a Corporation
Defendant.
COMPLAINT
1. This is a class action brought on behalf of all persons legally authorized to be employed in the United States ("U.S.") who have been employed by defendant Tyson Foods, Inc. (Tyson), reportedly the world’s largest processor and marketer of poultry, as hourly wage earners at 15 of its facilities throughout the U.S. during the last four years.
2. The Complaint contends that all such persons have been victimized by a scheme perpetrated by Tyson to depress the wages paid to its employees by knowingly hiring a workforce substantially comprised of undocumented illegal immigrants for the express purpose of depressing wages (hereafter "the Illegal Immigrant Hiring Scheme").
3. Tyson perpetrates the Illegal Immigrant Hiring Scheme through a complex and highly disciplined network of recruiters and temporary employment agencies, which obtain illegal immigrants, and perform additional services to facilitate their illegal employment by Tyson including transporting them to the U.S., obtaining housing in the U.S., and manufacturing and/or falsifying identification documents.
4. While the work at Tyson plants is grueling and extremely dangerous, the company avoids paying market wages to its employees as a result of the successful perpetration of the Illegal Immigrant Hiring Scheme.
5. The Illegal Immigrant Hiring Scheme violates the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et seq. (RICO) and has directly and proximately caused the wages paid to plaintiffs and the class members to be substantially depressed, i.e., below the level of wages paid by other employers of unskilled laborers in the areas surrounding the 15 Tyson facilities who participate in the Illegal Immigrant hiring Scheme.
6. Plaintiffs Trollinger, Martinez, Eddings and Jewell, U.S. citizens, were employed at one of the 15 Tyson facilities perpetrating the Illegal Immigrant Hiring Scheme. That facility is in Shelbyville, Tennessee.
7. Tyson is a corporation organized under the laws of the state of Delaware with its principal place of business in Arkansas. As alleged below, it has committed a pattern of racketeering activity in this district and is currently under indictment in this Court in case No. 4:01-CR-61, U.S. v. Tyson Foods, et al., for some of the illegal activities comprising the Illegal Immigrant Hiring Scheme ("the Indictment"). A copy of the Indictment is attached to and made a part of this Complaint.
8. This Court has subject matter jurisdiction over this case pursuant to 28 U.S.C. §1331 and 18 U.S.C. § 1964(a).
9. This action is brought and may be maintained as a class action pursuant to Fed. R. Civ. P. 23(b)(2) and (3). Plaintiffs bring this action on behalf of themselves and all other persons, legally authorized to be employed in the U.S., who have been employed by Tyson at the 15 Tyson facilities located in the communities enumerated at pages 42-43 of the Indictment ("the Class").
10. The Class for whose benefit this action is brought is so numerous that joinder of all Class members is impracticable. The actual number can only be ascertained through discovery of Tyson’s books and records.
11. Among the questions of fact and law that are common to the Class are:
12. Plaintiffs' claims are typical of those of the Class in that they arise from the damages they have suffered as a result of the Illegal Immigrant Hiring Scheme. Plaintiffs seek no relief that is antagonistic to or adverse to other Class members.
13. Plaintiffs are committed to the vigorous prosecution of this action, and have retained counsel who are competent in the prosecution of class actions, RICO and complex litigation. Plaintiffs will fairly and adequately protect and represent the interests of the Class.
14. Questions of law or fact common to the Class predominate over issues affecting individual Class members. A class action is the only appropriate method for the fair and efficient adjudication of this controversy for the following reasons, among others:
15. Plaintiffs anticipate no difficulty in the management of this action because the evidence proving the Illegal Immigrant Hiring Scheme is ascertainable through discovery, the identities of the Class members are known to Tyson, and damages can be calculated to a reasonable certainty through expert testimony.
16. For at least the last several years, Tyson, which claims to be the world’s largest processor and marketer of poultry and employs over 120,000 workers, has aggressively engaged in an effort to reduce labor costs by driving down employee wages. Its primary strategy for doing so is the knowing employment of undocumented, illegal immigrants for unskilled positions in its processing facilities.
17. Illegal immigrants, because of their impoverished economic state, their desperate need for employment and their illicit presence in this country, tend to work for wages significantly below what a labor market comprised of U.S. citizens would pay.
18. Illegal immigrants can also be exploited in other ways as well. Owing to their constant fear of apprehension by law enforcement authorities, Tyson’s illegal immigrant workers tolerate deplorable workplace conditions and do not file worker’s compensation claims when they are injured on the job.
19. Tyson is unable to attract large numbers of illegal immigrants to work for the company on its own. Consequently, it relies upon a large network of recruiters and temporary employment services to identify qualified candidates for low-wage unskilled labor, induce those candidates to work for the company and often provide assistance in transportation to one of its facilities, provide housing (frequently in homes owned and rented out by Tyson executives at over-market rates) and other amenities.
20. Tyson pays its recruiters and temporary employment services a fee for each illegal immigrant worker it hires.
21. In exchange for these benefits, recruiters must submit to a regimen of strict discipline set by Tyson. This regimen requires recruiters to carefully screen candidates so as employ only those with personality traits consistent with Tyson’s desired worker profile; typically, these are illegal immigrants who feel vulnerable, submissive, have little knowledge of the U.S. legal system and a pressing need for immediate employment.
22. Tyson instructs its recruiters and temporary employment services to coach illegal immigrant workers to: (i) deny, if asked, that they have been smuggled into the U.S.; and (ii) credibly present verification documents to Tyson which both the recruiters and Tyson know are falsified, all in an elaborate scheme to hide the illegal employment activity. Many such illegal immigrants are recruited in Mexico and have their passage into the U.S. paid for by Tyson’s recruiters. The recruiters then meet the illegal workers as soon as they are smuggled across the U.S-Mexico border and transport them to the 15 Tyson facilities, at Tyson’s expense.
23. The result is that Tyson receives a constant stream of illegal immigrants seeking immediate employment. These workers accept unskilled positions at a starting wage of approximately $9/hour, no questions asked.
24. Workers at other facilities in the areas where the 15 Tyson plants at issue are located typically receive significantly higher starting salaries.. The difference between this wage level and the wages paid by Tyson is the direct result of the success of the Illegal Immigrant Hiring Scheme.
25. Tyson employment personnel hire these illegal immigrants with a wink and a nod, knowing they are being presented with falsified identification documents in order to establish work eligibility (many having been falsified by Amador Anchondo-Rascon in Shelbyville, Tennessee) or having been recruited by carefully selected temporary employment services who hire only known illegal immigrants, at Tyson’s request.
26. Plaintiffs are not aware of the precise number of illegal immigrants Tyson employs at the 15 facilities, but on information and belief Plaintiffs allege that the number employed is over 250 per year at each facility, year in and year out, since the knowing employment of illegal immigrants became a RICO predicate offense in 1996. Plaintiffs believe approximately half of Tyson’s workers at the 15 facilities are illegal immigrants, and the vast majority were hired by Tyson with actual knowledge of their illegal status and further, with knowledge that they were smuggled into the U.S. and harbored in the U.S.
27. Additionally, the act of knowingly employing an illegal immigrant constitutes harboring that person, and each time Tyson knowingly hires an illegal immigrant and/or provides such person with housing, it harbors that person from detection.
28. In order to perpetrate the Illegal Hiring Scheme, Tyson has knowingly hired illegal workers who have been harbored and/or smuggled, in violation of § 274(a)(3) of the Immigration and Nationality Act ("the Act"), which provides that: "Any person who, during any 12-month period, knowingly hires for employment at least 10 individuals with actual knowledge that the individuals are aliens… shall be fined under Title 18, or imprisoned for not more than 5 years, or both." 8 U.S.C.§ 1324(a)(1)(B). Plaintiffs believe and thereon allege that Tyson has committed at least ten violations of the Act in each year since 1996, with actual knowledge that each individual hired was smuggled into the U.S. and harbored once here, and that its violations are ongoing, continuous, and will not stop without judicial intervention.
29. The violation of the Act is one of the predicate offenses under RICO. 18 U.S.C.§ 1961(1)(F).
30. As detailed above, Tyson has formed ongoing associations with its recruiters and temporary employment services for the purpose of executing an essential aspect of the Illegal Immigrant Hiring Scheme: the identification and recruitment for employment of illegal immigrants who are willing to be exploited by Tyson. Tyson could not successfully conduct the Illegal Immigrant Hiring Scheme without this enterprise, and its success in executing the Scheme for several years is the result of the discipline and single-mindedness it brings to this disparate group scattered throughout the country. Through Tyson management techniques, the group has functioned as a unit for years and continues to supply Tyson with the illegal workers it needs to depress workers' wages.
31. Tthe recruiters and temporary employment services also permit Tyson to shift responsibility for much of the illegal activity to others, thereby using the enterprises as a front to facilitate more racketeering activity than it could possibly commit on its own.
32. For example, Amador Anchondo-Rascon, who has entered a guilty plea to one count of the Indictment, has been described as "the perfect go-between for Tyson plant managers searching for low-wage workers" because of his exposure to the immigrant community in Shelbyville, Tennessee through his operation of a successful grocery store specializing in foods favored by Mexicans. During the last three years he sold thousands of illegal immigrants fraudulent identification documents from the store, as an informal Tyson employee. Tyson then accepted the fraudulent documents, no questions asked, even though it knew the workers were ineligible to be employed in the U.S.
33. Each association of Tyson and its recruiters and temporary employment services servicing each of the 15 Tyson facilities constitutes an association-in-fact enterprise affecting interstate or foreign commerce pursuant to 18 U.S.C. § 1961(4). However, the recruiters have existences apart from their affiliation with Tyson. They conduct both legitimate and illicit activities. Legitimately, they recruit legal workers for other employers. The illicit activities, facilitating Tyson’s Illegal Immigrant Hiring Scheme through recruiting illegal immigrant workers and/or manufacturing fraudulent identification documents at Tyson’s request, are concealed and separated from their legitimate activities.
34. Tyson’s demand for illegal immigrant workers requires extra care from the temporary employment services because Tyson’s need for illegal immigrants is difficult to satisfy and conceal simultaneously. Thus, these employment services have typically changed their manner of conducting business in order to meet Tyson’s requirements, and they do so under the constant threat that Tyson will terminate its lucrative alliance if they fail to fulfill Tyson’s demands.
35. As stated above, Tyson, a "person" within the meaning of RICO, has committed a pattern of racketeering activity (the Illegal Immigrant Hiring Scheme) through the association-in-fact enterprises with its recruiters and temporary employment services, since 1996. Section 1962(c) of RICO makes it illegal "[f]or any person… associated with any enterprise… to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs… through a pattern of racketeering activity."
36. Plaintiffs and Class members have been damaged in their business and property rights through their employment at depressed wages by Tyson. These injuries are the direct, proximate and intended result of the Illegal Immigrant Hiring Scheme, which is targeted at Tyson’s employees. These injuries were the intended and foreseeable consequence of the Illegal Immigrant Hiring Scheme and are compensable pursuant to Section 1964(c) of RICO.
37. There is only one reason for Tyson’s perpetration of the Illegal Immigrant Hiring Scheme: Tyson knows that the Illegal Immigrant Hiring Scheme drives down the wages paid to all the workers at its 15 facilities.
38. As intended, the Illegal Immigrant Hiring Scheme has driven the wages paid to the legal workers at the 15 facilities well below the wages they would otherwise be receiving.
PLAINTIFFS' EMPLOYMENT BY TYSON
39. Plaintiffs Trollinger, Eddings, Jewell and Martinez, all U.S. citizens, were employed as hourly workers at Tyson’s Shelbyville, Tennessee facility at various periods, since 1996.
40. At all relevant times, their wages were depressed as a result of the Illegal Immigrant Hiring Scheme.
Plaintiffs demand judgment and other relief as follows:
A. Certification of the Class pursuant to Fed. R. Civ. P. 23(b)(3);
B. Judgment in an amount equal to three times the damage caused the putative Class by Tyson’s racketeering activity, the Illegal Immigrant Hiring Scheme, pursuant to 18 U.S.C.§. 1964(c);
C. Preliminary and permanent injunctions enjoining Tyson from any further racketeering activity or any further association with its recruiters and temporary employment agencies;
D. Appropriate attorney’s fees, pursuant to 18 U.S.C. § 1964;
E. Trial by jury, pursuant to Fed. R. Civ. P. 38;
F. For any other relief the Court deems just and proper.
DATED: March, 2002.
Berta Trollinger, Robert Martinez, Doris Jewell and Tabetha Eddings
By
John D. McMahan
McMahan Law Firm
323 High St.
Chattanooga, TN 37403
(423)265-1100
Steve W. Berman
Andrew M. Volk
Hagens Berman LLP
1301 Fifth Avenue, Suite 2900
Seattle, WA 98101
(206) 623-7292
Howard W. Foster
Johnson & Bell, Ltd.
55 E. Monroe St., Suite 4100
Chicago, IL 60603
(312) 372-0770
Attorneys for Plaintiffs
Published on VDARE.COM — April 10, 2002
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