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, ________________________________

Case No. CIV 03-2127 PHX-MHM

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PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

INTRODUCTION

In their motion for summary judgment and supporting memoranda, Defendants fail to meet their burden as to every claim addressed. Accordingly, Defendants' motion for summary judgment should be denied in its entirety. RESPONSE TO DEFENDANTS' ARGUMENT I. Summary Judgment Standard Summary judgment is appropriate "if the pleadings and supporting documents, viewed in the light most favorable to the nonmoving party, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." M. Mann v. New York Life Insurance and Annuity Corp, 222 F.Supp.2d 1151, 1153 (D.Arizona 2002); See also Lassonde v. Pleasanton Unified School District, 320 F.3d 979,

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982 (9th Cir. 2003). "At the summary judgment stage, a plaintiff's burden is not high...He need only show that `a rational trier of fact could, on all the evidence, find that the employer's action was taken for impermissibly discriminatory reasons.'" Wood v. Dollar Rent-A-Car Systems, Inc., 128 Fed. Appx. 620, 622 (9th Cir. 2005) (citing Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994)). "If under any reasonable construction of the evidence and any acceptable theory of law, one would be entitled to prevail, the summary judgment against him cannot be sustained." Garter-Bare Co. v. Munsingwear, Inc., 650 F.2d 975, 980 (9th Cir. 1980). Issues of credibility, including questions of intent, should be left to the jury. Lowe v. City of Monrovia, 775 F.2d 998, 1008 (9th Cir. 1985). When a plaintiff has provided direct and circumstantial evidence of discriminatory intent, she has established a prima facie case of disparate treatment and may be able to survive a motion for summary judgment on that evidence alone. Id.; see also Warren, 58 F.3d at 442 n. 1. II. Substantial Issues of Material Fact Exist Regarding Plaintiffs' Age Discrimination Claims A. Plaintiffs Are Able to Establish A Prima Facie Case of Age Discrimination Under the ADEA

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The 9th Circuit has established a three-step, burden-shifting test in order for an individual to prove a case of age discrimination under the ADEA. Ritter v. Hughes Aircraft Co., 58 F.3d 454 (9th Cir. 1995). Under this test, an individual must first establish a prima facie case of age discrimination by demonstrating that he was: 1) a member of the protected class of at least age 40; 2) performing his job adequately; 3) terminated; and 4) replaced by a substantially younger employee with equal or inferior qualifications. Coleman v. Quaker Oats, 232 F.3d 1271, 1281 (9th Cir. 2001). The burden of establishing a prima facie case is not designed to be "onerous" and only requires the production of evidence which "suggests" that the employment decision was based on age. Diaz v. American Tel & Tel., 752 F.2d 1356, 1361 (9th Cir. 1985). "[T]he requisite degree of proof necessary to establish a prima facie case for Title VII...on summary judgment is minimal and does not even need to rise to the level of a preponderance of the evidence." Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994). Because all four Plaintiffs in this matter are capable of establishing
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a prima facie case of age discrimination under the ADEA, the Defendants' motion for summary judgment must be denied as a matter of law. 1. Defendants Fail to Prove That Plaintiffs Have Not Met Their Burden Concerning Substantially Younger Replacement Workers

Defendants' claim that Plaintiffs cannot meet their burden of establishing a prima facie case under the ADEA because they claim that Plaintiffs cannot prove they were replaced by substantially younger workers. However, Defendants' contention that Plaintiffs may only succeed if they know the exact names of the workers who replaced them is erroneous, and is the only argument presented by Defendants to prove that Mr. Renteria, Mr. Diaz, and Mr. Mancilla have not established a prima facie case under the ADEA. In establishing a prima facie case in an ADEA action, an individual must prove that a substantially younger person was hired to replace him. Plaintiffs do not have to prove exactly who replaced them because Defendants testified in their depositions that the jobs performed by the workers on Crew 94, the crew that all four Plaintiffs in this action worked for at the time of their termination, were by and large the same. S.O.F. 6. Furthermore, Owen Brandt, Plaintiffs' supervisor, testified that the newly hired workers may have been hired to replace the Plaintiffs. S.O.F. 67. Although Defendants contend that Plaintiffs cannot produce evidence that Defendants had knowledge of the significant age discrepancy between the Plaintiffs and the individuals hired to work on Crew 94 following their terminations, this contention is dubious at best. Defendant Eagle Produce collected information regarding its employees dates of birth in its regular course of business. S.O.F. 30. At the summary judgment stage, a plaintiff does not have to prove conclusively that the employer knew that the workers who replaced him were substantially younger - the plaintiff merely bears the burden of producing "some evidence that an employer knew that it was replacing an older worker with a younger one." See Woodman v. WWOR-TV, Inc., 2005 U.S. App. Lexis 11060, No. 03-9348, at *32 (2nd Cir. June 13, 2005)(emphasis ours). In this case, Plaintiffs have clearly met the burden of producing evidence that the
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Defendants knew that the individuals hired to replace them were substantially younger. The chart provided to Plaintiffs' attorneys during this litigation, which was prepared by John Redmond, financial manager for Defendant Eagle Produce, provides the names and dates of birth of all Plaintiffs and the workers hired to replace them on Crew 94 following their terminations. S.O.F. 38. Defendants knew the ages of the individuals they hired to work on Crew 94 at the time of their hire. In light of these facts, Plaintiffs have produced evidence that the Defendants had access to documents proving the substantial age difference between the terminated Plaintiffs and the younger replacement workers in this matter, and Defendants cannot claim that they "discriminated on the basis of a condition of which [they were] wholly ignorant."See Robinson v. Adams, 847 F.2d 1315, 1316 (9th Cir. 1987). Defendants also contend that Plaintiffs cannot use the hiring of William Monroe to work on Crew 94 to establish that they were replaced by substantially younger workers as part of their prima facie case of age discrimination. Defendants claim that Monroe was hired to specifically replace Fermin Palma as a grader operator, and that as such, Plaintiffs cannot use his hiring as evidence that they were replaced by substantially younger workers. However, even if Defendants' contention that Monroe was hired to replace Palma is true, the fact remains that eight other workers who were substantially younger than the Plaintiffs in this matter were hired to work on Crew 94 following their discharge. S.O.F. 38. Aside from Monroe, Defendants have not presented any evidence that any of the other eight substantially younger workers hired to work on Crew 94 following Plaintiffs' terminations were hired to perform a special skill or to replace any specific worker. Additionally, Gilberto Vigueria, assistant to Brandt, testified that several of the replacement workers had very little experience driving tractors. S.O.F. 66. Therefore, by demonstrating that substantially younger workers were hired to work on Crew 94 following their discharges, Plaintiffs have satisfied the fourth prong for establishing a prima facie case of age discrimination under the ADEA. Defendants also claim that one of the substantially younger workers hired to work on Crew 94 following Plaintiffs' terminations, Jose Garcia, is not "substantially
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younger" than the Plaintiffs and therefore his hiring cannot be used as evidence for establishing a prima facie case of age discrimination under the ADEA. Mr. Garcia was 58 years old at the time he was hired by Defendants, which makes him older than one Plaintiff, Mr. Diaz. S.O.F. 38. However, the other three Plaintiffs were all older than Mr. Garcia at the time of their discharge, and therefore can use his hiring as evidence to establish their prima facie case of age discrimination. The Plaintiff closest in age to Mr. Garcia, Mr. Mancilla, was 63 years old at the time of his discharge. S.O.F. 47. Contrary to the standard cited by Defendants, Ninth Circuit has held that an age difference of 5 years is sufficient to establish a prima facie case of replacement by a "substantially younger" person under the ADEA. See Douglas v. Anderson, 656 F.2d 528, 533 (9th Cir. 1981). The 5 year age range in question here between Mr. Mancilla and Mr. Garcia also falls within the definition of "substantially younger" as interpreted by other circuit courts of appeal. See Fisher v. Vassar Coll., 66 F.3d 379, 1995 WL 527804, at *29 (2nd Cir.), republished as amended, 70 F.3d 1420, 1450-51 (2nd Cir. 1995); Carter v. City of Miami, 870 F.2d 578, 583 (11th Cir. 1989); Carter v. Decision-One Corp., 122 F.3d 997, 1003 (11th Cir. 1997); Damon v. Fleming Supermarkets, 196 F.3d 1354, 1359-60 (11th Cir. 1999). a. Piedad Renteria At the time of his discharge, Mr. Renteria was qualified to plant, and had operated planting tractors and even instructed other tractor drivers on Crew 94 how to plant. S.O.F. 7. Because Mr. Renteria was qualified to plant at the time of his termination, he was among the most skilled workers on Crew 94. S.O.F. 60. He could perform any and all tasks required of Crew 94 employees, and was even a supervisor on Crew 94 for a period of time. S.O.F. 61. Mr. Renteria had nearly 15 years of experience working as a tractor driver for Defendants when he was terminated on February 23, 2002. S.O.F. 56. Mr. Renteria satisfies the fourth prong of establishing a prima facie case of age discrimination under the ADEA because he can demonstrate that the five individuals hired to work for Crew 94 between March 2002 and May 2002 after Mr. Renteria was terminated
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were both substantially younger than him and had inferior qualifications. Following Mr. Renteria's termination by Defendants on February 23, 2002, five new employees were hired to work on Crew 94 - Ramiro Salgado, Juan Cazares, Anton Bucklew, Javier Gastelum, and Jesus Valdez. All five of these individuals, who ranged in age from 21 to 39 years of age at the time of their hire, were substantially younger than Mr. Renteria, who was 65 years old at the time of his discharge by Defendants. S.O.F. 65. Because the oldest of the five employees hired to work as tractor drivers on Crew 94 after Mr. Renteria was terminated was 26 years younger than him, there is no dispute that all of these new employees were "substantially younger" than Mr. Renteria. Therefore, Mr. Renteria is able to establish a prima facie claim of age discrimination under the ADEA, and summary judgment is not appropriate under these facts. b. Abel Diaz Following Mr. Diaz's discharge from Defendant Eagle Produce, eight individuals who were "substantially younger" than him were hired to work on Crew 94. Mr. Diaz has 12 years of experience as a tractor driver. S.O.F. 31. He was terminated by Defendants on January 19, 2002, and his termination slip stated that he was being laid off due to a seasonal work slowdown. S.O.F. 34, S.O.F. 35. However, between Mr. Diaz's termination in January 2002 and May 2002, Defendants hired nine new employees to work on Crew 94, eight of whom - William Monroe, Juan Cazares, Anton Bucklew, Clint White, Javier Gastelum, Arturo Osuma, and Jesus Valdez - were substantially younger than Mr. Diaz at the time of their hire. S.O.F. 38. Because Mr. Diaz was 55 years old at the time of his discharge by Defendants, and the age range of the individuals subsequently hired to work on Crew 94 was 21 to 39 years of age, it is without question that the persons hired after he was terminated were "substantially younger" than Mr. Diaz. c. Ubaldo Moreno Mr. Moreno can establish that all eight individuals hired after he was terminated - William Monroe, Juan Cazares, Anton Bucklew, Clint White, Javier Gastelum, Arturo Osuma, and Jesus Valdez - were substantially younger than he was. S.O.F. 44. Because Mr.
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Moreno was 66 years old at the time of his discharge, and the age range of the individuals subsequently hired to work on Crew 94 was 21 to 39 years of age, it is without question that the persons hired after he was terminated were "substantially younger." d. Alejandro Mancilla Mr. Mancilla was terminated from his employment with Defendants on February 5, 2002, for "reduction of work." S.O.F. 48, S.O.F. 49. At the time of his discharge, Mr. Mancilla was 63 years of age. S.O.F. 47. Following his termination for reduction of work, Defendants hired eight workers to work on Crew 94 - William Monroe, Jose Garcia, Ramiro Salgado, Juan Cazares, Anton Bucklew, Clint White, Javier Gastelum, and Jesus Valdez - all of whom were substantially younger than Mr. Mancilla at the time of their hires. S.O.F. 54. The Plaintiffs do not know which individuals specifically replaced them on Crew 94 following their terminations. However, the fact that Defendants hired a number of individuals who were substantially younger than Plaintiffs immediately following their terminations, to perform the same work that the Plaintiffs had been performing prior to their discharges, creates a triable issue of fact that Plaintiffs were terminated on the basis of age discrimination. Therefore, Plaintiffs can establish a prima facie case of age discrimination under the ADEA, and summary judgment is not appropriate in this case. 2. Defendants Failed to Prove that Plaintiff Ubaldo Moreno Was Not Doing His Job Adequately

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Defendants argue in their motion that Mr. Moreno cannot establish a prima facie case of age discrimination under the ADEA because he did not perform his job satisfactorily. However, Defendants have failed to offer any evidence that Mr. Moreno was not performing his job satisfactorily at the time of his discharge. Mr. Moreno was terminated by Defendants on February 6, 2002. S.O.F. 39. The reason given for Mr. Moreno's termination was that he was being laid off due to a seasonal work slow-down. S.O.F. 41. Defendants argue in their motion that the primary reason Mr. Moreno was terminated was because he caused several thousand dollars worth of damage to a tractor while in Defendants' employ. S.O.F. 42. However, the reason proffered on Mr.
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Moreno's termination form is "Lay-off due to reduction of work." There is nothing on Mr. Moreno's termination form that indicates he was being dismissed for not satisfactorily performing his job. S.O.F. 41. Therefore, Mr. Moreno was performing his job at a satisfactory level at the time of his termination, and will be able to satisfy this element for establishing a prima facie case of age discrimination under the ADEA. B. A Genuine Issue of Material Fact Exists As to Whether Plaintiffs Were Terminated By Defendants For a Legitimate, Nondiscriminatory Reason

Once a prima facie case of age discrimination has been established, the Defendant then bears the burden of producing evidence of a legitimate non-discriminatory reason for taking an adverse employment action. Merrick v. Farmers Ins. Group, 892 F.2d 1434, 1437-8 (9th Cir. 1990). In rebutting the legitimate non-discriminatory reason proffered by a defendant for taking an adverse employment action, a plaintiff need only offer enough evidence to create a triable issue of fact as to whether the asserted reason for the adverse employment action was a pretext for age discrimination. See Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 148, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (holding that a plaintiff's prima facie case, combined with evidence that defendant's proffered reason is unworthy of belief, may permit a fact finder to conclude that the employer unlawfully discriminated). In this case, summary judgment is not appropriate because the Plaintiffs have established a prima facie case of age discrimination by providing evidence that the employer knew that the workers who replaced them were substantially younger, and can also demonstrate pretext for the nondiscriminatory reasons proffered by Defendants for their discharges. 1. Because Plaintiffs Have Evidence That The Legitimate Reasons Proffered by Defendants for Their Terminations Were Pretextual, Summary Judgment is Not Appropriate

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Summary judgment is not appropriate in this matter because a genuine issue of material fact exists regarding the legitimacy of the nondiscriminatory reasons for the Plaintiffs' terminations proffered by the Defendants. Plaintiffs have evidence that the
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reasons proffered by Defendants for their terminations were not the actual reasons they were terminated from their employment, but were, in fact, pretext for age discrimination. To survive summary judgment in an age discrimination case, a plaintiff need only provide enough evidence to create a triable issue of fact regarding the legitimacy of the defendant's proffered nondiscriminatory reason and the inference of pretext. "As a general matter, the plaintiff in an employment discrimination action need produce very little evidence in order to overcome an employer's motion for summary judgment. This is because `the ultimate question is one that can only be resolved through a searching inquiry-one that is most appropriately conducted by a factfinder, upon a full record.'" Chuang v. University of California Davis, Board of Trustees, 225 F.3d 1115, 1124 (9th Cir. 2000) (citing Schnidrig v. Columbia Mach., Inc., 80 F.3d 1406, 1410 (9th Cir. 1996)). The Ninth Circuit Court of Appeals has held that "a plaintiff can prove pretext in one of two ways: (1) indirectly, by showing that the employer's proffered explanation is `unworthy of credence" because it is internally inconsistent or otherwise not believable, or (2) directly, by showing that unlawful discrimination more likely motivated the employer. See Chuang, 225 F.3d at 1127 (citing Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220 (9th Cir. 1998)). In this case, all four Plaintiffs have evidence that enables them to demonstrate, both directly or indirectly, that the reasons proffered by the Defendants for their adverse employment decisions are were pretextual for age discrimination. a. Direct Evidence of Pretext Defendants incorrectly claim that Plaintiffs need to show "specific" and "substantial" evidence of pretext in order to survive summary judgment. "With direct evidence, a triable issue as to the actual motivation of the employer is created even if the evidence is not substantial." Blue v. Widnall, 162 F.3d 541, 546 (9th Cir. 1998) (citing Godwin, 150 F.3d at 1220-21). As such, the issue for purposes of summary judgment is whether Plaintiffs are in possession of direct evidence of discrimination, and not whether the evidence is "specific" or "substantial." Plaintiffs are in possession of direct evidence that the reason given for their
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termination by Defendants was pretextual. First, Plaintiff Piedad Renteria stated in his Answers to Defendants' First Set of Interrogatories and testified at his deposition that Gilberto Vigueria, who was a crewleader on the Plaintiff's work crew, Crew 94, told him in a private conversation that he was going to fire older workers because he did not like them. S.O.F. 59. Second, Plaintiffs' former supervisor on Crew 94, Chester Daffern, testified in his deposition that he was fired by Defendant Eagle Produce because he was old. S.O.F. 10. Because Plaintiffs have direct evidence of pretext, the weight and credibility that should be given to this evidence is a question for the trier of fact to decide, and is thus not an appropriate basis for summary judgment. b. Indirect Evidence of Pretext The Ninth Circuit has held that "[a]t the summary judgment stage, as well as at trial, any form of evidence of discriminatory treatment that is otherwise admissible may be used to support any allegation of discrimination." See Chuang, 225 F.3d at 1128. A plaintiff may demonstrate pretext through either indirect or direct evidence. See Chuang, 225 F.3d at 1127 (citing Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220 (9th Cir. 1998)). Additionally, "fundamentally different justifications for an employer's action would give rise to a genuine issue of fact with respect to the possibility that neither of the official reasons was the true reason." Washington v. Garrett, 10 F.3d 1421, 1434 (9th Cir. 1993); see also Nidds v. Schindler Elevator, 103 F.3d 854, 859 n.2 (9th Cir. 1996). Plaintiffs are also in possession indirect evidence that the reasons proffered by Defendants for their termination were pretextual for age discrimination. The indirect evidence in this case regarding the Defendants' proffered reasons for their adverse employment action against Plaintiffs are "internally inconsistent," and as such raise a genuine issue of material fact regarding the truth of the reasons given by the employer for Plaintiffs' termination. i. Internally Inconsistent Statements by Defendants Defendants are mistaken in their assertion that Plaintiffs have not met their
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burden of providing sufficient evidence to enable a reasonable trier of fact to conclude that they were intentionally discriminated against because of their age. In Villiarimo v. Aloha Island Air, 281 F.3d 1054 (9th Cir. 2002), the Ninth Circuit held that "courts only require that an employer honestly believed its reasons for its actions." 281 F.3d 1054 at 1063. Because Defendants have given multiple, conflicting, and constantly changing reasons for Plaintiffs' termination, a question of fact as to the Defendants' honest belief in their proffered nondiscriminatory motive for discharging the Plaintiffs have been raised. Defendants' proffered nondiscriminatory reason for terminating Plaintiffs is that there was a work slow-down, and as such, there was not enough work for the Plaintiffs to perform on Crew 94 so they were laid-off. However, Defendants have used changing justifications for the alleged work slow-down. The reasons given for whose decision it was to lay-off the Plaintiffs, and why that decision was made, are inconsistent and raise a genuine issue of material fact as to the truth of Defendants' proffered nondiscriminatory reasons for terminating Plaintiffs. Such internally inconsistent statements regarding the true reasons for Plaintiffs' discharges are evidence of pretext, and can be used by Plaintiffs as evidence of age discrimination. The Plaintiffs' supervisor on Crew 94, Owen Brandt, testified at his deposition that he alone was responsible for making the decision to lay-off the Plaintiffs. S.O.F. 19. Brandt also testified that the reason he laid-off the Plaintiffs was due to a work slow-down based on the decision not to plant broccoli in early 2002. S.O.F. 20. Brandt testified that there were no other reasons for terminating Plaintiffs, and that he did not consider any other factors or work history in his decision to lay-off the Plaintiffs. S.O.F. 21, S.O.F. 22, S.O.F. 23, S.O.F. 24. In their motion for summary judgment, Defendants state that the use of plastic mulch caused a significant reduction in the amount of available work for tractor drivers, which in turn necessitated Plaintiffs' lay-off. Defendants' motion does not mention the decision not to plant broccoli in early 2002 as being a factor in the alleged work slow-down or in the decision to lay-off the Plaintiffs. Defendants' motion only discusses how the
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utilization of plastic mulch reduced the number of acres for harvest and the hours of work available to the tractor drivers on Crew 94. Because the reasons given for the Plaintiffs' terminations by Owen Brandt, their direct supervisor and the person who signed their termination notices, is not argued by Defendants in their motion for summary judgment, there is a question of fact as to the truth of the proffered nondiscriminatory reason given for Plaintiffs' terminations. Defendants' internally inconsistent statements are evidence of pretext and as such, summary judgment is improper. ii. Deviation From Established Policy or Practice The Ninth Circuit has held that "[d]eviation from established policy or practice may be evidence of pretext." See Brennan v. GTE Government Systems Corporation, 150 F.3d 21, 29 (9th Cir. 1998) (citing Lattimore v. Polaroid Corp, 99 F.3d 456, 466-467 (1st Cir. 1996). The Plaintiffs' supervisor, Owen Brandt, stated in his deposition that when he decided to lay off the Plaintiffs, he did not consider their work history prior to the time he became their supervisor in May 2001, and that he did not review their employee files prior to discharging them. S.O.F. 22. Brandt's statement that he did not consider the Plaintiffs' length of employment goes against the official policy of Defendant Eagle Produce, as outlined in the company handbook. S.O.F. 14, S.O.F. 15. Brandt also testified that he alone made the decision to lay-off Plaintiffs, which goes against company policy that the farm manager, Jimmy Byrd, is involved in the decisions to hire and fire all company employees. S.O.F. 16, S.O.F. 17, S.O.F. 18, S.O.F. 19. Because Plaintiffs are in possession of evidence that Defendants' failed to follow established policy and practices when they made the decision to terminate their employment, a question of fact is raised as to the truth of Defendants' proffered nondiscriminatory reasons for Plaintiffs' discharges, and summary judgment is inappropriate. c. Piedad Renteria Mr. Renteria's last day as an employee of Defendant Eagle Produce was February 23, 2002, when he received a "Notice to Employee," which stated in Spanish that
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he was being terminated for violating "Group Rule II, #6: Soliciting money or selling any merchandise without the permission of the company." S.O.F. 62. The Notice given to Mr. Renteria does not state specifically what he was doing that violated this rule. In their Answers to Plaintiffs' First Set of Interrogatories, Defendants stated that Mr. Renteria was terminated from his position due to a seasonal work slowdown, a reduction in work, as well as his violation of company rules. S.O.F. 64. These constantly changing reasons given by the Defendants for Mr. Renteria's termination meets the standard articulated by the Ninth Circuit for establishing pretext, and as such summary judgment is inappropriate. d. Abel Diaz Mr. Diaz's last day of employment with Defendant Eagle Produce was January 19, 2002. On that date, Mr. Diaz received a Notice of Termination, which stated in Spanish that he was being terminated for a reduction in work. S.O.F. 34. In his May 14, 2002 letter to the EEOC, John Redmond stated that Mr. Diaz was laid off because he had a pacemaker, because he was unable to the jobs required of him, and because he refused a transfer to a more suitable job. S.O.F. 36. In the Defendants' Answers to Plaintiffs First Set of Interrogatories on June 19, 2004, the Defendants stated that Mr. Diaz was discharged because of a seasonal work slowdown and reduction in work, and that Mr. Diaz refused a transfer when it was offered to him. S.O.F. 37. However, Mr. Diaz testified that one of the reasons he refused the transfer offered to him was because the new position offered to him would have dropped his hourly wage from $6.25/hour to $5.15/hour. S.O.F. 33. Defendants' attempt to argue that because Mr. Diaz would not take the transfer offered to him, his discriminatory lay-off was justified. However, because the transfer would have resulted in less pay for Mr. Diaz, the transfer would have been an adverse employment action under the ADEA. See Little v. Windermere Relocation, Inc., 301 F.3d 958. "An `adverse employment action' is `any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity'...A cut in base pay is clearly such an adverse action." Id. at 970 (citing Ray v. Henderson, 217 F.3d 1234, 1244 (9th Cir. 2000)).
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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

Therefore, the proposed transfer and the termination were both discriminatory. These changing justifications for Mr. Diaz's termination by Defendants show that their proffered explanation is "unworthy of credence" because of it is internally inconsistent, and summary judgment is not appropriate because there is a triable issue of fact regarding the pretextual reason given for Mr. Diaz's discharge. e. Ubaldo Moreno Mr. Moreno's last day of employment with Defendant Eagle Produce was February 6, 2002. S.O.F. 39. On that date, Mr. Moreno received a Notice of Termination, which stated in Spanish that Mr. Moreno was being terminated for a reduction in work. Mr. Moreno refused to sign this termination slip. S.O.F. 41. In his May 14, 2002 letter to the EEOC, John Redmond stated that Mr. Moreno was laid off due to a work slow-down. Mr. Redmond also stated at that time that in deciding to lay off Mr. Moreno, his work history was taken into account. Mr. Redmond stated that because Mr. Moreno had been disciplined previously for damaging an irrigation ditch, damaging a disc and a tractor, and bringing a passenger on farm equipment, that the decision was made to let him go. S.O.F. 42. However, in his phone interview with the EEOC three days later, on May 17, 2002, Mr. Redmond stated that Mr. Moreno was fired for cause. S.O.F. 43. Owen Brandt, stated in his deposition that when he decided to lay off Mr. Moreno, he did not consider his work history prior to the time he became Mr. Moreno's supervisor in May 2001, and that he did not review Mr. Moreno's employee file prior to discharging him. S.O.F. 18. As such, Brandt's testimony and the reasons given by Redmond are inconsistent and support an inference of pretext. Because Defendants have given multiple, conflicting, and constantly changing reasons for Mr. Moreno's termination, a question of fact as to the Defendants' honest belief in their proffered nondiscriminatory motive for discharging Mr. Moreno has been raised. Therefore, Mr. Moreno has met his burden of demonstrating pretext, and summary judgment is not appropriate in this matter.
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f.

Alejandro Mancilla

Mr. Mancilla's last day of employment with Defendants was February 5, 2002. S.O.F. 48. On that date, Mr. Mancilla received a Notice of Termination, which stated in Spanish that Mr. Mancilla was being terminated for a reduction in work. S.O.F. 49. In his May 14, 2002 letter to the EEOC, John Redmond stated that Mr. Mancilla was laid off due to a work slow-down. Mr. Redmond also stated at that time that in deciding to lay off Mr. Mancilla, his work history was taken into account. Mr. Redmond stated that because Mr. Mancilla had previously been given warnings for breaking the bottom of a chemical trailer and for not wearing safety equipment, the decision was made to lay him off. S.O.F. 50. In the Defendants' Answers to Plaintiffs First Set of Interrogatories, the Defendants stated that Mr. Mancilla was discharged because of a seasonal work slow-down and reduction in work, and claimed for the first time that Mr. Mancilla had only been hired by Defendant Eagle Produce as an experimental tractor driver for one limited project. When that project was complete, Crew 94 supervisor Owen Brandt allowed Mr. Mancilla to continue to be employed on Crew 94 driving the water truck, and that the reduction of work also caused the reduction of the use of the water truck. S.O.F. 52. This reason is clearly different from the previous reasons proffered by Defendants' for Mr. Mancilla's termination, and gives rise to the issue of pretext regarding the proffered nondiscriminatory reasons for Mr. Mancilla's discharge. Mr. Mancilla was employed by Defendants for more than five years. S.O.F. 45. Prior to the answers given by Defendants to the Plainitffs' First Set of Interrogatories, it was never asserted by Defendants that Mr. Mancilla was a temporary employee or that he had only been hired to do one specific project. Defendants also gave inconsistent reasons for Mr. Mancilla's termination in their depositions. John Redmond stated in his deposition that the reasons set forth in the Defendants' answers to interrogatories were the only reasons Mr. Mancilla was discharged from his employment. S.O.F. 51. However, in his deposition, Owen Brandt stated that Mr. Mancilla was terminated because he had destroyed company property. S.O.F. 53. These changing justifications for Mr. Mancilla's termination by Defendants
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show that the employer's proffered explanation is "unworthy of credence" because of it is internally inconsistent, and summary judgment is not appropriate because there is a triable issue of fact regarding the pretextual reason given for his discharge. g. The EEOC Found That Plaintiffs Renteria, Moreno, and Mancilla Had Reasonable Cause to File ADEA Claims

After an investigation by the EEOC concerning the terminations of the Plaintiffs in 2002, the EEOC that there was reasonable cause to believe that Mr. Renteria, Mr. Moreno, and Mr. Mancilla had been discriminated against based on their age. S.O.F. 68. Although this is not direct evidence pursuant to Coleman, this Court should consider it as indirect evidence of the Plaintiffs' ADEA claims. See Coleman, 232 F.3d at 1283-1284 III. Because Plaintiffs Are Able to Establish Age Discrimination, Their AWPA Claims Must Be Sustained Plaintiffs' AWPA claims are based upon Defendants' termination of their employment based on age discrimination. Because Plaintiffs have provided enough evidence to survive summary judgment on their ADEA claim, this Court must also sustain their AWPA claims. IV. Because it is a Question of Fact Whether Defendants Willfully Violated the ADEA, Defendants Request for Summary Judgment as to Plaintiffs' Claims for Liquidated Damages is Improper In ADEA cases, liquidated damages are available when a plaintiff proves that the employer "knew or showed reckless disregard for the matter of whether its conduct was prohibited by the ADEA." See Trans World Airlines, Inc. V. Thurston, 469 U.S. 111 (1985). Because Plaintiffs have provided enough evidence to establish a prima facie case of age discrimination under the ADEA and have also met their burden of producing enough evidence to demonstrate a triable issue of fact regarding pretext, summary judgment is improper on this issue. Whether the Defendants willfully violated the ADEA is a question of fact that is not appropriate for decision on summary judgment. Therefore, this Court should deny Defendants' request for summary judgment as to Plaintiffs' claims for liquidated damages. V. Phoenix-Agro Invest, Inc., Should Not Be Dismissed
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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

Phoenix-Agro Invest, Inc., was added as a party to this litigation by Order of this Court. Defendants have already had the opportunity to argue their opposition to the inclusion of Phoenix-Agro Invest as a party, and present no new facts or legal arguments in their summary judgment motion that indicate that Phoenix Agro-Invest is not a proper party. Therefore, this Court should deny Defendants' request that to dismiss Defendant Phoenix Agro-Invest as a party. VI. Conclusion Plaintiffs have established a prima facie case of age discrimination by providing some evidence that the Defendants knew that the workers who replaced them were substantially younger. Plaintiffs also have enough evidence to demonstrate a triable issue of fact regarding pretext for the nondiscriminatory reasons proffered by Defendants for their discharges to sustain their age discrimination claims. As such, taking all evidence in the light most favorable to the non-moving party, Defendants' motion for summary judgment must be denied as a matter of law. RESPECTFULLY SUBMITTED this 1st day of September, 2005. /s Kristina M. Campbell Kristina M. Campbell Pamela M. Bridge George H. McKay COMMUNITY LEGAL SERVICES Attorneys for Plaintiffs 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 Camelback Rd., Suite 900 Phoenix, Arizona 85016 /s Laura Smith

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