In a Day's Work Page 6

  In the Sunnyside flats and the surrounding swath of Indian reservation, there is a pocket where the American Dream dims. It is where little-to-no education meets little-to-no English meets a lack of immigration papers. Houses are packed with extended family, friends, or anyone who can help chip in for rent. Here immigrants and their kids go to work before the sun rises to pick or pack apples or tend to the orchards. In its monotonous physical routine, poverty begins to feel inevitable.

  It’s an existence that can be hard to fathom from the gated houses high on the hills of Cowiche or further out, in the picturesque towns of Ellensworth and Richland, where longtime locals with jobs at universities or research labs can afford houses in tidy subdivisions. Juan Marín and his accusers came from the Sunnyside flats, but it was the other half of Eastern Washington, that of idyllic values and American-born idealism, that would serve as their judge and jury.

  The trial of U.S. Equal Employment Opportunity Commission v. Evans Fruit began on March 19, 2013, in the federal courthouse in downtown Yakima. The courtroom held about thirty people, and during eleven days of trial, Bill and Jeannette Evans drove downtown to take front-row seats at the proceeding after early-morning meetings with their staff.

  Federal judge Lonny Suko, calm and serious, presided. The jury box had been filled with seven men and two women. They were an all-white and largely Christian group, many of whom said during the selection process that their favorite book was the Bible. One woman said she recognized the judge from church.

  Over the course of nearly three weeks, the jury heard from a succession of Evans Fruit employees who were sworn in before taking a seat at the witness stand. Although Ángela Mendoza and her daughter, Jacqueline Abundez, had been the ones to spark the lawsuit, both women were dropped from the case because Abundez was murdered in 2008, and Mendoza’s statements about her daughter’s sexual harassment claims were now viewed as hearsay. Even so, fourteen additional women testified that Juan Marín or an Evans Fruit crew leader had sexually harassed them. Nearly a half-dozen men also testified that they had observed sexual harassment at the orchard.

  When it came to Marín specifically, some of the claimants said that the foreman had propositioned, groped, or sexually assaulted them in the orchard. In his truck, he grabbed their breasts and crotches, tore off their shirts and pulled down their pants, some of them said.

  The testimony began to take on a predictable rhythm. The women’s lawyers asked them to describe the things that Marín or crew leaders had done to make them feel uncomfortable at work. Some of the workers were asked to stand and show the jury exactly where Juan Marín had touched them. The women explained that on top of the shame, embarrassment, and fear of not being believed, they had never reported their problems to the company because they didn’t know that they could or because their English was poor. Most of them spoke through an interpreter at trial.

  The women were then cross-examined by attorneys representing Evans Fruit, whose mission was to show that the company wasn’t liable for any sexual harassment that had happened in the orchards because its managers didn’t initially know about it, as the women had never complained to them. The company’s lawyers also sought to show that neither Juan Marín nor any of the accused crew leaders had the authority to hire or fire seasonal workers, a situation which, if proven, would make it harder to connect the men’s behavior with the company’s legal liability.

  In the end, the company’s most effective legal strategy was casting doubt on the women’s credibility altogether. Lawyers for the company pointed out inconsistencies related to some of the claimants’ financial failings and legal missteps. One worker had made a misstatement on a bankruptcy filing. Another had received unemployment checks when she was supposedly working at Evans Fruit. Even some of the government’s strongest witnesses were toppled by this type of questioning from Evans Fruit’s lawyers.

  A case in point was the testimony of Norma Valdez, the woman who had taken to hiding from Marín in the orchard. Petite with blond highlights, Valdez carried herself with an air of maturity and confidence. In the courtroom, she initially won over the jury when one of the government lawyers asked her how she was doing as she took the witness stand and she replied, “Well, nervous but all right.” The jurors smiled sympathetically.

  Valdez told the jury that she had taken seasonal work at Evans Fruit from 2004 to 2007. She said that she didn’t know who Bill and Jeannette Evans were, but she had met their son Tim, who sometimes drove through the orchard in his truck. Since Tim owned his own orchard, she had once asked him for work. The jury also learned that she had been divorced and that her current partner, Gerardo Silva, is someone she met while working at Evans Fruit.

  When an attorney for the U.S. Equal Employment Opportunity Commission asked Valdez if orchard foreman Juan Marín had ever done anything that had made her feel uncomfortable, she replied, “Well, there were many.”

  “The first time he attacked me, that happened in Mattawa, at the Mattawa ranch,” she testified. “I was working, and he came to—and, you know, I didn’t know he was like that. And he came to—he said he was going to take me to work in a different area, and he said, ‘Get in my truck.’”

  They drove for some time and Valdez began to get scared, and she asked Marín where they were going. “He said, ‘Don’t be afraid, don’t be afraid,’” Valdez said. “And he continued driving and he took me to the middle of an orchard. He drove his truck in between the rows of apple trees, and he took me far into the field.”

  He parked the truck and “all of a sudden he was on top of me. He was on top of me, and he was hugging me, touching me, and he was trying to kiss me. And I could feel his saliva on my neck and on my face. And I would push him and push him away so he would let go of me, but he wouldn’t,” Valdez said. “And I couldn’t, you know. I want to get him off me, but I couldn’t and . . .”

  Where were his hands? “They were all over my body. He was touching my breasts, he was touching me between my legs, he was hugging me until I was finally able to get him off me,” she said. “And I opened the door, and I took off running. I took off running and I didn’t know where I was at, and he went to catch me. He caught up to me, and he grabbed my arm and he turned me around, and I said, ‘If that’s why you hired me I’m just going home,’ that I was not going to be there if he was going to do that to me.”

  On the witness stand, Valdez was getting agitated and tearful. “I was shocked,” she said. “I didn’t know why that had happened. I couldn’t understand it.”

  She told the jury that as time passed, she began to recognize the sound of Marín’s truck, and whenever she heard it, she hid from him. She described two more groping incidents in detail and said there had been many more. Though they upset her, she had kept it all to herself. “I was very embarrassed,” she said. “It was just embarrassing to tell someone what had happened to me.”

  Valdez’s testimony was convincing, but during her cross-examination, Evans Fruit attorney Carolyn Cairns began with a line of questioning meant to generate doubt about Valdez’s veracity: If they had really happened, why didn’t she bother to complain?

  Cairns insinuated that Valdez should have known how to make a complaint to the company because the farmworker had signed a document when she took the job that said she had received a copy of the company’s workplace policies, which said specifically that the Evanses welcomed hearing concerns directly from their workers. The lawyer then asked Valdez why she never complained to Tim Evans, since she had once called him to ask him for a job. Valdez said that she did not think Tim would believe her and that she had been embarrassed. In fact, she hadn’t told anyone about what Marín had done to at first, not even her partner, Gerardo Silva.

  Cairns saw an opening to further discredit Valdez. She asked her when she had begun her “affair” with Silva. One of the government attorneys objected to the question because it was argumentative and harassing, and Cairns pointed out that Valdez had begun her relationship wit
h Silva while she was still married. The judge asked Cairns to rephrase the question, and the lawyer eventually asked if Valdez had previously said that Marín stopped harassing her after she began dating Silva. Valdez replied that Marín had continued to touch her in ways that she did not like for two more years.

  Cairns then returned to the question of why Valdez had never reported the assaults. Why hadn’t Valdez gone to the police? Valdez said she didn’t know she could. “You knew how to report domestic violence, though, didn’t you?” Cairns asked pointedly. Valdez agreed that she had once gone to the police about her ex-husband.

  Then Cairns pulled out her trump card. Cairns showed the jury a court document that said that Valdez had pled guilty to welfare fraud in 2002. When asked repeatedly about the particulars, Valdez said she couldn’t remember much about what had happened. As persuasive as she had been moments before, Valdez’s credibility with the jury was visibly shot.

  Although there was a reasonable explanation for the welfare-fraud conviction, Valdez’s lawyers weren’t able to help her recover. Valdez was only able to tell the jury that she and her ex-husband had filed for welfare when they lived in California because her husband had hurt his hands and couldn’t work for a time. Her attorney’s effort to elicit more detail was shut down by objections from Evans Fruit’s lawyers.

  If Valdez had been given an opportunity to more fully explain, the jury would have learned that while she was living in Southern California, Valdez and her then husband had enrolled in welfare after he was injured on the job. Problems arose when the couple agreed to help Valdez’s father, who had limited reading and writing skills, buy a car. Her father used the car and made the monthly payments to the dealership, but by signing the title to a second car and not notifying the state government about it, the couple had broken state welfare laws. According to the government complaint against them, the couple had committed a felony because they had “falsely reported that they only owned one car.”

  At the time, Valdez’s husband told government investigators that he had read and signed the forms and “I just have Norma sign them.” The couple didn’t deny that they held the title for a second car so they pleaded guilty to a misdemeanor. The judge fined them $100, and they each spent one day in the county jail.

  There was no way to predict that the incident would be Valdez’s undoing in a sexual harassment lawsuit more than a decade later.

  Besides raising questions about the women’s character, the attorneys for Evans Fruit were also successful at emphasizing the inconsistencies between what the women had said when they had provided sworn pretrial testimony during their depositions and what they said on the witness stand at trial.

  It’s a common tactic used in civil cases to poke holes in a witness’s credibility. Seasoned court watchers know that inconsistencies on the witness stand can happen for a variety of reasons. Sometimes memories falter. In cases involving traumatic events, brain science tells us that victims tend to have a hard time remembering some details or putting them in proper sequence. The way questions are asked—or not asked at all—during the deposition can set the stage for discrepancies later on. A final explanation, which the attorneys for Evans Fruit relied on, was that the witnesses were embellishing or lying.

  During trial, several Evans Fruit workers testified about incidents that were never mentioned during their depositions or that had not been included in their initial complaint to the government. Some of these additions were much more serious than what had been discussed with the company, and they surfaced for the first time at trial. The women later said that they didn’t mention some of these incidents earlier because they hadn’t been asked about them, but at trial, the company’s lawyers argued that the women were fabricating their stories, motivated by the possibility of winning money.

  As an Evans Fruit attorney put it at the end of the trial, “The claimants need money and you may consider that that is a powerful incentive to invent or exaggerate their stories. At some level I understand that. These folks are poor. For the most part, they’re uneducated, and their career paths, frankly, are not bright. This is their chance to get some extra money, and they’re grabbing the brass ring. However sympathetic their financial conditions may be, it is simply not fair and it’s not right that they try to get money from Mr. and Mrs. Evans that they do not legally deserve.”

  The testimony of a worker named Esther Abarca, in particular, illustrated how the women’s more detailed and dramatic stories revealed at trial were framed as distortions of the truth. Abarca’s testimony was taken on the sixth day of trial, after three women had testified that Juan Marín had sexually harassed them.

  Abarca lives in Chicago, and her testimony was given through a live video feed. She wore her hair pulled back and carried a small white handbag. During her testimony, she frequently looked down or cradled her head in her hand or fiddled nervously with the strap of her purse. The camera was trained on her from above, an unflattering angle.

  A government lawyer began by asking her about her experience with Juan Marín, and like Norma Valdez, she described an attack in Marín’s truck: “I was working like an area where I was topping off, or making bins even, and then Mr. Marín said he was going to move me to another block, to another area,” she said. “And he told me to get in his car because I was far—that was far away from there. And at the time I did not have a car of my own. So then I got in, and he took me to a place, he took me to someplace, but at the time I didn’t know my way around the ranch very well because I hadn’t been there for a long time. I did not know the ranch very well. Then once I was in the car, he was like trying to grab me and I kept telling him that I—to stop, that I didn’t like that.”

  The orchard foreman “came on top of me and he wouldn’t let me move, and he was like kissing me and touching me all over,” she said. Marín, she said, used the isolation to his advantage:

  It was a desolate place. It was there—I was there all alone and, like I said before, I don’t know my way around the ranch . . . I wanted to get out and when he got on top of me, he laid me down, on my back in the car. . . . He wanted to remove my clothing. He was able to unbutton my pants, but I kept pushing him away. I told him to leave me alone, that I was with a partner and that I didn’t want any problems. . . . He wouldn’t let go of me. He wouldn’t let go of me, and he wanted to kiss me forcefully. . . . He was touching me all over the place, like this, like from here all the way down. He was grabbing me and touching me all over the place, and he wanted to remove my clothing. He was able to unbutton my pants, but he was only able to pull them down half—halfway down. . . . I kept telling him to leave me alone, but he wouldn’t leave me alone. And I kept screaming, but there was nobody there to help because—there was nobody there at that place. . . . After that I started crying out loud and I started screaming to please leave me alone. And after so much crying and screaming he said, “That’s it, I’m not going to do anything to you anymore. Get back in the car, I’m going to take you back.” . . . Because I was screaming so much and kicking so much and pushing him away so much, he said that he was going to leave me alone finally and that he was going to take me back.

  On the video screen, the jury in Yakima watched as Abarca wiped away tears. She said that Marín told her not to tell anyone what had happened and he would give her $3,000 so she could buy a car. “I told him that was the very reason I had come here to work, that I did not need him to give me any money at all,” she said.

  What had happened in the truck was not the only time Marín had harassed her, Abarca said. At the time, she was living in one of Marín’s apartment buildings, and the foreman had assigned her to clean his properties during Evans Fruit work hours. He insisted on driving her there and on the way, she says there was a second attack in Marín’s truck. At the rental house she was to clean, she says he assaulted her again. “He cornered me and pinned me against the wall and he tried to pull my pants down again. . . . I had to tell him to leave me alone, to stop, that I di
dn’t want anything to do with him,” she said.

  She wiped tears from her cheek. She said she did not report these attacks because “I was afraid that I would be fired.”

  Abarca’s testimony had been riveting but as with Norma Valdez, the cross-examination by Evans Fruit attorneys would be her downfall.

  Brendan Monahan, an attorney for the company, began by pointing out that in a previous court hearing, Abarca had lied and said that she had not been cleaning Marín’s apartments on company time. And, he noted, in her deposition, Abarca had only mentioned that Marín had blown her kisses, called her beautiful and attacked her once in his truck—and now she wanted the jury to believe that there were multiple attacks?

  “Yes,” she said, “but it is because I was ashamed to say everything and I’m still ashamed now,” she said.

  Monahan continued to underscore the inconsistencies between Abarca’s deposition and what she had told the jury. “And so the story that you’re telling the jury today about the apartment and the house and the second incident in the truck, those are new stories, aren’t they?” he asked.

  On the screen, the jury could see that Abarca was crying. But she was still defiant. “Those are not stories,” she retorted. “That’s the truth and there is God—if you don’t want justice, there’s God who knows everything I’ve been going through.”

  Monahan, normally unflappable, appeared startled.

  After a pause, he made a motion to strike Abarca’s statement. The judge agreed, so Abarca’s outburst could not be considered as evidence by the jury.

  On the eighth day of trial, Juan Marín arrived to testify, dressed in a gray button-down shirt and jeans. His hair, normally kept under control by a baseball cap, had been carefully brushed back. Though he prided himself on being bilingual, he testified in Spanish through an interpreter.