Case 1:22-cv-00484-RJJ-PJG ECF No. 1, PageID.1 Filed 06/01/22 Page 1 of 41
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`
`
`THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
`
`BENJAMIN LOPEZ, OSCAR CARLOS
`LOPEZ RAMIREZ, and RAMONA REYES
`SAUCEDO,
` Plaintiffs,
`v.
`
`MASTRONARDI PRODUCE-USA, INC., and
`MAROA FARMS, INC.,
` Defendants.
`
`§
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`
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`CLASS ACTION
`COMPLAINT
`Civil Action
`No: 1:22-CV-00484
`
`JURY TRIAL DEMANDED
`
`PLAINTIFFS’ ORIGINAL CLASS ACTION COMPLAINT
`
`1.
`
`Plaintiffs Benjamin Lopez, Oscar Carlos Lopez Ramirez, and Ramona Reyes
`
`Saucedo bring this class action on behalf of themselves and other similarly situated migrant and
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`seasonal farmworkers who worked for Maroa Farms, Inc. (“Maroa Farms”), and Mastronardi
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`Produce-USA, Inc. (“Mastronardi”) (collectively “Defendants”) in Defendants’ greenhouses
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`located in Coldwater, Michigan.
`
`2.
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`Beginning in 2020, Defendants violated multiple provisions of the Migrant and
`
`Seasonal Agricultural Worker Protection Act (“AWPA”), 29 U.S.C. §§ 1801-1872, and state
`
`common law by mishandling and failing to protect Plaintiffs and putative class members from the
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`pesticides being used in Defendants’ greenhouses in violation of the Worker Protection Standard
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`(“WPS”); violating Michigan Occupational Safety and Health Agency (“MIOSHA”) standards;
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`and using a false and misleading bonus structure that caused Plaintiffs and class members to work
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`faster and harder without being justly compensated. Plaintiff Ramona Saucedo Reyes also asserts
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`an individual cause of action for Defendants’ failure to pay overtime wages under the Fair Labor
`
`Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., and Improved Workforce Opportunity Wage
`
`1
`
`
`
`
`
`THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
`
`BENJAMIN LOPEZ, OSCAR CARLOS
`LOPEZ RAMIREZ, and RAMONA REYES
`SAUCEDO,
` Plaintiffs,
`v.
`
`MASTRONARDI PRODUCE-USA, INC., and
`MAROA FARMS, INC.,
` Defendants.
`
`§
`§
`§
`§
`§
`§
`§
`§
`
`
`
`
`CLASS ACTION
`COMPLAINT
`Civil Action
`No: 1:22-CV-00484
`
`JURY TRIAL DEMANDED
`
`PLAINTIFFS’ ORIGINAL CLASS ACTION COMPLAINT
`
`1.
`
`Plaintiffs Benjamin Lopez, Oscar Carlos Lopez Ramirez, and Ramona Reyes
`
`Saucedo bring this class action on behalf of themselves and other similarly situated migrant and
`
`seasonal farmworkers who worked for Maroa Farms, Inc. (“Maroa Farms”), and Mastronardi
`
`Produce-USA, Inc. (“Mastronardi”) (collectively “Defendants”) in Defendants’ greenhouses
`
`located in Coldwater, Michigan.
`
`2.
`
`Beginning in 2020, Defendants violated multiple provisions of the Migrant and
`
`Seasonal Agricultural Worker Protection Act (“AWPA”), 29 U.S.C. §§ 1801-1872, and state
`
`common law by mishandling and failing to protect Plaintiffs and putative class members from the
`
`pesticides being used in Defendants’ greenhouses in violation of the Worker Protection Standard
`
`(“WPS”); violating Michigan Occupational Safety and Health Agency (“MIOSHA”) standards;
`
`and using a false and misleading bonus structure that caused Plaintiffs and class members to work
`
`faster and harder without being justly compensated. Plaintiff Ramona Saucedo Reyes also asserts
`
`an individual cause of action for Defendants’ failure to pay overtime wages under the Fair Labor
`
`Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., and Improved Workforce Opportunity Wage
`
`1
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`Case 1:22-cv-00484-RJJ-PJG ECF No. 1, PageID.2 Filed 06/01/22 Page 2 of 41
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`Act (IWOWA), Mich. Comp. Laws § 408.931 et seq., while she was employed in non-agricultural
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`work in Defendants’ sanitation department.
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`3.
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`Plaintiffs and their similarly situated class members seek redress from Defendants
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`jointly and severally for Defendants’ violations of law, in the form of statutory or actual damages
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`under the AWPA, actual damages for Defendants’ contract violation, and actual and liquidated
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`damages plus reasonable attorneys’ fees and costs for Defendants’ violations of the FLSA and
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`IWOWA.
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`JURISDICTION AND VENUE
`
`4.
`
`The Court has original subject matter jurisdiction over the instant action pursuant
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`to 28 U.S.C. § 1331 (federal question), the Migrant and Seasonal Agricultural Worker Protection
`
`Act (“AWPA”), 29 U.S.C. § 1854(a) et seq., and the Fair Labor Standards Act (29 U.S.C. § 201
`
`et seq.), 29 U.S.C. § 216(b).
`
`5.
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`Pursuant to 28 U.S.C. § 1367(a), this Court has supplemental jurisdiction over the
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`Michigan state law claims asserted by Plaintiffs, on behalf of themselves and others similarly
`
`situated, as these claims are so related to the federal claims that they form part of the same case or
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`controversy.
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`6.
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`Venue is proper in this Court under 28 U.S.C. § 1391(b)(1) and (2) as this is the
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`judicial district where Defendants reside and in which a substantial part of the events or
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`omissions giving rise to the claim occurred.
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`PARTIES
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`Named Migrant Worker Plaintiffs
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`7.
`
`Plaintiff Benjamin Lopez (“Plaintiff Lopez” or “Mr. Lopez”) is a migrant
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`farmworker who currently resides in Georgia.
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`2
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`Case 1:22-cv-00484-RJJ-PJG ECF No. 1, PageID.3 Filed 06/01/22 Page 3 of 41
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`8.
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`At all times relevant to this Complaint, Plaintiff Lopez was a migrant agricultural
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`worker pursuant to the AWPA 29 U.S.C. § 1802 (8) and 29 C.F.R. § 500.20(p).
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`9.
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`In 2020, while in North Carolina, Plaintiff Lopez was recruited to work for
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`Defendants at their Coldwater greenhouse facility by Defendants, through Defendants’ farm
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`labor contractor Martinez & Sons Labor Contractors, LLC (hereinafter “Martinez & Sons”).
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`10.
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`Plaintiff Lopez worked for Defendants at their Coldwater greenhouse facility as a
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`greenhouse worker for one season, from approximately the end of August 2020 to February
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`2021, where he primarily worked performing hand labor on tomato plants, including de-leafing
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`and picking, and sanitizing equipment used for cultivation.
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`11. While working for Defendants in Coldwater, MI, Plaintiff Lopez maintained a
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`permanent place of residence is in Mexico.
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`12.
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`Defendants housed Plaintiff Lopez at the migrant housing facility owned and
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`operated by Defendant Maroa Farms located at 270 N. Fillmore, Coldwater, Michigan 49036.
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`13.
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`Plaintiff Oscar Carlos Lopez Ramirez (“Plaintiff Lopez Ramirez” or “Mr. Lopez
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`Ramirez”) is a migrant farmworker who currently resides in Mexico.
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`14.
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`At all times relevant to this Complaint, Plaintiff Ramirez Lopez was a migrant
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`agricultural worker pursuant to the AWPA 29 U.S.C. § 1802 (8) and 29 C.F.R. § 500.20(p).
`
`15.
`
`In 2019 and 2020 Plaintiff Lopez Ramirez was recruited to work for Defendants
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`at their Coldwater greenhouse facility by Defendants’ farm labor contractor Martinez & Sons.
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`16.
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`Plaintiff Lopez Ramirez worked for Defendants at their Coldwater greenhouse
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`facility as a greenhouse worker for two seasons, from approximately November 2019 to June
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`2020 and from approximately September 2020 to June 2021, where he primarily worked
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`3
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`Case 1:22-cv-00484-RJJ-PJG ECF No. 1, PageID.4 Filed 06/01/22 Page 4 of 41
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`performing hand labor on tomatoes, strawberries, and cucumbers, including de-leafing and
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`harvesting and was engaged in sanitization of equipment used for cultivation.
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`17.
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` While working for Defendants in Coldwater, MI, Plaintiff Lopez Ramirez
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`maintained a permanent place of residence in Florida.
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`18.
`
`Defendants did not provide Plaintiff Lopez Ramirez or his family members
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`housing at the migrant housing facility owned and operated by Defendant Maroa Farms in
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`Coldwater, Michigan.
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`19.
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`At all times relevant to this action, Plaintiffs Lopez and Lopez Ramirez were
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`employed in agricultural employment under AWPA, 29 U.S.C. § 1802(3) and 29 C.F.R.
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`§500.20(e), in that they were employed in the production, cultivation, growing, and harvesting of
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`agricultural or horticultural commodities and/or in work incident to or in conjunction with
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`Defendants’ growing operations, including preparation for market.
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`Named Seasonal Worker Plaintiff
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`20.
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`Plaintiff Ramona Reyes Saucedo (“Plaintiff Reyes Saucedo” or “Ms. Reyes
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`Saucedo”) is a resident of Michigan.
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`21.
`
`Plaintiff Reyes Saucedo worked for Defendants at their Coldwater greenhouse
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`facility as a seasonal greenhouse worker from approximately 2014 to approximately August 15,
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`2020, where she primarily performed hand labor on tomato, strawberry and cucumber plants,
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`including removing flowers and picking and pruning the various plants.
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`22.
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`During this time, Plaintiff Reyes Saucedo was a seasonal agricultural worker
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`within the meaning of the AWPA 29 U.S.C. §1802(10).
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`23.
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`During this time, Plaintiff Reyes Saucedo was employed in agricultural
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`employment under the AWPA, 29 U.S.C. § 1802(3) and 29 C.F.R. §500.20(e), in that she was
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`4
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`employed in the production, cultivation, growing, and harvesting of agricultural or horticultural
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`commodities and/or in work incident to or in conjunction with Defendants’ growing operations,
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`including preparation for market.
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`24.
`
`During this time, Plaintiff Reyes Saucedo was employed in work of a seasonal or
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`temporary nature under AWPA.
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`25.
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`For example, Defendants assigned Plaintiff Reyes Saucedo to different types of
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`work with different crops, based on Defendants’ planting and harvesting seasons at the
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`Coldwater facility.
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`26.
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`Plaintiff Reyes Saucedo’s work hours also fluctuated from approximately 10 to 70
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`hours a week based on Defendants’ planting and harvesting seasons at the Coldwater facility.
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`27.
`
`Defendants’ hiring paperwork indicated that Plaintiff Reyes Saucedo’s hours
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`could vary day to day, week to week, season to season and that she may experience long
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`intervals without work with minimal advance warning.
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`28.
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`Defendants have attested to the Department of Labor that they have seasonal labor
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`needs for crop-related activities, in seeking to hire H-2A temporary agricultural visa workers,
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`including that from 2016-2019 they had a seasonal need from February through December, and
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`that in December they changed their crop cycle creating a seasonal need from August to June.
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`29.
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`On or about, August 16, 2020, Defendants hired Plaintiff Reyes Saucedo as a
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`sanitation worker in Defendants’ sanitation department.
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`30.
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`Plaintiff Reyes Saucedo worked for Defendants as a sanitation worker until
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`approximately December 3, 2020.
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`5
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`31.
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`During her time as a sanitation worker, Plaintiff Reyes Saucedo was not an
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`agricultural worker and was not subject to the agricultural exemptions to the FLSA overtime
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`provisions, as defined in 29 U.S.C. §213(a)(6), (b)(12) and 29 C.F.R. § 780.
`
`Defendants
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`32.
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`Defendant Mastronardi Produce-USA, Inc. (“Mastronardi Produce-USA”) is a
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`wholly owned subsidiary of the Canadian company, Mastronardi Produce Ltd., which markets
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`and sells Mastronardi Produce-USA’s fruits and vegetables throughout the United States and
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`internationally under the “Sunset” brand.
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`33.
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`Upon information and belief Mastronardi Produce-USA maintains its
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`headquarters and largest distribution center in Livonia, Michigan.
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`34.
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`Upon information and belief Mastronardi Produce-USA has several wholly
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`owned subsidiary farming operations in the United States, one of which is Maroa Farms, Inc.
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`35.
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`Defendant Maroa Farms, Inc. (“Maroa Farms”) is a Michigan foreign, for-profit
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`corporation qualified to operate in Michigan in 2011, and incorporated in the state of Illinois.
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`36.
`
`Defendants operate greenhouses at 270 N Fillmore Rd., Coldwater, MI, 49036
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`(hereinafter the “Coldwater Facility”) where they produce hydroponically grown tomatoes,
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`cucumbers, and strawberries.
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`37. Maroa Farms owns and operates barracks-style migrant housing next to the
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`Coldwater Facility and at the same address, 270 N. Fillmore, Coldwater, Michigan 49036.
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`38. Mastronardi Produce-USA and Maroa Farms are a single employer under FLSA
`
`and AWPA as they are an integrated enterprise.
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`6
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`39.
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`Defendants share the same officers and directors, including President Paul
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`Mastronardi, Treasurer Marne Safrance, Secretary David Einstanding, and Director Donald
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`Mastronardi.
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`40. Mastronardi publicly refers to Maroa Farms as its facility and that it is engaged in
`
`growing Mastronardi’s produce, and that it uses Mastronardi’s growing methods.
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`41. Mastronardi’s Chief Growing Officer represented in a sworn affidavit in 2020 that
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`she is in frequent communication with the Maroa Farms Head Grower and familiar with Maroa
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`Farms labor needs.
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`42.
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`Upon information and belief, Maroa Farms uses Mastronardi’s branding, such as
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`the “Sunset” label on its produce.
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`43. Mastronardi has a “Careers at Sunset” page where it has posted jobs for Maroa
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`Farms for positions such as Crop Care Supervisor and Summer Greenhouse Intern.
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`Mastronardi’s job postings have referred to “[o]ur Maroa Farms facility” and references
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`Mastronardi Produce’s accommodation processes and policies as applicable to the Maroa Farms
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`job.
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`44.
`
`Upon information and belief, Maroa Farms uses Mastronardi’s Sunset-branded
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`systems and equipment at the Coldwater Facility.
`
`45.
`
`At all times relevant to this Complaint, Defendants were employers of Plaintiffs
`
`under FLSA, 29 U.S.C. § 203(d) and (g) and AWPA, 29 U.S.C. § 1802 (5), and determined the
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`terms and conditions of Plaintiffs’ employment, including their, bonuses, work hours, schedules,
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`manner of performance, and timekeeping, among other essential functions of an employer.
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`7
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`46.
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`Defendants are and at all relevant times were an enterprise within the meaning of
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`FLSA, 29 U.S.C. § 203(r), because they operate and have operated for a business purpose,
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`specifically, growing, harvesting and packing produce for sale.
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`47.
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`Defendants are and at all relevant times were an enterprise engaged in commerce
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`or in the production of goods for commerce within the meaning of FLSA, 29 U.S.C. §
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`203(s)(1)(A).
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`48.
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`Specifically, at all relevant times, Defendants’ employees regularly and
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`recurrently handled or otherwise worked on goods moved in or produced for commerce,
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`including but not limited to growing, harvesting, and packing tomatoes, strawberries, and
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`cucumbers for sale; and Defendants’ annual gross volume of sales or business was not less than
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`$500,000.
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`49.
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`At all times relevant to this action, Defendants were agricultural employers under
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`AWPA, 29 U.S.C. § 1802(2), in that they owned or operated a farm, packing shed and/or
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`nursery, and hired and employed the Plaintiffs and others as migrant or seasonal agricultural
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`workers.
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`GENERAL FACTUAL ALLEGATIONS
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`Defendants Employed Plaintiffs and the Greenhouse Workers at the Coldwater Facility
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`50.
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`Every year, Defendants employ over 200 workers to perform crop-related
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`activities in their Coldwater Facility greenhouses, which include over two million square feet of
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`indoor greenhouse space.
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`51.
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`Defendants refer to their Coldwater Facility greenhouses as “Phase 1,” “Phase 2,”
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`and “Phase 3.” Phase 1 is contained within one structure of the Coldwater Facility. Phases 2 and
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`8
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`3 are contained within a separate structure of the Coldwater Facility and are connected to Phase 1
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`by a corridor.
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`52.
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`During the relevant time periods, Defendants have grown and harvested tomatoes
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`in Phases 1 and 2 and have grown and harvested strawberries and cucumbers in Phase 3.
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`53.
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`Defendants have directly recruited and hired workers and used farm labor
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`contractors to recruit and hire workers, to work growing and harvesting crops in the Coldwater
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`Facility (hereinafter the “greenhouse workers”).
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`54.
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`Plaintiffs, along with the other Coldwater Facility greenhouse workers, worked
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`under Defendants full control and supervision regardless of whether they were recruited and
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`hired through one of Defendants’ farm labor contractor agents, or directly by Defendants.
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`55.
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`Defendants have directly trained and supervised Plaintiffs and Phases 1, 2, and 3
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`greenhouse workers including providing daily instruction and review of their work.
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`56.
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`Defendants have made all decisions related to Plaintiffs’ and the greenhouse
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`workers’ job assignments, which have included what location, crop and rows they would be
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`assigned to work in, and what specific tasks they would be assigned to complete.
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`57.
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`Defendants have assigned Plaintiffs and the greenhouse workers their work
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`schedules including controlling their starting and stopping times.
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`58.
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`Defendants have tracked the number of hours Plaintiffs and greenhouse workers
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`have worked using electronic identification cards.
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`59.
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`Defendants have set and have enforced production standards for Plaintiffs and
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`greenhouse workers and tracked each worker’s piece rate for all crop-related tasks.
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`60.
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`Defendants have determined Plaintiffs’ and the greenhouse workers’ bonus piece
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`rates.
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`9
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`61.
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`Defendants have controlled the environmental conditions inside the Coldwater
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`Facility greenhouses, including the temperature, humidity, light, and air quality.
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`62.
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`Defendants have controlled which locations of the Coldwater Facility Plaintiffs
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`and greenhouse workers were permitted to enter on a given day.
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`63.
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`Defendants have established policies and procedures for entering each
`
`greenhouse, including what Plaintiffs and greenhouse workers have been permitted to wear
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`inside the Coldwater Facility greenhouses.
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`64.
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`Defendants have directed the handling and administration of pesticides, including
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`regulated disinfectants, at the Coldwater Facility, including their labeling, and tracking.
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`65.
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`Defendants have been responsible for following the requirements of the Federal
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`Insecticide, Fungicide, and Rodenticide Act (“FIFRA”) in relation to their use of pesticides,
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`including regulated disinfectants, which includes meeting all applicable requirements of the
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`Worker Protection Standard (“WPS”) 40 C.F.R. Part 170.
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`66.
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`Defendants have been responsible for hazard communications, training and
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`notifying workers regarding the use of pesticides at the Coldwater Facility.
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`67.
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`Defendants have been responsible for the provision of personal protective
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`equipment (PPE), including testing and fitting of PPE, at the Coldwater Facility.
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`68.
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`Defendants have been responsible for providing medical transportation for
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`workers injured by exposure to pesticides.
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`69.
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`Defendants have been responsible for providing Plaintiffs and greenhouse
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`workers access to potable and cool drinking water at the Coldwater Facility, pursuant to the
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`MIOSHA field sanitation standards. Mich. Comp. Laws § 408.1014n.
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`10
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`70.
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`Defendants have been responsible for ensuring the Coldwater Facility was a
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`“place of employment that is free from recognized hazards that are causing, or are likely to
`
`cause, death or serious physical harm to the employee” pursuant to the MIOSHA general duty
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`clause, Mich. Comp. Laws § 408.1011(a).
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`Defendants’ Use of Harmful Pesticides
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`71.
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`Defendants have utilized “Integrated Pest Management” techniques in the
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`Coldwater Facility greenhouses, which includes disinfection of plant troughs, trays, tools,
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`containers, equipment, floors, and other surfaces throughout the greenhouse to manage pests and
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`plant pathogens such as viruses and bacteria that can cause diseases in plants.
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`72.
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`Defendants have directed regular sanitizing of equipment and tools that are in
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`daily contact with the tomato plants
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`73.
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`At the end of each tomato harvest, Defendants also have directed greenhouse
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`workers to prepare for the new tomato plants by disinfecting all the growing areas, equipment,
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`and tools, including troughs, trays, trolleys, carts, trimmers, and knives.
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`74. Many of the chemicals used to disinfect at the Coldwater Facility are regulated by
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`the Environmental Protection Agency (“EPA”) as pesticides under the FIFRA.
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`Defendants Increased Use of Disinfectant Pesticides in the 2020-2021 Season
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`75.
`
`During the 2020-2021 tomato season, Defendants increased disinfection practices
`
`in the Coldwater Facility and told workers this was to prevent the spread of a tomato virus.
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`76.
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`Defendants began requiring that Plaintiffs and the greenhouse workers be
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`fingerprinted, telling them it was to track their movement to other Mastronardi greenhouses to
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`prevent the spread of the tomato virus.
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`11
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`77.
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`In or around August 2020, Defendants began instructing Plaintiff Lopez and other
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`greenhouse workers in the Coldwater Facility to spray disinfectant daily, on the trolleys and carts
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`used in each row of tomato plants.
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`78.
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`Plaintiff Lopez Ramirez and other greenhouse workers were instructed to
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`continue working in the same rows while disinfectant was being sprayed.
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`79.
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`Upon information and belief, the disinfectant Plaintiff Lopez and other
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`greenhouse workers were spraying on trolleys and carts was Virkon S.
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`80.
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`Virkon S is a broad-spectrum disinfectant and virucide and is registered with the
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`EPA as a pesticide.
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`81.
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`The Safety Data Sheet (“SDS”) for Virkon S indicates it can cause serious eye
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`damages, skin irritation and respiratory irritation, and that it should only be used with appropriate
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`Personal Protective Equipment (PPE), including chemical splash goggles and/or face shield and
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`protective clothing, protective gloves, and protective footwear.
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`82.
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`The SDS for Virkon S further indicates it should only be used with adequate
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`ventilation, that if airborne concentrations exceed standards, a NIOSH approved air-purifying
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`particulate respirator with N-95 filters should be used, and that if inhalation hazards exist, a full-
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`face respirator may be required.
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`83.
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`Plaintiffs Lopez and Lopez Ramirez and the greenhouse workers were also
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`directed to disinfect tools, trays and gloves in tubs of bleach.
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`2020-2021 Phase 2 Disinfection
`
`84.
`
`In the Phase 2 greenhouse of the Coldwater Facility, Defendants were aware of
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`the presence of the tomato virus as early as July 2020.
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`12
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`85.
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`Approximately 60 greenhouse workers worked in Phase 2 during the 2020-2021
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`season.
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`86.
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`In or around November 2020, Plaintiffs and the greenhouse workers frequently
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`began to smell the strong odor of bleach throughout Phase 2 of the Coldwater Facility when they
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`arrived for work.
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`87.
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`Plaintiffs Lopez and Lopez Ramirez talked to members of a night shift spraying
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`crew about how long they were spraying chemicals in the greenhouse. They were told spraying
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`would last all night until approximately 5:00am.
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`88.
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`Plaintiffs Lopez and Lopez Ramirez and the greenhouse workers would begin
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`work as early as 6:00 or 6:30am, and often see the overnight spraying crew leaving when they
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`arrived.
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`89.
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`In late 2020, Defendants directed the Phase 2 tomato plants to be torn out. The
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`subsequent cleaning and intensive disinfecting period lasted three to four weeks.
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`90.
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`During this disinfection period, Plaintiff Lopez and other greenhouse workers
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`were required, on a daily basis, to disinfect smaller items by hand in tubs and spray larger items
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`with sprayers.
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`91.
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`During this period Defendants also continued widespread spraying of the
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`greenhouse with large machine sprayers that operated on a rail system running down every row,
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`spraying tomato troughs and equipment.
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`92.
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`Upon information and belief, Virkon S was administered during this period along
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`with Sodium Hypochlorite 12.5%, and Virocid, which are also EPA registered pesticides
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`13
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`93.
`
`Upon information and belief, all three disinfectants were machine sprayed
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`throughout the greenhouse during this period, and Virkon S and Sodium Hypochlorite 12.5%
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`were also administered by hand by Plaintiffs and the greenhouse workers.
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`94.
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`Sodium hypochlorite 12.5% is highly concentrated chlorine bleach and is an EPA
`
`registered pesticide.
`
`95.
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`The SDS for sodium hypochlorite 12.5% warns that it can cause severe skin
`
`burns, serious and irreversible eye damages, and respiratory irritation. Immediate medical
`
`attention is required for respiratory irritation, dizziness, nausea, or unconsciousness occurs. It
`
`requires adequate ventilation is to keep airborne concentrations below exposure guidelines or
`
`otherwise use of an approved respirator.
`
`96.
`
`The pesticide label for Sodium Hypochlorite 12.5% recommends that treated
`
`areas be vacated at least 2 hours before entry.
`
`97.
`
`Virocid is a concentrated disinfectant based on quaternary ammonium and is an
`
`EPA registered pesticide.
`
`98.
`
`Virocid’s label requires wearing protective eyewear, protective clothing, rubber
`
`gloves and the wearing of ing a particulate filtering respirator in order not to breathe the spray
`
`mist.
`
`99.
`
`Virocid’s SDS further directs it should only be used with proper ventilation to
`
`minimize dust or vapor concentrations and that an appropriate respirator should be used if
`
`airborne particles are generated.
`
`100. Virocid’s SDS warns it can cause “severe burns and eye damage,” “allergic skin
`
`reaction,” “allergy or asthma symptoms or breathing difficulties if inhaled.”
`
`Defendants’ Pesticide Violations of MIOSHA and the WPS
`
`14
`
`
`
`Case 1:22-cv-00484-RJJ-PJG ECF No. 1, PageID.15 Filed 06/01/22 Page 15 of 41
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`101. During the applicable periods, Defendants did not comply with MIOSHA’s
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`general duty clause, Mich. Comp. Laws § 408.1011, the WPS 40 C.F.R. Part 170.
`
`102. When Defendants began directing greenhouse workers to spray Virkon S,
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`Defendants did not provide any training on how to handle it safely and failed to tell them about
`
`the possible effects of exposure or what to do with soiled clothes.
`
`103. Greenhouse workers spraying Virkon S were not provided any additional PPE
`
`beyond the latex gloves and surgical or cloths masks they already had for handling the plants,
`
`and COVID-19, respectively. Greenhouse workers working in close proximity to the spraying
`
`were likewise also not given any additional PPE.
`
`104. One day in late 2020, Plaintiff Reyes Saucedo was told by her managers Jessica
`
`and Maria to remove the label from Virkon S and replace it with a different product because food
`
`safety inspectors were coming and they did not want them to see the Virkon label.
`
`105. When Defendants directed Plaintiffs Lopez and Lopez Ramirez and the
`
`greenhouse workers to disinfect tools, trays and gloves in tubs of bleach, they were forced to
`
`reach into the bleach up to their elbows, wearing only latex gloves covering their hands.
`
`106. During the 2020-2021 disinfection of Phase 2, machine spraying was conducted
`
`on a near daily basis, during both night and day shifts for multiple weeks. Spraying during the
`
`night shift would begin in the evening and continue until around 5am the following day. During
`
`day shifts, machine spraying would take place in the greenhouse while greenhouse workers were
`
`also present.
`
`107. During this period Plaintiffs Lopez, Lopez Ramirez and greenhouse workers were
`
`routinely required to begin their shift as early as 6:00 or 6:30 am and would smell the strong
`
`bleach or other chemical odors as soon as they arrived.
`
`15
`
`
`
`Case 1:22-cv-00484-RJJ-PJG ECF No. 1, PageID.16 Filed 06/01/22 Page 16 of 41
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`108. Defendants did not provide adequate ventilation, opening only a limited number
`
`of windows and doors.
`
`109. Upon information and belief Defendants did not conduct any air monitoring after
`
`spraying Virkon S, sodium hypochlorite 12.5%, or Virocid to determine if airborne
`
`concentrations were below exposure guidelines
`
`110. Defendants did not provide Plaintiffs Lopez, Lopez Ramirez or the greenhouse
`
`workers with appropriate PPE. For the majority of the disinfection period, Plaintiffs Lopez,
`
`Lopez Ramirez and the greenhouse workers were only provided with basic latex gloves and
`
`surgical masks. Some workers received safety glasses.
`
`111.
`
`It was not until the last few days of the disinfection process that workers handling
`
`disinfectants were provided with full elbow-length gloves, goggles and full face respirators, and
`
`clothing coveralls.
`
`112. Defendants did not provide any safety training to Plaintiffs Lopez, Lopez Ramirez
`
`or the other greenhouse workers on the handling of disinfectants when cleaning tools and
`
`equipment.
`
`113. Defendants did not provide written or oral information to Plaintiffs Lopez, Lopez
`
`Ramirez or the other greenhouse workers regarding what disinfectants they were using nor what
`
`was being sprayed by the machine sprayers.
`
`114.
`
`Plaintiff Lopez looked for labels on the large containers of disinfectant the
`
`greenhouse workers used to fill smaller sprayers, but he did not see names on some of the
`
`containers.
`
`Exposure to Disinfectant Pesticides Caused Serious Medical Issues
`
`16
`
`
`
`Case 1:22-cv-00484-RJJ-PJG ECF No. 1, PageID.17 Filed 06/01/22 Page 17 of 41
`
`115.
`
`When Plaintiff Reyes Saucedo prepared the Virkon S barrels as a sanitation
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`worker she experienced nosebleeds, burning eyes, and skin irritation. She complained to
`
`managers Sulema and Jessica but her concerns were dismissed.
`
`116.
`
`Plaintiff Reyes Saucedo observed other greenhouse workers experience nose
`
`bleeds, and skin issues in reaction to exposure to Virkon S. One worker complained to Sulema
`
`about severe rashes all over her hands and arms, saying she needed medical treatment but
`
`Sulema said she couldn’t help her.
`
`117. When greenhouse workers were unable to work because of adverse reactions to
`
`the disinfectants they were told to take a break. If they were then not able to continue working
`
`they were sent home without pay.
`
`118. Throughout the Phase 2 disinfection, Plaintiffs Lopez, Lopez Ramirez and the
`
`other greenhouse workers also frequently experienced nose bleeds, red, burning and watering
`
`eyes, headaches, feeling faint or fainting, and skin reactions including itching, burning, blisters
`
`and rashes.
`
`119.
`
`During the disinfection period, Plaintiffs Lopez frequently saw piles of bloody
`
`tissue paper in the bathrooms the workers used.
`
`120.
`
`Plaintiff Lopez Ramirez complained to one of the managers, Sulema, about
`
`feeling sick because of the disinfectants, as he was experiencing headaches, burning eyes, nose
`
`and throat, nose bleeds, nausea and dizziness. She told him to go home without pay and come
`
`back the next day.
`
`121.
`
`Defendants did not offer Plaintiff Lopez Ramirez medical treatment or
`
`transportation to access medical treatment.
`
`17
`
`
`
`Case 1:22-cv-00484-RJJ-PJG ECF No. 1, PageID.18 Filed 06/01/22 Page 18 of 41
`
`122.
`
`Plaintiff Lopez began experiencing daily nose bleeds during the Phase 2
`
`disinfection period. When he complained one day to his supervisor Miriam about a nosebleed,
`
`she told him to take a break, but said that if his nose bleed didn’t stop he would be sent home and
`
`not paid. He was not offered medical treatment or transportation to access medical treatment.
`
`Plaintiff Lopez waited for his nosebleed to stop and returned to work.
`
`123. Another day during the Phase 2 disinfection when Plaintiff Lopez got a severe
`
`headache and told a manager he knew as Sulema that he needed a more protective mask. He was
`
`again not offered medical treatment or transportation to access medical treatment.
`
`124. Another day Plaintiff Lopez saw a worker faint inside the greenhouse. Two
`
`supervisors sent the worker outside. The worker was later brought back in to continue working.
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`The worker got sick the next day again and was sent home and didn’t come back for 3 days.
`
`125.
`
`In January 2021, Plaintiff Lopez Ramirez also had bleach splash into his right eye
`
`while disconnecting a broken hose. He told his supervisor, Miriam, who sent him to wash it out,
`
`but he was not offered medical treatment or transportation to access medical treatment. His eye
`
`continued burning for weeks.
`
`
`
`Failure to Provide Adequate Potable Drinking Water
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`126. For approximately three weeks in or around January 2021, Defendants only
`
`provided Plaintiffs Lopez and Lopez Ramirez and the greenhouse workers with one, one gallon
`
`jug of drinking water per person, per workweek.
`
`127. The jugs of water sat out in the warm, humid temperatures of the greenhouse, and
`
`would get hot, developing a foul odor that did not seem safe to drink after a couple of days.
`
`128. Plaintiffs Lopez and Lopez Ramirez and the greenhouse workers were not
`
`permitted to bring in their own water to the greenhouses.
`
`18
`
`
`
`Case 1:22-cv-00484-RJJ-PJG ECF No. 1, PageID.19 Filed 06/01/22 Page 19 of 41
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`CLASS ACTION ALLEGATIONS
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`129. Plaintiffs Lopez and Lopez Ramirez assert AWPA working arrangement claims
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`on behalf of themselves and the Greenhouse Worker Class.
`
`130. Plaintiffs assert AWPA and contract claims for unpaid bonuses on behalf of
`
`themselves and the Bonus Rate Class.
`
`131. Plaintiffs Lopez and Lopez Ramirez assert AWPA written disclosure claims on
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`behalf of themselves and the Written Disclosures Class.
`
`Greenhouse Worker Class
`
`132.
`
` Plaintiffs Lopez and Lopez Ramirez bring a class action, pursuant to Federal
`
`Rule of Civil Procedure 23, to represent a class of greenhouse workers (the “Greenhouse Worker
`
`Class”) that is defined as:
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`All non-H-2A migrant or seasonal workers employed in the
`cultivation, growing, or harvesting
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