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By
Monica Guizar
Employment Policy Attorney
A federal district court in New York has upheld
the order of a magistrate judge granting the plaintiff in a case before
the court a protective order prohibiting the defendants from asking
questions about her immigration status during her deposition.
The plaintiff, a Ms. Avila-Blum, had filed a
motion for protective order with the magistrate and, in support of her
motion, cited to another matter in which she was also a named plaintiff
and in which the court had issued protective orders preventing inquiry
into the plaintiffs’ immigration status, Social Security numbers, and
work authorization. The defendants opposed the motion on the grounds
that Avila-Blum’s counsel had informed the defendants that she may have
falsified certain immigration and employment application documents and
that they would oppose any effort by the defendants to explore this
issue of falsification in order to attack Avila-Blum’s credibility.
The magistrate, in granting Avila-Blum’s motion,
considered the potential effect that allowing inquiry into immigration
status might have on undocumented workers, in that it could discourage
those workers from filing discrimination or other employment-related
lawsuits for fear that disclosure of their immigration status could
result in their being deported. The magistrate therefore found that the
harm outweighed the probative value that immigration status could have
on the issue of Avila-Blum’s credibility. The magistrate also relied on
Rivera v. NIBCO, Inc., 364 F.3d 1057 (9th Cir. 2004), to find
that discovery into Avila-Blum’s immigration status was prohibited
during the liability phase of the lawsuit, but that immigration status
could be relevant in determining damages. (For more on Rivera v.
NIBCO, Inc., see “9th Circuit
Upholds Protective Order Limiting Employers’ Inquiries into Plaintiffs’
Immigration Status,”
Immigrants’ Rights Update, June 18, 2004).
The defendants filed objections to the
magistrate’s order in federal district court, claiming that the
magistrate should not have relied on the test outlined in Rivera
to limit inquiry into immigration status only to the damages phase of
the litigation and that pursuant to the Supreme Court decision in
Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002), the
order of the magistrate violated federal immigration policy. (For a
summary of the decision in Hoffman, see “Supreme
Court Bars Undocumented Worker from Receiving Back Pay Remedy for
Unlawful Firing,” IRU, Apr. 12, 2002.)
In rejecting the defendants’ arguments, the
federal district court expressed the same concerns described in the
magistrate’s order and in decisions by other courts — i.e., that
allowing inquiry into immigration status is unduly prejudicial and has a
chilling effect on the filing of discrimination and employment cases.
The court therefore found that discovery into immigration status, at
least in the liability stage, should be barred. It cited to the
following cases to support its holding: Topo v. Dhir, 210 F.R.D.
76 (S.D.N.Y. 2002); Liu v. Donna Karan Int’l, Inc., 207 F. Supp.
2d 191 (S.D.N.Y. 2002); Rivera, 364 F.3d at 1074–75; and EEOC
v. First Wireless Group, Inc., 255 F.R.D. 404 (E.D.N.Y. 2004). (For
more information on Liu v. Donna Karan, see “Court
Denies Designer Donna Karan's Request for Discovery into Immigration
Status,” IRU, July 15, 2002; for more information on EEOC
v. First Wireless Group, see “EEOC
Obtains Protective Order Limiting Discovery That Could Adversely Affect
Immigrant Workers,” IRU, June 18, 2004.)
While the defendants attempted to distinguish
their request from the cases cited by arguing that they were seeking
information regarding Avila-Blum’s responses in employment-related
documents only to use as impeachment evidence, the court again dismissed
this argument. According to the court, “[T]hat a party’s credibility is
at issue does not by itself warrant unlimited inquiry into the subject
of immigration status when such examination would impose an undue burden
on private enforcement of discrimination laws.” In support of its
holding, the court cited to the magistrate’s order and noted that a
witness’s credibility “is always at issue and may be tested in a variety
of ways without imposing an undue burden on a party.” The court also
cited to a portion of the magistrate’s order stating that the defendants
could use other documents in their possession to show that Avila-Blum
may have falsified employment documents and could question her during
deposition or at trial in a “limited and narrowly tailored examination”
without “opening broader collateral issues pertaining to immigration
status.”
Finally, the court found that the magistrate was
correct in relying on the Ninth Circuit’s decision in Rivera to
conclude that the Hoffman Plastic decision was limited to
actions brought under the National Labor Relations Act and that
Hoffman did not make immigration status relevant to determining
Title VII violations or other similar employment discrimination
violations.
This case is another in the line of many cases
where courts have upheld protective orders barring inquiry into
immigration status during the liability phase in employment
discrimination cases and other employment-related actions. The
interesting point of this case is that the defendants attempted to
obtain immigration status information by arguing that the information
sought was to be used in order to impeach the plaintiff’s credibility.
Practitioners should continue to refuse to disclose the immigration
status of their clients, even in cases where the defendant is attempting
to damage the plaintiff’s credibility.
Avila-Blum v. Casa de Cambio Delgado, Inc., et al,
236 F.R.D. 190 (S.D.N.Y. 2006).
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