Zamora v. Elite Logistics, Inc.
| Decision Date | 26 February 2007 |
| Docket Number | No. 04-3205.,04-3205. |
| Citation | 478 F.3d 1160 |
| Court | U.S. Court of Appeals — Tenth Circuit |
| Parties | Ramon ZAMORA, Plaintiff-Appellant, v. ELITE LOGISTICS, INC., Defendant-Appellee. Kansas Hispanic & Latino American Affairs Commission; Hispanic Ministry for The Archdiocese of Kansas City, Kansas; El Centro, Inc.; Apoyo Trabajador de Lawrence/Migrant Worker Solidarity of Lawrence; Harvest America Corporation; National Immigration Law Center, El Centro, Inc.; Interfaith Worker Justice; International Brotherhood of Teamsters; Kansas City Worker Justice Project; Laborers International Union of North America; National Council of La Raza; Service Employees International Union; United Food and Commercial Worker's Union, Amici Curiae. |
Before TACHA, Chief Judge, HOLLOWAY, EBEL, KELLY, HENRY, BRISCOE, LUCERO, MURPHY, HARTZ, O'BRIEN, McCONNELL, TYMKOVICH, GORSUCH, and HOLMES, Circuit Judges.
Plaintiff-Appellant Ramon Zamora sued his former employer, Defendant-Appellee Elite Logistics, Incorporated ("Elite"), under Title VII of the Civil Rights Act, alleging Elite discriminated against Zamora because of his race and national origin 1) by suspending Zamora from work until he presented documentation establishing his right to work in the United States; and 2) then, after reinstating Zamora, firing him after he requested an apology. The district court granted Elite summary judgment on both claims. See Zamora v. Elite Logistics, Inc., 316 F.Supp.2d 1107 (D.Kan.2004). A divided panel of this court reversed that decision. See Zamora v. Elite Logistics, Inc., 449 F.3d 1106 (10th Cir.2006). After rehearing this appeal en banc, this court VACATES the panel's decision. See 10th Cir. R. 35.6. As to Zamora's first claim involving Zamora's suspension, because the en banc court is evenly divided, we simply AFFIRM the district court's decision granting Elite summary judgment.1 As to the second claim involving Zamora's termination, a majority of this court AFFIRMS summary judgment in Elite's favor.2
Viewing the evidence in the light most favorable to Zamora, see Metzler v. Fed. Home Loan Bank, 464 F.3d 1164, 1166 n. 1 (10th Cir.2006), the evidence in the record established the following: Elite operates a grocery warehouse in Kansas City, Kansas. In June 2000, Elite needed to hire an additional 300 workers in just a few weeks' time. In doing so, Elite failed to verify that all of its new employees were authorized to work in the United States.
A year later, in August 2001, Elite hired Zamora. At that time, Zamora was a Mexican citizen who had been a permanent legal resident of the United States since 1987. As part of the hiring process and in compliance with the Immigration Reform and Control Act of 1986 ("IRCA"), Zamora showed Elite his social security card, which he had had since 1980 or 1981, and his alien registration card. Zamora also filled out an I-9 form truthfully indicating that he was a Mexican citizen and a lawful permanent resident of the United States.
Four months after hiring Zamora, in December 2001, Elite received a tip that the Immigration and Naturalization Service (INS)3 was going to investigate warehouses in the area. Elite was particularly concerned about such an investigation in light of its earlier hiring practices in June 2000. Elite, therefore, hired two independent contractors to check the social security numbers of all 650 Elite employees. This investigation indicated that someone other than Zamora had been using the same social security number that he was using.4 The investigation turned up similar problems with thirty-five other employees' social security numbers.
On May 10, 2002, therefore, Elite's human resources manager, Larry Tucker, met specifically with Zamora and gave him an "Important Memorandum," written in Spanish and English, giving him ten days to produce adequate documentation of his right to work in the United States. Tucker followed this same procedure with the other thirty-five employees whose social security numbers raised concerns.5 The memorandum Tucker gave Zamora and the other affected workers read:
It is required by federal law that all employees produce documents, which establish their identity and/or employment eligibility to legally work in the United States when they are hired. This eligibility can be established with a U.S. Passport, a Certificate of Citizenship or Naturalization; or with a combination of other documents, such as a state's driver's license, state or federal ID card, U.S. Social Security card and/or a certified copy of a birth certificate, issued by a state of the United States.
It has come to our attention that the documents you provided us previously are questionable. Therefore, we are asking that you obtain proper documentation, or you may not be permitted to continue working here. Please bring proper evidence of your identity and employment eligibility no later than 5:00 p.m. on Monday, May 20, 2002, to the Department of Human Resources, or you may be terminated.
Thank you.
At the bottom of this memorandum there was a place where Zamora indicated that
I understand and agree that until and if I provide documents, which establish my identity and/or employment eligibility to legally work in the United States, Elite Logistics may not be able to continue permitting me to work. I also understand and agree that I have until 5:00 p.m. on Monday, May 20, 2002, to produce this documentation.
Zamora signed and dated that section of the memorandum. Zamora testified in his deposition that he understood at that time that he needed to bring in a valid social security card and documents establishing that he had a right to work in the United States. Zamora continued working during this ten-day period.
Zamora did not present Elite with any of the requested documents by May 20, 2002. Therefore, Tucker again met with Zamora6 and, according to Zamora, Tucker told him that he could not "come to work anymore until you got a different Social Security number." Zamora left Tucker's office and returned that same day with a document from the Social Security Administration showing wage earnings for the years 1978-85 for an "R. Zamora" under Zamora's social security number.7 This document had been mailed to an address in Washington, which Zamora had scratched out and replaced with his then-current Missouri address. More problematic, however, was that the date of birth for R. Zamora on this earnings statement was different than the date of birth Ramon Zamora had given Elite at the time Elite hired him. After reviewing the earnings statement, Tucker became concerned that yet a third individual had been using Zamora's social security number. Therefore, Tucker informed Zamora that this earnings statement was not "acceptable." Neither was an INS document Zamora showed Tucker that indicated that Zamora had previously applied to become a United States citizen.
At some point, Zamora also showed Tucker his naturalization certificate, indicating that Zamora had in fact become a naturalized citizen of the United States. But Tucker rejected that document as well.
The next day, May 23, Zamora brought Tucker a statement from the Social Security Administration indicating that the social security number Zamora had given Elite was in fact his number. Tucker then told Zamora that Tucker's assistant verified this document's authenticity and then called Zamora, asking him to return to work on May 29.
On May 29, however, instead of returning to work, Zamora went to Tucker's office and handed him a letter stating that Tucker refused to apologize. Tucker may then have told Zamora to get out of Tucker's office or the building, or to "[j]ust get the hell out." According to Zamora, Tucker also told him he was fired.
Zamora sued Elite, alleging the company violated Title VII8 by first suspending and then firing Zamora because of his race and national origin. See 42 U.S.C. § 2000e-2(a)(1). The district court granted Elite summary judgment on both claims. See Zamora, 316 F.Supp.2d at 1119, 1121. Zamora appealed.
This court reviews summary judgment decisions de novo, viewing the evidence in the light most favorable to the non-moving party; in this case, in Zamora's favor. See Metzler, 464 F.3d at 1166 n. 1. Summary judgment is appropriate only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R.Civ.P. 56(c).
In alleging that Elite discriminated against him on the basis of his race and national origin, Zamora challenges two...
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