Cavazos v. Foster, 4:92-CV-55.

• Citation: 822 F. Supp. 438
• Decision Date: 21 May 1993
• Docket Number: No. 4:92-CV-55.,4:92-CV-55.
• Parties: Jose CAVAZOS, et al., Plaintiffs, v. William FOSTER, Sr., d/b/a William Foster Company, Defendant.
• Court: U.S. District Court — Western District of Michigan

822 F. Supp. 438

Jose CAVAZOS, et al., Plaintiffs, v. William FOSTER, Sr., d/b/a William Foster Company, Defendant.

No. 4:92-CV-55.

United States District Court, W.D. Michigan, S.D.

May 21, 1993.

Philip R. Riley, Michigan Migrant Legal Assistance Project, Inc., Berrien Springs, MI, for plaintiffs.

Richard M. Van Orden, Richard M. Van Orden, PC, Grand Rapids, MI, John E. Dewane, Butzbaugh & Dewane, St. Joseph, MI, for defendant.

OPINION

QUIST, District Judge.

The named plaintiffs in this class action are forty two (42) migrant farm workers. They have brought this action against defendant William Foster Sr., doing business as the William Foster Company, ("Foster"), an agricultural enterprise that plants over 1000 acres in pickling cucumbers in the states of Michigan and Missouri. Plaintiffs claim that the defendant company pays less than minimum wages, provides substandard housing, and evades Social Security responsibilities with respect to members of the plaintiff class.

Plaintiffs have moved for partial summary judgment. Foster has filed a cross-motion for summary judgment on the issue of whether plaintiffs are "employees" pursuant to the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq., and the Agricultural Worker Protection Act ("AWPA"), 29 U.S.C. § 1801 et seq.

Background Information

Plaintiffs are migrant workers who have worked for Foster as pickle harvesters. Many of the plaintiffs have worked for Foster during the pickle harvest period for several years and have worked for him in both Missouri and Michigan. The work plaintiffs performed included straightening vines, cleaning rows, picking pickles, and sorting, grading, and packing pickles.

In either 1985 or 1986, Foster first required plaintiffs to sign a contract that describes plaintiffs as "independent contractors." The contract provides that for the work of "harvesting of pickles and the maintaining of vines" assigned to them, plaintiffs will be paid according to a schedule that pays a better price for pickles of the most desirable sizes. After Foster began using the contract, he provided the pickle harvesters with 1099 independent contractor forms for the wages earned for pickle picking and W-2 forms for hourly work such as grading, sorting, and packing pickles. Prior to that time, the pickle harvesters were treated as employees and were provided with W-2 forms for all the work they performed for Foster.

Plaintiffs' brief in support of their motion for partial summary judgment provides a chronological description of the pickle production cycle. Their account is supported by references to the deposition testimony of William Foster, Sr., the owner of the defendant company, and William Foster, Jr., its general manager, and Foster has raised no objections to plaintiffs' description of the process. I will briefly summarize the process as described by plaintiffs.

The first step is generally for Foster to contract for the sale of the prospective pickle crop. Foster negotiates price, quantity, size, and delivery and enters into sales contracts with several buyers. Plaintiffs have no input into this contracting process and do not assume any risk of loss under any of the contracts.

The second step is to select and prepare the fields for planting and then to plant the fields. Plaintiffs play no role and have no investment in this process. Foster makes the decisions regarding the land, equipment, and procedures to use. He buys the seed, owns or leases the land and the equipment that is used to plow, disk, drag, fertilize, and plant the fields, and he pays hourly wages to the workers who perform these tasks.

In the 50 to 55 days it takes the vines to produce pickles for harvest, Foster cultivates, irrigates, and applies fertilizers and other chemicals. Again, plaintiffs have no role in this process. Foster decides what steps to take, owns or leases the equipment needed, and pays hourly wages to those who perform these tasks.

Migrant farm workers begin to arrive as the pickle crop reaches maturity. Foster assigns to the head of each family the rows his family is to pick. Once the rows are assigned, the pickers are expected to spend one or more days straightening or lining the vines in their rows to make the vines more productive and easier to pick. This work does not require a capital investment in tools. According to William Foster, Sr., it is generally performed with a long stick. When harvesting begins, Foster has container boxes delivered to the ends of the rows with a forklift. Plaintiffs pick into pails and empty the pails in Foster's boxes. As boxes are filled with pickles, Foster transports them by forklift to a grading station to be sorted and weighed. Foster maintains that plaintiffs are responsible to supply their own buckets. Plaintiffs allege that Foster supplied and did not require plaintiffs to purchase many of the buckets they used.

Foster owns the grading stations and the equipment used to transport the boxes. He employs hourly-wage employees to perform these tasks. At the grading stations, the pickles are sorted into different grades and oversize pickles are eliminated before the pickle harvesters' wages are computed. Hourly wage earners perform the sorting, grading, and packing tasks. Plaintiffs receive wages computed on a graded scale for the pickles they harvest. Foster then completes the process by shipping the pickles to the buyers.

Standard for Summary Judgment

Summary judgment is appropriate if the record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56. The rule requires that the disputed facts be material. Material facts are facts which are defined by substantive law and are necessary to apply the law. A dispute over trivial facts which are not necessary in order to apply the substantive law does not prevent the granting of a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The rule also requires the dispute to be genuine. A dispute is genuine if a reasonable jury could return judgment for the nonmoving party. Id. This standard requires the non-moving party to present more than a scintilla of evidence to defeat the motion. The summary judgment standard mirrors the standard for a directed verdict. The only difference between the two is procedural. Summary judgment is made based on documentary evidence before trial, and directed verdict is made based on evidence submitted at trial. 477 U.S. at 250-51, 106 S.Ct. at 2511. A moving party who does not have the burden of proof at trial may properly support a motion for summary judgment by showing the court that there is no evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 324-25, 106 S.Ct. 2548, 2553-54, 91 L.Ed.2d 265 (1986). If the motion is so supported, the party opposing the motion must then demonstrate that there is a genuine issue of material fact for trial. Id. The Court must draw all inferences in a light most favorable to the non-moving party, but the Court may grant summary judgment when "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Agristor Financial Corp. v. Van Sickle, 967 F.2d 233, 236 (6th Cir.1992) (quoting Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986)).

This case is ripe for a determination on summary judgment because there are no disputed issues of material fact. Foster does not take issue with plaintiffs' description of the pickle growing and harvesting process except to disagree with plaintiffs' assertion that he sometimes lent pails to plaintiffs rather than selling them. Whether the pails were purchased is not material, as I will discuss below. Plaintiffs, for the most part, built their record on undisputed documents and on the testimony of William Foster, Sr., and William Foster, Jr. Although the parties disagree about how the facts are to be characterized, neither has put forward any issue of fact that is in dispute and would preclude summary judgment.

ANALYSIS

Foster argues that the decision of the court in Donovan v. Brandel, 736 F.2d 1114 (6th Cir.1984), requires summary judgment in his favor. Like this case, the Brandel case involved the issue of whether migrant pickle harvesters should be considered "employees" or "independent contractors." In Brandel the court of appeals affirmed the determination of the trial judge that the migrant workers were independent contractors. The appellate court, however, pointedly limited its conclusion to the facts of the case. It emphasized that the issue should be assessed on a case-by-case basis and commented that a "unique and comprehensive factual record" supported the trial court's determination. Id. at 1120. The court also declined to reverse "the contrary result in a similar factual situation in Donovan v. Gillmor, 535 F.Supp. 154 (N.D.Ohio 1982), appeal dismissed, 708 F.2d 723 (6th Cir.1982)" and commented that the Gillmor decision, "rendered upon a motion for summary judgment, was made upon a record strikingly different that sic the thorough and pointed evidence in the Brandel case." Id. at 1120 n. 11.¹

After Brandel was decided, several district courts within the Sixth Circuit have held that migrant workers are employees. See Colunga v. Young, 722 F.Supp. 1479, 1485 (W.D.Mich.1989) (Hillman, J.), aff'd, 914 F.2d 255 (6th Cir.1990) (migrant tree trimmers are employees under FLSA, FICA, and AWPA for purposes of minimum wage, social security, and unfair labor practice claims); Mendez v. Brady, 618 F.Supp. 579, 582 (W.D.Mich.1985) (Hillman, J.) (migrant blueberry pickers are employees under FLSA); Caballero v. Resmer, No. 88-CV-10231, slip op. at 5-7 (E.D.Mich., March 6, 1991) (migrant pickle workers are employees and not independent...