Equal Emp't Opportunity Comm'n v. Glob. Horizons, Inc.

• Decision Date: 20 March 2020
• Docket Number: NO: 2:11-CV-3045-RMP,: 2:11-CV-3045-RMP
• Court: U.S. District Court — District of Washington
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. GLOBAL HORIZONS, INC., doing business as Global Horizons Manpower, Inc.; GREEN ACRE FARMS, INC.; VALLEY FRUIT ORCHARDS, LLC; and DOES 1-10, inclusive, Defendants. GREEN ACRES FARMS, INC; and VALLEY FRUIT ORCHARDS, LLC, Counter Claimants, v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Counter Defendant.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. GLOBAL HORIZONS, INC., doing business as Global Horizons Manpower, Inc.;

GREEN ACRE FARMS, INC.; VALLEY FRUIT ORCHARDS, LLC; and DOES 1-10, inclusive, Defendants.

GREEN ACRES FARMS, INC; and VALLEY FRUIT ORCHARDS, LLC, Counter Claimants, v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Counter Defendant.

NO: 2:11-CV-3045-RMP

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON

March 20, 2020

ORDER RESOLVING SUMMARY JUDGMENT MOTIONS

BEFORE THE COURT are the following motions for partial summary judgment: (1) Plaintiff Equal Employment Opportunity Commission's (the "EEOC's")' Motion for Summary Judgment Regarding Defendant Green Acre Farms, Inc.'s ("Green Acre") Joint Employer Liability for Discriminatory Treatment and Hostile Work Environment, ECF No. 715; (2) the EEOC's Motion for Summary Judgment Regarding Defendant Valley Fruit Orchards, LLC's ("Valley Fruit's") Joint Employer Liability for Discriminatory Treatment and Hostile Work Environment, ECF No. 722; (3) the EEOC's Motion for Summary Judgment on the EEOC's Pattern-or-Practice Claims of Disparate Treatment, Hostile Work Environment, and Constructive Discharge, ECF No. 747; and (4) Green Acre and Valley Fruit's (collectively, the "Growers'") Motion for Partial Summary Judgment, ECF No. 710. Also pending before the Court is the Growers' Joint Motion for Summary Judgment on All Claims. ECF No. 774.

Having heard oral argument from the parties on December 16, 2019, and March 5, 2020, reviewed all submissions related to the pending motions as well as the extensive record, and studied the relevant law, the Court is fully informed.

FACTUAL BACKGROUND

The following facts are undisputed unless otherwise noted.¹

Defendant Green Acre is a Washington corporation, owned and operated by the Morford family, that grows hops, wheat, dill, mint, nectarines, pears, peaches, and apples.

Valley Fruit is a Washington Liability Company that was owned and operated by the Verbrugge family during 2004 and 2005, and grew cherries, apples, pears, and peaches. ECF No. 777 at 2. Valley Fruit sold its assets and ceased operations in 2018. Id.

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/ / / Growers' Relationship with Labor Services Contractor Global Horizons, Inc.

Global Horizons, Inc. ("Global") provided farm labor services and assigned H-2A guest workers to the Growers' farms in Washington from approximately summer 2004 until October 2005, for Green Acre, and November 2005, for Valley Fruit. ECF Nos. 776 at 7; 777 at 3. Jim Morford, owner and officer of Green Acre in 2004 and 2005, was "responsible for" Green Acre's interactions with Global. ECF Nos. 776 at 2; 756-8 at 3. John Verbrugge, owner and officer of Valley Fruit, was Valley Fruit's point of contact with Global. ECF No. 777 at 2.

Morford and Verbrugge recount that their respective farms contracted with Global to address labor shortages that began in 2003. ECF Nos. 776 at 2; 777 at 2. EEOC contests that there were labor shortages at that time, ECF No. 794 at 5; however, the Court notes that the EEOC stipulated to the existence of labor shortages beginning in 2003, in the parties' 2014 Joint Statement of Uncontroverted Facts. ECF No. 528 at 3.

Nevertheless, Global first provided temporary orchard labor services to the Growers in approximately summer 2004. See ECF No. 775 at 3 (citing ECF No. 778-1); 795 at 6. Global was not a licensed farm contractor between January and October 2004. See ECF No. 718-13 at 24.

In November 2004, Green Acre signed a Letter of Intent memorializing that it was contracting with Global to provide "up to 190 workers for pruning andharvesting fruit on Green Acre Farms from January 10, 2005 to November 10, 2005." ECF No. 776 at 2, 11. The Letter of Intent recited: "The workers will be recruited, transported, housed, paid and supervised by [Global]." Id. at 11.

Valley Fruit entered a "Farm Labor Contractor H-2A Agreement" ("Valley Fruit Agreement") with Global in January 2005. ECF No. 777 at 17. The Valley Fruit Agreement provided for pruning, training, harvest, thinning, and tree planting from January 1, 2005, through November 1, 2005. Id. The Valley Fruit Agreement provided that all workers who performed work under the Agreement would be employees of Global and would at all times be subject to the sole and direct supervision of Global. Id. at 18.

The Growers terminated their relationships with Global in October 2005 (Green Acre) and November 2005 (Valley Fruit), when their contracts with Global expired. ECF Nos. 776 at 7; 777 at 9.

H-2A Workers from Thailand

Global was required to hire both foreign and domestic workers in order to comply with the requirements of the federal H-2A guest worker program. ECF Nos. 775 at 6; 795 at 16. Global's primary orchard managers in 2005, Charlie Blevins and Bruce Schwartz, testified that they observed that Global's domestic H-2A workers were primarily of Hispanic and/or Mexican descent, but Global did not track its employees by race or national origin. ECF Nos. 778-4 at 3; 778-7 at 3-4.Blevins and Schwartz aver that all of the workers hired by Global pursuant to their contracts with the Growers were hired to perform the same work. Id.

Mordechai "Morti" Orian was Global's Chief Executive Officer in 2004 and 2005. See ECF No. 724-1 at 9-10. Jose Cuevas was hired as an orchard supervisor by Global in January 2004. ECF No. 801-10 at 5. In a 2013 deposition upon which EEOC heavily relies for arguing discriminatory intent, Cuevas recalled conversations that he was a part of, or observed, between Orian and the owners of Valley Fruit and Green Acre before Global brought the workers to the Growers' farms. Id. at 8. Cuevas' 2013 deposition was conducted through an interpreter, although the excerpt of the deposition in the record does not indicate the interpreter's name, whether the interpreter was certified, or that the interpreter certified the accuracy of the interpretation. Id. at 2-28. Furthermore, the transcript indicates that during the deposition Growers' counsel requested that EEOC counsel not interrupt Cuevas' responses to slow down Cuevas' responses to allow the interpreter to catch up, but instead allow the interpreter to control the interruptions. Id. at 10.

EEOC relies almost exclusively on Cuevas' deposition testimony to support its prima facie case of discrimination, and Growers object strenuously to the deposition's admissibility. The Court includes segments of Cuevas' deposition verbatim to illustrate the difficulty in comprehending the meaning of Cuevas' testimony.

During the deposition, Cuevas recalled that Orian commented that there would be a "good future for the company and also for the employers of the state of Washington because the labor from people from Thailand especially were going to advance a lot." ECF No. 801-10 at 8. Cuevas described Verbrugge's reaction to the comment as "indicating he didn't know what was going to—what was happening, that's why he was in agreement." Id. at 9. Cuevas clarified his response: "What I was saying is that he was just listening to Mr. Verbrugge or Valley Fruit to what Morti was suggesting. And Valley Fruit was just observing and they were being concerned because they wanted to have the labor to pick their crops." Id. at 10. Cuevas recalled Schwartz saying, "that the Thai workers were really hard workers and they were not bringing lawsuits or anything, they just wanted to work. And that will show an agreement or a bright future because of that." Id. at 12. EEOC counsel asked Cuevas whether anyone responded to Schwartz's comment, and Cuevas responded, "No. Everything was just left like that." Id. However, EEOC counsel asked, "And Mr. Schwartz said nothing else during that earlier conversation you mentioned where you said the Thai workers were hard workers and weren't suing?" Id. at 13. Cuevas responded, "He would just mention that the Hispanic workers will spend the whole time just questioning and suing. However, the people from Thailand would not ask any questions and would just come to work and willing to work seven days a week." Id. Cuevas described Verbrugge of Valley Fruit as "kind of nodding like indicating an agreement." Id. Cuevas recalled that "Morti as wellwas in agreement," but Cuevas described himself as being "in disagreement because I have had a history there for years and it was that way." Id. at 13-14.

Cuevas further recounted a conversation that he recalls hearing within the first two or three days of his employment with Global around late January 2004. ECF No. 801-10 at 4, 13-15. Cuevas said that he heard Morford of Green Acre having a conversation with Orian and a "driver . . . from Arizona or California" who "had a bus to transport people." Id. at 15. Cuevas recounted that the first thing he recalled being said in the conversation as follows, with EEOC counsel's questions and Cuevas' responses noted:

A. It caught my attention a lot, the fact that they had the crew from Thailand and they were working with hoes between rocks and it was really hot and they mentioned that they were not afraid of the heat and the hard work and they were watching them and recording them with a video camera. They would say, this is what we need here because the people that come from Mexico or the Hispanics from this area don't work like this.

Q. Who said that?

A. Morti said it. And Mr. Morford affirmed it.

Q. So let me just try and track who said what. And to the best that you can, please guide me through that. I need to know who said what.

A. Morti was mentioning that.

Q. So you mentioned that somebody said a comment to them how the Thai workers weren't afraid of heat and hard work. Who said that?

A. That's right. Morti said it.

Q. Okay. And then you mentioned that somebody said that we need Thai workers because people from Mexico or Hispanics from this area don't work this way. Who said that?

A. Morti said it as well. I think that Bruce was there at that time, too.

Q. Are you guessing or do you remember?

A.

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