UNITED STATES' RESPONSE TaMARICOPA COUNTY COMMUNITY COLLEGE DISTRICT'S MOTION FOR JUDGMENT ON THE PLEADINGS

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1 I.V.PARP17NT UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEVO i 0 DEC -6 PM 2: 14 OFFICE OF THE CHIEF ADMINISTRATIVE HEARING OFFICER CHIEF UNITED STATES OF AMERICA, COMPLAINANT, v. MARICOPA COUNTY COMMUNITY COLLEGE DISTRICT D/13/A MARICOPA COMMUNITY COLLEGES, RESPONDENT. 8 U.S.C. 1324b PROCEEDING OCAHO CASE NO. 10B00099 UNITED STATES' RESPONSE TaMARICOPA COUNTY COMMUNITY COLLEGE DISTRICT'S MOTION FOR JUDGMENT ON THE PLEADINGS Pursuant to the OCAHO Rules of Practice and Procedure, 28 C.F.R (b, Complainant, United States of America, by the Office of Special Counsel for Immigration- Related Unfair Employment Practices ("Office of Special Counsel", responds in opposition to Respondent, Maricopa County Community College District's Motion for Judgment on the Pleadings (the "Motion". For the reasons set forth below, Respondent's Motion should be denied. I. INTRODUCTION Pursuant to Rule 12(c of the Federal Rules of Civil Procedure, Respondent states that the Complaint should be dismissed for failure to sufficiently allege intentional discrimination as required to demonstrate a violation of 8 U.S.C. 1324b(a(1 and (6. Specifically, Respondent claims that the United States has offered only conclusory allegations from which intentional

2 discrimination on the basis of citizenship status cannot be inferred or predicated.' Motion at 1-3, 8-9. In light of controlling and relevant case law and the allegations set forth in the Complaint, this argument is meritless. The United States has alleged with specificity, pursuant to Federal Rules of Civil Procedure Rule 8, that Respondent acted with the intent to discriminate through a policy that imposed separate and additional documentary requirements on all of its newly hired non-citizen employees for the purpose of employment eligibility verification, constituting a pattern or practice of disparate treatment on the basis of an individual's citizenship status in violation of 8 U.S.C. 1324b. Accordingly, Respondent's Motion must be denied. 2 II. STANDARD OF REVIEW A motion for judgment on the pleadings is analyzed using the same standard of review as a motion to dismiss brought under Federal Rules of Civil Procedure Rule 12(b. Dworkin v. Hustler Magazine, Inc., 867 F.2d 1188, 1192 (9th Cir In ruling on a motion to dismiss, the Court must "construe the pleading in the light most favorable to the party opposing the motion, and resolve all doubts in the pleader's favor." Hebbe v. Pliler, F.3d ---, No , 2010 WL , at *1 (9th Cir. Nov. 19, 2010; William 0. Gilley Enters., Inc. v. AtL Richfield Co., 588 F.3d 659, 662 (9th Cir (in reviewing a dismissal for failure to state a claim, 141 allegations of material fact are taken as true and construed in the light most favorable to the non-moving party". "To survive a motion to dismiss, a complaint must contain By the terms of 8 U.S.C. 1324b, intent to discriminate must be demonstrated to establish a violation of the general prohibition against immigration-related unfair employment practices and the document abuse provision. 8 U.S.C. 1324b(a(1, (6. 2 Respondent's Motion further serves as a response to the United States' Motion to Strike Affirmative Defenses that was filed November 3, Respondent seeks to use this Motion to supplement its first and fourth affirmative defense. As to its first affirmative defense that the United States has failed to state a claim, the additional arguments contained in this Motion are unavailing. The Motion further fails to address Complainant's arguments that Respondent's fourth affirmative defense of good faith is invalid as a matter of law. Accordingly, Respondent's first and fourth affirmative defense must be stricken. 3 The OCAHO Rules of Practice and Procedure do not address motions for judgment on the pleadings. Therefore, Federal Rules of Civil Procedure Rule 12(c guides review of Respondent's motion. 28 C.F.R

3 sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. lqbal, 129 S. Ct. 1937, 1949 (2009 (quoting Bell All. Corp. v. Twombley, 550 U.S. 544, 570 (2007 (internal quotation marks omitted. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. The plausibility standard is not a "probability requirement," but only requires "more than a sheer possibility that a defendant has acted unlawfully." Id. III. ARGUMENT The United States has adequately pleaded a pattern or practice of intentional discrimination on the basis of citizenship status by raising specific factual allegations concerning Respondent's policy of imposing separate and additional documentary requirements only on its newly hired non-citizen employees for the purpose of verifying their employment eligibility. Compl , 30-32, 34, The United States has further alleged that in the case of the Charging Party, his failure to comply with these additional documentary requirements prevented him from beginning his employment with Respondent. Compl. Tig Respondent's Motion ignores applicable case law, and relies erroneously on a single distinguishable case, United States v. Diversified Technology & Services of Virginia, Inc., 9 OCAHO no (2003 (Thomas, J.. A. The United States Has Alleged Intentional Discrimination By Pleading Facts that Establish Disparate Treatment Based on Citizenship Status The Complaint in this case advances causes of action under two subsections of the antidiscrimination provision of the Immigration & Nationality Act ("INA". Count I alleges a pattern or practice of document abuse in violation of 8 U.S.C. 1324b(a(6, and Count II alleges a pattern or practice of discriminatory hiring practices in violation of 8 U.S.C. 3

4 1324b(a(1. Under the controlling case law and the precedent of this Court, the factual allegations contained in the Complaint state a claim for a pattern or practice of discrimination in Respondent's hiring and employment eligibility verification process. Compl. TT 24, 30-32, 34, Disparate Treatment on the Basis of Citizenship Status Constitutes Intentional Discrimination Longstanding OCAHO case law has recognized that intent to discriminate can be shown through disparate treatment, which is the intentional act of treating persons differently on a prohibited basis, regardless of what motivates that intent. In Jones v. DeWitt Nursing Home, 1 OCAHO no. 189, 1235 (1990, and Marcel Watch Corp., 1 OCAHO no. 143, 988 (1990, the Court held that discriminatory intent exists "when an employer intentionally treats some people less favorably than others because of their group status" and is "precisely what the antidiscrimination provisions of the INA sought to remedy." DeWitt Nursing Home, 1 OCAHO at 1251; Marcel Watch, 1 OCAHO at 1001 (both citing Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978; Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n.15 ( has been reaffirmed by this Court in several cases. E.g., This interpretation of 8 U.S.C. 1324b Guzman v. Yakima Fruit & Cold Storage, 9 OCAHO no. 1066, 9 (2001 (Thomas, J. (citing to DeWitt Nursing Home and Marcel Watch with approval for analyzing whether the intent to discriminate has been established; see also Iron Workers Local 455 v. Lake Constr. & Dev. Corp., 7 OCAHO no. 964, 632, 678 (1997 (Thomas, J. ("The analytical point of departure for 4 In Dewitt Nursing Home, the Court found discriminatory intent on the basis of citizenship status in the employer's policy of requiring birth certificates from U.S. citizens and excluding the complainant from employment because of his failure to produce his birth certificate. 1 OCAHO at In Marcel Watch, the Court held that insistence by the employer that a worker erroneously perceived to be a non-citizen produce a "green card" was direct evidence of citizenship status discrimination. 1 OCAHO at

5 analysis of citizenship discrimination under IRCA is to be found in the case law developed under Title VII disparate treatment jurisprudence." (citing Marcel Watch, 1 OCAHO at Contrary to what Respondent claims, controlling case law has established that discriminatory intent does not require a showing of animus on the part of the employer. In International Union v. Johnson Controls, Inc., 499 U.S. 187 (1991, the Supreme Court held that "the absence of a malevolent motive does not convert a facially discriminatory policy into a neutral policy... Whether an employment practice involves disparate treatment through explicit facial discrimination does not depend on why the employer discriminates but rather on the explicit terms of the discrimination." Id. at 199 (emphasis added. Similarly, in Robison Fruit Ranch, Inc. v. United States, 147 F.3d 798 (9th Cir. 1998, the Ninth Circuit opined that impermissible documentary requests, if required of non-citizens but not U.S. citizens, as in the case at bar, can constitute disparate treatment in violation of 8 U.S.C. 1324b. Id. at 802. This Court has interpreted the INA's anti-discrimination provision consistently with Johnson Controls and Robison, holding in United States v. Townsend Culinary, Inc. that ill motive is not required to establish a violation of 8 U.S.C. 1324b(a(1 and (6. 8 OCAHO no. 1032, 454, 510 (1999 (Thomas, J. ("In summary, it can be seen that an employer who intentionally treats persons differently based upon a protected characteristic violates anti discrimination laws, despite whatever may have motivated that intent." (emphasis added (citing DeWitt Nursing Home, 1 OCAHO no. 189; Marcel Watch, 1 OCAHO no In Townsend Culinary, the United States proffered evidence that approximately 660 non-citizens were required to produce immigrationrelated documents for employment eligibility and reverification purposes, while U.S. citizens were not similarly required to establish their employment eligibility. Id. at 505. The Court held that the respondent's "discriminatory disparate treatment of its non-u.s. citizen employees, and 5

6 by implication Townsend's intent to discriminate, have been proven..." Id. at 507 (emphasis added. Accordingly, the mere insistence by an employer that more or additional immigrationrelated documents be produced only by individuals with a particular citizenship status but not others constituted discriminatory intent on the basis of citizenship status. 2. The United States' Factual Allegations Sufficiently Allege Intentional Discrimination The Complaint in this case is replete with factual allegations establishing not only that the Charging Party was required to produce specific documentation despite having already proffered sufficient documents for the purpose of verifying his employment eligibility, but that since at least 2008, only non-citizens hired by Respondent were subjected to an explicit policy imposing separate and additional documentary requirements for the purpose of verifying their employment eligibility. Compl , Specifically, these separate and additional documentary requirements were imposed by requiring only non-citizens to complete a Non-U.S. Citizen Employee Tax Data Form ("the Form", which required specific documents issued by the Department of Homeland Security (or the former Immigration and Naturalization Service and a Social Security card to be provided. Compl. 23, 26. Respondent's use of the Form is alleged to be a standard practice and regular operating procedure. Compl. 37. Critically, the Complaint alleges that "only non-u.s. citizens hired by Respondent were required to comply with the specific documentation requirements of the Form[,]" while "employees who are U.S. citizens [were allowed] to provide any document, or combination of documents, permitted on the Form 1-9." Compl. TT 30, 32, The United States has established factual allegations that strike at the heart of the INA's prohibition against citizenship status discrimination in the hiring and employment eligibility verification process. 8 U.S.C. 1324b. Consistent with the disparate treatment analysis 6

7 contemplated by Johnson Controls and Robison and recognized in OCAHO jurisprudence, the United States has clearly alleged that Respondent imposed additional burdens on its non-citizen new hires in the hiring process through its demand for additional documentation, while U.S. citizen new hires were free to provide their choice of documentation. Further, the allegations in the Complaint support the United States' claims that Respondent engaged in a pattern or practice of discrimination in its hiring and employment eligibility verification process. Citizenship status discrimination premised on disparate treatment rises to the level of a pattern or practice of discrimination when the offending practice "was the company's standard operating procedure," Townsend Culinary, 8 OCAHO at 505 (citing Intl Bhd. of Teamsters, 431 U.S. at 336, or the practices amounted to "regular, repeated and intentional activities, [and not] isolated, sporadic or accidental acts," id. Here, the Complaint alleges that these additional burdens were the result of a standard policy that distinguished between newly hired employees who are U.S. citizens and those who are not, based solely on their citizenship status, thereby permitting the plausible inference that Respondent engaged in a pattern or practice of discrimination in its documentary practices, as asserted in Count I, and a pattern or practice of discrimiriation in its hiring process, as asserted in Count II. B. The United States Has Alleged That Respondent's Adverse Actions Against Non- Citizen Employees Were Based on a Protected Characteristic Respondent claims that the United States' allegations regarding the Form do not support an inference that Respondent's actions "can specifically be traced to the protected characteristic itself." Motion at 9. Relying on Diversified, 9 OCAHO no. 1095, Respondent states that such allegations are a "proxy" for citizenship discrimination, and that "none of the factual allegations concerning the Charging Party suggest that his failure to obtain employment was based upon his citizenship rather than his refusal to produce the requested document." Id. Respondent's 7

8 reliance on Diversified is misguided. 5 Contrary to the facts at play in Diversified, this case presents a facially discriminatory policy that distinguishes between employees based solely on their citizenship status. Specifically, the United States alleges that, since at least 2008, Respondent instituted a policy requiring additional documentation only from non-citizens for the purpose of employment eligibility verification. Compl. TT 30, 37. And, where the individual did not comply with the policy, such as the Charging Party, the individual was not permitted to work. Compl. TT By its terms, only non-citizens were subjected to the policy, and the adverse action taken as a result of the Charging Party's inability to comply with the policy can be specifically traced to his status as a non-citizen. Such an intentional policy of treating noncitizens less favorably based only on their status as non-citizens is not analogous with the actions of the employer in Diversified. Therefore, Diversified is inapposite to the case at bar. C. The United States Is Not Required to Allege That an Individual Was Burdened or Impeded in the Hiring Process to Plead Intentional Discrimination The Supreme Court has held there is no requirement to demonstrate injury in order to establish liability in a pattern or practice case. In International Brotherhood of Teamsters, a case brought pursuant to Title VII, 42 U.S.C. 2000e et seq., the Court explained that: [t]he plaintiff in a pattern-or-practice action is the Government, and its initial burden is to demonstrate that unlawful discrimination has been a regular procedure or policy followed by an employer or group of employers. At the initial, "liability" stage of a pattern-or-practice suit the Government is not required to offer evidence that each person for whom it will ultimately seek relief was a victim of the employer's discriminatory policy. Its burden is to establish a prima facie case that such a policy existed. 5 In Diversified, which arose in the Fourth Circuit, this Court found no evidence that the employer had a policy of singling out individuals on the basis of citizenship status in the employment eligibility verification process. Diversified, 9 OCAHO at 21. The Court, after finding that the Form 1-9 and Publication M-274 contained outdated guidance on the proper treatment of documents rejected by the employer, held that the employer's rejection of documents was not based on citizenship status. Id. at 10, 22, 23. 8

9 431 U.S. 324, 360 (1977 (internal citations omitted (emphasis added. In the context of the intentional discrimination requirement of 8 U.S.C. 1324b, the Ninth Circuit rejected the notion that a claim of intentional discrimination must be accompanied by factual allegations of a burden or impediment to the worker. In Robison, it opined that "an employer might well be guilty of discrimination by creating unnecessary and discriminatory obstacles to hiring, regardless of whether the applicants are able to surmount them." 146 F.3d at 802 (emphasis added. OCAHO case law has similarly held that the element of "injury" is not required to establish a violation of 8 U.S.C. 1324b(a(6. United States v. Zabala Vineyards, 6 OCAHO no. 830, 72, 74 (1995 ("[T]o establish liability [under 1324b(a(6], it is not necessary that employees who are discriminated against experience injury.... It is not critical... that job applicants interviewed by an employer are hired.". Assuming arguendo that some injury must be pleaded in a pattern or practice action, the United States has alleged that Respondent's non-citizen hires were burdened by Respondent's requirement to submit additional and specific documentation based solely on their citizenship status, and that the Charging Party was denied employment after he failed to do so. 6 Compl , 26-32; see Robison, 146 F.3d at 802 ("An employer who requires aliens to provide documentation not requested of citizens makes it more difficult for aliens to fill out the Form 1-9 or to comply with its provisions." (emphasis added. Accordingly, Respondent raises no valid arguments warranting dismissal of this action. 6 Respondent acknowledges this in its Motion. Motion at 9. 9

10 IV. CONCLUSION For the foregoing reasons, Complainant requests that the Court enter an order denying Respondent's Motion for Judgment on the Pleadings. Respectfully submitted, FOR COMPLAINANT UNITED STATES OF AMERICA: KATHERINE A. BALDWIN Deputy Special Counsel ELIZABETH I. HACK Special Litigation Counsel JENNIFER DEINES RONALD LEE Trial Attorneys U.S. Department of Justice Civil Rights Division Office of Special Counsel for Immigration- Related Unfair Employment Practices 950 Pennsylvania Ave., N.W. Washington, DC Telephone: ( Facsimile: ( December 3,

11 DEPARTM7NT r1f.justice UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIIMO DEC -6 PH 2: 15 OFFICE OF THE CHIEF ADMINISTRATIVE HEARING OCHFIFEIFCIEDRmiwsTprt,,, i4p4 UNITED STATES OF AMERICA, COMPLAINANT, v. MARICOPA COUNTY COMMUNITY COLLEGE DISTRICT D/B/A MARICOPA COMMUNITY COLLEGES, 8 U.S.C. 1324b PROCEEDING OCAHO CASE NO. 10B00099 RESPONDENT. CERTIFICATE OF SERVICE I hereby certify that United States' Response to Maricopa Community College District's Motion for Judgment on the Pleadings was served via facsimile and certified mail this 3rd day of December, 2010, to the following at the address indicated: JOSEPH T. CLEES THOMAS D. ARN LEAH S. FREED Ogletree, Deakins, Nash, Smoak & Stewart, P.C. Esplanade Center III 2415 East Camelback Road, Suite 800 Phoenix, AZ RONALD LEE Date: December 3, 2010