Villalobos v. North Carolina Growers Ass'n

• Decision Date: 17 February 1999
• Docket Number: No. CIV. 97-1589(JAF).,CIV. 97-1589(JAF).
• Citation: 42 F.Supp.2d 131
• Parties: Maximo VILLALOBOS, et al., Plaintiffs, v. NORTH CAROLINA GROWERS ASSOCIATION, INC., et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

42 F.Supp.2d 131

Maximo VILLALOBOS, et al., Plaintiffs, v. NORTH CAROLINA GROWERS ASSOCIATION, INC., et al., Defendants.

No. CIV. 97-1589(JAF).

United States District Court, D. Puerto Rico.

February 17, 1999.

COPYRIGHT MATERIAL OMITTED

Julio M. Lopez-Keelan, San Juan, PR, for plaintiffs.

Luis D. Ortiz-Abreu, Goldman Antonetti & Cordova, San Juan, for defendants.

OPINION AND ORDER

FUSTE, District Judge.

Plaintiffs, Puerto Rico migrant agricultural workers, bring this action against Defendants, North Carolina agricultural employers and the North Carolina Growers Association, Inc. ("NCGA"), alleging violations of the Migrant and Seasonal Agricultural Worker Protection Act ("AWPA"), 29 U.S.C. §§ 1821, 1822, and 1823.

I. Background

In 1994, Defendant NCGA, acting as the agent and joint employer for the other defendants, prepared and submitted to the United States Department of Labor Regional Employment Training Administration ("ETA") in Atlanta and the North Carolina State Employment Security Agency ("NCSESA"), the local ETA office, clearance orders for agricultural jobs.¹ On behalf of over three-hundred and fifty North Carolina growers, NCGA filed the clearance orders which identified over twenty-five different crops and thirty different tasks with specialized wage rates. The ETA and NCSESA approved the clearance orders and transmitted them to the Puerto Rico Department of Labor, among other places.

The clearance orders, written in English not Spanish, specified that (1) they were "primarily for tobacco workers;" (2) the work weeks would be approximately forty hours; (3) the periods of employment would be from March 30, 1994 until November 1, 1994 for approximately two thousand eight-hundred workers and June 13, 1994 until November 1, 1994 for an additional four-hundred twenty-seven workers; (4) the work-related tools and equipment, bedding, and cooking utensils would be provided free of charge to the workers; (5) the working conditions would comply with applicable federal, state, and municipal laws; and (6) that employees would receive the same benefits, wages, and working conditions as temporary foreign workers. NCGA recruited and interviewed Plaintiffs by telephone through the Puerto Rico Department of Labor for the agricultural work in North Carolina described in the clearance orders.

Plaintiffs contend that the terms and conditions of their employment was materially different than that described in the clearance orders and that Defendants are liable. Plaintiffs allege that Defendants violated the AWPA by not providing the Plaintiffs with accurate written disclosures regarding the terms and conditions of employment in a language familiar to the Plaintiffs at the time of recruitment. Plaintiffs allege that the clearance orders omitted fundamental information, such as where Plaintiffs would be employed, in what agricultural area Plaintiffs would be working, which tasks Plaintiffs would perform, what compensation rate Plaintiffs would receive, and whether or not unemployment compensation would be provided. Plaintiffs maintain that since the information provided in the clearance orders was in English, a language in which most Plaintiffs were not fluent, it violates the Employment and Training Administration ("ETA") regulations, 29 U.S.C. §§ 1821(a) and (g).

Plaintiffs' second claim alleges that the terms of the clearance order were false or misleading, in violation of 29 U.S.C. §§ 1822 and 1823 because: Many of the Plaintiffs' jobs were not in tobacco; there was not enough work for all Plaintiffs; Defendants did not uniformly provide free work-related tools, bedding or cooking utensils; Defendants did not comply with applicable federal and state employment-related laws; and Defendants treated Plaintiffs less favorably than temporary foreign workers by not offering the same benefits, wages, and working conditions.

Plaintiffs' third claim is that Defendants failed to honor the working agreement they made with Plaintiffs, in violation of 29 U.S.C. § 1822, by failing to reimburse Plaintiffs for the reasonable costs of their transportation and subsistence from Puerto Rico to North Carolina and back to Puerto Rico.

Additionally, individual Plaintiffs have claims against individual Defendants for failure to pay wages due; failure to provide suitable housing; failure to keep proper payroll records to provide accurate, itemized pay statements; and use of transportation vehicles that do not comply with AWPA safety requirements. Finally, one Plaintiff, José Enrique Lugo, brings a discrimination claim against Defendant Bob Hendrix for allegedly retaliating against Lugo for attempting to enforce his rights under the AWPA.

Defendants have moved to dismiss Plaintiffs' claims alleging that (1) translation of the contents of the job order was the applicant holding state employment service agency's responsibility pursuant to 20 C.F.R. § 653.501(f)(2)(ii); (2) the Puerto Rico agency that recruited Plaintiffs was responsible for ensuring that they understood the terms and conditions of the jobs pursuant to 20 C.F.R. § 655.106(a); (3) the clearance orders do not violate the AWPA; (4) venue is improper since the majority of Plaintiffs' allegations occurred in North Carolina, not in Puerto Rico; and (5) this court lacks personal jurisdiction over at least some Defendants. Alternatively, Defendants move for a more definite statement pursuant to Federal Rule of Civil Procedure 8(a).

Plaintiffs responded that (1) read as a whole, their allegations meet the pleading requirements of Fed.R.Civ.P. 8(a); (2) Defendants are liable to Plaintiffs if the clearance orders violated the AWPA; (3) their complaint sets forth sufficient factual allegations as required by Fed.R.Civ.P. 8(a) and Defendants' motion for a more definite statement should be denied; (4) the court has personal jurisdiction over the Defendants; and (5) this court is a proper venue for Plaintiffs' claims. Plaintiffs then submitted an amended complaint.

II. Amendment of the Complaint

The Federal Rules of Civil Procedure liberally allow Plaintiffs to amend their pleadings at the discretion of the court. Fed.R.Civ.P. 15(a) ("leave shall be freely given when justice so requires"). The Supreme Court has emphasized that leave ordinarily should be granted "in the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of amendment." Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). Such amended pleadings relate back to the date of the filing of the original pleading, when the claim asserted "arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading." Fed. R.Civ.P. 15(c).

While we note that Plaintiffs have not per se moved to amend their complaint, we find no bad faith or dilatory actions on the part of Plaintiffs. The amended complaint is premised upon the same nucleus of operative facts as the original complaint and, therefore, Defendants will not be subject to any unfair surprise, undue delay or prejudice. Therefore, we accept Plaintiffs' amended complaint.

III. Motion to Dismiss Standard

Under Rule 12(b)(6), a defendant may move to dismiss an action against him based only on the pleadings for "failure to state a claim upon which relief can be granted...." Fed.R.Civ.P. 12(b)(6). In assessing a motion to dismiss, "[w]e begin by accepting all well-pleaded facts as true, and we draw all reasonable inferences in favor of the [nonmovant]." Washington Legal Foundation v. Massachusetts Bar Foundation, 993 F.2d 962, 971 (1st Cir. 1993); see also Coyne v. City of Somerville, 972 F.2d 440, 442-43 (1st Cir.1992). We then determine whether plaintiffs have stated a claim under which relief may be granted.

IV. The Clearance Orders

An agricultural and food processing clearance order ("clearance order") is "essentially an offer for a contract of employment," Western Colorado Fruit Growers Ass'n v. Marshall, 473 F.Supp. 693, 696 (D.Colo.1979), circulated through the interstate service system, which includes the regional offices of the ETA.² The ETA then attempts to coordinate the recruitment of workers. 20 C.F.R. § 655.101(c)(4). The goal of the interstate clearance system is to find domestic workers who meet the grower's needs. The interstate clearance system was established under authority conferred by the Wagner-Peyser Act of 1933, as amended, 29 U.S.C. § 49. Clearance orders are also the necessary precursor to an attempt to hire foreign workers. 29 U.S.C. § 1821(a)(1).

29 U.S.C. § 1821(a) details the precise information clearance orders shall contain,³ and 29 U.S.C. § 1821(g) further provides:

The information required to be disclosed by subsections (a) through (c) of this section to migrant agricultural workers shall be provided in written form. Such information shall be provided in English or, as necessary and reasonable, in Spanish or other language common to migrant agricultural workers who are not fluent or literate in English ....

28 U.S.C. § 1821(g).

In the present case, Plaintiffs allege that Defendants violated the AWPA by not providing them with accurate written disclosures regarding the terms and conditions of employment in a language familiar to the Plaintiffs at the time of recruitment. 29 U.S.C. §§ 1821(a) and (g). Plaintiffs also allege that the claims in the clearance order were false or misleading, in violation of 29 U.S.C. §§ 1822 and 1823⁴.

We find from the clear language of the statute that Plaintiffs have stated a claim. 29 U.S.C. § 1821(g) specifically provides that clearance order information "shall be provided ... in Spanish or other language common to migrant agricultural workers who are not fluent or literate in English." 29 U.S.C. § 1821(g)...