The opinion of the court was delivered by: Richard W. Roberts United States District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Juochi Iweala, a black female from Nigeria who was pregnant twice while employed by defendant Operational Technologies Services, Inc. ("OTS") brings this action under Title VII, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981, alleging that OTS discriminated against her because of her race, national origin, and pregnancies. After the close of discovery, OTS moved for summary judgment. Because Iweala failed to exhaust her administrative remedies under Title VII with respect to claims challenging discrete acts alleged to have occurred more than 300 days before she filed her administrative charge, summary judgment will be granted for the defendant with respect to such untimely claims. Because Iweala may bring her claims regardless of her visa status during her employment with OTS and because Iweala has created genuine factual disputes with respect to her timely disparate treatment, retaliation, and hostile work environment claims, the defendant's motion for summary judgment will be denied in all other respects.
Iweala, who worked for OTS as a Computer Systems Analyst/Programmer from 2001 until she was terminated on March 5, 2003, brings her amended complaint under Title VII and § 1981, alleging claims of disparate treatment, retaliation, and hostile work environment. She alleges that among other allegedly discriminatory actions, her supervisors excluded her from meetings, placed her on the bottom of every leader chart for assignments, reprimanded her when other similarly-situated individuals were treated more favorably, treated her rudely, subjected her to profanity, removed her from service on OTS' help desk, and ultimately terminated her because of her race, national origin, and pregnancy status. (Am Compl. ¶¶ 32-35; 38-51.) In addition, Iweala contends that she experienced retaliation after she repeatedly complained to her direct supervisors and other OTS management about her discriminatory treatment. (Id. ¶¶ 62-64.)
OTS has moved for summary judgment contending that Iweala is precluded from bringing her claims under Title VII and § 1981 because Iweala's immigration status made her ineligible for employment while she was employed at OTS. In the alternative, OTS argues that to the extent Iweala's visa status does not preclude her claims, Iweala has not raised a genuine dispute of material fact and OTS is entitled to judgment as a matter of law with respect to all claims.
Federal Rule of Civil Procedure 56(c) provides that summary judgment may be granted "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). A dispute about a material fact is "genuine... if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Facts in dispute are material if they are capable of affecting the outcome of the suit under governing law. Id. In considering a motion for summary judgment, a court must view all evidence and inferences to be drawn from the underlying facts in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
OTS first argues that Iweala has no standing to bring her claims under Title VII or § 1981 because her visa status made her employment with OTS unlawful. (Def.'s Mem. in Support of its Mot. For Summ. J. ("Def.'s Mem.") at 8.) OTS relies on a line of cases from the Fourth Circuit: Egbuna v. Time-Life Libraries, Inc., 153 F.3d 184 (4th Cir. 1998), cert. denied, 525 U.S. 1142 (1999), Chaudhry v. Mobile Oil Corp., 186 F.3d 502 (4th Cir. 1999), and Reyes-Gaona v. N.C. Growers Ass'n, 250 F.3d 861 (4th Cir. 2001). In Egbuna, the Fourth Circuit held that a plaintiff is entitled to remedies under Title VII "only upon a successful showing that the applicant was qualified for employment." 153 F.3d at 187. Egbuna explained that when a job "applicant is an alien, being 'qualified' for the position is not determined by the applicant's capacity to perform the job -- rather, it is determined by whether the applicant was an alien authorized for employment in the United States at the time in question." Id. The Fourth Circuit reaffirmed its position the following year in Chauhdry, stating that a "foreign national is qualified for employment," and therefore entitled to Title VII protection, "if 'the applicant was an alien authorized for employment in the United States at the time in question.'" 186 F.3d at 504 (quoting Egbuna, 153 F.3d at 187).
In addition, OTS also argues that Iweala's claims should be barred under the reasoning of the Supreme Court's decision in Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002). In Hoffman, an employer challenged the NLRB's decision to award backpay to undocumented foreign nationals under the National Labor Relations Act. Hoffman held that the Immigration Reform and Control Act ("IRCA") of 1986 precluded the NLRB from awarding backpay to undocumented foreign nationals because awarding backpay to them "would unduly trench upon explicit statutory prohibitions critical to federal immigration policy... [and] encourage the successful evasion of apprehension by immigration authorities, condone prior violations of the immigration laws, and encourage future violations." 535 U.S. at 151. Nonetheless, in rejecting the backpay award, the Court noted that their decision did "not mean that the employer [got] off scot-free" because the Board had "already imposed other significant sanctions." Id. at 152.
In contrast to the Fourth Circuit's rule, in Rivera v. NIBCO, Inc., 364 F.3d 1057 (11th Cir. 2004), the Eleventh Circuit concluded that the protections of Title VII do apply to undocumented foreign nationals. In Rivera, the plaintiffs, employees of defendant NIBCO, Inc., alleged claims of employment discrimination based on national origin under Title VII. Id. at 1061. NIBCO filed an interlocutory appeal challenging a protective order barring it "from using the discovery process to inquire into the plaintiffs' immigration status and eligibility for employment." Id. Although NIBCO conceded that Title VII applies to undocumented foreign nationals, the Eleventh Circuit, in recognizing NIBCO's concession, explained that NIBCO's concession was "consistent with what [they had] long assumed to be the law of [that] circuit." 364 F.3d at 1064 n.4 (citing EEOC v. Hacienda Hotel, 881 F.2d 1054, 1517 n.10 (9th Cir. 1989)). The Eleventh Circuit also questioned whether Hoffman's limitation on backpay under the NLRA should be extended to bar backpay awards under Title VII, noting the differences between scope of private actions and remedies available under each statute. See id. at 1066-70. Ultimately, it determined that it "need not decide the Hoffman question" at that time because the question of whether undocumented foreign nationals are entitled to backpay "'goes to the issue of damages, not liability.'" Id. at 1069 (quoting Hashimoto v. Dalton, 118 F.3d 671, 676 (9th Cir. 1997)).
Moreover, in Agri Processor Co., Inc. v. NLRB, 514 F.3d 1 (D.C. Cir. 2008), the D.C. Circuit considered whether after IRCA and Hoffman, undocumented workers are employees covered under the NLRA's definition of employee. The court of appeals found that "nothing in IRCA's text alter[ed] the NLRA's [expansive] definition of 'employee,'"*fn1 which had been previously interpreted to include undocumented workers. Agri Processor Co., 514 F.3d at 4. Thus, applying the rule that "'where two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective[,]'" the court of appeals found that undocumented foreign workers were covered under the NLRA's definition of employee. Id. at 4-5 (quoting Ruckelshaus v. Monsanto, 467 U.S. 986, 1018 (1984)) (internal quotation marks omitted). The court expressly rejected the argument that the Supreme Court's decision in Hoffman excluded undocumented foreign workers from protection under the NLRA, noting that the Supreme Court's decision in Hoffman "addressed only what remedies the NLRB may grant undocumented aliens when employers violate their rights under the NLRA," and the Court "explicitly declined to revisit [its previous] holding that undocumented aliens are employees under the NLRA." Id. at 7.
Like the NLRA's definition of employee, Title VII's definition of employee broadly states that "[t]he term 'employee' means an individual employed by an employer," except for a few narrow exceptions not applicable in this case. 42 U.S.C. § 2000e(f). Thus, Title VII, by its sweeping language, would seem to encompass all employees regardless of immigration and visa status. Similarly, § 1981 affords "all persons within the jurisdiction of the United States" the right "to make and enforce contracts." 42 U.S.C. § 1981. OTS identifies no congressional action clearly intending to limit the scope of these broad statutes to exclude foreign nationals without proper work authorizations. Following the reasoning of Agri Processor, because neither Title VII nor IRCA clearly expresses Congress's intent to exclude foreign nationals without proper work visas from Title VII's coverage, Iweala's visa status and eligibility for employment with OTS should not preclude her from protection under Title VII, although her visa status and eligibility for employment may limit her remedies. It is ...