Malacara v. Garber
| Decision Date | 09 December 2003 |
| Docket Number | No. 03-40144.,03-40144. |
| Citation | 353 F.3d 393 |
| Parties | Ovidio MALACARA, et al., Plaintiffs, Ovidio Malacara; David Rincones, Plaintiffs-Appellants, v. Russell GARBER, doing business as Garber Farms, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Michael Holley (argued), Florida Immigrant Advocacy Ctr., Miami, FL, Douglas Leonard Stevick, Southern Migrant Legal Services, A Project of Texas Rural Legal Aid, Nashville, TN, for Plaintiffs-Appellants.
Stephen A. Watring (argued), Dunlevey Mahan, Dayton, OH, for Defendant-Appellee.
Catherine K. Ruckelshaus, Nat. Emp. Law Project, New York City, for United Farm Workers Union and Comite De Apoyo A Los Trabajadores Agricolas Inc., Amici Curiae.
Appeal from the United States District Court for the Southern District of Texas.
Before JOLLY and WIENER, Circuit Judges, and ROSENTHAL,* District Judge.
This appeal requires this court to examine the family business exemption from the Migrant and Seasonal Agricultural Worker Protection Act ("AWPA"), 29 U.S.C. §§ 1801 et seq. Appellants, two Texas-based migrant farmworkers, alleged that appellee, the owner of a family farm, deliberately discouraged them from accepting employment so he could import workers under a program that requires farmers first to attempt to hire American workers before receiving visas for foreign workers. Appellants alleged that appellee's conduct violated the AWPA and that his misrepresentations of the terms and conditions of employment at his farm constituted fraud under Texas law. The district court granted appellee's motion for summary judgment, dismissing the AWPA claim based on the family business exemption from the statute and dismissing the state law fraud claim based on a failure to raise a fact issue as to injury. We affirm the district court's grant of summary judgment.
Russell Garber and his wife own and operate a farm in Ohio. Beginning in 1999, Garber recruited migrant workers from Brazil, where he also owns a farming operation. Garber applied for visas for these farmworkers under the H-2A program administered by the United States Department of Labor ("DOL"). Under this program, the DOL grants foreign workers temporary work visas, but only if the employer first demonstrates that he has made a good faith, active attempt to recruit American workers but could not find sufficient able, willing, and qualified workers for his needs. 8 U.S.C. § 1188(a)(1)(A). When Garber sought H-2A visas for Brazilian workers in 2001, he submitted a report to the DOL stating that he had unsuccessfully attempted to find American migrant workers by word-of-mouth spread through neighbors and acquaintances; by requesting help from the Farm Bureau, a local farm supply organization, and the Agricultural Extension Service, a statewide agricultural organization; and by filing a job order with the Ohio state employment services agency. Before agreeing to issue the visas, the DOL required Garber to publish job advertisements in Texas, which has traditionally been a source of farmworkers for Ohio, and to use the services of the Texas Workforce Commission ("TWC"). The advertisements told prospective workers interested in work opportunities at Garber's farm to contact the TWC. When prospective workers responded, the TWC relayed to them Garber's terms and conditions of employment. The TWC did not interview prospective applicants or make any job offers. Rather, the TWC served as a clearinghouse, where a prospective employer could post information about available work and prospective applicants could learn about the job opportunities.
Ovidio Malacara and David Rincones, both residents of McAllen, Texas, contacted the TWC after learning about job opportunities on Garber's farm through the Texas advertisements. Garber flew from Ohio to Texas to interview Malacara, Rincones, and several others who had contacted the TWC. Garber conducted the interviews in the TWC office. The TWC provided an interpreter for Malacara and others who spoke no English. Malacara and Rincones alleged that in the interviews, Garber tried to discourage them from taking a job by misrepresenting the terms and conditions of the work. Malacara and Rincones claimed that Garber told them the work would be done in "cold snow" and offered to fly them to Ohio "in a manner that suggested Garber hoped they were afraid of flying." Rincones, who spoke only English, alleged that Garber warned that the inability to speak Spanish could be a problem in the workplace. Despite these alleged efforts at discouragement, Malacara and Rincones both expressed interest in taking the jobs. Garber promised to contact them shortly.
Garber responded that he accurately described the work at his farm during the interviews. Garber claimed that, in response to Rincones's inquiry about the language that would be spoken on the job and in the living quarters, he informed Rincones that he and his son — who spoke English — were "running the show" in the fields. Garber contended that Rincones obviously knew that Garber spoke English and should have assumed that Garber's son did as well. Garber told Rincones that he might be the only English-speaker in the living quarters. Garber asserted that he believed he had hired Rincones and Malacara at the interview; that Rincones had accepted; and that Malacara had not firmly accepted.
Garber telephoned Rincones to arrange his transportation to Ohio. Rincones alleged that during the telephone conversation, Garber emphasized the problem Rincones's inability to speak Spanish could present at the work site, as well as the safety risks of the job. Garber alleged that he answered Rincones's prior question about the language spoken in the living quarters and notes that, during the telephone call, "there was some confusion over whether the statement by Garber about Rincones being the only English-speaking person related to the job or the living quarters." Rincones claimed that this conversation dissuaded him from traveling to Ohio to work for Garber. Rincones told Garber that he had reconsidered and would not be accepting employment with him.
Garber also telephoned Malacara. Malacara claimed that during this conversation, he understood only the words "bus ticket" and never communicated to Garber any lack of interest in coming to Ohio. Garber disputed this version of events, claiming that Malacara said that he had decided not to take the job in Ohio. Malacara asserted that when he did not hear from Garber again or receive a ticket for travel to Ohio, he "ultimately believed that Garber either had not really hired [him] at the interview, or that he had decided to reject [him] after the interview."
Malacara and Rincones sued Garber, alleging violations of the AWPA and the Immigration and Nationalities Act ("INA") and fraud under Texas law. After discovery, Garber moved for summary judgment on all three claims. The district court granted Garber's motion in its entirety. The court found that Garber fell under the family business exemption from the AWPA's requirements, available if a farmer's solicitation, recruitment, or furnishing of farmworkers is performed solely by the farmer or by immediate family members. As to the second cause of action, the court found that the plaintiffs had no private right of action under the INA. As to the fraud claim, the court found that, in response to the summary judgment motion, Rincones had failed to present or point to evidence raising a fact issue as to whether he was damaged, an essential element of the fraud cause of action.
Malacara and Rincones appeal the district court's dismissal of the AWPA claims, and Rincones appeals the district court dismissal of his fraud claim.
This court reviews a district court's grant of summary judgment de novo, applying the same standards as the district court. BGHA, LLC v. City of Universal City, Tex., 340 F.3d 295, 297 (5th Cir. 2003). Summary judgment is appropriate if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (); Worthy v. New Orleans S.S. Ass'n/Intern. Longshoremen's Ass'n, AFL-CIO Pension Plan, 342 F.3d 422, 426 (5th Cir.2003). In deciding a summary judgment motion, a court must review the facts drawing all reasonable inferences in the light most favorable to the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Calbillo v. Cavender Oldsmobile, Inc., 288 F.3d 721, 725 (5th Cir.2002).
The AWPA is designed "to assure necessary protections for migrant and seasonal agricultural workers." 29 U.S.C. § 1801. The AWPA imposes requirements on labor contractors, agricultural employers, and agricultural associations. Farmers must disclose the terms and conditions of employment at the time of recruitment, § 1821(a); must make the disclosures in a language the worker will understand, § 1821(g); may not convey false or misleading information, § 1821(f); and must comply with the parties' work arrangements, § 1832(c). Malacara and Rincones alleged that Garber violated each of these provisions.
Family farmers who meet certain criteria are exempt from the statute. The AWPA provides:
(a) The following persons are not subject to this chapter —
(1) Family business exemption. — Any individual who engages in a farm labor contracting activity on behalf of a farm... which is owned or operated exclusively by such individual or an immediate family member of such individual, if such...
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