Garcia v. Stemilt Ag Services LLC

Opinion

1 2

3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6

7 GILBERTO GOMEZ GARCIA, JONATHAN GOMEZ RIVERA, NO. 2:20-CV-0254-TOR 8 JOSE RODRIGUEZ LLERENAS, FRANCISCO MUNOZ MEDRANO, ORDER GRANTING DEFENDANT’S 9 SANDRO VARGAS LEYVA, MOTIONS FOR SUMMARY ALEJANDRO CHAVEZ MONROY, JUDGMENT AND DENYING 10 and VICTOR FRANCISCO PLAINTIFFS’ MOTION FOR PADILLA PLASCENCIA, as SUMMARY JUDGMENT 11 individuals and on behalf of all other similarly situated persons, 12 Plaintiffs, 13 v. 14 STEMILT AG SERVICES, LLC, 15 Defendant. 16 17 BEFORE THE COURT are Defendant’s Motion for Partial Summary 18 Judgment (Count Three) (ECF No. 306), Defendant’s Motion for Partial Summary 19 Judgment (Count Six) (ECF No. 309), and Plaintiffs’ Cross-Motion for Partial 20 Summary Judgment on FLCA Class Disclosure Claims (ECF No. 323). These 1 matters were submitted for consideration with oral argument on November 22, 2 2022. Andres Munoz and Maria Diana Garcia appeared on behalf of Plaintiffs.

3 Lance A. Pelletier and Maricarmen C. Perez-Vargas appeared on behalf of 4 Defendant. The Court has reviewed the record and files herein, and is fully 5 informed. For the reasons discussed below, Defendant’s Motion for Partial

6 Summary Judgment (Count Three) (ECF No. 306) is granted, Defendant’s Motion 7 for Partial Summary Judgment (Count Six) (ECF No. 309) is granted, and 8 Plaintiffs’ Cross-Motion for Partial Summary Judgment on FLCA Class Disclosure 9 Claims (ECF No. 323) is denied.

10 BACKGROUND 11 This case concerns H-2A farm workers who were employed by Stemilt in 12 Washington. On August 20, 2021, the Court certified the following Farm Labor

13 Contractor Act (“FLCA”) Class for claims raised under RCW 19.30.110(7): “All 14 Mexican nationals employed at Stemilt Ag Services, LLC in Washington, pursuant 15 to both the 2017 H-2A contract from January 16, 2017 through August 11, 2017 16 and the H-2A contract from August 14, 2017 through November 14, 2017” for the

17 following claim: “The claim that Defendant, as a farm labor contractor, did not 18 disclose, on a form prescribed by the director, furnished to each worker, at the time 19 of hiring, recruiting, soliciting, or supplying, whichever occurs first, a written

20 statement in English and any other language common to workers who are not 1 fluent or literate in English that contains a description of: The name and address of 2 the owner of all operations, or the owner’s agent, where the worker will be

3 working as a result of being recruited, solicited, supplied, or employed by 4 Defendant.” ECF Nos. 193 at 37, 290 at 21–22. On July 14, 2022, the Court 5 certified a FLCA Disclosure Class: “All Mexican nationals employed by Stemilt

6 Ag Services, LLC in Washington, pursuant only to the second H-2A contract from 7 August 14, 2017 through November 15, 2017 who received disclosures in violation 8 of RCW 19.30.110(2) and (7)(h) ” for the following claims: (1) “The claim that 9 Defendant, as a farm labor contractor, did not disclose to every person with whom

10 it dealt in the capacity of a farm labor contractor the amount of its bond and the 11 existence and amount of any claims against the bond” and (2) “The claim that 12 Defendant, as a farm labor contractor, did not disclose, on a form prescribed by the

13 director, furnished to each worker, at the time of hiring, recruiting, soliciting, or 14 supplying, whichever occurs first, a written statement in English and any other 15 language common to workers who are not fluent or literate in English that contains 16 a description of: The name and address of the owner of all operations, or the

17 owner’s agent, where the worker will be working as a result of being recruited, 18 solicited, supplied, or employed by Defendant.” ECF No. 290 at 20. 19 On November 2, 2022, Plaintiffs filed a Fifth Amended Complaint based on

20 the parties’ stipulation to dismiss the Washington Law Against Discrimination 1 claim. ECF Nos. 332, 339. At oral argument, Defendant asserted Plaintiffs 2 Gomez Garcia and Gomez Rivera are the only remaining Plaintiffs as the others

3 were left out of the Fifth Amended Complaint. Plaintiffs asserted the omission 4 was an error. On November 23, 2022, Plaintiffs filed a corrected Fifth Amended 5 Complaint adding the original Plaintiffs in the body of the Complaint but

6 replicating the incorrect caption. ECF No. 345. 7 Defendant filed the present Motions for Summary Judgment on Plaintiffs’ 8 individual TVPA Visa Withholding and FLCA Class Disclosure Claims. ECF 9 Nos. 306, 309. Plaintiff filed a Cross Motion for Summary Judgment on the FLCA

10 Class Disclosure Claims. ECF No. 323. The parties fully briefed each motion. 11 ECF Nos. 316, 318, 326, 329, 333, 340. Except where noted, the following facts 12 are not in dispute.

13 FACTS 14 Defendant Stemilt AG Services, LLC (“Stemilt”) is a Washington Limited 15 Liability Company that is a wholly-owned subsidiary of Stemilt Growers, LLC. 16 ECF No. 307 at 2, ¶¶ 1–2. Stemilt employs the orchard work force that picks the

17 majority of the apples that Stemilt packs and sells. Id., ¶ 3. In 2017, Stemilt’s 18 growing operations farmed 5, 219 acres. Id., ¶ 4. Stemilt employs more than 19 2,000 individual orchard workers each year. Id., ¶ 5. Stemilt has been a licensed

20 Washington State farm labor contractor since 2016. ECF No. 310 at 4, ¶ 11. 1 In 2017, Stemilt employed both domestic workers and guest workers under 2 the federal H-2A program. ECF No. 307 at 2, ¶ 6. Stemilt assigned the task of

3 bringing the H-2A program in-house to Elizabeth Hernandez, who was Stemilt’s 4 Human Resources Manager of Employee Relations. Id., ¶ 11. Ms. Hernandez 5 traveled to Nogales, Mexico in 2016 to observe the process of recruitment,

6 transportation, housing, daily sustenance, immigration interviews, border crossing, 7 and everything else involved in the process. Id. at 4, ¶ 12. Ms. Hernandez 8 provided Disclosure Statements to each worker in Mexico. ECF No. 310 at 5, ¶¶ 9 15–18. Plaintiffs dispute that the FLCA disclosures were provided on the first

10 contract in Mexico, if at all. ECF No. 319 at 10–11, ¶¶ 15, 17–18, 20. 11 The Disclosure Statement that identifies (a) Stemilt Ag Services, LLC as the 12 “Employer” and (b) the address at which both the Employer could be reached.

13 ECF No. 310 at 5, ¶ 13. The individual Plaintiffs signed the Disclosure 14 Statements. Id. at 6, ¶¶ 20–23. Plaintiffs disputed that Plaintiffs signed the 15 disclosures on the grounds that only the second page of the disclosure (which is 16 signed) was provided and that a separate acknowledgement form was not provided,

17 but was provided in 2016. ECF No. 319 at 11–13, ¶¶ 20–23. 18 Stemilt owns Ice Harbor where Plaintiffs Gomez Rivera and Rodriguez 19 Llerenas worked. ECF No. 310 at 7, ¶¶ 28. Stemilt had Management Agreements

20 with Juniper Visa Orchard (“JVO”), Saddle Mountain West, LLC, KTW, and 1 Arrow Ridge (through Monkey Ridge, LLC) that designated Stemilt as agent for 2 management operations. ECF Nos. 310 at 7–9, ¶¶ 29–39, 319 at 17, ¶ 38.

3 Plaintiffs dispute these agreements made Stemilt an “agent” for purposes other 4 than farming, including for the purpose of accepting service; the entities’ registered 5 agent was a law firm as listed with the Washington Secretary of State. ECF No.

6 319 at 14–17, ¶¶ 30–31, 34, 37, 39. 7 Stemilt had a Lease Agreement with TKM Radar Hill where Stemilt was 8 responsible for “all expenses and production costs for growing and harvesting” 9 fruit grown on the orchard and Stemilt was the exclusive owner of the fruit. Id. at

10 9, ¶¶ 40–41. Plaintiffs dispute the lease agreement is enforceable where Defendant 11 only provided a draft form that is not signed. ECF No. 319 at 18, ¶ 40–41. 12 In 2017, Stemilt submitted Applications for Alien Employment

13 Certifications to the United States Department of Labor, with copies of the Form 14 ETA 790 Clearance Orders describing the terms and conditions of the employment 15 offered, for two consecutive contracts. Id., ¶ 14. Plaintiff disputes the 16 characterization of “consecutive contracts” where the second contract had different

17 dates, jobs, wages, hours, and orchards. ECF Nos. 317 at 4, ¶ 14, 319 at 6–7, ¶ 10. 18 Defendant asserts the workers on both contracts were continuous employees on the 19 grounds that (1) workers were only asked to complete I-9s, W-4s, meal waivers,

20 emergency contact information, and direct deposit information once at the 1 beginning of the first contract, (2) the workers were treated as continuous 2 employees for payroll purposes where payroll bank deposits occurred without

3 interruption between the contracts, and (3) Stemilt paid L&I and ESD premiums 4 for workers continuously, (4) workers remained in housing continuously, (5) 5 workers continued to have access to Stemilt resources, and (6) no workers payrolls

6 indicated a separation or gap in employment such as “quit”, “discharged”, or “end 7 of season”. ECF No. 310 at 3–4, ¶ 10. 8 The January 2017 H-2A workers’ first contract called for H-2A workers to 9 perform preseason apple tasks like pruning and thinning, and completion of the

10 cherry harvest. ECF No. 307 at 4, ¶ 16. 11 During summer 2017, Stemilt provided all H-2A workers the opportunity to 12 remain in the United States to work the harvest under a second contract that ran

13 from August 14, 2017 to November 17, 2017. Id. at 5, ¶¶ 17–18. Plaintiffs assert 14 Stemilt verbally recruited all H-2A workers to work under the second contract with 15 HR staff visiting work sites. ECF No. 317 at 6, ¶ 18. HR used a document titled 16 “Extension of Contract” that stated upon signing, workers “accept the terms of the

17 new contract (duration of the contract, new obligations and locations, etc.).” Id. 18 On August 2, 2017, Ms. Hernandez, the Stemilt employee responsible for 19 renewing H-2A worker visas, applied to extend 800 worker visas who elected to

20 carry over from the first contract, as well as additional applications for the 359 1 workers on the second contract only. ECF No. 307 at 5–6, ¶¶ 20–21, 23. Plaintiffs 2 dispute the number of applications where Ms. Hernandez declared there were 377

3 applications on the second contract. ECF No. 317 at 8, ¶ 20. United States 4 Citizenship and Immigration Services (“USCIS”) is responsible for processing H- 5 2A worker visas. ECF No. 307 at 6, ¶ 24. On August 2 and 8, 2017, USCIS

6 approved the visa requests for the workers working the second contract only. Id., ¶ 7 25. Stemilt provided the approved visas to these workers in August 2017. ECF 8 No. 307 at 6 ¶ 26. USCIS did not immediately process the applications for 9 workers working both contracts because one worker had been convicted of a DUI

10 and USCIS required that worker to be deported before it would process the 11 application. Id., ¶ 27. 12 On October 5, 2017, USCIS processed and approved the visa extension for

13 eligible workers, including the 787 who extended to the second contract. Id. at 7, ¶ 14 28. Plaintiffs again dispute the number of workers. ECF No. 317 at 9, ¶ 28. Ana 15 Guerrero, Stemilt Human Resources employee for the Pasco region, was 16 responsible for providing the workers with the updated work permits and visas.

17 ECF No. 307 at 6, ¶ 32. Defendant contends Ms. Guerrero immediately provided 18 the permits and visas to workers upon receiving them in October 2017, as is 19 Stemilt’s policy and practice. Id., ¶¶ 33, 34. Plaintiffs dispute Ms. Guerrero

20 “immediately” provided the visas. ECF No. 317 at 10–11, ¶ 33. Plaintiffs assert 1 Ms. Guerrero told Ice Harbor H-2A workers the renewed visas “had arrived but 2 [Stemilt] just did not want to give them to us.” Id. at 11.

3 All individual Plaintiffs received their permits and visas in October 2017, 4 except for Plaintiff Gomez Rivera who did not receive a renewed work permit after 5 abandoning employment on October 18, 2017. Id. at 8–9, ¶¶ 37–42. Plaintiffs

6 dispute Gomez Garcia “abandoned” employment because he was forced to leave 7 and assert that he received his renewed visa prior to leaving. ECF No. 317 at 14– 8 15, ¶ 37. Plaintiffs also clarify that the visas were provided at the “end” of 9 October. Id. at 16, ¶ 42.

10 DISCUSSION 11 I. Summary Judgment Standard 12 The Court may grant summary judgment in favor of a moving party who

13 demonstrates “that there is no genuine dispute as to any material fact and that the 14 movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In ruling 15 on a motion for summary judgment, the court must only consider admissible 16 evidence. Orr v. Bank of America, NT & SA, 285 F.3d 764 (9th Cir. 2002). The

17 party moving for summary judgment bears the initial burden of showing the 18 absence of any genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 19 317, 323 (1986). The burden then shifts to the non-moving party to identify

20 specific facts showing there is a genuine issue of material fact. See Anderson v. 1 Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). “The mere existence of a scintilla 2 of evidence in support of the plaintiff’s position will be insufficient; there must be

3 evidence on which the jury could reasonably find for the plaintiff.” Id. at 252. 4 For purposes of summary judgment, a fact is “material” if it might affect the 5 outcome of the suit under the governing law. Id. at 248. Further, a dispute is

6 “genuine” only where the evidence is such that a reasonable jury could find in 7 favor of the non-moving party. Id. The Court views the facts, and all rational 8 inferences therefrom, in the light most favorable to the non-moving party. Scott v. 9 Harris, 550 U.S. 372, 378 (2007). Summary judgment will thus be granted

10 “against a party who fails to make a showing sufficient to establish the existence of 11 an element essential to that party’s case, and on which that party will bear the 12 burden of proof at trial.” Celotex, 477 U.S. at 322.

13 II. TVPA Visa Withholding Claims 14 Defendant moves for summary judgment on Plaintiffs’ individual TVPA 15 Visa Withholding claims. ECF No. 306. 16 The TVPA prohibits a person from “knowingly destroy[ing], conceal[ing],

17 remov[ing], confiscate[ing], or possess[ing] any actual or purported passport or 18 other immigration document, or any other actual or purported government 19 identification document, of another person …. with intent to violate section 1589

20 [or] to prevent or restrict or attempt to prevent or restrict, without lawful authority, 1 the person’s liberty to move or travel, in order to maintain the labor or services of 2 that person, when the person is or has been a victim of a severe form of trafficking

3 in persons.” 18 U.S.C. § 1592(a). 4 It is undisputed USCIS approved the visa extensions on October 5, 2017. Id. 5 at 7, ¶ 28. While the exact date is disputed, it is undisputed Plaintiffs received their

6 permits and visas in October 2017. Id. at 8–9, ¶¶ 37–42; ECF No. 317 at 14–15, ¶ 7 37. No reasonable trier of fact could conclude Defendant knowingly withheld 8 Plaintiffs’ updated work permits in order to maintain Plaintiffs’ labor or services, 9 especially where Plaintiffs received the permits even when they ended their

10 employment. Therefore, summary judgment on this claim is appropriate 11 III. FLCA Disclosure Claims 12 Defendant moves for summary judgment on Plaintiffs’ class-certified FLCA

13 claims for (1) whether Defendant was required to provide a second FLCA 14 disclosure on the second contract for workers who worked the first contract, and 15 (2) whether the FLCA disclosures properly disclosed bond and owner information. 16 ECF No. 309. Plaintiffs cross-moves for summary judgment. ECF No. 323.

17 A. Second Disclosure 18 The FLCA requires farm labor contractors1 to provide workers FLCA 19

1 The parties do not dispute Defendant is a “farm labor contractor”. 20 1 disclosures “at the time of hiring, recruiting, soliciting, or supplying, whichever 2 occurs first.” RCW 19.30.110(7). FLCA is “a remedial statute designed to prevent

3 worker exploitation … [and] is generally construed liberally to further this 4 purpose.” Saucedo v. John Hancock Life & Health Ins. Co., 185 Wash. 2d 171, 5 183 (2016).

6 FLCA does not define the term “recruiting”. Washington courts give 7 undefined terms “their usual and ordinary meaning and interpret them in the 8 context of the statute in which they appear.” SEIU Healthcare 775NW v. Dep’t of 9 Soc. & Health Servs., 193 Wash. App. 377, 399 (2016). “Recruit” is defined as

10 “[a] new member of an organization, team, or group of people, esp. as the result of 11 formally joining.” Black’s Law Dictionary, (10th ed., 2014). 12 The parties dispute whether workers who worked both contracts should have

13 received a second FLCA disclosure on the second contract. Defendant asserts a 14 second disclosure was not required on the grounds that the H-2A workers were 15 “continuous employees.” ECF No. 309. Plaintiffs assert a second disclosure is 16 required because there were two separate contracts at issue with a period of

17 “recruitment” for the second contract in the summer of 2017. ECF No. 318. 18 It is undisputed H-2A workers who worked both contracts did not receive a 19 FLCA disclosure for the second contract. It is also undisputed Plaintiffs and class

20 members were recruited to work on the first contract. The statute does not require 1 that a disclosure be supplied upon each contract, only that a disclosure is provided 2 “at the time of hiring, recruiting, soliciting, or supplying, whichever occurs first.”

3 RCW 19.30.110(7) (emphasis added). The Court finds Defendant complied with 4 FLCA in providing one disclosure at the time of recruitment in 2017 on the first 5 contract for H-2A workers who worked both contracts.

6 Plaintiffs argue they were separately “recruited” to the second contract in the 7 summer of 2017. ECF No. 318. The Court finds Plaintiffs who worked both 8 contracts were recruited, i.e. became “new members” of or “formally joined”, 9 Defendant on the first contract. H-2A workers were not “recruited” where they

10 were already working for Defendant. Under these circumstances, the Court finds a 11 second disclosure was not required. With no material facts in dispute, summary 12 judgment on this claim is appropriate.

13 B. Bond Disclosure 14 A farm labor contractor must “[d]isclose to every person with whom he or 15 she deals in the capacity of a farm labor contractor the amount of his or her bond 16 and the existence and amount of any claims against the bond.” RCW 19.30.110(2)

17 It is undisputed the disclosures included Defendant’s $20,000 bond. See, 18 e.g., ECF No. 311-1 at 2. Plaintiffs maintain that Defendant is in violation of this 19 section by not disclosing “the existence and amount of any claims against the

20 bond.” ECF No. 318 at 9–10. It is undisputed there were no claims against 1 Defendant’s bond in 2017. ECF No. 326 at 3. Defendant cannot disclose claims 2 that do not exist. With no material facts in dispute, summary judgment on this

3 claim is appropriate. 4 C. Owner’s Agent Disclosure 5 A farm labor contractor must furnish a disclosure to each worker that

6 includes “[t]he name and address of the owner of all operations, or the owner’s 7 agent, where the worker will be working as a result of being recruited, solicited, 8 supplied, or employed by the farm labor contractor.” RCW 19.30.110(7)(h). 9 FLCA does not define the term “agent”. “Agent” is defined as one “who is

10 authorized to act for or in place of another.” Black’s Law Dictionary, Agent (10th 11 ed., 2014). 12 It is undisputed Defendant is the owner of Ice Harbor. ECF No. 319 at 14, ¶

13 28. As to the remaining orchards, the parties dispute whether Defendant qualifies 14 as the “owner’s agent” for purposes of this section. ECF Nos. 309, 323. 15 Defendant had management agreements with JVO, Saddle Mount West, KTW, and 16 Arrow Ridge that expressly defined Defendant as an agent for farm management

17 and operations. ECF No. 310 at 7–9, ¶¶ 30, 34–35, 37, 39. Defendant had an 18 Orchard Lease Agreement with TKM Radar Hill where Defendant was responsible 19 for “all expenses and production costs for growing and harvesting” and designated

20 1 Defendant as the exclusive owner of all fruit produced on the orchard. Id. at 9, ¶¶ 2 40–41.2

3 Plaintiffs argue the “agent” must be one that accepts service of summons by 4 pointing to another statute. ECF No. 318. RCW 19.30.030(f) requires a farm labor 5 contractor to appoint an agent “as [their] lawful agent to accept service of

6 summons ….” Where this statute specifies that a “lawful agent” is one who 7 accepts service of summons is an indication the Washington Legislature did not so 8 limit the term “agent” in RCW 19.30.110. See Densley v. Dep’t of Ret. Sys., 162 9 Wash. 2d 210, 219 (2007) (“When the legislature uses two different terms in the

10 same statute, courts presume the legislature intends the terms to have different 11 meanings.”). 12 The Court finds Defendant qualifies as an “agent” under the plain meaning

13 of the word as set out in RCW 19.30.110(7)(h). Defendant was either the owner 14 of, or had agency authority over, all relevant orchards pursuant to the management 15 and leasing agreements. With no issues of material fact in dispute, summary 16 judgment on Plaintiffs’ FLCA Disclosure claims is appropriate.

2 Plaintiffs only object to this agreement on the grounds that it is not signed. 18 The Agreement is signed by TKM’s manager and Plaintiffs do not provide 19 evidence otherwise disputing the contractual relationship. ECF No. 96-8. 20 l The Court denies as moot Plaintiffs’ pending Motion to Approve Proposed Class Notice (297) where the certified class claims are dismissed on summary judgment. 4|| ACCORDINGLY, IT IS HEREBY ORDERED: 5 1. Defendant’s Motion for Partial Summary Judgment (Count Three) (ECF 6 No. 306) is GRANTED. 7 2. Defendant’s Motion for Partial Summary Judgment (Count Six) (ECF 8 No. 309) is GRANTED. 9 3. Plaintiffs’ Cross-Motion for Partial Summary Judgment on FLCA Class 10 Disclosure Claims (ECF No. 323) is DENIED. 11 4. Plaintiffs’ claims Individual TVPA Visa Withholding Claims and Class 12 Certified FLCA Disclosure Claims are DISMISSED with prejudice. 13 5. Plaintiffs’ Motion to Approve Proposed Notice to Class (ECF No. 297) is 14 DENIED as moot. 15 The District Court Executive is directed to enter this Order and furnish 16]|| copies to counsel. 17 DATED November 23, 2022.

Ws. gp a fines, Ok ee 19 Oe Ke THOMAS O. RICE <=> United States District Judge 20

ORDER GRANTING DEFENDANT’S MOTIONS FOR SUMMARY JUDGMENT AND DENYING PLAINTIFFS’ MOTION FOR SUMMARY