United States: Fifth Circuit Green Lights Discovery Over Immigration Status In EEOC Litigation

Seyfarth Synopsis:  Hispanic employees of a poultry processing plant alleged harassment and abuse on the job. The company claimed that the employees' allegations were fabricated in order to obtain U visas, which are available to immigrant abuse victims who assist in government investigations. Over the plaintiffs' objections, the district court allowed the company discovery related to the employees' U visa applications. On an interlocutory appeal, the U.S. Court of Appeals for the Fifth Circuit vacated the district court's discovery order and remanded the case to the district court with instructions to devise an approach to the U-visa discovery that ensures that immigrant victims are not deterred from reporting their abuse.  The ruling is important to any employers involved in workplace litigation with immigrant workers.

In Cazorla v. Koch Foods of Missi., LLC, No. 15-60562 (5th Cir. Sept. 27, 2016), the EEOC filed a complaint in the U.S. District Court for the Southern District of Mississippi on behalf of Hispanic employees who alleged that they suffered sexual harassment and physical abuse while working at a poultry processing plant. The company claimed that the employees, many of whom are undocumented aliens, made up their accusations in hopes of obtaining immigration benefits under the U-visa program. The program offers temporary nonimmigrant status to victims of substantial physical or mental abuse. The district court allowed the company limited discovery related to the employees' U-visa applications and the EEOC, consequently, sought interlocutory review of the district court's discovery orders. On appeal, the Fifth Circuit  vacated and remanded the district court's discovery rulings, ordering the district court to craft a discovery order that allows U-visa discovery but avoids deterring immigrant victims of abuse from using the U-visa program.

This ruling demonstrates that courts recognize that impeachment evidence regarding an employee's motivation for bringing a claim is a key defense for employers facing workplace harassment allegations. Where that defense intersects with, or potentially frustrates, a statutory program, courts will roll up their sleeves to fashion relief that balances the competing concerns. Employers, therefore, should not be deterred from utilizing a defense simply because doing so conflicts with the purpose behind a statutory regime. A middle ground can be achieved through protective orders and customized discovery orders.

Case Background

Hispanic employees at a poultry processing plant in Mississippi (the "Company") claimed that for roughly four years they suffered routine abuse at work. The Company's supervisors allegedly groped female workers, and in some cases assaulted them more violently; offered female workers money or promotions for sex; made sexist and racist comments; and otherwise physically abused workers of both sexes. Id. at 1.

The EEOC filed suit on the employees' behalf against the Company in the U.S. District Court for the Southern District of Mississippi. In its defense, the Company claimed that the employees, who are mostly undocumented aliens, invented their allegations in order to help secure U visas. The U-visa program offers temporary nonimmigrant status to victims of substantial physical or mental abuse and U-visa holders may apply for a "green card" after three years. Id.

To obtain concrete evidence of this malfeasance, the Company served discovery requests seeking the production of records relating to the employees' efforts to obtain U visas. Id. The plaintiffs opposed the discovery requests because the discovery would necessarily reveal the immigration status of any employee who applied for a U visa, as well as that of their families. Id. at 2-3.

Over the plaintiffs' objections, the district court allowed the discovery but with two limitations. First, the district court excused the EEOC from complying with the discovery requests because 8 U.S.C. § 1367 barred the EEOC from revealing any information related to the claimants' U visa applications. Id. at 3. At the same time, the district court found § 1367 did not similarly excuse the claimants. Id. The district court then held that Rule 26 did not "preclude U-visa discovery from the individual claimants, reasoning that the discovery was relevant to the claimants' credibility . . . and that the relevance of the information sought outweighed the in terrorem effect of producing it." Id. The employees, unlike the EEOC, were therefore required to comply with the discovery requests subject to the district court's second limitation: a protective order that prohibited the use of the discovered information for purposes unrelated to the lawsuit and barred the Company from sharing the information with law enforcement, unless the failure to do so was a criminal offense. Id.

After losing its discovery battle, the EEOC sought interlocutory review of the district court's discovery orders under 28 U.S.C. § 1292(b). The district court certified the orders for interlocutory appeal and the Fifth Circuit granted review.

The Decision

On appeal, the U.S. Court of Appeals for the Fifth Circuit vacated and remanded the district court's discovery orders. Id.

The Fifth Circuit first determined that the district court properly decided that the EEOC, but not the employees, was exempt from having to produce U-visa information. Id. at 7. Unlike the EEOC, the claimants were not bound to the confidentiality provisions in 8 U.S.C. § 1367 and its implementing regulations. Id at 7.

Having decided that § 1367 did not preclude U visa discovery from the individual claimants, the Fifth Circuit next examined the district court's Rule 26(c) analysis. Rule 26(c) allows the court to issue an order restricting discovery "to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." Id. at 10.  In applying Rule 26(c), the Fifth Circuit explained that federal courts balance and compare the hardship to the party against whom discovery is sought against the probative value of the information to the other party. Id. Courts also weigh relevant public interests in this analysis. Id.

The Fifth Circuit, for the most part, agreed with the district court's Rule 26(c) balancing analysis. The Fifth Circuit, for instance, explained that U-visa discovery was relevant and probative of potential fraud and had significant impeachment value; that the claimants had reasonable fears that disclosure of their U-visa information could lead to them being reported to authorities; and that, although allowing the discovery would create some delay and hardship, the plaintiffs could seek relief for any unduly burdensome demands. Id. at 14-16.

In sum, the Fifth Circuit noted that "the district court's analysis of the harm that U visa discovery might cause the claimants was imperfect, but not critically so." Id. at 17. "More pressing" to the Fifth Circuit, however, was "that the district court did not address how U-visa litigation might intimidate individuals outside this litigation, compromising the U visa program . . . ." Id.

On this issue, the Fifth Circuit noted that the district court considered only the immediate chilling effect of U-visa discovery on the individual claimants. Id. "Those individuals," the Fifth Circuit explained, "are not the only ones who might be affected by the disclosure of the claimants' U visa information." Id. Indeed, the Fifth Circuit expressed concern that allowing U- visa discovery "may sow confusion over when and how U-visa information may be disclosed, deterring immigrant victims of abuse . . . from stepping forward and thereby frustrating Congress's intent in enacting the U visa program." Id.

Based on these concerns, the Fifth Circuit vacated the district court's discovery orders and instructed the district court to "devise an approach to U-visa discovery that adequately protects the diverse and competing interests at stake." Id at 18.  At a minimum, the Fifth Circuit held that U-visa discovery must not reveal to the Company the identities of any visa applicants and their families, at least in the liability phase—where the probative value of the U-visa evidence is not affected by the identity of the claimants. Id.

Implication For Employers

The take away for employers is that, although defense strategies sometimes include discovery topics that conflict with a statutory regime, a sensible middle ground can be achieved. A willingness to agree to discovery limitations and customized protective orders goes a long way to demonstrating that the discovery is sought for legitimate purposes—despite such discovery's unintended impact on parties outside the lawsuit.

Readers can also find this post on our EEOC Countdown blog here.

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