Free Response in Opposition 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

Kristina M. Campbell, AZ Bar No. 023139, [email protected] Pamela M. Bridge, AZ Bar No. 018252, [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. 2530 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, ________________________________

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Case No. CIV 03-2127 PHX-MHM

COMMUNITY LEGAL SERVICES

PLAINTIFFS' STATEMENT OF GENUINE ISSUES IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

Plaintiffs Abel Ruiz Diaz, Ubaldo Moreno, Piedad H. Renteria, Alejandro D. Mancilla (hereinafter collectively "Plaintiffs"), by and through its undersigned counsel, hereby submits their Statement of Genuine Issues in Opposition to Motion for Summary Judgment pursuant to L.R.Civ. 56(1)(a). Plaintiffs agree that the following facts presented in Defendants' Statement of Facts are undisputed: 1, 16, 31, 32, 34, 39, 40, 42, 50 and 60. Plaintiffs denies all other facts presented in Defendants' Statement of Facts are undisputed. Plaintiffs also contend that the following other material facts are in dispute: 1. Defendants Eagle Produce, Phoenix Agro-Invest, and SAM Management (hereinafter collectively as "Defendants") employed the Plaintiffs. Plaintiffs' Fourth Amended Complaint attached as Exhibit A at ¶ 1.
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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

2.

Plaintiffs worked as tractor drivers for Defendants in Crew 94. Defendants

Responses to Plaintiffs' First Set of Interrogatories to Defendant Eagle Produce Limited Partnership attached as Exhibit B at pg 2. 3. The tractor operators in Crew 94 worked year-round in 2002 rather than seasonally. Excerpts from Deposition of Owen Brandt attached as Exhibit C at Tr. pg. 25, ll. 2-10; pg. 132, ll. 21-25; pg. 133, ll. 2-23. 4. The Plaintiffs' function as tractor drivers was to prepare land owned by Defendants prior to the planting and harvesting of crops. Excerpts of Deposition of Jimmy Byrd attached as Exhibit D at Tr. pg. 47, ll. 4-11. 5. pg. 47, ll. 4-11. 6. The work for Crew 94 did not vary from driving the tractor except for fixing equipment one or two days per year. Excerpts from Deposition of Piedad Renteria attached as Exhibit E at Tr. pg. 43 ll. 2-11. 7. Plaintiff Piedad Renteria and three other tractor drivers in Crew 94 also regularly planted crops. On occasion, other employees of Crew 94 planted crops. Piedad Renteria affidavit attached as Exhibit F. 8. There was no special training for employees to learn how to plant crops. An employee who knew how to plant would briefly demonstrate how to plant the crops. It takes no longer than one to two hours to teach another employee how to plant. Exhibit F. 9. Before December 2001, William Daffern was the tractor foreman and the immediate supervisor of Plaintiffs. Excerpts from William Daffern attached as Exhibit G at Tr. pg. 17, ll. 8-12. 10. 9-18. 11. The individuals responsible for the oversight of the work performed by the Daffern was terminated because he was old. Exhibit G at Tr. pg. 94, ll. Plaintiffs' work involved driving the tractors in order to prepare the land to be harvested for the rotating crops to be planted throughout the year. See Exhibit D, Tr.

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28 Plaintiffs in 2002 - tractor foreman Owen Brandt and farm manager Jimmy Byrd - were

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1 employed by Defendants in 2002. Excerpts from Deposition of John Redmond attached as 2 Exhibit H at Tr. pg. 26, ll. 1-25. 3

12.

Before 2002, Defendants never laid workers off from Crew 94. Instead, if

4 there was less work for Crew 94, Defendants would transfer workers to other crews or 5 reduce hours. Exhibit G at Tr. pg. 62, ll. 7-9; Tr. pg. 83, ll. 14-24. 6

13. 14.

Defendants always have openings for tractor drivers in the harvest. Defendants have a policy for laying off workers that is defined in their

7 Exhibit G at Tr. pg. 62, ll. 15-18. 8

9 Handbook entitled Eagle Produce LP Company Handbook. Handbook attached as Exhibit I 10 at pg. 14.
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

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15.

Pursuant to Defendants' policy defined in their handbook, Defendants

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12 must consider various factors including length of employment in determining whom to lay 13 off. Exhibit I at pg. 14. 14

16.

Although Brandt would be the one who actually would lay off workers,

15 Jimmy Byrd testified that any lay off would be because Byrd ordered Brandt to lay off 16 workers. Exhibit D at Tr. pg. 43, ll. 2-8. 17

17. 18. 19.

Byrd admitted that he does not remember specifically telling Brandt to lay Byrd admitted that he did not look at any employee files before the layoff. Brandt testified that he laid off workers in 2002 without speaking to

18 off workers in 2002. Exhibit D at Tr. pg. 43, ll. 2-8. 19

20 Exhibit D at Tr. pg. 114, ll. 23-24. 21

22 Jimmy Byrd or anyone else in Defendants' management first. Exhibit C at Tr. pg. 30, ll. 623 10; Tr. pg. 114, ll. 24-25, pg. 115, ll. 1-2. 24

20. 21. 22.

Brandt testified that he had to lay off workers in 2002 because he heard Brandt admitted that he did not consider length of employment in Brandt admitted that he did not look at employee files in determining
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25 Defendants were not going to plant broccoli in 2002. Exhibit C at Tr. pg. 30, ll. 10-23. 26

27 determining whom to lay off. Exhibit C at Tr. pg. 111, ll. 21-23. 28

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1 whom to lay off. Exhibit C at Tr. pg. 120, ll. 24-25, pg. 121, ll. 1-4. 2

23. 24. 25.

Brandt admitted that he did not consider any actions of the Plaintiffs that Brandt admitted that he was not sure he considered any written warnings Brandt admitted that he did not remember if Defendants had a policy

3 took place before he was hired in May 2001. Exhibit C at Tr. pg. 126, ll. 18-25. 4

5 in determining whom to lay off. Exhibit C at Tr. pg. 120, ll. 21-23. 6

7 concerning laying off workers. Exhibit C at Tr. pg. 96, ll. 7-10. 8

26. Brandt admitted that he remembered nothing significantly different in 2002 27. 28. John Redmond, Chief Financial Officer for Defendants, also testified that Gilberto Vigueria, assistant to Owen Brandt, admitted there was nothing

9 from 2001. Exhibit C at Tr. pg. 36, ll. 7-19. 10
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

11 there was nothing significantly different in 2002 than 2001. Exhibit H at Tr. pg. 20, ll. 8-12. 12

COMMUNITY LEGAL SERVICES

13 different in the spring of 2002 that changed the amount of work that was available. Excerpts 14 from Deposition of Gilberto Vigueria attached as Exhibit J at Tr. pg. 82, ll. 6-15. 15

29. 30. 31. 32.. 33.

Brandt admitted that some of the new workers were possibly hired to do When Defendants hire workers, they ask for date of birth of the applicant Plaintiff Abel Diaz had 12 years of experience as a tractor driver. Excerpts Mr. Diaz knew his job and knew "what he was doing." Exhibit G at Tr. Before Mr. Diaz was terminated from employment with Defendants, he

16 the work the Plaintiffs had done. Exhibit C at. Tr. pg. 157, ll. 14-17. 17

18 on the application. Exhibit J at Tr. pg. 118, ll. 7-10. 19

20 of Deposition of Abel Diaz attached as Exhibit K at Tr. pg. 7, ll. 6-8. 21

22 pg. 70, ll. 17-18. 23

24 was offered a transfer which would have been a significant pay cut for Mr. Diaz. Mr. Diaz 25 was making $6.25 per hour and would receive $5.15 per hour if he was transferred. Exhibit 26 K at Tr. pg. 45, ll. 2-8. 27

34.

Mr. Diaz's last day of employment with Defendants was January 19, 2002.

28 Defendants' Termination Notice to Abel Diaz attached as Exhibit L.

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35. 36.

On that date, Mr. Diaz received a Notice of Termination, which stated in In his May 14, 2002 letter to the EEOC responding to their investigation

2 Spanish that he was being terminated because of a reduction in work. Exhibit L. 3

4 of Mr. Diaz's age discrimination claim, John Redmond states that Mr. Diaz was being laid 5 off because he had a pacemaker, because he was unable to do the job required of him, 6 because he refused a transfer to a more suitable job and because of a work slow down. John 7 Redmond's letter to EEOC concerning Abel Diaz attached as Exhibit M. 8

37.

In Defendants' Answers to Plaintiffs' First Set of Interrogatories on June

9 19, 2004, Defendants stated that Mr. Diaz was discharged because of a seasonal work slow 10 down, a reduction in work, and that Mr. Diaz refused a transfer when it was offered to him.
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

11 Exhibit B. 12

COMMUNITY LEGAL SERVICES

38.

Between Mr. Diaz's termination in January 2002 and May 2002,

13 Defendants hired nine new employees to work in Crew 94, eight of whom - William 14 Monroe, Juan Cazares, Anton Bucklew, Clint White, Javier Gastelum, Arturo Osuma, and 15 Jesus Valdez ranged in age from 21 to 39 years old. Chart of Crew 94 Employees from 16 9/1/01 to 8/1/02 attached as Exhibit N. 17 18

39. 40. 41.

Mr. Moreno was terminated on February 6, 2002. Defendants' Exhibit M. Mr. Moreno was a stable and dependable worker with no disciplinary On February 6, 2002, Mr. Moreno received a Notice of Termination which

19 problems. Exhibit G at Tr. pg. 73, ll. 13-19. 20

21 stated that Mr. Moreno was being terminated because of a reduction in work. Mr. Moreno 22 refused to sign this termination slip. Defendants' Exhibit M. 23

42.

In his May 14, 2002 letter to the EEOC responding to their investigation

24 of Mr. Moreno's age discrimination claim, John Redmond states that Mr. Moreno was laid 25 off due to a work slow down and his work history was taken into account. Mr. Redmond 26 states that because Mr. Moreno had been disciplined previously for damaging an irrigation 27 ditch, damaging a disc and tractor, and bringing a passenger on farm equipment, that the 28 decision was made to let him go. John Redmond's letter to the EEOC concerning Mr.

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1 Moreno attached as Exhibit O. 2

43.

In a phone interview with the EEOC three days later, on May 17, 2002,

3 Mr. Redmond stated that Mr. Moreno was fired for cause. Notes from EEOC phone 4 conversation with Mr. Redmond attached as Exhibit P. 5

44.

All eight individuals hired after Mr. Moreno was terminated - William

6 Monroe, Juan Cazares, Anton Bucklew, Clint White, Javier Gastelum, Arturo Osuma and 7 Jesus Valdez were between 21-39 years old. Exhibit N. 8

45. 46. 47. 48. 49.

Plaintiff Mancilla was employed by Defendants more than five years. Mr. Mancilla was a good worker. Exhibit G at Tr. pg. 80, ll. 12-14. Mr. Mancilla was 63 years old when he was terminated. Exhibit N. Mr. Mancilla's last day of employment with Defendant Eagle Produce was On that date, Mr. Mancilla received a Notice of Termination, which stated

9 Excerpts of Deposition of Alejandro Mancilla attached as Exhibit Q at Tr. pg. 6, ll. 3-7. 10
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

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COMMUNITY LEGAL SERVICES

13 February 5, 2002. Defendants' notice to Mr. Mancilla attached as Exhibit R. 14

15 in Spanish that Mr. Mancilla was being terminated because of a reduction in work. Exhibit 16 R. 17

50.

In his May 14, 2002 letter to the EEOC, John Redmond states that Mr.

18 Mancilla was laid off due to a work slow down. Mr. Redmond also states that in deciding to 19 lay off Mr. Mancilla, his work history was taken into account. Mr. Redmond states that 20 because Mr. Mancilla had previously been given warnings for breaking the bottom of a 21 chemical trailer and for not wearing safety equipment, the decision was made to lay him off. 22 Mr. Redmond's letter to EEOC concerning Alejandro Mancilla attached as Exhibit S. 23

51. 52.

John Redmond testified in his deposition that these were the only reasons In Defendants' Answers to Plaintiffs' First Set of Interrogatories, the

24 Mr. Mancilla was terminated from his employment. Exhibit H at Tr. 62, ll. 3-13. 25

26 Defendants stated that Mr. Mancilla was discharged because of a seasonal work slow down, 27 a reduction in work and Mr. Mancilla had only been hired by Defendant Eagle Produce as an 28 experimental tractor driver for one limited project. Defendants further stated that when the

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1 project was complete, Crew 94 supervisor Owen Brandt allowed Mr. Mancilla to continue to 2 be employed on Crew 94 driving the water truck. Thee reduction of work also caused the 3 reduction of the use of the water truck. Exhibit B. 4

53. 54.

Owen Brandt testified that he terminated Mr. Mancilla because he had Following Mr. Mancilla's termination, Defendants hired eight workers to

5 destroyed company property. Exhibit C at Tr. pg. 151, ll. 3-6. 6

7 crew 94- William Monroe, Jose Garcia, Ramiro Salgado, Juan Cazares, Anton Bucklew, 8 Clint White, Javier Gastelum and Jesus Valdez- all of whom were younger than Mr. 9 Mancilla. Exhibit N. 10
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

55. 56.

With the exception of Jose Garcia, who is six years younger than Mr. Plaintiff Piedad Renteria had 15 years of experience working as a tractor

11 Mancilla, all of the workers ranged in age from 21 to 30 years of age. Exhibit N. 12

COMMUNITY LEGAL SERVICES

13 driver for Defendants when he was terminated on February 23, 2002. Exhibit E, pg. 7, ll. 1314 14. 15

57.

He cashed checks every payday in front of the farm office for several

16 years without ever being reprimanded or told to stop cashing checks on Defendants' 17 property. It was not until Owen Brandt was hired as the tractor foreman for Crew 94 that he 18 was told to stop cashing checks on Defendants' property. Exhibit F. 19

58. 59.

Mr. Renteria was not the only employee of Defendants who cashed checks In his deposition taken for this matter by Defendants on February 11,

20 on their property, but he was the only one disciplined for doing so. Exhibit F. 21

22 2005, Mr. Renteria first asserted that Gilberto Vigueria stated to him on a truck that 23 Vigueria was going to get the older workers fired because Vigueria did not like them. He 24 became confused during the line of questioning and later stated that Vigueria never said 25 anything to him about firing older workers. However, Vigueria did in fact tell him that he 26 was going to fire the older workers because he did not like them. Exhibit F; Exhibit E at Tr. 27 pg. 32, ll. 21-25, Tr. pg. 33, ll. 1-4. Piedad Renteria's Answers to Interrogatories attached as 28 Exhibit T.

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60.

At the time of his discharge, Piedad Renteria was qualified to plant, had

2 operated planting tractors and even had instructed other tractor drivers on Crew 94 how to 3 plant. Exhibit F. 4

61. 62.

Mr. Renteria could perform any and all tasks required by Crew 94 On his last day of employment, Mr. Renteria received a "Notice to

5 employees. Exhibit F. 6

7 Employee" which stated in Spanish that he was being terminated for violating "Group Rule 8 II, #6: Soliciting money or selling any merchandise without the permission of the company." 9 The Notice given to Mr. Renteria does not state specifically what he was doing that violated 10 this rule. Notice from Defendants to Mr. Renteria attached as Exhibit U.
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

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63.

In his May 14, 2002 to the EEOC, Mr. John Redmond stated that Mr.

COMMUNITY LEGAL SERVICES

12 Renteria was being discharged for cause, that he violated company rules against operating a 13 check cashing business on Defendants' property. Letter from Mr. Redmond to EEOC about 14 Mr. Renteria attached as Exhibit V. 15

64.

In their Answers to Plaintiffs' First Set of Interrogatories, Defendants

16 stated that Mr. Renteria was terminated from his position due to a seasonal work slowdown 17 and a reduction of work, as well as his violation of company rules. Exhibit B. 18

65.

Five individuals were hired by Defendants in Crew 94 after Mr. Renteria

19 was terminated- Ramiro Salgado, Juan Cazares, Anton Bucklew, Javier Gastelum and 20 Valdez. All five of these individuals range in age from 21-39 years old. Exhibit N. 21

66.

Several of the replacement workers had very little experience driving

22 tractors. Exhibit J at Tr. pg. 113, ll. 23-25; Tr. pg. 114, ll. 1-20; Tr. pg. 113, ll. 9-19; pg. 23 115, ll. 23-25, pg. 116, ll. 1-7. 24

67. 68.

Some of the replacement workers were hired to do the same work as the After an investigation by EEOC concerning their terminations in 2002,

25 Plaintiffs had done when they were employed. Exhibit C at Tr. pg. 157, ll. 14-17. 26

27 the EEOC found that there was reasonable cause to believe that Defendants discriminated 28 against Mr. Renteria, Mr. Moreno and Mr. Mancilla based upon their age. Notice to Sue

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1 Letters by the EEOC attached as Exhibit W. 2

69. .

Phoenix Agro Invest was added as a party to this litigation by Order of COMMUNITY LEGAL SERVICES /s Kristina M. Campbell Kristina M. Campbell Attorney for Plaintiffs

3 this Court. Exhibit A. 4 5 6 7 8 9 10
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

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I hereby certify that on September 1, 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 Electronic Filing to the following CM/ECF registrants: J. Mark Ogden J. Greg Coulter Brandon A. Newton LITTLER MENDELSON, P.C. 2425 East Cambelback Rd., Suite 900 Phoenix, Arizona 85016 /s Laura Smith

COMMUNITY LEGAL SERVICES

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