Castillo v. Givens

• Citation: 704 F.2d 181
• Decision Date: 06 May 1983
• Docket Number: No. 81-1520,81-1520
• Parties: 26 Wage & Hour Cas. (BN 184, 97 Lab.Cas. P 34,382 Paulina CASTILLO, et al., Plaintiffs-Appellants, v. Ercell GIVENS, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 181

704 F.2d 181

26 Wage & Hour Cas. (BN 184, 97 Lab.Cas. P 34,382

Paulina CASTILLO, et al., Plaintiffs-Appellants, v. Ercell GIVENS, Defendant-Appellee.

No. 81-1520.

United States Court of Appeals, Fifth Circuit.

May 6, 1983.

Edward J. Tuddenham, Tex. Rural Legal Aid, Inc., Farm Worker Div., Hereford, Tex., for plaintiffs-appellants.

Beate Bloch, Assoc. Sol., Sandra D. Lord, U.S. Dept. of Labor, Washington, D.C., amicus curiae.

Crenshaw, Dupree & Milam, Tom S. Milam, Lubbock, Tex., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before THORNBERRY, JOHNSON and HIGGINBOTHAM, Circuit Judges.

JOHNSON, Circuit Judge:

Plaintiffs, thirty-nine Mexican and Mexican-American migrant farm laborers who chopped cotton in defendant's fields during the summers of 1977 and 1978, brought this action under section 216(b) of the Fair Labor Standards Act (FLSA) for unpaid minimum wages and liquidated damages and under section 2050a of the Farm Labor Contractor Registration Act (FLCRA) for liquidated damages. The district court entered judgment for defendant on both claims, based on the jury's answers to nine special issues. Plaintiffs appeal from the court's denial of their motions for judgment n.o.v. and alternatively for a new trial. With regard to the FLSA claim, this Court reverses and remands for a new trial on the number of hours worked by the individual plaintiffs and for a finding by the Court as to an award of liquidated damages. ¹ With regard to the FLCRA claim, this Court reverses and remands for a determination of the number of violations committed and the award of liquidated damages in an amount of up to $500 per violation.

I. Facts

Defendant Ercell Givens, President of the First State Bank of Abernathy for twenty-six years, owned a farm of approximately 4000 acres, of which about 1800 acres in 1977 and 2000 acres in 1978 were devoted to cotton production. Defendant employed five fulltime "hands" to run his farm as well as seasonal temporary hands to perform jobs such as operating tractors and feeding cattle. Defendant himself made the decisions of when and where to prepare the fields, when to plough, when to plant, when to cultivate, and when to harvest. In order to produce a good cotton crop, cotton should be chopped in the summertime ²--the job simply involves chopping or hoeing the weeds out of the rows of growing cotton. It is a menial, unskilled task which requires no aptitude, no training, and no ability to reason. It is a work of drudgery which can be performed by persons ranging from very young to quite old; it is accomplished with a simple instrument--the hoe. Defendant employed Manuel Tonche to furnish him with a crew of field workers and to chop his cotton. ³ Defendant knew that Tonche was registered with the Department of Labor (DOL) as a farm labor contractor, and defendant required Tonche to show him his identification card from the DOL at the beginning of each season. Tonche, an illiterate with only a second-grade education who "junked" cars (cut up the bodies and sold the metal as scrap iron) in the winter, worked only for the defendant. In search of field work, the workers contacted Tonche. Tonche provided transportation to the fields for most of the workers in his used school bus, but some came in their own vans or pickups. Tonche's son brought the hoes to the fields in his pickup.

Tonche provided defendant with workers to chop his cotton for four years ending in 1978. ⁴ The crew varied in size, ranging from around thirty or forty up to fifty persons on any one day. In addition to Tonche's crew, defendant also hired the wives, children, and friends of his fulltime hands to chop cotton. Although defendant always paid his bank employees minimum wage, he paid his cotton choppers, including Tonche, $1.65 an hour in 1977 and $1.75 an hour in 1978. The minimum wage was $2.20 an hour in 1977 and $2.65 an hour in 1978. Although defendant was aware of the minimum wage law and the amount of the minimum wage in 1977 and 1978, he stated that he did not realize that the law required him to pay minimum wage to his farm workers as well as to his bank employees.

On each Friday, defendant would give Tonche a check based on the number of hands and the number of hours Tonche reported to him had been worked. Tonche would then mete out the wages to the individual workers in cash. Tonche kept track of the number of hands and the number of hours worked on a daily basis and brought these figures to defendant on a piece of a paper sack. ⁵ Defendant would then copy Tonche's figures into his own record book. Significantly, defendant did not keep any further records other than his cancelled paychecks to Tonche. In particular, defendant did not keep any records of the individual plaintiffs' names, their hours of work, or their wages.

Both the exigencies of running a farm and his serving as bank president prevented defendant from physically supervising the work of his farm employees at all times. Nevertheless, defendant went to the fields three or four times a week to make sure the workers were in the right fields (his fields), to check up on the number of hands working, and to make sure how his entire farming operation was progressing. It was defendant who made the decision on when to start chopping in the season, on which fields to chop, and in what order the fields were to be chopped. Moreover, defendant directed Tonche which weeds were to be chopped and which weeds were not to be chopped; defendant determined when a job was finished.

In September 1978, the DOL investigated defendant's farming operation and determined that defendant owed back FLSA minimum wages to nine members of Tonche's crew who chopped cotton in defendant's fields in 1977 and 1978; defendant paid those nine workers. The DOL also investigated defendant for violations of the FLCRA; defendant was advised by letter in March 1979 that the DOL was not contemplating any further action on the violations indicated. In addition to Tonche, the plaintiffs who filed the instant action on February 14, 1980, ⁶ were members of Tonche's crew who did not receive back minimum wages. ⁷

The case was tried to a jury. At the close of all the evidence, plaintiffs moved for a directed verdict on all issues except the calculation of the number of hours of work performed by plaintiffs. The jury found against plaintiffs on each of nine special issues submitted to it. ⁸ On June 19, 1981, the court entered judgment for defendant on both claims. Plaintiffs moved for judgment n.o.v. with respect to all issues and alternatively for a new trial with regard to the hours they worked. In an order of October 7, 1981, the court denied both the motion for judgment n.o.v. and the motion for a new trial. With respect to the FLSA claim, the court concluded that the jury's finding that plaintiffs were not engaged in the production of goods for commerce was not supported by the evidence. The court stated, however, that the jury could have reasonably found that defendant was not plaintiffs' employer. With respect to the FLCRA claim, the court held that the jury's finding that plaintiffs were not migrant laborers was not supported by the evidence. Nevertheless, the court stated that the jury could have reasonably found that Tonche was not a farm labor contractor. Plaintiffs appeal from this order.

II. FLSA Claim

The issues this Court must address concerning the FLSA claim relate to the status of plaintiffs vis-a-vis defendant, the willfulness of any violation of section 16(b), and the number of hours plaintiffs worked.

A. Plaintiffs' Status

1. A Question of Law

This Court has repeatedly held that the ultimate conclusion that an individual is an "employee" within the meaning of the FLSA is a legal determination rather than a factual one. ⁹ Most recently, in Robicheaux v. Radcliff Material, Inc., 697 F.2d 662 at 666 (5th Cir.1983), this Court dealt directly with the standard of review for the determination of employee status:

We review the district court's determination [that the plaintiff welders are employees within the meaning of the FLSA] as being one of mixed law and fact. (citation omitted). As to the trial court's underlying factual findings and factual inferences deduced therefrom, we are bound by the clearly erroneous standard of Rule 52(a) of the Federal Rules of Civil Procedure. Id. However, as to the legal conclusion reached by the district court based upon this factual data, i.e., here that these welders are employees rather than independent contractors, we may review this as an issue of law.

Prior to Robicheaux, this Court had occasion to address the standard of review for the "employee" status determination in Donovan v. American Airlines, Inc., 686 F.2d 267 (5th Cir.1982). There, this Court stated:

The standard of review of the district court's decision is that of a legal, and not a factual, determination. Thus, although we are bound by the clearly erroneous standard in reviewing the individual findings of fact leading to the district court's conclusions, we review the determination that the students here were not employees as we review any determination of law.

(citations omitted). The American Airlines holding is in accord with this Court's opinion in Donovan v. Tehco, 642 F.2d 141, 143 n. 4 (5th Cir.1981) where we stated:

In reviewing the district court's ultimate findings that the workers at issue were independent contractors, we are not constrained by the "clearly erroneous" standard. Rather, these ultimate findings are treated as legal determinations.

Donovan v. Tehco, Inc., 642 F.2d 141, 143 n. 4 (5th Cir.1981). Prior to the Tehco decision, this Court in Weisel v. Singapore Joint Venture, Inc., 602 F.2d 1185, 1189 n. 11 (5th Cir.1979), had stated:

In reviewing the Trial Court's ultimate finding that Weisel was not an employee, we are not constrained by the "clearly erroneous" test....