Zamora v. Elite Logistics, Inc.

• Decision Date: 05 June 2006
• Docket Number: No. 04-3205.,04-3205.
• Citation: 449 F.3d 1106
• Parties: Ramon ZAMORA, Plaintiff-Appellant, v. ELITE LOGISTICS, INC., Defendant-Appellee. Kansas Hispanic & Latino American Affairs Commission; Hispanic Ministry for the Archdiocese of Kansas City, Kansas; El Centro, Inc.; Apoyo Trabajador De Lawrence/Migrant Worker Solidarity of Lawrence; Harvest America Corporation, Amici Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

449 F.3d 1106

Ramon ZAMORA, Plaintiff-Appellant, v. ELITE LOGISTICS, INC., Defendant-Appellee.

Kansas Hispanic & Latino American Affairs Commission; Hispanic Ministry for the Archdiocese of Kansas City, Kansas; El Centro, Inc.; Apoyo Trabajador De Lawrence/Migrant Worker Solidarity of Lawrence; Harvest America Corporation, Amici Curiae.

No. 04-3205.

United States Court of Appeals, Tenth Circuit.

June 5, 2006.

Aldo P. Caller, Kansas City, KS, for Plaintiff-Appellant.

Ryan B. Denk (Carl A. Gallagher with him on the brief) of McAnany, Van Cleave & Phillips, P.A., Kansas City, KS, for Defendant-Appellee.

Marielena Hincapie and Anita Sinha, National Immigration Law Center, Oakland, CA, and Christopher Ho and William N. Nguyen, The Legal Aid Society — Employment Law Center, San Francisco, CA, filed an amici curiae brief on behalf of Plaintiff-Appellant.

Before EBEL, HOLLOWAY and LUCERO, Circuit Judges.

HOLLOWAY, Circuit Judge.

Plaintiff-appellant Ramon Zamora sued his former employer, defendant-appellee Elite Logistics, Inc., alleging it had discriminated against him on the basis of his race or national origin in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. The district court granted the defendant's motion for summary judgment and issued a published opinion, 316 F.Supp.2d 1107 (D.Kan.2004). Plaintiff now brings this appeal.

I

The following summary is drawn from the district judge's opinion, which gives a more detailed background.¹

Plaintiff is originally from Mexico. He obtained a social security card in 1980 or 1981 and became a lawful permanent resident in 1987. It appears that he obtained United States citizenship during the months at issue in this appeal. He was hired by the employer in 2001, at which time he acknowledged that he was a Mexican citizen and showed proof of his legal status in the form of his alien registration card and his social security card. He also signed an I-9 form in which he stated under penalty of perjury that he was a lawful permanent resident.

In December 2001, just a few months after plaintiff's employment had begun, the employer received a tip that the Immigration and Naturalization Service (INS)² might soon conduct an inspection of the facility to investigate compliance with the immigration laws. The defendant employer was concerned because in the summer of 2000, in response to a strike, the employer had hired 300 people in a short period of time, and in its haste had likely not completed the appropriate I-9 forms. The I-9 form requires not only that the newly hired employee swear to his eligibility for employment but also that the employer verify that it has performed a visual inspection of documents submitted by the employee to support the declaration of eligibility, as required by the Immigration Reform and Control Act of 1986 (IRCA).

The employer's response to its perceived problem was to have the social security numbers of all of its 650 employees checked by two outside contractors. Both companies reported that someone else had used plaintiff Zamora's social security number in California in 1989, 1995, and 1997. On May 10, 2002, defendant's personnel director, Larry Tucker, called plaintiff in and told him that he had ten days to provide documentation showing that he had a right to work in the United States. This same procedure was used with all other employees whose social security numbers, when checked by the outside contractors, revealed apparent inconsistencies. The inquiries into the social security numbers of defendant's 650 employees reported apparent problems with the social security numbers of 35. Of these, all but four quit when asked for further documentation. Of the four who did not quit, only plaintiff supplied satisfactory documentation. This case arises from the plaintiff's efforts to supply that documentation and the employer's responses to those efforts.

Tucker testified by deposition that he did not call the toll free number provided by Social Security to verify information, did not ask plaintiff if he had ever worked in the towns in California where his number had been used, and instead decided to "put the burden of proof on the employee" because there were 35 employees whose right to work in the United States had been called into doubt by the results of the reports on their social security numbers. The passage of approximately six months from the time that the inquiries commenced until plaintiff Zamora was asked to supply additional documentation suggests, however, that Mr. Tucker was not proceeding hastily and may have, by that time, handled a good many of the other 34 cases, although this is not clear. When Tucker gave plaintiff a 10-day deadline, he also gave him a form (in English and in Spanish) telling him that he could be terminated if he failed to provide adequate documentation.

Although plaintiff was a legal resident, he did not bring any more documents in the ten day period. As far as we can determine, however, the defendant has never contended in this lawsuit that the documents plaintiff had supplied at the time of hiring were insufficient to establish his lawful status and right to work. On May 22, 2002, Tucker called plaintiff in for another interview. Plaintiff appeared with a union steward, Puentes, who also acted as an interpreter. Tucker told plaintiff he was off work indefinitely until he provided the documentation but could return to work if he did provide it. During this interview, Puentes accused Tucker of picking on Hispanic employees.

Later that same day,³ plaintiff brought Tucker his naturalization certificate showing that he had become a United States citizen and a report of earnings from the Social Security Administration. The social security document only increased Tucker's concern, however, because it showed a different birth date than the one plaintiff had originally provided. Tucker did not accept the new documents, apparently because of the birth date discrepancy on the social security papers, and told plaintiff that he wanted social security papers or another social security number. Tucker told plaintiff not to return to work until he got another social security number. Plaintiff testified that he showed Tucker his social security card but that Tucker rudely told him that the number was stolen from someone else.

The next day plaintiff brought in a social security document, dated that same day and bearing an office stamp, which stated that the number was assigned to him. Tucker told plaintiff he would have to verify the document. Tucker had his secretary contact the Social Security Administration, and the information was confirmed. Two days later, May 25, 2002, the secretary called plaintiff and asked him to return to work.

On May 29, plaintiff came to the work place with a letter which in part stated: "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." In his deposition, plaintiff testified that he would not have returned to work without these conditions being met. Tucker testified that he considered this a resignation because he was not going to apologize to plaintiff. Plaintiff testified that Tucker grabbed the letter and told him he was fired because Tucker would not apologize and did not have to explain.

In an e-mail to other human resources personnel that day, Tucker said that he had told plaintiff that his demands "were not acceptable and would not even be considered. I gave him his check from last week and ordered him out of the building." Tucker testified in his deposition that he may have told plaintiff to "just get the hell out."

II The District Court's Analysis

In his opinion, the district judge noted that plaintiff alleged that he had suffered adverse employment action on May 22 when he was taken off work indefinitely and on May 29 when he was discharged. Defendant contended that neither event was an adverse employment action, and so that plaintiff had failed to make a prima facie case.⁴ Alternatively defendant said that it had acted for legitimate reasons which plaintiff could not show to have been pretextual.

The judge decided that plaintiff had satisfied his prima facie burden with respect to both the May 22 suspension and the May 29 termination. As to the first claim, based on the May 22 suspension, the judge held that defendant had given a legitimate, neutral reason for its action — the fear of being fined if it were found not to have complied with its duty under IRCA not to knowingly employ illegal aliens. The judge found that plaintiff had not presented any evidence that the employer's stated justification was mere pretext for unlawful discrimination.

In that connection, the judge noted that ordinarily plaintiffs try to show pretext by showing that others were treated differently, but that in this case that could not be done because the employer had checked on the social security numbers of all employees and had given the same memorandum to all whose numbers were called into question by the inquiries it had made. The judge proceeded to consider whether plaintiff had shown pretext in some other way, and looked particularly at Tucker's rejection of the INS documents plaintiff had proffered and his specific demand for social security documents. But the judge opined that it was "highly significant" that when plaintiff did produce a certain social security document on May 23, Tucker had his secretary verify the document and then immediately offered to reinstate plaintiff. The evidence showed, the judge found, that the "sole impetus" behind Tucker's actions was a concern about the validity of plaintiff's documents.

The judge dismissed plaintiff's contentions about Tucker's failure to look at the documents in the defendant's own file from the time plaintiff was hired and his failure to call the phone numbers on the social security forms. Tucker had...