Elizondo v. Podgorniak

• Decision Date: 30 August 1999
• Docket Number: No. 98-10235.,98-10235.
• Citation: 70 F.Supp.2d 758
• Parties: Felipe ELIZONDO, Olivia Elizondo, Angel Elizondo, Marlen Elizondo, Nancy Elizondo, Karina Elizondo, Sarai Elizondo, Veronica Nino and Juan Nieto, Plaintiffs, v. Floyd Joseph PODGORNIAK and Ronald John Podgorniak, individually and d/b/a Podgorniak Farms, Defendants.
• Court: U.S. District Court — Eastern District of Michigan

70 F.Supp.2d 758

Felipe ELIZONDO, Olivia Elizondo, Angel Elizondo, Marlen Elizondo, Nancy Elizondo, Karina Elizondo, Sarai Elizondo, Veronica Nino and Juan Nieto, Plaintiffs, v. Floyd Joseph PODGORNIAK and Ronald John Podgorniak, individually and d/b/a Podgorniak Farms, Defendants.

No. 98-10235.

United States District Court, E.D. Michigan, Northern Division.

August 30, 1999.

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Morley Witus, Barris, Sott, Detroit, MI, Thomas K. Thornburg, Farmworkers Legal Services, Berrien Springs, MI, Bonita P. Tenneriello, Legal Services of Southeastern Michigan, Ann Arbor, MI, for Plaintiffs.

Robert D. Mannor, Shinners & Cook, Saginaw, MI, Defendants.

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT AND GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

ROBERTS, District Judge.

I. Introduction

On July 31, 1998, Plaintiffs Felipe Elizondo, Olivia Elizondo, Angel Elizondo, Marlen Elizondo, Nancy Elizondo, Karina Elizondo, Sarai Elizondo, Veronica Nino and Juan Nieto filed their Complaint against Defendants Floyd Podgorniak and his brother Ronald Podgorniak, co-owners of Podgorniak Farms, alleging violations of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201, et seq., and the Migrant and Seasonal Agricultural Workers Protections Act (MSAWPA), 29 U.S.C. § 1801, et seq. Plaintiffs are migrant farm workers from Texas who harvested "pickles"¹ on Defendants' Michigan farm during the 1996 and 1997 seasons.

In accordance with the Scheduling Order, Plaintiffs filed a Motion for Partial Summary Judgment and Defendant filed a Motion for Summary Judgment on June 30, 1999. The threshold issue in each motion is whether Plaintiffs were "employed" by Defendants as defined by FLSA and MSAWPA. Relying upon a Sixth Circuit case, Donovan v. Brandel, 736 F.2d 1114 (6th Cir.1984), Defendants attempted to create an independent contractor/sharecropper arrangement with Plaintiffs and other workers. Plaintiffs argue that the Brandel court limited its holding to the unique circumstances of that case, that their case is distinguishable, and that ample other authority demonstrates a trend toward finding migrant workers under similar fact patterns to be employees for the purposes of FLSA and MSAWPA. The Court agrees with Plaintiffs and thus will grant their Motion for Partial Summary Judgment with respect to the issue of whether they were Defendants' employees and deny Defendants' Motion for Summary Judgment on this threshold issue. Other, secondary rulings will follow.

II. Background

Defendants grew various crops, including pickles, on 433 acres of land that they owned or leased. (Plt's Exh. 6). After learning of Defendants' operation from a stranger at a Meijer store, Plaintiffs in 1996 became among the many migrant laborers who arrive each year to harvest pickles at Defendants' farm. The harvesting took place near the completion of a process that concluded with the selling of the pickles to Matthews Pickle Farm.

The process began in February of each year, when Floyd met with Dan Matthews of Matthews Pickle Farm. At that meeting, Matthews would set the price he would pay for pickles each year. Floyd had been selling pickles to Matthews for 20 years. Confident that he would not find a better price, Floyd did not shop around. (FPI at 8 & FPII at 56-59).²

Next, Defendants decided whether to plant pickles and when to plant. The "very critical" decision of when to plant was made after careful study of weather and soil conditions. After determining that the time was right, Defendants planted the seed and applied herbicide, taking cautions not to make costly mistakes. Plants appear from the ground about five days after the seeds are planted. When the pickles reached the two leaf stage, Defendants began cultivating them. Using a tool on the back of a tractor, Defendants first very slowly cleaned the dirt between the rows of pickles. The second cultivation entailed throwing dirt under the plants to make them stand up and the final cultivation involved fluffing them up. During the cultivation, Defendants assured that the cultivator was not set up improperly; a poor set up could result in pickles being torn out of the ground. The final cultivation took place about three weeks before harvesting began. (FPI at 45-54, 58, & 76-79).

Throughout the cultivation process, no harvest workers were involved. (FPI at 58 & 77). They came into the picture between the final cultivation and when the harvesting began.

First, the harvesters were assigned plots of crop. The testimony on how the plots were assigned is somewhat mixed. Floyd testified that the plots were assigned during a two day period on a first come, first serve basis. (FPII at 4-7). However, he also testified that he would reserve the same plots for Caesar Martinez each year, who arrived late in the season. (FPI at 115). Five days later, Floyd changed his testimony, indicating that he would not have reserved plots for anybody, including Martinez. He just held a certain number of rows for Martinez, but not in any specified location. (FPII at 7-8). In contrast to Floyd's testimony, Plaintiff Karina Elizondo testified that, although they were the first to arrive to select their plots in 1996, they were the last to receive a plot assignment. She stated that Floyd told them that they would have to wait until the workers with more tenure were assigned their plots. (KE at 14). Likewise, Felipe testified that Floyd assigned Plaintiffs the last rows that were left. (FE at 28 & 58).

After the plots were assigned, the harvesters were required to sign two contracts — a Crop Sales Agreement and a Commercial Haulers' Agreement. The Crop Sales Agreement purported to sell the crop to the harvesters in exchange for 20% of the crop.³ (Plt's Exh. 1 at 1). By entering into the Commercial Haulers' Agreement, the "Owner" of the crop of pickles, i.e. the harvesters, hired the "Haulers," i.e., Defendants, to haul the pickles to a manufacturer "indicated by the Owner." (Plt's Exh. 1A at 1-2). In exchange for their hauling service, Defendants received another 30% of the amount received from the sale of the pickles. (Plt's Exh. 1A at 1). The net effect of the Crop Sales Agreement and the Commercial Haulers Agreement was that proceeds from the sale of the pickles to Matthews was split fifty-fifty between the harvesters and Defendants.

After the contracts were signed by the harvesters, the hoeing began.⁴ (FPI at 80-81). Hoeing involves weeding, spacing and, sometimes, lining up the plants. (FPII at 11-12 & 25). Despite the fact that the Crop Sales Agreement ostensibly deemed the harvesters to be owners of the plants, Defendants paid the harvesters by the row to hoe. (FPII at 19 & Admission No. 15). Floyd was unable to explain this inconsistency, offering only that "[i]t's been a practice for years and years, and that's just the way we do business." (FPII at 19). The price per row ran from $4 to $8, depending upon the length of the row. This price was negotiated so as to assure that the workers "got a good wage...." (FPII at 27-28).

Next, the harvesting began. To harvest, the workers would monitor their rows and start picking when the fruit is the right size.⁵ The pickles that were the desirable size were picked carefully so as to avoid damaging those that were not ready for picking. Each harvest yielded about eight or nine pickings. (FPII at 29-30). The picked pickles were placed into pails and then boxes owned by Defendants. The boxes were emptied into bags owned by Matthews. (FPII at 46-47).

Floyd described harvesting as a "very skilled trade," yet also testified that he provided no training, that he does not reject migrants who have no experience and that a minor could learn how to pick. If a worker had no experience, Floyd testified that he would introduce them to tenants with experience so that they could explain the process. (FPII at 30-33). Affiants Tammy Brown and Lori Davila concurred that skill is required for proper harvesting. Experience is required to properly care for the vines and yield a good, profitable harvest. (TB Aff. at ¶ 12 & LD Aff. at ¶¶ 13-14).

In contrast to Floyd's testimony, Plaintiff Veronica Nino testified that, when the pickles were ready for picking in 1996, Floyd told Plaintiffs what to do at a meeting that lasted less than an hour. "[W]hen the pickles were already in the size that we could pick them, he went to the camp and told us that pickles are ready, we want them small, and the smaller ones are paid better. That's what he told me." No one ever showed them how to handle the pickles, but "it was easy." For example, they knew when to separate the vines because, otherwise, they would end up stepping on them. Veronica stated, "We weren't that dumb." (VN at 9-11 & 71).

Similarly, Ronald testified that pickle picking required no special background or special education. All that was necessary was to be a hard worker and "to be able to bend over and pick, I guess." (RN at 92-93).

During the harvesting season, Floyd had a day job at Northern Tube as a purchasing manager. He would, however, arrive at the farm at 5:00 p.m. to monitor and haul bags. He monitored for the size of the pickles (the smaller the better) and to see whether the harvest was on schedule. If Floyd observed pickles that were getting too large, he would "suggest" to the harvesters that they might need more help and discuss their plans on getting back on schedule. Even if there was no apparent problem, Floyd would give the harvesters feedback on how they could improve. For example, he would encourage the harvesters to pick a little smaller in dry weather and a little larger in wet weather. (FPII at 39-41). Nonetheless, Defendants did not supervise the harvesters day to day activity. (OE at 48-51, AE at 13, TB Aff. at ¶ 15-18, LD Aff. at ¶ 16-18).

Also in the afternoon, Defendants...