Equal Employment Opportunity Commission v. Global Horizons Inc et al, No. 2:2011cv03045 - Document 582 (E.D. Wash. 2014)
Court Description: ORDER Granting in Part, Denying in Part and Denying as Moot in Part the Grower Defendants' Summary Judgment Motion, ECF No. 408 ; Granting in Part and Denying as Moot in Part the EEOC's Amended Motion for Partial Summary Judgment, ECF No. 517 ; and Striking Trial at this Time; denying as moot ECF Nos. 559 , 562 , and 568 . Signed by Senior Judge Edward F. Shea. (PL, Case Administrator)
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Equal Employment Opportunity Commission v. Global Horizons Inc et al Doc. 582 1 2 3 4 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 5 6 7 No.: CV-11-3045-EFS EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, ORDER GRANTING IN PART, DENYING IN PART, AND DENYING AS MOOT IN PART THE GROWER DEFENDANTS’ SUMMARYv. JUDGMENT MOTION; GRANTING IN PART GLOBAL HORIZONS, INC., d/b/a Global AND DENYING AS MOOT IN PART THE Horizons Manpower, Inc.; GREEN ACRE EEOC’S AMENDED MOTION FOR PARTIAL FARMS, INC.; VALLEY FRUIT ORCHARDS, SUMMARY JUDGMENT; AND STRIKING TRIAL AT THIS TIME LLC; and DOES 1-10 inclusive, Plaintiff, 8 9 10 11 Defendants. 12 13 A hearing occurred in the above-captioned matter on May 14, 14 15 2014. EEOC was represented by Sue Noh, Derek Li, Damien Lee, and 16 Jamal Whitehead. 17 LLC (collectively, the “Grower Defendants”) were represented by Beth 18 Joffe, Brendan Monahan, and Olivia Gonzales. 19 two summary judgment motions: 1) Grower Defendants’ Motion for Summary 20 Judgment, 21 Summary Judgment on the Grower Defendants’ First Affirmative Defense 22 (Conditions Precedent), ECF No. 517. 23 broader, 24 individual Grower Defendant is not a joint employer with Global, 2) 25 there is no evidence presented by the EEOC to establish a triable 26 issue of fact to survive summary judgment on its Title VII claims ECF Green Acre Farms, Inc. and Valley Fruit Orchards, No. seeking 408, a and ruling 2) on EEOC’s Before the Court were Amended Motion for Partial The Grower Defendants’ motion is three different matters: 1) each ORDER - 1 Dockets.Justia.com 1 against the Grower Defendants, and 3) the EEOC failed to satisfy its 2 pre-lawsuit Title VII requirements. 3 the last issue: seeking summary judgment on the Grower Defendants’ 4 first affirmative defense, which submits the EEOC failed to satisfy 5 its statutory pre-lawsuit requirements. 6 and relevant authority and listening to counsels’ arguments, the Court 7 grants in part, denies in part, and denies as moot in part the Grower 8 Defendants’ motion, ECF No. 408, and grants in part and denies as moot 9 in part the 10 A. motion, ECF No. After reviewing the record 517. The Court’s reasoning follows. 11 EEOC’s The EEOC’s motion is focused on Factual Statement1 12 Green Acre Farms, Inc. (“Green Acre”) and Valley Fruit Orchards, 13 LLC (“Valley Fruit”) are both located in Eastern Washington and grow a 14 1 15 When considering the motions, the Court 1) believed the 16 undisputed facts and the non-moving party=s evidence, 2) drew all 17 justifiable inferences therefrom in the non-moving party=s favor, 3) 18 did not weigh the evidence or assess credibility, and 4) did not 19 accept 20 contradicted by the record. 21 U.S. 242, 255 (1986); Scott v. Harris, 550 U.S. 372, 380 (2007). 22 lieu of a detailed factual statement, the Court highlights basic facts 23 in this factual statement, and then adds more facts in conjunction 24 with the analysis of particular issues below. 25 detailed 26 uncontroverted facts. assertions ORDER - 2 facts made can by be the non-moving party that were flatly See Anderson v. Liberty Lobby, Inc., 477 found in the ECF Nos. 528 & 539. In In addition, more parties’ statements of 1 variety of crops, including apples, pears, and peaches. Starting in 2 approximately experienced 3 significant labor shortages. 4 shortages, Jim Morford, the owner of Green Acre, and John Verbrugge, 5 the 6 Executive Officer of Defendant Global Horizons, Inc. (“Global”), to 7 discuss having 8 Grower Defendants’ 9 independently contracted with Global for Global to provide temporary 10 owner 2003, of Valley Green Acre a Valley Fruit each In late 2003, in response to the labor Fruit, Global, and met labor orchards. with Mordechai contractor, Each of Orian, supply the the workers Grower Chief to the Defendants guest workers for their respective operations in 2004 and 2005. Through a federal H-2A guest worker program, Global provided the 11 12 Grower Defendants with workers from Thailand. 13 Labor Contractor Agreements entered into with the Grower Defendants, 14 Global 15 paying the Thai guest workers. 16 for 17 weather. was the responsible Thai guest for housing, workers as Pursuant to the Farm providing transportation, and Each Grower Defendant provided work permitted by the crop season and Global’s primary orchard supervisor in Washington in 2004 was 18 19 Bruce Schwartz, 20 periodically to observe the Thai guest workers. 21 Blevins was Global’s primary orchard supervisor for the Thai guest 22 workers 23 Mr. Schwartz, Global employed orchard supervisors in Washington named 24 Pranee Tubchumpol, Larry Collins, Sam Wongsesanit, Prinya Sangkarat, 25 Joseph Knoller, and Jose Cuevas. 26 ORDER - 3 in and in Washington. 2005, Id. Mr. Schwartz In returned addition Id. to to Washington In 2005, Charlie Mr. Blevins and 1 Global’s supervisors met each day with representatives of Green 2 Acre and Valley Fruit to determine the nature of work that needed to 3 be 4 management would demonstrate for the Thai guest workers as to how a 5 particular orchard task would be accomplished. 6 interpreters, as the Thai workers did not speak or understand English 7 and 8 understand Thai. 9 orchard performed the at Grower as the each orchard. Defendants’ Grower owners and Defendants’ owners and/or Global staff served as managers did not speak or Task instructions were often different for each approaches to pruning, thinning, tying, and even 10 harvest depended on a variety of factors such as the age, size, and 11 health of the trees. 12 were instructed to “color pick” at times and to pay attention to fruit 13 size.2 14 conditions 15 Grower Defendants in their respective orchards. Additional also Consistent with industry practices, work crews factors affected such the as weather, independent variety, approaches and taken market by the 16 2 17 In the apple-growing industry, only apples of a certain size 18 or color grade can be readily sold; this is why workers are told to 19 avoid picking the “culls.” 20 of an apple and the difficulty level or work involved in picking it. 21 Apples are graded by color at the packing house and those with a 22 better color are graded higher and thus sell for a higher price on 23 the market. 24 that workers should not pick apples that are less than 2.25 inches 25 and/or are green (other than a green variety apple, such as Granny 26 Smith); apples such as these are referred to as culls. ORDER - 4 There is no relationship between the size The only instruction given as to size of an apple is 1 During 2004 and 2005, Global staff and management threatened in 2 Thai to send the Thai workers back to Thailand or transfer them to 3 other farms making less money, if they did not work hard enough, 4 complained, failed to obey, or missed the daily headcount. 5 The EEOC received hundreds of charges of discrimination filed by 6 Thai guest workers who had worked for Global and farms throughout the 7 continental United States and in Hawaii. 8 filed Charges of Discrimination against Green Acre; twenty-eight Thai 9 individuals filed Charges of Discrimination against Valley Fruit. Seventy-two Thai individuals In 2011, the EEOC brought suit on behalf of Thai guest workers 10 11 who worked at the Grower Defendants’ orchards and filed an 12 administrative claim (“Thai Claimants”).3 13 claims against Global and the Grower Defendants, as joint employers, 14 including claims of hostile work environment, constructive discharge, 15 and retaliation (only as to Green Acre), on behalf of these Thai 16 Claimants. 17 B. The EEOC pursues Title VII Summary Judgment Standard 18 Summary judgment is appropriate if the record establishes "no 19 genuine dispute as to any material fact and the movant is entitled to 20 judgment as a matter of law.@ 21 opposing summary judgment must point to specific facts establishing a 22 genuine dispute of material fact for trial. 23 3 During Fed. R. Civ. P. 56(a). The party Celotex Corp. v. Catrett, 2004 and 2005, the Grower Defendants also used the 24 services of workers who appeared to be of Hispanic descent. No claims 25 are brought on behalf of the Hispanic-descent workers in this lawsuit. 26 ORDER - 5 1 477 U.S. 317, 324 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio 2 Corp., 475 U.S. 574, 586-87 (1986). 3 make such a showing for any of the elements essential to its claim for 4 which it bears the burden of proof, the trial court should grant the 5 summary judgment motion. 6 C. If the non-moving party fails to Celotex Corp., 477 U.S. at 322. Analysis and Authority 7 The Grower Defendants seek dismissal of the Title VII claims 8 against them because 1) the EEOC cannot establish a genuine dispute of 9 material fact that the Grower Defendants were the Thai Claimants’ 10 employers as required by Title VII, 2) the EEOC cannot establish a 11 genuine dispute of material fact that the Grower Defendants mistreated 12 or discriminated against any Thai Claimant on the basis of race or 13 national origin or retaliated against any Thai Claimant because of the 14 exercise of a right protected under Title VII, and 3) the EEOC failed 15 to satisfy its Title VII investigation and conciliation requirements 16 before 17 entirety, and also seeks a ruling in its favor on the last issue 18 through its own summary-judgment motion. filing the lawsuit. The EEOC opposes the motion in its 19 1. 20 The Grower Defendants argue there is no evidence to support a 21 finding that the Grower Defendants were the Thai Claimants’ employers, 22 rather the evidence shows that Global remained the Thai Claimants’ 23 sole employer even on the orchards, consistent with the parties’ Farm 24 25 26 ORDER - 6 Title VII Employer Status Contractor Agreements.4 The EEOC disagrees, contending the 1 Labor 2 evidence establishes a triable issue of fact as to whether the Grower 3 Defendants 4 Defendants’ owners and/or managers dictated where in the orchards the 5 Claimants would work and what tasks they would complete, and that Mr. 6 Morford, the owner of Green Acre, and Mr. Verbrugge, the owner of 7 Valley Fruit, both recognized that if they were unhappy with a Thai 8 Claimant’s work quality that they could tell Global that the Thai 9 Claimant would no longer work at their orchard. employed Title 10 VII the serves to achieve 14 v. 15 (recognizing that the “connection with employment need not necessarily 16 be direct”). 17 4 880, 883 U.S. employment claimed aggrieved employee in order for Title VII to apply. F.2d 401 Grower 13 633 Co., in the Accordingly, a defendant must be deemed to be an employer of the 47, Power equality that 12 Local Duke given opportunities. Union v. Claimants 11 Musicians Griggs Thai (9th 424 (1971). Lutcher Cir. 1980) The Court previously ruled that the First Amended Complaint, 18 ECF No. 141, fails to allege sufficient facts to support a finding 19 that the Grower Defendants were “employers” of the Thai Claimants as 20 to non-orchard related matters, such as recruiting, transportation, 21 housing, and wage payment. ECF No. 178 at 7-8. Accordingly, the 22 question before the Court now is whether the EEOC presented sufficient 23 evidence to establish a triable issue of fact has to whether the 24 Grower Defendants were the Thai Claimants’ employers for orchard25 related matters. 26 ORDER - 7 1 The test applied to determine whether an entity is an employer 2 for Title VII has been adopted from the employee-versus-independent 3 contractor setting. 4 determine 5 contractor for purposes of Title VII: 6 hiring party's right to control the manner and means by which the 7 product is accomplished.’” Murray v. Principal Fin. Grp., Inc., 613 8 F.3d 943, 945-46 (9th Cir. 2010) (quoting Nationwide Mut. Ins. Co. v. 9 Darden, 503 U.S. 318, 323 (1992)). whether In that context, the following test is used to an individual is an employee or an independent “a court should evaluate ‘the Although the right to control the 10 means and manner of the worker’s performance is the primary factor to 11 determine whether one is the employer of the worker, the following 12 factors are also analyzed: 1) the skill required; 2) the source of the 13 instrumentalities and tools; 3) the location of the work; 4) the 14 duration 15 hiring party has the right to assign additional projects to the hired 16 party; 6) the extent of the hired party's discretion over when and how 17 long to work; 7) the method of payment; 8) the hired party's role in 18 hiring and paying assistants; 9) whether the work is part of the 19 regular business of the hiring party; 10) whether the hiring party is 20 in business; 11) the provision of employee benefits; and 12) the tax 21 treatment of the hired party. 22 at 323). 23 an economic reality test to determine that a farm was a joint employer 24 for purposes of the Fair Labor Standards Act and Migrant and Seasonal 25 Agricultural Worker Protection Act). 26 ORDER - 8 of the relationship between the parties; 5) whether the Id. at 945-46 (quoting Darden, 503 U.S. Cf. Torres-Lopez v. May, 111 F.3d 633 (9th Cir. 2007) (using 1 After focusing on these factors and, in particular, the 2 “control” factor, the Court finds a genuine dispute of material fact 3 exists 4 Claimants, 5 There is sufficient evidence put forward by the EEOC that the Grower 6 Defendants’ owners and supervisors controlled the work to be done by 7 the Thai Claimants. 8 responsible for monitoring and tracking the Thai Claimants’ work, 9 there is evidence that the Grower Defendants’ owners and managers 10 provided instruction and direction, through the use of interpreters, 11 to the Thai Claimants as to what tasks to work on, what areas of the 12 orchard to work, and how to perform a task. 13 Global supervisors were primarily responsible for overseeing the Thai 14 Claimants while 15 monitored the 16 supervisors to address deficient work, such as bruising of apples. 17 Therefore, focusing solely on the Grower Defendants’ control as to the 18 Claimants’ 19 triable dispute of fact as to whether the Grower Defendants are the 20 Thai Claimants’ employer. 21 as to in whether the addition to they were Thai many Global, Defendants for employed orchard-related the Thai activities. As to control, although Global was primarily at the Claimants’ orchard-related Although Grower of the orchard, work activity, In addition, even though the product the Court Grower and Defendants advised finds there Global is a independent-contractor-versus-employee 22 factors are not directly on point, the Court proceeds to analyze these 23 factors as well. 24 Defendants did not control which Thai Claimants initially came to the 25 orchards and what skills those particular Thai Claimants possessed. 26 However, ORDER - 9 once at As to the first factor (skill required), the Grower the orchard, the Grower Defendants’ owners and 1 managers demonstrated how the work should be done, and communicated 2 with the Global supervisors if they were unhappy with the work product 3 achieved by the Thai Claimants. 4 As to the second factor, the source of the instrumentalities and 5 tools, the Grower Defendants provided the orchard, as well as the 6 tools to be used by the Thai Claimants, including pruning and picking 7 equipment. 8 selected which Thai Claimants worked at what orchard; yet the Grower 9 Defendants identified what area of an orchard a Claimant would work on 10 As to the third factor, the location of work, Global a particular day. 11 The fourth factor, the duration of the relationship between the 12 parties, weighs both in favor and against a finding that the Grower 13 Defendants were the Thai Claimants’ employer. 14 each 15 particular orchard or work crew. 16 typically work at the Grower Defendants’ orchards for merely days, but 17 rather 18 Defendant. Claimant worked and for decided weeks which Thai First, Global hired Claimant to assign to a However, the Thai Claimants did not and/or months for a particular Grower 19 As to the fifth factor, whether the hiring party has the right 20 to assign additional tasks to the hired party, there is no evidence 21 that 22 Claimant. 23 did 24 particular 25 26 the Grower assigned non-orchard to additional tasks—so long as to a Thai Global still offered that Thai Claimant to work at that orchard. the sixth factor, the extent discretion over when and how long to work. ORDER - 10 work However, as to orchard-related tasks, the Grower Defendants assign As Defendants of the hired party’s Global was responsible for 1 determining at which particular orchard or farm the Thai Claimant 2 worked and for what duration. 3 was unhappy with a Thai Claimant’s work performance, it was understood 4 that Global would reassign the Thai Claimant to a different orchard or 5 farm. 6 that the Grower 7 Defendants advised Global as to how many workers they desired. Global 8 would then determine which Thai Claimants would work at that orchard. 9 The hours worked on a particular day was dependent on a number of 10 factors, including the particular task, the speed of work done by the 11 Thai Claimants, whether chemicals had been applied to the orchard, and 12 the weather. 13 how long the Thai Claimants worked on a particular day, while the 14 Global supervisors determined when the Thai Claimants would take their 15 breaks 16 transportation was dependent on Global, the Thai Claimant had little 17 discretion over when and how long to work. 18 choose to not work when sick. 19 However, if a Grower Defendant owner As to whether orchard work was available on a particular date, decision during was made by the Grower Defendants, and Accordingly, the Grower Defendants did control when and a particular work day. Because a Thai Claimant’s Yet a Thai Claimant could The seventh factor, the method of payment, weighs against a 20 finding that the Grower Defendants employed the Thai Claimants. 21 Global was solely responsible for paying the Thai Claimants based on 22 the hours they worked. 23 the total hours worked by the Thai Claimants. Grower Defendants would pay Global based on 24 As to the eighth factor (the hired party's role in hiring and 25 paying assistants), there is no evidence that the Thai Claimants hired 26 or paid assistants. ORDER - 11 As to the ninth and tenth factors (whether the 1 work is part of the regular business of the hiring party, and whether 2 the hiring party is in business), it is undisputed that the work done 3 by the Thai Claimants was orchard work done in the regular course of 4 the Grower Defendants’ business. 5 The eleventh factor, the provision of employee benefits, weighs 6 in favor of finding that the Grower Defendants are not the employers 7 of the Thai Claimants given that the Grower Defendants did not provide 8 any employee benefits, such has health insurance or retirement, to the 9 Thai Claimants. The final factor, the tax treatment of the hired 10 party, also weighs in favor of finding that the Grower Defendants did 11 not employ the Thai Claimants as, as indicated above, it was Global, 12 not the Grower Defendants, who paid the Thai Claimants. 13 In summary, when viewing the entire record in the light most 14 favorable to the EEOC, including the Thai Claimants’ declarations and 15 deposition testimony, the Court finds a genuine issue of material fact 16 as to whether the Grower Defendants were joint employers under Title 17 VII of the Thai Claimants with Global as to orchard-related matters. 18 The evidence presented shows triable disputes of fact as to whether 19 the Grower Defendants controlled the Thai Claimants’ work tasks and 20 the manner to accomplish such tasks. 21 ECF No. 485, Ex. 1 ¶¶ 24 & 25, Ex. 2 ¶¶ 17 & 18, Ex. 3 ¶¶ 15, 16, & 22 22, Ex. 4 ¶ 20, Ex. 5 ¶¶ 18-21, Ex. 6 ¶¶ 13 & 14, Ex. 7 ¶¶ 22-24, Ex. 23 8, ¶ 18, Ex. 10 ¶¶ 23, 25 & 26; ECF No. 486, Ex. 11 ¶¶ 13-1, Ex. 12 ¶¶ 24 10, 22, & 24-29, Ex. 13 ¶¶ 28-30, Ex. 14 ¶¶ 11 & 39, Ex. 15 ¶¶ 19 & 25 20, Ex. 16 ¶¶ 24-28 & 42-44, Ex. 17 ¶¶ 24-26, Ex. 18 ¶¶ 26-33; ECF No. 26 ORDER - 12 See, e.g., ECF No. 415, Ex. TT; 1 490, Ex. 74 at 47:11-23, Ex. 80 at 57:4-25. Accordingly, the Court 2 denies the Grower Defendants’ motion in this regard. 3 2. Merits of Title VII Claims 4 The Grower Defendants ask the Court to find the EEOC fails to 5 establish a triable dispute of fact to support its Title VII claims 6 against them. 7 Defendants intentionally selected Thai workers to work at the orchards 8 because they knew that Thai workers were compliant workers who would 9 not complain about discriminatory practices by them or Global. The EEOC opposes this request, arguing the Grower As set 10 forth below, the Court finds the evidence fails to establish a genuine 11 dispute of material fact as to any of the asserted Title VII claims 12 against the Grower Defendants. 13 Title VII provides it is “an unlawful employment practice for an 14 employer . . . to discriminate against any individual with respect to 15 his 16 because of such individual’s race . . . or national origin.” 17 U.S.C. § 2000e-2(a)(1). 18 (and 19 Defendants, constructive discharge (and related pattern-and-practice) 20 claims against both Grower Defendants, and a retaliation claim against 21 Green Acre. compensation, related a. 22 terms, conditions, or privileges of employment, 42 The EEOC pursues hostile work environment pattern-and-practice) claims against both Grower Hostile-Work-Environment Claim on Behalf of Each Thai Claimant 23 24 The EEOC pursues individualized hostile-work-environment claims 25 under § 706 (42 U.S.C. § 2000e-5(f)) on behalf of each Claimant and a 26 § 707 (42 U.S.C. § 2000e-6) pattern-and-practice claim. ORDER - 13 As to its § 1 706 hostile-work-environment claims, the EEOC contends that an 2 individualized assessment as to each Thai Claimant need not be used by 3 the Court because the EEOC is “not required to offer evidence that 4 each person for whom it will ultimately seek relief was a victim of 5 the employer’s discriminatory policy,” Int’l Bhd. Of Teamsters v. 6 United States, 431 U.S. 324, 360 (1977). 7 Teamsters, however, involved a Title VII § 707 pattern-and-practice 8 claim. 9 regarding International Brotherhood of Therefore, the Supreme Court’s statements contained therein not making an individualized assessment until after 10 liability is determined must be analyzed in that context. 11 2000e-5(f)’s 12 individualized assessment must be used for a hostile-work-environment 13 § 14 Claimant. 15 1020-21 (D. 16 brought by 17 Travel Stops & Country Stores, Inc., 677 F. Supp. 2d 1176, 1187 (D. 18 Ariz. 2009) (analyzing the employer’s actions as to the two female 19 employees on whose behalf the EEOC filed its lawsuit). 20 language 2000e-5(f) (§ 706) and claim purpose, brought the by Court the EEOC rules on Based on § that behalf an of a See EEOC v. Swissport Fueling, Inc., 916 F. Supp. 2d 1005, Ariz. EEOC 2013) on Accordingly, to a (analyzing hostile-work-environment claimant-by-claimant prove its basis); EEOC hostile-work-environment v. claims Love’s claim for 21 each Thai Claimant, the EEOC must prove that the particular Thai 22 Claimant was subjected to verbal or physical conduct by the Grower 23 Defendants based on his race or national origin, and the conduct was 24 unwelcome alter the 25 employment conditions and create an abusive working environment. See 26 Surrell v. Cal. Water Serv. Co., 518 F.3d 1097 (9th Cir. 2008); ORDER - 14 and sufficiently severe and pervasive to 1 Freitag v. Ayers, 458 F.3d 528, 549 (9th Cir. 2006). In addition 2 because of the joint-employer liability issue, the EEOC may establish 3 that the Grower Defendants are liable for a hostile work environment 4 if 1) Global subjected a Thai Claimant to unwelcome verbal or physical 5 conduct in an orchard-related matter, 2) the Grower Defendants knew or 6 should have known about this unwelcome conduct, which was based on the 7 Claimant’s race or national origin, 3) the conduct was sufficiently 8 severe and pervasive to alter the employment conditions and create an 9 abusive working environment, and 4) the Grower Defendants failed to 10 take corrective measures that were within its control. ECF No. 460 at 11 5. 12 show that a Thai Claimant’s work environment was both subjectively and 13 objectively hostile. 14 634, 15 environment, the Court looks to the totality of the circumstances, 16 including the frequency, severity, and nature of the conduct. To satisfy the “abusive work environment” prong, the EEOC must 642 (9th EEOC Cir. See Vasquez v. Cnty. of Los Angeles, 349 F.3d 2003). nature 20 totality of the circumstances, including in limited respects Global’s 21 non-orchard 22 determination regarding the hostile work environment claims is focused 23 on 24 unwelcome verbal or physical conduct based on the Claimant’s race or 25 national origin that was sufficiently severe and pervasive to alter 26 the employment conditions and create an abusive working environment, ORDER - 15 a Grower can look Id. orchard-related activity. related Court must work 19 the Court the totality circumstances, the of 18 whether because the The the that analyzing 17 of contends In consider to more the than The Court agrees that it may look at the conduct, Defendant however, 1) the subjected Court’s a Thai ultimate Claimant to 1 or 2) knew or should have known of unwelcome verbal or physical 2 conduct at the orchards, which was based on the Claimant’s race or 3 national origin, by Global that was sufficiently severe and pervasive 4 to 5 environment, and which the respective Grower Defendant failed to take 6 corrective measures within its control. alter the employment conditions and create an abusive working 7 With this focus, the Court finds the EEOC failed to meet its 8 burden of proof on its § 706 hostile-work-environment claims as to any 9 Thai Claimant. There simply is no evidence to support a finding that 10 any Grower Defendant owner or manager engaged in physical conduct 11 toward a Thai Claimant, and there is no evidence to support a finding 12 that the Grower Defendants’ verbal discussions with a Thai Claimant, 13 which 14 objectively or subjectively hostile and based on the Thai Claimant’s 15 race or national origin. 16 that the Grower Defendants’ owners and managers discussed with the 17 Thai Claimants the need to be careful with how they picked the fruit 18 and/or that the Thai Claimants needed to speed up their work. 19 e.g., ECF No. 485, Ex. 9 ¶ 21; ECF No. 486, Ex. 12 ¶ 31, Ex. 13 ¶ 31; 20 Ex. 21 interactions between a Grower Defendant owner or manager and a Thai 22 Claimant, which were interpreted by a Global supervisor, were not 23 unwelcome conduct, and even if the conduct could be construed as 24 unwelcome, it was not sufficiently severe to create an abusive working 25 environment. 15 were ¶ 26 ORDER - 16 all 21. done These through a Thai interpreter, were either The mass of evidence before the Court shows work quantity and quality discussions See, and 1 The most detailed description of a negative interaction between 2 a Thai Claimant and a Grower Defendant personnel is a statement made 3 by Supap Promson: At Green Acre, the owner or manager rode a motorcycle around the orchards and observe me and the other Thai workers. One time, this farm owner or manager told Global’s supervisor to send me home because he said I was bruising the fruit. I was sent back to the bus. We were sent home when the Global supervisor told us that the Green Acre owner or manager told him that there was no more work or that the fields were not available for work. Using a Global supervisor who could speak Thai, the Green Acres owner or manager also made me re-do work, like going back and picking more apples, or picking the right size apples. 4 5 6 7 8 9 10 ECF No. 486-10 (grammar errors in original). 11 Chuenjaichon also made a similar statement in his declaration, “In 12 2005, I saw the Green Acre owner Jim Morford inspecting the apples and 13 was not happy that the apples were bruised. Jim Morford fired the 14 group leader and about three other Thai workers by not having them 15 work in Green Acre any more.” 16 No. 487, Ex. 28 ¶ 35. 17 Defendants 18 Claimants’ race or national origin; rather, Green Acre’s interactions 19 with the Thai Claimants sought to achieve a quality work product 20 without regard to the Thai Claimants’ race or national origin. created a ECF No. 485, Ex. 5 ¶ 22; see also ECF These statements fail to show that the Grower hostile work environment Thai Claimant Chit Intip also stated: 21 Thai Claimant Jare based on the Thai “Valley Fruit and Green 22 Acres farm owners/managers were aware that me and my Thai-coworkers 23 were routinely subjected to threats because my Thai coworkers who 24 could speak English spoke to farm employees.” 25 13. 26 specifics as to whom the Grower Defendants’ personnel was, does not ECF No. 485, Ex. 7 ¶ This statement, however, is conclusory and does not contain any ORDER - 17 1 indicate 2 national origin, and lacks personnel knowledge as to what was actually 3 translated. 4 interactions are insufficient to create a severe or pervasive hostile 5 work environment, which is both subjectively and objectively abusive. 6 See, e.g., Sanchez v. City of Santa Ana, 936 F.2d 1027 (9th Cir. 7 1990). 8 9 that the “threats” were due to the Claimants’ race or “Few tepid incidents of aggressive, or even offensive, In comparison to these tepid statements, other Thai Claimants stated that the Grower Defendants did not take any racially or 10 national-origin based unwelcome conduct toward them. 11 Marut Kongpia testified that no one from Valley Fruit threatened or 12 yelled at him and he did not observe such conduct toward other Thai 13 Claimants. 14 also ECF No. 412, Ex. Q at 54:2-5, Ex. S at 64:11-25. 15 true for Laphit Khodthan, who stated that he was not talked unkindly 16 to by anyone from Green Acre and Green Acre’s personnel did not 17 discipline him, other than teach him to trim trees a certain way. 18 No. 411, Ex. O at 38:13-23 & 39:1-18. 19 Valley Fruit was similar. 20 Some For example, ECF No. 411, Ex. P at 43:23-25, 71:20-25, & 72:1-15; see Thai This is also ECF Mr. Khodthan’s experience at Id. at 40:18-22 & 52:14-25. Claimants did state that Global workers used 21 derogatory names, such as “lizard” and “stupid,” toward them. 22 487, Ex. 28 ¶ 35, Ex. 34 ¶ 16; ECF No. 491, Ex. 89 at 181:1-25. 23 However, these words were spoken to the Thai Claimants in Thai by 24 Global 25 personnel were present when these statements were made, or that the 26 Grower Defendants’ personnel could even understand what was said in personnel. ORDER - 18 There is no evidence that Grower ECF No. Defendants’ 1 Thai if they were present. 2 the Grower Defendants’ personnel did not understand or speak Thai and 3 that 4 Defendants’ personnel were through Global interpreters. 5 Ex. 3 ¶ 26 (“I also saw Jim [Morford] personally supervise Thai 6 workers through an interpreter, . . . ), Ex. 4 ¶ 20 (Green Acre’s 7 supervisors “observed our job performance and through the use of an 8 interpreter, would reprimand us and correct or [sic] work.”), Ex. 10 ¶ 9 26 all communications (“Global group Instead the evidence clearly shows that with leaders the such Thai as Claimants Narong and and the Grower ECF No. 485, Detnarong would 10 interpret.”); ECF No. 486, Ex. 15 ¶ 25, Ex. 17 ¶ 26, Ex. 18 ¶¶ 30 & 11 33, Ex. 20 ¶ 28; ECF No. 487, Ex. 26 ¶ 23 (“As a group leader, I 12 served as a Thai interpreter between my fellow Thai workers and the 13 Valley Fruit farm office and managers.”), Ex. 27 ¶ 21 (“With the 14 assistance of Thai group leaders interpreting, Valley Fruit management 15 and employees trained me and my Thai co-workers . . . .”); ECF No. 16 490, Ex. 74 at 52:1-25 & 53:1, Ex. 78 at 176:18-25 (The Thai workers 17 “were really nice guys but they didn’t comprehend and you couldn’t 18 communicate with them except through the [Global] supervisors.”). 19 There is evidence that a Global supervisor used physical force 20 on a Thai Claimant. Detnarong Nuansri states, “Global supervisor 21 Chaiyot hit my head with a cane when he ordered me to work faster and 22 faster.” ECF No. 486, Ex. 17 ¶ 14. 23 this incident was witnessed by, or reported to, a Grower Defendant. However, there is no evidence that 24 After viewing the evidence in the light most favorable to the 25 EEOC, the Court grants the Grower Defendants’ summary judgment on the 26 EEOC’s hostile work environment claim brought on behalf of the Thai ORDER - 19 1 Claimants because the evidence submitted fails to establish a triable 2 issue of fact as to whether the Grower Defendants subjected Thai 3 Claimants 4 Claimant’s race or national origin that was sufficiently severe or 5 pervasive to alter the employment conditions and create an abusive 6 working environment, or knew or should have known of unwelcome verbal 7 or physical orchard-related conduct, which was based on the Claimant’s 8 race or national origin, by Global that was sufficiently severe or 9 pervasive to alter the employment conditions and create an abusive 10 working environment, and Grower Defendant failed to take corrective 11 measures within its control. 12 Grower Defendants summary judgment on the EEOC’s § 706 hostile work 13 environment claims. unwelcome b. 14 15 to The verbal or physical conduct based on the For these reasons, the Court grants the Pattern and Practice of a Hostile Work Environment Grower Defendants also ask the Court to enter summary 16 judgment in their favor on the EEOC’s pattern and practice hostile- 17 work-environment claim because the EEOC fails to establish a triable 18 issue of fact as to this claim. 19 discrimination, the EEOC must prove that the discrimination by the 20 Grower Defendants was their “standard operating procedure,” rather 21 than isolated incidents. The 23 practice 24 conditions by 1) setting production quotas at an unreasonable level 25 and pushing the Thai Claimants to meet them, including by threatening 26 the Claimants that failure to meet production quotas would result in of contends Int’l Bhd. of Teamsters, 431 U.S. at 336. 22 ORDER - 20 EEOC To prove a pattern or practice of subjecting the the Grower Thai Defendants Claimants had to a pattern abusive and working 1 the Claimant being discharged and sent back to Thailand, 2) inspecting 2 their work and reprimanding them for not picking the fruit properly or 3 meeting production quotas, 3) assigning easier jobs or trees to pick 4 to the workers who appeared to be of Hispanic descent (“Hispanic- 5 descent workers”), and 4) ignoring Global’s abusive and discriminatory 6 conduct toward the Thai Claimants. 7 As summarized above, the evidence simply fails to show that the 8 Grower Defendants created a hostile work environment for the Thai 9 workers, or that the Grower Defendants knew that Global had created a 10 hostile work environment at the orchards. As to the production quotas 11 that unreasonable, 12 evidence submitted that such quotas were objectively unreasonable, or 13 that 14 national origin. 15 requested that a few Thai workers cease picking apples because those 16 Thai workers were damaging fruit, there is no evidence to support a 17 finding that any Thai Claimants were asked to cease working because 18 they were working too slowly, i.e., failing to meet a production 19 quota, or because of the Thai Claimants’ race or national origin. the the Most 20 Thai Claimants production of complain quotas were were based on the there Claimants’ is race no or Although the evidence shows that a Grower Defendant the unpleasant conditions that the Thai Claimants 21 complain about pertain to housing and transportation matters. As the 22 Court Grower 23 Defendants’ control, and the evidence produced at summary judgment 24 does not cause the Court to deviate from its prior ruling. 25 does produce evidence that one of the houses was owned by Valley 26 Fruit. previously ruled, these are not matters within the The EEOC However, there is no evidence submitted that this particular ORDER - 21 1 house was in such a condition that the Thai Claimants who lived there 2 believed that the claimed unwelcome living conditions were provided 3 because of their race or national origin. 4 evidence 5 Valley Fruit’s “standard operating procedure,” rather than an isolated 6 incident. that claimed deplorable condition of this house no was Int’l Bhd. of Teamsters, 431 U.S. at 336. Assuming 7 the Further, there is arguendo names, the Global there is no supervisors evidence that called the Thai 8 Claimants 9 Defendants were aware of the use of derogatory names or that they 10 derogatory that Grower should have been aware of such use. The EEOC also points to general statements made by the Thai 11 12 Claimants 13 better trees and they did not have to move ladders. 14 Claimants’ statements on these points are too generalized to establish 15 a 16 treatment of the Hispanic-descent workers was so different than the 17 Grower Defendants’ treatment of the Thai Claimants and whether any 18 purported 19 national origin, rather than legitimate work-related reasons, such as 20 the orchard-related experience of the Hispanic-descent workers or that 21 they used personal vehicles. 22 F.3d 1090, 1095 (9th Cir. 2005) (“[W]hen the plaintiff relies on 23 circumstantial 24 substantial’ to defeat the employer’s motion for summary judgment.”). triable that the dispute Hispanic-descent of difference fact in evidence, as working to workers whether were the conditions was able to work on However, the Thai Grower based Defendants’ on race or See Coghlan v. Am. Seafoods Co. LLC, 413 that evidence must be ‘specific and 25 Finally, although the Grower Defendants knew and should have 26 known that the State of Washington had cited Global for violating ORDER - 22 1 state 2 requirements, and farm labor licensing, there is no evidence that the 3 State’s citations were based on the Thai Claimants’ race or national 4 origin or that the Grower Defendants knew or should have known that 5 Global’s citations were based on the Thai Claimants’ race or national 6 origin. 7 regulations pertaining to wage laws, safety and health In summary, the EEOC fails to put forward sufficient evidence to 8 establish 9 Defendants had a standard operating procedure of creating a hostile 10 work environment based on the Thai Claimants’ race or national origin, 11 or permitting Global to create a hostile work environment at the 12 orchards for 13 origin. Title VII is not aimed at eliminating all unpleasant, rude, 14 and uncomfortable conduct in the workplace, rather its aim is to 15 prevent discrimination in the workplace based on a listed protected 16 status. 17 Cir. 1999). 18 most favorable to the EEOC, the Court grants the Grower Defendants’ 19 motion for summary judgment on the pattern-and-practice hostile-work- 20 environment claim. triable the dispute Thai of Claimants fact based as on to whether their race the or Grower national See Mendoza v. Borden, Inc., 195 F.3d 1238, 1253-54 (11th Accordingly, even when viewing the evidence in the light c. 21 22 a The Constructive Discharge Grower Defendants also ask the Court to enter summary 23 judgment in their favor on the EEOC’s constructive-discharge claims 24 because the 25 26 ORDER - 23 EEOC fails to present evidence to support a genuine of material fact as these the EEOC To prove to a its dispute 2 constructive-discharge 3 standard” than a hostile-work-environment claim; the EEOC must prove 4 that conditions were so intolerable that a reasonable person must 5 leave the job. 6 (9th Cir. 2007). 7 become 8 normal motivation of a competent, diligent, and reasonable employee to 9 remain on the job to earn a livelihood and to serve his or her claims, to claims.5 1 is subject “higher See Wallace v. City of San Diego, 479 F.3d 616, 634 Working conditions are so intolerable when they “sufficiently extraordinary and egregious to overcome the 10 employer.” Brooks v. City of San Mateo, 229 F.3d 917, 930 (9th Cir. 11 2000) (citation omitted). 12 taking the evidence in the light most favorable to the EEOC, the 13 evidence simply fails to establish a triable dispute of fact that the 14 working conditions experienced by the Thai Claimants at the Grower 15 Defendants’ orchards were so intolerable that a reasonable person 16 would have felt compelled to leave. 17 summary 18 practice constructive-discharge claims. judgment d. 19 on the For the reasons set forth above, even when EEOC’s The Grower Defendants are granted individual-based and pattern-and- Retaliation Claim (Green Acre only) 20 21 5 22 The Thai Claimants on whose behalf the EEOC can pursue timely 23 constructive-discharge claims are: Chao Amattat, Bunchai Chanaphai, 24 Jare Chuenjaichon, Duangkaew Khongchai, and Marut Kongpia as against 25 Valley 26 Kadthan as against Green Acre. Fruit; ORDER - 24 and Chao Amattat, Choetchai Chumphang, ECF No. 410 Ex. H. and Laphit 1 To prove its retaliation claim against Green Acre, the EEOC must 2 show that a Thai Claimant engaged in a protected activity, and Green 3 Acre 4 action because of the protected activity. 5 427 F.3d 1177 (9th Cir. 2005). 6 case then the burden of production shifts to Green Acre to present 7 legitimate reasons for the adverse employment action. 8 F.3d at 928. 9 demonstrate a genuine issue of material fact as to whether the reason 10 subjected that particular Claimant to an adverse employment See Hardage v. CBS Broad., If the EEOC establishes a prima facie See Brooks, 229 If Green Acre meets this burden, then the EEOC must advanced by the employer was a pretext. See id. 11 The EEOC contends Green Acre engaged in a pattern or practice of 12 retaliation because Green Acre failed to routinely take action on the 13 Thai 14 including unpaid wages and poor living conditions. 15 fails to show that there is a Thai Claimant on whose behalf the EEOC 16 can timely bring this claim, let alone that Green Acre had a pattern 17 and practice of retaliating against Thai Claimants who engaged in a 18 protected activity. 19 Claimants’ complaints of bad working and living conditions, However, the EEOC The Court earlier ruled that the First Amended Complaint only 20 alleges a retaliation claim against Green Acre. 21 Discovery responses evince that a retaliation claim is only brought on 22 behalf of Supap Promson. 23 However, Mr. Promson is not a timely Claimant given that the EEOC 24 25 26 ORDER - 25 ECF No. 178 at 12. Monahan Decl., ECF No. 409 ¶ 35, n.1. provided 2 Accordingly, the EEOC failed to show that it has a Claimant on whose 3 behalf it can assert either an individual claim of retaliation or a 4 claim 5 Claimants by Green Acre. 6 summary judgment as to the EEOC’s Title VII retaliation claim. of only a 2004 dates for Mr. pattern-and-practice Promson’s of work retaliation at Green Acre.6 1 against the Thai Therefore, the Grower Defendants are granted 7 Assuming arguendo the retaliation claim pursued by the EEOC on 8 Mr. Promson’s behalf was timely, the Court finds that any retaliation 9 claim by the EEOC on Mr. Promson’s behalf fails to be supported by a 10 triable issue of fact. 11 Promson regarding engaging in a protected activity is that Mr. Promson 12 complained about living conditions and debt incurred in coming to the 13 United States to work to “Vichai,” who was a Global supervisor. 14 Promson expected Mr. Vichai to report his complaints to Mr. Morford, 15 Green 16 incurred debt are not matters over which Mr. Morford had control.7 Acre’s owner. The information provided by the EEOC as to Mr. The Thai Claimants’ living conditions Mr. and 17 6 Mr. Promson worked at a Valley Fruit orchard in 2005, not Green 7 20 The Court rules, consistent with joint-employer liability, that 21 an employer business (“business”) can be liable for a joint employer’s 22 retaliatory conduct if the business fails to take steps to prevent or 23 mitigate the joint employer’s retaliatory conduct that was reasonably 24 foreseeable by the business and in an area in which the business had 25 control and the ability to take corrective steps. 26 Sodexo, Inc., 539 Fed. Appx. 942, 945 (11th Cir. 2013) (involving a 18 19 Acre. ORDER - 26 See Wigfall v. 1 And there is no evidence that Vichai relayed Mr. Promson’s complaints 2 to Mr. Morford, or, assuming arguendo, that Vichai did relay Mr. 3 Promson’s 4 against Mr. Promson after receiving this information. 5 the Court grants Green Acre summary judgment on the retaliation claim. 6 See Marinello v. Cal. Dep’t of Corr. & Rehab, 430 Fed. Appx. 583 (9th 7 Cir. 2011) (“The district court properly granted summary judgment 8 because Marinello failed to raise a genuine issue of material fact as 9 to whether he engaged in protected activity.”). complaints to Mr. Morford, that Mr. Morford retaliated Accordingly, 10 3. 11 The Grower Defendants argue that the EEOC cannot prove that it 12 satisfied its Title VII pre-lawsuit requirements, specifically arguing 13 that the EEOC 1) did not investigate the specific allegations of most 14 of the Thai Claimants before identifying them in this lawsuit, 2) did 15 not 16 Claimants’ claims or attempt to conciliate their claims before filing 17 suit, and 3) failed to conciliate in good faith. 18 Grower Defendants’ summary-judgment arguments, and also filed its own 19 summary-judgment 20 Defendants’ First Affirmative Defense: “Plaintiff’s claims are barred 21 by its failure to . . . conduct a[n] . . . investigation . . . , and 22 by its failure to conciliate in good faith.” make Investigation and Conciliation Pre-Lawsuit Requirements a reasonable-cause motion determination asking the Court as to to any of the Thai The EEOC opposes the dismiss the Grower 23 24 joint-employer based Title VII retaliation claim); Alford v. Martin & 25 Gass, Inc., 391 Fed. Appx. 296, 304-05 (4th Cir. 2010). 26 ORDER - 27 The first question the Court must resolve is whether the Court 1 2 may 3 requirements. 4 Denying the Grower Defendants’ Motion to Dismiss: 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 review the EEOC’s compliance with its Title VII pre-lawsuit The Court previously ruled in an April 12, 2013 Order [T]he Court determines the Supreme Court has overturned the Ninth Circuit’s holding in Pierce Packing that § 2000e-5’s pre-lawsuit requirements are jurisdictional requirements, and other Ninth Circuit cases so holding. Section 2000e-5(f)(3), the subsection granting subject-matter jurisdiction, does not limit a federal court’s jurisdiction to only those claims for which all pre-lawsuit requirements are met. Rather, § 2000e-5(f)(3) broadly grants a federal court jurisdiction to hear “actions brought under this subchapter.” That the subchapter requires the EEOC to notify the respondent, investigate the alleged unlawful employment practice, make a reasonable-cause determination, and meaningfully conciliate the matter prior to bringing a lawsuit does not vitiate a federal court’s subject-matter jurisdiction to hear lawsuits brought by the EEOC under § 2000e-5. Rather, these pre-lawsuit requirements are elements that must be proven by the EEOC in order to show that it and the individuals on whose behalf it seeks relief are entitled to relief. Although these statutory pre-lawsuit requirements are not subject-matter-jurisdiction requirements, it is clear that Congress intended the EEOC to satisfy these requirements before filing suit, and therefore a failure to satisfy these requirements will result in the EEOC’s lawsuit being dismissed for failure to state a claim upon which relief can be granted under Rule 12(b)(6) or entry of summary judgment against the EEOC under Rule 56. Additionally, a failure by the EEOC to satisfy its statutory notice, investigation, reasonable-cause determination, and conciliation requirements exposes the EEOC to an award of reasonable attorney’s fees and costs against it. Under § 2000e-5(k), “the court, in its discretion, may allow the prevailing party . . . a reasonable attorney’s fee (including expert fees) as part of the costs, and the [EEOC] and the United States shall be liable for costs the same as a private person.” Given the potential risk of paying a defendant’s attorney’s fees and costs, the EEOC must carefully ensure that it has satisfied its statutory pre-lawsuit requirements before filing a lawsuit in federal court. However, the EEOC’s failure to satisfy its pre-lawsuit requirements does not restrict the 26 ORDER - 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 federal court’s subject-matter jurisdiction over the filed Title VII lawsuit. Accordingly, it is immaterial for purposes of the Grower Defendants’ motion to dismiss under Rule 12(h)(3) whether the EEOC satisfied its investigation and conciliation requirements as to either the pre-October 2012-disclosed Claimants or post-October 2012-disclosed Claimants. Therefore, it is not appropriate at this time for the Court to assess the EEOC’s pre-lawsuit conduct. However, the Court briefly addresses the EEOC’s argument that a court may not inquire into the sufficiency of the EEOC’s pre-lawsuit activities. Relying on EEOC v. KECO Industries, Inc., 748 F.2d 1097 (6th Cir. 1984), the EEOC argues that its pre-lawsuit activities are administrative matters for which the Court must grant the EEOC deference and therefore may not scrutinize. In KECO Industries, the Sixth Circuit held that it “was error for the district court to inquire into the sufficiency of the Commission’s investigation.” Id. at 1100. However, this holding must be read in the context of the issues before the Sixth Circuit. The Sixth Circuit was addressing whether the district court appropriately examined the sufficiency of the evidence underlying the EEOC’s finding of discrimination. This is a different question than would be before the Court in either a motion to dismiss for failure to satisfy the pre-lawsuit requirements or a summaryjudgment motion contending that the EEOC cannot establish a triable issue of fact as to the satisfaction of the prelawsuit requirements. Such motions would not require the Court to second-guess the EEOC’s determination that discrimination took place. 17 ECF No. 333 (internal citations omitted). 18 Order, the Seventh Circuit analyzed whether the EEOC’s pre-lawsuit 19 conciliation efforts are judicially reviewable prior to a Title VII 20 liability determination. 21 Cir. 2013). 22 conciliation 23 because allowing such review would defeat the purpose of Title VII 24 which is to help ensure that an employer’s discriminatory conduct is 25 eliminated quickly and without permitting the employer to “win” the 26 lawsuit based simply on the EEOC’s own procedural failures, and would ORDER - 29 Following entry of this EEOC v. Mach Mining, LLC, 738 F.3d 171 (7th In Mach Mining, the Seventh Circuit ruled that the EEOC’s efforts are not substantively judicially reviewable 1 be inconsistent with Title VII’s confidentiality provisions. 2 Id. at 179. 3 The pertinent Title VII statutory language provides that when a 4 charge is filed by or on behalf of a person claiming to be aggrieved 5 by an “unlawful employment practice”: 6 7 8 9 10 11 12 13 14 15 16 17 the Commission shall serve a notice of the charge (including the date, place and circumstances of the alleged unlawful employment practice) on such employer . . . (hereinafter referred to as the “respondent”) within ten days, and shall make an investigation thereof. Charges shall be in writing under oath or affirmation and shall contain such information and be in such form as the Commission requires. Charges shall not be made public by the Commission. . . . If the Commission determines after such investigation that there is reasonable cause to believe that the charge is true, the Commission shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion. Nothing said or done during and as a part of such informal endeavors may be made public by the Commission, its officers or employees, or used as evidence in a subsequent proceeding without the written consent of the persons concerned. . . . The Commission shall make its determination on reasonable cause as promptly as possible and, so far as practicable, not later than one hundred and twenty days from the filing of the charge or, where applicable under subsection (c) or (d) of this section, from the date upon which the Commission is authorized to take action with respect to the charge. 18 19 42 U.S.C. § 2000e-5(b). 20 EEOC must 1) serve the employer with a notice of the charge, including 21 the date, place, and circumstances of the alleged unlawful employment 22 practice; 2) investigate the alleged unlawful employment practice; 3) 23 determine 24 unlawful employment 25 alleged unlawful 26 conference, ORDER - 30 that there is Accordingly, pursuant to § 2000e-5(b), the reasonable practice employment conciliation, and cause occurred; and practice by persuasion. to believe 4) eliminate informal Id. the § charged any methods 2000e-5(b). such of If 1 within the specified time period, the EEOC “has been unable to secure 2 from the respondent a conciliation agreement acceptable to the [EEOC], 3 the [EEOC] may bring a civil action against any respondent . . . named 4 in the charge.” Id. § 2000e-5(f)(1). The Ninth Circuit has not analyzed whether Title VII’s pre- 5 6 lawsuit requirements 7 reviewing 8 defendant in a Title VII lawsuit, the Ninth Circuit has assessed the 9 EEOC’s pre-lawsuit efforts. an award are of judicially attorney’s reviewable; fees and costs however, to a when prevailing EEOC v. Pierce Packing Co., 669 F.2d 605, 10 609 (9th Cir. 1982). 11 EEOC’s pre-lawsuit conciliation efforts. 12 Inc., 409 F.3d 831, 832-33 (7th Cir. 2005) (permitting judicial review 13 for a minimal level of good faith by EEOC); EEOC v. KECO Indus., Inc., 14 748 F.2d 1097, 1100 (6th Cir. 1984) (permitting judicial review for a 15 minimal level of good faith by EEOC); EEOC v. E.I. DuPont de Nemours & 16 Co., 373 F. Supp. 1321, 1338 (D. Del. 1974) (permitting judicial 17 review for a minimal level of good faith by EEOC); see also EEOC v. 18 Asplundh 19 searching three-part test); EEOC v. Johnson & Higgins, Inc., 91 F.3d 20 1529, 21 Marshall v. Sun Oil, 605 F.2d 1331, 1335 (5th Cir. 1979) (applying 22 searching 23 recognized in Mach Mining, these courts have assumed judicial review 24 of 25 whether such judicial review is statutorily appropriate. the Tree, 1534 (2d ORDER - 31 Cir. three-part EEOC’s 26 340 Most Circuits have reviewed to some extent the F.3d 1256, 1996) test). conciliation 1259 (applying (11th Cir. searching However, efforts See EEOC v. Caterpillar, as without the 2003) (applying three-part Seventh specifically test); Circuit analyzing 1 The Court is persuaded in large measure by the Seventh Circuit’s 2 rationale and ruling that a court may not review the substance of the 3 EEOC’s 4 ensuring that the EEOC alleges in the complaint compliance with its 5 conciliation requirement. 6 Circuit did not comment on whether a court may review the EEOC’s pre- 7 lawsuit 8 successfully defended the Title VII claims. 9 5(k) (attorney’s fee provision); Christianburg Garment Co. v. EEOC, 10 434 U.S. 412, 421 (1978) (ruling that one of the bases for an award of 11 attorney’s fees and costs to a prevailing employer under § 2000e-5(k) 12 is that the EEOC’s action was “frivolous, unreasonable, or without 13 foundation, even though not brought in subjective bad faith.”). 14 Court need not yet answer the question of whether a court may review 15 the EEOC’s pre-lawsuit conciliation efforts when ascertaining whether 16 attorney’s fees 17 defendant. Instead the Court limits its ruling to the matters now 18 before it: 1) whether the Grower Defendants are entitled to summary 19 judgment 20 investigation, reasonable cause, and conciliation responsibilities, 21 and 2) whether the Court should dismiss the Grower Defendants’ first 22 affirmative defense (failure to satisfy pre-lawsuit responsibilities). 23 Pursuant to the language and purpose of Title VII, as discussed 24 by the Seventh Circuit in Mach Mining, the Court modifies its April 25 2013 26 determination in a Title VII lawsuit, a court’s review of the EEOC’s pre-lawsuit conciliation because ruling, ORDER - 32 conciliation ECF the No. but rather is limited to However, the Court notes that the Seventh efforts should efforts be EEOC 303, after the awarded failed and to to rules employer defendant has See 42 U.S.C. § 2000e- the prevailing satisfy that prior its to The employer pre-lawsuit a liability 1 pre-lawsuit conciliation efforts are limited to reviewing the EEOC’s 2 complaint to ensure that it plead that it satisfied this pre-lawsuit 3 statutory requirement. 4 with the Title VII conciliation requirement, the Court must accept 5 this alleged fact as true. 6 defense 7 satisfaction of its claimed pre-lawsuit conciliation requirement. 8 Mach Mining, LLC, 738 F.3d at 179 (“Congress’s purpose is not served 9 well by litigating the parties’ informal endeavors at ‘conference, 10 conciliation, and persuasion.’ Simply put, the conciliation defense 11 tempts employers to turn what was meant to be an informal negotiation 12 into the subject of endless disputes over whether the EEOC did enough 13 before going to court. Such disputes impose significant costs on both 14 sides, as well as on the court, and to what end?”). 15 First Amended Complaint, ECF No. 141 ¶¶ 26-28, the Court finds it 16 adequately 17 conciliation requirement. for an If the EEOC’s complaint alleges compliance employer alleges Title VII’s framework does not establish a to substantively compliance with challenge Title the EEOC’s See Turning to the VII’s pre-lawsuit 18 Mach Mining does not address the issue of whether a court may 19 judicially review the EEOC’s pre-lawsuit investigation and reasonable- 20 cause determinations. 21 Grower Defendants are entitled to summary judgment on the merits of 22 the Title VII claim, the Court need not reach this issue at this time. 23 In summary, the Court 1) grants the EEOC’s motion as it relates 24 to the Grower Defendants’ affirmative defense that the EEOC failed to 25 comply with its pre-lawsuit conciliation requirement, and denies as 26 moot the remainder of the motion regarding the EEOC’s pre-lawsuit ORDER - 33 And given that the Court has ruled that the 1 investigation and reasonable-cause determinations, and 2) denies in 2 part (conciliation) and denies as moot in part (investigation and 3 reasonable-cause 4 judgment motion as it pertains to the EEOC’s Title VII pre-lawsuit 5 responsibilities. 6 D. 7 determinations) the Grower Defendants’ summary- Conclusion Although the Court grants in part the EEOC’s summary-judgment 8 motion 9 (conciliation) and finds a genuine dispute of material fact as to 10 whether the Grower Defendants jointly employed the Thai Claimants as 11 to orchard-related matters with Global, the Court grants the Grower 12 Defendants summary judgment on all of the EEOC’s Title VII claims 13 against them. 14 against Global. 15 judgment motions,8 ECF Nos. 541 & 569, against each other which are 16 set to be heard this summer, and in light of the pending Ninth Circuit 17 appeal regarding a discovery matter, the Court finds it necessary to 18 strike the September 15, 2014 trial date, and associated dates and 19 deadlines, 20 deadlines, will be reset following the Court’s ruling on the EEOC’s 21 and Global’s summary-judgment motions. 22 on the at Grower Defendants’ first affirmative defense For this reason, the trial will now proceed only Because the EEOC and Global have pending summary- this time. Trial, and any remaining dates and Accordingly, IT IS HEREBY ORDERED: 23 24 8 25 26 Global’s motion is currently subject to a motion to strike by the EEOC for being untimely filed. ORDER - 34 ECF No. 572. 1 1. Grower Defendants’ Motion for Summary Judgment, ECF No. 2 408, is GRANTED IN PART (no Title VII liability), DENIED IN 3 PART 4 employer, and 5 requirement is 6 and 7 investigation 8 requirements). 9 2. (genuine DENIED disputes of Title not AS material VII pre-lawsuit substantively MOOT IN and fact PART judicially (Title VII reasonable-cause as to joint conciliation reviewable), pre-lawsuit determination The EEOC’s Amended Motion for Partial Summary Judgment on 10 the 11 (Conditions Precedent), ECF No. 517, is GRANTED IN PART 12 (conciliation) and DENIED AS MOOT IN PART (investigation). 13 3. The Grower EEOC’s Defendants’ Motion for First Affirmative Summary Judgment on Defense Grower 14 Defendants’ Laches Affirmative Defense, ECF No. 559, the 15 Grower 16 Testimony of the EEOC’s “Expert” Florence Burke, ECF No. 17 562, 18 Court’s Order Granting in Part the Grower Defendants’ Joint 19 Motion to Exclude EEOC’s Expert Report and Opinions from 20 Michael A. Robbins Based on Relevance, ECF No. 568, are 21 DENIED AS MOOT. 22 4. Defendants’ and the EEOC’s Motion Motion to Exclude for the Report Reconsideration of and this The remaining dates and deadlines in the Second Amended 23 Scheduling Order, ECF No. 320, are STRICKEN: to be reset 24 following 25 judgment motions and/or the Ninth Circuit’s ruling on the 26 appealed ORDER - 35 the Court’s ruling on the pending summary- 1 /// 2 /// 3 /// 4 // 5 / 6 discovery issue. 7 this time. 8 9 10 The summary-judgment hearings shall remain as set at IT IS SO ORDERED. The Clerk’s Office is directed to enter this Order and provide copies to counsel. DATED this 28th day of May 2014. 11 s/Edward F. Shea EDWARD F. SHEA Senior United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Q:\EFS\Civil\2011\3045.may.2014.msjs.lc1.docx ORDER - 36
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