Gupta v. Thomas Perez, Sec'y of Labor, & Wipro Ltd.

• Decision Date: 27 April 2015
• Docket Number: Case No. 14–4054 FLW.
• Citation: 101 F.Supp.3d 437
• Parties: Arvind GUPTA, Plaintiff, v. Thomas PEREZ, Secretary of Labor, and Wipro Ltd., Defendant.
• Court: U.S. District Court — District of New Jersey

101 F.Supp.3d 437

Arvind GUPTA, Plaintiff,

v.Thomas PEREZ, Secretary of Labor, and Wipro Ltd., Defendant.

Case No. 14–4054 FLW.

United States District Court, D. New Jersey.

Signed April 27, 2015.

Arvind Gupta, India, pro se.

James A. Scharf, Office of the United States Attorney, San Jose, CA, Frances C. Bajada, Office of the U.S. Attorney, Carmon M. Harvey, LeClairRyan, Newark, NJ, for Defendant.

OPINION

WOLFSON, District Judge:

Pro sePlaintiff¹Arvind Gupta (“Plaintiff,” or “Gupta”) seeks judicial review of the February 27, 2014 Final Decision and Order issued by the Administrative Review Board (“ARB”) of the Department of Labor (“DOL”) regarding Plaintiff's DOL complaint filed against Defendant Wipro Limited (“Wipro”), and asserts associated other claims. Presently before the Court are cross-motions for summary judgment filed by (1) Plaintiff; (2) Defendant Thomas Perez, Secretary of Labor (“the Government”); (3) and Wipro. Also before the Court is Plaintiff's motion for preliminary injunctive (equitable) relief against Wipro. Plaintiff has separately also filed a motion for leave to file supplemental claims and add a party.

For the reasons set forth below, Plaintiff's motion for summary judgment is DENIED and the Government and Wipro's motions for summary judgment are GRANTED. Plaintiff's motion for preliminary equitable (injunctive) relief is also DENIED. Finally, Plaintiff's motion for leave to file supplemental claims and add a party is DENIED WITHOUT PREJUDICE.

I. Background

a. Gupta's Work with Wipro

The following facts are undisputed unless otherwise indicated. Gupta, a resident of India, entered the United States in 2003 to work for Wipro²as an H–1B worker, pursuant to a labor condition application (“LCA”) approved by DOL. Govt.'s Stmt. Of Undisputed Mat'l Facts (“Govt.'s Stmt. Of Facts”) ¶ 1. Gupta commenced U.S. employment with Wipro on May 11, 2003, and first received wages from Wipro on May 30, 2003. Wipro's Response to Pl.'s Stmt. Of Facts ¶¶ 1, 2. Gupta's initial H–1B visa was approved through August 1, 2005. Wipro's Stmt. Of Facts ¶ 5.

In June 2005, Wipro petitioned United States Citizenship and Immigration Services (“USCIS”) for an extension of Gupta's authorized period of employment in the United States. USCIS approved the petition on August 19, 2005, for the period between August 18, 2005 and June 10, 2008. Pl.'s Stmt. Of Facts ¶¶ 5, 6. Likewise, DOL certified the LCA supporting Wipro's H–1B petition for the period between June 14, 2005 and June 10, 2008. Id.¶ 7; A.R. 494, 397.

In January 2006, Gupta joined a Wipro project in Atlanta, GA. Pl.'s Stmt. Of Facts. ¶ 10; Wipro's Stmt. Of Facts ¶ 11. The parties dispute whether Gupta resigned or whether Wipro relieved Gupta from his duties three months later. However, the parties agree that Wipro did not assign Plaintiff any “fee-producing or productive” work after March 17, 2006,³with the exception of wages Wipro paid to Gupta in March 2008 for the month of March. Pl.'s Response to Wipro's Stmt. Of Facts ¶ 13; Govt.'s Stmt. Of Facts ¶ 5; see alsoA.R. 395–96, 496–97.

At the end of April 2009, Gupta departed the United States and returned to India. Govt.'s Response to Pl.'s Stmt. Of Facts ¶ 25. In May 2009, Gupta attempted to start a recruiting business with offices in the United States and in India.⁴Govt.'s Stmt. Of Facts ¶ 6. However, the attempt was unsuccessful. SeeA.R. 81–86.

b. Gupta's DOL Complaint and ALJ Proceedings

In May 2009, Gupta filed a complaint with DOL's Wage and Hour Division (“WHD”) in San Francisco, alleging that Wipro took unauthorized deductions from Gupta's wages and seeking relief under the H–1B nonimmigrant worker provisions of the INA. Pl.'s Stmt. Of Facts ¶ 28; Wipro's Response to Pl.'s Stmt. Of Facts ¶ 28. That same month, the WHD responded to Gupta's complaint and did not find reasonable cause to conduct an investigation, because Gupta filed the complaint more than 12 months after the last alleged unlawful deduction.⁵SeeA.R. 3. However, the WHD permitted Gupta to submit additional information to support his complaint.

Pl.'s Response to Wipro's Stmt. Of Facts ¶ 18; A.R. 3.

In June 2009, Gupta filed a second complaint and submitted to the Administrator a single pay stub dated June 1, 2009, from a then-current Wipro employee, asserting that Wipro had also taken unlawful deductions from that employee's pay. Govt.'s Stmt. Of Facts ¶ 11; A.R. 470. Gupta claimed to have obtained the pay stub in his work as a business recruiter. Govt.'s Stmt. Of Facts ¶ 12. By letter dated January 7, 2010, WHD informed Gupta that reasonable cause existed to conduct an investigation of Wipro, and the Complaint was assigned a Case ID number 1570230. Pl.'s Stmt. Of Facts ¶¶ 31, 34; A.R. 1, 471. The WHD considered the complaint to be potentially viable because Gupta appeared to represent himself as a Business Competitor Complainant, which, if true, meant that Gupta had standing to bring such a complaint as an aggrieved competitor of Wipro. A.R. 3; see also20 C.F.R. § 655.715. Later, however, in an April 22, 2010 email to the WHD investigator in charge of his case, Gupta stated that he had never started a recruiting business. Govt.'s Stmt. Of Facts ¶ 14.

As an apparent result of Gupta's April 2010 email, on May 7, 2010, the Administrator issued a Determination on Gupta's complaint and found no reasonable cause.⁶Pl.'s Stmt. Of Facts ¶¶ 36–37; see alsoA.R. 65–70. On July 12, 2010, Gupta sent an email to WHD, requesting that the principles of equitable tolling be applied to his May 2009 DOL complaint as an aggrieved worker, because Wipro allegedly misled him about his rights. SeeA.R. 124–25. On August 26, 2010, Gupta filed a “Motion for Order Setting Forth Discovery and Briefing Schedule and Motion for Hearing and prehearing Order” with the Office of Administrative Law (“OAL”) and requested a hearing regarding his complaint in front of an Administrative Law Judge (“ALJ”). See id.¶¶ 39–41; A.R. 31.

On November 3, 2010, the ALJ issued an order directing the Administrator to show cause why, given the Administrator's initial decision to conduct an investigation based on Gupta's complaint, the Administrator was not required to issue a post-investigation determination letter under 20 C.F.R. § 655.806(b).⁷Pl.'s Stmt. Of Facts ¶ 17; Nov. 3, 2010 ALJ Order.

In her response to the show cause order, the Administrator requested that the ALJ dismiss the case for lack of subject matter jurisdiction. Id.¶ 18. The Administrator attached Gupta's April 22, 2010 email, in which Gupta stated that he had never started a recruiting business, and further argued that based on this admission, Gupta could not file a complaint as an aggrieved “competitor” of Wipro under 20 C.F.R. § 655.715and § 655.806(a).

In a December 23, 2010 order, the ALJ construed the Administrator's response to the show cause order as a motion for summary decision and invited the parties to supplement the record. Id.¶ 20; A.R. 117. Both Gupta and the Administrator filed supplemental briefs with exhibits. A.R. 120–177. In his supplemental brief, Gupta argued that his complaints should be considered on the following bases: (1) on his own behalf as a “former H–1B worker”; (2) on behalf of a current H–1B worker as a “competitor” or “future or potential competitor,” see20 C.F.R. § 655.715; (3) on behalf of a current H–1B worker as a “credible information source,” see20 C.F.R. § 655.807;⁸and (4) on behalf of a current H–1B worker (the same worker as alleged in (2) above) as a worker in a specialty occupation in non-productive status within 12 months of filing a complaint.⁹A.R. 128–29.

In a decision and order dated March 28, 2011, the ALJ dismissed Gupta's case. A.R. 232. At the outset, the ALJ noted that she had not notified Wipro of the proceedings in light of Gupta's earlier request that his identity remain confidential to the extent possible. Pl.'s Stmt. Of Facts ¶ 23; A.R. 219. The ALJ found that Gupta was entitled to request a hearing because, under 20 C.F.R. § 655.806(b), the Administrator should have issued a post-investigation determination letter after accepting Gupta's claim for investigation, which provides an interested party with the opportunity to request a hearing. Pl.'s Stmt. Of Facts ¶ 24; A.R. 219–20. However, given that Gupta had requested a hearing, the ALJ concluded that Gupta was not prejudiced by the Administrator's failure to issue a determination letter. Pl.'s Stmt. Of Facts ¶ 25; A.R. 228.

Reiterating that she had construed the Administrator's response to her November 3, 2010 order to show cause as a motion for summary decision, the ALJ reviewed the record and determined that the Administrator was entitled to summary decision. Pl.'s Stmt. Of Facts ¶ 26; A.R. 229. First, the ALJ concluded that Gupta's aggrieved worker complaint under 20 C.F.R. § 655.805(a)(2)was untimely, as Gupta failed to file it within twelve months of Wipro's most recent allegedly unlawful deduction from his pay and because Gupta was not entitled to equitable tolling. Govt.'s Stmt. Of Facts ¶ 27; A.R. 229. Second, the ALJ found that Gupta was not an aggrieved competitor under 20 C.F.R. § 655.715, because “the regulation does not define an aggrieved party as a ‘potential or future competitor’ but rather, quite plainly, as a competitor.” A.R. 231. Finally, the ALJ decided that she did not have the authority to review Gupta's assertion that his complaint should be considered under 20 C.F.R. § 655.807as a non-aggrieved “credible information source” complaint, because “the regulation specifically states that no hearing is available from a decision by an Administrator declining to refer [such] allegations to the Secretary [of Labor]. The Administrator's discretion in this area is plenary and nonreviewable.”¹⁰A.R. 232.

Gupta appealed the ALJ's dismissal order to the DOL's Administrative Review Board (“ARB”). A.R. 539. On May 9, 2011, Gupta moved before the ARB to amend the dates of his employment in his complaint.¹¹A.R. 484–493. On August...