Alfaro-Huitron v. Cervantes Agribusiness

982 F.3d 1242

Esteban ALFARO-HUITRON; Eleazar Garcia-Mata; Jose Antonio Garcia-Mata; Juan Guzman; Raul Jasso-Cerda; Enrique Rojas-Torres; Lazaro Rojas-Torres; Trinidad Santoyo-Garcia; Pedro Tamez, Plaintiffs - Appellants,

v.CERVANTES AGRIBUSINESS ; Cervantes Enterprises, Inc., Defendants - Appellees.

No. 19-2091

United States Court of Appeals, Tenth Circuit.

FILED December 11, 2020

Jerome Wesevich, Texas RioGrande Legal Aid, El Paso, Texas (Chris Benoit, Texas RioGrande Legal Aid, El Paso, Texas, on the briefs) for Plaintiffs-Appellants.

Joseph Cervantes, Las Cruces, New Mexico (L. Helen Bennett, P.C., Albuquerque, New Mexico on the briefs) for Defendants-Appellees.

Before TYMKOVICH, Chief Judge, EBEL, and HARTZ, Circuit Judges.

HARTZ, Circuit Judge.

Plaintiffs–Appellants are United States citizens or lawful permanent residents who work as farm laborers. Defendants–Appellees Cervantes Agribusiness and Cervantes Enterprises, Inc. (collectively, Cervantes) are agricultural businesses owned and managed by members of the Cervantes family in southern New Mexico. Plaintiffs brought claims against Cervantes for breach of contract, civil conspiracy, and violations of the Migrant and Seasonal Agricultural Worker Protection Act (AWPA), 29 U.S.C. §§ 1801 – 72, based on Cervantes's failure to employ them after a labor contractor, allegedly acting on Cervantes's behalf, recruited them under the H-2A work-visa program of the United States Department of Labor (DOL). The district court granted summary judgment in favor of Cervantes on all claims. Exercising jurisdiction under 28 U.S.C. § 1291, we reverse the district court's ruling on the breach-of-contract and AWPA claims because the evidence taken in the light most favorable to Plaintiffs is sufficient to support a finding that the contractor was acting as Cervantes's agent when it recruited them. But we affirm the summary judgment in favor of Cervantes on the conspiracy claim because of the lack of evidence of an agreement between Cervantes and the contractor to engage in unlawful acts.

I. BACKGROUND

A. Dealings Between the Parties

In September 2011 Dino Cervantes, managing vice president of Cervantes Enterprises and general manager of Cervantes Agribusiness, signed a one-page "Agreement of Outsourcing Support" with labor contractor WKI Outsourcing Solutions, LLC (WKI). Aplt. App., Vol. 1 at 67.¹ The Agreement stated that it was "for services as a work force provider. The work force consists of skilled farm labor workers; U.S. Citizens, legal residents, or foreign workers with temporary working visas (H-2A)." Id. The Agreement was to be "effective from [November 10, 2011] and ending [March 9, 2012], for the following crops: Processing & Packing: Dry Red Chile & Other Spices"; and WKI agreed to "provide 15 farm workers on a daily basis for the length of this agreement." Id. Also in September, WKI entered into materially identical agreements with representatives of three other farm operators and packing companies in southern New Mexico.

The president of WKI, Jaime Campos, had promoted his company to Cervantes and other agricultural businesses as a legal source of foreign labor through the H-2A work-visa program. He believed that farmers were suffering from a lack of reliable labor in the United States and that the H-2A visa program could solve that problem by bringing workers into the country from Mexico. One of the farmers who entered into an agreement with WKI, Ronnie Franzoy, testified at his deposition that he wanted all his labor to come from Mexico partly because he thought Mexican laborers were the most dependable. Mr. Cervantes was also interested in obtaining foreign workers: He testified at his deposition that there would be no reason for him to use WKI's services if WKI were not bringing in foreign workers.

The H-2A visa program established by the Immigration and Nationality Act of 1952, as amended by the Immigration Reform and Control Act of 1986, allows domestic employers to hire nonimmigrant foreign workers for agricultural labor on a temporary or seasonal basis. See Mendoza v. Perez , 754 F.3d 1002, 1007 (D.C. Cir. 2014). To obtain permission to hire workers under the program, an employer must establish that it faces a shortage of qualified United States workers and that the employment of foreign labor will not adversely affect the wages and working conditions of similarly employed United States agricultural workers. See 8 U.S.C. §§ 1101(a)(15)(H)(ii)(a), 1188(a)(1). The program is administered by the DOL, which has promulgated regulations for that purpose. See 20 C.F.R. § 655.0 ; see also Mendoza , 754 F.3d at 1008 (summarizing various DOL regulations). As we explained in Llacua v. Western Range Association , 930 F.3d 1161, 1169 (10th Cir. 2019), "The H-2A program allows for issuance of visas to foreign workers to fill agricultural positions employers cannot fill through the domestic labor market." Because the DOL has a "statutory duty to protect American workers," its regulations require employers to "first offer the job to workers in the United States." Id. (citing 20 C.F.R. § 655.121 ). "Furthermore, the employer must offer domestic workers ‘no less than the same benefits, wages, and working conditions that the employer is offering, intends to offer, or will provide to H-2A workers.’ " Id. at 1169–70 (quoting 20 C.F.R. § 655.122(a) ). The DOL requires employers to offer at least the highest of the federal or state minimum wage, the prevailing hourly or piece rate, or the adverse-effect wage rate (AEWR) that the DOL sets on a state-by-state basis. See 20 C.F.R. §§ 655.120(a), 655.122(l) ; see also id. § 655.103(b) (defining AEWR). The AEWR is calculated under a formula that is intended to ensure that foreign agricultural workers do not undercut domestic wages or adversely affect working conditions of similarly situated domestic employees. See N.C. Growers’ Ass'n, Inc. v. United Farm Workers , 702 F.3d 755, 759 (4th Cir. 2012).

When a labor contractor such as WKI seeks to bring foreign laborers into the country through the H-2A visa program, it must submit, among other required documents, "[c]opies of the fully-executed work contracts with each fixed-site agricultural business" to which the contractor expects to provide H-2A workers. 20 C.F.R. § 655.132(b)(4). Dino Cervantes testified that he knew when he executed the Agreement that WKI would use the Agreement as part of the H-2A application process and that Cervantes would need to pay the AEWR to H-2A workers.

WKI applied for H-2A certification from the DOL in September 2011. As part of this process Mr. Campos submitted under penalty of perjury an Application for Temporary Employment Certification, see 20 C.F.R. § 655.130, which stated, among other things, that to the best of his knowledge: (a) "[a]t this time, there are not sufficient workers who are able, willing, or available at the time and place needed to perform the farm labor and services required by ... farmers [of certain seasonal crops]," Aplt. App., Vol. 3 at 477; (b) workers would be paid the AEWR wage of $9.71 per hour (more than both New Mexico's minimum hourly wage ($7.50) and the federal minimum hourly wage ($7.25) at the time); and (c) qualified United States workers would have priority in hiring, in compliance with federal regulations on the subject, see, e.g. , 20 C.F.R. §§ 655.122(a), 655.135(c), 655.156(a). As attachments to the Application form, WKI submitted a list of the anticipated worksites for the H-2A workers, as required by 20 C.F.R. § 655.132(b)(1), and the one-page Agreements of Outsourcing Support that it entered into with growers such as Cervantes, as required by 20 C.F.R. § 655.132(b)(4). WKI also submitted the required job order (commonly referred to as a "clearance order," see Arriaga v. Fla. Pac. Farms, L.L.C. , 305 F.3d 1228, 1233 n.5 (11th Cir. 2002) ), which contained necessary information on the number of workers required, the anticipated work to be performed, the worksites, and the terms of employment. See 20 C.F.R. §§ 655.121, 655.122(c) ; see also id. §§ 653.501(c)(1)(iv), (c)(3)(viii).

On November 4, after WKI had corrected a number of deficiencies in its H-2A application, the DOL accepted WKI's application for processing. Because WKI was required to make employment available to United States workers first, see Llacua , 930 F.3d at 1169, it began working with the relevant state workforce agencies, including the Texas Workforce Commission (TWC), to recruit United States workers for the available positions described in the clearance order. On November 11, WKI wrote to the DOL to update the agency on its recruitment efforts and to ask for immediate processing of its application because of "the emergency situation and the upcoming agricultural season." Aplt. App., Vol. 3 at 516. On November 14 the DOL notified WKI that its application had been partially certified.

During the recruitment period numerous United States workers expressed interest in WKI's job listings; a person who had worked for TWC for some 40 years testified that she could not remember ever seeing another H-2A application that resulted in so many referrals of qualified United States workers. WKI hired Plaintiffs, all of whom were "United States workers" under the H-2A regulations. See 20 C.F.R. § 655.103(b). Because WKI did not draw up separate written work contracts for each Plaintiff, "the required terms of the [clearance] order and the certified Application for Temporary Employment Certification" became their work contracts. 20 C.F.R. § 655.122(q).

At some point in November 2011, however, Mr. Campos called Cervantes and "talked to somebody on the farm," leaving a message for Dino Cervantes that the other farms were terminating their work agreements and that WKI "wouldn't do anything against him" if he likewise "had to terminate" the Agreement. Aplt. App., Vol. 2 at 392. In the same vein, on November 22 WKI sent an "EMERGENCY REQUEST" to the DOL seeking...