Equal Employment Opportunity Commission v. Global Horizons, Inc. et al

Filing 685

ORDER GRANTING PLAINTIFFS: MOTION FOR PARTIAL SUMMARY JUDGMENT ON THE EEOC'S PATTERN OR PRACTICE CLAIM OF HOSTILE WORK ENVIRONMENT AGAINST DEFENDANT GLOBAL HORIZONS, INC.; MOTION FOR PARTIAL SUMMARY JUDGMENT ON THE EEOC'S PATTERN OR PRACTIC E CLAIM OF DISPARATE TREATMENT AGAINST GLOBAL HORIZONS, INC.; AND MOTION FOR PARTIAL SUMMARY JUDGMENT ON THE EEOC'S PATTERN OR PRACTICE CLAIM OF RETALIATION AGAINST GLOBAL HORIZONS, INC. re 606 re 610 re 616 . Signed by JUDGE LESL IE E. KOBAYASHI on 03/19/2014. (eps, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
)
)
)
)
Plaintiff,
)
)
)
vs.
)
)
GLOBAL HORIZONS, INC., DBA
)
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 NKA MF NUT CO.,
LLC; MAUI PINEAPPLE COMPANY, )
)
LTD. AKA MAUI PINEAPPLE
)
FARMS; ALEXANDER & BALDWIN,
)
INC.; MASSIMO ZANETTI
BEVERAGE USA, INC.; AND DOES )
)
1-15, INCLUSIVE,
)
)
Defendants.
____________________________ )
UNITED STATES EQUAL
EMPLOYMENT OPPORTUNITY
COMMISSION,

CIVIL 11-00257 LEK

ORDER GRANTING PLAINTIFF’S: MOTION FOR PARTIAL SUMMARY JUDGMENT
ON THE EEOC’S PATTERN OR PRACTICE CLAIM OF HOSTILE WORK
ENVIRONMENT AGAINST DEFENDANT GLOBAL HORIZONS, INC.; MOTION FOR
PARTIAL SUMMARY JUDGMENT ON THE EEOC’S PATTERN OR PRACTICE CLAIM
OF DISPARATE TREATMENT AGAINST GLOBAL HORIZONS, INC.; AND
MOTION FOR PARTIAL SUMMARY JUDGMENT ON THE EEOC’S PATTERN
OR PRACTICE CLAIM OF RETALIATION AGAINST GLOBAL HORIZONS, INC.
Before the Court are Plaintiff Equal Employment
Opportunity Commission’s (“the EEOC” or “Plaintiff”): Motion for
Partial Summary Judgment on the EEOC’s Pattern or Practice Claim
of Hostile Work Environment Against Defendant Global Horizons,

Inc.,1 (“Hostile Work Environment Motion”) filed on
November 1, 2013; [dkt. nos. 606-07;] the EEOC’s Motion for
Partial Summary Judgment on the EEOC’s Pattern or Practice Claim
of Disparate Treatment Against Global Horizons, Inc. (“Disparate
Treatment Motion”), filed on November 1, 2013; [dkt. nos. 610,
612;] and the EEOC’s Motion for Partial Summary Judgment on the
EEOC’s Pattern or Practice Claim of Retaliation Against Global
Horizons, Inc. (“Retaliation Motion”), filed on November 1, 2013
[dkt. nos. 616, 618].2
EEOC’s motions.3

Global Horizons did not respond to the

On December 6, 2013, the EEOC filed a

consolidated reply as to all four of its motions, emphasizing
Global Horizons’s failure to respond.

[Dkt. no. 659.]

1

This Court will refer to Defendant Global Horizons, Inc.
d/b/a Global Horizons Manpower Inc. as “Global Horizons.”
2

This Court will refer to the Hostile Work Environment
Motion, the Disparate Treatment Motion, and the Retaliation
Motion collectively as the “Merits Motions.” The EEOC also filed
a Motion for Partial Summary Judgment on Global Horizons’s
Affirmative Defenses (“Affirmative Defenses Motion”) on
November 1, 2013. [Dkt. nos. 594-95.] On February 28, 2014,
this Court issued an order that, inter alia, granted the
Affirmative Defenses Motion in part and denied it in part
(“2/28/14 Order”). [Dkt. no. 628.] This Court also issued a
second order on February 28, 2014 which addressed the EEOC’s
motions related to its claims against Defendant Maui Pineapple
Company, Ltd., [dkt. no. 638,] but those motions and that order
are not relevant to the Merits Motions currently before this
Court.
3

On November 18, 2013, Defendant Kelena Farms, Inc. filed a
statement of no position as to each of the Merits Motions. [Dkt.
nos. 654, 656-57.]
2

The Court finds these matters suitable for disposition
without a hearing pursuant to Rule LR7.2(d) of the Local Rules of
Practice of the United States District Court for the District of
Hawai`i (“Local Rules”).

After careful consideration of the

motions and the relevant legal authority, the EEOC’s Hostile Work
Environment Motion, the EEOC’s Disparate Treatment Motion, and
the EEOC’s Retaliation Motion are HEREBY GRANTED, for the reasons
set forth below.
BACKGROUND
This Court set out the general background of this case
in the 2/28/14 Order, and will only address the allegations that
are relevant to the motions currently before it.
The motions currently before this Court address the
EEOC’s claims against Global Horizons for pattern or practice of
discriminatory treatment based on national origin, retaliation,
and/or constructive discharge, in violation of 42 U.S.C.
§§ 2000e-2(a), 2000e-3(a) (“Count I”).

[Third Amended Complaint,

filed 6/4/12 (dkt. no. 263), at ¶¶ 622-26, 642-44.]
alleges, in pertinent part:

3

Count I

623. At all times relevant to this action,
the Claimants[4] were employed by Global
[Horizons].
624. Since 2003, Global [Horizons] supplied
the Claimants to work at one or more farms owned
and operated by the Farm Defendants.
625. Since 2003, Global [Horizons] engaged in
a pattern or practice of unlawful discriminatory
employment practices at its facilities in Los
Angeles and Beverly Hills, California and at the
Farm Defendants’ farms located in Oahu, Maui, and,
Kauai, and Hawaii in violation of §§ 703(a) and
704(a) of Title VII, 42 U.S.C. § 2000e-2(a) by
discriminating against the Claimants with respect
to the terms and conditions of their employment
because of their Asian race and/or Thai national
origin; subjecting the Claimants to harassment and
hostile work environment because of their Asian
race and/or Thai national origin; retaliating
against employees for engaging in protected
activity including but not limited to opposing
and/or complaining about the discriminatory terms
and conditions of employment, harassment, and/or
hostile work environment; and/or constructively
discharged the Claimants by subjecting them to
intolerable working conditions and/or terms and
conditions of employment.
626. Global [Horizons]’s pattern and/or
practice of discriminatory treatment includes,
without limitation, harassment, hostile work
environment, disparate treatment, constructive
discharge, and retaliation against employees for
engaging in protected activity including but not
limited to opposing and/or complaining about the

4

“The Claimants” refers to “Marut Kongpia, Nookrai
Matwiset, Jakarin Phookhiew, Mongkol Bootpasa, Janporn Suradanai,
Suthat Promnonsri, Itthi Oa-Sot, and the class of Thai and/or
Asian individuals . . . who were adversely affected by” the
discrimination and retaliation at issue in this case. [Third
Amended Complaint at § I.]
4

discriminatory terms and conditions of employment,
harassment, and/or hostile work environment.
[Id. at ¶¶ 623-26.]
The EEOC served three sets of requests for admissions
(“RFA”) on Global Horizons, but Global Horizons neither answered
nor objected to any of the three sets of RFA.

[Decl. of Sue Noh

in Supp. of Pltf. EEOC’s Motions for Partial Summary Judgment
Against Global Horizons, Inc. Re: Pattern or Practice of
Disparate Treatment, Hostile Environment & Retaliation, filed
11/1/13 (dkt. no. 628) (“Noh Decl.”),5 at ¶¶ 1-2; id., Exh. 1
(RFA Set 1 (Nos. 1-709)); id., Exh. 2 (RFA Set 2 (Nos. 7101210)).]

The EEOC argues that, pursuant to Fed. R. Civ. P.

36(a)(3), the matters in the RFA sets are deemed admitted as a
matter of law.
The EEOC further argues that, based on the undisputed
facts of this case, it is entitled to summary judgment as to the
pattern and practice claims of hostile work environment,
disparate treatment, and retaliation in Count I.

This Court

notes that, insofar as the EEOC’s Merits Motions all rely on
pattern and practice allegations, this Court does not construe
the Merits Motions as addressing the other counts in the Third
Amended Complaint.

5

The exhibits to the Noh Declaration are contained in
docket numbers 628-631.
5

DISCUSSION
I.

Admission of Material Facts
At the outset, this Court notes that Global Horizons

failed to respond either to the EEOC’s Merits Motions or the
EEOC’s concise statements of fact in support of the Merits
Motions (collectively “Merits CSOFs”).6

Local Rule 56.1(g)

states: “For purposes of a motion for summary judgment, material
facts set forth in the moving party’s concise statement will be
deemed admitted unless controverted by a separate concise
statement of the opposing party.”

Thus, this Court HEREBY DEEMS

ADMITTED all of the statements of fact set forth in the EEOC’s
Merits CSOFs.
II.

Standard for Pattern and Practice Claims
In ruling on Global Horizons’s motion to dismiss the

Third Amended Complaint, United States District Judge
David Alan Ezra, described some of the requirements for Count I:
In order to establish a pattern or practice
of discriminatory treatment in violation of Title
6

The Merits CSOFs consist of: the EEOC’s Concise Statement
of Material Facts in Support of Its Motion for Partial Summary
Judgment Against Global Horizons Re: Hostile Work Environment
(“Hostile Work Environment CSOF”); the EEOC’s Concise Statement
of Material Facts in Support of Its Motion for Partial Summary
Judgment on the EEOC’s Pattern or Practice Disparate Treatment
Claim Against Global Horizons (“Disparate Treatment CSOF”); and
the EEOC’s Concise Statement of Material Facts in Support of Its
Motion for Partial Summary Judgment on the EEOC’s Pattern or
Practice Retaliation Claim Against Global Horizons (“Retaliation
CSOF”), all of which the EEOC filed on November 1, 2013. [Dkt.
nos. 608, 613, 619.]
6

VII, a plaintiff must show “‘more than the mere
occurrence of isolated or accidental or sporadic
discriminatory acts.’” Obrey v. Johnson, 400 F.3d
691, 694 (9th Cir. 2005) (quoting Int’l Bhd. of
Teamsters v. United States, 431 U.S. 324, 336, 97
S. Ct. 1843, 52 L. Ed. 2d 396 (1977)). Plaintiff
must show that the discrimination was the
defendant’s “‘standard operating procedure—the
regular rather than the unusual practice.’” Id.
(quoting Teamsters, 431 U.S. at 336, 97 S. Ct.
1843).
EEOC v. Global Horizons, Inc., 904 F. Supp. 2d 1074, 1085 (D.
Hawai`i 2012) (“11/8/12 Order”).

In Teamsters, the United States

Supreme Court stated:
At the initial, “liability” stage of a
pattern-or-practice suit the Government 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. Its
burden is to establish a prima facie case that
such a policy existed. The burden then shifts to
the employer to defeat the prima facie showing of
a pattern or practice by demonstrating that the
Government’s proof is either inaccurate or
insignificant. An employer might show, for
example, that the claimed discriminatory pattern
is a product of pre-Act hiring rather than
unlawful post-Act discrimination, or that during
the period it is alleged to have pursued a
discriminatory policy it made too few employment
decisions to justify the inference that it had
engaged in a regular practice of discrimination.
431 U.S. at 360 (footnote omitted).
III. Hostile Work Environment
In the related context of a claim alleging hostile work
environment based on gender, the Ninth Circuit has stated:
A plaintiff may establish a sex hostile work
environment claim by showing that he was subjected
to verbal or physical harassment that was sexual
7

in nature, that the harassment was unwelcome and
that the harassment was sufficiently severe or
pervasive to alter the conditions of the
plaintiff’s employment and create an abusive work
environment. A plaintiff must establish that the
conduct at issue was both objectively and
subjectively offensive: he must show that a
reasonable person would find the work environment
to be “hostile or abusive,” and that he in fact
did perceive it to be so. Faragher v. City of
Boca Raton, 524 U.S. 775, 787, 118 S. Ct. 2275,
141 L. Ed. 2d 662 (1998). . . .
Dawson v. Entek Int’l, 630 F.3d 928, 937-38 (9th Cir. 2011) (some
citations omitted).

Applying this analysis in the instant case,

the EEOC must establish that: the Claimants were subjected to
verbal or physical harassment that was based on their race or
national origin; the harassment was objectively and subjectively
offensive; the harassment was unwelcome; and the harassment was
sufficiently severe or pervasive to alter the conditions of the
Claimants’ employment.
“When harassment by a supervisor is at issue, an
employer is vicariously liable, subject to a potential
affirmative defense.”

Id. at 939 (citing Nichols v. Azteca Rest.

Enter., Inc., 256 F.3d 864, 877 (9th Cir. 2001) (citing Faragher
v. City of Boca Raton, 524 U.S. 775, 780, 118 S. Ct. 2275, 141 L.
Ed. 2d 662 (1998))).
An employer is vicariously liable for actions by a
supervisor who has “immediate (or successively
higher) authority over the employee.” Faragher,
524 U.S. at 807, 118 S. Ct. 2275. This
distinction “is not dependent upon job titles or
formal structures within the workplace, but rather
upon whether a supervisor has the authority to
8

demand obedience from an employee.” McGinest [v.
GTE Serv. Corp.], 360 F.3d [1103,] 1119 n.13 [(9th
Cir. 2004)].
Id. at 940.

Nichols sets forth the two-pronged analysis for an

employer’s affirmative defense to a claim of a hostile work
environment created by a supervisor.

256 F.3d at 877.

This

Court will not address the Nichols analysis because, insofar as
Global Horizons did not respond to the Hostile Work Environment
Motion, Global Horizons has not identified any genuine issue of
material fact as to any affirmative defenses to its liability for
the actions of Claimants’ supervisors.

See Fed. R. Civ. P. 56(a)

(“The court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”).
In the instant case, Global Horizons has admitted that
Sam Wongsesanit (Global Horizons’s field supervisor),
Shane Germann (Global Horizons’s regional manager), and
Joseph Knoller (Global Horizons’s vice president) physically
abused some of the Claimants.
1-2.7]

[Hostile Work Environment CSOF at

Wongsesanit and Germann “supervised Claimants” and “had

immediate authority to discharge, discipline, and control work
schedule, wages, and housing.”

[Id. at 1.]

7

The EEOC did not number each item in the Hostile Work
Environment CSOF. This Court’s citations to the Hostile Work
Environment CSOF therefore refer to the document’s page numbers.
9

The following are examples of incidents that Global
Horizons has admitted occurred:
•In 2004 at the 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. at 2; Noh Decl., Exh. 24
(Decl. of Anucha Homphet)8 at ¶¶ 18-19.]
•Wongsesanit broke the sunglasses off Claimant Prakran Radchai’s
face when Radchai forgot to bring his protective eyewear to
work. [Hostile Work Environment CSOF at 2; Noh Decl., Exh.
16 (Decl. of Prakran Radchai) at ¶ 18.]
•In 2004 at Maui Pineapple, Wongsesanit grabbed one of the
Claimants by the shirt and threw him against a wall.
[Hostile Work Environment CSOF at 2.]
•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. at
2-3.]
•Wongsesanit grabbed some of the Claimants by the throat during
meetings, punched some of the Claimants in the face, pushed
a Claimant who inquired about the lack of work hours, and
hit a Claimant with a stick to make him work faster. [Id.
at 3.]

8

The Claimants’ original declarations are written in Thai,
see, e.g., Noh Decl., Exh. 24 at 12-17. Supachai Prasertphong
translated the Thai declarations into English and submitted
declarations attesting to the accuracy and truthfulness of the
translations. See id. at 2-4. Thus, each of the pertinent
exhibits to the Noh Declaration consist of Prasertphong’s
declaration, the English translation of the Claimant’s
declaration, and the Claimant’s original Thai declaration. The
Court’s citations to the Claimants’ declarations refer to the
English translations. See id. at 5-11.
10

Global Horizons also admitted that its supervisors routinely
verbally harassed Claimants.9

For example, Knoller told

Claimants that anyone who ran away would be shot, deported, or
arrested.

Wongsesanit threatened Claimants with physical abuse

and deportation.

[Id. at 3-4.]

Wongsesanit, Pranee Tubchumpol

(Global Horizons’s director of international relations),10 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 1, 4.]

In addition,
•“Global [Horizons’s] supervisors kept Claimants confined,
restricted their movements and contact with the outside
world even prohibiting Thai newspapers, and imposing
curfews, bedtimes, and security guards.” [Id. at 4.]
•“Global [Horizons] denied the required food, housing, and
transportation to Claimants thereby worsening the hostile
work environment because these failures left Claimants
malnourished and fearful for their personal safety.” [Id.]
•“Claimants who fainted in the fields from exhaustion and
malnutrition, were injured, or became ill were denied
medical care and threatened with deportation or transfers to
farms with less or harsher work.” [Id. at 5.]

9

The EEOC submitted testimony that Wongsesanit “verbal[ly]
abuse[d]” Thai workers by calling them “animals.” [Noh Decl.,
Exh. 3 (Decl. of Amnuay Phiansing) at ¶ 14.]
10

Tubchumpol interviewed Claimants in Thailand and was one
of their supervisors in the United States. [Hostile Work
Environment CSOF at 1.]
11

Based on Global Horizons’s admissions and the
undisputed evidence that the EEOC has submitted in connection
with the Hostile Work Environment Motion, this Court finds that
there is no genuine issue of material fact as to the physical and
verbal harassment that Global Horizons subjected the Claimants
to.

This Court finds 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.
In considering whether the harassment was sufficiently
severe and pervasive to alter the conditions of the Claimants’
employment, this Court must “look to all the circumstances,
including the frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating, or
a mere offensive utterance; and whether it unreasonably
interferes with an employee’s work performance.”

See Johnson v.

Riverside Healthcare Sys., LP, 534 F.3d 1116, 1122 (9th Cir.
2008) (citations and quotation marks omitted).

In light of the

circumstances of this case, as established by Global Horizons’s
admissions and the undisputed evidence that EEOC submitted in
connection with the Hostile Work Environment Motion, this Court

12

finds that there is no genuine issue of material fact as to the
extent of the harassment the Claimants suffered.

This Court

finds that the harassment that the Claimants suffered was
sufficiently severe and pervasive to alter the conditions of
their employment.
In addition, this Court concludes that, as a matter of
law, Global Horizons is vicariously liable for the harassment
that Tubchumpol, Germann, and Wongsesanit perpetuated against the
Claimants, see Dawson, 630 F.3d at 940, and Global Horizons is
liable for the harassment that Knoller, one of Global Horizons’s
corporate officers, perpetuated against Claimants.
This Court next turns to the issue of whether the
harassment that the Claimants suffered was based upon their race
and/or national origin.

Global Horizons has admitted that

Claimants complained to Global Horizons supervisors that they
were treated worse than the non-Thai workers.
Environment CSOF at 5.]

[Hostile Work

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 1-2.]

Global Horizons exploited

the enormous debts the Thai workers incurred to pay the
recruitment fees.

The EEOC presented evidence that Wongsesanit

constantly threatened Claimants with deportation to Thailand or

13

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.

See, e.g., Noh Decl., Exh. 3 (Decl. of

Amnuay Phiansing) at ¶¶ 4, 20.
In addition, the EEOC has presented evidence that
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.

Global Horizons’s

stereotyping is relevant to the EEOC’s establishment that the
Claimants’ race and/or national origin played a motivating part
in Global Horizons’s employment decisions.

Cf. Jespersen v.

Harrah’s Operating Co., 444 F.3d 1104, 1111 (9th Cir. 2006) (“in
establishing that ‘gender played a motivating part in an
employment decision,’ a plaintiff in a Title VII case may
introduce evidence that the employment decision was made in part
because of a sex stereotype” (quoting Price Waterhouse v.
Hopkins, 490 U.S. 228, 250-51, 109 S. Ct. 1775, 104 L. Ed. 2d 268
(1989))).
Global Horizons has admitted that Mordechai Orian, its
chief executive officer, “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,

14

and had no family or contacts in the US so they couldn’t escape
or question Global [Horizons].”
at 1.]

[Hostile Work Environment CSOF

Orian believed that, in general, “Thai people, they are

good people, nice people.
Decl., Exh. 1 at Nos. 64.]

And they just follow. . . .”

[Noh

Specifically, Orian believed that, as

workers in the United States Department of Labor (“Labor
Department”) H-2A guest worker program, the Claimants would “just
follow.”

[Id. at No. 65.]

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. at Nos. 66-69.]

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 . . . .”
in original).]

[Id. at No. 70 (alteration

He 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.”

original).]

[Id. at No. 71 (alteration in

Global Horizons has not presented any contrary

evidence regarding the motivating factors behind the harassment
that the Claimants suffered.
Based on Global Horizons’s admissions and the
uncontroverted evidence that the EEOC has presented in connection
with the Hostile Work Environment Motion, this Court finds that

15

there is no genuine issue of material fact as to the motivation
behind Global Horizons’s harassment of the Claimants.

This Court

finds that 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.
This Court therefore concludes that the EEOC has proven
all of the elements of its pattern and practice claim of hostile
work environment against Global Horizons.

Further, Global

Horizons has not identified any genuine issue of material fact as
to any substantive defense to the EEOC’s pattern and practice
claim of hostile work environment.

The EEOC is entitled to

judgment as a matter of law as to the portion of Count I alleging
a pattern and practice claim of hostile work environment against
Global Horizons.

See Fed. R. Civ. P. 56(a).

The EEOC’s Hostile

Work Environment Motion is therefore GRANTED.
IV.

Disparate Treatment
Courts analyze Title VII discrimination claims and

retaliation claims under the burden-shifting analysis set forth
in McDonnell Douglas v. Green, 411 U.S. 792 (1973).

See, e.g.,

Hawn v. Exec. Jet Mgmt., Inc., 615 F.3d 1151, 1155 (9th Cir.
2010) (discrimination); Dawson, 630 F.3d at 936 (retaliation).
The Ninth Circuit has stated that disparate treatment
discrimination occurs

16

“where an employer has treated a particular person
less favorably than others because of a protected
trait.” Ricci v. DeStefano, 557 U.S. 557, 129 S.
Ct. 2658, 2672, 174 L. Ed. 2d 490 (2009) (internal
quotation marks and alterations omitted). “A
disparate-treatment plaintiff must establish that
the defendant had a discriminatory intent or
motive for taking a job-related action.” Id.
(internal quotation marks omitted). A
discriminatory motive may be established by the
employer’s informal decisionmaking or “a formal,
facially discriminatory policy,” but “liability
depends on whether the protected trait . . .
actually motivated the employer’s decision.”
Hazen Paper Co. v. Biggins, 507 U.S. 604, 610, 113
S. Ct. 1701, 123 L. Ed. 2d 338 (1993). “It is
insufficient for a plaintiff alleging
discrimination under the disparate treatment
theory to show the employer was merely aware of
the adverse consequences the policy would have on
a protected group.” Am. Fed’n of State, Cnty., &
Mun. Emps. v. Washington, 770 F.2d 1401, 1405 (9th
Cir. 1985).
Wood v. City of San Diego, 678 F.3d 1075, 1081 (9th Cir. 2012)
(alteration in Wood).

Under the burden-shifting analysis:

If plaintiffs establish a prima facie case, “[t]he
burden of production, but not persuasion, then
shifts to the employer to articulate some
legitimate, nondiscriminatory reason for the
challenged action.” Chuang v. Univ. of Cal.
Davis, Bd. of Trs., 225 F.3d 1115, 1123–24 (9th
Cir. 2000). If defendant meets this burden,
plaintiffs must then raise a triable issue of
material fact as to whether the defendant’s
proffered reasons for their terminations are mere
pretext for unlawful discrimination. Noyes [v.
Kelly Servs.], 488 F.3d [1163,] 1168 [(9th Cir.
2007)].
Hawn, 615 F.3d at 1155 (some alterations in Hawn) (some citations
omitted).

17

In the Disparate Treatment Motion, the EEOC argues that
Global Horizons “engaged in barbaric security measures to hold
[the Claimants] as a captive workforce.”
Disparate Treatment Motion at 32.]

[Mem. in Supp. of

Claimant Amnuay Phiansing’s

declaration states: “During my employment at Maui Pineapple, the
Thai workers and I 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 us to a curfew and daily head count.”
[Noh Decl., Exh. 3 at ¶ 8.]

Claimant Aniwat Khadphab’s

declaration, Claimant Chakkrapong Khongkhao’s declaration,
Claimant Jakarin Phookhiew’s declaration, and Claimant
Liam Kajai’s declaration describe similar conditions.

[Id., Exh.

5 at ¶ 9; id., Exh. 6 at ¶ 8; id., Exh. 10 at ¶ 8; id., Exh. 13
at ¶ 9.]

Some of the Claimants stated that, once Global Horizons

brought them to the United States, their passports were
immediately confiscated.

See, e.g., Noh Decl., Exh. 5 at ¶ 6;

id., Exh. 6 at ¶ 5; id., Exh. 13 at ¶ 5.

Phookhiew also stated

that, at Maui Pineapple, “[t]here was a high metal fence
containing three layers of wire surrounding our housing
facility,” and that he “felt like a prisoner.”
10 at ¶ 8.]

[Noh Decl., Exh.

Claimant Liam Kajai also felt like a prisoner

because, at the second housing location he was assigned to,
Global Horizons had ten security guards patrolling the area

18

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., Exh. 13 at ¶ 16.]

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.”
[Disparate Treatment CSOF at ¶ 33.]

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. at ¶¶ 16, 36;]
•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.
at ¶¶ 23, 34;]
•it demanded that the Claimants work faster than the non-Thai
workers; [id. at ¶ 44;]
•Claimants were assigned to less desirable and more demeaning
jobs at the various farms than the non-Thai workers, such as
the Filipino workers; [id. at ¶¶ 37-39;]
•at some of the farms, Claimants were paid less than the non-Thai
workers; [id. at ¶¶ 40-42;] and
•non-Thai workers were scheduled for more work hours and were
never deprived of their wages, while 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 ¶¶ 24,
26-27, 43].
In addition, while the Micronesian workers were allowed to own a
car, drink alcohol, and listen to loud music during their free
time, the Thai workers were not allowed to do so.

19

[Id. at ¶ 45;

Noh Decl., Exh. 28 (Decl. Of Itthi Oa Sot) at ¶¶ 18-19.]

In

fact, 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.

[Noh Decl., Exh. 3 at ¶ 10; id., Exh. 6 at ¶ 10; id., Exh.

7 at ¶ 11.]

The Micronesian workers received an adequate amount

of food and better quality food.
their own food.

They were also allowed to cook

[Noh Decl., Exh. 7 at ¶ 12.]

The Micronesian

workers also did not have to share their sleeping quarters with
as many other workers as the Thai workers did.

[Id., Exh. 11 at

¶ 15.]
The evidence clearly establishes that Global Horizons’s
standard operating procedure was to treat the Thai workers less
favorably than the non-Thai workers.

As previously addressed in

connection with the Hostile Work Environment Motion, the record
clearly establishes that Global Horizons acted upon stereotypical
beliefs about the Thai workers and that Global Horizons exploited
the Claimants’ indebtedness and the perceived compliant nature of
Thai people.

Thus, the evidence supports a finding that the

motivation for Global Horizons’s disparate treatment of Claimants

20

was Global Horizons’s desire to force them into compliance and
obedience and to prevent the Claimants from escaping.

Global

Horizons has not identified any evidence which suggests that
there is a genuine issue of fact as to the existence of a nondiscriminatory motivation for its treatment of the Thai workers.
Based on Global Horizons’s admissions and the
uncontroverted evidence that the EEOC has presented in connection
with the Disparate Treatment Motion, this Court finds that there
is no genuine issue of material fact as to the EEOC’s pattern and
practice claim of disparate treatment against Global Horizons.
This Court finds that the undisputed record in this case
establishes that 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’s standard operating procedure.

This

Court concludes that the EEOC has established its prima facie
case as to its pattern and practice claim of disparate treatment
by Global Horizons.
Global Horizons has not identified any evidence
suggesting that there is a genuine issue of material fact as to
the burden-shifting analysis.

This Court therefore concludes

that the EEOC is entitled to judgment as a matter of law as to
the portion of Count I alleging a pattern and practice claim of

21

disparate treatment by Global Horizons.

The EEOC’s Disparate

Treatment Motion is GRANTED.
V.

Retaliation
Title VII prohibits retaliation.

Title VII states

that:
It shall be an unlawful employment practice for an
employer to discriminate against any of his
employees . . . because he has opposed any
practice made an unlawful employment practice by
this subchapter, or because he has made a charge,
testified, assisted, or participated in any manner
in an investigation, proceeding, or hearing under
this subchapter.
42 U.S.C. § 2000e-3(a).

The two parts are known as the

“opposition clause” and the “participation clause.”

See, e.g.,

Learned v. City of Bellevue, 860 F.2d 928, 932 (9th Cir. 1988).
This Court has recognized that:
[T]he opposition clause, by its terms,
protects only those employees who oppose what
they reasonably perceive as discrimination
under the Act. An employee need not
establish that the opposed conduct in fact
violated the Act in order to establish a
valid claim of retaliation. [Sias v. City
Demonstration Agency, 588 F.2d 692, 695 (9th
Cir. 1978).] That is, an employee may fail
to prove an “unlawful employment practice”
and nevertheless prevail on his claim of
unlawful retaliation. However, the opposed
conduct must fairly fall within the
protection of Title VII to sustain a claim of
unlawful retaliation. Silver v. KCA, Inc.,
586 F.2d 138, 142 (9th Cir. 1978) (“under the
clear language of the “opposition” clause of
[section] 704(a), a case of retaliation has
not been made out unless the “retaliation”
relates to the employee’s opposition to a
[section] 703 violation”); see also Sias, 588
22

F.2d at 695-96 (“[a]lthough the [district]
court made no explicit finding that Sias’
opposition was based on a reasonable belief
that the City’s employment practices violated
Title VII, such a finding is implicit here”)
(footnote omitted).
. . . .
The participation clause is broadly
construed to protect employees who utilize
the tools provided by Congress to protect
their rights. Sias, 588 F.2d at 695. As
with the opposition clause, it is not
necessary to prove that the underlying
discrimination in fact violated Title VII in
order to prevail in an action charging
unlawful retaliation. Id. “If the
availability of that protection were to turn
on whether the employee’s charge were
ultimately found to be meritorious, resort to
the remedies provided by the Act would be
severely chilled.” Id. (citation omitted).
The mere fact that an employee is
participating in an investigation or
proceeding involving charges of some sort of
discrimination, however, does not
automatically trigger the protection afforded
under section 704(a); the underlying
discrimination must be reasonably perceived
as discrimination prohibited by Title VII.
See generally, G. Rutherglen, Major Issues in
the Federal Law of Employment Discrimination
47-48 (Federal Judicial Center 1987). Thus,
even if the filing of Title VII charges with
a state agency such as the [Human Rights
Commission (“HRC”)] could be construed as
participation in an investigation,
proceeding, or hearing under Title VII, see
Hicks v. Abt Assocs., 572 F.2d 960, 968-69
(3d Cir. 1978), the HRC filing does not fall
within the protection of 704(a) in this case
because Learned did not allege discrimination
prohibited by Title VII. . . .
[Learned, 860 F.2d at 932] (some alterations in
Learned). The participation clause only prohibits
23

retaliation against
EEOC process. See,
Las Vegas, 251 Fed.
(citing Vasconcelos
(9th Cir. 1990)).

persons who participate in the
e.g., Greisen v. City of North
Appx. 462, 463 (9th Cir. 2007)
v. Meese, 907 F.2d 111, 113

Phillips v. Mabus, Civil No. 12–00384 LEK–RLP, 2013 WL 4662960,
at *13-14 (D. Hawai`i Aug. 29, 2013).
Generally, “[t]o make out a prima facie retaliation
case, [the plaintiff has] to show that she engaged in protected
activity, that she suffered a materially adverse action, and that
there was a causal relationship between the two.”

Westendorf v.

W. Coast Contractors of Nev., Inc., 712 F.3d 417, 422 (9th Cir.
2013) (some citations omitted) (citing Burlington Northern &
Santa Fe Ry. Co. v. White, 548 U.S. 53, 57, 126 S. Ct. 2405, 165
L. Ed. 2d 345 (2006)).
Global Horizons has admitted that the Claimants at Maui
Pineapple complained that Global Horizons forced them to work
harder than the non-Thai workers.

[Retaliation CSOF at ¶¶ 22.]

The EEOC also presented evidence that the Claimants at Maui
Pineapple also raised the issues of inadequate work hours, nonpayment of wages, unauthorized paycheck deductions, poor living
conditions, and lack of sufficient food.

[Noh Decl., Exh. 25

(Decl. of Apichart Peayer) at ¶ 13; id., Exh. 27 (Decl. of
Bunyarit Pengbunma), at ¶ 15; id., Exh. 16 (Decl. of
Prakran Radchai), at ¶ 17.]

Global Horizons has admitted that

its supervisors, Wongsesanit, Tubchumpol, and Germann, ignored or

24

belittled the complaints at Maui Pineapple.
¶ 22.]

[Retaliation CSOF at

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 ¶ 25.]

Global Horizons further admitted that,

when the Labor Department 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. at ¶ 27.]

Claimant Pengbunma was

one of the workers who the investigators spoke to.

He states

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.

[Noh Decl., Exh. 27 at

¶¶ 16-17.]
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.

The

Del Monte Claimants also raised those complaints, as well as
complaints about the exorbitant recruiting fees they paid, to the
Labor Department.

In response to the internal complaints, the

25

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 Labor Department and that the Del Monte
Claimants were cooperating in the Labor Department’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. at ¶¶ 29-32.]

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.

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. at ¶¶ 35-36, 38.]

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.

26

[Id. at ¶¶ 40-42.]

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.
Tubchumpol met with the Kelena Farms Claimants, but merely told
them to stop complaining.

[Id. at ¶¶ 43-45.]

Global Horizons has not identified any evidence to the
contrary.

Based on Global Horizons’s admissions and the

uncontroverted evidence that the EEOC has submitted in connection
with the Retaliation Motion, this Court finds that there is no
genuine dispute of material fact as to the issue of whether the
Claimants engaged in protected activity.

The district court has

already recognized in this case that it is irrelevant whether or
not the Claimants specifically complained that they were being
mistreated because of their race or national origin.
The Ninth Circuit has held that “an employee who
complains of a practice that has a
disproportionate impact on a protected group
complains of unlawful discrimination and is
protected by the opposition clause.” Gifford v.
Atchison, Topeka & Santa Fe Ry. Co., 685 F.2d
1149, 1157 (9th Cir. 1982). The complaining
employee need not “be aware that the practice is
unlawful under Title VII at the time of the
opposition in order for opposition to be
protected.” Id.
. . . .
. . . As the Ninth Circuit held in Gifford, a
complaining employee need not be aware that a
complained-of practice violates Title VII in order
for the complaint to be protected. 685 F.2d at
27

1157. After all, “[i]t requires a certain
sophistication for an employee to recognize that
an offensive employment practice may represent
. . . discrimination that is against the law.”
Id.
11/8/12 Order, 904 F. Supp. 2d at 1088-89 (some alterations in
11/8/12 Order).

This Court therefore finds that the Claimants

engaged in protected conduct for purposes of the opposition
clause by making multiple complaints about Global Horizons’s
discriminatory treatment of them.

As this Court has found,

Global Horizons subjected the Claimants to discriminatory
treatment based upon their race and/or national origin.

This

Court therefore finds that the EEOC has established the protected
activity requirement of its prima facie case.

This Court now

turns to the adverse action requirement.
This Court has stated:
For the purposes of [a] Title VII retaliation
claim, an adverse employment action is one that “a
reasonable employee would have found . . .
materially adverse, which in [the retaliation]
context means it well might have dissuaded a
reasonable worker from making or supporting a
charge of discrimination.” Burlington N. R .R. &
Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S.
Ct. 2405, 165 L. Ed. 2d 345 (2006). Threats may
rise to the level of an adverse employment action
in a retaliation claim if, under the particular
circumstances, those threats would have deterred a
reasonable employee from engaging in protected
activity. See Burlington, 548 U.S. at 68, 126 S.
Ct. 2405; Martin v. Gates, 2008 WL 4657807 at
*10–11 (D. Haw. Oct. 20, 2008) (finding that
employee made a prima facie claim of retaliation
where employer made threat of severe disciplinary
action). Threats sufficient to deter an employee
from engaging in protected activity may include
28

threats to terminate employment, reduce
compensation, or impose administrative leave.
E.E.O.C. v. Collegeville/Imagineering, 2007 WL
2051448, at *8 (D. Ariz. July 16, 2007)
(concluding plaintiff put forth prima facie
evidence of material adverse action by showing
supervisor with requisite power threatened to
terminate plaintiff); Lee v. Winter, 439 F. Supp.
2d 82, 85 (D.D.C. 2006) (finding threat of reduced
compensation constitutes materially adverse action
after Burlington ); Killen v. Nw. Human Servs.,
Inc., 2007 WL 2684541, at *7 (E.D. Pa. Sept. 7,
2007) (finding that the threat of placement on
administrative leave could have dissuaded a
reasonable employee from making a discrimination
claim). “A fair reading of [Burlington] reveals
that the case imposes no requirement that a threat
be fulfilled.” Walsh v. Irvin Stern’s Costumes,
2006 WL 2380379, at *2 (E.D. Pa. Aug. 15, 2006);
see also Williams v. W.D. Sports, N.M., Inc., 497
F.3d 1079, 1090 (10th Cir. 2007) (finding
combination of threats and actions could dissuade
reasonable employee).
Kosegarten v. Dep’t of Prosecuting Attorney, Civil No. 10–00321
LEK–KSC, 2013 WL 655461, at *21-22 (D. Hawai`i Feb. 21, 2013)
(some alterations in Kosegarten) (quoting D’Andrea v. Univ. of
Hawaii, 686 F. Supp. 2d 1079, 1088 (D. Hawai`i 2010)).

This

Court concludes, as a matter of law, that Global Horizons’s
treats of deportation and threats of transfer to farms where
there was less work and less pay would deter a reasonable
employee from engaging in protected activity.

This Court

therefore finds that there are no genuine issues of material
fact, and that the Claimants suffered materially adverse
employment actions.

This Court also finds that the adverse

employment actions that Global Horizons took against the

29

Claimants were so common as to constitute Global Horizons’s
standard operating procedure in response to complaints about
discriminatory treatment of Thai workers.
Further, based on the nature of Global Horizons’s
threats - that any Claimant who complained about the
discriminatory treatment would be deported or transferred - this
Court finds that there are no genuine issues of material fact,
and that there was a causal relationship between Claimants’
protected activity and the material adverse actions by Global
Horizons.

This Court therefore finds that the EEOC has

established all of the elements of its prima facie case for
pattern and practice retaliation.

Although retaliation claims

are subject to the McDonnell Douglas burden-shifting framework,
see Dawson, 630 F.3d at 936, Global Horizons has not responded to
the Retaliation Motion and therefore has not identified any
evidence that raises a genuine issue of material fact as to
whether there was a legitimate, nondiscriminatory reason for its
actions.

This Court therefore concludes that the EEOC is

entitled to judgment as a matter of law as to the portion of
Count I alleging a pattern and practice claim of retaliation by
Global Horizons.

The EEOC’s Retaliation Motion is GRANTED.
CONCLUSION

On the basis of the foregoing, the EEOC’s Motion for
Partial Summary Judgment on the EEOC’s Pattern or Practice Claim

30

of Hostile Work Environment Against Defendant Global Horizons,
Inc., the EEOC’s Motion for Partial Summary Judgment on the
EEOC’s Pattern or Practice Claim of Disparate Treatment Against
Global Horizons, and the EEOC’s Motion for Partial Summary
Judgment on the EEOC’s Pattern or Practice Claim of Retaliation
Against Global Horizons, all filed November 1, 2013, are HEREBY
GRANTED.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, March 19, 2014.

/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

EEOC VS. GLOBAL HORIZONS, INC., ET AL.; CIVIL 13-00257 LEK-RLP;
ORDER GRANTING PLAINTIFF’S: MOTION FOR PARTIAL SUMMARY JUDGMENT
ON THE EEOC’S PATTERN OR PRACTICE CLAIM OF HOSTILE WORK
ENVIRONMENT AGAINST DEFENDANT GLOBAL HORIZONS, INC.; MOTION FOR
PARTIAL SUMMARY JUDGMENT ON THE EEOC’S PATTERN OR PRACTICE CLAIM
OF DISPARATE TREATMENT AGAINST GLOBAL HORIZONS, INC.; AND MOTION
FOR PARTIAL SUMMARY JUDGMENT ON THE EEOC’S PATTERN OR PRACTICE
CLAIM OF RETALIATION AGAINST GLOBAL HORIZONS, INC.

31