Fierro Cordero v. Stemilt AG Services LLC

5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON MARGARITO FIERRO CORDERO, FERNANDO MENDEZ FRANCO, NO. 2:22-CV-0013-TOR JOSE RODRIGUEZ LLERENAS, SANDRO VARGAS LEYVA, ORDER DENYING PLAINTIFFS’ OCTAVIO GOMEZ GARCIA, MOTION FOR PARTIAL VICTOR PADILLA PLASCENCIA, SUMMARY JUDGMENT JOSE MENDOZA ANGUIANO, FERNANDO MARTINEZ PEREZ, JOSE GALLEGOS GONZALEZ, HECTOR BAUTISTA SALINAS, BISMARK ZEPEDA PEREZ, GILBERTO GOMEZ GARCIA, and JONATHAN GOMEZ RIVERA, 14 Plaintiffs, 15 v. STEMILT AG SERVICES, LLC, 17 Defendant.

18 BEFORE THE COURT is Plaintiffs’ Motion for Partial Summary Judgment (ECF No. 134). This matter was submitted for consideration without oral argument. The Court has reviewed the files and record herein, and is fully informed. For the reasons, discussed below, Plaintiff’s Motion is denied.

3 BACKGROUND 4 This case concerns H-2A farm workers who were employed by Stemilt in Washington. On January 27, 2022, Plaintiffs filed this case, alleging individual claims not included in the companion class-action, Garcia et al. v. Stemilt Ag Services, LLC, (“Stemilt I”), 2:20-cv-00254-TOR. See ECF No. 1. On April 25, 2023, the Court consolidated the two cases. ECF No. 132. On May 5, 2023, Plaintiffs filed the present motion for partial summary judgment on Count Five for breach of contract. ECF No. 134. Except where noted, the following facts are not in dispute.

12 On July 5, 207, the United States Department of Labor (DOL) notified Stemilt that it accepted its proposed H-2A apple harvest contract that covered a three-month period between August 14, 2017 and November 17, 2017. ECF No. 135 at 8, ¶¶ 46–47. The contract states in relevant part: 16 Workers must work at a sustained pace and make bona-fide efforts to work efficiently and consistently that are reasonable under the 17 climatic and all other working conditions … 18 [Stemilt] may discipline and/or terminate the Worker for lawful job- related reasons: (a) malingers or otherwise refuses without justified 19 cause to perform as directed the work for which the worker was recruited and hired….

1 If the Worker is consistently unable to perform their duties in a timely and proficient manner consistent with applicable industry standards, 2 considering all factors, they will be provided training in accordance with Employer’s progressive discipline standards, including verbal 3 instruction, written warnings, time off, or other coaching or instruction to teach the Worker to work more efficiently. If 4 performance does not improve after coaching and several warnings, the Worker may be terminated. These standards are not linked to any 5 specific productivity measure and apply equally to if the Worker is working on an hourly and/or piece rate basis.

2:20-cv-0254-TOR, ECF No. 68-2 at 15, 20.

The contract did not contain language requiring workers to pick a specific number of bins of apples each day nor require that workers would be subject to disciplinary action, including termination, for failure to meet a production standard. ECF No. 135 at 9, ¶¶ 48, 53.

On September 19, 2017, a Stemilt employee “asked everyone to comment about getting production up and more bins picked per person” at a management meeting. Id. at 11, ¶ 65. Defendant disputes this based on hearsay and if considered, must be read in the context that the managers “need ideas for an incentive program.” ECF No. 143 at 26, ¶ 65. The meeting notes comment that “[i]t’s mostly H-2A workers that are picking slow.” ECF No. 135 at 12, ¶ 66.

Defendant disputes this based on hearsay and if considered, must be read in the context: Juan commented that these new workers lack experience and are not 20 giving any effort. He is very frustrated. The workers still get paid an hourly rate and they flat out don’t care. We need to take action soon.

1 Chuck (sic) said they are working with and training the employees to try to change standards and have seen little improvement. It’s going 2 okay but there is just no effort. They are locked into the minimum rate. Mark asked if we’d thought about giving a production bonus to 3 for the week for the pickers with the highest production. Robin said they have a couple ideas. The one he likes best is rewarding the 4 whole crew.

ECF No. 143 at 26, ¶ 66.

On September 22, 2017, Mr. Graham sent out an email to all area managers that required “all employees who have completed the training period [to] be producing a minimum average of 3 bins in an 8hr shift.” ECF No. 135 at 14, ¶ 80.

The email further stated: “If employees do not fulfill this requirement they should be receiving a progressive disciplinary action due to not following the supervisor’s instructions, rather than low production.” Id., ¶ 82.

After this 3-bin policy was implemented, warnings began “flooding in” from Stemilt’s orchards. Id. at 16, ¶ 96. Defendant disputes this, stating that the rate of discipline did not change before or after September 22, 2017: 322 disciplinary notices issued the first 31 days of harvest and 355 issued in the 40 days after September 22, 2017. ECF No. 143 at 42, ¶ 96.

At least 12 different warnings were issued at the JVO orchard for failure to meet production standards between September 22 and the end of the apple harvest.

ECF No. 135 at 17, ¶ 100. Defendant disputes this, asserting that warnings were given for a variety of reasons, including the failure to follow the supervisor’s instructions, not performing the work as instructed, failure to perform the work that was requested in the correct time, and unsatisfactory work / mistakes due to carelessness where the productivity box is not even checked. ECF No. 143 at 46, ¶ 100.

5 At least 39 different production warnings were issued by supervisors at Ice Harbor to H-2A workers following the three-bin policy. ECF No. 135 at 18, ¶ 106.

7 Defendant disputes this, asserting that warnings were given for a variety of reasons, including the failure to accomplish the work requested, failure to keep up with the standards of the rest of the team for refusing to obey the instructions issued by a supervisor, and failure to comply with production. ECF No. 143 at 50, ¶ 106.

12 In November 2017, the picking rate had doubled with an average rate of 5–7 bins. Id. at 19–20, ¶ 114. Defendant disputes this to the extent it implies that this was solely the result of the 3 bins requirement where Stemilt employed a variety of measures to increase the pace of harvest, including training and piece rate incentives. ECF No. 143 at 54, ¶ 114.

17 DISCUSSION 18 I. Summary Judgment Standard 19 The Court may grant summary judgment in favor of a moving party who demonstrates “that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In ruling on a motion for summary judgment, the court must only consider admissible evidence. Orr v. Bank of America, NT & SA, 285 F.3d 764 (9th Cir. 2002). The party moving for summary judgment bears the initial burden of showing the absence of any genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 6 317, 323 (1986). The burden then shifts to the non-moving party to identify specific facts showing there is a genuine issue of material fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). “The mere existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Id. at 252.

11 For purposes of summary judgment, a fact is “material” if it might affect the outcome of the suit under the governing law. Id. at 248. Further, a dispute is “genuine” only where the evidence is such that a reasonable jury could find in favor of the non-moving party. Id. The Court views the facts, and all rational inferences therefrom, in the light most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 378 (2007). Summary judgment will thus be granted “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322.

1 II. Breach of Contract 2 Plaintiffs move for partial summary judgment on the ground that Stemilt imposed production standards in violation of their H-2A contracts. ECF No. 134.

4 Defendant contends the three bin rule was “simply a tool to either help the poor performers improve, or otherwise emphasize for those workers that they had their own affirmative obligations under the contract.” ECF No. 142 at 6–7.

7 Under the H-2A visa program, job orders contain material terms and conditions of employment for H-2A workers. 20 C.F.R. § 655.103(b). In the absence of a separate written contract, “the work contract at a minimum will be the terms of the job order and any obligations required under 8 U.S.C. § 1188, 29 CFR part 501, or this subpart.” Id. As a result, employees have contract rights under H- 2A job orders. See Rivera v. Peri & Sons Farms, Inc., 735 F.3d 892, 900 (9th Cir. 2013).

14 For breach of contract, a plaintiff must demonstrate the existence of a valid contract, the defendant breached a duty imposed by the contract, and the breach proximately caused damages. Univ. of Washington v. Gov’t Emp. Ins. Co., 700 17 Wash. App. 455, 467 (2017). A breach is material if it “substantially defeats a primary function of the contract.” Top Line Builders, Inc. v. Bovenkamp, 179 19 Wash. App. 794, 808 (2014) (citation omitted). “The materiality of a breach is a question of fact.” Id. l Here, the parties do not dispute the existence of a valid contract. The H-2A 2|| contracts set forth the material terms and conditions of Plaintiffs’ employment.

See Garcia, 2:20-cv-00254-TOR, ECF No. 68-2. While the contract states that 4|| “[w]orkers must work at a sustained pace and make bona-fide efforts to work 5|| efficiently and consistently’, the discipline “standards are not linked to any 6|| specific productivity measure.” Jd. at 15,20. The Court finds that these are material terms of the contract. However, there are disputed issues of fact whether material breaches and damages occurred. See ECF These factual issues are 9|| appropriate for a jury.

10|} ACCORDINGLY, IT IS SO ORDERED.

11 Plaintiffs’ Motion for Partial Summary Judgment (ECF No. 134) is 12 DENIED.

13 The District Court Executive is directed to enter this Order and furnish copies to counsel.

15 DATED July 31, 2023.

aa Hear Of Cet 17 ne Xe THOMAS O. RICE <> United States District Judge ORDER DENYING PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY