UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW OFFICE OF THE CHIEF ADMINISTRATIVE HEARING OFFICER May 3, 2012 UNITED STATES OF AMERICA, ) Complainant, ) ) v. ) ) LIFE GENERATIONS HEALTHCARE, LLC, ) D/B/A GENERATIONS HEALTHCARE, ) Respondent. ) ) 8 U.S.C. 1324b Proceeding OCAHO Case No. 11B00136 ORDER DENYING THE GOVERNMENT'S MOTION TO EXTEND DISCOVERY DEADLINE I. BACKGROUND AND PROCEDURAL HISTORY A. The Parties and the Nature of the Case This is an action arising under the nondiscrimination provisions of the Immigration and Nationality Act (INA), as amended by the Immigration Reform and Control Act of 1986 (IRCA), 8 U.S.C. 1324a (2006), in which the United States is the complainant and Life Generations Healthcare LLC d/b/a Generations Healthcare (Generations or the company) is the respondent. Generations is a healthcare provider that manages and supports assisted living and skilled nursing facilities throughout California. The company manages a total of 18 facilities, including a facility known as St. Francis Convalescent Pavilion (St. Francis), a skilled nursing facility in Daly City, California. The record reflects that (b) (6) r charging party) applied for employment with St. Francis on or about August 25, 2009 and February 23, 2010. According to the Office of Special Counsel (OSC), (b) (6) completed an employment application on February 23, 2010, after which a human resources officer asked her for her work authorization papers, and she provided them. The human resources officer, according to OSC, then told (b) (6) she would not be employed because the valid, unexpired employment authorization document she presented had a future expiration date.
(b) (6) filed a charge with OSC on June 25, 2010, alleging that Generations discriminated against her on the basis of national origin by refusing to accept a valid work authorization document. B. OSC's Pre-Complaint Investigation According to the declaration of Teresa Green, Generations' Director of Human Resources/Risk Management, OSC initiated its investigation of the company on July 6, 2010 by requesting various information regarding (b) (6) and St. Francis. Declarations filed in this matter assert that during the administrative investigation Life Generations complied with numerous requests from OSC, including: (1) providing almost 1,500 pages of I-9 forms and other documents on August 3, 2010 in response to a request made on July 6; (2) permitting two St. Francis employees, (b) (6) to be interviewed by telephone on September 23, 2010, the cumulative time for which took almost one work day; (3) providing OSC with a list on or around September 29, 2010 of every person employed at St. Francis since January 1, 2008, totaling 212 employees and including their addresses and telephone numbers, in response to a request made on September 28; (4) providing OSC with requested information and documents regarding Generations' Human Resources Support Center on November 23, 2010 in response to a request made on November 16; (5) permitting OSC to interview four employees of Generations' Human Resources Support Center, including Teresa Green, on November 30, 2010; (6) providing OSC with a list of the 18 facilities operated by Generations and the total number of employees at each facility on or around December 7, 2010 in response to a request made that same day; 2 (7) providing OSC with over 2,300 1-9 documents and contact information for approximately 700 current and former employees on December 17, 2010, in response to a request made on December 8 for a copy of all the 1-9 forms for four facilities selected by OSC and a roster of every person employed at those facilities, including employee name, address, phone number, hire date, termination date, and position;
3 (8) permitting an OSC attorney to conduct telephone interviews of the employees in charge of completing 1-9 forms at two of Generations' facilities on March 22 and 23, 2011; and (9) permitting two OSC attorneys to visit St. Francis and one other facility on September 27 and 28, 2011, spending about one-half day at each facility. C. The Statutory Period for Filing Complaints The statutory period within which complaints are to be filed is provided by 8 U.S.C. 1324b(d)(1). OSC is given 120 days from the date of receipt of the charge in which to investigate and determine whether or not it will bring a complaint with respect to that charge. At the conclusion of this period, if OSC has not yet determined if it will bring a complaint, it must notify the charging party that he or she may file a complaint directly with OCAHO within 90 days of receipt of OSC's letter. 8 U.S.C. 1324b(d)(2). OSC may continue its investigation during this 90-day period and may file its own complaint with OCAHO within the same time period. 8 U.S.C. 1324b(d)(2). OSC says that it informed the charging party by letter dated October 25, 2010 that she had the right to file a complaint with OCAHO, and she received the letter on November 3, 2010. The deadline for filing a complaint was thus February 1, 2011. OSC and Generations evidently entered several agreements to extend this filing deadline. The exact number of such agreements is unclear and not all the agreements were necessarily in writing. The last written agreement was signed on July 29, 2011, and extended the time for filing a complaint until October 1, 2011, a total extension of eight months. The declaration of Teresa Green says that Generations agreed to two previous tolling agreements, the first until May 1, 2011 and the second until August 1, 2011. The government also refers to a "series of agreements," of which the July 29, 2011 agreement was evidently the last before the complaint was filed. D. The Complaint and Post-Complaint Discovery OSC filed a three-count complaint with OCAHO on September 30, 2011 in which it alleged that Generations discriminated against (b) (6) and other foreign-born work-authorized individuals based on their citizenship status and/or national origin by requiring them to produce more or different documents to establish identity and work authorization, or refusing to honor documents tendered that on their face reasonably appeared to be genuine. OSC also alleged that the company engaged in a pattern or practice of document abuse against foreign-born workauthorized individuals since at least January 1, 2008 by requesting specific documents or by requesting more or different documents.
4 Generations filed an answer denying the material allegations and raising multiple affirmative defenses. OSC filed a proposed discovery plan on December 20, 2011, in which it requested the close of fact discovery to be April 15, 2012. A telephonic prehearing conference was held during which it was determined that the parties would submit their joint proposed schedule by January 19, 2012. On January 13, 2012, the parties submitted their joint discovery schedule, in which the fact discovery deadline remained April 15, 2012, with subsequent dates for the close of expert discovery and filing of dispositive motions. An order approving the joint discovery schedule was issued on January 25, 2012. The parties agreed that material provided by the company during OSC's investigation did not need to be resupplied during discovery. OSC thereafter issued three sets of requests for production of documents, for a total of 29 requests, one set of 20 requests for admissions and one set of 5 interrogatories. OSC served both its first request for production of documents and its request for admissions on December 21, 2011, making responses due January 20, 2012. 1 OSC issued its second request for production of documents on January 26, 2012, with responses due on February 25, 2012, and its third request for production of documents and its first set of interrogatories on March 15, 2012, with responses due April 14, 2012. On March 26, 2012, OSC filed a motion to extend the discovery schedule, requesting a threemonth extension of the close of fact discovery, from April 15 to July 15, 2012. Generations filed its response in opposition and the motion is ripe for decision. No motions to compel have been filed and there is no indication that responses to the interrogatories and third requests for production of documents have not been satisfied. II. THE POSITIONS OF THE PARTIES A. OSC's Motion OSC requests an extension of fact discovery because of what it characterizes as additional discovery needs and unanticipated delays. The government says it is possible that it will need additional time to issue follow-up discovery after it receives responses to its most recent requests as there may be "gaps or incomplete areas," or the responses may lead to new areas of inquiry. OSC also expected to depose one more employee in early April,' the fourth and final planned Responses are due within 30 days after service of the interrogatory or request. 28 C.F.R. 68.19(b), 68.20(d), 68.21(b). 2 The deposition of this employee was rescheduled from late February 2012 due to an emergency.
deposition, which OSC said could also lead to additional areas of inquiry. OSC asserts it needs the additional information to be obtained in order to determine the nature and scope of Generations' allegedly abusive documentary practices and to look for leads into other possible victims. The government says that out of 30 3 requests it made for production of documents, Generations has provided material relevant to only one item during the discovery time period, and that "unanticipated delays" necessitate additional time for discovery. The government also says it will need time to review the information it receives because even if the company answers all the outstanding discovery requests, OSC will not receive this information until one day prior to the close of fact discovery. B. Generations' Opposition Generations asserts that OSC has failed to establish good cause for an extension of discovery, as 1) Generations has fully complied with all its discovery obligations, 2) OSC's procrastination does not amount to good cause, 3) discovery as to the only legal issues in this case has been completed, and 4) a fishing expedition does not constitute good cause. 5 The company says it already produced almost 4,000 1-9 related documents during the OSC investigation, with another approximately 1,000 1-9 related documents produced during discovery in this matter and that it is complying with all its discovery obligations. It says OSC's failure to timely propound discovery requests and diligently prosecute its case does not equate to good cause, and that any delay has been caused by OSC. In response to OSC's assertion that it needs time to review the responses it receives, Generations points out that the subject matter of the government's third set of discovery requests all involve things OSC has known about for months. The company says that the last-minute nature of the requests is inexcusable. III. EVIDENCE SUBMITTED A. Exhibits Accompanying OSC's Motion OSC's motion was accompanied by Attachments A) Complainant's First Request for Production of Documents (3 pp.) and Complainant's First Request for Admissions (5 pp.); B) Response to Complainant's First Request for Production of Documents (6 pp.) and Respondent's Response to Complainant's First Request for Admissions (10 pp.); C) Complainant's Second Request for Production of Documents (4 pp.); D) Response to Complainant's Second Request for Production of Documents (8 pp.); E) Complainant's Third Request for Production of Documents (5 pp.) and Complainant's First Set of Interrogatories (8 pp.). 3 The discrepancy in the numbers is a result of the fact that the third set of the requests are enumerated as 1-17, but no. 14 was omitted.
B. Exhibits Accompanying Generations' Response 6 Generations' response was accompanied by the Declaration of Teresa Green signed April 2, 2012 (3 pp.); Declaration of Maria Z. Stearns signed April 2, 2012 (5 pp.); Exhibits A-1) email from OSC to Generations dated December 2, 2011 enclosing draft joint discovery plan (6 pp.); A-2) email exchange between OSC and Generations dated December 13-16, 2011 (2 pp.); A-3) email message from OSC to Generations dated December 20, 2011 enclosing draft (3 pp.); A-4) email exchange between OSC and Generations dated December 20-21, 2011 enclosing hand written edits to draft joint discovery plan (3 pp.); A-5) email message from Generations to OSC dated January 2, 2012 (2 pp.); A-6) email exchange between OSC and Generations dated January 4, 2012 (2 pp.); A-7) email message from Generations to OSC dated January 6, 2012; A-8) email message from Generations to OSC dated January 10, 2012; A-9) email exchange between OSC and Generations dated January 6-11, 2012 (7 pp.); B) numerous email messages between OSC and Generations dated December 22-28, 2011 with hand written underlinings (4 pp.); C) email exchange between OSC and Generations dated March 23, 2012; D) numerous email messages dated October 6, 2011-January 23, 2012 between OSC and Generations (6 pp.). In addition to the materials submitted by the parties in connection with the pending motion I have also considered the record as a whole, including pleadings, exhibits, and all other materials of record. IV. DISCUSSION The government's assertions about additional discovery and possible "gaps or incomplete areas," in its discovery are sufficiently opaque that they do not identify any specific discovery needed. While the government refers to "unanticipated delays" and points to the absence of responses to 30 requests, responses to the third set of requests were not even due until more than three weeks after the government filed its motion. The third set of requests, moreover, accounts for more than half the 30 responses the government said it was owed and there is no reason to assume the requests have not been satisfied. According to its responses, Life Generations produced 1160 pages of I-9s and supporting documents that were responsive to request no. 1 for I-9s during the OSC administrative investigation, and an additional 60 pages of employment applications responsive to request no. 2. It is reasonably clear that the reason the government seeks to extend discovery is that it wants more time to review the responses to the third set of discovery requests. Notwithstanding the liberality with which discovery is viewed in this forum, enough is enough. The record reflects that OSC has now been investigating this case for almost two years, far longer than is contemplated by 8 U.S.C. 1324b. With the consent of the company OSC entered a series of agreements to extend the complaint filing period well beyond the statutory time frames. The validity of private tolling agreements in administrative proceedings is the subject of some
7 conflict, 4 and even fewer cases have addressed the authority of a public agency to extend its own limitations periods. That question need not be resolved in order to conclude that there has already been sufficient time allocated for investigation and discovery in this matter and that good cause to extend the discovery deadline has not been shown. The motion to extend the close of discovery will therefore be denied. There is, however, one caveat. Because there has been no suggestion to the contrary, denial of the motion assumes that complete responses have been made to existing discovery requests. In particular, it appears that at the time the motion was filed there were still some outstanding matters from previous requests including some 1-9 forms and, perhaps more importantly, the applications of other unsuccessful candidates who applied during the time period of the charging party's two unsuccessful applications. Because OSC assumed that these outstanding discovery requests would be complied with, I do so as well. If this is not the case, a prompt motion to compel is invited. ORDER The motion to extend discovery deadline is denied. SO ORDERED. Dated and entered this 3rd day of May, 2012. Ellen K. Thomas Administrative Law Judge 4 Compare Hammond v. Citrix Systems, Inc., No. 2008-SOX-00037, 2008 WL 7835796, at *5-6 (Dep't of Labor, June 11, 2008) (approving private tolling agreements), with Szymonik v. Tymetrix, Inc., No. 2006-SOX-50, 2006 WL 3246848, at *4-5 (Dep't of Labor, Mar. 8 2006) (stating that allowing private parties to opt out of filing limitations would be contrary to congressional intent).
8 CERTIFICATE OF SERVICE I hereby certify that on this 3rd day of May, 2012, I have served copies of the foregoing Order Denying the Government's Motion to Extend Discovery Deadline on the following persons at the addresses indicated: U.S. Department of Justice Civil Rights Division Office of Special Counsel Attn: Seema Nanda, Acting Deputy Special Counsel 950 Pennsylvania Avenue, NW Washington, DC 20530 (b) (6) Phil Telfeyan, Esq. Trial Attorney U.S. Department of Justice Civil Rights Division Office of Special Counsel 950 Pennsylvania Avenue, NW Washington, DC 20530 Maria Z. Stearns, Senior Counsel Rutan & Tucker, LLP 611 Anton Boulevard, 14 th Floor Costa Mesa, CA 92626 tricia R. Boyd P. alegal Specialist to Ellen K. Thomas Administrative Law Judge Office of the Chief Administrative Hearing Officer 5107 Leesburg Pike, Suite 2519 Falls Church, VA 22041 (703) 305-1742 Phone (703) 305-1515 Fax