======================= EEOC v. SSN case (1992) ======================= ==================== Overview of the Case ==================== In 1992, the EEOC (Equal Employment Opportunity Commission) filed an action in U.S. District Court, Northern District of Texas, Dallas Division (CA3-92-0169-T) against Information Systems Consulting (I.S.C.) for firing Bruce Hanson (an employee) on 8-15-89 solely because he would not provide the company with a SSN that he did not have due to his religious beliefs. The EEOC argued that firing an employee for not having a SSN due to his religious beliefs was religious discrimination, especially in light of 26 U.S.C. 6724. Section 6724 provides that where an employeer asks an employee for a SSN, but is not provided a SSN, the employer can request the IRS for a waiver of penalties for failing to provide the employee's SSN on withholding and other forms submitted to the IRS. This case resulted in a consent decree in which the company agreed as follows: "8. The defendant, Information Systems Consulting, A Division of Diversified Human Resource Group, shall be permanently enjoined from terminating an employee or refusing to hire an individual for failure to provide a social security number because of religious beliefs." [COOL!] The part of the consent decree with which BTP-NG strongly disagrees (believe has no basis or merit in law) was where it was agreed that: "6. The defendant [I.S.C.] shall make legal deductions for with- holding of Federal income taxes and the employee portion of social security from the backpay checks. The defendant shall include with the check, an itemized statement indicating specific amounts paid and deductions made. All W-2 forms shall be provided as required by law." After all, if an employee has NO SSN, then he owes NO Soc. Sec. taxes (withholding) as there is NO jurisdiction to impose Soc. Sec. taxes !! That some workers do NOT have SSNs and thus are NOT subject to pay Soc. Sec. taxes, see the BTP-NG home page (www.slip.net/~boston/), SOCIAL SECURITY QUIZ, Quiz Question #3 (two U.S. Supreme Court cases). These two U.S. Supreme Court cases plus Congress' declared intent that citizens do NOT have to get a SSN (Quiz Question #3) reveal this lower Court's dicta (statement not on point to the facts of the case and thus of no legal consequence) on p.105, ie. "The fact that federal law requires an employee to obtain a social security number has no bearing on", to be pure Soc. Sec. politics -- we can't let it totally out of the bag that citizens really don't have to have a SSN to work in America !! ===================== Key Documents + Pages ===================== NOTE: Not all the documents in the case were Bates Stamped in chronological order. Hint - to quickly go to any page, just search for the page number with a "00" in front of the number, eg. to go to the "Consent Decree" (the final disposition of the case) on page 77, just search for "0077". Pages ... 002 - 005 "COMPLAINT" (1-27-92). 009 - 011 "DEFENDANT'S MOTION TO DISMISS" (3-9-92). 012 - 036 "BRIEF IN SUPPORT OF DEFENDANT'S MOTION TO DISMISS" (3-9-92). - 018 ISC claims that, without exception, an employee such as Hanson is required by federal law to obtain a SSN and disclose it to his employer. [WRONG!] 040 - 073 "PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION TO DISMISS" (4-1-92). - 050 EEOC points out there is no absolute requirement that an employer provide a SSN to the IRS. - 051 EEOC points out that ISC could have easily avoided any IRS penalties for failing to provide a SSN for Hanson by (1) asking Hanson for a SSN and (2) filing an affidavit with the IRS stating Hanson's SSN had been requested. - 069 Fitzpatrick of ISC relates that the IRS "misinformed" ISC (as it turned out later, see p.72) that ISC was in violation of the Internal Revenue Code and subject to penalties for not obtaining a SSN from Mr. Hanson. - 072 EEOC's "Letter of Determination" points out that ISC would NOT have been in violation of any code nor subject to any penalties for NOT being able to provide a SSN from Mr. Hanson, ie. could have filed a "reasonable cause" affidavit. 077 - 084 COURT's "CONSENT DECREE" -- THE FINAL DISPOSITION (10-30-92). _____ 091 - 100 "REPLY TO PLAINTIFF'S RESPONSE TO MOTION TO DISMISS" (4-16-92). 101 - 106 COURT's "ORDER DENYING DEFENDANTS MOTION TO DISMISS" (4-20-92). - 105 Court points out that there is no Federal law requiring an employee to be terminated due to their rufusal to obtain a SSN. 107 - 109 "DEFENDANTS ORIGINAL ANSWER" TO THE EEOC COMPLAINT (4-30-92). =========================== Editing Shortcuts and Notes =========================== All notes from the editor inserted into the actual case are noted in [BRACKETED CAPS] to distinguish any editor's notes from the actual text of the case. [bracketed small letters] indicate an obviously mispelled word in the text of the case that has been corrected. Principally to save space, double spacing of lines, wide margins, etc. were all eliminated. Otherwise, great care was taken to make this text file be as close a duplicate to the actual case as possible. Each page of the case received from the EEOC came with a bold, 6-digit Bates Stamp number, running from "000001" to "000110", 110 pages total. Accordingly, at the far BOTTOM RIGHT of each page that follows, we have included the 6-digit number stamp (followed by a dashed page break) corresponding to the actual page of the case. So, if the BOTTOM RIGHT of a page reads (000050) followed by a dashed line, then ABOVE the (000050) is the actual text that appeared on page "50" of the case. This also makes it easy to discuss the case with others -- "check out p.50 where it says..." Further, to know which document a page is from, a shortened title for each document has been placed at the far BOTTOM LEFT of the page in [BRACKETED CAPS]. Two important pages are missing: the I.N.S. I-9 form (p.37) and its instructions (p.38). You may want to get a copy of these to review. If you find any spelling or other errors that we missed, please notice us via e-mail. Thanks. Our many thanks to Greg at "http://www.flash.net/~ericg/" for doing the original, rough scanning/OCR work on this text file !! We, in turn, put in many additional days of correcting errors to get this case into this final, polished version. ---------------------------------- Provided Courtesy of Boston Tea Party - Next Generation boston@slip.net http://www.slip.net/~boston/ ---------------------------------- =============================== BEGIN CASE =============================== CIVIL COVER SHEET [THIS PAGE IS A COMPLEX COURT FORM WITH MANY TINY BOXES AND NUMBERS -- MOST OF IT NOT FILLED IN. WHAT PERTINENT INFORMATION THERE WAS IS PROVIDED BELOW]. PLAINTIFFS DEFENDANTS EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Information Systems Consulting 8303 Elmbrook Drive, 2nd Floor A Division of Diversified Human Dallas, Texas 75247 Resources CA3-92-0169-T [COURT STAMP "Received JAN 27 1992"] ATTORNEYS (FlRM NAME, ADDRESS, AND TELEPHONE NUMBER) KATHERINE E. BISSELL Supervisory Trial Attorney Equal Employment Oppertunity Commission 8303 Elmbrook Drive Dallas, Texas 75247 (214) 767-7948 BASIS OF JURISDICTION xx U.S. Government Plaintiff CAUSE OF ACTION The EEOC claims that the Defendant violated Title VII of the Civil Rights Act of 1964, as amended by discharging Bruce Hanson because of his religion. SIGNATURE OF ATTORNEY OF RECORD 1/27/92 [SIGNATURE OF KATHERINE E. BISSELL] [CIVIL COVER SHEET] (000001) ---------------------------------------------------------------------------- IN THE UNITED STATES DISTRICT COURT [COURT STAMP FOR THE NORTHERN DISTRICT OF TEXAS "FILED JAN 27 DALLAS DIVISION 1992"] EQUAL EMPLOYMENT OPPORTUNITY ) COMMISSION, ) ) CIVIL ACTION NO. Plaintiff, ) CA3-92-0169-T ) v. ) ) C0MPLAINT INFORMATION SYSTEMS CONSULTING ) A DIVISION OF DIVERSIFIED HUMAN ) RESOURCES GROUP, ) ) Defendant. ) -------------------------------------) NATURE OF THE ACTION This is an action under Title VII of the Civil Rights Act of 1964 to correct unlawful employment practices on the basis of religion, Christian Fundamentalist, and to make whole Bruce Hanson. Bruce Hanson was terminated by the Defendant because he refused to obtain a Social Security number. Bruce Hanson advised the Defendant that obtaining or using a Social Security number was in conflict with his religious beliefs. JURISDICTION AND VENUE 1. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. Sections 451, 1331, 1337, 1343, and 1345. This action is authorized and instituted pursuant to Section 706(f)(1) and (3) of Title VII of the Civil Rights Act of 1964, as amended, ("Title VII"), 42 U.S.C. Section 2000-5(f)(1) and (3). 2. The employment practices alleged to be unlawful were and are now being committed within the jurisdiction of the United [COMPLAINT - 1] (000002) ---------------------------------------------------------------------------- States District Court for the Northern District of Texas, Dallas Division. PARTIES 3. Plaintiff, Equal Employment Opportunity commission (the "Commission"), is an agency of the United States of America charged with the administration, interpretation, and enforcement of Title VII, and is expressly authorized to bring this action by Section 706(f)(1) of Title VII, 42 U.S.C. Section 2000e-5(f)(1). 4. At all relevant times, Defendant, Information Systems Consulting, A Division of Diversified Human Resources Group ("Information Systems"), has continuously been and is now doing business in the State of Texas and the City of Dallas, and has continuously had at least fifteen employees. 5. At all relevant times, Defendant has continuously been an employer engaged in an industry affecting commerce within the meaning of Section 701(b), (g), and (h) of Title VII, 42 U.S.C. Section 20OOe-(b), (g), and (h). STATEMENT OF CLAIMS 6. More than thirty days prior to the institution of this lawsuit, Bruce M. Hanson filed a charge with the Commission alleging violations of Title VII by the Defendant. All conditions precedent to the institution of this lawsuit have been fulfilled. 7. Since at least August 15, 1989, the Defendant has engaged in unlawful employment practices at its Dallas facility in violation of Section 703(a) of Title VII, 42 U.S.C. Section 2000e- [COMPLAINT - 2] (000003) ---------------------------------------------------------------------------- 2(a). The Defendant discharged Bruce Hanson and refused to accommodate his religion, Christian Fundamentalist. 8. The effect of the practices complained of above has been to deprive Bruce Hanson of equal employment opportunities and otherwise adversely affect his status as an employee because of his religion. PRAYER FOR RELIEF Wherefore, the Commission respectfully requests that this Court: A. Grant a permanent injunction enjoining the Defendant, Information Systems, its officers, successors, assigns, and all persons in active concert or participation with it, from engaging in any employment practice which discriminates on the basis of religion. B. Order the Defendant to institute and carry out policies, practices, and programs which provide equal employment opportunities for employees of all religious denominations and/or beliefs, and which eradicate the effects of its past and present unlawful employment practices. C. Order the Defendant to make whole Bruce Hanson, by providing appropriate backpay with prejudgment interest, in amounts to be proved at trial, and other affirmative relief necessary to eradicate the effects of its unlawful employment practices. [COMPLAINT - 3] (000004) ---------------------------------------------------------------------------- D. Grant such further relief as the Court deems necessary and proper. E. Award the Commission its costs in this action. Respectfully submitted, DONALD R. LIVINGSTON General counsel PHILIP B. SKLOVER Associate General Counsel [SIGNATURE] JEFFERY C. BANNON Regional Attorney Connecticut State Bar No. 301166 [SIGNATURE] KATHERINE E. BISSELL Supervisory Trial Attorney Texas Bar No. 02356020 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Dallas District Office 8303 Elmbrook Drive, 2nd Floor Dallas, Texas 75247 (214) 767-7948 (FTS) 729-7948 [COMPLAINT - 4] (000005) ---------------------------------------------------------------------------- IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION EQUAL EMPLOYMENT OPPORTUNITY ) COMMISSION, ) ) CIVIL ACTION NO. Plaintiff, ) CA3-92-0169-T ) v. ) ) INFORMATION SYSTEMS CONSULTING ) A DIVISION OF DIVERSIFIED HUMAN ) RESOURCES GROUP, ) ) Defendant. ) -------------------------------------) NOTICE TO: Information Systems Consulting A Division of Diversified Human Resources Group c/o Cameron Dee Sewell 1717 Main Street Suite 4400 Dallas, Texas 75201 The enclosed Summons and Complaint are served pursuant to Rule 4(c)(2)(C)(ii) of the Federal Rules of Civil Procedure. You must complete the acknowledgment part of this form and return one copy of the completed form to the sender within twenty (20) days. You must sign and date the acknowledgement. If you are servd on behalf of a corporation, unincorporated association (including a partnership), or other entity, you must indicate under your signature your relationship to that entity. If you are served on behalf of another person and you are authorized to receive process, you must indicate under your signature your authority. If you do not complete and return this form to the sender [NOTICE - 1] (000006) ---------------------------------------------------------------------------- within twenty (20) days, you, (or the party on whose behalf you are being served) may be required to pay any expenses incurred in serving the Summons and Complaint in any other manner permitted by law. If you do complete and return this form, you, (or the party on whose behalf you are being served), must answer the Complaint within twenty (20) days. If you fail to do so, judgment by default will be taken against you for the relief demanded in the Complaint. I declare under penalty of perjury, that this Notice and Acknowledgement of Receipt of Summons and Complaint were mailed by U.S. Certified Mail, Return Receipt Requested on the ___ day of __________, 19___. [SIGNATURE] KATHERINE E. BISSELL Supervisory Trial Attorney Texas Bar No. 01235020 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Dallas District office 8303 Elmbrook Drive., 2nd Floor Dallas, Texas 75247 (214) 767-7948 (FTS) 729-7948 [NOTICE - 2] (000007) ---------------------------------------------------------------------------- UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, SUMMONS IN A CIVIL ACTION v. CASE NUMBER: CA3-92-0169-T INFORMATION SYSTEMS CONSULTING A DIVISION OF DIVERSIFIED HUMAN RESOURCES GROUP, Defendant. TO: (Name and Address of Defendant) Information Systems Consulting A Division of Diversified Human Resources Group c/o Cameron Dee Sewell 1717 Kain Street, #4400 Dallas, Texas 75201 YOU ARE HEREBY SUMMONED and required to file with the Clerk of this Court and serve upon PLAINTIFF'S ATTORNEY (Name and Address) KATHERINE E. BISSELL, SUPERVISORY TRIAL ATTORNEY EQUAL EMPLOYMENT OPPORTUNITY COMMISSION DALLAS DISTRICT OFFICE 8303 ELMBROOK DRIVE, IND FLOOR DALLAS, TEXAS 75247 (214) 767-7948 An answer to the complaint which is herewith served upon you, within twenty (20) days after service of this summons upon you, exclusive of the day of service. If you fail to do so, judgment by default will be taken against you for the relief demanded in the complaint. CLERK DATE [SIGNATURE] DEPUTY CLERK [SUMMONS - 1] (000008) ---------------------------------------------------------------------------- IN THE UNITED STATES DISTRICT COURT [COURT STAMP FOR THE NORTHERN DISTRICT OF TEXAS "FILED MAR 9 DALLAS DIVISION 1992"] EQUAL EMPLOYMENT OPPORTUNITY ) COMMISSION, ) ) CIVIL ACTION NO. Plaintiff, ) CA3-92-0169-T ) v. ) ) INFORMATION SYSTEMS CONSULTING ) A DIVISION OF DIVERSIFIED HUMAN ) RESOURCES GROUP, ) ) Defendant. ) -------------------------------------) DEFENDANT'S MOTION TO DISMISS TO THE HONORABLE ROBERT MALONEY, UNITED STATES DISTRICT JUDGE: Defendant, INFORMATION SYSTEMS CONSULTING ("ISC"), formerly a division of DIVERSIFIED HUMAN RESOURCES GROUP ("DHRG"), moves the Court to dismiss the Plaintiffs Complaint asserting claim of religious discrimination under Fed.R.Civ.P. 12(b)(6) for failure to state a claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C.  2000e et seq. ("Title VII"), upon which relief can be granted. 1. On January 27, 1992, the Equal Employment Opportunity Commission ("EEOC") filed suit against ISC alleging that the Company discriminated against Bruce Hlanson because of his religious beliefs. 2. At a minimum, to assert a prima facie claim of Religious discrimination under Title VII, the EEOC must allege in the Complaint the following elements: A. an employee has a bona fide religious Belief that conflicts with an ISC employment requirement: B. the employee informed the employer of this belief, and [DEFENDANT'S MOTION TO DISMISS - 1] (000009) ---------------------------------------------------------------------------- C. the employee was disciplined for failure to comply with a conflicting ISC Employment requirement. Turpen v. Missouri-Kansas-Texas Railroad Co., 736 F.2d 1002, 1026 (5th cir. 1984); 3. The EEOC has failed to allege that Mr. Hanson had a bona fide or truly held religious belief that conflicted with an employment rule or requirement of ISC and that he was terminated for failure to comply with the conflicting employment rule or requirment of ISC. Because the EEOC has failed to allege a prima facie case of religious discrimination, the Complaint should be dismissed under Fed.R.Civ.P. 12(b)(6). 4. In support of this motion, ISC is submitting herewith a Brief in Support of its Motion to Dismiss, which is incorporated herein by reference. WHEREFORE, PREMISES CONSIDERED, ISC, respectfully prays that this motion be granted, and that the EEOC's Complaint predicated upon Title VII be dismissed with prejudice, and that ISC recover its costs, expenses, and attorney's fees, and such other and further relief, legal or equitable, which it may be justly entitled to receive. Respectfully submitted, GARDERE & WYNNE A Registered Limited Liability Partnership 1601 Elm Street, Suite 3000 Thanksgiving Tower Dallas, Texas 75201 Telephone: (214) 999-3000 Telecopier: (214) 999-4270 By: [SIGNATURE] Dan Hartsfield State Bar No. 09170800 T. Michele Baird State Bar No. 01561600 [DEFENDANT'S MOTION TO DISMISS - 2] (000010) ---------------------------------------------------------------------------- CERTIFICATE OF SERVICE This certifies that on the 9th day of March, 1992, a true and correct copy of the foregoing Defendant's Motion to Dismiss was served by certified mail, return receipt requested upon the following: [KATHERINE E. BISSELL, ADDRESS] [SIGNATURE] T. Michele Baird [DEFENDANT'S MOTION TO DISMISS - 3] (000011) ---------------------------------------------------------------------------- IN THE UNITED STATES DISTRICT COURT [COURT STAMP FOR THE NORTHERN DISTRICT OF TEXAS "FILED MAR 9 DALLAS DIVISION 1992"] EQUAL EMPLOYMENT OPPORTUNITY ) COMMISSION, ) ) CIVIL ACTION NO. Plaintiff, ) CA3-92-0169-T ) v. ) ) INFORMATION SYSTEMS CONSULTING ) A DIVISION OF DIVERSIFIED HUMAN ) RESOURCES GROUP, ) ) Defendant. ) -------------------------------------) DEFENDANT'S BRIEF IN SUPPORT OF ITS MOTION TO DISMISS Information Systems Consulting ("ISC" or the "Company") files this brief in support of its motion to dismiss the Complaint filed by the Equal Employment Opportunity Commission ("EEOC") and, pursuant to Fed.R.Civ.P. 12(b)(6), would show the following: I. SUMMARY OF THE EEOC's CLAIM In its Complaint filed on January 27, 1992, the EEOC attempts to allege a violation of section 703(a)(1) of the Civil Rights Act of 1964, Title VII, 42 U.S.C.  20OOe-2(a)(1). Section 703(a)(1) makes it an unlawful employment practice for an employer to discriminate against an employee or a prospective employee on the basis of his or her religion. In short, the EEOC alleges that ISC violated Title VII's prohibition on religious discrimination by terminating Mr. Hanson on August 15, 1989 because he refused to comply with federal law by obtaining or providing a social security number. As a matter of law, the [DEFENDANT'S BRIEF IN SUPPORT OF MOTION TO DISMISS - 1] (000012) ---------------------------------------------------------------------------- EEOC's allegations of religious discrimination do not state a claim upon which relief can be granted, and the Complaint should be dismissed under Fed.R.Civ.P 12(b)(6) II. ARGUMENT AND AUTHORITIES Plaintiff's Complaint should be summarily dismissed under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. The EEOC has failed to allege - and cannot allege - the elements necessary to state a claim for religious discrimination under Title VII. At a minimum, three elements must be averred to establish a prima facie claim for religious discrimination under Title VII: (1) an employee has a bona fide religious belief that conflicts with an employment requirement; (2) the employee informed the employer of this belief; and (3) the employee was disciplined for failure to comply with a conflicting employment requirement. Turpeit v. Missouri-Kansas-Texas Railroad Co., 736 F.2d 1022, 1026 (5th Cir. 1984); Brener v. Diagnostic Center Hospital, 671 F.2d 141, 144 (5th Cir. 1982). Failure to plead the elements of a cause of action under Title VII is proper grounds for dismissal under Fed.R.Civ.P. 12(b)(6). Manders V. State of Oklahoma Dept. of Mental Health, 875 F.2d 263 (10th Cir. 1989). In this case, the EEOC has failed to allege that (a) Mr. Hanson had a bona fide religious belief that conflicted with an employment requirement of ISC; and (b) that Mr. Hanson was terminated for failure to comply with the conflicting employment requirement of ISC. Since the defects of the Complaint cannot be cured by amendment, ISC is entitled to the entry of an order of dismissal with prejudice. [DEFENDANT'S BRIEF IN SUPPORT OF MOTION TO DISMISS - 2] (000013) ---------------------------------------------------------------------------- 1. The EEOC has failed to allege that Mr. Hanson had a sincere or bona fide religious belief. As Originally enacted, Title VII prohibited discrimination based on "religion" but did not define the term or otherwise indicate the boundaries of the "beliefs" being protected. The 1972 amendments to Title VII added section 701(j): "The term 'religion' includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee's or prospective employees' religious observance or practice without undue hardship on the conduct of the employer's business." 42 U.S.C.  2000e(j). While this definition evidences that Congress intended to protect not only religious beliefs but also religious "observance and practice," it did nothing to aid the Courts in determining the breadth of the "beliefs" to be protected, other than the beliefs must be "religious." 1 The Courts, however, have received guidance from cases seeking to determine what exempts a person from military service "by reason of religious training and belief." See Military Selective Service Act, 50 U.S.C.  456(j). In Welsh v. United States, 398 U.S. 333 (1970), a plurality of the Supreme Court opined: "The test might be stated in these words: A sincere and meaningful belief which occupies in the life of its possessor a place parallel to that filled by the God of those admittedly qualifying for the exemption comes within the statutory definition." 380 U.S. at 176 (emphasis supplied). ----- 1 The 1967 EEOC guideline on religious discrimination which established the "reasonable accommodation" theory of discrimination did not attempt to define religion but to refer to "religious needs," "religious beliefs," and "religious practices." 29 C.F.R  1605.1 (July 10, 1967). Section 1605.1 is set out in full in the District Court opinion in Dewey v. Reynolds Metals Co., 300 F.Supp. 709, 712 (W.D. Mich. 1969), rev'd by 402 U.S. 689. [DEFENDANT'S BRIEF IN SUPPORT OF MOTION TO DISMISS - 3] (000014) ---------------------------------------------------------------------------- The EEOC adopted an expansive version of the Welsh rule in 1980 revisions to its Guidelines on Discrimination Because of Religion. 29 C.F.R.  1605 et seq. The EEOC declares that it will define "religious practices to include moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views." 29 C.F.R.  1605.1 (emphasis supplied). The "sincerity" element of a claim of religious discrimination under Title VII is uniformly recognized but has not been extensively litigated. In Hansard v. Johns-Mansville Products Corp., 5 F.E.P. Cases 707, 708 (E.D. Tex. 1973), the Court concluded that the plaintiff had not demonstrated the "requisite sincerity of religious convictions." Other cases have found the belief at issue to be "sincere" or to constitute a "bona fide" religious belief. See, e.g., Kettell v. Johnson and Johnson, 337 F.Supp. 892, 893 (E.D. Ark 1972); McGinnis v. U.S. Postal Service, 512 F.Supp. 517, 520 (N.D. Cal. 1980). 2 While the "truth" of a belief is irrelevant whether or not it is "truly held" is relevant and a necessary element of Plaintiff's claim. Since as in Hansard and McGinnis, the emplover has no duty to accommodate until plaintiff establishes a sincere religious belief, there must, at a minimum, be an allegation of "sincerity" in the Complaint. Under Title VII, the EEOC has the burden to allege and prove that Mr. Hansen's beliefs are "sincere" or "bona fide." See, e.g., Philbrook v. Ansoina Board of Education, 757 F.2d 476 (2d Cir. 1985), judgment aff'd and remanded by 479 U.S. 60 (1986). ----- 2 Cf. Wessling v. Kroger Co., 554 F.Supp. 548 (E.D.Mich. 1982) (decorating church hall and preparing for Christmas play did not constitute religious observances protected by Title VII); McCrory v. Rapides Regional Medical Center, 635 F. Supp. 975 (W.D. La. 1986), aff'd, 801 F.2d 396 (5th Cir. 1986)(adultery is not an expression of religious belief entitled to protection under Title VII). [DEFENDANT'S BRIEF IN SUPPORT OF MOTION TO DISMISS - 4] (000015) ---------------------------------------------------------------------------- According to the Complaint, Mr. Hanson is a Christian Fundamentalist. The EEOC claims that he was discharged because hie refused to obtain a social security number. (Plaintiff's Complaint, p.1). The EEOC fails to assert that his religious beliefs are bona fide or sincerely held. The EEOC also falls to allege that Mr. Hanson's bona fide or sincerely held religious beliefs precluded him from obtaining or furnishing a social security number to ISC. Similarly, the EEOC has omitted any allegation that Mr. Hanson's refusal to obtain or provide a social security number is grounded upon a sincerely held tenet or doctrine of a Christian Fundamentalist group to which Mr. Hanson belongs or even an individualized bona fide religious belief held by Mr. Hanson. Because the Complaint is totally bereft of any allegations that the religious belief at issue is "sincerely held" or "bona fide," the EEOC has failed to allege a necessary element for a claim of religious discrimination under Title VII. Accordingly, the Complaint should be dismissed pursuant to Fed.R.Civ.P. 12(b)(6). 2. The EEOC has failed to allege - and cannot allege - that Mr. Hanson had a sincere or bona fide religious belief that conflicted With an ISC employment requirement and/or that he was terminated because of a conflict with the ISC employment requirement. To state a claim under Title VII for religious discrimination, the EEOC must also allege that the employee's "bona-fide" religious belief conflicted with an employment rule or requirement of the Company and that the employee was terminated because of the conflict between the Company's employment rule and the employee's religious beliefs. Turpen v. Missouri-Kansas-Teas R. Co., 736 F.2d 1022, 1026 (5th Cir. 1984). No such conflict has been alleged by the EEOC in this case. Typically, an employee's religious belief conflicts with a company's attendance policy or work scheduling requirements. See, e.g. EEOC Guidelines on Discrimination Because [DEFENDANT'S BRIEF IN SUPPORT OF MOTION TO DISMISS - 5] (000016) ---------------------------------------------------------------------------- of Religion, 29 C.F.R  1605.2(d). There are, of course, other instances when an employment policy or rule adopted by all employer conflicts with the religious beliefs of an employee. 3 Without exception, religious discrimination cases arising under Title VII challenge employment policies and practices which have been adopted or promulgated by the employer or which were contained within a collective bargaining agreement. See e.g., Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977)(conflict with seniority system in collective bargaining agreement). There lies the incurable defect with the EEOC's present position. In this unprecedented case, the EEOC has not asserted, and apparently is not challenging, any employment rule or requirement promulgated by ISC. Instead, the EEOC contends that Mr. Hanson's religious beliefs conflict with federal law, not any employment rule adopted or imposed by the Company, and because he was terminated for failure to comply with federal law, ISC is somehow guilty of religious discrimination. To our knowledge, with the exception of the present case, no other religious discrimination case ever brought under Title VII has been grounded on a requirement that the employer and employee violate tax and immigration laws in order to comply with EEOC laws. Because this novel theory is based upon a conflict between the employee's asserted religious beliefs and obligations imposed by federal law, and not an employment rule of ISC, the Complaint falls to state a claim under Title VII. ----- 3 Other religious practices potentially at odds with an employer's rules and regulations concern the observance of a Sabbath or other religious holiday; the need for prayer break during working hours; the practice of following certain dietary requirements; the prohibition against medical examination; and practices concerning dress and other personal grooming habits. See EEOC Guidelines on Discrimination Because of Religion, Appendix A to  1605.2 and 1605.3. [DEFENDANT'S BRIEF IN SUPPORT OF MOTION TO DISMISS - 6] (000017) ---------------------------------------------------------------------------- Presumably the EEOC will acknowledge that an employee such as Mr. Hanson is required by federal law to obtain a social security number and disclose it to his employer. No exception to this legal obligation exists for Mr. Hanson. Additionally, the EEOC will likely concede that an employer such as ISC is obligated to report earnings and other matters to the Internal Revenue Service ("IRS") and maintain immigration records (e.g. I-9 form) by utilizing an employee's social security number. The Complaint does not articulate that a statutory or common law exception exists - whether under tax, immigration or EEO laws - that excuses either Mr. Hanson or ISC from these legal obligations. Rather, the EEOC contends that even though Mr. Hanson's refusal to use a social security number is a violation of federal tax and immigration laws, ISC was required to accommodate and condone this unlawful conduct because the penalties that may be imposed upon ISC are minor or avoidable. In other words, the EEOC's untenable theory of this case demands that employers such as ISC examine their conduct not by its legality but rather by the resulting legal penalty. According to the EEOC, if the penalty is severe, ISC should choose to comply with the law and claim undue hardship if sued for religious discrimination; if not, ISC should abandon efforts to comply with the law in order to accommodate the employee's religious beliefs. In other words, an employee's religious beliefs should be given priority, under Title VII over compliance with other federal laws with alleged de minimus legal penalties or fines. 4 ----- 4 The Supreme court has held that Title VII requires an employer to make only those accommodations to an employee's religious beliefs or practices that do not impose more than a de minimus cost to the employer. Accommodation that would require an employer to incur a greater than de minimus cost constitutes undue hardship. Transworld Airlines, Inc. v. Hardison, 432 U.S. 63, 84 (1977). [DEFENDANT'S BRIEF IN SUPPORT OF MOTION TO DISMISS - 7] (000018) ---------------------------------------------------------------------------- A. Obligations Imposed by the Internal Revenue Code. ISC is required, as a matter of law, to obtain Mr. Hanson's social security number in order to withhold, pay, deposit, and report his wages for the following taxes: (1) federal income tax; (2) social security tax; (3) medicare tax; and (4) federal unemployment tax. Internal Revenue Code ("IRC" or the "Code")  6051; Treas. Reg.  301.6051-2. In connection with the withholding of various taxes, ISC is required by law to file a W-3 for the Company with W-2's attached for all employees. Section 6109 (a)(3) of the Code required ISC to include Mr. Hanson's social security number on each of these information returns, including Hanson's individual W-2 form. Every taxpayer must be identified by a taxpayer identification number ("TIN"). 5 This identifying number must be included on every required tax paper filed with the IRS. It must also be furnished on request to every employer and everyone else who pays to the taxpayer income required to be reported to the IRS. Persons such as employers, who pay taxpayer income required to be reported, must request the employee to furnish his social security number, and must include the number on their information returns. Internal Revenue Code,  6109; Treas. Reg.,  301.6109-1. Section 6109 of the Code, entitled "Identifying numbers," makes these obligations mandatory upon both employers and employees: "(a) Supplying of identifying numbers. When required by regulations prescribed by the secretary; ----- 5 There are two types of taxpayer identification numbers: social security numbers and employer identification numbers. Social security numbers identify individuals while employer identification numbers identify corporations, partnerships and similar entities. 26 C.F.R.  301.6109.1 [DEFENDANT'S BRIEF IN SUPPORT OF MOTION TO DISMISS - 8] (000019) ---------------------------------------------------------------------------- (1) Inclusion in returns. Any person required ... to make a return, statement, or other document shall include in such return, statement, or other document such identifying number as may be prescribed for securing proper identification of such person. (2) Furnishing number to other persons. Any person with respect to whom a return, statement, or other document is required ... to be made by another person or whose identifying number is required to be shown on a return of another person shall furnish to such other person such identifying number as may be prescribed for securing his proper identification. (3) Furnishing number of another person. Any person required ... to make a return, statement, or other document with respect to another person shall request from such other person, and shall include in any such return, statement, or other document, such identifying number as may be prescribed for securing proper identification of such other person. * * * For purposes of this subsection, the identifying number of an individual (or his estate) shall be such individual's social security account number. * * * (d) Use of Social Security Account Number. The social security account number issued to an individual for purposes of section 205(c)(2)(A) of the Social Security Act shall ... be used as the identifying number for such individual for purposes of this title." Internal Revenue Code,  6109 (emphasis supplied). The regulations issued under  6109 reiterate the obligation of both employers and employees to utilize an employee social security number. For example, Treasury Regulation  31.6109 (26 C.F.R.  31.6109-1) mandates that for all returns, statements; and other documents required to be filed with the IRS after April 15, 1974 "shall reflect such identifying numbers as are required ...." [DEFENDANT'S BRIEF IN SUPPORT OF MOTION TO DISMISS - 9] (000020) ---------------------------------------------------------------------------- The Treasury Regulations ( 301.6109.1) expressly impose upon Mr. Hanson the affirmative, mandatory obligation to provide ISC with his social security number. This regulation provides, in revelant part, as follows: "301.6109-1 Identifying numbers. (b) Use of one's own number. Every person who files ... a return, statement, or other document shall furnish his taxpayer identifying number as required by the forms and instructions relating thereto. A person whose number must be included on a document filed by another person shall give the taxpayer identifying number so required to the other person on request .... (c) Use of another's number. Every person required ... to file a return, statement or other document shall furnish such taxpayer identification numbers of other persons as required by the forms and the instructions relating thereto. If he does not know the taxpayer identification number of the other person, he shall request such number of the other person. A request should state that the identifying number is required to be furnished under authority of law. 6 When the person filing the return, statement, or other document does not know the number of the other person, and has complied with the request provision of this paragraph, he shall sign an affidavit on the transmittal document forwarding such returns, statements or other documents to the Internal Revenue Service, so stating .... (d) Obtaining a taxpayer identifying number - (1) Social Security Number. Any individual required to furnish a social security number shall apply for one, if he has not done so previously, on Form SS-5 .... He shall make such application far enough In advance of the first required use of such number to permit issuance of the number in time for compliance with such requirement. .... Individuals who are ineligible for or do not want to participate in the benefits of the social security program shall obtain a social security number if they are required to furnish such a number pursuant to paragraph (b) of this section." ----- 6 It is undisputed that ISC submitted the appropriate tax and immigration papers to Mr. Hanson upon being hired, but he refused to complete the government forms by omitting his social security number. It is also undisputed that ISC advised Mr. Hanson that his social security number was required to be furnished to the Company under authority of law. Treas. Reg.  301.6109-1(c). In refusing to furnish ISC with his social security number, after these requests, Mr. Hanson violated the obligations imposed by Treas. Reg.  301.6109-1(b). [DEFENDANT'S BRIEF IN SUPPORT OF MOTION TO DISMISS - 10] (000021) ---------------------------------------------------------------------------- 26 C.F.R.  301.6109-1(b), (c) and (d). It is irrelevant, for purposes of analyzing the EEOC's claim whether Mr. Hanson actually had a social security number on his date of hire. Upon being hired by ISC, Mr. Hanson was required by the tax laws and regulations to provide the Company with his social security number. If he lacked one, the regulations require that he promptly obtain a social security number. Once obtained, Mr. Hanson was obligated to provide it to ISC. This he refused to do. The legal violation is not a gray issue. IRS regulations deal specifically with the duty of employees with respect to obtaining and furnishing social security numbers. Regulation 31.6011(b)-2 requires employees to obtain a social security number: "On or after November 1, 1962. Every employee who on any day after October 31, 1962, is in employment for wages which are subject to the taxes imposed by the Federal Insurance Contributions Act or which are subject to the withholding of income tax from wages under section 3402 but who prior to such day has neither secured an account number nor made application therefore, shall make an application on Form SS-5 for an account number." Treas. Reg.  31.6011(b)-2(a)(1)(ii)("Employee account numbers"). An employee who lacks a social security number must apply for one within seven days of his or her date of hire: "Time for filing Form SS-5. The application shall be filed on or before the seventh day after the occurrence of the first day of employment ...." Treas. Reg.  31.6011(b)-2(a)(2). There is no exception or exemption for complying with these regulations based on one's religious beliefs. Consequently, assuming that Mr. Hanson, in fact, had no social security number when he was hired by ISC, this regulation required that he apply for one within seven days thereafter. Again, it is undisputed that Mr. Hanson failed and refused to do so. [DEFENDANT'S BRIEF IN SUPPORT OF MOTION TO DISMISS - 11] (000022) ---------------------------------------------------------------------------- Not only was Mr. Hanson obligated to obtain a social security number, he was also required to furnish it to ISC. The Treasury Regulations mandate that an employee "shall, on the day on which he enters the employ of an employer for wages" provide his social security card or number to his employer. 29 C.F.R.  31-6011(b)-2(b) ("Duties of employee with respect to his account number"). If an employee is unable to furnish the social security number: the employee shall furnish to the employer a statement in writing, signed by the employee, setting forth the date of the statement, the employee's full name, present address, date and place of birth, father's full name, mother's full name before marriage, and the employee's sex, including a statement as to whether the employee has previously filed an application on Form SS-5 and, if so, the date and place of such filing. The information required by this subdivision shall be furnished on Form SS-5, if a copy of Form SS-5 is available. The furnishing of such a Form SS-5 or other statement by the employee to the employer does not relieve the employee of his obligation to make an application on Form SS-5 and file it with a district office of the Social Security Administration as required by paragraph (a) of this section.... 29 C.F.R.  31-6011(b)-2(b)(1)(iv). The EEOC does not allege in the Complaint that Mr. Hanson provided such a statement, and it is undisputed that he did not. Assuming Mr. Hanson had a social security number but failed to provide it on his date of hire, the Regulations command that he "shall promptly thereafter show the card to the employer." 29 C.F.R.  31-6011(b)-2(b)(2). An employee who does not have an account number card on his date of hire "shall, upon receipt of an account number card from the Social Security Administration, promptly show such card to the employer, if lie is still in the employ of that employer." Id. [DEFENDANT'S BRIEF IN SUPPORT OF MOTION TO DISMISS - 12] (000023) ---------------------------------------------------------------------------- Other regulations deal specifically with the duty of employers when an employee has not furnished his or her social security number. 7 When tax statements must be filed but an employee's social security number is unknown, the employer must request the employee to show him his social security card. 26 C.F.R.  31.6011(b)-2(c)(2). If the social security card is not furnished, the employer is obligated to attach to the reporting document a Form SS-5 or statement, signed by the employer, setting forth as fully and clearly as practicable the employee's full name, his present last known address, date and place of birth, father's full name, mother's full name before marriage, the employee's sex, and a statement as to whether an application for an account number has previously been filed by the employee and, if so, the date and place of such filing. The employer shall also insert in the Form SS-5 or statement an explanation of why it has not secured from the employee his or her social security number. 26 C.F.R.  31.6011(b)-2(c)(3)(iii). B. Penalties Under the Internal Revenue Code In ISC's view, the EEOC's focus on the severity or avoidability of legal penalties which flow from an employer's or employee's violation of law is misplaced. Nothing in Title VII compels an employer to weigh the possibility and severity of legal sanctions and then accommodate an employee's religious beliefs by violating the law when the penalties are de minumus but claim undue hardship when the sanctions are more severe. Regardless of the amount of the penalty or fine, if an employer must violate tax or immigration laws in order ----- 7 Regarding prospective employees, the Regulations suggest that employers should advise any prospective employee who does not have a social security number of his legal obligation to obtain one. 26 CFR  31.6011(b)- 2(c)(6). [DEFENDANT'S BRIEF IN SUPPORT OF MOTION TO DISMISS - 13] (000024) ---------------------------------------------------------------------------- to accommodate an employee's religious beliefs, undue hardship should exist as a matter of law. Conduct should be judged by its legality, not by its punishment. The EEOC, however, takes the opposite view. Claiming that the penalty under the tax laws is affordable and possibly avoidable, the EEOC demands that the employer disregard these legal obligations and condone the unlawful activity in order to accommodate an employee's religious beliefs. (1) Section 6676 Penalties. At times relevant to this case, the Internal Revenue Code provided for penalties for failing to provide a social security number. Section 6676 of the Internal Revenue Code, entitled "Failure to supply identifying numbers," provided, in pertinent part, as follows: "(a) In general. If any person who is required by regulations prescribed under section 6109- (1) to include his TIN in any return, statement or other document, (2) to furnish his TIN to another person, 8 or (3) ... to include in any return, statement, or other document made with respect to another person the TIN of such other person, fails to comply with such requirement at the time prescribed by such regulations, such person shall, unless it is shown that such failure is due to reasonable cause and not to willful neglect, pay a penalty for $5 for each such failure described in paragraph (1) and $50 for each such failure described in paragraph (2) or (3), except that the total amount imposed on such person for all such failures during any calendar Year shall not exceed $100,000." ----- 8 Under the Treasury Regulations, Mr. Hanson could avoid these penalties by establishing to the satisfaction of the district director or the director of the regional service center that his failure to provide his social security number to ISC was due to reasonable cause. 26 C.F.R  301.6676- 1(c). ISC has been unable to locate any decision which could support a claim that reasonable cause exists based solely upon one's religious beliefs. [DEFENDANT'S BRIEF IN SUPPORT OF MOTION TO DISMISS - 14] (000025) ---------------------------------------------------------------------------- 26 U.S.C.  6676. 9 See also Treas. Reg.  301.6676-1 ("Penalty for failure to supply identifying number"). (2) Section 6723 Penalties. At the relevant time periods, the penalties provided under section 6676 were supplemented by penalties under section 6723 of the Internal Revenue Code. 26 U.S.C.  6723. Section 6723 imposes penalties for returns and statements for the failure to include a social security number on documents filed with the IRS, including Mr. Hanson's W-2 Form. The penalty is generally $5.00 per statement. 10 In the case of intentional disregard of the legal obligation to obtain and utilize an employee's social security number, the penalties are enhanced. If the failure to include the social security number is due to intentional disregard, then the penalty for each failure to comply with the correct information reporting requirement is $100.00 for each failure. In ----- 9 Section 6676 of the Internal Revenue Code was repealed effective December 19, 1989 by section 771l(b)(1) of the Omnibus Budget Restoration Act ("OBRA") (Public Law 101-239). 10  6723. Failure to include correct information. (a) General rule. If (1) any person files an information return or furnishes a payee statement, and (2) such person does not include all of the information required to be shown on such return or statement or includes incorrect information, such person shall pay $5 for each return or statement ... but the total amount imposed ... during any calendar year shall not exceed $20,000. [DEFENDANT'S BRIEF IN SUPPORT OF MOTION TO DISMISS - 15] (000026) ---------------------------------------------------------------------------- addition, the $20,000 penalty limitation of Section 6723(a) does not apply. 28 U.S.C.  6723(b). 11 The penalty provided in Section 6723 may be waived if it is established to the IRS that the failure to include the social security number was due to reasonable cause and not to willful neglect. Reasonable cause may be established by submitting a written statement to the IRS setting forth all the facts alleged as constituting reasonable cause. The statement must be signed and contain a declaration that it is made under penalty of perjury. See Former IRC  6724(a); Treas.Reg.  301.6723-1A(d). One's religious beliefs have not been found to constitute reasonable cause. In an effort to establish reasonable cause, ISC would have had to submit a written statement to the IRS that was signed, contained a penalty of perjury declaration and set forth all the facts in support of the reasonable cause position. Code  6724(c)(1). At the time Mr. Hanson's employment was terminated, the regulations to  6724 of the Code did not contain a definition of reasonable cause and no case law or administrative ruling had been issued regarding the reasonable cause exception to a penalty for failure to include correct information. Accordingly, even if ISC had prepared and submitted a written statement explaining its failure to include a social security number on Mr. Hanson's W-2, it still might not have avoided liability for failure to comply with  6724. ----- 11 The penalties provided in section 6723 are coordinated with the penalties of section 6676. No penalty will be imposed under subsection 6723 if a penalty has been imposed under section 6676 (relating to failure to supply identifying number) with respect to the same return or statement). 26 U.S.C.  6723(c). [DEFENDANT'S BRIEF IN SUPPORT OF MOTION TO DISMISS - 16] (000027) ---------------------------------------------------------------------------- If the IRS determined that ISC did not establish reasonable cause and assessed the penalty for failure to include correct information, ISC would have been required to appeal the denial of abatement to the Collection Conferee, who is responsible for hearing appeals of penalty determinations by taxpayers. The Collection Conferee would have determined whether the penalty should have been abated within 30 days, scheduling a conference with ISC if necessary. If the Collection Conferee denied the abatement, then ISC would have had to pay the penalty and would have had two years to file a refund suit in the United States District Court. Rev. Proc. 78-1, 1978-01 C.B. 550. By willfully failing to include Hanson's identifying number in the applicable information returns ISC also would have been exposed to certain criminal penalties under the Code. Any person required to keep any record or supply any information who willfully fails to keep such record or supply such information is guilty of a misdemeanor and, upon conviction, may be fined up to $25,000 and may be imprisoned up to one year, or both and also is responsible for the costs of prosecution. Code  7203. Upon the Service's discovery of ISC's violation of section 7203 of the Code, its Criminal Investigation Division (the "CID") could investigate the matter and determine whether prosecution should be sought. If the Service recommended prosecution after the investigation of the CID, the Tax Division of the Department of Justice and the United States Attorney could pursue an indictment before the grand Jury. In light of the foregoing, under section 6676, Mr. Hanson is subject to a penalty of $50.00 for each instance that he fails to furnish his social security number to ISC or any other employer. Similarly under section 6676, ISC could also be subject to a $50.00 penalty for each document it submitted to the Internal Revenue Service on Mr.Hanson's behalf [DEFENDANT'S BRIEF IN SUPPORT OF MOTION TO DISMISS - 17] (000028) ---------------------------------------------------------------------------- which did not include his social security number. Alternatively, both Mr. Hanson and ISC could be penalized under section 6723 of the Code. As Mr. Hanson disclaims any intent to provide ISC or any other employer with his social security number and assuming Hanson remained employed despite his internal disregard of his obligations to obtain and provide his employer with his social security number, both Mr. Hanson and his employer could be subject to the higher penalties ($100.00 per document) under section 6723. 12 C. 1402(g) Exemption There is only one exemption from payment of social security taxes, the so-called "Amish Provision" because only members of the Amish or Mennonite congregations may qualify for the exclusion. Under section 1402, individuals with conscientious objections to social security insurance because of their adherence to the established teachings of a religious sect of which they are members can apply for exemption from the self-employment tax. Internal Revenue Code  1402(g)(1). An individual who wishes to obtain a tax exemption on religious grounds must file an application for exemption and waiver of benefits with the IRS. Before the exemption is granted, the applicant is required to waive all benefits and payments under the Social Security Act. IRC  1402(g)(1)(B). Again, it is important to note that the exemption provided by 1402(g) is available only to self- employed individuals and does not apply to employers or employees. United States v. Lee, 455 U.S. ----- 12 Intentional Disregard is treated as occurring when the person who files the return knowingly or willfully fails to include correct information when the return is filed. Facts to be considered for this purpose include (a) whether there is a pattern of repeatedly failing to include correct information; (b) whether there is a failure to timely correct errors after a written request; and (c) whether the person could reasonably be expected to discover the error and if so, whether timely correction was made. See Former IRC  6723(b); Treas. Reg. 301.6723-1A (e)(1). Such a pattern of a knowing and willful failure to obtain and provide a social security number exists under the facts of this case. [DEFENDANT'S BRIEF IN SUPPORT OF MOTION TO DISMISS - 18] (000029) ---------------------------------------------------------------------------- 252, 256 (1982). Mr. Hanson was an employee of ISC, and consequently, he was not exempt under the express provisions of  1402(g). D. Obligations Imposed by the Immigration Reform and Control Act of 1986. In addition to forcing ISC to violate Internal Revenue Code provisions, Mr. Hanson's failure to furnish ISC with a social security number also violated the Immigration Reform and Control Act of 1986 ("IRCA"), 8 U.S.C. 1324 (Supp. 1991). The purpose of IRCA was to require employers to hire only United States citizens and aliens lawfully authorized to work in the United States. The regulations interpreting IRCA require an entity that hires an individual for employment to ensure that the individual properly completes section 1 of the Employment Information and Verification Form (I-9) at the time of hiring. 8 C.F.R.  27a.2(b)(i). Accordingly, completion of the I-9 form is not an ISC employment requirement, it is federal law. In section 1 of the I-9 Form provided by the Immigration and Naturalization Services ("INS"), there is a block for employees to place their social security number. (See I-9 Form published by the Immigration and Naturalization Services, attached as Exhibit "A"). The instructions for completing the I-9 Form, furnished by the INS at the time Mr. Hanson was employed at ISC, state: Section 1. Employee/Preparer's instructions for completing this form. Instructions for the employee. All employees, upon being hired, must complete Section 1 of this Form. Any person hired after November 6, 1986 must compete this Form. (For the purpose of completion of this form the term "hired" applies to those employed, recruited or referred for a fee.) [DEFENDANT'S BRIEF IN SUPPORT OF MOTION TO DISMISS - 19] (000030) ---------------------------------------------------------------------------- All employees must print or type their complete name, address, date of birth, and Social Security Number. The block which correctly indicates the employee's immigration status must be checked. If the second block is checked, the employee's Alien Registration Number must be provided. If the third block is checked, the employee's Alien Registration Number or Admission Number must be provided, as well as the date of expiration of that status, if it expires. All employees must sign and date the form. Instructions on completing Employment Eligibility Verification, attached as Exhibit "A". (emphasis added). Given the clear instructions provided by the INS about completing the I-9 Form, an employee must fill in the box labeled social security number with his respective social security number. In the instant case, it is undisputed that Mr. Hanson did not fill in the box labeled social security number on his I-9 Form. Mr. Hanson's failure to complete section 1 of his I-9 Form makes his form incomplete, and ISC is liable for failing to ensure proper completion of the form. Mester Mfg. Co. v. I.N.S., 879 F.2d 561 (9th Cir. 1989)(it is the employer, not the employee, who is liable for any defects in the I-9 Form). Because Mr. Hanson failed to complete his I-9 Form, ISC became subject to a civil penalty in an amount not less than $100.00 and not more than $1,000.00. 8 C.F.R.  274a.10(b)(2). There is no exception, under the regulations discussing penalties for violating IRCA, that would permit ISC to escape liability for having an incomplete form. Given the important public policy behind the enactment of IRCA, the statute requires full compliance to avoid liability. In the instance case, plaintiff cannot assert even the first element of a religious discrimination claim because completion of the I-9 form, which requires a social security number, is a legal obligation, rather than an ISC employment requirement. ISC had no [DEFENDANT'S BRIEF IN SUPPORT OF MOTION TO DISMISS - 20] (000031) ---------------------------------------------------------------------------- option but to require Mr. Hanson to complete an I-9 form, and the Form required him to fill in his social security number. Put simply, ISC cannot be liable for religious discrimination, if its only discriminatory action -- requiring Mr. Hanson to provide a social security number to complete his I-9 form -- was required by federal law. III. CONCLUSION The government (not ISC) may justify a limitation on religious liberty by showing that it is essential to accomplish an overriding government interest. United States v. Lee, 455 U.S. 252, 257-58 (1982); Gillette v. United States, 401 U.S. 437 (1971); Sherbert v. Verner, 374 U.S. 398 (1963). In the instant case, the requirement that Mr. Hanson provide a social security number to ISC, is a requirement of IRC and IRCA -- not an employment rule of the Company. In balancing Mr. Hanson's religious beliefs against the government interest in compliance with both IRCA and IRC, Mr. Hanson's individual interest must yield. In BraunfeId v. Brown, 366 U.S. 599, 606 (1961), the Supreme Court noted that there is a point at which accommodation of religious beliefs would "radically restrict the operating latitude of the legislature." Tolerating Mr. Hanson's refusal to obtain and provide a social security number surpasses that point. There is undisputedly a public interest in preserving integrity of the tax system and therefore employers are required to provide complete information on employees' withholding and wages. Likewise there is a strong public interest in promoting employment of only United State citizens and authorized aliens and thus, employers are required to comply with all their obligations under IRCA. In the face of strong policy behind both these statutes, Mr. Hanson's religious belief's must yield to the public interest, and ISC should not be liable for requiring him to comply with the law. [DEFENDANT'S BRIEF IN SUPPORT OF MOTION TO DISMISS - 21] (000032) ---------------------------------------------------------------------------- The Supreme Court has recognized that a statuary requirement that applicants provide a social security number is wholly neutral in religious terms and uniformly applicable. Bowman v. Roy, 476 U.S. 693, 703 (1986). In Bowman, the Supreme Court upheld a federal statutory requirement that participants in federal aid programs provide their social security numbers to the agencies administering the programs. The Boman case involved parents who applied for food stamps but refused to provide a social security number for their two year old daughter because of their sincere religious conviction that the government's widespread use of a unique numerical identifier for their daughter would deprive her of spiritual power. In upholding the statuary requirement that applicants for government aid provide a social security number, the Court recognized that the social security number requirement promotes a legitimate and important public interest and that the use of the number is a reasonable means of promoting this goal. 476 U.S. at 710. The Court also recognized that given the diversity of beliefs in our pluralistic society and the necessity of providing government benefits with sufficient operating latitude, some incidental neutral restraints on the free exercise of religion are inescapable. 13 Id. Because Mr. Hanson has chose to enter into a commercial activity, employment, as a matter of choice, the limits he is able to accept on his own conduct as a matter of faith are not to be superimposed on the statutory schemes which are binding on others in that activity. ----- 13 In the instant case, Mr. Hanson is legally obligated to make payment of social security taxes because he does not fall within the one recognized exception to payment of these taxes. The only recognized exemption to payment of social security taxes is provided for in 26 U.S.C.  1402(g). The exemption provided by  1402(g) is available only to self-employed individuals and does not apply to employers or employees. Consequently, because Mr. Hanson is an employee, he does not fall within the express provisions of  1402(g). [DEFENDANT'S BRIEF IN SUPPORT OF MOTION TO DISMISS - 22] (000033) ---------------------------------------------------------------------------- In summary the EEOC has failed to state a claim for religious discrimination under Title VII. The EEOC failed to allege that Mr. Hanson had a "bona fide" or "sincerely held" religious belief. While admittedly this pleading defect can be cured by amendment, the remaining defects raised in this motion cannot. The EEOC has not alleged in the Complaint, as it is required to do, the remaining elements of a claim for religious discrimination under Title VII. The EEOC has neither alleged that Mr. Hanson's bona fide religious belief conflicted with an ISC employment policy or rule nor that Mr. Hanson was terminated as a result of the conflict between the employer's rules and the employee's bona fide religious belief. This defect cannot be cured by amendment and is fatal to the EEOC's claim of religious discrimination. This unprecedented case differs from other religious discrimination cases under Title VII because the requirement at issue is not an employment rule of ISC but rather a requirement of federal law. The requirement that an employee provide the Company with a social security number arises from its legal obligation to include an employee's social security number on the W-2 form (among others) filed with the IRS and the I-9 Form as required by IRCA. The EEOC's novel argument that Mr. Hanson's religious belief conflicted with the obligations imposed by federal law and that his employment was terminated as a result of the conflict between the requirements of federal law and the employee's religious beliefs does not state a claim for relief under Title VII. There is no legal authority that such allegations state a claim for religious discrimination under Title VII. On the contrary, the cases interpreting Title VII uniformly require that the conflict arise from the employer's employment rules and regulations. [DEFENDANT'S BRIEF IN SUPPORT OF MOTION TO DISMISS - 23] (000034) ---------------------------------------------------------------------------- There is likewise, no supporting legal authority under Title VII that supports the argument that an employer is liable for religious discrimination because the employer terminates an employee who refuses to comply with federal law. To require ISC to participate in and condone Mr. Hanson's violations of law as an accommodation to his religious beliefs constitutes "undue hardship" as a matter of law and implicates constitutional concerns. The Supreme Court has previously held in TWA v. Hardison that an employer was not required by Title VII to violate a seniority system in a collective bargaining agreement. The argument is more compelling when the employer must violate Federal Law. 14 For the forgoing reasons, ISC respectfully request the Court to dismiss, with prejudice, the EEOC's Compliant filed in this action pursuant to Fed.R.Civ.P. 12(b)(6). Respectfully submitted, GARDERE & WYNNE A Registered Limited Liability Partnership 1601 Elm Street, Suite 3000 Tnanksgiving Tower Dallas, Texas 75201 Telephone: (214) 999-3000 Telecopier: (214) 999-4270 By: [SIGNATURE] Dan Hartsfield State Bar No. 09170800 T. Michele Baird State Bar No. 01561600 ----- 14 "Section 701(j) does not require that in accommodating an employee's religious beliefs that an employer override an established seniority system, nor does it require an employer to take steps that go beyond those that a reasonable person would take. Turpen v. Missouri, Kansas, Texas Railroad Co., 736 F.2d 1022, 1028 (5th Cir. 1984). Defendant submits that, as a matter of law, violating federal law goes beyond the steps that a reasonable person would take. [DEFENDANT'S BRIEF IN SUPPORT OF MOTION TO DISMISS - 24] (000035) ---------------------------------------------------------------------------- CERTIFICATE OF SERVICE This certifies that on the 9th day of March, 1992, a true and correct copy of the foregoing Brief in Support of Defendant's Brief in Support of its Motion to Dismiss was served by certified mail, return receipt requested upon the following: [NOTE: "BRIEF IN SUPPORT OF BRIEF" IS AN OBVIOUS TYPO ON THE PART OF WHOMEVER TYPED THIS CERTIFICATE OF SERVICE]. [KATHERINE E. BISSELL, ADDRESS] [SIGNATURE] T. Michele Baird [DEFENDANT'S BRIEF IN SUPPORT OF MOTION TO DISMISS - 25] (000036) ---------------------------------------------------------------------------- [EXHIBIT A -- "I.N.S. FORM I-9" -- OMITTED]. [DEFENDANT'S MOTION TO DISMISS -- EXHIBIT A] (000037) ---------------------------------------------------------------------------- [EXHIBIT A CONT. -- "I.N.S. FORM I-9 INSTRUCTIONS" -- OMITTED]. [DEFENDANT'S MOTION TO DISMISS -- EXHIBIT A] (000038) ---------------------------------------------------------------------------- [DEFENDANT'S PRE-PREPARED "ORDER GRANTING DEFENDANT'S MOTION TO DISMISS -- OMITTED AS NEVER SIGNED BY JUDGE]. ["UNSIGNED" ORDER GRANTING DEFENDANT'S MOTION TO DISMISS - 1] (000039) ---------------------------------------------------------------------------- UNITED STATES DISTRICT COURT FOR THE [COURT STAMP NORTHERN DISTRICT OF TEXAS "FILED APR 1 DALLAS DIVISION 1992"] EQUAL EMPLOYMENT OPPORTUNITY ) COMMISSION, ) ) CIVIL ACTION NO. Plaintiff, ) CA3-92-0169-T ) v. ) ) INFORMATION SYSTEMS CONSULTING ) A DIVISION OF DIVERSIFIED HUMAN ) RESOURCES GROUP, ) ) Defendant. ) -------------------------------------) PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION TO DISMISS Jeffery C. BANNON Regional Attorney Conn. Bar No. 301166 Kathrine E. BISSELL Supervisory Trial Attorney Texas State Bar No. 02356020 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Dallas District Office 8303 Elmbrook Drive, 2nd Floor Dallas, Texas 75247 (214) 767-7948 (FTS) 729-7948 [PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION TO DISMISS - 1] (000040) ---------------------------------------------------------------------------- [TABLE OF CONTENTS TO RESPONSE, PAGE ii -- OMITTED]. [PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION TO DISMISS - 2] (000041) ---------------------------------------------------------------------------- [TABLE OF AUTHORITIES TO RESPONSE, PAGE iii -- OMITTED]. [PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION TO DISMISS - 3] (000042) ---------------------------------------------------------------------------- UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION EQUAL EMPLOYMENT OPPORTUNITY ) COMMISSION, ) ) CIVIL ACTION NO. Plaintiff, ) CA3-92-0169-T ) v. ) ) INFORMATION SYSTEMS CONSULTING ) A DIVISION OF DIVERSIFIED HUMAN ) RESOURCES GROUP, ) ) Defendant. ) -------------------------------------) PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION TO DISMISS The Plaintiff, Equal Employment Opportunity Commission (hereinafter the "Commission" or "EEOC") , files this response to Defendant's Motion to Dismiss and Brief filed in support thereof. The EEOC alleged in its Complaint that defendant's failure to accommodate Bruce Hanson's religious beliefs violated Title VII of the Civil Rights Act of 1964. In its motion, the defendant contends that the Commission's complaint should be dismissed because the Commission failed to allege specific and detailed facts concerning Mr. Hanson's bona fide religious belief that prohibits him from obtaining a social security number. Further, the defendant contends that the Internal Revenue Service requires that an employee obtain a social security number and therefore Mr. Hanson's religious belief does not conflict with an employment requirement of the defendant. Finally, the defendant asserts that it could not accommodate Mr. Hanson's belief because it would be subject to penalties under the Internal Revenue Code and the Immigration Reform and Control Act of 1986. [PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION TO DISMISS - 4] (000043) ---------------------------------------------------------------------------- The Commission states that it is unnecessary under the Federal Rules of Civil Procedure to state detailed and specific facts regarding its claim of religious discrimination on behalf of Mr. Hanson in the Commission's complaint. Fed. R. Civ. P. 8. Mr. Hanson has a bona fide religious conviction which prohibits him from obtaining a social security number. Further, the defendant has admitted that it knew of Mr. Hanson's belief but made the decision to terminate Mr. Hanson solely because he refused to obtain a social security number. Finally, as explained more fully below, the defendant could have accommodated Mr. Hanson's religious conviction without suffering undue hardship. For these reasons the Commission requests that the Defendant's Motion to Dismiss be denied. I. FACTUAL AND PROCEDURAL BACKGROUND On August 16, 1989, Mr. Bruce Hanson filed a charge of discrimination with the EEOC against the defendant, Information Systems Consulting. In his charge of discrimination, Mr. Hanson alleged that he had been discharged from his employment because he did not have a social security number. Mr. Hanson alleged that he had been discriminated against because of his religion, Christian Fundamentalist, in violation of Title VII. (Copy of the Charge of Discrimination is attached as Exhibit 4). Mr. Hanson holds a sincere religious conviction that a social security number is the "mark of the beast" as set forth in the Holy Bible, Book of Revelations, and to obtain a social security number would be in [PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION TO DISMISS - 5] (000044) ---------------------------------------------------------------------------- direct contradiction to the teachings of the Bible. (Affidavit of Bruce Hanson, attached as Exhibit 1). In its statement of position provided to the EEOC, the defendant confirmed that Mr. Hanson had been discharged from his employment on August 14, 1989, because he failed to provide the defendant with a social security number. (A copy of the statement of position is attached as Exhibit 5). The statement of position included an affidavit signed by Mr. Tim Fitzpatrick. Mr. Fitzpatrick stated that he interviewed Mr. Hanson for a position of computer programmer on June 26, 1989. At the interview Mr. Hanson advised the defendant that he did not have a social security number for religious reasons. According to Mr. Fitzpatrick a decision was made to hire Mr. Hanson. However, on August 14, 1989, the defendant's accounting department indicated it had a problem with Mr. Hanson's exemption from providing a social security number. On August 15, 1989, Mr. Fitzpatrick advised Mr. Hanson that unless he provided a social security number to the defendant his employment would be terminated. Mr. Hanson confirmed that he would not obtain a social security number and he was discharged by Mr. Fitzpatrick. In its position statement the defendant claimed that it would be subjected to penalties by the IRS if it did not provide the IRS with a social security number for Mr. Hanson. The Commission investigated the charge of discrimination and issued its determination on May 2, 1990. In its letter of determination the Commission found reasonable cause to believe that the defendant violated Title VII by discharging Mr. Hanson because [PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION TO DISMISS - 6] (000045) ---------------------------------------------------------------------------- he would not obtain a social security number. The Commission determined that the defendant failed to accommodate Mr. Hanson's religious belief against obtaining a social security number. Specifically, the Commission determined that the applicable IRS rules and regulation provided that an employer need only request a social security number from an employee and sign an affidavit that the request had been made. Further IRS regulations provide for a waiver of penalties for reasonable cause. A copy of the letter of determination is attached as Exhibit 6. II. THE COMMISSION'S COMPLAINT IS SUFFICIENT UNDER RULE 8 OF THE FEDERAL RULES OF CIVIL PROCEDURE The defendant argues that the Commission's complaint should be dismissed because the Commission has failed to plead detailed facts to establish a claim of religious discrimination. The law is well established that a claimant is not required to set forth specific facts to support general allegations of discrimination. Conley v. Gibson, 355 U.S. 41, 47 (1957). Rule 8 of the Federal Rules of Civil Procedure requires only that the complaint contain "a short and plain statement of the claim that will give the defendant fair notice of the plaintiff's claim and the ground upon which it rests." Id. at 47. The Federal Rules of Civil Procedure allow such "notice" pleading because of the liberal opportunity for discovery and other pretrial procedures designed to define more narrowly the disputed issues and facts. Id. at 48. Further, a court may dismiss a claim pursuant to Rule 12(b)(6) only if it [PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION TO DISMISS - 7] (000046) ---------------------------------------------------------------------------- establishes "beyond doubt that the Plaintiff can prove no set of facts which would entitle him to relief." Id. at 46. The Commission has pled facts sufficient to give the defendant notice of the claim of religious discrimination under Title VII. Paragraphs seven (7) and eight (8) of the complaint put the defendant on notice that Plaintiff alleged that the defendant violated Title VII by discharging Mr. Hanson and refusing to accommodate his religious belief. If the defendant is unclear about the specific facts surrounding the discharge for religious beliefs more information could be obtained through using the discovery process or filing a motion for a more definite statement pursuant to Rule 12(e) of the Federal Rules of Civil Procedure. However, as is clear from the argument contained in the Defendant's motion and the fact that the defendant was involved in the administrative process with the EEOC prior to the filing of the litigation, the defendant is well aware of the facts surrounding the Commission's claim of religious discrimination. The Commission's complaint is sufficient to give the defendant notice of the claim and therefore Defendant's Motion to Dismiss should be denied. Ill. THE COMMISSION CAN ESTABLISH THAT DEFENDANT VIOLATED TITLE VII BY DISCHARGING MR. HANSON BECAUSE OF HIS RELIGIOUS BELIEF. In order to establish a claim of religious discrimination in employment, the Commission must show that 1) Mr. Hanson had a bona fide religious belief that conflicts with an employment requirement; 2) Mr. Hanson informed the employer of this belief; 3) [PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION TO DISMISS - 8] (000047) ---------------------------------------------------------------------------- Mr. Hanson was discharged for his failure to comply with the conflicting employment requirement. Once the Commission establishes the prima facie case, the burden shifts to the employer to show that it was unable to reasonably accommodate the employees' religious belief without undue hardship. Turpen v. Missouri-Kansas-Texas R. Co., 736 F.2d 1022 (5th Cir. 1984). A. Mr. Hanson has a bona fide religious belief that prohibits him from obtaining a social security number and he advised the defendant of his belief. As the Commission established during its investigative process, Mr. Hanson has a sincere religious conviction that a social security number represents the "mark of the beast" as set forth in the Book of Revelations of the Bible. Mr. Hanson believes that to obtain a social security number would be in direct contradiction to the teachings of the Bible. (Affidavit of Bruce Hanson attached as Exhibit 1). Also attached to this memorandum is the affidavit of Scott Brasher, who also attests to Mr. Hanson's religious belief. (Affidavit of Scott Brasher attached as Exhibit 2). The defendant has admitted in its statement of position to the Commission that Mr. Hanson was told by Mr. Fitzpatrick that in order to remain employed he had to obtain a social security number. (Defendant's statement of position to the EEOC, including affidavit of Mr. Fitzpatrick, attached as Exhibit 5). When Mr. Hanson indicated that he would refuse to comply with this requirement he was discharged by the defendant. There is also no dispute that Mr.Hanson notified the defendant of his religious conviction against [PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION TO DISMISS - 9] (000048) ---------------------------------------------------------------------------- obtaining a social security number. Mr. Fitzpatrick stated in his affidavit that Mr. Hanson discussed his religious conviction at the initial employment interview. B. Mr. Hanson's religious belief conflicted with defendant's employment requirement that he obtain a social security number to remain employed. The defendant argues that the requirement that Mr. Hanson obtain a social security number is not the defendant's employment requirement but a requirement of the Internal Revenue Service (IRS). However, the defendant, not the IRS, made the decision that Mr. Hanson's employment depended on his agreement to obtain a social security number. The IRS did not make the decision to terminate Mr. Hanson's employment because he did not have a social security number. The decision that Mr. Hanson must obtain a social security number to remain employed was made solely by the defendant. C. The defendant failed to reasonably accommodate Mr.Hanson's religious belief. As outlined above the Commission can establish a prima facie case of religious discrimination by the defendant against Mr. Hanson. The burden then shifts to the defendant to show that it was unable to reasonably accommodate Mr. Hanson's religious belief without undue hardship. Turpen v. Missouri-Kansas-Texas R. Co., 736 F.2d 1022 (5th Cir. 1984). The real dispute between the Commission and the defendant is the duty of the defendant to reasonably accommodate Mr. Hanson. The defendant does not dispute that it did not attempt to accommodate Mr. Hanson. Rather, the defendant contends that it could not accommodate Mr. Hanson without [PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION TO DISMISS - 10] (000049) ---------------------------------------------------------------------------- suffering penalties by the IRS and therefore it would suffer undue hardship. However, the applicable Internal Revenue Code provisions and IRS regulations do not support the defendant's contention. Indeed, the Internal Revenue Code and the regulations promulgated pursuant to the code do not contain an absolute requirement that an employer provide an employee social security number to the IRS. Internal Revenue Code Section 6109(a)(3) states: Any person required under the authority of this title to make a return, statement or other document with respect to another person, shall request from such other person, and shall include in any return statement, or document, such identifying number as may be prescribed for securing proper identification of such other person. 26 U.S.C.  6109(a)(3) (Supp. 1992). The IRS regulation interpreting Section 6109 provides: If he does not know the taxpayer identifying number of the other person, he shall request such number of the other person. A request should state that the identifying number is required to be furnished under the authority of law. When the person filing the return, statement, or other document does not know the number of the other person, and has complied with the request provision of this paragraph, he shall sign an affidavit on the transmittal document forwarding such returns, statements, or other documents to the Internal Revenue Service so stating. (emphasis added) Treas. Reg.  301.6109-1(c) (1991). The applicable IRS statute and regulation place a duty on the employer to request a taxpayer identifying number from the employee. If a document must be filed and the employer has been [PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION TO DISMISS - 11] (000050) ---------------------------------------------------------------------------- unable to obtain the number but has made the request then the employer need only include an affidavit stating that the request was made. In August 1989, Internal Revenue Code Section 6676, 26 U.S.C.  6676 (1989), set forth the penalties for failing to supply the IRS with identifying numbers as required by the code. This section states that a $50.00 penalty will be imposed for failure of a employer to provide an identifying number on any document filed with the IRS unless it is shown that the failure is due to reasonable cause and not willful neglect. The Treasury Regulation interpreting the statute states: Under Section 301.6109-1(c) a payor is required to request the identifying number of the payee. If after such a request has been made, the payee does not furnish the payor with his identifying number, the penalty will not be assessed against the payor. (emphasis added) Treas. Reg.  310.6676-1 (1989). Thus, based upon the IRS regulations in effect in August 1989, the defendant only had to request the identifying number from Mr. Hanson and then when the number was not provided, provide an affidavit stating that the number had been requested. The defendant could have accommodated Mr. Hanson by filing an affidavit with the IRS stating that a request for a social security number had been made. Once such an affidavit was filed no penalty could be assessed against the defendant. The defendant cannot argue that filing an affidavit would create undue hardship on its business. See Trans World Airlines v. Hardison, 432 U.S. 63 (1977) (employer [PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION TO DISMISS - 12] (000051) ---------------------------------------------------------------------------- must show that an accommodation would require the employer to incur greater than a de minimis cost or impose greater than a de minimis imposition to establish undue hardship). The Omnibus Budget Restoration Act, Public Law 101-239, Title, VII, Section 7711(b)(1), Dec. 19, 1989, 103 Stat. 2393, repealed Section 6676 of the Internal Revenue Code effective for statements or documents filed after December 31, 1989. Since December 31, 1989, Section 6723 of the Internal Revenue Code, 26 U.S.C.  6723 (Supp. 1992) has governed the failure to comply with information reporting requirements. Section 6723 states that a penalty of $50.00 shall be assessed for each failure to comply with a reporting requirement. However, Internal Revenue Code Section 6724, 26 U.S.C.  6724 (Supp. 1992), provides for a waiver of any penalties assessed under the code upon a showing of reasonable cause. Section 6724(a) provides: No penalty shall be imposed under this part with respect to any failure if it is shown that such failure is due to reasonable cause and not willful neglect. 26 U.S.C. 6724(a) (Supp. 1992). While no court has ruled that a religious conviction is reasonable cause, the focus in this case is on the action of the employer in determining whether any penalty would be assessed. Unless the employer willfully fails to obtain the taxpayer identification number any penalty should be waived. The key fact in determining whether the defendant violated Title VII, however, [PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION TO DISMISS - 13] (000052) ---------------------------------------------------------------------------- is that the defendant made no attempt to accommodate Mr. Hanson by seeking a waiver of any penalty for reasonable cause. The defendant's contention that it could be subjected to penalties under the Immigration Reform and Control Act of 1986, 8 U.S.C.  1324 (Supp. 1992), is also meritless. The Immigration Reform and Control Act of 1986 was enacted to make the employment of illegal aliens unlawful. 8 U.S.C. 1324a(a) (Supp. 1992). The Law requires a verification system under which an employer must attest, under penalty of perjury, that it has verified that each employee is not an unauthorized alien by examining the requisite document or documents, showing identity and employment authorization. 8 U.S.C. 1324a(b) (Supp. 1992). The law lists a number of documents which can be used to verify identity and employment authorization. A social security card is one document which evidences employment authorization, but it is not required. A birth certificate showing birth in the United States is another example of a document which evidences employment authorization. 8 U.S.C. 1324a(b)(1)(C) (Supp. 1992 ). The case cited by the defendant for the proposition that it would be violating the Immigration Reform and Control Act of 1986 for not including a social security number on Mr. Hanson's I-9 form, Mester Mfg. Co. v. INS, 879 F.2d 561 (9th Cir. 1989), involves an employer who continued to employ an individual after being advised by the INS that the individual was an unauthorized alien. The case does not support the defendant's contention that the Act requires it to furnish a social security number for Mr. Hanson. [PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION TO DISMISS - 14] (000053) ---------------------------------------------------------------------------- IV. CONCLUSION The Commission's complaint filed herein gave the defendant sufficient notice, pursuant to Rule 8 of the Federal Rules of Civil Procedure, of the EEOC's claim of religious discrimination under Title VII. The Commission can establish a prima facie case of religious discrimination under Title VII. Mr. Hanson has a bona fide religious belief that conflicted with the defendant's requirement that he provide the defendant with a social security number to remain employed. The defendant was aware of Mr. Hanson's religious belief and failed to reasonably accommodate his belief. The Commission has stated a claim upon which relief can be granted and the Defendant's Motion to Dismiss should be denied. Respectfully submitted, Jeffery C. BANNON Regional Attorney Connecticut State Bar No. 301166 [SIGNATURE] Kathrine E. BISSELL Supervisory Trial Attorney Texas Bar No. 02356020 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Dallas District Office 8303 Elmbrook Drive, 2nd Floor Dallas, Texas 75247 (214) 767-7948 [PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION TO DISMISS - 15] (000054) ---------------------------------------------------------------------------- CERTIFICATE OF SERVICE The undersigned hereby certifies that true copies of the foregoing Plaintiff's Response to Defendant's Motion to Dismiss was served on all counsel of record by U.S. Certified Mail, Return Receipt Requested, on the 1st day of April, 1992, to: [MICHELE BAIRD, ADDRESS] [SIGNATURE] Katherine E. Bissell [PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION TO DISMISS - 16] (000055) ---------------------------------------------------------------------------- UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION EQUAL EMPLOYMENT OPPORTUNITY ) COMMISSION, ) ) CIVIL ACTION NO. Plaintiff, ) CA3-92-0169-T ) v. ) ) INFORMATION SYSTEMS CONSULTING ) A DIVISION OF DIVERSIFIED HUMAN ) RESOURCES GROUP, ) ) Defendant. ) -------------------------------------) AFFIDAVIT OF BRUCE HANSON I, Bruce Hanson, declare under penalty of perjury the following: 1. I am over eighteen (18) years of age and a citizen of the United States of America. 2. I hold a sincere religious conviction that a social security number is "the mark of the beast" as set forth in the Holy Bible, Book of Revelations. 3. To obtain a social security number or any other type of identifying number would be in direct contradiction to the teachings of the Bible. 4. I have never had a social security number or other identifying number. I declare under penalty of perjury that the forgoing is true and correct. Executed on this the 30 day of March 1992. [SIGNATURE] Bruce Hanson [ STAMP "PLAINTIFF'S EXHIBIT 1"] [PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION TO DISMISS - 17] (000056) ---------------------------------------------------------------------------- UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION EQUAL EMPLOYMENT OPPORTUNITY ) COMMISSION, ) ) CIVIL ACTION NO. Plaintiff, ) CA3-92-0169-T ) v. ) ) INFORMATION SYSTEMS CONSULTING ) A DIVISION OF DIVERSIFIED HUMAN ) RESOURCES GROUP, ) ) Defendant. ) -------------------------------------) AFFIDAVIT OF SCOTT T. BRASHER I, Scott T. Brasher, state under penalty of perjury the following: 1. I am over the age of eighteen (18) and a citizen of the United States. 2. I have known Bruce Hanson since 1985. 3. I have discussed Bruce Hanson's religious convictions with him over the years. 4. I understand that Bruce Hanson is a Christian Fundamentalist and bases his beliefs and convictions, and how he leads his life on the Holy Bible. 5. One of Bruce Hanson's religious convictions is that he believes that a social security number is the "mark of the beast" as described in the 13th Chapter of Revelations. 6. During the time I have known Bruce Hanson he has held the [ STAMP "PLAINTIFF'S EXHIBIT 2"] [PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION TO DISMISS - 18] (000057) ---------------------------------------------------------------------------- religious conviction that obtaining a social security number would violate the teachings of Revelations. 7. A copy of a letter I provided to the EEOC in August 1989 is attached to this affidavit as Exhibit A. I declare under penalty of perjury tHat the foregoing is true and correct. Executed on this the 30th day of March, 1992. [SIGNATURE] Scott T. Brasher [PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION TO DISMISS - 19] (000058) ---------------------------------------------------------------------------- Equal Employment Opportunity Comission Dallas District Office 8303 Elmbrook ])rive Dallas, Texas 75247 Scott T. Brasher P. 0. Box 190813 Arlington, Texas 76019 30 August, 1989 RE: EEOC 310 89 2438 Gentlemen: I have known Bruce Hanson for four years, plus. From time to time over the years we have been acquainted (Bruce and I), religous beliefs and convictions have been discussed, stated, and argued about. My understanding from these conversations is that Bruce is a Christian Fundamentalist, and bases his beliefs and convictions, and makes decisions concerning how he leads his life, upon the Holy Bible. One of these convictions, that of his refusal to obtain and submit to the use of the Social Security Number, which he believes to be the "Mark of the Beast." I understand this is relevent to the above mentioned case. Bruce has stated at length, and detailed on numerous occasions, the elements of Biblical Prophesy (from the book of Revelation) which lead him to the conclusion that the 'Mark of the Beast" is indeed what a Social Security Number represents. During the time that I have known Bruce he has not violated the convictions he has professed; more specifically, in spite of the fact that employment would be much more easily gained by acquiring the "Mark of the Beast," it is not right or valid to his belief. Thank you for your consideration. Sincerely, [SIGNATURE] Scott T. Brasher EXHIBIT A [PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION TO DISMISS - 20] (000059) ---------------------------------------------------------------------------- UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION EQUAL EMPLOYMENT OPPORTUNITY ) COMMISSION, ) ) CIVIL ACTION NO. Plaintiff, ) CA3-92-0169-T ) v. ) ) INFORMATION SYSTEMS CONSULTING ) A DIVISION OF DIVERSIFIED HUMAN ) RESOURCES GROUP, ) ) Defendant. ) -------------------------------------) AFFIDAVIT OF BRIAN MCGOVERN I, Brian McGovern, declare under penalty of perjury the following: 1. This affidavit is made in support of the Commission's Response to the Defendant's Motion to Dismiss in the above-captioned litigation. 2. I am the Deputy Director of the Dallas District Office of the Equal Employment Opportunity Commission. 3. In such position, I a keeper of the records of investigatory files concerning charges of employment discrimination filed with the EEOC. 4. Such files are maintained in the ordinary course of the governments operation of investigation and enforcement of claims of employment discrimination. This includes the file of Bruce Hanson v. Information Systems Consulting, EEOC charge number 310 89 2438. 5. Attached as Exhibit 4 to the Plaintiff's Response to Defendant's Motion to Dismiss (hereinafter Plaintiff's Response) is [ STAMP "PLAINTIFF'S EXHIBIT 3"] [PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION TO DISMISS - 21] (000060) ---------------------------------------------------------------------------- a true and correct copy of the charge of discrimination filed by Mr. Hanson against Information Systems Consulting. The charge of discrimination was filled on August 16, 1989. 6. Attached as Exhibit 5 to the Plaintiff's Response is a true and correct copy of the statement of position filed with the EEOC by Information Systems Consulting in response to the charge of discrimination. 7. Attached as Exhibit 6 to the Plaintiff's Response is a true and correct copy of the Letter of Determination issued by the EEOC on the charge of discrimination filed by Mr. Hanson against Information Systems Consulting. The Letter of Determination was issued on May 2, 1990. I declare under penalty of perjury that the foregoing is true and correct. Executed on this the 1 day of April, 1992. [SIGNATURE] Brian McGovern [PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION TO DISMISS - 22] (000061) ---------------------------------------------------------------------------- [THIS IS A TEXAS COMMISSION ON HUMAN RIGHTS AND EEOC FORM -- CHARGE OF DISCRIMINATION FILED BY MR. HANSON AGAINST ISC -- WHAT PERTINENT INFORMATION THERE WAS IS PROVIDED BELOW]. EEOC 310 89 2438 [Mr. Hanson's name & address]. [ISC's name & address]. THE PARTICULARS ARE I. PERSONAL HARM: I was discharged. II. REASON FOR RESPONDENT'S ADVERSE ACTION: Tim Fitzgerald discharged me because I do not have a Social Security number. III. DISCRIMINATION STATEMENT: I believe I have been discriminated against because of my religion, Christian Fundamentalist, in violation of Tite VII of the Civil Rights Act of 1964, as amended. [ STAMP "PLAINTIFF'S EXHIBIT 4"] 8/16/89 [SIGNATURE] BRUCE HANSON [PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION TO DISMISS - 23] (000062) ---------------------------------------------------------------------------- GARDERE & WYNNE ATTORNEYS AND COUNSELORS 2600 THANKSGIVING TOWER DALLAS, TEXAS 75201 214-979-4500 (214) 999-4205 November 8, 1989 Ms. Euniece Davis Investigation Equal Employment Opportunity Commission 8303 Elmbrook Drive Dallas, Texas 75247 Re: Charge No. 310 89 2438 Bruce Hansen v. Information Systems Consulting Dear Ms. Davis: On behalf of Information Systems Consulting ("Respondent"), I hereby submit Respondent's Statement of Position in the above referenced charge of Employment Discrimination. Respondent reserves the right to modify, supplement, or amend its position should additional information come to its attention. It is Respondent's position that its decision to discharge Mr. Hansen was based on legitimate, non-discriminatory reasons and that Respondent has not violated Title VII of the Civil Rights Act of 1964. Mr. Hansen was discharged solely because his refusal to obtain either a social security number or a tax identification number would subject Respondent to exposure to various civil and criminal penalties under the Internal Revenue Code. It is because of this factor and not because of Mr. Hansen's religion that he was discharged on August 14, 1989. FACTUAL BACKGROUND Respondent is a division of Diversified Human Resources Group, Inc., a full service personnel placement agency. Respondent specializes in placing employees in technical and computer related positions. Claimant was interviewed for a position as a computer programmer on June 26, 1989, by Tim Fitzpatrick, an Account Manager for Respondent. (Attached as Exhibit "A" is an Affidavit from Mr. Fitzpatrick). During that interview Mr. Hansen disclosed that he did not have a social security number and elaborated upon his religious reasons for his failure to obtain a number. At that time Mr. Hansen represented to Respondent, and the management of Respondent believed, that Respondent would not be subject to any [ STAMP "PLAINTIFF'S EXHIBIT 5"] [PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION TO DISMISS - 24] (000063) ---------------------------------------------------------------------------- GARDERE & WYNNE Ms. Euniece Davis November 8, 198 Page 2 civil or criminal penalties for the failure to obtain a social security number for Mr. Hansen. (Exhibit "A"). Therefore, on August 3, 1989, Respondent hired Mr. Hansen when Respondent's management was fully cognizant of Mr. Hansen's religious beliefs. At this time Mr. Fitzpatrick specifically explained to Mr. Hansen that he was being hired on the condition that Respondent would not suffer any legal penalties or violate the Internal Revenue Code for failing to obtain a social security number for Mr. Hansen. On approximately August 14, 1989, Respondent's accounting department determined that its failure to obtain a social security number for Mr. Hansen could subject Respondent to various penalties under the Internal Revenue Code and its Regulations. After Respondent's management reviewed this problem, it was communicated to Mr. Hansen. Respondent explained to Mr. Hansen that if he could not provide Respondent with a social security number he would be terminated. When Mr. Hansen refused to do so, he was terminated. (Exhibit "A"). RESPONDENT ATTEMPTED TO ACCOMMODATE THE RELIGION OF CHARGING PARTY IN SEVERAL WAYS: Respondent made a good faith effort to accommodate the religion of Mr. Hansen. Respondent was willing to employ Mr. Hansen without a social security number if it could do so without violating the Internal Revenue Code or its Regulations. After Respondent discovered that it would be exposed to possible civil and criminal penalties for failing to obtain a social security number for Mr. Hansen, Respondent discovered that it could comply with the Internal Revenue Code if Mr. Hansen would be willing to obtain a tax identification number in lieu of a social security number. This information was communicated to the E.E.O.C. in an effort to resolve this charge. However, Mr. Hansen refused to obtain a tax identification number. Thus, due to Mr. Hansen's refusal to obtain either a social security number or a tax identification number, Respondent could not employ Mr. Hansen without the undue hardship of suffering violations and penalties under the Internal Revenue Code and its Regulations. RESPONDENT WOULD BE SUBJECT TO VARIOUS PENALTIES FOR FAILING TO OBTAIN A SOCIAL SECURITY NUMBER OR A TAX IDENTIFICATION NUMBER FOR CHARGING PARTY: Respondent would be exposed to a variety of penalties under both the Internal Revenue Code and its Regulations for failing to [PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION TO DISMISS - 25] (000064) ---------------------------------------------------------------------------- GARDERE & WYNNE Ms. Euniece Davis November 8, 198 Page 3 obtain either a social security number or a tax identification number for Mr. Hansen. First, there is a penalty of $50.00 imposed for the failure to include an employee's tax identification number on any return, statement or other document made with respect to that person. I.R.C.  6676 (a). The total penalty under this rule imposed on an employer for the calendar year can be as much as $100,000. Id. Since Respondent must furnish many documents throughout the year to the Internal Revenue service regarding its employees, including W-2's, W-4's, Unemployment Tax Information, etc., this penalty could be substantial. Respondent could also be subjected to criminal penalties for the willful failure to keep proper records for failing to obtain a social security number or tax identification number for Mr. Hansen. This crime is considered a misdemeanor and a corporation committing such a crime can be fined up to $100,000 or sentenced to one year imprisonment. United States v. Rosenfield, 469 F.2d 598, (3rd Cir. 1972) cert. denied, 411 U.S. 932, 1973. The federal courts have consistently supported the Internal Revenue Service's position that the public interest in maintaining a sound tax system is of such a compelling state interest that religious beliefs in conflict with the payment of taxes are subordinate to that interest. U.S. v. Lee, 455 U.S. 252 (1982). Cook v. Spillman,, 806 F.2d 948 (9th Cir. 1986). In fact, the United States Supreme Court has stated that "when followers of a particular sect enter into commercial activity as a matter of choice, limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory scheme binding on others in that activity, ... since tax imposed on employers to support the social security system must be uniformly applicable to all except as congress explicitly provides otherwise ..." United States v. Lee, 455 U.S. 252 (1982). CONCLUSION Respondent denies that it discriminated against Charging Party on the basis of his religion and asserts that its discharge of Mr. Hansen was based at all times on legitimate business reasons. Mr. Hansen was discharged because under the Internal Revenue Code and its Regulations, and under United States Supreme Court precedent, Respondent would be subjected to exposure to substantial civil and criminal penalties for the failure to obtain a social security number or a tax identification number for Mr. Hansen. Although [PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION TO DISMISS - 26] (000065) ---------------------------------------------------------------------------- GARDERE & WYNNE Ms. Euniece Davis November 8, 198 Page 4 Respondent attempted to accommodate Mr. Hansen's religious objections to obtaining a social security number by suggesting that he obtain a tax identification number, he refused to do so. The legal penalties to which Respondent would be exposed for failure to obtain either of these numbers from Mr. Hansen would constitute an undue burden on Respondent. For the foregoing reasons Respondent requests that the Commission issue a decision finding no reasonable cause to believe that Respondent has violated Title VII of the Civil Rights Act of 1964 and dismiss Mr. Hansen's charge. Please direct further inquiries regarding this matter to me. Sincerely, [SIGNATURE] Robert E. Luxen REL:mcd: Enclosure [PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION TO DISMISS - 27] (000066) ---------------------------------------------------------------------------- THE STATE OF TEXAS   COUNTY OF DALAS  AFFIDAVIT OF TIM FITZPATRICK Before me, the undersigned authority, personally appeard TIM FITZPATRICK, who being by me duly sworn, deposed as follows: My name is Tim Fitzpatrick, I am over eighteen years of age. I have reviewed the charge of discrimination filed by Bruce Hanson, Charge No. 310-89-2438, and I wish to make the following statement. I have been emloyed in the position of Account manager for Engeering Services by Information Systems Consulting ("ISC"), a division of Diversified Human Resources Group since January 1989. My duties as an Account Manager include hiring employees to work for ISC and assigning them to different job sites. On June 26th, 1989, I interviewd Bruce Hanson for a position as a computer programmer. During the interview, Mr. Hanson explained that he did not have a Social Security number. He explained that he was exempt from obtaining a Social Security number for religous reasons. At the time, he claimed that he was in posession of a letter from the Social Security Administration, cancelled paychecks from previous employers, and copies of sections of the Internal Revenue Code, all of which he claimed established that he did not need a Social Security number for employment. Mr. Hanson stated that if ISC hired him, the company would neither suffer any penalties from the Social Security Administration or the Internal Revenue Service, nor would it break any laws by not having a Social Security number for Mr. Hanson. Mr. Hanson also stated that he would provide further documentaion if necessary to prove AFFIDAVIT OF TIM FITZPATRICK - Page 1 [PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION TO DISMISS - 28] (000067) ---------------------------------------------------------------------------- his position. Having never before faced a situation where a potential employee did not have a Social Security number, I explained to Mr. Hanson that I would have to check with my superiors on that issue and communicated to him that the company could not hire him if it would break any laws in doing so. After the interview I presented Mr. Hanson's resume to my superiors, Mark McFayden, the General Manager of ISC, and Charlie Fox, the Vice President of ISC. I explained to both of them that Mr. Hanson had stated that he was exempt from obtaining a Social Security number for religious Reasons. We also discussed the documents which Mr. hanson claimed supported this position. Both the managers agreed to hire Mr. Hanson on the condition that we could do so without suffering any legal penalties or violating the Internal Revenue Service Regulations for not requiring Mr. Hanson to have a Social Security number. On Thursday, August 3, 1989 I called Mr. Hanson and informed him that ISC was interested in hiring him and asked him to come into the office and speak with me. Later that day, Mr. Hanson met with me. At this meeting, Mr. Hanson brought the documentation he referred to in his June 26 interview, including the letter from the Social Security Administration, copies of the Internal Revenue Code, and paycheck stubs. Again, Mr. Hanson represented that ISC would not violate any laws in hiring him without a Social Security number. The documentation and the statements led me to believe that ISC could hire Mr. Hanson without a Social Security number and not suffer any legal penalties. Mr. Hanson then signed an AFFIDAVIT OF TIM FITZPATRICK - Page 2 [PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION TO DISMISS - 29] (000068) ---------------------------------------------------------------------------- employment contract, filled out various forms, and agreed to begin work on Monday, August 7, 1989. All of Mr. Hanson's documentation relating to the exemption was sent to the company Accounting Department. On approximately August 14, 1989, the Accounting Department discovered a problem with Mr. Hanson's exemption and communicated that problem to Mark McFayden, who then related it to me. After discussions with the IRS, the company discovered that if Mr. Hanson did not provide us with a Social Security number, the company would be in violation of the Internal Revenue Regulations and subject to various penalties. Upper management reviewed the problem and made the decision to terminate Mr. Hanson if he could not provide ISC with a Social Security number. This decision was based on a strict company policy to avoid violating the Internal Revenue Regulations and any other laws. On Tuesday, August 15, 1989, I called Mr. Hanson and asked him to come in for a meeting. During the meeting I explained to Mr. Hanson that the Internal Revenue Service considered the Company to be in violation of the Internal Revenue Code for not obtaining a Social Security number. I also explained that it was against company policy to violate the law and that unless Mr. Hanson provided us with a Social Security number, he would be terminated. I explained to him that we respected his beliefs, but that the company could not violate the law. Mr. Hanson became very frustrated at this point and said that if he was terminated, he would sue ISC. He also stated that even if ISC were in violation of the Internal Revenue Code, the fine would only be $50. Mr. AFFIDAVIT OF TIM FITZPATRICK - Page 3 [PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION TO DISMISS - 30] (000069) ---------------------------------------------------------------------------- Hanson confirmed that he would not obtain a Social Security number so I discharged him. He asked to speak with Mr. McFayden, who then came into the office and reiterated the company decision. Later that week I received a letter from Mr. Hanson asking me to reinstate him. In Mr. Hanson's charge he alleges that ISC discriminated against him on the basis of his religion. This statement is untrue. The company hired Mr. Hanson when it was fully aware of his religious beliefs. Mr. Hanson was terminated solely because his failure to obtain a Social Security number placed the Company in a position where it would violate the Internal Revenue Code and would be subject to penalties if Mr. Hanson was employed. Mr. Hanson was informed that the company could not employ him without a Social Security number if such an action would break the law. Obviously, Mr. Hanson believed that the Internal Revenue Service would penalize the company with a $50 fine in view of his statement on August 15. However, Mr. Hanson neglected to tell me this before he was hired and in fact provided documentation which led me to believe otherwise. The foregoing is true and correct to the best of my knowledge. [SIGNATURE] Tim Fitzpatrick SWORN TO AND SUBSCRIBED before me on the 29th day of September, 1989. [SIGNATURE OF DARLENE CHUTE] Notary Public, State of Texas Print or Type Name My Commission Expires: [NOTARY STAMP "CHARLENE CHUTE COMMISSION EXPIRES JULY 12, 1993"] AFFIDAVIT OF TIM FITZPATRICK - Page 4 [PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION TO DISMISS - 31] (000070) ---------------------------------------------------------------------------- EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AREA CODE 214 DALLAS DISTRICT OFFICE COM: 214-767-7015 8303 ELMBROOK DRIVE FTS 729-7015 DALLAS, TEXAS 75247 CHARGE NUMBER: 310 89 2438 Mr. Bruce Hanson CHARGING PARTY 33 Wildwood Drive Flower Mound, Texas 75028 Information Systems Consulting RESPONDENT (Division of Diversified Human Resources Group) 5001 Spring Valley Road Dallas, Texas 75244-3910 DETERMINATION Under the authority vested in me by the Commission's Procedural Regulations, I issue, on behalf of the Commission, the following determination as to the merits of the subject charge. Respondent is an employer within the meaning of Title VII and the timeliness and all other jurisdictional requirements for coverage have been met. Charging Party alleges that the Respondent discharged him and refused to accommodate his religion, Christian Fundamentalist, in violation of Title VII of the Civil Rights Act of 1964, as amended. The Charging Party was hired for a Computer Programmer position. During his interview for the position, he informed Respondent's official that he had no Social Security number and that his religious beliefs prevented him from obtaining or using one. He submitted documentation concerning the "exemption" from the use of a Social Security number. After the Charging Party began work the Respondent allegedly had discussions with the Internal Revenue Service and determined that unless the Charging Party had a Social Security number, the Respondent would be in violation of Internal Revenue Regulations and subject to various penalties. The Charging Party was notified that unless he obtained a Social Security number, he would be discharged. The Charging Party refused and was discharged as a result. The Respondent alleges that it was unable to accommodate the Charging Party's religious beliefs without undue hardship. It alleges that pursuant to the Internal Revenue Code Section 6676, it will be subject to a $50.00 fine each time it provides documents to the Internal Revenue Service that omit the Charging Party's [ STAMP "PLAINTIFF'S EXHIBIT 6"] [PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION TO DISMISS - 32] (000071) ---------------------------------------------------------------------------- LETTER OF DETERMINATION EEOC CHARGE NUMBER 310 89 2438 PAGE NUMBER 2 Social Security number. Its only attempt at accommodation occurred two months after the Charging Party's discharge. The Respondent at that time offered to accept a Taxpayer Identification number in lieu of a Social Security number. This was unacceptable to the Charging Party, as his beliefs do not allow him to obtain such a number. The evidence shows that the Respondent's position is unsupported by the law as it existed at the time of the Charging Party's discharge, and as it exists now, following the passage of the Omnibus Budget Restoration Act (Public Law 101-239) on December 19, 1989. Internal Revenue Code Section 310.6676-1, which was in effect at the time of the Charging Party's discharge, states, "Under Section 301.6109-1(c) a payer is required to request the identifying number of the payee. If after such a request has been made, the payee does not furnish the payer with his identifying number, the penalty will not be assessed against the payer." (emphasis added) Therefore, under the law as it existed on the day that the Charging Party was discharged, the Respondent could have accommodated the Charging Party without undue hardship. All that was necessary was that it request a number and so notify the Internal Revenue Service by affidavit, that it had. The Omnibus Budget Restoration Act (Public Law 101-239) provides that "No penalty shall be imposed under this part with respect to any failure if it is shown that such failure is due to reasonable cause and not to willful neglect." The temporary regulations make clear that under the present law, if an employer requests an identifying number and so notifies the Internal Revenue Service, by affidavit, it will not be subject to any penalties for failure to report an identifying number. The evidence supports the charge that there is a violation of Title VII of the 1964 Civil Rights Act, as amended, because of the Charging Party's religious beliefs, Christian Fundamentalist. Section 706(b) of Title VII requires that if the Commission determines there is reasonable cause to believe that the charge is true, it shall endeavor to eliminate the alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion. Having determined there is reasonable cause to believe the charge is true, the Commission now invites the parties to join with it in a collective effort toward a just resolution of this matter. A representative of this office will be in contact with each party in the near future to begin the conciliation process. [PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION TO DISMISS - 33] (000072) ---------------------------------------------------------------------------- LETTER OF DETERMINATION EEOC CHARGE NUMBER 310 89 2438 PAGE NUMBER 3 Disclosure of information obtained by the Commission during the conciliation process will be made in accordance with 706(b) of Title VII and 1601.26 of the Commission's Procedural Regulations. If the Respondent declines to enter into settlement discussions, or if the Commission's representative for any other reason is unable to secure a settlement acceptable to the Commission, the Director shall so inform the parties in writing and advise them of the court enforcement procedures available to the Charging Party and the Commission. ON BEHALF OF THE COMMISSION: MAY 2, 1990 [SIGNATURE] DATE JACQUELINE R. BRADLEY DALLAS DISTRICT DIRECTOR [PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION TO DISMISS - 34] (000073) ---------------------------------------------------------------------------- [non-existent -- Bates Stamp numbered out of sequence] (000074) ---------------------------------------------------------------------------- [COURT'S INITIAL PRETRIAL SCHEDULING ORDER -- OMITTED AS MERELY SETS OUT DATES FOR FILING MOTIONS AND A STATUS CONFERENCE -- SIGNED BY ROBERT B. MALONEY, PRESIDING JUDGE -- FILED 05-21-92]. [INITIAL PRETRIAL SCHEDULING ORDER - 1] (000075) ---------------------------------------------------------------------------- [COURT'S INITIAL PRETRIAL SCHEDULING ORDER -- CONT.]. [INITIAL PRETRIAL SCHEDULING ORDER - 2] (000076) ---------------------------------------------------------------------------- UNITED STATES DISTRICT COURT FOR THE [COURT STAMP NORTHERN DISTRICT OF TEXAS "FILED NOV 3 DALLAS DIVISION 1992"] EQUAL EMPLOYMENT OPPORTUNITY ) COMMISSION, ) ) CIVIL ACTION NO. Plaintiff, ) CA3-92-0169-T ) v. ) ) INFORMATION SYSTEMS CONSULTING ) A DIVISION OF DIVERSIFIED HUMAN ) RESOURCES GROUP, ) ) Defendant. ) -------------------------------------) CONSENT DECREE This action was initiated on January 27, 1992, by the plaintiff, the Equal Employment Opportunity Commission (hereinafter the "Commission"), an agency of the United States Government, alleging that the defendant, Information Systems Consulting, A Division of Diversified Human Resources Group, had violated Title VII of the Civil Rights Act of 1964, as amended, by terminating Bruce Hanson because of his refusal to obtain a social security number after Mr. Hanson advised the defendant that obtaining or using a social security number was in conflict with his religious beliefs. The Commission and Information Systems Consulting, A Division of Diversified Human Resources Group desire to settle this action, and therefore, do hereby stipulate and consent to the entry of [this] Consent Decree as final and binding between the parties signatory hereto and their successors or assigns. This Decree resolves all matters related to Complaint CA3-92-0169-T filed in the United [CONSENT DECREE - 1] (000077) ---------------------------------------------------------------------------- States District Court for the Northern District of Texas, Dallas Division. The parties have agreed that this Decree may be entered without Findings of Fact and Conclusions of Law having been made and entered by the Court. In consideration of the mutual promises of each party to this Decree, the sufficiency of which is hereby acknowledged, the Commission and Information Systems Consulting, A Division of Diversified Human Resources Group agree as follows, the Court finds appropriate, and therefore it is ORDERED, ADJUDGED AND DECREED that: 1. This Decree resolves all issues raised in the EEOC charge No. 310-89-2438. This Decree further resolves all issues in the Complaint filed by the Commission in this case. The Commission waives further litigation on all issues raised in the above referenced charge and Complaint. The Commission does not waive processing or litigating charges other than the charge referred to above. 2. The parties agree and the Court finds that this Court has jurisdiction of the subject matter of this action and of the parties, that venue is proper, and that all administrative prerequisites to filing suit have been satisfied. 3. By entering into this Decree, the parties have not admitted any contentions regarding the allegations on the merits of this cause of action. No party shall contest the validity of this Decree nor the jurisdiction of the federal district court to INFORMATION SYSTEMS CONSULTING, A DIVISION OF DIVERSIFIED HUMAN RESOURCES GROUP 2 [CONSENT DECREE - 2] (000078) ---------------------------------------------------------------------------- enforce its Decree and its terms or the right of any party to bring an enforcement suit upon breach of any of the terms of this Decree by any other party. Jurisdiction over this action is retained by the Court for the purpose of enabling any of the parties to this Consent Decree to apply to the Court at any time for such further order and directions as may be necessary or appropriate for the construction or implementation of the Decree or any of its provisions, or for the enforcement or compliance therewith. 4. This Decree is being issued with the consent of the parties and does not constitute an adjudication or finding by this Court on the merits of the allegations of the complaint. By entering into this Decree, Information Systems Consulting, A Division of Diversified Human Resources Group, does not admit, nor has this Court made any determination with respect to, the claims that there have been any violations of Title VII or any other statute, regulations or ordinance promulgated by any federal, state or local agency dealing with discrimination, by Information Systems Consulting, A Division of Diversified Human Resources Group. Nothing contained in this Decree shall be construed as an admissions of liability on the part of the defendant. 5. The defendant, Information Systems Consulting, A Division of Diversified Human Resources Group, in settlement of this dispute, shall make an award of backpay in the amount of $10,000.00 to Bruce Hanson. The award shall be paid as follows: INFORMATION SYSTEMS CONSULTING, A DIVISION OF DIVERSIFIED HUMAN RESOURCES GROUP 3 [CONSENT DECREE - 3] (000079) ---------------------------------------------------------------------------- (a) a payment of $3,500.00 shall be made upon entry of the Consent Decree; (b) a payment of $3,500.00 shall be made four months after the entry of the Consent Decree; (c) a payment of $3,000.00 shall be made eight (8) months after the entry of the Consent Decree. 6. The defendant shall make legal deductions for withholding of Federal income taxes and the employee portion of social security from the backpay checks. The defendant shall include with the check, an itemized statement indicating specific amounts paid and deductions made. All W-2 forms shall be provided as required by law. 7. The defendant shall make all employer contributions to social security as required by law on the back wages to be paid to Bruce Hanson pursuant to this Consent Decree. 8. The defendant, Information Systems Consulting, A Division of Diversified Human Resource Group, shall be permanently enjoined from terminating an employee or refusing to hire an individual for failure to provide a social security number because of religious beliefs. If an employee or applicant for employment advises the defendant that he does not have a social security number because of his religious beliefs, the defendant shall request, pursuant to Section 6724 of the Internal Revenue Service Code, 26 U.S.C.  6724, a waiver of any penalties that may be imposed for failing to include an employee social security number on forms and documents INFORMATION SYSTEMS CONSULTING, A DIVISION OF DIVERSIFIED HUMAN RESOURCES GROUP 4 [CONSENT DECREE - 4] (000080) ---------------------------------------------------------------------------- submitted to the IRS. In the event the waiver is granted the employee shall be treated the same as all other employees. 9. For a period of two (2) years f rom the entry of this Decree the defendant shall provide a report to the Equal Employment Commission of all applicants or employees who refuse to provide a social security number because of religious beliefs. The Commission shall be notified within ten (10) days of the date the defendant is notified that the individual does not have a social security number because of religious beliefs. The defendant shall advise the Commission of the date the IRS waiver was requested and the outcome of the request. The reports shall be directed to: Jeffrey C. Bannon Regional Attorney Equal Employment Opportunity Commission 8303 Elmbrook Drive, 2nd Floor Dallas, Texas 75247 10. Bruce Hanson hereby specifically and voluntarily waives any right to reinstatement. 11. Bruce Hanson hereby agrees to release the defendant from all claims, demands, damages and causes of action arising from the allegations in charge number 310 89 2438 and agrees that this Consent Decree resolves all issues arising out of the claims alleged in charge number 310 89 2438. 12. The defendant shall post the notice attached as Exhibit A in a conspicuous place for sixty (60) days from entry of this decree. INFORMATION SYSTEMS CONSULTING, A DIVISION OF DIVERSIFIED HUMAN RESOURCES GROUP 5 [CONSENT DECREE - 5] (000081) ---------------------------------------------------------------------------- 13. The parties agree to pay their own costs. SO ORDERED, ADJUDGED AND DECREED this 30th day of October, 1992. [SIGNATURE OF ROBERT B. MALONEY] UNITED STATES DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF TEXAS AGREED TO IN FORM AND CONTENT FOR THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION: DONALD R. LIVINGSTON [SIGNATURE] General Counsel Bruce Hanson 33 Wildwood Drive PHILLIP B. SKLOVER Flower Mound, Texas 75028 Associate General Counsel [SIGNATURE] JEFFERY C. BANNON Regional Attorney Connecticut State Bar No. 301166 [SIGNATURE] KATHERINE E. BISSELL Supervisory Trial Attorney Texas Bar No. 02356020 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Dallas District Office 8303 Elmbrook Drive, 2nd Floor Dallas, Texas 75247 (214) 767-7948 INFORMATION SYSTEMS CONSULTING, A DIVISION OF DIVERSIFIED HUMAN RESOURCES GROUP 6 [CONSENT DECREE - 6] (000082) ---------------------------------------------------------------------------- FOR INFORMATION SYSTEMS CONSULTING, A DIVISION OF DIVERSIFIED HUMAN RESOURCES GROUP [SIGNATURE] Mr. Dan Hartsfield Ms. T. Michele Baird Gardere & Wynne A Registered Limited Liability Partnership 3000 Thanksgiving Tower 1601 Elm Street Dallas, Texas 75201-4761 [SIGNATURE] Billie Tapp, President Information Systems Consulting INFORMATION SYSTEMS CONSULTING, A DIVISION OF DIVERSIFIED HUMAN RESOURCES GROUP 7 [CONSENT DECREE - 7] (000083) ---------------------------------------------------------------------------- U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Dallas District Office 8303 Elmbrook Drive Dallas, TX 75247 PH: (214) 767-7015 TDD: (214) 767-7523 FAX: (214) 767-7959 NOTICE TO ALL EMPLOYEES POSTED PURSUANT TO A CONSENT DECREE APPROVED BY A UNITED STATES DISTRICT COURT JUDGE FOR THE NORTHERN DISTRICT OF TEXAS, DALLAS DIVISION This Notice is being posted as part of the remedy agreed to pursuant to a Consent Decree between Information Systems Consulting, A Division of Diversified Human Resources Group, and the U.S. Equal Employment Opportunity Commission (EEOC) in the case EEOC v. Information Systems Consulting, A Division of Diversified Human Resources Group, Civil Action No. CA3-92-0169-T. Federal law requires that there be no discrimination against any employee or applicant for employment because of the individual's race, color, sex, religion, or national origin, with respect to hiring, promotion, firing, compensation, or other terms,, conditions and/or privileges or employment. Information Systems Consulting, A Division of Diversified Human Resources Group, supports and will comply with such federal law in all respects and will not take any action against employees because they have exercised their rights under Title VII of the Civil Rights Act of 1964, as amended. Specifically, Information Systems Consulting, A Division of Diversified Human Resources Group will not terminate an employee because of religious beliefs. [SIGNATURE] [SIGNATURE OF MICHELE BAIRD] JACQUELINE R. BRADLEY REPRESENTATIVE, INFORMATION SYSTEMS District Director, CONSULTING, A DIVISION OF Equal Employment Opportunity DIVERSIFIED HUMAN RESOURCES GROUP Commission THIS IS AN OFFICIAL NOTICE AND MUST NOT BE REMOVED OR DEFACED BY ANYONE This Notice must remain posted for a period of sixty (60) days and not be altered, defaced, or covered by any other materials. All question concerning this notice or compliance with its provisions may be directed to Jeffrey C. Bannon, Esq., Regional Attorney, Equal Employment Opportunity Commission, Dallas District Office, 8303 Elmbrook Drive, 2nd Floor, Dallas, Texas 75247, (214) 767-7945. EXHIBIT A [CONSENT DECREE - 8] (000084) ---------------------------------------------------------------------------- [non-existent -- Bates Stamp numbered out of sequence] (000085) ---------------------------------------------------------------------------- ["UNDATED" MOTION AND BRIEF BY ISC/DEFENDANT FOR A PROTECTIVE ORDER TO STAY DISCOVERY UNTIL THE COURT RULED ON ISC's PENDING MOTION TO DISMISS -- OMITTED DUE TO ISC'S MOTION TO DISMISS BEING DENIED LATER]. [DEFENDANT'S MOTION FOR PROTECTIVE ORDER - 1] (000086) ---------------------------------------------------------------------------- [ISC'S MOTION TO STAY DISCOVERY -- CONT.]. [DEFENDANT'S MOTION FOR PROTECTIVE ORDER - 2] (000087) ---------------------------------------------------------------------------- [ISC'S MOTION TO STAY DISCOVERY -- CONT.]. [DEFENDANT'S MOTION FOR PROTECTIVE ORDER - 3] (000088) ---------------------------------------------------------------------------- [ISC'S MOTION TO STAY DISCOVERY -- CONT.]. [DEFENDANT'S MOTION FOR PROTECTIVE ORDER - 4] (000089) ---------------------------------------------------------------------------- [ISC's PRE-PREPARED "ORDER GRANTING DEFENDANT'S MOTION FOR PROTECTIVE ORDER" -- OMITTED AS NEVER SIGNED BY JUDGE]. ["UNSIGNED" ORDER GRANTING MOTION FOR PROTECTIVE ORDER - 1] (000090) ---------------------------------------------------------------------------- IN THE UNITED STATES DISTRICT COURT [COURT STAMP FOR THE NORTHERN DISTRICT OF TEXAS "FILED APR 16 DALLAS DIVISION 1992"] EQUAL EMPLOYMENT OPPORTUNITY  COMMISSION,   CIVIL ACTION NO. Plaintiff,  CA3-92-0169-T  v.   INFORMATION SYSTEMS CONSULTING  A DIVISION OF DIVERSIFIED HUMAN  RESOURCES GROUP,   Defendant.   DEFENDANTS REPLY TO PLAINTIFF'S RESPONSE TO DEFENDANTS MOTION TO DISMISS Pursuant to Local Rule 5.1 of the Northern District of Texas, INFORMATION SYSTEMS CONSULTING, a division of Diversified Human Resources Group ("ISC" or the "Company"), files this reply to Plaintiff's Response to Defendant's Motion to Dismiss ("Response"), and would show the following: Summary of the reply The Equal Employment Opportunity Commission's ("EEOC") Response to Defendant's Motion to Dismiss completely fails to refute ISC's two primary arguments for dismissal of the EEOC's complaint. First, nowhere in its Response does the EEOC rebut the obvious and irreparable flaw in the theory of the case - that Bruce Hanson's ("Hanson") religious beliefs conflict with [REPLY TO PLAINTIFF'S RESPONSE TO MOTION TO DISMISS - 1] (000091) ---------------------------------------------------------------------------- obligations created by and imposed by federal law., and not any work rule or requirement crated or promulgated by the Company. The EEOC does not even dispute that Mr. Hanson is obligated by federal tax and immigration laws to provide ISC with his Social Security number. Instead, the EEOC continues to ignore the novelty of this case when examined in the light of the entire body of religious discrimination cases decided under TITLE VII, and fallaciously concludes that ISC, by requiring Mr. Hanson to comply with federal law, somehow promulgated a work rule that employees obtain and provide a social security number. This simplistic reasoning does not cure the incurable - Mr. Hanson's asserted religious beliefs conflict with federal law, not any ISC employment requirement. As such the EEOC's complaint remains fatally defective and subject to dismissal. Second, the EEOC has failed to articulate any rational argument supported by even a scintilla of precedent that an employer is obligated to violate federal regulations in order to accommodate an employee's religious beliefs if the resulting legal penalties which flow from the violations are arguably avoidable or affordable. The EEOC similarly ignores the compelling argument that to require an employer to violate federal law as an accommodation to an employees religious belief's constitutes "undue hardship", as a matter of law. Instead, without any legal authority or persuasive reasoning, the EEOC persists in placing the cart before the horse and argues that because ISC might have avoided the tax and other penalties, ISC should have disregarded both its and Mr. Hanson's legal obligations in order to accommodate his religious beliefs. It seems indeed an anomaly for an agency of the federal government to demand that employers judge their business conduct not by its [REPLY TO PLAINTIFF'S RESPONSE TO MOTION TO DISMISS - 2] (000092) ---------------------------------------------------------------------------- legality but rather by the possibility and severity of the resulting legal sanctions if and when they are caught. I. Mr. Hanson's Obligation to Provide ISC With a Social Security Number Is a Statutory Obligation not an ISC Employment Requirement. In its Response the EEOC admits that to establish a prima facie claim of religious discrimination it must demonstrate that Mr. Hanson had a bona fide religious belief that conflicts with an ISC employment requirement. This expected concession - in light of controlling Fifth Circuit precedent - alone warrants dismissal of the Complaint. Dismissal of the complaint is warranted because the EEOC nowhere in its Response identifies an employment requirement of ISC that conflicts with Mr. Hanson's religious beliefs. The EEOC has not even attempted to identify a specific employment requirement of the Company, such as all employees must work on Saturdays, and then argue that Mr. Hanson's belief's conflicted with this requirement and resulted in his termination. It is beyond dispute that Mr. Hanson's obligation to obtain and furnish ISC with a Social Security number arises soley from Federal law. The regulations discussed at length in Defendant's brief in support of its motion to dismiss expressly impose upon Mr. Hanson an affirmative, mandatory obligation to obtain and provide ISC with his Social Security number. See Defandant's Brief in Support of Motion to Dismiss, pp. 8-13. Likewise, these regulations require ISC to utilize the Social Security number that Mr. Hanson is obligated - [REPLY TO PLAINTIFF'S RESPONSE TO MOTION TO DISMISS - 3] (000093) ---------------------------------------------------------------------------- as a matter of law - to obtain. 1 The EEOC however, chooses to pay little if any, attention to these requirement of federal law. The EEOC's reason for doing so is obvious since these federal requirements alone serve as the source of the conflict with Mr. Hanson's religious beliefs. In a futile effort to skirt the issue, the EEOC seems to conclude that ISC's insistence on complying with federal law somehow satisfies its burden to provide that Mr. Hanson's religious belief conflicts with an ISC employment requirement. The EEOC specifically argues that "the defendant, not the IRS, made the decision to terminate Mr. Hanson's employment because he did not have a social security number." See Plaintiff's Response P.7. In other words, the EEOC argues that ISC terminated his employment and thereby violated Title VII because Mr. Hanson refused to comply with federal law. This argument proves ISC's point. Whether it was the IRS or the Defendant that made the decision to terminate Mr. Hanson's employment is completely irrelevant. The issue is whether Mr. Hanson was terminated because of a conflict between his religious beliefs and an ISC employment requirement or a requirement of federal law. Since the conflict arises between Mr. Hanson's religious beliefs and federal law, not an ISC work rule, the Complaint is subject to dismissal. This indisputable fact distinguishes ----- 1 Treasury Regulation 31.6011(b)-2 requires an employee on the day on which he enters the employ of an employer for wages, to provide his employer with either a Social Security number or a statement indicating that he has filed an application for a Social Security number. In addition to the tax provision, IRCA also requires an employee to complete Part 1 of the I-9 Form which has a specific blank for the Employes Social Security number. [REPLY TO PLAINTIFF'S RESPONSE TO MOTION TO DISMISS - 4] (000094) ---------------------------------------------------------------------------- this case from every reported religious discrimination case and precludes, as a matter of law, the EEOC from stating a claim of religious discrimination. II. Requiring ISC to Accomodate Mr. Hanson's Religious Beliefs Would Place an Undue Hardship on ISC. The EEOC concentrates is response on ISC's burden to demonstrate that it reasonably accommodated Mr. Hanson's religious beliefs. In discussing ISC's obligation to reasonably accommodate Mr. Hanson, the EEOC emphasizes ISC's potential avoidance of the penalty for violating tax regulations. The EEOC's argument again, puts the cart before the horse. The issue is not whether ISC can avoid the penalty for violating a statue to accommodate Mr. Hanson's religious beliefs, but instead whether the fact that ISC must violate the statute in the first place constitutes an undue hardship on ISC. A. To comply with the Tax Statutes, an Employer Must Require an Employee to Provide a Social Security Number to Remain Employed. The EEOC's representation in its Response that the Internal Revenue Code and its regulations do not contain an absolute requirement that an employer prove an employee's Social Security number to the IRS is obviously erroneous. See EEOC's Response, p. 8. Section 6109(a)(3) of the Internal Revenue Code ("IRC"), cited by the EEOC expressly states that the employer "shall" include the employee's Social Security number on the return. The plain language of this regulation states that the identifying number "shall" be included. Because of the compulsory language of the statute, ISC had no alternative but to require [REPLY TO PLAINTIFF'S RESPONSE TO MOTION TO DISMISS - 5] (000095) ---------------------------------------------------------------------------- Mr. Hanson to obtain and provide his Social Security number in order to comply with this statutory requirement. As the EEOC points out, ISC could have prepared an affidavit stating that it had requested Mr. Hanson's Social Security number, but it is certainly unclear whether this affidavit would have absolved ISC of liability for violating the regulation. This waver provision may be a safe harbor for employers whose employees had applied for, but not received a Social Security, but it is undisputed that Mr. Hanson had no intention of ever obtaining a Social Security number. 2 B. The EEOC's Response Totally Ignores the Employer's Obligation to Ensure Part 1 of an Employee's I-9 Form is Completed. Finally, the EEOC's Response never addresses how ISC can avoid the direct conflict between accommodating Mr. Hanson's religious beliefs and complying with its obligations under the Immigration Reform and Control Act ("IRCA"). Both the implementing regulations for IRCA and the language on the face of the Employment Information and ----- 2 In arguing that ISC could have avoided the penalty for failing to include Mr. Hanson's Social Security number on its tax statements, the EEOC's Response references section 6724. Section 6724 discusses a waiver of penalty for violation of section 6723, but this statute did not become effective until December 1989, which is almost four months after Mr. Hanson's termination from ISC. Accordingly this section is irrelevant for the purposes of determining whether it would have been an undue hardship on ISC to violate tax statutes to accommodate Mr. Hanson's religious beliefs. [EDITOR -- I.S.C CLAIMING THAT  6724 DID NOT BECOME EFFECTIVE UNTIL 4 MONTHS AFTER HANSON WAS FIRED IS IRRELEVANT, EVEN IF TRUE, AS BOTH I.S.C. (p.25) AND THE EEOC (p.51-52) AGREE THAT  6676 WAS IN EFFECT AT THE TIME OF THE FIRING AND  6676 CONTAINED THE SAME "reasonable cause" CLAUSE THAT WOULD HAVE AVOIDED PENALTIES FOR I.S.C.] [REPLY TO PLAINTIFF'S RESPONSE TO MOTION TO DISMISS - 6] (000096) ---------------------------------------------------------------------------- Verification form ("I-9 Form") state that an employer is obligated to ensure that both parts of an I-9 Form are completed. 3 There is no exception to this requirement. The EEOC's characterization of ISC's obligations under IRCA completely fails to address the employer's obligation to maintain a completed I-9 form on each employee. The EEOC points out that in completing the second part of the I-9 form, an employer can rely on other documents besides a Social Security card to verify an employee's identity and verification. ISC, however, never represented that Mr. Hanson's Social Security number was required to complete the second part of the I-9 form. It is the first part of the I-9 form that requires a Social Security number, and the employer is responsible for ensuring that the employee completes part 1 of the I-9 form. Mr. Hanson's I-9 form was incomplete because he did not fill in the blank space for a Social Security number, and ISC could have been fined for having an incomplete form for Mr. Hanson. Not surprisingly, the EEOC never explains how ISC could have avoided liability for failing to ensure that Mr. Hanson's I-9 form was entirely completed. The EEOC simply glosses over this issue because ISC has absolute liability for maintaining a completed I-9 form Mr. Hanson, and there are no exceptions to this obligation. In sum, IRCA requires ISC to maintain a completed I-9 for all employees and its failure to maintain this document would place ISC in violation of the law. ----- 3 The regulations implementing IRCA state "[a] person or entity that hires or recruits or refers for a fee an individual for employment must ensure that the individual properly" completes section 1. Section 1 of the I-9 Form has a specific place for the Employee's Social Security number. [REPLY TO PLAINTIFF'S RESPONSE TO MOTION TO DISMISS - 7] (000097) ---------------------------------------------------------------------------- III. When an Individual's Religious Beliefs Prevent His Compliance with Statutory Obligations, the Individual's Beliefs Must Yield. The Supreme Court has already concluded that every person cannot be shielded from all the burdens incident to exercising every aspect of the right to practice his or her religious beliefs. United States v. Lee, 455 U.S. 252, 261 (1982). The Supreme Court in Lee explained that "when followers of a particular sect enter into a commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on the others in the activity." Lee, 455 U.S. at 261. In the instant case, Mr. Hanson voluntarily engaged in commercial activity by seeking employment with ISC, and consequently, he must comply with the statutory requirements governing the commercial market, including providing a Social Security number. Neither Mr. Hanson nor the EEOC can demand that an employer violate federal law because he chooses to engage in employment. The Supreme Court has also determined that there is a strong public interest in maintaining the integrity of the Social Security system. Employees are required to have Social Security numbers because these numbers are the only means the Social Security Administration has of monitoring contributions to the system and receipt of benefits from the system. United States v. Lee, 455 U.S. 252, 253 (1982). In Bowman, the Supreme Court explained that "[t]he Social Security number requirement clearly promotes a legitimate and important public interest. No one can doubt that preventing fraud in these benefits programs is an important goal." Obtaining and providing a social security number is wholly neutral in religious terms and uniformity applicable. In the instant case, Mr. Hanson's [REPLY TO PLAINTIFF'S RESPONSE TO MOTION TO DISMISS - 8] (000098) ---------------------------------------------------------------------------- religious beliefs must yield to the governments overriding interest in requiring utilization of a Social Security number. Bowman v. Roy, 476 U.S. 693, 710 (1986). IV. Conclusion. Nothing in the EEOC's response explains how it can establish a prima facie case of religious discrimination when the conflict rises between Mr. Hanson's religious belief and federal law. ISC did not promulgate the tax and Immigration laws that require Mr. Hanson to obtain and furnish a Social Security number. ISC merely complied with the law. To condone Mr. Hanson's violation of law and to require ISC to also violate the law and become subject to penalties as an accommodation to his religious belief creates an undue hardship on ISC as a matter of law. Numerous courts addressing the issue of an employer's obligation to accommodate an employee's religious belief have determined that violating a seniority system, paying overtime to one employee to cover another employee's shift and anything else that requires more than a "de minimis expense" creates an undue hardship on an employer. Requiring an employer to violate a law certainly surpasses the minimal threshold for under hardship. For the forgoing reasons, ISC respectfully requests the Court to dismiss, with prejudice, the EEOC's Complaint filed in this action pursuant to Fed.R.Civ.P. 12(b)(6). [REPLY TO PLAINTIFF'S RESPONSE TO MOTION TO DISMISS - 9] (000099) ---------------------------------------------------------------------------- Respectfully submitted, GARDERE & WYNNE A Registered Limited Liability Partnership 1601 Elm Street, Suite 3000 Thanksgiving Tower Dallas, Texas 75201 Telephone: (214) 999-3000 Telecopier: (214) 999-4270 By: [SIGNATURE] Dan Hartsfield State Bar No. 09170800 T. Michele Baird State Bar No. 01561600 CERTIFICATE OF SERVICE This certifies that on the 16th day of April, 1992, a true and correct copy of the foregoing Defendant's Reply to Plaintiff's Response to Defendant's Motion to Dismiss was served by certified mail, return receipt requested upon the following: [KATHERINE E. BISSELL, ADDRESS] [SIGNATURE] Dan Hartsfield [REPLY TO PLAINTIFF'S RESPONSE TO MOTION TO DISMISS - 10] (000100) ---------------------------------------------------------------------------- IN THE UNITED STATES DISTRICT COURT [COURT STAMP FOR THE NORTHERN DISTRICT OF TEXAS "FILED APR 20 DALLAS DIVISION 1992"] EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, CIVIL ACTION NO. Plaintiff, CA3-92-0169-T v. INFORMATION SYSTEMS CONSULTING A DIVISION OF DIVERSIFIED HUMAN RESOURCES GROUP, Defendant. ORDER DENYING DEFENDANT'S MOTION TO DISMISS AND DECLARING MOOT DEFENDANT'S MOTION FOR PROTECTIVE ORDER This matter is before the court on Defendant's March 9, 1992 motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, and Defendant's April 9, 1992 motion for protective order. Plaintiff responded to the motion to dismiss on April 1, 1992. The court, having considered the motion to dismiss and the response, is of the opinion that the motion to dismiss should be denied. Defendant's motion for protective order sought a stay of discovery until the court ruled on the motion to dismiss. In light of this order denying the motion to dismiss, the motion for protective order is moot. [ORDER DENYING DEFENDANT'S MOTION TO DISMISS - 1] (000101) ---------------------------------------------------------------------------- BACKGROUND Plaintiff, the Equal Employment opportunity Commission (EEOC) alleges Defendant, information Systems Consulting (ISC), engaged in unlawful employment practices with respect to the termination of the employment of Bruce Hanson. EEOC alleges that ISC violated section 703(a) of Title VII, 42 U.S.C.  20OOe-2(a), by terminating Hanson's employment because of his religious beliefs. The complaint alleges that Hanson's religion is Christian Fundamentalist, that Hanson's religion precluded him from obtaining a social security number, and that Hanson was terminated by ISC because he refused to obtain a social security number. ISC has moved for dismissal of the EEOC's complaint because it fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). ISC argues that Plaintiff has failed to make sufficient allegations necessary to support the relief requested. First, ISC argues Plaintiff has failed to allege that Hanson "had a bona fide religious belief that conflicted with an employment requirement of ISC." (Emphasis in Defendant's brief.) Second, Defendant argues Plaintiff failed to allege Hanson "was terminated for failure to comply with the conflicting employment requirement of ISC." (Emphasis in Defendant's brief.) Defendant argues that these alleged defects in pleading require dismissal of Plaintiff's complaint. Plaintiff responds that it has sufficiently alleged each of the required elements of its claim for religious discrimination, [ORDER DENYING DEFENDANT'S MOTION TO DISMISS - 2] (000102) ---------------------------------------------------------------------------- and that Defendant's motion should be dismissed. RULE 12(B)(6) STANDARD A Rule 12(b)(6) motion tests the legal sufficiency of the claim or claims stated in the complaint. The court must decide whether the facts alleged, if true, would entitle the EEOC to the legal remedy requested. Unless the answer is unequivocally "no," the motion must be denied. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Many courts view Rule 12(b)(6) motions with "disfavor" because of the role pleadings play in federal practice and the liberal policy regarding amendment: "The motion to dismiss for failure to state a claim is viewed with disfavor and is rarely granted." Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982) (quoting Wright & Miller, Federal Practice & Procedure: Civil 1357  at 598 (1969)). The Fifth Circuit has established two primary considerations in determining the propriety of a Rule 12(b)(6) motion. First, the court must accept as true all well pleaded facts in the complaint, and the complaint is to be liberally construed in favor of the plaintiff; however, the court will not accept as true conclusive allegations in the complaint. Id. Second, a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts that would entitle him to relief. Id. [ORDER DENYING DEFENDANT'S MOTION TO DISMISS - 3] (000103) ---------------------------------------------------------------------------- DISCUSSION 1. Allegation of "bona fide" religious belief In a religious discrimination case under Title VII, a prima facie case of religious discrimination is established by proving: (1) plaintiff has a bona fide religious belief that conflicts with an employment requirement; (2) plaintiff informed the employer of this belief; and (3) plaintiff was disciplined for failure to comply with the conflicting employment requirement. Turpen v. Missouri-Kansas-Texas R.R. Co., 736 F.2d 1022, 1026 (5th Cir. 1984). ISC alleges, as its first ground for dismissal, that Plaintiff has failed to allege Hanson has a particular bona fide religious belief. Plaintiff alleges that "Defendant discharged Bruce Hanson and refused to accommodate his religion, Christian Fundamentalist." ISC cites a number of cases which hold that, in order for a plaintiff to prevail on a claim of religious discrimination, the alleged religious belief must be sincerely held and constitute a bona fide religious belief. Welsh v. United States, 398 U.S. 333 (1970); McGinnis v. United States Postal Serv., 512 F. Supp. 517, 520 (N.D. Cal. 1980); Kettell v. Johnson & Johnson, 337 F. Supp. 892, 895 (E.D. Ark. 1972). These cases require a plaintiff to prove that the belief is sincere, not allege the requisite sincerity. ISC cites no cases holding that dismissal under Rule 12(b)(6) is appropriate where a plaintiff fails to allege specifically that the relevant religious belief is sincere or bona [ORDER DENYING DEFENDANT'S MOTION TO DISMISS - 4] (000104) ---------------------------------------------------------------------------- fide. Whether or not a religious belief is Sincere] is a question of fact. Philbrook v. Ansosia Bd. of Educ., 757 F. 2d 476, 482 (2d Cir. 1985) remanded on other grounds, 479 U.S. 60 (1986). The court is unconvinced that the EEOC's failure to allege that Hanson's belief is "sincere" or "bona fide" requires repleading or dismissal. Pleading that Hanson has a particular belief is sufficient to raise the issue of whether that belief falls within the scope of protection afforded by Title VII, i.e., whether it is sincere or bona fide. 2. Conflicting employment requirement of ISC To obtain relief under Title VII, the religious belief at issue must conflict with an employment requirement. ISC argues that Hanson's belief does not conflict with a requirement imposed by ISC but, rather, the conflict is between Hanson's belief and federal law requiring persons in Hanson's situation to obtain social security numbers. The court recognizes and is aware of the federal requirements regarding social security numbers. However, the court is unaware of, and ISC does not cite, any federal law that requires termination of an employee because he or she refuses to obtain a social security number. The employment practice at issue is ISC's termination of Hanson because he refused to obtain a social security number. The fact that federal law requires an employee to obtain a social security number has no bearing on the issue of whether an employer [ORDER DENYING DEFENDANT'S MOTION TO DISMISS - 5] (000105) ---------------------------------------------------------------------------- has a policy of terminating employees that refuse to obtain a social security number. Notwithstanding this fact, the requirements of federal law may be particularly relevant in deciding whether a particular policy reasonably accommodates [an] employee's religious needs without undue hardship to the employer. 1 In other words, the policy may be justified in light of federal law. However, federal law does not negate the fact that the policy exists. Defendant has failed to establish that Plaintiff's complaint should be dismissed for failure to state a claim upon which relief can be granted. It is therefore ORDERED that Defendant's March 9, 1992 motion to dismiss is denied. It is FURTHER ORDERED that Defendant's April 9, 1992 motion for protective order is moot. Signed this 20th day of April 1992. [SIGNATURE] Robert B. Maloney U.S. District Judge ----- 1 If a plaintiff establishes a prima facie case of religious discrimination, the burden shifts to the employer to show that it was unable to reasonably accomodate the plaintiff's religious needs without undue hardship. Turpen, 736 F.2d at 1026. [ORDER DENYING DEFENDANT'S MOTION TO DISMISS - 6] (000106) ---------------------------------------------------------------------------- IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION EQUAL EMPLOYMENT OPPORTUNITY  COMMISSION,   CIVIL ACTION NO. Plaintiff,  CA3-92-0169-T  v.   INFORMATION SYSTEMS CONSULTING  A DIVISION OF DIVERSIFIED HUMAN  RESOURCES GROUP,   Defendant.   DEFENDANTS ORIGINAL ANSWER Defendant, Information Systems Consulting, A division of Diversified Human Resources group, files this, its original answer and would show the following: FIRST DEFENSE Plaintiffs complaint fails to state a claim against ISC upon which relief can be granted. SECOND DEFENSE ISC admits the allegations contained in paragraphs 1, 3, 4, and 5 of the Complaint; alleges that it is without knowledge or information sufficient to form a belief as to the truth of the allegation in paragraph 7 that Mr. Hanson was a Christian Fundamentalist; and denies each and every other allegation contained in the Complaint. [DEFENDANT'S ORIGINAL ANSWER - 1] (000107) ---------------------------------------------------------------------------- THIRD DEFENSE Plaintiff's claim for individual relief on behalf of Bruce Hanson is barred by the applicable statute of limitations. FOURTH DEFENSE Bruce Hanson has failed to take the necessary reasonable and or appropriate steps to mitigate his damages, if any. FIFTH DEFENSE Plantiff's claim for individual relief for Bruce Hanson is too speculative to be permitted. SIXTH DEFENSE At all pertinent times, ISC has conducted its employment policies in good faith within the meaning of and in accordance with Title VII of the Civil Rights Act ("Title VII"). SEVENTH DEFENSE ISC denies it has willfully or otherwise discriminated against Bruce Hanson, or in any, failed to comply with the requirements of Title VII. Instead, any treatment accorded Bruce Hanson by ISC has been the result of ISC's legitimate, non-discriminatory, business considerations. EIGHTH DEFENSE ISC's termination of Bruce Hanson did not violate Title VII, because ISC made an attempt to reasonably accommodate Mr. Hanson's religious beliefs, if any. [DEFENDANT'S ORIGINAL ANSWER - 2] (000108) ---------------------------------------------------------------------------- NINTH DEFENSE Accommodation of Mr. Hanson's Religious beliefs, if any, would have consented an undue hardship on ISC. Respectfully submitted, GARDERE & WYNNE A Registered Limited Liability Partnership 1601 Elm Street, Suite 3000 Thanksgiving Tower Dallas, Texas 75201 Telephone: (214) 999-3000 Telecopier: (214) 999-4270 By: [SIGNATURE] Dan Hartsfield State Bar No. 09170800 T. Michele Baird State Bar No. 01561600 CERTIFICATE OF SERVICE This certifies that on the 30th day of April, 1992, a true and correct copy of the foregoing Defendant's Original Answer was served by certified mail, return receipt equested upon the following: [KATHERINE E. BISSELL, ADDRESS] [SIGNATURE] Dan Hartsfield [DEFENDANT'S ORIGINAL ANSWER - 3] (000109) ---------------------------------------------------------------------------- [OMITTED -- CONTAINED ONLY THE SAME ADDRESS GIVEN FOR K. BISSELL ON THE PREVIOUS PAGE (000109) -- INSIGNIFICANT]. [source document unknown] (000110) ---------------------------------------------------------------------------- ================================ END CASE ================================