Cazorla v. Koch Foods of Miss., L.L.C.

Citation838 F.3d 540
Decision Date27 September 2016
Docket NumberNo. 15-60562,15-60562
Parties Maria Cazorla, et al, Plaintiffs v. Koch Foods of Mississippi, L.L.C.; Jessie Ickom, Defendants Equal Employment Opportunity Commission, Plaintiff–Appellant Cross–Appellee v. Koch Foods of Mississippi, L.L.C., Defendant–Appellee Cross–Appellant
CourtU.S. Court of Appeals — Fifth Circuit

Anne Warren King, U.S. Equal Employment Opportunity Commission, Office of General Counsel/Appellate Services, Washington, DC, for PlaintiffAppellant Cross–Appellee.

Jerry Gonzalez, Law Office of Jerry Gonzalez, Murfreesboro, TN, Jerome William Wesevich, Texas RioGrande Legal Aid, Incorporated, El Paso, TX, Caitlin Irene Berberich, Texas RioGrande Legal Aid, Incorporated, Nashville, TN, for Intervenors.

Scott Walker Pedigo, Esq., Nakimuli Oni Davis–Primer, Adam Hayes Gates, Esq., Russell Wade Gray, Esq., Jennifer Graham Hall, Esq., Adria H. Jetton, Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., Jackson, MS, for DefendantAppellee Cross–Appellant.

Christopher Odell, Hannah DeMarco Sibiski, Arnold & Porter, L.L.P., Houston, TX, Amicus Curiae for LatinoJustice PRLDEF, National Immigrant Women's Advocacy Project, Incorporated, Legal Momentum.

Diana Orantes Embree, Esq., Nancy Kessler Platt, Deputy Associate General Counsel, Mischa Kristian Bauermeister, Esq., Barbara A. O'Neill, Esq., National Labor Relations Board, Contempt, Compliance, & Special Litigation Branch, Washington, DC, Amicus Curiae for National Labor Relations Board.

Before HIGGINBOTHAM, DENNIS, and CLEMENT, Circuit Judges.


Hispanic employees of Koch Foods (Koch), a poultry processor, allege harassment and abuse on the job. Koch claims they made up the allegations in order to get U visas, which are available to abuse victims who assist in government investigations. The company sought discovery of any information related to the employees' U visa applications. Plaintiffs objected, pointing out that the discovery would reveal to Koch the immigration status of any applicants and their families. The district court allowed the discovery in part, and both sides appealed. We VACATE the district court's certified discovery orders and REMAND.


Koch Foods (Koch) operates a large poultry processing plant in Morton, Mississippi. This suit arises from events that allegedly took place in the plant's debone department, where some eighty-five employees debone and package chicken thighs. The workers in this department, some of whom Koch apparently still employs, were overwhelmingly Hispanic. Most were illiterate and spoke little or no English, and many were undocumented aliens.1 Between 2004 and 2008, they allegedly suffered routine abuse at work. Koch supervisors allegedly groped female workers, and in some cases assaulted them more violently;2 offered female workers money or promotions for sex; made sexist and racist comments; punched, elbowed, and otherwise physically abused workers of both sexes; and demanded money from them in exchange for permission for bathroom breaks, sick leave, and transfers to other positions. Jessie Ickom (Ickom), a debone department supervisor, was allegedly responsible for much of the abuse, but other supervisors also allegedly participated. When workers complained or resisted, Koch managers allegedly ignored them, and some debone supervisors allegedly retaliated by docking their pay; demoting, reassigning, or firing them; and threatening to physically harm them or have them arrested or deported.

Koch calls these allegations “baffling,” “outrageous and extraordinary,” and “fantastic,” and claims that the “record show[s] that [they] were made to obtain immigration benefits under the U-visa program.” Since 2000, this program has offered temporary nonimmigrant status to victims of “substantial physical or mental abuse” resulting from certain offenses, including sexual assault, abusive sexual contact, extortion, and felonious assault.3 For a victim to receive a U visa, a law enforcement agency such as the Equal Employment Opportunity Commission (EEOC) must certify that he or she is aiding an investigation into the alleged offenses, and the U.S. Customs and Immigration Service (USCIS) must conduct its own de novo review of relevant evidence and confirm the victim's eligibility.4 U visas generally entitle their holders and their family members to four years of nonimmigrant status; holders may also apply for lawful permanent residence (a “green card”) after three years.5 Finally, aliens with “pending, bona fide” U visa applications may obtain work authorization.6

Koch claims that the claimants made up their accusations in hopes of securing U visas, and that the EEOC solicited and certified their false claims in order to build a high-profile, class-based discrimination suit against the company. This appeal concerns Koch's attempt to obtain concrete evidence of this malfeasance—namely, any and all records relating to the claimants' speculated U visa applications—through discovery.7

Litigation over the alleged wrongdoing at the Morton plant began in 2009, when ten workers filed Title VII discrimination charges with the EEOC alleging abuse by Ickom. In 2010 and 2011, several of the same workers sued Koch and Ickom in federal district court, alleging that Ickom's abuse and Koch's failure to remedy it violated federal and Mississippi law. The suit was stayed pending the resolution of their EEOC charges.

The EEOC investigated the workers' discrimination charges, found reasonable cause to believe that Title VII violations had occurred, and attempted conciliation with Koch. The conciliation process failed, and in June 2011, the EEOC filed its own suit against the company, alleging discrimination against the individuals that had filed charges as well as “an estimated class of 50 to 75 other Hispanic men and women” who had worked at the Morton plant. The district court consolidated the EEOC's suit with that of the individual employees. Several employees then intervened in the EEOC's suit.

In August 2012, Koch served the agency and the individual plaintiffs with discovery requests. All plaintiffs moved for a Rule 26 protective order insofar as Koch sought information relating to the individual employees' and class members' (collectively, the “individual claimants or claimants) immigration status and history. In response, Koch did not argue that the claimants might be lying in order to obtain U visas, instead citing other reasons why immigration status might be relevant to the case. A magistrate judge rejected Koch's arguments and granted the order in relevant part, opining that [a]ny relevance of immigration status is clearly outweighed by the in terror[e]m effect disclosure of this information would have in discouraging the individual plaintiffs and claimants from asserting their rights in this lawsuit.”

In April 2013, after several months of discovery, Koch served a second set of discovery requests specifically demanding information and records relating to claimants' efforts to obtain U visas. That discovery inevitably would have revealed the immigration status of any claimants who applied for U visas, as well as that of their families. The plaintiffs refused Koch's demands on several grounds, including the magistrate judge's protective order. The individual plaintiffs also rejected Koch's demand that they execute waivers allowing the Department of Homeland Security to share information about them with Koch, claiming that 8 U.S.C. § 1367 protected such information from disclosure.

Koch moved to compel production and for reconsideration of the existing protective order. The magistrate judge granted the motion in relevant part, allowing discovery of U visa-related information:

[Koch] now focuses on one particular area not raised earlier: discovery concerning the individual plaintiffs' and claimants' attempts to obtain U visas [and] other immigration benefits that may be available to them because of the allegations they have made. It is Koch Foods's contention that some of the allegations ... are false and were made solely for the purpose of obtaining such benefits.... Koch Foods has raised a legitimate defense.... The relevance of this information clearly outweighs its in terror[e]m effect, as any individuals who have applied for immigration benefits have, necessarily, already disclosed their immigration status to federal authorities.

Plaintiffs moved for review of the magistrate judge's order.8 After examining some of the information Koch sought in camera, the district court upheld the order in part and modified it in part. The court found that 8 U.S.C. § 1367 and its implementing regulation barred the EEOC from revealing any information related to the claimants' U visa applications. Accordingly, it excused the agency from complying with Koch's demand. However, the court found that § 1367 did not similarly excuse the claimants themselves. The court then determined that Rule 26 did not otherwise preclude U visa discovery from the individual claimants, reasoning that the discovery was relevant to the claimants' credibility, that it might explain an “exponential jump in claims after the EEOC became involved,”9 and that the relevance of the information sought outweighed the in terrorem effect of producing it.10 In a subsequent order, the court clarified that Koch Foods could obtain U visa information from all claimants: that is, from both the workers who had separately sued Koch, and the workers whom the EEOC claimed had been harassed, but who had not joined the separate lawsuit. Nevertheless, the court emphasized that not all information about claimants' immigration history was discoverable: discovery was to be “limited to information regarding efforts to obtain U Visas, or other immigration benefits, that arose out of the allegations in this civil action against Koch Foods.”

At the district court's direction, the magistrate judge entered a protective order to govern U visa discovery....

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