UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW OFFICE OF THE CHIEF ADMINISTRATIVE HEARING OFFICER

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1 UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW OFFICE OF THE CHIEF ADMINISTRATIVE HEARING OFFICER 2a. UNITED STATES OF AMERICA, Complainant, v. OCAHO Case No. 11B00111 MAR-JAC POULTRY, INC. Respondent. -"1:1 8 U.S.C. 1324b Proceeding I ANSWER TO COMPLAINT OF UNFAIR IMMIGRATION-RELATED EMPLOYMENT PRACTICES COMES NOW, Mar-Jac Poultry, Inc. (hereinafter "Respondent" or "Mar-Jac" and J hereby files this Answer to the Complaint of Unfair Immigration-Related Employment Practices filed by the United States of America (hereinafter "Complainant". RESPONSE TO NUMBERED PARAGRAPHS IN COMPLAINT 1. With respect to Paragraph 1, Respondent admits that the Office of Special Counsel for Immigration-Related Unfair Employment Practices ("OSC" has filed the Complaint and denies the remaining allegations. 2. With respect to Paragraph 2, Respondent admits that the employment eligibility verification process is codified under 8 U.S.C. 1324a(b and denies the remaining allegations. 3. With respect to Paragraph 3, Respondent admits that the anti-discrimination provision is codified under 8 U.S.C. 1324b and denies the remaining allegations. 4. With respect to Paragraph 4, Respondent states that the legal provisions speak for themselves and denies the remaining allegations. 1

2 5. Respondent denies the allegations in Paragraph Respondent denies the allegations in Paragraph 6. At the 1-9 stage, consistent with its written policy, Respondent allowed all newly hired employees to present any set of documents that satisfied the 1-9 requirements pursuant to the available options under 8 U.S.C. 1324a, regardless of citizenship status or national origin. Respondent did not have a policy of requiring non-u.s. citizens to produce certain DHS-issued List A documents at the 1-9 stage. 7. With respect to Paragraph 7, Respondent states that the legal provisions speak for themselves and denies the remaining allegations. 8. With respect to Paragraph 8, Respondent admits that Charging Party is a recipient of Temporary Protected Status ("TPS -, denies the remaining allegations, and asserts that Charging Party is not a "protected individual" as defined by 8 U.S.C. 1324b(a(3 because Charging Party is not a citizen, national, permanent resident, temporary resident, asylee, or refugee. Thus OSC lacks jurisdiction to bring this Complaint on behalf of Charging Party or similarly situated individuals. 9. Respondent admits the allegations in Paragraph Respondent admits the allegations in Paragraph With respect to Paragraph 11, Respondent admits that OSC notified Respondent by letter dated December 23, 2010 that on December 13, 2010, OSC "made complete a charge of document abuse filed by (b (6 under 8 U.S.C. 1324b," and denies the remaining allegations. 12. With respect to Paragraph 11, Respondent admits that its counsel received a letter dated February 16, 2011 and an on February 17, 2011 stating, "OSC is expanding this 2

3 investigation to include a possible pattern or practice of document abuse," and Respondent denies the remaining allegations in Paragraph With respect to Paragraph 13, Respondent admits that the Charging Party received Attachment C to the Complaint on April 16, 2011, but Respondent denies that Charging Party is a "protected individual" as defined by 8 U.S.C. 1324b(a(3, denies that Charging Party has standing to file a complaint with Office of the Chief Administrative Hearing Officer ("OCAHO", and denies the remaining allegations. 14. Paragraph 14 is a statement of law concerning jurisdiction under the statute which speaks for itself and does not require a response. To the extent that a response is required, Respondent admits that Complainant is attempting to assert the jurisdiction of OCAHO pursuant to 8 U.S.C. 1324b(e(1. However, Respondent denies that OCAHO has jurisdiction in this matter because the Complaint is based upon Charging Party's charge and the Charging Party is not a "protected individual" as defined by 8 U.S.C. 1324b(a(3 and thus does not have standing to file a complaint with OCAHO. 15. With respect to Paragraph 15, Respondent admits the allegations in the first sentence; admits that, upon Charging Party's request for an employment application, Respondent's human resources personnel requested that Charging Party show a photo ID and a social security card to obtain an employment application; alleges that the request for documents at the application stage is done consistently for all applicants regardless of citizenship status or national origin; and denies the remaining allegations. 16. Respondent admits the allegations in Paragraph Respondent denies the allegations in Paragraph 17. 3

4 18. Respondent denies the allegations in Paragraph With respect to Paragraph 19, Respondent admits Charging Party provided his EAD to Respondent during the orientation process, admits Charging Party met with human resources personnel for purposes of completing the new hire orientation process, and denies the remaining allegations. 20. With respect to Paragraph 20, Respondent admits that, during the post-hire orientation process(b (6 prepared Section 1 of Form 1-9 as the preparer/translator, signed Section 1 as the preparer/translator, and completed Section 2 as the employer representative; denies the remaining allegations in Paragraph 20; and alleges that Charging Party checked the box showing his status and provided the information relating to his status; and alleges that Charging Party signed and dated Section 1 acknowledging that the information is accurate and correct under penalty of law. 21. Respondent admits the allegations in Paragraph Respondent denies the allegations in Paragraph 22; alleges that, in accordance with Respondent's written hiring policies, Charging Party was allowed to present any set of documents that satisfied the 1-9 requirements; and alleges that Charging Party voluntarily presented his EAD to satisfy the 1-9 requirements. 23. Respondent denies the allegations in the first sentence of Paragraph 23 and admits the allegations in the second sentence of Paragraph Respondent admits the allegations in Paragraph Respondent admits the allegations in Paragraph Respondent denies the allegations in Paragraph 26; alleges that it is company policy to allow 4

5 all newly hired employees to present any set of documents of their choosing that satisfy the I- 9 process; alleges that OSC was provided a copy of Respondent's written hiring policies which explain that all new hires can voluntarily choose what documents to produce at the 1-9 stage; alleges that, in accordance with its written policies, Respondent's personnel may not specify which original documents must be presented at the 1-9 stage; alleges that, in accordance with its written policies, Respondent does not discriminate against any individual during the application and hiring process on the basis of citizenship status or national origin; admits Ms. (b (6 did mention that, after the completion of Form 1-9, she would ask noncitizens to provide a copy of their permanent resident cards or employment authorization documents if not already presented by the employee for the Form 1-9; alleges that Ms. (b (6 did this under the mistaken belief that it was necessary to make a copy of such documents to comply with E-Verify program requirements; alleges that no person was ever denied employment based on her requests; alleges that Respondent did not have a company policy of requiring employees to present a List A document for purpose of completing the E- Verify process; alleges that, pursuant to company policy, Respondent's personnel was responsible for notifying employees with temporary work authorization when their authorization was about to expire; alleges that Respondent reminded its employees with temporary work authorization to ensure that they timely applied for or obtained new authorization so that they could continue employment with Respondent; and alleges that Respondent would maintain a copy of the Federal Register notice extending the work authorization of those who held TPS status. 27. Respondent denies the allegations in Paragraph 27 and alleges that the Complaint fails to 5

6 assert any adverse employment action with respect to any of the 571 non-u.s. citizen hires. 28. With respect to Paragraph 28, Respondent incorporates by reference its responses to the allegations in Paragraph 1 through 27 of the Complaint. 29. Respondent denies the allegations in Paragraph Respondent denies the allegations in Paragraph With respect to Paragraph 31, Respondent incorporates by reference its responses to the allegations in Paragraph 1 through 30 of the Complaint. 32. Respondent denies the allegations in Paragraph Respondent denies the allegations in Paragraph Respondent denies the allegations in Paragraph 34. GENERAL DENIAL To the extent a response is required to the Prayer for Relief, it is denied and all other allegations not specifically admitted are hereby denied. FIRST DEFENSE The Complaint fails to state a claim upon which relief may be granted. Thus, Respondent is entitled to a judgment as a matter of law. SECOND DEFENSE OSC does not have jurisdiction to bring a complaint on behalf of the Charging Party or any similarly situated individuals. Charging Party is not a citizen, national, permanent resident, temporary resident, asylee, or refugee. Instead, as admitted in Paragraph 8 of the Complaint, Charging Party is a recipient of Temporary Protected Status pursuant to 8 U.S.C. 1254a(b(1. 6

7 Accordingly, he is not a "protected individual" as defined by 8 U.S.C. 1324b(a(3. In addition, Respondent employs more than 15 employees and therefore is subject to Title VII. Thus, OSC only has authority to investigate Respondent on a charge of document abuse in connection with a violation of 8 USC 1324b(a(1(B. See 8 U.S.C. 1324b(a(6; 28 C.F.R (a(3. There can be no violation of Section 1324b(a(1 with respect to Charging Party because he is not a "protected individual" as defined by 8 U.S.C. 1324b(a(3 and because OSC does not have authority to investigate claims of national origin discrimination since Respondent is covered by Title VII. See 8 U.S.C. 1324b(a(2. Although Respondent has repeatedly requested that OSC provide authority supporting the sufficiency of bringing a complaint on behalf of Charging Party, OSC has provided no such authority and its Complaint is similarly defective. THIRD DEFENSE Because OSC does not have authority to bring a complaint on behalf of Charging Party, OSC has not identified a specific unfair immigration-related employment practice committed by Respondent. FOURTH DEFENSE To the extent that the Complaint asserts unfair immigration-related employment practices occurring more than 180 days prior to the date of the filing of the charge, the statute of limitations under 8 U.S.C. 1324b(d(3 applies. FIFTH DEFENSE Respondent did not knowingly or intentionally discriminate against the Charging Party or other similarly situated individuals on the basis of their citizenship status. 7

8 SIXTH DEFENSE Respondent did not have a policy of requiring non-u.s. citizens to produce specific documents at the 1-9 stage to establish work authorization. SEVENTH DEFENSE The proposed penalty of $1,100 per violation of 8 U.S.C. 1324b(a(6 is excessive and inappropriate because there are no facts to demonstrate that Respondent engaged in any discriminatory document abuse practices that led to any individual suffering an adverse employment action. EIGHTH DEFENSE The Complaint fails to allege that Charging Party or any other similarly situated individuals suffered an adverse employment action related to the alleged discriminatory hiring practices of Respondent as required by 8 U.S.C. 1324b(a. In fact, the Complaint has not identified a single individual who was not hired or who was terminated based on any alleged requests for documents. NINTH DEFENSE The "document abuse" provision set forth under 8 U.S.C. 1324b(a(6 relates to discriminatory document requests made during the 1-9 stage (8 U.S.C. 1324a(b. OSC does not have jurisdiction to bring a complaint for alleged violations of the "document abuse" provisions for actions that allegedly occurred at the E-Verify stage. TENTH DEFENSE Respondent's written hiring and employment policies provide that Respondent does not discriminate against any individuals on the basis of citizenship status or national origin. 8

9 Respondent's policies also explicitly state that it does not specify what document(s a newly hired employee can present at the 1-9 stage to establish work authorization. At the same time, nearly 70% of Respondent's workforce is Hispanic and out of this group, more than 60% are non-citizens. Thus OSC cannot establish that Respondent had a systemic pattern or practice of document abuse that prevented the hiring of non-citizens who are authorized to work in the United States. ELEVENTH DEFENSE The Complaint is without reasonable foundation in law and fact. Thus, Respondent will seek to recover all of its attorney fees and costs related to defending against this action as permitted under 8 U.S.C. 1324b(h. TWELFTH DEFENSE Count I of the Complaint should be dismissed as untimely pursuant to 28 C.F.R (b because the allegations relating to Charging Party occurred during June and July 2010, which is more than 180 days before the filing of the Complaint. THIRTEENTH DEFENSE Count II of the Complaint should be dismissed as untimely pursuant to 28 C.F.R (b to the extent the allegations relate to a time which is more than 180 days prior to the filing of the Complaint and because there are no allegations demonstrating that an unfair immigration-related employment practice occurred within 180 days before the filing of the Complaint. THEREFORE, Respondent requests that the Complaint be dismissed; that all costs, including Respondent's attorney fees defending against this action, be borne by Complainant; that a briefing schedule be established so that Respondent may present its claim for attorney fees and costs; and that Respondent be granted any other relief deemed appropriate. 9

10 This day of August, Wimberly Lawson Steckel Schneider & Stine, P.C Peachtree Road, N.E., Suite 400 Atlanta, Georgia ph: ( fx: ( es W. Wimberly, Jr. Georgia Bar No James L. Hughes Georgia Bar No Ray Perez, Esq. Georgia Bar No Attorneys for Respondent 10

11 UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW OFFICE OF THE CHIEF ADMINISTRATIVE HEARING OFFICER UNITED STATES OF AMERICA, Complainant, v. 8 U.S.C. 1324b Proceeding OCAHO Case No. 11B00111 MAR-JAC POULTRY, INC. Respondent. by U.S. Mail: CERTIFICATE OF SERVICE I hereby certify that I have on this date served Respondent's Answer to the following parties Honorable Ellen K. Thomas Administrative Law Judge U.S. Department of Justice Office of the Chief Administrative Hearing Officer 5107 Leesburg Pike, Suite 2519 Falls Church, VA United States Department of Justice Civil Rights Division Office of Special Counsel for Immigration-Related Unfair Employment Practices 950 Pennsylvania Avenue, NW Washington, DC Attn: Katherine A. Baldwin, Deputy Special Counsel Thomas E. Perez, Assistant Attorney General Seema Nanda, Acting Deputy Special Counsel C. Sebastian Aloot, Acting Special Litigation Counsel Byron Wong, Trial Attorneys Liza Zamd, Trial Attorneys 11

12 (b (6 Mar-Jac Poultry, Inc Aviation Blvd. Gainesville, Georgia Attn: Pete Martin Don Bull This k 0 day of August, Wimberly Lawson Steckel Schneider & Stine, P.C Peachtree Road, N.E., Suite 400 Atlanta, Georgia ph: ( fx: ( jlh@wimlaw.com rp@wimlaw.com ames W. Wimberly, Jr. Georgia Bar No Jim Hughes Georgia Bar No Ray Perez, Esq. Georgia Bar No Attorneys for Respondent 12