Litigation lurks

Peter Verbrugge

In 2006, the companies received letters from the U.S. Equal Employment Opportunity Commission (EEOC) stating that some of the Thai workers claimed they’d been discriminated against because of their national origin while working in Yakima.

The EEOC asked Valley Fruit to settle for $9.7 million and Green Acres Orchard for $21 million.

“They sent us a one-page letter saying, ‘We believe you did all these things, we have evidence you did these things, and we would be willing to conciliate,’” recalled Peter Verbrugge, a partner with Valley Fruit.

The EEOC also demanded that the companies rehire the workers, which Verbrugge said they could not legally do as the workers had come into the United States under the H-2A program and they did not have a clearance order to bring them back.

The growers declined to settle, and in 2011 the EEOC sued. Verbrugge said the EEOC’s original function was to conciliate labor disputes so the courts were not overwhelmed with cases, but it is now initiating lawsuits itself.

The EEOC failed to give growers details of the charges filed against them and, in fact, notes of EEOC interviews with several workers that were presented to the court indicated that the workers were not discriminated against and were treated the same as the Mexicans they worked with.

Judge Edward Shea, of the U.S. District Court for Eastern Washington, dismissed all claims against the Yakima growers, describing the allegations as baseless, unreasonable, and frivolous.

In a final ruling in March this year, he ordered the EEOC to pay the growers’ attorneys’ fees, expenses, and costs, which Verbrugge said reinforced how egregious the EEOC had been in pursuing the case.

Judge Shea found that the EEOC failed to conduct a reasonable and diligent investigation and conciliate in good faith before filing the lawsuit. It failed to provide basic information about its allegations to the growers’ attorneys, Stokes Lawrence of Yakima, and failed to adequately describe the purported discrimination. The EEOC had refused to examine documents the growers offered to share.

The judge’s order only addresses claims brought against the growers and not Global Horizons, which went out of business several years ago.
Legal quagmire

Though it was a great relief to win the case after all these years, Verbrugge doubts that it will deter the EEOC from taking legal action in the future. He described the H-2A program as a “legal quagmire.”

“I think, no matter what we do, there’s going to be attorneys looking at growers and looking for any ‘i’ not dotted and ‘t’ not crossed to go after them,” he said. “The EEOC is aggressively going after companies in the Northwest in the tree fruit industry. We have a perception problem with the public and with the EEOC that we really need to somehow address and show we’re trying to do things the right way in terms of housing and treating our workers.

“We know we’re doing the right thing, but we need to get that message out,” he added. “There are government agencies that don’t know that. They’re trying to justify their job and their funding. They have to show they’re winning the big cases and winning money.”

When the company hired the Thai workers through Global Horizons, the tree fruit industry was not very familiar with the H-2A program. Workers that Global supplied were employed and paid by Global, not the orchardists.

Valley Fruit is still employing H-2A workers, but hires them through the Washington Farm Labor Association’s program.

“What’s different is, those employees are ours,” Verbrugge said. “WAFLA’s just helping us in recruiting, and they’re our responsibility after that. Now we have the experience in H-2A, we know what to do and have the housing and transportation, and clearance orders, and all those things.”
But, he added, “No matter what you do, there’s the potential for litigation. It’s the politics of the environment we’re in right now.”

Justo Gonzalez, attorney with Stokes Lawrence, said the EEOC’s sparse investigation and minimal efforts to cooperate with the growers before filing suit were fully documented, which increased the likelihood of a court agreeing that the case was frivolous.

“This ruling represents a potent dose of accountability for the EEOC and a reminder for employers about the importance of engaging with the EEOC during the pre-lawsuit investigation and conciliation process,” he added.

A spokeswoman for the EEOC said her agency was reviewing Judge Shea’s ruling and did not have an immediate comment. •

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Read our previous story “Judge blisters EEOC for “frivolous” case against growers” and the full text of Judge Shea’s ruling (PDF).