Free Reply to Response to Motion - District Court of Arizona - Arizona

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CENTRAL OFFICE FARMWORKER PROGRAM 305 South Second Avenue P.O. Box 21538 Phoenix, Arizona 85036-1538 (602) 258-3434 FAX (602) 258-4628 TDD (602) 254-9852

Pamela M. Bridge, AZ Bar No. 018252, [email protected] Kristina M. Campbell, AZ Bar No. 023139, [email protected] George H. McKay, AZ Bar No. 015910, [email protected] COMMUNITY LEGAL SERVICES 305 South Second Avenue P.O. Box 21538 Phoenix, Arizona 85036-1538 (602) 258-3434, ext. 2650 Attorneys for Plaintiffs IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA ) ) ) ) ) ) Plaintiffs, ) ) v. ) ) Eagle Produce Limited Partnership, ) Phoenix Agro-Invest, Inc., ) SAM Management, Inc. ) ) Defendants. ) ________________________________) Abel Ruiz Diaz, Ubaldo Moreno, Piedad H. Renteria, Alejandro D. Mancilla, ________________________________

Case No. CIV 03-2127 PHX-MHM

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PLAINTIFFS' REPLY TO DEFENDANTS' OPPOSITION TO PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT

Plaintiffs Abel Ruiz Diaz, Ubaldo Moreno, Piedad H. Renteria and Alejandro D. Mancilla (collectively "Plaintiffs"), by and through counsel, hereby reply to Defendants' Opposition to Plaintiffs' Motion for Partial Summary Judgment. I. Introduction Defendants have failed to present any genuine issues of material fact concerning the joint employment of Defendants. Defendants attempt, without providing evidence as required by the Federal Rule of Civil Procedure 56 (c), to claim that Plaintiffs cannot prove joint employment under the Age Discrimination Act ("ADEA") and the Migrant and Seasonal Agricultural Workers Protection Act ("AWPA"). First, because the standard for joint employment under the ADEA is the same standard set forth under the AWPA, Plaintiffs have demonstrated that Defendants were joint employers under the ADEA and the AWPA. Second, Plaintiffs can recover under the AWPA because the term "agricultural
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employment of a seasonal or temporary nature" applies to all employees who work in agriculture and does not require employees to only work for short terms. 29 U.S.C.§ 1802. Third, Plaintiffs have proven through the "economic realities" test set forth under TorresLopez v. May that Defendants are joint employers. Torres-Lopez, 111 F. 3d 633, 639-641 (9th Cir. 1997). II. All Defendants Are Joint Employers Under The ADEA. Because all of Defendants were joint employers of Plaintiffs' crew at the time of Plaintiffs' termination, they each had at least 20 employees for each working day in each week, for not less than 20 calender weeks in 2002. 29 U.S.C. §630(b). Although this circuit has not specifically stated the standard for joint employment under the ADEA, courts have found that "Title VII, ADEA, ERISA and FLSA as standing in pari passu and endorse(s) the practice of treating judicial precedents interpreting one such statute as instructive in decisions involving another." Serapion v. Martinez, 119 F. 3d 982, 985 (1st Cir. 1997); Hyland v. New Haven Radiology Assocs., P.C., 794 F. 2d 793, 796 (2nd Cir. 1986)(holding that for the FLSA, Title VII, and the ADEA, "cases construing the definitional provisions of one are persuasive authority when interpreting the others"). Courts have frequently used the standard set for joint employment under the FLSA for all discrimination statutes. See Moreau v. Air France, 356 F. 3d 942, 946 (9th Cir. 2004)(using the standard set forth for joint employment in the FLSA and the AWPA cases to define joint employment in FMLA cases); see also Equal Employment Opportunity v. Pacific Maritime Association, 351 F. 3d 1270, 1275 (9th Cir. 2003)(considering the standard set forth for joint employment in the FLSA/AWPA cases to determine the standard in Title VII case). 1
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In Sandoval v. City of Boulder, the court did not use the FLSA standard for considering joint employment in a Title VII case, but states that in order to determine joint employment, courts should consider whether alleged employers exercise significant control over employees and should look at the essential terms of employment. Sandoval v. City of Boulder, 388 F. 3d 1312, 1323-1324. Because the nature and degree of control is a factor reviewed under the FLSA/AWPA standard, Plaintiffs have proven there is no genuine
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The standard for joint employment under the FLSA is the same as under the AWPA. Torres- Lopez, 111 F. 3d at 638. In Plaintiffs' Motion for Partial Summary Judgment, Plaintiffs prove that there are no genuine issues of material facts concerning Defendants' joint employment under the standards set in Torres- Lopez, and therefore, Plaintiffs have proven there are no issues of material fact concerning Defendants' joint employment under the ADEA. Id. As it is undisputed that Plaintiffs' crew had more than 20 employees in 2002, each Defendant is a joint employer under the ADEA. SOF 39. III. Plaintiffs Are Seasonal Workers Under AWPA. Defendants are also erroneous in their argument that because Plaintiffs have asserted that they worked year around, they are not seasonal workers under the AWPA. Congress intended that the statutory phrase "agricultural employment of a seasonal or other temporary nature" be a term of art not limited to short term or itinerant workers. CaroGalvan v. Curtis Richardson, 993 F.2d 1500, 1507 (11th Cir. 1993). In Caro-Galvan, farmworkers harvested ferns year round and yet, the court found that the fern harvesters were seasonal workers under AWPA. Id. The court found, "(B)ecause farm laborers are poor, politically weak, and excluded from the overtime and collective bargaining rights afforded other types of workers, they always are vulnerable to exploitation..." Id. The court found that because of this exploitation, the AWPA is a remedial statute and should be construed broadly to effect its humanitarian purpose. Id. As such, the court found that "it is the nature of the work rather than the duration of employment which controls." Id. at 1508 (citing Opinion Letter No. 1575 (WH-522) [Wage-Hour] Lab. L.Rep. (CCH) Admin. Ruling Tr. Binder 1981-87, ¶ 31,440 at 43, 760 (April 23, 1984)). Therefore, the court found that agricultural workers are seasonal workers under the AWPA. See 29 C.F.R. § 500.20(s)(4). Because Plaintiffs are agricultural workers, they are seasonal workers under the AWPA. SOF 37 . The case at bar is distinguished from Ramirez v. DeCoster, in which the court

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issue of material fact concerning the joint employment of Defendants even under the Sandoval Title VII standard. Id.
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found that year round workers in an egg processing facility were not protected under the AWPA. Ramirez v. DeCoster, 194 F.R.D. 348 (D. Maine 2000). In Ramirez, the court found that the workers were not seasonal workers under the AWPA because their work involved animal, not plant commodities, and did not take place in the field. Id. at 356-358. In the case at bar, because it is undisputed that Plaintiffs were preparing the land to be harvested for rotating crops, they qualify as seasonal workers under the AWPA. SOF 37. IV. Defendants Are Joint Employers Under The AWPA. Defendants have failed to present any genuine issue of material fact concerning the joint employment of Defendants. Defendants are so fundamentally intertwined that even Steven Martori does not know the difference between his roles with each company when he supervised Jimmy Byrd. SOF 27. For reasons unknown to Plaintiffs, Steven Martori and his family created Defendants, three separate companies, and yet Steven Martori still controls all three Defendants. SOF 54. However, the intent of the companies is irrelevant, and this circuit has clearly expressed in Torres- Lopez that only the economic realities of e companies is important in determining joint employment. Torres-Lopez, 111 F. 3d at 641; Haywood v. Barnes, 109 F.R.D. 568,585 (E.D.N.C. 1986). Even if Defendants restructured in July 2002, it is unimportant for the economic reality of Defendants in early 2002, the time the Plaintiffs were terminated, proves joint employment. A. Defendants Had The Power To Control Plaintiffs Directly And Indirectly. Defendants argue that Plaintiffs have not met their burden of demonstrating control, yet Defendants fail to advance any evidence of their own of their lack of control over Plaintiffs. Further, Defendants fail to provide any legal argument that Plaintiffs' proof of joint employment does not meet the standard set by Torres-Lopez. Torres-Lopez, 111 F. 3d at 639-640. As such, Defendants' specious argument concerning control lacks legal authority and evidence as required by Rule 56(c) of the Federal Rules of Civil Procedure. Oppositely, the undisputed evidence demonstrates that Defendants had the power to control Plaintiffs directly and indirectly. First, because Steve Martori performed his functions of supervising Mr. Byrd
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without any distinction between Defendants (SOF 27), Defendants had direct control over Plaintiffs to fire, hire and modify employment terms. It is the alleged policy of Defendants that all employees of Eagle Produce could have appealed the decision to Jimmy Byrd and then to Steve Martori. SOF 40. Additionally, any employee who disagreed with a write up could appeal the decision to Steve Martori. SOF 41. Mr. Martori has communicated with numerous employees who did not report to him directly and employees have appealed warnings to Mr. Martori. SOF 42. As such, Mr. Martori, in his combined roles for all Defendants, ultimately had the final authority to fire, re-hire and discipline Plaintiffs. This "right to control, not necessarily the actual exercise of that control" is the important factor in the analysis proving Defendants' joint employment. Haywood v. Barnes, 109 F.R.D. 568, 589 (E.D.N.C. 1986). Further, Defendants seem to ignore Mr. Martori's undisputed testimony that "SAM Management does the day to day operations of Eagle Produce" and "oversee(s) the day- to- day operations of the farming activities" (SOF 31), which clearly demonstrate direct control over Plaintiffs. Second, because Steven Martori supervised Jimmy Byrd, Defendants had indirect control over Plaintiffs. The Torres-Lopez court emphasized that indirect control as well as direct control can be proof of a joint employment relationship. Torres-Lopez, 111 F. 3d at 643 (citing 29 C.F.R. Section §500.20.(h)(4)(ii)). Defendants are incorrect that there are not any specific facts that Mr. Martori did anything in his supervision of Jimmy Byrd that affected Plaintiffs' work or conditions. Defendants' argument ignores the multitude of undisputed evidence concerning Mr. Martori's supervision of Jimmy Byrd. Mr. Martori closely supervised Mr. Byrd by meeting with him at least five times per week. SOF 43. Mr. Martori told Mr. Byrd what he wanted done on the farm (SOF 44); gave Mr. Byrd instructions and guidance about how to perform duties (SOF 45); discussed planting and proper schedules (SOF 46); discussed the duties and procedures of the farm (SOF 47); discussed policies of the farm (SOF 22); discussed crop schedule (SOF 22, 28 and 46); discussed how much to plant (SOF 28); discussed efficiency of production (SOF 48); discussed which crops were profitable (SOF 49); and discussed the need to cut costs. SOF
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50. Since Mr. Byrd supervised Owen Brandt, the immediate supervisor of Plaintiffs, all of Mr. Martori's orders to Mr. Byrd affected Plaintiffs. SOF 51. Because of his orders to Mr. Byrd, Mr. Martori, acting on behalf of all of Defendants, was responsible for what work the Plaintiffs completed, when the work would be done, the policies and procedures for completing the work, how the work would be done, how much work was needed and as such, the amount of tractor drivers needed. Defendants have failed to present any evidence from the record to suggest that Mr. Martori did not have direct or indirect control of Plaintiffs. Therefore, Plaintiffs have met their burden of proving that there is no genuine issue of material facts that Defendants had the power to control Plaintiffs directly or indirectly. B. Defendants Had The Power To Indirectly Control Pay Rates. This factor is the only factor in which Defendants have presented any facts in support of their argument. However, although Owen Brandt was directly responsible for the pay rates of Plaintiffs with the approval of Jimmy Byrd and Defendant SAM did not exercise direct control of the pay, all Defendants had indirect control over pay rates. Because Mr. Martori supervised Jimmy Byrd, Defendants had the power to have indirect control over the pay rates of Plaintiffs. Defendants erroneously state that it is unimportant whether Defendant SAM had the authority or not to determine pay rates. The factor to be examined is the degree to which the putative employer has the "[p]ower to determine the pay rates or the methods of payments of the workers." 29 C.F.R. § 500.20(h)(4)(ii)(C)(emphasis added). It is undisputed that Jimmy Byrd had to approve any pay raises of Plaintiffs and Jimmy Byrd testified that he would have been responsible for lay offs. SOF 52. Further, Defendants determined the amount Plaintiffs received because Mr. Martori determined how much work would be done (SOF 28), when the work would be done (SOF 46) and the need to cut costs. SOF 50. In Torres-Lopez, the court found a joint employment relationship existed where the farmer was not involved in preparing the farmworkers' payroll or directly paying their wages. Id. at 633. However, as in this case, the economic reality of the relationship was that the joint employers in question "controlled
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the purse strings" and ultimately, indirectly controlled the amount of pay Plaintiffs received. Id. at 641. C. The Non-Regulatory Factors also Prove Defendants' Joint Employment. Again, the Defendants have failed to present any material facts to dispute Plaintiffs' argument that the non-regulatory factors demonstrate joint employment. Defendants also fail to present any legal authority that the evidence presented by Plaintiffs fails to meet the standard set by Torres-Lopez. Id. at 639-640. Additionally, Defendants' Response fails to oppose Plaintiffs' argument concerning several of the non-regulatory factors such as whether the work was "piecework" and whether Plaintiffs had an opportunity for profit or loss depending upon their managerial skills. Id. 1. Plaintiffs' job was an integral part of Defendants' business. Plaintiffs' job of driving the tractors was clearly "one small step in the sequence of steps..." in Defendants' enterprise. Id. at 643. Plaintiffs drove tractors to prepare crops (SOF 33), which were ultimately sold by Defendant Phoenix Agro. SOF 6. Defendants argue that the impact of Plaintiffs' work on Defendants is unknown. Yet, without the work by Plaintiffs, there would not be crops to harvest and sell. Plaintiffs' impact on Defendants' enterprise is the same impact that harvesters had on the employers' enterprises in other cases in which courts have found joint employment. In Antenor v. D&S Farms, bean pickers attempted to show that a company which packed and sold the beans was a joint employer. Antenor, 88 F. 3d 925, 937 (11th Cir. 1996). The court found joint employment because picking the beans was integral to the process of packing the beans to be sold. Id. In Torres-Lopez, the court found joint employment where the workers harvested cucumbers to be sold to a cannery. Torres-Lopez 111 F. 3d at 643. The impact of the harvesters' work on the employer in Torres-Lopez is similar to the impact of Plaintiffs' work on Defendants. "Unless the cucumbers were picked and sent to the cannery, (the employer) would not realize any of the economic benefits of its substantial investment. Id. at 644. Similarly, Plaintiffs drove tractors to prepare the land owned by Defendants for planting and harvesting the crops. SOF 33. The process of harvesting the
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crops was overseen by Steven Martori on behalf of Defendants and then sold by Defendant Phoenix Agro. SOF 6. As such, Plaintiffs have established that there is not a genuine issue of material fact concerning Plaintiffs' role as an integral part of Defendants' business. 2. Defendants' premises were used for Plaintiffs' work. Defendants incorrectly state that it is unknown whether Plaintiffs used Defendant Phoenix Agro's assets and land. John Redmond testified that Plaintiffs worked on land owned or leased by Defendant Phoenix Agro (SOF 53) and this fact is undisputed. Further, Plaintiffs' files and payroll were handled in an office jointly used by Defendants Eagle Produce and SAM. Other courts have found when the work is completed on land owned or leased by the putative employer, joint employment is present. See Torres v.Lopez, Id. at 643-644. In Antenor, the court found that the fact that the work took place on the putative employer's leased land demonstrates joint employment, "because a business that owns or controls the worksite will likely be able to prevent labor law violations, even if it delegates hiring and supervisory responsibilities..." Antenor, 88 F. 3d at 936-937. As Defendants have failed to present any genuine issues of material fact concerning Plaintiffs' use of Defendants' land, Plaintiffs have demonstrated that this factor shows joint employment. 3. There was permanence in the working relationship between Plaintiffs and Defendants. Defendants misstate the analysis in determining permanence. Although Defendants seem to suggest that Plaintiffs were more dependant upon Defendant Eagle Produce than the other Defendants, "[t]he issue is not whether a farmworker is more dependant.." on a particular employer... the inquiry must focus on the economic reality of the particular relationship between the farmworker and the alleged joint employer." Torres-Lopez, 111 F. 3d at 641. Contrary to Defendants' assertions, the analysis concerning permanence depends upon the amount of time the workers were hired for the employer. Id. at 644. Since Plaintiffs were employed by Defendants year round, the permanence in this case demonstrates joint employment. SOF 37. ...
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CENTRAL OFFICE FARMWORKER PROGRAM 305 South Second Avenue P.O. Box 21538 Phoenix, Arizona 85036-1538 (602) 258-3434 FAX (602) 258-4628 TDD (602) 254-9852

IV. Conclusion For the reasons set forth above and in Plaintiffs' Memorandum of Authorities in Support of Their Motion for Partial Summary Judgment, Plaintiffs have proven there are no genuine issues of material fact concerning this matter. Therefore, Plaintiffs request that this Court find that all Defendants were joint employers of Plaintiffs and grant Plaintiffs' Motion for Partial Summary Judgment. Respectfully submitted this 19th day of September, 2005. By: s/Pamela Bridge_____________ Pamela M. Bridge COMMUNITY LEGAL SERVICES Attorney for Plaintiffs

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I hereby certify that on September 19, 2005, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a notice of a Notice of Electronic Filing to the following CM/ECF registrants: J.Mark Ogden J. Greg Coulter Brandon A. Newton Littler Mendelson 2425 East Camelback Road, Suite 900 Phoenix, Arizona 85016 By: s/Laura E. Smith

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