Labor & Employment Law Daily Wrap Up, RETALIATION—W.D. Tenn.: Pig farmer showed discipline of H-2A workers was not retaliation under FLSA, (Oct 1, 2025)

By Ronald Miller, J.D.

The Secretary failed to meet her burden to produce evidence to show that the employer’s stated reason for the adverse action was pretextual.

A pig farmer was entitled to summary judgment in a suit brought by the Secretary of Labor alleging that the employer retaliated against two H-2A visa workers who engaged in protected activity, ruled a federal district court in Tennessee. The employees participated in a Department of Labor investigation that resulted in findings that the employer had violated the regulations governing the H-2A visa program. The employees were later disciplined and ultimately terminated for harassing their coworkers. Here, the court determined that the Secretary failed to point to evidence showing that employer's nondiscriminatory reason for discharging the employees was pretextual (Chavez-DeRemer v. Tosh Pork, LLC, No. 1:24-cv-01038-STA-jay (W.D. Tenn. Sept. 30, 2025)).

H-2A visa program. The employer, Tosh Pork, operates pig farms located in Tennessee. The plaintiffs in this action are a husband and wife who were employees of the employer. Both were H-2A visa workers under the Immigration and Nationality Act.

The H-2A visa program allows U.S. based employers, who meet certain requirements, to hire workers from other countries to perform agricultural work of a temporary or seasonal nature. The “TN visa” is a work visa intended for individuals with professional certifications from Canada and Mexico. This visa allows citizens of Mexico or Canada to work in the United States for a period of three years, subject to extension and renewal. The employees are Mexican nationals who worked for Tosh Park pursuant to the TN visa program.

Employee complaint. On February 28, 2022, the wife made a complaint against the employer regarding the requirements applicable to the employment of H-2A visa workers, including whether workers were required to pay for their housing and travel. They also complained about the poor conditions of their housing.

DOL investigation. As a result of that complaint, DOL’s Wage and Hour Division conducted an investigation, ultimately determining that Tosh Farms had violated the regulations governing the H-2A visa program in several ways. The wife also complained multiple times in 2021 and 2022 about issues with her pay.

In September 2023, the Wage and Hour Division found that Tosh Farms underpaid five workers by approximately $39,000. The agency also assessed civil money penalties totaling $36,741 for these violations. Additionally, Tosh made repairs to the housing as required by DOL. The wife reported a fear of retaliation during the investigation, but the Wage Hour investigator did not substantiate that claim.

The wife continued to complain to the employer about her pay and/or work hours after the Wage and Hour Division investigation. During this same time period, both husband and wife participated in a WhatsApp group chat with other employees, wherein issues at work were discussed, including issues regarding pay.

After the settlement, the husband felt that his supervisor became more critical, used a loud voice when communicating with him, and stared at him. He complained to the supervisor in early January 2024 about his wages, to no effect.

Complaints about employees. On January 18, 2024, three employees had made verbal complaints regarding behavior of the husband and wife that was causing stress to those employees. They had asked the three employees not to show up for work on January 14, 2024. The husband and wife were given warnings that harassment at work was unacceptable and told to stop harassing their coworkers.

After the husband had been issued his warning, he found a decapitated pig head in the bucket of the tractor he was to use to take pig carcasses for compost. He reported the incident to a supervisor and described it as an act of intimidation.

Retaliation investigation. The DOL opened a second investigation against the employer in February 2024 for alleged retaliation against the husband and wife. In October 2024, both husband and wife were terminated.

Section 215(a)(3) of the FLSA prohibits retaliatory action against employees who file complaints, pursue actions, or participate in proceedings under the FLSA. The amended complaint in this matter identifies the protected activity as the February 28, 2022 complaint filed by the wife and complaints made by the husband and wife about how they were paid in the weeks after the February complaint. According to the complaint, the employees were pressured to resign and/or threatened with termination; issued disciplinary notices; ordered to stop communicating about overtime pay with other employees; threatened by placing a severed pig head in the bucket of a tractor; accused of creating tension among other employees; and berated due to their activities.

Prima facie case. Because the Secretary pointed to no direct evidence of retaliation, the court looked to the burden-shifting framework. A plaintiff must show four elements to establish a prima facie case of retaliation under Section 215: (1) he or she engaged in a protected activity under the FLSA; (2) his or her exercise of this right was known by the employer; (3) thereafter, the employer took an employment action adverse to him or her; and (4) there was a causal connection between the protected activity and the adverse employment action.

As to the first factor, it was undisputed that both husband and wife reported FLSA violations to the DOL which resulted in an investigation and subsequent fines and penalties assessed against the employer. Thus, they engaged in protected activity under the FLSA which was known to the employer.

Adverse actions. The parties disagreed as to whether the Secretary had shown that the employer took adverse actions against the employees. At the outset, the court finds that the Secretary failed to refute the employer’s evidence that neither none of its managers or supervisors had anything to do with the placement of the pig head in the tractor bucket. Accordingly, the court found that the events surrounding the pig head in the bucket did not constitute an adverse action.

As for the Secretary’s claims concerning the treatment of the husband by his supervisor, the employer did not dispute that, beginning in September 2023, he thought that his supervisor was “pressuring him while at work.” However, the court noted that it is well-settled that a “bruised ego” does not constitute an adverse action. In the present case, there is no evidence that the husband’s work hours, pay, and job responsibilities were affected by any actions of his supervisor in pressuring him or questioning his work. Therefore, the court found that the supervisor’s actions toward the husband did not constitute an adverse action.

Disciplinary notices. The Secretary next claimed that the disciplinary notices constituted adverse action because they contained the “threat” that future disciplinary action if the employees continued to “harass” their coworkers. They were in fact terminated in October 2024.

In January 2024, both the husband and wife received the least amount of discipline under the employer’s progressive discipline policy, i.e., a “documented verbal warning.” Previously, the court determined that the Secretary failed to show that the employer took an adverse action against them because a write-up alone, without some other adverse effect, is not sufficient to constitute an adverse employment action.

The question now is whether the disciplinary notices, which were part of a progressive discipline plan, coupled with a later termination, were an adverse action. Disciplinary notices that are part of progressive discipline that leads to termination might dissuade a reasonable employee from making a complaint about their wages.

Non-discriminatory rationale. In this case, the employer stated a non-discriminatory reason for the January 2024 write-ups that the husband and wife received: reports that they were harassing their coworkers which was causing stress in the workplace. On the other hand, the Secretary failed to point to evidence in the record to show that the employer’s proffered reason was pretext for illegal discrimination. Instead, the undisputed evidence showed that they were disciplined after three employees made complaints regarding their disruptive behavior.

Accordingly, the employer was entitled to summary judgment.

The case is No. 1:24-cv-01038-STA-jay.

Judge: Anderson, S.

Attorneys: Thomas J. Motzny, U.S. Department of Labor, for Lori Chavez-DeRemer. Joseph Russ Bryant (Jackson Shields Yeiser & Holt) for Tosh Pork, LLC and Dianna Rosa.

Companies: Tosh Pork, LLC

Cases: Retaliation WageHour Discharge Immigration AgencyNews TennesseeNews