case where under our standard protocols it was set for fifteen minutes per se but i'm not going to be entirely tough on that needle another minute or two but i appreciate that your honor may it please the court i'm gail coleman for the equal employment opportunity commission and i would like to try to reserve six minutes for a bottle at issue in this case is whether the growers can be liable for conduct that occurred outside the orchards and whether this lawsuit which is premised in part on the belief that they can is frivolous unreasonable or without foundation in ruling against the e e o c at the district court made errors of law and of fact the courts first error occurred in the motion to dismiss where the court held that the growers could not be li as joint employers for anything that happened outside the orchards the joint employer test looks at whether entities have shared control over the terms and conditions of employment when looking at shared control the court is supposed to look at the reality of the situation not simply at the language of a contract in her civic maritime which is persuasive authority in this circuit the court laid out many different factors that should be considered for the could be considered for shared control and said it all depends on the context here the court's fundamental error was looking only at what was in h two a agreements the court said that the e e o c had not alleged anything in the first amended complaint that would support a finding that the growers shared control over anything that happened outside the orchards this statement was untrue the court ignored factual allegations in paragraphs eleven and nineteen of the first amended complaint the e e o c alleged the three growers own or control housing and transportation in taurus lopez which is an agricultural case just like this one the court held that ownership means that growers can likely prevent labor laws while asians now it's true that  taurus lopez the ownership involved ownership of the land where things were being grown but there is no principled reason to distinguish ownership of worker housing in particular here where we have foreign impoverished foreign workers brought over who are completely dependent on their employers for their housing let me let me interrupt you for a minute cancel the the growers paid an extra surcharge to globe to make sure the global took care of the housing and transportation and you cited some cases to us how does this cut with race we rimington circuit case well first of all in raise  the there is evidence in remington there is evidence that the growers and the other entity had agreed that there would be no housing provided which is very different from here and then even though the court here denied us discovery into questions of housing and ownership and control we nevertheless did learn in discovery that valley fruit actually did own the royal city house and there was evidence that valley fruit retains control and was responsible for the maintenance in that house we don't know about the rest of the housing because we weren't allowed to investigate but certainly given what we found out later in discovery it was not an untrue or frivolous or certainly implausible allegation that the growers here did own and or control the housing just in only in paragraphs ten and eighteen of the first amended complaint we allege that the growers participated in the preparation of payroll and to the payment of wages now that is not what the h two a agreement said would happen but again the court is supposed to look at the reality not just with the agreement said but what actually happened on the ground and a motion to dismiss the court is required to believe the e e o c as allegations and then finally with respect to whether the growers knew or should have known of what was going on paragraphs one hundred thirty two one hundred forty and one hundred sixty eight allege was a thai clamens but he spoke english well enough that he served as an interpreter and he testified that he told the growers he specifically told the growers about what was going on additionally we learned in discovery that the growers actually visited the houses and that they were there on the fields every day when the claimants got on and off the buses and saw for themselves that the transportation was overcrowded and unsafe so what the e e o c alleged and what we believe discovery show and what further targeted discovery which was denied to us would have confirmed is that the growers knew what was going on had some control over what was going on but chose to stick their heads in the sand and profit from the labor of these impoverished tie claimants and that they did this on the basis of race or national origin and our evidence for that also happened later in discovery but that was that when global told the growers it was going out to recruit workers for them global said to them we are going to go get thai claimants and the reason for that is that in our experience the thai claimants work very hard they are compliant they won't be complaining they won't sue you unlike mexican workers and the the growers assented to that so they knew exactly what was going on and they knew why they were getting the thai workers and that certainly was a red flag indicating that they should have gone to see what was going on we also were denied discovery into whether the growers were aware of the fact that prior to these contracts global had been in trouble with state and federal authorities for housing violations for other h two a violation zz and whether that should have put the to dismiss at that stage have been good without prejudice to being renewed and i motion for judgment after yes of course it could have been but it was it was and then that erroneous dismissal of everything that happened outside the orchards had spillover effects which poisoned the rest of this litigation for example with respect to summary judgment the dismissal order cut e e o c is hostile work environment claim and half lopped off everything that happened outside the orchards so that the claim looked weaker we still think as we explained in our briefs that what happened on the orchard's was enough standing alone to support a hostile work environment claim for example the outrageous quotas there is evidence at page six hundred sixteen eighty one of the excerpts of records that the standard quota in the industry was three to four bins per day and then at page ten sixty three we see that the growers were imposing quotas on the thai claimants only on the thai claimants of eighteen to twenty bins per day so we do think that that was enough but then going beyond the summary judgment when it came time to agree for all the reasons i've just said but in addition on summary judgment the court denied summary judgment on what was left of the joint employer theory so how could the theory have been frivolous at the outset the other thing the court relied upon was it is about whether litigation itself is frivolous unreasonable or without foundation and for litigation just like for any private litigation that should be assessed based on what happens there when the e yossi was given hundred sixty four in title seven we were given instructions to investigate we were told to take charge is to investigate to make a reasonable cause determination and then if necessary to conciliate the purpose of the investigation was to set all of that up to promote voluntary compliance and that remains the emphasis of title seven is voluntary compliance that's why we do our investigation in one nine hundred seventy two we were given litigation authority but there was nothing said no requirement imposed that with this litigation authority we had to do anything different with our investigation there are policy reasons why this court should not be second guessing our invasive investigation and i would point out that no court of appeals has ever awarded attorney's fees against the e e o c based on our investigation but certainly if a court were to go back and look for the purpose of attorney's fees that would change the nature of our investigations we would always have to be looking over our shoulder at how a court would assess that down the road at the end of possible litigation it would slow things down it would interfere with an already overburdened agency and it would interfere with the ability to get good morning it may please the court who's the one who by one side is we're still stuck florence for greenacre farms and valley fruit orchards i'm going to refer to the police as the growers which is the appropriate term for their operations in the agricultural industry of the four rulings e e o c appeals to are reviewed and over and two for an abuse of discretion we respectfully submit that regardless of the standard of review the growers submit that the answer to each question is the same review the record and affirm before continuing i would like to address the record that was before the district court below and the record that the e e o c has relied upon appeal grower submitted a color coded excerpt of the if he's opening brief as a reference tool the red color coded highlights the e e o c reliance on an uncontested record developed after default on the full proceedings against global after the growers had been dismissed from the case and after they had been awarded their fees as prevailing defendants we submit that the e e o c is reliance on that post grower dismissal record is improper and it's misleading in this appeal since none of that was before the district court on the issues that are actually before this court on appeal but wouldn't when we have to take into account what the c learned later on the theory that well perhaps they could have amended that complaint had they destroy korg randomly to do so they never moved to do so they conducted discovery in the case they had ample opportunity to depose witnesses well produce their own i'm talking about the time your client's motion was granted right at the e e o c not say sorry i misunderstood the court's question the issue was the first on the first amenity complaint was the absolute paucity of any plausible facts that could give rise to a reasonable inference that guess i'm just questioning why that would be they they obviously could have amended their complaint at the beginning given leave to do so to add in those additional facts that we now know right it is conceivable yes however looking at the record as a whole you know if we're if we're going to look ahead and say well what could have been discovered a pain in discovery we need to also ask what was a pain in discovery there's the characterization of the royal city house for example and the argument that the e e o c put forward in on the peel and below was that well the growers it should have been on notice that there was something a iss that they should have cause them to investigate and discover violations of title seven because the department of labor and industries determine that it window on the second floor of a house where the each way workers were housed by global was missing a screen that was the violation on one house of violation on another house of the an example of what the characterized below it on appeal of deplorable living conditions or smoke detectors that were not present in every i hope you're not here to say that the workers actually enjoyed the lap of luxury i think that would be a disgraceful the it is there is no dispute that the conditions they were forced to live in were deplorable so i don't think you should stand there and waste time trying to say that all that was being complained of was a missing screen or a fire extinguisher i think that's outrageous but there are the only question is whether your client should be held responsible for the extremely agree just misconduct committed by global it seems to me that's the issue here and that's the issue under title seven right now why would you stand there and try to minimize the pleasurable conditions in which these workers were forced to live i don't understand that and declarations from some of the workers who said no we in fact complain directly to the growers about the conditions we were in the fact that we didn't have enough food to eat that we told them that directly told your clients that directly and nothing was done to address and no way were actual specific and substantial facts supporting those conclusory allegations produced in discovery there was no testimony by any claimant that on x day  hour on this property i spoke with why a person and said the following they understood me and they did nothing or they dismissed me there's no evidence in the record of that nature there is evidence  the declaration testimony that was just to refer to suggesting that valley fruit orchards was on notice because a claimant had told someone it a very conclusory statement stating i told valley fruit i complained about housing conditions that's it it wasn't about the royal visit royal city is that the  housing house that your client and that is a home that valley fruit and leased to global well i don't know who was not but valley fruit had no relationship or landlord tenant relationship with the individual claimants that was independently so i thought that have a valley fruit employee actually live there with the workers and so obviously obviously would have been aware of whatever the conditions there were and going to the merits of ok let's evaluate that under title seven if another employer valley fruit were living on that property how then were the type workers treated differently what was the discriminatory conduct and was any of it based on race if and there's no allegation that this other employee was tire wasn't high there's no detail there are no facts to support the inference that the e e o c is asking this court to make that knowledge suppose title seven and you know whether or not there was a title seven claim but what you didn't answer at least not to my satisfaction is the fact that let's go back to the knowledge of the conditions if there was an employee living in that house the house was owned by the grower ok now maybe he wasn't you know he wasn't directly leasing it somebody intervened in the lease but shouldn't that be part of the economic reality of whether this person is a joint employer or not the knowledge the inference that can be made just conditions we're not talking now about the title seven elements just we're now only talking about whether that knowledge can be imputed to the grower will see there's nothing in the record to support an inference that the conditions of the real city house were such that could give rise to that knowledge or it should have known some indication that investigation was necessary one of the one of the i think realities that is overlooked in has been overlooked in this case is how heavily regulated this industry is the department of labor and industries the department of labor the department of homeland security were all involved in this process that was required for global horizons to recruit workers and bring them to the united states and work throughout the united states they worked in washington california why elsewhere throughout the united states the department of labor and industries i had they inspected the housing and the violations they found were not you know out of the ordinary they're in the record of and i don't mean to minimize the experience that is alleged that these individuals experienced i do not mean to minimize that what i do mean to say is where is the inference that the violations that were actually found in the record of the housing conditions smoke detectors screens the weren't the violations were not over flooding septic systems the violations were not deplorable housing conditions it was this is unsafe because there's no smoke detector in every bedroom there are there are there is one too many beds in this bedroom global you need to fix that and essentially they submitted a plan to the department of labor and industries documenting how they were going to address the specific issues and labor and industries followed up and i asked you this if i think the only way the e e o c could prevail here is if there is something unique about this h two a program that because normally an employer we know wouldn't have responsibility for transportation and housing and said you know providing food in the like right that would just be on the employees themselves but is there something unique about the program that basically puts the obligation on you as the employer to provide each of those things now obviously you can delegate responsibility for that to somebody else but i guess that's where i'm having trouble maybe with your client's position is that you kind of want to offload all of these responsibilities that the immigration program puts on you as the employer and then basically just say as long as we don't know anything about it we can't be held responsible i guess i question whether that's the right way to approach this so the reality at work here is each to a clearance order issued by the department of labor identify global horizons as the employer valley for three acre farms never employ these individuals they were not involved in any of those non orchard related activities that are  and that is the that is we think the very sound distinction that the district court made as to activities on the orchard where each grower identified a need for work thinning harvest whatever it was global had contracted to provide the workforce and that workforce was comprised not only of the tie age to a workers that was comprised of domestic migrant seasonal workers as well and they were not tie obviously they were domestic so valley fruit and green acre farms both retain discretion to identify work that needed to be done but global horizons had absolute discretion about who would be transported how they would be transported to the work site who would actually do the work valley fruit and greenacre farms actually never communicated directly with these these h two i guess workers they communicated with global allegations that people want some of the workers whether they were supervisors or the actual workers spoke to people who worked for the growers directly and reiterated that some of these things were wrong the housing the lack of food i mean isn't there just viewed as to whether that happened or not again i would sit go back to the record and look at exactly what is allegedly in support of those allegations of  workers complaining the example provided by the sea today was of the declarant summary judgment about whom the you know c had produced a name and dates of work in discovery they had the government had in discovery had identified no specific allegations of conduct toward that worker no racial slurs or epithets whatsoever for any worker but as summary judgment that individual declar ant declared that in very vague and conclusory terms i complained to valley fruit about the housing conditions again where is the specific and substantial evidence necessary to get to get past itself within its four corners are inadequate to satisfy a joint employer test because if the joint employer status applie then i think that your clients would have to answer for the things that global horizons the four corners of the complaint can include the each to a clearance order that delineates what global was responsible for and what valley fruit and green acres would be responsible for the responsibilities were clearly delineated in the eleventh circuit recently in the last eighteen months or so decided a case it was consolidated citrus where this distinction between the h two a obligations and the on orchard obligations was recognized this is not a case where valley fruit or green acre farms ever issued payroll or had any role in payroll they had no role in hiring these individuals they never in the strict adverse employment action sense of firing someone or demoting someone suspending someone from the workplace they never had any role in that by contract but in fact that never occurred either so it's difficult for the claimant claimants here to get over that joint employer hump where the complaint allegations delineate themselves global recruited global transported global housed global paid global provided subsistence that inadequate the allegations in the complaint about green acre farms in valley fruit are they set quotas they made us work hard and sometimes they yelled at us there's no allegation of rape or racial epithets epithets or derogatory statements about thailand or the people of thailand nothing against valley for greenacre farms the allegations are strictly related to orchard related activities i'll give you another minute or two if you need your honour's i just want to reiterate that this was indeed as the district court found an exceptional case from th start the case should never have had been filed with claims against green acre farms in valley fruit the interview statements of the claimants and the personal claimants charging party personal statements that were part of the as investigative record before they filed suit every single one consistently stated no one made any derogatory comments about my race or national origin or religion or consistently stay in that  breath the complaints were consistently i didn't get enough work global didn't pay me global owed me money i left because i didn't want to because i needed to earn more money because of my debt in thailand there were no allegations no statements provided to the e e o c about valley fruit or green acre farms there were consistently no complaints about them and that is the totality of the circumstances analysis that the district court and gauged in on the burgerman motion for fees under title seven what did the e e o c know what did they have a case when they filed the complaint the question is not did they conduct an adequate investigation did they conduct a reasonable fantastic investigation or a lousy one it's what did what was in the e e o c has filed docket on this matter when the attorneys decided that they were going to file claims for a hostile work environment retaliation discrimination disparate impact or disparate treatment rather constructive discharge when those claims were filed against valley fruit and greenacre farms did they have a case and throughout the case how do you respond to your opponent's point which is obviously correct that at least for half of the case or whatever we want to call the orchard related portion of it i mean that that part of the case survives summary judgment so how could the district court legitimately say that the entire action was just it was completely frivolous because on the merits it was certainly there was a ssion about the orchard related activities whether valley fruit or green acre farms could be found by reasonable jury to be a joint employer the second step is then is what are the merits of the of the potential liability there and  there's simply nothing in the record implicating direct conduct by valley for green acre farms or conduct that they knew or should have known about that was within their area of control that they had that they were negligent in not correcting in a manner error through means that were actually within their control everything was occurring that was complained about about either in the past at the time of recruitment the housing decisions that global made transportation value fruit not control those issues they didn't control those day to day activities they did have influence and we think the district court you know got it right on the motion to dismiss and there's a pretty good there's a pretty good argument at the end as well that a reasonable jury could find that for orchard related activities assignments on where the global needed to bring their workforce what the season crop and whether dictated needed to happen on the orchards those were decisions through the h two a agreement and in fact in the evidence that we're with in valley fruit in green acres discretion and they exercise that discretion but beyond that they did not pay council have i think year over y honor certainly there was evidence that the growers directly discriminated based on national origin and for example i'll go back to what i said about the quotas it was the growers who set the quotas and they were highly discriminatory what they did to the thai workers was outrageously beyond what the standard in the industry was we also have a claimant promise and who worked for at least one day with the mexican workers who said that work was easier if they weren't climbing ladders and they weren't having to carry ladders by hand for three miles a day to the extent that the growers are relying on what happened during priest suit interviews i have a few responses to that one is that they are cherry picking from those interview statements  some of the statements for example of what they're alleging are inconsistency is referred to statements about what happened on other farms not on the at healy's farms additionally they only point to a handful of statements there were other preinterview statements where claimants did complain about the conditions but more importantly i would say that again this happened during our administrative investigation these statements or not sworn testimony faye involved  official interpreters working over a telephone there are a lot of reasons why a jury faced with those statements and faced with subsequent death liberations could make a credibility determination that what happened in the declarations which happened later on which the claimants read in thai translated by professional interpreters before they signed to them that those were more credible and certainly they would be testifying at trial as well with respect to just cover it we were limited in what we were able to ask for the district court had said that everything that happened off the orchards was irrelevant so we couldn't probe into that to the extent that the app ellie's are saying we came up with things not until after they moved for summary judgment how is that fair i will point out that discovery was still open when the growers moved for summary judgment they cut it off they could have kept going in fact they even cancelled one of their scheduled depositions the growers are saying that the e e o c did not come up with sufficiently specific facts they want to know when when straight on call it for example went and talked to the growers who specifically did you talk to and on what date and what specifically did they say these are not that's not necessary a jury could listen to his testimony and say he complained they knew and they also knew because they went and they visited the houses can i just admission of these workers is conditional upon somebody in the us providing them with transportation housing and the like that basically an employer really cannot delegate those responsibilities you know in the way that the growers try to do here is theory for why they are joint employers as to the non ortrud related matters right so that i'm sorry if you can bear with me for just a minute that's where i was trying to go so if if the growers did have some shared control then the question moves to liability what can they be liable for can they be liable for conduct only on the orchard can they be liable for all the conduct that these employees as terms and conditions of their employment were subjected to and the answer to that turns on what they knew or should have known and then was it within their power to correct violations but but but no because the through i'm saying outside of the h two a program right let's say that i i'm just i'm  on a farm and i i hire an independent contractor like lobel to go out and recruit the workers right and in the normal scheme of things i would have no interest responsibility whatsoever and where they live what kind of food they get that's none of my business right and so that's what i'm asking ok ordinarily outside of this unique program i would not think of the employer just because i contracted with this global outfit that i would then all of a sudden be liable for if they're not getting adequate food if they have know adequate shelter that why would i be liable for yes and yes and i'm sorry maybe i misunderstood your question that's exactly right and the growers went into this arrangement knowing that they were bringing over impoverished foreign workers  needed to be housed who needed to be fed and that you that was part of what happened had to happen and so someone had to be responsible for that on paper they said it was not us hands off but i as but but in fact that's what i'm saying outside put aside this royal city thing because that maybe that's slightly unique but other than that i don't think we have anything that suggests that the growers were directing global as to where to house these folks you know what kinds of of housing they were to be provided how much food they were to get i don't i don't see one scrap of evidence that suggests that the growers had anything to do with that so that's why i was asking is your theory just that well you know if we were outside the age to a program you know obviously they wouldn't be joining players but because that's a condition of the admission of the workers that suddenly they're just not able to you know contract in the way that they did with global and say hey none of that's our responsibility we're just going to you know keep blinders on and focus on the or stop well yes that's that's highly relevant certainly we're not suing for violations of the h two a program or suing for violations of title seven but you know again as part of the totality of factors of the relationship that the court should be looking at to assess join employer liability that is part of the economic reality factor and to that extent the fact that these claimants were so completely economically dependent that you know the question of joint control is there sufficient join control to hold them liable it doesn't have to be a lot of joint control it just means is there sufficient and the economic reality here because of the h two a program means that perhaps you need at a lower level than what you would need in another context can i ask another basic factual question or to educate me on this in terms of how the edge to edge to a program works do for those workers who came from thailand were they allowed to work on other farms other than these two no it is farm specific so  so global is their employer and that's how that's the range when they come over but they as part of their admission they're only allowed to work on either can't remember the names of these two things but the two different forms it's the only those are the only two forms they can work on that tied to their application on the farms have to certify that they were unable to get sufficient domestic labor in order to bring over these claimants i say ok so why i thought that's helpful but i thought there were references in the record to global saying i don't know what but there is evidence in the record that they said that there's also evidence in the record that they simply threatened to deport them if they weren't happy with them but some of these you know they were tied to either green acre to valley fruit and global was shuffling that them back and forth between the two global i had an enormous number of different kinds of violations and this may very well have been one of them