Liu v. Basf Corp.
| Decision Date | 16 March 2009 |
| Docket Number | No. 4:07-cv-00149-RAW.,4:07-cv-00149-RAW. |
| Parties | Lixin LIU, Plaintiff, v. BASF CORPORATION and BASF Plant Science LLC d/b/a Exseed Genetics, Defendant. |
| Court | U.S. District Court — Southern District of Iowa |
Michael J. Carroll, Babich Goldman Cashatt & Renzo PC, Des Moines, IA, for Plaintiff.
Kerrie M. Murphy, Gonzalez Saggio & Harlan LLP, West Des Moines, IA, for Defendant.
RULING ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Before the Court following hearing is defendants' motion for summary judgment [17]. Plaintiff Lixin Liu is of Chinese national origin. He was an employee of BASF Plant Sciences ("BPS") working under an H-1B visa sponsored by BPS. His employment was terminated in March 2006 when his eligibility to work in the United States was about to expire. Mr. Liu filed a Complaint on April 10, 2007 which, as amended, alleges the termination of his employment was a product of unlawful national origin discrimination in violation of Title VII of the Civil Rights Act of 1964 as amended ("Title VII"), 42 U.S.C. § 2000e, et seq., (Count I) and the Iowa Civil Rights Act (ICRA), Iowa Code Chapter 216 (Count II). The case was referred to the undersigned for all further proceedings pursuant to 28 U.S.C. § 636(c). In response to the present motion plaintiff concedes summary judgment is appropriate on his claims against defendant BASF Corporation.1
Defendants are entitled to summary judgment 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." Buboltz v. Residential Advantages, Inc., 523 F.3d 864, 868 (8th Cir.2008)(quoting Fed.R.Civ.P. 56(c)); see Hervey v. County of Koochiching, 527 F.3d 711, 719 (8th Cir.2008). A genuine issue of material fact exists "if it has a real basis in the record." Hartnagel v. Norman, 953 F.2d 394, 395 (8th Cir.1992)(citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). A "genuine issue of fact is material if it `might affect the outcome of the suit under the governing law.'" Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).
The court must view the facts in the light most favorable to the nonmoving party, and give that party the benefit of all reasonable inferences which can be drawn from them. See Carlson v. Roetzel & Andress, 552 F.3d 648, 650 (8th Cir.2008); Hervey, 527 F.3d at 719; EEOC v. Liberal R-II Sch. Dist., 314 F.3d 920, 922 (8th Cir.2002). Reasonable inferences are "those inferences that may be drawn without resorting to speculation." Mathes v. Furniture Brands Int'l, Inc., 266 F.3d 884, 885-86 (8th Cir.2001) (citing Sprenger v. Fed. Home Loan Bank of Des Moines, 253 F.3d 1106, 1110 (8th Cir.2001)); see Matsushita, 475 U.S. at 587, 106 S.Ct. 1348; Riley v. Lance, Inc., 518 F.3d 996, 1001 (8th Cir.2008); Erenberg v. Methodist Hosp., 357 F.3d 787, 791 (8th Cir.2004).
The moving party must first inform the court of the basis for the motion and identify the portions of the summary judgment record which the movant contends demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Robinson v. White County, Ark., 459 F.3d 900, 902 (8th Cir.2006). The nonmoving party must then "go beyond the pleadings and by affidavits, depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue of material fact." Rouse v. Benson, 193 F.3d 936, 939 (8th Cir.1999); see Satcher v. University of Arkansas at Pine Bluff Bd. of Trustees, 558 F.3d 731, 734 (8th Cir.2009)(plaintiff must "show that there [are] genuine issues of material fact in the record"); In re Patch, 526 F.3d 1176, 1180 (8th Cir.2008); Thomas v. Corwin, 483 F.3d 516, 526-27 (8th Cir.2007); Littrell v. City of Kansas City, Mo., 459 F.3d 918, 921 (8th Cir.2006).
Summary judgment should be approached with caution in employment discrimination cases because they are "inherently fact based." Wallace v. DTG Operations, Inc., 442 F.3d 1112, 1118 (8th Cir.2006); Simpson v. Des Moines Water Works, 425 F.3d 538, 542 (8th Cir.2005)(quoting Mayer v. Nextel West Corp., 318 F.3d 803, 806 (8th Cir.), cert. denied, 540 U.S. 823, 124 S.Ct. 153, 157 L.Ed.2d 43 (2003), quoting in turn Keathley v. Ameritech Corp., 187 F.3d 915, 919 (8th Cir.1999)). However, "no separate summary judgment standard exists for discrimination . . . cases and . . . such cases are not immune from summary judgment." Wallace, 442 F.3d at 1118 (citing Berg v. Norand Corp., 169 F.3d 1140, 1144 (8th Cir.1999)).
Many of the underlying facts are not disputed. To the extent they are, the following summary presents them in the light most favorable to Mr. Liu.
BPS is involved in the research, development and marketing of agromic traits. (Def. App. at 6). Its headquarters is located at Research Triangle Park in North Carolina. (Id. at 26). It also has facilities in other parts of the United States. (Id. at 6). At the time Mr. Liu was employed by BPS, it had a research unit in Ames, Iowa which was involved in plant genetics research. (Id. at 10).
As noted, Mr. Liu is of Chinese national origin. (Amended Complaint ¶ 7).2 In January 2003 BPS hired Mr. Liu to work as a Research Associate. (Def. App. at 10). Prior to receiving an offer of employment, Mr. Liu was interviewed by Dr. Peter Keeling, Dr. Hangping Guan and Suzy Cocciolone. (Id. at 13). Dr. Keeling was the Manager of Biotechnology and Unit Director of the Ames Research Unit. (Id. at 10). In December 2002 Dr. Keeling had recommended that BPS offer employment to Mr. Liu. (Id. at 11).
At the time he commenced employment with BPS, Mr. Liu held an F-1 student visa which permitted him to study in the United States. (Def. App. at 31). To work for BPS, Mr. Liu was required to obtain an H-1 visa, a temporary visa which would allow him to work in the United States. (Id. at 27). BPS sponsored Mr Liu's H-1 visa application. (Id. at 27). On April 24, 2003, Jonathon Sprowl, a BASF Human Resource Manager assigned to oversee all human resource matters for BPS, including immigration, executed an H-1 application for Mr. Liu. (Id. at 6). The application was approved on May 5, 2003 and Mr. Liu was issued an H-1B visa.3 (Id. at 32). The visa was valid from May 20, 2003 to May 20, 2006. (Id.)
Mr. Liu was considered a nonimmigrant "alien in a specialty occupation." (Def. Supp. App. at 1). As such he could work a total of six years in H-1B status after which, unless his status was changed, his work eligibility would expire. (Def. App. at 20). See 8 C.F.R. § 214.2(h)(13)(iii)(A). Though on an F-1 student visa at the time he was hired by BPS, Mr. Liu had previously expended some of his H-1B time working for other employers. (Id.)4
With the H-1B visa in hand permitting temporary employment, BPS, consistent with its prior filings on behalf of other employees performing comparable jobs, pursued an EB-3 permanent immigrant visa for Mr. Liu—a "green card." (Def. App. at 7). Again, BPS was Mr. Liu's sponsor. (Id.) For this purpose BPS employed the services of the Alan Gordon immigration law firm in North Carolina ("the Gordon law firm"). (Def. Supp. App. at 1; Pl. App. at 7). On January 21, 2004 Mr. Sprowl sent an e-mail to the Gordon law firm instructing the firm to start the green card application process for Mr. Liu. A few days later the firm sent a questionnaire to Mr. Liu. (Pl. App. at 8). Mr. Liu says he asked Mr. Sprowl if he could hire an attorney to handle his immigration paperwork but was told BASF did not allow employees to hire their own lawyers for the immigration process. (Id. at 7). Mr. Sprowl told Mr. Liu that BASF had a contract with the Gordon law firm to handle immigration issues and had been satisfied with the firm's services. (Id.)
The major tasks that must be completed as part of an application for an EB-3 permanent immigrant visa are (1) "labor recruitment," which involves internal and external advertising of the nonimmigrant's position with the company to determine if there are any qualified candidates who are United States citizens; (2) filing an Application for Alien Labor Certification (the "labor certification application"), with request for waiver/reduction in recruitment; (3) obtaining approval of the application; and (4) filing an I-485 petition for permanent residency (the green card). (Def. App. at 7). Timing is important. The labor certification application must be filed at least one year prior to expiration of a nonimmigrant's H-1B visa in order for the H-1B visa to be eligible for annual renewal during the time it takes to process the permanent visa application. (Id.)
Mr. Liu was dissatisfied with the pace with which his permanent residency was being pursued and what he says was the unresponsiveness of the Gordon law firm. He contacted Dr. Keeling about this and shortly afterward, in late April 2004, the Gordon law firm sent Mr. Liu a draft "Form ETA 750, Part B" ("the ETA form") to review with a request that he provide more detailed employment information, sign and return the form. (Pl. App. at 9; Def. Supp. App. at 16). The ETA form had to be filed with the labor certification application. Mr. Liu was told the law firm needed the additional employment information to begin drafting the recruitment advertisements. (Def. App. at 18; Def. Supp. App. at 16). Mr. Liu did as instructed. Apparently there was some continuing concern about the adequacy of Mr. Liu's job description. Mr. Liu drafted a tentative job description and on May 19, 2004 signed another ETA form and sent it to the Gordon law firm. (Pl. App. at 9; ...
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