Shaikh v. Vision Systems Group, Inc., 2004-LCA-5 (ALJ Apr. 1, 2004)

U.S. Department of Labor

Office of Administrative Law Judges 2 Executive Campus, Suite 450 Cherry Hill, NJ 08002 (856) 486-3800

Issue Date: 01 April 2004
CASE NO.: 2004-LCA-00005

In the Matter of:

MOHAMMED SHAIKH,
   Prosecuting Party,

   v.

VISION SYSTEMS GROUP, INC.,
   Respondent.

Appearances: Mohammed Shaikh
   Pro Se

Gary S. Pasricha, Esquire
    For Respondent

Before:
   RALPH A. ROMANO
   Administrative Law Judge

   This matter arises under the Immigration and Nationality Act, as amended, 8 U.S.C. § 1182(n) (2001) ("INA" or "the Act"), and the regulations promulgated thereunder at 20 C.F.R. Part 655, Subparts H and I. The case involves a complaint by Mohammed Shaikh ("Prosecuting Party" or "Mr. Shaikh") filed against Vision Systems Group, Inc. ("Respondent")¹ with the Department of Labor ("DOL"), Administrator, Wage and Hour Division ("Administrator"). The Administrator issued a Notice of Determination on October 27, 2003, and it was filed with the Office of Administrative Law Judges ("OALJ") on October 31, 2003. By facsimile to the OALJ dated November 5, 2003, Mr. Shaikh requested a hearing (ALJX1), and I issued a Notice of Hearing on November 12, 2003, setting the hearing for February 11, 2004 in New York, New York (ALJX2).²

   In the Notice of Determination, the Administrator concluded that Respondent committed the following violations: failed to provide notice of the filing of a LCA (Labor Certification Application) in violation of 20 C.F.R. § 655.734³ and failed to maintain documentation as required by § 655.731(b) and/or § 655.760(c). The Administrator did not assess any civil money penalties against Respondent and is not a party to this action. Mr. Shaikh's request for hearing claims that he is owed back wages in excess of $200,000.

   The decision that follows is based upon the testimony at the hearing, all documentary evidence admitted into the record, and the parties' post-hearing briefs.

   Mr. Shaikh testified that Respondent did not accept a resignation he submitted to it on April 18, 2001. (Tr. at 61.) He testified that because he was the highest billing employee for Respondent in 2000, Respondent would not accept his resignation. (Tr. at 61-62.) He stated that his employment relationship was not severed as of April 18, 2001, because Respondent did not follow the regulations. (Tr. at 61-62.) He, moreover, stated that even if the employment relationship was severed as of April 18, 2001, there was an implied continued employment relationship created after that time by Respondent's failure to notify INS of the terminated employment relationship, and Respondent's failure to provide him with a return plane ticket to his country of origin. (Tr. at 62.) He also stated that Respondent's act of applying to extend his H-1B visa after April 18, 2001 evidences an ongoing employment relationship. (Tr. at 63-64.) In further support of this last proposition he stated that he possesses a November, 2001 e-mail and a March, 2002 letter wherein Respondent stated that he is its employee.⁴ (Tr. at 64-66.)

   When I questioned Mr. Shaikh about his employment, he stated that he worked for Worldres from April 18, 2001 for about three weeks hence. (Tr. at 70.) He also stated that he worked for Seisent for four to six weeks in July or August of 2001. (Id.) Later, he stated that he had an agreement with Respondent that he would do something "… that would get [him] fired for incompetence," from Worldres. (Tr. at 128.)

   Upon cross-examination, Respondent showed Mr. Shaikh several documents. Mr. Shaikh identified an April 3, 2001 e-mail to Respondent and admitted that as of the date of that e-mail, he intended to "rejoin" Respondent in the future. (Tr. at 72-74.)⁵ Next, Mr. Shaikh identified a timesheet (RX2) which showed his hours between April 2, 2001 and April 18, 2001 and contained his handwritten remarks and signature. (Tr. at 75.)⁶

   He next identified e-mail correspondence dated April 16, 2001 between himself and a representative of Worldres. (Tr. at 78; RX3.) He stated that he had worked at Worldres as a consultant placed by Respondent for five or six months before April, 2001. (Tr. at 78.) He stated that Worldres offered him employment and that he was going to join them as an H-1B employee working at least 40 hours a week. (Tr. at 78-79.) He stated that he was supposed to join Worldres after his H-1B was approved, that it was approved on 4/19/01, and that he worked for them for three weeks until he was terminated for incompetence. (Tr. at 79-80.)⁷ Mr. Shaikh did not remember the results of a DOL investigation that he initiated against Worldres. (Tr. at 89.)⁸

   Respondent next questioned Mr. Shaikh concerning an April 16, 2002 e-mail and attached document he sent to Respondent. (Tr. at 93-94; RX8.) Mr. Shaikh sent the document to Respondent for his opinion and his advice. (Tr. at 94.) The attachment concerned a business Mr. Shaikh was planning on setting up. (Id.)

   Respondent next questioned Mr. Shaikh about August 5, 2003 e-mail correspondence between Mr. Shaikh and a DOL Investigator.⁹ (Tr. at 101-03.) Mr. Shaikh admitted that although he made no written demands to Respondent before May of 2002 for payment of salary, he did make "verbal demands." (Tr. at 103-04.)

   Mr. Shaikh identified RX11 as an e-mail he had written on September 21, 2002.¹⁰ (Tr. at 105-08, 111.)

   Lastly, Respondent showed Mr. Shaikh RX13. (Tr. at 122-125.) Mr. Shaikh identified RX13 as an e-mail he sent to Respondent on November 11, 2002.¹¹ (Tr. at 122.)

       Respondent's Testimony

   Viswa Mandalapu is the CEO of Respondent. (Tr. at 130.) He started the company approximately five years ago and hired Mr. Shaikh in July, 1999. (Tr. at 130-31.) He described the Respondent as a consulting and placement company. (Tr. at 131.)

   He stated that Mr. Shaikh worked for him until April 18, 2001, but not continuously. (Tr. at 131-32.) He noted that at some point up until March or April, 2000, Mr. Shaikh worked for RCM, not Respondent. (Tr. at 131-32.) He testified that he had always maintained a good relationship with Mr. Shaikh and never asked him to get fired from Worldres. (Tr. at 132-33.) He testified that he interpreted RX2 as a resignation effective April 18, 2001. (Tr. at 134.) He testified that after the April, 2001 resignation he attempted to market Mr. Shaikh, not only because he wanted to help him, but also because he would get a referral fee as part of his placement business. (Tr. at 180-81.)

   He testified that he was blank carbon copied on RX3, the April 2001 e-mail correspondence between Worldres and Mr. Shaikh. (Tr. at 135.) He stated that he was involved in Worldres's hiring of Mr. Shaikh. (Tr. at 135-36.)

   He testified that Mr. Shaikh made no demands for payment of unpaid salary between April, 2001 and April, 2002. (Tr. at 136.) He testified that Mr. Shaikh and he had a friendly relationship between April 2001 and April 2002. (Tr. at 140.) He stated, however, that he never asked Mr. Shaikh to work for Respondent after April, 2001. (Tr. at 140-41.) When Mr. Shaikh asked him to apply to extend his H-1B visa, he obliged him because he wanted to help him and he had a good relationship with him. (Tr. at 141, 179.)

   He stated that Mr. Shaikh contacted him in April, 2002. (Tr. at 146-47.) Although Mr. Shaikh denies authoring it, Respondent identified RX7 as an e-mail he received from Mr. Shaikh.¹² (Tr. at 147-48.) Respondent received the e-mail immediately before he departed for India on April 16, 2002. (Tr. at 149.) He explained that he was shocked by the e-mail. (Tr. at 151.) He explained that the $70,000 mentioned in the e-mail was sought to finance the business proposal that Mr. Shaikh sent to him. (Tr. at 152, RX8.)

   Next, Respondent identified RX18 as a $10,000 "loan" check to Mr. Shaikh made with Respondent's knowledge.¹³ (Tr. at 157-60.) Respondent stated that he made this "loan" out of fear for his family and because he was in India and could not protect his family. (Tr. at 160-61.)

   Respondent identified RX22 as a police report that he filed with the Franklin Township, New Jersey police. (Tr. at 167-68.) He explained that he filed it because he was worried about his family's safety. (Tr. at 170.)

   Respondent discussed RX9 and RX23. (Tr. at 171-74.) These were documents from the California Employment Development Department. RX9 notes that Mr. Shaikh noted his last day worked as "4/18/01" and provided the following reason for separation: "the employer did not have any more work for me due to which he let me go he did not pay for several weeks following which I quit." (RX9.)

   While I might be inclined to understand Mr. Shaikh's assertions that Respondent's application to extend his H-1B in July, 2001 (RX15) and marketing his resume after April 18, 2001 suggests an ongoing employment relationship, I find that Respondent has presented a far more rationale explanation for these actions. Viswa gave credible testimony that he maintained a good relationship with Mr. Shaikh. (Tr. at 132-33.) He, moreover, was credible in his testimony that he applied to extend Mr. Shaikh's H-1B as a result of that good relationship.¹⁴ (Tr. at 141, 179.) This good relationship as well as the placement aspect of Respondent's business is also explanation enough for why Respondent marketed Mr. Shaikh's resume in November, 2001 and helped Mr. Shaikh find employment. (PPX2; Tr. at 135-36; Tr. at 180-81.)

    Furthermore, Respondent has presented evidence that seriously undermines Mr. Shaikh's credibility. Respondent gave credible testimony and presented credible evidence that it was Mr. Shaikh who contacted him in April 2002 in an attempt to extract money from Respondent. (RX7; RX17; RX19; Tr. at 146-52.) Respondent offered into evidence a $10,000 check from Respondent made out to Mr. Shaikh, suggesting that such attempt was in-part successful. (RX8.) While Mr. Shaikh's denies writing the threatening e-mail, he acknowledges receiving the check (one of the e-mails made reference to collecting $10,000)(RX17). Because Mr. Shaikh received $10,000 from Respondent within days of this e-mail, I doubt that Mr. Shaikh's account of the events surrounding his resignation is credible. Accordingly, I give Respondent's account more weight and find that there was a bona fide termination (as a result of Mr. Shaikh's resignation) of the employment relationship as of April 18, 2001.

   Moreover, while Mr. Shaikh has portrayed the November 8, 2001 and April 3, 2001 e-mails from Respondent (PPX2; RX1) as written assertions of his continued employment with Respondent, I find that these e-mails represent, at most, negotiations relative to a possible return to work with Respondent. This conclusion is supported by the fact that Mr. Shaikh himself, in the April 3, 2001 e-mail, speaks of "rejoining you about a year down the line." (RX1.) This statement evidences Mr. Shaikh's understanding that any employment relationship that had existed was soon coming to an end.

   Mr. Shaikh has also asserted that he worked concurrently for both Respondent and other employers during the period April 19, 2001 to August 26, 2002. (Tr. at 112-20.) Mr. Shaikh asserts that at certain unspecified times he worked for Respondent's California office "remotely." (Tr. at 114.) His assertion, however, is undermined by Viswa's credible testimony that Respondent's California office is "only a sales office." (Tr. at 140.) In as much as Mr. Shaikh has attempted to characterize any of his post-April 18, 2001 work, as remote work for Respondent, I find that his testimony is outweighed by Viswa's credible testimony to the contrary. (Tr. at 140-41.)

¹ For purposes of this Decision and Order I use Respondent interchangeably to mean both Vision Systems, Inc. and Viswa Mandalapu, the CEO of Respondent. In certain instances I will refer to Mr. Mandalapu as "Viswa."

² The transcript of the 11 February hearing will be cited as "Tr.--." Received into evidence at the time of the hearing were 17 Administrative Law Judge Exhibits, three Prosecuting Party Exhibits, and 25 Respondent Exhibits. (Tr. at 12, 41-47, 72-178.) The exhibits were marked and will be cited throughout this Decision and Order as follows: "ALJX1-ALJX17," "PPX1-PPX3," and "RX1-RX25." I did not receive RX6 into evidence and accordingly will not consider it.

   At the time of the hearing, I left the record open to allow Mr. Shaikh the opportunity to submit certain additional exhibits. I authorized ten days for the submission of an e-mail wherein Respondent allegedly admitted that Mr. Shaikh was its employee, a completed version of RX10, and a certain e-mail to Mr. Shaikh from Javed Sopariwala. (Tr. at 55-56, 100-101, 199-200.) Mr. Shaikh faxed various documentation to the undersigned on February 13, 17, 18, and 19, 2004. On February 20, 2004, Mr. Shaikh faxed a closing statement attached to which was some of the documentation he had submitted in the February 13, 17, 18, and 19 facsimile transmissions. I have reviewed all of the documentation that was included in the facsimile transmissions as well as that which was attached to the February 20 closing statement. Upon review, I find nothing that was authorized at the time of the February 11 hearing. Accordingly, I will not consider any of Mr. Shaikh's post-hearing evidentiary submissions.

   On February 19, 2004, Respondent attempted to submit an audio tape to rebut Mr. Shaikh's post-hearing evidence. Because I do not receive any of Mr. Shaikh's post-hearing submissions into evidence and I did not authorize submission of the audio tape at the hearing, I will not receive the audio tape.

³ Unless indicated otherwise, all applicable regulations which are cited in this Decision and Order are included in Title 20, Code of Federal Regulations, and are cited by part or section only.

⁴ PPX2 is a packet of e-mail correspondence that Mr. Shaikh submitted. I have read it in its entirety. Mr. Shaikh submitted this correspondence in an effort to show an ongoing employment relationship with Respondent. In a November 8, 2001 e-mail, Respondent sends to someone named "Vasavi Pepapudi" Mr. Shaikh's resume. (PPX2.) In this same correspondence Respondent writes "Sharique [Mr. Shaikh] told me that he submitted the resume and he is our own employee and has been working with us for 2 yrs. I can fax H1B copy too." (Id.)

⁵ In the e-mail, Mr. Shaikh writes the following:

*** Did you initiate the process to extend my H1, or would you like to wait for Worldres to transfer and extend my H1, and then bring me back on board on my EAD? I'm open either way, and would actually prefer waiting for my 485 and then rejoining you about a year down the line. Is this OK with you? Do let me know what your thoughts are. Please advise as to when will you be sending the check across.

Sincerely,

Sharique

(RX1.)

⁶Mr. Shaikh admits that the timesheet shows that he "intended to quit." (Tr. at 75.) He wrote the following on the bottom of the timesheet:

Hi Viswa,

My transfer is effective 4/19/01, so please go ahead and process my payroll till 4/18/01. Thanks for being a nice friend & for being there when I needed you.

M.S.

(RX2.) Mr. Shaikh stated that he started work at Worldres on "4/19/01." (Tr. at 76.)

⁷ Included with Respondent's exhibits was the May 14, 2001 termination letter from Worldres to Mr. Shaikh. (Tr. at 81-85; RX4.)

⁸ Included with Respondent's exhibits was a complaint initiated by Mr. Shaikh against Worldres. (RX5.)

⁹ In the August 5, 2003 e-mail the investigator asks Mr. Shaikh whether he has any e-mails or letters evidencing his asking Respondent for unpaid salary. (RX10.) Respondent admits that he does not. (Id.)

¹⁰ I have read this e-mail in its entirety. To summarize, Mr. Shaikh outlined a course of action he planned to take if Respondent did not pay him what he thought he was owed.

¹¹ The e-mail can best be characterized as an attempt to extract money from Respondent. In it, Mr. Shaikh threatens various civil and criminal charges. A highlighted portion reads, "I would not be very happy seeing you in prison, and wish to avoid it if you settle my claims." (RX13.)

¹²I received RX7, RX17, and RX19, three e-mails, into evidence. (Tr. at 148, 156, 162.) The e-mails were sent from the following address: jaycs26@yahoo.com. The author of RX7 sought a (footnote 12 continued) $70,000 loan and threatened to report Respondent to various government agencies. The author of RX17 wrote the following in the subject line of the e-mail: "will meet with chandra on thursday evening to collect 10 K." (RX17.) Chandra is "vice president" of Respondent Company and also Viswa's "younger brother." (Tr. at 156.) RX19 is an e-mail wherein the author writes the following: "I thought we had agreed on 2 checks, but I am disappointed that despite us agreeing on the phone, I got just 1." (RX19.) RX20 and RX21 are additional e-mails sent from the above noted e-mail address to Respondent seeking money and threatening Respondent. (Tr. at 163-66.) Again, Mr. Shaikh denies authoring them.

¹³ RX18 is a check for $10,000 made out to Mr. Shaikh and drawn on the account of Chandra Mandalapu. (RX18.) Mr. Shaikh's signature appears to be on the endorsement line of the check. (Id.)

¹⁴ Respondent admittedly applied for an extension of Mr. Shaikh's H-1B visa in July, 2001 and admittedly failed to notify the INS of Mr. Shaikh's April, 2001 resignation. (Tr. at 133, 141, 179-80, RX15.) Respondent, however, upon receiving notification that the extension had been approved (RX15), notified the INS that Mr. Shaikh was not its employee (RX16). Given that Worldres offered to pay Claimant's repatriation expenses ("[c]onsistent with federal immigration laws, a plane ticket covering your return to India is available for you to pick up …") upon the termination of his employment on May 14, 2001 (RX4), I am further convinced that, consistent with Viswa's testimony, as of April 18, 2001, Mr. Shaikh was no longer an employee of Respondent.