Cortes-Diaz v. DL Reforestation, Inc.
| Decision Date | 21 March 2022 |
| Docket Number | 1:20-cv-00666-CL |
| Court | U.S. District Court — District of Oregon |
| Parties | LORENZO CORTES-DIAZ and JOSE MANUEL CORTES-DIAZ, Plaintiffs, v. DL REFORESTATION, Inc., an Oregon business corporation, Defendant. |
Plaintiffs Lorenzo Cortes-Diaz and Jose Manuel Cortes-Diaz bring claims against the Defendant, DL Reforestation, Inc. ("DL"), their former employer. The case comes before the Court on cross-motions for summary judgment, as well as a Motion to Certify a Question to the Oregon Supreme Court, filed by the Plaintiffs. Full consent to magistrate jurisdiction was filed on November 3, 2020 (#20). The Court held a telephonic oral argument hearing on January 11, 2022. For the reasons below, Plaintiffs' Motion to Certify (#79) is DENIED, Plaintiffs' Motion for Partial Summary Judgment (#47) is GRANTED in part and DENIED in part, and Defendant's Motion for Summary Judgment (#45) is GRANTED in part and DENIED in part.
Plaintiffs raise a variety of claims against their former employer, but these cross-motions primarily address the claims challenging Defendant's practice not to compensate Plaintiffs for preliminary work activities, travel time on Sundays, and travel time at the beginning and end of each work-day. The analysis of Plaintiffs' wage claims is complicated by the differences in Oregon state law and the federal Fair Labor Standards Act (FLSA). The main difference between the two is the amendment to the FLSA, called the Portal-to-Portal Act (PTPA). When the Oregon wage and hour laws were codified, the legislature modeled the laws after the PTPA, but did not adopt the PTPA amendments. This distinction in the wage laws requires the defendant to compensate Plaintiffs for their preliminary work activities and their travel time at the beginning and end of each work-day under Oregon law. Moreover, the Defendant is required to compensate Plaintiffs for their travel time on Sundays under both Oregon law and the FLSA, but only to the extent that the travel "cut across" their regular working hours.
Summary judgment shall be granted when the record shows that there is no genuine dispute as to any material of fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The moving party has the initial burden of showing that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc). The court cannot weigh the evidence or determine the truth but may only determine whether there is a genuine issue of fact. Playboy Enters., Inc. v Welles, 279 F.3d 796, 800 (9th Cir. 2002). An issue of fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.
When a properly supported motion for summary judgment is made, the burden shifts to the opposing party to set forth specific facts showing that there is a genuine issue for trial. Id at 250, Conclusory allegations, unsupported by factual material, are insufficient to defeat a motion for summary judgment. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir, 1989). Instead, the opposing party must, by affidavit or as otherwise provided by Rule 56, designate specific facts which show there is a genuine issue for trial. Devereaux, 263 F.3d at 1076. In assessing whether a party has met its burden, the court views the evidence in the light most favorable to the non-moving party. Allen v City of Los Angeles, 66 F.3d 1052, 1056 (9th Cir. 1995).
Defendant DL Reforestation, Inc. is a small, family-owned reforestation services company. Dep. DL Reforestation (Exhibit 1) (Rule 30(b)(6)), Tr. at 16; 11. 23-25 (". ). It is owned by Domingo Lopez and his sons, Armando and Ubaldo Lopez. Id. DL is based in Medford, Oregon. DL performs work in Oregon, California, and Nevada. DL Dep., Tr. at 19, 11. 1-5. It works for various agencies of the federal government and for private landowners. DL Dep., Tr. at 20, 11. 19-25; Id. at 21, 11. 8-13. DL's core activity for these customers is to clear the land of trees (typically pine trees) to achieve environmental and land management objectives. DL Dep., Tr. at 16, 11. 20-25; Id. at 17, 11.1; Id. at 21, 11. 14-24; Dep. Jose Manuel Cortes Diaz, (Exhibit 2) Tr. at 33, 11. 3-6 ("JMCD, Tr. at 33, 11. 3-6"). The work of DL's forestry workers is to cut down pine trees with a chain saw and then pile them up. JMCD, Tr. at 31, 11. 13-15. They do not plant seedlings or perform any other activities related to the cultivation of trees for harvest.
Like many other companies in the reforestation industry, DL has faced chronic labor shortages. DL Dep., Tr. at 17, 11. 10-15. DL therefore turned to the H-2B visa program to meet its need for seasonal labor. The H-2B Program allows U.S. employers to hire foreign nationals to work temporarily in the United States. See 8 U.S.C. § 1101(a)(15)(H)(ii)(b). The H-2B Program is "used primarily by small businesses, including landscaping, hotel, construction, restaurant and forestry businesses." Bayou Lawn & Landscape Servs. v. Oates, 713 F.3d 1080, 1083 (11th Cir. 2013). The No. of H-2B visas that the State Department may issue in any given fiscal year is capped at 66, 000. 8 U.S.C. § 1184(g)(1)(B). This limit is further divided into 33, 000 visas for the first half of the fiscal year and 33, 000 visas for the second half. 8 U.S.C. § 1184(g)(10). When the allocated visas run out, only congressional action can provide more. Plaintiffs Lorenzo and Jose Manuel Cortes-Diaz (herein, "Plaintiffs") are brothers. J. Cortes Decl. ¶ 3; L. Cortes Decl. ¶ 3. Their permanent place of residence is Michoacan, Mexico, where they have lived most of their lives. J. Cortes Dep. 14:11-22, Ex. 3; J. Cortes Decl. ¶ 4; L. Cortes Decl. ¶ 4. Plaintiffs were hired in 2017 and 2018 to work for Defendant DL through the H-2B visa program. J. Cortes Decl. ¶ 5; L. Cortes Decl. ¶ 5. In 2017, Plaintiffs worked for Defendant from September 5, 2017, through December 12, 2017. J. Cortes' 2017 Terms & Conditions, Exs. 8, 8E; L. Cortes' 2017 Terms & Conditions Exs. 9, 9E; Plaintiffs' 2017 Termination of Labor Contract, Ex. 12. In 2018, Plaintiffs worked for Defendant starting on April 4, 2018. J. Cortes' 2018 Terms & Conditions, Exs. 10, 10E; L. Cortes' 2018 Terms & Conditions, Exs, 11, 1 IE. Plaintiff Jose Manuel Cortes-Diaz worked through September 17, 2018. J, Cortes' 2018 Termination of Employment, Exs. 14, 14E. Plaintiff Lorenzo Cortes-Diaz worked through November 30, 2018. L. Cortes' 2018 Termination of Employment, Exs. 13, 13E.
During their employment, Plaintiffs stayed with family members in Medford when they were not away in the forest working for Defendant. J. Cortes Dep, 18:6-17; 21:11-14, Ex. 3; J. Cortes Decl. ¶ 6; L. Cortes Decl. ¶ 6. Defendant arranged to pick up Plaintiffs on Sundays from their Medford residence and transported them to Defendant's headquarters, where Plaintiffs and the other workers loaded up the company vans with the company's chainsaws and other tools that were needed for work that week. Id. From there, Defendant would drive workers to lodging near the worksite.[1] J. Cortes Decl. ¶ 9; L. Cortes Decl. ¶ 9. When traveling between the headquarters and lodging, Defendant would stop at stores and gas stations to purchase groceries, supplies, and gasoline for the chain saws. J, Cortes Decl. ¶10; L. Cortes Decl. ¶ 10. Plaintiffs were often assigned the task of filling up gas cans with gasoline for the chainsaws that were to be used at the various worksites. Id. The total time this process of loading, supply acquisition, and transportation took varied greatly due to the fact that Plaintiffs worked in many locations across Southern Oregon, Northern California, and Western Nevada. J. Cortes Decl. ¶ 11; L. Cortes Decl. ¶11.
During the work week, Plaintiffs were transported by Defendant daily from lodging to and from remote forest worksites in Defendant's vans. Soberano Decl. 35:2-19, Ex. 2; J. Cortes Decl, ¶ 13; L. Cortes Decl. ¶ 13. According to Plaintiffs, their typical workday, not including travel time, began at 5AM and ended at 3PM; a typical workweek was Monday to Friday. J. Cortes' 2017 Terms & Conditions, Exs. 8, 8E; J. Cortes' 2018 Terms & Conditions, Exs. 10, 10E; L. Cortes' 2017 Terms & Conditions, Exs. 9, 9E; L. Cortes' 2018 Terms & Conditions, Exs. 11, 1 IE, The total time traveled also varied greatly, depending on how close the lodging was to the actual worksite. J. Cortes Decl. ¶ 13; L. Cortes Decl. ¶ 13.
Plaintiffs assert and submit declarations to show that Defendant exercised control over the workers during the transportation in the following ways:
The Defendant determined where the reforestation work was to be done, which controlled the ultimate destination of the workers' travel. J. Cortes Decl. ¶ 12; L. Cortes Decl. ¶ 12. Defendant required Plaintiffs to ride in the company vans. J. Cortes Decl. ¶¶ 7, 13; L. Cortes Decl. ¶¶7, 13. It was Defendant's practice to transport all of its employees from their headquarters to the hotel or motel lodging sites, and then during the work week from those lodging sites to the worksites and back. J. Cortes Decl. ¶ 13; L. Cortes Decl. ¶ 13. Defendant also determined the time at which they would pick up Plaintiffs on Sundays. Plaintiffs had to be ready at the time they were told and did not have flexibility to choose a different time. J. Cortes Decl. ¶ 8; L. Cortes Decl. ¶ 8. Defendant decided what grocery store and gas station to visit and dictated which workers would help load the vans or fill up...
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