2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-6-2009

John McCauley v. Tate & Kirlin Assoc Inc

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-2291

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2009 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"John McCauley v. Tate & Kirlin Assoc Inc" (2009). 2009 Decisions. Paper 505.

http://digitalcommons.law.villanova.edu/thirdcircuit_2009/505
NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 09-2291

___________

JOHN MCCAULEY,

 Petitioner

v.

TATE & KIRLIN ASSOCIATES, INC.

____________________________________

On Petition for Review of an Order of the Office

of the Chief Administrative Hearing Officer

(OCAHO Case No. 08B00013)

_______________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

October 5, 2009

Before: McKEE, HARDIMAN and COWEN, Circuit Judges

(Opinion Filed: October 06, 2009 )

_________

 OPINION

_________

PER CURIAM

John McCauley petitions for review of an order of the Office of the Chief

Administrative Hearing Officer (“OCAHO”) entering summary judgment against him on
 McCauley previously had been terminated by a different employer for refusing to 1

disclose his social security number. He sued that employer in federal court under Title

VII and several other statutory and constitutional provisions. The District Court

dismissed his complaint under Rule 12(b)(6), and we affirmed. See McCauley v.

Computer Aid, Inc., 242 Fed. Appx. 810 (3d Cir. 2007).

2

his claims of citizenship-status discrimination under 8 U.S.C. § 1324b. We will deny his

petition.

I.

Tate & Kirlin Associates, Inc. (“Tate & Kirlin”) hired McCauley as an account

collector. On his first day of work, he refused to disclose his social security number on a

form I-9 and refused to present a copy of his social security card, as a Tate & Kirlin

representative earlier had instructed him he would have to do. Instead, he produced his

birth certificate and passport. After some discussion between McCauley and certain Tate

& Kirlin representatives about whether McCauley was legally required to disclose his

social security number or present a social security card, a Tate & Kirlin representative told

McCauley that he would be terminated if he refused to do so. McCauley again refused and

threatened to sue if Tate & Kirlin terminated him, which it then did.

Thereafter, McCauley filed a complaint with the Special Counsel for ImmigrationRelated Unfair Employment Practices pursuant to 8 U.S.C. § 1324b(c). McCauley, who 1

is and all his life has been a United States citizen, alleged that Tate & Kirlin discriminated

against him on the basis of his citizenship in violation of 8 U.S.C. § 1324b(a). After the

Special Counsel notified McCauley pursuant to 8 U.S.C. § 1324b(d)(2) of his right to
 McCauley also filed a motion for a “declaratory judgment” that he was not legally 2

obligated to provide his social security number. The ALJ, noting that the OCAHO rules

codified at 28 C.F.R. §§ 68.1-68.58 make no provision for the issuance of declaratory

judgments, nevertheless discussed the substance of McCauley’s motion and declined to

issue the declaration. McCauley has not directly challenged that ruling in his briefs, and

we thus do not address it. To the extent that his briefs can be read to challenge the ALJ’s

discussion of the issues he raised in that motion, his arguments are irrelevant to the issues

on appeal for the reasons discussed below. 

3

bring a private action, McCauley filed a complaint with the OCAHO. He alleged that Tate

& Kirlin: (1) terminated him because he is a United States citizen in violation of §

1324b(a)(1)(B); (2) committed so-called “document abuse” by failing to accept his

proffered documents as proof of citizenship, again with the intent to discriminate against

him because of his United States citizenship, in violation of § 1324b(a)(6); and (3)

intimidated him and retaliated against him in violation of § 1324b(a)(5) by terminating

him after he threatened to sue.

After a period of discovery, Tate & Kirlin filed a motion for summary judgment

under 28 C.F.R. § 68.38. The Administrative Law Judge (“ALJ”) granted the motion by

order entered March 5, 2009. McCauley petitions for review.2

II.

We have jurisdiction pursuant to 8 U.S.C. § 1324b(i)(1). We exercise plenary

review over the ALJ’s application of the federal summary judgment standard, though we

give deference to “an agency’s reasonable construction of a statute it is charged with

administering.” Getahun v. Office of the Chief Admin. Hearing Officer, 124 F.3d 591,
 McCauley devotes much of his brief to arguing that he was not required to disclose his 3

social security number, and he claims that he in fact disclosed it on his employment

application. Those arguments are of no moment. Section 1324b prohibits only

discrimination on the basis of citizenship or immigration status. Thus, even if

McCauley’s arguments are true, and even if Tate & Kirlin somehow was mistaken in

requiring his social security number or terminating him for refusing to provide it (all

issues on which express no opinion), Tate & Kirlin’s actions were not in violation of this

statute. While we thus need not address McCauley’s arguments regarding social security

numbers and the employment verification process, we refer him to our discussion of those

issues in his previous appeal. See McCauley, 242 Fed. Appx. at 812-13. McCauley also

makes repeated reference to the affidavit of Dalreese Holman, which he claims the ALJ

wrongfully failed to credit. Mr. Holman’s affidavit, however, contains nothing

suggesting that Tate & Kirlin terminated McCauley because he is a United States citizen

4

594 (3d Cir. 1997). Our review confirms that the ALJ thoroughly and accurately

explained why Tate & Kirlin was entitled to summary judgment on each of McCauley’s

three claims, and we will deny this petition for the reasons already adequately explained in

her opinion. 

In sum, McCauley’s first two claims required him to come forward with some

evidence that, in terminating him and refusing to accept his passport and birth certificate in

lieu of a social security card, Tate & Kirlin acted with the intent to discriminate against

him because he is a United States citizen. See 8 U.S.C. §§ 1324b(a)(1)(B) & (a)(6);

United States v. Diversified Tech. & Servs. of Va., Inc., 9 OCAHO 1095, available at

2003 WL 21130616, at *5, 10-11 (O.C.A.H.O. 2003). We agree that McCauley came

forward with no such evidence. Instead, his evidence showed only that Tate & Kirlin

terminated him because he refused to disclose his social security number, not because he is

a United States citizen.3
(A.R. 109), and neither does any other evidence of record.

5

McCauley’s final claim required him to show that Tate & Kirlin terminated him

because of a threat to file a charge under § 1324b. See 8 U.S.C. § 1324b(a)(5) (prohibiting

interference with “any right or privilege secured under this section” and retaliation for

filing a charge “under this section”) (emphasis added); Arres v. IMI Cornelius Remcor,

Inc., 333 F.3d 812, 813-14 (7th Cir. 2003) (explaining that this prohibition “is limited to

complaints and charges regarding . . . the subject of § 1324b”); Yohan v. Central State

Hosp., 4 OCAHO 593, available at 1994 WL 269185, at *7 (O.C.A.H.O. 1994) (same). 

As the ALJ correctly explained, McCauley admitted at his deposition that he never

threatened to file a charge against Tate & Kirlin under this statute, and did not even know

himself where he would file a claim at the time he threatened to sue. (A.R. 250-52.) 

Moreover, McCauley does not claim that he ever told Tate & Kirlin that he believed it was

discriminating against him because he is a United States citizen, and he acknowledged that

a Tate & Kirlin representative told him that he would be terminated for refusing to present

a social security card even before McCauley issued his vague threat to file a complaint. 

(Id.)

Accordingly, we will deny the petition for review.