Baiju v. U.S. Dep't of Labor, 12-cv-5610 (KAM)

CourtUnited States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
Writing for the CourtKIYO A. MATSUMOTO
PartiesBISHNU S. BAIJU, Petitioner, v. UNITED STATES DEPARTMENT OF LABOR, and FIFTH AVENUE COMMITTEE, INC., Respondents.
Decision Date31 January 2014
Docket Number12-cv-5610 (KAM)

BISHNU S. BAIJU, Petitioner,
v.
UNITED STATES DEPARTMENT OF LABOR, and FIFTH AVENUE COMMITTEE, INC., Respondents.

12-cv-5610 (KAM)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

Dated: January 31, 2014


NOT FOR PUBLICATION
MEMORANDUM AND ORDER

MATSUMOTO, United States District Judge:

Pro se petitioner Bishnu S. Baiju ("petitioner" or "Baiju") seeks judicial review and reversal of the final Decision and Order of the Department of Labor Administrative Review Board ("ARB") dated March 30, 2012, and the ARB's denial of reconsideration dated May 31, 2012.1 This court has judicial review of final agency actions pursuant to the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq. See 5 U.S.C. §§ 702, 704.

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Pending before the court are respondent Department of Labor's motion for summary judgment to affirm the ARB's final decision and petitioner's motion seeking certification of Form I-918 for his application for a U-Visa. Additionally, respondent Fifth Avenue Committee, Inc. ("FAC") moves for summary judgment to affirm the ARB decision and petitioner moves for summary judgment to reverse the ARB decision.2

For the reasons set forth below, the court: (1) grants summary judgment as to respondents Department of Labor and FAC; (2) denies petitioner's summary judgment motion; (3) denies

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petitioner's petition for review and affirms the final decision of the ARB; and (4) denies petitioner's motion for certification for his U-Visa application.

BACKGROUND

I. Facts

The following facts are taken from the Department of Labor's Local Civil Rule 56.1 Statement ("Resp't 56.1 Stmt.") and the administrative record ("R.").3

A. Petitioner's H-1B Visa and Employment

Petitioner Baiju was employed as a staff accountant by respondent Fifth Avenue Committee, Inc. ("FAC") from November 8, 2005 to February 7, 2008. (ECF No. 66, Ex. 1, Resp't 56.1 Stmt. dated 6/20/13 ¶ 1.) FAC is a 501(c)(3) corporation, and Michelle de la Uz ("de la Uz") serves as its executive director. (Id.) Brooklyn Workforce Innovations ("BWI"), also known as

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Leap, Inc., is a separate 501(c)(3) entity that is a wholly controlled affiliate of FAC. (ECF No. 68, Resp't Opp. Stmt. Dated 7/25/12 ¶ 1.) In his role as staff accountant at FAC, petitioner's responsibilities included performing work for FAC and BWI. (Id. ¶ 15.) Although petitioner was originally hired on a temporary basis to perform the duties of the former staff accountant who had been called to active duty overseas, FAC sought to retain petitioner on a full-time basis after the former employee returned to the United States and resigned her position. (R. at 5, 174-75.)

In connection with its offer of full-time employment, in September 2006, FAC filed a Labor Condition Application ("LCA") for an H-1B temporary work visa on behalf of petitioner to cover the period from September 25, 2006 to September 24, 2009. (Resp't 56.1 Stmt. ¶ 1.) The H-1B visa program allows employers to employ nonimmigrants in "specialty occupations" on a temporary basis. See 8 U.S.C. § 1101(a)(15)(H)(i)(b). Pursuant to 20 C.F.R. § 655.731(a), an employer seeking to employ an H-1B nonimmigrant must state that it will pay the H-1B nonimmigrant the required wage rate under the regulations, which is defined as "the greater of the actual wage rate . . . or the prevailing wage." 20 C.F.R. § 655.731(a). The actual wage is the wage rate paid by the employer to all other individuals with similar experience and qualifications for the particular

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employment position. 20 C.F.R. § 655.731(a)(1). The prevailing wage rate is determined by one of three sources: an Office of Foreign Labor Certification National Processing Center determination, an independent authoritative source, or "[a]nother legitimate source of wage information." 20 C.F.R. § 655.731(a)(2)(ii).4

To obtain the prevailing wage rate for Baiju's H-1B visa application, FAC relied on its own survey, which included looking at salary surveys and other documents from peer institutions as well as the salaries of FAC employees, and determined that the prevailing wage for petitioner's position was $45,000 per year. (Resp't 56.1 Stmt. ¶ 4.) Petitioner argues that FAC never used a survey to determine the prevailing H-1B visa wage rate. (ECF No. 67, Ex. 1, Pet'r 56.1 Stmt. dated 7/5/13 ¶ 4.)

Petitioner earned $45,000 in 2006 when he first began working under the H-1B visa, and received cost of living increases in 2006 and 2007. (R. at 177-78.) By the time petitioner's employment with FAC ended in early 2008, he was earning $50,500 per year. (Resp't 56.1 Stmt. ¶ 4.)

B. Permanent Labor Certification Application

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In the fall of 2006, FAC applied to the Department of Labor ("Department") for a permanent labor certification on behalf of Baiju that, if granted, would allow FAC to apply for permanent residence status on Baiju's behalf. (Resp't 56.1 Stmt. ¶ 6); 20 C.F.R. § 656 et seq. As part of the permanent labor certification process, the sponsoring employer must certify various conditions of employment on the Application for Permanent Employment Certification (ETA Form 9089), including that the "offered wage equals or exceeds the prevailing wage determined pursuant to [20 C.F.R.] § 656.40," and that the offered wage "is applicable at the time the alien begins work or from the time the alien is admitted to take up the certified employment." 20 C.F.R. §§ 656.10(c)(1), 656.17. The employer seeking permanent labor certification for a nonimmigrant employee must request a prevailing wage determination from the state workforce agency ("SWA"); it cannot rely on any other sources of wage information. See 20 C.F.R. § 656.40.

Accordingly, in connection with FAC's application for permanent labor certification for Baiju, FAC requested a prevailing wage determination from the New York SWA, and on November 9, 2006, the SWA provided a wage determination for petitioner of $34.89 per hour, or $72,571 per year.5 (Resp't

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56.1 Stmt. ¶ 8.) FAC requested a second wage determination, and on January 11, 2007, the SWA provided the same wage rate. (Id.) On November 8, 2007, FAC was advised by Satish Bhatia, the immigration attorney who had assisted FAC with petitioner's H-1B visa application process, that FAC was not required to pay the SWA-determined wage rate until the permanent labor certification application was approved. (Id. ¶ 9.) FAC provided petitioner with a copy of the correspondence with Bhatia and a copy of the wage determination from the SWA. (Id. ¶ 10.) The Department of Labor never granted permanent employment certification for petitioner during his time of employment with FAC. (Id. ¶ 11.)

C. Petitioner's Complaints Regarding Wage Rate

Despite not having been granted permanent employment certification, petitioner repeatedly insisted that he was entitled to the higher wage rate set by the SWA, instead of the wage he was being paid under his H-1B visa. (Id. ¶¶ 11-12; R. at 202-03, 275-77.) According to de la Uz, petitioner was "disturbing the work of other people, he was raising his voice, [and] he was stopping a board member in the hallway" when the board member came by the FAC offices. (R. at 202.) Other FAC staff members told de la Uz about petitioner's "disruptive" and "aggressive" behavior. (R. at 203.) Petitioner himself acknowledged that "[t]ime and again, I . . . talked to the

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finance director and also to [de la Uz] and also to other staff" regarding his salary. (R. at. 160.)

On February 6, 2008, petitioner sent an email to de la Uz, asking, "When do you start paying me DOL DETERMINED RATE OF PAY?"6 (R. at 275.) In her response, de la Uz explained that the SWA-determined wage rate would only apply once the permanent employment certification was granted. (R. at 277.) In addition, de la Uz advised petitioner that sending emails demanding a pay raise was inappropriate, and that he should schedule a meeting with his supervisor to professionally discuss any reasons that he believed justified a raise.7 (Id.) De la Uz also noted that FAC "does not currently have a staff accountant position that pays $63k on an annual basis nor do I believe that we will . . . in the near future. If you believe you should be paid that amount, and that level of pay is critical to you, you should seek employment that pays that amount outside of FAC."8 (Id.)

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The next day, on February 7, 2008, de la Uz met with Baiju to discuss his refusal to perform his work duties and his wage demands. (R. at 203.) During the meeting, de la Uz showed petitioner a copy of his job description and asked him if he was unwilling to perform the described duties that he previously had agreed to perform. (Id.) Petitioner replied that he was not willing to perform them. (R. at 204.) When de la Uz told petitioner that his unwillingness to perform his job meant that FAC would have to terminate his employment, petitioner replied, "'You don't terminate me. I terminate you.'" (R. at 203-04.)

D. Termination from Employment

FAC terminated petitioner's employment on February 7, 2008, and in a letter dated February 12, 2008, FAC informed petitioner that his employment was terminated for...

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