IN THE UNITED STATES DISTRICT COURT

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

________________________

Nos. 13-35997 & 13-35998

________________________

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff-Appellant,

and

AURELIA GARCIA, WENDY GRANADOS, AMBROCIO MARIN, CIRILO MARIN, ANGELA MENDOZA, FRANCISCO RAMOS, ELODIA SANCHEZ, GERARDO SILVA, and NORMA VALDEZ,

Plaintiffs-Intervenors,

EVANS FRUIT CO., INC.,

Defendant-Appellee.

-----------------------------------------

JUAN MARIN,

Defendant-Intervenor.

____________________________________________________

On Appeal from the United States District Court

for the Eastern District of Washington, Spokane

Hon. Lonny Suko, United States District Judge

_____________________________________________________

STATEMENT REGARDING JURISDICTION

The Equal Employment Opportunity Commission (“EEOC” or “Commission”) brought this enforcement action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§2000e et seq. The district court had subject matter jurisdiction pursuant to 28 U.S.C. §§1331 and 1345, and 42 U.S.C. §2000e-5(f).

The district court sua sponte entered judgment under Federal Rule of Civil Procedure 54(b) regarding nine of the ten claimants, and stayed the remaining claim pending resolution of any appeal. This ruling applies to both the Commission’s claims and the separate claims of Intervenors. The court reasoned that there was “no just reason to delay” because (1) the remaining claim is “severable” and “sufficiently factually and legally distinct” from the dismissed claims; (2) immediate review will likely resolve issues such as the “admissibility of certain evidence” that will affect the conduct of any eventual trial; and (3) since this Court might reverse the partial summary judgment, it would be “more efficient” to await that decision so as to avoid having to try the case twice. Excerpts of Record (“ER”)-34-35.

The Commission believes that this Court lacks jurisdiction over the appeal because judgment was improperly entered under Rule 54(b). As discussed infra, the claims relating to all ten claimants arise out of the same alleged retaliatory conduct and are, therefore, clearly factually and legally interrelated. See Curtiss-Wright Corp. v. Gen’l Elec. Co., 446 U.S. 1 (1980) (discussing factors militating against entering judgment under Rule 54(b)). Contrary to the court’s ruling, “judicial administrative interests,” particularly the interest in avoiding piecemeal appeals, strongly suggest that there is “just reason” to delay. See id. at 8; see also Wood v. GCC Bend LLC, 422 F.3d 873, 877-79 & n.2 (9th Cir. 2005) (discussing Rule 54(b) considerations and standard of review). The Commission will provide additional briefing on this point if desired by the Court. If the Rule 54(b) ruling were correct, however, this Court would have jurisdiction under 28 U.S.C. §1291 over the appeal from the judgment entered August 21, 2013 (ER-5-6).

The Commission noticed an appeal on October 21, 2013 (ER-1-2), within 60 days of the judgment. See Fed.R.App.P. 4(a)(1).

STATEMENT OF ISSUES

1. The Commission contends that the defendant threatened to “get even” with all ten of the former employees who participated in a meeting with the Commission to discuss alleged sexual harassment by Juan Marin, the de-facto boss of Sunnyside ranch. One of those ten individuals heard the threats directly from one of Marin’s main subordinates. The other nine learned of the threats indirectly, and all ten found the threats very frightening.

(a) Did the district court err in holding that there was insufficient non-hearsay evidence to support a finding that the threats were made at the behest of and/or in conspiracy with Marin?

(b) Did the district court err in dismissing the nine individuals on the ground that there was insufficient non-hearsay evidence to support a finding that they were victims of the retaliatory threats?

2. Evidence indicates that Marin was considered “powerful” and “dangerous” and that the ten claimants are monolingual Spanish-speaking farm workers who were cooperating with the EEOC in proceedings related to alleged sexual harassment by Marin. Evidence also indicates that men known to be loyal to Marin were observed eavesdropping on a meeting EEOC convened to discuss the sexual harassment claims.

In this context, did the district court err in holding that as a matter of law no reasonable person in the claimants’ position could be deterred from making or supporting sexual harassment claims?

3. Where the defendant threatened everyone who attended a meeting with the EEOC, did the district court err in holding that an individual who attended the meeting to support his wife, a charging party, was not covered by the participation clause of Title VII?

STATEMENT REGARDING STATUTORY AND RULES ADDENDUM

Please see addendum bound with this brief.

STATEMENT OF THE CASE

1. Nature of the Case and Course of Proceedings

This is an appeal from a judgment dismissing much of the Commission’s Title VII enforcement action challenging alleged retaliation connected with EEOC’s investigation of sexual harassment claims. In June 2010, the Commission brought a related case, EEOC v. Evans Fruit, No.10-3033 (E.D. Wash.), contending that Evans Fruit Company (“EFC”) violated Title VII by subjecting female employees to a sexually hostile work environment caused primarily by Juan Marin. The district court entered a Temporary Restraining Order (“TRO”) in that case, inter alia enjoining EFC and Marin from interfering with the EEOC investigation or lawsuit. ER-699. In October 2010, the district court entered a preliminary injunction. ER-679; ER-658 (amended order); see also ER-675 (Preliminary Injunction).

On September 15, 2011, the Commission brought this suit, alleging that EFC, through Marin, violated Title VII’s anti-retaliation provision by threatening, monitoring, and otherwise intimidating ten former employees — charging parties, potential class members, and witnesses — because they had cooperated with the Commission in its investigation of the sexual harassment claims. ER-646 (Complaint). The ten claimants intervened, represented by Northwest Justice Project (“NJP”), and also alleged state law claims against EFC, Marin, and Marin’s wife. Doc.19. Defendants moved for summary judgment on all claims. Doc.187 (EFC); Doc.215 (Marins). After initially granting the motions (ER-55), the district court reconsidered and reinstated the claims with respect to one individual. ER-7, ER-33-34. The court then entered judgment on the dismissed claims under Rule 54(b). ER-34-35; ER-5-6 (Judgment).

2. Statement of Facts

Evans Fruit, a major apple producer in eastern Washington, is a family-owned corporation headed by William and Jeanette Evans. Until his death in October 2010, the Evans’s son, Tim, served as manager of EFC’s Sunnyside “ranch.” ER-106 (J.Evans Decl.¶4). According to William Evans, however, during the last year and a half or two years of his life, Tim Evans was too ill to manage the ranch actively. ER-99 (“just couldn’t do it”). Since no one was appointed in his stead (id.), authority defaulted to Marin, who had been second-in-command at the ranch since 1986. See ER-108 (J.Evans Decl.¶¶15-16).

In Sunnyside, Marin was considered “powerful.” See, e.g., ER-130 (Aguila: “He was a very powerful man.”). As ranch foreman, he had always controlled jobs — hiring, firing, lay-off, and promotion to crew lead, as well as access to his own rental properties and company-owned housing. See ER-106 (J.Evans Decl.¶16). In later years, however, Marin effectively ran the ranch with a few key subordinates, including Alberto Sanchez. Cf. ER-152 (A.Saldivar: Sanchez and Simon Ramirez were Marin’s “main” crew leads).

In addition, Marin had a lot of money and used it to encourage loyalty. For example, he once paid $500 to bail Sanchez out of jail when he was arrested for fighting at work. ER-189-90 (Marin: adding he did not recall disciplining Sanchez for the misconduct). In light of their relationship, Sanchez explained, “If [Marin] asks me for help, something that will not get me into trouble, I will help him.” ER-148. Similarly, Gerardo Silva stated that Alvaro Rojas, an EFC employee who had worked for Marin for many years, often commented that “Marin would loan him money” so “he was always going to stand by [Marin] because he would receive more from him” than from other people. ER-573-74 (Silva: adding that Rojas would always “defend” Marin when people complained about being short-changed in their paychecks).

Marin was also considered “dangerous.” See, e.g., ER-245 (Valdez); ER-466 (Aguila); ER-269-72 (Silva). As long-time crew lead Alberto Saldivar stated, “he can get even. He’s very powerful and he has a lot of money. . . . He can retaliate.” ER-155.

For example, Sanchez testified that Marin once asked him to help “gun down” Silva’s house because Silva had “stolen” a woman, Norma Valdez, that Marin considered his “girlfriend.” See ER-139-45. Similarly, both Silva and Gregorio Aguila testified that Marin had offered up to $20,000 to kill Marin’s cousin, Ambrocio Marin, because, according to Silva, “supposedly [Ambrocio] was gathering women to file suit against [Marin].”[1] See ER-124-25; ER-269 (Silva: in 2006, Marin asked if Silva knew anyone who wanted to make “easy money” by killing Ambrocio); ER-454 (Aguila: Marin said he was “fed up with the problems”). Ambrocio had objected to Marin’s treatment of female employees and helped Angela Mendoza and her teenage daughter complete EEOC forms in 2006. See ER-376-83; ER-180 (Ambrocio Decl.¶2).

Evidence also suggests that Marin sexually harassed female employees. According to Saldivar, while Marin was at EFC, women could not work there safely — “it was hell.” ER-163. Similarly, Marin’s brother, Cirilo, stated that he often heard Marin tell pretty women he wanted to have a son with them. ER-539-40; ER-357 (Cirilo: warned Marin to stop harassing women); see ER-251 (Silva: Marin harassed and followed Valdez a lot). Yet, Saldivar stated: “Many people complained for many years, and no one did anything about it.” ER-164. Marin explained that “the owners of Evans [Fruit] [would] always pay for the best attorneys that there are in the state,” and nothing would ever happen to him “while they were helping him.” See ER-103 (D.Barajas); see also ER-1636-64 (A.Saldivar: since Marin became boss, he “felt like he was God”).

(a) The February 10 meeting

Between 2006 and 2008, the Commission received several charges alleging that Marin sexually harassed female employees, including teenage girls. Pursuant to its investigation of these charges, on February 10, 2010 — late afternoon on a Wednesday — counsel for the Commission and NJP held a meeting at the Sunnyside public library with charging parties, potential class members, and other witnesses, all former EFC employees. EEOC contacted some people personally. See, e.g., ER-328-29 (Ramos). Others learned of the meeting by word of mouth. ER-360 (Ambrocio: Silva invited him; he invited Aguila and Cirilo).

Gregorio Aguila attended the meeting with his partner, Elodia Sanchez, who would later become a class member in the sexual harassment case. ER-300 (Elodia). Aguila stated that he wanted to tell EEOC, among other things, that Marin had offered Aguila $500 to let Marin have sex with Elodia; additionally, Marin offered to buy Aguila’s son and to hire Aguila to kill someone. See ER-468-69 (Aguila: adding Marin said Aguila could be a “rich man” if he let Marin have his “lady”). Also at the meeting were Ambrocio; Cirilo; future class member Valdez and her partner, Silva; charging party Mendoza and her husband Francisco Ramos; charging party Wendy Granados; and future class member Aurelia Garcia. See, e.g., ER-221 (Silva Decl.¶2); ER-199 (Mendoza Decl.¶7: Mendoza and Ramos); ER-409-10 (Granados). Valdez stated that she attended because she “finally wanted to speak [about what happened to her].” ER-238.

As the meeting was commencing, two other men, Alvaro Rojas and Domingo Cuenca, entered the library. Both were veteran EFC employees although Cuenca had lately been working at Tim Evans’s private ranch. ER-437 (Cuenca). Rojas had worked for Marin as a tractor driver and crew lead for many years. ER-174 (Marin).

The meeting participants were seated at tables throughout the main reading room. The two men, however, did not join the group, or ask for books, or speak to library personnel, or use other library services. Rather, initially, they simply stood near the door talking to each other and watching the participants intently. See ER-235-37, ER-239-40 (Valdez); see also ER-583-85 (Granados). Then, they moved a little ways into the room, “as if to go … and see who else was there.” ER-256-57 (Silva).

The men both asserted that they had come to the library to make copies of betting sheets for Mexican soccer matches. ER-629 (Cuenca); ER-620 (Rojas). Other aspects of their stories differed significantly. Rojas stated that he went to the library “every week” to make copies of the betting sheets. ER-620. Alternatively, he said that sometimes he went, sometimes Cuenca went, sometimes they both went. ER-621.

Cuenca, in contrast, said that he always made the copies of the betting sheets. Rojas had gone with him only once. ER-629, ER-631-32. Cuenca then stated that he had previously used a friend’s computer, but this time the friend no longer had the computer, so he and Rojas decided to use the library. ER-440. Further, he asserted, he had been to the library “many times,” he had made copies at the library “four times” — or maybe only once: “the time I went,” someone helped with the copies. ER-437-38.

Valdez, who was facing the door, stated that she did not see a copier, which was near the door. She was sure she would have noticed it, however, had it been in use. See ER-88, ER-235-37, ER-239-40.

Rojas and Cuenca admitted that they recognized the people at the library as ones who were involved in the “lawsuits” against Marin and EFC. According to Cuenca, as they entered the library, Rojas said, “Oh look, these are the people there from the company. For sure, those must be the ones that are filing the lawsuit against [EFC].” ER-430-31 (though Cuenca did not know what lawsuit).

Rojas conceded that he knew the people were “the ones that had filed the previous lawsuit.” ER-621-22. He pretended not to see them because they knew he was still associated with Marin and EFC, and he knew they had “left the ranch mad” and were “mad” at Marin. Id. He admitted that he noted who was there; he thought Marin might be interested. See ER-321. In addition, as the men were leaving, they passed a window, and Rojas told Cuenca to “look carefully through the window to see if there was anybody else in the group” besides the ones Rojas had already identified. See ER-319 (Rojas); ER-431-32 (Cuenca). Then, in the car going home, the men compared notes as to who each of them had seen. ER-319-20 (Rojas). Rojas later insisted, however, that it was “just a comment,” a “conversation.” He did not really “pay attention” to who was there. ER-320.

Meanwhile, Valdez, Silva, Ambrocio, Aguila, Elodia, and Granados had gradually noticed the men and become aware that they appeared to be watching and listening in on their conversations. See ER-235-37 (Valdez); ER-88 (Valdez); ER-83 (Granados; men were too attentive). In addition, Ramos heard Aguila say that someone from EFC was there although Ramos himself did not actually see the person. ER-331-33.

All except Granados (and Ramos) recognized one or both of the men and knew they were associated with Marin and/or EFC. ER-561-62 (Ambrocio: knew both men); ER-571-72 (Silva: Ambrocio said look around – he saw Rojas and Cuenca paying close attention to the people); ER-464 (Aguila: knew both men); ER-235-36 (Valdez: knew at least Cuenca); ER-302 (Elodia: same).

Aguila thought he saw someone taking photographs with a cell phone. See, e.g., ER-211-12 (Aguila Decl.¶18); ER-509. Elodia thought she saw one of the men with a cell phone and was afraid he would call Marin. ER-303-04. Granados thought one man was holding something square — perhaps a cell phone, though she did not see him taking pictures or making a call. ER-411-13. Both men denied taking pictures, and, while EFC reportedly had the phones analyzed, no pictures were found. See ER-657 (Gonzalez). EEOC was not able to do its own analysis.

The participants found the men’s presence and intense scrutiny distressing. In Valdez’s view, it was just “too much of a coincidence those two persons that were workers at the ranch [] were there at that moment.” ER-233. In fact, Aguila, Elodia, and Granados were so concerned that they quickly left the meeting. See, e.g., ER-464-66 (Aguila: he and Elodia left because he feared Marin would see the photographs the men were taking); ER-67-68 (Elodia: “afraid” when she saw the men); ER-585 (Granados: “afraid,” promptly told attorney she was leaving). Silva and Ambrocio stayed behind, but both assumed, correctly, that by the next day, Marin would know they were cooperating with EEOC. ER-569-73 (Silva: felt “fear” on seeing Rojas because he knew Rojas would tell Marin that people “were there in the library with attorneys”); ER-370 (Ambrocio: thought it “very likely that the next day, [Marin] would know that I had been there”).

In fact, Rojas stated, a couple days after the meeting, he did tell Marin who he had seen at the library. While the story changed somewhat, he conceded that Marin had “often” told him he was interested in information about people — naming Ambrocio, Cirilo, and Silva. ER-318-22 (Rojas). Thus, when Rojas spotted Cirilo and Ambrocio at the library, he admittedly made a point of telling Marin who and what he had seen. Id. At a minimum, he named Aguila, Ambrocio, Cirilo, Valdez, and Silva. ER-622; see also ER-438 (Cuenca); ER-341 (Marin); but see ER-318 (Rojas: telling Marin was just like a “comment”).

Marin, however, heard about the meeting even sooner. He testified that by that evening or perhaps the next morning, he knew there had been a meeting and who was there. ER-77-79 (Marin); see ER-344 (actually heard twice, at ranch and elsewhere). When Rojas identified some people to him, Marin responded, “If you see all these peoples in there together they up to something no good because I know everybody is being a lot of troublemakers.” ER-343.

(b) The Aftermath of the Library Meeting

The day after the meeting, February 11, Aguila received a call from Sanchez, one of Marin’s main subordinates. According to Aguila, Sanchez started by saying that “they” knew he had been at the meeting the night before. ER-212 (Aguila Decl.¶19). When Aguila denied attending, Sanchez said they had pictures from a cell phone. Further, Sanchez stated, “they” had “plans to take care of” Ambrocio and Cirilo, who, they knew, were also at the meeting. And, he said, “they” were also going to “get even” with everyone else who had attended the meeting and cooperated with EEOC. Id.

Sanchez then told Aguila that “they” knew he was desperate for work, so “they” were offering to pay him to work in exchange for informing on future meetings. ER-212 (Aguila Decl.¶19); see also ER-447 (Aguila: Sanchez “told me if you give me information, Juan Marin will give you more work in the orchard.”). Aguila, a carpenter, had previously done repairs for Marin and EFC although payment had been spotty. See ER-203-04, ER-206, ER-210 (Aguila Decl.¶¶2, 3, 9, 17).

Aguila was frightened by the threats. Marin was known to be dangerous, and Sanchez had a reputation for fighting. See, e.g., ER-157 (A.Saldivar: Sanchez has a quick temper and wants to fight with the whole world); ER-273-75 (Silva: recalled five or six times when Sanchez had urged people, including Silva, to fight him and was known to have a gun). Yet, Aguila did need the work. He therefore reluctantly agreed to Sanchez’s “offer.” He also promptly reported the call to EEOC. ER-212 (Aguila Decl.¶19).

The next day, February 12, Aguila got a call from Marin, who asked if he had spoken to Sanchez. When Aguila said that he had, Marin offered him work in exchange for information about what was happening at the meetings. ER-212-13 (Aguila Decl.¶20: work in the apartments). Although he did not want anything more to do with Marin, Aguila agreed to work for him because he did not want Marin or Sanchez to suspect that he was cooperating with EEOC, and he needed the money. Id.

Aguila also reported the call to EEOC. ER-213. After concluding that Aguila was credible, counsel for EEOC and NJP began warning people who had attended the library meeting that they had been threatened. See, e.g., ER-613-14 (Ramos); ER-597-98 (Garcia); ER-580-81 (Granados).

That Sunday, Aguila, with Elodia’s help, fixed some pipes and changed light bulbs at Sanchez’s house and was promptly paid for the work. While he was there, Sanchez reiterated that he should continue attending the meetings and then report back, providing “all the information [he] could.” ER-471-72. Specifically, Marin and Sanchez wanted to know when and where future meetings would take place, who was attending the meetings, and what kind of vehicles the people drove. ER-447 (Aguila: “I’d put in the light bulb and then he would ask me about the meetings”); accord ER-213 (Aguila Decl.¶21). In exchange, Sanchez -- or Marin -- or EFC -- would give Aguila money or work at the ranch. ER-471-72 (Aguila).

About one week later, Ambrocio visited Aguila at his home, and Aguila told him about the contacts with Sanchez and Marin. Aguila then called Sanchez on the pretext of asking about materials. ER-389-91 (Ambrocio). Aguila put the phone on speaker and held it up close to their ears so both he and Ambrocio could hear. ER-363; ER-182-83 (Ambrocio Decl.¶10). The men voiced-identified Sanchez, who, in any event, had answered the phone at the number Aguila dialed. ER-389.

Moving off the subject of supplies, Sanchez asked “what day” the next meeting with EEOC would be and “who would be meeting there.” ER-389, ER-391. Once they knew about a meeting, Sanchez continued, he “would drive by in a car with dark windows and take care of things.” ER-182-83 (Ambrocio Decl.¶10); ER-391 (Ambrocio). When Aguila asked Sanchez for details about who he should be watching for, Sanchez answered that “they” knew who the troublemakers were, naming Cirilo, Ambrocio, “and others.” ER-213 (Aguila Decl.¶22); ER-363-64 (Ambrocio). Aguila asked what the troublemakers looked like. Sanchez described one as a short dried-up old man [Cirilo] and another as a big man, nicknamed Mequetrefe, who was missing some fingers. ER-213-14 (Aguila Decl.¶22); accord ER-182-83 (Ambrocio Decl.¶10). Sanchez then added, “don’t worry, [] they knew what they were going to do with Ambrocio and Cirilo.” See ER-392 (Ambrocio); ER-182 (Ambrocio Decl.¶10).

Marin had previously tried to hire Aguila to kill someone Marin identified as “Mequetrefe” and had even given Aguila directions to Mequetrefe’s house. After Aguila hung up, he and Ambrocio realized that Ambrocio was the intended target. ER-213-14 (Aguila Decl.¶22). Ambrocio had missing fingers, and Marin had annoyed him for years by calling him — and telling others to call him — Mequetrefe, which means good for nothing. Id.; ER-180, ER-183-84 (Ambrocio Decl.¶¶3, 11); ER-365.

Over the next month, Aguila continued working for Marin and Sanchez and, on occasion, reporting on the meetings. Although he saw Marin only once or twice during this period, Marin “would send [him]” to Sanchez. He generally got paid promptly for this work. Aguila explained that he kept going despite his fear so that Marin and Sanchez would not suspect that he was cooperating with EEOC. Indeed, he repeatedly assured them that he was not “participating with the attorneys.” See, e.g., ER-444-46 (Aguila). Aguila kept updating EEOC and NJP, and Ambrocio informed Cirilo. See ER-214 (Aguila Decl.¶23); ER-196 (Cirilo); ER-225-26 (Cirilo Decl.¶2).

On about March 8, Sanchez told Aguila not to sign anything, testify, or say anything to the lawyers. Sanchez warned Aguila that Aguila knew “what type of people” he was dealing with and should take care of his family. As long as he stayed quiet, Sanchez continued, he could return to EFC and would have plenty of work. Aguila agreed not to say anything. See ER-214 (Aguila Decl.¶23).

The following week, Marin called and suggested that he and Aguila meet at the ranch. When Aguila hesitated, Marin told him not to be afraid, that he would not hurt Aguila, but just wanted to give him his check. Although he was “kind of strong with fear,” Aguila reluctantly agreed to go. ER-215 (Aguila Decl.¶25); see also ER-135 (Aguila).

At the ranch, Marin said that he wanted to talk to Elodia — to encourage her to say nice things about him and to find out what other women were complaining about and planning against him. Further, echoing Sanchez, Marin told Aguila not to sign anything at the meetings or talk about what he knew. Marin then told Aguila “directly” that he would kill him or have him killed if he cooperated with the Commission. He further warned Aguila that he was “powerful” and had people who could hurt Aguila’s family. Aguila assured him he would not say anything. ER-135 (Aguila); ER-215 (Aguila Decl.¶25).

At some point, the Commission contacted the FBI to investigate whether Marin was engaged in witness tampering, in light of the threats. The FBI recorded several of Aguila’s phone calls with Sanchez, and Aguila wore a wire for one in-person conversation with Marin about killing Ambrocio. At the follow-up appointment the next week, however, Marin apparently became suspicious and refused to talk to Aguila. See ER-455-49, ER-473-74 (Aguila).

In late April and early May, an older woman in a red truck approached Aguila twice within about a two-week period, once in the street and once at Fiesta Foods, while Aguila was out with Elodia and their one-year-old son. Both times, the woman called Aguila by name and told him that Marin had given her Aguila’s cell phone number and was trying to find out where he and Elodia were living. She also told him that Marin suspected that he was cooperating with the EEOC and that he should leave town soon because two men from EFC were looking for him, and if they found him, they would kill him. See generally ER-216, ER-217 (Aguila Decl.¶27, ¶29); ER-475-77 (Aguila); ER-279-85 (Elodia). Because Elodia continued walking, she did not hear these conversations but Aguila shared them with her. After the second encounter, they were both so frightened that they started crying. ER-304-07 (Elodia).

In early May, Marin summoned Aguila to the ranch where Marin said that Aguila was his “friend” and should never “betray” him or do anything against him. Then, laughing, Marin “held himself and said, you know what I’m capable of, I can kill you.” ER-479 (Aguila).

Soon thereafter, as Elodia and Aguila were returning home, they found Marin’s truck parked in front of their house. Elodia and Aguila were “shocked” to see Marin there because, having recently moved, they believed he did not know where they lived. Marin signaled for Aguila to approach, and Elodia went into the house. See ER-216-17(Aguila Decl.¶28); ER-486-87(Aguila); ER-288-91(Elodia).

Marin told Aguila that he wanted him and his “little woman” to do some work for him. ER-480-82 (Aguila). Aguila, by now sure that Marin knew he was cooperating with the Commission, responded either that he was too busy but would send other men or that he could bring other men instead of Elodia. Marin said no, only him and Elodia. Then he “smiled,” and said that if Aguila “opened [his] mouth, [Marin] would kill [him].” ER-216-17 (Aguila Decl.¶28). When Marin left, Aguila told Elodia about the conversation and contacted EEOC and/or the FBI. They did not do the job. See ER-481-87 (Aguila).

Shortly thereafter, while Aguila and Elodia were meeting with the lawyers, someone Aguila voice-identified as the woman in the red truck called him on his cell phone. Aguila put the phone on speaker, so Elodia and the lawyers could also hear. Refusing to give her name, the woman said that Aguila had two weeks to leave town. If he stayed, he would be killed. ER-217 (Aguila Decl.¶30); ER-482 (Aguila); ER-70-71 (Elodia).

The next day, Aguila, Elodia, and their son were on a bus to San Diego where Aguila has family. They left everything behind, even the car. Aguila simply told his Washington family that they were leaving because of “problems.” ER-482-84, ER-487. Shortly after arriving, however, they got another call from Marin, saying that he knew they were in San Diego and that “hopefully, God would help them.” ER-448-49 (Aguila).

Evidence indicates that Marin pressured some of Aguila’s family in Sunnyside to disclose his new location. ER-217-18 (Aguila Decl.¶31) (noting that brother was unaware of the situation); see also ER-484 (family “has rejected” Aguila for causing them “trouble”). Later, a nephew there repeatedly called Aguila’s family in San Diego, urging them to tell Aguila to “drop the lawsuit” because that was what Marin wanted and, knowing Marin’s character, Aguila might otherwise be found dead. ER-491-96 (F.Aguila). This series of events left Elodia and Aguila “traumatized.” See ER-484 (Aguila: “they destroyed me”).

In June 2010, the Commission filed the sexual harassment suit and obtained a TRO, inter alia enjoining EFC, Marin, and Sanchez from taking any “retaliatory measures” against potential claimants, paying for favorable testimony or information about the case, and otherwise interfering with the claimants, investigation, or lawsuit. ER-699-706, EEOC v. Evans Fruit, No.10-3033 (E.D. Wash.).

EFC promptly suspended Marin, Sanchez, and two other employees. ER-505 (Marin); see ER-499-504 (6/18/2010 suspension letters). The company fired Marin and another man the following month for financial irregularities. ER-192-93 (7/23/2010 discharge letters); ER-420-22 (W.Evans: noting that EFC had started getting “concerned” about Marin in 2005-06, but he was productive and EFC “couldn’t substantiate enough cause to let him go”); see also ER-94 (W.Evans: acknowledging that Marin had embezzled approximately $500,000).

In October 2010, after discovery and a four-day hearing, the district court entered a preliminary injunction. The court noted that “threats of physical harm and other intimidation tactics” could constitute retaliation in violation of Title VII. The court also concluded that EEOC had “produced affirmative evidence from which it can be inferred that a chill of Title VII protected activity [had] occurred or [was] threatened.” Accordingly, the court enjoined Marin, EFC, and its officers, agents, managers, and employees including Sanchez from engaging in further conduct likely to chill protected activity, pending resolution of the hostile work environment case. See ER-658-74 (amended order).

In September 2011, the Commission brought this action challenging the alleged retaliatory conduct arising out of the February 10 library meeting. ER-646. The ten former employees who participated in the meeting intervened and also alleged state law claims against EFC, Marin, and his wife. Doc.19.

In responding to defendants’ summary judgment motions, the Commission and Intervenors offered evidence that after the first charges were filed, Marin ordered employees to write laudatory letters about him. ER-116-20 (Valdez: to keep her job, she wrote what Marin dictated); cf. ER-167-68 (A.Saldivar: Marin had someone else sign Saldivar’s name to such a letter). According to Saldivar, Cirilo and another man refused, so Marin had them fired. ER-167; cf. ER-352 (Cirilo: refused Marin’s order to put “lies” and “defamation” in his letter).

They also offered evidence that in 2010 Marin was offering women $200 to give positive testimony about him. See ER-215 (Aguila Decl.¶26). In addition, evidence indicated that Marin encouraged and even compensated people such as Aguila for spying on individuals believed to be cooperating with EEOC. See ER-213-14 (Aguila Decl.¶¶22-21); cf. ER-215 (id. ¶25) (Marin attempted to persuade him to have Elodia say nice things about him and report on other women); ER-321-22 (Rojas: knew Marin would be interested in information).

Further, there was evidence as to how the threats and spying affected the claimants. As noted above, Elodia and Aguila had to relocate to San Diego; Elodia became afraid to leave home while Aguila has serious health issues. They continued with the lawsuit, however, because they did not want others to suffer as they did. ER-295 (Elodia); ER-477 (Aguila: felt “very badly”); ER-444 (Aguila: doing “pretty bad”); see also ER-64 (Ramos: although fearful, he wanted “justice” and “punish[ment]” for the bad actors).

Ambrocio stated that he moved several times for safety reasons since first learning that his life had been threatened. ER-376. Valdez testified that she had nightmares, always checked the back seat after warming up the car, and would not let her children play outside. See ER-245-46. Garcia changed her locks, warned her children about opening the door to strangers, always checked around to see if anyone was watching her, and worried that Marin would send someone to harm her where she worked, which was near EFC. ER-415-16.

The claimants further described suspicious or threatening incidents they thought linked back to Marin and EFC. See, e.g., ER-575 (Silva: while waiting for his son’s school bus, Silva noticed a truck with very dark windows hovering around the stop until his son got off and ran to him); ER-588-59 (Granados: EFC employee stopped by their house to say the women participating in the lawsuit would be punished); ER-226) (Cirilo Decl.¶¶3-4: received an anonymous call where a male voice said: “So you want my money, f—r? How do you like your tacos – with tongue?”).

3. District court decisions

(a) The district court granted summary judgment to the defendants, largely because it characterized as “hearsay” most of the critical pieces of evidence of retaliation. ER-54-55. The court noted that Title VII’s anti-retaliation provision protects former employees and correctly stated the “objective” standard for adverse action from Burlington Northern & Santa Fe Railway v. White, 548 U.S. 53, 68 (2006). ER-39. In addition, acknowledging only three of Marin’s statements, the court stated that they were admissible as “statements by an opposing party.” ER-53. The court then reached three conclusions. (1) Although addressing the same incidents, the preliminary injunction order was not particularly relevant to this retaliation case. ER-41-43. (2) There was no admissible evidence that any claimant suffered a “materially adverse action” since evidence of the threats was all inadmissible hearsay. ER-43-55. And, (3) Without the threats, what was left was the “mere presence” of two men at the library, which no reasonable person would find materially adverse. Id.

(b) The Commission and Intervenors moved for reconsideration. They argued primarily that the threats were not inadmissible hearsay; a reasonable person could find that Marin’s monitoring of their conduct, through his subordinates Cuenca and Rojas, was materially adverse; and the court improperly analyzed the individual claims.

The court granted this motion in part. ER-33. After holding that the summary judgment decision was not inconsistent with the preliminary injunction order, the court addressed the evidentiary arguments EEOC and Intervenors raised. ER-9-11, 23.

The court agreed that because Aguila had heard the threats directly, Sanchez’s statements were admissible with respect to him. But, the court held, hearsay rules did not allow claimants to testify that they had heard about the threat indirectly from Aguila or counsel. ER-10. The court rejected arguments that such testimony was admissible to show “the impact on the listener” or “the extent of a declarant’s knowledge or a recipient’s notice of certain conditions.” In the court’s view, since Burlington Northern is an objective standard, “the subjective feelings of a retaliation claimant are irrelevant.” ER-13-14.

The court also rejected arguments that Ramos engaged in protected activity by supporting his wife. Without explanation, the court opined that Ramos’s “situation was clearly factually distinguishable” from that of the plaintiff in Thompson v. North American Stainless, 131 S. Ct. 863 (2011). ER-16-17.

Accordingly, the court refused to reconsider and instead reaffirmed summary judgment as to the claims of Ramos, Mendoza, Garcia, Cirilo, Ambrocio, Elodia, Silva, and Valdez. ER-16, 32-33.

The court reached a different result with respect to Aguila. Rejecting defendants’ arguments, the court found an issue of fact as to whether Aguila engaged in protected activity. Aguila attended the meeting to tell EEOC that Marin had offered to pay for sex with Elodia, and he had observed Marin harassing other women. That sufficed since there need only be evidence that he reasonably believed he was protesting an employment practice prohibited under Title VII. ER-19-20 (citing Sias v. City Demonstration Agency, 588 F.2d 692, 695 (9th Cir. 1978)).

The court also found a factual issue as to whether Aguila himself was threatened since he reasonably could have concluded that he was included in the threats leveled against the participants at the EEOC meeting. ER-20-22.

Turning to hearsay, the court agreed that the threats Sanchez made to Aguila could be considered “verbal acts” — “an utterance that is itself an operative fact giving rise to legal consequences [admitted] to show that it actually occurred, not for [its] truth.” ER-23. As such, the court noted, they “could be offered against [EFC].” ER-25. However, the court concluded, they could not be offered to show Marin was “part of the ‘they’ threatening the meeting participants” because, the court opined, that would be for the truth of the matter. ER-24.

The court reached a similar result regarding the hearsay exception for state-of-mind evidence under Evidence Rule 803(3). In the court’s view, Sanchez’s statements were admissible to show his motive to monitor and chill protected activity, but not to show that “Marin shared that state of mind.” ER-31-32. The court added that statements falling under this hearsay exception could be offered against EFC for their truth — that photos were taken at the meeting and that Sanchez threatened to get even with the participants. Id.

The court rejected any argument that Sanchez and Marin were co-conspirators under Rule 801(d)(2)(E) such that Sanchez’s statements would be admissible against Marin. ER-24-31. In the court’s view, none of the statements EEOC and Intervenors identified could be considered independent evidence of a conspiracy to retaliate against the meeting participants, as required by the Rule. ER-30-31 (citing Smith v. Bray, 681 F.3d 888 (7th Cir. 2012)).

The court therefore reaffirmed summary judgment as to all claims against the Marins and denied it as to the claims of Aguila against EFC. The court cautioned, however, that the company’s liability would depend on whether Sanchez’s conduct was properly imputable to EFC. ER-33.

The court then sua sponte entered judgment for defendants under Rule 54(b) on the claims of each claimant (without mentioning EEOC), finding “no just reason to delay in entering this judgment as it [would] allow an immediate appeal” of what the court described as “the overwhelming majority of claims (and claimants) in the case.” ER-34-35. The court also stayed trial of Aguila’s claims pending resolution of any appeal. Id.

SUMMARY OF ARGUMENT

The Commission contends that EFC, through Marin and Sanchez, retaliated against ten former employees by threatening them for cooperating with EEOC’s investigation into alleged sexual harassment by Marin and by spying on these individuals — indeed, attempting to hire one of them, Aguila, for that purpose. The district court dismissed nine of the ten claimants, finding insufficient non-hearsay evidence that they were victims of retaliation. And, the court concluded, while Aguila heard the threats directly from Sanchez, insufficient evidence linked them to Marin.

This was error. First, Marin is linked to the threats under Evidence Rules 801(d)(2)(D) and (E). As head of Sunnyside ranch, he was a high-level manager. If the district court had considered and admitted all of the evidence, the court could find that in seeking to quell protected activity, Marin’s actions — and those of Sanchez — flowed from that authority. In addition, the parallel statements and conduct of Marin and Sanchez strongly suggest they were involved in an unlawful retaliatory scheme. Because Marin was perceived as dangerous and powerful, Sanchez — a subordinate — was unlikely to have hatched and carried out the scheme himself. Rather, he was acting with or as directed by Marin. The district court’s holding that critical evidence was inadmissible is grounded in a legally erroneous understanding of the hearsay rule.

Second, although the nine claimants did not hear the threats directly, ample admissible evidence suggests they were victims of retaliation. Aguila, who heard the threats, can testify that Marin and Sanchez made them. Assuming the conduct is deemed actionable, that establishes a violation. Contrary to the decision below, it would not be hearsay for the claimants then to testify that they had knowledge of and were adversely affected by the threats. And, since whether conduct is materially adverse must be assessed from “the perspective of a reasonable person in the [claimants’] position,” such evidence is highly relevant. Further, the court erred in finding that in “context,” no reasonable person in the claimants’ position could be deterred from making or supporting a discrimination claim by the fact that men known as loyal to Marin were spying on the claimants’ meeting with EEOC.

Third, Ramos was protected against retaliation. Title VII protects individuals who participate “in any way” in an EEOC investigation. Ramos attended the EEOC meeting to support his charging-party wife. His conduct firmly places him within the zone of interests protected by the statute.

STANDARD OF REVIEW AND REVIEWABILITY

This Court reviews a grant of summary judgment de novo. Dark v. Curry Cnty., 451 F.3d 1078, 1082 n.2 (9th Cir. 2006). Summary judgment is inappropriate where, viewing the evidence and drawing all reasonable inferences from that evidence in the nonmovant’s favor, there are genuine factual issues that may be resolved in favor of either party. See id. (citing, e.g., Fed.R.Civ.P.56(c)); see also McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1112 (9th Cir. 2004).

Interpretation of the hearsay rule is a legal question, reviewable de novo. CalMat Co. v. DOL, 364 F.3d 1117, 1122 (9th Cir. 2004). The decision to admit or exclude evidence as hearsay is reviewed for abuse of discretion. Id.; see also Sea-Land Servs. v. Lozen Int’l, 285 F.3d 808, 813 (9th Cir. 2002) (same standard on summary judgment). Reversal is appropriate where the error was prejudicial. Sea-Land, 285 F.3d at 813.

The Commission addressed hearsay below in Doc.279 at 2-8 and Doc.290 at 1-5; actionable retaliation, e.g., at Doc.279 at 13-16, 20-25; Ramos’s protected status, e.g., at Doc.214 at 27-28, Doc.279 at 20-22.

ARGUMENT

The district court erred in dismissing the Commission’s retaliation claims with respect to nine of the ten individuals who cooperated with the Commission’s investigation of allegations that Juan Marin sexually harassed female employees at EFC. Contrary to the court’s ruling, the Commission would not have had to rely on inadmissible hearsay either to establish these claims or to link them to the company. Nor did the court identify any other valid basis for dismissing any of the claimants. Because a jury could find that all nine claimants were victims of unlawful retaliation, the judgment — if final — should be reversed.

I. Ample Non-Hearsay Evidence Links Marin And The Nine Claimants To The Threats Of Retaliation.

Section 704(a) of Title VII prohibits employers from “discriminat[ing]” against an employee or former employee because the individual “made a charge,” “assisted,” or “participated” in a Title VII proceeding or investigation. 42 U.S.C. §2000e-3(a); Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997) (former employees). The Commission, as plaintiff, can establish a §704(a) claim by showing that an individual covered by the statute engaged in statutorily protected activity and, as a result, the employer subjected that individual to an adverse action. See, e.g., Passantino v. Johnson & Johnson Consumer Prods., 212 F.3d 493, 506 (9th Cir. 2000). The purpose of the provision is to “bar employers from taking actions which could have a deleterious effect on the exercise of [Title VII] rights.” Id. (citation omitted). Because Title VII depends for its enforcement on the willingness of individuals to step forward and file charges or act as witnesses, §704(a) must be interpreted to “provide broad protection” against retaliation based on protected activity. Burlington Northern, 548 U.S. at 67 (citing Mitchell v. Robert DeMario Jewelry, 316 U.S. 228, 292 (1960)).

The main issue here is adverse action. In Burlington Northern, 548 U.S. 53, the Supreme Court established the standard for adverse action in Title VII retaliation cases. Specifically, “a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, ‘which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.’” Id. at 68-69 (quoting Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006) (other citation omitted)).

The standard is “objective” — reasonableness judged from “the perspective of a reasonable person in the plaintiff’s position.” Id. at 69-70 (emphasis added). In addition, “[c]ontext matters.” Id. at 69. “An act that would be immaterial in some situations is material in others.” Id. (citing Washington v. Ill. Dep’t of Revenue, 420 F.3d 658, 662 (7th Cir. 2005) (discussing impact of a schedule change on a young mother with a disabled child)). Context matters because “‘[t]he real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed.’” Id. at 68 (quoting Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 81-82 (1998)).

In this case, the Commission alleged that EFC, through Marin and Sanchez, retaliated against the ten claimants primarily by spying on their interactions with the Commission and threatening them for that protected activity. As discussed infra, it is at least a jury question whether the spying and monitoring activity was materially adverse within the meaning of Burlington Northern.

As for the threats, courts generally have little trouble finding actionable retaliation where individuals are threatened based on protected activity particularly where, as here, the individuals could reasonably interpret the threats as serious expressions of intent to harm. See U.S. v. Orozco-Santillan, 903 F.2d 1262, 1265 (9th Cir. 1990) (defining “threat” as “‘an expression of an intention to inflict evil, injury, or damage on another,’” adding that question is whether recipient would interpret the statement “as a serious expression of intent to harm”) (citations omitted). The Supreme Court in Robinson explained, “allowing the threat of postemployment retaliation to deter victims of discrimination from complaining to the EEOC” would undermine Title VII’s effectiveness. 519 U.S. at 346; see also EEOC v. Ohio Edison, 7 F.3d 541, 543 (6th Cir. 1993) (“In enacting [§704(a)], Congress unmistakably intended to ensure that no person would be deterred from exercising his rights under Title VII by the threat of discriminatory retaliation.”).

Thus, for example, the Fourth Circuit recently overturned a Rule 50 reversal, holding that a jury reasonably could have concluded that the plaintiff/fundraiser was subjected to actionable retaliation under Title VII. After complaining about discrimination, the plaintiff was warned that she would ruin her career unless she “became invisible” for the next six months; she also testified that her “benchmark” goals were “spontaneously raised” and her supervisors tried unsuccessfully to replace her while she was on sick leave. See Maron v. VPI, 508 Fed. App’x 226, *3-*4 (4th Cir. Jan. 31, 2013) (unpublished).

Similarly, in a whistleblower case, this Court held that a reasonable jury could find that the employer’s actions were “reasonably likely to deter employees from engaging in [protected activity]” where after the plaintiff/research engineer began investigating alleged fraud, the employer threatened to transfer him without his funding and the projects he was working on and also warned him about possible downsizing. Moore v. CIT Jet Propulsion Lab., 275 F.3d 838, 847-48 (9th Cir. 2002). See also Heller v. EBB Auto Co., 8 F.3d 1433, 1438 (9th Cir. 1993) (adverse action in Title VII religious accommodation case includes “threaten[ing] [plaintiff] with or subject[ing] him to discriminatory treatment” for not fulfilling job requirement that conflicted with his religious beliefs); NLRB v. Island Film Processing Co., 784 F.2d 1446, 1451 (9th Cir. 1986) (stating that “[i]mplied threats of retaliation suffice to taint [a union] election”); Jeffries v. State of Kansas, 147 F.3d 1220, 1231-33 (10th Cir. 1998) (finding actionable retaliation where plaintiff complained about discrimination and her supervisor repeatedly threatened that her contract would not be renewed and refused to supervise her as a student during her employment).

In this appeal, the relevant threats consist mainly of Sanchez’s statements to Aguila on February 11 that “they” — Sanchez and another person — planned to “get even with” everyone who attended the library meeting and cooperated with the Commission. ER-212 (Aguila Decl.¶19). Also relevant is Sanchez’s statement, which Ambrocio and Aguila both heard, that “they” knew what they were going to do with Ambrocio and Cirilo as well as a statement that “they” planned to “take care of” Cirilo and Ambrocio. Id. The district court properly assumed that, if proved by admissible evidence, these threats would be materially adverse. See ER-33 (allowing Aguila’s claim to go forward based on Sanchez’s threats); cf. ER-681 (Order Granting Preliminary Injunction at 3 (“Threats of physical harm and other intimidation tactics are adverse actions constituting [§704(a)] retaliation”)).

That result makes sense. Reasonable persons in the claimants’ position would include monolingual Spanish-speaking farm workers, some of whom had filed charges and all of whom were meeting with the Commission to discuss complaints that Marin sexually harassed employees. The relevant “context” was the ranch where Marin was viewed as “dangerous” and “powerful,” and Sanchez had a reputation for fighting. In that context, a jury could find that reasonable persons in the claimants’ position might well be deterred from making or supporting a discrimination claim if they knew that doing so would cause dangerous and powerful people to threaten them with harm.

The district court concluded, however, that the Commission could not proffer sufficient admissible non-hearsay evidence to show that the nine claimants — who, unlike Aguila, did not personally hear Sanchez threaten them — were victims of the retaliatory threats. Moreover, the court held, while Marin’s statements were admissible as statements of a party opponent, they did not link him to these early threats or any retaliatory scheme. ER-29-30 (finding no evidence Marin was the other person in Sanchez’s “they”.

This conclusion reflects the court’s misunderstanding of the hearsay rule. Hearsay means an out-of-court statement offered in evidence to prove the truth of the matter asserted. Absent an exception, it is inadmissible. Fed.R.Evid.801(c), 802. Contrary to the court’s conclusion, here, ample evidence admissible either as non-hearsay or under a hearsay exception links both Marin and the nine claimants to the threats.

(a) The evidence is admissible.

There are at least four grounds on which the statements by Sanchez and Marin are admissible; the latter two also link Marin to the early threats.

Verbal Acts. A “verbal act” is not hearsay but rather is a statement whose significance “lies solely in the fact that it was made.” Stuart v. Unum Life Ins. Co., 217 F.3d 1145, 1154 (9th Cir. 2000) (citing Notes of Advisory Comm. on Proposed Rules). Such statements include, for example, threats, commands, and offers. See, e.g., U.S. v. Arteaga, 117 F.3d 388, 397 n.16 (9th Cir. 1997) (as amended) (offer); U.S. v. Hicks, 848 F.2d 1, 3 (1st Cir. 1988) (threat).

As the district court correctly acknowledged, all of Sanchez’s threats can be considered verbal acts. ER-10. 12-13, 23-24. So can the statements of both Sanchez and Marin offering Aguila money and work in exchange for his agreement to spy on future meetings with the Commission.[2]

Evidence Rule 803(3). Rule 803(3) carves out an exception to the hearsay rule for “statements of the declarant’s then-existing state of mind (such as motive, intent, or plan)” where state of mind is an issue in the case. See, e.g., U.S. v. Sayetsitty, 107 F.3d 1405, 1414-15 (9th Cir. 1997). Sanchez’s motive, intent, and plan — to monitor and chill protected activity — are relevant here (as are Marin’s).

As the district court correctly recognized, this exception should cover both Sanchez’s threats to “get even” with the participants and the statements that he, at least, was aware there had been a meeting on February 10 and had photographs of the participants and his threats to “get even” with the participants. ER-31. It would also cover Marin’s statements since his state of mind is relevant to the retaliation case.

Evidence Rule 801(d)(2)(D). Marin’s statements are admissible as party admissions under Rule 801(d)(2)(D).[3] See Talavera v. Shah, 638 F.3d 303, 308 (D.C. Cir. 2011) (using the term “party admissions” in the employment discrimination context to refer to out-of-court statements by a high-level employee under Rule 801(d)(2)(D)). That rule provides that “statements offered against an opposing party” and “made by the party’s agent or employee on a matter within the scope of that relationship” “while it existed” are not hearsay. Under the rule, the proffering party must “lay a foundation showing that an otherwise excludable statement relates to a matter within the scope of the agent’s employment.” Sea-Land Servs., 285 F.3d at 821. The out-of-court statements need only concern matters within the scope of the agency; they need not be within the scope of the agency. In re Sunset Bay Assoc., 944 F.2d 1503, 1519 (9th Cir. 1991). The existence of an agency relationship is a question for the judge under Rule 104(a) and must be proved by “substantial” evidence. U.S. v. Flores, 679 F.2d 173, 178 (9th Cir. 1982) (not preponderance). Because they are not hearsay, statements under Rule 801(d)(2)(D) — and (E) —are admissible for the truth of the matter asserted.

Here, a jury could find that by late 2009 and 2010, Marin was effectively in charge of Sunnyside ranch. His duties therefore encompassed anything related to making the ranch run smoothly and efficiently. Moreover, based on the evidence — which is at least “substantial”— a jury could find that Marin had determined that the ranch would operate more smoothly if employees were rewarded for loyalty. Thus, for example, when Sanchez was arrested for fighting at work, Marin bailed him out of jail and sent him home for the rest of the day, without further discipline. ER-189-90 (Marin). When Rojas wanted to go to Mexico, Marin lent him the money. ER-258, ER-573-74.

Similarly, a jury could find that Marin had determined that things would operate more smoothly without the EEOC’s investigation or any subsequent litigation. Evidence indicates that Marin responded to the first charges in 2006 by ordering employees to produce letters lauding him as a manager (and denigrating the charging parties) — and even signed some letters for the supposed author. ER-167-68 (Saldivar). He also fired the few people, including Cirilo, who refused to follow these orders. ER-167. Evidence also suggests that in 2010 Marin offered women $200 to give favorable testimony about him and told Aguila that he wanted Elodia to say nice things about him to EEOC. See ER-215 (Aguila Decl.¶26). Marin also encouraged — and even compensated — people including Aguila to spy on people who were cooperating with the EEOC investigation. ER-212-13 (id. ¶¶19-20); see also ER-215 (id. ¶25) (wanted Elodia to find out what the women were planning); ER-321-22 (Rojas: Marin “often” asked whether he had seen certain people).

Finally, beginning in 2006, Marin tried to hire someone to kill Ambrocio because “supposedly [Ambrocio] was gathering women to file suit against [Marin].” ER-124-25 (Silva). Marin also expressly threatened to kill Aguila and his family if he cooperated with the Commission (ER-135; ER-215 (Aguila Decl.¶25)) and, in tracking Aguila down in San Diego, put pressure on his family back in Washington State to supply an address. ER-491-96 (F.Aguila).

Threatening the individuals who participated in the library meeting and cooperated with the Commission is entirely consistent with that use of power. In light of his position and use of authority at the ranch, Marin should be considered a high-level agent or employee whose statements, made pursuant to that authority, are admissible against the company under Rule 801(d)(2)(D).

Moreover, if all of the evidence were considered and admitted, a factfinder could find that Marin used his position as well as his relationship with Sanchez to have Sanchez communicate the threats. See Doc.279 at 7. As Marin’s subordinate, Sanchez was unlikely to decide on his own to threaten the claimants. There is no evidence Sanchez would have known about the meeting without Marin’s input. Nor did he have any apparent personal reason for wanting to get even with the claimants, including Ambrocio and Cirilo. Unlike Marin, Sanchez had not personally been accused of sexual harassment. It was Marin, not Sanchez, who had a motive to suppress the protected activity. Thus, if the evidence were admitted, a factfinder could determine that anything Sanchez did — both threatening the claimants and inducing Aguila to spy — was based on tacit or explicit orders from Marin, and, so, EFC. And, that when Sanchez said that “they” — he and another person — were planning to get even with the claimants, the other person referred to was Marin.

Evidence Rule 801(d)(2)(E). For similar reasons, the statements of Sanchez and Marin should be considered the statements of co-conspirators. Under Rule 801(d)(2)(E), statements made by a co-conspirator during the course and in furtherance of a conspiracy are not hearsay and are admissible against other conspirators. This rule, “based on concepts of agency and partnership law and applicable in both civil and criminal trials, embodies the long-standing doctrine that when two or more individuals are acting in concert toward a common goal, the out-of-court statements of one are admissible against the others, if made in furtherance of the common goal.” U.S. v. Gewin, 471 F.3d 197, 201 (D.C. Cir. 2006). Whether a conspiracy exists is an issue for the court and must be proved by a preponderance of the evidence. Bourjaily v. U.S., 483 U.S. 171, 175 (1987); Fed.R.Evid.104(a) (court decides preliminary questions about admissibility of evidence). While the content of the out-of-court statements may be considered in making this determination, see Bourjaily, 483 U.S. at 181, there must also be some “independent evidence” of the conspiracy. See, e.g., U.S. v. Gordon, 844 F.2d 1397, 1402 n.2 (9th Cir. 1988); Filco v. Amana Refrigeration, 709 F.2d 1257, 1268 (9th Cir. 1983) (noting that rule applies to civil as well as criminal conspiracies).

Here, if all of the evidence were considered and admitted, it would support a finding that Marin and Sanchez were working in concert towards a common unlawful objective — deterring protected activity both by spying on people who cooperated with the EEOC and by threatening to do them harm. A factfinder, viewing their parallel statements and actions from February through April (detailed infra), could find that the overlap was not mere coincidence.

For starters, Marin testified that he heard about the February 10 meeting almost as soon as it happened. ER-77. Rojas reported what and who he had seen at the library meeting because he understood that Marin would be interested in the information. ER-321-22 (Rojas). A jury could infer that Marin then promptly conveyed that information, along with some photographs, to Sanchez (Aguila testified he saw the men at the library taking pictures) because on February 11, Sanchez called Aguila and told him that “they” had photographs showing him at the meeting. He also said that “they” planned to “get even” with the people who cooperated with the Commission. See ER-212 (Aguila Decl.¶19). Sanchez then told Aguila to go to future meetings and spy — find out who was there, what kind of vehicle they drove, and when the next meeting was. In exchange, he or Marin would give Aguila work and would pay him well. Id.; see also ER-447 (“work in the orchard”).

A factfinder could find that Sanchez and Marin had carefully coordinated their actions: the very next day, Marin called Aguila and asked whether he had talked to Sanchez. Marin then repeated the offer of work and money in exchange for information. There was no need to repeat the threat. ER-212-13 (Aguila Decl.¶20). As Aguila stated, he “understood” the plural subject (‘they”) referred to Sanchez and Marin. Id. (Aguila Decl.¶20).

The following week, Aguila, with Ambrocio, called Sanchez, who told him “not to worry … they knew what they were going to do to Ambrocio and Cirilo.” See ER-392 (Ambrocio); ER-182-83 (Ambrocio Decl.¶10). Previously, Marin had tried to hire Aguila and others to kill Ambrocio. ER-213-14 (Aguila Decl.¶22).

Over the next few weeks, Aguila continued working for Marin and Sanchez, getting paid for his work, and reporting on the meetings. ER-444-46. In March, Sanchez warned Aguila not to sign anything or tell anyone about his spying activities because he knew the type of people he was dealing with; he should look out for his family. See ER-214 (Aguila Decl.¶23). Shortly thereafter, Marin repeated these directives and warned Aguila that he was powerful and had people who could hurt Aguila’s family. ER-215 (Aguila Decl.¶25). Finally, and significantly, Marin told Aguila that he would kill him if he cooperated with the Commission. ER-135 (Aguila).

Taken as a whole, these statements and actions strongly suggest that Marin and Sanchez were involved in a scheme to retaliate against the people, including Aguila, who were cooperating with the Commission. The fact that Aguila worked for both men — as an informant as well as a laborer — and got paid for both provides independent evidence of the conspiracy. Statements made in furtherance of their unlawful objectives should therefore be admitted and admissible against EFC.

The district court concluded that Marin’s February 12 question to Aguila — “Have you talked to Sanchez?” — did not include the threat but only the spying since that is what Marin mentioned. In reaching this decision, however, the court simply ignored most of the statements attributed to Marin.[4] The court also ignored other “independent” evidence of a conspiracy. Sanchez was Marin’s trusted subordinate, but he was a subordinate. Marin was the top dog — he even described himself as “powerful.” ER-135 (Aguila); ER-215 (Aguila Decl.¶25). Properly considered, the evidence indicates that Sanchez was quite unlikely to have hatched a scheme to “get even” with the people cooperating with the EEOC — thereby placing Marin and the company at risk — without Marin’s backing or endorsement.

Furthermore, the district court’s version of the evidence — that Marin acted in concert with Sanchez only with respect to the spying — suggests that Marin intended to monitor the activities of the participants and pay handsomely for that information essentially out of idle curiosity. Under that version, he did not intend to do anything with the information. Such an implausible understanding of the evidence is reversible error under any standard of review. See U.S. v. Silverman, 861 F.2d 571, 576-77 (9th Cir. 1988).

The district court analogized to Smith v. Bray, 681 F.3d 888 (7th Cir. 2012). ER-30-31. In Smith, the plaintiff sued the former HR director of his now-bankrupt employer for alleged retaliation in conspiracy with his former supervisor, with whom he had separately settled. 681 F.3d at 893-95. The case is inapposite. The Smith plaintiff focused his argument on one statement by Bray that was, at best, ambiguous: “if [the supervisor] is not going to talk to you, I’m not going to talk to you.” Id. at 904-05. In contrast, Marin made several statements that echo, or are echoed by, Sanchez and strongly suggest a common unlawful purpose. Moreover, as noted above, Marin was both Sanchez’s supervisor and the de facto head of Sunnyside ranch. As HR director, Bray had no such power over the supervisor in Smith.

The district court also concluded that, since it had found that Sanchez’s February 11 statement was not linked to Marin, nothing connected Marin’s later statements — explicit threats such as if you betray me, I can kill you — to Aguila’s “participation in the library meeting.” ER-30 (threats “stand in isolation”). Again, this simply ignores the bulk of Marin’s statements. For example, Aguila testified that Marin told Aguila “directly” that Marin would kill him if he cooperated with the Commission. ER-135 (Aguila); ER-215 (Aguila Decl.¶25). This statement alone would permit a finding that Marin was threatening Aguila and his family because of Aguila’s cooperation with the Commission both at and after the library meeting. Significantly, the Complaint does not limit protected activity to the “library meeting.” See Doc.649-50 (Complaint at ¶7 (“threats of physical harm and other intimidation if they continued to cooperate with and assist the Commission”)). Because the court failed to consider all of the evidence, the court abused its discretion — erred — in finding that Marin and Sanchez were not involved in an unlawful retaliatory scheme. Regardless of the standard of review, the ruling should be reversed. See Silverman, 861 F.2d at 576-77.

(b) Sufficient admissible evidence supports a finding that the nine claimants were victims of an alleged retaliatory practice.

While deferring judgment with respect to Aguila, the district court dismissed the Commission’s claims as to the other nine claimants. The court reasoned that, because they had heard about the threats indirectly, rather than directly from Sanchez, “no [admissible] evidence whatsoever” indicated that they had been threatened. And, the court concluded, because proof of the threats must be offered for its truth, any such evidence would be hearsay without an exception. See, e.g., ER-14. This misunderstands the nature of the Commission’s case and the hearsay rule.

In pertinent part, the Commission contends that EFC, through Sanchez and Marin, threatened all of the participants at the February 11 meeting, because of their cooperation with the Commission. That is the alleged violation. Assuming the conduct meets the objective Burlington Northern standard, the Commission can prove the violation with Aguila’s testimony and can supplement with Ambrocio’s testimony. The jury would be asked to believe those witnesses and to decide whether the conduct might deter a reasonable person in the claimants’ position from making or supporting a discrimination claim. If the jury so found, at a minimum, the Commission should be entitled to injunctive relief and, conceivably, punitive damages.

The claimants could then testify that they learned about the threats and how the threats affected them without incurring a hearsay problem. A statement is not hearsay if it is offered “to explain the circumstances” that ensued from the statement or to show the “effect of the statements on the listener.” U.S. v. Wahchumwah, 710 F.3d 862, 871 (9th Cir. 2013) (anonymous complaints that defendant was selling eagle parts admissible to explain why agents began investigating him); Faulkner v. Super Valu Stores, 3 F.3d 1419, 1434-35 (10th Cir. 1993) (manager’s testimony that he rejected ex-employees’ applications after hearing about low-morale and vandalism among those individuals admissible to explain not hiring ex-employees); Curtis Lumber Co. v. La. Pac. Corp., 618 F.3d 762, 782-83 & n.18 (8th Cir. 2010) (customers’ statements that they would withdraw their business unless retailer paid promised rebates admissible to show statements’ effect on listener).

Similarly, statements offered to show that the individual was on notice of a fact are not hearsay. See CalMat, 364 F.3d at 1124 (statements not hearsay where offered to show supervisors were aware of harassment); Thornburg v. Mullin, 422 F.3d 1113, 1128 (10th Cir. 2004) (statements not hearsay where “offered to show that [listener] was on notice that [the threat-maker] was intent on committing violence”). As the en banc Seventh Circuit stated, “It’s not hearsay to testify to what someone told you and what you thought the person meant as long as you’re not insisting on the truth of the matter asserted in the [out-of-court] statement.” U.S. v. Phillips, 731 F.3d 649, 653 (7th Cir. 2013) (citation omitted, original brackets) (en banc).

The district court rejected this argument, holding that the claimants’ testimony could not be offered to show, for example, the “effect on the listener” because, according to the court, “subjective feelings of a retaliation claimant are irrelevant.” ER-13 (citing ER-44). The court noted that in sexual harassment cases, evidence of similar acts of harassment may be admissible non-hearsay for the purpose of showing their subjective effect on the listener. Id. In contrast, the court stated, “there is no subjective component to retaliation claims.” Id.

This ruling mixes apples and oranges. The “reasonable person” standard does not alter the hearsay analysis. At most, the objective standard might implicate relevance, but in the context of this case (and most others), the claimants’ awareness of the threats plainly is relevant.

The Burlington Northern standard for materiality is objective, but materiality is assessed from “the perspective of a reasonable person in the [claimant’s] position.” 548 U.S. at 69. Clearly, the effect that the threats had on these claimants, while not dispositive, is highly relevant to that assessment. In addition, assuming a jury found materiality, the effect of the threats would bear on how much, if at all, each claimant was injured by the threats.

The district court expressed concern that because some of the claimants learned about the threat from counsel and asserted the attorney-client privilege, “it is unclear exactly what counsel was told by Aguila and, in turn, what counsel told the other claimants.” ER-14 (also questioning how counsel could effectively cross-examine the claimants). Only some of the claimants heard about the threats from counsel. At a minimum, Elodia, Ambrocio, and Cirilo had other sources. See ER-279-85, 307 (Aguila told Elodia); ER-365, ER-370, ER-182-83 (Ambrocio Decl¶10) (Ambrocio heard from Aguila and also directly from Sanchez); ER-225-26 (Cirilo Decl.¶2) (Ambrocio told Cirilo). In any event, these are matters going to the scope of relief, not to liability for the claim as a whole, since the fact and scope of the threats can be established without this testimony. While relevant at trial, they do not support entry of summary judgment.

II. Reasonable Jurors Could Find That In This Context, Spying And Eavesdropping On The Meeting With EEOC Constitute Actionable Retaliation.

The district court erred in holding as a matter of law that, without admissible evidence of the threats, there was no actionable retaliation because no reasonable person would have found the “mere presence of two men at the public library” to constitute a materially adverse action within the meaning of Burlington Northern. On the contrary, it is at least a jury question whether, viewed in context, the presence of persons spying and eavesdropping on a meeting with the Commission to discuss claims of sexual harassment by the “powerful” and “dangerous” foreman of the ranch might well deter reasonable persons in the position of the claimants from making or supporting such a claim.

As noted above, in explaining when an alleged retaliatory action should be considered “materially adverse” — that is, one that well might deter a reasonable person from making or supporting a discrimination claim — the Burlington Northern Court stressed two factors. First, materiality must be assessed from the perspective of a reasonable [former] employee in the position of the claimant. Second, “[c]ontext matters.” What might be considered immaterial in one context might well be material in another. See generally 548 U.S. at 68-69.

Here, both factors are critical. As noted above, a reasonable person in the claimants’ position would be a farm worker, speaking little or no English. That person would also have complained that her boss had sexually harassed her, be gathering courage to make such a complaint, or be a witness to such harassment.

As for context, the Commission scheduled the meeting at the local library in late afternoon on a random Wednesday. The people who attended had been invited either by the Commission or by another participant. The purpose was to discuss the investigation into the hostile work environment claims and the likelihood that suit would be filed. Because the suit and charges focused on the boss, who was, in his own words, both powerful and dangerous, reasonable people in the claimants’ position might well be apprehensive about attending the meeting.

Then, partway through the meeting, six of the participants — Valdez, Silva, Ambrocio, Aguila, Elodia, and Granados — noticed two men hanging out by the door, watching the participants and listening intently to the conversations; a seventh (Ramos) was told they were there and became apprehensive although he did not actually see the men. Several people thought they saw a cell phone; one believed a man was taking pictures. Five of the people recognized at least one of the men as an EFC employee; several knew that one man was very loyal to Marin. Several assumed, correctly, that one or both of the men would promptly report to Marin that they had been at the meeting with EEOC. Three were so distressed by the men’s presence that they immediately left the meeting.[5]

A jury, viewing this “constellation of surrounding circumstances, expectations, and relationships” (Oncale, 523 U.S. at 80), could easily find that a reasonable person in the position of these individuals would find the presence of these particular men at this particular place at this particular time doing nothing except eavesdropping on their conversations and taking notice of their attendance to be materially adverse. Because of the men’s known loyalty to Marin, reasonable persons in the claimants’ position would assume, correctly, that the men would report back to Marin on what they had seen and heard and, so, assist Marin to spy on and monitor their activities — essentially what Marin and Sanchez later induced Aguila to do. And they might well fear that Marin would learn that they were cooperating with the Commission’s investigation and, accordingly, take action against them. Cf. Rivera v. NIBCO, 364 F.3d 1057, 1065 (9th Cir. 2004) (noting that many immigrants are reluctant to report abusive or discriminatory employment practices for fear of retribution).

The district court’s contrary conclusion was error. Despite correctly summarizing the Burlington Northern holding, it does not appear that the court actually considered either the “context” or the perspective of a reasonable person in the claimants’ position. Indeed, the court never mentioned either factor. Nothing in the decision indicates that the court saw any difference between what actually happened and, for example, a chance encounter with the men while shopping at the grocery store. And, by granting summary judgment, the court evidently concluded that no reasonable juror could view the evidence any other way.

While the language of other labor law retaliation provisions is broader than Title VII’s, case law under those provisions provides a useful analogy for evaluating the impact of threatening behavior on employees. In Konop v. Hawaiian Airlines, 302 F.3d 868 (9th Cir. 2002), for example, this Court stated that under the Railway Labor Act, 45 U.S.C. §§151 et seq., “[a]bsent a legitimate justification, employers are generally prohibited from engaging in surveillance of union organizing activities” since such “surveillance tends to create fear among employees of future reprisals and thus chills an employee’s freedom to exercise his rights under federal labor law.” Id. at 884 (citation omitted). The Court also rejected an argument that the employer’s eavesdropping on an employee’s password-protected website did not appreciably limit the plaintiff’s activities. The Court stated that it is “the tendency to chill protected activities, not the actual chilling of protected activities, that renders eavesdropping and surveillance generally objectionable under federal labor law.” Id. (original emphasis).

Similarly, here, a jury could find that eavesdropping and spying on the claimants’ participation in the EEOC’s investigation had a tendency to chill protected activity, thus rendering it “objectionable” under Title VII. Indeed, that is what the court itself concluded after the four-day preliminary injunction hearing. See ER-685 (EEOC v. Evans Fruit, No.10-3033 (E.D. Wash.), Doc.180 at 7 (“Marin was monitoring those who alleged he had engaged in sexual harassment/discrimination of female employees”)). In light of this “monitoring” — spying — the court also found “affirmative evidence from which it can be inferred that a chill of Title VII protected activity has occurred or is threatened.” ER-694 (id. at 16). And even assuming a jury could agree with how the court analyzed the evidence on summary judgment rather than after the preliminary injunction hearing, that simply confirms the existence of material issues of fact that need to be resolved at trial. Summary judgment was therefore inappropriate.

III. Everyone Who Attended The Library Meeting With EEOC Was Protected By Section 704(a)’s “Participation Clause.”

The district court held that Francisco Ramos was not protected by Title VII’s anti-retaliation provision because he did not attend the library meeting as a “potential witness or claimant” but only to accompany his wife. This was error.

As noted above, §704(a) of Title VII prohibits discrimination against an individual because he has “assisted or participated” “in any manner” in an “investigation or proceeding” under Title VII (the participation clause) or has “opposed any practice” made unlawful under the statute (the opposition clause). 42 U.S.C. §2000e-3(a). At issue here is the participation clause. The purpose of that clause “is to protect the employee who utilizes the tools provided by Congress to protect his rights.” Sias, 588 F.2d at 695; see also Hashimoto v. Dalton, 118 F.3d 671, 680 (9th Cir. 1997) (protects “participation in the machinery set up by Title VII to enforce its provisions”) (citation omitted). Coverage under this clause is broader than under the opposition clause, which protects employees who oppose conduct they “reasonably believe to be an unlawful employment practice.” See Sias, 588 F.2d at 695.

Here, a jury could find that Ramos’s conduct falls comfortably within the plain language of the participation clause — assistance or participation “in any manner” in an EEOC “investigation” or other “proceeding” under Title VII. Ramos attended the meeting, at EEOC’s invitation, to support his wife — the original charging party — and stood ready to provide assistance, as needed, to her and EEOC.

In any event, the provision also extends to people the employer perceived to be engaging in protected activity, even if they were not. See Fogelman v. Mercy Hosp., 283 F.3d 561, 571-72 (3d Cir. 2002); cf. Reich v. Hoy Shoe Co., 32 F.3d 361, 367-69 (8th Cir. 1994) (same under Occupational Safety and Health Act). Because the laws “focus on the employer’s subjective reasons” for taking adverse action, “it matters not whether the reasons behind the employer’s discriminatory animus are actually correct as a factual matter.” Fogelman, 283 F.3d at 571-72; cf. Hashimoto, 118 F.3d at 680 (district court erred in “looking behind” plaintiff’s contact with an EEO officer).

Here, it was certainly not apparent to third parties why Ramos was at the meeting. Nor were the threats limited to “potential witness[es] or claimant[s]” (ER-43). Rather, they extended indiscriminately to anyone who attended the meeting and cooperated with the Commission. Ramos therefore should be covered whether his attendance were considered active participation or he simply fell within the “zone of interests” protected by the statute. See Thompson , 131 S. Ct. at 870-71.

In conclusory terms, the district court rejected any analogy to Thompson. See ER-43-44; ER-16-17. The court concluded that Ramos’s “situation” was “clearly factually distinguishable” from that in Thompson because the plaintiff there worked for the same company as his fiancée and he was fired after she filed a charge. See id. But the court did not explain why those distinctions are material. They are not. Ramos and his wife had worked for the same company, and he was threatened after she filed a charge. Moreover, whereas Ramos actually attended the meeting with EEOC to support his wife and was, a jury could find, retaliated against on that basis, nothing in Thompson suggests that the plaintiff there engaged in any protected activity; he simply planned to marry someone who filed a charge against his same employer. Yet, the Supreme Court held that he fell within the zone of interests sought to be protected by the statute. See 131 S. Ct. at 870-71. The district court’s conclusion here that no reasonable juror could find the same was true for Ramos cannot be reconciled with Thompson and, so, should be reversed.

In contrast, the court did find a jury question regarding whether Aguila engaged in protected activity when he attended the meeting to tell EEOC, among other things, that Marin had offered to pay him $500 in exchange for sex with Elodia. According to the court, “To establish that he engaged in protected activity,” Aguila “need only show that ‘[he] had a reasonable belief that the employment practice he protested was prohibited under Title VII.’” ER-20 (citing Sias, 588 F.2d at 695).

That was the right result but for the wrong reason. The “reasonable belief” standard applies only to the opposition clause. There is no such requirement under the participation clause. Aguila’s participation was shielded by the statute regardless of the merits of his discrimination complaints. See Sias, 588 F.2d at 694-95.

CONCLUSION

For the foregoing reasons, the judgment below should be reversed and the case remanded to the district court for trial in conjunction with the remaining pending claims.

Respectfully submitted,

P. DAVID LOPEZ

General Counsel

CAROLYN L. WHEELER

Acting Associate General Counsel

JENNIFER S. GOLDSTEIN

Acting Assistant General Counsel

s/ Barbara L. Sloan

BARBARA L. SLOAN

Attorney

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION

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

Washington, DC 20507

Phone: 202-663-4721

FAX: 202-663-7090

Dated: 19 May 2014 barbara.sloan@eeoc.gov

Corrected: 3 June, 2014

CERTIFICATE OF COMPLIANCE

This brief contains13,551 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

This brief’s type face and type size comply with Fed. R. App. P. 32(a)(5)-(6).

/s/Barbara L. Sloan

BARBARA L. SLOAN

Dated: 19 May, 2014

Corrected: 3 June, 2014

STATEMENT OF RELATED CASES

This appeal is somewhat related to EEOC, et al. v. Evans Fruit Co., Nos. 13-35885 & 13-35886 (9th. Cir.), which also concerns Title VII discrimination at Evans Fruit and is presently on appeal in the Ninth Circuit.

CERTIFICATE OF SERVICE

I certify that on June 3, 2014 (having filed the original on May 19, 2014), I electronically filed the foregoing Corrected Brief of Plaintiff-Appellant Equal Employment Opportunity Commission with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by uploading an electronic version of the motion via this Court’s Case Management/Electronic Case-Filing System (CM/ECF). I certify that all parties are represented by registered CM/ECF users and that service will be accomplished by the CM/ECF system.

/s/Barbara L. Sloan

BARBARA L. SLOAN

Dated: 19 May, 2014

Corrected: 3 June 2014

42 U.S.C.A. § 2000e-3

42 U.S.C.A. § 2000e-3

United States Code Annotated Currentness

Title 42. The Public Health and Welfare

Chapter 21. Civil Rights (Refs & Annos)

Subchapter VI. Equal Employment Opportunities (Refs & Annos)

§ 2000e-3. Other unlawful employment practices

(a) Discrimination for making charges, testifying, assisting, or participating in enforcement proceedings

It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment, for an employment agency, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs, to discriminate against any individual, or for a labor organization to discriminate against any member thereof or applicant for membership, because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.

29 U.S.C.A. § 157

29 U.S.C.A. § 157

United States Code Annotated Currentness

Title 29. Labor

Chapter 7. Labor-Management Relations (Refs & Annos)

Subchapter II. National Labor Relations (Refs & Annos)

§ 157. Right of employees as to organization, collective bargaining, etc.

Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 158(a)(3) of this title.

29 U.S.C.A. § 158 (a)-(c)

29 U.S.C.A. § 158 (a)-(c)

United States Code Annotated Currentness

Title 29. Labor

Chapter 7. Labor-Management Relations (Refs & Annos)

Subchapter II. National Labor Relations (Refs & Annos)

§ 158. Unfair labor practices

(a) Unfair labor practices by employer

It shall be an unfair labor practice for an employer--

(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title;

(2) to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it: Provided, That subject to rules and regulations made and published by the Board pursuant to section 156 of this title, an employer shall not be prohibited from permitting employees to confer with him during working hours without loss of time or pay;

(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization: Provided, That nothing in this subchapter, or in any other statute of the United States, shall preclude an employer from making an agreement with a labor organization (not established, maintained, or assisted by any action defined in this subsection as an unfair labor practice) to require as a condition of employment membership therein on or after the thirtieth day following the beginning of such employment or the effective date of such agreement, whichever is the later, (i) if such labor organization is the representative of the employees as provided in section 159(a) of this title, in the appropriate collective-bargaining unit covered by such agreement when made, and (ii) unless following an election held as provided in section 159(e) of this title within one year preceding the effective date of such agreement, the Board shall have certified that at least a majority of the employees eligible to vote in such election have voted to rescind the authority of such labor organization to make such an agreement: Provided further, That no employer shall justify any discrimination against an employee for nonmembership in a labor organization (A) if he has reasonable grounds for believing that such membership was not available to the employee on the same terms and conditions generally applicable to other members, or (B) if he has reasonable grounds for believing that membership was denied or terminated for reasons other than the failure of the employee to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership;

(4) to discharge or otherwise discriminate against an employee because he has filed charges or given testimony under this subchapter;

(5) to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 159(a) of this title.

(b) Unfair labor practices by labor organization

It shall be an unfair labor practice for a labor organization or its agents--

(1) to restrain or coerce (A) employees in the exercise of the rights guaranteed in section 157 of this title: Provided, That this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein; or (B) an employer in the selection of his representatives for the purposes of collective bargaining or the adjustment of grievances;

(2) to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a)(3) of this section or to discriminate against an employee with respect to whom membership in such organization has been denied or terminated on some ground other than his failure to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership;

(3) to refuse to bargain collectively with an employer, provided it is the representative of his employees subject to the provisions of section 159(a) of this title;

(4) (i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services; or (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is--

(A) forcing or requiring any employer or self-employed person to join any labor or employer organization or to enter into any agreement which is prohibited by subsection (e) of this section;

(B) forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person, or forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees unless such labor organization has been certified as the representative of such employees under the provisions of section 159 of this title: Provided, That nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing;

(C) forcing or requiring any employer to recognize or bargain with a particular labor organization as the representative of his employees if another labor organization has been certified as the representative of such employees under the provisions of section 159 of this title;

(D) forcing or requiring any employer to assign particular work to employees in a particular labor organization or in a particular trade, craft, or class rather than to employees in another labor organization or in another trade, craft, or class, unless such employer is failing to conform to an order or certification of the Board determining the bargaining representative for employees performing such work:

Provided, That nothing contained in this subsection shall be construed to make unlawful a refusal by any person to enter upon the premises of any employer (other than his own employer), if the employees of such employer are engaged in a strike ratified or approved by a representative of such employees whom such employer is required to recognize under this subchapter: Provided further, That for the purposes of this paragraph (4) only, nothing contained in such paragraph shall be construed to prohibit publicity, other than picketing, for the purpose of truthfully advising the public, including consumers and members of a labor organization, that a product or products are produced by an employer with whom the labor organization has a primary dispute and are distributed by another employer, as long as such publicity does not have an effect of inducing any individual employed by any person other than the primary employer in the course of his employment to refuse to pick up, deliver, or transport any goods, or not to perform any services, at the establishment of the employer engaged in such distribution;

(5) to require of employees covered by an agreement authorized under subsection (a)(3) of this section the payment, as a condition precedent to becoming a member of such organization, of a fee in an amount which the Board finds excessive or discriminatory under all the circumstances. In making such a finding, the Board shall consider, among other relevant factors, the practices and customs of labor organizations in the particular industry, and the wages currently paid to the employees affected;

(6) to cause or attempt to cause an employer to pay or deliver or agree to pay or deliver any money or other thing of value, in the nature of an exaction, for services which are not performed or not to be performed; and

(7) to picket or cause to be picketed, or threaten to picket or cause to be picketed, any employer where an object thereof is forcing or requiring an employer to recognize or bargain with a labor organization as the representative of his employees, or forcing or requiring the employees of an employer to accept or select such labor organization as their collective bargaining representative, unless such labor organization is currently certified as the representative of such employees:

(A) where the employer has lawfully recognized in accordance with this subchapter any other labor organization and a question concerning representation may not appropriately be raised under section 159(c) of this title,

(B) where within the preceding twelve months a valid election under section 159(c) of this title has been conducted, or

(C) where such picketing has been conducted without a petition under section 159(c) of this title being filed within a reasonable period of time not to exceed thirty days from the commencement of such picketing: Provided, That when such a petition has been filed the Board shall forthwith, without regard to the provisions of section 159(c)(1) of this title or the absence of a showing of a substantial interest on the part of the labor organization, direct an election in such unit as the Board finds to be appropriate and shall certify the results thereof: Provided further, That nothing in this subparagraph (C) shall be construed to prohibit any picketing or other publicity for the purpose of truthfully advising the public (including consumers) that an employer does not employ members of, or have a contract with, a labor organization, unless an effect of such picketing is to induce any individual employed by any other person in the course of his employment, not to pick up, deliver or transport any goods or not to perform any services.

Nothing in this paragraph (7) shall be construed to permit any act which would otherwise be an unfair labor practice under this subsection.

The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this subchapter, if such expression contains no threat of reprisal or force or promise of benefit.

45 U.S.C.A. § 151

45 U.S.C.A. § 151

United States Code Annotated Currentness

Title 45. Railroads (Refs & Annos)

Chapter 8. Railway Labor (Refs & Annos)

Subchapter I. General Provisions (Refs & Annos)

§ 151. Definitions; short title

When used in this chapter and for the purposes of this chapter--

First. The term “carrier” includes any railroad subject to the jurisdiction of the Surface Transportation Board, any express company that would have been subject to subtitle IV of Title 49, as of December 31, 1995,, [FN1] and any company which is directly or indirectly owned or controlled by or under common control with any carrier by railroad and which operates any equipment or facilities or performs any service (other than trucking service) in connection with the transportation, receipt, delivery, elevation, transfer in transit, refrigeration or icing, storage, and handling of property transported by railroad, and any receiver, trustee, or other individual or body, judicial or otherwise, when in the possession of the business of any such “carrier”: Provided, however, That the term “carrier” shall not include any street, interurban, or suburban electric railway, unless such railway is operating as a part of a general steam-railroad system of transportation, but shall not exclude any part of the general steam-railroad system of transportation now or hereafter operated by any other motive power. The Surface Transportation Board is authorized and directed upon request of the Mediation Board or upon complaint of any party interested to determine after hearing whether any line operated by electric power falls within the terms of this proviso. The term “carrier” shall not include any company by reason of its being engaged in the mining of coal, the supplying of coal to a carrier where delivery is not beyond the mine tipple, and the operation of equipment or facilities therefor, or in any of such activities.

Second. The term “Adjustment Board” means the National Railroad Adjustment Board created by this chapter.

Third. The term “Mediation Board” means the National Mediation Board created by this chapter.

Fourth. The term “commerce” means commerce among the several States or between any State, Territory, or the District of Columbia and any foreign nation, or between any Territory or the District of Columbia and any State, or between any Territory and any other Territory, or between any Territory and the District of Columbia, or within any Territory or the District of Columbia, or between points in the same State but through any other State or any Territory or the District of Columbia or any foreign nation.

Fifth. The term “employee” as used herein includes every person in the service of a carrier (subject to its continuing authority to supervise and direct the manner of rendition of his service) who performs any work defined as that of an employee or subordinate official in the orders of the Surface Transportation Board now in effect, and as the same may be amended or interpreted by orders hereafter entered by the Board pursuant to the authority which is conferred upon it to enter orders amending or interpreting such existing orders: Provided, however, That no occupational classification made by order of the Surface Transportation Board shall be construed to define the crafts according to which railway employees may be organized by their voluntary action, nor shall the jurisdiction or powers of such employee organizations be regarded as in any way limited or defined by the provisions of this chapter or by the orders of the Board.

The term “employee” shall not include any individual while such individual is engaged in the physical operations consisting of the mining of coal, the preparation of coal, the handling (other than movement by rail with standard railroad locomotives) of coal not beyond the mine tipple, or the loading of coal at the tipple.

Sixth. The term “representative” means any person or persons, labor union, organization, or corporation designated either by a carrier or group of carriers or by its or their employees, to act for it or them.

Seventh. The term “district court” includes the United States District Court for the District of Columbia; and the term “court of appeals” includes the United States Court of Appeals for the District of Columbia.

This chapter may be cited as the “Railway Labor Act.”

45 U.S.C.A. § 152

45 U.S.C.A. § 152

United States Code Annotated Currentness

Title 45. Railroads (Refs & Annos)

Chapter 8. Railway Labor (Refs & Annos)

Subchapter I. General Provisions (Refs & Annos)

§ 152. General duties

First. Duty of carriers and employees to settle disputes

It shall be the duty of all carriers, their officers, agents, and employees to exert every reasonable effort to make and maintain agreements concerning rates of pay, rules, and working conditions, and to settle all disputes, whether arising out of the application of such agreements or otherwise, in order to avoid any interruption to commerce or to the operation of any carrier growing out of any dispute between the carrier and the employees thereof.

Second. Consideration of disputes by representatives

All disputes between a carrier or carriers and its or their employees shall be considered, and, if possible, decided, with all expedition, in conference between representatives designated and authorized so to confer, respectively, by the carrier or carriers and by the employees thereof interested in the dispute.

Third. Designation of representatives

Representatives, for the purposes of this chapter, shall be designated by the respective parties without interference, influence, or coercion by either party over the designation of representatives by the other; and neither party shall in any way interfere with, influence, or coerce the other in its choice of representatives. Representatives of employees for the purposes of this chapter need not be persons in the employ of the carrier, and no carrier shall, by interference, influence, or coercion seek in any manner to prevent the designation by its employees as their representatives of those who or which are not employees of the carrier.

Fourth. Organization and collective bargaining; freedom from interference by carrier; assistance in organizing or maintaining organization by carrier forbidden; deduction of dues from wages forbidden

Employees shall have the right to organize and bargain collectively through representatives of their own choosing. The majority of any craft or class of employees shall have the right to determine who shall be the representative of the craft or class for the purposes of this chapter. No carrier, its officers, or agents shall deny or in any way question the right of its employees to join, organize, or assist in organizing the labor organization of their choice, and it shall be unlawful for any carrier to interfere in any way with the organization of its employees, or to use the funds of the carrier in maintaining or assisting or contributing to any labor organization, labor representative, or other agency of collective bargaining, or in performing any work therefor, or to influence or coerce employees in an effort to induce them to join or remain or not to join or remain members of any labor organization, or to deduct from the wages of employees any dues, fees, assessments, or other contributions payable to labor organizations, or to collect or to assist in the collection of any such dues, fees, assessments, or other contributions: Provided, That nothing in this chapter shall be construed to prohibit a carrier from permitting an employee, individually, or local representatives of employees from conferring with management during working hours without loss of time, or to prohibit a carrier from furnishing free transportation to its employees while engaged in the business of a labor organization.

Fifth. Agreements to join or not to join labor organizations forbidden

No carrier, its officers, or agents shall require any person seeking employment to sign any contract or agreement promising to join or not to join a labor organization; and if any such contract has been enforced prior to the effective date of this chapter, then such carrier shall notify the employees by an appropriate order that such contract has been discarded and is no longer binding on them in any way.

Sixth. Conference of representatives; time; place; private agreements

In case of a dispute between a carrier or carriers and its or their employees, arising out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions, it shall be the duty of the designated representative or representatives of such carrier or carriers and of such employees, within ten days after the receipt of notice of a desire on the part of either party to confer in respect to such dispute, to specify a time and place at which such conference shall be held: Provided, (1) That the place so specified shall be situated upon the line of the carrier involved or as otherwise mutually agreed upon; and (2) that the time so specified shall allow the designated conferees reasonable opportunity to reach such place of conference, but shall not exceed twenty days from the receipt of such notice: And provided further, That nothing in this chapter shall be construed to supersede the provisions of any agreement (as to conferences) then in effect between the parties.

Seventh. Change in pay, rules, or working conditions contrary to agreement or to section 156 forbidden

No carrier, its officers, or agents shall change the rates of pay, rules, or working conditions of its employees, as a class, as embodied in agreements except in the manner prescribed in such agreements or in section 156 of this title.

Eighth. Notices of manner of settlement of disputes; posting

Every carrier shall notify its employees by printed notices in such form and posted at such times and places as shall be specified by the Mediation Board that all disputes between the carrier and its employees will be handled in accordance with the requirements of this chapter, and in such notices there shall be printed verbatim, in large type, the third, fourth, and fifth paragraphs of this section. The provisions of said paragraphs are made a part of the contract of employment between the carrier and each employee, and shall be held binding upon the parties, regardless of any other express or implied agreements between them.

Ninth. Disputes as to identity of representatives; designation by Mediation Board; secret elections

If any dispute shall arise among a carrier's employees as to who are the representatives of such employees designated and authorized in accordance with the requirements of this chapter, it shall be the duty of the Mediation Board, upon request of either party to the dispute, to investigate such dispute and to certify to both parties, in writing, within thirty days after the receipt of the invocation of its services, the name or names of the individuals or organizations that have been designated and authorized to represent the employees involved in the dispute, and certify the same to the carrier. Upon receipt of such certification the carrier shall treat with the representative so certified as the representative of the craft or class for the purposes of this chapter. In such an investigation, the Mediation Board shall be authorized to take a secret ballot of the employees involved, or to utilize any other appropriate method of ascertaining the names of their duly designated and authorized representatives in such manner as shall insure the choice of representatives by the employees without interference, influence, or coercion exercised by the carrier. In the conduct of any election for the purposes herein indicated the Board shall designate who may participate in the election and establish the rules to govern the election, or may appoint a committee of three neutral persons who after hearing shall within ten days designate the employees who may participate in the election. In any such election for which there are 3 or more options (including the option of not being represented by any labor organization) on the ballot and no such option receives a majority of the valid votes cast, the Mediation Board shall arrange for a second election between the options receiving the largest and the second largest number of votes. The Board shall have access to and have power to make copies of the books and records of the carriers to obtain and utilize such information as may be deemed necessary by it to carry out the purposes and provisions of this paragraph.

Tenth. Violations; prosecution and penalties

The willful failure or refusal of any carrier, its officers or agents, to comply with the terms of the third, fourth, fifth, seventh, or eighth paragraph of this section shall be a misdemeanor, and upon conviction thereof the carrier, officer, or agent offending shall be subject to a fine of not less than $1,000, nor more than $20,000 or imprisonment for not more than six months, or both fine and imprisonment, for each offense, and each day during which such carrier, officer, or agent shall willfully fail or refuse to comply with the terms of the said paragraphs of this section shall constitute a separate offense. It shall be the duty of any United States attorney to whom any duly designated representative of a carrier's employees may apply to institute in the proper court and to prosecute under the direction of the Attorney General of the United States, all necessary proceedings for the enforcement of the provisions of this section, and for the punishment of all violations thereof and the costs and expenses of such prosecution shall be paid out of the appropriation for the expenses of the courts of the United States: Provided, That nothing in this chapter shall be construed to require an individual employee to render labor or service without his consent, nor shall anything in this chapter be construed to make the quitting of his labor by an individual employee an illegal act; nor shall any court issue any process to compel the performance by an individual employee of such labor or service, without his consent.

Eleventh. Union security agreements; check-off

Notwithstanding any other provisions of this chapter, or of any other statute or law of the United States, or Territory thereof, or of any State, any carrier or carriers as defined in this chapter and a labor organization or labor organizations duly designated and authorized to represent employees in accordance with the requirements of this chapter shall be permitted--

(a) to make agreements, requiring, as a condition of continued employment, that within sixty days following the beginning of such employment, or the effective date of such agreements, whichever is the later, all employees shall become members of the labor organization representing their craft or class: Provided, That no such agreement shall require such condition of employment with respect to employees to whom membership is not available upon the same terms and conditions as are generally applicable to any other member or with respect to employees to whom membership was denied or terminated for any reason other than the failure of the employee to tender the periodic dues, initiation fees, and assessments (not including fines and penalties) uniformly required as a condition of acquiring or retaining membership.

(b) to make agreements providing for the deduction by such carrier or carriers from the wages of its or their employees in a craft or class and payment to the labor organization representing the craft or class of such employees, of any periodic dues, initiation fees, and assessments (not including fines and penalties) uniformly required as a condition of acquiring or retaining membership: Provided, That no such agreement shall be effective with respect to any individual employee until he shall have furnished the employer with a written assignment to the labor organization of such membership dues, initiation fees, and assessments, which shall be revocable in writing after the expiration of one year or upon the termination date of the applicable collective agreement, whichever occurs sooner.

(c) The requirement of membership in a labor organization in an agreement made pursuant to subparagraph (a) of this paragraph shall be satisfied, as to both a present or future employee in engine, train, yard, or hostling service, that is, an employee engaged in any of the services or capacities covered in the First division of paragraph (h) of section 153 of this title defining the jurisdictional scope of the First Division of the National Railroad Adjustment Board, if said employee shall hold or acquire membership in any one of the labor organizations, national in scope, organized in accordance with this chapter and admitting to membership employees of a craft or class in any of said services; and no agreement made pursuant to subparagraph (b) of this paragraph shall provide for deductions from his wages for periodic dues, initiation fees, or assessments payable to any labor organization other than that in which he holds membership: Provided, however, That as to an employee in any of said services on a particular carrier at the effective date of any such agreement on a carrier, who is not a member of any one of the labor organizations, national in scope, organized in accordance with this chapter and admitting to membership employees of a craft or class in any of said services, such employee, as a condition of continuing his employment, may be required to become a member of the organization representing the craft in which he is employed on the effective date of the first agreement applicable to him: Provided, further, That nothing herein or in any such agreement or agreements shall prevent an employee from changing membership from one organization to another organization admitting to membership employees of a craft or class in any of said services.

(d) Any provisions in paragraphs Fourth and Fifth of this section in conflict herewith are to the extent of such conflict amended.

Twelfth. Showing of interest for representation elections

The Mediation Board, upon receipt of an application requesting that an organization or individual be certified as the representative of any craft or class of employees, shall not direct an election or use any other method to determine who shall be the representative of such craft or class unless the Mediation Board determines that the application is supported by a showing of interest from not less than 50 percent of the employees in the craft or class.

Federal Rules of Civil Procedure Rule 54 (a)-(b)

Federal Rules of Civil Procedure Rule 54

United States Code Annotated Currentness

Federal Rules of Civil Procedure for the United States District Courts (Refs & Annos)

Title VII. Judgment

Rule 54. Judgment; Costs

(a) Definition; Form. “Judgment” as used in these rules includes a decree and any order from which an appeal lies. A judgment should not include recitals of pleadings, a master's report, or a record of prior proceedings.

(b) Judgment on Multiple Claims or Involving Multiple Parties. When an action presents more than one claim for relief--whether as a claim, counterclaim, crossclaim, or third-party claim--or when multiple parties are involved, the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay. Otherwise, any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities.

Federal Rules of Civil Procedure Rule 56

Federal Rules of Civil Procedure Rule 56

United States Code Annotated Currentness

Federal Rules of Civil Procedure for the United States District Courts (Refs & Annos)

Title VII. Judgment

Rule 56. Summary Judgment

(a) Motion for Summary Judgment or Partial Summary Judgment. A party may move for summary judgment, identifying each claim or defense--or the part of each claim or defense--on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The court should state on the record the reasons for granting or denying the motion.

(b) Time to File a Motion. Unless a different time is set by local rule or the court orders otherwise, a party may file a motion for summary judgment at any time until 30 days after the close of all discovery.

(c) Procedures.

(1) Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:

(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or

(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

(2) Objection That a Fact Is Not Supported by Admissible Evidence. A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.

(3) Materials Not Cited. The court need consider only the cited materials, but it may consider other materials in the record.

(4) Affidavits or Declarations. An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.

(d) When Facts Are Unavailable to the Nonmovant. If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may:

(1) defer considering the motion or deny it;

(2) allow time to obtain affidavits or declarations or to take discovery; or

(3) issue any other appropriate order.

(e) Failing to Properly Support or Address a Fact. If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may:

(1) give an opportunity to properly support or address the fact;

(2) consider the fact undisputed for purposes of the motion;

(3) grant summary judgment if the motion and supporting materials--including the facts considered undisputed--show that the movant is entitled to it; or

(4) issue any other appropriate order.

(f) Judgment Independent of the Motion. After giving notice and a reasonable time to respond, the court may:

(1) grant summary judgment for a nonmovant;

(2) grant the motion on grounds not raised by a party; or

(3) consider summary judgment on its own after identifying for the parties material facts that may not be genuinely in dispute.

(g) Failing to Grant All the Requested Relief. If the court does not grant all the relief requested by the motion, it may enter an order stating any material fact--including an item of damages or other relief--that is not genuinely in dispute and treating the fact as established in the case.

(h) Affidavit or Declaration Submitted in Bad Faith. If satisfied that an affidavit or declaration under this rule is submitted in bad faith or solely for delay, the court--after notice and a reasonable time to respond--may order the submitting party to pay the other party the reasonable expenses, including attorney's fees, it incurred as a result. An offending party or attorney may also be held in contempt or subjected to other appropriate sanctions.

Federal Rules of Evidence Rule 104

Federal Rules of Evidence Rule 104, 28 U.S.C.A.

United States Code Annotated Currentness

Federal Rules of Evidence (Refs & Annos)

Article I. General Provisions (Refs & Annos)

Rule 104. Preliminary Questions

(a) In General. The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege.

Federal Rules of Evidence Rule 801

Federal Rules of Evidence Rule 801, 28 U.S.C.A.

United States Code Annotated Currentness

Federal Rules of Evidence (Refs & Annos)

Article VIII. Hearsay (Refs & Annos)

Rule 801. Definitions That Apply to This Article; Exclusions From Hearsay

(a) Statement. “Statement” means a person's oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.

(b) Declarant. “Declarant” means the person who made the statement.

(c) Hearsay. “Hearsay” means a statement that:

(1) the declarant does not make while testifying at the current trial or hearing; and

(2) a party offers in evidence to prove the truth of the matter asserted in the statement.

(d) Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay:

(1) A Declarant-Witness's Prior Statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement:

(A) is inconsistent with the declarant's testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition;

(B) is consistent with the declarant's testimony and is offered to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or

(C) identifies a person as someone the declarant perceived earlier.

(2) An Opposing Party's Statement. The statement is offered against an opposing party and:

(A) was made by the party in an individual or representative capacity;

(B) is one the party manifested that it adopted or believed to be true;

(C) was made by a person whom the party authorized to make a statement on the subject;

(D) was made by the party's agent or employee on a matter within the scope of that relationship and while it existed; or

(E) was made by the party's coconspirator during and in furtherance of the conspiracy.

The statement must be considered but does not by itself establish the declarant's authority under (C); the existence or scope of the relationship under (D); or the existence of the conspiracy or participation in it under (E).

Federal Rules of Evidence Rule 802

Federal Rules of Evidence Rule 802, 28 U.S.C.A.

United States Code Annotated Currentness

Federal Rules of Evidence (Refs & Annos)

Article VIII. Hearsay (Refs & Annos)

Rule 802. The Rule Against Hearsay

Hearsay is not admissible unless any of the following provides otherwise:

• a federal statute;

• these rules; or

• other rules prescribed by the Supreme Court.

Federal Rules of Evidence Rule 803 (3)

(3) Then-Existing Mental, Emotional, or Physical Condition. A statement of the declarant's then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant's will.

[1] Because three people are surnamed “Marin,” this brief will refer to Juan Marin as Marin; Ambrocio Marin as Ambrocio; and Cirilo Marin as Cirilo. In addition, because two people are surnamed “Sanchez,” the brief will refer to Alberto Sanchez as Sanchez and Elodia Sanchez as Elodia. EEOC also notes that because nicknames are common in this workplace, evidence sometimes refers to Cirilo Marin as Jaime; Domingo Cuenca as Mingo; Alvaro Rojas as Grandulon; Ambrocio Marin as Crisanto or Mequetrefe; and Alberto Sanchez as Camello.

[2] The threats and commands of the woman in the red truck, which the court held were inadmissible hearsay (ER-53), likewise should be considered verbal acts.

[3] In the summary judgment order, the district court indicated that Marin’s statements were admissible as statements of an opposing party. ER-53. Thus, in moving for reconsideration, EEOC focused on Sanchez and did not identify other bases on which Marin’s statements would be admissible. On reconsideration, the court then specified that it meant Rule 801(d)(2)(A) (statements of an opposing party “in an individual or representative capacity”). ER-28. As discussed above, Rules 801(d)(2)(D) and (E) also apply to Marin, and EEOC’s Reconsideration Motion mentions both provisions albeit regarding Sanchez. See Doc.279 at 6-7. Since the court recognized that Marin’s statements are admissible under another section of Rule 801(d)(2), the Commission urges this Court to consider these other provisions. See U.S. v. Nat’l Union Fire Ins. Co., 234 F.3d 1278, 2000 WL 1171139, at *3 n.4 (9th Cir. Aug.17, 2000) (“This argument was not made before the district court, but we may examine it since this Court may uphold a trial court decision to admit evidence based on any grounds supported in the record.”) (unpublished).

[4] The district court mentioned only three statements that Aguila included in his Declaration — Marin’s February 12 phone call, his statement that he would kill Aguila if Aguila betrayed him, and his call to Aguila in San Diego. See, e.g., ER-28-30. There are various others.

[5] The district court mistakenly stated that only Aguila, Ambrocio, and Silva recognized Cuenca and Rojas. ER-17-18. In fact, evidence supports a finding that Valdez also knew who they were (ER-235-36) and Elodia recognized one or both. ER-302 (Mingo and another EFC employee). Although Cirilo did not see the men, he knew their names and became frightened when he heard that they were there.