Camilo Echavarria PARTNER
Los Angeles T 213.633.6800 Partner-in-Charge, Los Angeles F 213.633.6899 Diversity Executive Council E [email protected]
Education I get excited by figuring out the best strategy to solve my client’s J.D., New York University School employment problems while minimizing the pain involved. of Law Camilo Echavarria is a fixer – he handles his client’s employment problems so B.A., Government, Economics, that they can focus on their business and do what is most important to them. Cornell University, magna cum laude Camilo gives practical advice to his clients on how to deal with and manage litigation in a way that best serves them. He does not over-litigate. Instead, Admitted to Practice Camilo works up the cases quickly, provides concrete case assessments, and makes strategic decisions to further his client’s goals in the litigation. California U.S. District Court Central District For over 20 years, Camilo has worked with large and medium-sized employers of California in California to defend them in employment lawsuits — from single-plaintiff to U.S. District Court Eastern District class action cases. He also provides his clients with practical employment advice of California in their day-to-day operations and helps them navigate California’s complicated employment laws while understanding the need to run a profitable and U.S. District Court Southern successful business. With two decades of experience including over three years District of California as in-house counsel for NBC Universal, Camilo has firsthand knowledge of U.S. District Court Northern District cost-effective ways to partner with clients and provide responsive, results- of California oriented counsel. For example, Camilo has developed numerous alternative fee arrangements for his corporate clients, enabling them to reduce legal spend and Languages maintain budget predictability. Spanish
Practice Highlights
Single plaintiff litigation Defending healthcare, financial services, and airlines/cruise lines in hundreds of single-plaintiff employment cases throughout California. Successful results include obtaining summary judgment, defense verdicts at trial, and very favorable settlements. All summary judgment victories have been upheld on appeal. Has represented Providence Health & Services, Sonic Healthcare, Bank of America, 24 Hour Fitness, and United Airlines.
Class action and multiplaintiff defense Defending class-action cases regarding all aspects of California’s wage and hour laws, as well as claims brought under the Unruh Act and California’s Private Attorney General Act (PAGA), involving claims related to a wide range of issues including meal and rest breaks, overtime, pay stub violations, penalties, bonuses, off-the-clock work, business expenses, independent contractor, joint employment, improper classification of employees, and gender price discrimination.
Employment advice and counseling Counseling client to develop policies and practices to manage risk, including advising on termination, leaves of absence, workplace investigations, handbooks, and timekeeping and pay practices.
Experience
Single-Plaintiff Litigation
Hernandez v. Bank of America Won summary judgment in wrongful termination and discrimination case brought by former 30-year employee. Currently
Davis Wright Tremaine | DWT.COM on appeal. (2018)
Castro v. Bank of America Won summary judgment in wrongful termination and retaliation case brought by former 40-year employee. (2018)
Dismissal of discrimination case for Providence Health & Services Former Providence Health & Services employee filed claims of discrimination based on immigration status after she was terminated. Obtained dismissal of all claims on behalf of the client after a hearing before the Office of the Chief Administrative Hearing Officer (OCAHO). (2018)
Andrew v. Providence Health & Services Defended large healthcare provider in a single-plaintiff wrongful termination and disability discrimination case. Successfully resolved case early in litigation on terms favorable to the client. (2016)
Zipkin v. Kaiser Foundation Health Plan, Inc., Southern California Permanente Medical Group et al. Trial counsel in a case brought by a longtime physician partner of Southern California Permanente Medical Group with 13 causes of action alleging, among other accusations, unlawful retaliation, violation of public policy, violations of the Cal. Health & Safety and Business & Professions Codes, defamation, and emotional distress. After a three week trial, the judge returned a complete defense verdict for all defendants on all claims. (2017)
Afont v. Alaska Airlines Won summary judgment in wrongful termination case involving claims of harassment, retaliation, and disability discrimination. Successfully defended appeal with the court affirming summary judgment ruling. (Cal. Super. Ct. 2014; Cal. Ct. App. 2016)
Former physician v. Southern California Permanente Medical Group Won directed verdict in arbitration in age discrimination and harassment case brought by former physician. (AAA Arbitration 2015)
Ghadery v. 24 Hour Fitness, Lucatuorto v. 24 Hour Fitness, Tooley v. 24 Hour Fitness Defended 24 Hour Fitness in race and age discrimination and retaliation lawsuits brought by former employees. Successfully compelled arbitration and, after limited discovery, resolved actions. (ADR Arbitration 2016)
Winston v. Countrywide Home Loans, Bank of America Corp. Co-trial counsel for defendants in a month-long trial for fraud and wrongful discharge claims brought by former Countrywide executive. Obtained defense verdict on all but one claim. Led the successful appeal. The Court of Appeals found for the defense on the final claim and reversed the judgment in full (without a new trial) finding that substantial evidence did not support the jury’s verdict. Plaintiff’s petition for review to California Supreme Court denied. (Cal. Super. Ct. 2011; Cal. App. & Supreme Ct. 2013)
Lenge v. Charter Communications Won summary judgment in wrongful termination case involving claims of disability discrimination, failure to accommodate, and retaliation. Employee-plaintiff had dyslexia and was terminated after refusing to return from medical leave. Court found plaintiff’s complaint failed on all seven claims. (C.D. Cal. 2013)
Davis Wright Tremaine | DWT.COM Fazeli v. Bank of America, N.A. Won summary judgment for Bank of America in retaliation claim brought by former banking center manager. Wrote successful motion for summary judgment and argued the appeal. Successfully defended appeal with the 9th Circuit affirming summary judgment ruling. (C.D. Cal. 2011, 9th Cir. 2013)
Class Action and Multi-Plaintiff Defense
Nine employees v. Providence Health & Services Successfully defended Providence in multi-plaintiff action involving meal and rest break claims while being on-call. (2018)
Noe, et. al. v. Sarnoff, et. al. Representing national concessions and entertainment clients in wage and hour class action brought on behalf of concessionaires at various sport arena locations in California alleging they were improperly classified as independent contractors and other claims. (L.A. Cty (Cal.) Super. Ct. 2017)
Long v. Playboy Enterprises, Inc. Obtained summary judgment for defendant in Unruh Act class action brought on behalf of all males in California alleging gender price discrimination connection with third party charitable events held at the Playboy Mansion. Summary judgment upheld by 9th Circuit Court of Appeal. (C.D. Cal., 9th Cir. 2014)
Khoshnood, Lalwani & Shahwan v. Bank of America, N.A. Defended Bank of America in federal court in wrongful termination, race discrimination, and retaliation case filed by three former banking center managers. (2013)
In re KPMG overtime litigation Defended KPMG in nationwide consolidated wage and hour class actions alleging improper classification of unlicensed accounting employees. (2012)
Campbell v. American Express, Conde Nast Publications, et al. Obtained summary judgment as lead defense counsel in class action brought on behalf of all males in California against eight corporate defendants alleging violations of the Unruh Act (gender discrimination) and Gender Tax Repeal Act in connection with a "Women's Golf Month" event. (2012)
Rojas v. Shell Oil, et al. Defended wage and hour class action brought against nine petroleum refinery defendants alleging violations of Labor Code section 2810 and related wage statutes. Motion to dismiss under FRCP 12(b)(6) granted, and case dismissed on pleadings. (2009)
Health Care and Business Litigation
Hillsides Home for Children v. State of California, et. al., Hathaway-Sycamores Child & Family Services v. State of California, et. al., Five Acres – The Boys & Girls Aid Society of LA County v. State of California, et. al. Successfully reversed adverse judgment on appeal and settled all claims for three mental healthcare providers in disputes with the state of California involving failure to pay thousands of Medi-Cal claims. Wrote appellate brief and argued appeal. (LASC 2011, Ct. of Appeals 2012)
NuboNau, Inc. v. NB Labs, LTD, et. al.
Davis Wright Tremaine | DWT.COM Represented UK company in trademark case brought in the Southern District of California. Successfully moved to dismiss action for lack of personal jurisdiction. (2012)
Healthcare litigation for consortium of 18 mental healthcare providers Represented a consortium of 18 mental healthcare providers in a dispute with the County of Los Angeles and the state of California involving the implementation of a faulty Medi-Cal billing system. (2009)
The Fulcrum Group v. Pacific Health Corporation, et al.; The Fulcrum Group v. Scripps Health Prosecuted contract actions against Pacific Health, Scripps Health, and subsidiary hospitals. Both cases were successfully resolved prior to trial. (2008, 2009)
Memberships & Affiliations
Partner in Charge, Los Angeles, Davis Wright Tremaine LLP, 2019 Chair of Committee, 2018; Diversity & Inclusion Committee, Davis Wright Tremaine LLP Associate Development Partner, Employment Practice Group, Davis Wright Tremaine LLP Co-Chair of Board of Directors, California Minority Counsel Program Board of Trustees, Mexican American Bar Foundation Board of Directors, LK Health, a nonprofit FQHC clinic Regional President, Southern California, 2014-2016; Member; Hispanic National Bar Association
Professional Recognition
Named one of the "Top Latino Lawyers" by Latino Leaders Magazine, 2018 Named one of the "Most Influential Minority Attorneys in Los Angeles," Los Angeles Business Journal, 2018 Named to "Top 100 Under 50 Diverse Executive Leaders," by Diversity MBA Magazine, 2015 Winner, 2015 Corporate LiveWire – Global Awards, Arbitration, Los Angeles Selected to "California’s 75 Top Labor and Employment Lawyers," Daily Journal, 2014 Selected to "Southern California Rising Stars," Thomson Reuters, 2007-2011
Background
Litigation Counsel, NBC Universal Inc., 2003-2006 Litigation Associate, Morrison & Foerster LLP, 1997-2003
Insights
9th Circuit Holds CBA Preempts California Overtime Claims, 02.05.19 Camilo Echavarria Named One of the Country’s Top Latino Lawyers, 01.03.19 Changes to Minimum Wage Laws in 2019 Will Affect Nonexempt and White Collar Employees, as Well as Commissioned Inside Salespeople, 12.17.18 2018 Labor & Employment Law Update for New York-Area Clients, Davis Wright Tremaine, New York, N.Y., 05.17.18 Los Angeles Employment Law Seminar, Davis Wright Tremaine, Los Angeles, 04.19.18 L.A. Business Journal Names Camilo Echavarria One of the City's Most Influential Minority Attorneys, 01.22.18 "Hiring Smart, Disciplining Effectively, and Knowing When to Fire," California Association of Health Facilities, Palm Springs, Calif., 11.12.17 Co-author, "The Difficulty With Classifying Employees as Exempt," Law360, 08.29.17 9th Circuit: Mortgage Underwriters Are Not Exempt, 08.07.17
Davis Wright Tremaine | DWT.COM The Likely Unintended Consequence of President Trump’s Religious Freedom Executive Order, 06.14.17 "Nuts and Bolts of Preparing Successful Summary Judgment Motions," DWT Employment Training Series, 11.16.16 “Round” At Your Own Risk – Timekeeping “Rounding” Requirements Clarified, 05.17.16
Davis Wright Tremaine | DWT.COM NICOLE HANCOCK HUSBAND, ESQ.
Nicole Hancock Husband is Vice President of Human Resources for Warner Bros. Television where she is responsible for negotiating executive contracts, managing employee relations matters, and handling other generalist HR duties. Before joining the HR team in November 2015, Ms. Husband served as Vice President and Senior Employment Counsel for Warner Bros. Entertainment Inc. where she managed outside counsel (both domestically and internationally) in the defense of employment litigation, negotiated favorable resolutions of employment claims, and counseled clients on a wide range of day-to-day employment issues, including investigations.
Before joining Warner Bros. in April 2004, Ms. Husband was an associate at Jeffer, Mangels, Butler & Marmaro, where her practice focused on employment litigation. Prior to that Ms. Husband spent several years in the Labor & Employment department at Gibson, Dunn & Crutcher (in both Los Angeles and Washington, D.C.). Ms. Husband also clerked for The Honorable Gerald Bruce Lee, U.S. District Court Judge, Eastern District of Virginia, from 1998-99 and for The Honorable Gregory Kellam Scott, Supreme Court of Colorado, from 1996-97.
Ms. Husband graduated cum laude from Howard University School of Law in 1996 after having served as the Managing Editor of the Howard Law Journal and a member of the National Moot Court Team. Ms. Husband obtained her Bachelor of Science degree in Finance and International Business, with a minor in Spanish, from The Ohio State University in 1993.
Ms. Husband was the President of Black Women Lawyers Association of Los Angeles for the 2015-2016 bar year. She also served as an Advisory Board member for the Western Center on Law & Poverty for four years and taught a legal ethics/professional responsibility course entitled “Legal Profession” at Southwestern Law School for two summers.
In January 2012, Ms. Husband received her coaching certification through The Coaches Training Institute and is now a Certified Professional Co-Active Coach. Ms. Husband achieved this certification after completing over 100 hours of training in co-active coaching with CTI in 2009 and completing the six-month certification process with CTI in 2010.
In addition to spending time with her husband and daughter, Ms. Husband enjoys motivational speaking, Zumba, tennis, salsa dancing, and Words With Friends. U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Los Angeles District Office 255 E. Temple Street, 4th Floor Los Angeles, CA 90012 (213) 894-1083 FAX (213) 894-1301
Anna Y. Park
Anna Y. Park is the Regional Attorney for the Los Angeles District Office of the Equal Employment Opportunity Commission (“EEOC”). Ms. Park is one of fifteen Regional Attorneys tasked nationally to oversee and direct all employment discrimination litigation on behalf of the EEOC in her vast region which covers Southern California, Central California, Nevada, and the Pacific which includes Hawaii, Guam, American Samoa, Wake Island, and the Northern Mariana Islands.
Since joining the EEOC, Ms. Park has brought influential cases, receiving large monetary awards and designing comprehensive and innovative injunctive relief remedies to eliminate discrimination in the workplace. Ms. Park has been repeatedly recognized for her work on groundbreaking cases like EEOC v. Trans Bay Steel and EEOC v. Global Horizons, et al., challenging labor trafficking as a civil rights violation under federal anti-discrimination laws. She has also brought significant sexual harassment cases spanning a myriad of industries, including agriculture, construction, trucking, gaming, entertainment, garment, hospitality, food and beverage, travel, and janitorial services. The case of EEOC v. ABM Industries, Inc. et al., was featured on PBS’s Frontline: “Rape on the Night Shift”.
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Create a Respectful and Open THE CROWN Workplace for Natural hair ACT Act WHY DO WE NEED THE CROWN ACT? • https://twitter.com/i/status/121335225 4566207488 DOVE CROWN RESEARCH STUDY
Black women’s hair is 3.4x more likely to be viewed as unprofessional
“I have to change my hair from its natural state to fit in at the office.” Black women are 80% more likely to agree with this statement
Black women are 1.5x more likely to be sent home from work due to hairstyle
Black women are 30% more likely to be made aware of a workplace appearance policy WHY DO WE NEED THE CROWN ACT?
SB 188 Section 1(b) – SB 188 Section 1(d) – SB 188 Section 1(a) – laws and professionalism being linked to workplace dress code and societal norms that equate European features and grooming policies that “blackness” and associated mannerisms, requiring those prohibit natural hair and physical traits (dark skin, that don’t have them to alter thereby deter Black kinky/curly hair) to a badge of their appearance and applicants and employees inferiority conduct to be deemed and/or burden and punish “professional” them more than others THE CROWN ACT
• Introduced by Senator Holly J. Mitchell in JanUARY 2019
• Signed by Governor Newsom in July 2019
• Effective January 1, 2020 “race or ethnicity” includes ancestry, color, ethnic group identification, and ethnic WHAT background
DOES THE “race” is inclusive of traits Section 212.1 of the historically associated with Education Code is amended race, including, but not to read that: limited to, hair texture and CROWN protective hairstyles
ACT Section 12926 of the Government Code is “protective hairstyles” amended to include includes, but is not limited to, definition of race above and such hairstyles as braids, SAY? definition of protective locks, and twists hairstyles
AND IT’S NOT JUST WOMEN… New York State NYC was 1st 2nd state to February pass CROWN 2019 Act effective OTHER July 2019 JURISDICTIONS New Jersey – AND THE 3rd state to December 2019 - Sen. Cory Booker (D- enact the NJ) and Rep. Cedric CROWN ACT CROWN Act, Richmond (D-LA) signed into introduced the law in CROWN Act of 2019 in both chambers of December the U.S. Congress 2019 • The CROWN Coalition, which is dedicated to the advancement of anti- discrimination legislation across the United States SUPPORTERS • Members of the CROWN Coalition OF include: THE CROWN • Dove • Color of Change ACT • National Urban League • Western Center on Law & Poverty Grooming Policies that: EXAMPLES OF • Prohibit twists, locs, braids, cornrows, VIOLATIONS Afros, Bantu knots or fades, which are UNDER THE NYC commonly associated with Black people HRL ON HAIR • Require employees to alter the state of their hair to conform to the company’s DISCRIMINATION appearance standards, including having to straighten or relax hair (i.e., use chemicals or heat)
• Ban hair that extends a certain number of inches from the scalp, thereby limiting Afros EXAMPLES OF DISCRIMINATION UNDER THE NYC HRL ON HAIR DISCRIMINATION
01 02 03 04 05
Forcing Black people to Requiring only Black Telling a Black Refusing to hire a Black Mandating that a Black obtain supervisory employees to alter or employee with locs that applicant with cornrows employee hide his or approval prior to cut their hair or risk they cannot be in a because her hairstyle her hair or hairstyle with changing hairstyles, but losing their jobs customer-facing role does not fit the a hat or visor not imposing the same unless they change “image” the employer requirement on other their hairstyle is trying to project for people sales reps • WHY NOT? BECAUSE IT’S … • INVASIVE • MICRO-AGGRESSIVE PLEASE • MAKING ME FEEL DIFFERENT • INEQUITABLE DON’T ASK ME • CALLING MORE ATTENTION TO MY HAIR THAN I MIGHT LIKE IF YOU CAN • AWKWARD • MAKING ME HAVE TO CHOOSE BETWEEN TOUCH MY “BEING POLITE” AND STANDING UP FOR MYSELF HAIR… • NOT NECESSARILY SANITARY – WHERE HAVE YOUR HANDS BEEN IN THE LAST 5 MINUTES? • RACIALLY INSENSITIVE • Not respectful – hair is an appendage United States Equal Employment Opportunity Commission
EEOC TRENDS ANNA PARK REGIONAL ATTORNEY Charge Filing Trends
2019- Roughly 72,000 charges nationally, down from 76,000 intake in 2018. Retaliation 53.8% charges filed Disability 33.4% Sex 32.4% Age 21.4% Sex Harassment-recovery decade high of $68 million by EEOC. Disability Discrimination
Inflexible attendance and leave policies 100% fit for duty or heal policies or practice Failure to engage in the interactive process FMLA v. ADA still remains an issue Major Source of EEOC Litigation
4 EEOC v. Mueller EEOC v. Prestige EEOC v. Family Healthcare Network EEOC v. Nevada Restaurant Assoc. EEOC v. Magnolia EEOC v. Sentient EEOC v. Oceanic EEOC v. Lowes EEOC v. Nevada Restaurant Services
5 Company-wide 100% healed policy before returning to work. The practice or policy did not allow for engagement in the interactive process or providing reasonable accommodation.
Consent Decree entered and approved for $3.5 million and comprehensive injunctive relief remedies including an external consultant, ADA training, revision of policies and procedures, ADA tracking system, and reporting. EEOC v. Mueller Industries
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EEOC alleged that defendants maintained an improper maximum leave policy preventing leave as a reasonable accommodation which lead to the termination of employees.
Case resolved with a Consent Decree for $1 million and comprehensive injunctive relief remedies including reinstatement. Harassment Cases a Major Priority
7 EEOC v. Fairbanks Country Club EEOC v. Tapioca EEOC v. Sierra EEOC v. Pape Material Handling, Inc. EEOC v. Pacific Fun Enterprise, Inc.
EEOC v. Bornt & Sons and Barraza- $300,000 for class of farm worker women subjected to sex harassment EEOC v. Alorica
8 EEOC brought suit against a customer service company alleging young women were sexually harassed by male coworkers, supervisors, and managers. Male employees were also harassed by female employees. Case resolved for $3.5 million and comprehensive injunctive relief including compliance and civility training, nationwide audits, regional audits, hiring of internal and external consultants, and reporting. EEOC v. Centennial Food Corp, et al. (IHOP)
9 Several Franchisees of IHOP chain in Nevada and New York imposed an improper waiver of Title VII rights. Women were subjected to sexual harassment including touching, leering, and groping.
Ineffective mechanisms existed to address the harassment and toxic work environment throughout. Consent Decree and resolved for $700,000. Men Also Harassed
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Discovery Hawaii Tours- $570,000 for class of male claimants who were subjected to sex harassment by male CEO/owner.
Injunctive relief remedies in Consent Decree to ensure accountability of CEO, training, reporting, and oversight. Human Trafficking Worldwide Problem.. Trafficking a Commission Focus Trafficking- New Face of Discrimination
Victims can be low wage earners or high skilled workers Men, women, or children Can be in the U.S. under legitimate visas to work Oftentimes recruited by a labor contractor Charged large fees that are impossible to ever pay back Trafficking is a Civil Rights Violation
Not just a criminal violation
Title VII violation- mainly pursued under national origin and race discrimination
But can be pursued under any of the basis such as sex or retaliation, depending on circumstances EEOC Trafficking cases
EEOC v. Global Horizons, et al. (Los Angeles) EEOC v. Green Acre, et al. (Los Angeles) EEOC v. Trans Bay Steel Inc. (Los Angeles) EEOC v. Allied Signal (Birmingham) EEOC v. John Pickle Co. (Oklahoma) EEOC v. Global Horizons et al.
Largest cases brought on behalf of over 600 Thai farm workers against the L.A. farm labor contractor & farms for national origin discrimination, harassment, and retaliation. Largest case brought against the agricultural industry by the EEOC. Two actions filed in Court, Hawaii and Washington State EEOC v. Global Horizons, et al
EEOC filed two lawsuits, one in Hawaii and another in Washington EEOC named not only Global Horizons, the employer, but also the following farms: Del Monte MacFarms Kauai Coffee Captain Cook Coffee Kalena Farms Maui Pineapple Green Acre Valley Fruit
18 Facts
Farm Labor Contractor Global Horizons brought thousands of workers from Thailand as agricultural workers to work on a number of farms throughout the U.S. from 2003 through 2007.
Workers brought in under the H2A program and granted legitimate visas initially but Global violated the specific rules governing H2A workers.
Targeted Thai workers to exploit them.
19 Deliberately Targeted Vulnerable Workers
In 2005, Thai workers earned $4.34 a day or 175 baht. Laborers earned less a day at $4.21 a day. Charged $12,000 to $25,000 in fees to come to the US. More than they were able to ever pay back. Mortgaged family land, in some cases charged 50% interest on loan for promise of work in the US. Many of the Thai workers were illiterate in English and Thai. Facts Cont'd
Passports confiscated Some subjected to curfews and restricted in movement Paychecks with $0.00 Some were only given one meal a day consisting of a bowl of rice, a slice of pineapple and an egg. Others got nothing at all. Some were not given any food and had to hunt to eat Some hunted birds with rubber bands so they can eat Lived in overcrowded conditions varying in degree Lived in isolated areas Threatened Physical Abuse
21 What did we do
Cases brought as a pattern or practice national origin and race discrimination case Harassment, retaliation, terms and conditions
Findings made by the Courts recognizing the housing conditions, lack of food, lack of pay, can create a hostile work environment and constitute terms and conditions discrimination RESOLUTION
Consent Decrees entered with five of the farms, Del Monte, MacFarms, Kauai Coffee, Captain Cook Coffee, Kalena Farms. Disseminated over $3.6 million to Claimants. Judge in Hawaii found pattern and practice of national origin and race discrimination by Global Horizons and Maui Pineapple. Judgment Entered against Global Horizons for $12.3 million, offset by $3.6 million already recovered. With the Department of Justice for enforcement of judgment. Result in Hawaii
Hawaii $12.3 million and findings of liability against Global and Maui Pineapple $3.6 disseminated from settlements Washington But
Despite rendering a judgment against Global Horizons for over $7.6 Million, Two grower defendants dismissed Ordered sanctions against EEOC for bringing frivolous case EEOC appealed 9th Circuit Overturned Dismissal Reinstating Case 9th Circuit Ruling
Lower court erroneously limited evidence of orchard v. non orchard related activity in the case Joint Employer-established standard in the 9th Circuit Reinstated entire case that was appealed by the EEOC Overturned over $900,000 fees against the EEOC Found the case is not frivolous Take aways
Contractual agreements between an employer and a labor contractor does not limit joint employer liability
CONTROL, CONTROL, CONTROL
Exercised by one is also by the other if they “knew or should have known” and did nothing about it Can Not Turn A Blind Eye…
Growers possessed ultimate authority over those matters even though they delegated responsibility to Global Horizons and agreed to compensate Global for its services. Did nothing to withhold payment, when had that control so enough to allege joint employer. Changed Agriculture Industry
Changed the way the agricultural industry operates
Can no longer ignore what farm labor contractors do on their behalf
Impact beyond this case
Case set for trial May 2020 Yikes -- Accommodating a Service Or Emotional Support Animal? Americans With Disability Act & FEHA
Applies to private employers Requires employers to provide reasonable accommodations Prevents discrimination against disabled applicants and employees Does not distriguish between service animals or emotional support animals as a form of accommodation Service Animal Defined
A service animal is a dog or miniature horse that performs a task directly related to an individual’s disability Examples. directing blind person/alerting deaf person guiding/pulling wheelchair alerting to onset of seizure alerting as to low blood sugar reminder to take medication calm PTSD/anxiety attack To Accommodate or Not to Accommodate
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Is the applicant/employee disabled Can the applicant/employee perform the essential functions of the job with a reasonable accommodation Would the requested accommodation create an undue hardship to employer and if so is there another reasonable accommodation that can be implemented. Interactive Process
Figure out the appropriate/ reasonable accommodation. Both parties must participate. Employee entitled to “reasonable accommodations” not desired accommodation. Employer may request reasonable medical information to demonstrate employee has disability and needs accommodation. Undue Hardship
Disruptive Not under owner’s control. Poses a direct threat, i.e. significant risk to health or safety of others Workplace could be dangerous for animal. Workplace may require sterile environment. Adverse affect on employees (allergies, phobia) Adverse affect on customers. Best Practices
Understand that service and emotional support animals may be a reasonable accommodation. Don’t jump to conclusions. Treat request the same as any other request for accommodation. Take careful consideration as to whether an accommodation can be made. Accommodation does not end after allowing the animal into the workplace.
Case 2:18-cv-05729-GW-GJS Document 9 Filed 07/13/18 Page 1 of 31 Page ID #:61
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1 Anna Y. Park, SBN 164242 Sue J. Noh, SBN 192134 2 Rumduol Vuong, SBN 264392 3 Lorena Garcia-Bautista, SBN 234091 U.S. EQUAL EMPLOYMENT 4 OPPORTUNITY COMMISSION 255 East Temple Street, Fourth Floor 5 Los Angeles, CA 90012 6 Telephone: (213) 894-1083 Facsimile: (213) 894-1301 7 E-Mail: [email protected]
8 Attorneys for Plaintiff 9 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 10 11 UNITED STATES DISTRICT COURT 12 CENTRAL DISTRICT OF CALIFORNIA 13 U.S. EQUAL EMPLOYMENT ) Case No.: CV 18-5729-GW(GJSx) 14 OPPORTUNITY COMMISSION, ) ) 15 ) CONSENT DECREE AND ORDER Plaintiff, ) 16 ) vs. ) 17 ) ) 18 MUELLER INDUSTRIES, INC., AND DOES ) 1-10, INCLUSIVE, ) 19 ) Defendants. ) 20 ) ) 21 ) ) 22 ) ) 23 ) ) 24 ) ) 25 26 27 28
-1- Case 2:18-cv-05729-GW-GJS Document 9 Filed 07/13/18 Page 2 of 31 Page ID #:62
1 Plaintiff U.S. Equal Employment Opportunity Commission (the “EEOC” or 2 “Commission”) and Defendant Mueller Industries, Inc. and its subsidiaries hereby stipulate and 3 agree to entry of this Consent Decree (“Decree”) to resolve the Commission’s complaint against 4 Defendant in U.S. Equal Employment Opportunity Commission v. Mueller Industries, Inc., et al., 5 Case No. 2:18-cv-05729-GW-GJS (the “Action”). This Decree applies to Defendant Mueller 6 Industries, Inc.’s facilities nationwide, including but not limited to its following subsidiaries: 7 B&K, LLC; Extruded Metals, Inc.; Howell Metal Company, Inc. (only for conduct occurring 8 after October 17, 2013); Lincoln Brass Works, Inc.; Linesets, Inc.; Micro Gauge, Inc. dba 9 Microgauge Machining, Inc.; Mueller Brass Company; Mueller Brass Forging Company, Inc.; 10 Mueller Copper Tube Company, Inc.; Mueller Copper Tube Products, Inc.; Mueller Fittings 11 Company, Inc.; Mueller Fittings Company, LLC; Mueller Impacts Company, Inc.; Mueller 12 Packaging, LLC; Mueller Plastics Corporation, Inc.; Mueller Refrigeration, LLC; Mueller 13 Streamline, Co.; Overstreet-Hughes Co. Inc. dba Fabricated Tube Products; Precision Tube 14 Company, LLC; Propipe Technologies, Inc.; Sherwood Valve, LLC (only for conduct occurring 15 after June 18, 2015); Turbotec Products, Inc. (only for conduct occurring after March 30, 2015); 16 and Westermeyer Industries, Inc. (only for conduct occurring after August 12, 2012); and 17 Mueller Copper Tube West Co., (only for conduct occurring after March 20, 2017) (collectively 18 referred as “Defendant”). 19 On June 28, 2018, Plaintiff filed this Action in the United States District Court, Central 20 District of California, for violations of the Americans with Disabilities Act of 1990 (“ADA”), as 21 amended by the ADA Amendment Act of 2008 (“ADAAA”), and Title I of the Civil Rights Act 22 of 1991. The Action alleges Defendant discriminated against George Molina, Brandon 23 Pickelhaupt, and a class of similarly aggrieved individuals due to their disabilities when 24 Defendant failed to excuse disability-related absences, or provide additional time off as a 25 reasonable accommodation to individuals with disabilities, or individuals that were perceived as 26 disabled that lead to their termination. 27 // 28 //
-2- Case 2:18-cv-05729-GW-GJS Document 9 Filed 07/13/18 Page 3 of 31 Page ID #:63
1 I. PURPOSES AND SCOPE OF THE DECREE 2 A. The EEOC and Defendant (collectively, the “Parties”) agree that this Action 3 should be fully and completely resolved by entry of this Decree. This Decree shall be binding on 4 and enforceable against Defendant and its parents, subsidiaries, officers, directors, agents, 5 successors, and assigns. 6 B. The Parties have entered into this Decree for the following purposes: 7 1. To provide appropriate monetary and injunctive relief; 8 2. To ensure that Defendant’s employment practices comply with federal 9 law; 10 3. To ensure a work environment free from discrimination, specifically as it 11 relates to the manner in which leave of absence and attendance policies are 12 administered as to individuals with disabilities; 13 4. To modify Defendant’s leave of absence and attendance policies, 14 procedures, and practices regarding time away from work necessary for 15 individuals with disabilities; 16 5. To ensure training for Defendant’s employees with respect to the pertinent 17 laws regarding the interplay between leave of absence and attendance 18 policies and their applicability to individuals with disabilities; 19 6. To provide an appropriate and effective mechanism for handling 20 complaints related to the application of leave of absence and attendance 21 policies to individuals with actual or perceived disabilities who require 22 time off as an accommodation; 23 7. To ensure effective record-keeping procedures; and 24 8. To avoid the expensive and protracted costs incident to this litigation. 25 C. The scope of this Decree applies to Defendant’s facilities nationwide unless 26 otherwise indicated in this Decree. 27 // 28 //
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1 II. RELEASE OF CLAIMS 2 A. This Decree fully and completely resolves all issues, claims and allegations raised 3 by the EEOC against Defendant in this Action. 4 B. Nothing in this Decree shall be construed to preclude any party from bringing suit 5 to enforce this Decree in the event that any party hereto fails to perform the promises and 6 representations contained herein. 7 C. Nothing in this Decree shall be construed to limit or reduce Defendant’s 8 obligation to comply fully with the ADA, ADAAA, or any other federal employment statute. 9 D. This Decree in no way affects the EEOC’s right to bring, process, investigate, or 10 litigate charges that may be in existence or may later arise against Defendant in accordance with 11 standard EEOC procedures as this Decree only resolves the issues, claims, and allegations raised 12 by the EEOC against Defendant in this Action. 13 III. JURISDICTION 14 A. The Court has jurisdiction over the Parties and the subject matter of this Action. 15 The Action asserts claims that, if proven, would authorize the Court to grant the equitable relief 16 set forth in this Decree. 17 B. The terms and provisions of this Decree are fair, reasonable, and just. 18 C. This Decree conforms to the Federal Rules of Civil Procedure and the 19 ADA/ADAA, and is not in derogation of the rights or privileges of any person. 20 D. The Court shall retain jurisdiction of this action during the duration of the Decree 21 for the purposes of entering any order, judgment, or decree that may be necessary to implement 22 the relief provided herein. 23 IV. EFFECTIVE DATE AND DURATION OF DECREE 24 A. The provisions and agreements contained herein are effective immediately upon 25 the date which this Decree is entered by the Court (“the Effective Date”). 26 B. Except as otherwise provided herein, this Decree shall remain in effect for two 27 and a half (2.5) years after the Effective Date. 28 //
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1 V. MODIFICATION AND SEVERABILITY 2 A. This Decree constitutes the complete understanding of the Parties with respect to 3 the matters contained herein. No waiver, modification, or amendment of any provision of this 4 Decree will be effective unless made in writing and signed by an authorized representative of 5 each of the Parties. 6 B. If one or more of the provisions of the Decree are rendered unlawful or 7 unenforceable, the parties shall make good faith efforts to agree upon appropriate amendments to 8 this Decree in order to effectuate the purposes of the Decree. In any event, the remaining 9 provisions will remain in full force and effect unless the purposes of the Decree cannot, despite 10 the Parties’ best efforts, be achieved. 11 C. By mutual agreement of the Parties, this Decree may be amended or modified in 12 the interests of justice and fairness in order to effectuate the provisions of the Decree. 13 VI. COMPLIANCE AND RESOLUTION 14 A. The Parties agree that if the EEOC has reason to believe that Defendant has failed 15 to comply with any provision of this Decree, the EEOC may bring an action before this Court to 16 enforce the Decree. Prior to initiating such action, the EEOC will notify Defendant and its legal 17 counsel of record, in writing, of the nature of the dispute. This notice shall specify the particular 18 provision(s) that the EEOC believes Defendant has breached. Defendant shall have sixty (60) 19 days from the written notice to attempt to resolve or cure the breach. The Parties may agree to 20 extend this period upon mutual consent. 21 B. After sixty (60) days to resolve or cure the breach referenced in Section VI.A., 22 have passed from the written notice with no resolution or agreement to extend the time, the 23 EEOC may petition this Court for resolution of the dispute, seeking all available relief, including 24 an extension of the term of the Decree for such period of time that the Court finds the Decree 25 was not complied with and/or any other relief that the Court may deem appropriate. 26 C. In the event of exigent circumstances, EEOC may petition the Court for resolution 27 of the dispute without the adhering to provisions described in Section VI. 28 //
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1 VII. MONETARY RELIEF 2 Defendant agrees to pay a total gross sum of $1,000,000.00 to resolve this Action. The 3 total gross sum is inclusive of all individual monetary relief and “Class Fund” monetary relief, as 4 defined and specified below. The EEOC has full and complete discretion under the terms of this 5 Decree to determine who is a Claimant and to determine the amount and characterization of any 6 payment, if any, to the Charging Parties and/or Claimants. 7 A. Monetary Relief for Charging Parties and Identified Claimants 8 1. The EEOC shall provide to Defendant a Distribution List designating each 9 Charging Party and Identified Claimant’s portion and amount of monetary 10 relief, if any, as well as the name and address to which each Identified 11 Claimant’s portion and amount of monetary relief shall be delivered. 12 2. Within fifteen (15) business days of receiving the EEOC’s Distribution 13 List, Defendant shall send a check, via first class, certified mail, in the 14 amount designated in the EEOC’s Distribution List, to each Identified 15 Claimant. Within five (5) business days of mailing the afore-mentioned 16 payments, Defendant shall submit a copy of the checks and any related 17 correspondence as well as a report regarding the mailing of the checks to 18 Anna Y. Park, Regional Attorney, U.S. Equal Employment Opportunity 19 Commission, 255 East Temple Street, 4th Floor, Los Angeles, California 20 90012. The report shall show the amount of the check, the date the check 21 was mailed, the person to whom the check was mailed, and the address to 22 which the check was mailed. If Defendant becomes aware that any of the 23 checks issued in this case are returned or otherwise not executed, 24 Defendant shall immediately notify the EEOC and cooperate with the 25 EEOC to make ensure the checks are reissued. 26 3. The EEOC has designated that payments to the Identified Claimants will 27 be paid to each in a non-wage compensation check, and no tax 28 withholding shall be made. Defendant shall prepare and distribute 1099
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1 tax reporting forms to each Identified Claimant and shall make any 2 appropriate reports or payments for each to the Internal Revenue Service 3 and other tax authorities. Defendant shall be solely responsible for any 4 costs associated with the issuance and distribution of a 1099 tax reporting 5 form to the Identified Claimants. Within five (5) business days of the 6 issuance of any 1099 form, Defendant shall provide a copy of the related 7 correspondence to the Regional Attorney, Anna Y. Park, U.S. Equal 8 Employment Opportunity Commission, 255 East Temple Street, 4th Floor, 9 Los Angeles, CA 90012 10 B. “Class Fund” for Unidentified Claimants 11 1. The payment, if any, to the Unidentified Claimants shall be triggered by 12 the EEOC’s issuance of a Distribution List designating each Unidentified 13 Claimant’s portion and amount of monetary relief as well as the name and 14 address to which the checks are to be delivered. Anyone eligible to 15 receive monies shall be determined after a claims process is undertaken 16 which is set forth below. The EEOC has full and complete discretion 17 under the terms of this Decree to determine who is eligible and to 18 determine the amount of any payment, if any, to be given to an 19 Unidentified Claimant. 20 2. Within fifteen (15) business days of receiving the EEOC’s Distribution 21 List(s), Defendant shall send a check, via first class, certified mail, in the 22 amount designated in the EEOC’s Distribution List(s), to each 23 Unidentified Claimant at the addresses provided by the EEOC in its 24 Distribution List(s). Within five (5) business days of mailing the afore- 25 mentioned payments, Defendant shall submit a copy of the checks and any 26 related correspondence as well as a report regarding the mailing of the 27 checks to Anna Y. Park, Regional Attorney, U.S. Equal Employment 28 Opportunity Commission, 255 East Temple Street, 4th Floor, Los Angeles,
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1 California 90012. The report shall show the amount of the check, the date 2 the check was mailed, the person to whom the check was mailed, and the 3 address to which the check was mailed. If Defendant becomes aware that 4 any of the checks issued in this case are returned or otherwise not 5 executed, Defendant shall immediately notify the EEOC and cooperate 6 with the EEOC to make ensure the checks are reissued. 7 3. The EEOC has designated that payments to the Unidentified Claimants 8 will be paid to each in a non-wage compensation check, and no tax 9 withholding shall be made. Defendant shall prepare and distribute 1099 10 tax reporting forms to each Unidentified Claimant and shall make any 11 appropriate reports and payments for each to the Internal Revenue Service 12 and other tax authorities. Defendant shall be solely responsible for any 13 costs associated with the issuance and distribution of a 1099 tax reporting 14 form to the Unidentified Claimants. Within five (5) business days of the 15 issuance of any tax form(s), Defendant shall provide a copy of the related 16 correspondence to the Regional Attorney, Anna Y. Park, U.S. Equal 17 Employment Opportunity Commission, 255 East Temple Street, 4th Floor, 18 Los Angeles, CA 90012. 19 C. Claims Administrator 20 1. Within thirty (30) days of the Effective Date, Defendant shall hire and 21 appoint a specific professional individual or organization (“Claims 22 Administrator”), approved by the EEOC, to oversee the payment of the 23 Class Fund for Unidentified Claimants as designated by the EEOC 24 pursuant to this Decree. If the Claims Administrator initially appointed by 25 Defendant thereafter declines to serve or to carry out its duties under this 26 Decree, Defendant shall have five (5) business days to notify the EEOC in 27 writing of the need for a replacement Claims Administrator and the EEOC 28
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1 shall provide Defendant with three (3) new Claims Administrators from 2 which Defendant shall select a replacement. 3 2. Defendant shall pay all costs associated with the selection and retention of 4 the Claims Administrator as well as the performance of the Claims 5 Administrator’s duties under this Decree. 6 D. Claims Notice Process 7 1. Within sixty (60) days of the Effective Date, Defendant shall provide to 8 the Claims Administrator a list of all employees who were terminated or 9 resigned while taking a leave of absence for medical reasons and/or 10 terminated for having accrued maximum points allowed pursuant to 11 Defendant’s Attendance policy in cases where points were awarded for 12 taking any leave or time off, at any time between January 3, 2012, to the 13 present. The list provided by Defendant shall include the employee’s 14 and/or former employee’s last known address(es), phone number(s), and 15 any other person identifying information to assist in identifying the 16 unidentified potential claimant. 17 2. Within ninety (90) days of the Effective Date, the Claims Administrator 18 shall, for any employee or former employee identified in Paragraph D.1, 19 provide notice as follows: 20 a. send a questionnaire and Notice Letter provided by the EEOC via 21 certified, first class mail (1) notifying the Potential Claimant of his 22 or her ability to file a claim for monetary relief; (2) providing the 23 Potential Claimant with instructions on how to file a claim on-line 24 with the claims administrator; (3) providing the Potential Claimant 25 with the opportunity to seek assistance in completing the on-line 26 claim; (4) enclosing a claim form or forms; (5) providing contact 27 information for the EEOC; and (6) informing Potential Claimants 28 of their ability to seek reinstatement by informing them that they
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1 will be considered for any position(s) open with Defendant for 2 which they apply and are qualified, with or without 3 accommodation. 4 b. Defendant or its Claims Administrator shall provide to the EEOC 5 certification that the Claims Administrator mailed a questionnaire 6 and Notice Letter to each such potential claimant. 7 c. Defendant or its Claims Administrator shall instruct the USPS to 8 notify Defendant or its Claims Administrator of any undeliverable 9 Notice Letters. 10 d. Should any letters be returned undeliverable, within twenty (20) 11 days of any questionnaire and/or Notice Letter being returned to 12 sender as undeliverable, Defendant or its Claims Administrator 13 shall: 14 i. research such Potential Claimant’s most-recent address and 15 further use its best efforts, including a search of a database 16 such as Accurint, to locate such employee, 17 ii. if Defendant or its Claims Administrator finds a more 18 recent address for any such employee, resend the 19 questionnaire and Notice Letter to the new address; and/or 20 iii. if Defendant or its Claims Administrator fails to find a 21 more recent address for any such employee, Defendant or 22 its Claims Administrator shall, within thirty (30) day 23 intervals following the re-mailing of the questionnaire and 24 Notice Letter provide to the EEOC information outlining 25 efforts to locate such employee(s). 26 E. Claims Distribution Process 27 1. At thirty (30) day intervals after mailing the first group of questionnaires 28 and Notice Letters, Defendant or its Claims Administrator shall forward to
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1 the EEOC any submitted claim forms received from any Potential 2 Claimant. The Claims Administrator shall provide Defendant and the 3 EEOC electronic access to the claims forms filed on-line. Defendant shall 4 ensure that the Claims Administrator has access to the EEOC and that the 5 Claims Administrator works with the EEOC to identify qualifying eligible 6 claimants in accordance with the EEOC’s criteria which are set forth in the 7 questionnaire and Notice Letter. The EEOC shall have the sole discretion 8 to determine who is an eligible claimant. 9 2. The EEOC shall have the sole discretion to designate the amount of the 10 Class Fund to be distributed to each Eligible Claimant. The EEOC shall 11 issue a Distribution List(s) to Defendant and the Claims Administrator. 12 Within ten (10) days of receipt of the EEOC’s Distribution List, Defendant 13 or its Claims Administrator shall forward via first class mail the full 14 amounts to all individuals listed in the Distribution List(s). Each check 15 will remain valid for 180 days. To the extent, the checks need to be 16 reissued, EEOC will notify Defendant or its Claims Administrator. 17 3. At least every thirty (30) days after Defendant or its Claims Administrator 18 issue checks pursuant to the Distribution List(s), Defendant or its Claims 19 Administrator shall provide the EEOC with a copy of each canceled 20 check, and identify any check not negotiated or returned non-negotiated to 21 Defendant or its claim administrator, to enable the parties to track 22 remaining funds for redistribution. 23 4. The EEOC may subsequently issue additional Distribution List(s), as 24 necessitated by further notice from Defendant or its Claims Administrator 25 that any check issued to an identified class member or similarly-aggrieved 26 individual was not negotiated within 90 days after issuance or was 27 returned non-negotiated to Defendant or its Claims Administrator. 28
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1 5. On a quarterly basis throughout the duration of this Decree, Defendant 2 will notify the EEOC of any funds remaining in term of this Decree. The 3 EEOC may subsequently issue additional Distribution List(s). 4 6. The EEOC shall designate a “Final Distribution List” which shall include, 5 in addition to any additional eligible individuals to be paid, any additional 6 amounts to be remitted to eligible individuals previously paid. 7 No further Distribution List shall be issued by the EEOC after the Final 8 Distribution List is provided to Defendant or its Claims Administrator. 9 7. Within sixty (60) days of receipt of the EEOC’s Final Distribution List, 10 Defendant or its Claims Administrator shall forward via first class mail to 11 each eligible individual payment for a gross amount equal to the full 12 amount set forth in the Final Distribution List. Within five (5) business 13 days of mailing the afore-mentioned payments, Defendant or its Claims 14 Administrator shall submit a copy of the checks and any related 15 correspondence to Anna Y. Park, Regional Attorney, U.S. Equal 16 Employment Opportunity Commission, 255 East Temple Street, 4th Floor, 17 Los Angeles, California 90012. 18 8. Within sixty days (60) after issuance of payments according to the Final 19 Distribution List, any remaining monies in the Class Fund can be donated 20 to a charity agreed upon by the Defendant and the EEOC that focuses on 21 issues involving disabilities. 22 VIII. GENERAL INJUNCTIVE RELIEF 23 A. Non-Discrimination 24 Defendant, its officers, agents, management (including all non-bargaining unit 25 supervisory employees), successors, assigns and all those in active concert or participation with 26 them, or any of them, are hereby enjoined from: (a) implementing Attendance or Leave of 27 Absence policies which do not provide exceptions when appropriate to provide reasonable 28 accommodation to employees who are qualified individuals with disabilities and properly engage
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1 in the interactive process; (b) suspending, terminating or taking any other adverse action against 2 any employee pursuant to such Attendance or Leave of Absence policies based on an absence 3 which should not be “chargeable” because it is required due to the employee being a qualified 4 individual with a disability or perceived as or having a record of a disability1. 5 B. Non-Retaliation 6 Defendant, its officers, agents, management (including all non-bargaining unit 7 supervisory employees), successors, assigns and all those in active concert or participation with 8 them, or any of them, are hereby enjoined from engaging in, implementing or permitting any 9 action, policy or practice with the purpose of retaliating against any current or former employee 10 or applicant of Defendant or its successors, or either of them, for his or her participation in the 11 EEOC process relating to a charge contained within the scope of this matter, the investigation by 12 the EEOC into this matter, participation in the Lawsuit, complaining about or opposing any 13 employment practice made unlawful by the ADA relating to this matter or for asserting any 14 rights under this Consent Decree. 15 C. Unlawful Maximum Leave and/or Attendance Policies 16 Defendant, its officers, agents, management (including all non-bargaining unit 17 supervisory employees), successors, assigns and all those in active concert or participation with 18 them, or any of them, are hereby enjoined implementing any policy, procedure, or practice 19 whereby they limit the amount of leave any employee or group of employees may take, and are 20 instead enjoined to engage in the interactive process with any employee with a disability who 21 requests leave as a reasonable accommodation and provide a reasonable accommodation where 22 such an accommodation does not pose an undue hardship to Defendant. 23 // 24 // 25 // 26
27 1 Nothing in this Decree creates an obligation to accommodate anyone with a perceived disability. 28
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1 IX. SPECIFIC INJUNCTIVE RELIEF 2 A. Reinstatement 3 Throughout the term of this Decree, Defendant shall make an effort to reinstate any 4 Claimant in this case, to the extent that there are positions available for which they apply, and for 5 which they are qualified, with or without reasonable accommodation. Any decision to rehire any 6 former employee is within the sole discretion of Defendant. Defendant shall report reinstatement 7 information to the EEOC as required below in Section IX.H.8. 8 B. ADA Coordinator 9 Within thirty (30) days after the Effective Date, Defendant shall appoint, with the 10 EEOC’s approval which will not be unreasonably denied, a Mueller employee, as the ADA 11 Coordinator (“ADA Coordinator”) to oversee Mueller’s implementation of the terms of this 12 Consent Decree. The ADA Coordinator shall possess the knowledge, capability, organizational 13 authority, and resources to monitor and ensure Mueller’s compliance with the terms of this 14 Consent Decree. The ADA Coordinator shall also have a base of knowledge regarding the ADA 15 and human resources. Defendant shall assign the ADA Coordinator the responsibility of 16 monitoring and ensuring Decree compliance and shall further hold the ADA Coordinator 17 accountable for carrying out his or her responsibilities. The ADA Coordinator shall be trained in 18 how to carry out his or her duties. 19 The ADA Coordinator ’s responsibilities shall include the following: 20 1. Reviewing and revising Defendant’s policies and practices to ensure 21 compliance with the ADA and ADAAA as required by Sections IX.C. and IX. D. of this 22 Decree. 23 2. Working with Defendant’s human resources managers concerning 24 employee requests for extended medical leaves of absence or other time off requests so 25 that the policies and practices continue to conform with the ADA, ADAAA, employment 26 anti-discrimination laws and the provisions of this Decree; 27 3. Ensuring the posting and/or distribution of the revised Policy as required 28 by Sections IX.C. and IX. D. of this Decree;
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1 4. Ensuring that effective training is provided to Defendant’s employees on 2 their rights and responsibilities under the ADA and ADAAA as required by Section 3 IX.H.1 of this Decree; 4 5. Ensuring that effective training is provided to Defendant’s supervisory 5 employees, human resources staff as required by Sections IX.H.2 and IX.H.3 of this 6 Decree; 7 6. Holding supervisory employees and human resources personnel, 8 accountable for failing to engage in the interactive process with regard to leave of 9 absence and time off requests, or failing to comply with Defendant’s policies and 10 procedures regarding leaves of absence and other related absence requests as a 11 reasonable accommodation for qualified individuals with disabilities, as required by 12 Section IX.F; 13 7. Ensuring that Defendant creates a centralized system of tracking requests 14 for leaves of absence and other absence requests that are sought as an accommodation for 15 qualified individuals with disabilities, as well as monitoring such requests in an 16 Accommodation Log as required by Sections IX.E. and IX.I. of this Decree; 17 8. Preparing annual reports to the EEOC on Defendant’s compliance as 18 required by Section IX.J. of this Decree; 19 9. Ensuring that all reports required by this Decree are accurately compiled 20 and timely submitted; 21 10. Monitoring and ensuring the retention and maintenance of any documents 22 or records required by this Decree; and 23 11. Monitoring and ensuring the distribution of any documents and posting of 24 notice as required by this Decree. 25 C. Policies and Procedures 26 To the extent not already done so, within ninety (90) days of the Effective Date of this 27 Consent Decree, Defendant shall review and, if necessary, revise its Leave of Absence and 28
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1 Attendance plans, policies, procedures and guidelines to include measures for accommodating 2 qualified individuals with disabilities. The revised policies and procedures shall include: 3 1. Clear and objective criteria which expressly prohibit disability 4 discrimination, specifically related to discharge on the basis of requesting 5 and/or requiring time off as a reasonable accommodation, retaliation, and 6 failure to engage in the interactive process; 7 2. Assurance that employees who request or require time off as a reasonable 8 accommodation due to disability or make a complaint of disability 9 discrimination regarding the denial of time off or provide information 10 related to such complaints will be protected against retaliation; 11 3. Assurance that properly trained human resources personnel shall be 12 involved in the process of reviewing leave of absence and time off 13 requests as part of the reasonable accommodation/interactive process; 14 4. A description of Defendant’s process for requesting time off as a 15 reasonable accommodation including: to whom an employee may make 16 requests for accommodation (including the name, address, telephone 17 and/or e-mail of the proper decision makers), the procedures for 18 communicating such requests to the proper decision makers, identification 19 of who is the decision maker in granting or denying a request for time off 20 as request for accommodation, whom an employee may contact if they 21 have questions about the process or if they need to follow up regarding a 22 request for accommodation; a clear explanation of employees’ rights and 23 responsibilities under the ADA, the ADAAA, and this Decree, including 24 that federal law requires Defendant to timely provide an available 25 effective reasonable accommodation with regard to all terms, conditions, 26 benefits, and privileges of employment, which includes trainings, 27 performance evaluations, discipline meetings, interactive processes, 28 investigations, staff meetings, office equipment, company facilities, and
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1 company events like award ceremonies, team-building activities, and 2 formal social events where presentations are made; 3 5. Assurance that the Defendant will make its best efforts to establish 4 reasonable accommodation leave of absence and time off policies 5 consistent with the ADA, including but not limited to utilizing any 6 discretion available in creating and negotiating future collective 7 bargaining agreements; 8 6. A clear explanation of how employees qualify for a reasonable 9 accommodation, including a fast-track process for certain physical or 10 mental impairments that should be easily be concluded to be disabilities as 11 listed at 29 C.F.R. § 1630.2(j)(3)(iii); 12 7. A clear explanation of the duties of supervisory and human resources 13 employees and Defendant’s ADA Coordinator have in timely engaging in 14 the interactive process with and providing effective reasonable 15 accommodations to employees who are deemed disabled, pursuant to the 16 guidance regarding what constitutes a disability set forth in 29 C.F.R. § 17 1630.2; 18 8. A clear requirement that Defendant, including supervisory employees or 19 human resource personnel or Defendant’s ADA Coordinator, shall engage 20 in open and frequent communication with its employees throughout the 21 interactive process, including an early meeting with the applicant or 22 employee to discuss possible effective accommodations and the provision 23 of the name of the contact person that the applicant or employee can 24 contact with questions or concerns at any time in the process; 25 9. A clear requirement that Defendant, including supervisory employees or 26 human resource personnel or Defendant’s ADA Coordinator, shall review 27 any accommodation decision with the applicant or employee, including a 28
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1 written communication to the applicant or employee of the decision and 2 reasons for the denial of accommodation request; 3 10. A clear explanation of the duties of supervisory and human resources 4 employees and/or Defendant’s ADA Coordinator in conducting a follow- 5 up meeting with the applicant or employee to evaluate the continued 6 effectiveness of any accommodation provided and to discuss whether 7 further engagement in the interactive process if necessary. 8 11. Assurance that Defendant look at each leave request and time off request 9 made by a qualified individual with a disability on an individualized basis, 10 that Defendant will engage in a good faith interactive process with the 11 employee in attempting to provide the requested accommodation, and that 12 requests for accommodations shall only be denied if granting the request 13 would pose an undue hardship upon Defendant; 14 12. Removal of requirement that employees who are on leave due to a medical 15 condition for a specified time period be terminated and assurance that 16 Defendant and its ADA Coordinator will consider additional leave as a 17 form of accommodation and will consider the duration of such leave on a 18 case by case basis pursuant to Defendant’s obligation to engage in 19 interactive process and provide a reasonable accommodation under the 20 ADA. Defendants confirm that the requirements will be removed within 21 90 days from the effective date; 22 13. To the extent permissible under Union contracts, assurance that if there is 23 no reasonable accommodation that will enable an employee seeking an 24 accommodation to perform the essential functions of their position, 25 Defendant will consider reassignment to a vacant position that the 26 employee is qualified to perform the essential functions with or without a 27 reasonable accommodation. Defendant shall attempt to first identify 28 position(s) equivalent in pay, hours, and benefits to which an employee
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1 may be transferred and if there is no equivalent position(s), Defendant will 2 provide opportunity for reassignment to lower position(s). When seeking 3 reassignment of employees, Defendant will be responsible for identifying 4 vacant and open positions for which the employee is qualified; 5 14. Emphasizing that Defendant’s revised policies under the ADA contains no 6 requirement that employees be released to work without restriction or 7 released to full duty. Assurance that Defendant will consider whether the 8 employee can perform the essential functions of their position with or 9 without reasonable accommodation; 10 15. A procedure for communicating with the employee in writing regarding 11 the status of his/her request for additional leave as reasonable 12 accommodation; 13 16. Assurance that Defendant will take immediate and appropriate corrective 14 action when it determines that discrimination or retaliation has occurred 15 due to an employee’s request for additional leave as a reasonable 16 accommodation; and 17 17. Assurance that Defendant will institute a procedure to ensure 18 accountability by its managers and supervisors upon discovery of any 19 violation of the ADA. 20 18. Notwithstanding the foregoing, it is understood that any obligations under 21 this Consent Decree related to leaves of absence and other absent requests 22 plan may be subject to a bargaining obligation under the National Labor 23 Relations Act. Accordingly, if necessary to satisfy a bargaining 24 obligation, the timetable for compliance by Defendant set forth in this 25 Consent Decree may be extended as long as necessary. 26 D. Complaint Procedure 27 28
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1 Defendant, with the assistance of its ADA Coordinator, shall also review and, if 2 necessary, revise its written policies and procedures regarding its complaint procedure for 3 complaints of disability discrimination. Such revised policies and procedures shall include: 4 1. A clearly described complaint process that provides accessible and confidential 5 avenues of complaint with the contact information, including name, address, and telephone 6 number, of persons both internal (i.e. human resources and/or Defendant’s ADA Coordinator) 7 and external to Defendant (i.e. the EEOC) to whom employees or applicants for employment 8 may report discrimination including a written statement that the employee may report the 9 discriminatory behavior to designated persons outside their chain of management. 10 2. Assurance that employees who make complaints of disability discrimination or 11 provide information related to such complaints will be protected against retaliation; 12 Within thirty (30) days of the Effective Date of this Decree, Defendant shall provide to 13 the EEOC a copy of the revised Policy as required by Sections IX.D. and IX.E. 14 Within sixty (60) days of the Effective Date, and on an annual basis thereafter, Defendant 15 shall ensure that it has distributed the revised Policy required by Sections IX.D. and IX.E. to all 16 employees, including management/supervisory employees. Defendant shall collect 17 acknowledgments from each employee who receives the revised policy as required by Sections 18 IX.D. and IX.E. 19 Within thirty (30) days of the hire date of any person hired after the initial distribution but 20 within the term of the Decree, Defendant shall ensure that it has distributed revised the Policies 21 and Procedures to that person. On an annual basis through the term of the Decree, Defendant 22 shall submit to the EEOC a statement confirming the distribution of the Policy to any person 23 hired after the initial distribution but within the term of the Decree. 24 Such policy shall also be included in any relevant policy or employee manuals distributed 25 to employees by Defendant. 26 Within ninety (90) days of the Effective Date, Defendant shall submit to the EEOC a 27 statement confirming the distribution of the Policy. 28
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1 Within ninety (90) days of the Effective Date and throughout the duration of the Decree, 2 Defendant shall ensure that it has physically posted the revised Policy in legible font in a 3 conspicuous place at all of Defendant’s facilities in an area accessible to all employees. Within 4 ninety (90) days of the Effective Date, Defendant shall submit to the EEOC a statement 5 confirming the posting of the Policy. Defendant shall annually affirm to the EEOC the Policy 6 has been posted in the manner described above. 7 E. Accommodation Log 8 Defendant’s ADA Coordinator shall create and maintain an Accommodation Log that 9 documents any time off or leave requested by a qualified individual with a disability as an 10 accommodation for that employee. Defendant’s ADA Coordinator shall retain all documents 11 relating to any accommodation requests identified in the Accommodation Log. In the event an 12 employee makes any subsequent request to modify an accommodation by requesting additional 13 time off or an additional leave of absence, Defendant’s ADA Coordinator shall include in the 14 Accommodation Log the information required by this section. The Accommodation Log shall 15 include the following information: 16 1. Name of person making the request; 17 2. Date of the request; 18 3. Physical or mental impairment; 19 4. Any person to whom the request for accommodation was made; 20 5. Accommodation(s) requested, if any; 21 6. Any person involved in the interactive process; 22 7. Any records or documents made or reviewed in the course of engaging in 23 the interactive process; 24 8. Any person involved in the decision-making process regarding the request 25 for accommodation; 26 9. Accommodation provided, if any; 27 10. The reason for the decision to provide or refuse any accommodation; 28
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1 11. Complaints made by individuals regarding accommodation issues, issues 2 regarding being denied leave request due to disability, or issues related to 3 retaliation arising from complaining about the denial of disability time off; 4 and 5 12. Whether any modification or additional accommodations in conjunction 6 with the original accommodation were sought and if such requests were 7 granted or denied. 8 Defendant shall make the afore-mentioned records available to the EEOC within ten (10) 9 business days following a written request by the EEOC beyond the annual reporting requirement. 10 F. Posting of Notice of Consent Decree and Settlement 11 Within ten (10) days of the Effective Date, and throughout the first year of the Effective 12 Date of this Decree, Defendant shall ensure that it has posted the Notice of Consent Decree and 13 Settlement (attached to this Decree as Exhibit A) in a conspicuous place accessible to all non- 14 union employees. Within thirty (30) days of the Effective Date, Defendant shall submit to the 15 EEOC a statement confirming the posting of the Notice of Consent Decree and Settlement. 16 G. Training 17 1. Training of All Employees (Managers, Supervisors, HR, But Also 18 Including Non-Managerial, Non-Supervisory, Non-HR):
19 Mandatory One-Hour Video Training 20 Within one hundred and twenty (120) days of the Effective Date and annually thereafter 21 for the duration of the Decree, Defendant shall provide training via customized video 22 presentation lasting at least sixty (60) minutes to all Defendant’s employees containing the 23 content outlined in this subsection. This training shall be moderated in order to allow questions 24 and answers, shall be delivered in a language the employees understand, and shall include 25 coverage of: 26 a. The role and purpose of the ADA/ADAAA and its prohibitions and 27 provisions, including the prohibition against unlawful discrimination, 28
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1 harassment and retaliation, and the requirement that employers provide 2 reasonable accommodations to qualified individuals with disabilities; 3 b. Examples of qualifying disabilities (pursuant to the guidance found in 29 4 C.F.R. § 1630.2) and reasonable accommodations, with emphasis on 5 requests for extended medical leave of absence; 6 c. Defendant’s ADA policies and process for requesting accommodations, 7 including: to whom an employee may make requests for accommodation 8 (including the identity and contact information for Defendant’s Internal 9 Monitor and/or proper decision makers), the procedures for 10 communicating such requests to the proper decision makers, and whom an 11 employee or applicant may contact if they have questions about the 12 process or if he/she needs to follow up regarding a request for 13 accommodation; 14 d. Other relevant Company policies and procedures, including those related 15 to leaves of absence and other requests for absences and the potential for 16 qualified individuals with disabilities to request time off as a reasonable 17 accommodation; and 18 e. How to report concerns about potential disability discrimination, the 19 interactive process, improper denial of a reasonable accommodation, and 20 retaliation. 21 This customized video presentation will be recorded and available for viewing within the 22 time-frame set forth in this Subsection. Defendant will also provide such training to any newly 23 hired employee as part of new hire orientation within 60 days of beginning employment, or at 24 the annual training within the term of the Decree, whichever comes first. All persons required 25 to attend such training shall verify their attendance in writing. 26 2. Training of Managers and Supervisors—One-Hour Live Webinar With 27 Moderator, Plus One-Hour Video Training (Total Training for This Group
28 = Two Hours)
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1 Within one hundred and twenty (120) days of the Effective Date and annually thereafter 2 for the duration of the Decree, in addition to the one-hour video training for all employees 3 outlined in Subsection (1) above, Defendant shall also provide training via live, interactive 4 webinar lasting at least sixty (60) minutes to all managers and supervisors. In addition to a recap 5 of the content outlined in Subsection (1) above, this training will further cover: 6 a. The prohibition against discrimination, harassment and retaliation under 7 the ADA in supervisory/management decision making; 8 b. Types of possible accommodations, including leaves of absence; 9 c. Importance of the confidentiality of employee medical information and 10 manager/supervisor responsibilities in this regard; 11 d. How to recognize employee requests or need for accommodation, the 12 supervisor’s/manager’s role in the interactive process, and how to engage 13 Defendant in assisting an employee through that process; 14 e. Revised Company policies concerning the ADA, including, but not limited 15 to: policies on leaves of absence as potential reasonable accommodations 16 under the ADA and how they apply to qualified individuals with 17 disabilities who require time off of work due to their disabilities (whether 18 or not FMLA applies), and requests for return to work following such a 19 medical leave of absence; and 20 f. The manager’s/supervisor’s role in implementing and monitoring the 21 effectiveness of provided accommodations. 22 This live webinar will be recorded for supervisors/managers who are unable to attend the 23 originally scheduled session. Defendant will present, with the presence of a moderator for 24 questions and answers, the recorded webinar training quarterly for any newly hired employee or 25 any employee newly promoted to a supervisor/manager position, or such employees shall 26 participate in the annual live webinar training within the term of the Decree if such training 27 comes first. All persons required to attend such training shall verify their attendance in writing. 28
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1 3. Training of Human Resources—Live, Interactive Three-Hour Training
2 (Total Training for This Group = Five Hours) 3 Within one hundred and twenty (120) days of the Effective Date and annually thereafter 4 for the duration of the Decree, in addition to the one-hour video training for all employees 5 outlined in Subsection (1) above and the one-hour webinar training for supervisors/managers 6 outlined in Subsection (2) above, Defendant shall also provide live, interactive training lasting at 7 least three hours to all human resources personnel, and any other staff members who are 8 responsible for handling requests for reasonable accommodation. In addition to a recap of the 9 content outlined in Subsections (1) and (2) above, this training will further cover: 10 a. The history and purpose of the ADA and the most recent amendments; 11 b. How the interactive process works, including the importance of 12 communicating with the employee and his/her managers/supervisors to 13 assess the needs of the employee and the operational realities of the work 14 environment; 15 c. Documentation issues, including requesting information from appropriate 16 healthcare providers, confidentiality, and scope of requests for medical 17 information; 18 d. The importance of monitoring accommodations to ensure employees are 19 effectively accommodated and to ensure accountability of all parties 20 involved in the accommodation process; 21 e. Complex accommodation issues, such as managing the performance of 22 employees, requests for schedule or task changes, and reassignment 23 discussions; 24 f. Handling complaints/concerns raised by employees or 25 managers/supervisors about potential discrimination, harassment, 26 retaliation, or the accommodation process; 27 g. Defendant’s obligations under this Decree, including the duties regarding 28 the Accommodation Log; and
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1 h. Reviewing and assessing whether the interactive process was properly 2 conducted, including determining the needs of disabled individuals to 3 ensure they were provided a meaningful opportunity to engage in the 4 interactive process. 5 This live, interactive training will be recorded for human resources employees and any 6 other staff members who are responsible for handling requests for reasonable accommodation 7 who are unable to attend the originally scheduled session. Individuals identified for training in 8 this section will participate in such training within 60 days of either the originally scheduled 9 session or of being hired (with the assistance of a moderator for questions and answers), or will 10 participate in the annual live training within the term of the Decree if such training comes first. 11 All persons required to attend such training shall verify their attendance in writing. 12 4. Verification of Training 13 Within one hundred and eighty (180) days of the Effective Date and annually thereafter, 14 Defendant shall produce to the EEOC reasonable documents verifying the occurrence of all 15 training sessions conducted as required under this Decree, including any written training 16 materials used, a list of the individuals who conducted the training, and a list of the names and 17 job titles of attendees at each training session. The EEOC shall have the right to attend the 18 trainings described in the Decree. Thirty (30) days prior to any live training, Defendant shall 19 provide written notice to EEOC including the time, location, and name and contact information 20 of the trainer. The written notice shall be sent via U.S. Mail to the attention of Anna Y. Park, 21 Regional Attorney, U.S. Equal Employment Opportunity Commission, 255 East Temple Street, 22 4th Floor, Los Angeles, California, 90012. 23 H. Reporting 24 Defendant through its ADA Coordinator shall provide the following reports annually 25 throughout the term of the Decree: 26 1. The attendance lists for all training sessions required under this Decree 27 that took place since the previous report; 28
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1 2. Acknowledgments of receipt of the Policy for all employees hired since 2 the previous report; 3 3. A description of all disability discrimination and/or retaliation complaints 4 made related to leaves of absence or absenteeism related to a qualified 5 individual with a disability including under the Attendance policy since 6 the submission of the immediately preceding report hereunder. This 7 description shall include the names of the individuals alleging 8 discrimination or retaliation; the nature of the complaint; the names of the 9 alleged perpetrators of discrimination or retaliation; the dates of the 10 alleged discrimination or retaliation; a brief summary of how each 11 complaint was resolved; and the identity of the employee(s) who 12 investigated and/or resolved each complaint. If no results have been 13 reached as of the time of the report, the result shall be included in the next 14 report; 15 4. Verification that the Notice of Consent Decree and Settlement and Policy 16 has continued to be posted in a conspicuous place accessible to all 17 employees; 18 5. In the event Defendant utilizes a temporary staff agency (“TSA”) to 19 supply workers at its facilities during the term of this Decree, Defendant 20 agrees that it shall take reasonable steps during the term of the Decree to 21 ensure that the TSA is in compliance with the ADA and ADAAA, and 22 Defendant will provide a list of all employees, including but not limited 23 their name, job title, date assigned to work at Defendant’s facilities and 24 starting date (if different), last date of assignment with Defendant; who 25 worked and/or were assigned to work at Defendant’s facilities and whose 26 assignment with Defendant ended because of a medical reason, and/or 27 whose assignment with Defendant ended because they violated 28 Defendant’s leave and/or attendance policies.
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1 6. The status of Defendant’s compliance with the terms of the Decree; 2 7. Whether any revisions of Defendant’s policies and procedures regarding 3 reasonable accommodation, specifically leaves of absence and time off 4 related to disability, or retaliation have occurred since the preceding 5 report, including a copy of the revised policies or procedures; and 6 8. All identifying information regarding the Reinstatement Claimant(s) 7 including: 8 (a) the name(s) of the Potential Claimant(s) who seek/sought 9 reinstatement, the date it was notified of the Potential Claimants’ interest 10 in reinstatement, and the position(s) they are interested in reinstatement; 11 (b) the date Defendant contacted and notified the Potential Claimant(s), 12 who indicated that they were interested in reinstatement, to apply’ 13 (c) its decision as to whether or not it hired the Potential Claimant(s) 14 and/or if it still considering the Potential Claimant(s) for re-employment; 15 (d) the name(s) of the Potential Claimant(s) who are/were re-employed; 16 (e) for any Reinstatement Claimant who requests an accommodation: (i) 17 the name of the requesting employee; (ii) accommodations requested; (iii) 18 details of the interactive process; (iv) what accommodation was made, if 19 applicable; and (v) whether an accommodation was denied and why; and 20 (f) if the reinstated Claimant and/or Potential Claimants is later terminated 21 by Defendant, Defendant shall notify the Commission the reason(s) for 22 such termination; 23 9. the Accommodation Log; and 24 10. Defendant shall report to the EEOC what positions are open, the dates and 25 locations for such open positions, and report what efforts were made by Defendant to fill those 26 positions by Potential Claimants who have indicated that they were interested in reinstatement. 27 // 28 //
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1 X. MISCELLANEOUS PROVISIONS 2 A. During the term of this Decree, Defendant shall provide any potential successor- 3 in-interest with a copy of this Decree within a reasonable time of not less than thirty (30) days 4 prior to the execution of any agreement for acquisition or assumption of control of any of all of 5 Defendant’s facilities, or any other material change in corporate structure. Defendant shall 6 simultaneously inform the EEOC of any such agreement for acquisition, assumption of control, 7 or other material change in corporate structure. 8 B. During the term of this Decree, Defendant shall assure that each of its officers, 9 managers, and supervisors is aware of any term(s) of this Decree which may be related to his/her 10 job duties. 11 C. Unless otherwise stated, all notices, reports and correspondence required under 12 this Decree shall be delivered to the attention of Anna Y. Park, Regional Attorney, U.S. Equal 13 Employment Opportunity Commission, 255 East Temple Street, 4th Floor, Los Angeles, 14 California, 90012; facsimile number (213) 894-1301. 15 D. This Decree may be signed in counterparts. A facsimile signature shall have the 16 same force and effect of an original signature or copy thereof. 17 XI. COSTS AND ATTORNEYS’ FEES 18 Defendant shall bear all costs associated with its administration and implementation of its 19 obligations under this Decree, including but not limited to the distribution of the settlement 20 money as well as any costs associated with the claims administration process. Each party shall 21 bear its own costs of suit and attorneys’ fees. 22 // 23 // 24 // 25 // 26 // 27 // 28
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1 All Parties, through the undersigned, respectfully apply for and consent to the entry of 2 this Consent Decree Order. 3 Respectfully Submitted,
4 U.S. EQUAL EMPLOYMENT 5 OPPORTUNITY COMMISSION Anna Y. Park 6 7 Date: ______By: ______Anna Y. Park 8 Attorney for Plaintiff 9 EEOC
10 11 Date: ______By: ______Helene Wasserman 12 Attorney for Defendant Mueller Industries, Inc. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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ORDER 1 GOOD CAUSE APPEARING: 2 The Court hereby finds that compliance with all provisions of the foregoing Decree is fair 3 4 and adequate. The Court hereby retains jurisdiction for the term of the foregoing Consent 5 Decree, and the provisions thereof are hereby approved. 6 IT IS SO ORDERED. 7 8 DATED: July 13, 2018 The Honorable George H. Wu 9 United States District Judge 10 11
12
13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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1 Anna Y. Park, CA SBN 164242 Sue J. Noh, CA SBN 192134 2 Rumduol Vuong, CA SBN 264392 3 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 4 255 East Temple Street, Fourth Floor Los Angeles, CA 90012 5 Telephone: (213) 894-1083 Facsimile: (213) 894-1301 6 E-Mail: [email protected]
7 Nechole M. Garcia, NV SBN 12746 8 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 9 333 Las Vegas Boulevard South, Suite 8112 Las Vegas, NV 89101 10 Telephone: (702) 388-5072 Facsimile: (702) 388-5094 11 E-Mail: [email protected]
12 13 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 14 U.S. EQUAL EMPLOYMENT OPPORTUNITY ) Case No.: 2:18-cv-00954 JCM-CWH 15 COMMISSION, ) )
16 ) Plaintiff, ) CONSENT DECREE; 17 v. ) PROPOSED ORDER ) 18 NEVADA RESTAURANT SERVICES, Inc. and Does ) 1-5 Inclusive, ) 19 ) ) Defendants. 20 ) ______) 21
22 Plaintiff U.S. Equal Employment Opportunity Commission (the “EEOC” or “Commission”) and 23 Defendant Nevada Restaurant Services, dba Dotty’s hereby stipulate and agree to entry of this Consent 24 Decree (the “Decree”) to fully and finally resolve Plaintiff’s complaint against Defendant in U.S. Equal 25 Employment Opportunity Commission v. Nevada Restaurant Services, and Does 1-5, inclusive; Case 26 No. 2:18-cv-00954 (the “Action”). Collectively, the EEOC and Defendant are referred to herein as the 27 “Parties.” On May 24, 2018, Plaintiff filed this Action in the United States District Court, District of 28 Nevada, for violations of the Americans with Disabilities Act of 1990 (“ADA”), as amended, the ADA
1 Case 2:18-cv-00954-JCM-CWH Document 67 Filed 05/29/1806/05/18 Page 2 of 2527
1 Amendment Act of 2008 (“ADAAA”), and Title I of the Civil Rights Act of 1991. The Action alleged
2 that Defendant discriminated against Charging Parties Amanda Coccus and Margaret Tront, and a class
3 of similarly aggrieved individuals when Defendant failed to engage in the interactive process, failed to
4 provide a reasonable accommodation, and terminated individuals because of an actual or perceived
5 disabilities.
6 II.
7 PURPOSES AND SCOPE OF THE CONSENT DECREE
8 A. The Decree is made and entered into by and between the EEOC and Defendant and shall
9 be binding on and enforceable against Defendant, as well as their officers, directors, agents, successors
10 and assigns; provided, however, that the parties to this Decree agree that there is no individual liability
11 for violation of this Decree and, as such, no individual officer, director, agent, successor or assign may
12 shall be named by the EEOC in any action to enforce this Decree.
13 B. The Parties have entered into this Decree for the following purposes:
14 1. To provide monetary and injunctive relief, including, where appropriate,
15 reinstatement;
16 2. To ensure Defendant’s employment practices comply with federal law;
17 3. To continue to seek a work environment free from discrimination, especially as it
18 relates to disability discrimination;
19 4. To ensure training for Defendant’s employees with respect to the pertinent laws
20 regarding disability discrimination;
21 5. To provide an appropriate and effective mechanism for handling complaints of
22 disability discrimination in the workplace;
23 6. To ensure appropriate recording keeping, reporting, and monitoring; and
24 7. To avoid the expensive and protracted costs incident to this litigation.
25 C. This Decree will be implemented by Defendant’s facilities on a company-wide basis.
26
27
28
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1 III.
2 RELEASE OF CLAIMS
3 A. This Decree fully and completely resolves all issues, claims and allegations raised by the
4 EEOC against Defendant in the Action.
5 B. Nothing in this Decree shall be construed to preclude the EEOC from bringing suit to
6 enforce this Decree in the event that Defendant fails to perform the promises and representations
7 contained herein.
8 C. This Decree in no way affects the EEOC’s right to bring, process, investigate or litigate
9 other charges that may later arise against Defendant in accordance with standard EEOC procedures.
10 IV.
11 JURISDICTION
12 A. The Court has jurisdiction over the Parties and the subject matter of this litigation. The
13 Action asserts claims that, if proven, would authorize the Court to grant the equitable relief set forth in
14 this Decree. The terms and provisions of this Decree are fair, reasonable and just. This Decree
15 conforms with the Federal Rules of Civil Procedure, the ADA, and ADAAA and is not in derogation of
16 the rights or privileges of any person.
17 B. The Court shall retain jurisdiction of this action during the duration of the Decree for the
18 purposes of entering all orders, judgments and decrees that may be necessary to implement the relief
19 provided herein.
20 V.
21 EFFECTIVE DATE AND DURATION OF DECREE
22 A. The provisions and agreements contained herein are effective immediately upon the date
23 which this Decree is entered by the Court (the “Effective Date”).
24 B. Except as otherwise provided herein, this Decree shall remain in effect for three years
25 and six months after the Effective Date.
26
27
28
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1 VI.
2 MODIFICATION AND SEVERABILITY
3 A. This Decree constitutes the complete understanding of the Parties with respect to the
4 matters contained herein. No waiver, modification or amendment of any provision of this Decree will
5 be effective unless made in writing and signed by an authorized representative of each of the Parties.
6 B. If one or more provisions of the Decree are rendered unlawful or unenforceable, the
7 Parties shall make good faith efforts to agree upon appropriate amendments in order to effectuate the
8 purposes of the Decree. In the event that such agreement cannot be reached, the remaining provisions
9 will remain in full force and effect unless the purposes of the Decree cannot, despite the Parties’ best
10 efforts, be achieved.
11 VII.
12 COMPLIANCE AND DISPUTE RESOLUTION
13 A. The Parties expressly agree that if the EEOC has reason to believe that Defendant has
14 failed to comply with any provision of this Consent Decree, the EEOC may bring an action before this
15 Court to enforce the Decree. Prior to initiating such action, the EEOC will notify Defendant and/or
16 its/their legal counsel of record, by telephone and in writing, of the nature of the dispute, making a good
17 faith effort to resolve the issue with Defendant. This notice shall specify the particular provision(s) that
18 the EEOC believes Defendant breached. Absent a showing by either party that the delay will cause
19 irreparable harm, Defendant shall have thirty (30) days to attempt to resolve or cure any non-monetary
20 breach and shall have fifteen (15) days to attempt to resolve or cure any monetary breach.
21 B. The Parties agree to cooperate with each other and use their best efforts to resolve any
22 dispute referenced in the EEOC notice.
23 C. After thirty (30) days have passed with respect to any non-monetary breach, or fifteen
24 (15) days have passes with respect to any monetary breach, if the Parties have reached no resolution or
25 agreement to extend the time further, the EEOC may petition this Court for resolution of the dispute,
26 seeking all available relief, including an extension of the term of the Decree, and the EEOC’s costs
27 incurred in securing compliance with the Decree, and/or any other relief the court deems appropriate.
28
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1 VIII.
2 MONETARY RELIEF 3 Defendant will pay a total of $3,500,000.00 (“Gross Sum”) to resolve this Action. The EEOC
4 has full and complete discretion under the terms of this Decree to determine who is a Claimant and to
5 determine the amount of payment, if any, to the Charging Parties and/or Claimants.
6 A. Monetary Relief for Charging Parties and Identified Claimants
7 1. In settlement of the claims of Charging Party Amanda Coccus, Charging Party Margaret
8 Tront, and the claimants the EEOC has presently identified to Defendant (collectively
9 referred to as the “Identified Claimants”), Defendant shall pay a portion of the Gross Sum
10 as designated by the EEOC. The EEOC has determined that each Identified Claimant
11 shall receive six months backpay in the amount of $8,580.
12 2. The EEOC shall provide to Defendant a Distribution List designating payment amounts
13 to each Identified Claimant. The EEOC’s Distribution List shall include six months of
14 back pay as defined in Section VIII.A.1 above, and compensatory damages, if any, as
15 designated by the EEOC.
16 3. Within fifteen (15) business days of receiving the EEOC’s Distribution List, Defendant
17 shall send a check or checks, via first class, certified mail, in the amounts designated in
18 the EEOC’s Distribution List, to the Charging Parties and Identified Claimants. For each
19 check constituting back pay, Defendant shall pay the employer’s portion of all deductions
20 required by law, including but not limited to FICA and FUTA taxes, and such amounts
21 shall not be deducted from payment of the monetary settlement amounts to the Charging
22 Parties and Identified Claimants. Each check will remain valid for 180 days.
23 4. Within ten (10) business days of mailing the aforementioned payments, Defendant shall
24 submit a copy of the checks and any related correspondence as well as a report regarding
25 the mailing of the checks to Anna Y. Park, Regional Attorney, U.S. Equal Employment
26 Opportunity Commission, 255 East Temple Street, 4th Floor, Los Angeles, California
27 90012. The report shall show the amount of the check(s), the date the check(s) was
28
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1 mailed, the person to whom check(s) were mailed, and the address to which checks were
2 mailed.
3 5. If Defendant becomes aware that any of the checks issued in this Action are returned or
4 otherwise not cashed, Defendant shall notify the EEOC within fifteen (15) business days
5 of gaining such knowledge, and the EEOC shall have responsibility for obtaining
6 information necessary to deliver reissued checks, which Defendant shall re-mail within
7 five (5) business days of obtaining updated information from the EEOC.
8 6. Defendant shall prepare and distribute W2 and 1099 reporting forms to each Charging
9 Party and Identified Claimant based on last known addresses or addresses provided by
10 the EEOC and shall make any appropriate reports for each to the Internal Revenue
11 Service and other tax authorities. Defendant shall be solely responsible for any costs
12 associated with the issuing and distributing W2’s and 1099s to the Charging Parties and
13 Identified Claimants. Within ten (10) business days of the issuance of any W2 or 1099
14 form, Defendant shall provide a copy of the related correspondence to the Regional
15 Attorney, Anna Y. Park, U.S. Equal Employment Opportunity Commission, 255 East
16 Temple Street, 4th Floor, Los Angeles, CA 90012.
17 B. Eligible Claimants
18 1. Defendant shall pay a portion of the Gross Sum to claimants eligible for relief who will
19 be identified through the claims process as described below (“Eligible Claimants”). The
20 payment, if any, to the Eligible Claimants shall be triggered by the EEOC’s issuance of a
21 Distribution List designating each Eligible Claimant’s portion and amount of monetary
22 relief as well as the name and address to which the checks are to be delivered. Anyone
23 eligible to receive monies shall be determined after completion of the Claims Notice
24 Process, set forth below in Section VIII.D. The EEOC has full and complete discretion
25 under the terms of this Decree to determine who is eligible and to determine the amount
26 of any payment, if any, to be given to an Eligible Claimant. The EEOC will make its best
27 efforts to make these designations within eighteen (18) months of the Effective date.
28
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1 C. Claims Administrator
2 1. Within thirty (30) days of the Effective Date, Defendant shall hire and appoint a specific
3 professional individual or organization (“Claims Administrator”), approved by the
4 EEOC, to oversee payments to Eligible Claimants as designated in a Distribution List. If
5 the Claims Administrator initially appointed by Defendant thereafter declines to serve or
6 to carry out its duties under this Decree, Defendant shall have ten (10) business days to
7 notify the EEOC in writing of the need for a replacement Claims Administrator and shall
8 provide the EEOC with the name of a new Claims Administrators for approval by the
9 EEOC. If the EEOC objects to the appointment of the new administrator identified by
10 Defendant, the EEOC shall be entitled to identify the replacement Claims Administrator.
11 2. Defendant shall pay all costs associated with the selection and retention of the Claims
12 Administrator as well as the performance of the Claims Administrator’s duties under this
13 Decree.
14 D. Claims Notice Process
15 1. Within sixty (60) days of the Effective Date, Defendant shall provide to the Claims
16 Administrator a list of all employees who resigned or were terminated at any time from
17 April 30, 2011, through the Effective Date (“Potential Claimants”). The list provided by
18 Defendant shall include the former employee’s last known address(es), phone number(s),
19 last date of employment with Defendant, and any personal identifying information to
20 assist in identifying the Potential Claimant.
21 2. Within thirty (30) days of receipt of the list of Potential Claimants, the Claims
22 Administrator shall:
23 a. Send each Potential Claimant a Notice Letter, via certified, first class mail to each
24 Potential Claimant (1) instructing the Potential Claimant when and how to
25 complete an on-line questionnaire, (2) notifying the Potential Claimant that the
26 EEOC will review the on-line questionnaire to determine if s/he is an Eligible
27 Claimant, (3) that s/he may seek reinstatement if s/he is able to perform an open
28 position for which the s/he is qualified and which essential functions s/he can
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1 perform with or without a reasonable accommodation, and (4) providing the
2 Potential Claimant with the opportunity to seek assistance in completing the on-
3 line questionnaire.
4 b. Within ten (10) days of mailing each Notice Letter, Defendant or its Claims
5 Administrator shall provide to the EEOC certification that the Claims
6 Administrator mailed a Notice Letter to each such Potential Claimant.
7 c. Defendant or its Claims Administrator shall instruct the USPS to notify Defendant
8 or its Claims Administrator of any undeliverable Notice Letters. Any Potential
9 Claimant whose original Notice Letter is not returned as undeliverable, shall have
10 ninety (90) days from the date the Defendant or its Claims Administrator mailed
11 an unreturned Notice Letter to submit a completed questionnaire.
12 d. If a Notice Letter is returned as undeliverable, the Claims Administrator shall
13 complete the following tasks within ten (10) days of receipt of a Notice Letter
14 returned as undeliverable:
15 i. Research such Potential Claimant’s most-recent address and
16 further use its best efforts, including a search of a database such as
17 Accurint, to locate such Potential Claimant;
18 ii. If Defendant or its Claims Administrator finds a more recent
19 address for any such Potential Claimant, resend Notice Letter to
20 the new address; and/or
21 e. If Defendant or its Claims Administrator fails to find a more recent address for
22 any such Potential Claimant, Defendant or its Claim Administrator shall notify the
23 EEOC of such information and provide to the EEOC certification outlining efforts
24 to locate such Potential Claimant. The EEOC shall then have an additional thirty
25 (30) days to attempt to find a good address for the Potential Claimant. If a new or
26 different address is located by the EEOC, Defendant or its Claims Administrator
27 shall re-mail the questionnaire and Notice in accordance with Section
28 VIII.D.(d)(2).
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1 f. Any Potential Claimant whose original Notice Letter and questionnaire was re-
2 mailed in accordance with the procedures above, shall have ninety (90) days from
3 the date of the re-mailing to submit a completed questionnaire.
4 g. Any such Potential Claimant whose original Notice Letter is returned
5 undeliverable and for whom Defendant or its Claims Administrator exhausted the
6 remailing process as set forth in Section VIII.D(d) and (e) above shall not be
7 entitled to collect from the Gross Sum, unless the EEOC determines that good
8 cause exists to determine otherwise.
9 h. The final re-mailing of all questionnaires must occur no later than twelve months
10 after the Effective date of this decree.
11 E. Claims Distribution Process
12 1. At thirty (30) day intervals after mailing the first group of Notice Letters, the Claims
13 Administrator shall provide Defendant and the EEOC electronic access to the on-line
14 questionnaires completed by the Potential Claimants. The Claims Administrator shall
15 provide the EEOC with a copy of the questionnaires submitted by mail in the event a
16 Potential Claimant is unable to submit an on-line questionnaire
17 2. The EEOC shall have the sole discretion to determine who is an Eligible Claimant and to
18 designate the amount of the Gross Sum to be distributed to each Eligible Claimant
19 consistent with Section VIII above.
20 3. Within one hundred twenty (120) days of the final re-mailing required in Section VIII.D.
21 above, the EEOC shall issue a Distribution List(s) to Defendant and the Claims
22 Administrator. The EEOC’s Distribution List shall detail the amount to be designated as
23 wages, subject to withholding taxes and other deductions Defendant is required by law to
24 make, including but not limited to FICA and FUTA taxes; the amount, if any, to be
25 designated as appropriately reported on a 1099; and the name and address to which each
26 Eligible Claimant’s portion and amount of monetary relief shall be delivered.
27 4. Within fifteen (15) days of receipt of the EEOC’s Distribution List, Defendant or its
28 Claims Administrator shall send a check or checks, via first class, certified mail, to each
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1 Eligible Claimant at the address provided by the EEOC in its Distribution List(s). For
2 each back pay check, Defendant shall pay the employer’s portion of all deductions
3 required by law, including but not limited to FICA and FUTA taxes, and such amounts
4 shall not be deducted from payment of the monetary settlement amounts to the Eligible
5 Claimants. Each check will remain valid for 180 days. To the extent, the checks need to
6 be reissued, EEOC will notify Defendant or its Claims Administrator.
7 5. Defendant shall prepare and distribute W-2 and 1099 tax reporting forms to the Eligible
8 Claimants and shall make any appropriate reports for each to the Internal Revenue Service
9 and other tax authorities. Defendant shall be solely responsible for any costs associated
10 with the issuing and distributing W-2’s and 1099s to the Eligible Claimants. Within ten
11 (10) business days of the issuance of any W2 or 1099 form, Defendant shall provide a
12 copy of the related correspondence to the Regional Attorney, Anna Y. Park, U.S. Equal
13 Employment Opportunity Commission, 255 East Temple Street, 4th Floor, Los Angeles,
14 CA 90012.
15 6. At least every thirty (30) days after Defendant or its Claims Administrator issue checks
16 pursuant to the Distribution List(s), Defendant or its Claims Administrator shall identify
17 any check not negotiated and/or returned non-negotiated to Defendant or its Claim
18 Administrator, to enable the parties to track remaining funds for redistribution. In the
19 event there is a question regarding whether a check has been negotiated, Defendant will
20 work with the EEOC to determine when payment was rendered, including providing a
21 copy of the canceled check.
22 7. On a quarterly basis throughout the duration of this Decree, Defendant will notify the
23 EEOC of the remaining amount available out of the Gross Sum. . The EEOC may issue
24 additional Distribution List(s) through the first 24 months of this Decree.
25 8. No later than one year prior to the expiration of the term of this Decree, the EEOC shall
26 issue a “Final Distribution List” that shall include the names of any additional Eligible
27 Claimants and the amounts to be paid to such individuals. No further Distribution List
28
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1 shall be issued by the EEOC after the Final Distribution List is provided to Defendant or
2 its Claims Administrator.
3 9. The EEOC’s Final Distribution List shall detail the amount to be designated as wages,
4 subject to withholding taxes and other deductions Defendant is required by law to make,
5 including but not limited to FICA and FUTA taxes; the amount, if any, to be designated as
6 appropriately reported on a 1099; and the name and address to which each Eligible
7 Claimant’s portion and amount of monetary relief shall be delivered.
8 10. Within sixty (60) days of receipt of the EEOC’s Final Distribution List, Defendant or its
9 Claims Administrator shall forward via first class mail to each Eligible Claimant payment
10 for a gross amount equal to the full amount set forth in the Final Distribution List. For
11 each wage check, Defendant shall pay the employer’s portion of all deductions required
12 by law, including but not limited to FICA and FUTA taxes, and such amounts shall not be
13 deducted from payment of the monetary settlement amounts to the Charging Parties and
14 Identified Claimants. Within ten (10) business days of mailing the afore-mentioned
15 payments, Defendant or its Claims Administrator shall submit a copy of the checks and
16 any related correspondence to Anna Y. Park, Regional Attorney, U.S. Equal Employment
17 Opportunity Commission, 255 East Temple Street, 4th Floor, Los Angeles, California
18 90012.
19 11. Within sixty days (60) after issuance of payments according to the Final Distribution List,
20 any remaining monies in the Gross Sum can be donated to a charity that promote equal
21 opportunities for people with disabilities that is agreed upon by the parties.
22 F. Extending Deadline to Return Claims Forms for Good Cause
23 For good cause, the EEOC may grant an exemption of any above-cited deadline to return
24 a questionnaire; provided, however, that Defendant has no obligation to pay any money from the Gross
25 Sum to an Eligible or Potential Claimant after the date this Decree expires.
26
27
28
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1 IX.
2 GENERAL INJUNCTIVE RELIEF
3 The General and Specific Injunctive Relief in infra Sections IX and X apply to all of Defendant’s
4 facilities nation-wide.
5 A. Non-Discrimination:
6 Defendant, its officers, agents, employees (including all managerial and non-managerial
7 employees), successors and assigns, during the period that this Decree is in effect, and all those in active
8 concert or participation with Defendant, are hereby enjoined from engaging in any conduct that violates
9 the terms of the Americans with Disabilities Act of 1990 (“ADA”), as amended, the ADA Amendment
10 Act of 2008 (“ADAAA”), and Title I of the Civil Rights Act of 1991 including: discriminating against,
11 harassing, or engaging in or being a party to any action, policy or practice that discriminates against any
12 employee in violation of the ADA, including on the basis of their disabilities, perceived disabilities
13 and/or records of disabilities. However, the parties to this Decree agree that there is no individual
14 liability for violation of this Decree, the ADA, ADAAA, or Title I of the Civil Rights Act, and, as such,
15 no individual officer, director, agent, successor or assign may shall be named by the EEOC in any action
16 to enforce this Decree.
17 B. Non-Retaliation:
18 Defendant, its officers, agents, employees (including all managerial and non-managerial
19 employees), its successors, assigns, during the period this Decree is in effect, and all those in active
20 concert or participation with them, are hereby enjoined from implementing or permitting any action,
21 policy or practice with the purpose of retaliating against any current or former employee or applicant of
22 Defendant or its successors, or either of them, because he or she has in the past, or during the term of
23 this Decree: (a) opposed any practice made unlawful under the ADA or ADAAA; (b) filed a charge of
24 discrimination alleging such practice; (c) participated in any manner in an internal or external
25 investigation or proceeding relating to this case or any claim of a violation of the ADA or ADAAA; (d)
26 was identified as a possible witness or claimant in this action; and/or (e) asserted any right under this
27 Decree; (f) sought and/or received any relief in accordance with this Decree are associated with an
28 employee who has engaged in the activities set forth in this section. However, the parties to this Decree
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1 agree that there is no individual liability for violation of this Decree, the ADA, or the ADAAA, and, as
2 such, no individual officer, director, agent, successor or assign may shall be named by the EEOC in any
3 action to enforce this Decree.
4 C. The Interactive Process
5 Defendant, its successors, assigns, and all those in active concert or participation with them, or
6 any of them, shall engage in the interactive process to identify and provide reasonable accommodations,
7 in accordance with the law, that may include leave as an accommodation, temporary or permanent job
8 reassignment, and/or modification of policies as appropriate.
9 D. 86’ed Policy
10 Defendant, its successors and assigns, and all those in active concert or participation with them,
11 or any of them, are hereby enjoined implementing any policy, procedure, or practice that summarily
12 prohibits employees that have sought a reasonable accommodation from re-entering any of Defendant’s
13 facilities. Defendant is further enjoined from prohibiting employees that have resigned or been
14 terminated for a reason other than engaging in inappropriate conduct or behavior from re-entering any of
15 Defendant’s facilities.
16 X.
17 SPECIFIC INJUNCTIVE RELIEF
18 A. Reemployment.
19 1. In the course of the duration of this Consent Decree, Eligible Claimant, who are no longer
20 employed by Defendant may express interest in returning to work for Defendant. Only Eligible
21 Claimants will be considered for reemployment pursuant to the terms of this Consent Decree.
22 2. Upon receipt of a questionnaire Form, the Monitor discussed in Section X.B. of this Decree will
23 make an initial determination based on the information provided on the face of the questionnaire 24 whether an Eligible Claimant or Potential Claimant has expressed an interest in reemployment. If the 25 Monitor determines that, based on the information provided on the face of the questionnaire, an Eligible 26 Claimant or Potential Claimant has expressed interest in reemployment, the Monitor shall notify 27 Defendant and the EEOC of that determination within fifteen (15) days of that determination. The 28
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1 EEOC will then work with Defendant to establish qualifications for reinstatement. If Defendant has an
2 open position for which the Potential Claimant or Eligible Claimant is qualified, and which the Potential 3 Claimant or Eligible Claimant can perform with or without a reasonable accommodation, Defendant will 4 work with the EEOC to reinstate the Potential or Eligible Claimant. If no position is immediately open, 5 Defendant will notify the EEOC within ten (10) business days of such position becoming available so 6 long as such position becomes available within 60 days of the original determination that the Potential or 7 Eligible Claimant can perform the essential functions of such position with or without a reasonable 8 accommodation. If the EEOC does not provide information to Defendant that establishes qualifications 9 for reinstatement, the Eligible Claimant or Potential Claimant will not be eligible for reinstatement. If, 10 upon evaluation of the information provided by the EEOC, Defendant does not agree that an Eligible 11 Claimant or Potential Claimant is qualified for reinstatement, the EEOC can avail itself of the 12 compliance procedures set forth in Section VI, above. 13 3. With respect to each Eligible Claimant who seeks reemployment, whether an offer of 14 reemployment was made, and whether the offer was accepted Eligible Claimants seeking reemployment 15
16 will be required to go through the normal processes required of all new employees. If Defendant
17 revokes an offer of reemployment, Defendant shall provide the EEOC, in writing, with the basis for the
18 revocation, including an explanation of Defendant’s reason for revoking the offer. If, upon evaluation of
19 the information provided by Defendant, the EEOC does not agree with Defendant’s determination that it
20 had legitimate reasons for revoking a conditional offer of reemployment, the EEOC can seek further
21 information from Defendant, including documents and access to further information. The information 22 and documents will be provided to the EEOC within thirty (30) days of EEOC’s request. The parties 23 will meet and confer to discuss the revocation of the offer. In the event of a dispute concerning the 24 revocation of a conditional offer, the EEOC can avail itself of the compliance procedures set forth in 25 Section VI, above. 26 4. If an Eligible Claimant rejects an offer of reemployment or does not report to work in accordance 27 with the terms of an offer of reemployment, Defendant has no further obligations relating to the 28 reemployment of that Eligible Claimant
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1 B. Equal Employment Opportunity Monitor
2 Within thirty (30) days after the Effective Date, Defendant shall retain an Equal Employment
3 Opportunity Monitor ("Monitor") with demonstrated experience in the area of creating effective policies,
4 procedures, practices and training regarding disabilities, reasonable accommodations, the interactive
5 process, and retaliation under the ADA, to monitor Defendant’s compliance with the ADA and the
6 provisions of this Decree. The Monitor shall be subject to the Commission's approval, which shall not
7 be unreasonably withheld. Defendant shall propose a Monitor to the Commission. If the Commission
8 does not approve the proposed Monitor, the Commission shall provide Defendant with a list of at least
9 three suggested candidates acceptable to the Commission. Defendant shall bear all costs associated with
10 the selection and retention of the Monitor and the performance of his/her/its duties. The Monitor's
11 responsibilities shall include:
12 1. Reviewing, revising, and implementing Defendant’s new policies and procedures
13 regarding the prevention of disability discrimination, providing reasonable accommodations, engaging
14 in the interactive process, and the prevention of retaliation;
15 2. Developing and providing training for all persons who work for Defendant on their rights
16 and responsibilities with regard to disability discrimination, reasonable accommodations, the interactive
17 process, and retaliation in compliance with the ADA and the terms of this Decree, including but not
18 limited to training employees how to request an accommodation; provided, however, that, with the
19 approval of the EEOC, the Monitor may utilize other qualified individuals to perform such training;
20 3. Creating, applying, and implementing the Defendant’s new reporting and auditing
21 procedures in compliance with Defendant’s obligations under this Decree and the ADA;
22 4. Training managerial and supervisory staff on their responsibilities with respect to the
23 ADA, including reasonable accommodations, the interactive process, and anti-retaliation policy;
24 5. Ensuring that all reports required by this Decree are accurately compiled and timely
25 submitted;
26 6. Developing procedures for responding to complaints of disability discrimination, the
27 failure to provide reasonable accommodations, and ensuring Defendant’s staff properly engage in the
28 interactive process;
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1 7. Ensuring and overseeing the proper investigation of all complaints of disability
2 discrimination, including whether a reasonable accommodation was denied in violation of the ADA, and
3 whether Defendant properly engaged in the interactive process;
4 8. Providing training on how to engage in the interactive process related to requests for
5 reasonable accommodation, including providing guidance to Defendant’s managers and supervisors on
6 how to properly respond to accommodation requests, monitoring the interactive process, and providing
7 feedback to managers and supervisors;
8 9. Implementing systems to ensure the preservation of all documents and communications
9 regarding all requests for a reasonable accommodation and the interactive process related to each
10 reasonable accommodation request, all complaints of disability discrimination, and responses to such
11 requests and/or complaints;
12 10. Further ensuring compliance with the terms of this Decree; and
13 11. Preparing a brief annual report on Defendant’s progress, including its compliance with
14 the terms of this Decree and the Monitor’s compliance with his/her responsibilities as articulated herein.
15 The Monitor shall ensure compliance for the foregoing provisions for the term of the Decree.
16 C. Policies and Procedures
17 Defendant, with the assistance of the Monitor, shall review, revise, distribute, and implement its
18 policies and procedures regarding disability, reasonable accommodations, and the interactive process to
19 comply with federal law (the “Policy”) on a company-wide basis. The Policy shall include:
20 1. A clear explanation of what constitutes a disability under the ADA, as well as the
21 ADA’s reasonable accommodation and interactive process requirements;
22 2. Clear and objective criteria that expressly prohibits discrimination on the basis of
23 disability and/or perceived disability;
24 3. A clearly described process by which employees may seek reasonable
25 accommodations through the interactive process, including: identify to whom an
26 employee may make requests for accommodation, the optional procedures for
27 communicating such requests, identify the decision maker or decision makers
28
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1 who grant(s) and/or den(y)(ies) requests for accommodation, and identify whom
2 an employee or applicant may contact if they have questions about the process;
3 4. Assurance that properly trained human resources personnel, management
4 officials, and supervisors shall be involved in the interactive process;
5 5. A clearly described complaint process that provides accessible avenues of
6 complaint to whom employees may report discrimination;
7 6. A complaint process that provides a prompt, thorough, and impartial
8 investigation that includes
9 a. A clearly described process that provides accessible and confidential
10 avenues of complaint with the contact information of persons both internal
11 (i.e. human resources) and external (i.e. the EEOC) to whom employees or
12 applicants for employment may report discrimination;
13 b. Assurance that Defendant will reasonably and to the best of its ability
14 protect the confidentiality of all discrimination complaints;
15 c. Assurance that Defendant will take immediate and appropriate corrective
16 action when it determines that discrimination and/or retaliation has
17 occurred; and
18 d. A procedure for development of a tracking system to be implemented by
19 Defendant that tracks discrimination and retaliation complaints to allow
20 Defendant to identify individuals who have been the subject of more than
21 one such complaint;
22 7. Assurance that Defendant will take immediate and appropriate corrective action
23 when it determines that discrimination and/or retaliation has occurred;
24 8. The elimination of any policy or practice that requires an employee seeking a
25 reasonable accommodation to reapply for an open position;
26 9. Assurance that Defendant will, reasonably and to the best of its ability, protect the
27 confidentiality of all reasonable accommodation requests;
28
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1 10. Require Defendant to hold all employees, including management, supervisory,
2 lead and human resources employees, accountable for engaging in conduct
3 prohibited under the ADA, the Policy, and this Decree; and
4 11. Use the Accommodation Log described in subsection C below to conduct an audit
5 to determine whether any management, supervisory, or human resources
6 employees failed to properly respond to requests for reasonable accommodations.
7 Within thirty (30) days of the Effective Date of this Decree, Defendant shall provide to the
8 EEOC a copy of the Policy. Within sixty (60) days of the Effective Date, Defendant shall ensure that it
9 has distributed its Policy to each managerial and non-managerial employee. Within sixty (60) days of
10 the Effective Date, Defendant shall also submit to the Commission a statement confirming distribution
11 of the Policy. For each new managerial and non-managerial employee hired after the initial distribution
12 of the Policy described above, Defendant shall ensure that the new employee and/or manager receives
13 the Policy within thirty (30) days of employment.
14 D. Accommodation Log
15 Defendant shall create and maintain an Accommodation Log that documents any
16 accommodation requests pertaining to any applicant or employee. Defendant shall retain all documents
17 relating to any accommodation requests identified in the Accommodation Log. In the event an employee
18 makes any subsequent request to modify an accommodation or implement a different accommodation,
19 Defendant shall include in the Accommodation Log the information required by this section. The
20 Accommodation Log shall include the following information:
21 1. Name of person making the request;
22 2. Date of the request;
23 3. Physical or mental impairment identified by the applicant or employee;
24 4. Any person to whom the request for accommodation was made;
25 5. Accommodation(s) requested, if any;
26 6. Any person involved in the interactive process;
27 7. Any records or documents made or reviewed in the course of engaging in the
28 interactive process;
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1 8. Any person involved in the decision-making process regarding the request for
2 accommodation;
3 9. Accommodation provided, if any;
4 10. The reason for the decision to provide or refuse any accommodation;
5 11. Complaints made by individuals regarding accommodation issues, disability
6 discrimination issues, and/or retaliation issues; and
7 12. Whether any modification or additional accommodations in conjunction with the
8 original accommodation were sought and if such requests were granted or denied.
9 E. Training
10 1. All Employees
11 Within 180 days of the Effective Date of this Decree, Defendant, in consultation with the
12 Monitor, shall provide live and interactive training, lasting at least 90 minutes in duration, to all
13 Defendant’s non-supervisory employees. The training shall be in a language the employees understand
14 and shall cover the revised Policy and the ADA and ADAAA. The training shall further address the
15 following:
16 a. The role and purpose of the ADA and ADAAA, including what constitutes
17 unlawful discrimination and the denial of a reasonable accommodation;
18 b. The rights and responsibilities under the ADA and ADAAA, including, but
19 not limited to engaging the interactive process and how to provide, request,
20 and obtain a reasonable accommodation;
21 c. Defendant’s policies and procedures for reasonable accommodation requests,
22 including engaging in the interactive process;
23 d. The type of conduct that is considered discriminatory under the ADA and
24 ADAAA; and
25 e. Defendant’s policies and procedures for reporting and handling complaints of
26 disability discrimination and retaliation. Examples shall be given of the
27 prohibited conduct to ensure understanding by the employees.
28
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1 The training set forth above shall be mandatory and occur once a year for the duration of this
2 Decree. All persons required to attend such training shall verify their attendance in writing. The training
3 set forth above may be videotapes so that any employee unable to attend any scheduled training shall be
4 trained within sixty (60) days of the live training set forth above.
5 Every six (6) months during the term of this Decree, all employees hired, but who have not
6 otherwise been trained as indicated above, will receive the ninety (90) minute training as described
7 above. All persons required to attend such training shall verify their attendance in writing.
8 2. Managerial and Supervisory Employees
9 In consultation with the Monitor, Defendant shall provide a live, interactive Management
10 Training to all managerial, supervisory, and lead employees of at least two (2) hour duration once every
11 year for the term of this Decree. The first Management Training shall occur within ninety (90) days of
12 the effective date of this decree and shall include training on how to:
13 a. Identify who is protected under the ADA and ADAAA;
14 b. Recognize an accommodation request or potential need for an accommodation
15 for individuals with disabilities;
16 c. Engage in the interactive process to handle reasonable accommodation
17 requests;
18 d. Recognize and prevent disability discrimination; and
19 e. Properly handle and investigate complaints of disability discrimination in a
20 neutral manner.
21 All persons required to attend such training shall verify their attendance in writing. Any
22 managerial, supervisory, and lead employee unable to attend any scheduled Management Training shall
23 be trained within sixty (60) days of the live training set forth above. The training set forth above may be
24 videotapes so that any managerial, supervisory or lead employee unable to attend any scheduled training
25 may shall be trained within sixty (60) days of the live training set forth above.
26 Within 120 days of the hire date of any managerial, supervisory, and lead employee hired after
27 the annual training but within the term of the Decree, Defendant shall provide a live Management
28
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1 Training covering the same issues set forth above. All persons required to attend such training shall
2 verify their attendance in writing.
3 3. Human Resources Employees
4 In consultation with the Monitor, Defendant shall provide a live, interactive, advanced Human
5 Resources Training (“HR Training”) to all human resources employees of at least two (2) hours duration
6 once a year for the term of this Decree. The training shall address the topics covered in subsection D.2
7 as well as the following:
8 a. The interactive process, include the necessity of communicating with every
9 party involved with a particular accommodation in order to assess the needs of
10 the employee requesting a reasonable accommodation;
11 b. Monitoring accommodations to ensure employees are effectively
12 accommodated and to ensure accountability of all parties involved in the
13 accommodation process;
14 c. Obligations under this Decree, including the duties regarding the
15 Accommodation Log;
16 d. Investigating and properly handling complaints of disability discrimination
17 and retaliation; and
18 e. Reviews of prior decision-making and responses to requests for reasonable
19 accommodation received in the past year.
20 All persons required to attend such training shall verify their attendance in writing. Any Human
21 Resources employee unable to attend any scheduled HR Training shall be trained within sixty (60) days
22 of the live training set forth above.
23 Within sixty (60) days of the hire date of any Human Resources employee hired after the annual
24 training but within the term of the Decree, Defendant shall provide a live HR Training covering the
25 same issues set forth above. All persons required to attend such training shall verify their attendance in
26 writing.
27 4. Verification of Training
28 Within sixty (60) days of the first trainings to be performed pursuant to this Decree and annually
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1 thereafter, Defendant shall produce to the EEOC documents verifying the occurrence of all training
2 sessions conducted as required under this Decree, including the written training materials used, a
3 description of the training provided, a list of the individuals who conducted the training, and a list of the
4 names and job titles of attendees at each training session.
5 The EEOC shall have the right to attend the trainings described in the Decree. Thirty (30) days
6 prior to any training, Defendant shall provide written notice to EEOC including the time, location, name
7 and contact information of the trainer. The written notice shall be sent via U.S. Mail to the attention of
8 Anna Y. Park, Regional Attorney, U.S. Equal Employment Opportunity Commission, 255 East Temple
9 Street, 4th Floor, Los Angeles, California, 90012.
10 F. Record Keeping
11 Defendant shall work with the Monitor to establish a record-keeping procedure that provides for
12 the centralized tracking of reasonable accommodation requests and disability discrimination complaints.
13 The records to be maintained shall include:
14 1. All documents generated in connection with any accommodations requests identified in
15 the Accommodation Log;
16 2. All documents generated in connection with any disability discrimination complaint,
17 including documents relating to all investigations or resolutions of any complaints, and the
18 identities of all witnesses identified by the complainant and/or through the Defendant’s
19 investigation;
20 3. All forms acknowledging employees’ receipt of Defendant’s revised disability, reasonable
21 accommodation, interactive process, and anti-retaliation policies; and
22 4. All documents verifying the occurrence of all training sessions and names and positions of all
23 attendees for each session as required under this Decree.
24 Defendant will make the aforementioned records available to the EEOC within ten business days
25 following a written request by the EEOC.
26
27
28
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1 G. Notification Letters
2 Within thirty (30) days after the Effective Date Defendant shall send a letter to all employees
3 from the President reaffirming that Defendant ended its 100% healed policy and Defendant’s
4 commitment to engaging in the interactive process to provide reasonable accommodations.
5 H. Reporting
6 Defendant, through its EEOC Monitor shall provide the following reports annually throughout
7 the term of this Decree:
8 1. The attendance lists of all attendees for all training sessions required under this Decree
9 that took place during the previous twelve months;
10 2. Acknowledgement of receipt of the Policy for all employees during the previous twelve
11 months;
12 3. Confirm that the Notification Letters set forth in Section H were sent to each employee.
13 4. A copy of the Accommodations Log created pursuant to Section C.
14 5. A description of all disability discrimination and/or retaliation complaints made since the
15 submission and Defendant’s investigation of these complaints. The description shall include the
16 following for each complaint during the reporting period:
17 (a) the name and title of the complaining party(ies);
18 (b) the date of the complaint;
19 (c) the nature of the complaint (i.e. comments, acts, etc.)
20 (d) the names of alleged perpetrators of discrimination or retaliation;
21 (e) the dates of the alleged discrimination or retaliation;
22 (f) the date of the commencement and completion of the investigation;
23 (g) a brief description of the investigation (i.e. identity of employee(s) who
24 investigated, number of persons interviewed, materials reviewed); and
25 (h) a brief summary of how each complaint was resolved.
26 6. A report detailing the results of the Accommodation log audit as described in Section
27 X.C.11;
28 7. The status of Defendant’s compliance with the terms of this Decree;
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1 8. Whether any revisions of Defendant’s policies and procedures regarding reasonable
2 accommodation, disability discrimination, or retaliation have occurred since the
3 preceding report, including a copy of the revised policies or procedures;
4 9. The names of any Potential Claimants that have been re-employed pursuant to Section
5 X.A;
6 10. The names of any Potential Claimants that reject Defendant’s offer of re-employment
7 pursuant to Section X.A.
8 All reports under this Paragraph shall be directed to: U.S. Equal Employment Opportunity
9 Commission, Attn. Regional Attorney, 255 E. Temple Street, 4th Floor, Los Angeles, CA 90012.
10 XI.
11 COSTS OF ADMINISTRATION AND IMPLEMENTATION
12 OF CONSENT DECREE
13 Defendant shall bear all costs associated with its administration and implementation of its
14 obligations under this Consent Decree.
15 XII.
16 COSTS AND ATTORNEYS’ FEES
17 Each party shall bear its own costs of suit and attorneys’ fees.
18 XIII.
19 NO ADMISSION OF WRONGDOING AND PRESS RELEASE
20 By entering into this Consent Decree Defendant does not admit to and expressly denies
21 wrongdoing as may be inferred or implied herein.
22 XIV.
23 MISCELLANEOUS PROVISIONS
24 A. During the term of this Consent Decree, Defendant shall provide any potential successor-
25 in-interest with a copy of this Consent Decree within a reasonable time of not less than thirty (30) days
26 prior to the execution of any agreement for acquisition or assumption of control of any or all of
27 Defendant’s facilities, or any other material change in corporate structure, and shall simultaneously
28 inform the EEOC of same.
24 Case 2:18-cv-00954-JCM-CWH Document 67 Filed 05/29/1806/05/18 Page 25 of 2527
1 B. During the term of this Consent Decree, Defendant shall assure that each of its officers,
2 managers and supervisors is aware of any term(s) of this Decree that may be related to his/her job duties.
3 C. Unless otherwise stated, all notices, reports and correspondence required under this
4 Decree shall be delivered to the attention of Anna Y. Park, Regional Attorney, U.S. Equal Employment
5 Opportunity Commission, 255 East Temple Street, 4th Floor, Los Angeles, CA, 90012; facsimile
6 number (213) 894-1301.
7 D. The Parties agree to entry of this Decree and judgment subject to final approval by the
8 Court.
9 All parties, through the undersigned, respectfully apply for and consent to this entry of this
10 Consent Decree Order. Respectfully submitted, 11 12 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 13 Date: 5/17/18 /s/ Anna Y. Park 14 By: Anna Y. Park 15 Attorney for Plaintiff EEOC
16 JACKSON LEWIS, P.C.
17 Date: 5/17/18 /s/ Elayna J. Youchah 18 By: Elayna J. Youchah Attorney for Defendant Nevada Restaurant 19 Services, Inc.
20 Date: 5/17/18 /s/ Paula Graziano 21 By: Paula Graziano, President Nevada Restaurant Services, Inc. 22 23 ORDER The provisions of the foregoing Consent Decree are hereby approved and compliance with all 24 provisions thereof is HEREBY ORDERED. 25
26 June 5, 2018 Date: 27 The Honorable 28 United States District Judge
25 CaseCase 2:18-cv-00954-JCM-CWH2:18-cv-00954-JCM-CWH DocumentDocument 76-1 Filed Filed 06/05/18 05/29/18 Page Page 26 1 of of 27 2
Anna Y. Park, CA SBN 164242 1 Sue J. Noh, CA SBN 192134 2 Rumduol Vuong, CA SBN 264392 U.S. EQUAL EMPLOYMENT 3 OPPORTUNITY COMMISSION 255 East Temple Street, Fourth Floor 4 Los Angeles, CA 90012 5 Telephone: (213) 894-1083 Facsimile: (213) 894-1301 6 E-Mail: [email protected] 7 Nechole M. Garcia, NV SBN 12746 8 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 9 333 Las Vegas Boulevard South, Suite 8112 10 Las Vegas, NV 89101 Telephone: (702) 388-5072 11 Facsimile: (702) 388-5094 E-Mail: [email protected] 12
13 UNITED STATES DISTRICT COURT 14 DISTRICT OF NEVADA
15 U.S. EQUAL EMPLOYMENT OPPORTUNITY ) Case No.: 2:18-cv-00954 JCM-CWH COMMISSION, ) ) 16 ) 17 Plaintiff, ) CERTIFICATE OF SERVICE v. ) 18 ) RE: CONSENT DECREE; PROPOSED NEVADA RESTAURANT SERVICES, Inc. and ) ORDER 19 ) Does 1-5 Inclusive, ) 20 ) Defendants. ) 21 ______)
22
23 24 25 26 27 28
-1- CaseCase 2:18-cv-00954-JCM-CWH2:18-cv-00954-JCM-CWH DocumentDocument 76-1 Filed Filed 06/05/18 05/29/18 Page Page 27 2 of of 27 2
1 CERTIFICATE OF SERVICE 2 I am, and was at the time the herein mentioned delivery took place, a citizen of the 3 United States, over the age of eighteen (18) years. 4 I am employed in the Legal Unit of the Los Angeles District Office of the United States 5 Equal Employment Opportunity Commission. 6 My business address is U.S. Equal Employment Opportunity Commission, Los Angeles 7 District Office, 255 East Temple Street, 4th Floor, Los Angeles, California 90012. 8 On the date that this declaration was executed, as shown below, I served the foregoing: 9 CONSENT DECREE; PROPOSED ORDER via first class U.S. Postal Service, postage 10 prepaid, to:
11 Elayna J. Youchah 12 Jackson Lewis 3800 Howard Hughes Parkway 13 Suite 600 Las Vegas, NV 89169 14 [email protected] 15 (702)921-2474
16
17 I declare under penalty of perjury that the foregoing is true and correct. Executed on 18 May 29, 2018. 19
20 /s/ Anna Y. Park 21 Anna Y. Park
22 23 24 25 26 27 28
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915 F.3d 631 West Headnotes (8) United States Court of Appeals, Ninth Circuit.
U.S. EQUAL EMPLOYMENT OPPORTUNITY [1] Civil Rights COMMISSION, Plaintiff-Appellant, Multiple entities; third parties v. GLOBAL HORIZONS, INC., dba Global Horizons Individual can have more than one employer for Manpower, Inc.; Green Acre Farms, Inc.; Valley Title VII purposes. Civil Rights Act of 1964 § Fruit Orchards, LLC; Does, 1–10 Inclusive, 703, 42 U.S.C.A. § 2000e-2(a). Defendants-Appellees.
No. 16-35528 Cases that cite this headnote | Argued and Submitted June 13, 2018 Seattle, Washington | Filed February 6, 2019 [2] Civil Rights Nature and existence of employment relationship
Synopsis Courts should use common-law agency Background: Equal Employment Opportunity principles to analyze existence of Commission (EEOC) brought action alleging that fruit employer-employee relationship for Title VII growers and labor contractor subjected foreign guest purposes. Civil Rights Act of 1964 § 701, 42 workers to poor working conditions, substandard living U.S.C.A. §§ 2000e(b), 2000e(f). conditions, and unsafe transportation on basis of their race and national origin, in violation of Title VII. The United States District Court for the Eastern District of Cases that cite this headnote Washington, No. 2:11-cv-03045-EFS, Edward F. Shea, Senior Judge, granted in part growers’ motions to dismiss, 2012 WL 3095577, denied in part EEOC’s motions to compel discovery, 2014 WL 11429299, granted growers’ motion for summary judgment, 23 F.Supp.3d 1301, and [3] Statutes granted growers’ motions for attorney fees, 100 Common or Civil Law F.Supp.3d 1077, 2015 WL 10987074, 2015 WL 10987075. EEOC appealed. Lack of congressional guidance often reflects expectation that courts will look to common law to fill gaps in statutory text, particularly when undefined term has settled meaning at common Holdings: The Court of Appeals, Watford, Circuit Judge, law. held that:
[1] EEOC plausibly pled that growers and contractor were Cases that cite this headnote joint employers, and
[2] EEOC plausibly pled grower’s liability under Title VII as joint employer for contractor’s discriminatory treatment of foreign guest workers. [4] Civil Rights Nature and existence of employment relationship Reversed and remanded. In analyzing whether requisite control exists to establish that hiring party is hired party’s “employer” for Title VII purposes, factors that © 2019 Thomson Reuters. No claim to original U.S. Government Works. 1
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court may consider include: skill required; 42 U.S.C.A. §§ 2000e(b), 2000e(f); 20 C.F.R. § source of instrumentalities and tools; location of 655.102(b)(1), (4), (5)(iii). work; duration of relationship between parties; whether hiring party has right to assign additional projects to hired party; extent of hired Cases that cite this headnote party’s discretion over when and how long to work; method of payment; hired party’s role in hiring and paying assistants; whether work is part of hiring party’s regular business; whether [7] hiring party is in business; provision of Civil Rights employee benefits; and hired party’s tax Multiple entities; third parties treatment. Civil Rights Act of 1964 § 701, 42 U.S.C.A. § 2000e(b). Even if joint-employment relationship exists, one joint employer is not automatically liable under Title VII for other employer’s actions, and Cases that cite this headnote liability may be imposed for co-employer’s discriminatory conduct only if defendant employer knew or should have known about other employer’s conduct and failed to undertake prompt corrective measures within its [5] Civil Rights control. Civil Rights Act of 1964 § 703, 42 Multiple entities; third parties U.S.C.A. § 2000e-2(a).
Economic-reality test, focusing on whether workers are economically dependent on alleged Cases that cite this headnote joint employer, is not applicable in determining whether employment relationship exists for Title VII purposes. Civil Rights Act of 1964 § 701, 42 U.S.C.A. §§ 2000e(b), 2000e(f). [8] Civil Rights Multiple entities; third parties Cases that cite this headnote Equal Employment Opportunity Commission (EEOC) plausibly pled fruit grower’s liability under Title VII as joint employer for labor contractor’s discriminatory treatment of foreign [6] Civil Rights guest workers brought from Thailand to United Multiple entities; third parties States to work in its orchards by alleging that some workers told grower’s employees, Equal Employment Opportunity Commission including its co-owner, that contractor was (EEOC) plausibly pled that fruit growers and subjecting them to abysmal living conditions, labor contractor were joint employers of Thai unsafe transportation, and missing or late wages, workers brought to United States as temporary and that similarly situated Mexican workers guest workers to work in fruit orchards as to were not subject to same substandard conditions, non-orchard-related matters by alleging that, and that grower could have taken corrective although growers’ contract with contractor action to stop discrimination, but failed to do so. delegated to contractor responsibility for Civil Rights Act of 1964 § 703, 42 U.S.C.A. § providing housing, access to cooking facilities, 2000e-2(a). transportation, and wages for workers, federal regulations imposed on growers ultimate obligation to provide foreign guest workers with Cases that cite this headnote housing, transportation, and either low-priced meals or access to cooking facilities, and that growers met both prongs of regulatory definition of “employer.” Civil Rights Act of 1964 § 701,
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Attorneys and Law Firms insolvent by the time the EEOC brought suit. This case thus focuses solely on the liability of the Growers. *632 Gail S. Coleman (argued), Elizabeth E. Theran, and Jeremy D. Horowitz, Attorneys; Lorraine C. Davis, Title VII imposes liability for discrimination on Assistant General Counsel; Jennifer S. Goldstein, “employer[s].” 42 U.S.C. § 2000e-2(a). The threshold Associate General Counsel; James L. Lee, Deputy question raised in this appeal is whether the Growers and General Counsel; Equal Employment Opportunity Global Horizons were joint employers of the Thai Commission, Office of General Counsel, Washington, workers for Title VII purposes. D.C.; for Plaintiff-Appellant. At the motion to dismiss stage, the district court divided Justo G. Gonzalez (argued), Lance A. Pelletier, and the EEOC’s allegations into those involving Brendan V. Monahan, Stokes Lawrence, P.S., Seattle, “orchard-related matters” (referring to working conditions Washington, for Defendants-Appellees. at the orchards) and those involving “non-orchard-related matters” (referring to housing, meals, transportation, and Appeal from the United States District Court for the payment of wages). The district court then held that the Eastern District of Washington, Edward F. Shea, Senior EEOC had plausibly alleged the Growers were joint District Judge, Presiding, D.C. No. 2:11-cv-03045-EFS employers of the Thai workers as to orchard-related matters, but not as to non-orchard-related matters. The Before: Ronald M. Gould and Paul J. Watford, Circuit court accordingly dismissed all allegations against the Judges, and Barbara Jacobs Rothstein,* District Judge. Growers relating to non-orchard-related matters.
Following that decision, the district court (1) granted in
part the Growers’ motions to dismiss; (2) denied in part
the EEOC’s motions to compel discovery; (3) granted the Growers’ motion for summary judgment; and (4) granted the Growers’ motions for attorney’s fees on the ground that the EEOC’s claims were frivolous and without OPINION foundation from the outset. The *634 EEOC challenges each of these orders on appeal.
WATFORD, Circuit Judge: We reverse the district court’s dismissal of the EEOC’s allegations regarding non-orchard-related matters, which *633 Green Acre Farms and Valley Fruit Orchards (the in turn affects each of the other decisions under review. Growers) are fruit growers in the State of Washington. In All parties agree that the Growers and Global Horizons 2003, the Growers experienced labor shortages and were joint employers of the Thai workers with respect to entered into agreements with Global Horizons, Inc., a orchard-related matters. Thus, the salient question before labor contractor, to obtain temporary workers for their us is whether the EEOC plausibly alleged that the orchards. With the Growers’ approval, Global Horizons Growers were also joint employers with respect to recruited workers from Thailand and brought them to the non-orchard-related matters. We conclude that the EEOC United States under the H-2A guest worker program, has so alleged. We also conclude that the EEOC’s which allows agricultural employers to hire foreign allegations state a plausible basis for holding Green Acre workers for temporary and seasonal work. liable for discrimination relating to non-orchard-related matters, and that the district court should have granted the In 2006, two of the Thai workers filed discrimination EEOC leave to amend its complaint regarding Valley charges against the Growers and Global Horizons with the Fruit’s liability with respect to such matters. Those Equal Employment Opportunity Commission (EEOC). conclusions require us to reverse each of the four rulings After an investigation, the EEOC brought this action the EEOC challenges. under Title VII of the Civil Rights Act of 1964. The EEOC alleged, among other things, that the Growers and Global Horizons subjected the Thai workers to poor working conditions, substandard living conditions, and unsafe transportation on the basis of their race and national origin. The district court entered a default judgment against Global Horizons after it discontinued its I defense in the action; Global Horizons was financially
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In 2003, Green Acre and Valley Fruit began to experience that the workers’ housing and transportation satisfy all labor shortages and contracted with Global Horizons to applicable health and safety regulations. Id. In addition, obtain temporary workers for their orchards. Each Grower the regulations require the employer to provide H-2A separately entered into labor agreements with Global workers with three meals a day at nominal cost or access Horizons covering the periods February–November 2004 to free cooking facilities that the workers can use to and January–November 2005. Pursuant to the contracts, prepare their own meals. § 655.102(b)(4). Furthermore, Global Horizons agreed to recruit foreign workers for the the regulations require the employer to pay H-2A workers Growers through the H-2A guest worker program. at least twice per month at a specific wage rate set by the Department of Labor. § 655.102(b)(9)–(10). The H-2A program, which is administered by the Department of Labor, allows employers to hire foreign Under their labor contracts, the Growers and Global workers for agricultural labor on a temporary or seasonal Horizons agreed to share responsibility for managing the basis. See 8 U.S.C. § 1101(a)(15)(H)(ii)(a). Congress Thai workers and for fulfilling the various H-2A designed the program to “balance two competing requirements. At the orchards, the Growers agreed to interests: to assure employers an adequate labor force on provide general management and oversight, which the one hand and to protect the jobs of citizens on the included determining the number of workers needed for other.” Orengo Caraballo v. Reich, 11 F.3d 186, 190 each task, setting quotas for work output, and inspecting (D.C. Cir. 1993) (alteration and internal quotation marks the quality of the work. Global Horizons likewise agreed omitted). to provide day-to-day supervision over the workers. As to the H-2A requirements, Global Horizons agreed to The H-2A program imposes a number of requirements on provide the Thai workers with housing and transportation employers reflecting these competing interests. For and to pay them the appropriate wages. The contracts example, in order to participate in the program, an were silent as to which party bore responsibility for employer must first obtain a labor certification from the providing the workers with meals or access to cooking Secretary of Labor by showing: facilities, but Global Horizons agreed to provide the workers with any legally required “ancillary support, (A) there are not sufficient workers who are able, equipment, supplies, transportation and facilities,” which willing, and qualified, and who will be available at the encompassed meals or cooking facilities. In exchange, the time and place needed, to perform the labor or services Growers agreed to compensate Global Horizons for the involved in the petition, and Thai workers’ wages and benefits and to pay Global Horizons an additional fee for its services. (B) the employment of the alien in such labor or services will not adversely affect the wages and According to the allegations in the EEOC’s complaint, the working conditions of workers in the United States Growers and Global Horizons engaged in a similarly employed. discriminatory and exploitative scheme to recruit the H-2A workers. They allegedly targeted impoverished 8 U.S.C. § 1188(a)(1). In its certification application, the Thai nationals to work at the orchards in the belief that employer must specify the number of foreign workers that such workers would be more compliant and less likely to it needs to offset the shortage of American agricultural abscond than workers of other nationalities. Global 1 workers. 20 C.F.R. § 655.101(b)(1) (2004). The Horizons sent recruiters to Thailand to lure potential employer must also include a copy of its job offer in the workers with false promises of high wages and steady application. Id. The purpose of requiring the job offer is to employment. Global Horizons also charged the workers ensure that the employer is offering sufficient pay and exorbitant recruitment fees for the opportunity to work in benefits to H-2A guest workers so that the employment of the United States. To pay the fees, many of the Thai foreign workers does not adversely affect domestic workers were forced to mortgage their homes and land, workers. § 655.102(b). sometimes along with the homes and land of their relatives, and to incur other substantial debts. An employer is required to provide H-2A workers with certain non-wage benefits as part of the job offer, most With respect to orchard-related matters, the Growers and notably housing, *635 meals, and transportation. The Global Horizons allegedly subjected the Thai workers to Department of Labor’s regulations spell out in some detail poor working conditions at the orchards. The Thai the nature of these benefits. For instance, the employer workers were mostly assigned to pick fruit and trim trees, must provide H-2A workers with housing and and the Growers set strict quotas for the amount of fruit to transportation to and from the worksite, free of charge. § be picked. According to the EEOC, supervisors pressured 655.102(b)(1), (b)(5)(iii). The employer must also ensure © 2019 Thomson Reuters. No claim to original U.S. Government Works. 4
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the Thai workers to meet the quotas by verbally harassing those debts was to work in the United States. Exploiting them, calling them degrading names, and threatening that vulnerability, Global Horizons threatened to send the them with pay cuts, termination, and deportation. workers back to Thailand if they ever complained about Moreover, Global Horizons did not provide the Thai their poor working and living conditions. As added workers with the high wages or steady employment that it pressure, Global Horizons confiscated the workers’ had promised. Global Horizons often delayed paying the passports and employed guards to monitor the workers so workers or paid them too little, and there were weeks that they could not physically escape from the orchards. during which the workers had no work at all. The Growers and Global Horizons allegedly discriminated In 2006, two of the Thai workers filed charges of against the Thai workers and treated them differently discrimination with the EEOC. They claimed that the from the Mexican workers who also worked at the Growers and Global Horizons engaged in ongoing orchards. According to the EEOC, the Growers and *636 discrimination, harassment, and retaliation on the basis of Global Horizons assigned the Thai workers more national origin. The EEOC conducted an investigation demanding work, gave them fewer breaks, forced them to from 2006 to 2010 and found reasonable cause to believe work in extreme heat and in the rain, and gave priority to that the charges were true. After unsuccessful conciliation Mexican workers when there was a shortage of work. efforts, the EEOC filed the present action on behalf of the Thai workers. In the operative First Amended Complaint, With respect to non-orchard-related matters, Global the EEOC asserts four claims for relief under Title VII of Horizons allegedly subjected the Thai workers to the Civil Rights Act of 1964: (1) disparate treatment discriminatory treatment. According to the EEOC’s based on race or national origin; (2) hostile work complaint, Global Horizons provided the workers with environment and constructive discharge; (3) retaliation; overcrowded and nearly uninhabitable housing. The and (4) related pattern-or-practice claims. 42 U.S.C. §§ housing lacked adequate kitchen, bathroom, and laundry 2000e-2(a), 2000e-3(a). facilities, and sometimes lacked even running water or electricity. Some units were infested with mice, flies, and The district court granted in part the Growers’ motions to cockroaches. These conditions forced the Thai workers to dismiss the action under Federal Rule of Civil Procedure take desperate measures. Some urinated and defecated 12(b)(6). In the district court’s view, the EEOC had not outside because there were not enough bathrooms. Some plausibly alleged that the Growers were joint employers slept on the floor because there were not enough beds. of the Thai workers as to all employment matters. The Others dug through the trash to look for beds, mattresses, *637 court drew a distinction between orchard-related and kitchen equipment. Rather than provide meals for the matters (managing, supervising, and disciplining the Thai workers, Global Horizons chose to provide them with workers at the orchards) and non-orchard-related matters access to cooking facilities, at which the workers were (housing, feeding, transporting, and paying the workers). expected to prepare their own meals. But the Thai The court concluded that the Growers had outsourced the workers often did not have enough to eat because the non-orchard-related matters to Global Horizons, and that kitchen facilities and equipment were inadequate, and the Growers’ employment relationship with the Thai Global Horizons’ employees did not take the workers to workers therefore extended only to orchard-related the grocery store frequently enough. As a consequence, matters. Based on that conclusion, the court dismissed all some workers resorted to hunting rabbits or birds for allegations against the Growers relating to food. Global Horizons also exposed the workers to unsafe non-orchard-related matters. The court then decided that conditions when transporting them between their housing the remaining allegations were insufficient to sustain the and the orchards. The buses were so crowded that some of disparate treatment claim, the retaliation claim against the workers had to sit in the middle aisle of the bus, on Valley Fruit, and the related pattern-or-practice claims. water coolers, or on each other’s laps. According to the Later, in accordance with its earlier rulings, the court EEOC, the Growers and Global Horizons did not subject denied the EEOC’s motions to compel discovery to the Mexican workers to similarly appalling conditions. extent that those motions sought information related to non-orchard-related matters. Global Horizons allegedly took various measures to ensure that the Thai workers did not escape from (or After discovery concluded, the district court granted complain about) their dire circumstances. Global summary judgment in favor of the Growers on the Horizons exercised control over the workers in part by EEOC’s remaining Title VII claims: the hostile work taking advantage of their crippling debts. Many of the environment and constructive discharge claim, the workers had borrowed heavily to pay Global Horizons’ retaliation claim against Green Acre, and related recruitment fees, and their only opportunity to pay off pattern-or-practice claims. Having barred discovery for
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non-orchard-related matters, the court reviewed the Our court has not yet adopted a test for determining when claims only in light of evidence regarding orchard-related an entity may be held liable as a joint employer under matters. Based on that limited review, the court concluded Title VII. The EEOC correctly points out that we that no reasonable trier of fact could find that the Growers addressed this issue once before in EEOC v. Pacific had discriminated against the Thai workers in violation of Maritime Association, 351 F.3d 1270 (9th Cir. 2003), but Title VII. the panel opinion *638 in that case was vacated upon the grant of rehearing en banc. 367 F.3d 1167 (9th Cir. 2004). The district court then granted the Growers’ motions for The parties voluntarily dismissed the case before attorney’s fees. The court held that the EEOC had not rehearing occurred, so our court never issued an opinion conducted an adequate investigation before filing suit and sitting en banc. had pursued frivolous claims and remedies as a result. In particular, the court faulted the EEOC for predicating its We are therefore required to decide in the first instance claims on the theory that the Growers could be held liable what test to adopt for determining whether an entity is a as joint employers as to non-orchard-related matters. joint employer. Title VII itself does not shed much light on the answer. Under the statute, the term “employer” is After entry of final judgment, the EEOC filed this timely defined (subject to exclusions not relevant here) as “a appeal. person engaged in an industry affecting commerce who has fifteen or more employees ... and any agent of such a person.” 42 U.S.C. § 2000e(b). The term “employee” is defined (again subject to exclusions not relevant here) as “an individual employed by an employer.” § 2000e(f).
[2] [3]The Supreme Court has held that, when confronted II with “completely circular” definitions like these, courts should use common-law agency principles to analyze the Our analysis begins and largely ends with the district existence of an employer-employee relationship. court’s holding that the Growers could not be held liable Nationwide Mutual Insurance Co. v. Darden, 503 U.S. under Title VII for non-orchard-related matters. That 318, 323, 112 S.Ct. 1344, 117 L.Ed.2d 581 (1992). As the holding, which we conclude below was erroneous, Court has noted, a lack of congressional guidance “often provided the foundation for each of the orders the EEOC reflects an expectation that courts will look to the challenges on appeal. common law to fill gaps in statutory text, particularly
when an undefined term has a settled meaning at common
law.” Clackamas Gastroenterology Associates, P.C. v.
Wells, 538 U.S. 440, 447, 123 S.Ct. 1673, 155 L.Ed.2d 615 (2003). The Court has relied on common-law agency principles to flesh out the meaning of “employer” and A “employee” when construing other statutes that contain the same circular definitions as those found in Title VII. [1]Under Title VII, an entity can be held liable for See id. at 444–45, 123 S.Ct. 1673 (Americans with discrimination if it is an “employer” of the plaintiff. 42 Disabilities Act); Darden, 503 U.S. at 322–23, 112 S.Ct. U.S.C. § 2000e-2(a). It is now well-settled that an 1344 (Employee Retirement Income Security Act). We individual can have more than one employer for Title VII conclude that the common-law agency test should be purposes. See, e.g., Frey v. Hotel Coleman, 903 F.3d 671, applied in the Title VII context as well. 676–77 (7th Cir. 2018); Al-Saffy v. Vilsack, 827 F.3d 85, 96 (D.C. Cir. 2016); Faush v. Tuesday Morning, Inc., 808 [4]Under the common-law test, “the principal guidepost” is F.3d 208, 215 (3d Cir. 2015); Butler v. Drive Automotive the element of control—that is, “the extent of control that Industries of America, Inc., 793 F.3d 404, 408–10 (4th one may exercise over the details of the work of the Cir. 2015). The law recognizes that two entities may other.” Clackamas, 538 U.S. at 448, 123 S.Ct. 1673 simultaneously share control over the terms and (internal quotation marks omitted). The Court has conditions of employment, such that both should be liable provided a non-exhaustive list of factors to consider when for discrimination relating to those terms and conditions. analyzing whether the requisite control exists: See Butler, 793 F.3d at 408–10. The two entities in such circumstances are deemed to be joint employers of the employees in question. the skill required; the source of the © 2019 Thomson Reuters. No claim to original U.S. Government Works. 6
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instrumentalities and tools; the location of the work; the duration We acknowledge that there may be little functional of the relationship between the difference among the common-law agency test, the parties; whether the hiring party economic-reality test, and a third test that blends elements has the right to assign additional of the first two (the so-called “hybrid” test). See Murray projects to the hired party; the v. Principal Financial Group, Inc., 613 F.3d 943, 945 extent of the hired party’s (9th Cir. 2010). All three are fact-intensive tests that will discretion over when and how long usually produce the same outcome in a joint-employment to work; the method of payment; analysis. But Supreme Court precedent dictates that the the hired party’s role in hiring and common-law test governs when a statute does not paying assistants; whether the work meaningfully define terms like “employer” and is part of the regular business of the “employee.” See Clackamas, 538 U.S. at 444–45, 123 hiring party; whether the hiring S.Ct. 1673; Darden, 503 U.S. at 322–23, 112 S.Ct. 1344. party is in business; the provision Thus, we conclude that the common-law agency test is the of employee benefits; and the tax most appropriate one for Title VII purposes. treatment of the hired party.
Darden, 503 U.S. at 323–24, 112 S.Ct. 1344 (internal quotation marks omitted). There is “no shorthand formula” for determining whether an employment B relationship exists, so “all of the incidents of the relationship must be assessed and weighed with no one [6]The district court correctly determined that the EEOC’s factor being decisive.” Id. at 324, 112 S.Ct. 1344 (internal allegations are sufficient to establish that the Growers and quotation marks omitted). Global Horizons were joint employers as to orchard-related matters. The Growers do not contest that [5]We reject the chief alternative for analyzing determination on appeal. The only issue is whether the employment relationships in the Title VII context: the EEOC plausibly alleged that the Growers’ employment economic-reality test. That test focuses on whether relationship with the Thai workers also subsumed workers are economically dependent on the alleged joint non-orchard-related matters. Applying the common-law employer. Torres-Lopez v. May, 111 F.3d 633, 641 (9th agency test, we conclude that the EEOC adequately Cir. 1997). Like the common-law agency test, the alleged that element of its claims. economic-reality test provides a non-exhaustive list *639 of factors courts should consider. Id. at 639–40. However, In a typical employment relationship, the employer does the economic-reality test was developed in the context of not have control over non-workplace matters such as the Fair Labor Standards Act (FLSA) and the Migrant and housing, meals, and transportation. Employees are usually Seasonal Agricultural Worker Protection Act (AWPA), expected to find their own housing, provide for their own two statutes that differ from Title VII in material respects. meals, and arrange for their own transportation to and Unlike Title VII, both the FLSA and the AWPA provide from work. Those matters ordinarily do not constitute broad definitions of “employ” that expand the scope of terms and conditions of employment, so if an employee employment relationships beyond the common-law experiences discrimination in obtaining adequate housing, understanding. 29 U.S.C. §§ 203(g), 1802(5); see also for example, the employer would not be liable for failing Darden, 503 U.S. at 326, 112 S.Ct. 1344. In addition, the to stop that discrimination. Department of Labor has promulgated regulations under the FLSA and the AWPA to guide the analysis for joint The H-2A program establishes a different relationship employment. See 29 C.F.R. §§ 500.20(h)(5), 791.2. The between an employer and the foreign guest workers it economic-reality test is based on the broad statutory employs. As explained above, the H-2A regulations place definitions found in the FLSA and the AWPA and the on the shoulders of an “employer” (a defined term to regulatory guidance described above. See Torres-Lopez, which we will return in a moment) the legal obligation to 111 F.3d at 639–40; Bonnette v. California Health and provide foreign guest workers with housing, Welfare Agency, 704 F.2d 1465, 1469–70 (9th Cir. 1983). transportation, and either low-priced meals or access to Because those features are not present in the Title VII cooking facilities. 20 C.F.R. § 655.102(b)(1), (4), (5)(iii). scheme, we see no basis for supplanting the common-law Under the regulations, these benefits constitute “material test with the economic-reality test. terms and conditions of employment,” which must be © 2019 Thomson Reuters. No claim to original U.S. Government Works. 7
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stated in the job offer provided *640 to all potential H-2A workers. § 655.100(b). The H-2A program thus expands The terms of the contracts between the Growers and the employment relationship between an H-2A Global Horizons do not change this analysis. The “employer” and its workers to encompass housing, meals, contracts, it is true, delegated to Global Horizons and transportation, even though those matters would responsibility for providing housing, access to cooking ordinarily fall outside the realm of the employer’s facilities, transportation, and wages for the Thai workers. responsibility. But that contractual delegation did not absolve the Growers of their legal obligations as “employers” under The Growers contend that they were not “employers” of the H-2A regulations. Those obligations were imposed on the Thai workers with respect to non-orchard-related the Growers as a matter of law. The Growers were free to matters. In their view, only Global Horizons was the contract with another entity to help discharge their legal employer because it was the entity that recruited the obligations, but responsibility for compliance ultimately workers from Thailand, brought them to the United rested on the Growers’ shoulders. States, and contractually agreed to be responsible for paying their wages and providing the benefits required With this regulatory backdrop in mind, we must under the H-2A program. determine whether the EEOC has plausibly alleged that the Growers were joint employers under Title VII as to The plain language of the H-2A regulations, at least as non-orchard-related matters. Most of the factors we would they stood in 2004–2005, compels us to reject the typically consider in applying the common-law agency Growers’ argument. The regulations during that time test, see Darden, 503 U.S. at 323–24, 112 S.Ct. 1344, do period defined the term “employer” as an entity “which not apply here because we are not dealing with matters suffers or permits a person to work and (1) which has a ordinarily encompassed within an employment location within the United States to which U.S. workers relationship. *641 But the common law’s “principal may be referred for employment, and which proposes to guidepost”—the element of control—is determinative. employ workers at a place within the United States and Clackamas, 538 U.S. at 448, 123 S.Ct. 1673. As just (2) which has an employer relationship with respect to discussed, pursuant to the 2004–2005 H-2A regulations, employees under this subpart as indicated by the fact that the Growers were legally obligated to provide the Thai it may hire, pay, fire, supervise or otherwise control the workers with housing, meals, transportation, and wages. work of any such employee.” § 655.100(b). The The Growers possessed ultimate authority over those regulations also state that the “employers” who may matters, even though they delegated responsibility to utilize the H-2A program normally share certain Global Horizons and agreed to compensate Global characteristics, first among them “[a] fixed-site farm, Horizons for its services. If the Growers were dissatisfied ranch, or similar establishment.” § 655.93(a)(1). with the quality of Global Horizons’ services, they could have demanded changes, withheld payment, or ended the Under these provisions, the Growers qualify as contract with Global Horizons altogether. The power to “employers.” The Growers each own a fixed-site farm, control the manner in which housing, meals, and they meet both prongs of the regulatory definition of transportation, and wages were provided to the Thai “employer.” Each has a location in the United States at workers, even if never exercised, is sufficient to render which it proposed to employ foreign guest workers, and the Growers joint employers as to non-orchard-related neither Grower disputes that it had an employment matters. See Browning-Ferris Industries of California, relationship with those workers by virtue of its ability to Inc. v. NLRB, 911 F.3d 1195, 1209–1211 (D.C. Cir. “supervise or otherwise control the work” of the Thai 2018). workers. The Growers’ status as “employers” of the Thai workers is further confirmed by the fact that, at the time relevant here, foreign guest workers admitted under the H-2A program could work only at the farm or other fixed-site location designated in the certification order issued by the Department of Labor. § 655.106(c)(1). The regulations sensibly placed the obligation for providing C housing, meals, transportation, and wages on the owner of Although the EEOC has plausibly alleged that the the farm designated in the certification order, since the Growers were joint employers as to non-orchard-related foreign workers were admitted to the United States on a matters, that does not end our analysis. The EEOC alleged temporary basis solely to render services for the owner’s that Global Horizons, rather than the Growers, was the benefit. entity directly responsible for engaging in discriminatory
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U.S. Equal Employment Opportunity Commission v. Global..., 915 F.3d 631 (2019) 2019 Fair Empl.Prac.Cas. (BNA) 38,355, 19 Cal. Daily Op. Serv. 1326
conduct as to non-orchard-related matters. appropriate corrective action to stop Global Horizons’ discriminatory conduct. But the complaint does not [7]As our sister circuits have explained, even if a adequately allege that Valley Fruit knew or should have joint-employment relationship exists, one joint employer known about that conduct, a necessary condition to is not automatically liable for the actions of the other. See, trigger its obligation to take prompt corrective action. The e.g., Burton v. Freescale Semiconductor, Inc., 798 F.3d complaint alleges only that state and federal authorities 222, 228–29 (5th Cir. 2015); Whitaker v. Milwaukee were investigating Global Horizons for providing County, 772 F.3d 802, 811–12 (7th Cir. 2014). Liability substandard housing and inadequate wages during the may be imposed for a co-employer’s discriminatory time period in question here. The complaint does not conduct only if the defendant employer knew or should allege that Valley Fruit ever became aware of these have known about the other employer’s conduct and investigations, nor provide a plausible basis for inferring “failed to undertake prompt corrective measures within its that knowledge of the investigations would have alerted control.” EEOC, Notice No. 915.002, Enforcement Valley Fruit to the fact that Global Horizons was Guidance: Application of EEO Laws to Contingent allegedly discriminating against the Thai workers on the Workers Placed by Temporary Employment Agencies and basis of race or national origin. Other Staffing Firms, 1997 WL 33159161, at *11 (Dec. 3, 1997). We have employed that same negligence standard Nevertheless, we cannot affirm the district court’s in an analogous setting, involving an employer’s liability dismissal of the EEOC’s allegations against Valley Fruit for the discriminatory conduct of third parties in the with respect to non-orchard-related matters. The district workplace. See, e.g., Freitag v. Ayers, 468 F.3d 528, 538 court did not predicate dismissal of those allegations on (9th Cir. 2006) (subjecting Department of Corrections to the ground that they failed to raise a plausible inference liability for prisoners’ sexual harassment of female that Valley Fruit knew or should have known about guards); Little v. Windermere Relocation, Inc., 301 F.3d Global Horizons’ discriminatory conduct. It instead 958, 968 (9th Cir. 2002) (subjecting employer to liability dismissed those allegations on the ground that Valley for client’s rape of employee). We agree with the Fifth Fruit could not be found liable as a matter of law for and Seventh Circuits that this standard should govern in non-orchard-related matters. We have now reversed that the joint-employment context as well. See Burton, 798 ruling, and on remand the EEOC should be permitted an F.3d at 228–29; Whitaker, 772 F.3d at 811–12. opportunity to amend its complaint with respect to Valley Fruit’s liability as to non-orchard-related matters. From [8]The EEOC has plausibly alleged Green Acre’s liability the record before us, it does not appear as though as a joint employer for the discriminatory conduct of amendment in that regard would be futile. The record Global Horizons. In its complaint, the EEOC alleged that contains declarations from several Thai workers stating some of the Thai workers complained directly to Green that Valley Fruit personnel provided or directly observed Acre personnel, including its co-owner, about their the workers’ substandard living conditions, unsafe abysmal living conditions, unsafe transportation, and transportation, and inadequate wages. These declarations missing or late wages. According to the EEOC, the Thai suggest that, as with Green Acre, Valley Fruit knew or workers told Green Acre’s employees that similarly should have known that the Thai workers were being situated Mexican workers were not subject to the same treated less favorably than the Mexican workers. substandard conditions. These allegations give rise to the plausible inference that Green Acre knew or should have known about Global Horizons’ discriminatory conduct relating to non-orchard-related matters. As explained above, the EEOC’s allegations establish that Green Acre had ultimate control over those matters and thus could have taken corrective action to stop the discrimination. III According to the EEOC’s complaint, Green Acre *642 In light of the discussion above, we reverse each of the failed to take any such action. Accordingly, the EEOC has orders challenged on appeal. First, we reverse the district plausibly alleged Green Acre’s liability under Title VII court’s order granting in part the Growers’ motions to for discrimination relating to non-orchard-related matters. dismiss. The court erred by dismissing the EEOC’s
disparate treatment claim (and the related The EEOC’s allegations are thinner as they relate to the pattern-or-practice claim) on the ground that the Growers liability of Valley Fruit. As with Green Acre, the EEOC were not joint employers of the Thai workers as to plausibly alleged that Valley Fruit had ultimate control non-orchard-related matters. (The EEOC does not over non-orchard-related matters and failed to take challenge the dismissal of its retaliation claim or the
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U.S. Equal Employment Opportunity Commission v. Global..., 915 F.3d 631 (2019) 2019 Fair Empl.Prac.Cas. (BNA) 38,355, 19 Cal. Daily Op. Serv. 1326 related pattern-or-practice claim.) On remand, the district orchard-related and non-orchard-related matters. court is instructed to grant the EEOC leave to amend its complaint with respect to Valley Fruit’s liability as to Finally, we reverse the district court’s order granting the non-orchard-related matters. The court should then Growers’ motions for attorney’s fees, as the Growers are reconsider the disparate treatment claim (and the related no longer prevailing parties. See 42 U.S.C. § 2000e-5(k). pattern-or-practice claim) in light of the EEOC’s Moreover, the EEOC’s litigation position was not allegations regarding both orchard-related and frivolous, unreasonable, or without foundation. See non-orchard-related matters. Christianburg Garment Co. v. EEOC, 434 U.S. 412, 434 U.S. 412, 421, 54 L.Ed.2d 648 (1978). Second, we reverse the district court’s order denying the EEOC’s motions to compel discovery regarding the REVERSED and REMANDED WITH Growers’ liability with respect to non-orchard-related INSTRUCTIONS. matters. The court’s order was predicated on the incorrect premise that the Growers could not be held liable for The Growers’ motion to supplement the record on appeal, non-orchard-related matters as a matter of law. filed April 4, 2017, is DENIED.
Third, we reverse the district court’s order granting the Growers’ motion for summary judgment. At that stage, All Citations the *643 court reviewed the EEOC’s remaining Title VII claims only in light of the evidence regarding 915 F.3d 631, 2019 Fair Empl.Prac.Cas. (BNA) 38,355, orchard-related matters, after having cut off discovery for 19 Cal. Daily Op. Serv. 1326 all non-orchard-related matters. On remand, following appropriate discovery, the court is instructed to reconsider the EEOC’s claims in light of evidence regarding both
Footnotes
* The Honorable Barbara Jacobs Rothstein, United States District Judge for the Western District of Washington, sitting by designation.
1 Throughout this opinion, we refer to the version of the Department of Labor’s regulations in effect in 2004 and 2005, when the Growers contracted with Global Horizons to hire Thai workers through the H‐2A program. The regulations have been amended and renumbered several times since then.
End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works.
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Case 2:11-cv-03045-EFS Document 679 Filed 04/26/16
1
2
3
4
5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON
7 EQUAL EMPLOYMENT OPPORTUNITY No.: CV-11-3045-EFS COMMISSION, 8 ORDER GRANTING EEOC’S MOTION FOR Plaintiff, DEFAULT JUDGMENT (COMPENSATORY AND 9 PUNITIVE DAMAGES) AGAINST GLOBAL v. HORIZONS INC. D/B/A/ GLOBAL 10 HORIZONS MANPOWER, INC. GLOBAL HORIZONS, INC., d/b/a Global 11 Horizons Manpower, Inc.; GREEN ACRE FARMS, INC.; VALLEY FRUIT ORCHARDS, 12 LLC; and DOES 1-10 inclusive,
13 Defendants.
14
15 The Court previously entered an Order of Default against Global
16 for failure to enter a defense to the claims in the First Amended
17 Complaint (FAC). ECF No. 613. Later, it entered an Order Granting
18 Default Judgment in Part against Global but held it in abeyance pending
19 review of additional filings in support of the claimed compensatory and
20 punitive damages. ECF No. 667. EEOC filed its Supplemental Table in
21 Support of Plaintiff EEOC’s Request for Damages For Default Judgment
22 Against Global, ECF No. 678, as well as a declaration in support of its
23 claims for damages on behalf of the claimants with forty-five
24 attachments, ECF No. 678-1-45, and its supplemental brief, ECF No. 678-
25 46. In preparing its earlier orders, the Court reviewed the earlier
26 declarations filed in support of EEOC’s request of default judgment
ORDER GRANTING EEOC’s MOTION FOR DEFAULT JUDGMENT - 1 Case 2:11-cv-03045-EFS Document 679 Filed 04/26/16
1 against Global and for damages and requested the supplementation now
2 filed by EEOC.
3 Because of the entry of default judgment against Global, Global
4 is liable to EEOC on the asserted causes of action in the FAC with only
5 the issue of damages remaining. “The general rule of law is that upon
6 default the factual allegations of the complaint, except those relating
7 to the amount of damages, will be taken as true.” Geddes v. United Fin.
8 Grp., 559 F.2d 557, 560 (9th Cir. 1977); see also Fed. R. Civ. P. 8(b)(6)
9 (“An allegation—other than one relating to the amount of damages—is
10 admitted if a responsive pleading is required and the allegation is not
11 denied.”). This general rule is also based on Federal Rule of Civil
12 Procedure 55(b), which governs the entry of default judgment and permits
13 a court to hold a hearing if necessary to determine the amount of
14 damages. Geddes, 559 F.2d at 560.
15 Accordingly, the factual allegations in the FAC establish the
16 liability of Global on the causes of action asserted. On the issue of
17 damages, the Court has reviewed the declarations and supplemental
18 declarations of the claimants filed in support of EEOC’s request for
19 damages. EEOC requests an award of compensatory and punitive damages to
20 each claimant in the amount of $300,000.00, as permitted by statute.
21 In determining damages, the Court understands that burden of proving
22 damages after a default has been entered “is relatively lenient.” Philip
23 Morris USA, Inc. v. Castleworld Prods., Inc., 219 F.R.D. 494, 498 (C.D.
24 Cal. 2003) (citing Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty
25 Corp., 973 F.2d 155, 159 (2d Cir. 1992)).
26
ORDER GRANTING EEOC’s MOTION FOR DEFAULT JUDGMENT - 2 Case 2:11-cv-03045-EFS Document 679 Filed 04/26/16
1 Under 42 U.S.C. § 1981a(b)(3), an award of compensatory damages
2 is permitted for “emotional pain, suffering, inconvenience, mental
3 anguish, loss of enjoyment of life and other non-pecuniary losses,” as
4 caused by the conduct of Global. A preponderance of evidence must
5 support a finding that compensatory damages were caused by the conduct
6 of Global.
7 In considering an award of punitive damages, the Court generally
8 considers the criteria recognized by the Supreme Court in BMW of North
9 America, Inc. v. Gore, 517 U.S. 559 (1996), as clarified in State Farm
10 Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408, 418 (2003):
11 “The most important indicium of the reasonableness of a punitive damages
12 award is the degree of reprehensibility of the defendant’s conduct.”
13 Gore, 517 U.S. at 575. The factors to be considered in determining
14 reprehensibility are whether: “the harm caused was physical as opposed
15 to economic; the tortious conduct evinced an indifference to or reckless
16 disregard of the health or safety of others; the target of the conduct
17 had financial vulnerability; the conduct involved repeated actions or
18 was an isolated incident; and the harm was the result of intentional
19 malice, trickery, or deceit, of mere accident.” Id. at 576-577.
20 Punitive damages “are aimed at deterrence and retribution.” Campbell,
21 538 U.S. at 416.
22 However, those cases dealt with the application of the Due Process
23 Clause of the Fourteenth Amendment to state common law punitive damage
24 awards rather than as here an action under Title VII of the Civil Rights
25 Act of 1964 and Title I of the Civil Rights Act of 1991, acts designed
26 to protect against unlawful employment practices on the basis of
ORDER GRANTING EEOC’s MOTION FOR DEFAULT JUDGMENT - 3 Case 2:11-cv-03045-EFS Document 679 Filed 04/26/16
1 national origin, race, and retaliation and to provide remedies. See
2 generally Arizona v. Asarco, LLC, 773 F.3d 1050 (9th Cir. 2014) (en
3 banc) (involving a due process challenge to a federal court jury verdict
4 of nominal damages and punitive damages under Title VII, which was then
5 reduced by the district court judge to the statutory maximum of
6 $300,000).
7 The en banc Ninth Circuit Asarco court explained that due process
8 concerns and criteria expressed in both Gore and Campbell are met by
9 § 1981a because, “[T}he statute clearly sets forth the type of conduct,
10 and mind-set, a defendant must have to be found liable for punitive
11 damages. 42 U.S.C. § 1981a(b)(1) (“A complaining party may recover
12 punitive damages under this section against a respondent . . . if the
13 complaining party demonstrates that the respondent engaged in a
14 discriminatory practice or discriminatory practices with malice or with
15 reckless indifference to the federally protected rights of an aggrieved
16 individual.”). And § 1981a(b)(3) sets statutory caps on the award of
17 compensatory and punitive damages using a formula based on the number
18 of employees. 773 F.3d at 1056-57.
19 Guided by these principles, the Court now makes its Findings of
20 Fact:
21 1. Global intentionally recruited impoverished Thai workers for
22 its labor contracts in the United States believing that they
23 would be more manageable, less likely to complain about seizure
24 of their passports, less work than promised, or delay in wages
25 because they were desperate for the wages to pay off exorbitant
26
ORDER GRANTING EEOC’s MOTION FOR DEFAULT JUDGMENT - 4 Case 2:11-cv-03045-EFS Document 679 Filed 04/26/16
1 recruitment fees mortgaged by their property and often, the
2 property of their Thai relatives.
3 2. Global falsely promised Thai workers high wages and three years
4 of steady employment.
5 3. Global engaged in deception and deceit to obtain H-2A guest
6 worker visas for its contracts in the United States.
7 4. Prawnee Tubchumpol aka Som (“Prawnee”) was Global’s Director of
8 International Relations acting as the liaison among Global, the
9 Thai workers, and the Thai recruiting agents.
10 5. Upon arrival in the United States as part of the Global contract
11 to provide workers in Washington, Thai workers were required to
12 give their passports to the Global supervisors.
13 6. Global hired security guards to enforce its rules and monitor
14 the activities of the Thai workers in Washington during 2004
15 and 2005.
16 7. Global employed Sam Wongsesanit (“Sam”) and Sam Prinya as on-
17 site field supervisors for the Washington labor contract.
18 8. Global employed Charlie Blevins (“Charlie”) as its Operations
19 Manager at various farms in Washington.
20 9. Global supervisors Prawnee, Joseph, Monti, Chaiyot, and
21 Charlie, among others, regularly and consistently harassed and
22 intimidated the claimants with confiscation of passports,
23 imposition of curfews, prohibition of contact with outsiders,
24 threats of deportation to Thailand if they complained, violated
25 Global rules against communication with outsiders, violated
26 curfew, or tried to escape, and subjected the claimants to head
ORDER GRANTING EEOC’s MOTION FOR DEFAULT JUDGMENT - 5 Case 2:11-cv-03045-EFS Document 679 Filed 04/26/16
1 count to confirm that no claimant had left. Threats included
2 arrest and return to Thailand before completion of the contract
3 with devastating financial results because of the high
4 recruitment debt often secured by farms and property of the
5 claimants and their families.
6 10. On one occasion, Global supervisor Charlie yelled at them and
7 displayed a gun during a meeting with Thai workers after a visit
8 by an attorney causing fear among the Thai workers. On another
9 occasion, Mr. Thanakhum recalled that one of the Global
10 supervisors made a motion as if he was shooting the Thai workers
11 in the head.
12 11. Claimants were constantly pressured to work harder and faster
13 always with the threat of return to Thailand without completion
14 of the contract with all of the financial hardship that would
15 cause them and their families.
16 12. Claimants were told not to talk to inspectors or attorneys and
17 never to complain to either about working or living conditions
18 with the same threat of return to Thailand.
19 13. Those same Global supervisors used insulting terms such as
20 lizard and buffalo, both derogatory to Thais, and in particular,
21 insulted those Thai workers from Issa, an agricultural area of
22 northeastern Thailand as if they were lesser people.
23 14. One claimant, Mr. Nuansri, recalled that Chaiyot hit him with
24 a cane while berating him to work faster. When he grabbed the
25 cane causing Chaiyot to fall, he was retaliated against by
26 reassignment to more difficult work alone.
ORDER GRANTING EEOC’s MOTION FOR DEFAULT JUDGMENT - 6 Case 2:11-cv-03045-EFS Document 679 Filed 04/26/16
1 15. The Thai workers were given more difficult work and paid less
2 than Latino workers at the same work locations.
3 16. The claimants heard stories of fellow Thai workers who were
4 sent back to Thailand for consorting with a local Laotian. They
5 also saw that fellow workers who complained were then not given
6 work for a week. Such stories reinforced the threats of Global
7 supervisors to not communicate with outsiders.
8 17. The claimants were subjected to unsafe and overcrowded
9 transportation when it was made available. Frequently, they
10 were denied transportation to stores to buy food and to health
11 care facilities for medical attention to injuries and illnesses.
12 18. Global rented living facilities away from the orchards. These
13 facilities were substandard because they were too small for the
14 number of claimants assigned to them resulting in overcrowding;
15 these living quarters lacked adequate bathrooms and cooking
16 appliances, were unsanitary, and were bug infested, making them
17 virtually uninhabitable.
18 19. Frequently Global delayed payment of earned wages to the
19 claimants causing financial hardship to them and their families.
20 20. Global’s pattern and practice of hostile work environment,
21 harassment, and discrimination as described above caused each
22 of the claimants several or more of these reactions: financial
23 distress, fear, anxiety, anger, intimidation, humiliation,
24 shame, and a variety of physical issues including headaches,
25 depression, loss of weight, sleeplessness, ulcers, and stomach
26 aches and finally, an unrelenting sense of imprisonment.
ORDER GRANTING EEOC’s MOTION FOR DEFAULT JUDGMENT - 7 Case 2:11-cv-03045-EFS Document 679 Filed 04/26/16
1 21. Given the uniformity of the reprehensible treatment of the
2 claimants by Global, each claimant was proximately caused
3 emotional distress and compensatory damages in the amount of
4 Five Thousand Dollars ($5,000.00) per month for each month
5 worked for Global in Washington on the contract with the Grower
6 Defendant orchards. In several specific cases, a claimant
7 suffered greater compensatory damage for ulcers or other
8 specific damage in a slightly greater amount—$5,500.00 per
9 month. The Court has compiled a chart of the compensatory damage
10 awards it found Global’s conduct caused each claimant.
11 22. Sayan Chuaytua, Bunwan Chaidabot, Meechok Chanphut, Phongsak
12 Kununtha, Manit Lepol, Suwit Mikaeob, Chuangchot Muad Otton,
13 Phichet Phanthasri, Suthat Promnonsri, Narong Srinongkhot,
14 Bunthang Surivong, Radchawee Suwansing, Mongkhonsak Thanakhun,
15 and Phanuphong Wongworn all were detained by police for almost
16 an entire day. This is exactly what Global supervisors
17 constantly threatened them with. As a result, in addition to
18 the emotional distress Global’s other actions described above
19 caused them, they also suffered understandable fear and anxiety
20 as a result due to the possibility they would be sent home to
21 Thailand causing financial hardship for them and their families
22 and shame. This caused each of them an additional compensatory
23 damage in the amount Two Thousand Five Hundred dollars
24 ($2,500.00). This additional damage award to each of these
25 claimants is included in the chart of compensatory damage
26 awards.
ORDER GRANTING EEOC’s MOTION FOR DEFAULT JUDGMENT - 8 Case 2:11-cv-03045-EFS Document 679 Filed 04/26/16
1 23. Section 1981a(b)(1) provides in pertinent part, “A complaining
2 party may recover punitive damages under this section against
3 a respondent . . . if the complaining party demonstrates that
4 the respondent engaged in a discriminatory practice or
5 discriminatory practices with malice or with reckless
6 indifference to the federally protected rights of an aggrieved
7 individual.” 42 U.S.C. § 1981a(b)(1).
8 24. This punitive damages provision has been in existence since
9 1991. “Since that time, employers have been on notice regarding
10 the type of conduct that could subject them to liability, the
11 level of mental culpability or intentionality required and the
12 dollar amount to which they could be subjected, if they violated
13 the law.” Arizona v. Asarco, LLC, 773 F.3d 1050, 1057 (9th Cir.
14 2014).
15 25. Global’s conduct as found above was clearly and convincingly
16 both malicious and with reckless indifference to the federally
17 protected rights of each of the claimants herein. Additionally,
18 using the standards articulated in both Gore and State Farm,
19 the Court finds that Global’s conduct was with reckless
20 indifference to or with disregard of the health and safety of
21 the claimants who were targeted by Global because of their
22 ethnicity and financial vulnerability on a repeated basis over
23 months. Therefore, the claimants are entitled to an award of
24 punitive damages as allowed by 42 U.S.C. § 1981a(b)(1)&(3).
25 26. “The purposes of punitive damages are to punish a defendant and
26 to deter similar acts in the future. Punitive damages may not
ORDER GRANTING EEOC’s MOTION FOR DEFAULT JUDGMENT - 9 Case 2:11-cv-03045-EFS Document 679 Filed 04/26/16
1 be awarded to compensate a plaintiff. . . . You may award
2 punitive damages only if you find that the defendant’s conduct
3 that harmed the plaintiff was malicious, oppressive or in
4 reckless disregard of the plaintiff’s rights. Conduct is
5 malicious if it is accompanied by ill will, or spite, or if it
6 is for the purpose of injuring the plaintiff. Conduct is in
7 reckless disregard of the plaintiff’s rights if, under the
8 circumstances, it reflects complete indifference to the
9 plaintiff’s safety or rights, or if the defendant acts in the
10 face of a perceived risk that its actions will violate the
11 plaintiff’s rights under federal law. An act or omission is
12 oppressive if the defendant injures or damages or otherwise
13 violates the rights of the plaintiff with unnecessary harshness
14 or severity, such as by the misuse or abuse of authority or
15 power or by the taking advantage of some weakness or disability
16 or misfortune of the plaintiff.” Ninth Circuit Manual of Model
17 Civ. Jury Instr. No. 5.5 (2016).
18 27. The Court finds that Global’s treatment of each claimant as
19 found immediately hereinabove justifies an award of punitive
20 damages in the amount of Fifteen Thousand Dollars ($15,000.00)
21 to each claimant for each month worked for Global in Washington
22 on the contract with the Grower Defendant orchards. As to
23 Detnarong Nuansri, who was struck by a cane by Global
24 supervisor, the Court awards punitive damages in the amount of
25 Sixteen Thousand Dollars ($16,000.00) for each month worked.
26 Additionally, to each claimant arrested as identified in Finding
ORDER GRANTING EEOC’s MOTION FOR DEFAULT JUDGMENT - 10 Case 2:11-cv-03045-EFS Document 679 Filed 04/26/16
1 of Fact 22, the Court awards an additional Seven Thousand Five
2 Hundred Dollars ($7,500.00) in punitive damages.
3 28. The total award of damages both compensatory and punitive is:
4 Seven Million, Six Hundred Fifty-Eight Thousand, Five Hundred
5 Dollars (7,658,500.00). That amount is detailed below as
6 follows:
7 Claimant Summary Compensatory Punitive Total 8 Damages Damages Damages Amount Awarded awarded 9 awarded Wichai Worked $5,500/month $15,000/month 10 Charoen for Global 11 for twenty- 12 eight months of 13 which nine were 14 at the Grower 15 Defendant Orchards. 16 Total: $49,500.00 $135,000.00 $184,500.00
17 Natthakan Worked $5,000/month $15,000/month Chinnawan for 18 Global for 19 sixteen months of 20 which five were 21 at the Grower 22 Defendant orchards. 23 Total: $25,000.00 $75,000.00 $100,000.00
24 Sayan Worked $5,500/month $15,000/month Chuaytua for For physical $7,500 for 25 Global injuries one day of for and $2,500 police 26 sixteen for one day detention
ORDER GRANTING EEOC’s MOTION FOR DEFAULT JUDGMENT - 11 Case 2:11-cv-03045-EFS Document 679 Filed 04/26/16
1 months of of police which detention 2 five were at the 3 Grower Defendant 4 orchards. Total: $30,000.00 $82,500.00 $112,500.00 5 Jare Worked $5,000/month $15,000/month 6 Chuenjaichon for Global 7 for seven months 8 all at the 9 Grower Defendant 10 orchards. Total: $35,000.00 $105,000.00 $140,000.00 11 Chao Amattat Worked at $5,000/month $15,000/month 12 Global for five 13 months all at 14 the Grower 15 Defendant Orchards. 16 Total: $25,000.00 $75,000.00 $100,000.00
17 Bunwan Worked $5,000/month $15,000/month Chaidabot for Plus $2,500 Plus $7,500 18 Global for one-day for one-day for about of police of police 19 nineteen detention detention months of 20 which seven 21 were at the 22 Grower Defendant 23 Orchards. Total: $37,500.00 $112,500.00 $150,000.00 24
Chaiput Worked $5,000/month $15,000/month 25 Chaipayang for Global 26 for
ORDER GRANTING EEOC’s MOTION FOR DEFAULT JUDGMENT - 12 Case 2:11-cv-03045-EFS Document 679 Filed 04/26/16
1 twenty- seven 2 months of which 3 seven were at 4 the Grower 5 Defendant Orchards. 6 Total: $35,000.00 $105,000.00 $140,000.00
7 Chukiat Worked $5,000/month $15,000/month Chamnansarn for 8 Global for 9 thirteen months of 10 which seven 11 were at the 12 Grower Defendant 13 Orchards. Total: $35,000.00 $105,000.00 $140,000.00 14 Bunchuai Worked $5,000/month $15,000/month 15 Chanaphai for Global 16 for five months 17 all at the 18 Grower Defendant 19 Orchards. Total: $25,000.00 $75,000.00 $100,000.00 20 Cheotehai Worked $5,000/month $15,000/month 21 Chumphang for Global 22 for five months 23 all at the 24 Grower Defendant 25 orchards. Total: $25,000.00 $75,000.00 $100,000.00 26
ORDER GRANTING EEOC’s MOTION FOR DEFAULT JUDGMENT - 13 Case 2:11-cv-03045-EFS Document 679 Filed 04/26/16
1 Duangkaew Worked $5,000/month $15,000/month Khongehai for 2 Global for five 3 months all at 4 the Grower 5 Defendant orchards. 6 Total: $25,000.00 $75,000.00 $100,000.00
7 Chit Intip Worked $5,000/month $15,000/month for 8 Global for 9 twenty months, 10 of which six were 11 at the Grower 12 Defendant orchards. 13 Total: $30,000.00 $90,000.00 $120,000.00
14 Phiphop Worked $5,000/month $15,000/month Khamkaeo for 15 Global fourteen 16 months of which 17 eight were at 18 the Grower 19 Defendant orchards. 20 Total: $40,000.00 $120,000.00 $160,000.00
21 Banjoed Worked $5,000/month $15,000/month Khangwilai for 22 Global for 23 fourteen months of 24 which two were at 25 the Grower 26
ORDER GRANTING EEOC’s MOTION FOR DEFAULT JUDGMENT - 14 Case 2:11-cv-03045-EFS Document 679 Filed 04/26/16
1 Defendant orchards. 2 Total: $10,000.00 $30,000.00 $40,000.00
3 Marut Worked $5,000/month $15,000/month Kongpia for 4 Global for five 5 months all at 6 the Grower 7 Defendant orchards. 8 Total: $25,000.00 $75,000.00 $100,000.00
9 Narong Worked $5,000/month $15,000/month Krengchai for 10 Global for 11 twelve months of 12 which six were at 13 the Grower 14 Defendant orchards. 15 Total: $30,000.00 $90,000.00 $120,000.00
16 Phiroom Worked $5,000/month $15,000/month Krinsoognoen for 17 Global for 18 twenty- two 19 months of which 20 four were at the 21 Grower Defendant 22 orchards. Total: $20,000.00 $60,000.00 $80,000.00 23
Phongsak Worked $5,000/month $15,000/month 24 Kununtha for Plus $2,500 Plus $7,500 Global for one day for one day 25 for of police of police twenty- detention detention 26 seven
ORDER GRANTING EEOC’s MOTION FOR DEFAULT JUDGMENT - 15 Case 2:11-cv-03045-EFS Document 679 Filed 04/26/16
1 months of which 2 nine months 3 were at the 4 Grower Defendant 5 orchards. Total: $47,500.00 $142,500.00 $190,000.00 6 Chakkaphong Worked $5,000/month $15,000/month 7 Laebua for Global 8 for twenty- 9 two months of 10 which four were 11 at the Grower 12 Defendant orchards. 13 Total: $20,000.00 $60,000.00 $80,000.00
14 Arwuth Worked $5,000/month $15,000/month Lainok for 15 Global for 16 twenty- four 17 months of which 18 four were at the 19 Grower Defendant 20 orchards. Total: $20,000.00 $60,000.00 $80,000.00 21 Manit Lepol Worked $5,000/month $15,000/month 22 for Plus $2,500 Plus $7,500 Global for one-day for one-day 23 for of police of police nineteen detention detention 24 months of which 25 nine were at the 26 Grower
ORDER GRANTING EEOC’s MOTION FOR DEFAULT JUDGMENT - 16 Case 2:11-cv-03045-EFS Document 679 Filed 04/26/16
1 Defendant orchards. 2 Total: $47,500.00 $142,500.00 $190,000.00
3 Praphan Worked $5,000/month $15,000/month Lomajan for 4 Global for 5 twenty- two 6 months of which 7 eight were at 8 the Grower 9 Defendant orchards. 10 Total: $40,000.00 $120,000.00 $160,000.00
11 Pornchai Worked $5,500/month $15,000/month Mangsa for because of 12 Global physical for symptoms 13 twenty- seven 14 months of which 15 three were at 16 the Grower 17 Defendant orchards. 18 Total: $16,500.00 $45,000.00 $61,500.00
19 Phaibun Worked $5,000/month $15,000/month Manisaeng for 20 Global for 21 twenty- two 22 months of which two 23 were at the 24 Grower Defendant 25 orchards. Total: $10,000.00 $30,000.00 $40,000.00 26
ORDER GRANTING EEOC’s MOTION FOR DEFAULT JUDGMENT - 17 Case 2:11-cv-03045-EFS Document 679 Filed 04/26/16
1 Nookra Worked $5,000/month $15,000/month Matwiset for 2 Global for 3 fifteen months of 4 which five were 5 at the Grower 6 Defendant orchards. 7 Total: $25,000.00 $75,000.00 $100,000.00
8 Twaee Metha Worked $5,000/month $15,000/month for 9 Global for eight 10 months all at 11 the Grower 12 Defendant orchards. 13 Total: $40,000.00 $120,000.00 $160,000.00
14 Detnarong Worked $5,500/month $16,000/month Nuansri for Damages more Damages more 15 Global due to due to for four having been having been 16 months hit with hit with all at cane and cane and 17 the physical physical Grower problems problems 18 Defendant orchards. 19 Total: $22,000.00 $64,000.00 $86,000.00
20 Weeraphan Worked at $5,000/month $15,000/month Panyasen Global 21 for nine months 22 all at the 23 Grower Defendant 24 orchards. Total: $45,000.00 $135,000.00 $180,000.00 25
Phichet Worked $5,000/month $15,000/month 26 Phanthasri for
ORDER GRANTING EEOC’s MOTION FOR DEFAULT JUDGMENT - 18 Case 2:11-cv-03045-EFS Document 679 Filed 04/26/16
1 Global Plus $2,500 Plus $7,500 for for one day for one day 2 twenty- of police of police six detention detention 3 months of which ten 4 were at the 5 Grower Defendant 6 orchards. Total: $52,500.00 $157,500.00 $210,000.00 7 Bunhom Worked 8 Philuk for Global 9 for fifteen 10 months of which six 11 days were at the 12 Grower Defendant 13 orchard. Total: $1,000.00 $3,000.00 $4,000.00 14 Saiyan Worked $5,000/month $15,000/month 15 Photong for Global 16 for twenty- 17 three months of 18 which two were at 19 the Grower 20 Defendant orchards. 21 Total: $10,000.00 $30,000.00 $40,000.00
22 Saharat Worked $5,000/month $15,000/month Prasertang for 23 Global for 24 twenty- six 25 months of which 26 seven
ORDER GRANTING EEOC’s MOTION FOR DEFAULT JUDGMENT - 19 Case 2:11-cv-03045-EFS Document 679 Filed 04/26/16
1 were at the 2 Grower Defendant 3 orchards. Total: $35,000.00 $105,000.00 $140,000.00 4 Suthat Worked $5,000/month $15,000/month 5 Promnonsri for Plus $2,500 Plus $7,500 Global for one day for one day 6 for of police of police twenty- detention detention 7 five months of 8 which eight 9 were at the 10 Grower Defendant 11 orchards. Total: $42,500.00 $127,500.00 $170,000.00 12 Supap Worked $5,000/month $15,000/month 13 Promson for Global 14 for fifteen 15 months of which 16 nine were at the 17 Grower Defendant 18 orchards. Total: $45,000.00 $135,000.00 $180,000.00 19 Prachon Worked $5,000/month $15,000/month 20 Ratanarak for Global 21 for twenty- 22 six months of 23 which seven 24 were at the 25 Grower Defendant 26 orchards.
ORDER GRANTING EEOC’s MOTION FOR DEFAULT JUDGMENT - 20 Case 2:11-cv-03045-EFS Document 679 Filed 04/26/16
1 Total: $35,000.00 $105,000.00 $140,000.00
2 Saiam Worked $5,000/month $15,000/month Rodpham for 3 Global for 4 twenty- seven 5 months of which two 6 were at the 7 Grower Defendant 8 orchards. Total: $10,000.00 $30,000.00 $40,000.00 9 Aran Worked $5,000/month $15,000/month 10 Saengvan for Global 11 for fourteen 12 months of which 13 three were at 14 the Grower 15 Defendant orchards. 16 Total: $15,000.00 $45,000.00 $60,000.00
17 Bunthai Worked $5,000/month $15,000/month Sareewong for 18 Global for 19 twenty- nine 20 months of which 21 three were at 22 the Grower 23 Defendant orchard. 24 Total: $15,000.00 $45,000.00 $60,000.00
25 Thanit Worked $5,000/month $15,000/month Sriboran for 26 Global
ORDER GRANTING EEOC’s MOTION FOR DEFAULT JUDGMENT - 21 Case 2:11-cv-03045-EFS Document 679 Filed 04/26/16
1 for twenty- 2 seven months of 3 which seven 4 were at the 5 Grower Defendant 6 orchards. Total: $35,000.00 $105,000.00 $140,000.00 7 Narong Worked $5,000/month $15,000/month 8 Srinongkhot for Plus $2,500 Plus $7,500 Global for one day for one day 9 for of police of police twenty- detention detention 10 three months of 11 which nine were 12 at Grower Defendant 13 orchards. Total: $47,500.00 $142,500.00 $190,000.00 14 Jantha Worked $5,000/month $15,000/month 15 Sripakho for Global 16 for seven months 17 all at Grower 18 Defendant orchards. 19 Total: $35,000.00 $105,000.00 $140,000.00
20 Somphong Worked $5,000/month $15,000/month Suebphang for 21 twenty- two 22 months for 23 Global of which 24 three were at 25 Grower Defendant 26 orchards.
ORDER GRANTING EEOC’s MOTION FOR DEFAULT JUDGMENT - 22 Case 2:11-cv-03045-EFS Document 679 Filed 04/26/16
1 Total: $15,000.00 $45,000.00 $60,000.00
2 Bunthang Worked $5,000/month $15,000/month Surivong for Plus $2,500 Plus $7,500 3 Global for one day for one day for of police of police 4 twenty- detention detention nine 5 months of which 6 eight were at 7 Grower Defendant 8 orchards. Total: $42,500.00 $127,500.00 $170,000.00 9 Radchawee Worked $5,000/month $15,000/month 10 Suwansing for Plus $2,500 Plus $7,500 Global for one day for one day 11 for of police of police fifteen detention detention 12 months of which 13 eight were at 14 the Grower 15 Defendant orchards. 16 Total: $42,500.00 $127,500.00 $170,000.00
17 Anan Tawan Worked $5,000/month $15,000/month eight 18 months for 19 Global of which 20 three were at 21 Grower Defendant 22 orchards. Total: $15,000.00 $45,000.00 $60,000.00 23 Mongkhonsak Worked $5,000/month $15,000/month 24 Thanakhun for Plus $2,500 Plus $7,500 Global for one day for one day 25 for of police of police twenty- detention detention 26 six
ORDER GRANTING EEOC’s MOTION FOR DEFAULT JUDGMENT - 23 Case 2:11-cv-03045-EFS Document 679 Filed 04/26/16
1 months of which 2 eight were at 3 Grower Defendant 4 orchards. Total: $42,500.00 $127,500.00 $170,000.00 5 Natthachai Worked $5,000/month $15,000/month 6 Thatkaeo for Global 7 for twenty- 8 three months of 9 which three 10 were at Grower 11 Defendant orchards. 12 Total: $15,000.00 $45,000.00 $60,000.00
13 Praiwan Worked $5,000/month $15,000/month Thongbai for 14 Global for nine 15 months of which 16 five were at Grower 17 Defendant orchards 18 Total: $25,000.00 $75,000.00 $100,000.00
19 Thinnakorn Worked $5,000/month $15,000/month Thongkham for 20 Global for 21 twelve months of 22 which six were at 23 Grower Defendant 24 orchards. Total: $30,000.00 $90,000.00 $120,000.00 25
Anurat Worked $5,000/month $15,000/month 26 Truatnok for
ORDER GRANTING EEOC’s MOTION FOR DEFAULT JUDGMENT - 24 Case 2:11-cv-03045-EFS Document 679 Filed 04/26/16
1 Global for 2 twenty- six 3 months of which 4 eight were at 5 Grower Defendant 6 orchards. Total: $40,000.00 $120,000.00 $160,000.00 7 Somesak Worked $5,000/month $15,000/month 8 Wongkaeo for Global 9 for twenty- 10 two months of 11 which three 12 were at Grower 13 Defendant orchards. 14 Total: $15,000.00 $45,000.00 $60,000.00
15 Athip Worked $5,000/month $15,000/month Wongsanoa for 16 Global for 17 twelve months of 18 which three 19 were at Grower 20 Defendant orchards. 21 Total: $15,000.00 $45,000.00 $60,000.00
22 Phanuphong Worked $5,000/month $15,000/month Wongworn for Plus $2,500 Plus $7,500 23 Global for one day for one day for of police of police 24 twenty- detention detention six 25 months of which 26 eight at
ORDER GRANTING EEOC’s MOTION FOR DEFAULT JUDGMENT - 25 Case 2:11-cv-03045-EFS Document 679 Filed 04/26/16
1 Grower Defendant 2 orchards. Total: $42,500.00 $127,500.00 $170,000.00 3 Pradit Worked $5,000/month $15,000/month 4 Yimsangog for Global 5 for sixteen 6 months of which six 7 were at Grower 8 Defendant orchards 9 Total: $30,000.00 $90,000.00 $120,000.00
10 Chuangchot Worked $5,000/month $15,000/month Muad Otton for Plus $2,500 Plus $7,500 11 Global for one day for one day for of police of police 12 twenty- detention detention seven 13 months of which 14 seven were at 15 Grower Defendant 16 orchards. Total: $37,500.00 $112,500.00 $150,000.00 17 Suwit Worked $5,000/month $15,000/month 18 Mikaeob for Plus $2,500 Plus $7,500 Global for one day for one day 19 for of police of police twenty- detention detention 20 eight months of 21 which seven 22 were at Grower 23 Defendant orchards. 24 Total: $37,500.00 $112,500.00 $150,000.00
25 Apichat Worked $5,000/month $15,000/month Peayer for 26 Global
ORDER GRANTING EEOC’s MOTION FOR DEFAULT JUDGMENT - 26 Case 2:11-cv-03045-EFS Document 679 Filed 04/26/16
1 for sixteen 2 months of which 3 seven were at 4 Grower Defendant 5 orchards. Total: $35,000.00 $105,000.00 $140,000.00 6 Samian Worked $5,000/month $15,000/month 7 Hanchat for Global 8 for twenty- 9 two months of 10 which four were 11 at Grower Defendant 12 orchards. Total: $20,000.00 $60,000.00 $80,000.00 13 Sathaporn Worked $5,000/month $15,000/month 14 Kongkaew for Global 15 for nine months of 16 which three 17 were at Grower 18 Defendant orchards. 19 Total: $15,000.00 $45,000.00 $60,000.00
20 Suraphon Worked $5,000/month $15,000/month Suwanna for 21 Global for 22 twelve months of 23 which seven 24 were at the 25 Grower Defendant 26 orchards.
ORDER GRANTING EEOC’s MOTION FOR DEFAULT JUDGMENT - 27 Case 2:11-cv-03045-EFS Document 679 Filed 04/26/16
1 Total: $35,000.00 $105,000.00 $140,000.00
2 Meechok Worked $5,000/month $15,000/month Chanphut for Plus $2,500 Plus $7,500 3 Global for one day for one day for of police of police 4 twenty- detention detention eight 5 months of which 6 eight were at 7 Grower Defendant 8 orchards. Total: $42,500.00 $127,500.00 $170,000.00 9 Thanasack Worked $5,000/month $15,000/month 10 Nidkratok for Global 11 for twenty- 12 three months of 13 which two were at 14 Grower Defendant 15 orchards. Total: $10,000.00 $30,000.00 $40,000.00 16 Watcharepong Worked $5,000/month $15,000/month 17 Kaewkasee for Global 18 for twenty- 19 six months of 20 which five were 21 at Grower Defendant 22 orchards. Total: $25,000.00 $75,000.00 $100,000.00 23 Wichit Worked $5,000/month $15,000/month 24 Srimart for Global 25 for twenty- 26 two
ORDER GRANTING EEOC’s MOTION FOR DEFAULT JUDGMENT - 28 Case 2:11-cv-03045-EFS Document 679 Filed 04/26/16
1 months of which two 2 were at Grower 3 Defendant orchards. 4 Total: $10,000.00 $30,000.00 $40,000.00
5 Chairat Worked $5,000/month $15,000/month Srinakrung for 6 Global for 7 nineteen months of 8 which two were at 9 Grower Defendant 10 orchards. Total: $10,000.00 $30,000.00 $40,000.00 11 Anukorn Worked $5,000/month $15,000/month 12 Srijan for Global 13 for seven months 14 all at the 15 Grower Defendant 16 orchards. Total: $35,000.00 $105,000.00 $140,000.00 17 Laphit Worked $5,000/month $15,000/month 18 Khodthan for Global 19 for five months 20 all at Grower 21 Defendant orchards. 22 Total: $25,000.00 $75,000.00 $100,000.00 23 /// 24 // 25 / 26
ORDER GRANTING EEOC’s MOTION FOR DEFAULT JUDGMENT - 29 Case 2:11-cv-03045-EFS Document 679 Filed 04/26/16
1 Accordingly, IT IS HEREBY ORDERED:
2 1. The EEOC’s Motion for Default Judgment Against Defendant
3 Global Horizons, Inc. d/b/a Global Horizons Manpower, Inc.,
4 ECF No. 619, is GRANTED.
5 2. The Clerk’s Office is to enter default judgment in the EEOC’s
6 favor against Global Horizons for: Seven Million, Six Hundred
7 Fifty-Eight Thousand, Five Hundred Dollars (7,658,500.00).
8 3. All pending motions and hearings are STRICKEN.
9 4. This file shall be CLOSED.
10 IT IS SO ORDERED. The Clerk’s Office is directed to enter this
11 Order and provide copies to counsel.
12 DATED this 26th day of April 2016.
13
14 s/Edward F. Shea EDWARD F. SHEA 15 Senior United States District Judge
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Q:\EFS\Civil\2011\3045.findings of fact & damages.docx ORDER GRANTING EEOC’s MOTION FOR DEFAULT JUDGMENT - 30 Case 1:11-cv-00257-LEK-RLP Document 767 Filed 12/19/14 Page 1 of 77 PageID #: 23128
UNITED STATES DISTRICT COURT DISTRICT OF HAWAII
UNITED STATES EQUAL ) CIVIL ACTION NO. 11-00257 EMPLOYMENT OPPORTUNITY ) LEK-RLP COMMISSION, ) ) FINDINGS OF FACT AND Plaintiff, ) CONCLUSIONS OF LAW ) vs. ) The Honorable Leslie E. Kobayashi ) United States District Judge GLOBAL HORIZONS, INC., D/B/A ) GLOBAL HORIZONS ) MANPOWER, INC.; CAPTAIN ) COOK COFFEE COMPANY LTD.; ) DEL MONTE FRESH PRODUCE ) (HAWAII), INC.; KAUAI COFFEE ) COMPANY, INC.; KELENA ) FARMS, INC.,; MAC FARMS OF ) HAWAII, LLC N/K/A MF NUT CO., ) LLC; MAUI PINEAPPLE ) COMPANY, LTD. A/K/A MAUI ) PINEAPPLE FARMS; ) ALEXANDER & BALDWIN, INC.; ) MASSIMO ZANETTI BEVERAGE ) USA, INC.; AND DOES 1-15, ) INCLUSIVE, ) Defendants. ) ______)
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. PROCEDURAL HISTORY
On April 19, 2011, the EEOC filed its original complaint in this
action. Thereafter, Defendant Maui Pineapple Company, Ltd. (“Maui Pineapple”)
1 Case 1:11-cv-00257-LEK-RLP Document 767 Filed 12/19/14 Page 2 of 77 PageID #: 23129
as well as all other named farm defendants except Defendant Global Horizons, Inc.
(“Global Horizons” or “Global”) filed a series of motions to dismiss the EEOC’s
complaints.
The Court denied defendants’ motions to dismiss while granting in
part some of the named farm defendants’ motions to dismiss on certain limited
issues and the EEOC filed its Third Amended Complaint (“TAC”) on July 2, 2012.
(Dkt. No. 263.)
Thereafter, on August 1, 2012, Global Horizons filed its first motion
for extension of time to file responsive pleading to the TAC. (Dkt. No. 291.) On
September 10, 2012, Global Horizons filed its second and final motion for
extension of time to file responsive pleading to the TAC. (Dkt. No. 368.) On
September 11, 2012, the Court granted Global Horizons’ second and final motion
for extension of time to file responsive pleading to the TAC. (Dkt. No. 369.) On
September 18, 2012, Global Horizons filed its motion to dismiss the TAC. (Dkt.
No. 371.) On November 8, 2012, the Court issued an order granting in part and
denying in part Global Horizons’ motion to dismiss the TAC. (Dkt. No. 399.)
On February 28, 2014 the Court granted in part and denied in part the
EEOC’s motion for partial summary judgment on Global Horizons’ affirmative
defenses and denied Global Horizons’ motion for partial summary judgment on its
laches defense. (Dkt. No. 682.)
2 Case 1:11-cv-00257-LEK-RLP Document 767 Filed 12/19/14 Page 3 of 77 PageID #: 23130
On February 28, 2014, the Court also granted in part and denied in
part the EEOC’s motions for partial summary judgment regarding Maui
Pineapple’s affirmative defenses. (Dkt. No. 683.)
On March 19, 2014, the Court granted the EEOC’s motion for partial
summary judgment against Global Horizons. This Court held that Global Horizons
engaged in a pattern or practice of (1) hostile work environment, (2) disparate
treatment, and (3) retaliation against the Claimants. (Dkt. 685; EEOC v. Global
Horizons, Inc., 7 F. Supp. 3d 1053 (D. Haw. 2014)).
On June 30, 2014, the Court approved the stipulated default judgment
as to Maui Pineapple. (Dkt. No. 710.) On August 22, 2014, the Court approved
the stipulated default judgment as to Global Horizons. (Dkt. No. 717.)
By September 3, 2014, this Court entered a Consent Decree as to each
of the following other named defendants-Del Monte Fresh Produce, Inc.; Captain
Cook, Ltd.; Kelena Farms, Inc.; Mac Farms of Hawaii, LLC nka MF Nut Co.,
LLC; Kauai Coffee, LLC; Alexander & Baldwin, Inc., and Massimo Zanetti
Beverage USA, Inc. (Dkt. Nos. 651, 720-23.)
On September 5, 2014, the final pretrial conference, which was set for
September 29, 2014, was converted to a telephonic status conference. (Dkt.No.
724.) Neither Global Horizons nor Maui Pineapple appeared for this status
conference.
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On September 22, 2014, the EEOC filed a status report wherein it
notified the Court, among other things, that (1) a trial would not be necessary to
resolve this matter because of the consent decrees entered by the Court and/or the
entry of defaults as to the remaining named defendants, and (2) the EEOC was
finalizing a motion for default judgment as to Global Horizons and Maui Pineapple
for monetary and injunctive relief. (Dkt. No. 725.)
After the telephonic status conference, Magistrate Judge Richard L.
Puglisi issued a minute order wherein he confirmed that the EEOC informed the
Court that it wished to proceed by motion and Magistrate Judge Puglisi ordered
“the EEOC to file its motion regarding claims on damages and injunctive relief
within 30 days.” (Dkt. No. 732.)
In compliance with Magistrate Judge Richard L. Puglisi’s minute
order (Dkt. No. 732), the EEOC filed its motions for default judgment seeking
damages and injunctive relief against Global Horizons and Maui Pineapple on
October 16, 2014. (Dkt. Nos. 737-38.) This Court, however, denied the EEOC’s
motions for default judgment and ordered that the case would proceed to a jury
trial unless the EEOC waived its prior jury demand. (Dkt. No. 752.) The EEOC
immediately filed its notice of waiver of its prior jury demand and requested that
the Court award damages and injunctive relief based upon the supporting
4 Case 1:11-cv-00257-LEK-RLP Document 767 Filed 12/19/14 Page 5 of 77 PageID #: 23132
documents that the EEOC submitted with the motions for default judgment against
Global Horizons and Maui Pineapple. (Dkt. No. 753.)
On November 4, 2014, the EEOC filed its declarations, exhibits, and
deposition pursuant to this Court’s Order dated October 24, 2014 (Dkt. No. 754).
This Court ordered the EEOC to “file its proposed findings of fact and
conclusions of law by November 12, 2014,” and the EEOC complied. (Dkt. Nos.
754, 765.)
To date, the Third Amended Complaint remains the operative
complaint. Thus, the Court notes that “[w]ith respect to the determination of
liability and the default judgment itself, the general rule is that well-pled
allegations in the complaint regarding liability are deemed true.” Fair Housing of
Marin v. Combs, 285 F.3d 899, 906 (9th Cir. 2002).
II. FINDINGS OF FACT
A. This Court’s Prior Findings of Fact Regarding Racial Animus and the Pattern or Practice of Discriminatory Conduct, Hostile Environment, and Retaliation by Global Horizons’ Top Management Warrants Substantial Monetary Damages at the Statutory Cap for Each Claimant.
1. Global Horizons engaged in a pattern or practice of (1) hostile work
environment, (2) disparate treatment, and (3) retaliation against the Claimants.
(Dkt. 685; EEOC v. Global Horizons, Inc., 7 F. Supp. 3d 1053 (D. Haw. 2014)).
5 Case 1:11-cv-00257-LEK-RLP Document 767 Filed 12/19/14 Page 6 of 77 PageID #: 23133
2. Global Horizons’ managing officials Sam Wongsesanit (Global
Horizons’ field supervisor), Shane Germann (Global Horizons’ regional manager),
and Joseph Knoller (Global Horizons’ vice president) physically abused some of
the Claimants. Id. at 1060.
3. Wongsesanit and Germann “supervised Claimants” and “had
immediate authority to discharge, discipline, and control work schedule, wages,
and housing.” Id.
4. In 2004 at Defendant Maui Pineapple Company, Ltd. farm (“Maui
Pineapple”), after Wongsesanit accused Claimant Anucha Homphet of helping a
co-worker escape, he forced Homphet to meet with Knoller, and Knoller
immediately slapped Homphet’s head. Id.
5. Wongsesanit broke the sunglasses off Claimant Prakran Radchai’s
face when Radchai forgot to bring his protective eyewear to work. Id. at 1060.
6. In 2004 at Maui Pineapple, Wongsesanit grabbed one of the
Claimants by the shirt and threw him against a wall. Id.
7. Wongsesanit threatened Maui Pineapple Claimants with a gun and
routinely carried a baseball bat during meetings and at the Claimants’ housing
facility to enforce the curfew. Id.
8. Wongsesanit grabbed some of the Claimants by the throat during
meetings, punched some of the Claimants in the face, pushed a Claimant who
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inquired about the lack of work hours, and hit a Claimant with a stick to make him
work faster. Id.
9. Global Horizons also admitted that its supervisors routinely verbally
harassed Claimants. For example, Knoller told Claimants that anyone who ran
away would be shot, deported, or arrested. Wongsesanit threatened Claimants with
physical abuse and deportation. Wongsesanit, Pranee Tubchumpol (Global
Horizons’ director of international relations), and Germann routinely threatened
Claimants that they would be deported if they did not work faster or harder, if they
tried to escape, or if they complained about or questioned the working or living
conditions. Id. at 1060-61.
10. Global Horizons subjected the Claimants to physical and verbal
harassment in that: Knoller, Tubchumpol, Germann, and Wongsesanit physically
and verbally harassed the Claimants; Tubchumpol, Germann, and Wongsesanit had
immediate supervisory authority over the Claimants; the harassment was their
regular practice; the harassment was unwelcome; the Claimants perceived the work
environment as abusive; and a reasonable person would find the work environment
to be hostile or abusive. Id. at 1061.
11. Global Horizons has admitted that Claimants complained to Global
Horizons supervisors that they were treated worse than the non-Thai workers. Id.
at 1061-62.
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12. Global Horizons has also admitted that it “ratified its Thai recruiters
charging Claimants’ excessive recruitment fees by ignoring Claimants’ complaints
about the fees because the debt from the fees kept Claimants more compliant and
vulnerable to abuse.” Id. at 1062.
13. Global Horizons exploited the enormous debts the Claimants incurred
to pay the recruitment fees. For example, Wongsesanit constantly threatened
Claimants with deportation to Thailand or transfer to farms where they would earn
less money because he knew that the Thai workers “were hopelessly in debt”
because of the recruitment fees. Id.
14. Global Horizons specifically chose Thai workers based on a
stereotype that Thai workers would be more compliant and less likely to escape or
cause other problems. Id.
15. Global Horizons’ Chief Executive Officer Mordechai Orian has
admitted that he, “specifically sought Thai nationals to fulfill the farm labor
contracts believing that Thai workers would be easier to exploit than workers from
other national origins and/or races,” and Global Horizons “selectively recruited
impoverished, uneducated Thai workers who couldn’t speak English, and had no
family or contacts in the U.S. so they couldn’t escape or question Global.” Id.
16. Orian believed that, in general, “Thai people, they are good people,
nice people. And they just follow . . . .” Specifically, Orian believed that, as
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workers in the United States Department of Labor (“DOL”) H–2A guest worker
program, the Claimants would “just follow.” Id.
17. Orian previously hired workers from Mexico, China, and Nepal, but
he had problems with those workers because they often disappeared. Orian stated
that he believed that Claimants would not leave. Id.
18. Orian has stated: “That’s why we decide to go with Thailand, because
the ration-ratio at that time of people who be absconded [sic] was 3 percent, 2
percent compared to 80 percent, 90 percent, 100 percent from other countries . . . .”
Id.
19. Orian also stated, “you just go to countries. You know it’s going to be
easier and they’re going to stay on the job . . . That’s why Thailand.” Id.
20. Global Horizons subjected the Claimants to physical and verbal
harassment based on Claimants’ race and/or national origin in order to secure the
Claimants’ compliance and obedience and based upon stereotypical beliefs about
Thai workers. Id. at 1062-63.
21. The harassment that the Claimants suffered was sufficiently severe
and pervasive to alter the conditions of their employment. Id. at 1061.
22. Global Horizons’ supervisors engaged in a pattern or practice of
hostile work environment by subjecting the Claimants to physical violence,
threatening them with guns and bats, and verbally harassing them with threats of
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shooting them or threats of physical violence, threats of arrest, threats to transfer
them to farms with less or harsher work, threats of deportation if they did not work
faster or harder, if they tried to escape, or if they complained about or questioned
the working and/or living conditions. Id. at 1060-61.
23. Global Horizons treated the Claimants less favorably than other
workers because of the Claimants’ race and/or national origin. Further, the
disparate treatment of Thai workers was Global Horizons’ standard operating
procedure in furtherance of the racial animus expressed by Global Horizons’ CEO.
Id. at 1065.
24. During Claimants’ employment at Maui Pineapple, the Claimants
“were prohibited from leaving the housing and work premises without Global
[Horizons]’s permission, reading the Thai newspaper, and speaking to
strangers/outsiders. Global [Horizons] also subjected [them] to a curfew and daily
head count.” Id. at 1063 (some alterations in original).
25. Once Global Horizons brought Claimants to the United States, their
passports were immediately confiscated. Id. at 1064.
26. At Maui Pineapple, there was a high metal fence containing three
layers of wire surrounding the Claimants’ housing which made them a feel like
prisoners. Id.
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27. Claimants also felt like prisoners because Global Horizons had ten
security guards patrolling the area twenty-four hours a day. Tubchumpol and
Germann told the workers that the security guards were immigration officials who
would arrest any worker who tried to escape. Id.
28. Global Horizons has admitted that “Micronesian and Filipino workers
were not subjected to security measures, daily head counts/roll calls or held as a
captive workforce.” Id.
29. Global Horizons has also admitted that it routinely denied Claimants
breaks during the work day, but Micronesian and Filipino workers had two fifteen-
minute breaks per day. Id.
30. Global Horizons has also admitted that it imposed a work production
quota on the Claimants at the Mac Farms of Hawaii, LLC farm (“Mac Farms”), but
it did not impose work production goals on the Filipino workers. Id.
31. Global Horizons demanded that the Claimants work faster than the
non-Thai workers. Id.
32. Global Horizons assigned Claimants to less desirable and more
demeaning jobs at the various farms than the non-Thai workers, such as the
Filipino workers. Id.
33. Claimants were paid less than the non-Thai workers. Id. at 1065.
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34. Global Horizons failed to schedule the Claimants for the work hours it
promised them, and routinely delayed payment or failed to pay Claimants for work
they had already performed. Id. at 1064.
35. While the Micronesian workers were allowed to own a car, drink
alcohol, and listen to loud music during their free time, the Claimants were not
allowed to do so. Id.
36. Global Horizons required all Thai workers at Maui Pineapple to eat
only in the cafeteria and prohibited them from cooking their own food. Further,
although Global Horizons deducted weekly amounts from their paycheck for food,
they did not provide adequate food to the Thai workers, and there were often food
shortages for the Thai workers. The Thai workers’ meals often consisted only of
rice and a piece of pineapple or a hard-boiled egg. Id.
37. The Micronesian workers received an adequate amount of food and
better quality food. They were also allowed to cook their own food. Id.
38. The Micronesian workers also did not have to share their sleeping
quarters with as many other workers as the Thai workers did. Id.
39. Global Horizons has admitted that the Claimants at Maui Pineapple
complained that Global Horizons forced them to work harder than the non-Thai
workers. Id. at 1066.
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40. The EEOC also presented evidence that the Claimants at Maui
Pineapple also raised the issues of inadequate work hours, non-payment of wages,
unauthorized paycheck deductions, poor living conditions, and lack of sufficient
food. Id.
41. Global Horizons has admitted that its supervisors, Wongsesanit,
Tubchumpol, and Germann, ignored or belittled the complaints at Maui Pineapple.
Id.
42. Global Horizons also admitted that its supervisors responded to these
complaints by threatening Claimants with deportation, by challenging them to
fights, and by using physical force. Id. at 1067.
43. Global Horizons further admitted that, when the DOL investigated
Global Horizons at Maui Pineapple, Wongsesanit and Tubchumpol told Claimants
either to refuse to talk to the investigators or to lie about Claimants’ compensation
problems. Id.
44. Claimant Pengbunma was one of the workers who the investigators
spoke to. He stated that, when he started to tell the investigators about not being
assigned enough work and about the living conditions, Wongsesanit ordered the
investigators to leave and ordered Pengbunma and the other workers to stop talking
and return to the dormitory. Wongsesanit later threatened them with deportation if
they spoke with any government officials again. Id.
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45. As to the Claimants at the Del Monte Fresh Produce (Hawaii) farm
(“Del Monte”), Global Horizons admits that they complained to Global Horizons
supervisors about not being assigned enough work hours and about payment
delays. Id.
46. The Del Monte Claimants also raised those complaints, as well as
complaints about the exorbitant recruiting fees they paid, to the DOL. In response
to the internal complaints, the Global Horizons supervisors threatened to deport the
workers who complained or to transfer them to farms where they would work less
and be paid less. When Global Horizons learned about the complaints to the DOL
and that the Del Monte Claimants were cooperating in the DOL’s investigation,
Tubchumpol told them that they were not to talk to anyone from the federal agency
and that anyone who did so would be deported. Id.
47. As to the Claimants at Mac Farms, Global Horizons admits that they
complained to Global Horizons supervisors about payment issues, not having
enough water, uninhabitable living conditions, and having to pay for transportation
to the grocery store. Id.
48. In response, Global Horizons supervisors threatened the Mac Farms
Claimants with deportation and told them not to tell anyone about their problems.
Wongsesanit also refused to transport any of the Mac Farms Claimants to the
grocery store unless they paid him. Id.
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49. As to the Claimants at the Captain Cook Coffee Company, Ltd. farm
(“Captain Cook”), Global Horizons admits that they complained about payment
issues, being forced to work under difficult conditions, and being forced to work
when they were sick. After two Claimants at Captain Cook made such complaints,
Tubchumpol transferred them to other farms. Id.
50. As to the Claimants at the Kelena Farms, Inc. farm (“Kelena Farms”),
Global Horizons admits that they complained to both Global Horizons supervisors
and the farm itself about the recruitment fees and about not being paid for work
performed. Id.
51. Tubchumpol met with the Kelena Farms Claimants, but merely told
them to stop complaining. Id.
52. Global Horizons engaged in a pattern and practice of retaliating
against any and all Claimants who complained about or resisted discriminatory
treatment, and against any and all Claimants who participated in governmental
investigations of their complaints of discrimination. Id. at 1066-69.
53. Global Horizons’ supervisors confined Claimants with curfews,
bedtimes, and security guards; restricted their movements and contact with
outsiders; denied them food, housing, transportation, and medical care for work
related injuries. Id. at 1061.
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54. Global Horizons’ supervisors also subjected the Claimants to a pattern
or practice of discriminatory terms and conditions by confiscating their passports,
imposing security measures to hold them captive, prohibiting them from leaving
the housing and work premises without Global Horizons’ permission, prohibiting
them from speaking to strangers/outsiders, subjecting them to curfews and daily
head counts, while the non-Thai workers were not subjected to the same. Id. at
1064.
55. Global Horizons’ supervisors denied the Claimants breaks while
giving the non-Thai workers breaks during the work day, imposed production
quotas/goals on the Claimants but not to the non-Thai workers, demanded that the
Claimants work faster than the non-Thai workers, assigned the Claimants to less
desirable and more demeaning jobs than the non-Thai workers, paid the Claimants
less than the non-Thai workers, failed to schedule the Claimants for work hours it
promised them while scheduling the non-Thai workers for more work hours, and
routinely delayed payment or failed to pay the Claimants for work that they had
already performed while not depriving the non-Thai workers of their wages. Id.
56. Global Horizons’ supervisors engaged in a pattern or practice of
discriminatory treatment by allowing the non-Thai workers to own a car, drink
alcohol, and listen to loud music during their free time but not allowing the
Claimants to do the same; requiring all Claimants to eat only in the cafeteria and
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prohibiting them from cooking their own food; deducting weekly wages amounts
from their paycheck for food and not providing adequate food to the Claimants
while the non-Thai workers were allowed to cook their own food and the non-Thai
workers received an adequate amount of food and better quality of food. Id.
57. Global Horizons’ standard operating procedure was to treat Claimants
less favorably than non-Thai workers and to retaliate against Claimants who
complained about discrimination. Id. at 1065, 1069.
B. Maui Pineapple Controlled the Terms and Conditions of the Claimants’ Employment but Demonstrated Reckless Indifference to the Claimants’ Rights under Title VII.
58. Maui Pineapple and Global Horizons entered into two contracts by
which Maui Pineapple controlled the Claimants day to day existence while
working at Maui Pineapple. (Dkt. No. 263 at ¶434.) The first contract, dated June
2004, defined Maui Pineapple as the employer and strictly limited Global
Horizons’ role to that of a “Personnel Services” provider for all of Maui
Pineapple’s farm workers, including both their domestic workers and the
Claimants. (Id.; Ex104.)
59. As the “Personnel Services” provider, the first contract limited Global
Horizons’ duties to processing I-9, W-4, and other tax forms, and providing
workers’ compensation insurance. (Dkt. No. 263 at ¶436; Ex1#489; Ex104.)
17 Case 1:11-cv-00257-LEK-RLP Document 767 Filed 12/19/14 Page 18 of 77 PageID #: 23145
60. Maui Pineapple’s contract with Global Horizons allowed Maui
Pineapple to terminate the Claimants’ employment “at any time and for any
reason,” and made Maui Pineapple responsible for providing a safe working
environment in accordance with all applicable federal laws. (Dkt. No. 263 at ¶436;
Ex1#s 487-88, Ex104.)
61. After securing this initial contract with Maui Pineapple, Global
Horizons submitted an Application for Alien Employment Certification to the DOL
to provide temporary workers (i.e. the Claimants) to harvest pineapples for Maui
Pineapple through the H2-A visa program. (Dkt. No. 263 at ¶437; Ex1#s 490-91;
Ex115; Ex116.)
62. On October 21, 2004, DOL approved Global Horizons’ application to
supply 100 workers to Maui Pineapple from November 13, 2004 through
September 15, 2005. (Ex1#492; Ex117.)
63. Maui Pineapple and Global Horizons had the Claimants start working
at Maui Pineapple prior to November 13, 2004, without DOL’s approval. As
stated above, DOL granted certification for the Claimants to start work at Maui
Pineapple on November 13, 2004. (Ex117.)
64. Global Horizons and Maui Pineapple’s payroll confirms that the H-2A
(Thai) workers worked at Maui Pineapple prior to November 13, 2004, for the pay
periods ending: 10/16/04; 10/23/04; 10/30/04; 11/6/04; and 11/13/04. (Ex113.)
18 Case 1:11-cv-00257-LEK-RLP Document 767 Filed 12/19/14 Page 19 of 77 PageID #: 23146
65. On or about November 15, 2004, after DOL’s approval, Maui
Pineapple and Global Horizons entered into a subsequent contract that attempted to
redefine Global Horizons as the Claimants’ employer. (Ex105.)
66. Maui Pineapple continued to retain tight control over the terms and
conditions of the Claimants’ work environment. (Id.)
67. Maui Pineapple’s second contract with Global Horizons, with a fax
date of November 15, 2004, was not in existence when Global Horizons submitted
its application to DOL to provide workers to Maui Pineapple. Nor was it subjected
to review and consideration by DOL when DOL issued the certification for Global
Horizons to supply 100 workers to Maui Pineapple on October 21, 2004. (Ex1#s
482,486,492-94,627.)
68. Under both contracts, Global Horizons and Maui Pineapple jointly:
controlled the Claimants’ work, housing, transportation, and access to food;
supervised the Claimants; determined the pay rates or the methods of payment;
held the right, directly or indirectly, to hire, fire, or modify the employment
conditions of the workers; and participated in the preparation of payroll and the
payment of wages. (Ex1#s 487-90,492,494-95; Exs104-05.)
69. Both contracts also repeatedly defined Global Horizons’ fundamental
role as limited to preparing payroll paperwork, contrasted with Maui Pineapple’s
control over the worksite. (Exs104-05.)
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1. Maui Pineapple was recklessly indifferent to the Claimants’ Title VII rights despite its tight and total control over the Claimants’ work.
70. Maui Pineapple maintained on-the-job control over Claimants through
Global Horizons, and Global Horizons’ on-site crew leaders who spoke directly to
the Claimants. (Ex19,¶60; Ex46,¶49.)
71. Maui Pineapple set the Claimants’ schedule, hours, and assign them
their jobs were for that day. (Dkt. No. 263 at ¶442; Ex106: 27:8-28:23; Ex107:
39:16-40:4, 42:3-19; Ex108: 74:2-77:7.)
72. Maui Pineapple made Global Horizons’ supervisors report to Maui
Pineapple’s supervisors. (Ex106: 39:26 – 40:6.)
73. Maui Pineapple determined how many Claimants they needed. (Dkt.
No. 263 at ¶444; Ex108: 43:6-44:10.)
74. Maui Pineapple trained the Claimants on how to do the work in the
field. (Dkt. No. 263 at ¶¶447, 451; Ex106: 31:19-22; Ex107: 29:2-5, 30:4-16;
Ex108: 45:9-21.)
75. Maui Pineapple trained Global Horizons’ supervisors. (Dkt. No. 263
at ¶¶446, 450; Ex106: 31:19, 22; 45:6-16; Ex107: 30:4-8; Ex108: 43:3, 14, 16, 24,
45:9-14; 75:22-24; Ex112#s 90-91.)
76. Maui Pineapple kept a map in their office of where the Claimants
were working. (Dkt. No. 263 at ¶444; Ex 106: 46:10-49:12.)
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77. Maui Pineapple provided the equipment and tools (i.e. hoes, knives,
gloves, and chaps) to the Claimants. (Dkt. No. 263 at ¶¶443, 450; Ex106: 37:24-
38:11; Ex107: 76:14-19; Ex109: 146:22-25; Ex112#s 97-98, 123-24.)
78. Maui Pineapple gave daily orders on what fruit to pick and the
specific amount of land to be covered. (Ex110: 61:23-62:3; Ex106: 39:22-40:6.)
79. Maui Pineapple evaluated the Claimants’ work multiple times each
day. (Dkt. No. 263 at ¶447; Ex108: 46:4-25; 76:2-4.)
80. Maui Pineapple received daily reports about work completed by the
Claimants. (Ex106: 43:23-44:19.)
81. Maui Pineapple verified the Claimants’ payroll. (Dkt. No. 263 at
¶444; Ex106: 48:24; 49:9-16; 50:16.)
2. Maui Pineapple was recklessly indifferent to the Claimants’ Title VII rights despite its control over the Claimants’ housing and food.
82. Maui Pineapple controlled the Claimants’ housing and access to food.
(Dkt. No. 263 at ¶¶445, 448; Ex109: 93:10-18; Ex112#86.)
83. Maui Pineapple supplied the mattresses, bed-frames, sheets, kitchen
and kitchen equipment to the Claimants. (Dkt. No. 263 at ¶449; Ex112#s 108-
09,111-12.)
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84. Maui Pineapple provided the housing on Maui Pineapple’s land for
the Claimants. (Dkt. No. 263 at ¶452; Ex 9: 59:8-18; 60:6-18; Ex106: 33:7-19;
Ex108: 49:8-17; Ex109: 78:19-79:14; Ex112#s 53-54,132-33,188.)
3. Maui Pineapple sought a more docile workforce in the Thai Claimants compared to its Micronesian workers.
85. Maui Pineapple targeted the Claimants based on stereotypes they were
easier to exploit since Maui Pineapple’s Dormitory Manager Patty Corden
(“Corden”), (Ex9: 27:9-16,) confirmed that Maui Pineapple was looking for a
different workforce because Micronesian workers had problems with their
attendance and “sometimes they get out of hand, fighting . . . .” (Id. at 103:19-
104:23.) Thus, Maui Pineapple hired Thai workers instead because “[t]hey work
really hard. They don’t make trouble . . . , and they - their attendance, they come
to work. . . . I didn’t have problems I had sometimes with the Micronesians.” (Id.
at 132:20-133:3.)
4. Maui Pineapple was recklessly indifferent to the confinement, verbal abuse, threats, and restrictions on the Claimants.
86. Maui Pineapple was recklessly indifferent to Global Horizons’
physical assaults/ abuse on the Claimants, threats, verbal abuse, confinement, and
restrictions on the Claimants’ personal liberties, movements, and/or interactions
with outsiders since all of this occurred at their work site and Maui Pineapple
provided the housing on their land for the Claimants (Dkt. No. 263 at ¶452; Ex9: 22 Case 1:11-cv-00257-LEK-RLP Document 767 Filed 12/19/14 Page 23 of 77 PageID #: 23150
59:8-18; 60:6-18; Ex106: 33:7-19; Ex108: 49:8-17; Ex109: 78:19-79:14; Ex112#s
53-54,132-33,188.) At Maui Pineapple, Global Horizons’ supervisors (1) slapped
Claimants; (2) beat up Claimants; (3) grabbed a Claimant by his shirt and threw
him against a wall; (5) grabbed Claimants by the throat at meetings; and
(5) challenged Claimants to fight for innocuous acts such as asking questions
and/or asking about getting more work. (Ex1#s 134,566,568-74; Ex2#s
1086,1089-93,1146,1181; Ex15,¶38; Ex17,¶26; Ex18,¶¶26,27; Ex19,¶¶49-50;
Ex22,¶¶20-22; Ex26,¶37; Ex28,¶36; Ex31,¶10; Ex32,¶21; Ex40,¶¶5,17,18;
Ex43,¶¶13-14; Ex45,¶17; Ex47,¶13; Ex56,¶17; Ex61,¶¶31-32; Ex62,¶39.) Maui
Pineapple was recklessly indifferent to the fact that Global Horizons enhanced
measures to confine the Claimants at Maui Pineapple by (1) posting a security
detail around the housing; (2) surrounding the housing with yellow tape and bells;
and (3) using metal fencing with three layers of wire around the housing to prevent
escape. (Ex1#s 140,550-51,625,626,642; Ex2#s 1095-97; Ex15,¶34; Ex28,¶19;
Ex29,¶8; Ex34,¶34; Ex35,¶¶25,29; Ex38,¶8; Ex39,¶6 at p.5; Ex41,¶¶8,31;
Ex43,¶9; Ex44,¶8; Ex46,¶¶40,46; Ex59,¶¶37,46.) These
restrictions/curfews/headcounts were inapplicable to non-Thais. (Ex2#1159;
Ex26,¶28; Ex31,¶17; Ex34,¶10.)
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5. Maui Pineapple was recklessly indifferent to the Claimants’ Title VII rights in that it denied Claimants habitable accommodations and provided Non-Thai workers with better accommodations.
87. The Claimants were housed in dormitories provided by Maui
Pineapple on property owned by Maui Pineapple but Maui Pineapple was
recklessly indifferent to the possibility that it or Global Horizons was violating the
Claimants’ Title VII rights. (Dkt. No. 263 at ¶ 452; Ex1#s 495; Ex106: 33:7-19;
Ex108: 49:8-17; Ex109: 78:19-79:14; Ex9: 59:8-18; 60:6-18; Ex112#s 53-54,132-
33,188.)
88. The Claimants described Maui Pineapple’s housing as the worst
housing. (Ex1#s 285,518, 629; Ex2#s 969,986,1052-55,1082; Ex28,¶47;
Ex37,¶17.)
89. Non-Thai workers lived in better conditions at Maui Pineapple
because each facility was segregated allowing fewer Micronesians per room, while
at Maui Pineapple Claimants slept anywhere there was any space, ranging from 8-
100 Claimants in the barracks. (Dkt. No. 263 at ¶¶459-63; Ex1#s 519-20,523,525;
Ex2#s 1074-75; Ex15,¶30; Ex17,¶¶20,23; Ex18,¶¶43,44; Ex19,¶42; Ex20,¶¶13-14;
Ex21,¶¶29-31; Ex22,¶23; Ex23,¶9; Ex24,¶¶9-10; Ex25,¶25; Ex26,¶31; Ex28,¶22;
Ex29,¶10; Ex30,¶¶21-22; Ex31,¶¶11,15; Ex32,¶¶10,20; Ex33,¶35; Ex35,¶¶30-
32,34; Ex36,¶¶15,18; Ex37,¶¶15-16; Ex38,¶10; Ex39,¶9 at p.6; Ex40,¶13;
Ex41,¶28; Ex42,¶22; Ex43,¶¶11,47-48; Ex44,¶¶10-11; Ex46,¶32; Ex47,¶10; 24 Case 1:11-cv-00257-LEK-RLP Document 767 Filed 12/19/14 Page 25 of 77 PageID #: 23152
Ex48,¶¶10,11; Ex50,¶12; Ex52,¶¶19-20; Ex53,¶19; Ex55,¶12; Ex56,¶14;
Ex57,¶20; Ex58,¶16; Ex59,¶¶43-45; Ex 61,¶¶34-35.)
90. Maui Pineapple did not provide enough beds to the Claimants, leaving
some to sleep on the floor. (Dkt. No. 263 at ¶445; Ex1#s 512-13; Ex2#1155;
Ex18,¶43; Ex26,¶31; Ex28,¶22; Ex35,¶31; Ex40,¶13; Ex42,¶22; Ex46,¶32;
Ex47,¶10; Ex53,¶20; Ex59,¶¶43-44.)
91. Micronesian workers lived in better housing separate from the
Claimants that were less crowded than the Claimants’ housing at Maui Pineapple.
(Dkt. No. 263 at ¶462; Ex1#520; Ex2#s 1074-75; Ex17,¶23; Ex31,¶¶15,16;
Ex35,¶34; Ex36,¶18; Ex37,¶16; Ex42,¶29; Ex44,¶11; Ex53,¶26; Ex55,¶12;
Ex56,¶14; Ex59,¶45.)
92. There were three times as many Claimants as Micronesians, yet there
were the same number of bathroom facilities on both sides. (Ex9: 121:4-122:3.)
93. Claimants had to wait in long lines to use the few showers and toilets
on the Thai side of the building because they were forbidden from using the
Micronesians’ bathrooms at the Maui Pineapple housing. (Ex1#525; Ex29,¶10;
Ex34,¶¶13-14; Ex35,¶34; Ex36,¶¶16-17; Ex39,¶9 at p.6; Ex43,¶11; Ex46,¶37.)
The Claimants urinated/defecated outside in the bushes because the insufficient
toilets routinely malfunctioned at Maui Pineapple. (Ex2#s 1058-64; Ex19,¶43;
Ex33,¶35; Ex34,¶13; Ex48,¶¶10,11.)
25 Case 1:11-cv-00257-LEK-RLP Document 767 Filed 12/19/14 Page 26 of 77 PageID #: 23153
94. The Claimants’ housing at Maui Pineapple had no air conditioning
and no heat. (Ex9: 79:2-3; Ex109: 90:8-24.)
95. At the Maui Pineapple housing, which was infested with rats and
various bugs, Claimant Saran Nonanthi suffered a scorpion bite; and there were no
electric fans to dissipate the smell of Claimants in the cramped quarters which
lacked hot water for bathing in the open communal showers denied privacy.
(Ex1#s 515-18, 595; Ex2#s 1068-73; Ex16,¶9; Ex17,¶21; Ex19,¶43; Ex20,¶14;
Ex21,¶37; Ex23,¶9; Ex26,¶¶31-32; Ex28,¶22; Ex29,¶10; Ex31,¶11; Ex32,¶¶10,20;
Ex33,¶36; Ex34,¶¶13,34; Ex35,¶¶30-31; Ex36,¶16; Ex38,¶¶10,31; Ex39,¶9 at p.6;
Ex41,¶¶28-29,32-33; Ex42,¶22; Ex43,¶¶11,47-48; Ex44,¶¶10-11; Ex46,¶¶33,35-
36,47; Ex47,¶10; Ex48,¶¶10,11; Ex53,¶19; Ex59,¶¶43-44; Ex61,¶34.)
6. Maui Pineapple was recklessly indifferent to the Claimants rights in that they were entitled to food under the H-2A program, but Maui Pineapple never ensured sufficient quantities for the large number of Claimants living at its dormitories.
96. Maui Pineapple controlled the Claimants’ access to food by ordering
the food for the Claimants. (Dkt. No. 263 at ¶¶445, 448; Ex9: 72:14-73:23; Ex107:
80:11-81:3, 81:22-25; Ex109: 92:16-22.)
97. The Claimants were not provide enough food at Maui Pineapple in
that a typical meal was rice with a slice of pineapple, two hard boiled eggs, or a
few pieces of bacon/jerky. (Ex2#s 1138,1150; Ex16,¶10; Ex19,¶45; Ex22,¶24;
26 Case 1:11-cv-00257-LEK-RLP Document 767 Filed 12/19/14 Page 27 of 77 PageID #: 23154
Ex23,¶10; Ex28,¶24; Ex30,¶23; Ex33,¶38; Ex36,¶20; Ex46,¶34; Ex52,¶20;
Ex57,¶22.)
98. Claimants waited in long lines to eat and food ran out for those at the
end of the line at Maui Pineapple. (Ex1#s 590,592; Ex2#s 1139-41; Ex53,¶21.)
Claimants also lacked adequate food supplies at Maui Pineapple. (Ex1#s 88-89,
299, 341, 377, 383, 404, 457, 686; Ex2#s 768,993-95.) The Micronesians,
however, had more food and better food to cook with than the Claimants at Maui
Pineapple. (Ex1#521; Ex2#s 1147-49; Ex17,¶22; Ex 25,¶¶27,29; Ex31,¶16;
Ex34,¶33; Ex44,¶13; Ex60,¶22.)
99. Maui Pineapple and Global Horizons prohibited the Claimants from
cooking their own meals or eating any food outside the cafeteria at Maui Pineapple
and Global Horizons seized rice cookers, pots and pans, electric burners, spices,
utensils, and instant noodles Claimant bought for themselves while working at
other farms. (Ex1#s 506,523,596-99; Ex2#s 1107-19,1120-22,1133-35;
Ex17,¶¶54-55; Ex18,¶40; Ex19,¶45; Ex21,¶¶32,47; Ex22,¶¶24-25,37; Ex23,¶¶10-
12; Ex25,¶28; Ex28,¶¶23-24; Ex29,¶11; Ex30,¶23; Ex31,¶¶12,13,16; Ex32,¶¶11,
24; Ex33,¶38; Ex34,¶16; Ex35,¶35; Ex38,¶11; Ex39,¶10 at p.6; Ex40,¶14;
Ex41,¶10; Ex43,¶12; Ex44,¶¶12-13; Ex45,¶13; Ex46,¶34; Ex47,¶11; Ex48,¶12;
Ex50,¶16; Ex52,¶21; Ex53,¶21; Ex55,¶12; Ex57,¶22; Ex58,¶16; Ex59,¶48;
Ex60,¶22; Ex62,¶¶33-34,36; and Ex114.)
27 Case 1:11-cv-00257-LEK-RLP Document 767 Filed 12/19/14 Page 28 of 77 PageID #: 23155
100. Because Maui Pineapple provided the Claimants with food/meals and
prohibited them from eating meals outside of those provided, Maui Pineapple
controlled what/when/where they ate. (Ex1#s 593,596-98; Ex109: 93:10-16;
Ex114.)
7. Maui Pineapple was recklessly indifferent to Global Horizons’ pattern or practice of disparate treatment since it controlled the Claimants’ work site.
101. Non-Thai workers had better working conditions than the Claimants.
(Ex15,¶23; Ex52,¶33.) At Maui Pineapple, Global Horizons denied work breaks to
the Thai workers, while the Filipino and Micronesian workers got two, 15-minute
breaks/day. (Dkt. No. 263 at ¶467;Ex1#s 531-32,540; Ex16,¶17; Ex29,¶15;
Ex31,¶18.) Micronesian workers worked at a slower pace while Global Horizons
supervisor Wongsesanit reprimanded Claimants who worked at the same pace.
(Dkt. No. 263 at ¶467;Ex1#534; Ex30,¶25; Ex35,¶45; Ex36,¶11; Ex59,¶50.)
Whenever Maui Pineapple’s Filipino truck drivers felt Claimants were working too
slowly, they drove the trucks faster and thereby forced the Claimants to work faster
to keep up. (Ex28,¶26; Ex59,¶50.)
102. Claimants got less desirable and demeaning job assignments at Maui
Pineapple. While Claimants physically harvested pineapples, Filipino workers
performed easier jobs like driving, indoor packing, planting pineapple plants, and
cutting stems from fruits. (Ex1#537; Ex2#s 1152-54; Ex15,¶37; Ex19,¶61;
28 Case 1:11-cv-00257-LEK-RLP Document 767 Filed 12/19/14 Page 29 of 77 PageID #: 23156
Ex20,¶9; Ex28,¶¶25,28; Ex30,¶25; Ex31,¶19; Ex35,¶44; Ex44,¶14; Ex50,¶15;
Ex53,¶26; Ex55,¶14; Ex58,¶17; Ex59,¶50.)
103. Claimants worked in thornier pineapple fields while non-Thai workers
worked in the less thorny fields. (Dkt. No. 263 at ¶469; Ex1#s 536,538; Ex2#s
1160-62; Ex59,¶50.) Claimants harvested more pineapples than non-Thai workers
during the same time period. (Dkt. No. 263 at ¶470; Ex1#539.)
104. Filipino workers were paid $15.00 per hour while the Claimants were
paid $9.75 per hour at Maui Pineapple. (Dkt. No. 263 at ¶468; Ex18,¶35.)
105. Non-Thais at Maui Pineapple were scheduled more work hours than
the Claimants and were never subjected to non-payment of wages. (Ex1#s
262,333,359,582; Ex2#s 732,926,991; Ex23,¶13; Ex29,¶16; Ex31,¶20; Ex61,¶39.)
106. The Claimants were denied access to restrooms, drinking water, hand
washing facilities, and medical care at the worksite(s) while working at Maui
Pineapple. (Ex2#s 733-35,823-24,1050-51,1080,1082; Ex19 ,¶58; Ex59,¶51.)
107. Maui Pineapple and Global Horizons had four Claimants, including
Claimant Charat Khumphon, work as cooks at Maui Pineapple’s dormitories, and
did not pay them the market rate for that job which was determined by DOL at the
time, and failed to pay them overtime. (Ex25,¶¶22,30.) Corden was the manager
in charge of the housing and kitchen, and her knowledge of these cooks’ hours is
imputed to Maui Pineapple because she is a manager. (Ex66.) Maui Pineapple
29 Case 1:11-cv-00257-LEK-RLP Document 767 Filed 12/19/14 Page 30 of 77 PageID #: 23157
through Global Horizons represented to DOL that the Claimants would be
harvesting pineapples and not working as cooks. (Exs116-117.)
8. Maui Pineapple engaged in direct retaliation against the Claimant when it denied work to Claimants shortly after they complained about unpaid wages, lack of food, and lack of work.
108. Maui Pineapple engaged in direct retaliation against the Claimant
when it denied work to Claimants shortly after they complained about unpaid
wages, lack of food, and lack of work to DOL in May 2005 even though Maui
Pineapple had a need for H2-A workers which was demonstrated by their multiple
letters of intent to contract with Global Horizons for more H2-A workers. (Dkt.
No. 263 at ¶¶489-96; Ex26,¶39; Ex28,¶37; Ex42,¶32.)
109. Holly Ka’Akimaka, Director of Industrial Relations for Maui Land &
Pineapple Company, confirmed that DOL investigated Maui Pineapple in 2005.
(Dkt. No. 263 at ¶489; Ex109: 49:7-23, 84:25-87:14, 121:20-123:2.)
110. The Claimants participated in DOL’s investigation by complaining
about unpaid wages, lack of food, and lack of work. Maui Pineapple again refused
to conduct its own investigation after DOL appeared. (Dkt. No. 263 at ¶489;
Ex109: 124:23-25.)
111. On July 27, 2005, Maui Pineapple sent a letter of intent to further
contract with Global Horizons for up to 60 workers to work from September 16,
30 Case 1:11-cv-00257-LEK-RLP Document 767 Filed 12/19/14 Page 31 of 77 PageID #: 23158
2005 to January 1, 2006 or October 8, 2005 to August 8, 2006. (Ex115.1) Global
Horizons then filed an Application for Labor Certification and Agricultural Food
Processing Clearance Order on or about August 22, 2005, for sixty (60) H2-A
workers to provide pineapple harvesting services from October 8, 2005 through
August 8, 2006. (Dkt. No. 263 at ¶491; Ex118.)
112. Then, on or about August 26, 2005, Maui Pineapple sent another letter
revising the July 27, 2005 letter of intent by extending the contract period from
September 16, 2005 to August 8, 2006, and sent another letter of intent for up to 25
workers to work for the period October 8, 2005 to August 8, 2006. (Ex115.) Thus,
Global Horizons filed another Application for Labor Certification and Agricultural
Food Processing Clearance Order on or about August 26, 2005, for eighty-five (85)
H2-A workers to provide pineapple harvesting services from October 13, 2005
through August 8, 2006. (Ex119.)
113. On September 8, 2005, Maui Pineapple once again sent a letter of
intent to contract with Global Horizons for up to 85 workers to work for the period
November 15, 2005 to September 15, 2006. (Ex115.) But on or about
1 Exhibit 115 contains two versions of the July 27, 2005 letter - one with the dates September 16, 2005 to January 1, 2006, and another with those dates crossed out and replaced with handwritten dates, October 8, 2005 to August 8, 2005. Presumably the August 8, 2005 refers to August 8, 2006. 31 Case 1:11-cv-00257-LEK-RLP Document 767 Filed 12/19/14 Page 32 of 77 PageID #: 23159
September 12, 2005, Maui Pineapple requested that Global Horizons withdraw the
two applications for the additional H2-A workers. (Dkt. No. 263 at ¶492; Exs120-
21.)
114. Maui Pineapple engaged in adverse employment actions by denying
the Claimants work after mid-August 2005 despite receiving DOL’s approval for
the Claimants to work there through September 15, 2005, and despite having
multiple letters of intent for Global Horizons to provide additional Thai workers to
work from September/November 2005 to August/September 2006. (Dkt. No. 263
at ¶¶494-96; Ex26,¶39; Ex28,¶37; Ex42,¶32; Ex109: 117:24-121:11; Ex112#s 3-4,
147, 343, 346, 349, 352, 355, 358-59, 361, 364, 367, 370-71, 373, 376, 382, 385,
388, 391, 394, 400-01, 403, 406, 409, 412, 415, 418, 421, 424, 427, 430-31, 433,
439, 442-43, 445-46, 448, 451, 454, 457, 460, 463, 466, 469, 472, 475, 478, 481,
484-85; Ex115, Maui Pineapple’s “Letters of Intent” to contract with Global
Horizons dated 7/27/05 and 8/26/05.)
9. Maui Pineapple was recklessly indifferent to the Claimants rights by failing to protect them from Global Horizons’ Pattern or Practice of Discrimination.
115. Maui Pineapple was recklessly indifferent to the Claimants’ rights
since it had equal opportunity policies in place but it failed to apply such policies
to protect the Claimants from Global Horizons’ pattern or practice of
discrimination. (Ex9: 38:23-39:15; Ex108: 58:4-16; Ex109: 55:22-56:7; Ex110:
32 Case 1:11-cv-00257-LEK-RLP Document 767 Filed 12/19/14 Page 33 of 77 PageID #: 23160
71:5-22; Ex111: 47:6-49:13.) Maui Pineapple also provided training to its
supervisors regarding EEO policies. (Ex9: 44:9-45:2; Ex106: 59:1-24, 62:1-16;
Ex108: 59:13-17; Ex109: 62:20-64:19; Ex110: 73:19-74:25, 75:15-23.) Despite
having EEO policies and trainings, and knowing Claimants were running away
from its facility, Maui Pineapple’s supervisors (Balala, Corden, Serrato, Kai) did
not take any investigative, preventative, or corrective measures to stop the hostile
work environment and other discriminatory treatment that made Claimants run
away. (Dkt. No. 263 at ¶455; Ex9: 98:24-99:5, 100:9-101:1; Ex106: 41:6-21;
Ex108: 74:2-77:7; Ex109: 100:23-102:5; Ex112#s 153,157-62,166-67.)
116. Maui Pineapple was also recklessly indifferent to the Claimants’
rights in that it knew the Claimants were transported in overcrowded and/or unsafe
buses/vans. (Ex106: 35:16-23; Ex107: 42:12-19; Ex109: 95:6-14.) Maui
Pineapple also knew that DOL found violations in May or June 2005, including
Global Horizons’ failure to maintain proper auto insurance for the van used to the
transport the Claimants. (Dkt. No. 263 at ¶453; Ex112#s 142-44.)
117. Maui Pineapple’s drivers saw that Claimants fainting in the fields
because it happened in front of them. (Ex19,¶58.)
33 Case 1:11-cv-00257-LEK-RLP Document 767 Filed 12/19/14 Page 34 of 77 PageID #: 23161
C. All Claimants Suffered Pain and Suffering from Global Horizons’ and/or Maui Pineapple’s Pattern or Practice of Perpetuating a Hostile Work Environment, Disparate Treatment, and Retaliation.
118. Based on the overall allegations of the Third Amended Complaint and
the EEOC’s exhibits filed on November 4, 2014, pursuant to this Court’s Order
(Dkt. No.754), the Court finds as true the fact that all Claimants suffered similar
pain and suffering with respect to their employment in Hawaii with Global
Horizons and/or Maui Pineapple.
119. The following 82 Claimants were brought to work in Hawaii by
Global Horizons and the EEOC submitted trial exhibits including these Claimants’
declarations and testimony from other witnesses to support their claim for damages
(Dkt. Nos. 755-64):
1. Amnat Phonai 2. Amnuay Phiansing 3. Amphon Kanthawang 4. Aniwat Khadphab 5. Anucha Homphet 6. Aphiwat Phaisantham 7. Apichart Peayer 8. Aran Saengvan 9. Arun Nakhwan 10. Arwuth Lainok 11. Athip Wongsanao 12. Boonlue Khadkantha 13. Boonthiam Wonghamlve 14. Bunhom Philuk 15. Bunthai Sareewong 16. Bunthiang Surivong 17. Bunyarit Pengbunma 18. Chaiwijit Munwaree 34 Case 1:11-cv-00257-LEK-RLP Document 767 Filed 12/19/14 Page 35 of 77 PageID #: 23162
19. Chakkrapong Khongkhao 20. Charat Khumphon 21. Chit Intip 22. Chukiat Chamnansarn 23. Dechachok Pamueangmun 24. Duang Kakaew 25. Itthi Oa-Sot 26. Jakarin Phookhiew 27. Kasem Puangkham 28. Khamjuan Namwichai 29. Khomkrit Aksorn 30. Kittipong Phetpanya 31. Krittanai Intakaeo 32. Liam Kajai 33. Monghonsak Thanakhun 34. Narong Duangdet 35. Natthankan Chinnawan 36. Natthawat Yahuafai 37. Nikon Nasaeng 38. Nirun Ruanjai 39. Nookrai Matwiset 40. Nophadon Seechachet 41. Nopphon Fuchompa 42. Patiphan Homon 43. Phichet Phanthasri 44. Phiphop Khamkaeo 45. Phirom Krinsoongoen 46. Phuchit Laoelit 47. Prachon Ratanarak 48. Pradit Yimsangob 49. Praiwan Thongbai 50. Prajuab Champar 51. Prakran Radchai 52. Praphan Lomajan 53. Prasoet Nomrawi 54. Prawit Kaepon 55. Ratthapon Yapunya 56. Saharat Prasertsang 57. Saiam Rodphan 58. Saiphan Mornkaew 35 Case 1:11-cv-00257-LEK-RLP Document 767 Filed 12/19/14 Page 36 of 77 PageID #: 23163
59. Sakda Phaisanwatthanakan 60. Samrit Korpimai 61. Sane Tanangoy 62. Sarakham Lunlan 63. Saran Nonanthi 64. Sathit Viboonkul 65. Soem Sitthiwang 66. Sombat Paengmuang 67. Somboon Meesri 68. Somjai Phobai 69. Somkhid Ud-Kon 70. Somkhit Nasee 71. Somphong Suebphang 72. Sompong Seesuk 73. Somsak Wongkaeo 74. Sopha Khaosa 75. Sriwan Phujai 76. Suthat Promnonsri 77. Sutthichai Makhai 78. Thanawat Chak Ano 79. Thawat Maitham 80. Thinnakorn Thongkham 81. Uthen Wongjinda 82. Weeraphan Panyasen
120. The following 54 Claimants Global Horizons brought to Hawaii and
worked at Maui Pineapple and the EEOC submitted trial exhibits including these
Claimants’ declarations and testimony other witnesses to support their claim for
damages (Dkt. Nos. 755-64):
1. Amnat Phonai 2. Amnuay Phiansing 3. Amphon Kanthawang 4. Aniwat Khadphab 5. Anucha Homphet 6. Aphiwat Phaisantham 7. Apichart Peayer 36 Case 1:11-cv-00257-LEK-RLP Document 767 Filed 12/19/14 Page 37 of 77 PageID #: 23164
8. Arun Nakhwan 9. Boonlue Khadkantha 10. Boonthiam Wonghamlve 11. Bunyarit Pengbunma 12. Chakkrapong Khongkhao 13. Charat Khumphon 14. Dechachok Pamueangmun 15. Duang Kakaew 16. Itthi Oa-Sot 17. Jakarin Phookhiew 18. Khamjuan Namwichai 19. Khomkrit Aksorn 20. Kittipong Phetpanya 21. Krittanai Intakaeo 22. Liam Kajai 23. Narong Duangdet 24. Natthawat Yahuafai 25. Nikon Nasaeng 26. Nirun Ruanjai 27. Nophadon Seechachet 28. Nopphon Fuchompa 29. Phuchit Laoelit 30. Prajuab Champar 31. Prakran Radchai 32. Prasoet Nomrawi 33. Prawit Kaepon 34. Ratthapon Yapunya 35. Saiphan Mornkaew 36. Sakda Phaisanwatthanakan 37. Samrit Korpimai 38. Sane Tanangoy 39. Sarakham Lunlan 40. Saran Nonanthi 41. Sathit Viboonkul 42. Soem Sitthiwang 43. Sombat Paengmuang 44. Somboon Meesri 45. Somjai Phobai 46. Somkhid Ud-Kon 47. Somkhit Nasee 37 Case 1:11-cv-00257-LEK-RLP Document 767 Filed 12/19/14 Page 38 of 77 PageID #: 23165
48. Sompong Seesuk 49. Sopha Khaosa 50. Sriwan Phujai 51. Sutthichai Makhai 52. Thanawat Chak Ano 53. Thawat Maitham 54. Uthen Wongjinda
1. Claimants Suffered Emotionally and Physically.
121. The Claimants experienced nightmares, headaches, depression,
anxiety, humiliation, and/or low self-esteem resulting from Global Horizons’
and/or Maui Pineapple’s pattern or practice of discrimination. (Ex16,¶22;
Ex17,¶58; Ex19,¶77; Ex20,¶25; Ex32,¶ 35; Ex33,¶66; Ex34,¶¶45,48;
Ex36,¶¶33,36; Ex38,¶38; Ex39,¶29 at p.10, ¶31 at p.11; Ex41,¶48; Ex42,¶26;
Ex43,¶¶51-52; Ex51,¶27; Ex127,¶53; Ex156,¶38; Ex180,¶¶35,90.)
122. Claimants felt helpless, lost sleep, and/or weight because all they
could think of was the threats, horrible living/working conditions, lack of work,
and/or their debts while working for Global Horizons and/or Maui Pineapple.
(Ex15,¶¶19,27, 39; Ex16,¶22; Ex17,¶58; Ex18,¶¶48-49; Ex25,¶30; Ex26,¶50;
Ex28,¶¶40,47-48; Ex32,¶¶26,33; Ex33,¶¶28-29,66; Ex34,¶49; Ex35,¶¶41,57-58;
Ex37,¶23, 29; Ex38,¶¶38,40,43; Ex39,¶32 at p.11; Ex41,¶49; Ex43,¶52; Ex45,¶32;
Ex46,¶ ¶32,58; Ex49,¶ ¶34,78; Ex51,¶27; Ex54,¶23; Ex55,¶16; Ex57,¶33;
Ex59,¶60; Ex61,¶54; Ex62,¶29; Ex122,¶28; Ex127,¶44; Ex128,¶92; Ex156,¶38;
Ex180,¶¶35,91.)
38 Case 1:11-cv-00257-LEK-RLP Document 767 Filed 12/19/14 Page 39 of 77 PageID #: 23166
123. Some Claimants became quieter, sad, less outgoing, less social,
withdrawn or suffered from low self-esteem while working for Global Horizons
and/or Maui Pineapple. (Ex34,¶50; Ex38,¶44; Ex43,¶52; Ex156,¶38; Ex180,¶36.)
124. Global Horizons’ and/or Maui Pineapple’s pattern or practice of
discrimination caused Claimants to stop trusting people. (Ex25,¶32; Ex28,¶58;
Ex35,¶62; Ex53,¶34; Ex59,¶61; Ex180,¶64.) “Working for Global changed my
[Krittanai Intakaeo’s] view of the world. They took advantage of me and did not
keep promises. The living conditions were horrendous. It affected my mental
health.” (Ex33,¶64.)
125. Many Claimants suffered cramps, back/shoulder pain, pain on their
hands or wrists, body aches, and/or fainted in the fields due to the grueling work at
Maui Pineapple. (Ex1#s 529-30; Ex16,¶¶16,23; Ex17,¶53; Ex19,¶¶58-59;
Ex21,¶39; Ex22,¶38; Ex26,¶45; Ex28,¶¶27, 48-48; Ex32,¶35; Ex35,¶46;
Ex36,¶10; Ex46,¶52; Ex47,¶15; Ex53,¶¶24-25; Ex54,¶45; Ex59,¶51; Ex60,¶21;
Ex61,¶¶40-41.)
126. Some Claimants developed high blood pressure and/or stomach
problems for not having enough food, the lack of kitchen facilities, and/or the
stress while working for Global Horizons and/or Maui Pineapple. (Ex34,¶51;
Ex38,¶45; Ex42,¶24; Ex59,¶60.)
39 Case 1:11-cv-00257-LEK-RLP Document 767 Filed 12/19/14 Page 40 of 77 PageID #: 23167
127. Claimants and their families worried, stressed, and felt desperate
and/or anxious because Global Horizons and/or Maui Pineapple did not provide
enough work for the Claimants or Global Horizons paid the Claimants late and
they did not know whether they would be able to pay off their debt for the
recruitment fees or lose their families’ land they had used for collateral.
(Ex15,¶¶19,39; Ex16,¶19; Ex17,¶25; Ex18,¶47; Ex19,¶71; Ex21,¶55; Ex22,¶28;
Ex25,¶¶16,24,30,32 at pp.8-9; Ex26,¶¶11,43,50; Ex27,¶10; Ex28,¶40, 49;
Ex30,¶¶16,18-19; Ex32,¶¶25-26,33; Ex33,¶¶28-29; Ex34,¶45; Ex36,¶31;
Ex37,¶23; Ex38,¶ ¶40,43; Ex39,¶29 at p.10,¶32, p.11; Ex41,¶47; Ex42,¶28;
Ex43,¶50; Ex45,¶ ¶32, 35; Ex49,¶78; Ex51,¶21,23, 27; Ex52,¶21,23; Ex52,¶¶27,
34; Ex53,¶31; Ex54,¶¶18, 22; Ex55,¶16; Ex56,¶¶23,29; Ex57,¶32; Ex58,¶19;
Ex61,¶17,47; Ex62,¶¶24-25; Ex122,¶28; Ex127,¶¶36,144; Ex128,¶¶26,59-60, 76;
Ex129,¶21; Ex134,¶¶40-41; Ex135,¶21; Ex138,¶32; Ex140,¶¶32,34; Ex144,¶23;
Ex146,¶31; Ex150,¶31; Ex151,¶34; Ex152,¶21; Ex153,¶27; Ex155,¶29;
Ex159,¶33; Ex160,¶28; Ex161,¶34; Ex162,¶¶59,83,87; Ex163,¶28; Ex169,¶32;
Ex177,¶30; Ex178,¶39; Ex179,¶70; Ex180,¶¶26, 35, 65.)
128. Claimants lived in constant stress, fear, anxiety, pressure,
intimidation, insecurity, and were afraid throughout their employment Global
Horizons because of Global Horizons supervisors’ threats of deportation, arrest,
physical abuse, transfers, curfews, restrictions, and confinement. (Ex15,¶¶19, 39;
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Ex16,¶¶8,14-15; Ex17,¶¶25-26,28; Ex19,¶55; Ex22,¶¶14,19-21,26,39; Ex26,¶¶34,
36-37; Ex28,¶¶35-36, 51; Ex30,¶¶27-28; Ex31,¶23; Ex32,¶¶21,25; Ex33,¶60;
Ex35,¶¶27-28,37,59-60; Ex37,¶¶18,22; Ex39,¶25 at p.9; Ex40,¶¶18-20;
Ex42,¶¶9,10,23; Ex46,¶¶38,44; Ex47,¶¶13,21-23; Ex49,¶27; Ex50,¶11; Ex52,¶25;
Ex54,¶47; Ex57,¶32; Ex59,¶¶29,37,39,41; Ex127,¶51; Ex128,¶¶71-73;
Ex134,¶¶16,24; Ex146,¶16; Ex156,¶¶18,29; Ex162,¶¶31-33,47,71; Ex179,¶¶44-
45.) Natthawat Yahuafai described “It was bad enough to be lied and deceived to
by Global, but what made things worse was the constant threats by Global’s
supervisors.” (Ex35,¶27.) Claimant Amphon Kanthawang “felt I had no choice
but to put up with all of Global’s abuses, including all the threats that were made,
because I had to so much debt for the recruitment fee . . . .” (Ex17,¶51.)
129. Claimants were also afraid and intimidated because Global Horizons
supervisor Sam would walk around the Maui Pineapple worksite with a gun and
challenged the Claimants to fight. (Ex16,¶13; Ex18,¶¶25,26; Ex22,¶20;
Ex61,¶¶29,31; Ex122,¶19.) Kittipong Phetpanya worried about his safety because
“[S]am, the Global supervisor, came to our building with a big stick and
challenged us to fight him . . . .” (Ex32,¶21.)
130. Claimants felt offended, anger, stress, pressure, and were upset when
they were verbally abused and belittled by Global Horizons supervisors.
(Ex16,¶14; Ex17,¶56; Ex21,¶42; Ex24,¶18; Ex25,¶¶31, 33; Ex26,¶30; Ex29,¶12;
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Ex37,¶13; Ex45,¶17; Ex49,¶¶26-28; Ex58,¶18; Ex60,¶23; Ex61,¶30; Ex62,¶12;
Ex162,¶34; Ex180,¶47.)
131. Claimants were uncomfortable, discouraged, depressed, disappointed,
angry, sad, frustrated and/or stressed but they felt forced to live in the horrible
living conditions while working for Global Horizons and/or Maui Pineapple.
(Ex16,¶9; Ex17,¶13; Ex19,¶44; Ex28,¶¶12, 22; Ex33,¶¶17,19; Ex38,¶29;
Ex41,¶26; Ex42,¶22; Ex46,¶47; Ex53,¶20; Ex59,¶43; Ex61,¶35; Ex128,¶¶67-
68,80; Ex156,¶19; Ex162,¶44; Ex180,¶76.) Claimants felt uncomfortable living in
the overcrowded conditions with no privacy at Maui Pineapple. (Ex22,¶23;
Ex25,¶32 at pg. 9; Ex26,¶32; Ex35,¶¶31,33.) Claimants were embarrassed and felt
they had no choice but to shower in front of other Thai workers at one time at Maui
Pineapple. (Ex21,¶37; Ex46,¶36.)
132. Claimants suffered from food shortages, which left them feeling
hungry, bad, and it made it more difficult for them to work while working for
Global Horizons and/or Maui Pineapple. (Ex23,¶10; Ex25,¶28; Ex29,¶11;
Ex33,¶58; Ex35,¶35; Ex43,¶49; Ex44,¶12; Ex47,¶11; Ex48,¶12; Ex49,¶34;
Ex50,¶16; Ex53,¶21; Ex135,¶14; Ex138,¶18; Ex140,¶15; Ex144,¶16; Ex146,¶¶20-
21; Ex150,¶22; Ex151,¶15; Ex152,¶15; Ex155,¶18; Ex159,¶20; Ex160,¶¶15-16;
Ex161,¶¶18, 20; Ex162,¶36; Ex169,¶18; Ex177,¶¶16, 19; Ex178,¶24.) Without
sufficient food, Claimants lost weight and felt lightheaded. (Ex28,¶24; Ex30,¶23;
42 Case 1:11-cv-00257-LEK-RLP Document 767 Filed 12/19/14 Page 43 of 77 PageID #: 23170
Ex32,¶24; Ex33,¶¶59,65; Ex49,¶34.) Claimants hunted for food or ate the farms’
left over produce because of the constant food shortages. (Ex28,¶23; Ex161,¶21;
Ex162,¶37.) Some Claimants tried to eat as little as possible because they did not
know if they would have more food while working for Global Horizons.
(Ex26,¶11.)
133. Claimants felt unsafe, afraid, and worried while being transported by
Global Horizons on the overcrowded buses since there were not enough seats for
everyone, and the Thai workers who arrived late would have to stand and/or sit on
each other’s laps, the floor, and/or buckets. (Ex21,¶38; Ex26,¶44; Ex30,¶¶13, 24;
Ex33,¶44; Ex42,¶25; Ex46,¶48; Ex53,¶30; Ex55,¶¶13,20; Ex57,¶23; Ex58,¶11;
Ex59,¶¶21-22,33,49; Ex60,¶30; Ex61,¶¶19,33; Ex122,¶27; Ex160,¶17; Ex161,¶22;
Ex162,¶48; Ex169,¶19.)
134. Claimants felt that Global Horizons’ and/or Maui Pineapple’s
preferential treatment to non-Thai workers was unfair, and they became angry.
(Ex16,¶¶17,18; Ex17,¶23; Ex19,¶61; Ex22,¶¶23, 24, 25; Ex26,¶28; Ex28,¶29;
Ex30,¶24; Ex35,¶34,44; Ex42,¶29; Ex53,¶26; Ex58,¶9; Ex61,¶¶23-24.)
135. Claimants felt abandoned, taken advantage of, cheated, betrayed,
hopeless, sad, suppressed, frustrated, angry, and disappointed by Global Horizons’
deception and false promises. (Ex18,¶¶18,47,49,53; Ex21,¶55; Ex28,¶¶39,41;
Ex32,¶¶34,36; Ex33,¶64; Ex34,¶49; Ex35,¶38; Ex37,¶30; Ex38,¶¶41,43; Ex39,¶32
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at p.11; Ex41,¶52; Ex43,¶51; Ex46,¶57; Ex51,¶23; Ex52,¶26; Ex54,¶51; Ex57,¶32;
Ex59,¶14; Ex60,¶18; Ex61,¶50; Ex122,¶¶35, 52; Ex128,¶93; Ex130,¶8;
Ex147,¶10; Ex156,¶¶36,39; Ex162,¶¶94-95; Ex166,¶8; Ex167,¶6; Ex168,¶4;
Ex180,¶¶64,87-88.)
136. Some Claimants experienced shame, embarrassment, anxiety, were
mocked at and/or called a fool after being sent back to Thailand by Global
Horizons. (Ex19,¶¶19,20; Ex51,¶25; Ex52,¶41; Ex162,¶¶63-66; Ex180,¶¶32-35.)
Anucha Homphet states:
I felt embarrassed and shameful to face my family when I was sent back to Thailand. I could not face my relatives who I borrowed deeds from. They were all afraid of losing their land. So I just stayed at my family’s farms. I didn’t want to go out. I was also afraid to spend the night at my home. I ended up spending the night in the shack in the middle of my family’s rice field because I was so embarrassed to face my family and neighbors. I was lied to, conned, and deceived by Global and its recruiters. I was afraid and embarrassed . . . .
(Ex19,¶20.)
2. Claimants Suffered Family Problems/Broken Marriages.
137. Claimants suffered family problems, including but not limited to
stress in their marriages and quarrels between them and wives, because they were
not sending enough money back to Thailand without enough work and/or the
unreasonable pay delays from Global Horizons. (Ex20,¶25; Ex32,¶¶37-38;
Ex34,¶45; Ex35,¶61; Ex38,¶40; Ex39,¶29 at p.10; Ex42,¶26; Ex127,¶52.)
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138. Some suffered mistrust between them and their wives while working
for Global Horizons and/or Maui Pineapple. (Ex41,¶50; Ex127,¶¶52,54.) Prasoet
Nomrawi said, “When I was with Maui Pineapple and Global was only giving me
24 hours a week of work, my wife suspected I was earning more but spending it on
myself, and she did not believe I was earning less and would not answer the phone
when I called. This caused mistrust between us, and strained our relationship.”
(Ex41,¶50.)
139. Some Claimants’ wives divorced them because of the long physical
separation and/or inability to pay off their debt that came from Global Horizons.
(Ex15,¶39; Ex32,¶39; Ex36,¶32; Ex42,¶26; Ex49,¶74; Ex127,¶52; Ex180,¶31.)
Ratthapon Yapunya states:
The inability to send money home caused me and my wife to argue. . . . Both of us felt very stressed by the lack of money to pay off the debt. It was during this time that my wife decided to separate from me. She wanted to divorce me . . . . I felt angry and blamed Global and Maui Pineapple for not giving me enough work because of having enough work was leading to the break-up of my family. If only I was paid what was promised, I could have paid off my debt and went home to save my family. Instead, I felt trapped because I had to continue working in the United States to earn the money to pay off the debt. I felt very depressed and cried many times over the break-up of my family.
(Ex42,¶26.)
140. Global Horizons changed the Claimants and their families’ lives
forever. Claimants thought they would be away from their families for a few years 45 Case 1:11-cv-00257-LEK-RLP Document 767 Filed 12/19/14 Page 46 of 77 PageID #: 23173
but it took them several years to pay off their debt because of the lack of work and
not getting paid. (Ex25,¶31; Ex28,¶57; Ex32,¶¶15,36; Ex35,¶56; Ex36,¶35;
Ex38,¶¶17,39; Ex39,¶¶10,33 at pp.11-12; Ex41,¶20; Ex46,¶60; Ex49,¶¶74,79;
Ex59,¶55; Ex61,¶¶53,55-56; Ex122,¶47; Ex127,¶53; Ex156,¶37.) Somsak
Wongkaeo said, “I lost my family based on Global’s false promises. I expected to
go back home to Thailand and now I lost everything. I feel that Global has ruined
my life. Every time I think about Global I start to cry.” (Ex49,¶79.)
141. Many Claimants felt sad and/or guilty that they had to be away from
their families, wives/children, for so long to pay off their debts since Global
Horizons and/or Maui Pineapple did not provide them with enough work and/or
Global Horizons did not pay them. (Ex25,¶31 at pg. 9; Ex32,¶36; Ex39,¶33 at
pp.11-12; Ex61,¶56.) Samrit Korbpimai was affected since “I don’t have a close
relationship with my family because I had to work to pay off my debt. When my
children look at me, they look at me like I am a stranger. They say hi to me that is
it. This makes me feel bad. I feel that I did not do a good job as their father.”
(Ex61,¶56.)
142. Itthi Oa-Sot suffered because he has not seen his wife and children in
approximately 10 years. He did not get to bond with his children, “they only talk to
me politely and engage in a few words of conversation with me. Each time my son
speaks to me he speaks less than 10 words.” (Ex28,¶57.)
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143. Natthawat Yahuafai was affected because
I had to be away from my children for all of those years since it took me longer to pay off my debt than what I anticipated. I felt sad because I did not think I was a good father to my children. I’m not as close to my children because I did not give them the warmth - being close to your children - as a father should . . . since I had to be here to work to pay off my debt.
(Ex35,¶56.)
144. Somboon Meesri was affected because
I have been in the U.S. for 10 years with no savings. I finish paying my debt for the recruitment fee last year. I could not go back to Thailand before paying off my debt because I would lose my family’s land and house. As a result, my family and I have been affected since we have not seen each other for the last 10 years. I did not get to see my children grow up.
(Ex59,¶55.)
145. Thawat Maitham felt sorry he was not able to provide his young child
because
When I left my family in Thailand, my youngest child was a little over a year old and I was constantly stressed because I did not know where to get money from to buy her milk. I felt sorry I was not able to provide for her. I have only seen my daughter once in the last 10 years and it was over the internet.
(Ex53,¶32.)
146. Anucha Homphet and his family “have suffered so much because of
this nightmare experience with Global. My father passed away a broken man
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because his son was saddled with debt. I could not go back to look after him when
he was ill, which makes me very sad.” (Ex19,¶75.)
3. The Money Earned by Claimants While Working for Global Horizons and/or Maui Pineapple Was Not Enough to Support their Families.
147. Some Claimants’ wives had to work because the money Claimants
earned with Global Horizons and/or Maui Pineapple was not as promised.
(Ex18,¶53; Ex21,¶21; Ex59,¶57.) Even their children had to go to Bangkok to
work because the money Claimants earned was not what Global Horizons
promised. (Ex57,¶ 33.) Nophadon Seechachet felt “embarrassed when my wife
had to explain to the family how I was not able to send enough money home. I felt
like I let her and them down . . . .” (Ex37,¶25.)
4. Claimants Feared for their Family’s Safety in Thailand.
148. Claimants were afraid for their families’ safety in Thailand because of
their inability to pay off the debt. (Ex39,¶30 at p.11; Ex49,¶76.) Krittanai
Intakaeo explained, “I was afraid that since I had only paid 580,000 of the 680,000
owed to the recruiter, people would come to my house and harm my wife and
daughter, who was only two years old when I left to work for Global.” (Ex33,¶57.)
Saran Nonanthi confirmed that his mother had to pay additional money after debt
collectors in Thailand threatened to cause her harm and take her land if she did not
pay additional money after he escaped from Global Horizons. (Ex46,¶59.)
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5. Claimants Suffered in Silence While Working for Global Horizons and/or Maui Pineapple.
149. Many of the Claimants felt they did not want to worry their families
and/or were ashamed to tell their families about Global Horizons’ and/or Maui
Pineapple’s abuses. (Ex15,¶46; Ex21,¶21; Ex24,¶19; Ex28,¶¶54, 56; Ex30,¶29;
Ex33,¶30; Ex54,¶¶45,52-53; Ex56,¶24; Ex59,¶56; Ex62,¶42; Ex122,¶29.)
Claimants stop calling their relatives and/or felt discourage to call their relatives in
Thailand because they were ashamed to talk to their family knowing they could not
help their family because Global Horizons didn’t give them enough work.
(Ex19,¶76; Ex24,¶27.)
150. Chakkrapong Khongkhao was heartbroken and felt terrible when he
told his father he did not have any money to lend him because there was not
enough work with Global Horizons, when his father asked to borrow money
because he wanted to buy a piece of land. (Ex24,¶¶26-27.)
6. Claimants Sold Their Land to Pay Debts for Recruitment Fees.
151. Some Claimants had to sell their land to pay debts for the recruitment
fees because they couldn’t pay it off while working for Global Horizons and/or
Maui Pineapple. (Ex36,¶34; Ex49,¶¶57,73-74.) Somsak Wongkaeo states that his
family suffered financially due to these delayed and non- payment of wages. Eventually, I had to sell a parcel of my farm in Thailand because I could not make payments. This was extremely difficult because the farm had been in my family for 49 Case 1:11-cv-00257-LEK-RLP Document 767 Filed 12/19/14 Page 50 of 77 PageID #: 23177
many generations, and it was my only source of income in Thailand.
(Ex49,¶57.)
7. Claimants Lost Their Land Because of Their Inability to Pay Their Debt Due to Global Horizons’and/or Maui Pineapple’s Abuses.
152. Some Claimants lost their families’ ancestral farm land because they
were unable to pay the debt due to Global Horizons’ and/or Maui Pineapple’s
abuses. (Ex28,¶45; Ex43,¶¶27,50.) Itthi Oa-Sot felt
really guilty, sad, and stressed that my family has lost their land because of me. This land was part of my wife’s heritage, and it was handed from generation to generation. . . . I feel guilty and like a real small person for losing my wife’s heritage. I am the problem instead of the solution to my family’s poverty.
(Ex28,¶45.)
8. Claimants Are Still Paying Their Debt (10 years later).
153. Some Claimants are still paying their debt, and still unable to move on
because the creditors still hold their land. (Ex19,¶¶76,79; Ex53,¶34; Ex142,¶49;
Ex156,¶5.)
9. Claimants felt imprisoned and/or like slaves while working for Global Horizons and/or Maui Pineapple.
154. Global Horizons’ supervisors confiscation of the Claimants’ passports
made them feel uneasy, anxious, uncomfortable, afraid, trapped, and/or feel like
prisoners since they were stripped of their identifications. (Ex15,¶16;
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Ex16,¶¶5,23; Ex17,¶12; Ex18,¶11; Ex19,¶¶13,74; Ex20,¶7; Ex21,¶¶11,16;
Ex22,¶10; Ex23,¶4; Ex24,¶7; Ex25,¶12; Ex27,¶4; Ex28,¶11; Ex29,¶5;
Ex30,¶¶8,16,20; Ex31,¶5; Ex32,¶5; Ex33,¶¶13,52,61; Ex34,¶¶5,26; Ex35,¶12;
Ex36,¶8; Ex37,¶¶11,13,27; Ex38,¶¶5,19; Ex39,¶12; Ex40,¶5; Ex41,¶¶5,21;
Ex42,¶6; Ex43,¶6; Ex44,¶5; Ex45,¶¶11-12; Ex46,¶¶12,14, 29; Ex47,¶5; Ex49,¶16;
Ex50,¶¶11,19; Ex51,¶¶9-10; Ex52,¶¶11-12,48; Ex53,¶10; Ex54,¶6; Ex55,¶11;
Ex56,¶¶11-12; Ex57,¶10; Ex58,¶6; Ex59,¶13; Ex60,¶17; Ex61,¶14; Ex62,¶¶11,31;
Ex122,¶¶10,18; Ex127,¶8; Ex128,¶¶7,21-22; Ex129,¶7; Ex132,¶6; Ex133,¶7;
Ex134,¶7; Ex135,¶¶6-7, 22; Ex138,¶6; Ex140,¶7,22; Ex144,¶6; Ex146,¶¶7-10;
Ex150,¶7; Ex151,¶7; Ex152,¶6; Ex153,¶¶6,18; Ex155,¶6; Ex156,¶¶10-11;
Ex157,¶6; Ex159,¶7; Ex160,¶8; Ex161,¶8; Ex162,¶¶22-25; Ex163,¶8; Ex167,¶8;
Ex169,¶7; Ex177,¶7; Ex178,¶¶7,9; Ex180,¶16.) Global Horizons supervisor
Chaiyot Goodton confirmed seeing other Global Horizons supervisors collecting
the passports from the Claimants, prohibiting the Claimants from talking about the
working conditions, and watching the Claimants. (Ex10: 98:21-99:25.)
155. Claimants felt sad and terrible that they no freedom while working for
Global Horizons and/or Maui Pineapple. (Ex18,¶¶23, 49; Ex21,¶¶16, 54;
Ex28,¶¶19-20.) Aniwat Khadphab felt that Global Horizons’ strict rules were
created by a lynch mob. (Ex18,¶31.)
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156. Claimant Amnat Phonai felt like a prisoner because
There were guards at the second [Maui Pineapple] dorm . . . [and] [t]hey had flashlights and batons with them when they patrolled the grounds at night; [Global Horizons supervisors] Sam and Shane would also patrol the grounds occasionally. Sam or Shane also started having roll call every night to make sure we were on the grounds. This made me and the other Thai workers feel like we were prisoners.
(Ex15,¶34.)
157. Claimant Amnuay Phiansing felt trapped, he had no choice but to live
in the overcrowded and filthy conditions at Maui Pineapple’s dormitory housing,
(Ex16,¶9,) like a slave
[b]ecause Sam was aware that my Thai co workers and I were hopelessly in debt, Sam would constantly threaten to deport us or transfer us to places where we would earn less money if he was not satisfied with our work. When I heard these threats, I felt that I was almost like a slave because I felt that I had no choice but to do whatever Global told me to do. I felt trapped and humiliated. I felt trapped because I needed to continue working so my family would not lose our farm land.
(Id. at ¶20.) Claimant Amnuay Phiansing also felt he and his Thai co-workers
were being tortured and feared that he would faint in Maui Pineapple’s fields due
to the physically hard labor and heat. (Id. at ¶16.)
158. Claimant Amphon Kanthawang felt like he was imprisoned “I saw
Sam physically punch a Thai co-worker [while working at Maui Pineapple]. I felt
like I was in prison and Sam was the prison guard . . . .” (Ex17,¶26.)
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159. Claimant Aniwat Khadphab “did not understand why Global and
Maui Pineapple had to supervise us Thai workers so extreme. We were not
inmates.” (Ex18,¶25.)
160. Claimant Anucha Homphet felt that:
My experience with Global at Maui Pineapple was hellish. I felt like I was living in a penal colony. . . . The working conditions were absolutely brutal at Maui Pineapple. There was no shade for us Thai workers and the weather was very hot. When the Thai workers had a heat stroke, they would have to sit in the heat until they could get up to continue working.
(Ex19,¶74.) He also states: “If I could go back in time I would not have come here
to work for Global. . . . We are victims of human trafficking because all of the
money we earned belonged to them.” (Id. at ¶78.)
161. Claimant Apichart Peayer felt like a slave when they were watched
by Global Horizons’ security at Maui Pineapple and that “the conditions Global
subjected me to were abusive. I did not have my freedom; there were rules that
restricted my freedom. They treated us like soldiers or slaves.” (Ex21,¶¶43,53.)
162. Itthi Oa-Sot felt stuck here, like a slave, and felt like he was in a
detention center at Maui Pineapple, which made him cry. (Ex28,¶¶19,51,54-55.)
163. Jakarin Phookhiew felt like a prisoner because of Global Horizons’
restrictions and there was a high metal fence containing three layers of wire
surrounding their housing facility at Maui Pineapple. (Ex29,¶8.)
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164. Liam Kajai felt like a prisoner “at the second housing location [at
Maui Pineapple because] . . . Global hired ten security guards to patrol the area 24
hours a day [and] Global supervisors Pranee and Shane told us that these guards
were immigration officials who could arrest us if we ever tried to escape . . . .”
(Ex34,¶15.)
165. Natthawat Yahuafai felt like a prisoner and slave labor which made
him feel uneasy and uncomfortable at Maui Pineapple with all of Global Horizons’
restrictions and curfews. (Ex35,¶¶25,58.) They “were threatened that if we
disobeyed the orders, we would either be sent back or not allowed to get an
extension on our contracts. That is how Global pressured or controlled us by
making these types of threats.” (Id. at ¶25.) Natthawat Yahuafai also states that, at
Maui Pineapple:
I felt imprisoned, stressful, and worried about all of Global’s house rules and constant threats that if I did not follow the rules, they would not renew my contract. Not only did Global lie and deceived me by making false promises about there being enough work, they hurt me again by imposing all of these rules and forcing me to obey or they would threatened not to renew my contract. I was forced to do what they say and I had to abide by their rules in order to continue working. Global’s supervisors created all these conditions to force us Thai workers to comply with their rules and to control us.
(Ex35,¶23.)
166. Phuchit Laoelit felt like a prisoner “When I was forbidden to leave the
housing except to work, I felt trapped, felt like a prisoner . . . hopeless when I was 54 Case 1:11-cv-00257-LEK-RLP Document 767 Filed 12/19/14 Page 55 of 77 PageID #: 23182
threatened with being sent back to Thailand before I could pay my debts,”
(Ex38,¶41,) and “[b]ad and angry that Global treated me like a slave. Their
treatment of me was humiliating . . . .” (Id. at ¶42.)
167. Ratthapon Yapunya felt that he was in jail while working for Global
Horizons and Maui Pineapple, and “emotionally drained due to being disrespected.
I felt that we were not treated as workers but as slaves.” (Ex42,¶¶23, 30.)
168. Saiphan Mornkaew felt like a prisoner because
at Maui Pineapple, the Thai workers and I were instructed by Global’s supervisors to never leave the housing and work premises without Global’s supervision, and to never to speak to strangers/outsiders. There was a high metal fence with barbed wire on top surrounding our housing facility. Global subjected us to a curfew and daily head count. I felt like a prisoner.
(Ex43,¶9.)
169. Saran Nonanthi felt like he was treated like a child with the rules
imposed by Global Horizons and his living situation, “They had a fence around me
and wanted me to stay within the fence. They had a very effective threat of sending
anyone who disobeyed or broke the rules home.” (Ex46,¶46.)
170. Somjai Phobai felt imprisoned “during my employment at Maui
Pineapple, the Thai workers and I were instructed by Global’s supervisors to never
leave the housing and work premises without Global’s supervision, and to never to
speak to strangers/outsiders. Global also subjected us to a curfew and daily head
count. I felt imprisoned.” (Ex48,¶8.) 55 Case 1:11-cv-00257-LEK-RLP Document 767 Filed 12/19/14 Page 56 of 77 PageID #: 23183
171. Samrit Korbpimai felt like a prisoner due to Global Horizons’
restrictions and headcounts at Maui Pineapple. (Ex61,¶28.)
172. Claimants also felt like prisoners or uncomfortable by Global
Horizons’ rules and/or Global Horizons’ security guards watching them 24 hours
per day 7 days per week in Washington before they were sent back to Thailand
and/or to work in Hawaii. (Ex133,¶¶11,31; Ex140,¶21; Ex146,¶14; Ex156,¶14;
Ex157,¶9; Ex160,¶9; Ex161,¶12; Ex162,¶61; Ex169,¶11; Ex177,¶10; Ex178,¶12;
Ex180,¶27.)
10. Maui Pineapple was one of the worst farms the Claimants worked at while working for Global Horizons.
173. Amnuay Phiansing states that he
faced the most hardship in my life as a worker while working at Maui Pineapple. The work was so hard that my hands hurt and became numb due to the repetitive motion of picking pineapples and my toe nails became infected . . . . The experience working at Maui Pineapple still affects me today because I still feel angry when I think about all the abuses that I suffered while working at Maui Pineapple. If I had known the hardship that I would have to endure while working at Maui Pineapple, I would not have come to the United States.
(Ex16,¶23.)
174. Amphon Kanthawang’s life at Maui Pineapple
was hell and I thought my life would end at Maui Pineapple. It was very hard work. We had to walk through the dense pineapple grove, pick the pineapple, break the stem of the pineapple, and place the pineapple on the conveyor belt of a fast moving tractor. It was very fast pace and we had to keep up 56 Case 1:11-cv-00257-LEK-RLP Document 767 Filed 12/19/14 Page 57 of 77 PageID #: 23184
with the moving tractor. I saw some of my Thai co-workers faint in the fields at Maui Pineapple. On average, I would see two of my Thai co-workers fainting in the fields per day. Some of Maui Pineapple’s employees (tractor drivers) also saw my Thai co-workers faint in the fields but did not stop to help them. I felt cramps all over my body due to the strenuous work but I had to pull through for my family because I could not afford not to, otherwise, they had no roof over their heads.
(Ex17,¶53.)
175. Boonlue Khadkantha states:
My worst experience was when I worked for Global at Maui Pineapple. We did not have enough food to eat and we were forbidden from cooking at the housing. If we were caught cooking Global would destroy all or our utensils. We were confined to an area, not allowed to go outside, not allowed to talk to outsiders or meet strangers, we were subject to a curfew, and roll call in order to prevent us from running away. We were always threatened to be sent back to Thailand or threatened with arrest by Sam. Sam challenged us to duals. It was too much to bare [sic] . . . .
(Ex22,¶37.)
176. Itthi Oa-Sot felt that:
The working conditions [especially at Maui Pineapple] were much harder than in Thailand. I was at a loss for words/speechless because I never thought these horrible living and working conditions would exist in the U.S. I had seen my Thai co-workers pass out when we were working at Maui Pineapple but there was nothing anyone could do because we had so much debt.
(Ex28,¶47.)
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177. Krittanai Intakaeo was under “[a] lot of stress . . . at Maui Pineapple
because there was not enough work to do and not enough money to live . . . I felt
really helpless because there was no money in my account to even buy food.”
(Ex33,¶55.)
178. Nophadon Seechachet states that:
The living conditions at Maui Pineapple were worse than they were at Kauai and when I worked in Israel. I had to store my personal belongings under and next to the bed because the place was so small. The Global supervisors told us we cannot associate with outsiders, and gambling and alcohol was forbidden.
(Ex37,¶17.)
179. Thawat Maithan states:
I never experienced such physically grueling work as I did at Maui Pineapple. It would rain and then all of sudden it would be hot and I had to continue working with sweat and steam coming out of my body. Sometimes, I was unable to work for a couple of days because of the cramps I had all over my body, from my abdomen down to my legs due to the physically grueling work.
(Ex53,¶25.)
180. Somboon Meesri states that:
Global was more strict at the second housing at Maui Pineapple. There the two gates with security guards. There was an electric wire with bells on the back door. If we went through, we would be electrocuted. Global’s supervisor Roy warned us that if we tried to leave, we would be electrocuted, and that Global would not be responsible.
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(Ex59,¶46.) He also states:
I fell down to hell even though I was still alive while working for Global at Maui Pineapple. It was a terrible experience. The living conditions, food and transportation were bad. If I did not owe so much, I would not hesitate to leave Global. I had no choice but to endure this hardship.
(Ex59,¶59.)
III. CONCLUSIONS OF LAW
A. Statutory Damages Cap
1. Global Horizons is an employer subject to the $300,000 cap for
compensatory and punitive damages because it employed over 500 employees
during the relevant time period. 42 U.S.C. § 1981A(b)(3)(D). (Ex1#s 213-17,
deemed admitted pursuant to Fed. R. Civ. P. 34.)
2. Maui Pineapple is an employer subject to the $300,000 cap for
compensatory and punitive damages because it employed over 500 employees
during the relevant time period. 42 U.S.C. § 1981A(b)(3)(D). (Ex112#s 330-33.)
B. Global Horizons’ and Maui Pineapple’s Joint Liability
3. Global Horizons and Maui Pineapple are jointly liable for the
damages awarded to the Claimants who worked at Maui Pineapple in 2004 and
2005.
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C. Compensatory Damages of $50,000 to Each Claimant is Reasonable Based on Global Horizons’ and Maui Pineapple’s Default and their Uncontested Liability for the Pattern or Practice of Discrimination, Hostile Work Environment, and Retaliation affecting the Claimants Global Horizons Brought to Work In Hawaii.
4. “Plaintiff’s burden in ‘proving up’ damages [on a motion for default
judgment] is relatively lenient.” Philip Morris USA, Inc. v. Castworld Products,
Inc., 219 F.R.D. 494, 498 (C.D. Cal. 2003) (citing Greyhound Exhibitgroup, Inc. v.
E.L.U.L Realty Corp., 973 F.2d 155, 159 (2d Cir. 1992)).
5. “With respect to the determination of liability and the default
judgment itself, the general rule is that well-pled allegations in the complaint
regarding liability are deemed true.” Fair Housing of Marin v. Combs, 285 F.3d
899, 906 (9th Cir. 2002). The Court hereby adopts as true all of the allegations in
the EEOC’s TAC.
6. In addition to the allegations in the complaint, the court may also take
into consideration later provided evidence in the form of affidavits and exhibits.
TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987).
7. “The district court is not required to make detailed findings of fact.”
Adriana Int’l Corp. v. Thoeren, 913 F.2d 1406, 1414 (9th Cir. 1990).
8. This Court’s findings of fact in EEOC v. Global Horizons, Inc., 7 F.
Supp. 3d 1053 (D. Haw. 2014), suffice to award compensatory damages of
$50,000 for each Claimant.
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D. Compensatory Damages
9. The court may award compensatory damages for “future pecuniary
losses, emotional pain, suffering, inconvenience, mental anguish, loss of
enjoyment of life, and other nonpecuniary losses.” 42 U.S.C. § 1981a(b)(3).
10. “Compensatory damages ‘are intended to redress the concrete loss that
the plaintiff has suffered by reasoning of the defendant’s wrongful conduct.’”
State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 416 (2003).
11. Compensatory damages are warranted here because in a default
judgment, the well-pled allegations in the complaint regarding liability are true and
upon a finding of liability of a pattern or practice of discrimination as exists here
for discrimination, hostile work environment, and retaliation, each Claimant’s pain
and suffering is uncontested. Fair Housing of Marin, v. Combs, 285 F.3d 899, 906
(9th Cir 2002).
12. The Ninth Circuit rejected a Fourth Circuit holding from Price v. City
of Charlotte, 93 F.3d 1241, 1251 (4th Cir. 1996), that emotional distress damages
must be supported by substantial evidence. Zhang v. American Gem Seafood, Inc.,
339 F.3d 1020, 1040 (9th Cir. 2003). “The holding of Price that ‘the evidence of
the emotional distress must be demonstrable, genuine, and adequately explained,’
is not the law of this Circuit.” Zhang, 339 F.3d at 1040 (citing Price, 93 F.3d at
1251).
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13. “While objective evidence requirements may exist in other circuits,
such a requirement is not imposed by case law in . . . the Ninth Circuit, or the
Supreme Court.” Id. (quoting Passantino v. Johnson & Johnson Consumer Prods.,
Inc., 212 F.3d 493, 513 (9th Cir. 2000)); Chalmers v. City of Los Angeles, 762 F.2d
753, 761 (9th Cir. 1985) (upholding emotional damages based solely on
testimony); Johnson v. Hale, 13 F.3d 1351, 1352 (9th Cir. 1994) (noting that
emotional damages may be awarded based on testimony alone or appropriate
inference from circumstances); Carey v. Piphus, 435 U.S. 247, 264 n.20 (1978)
(noting that emotional distress damages are “essentially subjective” and may be
proven by reference to injured party’s conduct and observations by others).
14. The Ninth Circuit in Zhang held that the plaintiff’s testimony of
disappointment, humiliation, and feeling that his dignity and reputation had been
hurt were sufficient to award compensatory damages of either $123,155 or
$223,155 for national origin discrimination. 339 F.3d at 1040-41.
15. The Claimants’ declarations are sufficient to award compensatory
damages of $50,000 to each Claimant in this action due to the egregious and
pervasive nature of the discrimination as described in this Court’s findings of fact
set forth in EEOC v. Global Horizons, Inc., 7 F. Supp. 3d 1053 (D. Haw. 2014).
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E. Punitive Damages
16. Punitive damages “are aimed at deterrence and retribution.”
Campbell, 538 U.S. at 416.
17. Punitive damages “may properly be imposed to further [the
government’s] legitimate interest in punishing unlawful conduct and deterring its
repetition.” Id.
18. In a federal employment discrimination suit, punitive damages are
awarded against an employer who “‘discriminate[s] in the face of a perceived risk
that its actions will violate federal law.’ . . . [A]lthough egregious conduct could be
evidence of intent to break the law, such conduct [is] not required to establish
punitive damages liability. Thus, in general, intentional discrimination is enough
to establish punitive damages liability.” Passantino, 212 F.3d at 515 (quoting
Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 536 (1999)).
19. “Under Title VII, a plaintiff is entitled to punitive damages if he or
she ‘demonstrates that the respondent engaged in a discriminatory practice or
discriminatory practices with malice or with reckless indifference to the federally
protected rights of an aggrieved individual.’” Pavon v. Swift, 192 F.3d 902, 909
(9th Cir. 1999) (quoting 42 U.S.C. § 1981a(b)(1)).
20. In a Title VII discriminatory discharge case the Ninth Circuit held that
“to be entitled to an award of punitive damages, the plaintiff must demonstrate that
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the defendant ‘almost certainly knew that what he was doing was wrongful and
subject to punishment.’” Pavon, 192 F.3d at 909 (quoting Ngo v. Reno Hilton
Resort Corp., 140 F.3d 1299, 1304 (9th Cir. 1998)).
21. The Supreme Court provided three “guideposts” for determining
whether punitive damages are excessive: (1) “the degree of reprehensibility of the
defendant’s conduct”; (2) “[the] ratio to the actual harm inflicted on the plaintiff”;
and (3) “civil or criminal penalties that could be imposed for comparable
misconduct.” BMW of North America, Inc. v. Gore, 517 U.S. 559, 575-83 (1996).
22. The three guideposts for assessing punitive damages while not to be
“rigidly or exclusively applied,” provide a framework to be viewed in the context
of the case. In re Exxon Valdez, 472 F.3d 600, 613 (9th Cir. 2006).
23. The Supreme Court and the Ninth Circuit have noted that the
“reprehensibility of the defendant’s conduct” is the most important. Arizona v.
ASARCO, LLC, 733 F.3d 882, 886 (9th Cir. 2013) (quoting Gore, 517 U.S. at 575
(“Perhaps the most important indicium of the reasonableness of a punitive damages
award is the degree of reprehensibility of the defendant’s conduct.”)).
24. The Ninth Circuit has reiterated that “‘intentional discrimination’ is a
‘serious affront to personal liberty’ and should be considered high on the
reprehensibility scale” for purposes of assessing punitive damages. Arizona v.
ASARCO, LLC, 733 F.3d 882, 885-92 (9th Cir. 2013) (citing Zhang v. Am. Gem
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Seafoods, Inc., 339 F. 3d 1020, 1043 (9th Cir. 2013) (citing Romano v. U–Haul
Int’l, 233 F.3d 655, 673 (1st Cir. 2000) (finding that a plaintiff’s termination on the
basis of her sex was “more reprehensible than would appear in a case involving
economic harms only”))).
25. In determining the reprehensibility of conduct, the Supreme Court
instructed lower courts to consider whether:
the harm caused was physical as opposed to economic; the tortious conduct evinced an indifference to or a reckless disregard of the health or safety of others; the target of the conduct had financial vulnerability; the conduct involved repeated actions or was an isolated incident; and the harm was the result of intentional malice, trickery, or deceit, or mere accident.
Campbell, 538 U.S. at 419.
26. The Ninth Circuit has ranked “threats of violence” as highest and
“acts of omission and mere negligence” lowest on the reprehensability scale.
ASARCO, 733 F.3d at 886; Mendez v. County of San Bernardino, 540 F.3d 1109,
1120 (9th Cir. 2008); Swinton v. Potomac Corp., 270 F.3d 794, 818 (9th Cir.
2001). The Court’s above findings of fact demonstrate that Global Horizons
engaged reprehensible acts including but not limited to threats of violence and
impose actual violence on the Claimants. Similarly, the Court’s above findings of
fact demonstrate Maui Pineapple’s reckless indifference to the violations
Claimants suffered. Maui Pineapple’s reckless indifference to the violations of
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Claimants’ rights under Title VII constitute greater fault than acts of omission or
mere negligence.
27. The Ninth Circuit noted in Passantino that, after Kolstad, “in general,
intentional discrimination is enough to establish punitive damages liability.”
Passantino, 212 F.3d at 515.
28. Global Horizons’ Chief Executive Officers Orian is designated as a
proxy for purposes of punitive damages liability.
29. Global Horizons’ Vice President Knoller is designated as a proxy for
Global Horizons for purposes of punitive damages liability.
30. Punitive damages are warranted in this action, because the EEOC’s
case of intentional discrimination is based in part on the racial stereotypes against
the Thai Claimants that were articulated by Global Horizons’ CEO Orian who is a
proxy for Global Horizons. Hemmings v. Tidyman’s, Inc., 285 F.3d 1174, 1198-99
& n.24 (9th Cir. 2001).
31. Punitive damages are further warranted in this action, because the
EEOC’s case of intentional discrimination is based in part on the physical and
verbal abuse against Claimants by Global Horizons’ Vice President Knoller who is
a proxy for Global Horizons. Id.
32. Because this Court found that Global Horizons’ top management
Knoller, Tubchumpol, Germann, and Wongsesanit harassed the Claimants in the
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face of the perceived risk their conduct violated the law, EEOC v. Global
Horizons, Inc., 7 F. Supp. 3d at 1061, punitive damages are warranted as to each
Claimant.
33. Substantial punitive damages are warranted in this action because
Global Horizons’ standard operating procedure was to deter complaints about
discrimination, interfere in governmental investigations regarding the
discriminatory conduct, and to retaliate against Claimants who complained or
participated in such investigation.
34. The Ninth Circuit has held that substantial punitive damages may be
award even where the fact-finder awards no compensatory damages or nominal
damages. ASARCO, 733 F.3d at 885-92 (125,000:1 ratio between punitive
damages and compensatory damages “reasonable” for an individual victim of
sexual harassment under Title VII where jury awarded $0 in compensatory
damages, punitive damages reduced from $300,000 to $125,000).
35. Punitive damages are warranted where it is uncontested that Claimants
who were brought to work in Hawaii by Global Horizons were subjected to a
pattern or practice of discrimination, hostile work environment, and retaliation.
(Dkt. No. 682.)
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36. An award of $100,000 to each Claimant for punitive damages furthers
the EEOC’s statutory mandate to enforce Title VII by punishing unlawful conduct
and deterring its repetition.
37. It would be reasonable to award a total award to each Claimant of
$150,000 in compensatory and punitive damages in this case because each
Claimant suffered the same pattern or practice of discrimination, hostile work
environment, and retaliation including threats of violence which the Ninth Circuit
recognized as highest on the reprehensibility scale for punitive damages.
ASARCO, 733 F.3d at 886.
38. This Court rejects the EEOC’s argument that each Claimant should
receive a total of $300,000 in compensatory and punitive damages. In so ruling,
the Court recognizes that all of the Claimants were subjected to deplorable
conditions, but the Court notes that the record indicates that some Claimants were
subjected to more brutal treatment than others. The EEOC has chosen to seek
damages based on generalized proof regarding Global Horizons’ and Maui
Pineapple’s pattern and practice, with anecdotal evidence of specific incidents, and
that evidence overall does not support the requested damages amount. The EEOC
has not sought individual damages awards to each Claimant based upon the
specific conditions and treatment to which each Claimant was subjected. This
Court concludes that an award of $50,000 in compensatory damages and $100,000
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in punitive damages, for a total award of $150,000, to each Claimant is sufficient
to reflect the seriousness of injuries inflicted upon the class of Claimants as a
whole.
F. EEOC’s Damages Request Remains Uncontested because Global Horizons and Maui Pineapple Failed to Establish their Burden of Refuting that the Pattern or Practice of Discrimination, Hostile Work Environment, and Retaliation did not apply to any Claimant.
39. At the initial “liability” stage of a pattern-or-practice suit, the EEOC is
not required to offer evidence that each person for whom it will ultimately seek
relief was a victim of the employer’s discriminatory policy. The EEOC met its
burden is to establish a prima facie case that such a policy existed. The burden
then shifts to the Defendants to defeat the prima facie showing of a pattern or
practice by demonstrating that the EEOC’s proof is either inaccurate or
insignificant. Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 336 (1977).
40. Global Horizons and Maui Pineapple failed to defeat the prima facie
showing of the pattern or practice. The EEOC’s well-pled allegations that each
Claimant was subjected to egregious discrimination remains unchallenged and
warrants damages in the amount of $150,000 for each of the Claimants identified
by the EEOC.
41. To the extent any finding of fact is more properly considered a
conclusion of law, it shall be deemed as such. To the extent any conclusion of law
is more properly considered a finding of fact, it shall be deemed as such. 69 Case 1:11-cv-00257-LEK-RLP Document 767 Filed 12/19/14 Page 70 of 77 PageID #: 23197
IV. CONCLUSION
For good cause shown based on the foregoing, IT IS HEREBY
ORDERED that:
1. The Court grants the EEOC’s request for damages and injunctive
relief;
2. Global Horizons is liable for total damages of $12,300,000 or
$150,000 for each of the 82 Claimants that Global Horizons brought to work in
Hawaii as provided by the Civil Rights Act of 1991, 42 U.S.C. §1981a(b)(3)(D)
and who submitted signed declarations in support of the EEOC’s request for
damages (Exs15-62, 122, 127-30, 132-35, 138, 140, 144, 146-47, 150-53, 155-57,
159-63, 166-69, 171, 177-78, 180).
3. The Court offsets $3,600,000 from Global Horizons’ total damages of
$12,300,000. The offset of $3,600,000 represents the total amount from the
settlements between the EEOC and other defendants, Captain Cook Coffee Co.,
Ltd., Del Monte Fresh Produce (Hawaii), Inc., Kauai Coffee Company, Inc.,
Kelena Farms, Inc., and Mac Farms of Hawaii, LLC, in this case.
4. Accordingly, the total monetary damages award for the 82 Claimants
Global Horizons brought to work in Hawaii and who submitted signed declarations
in support of the EEOC’s request for damages is $8,700,000.
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5. Global Horizons and Maui Pineapple are jointly and severally liable in
the amount of $150,000 to each of the 54 Claimants identified by the EEOC as a
Claimant who worked at Maui Pineapple and who submitted signed declarations in
support of the EEOC’s request for damages. (Exs15-48, 50, 52-62, 122, 130, 147,
152, 166-68, 171.) Thus, Global Horizons and Maui Pineapple are jointly and
severally liable for $150,000 x 54 = $8,100,000.
6. Of the $8,700,000 in damages awarded against Global Horizons,
Global Horizons and Maui Pineapple are jointly and severally liable for $8,100,000
because 54 Claimants out of the 82 Claimants Global Horizons brought to work in
Hawaii worked at Maui Pineapple.
7. To the extent that Global Horizons fails to pay $8,700,000 within
twenty (20) days of the entry of this judgment, such amount shall be entered as a
judgment against Global Horizons and post judgment interest shall be awarded
from the date of the judgment through the date of collection pursuant to 28 U.S.C.
§ 1961.
8. To the extent that Maui Pineapple and/or Global Horizons fail to pay
$8,100,000 for the 54 Claimants who worked at Maui Pineapple and who
submitted signed declarations in support of the EEOC’s request for damages within
twenty (20) days of the entry of this judgment, such amount shall be entered as a
judgment against Maui Pineapple and Global Horizons post judgment interest shall
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be awarded from the date of the judgment through the date of collection pursuant
to 28 U.S.C. § 1961.
9. The Court grants the EEOC’s request for a permanent injunction
against Global Horizons and Maui Pineapple.
10. Global Horizons and Maui Pineapple are hereby enjoined from
engaging in any conduct that violated Title VII, including direct acts of
discrimination by their proxies, and/or Global Horizons’ and/or Maui Pineapple’s
negligent failure to prevent and/or correct discrimination by their respective agents,
employees, and/or sub-contractors and their sub-contractors’ supervisory
employees.
11. Global Horizons and Maui Pineapple are hereby enjoined from
engaging in, implementing, or permitting any action, policy or practice with the
purpose of retaliating against any person who engaged in protected activity with
respect to Title VII.
12. Global Horizons and Maui Pineapple shall develop, implement, and
effectively distribute to all employees a policy and complaint procedure (“Policy”)
with respect to discrimination and retaliation. Global and Maui Pineapple shall
translate the policies and procedures into the dominant language of the employees
so that they can understand them.
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13. Global Horizons and Maui Pineapple shall develop and implement a
procedure regarding how to conduct, document, and report an investigation of
discrimination complaint (“Investigation Procedure”).
14. Global Horizons and Maui Pineapple shall ensure annual, live training
for all supervisory employees regarding their rights, responsibilities, and
obligations under the Policy, the Investigation Procedure, and with respect to
discrimination and retaliation. Global Horizons and Maui Pineapple shall also
ensure annual, live training of at least one hour for all non-supervisory employees
regarding their rights and responsibilities under the Policy, the Investigation
Procedure, and with respect to discrimination and retaliation.
15. Maui Pineapple should hold all Farm Labor Contractors (“FLC”)
accountable for Title VII compliance. Prior to entering into a contract with any
FLC, Maui Pineapple shall require the contractor to provide Maui Pineapple a copy
of its anti-discrimination, anti-harassment, and anti-retaliation policies and
reporting process.
a. If a complaint is lodged with Maui Pineapple, it shall refer to
the FLC for investigation and resolution.
b. If a complaint is lodged about Maui Pineapple’s employees,
Maui Pineapple shall investigate promptly and resolve the matter and refer it to the
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FLC. Any contract shall include a provision requiring the FLC to comply with all
federal, state, and local laws.
c. Maui Pineapple shall conduct audits of the housing provided to
any FLC or labor contractor employees during the contract period.
d. Maui Pineapple shall provide, publicize, and post a Hotline for
its FLC’s employees to contact Maui Pineapple regarding any questions, concerns,
and/or complaints pertaining to their working and/or housing conditions during
their employment at Maui Pineapple.
e. Maui Pineapple shall provide an orientation for all FLC’s
employees to inform them directly of the Hotline.
f. Maui Pineapple shall further assess and/or monitor all FLC’s
hired by requiring that the FLC maintain and/or provide to Maui Pineapple within
ten (10) days of a request by Maui Pineapple the following:
i. payroll documents and cancelled checks;
ii. all complaints regarding failure to pay wage, pay delays
or shortages;
iii. certification by pay period of payment of all wages due
under penalty of perjury in a form created and/or approved by Maui Pineapple;
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iv. copy of policies regarding against discrimination, hostile
work environment, retaliation, and/or issues pertaining to pay and/or benefits and
polices regarding investigation of such complaints;
v. certification of the completion of training for supervisors
regarding Title VII once every two years;
vi. copy of Notice of Action listing all employees authorized
to work at Maui Pineapple under each particular Labor Certification pertaining to
Maui Pineapple;
vii. certification confirming list of all workers authorized and
assigned under the clearance order;
viii. notification to Maui Pineapple within ten (10) days when
a FLC employee leaves or transfers and a summary of the reasons and/or
circumstances;
ix. certification regarding prior complaints, investigation,
findings, and resolution of any matters pertaining to Title VII;
x. certification of habitable housing;
xi. certification of access to adequate food and water
supplies for workers;
xii. certification regarding any recruitment fees charged by
the FLC or any agent of the FLC;
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xiii. certification that FLC reimbursed any travel
reimbursement due to any worker;
xiv. certification of payment of guaranteed pay where work
completed prior to end of the contract period;
xv. confirmation of valid federal farm labor contractor’s
license and for the applicable state and farm labor contractor driver’s license(s);
xvi. certification regarding safe and not overcrowded
transportation from housing to farm and at farm;
xvii. certification regarding whether the FLC has received any
complaints of discrimination prior to any contract with Maui Pineapple; and
xviii. description of actions taken in response to the complaints
and summary of resolution.
16. Should Global Horizons engage recruiters or contract with recruiters,
Global Horizons shall ensure that they comply with obligations under Title VII.
Global Horizons shall provided all of its policies and procedures regarding Title
VII to all recruiters who provide services to Global Horizons and Global Horizons
shall ensure that the recruiters comply with Title VII and this Injunction. Global
Horizons shall ensure that the recruiters disseminate Global Horizons’ policies and
procedures regarding Title VII to all applicants.
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17. Global Horizons shall ensure that all employees are paid for work they
performed and ensure that its policies, procedures, and practices pertaining to
payment of wages and/or benefits do not discriminate.
18. Global shall comply with all state and federal employment laws,
including all laws relating to discrimination based on legally protected class in
employment.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAI`I, December 19, 2014.
/s/ Leslie E. Kobayashi Leslie E. Kobayashi United States District Judge
UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION V. GLOBAL HORIZONS, INC., ET AL.; CIVIL NO. 11- 00257 LEK-RLP; FINDINGS OF FACT AND CONCLUSIONS OF LAW
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1 CAMILO ECHAVARRIA (State Bar No. 192481) [email protected] 2 ANNA R. BUONO (State Bar No. 232753) [email protected] 3 DAVIS WRIGHT TREMAINE LLP 865 South Figueroa Street, 24th Floor 4 Los Angeles, California 90017-2566 Telephone: (213) 633-6800 5 Fax: (213) 633-6899 6 Attorneys for Defendant MACK’S MEDICAL CENTER 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF LOS ANGELES 10 JENNIFER DOGGSTER, Case No. BC-XXXXXXX 11 [Assigned to the Hon. Judge] Plaintiff, 12 DEFENDANT’S NOTICE OF MOTION vs. AND MOTION FOR SUMMARY 13 JUDGMENT OR, IN THE ALTERNATIVE, MACK’S MEDICAL CENTER, and DOES 1 SUMMARY ADJUDICATION 14 through 10, inclusive, Date: January 19, 2018 15 Defendants. Time: 8:30 a.m. Dept.: 24 16 [Separate Statement of Undisputed Material 17 Facts; Compendium of Evidence with Declarations and Exhibits; [Proposed] Order] 18 filed concurrently] 19 Action Filed: April 14, 2016 20 Trial Date: Not Set
21 22 23 24 25 26 27 28
MOTION FOR SUMMARY JUDGMENT 4811-4410-8113v.1 0016924-000381 1 TABLE OF CONTENTS 2 Page 3 I. INTRODUCTION/SUMMARY OF ARGUMENT ...... 7 4 II. STATEMENT OF UNDISPUTED FACTS ...... 8 5 A. Background Regulatory And Contractual Requirements Of The Hospital...... 8 6 B. Plaintiff’s Temporary Assignment From November 16, 2015 To May 21, 2016 ...... 9 7 C. Plaintiff’s Initial Request For An Accommodation ...... 9 8 D. Plaintiff’s Request To Bring Her Service Dog To The Emergency Room ...... 10 9 1. The Hospital Engages In The Interactive Process With 10 Plaintiff ...... 10 11 2. The Hospital Continues The Interactive Process With Plaintiff ...... 12 12 E. Plaintiff Files Suit, And Asks For A Contract Extension Just Days Before Her Contract Is Set To Expire ...... 13 13 III. LEGAL ARGUMENT ...... 14 14 A. Issue No. 1: Plaintiff’s First Cause Of Action Based On Civil Code Section 15 54.2 Is Without Merit Because That Statute Does Not Apply Here ...... 14 16 B. Issue No. 2: Plaintiff’s Second Cause Of Action For Failure To Accommodate Fails Because She Was Provided A Reasonable 17 Accommodation And Her Insistence To Bring Her Service Dog To Work Was An Undue Hardship ...... 16 18 1. Plaintiff Received A Reasonable Accommodation ...... 16 19 2. Plaintiff’s Request To Bring Her Dog To Work Was Not Reasonable 20 And Posed An Undue Hardship ...... 19
21 C. Issue No. 3: Plaintiff’s Cause Of Action For Failure To Engage In The Interactive Process Fails Because She Was Accommodated And, Regardless, 22 The Hospital Engaged In A Lengthy Interactive Process ...... 21 23 IV. CONCLUSION ...... 26 24 25 26 27 28
1 DAVIS WRIGHT TREMAINE LLP 865 S. FIGUEROA ST, SUITE 2400 MOTION FOR SUMMARY JUDGMENT LOS ANGELES, CALIFORNIA 90017-2566 (213) 633-6800 4811-4410-8113v.1 0016924-000381 Fax: (213) 633-6899 1 TABLE OF AUTHORITIES 2 Page
3 CASES
4 Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60 (1986) ...... 17 5 6 Bass v. County of Butte, 458 F.3d 978 (9th Cir. 2006) ...... 15, 16 7 Bates v. UPS, 8 511 F.3d 974 (9th Cir. 2007) ...... 16
9 Beale v. GTE California, 999 F.Supp. 1312 (C.D. Cal. 1996) ...... 19 10 11 Brundage v. Hahn, 57 Cal.App.4th 228 (1997) ...... 17 12 Chen v. County of Orange, 13 96 Cal.App.4th 926 (2002) ...... 24
14 Cucuzza v. City of Santa Clara, 104 Cal.App.4th 1031 (2002) ...... 25 15 EEOC v. Townley Eng’g, Mfg., Co., 16 859 F.2d 610 (9th Cir. 1988) ...... 19 17 Franklin v. Dynamic Details, Inc., 18 116 Cal.App.4th 375 (2004) ...... 24
19 Gen. Dynamics Corp. v. Superior Court, 7 Cal.4th 1164 (1994) ...... 23 20 Hanson v. Lucky Stores, Inc., 21 74 Cal.App.4th 215 (1999) ...... 17, 22 22 Hardin v. Wal-Mart Stores, Inc., 23 2009 U.S. Dist. LEXIS 85525 (E.D. Cal. 2009) ...... 16 24 Hersant v. Dep’t of Social Services, 57 Cal.App.4th 997 (1997) ...... 25 25 Iwekaogwu v. City of Los Angeles, 26 75 Cal.App.4th 803 (1999) ...... 23 27 Jensen v. Wells Fargo Bank, 28 85 Cal. App. 4th 245 (2000) ...... 19
2 DAVIS WRIGHT TREMAINE LLP 865 S. FIGUEROA ST, SUITE 2400 MOTION FOR SUMMARY JUDGMENT LOS ANGELES, CALIFORNIA 90017-2566 (213) 633-6800 4811-4410-8113v.1 0016924-000381 Fax: (213) 633-6899 1 Johnson v. Nordstrom, Inc., 260 F.3d 727 (7th Cir. 2001) ...... 19 2 Lopez v. County of Tulare, 3 2012 U.S. Dist. LEXIS 1833 (E.D. Cal. 2012) ...... 16 4 McRae v. Dep’t of Corr. & Rehab., 5 142 Cal.App.4th 377 (2006) ...... 24
6 Nadaf-Rahrov v. Neiman Marcus Group, Inc., 166 Cal.App.4th 952 (2008) ...... 19, 21 7 Prilliman v. United Air Lines, Inc., 8 53 Cal.App.4th 935 (1997) ...... 17 9 Reeves v. Safeway Stores, Inc., 10 121 Cal.App.4th 95 (2004) ...... 24 11 Sandell v. Taylor-Listug, Inc., 188 Cal.App.4th 297 (2010) ...... 25 12 Soldinger v. Northwest Airlines, Inc., 13 51 Cal.App.4th 345 (1996) ...... 17 14 Spitzer v. Good Guys, 15 80 Cal.App.4th 1376 (2000) ...... 19 16 Tannlund-McCoy v. Golden Gate Bridge, Highway & Transp. Dist., 2003 U.S. Dist. LEXIS 13619 (N.D. Cal. 2003) ...... 23 17 Trans World Airlines, Inc. v. Hardison, 18 432 U.S. 63 (1977) ...... 19
19 Villiarimo v. Aloha Island Air, Inc., 20 281 F.3d 1054 (9th Cir. 2002) ...... 19
21 Watkins v. Ameripride Servs., 375 F.3d 821 (9th Cir. 2004) ...... 17, 19 22 Wilson v. County of Orange, 23 169 Cal.App.4th 1185 (2009) ...... 21, 22, 23
24 STATUTES 25 42 U.S.C. 26 §§ 12111-12117 ...... 15 §§ 12131-12189 ...... 15 27 28
3 DAVIS WRIGHT TREMAINE LLP 865 S. FIGUEROA ST, SUITE 2400 MOTION FOR SUMMARY JUDGMENT LOS ANGELES, CALIFORNIA 90017-2566 (213) 633-6800 4811-4410-8113v.1 0016924-000381 Fax: (213) 633-6899 1 California Civil Code § 54(c) ...... 16 2 § 54.1 ...... 14 3 § 54.1(a)(1) ...... 14, 15 § 54.1(a)(3) ...... 15 4 § 54.2 ...... 5, 14, 16 § 54.2(a) ...... 14 5 California Code of Civil Procedure 6 § 437c ...... 5 7 California Government Code 8 § 12940(h) ...... 23 § 12940(m) ...... 5 9 § 12940(n) ...... 5, 21
10 OTHER AUTHORITIES
11 45 C.F.R. 164.500 et seq...... 15 12 13 14 15 16 17 18 19 20
21 22 23 24 25 26 27 28
4 DAVIS WRIGHT TREMAINE LLP 865 S. FIGUEROA ST, SUITE 2400 MOTION FOR SUMMARY JUDGMENT LOS ANGELES, CALIFORNIA 90017-2566 (213) 633-6800 4811-4410-8113v.1 0016924-000381 Fax: (213) 633-6899 1 TO PLAINTIFF CHRISTINA PLAINTIFF AND HER ATTORNEYS OF RECORD: 2 PLEASE TAKE NOTICE THAT on January 19, 2018, at 8:30 a.m. or as soon thereafter 3 as the matter may be heard in Department 24 of the above-entitled Court located at 111 North Hill 4 Street, Los Angeles, California 90012, defendant Mack’s Medical Center (“Hospital”) will and 5 hereby does move this Court (1) for an order of summary judgment pursuant to Code of Civil 6 Procedure § 437c as to all of the claims asserted against it in the complaint of Plaintiff Jennifer 7 Doggster (“Plaintiff”), or (2) in the alternative, an order of summary adjudication as to the issues 8 stated below (or any of them). 9 This Motion is made, pursuant to Cal. Civ. Proc. Code § 437c, upon the ground that there is 10 no triable issue as to any material fact for any of the causes of action set forth in the complaint 11 against the Hospital and consequently the Hospital is entitled to judgment as a matter of law on 12 each of these causes of action and/or on each of the following issues: 13 Issue No. 1: The Hospital is entitled to summary adjudication of Plaintiff’s first cause of 14 action for violation of Civil Code Section 54.2 because: (i) she was not denied public access at any 15 time and (ii) the Disabled Persons Act does not apply to employment claims. See Section IV(A), 16 infra. 17 Issue No. 2: The Hospital is entitled to summary adjudication of Plaintiff’s second cause of 18 action for failure to accommodate under the Fair Employment and Housing Act (“FEHA”), Gov’t 19 Code section 12940(m) because (i) her request was not based on a legal need for an 20 accommodation, (ii) she was accommodated, and (iii) her specific request was not reasonable. See
21 Section IV(B), infra. 22 Issue No. 3: The Hospital is entitled to summary adjudication of Plaintiff’s third cause of 23 action for failure to engage in a good faith interactive process under the FEHA, Gov’t Code section 24 12940(n) because (i) she was provided with a reasonable accommodation and (ii) the Hospital 25 engaged in the interactive process. See Section IV(C), infra. 26 Issue No. 4: The Hospital is entitled to summary adjudication of Plaintiff’s fourth cause of 27 action for retaliation because (i) she cannot establish a prima facie claim or (ii) overcome the 28
DAVIS WRIGHT TREMAINE LLP 5 865 S. FIGUEROA ST, SUITE 2400 MOTION FOR SUMMARY JUDGMENT LOS ANGELES, CALIFORNIA 90017-2566 (213) 633-6800 4811-4410-8113v.1 0016924-000381 Fax: (213) 633-6899 1 evidence that her contract was not renewed for a legitimate, non-discriminatory reason unrelated to 2 her request for an accommodation. See Section IV(D), infra. 3 This Motion for Summary Judgment, or in the Alternative, Summary Adjudication of 4 Issues, is based upon this Notice; the attached Memorandum of Points and Authorities; the 5 concurrently-filed Separate Statement of Undisputed Facts; the concurrently-filed Compendium of 6 Evidence, which includes all declarations and exhibits; all pleadings and records on file; all matters 7 of which the court may take judicial notice; and upon such other evidence as may be presented in 8 advance of or at the hearing on this Motion
9 DATED: January 27, 2020 DAVIS WRIGHT TREMAINE LLP CAMILO ECHAVARRIA 10 ANNA R. BUONO 11
12 By: Anna R. Buono 13 14 Attorneys for Defendant MACK’S MEDICAL CENTER 15 16 17 18 19 20
21 22 23 24 25 26 27 28
DAVIS WRIGHT TREMAINE LLP 6 865 S. FIGUEROA ST, SUITE 2400 MOTION FOR SUMMARY JUDGMENT LOS ANGELES, CALIFORNIA 90017-2566 (213) 633-6800 4811-4410-8113v.1 0016924-000381 Fax: (213) 633-6899 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. INTRODUCTION/SUMMARY OF ARGUMENT 3 Plaintiff Jennifer Doggster (“Plaintiff”) is a diabetic traveling nurse who has been able to 4 perform the essential functions of her job at numerous hospitals for over a decade with basic 5 accommodations – that she be allowed to take an early lunch, and to address her blood sugar when 6 necessary. During the busy winter season of 2015/2016, Plaintiff was assigned by her agency on a 7 temporary basis to work the day shift (7 a.m. to 7 p.m.) in the extremely small and cramped 8 emergency room at Mack’s Medical Center (the “Hospital”). Even though the Hospital provided 9 Plaintiff the same accommodation she had received for years at prior jobs, several weeks into her 10 contract, she asked to bring her Great Dane diabetic alert dog to work with her in the emergency 11 room.1 This accommodation was not provided at Plaintiff’s previous assignments nor by the 12 hospital where Plaintiff was assigned after the Hospital. Plaintiff’s request was not needed, not 13 reasonable, and an undue hardship. 14 The Hospital did not come to this conclusion lightly. The Hospital seriously considered 15 Plaintiff’s request for an accommodation, engaged in multiple discussions about her specific 16 request, investigated areas in the emergency room for the Great Dane, spoke with physicians to 17 determine the standard of care for her condition, and considered the operational impact of bringing 18 the Great Dane into the emergency room for her 12-hour shifts, including the possible effect on 19 patients and staff. The dog’s sheer size – the dog is 165 pounds, over three feet tall at the shoulder, 20 and four feet long from nose to rear with a 42 inch chest circumference – and the allergies it could
21 create were also considered. (Indeed, when the dog visited the emergency room as part of this 22 litigation, a male patient experienced a serious allergic reaction.) After balancing the issues, the 23 Hospital ultimately determined that it could provide Plaintiff with the same accommodations her 24 previous employers provided and those which the Hospital was already providing – as many breaks 25 as she needed to check her blood sugar and correct it, early lunch, and access to patient 26
27 1 Plaintiff’s dog is trained, according to her, to “alert” to her rising or falling blood sugar levels. Ex. 1 (Deposition of Christina Plaintiff (“Plaintiff Depo.”) Vol. I) at 208:10-14. All Exhibits, 28 unless otherwise referenced, are included with the Declaration of Anna R. Buono, filed concurrently. DAVIS WRIGHT TREMAINE LLP 7 865 S. FIGUEROA ST, SUITE 2400 MOTION FOR SUMMARY JUDGMENT LOS ANGELES, CALIFORNIA 90017-2566 (213) 633-6800 4811-4410-8113v.1 0016924-000381 Fax: (213) 633-6899 1 nourishments if needed as a reasonable accommodation. The Hospital also recommended that 2 Plaintiff obtain a continuous glucose monitor (“CGM”), which is the best standard of care for type 3 1 diabetics. Plaintiff dismissed getting a CGM out-of-hand, then inexplicably did just that after 4 suing the Hospital and moving to her next assignment. 5 All of Plaintiff’s claims fail as a matter of law. The law is clear that the Disabled Persons 6 Act (“DPA”) does not apply in private areas in the hospital and in the employment context. And, 7 under the Fair Employment and Housing Act (“FEHA”), the Hospital was not required to provide 8 the specific accommodation requested by Plaintiff, but rather a reasonable accommodation that 9 permitted Plaintiff to perform the essential functions of her job. That is what the Hospital did here. 10 Finally, the Hospital did not retaliate against Plaintiff when it did not renew her contract. 11 The undisputed facts show that Plaintiff asked for a contract extension far too late (4 days before 12 her second contract ended) and, at that time, there was no need for another traveling nurse. 13 Plaintiff’s admitted plan was to sue the Hospital, finish out her assignment, and move on. And that 14 is exactly what she did. In fact, Plaintiff did not even request to extend her contract at the Hospital 15 until after she had already received the offer for her subsequent assignment – which paid more than 16 The Hospital. Under the undisputed facts and settled law, the Hospital’s Motion should be granted. 17 II. STATEMENT OF UNDISPUTED FACTS 18 A. Background Regulatory And Contractual Requirements Of The Hospital 19 The Hospital is an acute care facility accredited by the Joint Commission on Accreditation 20 of Healthcare Organizations (“JCAHO”). Statement of Undisputed Fact (“UF”) 1. It is a privately-
21 owned facility with a security-controlled environment. Id. Access restrictions are enforced by 22 security guards, as well as being regulated by locked doors and access key cards. Id. The Hospital 23 has a very small, 15-bed emergency room that, despite its cramped space and 24/7/365 operations, 24 must meet the multiple standards imposed by JCAHO, including specifications for operations that 25 dictate use of space and storage, requirements relating to conditions, temperature and air quality, as 26 well as general occupancy rules and standards, and staffing requirements, all of which is aimed at 27 28
DAVIS WRIGHT TREMAINE LLP 8 865 S. FIGUEROA ST, SUITE 2400 MOTION FOR SUMMARY JUDGMENT LOS ANGELES, CALIFORNIA 90017-2566 (213) 633-6800 4811-4410-8113v.1 0016924-000381 Fax: (213) 633-6899 1 maintaining and improving patient care.2 UF 2. 2 The emergency department is generally staffed by full-time and part-time union nurses, with 3 additional assistance from union per diem nurses. UF 3. Under the union contract, the monthly 4 schedule for nurses must be posted for shift selection approximately two months in advance for a 5 monthly schedule, and nurses select their shifts based on seniority. Id. The nurses have roughly 6 three weeks to select their preferred shifts, then the nurse manager “balances” the schedule by 7 filling in remaining shifts based on seniority and anticipated needs. Id. The Hospital must post the 8 balanced schedule at least one month in advance of its start. Id. If needed, union per diem nurses 9 can be utilized to fill open shifts. Id. 10 When staffing needs are expected to increase temporarily, the union contract allows the 11 Hospital to hire short-term non-union contract nurses. UF 4. These contract or “traveling” nurses 12 generally are subject to a 13-week contract that obligates the Hospital to pay for three shifts per 13 week (12 hours per day), whether the nurse is scheduled or not. Id. Thus, traveling nurses are 14 hired only when there is sufficient need on the schedule that cannot otherwise be met by union full- 15 time, part-time or per diem nurses. Id. Frequently, the Hospital utilizes this option to prepare for 16 the heavier winter months when the patient census of Hospital visits increases significantly, which 17 is what it did for the winter of 2015/2016. Id. 18 B. Plaintiff’s Temporary Assignment From November 16, 2015 To May 21, 2016 19 In approximately September 2015, looking ahead to the winter season, the Hospital 20 contacted its staffing agency to hire several traveling nurses, with staggered start and end dates, and
21 staggered shifts. UF 5. Plaintiff was assigned to work at the Hospital for an initial assignment of 22 13 weeks, from November 16, 2015 to February 13, 2016. UF 6. In early January 2016, Plaintiff, 23 through her agency, expressed an interest in extending the contract for another three months. The 24 Hospital agreed to extend her contract to May 21, 2016, because the heightened need for nurses 25 continued due to the later flu season that year. UF 7. 26 C. Plaintiff’s Initial Request For An Accommodation 27 2 Indeed, Plaintiff testified that the emergency department at the Hospital was the “smallest” 28 emergency room where she had ever worked, out of more than 16 prior assignments. Ex. 1 (Plaintiff Depo. Vol. I) at 133:17-134:14; 37:13-38:9; Ex. 13 [resume]. DAVIS WRIGHT TREMAINE LLP 9 865 S. FIGUEROA ST, SUITE 2400 MOTION FOR SUMMARY JUDGMENT LOS ANGELES, CALIFORNIA 90017-2566 (213) 633-6800 4811-4410-8113v.1 0016924-000381 Fax: (213) 633-6899 1 Plaintiff is a type 1 diabetic, which is a fact she would tell hospitals where she was assigned 2 during the interview process. UF 8. Before working at the Hospital, at each of her numerous prior 3 work assignments over the last 9 years, she was allowed to take an early lunch as an 4 accommodation for her diabetes. Id. At no time before working at the Hospital did Plaintiff 5 request that she be allowed to take her service dog to work as an accommodation. Id. 6 As was her custom, prior to joining the Hospital, Plaintiff informed Nurse Manager Rose 7 Cappell that she was a type 1 diabetic. UF 9. Then, after Plaintiff started working, she asked 8 several charge nurses to take the first lunch and was told it was not a problem. Id. Plaintiff admits 9 that she always was allowed to take breaks as needed to test her blood sugar or to eat. Id. 10 D. Plaintiff’s Request To Bring Her Service Dog To The Emergency Room 11 1. The Hospital Engages In The Interactive Process With Plaintiff 12 Approximately six weeks into her contract, Plaintiff asked Director of Nursing Estelle 13 Gonzalez if she could bring her service dog to work with her. Ms. Gonzalez directed her to Human 14 Resources. UF 10. Plaintiff requested that her dog come to work with her because she believed he 15 finally was adequately trained for that purpose. Id. Plaintiff then brought her request to the 16 Hospital Senior HR Strategic Partner, Gary Snuggles.3 Id. After receiving the request:
17 Mr. Snuggles sought information about the Hospital’s service animal policy, which he learned is a public access policy relating to patients (not employees) managed by the 18 risk department. UF 11.
19 Mr. Snuggles spoke with Plaintiff’s supervisors, Ms. Wang and Ms. Cappell, about the request. Id. 20 Mr. Snuggles sought information about Plaintiff’s contract, in particular because of a 21 concern that something had been missed in the process. Ex. 6 (Deposition of Gary Snuggles (“Snuggles Depo.”) Vol. I) at 108:21-112:18. 22 Mr. Snuggles’s supervisor, Wendy Smith, raised the request with the Director of 23 Clinical Process Improvement to understand if there were clinical issues to consider. Declaration of Wendy Smith (“Smith Decl.”) ¶ 4. 24 Mr. Snuggles then spoke with Plaintiff by telephone and scheduled an in-person meeting as 25 part of the interactive process. UF 12. Later that week, Mr. Snuggles met with Plaintiff, and 26 although initially startled by the unexpected presence and size of the dog, Mr. Snuggles permitted 27
28 3 Mr. Snuggles previously had never had a request for a service animal accommodation. Ex. 6 (Snuggles Depo. Vol. I) at 77:12-18; Smith Decl. ¶ 3. DAVIS WRIGHT TREMAINE LLP 10 865 S. FIGUEROA ST, SUITE 2400 MOTION FOR SUMMARY JUDGMENT LOS ANGELES, CALIFORNIA 90017-2566 (213) 633-6800 4811-4410-8113v.1 0016924-000381 Fax: (213) 633-6899 1 him into the very small “Just-In-Time” temporary office (as his office was not on the hospital 2 campus) for the meeting. UF 13; Ex. 6 (Snuggles Depo. Vol. I) at 142:11-143:4. During the 3 meeting, Plaintiff provided Mr. Snuggles with information about the dog’s training, and Mr. 4 Snuggles raised concerns about safety of patients and where the dog would be placed. Plaintiff told 5 Mr. Snuggles that the dog would be out of the hallways. Id. At the end of the meeting, Mr. 6 Snuggles told Plaintiff that he would need some time to review the paperwork4 and do some 7 research. Id. At the closing of the meeting, Mr. Snuggles stated that if Plaintiff were a patient, then 8 her service dog would be allowed to be with her. Id. 9 After the meeting, Mr. Snuggles continued the interactive process. On January 19, 2016, 10 Mr. Snuggles asked Plaintiff for current information about the dog’s training and documentation 11 that he was a medical necessity for her to have at work. UF 14. Three weeks later, Plaintiff 12 emailed a few documents to Mr. Snuggles: (i) a letter she herself wrote about the training she had 13 done with her dog that did not include any training in a hospital setting; and (ii) two doctor’s notes 14 that suggested the dog would be helpful for her to have at work. Id. In an effort to understand the 15 standard of care for a type 1 diabetic, Mr. Snuggles next contacted the diabetic educator at the 16 Hospital and both of Plaintiff’s doctors. UF 15. The educator spoke about where and when 17 Plaintiff could test her blood, and the use of a glucometer. Id. He also contacted both of her 18 doctors, neither of which had seen any change in her condition in the past six months that would 19 necessitate the need for bringing her dog to work. Id. 20 Plaintiff and her service dog then met with Mr. Snuggles, Ms. Wang and Ms. Cappell on
21 February 25, 2016 to discuss her request. UF 16. Unfortunately, the meeting ended abruptly after 22 Plaintiff insisted on recording it, a demand she sprung on them without asking (much like she had 23 surprised Mr. Snuggles with her dog at their previous meeting). Id. Mr. Snuggles and Ms. Wang 24 declined to be recorded, and Plaintiff chose to leave instead of continuing with the meeting. Id. 25 Later that day, Plaintiff sent an email apologizing for leaving and requested to meet again. 26
27 4 The information in the documents Plaintiff provided to Mr. Snuggles was not current and did not relate to the dog’s training in a hospital setting or medical need for bringing him to work with her. 28 Rather, the materials, dated from 2014, appeared to have been created for purposes of allowing her service dog in her apartment. See Ex. 2 (Plaintiff Depo. Vol. II) at 272:2-22; Exs. 19-21. DAVIS WRIGHT TREMAINE LLP 11 865 S. FIGUEROA ST, SUITE 2400 MOTION FOR SUMMARY JUDGMENT LOS ANGELES, CALIFORNIA 90017-2566 (213) 633-6800 4811-4410-8113v.1 0016924-000381 Fax: (213) 633-6899 1 UF 17. Mr. Snuggles sent her a response informing her that her request to bring her dog to the 2 emergency department was denied and explaining the multitude of reasons for that decision:
3 You and I have met to discuss your current request and have also communicated and shared information electronically. Regrettably, we cannot 4 agree to your request. Having an animal in a patient care area containing trauma and other seriously ill patients is not consistent with patient 5 health and safety. Patients may also be scared of a large dog like Dex, allergic to animals, or find his distinctive odor upsetting. In addition, our 6 Emergency Room is very cramped and busy. We often must place patients in the hallway while waiting on a room. There is no space in the Emergency 7 Department for a large dog that would not interfere with staff or patients. 8 Ex. 26 (emphasis added). Even then, Mr. Snuggles continued the interactive process with Plaintiff. 9 2. The Hospital Continues The Interactive Process With Plaintiff 10 It is undisputed that the Hospital allowed Plaintiff to address her diabetes through early 11 lunches, snacks, and breaks (UF 9). However, the only accommodation she wanted was also being 12 allowed to bring her dog to work. Ex. 2 (Plaintiff Depo. Vol. II) at 296:16-297:10. So, she sought 13 again to have a meeting with Mr. Snuggles, Ms. Wang, and Ms. Cappell, which they agreed to hold 14 on March 7, 2016. UF 18. In the meantime, Mr. Snuggles spoke to an expert in the field of 15 diabetes, endocrinologist Dr. Cooper. Dr. Cooper informed Mr. Snuggles that the standard of care 16 was the use of a continuous glucose monitor (“CGM”). Dr. Cooper explained the CGM’s use and 17 effectiveness. Id. Indeed, studies have shown that CGMs are more accurate and effective in 18 detecting changes in blood sugar than a service dog. See, e.g., Exs. 51-52. 19 Shortly thereafter, Plaintiff, her dog, Mr. Snuggles, Ms. Wang, and Ms. Cappell reconvened 20 in Ms. Wang’s office. UF 19. They discussed logistical issues related to the dog and his training.
21 They also discussed two areas where Plaintiff believed he could be placed in the emergency room, 5 22 which were the doctor’s dictation room or the back supply storage room. Id. Ms. Gonzalez 23 further expressed her concerns about the dog’s size and allergies of both patients and staff. Id. 24 Rather than focusing on responding to the multiple sheer logistical issues presented by her request, 25
26 5 In fact, neither location was large enough to accommodate her Great Dane without significant operational burdens or violating JCAHO standards. Through the entire process, the places that 27 were discussed between Plaintiff, her supervisors, and HR were: (i) one area right near the nurse’s station; (ii) doctor’s area with an L-shaped desk; and (iii) the back storage room. Ex. 2 (Plaintiff 28 Depo. Vol. II) at 323:4-325:3. Neither the Hospital nor Plaintiff believed the location near the nurse’s station was feasible. DAVIS WRIGHT TREMAINE LLP 12 865 S. FIGUEROA ST, SUITE 2400 MOTION FOR SUMMARY JUDGMENT LOS ANGELES, CALIFORNIA 90017-2566 (213) 633-6800 4811-4410-8113v.1 0016924-000381 Fax: (213) 633-6899 1 Plaintiff offered to bathe the dog every 10 days (by contrast, all therapy dogs that come to the 2 Hospital must be bathed the morning of their visit – see Ex. 33 [therapy dog policy]) and promised 3 he would not shake indoors (a promise the dog broke during the site inspection in this litigation 4 (Cappell Decl. ¶ 5)). UF 19. Finally, Mr. Snuggles mentioned that Dr. Cooper had recommended 5 the use of a CGM, which Plaintiff rejected outright. Id. After this meeting, Mr. Snuggles 6 continued his investigation to determine the appropriate accommodation for Plaintiff:
7 Mr. Snuggles contacted the Hospital’s infection control practitioner seeking guidance. 8 The Hospital’s practitioner contacted the Department of Public Health about the situation. Despite expressing a resistance to having a Great Dane in an emergency 9 department, the Public Health representative said it was a case-by-case assessment.
10 Mr. Snuggles spoke again with Dr. Cooper to try to address Plaintiff’s objections to the CGM. On Dr. Cooper’s advice, Mr. Snuggles contacted a representative from Dexcom, 11 the leading company for CGMs. She explained the improvements made to CGMs and recommended that Plaintiff should try it. (UF 20) 12
13 After undertaking these efforts, Mr. Snuggles ultimately determined that having a Great 14 Dane in the emergency department would create too great of an impact on the operations and 15 ability to conduct its business of safely caring for patients, and advised Plaintiff of this decision on 16 March 11, 2016. UF 21. Mr. Snuggles again shared with Plaintiff that the Hospital was committed 17 to providing her with any accommodation she needs except for the dog. Id. Plaintiff tried to get the 18 Hospital to reconsider on March 17th, and Mr. Snuggles responded on March 21st, indicating that 19 the Hospital was happy to continue discussing alternative accommodations other than bringing her 20 dog to work, but that the ministry had already determined that having the dog in the emergency
21 department was “neither necessary nor reasonable.” UF 22. Plaintiff never responded. Id. 22 E. Plaintiff Files Suit, And Asks For A Contract Extension Just Days Before Her Contract Is Set To Expire 23 24 Plaintiff admits that her plan was to bring a lawsuit, work through the end of her contract in 25 May, and move on to another job. UF 23. Plaintiff brought suit on April 14, 2016, and spent April 26 looking for a different assignment rather than timely seeking a renewal. Id. When she had not 27 lined up a job yet on May 9, however, she suggested to her agency that she would consider staying 28 at the Hospital if they would continue discussing permitting her to bring her dog to work with her.
DAVIS WRIGHT TREMAINE LLP 13 865 S. FIGUEROA ST, SUITE 2400 MOTION FOR SUMMARY JUDGMENT LOS ANGELES, CALIFORNIA 90017-2566 (213) 633-6800 4811-4410-8113v.1 0016924-000381 Fax: (213) 633-6899 1 Id.. Ms. Cappell then learned from one of her nurses that Plaintiff was considering asking to 2 extend, and because of the interactive process aspect, she let Mr. Snuggles and Ms. Wang know. 3 UF 24. Still, at that point, there had been no request. Id. 4 The morning of May 13, 2016 (four days before her last scheduled shift), Plaintiff received 5 an offer from Highland Hospital in Alameda at a higher rate of pay, starting approximately two 6 weeks after her contract with the Hospital ended (the timing of which depended entirely on 7 Highland’s orientation schedule). UF 25. Based on a purported concern about not yet having a job 8 (even though she had an offer that she just had to accept), Plaintiff then contacted Ms. Cappell to 9 inquire about renewing her contract. Id. The schedule, however, had already been set the month 10 before pursuant to union contract requirements, and demand was waning for the summer patient 11 census. Id. Thus, the short-term needs of the emergency room were sufficiently met by the current 12 roster of nurses, and renewing another daytime traveler at that time would not have made financial 13 sense. Id. Ms. Cappell informed Plaintiff that the Hospital would not be renewing travelers at that 14 time due to the summer patient census, which is the same response she gave to another traveler 15 seeking to renew within the same week. Id. Thirty minutes after Ms. Cappell’s email, Plaintiff 16 accepted the assignment at Highland Hospital, and then finished out her contract. Id. 17 Plaintiff went on to work as a traveling nurse at Highland Hospital for three months. 18 UF 26. She also requested to bring her service dog to work at Highland, which was not 19 accommodated. Id. Also, while working at Highland, Plaintiff chose to start using the same CGM 20 that the Hospital had proposed as an accommodation and that she rejected. Id.
21 III. LEGAL ARGUMENT
22 A. Issue No. 1: Plaintiff’s First Cause Of Action Based On Civil Code Section 54.2 Is Without Merit Because That Statute Does Not Apply Here 23 Plaintiff’s first claim is brought under the Disabled Persons Act (“DPA”), Civil Code 24 Sections 54.1 and 54.2. As explained below, the DPA – which is a public access statute – does not 25 apply in the employment context. Sections 54.1 and 54.2 of the DPA make clear that it only 26 applies to the general public and in areas where the general public is allowed: 27 Section 54.2(a). Every individual with a disability has the right to be 28 accompanied by a guide dog, signal dog, or service dog, especially trained for the purpose, in any of the places specified in Section 54.1 without being DAVIS WRIGHT TREMAINE LLP 14 865 S. FIGUEROA ST, SUITE 2400 MOTION FOR SUMMARY JUDGMENT LOS ANGELES, CALIFORNIA 90017-2566 (213) 633-6800 4811-4410-8113v.1 0016924-000381 Fax: (213) 633-6899 1 required to pay an extra charge or security deposit for the guide dog, signal dog, or service dog. 2 Section 54.1(a)(1). Individuals with disabilities shall be entitled to full and 3 equal access, as other members of the general public, to … medical facilities, including hospitals, clinics, and physicians’ offices…, and other 4 places to which the general public is invited, subject only to the conditions and limitations established by law, or state or federal regulation, and 5 applicable alike to all persons. Section 54.1(a)(3). “Full and equal access,” [as set forth in Section 6 54.1(a)(1)…] means access that meets the standards of Titles II and III of the Americans with Disabilities Act of 1990 … and federal regulations adopted 7 pursuant thereto [].6 8 Based on the plain language of the DPA, applicable cases, and the facts here, Plaintiff’s 9 claim fails in its entirety. Indeed, the Ninth Circuit has already rejected her argument. 10 First, under the plain words of the DPA, the claim fails because the emergency department 11 is not a “public” space where “the general public” “is invited.” It is one department within a 12 private facility that is highly regulated, in particular because of the prevalence of protected health 13 information, patient confidentiality, and sick and vulnerable patients. See, e.g., 45 C.F.R. 164.500 14 et seq.; UF 1. It is a security-controlled environment, with security guards and access key cards 15 restricting access to those who are licensed and paid or contracted to be there and those who are 16 there to obtain medical services. Id. Members of the “general public” cannot access the emergency 17 department without a badge or access card. Id. Specifically, they are not allowed in nursing 18 stations, office space, supply closets, or doctor dictation areas; i.e., the areas where Plaintiff wanted 19 to place her dog. Plaintiff’s claim seeks to impose “public access” rules to these areas, but the fact 20 is that they are not accessed by members of the general public, and so the DPA does not apply.
21 Second, the claim is legally without merit because the DPA does not apply in the 22 employment context. Plaintiff accessed the emergency department not as a member of the “general 23 public,” but because her employment contract permitted it. UF 28. At no time was she or her dog 24 denied “full and equal access” to the facility as a “member of the public.” Her claim is based on 25 seeking employment protections under the DPA, but the DPA expressly does not incorporate Title I 26 of the ADA, which governs the employment context. See, e.g., Cal. Civ. Code § 54.1(a)(3) 27
28 6 Key here, the DPA does not incorporate Title I of the ADA, which governs the accommodation of disabilities in employment. Bass v. County of Butte, 458 F.3d 978, 983 (9th Cir. 2006). DAVIS WRIGHT TREMAINE LLP 15 865 S. FIGUEROA ST, SUITE 2400 MOTION FOR SUMMARY JUDGMENT LOS ANGELES, CALIFORNIA 90017-2566 (213) 633-6800 4811-4410-8113v.1 0016924-000381 Fax: (213) 633-6899 1 (incorporating the public services and public accommodations provisions of Title II and III (42 2 U.S.C. §§ 12131-12189), but not the employment provisions of Title I (42 U.S.C. §§ 12111- 3 12117)). Indeed, the Ninth Circuit has already rejected Plaintiff’s arguments. 4 In Bass v. County of Butte, 458 F.3d 978 (9th Cir. 2006), the plaintiffs sought to create 5 claims under the DPA and the Unruh Act for failure to accommodate, just like Plaintiff here. 6 Examining the language of the statute and legislative history, the Court held the DPA cannot be 7 used to enforce employment protections. Id. at 982-983. The Court explained that reading 8 employment discrimination claims into the DPA (and Unruh Act) “transforms the subject-matter 9 scope” of the statute. Id. at 981. In fact, Assembly Bill 1077 and Senate Bill 1687 – which 10 amended the DPA (and Unruh Act) – also amended the FEHA, which the Court noted “would have 11 been unnecessary and anomalous” under the plaintiffs’ interpretation. Id. at 982. Furthermore, 12 such a reading “would create a significant disharmony between the Unruh Act and the DPA, on the 13 one hand, and FEHA, on the other.” Id. In particular, permitting plaintiffs to use the DPA in such 14 a manner would create an end-run around the administrative procedures required under the FEHA. 15 Id. Finding no express intent by the Legislature to expand the subject matter of the DPA, the Court 16 held that the DPA simply does not apply in the failure to accommodate context. Id. at 983. See 17 Bates v. UPS, 511 F.3d 974, 1000 (9th Cir. 2007) (following Bass); Hardin v. Wal-Mart Stores, 18 Inc., 2009 U.S. Dist. LEXIS 85525 at *8-11 (E.D. Cal. 2009) (same); see also Lopez v. County of 19 Tulare, 2012 U.S. Dist. LEXIS 1833 at *32 (E.D. Cal. 2012) (“Accordingly, Cal. Civ. Code § 54(c) 20 only incorporates those provisions of the ADA that relate to physical access to public places.”).
21 Bass is on-point. Plaintiff’s claims are based on her employer’s alleged refusal to provide a 22 reasonable accommodation under the FEHA. Thus, Civil Code Section 54.2 does not apply.
23 B. Issue No. 2: Plaintiff’s Second Cause Of Action For Failure To Accommodate Fails Because She Was Provided A Reasonable Accommodation And Her 24 Insistence To Bring Her Service Dog To Work Was An Undue Hardship 25 1. Plaintiff Received A Reasonable Accommodation 26 Plaintiff’s claim is fundamentally flawed because she received a reasonable accommodation 27 while she worked at the Hospital. That it was not the accommodation Plaintiff most desired is 28 legally irrelevant. That decision is left to the employer. To sustain a cause of action for failure to
DAVIS WRIGHT TREMAINE LLP 16 865 S. FIGUEROA ST, SUITE 2400 MOTION FOR SUMMARY JUDGMENT LOS ANGELES, CALIFORNIA 90017-2566 (213) 633-6800 4811-4410-8113v.1 0016924-000381 Fax: (213) 633-6899 1 accommodate under the FEHA, Plaintiff must establish that: (1) the Hospital knew that Plaintiff 2 had a physical disability that limited her ability to work; (2) the Hospital failed to provide 3 reasonable accommodation for Plaintiff’s physical disability; and (3) Plaintiff was able to perform 4 the essential functions of the job with reasonable accommodation. Brundage v. Hahn, 57 5 Cal.App.4th 228, 237-238 (1997); Prilliman v. United Air Lines, Inc., 53 Cal.App.4th 935, 950- 6 51 (1997). Critical here, an employer “is not obligated to choose the best accommodation or 7 the accommodation the employee seeks.” Hanson v. Lucky Stores, Inc., 74 Cal.App.4th 215, 228 8 (1999) (emphasis added). “[T]he employer need not adopt the most reasonable 9 accommodation nor must the employer accept the remedy preferred by the employee.” 10 Soldinger v. Northwest Airlines, Inc., 51 Cal.App.4th 345, 370 (1996) (emphasis added). “Any 11 reasonable accommodation is sufficient to meet an employer’s obligations.” Id. at 370 (citing 12 Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 68 (1986)). “Where the employer has already 13 reasonably accommodated the employee’s … needs, the inquiry ends.” Id. 14 Here, Plaintiff cannot dispute that for the 9 years and 16 assignments before she worked at 15 the Hospital, she performed the essential functions of her job with the accommodation of taking an 16 early lunch. UF 8. At the Hospital, she was allowed to take an early lunch, and also was allowed 17 to take breaks to check her blood sugar, take breaks to correct her blood sugar and utilize patient 18 nourishments as needed. UF 9. This accommodation was more than what Plaintiff has done to 19 manage her diabetes for more than a decade and it is the same as what she continued to do without 20 having her service dog accompany her to work. UF 8, 26. And according to both Plaintiff and her
21 doctors, she had no change in her condition causing her to request a new accommodation. UF 15. 22 Instead, she requested it solely because she believed her dog was finally sufficiently trained. UF 23 10; Ex. 1 (Plaintiff Depo. Vol. I) at 211:2-25. 24 Moreover, during the interactive process, the Hospital suggested that Plaintiff utilize a 25 CGM, which Plaintiff rejected out-of-hand at the time as being inadequate. UF 19. Then, just a 26 few months later, she chose to obtain and use a CGM while at her next assignment, which was 27 without her dog. UF 26. This was virtually an admission that obtaining a CGM as the Hospital 28 suggested would have been reasonable. See Watkins v. Ameripride Servs., 375 F.3d 821, 829 (9th
DAVIS WRIGHT TREMAINE LLP 17 865 S. FIGUEROA ST, SUITE 2400 MOTION FOR SUMMARY JUDGMENT LOS ANGELES, CALIFORNIA 90017-2566 (213) 633-6800 4811-4410-8113v.1 0016924-000381 Fax: (213) 633-6899 1 Cir. 2004) (no claim where employer shows reasonable accommodation was offered and refused). 2 For these reasons, the Hospital fulfilled its obligations to provide Plaintiff with a reasonable 3 accommodation under applicable law. 4 As further evidence that Plaintiff received an appropriate accommodation, the requested 5 accommodation to bring her Great Dane to work was a lesser accommodation than was offered by 6 the Hospital (and rejected by Plaintiff). See, e.g., Ex. 1 (Plaintiff Depo. Vol. I) at 169:9-12. As the 7 Hospital determined – after discussing the issue with various experts – the accommodations 8 provided to Plaintiff allowing her to test and address her blood sugar and the suggested use of a 9 CGM met the standard of care for a type 1 diabetic. UF 18. Stated differently, this accommodation 10 was the best accommodation available to Plaintiff. Id. 11 Studies on diabetic alert dogs support this basic conclusion. In one study examining the 12 reliability of trained dogs to alert to hypoglycemia in type 1 diabetics, the dog users reported 13 satisfaction and confidence in their dog’s abilities, but the detection rates demonstrated that timely 14 and accurate alerts occurred in only 12% of all hypoglycemia events. On the other hand, where the 15 event was accurately detected, in users tracked both by a dog and a CGM, the CGM alerted prior to 16 the dog in 73% of events. See Evan A. Los, M.D. et al., “Reliability of Trained Dogs to Alert to 17 Hypoglycemia in Patients With Type 1 Diabetes,” Journal of Diabetes Science and Technology 1-7 18 (2016), attached as Ex. 51 to the Buono Decl. 19 Another study indicated an overall accuracy rate for alert dogs of just 54%, but with 20 significant ranges indicating a highly variable diabetic alert dog performance. By contrast, CGMs
21 are much more accurate. Even Plaintiff admitted that her dog is only about 50% accurate for 22 nighttime alerts, which is the entire reason she required a Great Dane for a service dog in the first 23 place. Ex. 2 (Plaintiff Depo. Vol. II) at 255:6-12; Ex. 3 (Plaintiff Depo. Vol. III) at 474:22-475:18. 24 “Taken together, the results across all participants do not support the belief that [diabetic alert 25 dogs] are more accurate than diabetes technology.” (emphasis added.) See Linda A. Gonder- 26 Frederick, PhD, et al., “Variability of Diabetes Alert Dog Accuracy in a Real-World Setting,” 27 Journal of Diabetes Science and Technology 1-6 (2017), attached as Ex. 52 to the Buono Decl. 28 These studies were undertaken with controls and proximity between owner and service dog
DAVIS WRIGHT TREMAINE LLP 18 865 S. FIGUEROA ST, SUITE 2400 MOTION FOR SUMMARY JUDGMENT LOS ANGELES, CALIFORNIA 90017-2566 (213) 633-6800 4811-4410-8113v.1 0016924-000381 Fax: (213) 633-6899 1 for purposes of alerting, and still the dogs did not reliably perform. Here, in contrast, Plaintiff was 2 asking to have her dog far away, through walls and doors (some leaded), even on separate HVAC 3 systems, among other diabetics and other hospital smells, fluids and sounds, alerting her by pushing 4 a button, and yet claimed it would be more reliable than the accommodations provided and 5 suggested to her. Plaintiff’s belief that her dog is better than any other accommodation is simply 6 that: a subjective belief. The accommodations provided and suggested were sufficient to allow her 7 to perform the essential functions of her job, and they are objectively more effective than the 8 purported accommodation she wanted. Thus, no claim exists for failure to accommodate. Watkins, 9 375 F.3d at 829 (no claim where employer shows reasonable accommodation was offered and 10 refused); see also Jensen v. Wells Fargo Bank, 85 Cal. App. 4th 245, 263 (2000) (same).
11 2. Plaintiff’s Request To Bring Her Dog To Work Was Not Reasonable And Posed An Undue Hardship 12
13 Plaintiff request to bring her Great Dane to the Hospital’s very small emergency department 14 independently fails because it was not reasonable and posed an undue hardship. An employer must 15 make reasonable accommodation for the known disability of an employee unless the employer 16 would face undue hardship in doing so. Spitzer v. Good Guys, 80 Cal.App.4th 1376, 1383 (2000). 17 Thus, “an employer is liable under [FEHA] for failing to accommodate an employee only if the 18 work environment could have been modified or adjusted in a manner that would have 19 enabled the employee to perform the essential functions of the job.” Nadaf-Rahrov v. Neiman 20 Marcus Group, Inc., 166 Cal.App.4th 952, 975-976 (2008) (emphasis added). As the U.S.
21 Supreme Court in Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977), held, an “undue 22 hardship” is any accommodation that results in anything more than a de minimis cost to an 23 employer. Id. at 84. And, “[o]bviously, an employer does not act in bad faith when it does not 24 attempt an accommodation it sincerely believes would cause it undue hardship.” EEOC v. Townley 25 Eng’g, Mfg., Co., 859 F.2d 610, 615 (9th Cir. 1988).7 26
27 7 It is black letter law that there can be no liability so long as the employer’s reasons for the employment action are honestly believed and non-discriminatory on their face, even if the reasons 28 were “foolish or trivial or baseless.” Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1063 (9th Cir. 2002) (quoting Johnson v. Nordstrom, Inc., 260 F.3d 727, 733 (7th Cir. 2001); see also Beale DAVIS WRIGHT TREMAINE LLP 19 865 S. FIGUEROA ST, SUITE 2400 MOTION FOR SUMMARY JUDGMENT LOS ANGELES, CALIFORNIA 90017-2566 (213) 633-6800 4811-4410-8113v.1 0016924-000381 Fax: (213) 633-6899 1 Here, having the Great Dane at the Hospital’s very small emergency department simply did 2 not work. The dog is 165 pounds, over three feet tall at the shoulder, and four feet long from nose 3 to rear with a 42 inch chest circumference. UF 13. Through the entire process, the places that were 4 discussed between Plaintiff, her supervisors, and HR were: (i) one area right near the nurse’s 5 station; (ii) doctor’s area with an L-shaped desk; and (iii) the back storage room. Ex. 2 (Plaintiff 6 Depo. Vol II) at 323:4-325:3. None of these areas is appropriate. The storage room contained 7 sterile supplies such that a dog would not be allowed in that area by code. See, e.g., Ex. 37 [Mar. 8 11 letter]. The area right near the nurse’s station simply was too small and crowded for a Great 9 Dane, and not out of the patient care area. Ex. 1 (Plaintiff Depo. Vol. I) at 144:6-12; Ex. 2 10 (Plaintiff Depo. Vol. II) at 323:4-324:23; Ex. 6 (Snuggles Depo. Vol. I) at 213:2-7. Even Plaintiff 11 understood that the storage rooms and nurses stations were not workable, so in the interactive 12 process, she gave up on those spaces and focused on the doctor’s dictation room. See, e.g., Ex. 12 13 (First Amended Complaint) ¶ 45; Ex. 38 [Mar. 17 letter]. 14 But the doctor’s dictation room also was not reasonable. That room is small and cramped. 15 Cappell Decl. ¶ 4. It is set up for six doctors, nurses and schedulers at computer stations, and it has 16 a fire door that is supposed to remain closed. Id. The ventilation is subpar, particularly with the 17 door closed, so the space includes large floor fans to try to cool it down. Id. Putting the dog in that 18 room would always block at least one work station, which would prevent a caregiver from 19 providing patient care. See, e.g., Ex. 54 [photos from July 18 inspection]. In addition, between the 20 heat, small quarters and large surface area of the dog and its kennel, the result would be a sizeable
21 odor and circulation of fur and dander. Cappell Decl. ¶ 4. One of the emergency room doctors is 22 allergic to dogs, which would entirely preclude him from using that room to conduct his work. Id. 23 That is simply not reasonable. 24 In addition to logistic considerations, there was the substantial risk of patients having 25 allergic reactions, a concern that was raised several times to Plaintiff. Ex. 2 (Plaintiff Depo. Vol. 26 II) at 266:5-9; 307:16-309:4; Exs. 26, 32. As it turned out, this concern was well-founded. 27 Plaintiff “inspected” the emergency room with her dog for purposes of taking photographs for this
28 v. GTE California, 999 F.Supp. 1312, 1322 (C.D. Cal. 1996) (“It is not for the courts to analyze the wisdom of business decisions as long as there is no showing of discriminatory motive.”). DAVIS WRIGHT TREMAINE LLP 20 865 S. FIGUEROA ST, SUITE 2400 MOTION FOR SUMMARY JUDGMENT LOS ANGELES, CALIFORNIA 90017-2566 (213) 633-6800 4811-4410-8113v.1 0016924-000381 Fax: (213) 633-6899 1 litigation, which included bringing the dog into the emergency room and having him stay in a soft- 2 sided canvas kennel at various locations in the Hospital. Cappell Decl. ¶ 5. Shortly after Plaintiff 3 and her dog left the Hospital, a patient presented with hydration issues, and he was placed in room 4 number 17 in the back of the emergency room, an area adjacent to where the dog had spent 5 considerable time. Cappell Decl. ¶ 6. Within about an hour after the patient entered the emergency 6 room, he began having an allergic reaction, with all of his extremities turning red and swelling with 7 hives. Id. ¶ 7-9, Ex. 55. It turns out he was highly allergic to dogs, and cannot be anywhere near 8 them. Id. ¶ 8. Antihistamine treatment was provided to him, but his reaction was significant and 9 compromised his recovery. Id. ¶ 8. Fortunately, he was conscious and able to note the reaction and 10 communicate his allergies to the staff so that the reaction could be remedied, but that may not 11 always be the case. It was not reasonable to ask the Hospital to risk patient safety, particularly 12 when it was already providing Plaintiff the same accommodations she received at numerous 13 previous assignments. 14 At bottom, the undisputed evidence is clear that having Plaintiff’s dog in the emergency 15 department for 3 days per week, 12 hours a day, was an undue hardship and, thus, not reasonable. 16 The Hospital was more than justified in making its business decision to deny Plaintiff’s request.
17 C. Issue No. 3: Plaintiff’s Cause Of Action For Failure To Engage In The Interactive Process Fails Because She Was Accommodated And, Regardless, 18 The Hospital Engaged In A Lengthy Interactive Process 19 Plaintiff’s third cause of action under Gov’t Code section 12940(n) for failure to engage in a 20 good faith interactive process fails both because she was actually provided a reasonable
21 accommodation and because the Hospital engaged in an extensive “informal process with the 22 employee . . ., to attempt to identify a reasonable accommodation that will enable the employee to 23 perform the job effectively.” Wilson v. County of Orange, 169 Cal.App.4th 1185, 1195 (2009) 24 (citation omitted). “‘[T]he interactive process requires communication and good-faith exploration 25 of possible accommodations between employers and individual employees’ with the goal of 26 ‘identify[ing] an accommodation that allows the employee to perform the job effectively.’” Nadaf- 27 Rahrov, 166 Cal.App.4th at 984 (citation omitted). That it was ultimately decided in the interactive 28 process that the Hospital could not allow Plaintiff’s preferred accommodation does not somehow
DAVIS WRIGHT TREMAINE LLP 21 865 S. FIGUEROA ST, SUITE 2400 MOTION FOR SUMMARY JUDGMENT LOS ANGELES, CALIFORNIA 90017-2566 (213) 633-6800 4811-4410-8113v.1 0016924-000381 Fax: (213) 633-6899 1 mean that there was no interactive process as Plaintiff alleges. 2 It is established California law that an employer is not liable for failing to engage in the 3 interactive process when the employee was in fact provided a reasonable accommodation. 4 See Wilson, 169 Cal.App.4th at 1195 (holding employer cannot be held liable for failing to engage 5 when employee was offered or provided a reasonable accommodation); Hanson v. Lucky Stores, 6 Inc., 74 Cal.App.4th 215, 229 (1999) (“We see no reason why this employer should be subjected to 7 liability for failing to engage in the interactive process where the employee was reasonably 8 accommodated”). Here, the claim fails because Plaintiff received a reasonable accommodation – 9 one that worked for her at all other locations for the past decade, and one that continued to work for 10 her in post-The Hospital assignments. UF 8, 21, 26. With the breaks and early lunch that Plaintiff 11 was granted, she was fully able to perform the essential functions of her job. 12 Regardless, the Hospital clearly engaged in the interactive process. Once Plaintiff made the 13 Hospital aware of her request, the Hospital took numerous steps to engage in the interactive 14 process. The Hospital formally met with Plaintiff three times, exchanged emails, reviewed 15 documentation, investigated potential areas, and even conducted research on Plaintiff’s medical 16 condition. UF 10-22. The Hospital expects that Plaintiff will argue that all of these meetings and 17 actions were done in bad faith; not so. 18 Regarding the first meeting, Plaintiff prematurely started this process before she had any 19 current and necessary information for Mr. Snuggles to consider. UF 13; Ex. 6 (Snuggles Depo. 20 Vol. I) at 161:3-165:18; Ex. 2 (Plaintiff Depo. Vol. II) at 274:24-275:12. Her first approach was to
21 blindside him, showing up with her Great Dane without letting him know in advance, shocking a 22 seated Mr. Snuggles who was face-to-face with a large animal he was not expecting. UF 13. 23 Despite this tactic, he allowed the dog to stay for the meeting and discussed Plaintiff’s request with 24 her. Id. He then reviewed the outdated materials she provided, determined they were not helpful, 25 and asked her for documents detailing the dog’s training and updated medical information. UF 14. 26 It took three weeks for Plaintiff to provide new documents. Id. 27 By this point in time, in addition to meeting with Plaintiff, Mr. Snuggles had taken 28 significant steps and substantial time in considering Plaintiff’s request. Mr. Snuggles reviewed and
DAVIS WRIGHT TREMAINE LLP 22 865 S. FIGUEROA ST, SUITE 2400 MOTION FOR SUMMARY JUDGMENT LOS ANGELES, CALIFORNIA 90017-2566 (213) 633-6800 4811-4410-8113v.1 0016924-000381 Fax: (213) 633-6899 1 assessed Plaintiff’s documents, spoke with supervisors, spoke with the placement agency, reviewed 2 the Hospital’s service animal policy, involved the Director of Clinical Process Improvement to 3 understand the clinical issues, and contacted the diabetic educator at the Hospital as well as both of 4 Plaintiff’s doctors. UF 11, 15, Smith Decl. ¶ 4. 5 At the second meeting, Plaintiff again blindsided Mr. Snuggles (and others) by showing up 6 to the meeting and recording it without seeking consent. UF 16. When consent was not given, she 7 left in a huff without providing any further information, despite Mr. Snuggles’s attempts to get her 8 to stay. Id. 9 Based on everything known to them and due to Plaintiff’s abrupt departure at the second 10 meeting, the Hospital denied Plaintiff’s request. UF 17. But then Plaintiff asked for 11 reconsideration and another meeting, and the Hospital agreed. UF 18. So, in continuing the 12 interactive process, Mr. Snuggles spoke with a diabetes expert, Dr. Cooper, about the standard of 13 care and the use of a CGM. Id. 14 Then, the Hospital again met with Plaintiff to discuss all aspects of her request. UF 19. 15 And, after that meeting, Mr. Snuggles still continued to obtain more information. UF 20. This 16 time, he coordinated inquiries to the Department of Public Health, spoke again to Dr. Cooper 17 regarding Plaintiff’s objections to the CGM, and directly contacted the CGM company’s 18 representative. Id. 19 It was only after all of these actions were taken that the final decision to deny Plaintiff’s 20 request was made. These extensive efforts constitute engagement in the interactive process such
21 that Plaintiff’s claim necessarily fails. Wilson, 169 Cal.App.4th at 1195 (informal interactive 22 process satisfies employer’s responsibilities); Tannlund-McCoy v. Golden Gate Bridge, Highway & 23 Transp. Dist., 2003 U.S. Dist. LEXIS 13619, *23-26 (N.D. Cal. 2003) (same).
24 D. Issue No. 4: Plaintiff’s Retaliation Claim Fails Because She Cannot Overcome The Hospital’s Non-Retaliatory Reason For Not Renewing Her Contract. 25
26 To establish a retaliation claim, Plaintiff must show that the Hospital subjected her to an 27 adverse employment action because of conduct protected by the FEHA. Cal. Gov’t Code 28 § 12940(h); Iwekaogwu v. City of Los Angeles, 75 Cal.App.4th 803, 814 (1999). Stated differently,
DAVIS WRIGHT TREMAINE LLP 23 865 S. FIGUEROA ST, SUITE 2400 MOTION FOR SUMMARY JUDGMENT LOS ANGELES, CALIFORNIA 90017-2566 (213) 633-6800 4811-4410-8113v.1 0016924-000381 Fax: (213) 633-6899 1 Plaintiff must show that her contract would have been renewed “but for” her protected activity. 2 Gen. Dynamics Corp. v. Superior Court, 7 Cal.4th 1164, 1191 (1994) (plaintiff “bears the burden 3 of establishing . . . that the employer’s conduct was motivated by impermissible considerations 4 under a ‘but for’ standard of causation”); Reeves v. Safeway Stores, Inc., 121 Cal.App.4th 95, 108 5 (2004) (ultimate issue “is whether retaliatory animus was a but-for cause of the employer’s adverse 6 action”). Applicable case law is clear that speculation and assumptions are insufficient to sustain a 7 claim for retaliation. McRae v. Dep’t of Corr. & Rehab., 142 Cal.App.4th 377, 388-390 (2006). 8 Chen v. County of Orange, 96 Cal.App.4th 926, 931 (2002), is instructive. There, the court 9 rejected a retaliation claim based on a failure to promote, explaining that “[m]ere sequence is not 10 enough – that would be the classic logical fallacy of ‘post hoc ergo prompter hoc’ (after the fact, 11 therefore because of the fact). In this case, [plaintiff] showed nothing but sequence in a context 12 where there were obviously good and legitimate reasons not to promote her . . . .” Id. (emphasis 13 added). The court explained the difficult position in which an employer might find itself when it 14 wants to terminate an employee who previously complained about workplace activity, and the 15 reason that courts therefore have required substantial evidence of causation: “the possibility of a 16 retaliation claim creates the problem of conferring de facto immunity on the complainant despite 17 poor job performance or the meritlessness of any complaint.” Id. at 948; see also Franklin v. 18 Dynamic Details, Inc., 116 Cal.App.4th 375, 393-94 (2004) (rejecting plaintiff’s attempt to 19 establish a causal nexus based on temporal sequence). 20 That same sequencing argument is all Plaintiff has here. She cannot point to any admissible
21 evidence suggesting that her contract would have been renewed but for the fact that she requested 22 an accommodation. To begin with, she was a temporary contract worker whose contract ended by 23 its own terms. UF 6-7, 25. Plaintiff herself explained at deposition that traveler contracts are used 24 only when there is a short term need: “So if you have a short-term need, you put the traveler in 25 it. When the need goes away, the contract – you know, if you still have the need, you can re- 26 sign them. It’s only if the hospital and the nurse wants the job.” Ex. 1 (Plaintiff Depo. Vol. I) at 27 50:6-22 (emphasis added). Tellingly, every traveler position Plaintiff has ever held has been 28 shorter than or the same length as the time she spent at the Hospital. Id. at 49:14-24; Ex. 13.
DAVIS WRIGHT TREMAINE LLP 24 865 S. FIGUEROA ST, SUITE 2400 MOTION FOR SUMMARY JUDGMENT LOS ANGELES, CALIFORNIA 90017-2566 (213) 633-6800 4811-4410-8113v.1 0016924-000381 Fax: (213) 633-6899 1 Here, it is undisputed that the Hospital’s needs and schedules were set well before Plaintiff 2 ever requested a contract extension. The emergency department schedules are created at least two 3 months in advance, and must be balanced and posted one month in advance for a full month. UF 3. 4 At that time, however, Plaintiff expressly rejected the idea of renewing her contract and sought 5 work elsewhere. UF 23. It was not until four days before her last shift, and many weeks after the 6 summer schedule had been created, that Plaintiff requested to extend her contract. UF 25. By that 7 time, due to seasonal patient census fluctuations, the Hospital did not have the need for her 8 services; the minimal need at that time for traveling nurses had already been filled by other 9 travelers whose contracts had already been renewed well before Plaintiff even indicated an interest 10 in staying.8 E.g., Ex. 2 (Plaintiff Depo. Vol. II) at 370:3-372:11. For these reasons, Plaintiff’s 11 contract was not extended for legitimate business reasons. 12 Finally, because the Hospital demonstrated a legitimate, nondiscriminatory reason for not 13 renewing Plaintiff’s contract, Plaintiff is required to proffer “substantial, responsive evidence” that 14 the real reason for the non-renewal was retaliatory. Hersant v. Dep’t of Social Services, 57 15 Cal.App.4th 997, 1004 (1997). That is, Plaintiff could avoid summary judgment only by showing 16 such “weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions” in the 17 Hospital’s asserted reasons that a reasonable fact finder could rationally find them “unworthy of 18 credence.” Sandell v. Taylor-Listug, Inc., 188 Cal.App.4th 297, 314 (2010). It is well-established 19 that a plaintiff’s “feeling” of discrimination is insufficient to create a genuine issue on summary 20 judgment. See, e.g. Cucuzza v. City of Santa Clara, 104 Cal.App.4th 1031, 1045-46 (2002)
21 (summary judgment affirmed where plaintiff failed to offer any “substantial responsive evidence” 22 that “personal opinions” related to hiring decision); Hersant, 57 Cal.App.4th at 1009 (summary 23 judgment affirmed where allegations that “harassment” and “ill treatment” of plaintiff was due to 24 plaintiff’s age was “simply speculation”). But a “feeling” is precisely the basis of her retaliation 25 claim: 26 Q: Do you believe that your contract was not extended at Tarzana 27 8 Notably, Plaintiff testified that, due to her diabetes, she could only work the day shift. 28 Ex. 1 (Plaintiff Depo. Vol. I) at 45:7-46:6.
DAVIS WRIGHT TREMAINE LLP 25 865 S. FIGUEROA ST, SUITE 2400 MOTION FOR SUMMARY JUDGMENT LOS ANGELES, CALIFORNIA 90017-2566 (213) 633-6800 4811-4410-8113v.1 0016924-000381 Fax: (213) 633-6899 1 because of your request to bring Dex to the ER? 2 A: I do. Q: Why do you believe that? 3 A: I believe that because from the very beginning, from the first time 4 that I walked into Gary’s office on the very first – for the very first meeting in January and his – “I do not want that dog in my office,” 5 and just the hostility that was between him – with him and I in the meeting. It was – it appeared to me that he had an unwillingness to 6 learn, unwillingness to want to understand, and -- Ex. 2 (Plaintiff Depo., Vol. II) at 386:14-387:1. Plaintiff’s entire claim is based on her “feeling” 7 about how Mr. Snuggles (who does not make staffing decisions in any case) reacted when she 8 caught him completely off guard months before. The fact is that she did not want to renew her 9 contract at the time schedules were made, and her belated and contrived request was contingent in 10 any case. There is no evidence, much less anything substantial, that the decision not to renew her 11 contract was based on anything other than need. The Motion should be granted. 12 IV. CONCLUSION 13 The undisputed facts – supported by overwhelming evidence – establish that Plaintiff was 14 provided with a reasonable accommodation that allowed her to perform the essential functions of 15 her job, and she performed them well. Her request to bring her dog with her to work was not 16 necessary, nor was it reasonable under the circumstances of her assignment in the emergency 17 department. Despite no change in her health or medical need for an additional or different 18 accommodation, the Hospital went above and beyond to try to find additional ways to help 19 Plaintiff, but it could not find a way to balance the Hospital’s regulatory, staffing, and patient 20 concerns with her desire to have her dog at work with her. The undisputed facts likewise 21 demonstrate that her strategic request to renew her contract came too late, and did not make 22 financial sense for the Hospital. Accordingly, the Hospital is entitled to summary judgment on all 23 claims. 24 DATED: January 27, 2020 DAVIS WRIGHT TREMAINE LLP 25 CAMILO ECHAVARRIA ANNA R. BUONO 26
27 By: Anna Buono 28
DAVIS WRIGHT TREMAINE LLP 26 865 S. FIGUEROA ST, SUITE 2400 MOTION FOR SUMMARY JUDGMENT LOS ANGELES, CALIFORNIA 90017-2566 (213) 633-6800 4811-4410-8113v.1 0016924-000381 Fax: (213) 633-6899 1 Attorneys for Defendant MACK’S MEDICAL CENTER 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20
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DAVIS WRIGHT TREMAINE LLP 27 865 S. FIGUEROA ST, SUITE 2400 MOTION FOR SUMMARY JUDGMENT LOS ANGELES, CALIFORNIA 90017-2566 (213) 633-6800 4811-4410-8113v.1 0016924-000381 Fax: (213) 633-6899