By Jordan Nailon / firstname.lastname@example.org
CURTIS — A shadow has been lingering over Southbank Dairy for years, and it has nothing to do with the microclimate of the Boistfort Valley. Instead, a series of employees have levied detailed allegations of racially-based discrimination that have led to multiple court cases, including a pending bankruptcy, for the former farm owner and operator, Jerry D. Foster.
In March 2016, seven employees who identify as Latino or Mexican filed suit against Foster in U.S. District Court
seeking damages for a lengthy list of grievances that date back more than a decade in some instances.
In one example noted in the official complaints against Foster, a worker alleges that he was struck in the face by a heavy chain that knocked out his front teeth. That worker claims Foster offered no assistance, monetary or otherwise, and he was forced to live without front teeth for two years. Ultimately, the claim states that the worker paid about $7,000 out of pocket for corrective dental work and Foster then refused to reimburse him for any expenses.
As part of lengthy pre-trial proceedings, an amended complaint was filed by the plaintiffs in September 2016. After more than a year of legal wrangling, the trial was set to begin in April 2017. Instead, the drama took a different turn when Foster filed for chapter 12 bankruptcy at 7:30 p.m. on April 13, one business day prior to the scheduled start of the trial.
More than eight months after that abrupt shift of venue, the bankruptcy case is still mired in layers of legal maneuvering. Additional allegations of fraud related to the bankruptcy have only served to muddy the waters even further.
“Certainly Mr. Foster had an opportunity to assert his defenses in a court of law before the U.S. District Court. He instead elected to file for bankruptcy and then the Trustee’s Office had concerns about fraud in the bankruptcy … That’s how we’ve wound up where we are now,” said Erin Pettigrew, a lawyer working on the legal team for the seven plaintiffs.
Lawyers for the plaintiffs have noted in legal documents that Foster allegedly threatened to file bankruptcy numerous times during the preliminary stages of the U.S District Court proceedings. They contend that he waited until the last moment to file his claim in an attempt to evade legal accountability for his actions. Conversely, Foster’s attorney argued that extensive legal fees associated with pre-trial costs left his client cash-strapped.
At one point during the bankruptcy proceedings, it was discovered that Foster was attempting to sell part or all of his herd to a livestock dealer in defiance of a court order.
As it stands now, Foster has been evicted from his farm and a trustee has been appointed by the court to oversee operations while Southbank Dairy is on the market for sale. The 398-acre property, complete with a functioning dairy and farmhouse, has been on the market for around three weeks through Century 21 Lund, Realtor, with an asking price of $2.3 million.
While the financials are sorted out on the bankruptcy side of things, there is still the lingering issue of the original complaints of racially-based worker discrimination and chronic failure to pay wages. Those workers are seeking back pay for lost and unpaid wages, punitive damages, exemplary damages, prejudgment interest, compensation for personal injury and associated medical bills, as well as damages for humiliation, loss of enjoyment of life, pain and suffering, personal indignity, embarrassment, fear, sadness, anger, anxiety, anguish and other forms of “garden variety” emotional distress, and other court costs.
“When a person files for bankruptcy there is an automatic stay on the U.S. District, or Federal Court case, so the case was then litigated in the bankruptcy court in relation to the fraud and other issues,” explained Pettigrew, who is still working to secure what she feels is adequate compensation for the extensive and egregious complaints levied by her clients.
While the stay remains in place on the trial in U.S. District Court, lawyers for the plaintiffs have filed a matching suit against Foster that is tagged to the bankruptcy case in an effort to make the workers official creditors of Foster.
“My clients are hardworking, honest people who have been nothing but loyal to this man,” asserted Pettigrew, who declined to go into specifics about her clients while the cases are ongoing. “I have concerns about the safety of my clients and retaliation against my clients because of the heated nature of this case,” she said.
Complaints filed in U.S. District Court by the plaintiffs include systematic deprivation of rest and meal breaks, illegal deductions from paychecks nearly every pay period, unsafe conditions and a failure to provide access to medical care for injuries sustained on the job. Workers also reported working six to seven days per week, typically tallying between 50 and 140 hours each week with inadequate rest and meal opportunities. One man reported sleeping in a barn “because traveling home to sleep robbed him of what little time he had to rest.”
Another complaint alleges that the more hours one man worked the more Foster skimmed off of each check. That worker estimates that upwards of 30 hours were deducted from each check, dropping his actual wage to less than $7 per hour. He claims the practice continued even after he repeatedly brought up his concerns to Foster, and other workers have claimed being paid wages that equal less than $5 per hour through similar tactics.
The complaint adds that only Latino and Mexican employees were treated poorly while white and non-latino employees received full wages as well as access to, and reimbursement for, medical care. Some workers claimed they were even charged unauthorized monthly fees for insurance, mandatory work cellphones and a mysterious “INS” charge.
“The deductions for the phone and ‘INS’ were improper and solely benefitted Defendants,” reads the complaint against Foster.
Another allegation states that when a worker stepped on a rusty nail and his foot became infected, he was forced to continue working for eight straight days without any offer for aid despite a noticeable limp. For comparison, the plaintiffs’ complaint notes that when a white co-worker named “Ritchie” broke his foot while working at Southbank Dairy, Foster personally drove him to the hospital, ensured him that the medical costs would be covered and even provided a few months of salary while he was off his feet.
Another worker alleges that Foster promised on-site housing for himself and his family when he was hired but when he moved in he found the residence lacked a functional bathroom and was full of mold, mildew and fumes from a nearby manure lagoon that posed a health threat to their children.
Allegations also state that Foster routinely referred to his employees as “lazy Mexicans” and other racial epithets. The complaint states that when non-Latinos would apply for work seeking $13-15 in wages, Foster would reply that he “has a group of ‘f***ing Mexicans’ who will do the work for $9 an hour,” in order to try to negotiate a lower wage.
On Oct. 18, 2015, workers walked off the job in protest of conditions on the farm but returned to work after they say Foster promised to provide increased salaries and compensation for all unpaid wages within 30 days. The plaintiffs say that those promises were left unfulfilled by Foster.
What’s more, the plaintiffs claim that Foster deliberately neglected to post information detailing their rights as workers and willfully failed to inform them of their options when particular instances, such as injuries, arose on the farm. The plaintiffs argue that if they had been made aware of their rights, either through signage or direct communication, they would have sought outside assistance much sooner.
In November 2017, Foster was ordered to pay $15,000 to the trustee for trustee fees and a debtor fund. He was officially removed as the debtor in possession of the farm on Oct. 30, 2017, and ordered to be off the property for good no later than Nov. 9. Virginia Burdette is the trustee in charge of the bankruptcy proceedings.
A complete liquidation of farm assets was approved by the court on Nov. 30, 2017, and the Trustee proposed selling all of the approximately 60 bulls and three hundred heifers in December.
When The Chronicle visited Southbank Dairy in mid-December, the on-site farm operator, Brandon Pike, who was hired by Shelly Crocker, said that the dairy was still milking about 500 head of cows with 13 employees. Previously, the dairy had operated with as many as 25 employees and 1,500 cows.
“The operation is still the same,” said Pike, who noted that four plaintiffs in the case are still employed at the dairy.
“Production is up since I’ve been here,” he added.
According to court documents, the remaining cows are set to be sold at auction sometime in January, “or as soon as practical,” but Pike sounds skeptical that things will move that quickly.
“This is not your typical bankruptcy. Chapter 12 bankruptcy is for farms and fishermen who are restructuring. That’s it … This is just very complicated. I inherited a complicated mess,” said Pike, who was told to prepare for a two-week stint at the farm when he first took over day-to-day operations in mid-November. “They said be ready to stay through Thanksgiving.”
Like Pettigrew, Pike has come to have a healthy respect for the contentious nature of the case unfolding in the heart of dairy country.
“There are some friendly individuals in the valley, and there’s some not so friendly folks,” said Pike.
He described Lewis County, and the Boistfort Valley in particular, as a tight-knit community with many folks lining up in support of their longtime neighbor.
One group of people who Pike has found easy to read are the dairy workers under his charge. “The staff here, I’ll tell you my personal opinion is they are just phenomenal,” said Pike.
Both Virginia Burdette and Jerry Foster declined to comment for this story due to the ongoing nature of the court cases.
However, Pettigrew, who works as a member of the Breskin, Johnson and Townsend law firm, was willing to provide greater context for the case.
“We do represent farm workers and low wage workers, generally vulnerable workers, in our practice and we have uncovered that the dairy industry for a long time has not been greatly regulated. There hasn’t been a lot of supervision for that particular industry, nor a lot of litigation,” explained Pettigrew. “It’s very dangerous work and there has been increasing worker organizing and outside scrutiny of the wellness and safety practices on dairy farms to ensure workers’ safety. That’s part of what this case is really about.”
Pettigrew added that she views herself not only as an ambassador for workers, but also for honest farmers.
“For those dairy farmers that do follow the law and the dairy farmers who are in compliance with state laws and really care about their workers, this case really benefits them too because it allows for an even playing field. If one employer can take advantage of his employees without repercussion that’s not fair to the other farmers who do follow the rules,” said Pettigrew. “It’s an area of practice that we plan to continue working in because we feel there is a great need for that advocacy.”