F I L E D
United States Court of Appeals
Tenth Circuit
PU BL ISH
February 26, 2007
UNITED STATES COURT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
R AM O N ZA M O RA ,
Plaintiff - Appellant,
v.
ELITE LOGISTICS, IN C.,
Defendant - Appellee.
_______________________________
K A N SA S H ISPA N IC & LA TINO
AM ERICAN AFFAIRS
COM M ISSION; HISPANIC
M IN ISTR Y FO R TH E
A RCHD IO CESE O F K A N SA S CITY,
KANSAS; EL CENTRO, IN C.;
A PO Y O TR AB AJA D O R D E
LAW RENCE/M IGR AN T W OR KER No. 04-3205
SOLIDA RITY O F LAW REN CE;
HARVEST AM ERICA
C ORPO RA TIO N ; N A TIO N A L
IM M IGR ATION LAW CENTER, EL
CENTRO , INC .; INTERFAITH
W OR KER JUSTICE;
IN TER NA TIO N A L B RO TH ER HOOD
OF TEAM STERS; KA NSAS CITY
W OR KER JUSTICE PROJECT;
LA BO RER S IN TER NA TIO N A L
U N IO N O F N O RTH A ME RIC A;
NA TION AL COU NC IL OF LA
RA ZA; SERVICE EM PLOYEES
INTERNA TION AL U NION ; UN ITED
FO O D A ND CO M M ER CIA L
W O RK ER’S U N IO N ,
Amici Curiae.
Appeal from the United States District Court
for the District of K ansas
(D.C. No. 03-CV-2230-JW L)
Christopher Ho, The Legal Aid Society-Employment Law Center, San Francisco,
California (W illiam N. Nguyen and Sharon Terman, The Legal Aid
Society-Employment Law Center, San Francisco, California, and Aldo Caller,
Law Offices of Aldo C. Caller, Shawnee M ission, Kansas, with him on the
briefs), for Plaintiff-A ppellant Ramon Zamora.
Ryan B. Denk (Carl A. Gallagher, with him on the briefs), M cAnany, Van Cleave
& Phillips, P.A., Kansas City, Kansas, for Defendant-Appellee Elite Logistics,
Inc.
M arielena Hincapie, National Immigration Law Center, Los Angeles, California,
on the brief for A mici Curiae National Immigration Law Center; El Centro, Inc.;
Harvest America Corporation; Interfaith W orker Justice; International
Brotherhood of Teamsters; Kansas C ity W orker Justice Project; Laborers
International Union of North America; National Council of La Raza; Service
Employees International Union; U nited Food and Commercial W orkers Union.
Before TA CH A, Chief Judge, HOLLOW AY, EBEL, KELLY, HENRY,
BR ISC OE, L UC ER O, M U RPH Y, HA RTZ, O’BRIEN, M cCO NNELL,
T YM K O VIC H, GOR SU C H, and HO LM ES, Circuit Judges.
EBEL, Circuit Judge.
Plaintiff-Appellant Ramon Zamora sued his former employer,
Defendant-Appellee Elite Logistics, Incorporated (“Elite”), under Title VII of the
Civil Rights Act, alleging Elite discriminated against Zamora because of his race
2
and national origin 1) by suspending Zamora from work until he presented
documentation establishing his right to work in the United States; and 2) then,
after reinstating Zamora, firing him after he requested an apology. The district
court granted Elite summary judgment on both claims. See Zamora v. Elite
Logistics, Inc., 316 F. Supp. 2d 1107 (D. Kan. 2004). A divided panel of this
court reversed that decision. See Zamora v. Elite Logistics, Inc., 449 F.3d 1106
(10th Cir. 2006). After rehearing this appeal en banc, this court VACATES the
panel’s decision. See 10th Cir. R. 35.6. As to Zamora’s first claim involving
Zamora’s suspension, because the en banc court is evenly divided, we simply
AFFIRM the district court’s decision granting Elite summary judgment. 1 As to
the second claim involving Zamora’s termination, a majority of this court
AFFIRM S summary judgment in Elite’s favor. 2
I. B ACKGR OU N D
Viewing the evidence in the light most favorable to Zamora, see M etzler v.
Fed. Home Loan Bank, 464 F.3d 1164, 1166 n.1 (10th Cir. 2006), the evidence in
the record established the following: Elite operates a grocery warehouse in
Kansas City, Kansas. In June 2000, Elite needed to hire an additional 300
1
Judges Tacha, Kelly, Hartz, O’Brien, M cConnell, Tymkovich and Gorsuch
vote to AFFIRM on the suspension claim. Judges Holloway, Ebel, Henry,
Briscoe, Lucero, M urphy and Holmes vote to REVERSE.
2
Judges Tacha, Ebel, Kelly, Hartz, O’Brien, M cConnell, Tymkovich,
Gorsuch and Holmes vote to AFFIRM on the termination claim.
3
workers in just a few weeks’ time. In doing so, Elite failed to verify that all of its
new employees were authorized to work in the United States.
A year later, in August 2001, Elite hired Zamora. At that time, Zamora was
a M exican citizen who had been a permanent legal resident of the United States
since 1987. As part of the hiring process and in compliance with the Immigration
Reform and Control Act of 1986 (“IRCA”), Zamora showed Elite his social
security card, which he had had since 1980 or 1981, and his alien registration
card. Zamora also filled out an I-9 form truthfully indicating that he was a
M exican citizen and a lawful permanent resident of the United States.
Four months after hiring Zamora, in D ecember 2001, Elite received a tip
that the Immigration and Naturalization Service (IN S) 3 was going to investigate
warehouses in the area. Elite was particularly concerned about such an
investigation in light of its earlier hiring practices in June 2000. Elite, therefore,
hired two independent contractors to check the social security numbers of all 650
Elite employees. This investigation indicated that someone other than Zamora
had been using the same social security number that he was using. 4 The
3
The INS no longer exists. In M arch 2003, its duties were transferred to the
Department of Homeland Security. Yerkovich v. Ashcroft, 381 F.3d 990, 991 n.2
(10th Cir. 2004).
4
In January 2002, one of the independent contractors, Datasource, reported
to Elite that a M anuel Dominguez, while working in California, had used the same
social security number as Zamora. Elite then asked the second independent
contractor, Verifications, Inc., to recheck Zamora’s social security number. In
(continued...)
4
investigation turned up similar problems with thirty-five other employees’ social
security numbers.
On M ay 10, 2002, therefore, Elite’s human resources manager, Larry
Tucker, met specifically with Zamora and gave him an “Important M emorandum,”
written in Spanish and English, giving him ten days to produce adequate
documentation of his right to work in the United States. Tucker followed this
same procedure with the other thirty-five employees w hose social security
numbers raised concerns. 5 The memorandum Tucker gave Zamora and the other
affected workers read:
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 US Passport, a Certificate
of Citizenship or Naturalization; or with a combination of other
documents, such as a state’s driver’s license, state or federal ID card,
US 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 5:00 p.m. on M onday, M ay
4
(...continued)
M arch 2002, Verifications, Inc. reported to Elite that a M anuel Dominguez had
also used the same number to obtain credit.
5
M ost of these thirty-five employees, when asked for this documentation,
just quit. Only Zamora eventually provided paperw ork verifying his right to work
in the United States.
5
20, 2002, to the Department of Human Resources, or you may be
terminated.
Thank you.
At the bottom of this memorandum there was a place where Zamora indicated that
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
5:00 p.m. on M onday, M ay 20, 2002, to produce this documentation.
Zamora signed and dated that section of the memorandum. Zamora testified in
his deposition that he understood at that time that he needed to bring in a valid
social security card and documents establishing that he had a right to work in the
United States. Zamora continued working during this ten-day period.
Zamora did not present Elite with any of the requested documents by M ay
20, 2002. Therefore, Tucker again met with Zamora 6 and, according to Zamora,
Tucker told him that he could not “come to work anymore until you got a
different Social Security number.” Zamora left Tucker’s office and returned that
same day with a document from the Social Security Administration showing wage
earnings for the years 1978-85 for an “R. Zamora” under Zamora’s social security
number. 7 This document had been mailed to an address in W ashington, which
6
Union steward Ray Puentes was at this meeting between Tucker and
Zamora and acted as a translator betw een the tw o.
7
Zamora testified at his deposition that he had had his social security
number only since 1980 or 1981. Yet this earnings statement showed wages
(continued...)
6
Zamora had scratched out and replaced with his then-current M issouri address.
M ore problematic, however, was that the date of birth for R. Zamora on this
earnings statement was different than the date of birth Ramon Zamora had given
Elite at the time Elite hired him. After reviewing the earnings statement, Tucker
became concerned that yet a third individual had been using Zamora’s social
security number. Therefore, Tucker informed Zamora that this earnings statement
was not “acceptable.” Neither was an INS document Zamora showed Tucker that
indicated that Zamora had previously applied to become a United States citizen.
At some point, Zamora also showed Tucker his naturalization certificate,
indicating that Zamora had in fact become a naturalized citizen of the United
States. But Tucker rejected that document as well.
The next day, M ay 23, Zamora brought Tucker a statement from the Social
Security Administration indicating that the social security number Zamora had
given Elite was in fact his number. Tucker then told Zamora that “[w]e will
check this out ourselves. And if it checks out, you can come back to work.”
Tucker’s assistant verified this document’s authenticity and then called Zamora,
asking him to return to work on M ay 29.
7
(...continued)
earned beginning in 1978. At his deposition, Zamora acknowledged that this
earnings information was incorrect, but explained that when he had obtained this
earning statement a few years earlier, he had then contacted the Social Security
Administration to correct this error.
7
On M ay 29, however, instead of returning to work, Zamora went to
Tucker’s office and handed him a letter stating that “[b]efore I could consider
going back to work I need from you two things: 1) an apology in w riting, and 2) a
complete explanation of why I was terminated. Please send a response to my
home.” Tucker refused to apologize. Tucker may then have told Zamora to get
out of Tucker’s office or the building, or to “[j]ust get the hell out.” A ccording to
Zamora, Tucker also told him he was fired.
Zamora sued Elite, alleging the company violated Title VII 8 by first
suspending and then firing Zamora because of his race and national origin. See
42 U.S.C. § 2000e-2(a)(1). The district court granted Elite summary judgment on
both claims. See Zamora, 316 F. Supp. 2d at 1119, 1121. Zamora appealed.
II. STANDA RD O F REVIEW
This court reviews summary judgment decisions de novo, viewing the
evidence in the light most favorable to the non-moving party; in this case, in
Zamora’s favor. See M etzler, 464 F.3d at 1166 n.1. Summary judgment is
appropriate only “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.” Fed. R. Civ. P. 56(c).
8
42 U.S.C. §§ 2000e to 2000e-17.
8
III. D ISC USSIO N
In alleging that Elite discriminated against him on the basis of his race and
national origin, Zamora challenges two separate incidents: 1) Elite’s suspending
Zamora from work until he was able to produce documentation establishing his
right to work in the U nited States; and 2) after Elite reinstated him, Elite’s
decision to fire Zamora after he requested an explanation and an apology. See
Zamora, 316 F. Supp. 2d at 1114.
A. Suspension
The district court granted Elite summary judgment on the suspension claim,
after applying M cDonnell Douglas’s burden-shifting analysis 9 and concluding that
Zamora had established a prima facie discrimination claim, but that Elite had
proffered a legitimate, nondiscriminatory reason for suspending Zamora, and
Zamora had failed to create a triable issue of fact as to whether or not Elite’s
proffered justification was merely a pretext for discrimination. See Zamora, 316
F. Supp. 2d at 1116-21. A divided panel of this court reversed that decision,
determining that Zamora had presented sufficient evidence to create a triable fact
as to whether Elite’s stated reason for requiring Zamora to produce this
documentation–that Elite was trying to avoid INS sanctions–was merely a pretext
for race and national origin discrimination. See Zamora, 449 F.3d at 1112-13.
9
M cD onnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973).
9
After rehearing en banc, this court is evenly divided on this issue. For that
reason, we simply VACATE the earlier panel opinion and AFFIRM the district
court’s decision granting Elite summary judgment on this claim. See Peoples v.
CCA Detention Ctrs., 449 F.3d 1097, 1099 (10th Cir.) (per curiam), cert. denied,
127 S. Ct. 664, 687 (2006); Zuni Pub. Sch. Dist. No. 89 v. United States Dep’t of
Educ., 437 F.3d 1289, 1290 (10th Cir.) (per curiam), cert. granted, 127 S. Ct. 36
(2006).
B. Termination
Zamora also alleged that Elite discriminated against him on the basis of his
race and national origin when Elite fired Zamora after he requested an apology.
See Zamora, 316 F. Supp. 2d at 1114, 1119. The district court granted summary
judgment to Elite on this claim, after concluding that Zamora had established a
prima facie discrimination claim, but that Elite had proffered a legitimate,
nondiscriminatory reason to fire him, and that Zamora had failed to assert
sufficient evidence to create a triable issue as to whether or not Elite’s proffered
reason was merely a pretext for discrimination. See id. at 1119-21. A majority of
the en banc court agrees.
For purposes of his appeal, we assume that Zamora did establish a prima
facie discrimination claim. See Annett v. Univ. of Kan., 371 F.3d 1233, 1235,
1237 (10th Cir. 2004) (assuming, without deciding, that plaintiff has established
prima facie retaliation claim actionable under Title VII); see also M cCowan v. All
10
Star M aintenance, Inc., 273 F.3d 917, 923 (10th Cir. 2001). Further, Zamora
concedes that Elite asserted a legitimate, nondiscriminatory reason for firing
Zamora–its human resources manager, Tucker, believed that Zamora would not
return to work unless Tucker apologized, and Tucker refused to apologize. Elite’s
proffered justification was sufficient for Elite to meet its “exceedingly light”
burden under M cDonnell Douglas and shift the burden back to Zamora to show
that Elite’s proffered justification was merely a pretext for race and national
origin discrimination. Goodwin v. Gen. M otors C orp., 275 F.3d 1005, 1013 (10th
Cir. 2002). “A plaintiff demonstrates pretext by showing either that a
discriminatory reason more likely motivated the employer or that the employer’s
proffered explanation is unworthy of credence.” Stinnett v. Safeway, Inc., 337
F.3d 1213, 1218 (10th Cir. 2003) (quotation omitted).
Zamora argues that Elite’s proffered reason for terminating Zamora was not
worthy of belief because Tucker could not have reasonably believed that Zamora
had actually conditioned his return to w ork on Zamora apologizing. “In
determ ining w hether the proffered reason for a decision was pretextual, we
examine the facts as they appear to the person making the decision.” W atts v.
City of Norman, 270 F.3d 1288, 1295 (10th Cir. 2001) (emphasis added;
quotations omitted); see also Kendrick v. Penske Transp. Servs., Inc., 220 F.3d
1220, 1231 (10th Cir. 2000). And the undisputed evidence in this case establishes
that, although Elite informed Zamora he could return to w ork on M ay 29, Zamora
11
did not return to work but instead went to Tucker’s office and gave him the letter.
And that letter specifically stated that “[b]efore 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.”
(Emphasis added). Further, because Zamora had asked that Tucker’s written
apology be sent to his home, Tucker could have reasonably believed that Zamora
was not going to return to work on M ay 29, as Elite had requested. Based upon
these undisputed facts known to Tucker, he could reasonably have believed that
Zamora was not going to return to work unless Tucker apologized. 10 See
Kendrick, 220 F.3d at 1230-32 (holding that, although there was a disputed issue
of fact as to whether or not the terminated employee had actually pushed his
supervisor, the terminated employee had failed to establish that this proffered
reason for his firing was a pretext for discrimination where the decisionmaker had
no evidence contradicting the report that the employee did push his supervisor);
10
At various places in the record, Zamora asserts that he would, and that he
would not, have returned to w ork even without Tucker’s apology. But Zamora’s
subjective intent is not relevant to the question of how the facts objectively
appeared to Tucker, as the decisionmaker. See W atts, 270 F.3d at 1295. “The
pertinent question in determining pretext is not whether the employer was
right . . . but whether that belief was genuine or pretextual.” Pastran v. K-M art
Corp., 210 F.3d 1201, 1206 (10th Cir. 2000). The district court actually
disregarded Zamora’s affidavit, filed after his deposition, indicating Zamora
would have continued working even without an apology. See Zamora, 316
F. Supp. 2d at 1113 n.4. This affidavit contradicted Zamora’s earlier deposition
testimony that he would not have returned to work without an apology.
12
Gearhart v. Sears, Roebuck & Co., 27 F. Supp. 2d 1263, 1276-77 (D. Kan. 1998)
(holding that, even if there was a disputed issue of fact as to whether or not the
employee intended to resign, summary judgment for the employer was appropriate
where the employer “reasonably believed that employee resigned, and employee
failed otherwise to offer sufficient evidence that employer’s asserted reason was
pretextual), aff’d, 194 F.3d 1320 (Table) (10th Cir. 1999) (unpublished).
Zamora argues that Tucker’s strong reaction to Zamora’s request for a
written apology and explanation indicates that his proffered reason for
terminating Zamora w as a pretext for his true discriminatory motive. Zamora
testified that when he gave Tucker the letter requesting a written explanation and
apology, Tucker grabbed it out of Zamora’s hand and told Zamora he was fired
“because [Tucker] was not apologizing to anybody.” But there is simply no
evidence in the record indicating that Tucker’s reaction was because Zamora was
a M exican-born Hispanic. In fact, the evidence indicates just the opposite. Once
Zamora provided Elite with documentation indicating that he w as eligible to w ork
in the United States, and that the social security number he w as using was his,
Tucker offered Zamora his job back. If Tucker was discriminating against
Zamora based upon his race or national origin, Tucker would not have reinstated
him. Cf. Antonio v. Sygma Network, Inc., 458 F.3d 1177, 1183 (10th Cir. 2006)
(holding “where the employee was hired and fired by the same person within a
relatively short time span, there is a strong inference that the employer’s stated
13
reason for acting against the employee is not pretextual;” noting, however, that an
employee can still “present countervailing evidence of pretext”) (quotation,
footnote omitted). There is nothing in the record to suggest that Tucker was not
going to permit Zamora to return to work on M ay 29; in fact, the undisputed
evidence indicates that Zamora could have returned to work that day. Under the
facts of this case, then, Tucker’s suspending Zamora and his later decision to
terminate Zamora’s employment must be viewed as discrete, separate events.
Tucker did not terminate Zamora until Zamora requested a written explanation
and apology as a condition for his returning to work. And even Zamora concedes
that Elite had no legal obligation to apologize. W e agree with that. Nor is there
any suggestion that Tucker had ever treated similarly situated employees who
were not Hispanic or M exican-born any differently. See generally Kendrick, 220
F.3d at 1230 (noting that one way an employee might prove pretext is to show
that the employer treated similarly situated employees differently). Because
Zamora failed to present sufficient evidence establishing a genuinely disputed
issue of fact as to w hether or not Elite’s proffered reason for firing Zamora was a
pretext for discrimination, summary judgment for Elite was w arranted on this
claim.
14
IV . C ON CLU SIO N
For the foregoing reasons, we VACATE the earlier panel decision, 449
F.3d 1106, and AFFIRM the district court’s decision granting Elite summary
judgment on both claims.
15
04-3205 - Zam ora v. Elite Logistics, Inc.
HA RTZ, Circuit Judge, concurring, joined by Tymkovich, Circuit Judge.
I join Judge Ebel’s opinion. I continue to believe that we should not apply
the framew ork of M cDonnell Douglas, 411 U.S. 792 (1973), to review a summary
judgment w hen the existence of a prima facie case is not disputed. See Wells v.
Colo. Dept. of Trans., 325 F.3d 1205, 1221-28 (10th Cir. 2003) (Hartz, J.,
concurring). Applying that framew ork is inconsistent with Supreme Court
authority, adds unnecessary complexity to the analysis, and is too likely to cause
us to reach a result contrary to what we would decide if we focused on “the
ultimate question of discrimination vel non.” U. S. Postal Serv. Bd. of Governors
v. Aikens, 460 U.S. 711, 714 (1983). Neither party, however, has suggested that
we not apply the M cDonnell Douglas framework, so this is not the appropriate
case to address the issue.
Zam ora v. Elite Logistics, 04-3205.
M cCO NNELL, Circuit Judge, concurring and concurring in the judgment, joined
by KELLY, O’BRIEN, and T YM KOVICH, Circuit Judges, joined by
G O R SU CH, Circuit Judge, except for the last paragraph of Section III, and
joined in Section V by HO LM ES, Circuit Judge.
Plaintiff Ramon Zamora presents two claims of employment discrimination,
both arising out of his employer’s efforts to ensure that every member of its
workforce was legally authorized to w ork in the U nited States. M r. Zamora’s
first claim relates to his three-day suspension, which occurred after M r. Zamora
failed to respond to the employer’s notice of apparent problems with his Social
Security number (“SSN ”). The suspension continued after he presented an
additional Social Security document containing yet another discrepancy— a birth
date different from the one he had earlier reported to the employer. M r. Zamora’s
second claim relates to his dismissal, which occurred after he obtained and
provided documentation from the Social Security Administration verifying his
SSN , but also demanded an apology before returning to work. The majority of
this Court holds that the second claim cannot survive summary judgment because
M r. Zamora failed to present any evidence suggesting the termination was
motivated by his national origin. I believe the same reason compels affirmance of
summary judgment on his suspension claim. I therefore concur in the result of
the equally-divided Court regarding this claim and write separately to explain my
reasons.
I.
B ecause this case arises on appeal from a grant of summary judgment, w e
must view the evidence in the light most favorable to the non-moving party, M r.
Zamora. That does not mean, however, that we may disregard undisputed
evidence that favors the moving party. The dissenting opinion depicts a hapless
employee repeatedly offering sound documentation of his work status, and just as
often being senselessly (or invidiously) rebuffed. That is scarcely a fair
description of what occurred.
In June 2000, Elite Logistics, Inc., (“Elite”) confronted a worker strike that
necessitated the rushed hiring of about three hundred replacement employees for
its Kansas Avenue grocery warehouse in Kansas City, Kansas. In the course of
this scramble, Elite failed to obtain from its new hires the employment eligibility
documentation required by the Immigration Reform and Control Act of 1986
(“IR CA”). See 8 U.S.C. § 1324a(b). In August 2001, after the crisis had passed
and normal hiring practices resumed, Elite hired M r. Zamora, who presented Elite
with his alien registration and Social Security cards and signed an I-9
Employment Eligibility Verification form, as required by IRCA. Zamora v. Elite
Logistics, Inc., 316 F.Supp.2d 1107, 1111 (D. Kan. 2004).
Four months later, in December 2001, Elite learned of a possible inspection
of the Kansas Avenue facility by the Immigration and Naturalization Service
(“INS”). Recognizing that its post-strike hiring frenzy might have compromised
-2-
Elite’s IRCA compliance, the company’s human resource manager, Larry Tucker,
decided to verify the Social Security numbers of every worker at the facility,
approximately 650 in total. M r. Tucker hired two independent agencies to
perform these verifications. Between January and M arch 2002, Elite received
reports that 35 to 40 employees had problems with their SSN s. These employees
included M r. Zamora, whose proffered SSN had previously been used by a
“M anuel Dominguez” for employment purposes in California in 1989, 1995, and
1997. Appellee’s App. at 94, 96. M r. Tucker resubmitted most or all the
problematic SSN s to a second company for rechecking. Tucker Dep. at 32–33,
42–44. 1 In M arch 2002, this second company reported that M anuel Dominguez
had used this number for credit purposes as recently as October, 2001. Zam ora,
316 F.Supp.2d at 1111; Appellee’s App. at 95, 97.
To each employee with a reported SSN problem, Elite issued a
memorandum explaining that federal law requires “all employees produce
documents, which establish their identity and/or employment eligibility to legally
work in the United States.” Appellant’s Supp. App. at 87. The memorandum
further explained that “[t]his eligibility can be established with a US Passport, a
Certificate of Citizenship or Naturalization; or with a combination of other
1
M r. Tucker’s deposition is found in the Appellant’s Supplemental
Appendix at pages 45–82. M r. Zamora’s deposition is found in the same
appendix at pages 30–44.
-3-
documents, such as a state driver’s license, state or federal ID card, US Social
Security card and/or a certified copy of a birth certificate, issued by a state of the
United States.” Id. The memorandum then informed each recipient that
documents previously provided by the employee were “questionable” and
requested that the employee provide “proper evidence of . . . identity and
employment eligibility.” Id. The memorandum issued to M r. Zamora warned that
such documentation must be provided by “5:00 p.m. on M onday, M ay 20, 2002 . .
. or you may be terminated.” Id. M r. Tucker provided M r. Zamora with this
memorandum on M ay 10, 2002. M r. Zamora signed the bottom portion of the
memorandum, attesting that “I understand and agree that until and if I provide
documents, which establish my identify and/or employment eligibility to legally
work in the United States, Elite Logistics may not be able to continue permitting
me to work.” Id.
M r. Tucker testified that of the thirty-five employees who received the
memorandum, most simply disappeared. Tucker D ep. at 36, 55. None but M r.
Zamora ever attempted to provide documentation. Id. at 36–37, 54–55.
At first, even M r. Zamora did not respond to the memorandum. On M ay
22, 2002— two days after the deadline specified for response— M r. Tucker
summoned M r. Zamora, along with M r. Zamora’s union steward (who also served
as a translator), to his office. At that meeting, M r. Tucker informed M r. Zamora
that he had failed to produce the requested documentation and suspended him
-4-
from employment until such documentation was forthcoming. The union steward
accused M r. Tucker of picking on Hispanic employees, an assertion that both M r.
Tucker and the district court assumed the steward translated on M r. Zamora’s
behalf. Id. at 58; Zam ora, 316 F.Supp.2d at 1112.
W hat happened next is the subject of some dispute among the parties, but
the district court characterized it as follow s:
On or about M ay 22, 2002, plaintiff brought M r. 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. M r.
Tucker became even further concerned about plaintiff’s SSN when he
noticed the different birth dates. M r. 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
IN S form provided a customer service number, but M r. Tucker did
not call that number.
Plaintiff testified in his deposition that on or about M ay 22,
2002, he presented M r. Tucker with his naturalization certificate and
told M r. Tucker he w as now a U nited States citizen. M r. 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 . M r. Tucker told plaintiff not to come to work until he
got a different SSN. Plaintiff testified in his deposition that he also
presented M r. Tucker with his social security card, that M r. Tucker
told him his SSN was stolen from someone else, and that M r. Tucker
treated him rudely in rejecting his documentation.
Zam ora, 316 F.Supp.2d at 1112–13. 2
2
The dissent claims that M r. Zamora presented his naturalization certificate
(continued...)
-5-
Elite contends that the record does not support M r. Zamora’s claim that he
presented M r. Tucker with a naturalization certificate. 3 Elite points out that no
such certificate appears in the record; the only document in the record regarding
2
(...continued)
at a meeting separate and apart from the meeting at which he presented the
questionable Social Security earnings report and naturalization interview notice.
Dissenting Op. at 6. The dissent does not explain the evidentiary basis for this
inference. Neither M r. Zamora nor M r. Tucker mentioned such a meeting in their
depositions.
3
M r. Tucker denied receiving a naturalization certificate from M r. Zamora.
As he described the relevant events, he called M r. Zamora into his office on M ay
22 to inform him that he could not continue working at Elite until he provided the
documentation requested on M ay 10. W hen asked whether M r. Zamora brought
any documents at that time, M r. Tucker responded: “Not right then.” Tucker Dep.
at 55.
M r. Tucker explained that M r. Zamora returned “either that day or the
next,” id. at 66, with (1) “documents that were issued by the Immigration and
Naturalization Service” showing that M r. Zamora had applied for naturalization,
and (2) Social Security wage records w hich “had the same social security number,
but it had a different birthdate than the one he was using,” id. at 61. It thus
appeared to M r. Tucker “as if even a third employee or a third individual may
have been using that number.” Id. W hen asked whether M r. Zamora brought any
other documents during that visit, M r. Tucker responded: “It is my recollection
that this is all he presented me w ith.” Id. at 66.
M r. Tucker testified that his next interaction with M r. Zamora occurred
when the latter brought in a document stamped by the Social Security
Administration (discussed infra). W hen asked whether M r. Zamora “brought any
additional documents” to that meeting, M r. Tucker responded: “I do not recall.”
Id. at 69.
W hen M r. Zamora’s attorney directly questioned M r. Tucker about the
naturalization certificate, the following exchange ensued:
Q. Okay. Do you recall if [M r. Zamora] ever brought to you a certificate
of naturalization?
A. He did not.
Q. You recall that he did not?
A. Yes sir.
Id. at 90–91.
-6-
M r. Zamora’s naturalization, marked Exhibit 6, is an INS notice addressed to M r.
Zamora instructing him to attend a hearing on his application for naturalization.
Appellant’s Supp. App. at 88. M r. Zamora did, however, testify in his deposition
that he presented a naturalization certificate to M r. Tucker. Zamora Dep. at 42.
Because this Court must view the evidence in the light most favorable to the
nonmoving party, and because a party’s deposition testimony, even if
uncorroborated by relevant documents, counts as evidence, we must assume for
purposes of this appeal that M r. Zamora presented a naturalization certificate to
M r. Tucker. However, nothing in the record suggests— and, therefore, we need
not assume— that the naturalization certificate ameliorated M r. Tucker’s concerns
about the problems with M r. Zamora’s SSN. Indeed, so far as the record reveals,
Social Security numbers do not appear on naturalization certificates, and when
asked whether his SSN appeared on the “citizenship papers” he presented to M r.
Tucker, M r. Zamora responded: “I don’t think so. I can’t remember. No, I don’t
think so.” Id. at 11–12.
M r. Zamora returned the day following his suspension with a document
from the Social Security Administration (“SSA”), dated M ay 23, 2002. This
document stated that M r. Zamora’s SSN was assigned to an individual named
“Ramon Zamora Farias,” which corresponded with the name M r. Zamora provided
to Elite when originally hired. M r. Tucker instructed his secretary to verify this
documentation with the SSA and to summon M r. Zamora back to work if it
-7-
checked out. The document did check out and, on M ay 25, M r. Tucker’s
secretary called M r. Zamora and asked him to return to work. Zam ora, 316
F.Supp.2d 1113. The suspension thus lasted about three days.
On or about M ay 29, M r. Zamora returned to Elite and handed M r. Tucker a
letter written in English and typed at the office of his attorney. Zamora Dep. at
13. It stated: “B efore 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.” Appellant’s Supp. App. at 101. M r. Tucker testified that he
considered this a voluntary resignation. Tucker Dep. at 82. M r. Zamora testified
that M r. Tucker grabbed the letter, stated that he would fire M r. Zamora rather
than give an explanation, and told M r. Zamora he was fired. Zamora Dep. at
34–36. M r. Tucker admitted that he might have told M r. Zamora to “just get the
hell out.” Tucker Dep. at 96.
II.
M r. Zamora has sued under Title VII of the Civil Rights Act of 1964, which
makes it unlawful “for an employer . . . to fail or refuse to hire or to discharge
any individual, or otherwise discriminate against any individual with respect to
his compensation, terms, conditions, or privileges of employment, because of
such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. §
2000e-2(a)(1). Title VII cases are funneled through the oft-repeated M cDonnell
Douglas burden-shifting framework. See McDonnell Douglas Corp. v. Green,
-8-
411 U.S. 792 (1973). 4 Under this formula, a Title VII plaintiff first must
establish a prima facie case of discrimination— a burden so light that only the
most baseless of claims fails to satisfy it. 5 The heavy lifting of proving and
defending a Title VII case occurs in the later stages of the M cDonnell Douglas
analysis.
After a plaintiff has established a prima facie case, the burden “shift[s] to
the employer to articulate some legitimate, nondiscriminatory reason for the
employee’s rejection.” M cDonnell Douglas, 411 U.S. at 802. If the employer
does so, the burden shifts back to the plaintiff to show that the proffered reason is
4
Judge Hartz offers arguments against employing the M cDonnell Douglas
framew ork in the summary judgment context. Those arguments were not made by
any party and have not received the consideration of the en banc court. Nothing
in the opinions in this case should be interpreted as precluding parties in future
cases from litigating the issues Judge Hartz raises.
5
In a discriminatory discharge case, all a plaintiff must show is: (1) he
belongs to a protected class; (2) he was qualified for his job; (3) despite his
qualifications, he was discharged; and, (4) the job was not eliminated after his
discharge. English v. Colo. Dept. of Corrections, 248 F.3d 1002, 1008 (10th Cir.
2001). This Circuit has held that the requirements for a prima facie case in a
discriminatory suspension case are different than those for a discriminatory
discharge case, a difference that perhaps gives the first step of the M cDonnell
Douglas framew ork a bit more bite in the former context. A plaintiff attempting
to prove discriminatory suspension must show that (1) he belongs to a protected
class, (2) he suffered an adverse employment action, and (3) “the adverse
employment action occurred under circumstances giving rise to an inference of
discrimination.” Hysten v. Burlington N. & Santa Fe Ry. Co., 296 F.3d 1177,
1181 (10th Cir. 2002). Although the posture of this case demands that we analyze
the evidence under the later stages of the M cDonnell Douglas framework, with
regard to M r. Zamora’s first claim, it is not clear that he presented enough
evidence to pass even this first step.
-9-
pretextual. One w ay a plaintiff can do so is by demonstrating “‘such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in the
employer’s proffered legitimate reasons for its action that a reasonable factfinder
could rationally find them unw orthy of credence and hence infer that the
employer did not act for the asserted non-discriminatory reasons.’” Danville v.
Reg’l Lab Corp., 292 F.3d 1246, 1250 (10th Cir. 2002) (quoting M organ v. Hilti,
Inc., 108 F.3d 1319, 1323 (10th Cir. 1997)). W hen analyzing this type of
evidence, it must be kept in mind that the purpose of the M cDonnell Douglas
framework is to ferret out discrimination where direct evidence of such is lacking.
The framew ork allows a factfinder to draw reasonable inferences from
circumstantial evidence. As the Supreme Court has explained, “[i]n appropriate
circumstances, the trier of fact can reasonably infer from the falsity of the
explanation that the employer is dissembling to cover up a discriminatory
purpose.” Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 147
(2000). “Thus, a plaintiff’s prima facie case, combined with sufficient evidence
to find that the employer’s asserted justification is false, may permit the trier of
fact to conclude that the employer unlawfully discriminated.” Id. at 148.
But not all evidence of pretext is sufficient to propel a case past a summary
judgment challenge. Some circumstantial evidence simply does not provide
enough proof to allow a reasonable factfinder to draw an inference of
discrimination. As the Reeves Court cautioned:
-10-
This is not to say that such a showing by the plaintiff will always be
adequate to sustain a jury’s finding of liability. Certainly there will
be instances where, although the plaintiff has established a prima
facie case and set forth sufficient evidence to reject the defendant’s
explanation, no rational factfinder could conclude that the action was
discriminatory. For instance, an employer would be entitled to
judgment as a matter of law if the record conclusively revealed some
other, nondiscriminatory reason for the employer’s decision, or if the
plaintiff created only a weak issue of fact as to whether the
employer’s reason was untrue and there was abundant and
uncontroverted independent evidence that no discrimination had
occurred . . . . To hold otherwise would be effectively to insulate an
entire category of employment discrimination cases from review
under Rule 50, and we have reiterated that trial courts should not
treat discrimination differently from other ultimate questions of fact.
Id. at 148 (internal citations and quotation marks omitted). In other words,
although the M cDonnell Douglas framew ork aids in the analysis of a Title VII
suit, it is not meant to alter the purpose of Title VII, nor does it insulate an
insufficient case from summary judgment, nor does it change what a plaintiff is
required to show in proving a violation of Title VII— namely, discrimination. A s
the Supreme Court stated in M cDonnell Douglas itself, the purpose of Title VII is
“to assure equality of employment opportunities and to eliminate those
discriminatory practices and devices which have fostered racially stratified job
environments to the disadvantage of minority citizens.” M cDonnell Douglas
Corp., 411 U.S. at 800. Title VII is not meant to protect an employee’s job
simply “‘because he is a member of a minority group. Discriminatory preference
for any group, minority or majority, is precisely and only what Congress has
-11-
proscribed.’” Id. (quoting Griggs v. Duke Power Co., 401 U.S. 424, 430–31
(1971)). Thus, the M cDonnell Douglas framework should not be applied in a
manner that renders it nothing more than an empty pleading formula, allowing
every allegation of employer discrimination to get to a jury. The touchstone of
the inquiry is whether a reasonable jury could find discrimination. If not, the
claim cannot survive a motion for summary judgment.
III.
Elite claims that its reason for demanding additional documentation from
M r. Zamora was a good faith— even if flawed— attempt to comply with the
Im migration R eform and C ontrol Act of 1986. IRCA is relevant here in two
respects. First, the statute prohibits the knowing employment of unauthorized
aliens and places affirmative burdens on employers to verify the identity and
employment eligibility of employees, at the hiring stage, by examining certain
documents specified by statute and regulation. See 8 U.S.C. §§
1324a(a)(1)(A )–(B), 1324a(b); 8 C.F.R. § 274a.2(b)(1)(ii) & (v). The statute
provides that, at the time of initial hiring, compliance “in good faith with the[se]
requirements . . . with respect to the hiring . . . for employment of an alien in the
United States . . . establish[es] an affirmative defense that [the employer] has not
violated” the above provisions. 8 U.S.C. § 1324a(3). IRCA also makes it
unlawful for an employer “to continue to employ [an] alien in the United States
knowing the alien is (or has become) an unauthorized alien with respect to such
-12-
employment.” Id. § 1324a(a)(2). It is this latter obligation— combined with the
range of civil and criminal penalties that await employers who violate IRCA, see
id. § 1324a(e)–(f)— that Elite claims prompted its actions in this case.
Second, IRCA has created employer incentives to protect against the
significant disruption that may occur when immigration enforcement agents
inspect a workplace and find workers out of compliance. As the then-Acting
Deputy Director of United States Citizenship and Immigration Services
(“USCIS”) explained in recent congressional testimony:
[O ]ne of the primary reasons for a human resources manager to push
participation in [a voluntary program for employee verification] was
to avoid that moment when the INS w ould come in and raid the place
and take away half the workers, and make it impossible to make any
kind of production. That’s the kind of event that gets the human
resources manager fired, and that’s the kind of event that they would
try to plan against. 6
6
Indeed, M r. Tucker enunciated a concern very similar to this in explaining
why he staggered distribution of the memoranda alerting employees of their
reported SSN discrepancies:
[W ]e knew that once we started calling these people in, not only they
but others that may have had social security numbers that checked
out would leave the work force and that if we had a large group of
warehouse employees leave at one time, it would have been
disruptive. So w e set up— originally I was going to call five
individuals in each week. But the first week, the first five I called
in, they and about five other guys just disappeared the next day. So
we slowed the process down to where we were doing like two to
three every other week or so.
Tucker Dep. at 37–38.
-13-
Immigrant Employment Verification and Small Business: Hearing Before the
Subcomm. on Workforce, Empowerment, & Gov’t Programs of the H. Comm. on
Sm all Business, 109th Cong. (2006) [hereinafter Verification Hearing] (statement
of Robert Divine, Acting Deputy Director, USCIS, Department of Homeland
Security). As recent events around the country illustrate, this is not an obligation
that employers can afford to take lightly. 7
One of the principal methods of ensuring employee eligibility is
verification of Social Security numbers. Indeed, this is the key feature of the
federal government’s Basic Pilot Program— a voluntary employment eligibility
verification system created by Congress in 1997. 8 Employers w ho participate in
7
On December 12, 2006, Department of Homeland Security officials
raided six meatpacking plants across the nation in search of illegally employed
immigrants. The action resulted in the arrest of 1,282 workers— nearly ten
percent of the targeted company’s workforce. See Rachel L. Swarns, Illegal
Immigrants at Center of New ID Theft Crackdown, N.Y. Times, Dec. 14, 2006, at
A38. “The action targeted the use of legitimate Social Security numbers by
illegal immigrants— what . . . [the] spokeswoman for Immigration and Customs
Enforcement[] called ‘a massive identity-theft scheme.’” Nicole Gaouette, Six
M eat Plants Are Raided in M assive I.D. Theft Case, latimes.com, Dec. 13, 2006,
at http://www.latimes.com/news/nationworld/nation/la-na-
raid13dec13.0.5308699.story?track=rss. See also Swarns, supra (reporting the
Secretary of Homeland Security’s intention to “aggressively pursue document-
theft rings and the illegal immigrant workers w ho use them,” and reporting his
statement that “‘when we remove the illegal workers, there’s going to be some
kind of slowdown’”).
8
See Illegal Immigration Reform and Immigrant Responsibility Act of
1996, Pub. L. No. 104-208, §§ 401-404, 110 Stat. 3009, 3009-655 to 3009-665;
U.S. Citizenship & Immigration Servs., U.S. Dep’t of Homeland Sec., Report to
C ongress on the Basic Pilot Program (June 2004),
(continued...)
-14-
Basic Pilot electronically submit information from a new ly hired employee’s I-9
form— name, date of birth, SSN , citizenship status (if provided)— for comparison
with information on the SSA’s primary database, irrespective of the facially
compliant documents provided by the employee to satisfy I-9 requirements. If the
information submitted by the employer matches SSA data, the employer is
notified of the employee’s verified, eligible status. If the employer-submitted
data and SSA records are inconsistent, or if SSA cannot issue verification for
some other reason, the employer-submitted information is then checked by
USCIS. 9 If eligibility still cannot be established, the government issues a
“tentative nonconfirmation,” and the employer must notify the employee of the
finding. USCIS, U.S. Dep’t of Homeland Sec., Findings of the Basic Pilot
8
(...continued)
http://www.uscis.gov/files/nativedocuments/BasicFINALcongress0704.pdf
[hereinafter, USCIS, Report to Congress]; Pilot Programs for Employment
Eligibility Confirmation, 62 Fed. Reg. 48309, 48311 (Sept. 15, 1997) (“The Basic
Pilot involves separate verification checks (if necessary) of the SSA and [USCIS]
databases, using automated systems to verify Social Security account numbers . . .
and alien registration numbers.”). In 2006, the U.S. Senate and House of
Representatives each passed differing versions of a bill that would have made the
Basic Pilot Program mandatory for all U .S. employers. See Border Protection,
Antiterrorism, and Illegal Immigration Control Act of 2005, H.R. 4437, 109th
Cong. (2006); Comprehensive Immigration Reform Act of 2006, S. 2611, 109th
Cong. (2006).
9
IN S published the procedures for Basic Pilot in 1997. Subsequently, IN S
transferred from the Department of Justice to the Department of Homeland
Security, where its functions are now carried out by USCIS. See 69 Fed. Reg.
75997, 75998 (Dec. 20, 2004). Thus, where the 1997 procedures refer to INS,
this opinion substitutes USCIS.
-15-
Program Evaluation 42 (June 2002), at
http://www.uscis.gov/files/article/4% 5B1% 5D.b% 20C_II.pdf [hereinafter USCIS
Findings]. Employees are given eight federal workdays to contact USCIS or SSA
and resolve the problem. If the employee chooses not to contest the tentative
nonconfirmation, it is considered a “final nonconfirmation” and the employer may
terminate the employee. If the employee does choose to contact the relevant
agency and the agency resolves the issue, the employee must notify his employer
and the employer must confirm the new result through the Basic Pilot computer
system. If eligibility is still not established after this period and no further
verification instructions are provided by the SSA, the employer is authorized to
discharge the employee. See USCIS Findings, supra, at 40–44; 62 Fed. Reg.
48309, 48312–13. See also USCIS, Report to Congress, supra note 8, at 2–3. If
the employer chooses not to terminate an employee after issuance of a final
nonconfirmation, it must notify USCIS. Failure to notify constitutes a violation
of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 and
may result in legal penalties. 62 Fed. Reg. 48309, 48313.
Compliance efforts have shifted to Social Security number verification
because of the easy availability of forged documents and the prevalence of
identity theft, which make other forms of documentation less reliable. At a House
subcommittee hearing on proposed legislation to make participation in the Basic
Pilot Program mandatory, the Chair of the House Subcomm ittee on Workforce,
-16-
Empowerment, & Government Programs explained that “the easy availability of
counterfeit documents has made a mockery of [IRCA]. Fake documents are
produced by the millions, and they can be bought very cheaply.” Verification
Hearing, supra (statement of Rep. M arilyn M usgrave, Chairman); see also USCIS
Findings, supra, at 178, at
http://www.uscis.gov/files/article/6% 5B1% 5D.a% 20C_XI.pdf. (“Individuals
without work authorization frequently obtain work by using counterfeit or altered
documents.”). An increasingly common method of circumventing IRCA involves
flat-out identity theft, i.e., the “use [of] real documents belonging to another
person. For example, individuals may borrow documents belonging to relatives
or friends with similar characteristics.” USCIS Findings, supra, at 179; see also
Verification Hearing, supra, (statement of Jack Shandley, Senior Vice President,
Swift & Co.) (“The underground market responded [to a crackdown on counterfeit
documents] by replacing counterfeit documents with genuine identification
docum ents obtained under fraudulent terms . . . .”). Reliance on data— SSN,
name, birthdate, asserted citizenship status— rather than documents ameliorates
this problem.
In his dissenting opinion, Judge Lucero writes at length about the anti-
discrimination requirements contained within IRCA, 8 U.S.C. § 1324b(a), despite
the fact that M r. Zamora has not alleged a violation of those provisions. See
Dissenting Op. at 11–15. Citing the text, legislative history, and implementing
-17-
regulations of the IRCA provisions, the dissent seems to imply that our
interpretation of Title VII ought to be guided by these provisions. That
suggestion is unfounded because— as the dissent acknowledges— the IRCA anti-
discrimination provisions were intended to “‘broaden[] the Title VII protections
against national origin discrimination, while not broadening other Title VII
protections.’” Id. at 12 (emphasis removed) (quoting H.R. Conf. Rep. No. 99-
1000 (1986), reprinted in 1986 U.S.C.C.A.N. 5840, 5842). This case arises under
Title V II— not IR CA ’s anti-discrimination provisions— and the principles we
interpret will apply across the board to all Title VII claims. It would be contrary
to congressional intent for us to “broaden” Title VII by interpreting it to coincide
with the IRCA anti-discrimination provisions. To confine our analysis to Title
VII does not “go far in insulating employers from national origin discrimination
claims,” as the dissent charges. Id. at 14. It simply respects the different reach of
the tw o different statutes.
IV.
Turning first to M r. Zamora’s suspension claim, I am at a loss to see how a
reasonable factfinder could construe the sequence of events detailed above as
discriminatory.
Through M r. Zamora’s suspension on or about M ay 22, and up to M r.
Tucker’s rejection of M r. Zamora’s proffer of a naturalization certificate when he
returned later that day or the next, Elite’s actions are free of any taint of
-18-
discrimination. W hen the company learned of the impending INS inspection,
Elite undertook an examination of the Social Security numbers of all of its
employees, without regard to their race or national origin. W hen it learned that
thirty-five employees had irregularities regarding their Social Security numbers,
Elite contacted all thirty-five and asked all thirty-five for documentation that
would clear up these issues. Although M r. Zamora complains that the company
put the burden on the employees to prove their identity and eligibility rather than
contacting the relevant government agencies itself, this approach was lawful, and
more importantly was applied to all affected employees w ithout regard to their
race or national origin. No one disputes that the company’s outside contractors
uncovered evidence of irregularities in M r. Zamora’s SSN . No one disputes that
it w as law ful for the company to ask M r. Zamora to clear up the discrepancy. N o
one disputes that the company gave M r. Zamora sufficient time— ten days— to do
so. And no one disputes that, twelve days after receiving notice, M r. Zamora had
failed to do anything to clear up the problem. At the time when M r. Zamora was
suspended from employment on M ay 22, therefore, no reasonable juror could find
that he had been treated differently from any other employee, on the basis of his
national origin. See Zam ora, 449 F.3d at 1118–19 (Ebel, J., dissenting).
The discriminatory suspension claim arises primarily from M r. Zamora’s
allegation that he later presented M r. Tucker with a certificate of naturalization,
and that M r. Tucker refused to accept it as sufficient resolution of his Social
-19-
Security number irregularities. Because M r. Zamora was the only employee of
the thirty-five problem cases to reach this juncture, one cannot determine whether
he was treated differently from other employees. But one can examine the
circumstances for evidence that would allow a reasonable factfinder to draw an
inference of discrimination. I find none.
M r. Zamora argues that once he produced his naturalization certificate, it
should have been sufficient to clear the company of any possible liability under
IRCA. Any further requests for documentation, he argues, were inconsistent with
the company’s stated rationale and thus evidence of pretext. Similarly, M r.
Zamora contends that because the memorandum handed to him on M ay 10 stated
that “eligibility can be established with . . . a Certificate of Citizenship or
Naturalization,” M r. Tucker’s rejection of such a document is evidence of pretext.
Lastly, M r. Zamora argues that M r. Tucker’s personal demeanor is evidence of
discrimination. I do not find these arguments convincing for several reasons.
A.
First, M r. Zamora ignores the critical fact that in addition to presenting M r.
Tucker with his naturalization certificate he also presented him a Social Security
document that displayed a birth date different from the one he had previously
reported to Elite. See Appellant’s Supp. App. at 89. This new development
understandably heightened M r. Tucker’s suspicion regarding whether the SSN
used by M r. Zamora was legitimately his. The contemporaneous presentation of a
-20-
naturalization certificate, which would not contain M r. Zamora’s SSN , would not
have resolved the issue. As M r. Tucker explained:
[M ]y concern w ith M r. Zamora w as could I find a document or a
couple of documents that had the birthdate he was using, the name he
was using, and the social security number he was using that verified
that this is truly his? A nd when he brought [in the document with the
different birth date,] in addition to the other concern that had been
raised w ith this different birthdate, it appeared to me as if now we
had possibly three individuals using this same card.
Tucker Dep. at 64.
It may have been wrong, but it was not unreasonable for M r. Tucker to
believe that, under these circumstances, examination of the naturalization
certificate would fail to bring the company into compliance with IRCA. IRCA
makes it “unlaw ful for [an employer], after hiring an alien for employment in
accordance with [IRCA’s hiring procedures] to continue to employ the alien in the
United States knowing the alien is (or has become) an unauthorized alien with
respect to such employment.” 8 U.S.C. § 1324a(a)(2). Thus, M r. Tucker may
have reasonably believed that while examination of a facially valid naturalization
certificate would satisfy Elite’s statutory duties at the hiring stage, see 8 U.S.C. §
1324a(a)(3), once the company was confronted with a specific question about a
worker’s documentation, it was under a duty to investigate and resolve that
specific concern.
Indeed, case law interpreting IRCA supports Elite in this view . The Ninth
Circuit has held that 8 U.S.C. § 1324a(a)(2) adopts a “constructive knowledge
-21-
standard,” whereby “a deliberate failure to investigate suspicious circumstances
imputes knowledge” to an employer. New El Ray Sausage Co. v. INS, 925 F.2d
1153, 1157–58 (9th Cir. 1991) (citing M ester M fg. Co. v. INS, 879 F.2d 561, 567
(9th Cir. 1989)). As that court explained, employers share “part of [the] burden”
of “proving or disproving that a person is unauthorized to work.” Id. Initial
verification at the hiring stage is done through document inspection, but “[n]otice
that these documents are incorrect places the employer in the position it would
have been if the alien had failed to produce documents in the first place: it has
failed to adequately ensure that the alien is authorized.” Id. M oreover,
[a]lthough compliance w ith the paperwork procedures establishes a
good faith defense against a finding of unlawful hiring, 8 U.S.C. §
1324a(a)(3), it should provide no defense against a violation of
section 1324a(a)(2). W hile the hiring can be considered in good faith
since the false nature of the documents was unknown, the continuing
employment is done with the knowledge that the document is false.
Id. at 1158 n.7.
W hether or not this Court ultimately agrees with the N inth Circuit’s
interpretation— which we need not decide in this case— New El Ray Sausage
demonstrates that M r. Tucker’s diligence in seeking resolution of all
reported SSN discrepancies was within the bounds of reasonableness and,
therefore, that his continued focus on resolving M r. Zamora’s SSN problem
does not constitute strong evidence of pretext. See Meltzer v. Fed. Home
Loan Bank of Topeka, 464 F.3d 1164, 1178 (10th Cir. 2006) (“‘[A] mistaken
-22-
belief can be a legitimate reason for an employment decision and is not
necessarily pretextual.’” (quoting EEOC v. Flasher Co., Inc., 986 F.2d
1312, 1322 n.12 (10th Cir. 1992)); Stover v. M artinez, 382 F.3d 1064, 1076
(10th Cir. 2004) (“[I]n evaluating pretext, the relevant inquiry is not
whether [the employer’s] proffered reasons were wise, fair or correct, but
whether [the employer] honestly believed those reasons and acted in good
faith upon those beliefs.”) (internal citations and quotation marks omitted);
Reynolds v. School Dist. No. 1, Denver, 69 F.3d 1523, 1535 (10th Cir. 1995)
(“[A]n employer’s exercise of erroneous or even illogical business judgment
does not constitute pretext.”). See also M cKnight v. Kimberly Clark Corp.,
149 F.3d 1125, 1129 (10th Cir. 1998) (“Summary judgment is not ordinarily
appropriate for settling issues of intent or motivation . . . . However, in this
case, M cKnight has not shown that at the time of his termination there was
any dispute or a genuine issue concerning the sincerity of defendants’
proffered reason for his termination.”).
M r. Zamora’s position appears to be that whenever an employer has
“good” documents on file— that is, documents that facially comply with
IRCA and for which questions have not been raised— the employer is barred
from pursuing any suspicious circumstances that arise concerning other
documents on file. As New El Ray Sausage demonstrates, IRCA does not
necessarily read that way, and I do not believe an employer should be held
-23-
to have discriminated under Title VII for failing to adopt this somewhat
surprising reading of its responsibilities. Indeed, if any action beyond facial
examination of eligibility documents is discriminatory, then the entire Basic
Pilot Program— which is designed to curb the growing problems of
document fraud and identity theft— might be called into question, since it is
premised on the examination of data discrepancies rather than documents.
In arguing that Elite’s proffered reason is pretextual, the dissent rests
heavily on a quotation from M r. Tucker’s deposition in which he
affirmatively responded to the following question: “So, it wasn’t really a
concern about whether [M r. Zamora] is entitled to work in this country, it
was a concern about is he using the correct social security number?” Tucker
Dep. at 87. The dissent interprets this as a “concession” that M r. Tucker
“was not concerned with Zamora’s lawful right to work in this country as of
M ay 22, 2002.” Dissenting Op. at 18-19. The statement, however, must be
understood in context:
(1) W hen asked what IRCA requires, M r. Tucker stated: “W ithin three
days of [an employee’s] working for us we have to have documents that
establish, one, their identity; and two, their eligibility to work in this
country. Sometimes those documents can be one and the same.” Tucker
Dep. at 17.
-24-
(2) In explaining his concern over M r. Zamora’s file, M r. Tucker
stated: “M y concern w ith M r. Zamora w as could I find a document or a
couple of documents that had the birthdate he was using, the name he was
using, and the social security number he was using that verified this is truly
his?” Id. at 64.
(3) W ith this as background, M r. Tucker was then asked: “So would it
be fair to say that the problem with the social security number is that it
points to a potential that, in fact, he is not entitled to work in this country?”
Id. at 87. M r. Tucker responded: “W hat I had was a social security number
that indicated three different people may have used that number at three
different points in time. I wanted to ascertain with certainty that that
number belonged to M r. Zamora.” Id.
(4) Only then did M r. Zamora’s attorney ask: “So it wasn’t really a
concern w hether he is entitled to work in this country, it was a concern
about is he using the correct social security number?,” w hereupon M r.
Tucker responded, “Yes sir.” Id.
M r. Tucker never testified that he was unconcerned with IRCA
compliance in general, only that his concern related to M r. Zamora’s SSN
rather than any other issues surrounding “entitlement to work in this
country.” As already discussed, an increasingly common form of IRCA
fraud entails the presentation of valid documents that belong to someone
-25-
else. Thus, while SSNs are initially used to confirm employment eligibility
under IRCA (rather than identity), when an employer learns that a Social
Security number has been used by multiple persons, the employer might
reasonably be concerned that an employee is not who he purports to be— in
other w ords, that the SSN the employee presents does not match the identity
he presents. Consequently, the question relevant to this case is not really
one of “eligibility” under IRCA, but rather of the match between identity
and proof of eligibility. In M r. Tucker’s words: “W hat I had was a social
security number that indicated three different people may have used that
number at three different points in time. I wanted to ascertain with certainty
that that number belonged to M r. Zamora.” Id. at 64.
The dissent misapprehends the nature of M r. Tucker’s concern, and
therefore erroneously concludes that M r. Tucker was not concerned with
IRCA compliance— or more precisely, that Elite’s professed concern about
IRCA compliance must be a pretext for its real motive: discrimination
against persons of M exican nationality. M r. Tucker repeatedly explained
that he w as concerned w ith M r. Zamora’s reported SSN discrepancy. As
detailed above, a reasonable reading of IRCA suggests that when such
problem s are reported, an employer must resolve them. Read in context,
M r. Tucker’s statements— including his “concession”— reflect a concern
-26-
with this aspect of IRCA compliance rather than an admission that M r.
Tucker w as w holly unconcerned with IRCA.
The dissent objects that my interpretation of M r. Tucker’s remark
relies on its “context.” Dissenting Op. at 3 n.3, 20, 21 n.13. It asserts that
consideration of “contextual hues” will “amount to impermissible inferences
draw n in favor of Elite,” and implies that on summary judgment a court
must disregard such “arguments.” Id. at 21. Such an approach would depart
from well-established principles of Title VII law . As the Supreme Court
recently explained:
[T]he significance of any given act of [employment] retaliation will
often depend upon the particular circumstances. Context matters.
“The real social impact of workplace behavior often depends on a
constellation of surrounding circumstances, expectations, and
relationships which are not fully captured by a simple recitation of
the words used or the physical acts performed.”
Burlington N. & Santa Fe Ry. Co. v. White, 126 S. Ct. 2405, 2415 (2006)
(emphasis added) (quoting Oncale v. Sundowner Offshore Servs., Inc., 523
U.S. 75, 81-82 (1998)). Accordingly, this Court frequently examines
statements and events in context to determine their legal effect or whether
they genuinely create a disputed question of material fact. See, e.g., Jones
v. Barnhart, 349 F.3d 1260, 1269 (10th Cir. 2003) (considering allegedly
discriminatory acts and finding that, “[i]n context, these particular incidents
do not appear to be founded in racial enmity”); Rakity v. Dillon Com panies,
-27-
Inc., 302 F.3d 1152, 1163 (10th Cir. 2002) (noting the importance of
viewing deposition testimony in its full context and concluding that
comments from one portion of a deposition were clarified by comments in
another portion and therefore did not raise a genuine issue of material fact);
Curtis v. Okla. City Pub. Sch. Bd. of Educ., 147 F.3d 1200, 1215 (10th Cir.
1998) (finding that deposition statements, “placed in context, [did] not
support Plaintiff’s claim that” his employer “terminated him for no reason”
and concluding that he failed to “establish[] a genuine issue of material
fact”); Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1538 (10th Cir. 1995)
(viewing allegedly discriminatory comments by co-workers in “context” and
affirming summary judgment for defendant); Ingels v. Thiokol Corp., 42
F.3d 616, 623 n.4 (10th Cir. 1994) (view ing a human resource director’s
testimony “in context” to conclude that it did not constitute evidence of
pretext in an age discrimination case), abrogated on other grounds by Nat’l
R.R. Passenger Corp. v. M organ, 536 U.S. 101 (2002); Ambus v. Granite
Bd. of Educ., 975 F.2d 1555, 1565 (10th Cir. 1992) (finding that facially
“disturbing” deposition testimony, “taken in context,” did not constitute the
showing of bias needed to support plaintiff’s due process claim); M ella v.
M apleton Pub. Sch., 152 Fed. App’x 717, 724–25 (10th Cir. 2005)
(unpublished) (reading statements in context to conclude that “no reasonable
jury could construe [them] as ageist”); Shinwari v. Raytheon Aircraft Co.,
-28-
No. 98-3324, 2000 W L 731782, at *10 (10th Cir. June 8, 2000) (Lucero, J.)
(unpublished) (“V iew ing the entirety of the evidence in context, we
conclude that this single isolated inconsistency is not sufficient to
undermine the sincerity of Raytheon’s professed motive for taking adverse
action . . . .”) abrogated on other grounds by Clark County Sch. Dist. v.
Breeden, 532 U.S. 268, 269 (2001); Drake v. Colo. State Univ., Nos. 97-
1076, 97-1077, 1998 W L 614474, at *5 (10th Cir. Sept. 8, 1998)
(unpublished) (finding that, “[p]laced in context,” an employer’s statements
did not constitute evidence of retaliatory motive sufficient to rebut the
employer’s proffered nondiscriminatory reason).
It would be error to do otherwise. The principle that a court must
resolve disputed facts in favor of the nonmoving party does not license the
court to disregard undisputed facts, even regarding “context,” if those facts
would preclude a reasonable jury from finding discrimination. In this case,
the context makes clear— and no reasonable jury could find otherwise— that
M r. Tucker was concerned about M r. Zamora’s Social Security number
issues as part of the company’s IRCA compliance efforts. There is nothing
in M r. Tucker’s statements, read in context, that would warrant an inference
that his concerns about M r. Zamora’s SSN were a pretext for discrimination.
-29-
B.
Second, while we have held that pretext can be shown “with evidence
that the defendant acted contrary to a written company policy prescribing
the action to be taken by the defendant under the circumstances,” English,
248 F.3d at 1009, and while it is true that the m emorandum issued to M r.
Zamora stated that a naturalization certificate was an acceptable form of
proof of identity and employment eligibility, the memorandum also stated
that “the documents you provided us previously are questionable.”
Appellant’s Supp. App. at 87. According to M r. Tucker, when he handed
the memo to M r. Zamora, he “told him through the interpreter that it
appeared as if his documentation might have a problem and that he would
have ten days to try to resolve the discrepancy.” Tucker Dep. at 52
(emphasis added). At his deposition, and in his complaint before the Equal
Opportunity Employment Commission, M r. Zamora admitted that “[o]n or
about M ay 10, 2002, my manager asked me to bring again documents to
prove that I had a valid Social Security number and the right to work in this
country.” Zamora Dep. at 21–22 (emphasis added). Additionally, the
following exchange occurred at M r. Zamora’s deposition:
Q. Okay. And is it fair to say that you knew you needed to
bring a valid Social Security number and documents to prove
the right to work in this country?
A. Yes.
Q. And you knew that on M ay 10th?
-30-
A. Yeah.
Id. at 22. Thus, although the Elite memorandum, read in isolation, might
suggest some sort of inconsistency, when read in context of what was said to
M r. Zamora— and what took place in this case— it does not get M r. Zamora
very far.
C.
Third, as discussed above, the Supreme Court has held that a showing
by the plaintiff that the employer’s asserted justification is false will not
alw ays be adequate to sustain a jury’s finding of liability. Reeves, 530 U.S.
at 148. The Court offered two examples of when this might be the case.
One such example arises when “the plaintiff create[s] only a weak issue of
fact as to whether the employer’s reason was untrue and there was abundant
and uncontroverted independent evidence that no discrimination had
occurred.” Id. As already noted, M r. Zamora has, at best, created a weak
issue of fact as to whether M r. Tucker was really pursuing IRCA
compliance: his attempt to resolve known SSN discrepancies was entirely
reasonable under IRCA and relevant case law, and his continued insistence
on resolving that problem was consistent with what M r. Zamora was told
about his need to resolve the SSN issue. But more importantly, there is a
complete absence of any evidence that Elite harbored any animosity tow ard
persons of M exican extraction. Quite the contrary. The same employer
-31-
hired other employees of M exican descent, hired M r. Zamora knowing he
was from M exico, told M r. Zamora he would be rehired if he could clear up
the SSN problem, and offered to rehire him immediately after verifying his
documentation, a mere three days after suspending him. 10 If these actions
were a pretext for discriminating against persons of M exican nationality, it
was an exceedingly peculiar w ay to go about it. Cf. Antonio v. Sygma
Network, Inc., 458 F.3d 1177, 1183 (10th Cir. 2006) (“M ost of the same
individuals . . . who decided to terminate Antonio for job abandonment had
also hired her twice, fully aware of her race and national origin. It makes
little sense to deduce that these individuals terminated Antonio roughly ten
months later because of her race and/or national origin.”).
10
At his deposition, M r. Zamora admitted that aside from the rejection of
his papers, M r. Tucker did nothing to suggest an animus toward Hispanics:
Q. Okay. Did M r. Tucker tell you that he did not like Hispanic
people?
A. No.
Q. Did M r. Tucker tell you that he did not like M exican people?
A. No.
Q. W ere there other people that worked in Elite Logistics who were
from M exico?
A. Yes.
...
Q. And what are your reasons for believing that Elite discriminated
against you because of your national origin? . . .
A. Because he don’t believe me that the papers that I give him was
right or mine.
Zamora Dep. at 40–41.
-32-
The Supreme Court’s second example of when evidence of
inconsistency may not give rise to a finding of pretext occurs when “the
record conclusively reveal[s] some other, nondiscriminatory reason for the
employer’s decision.” Reeves, 530 U.S. at 148. Here, even if we were to
assume that M r. Tucker was not simply trying to satisfy what he believed
were Elite’s responsibilities under IRCA, the most that can be said of him is
that he w as fixated on ensuring that all of Elite’s employees had valid SSNs
on file and that all reported SSN problems were resolved. M r. Tucker’s
actions throughout this process were consistent with this concern and this
concern only. His first step was to check all employees’ SSN s. W hen
problem s w ere discovered, he pursued each and every one of them to
resolution. As soon as M r. Zamora produced adequate proof of the validity
of his SSN , M r. Tucker asked him to return to work. As already explained,
these actions could be consistent with a reasonable interpretation of IRCA.
But, even if they were not, they at most reveal a mistaken preoccupation
with ensuring that the reported SSN problems get resolved, not some sort of
covert plan to target M r. Zamora because of his ethnicity.
D.
-33-
M r. Zamora also contends that M r. Tucker’s rudeness in reacting to
the demand for an apology is indicative of a discriminatory motive. But the
record contains no evidence that M r. Tucker’s reaction to M r. Zamora’s
request w as related to ethnicity. As M r. Tucker stated in his
deposition— explaining why M r. Zam ora’s translator may have used strong
language on M r. Zamora’s behalf— “[f]oul language is quite common [at the
Elite] organization.” Tucker Dep. at 56. “Title VII is not a general civility
code for the American workplace.” Dick v. Phone Directories Co., 397 F.3d
1256, 1263 (10th Cir. 2005). Rudeness does not, standing alone,
demonstrate discrimination, especially in a w arehouse environment where
top hats and tails are not the norm. And none of M r. Tucker’s purportedly
rude behavior focused upon M r. Zamora’s ethnicity. Indeed, before he
called M r. Zamora into his office on M ay 10, M r. Tucker had never met M r.
Zamora. Tucker Dep. at 12. M r. Tucker summoned M r. Zamora solely to
reconcile a reported SSN discrepancy, and all of M r. Tucker’s conduct
towards M r. Zamora following that incident was based upon that
discrepancy.
That M r. Tucker suspected M r. Zamora of some form of SSN fraud is
scarcely evidence that he was bigoted against persons of M exican ethnicity
or nationality. M r. Tucker had investigated thirty-four other employees w ith
similar problems and none of them had been able to establish the
-34-
authenticity of their SSN s. M r. Zamora was last on the list, and it was not
unreasonable for M r. Tucker to expect that he would follow the pattern. It
turned out M r. Zamora w as the exception, but that does not mean M r.
Tucker’s suspicions were a product of animus.
V.
Though I agree with Judge Ebel’s analysis for the Court as to the
dismissal claim, I write to spell out an additional reason why we should
affirm the district court on this front. As I understand M r. Zamora’s
theory— and that of Judge Lucero in dissent— the circumstances surrounding
M r. Zamora’s suspension formed the context for his termination and “it is
inappropriate to ignore the former event when analyzing the latter.”
Dissenting Op. at 2. In other w ords, if one accepts the theory that M r.
Tucker’s previous actions with regard to M r. Zamora’s employment status
were motivated by animus tow ard those of M exican descent, one must also
accept that M r. Tucker’s reaction to M r. Zamora’s demand for an apology
was similarly motivated. M r. Tucker fired M r. Zamora, the theory goes, not
as a reaction to the ultimatum (not even as a disproportionate or even
unreasonable reaction), but rather because the demand finally gave M r.
Tucker the cover he needed to rid the company of an employee he
disfavored because of his national origin.
-35-
The consequences of such a holding would be stark: essentially any
victim of a discriminatory adverse employment action that fell short of
termination could morph his grievance into a more lucrative wrongful
termination claim by presenting his employer with an ultimatum. W hile
appropriate means for opposing workplace discrimination exist— such as
internal grievance processes, the Equal Opportunity Employment
Commission, or the courts— employee-fashioned ultimatums are not among
them. There are a multitude of valid reasons why an employer might not
issue an apology on demand, not the least of which is a reluctance to admit
legal liability or moral culpability before a claim has been fully reviewed
through appropriate channels. If M r. Zamora’s theory holds, employers
would face a daunting Catch-22: apologize and perhaps admit the previous
violation of the discrimination laws, or fail to satisfy the ultimatum and face
potentially increased liability for wrongful termination. 11 Title VII provides
employees with a method of remedying acts of discrimination, not with a
means of creating them.
Conclusion
11
M oreover, if the Court were to validate M r. Zamora’s theory, it might
mean that an employee could unilaterally turn every claim of discrimination under
42 U.S.C. § 2000e-(2)(a)(1) into a retaliation claim under 42 U.S.C. §2000e-3(a),
which makes it unlaw ful “for an employer to discriminate against any of his
employees . . . because he has opposed any practice made an unlawful
employment practice” under Title VII. 42 U.S.C. §2000e-(3)(a).
-36-
For these reasons— in addition to those enunciated in Judge Ebel’s
opinion, which I join— I would affirm the district court’s disposition as to
both claims.
-37-
04-3205, Zam ora v. Elite Logistics, Inc.
G O R SU CH, Circuit Judge, concurring.
I join Judge Ebel’s opinion for the Court as well as Judge
M cConnell’s concurrence, with the exception of the discussion in the last
paragraph of Section III of the latter opinion regarding the interrelationship
betw een IRCA’s anti-discrimination provision and Title VII.
Judge Lucero and Judge M cConnell engage in a perhaps unavoidable
disagreement over many highly important issues in this difficult case. But
on one issue at least, their dispute seems to me unnecessary. Judge Lucero
and Judge M cConnell debate in some detail whether and to what degree
Title VII analysis should be informed by IRCA’s anti-discrimination
provision (8 U.S.C. § 1324b) and the policies and purposes that provision
serves. 1 Yet, as Judge M cConnell notes, the plaintiff in this case does not
allege a violation of the IRCA anti-discrimination provision. See
Concurring Op. at 17 (M cConnell, J.). In fact, in his opening appellate
brief, M r. Zamora expressly declined to challenge the district court’s ruling
that IRCA’s anti-discrimination provision applies only to “hiring, or
1
Notably, too, this debate is waged primarily with citations to competing
snippets of legislative history. But see Exxon M obil Corp. v. Allapattah Servs.,
Inc., 545 U .S. 546, 568 (2005) (“Judicial investigation of legislative history has a
tendency to become, to borrow Judge Leventhal’s memorable phrase, an exercise
in looking over a crowd and picking out your friends.” (internal quotation
omitted)).
recruitment or referral for a fee” and not to decisions, such as in this case,
regarding suspension or termination. See Appellant’s Br. at 21.
Under these circumstances, it is unnecessary for us to address the
impact of IRCA’s anti-discrimination provision and its underlying policies
on Title VII analysis, and I would leave open these matters for resolution
another day when the parties before us have reason and opportunity to
address them fully. See generally Bowdry v. United Airlines, Inc., 58 F.3d
1483, 1490 (10th Cir. 1995) (citing, inter alia, Headrick v. Rockwell Int’l
Corp., 24 F.3d 1272, 1277-78 (10th Cir. 1994) (W hite, J.)). I find it
noteworthy that the original panel opinion pursued much the same
prudential course. See Zam ora v. Elite Logistics, Inc., 449 F.3d 1106, 1113
(10th Cir. 2006). Addressing such a novel legal question for the first time
en banc and on our own motion – without the benefit of detailed briefing
from the litigants affected by our decision, a panel decision on point, or
prior opinions from our sister courts – runs the risk of an improvident or ill-
advised result given our dependence as an Article III court on the traditions
of the adversarial process for sharpening, developing, and testing the issues
for our decision. This risk seems to me particularly serious here, where the
question addressed is both highly complex and consequential and involves
how we are to give proper respect to the directives we have received from
Congress in two nuanced and related statutory regimes.
-2-
04-3205, Zamora v. Elite Logistics, Inc.
LUCERO, J., joined by Judges HOLLOW AY, HENRY, BRISCOE, and
MURPHY, dissenting.
We granted en banc rehearing in this case to reconsider the panel
opinion, Zamora v. Elite Logistics, Inc., 449 F.3d 1106 (10th Cir. 2006), which
dealt with two fact-bound summary judgment issues. First, did Zamora, a
United States citizen and apparent victim of identity theft, create a material
dispute of fact regarding Elite’s motive for Zamora’s week-long unpaid
suspension, given that, on the first day of his suspension, he produced a
naturalization certificate consistent with information already in his employment
file? Second, did Zamora create a material dispute of fact regarding Elite’s
motive for terminating Zamora following his demand for an apology for his
suspension?
Anomalously, we are divided seven to seven on whether there is a
material dispute of fact regarding the suspension, and thus reinstate the district
court’s opinion on that point. Notwithstanding that resulting disposition, a bare
majority of our court determines that “[human resources manager Larry]
Tucker’s suspending Zamora and his later decision to terminate Zamora’s
employment must be viewed as discrete, separate events,” although the two
incidents happened just four days apart, and holds that Zamora’s second claim
fails as a matter of law. (Maj. Op. 13.) From the majority’s holding on the
latter claim, I respectfully dissent.
The basis of my dissent is that neither the facts nor the law lend
themselves to a surgical excision of the two issues in the manner espoused by
the majority. Because Zamora’s suspension and termination occurred just days
apart and were imposed by the same supervisor, it is inappropriate to ignore the
former event when analyzing the latter.
I continue to think it unnecessary to examine the suspension claim in
detail because, under our circuit practice, we affirm the district court’s decision
without opinion when we evenly divide on the disposition of a claim.
Nonetheless, because Judge McConnell’s concurrence 2 chooses to discuss the
issue at length, this dissent responds to the McConnell concurrence as well.
I
This appeal stems from a grant of summary judgment in favor of Elite on
both Zamora’s suspension and termination claims. “We review the district
court’s grant of summary judgment de novo, applying the same legal standard
2
Because we have split evenly on the disposition of Zamora’s suspension
claim, the court has issued no opinion to which a concurrence may properly be
addressed, particularly so given that the “concurrence” is directly contrary to the
vote on the suspension claim of the author of the majority opinion. I find no
precedent for the issuance of a concurrence to an evenly divided en banc
judgment. Notwithstanding disagreement with the characterization of Judge
M cConnell’s discourse as a concurrence, this dissent refers to Judge M cConnell’s
discussion of the suspension claim as “the concurrence.”
-2-
as the court below.” Munoz v. St. Mary-Corwin Hosp., 221 F.3d 1160, 1164
(10th Cir. 2000). Summary judgment is only appropriate “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.” Fed. R.
Civ. P. 56(c). It is our obligation on appeal to view the evidence and draw
reasonable inferences therefrom in the light most favorable to Zamora, the
nonmoving party. Munoz, 221 F.3d at 1164. Making these inferences, the
facts are as follows. 3
In 1987 Zamora was granted legal permanent residency in the United
States. In August 2001, he was hired by Elite. At that time, Zamora provided
Elite with a copy of his social security card and his alien registration card, and
3
The concurrence implicitly argues this dissent incorrectly portrays “a
hapless employee repeatedly offering sound documentation of his work status,
and just as often being senselessly (or invidiously) rebuffed.” (Concurring Op.
2.) O n the contention that this “is scarcely a fair description of what occurred,”
(id.), it then advances an alternative factual scenario. The concurrence depicts an
employer attempting to comply with the Immigration Reform and Control Act of
1986 (“IRCA”) and to maintain operations after it faced a worker strike which
“necessitated the rushed hiring of about three hundred replacement employees,”
(id. at 2-5), and an employee who ignored the company’s minimal requests.
For the most part, I do not disagree with the concurrence’s description of
the events leading up to Zamora’s initial meeting with Tucker. We mainly differ,
however, in our portrayal of the events after this meeting. Both find factual
support in the record, but this dissent makes reasonable inferences as required by
law, while the concurrence advances the defendant’s view of the facts. Using the
term “context,” the concurrence discredits evidence that a reasonable juror could
view as supporting Zamora. In my view , these contextual arguments are simply
impermissible inferences .
-3-
completed an I-9 form attesting that he was a Mexican citizen and lawful
permanent resident of the United States. While working for Elite, Zamora
became a naturalized citizen.
In December 2001, after receiving a tip that the Immigration and
Naturalization Service (“INS”) might inspect its Kansas City location, Elite
hired two independent contractors to check the social security numbers
(“SSNs”) of all employees at that location. 4 Tucker testified approximately
thirty-five or so employees, including Zamora, were identified as having
problems as a result of these investigations. A Datasource “Background
Investigation Report” revealed that an individual in California had used
Zamora’s SSN. (Appellee App’x 94, 96.) A second contractor, Verifications,
Inc., informed Elite that Zamora’s SSN had “been used by someone else for
credit purposes,” and instructed Elite that “[v]erification through the Social
Security Administration itself can only be done by the company that has hired
the applicant, by calling 800-772-1213.” (Id. at 97.) Tucker chose not to
verify Zamora’s social security status by calling this number at the time. Nor
did he bother to look at Zamora’s employment file, which contained Zamora’s
I-9 work authorization form and copies of his social security card and alien
4
In response to a Summer 2000 worker strike, Elite hurriedly hired
approximately 300 replacement employees. During this time, it operated under a
“get a body in the door” policy that blatantly disregarded IRCA requirements.
-4-
registration card, at any point during the ensuing events. Instead, he presented
Zamora with the following memorandum on May 10, 2002:
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 US 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, US 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 5:00 p.m. on
Monday, May 20, 2002, to the Department of Human Resources,
or you may be terminated.
Thank you.
(Appellant Supp. App’x 87.)
Under a part titled “Eligibility Documentation,” the memorandum continued:
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 5:00 p.m. on Monday, May 20, 2002, to produce
this documentation.
(Id.)
Although Zamora did not provide the requested documentation by May
20, he attempted to comply with Elite’s request immediately after Tucker
-5-
suspended him on May 22, thereafter presenting additional materials on
numerous occasions. 5 On the day of his suspension, Zamora presented Tucker
with a report of his earnings from the Social Security Administration (“SSA”),
his social security card, and an INS document showing that he had applied to
become a naturalized citizen in 2001. The INS form provided a customer
service number, but Tucker did not call that number. The SSA earnings report
issued for an “R. Zamora” listed a birth date of “2/1960,” conflicting with the
document plaintiff had provided to Elite when hired, showing a birth date of
June 14, 1961. By Tucker’s own admission, receipt of these documents
alleviated his concern about Zamora’s right to work in this country.
Nonetheless, Tucker chose not to end Zamora’s suspension without pay
and instead demanded more documentation, allegedly due to Tucker’s concerns
about the birth-date discrepancy between Zamora’s SSA earnings record and
Elite’s files. Zamora returned to Elite once again with a copy of his
naturalization certificate, a document that Elite had identified as sufficient to
show lawful work status in its May 10 memorandum. 6 Tucker not only rejected
5
The exact order of the following events is unclear from the record, but, as
did the district court, this dissent assumes the order occurred in the light most
favorable to Zamora.
6
Tucker testified that he did not recall receiving this document; Zamora,
however, vigorously asserts that he presented Tucker with a naturalization
certificate. B ecause w e view the facts in the light most favorable to Zamora, w e
assume that he did so. As required by statute, a naturalization certificate must
(continued...)
-6-
this certificate; he accused Zamora of stealing someone else’s SSN and told
Zamora to bring a different social security number than provided at hiring.
Finally, Zamora brought in a letter from the SSA bearing the stamp of the
agency and verifying that the SSN he provided was assigned to “Ramon
Zamora Farias,” the name Zamora had given Elite at hiring. Once again,
Tucker was not satisfied. Only after Tucker had his secretary confirm the
legitimacy of this letter by then placing a phone call to the SSA, did he allow
Zamora to return to work.
On May 29, Zamora entered Tucker’s office and handed him a letter that
demanded both an apology and an explanation. Tucker described Zamora as
“very polite” in tendering this letter. Although fully cognizant that Zamora had
been lawfully entitled to work during his entire week-long suspension, Tucker
refused to apologize, fired Zamora, then instructed him to “get the hell out.”
Later, Tucker testified that he was “shocked” that Zamora would request an
apology and never bothered to consider why Zamora would desire an apology.
II
Congress enacted Title VII to “eliminate those discriminatory practices
and devices which have fostered racially stratified job environments to the
disadvantage of minority citizens.” McDonnell Douglas Corp. v. Green, 411
6
(...continued)
include a photograph and the age of the naturalized person. 8 U.S.C. § 1449.
-7-
U.S. 792, 800 (1973). Because it is so difficult to ferret out national origin bias,
we must often rely on circumstantial evidence in deciding such claims.
However, the persuasive value of such evidence cannot be discounted.
“Circumstantial evidence is not only sufficient, but may also be more certain,
satisfying and persuasive than direct evidence.” Rogers v. Mo. Pac. R., 352
U.S. 500, 508 n.17 (1957); see also Desert Palace, Inc. v. Costa, 539 U.S. 90,
100 (2003).
For both Zamora’s suspension and termination claims, we follow the
three-step framework set forth in McDonnell Douglas for summary judgment
cases based on circumstantial evidence. A plaintiff must first plead a prima
facie case of a discriminatory employment action. Thereafter, the burden shifts
to the employer “to articulate some legitimate nondiscriminatory reason for the
employee’s rejection.” Id. at 802. Once the employer does so, the plaintiff
must offer evidence showing that the proffered reason is pretextual.
Although half of the members of this court agree that Zamora presented
sufficient evidence of pretext as to his continued suspension, the majority
opinion concludes that the record contains no evidence that Tucker terminated
Zamora because Zamora was a “Mexican-born Hispanic.” (Maj. Op. 13.) This
ignores the events surrounding Zamora’s suspension, which had ended a mere
four days before. We have stated that “evidence of the employer’s general
discriminatory propensities may be relevant and admissible to prove
-8-
discrimination.” Mendelsohn v. Sprint United Mgmt. Co., 466 F.3d 1223, 1226
(10th Cir. 2006). Moreover, “[e]vidence of pretext may include . . . prior
treatment of plaintiff.” Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1217
(10th Cir. 2002) (quotation omitted). I fail to understand how we can be
evenly divided over whether Tucker was motivated by racial bias against
Mexican-Americans on May 25, and yet issue a majority opinion concluding
that Tucker had no racial motivations as a matter of law on May 29.
The majority cites our recent decision in Antonio v. Sygma Network,
Inc., 458 F.3d 1177, 1183 (10th Cir. 2006), for the proposition that Tucker’s
decision to allow Zamora to return to work raises a “strong inference that the
employer’s stated reason for acting against the employee is not pretextual.”
(Maj. Op. 13.) From there, the majority jumps to the conclusion that “Tucker’s
suspending Zamora and his later decision to terminate Zamora’s employment
must be viewed as discrete, separate events.” Id. At no point in Sygma
Network did the court so hold. In fact, the guiding principals underlying the
holding of Sygma Network are that an individual can be assumed to maintain
the same views for a relatively short period in time, and that decisions
proximate in time and made by the same person may be viewed to establish
common context. Zamora’s suspension, permission to return to work, and
termination all took place within a span of days and were all decided by
Tucker. Thus, notwithstanding the grant of permission to return to work, there
-9-
is no principled reason to view the suspension and termination as “discrete,
separate events.” Unlike the instant case, the plaintiff in Sygma Network
offered no evidence that her employer engaged in arguably discriminatory
conduct towards her just days before the termination. 6 When such evidence
exists, Sygma Network offers no guidance.
Even more problematic is the majority’s bald assumption, again
purportedly underpinned by Sygma Network, that “[i]f Tucker was
discriminating against Zamora based upon his race or national origin, Tucker
would not have reinstated him.” (Maj. Op. 13.) This statement is not only
speculative, but also permits employers to easily insulate themselves against
discriminatory termination claims. Under the majority’s formulation, an
employer who wished to fire an employee for invidious reasons could do so
without fear of legal action simply by suspending and reinstating the employee
before terminating him. To the extent that the majority holds that Tucker’s
grudging permission for Zamora to return to work cleans the slate of all
6
Although the plaintiff produced evidence that her supervisor made an
arguably racial comment regarding the plaintiff’s body odor ten months prior to
termination, we held that this remark was an isolated comment too remote in time
to overcome pretext. Sygma Network, 458 F.3d at 1184. In Zamora’s case, the
suspension without pay was more significant than an isolated comment with no
adverse consequences and occurred just days before his termination.
-10-
evidence of discriminatory motive, including the circumstances surrounding
Zamora’s suspension, I disagree. 7
III
Although the concurrence would hold that Zamora’s suspension claim
fails as a matter of law, in my view Zamora has presented sufficient evidence
to survive summary judgment on this claim. The parties do not dispute that
Zamora has satisfied the first step of McDonnell Douglas by pleading a prima
facie case of discriminatory suspension. Therefore, the burden shifted to Elite
to articulate a legitimate nondiscriminatory reason for its actions. Elite
contends it was merely attempting to comply with IRCA in suspending Zamora
for approximately a week without pay. This case is accordingly decided at the
last step of McDonnell Douglas, in which Zamora must offer evidence showing
that the proffered reason is pretextual.
A
Because Tucker effectively conceded that his actions were not driven by
IRCA – he admitted he no longer had concerns about Zamora’s right to work in
7
The concurrence expresses concern that our approach would allow
“essentially any victim of a discriminatory adverse employment action that fell
short of termination [to] morph his grievance into a more lucrative wrongful
termination claim by presenting his employer with an ultimatum.” (Concurring
Op. 36.) I share neither the concurrence’s fear of the consequences of this
dissent’s suggested holding nor its jaundiced view of Title VII plaintiffs. In this
case, Zamora was fired before he could resign. Had Zamora resigned, he could
not have established a prima facie case of wrongful termination under Title VII.
-11-
this country as of May 22, 2002 – I see little merit in providing an in-depth
discussion of the statute. Nevertheless, because I differ greatly from the
concurrence in my view of IRCA’s requirements and restrictions, I briefly
outline my thoughts on this matter.
IRCA was designed to curb the influx of undocumented immigrants by
creating a regime of sanctions against employers that hire them. Toward this
end, the Act requires employers to verify the identity and eligibility of
employees at the time of hiring by examining certain documents. 8 U.S.C. §
1324a(a)(1)(B), (b). Well-meaning employers are provided with significant
legal protection at the hiring stage because they are allowed to assert “good
faith” compliance with IRCA as an affirmative defense to liability. Id. §
1324a(a)(3). IRCA also declares that requesting “more or additional
documents” at hiring than those specifically identified in the Act “shall be
treated as an unfair immigration-related employment practice.” Id. §
1324b(a)(6). After the employment relationship is established, IRCA makes it
unlawful to “continue to employ [an] alien in the United States knowing the
alien is (or has become) an unauthorized alien with respect to such
employment.” Id. § 1324a(a)(2).
Employer sanctions, however, represent only one side of the IRCA coin.
When IRCA was initially debated, advocates and members of Congress voiced
widespread concerns that the Act would become a tool of invidious
-12-
discrimination against Hispanic-Americans and other minorities. Although the
original bill introducing IRCA did not contain strong anti-discrimination
measures, the full House voted to include a significant anti-discrimination
amendment. See H.R. Rep. No. 99-682(II) (1986), pt. 2, at 12 (1986),
reprinted in 1986 U.S.C.C.A.N. 5757, 5761. Explaining its support for this
amendment, the House Committee on Education and Labor stated:
The [committee] strongly endorses [the anti-discrimination
amendment] and . . . has consistently expressed its fear that the
imposition of employer sanctions will give rise to employment
discrimination against Hispanic Americans and other minority
group members. It is the committee’s view that if there is to be
sanctions enforcement and liability there must be an equally
strong and readily available remedy if resulting employment
discrimination occurs.
Id.
In adopting the House amendment to the bill, the Joint Senate and House
Conference Committee (“Conference Committee”) agreed “[t]he
antidiscrimination provisions of this bill are a complement to the sanctions
provisions, and must be considered in this context.” H.R. Conf. Rep. No. 99-
1000 (1986), reprinted in 1986 U.S.C.C.A.N. 5840, 5842. It went on to
explain that the provisions “broaden[ ] the Title VII protections against national
origin discrimination, while not broadening the other Title VII protections,
because of the concern of some Members that people of ‘foreign’ appearance
might be made more vulnerable by the imposition of sanctions.” Id. (emphasis
added).
-13-
Because members of Congress believed that IRCA might not in fact
prompt employers to discriminate and the anti-discrimination provisions could
thus be unnecessary, the Conference Committee adopted a clause providing,
“[t]he antidiscrimination provisions would . . . be repealed in the event of a
joint resolution approving a [General Accounting Office] finding that the
sanctions had resulted in no significant discrimination.” Id. at 5843; see 8
U.S.C. § 1324b(k)(2). In 1990, the General Accounting Office (“GAO”)
released a report to Congress, finding IRCA had indeed resulted in a “serious
pattern” of national origin discrimination. GAO, Employer Sanctions and the
Question of Discrimination 5 (1990) (“GAO estimates that 461,000 (or 10
percent) of the 4.6 million employers in the survey population nationwide
began one or more practices that represent national origin discrimination.”).
Thus, IRCA – as enacted, and as it stands today – declares that “[i]t is an unfair
immigration-related employment practice for a person or other entity to
discriminate against any individual . . . with respect to the hiring, or
recruitment or referral for a fee, of the individual for employment or the
discharging of the individual from employment . . . because of such
individual’s national origin.” 8 8 U.S.C. § 1324b(a)(1)(A). 9
8
Although the concurrence looks to numerous external sources, including
the New York Times, to illuminate the purposes and effects of IRCA, it neglects
to carefully consider the anti-discrimination provisions of IRCA itself. It
maintains that because “Zamora has not pursued” the administrative procedures
(continued...)
-14-
The concurrence would go far in insulating employers from national
origin discrimination claims. It suggests that because employers face sanctions
for knowingly continuing to employ unauthorized aliens, employers should be
given a virtual safe-harbor against Title VII claims for investigating an
employee, so long as they cite IRCA to defend their actions. Assuredly,
employers should undertake meaningful investigation if an employee’s lawful
work status is legitimately called into question. However, fear of sanction for
“knowing” employment of unauthorized aliens cannot justify discriminatory
precautionary measures. Indeed, regulations implementing IRCA expressly
warn employers:
Knowledge that an employee is unauthorized may not be inferred
from an employee’s foreign appearance or accent. Nothing in [the
definition of knowing] should be interpreted as permitting an
employer to request more or different documents than are required
under section 274A(b) of the Act or to refuse to honor documents
tendered that on their face reasonably appear to be genuine and to
relate to the individual.
8
(...continued)
set forth in § 1324b, “[t]hese provisions are thus not at issue in this case.”
(Concurring Op. 14, n.7.) IRCA expressly provides that these procedures apply
only to claims that cannot be brought under Title VII. 8 U.S.C. § 1324b(a)(2)(B).
Although I agree that the anti-discrimination provisions have not been directly
placed at issue in this case, these provisions are indispensable in any serious
discussion of the Act.
9
I do not suggest that IRCA’s anti-discrimination provisions necessarily
guide our analysis. This dissent merely points out that allowing employers to cite
IRCA concerns as a shield against Title VII claims is not contemplated by IRCA
itself.
-15-
8 C.F.R. § 274a.1(1)(2). 10
Adopting the concurrence’s approach would undoubtedly narrow the
scope of recovery for national origin discrimination claims. This result thwarts
Congress’s clear intent in passing IRCA to “broaden[ ] the Title VII protections
against national origin discrimination” and to prescribe a “strong and readily
available remedy” for such discrimination. H.R. Conf. Rep. No. 99-1000
(1986), reprinted in 1986 U.S.C.C.A.N. 5840, 5842; H.R. Rep. No. 99-682(II)
(1986), pt. 2, at 12 (1986), reprinted in 1986 U.S.C.C.A.N. 5757, 5761. Due
consideration of IRCA does not and should not preclude examination of
whether Zamora presented evidence sufficient to reach a jury on his Title VII
10
As the concurrence notes, some courts have held that em ployers violate
§ 1324a(a)(2) when they have “constructive knowledge” of an employee’s
unauthorized work status and yet continue to employ that individual. See, e.g,
New El Ray Sausage Co., v. IN S, 925 F.2d 1153, 1157-58 (9th Cir. 1991).
However, no court has held that a credit check revealing only that an employee’s
SSN was used by another person constitutes “constructive knowledge” of a
person’s unauthorized work status. Nor do the government’s actions under IRCA
support this broader view of “constructive knowledge.” The concurrence suggests
that the government’s adoption of social security verification in its Basic Pilot
Program supports Elite’s actions. (Concurring Op. 15-18.) To the contrary, this
argument ignores significant differences between the government’s Basic Pilot
Program, which requires employers to verify employee SSNs with the federal
government, and the ad hoc approach used by Elite. At no point before Zamora’s
suspension did Elite or anyone else attempt to verify Zamora’s SSN by contacting
the Social Security Administration (“SSA ”). Instead, Elite hired independent
contractors to run checks on his SSN information. Only the SSA can conclusively
identify the proper holder of a given SSN – recognizing this, the independent
contractor employed by Elite instructed the company to verify the number w ith
the SSA and provided a telephone number for the agency.
-16-
claims.
B
As explained above, this case is decided at the last step of the
McDonnell Douglas framework. At this stage we determine whether a plaintiff
has produced sufficient evidence from which a jury could conclude that the
employer’s proffered reason for the adverse employment action is pretext.” 11
Pretext may be established by showing “such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the employer’s proffered
legitimate reasons for its actions that a reasonable factfinder could rationally
find them unworthy of credence and hence infer that the employer did not act
for the asserted non-discriminatory reasons.” Morgan v. Hilti, Inc., 108 F.3d
1319, 1323 (10th Cir. 1997) (quotations and citations omitted). Although there
is no standard method for proving pretext, plaintiffs generally rely on three
types of evidence: (1) evidence that the defendant’s proffered reason was false,
(2) evidence that the defendant acted contrary to a written company policy
prescribing the action to be taken by the defendant under the circumstances, or
(3) evidence that the defendant acted contrary to an unwritten policy or
11
Contrary to the concurrence’s suggestion, a showing of pretext alone will
generally suffice. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S.
133, 148 (2000) (“[A] plaintiff’s prima facie case, combined with sufficient
evidence to find that the employer’s justification is false, may permit the trier of
fact to conclude that the employer unlawfully discriminated.”); Randle v. City of
Aurora, 69 F.3d 441, 451-53, 452 n.16 (10th Cir. 1995).
-17-
contrary to company practice when making the adverse employment decision
affecting the plaintiff. Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220,
1230 (10th Cir. 2000).
Zamora has consistently argued that Elite’s proffered reason for his
suspension – a desire to verify Zamora’s right to work in the United States – is
pretextual. In support of his allegation of pretext, he identifies four pieces of
evidence. First, Zamora points to Tucker’s own admission that concern over
Zamora’s right to work did not underlie his decision to continue Zamora’s
suspension. Zamora contends that this admission demonstrates that Tucker did
not have a good faith belief in the proffered justification of IRCA compliance.
Second, Zamora notes that Elite’s May 10, 2002 written memorandum
informed him that a naturalization certificate would be sufficient to clear up
concerns over his work status. In rejecting Zamora’s proffer of a naturalization
certificate, Elite thus violated its own written policy. Third, although a neutral
decisionmaker would realize the fact that someone else had used Zamora’s SSN
did not resolve whether Zamora was the perpetrator or the victim of identity
theft, Zamora testified that Tucker accused him of stealing someone else’s SSN
despite Zamora’s protestations to the contrary. Tucker’s immediate conclusion
that Zamora stole his SSN could reasonably support an inference of
discriminatory intent on the part of Tucker. Finally, Zamora has shown that
Elite has acted contrary to its alleged good-faith attempt to comply with IRCA,
-18-
even during the period of his suspension. After Zamora vigorously asserted
that his original social security number was correct and true, Tucker instructed
Zamora to return to him with a different SSN. Together this evidence
demonstrates “weaknesses, implausibilities, inconsistencies, incoherencies, or
contradictions” in Elite’s proffered reason of IRCA compliance, such that a
reasonable factfinder could find that reason “unworthy of credence.” Morgan,
108 F.3d at 1323.
The concurrence ignores the last two showings in its discussion and
seeks to discredit the first two pieces of evidence by interpreting them in
“context.” The concurrence first attempts to undermine Tucker’s admission.
On this point, Tucker testified:
Q: And the reason [a document from the INS that shows Zamora
applied for naturalization did not satisfy you] is because it does
not explain away the concerns you had about his social security
number?
A: That is correct.
Q: Okay. So would it be fair to say that the problem with the
social security number is that it points to a potential that, in fact,
[Zamora] is not entitled to work in this country?
A: What I had was a social security number that indicated three
different people may have used the number at three different
points in time. I wanted to ascertain with certainty that that
number belonged to Mr. Zamora.
Q: Okay. So, it wasn’t really a concern about whether [Zamora]
is entitled to work in this country, it was a concern about is he
using the correct social security number?
-19-
A: Yes, sir.
(Appellant Supp. App’x 67.) Making all reasonable inferences in favor of
Zamora, this exchange may be reasonably interpreted as a concession by
Tucker that he was not concerned with Zamora’s lawful right to work in this
country as of May 22, 2002. Tucker’s answers to both the second and third
questions demonstrate that he viewed his concern with Zamora’s lawful work
status as distinct from a concern with the validity of his SSN. 12 From this
12
Other evidence in the record corroborates that Tucker did not equate his
concern about an incorrect SSN with concern over Zamora’s showing of identity
under IRCA. Tucker testified that an employee could establish identity for the
purposes of IRCA by presenting a valid document with a photograph:
Q: So if you have a driver’s license or some other kind of approved
document with your photograph on it, that might comply with the
identification requirement, correct?
A: That is correct.
Q: But that would not necessarily comply with the right-to-work
requirement?
A: That is correct.
Q: And for the right-to-work requirement, there are other
documents set out in the I-9 form that are acceptable for an
employer?
A: Yes, sir.
Q: And one of those is a social security card issued by the Social
Security Administration?
A: That’s correct.
(continued...)
-20-
exchange, a reasonable factfinder could determine that Tucker was not
concerned about Zamora’s right to work when he prolonged Zamora’s
suspension.
Although it cannot escape Tucker’s own admission, the concurrence
appears to argue: (1) because Tucker had concerns about whether Zamora was
using someone else’s SSN, Tucker must have doubted Zamora was the person
identified by his documents; and (2) because IRCA mandates an employer to
confirm both identity and work eligibility, Tucker’s SSN concern was
equivalent to his concern over IRCA compliance. (Concurring Op. 25-29.)
Both arguments are justified by the concurrence as providing “context.”
However, attributing this understanding to Tucker requires a tortured reading of
his deposition testimony. It is true that IRCA necessarily concerns an
12
(...continued)
(Appellant Supp. App’x 51.) Tucker later emphasized that he understood
that identity theft did not implicate a person’s right to work:
Q: Okay. W ould you agree with me that it was also possible that
somebody else was illegally using M r. Zamora’s
social security number.
A: Yes, sir. It’s entirely possible.
Q: If that was the case, then that would not affect his right to work
or should not affect his employment status at Elite at all, should it?
A: That is correct.
(Appellant Supp. App’x 72.)
-21-
individual’s identity, to the extent that an employee must establish that she is
the person named in her work-authorization document. But unless Tucker
believed that the work-authorization documents presented by Zamora on May
22, 2002 in fact identified Zamora, his concern over Zamora’s right to work
could not reasonably have been alleviated by those documents. Tucker clearly
stated that as of May 22, 2002, he was not concerned about Zamora’s right to
work in this country but was concerned about Zamora’s use of a correct SSN.
To conflate these concerns ignores both Tucker’s testimony and our obligations
to the non-moving party at the summary judgment stage.
In addition, the concurrence also attempts to explain away the fact that
Elite contravened written policy in rejecting Zamora’s proffer of a
naturalization certificate. It concedes that “the Elite memorandum, read in
isolation, might suggest some sort of inconsistency,” but proceeds to draw
inferences and make arguments in favor of Elite. (Concurring Op. 30-31.)
Because the memorandum noted that Zamora’s documents were questionable,
and because Zamora was told he needed to clear up the “discrepancy,” the
concurrence claims inconsistency between Tucker’s actions and the
memorandum should be overlooked.
-22-
The contextual hues lent by the concurrence amount to impermissible
inferences drawn in favor of Elite.13 Although these arguments may persuade a
jury, our role as judges at the summary judgment stage requires us to accept
Zamora’s competing, plausible interpretations of the evidence. Because I differ
with the concurrence in considering the facts in the light most favorable to
Zamora, I conclude that a reasonable jury could find Elite’s proffered reason of
IRCA compliance is pretextual.
Judges Holloway, Henry, Briscoe, and Murphy join in this dissent.
13
I do not suggest that deposition statements should never be considered in
context. In fact, the deposition testimony in footnote tw elve of this dissent is
cited to provide context for Tucker’s statement admitting that he no longer had
concerns over Zamora’s right to work and drawing a distinction between that
concern and the SSN issue. However, the concurrence improperly cites context to
discredit showings of pretext that reasonably support the non-moving party, even
in light of all the evidence.
-23-
Zamora v. Elite Logistics, Inc.
Court: Court of Appeals for the Tenth Circuit
Date filed: 2007-02-26
Citations: 478 F.3d 1160
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