OCAHO Finds Employer Engaged in a Pattern and Practice of Document Abuse

The Office of the Chief Administrative Hearing Officer (OCAHO), one of three adjudicative components within the Executive Office for Immigration Review (EOIR), is charged with, among other things, adjudicating unfair immigration-related employment practices claims under INA § 274B [8 USCA § 1324b]. In U.S. v. Life Generations Healthcare, LLC d/b/a Generations Healthcare, 11 OCAHO 1227 (Sept. 11, 2014), OCAHO Administrative Law Judge (ALJ) Ellen K. Thomas found that Life Generations Healthcare, LLC d/b/a Generations Healthcare (GHC), a California company which manages and operates assisted living and skilled nursing facilities, engaged in a pattern and practice of document abuse against foreign-born work-authorized individuals based on citizenship status by requesting that they present List A documents and by requesting that they present more or different documents than are required to satisfy the requirements of the employment eligibility verification system. While a cease and desist order is mandatory in such cases, other remedies are discretionary. Accordingly ALJ Thomas ordered the parties to confer in an effort to reach agreement as to what discretionary remedies are appropriate and to file a report with OCAHO on or before November 7, 2014, advising it (1) whether and to what extent they have reached agreement, (2) what issues remain to be resolved, (3) whether they can stipulate to any of the underlying facts, and (4) whether there are genuine issues of material fact remaining that require another hearing and, if so, what those issues are.

The Department of Justice’s (DOJ’s) Office of Special Counsel for Unfair Immigration-Related Employment Practices (OSC) filed a three-count complaint against GHC. Count I alleged that GHC discriminated against Carmen Chavez and other foreign-born, work-authorized individuals based on their citizenship status and/or national origin by requiring them to produce more or different documents to establish their identity and work authorization or by refusing to honor documents tendered that on their face reasonably appeared to be genuine. Counts II and III alleged that the company engaged in a pattern or practice of document abuse against foreign-born, work-authorized individuals since at least January 1, 2008, by requesting specific documents (Count II) or by requesting more or different documents than are required under the employment eligibility verification system (Count III). GHC filed an answer denying the material allegations of the complaint. The parties agreed to a bifurcated hearing.

GHC, during the time at issue, employed between 2,400 and 3,000 employees in its 18 facilities located throughout California. On September 1, 2007, GHC acquired St. Francis Convalescent Pavilion (Pavilion) in Daly City, California. As a result, the employees already working at Pavilion became new employees of GHC, and the company completed new-hire documentation for them, including new I-9 forms. During the acquisition process, Teresa Green and her assistant, Leanne Hanson, traveled from GHS headquarters to Daly City and took responsibility for completing new I-9 forms for the existing employees there. In mid-September 2007, however, those I-9 preparation duties were reassigned to Lani Pulmano and Regina Czerwinski, directors of staff development at Pavilion, and GHC provided training on completing I-9s.

Carmen Chavez is now a U.S. lawful permanent resident, but at the time of the events in question she was a work-authorized alien and a former employee of Pavilion. She reapplied for work as a certified nurse assistant (CNA) at Pavilion on two occasions after GHC acquired Pavilion, and in neither instance was she hired. Chavez thereafter filed a charge with the OSC alleging that GHC discriminated against her by refusing to accept a valid work authorization document. On November 3, 2010, Chavez received notice by certified mail from the OSC that the OSC was continuing its investigation of her charge and that she had the right to file her own complaint. Chavez did not file an individual complaint, but the OSC continued its investigation and, after a series of extensions agreed to by GHC, ultimately filed its OCAHO complaint on September 30, 2011. Chavez subsequently became a party.

During the prehearing stage of the litigation, it became known that at some point after May 2011, Regina Czerwinski had shredded an unknown number of unsuccessful employment applications. Ms. Czerwinski said that she was unaware of the fact that GHC’s in-house counsel had orally instructed her director to preserve these applications. A motion for sanctions was granted based on GHC’s spoliation of these applications, and an adverse inference was adopted that, during the period between August 1, 2009, and May 1, 2010, GHC’s human resources officers asked certain employment applicants whether they had lawful permanent resident cards and requested at least some of those applicants, including Carmen Chavez, to present employment authorization documents, which GHC’s employees photocopied and stapled to the individuals’ applications. The company was precluded from challenging testimony to this effect or from introducing evidence to the contrary at the liability stage. At the hearing on liability, the complainants presented statistical, anecdotal, and comparative evidence, and witnesses testifying on their behalf included two unsuccessful applicants for employment, Carmen Chavez and Dora Martinez; an OSC employee, Joann Sazama; complainants’ expert witness, statistician, and demographer, Dr. Jeanne Gobalet; and a number of current or former GHC employees. Three management witnesses and a number of employee witnesses testified for GHC.

ALJ Thomas concluded that statistical and anecdotal evidence amply demonstrated that, during the period when Lani Pulmano and Regina Czerwinski were in charge of I-9 completion at Pavilion, their standard operating procedure was to require noncitizens and perceived foreign-born individuals to present List A documents as well as to present more and different documents than necessary for the purpose of satisfying the employment eligibility verification system. She found the statistician’s testimony to be both “powerful and persuasive” as to the statistical significance of the disparities reflected in her reports. Further, she found that the anecdotal evidence presented by the testimony of a number of employee witnesses provides additional corroboration that specific and excessive documents were routinely required from U.S. citizens whose documents reflected foreign birth (USC-Fs), lawful permanent residents (LPRs), and aliens authorized to work (AAWs). Specifically, ALJ Thomas found that Pulmano and Czerwinski regularly and purposefully applied more rigorous requirements to persons whom they perceived to be foreign-born than they applied to U.S. citizens whose documents did not reflect foreign birth. She found that, while GHC suggests that any requests for specific or excessive documents were isolated, sporadic, or accidental, this assertion was belied by the bottom line: U.S. citizens were generally hired without having to present List A documents or excessive documents, but no noncitizen was hired without presenting both a List A document and more documents than required to satisfy the requirements of the employment eligibility verification system.

ALJ Thomas noted that, as a general rule, statistical disparities over two or three standard deviations have been held to support an inference of discrimination and that the disparities in this case significantly exceed that measure. Further, she found that GHC was unable either to rebut the complainants’ statistical evidence or to provide a legitimate nondiscriminatory explanation for the acknowledged disparities in the rates of overdocumentation and presentation of List A documents between foreign-born workers and native-born U.S. citizens at Pavilion.

ALJ Thomas she concluded that the complainants carried their burden of proof with respect to Count I by showing that Carmen Chavez and Dora Martinez were subject to prescreening document abuse based on their citizenship status, but the evidence is insufficient to show a pattern or practice for this count. However, she also concluded that, with respect to Counts II and III, the complainants demonstrated by a preponderance of the evidence that GHC engaged in a pattern and practice of document abuse based on citizenship status against foreign-born work-authorized individuals by requesting List A documents and by requesting more or different documents than are required to satisfy the requirements of the employment eligibility verification system.

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