Hernandez v. Siri & Son Farms, Inc.

• Decision Date: 30 September 2021
• Docket Number: 6:20-cv-00669-MK
• Parties: HORTENCIA MARIA HERNANDEZ, an individual, Plaintiff, v. SIRI AND SON FARMS, INC., an Oregon corporation, Defendant.
• Court: U.S. District Court — District of Oregon

HORTENCIA MARIA HERNANDEZ, an individual, Plaintiff,
v.
SIRI AND SON FARMS, INC., an Oregon corporation, Defendant.

No. 6:20-cv-00669-MK

United States District Court, D. Oregon, Eugene Division

September 30, 2021

FINDINGS AND RECOMMENDATION

MUSTAFA T. KASUBHAI United States Magistrate Judge

Plaintiff Hortencia Maria Hernandez (“Plaintiff”) filed this action against Defendant Siri and Son Farms, Inc. (“Defendant”) alleging, as relevant here, violations of Sections 1831 and 1832 of the Migrant and Seasonal Agricultural Worker Protection Act (“AWPA”), 29 U.S.C. §§ 1831(e), 1832(a), and 1832(c); Section 1981 of the Civil Rights Act of 1866, 42 U.S.C. § 1981; and Oregon state law, ORS §§ 652.145, 652.150. Compl. ¶¶ 49-57, ECF No. 1. Defendant now moves for summary judgment as to all claims. See Def.'s Mot. Summ. J., ECF No. 14 (“Def.'s

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Mot.”). For the reasons that follow, Defendant's motion should be GRANTED in part and DENIED in part.

BACKGROUND

Defendant is an Oregon corporation that grows seasonal produce. Defendant employs agricultural workers for its operations. Siri Decl. ¶¶ 2-3, ECF No. 16.

In 2017 and 2018, Defendant successfully applied for the H-2A program and employed foreign workers (“H-2A workers”). Any employer participating in the H-2A program must offer to U.S. workers “no less than the same benefits, wages, and working conditions that the employer is offering, intends to offer, or will provide to H-2A workers.” 20 C.F.R. § 655.122. An employer must offer and pay the Adverse Effect Wage Rate (“AEWR”) to H-2A workers and to U.S. workers in corresponding employment during the H-2A recruitment period.^[1] 20 C.F.R. § 655.1300. The regulations governing the H-2A program define “corresponding employment” as the “employment of workers who are not H-2A workers by an employer . . . in any work included in the job order, or in any agricultural work performed by the H-2A workers.” 29 C.F.R. § 501.3. To qualify as corresponding employment, “the work must be performed during the validity period of the job order, including any approved extension thereof.” Id.

Defendant's 2018 job order contained the following description for its “Specialty Harvester/Buncher/Quality Judge/Shipping Prep” position:

This position harvests crops that require cutting with knives or other tools, bunching or banding with a rubber band or twistie; handling gently to avoid bruising or a disheveled bunch; counting accurately according to each crop's specific box count; judging quality (including gradations) of each crop to meet

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customer and industry standards; being able to perform the job while a supervisor tracks progress to ensure employees are meeting minimum requirements; being able to lift, carry over distance, repetitively stack and unstack boxes up to 65lbs. to maximize transportation efficiency; being able to perform tasks for extended periods of time often in the elements sitting on knees (for low to the ground crops) or standing to pack and palletize crops. Employees are expected to work through the end date of the contract period: April 10, 2018 - Dec 18, 2018

Siri Decl., Ex. 5 at 3, ECF No. 16-2. The form also indicated Defendant's preference for applicants with three months of experience and included box counts as well as minimum requirements for radish, spinach, cilantro, green onion, parsley, and kale. Id. at 7. Defendant's 2017 job order contained a similar description for the “Specialty Harvester/Buncher” position. Siri Decl., Ex. 4 at 3, ECF No. 16-1.

Defendant maintains that it had difficulty recruiting domestic workers for the “Specialty Harvester” position because it required a more specialized skillset compared to the “General Harvester” position. Siri Decl. ¶ 8, ECF No. 16. According to Defendant, the distinction between Specialty Harvesters and General Harvesters is that only Specialty Harvesters harvest and bunch radishes, spinach, cilantro, green onions, parsley, and kale. Siri Decl. ¶ 10, ECF No. 16. Specialty Harvesters are paid the AEWR, which is higher than a General Harvester's regular pay. Siri Decl. ¶ 9, ECF No. 16. In 2017, the AEWR for Oregon was $13.38. Bernasek Decl., Ex. 2, ECF No. 15-2.

In 2016 and 2017, Plaintiff worked for Defendant as a seasonal agricultural worker. Hernandez Decl. ¶¶ 4, 10, ECF No. 22. Plaintiff is a U.S. citizen. Hernandez Decl. ¶ 2, ECF No. 22.

In 2017, Plaintiff harvested and cut peppers, squash, carrots, and onions; performed work that required a knife or other tools with crops such as cilantro and kale; bunched and banded carrots; handled crops to avoid bruising; and made quality decisions regarding individual crop

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selection for harvesting. Hernandez Decl. ¶¶ 11-15, ECF No. 22. Plaintiff saw H-2A workers performing the same work as her, harvesting the same crops as her, and working on various crops that were not radish, spinach, cilantro, green onion, parsley, or kale. Hernandez Decl. ¶¶ 18-19, ECF No. 22.

Defendant did not pay Plaintiff AEWR wages for most of 2017. Hernandez Decl. ¶ 17, ECF No. 22; see also Siri Decl. ¶ 17, ECF No. 16 (“Hernandez was not engaged in corresponding employment when she worked for Siri so she was not entitled to AEWR wages.”). Defendant asserts that Plaintiff worked as a General Harvester and never harvested or bunched radishes, spinach, cilantro, green onions, parsley, and kale and was therefore not entitled to the higher AEWR wages. Siri Decl. ¶ 10, ECF No. 16. Plaintiff's regular wage rate was $11.50.^[2] Siri Decl., Ex. 6, ECF No. 16-3.

In July 2018, Plaintiff again applied for a job with Defendant. Siri Decl. ¶ 12, ECF No. 16. According to Defendant, Plaintiff did not apply for the Special Harvester position. Id. The job application, titled “Application for Seasonal Employment, ” did not specify to which position Plaintiff applied.^[3] Siri Decl., Ex. 7, ECF No. 16-4. On this application, Plaintiff listed her phone number, affirmed her employment eligibility, indicated that she worked for Defendant in the preceding year, and indicated that she had agricultural or horticultural experience within the last five years. Id. However, Defendant told Plaintiff no work was available at the time she submitted her application. Hernandez Decl. ¶¶ 25-26, ECF No. 22.

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Defendant did not affirmatively recruit Plaintiff for the Specialty Harvester position. Siri Decl. ¶ 13, ECF No. 16. Defendant maintains that Plaintiff worked as a General Harvester and that Defendant was not aware of any prior experience Plaintiff had as a Specialty Harvester. Id. However, when Plaintiff began working for Defendant in 2016, she already had more than three months of experience with cleaning, harvesting, bunching, and packing kale, radishes, spinach, cilantro, and green onions. Hernandez Decl. ¶¶ 6-7, ECF No. 22. Defendant never asked about her previous work experience. Hernandez Decl. ¶ 8, ECF No. 22.

Defendant attempted to contact Plaintiff regarding work on three separate occasions in 2018, but Plaintiff did not answer these calls. Siri Decl. ¶¶ 14-16, ECF No. 16. Plaintiff was unaware that Defendant called and never received any voicemails from Defendant. Hernandez Decl. ¶¶ 29-30, ECF No. 22.

STANDARD OF REVIEW

Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, affidavits, and admissions on file, if any, show “that there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Substantive law on an issue determines the materiality of a fact. T.W. Elec. Servs., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). Whether the evidence is such that a reasonable jury could return a verdict for the nonmoving party determines the authenticity of the dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

The moving party has the burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts which show a genuine issue for trial. Id. at 324.

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Special rules of construction apply when evaluating a summary judgment motion: (1) all reasonable doubts as to the existence of genuine issues of material fact should be resolved against the moving party; and (2) all inferences to be drawn from the underlying facts must be viewed in the light most favorable to the nonmoving party. T.W. Elec., 809 F.2d at 630.

DISCUSSION

Defendant moves for summary judgment on all three of Plaintiff's claims. First, Defendant asserts that summary judgment is appropriate as to Plaintiff's AWPA claim because: (1) a worker's claim regarding an alleged H-2A violation cannot alone provide a private claim for relief; (2) Plaintiff was not engaged in “corresponding employment” with the H-2A workers and therefore Defendant did not violate any term of the H-2A program; and (3) Defendant did not knowingly provide false or misleading information to Plaintiff regarding the terms or conditions of employment. Second, Defendant asserts that summary judgment is appropriate as to the Section 1981 claim because: (1) Plaintiff's discrimination claim is based on national origin which is not authorized by Section 1981; and (2) Defendant had a legitimate non-discriminatory reason for not hiring Plaintiff. Lastly, Defendant asserts that summary judgment is appropriate as to the Oregon state law claim because Plaintiff was not engaged in “corresponding employment” and therefore was not entitled to AEWR wages. Plaintiff disagrees and argues that: (1) Plaintiff was engaged in “corresponding employment” and therefore Defendant violated the terms of the H-2A program under 29 U.S.C. § 1832(a) and § 1832(c); (2) Plaintiff's Section 1981 claim is a citizenship or...