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Equal Employment Opportunity Commission v. Global Horizons, Inc.

United States District Court, E.D. Washington

May 28, 2014

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
v.
GLOBAL HORIZONS, INC., d/b/a Global Horizons Manpower, Inc.; GREEN ACRE FARMS, INC.; VALLEY FRUIT ORCHARDS, LLC; and DOES 1-10 inclusive, Defendants

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For Equal Employment Opportunity Commission, Plaintiff: Anna Y Park, Sue Noh, LEAD ATTORNEYS, Derek W Li, Elizabeth Esparza-Cervantes, Lorena Garcia-Bautista, U.S. Equal Employment Opportunity Commission, Los Angeles, CA; Connie K Liem, U S Equal Employment Opportunity Commission, San Diego, CA; Damien Lee, Equal Employment Opportunity Commission - SEA, Seattle District Office, Seattle, WA; Rumduol Vuong, U S Equal Employment Opportunity Commission, Fresno, CA.

For Global Horizons Inc, doing business as Global Horizons Manpower, Inc., Defendant: Javier Lopez-Perez, LEAD ATTORNEY, PRO HAC VICE, Law Office of Javier Lopez, Los Angeles, CA; Joshua David Dabling, Dabling Law Firm PLLC, Shoreline, WA.

For Green Acre Farms Inc, Valley Fruit Orchards, LLC, Defendants, Counter Claimants: Christopher J DeGroff, LEAD ATTORNEY, PRO HAC VICE, Seyfarth Shaw LLP, Chicago, IL; Beth Golub Joffe, Justo G Gonzalez, Olivia E Gonzalez, Stokes Lawrence PS, Seattle, WA; Brendan Victor Monahan, Sean A Russel, Stokes Lawrence Velikanje Moore & Shore, Yakima, WA; Gerald L Maatman, Jr, PRO HAC VICE, Seyfarth Shaw LLP, Chicago, IL; Laura Jean Maechtlen, PRO HAC VICE, Seyfarth Shaw LLP, San Francisco, CA; Robb D McFadden, PRO HAC VICE, Perkins Coie, San Francisco, CA.

For Equal Employment Opportunity Commission, Counter Defendant: Anna Y Park, Sue Noh, LEAD ATTORNEYS, Lorena Garcia-Bautista, U.S. Equal Employment Opportunity Commission, Los Angeles, CA; Damien Lee, Equal Employment Opportunity Commission - SEA, Seattle District Office, Seattle, WA.

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ORDER GRANTING IN PART, DENYING IN PART, AND DENYING AS MOOT IN PART THE GROWER DEFENDANTS' SUMMARY-JUDGMENT MOTION; GRANTING IN PART AND DENYING AS MOOT IN PART THE EEOC'S AMENDED MOTION FOR PARTIAL SUMMARY JUDGMENT; AND STRIKING TRIAL AT THIS TIME

EDWARD F. SHEA, Senior United States District Judge.

A hearing occurred in the above-captioned matter on May 14, 2014. EEOC was represented by Sue Noh, Derek Li, Damien Lee, and Jamal Whitehead. Green Acre Farms, Inc. and Valley Fruit Orchards, LLC (collectively, the " Grower Defendants" ) were represented by Beth Joffe, Brendan Monahan, and Olivia Gonzales. Before the Court were two summary judgment motions: 1) Grower Defendants' Motion for Summary Judgment, ECF No. 408, and 2) EEOC's Amended Motion for Partial Summary Judgment on the Grower Defendants' First Affirmative Defense (Conditions Precedent), ECF No. 517. The Grower Defendants' motion is broader, seeking a ruling on three different matters: 1) each individual Grower Defendant is not a joint employer with Global, 2) there is no evidence presented by the EEOC to establish a triable issue of fact to survive summary judgment on its Title VII claims against the Grower Defendants, and 3) the EEOC failed to satisfy its pre-lawsuit Title VII requirements. The EEOC's motion is focused on the last issue: seeking summary judgment on the Grower Defendants' first affirmative defense, which submits the EEOC failed to satisfy its statutory pre-lawsuit requirements.

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After reviewing the record and relevant authority and listening to counsels' arguments, the Court grants in part, denies in part, and denies as moot in part the Grower Defendants' motion, ECF No. 408, and grants in part and denies as moot in part the EEOC's motion, ECF No. 517. The Court's reasoning follows.

A. Factual Statement[1]

Green Acre Farms, Inc. (" Green Acre" ) and Valley Fruit Orchards, LLC (" Valley Fruit" ) are both located in Eastern Washington and grow a variety of crops, including apples, pears, and peaches. Starting in approximately 2003, Green Acre and Valley Fruit each experienced significant labor shortages. In late 2003, in response to the labor shortages, Jim Morford, the owner of Green Acre, and John Verbrugge, the owner of Valley Fruit, met with Mordechai Orian, the Chief Executive Officer of Defendant Global Horizons, Inc. (" Global" ), to discuss having Global, a labor contractor, supply workers to the Grower Defendants' orchards. Each of the Grower Defendants independently contracted with Global for Global to provide temporary guest workers for their respective operations in 2004 and 2005.

Through a federal H-2A guest worker program, Global provided the Grower Defendants with workers from Thailand. Pursuant to the Farm Labor Contractor Agreements entered into with the Grower Defendants, Global was responsible for housing, providing transportation, and paying the Thai guest workers. Each Grower Defendant provided work for the Thai guest workers as permitted by the crop season and weather.

Global's primary orchard supervisor in Washington in 2004 was Bruce Schwartz, and in 2005, Mr. Schwartz returned to Washington periodically to observe the Thai guest workers. Id. In 2005, Charlie Blevins was Global's primary orchard supervisor for the Thai guest workers in Washington. Id. In addition to Mr. Blevins and Mr. Schwartz, Global employed orchard supervisors in Washington named Pranee Tubchumpol, Larry Collins, Sam Wongsesanit, Prinya Sangkarat, Joseph Knoller, and Jose Cuevas.

Global's supervisors met each day with representatives of Green Acre and Valley Fruit to determine the nature of work that needed to be performed at each orchard. Grower Defendants' owners and/or management would demonstrate for the Thai guest workers as to how a particular orchard task would be accomplished. Global staff served as interpreters, as the Thai workers did not speak or understand English and the Grower Defendants' owners and managers did not speak or understand Thai. Task instructions were often different for each orchard as the approaches to pruning, thinning, tying, and even harvest depended on a variety of factors such as the age, size, and health of the trees. Consistent with industry practices, work crews were instructed to " color pick" at

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times and to pay attention to fruit size.[2] Additional factors such as weather, variety, and market conditions also affected the independent approaches taken by the Grower Defendants in their respective orchards.

During 2004 and 2005, Global staff and management threatened in Thai to send the Thai workers back to Thailand or transfer them to other farms making less money, if they did not work hard enough, complained, failed to obey, or missed the daily headcount.

The EEOC received hundreds of charges of discrimination filed by Thai guest workers who had worked for Global and farms throughout the continental United States and in Hawaii. Seventy-two Thai individuals filed Charges of Discrimination against Green Acre; twenty-eight Thai individuals filed Charges of Discrimination against Valley Fruit.

In 2011, the EEOC brought suit on behalf of Thai guest workers who worked at the Grower Defendants' orchards and filed an administrative claim (" Thai Claimants" ).[3] The EEOC pursues Title VII claims against Global and the Grower Defendants, as joint employers, including claims of hostile work environment, constructive discharge, and retaliation (only as to Green Acre), on behalf of these Thai Claimants.

B. Summary Judgment Standard

Summary judgment is appropriate if the record establishes " 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). The party opposing summary judgment must point to specific facts establishing a genuine dispute of material fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). If the non-moving party fails to make such a showing for any of the elements essential to its claim for which it bears the burden of proof, the trial court should grant the summary judgment motion. Celotex Corp., 477 U.S. at 322.

C. Analysis and Authority

The Grower Defendants seek dismissal of the Title VII claims against them because 1) the EEOC cannot establish a genuine dispute of material fact that the Grower Defendants were the Thai Claimants' employers as required by Title VII, 2) the EEOC cannot establish a genuine dispute of material fact that the Grower Defendants mistreated or discriminated against any Thai Claimant on the basis of race or national origin or retaliated against any Thai Claimant because of the exercise of a right protected under Title VII, and 3) the EEOC failed to satisfy its Title VII investigation and conciliation requirements before filing the lawsuit. The EEOC opposes

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the motion in its entirety, and also seeks a ruling in its favor on the last issue through its own summary-judgment motion.

1. Title VII Employer Status

The Grower Defendants argue there is no evidence to support a finding that the Grower Defendants were the Thai Claimants' employers, rather the evidence shows that Global remained the Thai Claimants' sole employer even on the orchards, consistent with the parties' Farm Labor Contractor Agreements.[4] The EEOC disagrees, contending the evidence establishes a triable issue of fact as to whether the Grower Defendants employed the Thai Claimants given that the Grower Defendants' owners and/or managers dictated where in the orchards the Claimants would work and what tasks they would complete, and that Mr. Morford, the owner of Green Acre, and Mr. Verbrugge, the owner of Valley Fruit, both recognized that if they were unhappy with a Thai Claimant's work quality that they could tell Global that the Thai Claimant would no longer work at their orchard.

Title VII serves to achieve equality in employment opportunities. Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). Accordingly, a defendant must be deemed to be an employer of the claimed aggrieved employee in order for Title VII to apply. Lutcher v. Musicians Union Local 47, 633 F.2d 880, 883 (9th Cir. 1980) (recognizing that the " connection with employment need not necessarily be direct" ).

The test applied to determine whether an entity is an employer for Title VII has been adopted from the employee-versus-independent contractor setting. In that context, the following test is used to determine whether an individual is an employee or an independent contractor for purposes of Title VII: " a court should evaluate 'the hiring party's right to control the manner and means by which the product is accomplished.'" Murray v. Principal Fin. Grp., Inc., 613 F.3d 943, 945-46 (9th Cir. 2010) (quoting Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323, 112 S.Ct. 1344, 117 L.Ed.2d 581 (1992)). Although the right to control the means and manner of the worker's performance is the primary factor to determine whether one is the employer of the worker, the following factors are also analyzed: 1) the skill required; 2) the source of the instrumentalities and tools; 3) the location of the work; 4) the duration of the relationship between the parties; 5) whether the hiring party has the right to assign additional projects to the hired party; 6) the extent of the hired party's discretion over when and how long to work; 7) the method of payment; 8) the hired party's role in hiring and paying assistants; 9) whether the work is part of the regular business of the hiring party; 10) whether the hiring party is in business; 11) the provision of employee benefits; and 12) the tax treatment of the hired party. Id. at 945-46 (quoting Darden, 503 U.S. at 323). Cf. Torres-Lopez v. May, 111 F.3d 633 (9th Cir. 2007) (using an economic reality test to determine that a farm was a joint employer for purposes of the Fair Labor

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Standards Act and Migrant and Seasonal Agricultural Worker Protection Act).

After focusing on these factors and, in particular, the " control" factor, the Court finds a genuine dispute of material fact exists as to whether the Grower Defendants employed the Thai Claimants, in addition to Global, for orchard-related activities. There is sufficient evidence put forward by the EEOC that the Grower Defendants' owners and supervisors controlled the work to be done by the Thai Claimants. As to control, although Global was primarily responsible for monitoring and tracking the Thai Claimants' work, there is evidence that the Grower Defendants' owners and managers provided instruction and direction, through the use of interpreters, to the Thai Claimants as to what tasks to work on, what areas of the orchard to work, and how to perform a task. In addition, even though Global supervisors were primarily responsible for overseeing the Thai Claimants while they were at the orchard, the Grower Defendants monitored the Thai Claimants' work product and advised Global supervisors to address deficient work, such ...


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