=======================
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.
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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).
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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
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(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 ...."
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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).
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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.
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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.
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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).
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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.
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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.
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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).
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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
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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.
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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.)
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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
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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.
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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)
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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)
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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)
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[EXHIBIT A -- "I.N.S. FORM I-9" -- OMITTED].
[DEFENDANT'S MOTION TO DISMISS -- EXHIBIT A] (000037)
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[EXHIBIT A CONT. -- "I.N.S. FORM I-9 INSTRUCTIONS" -- OMITTED].
[DEFENDANT'S MOTION TO DISMISS -- EXHIBIT A] (000038)
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[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)
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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)
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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)
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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)
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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)
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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)
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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)
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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)
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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)
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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)
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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)
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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)
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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"]
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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)
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[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
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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"]
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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
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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
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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
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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
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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
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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
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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
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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"]
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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)
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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
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[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)
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[COURT'S INITIAL PRETRIAL SCHEDULING ORDER -- CONT.].
[INITIAL PRETRIAL SCHEDULING ORDER - 2] (000076)
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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)
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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)
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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)
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(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)
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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)
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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)
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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)
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[OMITTED -- CONTAINED ONLY THE SAME ADDRESS GIVEN FOR K. BISSELL
ON THE PREVIOUS PAGE (000109) -- INSIGNIFICANT].
[source document unknown] (000110)
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