TABLE OF CONTENTS

Table of Authorities.......................................................................................... ii

Statement Regarding Oral Argument................................................................ 1

Statement of Jurisdiction.................................................................................. 1

Statement of the Issues..................................................................................... 2

Statement of the Case....................................................................................... 2

A. Course of Proceedings....................................................................... 2

B. Statement of Facts............................................................................. 4

C. Partial Summary Judgment................................................................ 7

D. Trial................................................................................................... 8

Summary of Argument..................................................................................... 9

Argument

This Court should affirm the final judgment against Hill Country Farms. 9

A. Standard of Review........................................................................... 9

B. The turkey processing plant operated by West Liberty Foods, Inc.,

was not a necessary party because Hill Country Farms hired, supervised,

disciplined, paid, controlled, and warehoused the claimants................... 9

C. The district court correctly admitted evidence about the Bunkhouse

because Hill Country Farms required its disabled employees to live and perform work there as a condition of employment, and also because Hill Country Farms never sought to exclude such evidence........................................................................ 12

Conclusion...................................................................................................... 14

Anti-Virus Certification

Certificate of Service

TABLE OF AUTHORITIES

Cases

Boykin v. C.I.R., 260 F.2d 249 (8th Cir. 1958)................................................ 13

Lustgraaf v. Behrens, 619 F.3d 867 (8th Cir. 2010)........................................ 10

Temple v. Synthes Corp., Ltd., 498 U.S. 5 (1990)........................................ 9, 10

U.S. v. Molnar, 590 F.3d 912 (8th Cir. 2010)................................................... 9

Statutes

28 U.S.C. § 1291................................................................................................

28 U.S.C. § 1331.............................................................................................. 1

Americans with Disabilities Act, 42 U.S.C. § 12101 et seq............................... 1

§ 12112(a)............................................................................................. 13

§ 12117(a)............................................................................................... 1

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.................. 1

§ 1981a................................................................................................... 3

§ 2000e-5(f)............................................................................................. 1

Rules

Fed. R. App. P. 4(a).......................................................................................... 1

Fed. R. Civ. P. 19................................................................................ 3, 8, 9-10

Fed. R. Evid. 103.............................................................................................. 9

STATEMENT REGARDING ORAL ARGUMENT

The EEOC agrees with Appellant that this case can be decided on the briefs. However, the EEOC would welcome oral argument if it would be helpful to the panel.

STATEMENT OF JURISDICTION

The district court had jurisdiction over this Americans with Disabilities Act (“ADA”) case under 28 U.S.C. § 1331 and 42 U.S.C. § 12117(a), which incorporates by reference sections 706(f)(1) and (3) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(f)(1) and (3). On September 18, 2012, the district court granted partial summary judgment to the EEOC on the issue of wage discrimination. (R.36, Order, Add. at 1) The case proceeded to trial on the remaining issues of discriminatory treatment under the ADA. On May 1, 2013, the jury returned a verdict against Hill Country Farms. (R.92, Jury Verdict) The district court entered final judgment on June 1l, 2013. (R.108, Final Judgment) Pursuant to Rule 4(a)(1)(B) of the Federal Rules of Appellate Procedure, Hill Country Farms filed a timely notice of appeal on August 6, 2013. (R.111, Notice of Appeal) This Court has jurisdiction under 28 U.S.C. § 1291.

STATEMENT OF THE ISSUES

1. Did the EEOC properly bring this action against Hill Country Farms without also suing West Liberty Foods when Hill Country Farms hired, supervised, disciplined, paid, controlled, and warehoused the claimants?

· Fed. R. Civ. P. 19(a)(1)

· Temple v. Synthes Corp., Ltd., 498 U.S. 5 (1990)

2. Did the district court properly admit evidence of the claimants’ abusive living situation in the Bunkhouse when Hill Country Farms required all of the claimants to live in the Bunkhouse as a condition of employment, directly managed the Bunkhouse, required claimants to perform work in and around the Bunkhouse, knowingly refused to improve the Bunkhouse’s unsafe and unsanitary conditions, and doled out punishments in the Bunkhouse for work-related conduct that had occurred in the turkey processing plant?

· 42 U.S.C. § 12112(a)

· Fed. R. Evid. 103

STATEMENT OF THE CASE

A. Course of Proceedings

The EEOC filed this ADA action against Hill Country Farms on April 6, 2011. (R.1, Complaint) On June 25, 2012, the EEOC moved for partial summary judgment on the issue of wage discrimination. (R.21, Motion) Hill Country Farms did not resist the motion in any way. After a hearing, the district court granted partial summary judgment to the EEOC on September 18, 2012, and awarded $1.4 million in damages for wage discrimination based on the applicable market wage rate. (R.36, Order, Add. at 1) Seven months later, Hill Country Farms moved to vacate the award of partial summary judgment for failure to join West Liberty Foods as a necessary party under Rule 19 of the Federal Rules of Civil Procedure. (R.70, Motion) The district court denied this motion. (R.75, Order)

The remaining claims of disparate terms and conditions of employment and hostile work environment went to trial in April 2013. On May 1, 2013, following a six-day trial, the jury entered a verdict for the EEOC. (R.92, Jury Verdict) The jury awarded $240 million in total damages, comprising $7.5 million in compensatory and punitive damages for each of the 32 claimants.[1] (Id.) The district court subsequently reduced this award to $50,000 per claimant to conform with the ADA’s statutory cap on damages, 42 U.S.C. § 1981a. (R.108, Final Judgment) Hill Country Farms filed a timely notice of appeal on August 12, 2013. (R.112, Notice of Appeal)

B. Statement of Facts

Hill Country Farms, a for-profit Texas corporation, began working with intellectually disabled men in the 1960’s. (R.36, Slip Op. at 3, Add. at 3)[2] In the late 1970’s, it signed a contract with a turkey processing plant in Iowa agreeing to provide the men as workers.[3] (Id.) Hill Country Farms brought the men to Iowa and housed them in a converted school house, known as the Bunkhouse, a few miles away from the plant. (Id.) The men spent their days working on the turkey evisceration line, and Hill Country Farms supervisors drove them back to the Bunkhouse at night. (Id. at 5) For thirty years, Hill Country Farms required the men to live at the Bunkhouse as a condition of their employment. (R.90, Stip. 7) This litigation covers the time period from 2007-2009 and involves 32 disabled claimants. (R.36, Slip Op. at 6, Add. at 6)

Non-disabled Hill Country Farms employees directly supervised the disabled men both at the turkey processing plant and at the Bunkhouse. (Id. at 5; R.90, Stip. 13) The same people who acted as caretakers at the Bunkhouse were also responsible for employment-related matters such as hiring, firing, and discipline. (R.90, Stip. 13-15) They determined what the men ate, when and where they worked, whether and when they were permitted to leave the Bunkhouse, whether and when they could receive medical care, and all other aspects of their lives. (R.90, Stip. 18, 25; R.36, Slip Op. at 4-5, Add. at 4-5; R.118, Tr. at 277, 357, 360; R.122, Tr. at 709)

None of the Hill Country Farms employees in charge of supervising the disabled men had any training in disabilities, medical care, or discrimination law. (R.90, Stip. 20-23) They routinely denied the men medical assistance and required them to work even when they were ill. (R.118, Tr. at 354, 356-57) They ignored basic hygiene issues, allowing the men’s toenails to grow so long, for instance, that the nails turned hard and curled and, in at least one case, fungus grew up the legs. (Id. at 217-19) They dismissed complaints of pain, forcing one man to work with an undiagnosed broken kneecap for two weeks and another to work despite being ill from chemotherapy for cancer. (R.118, Tr. at 306-09, 360; R.122, Tr. at 694)

Conditions in the Bunkhouse were primitive. The former Fire Marshall, who had inspected 2,500-3,000 buildings in the course of his career, testified that “the level of fire safety [at the Bunkhouse] is probably the worst I had ever seen.” (R.117, Tr. at 139) He added, “There was no doubt in my mind personally that if a fire started in this building, someone was going to die.” (R.118, Tr. at 187) He observed combustible materials in the hallways, a padlock on many exit doors, and furniture blocking other exits. (R.118, Tr. at 159-62, 168-69) A gas water heater was ventilated directly into the kitchen, creating a fire hazard. (Id. at 214) The main water heaters were inoperable. (Id. at 170) There were multiple space heaters, also creating a fire hazard. (Id.) Electrical circuits were overloaded. (Id. at 170-73, 184-85) The fire alarms were disabled. (Id. at 180-81, 183-84) Additionally, ceilings were falling in and there was water damage everywhere. (Id. at 227; R.121, Tr. at 485-86) Windows were boarded up with rotting plywood. (R.118, Tr. at 296; R.121, Tr. at 476-78) The home was drafty. (R.118, Tr. at 298) It was also filthy and overrun with rodents and cockroaches. (Id. at 298, 304; R.121, Tr. at 388, 486-80) Cockroaches got into clothes, electronics, and food. (R.118, Tr. at 304) Clothes and mattresses were badly stained with urine. (Id. at 303, 313, 388)

Caretakers physically abused the disabled men at the Bunkhouse for not working correctly or quickly enough while on the turkey evisceration line. (Id. at 222-27, 322, 331-32) They hit or kicked the men in the stomach, buttocks, and/or groin. (Id. at 223-27, 330, 332, 334, 335, 337) Sometimes they made the men walk around a pole while they hit, kicked, and screamed at them, and sometimes they made them walk around the gym carrying heavy weights. (Id. at 324, 327) They also disciplined the men by requiring them to stay in their rooms, by confiscating their electronics, or by refusing to allow them to attend church or participate in a monthly outing to WalMart. (Id. at 324, 337; R.121, Tr. at 493-95; R.90, Stip. 25-26) They handcuffed one individual to his bed. (R.118, Tr. at 337) The same Hill Country Farm supervisors who were purportedly acting as “caretakers” called the men “retards,” “slow motherf’kers,” and “idiots.” (Id. at 328-29)

Hill Country Farms paid the men $65 per month for their work in the turkey plant. (R.36, Slip Op. at 3, Add. at 3) Although each of the men received Social Security and/or Supplemental Security Income, that money was deposited directly into bank accounts in Texas in care of Hill Country Farms, which maintained total control over the money belonging to the workers. (Id. at 3-4)

C. Partial Summary Judgment

On September 18, 2012, the district court granted the EEOC partial summary judgment on its claims of wage discrimination because of disability. (R.36, Order, Add. at 1) The court held that because the 32 claimants were as productive and effective as non-disabled workers doing the same jobs at the same plant, Hill Country Farms should have paid them $11.48 - $12.13 per hour, a rate equivalent to that of non-disabled employees performing the same or similar jobs with like tenure. (Id. at 8, 11; R.24-2, App. at 719-849) The court also held that Hill Country Farms was not entitled to wage credits for amounts allegedly paid for room and board because the Fire Marshall had declared the Bunkhouse unsafe for occupancy and because the Hill Country Farms requirement for all the men to be quartered at the Bunkhouse was for the benefit of the employer and not for the benefit of the employees. (R.36, Order at 9, 10, Add. at 9, 10) The court awarded $1,374,266.53 in damages (exclusive of prejudgment interest) on the wage discrimination claim. (Id. at 12)

At trial, Hill Country Farms moved to vacate the award of partial summary judgment, arguing that the EEOC should have joined the turkey processing plant as a necessary party under Rule 19 of the Federal Rules of Civil Procedure. (R.70, Motion) The district court denied the motion. (R.117, Tr. at 15-16) Even in a case where there may be joint employers, the court said, the EEOC may name fewer than all of the entities that are arguably employers as defendants. (Id.)

D. Trial

The case proceeded to trial. The jury found for the EEOC, concluding that Hill Country Farms had violated the ADA by discriminating against the claimants in terms and conditions of employment and by subjecting them to a hostile work environment, all based on their intellectual disabilities. (R.92, Verdict) The jury awarded each claimant $5.5 million in compensatory damages and $2 million in punitive damages, for a total award of $240 million. (Id.)

SUMMARY OF ARGUMENT

No basis exists for overturning the district court’s final judgment against Hill Country Farms. The litigation did not exclude any necessary party and all evidence was properly admitted. This Court should affirm.

ARGUMENT

This Court should affirm the final judgment against Hill Country Farms.

A. Standard of Review

This Court reviews a district court’s determination of whether a party is necessary under Rule 19 of the Federal Rules of Civil Procedure for abuse of discretion. Temple v. Synthes Corp., Ltd., 498 U.S. 5, 8 (1990).

A party challenging the admission of evidence must make a timely objection or move to strike, and must state on the record the ground for exclusion. Fed. R. Evid. 103. When the claim of error is not properly preserved, this Court may reverse only for plain error. Id. at 103(e). Plain error exists only when the error is obvious and it affected substantial rights. U.S. v. Molnar, 590 F.3d 912, 915 (8th Cir. 2010).

B. The turkey processing plant operated by West Liberty Foods, Inc., was not a necessary party because Hill Country Farms hired, supervised, disciplined, paid, controlled, and warehoused the claimants.

Hill Country Farms seeks to overturn the judgment against it because the district court refused to join the turkey processing plant, West Liberty Foods, as a necessary party. (Appellant Br. at 6) The district court correctly permitted the case to proceed solely against Hill Country Farms. Even if the EEOC had decided that it also had a colorable basis or theory upon which to sue West Liberty Foods as well as Hill Country Farms on the specific claims being asserted, “It has long been the rule that it is not necessary for all joint tortfeasors to be named as defendants in a single lawsuit.” Temple, 498 U.S. at 7; see also Lustgraaf v. Behrens, 619 F.3d 867, 885 (8th Cir. 2010) (same).

Rule 19(a)(1) of the Federal Rules of Civil Procedure requires joinder of a party if (A) in that party’s absence, the court cannot accord complete relief among existing parties, or (B) that party claims an interest relating to the subject of the action and is so situated that disposing of the action in its absence might impede its ability to protect its interest or might leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations. Hill Country Farms does not and cannot explain why Rule 19 has any bearing on this case.

Rule 19(a)(1)(A) is inapplicable because the district court could and did award complete relief in this case among existing parties. Rule 19(a)(1)(B) is also inapplicable because, as Hill Country Farms conceded (R.117, Tr. at 14), West Liberty Foods never claimed any interest in the subject matter of the litigation.

Hill Country Farms hired, supervised, disciplined, paid, controlled, and warehoused the claimants. (R.90, Stip. 7, 9, 12, 13, 15, 16, 19, 24-26) Hill Country Farms also acted alone in demonstrating indifference to the claimants’ suffering. When West Liberty Foods became aware that a Hill Country Farms supervisor was physically abusing a claimant, it notified Hill Country Farms of the incident and banned that supervisor from its premises. (R.90, Stip. 29; R.118, Tr. at 305-06) Hill Country Farms, on the other hand, interviewed the supervisor but not the victim and then continued to employ the supervisor at the Bunkhouse controlled by Hill Country Farms, where he continued to hit, kick, and otherwise abuse many of the claimants. (R.121, Tr. at 520; R.119, Tr. at 873-76)

The EEOC logically and correctly sued Hill Country Farms without also suing West Liberty Foods. At no time during its investigation or throughout this litigation did the EEOC find or contend that it believed West Liberty Foods was engaged in the forms of discrimination alleged against Hill Country Farms. The discriminatory practices, which included underpayment of wages, unlawful wage deductions, inhumane living conditions, verbal and physical abuse, denial of medical attention, harsh punishments, and other forms of harassment, were found and alleged to have been committed by Hill Country Farms, the entity with direct supervision and complete control over living conditions of the claimants. The EEOC bore no obligation to file suit against a third party entity which it did not find to be responsible for these unlawful acts. Accordingly, the district court did not abuse its discretion by denying Hill Country Farms’s motion to vacate the award of partial summary judgment.

C. The district court correctly admitted evidence about the Bunkhouse because Hill Country Farms required its disabled employees to live there as a condition of employment, and also because Hill Country Farms never sought to exclude such evidence.

Hill Country Farms never objected to the admission of evidence about activities in the Bunkhouse. To the contrary, it stipulated that “at all times that the [claimants] were performing their jobs at the turkey processing plant in West Liberty, Iowa, they were all required by Hill Country Farms to live under one roof at the Bunkhouse in Atalissa, Iowa.” (R.90, Stip. 7 (emphasis added)) It further stipulated that the same individuals who oversaw the claimants’ working conditions also oversaw their living conditions (id. Stip. 13), that Hill Country Farms “expected the [claimants] to respect the authority and follow the direction of [these individuals] at the turkey processing plant and at the Bunkhouse (id. Stip. 15), that “while working in Iowa, in addition to their work at the turkey processing plant, [claimants] were also expected to perform work around the Bunkhouse, such as tearing down a barn, yard maintenance, laundry, cooking, and housekeeping duties” (id. Stip. 19), and that discipline of the claimants included removing their electronics or requiring that they stay in their rooms at the Bunkhouse or in the van when others were allowed out. (Id. Stip. 25-26)

By affirmatively introducing evidence regarding the Bunkhouse in the form of stipulations, Hill Country Farms renders absurd its current argument that admission of such evidence was plain error. Residence in the Bunkhouse was a “condition of employment” within the meaning of the ADA. See 42 U.S.C.

§ 12112(a) (prohibiting discrimination in “terms, conditions, and privileges of employment”); cf. Boykin v. C.I.R., 260 F.2d 249, 251 (8th Cir. 1958) (tax code recognizes that in some circumstances, employee may be required to accept lodging for the convenience of the employer as a condition of employment). Hill Country Farms required its employees to live at the Bunkhouse for its own benefit. (R.36, Order at 10, Add. at 10) Accordingly, evidence about occurrences at the Bunkhouse was relevant and admissible. Only through such evidence could the jury learn the extent to which Hill Country Farms controlled and abused the vulnerable claimants.

CONCLUSION

Hill Country Farms has not identified any reversible error. For the foregoing reasons, the EEOC respectfully asks this Court to affirm entry of final judgment against Hill Country Farms.

Respectfully submitted,

P. DAVID LOPEZ

General Counsel s/ Gail S. Coleman

Attorney

LORRAINE C. DAVIS EQUAL EMPLOYMENT

Acting Associate General Counsel OPPORTUNITY COMMISSION

Office of General Counsel

CAROLYN L. WHEELER 131 M Street, NE, Room 5SW24L

Assistant General Counsel Washington, DC 20507

(202) 663-4055

gail.coleman@eeoc.gov

[1] The amount of damages awarded in the final judgment is not a subject of this appeal.

[2] The parties stipulated that they could use at trial the district court’s findings of fact in the order granting partial summary judgment. (R.90, Stip. 3, 33)

[3] The plant changed ownership several times, but Hill Country Farms continued to provide workers throughout each change of ownership. (R.36, Slip Op. at 4) At the time at issue in this litigation, the plant was owned by West Liberty Foods. (Id.)