Disclaimer:
The case on which this summary is based may no longer be current law.
Also, if the case was decided on summary judgment, the court recited the
"facts" in the light most favorable to the non-movant, which may not be
the true facts.
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Divided en banc court affirms grant of summary judgment
in national origin discrimination action.
Zamora v. Elite Logistics, Inc., 478 F.3d 1160 (10th Cir.
February 26, 2007)(en banc) - This is a Title VII race and national origin
discrimination action alleging wrongful suspension and wrongful termination.
Elite operates a grocery warehouse. In June 2000, Elite needed to hire an
additional 300 workers in just a few weeks' time. In doing so, the company
failed to verify that all of its new employees were authorized to work in
the United States. A year later, in August of 2001, Elite hired Ramon
Zamora. At that time, he acknowledged that he was a Mexican citizen and he
showed proof of his legal status in the form of his alien registration card
and his Social Security card. He also signed an I-9 form in which he stated
under penalty of perjury that he was a lawful permanent resident. In
December 2001, Elite received a tip that the Immigration and Naturalization
Service ("INS") might conduct an inspection of warehouses in the area. Elite
was concerned about its conduct in June of 2000. Therefore, Elite had the
Social Security numbers of all of its 650 employees checked by two outside
contractors. The contractors reported problems regarding thirty-five
employees. On May 10, 2002, Elite gave Zamora ten days to provide further
documentation. The other employees for whom problems were reported were also
asked to provide further documentation. Most of these employees quit. Zamora
did not bring in any further documentation and he was suspended. Later that
same day, Zamora brought in a report of earnings from the Social Security
Administration ("SSA"). But the SSA document showed a different birth date
than the date that Zamora had provided to the company. It also showed a
state of Washington address that Zamora had scratched out and replaced with
a Kansas address. At some point, Zamora brought in his naturalization
certificate, but Elite rejected that document as well. The next day, Zamora
brought in a SSA document verifying that the Social Security number was in
fact assigned to him. Elite's personnel director, Larry Tucker, told his
secretary to call the SSA and confirm the information. She did. Two days
later, the secretary called Zamora and asked him to return to work. Four
days later, Zamora came to work with a letter that included two demands
before he would return to work: (1) an apology in writing; and (2) a
complete explanation of why he was terminated. Tucker allegedly grabbed the
letter and told Zamora to "just get the hell out." Zamora then brought this
lawsuit. The district court granted summary judgment in favor of Elite. A
panel of the Tenth Circuit reversed and remanded in a decision found at 449
F.3d 1106. The en banc court now affirms in part and reverses in part. As to
the wrongful suspension claim, the en banc court is evenly divided, which
means that the district court's grant of summary judgment is affirmed. With
respect to the termination claim, the court assumes he established a prima
facie case. Next, Elite proffered a non-discriminatory reason for the
termination because Tucker believed that Zamora would not return to work
without an apology and Tucker was not going to apologize. Zamora argues that
Tucker could not reasonably have believed that he was conditioning his
return to work on an apology. But that is what Zamora's letter said and
Zamora wanted the apology mailed to his home, indicating that he was not
returning to work that day. Furthermore, there is no evidence that Tucker's
reaction was because Zamora was a Mexican-born Hispanic. Therefore, the
court affirms as to the termination claim as well. There are several
concurring and dissenting opinions. Click
here to see
actual case.