Federal Judge Throws Out Discrimination Complaint Against Six Hawaii Farms
BY MALIA ZIMMERMAN - U.S. District Judge David Ezra dismissed a complaint today filed by the U.S. Equal Employment Opportunity Commission on April 20, 2011, against six Hawaii farms, saying the government agency that is charged with prohibiting employment discrimination has not been specific enough in its allegations. He gave the agency's Los Angeles-based attorneys 45 days to refile its lawsuit and one more chance to get their filing right.
The Hawaii farms named in the complaint, including Captain Cook Coffee Company, Del Monte Fresh Produce, Kauai Coffee Company, Kelena Farms, MacFarms of Hawaii, and Maui Pineapple Farms, all contracted with the Los Angeles-based Global Horizons Manpower Company between 2003 and 2007, to bring in workers from Thailand to work on their farms.
Six Global Horizons employees were indicted criminally in September 2010, including its president, three executives and two Thai labor contractors, in what justice officials said was the biggest human-trafficking case ever brought by federal authorities. On January 14, a 10-count superseding indictment charged two other people in Los Angeles, Joseph Knoller and Bruce Schwartz, as co-conspirators. Three people have pled guilty in federal court.
The EEOC, which also is targeting Global in this complaint, contends “Global Horizons engaged in a pattern or practice of national origin and race discrimination, harassment, and retaliation, when it trafficked over 200 Thai male victims to farms in Hawaii and Washington where they were subjected to severe abuse.”
The EEOC claims the farms “not only ignored abuses, but also participated in the obvious mistreatment, intimidation, harassment, and unequal pay of the Thai workers.” Each defendant could pay between $50,000 and $300,000 per Thai worker on their farm.
Global Horizons CEO Mordechai “Motty” Yosef Orian has repeatedly told Hawaii Reporter that the lawsuit and accusations are “all nonsense," but no one showed up to represent Global in court today.
Michael Green was listed as the defense attorney for Global, but since no attorney was present to speak on Global's behalf, the judge could not dismiss it the case against the company.
In a separate motion, EEOC Senior Attorney Sue Noh also asked the judge to "stay" or delay the EEOC's civil case against the farm owners until after the Global criminal trial in November, so that the defendant could not use the EEOC civil proceedings for discovery of evidence in its case.
The judge denied her request.
What Noh did not say is that the U.S. Attorney's office had actually filed a request with the court just yesterday to delay the criminal case against Global for up to a year, citing unanticipated delays because of new counsel has been assigned to the case and there is extensive information to review.
While attorneys for the farms did not have a chance to speak today, some had earlier issued a response to the EEOC's allegations.
Christopher J. Benjamin, head of agribusiness for Alexander & Baldwin, which owns Kauai Coffee Company, said the company is disappointed that “the EEOC continues to include our company in their claims against Global Horizons, Inc., despite years of our cooperation with their investigation against Global and without any evidence of wrongdoing by Kauai Coffee Company, Inc. We find the EEOC’s release announcing this lawsuit sensationalized and not based on facts relating to Kauai Coffee’s actions.”
He said the company has never been informed by any of the workers from Thailand, any governmental authority, or anyone else, that the Thai workers experienced any mistreatment while at Kauai Coffee.
“We both cooperated with the Federal government’s investigation, and conducted our own investigation. Our investigation confirmed a strongly positive working relationship between the Thai workers and Kauai Coffee employees. We made multiple requests of the EEOC to identify specific acts of wrongdoing and have not received any information. Therefore, we will vigorously defend Kauai Coffee Company in this lawsuit, which is built on long-unsubstantiated claims relating to Thai workers provided by Global Horizons during the 2004 and 2005 coffee harvest season.”
Benjamin explained that under its contract with Global Horizons, they paid the company for each worker a wage rate, established by the U.S. Department of Labor, and an administrative fee for Global, so Global was responsible for paying the workers.
He said the housing they provided to the Thai workers, which was in walking distance to the headquarters, was inspected by OSHA and certified as meeting the government-required living conditions/standards and regulations.
And the Thai workers had no restrictions outside of work hours, Benjamin said. “They were free to come and go and to interact with our Kauai Coffee employees. They had access to all of Kauai Coffee lands, including reservoirs and the ocean, which they used for recreational purposes. Additionally, transportation was available to other locations on the island.”
A strong relationship led to two of the Thai workers, formerly employed by Global Horizons, to be hired directly by Kauai Coffee, Benjamin said.
The Captain Cook Coffee Company issued a statement saying it is disappointed by the EEOC’s decision to include Captain Cook as a defendant in its recently filed complaint. "Captain Cook cooperated completely in the EEOC’s investigation and provided the EEOC with all requested records, allowed EEOC to inspect its farms, processing facilities, and worker housing, and interview Captain Cook employees."
"Captain Cook housing was in no way inadequate, having been approved by the state of Hawaii, Department of Labor, before any Global Horizon workers came to Captain Cook and the workers were allowed to come and go as they pleased.
"Despite repeated requests, the EEOC has refused to identify any act by Captain Cook with respect to Global Horizon employees that was in any way discriminatory, retaliatory or otherwise improper. The EEOC has similarly refused to explain why it believes Captain Cook was aware of any mistreatment of the workers by Global Horizons. The complaint filed this week again offers no factual basis for any of the allegations against Captain Cook.
"Captain Cook valued its positive relationship with the Global Horizons employees and provided them with a safe, fair and respectful working environment. None of the Global Horizons employees reported to Captain Cook that they were being subjected to harassment or retaliation. If the allegations against Global Horizons are eventually proved to be true, then Captain Cook believes appropriate action should be taken to protect and compensate any individuals who were mistreated.
"We feel confident that when all facts are known, they will demonstrate that Captain Cook did not mistreat the Global Horizons employees in any way, was unaware of any mistreatment by Global Horizons, and the allegations against Captain Cook will be dismissed. Captain Cook will not comment further on the lawsuit at this time due to the ongoing litigation."
Clare Hanusz, a Hawaii immigration attorney who represents with her law partner Melissa Vincenty an estimated 100 Thai laborers, has been critical of the EEOC's handling of the case.
She said she was shocked when she was at the EEOC press conference in April, and its lawyers listed her clients’ names in the lawsuit. She said neither she, nor her clients who are Thai farm workers, were told that they would be included – or warned they would be named.
“Human traffickers involved in this case are still at large in Thailand, and by naming them, their families are vulnerable,” Hanusz told the EEOC attorneys at their April 20 press conference.
“I was shocked to see my client’s name in the EEOC complaint,” Hanusz told Hawaii Reporter in a follow up interview. “All of the workers had huge amount of debt, and while some have it paid off, some have not and are still in danger of losing their land. In some cases, there are loan sharks involved, the husband is not in Thailand to protect his family, and protection for the families is not the same that exist in U.S.”
Calling the disclosure “reckless” and “disturbing” Hanusz said her clients should have been consulted, or the EEOC should have just used their initials. Private attorneys representing the workers also should have been notified that the lawsuit was being filed.
“In one of our cases, there was a serious threat to the wife and children because of the debt and they had to relocate.”
Hanusz said she is happy that the EEOC is advocating for the workers to try to recoup some of the money they lost, but she questioned why the lawsuit took so many years to be filed.
“The EEOC had these cases for years and declined to take action until now. People came forward to the EEOC years ago and there were assurances that something would be done to help them. People spent a lot of time on these filings, and stuck their neck out when they were most vulnerable. But there was no follow up for four years … and all of a sudden came this lawsuit.”
She isn't the only one who is critical of the EEOC. Judge Ezra today came down hard on EEOC attorneys, alleging that their complaint against the farms was sloppy. He also was critical of the agency's request for an extension until the criminal case is tried.