10th Circuit En Banc Decision Addresses Intersection Between Title VII and Employers' Obligations Under Immigration Reform & Control Act

In decision that has received attention elsewhere, a deeply divided en banc Tenth Circuit affirmed the district court dismissal of a Title VII claim brought by a Mexican national legally in the United States, who alleged that his employer discriminated against him by suspending him while the employer checked the validity of his social security number, then firing him when he demanded an apology.  Zamora v. Elite Logistics, No. 04-3205.

On the termination claim, all nine of the Republican-appointed judges voted to affirm the dismissal, while all the Democrat-appointed judges dissented.  On the suspension claim, Judges Gorsuch and Holmes parted company with their fellow Republican appointees, resulting in an evenly divided vote and automatic affirmance of the district court's dismissal.

Even viewed in the light most favorable to the plaintiffs, the employer's actions in this case (at least according the statement of facts in the majority opinion) are somewhat understandable.  Although Zamora's social security number and associated documentation were authentic, there were discrepancies among the documents that caused the employer some concern, including the fact that someone else in California had used Zamora's social security number and that the birth dates on some of Zamora's documents did not match.  Moreover, the employer's concern about verifying its employees' authority to work in the United States was driven by its obligations under the Immigration Reform and Control Act.

Judge Ebel's majority opinion is a crisp 15 pages, partly because, in keeping with circuit practice, he omits any substantive discussion of the suspension claim and merely notes that since the court is evenly divided the district court's decision is automatically affirmed.  On the termination claim, the court holds that the employer had a legitimate reason for the termination, and Zamora failed to present evidence that the reasons for the termination were pretextual.

Perhaps to make up for Judge Ebel's brevity, Judge McConnell issued a 37-page concurrence.  In particular, Judge McConnell takes issue with the dissent's recitation of the facts.  "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 happened." 

As to the termination claim, Judge McConnell offered an additional reason for dismissal which goes to the interesting question of employee "ultimatums" and whether it is appropriate to analyze the termination claim and the suspension claim together:  "If Mr. 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.  Title VII provides employees with a method of remedying acts of discrimination, not with a means of creating them."

In dissent, Judge Lucero disagrees with Judge McConnell's analysis, arguing that "[b]ecause 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."  (He also takes issue with Judge McConnell having addressed the suspension claim at all, and pointedly states in a footnote that he disagrees with the characterization of Judge McConnell's "discourse" as a proper concurrence.)  Finally, the dissent argues at some length that the anti-discrimination provisions of the Immigration Reform and Control Act does not contemplate that employers may cite IRCA concerns as a "shield" against Title VII claims.