RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

NINA Y. WANG, Magistrate Judge.

This civil action comes before the court on Plaintiffs' Motion for Summary Judgment [#106, filed May 1, 2017]. The Motion was referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1), the Amended Order Referring Case dated August 28, 2015 [#46], and the memorandum dated May 2, 2017 [#107]. For the reasons set forth herein, this court respectfully RECOMMENDS that Plaintiffs' Motion for Summary Judgment be GRANTED IN PART and DENIED IN PART.

BACKGROUND

Plaintiffs Esmeraldo Villanueva Echon, Jr., Maribel Echon, and Justin Echon (collectively, "Plaintiffs") assert the following claims against Defendants William Sackett ("Mr. Sackett") and Leonida Sackett ("Ms. Sackett")1 (collectively "Defendants" or "the Sacketts"): (1) violation of the Fair Labor Standards Act ("FLSA"); (2) violation of the Colorado Minimum Wage of Workers; (3) violation of the Colorado Wage Claim Act; (4) Breach of Contract; (5) Breach of Contract—Third Party Beneficiary Claim; and (6) Unjust Enrichment. [#1]. Additionally, Esmeraldo Echon, Jr. ("Esmeraldo Echon")2 and Justin Echon assert a claim against the Sacketts for violation of the Trafficking Victims Protection Reauthorization Act. Plaintiffs allege that Defendants, who operate several businesses and manage a farm in Rocky Ford, Colorado, held them without pay in "debt bondage, requiring them to work on their crops and in their market, clean and maintain their rental properties, and perform various other jobs from 2011-2014." [#1 at ¶ 2]. The Sacketts, who are proceeding pro se, filed an Answer on March 18, 2015. [#11].

On April 23, 2015, the undersigned presided over a Scheduling Conference, [#16], and subsequently entered a Scheduling Order. [#17]. As discussed in previous orders, discovery in this action has been wrought with difficulties, including multiple discovery motions and conferences that resulted in attendant delays and orders compelling discovery and awarding fees. See, e.g., [#73, #90]. The final version of the Scheduling Order set April 22, 2016 as the deadline to complete discovery, and May 20, 2016 as the deadline by which to file dispositive motions. See [#55]. The Parties then embarked on discovery.

As early as August 2015, Plaintiffs alerted the court that Defendants were not responding to any discovery requests in a substantive fashion. [#23, #27]. In response, Defendants insisted, "I have given them all that I have, any employment record that he keeps wanting does not exist. There was not any employment [sic] I did not employ any of them at any time." [#31 at 2]. Defendants also asserted that they did not have employees, and had not had any employees since approximately 2012. [Id. at 3]. On August 19, 2015, Plaintiffs filed their first Motion to Compel Discovery. [#32]. The court extended the deadline for Defendants to respond to no later than September 14, 2015, and reminded Defendants that they were required to follow the same rules of procedure that bind represented parties. See [#39]. On September 11, 2015, Defendants filed a document entitled, "Discovery," which appeared to be additional responses to some or all of Plaintiffs' Requests for Production. Compare [#32-2] with [#50]. At a hearing held October 1, 2017, this court granted the first Motion to Compel Discovery and ordered Defendants to respond to Plaintiffs' Interrogatories and Requests for Production no later than October 22, 2015. See [#52]. Defendants did not file an objection to this Order to the presiding judge, the Honorable Philip A. Brimmer.

On November 30, 2015, this court held a telephonic discovery conference to discuss the status of discovery responses. See [#59]. The court again advised Defendants of their duties to follow applicable rules regarding discovery, and that failure to do so could result in sanctions, including but not limited to default judgment. See [id.]. On December 4, 2015, Plaintiffs filed a second Motion to Compel Discovery, [#60], to which Defendants filed no response. By Order dated January 27, 2016, this court granted the second Motion to Compel Discovery in part, ordering Plaintiffs to respond to Interrogatory Nos. 1 (as limited) — 5, 7-16 and Requests for Production No. 2-4, 6, 8, 10, and 11, no later than February 9, 2016. See [#62]. Counsel for Plaintiffs took the depositions of Mr. Sackett and Mrs. Sackett while the Second Motion to Compel Discovery was pending. See [#104-21, #104-22].

Plaintiffs then filed a third Motion to Compel and for Sanctions on February 23, 2016. [#64]. On March 7, 2016, Defendants filed a response, docketed as a letter. See [#68]. On May 2, 2016, this court compelled Defendants to respond to the outstanding Interrogatories in narrative form. See [#73 at 7]. This court also granted sanctions in the amount of 50 percent of the reasonable expenses associated with the third Motion to Compel, which resulted in an Order awarding $1,552.50. [Id.; #90].

The Parties' difficulties with respect to discovery culminated with Plaintiffs' fourth Motion to Compel Discovery, filed July 19, 2016, which sought a variety of sanctions including default judgment against Defendants, a request that the court designate certain matters and facts as established for the purpose of this action, and a request that the court preclude Defendants from introducing certain matters and facts at a later time in this litigation. See [#83]. On January 23, 2017, the undersigned recommended that the Motion be granted as to the court designating certain facts as established and precluding Defendants from introducing certain facts (to be determined in the context of summary judgment), and denied as to the request for default judgment. See [#91]. This court also recommended that the court set a new deadline for Plaintiffs to file a motion for summary judgment. [Id.] On February 24, 2017, Judge Brimmer accepted the recommendation and ordered Plaintiffs to file a motion for summary judgment on or before April 10, 2017. [#92]. Judge Brimmer specified that the court would address in further detail at a later date the matters to be established and precluded. [Id.] On March 23, 2017, Plaintiffs sought and received an extension of the new dispositive motion deadline. See [#94, #97]. Plaintiffs filed the instant Motion for Summary Judgment on May 1, 2017. See [#106]. Defendants filed a Response on May 15, 2017, [#110], and Plaintiffs filed a Reply on May 24, 2017. [#111]. On June 6, 2017, Defendants filed what appears to be a surreply. [#112].3 The Motion for Summary Judgment is thus ripe for disposition, and the undersigned finds that oral argument would not materially assist in the resolution of this matter.

LEGAL STANDARD

A party may be entitled to summary judgment prior to trial if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Henderson v. Inter-Chem Coal Co., Inc., 41 F.3d 567, 569 (10th Cir. 1994). "A `judge's function' at summary judgment is not `to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.'" Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 249 (1986)). Whether there is a genuine dispute as to a material fact depends upon whether the evidence presents a sufficient disagreement to require submission to a jury or conversely, is so one-sided that one party must prevail as a matter of law. Anderson, 477 U.S. at 248-49; Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1136 (10th Cir. 2000); Carey v. U.S. Postal Service, 812 F.2d 621, 623 (10th Cir. 1987). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no `genuine issue for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing First Nat. Bank of Ariz. v. Cities Service Com, 391 U.S. 253, 289 (1968)).

In reviewing a motion for summary judgment the court views all evidence in the light most favorable to the non-moving party. See Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1213 (10th Cir. 2002). Where, as here, the moving parties will bear the burden of proof on an issue at trial, they must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. See Celotex Corp., 477 U.S. at 323. Once the moving party meets its initial burden, the non-moving party must go beyond the pleadings and, by its own affidavits or discovery, "set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). The non-movant "may not rest upon mere allegation or denials of [the] pleadings, but must set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256. Conclusory statements based merely on speculation, conjecture, or subjective belief are not competent summary judgment evidence. Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th Cir. 2004). The nonmoving party's evidence must be more than "mere reargument of [its] case or a denial of an opponent's allegation," or it will be disregarded. See 10B Charles Alan Wright, et al., Federal Practice and Procedure § 2738 at 356 (3d ed.1998). However, even where a non-moving party fails to respond to a motion for summary judgment, a court cannot automatically grant summary judgment in favor of the moving party. See Issa v. Comp USA, 354 F.3d 1174, 1177 (10th Cir. 1993). Rather, the court may enter summary judgment only if Plaintiffs carry their burden under Rule 56 of the Federal Rules of Civil Procedure and demonstrate that no genuine issue of material fact exists and they are entitled to judgment as a matter of law. See Reed v. Bennett, 312 F.3d 1190, 1194-95 (10th Cir. 2002).

The Tenth Circuit has observed that the rights of pro se litigants require "careful protection where highly technical requirements are involved . . ." Jaxon v. Circle K Corp., 773 F.2d 1138, 1140 (10th Cir. 1985) (quoting Garaux v. Pulley, 739 F.2d 437, 439 (9th Cir. 1984)). With this guidance, the court reads Defendants' Response to the Motion for Summary Judgment with a liberal construction in mind; however, the court cannot, and will not, act as Defendants' counsel in this matter. The court will not craft arguments on behalf of Defendants, or "peruse the record . . . in search of evidence" not readily accessible, Securities and Exch. Comm'n v. Capital Hldgs., L.L.C., No. 03-CV-00923-REB-CBS, 2006 WL 1660541, at *1 (D. Colo. June 12, 2006); but this court will consider the totality of admissible evidence, including but not limited to the depositions of the Sacketts and their minor child (the transcripts of which Plaintiffs submitted along with their Motion), in evaluating whether summary judgment is appropriate. Indeed, Rule 56 explicitly provides that the court may consider "other materials" in the record in adjudicating a motion for summary judgment. Fed. R. Civ. P. 56(c)(3). See Pipkins v. Taillon, No. 12-CV-02275-REB-KLM, 2014 WL 4197945, at *4 (D. Colo. Aug. 25, 2014).

Additionally, the court will not consider unverified statements not admitted to by the opposing party. See Lopez-Bignotte v. Ontivero, 42 F. App'x 404, 408 (10th Cir. 2002) (affirming grant of summary judgment where non-moving party did not file affidavits or submit other admissible evidence to refute the affidavits filed by moving party in support of motion for summary judgment). The Sacketts did not refer to evidence in their Response or surreply, or attach evidence thereto. [#110, #112]. The Response itself is styled as a "declaration," and concludes with each Defendant's signature and the date but is not sworn under the penalty of perjury. See [#110]. Similarly, the surreply contains entirely unsworn testimony, some of which appears to take issue with other sworn testimony. [#112]. The Response and surreply do not comply with 28 U.S.C. § 1746, and thus do not constitute evidence that can create factual disputes for the purpose of precluding summary judgment. See Dodson v. Board of County Com'rs, 878 F.Supp.2d 1227, 1244 n.4 (D. Colo. 2012). See also Hayes v. Marriott, 70 F.3d 1144, 1148 (10th Cir. 1995) ("Unsworn affidavits do not raise factual issues precluding summary judgment") (citation omitted); Henderson v. Inter-Chem Coal Co., 41 F.3d 567, 569 n.1 (10th Cir. 1994) (noting that unsworn affidavits may be used in summary judgment proceedings, but only if they comply with the requirements of 28 U.S.C. § 1746 and are signed under penalty of perjury). In addition, as discussed below, to the extent that Defendants are now attempting to provide information that should have previously been disclosed in response to the Interrogatories and were not reflected in their sworn deposition testimony, they will not be permitted to do so.

MATERIAL FACTS

Framework

Plaintiffs ask that the court deem as established the facts in Plaintiffs' Statement of Undisputed Material Facts "that correspond to Defendants' failure to respond to Plaintiffs' interrogatories," which Plaintiffs cite as Undisputed Material Facts: 1-3, 11-13, 15, 23-25, 28-29, 31-39, 42, 45-46, 59. [#104 at 4]. Plaintiffs state that these facts fall into five categories: "(1) Defendants' employment and nonpayment of Plaintiffs, (2) Defendants' operation of their businesses, (3) Defendants' business dollar volume and inclusion in the `Retail and Service' industry, (4) Defendants' limited financial support of Plaintiffs, (5) Defendants' expectation that Plaintiffs work off their `debt' by working without pay." [Id.] The court agreed with Plaintiffs in a previous order that Defendants should be precluded from (1) offering evidence that was not disclosed in discovery; (2) contradicting testimony provided during their depositions; and (3) relying on uncorroborated statements so as to contradict Plaintiffs' asserted factual allegations, where only Defendants (rather than Plaintiffs) have access to such information. See [#91 at 16, #104]. As explained in more detail below, given the record before it, the court cannot deem all of these facts as uncontested.

First, in light of Defendants' sworn and consistent testimony at deposition that they did not employ Plaintiffs and that Plaintiffs performed no work for them, this court cannot accept the proposed undisputed facts that relate to the duration and type of work performed by Plaintiffs. For instance, the proffered undisputed fact in ¶ 23 contends:

[#104 at 6, ¶ 23]. For the same reasons, the court cannot deem as true the statement that "Justin Echon worked in Defendants' fields, on construction projects, and on other miscellaneous or domestic work for about nine hours each day for six days each week." [Id. at ¶ 34]. Nor can the court deem as true the statement that "Defendants required Maribel Echon to work for Defendants, by caring for Leonida Sackett and Esmeraldo Echon's mother, Conchita Echon." [Id. at ¶ 36]. Indeed, these statements appear to be contradicted by third party evidence in the record. For instance, Isidro Fierro testified during his deposition regarding Plaintiffs that, "[t]hey — they will — I will see them walking, but never saw them working, but they're supposed to work, I don't know." [#104-28 at 15:9-11].4 Similarly, the Sacketts' minor child testified during her deposition that Plaintiffs never worked in the market or in the fields, and never took care of Mrs. Conchita Echon. See [#104-29]. This court finds no basis for depriving Defendants the ability to testify consistently with the position they have always asserted, i.e., they did not employ Plaintiffs or otherwise cause Plaintiffs to perform work for them. However, having unequivocally denied that Plaintiffs ever performed any work of any sort for them, Defendants cannot temper their testimony at trial by suggesting that Plaintiffs may have undertaken "some work," or that they paid Plaintiffs for "any work" Plaintiffs may have performed. See [#104 at 19].5 Similarly, Mrs. Sackett testified unequivocally at her deposition that she and her husband provided "enough food" to Plaintiffs and that they provided food four times a month. See [#104-22 at 151:9-17]. Accordingly, the court cannot deem as admitted the statement that "Defendants failed to provide sufficient food to Plaintiffs, leaving them hungry." [#104 at ¶ 45].

However, the court will deem admitted other facts that Plaintiffs propose are undisputed as a result of Defendants' failure to appropriately respond to certain Interrogatories. For instance, this court will accept as true that Defendants paid no more than $300 per month for utilities for Plaintiffs' housing in Rocky Ford, in light of Defendants' failure to respond to Interrogatory No. 8 regarding financial support provided to Plaintiffs and Jeffrey Echon. See [#104 at ¶ 12]. This court will also accept as true that Defendants did not pay Esmeraldo or Maribel Echon for any work and gave them money only a few times and after they had begged. See [id. at ¶ 25]. Likewise, the court will accept as true the fact that Defendants occasionally paid Justin Echon a small amount for work, and never paid Maribel Echon for work. [Id. at ¶¶ 33, 38]. The court will also accept facts establishing that Plaintiffs depended on Defendants for food and lodging. [Id. at ¶¶ 42]. And, in light of Defendants' failure to respond to Interrogatory No. 3, the court will accept as true that Mr. Sackett was aware that his wife did not pay Plaintiffs for any work. [Id. at ¶ 39].

Finally, some of the facts Plaintiffs propose as undisputed as a result of Defendants' failure to respond are too attenuated to the associated Interrogatories, because the fact offered as undisputed is not actually responsive to the particular Interrogatory. For example, Plaintiffs ask to establish as true that when they "asked Defendants for help finding a paying job, Defendants refused." For support they cite Maribel Echon's declaration and Defendants' failure to respond to Interrogatory No. 8. However, Interrogatory No. 8 asks Defendants to "list all times you financially supported any of the Plaintiffs or Jeffrey Echon," and cannot fairly be read to inquire into how or if Defendants responded to Plaintiffs' request for help finding a paying job. Similarly, Defendants' failure to respond to Interrogatory Nos. 6, 7, 15, and 16 does not correlate to establishing as true the statement that "Leonida Sackett told Plaintiffs that they needed to work off their debt for the costs Defendants had incurred for bringing Plaintiffs to the United States [sic] She never specified the amount they owed or a timeframe for paying it off." [#104 at ¶ 13]. This court is even more reluctant to deem such a fact admitted in light of Mrs. Sackett's unequivocal denial that she ever threatened Plaintiffs. See [#104-22 at 162:13-14]. The facts as discerned by this court, both undisputed and disputed, are set forth in detail below.

Undisputed Material Facts

In applying the framework as set forth above, the court concludes that the following facts are undisputed. Defendants own and operate a farm and retail produce market known as "Sackett's Farm Market," and own several residential rental properties in Rocky Ford, Colorado. [#1 at ¶¶ 10, 12, #11 at ¶¶ 10, 12]. Defendants earned more than 50 percent of their annual dollar volume of business from sales to the public transacted through their market. [#1 at ¶ 11, #11 at ¶ 11, #104-21 at 22:10-14, 75:2-20, 126:13-17]. Defendants are in charge of the day to day operation of their businesses, including supervision of the work. [#104-21 at 99:18-19, 175:21-176:2, #104-22 at 54:13-15, 56:9-14, 62:6-8, 177:9-11].

Defendant Leonida Sackett is a U.S. Citizen. [#1 at ¶ 20, #11 at ¶ 20]. Esmeraldo Echon is Mrs. Sackett's brother, and Plaintiff Maribel Echon is married to Esmeraldo Echon. Mrs. Sackett petitioned the U.S. Citizen and Immigration Services (USCIS) to obtain legal permanent residency status for Plaintiffs. [#1 at ¶ 23, #11 at ¶ 23]. Defendants signed USCIS Form I-864 Affidavit of Support as the sponsors of Plaintiffs. [#104-6]. Plaintiffs were approved as U.S. Legal Permanent Residents and traveled to the United States to live. [#104-18 at ¶¶ 5, 7, 16, #104-19 at ¶ 7]. Esmeraldo Echon moved to Rocky Ford, Colorado from the Philippines in September 2011. [#104-18 at ¶ 5, #104-19 at ¶ 6]. In April 2012, Maribel Echon moved to Rocky Ford with three of their sons, Plaintiff Justin Echon, Jeffrey (who is not a party to this action), and a minor son. [#104-18 at ¶ 6, #104-19 at ¶¶ 5, 7]. Plaintiffs lived in one of the rental houses owned by the Sacketts until mid-September 2014. [#104-18 at ¶¶ 19, 122, #104-19 at ¶¶ 13, 62]. At all times relevant to this, case the rental value of the housing Defendants provided to Plaintiffs was no more than $750 per month. [#51 at ¶ 24].6 The Sacketts supplied Plaintiffs with food valued at $12,500, or less. [Id. at ¶ 25]. The Sacketts provided for transportation for Justin Echon and Plaintiffs' minor son to and from school, valued at approximately $1,600. [Id. at ¶ 30]. To the extent a jury finds that Esmeraldo and Maribel Echon performed work for the Sacketts, the Sacketts did not pay for their work and only gave them money a few times after the Echons had begged, [#104-18 at ¶¶ 21, 59, 67, 78, #104-19 at ¶¶ 16-17, #104-24 at ¶ 20], and William Sackett was aware that his wife did not pay Plaintiffs for their work. [#104-18 at ¶ 113, #104-20 at ¶ 23]. Similarly, to the extent a jury finds that Justin Echon performed work for the Sacketts, William Sackett paid Justin Echon only occasionally, and only a small sum for his work. [#104-20 at ¶¶ 20-21, 26, 35-36, #104-18 at ¶¶ 21, 23, 67, #104-15].

Plaintiffs spoke very little English when they arrived in the United States and still are not fluent in English. [#104-18 at ¶ 15, #104-19 at ¶ 10]. Defendants kept Maribel and Justin Echon's residency and Social Security cards from Plaintiffs for over a year. [#104-18 at ¶¶ 41, 42]. In January 2013, Esmeraldo Echon suffered from complications with his kidneys. [#104-18 at ¶¶ 79-80]. Plaintiffs depended on Defendants for food and lodging. [#104-18 at ¶ 30, #104-20 at ¶ 9]. Justin Echon and his minor brother attended school in Rocky Ford. The Sacketts rarely bought clothing or shoes for Plaintiffs, or school supplies for Esmeraldo and Maribel's school-age children. [#104-19 at ¶ 51, #104-25 at ¶ 11].

In the fall of 2013, Plaintiffs applied for food stamps with Otero County, Colorado. They ultimately received food stamps for their minor son, and by summer of 2014 were receiving $189 per month. [#104-18 at ¶ 120, #104-19 at ¶ 60, #104-20 at ¶ 36, #104-24 at ¶ 24, #104-3 at 8-9]. Plaintiffs received food and clothes from service providers, a Presbyterian Church, the food bank, and the Salvation Army. [#104-18 at ¶¶ 83-84, #104-19 at ¶ 53, #104-25 at ¶¶ 5, 9, 11, #104-23 at ¶ 4, #104-24 at ¶ 23].

In June 2014, Plaintiffs sought assistance from Colorado Legal Services to help them leave the Sacketts. [#104-18 at ¶¶ 98, 108, #104-19 at ¶ 54]. Around this time, Esmeraldo and Maribel Echon started working at odd jobs for Rocky Ford resident Phyllis Adkins, who would provide transportation for them to and from her home. [#104-18 at ¶ 121, #104-19 at ¶ 61, #104-25 at ¶ 13, #104-23 at ¶ 7]. Plaintiffs left Rocky Ford in September of 2014. [#104-19 at ¶ 54, #104-25 at ¶ 16]. Since their departure, they have not received any money or support from the Sacketts. [#104-18 at ¶ 122, #104-19 at ¶ 62, #104-20 at ¶ 37]. In October 2014, Plaintiffs earned about $250 working at a cell-phone company. [#104-18 at ¶ 123, #104-19 at ¶ 62, #104-20 at ¶ 38].7 After the job with the cell phone company, Plaintiffs were not able to find stable employment until January 2015. [#104-18 at ¶ 124, #104-19 at ¶ 63]. Since January 2015, Esmeraldo and Maribel Echon have been employed full time. [#104-18 at ¶ 124, #104-19 at ¶ 64].

Disputed Material Facts

The Sacketts did not provide a statement of undisputed material facts, or challenge the statement of undisputed material facts presented by Plaintiffs. Nonetheless, the record contains evidence, provided by Plaintiffs, that gives rise to genuine and material disputes of fact. That evidence is as follows.8 William Sackett testified at his deposition that he manages the farm and supervises those who work on his farm. [#104-21 at 99:18-19, 111:21-22]. He testified that none of Leonida Sackett's family members worked on the Sacketts' farm:

[#104-21 at 102:2-22]. In response to follow-up questions, Mr. Sackett testified that Plaintiffs undertook no "custom work," and while they "may have did something on the — not on the farm, something on the property I own," they were "never employed or never asked to do anything, not of an employment nature." [Id. at 103:2-9]. He also testified that Plaintiffs were "never, ever asked to do any work or ever employed to do any work," and that they "never did no work they was not paid for [and] [t]hey never did any work that they was paid for because they never did no work that was employed." [Id. at 105:12-25]. Plaintiffs' counsel asked Mr. Sackett, "did [Plaintiffs] perform any activity related to work, whether it was paid or unpaid, whether it was related to employment or not?," to which Mr. Sackett responded, "I'm going to tell you, no." [Id. at 107:13-17]. Plaintiffs' counsel also asked Mr. Sackett about whether he ever saw Plaintiffs performing work of any kind on the Sacketts' property:

[Id. at 110:3-9]. Mr. Sackett testified that his minor daughter, by contrast, works on the farm: "Q: What type of work does she do . . . A: Oh, heck, just whatever there is to do; feed the horse . . . I mean, what can't she do. She can . . . the gal can do anything that I ask her to do. I ask her to drive a tractor, plant and plow and disk and — she can do it." [#104-21 at 99:29-100:5]. Mr. Sackett testified that his daughter has been working on the farm since she was approximately eight years old and that she is not paid. [Id. at 100:18-24 ("Well, she's 18. So she's been working with me for probably 10 years. And she don't get paid.")]. In response to questions regarding how many hours a day Mr. Sackett's daughter works, he testified:

[Id. at 100:25-101:17].

During her deposition, Leonida Sackett testified that Esmeraldo Echon did not work around the Sacketts' property. He did not clean the yard, help with maintenance, care for Conchita Echon (Mrs. Sackett and Esmeraldo Echon's mother), work at the Sacketts' market, or work on the Sacketts' farm. [#104-22 at 157:12-158-25, 159:10-23]. Leonida Sackett testified that Maribel Echon did nothing to contribute around the Sacketts' property, and that she generally stayed home and took care of her children. [Id. at 159:24-160:4]. Mrs. Sackett testified that Maribel Echon did not care for Conchita Echon, "[n]ot one thing." [Id. at 161:16-22, 180:15-17]. Mrs. Sackett also testified that she was not abusive to Esmeraldo or Maribel Echon, and rather, Maribel was verbally abusive to her. See, e.g., [id. at 168:9-23, 218:11-21]. She also testified that Plaintiffs were dependent on her for food and health care, but that they had access at all times to a vehicle and Esmeraldo could drive. [Id. at 220:17-221:17, 223:3]. Mrs. Sackett testified that Plaintiffs did not feel that they owed her a debt, did not feel obligated to help around the property, and did not worry that she would withhold food or care. [Id. at 223:4-21]. She further testified she never threatened to have Esmeraldo or Maribel deported. [Id. at 214:17-215:4]. Rather, she encouraged them to learn English, attend school, and find employment. [Id. at 219:17-220:1, 224:4, 224:24-225:5-8].

Mrs. Sackett also testified that she remembered when Plaintiffs moved from Rocky Ford to Manzanola, Colorado, and testified, in response to questioning about what she thought about Plaintiffs working in Manzanola, that she "love[d] it . . . when they went to work." [#104-22 at 227:5-11]. She testified that Esmeraldo and Maribel wanted her to care for the children while they lived and worked in Manzanola, [id. at 227:12-228:25], and that she warned Esmeraldo and Maribel Echon when they left Rocky Ford that "they might get in trouble for leaving [their] kids at home." [Id. at 232:6-233:18]. Mrs. Sackett testified that Esmeraldo and Maribel chose to return to Rocky Ford because they could not afford to pay for their apartment in Manzanola. [Id. at 230:1-5]. She testified that she gave Esmeraldo Echon $3,500 during the first year he lived in Rocky Ford to satisfy a mortgage on land in the Philippines; she otherwise did not give him or the other Plaintiffs money during their stay. [Id. at 266:10-17].

In light of the Sacketts' testimony, the court finds that the following testimony given by Plaintiffs, and identified in the Motion for Summary Judgment as undisputed, is in fact disputed. Esmeraldo Echon attests that Defendants required him to perform a variety of jobs for them from September 2011 through September of 2014. He worked on their rental properties—cleaning, making repairs, doing yard work, and painting. He also worked in Defendants' fields, greenhouse, market, and at their home, including building a garage and concrete wall fence, and flooring a warehouse. He generally worked ten hours per day, six days per week. [#104-18 at ¶¶ 51-53, 56-58, 64-65, 68-69, 71-74, 82, 90, 92, 93, 95, 97, 109, #104-24 at ¶¶ 6-16]. He attests that Leonida Sackett primarily directed him in the work he performed, but that William Sackett ordered work done as well on several occasions, and William Sackett was aware of all the work Esmeraldo Echon performed for them. [#104-18 at ¶ 111]. Except for a one week period in 2012, Leonida Sackett did not allow Esmeraldo Echon to work anywhere else. [#104-18 at ¶¶ 29, 36]. In the fall and winter of 2012, the Sacketts "lent" Esmeraldo and Jeffrey Echon to their friends in Rocky Ford for two or three months to construct a warehouse. Esmeraldo and Jeffrey Echon worked eight hours each day for six days each week during this time. [#104-18 at ¶¶ 72-76]. Esmeraldo Echon is "sure" that the friends paid the Sacketts for the labor, but he and his son did not receive payment. [Id. at ¶¶ 77-78]. Leonida Sackett told Plaintiffs not to talk about their living and working conditions. She told Esmeraldo Echon to lie and say he and his family were just helping out, and she attempted to prevent him from talking to anyone. [#104-18 at ¶¶ 48-50].

Justin Echon attests that he attended high school between August 2012 and May 2013 and August 2013 and May 2014, but worked at least one day a week for the Sacketts, and also every day during summers and school holidays. [#104-20 at ¶¶ 11-14, 16-19, 24, 27-28]. He attests that William Sackett assigned work to him. [#104-20 at ¶ 22]. Justin Echon attests that he worked in Defendants' fields, on construction projects, and on other miscellaneous or domestic work jobs for about nine hours each day for six days each week. [#104-20 at ¶¶ 11, 13, 17, 25]. And he attests that during the 2012-2013 and 2013-2014 school years, he worked one day every week, usually Saturdays, for nine hours and usually in the fields. [Id. at ¶¶ 16-18, 24, 27, 29].

Maribel Echon attests that the Sacketts required her to work on their farm, and at their market, rental properties, and home for about six hours per day, three days per week. [#104-19 at ¶¶ 33-34, #104-24 at ¶¶ 17-19]. Between April 2012 and September 2014, the Sacketts required Maribel Echon to work for them by caring for Conchita Echon. [#104-19 at ¶¶ 19, 21, #104-24 at ¶¶ 17-19, #104-4 at 3-8]. She attests that Defendants never paid her for any of her work, [#104-18 at ¶¶ 21, 23, 67, #104-19 at ¶¶ 17, 27, 38, 52].

Plaintiffs attest that Leonida Sackett told them they needed to work off their debt for the costs Defendants had incurred for bringing Plaintiffs to the United States. Leonida Sackett never specified the amount Plaintiffs owed or a timeframe for paying off the debt. [#104-18 at ¶¶ 25-27, 31-33, 40, #104-19 at ¶ 35]. Plaintiffs did not want to work without pay and told Leonida Sackett they wanted to find paying jobs. [#104-18 at ¶¶ 28, 34, 35, #104-19 at ¶ 35]. When Plaintiffs asked Defendants for help finding a paying job, Defendants refused. [#104-18 at ¶¶ 34-36]. Defendants coerced Plaintiffs into working for them for no pay by threatening to deport Plaintiffs and through verbal abuse. [#104-18 at ¶¶ 20-22, 37-39, 44, #104-19 at ¶¶ 14, 15, 18, #104-20 at ¶ 10, #104-24 at ¶ 27]. Leonida Sackett threatened to deport Plaintiffs on multiple occasions, [#104-18 at ¶ 44, #104-19 at ¶ 37, #104-20 at ¶ 10], and Plaintiffs believed Leonida Sackett could have their family deported because she sponsored their applications for legal permanent residency. [#104-18 at ¶ 45, #104-19 at ¶¶ 35-37, #104-20 at ¶ 10, #104-23 at ¶ 11]. Finally, Plaintiffs attest that the Sacketts failed to provide them with sufficient food. [#104-18 at ¶¶ 60-63, #104-25 at ¶ 9, #104-23 at ¶¶ 4, 7, #104-24 at ¶¶ 22-23].

Plaintiffs attest that in April 2013, a workforce organization in Rocky Ford tried to help them leave their situation with the Sacketts and move to Manzanola, Colorado. Leonida Sackett would not allow Esmeraldo and Maribel Echon's younger sons to leave, and Plaintiffs "had no means to bring them to Manzanola to live with [them]," or to find work. Plaintiffs returned to Rocky Ford after approximately one month. [#104-18 at ¶¶ 86-89, #104-19 at ¶¶ 41-42]. Plaintiffs lived in fear of Defendants, and felt they had no choice but to work for Defendants. [#104-18 at ¶¶ 31, 47, #104-19 at ¶ 36, #104-20 at ¶¶ 9-10]. Plaintiffs felt trapped and hoped someone would help them escape from their situation with Defendants. [#104-18 at ¶ 85]. Plaintiffs suffered emotionally and suffered from loss of sleep and depression as a result of Defendants' verbal abuse and threats. [#104-18 at ¶ 114, #104-19 at ¶ 55, #104-20 at ¶¶ 31-32].

ANALYSIS

Plaintiffs allege that over the course of three years, the Sacketts systematically coerced and threatened them into working without pay. The Sacketts dispute the allegation generally, and contend that they paid for Plaintiffs to leave the Philippines, and provided for Plaintiffs in Rocky Ford, strictly as acts of beneficence.

I. Statutory Claims9

A. Claim One: Liability Under Trafficking Victims Protection Reauthorization Act, 18 U.S.C. § 1589, asserted by Esmeraldo Echon and Justin Echon

1. Applicable Law

The forced labor provision of the Trafficking Victims Protection Act of 2000 ("TVPA"), as amended by the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 ("TVPRA"), governs forced labor, and identifies as a criminal defendant one who:

18 U.S.C. § 1589(a). In addition, liability lies for anyone who "knowingly benefits, financially or by receiving anything of value, from participation in a venture which has engaged in the providing or obtaining of labor or services by any of the means described in subsection (a), knowing or in reckless disregard of the fact that the venture has engaged in the providing or obtaining of labor or services by any of such means." Id. at § 1589(b). The TVPRA contains a civil remedy provision that establishes a private cause of action against one who violates the statute:

Id. at 1595(a). See also Mojsilovic v. Oklahoma ex rel. Board of Regents for University of Oklahoma, 841 F.3d 1129, 1130 (10th Cir. 2016) (noting the TVPRA "provides a civil remedy for victims of forced labor"). Section 1589 defines "abused or threatened abuse of law or legal process," as:

18 U.S.C. § 1589(c)(1). The term "serious harm" is defined as:

Id. at § 1589(c)(2).

Esmeraldo and Justin Echon argue that the Sacketts are liable under this claim for serious harm or threats of serious harm, abuse or threatened abuse of law or legal process, or for a scheme, plan, or pattern that was intended to cause Plaintiffs to believe they would suffer serious harm if they did not perform the labor. See [#104 at 13-14]. See also 18 U.S.C. § 1589(a)(2)-(4).

2. Evidence

Esmeraldo Echon. Esmeraldo Echon attests as follows. "As soon as I arrived in Colorado, Nida informed me that I owed her a large amount of money. She said this was for the support she had given me in the Philippines and for the cost of obtaining my legal immigration status." "Nida told me that I was only in the United States because she sponsored me and that I needed to repay her for that debt. Before this, she never said that I had to pay her for sponsoring me, or for buying me a plane ticket to the US." "Nida told me that I had to work this debt off by providing her and Bill with free labor." [#104-18 at ¶¶ 25-27]. When Esmeraldo Echon's wife and three sons "arrived in the U.S. in 2012, Nida informed them that they owed her a large debt and they needed to work it off by providing free labor to her and Bill." [Id. at ¶ 40]. "Shortly after Maribel and our sons arrived in the US, their residency documents and Social Security cards arrived at the Sacketts' home," and the Sacketts "kept these important documents for over a year without giving them to, me, Maribel or my sons." [Id. at ¶¶ 41-42]. Esmeraldo Echon and his family's native language is Ilocano and their second language is Tagalog. He is learning English, but is not fluent. [Id. at ¶ 15].

Esmeraldo Echon also attests:

[Id. at ¶¶ 20-21].

[Id. at ¶¶ 31-33].

Additionally, "Nida and Bill told us we had to work for them; they said if we did not, they would have us deported from the United States or kicked out of their house. Nida also verbally abused us and threatened us. She would get mad and threaten us. She would swear at me, and argue with us." [Id. at ¶ 23]. "Nida would regularly threaten me with deportation if I did not do what she told me to do"; "Nida exploited my feelings of obligation toward her for bringing me and my family here"; "Nida would repeat those feelings of obligation to coerce me to continue working for her and Bill without pay"; and "Nida regularly threatened to deport us if we did not do the work she wanted us to do or if we were not working to her liking." [Id. at ¶¶ 37-39, 44]. "I did not know any differently; I thought that Nida could have me and my family deported since she was the sponsor for our legal permanent residency in the US." [Id. at ¶ 45]. "[T]here were times that I would come home from working, and I would see Maribel and my sons crying because Nida had been to the house, and had been mean to them. She verbally abused them. She said terrible things to them." [Id. at ¶ 106]. "Since the Sacketts began verbally abusing and threatening me, I have suffered emotionally, including losing sleep and being depression [sic]." [Id. at ¶ 114]. "I did not want to work for them without pay. I wanted to find a job where I could earn a wage so that I could help build a life for myself and my family in the United States." [Id. at ¶ 28]. "On many occasions, I told Nida that I wanted to find a paying job. When I would say this, Nida would tell me that I still owed her a lot of money and I needed to keep working it off." [Id. at ¶¶ 34-35]. "I felt that I had no choice but to work for Nida and Bill, just as they insisted." [Id. at ¶ 31]. "I was forced to depend on Nida and Bill for food, lodging, transportation, and communication with others." [Id. at ¶ 30]. Finally:

[Id. at ¶¶ 48-50].

In April 2013, a workforce organization in Rocky Ford tried to help Plaintiffs to leave their situation with the Sacketts and move to Manzanola, Colorado. Leonida Sackett would not allow Esmeraldo and Maribel Echon's younger sons to leave, and Plaintiffs "had no means to bring them to Manzanola to live with [them]," or to find work. Plaintiffs returned to Rocky Ford after approximately one month. [#104-18 at ¶¶ 86-89] see also [#104-19 at ¶¶ 41-42].

Maribel Echon.

Maribel Echon attests as follows. "For a little more than two years, from about April 2012 to June 2014, Nida and Bill forced me and my two older sons to work in their fields, at their farm market, to clean and maintain their rental properties, and perform various other jobs. My husband had to do this work also, and he was in the US for about a year before the rest of us arrived." [#104-19 at ¶¶ 14-15]. "Nida and Bill told my family and me that we had to work for them. They said if we didn't, they would have us deported from the United States, or they would kick us out of their house. Leonida also verbally abused and threatened us. She called us mean names, ordered us around, and swore at us on many occasions." [Id. at ¶ 18]. "Nida would often threaten me that she was going to call the police or the immigration authorities if I did something not to her liking." [Id. at ¶ 37]. "Since Nida began verbally abusing and threatening me, I have suffered emotionally, including but not limited to loss of sleep and feelings of depression and hopelessness." [Id. at ¶ 55]. "I did not want to perform any of these tasks without pay; however, Nida would force me to do this work by verbally insulting me and telling me that I was obligated to do so because of all the assistance she had provided to me, my husband, and my sons in the Philippines and in Colorado." [Id. at ¶ 35]. And, "[w]henever we asked for help in finding a paying job, such as help with transportation, Nida or Bill refused to provide any help and continued to force us to work for them without pay." [Id. at ¶ 40]. "I felt that I had no other option than to follow Nida's orders." [Id. at ¶ 36]. Maribel Echon is learning English but is not fluent. [Id. at ¶ 10].

Justin Echon.

Justin Echon attests as follows. He believed that he, his parents, and his brothers "would suffer serious harm if I did not do the work my aunt and uncle told me to do. My Aunt and Uncle told us they would deport us if we did not do the work they told us to do; I did not know better, and believed that they could deport us, so I felt I had no choice but to work for my aunt and uncle." [#104-20 at ¶ 10]. "It was upsetting to see my mother and father be treated the way they were by my Aunt Nida and Uncle Bill. I did not like how my aunt and uncle cursed at my parents. I also did not like how they never gave us much food, or let my Mother and Father work anywhere else." [Id. at ¶ 31]. "I could see that my parents were completely dependent on my aunt and uncle for support and I believed that I had no other choice but to do the work my Aunt Nida made me do." [Id. at ¶ 9]. "Since Nida began verbally abusing and threatening me, I suffered emotionally including loss of sleep and feelings of depression and hopelessness." [Id. at ¶ 32].

Nonparties.

A friend of Plaintiffs, Albert Hall, provided a declaration in support of Plaintiffs' Motion for Summary Judgment. [#104-24]. Some of Mr. Hall's statements are admissible, and will be considered by the court. For instance, Mr. Hall attests:

[Id. at ¶ 6]. Mr. Hall further attests that "I saw Junior working for Defendants on many occasions. I saw him at the Sacketts' produce stand several times, during the late spring and summer months, when the produce stand was open." [Id. at ¶ 7]. The court considers these statements to be admissible evidence. However, other statements offered by Mr. Hall are not admissible, such as:

[#104-24 at ¶ 27]. See F.R.E. 801(c). These statements are inadmissible hearsay that cannot be considered at summary judgment. See Argo v. Blue Cross & Blue Shield of Kansas, Inc., 452 F.3d 1193, 1199 (10th Cir. 2006) ("[S]ummary judgment courts should disregard inadmissible hearsay statements contained in affidavits, as those statements could not be presented at trial in any form.")

Another friend of Plaintiffs and resident of Otero County, Colorado, Phyllis Adkins, attests that, from her experience and observations, "the Echons are a very nice family and hard workers. There was a time when many church members were involved at just helping them survive. They were in a very difficult situation. They were scared to death that Leonida was going to send them back to the Philippines." [#104-23 at ¶ 11]. She also attests:

[Id. at ¶ 10]. These statements are admissible.

Finally, Frances Miller, a resident of Otero County and secretary of the Community Presbyterian Church in Rocky Ford, attests that she met Emeraldo and Maribel Echon in 2014 when they approached the food bank at her church. [#104-25 at ¶ 5]. Ms. Miller attests that "Maribel also told me that they were only given one roll of toilet paper for the entire family to use, and very little soap." [Id. at ¶ 10]. This statement is inadmissible hearsay and is not considered by the court. Additionally, the court will not admit Ms. Miller's statements that "Junior and Maribel came to the food pantry at the Church because they said they needed some food. Maribel said that Nida was not giving them enough food," [id. at ¶ 7]; "Maribel told me that Nida only gave them a bag of rice and one chicken each month and it just was not enough to feed all of them who were living together, [id. at ¶ 8]; and "Junior told me that he had built a fence at Nida's house, and that he was not paid for the work he did, [id. at ¶ 14]. These attestations constitute out of court statements offered for the truth of the matter asserted, and Plaintiffs do not suggest that an exception applies. However, the court will admit Ms. Miller's statement that she and "other Church members. . .got together a big supply of paper products like toilet paper, paper towels, soap and laundry detergent and gave it all to the Echon family." [Id. at ¶ 10].

3. Application

There is limited case law from the Tenth Circuit discussing the types of acts and conduct that qualify as means of serious harm or abuse of law or legal process for purposes of TVPRA liability. Therefore, the court considers cases from other jurisdictions that have encountered the question.

Muchira v. Al-Rawaf, 850 F.3d 605, 618-19 (4th Cir. 2017) (quoting United States v. Callahan, 801 F.3d 606, 619 (6th Cir. 2015) and collecting cases) (internal quotation marks and citation omitted)). Courts have found that "serious harm" includes "threats of any consequences, whether physical or non-physical, that are sufficient under all of the surrounding circumstances to compel or coerce a reasonable person in the same situation to provide or to continue providing labor or services." Shukla v. Sharma, No. 07-CV-2972, 2012 WL 481796, at *2 (E.D.N.Y. Feb. 14, 2012) (quoting United States v. Bradley, 390 F.3d 145, 151 (1st Cir. 2004), vacated on sentencing grounds, 545 U.S. 1101, 125 S.Ct. 2543, 162 L.Ed.2d 271 (2005)). The Shukla court relied on law from the Second, Eighth, and Ninth Circuits to determine that a worker's "employment and living conditions" may provide support for finding that a defendant's threats "plausibly . . . compelled the victim[ ] to serve." Id. (quoting United States v. Farrell, 563 F.3d 364, 373 (8th Cir. 2009) and citing United States v. Veerapol, 312 F.3d 1128, 1130-21 (9th Cir. 2002) (considering working conditions, including "excessive working hours," in analyzing involuntary servitude claim); United States v. Sabhnani, 539 F.Supp.2d 617, 620 (2d Cir. 2010) (affirming forced labor convictions where victims, who did not speak English and did not know how to drive or use a telephone, were, among other things, brought into the United States illegally, physically abused, forced to sleep on the floor, dressed in rags, provided inadequate food, and threatened with arrest). See also United States v. Calimlim, 538 F.3d 706, 713 (7th Cir. 2008) (affirming forced labor conviction of defendants who kept Filipino woman for nineteen years, requiring her to work sixteen-hour days, seven days a week, rarely permitting her to walk outside, and allowing her to speak with her family on only a few occasions).

Additionally, multiple jurisdictions have found that the threat of deportation may itself constitute a threat sufficient to satisfy the second and/or third element of forced labor. Aguirre v. Best Care Agency, 961 F.Supp.2d 427, 444 (E.D.N.Y. 2013) (stating that "[t]he threat of deportation alone may support a claim for forced labor" under § 1589); Nuñag-Tanedo v. E. Baton Rouge, 790 F.Supp.2d 1134, 1146 (C.D. Cal. 2011) (holding that the threat of deportation constitutes "abuse of legal process" within the meaning of section 1589 since the objective is to intimidate or coerce the victim into forced labor); Mojsilovic v. Oklahoma ex rel. Board of Regents for the University of Oklahoma, No. CIV-14-886-R, 2015 WL 1542236, at *3 (W.D. Okla. Apr. 7, 2015) (collecting cases). See also United States v. Kozminski, 487 U.S. 931, 948 (1988) ("[T]hreatening . . . an immigrant with deportation could constitute the threat of legal coercion that induces involuntary servitude, even though such a threat made to an adult citizen of normal intelligence would be too implausible to produce involuntary servitude.").

The second element regarding serious harm may also be satisfied by evidence that the worker/victim was subjected to repeated abuse or threats of violence. See Guobadia v. Irowa, 103 F.Supp.3d 325, 336 (E.D.N.Y. 2015) (finding genuine issues of material fact precluded summary judgment in favor of defendants on plaintiff's forced labor claims, citing plaintiff's testimony that "she was subjected to repeated physical, verbal, and emotional abuse," by defendants, that an individual defendant's "physical blows resulted in visible bruises to the Plaintiff's face," and the same defendant "dragged the Plaintiff on a staircase.").

"When considering whether an employer's conduct was sufficiently serious to coerce the victim to provide labor or services against her will, we must also `consider the particular vulnerabilities of a person in the victim's position.'" Muchira, 850 F.3d at 618 (quoting United States v. Rivera, 799 F.3d 180, 186 (2d Cir. 2015)). See also Guobadia, 103 F. Supp. 3d at 336 (noting that under the totality of the circumstances, "the fact that the Plaintiff may have been able to come and go as she pleased from the home does not mean the Defendants were not engaging her in unlawful forced labor") (quoting Elat v. Ngoubene, 993 F.Supp.2d 497 (D. Md. 2014) (observing that "[a]lthough the record is replete with evidence that Plaintiff left the Ngoubene home on various occasions and returned, this evidence must be considered under the totality of the circumstances," and finding "there is a sufficient dispute of material fact to permit a jury to determine whether Plaintiff understood that she had any other option"). Courts look to whether a defendant's "misconduct has created a situation where ceasing labor would cause a plaintiff serious harm," recognizing that what constitutes serious harm for that plaintiff must be determined by considering the totality of the circumstances presented. Nuñag-Tanedo, 790 F. Supp. 2d at 1145. Serious harm encompasses "not only physical violence, but also more subtle psychological methods of coercion." Bradley, 390 F.3d at 150. However, "not all bad employer-employee relationships will constitute forced labor." Aguilera v. Aegis Communications Group, LLC, 72 F.Supp.3d 975, 978 (W.D. Mo. 2014). See also Muchira, 850 F.3d at 619-20 (affirming award of summary judgment to defendants, observing that plaintiff admitted that she came to the United States willingly, defendants never physically abused her or threatened her or her loved ones with physical harm, defendants never physically restrained or impeded her from leaving her employment situation, and defendants never threatened her with arrest, deportation, adverse immigration consequences, or other legal consequences if she left their employment); Bradley, 390 F.3d at 155 (noting distinction between "merely abusive employers" and employers who "deliberately sought to compel forced labor"); United States v. Toviave, 761 F.3d 623, 629 (6th Cir. 2014) (noting that "we should not— without a clear expression of Congressional intent—transform a statute passed to implement the Thirteenth Amendment against slavery or involuntary servitude into one that generally makes it a crime for a person in loco parentis to require household chores, or makes child abuse a federal crime.").

Finally, the "scope of the statute is narrowed by the requirement of scienter." U.S. v. Dann, 652 F.3d 1160, 1170 (9th Cir. 2011) (citing Calimlim, 538 F.3d at 711-12). "The linchpin of the serious harm analysis under § 1589 is not just that serious harm was threatened but that the employer intended the victim to believe that such harm would befall her." Id. See also Muchira, 850 F.3d at 618.

In response to the Motion for Summary Judgment, the Sacketts primarily delineate what services and goods, including shelter, sustenance and care, they provided Plaintiffs, and attribute the care and provisions to their benevolence. The Sacketts' assertions might be relevant to Plaintiffs' claims for unjust enrichment or breach of contract, pled in the alternative, but they are not relevant to liability under the TVPRA. Only one sentence in the Response is relevant to the TVPRA claim: "I nor the Sackett Family did not employ any Echon family or ask them to work or give any job or any task of any kind to the Echon family [sic]." [#110 at 3]. While the Sacketts do not proffer admissible evidence to corroborate their assertions, the record includes their deposition testimony in its entirety, see [#104-21, #104-22], and the court may consider any materials in the record. Fed. R. Civ. P. 56(c)(3).

I pause to acknowledge the seriousness of the allegations, as well as the status of the Sacketts as pro se litigants. The ordeal Plaintiffs describe and attribute to the Sacketts might not include the severity of treatment, physical abuse, and duration of punishment presented in Calimlim and Sabhnani; however, "the TVPA not only protects victims from the most heinous human trafficking crimes, but also various additional types of fraud and extortion leading to forced labor." Nuñag-Tanedo, 790 F. Supp. 2d at 1145 (citing Calimlim, 538 F.3d at 711-14). See also Panwar v. Access Therapies, Inc., 975 F.Supp.2d 948, 958 (S.D. Ind. 2013) (denying motion to dismiss as to TVPA claim based on plaintiff's allegations of "non-physical forms of coercion and threats of serious financial harm"). The court must consider whether the threat, seen from the vantage point of a reasonable person in the place of the victim, is sufficiently serious to compel the person to remain. Id. (citation omitted). See also Dann, 652 F.3d at 1171 ("someone is guilty of forced labor if he intends to cause a person in his employ to believe that if she does not continue to work, she will suffer the type of serious harm—physical or nonphysical, including psychological, financial, reputation harm—that would compel someone in her circumstances to continue working to avoid that harm."). Additionally, the victim's acquiescence must be "objectively reasonable under the circumstances." Muchira, 850 F.3d at 618 (emphasis in original) (internal quotation marks and citation omitted).

Plaintiffs attest that the Sacketts repeatedly threatened to kick them out of the home and/or have them deported if Plaintiffs did not work and similarly do as the Sacketts instructed. There is no indication in Plaintiffs' testimony that they had reason to believe the Sacketts could not effectuate the threats, or that they would not be subject to deportation; indeed the Echons attest they believed Leonida could have them deported because she and her husband had sponsored them. Additionally, Plaintiffs testify that Leonida Sackett told them they owed her and her husband a large debt that could be paid only through free labor, but she did not state the amount of the debt or explain the temporal terms for repaying the debt. See Dann, 652 F.3d at 1171 ("For an immigrant without access to a bank account and not a dollar to her name, a juror could conclude that the failure to pay her—and thus the lack of money to leave or live—was sufficiently serious to compel [the immigrant] to continue working."). Esmeraldo and Maribel testify that they received no money and they routinely lacked sufficient food; they did not speak English well, and they were entirely dependent on the Sacketts for lodging, utilities, and transportation; and the Sacketts held Maribel and the Echon sons' residency papers for over a year. Plaintiffs attest that, despite their requests, the Sacketts refused to allow them to find paying jobs, and in many instances forbade them from speaking with anyone in the community. However, the Sacketts' testimony under oath, summarized in the previous section, directly contradicts almost all of Plaintiffs' allegations. And while this court is cognizant that defendants generally cannot avoid summary judgment simply by offering uncorroborated, self-serving and conclusory statements, the court may and should consider Defendants' statements made under oath during a deposition and based on their own personal, firsthand knowledge. See Cox v. Lockheed Martin Corp., No. 11-CV-01479-PAB-BNB, 2013 WL 140624, at *4 (D. Colo. Jan. 11, 2013), aff'd, 545 F. App'x 766 (10th Cir. 2013).

Accordingly, this court finds that the claim and the competing evidence present precisely the sort of factual dispute that should be resolved by a jury, and that Plaintiffs Esmeraldo Echon and Justin Echon have failed to carry their burden. Thus this court respectfully recommends that the Motion for Summary Judgment as to this claim be DENIED.

B. Claim Three: Violation of the Colorado Minimum Wage of Workers

As Plaintiffs state in their Motion for Summary Judgment, they may recover under this claim if they were: (1) employees (2) receiving less than the legal minimum wage (3) applicable to such employee. Colo. Rev. Stat. § 8-6-118. See also Kennett v. Bayada Home Health Care, Inc., 135 F.Supp.3d 1232, 1238 (D. Colo. 2015) (noting that the Colorado "Minimum Wages of Workers Act" charges the Director of the Colorado Division of Labor with the determination of "adequate" minimum wages for workers in covered industries). An "employee" is "any person performing labor or services for the benefit of an employer in which the employer may command when, where, and how much labor or services shall be performed." 7 Colo. Code Regs. § 1103-1:2. See also Menocal v. GEO Group, Inc., 113 F.Supp.3d 1125, 1129 (D. Colo. 2015). For the reasons discussed above with respect to the TVPRA claim, I find that a genuine issue of material fact exists as to whether Plaintiffs are employees and I RECOMMEND that the Motion for Summary Judgment as to this claim be DENIED.10

C. Claim Four: Violation of the Colorado Wage Claim Act ("CWCA")

The Colorado Wage Claim Act governs the timely payment of wages and provides for judicial relief when wages are not paid. In particular, the CWCA allows an employee "to sue his or her former employer for earned wages and other compensation the employer has refused to pay." Lester v. Career Bldg. Acad., 338 P.3d 1054, 1058 (Colo. App. 2014). See also Colo. Rev. Stat. § 8-4-109. The CWCA defines "employer" as "every person, firm, partnership, association, corporation. . .employing any person in Colorado," and "employee" as "any person. . .performing labor or services for the benefit of an employer in which the employer may command when, where, and how much labor or services shall be performed." Colo. Rev. Stat. § 8-4-101(5)-(6). For the reasons discussed above with respect to the TVPRA claim, I find that a genuine issue of material fact exists as to whether Plaintiffs are employees and I RECOMMEND that the Motion for Summary Judgment as to this claim be DENIED.

II. Common Law Claims (Pled in the Alternative)

A. Claims Five and Six: Breach of Contract, or, in the alternative, Breach of Contract, Third Party Beneficiary

These two claims arise out of the Affidavit of Support (USCIS Form I-864) that the Sacketts signed for Plaintiffs, and by which the Sacketts identified themselves as sponsor and joint sponsor of Plaintiffs. See [#104 at 27-28]. U.S. Citizens applying for lawful permanent resident status for immediate relatives must provide an Affidavit of Support for each applicant, agreeing "to provide support to maintain the sponsored alien at an annual income that is not less than 125 percent of the Federal poverty line during the period in which the affidavit is enforceable." 8 U.S.C. § 1183a(a)(1); 8 C.F.R. § 213a.2(b)(1) ("The person who filed a relative . . . petition, the approval of which forms the basis of the intending immigrant's eligibility to apply for an immigrant visa or adjustment of status as an immediate relative or a family-based immigrant, must execute an affidavit of support on behalf of the intending immigrant."). Once the sponsored immigrant enters the United States and obtains legal permanent residency, the Affidavit of Support "is legally enforceable against the sponsor by the sponsored alien, the Federal Government, any State . . . or by any other entity that provides any means-tested public benefit." See 8 U.S.C. §§ 1183a(a)(1)(B), (e)(1); 8 C.F.R. § 213a.2(d) ("The sponsored immigrant, or any Federal, State, or local governmental agency or private entity that provides any means-tested public benefit to the sponsored immigrant after the sponsored immigrant acquires permanent resident status, may seek enforcement of the sponsor's obligations through an appropriate civil action."). See also Wenfang v. Mund, 748 F.Supp.2d 958, 962 (W.D. Wisc. 2010), affirmed in part and reversed in part by Lie v. Mund, 686 F.3d 418 (7th Cir. 2012); Younis v. Farooqi, 597 F.Supp.2d 552, 554 (D. Md. 2009); Shumye v. Felleke, 555 F.Supp.2d 1020, 1023 (N.D. Cal. 2008); Schwartz v. Schwartz, Case No. CIV-04-770-M, 2005 WL 1242171, at *1-2 (W.D. Okla. May 10, 2005).

The sponsor's obligation to support the sponsored immigrant at the requisite income level continues until one of the following conditions is met: the sponsor dies; the sponsored immigrant dies; the sponsored immigrant becomes a U.S. citizen; the sponsored immigrant permanently leaves the United States; or the sponsored immigrant receives credit for forty qualifying hours of work. See 8 U.S.C. §§ 1183a(a)(2), (3); 8 CFR 213a.2(e)(2)(i). A sponsor's failure to support the sponsored immigrant consistent with the obligations set forth in the Affidavit of Support creates a cause of action for breach of contract by which the sponsored immigrant may sue for damages "that would put plaintiff[s] in as good a position as [they] would have been had the contract been performed." Shumye, 555 F. Supp. 2d at 1024. See also 8 U.S.C. § 1183a(c). To determine the question of breach, and damages if necessary, courts compare the plaintiff's annual income for the particular years at issue against the 125 percent poverty threshold for each year. Shumye, 555 F. Supp. 2d at 1024-25. The sponsor and joint sponsor, if applicable, may also be liable for legal fees and other costs of collection. 8 U.S.C. §§ 1183a(c).11

It is undisputed that the Sacketts signed and submitted Affidavits of Support on behalf of Plaintiffs in their bid for citizenship. See [#104-6]; see also [#1 at ¶¶ 23, 24, #11 at ¶¶ 23, 24]. Defendants signed these forms on September 24, 2010 and October 1, 2010, [#104-6], and Plaintiffs thereafter received their Legal Permanent Resident status and came to the United States with the sponsorship of Defendants. Additionally, it is undisputed that during the time at issue in this lawsuit, the Sacketts supported Plaintiffs as follows: monthly rent in no more than the amount of $750, [#104-22 at 76:10-11]; food valued at no more than $12,500, [#104 at 29 (citing #51 at ¶ 25)]; transportation for Justin Echon and Plaintiffs' minor son to and from school, valued at no more than $1,600, [id. (citing #51 at ¶ 30)]; and monthly payment for utilities valued at no more than $300, [#104 at 5, ¶ 12]. Additionally, Plaintiffs account for the $1,400 that Esmeraldo Echon earned with the construction job in South Dakota in 2012, [#104-18 at ¶¶ 116, 117], and the value of the food stamps they received from Otero County in 2013 ($1,888) and 2014 ($4,412). See [#104-3]. Mrs. Sackett testified that in 2011, she gave Esmeraldo Echon $3,500. [#104-22 at 265:21-22]. But the Sacketts have not introduced evidence of any additional monetary support given in furtherance of their contractual obligations as sponsors during the years of 2012 through 2014, and indeed, Mrs. Sackett confirmed in her testimony that Defendants provided no additional monetary support after 2011. [Id. at 265:18-25, 266]. To the extent Mrs. Sackett testified that she could not recall giving Plaintiffs any other money, see [id. at 266:16-25], this court notes that Defendants failed to respond to Interrogatory No. 8, which asked Defendants to "list all times you financially supported any of the Plaintiffs or Jeffrey Echon . . . [including] the nature of the support as well as the amount expended or given." Defendants additionally failed to produce written evidence of any other support provided during the years 2012 through 2014. Accordingly, this court finds that Defendants should be precluded from offering such evidence now or at trial.

One hundred percent of the Federal Poverty Guidelines ("FPG") for a household of four was $23,050 in 2012, $23,550 in 2013, and $23,850 in 2014.12 Accordingly, 125 percent of the FPG for Plaintiffs' household during those years was $28,812.50, $29,437.50, and $29,812.50, respectively. Plaintiffs assert their annual household income was no greater than $14,896 for 2012, $22,132 for 2013, and $19,595 for 2014. [#104 at 29]. Plaintiffs contend, and this court agrees, that the evidence demonstrates the Sacketts failed to provide for them at the mandated 125 percent of the FPG during 2012, 2013, and 2014. The difference between Plaintiffs' household income and 125 percent of the FPG is $13,916.50 for 2012, $7,305.50 for 2013, and $10,217.50 for 2014, for a total of $31,439.50. Based on the record before it, this court finds that Plaintiffs have carried their burden as to Claim Six and RECOMMENDS that summary judgment be granted in favor of Plaintiffs and against Defendants as to this claim.13

B. Claim Seven: Unjust Enrichment

Finally, Plaintiffs contend they each worked for the Sacketts and that the Sacketts "benefitted from the many hours of work Plaintiffs performed for them without payment." [#104 at 25]. To recover for unjust enrichment, Plaintiffs must show that "(1) a benefit was conferred on the defendant by the plaintiff; (2) the benefit was appreciated by the defendant; and (3) the benefit was accepted by the defendant under such circumstances that it would be inequitable for it to be retained without payment of its value." Does v. Rodriguez, No. 06-cv-00805-LTB, 2007 WL 684117, at *5 (D. Colo. Mar. 2, 2007) (quoting Humphrey v. O'Connor, 940 P.2d 1015, 1021 (Colo. App. 1996). "The scope of this remedy is broad . . . with its application guided by the underlying principle of avoiding the unjust enrichment of one party at the expense of another." Id. Given the genuine issues of material fact identified above, I find that the undisputed evidence does not support an award of summary judgment in favor of Plaintiffs on the issue of whether Defendants were unjustly enriched by Plaintiffs' labor. Accordingly, this court RECOMMENDS that summary judgment as to Claim 7 be DENIED.

CONCLUSION

Based on the reasons set forth herein, this court respectfully RECOMMENDS that:

(1) Plaintiffs' Motion for Summary Judgment [#106] be GRANTED IN PART and DENIED IN PART;

(2) The court GRANT IN PART and DENY IN PART Plaintiffs' request that certain proposed facts be accepted as true;

(3) The court GRANT the Motion as to Claims Five and Six, pled in the alternative, with respect to liability;

(4) The court DENY the Motion as to Claims One, Three, Four, and Seven; and

(5) The court DISMISS Claim Two (arising under the Fair Labor Standards Act).14

(6) The Parties and counsel are reminded that the Final Pretrial Conference in this matter is set for September 29, 2017 at 10:00 A.M. in Courtroom C-204, Second Floor, Byron G. Rogers United States Courthouse, 1929 Stout Street, Denver, Colorado. The proposed Pretrial Order is due seven (7) days prior to the Final Pretrial Conference. Please remember that anyone seeking entry into the Byron G. Rogers United States Courthouse will be required to show valid photo identification. See D.C.COLO.LCivR 83.2(b).

Attorneys and Law Firms

Marshall Milby Gandy, U.S. Securities & Exchange Commission, Fort Worth, TX, for Plaintiff.

Matthew T. Kirsch, U.S. Attorney's Office, Denver, CO, for Intervenor Plaintiff.

Heritage America, c/o Michael Vallone, Orland Park, IL, Pro Se.

Jeffrey D. Mitchell, Spokane, WA, Pro Se.

John J. Schlabach Spokane, WA, Pro Se.

Michael Vallone, Orland Park, IL, Pro Se.

National Marketing Solutions, LLC, North West Group, LLC, Spokane, WA, Pro Se.

Declan Joseph O'Donnell, Declan Joseph O'Donnell, P.C., Castle Rock, CO, Robert T. McAllister, Daniel Charles Stiles, Isaacson Rosenbaum, P.C., David A. Zisser, Isaacson Rosenbaum, P.C., Matthew T. Kirsch, U.S. Attorney's Office, Denver, CO, for Defendants.

Glen Andrew Anderson, Washington State Attorney General's Office, Olympia, WA, for Movant.

ORDER DENYING JOHN SCHLABACH'S MOTION FOR SUMMARY JUDGMENT

BLACKBURN, J.

*1 The matter before me is John Schlabach's Motion for Summary Judgment [# 232], filed May 11, 2006. I deny the motion.

As an initial matter, I note that Schlabach's motion fails to comply with REB Civil Practice Standard V.H.3.b., which sets forth the formatting requirements for summary judgment motions filed in this court. The motion would be subject to being stricken on that basis alone.

More importantly, the violation here is so profound that I cannot meaningfully review the request for relief. Schlabach has failed to even identify any of the claims or defenses as to which he seeks summary judgment, much less set forth the elements of any such claim or defense or the party who bears the burden of proof. Indeed, Schlabach fails to cite to even a single legal precedent —other than those outlining the familiar standard for summary judgment—in support of his motion. See D.C.COLO.LCIVR. 7.1 C. Nor has Schlabach specifically delineated how the evidence he attaches to his motion warrants the entry of summary judgment in his favor.1 It is Schlabach's duty as the movant to specifically set forth the facts and law that arguably entitle him to relief. I am neither required nor inclined to peruse the record in this case in search of evidence that might support his motion. See U.S. v. Dunkel, 927 F.2d 955,956(7th Cir.1991) ("Judges are not like pigs, hunting for truffles buried in briefs."). See also Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir.1994) (litigant's pro se status does not excuse failure to follow fundamental rules of procedure), cert. denied, 115 S.Ct. 750 (1995).

I acknowledge that, because Schlabach is proceeding pro se, I must construe his motion more liberally and hold it to a less stringent standard than formal pleadings or papers drafted by lawyers. See Hall v. Belmon, 935 F.2d 1106, 1110 (10th Cir.1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). Nevertheless, pro se litigants still bear responsibility for developing the factual bases of their requests for relief, see Whitney v. State of New Mexico, 113 F.3d 1170,1173-74 (10th Cir.1997); Hall, 935 F.2d at 1110, and it is neither necessary nor appropriate for the court to act as an advocate for a pro se party by making his case for him, Hall, 935 F.2d at 1110. Accordingly, Schlabach's motion for summary judgment must be denied.

THEREFORE, IT IS ORDERED, that John Schlabach's All Citations Motion for Summary Judgment [# 232], filed May 11, 2006, is DENIED.

Attorneys and Law Firms

Robert Pipkins, Lewisburg, PA, pro se.

Jacob Licht—Steenfat, William George Pharo, U.S. Attorney's Office, Denver, CO, for Defendant.

ORDER ADOPTING RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

Blackburn, District Judge.

*1 The matter before me is the Recommendation of United States Magistrate Judge [# 65],1 filed July 24, 2014. No objection having been filed to the recommendation, I review it for plain error only. See Morales—Fernandez v. Immigration & Naturalization Service, 418 F.3d 1116, 1122 (10th Cir.2005).2 I perceive no such error in the magistrate judge's recommended disposition. Defendant has met its burden to assert and demonstrate plaintiff's failure to exhaust his administrative remedies, and plaintiff has failed to meet defendant's evidence with admissible, competent evidence establishing that administrate remedies were unavailable to him. I therefore find and conclude that the magistrate judge's thorough and well-reasoned recommendation should be approved and adopted.

THEREFORE, IT IS ORDERED as follows:

1. That the Recommendation of United States Magistrate Judge [# 65], filed July 29, 2014, is APPROVED AND ADOPTED as an order of this court;

2. That Defendant's Motion For Summary Judgment [# 43], filed November 26, 2013, is GRANTED;

3. That plaintiffs claims against defendant are DISMISSED WITHOUT PREJUDICE for failure to exhaust administrative remedies; and

4. That judgment without prejudice SHALL ENTER on behalf of defendant, Ryan Taillon, identified in the caption as "Officer Mr. Taillon," against plaintiff, Robert Pipkins, as to all claims for relief and causes of action asserted against him in this action.

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

KRISTEN L. MIX, United States Magistrate Judge

This matter is before the Court on Defendant's Motion for Summary Judgment [# 43]1 (the "Motion"). The Motion is referred to this Court for recommendation regarding disposition [# 44]. Plaintiff, who proceeds in this matter pro se,2 filed a Response3 [# 47]. Defendant has not filed a Reply, and his time to do so has elapsed.4 The Court has reviewed the Motion, the Response, the entire docket, and the applicable law, and is sufficiently advised in the premises. For the reasons set forth below, the Court respectfully RECOMMENDS that the Motion for Summary Judgment [# 43] be GRANTED.

I. Background

*2 Plaintiff is incarcerated by the Federal Bureau of Prisons (the "BOP"). Amended Prisoner Complaint [# 12] (the "Complaint") at 2. Plaintiff brings one claim under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), and asserts that this Court has jurisdiction pursuant to 28 U.S.C. § 1331. Id. at 3. Plaintiff alleges that Defendant, during the scope of Defendant's official duties as a prison officer, used excessive force which caused Plaintiff injury. Id. at 4. Specifically, Plaintiff asserts an Eighth Amendment claim of cruel and unusual punishment against Defendant. Id. Plaintiff seeks "monetary compensation, extensive immediate dental care or medical care, [and][s]epratee [sic] from said named officer."5 Id. at 8.

Plaintiff alleges that, while escorting Plaintiff's cellmate, Defendant approached Plaintiff's cell on July 29, 2012 (the "Incident"). Id. at 3. According to Plaintiff, he "was handcuffed behind [his] back" and could not stay upright in his cell due to nausea. Id. Plaintiff avers that Defendant unsuccessfully "attempted to pick [Plaintiff] up." Id. According to Plaintiff, Defendant "became aggravated and overly aggressively picked [Plaintiff] up and dove out the cell with [him] causing [his] face to hit the concrete[.]" Id. at 4. Plaintiff maintains that he "went unconscious for a moment or so [and] when [he] awoke [he] was laying in a puddle of blood with deep lacerations to [his] upper lip . . . [and his] teeth were knocked out. . . ." Id. Plaintiff checked "yes" on his form complaint, affirming that he exhausted his available administrative remedies. Id. at 7.

Defendant argues that "Plaintiff failed to exhaust his administrative remedies." Motion [# 43] at 1. Defendant submitted a declaration signed by Theresa Montoya ("Montoya"), a Senior Attorney at the Federal Correctional Complex in Florence, Colorado, to support his argument that Plaintiff failed to exhaust his administrative remedies. See generally Montoya Decl. [# 43-1].

In the Response, Plaintiff included various documents that, he argues, demonstrate that he exhausted all of his administrative remedies. Response [# 47] at 1.

On June 30, 2014, the Court entered a Minute Order granting Plaintiff eighteen additional days in which to submit documentation regarding Defendant's Motion. Minute Order [# 59] at 2. In the Minute Order, the Court provided explicit instructions to Plaintiff with regard to the evidentiary requirements of Fed.R.Civ.P. 56. Id. at 2 (internal citation omitted) ("Plaintiff should take note of the testamentary guidelines in 28 U.S.C. § 1746. Plaintiff should include the following statement on the last page of every document he submits: "I declare under penalty of perjury that the foregoing is true and correct. Executed on (date)." Plaintiff should not include additional documentation in pages following this oath unless Plaintiff specifies in the oath that the additional pages are included in the oath. Finally, Plaintiff should be aware that swearing to the truth of false information is perjury, and perjury is a crime punishable by fine and imprisonment.").

On July 11, 2014, Plaintiff filed a "Motion for Production of Video Camera Footage" (the "Motion for Production") concerning discovery. See generally Motion for Production [# 60]. Defendant filed "Defendant's Response To Plaintiff's Motion for Production of Video Camera Footage (Doc. 60)" (the "Motion for Production Response"). See generally Motion for Production Response [# 63].6

*3 On July 14, 2014, Plaintiff filed a "Memorandum Request for Prior Notice of Adjudication" (the "Prior Notice Request") requesting "prior notice of any steps leading toward the adjudications called for in this case `at the conclusion of all evidence' considered in this action." Prior Notice Request [# 62] at 1.

On July 21, 2014, Plaintiff filed a "Constructive Notice Memorandum" (the "Memorandum"). See generally Mem. [# 64]. In the Memorandum, Plaintiff included exhibits regarding his acts of self-harm prior to the Incident, his attempts to secure counsel, and his physical condition immediately following the Incident. Id., Ex. A, at 5-6, Ex. B, at 7-9, Ex. C, at 10. Plaintiff requests that the Court "allow Plaintiffs [Memorandum] to be valid," and that the Court "order the Plaintiff to obtain private counsel[.]" Id. at 3.

II. Standard of Review

The purpose of a motion for summary judgment pursuant to Fed.R.Civ.P. 56 is to assess whether trial is necessary. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Under Rule 56, the Court must dismiss a claim without prejudice if the evidence presented does not create a genuine issue of material fact as to whether Plaintiffs Eighth Amendment claim against Defendant was properly exhausted. Gatlin v. Brown, 2014 WL 1818245, at *4 (D.Colo.2014) (noting that dismissal of unexhausted claims on summary judgment should be without prejudice). An issue is genuine if the evidence is such that a reasonable jury could resolve the issue in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is material if it might affect the outcome of the case under the governing substantive law. Id.

The burden is on the movant to show the absence of a genuine issue of material fact. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670-71 (10th Cir.1998) (citing Celotex, 477 U.S. at 323). When the movant does not bear the ultimate burden of persuasion at trial, the "movant may make its prima facie demonstration [of the absence of a genuine issue of material fact] simply by pointing out to the [C]ourt a lack of evidence for the nonmovant on an essential element of the nonmovant's claim." Id. at 671. If the movant carries the initial burden of making a prima facie showing of a lack of evidence, the burden shifts to the nonmovant to put forth sufficient evidence for each essential element of his claim such that a reasonable jury could find in his favor. See Anderson, 477 U.S. at 248; Simms v. Okla. ex rel. Dept of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir.1999), abrogation recognized by Eisenhour v. Weber County, 744 F.3d 1220, 1227 (10th Cir.2014). Conclusory statements based merely on conjecture, speculation, or subjective belief are not competent summary judgment evidence. Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th Cir.2004). The nonmoving party's evidence must be more than "mere reargument of [his] case or a denial of an opponent's allegation" or it will be disregarded. See 10B Charles Alan Wright, et al., Federal Practice and Procedure § 2738 at 356 (3d ed.1998).

Only documents that adhere to the evidentiary requirements of Fed.R.Civ.P. 56 can be considered for purposes of summary judgment. Rule 56(c) provides that:

*4

Fed.R.Civ.P. 56(c)(1)-(4).

Pro se litigants must follow procedural rules including Rule 56. See Nielson, 17 F.3d at 1277. The Tenth Circuit, however, has found that "[t]he rights of pro se litigants require careful protection where highly technical requirements are involved. . . .'" Jaxon v. Circle K Corp., 773 F.2d 1138, 1140 (10th Cir.1985) (quoting Garaux v. Pulley, 739 F.2d 437, 439 (9th Cir.1984)). Thus, for purposes of summary judgment, courts can consider pro se litigants' verified complaints if the complaints "satisf[y] the standards for affidavits outlined in [Rule 56(c)(4)]." Adams v. Dyer, 223 Fed.Appx. 757, 764 n. 7 (10th Cir.2007) (citing Conaway v. Smith, 853 F.2d 789, 792 (10th Cir.1988); see also Harris v. Denver Health Med. Ctr., No. 11-cv-01 868-REB-MEH, at *7. (D.Colo. Jan. 31, 2013) (citations omitted); West v. Yeaton, No. 09cv-01268-MSK-KLM, at *3 (D.Colo. Jan. 6, 2011). In addition to pro se litigants' verified complaints, courts can consider evidence that is admissible. Law Co. v. Mohawk Const. & Supply Co., 577 F.3d 1164, 1170 (10th Cir.2009) (citing Fed.R.Evid. 901(a)); Nasious v. Robinson, 2010 WL 1268135 (D.Colo. Feb. 17, 2010) (citing World of Sleep, Inc. v. La-Z-Boy Chair Co., 756 F.2d 1467, 1474 (10th Cir.1985)). For assertions to be admissible they must be sworn. Sparks v. Rittenhouse, No. 02-cv-02356-MSK-BNB, 2007 WL 987473, at *6 (D.Colo. Mar. 29, 2007) (citing Adickes, 398 U.S. at 158 n.17; Sofford v. Schindler Elevator Corp., 954 F.Supp. 1459, 1462-63 (D.Colo.1997)).

III. Analysis

Under the Prison Litigation Reform Act ("PLRA"), an inmate must first exhaust administrative remedies before filing suit. Porter v. Nussle, 534 U.S. 516, 520 (2002) ("1997e(a)'s exhaustion requirement applies to all prisoners seeking redress for prison circumstances or occurrences."); Jones v. Bock, 549 U.S. 199, 211 (2007) ("There is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court"); Woodford v. Ngo, 548 U.S. 81, 84 (2006) ("Exhaustion is no longer left to the discretion of the district court, but is mandatory."). Specifically, the exhaustion provision states:

*5 42 U.S.C. § 1997e(a). In order to "properly exhaust" available administrative remedies, inmates must fully comply with the applicable prison procedural requirements. Jones, 549 U.S. at 218 (citing Woodford, 548 U.S. at 88); Jernigan v. Stuchell, 304 F.3d 1030,1032 (10th Cir.2002) (citing Wright v. Hollingsworth, 260 F.3d 357, 358 (5th Cir.2001)). The burden is on the defendant to assert failure to exhaust in a dispositive motion. See Jones, 549 U.S. 199 at 216.

If the defendant establishes that the plaintiff failed to exhaust the prison's administrative remedies, the plaintiff must show that the remedies were unavailable to him. Tuckel v. Grover, 660 F.3d 1249, 1254 (10th Cir.2011). Courts have found that remedies are unavailable when inmates are intimidated by prison officials, id., and when "prison officials erroneously inform an inmate that the remedy does not exist or inaccurately describe the steps he needs to take to pursue it." Stine v. United States Fed. Bureau of Prisons, 508 Fed.Appx. 727, 730-31 (10th Cir.2013) (citations omitted) (internal quotation marks omitted).

The prison facility is tasked with the responsibility of establishing grievance procedures. Jones, 549 U.S. at 218 ("[I]t is the prison's requirements, not the PLRA, that define the boundaries of proper exhaustion."). Inmates within the BOP must follow a four-step administrative procedure in order to exhaust their administrative remedies. Montoya Decl. [# 43-1] ¶ 7 (citing 28 C.F.R. §§ 542.10, et seq.). In Step 1, inmates "must attempt informal resolution of [their] concern[s] by filing a Request for Informal Resolution (a `BP-8' form) with the appropriate [BOP] staff member, ordinarily [their] Correctional Counselor." Id. ¶ 8. In Step 2, inmates must "file a formal Administrative Remedy Request (a `BP-9' form) to the Warden at the institution where [they are] being housed within 20 calendar days of the event giving rise to the grievance." Id. ¶ 9. In Step 3, inmates must "fil[e] a Regional Office Administrative Appeal (a `BP-10' form) with the Regional Director within 20 calendar days of the date the Warden signs the denial of the BP-9." Id. ¶ 10 (citing 28 C.F.R. § 542.15(a)). In Step 4, inmates must "file an appeal on the BP-11 form to the General Counsel at the BOP's Central Office in Washington, D.C. within 30 calendar days of the denial of the BP-10 appeal." Id. ¶ 12 (citing 28 C.F.R. § 542.15(a)). "At any [step] of the administrative remedy process, a request may be rejected if an inmate fails to comply with procedural requirements." Id. ¶ 17. Inmates may bypass the procedural requirement of filing initially at the institution level if one of five exceptions applies: the request contains a(1) sensitive issue; (2) DHO appeal; (3) Control Unit appeal; (4) Controlled housing status appeal; or (5) if it falls within the category of "[o]ther requests for formal review of decisions not originating from the Warden." 28 C.F.R. § 542.14(d)(1)-(5).

In the Declaration, Ms. Montoya explains the BOP procedural requirements that govern the submission and acceptance of inmates' administrative remedy requests. Montoya Decl. [# 43-1] ¶¶ 7-13, 16-19. Ms. Montoya also interprets all of Plaintiff's administrative remedy requests that she determined were filed in connection with the Incident. Id. ¶¶ 20-27. The Declaration includes as attachments the internal administrative log for Plaintiff's requests, a table to interpret the log, some7 of the rejection notices Plaintiff received, and other pertinent documents. Id., Attach. 1 [# 43-1] at 12-14; id., Attach. 2 [# 43-1] at 15-16; id., Attach. 3 [# 43-1] at 17-22; id., Attach. 4 [# 43-1] (the "Table") at 23; id., Attach. 5 [# 43-1] (the "Log") at 24-50; Second Request Rejection [# 43-1] at 51-52; Third Request Rejection [# 43-1] at 53-57. Ms. Montoya asserts that Plaintiff submitted five requests in connection with the Incident and all five were rejected for failure to adhere to procedural requirements. Montoya Decl. [# 43-1] ¶¶ 20-27; cf. 28 C.F.R. §§ 542.13-19 (discussing the general procedural requirements governing the BOP grievance process).

*6 Plaintiff asserts that he has submitted "all [he has] to show that [he] exhausted all administrative remedies." Response [# 47] at 1. Plaintiff submitted with the Response sundry documentation concerning his administrative remedies. Id. at 2-15.

The Court addresses in turn each of the five administrative remedy requests identified by Ms. Montoya.

A. First Request

According to Defendant, Plaintiff filed Administrative Remedy Request # 701755-R18 (the "First Request") "at the regional level, which was received on August 21, 2012, and alleged staff misconduct in connection [with] the incident." Montoya Decl. [# 43-1] ¶ 21. Defendant asserts that the BOP rejected Plaintiffs First Request because "Plaintiff did not file at the appropriate level, did not attempt informal resolution, did not file at the institution level and did not raise a sensitive issue." Id. (citing Log [# 43-1] at 33; Table [# 43-1] at 23).

Plaintiff submitted an "Informal Resolution Form" that he allegedly sent in conjunction with his First Request.9 Response [# 47] at 4. The Court does not consider the contents of this form because Plaintiff does not swear to the form's veracity, despite the Court's explicit instructions that he must do so. See Sparks, 2007 WL 987473, at *6 ("Unsworn assertions are not sufficient grounds to oppose a motion for summary judgment."); see also Nasious, 2010 WL 1268135, at *7 ("Plaintiff has attached grievances filed by other inmates in an attempt to set forth evidence of such a custom. However these statements are not sworn or certified and therefore run afoul of Rule 56(c) and the court need not consider them on summary judgment.").

Defendant's evidence corroborates his assertions concerning the First Request's submission and rejection. Plaintiff offers no admissible evidence that disproves Defendant's assertions. Thus, Defendant has met his initial burden in demonstrating that Plaintiff did not exhaust his administrative remedies with the First Request. See Jones, 549 U.S. at 216 ("failure to exhaust is an affirmative defense under the PLRA").

B. Second Request

According to Defendant, Plaintiff filed Administrative Remedy # 702229-;F1 (the "Second Request") "at the institution level, which was received on August 24, 2012, again alleging staff misconduct in connection [with] the Incident." Montoya Decl. [# 43-1] ¶ 22. (citing Log [# 43-1] at 34, Second Request Rejection [# 43-1] at 51). The BOP rejected the Second Request for the following reasons: (1) Plaintiff "did not submit [his] request through [his] counselor, or other authorized person;" (2) Plaintiff "did not attempt informal resolution prior to submission of administrative remedy, or [Plaintiff] did not provide the necessary evidence of [his] attempt at informal resolution;" and (3) Plaintiff needed to provide "more specific information about [his] request/appeal so that it may be considered."10 Second Request Rejection [# 43-1] at 51. The rejection notice states that Plaintiff "may resubmit [his] request in proper form within 5 days of the date of this rejection notice." Id. Defendant maintains that Plaintiff did not resubmit his request. Id. ¶ 22.

*7 Plaintiff submitted a document labeled "Request for Administrative Relief" dated August 17, 2012.11 Response [# 47] at 7. On the request, Plaintiff asserts that he is "filing this sensitive nine12 due to an assault that occurred on [July 29, 2012], after receiving five stitches." Id. Plaintiff also wrote "[s]ee Attached # 3," but he did not include with the Response a document labeled "Attached # 3" or "# 3." Id. Under Rule 56(c), parties must "cite to particular parts of material in the record. . . ." Fed.R.Civ.P. 56(c)(1)(A). The Court will not hunt through all of the documents Plaintiff has submitted to determine if "Attached # 3" is included but mislabeled. Accord James v. Heuberger Motors, Inc., No. 10-cv-01648-CMA-KLM, 2011 WL 5331600, at *1 (D.Colo. Nov. 4, 2011); Walker v. Meyer, No. 08-cv-01 911-REB-KLM, 2009 WL 3158157, at *3 (D.Colo.2009) (citing Gross v. Burggraf Const. Co., 53 F.3d 1531, 1546 (10th Cir.1995); SEC v. Thomas, 965 F.2d 825, 827 (10th Cir.1992)).

Plaintiff does not contradict Defendant's evidence. Plaintiff does not offer evidence that the Counselor to whom he submitted his Request was the proper BOP employee. Plaintiff does not reference an attempt at informal resolution nor provide evidence that such a resolution occurred. Plaintiff does not explain how his one sentence description of the Incident (in which Plaintiff fails to mention Defendant or Defendant's alleged actions) is sufficient for the BOP to consider his Request. See Response [# 47] at 7. Finally, Plaintiff does not demonstrate that he resubmitted his Request in accordance with the rejection notice's instructions. Thus, Defendant has met his initial burden in demonstrating that the Second Request did not exhaust Plaintiffs administrative remedies. See Jones, 549 U.S. at 216 ("failure to exhaust is an affirmative defense under the PLRA").

C. Third Request

According to Defendant, Plaintiff filed Administrative Remedy # 703322-F1 (the "Third Request") "at the institutional level, which was received on September 4, 2012, alleging that he was assaulted by staff in connection [with] the Incident and requesting medical care for injuries allegedly arising from the Incident." Montoya Decl. [# 43-1] ¶ 23 (citing Log [# 43-1] at 35, Third Request Rejection [# 43-1] at 53-57). The Third Request was rejected because more than 20 calendar days had elapsed between the Incident and receipt of the Third Request. Log [# 43-1] at 35; see Table [# 43-1] at 23.

Defendant maintains that Plaintiff unsuccessfully appealed the rejection of the Third Request. Montoya Decl. [# 43-1] ¶ 23; see Log [# 43-1] at 36. According to Defendant, Plaintiff's appeal was rejected because he submitted his appeal to the wrong level and on an incorrect form. Log [# 43-1] at 36; see Table [# 43-1] at 23.

Plaintiff offers no evidence that he exhausted all administrative remedies by means of his Third Request. Defendant's evidence, on the other hand, corroborates Defendant's contention that Plaintiff's Third Request failed to exhaust all administrative remedies. Thus, Defendant has met his initial burden with regard to the Third Request. See Jones, 549 U.S. at 216 ("failure to exhaust is an affirmative defense under the PLRA").

D. Fourth Request

*8 According to Defendant, Plaintiff filed Administrative Remedy Request # 711110-A1 (the "Fourth Request") "at the Central Office level, which was received on October 1, 2012, claiming he was assaulted by staff and denied medical treatment in connection [with] the Incident." Montoya Decl. [# 43-1] ¶ 24 (citing Log [# 43-1] at 37). Plaintiffs Fourth Request was rejected because Plaintiff filed it at the wrong level and did not raise a sensitive issue. Log [# 43-1] at 37; see Table [# 43-1] at 23. The BOP's internal records show that a BOP employee included the following statement regarding Plaintiff's Fourth Request: "[W]e are unable to identify the appeal [number]. . . . Sensitive appeals must be filed at the region[al] level first." Log [# 43-1] at 37.

Plaintiff submitted a document labeled "Central Office Administrative Remedy Appeal," dated September 25, 2012.13 Response [# 47] at 14. The Court does not consider the appeal because Plaintiff does not swear to the form's veracity, despite the Court's explicit instructions that he must do so. See Sparks, 2007 WL 987473, at *6 ("Unsworn assertions are not sufficient grounds to oppose a motion for summary judgment."); see also Nasious, 2010 WL 1268135, at *7 ("Plaintiff has attached grievances filed by other inmates in an attempt to set forth evidence of such a custom. However these statements are not sworn or certified and therefore run afoul of Rule 56(c) and the court need not consider them on summary judgment."). Plaintiff also includes as an attachment to the form a handwritten document titled "Sensitive Ten Copy." Response [# 47] at 11-12. The Court will not consider the attachment because it is unsworn (again, contrary to the Court's explicit instructions) and not clearly labeled as the attachment to which the appeal refers. See James, 2011 WL 5331600, at *1 (noting that one specific citation to material in an attachment is insufficient under Rule 56(c)(1)); Walker, 2009 WL 3158157, at *3 (holding that the plaintiff failed to raise a legitimate dispute by not specifically citing pertinent allegations in the complaint).

Plaintiff does not offer any admissible evidence to contradict Defendant's assertions with regard to the Fourth Request. Plaintiff does not disprove that he sent his form to the wrong level nor that he failed to raise a sensitive issue. It is within the Administrative Remedy Coordinator's discretion to determine whether an inmate's request raises a sensitive issue. 28 C.F.R. § 542.14(d)(1); Antonelli v. Crow, 08-261-GFVT, 2012 WL 4215024, at *6 (E.D.Ky. Sept. 19, 2012); Jackson v. Walker, 07-230-DCR, 2008 WL 559693 at *9 (E.D.Ky. Feb. 27, 2008); Jeanes v. United States Dept. of Justice, 231 F.Supp.2d 48, 51 (D.D.C.2002). Thus, Defendant has met his initial burden in demonstrating that Plaintiff did not exhaust his administrative remedies with his Fourth Request. See Jones, 549 U.S. at 216 ("failure to exhaust is an affirmative defense under the PLRA").

E. Fifth Request

According to Defendant, Plaintiff filed Administrative Remedy Request # 740229-F1 (the "Fifth Request") "at the institution level, which was received on June 27, 2013, alleging staff misconduct." Montoya Decl. [# 43-1] ¶ 25 (citing Log [# 43-1] at 44). The Fifth Request and the two subsequent appeals were denied. Id. ¶ 26. In the Declaration, Ms. Montoya notes that the Fifth Request and subsequent appeals may be unrelated to the Incident. Id. ¶ 25. The Court agrees with Ms. Montoya's reservation. The internal record concerning the regional appeal refers to an event that predates the Incident by one month, and Plaintiff does not assert or provide evidence that the Fifth Request and subsequent appeals are related to the Incident. See Log [# 43-1] at 49; see generally Response [# 47]. Thus, like the four previous requests, the Fifth Request does not demonstrate that Plaintiff exhausted his administrative remedies in connection with the Incident.

F. Availability of Administrative Remedies

*9 In various documents submitted to the Court, Plaintiff alleges that Defendant interfered with Plaintiff's ability to seek administrative remedies. Response [# 47] at 1, 7; August Letter [# 1] at 1; September Letter [# 6] at 1-3; Response to Docket # 48 Defendants [sic] Motion to Strike [# 57] (the "Motion to Strike Response") at 2. In other words, Plaintiff alleges that administrative remedies were unavailable to him. See 42 U.S.C. § 1997e(a) ( "No action shall be brought . . . until such administrative remedies as are available are exhausted.") (emphasis added). The Court does not address Plaintiffs allegations concerning unavailability because the documents that contain the allegations are insufficient for consideration at summary judgment. As noted above, Fed.R.Civ.P. Rule 56 governs what evidence may be considered in conjunction with a motion for summary judgment. Rule 56 provides that:

Fed.R.Civ.P. 56(c)(1)-(4).

First, the Court cannot consider any of the attachments in the Response because Plaintiff does not swear to their veracity, despite the Court's explicit instructions as to how to provide sworn documents. See Sparks, 2007 WL 987473, at *6 ("Unsworn assertions are not sufficient grounds to oppose a motion for summary judgment"); see also Nasious, 2010 WL 1268135, at *7 ("Plaintiff has attached grievances filed by other inmates in an attempt to set forth evidence of such a custom. However these statements are not sworn or certified and therefore run afoul of Rule 56(c) and the court need not consider them on summary judgment."). Plaintiffs oath only swears that the statement on page two, which does not contain allegations relevant to unavailability of administrative remedies, is accurate. Response [# 47] at 2 ("I gave SIA Vanek a written statement on November 28, 2012. It is true and correct"), 3.

Second, the Court does not consider allegations in the August Letter and the September Letter because the letters are unsworn statements (Plaintiff again failed to heed the Court's explicit instructions in this regard). See Sparks, 2007 WL 987473, at *6 ("Unsworn assertions are not sufficient grounds to oppose a motion for summary judgment."); see also Nasious, 2010 WL 1268135, at *7 ("Plaintiff has attached grievances filed by other inmates in an attempt to set forth evidence of such a custom. However these statements are not sworn or certified and therefore run afoul of Rule 56(c) and the court need not consider them on summary judgment.").

Finally, the Court exercises its discretion in not considering the Motion to Strike Response [# 57]. The Court declines to consider the Motion to Strike Response [# 57] for three reasons. First, the Court "need only consider cited material" and, as the Motion to Strike Response [# 57] succeeded the Response [# 47], the Motion to Strike Response [# 57] is not cited in the Response [# 47]. See Fed.R.Civ.P. 56(c)(3); cf. Gross, 53 F.3d at 1546 (quoting Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024-25 (10th Cir.1992), cert. denied, 506 U.S. 1013 (1992)) (further citation omitted) ("`[S]ufficient evidence (pertinent to the material issue) must be identified by reference' . . . .Without a specific reference, `we will not search the record in an effort to determine whether there exists dormant evidence. . . .'"). Second, it would be prejudicial to Defendant to consider the Motion to Strike Response [# 57] because it was filed four months after Defendant's Motion for Summary Judgment. Cf. Comm. for First Amendment v. Campbell, 962 F.2d 1517, 1524 (10th Cir.1992) (affirming denial of Plaintiffs' motion to reconsider summary judgment ruling because Plaintiffs did not explain why they waited three months to submit additional evidence that was not newly discovered). Third and most importantly, the Court does not consider the Motion to Strike Response [# 57] because the Court granted Plaintiff additional time to resubmit the allegations contained in the Motion to Strike Response in proper form, and Plaintiff failed to follow the Court's explicit instructions. See Minute Order [# 59] at 2.14

*10 Accordingly, the Court recommends that Plaintiff's Eighth Amendment claim against Defendant Taillon be dismissed without prejudice for failure to exhaust administrative remedies. Gatlin, 2014 WL 1818245, at *4 (noting that dismissal of unexhausted claims on summary judgment should be without prejudice).

Iv. Conclusion

Accordingly,

The Court respectfully RECOMMENDS that the Motion for Summary Judgment [# 43] be GRANTED, and that the claim against Defendant be DISMISSED without prejudice.

IT IS FURTHER ORDERED that pursuant to Fed.R.Civ.P. 72, the parties shall have fourteen (14) days after service of this Recommendation to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. A party's failure to serve and file specific, written objections waives de novo review of the Recommendation by the District Judge, Fed.R.Civ.P. 72(b); Thomas v. Arn, 474 U.S. 140, 147-48 (1985), and also waives appellate review of both factual and legal questions. Makin v. Colo. Dept of Corr., 183 F.3d 1205, 1210 (10th Cir.1999); Talley v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir.1996). A party's objections to this Recommendation must be both timely and specific to preserve an issue for de novo review by the District Court or for appellate review. United States v. One Parcel of Real Prop., 73 F.3d 1057, 1060 (10th Cir.1996).

Attorneys and Law Firms

Sanjay Chaubey, New York, NY, for Plaintiff.

Krishnan Shanker Chittur, Chittur & Associates, P.C., New York, NY, for Defendants.

MEMORANDUM & ORDER

AMON, Chief Judge.

*1 Between December 6, 2010 and December 15, 2010, the Court held a jury trial in the above-captioned action. On December 15, 2010, the jury returned a verdict, finding, by a preponderance of the evidence, that defendants Sat Prakash Sharma ("Sat Sharma"), Geeta Sharma, and the Vishva Seva Ashram of New York ("the Ashram" or "the Temple") were liable for forced labor and trafficking for the purpose of involuntary servitude or forced labor. The jury also found for defendants on a counter-claim, that plaintiff libeled the defendants. The jury awarded $250,000.00 in compensatory damages for the forced labor claim, $750,000.00 in compensatory damages for the trafficking claim, and $2.5 million in punitive damages for the trafficking claim. The jury awarded $300,000.00 in compensatory damages to Sat Sharma, $150,000.00 to Geeta Sharma, and $50,000.00 to the Ashram for the libel claim. Defendants Sat Sharma, Geeta Shrama, and the Ashram now move for judgment as a matter of law under Fed.R.Civ.P. 50 or, alternatively, a new trial and reduced damages pursuant to Fed.R.Civ.P. 56.

I. Motion of Judgment as a Matter of Law

Defendants move for judgment as a matter of law on each of plaintiff's claims, arguing that: (1) no reasonable juror could conclude that a reasonable person of the plaintiffs background and circumstances would continue to perform labor or services in order to avoid the alleged "serious harm;" (2) no reasonable juror could conclude that defendants' alleged acts actually caused plaintiff to perform any labor or services; (3) certain of plaintiff's allegations are too vague for a reasonable juror to conclude that the allegations are either "threats" or constitute "serious harm;" (4) certain of the alleged threats cannot be attributed to the Sharmas or the Ashram or were not directed at plaintiff; and (5) plaintiff's alleged cleaning duties were not forced labor but were in fact part of his contractual obligations.

Under Rule 50, "[j]udgment as a matter of law is proper when `a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue.'" United States v. Space Hunters, Inc., 429 F.3d 416, 428 (2d Cir.2005) (citing Fed.R.Civ.P. 50(a)(1)). "The court cannot assess the weight of conflicting evidence, pass on the credibility of the witnesses, or substitute its judgment for that of the jury." Space Hunters, Inc., 429 F.3d at 429 (internal quotation marks and citation omitted). Thus, a Rule 50 motion may be granted only if "the evidence, viewed in the light most favorable to the opposing party, is insufficient to permit a reasonable juror to find in her favor." GaldieriAmbrosini v. Nat'l Realty & Dev. Corp., 136 F.3d 276, 289 (2d Cir.1998). In making its evaluation, the court should "review all of the evidence in the record." Tolbert v. Queens Coll., 242 F.3d 58, 70 (2d Cir.2001)

Defendants argue that the evidence introduced at trial is legally insufficient to sustain a finding of liability for forced labor, 18 U.S.C. § 1589, and trafficking for the purpose of forced labor or involuntary servitude, 18 U.S.C. § 1590, under the Trafficking Victims Protection Act ("TVPA"). In arguing that motion, defendants break the evidence in the record into categories, explaining why each category does not itself support the verdict. On a Rule 50(b) motion, however, the Court cannot isolate bits of evidence, but must instead "view the evidence as a whole. . . ." Tolbert, 242 F.3d at 70 (remanding for failure to consider evidence as a whole). For the reasons stated below, the Court finds that the evidence as a whole, taken in the light most favorable to plaintiff, is sufficient to support the jury's verdicts.

1. Forced Labor

*2 Civil liability for forced labor under 18 U.S.C. 1589 requires a finding by a preponderance of the evidence that (1) the defendant obtained the labor or services of another person; (2) the defendant did so through one of the following prohibited means (a) through serious harm or threats of serious harm to . . . that person or any other person; or (b) through a scheme, plan or pattern intended to cause the person to believe that non-performance would result in serious harm to . . . that person or any other person; or (c) through the abuse or threatened abuse of the law or the legal process; and (3) the defendant acted knowingly. United States v. Sabhnani, 539 F.Supp.2d 617, 629 (E.D.N.Y.2008).

"Serious harm" "includes threats of any consequences, whether physical or non-physical, that are sufficient under all of the surrounding circumstances to compel or coerce a reasonable person in the same situation to provide or to continue providing labor or services." United States v. Bradley, 390 F.3d 145, 151 (1st Cir.2004), vacated on sentencing grounds, 545 U.S. 1101, 125 S.Ct. 2543, 162 L.Ed.2d 271 (2005); see also 18 U.S.C. § 1589, as amended by Pub.L. 110-457, Title II, § 222(b)(3), Dec. 23, 2008, 122 Stat. 5068 (codifying existing case law). "Abuse of the law or legal process" is the use of threats of legal action, whether administrative, civil, or criminal, in any manner or for any purpose for which the law was not designed in order to coerce someone into working against that person's will. United States v. Garcia, No. 02-CR-11001, 2003 WL 22956917, at *4-5 (W.D.N.Y. Dec.2, 2003) (quoting Restatement (Second) of Torts § 682); see also 18 U.S.C. § 1589, as amended by Pub.L. 110-457, Title II, § 222(b)(3), Dec. 23, 2008, 122 Stat. 5068 (codifying existing case law).

A worker's "employment and living conditions" may provide support for a jury's conclusion that a defendant's threats "plausibly . . . compelled the victim[ ] to serve." United States v. Farrell, 563 F.3d 364, 373 (8th Cir.2009) (quotations omitted); see also United States v. Veerapol, 312 F.3d 1128, 1130-21 (9th Cir.2002) (considering working conditions, including "excessive working hours," in analyzing involuntary servitude claim); Sabhnani, 539 F.Supp.2d at 620 (discussing working conditions). Thus, for example, where a worker testified that his rigorous work schedule "precluded sleep at least four times a week," the court in Farrell found that fact relevant to the question of whether the victim's labor was compelled. 563 F.3d at 373.

Defendants do not dispute that they obtained plaintiffs labor or services. Nor is there any dispute, for purposes of this motion, that defendants acted knowingly. Instead, defendants challenge the sufficiency of the harm at issue. Here, viewing all of the facts in the light most favorable to plaintiff, the harm or threatened harm alleged was sufficient for a reasonable jury to conclude that plaintiff was subjected to forced labor.

*3 According to plaintiff's testimony, he was first approached in India by Satya Dev Sharma ("Satya Dev"), defendant Sat Sharma's brother, in January or February of 2000 about coming to the United States to work at the Ashram.1 (Tr. 49). Sat's brother made certain assurances to plaintiff about his living conditions and salary. (Tr. 51). When he arrived, plaintiff found that these assurances were untrue. The room he was promised turned out to be a cramped, dirty, rat-infested, windowless space next to a public bathroom. (Tr. 59-61; 458). And, although the veracity of this claim is contested, plaintiff claims that his bed was positioned directly below a truncated pipe. (Tr. 60).

Plaintiff testified that throughout his time at the Temple, his typical work day began at 5:00 a.m. and ended at 10:00 p.m. (Tr. 98-99). He testified that he would not be able to eat dinner until after 11:00 p.m. (Tr. 99). In addition to his responsibilities as priest, the Sharmas required him to perform janitorial work. He would clean the basement and bathroom, provide maintenance for the Temple, and wash the dishes, pans, and pots. (Tr. 98). He was put to work painting several apartments on the second floor of the Temple that were rented out to tenants (Tr. 104-05), and was told to do the plumbing. (Tr. 105). Additionally, plaintiff testified that over the course of the seven years he lived at the Temple, Sat Sharma put him to work doing construction and yard work at the Sharma's house. (Tr. 103).

According to plaintiff, the defendants also restricted his freedom and privacy. He was under strict instructions to report to Geeta Sharma what had happened every day. (Tr. 98). Plaintiff also testified that at least one of his phone conversations with his wife was recorded and played back to him by another of Sat Sharma's brothers. (Tr. 220-21).

Plaintiff testified that when he first arrived in the United States, the Sharmas confiscated his passport. (Tr. 156; see also Tr. 414-19, 430, 461, 476, 501-02 (testimony of other witnesses)). According to plaintiff, the passport was not returned until June 2007 when he decided to leave the Temple and went to the police. (Tr. 67, 162, 165-68). Plaintiff testified that in 2006, Geeta Sharma informed him that his residence in the United States was not legal. (Tr. 153). He testified that subsequently, Geeta Sharma and Satya Dev, Sat Sharma's brother, warned him "that they own bars and they are friends with judges, that the police commissioner comes to their bar and that if [plaintiff] took a step in the wrong direction, just like he sent [plaintiff's] brother away, he will have [plaintiff] sent away, just like that." (Tr. 154).

Plaintiff further testified that in April or May 2007, defendants took his possessions. He explained that one night, from around 7:00 p.m. to 10:00 p.m., Sat Sharma took him to a Home Depot. (Tr. 133). When they returned, they found the door ajar, and plaintiff's personal effects, including his computer and cell phone, had been removed. (Tr. 133-34). Although the incident appeared to be a burglary, plaintiff then found his belongings in a garbage bag elsewhere in the Temple. (Tr. 133). Plaintiff told Sat Sharma that they should call the police, but Sharma responded that it was already too late in the night. (Tr. 136). Sat said he would take the bag home with him for fingerprinting. (Tr. 136). Plaintiff testified that he did not get his telephone back until he confronted the Sharmas and left the Temple in June. (Tr. 136).

*4 One of the items taken from plaintiff at the time of the alleged burglary was a laptop computer. (Tr. 136). The computer was lent to him by a devotee, Amit Buree. (Tr. 136). Plaintiff testified that after Sat Sharma took plaintiffs possessions, Buree told Sat Sharma that the computer in fact belonged to him. (Tr. 137). Plaintiff testified that when Buree spoke to Sat Sharma, the following occurred in his presence: "[T]hey were both, Mr. Sharma and Mrs. Sharma, they were yelling at Amit there and accusing him for his courage in making a gift to me. And both of them, Mr. Sharma's son is also Amit, they together beat up on the other Amit." (Tr. 138).

Crediting plaintiff's allegations, as it must, the Court now turns to their legal sufficiency. The threat of deportation may itself constitute a threat sufficient to satisfy the second element of forced labor. United States v. Calimlim, 538 F.3d 706, 713 (7th Cir.2008); see also United States v. Kozminski, 487 U.S. 931, 948, 108 S.Ct. 2751, 101 L.Ed.2d 788 (1988) ( "[T]hreatening . . . an immigrant with deportation could constitute the threat of legal coercion that induces involuntary servitude, even though such a threat made to an adult citizen of normal intelligence would be too implausible to produce involuntary servitude."). In Calimlim, the defendants retained the victim's passport, never informed the victim that they were themselves breaking the law by employing her, and never offered to regularize her presence in the United States. The court explained that the defendant's "vague warning that someone might report [the victim] and their false statements that they were the only ones who lawfully could employ her could reasonably be viewed as a scheme to make her believe that she or her family would be harmed if she tried to leave." "That is all the jury needed to convict." Calimlin, 538 F.3d at 713.

Defendants argue that the threat of deportation was not sufficient because plaintiff testified that he wanted to return to India, (Tr. 153). But returning to India lawfully and being subjected to deportation are clearly distinguishable. As plaintiff himself testified, "I came from India here not to get arrested here." (Tr. 154). Defendants also argue that because Geeta Sharma is an immigrant with a language barrier, it is not plausible that she was sufficiently connected to authorities that she could have had plaintiff sent away. But it was not unreasonable, considering his background and circumstances, that plaintiff lacked the courage to call her bluff. And even if plaintiff did recognize Geeta's specific threat as puffery, a reasonable person of plaintiffs background and circumstances could still fear that Geeta Sharma might contact the authorities if plaintiff was uncooperative.

Defendants also argue that a reasonable person in plaintiffs circumstances would not have been compelled to continue to provide labor or services. Defendants attempt to characterize plaintiff as a community leader who could easily turn to his congregants for help, as indeed he did in 2007. But defendants again fail fully to appreciate that the jury could have considered plaintiff's background and circumstances. The jury could have concluded that plaintiff was an immigrant without his passport, that he had no money, and that that he did not speak English. Under the circumstances, a rational jury could find that a reasonable individual in plaintiff's position would feel compelled to provide the labor and services in question.

2. Traficking

*5 Defendants were also found liable for trafficking plaintiff for forced labor or involuntary servitude. An individual has committed trafficking, in violation of 18 U.S.C. § 1590, where that person "knowingly recruits, harbors, transports, provides, or obtains by any means, any person for labor or services [for the purpose of forced labor or involuntary servitude]." Samirah v. Sabhnani, 772 F.Supp.2d 437, 448 (E.D.N.Y.2011). Defendants do not dispute, for purposes of this motion, that they knowingly harbored plaintiff. As the Court has already found that a reasonable jury could find that defendants subjected plaintiff to forced labor, the Court finds that the elements of trafficking are satisfied.

II. Motion for a New Trial as to Liability

Defendants next move for a new trial pursuant to Federal Rule of Civil Procedure 59. Defendants argue that they are entitled to a new trial because: (1) plaintiff's testimony was in part perjured; (2) trial counsel failed to introduce certain evidence; (3) plaintiff's testimony was not credible; and (4) the jury's verdict was inconsistent.

Under Rule 59(a) of the Federal Rules of Civil Procedure, "[t]he court may, on motion, grant a new trial on all or some of the issues—and to any party . . . for any reason for which a new trial has heretofore been granted in an action at law in federal court." Fed R. Civ. P. 59(a). A court "has significant discretion in deciding whether to grant a Rule 59 motion for a new trial." Manganiello v. Agostini, 2008 WL 5159776, at *8 (S.D.N.Y.2008) (citing Amato v. City of Saratoga Springs, 170 F.3d 311, 314 (2d Cir.1999)). Unlike a Rule 50 motion, which calls upon a court to view the evidence in the light most favorable to the verdict winner, a court considering a Rule 59 motion "may independently weigh the evidence." Id. Nonetheless, a court should not grant a new trial unless the "court determines that, in its independent judgment, the jury has reached a seriously erroneous result or [its] verdict is a miscarriage of justice." Nimely v. City of New York, 414 F.3d 381, 392 (2d Cir.2005) (internal quotation marks omitted).

1. Plaintif's Testimony

Defendants contend that they are entitled to a new trial because plaintiff's testimony was perjured. Defendants argue that plaintiff perjured himself when he stated that he never received any salary for the work he performed, that he was too "mortally scared" to reach out to the Indian embassy for help, that his bedroom in the basement had a "truncated pipe" protruding from the wall directly above his head where he slept, and that he could not speak English.

a. Salary

Defendants argue that plaintiff perjured himself by stating that "he never received any salary for any of the work he performed." Defendants misstate the record. Although plaintiff did state, as translated, "I never got a salary," (Tr. 115), in the part of the record cited by defendants, plaintiff's full testimony was as follows:

(Tr. 115-116).

As the above cited testimony shows, plaintiff testified that he did receive some salary. His testimony was that he did not receive any salary at first, but that subsequently he received $50 per month and later $100 per month personally, with an additional $2,200 per year being sent to his family.

Defendants note that plaintiff testified at his deposition that his family had received 949,000 rupees, which, by their calculation, equaled roughly $20,100. By contrast, $2,200 per year for seven years equals $15,400. The Court does not find this disparity troubling, however, especially in light of the qualification "approximately." Moreover, elsewhere in plaintiffs testimony, he stated that his family in India received approximately $20,000. (Tr. 225).

b. "Mortally Scared" to Contact the Indian Embassy

Defendants argue that plaintiff perjured himself by testifying that he was too "mortally scared" to reach out to the Indian embassy for help. Defendants argue that plaintiffs testimony must be perjured because he did eventually contact the Indian embassy in 2007. This logic is not persuasive. The fact that plaintiff finally mustered the courage to contact the embassy does not mean that he was not afraid to do so at an earlier point in time.

c. Truncated Pipe

Next, defendants argue that plaintiff perjured himself by testifying that there was a "truncated pipe" in his basement bedroom, protruding from the wall directly above his head where he slept. Defendants have submitted an affidavit from Theodore Wagner, who states that he is a licensed master plumber, that he installed plumbing in the basement of the Ashram in 1993, and that no pipes were installed in any room other than the kitchen and bathroom. (Def.Mot., Ex. A.) Wagner affirms that he inspected the premises on January 6, 2011, and states that "there has been no alteration to the plumbing in the Temple's cellar since I initially installed it in 1993." (Id.) Defendants also submit an affidavit from Mario Anthony Pesa, who states that he worked on the Ashram in 1994. (Defs.Mot., Ex. B.) Pesa stated that "there is no indication that any plumbing work was performed on Mr. Shukla's room in the basement." (Defs.Mot., Ex. B.)

*7 To begin with, defendants have proffered no reason why the testimony of Wagner and Pesa could not have been introduced at trial. At trial, defendants did in fact introduce testimony from Willie Pearson, a "handyman, carpenter, [and] plumber," (Tr. 528), who testified that he had performed repairs at the Temple since 1999 (Tr. 529), that he had visited the plaintiff's room (Tr. 530), and that he had never seen the pipes depicted in the pictures introduced by plaintiff. (Tr. 531.) He further testified, however, that he had observed damage on the wall in plaintiff's bedroom indicating that the wall had been cut "at the front where I'm thinking the head of the bed would be. Like on the pictures where you saw the pipes coming out." (Tr. 544-45).

The affidavits provided by defendants indicate that at the time renovations were performed in 1993-94, no plumbing was installed in plaintiff's bedroom, and that when Wagner and Pesa returned in January 2011 there had been no change to their work. The affidavits do not establish, however, that there had never been a pipe in plaintiffs bedroom. Indeed, the fact that Pearson saw damage to the wall where plaintiff had indicated the pipes were located could indicate that pipes had been removed and the wall patched up. And in any event, even if Wagner's and Pesa's testimony were persuasive, defendants have not explained why these statements, having never been subjected to adversarial testing, should be considered so weighty as to warrant a new trial.

In sum, the Court does not find that this dispute over the truncated pipe rendered the result seriously erroneous or a miscarriage of justice.

d. English Language Skills

Finally, defendants argue that plaintiff's reliance on a translator at trial was "perjury at worst and grossly misleading at best." (Tr. 18-19). Defendants base this assertion on a DVD video of a prayer service submitted to the Court in which plaintiff conducted prayer in English (Def.Mot., Ex. D). They also provide yet another posttrial affidavit, this time from Dolsi Sen, who states that he is a devotee at the Ashram, that he has known plaintiff since he arrived in the United States, and that he has observed plaintiff writing in English, speaking English during a prayer at Sen's house, translating for his sisters, who do not speak Hindi, and explaining religious concepts to them in English. (Def.Mot., Ex. D).

The fact that plaintiff has some English language facility, however, would not indicate that plaintiff was so fluent in English that a translator was not required at trial. With respect to the DVD, clerics in many faiths conduct services in languages in which they would not be able to testify. And other evidence in the record corroborates that plaintiff's Engligh language skills are somewhat limited. Priya Sahani Sood testified that she gave plaintiff weekly English lessons for a period of time, but that this ended abruptly in 2004 when plaintiff stopped contacting her. (Tr. 512-14). Sood further testified that when she and plaintiff speak now, she tries to force him to speak English and "felt good that he's learning a little English." (Tr. 516). The testimony of another devotee, Aresh Sahani, indicates that plaintiff lacked English language skills at least as late as 2005, (Tr. 415), contradicting testimony that he could speak English at the time he arrived in the United States.

*8 The Court finds that defendants have not submitted evidence showing either that plaintiff perjured himself by using a translator, or that such use was misleading.

2. Counsel's Failure to Introduce Certain Evidence

Defendants next argue that they are entitled to a new trial because of trial counsel's failure to introduce certain evidence. Specifically, they argue that their trial counsel should have introduced "voluminous construction contracts, invoices, receipts, and checks to pay for construction work that the Sharmas had done on their various properties between 2000-2007" (Def.Br.20), testimony from an expert witness as to the typical duties of a Hindu priest, and "evidence that plaintiff had at least four more email addresses than the one he acknowledged at trial." Additionally, defendants argue that trial counsel "failed to introduce into evidence an invoice indicating that mikitivari @hotmail.com ordered penis enlargement [p]ills." (Defs.Br.20.)

As an initial matter, defendants have not established that they may attack the jury's verdict on the ground that their trial counsel decided not to advance certain evidence. Civil litigants are "held accountable for the acts and omissions of their chosen counsel." Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 397, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993); see also Hoodho v. Holder, 558 F.3d 184, 192 (2d Cir.2009) ("[A] party who voluntarily chose an attorney as his representative in an action cannot avoid the consequences of the acts or omissions of this freely selected agent." (internal quotation marks, citation, alterations omitted)). Put simply, defendants cite no case in which a court found that an attorney's allegedly unreasonable decision not to introduce certain evidence requires a new trial. Second, even assuming some egregious oversight by counsel would warrant a new trial, defendants have not made such a showing.

a. Construction Records

Counsel's failure to introduce "construction contracts, invoices, receipts, and checks to pay for construction work that the Sharmas had done on their various properties between 2000-2007" did not result in a seriously erroneous result or a miscarriage of justice. Defendants argue that such documents would rebut plaintiff's claims that the Sharmas took him out of the Ashram to perform construction work late at night. They reason that "if the Sharmas were already paying trained professionals to do that work, they lack any motive to have an untrained amateur perform those same services." (Def.Mot.20.) It is not inconceivable, however, that defendants paid professionals to perform some work, while attempting to save money or speed the process by requiring plaintiff to perform other work. The documents in question would therefore not even contradict plaintiff's testimony.

b. Expert Witness Testimony

Defendants next complain that counsel did not introduce evidence from an expert witness. Defendants argue that because plaintiff testified that certain tasks made him miserable or were performed only because defendants required it, trial counsel should have called an expert witness on the duties of Hindu priests who would have testified that the tasks in question were not unusual. Defendants provide an affidavit from Pardeep Sharma, who states that he is a Hindu priest and who further states that tasks such as cleaning deities, visiting devotees' homes, and conducting services until late at night are standard for Hindu priests. (Def.Mot., Ex. H.)

*9 The fact that certain tasks are frequently performed by Hindu priests does not show that plaintiff was not forced to perform them through threats of serious harm or the abuse of legal process. And although the testimony from an expert witness might have aided the jury in evaluating plaintiff's testimony, this Court is left only to speculate about precisely how helpful it would have been to defendants' case. Perhaps counsel concluded that such testimony would not stand up to cross-examination, or that it might contain other revelations that would do more harm on balance. The absence of one-sided expert testimony, considered in the abstract, is not enough to warrant a new trial.

c. Email Addresses and Penis Enlargement Pills

Trial counsel's failure to introduce evidence that plaintiff had more than one email address and that plaintiff used one email address to purchase "penis enlargement pills" also did not lead to a seriously erroneous result or a miscarriage of justice. Defendants argue that this evidence would rebut plaintiffs allegation that he was too "mortally scared" to leave the Ashram. Apparently, defendants' argument is that if plaintiff was too scared to leave the Temple, he should also have been too scared to order sexual material, like penis enlargement pills.

Even if this logically followed, defendants did submit evidence showing that plaintiff had ordered pornographic movies, (Tr. 564), and called sexually explicit (900) phone numbers, (Tr. 781-82, 784). Accordingly, even if the email addresses and penis enlargement pills were somehow relevant, this evidence would be little more than cumulative. The jury obviously was not persuaded that this type of evidence undermined plaintiffs claims. A new trial is not warranted on this basis.

3. Trial Counsel's Cross-Examination

Defendants argue that a new trial is warranted because trial counsel "failed to adequately cross-examine the plaintiff on the inconsistencies between plaintiff's trial testimony and his deposition." (Def.Br.21.) Defendants do not indicate precisely which deposition testimony counsel should have cross-examined plaintiff about. Defendants do make reference to their prior argument about plaintiff's allegedly perjured testimony. But the only arguable inconsistency noted in this section between plaintiffs deposition and trial testimony involved the amount of his salary. As already stated, it is not clear that such statements were in fact inconsistent or even misleading. Even assuming defendants could move for a new trial on this ground, the Court finds that trial counsel's cross-examination did not lead to a seriously erroneous result or a verdict that is a miscarriage of justice.

4. Plaintiff's Credibility

Defendants next attack the verdict on the ground that plaintiffs testimony was generally not credible. They point to a series of facts that they believe severely undermine plaintiff's claim that he was "mortally scared." First, they argue that plaintiff's claim that he was afraid to call for help on the phone because he believed Geeta Sharma was eavesdropping is undermined by (a) his admission that he did not think she listened to every phone call; (b) that he did not know how Geeta Sharma was recording his phone calls; and (c) that he had at least one email address, so he could have emailed for help. Second, they argue that plaintiff's claim that he was scared to call for help is undermined by the fact that plaintiff did indeed complain about some of the conditions in the Temple to another devotee, Arish Sahani, who testified at trial. Third, they argue that plaintiff's alleged fear to go to the Indian Embassy is undermined by the fact that he did in fact go to the U.S. Attorney's Office and the police, and that surely he would have been more comfortable going to the Indian Embassy given his English language deficiency.

*10 Fourth, defendants complain that it is implausible that plaintiff would report his stolen passport to the authorities but not also tell them that he was subject to forced labor. Fifth, they again argue that ordering adult films and dialing (900) sex numbers is inherently inconsistent with being subjected to forced labor. Sixth, they argue that the fact that plaintiff, according to his testimony, was aware of the "freedoms and liberty" available in the United States makes it implausible that he would be scared to seek help. And lastly, they argue that plaintiffs decision finally to leave the Temple was in fact motivated by the installation of a security camera designed to thwart his independent astrology business.

These inconsistencies are not nearly as damning as defendants suggest. Each is targeted primarily at one isolated (and translated) phrase—"mortally scared"— which defendants apparently take as plaintiffs assertion that he was at all times between 2003 and 2007 paralyzed with fear. The Court does not find the phrase "mortally scared," when compared with the remainder of plaintiffs testimony, so troubling. Indeed, the purportedly uncomfortable inconsistencies pointed to by defendants could just as easily be seen as forthright qualifications of plaintiff's assertion of "mortal fear." The jury, apparently, read them this way, for it credited plaintiffs testimony. The Court sees no reason to upset the jury's considered judgment.

5. Weight of the Evidence

Defendants next ground for a new trial is that the verdict is against the weight of the evidence. It is well-recognized that a district court has discretion to order a new trial on this ground. Byrd v. Blue Ridge Rural Elec. Co-op., Inc., 356 U.S. 525, 540, 78 S.Ct. 893, 2 L.Ed.2d 953 (1958). Defendants argue (a) that two witnesses saw plaintiff with his passport at certain times and that two others saw the passport in the Temple with statues of Hindu deities; (b) that plaintiff's room was larger than he alleged, that he had another living quarters, and that no pipe was protruding from the wall; and (c) that plaintiff was paid for his work because he signed a ledger each month indicating that he had received his salary, and that his family in India did indeed receive their half of his salary.

These arguments are little more than recapitulations of those discussed above, and again the evidence pointed to by defendants is far less compelling than they suggest. As to the passport, none of the individuals who allegedly saw plaintiff's passport provided direct evidence that it was in fact plaintiff's passport. As to plaintiffs living quarters, another witness, Priya Sood, corroborated plaintiff's estimate on the size of the room, (Tr. 516), and Ron Luther's assertion that plaintiff had another apartment upstairs was mostly surmise (Tr. 608). And as to whether plaintiff received a salary, the defendants' circumstantial evidence is simply not enough to upset the jury's decision that plaintiff's account at trial was the truthful one.

6. Jury's Verdict

*11 Finally, defendants argue that a new trial is required because the jury's verdicts are internally inconsistent. The jury found by a preponderance of the evidence that defendants had committed forced labor in violation of 18 U.S.C. § 1589 and had trafficked plaintiff for involuntary servitude or forced labor, in violation of 18 U.S.C. § 1590. The jury also found, however, that plaintiff libeled defendants by making oral statements to Kathianne Bonniello of the New York Post and George Joseph of India Abroad, which were subsequently published by those newspapers, including:

Although a party may challenge inconsistent general verdicts on the ground of an alleged error in the trial court's jury instructions,2 see Jarvis v. Ford Motor Co., 283 F.3d 33, 56 (2d Cir.2002), many courts have expressed doubt whether the inconsistency of a civil verdict itself is grounds for a new trial. In re Vivendi Universal Sec. Litig., 765 F.Supp.2d 512, 554 n. 33 (S.D.N.Y.2011) (collecting cases). Compare Zhang v. American Gem Seafoods, Inc., 339 F.3d 1020, 1035 (9th Cir.2003) ("We have found no Supreme Court or Ninth Circuit case in which an appellate court has directed the trial court to grant a new trial due to inconsistencies between general verdicts, and Ninth Circuit precedent dictates that we cannot do so."); Merchant v. Ruhle, 740 F.2d 86, 91 (1st Cir.1984) ("We subscribe . . . to a substantial reluctance to consider inconsistency in civil jury verdicts a basis for new trials."); Malm v. U.S. Lines Co., 269 F.Supp. 731, 731-32 (S.D.N.Y.1967) ("Inconsistent jury verdicts upon different counts or claims are not an anomaly in the law, which at times recognizes a jury's right to an idiosyncratic position, provided the challenged verdict is based upon the evidence and the law."), with Diamond Shamrock Corp. v. Zinke & Trumbo, Ltd., 791 F.2d 1416, 1423 (10th Cir.1986) (recognizing that facially inconsistent general verdicts may be grounds for a new trial); Will v. Comprehensive Accounting Corp., 776 F.2d 665, 677 & n. 5 (7th Cir.1985) (same).

In any event, it is clear to this Court that if it does have the authority to order a new trial on this ground, it also has the duty to "adopt a view of the case, if there is one, that resolves any seeming inconsistency." Cf. Brooks v. Brattleboro Mem'l Hosp., 958 F.2d 525, 529 (2d Cir.1992); Munafo v. Metro. Transit Auth., 381 F.3d 99, 105 (2d Cir.2004) ("To justify setting aside an otherwise valid jury verdict, the special verdict answers must be `ineluctably inconsistent.'")

The jury's verdicts are not without tension, but the Court finds that they can be harmonized. First, although trafficking and forced labor are often described as "modern slavery," e.g. United States Dept of State, What is Modern Slavery, http://www.state.gov/g/tip/what/ index.htm (last visited January 22, 2012), a reasonable juror's conception of slavery may not be perfectly congruent with the conduct proscribed by the TVPA. As defendants point out, a "slave" is traditionally understood as "a person held in servitude[;] one that is the chattel of another," Webster's Third New International Dictionary 2139 (3d ed.1986). The latter half of this definition connotes the atrocity of holding an individual as property, a practice sadly familiar to anyone with even a passing knowledge of American history, and one that continues today, see United States Dept of State, Trafficking in Persons Report 2011, at 19 (2011), available at http://www.state.gov/documents/ organization/164452.pdf ("People are bought and sold as commodities within and across borders to satisfy demand from buyers."). But liability under § 1589 does not require that the victim be the defendant's chattel. That is, liability does not require that the victim be the defendant's property in the sense that he was purchased by defendants or that he could have been marketed or sold by defendants to another. The jury could have seized on this distinction in rendering its verdicts.

*12 Accordingly, defendants are not entitled to a new trial.

III. Motion for a New Trial as to Damages, or for Remittitur

Defendants also challenge the damage awards in this case. As explained above, the jury awarded compensatory damages of $250,000.00 total on the forced labor claim, compensatory damages of $750,000.00 total on the trafficking claim, and punitive damage awards on the trafficking claim of $750,000.00 against both Geeta and Sat Sharma and $1 million against the Ashram. Defendants argue that the compensatory damage awards —$250,000.00 for the forced labor claim and $750,000.00 for the trafficking claim—are duplicative of each other, and that, in any event, both the compensatory and punitive damage awards are excessive. The Court does not find that the compensatory damage awards are duplicative or excessive, but does find remittitur appropriate on the punitive damage awards.

1. Duplicative Compensatory Damages

Defendants argue that the Court must conduct a new trial on damages because the "compensation for the alleged violation of the forced labor statute essentially compensates for the same injuries that were the result of the alleged violation of the trafficking statute." (Def.Br.40). For three reasons defendants' argument fails.

First, despite ample opportunity, defendants did not object to the jury instruction or verdict form, nor did they object to the jury's verdict after it was rendered and before the jury was discharged. Their objection is therefore waived. See Bseirani v. Mashie, 1997 WL 3632, at *1 (2d Cir.1997) ("By not objecting to the instructions . . . or requesting that the jury be questioned before being discharged, [defendant] has waived the argument that the damages are duplicative.").

Second, the Court specifically warned the jury not to duplicate its award:

Accordingly, the Court's instruction was not improper.

Third, there is at least "a hypothetical scenario on which the damages are not duplicative," see Bseirani, 1997 WL 3632, at *2. As the jury was instructed, the trafficking claim involves the extra requirement that the defendant "harbored" the victim. As such, the jury could have rationally split the harms for forced labor and trafficking into those flowing from the services obtained through defendants' compulsion and those flowing from the conditions of harboring to which plaintiff was subjected, both of which were supported by record evidence. This would explain why the two compensatory damage awards were not the same values, as one might expect if the jury had considered the injuries for both counts to be the same.

*13 This is not a case in which one, indivisible injury is compensable through alternate legal theories. Accordingly, even if defendants have not waived their duplication argument, the Court is confident that its instruction properly warned the jury and that, at worst, the jury rationally divided several years' of harm across somewhat overlapping claims. See Bender v. City of New York, 78 F.3d 787, 794 (2d Cir.1996) ("In some cases, seemingly duplicative awards made separately for overlapping causes of action or against different defendants have been sustained where it appeared that the jury intended to award the aggregate sum.").

2. Amount of Compensatory Damages

Defendants next seek a new trial or conditional remittitur. A district court may, consistent with the Seventh Amendment, either order a new trial or order a conditional remittitur, "giv[ing] the plaintiff the choice of voluntarily remitting his award to a set lesser amount in lieu of a new trial." Thomas v. iStar Fin., Inc., 652 F.3d 141, 146 (2d Cir.2011). "Where there is no particular discernible error," as is true here, "a jury's damage award may not be set aside as excessive unless the award is so high as to shock the judicial conscience and constitute a denial of justice." Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 165 (2d Cir.1998).

The Court's instruction on compensatory damages was as follows:

Defendants are likely correct that most, if not all, of the $1 million compensatory damage award in this case is for pain and suffering, mental anguish, shock, and discomfort because the record evidence would not otherwise support such a substantial recovery. As a general matter, such damages include "fright, nervousness, grief, anxiety, worry, mortification, shock, humiliation, indignity, embarrassment, apprehension, terror, or ordeal." 22 Am.Jur.2d Damages § 201. Courts and commentators have long recognized that "the law does not provide a precise formula by which pain and suffering and emotional distress may be properly measured and reduced to monetary value," Sulkowska v. City of New York, 129 F.Supp.2d 274, 308 (S.D.N.Y.2001), and the Second Circuit has indicated its willingness "to uphold substantial damage awards [for mental distress] where warranted," Ismail v. Cohen, 899 F.2d 183, 187 (2d Cir.1990).

*14 To determine whether an award is excessive, the Court must "look to other awards in similar cases" to ensure that the award is "within reasonable range." Sinkov v. Americor, Inc., 419 F. App'x 86, 93 (2d Cir.2011). As defendants point out, the TVPA's civil cause of action is too new to have generated a body of case law on damage awards. Defendants offer the Court two non-TVPA cases as reference points. In the first, Schramm v. Long Island R.R Co., 857 F.Supp. 255 (E.D.N.Y.1994), the court held that a $232,500.00 award for pain and suffering was excessive. The plaintiff had been struck in the head with a tree limb through the defendant's negligence. He suffered a concussion and ongoing symptoms related to "postconcussion syndrome," and he testified that his condition prevented him from fully enjoying his life." Id. at 258. In the second case cited by defendants, DiSorbo v. Hoy, 343 F.3d 172 (2d Cir.2003), the Second Circuit reduced a damage award of $400,000.00 to $250,000.00. Id. at 185-86. The plaintiff in that case sustained serious physical and psychological injury as a result of the defendants' use of excessive force and battery. Id.

These cases, which involve serious injury or indignity, are not wholly unhelpful, and the Court has identified similar federal and state cases with awards in a similar range. See Bender v. City of New York, 78 F.3d 787, 792 (2d Cir.1996) ($150,000 for blow to the mouth with no lasting physical injury, 24 hours' confinement, the pendency of criminal proceedings for six months, and sleep problems); Gardner v. Federated Dept. Stores, Inc., 907 F.2d 1348, 1353 (2d Cir.1990) ($150,000 for psychiatric issues including personality change arising from false imprisonment and battery by department store security guard); Bert v. Port Auth. Of N.Y. & N.J., 166 A.D.2d 351, 561 N.Y.S.2d 416 (1st Dept 1990) ($100,000 for 3.5 hour detention and humiliation in front of family).

Another helpful line of cases contains awards in a slightly higher range for mental anguish resulting from lengthy and concerted harassment. See Town of Hempstead v. State Div. of Human Rights, 233 A.D.2d 451, 649 N.Y.S.2d 942 (2d Dep't 1996) ($500,000 for nine months of extreme sexual harassment); Tiffany & Co. v. Smith, 224 A.D.2d 332, 638 N.Y.S.2d 454 (1st Dept 1996) ($300,000 under state human rights law for "constant, egregious, and blatant conduct"); Quinn v. Nassau County Police Dept, 53 F.Supp.2d 347, 362 (E.D.N.Y.1999) ($250,000 for nine years' sexual orientation discrimination, including tormenting plaintiff with pornographic cartoons and making anti-gay remarks); Hughes v. Patrolmen's Benev. Ass'n of City of N.Y. Inc., 850 F.2d 876 (1988) ($225,000 for sustained harassment and adverse employment decisions over a period of two years).

Based on these two lines of cases, the Court cannot conclude that the jury's $1 million verdict was unreasonable. The plaintiff in this case was subject to the conduct for which defendants are liable for far longer than in the line of cases cited by defendants, which generally involve discrete, relatively brief incidents. The jury in this case predominantly awarded pain and suffering damages not for proximate symptoms that degrade one's enjoyment of the remainder of life-conditions like post—traumatic stress disorder—but for the humiliation, indignity, and ordeal directly inflicted over three-and-one-half years of compelled labor. Accordingly, one would expect pain and suffering damages in this case to be substantially higher than the several hundred thousand dollar awards in the first line of cases.

*15 And one would also expect a larger award here than in the second line of cases, which do involve a longer course of conduct by the defendants. That is because the harms inflicted by even extreme workplace harassment, although obviously serious, are not as grave as the extraordinary indignity of compelled labor. Even if the jury's award was for only pain and suffering, mental anguish, shock, and discomfort for the roughly 1300 days of defendants' conduct, compensation would work out to under $800 per day. Given the difficulty of affixing a mathematical value to such injuries, the Court cannot find that this result is unreasonable.

3. Amount of Punitive Damages

Finally, defendants move for a new trial or remittitur as to the jury's $2.5 million award of punitive damages. As with compensatory damages, courts must not disturb a jury award unless it "shocks the judicial conscience." Paterson v. Balsamico, 440 F.3d 104, 120 (2d Cir.2006). This inquiry is guided by the three factors identified by the Supreme Court in BMW of North America., Inc. v. Gore, 517 U.S. 559, 575, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996): "(1) the degree of reprehensibility of the tortious conduct; (2) the ratio of punitive damages to compensatory damages; and (3) the difference between this remedy and the civil penalties authorized or imposed in comparable cases." In addition to the Gore factors, district courts must consider the financial circumstances of the defendants. Paterson, 440 F.3d at 121. As the Second Circuit has recognized, "one purpose of punitive damages is deterrence, and that deterrence is directly related to what people can afford to pay." Id. at 122. Accordingly, a punitive damage award that "result[s] in the financial ruin of the defendant" cannot stand.

The first Gore factor, the reprehensibility of the defendant's conduct, is "[p]erhaps the most important indicium of the reasonableness of a punitive damages award." Gore, 517 U.S. at 575. This "reflects the accepted view that some wrongs are more blameworthy than others." Id. Forced labor is, of course, extremely reprehensible. This would ordinarily favor a very large punitive damage award. But this case is an unusual one, because here the jury found both that defendants were liable for forced labor and trafficking and that plaintiff had libeled defendants. This result can be reconciled only by concluding that the jury found each element of forced labor and trafficking satisfied, but found that plaintiffs description of defendants' conduct as "enslavement" was overstated to the point that it injured defendants. Given this, the first Gore factor does not weigh as strongly in favor of the $2.5 million award as it otherwise might.

The second Gore factor is the ratio of punitive to compensatory damages, which in this case is 2.5:1. The Supreme Court has been "reluctant to identify concrete constitutional limits" for the ratio of punitive to compensatory damages. State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 424, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003). It has recognized that an important consideration in determining whether the ratio is permissible in a given case is the size of the compensatory damage award. Id. at 425. That is, although a higher ratio may be appropriate where "a particularly egregious act has resulted in only a small amount of economic damages," "[w]hen compensatory damages are substantial, then a lesser ratio, perhaps only equal to compensatory damages, can reach the outermost limit of the due process guarantee." Id. The $1 million compensatory damage award in this case is quite substantial. As such, the 2.5:1 ratio seems excessive and a 1:1 ratio would appear more appropriate. See Thomas v. iStar Fin., Inc., 652 F.3d 141, 146 (2d Cir.2011) (affirming district court's conclusion that 1:1 ratio was appropriate because of substantial $190,000 compensatory damage award).

*16 The third Gore factor considers the "difference between this remedy and civil penalties authorized or imposed in comparable cases." Just as above, this inquiry is a difficult one because of the dearth of reported awards under the TVPA. But the Court cannot find, and plaintiff has not cited, analogous case law imposing a punitive damage award as enormous—both generally and in proportion to the compensatory damage award—as that returned by the jury here. The sorts of harassment and discrimination verdicts that the Court used as reference points above generally impose punitive damage awards in the range of $50,000 to $300,000. See Ortiz—Del Valle v. National Basketball Ass'n, 42 F.Supp.2d 334 (S.D.N.Y.1999) (remitting $7,000,000 award to $250,000); Tse v. UBS Fin. Servs., Inc., 568 F.Supp.2d 274 (S.D.N.Y.2008) (remitting $3,000,000 award to $300,000); Manzo v. Sovereign Motor Cars, Ltd., 2010 WL 1930237 (E.D.N.Y.2010) (upholding $200,000 award); see also Thomas v. iStar Fin., Inc., 508 F.Supp.2d 252, 263 (S.D.N.Y.2007) (noting $50,000 to $300,000 punitive damage cap in Title VII claims). Accordingly, even after accounting for the greater reprehensibility of defendants' conduct in this case, a $2.5 million punitive damage award is excessive.

Lastly, the Court must consider the defendants' financial circumstances. Although it is true that "it is the defendant's burden to show that his financial circumstances warrant a limitation of the award," Paterson, 440 F.3d at 122, and although the evidence in the record on this issue is not extensive, the Court thinks it is sufficient to establish that the individual defendants and the Ashram are of modest means. Sat Sharma owns a construction business, is the sole stockholder in another corporation called De—Temps, Inc. (the nature of the corporation's business does not appear in the record), and owns a small property in upstate New York. (Tr. 911). Geeta Sharma has no independent income. (Tr. 1018). The Ashram, for all it appears, has always struggled to remain afloat. (Tr. 796, 992-93). In short, the Court has every reason to believe that the massive punitive damage awards returned by the jury would cause financial ruin to the individual defendants and the Ashram. In such circumstances, remittitur is appropriate. Id. at 122.

In sum, the Gore factors and defendants' financial circumstances indicate that the $2.5 million award of punitive damages is excessive. The awards against all three defendants are reduced by $500,000. The result is a punitive damage award of $250,000 against Sat Sharma; $250,000 against Geeta Sharma; and $500,000 against the Ashram. This award is certainly sufficient to deter similar conduct by these or similarly situated individuals, and the resulting 1:1 ratio of punitive to compensatory damages comports with due process. Plaintiff may either elect to accept the remitted award or the Court will hold a new trial on punitive damages.

Conclusion

*17 For the reasons stated above,

SO ORDERED.

Attorneys and Law Firms

George S. Freedman, Sarah S. Clutts, Lester Loving & Davies PC, Edmond, OK, for Plaintiffs.

Eric A. Moen, Gus H. Buthman, Shawnae E. Robey, University of Oklahoma Office of Legal Counsel, Norman, OK, Jason S. Boulette, Joshua W. Solberg, Spencer F. Smith, Steven H. Garrett, Boulette & Golden LLP, Austin, TX, Heidi J. Long, James E. Warner, III, Holladay Chilton & Degiusti, Oklahoma City, OK, for Defendants.

AMENDED ORDER1

DAVID L. RUSSELL, District Judge.

*1 This matter comes before the Court on the Motion to Dismiss, filed by Defendant William Hildebrand pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6). (Doc. No. 21). Plaintiffs responded in opposition to the motion. Having considered the parties' submissions, the Court finds as follows.

Plaintiffs filed a Complaint asserting they are Serbian nationals hired by the University to serve as research assistants at the Health Sciences Center. Complaint ¶ 1. Plaintiffs allege Defendant Hildebrand is an employee of the University and the owner, operator and CEO of Defendant Pure Protein, LLC. Complaint ¶ 4. Plaintiff Danijela Mojsilovic contends she began working for the University in January 2007 through the Optional Practical Training Visa program, and was retained under the H1B Visa program in May 2007, which she continued until June, 2014. Plaintiff Aleksander Mojsilovic alleges he started work in the same optional program in October, 2006 and was retained in the H1B Visa program in August 2007, which continued until June, 2014. Complaint ¶¶ 12-13. Both Plaintiffs allege they were retained to work in a medical research lab under the direction of Defendant Hildebrand. Complaint ¶ 16. Plaintiffs allege that shortly after beginning work for the University, Defendant Hildebrand demanded that in addition to their work on behalf of the University, that both Plaintiffs perform work for Defendant Pure Protein. Complaint ¶ 17. Plaintiffs allege that although Defendant Hildebrand assured Plaintiffs they would be compensated for the work performed on behalf of his private company, which leased laboratory space from the University, that he failed to do so. Complaint, ¶¶ 15, 18. Plaintiffs contend that Defendant Hildebrand required that their work on behalf of Pure Protein be in addition to the number of hours provided for by their contracts with the University, and therefore, "[b]ecause Defendant Hildebrand required Plaintiffs to work for both Defendant University and Defendant Pure Protein, Plaintiffs worked far in excess of forty (40) hours per week." Complaint ¶ 21. They allege Defendant Hildebrand, as their supervisor at the University, had the ability to exercise nearly total control over their employment terms and conditions, that he was authorized to hire, fire or modify the conditions of employment, and that he used his supervisory authority to force Plaintiffs to work on behalf of his personal company or to face deportation upon threat of termination. Complaint ¶¶ 26-27. Plaintiffs allege that Defendant Hildebrand became verbally abusive and threatened deportation or revocation of their work visas when they inquired why they had not been paid for all of the hours worked. Complaint ¶ 29-30. Plaintiffs allege violation of: (1) the Fair Labor Standards Act, because they were not paid overtime (Count I); (2) the Trafficking Victim Protection Reauthorization Act ("TVPRA"), 18 U.S.C. § 1589 (forced labor) (Count II); (3) the TVPRA, 18 U.S.C. § 1590 (trafficking into servitude) (Count III); and (4) the Oklahoma Protection of Labor Act, Okla. Stat. tit. 40 § 165.1 et seq.("OPLA"), for failing to timely pay Plaintiffs wages because they were not paid for all work performed.

*2 Defendant Hildebrand contends he is entitled to dismissal pursuant to Federal Rule of Civil 12(b)(1), because he is entitled to Eleventh Amendment immunity, all claims against him having been pled under the theory that he was acting within the scope of his employment with the University. He further argues that Plaintiffs have failed to state a claim against him under the FLSA, the TVPRA or the OPLA.

The caption of the case indicates that Defendant Hildebrand is sued in his individual capacity, despite the fact that he is alleged to have taken these actions in the context of his employment with the University. The University is entitled to sovereign immunity; this immunity, however, does not carry over to an employee sued in his individual capacity. Scheuer v. Rhodes, 416 U.S. 232 (1974); Cornforth v. University of Oklahoma Bd. of Regents, 263 F.3d 1129, 1132 (10th Cir.2001). As such, Defendant Hildebrand is not entitled to dismissal of any claims on the basis of Eleventh Amendment immunity.

Defendant Hildebrand further contends that Plaintiffs have failed to state a claim for which relief can be granted, thus mandating dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to `state a claim for relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The Court assumes "the factual allegations are true and ask[s] whether it is plausible that the plaintiff is entitled to relief." Gallagher v. Shelton, 587 F.3d 1063, 1068 (10th Cir.2009). "[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678.

With regard to Plaintiffs' FLSA claim, Defendant Hildebrand argues that Plaintiffs have failed to sufficiently allege facts to support their allegation that he was their "employer." The FLSA defines "employer" as including "any person acting directly or indirectly in the interest of an employer in relation to an employee." 29 U.S.C. § 203(d). Many courts have held that individual supervisors can be liable under the Act. The FLSA broadens the definitions of employer and employee beyond "strict application of traditional agency principles." Baker v. Flint Engineering & Const. Co., 137 F.3d 1436, 1440 (10th Cir.1998). The FLSA focuses instead on "the economic realities of the relationship" between the employee and the employer, and includes evaluating such factors as "whether the alleged employer has the power to hire and fire employees, supervises and controls employee work schedules or conditions of employment, determines the rate and method of payment, and maintains employment records." Id. The Court finds that Plaintiffs have sufficiently alleged that Defendant Hildebrand was their employer for FLSA purposes. Plaintiffs allege that Defendant Hildebrand demanded they perform work on behalf of Pure Protein, that he promised to ensure payment for such work but failed to do so, that he demanded this work be performed after completion of the hours required by their contract with the University, and that he abused his role as laboratory director to condition Plaintiffs' continued employment with the University on their completion of work, without pay, for Pure Protein. Plaintiffs also allege that Defendant threatened termination, which would have resulted in deportation. Plaintiffs also allege Defendant Hildebrand threatened their immigration status and employment when they had arranged holiday travel and vacation plans. They allege he was the person responsible for assisting with their immigration paperwork, and they feared he would negatively impact their status if they did not continue their unpaid work on behalf of Pure Protein. All this combined with Defendant Hildebrand's unique position as Department Chief at the University and alleged owner/operator of Pure Protein, the Court finds that Plaintiffs have sufficiently alleged that he violated the FLSA by failing to ensure payment received for work in excess of forty hours, by asserting that they worked their contractual forty hours, and additional unpaid time, as demanded by Defendant Hildebrand. Consequently, the Court finds the allegations are sufficient to state a claim against Defendant Hildebrand for violation of the FLSA.

*3 Defendant Hildebrand next argues that Plaintiffs have failed to state a claim under the TVPRA. Defendant Hildebrand first contends he is entitled to immunity pursuant to the Oklahoma Governmental Tort Claims Act ("GTCA"). The Court concludes that the Act does not modify Defendant Hildebrand's obligations under federal law, much like it does not apply to claims against individual-capacity claims against state employees under 42 U.S.C. § 1983. See Tiemann v. Tul-Ctr., Inc., 18 F.3d 851, 853 (10th Cir.1994).

Defendant Hildebrand next contends that Plaintiffs' TVPRA claims are subsumed in their FLSA claims. The Tenth Circuit in Francisco v. Susano, 525 Fed.Appx. 828 (10th Cir.2013), considered the availability of damages under the TVPA, the precursor to the TVPRA, in the presence of FLSA claims. The court concluded that non-economic compensatory and punitive damages were available under the TVPA. Id. at 835. As such, the Court concludes that in this Circuit, the FLSA claims do not preempt all attempts to recover under the TVPRA.

Defendant Hildebrand argues that Plaintiffs have failed to sufficiently allege their claim for forced labor, because threats of deportation or withholding pay do not state a claim under the statute. As the Court interprets Plaintiffs' claims, they allege that Defendant Hildebrand, who had the authority to terminate Plaintiffs from their contracts with the University, which would have implicated their visa status, threatened termination if they did not perform uncompensated work for the entity that he allegedly owned. Despite Defendant Hildebrand's arguments, the Court finds that the alleged threat is sufficient to state a claim.

The threat of deportation "can constitute serious harm to an immigrant within the meaning of the forced labor statute." United States v. Rivera, No. 09-0CR-619 (SJF), 2012 WL 2339318, at *5 (E.D.N.Y. June 19, 2012). It also "`clearly falls within the concept and definition of "abuse of legal process"'" when "`the alleged objective for such conduct was to intimidate and coerce [Plaintiff] into forced labor.'" Antonatos v. Waraich, No. 1:12-cv-1905-JMC, 2013 WL 4523792, at *5 (D.S.C. Aug. 27, 2013) (quoting Nunag-Tanedo v. E. Baton Rouge Parish Sch. Bd., 790 F.Supp.2d 1134, 1146 (C.D.Cal.2011) (internal citations omitted)). Indeed, "[t]he threat of deportation alone may support a claim for forced labor." Aguirre v. Best Care Agency, Inc., 961 F.Supp.2d 427, 444, 2013 WL 4446925, at *12 (E.D.N.Y. Aug. 16, 2013); see Calimlim, 538 F.3d at 713; United States v. Alstatt, 858 F.Supp.2d 1032, 1041 (D.Neb.2012) ("A threat of deportation which causes involuntary servitude may be sufficient."). The United States Supreme Court has noted that "threatening . . . an immigrant with deportation could constitute the threat of legal coercion that induces involuntary servitude, even though such threat made to an adult citizen of normal intelligence would be too implausible to produce involuntary servitude." United States v. Kozminski, 487 U.S. 931, 948, 108 S.Ct. 2751, 101 L.Ed.2d 788 (1988).

*4 Elat v. Ngoubene, 993 F.Supp.2d 497 (D.Md.2014). As noted by the court in Camayo v. John Peroulis & Sons Sheep, Inc., 2012 WL 4359086, at *5 n. 6 (D.Colo. Sept. 24, 2012), "the question of whether statement and actions by an employer [constitute an abuse of the legal process] must be viewed in light of all the surrounding circumstances, and thus resolution of whether a certain statement amounts to an abuse of the legal process is one that is particularly difficult on the sparse record of a motion to dismiss." Furthermore, for purposes of a TVPRA claim, "`[s]erious harm' includes threats of any consequences, whether physical or non-physical, that are sufficient under all of the surrounding circumstances to compel or coerce a reasonable person in the same situation to provide or to continue providing labor or services." Aguirre v. Best Care Agency, Inc., 961 F.Supp.2d 427, 443 (E.D.N.Y.2013) (citation omitted). "`Abuse of the law or legal process' is the use of threats of legal action, whether administrative, civil, or criminal, in any manner or for any purpose for which the law was not designed in order to coerce someone into working against that person's will." Id. at 444 (citation omitted).

With regard to Plaintiffs' claim under 18 U.S.C. § 1590, the Court finds that Plaintiffs have failed to allege sufficient facts to state a cause of action. Section 1590 provides that anyone who "knowingly recruits, harbors, transports, provides, or obtains by any means, any person for labor or services in violation of" the statutes prohibiting slavery, forced labor or involuntary servitude, is guilty of trafficking. 18 U.S.C. § 1590(a). With regard to Defendant Hildebrand, Plaintiffs present no facts to support their theory that he recruited, harbored, transported or obtained Plaintiffs as required by § 1590. See Shuvalova v. Cunningham, 2010 WL 5387770, *4 (N.D.Cal. Dec. 22, 2010); Martinez v. Calimlim, 651 F.Supp.2d 852 (E.D.Wis.2009)(listing elements of a § 1590 claim to include "knowingly recruited, harbored, transported, provided or obtained a person for labor."). As noted by Defendants, the Plaintiffs allege they were recruited by the University. They make no allegations regarding Defendant Hildebrand with regard to their initial decision to accept the offer of employment at the University and travel to Oklahoma. Plaintiffs's 18 U.S.C. § 1590 claims are hereby dismissed.

Finally, Defendant Hildebrand contends Plaintiffs have failed to state a claim under Oklahoma's wage statute, Okla. Stat. tit. 40 § 165, for the same reasons Plaintiffs' FLSA claim fails. The Court, however, has concluded that Plaintiffs have sufficiently alleged facts in support of their FLSA claim, and therefore, the motion to dismiss is denied in this regard.

For the reasons set forth herein, Defendant Hildebrand's motion to dismiss is granted in part and denied in part.

IT IS SO ORDERED.

Attorneys and Law Firms

Nelson George Alston, Alston Law Firm, LLC, Aurora, CO, for Plaintiff.

Austin E. Smith, David Daniel Powell, Jr., Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Denver, CO, for Defendant.

ORDER

PHILIP A. BRIMMER, District Judge.

*1 This matter is before the Court on the Motion for Summary Judgment [Docket No. 38] filed by defendant Lockheed Martin Corporation ("Lockheed Martin"). The motion is fully briefed and ripe for disposition.

I. BACKGROUND1

This case arises out of plaintiff Cortez Cox's employment with Lockheed Martin. Mr. Cox, who is African American, worked for Lockheed Martin from March 22, 1993 until his termination on January 12, 2011. Mr. Cox began his employment as a quality inspector and was promoted to quality assurance senior engineer in December 2005.

As a Lockheed Martin employee, Mr. Cox was required to participate in the company's Performance Management ("PM") process. The PM process allows Lockheed Martin to measure an employee's yearly performance against the employee's own objectives and those provided by management. The PM process requires that all Lockheed Martin employees enter two sets of objectives into a database called LMPeople. First, employees are required to provide a list of personal objectives they hope to accomplish during the calendar year. Second, employees must choose objectives to complete from a "flow-down" list provided by Lockheed Martin's managers.

For his 2009 personal objectives, Mr. Cox stated that he would attempt to "remain current [with his] required training and complete [his] time card before the end of the week." Docket No. 38-11 at 2. After reviewing these personal objectives, Chris Fortin, a quality assurance manager, informed Mr. Cox that his objectives for the 2009 calendar year were inadequate and requested that Mr. Cox input additional objectives. Id. at 3. Mr. Cox declined to provide additional objectives and stated that he had his "objectives listed." Id. at 3-4.

On April 1, 2009, Amy Gawlik, a human resources ("HR") business partner, spoke with Kelly Triplett, a manager in HR, about Mr. Cox's reluctance to provide additional objectives. Id. Ms. Triplett told Ms. Gawlik to enter Mr. Cox's objectives for 2009 with the help of a quality assurance manager and schedule a subsequent meeting with Mr. Cox to implement necessary changes. Id. On April 2, 2009, Ms. Gawlik sent Mr. Cox an email advising him that she had made changes to his PM process file. Id. On April 6, 2009, Mr. Cox requested that Ms. Gawlik remove all the changes. As a result, no further changes were made to Mr. Cox's PM process file for the 2009 calendar year. Id. at 5-6.

In addition to the PM process, Lockheed Martin conducts an individualized Performance Assessment and Development Review ("PADR") for all of its employees at the end of the calendar year. See Docket Nos. 38-12, 38-19. For the 2009 calendar year, Jeanne Kerr, a quality assurance manager, conducted Mr. Cox's PADR. Docket No. 38-12; Docket No. 38-15. In the PADR, Ms. Kerr concluded that Mr. Cox was a "Successful Contributor" and a "competent performer and valued team player, who meets the objectives and expectations of [his] position" based on his technical performance. Docket No. 38-12 at 1. However, with respect to non-technical aspects of his employment, Ms. Kerr noted that Mr. Cox was "difficult to communicate with and refuse[d] to follow clearly communicated corporate command media requirements." Id. Specifically, Ms. Kerr found that Mr. Cox refused to attend weekly staff meetings—including mandatory meetings—and found that his "behavior associated with the Performance Management (PM) process [in 2009] was unacceptable and in direct conflict with the Lockheed Martin performance attributes." Id. The PADR recommended, among other things, that Mr. Cox attempt to improve his interpersonal skills by attending organizational meetings, by responding to communications with management in a timely manner, and by including "objectives (those flowed down to him from management as a minimum)" when completing "the 2010 Performance Management process." Id.

*2 On December 10, 2009, Ms. Kerr and Mr. Fortin held a meeting with Mr. Cox to discuss his PADR. Docket No. 38-2 at 6 (Cox Dep. 64:10-18); Docket No. 38-15 at 1. During this meeting, Ms. Kerr and Mr. Fortin informed Mr. Cox that if he failed "to do what is identified in [the PADR's] areas of improvement," he could be subject to discipline, including placement on a personal improvement plan ("PIP").2 Docket No. 38-15 at 1.

On March 15, 2010, as part of the PM process, Ms. Kerr emailed flow-down objectives to her subordinates and asked them to enter both their personal and flowdown objectives by March 26, 2010. Docket No. 38-8 at 1. The flow-down list provided by Ms. Kerr identified five objectives all of her subordinates had to perform and allowed each employee to choose three additional objectives. Id. Mr. Cox did not include any of the objectives provided by Ms. Kerr in his PM process file. Docket No. 38-2 at 10 (Cox Dep. 84:9-20). Instead, Mr. Cox listed the same objectives he had in 2009, namely, keeping his training up to date and completing his timecard before the end of the week. Docket No. 38-3 at 1 (Cox Dep. 85:16-19). On March 26, 2010, Ms. Kerr told Mr. Cox that his flow-down objectives were inadequate and requested a meeting to discuss his objectives. Docket No. 38-13 at 1. This meeting, however, never took place. Docket No. 38-3 at 1 (Cox Dep. 86:5-14).

On May 6, 2010, Ms. Kerr contacted Mr. Cox to remind him that the objectives he listed in the PM Process did not meet her expectations. Docket No. 38-9 at 2. Ms. Kerr explained to Mr. Cox that all employees were expected to complete the PM process and that his failure to enter his objectives would result in a PIP. Id. On May 10, 2010, Ms. Kerr again reminded Mr. Cox that he was required to modify his PM objectives. Docket No. 38-14. On May 11, 2010, Mr. Cox responded to Ms. Kerr and told her that he did not attend the weekly meetings because he was subject to harassment at the meetings. Specifically, he stated that he and Mary Romero, a fellow employee, were called "the bugs" the last time he attended a weekly meeting.3 Docket No. 38-9 at 1. Mr. Cox also stated that he would never have a fair review at Lockheed Martin because management would find some reason to place him on a PIP. Id.

In June 2010, Tom Molloy replaced Ms. Kerr as Mr. Cox's manager. Docket No. 38-3 at 7 (Cox Dep. 144:16-18). On June 28, 2010, Mr. Molloy asked Mr. Cox to reenter his flow-down objectives for 2010. Docket No. 38-17 at 1-2. Mr. Molloy explained to Mr. Cox that every employee at Lockheed Martin was required to enter personal objectives as well as those that "flowed down from Senior Management." Id. In addition, Mr. Molloy told Mr. Cox that his current objective of timely completing his timecard did not qualify as a legitimate objective. Id. On July 14, 2010, Mr. Molloy also provided Mr. Cox with a copy of Lockheed Martin's Corporate Policy CPS-503, which indicates that employees are required to document information that flowed down from senior management in their PM process file. Docket No. 38-18 at 2. Mr. Cox told Mr. Molloy that he did not believe that CPS-503 required that he change his PM objectives. Id.

*3 On August 4, 2010, Ms. Burch met with Mr. Cox to discuss the incident during which he and Ms. Romero were called "the bugs." Docket No. 38-16 at 2. During this meeting, Mr. Cox told Ms. Burch that he had no confidence in management at Lockheed Martin and revealed that his participation in previous EEOP investigations had made his work conditions worse. Id. at 3. Ms. Burch's notes from the August 4, 2010 meeting also show that Mr. Cox believed that, although he was treated differently from other employees, it was "not a racial thing." Docket No. 38-16 at 5. Mr. Cox, however, disputes this fact and states that he told Ms. Burch that "Lockheed Martin had a culture where nonwhites were not accepted as part of the team no matter how good they were."4 Docket No. 43-1 at 2, ¶ 6.

On August 5, 2010, Mr. Molloy and Mandi Stites, senior manager of HR, met with Mr. Cox to discuss his flowdown objectives. Docket No. 38-18 at 2. Ms. Stites informed Mr. Cox that his failure to complete his PM objectives would result in charges of insubordination. Id. at 3. During the meeting, Mr. Cox chose not to sit down. Id.; see also Docket No. 38-3 at 9 (Cox Dep. 156:11-17). Mr. Molloy testified that Mr. Cox's refusal to sit down did not violate Lockheed Martin's policies, but the combination of him standing up, clenching his jaw, and unclenching his fist made other employees uncomfortable. Docket No. 43-12 at 2 (Molloy Dep. 43:17-21). Mr. Molloy, however, did not tell Mr. Cox that other employees were concerned about his behavior during meetings. Id. at 3 (Molloy Dep. 46:12-21, 48:3-10). Ms. Stites also testified that she thought it was disrespectful that Mr. Cox did not make eye contact during meetings. Docket No. 43-4 at 5 (Stites Dep. 95:12-24). However, Ms. Stites did not relay this information to Mr. Cox. Id.

On August 9, 2010, Mr. Cox met with Ms. Kerr and Mr. Molloy to discuss his flow-down objectives. Docket No. 38-18 at 3. According to Mr. Molloy's meeting notes, Mr. Cox again refused to include the flow-down objectives in his PM process file, refused to participate in a discussion about his performance expectations, and told Mr. Molloy and Ms. Kerr to place him on a PIP. Id. Mr. Cox states that he did not tell Ms. Kerr and Mr. Molloy to place him on a PIP. Docket No. 43-1 at 2, ¶ 10.

On September 24, 2010, Mr. Molloy and Ms. Stites informed Mr. Cox that he would be placed on a PIP. Docket No. 38-20. The PIP required Mr. Cox to, among other things, enter his flow-down objectives, identify at least three or more flow-down objectives in his PM process file, attend daily and weekly meetings with his group, and attend weekly PIP meetings with Mr. Molloy. Docket No. 38-22. According to Ms. Stites' meeting notes, Mr. Cox refused to sign the PIP and said that he would not honor the terms of the PIP.5 Id. In response, Ms. Stites informed Mr. Cox that, although he did not have to sign the PIP, he was expected to meet the objectives listed therein.6 Id.

*4 Later on September 24, 2010, Ms. Burch had a phone conversation with Mr. Cox. Docket No. 38-4 at 3 (Cox Dep. 180:19-25). Ms. Burch and Mr. Cox provide differing accounts of what happened. According to Ms. Burch's interview notes, Mr. Cox said that Mr. Molloy and Ms. Kerr "have no idea" what he does at work and that he "wouldn't be on this PIP" if they knew how much work he did. Docket No. 38-16 at 9. Ms. Burch's notes also indicate that Mr. Cox also said that he was getting nosebleeds, something was "killing [him] inside," and that one of these days he would be found "slumped over [his] desk." Id at 10. Mr. Cox also said that "[a] dog that has been beaten repeatedly will turn even on a good master. There's been no apology made to me for the way I've been treated . . . [and][e]very metal has a breaking point." Docket No. 38-16 at 11.

Mr. Cox denies making these statements on September 24, 2010. Docket No. 43-1 at 2-3, ¶¶ 13-16. Mr. Cox claims that he made the statements regarding the abused dog and metal's breaking point on August 4, 2010, and that the comment about the dog was an analogy about the effect that certain acts of defendant had on Ms. Romero. Docket No. 38-4 at 4 (Cox.Dep.194:23-195:10, 196:11-15). Mr. Cox denies stating that he has never received an apology for the way he was treated, but admits that he once told Ms. Burch that the pressures of his work caused him to have nosebleeds.7 Docket No. 43-1 at 2-3, ¶ 13. Because she was concerned about Mr. Cox's wellbeing, Ms. Burch testified that she told Monty Pierce, a Case Management Team ("CMT") member, that Mr. Cox appeared angry and was experiencing some health issues. Id. at 7 (Burch Dep. 73:8-12). CMT is responsible for dealing with individuals who are a risk factor to themselves or others. Docket No. 38-10 at 7 (Burch Dep. 74:13-18). Thereafter, Mr. Cox took medical leave from September 7, 2010 to October 4, 2010.8 Docket No. 39-1 at 8.

On October 7, 2010, Mr. Molloy, Ms. Kerr, and Ms. Stites discussed the September 24, 2010 PIP with Mr. Cox.9 Docket No. 38-18 at 5. According to Ms. Stites' meeting notes, Mr. Molloy gave Mr. Cox an opportunity to acknowledge the objectives and successfully complete the PIP, which Mr. Cox refused to do. Id. Later that day, Mr. Pierce asked Ms. Stites to investigate Mr. Cox with regards to allegations of insubordination. Docket No. 43-3 at 3 (Stites Dep. 43:17-25). Ms. Stites, however, did not advise Mr. Cox that he was under investigation. Id. at 4 (Stites Dep. 52:10-14). Ms. Stites testified that insubordination is considered a performance-based issue because it relates to an employee's failure to follow instructions. Docket No. 43-4 at 1 (Stites Dep. 58:11-15). Ms. Stites stated that, since the investigation was a performance-based investigation, Mr. Pierce told her that she was not required to contact Mr. Cox as part of the investigation.10 Id. (Stites Dep. 59:8-25).

*5 In the morning of October 8, 2010, Mr. Cox asked Mr. Molloy for help with inserting his flow-down objectives. Docket No. 39-1 at 9. Mr. Cox told Mr. Molloy that he wanted to complete the first objective of his PIP by entering his PM process objectives. Id. Mr. Molloy testified that, although Mr. Cox did not actually input his flow-down objectives, he nonetheless credited11 Mr. Cox for completing one paragraph of the September 24, 2010 PIP. Docket No. 43-6 at 3 (Molloy Dep. 76:15-24); Id. at 4 (Molloy Dep. 88:11-17).

Later that day, Ms. Kerr, Ms. Stites, and Mr. Molloy told Mr. Cox that Lockheed Martin was worried about his well being due to some "disturbing behavior and statements made over the last several months." Docket No. 43-1 at 3, ¶ 15. They advised Mr. Cox that he would be removed from the work environment pending a formal risk assessment performed by Dr. John Nicoletti, a clinical psychologist who specializes in anger management. Docket No. 39-1 at 9.

On October 15, 2010, Dr. Nicoletti performed Mr. Cox's risk assessment. Docket No. 39-3. Dr. Nicoletti concluded that there was insufficient evidence to show that Mr. Cox presented a risk of danger to himself or other coworkers. Id. at 3. However, Dr. Nicoletti found that Mr. Cox had "engaged in behaviors that [ ] created Social and Psychological Disruption." Id Dr. Nicoletti recommended that Lockheed Martin require Mr. Cox to follow nine behavioral expectations upon his return to work or be subject to disciplinary action. Id. at 12-13.

Based on Dr. Nicoletti's recommendations, Lockheed Martin presented Mr. Cox with a revised PIP dated November 4, 2010, Docket No. 38-24, and a Return to Work Expectations ("RTWE") document. Docket No. 38-25; Docket No. 43-5 at 2 (Rule 30(b)(6) Dep. 6:2-24). The RTWE stated, among other things, that Mr. Cox's failure to abide by the terms of the November 2, 2010 PIP or refusal to comply with the PIP could result in disciplinary action, including termination. Docket No. 38-25 at 2.

On November 4, 2010, Mr. Cox met with Mr. Molloy, Ms. Kerr, and Ms. Stites to discuss the RTWE and a PIP dated November 4, 2010. Docket No. 39-1 at 11-13. Ms. Stites presented Mr. Cox with the revised PIP. Docket No. 38-6 at 7 (Molloy Dep. 107:5-9). Mr. Molloy testified that Mr. Cox refused to engage in any meaningful conversation about its contents, id. (Molloy Dep. 107:19-25); Docket No. 38-4 at 10 (Cox Dep. 233:11-13), refused to sign the PIP, returned his work badges to Ms. Kerr, and said that he knew where this meeting was going. Docket No. 38-4 at 10 (Cox Dep. 234:8-235:17). Mr. Cox testified that he refused to sign the revised PIP because his work performance had been satisfactory and Dr. Nicoletti had found that he was not a threatening individual. Id. Mr. Cox also believed that the behavioral requirements of the November 24, 2010 PIP were demeaning and unjustified. Id. On November 5, 2010, Mr. Cox was told that he would be suspended pending an investigation into charges of insubordination. Id. at 9 (Cox Dep. 231:4-12). This was the first time Mr. Cox was notified of the investigation Ms. Stites had started on October 7, 2010. Id.; Docket No. 43-4 at 4 (Stites Dep. 108:7-13).

*6 Ms. Stites' investigation focused on allegations that Mr. Cox exhibited insubordinate behavior when he: (1) failed to input his flow-down objectives; (2) refused to sign his September 24, 2010 PIP; (3) refused to engage in respectful discussions with his supervisors; and (4) refused to sign and/or acknowledge the revised PIP of November 4, 2010 and comply with the RTWE. Docket No. 39-1 at 3-4. At the conclusion of her report, Ms. Stites found that three of the four allegations against Mr. Cox were substantiated. Id. at 14-15. The results of Ms. Stites' investigation were then presented to the Administrative Review Committee ("ARC"). Docket No. 38-5 at 6 (Stites Dep. 69:12-24).

On December 3, 2010, the ARC and the Executive Review Committee ("ERC") unanimously recommended that Lockheed Martin terminate Mr. Cox's employment.12 Docket 38-26. The ARC and ERC concluded that Mr. Cox exhibited insubordinate behavior when he refused to (1) enter his flow-down objectives into the PM process, (2) acknowledge the September 24, 2010 PIP,13 (3) engage in respectful discussions with his supervisors, and (4) acknowledge or sign the November 4, 2010 PIP or the RTWE. Id The ARC based its decision on all four allegations contained in the report, concluding that none of the individual allegations was more significant than any other.14 Docket No. 43-5 at 3 (Rule 30(b) (6) Dep. 59:22-60:11). Lockheed Martin also contacted Mr. Cox by telephone about his termination, but did not provide him with any information on the allegations of insubordination. Docket No. 43-1 at 4, ¶¶ 24-25.

Mr. Cox appealed his termination to Rich Kludt, vice president of HR. Docket No. 38-28 at 2-3. In his appeal, Mr. Cox argued that he was not given an opportunity to present information regarding his termination and present "his side of the story." Id. In response to the appeal, Mr. Kludt requested that Mr. Cox submit all pertinent documentation no later than December 21, 2010. Id. Mr. Cox did not provide Mr. Kludt with any information. Docket No. 38-4 at 15 (Cox Dep. 274:4-20). On January 12, 2011, Lockheed Martin denied Mr. Cox's appeal. Docket No. 38-29.

On December 2, 2010, Mr. Cox filed a charge of discrimination with the Colorado Civil Rights Division ("CCRD") and the Equal Employment Opportunity Commission ("EEOC"). Docket No. 1 at 2, ¶ 3. On March 11, 2011, Mr. Cox received a Notice of Right to Sue from the EEOC. Id. at ¶ 5. On June 6, 2011, Mr. Cox commenced this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981 alleging that he was subject to (1) discrimination on the basis of race and (2) retaliation for participating in protected activity. Docket No. 1 at 6-9. On April 30, 2012, Lockheed Martin moved for summary judgment on all of plaintiffs claims. Docket No. 38.

II. STANDARD OF REVIEW

According to Federal Rule of Civil Procedure 56, a court "shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED.R.CIV.P. 56(a); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986). In pursuing summary judgment, the moving party generally bears the initial burden of showing the absence of a genuine dispute concerning a material fact in the case. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). However, "[w]hen, as in this case, the moving party does not bear the ultimate burden of persuasion at trial, it may satisfy its burden at the summary judgment stage by identifying a lack of evidence for the nonmovant on an essential element of the nonmovant's claim." Bausman v. Interstate Brands Corp., 252 F.3d 1111, 1115 (10th Cir.2001).

*7 "Once the moving party meets this burden, the burden shifts to the nonmoving party to demonstrate a genuine issue for trial on a material matter." Concrete Works of Colo., Inc. v. City & Cnty. of Denver, 36 F.3d 1513, 1518 (10th Cir.1994) (citing Celotex, 477 U.S. at 325). The nonmoving party may not rest solely on the allegations in the pleadings, but instead must designate "specific facts showing that there is a genuine issue for trial." Celotex, 477 U.S. at 324; see FED.R.CIV.P. 56(e). "To avoid summary judgment, the nonmovant must establish, at a minimum, an inference of the presence of each element essential to the case." Bausman, 252 F.3d at 1115. However, to be clear, "it is not the party opposing summary judgment that has the burden of justifying its claim; the movant must establish the lack of merit." Alpine Bank v. Hubbell, 555 F.3d 1097, 1110 (10th Cir.2009).

Only disputes over material facts can create a genuine issue for trial and preclude summary judgment. Faustin v. City & Cnty. of Denver, 423 F.3d 1192, 1198 (10th Cir.2005). A fact is "material" if, under the relevant substantive law, it is essential to proper disposition of the claim. Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir.2001). An issue is "genuine" if the evidence is such that it might lead a reasonable jury to return a verdict for the nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir.1997) (citing Anderson, 477 U.S. at 248).

III. ANALYSIS

A. Discrimination Based on the September 24, 2010 PIP

In his first claim for relief, Mr. Cox alleges that Lockheed Martin discriminated against him because of his race in violation of 42 U.S.C. § 1981 and Title VII by placing him on a PIP on September 24, 2010.15 Docket No. 1 at 6-7. "In racial discrimination suits, the elements of a plaintiffs case are the same whether that case is brought under §§ 1981 or 1983 or Title VII." Carney v. City & Cnty. of Denver, 534 F.3d 1269, 1273 (10th Cir.2008) (quoting Baca v. Sklar, 398 F.3d 1210, 1218 n. 3 (10th Cir.2005)); accord Barlow v. C.R. England, Inc., 703 F.3d 497, 2012 WL 6685467, at *5 (10th Cir. Dec. 26, 2012).

Mr. Cox, however, has not presented any direct evidence that racial animus played a role in his placement on the September 24, 2010 PIP. Absent direct evidence of race discrimination, the Court will apply the burden-shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). See Crowe v. ADT Sec. Servs. Inc., 649 F.3d 1189, 1194 (10th Cir.2011). Under the McDonnell Douglas three-step analysis, plaintiff must first prove a prima facie case of discrimination. See Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1216 (10th Cir.2002). To set forth a prima facie case of discrimination, a plaintiff must establish that he (1) is a member of a protected class, (2) was qualified and satisfactorily performing his job, and (3) suffered an adverse employment action under circumstances giving rise to an inference of discrimination. See Sanchez v. Denver Pub. Sch., 164 F.3d 527, 531 (10th Cir.1998); Khalik v. United Air Lines, 671 F.3d 1188, 1193 (10th Cir.2012); Equal Employment Opportunity Commission v. PVNF, L.L.C., 487 F.3d 790, 800 (10th Cir.2007) (citing Sorbo v. United Parcel Serv., 432 F.3d 1169, 1173 (10th Cir.2005)).16 The burden then shifts to the defendant to produce a legitimate, non-discriminatory reason for the adverse employment action. See Garrett, 305 F.3d at 1216. If the defendant does so, the burden then shifts back to the plaintiff to show that his protected status was a determinative factor in the employment decision or that the employer's explanation is pretext. Id. Here, it is undisputed that Mr. Cox meets the first two elements of his prima facie case. Defendant, however, argues that Mr. Cox does not sufficiently show that his placement on a PIP on September 24, 2010 occurred under circumstances giving rise to an inference of unlawful discrimination. Docket No. 38 at 13-14.

*8 Defendant claims that Mr. Cox was placed on a PIP for his repeated failure to follow instructions from his managers and enter his flow-down objectives in accordance with company policy. Id. at 14-15. In his response, Mr. Cox presents no evidence to rebut this claim. Based on the evidence in the record, it is clear that Mr. Cox was placed on a PIP on September 24, 2010 because of his refusal to enter his flow-down objectives in his PM process file despite several warnings from his supervisors. See Docket No. 38-15 at 1; Docket No. 38-9 at 2; Docket No. 38-18 at 2. Therefore, Mr. Cox fails to show that the September 24, 2010 PIP was issued under circumstances giving rise to an "inference of discrimination." Daniels v. United Parcel Serv., Inc., 701 F.3d 620, 627 (10th Cir.2012). Because Mr. Cox fails to raise a genuine issue of material fact with respect to the September 24, 2010 PIP, the Court finds that defendant is entitled to summary judgment on plaintiffs first claim.

B. Discriminatory Termination

In his third claim for relief, Mr. Cox alleges that he was terminated on December 3, 2010 because of his race. Docket No. 1 at 8-9. As noted above, without direct evidence of discrimination, Mr. Cox must rely on the three-part, burden-shifting framework set out in McDonnell Douglas. Under this framework, Mr. Cox must first establish a prima facie case of discrimination. Khalik, 671 F.3d at 1192. Only after Mr. Cox clears this initial hurdle does the burden shift to the employer to prove a "legitimate, non-discriminatory reason for the adverse employment action." Id. If Mr. Cox does not establish a prima facie case, his claim fails. McDonnell Douglas, 411 U.S. at 802 ("The complainant in a Title VII trial must carry the initial burden under the statute of establishing a prima facie case of racial discrimination."). Here, it is undisputed that Mr. Cox meets the first two elements of his prima facie case. Defendant, however, argues that Mr. Cox does not sufficiently show that his termination occurred under circumstances giving rise to an inference of unlawful discrimination. Docket No. 38 at 13-14.

"The critical prima facie inquiry in all cases is whether the plaintiff has demonstrated that the adverse employment action occurred under circumstances which give rise to an inference of unlawful discrimination." Plotke v. White, 405 F.3d 1092, 1100 (10th Cir.2005) (citation and quotations omitted). In order to establish the third prong of a prima facie case, Mr. Cox can present evidence of "preferential treatment given to employees outside the protected class," "actions or remarks made by [a] decision maker," or circumstances related to "the timing or sequence of events leading to" his termination. Id. at 1101 (citation and quotation omitted). The real question is "whether a plaintiff has shown actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were based on a discriminatory criterion." Hysten v. Burlington N. & Santa Fe Ry. Co., 296 F.3d 1177, 1181 (10th Cir.2002) (internal quotation and citation omitted).

*9 Mr. Cox presents four arguments to show that his termination arose under circumstances giving rise to an inference of discrimination. First, Mr. Cox argues that he was treated differently than other similarly situated employees because he was supposedly terminated for refusing to sign his PIP while similarly situated employees outside of his suspect class kept their employment for the same offenses. Docket No. 43 at 13. Second, Mr. Cox claims that defendant provided inconsistent reasons to support the decision to terminate his employment. Id. at 14. Third, Mr. Cox contends that defendant's stated reasons for termination are false. Id. Finally, Mr. Cox asserts that defendant failed to follow its own policies and procedures when investigating plaintiffs insubordination. Id. at 16-17. The Court assumes, without deciding, that these four factors are sufficient for plaintiff to establish his prima facie case of discrimination based on race.17

Accordingly, under McDonnell Douglas, the burden then shifts to defendant to demonstrate a legitimate, non-discriminatory reason for its termination decision. Defendant asserts that it terminated Mr. Cox's employment due to his (1) refusal to enter management's flow-down objectives, (2) refusal to sign the September 24, 2010 PIP, (3) refusal to engage in respectful discussions with his supervisors, and (4) refusal to acknowledge and sign the November 4, 2010 PIP and RTWE. Docket No. 38-26. Because these are reasons that are not facially prohibited, defendant has satisfied its burden to produce legitimate non-discriminatory reasons for terminating Mr. Cox's employment. See Stinnett v. Safeway, Inc., 337 F.3d 1213, 1218 (10th Cir.2003).

Therefore, the burden shifts back to Mr. Cox to show that defendant's stated reasons are pretext for unlawful discrimination. To defeat summary judgment, Mr. Cox must show that there is a genuine dispute of material fact as to whether defendant's explanations for terminating his employment are pretextual. See Mickelson v. N.Y. Life Ins. Co., 460 F.3d 1304, 1318 (10th Cir.2006). Mr. Cox relies on four pieces of circumstantial evidence to establish pretext: (1) evidence that defendant treated him differently than similarly situated employees; (2) evidence that defendant gave a false explanation for Mr. Cox's termination; (3) evidence of allegedly inconsistent and contradictory reasons that defendant gave to terminate Mr. Cox's employment; and (4) procedural irregularities that allegedly occurred in the course of Mr. Cox's investigation for insubordination. Docket No. 43 at 12-17.

1. Similarly Situated

Mr. Cox contends that defendant's stated reasons for his termination are pretextual because two similarly situated employees outside of his protected class, Steve Moody and Mary Romero, were not terminated even though they refused to sign PIPs issued by defendant.18 Docket No. 43 at 13. Moreover, Mr. Cox argues that Ms. Stites testified that she knows of no other employee who has been terminated for refusing to sign his PIP. Docket No. 43-4 at 3 (Stites Dep. 87:6-10).

*10 Individuals are considered similarly situated "when they deal with the same supervisor, are subjected to the same standards governing performance evaluation and discipline, and have engaged in conduct of `comparable seriousness.'" PVNF, 487 F.3d at 801 (quoting McGowan v. City of Eufala, 472 F.3d 736, 745 (10th Cir.2006)); see also Rivera v. City & Cnty. of Denver, 365 F.3d 912, 922 (10th Cir.2004) ("[c]omparison of one disciplinary action with another ordinarily is relevant only to show the bias of the person who decided upon the disciplinary action"). The Tenth Circuit has noted that differences in how different employees are treated "may be explained by the fact that discipline was administered by different supervisors, or that the events occurred at different times when the company's attitudes toward certain infractions were different, or that the individualized circumstances surrounding the infractions offered some mitigation for the infractions less severely punished." EEOC v. Flasher Co., 986 F.2d 1312, 1320 (10th Cir.1992) (citations omitted). In some cases, there may be "no rational explanation for the differential treatment" between employees "other than the inevitability that human relationships cannot be structured with mathematical precision, and even that explanation does not compel the conclusion that the defendant was acting with a secret, illegal discriminatory motive." Id.

In the present case, the dissimilarities between the allegedly comparable situations of Ms. Romero and Mr. Moody and Mr. Cox's own dismissal are too great to warrant an inference of discriminatory animus. It is undisputed that the ARC and the ERC terminated Mr. Cox's employment not simply because of his failure to sign two PIPs, but also because he was disrespectful to his supervisors, refused to enter his flow-down objectives, and refused to abide by the RTWE. Docket No. 38-26; Docket No. 43-5 at 3 (Rule 30(b)(6) Dep. 59:22-60:11). Although Mr. Cox alleges that Mr. Moody and Ms. Romero are similarly situated to him, he does not present evidence showing that they were accused of comparably serious violations. See Kendrick v. Penske Transp. Servs., 220 F.3d 1220, 1230 (10th Cir.2000) (plaintiff may show pretext by "providing evidence that he was treated differently from other similarly-situated employees who violated work rules of comparable seriousness"); McGowan, 472 F.3d at 745 ("[e]ven employees who are similarly situated must have been disciplined for conduct of `comparable seriousness' in order for their disparate treatment to be relevant"). Without this evidence, Mr. Cox fails to show that his conduct was sufficiently similar to that of Ms. Romero and Mr. Moody. Accordingly, the Court finds that Mr. Cox has failed to show that Mr. Moody and Ms. Romero were charged with offenses of "comparable seriousness" and, because there are significant differences between their circumstances, he does not show that they are similarly situated.

2. False Explanation

*11 Next, Mr. Cox argues that one of the reasons provided by defendant for his termination—that Mr. Cox refused to acknowledge and abide by the terms of the RTWE—is pretextual. Docket No. 43 at 14. In support, Mr. Cox states that paragraph 2 of the RTWE required that he "acknowledge and sign the revised Performance Improvement Plan dated November 2, 2010." Docket No. 38-25 at 1. In addition, paragraph 6b of the RTWE required that Mr. Cox "sign, acknowledge or comply with the revised PIP." Id. at 2. Mr. Cox claims that, because defendant presented a revised PIP dated November 4, 2010 and not November 2, 2010, he was never given an opportunity to comply with paragraphs 2 and 6b of the RTWE. Docket No. 43 at 14.

"In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000). "The relevant inquiry is not whether [the employer's] proffered reasons were wise, fair or correct, but whether [it] honestly believed those reasons and acted in good faith upon those beliefs." Rivera v. City & Cnty. of Denver, 365 F.3d 912, 924-25 (10th Cir.2004) (alterations in original) (internal quotation marks omitted) (quoting Bullington v. United Air Lines, Inc., 186 F.3d 1301, 1318 (10th Cir.1999), overruled on other grounds by Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002)). "In determining whether the proffered reason for a decision was pretextual, `we examine the facts as they appear to the person making the decision.'" Watts v. City of Norman, 270 F.3d 1288, 1295 (10th Cir.2001) (quoting Selenke v. Med. Imaging of Colo., 248 F.3d 1249, 1261 (10th Cir.2001)). "An articulated motivating reason is not converted into pretext merely because, with the benefit of hindsight, it turned out to be poor business judgment." McKnight v. Kimberly Clark Corp., 149 F.3d 1125, 1129 (10th Cir.1998). The Court's role is to prevent and redress employment discrimination, and not to act as a "`super personnel department,' second guessing employers' honestly held (even if erroneous) business judgments." Young v. Dillon Cos., Inc., 468 F.3d 1243, 1250 (10th Cir.2006) (quoting Jones v. Barnhart, 349 F.3d 1260, 1267 (10th Cir.2004)).

The Court finds that Mr. Cox does not show that defendant's reason for terminating his employment was pretextual. First, the RTWE identifies several behavioral expectations that Mr. Cox was required to follow upon his return to work. Docket No. 38-25. As noted above, Mr. Cox testified at his deposition that he would not comply with these behavioral requirements because he found them demeaning. Docket No. 38-4 at 10 (Cox Dep. 235:1-7). Moreover, Mr. Cox admitted that he refused to acknowledge and sign the November 4, 2010 PIP.19 Id. at 11 (Cox Dep. 240:17-20). In a challenge involving pretext, "[i]t is the manager's perception of the employee's performance that is relevant, not plaintiffs subjective evaluation of his own relative performance." Furr v. Seagate Tech., Inc., 82 F.3d 980, 988 (10th Cir.1996). The fact that the RTWE identified a date of November 2, 2010 for the revised PIP, while the revised PIP presented to Mr. Cox was dated November 4, 2010 does not give rise to an inference that defendant's stated reason for termination was false. Flasher, 986 F.2d at 1322 n. 12 ("a mistaken belief can be a legitimate reason for an employment decision and is not necessarily pretextual"). Based on the evidence presented to the ARC and the ERC, it was reasonable to believe that Mr. Cox would not comply with any PIP that included a list of behavioral expectations. Tesh v. U.S. Postal Serv., 349 F.3d 1270, 1273 (10th Cir.2003) (noting that in pretext, the question is not whether employer's stated reason for the plaintiffs termination was factually accurate, but whether the employer "reasonably `perceived' that it was accurate."). Simply because the date listed on the revised PIP varied slightly from the RTWE does not make the ARC's and the ERC's belief any less credible. Accordingly, because the ARC and the ERC had a good faith belief that Mr. Cox failed to comply with the RTWE, Mr. Cox has not raised an issue of material fact regarding defendant's explanation for his termination. Metzler v. Fed. Home Loan Bank of Topeka, 464 F.3d 1164, 1179 (10th Cir.2006).

3. Inconsistent and Contradictory Reasons for Termination

*12 Mr. Cox next argues that defendant offered two inconsistent explanations for his termination. Docket No. 43 at 12. First, Mr. Cox asserts that defendant's shifting rationale between "signing" and "acknowledging" a PIP shows this reason for termination is pretextual. Docket No. 43 at 13. Second, Mr. Cox claims that, because he was not disrespectful to leadership, this reason for termination is contradictory. Id. at 15-16.

Mr. Cox can demonstrate pretext by showing "weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action." Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir.1997); see also Miller v. Eby Realty Grp. LLC, 396 F.3d 1105, 1111 (10th Cir.2005). Evidence of an inconsistent reason for termination is only helpful to a plaintiff if "the employer has changed its explanation under circumstances that suggest dishonesty or bad faith." See Jaramillo v. Colo. Judicial Dept, 427 F.3d 1303, 1310 (10th Cir.2005).

Mr. Cox claims that the ARC and the ERC first found that he was insubordinate for failing to "sign" the September 24, 2010 PIP, but then found that he was insubordinate for "refusing to acknowledge and sign" the November 4, 2010 PIP. Docket No. 38-26 at 1. Mr. Cox argues that he was never advised about the difference between signing a PIP and acknowledging a PIP. Docket No. 43-1 at 3, ¶ 17. He asserts that defendant does not have a clear definition for the differences between "sign" and "acknowledge" and adopted Ms. Stites' definition. Docket No. 43-5 at 4 (Rule 30(b)(6) Dep. 62:5-9).

The Court finds that, while defendant may have relied on both Mr. Cox not signing his PIPs and not acknowledging his PIPs, defendant's explanations for Mr. Cox's termination have not been inconsistent. Jaramillo, 427 F.3d at 1311 ("Courts have looked to two factors to evaluate a change in the employer's explanation for an employment decision: (1) the timing of the change in position and (2) the evidentiary basis for the new rationale."). The evidence in the record shows that, during the week of October 4, 2010 to October 8, 2010, Mr. Cox made some effort to comply with the September 24, 2010 PIP by attending group meetings, Docket No. 43-6 at 4 (Molloy Dep. 86:11-14), and even once approached Mr. Molloy to enter his flow-down objectives. Id. at 3 (Molloy Dep. 76:17-24). However, as noted in the investigation report, Mr. Cox was found to be insubordinate, not for failing to comply with the September 24, 2010 PIP, but for repeatedly indicating that it was not his PIP and that he would not follow the PIP. Docket No. 39-1 at 14. In addition, although Ms. Stites states that it is unclear whether the distinction between "acknowledging" and "signing" the PIP was made clear to Mr. Cox on September 24, 2010, id. (Stites Dep. 85:4-8), it is undisputed that Mr. Cox refused to acknowledge and sign the November 4, 2010 PIP. Docket No. 38-4 at 11 (Cox Dep. 240:14-20).

*13 Based on this evidence, defendant has not changed its rationale between "signing" and "acknowledging" in order to "mask an illegitimate motive." Jaramillo, 427 F.3d at 1310. On the contrary, defendant's explanation for finding that Mr. Cox did not acknowledge the PIP is based on Mr. Cox's repeated statements that the September 24, 2010 PIP was "unjustified." Docket No. 38-4 at 2 (Cox Dep. 173:5-14, 174:6-9). As Ms. Stites testified, although there is no Lockheed Martin policy defining what it means to acknowledge a PIP, an employee can acknowledge a PIP by "[a]gree[ing] to abide by the PIP, understand that this is a PIP document that needs to be completed." Docket No. 43-4 at 2 (Stites Dep. 79:21-24). In this case, it is clear that Mr. Cox never acknowledged his PIPs, signed his PIPs, or stated that he understood it was a document that had to be completed. Based on these facts, the Court finds that the distinction between signing and acknowledging a PIP would not cause a rational factfinder to discount the legitimacy of defendant's non-retaliatory explanation for Mr. Cox's termination. Jaramillo, 427 F.3d at 1310 (inconsistency evidence is only helpful to a plaintiff if "the employer has changed its explanation under circumstances that suggest dishonesty or bad faith").

Next, Mr. Cox contends that, because he was not disrespectful to his supervisors, defendant's stated reason for terminating his employment is contradictory. Docket No. 43 at 15-16. Mr. Cox claims that, although he stood up during meetings, Mr. Molloy, Ms. Stites, and Ms. Kerr never insisted that he sit down or that he make more eye contact. Id. In addition, Mr. Cox states that neither Mr. Molloy, Ms. Stites, nor any other employee at Lockheed Martin told him that they viewed his behavior negatively. Id.

Even assuming Mr. Cox subjectively believed he did not have a poor attitude, "[i]t is the manager's perception of the employee's performance that is relevant, not plaintiff's subjective evaluation of [his] own relative performance." Furr, 82 F.3d at 988. The evidence in the record shows that Mr. Cox clenched his fists during meetings, Docket No. 43-12 at 2 (Molloy Dep. 43:17-21), wore headphones during meetings, Docket No. 38-2 at 9 (Cox Dep. 74:11-19), responded in an untimely manner to email correspondence, repeatedly refused to enter his flowdown objectives, Docket No. 38-18 at 2, and elevated his voice when talking to Mr. Molloy. Based on the foregoing, the Court finds that no reasonable juror could find that Mr. Molloy, Ms. Stites, the ARC, and the ERC did not genuinely perceive Mr. Cox as having inadequate interpersonal skills or failing to show respect for his supervisors. Accordingly, Mr. Cox has not raised a genuine issue of material fact regarding defendant's explanation that Mr. Cox was terminated, in part, because of a lack of adequate interpersonal skills and failure to respect his supervisors.

4. Defendant's Actions were Contrary to Established Policies

*14 Finally, Mr. Cox argues that defendant's failure to seek his response to the allegations of insubordination is sufficient to show that its reasons for terminating him were a pretext for discrimination. Docket No. 43 at 17. Mr. Cox argues that, pursuant to defendant's policies, the ARC was required to provide him with an opportunity to respond to his charges of insubordination.20 Id. Moreover, Mr. Cox states that Mr. Pierce, a member of the CMT and ARC, told Ms. Stites that she did not have to contact Mr. Cox in the course of her investigation. Mr. Cox argues that defendant's failure to let him defend his charge of insubordination is evidence of pretext.21 Docket No. 43 at 17.

The fact that a "defendant acted contrary to a written company policy prescribing the action to be taken by the defendant under the circumstances" may in an appropriate case give rise to a fact issue regarding pretext. Kendrick, 220 F.3d at 1230. The Tenth Circuit has held "disturbing procedural irregularities surrounding an adverse employment action may demonstrate that an employer's proffered nondiscriminatory business reason is pretextual." Timmerman v. U.S. Bank, NA., 483 F.3d 1106, 1122 (10th Cir.2007). However, "[t]he mere fact that an employer failed to follow its own internal procedures does not necessarily suggest that the substantive reasons given by the employer for its employment decision were pretextual." Berry v. T-Mobile USA, Inc., 490 F.3d 1211, 1222 (10th Cir.2007) (alteration omitted) (internal quotation marks omitted).

"[T]he standard for establishing pretext requires evidence of not just any procedural shortfall, but of a `disturbing procedural irregularity,'" often exemplified by an "employer's `falsifying or manipulating of relevant criteria.'" Cooper v. Wal-Mart Stores, Inc., 296 F. App'x 686, 696 (10th Cir.2008) (citations omitted). Moreover, an employee's mere allegation that his employer deviated from company policy is insufficient to prove pretext; rather, the employee must present evidence that the employer believed that a relevant company policy existed and chose to deviate from the policy in spite of that belief. See Cooper, 296 F. App'x at 696 (finding that the employer's failure to "seek out the employee's side of the story" was contrary to company policy, but did not amount to a "disturbing procedural irregularity" where the employee failed to present evidence that the employer believed that its policy required it to obtain the employee's side of the story); Berry, 490 F.3d at 1222 (stating that if the "decision makers did not believe a rigid policy existed," their mistake in failing to follow it does not show pretext).

It is undisputed that defendant did not contact Mr. Cox over the course of its investigation. However, according to Ms. Stites, even though Lockheed Martin's policy states that an employee should be given the opportunity to submit a written statement before the investigation is referred to the ARC, it had been company practice in performance-based investigations for several years not to include a written statement from the accused employee. Docket No. 43-4 at 4 (Stites Dep. 107:17-23). Moreover, Ms. Stites testified that, pursuant to company policy, insubordination is considered a performance-based issue because it relates to an employee's failure to follow instructions. Id. at 1 (Stites Dep. 58:11-15). Thus, because Mr. Cox's investigation was performance-based, Ms. Stites testified that defendant was not required to contact Mr. Cox over the course of the investigation. Id. at 1 (Stites Dep. 59:8-25).

*15 The Court finds that Ms. Stites' interpretation of defendant's policy does not constitute a "disturbing procedural irregularity." The policy is called "Conduct and Disciplinary Action" and by its terms the policy applies to employees accused of "wrongdoing," as opposed to employees being disciplined for substandard work. In addition, Mr. Cox has not shown that defendant had a rigid policy of interviewing an accused employee before concluding a performance-based investigation. Berry, 490 F.3d at 1222 (finding that, because it is undisputed that decisionmakers did not believe a rigid policy existed, "even if the failure to [follow procedure] was a mistake, it was not pretextual") (citation omitted). Based on these facts, Mr. Cox has not proffered evidence showing that defendant's failure to interview him is evidence of a disturbing procedural irregularity. Cooper, 296 F. App'x at 696 (finding that establishing pretext requires evidence "of not just any procedural shortfall, but of a `disturbing procedural irregularity . . . often exemplified by an employer's `falsifying or manipulating of relevant criteria'") (citations omitted). Accordingly, the Court finds that Mr. Cox fails to show that defendant's failure to interview him prior to making a termination decision is evidence of pretext. Id.

5. Conclusion

The record in this case shows that Mr. Cox was terminated for his failure to implement flow-down objectives into the PM process, his refusal to abide by the terms of the September 24, 2010 PIP and the November 4, 2010 PIP, for repeatedly refusing to engage in respectful conversations with his supervisors, and for his refusal to abide by the RTWE established based on Dr. Nicoletti's evaluation. Lockheed Martin had been trying to get Mr. Cox to comply with the PM process since 2009. Viewing the evidence in a light most favorable to Mr. Cox, the evidence he presents does not show that defendant's stated reasons are so weak, implausible, inconsistent, incoherent, or contradictory that a reasonable jury could rationally find them unworthy of belief. Morgan, 108 F.3d at 1323. Accordingly, because Mr. Cox fails to raise a genuine issue of material fact with respect to the basis for his termination, the Court finds that defendant is entitled to summary judgment on plaintiff's third claim.

C. Retaliation

1. Prima Facie Case

Mr. Cox argues that he was terminated for engaging in protected activity. Docket No. 43 at 18. Title VII makes it unlawful for an employer to retaliate against an employee "because he has opposed any practice made an unlawful employment practice by this subchapter." 42 U.S.C. § 2000e-3(a). To prevail on a Title VII retaliation claim, Mr. Cox must establish that retaliation played a part in the employment decision. Fye v. Okla. Corp. Comm'n, 516 F.3d 1217, 1224 (10th Cir.2008).

One means by which Mr. Cox can establish retaliation is through a "mixed-motive" theory, wherein he may show direct evidence that retaliatory animus played a "motivating part" in the employment decision.22 See Twigg v. Hawker Beechcraft Corp., 659 F.3d 987, 998 (10th Cir.2011) (citation omitted). However, because Mr. Cox presents no direct evidence showing a mixed motive, he may also show retaliation through the McDonnell Douglas framework. Id. Under this framework, Mr. Cox must first establish a prima facie case of retaliation by demonstrating that: (1) he engaged in protected opposition to discrimination, (2) that a reasonable employee would have found the challenged action materially adverse, and (3) that a causal connection existed between the protected activity and the materially adverse action. Id. at 998 (internal quotation marks omitted). If Mr. Cox establishes a prima facie case of retaliation, then the burden-shifting analysis of McDonnell Douglas is applicable and defendant must articulate a legitimate, non-retaliatory reason for the challenged employment decision. Fye, 516 F.3d at 1227. If defendant meets this burden, then the plaintiff must prove retaliation by showing that defendant's proffered reason is pretextual. Id.

*16 Mr. Cox claims that he engaged in two instances of protected activity: (1) the May 21, 2010 email to Ms. Kerr notifying her that he and Ms. Romero were called "the bugs" during a staff meeting and (2) the August 4, 2010 interview with Ms. Burch when he used the analogy about metal's breaking point and an abused dog.23 Docket No. 43 at 18. The Court finds that these two events qualify as protected activity under Title VII. See 42 U.S.C. § 2000e-3(a) ("[i]t shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter."); Hertz v. Luzenac Am., Inc., 370 F.3d 1014, 1015 (10th Cir.2004) ("[p]rotected opposition can range from filing formal charges to voicing informal complaints to superiors").

Next, Mr. Cox alleges, and defendant does not dispute, that the commencement of the ARC's investigation and disciplinary disposition constitutes an adverse employment action. Docket No. 43 at 19. To qualify as adverse, an employer's action must be sufficient to "dissuade" a reasonable worker from making a complaint or supporting a charge of discrimination. Bertsch v. Overstock.com, 684 F.3d 1023, 1028-29 (10th Cir.2012) (noting that, after the Supreme Court's decision in Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006), a plaintiff is no longer required to show "a significant change in her employment status" in a prima facie case of retaliation). Here, the Court finds that the commencement of the ARC's investigation on August 18, 2010 and the requirement that Mr. Cox undergo a risk assessment evaluation constitute adverse employment actions because they are sufficient to dissuade an employee from supporting a charge of discrimination. Id.

Finally, Mr. Cox claims that he can show a causal connection because his participation in Ms. Romero's investigation triggered a series of actions which led to his termination on December 3, 2010. Docket No. 43 at 18. Mr. Cox argues that he can show causation because: (1) the ARC commenced termination proceedings on August 18, 2010;24 (2) the CMT began an investigation about insubordination on October 7, 2010; (3) he was removed from the work premises for a risk assessment on October 8, 2010; and (4) he was placed on leave on November 5, 2010 for failure to abide by the November 4, 2010 PIP and the RTWE. Id. at 19.

In a case of retaliation, a causal connection may be shown by evidence of circumstances that justify an inference of retaliatory motive, such as protected conduct closely followed by adverse action. Fye, 516 F.3d at 1228; Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir.1999); Metzler v. Fed Home Loan Bank of Topeka, 464 F.3d 1164, 1171 (10th Cir.2006) ("a plaintiff may rely on temporal proximity alone only if the termination is very closely connected in time to the protected activity").

*17 The Court finds that the two months between Mr. Cox's participation in protected activity (testifying about Ms. Romero's discrimination complaint) and the adverse employment actions (the commencement of the ARC termination process, the CMT investigation, and his removal for a risk assessment) are sufficient to establish a causal connection. See Anderson, 181 F.3d at 1179 (assuming a period of approximately nine weeks was sufficient to establish a prima facie case of retaliation); Annett v. Univ. of Kansas, 371 F.3d 1233, 1239-40 (10th Cir.2004) (holding that a period of up to two to three months demonstrated causation for the purposes of establishing a prima facie case under Title VII). Because Mr. Cox has satisfied his burden to establish a prima facie case of retaliation, defendant must now offer a legitimate, nondiscriminatory reason for Mr. Cox's termination.

2. Legitimate Non—Discriminatory Reason for Termination

Establishing a legitimate, nondiscriminatory reason is a burden of production and "can involve no credibility assessment." Reeves, 530 U.S. at 142. As noted above, defendant asserts that it commenced a CMT investigation due to Mr. Cox's (1) refusal to enter management's flowdown objectives, (2) refusal to sign the September 24, 2010 PIP, (3) refusal to engage in respectful discussions with his supervisors, and (4) refusal to acknowledge or sign the November 4, 2010 PIP and RTWE. Docket No. 38-26. Additionally, defendant contends that it placed Mr. Cox on a PIP on September 24, 2010 because he refused to enter management's flowdown objectives into the PM process despite three separate warnings from Ms. Kerr, Mr. Molloy, and Ms. Stites. See Docket No. 38-15 at 1; Docket No. 38-9 at 2; Docket No. 38-18 at 2. Moreover, Mr. Cox was required to undergo a risk assessment because of the threatening nature of the statements he made to Ms. Burch. Furthermore, Mr. Cox was terminated because defendant found that the four allegations of insubordination were substantiated. Because these are legitimate, nondiscriminatory reasons for beginning an investigation for subordination, requiring Mr. Cox to undergo a risk assessment, and Mr. Cox's subsequent termination, the burden now shifts to Mr. Cox to show why defendant's nondiscriminatory reasons are pretextual.

3. Pretext

To show pretext, Mr. Cox must "produce evidence of such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence and hence infer that the employer did not act for the asserted nondiscriminatory reasons." Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1203 (10th Cir.2006).

Mr. Cox's pretextual arguments rely predominantly on the same evidence discussed in relation to his race discrimination claim. See Docket No. 43 at 11-17. The Court has already found that these reasons are insufficient to establish pretext and there is nothing in the context of his retaliation claim that makes them more sufficient now. However, Mr. Cox makes two arguments specifically related to his claim of retaliation. Mr. Cox appears to argue that the ARC's decision to initiate termination proceedings on August 18, 2010—leading to the October 7, 2010 investigation—and the decision to require that he undergo a risk assessment show that defendant's reasons for termination are pretextual. Docket No. 43 at 20.

*18 Mr. Cox claims insubordination was not a true reason for beginning the ARC termination process because, on August 18, 2010, most of the evidence of his alleged insubordination had yet to occur. Docket No. 43 at 19-20. Moreover, Mr. Cox claims that he has provided sufficient evidence of retaliation given that June Taylor, an ARC member, was aware of Mr. Cox's participation in Ms. Romero's case since September 24, 2010.25 Id.

The Court finds that Mr. Cox does not sufficiently show that the ARC's decision to commence the October 7, 2010 investigation was pretextual. Mr. Cox does not rebut defendant's legitimate non-discriminatory reasons for beginning the investigation, namely, that he: (1) refused to enter his management flow-down objectives in the PM process file; (2) refused to sign the September 24, 2010 PIP; (3) refused to engage in respectful discussion with his leaders regarding his performance; and (4) refused to acknowledge and sign the November 4, 2010 PIP and RTWE. Id. at 1-2. To the extent plaintiff argues that defendant violated its own policies during the investigation, the Court finds that defendant's interpretation of a policy not to require interviewing him was reasonable and therefore defendant did follow its policy and that, even if defendant did fail to follow its policy, plaintiff fails to show that such policy was rigidly adhered to. See Berry, 490 F.3d at 1222.

Mr. Cox claims that the decision to investigate his employment is tainted because Ms. Taylor, as a member of the ARC, knew about his participation in Ms. Romero's discrimination complaint. Docket No. 43 at 20. In her complaint of discrimination, Ms. Romero asserted that Kent Sorenson had called her and Mr. Cox "the bugs." Docket No. 39-2 at 13. Assuming Ms. Taylor was aware of these allegations, Mr. Cox does not explain why Ms. Taylor's knowledge of his involvement in Ms. Romero's complaint could lead a rational factfinder to infer that defendant's expressed reason for the investigation was pretextual. Argo, 452 F.3d at 1203.

Next, Mr. Cox argues that he has sufficiently shown retaliation because he was required to perform a risk assessment based on comments he made during the investigation of Ms. Romero's complaint. Docket No. 43 at 18-19. However, Mr. Cox does not dispute that he used two analogies which led to CMT's decision to require a risk assessment. Although Mr. Cox suggests that the comments referred to Ms. Romero, both of these analogies could be reasonably interpreted to constitute a threat to the safety of the workplace. Ms. Burch testified that she approached Mr. Pierce because she was concerned that Mr. Cox was having some health issues and appeared angry.26 Docket No. 38-10 at 7 (Burch Dep. 73:8-12). Moreover, it is undisputed that CMT also requested the risk assessment based on evidence provided by Mr. Molloy and Ms. Burch that Mr. Cox exhibited threatening behavior. Docket No. 43-5 at 6 (Rule 30(b)(6) Dep. 73:18-25, 76:14-19). Mr. Molloy's evidence consisted of the complaint brought forward by Mr. Floyd as well as Mr. Molloy's own interactions with Mr. Cox. Id (Rule 30(b)(6) Dep. 75:19-23). Given these non-discriminatory reasons, the Court finds that Mr. Cox fails to show that the decision to have him undergo a risk assessment was pretextual.

*19 In summary, Mr. Cox does not present sufficient evidence to show that defendant's stated reasons for the October 7, 2010 investigation, the risk assessment, and subsequently his termination are pretextual. Viewing the evidence in a light most favorable to Mr. Cox, Mr. Cox fails to demonstrate that defendant's non-discriminatory reasons are so weak, implausible, inconsistent, or incoherent that a reasonably jury could rationally find them unworthy of belief. As a result, defendant is entitled to summary judgment on Mr. Cox's retaliation claim.

IV. CONCLUSION

For the foregoing reasons, it is

ORDERED that Defendant's Motion for Summary Judgment [Docket No. 38] is GRANTED. It is further

ORDERED that the trial set for January 28, 2013 is VACATED. It is further

ORDERED that, within 14 days of the entry of judgment, defendant may have its costs by filing a bill of costs with the Clerk of the Court. It is further

ORDERED that this case is CLOSED.

FINAL JUDGMENT

In accordance with the orders filed during the pendency of this case, and pursuant to Fed.R.Civ.P. 58(a), the following Final Judgment is hereby entered.

Pursuant to the Order (# 77) of Hon. Philip A. Brimmer entered Jan. 11, 2013 it is

ORDERED that Defendant's Motion for Summary Judgment (# 38) is GRANTED. Accordingly, it is

FURTHER ORDERED that judgment is hereby entered in favor of Defendant Lockheed Martin Corporation and against Plaintiff Cortez Cox, the plaintiff shall recover nothing, the action is dismissed. Defendant is further AWARDED its costs, to be taxed by the Clerk of the Court pursuant to Fed.R.Civ.P. 54(d)(1) and D.C.COLO.LCivR 54.1.

Attorneys and Law Firms

R. Mark Solano, R. Mark Solano PLLC, Tulsa, OK, for Plaintiff.

David L. Sobel, David L. Sobel PC, Tulsa, OK, for Defendant.

ORDER

MILESLAGRANGE, J.

*1 Before the Court is defendant's Motion to Dismiss, filed December 9, 2004. On January 11, 2005, plaintiff filed her response. Based upon the parties' submissions, the Court makes its determination.

I. Introduction

Plaintiff is a permanent resident alien of the United States of America and is defendant's ex-wife. On or about January 29, 2001, defendant filed on behalf of plaintiff, his then wife, an Affidavit of Support with the Immigration and Naturalization Service. On June 24, 2004, plaintiff filed the instant action alleging that defendant failed to comply with his obligations under the Affidavit of Support and seeking specific performance of the Affidavit of Support and damages in the amount of the past due support.

II. Discussion

Defendant, pursuant to Federal Rule of Civil Procedure 12(b)(6), has moved to dismiss this action for failure to state a claim upon which relief can be granted. Specifically, defendant asserts that this action should be dismissed on the following grounds: (1) plaintiff has not received any means-tested public benefits and, therefore, cannot bring the instant action; (2) the Affidavit of Support is not a legally binding contract; and (3) the parties' divorce decree ended support alimony obligations as of June 1, 2004.

When reviewing a motion to dismiss for failure to state a claim under Rule 12(b)(6), a court accepts "as true all well-pleaded facts, as distinguished from conclusory allegations, and view[s] those facts in the light most favorable to the nonmoving party." Maher v. Durango Metals, Inc., 144 F.3d 1302, 1304 (10th Cir.1998). "A complaint may be dismissed pursuant to Fed.R.Civ.P. 12(b)(6) only if the plaintiff can prove no set of facts to support a claim for relief." David v. City and County of Denver, 101 F.3d 1344, 1352 (10 th Cir.1996) (internal quotations and citations omitted).

The Immigration and Nationality Act provides that an Affidavit of Support is a contract legally enforceable "against the sponsor by the sponsored alien. . . ." 8 U.S.C. § 1183a(a)(1)(B). The Act further provides that an action to enforce an Affidavit of Support "may be brought against the sponsor in any appropriate court-(1) by a sponsored alien, with respect to financial support. . . ." 8 U.S.C. § 1183a(e).

Additionally, the regulations promulgated pursuant to the Act provide, in pertinent part:

*2 8 C.F.R. § 213a.2(d) (2005) (emphasis added).

The Affidavit of Support itself also provides, in pertinent part: "I understand that the sponsored immigrants . . . are entitled to sue me if I fail to meet my obligations under this affidavit of support as defined by section 213A and INS regulations." Affidavit of Support at 5, attached as Exhibit B to plaintiffs response. The Affidavit of Support further provides:

Affidavit of Support at 6.

Finally, the instructions for the Affidavit of Support provide, in pertinent part:

Sponsor's obligation

Having carefully reviewed the Complaint, the parties' submissions, and the applicable statutes and regulations, the Court finds that plaintiff has stated a claim upon which relief can be granted. Specifically, the Court finds that plaintiff, a sponsored immigrant, can maintain an action against defendant, a sponsor, to enforce defendant's obligations under the Affidavit of Support regardless of whether means-tested public benefits have been provided. The Court further finds that an Affidavit of Support is a legally enforceable contract. Finally, the Court finds that a sponsor and sponsored immigrant's divorce does not automatically terminate the sponsor's obligations under the Affidavit of Support. The Court, therefore, finds that this action should not be dismissed.

III. Conclusion

For the reasons set forth above, the Court DENIES defendant's Motion to Dismiss [docket nos. 8, 10, and 12].

IT IS SO ORDERED.

Attorneys and Law Firms

Patricia L. Medige, Colorado Legal Services, Inc., Denver, CO, for Plaintiffs.

Patrick L. Ridley, Ridley, McGreevy & Weisz, PC, Denver, CO, for Defendants.

Order

LEWIS T. BABCOCK, United States District Chief Judge.

*1 Defendant Andrew L. Grant ("Grant") seeks dismissal for failure to state a claim under Fed.R.Civ.P. 12(b)(6) of claims by plaintiffs John Doe I-V for violations of the Fair Labor Standards Act, ("FLSA"), 29 U.S.C. § 201 et seq., the Migrant and Seasonal Agricultural Worker Protection Act ("AWPA"), 29 U.S.C. § 1801 et seq., and unjust enrichment, all related to plaintiffs' work on the Grant Family Farms. For the reasons discussed below, Grant's motion is DENIED.

I. BACKGROUND

The factual background of this case, as described in plaintiff's first amended complaint, is as follows. Plaintiff's are migrant agricultural workers, all Mexican nationals, brought surreptiously into the United States from Mexico by defendants Moises Rodriguez and Maria Rodriguez (referred to herein as "contractor defendants") to work on Grant Family Farms in Weld County, Colorado. The contractor defendants are farm labor contractors who recruit, solicit, hire, transport and house farm laborers to work on farms in Colorado.

In March of 2004, the contractor defendants recruited workers in Mexico, including the plaintiffs, to come to Colorado for farm labor. From approximately April 2004 until October 2004, the plaintiffs worked at a farm labor camp operated by the contractor defendants located at 22185 Highway 52, Hudson, CO (the "Highway 52 compound.") The plaintiffs worked mainly, but not exclusively, at Grant Family Farms. Plaintiffs contend that the contractor defendants had a long-standing business relationship with Grant Family Farms and had been providing them with farm labor in this manner for several years. The plaintiffs describe the conditions at the Highway 52 compound as unsanitary, lacking safe drinking water, without sufficient toilets and showers, infected by insects and overcrowded. Plaintiffs also allege that their circumstances were tantamount to debt peonage, since they were informed upon their arrival that they owed the contractor defendants $1,300 in smuggling fees and could not end their employment until they repaid this putative debt.

Plaintiffs state that they worked long hours, from 4:30 am to 8:00pm, inclusive of travel time to the farm, and their work on Grant Family Farms was "backbreaking" work weeding the fields, since the Grant Family farm did not use pesticides. Plaintiffs contend that they were under constant surveillance by Moises Rodriguez and farm foremen, to prevent them from leaving the farm and to maintain the pace and intensity of their work. Moises Rodriguez patrolled the perimeter of the farm to prevent escapes, and also tried to intimidate the workers by discharging a firearm and by stating he would find them if they tried to escape.

The contractor defendants made numerous deductions from the workers' twice monthly pay. These included rent charges of $50 twice per month, transportation charges of $48 twice per month, charges for bathroom cleaning, deposits for rain gear, farming tools and payments for fees owed for smuggling them into the country. The contractor defendants deducted social security payments from the workers, even though the workers did not have social security numbers. The contractor defendants charged the workers check cashing fees of 1%. Cumulatively, this meant that the workers were paid much less than the $5.15/hour minimum wage, and some weeks were paid as little as $2.90/hour for a sixty hour work week.

*2 Grant Family Farms, located in Wellington, Colorado, was incorporated in Colorado on May 5, 1998. Grant is the company's registered agent and serves as the company's President. The plaintiffs allege that Grant made all of the essential business decisions regarding the farm, including what to plant, where to plant and when to harvest. Grant owned all of the tools and materials, and directly supervised the contractors, either personally or through intermediary foremen. Grant also bore all of the financial risks of the farm operations.

The plaintiff workers ultimately escaped from the camp. An investigation ensued that led to the indictment, conviction and sentencing of the contractor defendants, as well as other defendants not a party to this case, for transporting and harboring illegal aliens in violation of 8 U.S.C. §§ 1324(a)(1)(A)(ii) & (iii). On April 26, 2006 the plaintiffs brought claims for violations of the FLSA against all defendants, violations of the AWPA against all defendants, violations of the Racketeer Influenced Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq., against the contractor defendants, violations of the Trafficking Victims Protection Reauthorization Act, 18 U.S.C. §§ 1589 & 1590, against the contractor defendants, and unjust enrichment against Grant and the Grant Family Farms. Grant moves to dismiss the FLSA, AWPA and unjust enrichment claims against him under Fed R. Civ. P. 12(b)(6) for failure to state a claim.

II. STANDARD OF REVIEW

Under Fed.R.Civ.P. 12(b)(6), a district court may dismiss a complaint for failure to state a claim upon which relief can be granted if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). If the plaintiff has pled facts that would support a legally cognizable claim for relief, a motion to dismiss should be denied. See id. In evaluating a 12(b)(6) motion to dismiss, I "accept the factual allegations in the complaint as true" and I "resolve all reasonable inferences in the plaintiffs favor." Morse v. Regents of University of Colorado, 154 F.3d 1124,1126-1127 (10th Cir.1998). "Dismissal under Rule 12(b)(6) is a harsh remedy which must be cautiously studied, not only to effectuate the spirit of the liberal rules of pleadings but also to protect the interests of justice." Id. at 1127. Nonetheless, in a Rule 12(b)(6) motion I consider well-pleaded facts, "as distinguished from conclusory allegations." Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir.1984).

I construe Fed.R.Civ.P. 12(b)(6) in conjunction with Fed. R. Civ. P 8(a), which requires only "a short and plain statement of the claim showing that the pleader is entitled to relief." The statement need not contain detailed facts, but it must "give the defendant fair notice of what the plaintiffs claim is and the grounds upon which it rests." Conley 335 U.S. at 47. "Rule 8(a) established a pleading standard without regard to whether a claim will succeed on the merits." Swierkiewicz v. Soreman N.A., 534 U.S. 506, 515, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002). "Claims lacking merit maybe dealt with through summary judgment under Rule 56." Id. at 514.

III. DISCUSSION

A. Individual Liability Under the Fair Labor Standards Act

*3 Grant argues that plaintiffs' FLSA claims must be dismissed because they have failed to allege specific facts showing that he is personally liable under the FLSA. Congress did not intend the FLSA to lightly disregard the shield from personal liability provided by doing business in a corporate form. Baystate Alternative Staffing, Inc. v. Herman, 163 F.3d 668, 677 (1st Cir.1998). The FLSA does not impose personal liability on "any supervisory employee, even though without any control over the corporation's payroll . . . for the unpaid or deficient wages of other employees." Id. Nor does the FLSA make liable "any corporate officer or other employee with operational control over payroll matters." Id However, because the FLSA does ultimate "transcend traditional common law parameters of the employer-employee relationship" individual liability under the FLSA can attach to corporate officers based on such factors as

Id. at 677678.

While Grant argues that the complaint does not meet this test, he overstates the plaintiffs' burden at this stage of the case, and understates the specificity of their complaint. Plaintiffs allege that Grant is the sole owner of the farm where the workers did most of their work, that he had operational control of the business, and that he was aware of the illegal deductions from the workers' pay. These allegations are sufficient to place Grant on notice of the claims against him. The plaintiffs have satisfied their pleading obligations under Rule 8(a) and Grant's motion fails.

B. Employer Status Under the FLSA and the AWPA

Grant also argues that plaintiffs have failed to allege facts sufficient to show that he is an employer under the FLSA or the AWPA, requiring dismissal of both claims. The FLSA defines an employer as "any person acting directly or indirectly in the interest of an employer in relation to an employee . . ." 29 U.S.C. § 203(d). The FLSA broadens the definitions of employer and employee beyond "strict application of traditional agency principles." Baker v. Flint Engineering & Const. Co., 137 F.3d 1436, 1440 (10th Cir.1998). The FLSA focuses instead on "the economic realities of the relationship" between the employee and the employer, and includes evaluating such factors as "whether the alleged employer has the power to hire and fire employees, supervises and controls employee work schedules or conditions of employment, determines the rate and method of payment, and maintains employment records." Id. Employer status in the food growing industry under the FLSA "must be determined from the relationships in this industry and from a consideration of the facts and circumstances under which pickers are employed." Mitchell v. Hertzke, 234 F.2d 183,189 (10th Cir.1956). The AWPA generally relies on the same definition of employer and employee as the FLSA. 29 C.F.R. § 500.20(h).

*4 The FLSA and the AWPA provide two routes to liability relevant to this case. First, an employer-grower, like Grant, may be liable directly as an employer if the contractor it relies on is itself legally an employee of the grower. In such an instance, the workers in the contractor's crew are also the grower's employees. 29 C.F.R. § 500.20(h). Determining whether a farm labor contractor is a grower's employee or contractor is based on "an evaluation of all of the circumstances," including the following factors:

29 C.F.R. § 500.20(h)(4).

Second, if a contractor is legally a grower's contractor, and not a grower's employee, the grower may still be an employer of the contractor's workers as a joint employer. 29 C.F.R. § 500.20(h)(5). Joint employer status considers "all the facts in the particular case," and whether "two or more persons are completely disassociated with respect to the employment of a particular employee." Id. Several factors serve as "analytic tools" in determining joint employer status, including: whether the grower has the power, "either alone or through control of the farm labor contractor to direct, control or supervise the workers or the work performed," whether the grower has the power to hire, fire, direct the work or modify work conditions, the degree of permanence of the relationship of the parties, the level of skill of the workers, the importance of the services provided by the workers to the overall business operation of the grower, whether the work is performed on the grower's premises and whether the grower is responsible for activities normally done by employers, such as payroll records, issuing pay stubs and providing tools and equipment. 29 C.F.R. § 500.20(h)(5)(iv)(A)-(G).

Grant argues, in relation to the FSLA and the AWPA claims, that the plaintiffs have not alleged facts sufficient to satisfy the legal tests enunciated in the federal regulations. (Grant disputes the legal test for joint employment articulated by plaintiffs, but their test is based on the current version of the federal regulations, while Grant cites to a version of the regulations, and to interpretive case law, that pre-date 1997 revisions in federal regulations. See 62 Fed.Reg. 11747, March 12, 1997.) Grant contends that the allegations in the complaint are too vague to show that he exercised the control necessary to be an employer under the FLSA, and that in fact the complaint describes the contractors as performing the specific functions that define employer status, including handling payroll, providing the workers with tools, recruiting the workers and providing them their daily oversight. Grant points out that the complaint even states that the workers performed at least some of their work on lands not owned or leased by Grant.

*5 However, the complaint also makes numerous allegations that, if true, satisfies the legal definitions of employer or joint employer. Plaintiffs allege that Grant had day to day operational control of the business (Compl. ¶ 44), that Grant oversaw the foremen (Compl. ¶ 45), that the contractors regularly consulted with Grant in the course of the work day (Compl. ¶ 81), that the contractors acted at the direction of or under the supervision of the growers (Compl. ¶ 82), that the growers knew of, condoned and benefitted from the illegal deductions from the workers' pay, (Compl. ¶ 96) and knew of, willfully ignored and condoned abuse of the workers. (Compl. ¶ 104). These allegations, while general to some degree, are sufficient to put Grant on notice of the nature of the plaintiffs' claim. See Conley, 335 U.S. at 47.

While Grant cites to some authority supporting his general argument relating to the level of proof necessary in AWPA and FLSA claims, these cases were decided on summary judgment, with a much fuller factual record. See Aimable v. Long and Scott Farms, 20 F.3d 434 (11th Cir.1994) and Martinez-Mendoza v. Champion Intl Corp., 340 F.3d 1200 (11th Cir.2003). Grant does not point me to any cases dismissing under Rule 12 an FLSA or AWPA claim with this level of detail. At this stage of the case I cannot say that plaintiffs can prove no set of facts that would show that Grant was an employer under the FLSA. Grant's motion to dismiss fails.

C. Unjust Enrichment

Grant moves to dismiss plaintiffs' claim for unjust enrichment. To recover for unjust enrichment, plaintiffs must show that "(1) a benefit was conferred on the defendant by the plaintiff; (2) the benefit was appreciated by the defendant; and (3) the benefit was accepted by the defendant under such circumstances that it would be inequitable for it to be retained without payment of its value." Humphrey v. O'Connor, 940 P.2d 1015, 1021 (Colo.Ct.App.1996). "The scope of this remedy is broad . . . with its application guided by the underlying principle of avoiding the unjust enrichment of one party at the expense of another." Id.

Grant argues that plaintiffs have not stated a claim for unjust enrichment because Grant paid the contractor defendants for plaintiffs' labor. However, the mere fact that Grant paid the contractors does not ineluctably lead to dismissal of this claim. In Humphrey, the plaintiffs alleged only that the defendant "has accepted and appreciated" plaintiffs overpayment and that "it would be unfair, unjust and inequitable for (defendant) to retain the amount by which (plaintiff) overpaid." Id. at 1021-1022. The court found this language, far more sparse and less detailed than the language in plaintiffs complaint here, to be sufficient to state a claim for unjust enrichment. Id. at 1022. The Court also reasoned that the mere fact that there was a mutual benefit to the parties did not obviate the unjust enrichment claim. Id. Considering the complaint in the light most favorable to the plaintiffs, as the Court did in Humphrey and as I must do here, it is significant that plaintiffs allege that Grant was aware of the contractor's illegal deductions from their pay, and that Grant ran the day to day operations of the farm, including oversight of the contractors. I cannot say that plaintiffs can prove no set of facts showing that Grant's acceptance of their labor under these conditions was unjust or inequitable. Grant's motion to dismiss the unjust enrichment claim fails.

*6 It is so Ordered that

Defendant's motion to dismiss plaintiffs first amended complaint (Docket # 9) is DENIED.

DONE and ORDERED.