UNITED STATES DISTRICT COURT FOR THE WESTERN …...Lozano Raimon Martinez Elias Mejia Socimo Morales Eveli Morales Gerardo Morales Hugo Morales Jose Moreno Ishmael Moreno Marcos

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF KENTUCKY

LOUISVILLE DIVISION

THOMAS E. PEREZ, Secretary )of Labor, United States )Department of Labor, )

) Civil Action No. _____________Plaintiff )

)v. )

) COMPLAINTKDE EQUINE, LLC, ) (Injunctive Relief Sought)d/b/a STEVE ASMUSSEN STABLES, )and STEVE ASMUSSEN, )

)Defendants )

This cause of action, which arises under the Fair Labor

Standards Act of 1938, as amended, 29 U.S.C. § 201, et seq.,

(hereinafter “FLSA” or “the Act”), is brought by the Plaintiff

pursuant to authority granted by Section 11(a) and Section 16(c) of

the Act, 29 U.S.C. § 211(a) and § 216(c).

I

Jurisdiction hereof is conferred upon the Court by

Section 17 of the Act, 29 U.S.C. § 217, to enjoin violations of the

Act and to restrain the withholding of back wages due under the

Act; and by 28 U.S.C. § 1345 to award additional amounts, equal to

back wages due, as liquidated damages under Section 16(c) of the

Act, 29 U.S.C. § 216(c).

3:15-cv-562-DJH

Case 3:15-cv-00562-CRS Document 1 Filed 06/25/15 Page 1 of 7 PageID #: 1

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II

A. Defendant, KDE Equine, LLC, is an active limited

liability company organized under the laws of the State of Texas,

having conducted business at Churchill Downs racetrack, 700 Central

Avenue, Louisville, Kentucky, 40208 within the jurisdiction of this

Court, and at all times hereinafter mentioned, has been engaged in

the training of horses.

B. Defendant, Steve Asmussen, at all times hereinafter

mentioned, as a member and the president, has acted directly or

indirectly in the interest of defendant KDE Equine, LLC,

d/b/a Steve Asmussen Stables, in relation to its employees, and

therefore, has been, and is, an employer within the meaning of

Section 3(d) of the Act, 29 U.S.C. § 203(d). Although defendant

Asmussen is believed to be a resident of the State of Texas, he has

substantial contacts within the jurisdiction of this Court due to

his business activities vis a vis defendant KDE Equine, LLC,

d/b/a Steve Asmussen Stables, at Churchill Downs racetrack,

700 Central Avenue, Louisville, Kentucky, 40208.

C. Since January 24, 2013, defendants KDE Equine, LLC,

d/b/a Steve Asmussen Stables, and Steve Asmussen, have been under a

permanent injunction issued by the United States District Court for

the Eastern District of New York to ensure their compliance with

the FLSA, including but not limited to the payment of minimum

wages, overtime wages, and the requirement to make, keep, and


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preserve adequate records of their employees, as prescribed by the

Regulations issued pursuant to Section 11(c) of the Act and found

at 29 CFR Part 516. Defendants further agreed to pay backwages and

liquidated damages in the total amount of $29,095.97 to employees

performing services for defendants prior to July 21, 2012 in

New York state. A copy of the permanent injunction and consent

judgment is attached hereto as Exhibit A and incorporated herein by

reference.

III

A. Defendants, at all times hereinafter mentioned, have

suffered or permitted to work employees and therefore have been

employers within the meaning of Sections 3(d) and 3(g) of the Act,

29 U.S.C. §§ 203(d) and 203(g).

B. At all times hereinafter mentioned, defendants

employed employees that have been and are engaged in commerce or in

the production of goods for commerce, within the meaning of

Sections 3(b) and (j), respectively, of the Act, 29 U.S.C.

§§ 203(b) and (j).

IV

At all times hereinafter mentioned:

A. Defendants, having been engaged in related

activities performed either through unified operation or common

control for a common business purpose, constitute an enterprise

within the meaning of Section 3(r)(1) of the Act, 29 U.S.C.

§ 203(r)(1).


4

B. Such enterprise, employing employees engaged in

commerce or in the production of goods for commerce, or employees

handling, selling or otherwise working on goods or materials that

have been moved in or produced for commerce.

C. Such enterprise operates as a business engaged in

the training of racehorses at locations in Kentucky, New York, and

Texas, if not other states, and therefore constitutes an enterprise

engaged in commerce or in the production of goods for commerce

within the meaning of Section 3(s)(1)(A) of the Act, 29 U.S.C.

§ 203(s)(1)(A).

D. Therefore, during the period at issue the said

employees were employed in an enterprise engaged in commerce, or in

the production of goods for commerce, within the meaning of

Sections 3(r)(1) and/or 3(s)(1) of the Act, and the employees and

the enterprise were subject to Sections 6, 7, and 11(c) of the Act,

29 U.S.C. §§ 206, 207 and 211(c).

V

Since at least June of 2012, the defendants have

willfully and repeatedly violated the provisions of Sections 7 and

15(a)(2) of the Act, 29 U.S.C. §§ 207 and 215(a)(2), by employing

employees who have been engaged in commerce, or in the production

of goods for commerce, for workweeks longer than 40 hours without

compensating such employees for their employment in excess of such

hours at rates not less than one and one-half times the regular

rates at which they were employed. The employees at issue were and


5

are employed by defendants at Churchill Downs, within the

jurisdiction of this Court, as hot walkers and/or grooms. Further,

at least two individuals employed by defendants at Churchill Downs

were and are erroneously treated as exempt employees under Part 541

of the Regulations.

VI

Since at least June of 2012, the defendants, subject to

the provisions of the Act, have willfully and repeatedly violated

the provisions of Sections 11(c) and 15(a)(5) of the Act, 29 U.S.C.

§§ 211(c) and 215(a)(5), and the Regulations found at 29 C.F.R.

§ 516 by failing to make, keep and preserve adequate and accurate

records of the persons employed and of the wages, hours and other

conditions and practices of employment maintained by the

enterprise, as prescribed in the aforesaid Regulations. For

example, the defendants failed to maintain and preserve adequate

accurate, and/or complete records during the entire time period

prescribed by the Regulations of the hours actually worked, pay

received, including amounts attributed to overtime, and the true

regular rate of pay, of employees working as hot walkers and/or

grooms. As an additional example, defendants failed to maintain

records of hours worked during the entire period prescribed by the

Regulations for the two individuals erroneously treated as exempt

employees under Part 541 of the Regulations.


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VII

WHEREFORE, cause having been shown, plaintiff prays

for Judgment:

1. Permanently enjoining defendants, their agents,

servants, employees and all persons in active concert or

participation with them, from violating the provisions of

Sections 6, 7, 11(c), 15(a)(2) and 15(a)(5) of the Act, 29 U.S.C.

§§ 206, 207, 211(c), 215(a)(2), and 215(a)(5), in accordance with

Section 17 of the Act, 29 U.S.C. § 217, for activities occurring

within the jurisdiction of this Court.

2. Restraining the withholding of payment of wages

found by the Court to be due employees under the Act (as named in

“Exhibit B” attached hereto and made a part hereof and such other

employees as hereafter may be identified and named prior to or at

trial), for a period of three years prior to the filing date of

this complaint, in accordance with Section 17 of the Act, 29 U.S.C.

§ 217.

3. Awarding back wages for a period of three years

prior to the filing date of this complaint, and an additional equal

amount as liquidated damages to employees (as named in “Exhibit B”

attached hereto and made a part hereof and such other employees as

hereafter may be identified and named prior to or at trial) in

accordance with Section 16(c) of the Act, 29 U.S.C. § 216(c).


4. For such other and further relief as may be

necessary and appropriate including interest on such back wages at

the underpayment rate established by the Secretary of the Treasury,

pursuant to 26 U.S.C. § 6621, from the date they became due until

paid, and costs of this action.

5. For any and all other remedies which may be

available and within the equity powers of this Court, so that the

defendants fully comply with the Act during any and all of their

business activities conducted within the jurisdiction of this Court

at any time now or in the future.

Respectfully submitted,

M. PATRICIA SMITHSolicitor of Labor

STANLEY E. KEENRegional Solicitor

POST OFFICE ADDRESS: THERESA BALLAssociate Regional Solicitor

Office of the SolicitorU. S. Department of Labor618 Church Street /s/ Neil A. Morholt __Suite 230 NEIL A. MORHOLTNashville, Tennessee 37219-2440 Attorney

Telephone: (615) 781-5330 /s/ Thomas J. MotznyFax No. (615) 781-5321 THOMAS J. MOTZNYE-mail: [email protected] Attorney

[email protected]@dol.gov U. S. Department of Labor

Attorneys for the Secretary


Case 3:15-cv-00562-CRS Document 1-1 Filed 06/25/15 Page 1 of 1 PageID #: 8

Exhibit A


EXHIBIT B

Last Name First Name Aguilar Aura Alfonso Jose A Alvarado Efrain Alvarez Melvin Ambeliz Gloria Aragon Bertario Aragote-Martinez

Fransico

Arano Gisela Bahena Alberto Bahena Joel Baltazar Jerardo Barrientos Donald Barrientos Edwin Billalovos Jose Bizmaier Russell Cano Auner Cano Clementino Carmona Roberto Ceja Hector Cisneros Victor Diaz Daisy Espinoza Javier Figueroa Maria Godoy Jose Gomez Hector Gonzalez Carlos Gonzalez Cesilio Gonzalez Hugo Gonzalez Martha Gonzalez Oraldo Gonzalez Sergio Gutierrez Adolfo Gutierrez Amador Gutierrez Elizabeth Gutierrez Idelberto Gutierrez Jose Gutierrez Julio Gutierrez Maximo Gutierrez Victor J. Hernandez Carlos Hernandez Eduardo


EXHIBIT B

Hernandez Elmer Hernandez Mario Hernandez Miguel Hernandez Ruben Herrera Rony Ignacio Gilberto Lopez Fidel Lopez Jose Lopez Marvin Lozano Raimon Martinez Elias Mejia Socimo Morales Eveli Morales Gerardo Morales Hugo Morales Jose Moreno Ishmael Moreno Marcos Munoz Adolfo Munoz Leonel Ordaz Felipe Ortiz Luis Ortiz Ricardo Oscal Marina Osorio Abishmael Osorio Bartolo Osorio Darmin Osorio Luis Osorio Rene Par Alberto Parra Saul Payeras Yoni Perez Christian Perez Elizandro Pineda Esdras Quevado Leidy Radosevich Jamie Ramirez Filiberto Ramirez Luis Rodriguez Juan Rodriguez Marcos Ruiz Roberto Salazar Mario


EXHIBIT B

Saldivar Annalleli Salva Jose Sanchez Cira Sanchez Osmar Sanchez Sandra Torrez Ricardo Trejo Ismael Uscanga Aurelio Uscanga Julio Uscanga Lazaro Uscanga Ricardo Usganga Bartolo Valle Angel Vargas Roberto Werner Rowdy Williams Azelius


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UNITED STATES DISTRICT COURT FOR THE WESTERN …...Lozano Raimon Martinez Elias Mejia Socimo Morales Eveli Morales Gerardo Morales Hugo Morales Jose Moreno Ishmael Moreno Marcos