Employment Law Daily Latino applicant rejected over prior invalid SSN awarded $1.1M in attorneys’ fees
Thursday, June 23, 2016

Latino applicant rejected over prior invalid SSN awarded $1.1M in attorneys’ fees

By Lorene D. Park, J.D. An applicant who was disqualified from employment by the California Department of Corrections and Rehabilitation (CDCR) because he had in prior years used an invalid Social Security Number (SSN), and who succeeded at trial on his claim that the CDCR’s neutral hiring policy had a significant disparate impact on Latino applicants in violation of Title VII, was awarded $1,186,307 in attorneys’ fees, plus an additional sum in costs. The district court in California adopted a special master’s report and recommendation with one minor modification (Guerrero v. California Department of Corrections and Rehabilitation, June 16, 2016, Alsup, W.). Invalid SSN. The plaintiff was born in Mexico and came to the U.S. at age 11. In 1995, at the age of 15, he started using a made-up SSN to get a job. The invented SSN was issued to someone else in 2004. Meanwhile, from 1997 until 2007 (when he obtained legal status), the plaintiff did "everything he reasonably could" to obtain legal residence. He also obtained an individual taxpayer identification number from the IRS. In 2007, he became a lawful permanent resident and got a valid SSN. In 2011, he became a U.S. citizen. Plaintiff’s application to be corrections officer. In hiring corrections officers (CO), California law requires the CDCR to do a background investigation to ensure good moral character. As part of this process, applicants complete a questionnaire. In 2009, the CDCR began using Question 75, asking: "Have you ever had or used a social security number other than the one you used on this questionnaire?" Applicants had to explain "yes" answers and were interviewed. The plaintiff applied to be a CO in 2011. He had the minimum qualifications and passed the written and physical exams, but had problems on Question 75. In his interview, he was told his invalid SSN use would be an issue and further documentation was requested. He submitted tax returns, and the investigating sergeant obtained a credit report. The plaintiff soon received a rejection letter stating: "The fact that you committed identity theft for eight years but [sic] utilizing a social security number of a United States citizen . . . reflects that you are not suitable to assume the duties and responsibilities of a peace officer." It also stated that using the invalid number showed a "willful disregard of the law" and a "lack of honesty, integrity, and good judgment." The plaintiff’s appeal was denied. He applied again in 2013 but was again rejected. Bench trial. After a bench trial, the court ruled in the plaintiff’s favor on his Title VII disparate impact claim. It found that the CDCR failed to properly apply three EEOC factors in assessing applicants’ use of invalid SSN numbers, including "the nature and gravity of the offense" and that its facially neutral hiring policy had a significant disparate impact on Latino applicants. The court further found that the CDCR has a legitimate business interest in ensuring that COs have good moral character but, because its background question had a disparate impact, it had to apply the EEOC’s factors, and it failed to do so here. The plaintiff’s equal protection claim failed because he did not make a prima facie showing that Question 75 had a discriminatory purpose. Thereafter, the plaintiff sought a wide array of relief including reinstatement, rescission of the letters withholding him from the eligibility list, purging of documents, declaratory relief, back pay, and broad systemic injunctive relief. In a September 28, 2015 order, the court awarded reinstatement, $140,362 in back pay, and rescission of the letters. Recommended attorneys’ fee award. The question of attorneys’ fees and costs was submitted to a special master, who authored a lengthy report (attached to the court’s order). The plaintiff sought $1,621,776 in fees but the defendants asserted that only $279,265 was appropriate. The special master reviewed hourly rates, the scope of the litigation, and the number of hours billed. She noted that the defendants did not dispute that, in gauging the prevailing market rates for non-profit, public interest attorneys, the appropriate benchmark is private practice attorneys at for-profit firms in the same district. Also significant was that this suit was "intensively litigated"—plaintiffs’ counsel brought the disparate impact and constitutional claims to trial in only 18 months. Meanwhile, there were four motions to dismiss, two motions to amend pleadings, document-intensive exchanges of discovery, 16 depositions, and five motions for summary judgment, along with trial preparations, the six-day bench trial, and post-trial proceedings. With all this in mind, and noting the CDCR’s concession that the plaintiff’s successful and unsuccessful claims were related, the special master reviewed various time and entries and found most of the line item requests for individual projects reasonable. The report praised plaintiffs’ counsel for using one paralegal to do the vast majority of document review and found no excessive billing in that regard. However, there were a few reductions, for example two entries for discussions had by one attorney were too vague because they did not identify with whom he spoke. In the end, the special master recommended a 15 percent reduction to the lodestar, given that the plaintiff had achieved "good—but not excellent—overall results when viewed in relation to the 3,000+ hours claimed." Objections overruled and fees awarded. The recommended award totaled $1,186,307 in attorneys’ fees, $20,569 in statutory costs, $145,972 in non-statutory litigation expenses, and $50,717 for "fees on fees" (work done on the fee application). Adopting these totals in its order, the court overruled all of the defendants’ objections to the special master’s report and recommendation, which was adopted with one modification (clarifying that the stay of payment pending exhaustion of any appeal does not affect any rights to appeal). While the defendants argued that a further reduction was warranted because the success achieved was limited as compared to the scope of the litigation, the court found that the 15 percent reduction suggested by the special master was reasonable and reflected that the plaintiff obtained "make-whole equitable relief" but not "broad systemic reforms." Also rejected was the defendants’ assertion that the unsuccessful due process claims were not related to the Title VII claim. To the contrary, prior orders on the Title VII claim made specific findings as to the process provided to the plaintiff, including that the defendants did not individually assess the plaintiff’s application or weigh all relevant factors.

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