Free Response in Opposition to Motion - District Court of Arizona - Arizona

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J. Mark Ogden; AZ Bar No. 017018 [email protected] J. Greg Coulter; AZ Bar No. 016890 [email protected] Brandon A. Newton; AZ Bar No. 021565 [email protected] LITTLER MENDELSON A Professional Corporation Camelback Esplanade 2425 East Camelback Road, Suite 900 Phoenix, AZ 85016 Telephone: 602.474.3600 Facsimile: 602.957.1801 Attorneys for Defendants

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Abel Ruiz Diaz, Ubaldo Moreno, Piedad H. Renteria, Alejandro D. Mancilla, Plaintiffs, v. Eagle Produce Limited Partnership, Phoenix Agro Invest, Inc., SAM Management, Inc., Defendants.

Case No. CV03-2127 PHX-MHM DEFENDANTS' OPPOSITION TO PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT

Defendants Eagle Produce Limited Partnership ("Eagle Produce"), Phoenix Agro Invest, Inc. ("Phoenix Agro") and SAM Management, Inc. ("SAM") (collectively "Defendants"), by and through undersigned counsel, hereby oppose Plaintiffs' Motion for Partial Summary Judgment. I. INTRODUCTION Plaintiffs are seeking an order from the Court establishing that Eagle Produce is in a joint employment relationship with Phoenix Agro and SAM. Phoenix Agro and SAM,

however, cannot be liable to Plaintiffs under the Age Discrimination in Employment Act

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("ADEA") because they have less than 20 employees. Plaintiffs also may not be able to sue under the Migrant and Seasonal Agricultural Workers Protection Statute ("AWPA") because there might exist an issue of fact regarding whether or not they are seasonal workers. Even if Plaintiffs are seasonal agricultural workers, the AWPA joint employment factors demonstrate that Phoenix Agro and SAM are not joint employers. II. ARGUMENT A. Only Eagle Produce is an "Employer" Under the ADEA.

Plaintiffs' Motion fails to discuss the relevant standard for joint employment under the ADEA. The ADEA requires an "employer" to have at least 20 employees for each working day in each week, for not less than 20 calendar weeks in the year in which the discrimination occurred, or in the preceding calendar year. 29 U.S.C. §630(b). SAM at all relevant times had only one employee, Steve Martori ("Martori"). Plaintiffs' Statement of Facts ¶ 7. In June of 2002, Phoenix Agro began to employ the management level farm positions that were employed by Eagle Produce. No evidence exists showing how many employees were hired by Phoenix Agro in June 2002, creating an issue of fact for trial. For this reason, SAM cannot be a joint employer under the ADEA, and summary judgment cannot be granted regarding whether or not Phoenix Agro is a joint employer under the ADEA. B. Whether Plaintiffs are "Seasonal Workers, " Defined by 29 U.S.C. § 1802, Might Be a Material Issue of Fact.

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To be afforded the protections of the Migrant and Seasonal Agricultural Workers Protection Statute ("AWPA"), Plaintiffs must be migrant or seasonal workers as defined by 29 U.S.C. § 1802. Plaintiffs alleged in their Complaint, and Defendants admitted, that they were seasonal agricultural workers. Seasonal workers are defined as those individuals who are engaged in agricultural employment of a seasonal or temporary nature and are not required to be absent overnight from their permanent place of residence. 29 U.S.C. § 1802(10)(A). The crux of the analysis is whether the work performed by Plaintiffs was seasonal, or year round. -2-

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In Defendants' Motion for Summary Judgment, Defendants argued that layoffs and transfers were common in the department where Plaintiffs worked, the tractor department, because there were periods of time when not enough work existed for the entire department. Those seasonal slowdowns caused layoffs in the tractor department on a frequent basis. Defendants believe that Plaintiffs will attempt to refute this point in their Response to Defendants' Motion for Summary Judgment, which is due to the Court the same day as this Response.1 If the Court finds that a material issue of fact exists as to whether or not Plaintiffs had work available to them year round during their employment, it cannot grant Plaintiffs' Motion for Partial Summary Judgment regarding joint employment under the AWPA. If Plaintiffs are not seasonal workers, they cannot state a claim under the AWPA and whether or not Defendants are joint employers under AWPA becomes moot.2 C. Neither Phoenix Agro Nor SAM are Joint Employers under AWPA

Under the economics realities test, two categories of regulatory factors must be analyzed to determine joint employment: 1) control of the workers and the working conditions, and 2) control of payment and payroll. Phoenix Agro nor SAM are joint employers. 1. Regulatory Factors a. Control of Workers and Working Conditions Both categories show that neither

SAM determines the crops it wants Eagle Produce to grow and the amount of each crop. Plaintiffs' Statement of Facts ¶ 28. That is the extent of SAM's control over the farm workers employed by Eagle Produce. SAM does not instruct Eagle Produce on when to prepare the land for planting, what farming operations to perform on a given day, how many workers to hire, the hours or days each worker works, or which workers would do what tasks. The only instructions given are how much of each crop to grow. No evidence of
Plaintiffs' Statement of Facts Paragraph 36 supports this belief. The seasonal nature of Plaintiffs' employment differs from the major factor behind the layoffs that occurred at Eagle Produce in late 2001 and early 2002. The increased use of plastic mulch in 2001 and 2002 caused significantly less work to be available for the tractor department in early 2002 compared to previous years, resulting in more layoffs compared to past years.
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oversight by SAM exists. Plaintiffs, however, attempt to show supervision and control by stating that Martori supervised the supervisor of Plaintiffs' supervisor. No specific fact has been alleged stating that Martori did anything in his alleged supervision of Jimmy Byrd that affected Plaintiffs' work or conditions. Additionally, Martori's authority to terminate Byrd does not show that SAM or Phoenix Agro had and utilized the ability to alter the terms of Plaintiffs' employment. Other than asserting that Phoenix Agro employed management level employees months after Plaintiffs' employment ended, Plaintiffs have asserted no specific facts demonstrating Phoenix Agro's actual control over Plaintiffs or their working conditions. During Plaintiffs' entire employment, they were employed solely by Eagle Produce. Their supervisor, Owen Brandt, and his supervisor, Jimmy Byrd, were employed only by Eagle Produce during Plaintiffs' entire employment. Plaintiffs have not advanced any other specific factual evidence of control by Phoenix Agro.3 b. Control of Payments and Payroll

Plaintiffs advance that SAM had the authority to determine the pay rates of Plaintiffs. Martori, however, testified that whether SAM had the authority or not, it did not determine Plaintiffs' pay rates. Defendants' Statement of Facts in Opposition to Plaintiffs' Motion for Partial Summary Judgment ("DSOF") ¶ 1. Owen Brandt, an employee of Eagle Produce, determined whether or not Plaintiffs, and all members of the tractor department, received raises. DSOF ¶ 2. His decisions were approved by Jimmy Byrd, another Eagle Produce employee. DSOF ¶ 2. SAM had no role in the determination of Plaintiffs' hourly wages. John Redmond, an employee of Eagle Produce at the time, was in charge of payroll and payment of wages pertaining to Plaintiffs. Neither Phoenix Agro nor SAM had any role in the processing of payroll during Plaintiffs' employment. The fact that John Redmond maintained similar job duties when Phoenix Agro employed him in July 2002 does not impact whether SAM and Phoenix Agro were involved in Plaintiffs' payroll processing.
Plaintiffs state that Phoenix Agro "owns land" and "assets." Ownership of unknown land and assets does not provide a basis for finding joint employment.
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Eagle Produce is the only Defendant that controlled Plaintiffs' salaries and payment of wages. 2. Non-Regulatory Factors

Of the eight non-regulatory factors, very few apply to this situation. Those factors, combined with the regulatory factors demonstrate that SAM and Agro are not joint employers of Plaintiffs. a. Specialty Job on the Production Line an Integral Part of Alleged Employer's Business

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SAM provides management services to Eagle Produce, while Phoenix Agro sells produce. Plaintiffs' job of preparing farm land for planting has no relationship to SAM's business. It is unknown how Phoenix Agro's sale of produce is impacted, if at all, by Plaintiffs' work. These factors do not establish joint employment. b. Premises and Equipment

As partners in Eagle Produce, SAM and Phoenix Agro invest in Eagle Produce. That fact, however, has no bearing on a joint employer analysis because SAM and Phoenix Agro are being sued as individual entities, not as partners of Eagle Produce. As individual entities, this factor does not implicate a joint employment relationship with SAM or Phoenix Agro. The Court must consider whether or not Eagle Produce utilized resources that were owned by either Phoenix Agro or SAM. Plaintiffs have stated that Phoenix Agro owns assets and land, but whether Plaintiffs used those assets or land is unknown. SAM has no tangible assets. This factor indicates a lack of a joint employer relationship. c. Permanence in the Working Relationship

Plaintiffs were entirely dependent on Eagle Produce for work during their employment. SAM had a minimal role, if any, in that employment relationship. Phoenix Agro had no impact on Plaintiffs' working relationship with Eagle Produce. This factor indicates a lack of a joint employer relationship.

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Firmwide:80373860.1 046716.1003

3.

Summary

Consideration of all of these factors demonstrates that neither SAM nor Phoenix Agro are joint employers of Plaintiffs. Eagle Produce solely controlled the working relationship with Plaintiffs. III. CONCLUSION Phoenix Agro and SAM are not joint employers of Plaintiffs under the ADEA or the AWPA. Even if Plaintiffs establish the necessary factors showing joint employment, which they cannot, they must further show that they are "seasonal workers" under the AWPA and that SAM and Phoenix Agro are employers under the ADEA. RESPECTFULLY SUBMITTED this 1st day of September, 2005.

s/Greg Coulter J. Mark Ogden J. Greg Coulter Brandon A. Newton LITTLER MENDELSON Attorneys for Defendants

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: Kristina Campbell George H. McKay Community Legal Services 305 South Second Avenue Phoenix, AZ 85036-1538

s/ME Martin

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