Undocumented workers are entitled to protection under Title VII and other federal employment laws, but many fear filing charges and lawsuits because they risk exposure, termination, and deportation. The Fifth Circuit addresses the delicate balance between the public interest in enforcing anti-discrimination laws and the right of an employer under federal discovery procedures to obtain evidence that is potentially important to its defense.
Cazorla v. Koch fords of Mississippi, LLC, No. 15-60562 (5th Cir. Sept. 27, 2016): Under the Victims of Trafficking and Violence Protection Act, 8 U.S.C. § 1101(a)(15)(U)(i), (iii), the federal government has authority to issue "U Visas" to victims of "substantial physical or mental abuse" resulting from such offenses as sexual assault, abusive sexual contact, extortion, and felonious assault. These "generally entitle their holders and their family members to four years of nonimmigrant status; holders may also apply for lawful permanent residence ['green cards']."
As the opinion summarizes:
"for a victim to receive a U visa, a law enforcement agency such as the Equal Employment Opportunity Commission (EEOC) must certify that he or she is aiding an investigation into the alleged offenses, and the U.S. Customs and Immigration Service (USCIS) must conduct its own de novo review of relevant evidence and confirm the victim's eligibility."
Here, the charge-filing parties contended that their employer Koch fords, a poultry processor, allowed a work environment rife with sexual assault, other physical abuse, and quid pro quo propositioning. The employer, in turn, accused the employees of trumping up complaints solely to take advantage of the U Visa program. In 2011, the EEOC filed a Title VII action on behalf 50 to 75 alleged victims, a number of whom intervened directly in the case.
The employer sought to shore up its defense by serving discovery requests on the EEOC and intervenor plaintiffs for "information and records relating to claimants' efforts to obtain U visas. That discovery inevitably would have revealed the immigration status of any claimants who applied for U visas, as well as that of their families."
The district court held that a federal statute, 8 U.S.C. § 1367 (and implementing regulation 8 C.F.R. § 214.14), barred the EEOC from revealing any information related to the claimants' U visa applications. But it also held that the individual claimants themselves could be required to turn over whatever they had. Discovery was to be "limited to information regarding efforts to obtain U Visas, or other immigration benefits, that arose out of the allegations in this civil action against Koch fords." A protective order also "prohibited use of the discovered information for business purposes unrelated to the lawsuit 'unless . . . required by relevant law.'"
The district court then certified an interlocutory appeal of the discovery order to the Fifth Circuit, and the panel vacates and remands in a thorough 34-page opinion. The court holds that the district court gave insufficient consideration to the public interest, noting that the decision could deter legitimate complaints.
The panel first disposes of some threshold issues. It holds that the claimants had no privilege against discovery by operation of 8 U.S.C. § 1367, which applies on its face only to the federal government itself. It also holds that the claimants waived any argument that the burden of "good cause" for production of U Visa material belonged on the party that was seeking discovery.
This brought the panel down to the issue of whether discovery could be blocked or limited under Federal Rule of Civil Procedure 26(c), allowing the court, "for good cause, [to] issue an order" restricting discovery. While it is surpassingly rare for a federal court of appeals to overturn a district court decision for abusing its discretion under this rule, the panel holds that the district court here got it wrong, because it failed to weigh the public interest in confidential complaints about harassment.
The panel upholds most of the district court's findings. First, it agrees that "although There were prior cases to support both allowing and denying the discovery under Rule 26, none of them were binding and most seemed distinguishable." While numerous courts in the past have barred or limited immigration-status discovery, "in many of these cases, immigration benefits were not alleged to have motivated or shaped the claims at issue and did not otherwise affect the plaintiffs' right to relief." Here, though, they potentially shape the core of the employer's response: that applications for U Visas motivated possibly false or exaggerated reports.
Second, it holds that the discovery sought from claimants was relevant and might even have "significant probative value." Notes the panel, worker complaints against "Koch appeared to have 'spike[d] once the EEOC became involved, and because the EEOC has the authority to issue U visas, this was at least some evidence that the claimants may have lied in hopes of obtaining them." The panel draws no conclusions about which side is correct, though, noting that the EEOC's involvement in the investigation "could have caused the case's ranks to swell for any number of legitimate reasons; most obviously, the EEOC may have discovered addition al harassment claimants during the pre-suit conciliation and investigation processes." The panel observes that "substantial evidence suggests that serious abuse is all too common in many industries reliant on immigrant workers, including the modern-day poultry industry."
Third, it holds that the district court did not clearly err in finding that the relevance of the U Visa material outweighed any possible harm to the claimants themselves from allowing discovery. It recognizes the risk that the workers might be fired if their immigration status were revealed, yet it "is unclear how many claimants remain employed by Koch, ... how many will still be working for the company by the time U visa discovery takes place," or "how many in that group may have applied for or received U visas." It acknowledges, though, that the risk of disclosure might have an in terrorem effect on claimants cooperating with the government. It also agrees with the district court that any undue discovery burden on the claimants could be mitigated by further tweaks to the protective order.
But the district court erred, holds the panel, by disregarding the public interest.
"Allowing U visa discovery from the claimants themselves in this high-profile case will undermine the spirit, if not the letter, of those Congressionally sanctioned assurances and may sow confusion over when and how U visa information may be disclosed, deterring immigrant victims of abuse - many of whom already mistrust the government - from stepping forward and Thereby frustrating Congress's intent in enacting the U visa program."
It notes that immigrants are, according to reliable reports, "disproportionately vulnerable to workplace abuse[,] ... highly reluctant to report it for fear of discovery and retaliation," often threatened with deportation by unscrupulous employers. "In sum, allowing discovery of U visa information may have a chilling effect extending well beyond this case, imperiling important public purposes."
The panel holds, Therefore, that the discovery may be ordered but only on condition that the "discovery must not reveal to Koch the identities of any visa applicants and their families, at least in the liability phase." Only "if the trier of fact determines that Koch is liable to the complainants" would it "likely be necessary to de-anonymize the U visa application discovery for the purpose of proceeding with individual damages determinations ...." The panel leaves further details of the order up to the district court.