Waltrip et al v. TransWood Logistics, Inc. et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
JUSTON WALTRIP, NATHANIEL
COOLEY, JAMES ACEVEDO, and
MELVIN SANCHEZ, on behalf of
themselves and others similarly situated,
Plaintiffs,
v. No. 1:24-cv-00672-SMD-KK
TRANSWOOD LOGISTICS, INC.,
TRANSWOOD, INC., and
TRANSWOOD CARRIERS, INC.,
Defendants.
ORDER GRANTING IN PART PLAINTIFFS’ MOTION FOR A TEMPORARY
RESTRAINING ORDER
THIS MATTER is before the Court on Plaintiffs’ motion for a temporary restraining order.
Doc. 88 (“Pls.’ TRO Mot.”). Defendants responded (Doc. 90 (“Defs.’ Resp.”)) and Plaintiffs
replied (Doc. 91 (“Pls.’ Reply”)). Having considered the motion, Defendants’ response, Plaintiffs’
reply, all tendered Exhibits, and the relevant law, the Court GRANTS Plaintiffs’ request to enjoin
Defendants from retaliating against employees who participate in the underlying class action. The
Court RESERVES ruling on the remainder of Plaintiffs’ requests for relief until after the
preliminary injunction hearing. The temporary restraining order shall be in effect for 14 days.
BACKGROUND
Plaintiffs represent a class of truck drivers employed by Defendants to haul crude oil
throughout New Mexico. See Doc. 47. The underlying complaint alleges that Defendants failed
to account for time spent on a variety of tasks and thus violated the minimum wage provisions of
the Fair Labor Standards Act and New Mexico Minimum Wage Act. Id. On February 26, 2026,
Case 1:24-cv-00672-SMD-GBW Document 92 Filed 05/08/26 Page 1 of 10

2
the Court certified a Rule 23 class for the New Mexico state law claims. See Doc. 80. Class
members received notice of the action in early April of 2026. Doc. 88, Ex. B.
Plaintiffs are now seeking a temporary restraining order (“TRO”). They allege that
following certification, supervisors discouraged drivers from participating in the suit and in
violation of the FLSA’s anti-retaliation protection. Plaintiffs attach the declarations of Zachary
Wier and Javier Martinez. Mr. Wier, who was previously a TransWood driver, states that when he
inquired about returning to TransWood Carriers, TransWood General Manager Chris Perez told
him that “as a precondition [he] would have to drop out of the case against TransWood and
withdraw [his] wage claims.” Doc. 88, Ex. A (“Wier Decl.”) at 1. Defendants responded with a
declaration from Perez, who asserts that he never told Wier he would have to withdraw himself
from the lawsuit to be eligible for future employment at TransWood. Doc. 90, Ex. 1 (“Perez
Decl.”) at 1. Plaintiffs then attached a second declaration from Wier in their reply. Doc. 91, Ex. E
(“Second Wier Decl.”) at 1. He maintains that Perez informed him that if he exited the lawsuit, he
might considering rehiring Wier and that the statements made in his original declaration are
correct. Id.
Martinez has been working as a truck driver at TransWood for the past year and a half.
Doc. 91, Ex. D at 1 (“Martinez Decl.”). Martinez claims that TransWood General Manager Chris
Perez terminated him on April 29, 2026. Id. Martinez was fired one day after Defendants filed
their response. At this termination meeting, Perez allegedly complained that the lawsuit was
creating “many problems” and “questioned why [the drivers] are suing them if they are doing
things correctly.” Id. “He further stated that there are five drivers who want to return to work, but
he refuses to allow them to return because they did not give two weeks’ notice and because they
are part of the lawsuit.” Id.
Case 1:24-cv-00672-SMD-GBW Document 92 Filed 05/08/26 Page 2 of 10

3
Plaintiffs ask for the following relief:
(1) An order enjoining Defendants from terminating or threatening to terminate or
otherwise retaliating against current and former employees based on the belief that they
participated in this case;
(2) Requiring Defendants to permit a representative of the Plaintiffs, within one week of
the entry of the Court’s Order, to read aloud during the employees’ paid working hours
the attached anti-retaliation statement (attached to the Motion as Exhibit C) to all class
members or persons receiving notice and employed by Defendants, informing them of
their right to participate in this case free from all retaliation or threats of retaliation or
intimidation by Defendants;
(3) Requiring Defendants to post in a conspicuous location at each work site a hard copy
of the attached anti-retaliation statement (attached to the Motion as Exhibit C), and
permitting Plaintiffs and Class counsel to disseminate the notice in the same manner as
class notice;
(4) Requiring Defendants to provide Plaintiffs and the Class Counsel with a complete list
of all employees employed by Defendants who have communication with Plaintiffs or
the Class regarding this suit and written documentation of efforts to preserve all such
communications.
Pls.’ TRO Mot. at 13. Plaintiffs do not specify how long they would like the TRO to remain in
place. For purposes of this order, the Court only considers the propriety of a fourteen-day
injunction. “After fourteen days, either lapses or becomes a preliminary injunction.” Tooele Cnty.
v. United States, 820 F.3d 1183, 1186 (10th Cir. 2016). Plaintiffs rely almost exclusively on
declarations to support their motion. However, the Tenth Circuit has instructed that “a preliminary
injunction should not issue on the basis of affidavits alone.” Lane v. Buckley, 643 Fed. App’x. 686,
689 (10th Cir. 2016); see, e.g., N.M. Dep’t of Game & Fish v. United States Dep’t of the Interior,
854 F.3d 1236, 1253–54 (10th Cir. 2017) (finding district court abused its discretion in granting
preliminary injunction where a “declaration [was] all the district court had before it when it found
the State had established it would suffer irreparable harm”). The Court therefore will not extend
relief beyond 14 days until after a preliminary injunction hearing is held.
Case 1:24-cv-00672-SMD-GBW Document 92 Filed 05/08/26 Page 3 of 10

4
LEGAL STANDARD
A temporary restraining order is intended to preserve the status quo before a final decision
on the merits. Colo. Motor Carriers Ass’n v. Town of Vail, 153 F.4th 1052, 1065 (10th Cir. 2025).
The status quo is defined as “the last peaceable uncontested status existing between the parties
before the dispute developed . . .” Free the Nipple-Fort Collins v. City of Fort Collins, 916 F.3d
792, 798 n.3 (10th Cir. 2019). To obtain a temporary restraining order, the movant must show:
(1) they are likely to succeed on the merits; (2) they would likely suffer irreparable injury without
the injunction; (3) the balance of equities favors them; and (4) an injunction would serve the public
interest. Populist Party v. Herschler, 746 F.2d 656, 658 (10th Cir. 1984).
DISCUSSION
I. Whether Plaintiffs are Likely to Succeed on Their Retaliation Claim.
The FLSA prohibits an employer from discharging or otherwise discriminating against any
employee “because such employee has filed any complaint or instituted or caused to be instituted
any proceeding under or related to” the FLSA. 29 U.S.C. § 215(a)(3). In parallel, the NMMWA
prohibits “an employer or any other person to discharge, demote, deny promotion to or in any other
way discriminate against a person in the terms or conditions of employment in retaliation for the
person asserting a claim or right pursuant to the Minimum Wage Act or assisting another person
to do so or for informing another person about employment rights.” N.M. Stat. § 50-4-26.1 (2025).
The Court relies on federal precedent regarding the FLSA’s retaliation provision in evaluating the
propriety of Plaintiffs’ state law claim. Olivo v. Crawford Chevrolet, Inc., 2012 WL 12897385, at
*4 (D.N.M. 2012).
FLSA retaliation claims follow the McDonnell Douglas burden-shifting framework.
Pacheco v. Whiting Farms, Inc., 365 F.3d 1199, 1206 (10th Cir. 2004). First, the plaintiff must
show that: (1) he or she engaged in activity protected by the FLSA; (2) he or she suffered adverse
Case 1:24-cv-00672-SMD-GBW Document 92 Filed 05/08/26 Page 4 of 10

5
action by the employer subsequent to or contemporaneous with such employee activity; and (3) a
causal connection existed between the employee’s activity and the employer’s adverse action.
Conner v. Schnuck Mkts., Inc., 121 F.3d 1390, 1394 (10th Cir. 1997). If those demonstrations are
made, the employer can “offer a legitimate non-retaliatory reason for the adverse employment
action.” Pacheco, 365 F.3d at 1207. Then the burden returns to the plaintiff to “show genuine
issues of material fact exist regarding whether the employer’s proffered reason is unworthy of
credence.” Id.
Plaintiffs state a prima facie case of retaliation. It is undisputed that class members are
engaging in protected activity by suing for violations of the FLSA and NMMWAs’ overtime
provisions. Second, the submitted declarations indicate two distinct forms of retaliation:
(1) refusal to rehire and (2) termination. Although Defendants do not currently employ Wier, their
purported discrimination against him in hiring is a form of retaliation. Utter v. Colclazier, 714 F.
App’x 872, 884 (10th Cir. 2017) (“[I]t is clearly established that failure to renew a contract or to
rehire an employee constitutes adverse action.”); Wilkerson v. New Media Tech. Charter Sch. Inc.,
522 F.3d 315, 320 (3d Cir. 2008) (“[F]ailure to rehire can constitute an adverse employment
action.”). Martinez has likewise suffered an adverse employment action and proffered facts
sufficient to infer a causal connection between his termination and the protected activity. The Act
explicitly identifies discharge as a form of retaliation. 29 U.S.C. § 215(a)(3). The Tenth Circuit
has explained that “[w]hen the ‘immediate cause or motivating factor of a discharge is the
employee's assertion of statutory rights, the discharge is discriminatory under § 215(a)(3) whether
or not other grounds for discharge exist.’” Conner, 121 F.3d at 1394. Martinez claims that Perez
“did not provide [him] with a clear reason for [his] termination.” Martinez Decl. at 1. This
accusation, combined with the propinquity between class notice and Martinez’s termination, shows
Case 1:24-cv-00672-SMD-GBW Document 92 Filed 05/08/26 Page 5 of 10

6
a potential causal connection between the protected activity and the retaliatory conduct. Although
Defendants have not had the opportunity to reply to the allegations made in Martinez’s declaration,
the Court finds that they are sufficiently specific for a prima facia case.
Defendants argue that Plaintiffs’ evidence cannot sustain a retaliation claim. They note
that although Plaintiffs assert Perez “made similar coercive statements to other unnamed class
members,” Plaintiffs have failed to substantiate those accusations with declarations because “none
of these purported class members are willing to submit a declaration or otherwise come forward.”
Defs.’ Resp. at 2. Employees’ reticence to provide declarations does not undermine a retaliation
claim. If anything, it supports it. Defendants also do not submit persuasive evidence contradicting
Plaintiffs’ claims. Their response includes one declaration which simply denies the allegations
outlined in Wier’s declaration. See id. at 7 (“Perez also expressly denies Plaintiffs’ broader
accusations and maintains that he has not told any driver that the lawsuit would have
“consequences”). Though Defendants allude to other steps they have taken to prevent retaliation,
such as providing Perez “with ‘clear instructions’ regarding communications with drivers and
applicants in light of the litigation,” they do not include evidence of those precautionary measures.
Id. at 3. Similarly, Defendants do not articulate an alternative basis for refusing to rehire Wier.
They admit that Wier reapplied to TransWood in January of 2025 and that he was not given the
position. Id. As to why that rejection was not retaliatory, Defendants merely refute everything
Wier alleges. “Perez did not make any retaliatory threats or condition employment on withdrawal
from this lawsuit.” Id. at 7. “Perez states unequivocally that he did not tell Mr. Wier–or any other
Transwood drivers–that employment or reemployment was conditioned on dropping out of this
lawsuit or withdrawing wage claims.” Id.
None of this is “a legitimate non-retaliatory reason for the adverse employment action.”
Case 1:24-cv-00672-SMD-GBW Document 92 Filed 05/08/26 Page 6 of 10

7
Pacheco, 365 F.3d at 1206. Defendants instead do the inverse of what McDonnell Douglas
demands—they focus on establishing that Perez did not possess a retaliatory motive. But a
retaliatory motive is not fatal to an employer’s defense. To the contrary, the employer “need not
prove the absence of retaliatory motive; rather, the employer need only produce evidence that
would dispel the inference of retaliation. Pacheco, 365 F.3d at 1206–07. Defendants have failed
to do so here.
Still, the Court agrees that Wier’s declaration is vague; it does not specify the date of his
conversation with Perez, mention any direct quotes, or explain what has taken place since January
2025. Wier Decl. at 1. Defendants highlighted these missing details in their response, but Wier’s
second declaration was no more informative than the first. See Defs.’ Resp. at 7; Second Wier
Decl. at 1. Wier’s and Perez’s declarations amount to one person’s account versus another’s, with
no additional evidence to discern which is the more accurate story. On that record alone, Plaintiffs’
motion would be a much closer call. N.M. Dep’t of Game & Fish, 854 F.3d at 1253–54.
But Martinez’s declaration tips the scales in Plaintiffs’ favor. For one, it contradicts
Defendants’ averment that there is no urgency in securing relief. Defs.’ Resp. at 1. Martinez
claims that Perez is refusing to rehire drivers who were participating in the suit. Martinez Decl. at
1. This allegation gives the Court great pause. It indicates that there may be active retaliation
occurring shortly after employees received class notice. Martinez’s declaration also corroborates
Wier’s assertion that Perez is refusing to hire drivers who join the suit. The Court finds that
Plaintiffs have established a sufficient likelihood of success on the merits to enjoin Defendants
from the alleged misconduct for 14 days.
II. Whether Plaintiffs Are Likely to Suffer Irreparable Harm Absent a Preliminary
Injunction.
“What makes an injury ‘irreparable’ is the inadequacy of, and the difficulty of calculating,
Case 1:24-cv-00672-SMD-GBW Document 92 Filed 05/08/26 Page 7 of 10

8
a monetary remedy after a full trial.” Free the Nipple-Fort Collins v. City of Fort Collins, 916 F.3d
792, 806 (10th Cir. 2019). Plaintiffs’ potential harm cannot be remedied through monetary
damages. If Defendants intimidate employees into withdrawing from this suit, they will forego
the opportunity to assert their state and federal rights. Excluding themselves will in turn harm
those who do join; Plaintiffs will be impeded from obtaining available evidence from absent class
members and will be less likely to prevail at trial. Scalia v. Unforgettable Coatings, Inc., 455 F.
Supp. 3d 987, 992 (D. Nev. 2020) (“Plaintiff will not be able to adequately investigate the alleged
misconduct and will likely suffer irreparable injury as a result.”). As noted above, Martinez’s
declaration suggests that these injuries may be imminent, especially given that Martinez’s
termination may chill other employees from exercising their rights. The Second Circuit recognized
this risk in Holt v. Continental Group, Inc., 708 F.2d 87 (2d Cir. 1983). “A retaliatory discharge
carries with it the distinct risk that other employees may be deterred from protecting their rights .
. . or from providing testimony for the plaintiff in [his] effort to protect [his] own rights. These
risks may be found to constitute irreparable injury.” Id. at 91. See also Garcia v. Lawn, 805 F.2d
1400, 1405 (9th Cir. 1986) (“[C]ourts will more readily grant [injunctive] relief where allegations
of retaliation are involved, because such conduct is likely to cause irreparable harm to the public
interest in enforcing the law by deterring others from filing charges.” (citation omitted)); cf. Pye
ex rel. N.L.R.B. v. Excel Case Ready, 238 F.3d 69, 75 (1st Cir. 2001) (“Moreover, the fear of
employer retaliation after the firing of union supporters is exactly the ‘irreparable harm’
contemplated by § 10(j).”). Plaintiffs have established a likely risk of irreparable harm.
III. Whether the Balance of Hardships Favors Plaintiffs.
“To be entitled to a preliminary injunction, the movant has the burden of showing that the
threatened injury to the movant outweighs the injury to the other party under the preliminary
Case 1:24-cv-00672-SMD-GBW Document 92 Filed 05/08/26 Page 8 of 10

9
injunction.” Heideman v. S. Salt Lake City, 348 F.3d 1182, 1190 (10th Cir. 2003). In considering
the balance of the hardships, the Court does not scrutinize the more specific of Plaintiffs’
enumerated forms of relief. Plaintiffs ask for Defendants to permit a representative to come on
site and read aloud employees’ rights, for the Court to require Defendants to “post in a conspicuous
location at each work site a hard copy of the attached anti-retaliation statement,” and for
Defendants to turn over complete list of all employees employed by Defendants who have
communicated with Plaintiffs or class members. Pls.’ TRO Mot. at 13. These requests introduce
a conflict between the parties’ interests and should not be granted prior to a hearing. The Court
only analyzes whether restraining Defendants from using retaliatory tactics against employees
saddles them with any hardship. The Court finds it does not.
For Plaintiffs, retaliation threatens their legal rights and livelihood. For Defendants, the
TRO will enjoin them from what the law already prohibits, and what they may already be doing—
permit employees to exercise their statutory rights without suffering an adverse employment
action. Defendants have “no legitimate interest in threatening, intimidating, or otherwise
retaliating against Plaintiffs in direct contravention of their rights under the FLSA.” Scalia, 455
F. Supp. 3d at 992; see also New York ex rel. Schneiderman v. Actavis PLC, 787 F.3d 638, 662 n.38
(2d Cir. 2015) (“Certainly, courts do not consider the harm a party suffers from being prevented
from violating the law.”); Volasco Prods. Co. v. Lloyd A. Fry Roofing Co., 346 F.2d 661, 667 (6th
Cir. 1965) (“If the defendant abides by the law, it cannot be injured by the injunction.”). The
balance of the hardships decidedly favors Plaintiffs. Granting this limited relief will adequately
protect class members’ legal rights for the 14-day period.
IV. Whether Granting the Injunction Will Further the Public Interest.
Lastly, the FLSA and NMMWAs’ anti-retaliation provisions further the public interest.
These remedial statutes are intended to benefit low-wage workers, to protect employees from
Case 1:24-cv-00672-SMD-GBW Document 92 Filed 05/08/26 Page 9 of 10

10
coercive employer tactics, and to offer a path to relief if those rights are violated. Kasten v. Saint-
Gobain Performance Plastics Corp., 563 U.S. 1, 11 (2011) (“The Act seeks to prohibit “labor
conditions detrimental to the maintenance of the minimum standard of living necessary for health,
efficiency, and general well-being of workers.”). Safeguarding Plaintiffs from employer retaliation
not only benefits them and their fellow class members, but the public at large. “For it needs no
argument to show that fear of economic retaliation might often operate to induce aggrieved
employees quietly to accept substandard conditions.” Mitchell v. Robert DeMario Jewelry, Inc.,
361 U.S. 288, 292 (1960).
CONCLUSION
IT IS THEREFORE ORDERED that Plaintiffs’ Motion for a Temporary Restraining
Order (Doc. 88) is GRANTED as to the following request for relief:
(1) Defendants are hereby enjoined from terminating or threatening to terminate,
or retaliating, or discriminating in any way, against current and former
employees of Defendants, based on Defendants’ belief that they participated in
this case.
The relief hereby granted shall be enforceable for 14 days from entry of this order.
IT IS FURTHER ORDERED that the parties shall virtually appear before the Court on
May 18, 2026 at 1:00 pm to be heard on whether a final and appealable preliminary injunction is
appropriate. The Cout will provide information on how to access the hearing in the docket.
________________________________
SARAH M. DAVENPORT
UNITED STATES DISTRICT JUDGE
Case 1:24-cv-00672-SMD-GBW Document 92 Filed 05/08/26 Page 10 of 10