STATEMENT OF JURISDICTION

The Equal Employment Opportunity Commission (“EEOC”) brought this enforcement action against Green Acre Farms, Inc. (“Green Acre”), Valley Fruit Orchards, LLC (“Valley Fruit”),[1] and Global Horizons, Inc., d/b/a Global Horizons Manpower, Inc. (“Global”) under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. The district court had jurisdiction under 28 U.S.C. §§ 1331, 1337, 1343, and 1345.

On November 2, 2015, the district court entered judgment in favor of the Growers against EEOC. XII-ER-3046.[2] On April 26, 2016, the court entered final judgment after entering judgment in favor of EEOC against Global. XII-ER-3047. EEOC timely appealed from the final judgment on June 24, 2016. Id. See Fed. R. App. P. 4(a)(1)(B). This Court has jurisdiction under 28 U.S.C. § 1291.

1. Did the district court apply the wrong legal standard in partially dismissing the First Amended Complaint (“FAC”) as to the Growers’ liability for “non-orchard-related” conduct and national-origin-based disparate treatment, and in denying EEOC’s related discovery motions?

2. Did the district court err in granting summary judgment to the Growers on EEOC’s Title VII hostile work environment and constructive discharge claims?

3. Did the district court abuse its discretion in awarding the Growers attorney’s fees under Christiansburg Garment Co. v. EEOC because this litigation was not frivolous, unreasonable, or without foundation?

STATEMENT OF THE CASE

A. Course of Proceedings

This is an appeal from the district court’s final judgment dismissing this Title VII enforcement action as against the Growers and awarding attorney’s fees and costs. The FAC alleges that the Growers, as joint employers with Global, engaged in discrimination, harassment, and constructive discharge against a group of Thai guest workers (the “Claimants”) on the basis of their national origin and retaliated against them for complaining. XII-ER-2910-13.

On July 27, 2012, the district court partially dismissed the FAC, holding that the Growers could only be liable for “orchard-related” Title VII violations involving the Claimants. I-ER-163-64. The court also held that the FAC failed to allege sufficient facts to support separate claims of national origin discrimination against either Grower or retaliation as against Valley Fruit. I-ER-167-68.

On May 28, 2014, the district court granted summary judgment to the Growers on EEOC’s remaining claims against them: national-origin-based hostile work environment (individual or pattern-or-practice), constructive discharge, and retaliation as against Green Acre. I-ER-126-27. On March 3, 2015, after Global elected not to defend itself further, the court entered default against Global.[3] XII-ER-3041.

On March 19, 2015, the district court granted the Growers’ joint motion for attorney’s fees. I-ER-90. The parties then litigated the amount of the fees award, and on November 2, 2015, the district court ordered judgment entered against EEOC in the Growers’ favor in the amount of $986,033.30. I-ER-37.

The district court entered final judgment on April 26, 2016, after entering default judgment against Global in EEOC’s favor in the amount of $7,658,500.00. I-ER-30, II-ER-187. EEOC appealed. II-ER-172-86.

B. Statement of the Facts

Green Acre, a corporation based in Harrah, Washington, is a farm growing pears, peaches, apples, and other crops. VIII-ER-2046. The Morford family owns and operates Green Acre; during the relevant period, Jim Morford was the Vice President and Treasurer of the corporation. Id. Valley Fruit, an LLC based in Wapato, WA, is a vertically integrated growing and packing operation, including a farm that grows cherries, apples, pears, and peaches. VIII-ER-2055-56. John Verbrugge described himself as a “member with an ownership interest” in Valley Fruit. Id. Defendant Global was a California corporation that provided agricultural laborers and supervisors to farms in need of field work and equipment operation. VI-ER-1296.

In 2004 and 2005, each Grower contracted independently with Global to provide temporary guest workers for its respective operations. VIII-ER-2047, 2056. Global obtained the farms’ temporary workforce through the H-2A Temporary Agricultural Workers program. See generally USCIS, H-2A Temporary Agricultural Workers, https://www.uscis.gov/working-united-states/temporary-workers/h-2a-temporary-agricultural-workers (last visited Jan. 17, 2017). The H-2A workers Global procured for the Growers were a mixture of local workers from the United States and foreign workers from Thailand. VII-ER-1651-53. According to Bruce Schwartz, Global’s Senior Supervisor at both farms, and Charlie Blevins, Global’s General Manager for Washington State, most of the local H-2A workers were of “Hispanic and/or Mexican descent,” although some were Caucasian. VIII-ER-2034, 2041.

Mordechai Orian, Global’s President and CEO, testified that, although the Growers didn’t “get involved in the decision of where [the H-2A workers] came from,” “obviously we talked about it because they need to agree.” VII-ER-1654-55. According to Orian, he informed the Growers in 2004 and 2005 that he would be bringing foreign H-2A workers from Thailand. VII-ER-1655.

Jose Cuevas, a Global orchard supervisor, recounted a conversation between Orian, Schwartz, and Verbrugge where Schwartz said that “the Thai workers were really hard workers and they were not bringing lawsuits or anything, they just wanted to work…. the Hispanic workers will spend the whole time just questioning and suing. However, the people from Thailand would not ask any questions and would just… [be] willing to work seven days a week.” VII-ER-1562-63. Cuevas testified that Orian and Verbrugge were both “nodding like indicating an agreement” in response to Schwartz’s comment about Hispanic versus Thai workers. VII-ER-1563. Cuevas also testified that he heard similar comments “very often” between Morford and Orian, but he didn’t “specifically remember words or areas because that was being talked a lot about.” VII-ER-1568.

1. The H-2A Agreements Between Global and the Growers

Except for minor differences in the descriptions of the farm labor tasks to be performed, the Growers entered into essentially identical H-2A Agreements with Global for 2004 and 2005. VI-ER-1296-301, 1303-10. The contract provided that Global “shall, at its own expense, furnish farm labor as required by [the farm] to safely perform” the necessary tasks “on that certain land as advised by” the farm. VI-ER-1296, 1303. The farms were to advise Global on a day-to-day basis of the services required, the portions of the land to be worked, and how many workers would be needed. Id. Global, in turn, agreed to provide qualified and competent workers to operate equipment, as necessary, and to keep the land neat and clean. Id.

The contract then provided that “All workers furnished by [Global] will be employees of [Global] and will at all times be subject to the sole and direct supervision and control of [Global].” VI-ER-1297, 1304. It further stated that Global “shall pay all wages when due to its employees,” comply with all relevant laws and regulations, and maintain wage records. Id. Moreover, Global “shall have the sole responsibility of paying the salaries, benefits, incentives, payroll taxes and all other expenses relating to each of [its] workers.” Id.

The H-2A Agreements further provided that the Growers “shall have the right to have an inspector (the ‘Client Representative’) present at all times to observe that the Services are being performed in accordance with [their] quality standards.” Id. Also, Global was to “provide, at its sole expense, whatever ancillary support, equipment, supplies, transportation and facilities as required by law and for its workers to adequately and properly perform their respective tasks.” Id.

Global also “represent[ed] and warrant[ed]” that: it was and would remain in compliance with all applicable laws and regulations, including the Migrant and Seasonal Agricultural Worker Protection Act, 29 U.S.C. §§ 1801 et seq.; it held all required licenses, including a current, valid United States Department of Labor (“DOL”) Farm Contractor License and any licenses required for the transportation and housing of workers; and any housing or transportation it provided to its workers would meet or exceed all legal requirements. VI-ER-1297-98, 1304-05.

Regarding compensation, in relevant part, the contract provided that the Growers would pay Global at tiered hourly rates per H-2A worker depending on how many hours per week he worked. Id. If Global provided transportation and/or housing for the workers, additional surcharges applied. VI-ER-1298, 1306. The Growers agreed to provide a minimum of thirty hours’ work per week per worker for the length of the contract. Id. “Payment for work performed and hours lost will be the responsibility of the [farms].” VI-ER-1299, 1306.

Finally, under “miscellaneous” provisions, paragraph (g) stated: “Nothing contained in this Agreement shall be construed to create a joint venture or partnership by and/or between the parties hereto.” VI-ER-1300, 1306.

2. Global’s Recruitment and Importation of Thai H-2A Workers

As the district court stated in its Findings of Fact when it granted default judgment against Global, “Global intentionally recruited impoverished Thai workers for its labor contracts in the United States believing that they would be more manageable, less likely to complain about seizure of their passports, less work than promised, or delay in wages because they were desperate for the wages to pay off exorbitant recruitment fees mortgaged by their property and often, the property of their Thai relatives.”[4] I-ER-4-5. The Claimants testified that Global charged them recruitment fees ranging between 350,000 and 1,060,000 Thai Baht—about $9,500 to $26,500—and instructed them to lie to any U.S. officials who asked them how much they had paid. See, e.g., III-ER-589, 607, 641, 676, 680; IV-ER-738, 771, 846, 905, 956, 971.

As the district court observed, the Claimants were left in dire financial straits after paying these fees in exchange for promises of high wages and three years’ steady employment in the United States. Nearly all of them testified that they were forced to mortgage their own and their relatives’ property to pay the recruitment fees. See, e.g., IV-ER-722 (claimant mortgaged his and his parents’ properties); IV-ER-790 (claimant mortgaged his house and farm and his wife’s land, and incurred large debts); IV-ER-808 (claimant mortgaged his home, his rice field and his father-in-law’s house); V-ER-1168 (claimant mortgaged family home and other property as collateral for private loans).

Unfortunately, as the district court noted, Global’s promises were “false.” I-ER-5. Instead, when the Claimants arrived in the United States, a Global representative immediately confiscated their passports, which often were never returned. Id.; see, e.g., III-ER-589, 607, 626, 641, 659, 676, 709; IV-ER-722, 738, 758, 790, 869. Global employees then transported the Claimants to a Grower to perform farm labor, where, as the district court recounted:

Global supervisors … regularly and consistently harassed and intimidated the claimants with confiscation of passports, imposition of curfews, prohibition of contact with outsiders, threats of deportation to Thailand if they complained, violated Global rules against communication with outsiders, violated curfew, or tried to escape, and subjected the claimants to head count to confirm that no claimant had left. Threats included arrest and return to Thailand before completion of the contract with devastating financial results because of the high recruitment debt often secured by farms and property of the claimants and their families.

I-ER-5-6.

The Claimants universally echoed the district court’s characterization. See, e.g., V-ER-1024 (“During my employment at Valley Fruit,… Global prohibited us from leaving the housing and work premises without Global’s supervision, and to never to speak to strangers/outsiders. Global subjected us to a curfew and daily head count. Global told us that if we walked the streets by ourselves we would be arrested by the police. I felt like a prisoner.”); V-ER-1205 (same re: Green Acre); IV-ER-772, 870 (both farms); V-ER-1170 (“Global supervisors like Pranee [Tubchumpol] routinely threatened us with being sent back to Thailand, arrested by the police, or transferred to another farm earning less money if we did not work hard enough, failed to meet work quotas, complained, tried to escape, failed to obey, or missed the daily head count.”); IV-ER-791 (same), 810 (same re: Blevins and Tubchumpol) 870 (same re: Global supervisor Chaiyot Goodton).

The Claimants further testified that their extreme debts in Thailand left them especially vulnerable to these kinds of threats and coercion. As Claimant Wongkaeo explained:

I was terrified of being sent back to Thailand because I wanted to continue earning wages in the U.S. Being sent back to Thailand was a “financial death sentence.” I needed to work in the U.S. in order to pay for the large debts I owed after paying excessively high recruitment fees to Global’s recruiters in Thailand. I was also afraid of being physically harmed by my creditors and being ridiculed in Thailand if I failed to pay my debts.

V-ER-1170; see also, e.g., VIII-ER-1948-49 (Promson: because he had mortgaged his land and rice fields, losing them would mean losing his only source of employment in Thailand, and he and his family “will probably [be] like a beggar … because I would become hopeless.”).

3. The Claimants’ Treatment Outside the Orchards

On their arrival in the United States, Global usually brought the Thai H-2A workers to one of the eight housing facilities listed in the FAC, which were also listed on the Claimants’ clearance orders. XII-ER-2939. Seven of the facilities were procured by Global for use by the H-2A workers and did not belong to either farm, but Valley Fruit owned the “Royal City” house, which was on its property. VII-ER-1676. Although Verbrugge denied any responsibility for the Royal City house beyond ownership (VIII-ER-2057-58), Schwartz testified that Valley Fruit was responsible for repairs to the Royal City house, and that a Valley Fruit employee lived there with the Claimants. VII-ER-1676-77.

As the district court observed in its Findings of Fact, “These [housing] facilities were … too small for the number of claimants assigned to them resulting in overcrowding; these living quarters lacked adequate bathrooms and cooking appliances, were unsanitary, and were bug infested, making them virtually uninhabitable.” I-ER-7. The Claimants’ testimony was consistent with this description. See, e.g., IV-ER-810-11, 830, 848, 907, V-ER-1206-07, 1227-28. They also testified that they were frequently hungry, due to both the inadequate cooking facilities and Global’s failure to provide them with access to enough food. See, e.g., IV-ER-810-11 (“We did not have adequate groceries because Charlie [Blevins] would take us to buy groceries just once every two weeks. We would often run out of food.… Sometimes we would fish and hunt small animals like rabbits for food because we were hungry and did not have enough money to buy food.”); V-ER-1228 (“While working at Green Acre …, Global required us to provide our own food. [We] did not have adequate food … because there was inadequate kitchen space … [and] because Global failed to provide us with adequate transportation to the market to buy groceries.…”); VIII-ER-1816-18 (Cheunjaichon: while working at Valley Fruit he was given a $50 grocery card to split with three other Thai workers to purchase a week’s worth of food); VIII-ER-1807 (when Cheunjaichon complained to Global supervisor Larry Collins that $50 was not enough, Collins told him “that the company has not been paid by the farm yet.”).

Several Claimants testified specifically about the poor conditions at Valley Fruit’s Royal City house and that Valley Fruit employees were aware of them. See, e.g., III-ER-590-91 (Amattat: at the Royal City house, “I shared a 4 bedroom house with thirty other workers and we all slept in bunk beds. We often had to wait in long lines to use one bathroom…. [T]he … farm supervisor was the one who took us to the house.”); IV-ER-870-71 (Nuansri: at the Royal City house, “I shared a 4 bedroom and 2 bathroom house with 14 other workers. We all slept in bunk beds. We often had to wait in long lines to use the bathroom.” “[T]he farm manager visited us [there] to reprimand us for not meeting production quotas.”). Orian also testified that “for sure” he had seen Verbrugge at the Royal City house “one time.” VII-ER-1667.

Claimants also testified that the Growers were aware, or had reason to be aware, of the substandard conditions at other properties. See, e.g., V-ER-1243 (Chanaphai: “a white male farm manager came to visit us at our housing on at least two occasions”); V-ER-1025 (Srinongkhot: Valley Fruit management “visited us [at our housing] and asked us how we were being treated.”); IV-ER-974 (Saengvan: “Thai workers who could speak English talked to the farm driver” about overcrowded housing conditions); IV-ER-958-59 (Rodphan: “On one occasion, one of Green Acre’s managers came over to [our housing] and reprimanded us for not meeting our production quotas and that we needed to work faster than the non-Thai workers.”); IV-ER-811 (Lomajan: housing facility where he stayed while working for Green Acre failed DOL inspection).

Global transported the Claimants between the orchards and their housing facilities on buses Global procured. VIII-ER-2034. The district court observed in its Findings of Fact that the transportation was “unsafe and overcrowded … when it was made available,” I-ER-7, a characterization reflected in the Claimants’ testimony. See, e.g., IV-ER-740 (“There [were] not enough seats for all the Thai workers. Some of us had to sit on the floor or squeeze 3 workers in a seat built for 2 people. The bus ride lasted an hour each way.”); V-ER-1208 (“While working at Green Acre, … [w]e were forced to stand or squeeze four to a seat made for three. The bus ride to the fields lasted 30 minutes to over an hour.”); V-ER-1228 (“[The bus] was so overcrowded that some workers had to sit on the big water container if they got on the bus late. I felt unsafe because it was tight, uncomfortable and crowded.”).

Claimants also testified that the farms’ owners or employees saw the Claimants getting on and off the buses daily at the orchards. See, e.g., IV-ER-812 (“Green Acre owner Jim saw us getting on and off the bus each day”); III-ER-592, IV-ER-774, 793, 831, 974, V-ER-1172, 1228 (owners/managers from both farms); IV-ER-849, V-ER-1208 (Green Acre); V-ER-1026 (Valley Fruit).

Several Claimants also testified that they told Valley Fruit and/or Green Acre management about Global threatening them and holding them as a captive workforce. Narong Srinongkhot, who spoke enough English that he served as a group leader/translator for Global (V-ER-1023-24), recounted that “Valley Fruit farm owners/managers were aware that my Thai-coworkers and I were routinely held as a captive workforce because I told the farm supervisors about our living conditions and how we were being treated.” V-ER-1024. He also stated that he told Valley Fruit management about being routinely subjected to threats. V-ER-1025. See also, e.g., IV-ER-791-92 (Lainok: “The farm owners/managers were aware that [we] were routinely held as a captive workforce [and subjected to threats] because we told the farms’ supervisors about our living conditions and how we were being treated. A group of Thai media persons also visited us where we lived to investigate our working and living conditions. The Thai media had permission from the farms to visit us.”); III-ER-693 (Intip: Valley Fruit and Green Acre management “were aware that [we] were routinely subjected to threats because my Thai coworkers who could speak English spoke to farm employees”).

There were also constant problems with the Claimants’ pay. The district court found that “[f]requently Global delayed payment of earned wages to the claimants causing financial hardship to them and their families.” I-ER-7. However, several of the Claimants testified that, on some occasions when they were not paid, Global attributed the lack of pay to the Growers—either because a Claimant had failed to meet a quota imposed by a Grower or because a Grower had not paid Global. See, e.g., III-ER-658 (Chuenjaichon: “Any worker that could not meet the goal would be sent to the bus to wait for the rest of the day. This hurt our pay, and appeared to be a punishment.”); IV-ER-812-13 (Lomajan: when Thai workers failed to meet Green Acre’s quotas, they were suspended from work for a week without pay); IV-ER-725 (Kongpia: “I was not paid for my work at Valley Fruit in November 2005. When I and the other Thai workers confronted Charlie [Blevins] about not getting paid, he blamed it on Valley Fruit not paying Global.”); V-ER-1150 (Truatnok: “On one occasion in 2004, a group of Thai workers was punished by Green Acre owner Jim for not picking the golden apple properly. These workers did not work and were not paid for one week.”); VIII-ER-1816-17 (Chuenjaichon: the Thai workers at Valley Fruit were told that the company had not sent their wages, then were told their wages had been sent to Thailand, but in fact their wages were not received at all).

4. The Claimants’ Work in the Orchards

Witnesses from both Growers testified that when the Claimants arrived at the orchards, either farm employees or the owners themselves were directly involved with showing them how to perform their jobs. At Green Acre, Morford, who testified that he considered himself a “hands-on owner/manager of the farm,” explained that either he or his supervisory employees would show the Global crew bosses—including English-speaking Thai workers—how to perform the necessary tasks, and the crew bosses would then show the rest of the Thai workers. VII-ER-1622-25, 1630-31. Morford further testified that “I actually showed them myself. I mean, I got up on a ladder. I pruned two or three trees in front of their crew bosses,… and actually pruned some trees. This is what they should look like, what we want after it’s done pruning.” VIII-ER-1985. Verbrugge, on the other hand, testified that he did not personally instruct the Thai workers, but his Valley Fruit ranch managers did. VII-ER-1736-37, 1740-41.

Other witnesses also testified that either ranch managers or Morford were involved in training the Claimants—both initially and on an ongoing basis. See, e.g., III-ER-525-26 (Blevins: at each ranch, when the Thai workers started a new task, a ranch foreman would come out to the job sites and physically show the workers how the job should be done); VII-ER-1596-98 (Dirk Dunn: at Valley Fruit the individual ranch managers provided both initial training and re-training to the Thai workers through interpreters). Their testimony was consistent with the Claimants’. See, e.g., III-ER-609 (Chamnansarn: “Through Narong interpreting, Green Acre supervisors and employees trained me and my Thai co-workers about how to perform our work at the orchards.”), IV-ER-774 (same); III-ER-657 (Chuenjaichon: “I learned that Jim Morford was the owner of Green Acre, because he taught me and other Thai workers how to pick peaches and then pear when we first started working at Green Acre….”); IV-ER-809 (“The Green Acre owner/supervisor Jim taught me and the Thai workers how to pick the fruit and gave us the equipment to perform our jobs at the orchards.… Jim or other Green Acre supervisors reviewed our work every day before we left the orchard to go home.”); IV-ER-927 (“Valley Fruit supervisors or employees trained me and the other Thai workers when we worked at Valley Fruit….”).

Notwithstanding the terms of the H-2A agreements (VI-ER-1297, 1304), both Morford and Verbrugge, as well as Global supervisor Blevins and Green Acre supervisor Arnold Anaya, testified that the Growers provided most of the equipment the Thai workers used in the fields. VIII-ER-2048-49, 2058 (Morford and Verbrugge); VII-ER-1553 (Blevins); VII-ER-1540-41 (Anaya).

There was copious record evidence that the Growers continued to play an active role in managing the Thai workers’ schedules, job tasks, and performance throughout the work season. Witnesses for the farms testified that they set the Claimants’ start and stop times, both on a daily basis and in inclement weather. See, e.g., VII-ER-1536-37 (Anaya testimony re: Green Acre); VII-ER-1617 (Farias testimony re: Valley Fruit); III-ER-535-36, VII-ER-1720-21 (Van Pelt testimony re: Green Acre); VII-ER-1741 (Verbrugge testimony re: Valley Fruit). There was also extensive testimony that, as contemplated in the H-2A agreements, the Growers decided where the Claimants as a group would be working and what tasks they would be doing on a daily basis. See, e.g., VII-ER-1720 (Van Pelt testimony re: Green Acre); VII-ER-1616-17 (Farias testimony re: Valley Fruit); VII-ER-1736-37 (Verbrugge testimony that his ranch managers decided); VIII-ER-2049, 2059 (Morford and Verbrugge statements that the Growers were “in the best position to recognize the operational needs on [their] orchards and thus decided what work needed to be done on a daily basis. It was up to Global to decide how to allocate its workers to meet our operational needs.”).

Witnesses from the farms, from Global, and the Claimants also made frequent reference to quotas the Growers set for the Claimants. See, e.g., VII-ER-1738-39 (Verbrugge: Valley Fruit set estimates “based on [] knowledge of how much a certain number of workers it would take to do a certain grouping of trees or an area”); VII-ER-1681 (Schwartz: “Green Acre communicated to me that the industry standard is three to four bins a day,” which was expected of the Thai workers); III-ER-482 (Orian: he had conversations with Morford and Verbrugge, “like with every farmer,” about quotas/production goals for the H-2A workers); III-ER-627 (Promson: he received daily work assignments and quotas directly from the Green Acre farm office); V-ER-1027 (Srinongkhot: “On multiple occasions, Valley Fruit managers instructed me to tell my Thai co-workers to increase our work production and that if we did not meet their daily quotas we would not be given any more work.”).

Finally, witnesses on all sides testified that farm employees were involved in daily supervision and inspection of the Claimants’ work. See, e.g., VIII-ER-2048 (Morford: “In 2004 and 2005 I was in the orchards on almost a daily basis and was able to … inspect the quality of the work that Global performed.”); VIII-ER-2058 (Verbrugge: “I was in the orchards and other fields on virtually a daily basis and was able to … inspect the quality of Global’s work product.”); VII-ER-1557 (Blevins: at both farms the foremen were looking at the quality of the Global employees’ work “every time they were performing work”); V-ER-1150 (Truatnok: “The Green Acre farm owner, Jim, would oversee and inspect the Thai workers’ job performance every 2-3 days for about an hour. He watched the workers to make sure the apples being picked were the right size and color. He would then let the workers know if there was anything that they were doing that was wrong.”); IV-ER-927 (Promson: “The Valley Fruit supervisor checked on the Thai workers’ production two to three times a day.”); IV-ER-724 (Kongpia: “A Valley Fruit supervisor also worked with me and the other Thai workers in the field.… He criticized me and the other Thai workers when we did not pick the right apples.”).

As the district court stated in its Findings of Fact against Global, “Claimants were constantly pressured to work harder and faster always with the threat of return to Thailand without completion of the contract with all of the financial hardship that would cause them and their families.” I-ER-6. Global supervisors called the Claimants derogatory names in Thai, and one Claimant was beaten with a cane by a Global supervisor and retaliated against for grabbing the cane. Id.

There was extensive record evidence that the Growers’ employees knew about, and in some cases participated in, some of the hostile treatment of the Claimants in the orchards. First, both Morford and Verbrugge stated that they were present in the orchards on a near-daily basis during the terms of the H-2A agreements and “[were] able to observe the interaction between Global’s supervisors and Global’s employees, as well as between Global and employees and supervisors of [the farms].” VIII-ER-2048, 2058. See also supra at 24-25.

Many Claimants testified about incidents where either farm employees themselves or Global employees, delivering the message of the farm managers, yelled at them to increase production or face dire consequences, including being sent back to Thailand. See, e.g., IV-ER-850, V-ER-1173-74, 1210 (Metha, Wongworn, Wongkaeo: “Green Acre management wanted us to work faster and faster. On almost a daily basis, Global supervisors like Pranee would yell at my Thai co-workers and me to increase our work production. She threatened us with being not given any more work from Green Acre if we did not meet Green Acre’s daily quotas.”); IV-ER-872 (Nuansri: he “witnessed the farm man[a]gers/supervisors telling the Global supervisors such as Chaiyot [Goodton] to impose increased work production quotas on me and my Thai co-workers”); IV-ER-944 (Ratnarak: “Global supervisors like Chaiyot constantly threatened us with deportation if we failed to meet Green Acre’s production quotas or do what Green Acre wanted us to do.”); IV-ER-927 (Promson: “the Valley Fruit supervisors regularly warned us that Valley Fruit would not hire us again if we did not meet our quota”); V-ER-1063 (Surivong: “Narong told us that the Green Acre farm office threatened to no longer give us work if we failed to meet their daily work quota, and that Global would deport us back to Thailand if Green Acre was not happy with our failure to meet the increased quotas.”).

The Claimants also testified about other types of harsh treatment in the orchards involving the Growers. See, e.g., VIII-ER-1809 (Chuenjaichon: Thai workers were made to carry ladders distances of about five kilometers); IV-ER-812-13, V-ER-1150 (Morford punished Thai workers for improper picking or not meeting quotas by not allowing them to work (and not paying them) for a week); III-ER-592 (Amattat: a “farm supervisor became very angry at me and my Thai co-workers for not pruning properly. This supervisor aggressively snatched away a Thai co-workers shears and angrily demonstrated the proper method.”); IV-ER-742, V-ER-1008 (Krengchai, Sriboran: “On one occasion, the white Green Acre farm owner got mad at us because he though[t] we bruised the apples. He got red in the face.”)

The district court also found vis-à-vis Global that “The Thai workers were given more difficult work and paid less than Latino workers at the same work locations.” I-ER-7. Several Claimants who had specific knowledge of the Mexican workers’ experiences at the farms described the different treatment they received. See, e.g., III-ER-592 (Amattat: the Mexican workers were paid more than the Thai workers for doing less work because the Mexican workers “were paid based on the amount of fruit they picked, while Thai workers were paid by the hour and forced to work faster. The Mexican workers informed me that they were paid $15.00 per box of fruit while Thai workers were paid about 9.00/hr. Mexican workers were paid about $105.00, and on a good day, Thai workers made around $80.00/day.”); IV-ER-927-28 (Promson: “I saw Mexican workers picking fruit from trees with more fruit than the trees me and the other Thai workers were picking from. I also observed that Mexican workers were allowed to pick from smaller trees while Thai’s had to pick from taller trees. This made it more difficult for me and the other Thai workers to reach our production quotas because the Thai workers had to use ladders to pick from higher trees and this slowed us down because: (1) the fruit was spaced further apart; (2) we had to move the ladder from tree to tree; and (3) it was more dangerous because we had to stretch out to pick apples while balancing on the ladder.”); IV-ER-928 (“I know that the trees that Mexican workers were allowed to pick from were easier, and safer than the trees me and the other Thai’s usually worked on because I was allowed to pick from the same trees one day. I was able to pick considerably faster and meet the quota of 6-7 boxes easily.”); V-ER-1065 (Surivong statement that “There were also times when the Thai workers and I were required to work outside when it was raining. However, I did not see any Mexican workers work on rainy days.”); III-ER-679 (Chumphang: “When work was scarce, Mexican workers were allowed to continue working while Thai workers stopped working.”).

Toward the end of their H-2A contracts in November 2005, some of the Claimants related that they ran away from the farms out of fear or desperation to continue earning money to pay their debts. See, e.g., III-ER-594 (Amattat: “I escaped because I had not been paid for three weeks. I sought work elsewhere in the U.S. because I needed to pay off my large debts and support my family back in Thailand.”); III-ER-680 (Chumphang: “I escaped from the farm for fear of being deported back to Thailand or being sent to another farm making less money.”); IV-ER-726 (Kongpia: “Based on the physical threat by Charlie [Blevins] when he appeared at the Thai worker house with guns, repeated threats by Pranee to send us back to Thailand if we did not work hard enough, and their failure to pay me for work that I had performed at Valley Fruit, I felt that I had no choice but to escape….”).

5. Pre-Suit and Litigation History

In April 2006, with the help of the Thai Community Development Center (“Thai CDC”) in Los Angeles, two Claimants who had worked for Global at the Growers’ orchards—Laphit Khadthan and Marut Kongpia—filed charges of discrimination with EEOC. Both Khadthan and Kongpia filed charges against Global; Khadthan also filed a charge against Green Acre, and Kongpia filed one against Valley Fruit. VI-ER-1511 (Khadthan), 1513 (Kongpia). All four charges alleged national origin discrimination, harassment, and retaliation, and checked the box for “continuing action.”

Between 2006 and 2010, EEOC investigated this matter. On August 17, 2010, EEOC issued letters of determination to the charging parties and the Growers stating that the Commission had found reasonable cause to believe the farms had (1) discriminated and/or engaged in a pattern or practice of discrimination against a class of individuals, including the charging parties, based on their race and national origin, (2) retaliated against them for participating in a protected activity, and (3) constructively discharged them.[5] VI-ER-1514, 1517. On September 20, 2010, EEOC issued notices to the charging parties and the farms that EEOC’s efforts to resolve the charges informally through conciliation had been unsuccessful. VI-ER-1520, 1524.

This lawsuit was filed on April 19, 2011. XII-ER-2979. On March 20, 2012, EEOC filed the FAC. XII-ER-2910, 2992. The FAC alleged that, at all relevant times, Green Acre and Valley Fruit had “continuously been [] joint employer[s] with Defendant Global where both generally controlled the terms and conditions of the employment” of the Claimants. XII-ER-2912-13. It also alleged that Global and the farms “jointly controlled the Claimants’ work, housing, transportation, and access to food; jointly supervised the Claimants and/or [the farms] exercised successively higher authority over the Claimants through [their] control of the terms of [their] contracts with Global; jointly determined the pay rates or the methods of payment; jointly held the right, directly or indirectly, to hire, fire, or modify the employment conditions of the workers; and jointly participated in the preparation of payroll and the payment of wages.” I d.

The FAC also alleged that the Claimants “were economically dependent on [the Growers] due to [their] investment in equipment and facilities,” and that they “performed routine tasks that are a normal and integral phase of [the Growers’] production making them dependent on [the Growers’] overall production process.” XII-ER-2912, 2914. Further, it alleged, the farms’ “joint employer liability also stems from [their] ownership or control of the land, housing, transportation, and worksite, which placed [them] in a position to prevent the violations of Title VII alleged herein, even [though] [they] delegated hiring and some supervisory responsibilities to Global.” Id.

The FAC noted that the Farm Labor Contracts between the farms and Global for 2004 and 2005 gave the farms day-to-day control over the Claimants’ work as well as the right to have a representative present at all times for quality control purposes. XII-ER-2936, 2946. Regarding Green Acre, the FAC alleged that Green Acre personnel—including Morford himself—supervised the Claimants, showed them how to do their work, inspected their work, provided equipment, disciplined them, and set the time and location of their work. XII-ER-2937. With respect to Valley Fruit, the FAC pointed to admissions by John Verbrugge that Valley Fruit supervisors directed the Claimants, through their crew leaders, as to where and how to pick fruit, and that he instructed his own employees to monitor the Claimants’ work on a daily basis. XII-ER-2947. It also pointed to Verbrugge’s admission that Valley Fruit provided the Claimants with tools and equipment, and noted statements by the Claimants that confirmed Verbrugge’s admissions. XII-ER-2947-48. Regarding both farms, the FAC alleged that they directly engaged in some discriminatory actions against the claimants and either knew or should have known about Global’s discrimination, due to the Growers’ degree of control over the Claimants and because some of the Claimants complained directly to the Growers’ personnel. XII-ER-2938-39, 2949.

Accordingly, the FAC alleged, both farms were liable for all discriminatory terms and conditions of employment the Claimants experienced while working there, including being made to live in overcrowded, substandard, and infested housing; insufficient food; unsafe and overcrowded transportation; improper deductions from their pay; denial and/or delay of pay; long periods of no work; being made to work harder and longer than the Mexican workers; being held as a captive workforce and threatened with deportation if they spoke to outsiders, tried to escape, or complained; and verbal harassment. XII-ER-2939-45, 2950-57. It also alleged separately that “a pattern and practice of participating in or allowing discrimination, harassment, retaliation, and/or constructive discharge persisted at [the farms] for the durations of [their] contracts with Global from 2004 through 2005.” XII-ER-2946, 2957.

The FAC contained four claims for violations of Title VII against Global and the farms: (1) pattern or practice of discriminatory treatment because of national origin, race, retaliation, and/or constructive discharge under 42 U.S.C. §§ 2000e-2(a) and 2000e-3(a); (2) hostile work environment/harassment under 42 U.S.C. § 2000e-2(a); (3) discriminatory terms and conditions of employment under 42 U.S.C. § 2000e-2(a); and (4) retaliation for engaging [in] protected activity under 42 U.S.C. § 2000e-3(a). XII-ER-2958-65. It sought monetary and injunctive relief, including backpay and reinstatement, and requested a jury trial. XII-ER-2965-69.

C. District Court’s Pertinent Decisions

1. Order Granting in Part the Growers’ Motions to Dismiss (R.178)

On July 27, 2012, the district court ruled on the Growers’ Motions to Dismiss the FAC on the grounds that EEOC had failed adequately to plead: (1) a joint employment relationship between the farms and Global or (2) that the Claimants had suffered an adverse employment action under Title VII on the basis of their race or national origin. I-ER-162-63. The court held that the FAC plausibly alleged a joint employment relationship between each Grower and Global vis-à-vis the Claimants only as to “orchard-related matters.” I-ER-163.

The court found that there were no facts alleged to support a plausible finding of joint employment regarding “non-orchard-related matters,” including recruitment, transportation, subsistence and housing, or “paycheck issues.” I-ER-164. The court emphasized that the H-2A Agreements between Global and the Growers identified Global as the “employer” and the Growers as the “clients” and “placed the responsibility for recruiting and providing the Claimants with housing, transportation, and subsistence on Global….” I-ER-164-65. Thus, the court concluded, each Grower was only plausibly liable for any Title VII violations that it engaged in at its orchard. I-ER-165.

The court then found that the FAC’s orchard-related allegations plausibly stated hostile work environment and constructive discharge claims (and related pattern-and-practice claims) based on the Claimants’ race or national origin against each of the Growers. I-ER-166. It cautioned, however, that EEOC could not support its claims by arguing that the Growers failed to provide the Claimants with the amount of work Global promised them or that the Claimants were forced to stay at the orchards unnecessarily long. Id. Lastly, the court found that the FAC failed to allege facts identifying an “adverse employment action” based on national origin, and dismissed that claim from the suit. I-ER-167-68.

2. Order on EEOC’s Motions to Compel Discovery Responses From the Growers (R.460)

On January 15, 2014, the district court ruled on EEOC’s motions to compel responses from the Growers to EEOC’s written discovery requests of August 13, 2012. In relevant part, the court addressed the Growers’ challenge to those requests pertaining to their knowledge of non-orchard-related incidents and Global’s alleged misconduct, which, according to the court, pertained to the EEOC’s theory of joint employer liability. I-ER-144-45. The court explained,

[F]or an entity to be held liable under Title VII that entity must 1) be an “employer” of the plaintiff and 2a) have discriminated against the plaintiff by its own conduct, or 2b) knew or should have known of a joint employer’s discriminatory conduct against the plaintiff in a matter within the entity’s control, and the entity failed to take measures within its control to correct the joint employer’s discriminatory conduct.

I-ER-145.

The court then ruled on each of EEOC’s requests. It denied each request seeking information pertaining to a Grower’s involvement in “non-orchard-related” matters, including obtaining H-2A visas or Labor Certifications, efforts to recruit non-H-2A workers, procedures relating to H-2A workers on Growers’ premises, or information about worker housing that a Grower “owned, leased, rented, or otherwise controlled.” I-ER-148-55.

3. Order Granting the Growers’ Summary Judgment Motion (R.582)

On May 28, 2014, the district court granted the Growers summary judgment on EEOC’s remaining claims against them. Beginning with the Growers’ liability as joint employers of the Claimants for orchard-related Title VII violations, the court stated that the standard “has been adopted from the employee-versus-independent contractor setting,” and laid out the eleven-factor test “used to determine whether an individual is an employee or an independent contractor for purposes of Title VII.” I-ER-99 (quoting Murray v. Principal Fin. Grp., 613 F.3d 943, 945-46 (9th Cir. 2010) (quoting Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323 (1992))). Applying this test, the court found that EEOC put forward sufficient evidence to support a jury finding in its favor on joint employment as to orchard-related matters. I-ER-100-03.

The court then found, however, that EEOC failed to adduce sufficient evidence to prove the merits of the Title VII claims against the Growers. I-ER-104. Beginning with the hostile work environment claims, it ruled that an individualized assessment was required for each Claimant under § 706 of Title VII. I-ER-104-05. The court acknowledged that it could consider the “totality of the circumstances, including in limited respects Global’s non-orchard related conduct,” but emphasized that its ultimate determination was focused on whether a Grower 1) subjected a Claimant to “unwelcome verbal or physical conduct based on his race or national origin that was sufficiently severe and pervasive to alter the employment conditions and create an abusive working environment, or 2) knew or should have known of” such conduct by Global and “failed to take corrective measures within its control.” I-ER-106-07 (emphasis added).

The court found that EEOC failed to meet its burden of proof as to any Claimant. I-ER-107. It stated that there was no evidence that a Grower owner or manager engaged in physical conduct with any of the Claimants, or that the Growers’ verbal discussions with the Claimants, which all occurred through Thai interpreters, were either objectively or subjectively hostile and based on the Claimants’ race or national origin. Id. The court reasoned that, because the Growers and their employees did not speak Thai, they could not be liable for any hostile verbal treatment of the Claimants by Global personnel, and physical incidents between Global employees and the Claimants were neither witnessed by nor reported to a Grower. I-ER-109-10.

Next, the court addressed EEOC’s pattern-and-practice hostile work environment claim. According to the court, EEOC alleged that the Growers’ “standard operating practice” of abusive working conditions involved 1) setting unreasonable production quotas and pushing the Claimants to meet them by means including threats of deportation back to Thailand; 2) inspecting the Claimants’ work and reprimanding them for not picking fruit properly or not meeting quotas; 3) assigning easier jobs to Hispanic workers; and 4) ignoring Global’s abusive and discriminatory conduct. I-ER-111-12. The court found insufficient evidence to support any of EEOC’s allegations. I-ER-112-13.

According to the court, most of the conditions of which the Claimants complained pertained to housing and transportation, which were not within the Growers’ control. I-ER-112. Although the court noted EEOC’s evidence that Valley Fruit owned one of the houses, it stated there was no evidence that the Claimants living there believed the substandard conditions “were provided because of their race or national origin,” or that the condition of the house was Valley Fruit’s “standard operating procedure.” I-ER-112-13. Finally, the court observed, although the Growers knew and should have known about Global’s citations from the State of Washington for wage, safety, health, and farm labor licensing violations, there was no evidence that those citations were based on the Claimants’ race or national origin. I-ER-113-14.

Turning to EEOC’s constructive discharge claims, the court observed, “the EEOC … must prove that conditions were so intolerable that a reasonable person must leave the job.” I-ER-115 (citing Wallace v. City of San Diego, 479 F.3d 616, 634 (9th Cir. 2007)). Without further record analysis, the court held, “for the reasons set forth above,” the evidence failed to establish a triable dispute of fact as to whether the EEOC’s claims on behalf of the remaining constructive discharge Claimants met that standard. Id.

4. Order Granting the Growers’ Joint Motion for Attorney’s Fees (R.614)

On March 19, 2015, the district court granted the Growers their attorney’s fees as prevailing parties under Title VII. The court first addressed whether it could review EEOC’s pre-suit actions in connection with the Growers’ attorney’s fees motion. It noted the Supreme Court’s language in Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421-22 (1978), emphasizing that “a district court is to ‘resist the understandable temptation to engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation.’” I-ER-63-64.

The court held that it “must consider the totality of the information possessed by the EEOC when it filed the lawsuit in order to determine if the filing was reasonable, frivolous, or without foundation,” including “what the EEOC learned during its investigation, prior to its reasonable-cause determination, and during its conciliation process and thereafter.” I-ER-64. After reviewing the history of EEOC’s investigation, efforts at conciliation, and litigation of the case, the court deemed the investigation “inadequate,” and EEOC’s lawsuit against the Growers “baseless, unreasonable, and frivolous” as a result. I-ER-83. According to the court, the Growers’ counsel’s correspondence with EEOC throughout the investigation should have put EEOC on notice of the deficiencies in its investigation and subsequent letters of determination. I-ER-85. Nonetheless, the court stated, EEOC made conciliation demands for $300,000 per class member, totaling in excess of nine million dollars in monetary damages per Grower, and declined to consider the Growers’ non-damages offers of conciliation. I-ER-85-86.

The court rejected EEOC’s argument that it had a factual basis for its Title VII claims against the Growers. Id. According to the court, “[t]he sparse investigation conducted by the EEOC before filing the lawsuit did not present any information that would lead the EEOC to reasonably conclude that” the Growers were liable either directly or as joint employers for discrimination against the Claimants. I-ER-87. “The EEOC was aware of the contractual division of responsibilities between Global and the [Growers] and that the information provided by the Thai claimants as to claimed discriminatory practices fell within matters that were Global’s responsibility.” I-ER-87-88.

The court found, further, that EEOC frivolously sought backpay and reinstatement for the Claimants in the complaint because it knew or should have known by April 2011 that Global was no longer providing H-2A guest workers to American farms and many of the Claimants were not lawfully in the United States. I-ER-89 (citing EEOC v. Propak Logistics, 746 F.3d 145, 151 (4th Cir. 2014)).

STANDARDS OF REVIEW

This Court reviews de novo both an order granting a motion to dismiss and a grant of summary judgment. See Castle v. Eurofresh, Inc., 731 F.3d 901, 905-06 (9th Cir. 2013). It “review[s] for abuse of discretion the district court’s denial of Plaintiffs’ motion to compel discovery.” Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002).

This Court reviews an award of attorney’s fees under Title VII for abuse of discretion. EEOC v. Bruno’s Restaurant, 13 F.3d 285, 287 (9th Cir. 1993). “A court may abuse its discretion if it uses incorrect legal standards, which we review de novo.” Id. “We accept the district court’s factual findings unless they are clearly erroneous.” Id.

SUMMARY OF ARGUMENT

The district court made three major errors in its handling of this case that warrant reversal. First, the court erred in partially dismissing the FAC based on its conclusion that the Growers could not be liable as joint employers of the Claimants for any alleged “non-orchard-related” Title VII violations. As this Court has repeatedly observed, the fundamental question in joint employer matters is whether one or more entities, as a matter of “economic reality,” share control over the terms and conditions of a worker’s employment—not what the abstract terms of a contract might say. Here, the court deferred almost completely to the terms of Global’s H-2A Agreement with the Growers and failed to apply this Court’s “economic reality” test to the allegations in the FAC. In so ruling, the court made a fundamental error of law that would have repercussions throughout this litigation, as it was the basis for repeated denials of otherwise relevant discovery, rulings on how EEOC could prove its case, and, ultimately, an award of attorney’s fees to the Growers. The court further erred in holding that the FAC did not adequately plead an independent Title VII disparate treatment claim.

Second, the district court erred in granting summary judgment to the Growers on EEOC’s “orchard-related” hostile work environment and constructive discharge claims. It applied the wrong legal standard to the hostile work environment claim, requiring the Claimants’ treatment to be both “severe and pervasive,” and contravened Supreme Court precedent in applying a heightened burden to EEOC’s circumstantial evidence of discrimination. The court also failed to view the record evidence in the light most favorable to EEOC, crediting the Growers’ testimony over the Claimants’ contrary accounts in several respects.

Finally, the district court abused its discretion in awarding the Growers their attorney’s fees under Christiansburg because this litigation was not frivolous, unreasonable, or without foundation. The court erred, first, in reviewing the sufficiency of the EEOC’s investigation of the Claimants’ charges as a basis for its fees award. Apart from determining whether an investigation and conciliation occurred, EEOC’s presuit activities are not subject to judicial review for “sufficiency” as a matter of law. The court also abused its discretion in concluding that EEOC’s joint employer theory was frivolous and that EEOC “sought frivolous remedies.” Moreover, EEOC had a valid and reasonable evidentiary foundation for pursuing all aspects of this litigation.

ARGUMENT

I. The District Court Erred in Partially Dismissing the First Amended Complaint.

A. The FAC Adequately Pled that the Growers Were Liable as Joint Employers of the Claimants as to “Non-Orchard-Related” Matters.

As described supra at 32-33, the FAC alleged that the Growers exercised joint control over the Claimants’ “housing, transportation, and access to food,” “jointly determined the pay rates or the methods of payment,” “jointly held the right, directly or indirectly, to hire, fire, or modify the employment conditions of the workers,” and “jointly participated in the preparation of payroll and the payment of wages.” XII-ER-2912-13. It also alleged that the Claimants “performed routine tasks that are a normal and integral phase of [the Growers’] production making them dependent on [the Growers’] overall production process,” and that the farms’ “joint employer liability also stems from [their] ownership or control of the land, housing, transportation, and worksite, which placed [them] in a position to prevent the violations of Title VII alleged herein….” XII-ER-2912-14.

Nonetheless, the court stated that no alleged facts supported a plausible finding that the Growers had any responsibility or control over the Claimants’ transportation, subsistence, or housing. I-ER-164. The court relied on the contents of the H-2A agreements and the H-2A Compliance Review Checklist, along with the absence of allegations in the FAC about general practices—of either the Growers or the industry—regarding the treatment of seasonal employees. I-ER-164-65.

In reaching this conclusion, the court misunderstood and misapplied this Court’s legal standard on joint employment. This Court explained its approach to joint employment under Title VII in EEOC v. Pacific Maritime Association, 351 F.3d 1270 (9th Cir. 2003). The Pacific Maritime Court began from the premise that “[t]wo or more employers may be considered joint employers if both employers control the terms and conditions of employment of the employee.” I d. at 1275 (internal citation and quotation marks omitted).

The Court declined to give a single definition of “terms and conditions of employment,” noting instead that “various factors have been suggested in the collective experience of the judiciary and governmental agencies.” Id. Among the examples the Court gave were its analysis under the M igrant and Seasonal Agricultural Worker Protection Act (“AWPA”) in Torres-Lopez v. May, 111 F.3d 633, 646 (9th Cir. 1997), based on the “economic reality” test from Bonnette v. California Health and Welfare Agency, 704 F.2d 1465 (9th Cir. 1983); and the Third Circuit’s analysis in NLRB v. Browning-Ferris Industries of Pennsylvania, 691 F.2d 1117, 1122-23 (3d Cir. 1982) (“‘[T]he “joint employer” concept recognizes that the business entities involved are in fact separate but that they share or co-determine those matters governing the essential terms and conditions of employment.’”). Id. at 1275-77. See also id. at 1277 (“Logically, before a person or entity can be a joint employer, it must possess the attributes of an employer to some degree.”).

In this case, reasonably enough, the district court purported to rely on the “economic reality”-based standard in Torres-Lopez, a case analyzing whether the farms in that case were joint employers of the migrant farmworker plaintiffs under the Fair Labor Standards Act and AWPA. I-ER-163-64. But the actual standard in Torres-Lopez is much different from that applied by the district court, involving consideration of multiple factors, and it makes it clear that it is not the abstract terms of a contract, but rather the parties’ relationship in reality, that ultimately determines joint employment status. See Torres-Lopez, 111 F.3d at 639-40 (discussing factors). As the Torres-Lopez Court put it:

[T]he … court ignored a fundamental principle behind the joint employment doctrine: that a worker may be employed by more than one entity at the same time.… [T]he inquiry must focus on the economic reality of the particular relationship between the farmworker and the alleged joint employer. See Antenor [v. D & S Farms], 88 F.3d [925, 932 (11th Cir. 1996)] (“[T]he question in ‘joint employment’ cases is not whether the worker is more economically dependent on the independent contractor or the grower, with the winner avoiding responsibility as an employer.”).

See also, e.g., Solis v. Laurelbrook Sanitarium & Sch., 642 F.3d 518, 522 (6th Cir. 2011) (noting that the nature of the employment relationship “is not fixed by labels that parties may attach” but instead by the “economic reality” of their affiliation); EEOC v. Skanska USA Bldg., 550 F. App’x 253 (6th Cir. 2013) (reversing summary judgment in favor of a general contractor putative joint employer, in part because it supervised employees despite a contractual term saying the subcontractor would hire a supervisor); see generally Tony & Susan Alamo Found. v. Sec’y of Labor, 471 U.S. 290, 301 (1985) (explaining that the economic reality of the parties’ relationship, rather than the labels they apply, determine whether an entity is an employer).

As the district court noted, being a joint employer does not itself establish Title VII liability. I-ER-163-64; see also EEOC v. Global Horizons, 860 F. Supp. 2d 1172, 1183 (D. Haw. 2012)). Rather, “[j]oint employer status merely establishes the employment relationship necessary for Title VII protections to apply to the [Grower] Defendants.” Id. at 1184 (citing Anderson v. Pac. Maritime Ass’n, 336 F.3d 924, 930 (9th Cir. 2003)). The standard for Title VII liability of a joint employer is whether that entity knew or should have known of discrimination by another entity and failed to take corrective action within its control. See Enforcement Guidance: Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms (Dec. 3, 1997), 1997 WL 33159161, at *11; see also Global Horizons, 860 F. Supp. 2d at 1183-84 (citing cases).

The FAC alleged that the Growers “likely knew or should have known of minimum housing standards applicable to farms” using workers under the Department of Labor’s H-2A guest worker program, and knew or should have known of other program requirements regarding the Claimants, but failed to ensure compliance with those requirements and, in fact, knew or should have known they were being violated. XII-ER-2929-33, 2935. The FAC also described the deplorable living conditions and unsafe transportation to which the Claimants were subjected while working at the Growers’ farms, and stated that the Claimants complained about these issues directly to the Growers. XII-ER-2938-39, 2949. In addition, the FAC alleged, when the Growers were informed that Global was under investigation for violating federal and state labor laws, they were put on notice of the violations and should have investigated the living and transportation conditions to which the Claimants were subjected. XII-ER-2938-39, 2949-50.

Viewed under the proper standard, the allegations in the FAC were sufficient to state a plausible claim that (1) the Growers were joint employers of the Claimants as to “non-orchard-related” matters, including housing, transportation, and pay, and (2) they knew or should have known about either their own Title VII violations or Global’s, but failed to take corrective action within their control. The Supreme Court has explained that a complaint need only provide “sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citation omitted), with allegations that “raise a right to relief above the speculative level,” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). So long as the complaint contains sufficient facts to spell out a claim for relief, it must survive a motion to dismiss. Twombly, 550 U.S. at 556; Sheppard v. David Evans & Assocs., 694 F.3d 1045, 1048-49 (9th Cir. 2012) (noting that a “short and plain statement” is sufficient to state a valid claim for relief, and a complaint need not contain “detailed factual allegations” (internal citations omitted)). The allegations in the FAC readily meet the Iqbal/Twombly standard, and the district court erred in holding otherwise.

B. The FAC Sufficiently Pled a Plausible National-Origin-Based Disparate Treatment Claim.

The district court held that EEOC failed to allege facts that “identify a discrete adverse employment action” with respect to its national origin discrimination claim against the Growers. I-ER-168. According to the court, the only adverse actions EEOC identified were “yelling and intolerable working conditions,” which were not adverse actions for purposes of a disparate treatment claim. Id.

The district court’s characterization of the FAC is simply wrong. The FAC made numerous, specific allegations regarding how the Claimants were treated differently from non-Thai workers, often directly related to the orchards. With respect to Green Acre, the FAC alleged that the non-Thai workers were given more frequent breaks than the Thai workers, that they were given priority over the Thai workers when work was slow or there was not enough work, that they were given easier jobs than the Thai workers, that they could leave whenever they wished while the Thai workers could not, and that only the Thai workers were made to work in the rain. XII-ER-2942. With respect to Valley Fruit, the FAC alleged that the non-Thai workers were given better and easier assignments (and described them in detail), that they could leave whenever they wished while the Thai workers could not, that only the Thai workers had to work in the hottest weather, that the Thai workers had to finish whatever assignments the other workers did not finish, and that only the Thai workers had to meet quotas. XII-ER-2954. The FAC also alleged that, at both farms, the Claimants experienced “improper deductions, denial and/or delay of payment of wages for work performed, and long periods of no work,” while the non-Thai workers did not. XII-ER-2941, 2952.

These allegations are far more numerous and detailed than “yelling and intolerable working conditions,” and they unquestionably qualify as adverse actions for purposes of a Title VII disparate treatment claim. See, e.g., Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir. 2008) (“[A]n adverse employment action is one that ‘materially affect[s] the compensation, terms, conditions, or privileges of … employment.’ We have held that assigning more, or more burdensome, work responsibilities, is an adverse employment action.”) (internal citations omitted). The district court erred in dismissing this claim as well.

C. The District Court Abused its Discretion in Denying EEOC’s Discovery Motions Pertaining to Non-Orchard-Related Issues.

Because the district court erred as a matter of law in applying the wrong standard to the joint employer issue, and in removing the entire question of the Growers’ liability for non-orchard-related violations from the case prematurely, it necessarily abused its discretion in denying EEOC’s subsequent motions for discovery on this issue. “A district court abuses its discretion where it applies the wrong legal standard or where its application of the correct legal standard was (1) illogical, (2) implausible, or (3) without support in inferences that may be drawn from the facts in the record.…” Resilient Floor Covering Pension Trust Fund Bd. of Trustees v. Michael’s Floor Covering, 801 F.3d 1079, 1088 (9th Cir. 2015) (internal citations and quotation marks omitted).

Moreover, the district court’s error was one that “clear[ly] . . . result[ed] in actual and substantial prejudice to” EEOC. See Hallett, 296 F.3d at 751. The court’s ruling not only precluded EEOC from making any factual showing as to the Growers’ involvement in the non-orchard-related aspects of the case, but it also fed directly into the district court’s ruling that this lawsuit was frivolous and its concomitant imposition of attorney’s fees against EEOC. See I-ER-87-88 (“The EEOC was aware of the contractual division of responsibilities between Global and the [Growers] and that the information provided by the Thai claimants as to claimed discriminatory practices fell within matters that were Global’s responsibility.”). The district court’s erroneous ruling was an abuse of discretion that had dire consequences for the rest of the litigation, and this Court should reverse it.

II. The District Court Erred in Granting Summary Judgment to the Growers.

A. The District Court Erred in Granting Summary Judgment on EEOC’s Hostile Work Environment Claims.

1. The district court misstated and misapplied the legal standard for a hostile work environment under T itle VII.

As this Court recently reiterated, an employer is liable for creating a hostile work environment under Title VII where the employee proves (1) that he was subjected to verbal or physical conduct of a harassing nature, (2) that this conduct was unwelcome, and (3) that the conduct was sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment. Arizona ex rel. Horne v. Geo Group, 816 F.3d 1189, 1206 (9th Cir. 2016), cert. denied, 2017 WL 69195 (Jan. 9, 2017).

Here, the district court stated multiple times that in order to establish a hostile work environment claim, EEOC had to demonstrate that the conduct to which the Claimants were subjected was both “severe and pervasive.” I-ER-105-07. As this Court has observed repeatedly over the years, this is not the correct legal standard in this (or any other) circuit. See, e.g., Geo Group, 816 F.3d at 1206 (conduct must be “sufficiently severe or pervasive…”) (emphasis added); Manatt v. Bank of Am., 339 F.3d 792, 799 (9th Cir. 2003) (affirming summary judgment where “conduct was neither severe nor pervasive enough to alter the conditions of Manatt’s employment”). The distinction is an important one. See, e.g., Harvill v. Westward Commc’ns, LLC, 433 F.3d 428, 435 (5th Cir. 2005) (“[T]he requirement that a plaintiff establish that reported abusive conduct be both severe and pervasive in order to be actionable imposes a more stringent burden on the plaintiff than required by law.”).

While the district court did use the “severe or pervasive” language a few times later in the opinion (I-ER-109, 111), the actual analysis it undertook did not apply the correct, disjunctive standard. Rather, the court simply concluded—based on a truncated view of the record—that the Claimants’ interactions with Global and Growers’ personnel in the orchards did not involve conduct that was “sufficiently severe to create an abusive working environment.” I-ER-107. Given the record evidence that the hostile conditions the Claimants endured in the orchards occurred frequently, if not daily, see supra at 26-27, the district court’s total failure to assess the pervasiveness of the harassing conduct was not only wrong as a matter of law but inevitably led to an incorrect conclusion on the merits.

2. The court failed to view the evidence in the light most favorable to EEOC as the nonmoving party.

The district court also erred fundamentally in failing to view the record evidence in the light most favorable to EEOC, as required on summary judgment, and in relying overly on the Growers’ version of events. For example, the court stated repeatedly that there was no evidence of a connection between the Growers’ treatment of the Claimants and their national origin. I-ER-107, 111-14. But a reasonable jury could find such a connection in the testimony of Jose Cuevas, who described conversations between Orian and the Growers about singling out Thai workers for their compliance. See supra at 6; VII-ER-1562-63, 1568. Viewed in this light, a reasonable jury could readily connect the Claimants’ national origin to their extensive testimony about being subjected to heavy quotas and assigned the most unpleasant tasks in the orchards on the assumption that they would not complain.

The district court also emphasized that some Claimants—namely, Marut Kongpia and Laphit Khadthan—testified that none of the Growers’ personnel ever treated them badly. I-ER-109. Even if so, their individual testimony does not absolve the Growers from liability under Title VII for mistreatment of other Claimants. See, e.g., Connecticut v. Teal, 457 U.S. 440, 455 (1982) (“It is clear that Congress never intended to give an employer license to discriminate against some employees … merely because he favorably treats other members of the employees’ group.”); Diaz v. Am. Tel. & Tel., 752 F.2d 1356, 1360 (9th Cir. 1985) (“Title VII’s focus on the rights of individual members of protected classes is ‘unambiguous.’”) (internal citation omitted). And, as described above, the summary judgment record reflects that other Claimants testified otherwise. See supra at 26-28; III-ER-592; IV-ER-742, 812-13; V-ER-1008, 1150. Moreover, to the extent the court may simply have meant to infer, based on Kongpia’s and Khadthan’s testimony, that the other Claimants were not so mistreated, a jury might be entitled to make such an inference, but on summary judgment the court is not. Davis, 520 F.3d at 1092 n.7 (“On summary judgment all inferences must be drawn in favor of the moving party.”).

As the district court itself acknowledged, the Growers could also be held liable for Global’s orchard-related harassing conduct of which they knew or should have known and failed to take corrective action within their control.[6] I-ER-103, 106. But, again, in reviewing that conduct, the court failed to view the evidence in the light most favorable to EEOC. For example, the court simply dismissed the notion that the Growers could be liable for anything that was said to the Claimants in Thai because their personnel did not speak Thai. I-ER-109-110. However, the record evidence was more than sufficient to support a jury finding that the Growers’ personnel were in the orchards on a daily basis and observed the interactions between Global employees and the Claimants. See supra at 24-25; IV-ER-724, 927; V-ER-1150; VII-ER-1557; VIII-ER-2048, 2058. While the Growers’ employees may not have understood Thai, a reasonable jury could find that they would have observed the tone of the interactions, including whether the Global employees were screaming at the Claimants. If the Growers were aware that the Global employees were yelling at or otherwise harassing the Claimants in the orchards, even if they did not know exactly what was being said, a jury could readily find that corrective action would have been well within the Growers’ control.

The Claimants also testified about numerous instances where Global employees implemented frequent hostile or harassing directives from the Growers—to work harder and faster, to increase their quotas, or to work harder than the Mexicans. See supra at 26-27; IV-ER-850, 872, 927, 944; V-ER-1063, 1173-74, 1210. A reasonable jury readily could find that the Growers could simply have stopped issuing these directives to the Claimants through Global, and accordingly that they were liable for them.

The district court further erred in giving short shrift to EEOC’s evidence of how the Thai workers were mistreated in the orchards compared with their Mexican counterparts. I-ER-112-13. The court dismissed the Claimants’ testimony on this issue as “too generalized to establish a triable dispute of fact,” pointing to Coghlan v. American Seafoods Co., 413 F.3d 1090, 1095 (9th Cir. 2005), for the proposition that “when the plaintiff relies on circumstantial evidence, that evidence must be ‘specific and substantial’ to defeat the employer’s motion for summary judgment.” I-ER-113.

The court was wrong, both about the record and about the law. As to the record, the court relied nearly exclusively on Morford’s and Verbrugge’s declarations (albeit without citing them), and discounted or ignored the Claimants’ detailed and specific personal testimony and statements that offered contrary accounts. Compare, e.g., I-ER-95 (uncited information taken from farm owners’ declarations) with III-ER-592, 679; IV-ER-927-28; V-ER-1065; see supra at 28-30. While a jury might choose which version of the story to credit, the choice was not the district court’s to make on summary judgment.

Regarding the law, the district court erred by continuing to perpetuate the mistaken notion, already repudiated by the Supreme Court, that circumstantial evidence is somehow an inferior form of proof. As this Court has observed, “It is well established that a Title VII plaintiff may prove a defendant’s discriminatory motive through circumstantial evidence alone. . . . Evidence that one or more similarly situated individuals outside of the protected class received more favorable treatment can constitute sufficient evidence of discrimination for a Title VII plaintiff to prevail.” Beck v. United Food & Commercial Workers Union, Local 99, 506 F.3d 874, 883 (9th Cir. 2007) (internal citations omitted). The Coghlan “specific and substantial” line of precedent is fundamentally incompatible with the Supreme Court’s mandate in Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003), to give direct and circumstantial evidence the same weight. See id. at 100 (“The reason for treating circumstantial and direct evidence alike is both clear and deep rooted: Circumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence.”) (internal citations and quotation marks omitted); see also, e.g., France v. Johnson, 795 F.3d 1170, 1175 (9th Cir. 2015) (“There is some question whether [the Coghlan] distinction for circumstantial evidence is valid after the Supreme Court’s Costa decision which placed direct and circumstantial evidence on an equal footing. Indeed, this ‘specific and substantial’ standard ‘is tempered by our observation that a plaintiff’s burden to raise a triable issue of pretext is hardly an onerous one.’ We have repeatedly held that it should not take much for a plaintiff in a discrimination case to overcome a summary judgment motion.”) (internal citations omitted).

Thus, in concluding that the treatment the Claimants endured in the Growers’ orchards was not “severe” (a point EEOC does not concede) without ever analyzing its pervasiveness, in drawing repeated evidentiary inferences in the Growers’ favor, and in discounting the probative value of EEOC’s circumstantial evidence, the district court erred in granting summary judgment on EEOC’s hostile work environment claims. The evidence is sufficient to support a reasonable jury finding that the Growers, either themselves or through Global, subjected the Claimants to harassing conduct because of their national origin that was both unwelcome and sufficiently severe or pervasive to alter the conditions of their employment and create an abusive working environment.

B. The District Court Erred in Granting Summary Judgment on EEOC’s Constructive Discharge Claims Based on its Hostile Work Environment Ruling.

The district court granted summary judgment to the Growers on the seven remaining constructive discharge claims, without further analysis, on the basis that, since EEOC could not establish a genuine dispute of material fact regarding hostile work environment, a fortiori, it could not do so as to constructive discharge. I-ER-115. “The constructive-discharge doctrine contemplates a situation in which an employer discriminates against an employee to the point such that his working conditions become so intolerable that a reasonable person in the employee’s position would have felt compelled to resign. When the employee resigns in the face of such circumstances, Title VII treats that resignation as tantamount to an actual discharge.” Green v. Brennan, 136 S. Ct. 1769, 1776-77 (2016) (internal citation and quotation marks omitted); see also, e.g., Brooks v. City of San Mateo, 229 F.3d 917, 930 (9th Cir. 2000).

For all the reasons discussed supra at 59-67, the district court’s analysis of the hostile work environment in this case was fundamentally and deeply flawed. It cut off all discovery and development of the case regarding the Growers’ liability for the mistreatment of the Claimants outside the orchards based on a mistaken understanding of the joint employer theory under Title VII; it failed to consider pervasiveness at all; and it discounted evidence of the Claimants’ mistreatment in the orchards because it was “circumstantial” and did not come from the Growers.

Furthermore, viewing the evidence in the record in the light most favorable to EEOC, and considering the totality of the circumstances, a reasonable jury could readily find that the conditions the seven Claimants endured at the farms were “so intolerable that a reasonable person in the employee’s position would have felt compelled to resign.” See supra at 30-31; see also III-ER-504-05, 552-53; VIII-ER-1856. This Court should vacate the district court’s decision on this point.

III. The District Court Erred in Awarding the Growers Attorney’s Fees Under C hristiansburg.

As the district court observed, the standard for awarding attorney’s fees to a prevailing defendant in a Title VII action was established in Christiansburg. “[F]ees should be granted to a defendant in a civil rights action only upon a finding that the plaintiff’s action was frivolous, unreasonable, or without foundation.” Kohler v. Bed Bath & Beyond of Cal., 780 F.3d 1260, 1266 (9th Cir. 2015) (internal citation and quotation marks omitted).

In assessing frivolousness, the district court must avoid the “temptation to engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation,” because doing so would “discourage all but the most airtight claims,” hampering Congress’s desire for vigorous enforcement of Title VII. Bruno’s Rest., 13 F.3d at 287 (quoting Christiansburg, 434 U.S. at 421-22). “Applying the Christiansburg frivolousness standard, we have held that ‘[a] case may be deemed frivolous only when the result is obvious or the … arguments of error are wholly without merit.’” C.W. v. Capistrano Unified Sch. Dist., 784 F.3d 1237, 1245 (9th Cir. 2015) (quoting Karam v. City of Burbank, 352 F.3d 1188, 1195 (9th Cir. 2003)).

Preliminarily, we note that, should the Commission prevail in this appeal on the merits, whether the Growers are “prevailing parties” would be in question, requiring remand to the district court. See generally CRST Van Expedited v. EEOC, 136 S. Ct. 1642, 1646 (2016). In any case, the district court abused its discretion in awarding attorney’s fees to the Growers in at least two respects. First, the court erred in reviewing the scope and sufficiency of EEOC’s administrative investigation of the charges in this case, which are not subject to judicial review and may not form the basis for an award of fees under Christiansburg. Second, the court erred in ruling that the litigation itself was frivolous, unreasonable, or without foundation—including EEOC’s theory of joint employer liability, the remedies sought on the Claimants’ behalf, and the merits of the claims themselves.

A. The District Court Erred in Awarding Fees Based on an Assessment of the Sufficiency of the Commission’s Investigation.

In concluding that an inadequate investigation led EEOC to pursue Title VII claims against the Growers that “were baseless, unreasonable, and frivolous,” I-ER-83, the district court impermissibly focused on the adequacy of EEOC’s presuit activities. Under Title VII’s statutory scheme, judicial review of the sufficiency of EEOC investigations is inappropriate.

Title VII requires EEOC to investigate charges of discrimination against employers. 42 U.S.C. § 2000e-5(b). If it finds a charge has merit, EEOC must attempt to end the discrimination through “conference, conciliation, and persuasion.” 42 U.S.C. §§ 2000e-5(b), (f)(1). As the Supreme Court recently made clear in Mach Mining v. EEOC, 135 S. Ct. 1645 (2015), courts play a very limited role in reviewing the Commission’s presuit activities. There, the Court held EEOC’s conciliation activities are reviewable only to ensure the agency has given the employer a chance to discuss and correct the discriminatory practice. Id. at 1653, 1656. A more searching review, the Court said, would interfere with the discretion and flexibility EEOC needs to eliminate unlawful workplace discrimination effectively. Id. at 1654-55; see also Geo Group, 816 F.3d at 1198 (noting limited nature of review of EEOC’s presuit activities).

The same rationale mandates only minimal review of EEOC’s other presuit activities, including investigation. As numerous circuits have held, a reviewing court may determine only whether EEOC investigated to see if reasonable cause exists to believe a charging party’s allegations against an employer, not whether that investigation met some subjective standard of adequacy. See EEOC v. Sterling Jewelers, 801 F.3d 96, 101 (2d Cir. 2015) (“The sole question for judicial review is whether the EEOC conducted an investigation.… [C]ourts may not review the sufficiency of an investigation—only whether an investigation occurred.”), cert. denied, 137 S. Ct. 47 (Oct. 3, 2016); Serrano v. Cintas Corp., 699 F.3d 884, 904 (6th Cir. 2012) (“[I]t is inappropriate for a district court to inquire into the sufficiency of the Commission’s investigation.” (citation omitted)); EEOC v. Caterpillar, Inc., 409 F.3d 831, 832-33 (7th Cir. 2005) (rejecting defendant’s argument that the court may review the scope of the EEOC’s investigation to assess permissible scope of complaint); Newsome v. EEOC, 301 F.3d 227, 231 (5th Cir. 2002) (noting that “the nature and extent of [EEOC] investigation[s] are discretionary”); EEOC v. Keco Indus., 748 F.2d 1097, 1100 (6th Cir. 1984) (“[T]he nature and extent of an EEOC investigation into a discrimination claim is a matter within the discretion of that agency.”).

Allowing courts to second-guess EEOC investigations would impose precisely the sort of “extra procedural requirements” the Court rejected in Mach Mining. 135 S. Ct. at 1655. It would burden the courts and EEOC unnecessarily by “‘effectively mak[ing] every Title VII suit a two-step action: First, the parties would litigate the question of whether EEOC had a reasonable basis for its initial finding, and only then would the parties proceed to litigate the merits of the action.” Sterling Jewelers, 801 F.3d at 101 (citation omitted).

Imposing attorney’s fees based on an “insufficient” presuit investigation is also inappropriate because it misapprehends the primary goal of such investigations. EEOC investigates charges to make a reasonable cause determination and promote conciliation efforts, not to prepare for trial. 42 U.S.C. § 2000e-5(b). Evaluating the reasonableness of the Commission’s litigation based on the “adequacy” of its presuit investigation would necessarily re-focus investigations from conciliation to litigation, needlessly increasing its expense and hindering its efficacy in accomplishing Title VII’s goals. See EEOC v. Peoplemark, 732 F.3d 584, 622-23 & n.23 (6th Cir. 2013) (Carr, J., dissenting) (“[EEOC] does not use the administrative investigation process to prepare for [a lawsuit]. Instead the agency, through its investigation, only aims to gather enough information to help marshal the parties toward an informal settlement.”); id. at 592 n.4 (majority opinion) (acknowledging that presuit investigation is “irrelevant” to an attorney’s fees award).

B. EEOC’s Claims Were Not Frivolous, Unreasonable, or Without Foundation.

The remainder of the district court’s rationale as to fees rests primarily on its conclusion that EEOC’s joint employer theory was frivolous. I-ER-86-88. Here, too, the court abused its discretion.

With respect to the orchard-related hostile work environment and constructive discharge claims, the court held to the very end that there was a genuine dispute of material fact regarding the Growers’ joint employer status that precluded summary judgment—even while applying an incorrect, and more stringent, standard for joint employment than this Court allows. I-ER-100; see supra note 6. The court gave no clear reason why EEOC’s advancement of this meritorious argument should render its case frivolous. And while the court did grant summary judgment on these issues, it did not anywhere rule or suggest that EEOC’s legal or factual arguments on the merits of these issues was frivolous, unreasonable, or without foundation, as would be required to support a fees award under Christiansburg.

As to the non-orchard-related issues, for all the reasons explained above, the district court erred from the outset by applying the wrong legal standard to the joint employment question and by relying almost exclusively on the H-2A Agreements as dispositive of the relationship between Global and the Growers. See supra at 50-52. In granting attorney’s fees, the court blamed EEOC for not deferring, as it did, to the terms of the contracts. I-ER-87-88. But, as explained above, that was the court’s mistake, not EEOC’s. See supra at 50-52. Thus, there was nothing “obvious” about the outcome of this case, as it rested on multiple errors of fact and law by the district court that EEOC could not have foreseen, and the court abused its discretion in making them. Capistrano, 784 F.3d at 1245; Resilient Floor Covering, 801 F.3d at 1088.

Moreover, even if this Court should find that it was appropriate for the district court to conduct the joint employer analysis as it did, it was not frivolous or unreasonable for EEOC to rely on this Court’s longstanding case law, such as Bonnette and Torres-Lopez, suggesting otherwise. See supra at 50-52. Nor did the EEOC’s pursuit of the non-orchard-related aspects of its claims against the Growers lack evidentiary foundation, given the extensive record testimony about the Growers’ knowledge of, and involvement in, the deplorable conditions to which the Claimants were subjected. See supra at 15-19, 26-30.

Finally, the district court stated that the lawsuit was frivolous because, in the FAC, EEOC sought “frivolous remedies,” including backpay and reinstatement. I-ER-89 (citing Propak Logistics, 746 F.3d 145). But even if these two remedies may not have been available for some or all of the Claimants, their mere inclusion among others in the FAC does not render the entire lawsuit frivolous or unreasonable. The FAC also sought injunctive relief and compensatory and punitive damages from the Growers, and none of these remedies was rendered unavailable during the lawsuit. XII-ER-2965-68. Moreover, EEOC specifically identified the class of Claimants allegedly injured by the Growers’ actions, and the Growers are still in business to this day. Both of these facts render this case entirely distinguishable from Propak Logistics. See 746 F.3d at 153 (affirming fees award to defendant where EEOC failed to identify any class members and injunctive relief was impossible because defendant no longer operated facilities in North Carolina).

CONCLUSION

For the foregoing reasons, the judgment of the district court should be reversed and the case remanded for further proceedings.

STATEMENT OF RELATED CASES

EEOC knows of no related cases before this Court.

Respectfully submitted,

JAMES L. LEE

Deputy General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

LORRAINE C. DAVIS

Assistant General Counsel

s/Elizabeth E. Theran

ELIZABETH E. THERAN

JEREMY D. HOROWITZ

Attorneys

Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., 5th Floor

Washington, D.C. 20507

(202) 663-4720

(202) 663-4716

elizabeth.theran@eeoc.gov

jeremy.horowitz@eeoc.gov

CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation of Ninth Cir. R. 32-1(a) because it contains 13,993 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(f) and Ninth Cir. R. 32-1(c).

This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2010 in Palatino Linotype 14 point.

s/Elizabeth E. Theran

ELIZABETH E. THERAN

Attorney

Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., 5th Floor

Washington, D.C. 20507

(202) 663-4720

elizabeth.theran@eeoc.gov

Dated: January 30, 2017

[1] The EEOC refers to Green Acre and Valley Fruit collectively as the “farms,” the “Growers,” or the “Grower Defendants.”

[2] Citations to the Excerpts of Record take the form [volume]-ER-[page #].

[3] By the time of this litigation Global was financially insolvent and had no assets. III-ER-461b-c.

[4] No aspect of the default judgment against Global is at issue in this appeal.

[5] The charges against Global, not relevant here, went through the same procedure.

[6] In so doing, the district court actually applied the incorrect—and a more stringent—standard for joint employment. See supra at 50-52.