Arias v. Raimondo

• Decision Date: 22 June 2017
• Docket Number: No. 15-16120,15-16120
• Citation: 860 F.3d 1185
• Parties: Jose Arnulfo ARIAS, Plaintiff–Appellant, v. Anthony RAIMONDO, Defendant–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

860 F.3d 1185

Jose Arnulfo ARIAS, Plaintiff–Appellant,

v.Anthony RAIMONDO, Defendant–Appellee.

No. 15-16120

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 14, 2017 San Francisco, California

Filed June 22, 2017

Christopher Ho (argued) and Stacy Villalobos, The Legal Aid Society—Employment Law Center, San Francisco, California; Esmeralda Zendejas and Blanca A. Bañuelos, California Rural Legal Assistance, Inc., Stockton, California; Michael L. Meuter, California Rural Legal Assistance, Inc., Salinas, California; for Plaintiff-Appellant. Scott P. Dixler (argued) and Peder K. Batalden, Horvitz & Levy LLP, Burbank, California, for Defendant-Appellee.

Nora A. Preciado and Joshua T. Stehlik, National Immigration Law Center, Los Angeles, California; Jessica Hahn, National Immigration Law Center, Washington, D.C.; for Amicus Curiae National Immigration Law Center, Asian Americans Advancing Justice—Asian Law Caucus, Asian Americans Advancing Justice—Los Angeles, Bet Tzedek Legal Services, Centro Legal de la Raza, Farmworker Justice, Jobs with Justice, National Employment Law Project, New Orleans Workers' Center for Racial Justice, UCLA Center for Labor Research and Education, United Food and Commercial Workers International Union, and Worksafe Inc.

Before: Stephen S. Trott, Kim McLane Wardlaw, and Ronald M. Gould, Circuit Judges.

OPINION

TROTT, Circuit Judge:

Can an employer's attorney be held liable for retaliating against his client's employee because the employee sued his client for violations of workplace laws? The district court's answer was no. We respectfully disagree.

We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291, and we reverse and remand.

IBackground

In 1995, plaintiff José Arnulfo Arias went to work as a milker for Angelo Dairy. Three Angelos owned and operated the dairy: Luis, Maria, and Joe ("Angelos"). When the Angelos hired Arias, they did not complete and file a Form I-9 ("I-9") regarding his employment eligibility in the United States.

An I-9 is a document required by U.S. Citizenship and Immigration Services ("USCIS"), a component of our Department of Homeland Security. USCIS explains the purpose of the I-9 and process as follows:

Form I-9 is used for verifying the identity and employment authorization of individuals hired for employment in the United States. All U.S. employers must ensure proper completion of Form I-9 for each individual they hire for employment in the United States. This includes citizens and noncitizens.... Employers must retain Form I-9 for a designated period and make it available for inspection by authorized government officers.

U.S. Citizenship and Immigration Services, I-9, Employment Eligibility Verification , https://www.uscis.gov/i-9 (last updated Jan. 23, 2017).

Instead of complying with federal law, the Angelos wielded it as a weapon to confine Arias in their employ. When Arias informed Luis Angelo in 1997 that he had been offered a position with another dairy, Luis "responded that if [Arias] left to work at the other dairy, [Luis] would report the other dairy to federal immigration authorities as an employer of undocumented workers," which Arias was. This threat caused Arias to forego his other employment opportunity and to remain with the Angelos.

In 2006, Arias sued Angelo Dairy in California state court. Arias alleged causes of action on behalf of himself and other employees under California's Unfair Competition Law ("UCL"), CAL. BUS. & PROF. CODE § 17200 et seq. , for a variety of workplace violations, including failure to provide overtime pay and rest and meal periods. Later, he added a cause of action under California's Private Attorneys General Act of 2004 ("PAGA"), CAL. LAB. CODE § 2698 et seq. The Superior Court struck his representative claims in the UCL and PAGA causes of action. The Court of Appeal later issued a peremptory writ of mandate directing the Superior Court to vacate its order as to the PAGA cause of action. See Arias v. Superior Court , 153 Cal.App.4th 777, 63 Cal.Rptr.3d 272 (2007), aff'd , 46 Cal.4th 969, 95 Cal.Rptr.3d 588, 209 P.3d 923 (2009). The Superior Court then set a trial date of August 15, 2011.

IIThe Plot Thickens

On June 1, 2011, ten weeks before the state court trial, the Angelos' attorney, Anthony Raimondo, set in motion an underhanded plan to derail Arias's lawsuit. Raimondo's plan involved enlisting the services of U.S. Immigration and Customs Enforcement ("ICE") to take Arias into custody at a scheduled deposition and then to remove him from the United States. A second part of Raimondo's plan was to block Arias's California Rural Legal Assistance attorney from representing him. This double barrel plan was captured in email messages back and forth between Raimondo, Joe Angelo, and ICE's forensic auditor Kulwinder Brar. Arias quoted these revealing exchanges in his current complaint:

23. On June 1, 2011, Defendant RAIMONDO emailed Immigration and Custom Enforcement ("ICE") Forensic Auditor Kulwinder Brar, an employee of the U.S. Department of Homeland Security. In this email, Defendant RAIMONDO supplied Brar with information about Plaintiff's identity, and asked Brar to "[l]et me know if there is anything that you can do...."

24. On the same day, June 1, 2011, all parties to the 2006 Lawsuit attended a mediation in Stockton, California. The mediation was unsuccessful.

25. On June 14, 2011, Defendant RAIMONDO sent Joe Angelo a text message stating, "Immigration is trying to verify Arias [sic] status—let me know if you have any more info on him." Joe Angelo responded by providing Defendant RAIMONDO with Plaintiff's driver's license number....

26. On June 15, 2011, Defendant RAIMONDO emailed to ICE Auditor Brar the information Joe Angelo had provided. In doing so, Defendant RAIMONDO stated, "I hope this helps. [Plaintiff] will be attending a deposition next week. If there is an interest in apprehending him, please let me know so that we can make the necessary arrangements...."

27. On June 16, 2011, ICE Auditor Brar responded to Defendant RAIMONDO's email of June 1, 2011, stating that "[b]ased on our records he [Plaintiff] has no legal status. We will be forwarding this information to ERO [Enforcement and Removal Operations] and your contact information if they want to proceed with this matter...."

28. Defendant RAIMONDO replied to ICE Auditor Brar, asking her to "[p]lease let ERO know that they can expect our full cooperation and assistance", and to "let me know if there is anything I can do to be of assistance to you." Brar responded, "No problem and we will get your contact information as soon as contact is made."

Arias's current complaint also alleged the impact of Raimondo's actions on him and his case, and Raimondo's pattern and practice of similar conduct in other cases:

29. Plaintiff became aware on June 22, 2011 that Defendant had provided information concerning Plaintiff to the immigration authorities. Fearing that he would be deported and separated from his family, Plaintiff suffered anxiety, mental anguish, and other emotional distress from Defendant's retaliatory action.

30. On July 11, 2011, one month before trial, the parties participated in a settlement conference. In lieu of proceeding to trial on the wage and hour claims comprised within the 2006 Lawsuit, Plaintiff entered into a settlement and release of those claims, due in substantial part to the threat of deportation created by Defendant's communications with ICE.

31. On information and belief, Defendant RAIMONDO's actions against Plaintiff are reflective of and consistent with his pattern and practice of retaliating against employees who assert their workplace rights. In fact, Defendant RAIMONDO has stated in a declaration filed in a court action that it is his practice to investigate the immigration status of plaintiffs who have brought legal claims against his clients....

32. On at least five additional occasions, and consistent with his pattern and practice, Defendant RAIMONDO has contacted ICE with respect to employees who have asserted their workplace rights against employers whom Defendant RAIMONDO has represented, and has offered his assistance to ICE in apprehending those employees....

33. On May 2, 2013, Defendant RAIMONDO confirmed the above pattern and practice in an email he sent to Thomas Hester of the Office of Inspector General at the Legal Services Corporation, in which he stated, "The time when I have had litigants deported, I have always simply taken action rather than make any threats. The attorneys find out when their clients are already gone. "

IIIArias's Complaint

On May 8, 2013, Arias filed this lawsuit against Angelo Dairy, the Angelos, and Raimondo in the Eastern District of California. Arias alleged that the defendants violated section 215(a)(3) of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq.¹

Arias's theory of his case is that Raimondo, acting as the Angelos' agent, retaliated against him in violation of section 215(a)(3) for filing his original case against Raimondo's clients in state court. Raimondo's sole legal defense is that because he was never Arias's actual employer, he cannot be held liable under the FLSA for retaliation against someone who was never his employee.

Angelo Dairy and its owners settled their part of this case at the early stages of its existence.

IV

A.The District Court's Dismissal

Notwithstanding section 215(a)(3)'s reference to "any person," section 203(a)' s inclusion of a legal representative as a "person," and section 203(d)'s plain language defining "employer," the district court granted Raimondo's motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). The court did so without the benefit of oral argument, concluding that because Arias "ha[d] not alleged that [Raimondo] exercised any control over [his] employment relationship," Raimondo as a matter of law could not be Arias's employer.

B.Standard of Review

We review de novo a Rule 12(b)(6) dismissal for...