IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

MIGUEL ANGEL FUENTES )

CORDOVA, et al., etc., )

 )

Plaintiffs, )

 )

v. ) CIVIL ACTION 14-0462-WS-M

 )

R & A OYSTERS, INC., et al., )

 )

Defendants. )

 ORDER

This matter is before the Court on the defendants’ motion for judgment on 

the pleadings. (Doc. 95). The parties have filed briefs in support of their 

respective positions, (Docs. 96, 99, 100, 103), and the motion is ripe for 

resolution. After careful consideration, the Court concludes that the motion is due 

to be denied.

BACKGROUND

According to the amended complaint, (Doc. 20), the plaintiffs are migrant 

workers admitted to work in the United States under the H-2B temporary foreign 

worker visa program. The plaintiffs worked for the entity defendant (“R&A”) and 

the individual defendants at various times between 2008 and 2014, performing 

activities related to oyster processing. 

Count I of the amended complaint alleges minimum wage violations of the 

Fair Labor Standards Act (“FLSA”). Count V alleges retaliation in violation of 

the FLSA. Counts II and VI allege violations of the Migrant and Seasonal 

Agricultural Workers Protection Act (“AWPA”). Count III asserts a claim for 

breach of a contract between the defendants and the plaintiffs, while Count IV 

asserts a claim for breach of a contract between the defendants and the Department 

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of Labor (“DOL”). By previous order, the Court dismissed Counts II, IV and VI. 

On the instant motion, the defendants seek dismissal of Counts III and V.

DISCUSSION

“Judgment on the pleadings is proper when no issues of material fact exist, 

and the moving party is entitled to judgment as a matter of law based on the 

substance of the pleadings and any judicially noticed facts.” Cunningham v. 

District Attorney’s Office, 592 F.3d 1237, 1255 (11th Cir. 2010) (internal quotes 

omitted). “We accept all the facts in the complaint as true and view them in the 

light most favorable to the nonmoving party.” Id. The Court “need not accept as 

true, however, conclusory legal allegations made in the complaint.” Andrx 

Pharmaceuticals, Inc. v. Elan Corp., 421 F.3d 1227, 1230 n.1 (11th Cir. 2005). “If 

upon reviewing the pleadings it is clear that the plaintiff would not be entitled to 

relief under any set of facts that could be proved consistent with the allegations, 

the court should dismiss the complaint.” Horsley v. Rivera, 292 F.3d 695, 700

(11th Cir. 2002). 

I. Breach of Contract.

By regulation, employers employing H-2B workers must pay such workers 

at least the federal minimum wage or the “prevailing wage” as determined by 

DOL. 20 C.F.R. § 655.20. In support of its annual applications to DOL for 

temporary employment certification to hire H-2B workers, R&A certified that it 

would do so. The plaintiffs assert that these certifications, attestations and 

regulatory requirements created an offer of employment, which they accepted by 

traveling to the United States and performing services. They allege that the 

defendants breached this contract by compensating them below the federal 

minimum wage and prevailing wage. (Doc. 20 at 21-22; Doc. 99 at 5-6). The 

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defendants respond that the alleged contract is not supported by legally sufficient

consideration. (Doc. 96 at 2, 4).1

Count III is brought pursuant to Alabama law. (Doc. 20 at 1). The 

defendants’ sole argument is that “Alabama law clearly holds that a promise to do 

that which one is already legally obligated to do cannot constitute valid 

consideration for a contract.” (Doc. 96 at 2). This appears to be a correct 

statement of the law. E.g., Mobile Turnkey Housing, Inc. v. Ceafco, Inc., 321 So. 

2d 186, 190 (Ala. 1975) (“But where one party refuses to do the work, which his 

contract requires him to do, ... unless he is paid more, and the other promises to 

pay more, the original contract still remaining subsisting, we consider it merely a 

promise to pay for what he was already obliged to do, and a nudum pactum ....”) 

(emphasis added, internal quotes omitted); Little v. Redditt, 88 So. 2d 354, 357 

(Ala. 1956) (“It is an established principle that the doing or undertaking to do only 

that which one is already under a legal obligation to do by his contract is no 

consideration for the secondary, subsequent, or new agreement.”) (emphasis 

added, internal quotes omitted); Griffin v. Hardin, 456 So. 2d 1113, 1116 (Ala. 

Civ. App. 1984) (“A promise to do what one is already under a legal obligation to 

 1 The plaintiffs describe their arrangement with the defendants as a “unilateral 

employment contract.” (Doc. 99 at 5). The defendants in their reply brief object that the 

amended complaint does not allege such a contract. (Doc. 103 at 4-5 & 4 n.1). The 

defendants’ point is obscure, but they appear to believe their consideration argument does 

not fare as well in the context of a unilateral employment contract. The Court does not 

see the connection. 

At any rate, the defendants have failed to demonstrate that the amended complaint 

rules out a unilateral employment contract. They seize on the pleading’s allegation that 

the certifications and so forth “constituted the employment contracts,” (Doc. 20 at 21), 

and its failure to expressly “allege Defendants made any additional offer,” (Doc. 103 at 

4), but an allegation of what constituted the contract does not of itself negate an offer of 

such terms to the plaintiffs or an acceptance of them by performance. Moreover, any 

argument that the amended complaint fails to allege adequately the elements of a claim 

for breach of contract must be made by separate motion, not in a reply brief on a motion 

seeking dismissal solely on the grounds the contract is unsupported by legally sufficient 

consideration. Gross-Jones v. Mercy Medical, 874 F. Supp. 2d 1319, 1330 n.8 (S.D. Ala. 

2012) (citing cases and explaining rationale). 

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do is not a sufficient consideration for another contract.”) (emphasis added); Gloor 

v. BancorpSouth Bank, 925 So. 2d 984, 992 (Ala. Civ. App. 1992) (quoting 

Griffin). 

Applying the principle to this case, the defendants argue that the alleged 

promise to pay the plaintiffs at least the higher of the prevailing or federal 

minimum wage “is an obligation already imposed on R&A by law.” (Doc. 96 at 

4). The plaintiffs respond that “already” in the context of Alabama’s 

consideration jurisprudence means not simply that a legal obligation is already on 

the books somewhere but that the obligation is already and presently enforceable 

by the promisee against the promisor. (Doc. 99 at 6-8). If the plaintiffs’ argument 

is correct, the defendants’ motion must fail, because the plaintiffs could not have 

legally enforced the alleged offer to pay them a particular wage before they 

accepted the offer so as to form a contract. 

The Alabama appellate courts appear not to have considered this question; 

in all the Alabama cases cited by the Court and the parties, the promisor was 

already subject to a presently enforceable obligation (by virtue of an existing 

contract, an existing judgment, or a statutory command) to pay or do what it 

offered to pay or do, so the plaintiffs’ proposed distinction did not come into play. 

But the plaintiffs do cite one case that has addressed the precise issue presented 

here and resolved it favorably to the plaintiffs. 

In Moodie v. Kiawah Island Inn Co., ___ F. Supp. 3d ___, 2015 WL 

5037038 (D.S.C. 2015), the plaintiffs, as here, were H-2B workers who alleged the 

defendant breached a contract to pay them the prevailing wage. The defendant, as 

here, argued that any such contract failed for lack of consideration because the 

defendant was already legally obligated by regulation to pay the prevailing wage. 

Id. at *12. The Moodie Court, construing South Carolina authority apparently 

indistinguishable from the Alabama authority on which the defendants rely, 

concluded that the defendant “misunderstands this long-standing doctrine of 

contract law,” which it explained as follows:

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In other words, if a party is legally obligated to do something prior 

to entering into the contract, a promise to perform that legal obligation 

is not consideration for the contract. ...

Here, Defendant is not under any prior obligation to pay Plaintiffs 

anything and, thus, not “already legally bound” to pay Plaintiffs the

prevailing wage. Instead, the H-2B regulations set the minimum 

consideration that Defendant must offer for this specific type of 

employment contract. It is a contingent legal obligation, dependant 

[sic] on Defendant entering into employment contracts with H-2B 

workers. This obligation arose with the contract .... 

Id. at *12-13 (emphasis in original).

The defendants make no effort to distinguish Moodie or to challenge its 

legal reasoning; on the contrary, they concede that it “merit[s] consideration.” 

(Doc. 103 at 3). The defendants believe, however, that Moodie’s persuasive value

is outweighed by that of two other guest worker cases. The Court disagrees. 

Neither Bojorquez-Moreno v. Shores & Ruark Seafood Co., 92 F. Supp. 3d 459, 

468 (E.D. Va. 2015), nor Rao v. Covansys Corp., 2007 WL 3232492 at *4 (N.D. 

Ill. 2007), considered the distinction articulated in Moodie, so the Court finds them 

less than compelling. 

“It is a basic principle that justice is not served when somebody gets 

something for nothing ....” Lake Martin/Alabama Power Licensee Association, 

Inc. v. Alabama Power Co., 601 So. 2d 942, 944 (Ala. 1992) (internal quotes 

omitted).

2 The requirement of mutual consideration serves this principle, because 

it ensures that both sides receive something for something, not something for 

nothing. Under the plaintiffs’ allegations, both they and the defendants received 

something for something: the defendants received labor (or a promise of such 

labor), and the plaintiffs received wages for their labor (or a promise of such 

wages). Until the moment a contract was formed by acceptance of an offer, the 

 2 Accord York Manufacturing Co. v. Bessemer Ice Manufacturing & Storage Co., 

20 So. 13 (Ala. 1896) (one who agrees to add value to another’s property, but who 

instead decreases its value, “is entitled to nothing. To hold otherwise would require the 

party to pay something for nothing.”); Alabama & Florida Railroad Co. v. Burkett, 46 

Ala. 569, 571 (Ala. 1871) (“The law does not allow something for nothing.”).

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defendants were not entitled to such labor and the plaintiffs were not entitled to 

such compensation. This mutual exchange of promises to bestow benefits on the 

other gave each side something it had not possessed before that instant and so 

provided legally sufficient consideration.3 Federal law may have dictated how 

much compensation the defendants must pay should they contract with the 

plaintiffs, but it did not dictate that the defendants must pay the plaintiffs such 

sums even if they never hired the plaintiffs. 

The Court’s role in this diversity case, in the absence of an Alabama 

Supreme Court decision resolving the question, is to “anticipate how the Supreme 

Court would decide this case.” State Farm Mutual Automobile Insurance Co. v. 

Duckworth, 648 F.3d 1216, 1224 (11th Cir. 2011). The Court concludes that the 

Alabama Supreme Court would, consistently with Moodie, limit the principle for 

which the defendants contend to situations in which the promisor’s consideration, 

at the time is it offered, is already an obligation owed by the promisor to the 

promisee and presently enforceable against the promisor by the promisee.4 Since 

that is not the situation presented here, the defendants’ argument fails.

 3 “It is generally stated that in order to constitute consideration for a promise, 

there must have been an act, a forbearance, a detriment, or a destruction of a legal right, 

or a return promise, bargained for and given in exchange for the promise.” Kelsoe v. 

International Wood Products, Inc., 588 So. 2d 877, 878 (Ala. 1991). 

4 The defendants suggest the Court should or must accept their position because it 

did so previously in granting their motion to dismiss Count IV; indeed, they stress this 

point no fewer than eight times in their reply brief. (Doc. 103 at 2-7). The plaintiffs 

respond that “whether a promise to the government not to violate the law is valid 

consideration for a contract with the government is irrelevant to the validity of Plaintiffs’ 

employment contract with Defendants.” (Doc. 99 at 8 (emphasis in original)). In 

addition, the Court’s prior ruling was based on extremely limited briefing and without 

citation to Moodie (which had not yet been decided), and it in nowise binds the Court on 

the instant motion. Cf. Hawk v. Klaetsch, 2012 WL 6569286 at *3 (S.D. Ala. 2012) (lawof-the-case doctrine does not apply to a trial court’s own rulings). 

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II. FLSA Retaliation.

According to the amended complaint, the defendants promised to sponsor 

many of the plaintiffs for H-2B visas for the 2014-2015 season (as they had done 

in previous years) but, shortly after being served with process in this lawsuit, they 

revoked their offer to sponsor seven plaintiffs (“the retaliation plaintiffs”) who had 

not yet received their visas. (Doc. 20 at 23-24). The defendants raise two 

arguments in opposition to this claim.

A. Gratuitous Promise.

The defendants deny making any promise to sponsor the retaliation 

plaintiffs, but they also argue that any such promise was a merely “gratuitous 

promise,” the revocation of which cannot constitute an “adverse action” for 

purposes of an FLSA retaliation claim. (Doc. 96 at 5-6).5 

The retaliation plaintiffs point out a number of shortcomings in the 

defendants’ brief presentation: (1) no showing that the Eleventh Circuit 

recognizes a “gratuitous promise” exception; (2) no showing that a “gratuitous 

promise” exception applies under the FLSA; (3) no showing that the defendants’ 

promise to sponsor the plaintiffs was a “gratuitous promise” within the 

contemplation of the exception; and (4) no showing that the “gratuitous promise” 

exception is consistent with the Supreme Court’s description of what constitutes 

an adverse action. (Doc. 99 at 9-12). The Court agrees with each of these points

but addresses only the last of them. 

The defendants’ principal authority is A Society Without a Name v. 

Virginia, 655 F.3d 342 (4th Cir. 2011) (“ASWAN”), which declared that “retracting 

a gratuitous promise does not amount to a discriminatory act or an adverse action” 

 5 A prima facie case of FLSA retaliation requires a showing that the plaintiff 

engaged in protected activity, that he “subsequently suffered adverse action by the 

employer,” and that a causal connection exists between the two. E.g., Wolf v. Coca-Cola 

Co., 200 F.3d 1337, 1342-43 (11th Cir. 2000).

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for purposes of a retaliation claim under the ADA. Id. at 350. The ASWAN Court 

did not propound this rule but borrowed it from Stiltner v. Beretta U.S.A. Corp., 74 

F.3d 1473 (4th Cir. 1996) (en banc), which established the rule in the ERISA 

context. 

Ten years after Stiltner was decided, the Supreme Court announced that the 

anti-retaliation provision of Title VII “covers those (and only those) employer 

actions that would have been materially adverse to a reasonable employee or job 

applicant. In the present context that means that the employer’s actions must be 

harmful to the point that they could well dissuade a reasonable worker from 

making or supporting a charge of discrimination.” Burlington Northern and Santa 

Fe Railway Co. v. White, 548 U.S. 53, 57 (2006); accord id. at 68.6 It is difficult 

to see how revoking a promise to sponsor the retaliation plaintiffs for H-2B visas 

could fail to constitute an “adverse action” under this standard; without the 

sponsorship no visa could issue, and without the visa the retaliation plaintiffs 

could not be guest workers (as they had been in years past) and so could not earn 

income – an economic loss that presumably would discourage a reasonable worker 

from registering an FLSA complaint.

7

 6 The defendants do not deny that Burlington Northern applies to retaliation cases 

under the FLSA. See, e.g., Mullins v. City of New York, 626 F.3d 47, 53 (2nd Cir. 2010) 

(Burlington Northern applies in the FLSA context); Darveau v. Detecon, Inc., 515 F.3d 

334, 342-43 (4th Cir. 2008) (same); McBurnie v. City of Prescott, 511 Fed. Appx. 624, 

625 (9th Cir. 2013) (same). 

7 Revoking a promise to sponsor the retaliation plaintiffs (who were all past guest 

workers for the defendants) for H-2B visas looks a lot like the non-renewal of a teacher’s 

contract, which constituted an “adverse employment action” even under the tighter, preBurlington Northern standard. Johnson v. Atlanta Independent School System, 137 Fed. 

Appx. 311, 315 (11th Cir. 2005). It also looks a lot like the withdrawal of an offer of 

employment, which likewise constituted an adverse employment action under the preBurlington Northern standard. See Graham v. Gonzales, 157 Fed. Appx. 139, 142 (11th

Cir. 2005) (taking that proposition as a given). 

The defendants assert that an employer’s decision not to sponsor an H-1B visa for 

an existing employee did not constitute an “adverse employment action” under the preBurlington Northern regime. (Doc. 103 at 8). The Court does not find the defendants’ 

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ASWAN was decided several years after Burlington Northern, but the 

majority opinion did not acknowledge that case or attempt to reconcile its 

“gratuitous promise” jurisprudence with the Supreme Court’s “materially adverse” 

standard. In dissent, however, Judge Motz acknowledged Burlington and 

concluded that, “under that standard, the retraction of gratuitous benefits 

constitutes adverse action.” 655 F.3d at 352-53 (Motz, J., concurring in part and 

dissenting in part). The defendants ignore Judge Motz’s opinion, insisting that the 

majority opinion’s silence is all that is necessary to demonstrate that the 

“gratuitous promise” exception “work[s] in harmony” with Burlington Northern, 

on the theory that the revocation of a gratuitous promise, “as a matter of law,” 

cannot be “materially adverse.” (Doc. 103 at 7-8). The Court cannot make that 

impressive logical leap; an action is materially adverse if it could dissuade a 

reasonable worker from complaining of unlawful conduct, and the retraction of 

even a gratuitous benefit would seem capable of drawing such a response; 

certainly the defendants have failed to show otherwise.8

B. Unauthorized Alien.

According to the defendants, the Supreme Court “has made it clear that a 

foreign national not authorized to work in the United States cannot recover back 

 

single authority persuasive on this point and, at any rate, this case is to be decided under 

the lower, “materially adverse” standard introduced by Burlington Northern. 

8 The Stiltner Court, in construing ERISA’s anti-retaliation provision, relied on 

the NLRA, which the Fourth Circuit found to limit protection against retaliation to 

discrimination “in regard to ... any term or condition of employment.” 74 F.3d at 1483 

(internal quotes omitted). The Fourth Circuit also relied on ERISA cases that limited 

actionable retaliation “to actions affecting the employer-employee relationship.” Id. at 

1484. The Burlington Northern Court, however, expressly rejected both lines of 

reasoning in the Title VII context. First, “the antiretaliation provision ... is not limited to 

discriminatory actions that affect the terms and conditions of employment.” 548 U.S. at 

64. Second, “the scope of the antiretaliation provision extends beyond workplace-related 

or employment-related retaliatory acts and harm.” Id. at 67. The Supreme Court having 

rejected the underpinnings of the Fourth Circuit’s “gratuitous promise” jurisprudence

under an employment discrimination statute, it is difficult to see how the doctrine could 

survive in that context.

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pay in retaliation cases.” (Doc. 96 at 6). The retaliation plaintiffs are foreign 

nationals and, because they do not have H-2B visas, they are not authorized to 

work in the United States. Thus, the defendants conclude, they cannot recover 

back pay (the wages they would have earned from the defendants during the 2014-

2015 season) under their retaliation claim. Of course, the very reason the

retaliation plaintiffs have no H-2B visas (according to their allegations) is that the 

defendants violated the FLSA by withdrawing their sponsorship for the visas in 

retaliation for their having brought this action.

9

 The defendants brush this 

observation aside with the insistence that a rule is a rule. (Doc. 103 at 12-13). 

They have failed, however, to persuade the Court that the rule extends so far. 

The defendants rely on Hoffman Plastic Compounds, Inc. v. National Labor 

Relations Board, 535 U.S. 137 (2002). In Hoffman, a Mexican national who “had 

never been legally admitted to, or authorized to work in, the United States ... 

gain[ed] employment with [the petitioner] only after tendering a birth certificate 

belonging to a friend who was born in Texas” – that is, by the use of fraudulent 

documents in violation of the Immigration Reform and Control Act of 1986 

(“IRCA”). Id. at 141. Unaware of the worker’s illegal status, the petitioner laid 

 9 In their reply brief, the defendants deny that their withdrawal of sponsorship for 

the H-2B visas caused the retaliation plaintiffs not to receive them, on the grounds that 

government officials have the authority to deny a visa even after the employer agrees to 

sponsor an individual. (Doc. 100 at 13). As discussed in note 1, supra, the defendants 

cannot obtain dismissal on a ground they first raised in reply. 

At any rate, the defendants have not attempted to show that the government’s role 

in the issuance of H-2B visas breaks the chain of causation as a matter of law. The most 

they can muster is their unsupported insistence that the “Department of State is much 

more than a rubber stamp.” (Doc. 100 at 13). Perhaps so but, according to the amended 

complaint, in practice the government has repeatedly and for years issued the retaliation 

plaintiffs H-2B visas when sponsored by the defendants, and it issued other plaintiffs H2B visas for the 2014-2015 season based on the defendants’ sponsorship – right up to the 

point the defendants realized they had been sued and swiftly withdrew their sponsorship 

as to those plaintiffs whose visas had not yet issued. (Doc. 20 at 23-24). The defendants’ 

suggestion that the plaintiffs have alleged nothing to support the conclusion that they 

would have received visas but for the defendants’ revocation of sponsorship, (id. at 13-

14), must therefore be rejected. 

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him off in unlawful retaliation for his suspected union activities. Id. at 140. The 

NLRB ruled that the worker’s remedy should include backpay for an extended 

period following his layoff. Id. at 141-42. The Supreme Court, however:

conclude[d] that allowing the Board to award backpay to illegal 

aliens would unduly trench upon explicit statutory prohibitions 

critical to federal immigration policy as expressed in IRCA. It 

would encourage the successful evasion of apprehension by 

immigration authorities, condone prior violations of the immigration 

laws, and encourage future violations. 

Id. at 151. 

The defendants would read Hoffman as a universal prohibition on backpay 

to illegal aliens, regardless of the circumstances, but it seems clear from the 

foregoing quote that the prohibition depends on whether the award of backpay in a 

particular case runs counter to the immigration policies animating IRCA. The 

defendants have not attempted to show that an award of backpay here would 

conflict in any way with national immigration policy.

Nor does it appear to the Court that such an award would do so. Unlike the 

worker in Hoffman, the retaliation plaintiffs have never been in this country 

without legal authorization, and they are no threat to enter illegally now. On the 

contrary, according to the amended complaint they have at every point played by 

the immigration rules. An award of backpay to the retaliation plaintiffs would not 

encourage anyone to use fraudulent documents to obtain employment (since they 

did not), would not overlook past immigration violations (since there are none),

and would not encourage others to violate immigration laws in the future (since 

the retaliation plaintiffs would not receive backpay in direct or indirect 

consequence of any such violation).

While granting an award of backpay thus would not reward the retaliation 

plaintiffs for illegal conduct, denying an award of backpay would reward the 

defendants for their allegedly illegal conduct. Employers such as the defendants 

could freely retaliate against foreign workers who complain of legal violations by 

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withholding or revoking sponsorship for guest worker status, confident that their 

very act of unlawful retaliation would itself eliminate the workers’ recovery for 

such retaliation. In the words of the Hoffman Court, such an approach would 

“condone prior violations of [the FLSA] and encourage future violations.” 535 

U.S. at 151. The defendants have not attempted to justify such a perverse result. 

CONCLUSION

For the reasons set forth above, the defendants’ motion for judgment on the 

pleadings is denied.

DONE and ORDERED this 8th day of March, 2016.

 

s/ WILLIAM H. STEELE 

CHIEF UNITED STATES DISTRICT JUDGE

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