Zamora v. Elite Logistics, Inc.
| Decision Date | 04 May 2004 |
| Docket Number | No. 03-2230-JWL.,03-2230-JWL. |
| Citation | 316 F.Supp.2d 1107 |
| Parties | Ramon ZAMORA, Plaintiff, v. ELITE LOGISTICS, INC., Defendant. |
| Court | U.S. District Court — District of Kansas |
Aldo P. Caller, Kansas City, KS, for Plaintiff.
Carl A. Gallagher, Ryan B. Denk, McAnany, Van Cleave & Phillips, P.A., Kansas City, KS, for Defendant.
Plaintiff Ramon Zamora filed suit against his former employer, defendant Elite Logistics, Inc., alleging defendant unlawfully terminated him on the basis of his race, nationality, or national origin in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e et seq.1 This matter is presently before the court on defendant's motion for summary judgment (doc. 33). For the reasons explained below, defendant's motion is granted and this case is dismissed.
Plaintiff is originally from Mexico. He was issued his social security card in the United States in approximately 1980 or 1981 and became a lawful permanent resident in 1987. Defendant hired him in August of 2001. At that time, he disclosed the fact that he was a Mexican national. He presented his alien registration card, his social security card, and signed an I-9 form.
In December of 2001, defendant received a tip about a possible inspection by the Immigration and Naturalization Service ("INS") at its location on Kansas Avenue in Kansas City, Kansas. Although defendant's policy had been to make copies of documents requested in connection with I-9 forms, defendant's human resources manager, Larry Tucker, was informed that there was a period of time when defendant had not necessarily obtained, copied, or even asked for the appropriate documentation required by the I-9 form, and therefore there was a good possibility that illegal aliens were working for defendant. Apparently the origin of this problem was a strike in approximately June of 2000. Because of the strike, defendant needed to hire approximately three hundred employees during a period of a few weeks. At the time, defendant's hiring practices had been that if they could "get a body in the door," they would hire the individual. The appropriate background checks and visual inspections of right-to-work and identity documents had not been conducted on all of these employees.
After Mr. Tucker received the tip regarding the anticipated INS inspection, defendant had the social security numbers ("SSNs") of all of its approximately 650 employees at the Kansas Avenue location checked by two different independent contractors, Datasource and Verifications, Inc. On January 9, 2002, Datasource notified defendant that someone else had used plaintiff's SSN in Stockton, California, and Manteca, California, in 1989, 1995, and 1997. Defendant then requested that Verifications also check plaintiff's SSN. In March of 2002, Verifications notified defendant that someone else had used plaintiff's SSN for credit purposes. The report stated that verification through the Social Security Administration "can only be done by the company that has hired the applicant by calling 800-772-1213." Mr. Tucker did not ask plaintiff whether he had ever worked in Stockton or Manteca, and he did not call the 800 number to verify the information from Verifications. Instead, he decided to "put the burden of proof on the employee" because approximately 35-40 of the 650 SSNs had come back to defendant with problems.
On May 10, 2002, Mr. Tucker called plaintiff into his office. He asked plaintiff to provide documentation within ten days establishing that he had a right to work in the United States. Mr. Tucker presented plaintiff with two memoranda that were virtually identical except that one was in English and the other was in Spanish. The English version stated:
It is required by federal law that all employees produce documents, which establish their identity and/or employment eligibility to legally work in the United States when they are hired. This eligibility can be established with a U.S. Passport, a Certificate of Citizenship or Naturalization; or with a combination of other documents, such as a state driver's license, state or federal ID card, U.S. Social Security card and/or a certified copy of a birth certificate, issued by a state of the United States.
It has come to our attention that the documents you provided us previously are questionable. Therefore, we are asking that you obtain proper documentation, or you may not be permitted to continue working here. Please bring proper evidence of your identity and employment eligibility no later than five o'clock p.m. on Monday, May 20, 2002, to the Department of Human Resources, or you may be terminated. Thank you.
On the bottom of the form was a portion regarding "Eligibility Documentation," which stated:
I understand and agree that until and if I provide documents, which establish my identity and/or employment eligibility to legally work in the United States, Elite Logistics may not be able to continue permitting me to work. I also understand and agree that I have until five o'clock p.m. on Monday, May 20, 2002, to produce this documentation.
Plaintiff signed and dated this return memorandum May 10, 2002.
On May 22, 2002, Mr. Tucker once again had plaintiff brought to his office along with Ray Puentes, who was plaintiff's union steward and who acted as a translator. Mr. Tucker told plaintiff that he had asked for documentation on May 10, but that plaintiff had failed to provide it. Mr. Tucker told plaintiff that defendant would put him back to work if and when he brought back the appropriate documentation. Until then, however, Mr. Tucker told Mr. Puentes to tell plaintiff: "You have to bring these additional documents or you can't work here." Thus, plaintiff was taken off work indefinitely until he could bring in the appropriate documents to demonstrate he was entitled to work. At one point during this conversation, Mr. Puentes, presumably speaking for plaintiff, accused Mr. Tucker of picking on Hispanic employees.
On or about May 22, 2002, plaintiff brought Mr. Tucker a document from the INS showing he had applied for naturalization in 2001. Along with this document were earnings records from the Social Security Administration showing the use of plaintiff's SSN by someone named "R. Zamora" and whose date of birth was "2/1960." The document that plaintiff had provided to defendant when he was hired, however, showed his date of birth to be June 14, 1961. Mr. Tucker became even further concerned about plaintiff's SSN when he noticed the different birth dates. Mr. Tucker expressed these concerns to plaintiff and informed plaintiff that he would need to bring in further documentation to establish his right to work. The INS form provided a customer service number, but Mr. Tucker did not call that number.
Plaintiff testified in his deposition that on or about May 22, 2002, he presented Mr. Tucker with his naturalization certificate and told Mr. Tucker he was now a United States citizen. Mr. Tucker, however, did not accept this paperwork as adequate. He told plaintiff he did not care about this but instead wanted social security papers or another SSN. Mr. Tucker told plaintiff not to come to work until he got a different SSN. Plaintiff testified in his deposition that he also presented Mr. Tucker with his social security card, that Mr. Tucker told him his SSN was stolen from someone else, and that Mr. Tucker treated him rudely in rejecting his documentation.3
On May 23, 2002, plaintiff brought Mr. Tucker a document dated May 23, 2002, bearing the office stamp of the Social Security Administration. The document stated plaintiff's SSN was assigned to an individual named "Ramon Zamora Farias." This name corresponded with the name on the documents that plaintiff had originally provided to defendant when he was hired. Mr. Tucker told plaintiff that defendant would have to verify this documentation, and that if the information checked out he could come back to work. Mr. Tucker directed his secretary to confirm with the Social Security Administration that plaintiff was the individual who was actually assigned the SSN and, if so, to call plaintiff and direct him to report to work. His secretary confirmed the SSN was indeed assigned to plaintiff and, on May 25, 2002, she called him and asked him to return to work.
On or about May 29, 2002, plaintiff presented Mr. Tucker with a letter that stated:
I was told on Saturday, May 25 that I could come back to work on Wednesday, May 29. Before I could consider going back to work I need from you two things: 1) an apology in writing, and 2) a complete explanation of why I was terminated.
Please send a response to my home .... Thank you.
Plaintiff testified in his deposition that he would not have returned to work unless he received a written apology and an explanation of why he was taken off work.4
According to Mr. Tucker's deposition testimony, he considered plaintiff a "voluntary quit" at that point because he was not going to apologize to plaintiff. He explained that was
[b]ecause he had a job waiting for him; I was willing to accept him back into his spot on the seniority roster in the job he had been doing with no disciplinary action, no adverse action of any kind. And he said — in this written statement he said, "I will only come back to work if I receive a written apology." And my position and my thought process would have been, "You can go downstairs and you can start working or you can choose not to, but you're not getting a written apology."
Plaintiff testified in his deposition that Mr. Tucker grabbed the letter and told plaintiff he was fired because he was not going to apologize. Mr. Tucker told plaintiff that he did not have to give plaintiff an explanation and that he would fire plaintiff rather than apologize. In an e-mail to human resources personnel that same day,...
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