David Ojeda-Sanchez v. Carmelo Hernandez-Rubio

Case: 11-13835 Date Filed: 11/29/2012 Page: 1 of 18

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_____________

No. 11-13835

_____________

D.C. Docket No. 6:08-cv-00096-BAE-GRS

DAVID OJEDA!SANCHEZ,

FLORENCIO CORTES!GONZALEZ,

ALFONSO GUERRERO!HERNANDEZ,

ARTURO MORALES!MORALES,

RAUL MORALES!MORALES,

OSCAR ANTONIO MORALES!RAMIREZ,

JUAN PABLO ORTIZ!ROCHA,

JAVIER GUERRERO!CARRILLO,

Plaintiffs-Appellants,

BERNABE ARCADIO!RUBIO,

SAUL HERNANDEZ!ANDABLO,

SAMUEL ROJO!ANDABLO,

BONIFCIAO SANCHEZ!COBARRUBIAS,

RICARDO SANTOS!HERNANDEZ,

CRESCENCIO HERNANDEZ!MARTINEZ,

JOEL RUBIO!MORALES,

GUADALUPE HERNANDEZ!MARTINEZ,

ZEFERINO HERNANDEZ!MARTINEZ,

PEDRO HERNANDEZ!HERNANDEZ,

DOMINGO HERNANDEZ!HERNANDEZ,

SAMUEL HERNANDEZ!HERNANDEZ,

LUIS HERNANDEZ!HERNANDEZ,

ANGEL HERNANDEZ!MARTINEZ,

GERONIMO MARTINEZ!HERNANDEZ,

PROCORO DEMETRIO MEDINA!HERNANDEZ,

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JUAN HERNANDEZ!CRUZ,

PEDRO VICTOR!HERNANDEZ,

ISRAEL VICTOR!SERNA,

MANUEL SANTILLAN!ALANIS,

LUIS RIVER!PADILLA,

JULIO RIVERA!VALDES,

REYNO ANTONIO!HERNANDEZ,

SANTOS MARCELO DAMASO!HERNANDEZ,

ANASTACIO HERNANDEZ!HERNADEZ,

BENITO FRANCISCO HERNANDEZ!HERNANDEZ,

BENJAMIN HERNANDEZ!HERNANDEZ,

MARCELINO FRANCISCO HERNANDEZ!HERNANDEZ,

NASARIO HERNANDEZ!HERNANDEZ,

OSCAR ANTONIO HERNANDEZ!HERNANDEZ,

RUBEN HERNANDEZ!HERNANDEZ,

SANTOS HERNANDEZ!HERNANDEZ,

ESAU HERNANDEZ!MARTINEZ,

FIDEL MARTINEZ!HERNANDEZ,

JOSE ANTONIO HERNANDEZ!MARTINEZ,

HORACIO HERNANDEZ!MEJIA,

FIDEL MARTINEZ!MARTINEZ,

CRESCENCIO MEDINA!MARTINEZ,

PATRICIO MEDINA!HERNANDEZ,

HILARIO LORENZO RAMIREZ!HERNANDEZ,

PRIMITIVO RAMIREZ!HERNANDEZ,

SANTOS CAMILO TORRES-HERNANDEZ,

LORENZO GUERRERO!CHAVEZ,

SANTOS ESTEBAN HERNANDEZ!HERNANDEZ,

SANTOS MARTINEZ!RUBIO,

BULMARO ELIZALDE!NERI,

JAVIER ELIZALDE!NERI,

ROSALIO ELIZALDE!NERI,

ELODIO RIOS!CHAVEZ,

MISAEL TREJO_RUIZ,

PATRICIO RIOS CHAVEZ,

ODILON ANTONIO!CAMARGO,

RAMON PALACIOS!PAREDES,

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AGUSTIN COVARRUBIAS!HERNANDEZ,

ESTEBAN HERNANDEZ!MARTINEZ,

HUGO OLVERA!GONZALEZ,

VICTORIANO MANUEL CAMPOS!QUEZADA,

VICTORIANO MANUEL SALGUERO!GONZALEZ,

REYES CARLIN!VIDAL,

HORACIO RUIA!RANGEL,

OBISPO CRUZ!TREJO,

SERAFIN FERNANDEZ!VITE,

JUAN OLVERA!RUIZ,

AANDRES HERNANDEZ!HERNANDEZ,

MARDONIO MARTINEZ DE LA CRUZ,

FILIMON SOLIS!VELAZQUEZ,

OMAR SANCHEZ!COVARRUBIAS,

IGNACIO FERNANDEZ!CRUZ,

ABEL CIRIACO HERNANDEZ!BAUTISTA,

EFREN MAGANA!BANALES,

FELIX MEJIA!HERNANDEZ,

HECTOR PEREZ!CARRETO,

Opt!In Plaintiffs ! Appellants,

CARMELO HERNANDEZ!RUBIO,

JUAN JOSE HERNANDEZ DE LA CRUZ,

Movants ! Appellants,

versus

BLAND FARMS, LLC,

MICHAEL HIVELY, individually,

DELBERT BLAND, individually,

Defendants ! Appellees,

____________

Appeal from the United States District Court

for the Southern District of Georgia

____________

(November 29, 2012)

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Before JORDAN and HILL, Circuit Judges, and HOOD,* District Judge.

HILL, Circuit Judge:

Plaintiffs/Appellants are Mexican seasonal farmworkers. They sued Bland

Farms, LLC, asserting violations of the Fair Labor Standards Act and breach of

contract. Following an eight day bench trial, the district court found a violation

but in an amount less than claimed. Additionally, the district court rejected the

workers’ claim for liquidated damages, refused to enlarge the limitations period

and denied the workers leave to amend to add twenty-one additional workers. The

workers appeal these adverse rulings.

I.

The appellants are Mexican seasonal farmworkers (the “Farmworkers”) who

work for Bland Farms, LLC (“Bland”) as guest workers pursuant to the H-2A

program. Bland employed the workers during the 2004-2008 seasons to plant and

harvest onions. Bland employs field supervisors who record the time and amount

of onions planted or harvested by the Farmworkers. Bland also employs “field

___________________________

*Honorable Joseph M. Hood, United States District Judge for the Eastern

District of Kentucky, sitting by designation.

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walkers” who help supervise the Farmworkers and otherwise assist the

supervisors. Some of the field walkers are also paid to drive a crew bus to and

from the fields. The employment relationships between the workers and Bland are

governed by the Fair Labor Standards Act (the “FLSA”) as well as by contractual

agreements found in H-2A clearance orders that Bland filed with the Department

of Labor (the “DOL”).

Farmworkers central claim is that Bland’s supervisors did not accurately

record Farmworkers’ work hours and, as a result, significantly underpaid them.

Farmworkers claim that Bland’s inaccurate record-keeping was willful and

undertaken in bad faith. The district court agreed that Bland’s records contained

inaccuracies, but awarded Farmworkers substantially less additional work time

than they had claimed. Additionally, the district court found that Bland’s FLSA

violation was not willful and its conduct not in bad faith. Farmworkers appeal

these holdings.

II.

1. The Wage Claims

Farmworkers claim an average deficiency in recorded hours of

approximately 2.4 hours per day, per worker. Although they initially sought to

prove that Bland deliberately forged pay records as part of a scheme to

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systematically underpay the workers, Farmworkers abandoned this claim midway

through the bench trial when the evidence failed to support that claim.1

At trial, Bland’s field supervisors admitted to numerous shortcuts,

omissions, and estimates in their time-keeping records. As Farmworkers’ counsel

put it, “apprehension of the rules by [Bland’s supervisors] had the effect of

producing undercounting [of hours]. It is not because they are bad people. It is

just that they had an apprehension that we think is inconsistent with the law.”

The evidence was that, on many mornings, Farmworkers began the day

sitting on the buses at the fields awaiting word that the fields were dry enough to

begin work. Bland’s field supervisors did not begin counting Farmworkers’ work

time upon arrival at the fields, but instead waited until Farmworkers actually

began planting or harvesting onions. The supervisors also excluded lunch time

and the time that Farmworkers spent waiting for the buses to takes them home or

for the field supervisor to tally each group’s production. Stop times were

sometimes altered at the end of the day to compensate for unrecorded breaks

Farmworkers took throughout the day. As a result of these practices, the district

court concluded that Farmworkers established that Bland’s pay records were

1

In response to the district court’s query about proof of deliberate fraud, Farmworkers’

counsel noted that “sometimes the case you plan and sometimes the case you prove does turn out

to be a little different.”

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inaccurate as to the start and end of work each day and that they were due

additional compensation.2

Under Anderson v. Mt. Clemens Pottery, Co., 328 U.S. 680 (1946), the

Farmworkers had two avenues open to them to establish the amount of work for

which they were undercompensated. First, they could provide the court with

“convincing substitutes” for Bland’s records, which would show the correct

amount of time they worked. Farmworkers argued that the court should use the

hours recorded for bus drivers who also served as field walkers.3 They argued that

since the bus drivers transported the Farmworkers to the fields in the morning,

walked the fields all day, and then drove the busses home at night, their hours

recorded for walking the fields were a convincing substitute for the inaccurate

Farmworker time records.4

The court rejected these records as a convincing substitute because the bus

drivers/field walkers had additional duties requiring additional work time beyond

2

Farmworkers were due to be paid for lunch time (45 minutes per day), as well, and the

district court so held.

3

Field walkers are intermediate supervisors who assist the field supervisors in

monitoring the Farmworkers and setting up the fields for work each day. Some workers served

as both bus drivers and field walkers. These individuals were separately compensated for their

bus driving time and duties.

4

Farmworkers also offered the personal time records kept by two workers as substitutes

for the inadequate records, but the court found these to be “inconsistent, self-serving, and

anecdotal” and rejected them as not a sound basis for calculating the other workers’ time.

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the time the Farmworkers were in the fields.5 The evidence supported this finding

of fact and, therefore, it is not clearly erroneous.6

The second avenue open to the Farmworkers under Mt. Clemens is to

“produce sufficient evidence to show the amount and extent of that

[uncompensated] work as a matter of just and reasonable inference.” 328 U.S. at

688. The district court found that the evidence established, and Bland did not

deny, that Bland “did not begin counting the Plaintiffs’ time when they arrived at

the fields, stopped counting before Plaintiffs left, and arbitrarily deducted time for

unrecorded breaks they thought Plaintiffs took throughout the day. Many of these

breaks were likely fully compensable.” As a result, the court held that

Farmworkers had produced sufficient evidence from which the court could

reasonably infer that they had worked some time for which they were not

compensated.

In calculating how much uncompensated time could reasonably be inferred

from the credible evidence, the district court concluded, based upon the testimony

5

The bus drivers were awarded two additional hours each day for time preparing to and

actually driving before and after field work and for being on 24 hour call to transport

Farmworkers to and from stores and other destinations. Other comparators offered also had

additional duties during which Farmworkers were not present.

6

Bland’s two field supervisors and its payroll accountant all testified to the extra duties

performed by fieldwalkers.

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regarding the Farmworkers’ time of arrival at the fields and occasional time spent

sitting on busses or waiting for busses at the end of the day, that it was reasonable

to infer that each worker was due an extra 30 minutes of compensable time per

week.7

The Farmworkers dispute this finding. They argue that since Bland was

unable to negate the inference that the workers were due some extra compensation

or to produce evidence of the precise amount of work performed by them, that

they are entitled, as a matter of law, to the 2.4 extra hours they claimed and for

which they provided supporting testimony and their own personally recorded time

sheets.8 We disagree.

Farmworkers misunderstand the Mt. Clemens standard. In the absence of

convincing substitutes for Bland’s faulty records, the district court was obligated

under Mt. Clemens to award damages to Farmworkers based on “whatever

reasonable inferences can be drawn from the employee’s evidence . . . .” 328 U.S.

7

Some workers claimed significantly greater uncompensated hours – ranging from 20.75

to 37.50 in the week for which records were produced. These hours were significantly greater

than the 2.4 hour a day difference the Farmworkers generally claimed as the difference between

the field worker and the field walker hours.

8

As noted above, this claim for uncompensated time was firmly rooted in Farmworkers’

theory that the bus driver/field walkers hours were an adequate proxy for the Farmworkers’

hours. The district court rejected that theory and, for the same reasons, held that the evidence of

bus driver/field walker hours also was not probative as to the amount of hours worked by

Farmworkers.

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at 693. But where the employer produces evidence “to negative the

reasonableness of the inference to be drawn from the employees’ evidence,” id. at

688, the district court is not relieved of its responsibility as the finder of fact to

weigh the evidence, assess the credibility of the witnesses, and evaluate the

reasonableness of the permissible inferences. We express no opinion on what

course would be required of the district court in the absence of such employer

evidence because that is not this case.

In this case, Bland did produce substantial evidence tending to negate the

2.4 hours claimed by Farmworkers. First, as noted above, this claim for

uncompensated time was firmly rooted in Farmworkers’ theory that the bus

driver/field walkers hours were an adequate proxy for the Farmworkers’ hours.

The district court rejected that theory and, for the same reasons, held that the

evidence of bus driver/field walker hours was not probative as to the amount of

hours worked by Farmworkers. As a result, Farmworkers’ claim that they worked

an extra 2.4 hours a day is not a reasonable inference on the proxy theory of the

facts.

Furthermore, there was extensive testimony from Bland payroll clerk

Bouwense that she was “accessible” to the workers for corrections to the time

sheets, that she double checked supervisor time sheets with actual employees

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whenever “something on a tally sheet that didn’t look right” or “make sense,” and

that she would correct tally sheets if necessary “after I had these discussions with

the field supervisors.” She also testified that when she compared plaintiff

Morales-Morales’ personally kept time sheets provided her during discovery with

those provider her by Bland’s field supervisor for part of the relevant time period

that “there wasn’t that much of a difference” and that “it came out to be like .14

hours.” The district court found this evidence to be credible, further undermining

the reasonableness of the inference that Farmworkers were entitled to an

additional 2.4 hours per day .

Farmworkers’ only other evidence supporting an inference as to the amount

of uncompensated time came in the testimony of individual plaintiffs as to their

recollection of the hours they had worked. The district court, however, expressed

its reservations about this testimony on more than one occasion, characterizing it

as “obviously . . . well coached and not very persuasive,” and “self-serving and

contradictory.” Two workers offered their own personal time records, but the

district court found these to be “inconsistent, self-serving, and anecdotal.” The

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court concluded that this evidence did not “provide a sound basis for calculating

Plaintiffs’ compensable time.”9

Farmworkers complain that the district court incorrectly rejected this

testimony because it was “imprecise.” We disagree. It is clear that the district

court recognized its obligation to draw all reasonable inferences from

Farmworkers’ evidence in support of an award of damages, “even though the

result be only approximate.” Mt. Clemens, 328 U.S. at 688. What the district

court refused to do, however, was to award damages based upon unreasonable

inferences. The district court’s order after hearing all the evidence in this case

over an eight day period rests upon a careful exposition of that evidence and a

reasoned explanation of the reasonable inferences that could be drawn from it. We

find no clear error in the district court’s findings of fact or application of the law

regarding the amount of compensable time due Farmworkers.10

2. The Statute of Limitations and Liquidated Damages

9

The district court rejected the claim made in these records that the workers worked an

additional 3.5 to 6.25 hours a day more than that shown on the Bland tally sheets.

10

The parties agree that a recent decision of this court has resolved the issue of the

housing credit that the district court awarded Bland. See Ramos-Barrientos v. Bland, 661 F.3d

587 (11th Cir. 2011). This case will be remanded for a recalculation of damages under this recent

rule.

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Under the FLSA, the two-year statute of limitations is extended to three

years if a cause of action arises out of a willful violation of the FLSA. 29 U.S.C. §

255(a). In addition, employees who prevail under the FLSA are entitled to recover

liquidated damages unless the employer makes an affirmative showing that it acted

in good faith. Dybach v. Fla. Dep’t of Corrections, 942 F.2d 1562, 1566-67 (11th

Cir. 1991). The district court held that Farmworkers did not establish that Bland’s

violation of the FLSA was willful or that it acted in bad faith. Farmworkers

appeal these holdings.

To establish willfulness, Farmworkers must show that Bland “either knew

or showed reckless disregard for the matter of whether its conduct was prohibited

by the statute.” McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133 (1988).

Neither negligence, nor even unreasonable conduct, is sufficient to prove

willfulness. Allen v. Bd. of Pub. Educ., 495 F.3d 1306, 1324 (11th Cir. 2007). It is

Farmworkers’ burden to prove willfulness.

In order to establish its good faith, Bland must prove both that it acted with

a good faith belief that its procedures did not violate the law and that it had

reasonable grounds for believing this. Rodriguez v. Farm Stores Grocery, Inc.,

518 F.3d 1259, 1272 (11th Cir. 2008).

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The determinations of willfulness and good faith are mixed questions of fact

and law. Allen, 495 F.3d at 1324. To the extent that the district court made

findings of fact that led it to the legal conclusions that Bland’s actions were

neither willful nor taken in bad faith, we review them under the clearly erroneous

standard. Reich v. Dep’t of Conservation and Natural Res., 28 F.3d 1076, 1084

(11th Cir. 1994).

As noted above, Farmworkers initial claim in this case was that Bland had

engaged in an intentional scheme to forge pay records in order to systematically

underpay Farmworkers. After abandoning this claim (“We are saying that the

hours are inaccurate. We are not alleging that there is an intentional doing of

that.”), Farmworkers argued that willfulness was demonstrated by the fact that

Bland had been sued on six prior occasions over the past sixteen years by seasonal

workers and was, therefore, on notice of their FLSA obligations. Farmworkers

argued that the new violation demonstrates as a matter of law that Bland acted

willfully.

The district court, however, noted that despite prior FLSA lawsuits against

it, there had never been a single finding of a Bland FLSA violation.11

Furthermore, the district court found that Bland’s accounting procedures

11

The cases were settled without trial.

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demonstrated not only that it knew what its FLSA obligations were, but that it

actively sought to ensure that they were met. The court noted that Bland’s payroll

clerk was a qualified accountant (master’s degree in accounting) and that her

credible testimony was that she took great care to record Farmworkers hours

correctly and to correct error whenever she was made aware of it. She testified to

several occasions on which she consulted with individual Farmworkers about their

hours and corrected her records. Based upon these facts, the district court

concluded that Bland did not act in reckless disregard of its obligations under the

FLSA.

The district court relied upon these same findings of fact to conclude that

Bland acted in good faith in attempting to discharge its FLSA obligations. The

court recounted Bland’s recording of Farmworkers’ hours on a daily basis, its

accountant’s review of these tally sheets and use of computer software to record

them, her consultation with Farmworkers to check whether the recorded hours

were proper, and her correction of error. The district court concluded:

Defendant knew its operations were governed by the

FLSA and subjectively believed it was abiding by the

law’s requirements. The safeguards it set up provided

Defendant an objectively reasonable basis for this belief.

. . . . Defendant acted in good faith.

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We have reviewed the record, including the transcripts of the trial testimony

regarding these record-keeping procedures and conclude that there is no clear error

in the district court’s findings of fact. Therefore, we hold that there is no

reversible error in its legal conclusions that Bland’s violation of the FLSA was not

willful and that it acted in good faith. 12

III.

For the foregoing reasons, the judgment of the district court is due to be

affirmed with the exception of the housing credit award to Bland. The case shall

be remanded for recalculation of damages without the housing credit.

AFFIRMED IN PART, REVERSED IN PART, REMANDED.

12

We find no reversible error as to any other issue on appeal.

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JORDAN, Circuit Judge, concurring in part and dissenting in part:

I agree with the majority in all respects but one. In my view, the district court’s

lack of explanation for the finding of 30 minutes per week (or 5-6 minutes per day)

of compensable time warrants a remand.

We have recognized that in certain cases a district court must explain how it

reached a specific factual finding for there to be meaningful appellate review. See,

e.g., Carmichael v. Birmingham Saw Works, 738 F.2d 1126, 1136 (11th Cir. 1984)

(vacating and remanding because “the district court did not explain how it arrived at

the twenty-cent figure” and instructing district court to “provide a full explanation”);

Mutual Serv. Ins. Co. v. Frit Indus., Inc., 358 F.3d 1312, 1326-27 (11th Cir. 2004)

(“The district court offered no explanation as to how it reached the conclusion that

the offshore insurers’ denials were reasonable. Without explanation, it is impossible

for us to determine whether or not the district court acted within the bounds of its

discretion.”); Imperial Residential Design, Inc. v. Palms Dev. Group, Inc., 29 F.3d

581, 583 (11th Cir. 1994) (per curiam) (“Before we can effectively review this appeal,

we need an explanation from the district court about its factual and legal

conclusions”). In Carmichael, for example, the panel remanded because the district

court, after finding wage discrimination, did not explain how it arrived at its

determination of the back pay to be awarded to the plaintiff. See 738 F.2d at 1135

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(“The court did not explain how it had arrived at the 20 cents an hour figure.”). The

panel noted that the plaintiff had introduced substantial evidence indicating that the

amount should be higher than the 20 cent figure but the “trial court’s opinion gives

no indication why this evidence was disregarded.” Id.

As in Carmichael, a remand is appropriate here. The farmworkers claimed an

average deficiency in recorded hours of 2.4 hours per day, but the district court

awarded only 5-6 minutes per day. I recognize that the district court rejected some

of the farmworkers’ evidence, but that rejection is insufficient, in my view, to permit

meaningful appellate review. First, the district court did not provide any explanation

for its finding that the farmworkers were underpaid by 30 minutes per week. Second,

the finding was not supported by any citation to the record. Third, the 30-minute

figure was not proposed by either of the parties, making it all the more difficult to

determine where it came from.

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