1 OCAHO 74 UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW OFFICE OF THE CHIEF ADMINISTRATIVE HEARING OFFICER United States of America, Complainant v. Mesa Airlines, A Corporation, Respondent; 8 U.S.C. § 1324b Proceeding; Case No. 88200001. In Re Charge of Zeki Yeni Komsu; United States of America, Complainant v. Mesa Airlines, A Corporation, Respondent; 8 U.S.C. § 1324b Proceeding; Case No. 88200002. FINAL DECISION AND ORDER TABLE OF CONTENTS (July 24, 1989) Page I. INTRODUCTION 1 A. Background 1 B. Procedural Summary 3 C. Jurisdiction Established 5 II. STANDING OF THE CHARGING PARTY AS AN INTENDING CITIZEN 7 III. STANDING TO FILE A COMPLAINT BY THE OFFICE OF SPECIAL COUNSEL FOR IMMIGRATION-RELATED UNFAIR EMPLOYMENT PRACTICES 12 A. Authority To File Complaints 12 B. Pattern Or Practice Liability May Be Prosecuted By The Special Counsel 13 IV. THE TIMELESS OF KOMSU’S FILING A CHARGE OF DISCRIMINATION 16 A. Equitable Tolling 22 1. The General Principle 22 2. The Principle Applied 24 B. Continuing Violation Theory Discussed 30 V. THE CHARGING PARTY HAS UNLAWFULLY DENIED EMPLOYMENT ON CITIZENSHIP GROUNDS 34 A. Mesa's Policy Articulated 34 B. Komsu Satisfied The Legitimate Qualifications Established By Mesa Airlines For Pilot Positions 37 C. Komsu Was Denied Employment As A Pilot By Mesa Airlines Because of Citizenship 39 D. Mesa Failed To Prove That Komsu Would Not Have Been Hired Even Had There Been No Discrimination 41 VI. PATTERN OR PRACTICE APPLIED 46 VII. REMEDIES 55 A. Generally 55 B. Eligibility For Back Pay 56 C. Back Pay Entitlements 59 D. Offsets To Back Pay 62 E. Pattern Or Practice Civil Money Penalty 66 F. Reconciliation 66 VIII. ULTIMATE FINDINGS, CONCLUSIONS, AND ORDER 66 461 1 OCAHO 74 UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW OFFICE OF THE CHIEF ADMINISTRATIVE HEARING OFFICER United States of America, Complainant v. Mesa Airlines, a Corporation, Respondent; 8 U.S.C. § 1324b Proceeding; Case No. 88200001. In Re Charge of Zeki Yeni Komsu United States of America, Complainant v. Mesa Airlines, a Corporation, Respondent; 8 U.S.C. § 1324b Proceeding; Case No. 88200002. Marvin H. Morse, Administrative Law Judge Appearances: LAWRENCE J. SISKIND, Esq. and DANIEL ECHAVARREN, Esq., for the Office of Special Counsel for Immigration Related Unfair Employment Practices. GARY RISLEY, Esq., for the respondent. FINAL DECISION AND ORDER (July 24, 1989) I. INTRODUCTION A. Background The Immigration Reform and Control Act of 1986 (IRCA), Pub. L. No. 99-603, 100 Stat. 3359 (Nov. 6, 1986) amended the Immigration and Nationality Act of 1952 (INA), codified at 8 U.S.C. §§ 1101 et seq., by adopting several significant revisions to national policy on illegal immigration. The Supreme Court in Espinoza v. Farah Mfg. Co. Inc., 414 U.S. 86 (1973) had previously held that Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 20000e et seq., did not cover alienage as distinct from national origin discrimination. Accordingly, as a concomitant of the newly enacted legaliza- 462 1 OCAHO 74 tion and employer sanctions programs, Congress, at § 102 of IRCA, enacted INA § 274B, 8 U.S.C. § 1324b. The Supreme Court in Espinoza, supra, held that discrimination based on alienage is not the equivalent of national origin: discrimination which, where the jurisdictional requisites are satisfied as to the employer's size, is prohibited by Title VII, 42 U.S.C. §§ 2000e et seq. The Court concluded that Title VII does not bar discrimination based on alienage or citizenship status. Accordingly, Title 8, United States Code section 1324b was enacted to create new causes of action arising out of any ``unfair immigration-related employment practice,'' 8 U.S.C. § 1324b(a)(1), and to broaden ``. the Title VII protections against national origin discrimination . because of the concern of some Members that people of `foreign' appearance might be made more vulnerable'' to employment discrimination ``by the imposition of [employer] sanctions.'' ``Joint Explanatory Statement of the Committee of Conference,'' Conference Report, Immigration Reform and Control Act of 1986, H.R. Rep. No. 99- 1000, 99th Cong., 2d Sess., at 87 (1986). Practices newly prohibited are those which discriminate against an individual on the basis of that individual's national origin or, in the case of a citizen or national of the United States or an ``intending citizen . ., because of such individual's citizenship status.'' 8 U.S.C. § 1324b(a)(1). Section 1324b(a) provides that it is a violation of law, subject to specified exceptions, to discriminate against any individual with respect to hiring, recruitment, referral for a fee, or discharge from employment because of that individual's national origin or citizenship status. The individuals protected against discrimination are U.S. citizens or nationals and those aliens who (1) have been admitted for permanent residence, (2) have been granted the status of aliens lawfully admitted for temporary residence, as applicants for amnesty, (3) have been admitted as refugees, or (4) have been granted asylum provided that each such individual has evidenced ``an intention to become a citizen of the United States through completing declaration of intention to become a citizen. .'' Id. at § 1324b(a)(3). IRCA directed the President to appoint within the Department of Justice a Special Counsel for Immigration-Related Unfair Employment Practices (Special Counsel, or OSC), responsible for investigating charges, issuing complaints and prosecuting cases before administrative law judges, and authorized to seek judicial enforcement of orders issued by such judges. Id. at §§ 1324b(c) and (j)(1). Remedies provided for breach of the duty not to discriminate, which the administrative law judge may impose upon determining that the respondent has engaged in an unfair immigration-related 463 1 OCAHO 74 employment practice include not only relief on behalf of covered individuals but also liability to the United States upon a finding of a ``pattern or practice of discriminatory activity.'' Id. at § 1324b(d)(2). The present case raises questions of first impression under 8 U.S.C. § 1324b with respect both to relief on behalf of the individual complainant, Mr. Zeki Yeni Komsu (charging party, or Komsu), and to liability to the government. B. Procedural Summary The United States, by OSC, to vindicate the public interest and on behalf of Komsu filed two complaints with the Office of the Chief Administrative Hearing Officer (OCAHO) on January 12, 1988, against Mesa Airlines (respondent, or Mesa). The Special Counsel, in effect, asserts in Docket 88200001 that Mesa engaged in a pattern and practice of discrimination in its hiring of airline pilots by promulgating and adhering to a policy of failure to consider for employment those applicants, including Komsu, who are not citizens of the United States, at any time that qualified applicants were available who were citizens of the United States. In Docket 88200002, the Special Counsel contends that Komsu was not hired as a pilot because Mesa, applying its U.S. citizen-only policy, rejected his employment application. (The initial pleadings in these dockets are understood as if they had been amended, implicitly, to conform to the proof.) By Notices of Hearing dated January 13, 1988, OCAHO advised that those cases were assigned to me and that hearings were scheduled to be held in Albuquerque, New Mexico, beginning on March 22, 1988. On February 16, 1988, respondent answered the complaints and also moved for dismissal, charging (1) that the complaints fail to state a cause of action upon which relief could be granted, (2) that the statute as applied to respondent is unconstitutional in that it violates due process, denies equal protection, is tantamount to an ex post facto law, and (3) that it is unconstitutional as interpreted by the Department of Justice in that it affords retroactive coverage to individuals filing a declaration of intent prior to December 1, 1987. Memoranda in opposition to and in support of respondent's motions to dismiss were submitted. On February 29, 1988, OSC with the concurrence of the respondent moved to continue the hearings until June 1988, in order for the parties to conduct adequate discovery and narrow the issues for trial. On March 7, 1988, a telephonic prehearing conference was held during which the motions for continuance were granted and the 464 1 OCAHO 74 hearings rescheduled for June 13-16, 1988. A second telephonic conference was held on May 6, 1988, at which time the judge deferred ruling on respondent's motions to dismiss and informed the parties of his intent to proceed to hearing as scheduled. On May 26, 1988, reciting agreement by the Office of Special Counsel, respondent filed motions for continuance stating that an increase in the number of depositions to be taken by complainant necessitated its request for a continuance. During a telephonic conference, the judge granted the motions and, by order of May 26, 1988, rescheduled the hearing to begin on July 25, 1988. During a fourth prehearing conference on June 15, 1988, it was agreed that the two cases would be tried on a consolidated basis. A joint prehearing statement was filed on July 19, 1988. On July 21, 1988, respondent filed a motion in limine arguing that any evidence regarding the alleged pattern and practice claim was irrelevant and requesting imposition of sanctions against the Office of Special Counsel for alleging a claim which was neither well grounded in fact nor warranted by law. OSC filed its response on July 22, 1988. The hearing was held from July 25 through July 29, 1988, in Albuquerque, New Mexico, and began in a prehearing mode before the parties went on the record. At the hearing, OSC submitted ``Complainant's Memorandum of Points and Authorities Regarding Permissible Citizenship Preference Under § 102 of I.R.C.A.'' Sixteen witnesses were examined, 62 exhibits were received, and a record of 1108 pages was compiled.