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
I.
NATURE OF ACTION
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.
II.
PARTIES AND JURISDICTION
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).
III. CLASS ALLEGATIONS
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:
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.
IV.
STATEMENT OF OPERATIVE FACTS
A. The Illegal Immigrant Hiring Scheme:
Years of Racketeering Activity
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.
V. THE
RACKETEERING ACTS
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).
VI. THE
RICO ENTERPRISEs
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.
VII. PRAYER FOR RELIEF
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
