DECISION & ORDER GRANTING RESPONDENT'S MOTION FOR SUMMARY DECISION
This proceeding involves a claim under the Immigration and Nationality Act, as amended by the Immigration Act of 1990 and 1991, 8 U.S.C. §§ 1101(a)(15)(H)(i)(b), 1182(n) and 1184(c) (hereinafter "the Act"), and the regulations promulgated thereunder at 20 C.F.R. Part 655, Subparts H and I (hereinafter "the Regulations"), brought by Xinming (Sue) He ("Prosecuting Party") against Citigroup ("Respondent").
A. Statutory Framework
The H-1 visa program permits employers to temporarily employ non-immigrants to fill specialized jobs in the United States. The Act requires that an employer pay an H-1B worker the higher of its actual wage or the locally prevailing wage, in order to protect U.S. workers and their wages. Under the Act, an employer seeking to hire an alien in a specialty occupation on an H-1B visa must receive permission from the U.S. Department of Labor ("DOL") before the alien may obtain an H-1B visa. The Act defines a "specialty occupation" as an occupation requiring the application of highly specialized knowledge and the attainment of a bachelor's degree or higher. 8 U.S.C. § 1184(i)(1). To receive permission from the DOL, the Act requires an employer seeking permission to employ an H-1B worker to submit a Labor Condition Application ("LCA") to the DOL. See 8 U.S.C. 1182(n)(1); In the Matter of Eva Kolbusz-Kline v. Technical Career Institute, Case No. 1993-LCA-004, 1994 WL 897284, at *3 (July 18, 1994). Only after the employer receives the Department's certification of its LCA may the INS approve an alien's H-1B visa petition. 8 U.S.C. § 1101(a)(15)(H)(1)(B); 20 C.F.R. § 655.700.
The Act provides that the LCA filed by the employer with the Department must include a statement to the effect that the employer is offering to an alien provided status as an H-1B non-immigrant wages that are at least the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question, or the prevailing wage level for the occupational classification in the area of employment, whichever is greater, based on the best information available at the time of filing the application. 8 U.S.C. § 1182(n)(1)(A).
The Act directs the Department of Labor to review the LCA only for completeness or obvious inaccuracies. Unless the Department finds that the application is incomplete or obviously inaccurate, the Department shall provide the certification described by the Act within seven days of the date of the filing of the application. 8 U.S.C. § 1182(n)(1) and 20 C.F.R. § 655.740.
The Department has promulgated regulations which provide detailed guidance regarding the determination, payment, and documentation of the required wages. See 20 C.F.R. Part 655 Subpart H. The remedies for violations of the statute or regulations include payment of back wages to H-1B workers who were underpaid, debarment of the employer from future employment of aliens, civil money penalties, and other relief that the Department deems appropriate. 20 C.F.R. § 655.810 and § 655.855.
B. Procedural History
The Prosecuting Party, a U.S. worker who is pro se in this matter, filed with the Wage and Hour Division, DOL, an ESA Form WH-4 listing several violations of the H-1B visa program by Respondent.
The Administrator of the Wage and Hour Division issued a determination letter on January 26, 2004, upon conclusion of an investigation, and found that Respondent failed to make available for public examination the LCA and other documents as required. The remedy determined by the Administrator was that Respondent was shall make all required documents available in the future, and no civil money penalty was assessed.
On February 6, 2004, the Prosecuting Party filed a request for a hearing with this Office in regards to the Administrator's determination. The Prosecuting Party alleged, generally, that Respondent was abusing the H1-B visa program by underpaying H-1B workers to the determent of U.S. workers.
A telephone status conference was held on March 26, 2004. At that time, Respondent informed the undersigned and the Prosecuting Party that it would be filing a Motion for Summary Decision. The undersigned stated that the Respondent would have fifteen days to file its motion, and the Prosecuting Party would have fifteen days thereafter to file any response. See Order (March 30, 2004).
Respondent filed its Motion for Summary Decision on April 9, 2004. A timely response was received from the Prosecuting Party on April 23, 2004.
C. Legal Standard
The standard for granting summary decision is set forth at 29 C.F.R. § 18.40(d), which provides:
(d) The administrative law judge may enter summary judgment for either party if the pleadings, affidavits, materials obtained by discovery or otherwise, or matters officially noticed show that there is no genuine issue as to any material fact and that a party is entitled to summary decision.
29 C.F.R. § 18.40(d). See, e.g., Stauffer v. Wal Mart Stores, Inc., ARB No. 99-107, ALJ No. 1999-STA-21 (ARB Nov. 30, 1999) (under the Act and pursuant to 29 C.F.R. § 18 and Federal Rule of Civil Procedure 56, in ruling on a motion for summary decision, the judge does not weigh the evidence or determine the truth of the matter asserted, but only determines whether there is a genuine issue for trial); Webb v. Carolina Power & Light Co., Case No. 1993-ERA-42, at 4-6 (Sec'y July 17, 1995).
This section, which is derived from Fed. R. Civ. P. 56, permits an administrative law judge to grant a summary decision for either party where "there is no genuine issue as to any material fact and a party is entitled to summary decision." 29 C.F.R. § 18.40(d). Thus, in order for Respondent's motion to be granted, there must be no disputed material facts upon a review of the evidence in the light most favorable to the non-moving party (i.e., Prosecuting Party), and Respondent must be entitled to prevail as a matter of law. Gillilan v. Tennessee Valley Authority, Case Nos. 1991-ERA-31 and 1991-ERA-34, at 3 (Sec'y August 28, 1995); Stauffer, supra.
The non-moving party must present affirmative evidence in order to defeat a properly supported motion for summary decision. Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 247 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). It is enough that the evidence consists of the party's own affidavit, or sworn deposition testimony and a declaration in opposition to the motion for summary decision. Id. at 324. The determination of whether a genuine issue of material fact exists must be made viewing all evidence and factual inferences in the light most favorable to the non-moving party. Trieber v. Tennessee Valley Authority, Case No. 1987-ERA-25 (Sec'y Sept. 9, 1993).
The purpose of summary decision is to pierce the pleadings and assess the proof, in order to determine whether there is a genuine need for a trial. An issue is material if the facts alleged are such as to constitute a legal defense or are of such nature as to affect the result of the action. A fact is material and precludes grant of summary judgment if proof of that fact would have the effect of establishing or refuting one of the essential elements of a cause of action or defense asserted by the parties. Where the record taken as a whole could not lead a trier of fact to find for the non-moving party, there is no genuine issue for trial. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
D. Discussion
Initially, the Prosecuting Party argues that Respondent's Motion for Summary Decision should be denied because she had poor cell phone quality during the March 26, 2004 teleconference, and that the Respondent failed to inform the prosecuting party of its intension to file a Motion for Summary Decision during this call. Prosecuting Party's Response, at 2. However, this argument is erroneous because the Respondent did not move for summary decision during the March 26, 2004 conference call. Rather, during the call, Respondent simply informed the undersigned Administrative Law Judge and the Prosecuting Party of its intention to file a Motion for Summary Decision at some point in the future. Because a summary decision could impact the scheduling of a hearing in this matter, the undersigned stated during the conference call that this matter would be scheduled for a hearing after the Respondent's motion and the Prosecuting Party's response was considered. Therefore the parties were told that the Respondent would have fifteen days to file a Motion for Summary Decision, and the Prosecuting Party would have fifteen days thereafter to file any response. During the conference call, the Prosecuting Party did not make it known that she was having poor phone reception. However, even assuming that she did not hear clearly, the undersigned issued an Order on March 30, 2004, which memorialized the information relayed during the telephone conference. See Order (March 30, 2004) (Ordering the Respondent to file its Motion for Summary Decision within fifteen days of March 26, 2004, and ordering the Prosecuting Party to file any Reply within fifteen days after receipt of Respondent's Motion). Thus, the Prosecuting Party's opportunity to reply to the Respondent's April 9, 2004 Motion for Summary Decision was not prejudiced by poor phone reception quality during the teleconference, and her objection to the Motion for Summary Decision on this basis is denied.
Respondent argues that summary decision should be granted because the factual premise of the Prosecuting Party's underlying complaint is "misleading and wrong." Respondent's Memorandum, at 1. Respondent disagrees with the Prosecuting Party's statements contained within her February 6, 2004 letter requesting a hearing, specifically the statement that Mr. T. P. Chandra Mohan was an H-1B worker paid less than required under the Regulations. Id. To refute this allegation, Respondent provided evidence that Mr. Chandra Mohan has an L-1 visa, and his compensation was significantly in excess of the required wage. See Exhibit A to the Boga Declaration (L-1B visa petition for Mr. Chandra Mohan valid from May 6, 2003 to May 6, 2005); Exhibit B to the Boga Declaration (W-2 Forms for Mr. Chandra Mohan showing his income in 2003 to be $68,082.00, and income in 2001 to be $70,576.36). These two documents submitted by Respondent in support of its Motion for Summary Decision sufficiently refute the contrary allegation by the Prosecuting Party in her letter requesting a hearing.
In the Prosecuting Party's Response to the Motion for Summary Decision, she attempts to refute the evidence provided by the Respondent regarding Mr. Chandra Mohan's visa status and salary by arguing that Mr. Chandra Mohan told the Prosecuting Party that his salary was $20,000. Prosecuting Party's Response, at 2. The Prosecuting Party states:
Mr. T. P. Chandra Mohan repeatedly asked the Prosecuting Party several times how much the Prosecuting Party was paid yearly around March of 2001. Mr. T. P. Chandra Mohan must feel he was deprived by the Respondent, for he told the Persecuting Party how much we was paid and was asking the Prosecuting Party how to get a green card, those information he would not have shared if he did not feel deprived.
Prosecuting Party's Response, at 2. The Prosecuting Party concluded that "Mr. T. P. Chandra Mohan ought to give official testimony in regards to his salary and type of visa he held." Id. These unsupported assertions do not refute the credible evidence provided by Respondent showing the actual wages earned by Mr. Chandra Mohan and his actual visa status. Moreover, due to Mr. Chandra Mohan's status under an L-1 visa, any wages he was paid by Respondent could not possibly amount to a violation of the H-1B Regulations because he did not have an H-1B visa.
A party cannot rely on their own unsupported hearsay to refute the evidence relied on to support a motion for summary decision. SeeAnderson, at 256 ("a party opposing a properly supported motion for summary judgment may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial"); Celotex Corp., at 324 ("Rule 56(e) therefore requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the "depositions, answers to interrogatories, and admissions on file," designate "specific facts showing that there is a genuine issue for trial"). Prosecuting Party had an opportunity to submit an affidavit from Mr. Chandra Mohan or other tangible evidence to support her opposition to the summary decision motion. However, no evidence has been submitted and the record as a whole shows that there is no issue of material fact to necessitate a trial, i.e., because it has been established that Mr. Chandra Mohan is an L-1 visa holder, there are no grounds to find a violation of the H-1B Regulations.
The Prosecuting Party asserts for the first time in her Response to the Motion for Summary Decision that one Pari Dhanapaul, identified by the Prosecuting Party as another H-1B visa worker who worked with the Prosecuting Party at Citigroup, "ought to testify" because "he was paid $10,000+ per year." Prosecuting Party's Response, at 3. However, Mr. Dhanapaul's name does not appear any where in the record. The Prosecuting Party cannot simply rely on her own statement that Mr. Dhanapual is an H-1B worker who was paid $10,000+ per year to defeat a Motion for Summary Decision. See Anderson, at 256. The purpose of a Response to a Motion for Summary Decision is not to raise new allegations but to explain why the allegations set forth in the complaint or the other documents referred to by 29 C.F.R. § 18.40(d) establish an issue of material fact that necessitates a hearing.
Respondent also argues that the Prosecuting Party's request for a hearing should be dismissed because her request is, inter alia, unclear and fails to meet the specificity requirement set forth in 20 C.F.R. § 655.820(c). Respondent's Memorandum, at 5. The Prosecuting Party's hearing request and Response to the Motion for Summary Judgment allege incidences of other forms of discrimination, such as Title VII issues, however those instances, whether true or not, are not relevant to this proceeding. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Anderson, at 248 (citation omitted). "Rule 56(e) provides that, when a properly supported motion for summary judgment is made, the adverse party ‘must set forth specific facts showing that there is a genuine issue for trial.'" Id. at 250 (footnote omitted). The Prosecuting Party has not established any other specific issues showing there is a need for a hearing based on violations of the H-1B program. Therefore, I find that the Prosecuting Party has not presented sufficient facts and testimonial evidence to survive a motion for summary decision. Because there are no genuine issues regarding specific violations of the Act and/or Regulations, summary decision is appropriate. Accordingly,
ORDER
After due consideration, IT IS HEREBY ORDERED that the Motion for Summary Decision filed by the Respondent shall be GRANTED. The request for a hearing by the Prosecuting Party shall be DISMISSED.
Thomas M. Burke
Associate Chief Administrative Law Judge
NOTICE OF APPEAL RIGHTS: Pursuant to 20 CFR § 655.845, any party dissatisfied with this Decision and Order may appeal it to the Administrative Review Board, United States Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, NW, Washington, DC 20210, by filing a petition to review the Decision and Order. The petition for review must be received by the Administrative Review Board within 30 calendar days of the date of the Decision and Order. Copies of the petition shall be served on all parties and on the administrative law judge.
