Rehearing en banc granted by order filed 12/17/96;

published opinion filed 9/13/96 is vacated.
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

OBIORA E. EGBUNA,

Plaintiff-Appellant,

v.

TIME-LIFE LIBRARIES, INCORPORATED,

No. 95-2547

Defendant-Appellee.

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION,

Amicus Curiae.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Albert V. Bryan, Jr., Senior District Judge.

(CA-95-197)

Argued: May 8, 1996

Decided: September 13, 1996

Before RUSSELL and ERVIN, Circuit Judges, and NORTON,

United States District Judge for the District of South Carolina,

sitting by designation.

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Reversed and remanded by published opinion. Judge Ervin wrote the

majority opinion, in which Judge Norton joined. Judge Russell wrote

a dissenting opinion.

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COUNSEL

ARGUED: John P. Racin, WEISSBRODT, RACIN & MIELKE,

Washington, D.C., for Appellant. Samuel Alan Marcosson, Office of
General Counsel, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Washington, D.C., for Amicus Curiae. Donald R. Livingston, AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P.,

Washington, D.C., for Appellee. ON BRIEF: Nina J. Ginsberg,

DIMURO, GINSBERG & LIEBERMAN, P.C., Alexandria, Virginia,

for Appellant. C. Gregory Stewart, General Counsel, Gwendolyn

Young Reams, Associate General Counsel, Vincent J. Blackwood,

Assistant General Counsel, Office of General Counsel, EQUAL

EMPLOYMENT OPPORTUNITY COMMISSION, Washington,

D.C., for Amicus Curiae. Lawrence D. Levien, Neil J. Welch, Jr.,

Harry J. F. Korrell, AKIN, GUMP, STRAUSS, HAUER & FELD,

L.L.P., Washington, D.C., for Appellee.

_________________________________________________________________

OPINION

ERVIN, Circuit Judge:

We must decide whether a Title VII plaintiff must demonstrate that

he is eligible to work in the United States under the Immigration

Reform and Control Act of 1986 to establish a prima facie case of

employment discrimination. We find that work eligibility is not part

of the prima facie case, and therefore reverse the district court's summary judgment.

I.

Appellant Obiora Egbuna, a Nigerian national, was employed by

appellee Time-Life Libraries ("TLLI") from June 1989 until April

1993. When Egbuna was initially hired, he was authorized by the

Immigration and Naturalization Service ("INS") to work in the United

States. Harrison Jackson, a TLLI employee whom Egbuna supervised,

reported to Egbuna that he had been sexually harassed by another

employee; Egbuna cooperated with TLLI's internal investigation and

corroborated some of Jackson's allegations. In April 1993, Egbuna

voluntarily resigned from TLLI, but sought reemployment in June

1993. By this time, Egbuna's authorization to work in the United

States had expired, and in fact had expired before the end of his prior

employment with TLLI. Although the company apparently initially

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offered to rehire him, TLLI ultimately withdrew this offer, claiming

that Egbuna had not followed company policy in reporting Jackson's

complaints.

Egbuna sued TLLI, alleging that the company had refused to rehire

him because of his participation in enforcement proceedings related

to Jackson's complaints, in violation of Title VII, 42 U.S.C. § 2000e3(a) (1988). The district court required Egbuna to prove that he was

qualified for the position he sought in order to show that he was a victim of discrimination. Memorandum Opinion, in Joint Appendix at

93-94 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973)). Because Egbuna lacked employment authorization (a "green

card"), he could not show that he was qualified, the court found.

Accordingly, the court granted summary judgment for TLLI. Egbuna

timely filed his notice of appeal; Fourth Circuit jurisdiction thus lies

under 28 U.S.C. § 1291.

II.

Summary judgments are reviewed de novo on appeal. E.g., Higgins

v. E.I. Du Pont de Nemours & Co., 863 F.2d 1162, 1167 (4th Cir.

1988); Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1127-28 (4th

Cir. 1987).

This appeal involves the interaction of two separate federal statutes. One is Title VII, which makes it unlawful to discriminate in

employment. 42 U.S.C. § 2000e et seq. The second is the Immigration

Reform and Control Act of 1986 ("IRCA"), which makes it illegal to

knowingly employ an unauthorized alien. 8 U.S.C.A. § 1324a(a)(1)

(Supp. 1996). We must decide whether an undocumented alien--

ineligible to work under the IRCA--may bring a Title VII action for

failure to hire. This is a question of first impression in this circuit.

Egbuna sued TLLI under 42 U.S.C. § 2000e-3(a), which provides

that it is an illegal employment practice to discriminate against an

applicant for employment "because he has opposed any practice made

an unlawful employment practice by this subchapter, or because he

has made a charge, testified, assisted, or participated in any manner

in an investigation, proceeding, or hearing under this subchapter."

This court has explained that the proof scheme set forth in McDonnell

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Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973), applies in

§ 2000e-3 retaliation claims.1 Ross v. Communications Satellite Corp.,

759 F.2d 355, 365 (4th Cir. 1985). First, the employee must make out

a prima facie case of retaliation by showing three elements: "1) the

employee engaged in protected activity; 2) the employer took adverse

employment action against the employee; and 3) a causal connection

existed between the protected activity and the adverse action."2 Id.

Once a prima facie case is established, the employer may proffer a

legitimate, nondiscriminatory reason for its action, which rebuts the

presumption of retaliation. Id. This shifts the burden back to the

employee, who must show that the employer's reason is pretextual.

Id.

TLLI concedes that Egbuna engaged in protected activity, and that

it did not rehire him. Thus, Egbuna has met the first two requirements

of a prima facie case. TLLI argues that the only issue at the summary

judgment stage was "whether Egbuna, who could not have been hired

by TLLI, can demonstrate a causal connection between the protected

activity and TLLI's failure to employ him." Id. Egbuna argues that he

has satisfied the minimal requirements of the prima facie case standard, including the third element, by alleging that"the Company

declined to [rehire him] based solely upon his witness status."

As far as we can determine, only one other court has addressed the

specific question before us here,3 and that court held that unauthorized

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1 This is an unusual case in that Egbuna alleges that the failure to hire

was retaliatory. Usually, someone who is not hired does not have a prior

relationship with the employer and the refusal to hire is alleged to have

been discriminatory rather than retaliatory.

2 Although the Ross court explained that the illegal conduct must be the

"but-for" cause of the challenged action in the retaliation context, the

Civil Rights Act of 1991 amended Title VII to provide that a statutory

violation has occurred if "race, color, religion, sex, or national origin was

a motivating factor for any employment practice, even though other factors also motivated the practice." 42 U.S.C. § 2000e-2(m) (Supp. III

1991). The Civil Rights Act does not specifically address unlawful

employment practices as defined by § 2000e-3(a), the statute under

which Egbuna seeks recovery.

3 Before the enactment of the IRCA, the Supreme Court acknowledged

that Title VII protects aliens against discrimination. Espinoza v. Farah

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aliens are protected under Title VII despite the provisions of the

IRCA. EEOC v. Tortilleria "La Mejor", 758 F. Supp. 585, 593-94

(E.D. Cal. 1991). An undocumented-alien employee filed a Title VII

sex discrimination claim. Id. at 586. The court found that Title VII

applied to undocumented aliens, and noted that the EEOC has always

so construed the statute. Id. at 589. The court then considered whether

the enactment of the IRCA altered the scope of Title VII's protections, and concluded that "Congress did not intend that the IRCA

amend or repeal any of the previously legislated protections of the

federal labor and employment laws accorded to aliens, documented or

undocumented, including the protections of Title VII." Id. at 592-94;

see also EEOC v. Hacienda Hotel, 881 F.2d 1504, 1517 n.10 & n.11

(9th Cir. 1989) (assuming, without deciding, "that the undocumented

workers in this case were entitled to the protections of Title VII," but

noting that the IRCA "may well . . . change[ ] the mix of policy considerations underlying the case law which supports our conclusion

that undocumented employees may recover back pay in a Title VII

action").

In a Fair Labor Standards Act ("FLSA") case, the Eleventh Circuit

found that the IRCA did not effect the FLSA's application to undocumented aliens, in part based on the principle that"amendments by

implication are disfavored." Patel v. Quality Inn South, 846 F.2d 700,

704-05 (11th Cir. 1988), cert. denied, 489 U.S. 1011 (1989). That

court concluded that there was no policy conflict created by applying

both statutes:

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Mfg. Co., 414 U.S. 86, 95 (1973). In Sure-Tan, Inc. v. NLRB, 467 U.S.

883 (1984), also decided before the IRCA, the Supreme Court held that

undocumented aliens are considered "employees" within the definition of

the National Labor Relations Act. Id. at 892 (1984). The Sure-Tan Court

specifically noted that the Immigration and Nationality Act ("INA"),

which regulated entry into the United States, did not make it "unlawful

for an employer to hire an alien who is present or working in the United

States without appropriate authorization." Id. at 892-93. Because the INA

did not proscribe the relationship between employer and undocumentedalien employee, there was no conflict presented by applying both the

INA and the NLRA. Id. at 893. In contrast to the INA, the IRCA prohibits employers from hiring employees without green cards, 8 U.S.C.A.

§ 1324a(a)(1), and requires verification of each potential employee's status, id. § 1324a(b).

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Congress enacted the IRCA to reduce illegal immigration by

eliminating employers' economic incentive to hire undocumented aliens. To achieve this objective the IRCA imposes

an escalating series of sanctions on employers who hire such

workers. See 8 U.S.C. § 1324a. The FLSA's coverage of

undocumented workers has a similar effect in that it offsets

what is perhaps the most attractive feature of such workers

--their willingness to work for less than the minimum wage.

If the FLSA did not cover undocumented aliens, employers

would have an incentive to hire them. Employers might find

it economically advantageous to hire and underpay undocumented workers and run the risk of sanctions under the

IRCA.

. . . By reducing the incentive to hire such workers the

FLSA's coverage of undocumented aliens helps discourage

illegal immigration and is thus fully consistent with the

objectives of the IRCA. We therefore conclude that undocumented aliens continue to be "employees" covered by the

FLSA.

Id. at 705.

The crux of TLLI's argument rests on its claim that Egbuna was

not qualified to work. The company argues that Egbuna's lack of

work authorization rendered him unqualified, resulting in an inability

to make a prima facie case of retaliatory failure to hire; therefore,

TLLI argues, it need not make any showing of its motive as required

by the second stage of the McDonnell Douglas framework. But

Egbuna argues that this court "should reject[TLLI's] effort to shield

its otherwise unlawful conduct by reference to immigration law that

it knowingly violated for a period of forty months."4

Both Egbuna and the EEOC, as amicus curiae, argue that the trial

court should not have made work authorization part of the prima facie

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4 Under 8 U.S.C.A. § 1324a(a)(2), "[i]t is unlawful for a person or other

entity, after hiring an alien for employment . . ., to continue to employ

the alien in the United States knowing the alien is (or has become) an

unauthorized alien with respect to such employment."

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case stage, but instead should have allowed TLLI to come forward

with Egbuna's undocumented status at the second stage of the

McDonnell Douglas paradigm, as the non-discriminatory motivation

for its action. Then, Egbuna argues, he could at least demonstrate a

material issue of fact as to whether TLLI's proffered justification was

pretextual:

The parties' long employment relationship, most of which

occurred in violation of the IRCA, [and] the glowing recommendation for reemployment from the branch manager in

July 1993 urging creation of a virtually unique position for

appellant [ ] were adequate to put in issue both whether the

Company would have employed appellant in violation of

immigration law in July 1993 and whether in the circumstances the Company was likely to hold the position open

pending appellant's receipt of work authorization.

The EEOC argues that ineligibility to work under the IRCA "represents a potential legitimate, non-discriminatory reason for an employment decision"--not a basis for exclusion from the protections of

Title VII--and "is relevant if the employer actually relied on it in

making the decision." Thus, work authorization should properly be

considered not at the prima facie case stage, but rather at the second

stage, "if and when the employer asserts it as the legitimate, nondiscriminatory explanation for the decision." The plaintiff then has

the opportunity to show that the employer's explanation is pretextual

and that its actual motivation was discriminatory.

The district court's decision endorses a proof scheme that allows

employers who have discriminated to be protected from their discrimination on the basis of information on which they did not rely. In

other words, here TLLI really does not claim that it failed to rehire

Egbuna because of his undocumented status, but it nonetheless is

shielded from its possible Title VII violations because Egbuna turned

out to be undocumented. This is contrary to the Supreme Court's

decision in McKennon v. Nashville Banner Publishing Co., 115 S. Ct.

879 (1995), in which the Court held that, when an employee is fired

for an illegal reason (there a violation of the ADEA), after-acquired

evidence of a legitimate basis for termination does not shield the

employer for liability under the violated statute. Id. at 881.

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This case involves two separate issues, despite TLLI's interest in

collapsing the two. TLLI may very well have violated Title VII; and

Obiora Egbuna did not have work authorization at the time he sought

to be rehired by TLLI. Under the district court's ruling, TLLI would

escape all liability for its possible Title VII violation because of

Egbuna's undocumented status. That would be inappropriate. Instead,

the parties should proceed through the McDonnell Douglas framework. TLLI may assert Egbuna's lack of work authorization as a

legitimate non-discriminatory basis for its decision, and Egbuna may

attempt to show that the asserted basis is pretextual.

III.

We believe that the legislative effort to fight employment discrimination by protecting those who make or support allegations of

improper conduct is best served by holding that a Title VII claimant

need not show work authorization as part of the prima facie case. This

conclusion does no damage to the distinct legislative decision to proscribe the hiring of undocumented workers under the IRCA. As the

Eleventh Circuit noted, uniform application of this nation's labor laws

removes a possible economic incentive to hiring illegal workers. An

applicant's lack of work authorization remains a relevant consideration; it may be proffered by an employer as the legitimate, nondiscriminatory reason for its action, and it may ultimately be relevant

to the question of remedies should a Title VII violation be established.5

We reverse the decision below and remand the case to the district

court for further proceedings consistent with this opinion.

REVERSED AND REMANDED

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5 See Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 889, 902-03 (1984) (reinstatement and backpay may not be appropriate for claimants who have

been deported and therefore are not "available for work"). Sure-Tan

would not necessarily dictate that Egbuna could not be reinstated or

recover backpay, however, because he received work authorization only

a short time after TLLI refused to rehire him. These factual questions are

best left for the district court to consider on remand.

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RUSSELL, Circuit Judge, dissenting:

I respectfully dissent to the panel's holding to remand this case so

that the parties may litigate this question under the McDonnellDouglas framework. Under that framework, an employee is not to be

ordered employed unless he is qualified for the sought-after position.

To be qualified, an alien must possess the requisite employment

authorization. Egbuna is an alien without a green card. He therefore

does not qualify for employment at Time-Life Libraries, Inc., and I

do not think that, merely because he is an alien, the immigration laws

should be held subject to Title VII.

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