Hossain v. Job Service North Dakota

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
Md Shakhawat Hossain, 	)
)
Plaintiff, 	) 	ORDER GRANTING DEFENDANT’S
) 	MOTION FOR SUMMARY
vs. 	) 	JUDGMENT
)
Job Service North Dakota, 	) 	Case No. 1:20-cv-009
)
Defendant. 	)
Before the Court is a Motion for Summary Judgment filed by Job Service North Dakota
(“JSND”) on August 27, 2021. (Doc. No. 49). For the reasons that follow, the motion is granted.
I. 	BACKGROUND
Hossain is a native of Bangladesh. (Doc. No. 4 at p. 11). He was in the United States on an
F-1 Visa for most if not all of the time relevant to this action. An F-1 Visa allows nonimmigrants
to enter the United States as full time students at accredited universities authorized by the United
States to accept international students. U.S. Citizenship and Immigration Services (“USCIS”), F1
Student Visa, https://www.uscis.gov/ working-in-the-united-states/students-and-exchange-visitors
/students-and- employment (last visited March 28, 2023).
Hossain was enrolled at the North Dakota State University (“NDSU”) from August 19, 2015,
until May 31, 2017, when he graduated with a master’s degree in computer science. (Doc. No. 51-
1). Upon graduating, he applied and was approved for Optional Practical Training (“OPT”).
OPT allows nonimmigrant students who are studying or have graduated to temporarily work
in their major field of study for an employer in the United States. 8 C.F.R. §§ 274a.12(c)(1)(3) and
214.2(f)(10)(ii). Students in any field can secure “post-completion” OPT for up to 12 months. 8
1
Case 1:20-cv-00009-CRH Document 56 Filed 04/11/23 Page 1 of 41

C.F.R. 214.2(f)(10)(ii)(A)(3). Students with a degree in science, technology, engineering, or math
may get a two year “STEM extension” for total of 36 months provided they meet certain
qualifications. 8 C.F.R. § 214.2(f)(10)(ii)(C). For example, they must work for an employer that is
enrolled in E–Verify and remains a participant in good standing with E–Verify. 	8 C.F.R. §
214.2(f)(10)(ii)(C)(5).
E-Verify, authorized by the Illegal Immigration Reform and Immigrant Responsibility Act
of 1996, is a web-based system through which employers can electronically confirm an employee’s
work authorization status. 	Chamber of Com. of U.S. v. Whiting, 563 U.S. 582, 590 (2011).
Participation in the E-Verify program is voluntary at the national level. 	Id. at 627 (J. Breyer,
dissent); see also Arizona Contractors Ass'n., Inc. v. Napolitano, No. CV07-1355PHXNVNW, 2007
WL 4570303, at *14 (D. Ariz. Dec. 21, 2007). Some states require E-Verify for some or all of their
employers. See USCIS, E-Verify Mandatory States, https://www.e-verify.gov/about-e-verify/
history-and-milestones (last visited March 28, 2023). North Dakota is not one of them.
Hossain was hired by and began working for JSND as a Programmer Analyst on July 7,
2017. (Doc. No. 41-2). At the outset of his employment, he presented Form I-766, an employment
authorization document, to establish his identity and eligibility to work in the United States. (Id.).
Verification of his employment eligibility was documented on Form I-9. (Id.). 	On his Form I-9,
Hossain attested that he was authorized to work until June 26, 2018. (Id.).
On February 9, 2018, Hossain sent the following instant message to Jason Sutheimer
(“Sutheimer”), JSND’s Human Resource Manager:
i know job service enrolled in to E -verify programme.What was the Zipcode used
for 5806 and 5801?
(Doc. No. 51-6) (errors in original). Sutheimer responded:
2
Case 1:20-cv-00009-CRH Document 56 Filed 04/11/23 Page 2 of 41

I’m not sure that JSND is enrolled in E-Verify. I say this because when at NDDOT
we were not allowed to do that because HRMS had to do so, and the refused because
of a few requirements.
* * *
I can definitely check on that for sure though and let you know.
***
if we did, I think it would be 58501 (HRMS’s zip)
***
I will check for sure
(Id.) (errors in original).
Hossain was apparently operating under the mistaken belief that JSND was an E-Verify
employer as it was listed on the Department of Homeland Security’s (“DHS”) website. (Doc. No.
51-17 at ¶ 6). According to Sutheimer, JSND was not an E-Verify Employer but rather an E-Verify
Employer Agent and was listed as such on the DHS’s website. (Id.). This distinction, though small,
was significant. As an E-Verify Employer Agent, JSND was authorized to provide the service of
verifying employees as a third party to clients (employers) through the use of E-Verify. See USCIS,
Supplemental Guide for Web Service Users, https://www.e-verify-gov/supplemental-guide-for-web-
services-users/10-introduction (last visited March 28, 2023). However, it was not itself an E-Verify
Employer. Consequently, employment with it could not be used to obtain a “STEM Extension.”
On February 27, 2018, Connie Johnson, a JSND Human Resource Officer, emailed Hossain
to remind him that his employment authorization was expiring in approximately four months.
This email is to follow up on the notation of the Employment Eligibility Verification
(I-9) form that is part of the new hire orientation process. That notation indicates an
expiration date of 6/26/2018 on form I-766 in regard to the authorization to work.
3
Case 1:20-cv-00009-CRH Document 56 Filed 04/11/23 Page 3 of 41

We know that sometimes acquiring information from various agencies can take time;
therefore, HR is providing this notification in advance of the expiration date.
Shakawwat, if you could reply to this email with the status of acquiring a new
document with an extended authorization to work date, that would be greatly
appreciated.
(Doc. No. 41-3).
JSND considered enrolling in E-Verify as an employer in order to assist Hossain with his
expiring employment authorization. According to Sutheimer, he “met with numerous officials to
determine if JSND should proceed with obtaining an E-Verify Employer account” as it was his
“understanding that an E-Verify [Employer] account was required for the [Hossain] to be able to
extend his work authorization pursuant to the STEM OPT program.” (Doc. No. 51-17 at ¶ 7). After
some discussion, Human Resources started the process of enrolling in E-Verify as an employer.
(Id.). JSND later reversed course for reasons discussed below and withdrew from the enrollment
process prior to its completion. (Id.).
In the interim, Hossain periodically contacted Sutheimer for updates regarding JSND’s
enrollment in E-Verify. On April 13, 2018, Sutheimer advised Hossain that he had contacted the
Director of Human Resource Management Services (“HRMS”), which in turn had advised that it
would reach out to the Office of Management and Budget’s Director and Payroll Manager to “see
where things were at.” (Doc. No. 51-12 at p. 2). On May 1, 2018, Sutheimer advised Hossain that
he was waiting to hear back from HRMS and could not make any guarantees. (Id. at pp. 4-5). When
asked by Hossain what would happen if his employment authorization expired prior to JSND’s
enrollment in E-Verify, Sutheimer responded that “we have to terminate your employment until your
authorization is renewed” but that “[I]’m hopeful that we can get it resolved before that happens”
and “[t]hat’s why I’ve been pushing to see if HRMS can get something done for us.” (Id.). On May
4
Case 1:20-cv-00009-CRH Document 56 Filed 04/11/23 Page 4 of 41

9, 2018, Sutheimer advised Hossain that there was nothing new to report as he had yet to hear back
from HRMS. (Id. at pp. 8-9).
On May 11, 2018, Hossain filed an application for asylum with USCIS. (Doc. Nos. 4 at p.
7; 51-17 at p. 8). According to Hossain, he contacted USCIS to apply for asylum because he “felt
My Supervisor and some co-workers are deliberately wanting to send me back to my national origin
although I had right to work at Job service North Dakota.” (Doc. No. 4 at p. 7).
On May 23, 2018, Hossain’s supervisor, Amy Shawver-Morman (“Shawver-Morman”),
contacted Sutheimer to inquire about the status of Hossain’s employment authorization. (Doc. No.
51-2).
On June 11, 2018, Sutheimer messaged Hossain to advise that he was “working on getting
E-Verify set up” and to inquire about Hossain’s documentation. (Doc. No. 15-12). On June 12,
2018, he informed Hossain that he had applied for an E-Verify account. 	(Doc. No. 51-5). 	In
addition, he sent Hossain a copy of “The E-Verify Memorandum of Understanding for Employers”
that he had signed electronically on June 11, 2018. (Id.).
As of June 14, 2018, Sutheimer was still working with Hossain to complete the necessary
paperwork and enrollment process in E-Verify. (Doc. No. 51-12, pp. 13-14). On or about June 14,
2018, Hossain presented to JSND an 1-20 Certificate of Eligibility for Nonimmigrant Student Status
authorizing a “STEM extension” from June 27, 2018, through June 26, 2020. (Doc. No. 51-1). 1
The following appears to have occurred on or around June 18, 2020.
• 	Hossain arranged to twice meet with Sutheimer. (Doc. No. 51-12 at pp. 16-17).
• 	Shawver-Morman reached out to a former JSND employee, Anjani Adususmilli, who
1 The I-20 was signed by a designated school official on June 14, 2018, and by Hossain on June 17, 2018.
(Doc. No. 51-1).
5
Case 1:20-cv-00009-CRH Document 56 Filed 04/11/23 Page 5 of 41

had faced similar work authorization issues as Hossain for advice and assistance
regarding Hossain’s situation and to otherwise inquire who he retained as legal
counsel. (Doc. No. 51-17 at p. 5-6). Shawver-Morman sent the following email to
Sutheimer to advise him of her efforts.
Subject: Maruf
I just got off the phone with Anjani to have him find the name and
contact information of the attorney he used for his immigration stuff.
He was thinking that he might be willing to do a free consult.
Maybe. I’m thinking it may just be quicker to call this guy and see
if he’s willing to talk to us, as he would be an expert on immigration,
to see if he can at least lay out what options we have. Thoughts?
(Doc. No. 51-3 at p. 4).
• 	JSND Deputy Director Darren Bostrom (“Brostrom”) and JSND Executive Director
Michelle Krommer (“Krommer”) met to discuss a request from Human Resources
to enroll in E-Verify to assist an employee, presumably Hossain (Id. at ¶ 6). At this
meeting the decision was made not to enroll in E-Verify “due to the requirements
and liabilities with E-Verify which includes a change in I-9 procedures, the agency’s
liability associated with reporting I-9 information, known system issues with E-
Verify, and Ms. Krommer’s direct experience with utilizing E-Verify prior to
employment with JSND.” (Id.). Bostrom passed this information on to Sutheimer
along with the directive that he stop the E-Verify enrollment process. (Id. at ¶ 7).
On June 19, 2018, Sutheimer notified Hossain of JSND’s decision to withdraw from the E-
Verify enrollment process. (Doc. No. 51-17 at ¶ 7). He also spoke with Hossain’s designated school
officer at NDSU to discuss Hossain’s options. (Doc. No. 51-3).
On June 20, 2018, Suthheimer apparently met with Hossain to discuss his options going
6
Case 1:20-cv-00009-CRH Document 56 Filed 04/11/23 Page 6 of 41

forward. 	(Doc. No. 51-16 at ¶ 9). 	That same day JSND gave Hossain notice of his proposed
termination, explaining that federal law prohibited him from working at JSND once his work
authorization expired and that his employment with JSND would therefore terminate effective June
26, 2018, unless he could provide proof of his eligibility to work in the United States. (Doc. No. 41-
4). 	Hossain acknowledged receipt of this notice and later sent an email to Shawver-Morman,
expressing his gratitude for the “wonderful oppportunity here at Job Service” and requesting to “use
the rest of the 6 days as [his] paid holiday.” (Doc. Nos. 41-4 and 51-11).
On June 21, 2018, Hossain sent the following email to Krommer, requesting that JSND
reconsider its position with respect to E-Verify.
I have been working with Job Service North Dakota for last 11 months under
Employment Authorization in web team as a Programmer Analyst III. I has been
working with Amy Shawver and Jason Suthheimer regarding extending my work
authorization as Job service North Dakota is enrolled into E-Verify programme.
They have been very helpful regarding this issue and they also worked with my
school DSO regarding issuing my I-20s from Department of Homeland Security,
which I needed to mail it back to USCIS in order to issue my work Authorization
extension. But, after issuing all of the papers and being helpful Jason Sutheimer told
me on 19th June that Executive Director have decided to cancel the enrollment from
E-verify. 	As for issuing I-20s, E-verify enrollment is necessary, I-20s had been
issued and Jason gave E-verify number to my School DSO, we had been a E-verify
employer before 19th June. As part of federal law requirement, as my current EAD
card is Expiring, my I-20s along with other papers need to be at USCIS before 26th
June. I am in a real frustrating situation right now. Can you please consider the
scenario and issues about enrolling into E-verify so that I can still send my papers
to USCIS office and be part of team Job Service.
(Doc. No. 51-12 at p. 21) (errors in original). Hossain apparently met with Sutheimer and Shawver-
Morman shortly after sending the aforementioned email. (Doc. No. 51-12 at p. 22). Following this
meeting, Sutheimer followed up with Brostrom, advising that he, Shawver-Morman, and Hossain
had discussed Hossain’s aforementioned email to Krommer and why JSND had decided not to enroll
as an E-Verify Employer. (Id.). He further advised Brostrom that Hossain had “stated that he is
7
Case 1:20-cv-00009-CRH Document 56 Filed 04/11/23 Page 7 of 41

resigning today, to focus his efforts on finding another E-Verify employer prior to losing his work
authorization.” (Id.).
On June 21, 2018, Hossain submitted the following letter of resignation:
It's been my pleasure to be part of team Job service for almost a year working as
Programmer Analyst III at web team. I have been working under Employment
Authorization Card which has a validation date 26th June of 2018. In order to extend
my work Authorization Job Service North Dakota needed to be enrolled into e-verify
System again. 	I have been working with Amy Shawver, my supervisor and HR
Director Jason Sutheimer regarding extending my work authorization as Job service
North Dakota had been enrolled into E -verify programme. They have been very
helpful regarding that issue and they also worked with my school DSO regarding
issuing my l-20s from Department of Homeland Security, which I needed to mail it
back to USCIS to issue my work Authorization extension . But, after issuing all of
papers and being helpful Jason Sutheimer officially informed me on 19th June that
Executive Directors have decided to cancel the enrollment from E-verify. As for
issuing l-20s, E-verify number and E-verify enrollment is necessary, l-20s had been
issued and Jason Sutheimer gave E-verify number to my School DSO, Job Service
had been a Everify employer before 19th June. As part of federal law requirement,
I need an employer who is currently enrolled into e-verify and work is related with
Information Technology to extend my work authorization. In order to try my best to
find an e-verified IT company before 26th , I need to spent more time on Job
Searching. That's why, I would not be able to work here anymore. It has been
wonderful to be part of team Job Service.
(Doc. No. 41-5) (errors in original). JSND accepted Hossain’s resignation effective at 5:00 PM on
June 21, 2018. (Doc. No. 51-9).
JSND apparently began soliciting applications for Hossain’s position about a month after his
departure. 	(Doc. No. 51-4). Put another way, it waited for about a month before it tried to fill
Hossain’s vacated position. (Id.). 	It filled the position in October 18, 2018, with an individual of
a different race, religion, color, and national origin than Hossain. (Doc. No. 4 at p. 11).
Hossain obtained a new work authorization. (Doc. No. 51-13 at pp. 56-57). 	According to
an email sent by Hossain to Brenda Halvorson, an employee of the North Dakota Department of
Labor and Human Rights, on April 17, 2019, he received his work authorization sometime in March
8
Case 1:20-cv-00009-CRH Document 56 Filed 04/11/23 Page 8 of 41

2019. (Doc. No. 51-4 at p. 2).
Hossain at some point unsuccessfully applied for an open position at the North Dakota
Attorney General’s office. (Doc. No. 4 at p. 10). He apparently reached out to JSND in February
2019 to inquire about his reinstatement to the position from which he had previously resigned. 2
In April 2019, Hossain filed a Charge of Discrimination with the North Dakota Department
of Labor and Human Rights, alleging:
During my employment [with JSND], I was subjected to hostile working
environment 	harassment, 	based 	on 	my 	color/Brown, 	race/Asian, 	national
origin/Bangladesh, sex/Male, religion/Islam, marital status/Single (state only),
Lawful Activity (building a personal relationship outside of the workplace) (state
only) an din retaliation for participating in protected activity (reporting harassment
to Homeland Security). Some examples are:
• Some of my female coworkers, Amy Carlson and Connie Johnson, as well
as my Supervisor Amy Shawver, approached me for the prospect of
marriage. They felt I should be married to one of my female coworkers. I
felt this was harassment based on my sex and marital status. I also felt this
was harassment based on my lawful activity outside of the workplace, in
that, I was attempting to build a personal relationship outside of my
workplace, and my coworkers and supervisor knew about it and tried to get
me to marry someone in the workplace.
• In May 2018, Amy Shawver approached me in the parking lot and asked
me when I as going to get married. (Based on marital status).
• Amy Shawver and Mathwitch Tyler (coworkers) tried to instill fear in my
by telling me about previous coworkers who were discharged from their
employment (Based on race, national origin, color, and religion.)
• Mathwitch Taylor asked me, “So, a master’s degreee holder like you is not
going to throw a bond [are you]?” (Based on race, national origin, color,
and religion.)
• Amy Shawver told me in a passive aggressive manner that, I was not able
2 Hossain states in his complaint that he called Jason Suthheimer in February 2019 after getting a new
Employment Authorization Document. (Doc. No. 4 at p. 10). In his April 17, 2019 email to Halvorson, he states that
he called JSND the first week in March to inform it that he had obtained work authorization. (Doc. No. 51-4 at pp 2-3).
9
Case 1:20-cv-00009-CRH Document 56 Filed 04/11/23 Page 9 of 41

to manage my daily meal in my country (Bangladesh), and now in the
United States of America I was able to get some food, have a job, even get
a salary, so what more should I expect? (Based on race and national
origin.)
• Rumors were going around the workplace that I was going to sue
somebody. Karla Duray, team member, tried to point out these rumors,
using the phrase, “these days even a port start is suing our presidence,”
suggesting that an Asian suing a Caucasion is not a big deal. (Based on
race.).
On May 11, 2018, I contacted Homeland Security and applied for political asylum.
In my Asylum Application, I reported the harassment I was experiencing in my
workplace. The Respondent had access and knowledge of my report, as I kept a
copy of it on my work computer.
On June 20, 2019, I was discharged from my employment. The Respondent stated
it could no longer employ me, because it was not an “E-Verify” employer. I was
forced to sign discharge papers. I believe I was discharged based on my color, race,
national origin, sex, religion, marital status, lawful activity, and/or in retaliation for
participating in a protected activity (reporting discrimination to Homeland Security).
I believe I have been discriminated and retaliated against in violation of the North
Dakota Human Rights Act (N.D.C.C. ch. I 4-02.4) as amended, and Title II of the
Civil Rights Act of 1964, as amended.
(Doc. No 41-6) (errors in original). 3
The North Dakota Labor Department subsequently transferred Hossain’s Charge of
Discrimination to the Equal Employment Opportunity Commission (“EEOC”). (Doc. No. 41-8).
It advised Hossain of this transfer in a letter dated June 28, 2019. (Id.).
The EEOC dismissed Hossain’s claims against JSND. (Doc. No. 41-09). In a “Dismissal
3 Hossain has filed charges of discrimination against others. In his answers to JSND’s interrogatories, Hossain
advised that he filed a charge of discrimination with the EEOC against General Motors on the grounds that General
Motors had discriminated against him on the basis of his race, religion, and national origin and had terminated his brief
employment in its innovation center in Roswell, Georgia, on June 30, 2020, “as a retaliation for this lawsuit Hossain vs.
Job Service North Dakota.” (Doc. No. 51-13 at pp. 7 and 9). He further advised that he filed charges of discrimination
against USM Business Systems, J&P Cycles, and JC Penney. (Doc. No. 51-13 at p. 8). It is not clear from his
interrogatory answers when, with whom, or why he filed these charges, however. (Id.).
10
Case 1:20-cv-00009-CRH Document 56 Filed 04/11/23 Page 10 of 41

a Notice of Rights” dated October 28, 2019, it advised that the information it had obtained during
its investigation did not establish any statutory violations by JSND (Doc. No. 41-9). It further
advised Hossain of his right to sue under Title VII. (Id).
Hossain initiated the above-captioned pro se and in forma pauperis on January 27, 2020,
claiming that he was subjected to harassment, discrimination, and retaliation in violation of the
North Dakota Human Rights Act (“NDHRA”), the Immigration Reform and Control Act, and Title
VII of the Civil Rights Act. (Doc. Nos. 1, 3, 4). For support, he reiterated the allegations contained
in the Charge of Discrimination. Additionally, he cited his coworkers’s conversations regarding
marriage, politics, and Colorado’s legalization of marijuana, and documents that he received in his
mailbox, 4 asserting they were particularly distressing as he “believed they were trying to relate to
something from my national origin.” (Doc. No. 4). JSND filed its answer on April 13, 2020. (Doc.
No. 16). The parties filed notices of their consent to the magistrate judge’s exercise of jurisdiction
in March 2020. (Doc. Nos. 14-15).
JSND filed a Motion for Summary Judgment on August 27, 2021. (Doc. No. 49). Hossain
filed a response to JSND’s motion on September 21, 2021. (Doc. No. 52). 5 JSND filed a reply in
support of its motion on October 5, 2021. (Doc. No. 55). Consequently, its motion is ripe for the
court’s consideration.
4 Hossain’s complaint alleges: “I received some documents in my mailbox that has something to do with
roughly similar to that ‘internet access at home will be monitored.” I believe that letter was sent to me for my national
origin.” (Doc. No. 4 at p. 6).
5 Hossain’s response does not meet the requirements of this court’s local rules regarding the “form of papers.”
Local 5.1(B) provides in relevant part that briefs must be typeset with a 12-point font or larger and must be double
spaced. See D.N.D. Civ. L.R. 5.1(B). Hossain’s response is typeset with a 9-point font and is single spaced.
11
Case 1:20-cv-00009-CRH Document 56 Filed 04/11/23 Page 11 of 41

II. 	STANDARD OF REVIEW
Summary judgment is appropriate when the evidence, viewed in a light most favorable to
the non-moving party, indicates that no genuine issues of material fact exist and that the moving
party is entitled to judgment as a matter of law. Davison v. City of Minneapolis, 490 F.3d 648, 654
(8th Cir. 2007); see Fed. R. Civ. P. 56(a). Summary judgment is not appropriate if there are factual
disputes that may affect the outcome of the case under the applicable substantive law. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is genuine if the evidence
would allow a reasonable jury to return a verdict for the non-moving party. Id. The purpose of
summary judgment is to assess the evidence and determine if a trial is genuinely necessary.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
The Court must inquire whether the evidence presents a sufficient disagreement to require
the submission of the case to a jury or whether the evidence is so one-sided that one party must
prevail as a matter of law. Diesel Mach., Inc. v. B.R. Lee Indus., Inc., 418 F.3d 820, 832 (8th Cir.
2005). The moving party bears the responsibility of informing the court of the basis for the motion
and identifying the portions of the record which demonstrate the absence of a genuine issue of
material fact. Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011). The non-moving
party may not rely merely on allegations or denials in its own pleading; rather, its response must set
out specific facts showing a genuine issue for trial. Id.; Fed. R. Civ. P. 56(c)(1). 	“The mere
existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there
must be evidence on which the jury could reasonably find for the plaintiff.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 252 (1986). If the record taken as a whole and viewed in a light most
favorable to the non-moving party could not lead a rational trier of fact to find for the non-moving
12
Case 1:20-cv-00009-CRH Document 56 Filed 04/11/23 Page 12 of 41

party, there is no genuine issue for trial and summary judgment is appropriate. Matsushita, 475 U.S.
at 587.
III. 	DISCUSSION
A. 	Hossain’s Federal Claims
1. 	Immigration Reform and Control Act (“IRCA”)
IRCA prohibits employment discrimination on the basis of citizenship status, a proscription
not encompassed by other anti-discrimination statutes. 8 U.S.C. § 1324b(1); Gen. Dynamics Corp.
v. United States, 49 F.3d 1384, 1385 (9th Cir.1995). It also prohibits discrimination on the basis of
national origin to the extent that the alleged discrimination is not already covered by Title VII. 	8
U.S.C. §§ 1324b(a)(1) (stating the general rule) and 1324b(1)(2) (identifying three exceptions to the
general rule).
JSND asserts that, as a state agency or department, is has Eleventh Amendment immunity
from suit under IRCA. See N.D.C.C. § 32-12.2-01(7); see also Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 100 (1984) (holding that “in the absence of consent a suit in which the
State or one of its agencies or departments is named as the defendant is proscribed by the Eleventh
Amendment”). It further asserts that, the issue of sovereign immunity, IRCA does not apply in this
instance as Hossain’s claim of national origin discrimination is already covered by Title VII.
The Eleventh Amendment prohibits suits “in law or equity, commenced or prosecuted
against one of the United States by Citizens of another State, or by Citizens or Subjects of any
Foreign State.” 	U.S. Const. amend. XI. 	The Supreme Court has construed this articulation of
immunity as establishing that “an unconsenting State is immune from suits brought in federal courts
by her own citizens as well as by citizens of another state.” 	Port Auth. Trans–Hudson Corp. v.
13
Case 1:20-cv-00009-CRH Document 56 Filed 04/11/23 Page 13 of 41

Feeney, 495 U.S. at 300 (citations and internal quotation marks omitted). This bar to suit is not
absolute, however. A state may voluntarily waive its immunity and consent to suit in federal court.
See Edelman v. Jordan, 415 U.S. at 673, 94 S.Ct. 1347. 	In certain cases, Congress may also
abrogate Eleventh Amendment immunity. See Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976). For
example, “[w]hen providing funds from the federal purse, Congress may require as a condition of
accepting those funds that a state agree to waive its sovereign immunity from suit in federal court.”
Garcia v. S.U.N.Y. Health Scis. Ctr. of Brooklyn, 280 F.3d 98, 113 (2d Cir. 2001) (citing Coll. Sav.
Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 686-87 (1999); South Dakota
v. Dole, 483 U.S. 203, 207 (1987). 	However, to abrogate the state's immunity, Congress must
“unequivocally express[ ] its intent to abrogate the immunity.” Green v. Mansour, 474 U.S. 64, 68
(1985); see also Hensel v. Off. of Chief Admin. Hearing Officer, 38 F.3d 505, 508 (10th Cir. 1994)
(“In order for the state to be subject to suit, Congress must have made its intention unmistakably
clear in the language of the statute.”) (internal quotation marks omitted).
Hossain asserts that JSND has generally waived its sovereign immunity because it has
accepted federal funds. However, given the explicitness Congress has employed with respect to
other statutes, Hossain has not shown that Congress unequivocally intended to abrogate the Eleventh
Amendment in IRCA. See Hensel, 38 F.3d at 508; see also Fitzpatrick, 427 U.S. at 449 n. 2. In
contrast to, Title VII, which defines the term “person” to include governments, governmental
agencies, political subdivisions and the term “employee” includes individuals subject to the civil
service laws of a State government, governmental agency or political subdivision. See 42 U.S.C.A.
§ 2000e(a) and (f). The Age Discrimination in Employment Act, which defines an “employer” to
include a State or any agency of a State. See 29 U.S.C.A. § 630. IRCA is devoid of any textual
14
Case 1:20-cv-00009-CRH Document 56 Filed 04/11/23 Page 14 of 41

support by definition or reference for the proposition that a “person” or “entity” includes the State.
Absent explicit language, the court cannot find that IRCA was intended to subject the state to suit
in federal court. See Hensel, 38 F.3d 505, 508.
“Furthermore, the Eleventh Amendment itself is not mentioned in the IRCA.” Id.
(contrasting IRCA to the Americans with Disabilities Act, which explicitly abrogrates Eleventh
Amendment immunity). Absent textual support, this court “cannot conclude that Congress intended
to abrogate Eleventh Amendment immunity in the IRCA.” Id.
Even if the court were to conclude that IRCA abrogated Eleventh Amendment immunity,
IRCA has no application to the matter in dispute. As noted above, IRCA prohibits discrimination
on the basis of national origin to the extent that it not already covered by Title VII. JSND is covered
by Title VII and therefore subject to the Title VII. 42 U.S.C.A. § 2000e(a) and (f); Okruhlik v.
Univ. of Arkansas ex rel. May, 255 F.3d 615, 627 (8th Cir. 2001) (holding that Title VII validly
abrogated the States' Eleventh Amendment immunity); Hossain’s IRCA claim is therefore dismissed.
The court shall now turn to the Hossain’s Title VII claims.
2. 	Title VII
Title VII prohibits employment discrimination on the basis of race, color, religion, sex, or
national origin. 42 U.S.C.A. § 2000e-2(a). A plaintiff may establish of violation of Title VII either
through direct or indirect evidence. See Arraleh v. Cnty. of Ramsey, 461 F.3d 967, 974 (8th Cir.
2006). “Direct evidence is evidence that establishes a specific link between the alleged
discriminatory animus and the challenged decision, sufficient to support a finding by a reasonable
fact finder that an illegitimate criterion actually motivated the employer's decision.” Twymon v.
Wells Fargo & Co., 462 F.3d 925, 933 (8th Cir. 2006) (internal quotation marks and alterations
15
Case 1:20-cv-00009-CRH Document 56 Filed 04/11/23 Page 15 of 41

omitted); see also Griffith v. City of Des Moines, 387 F.3d 733, 736 (8th Cir. 2004) (“‘[D]irect’
refers to the causal strength of the proof, not whether it is ‘circumstantial’ evidence.”). “Direct
evidence does not include stray remarks in the workplace, statements by nondecisionmakers, or
statements by decisionmakers unrelated to the decisional process itself.” Id. (internal quotation
marks and alterations omitted); see also Sellars v. CRST Expedited, Inc., 13 F.4th 681, 693 (8th Cir.
2021). Indirect evidence is other evidence that creates the inference of unlawful discrimination. See
Arraleh v. Cnty. of Ramsey, 461 F.3d at 	974. 	“Circumstances giving rise to an inference of
discrimination include treating similarly situated employees who are not members of the protected
class in a different manner.” Gibson v. Am. Greetings Corp., 670 F.3d 844, 853-54 (8th Cir. 2012).
To assess Title VII claims based upon indirect evidence of discrimination, courts employ the
framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–03. 	Under this
framework, a plaintiff has the initial burden of establishing a prima facie case of discrimination. See
Gibson, 670 F.3d at 853.
To establish a prima facie case for failure to hire, a plaintiff must demonstrate: (1) he is a
member of a protected class; (2) he was qualified for the position for which the employer was
accepting applications; (3) he was denied the position; and (4) the employer hired someone from
outside the protected class. Arraleh v. Cnty. of Ramsey, 461 F.3d 967, 975 (8th Cir. 2006). To
establish a prima face case of discrimination on the basis of race, color, religion, sex, or national
origin, a plaintiff must demonstrate: (1) he is a member of a protected class; (2) he was meeting his
employer’s legitimate job expectations; (3) he suffered an adverse employment action; and (4) the
circumstances give rise to an inference of discrimination. See Gibson v. Concrete Equip. Co., Inc.,
960 F.3d 1057, 1062 (8th Cir. 2020) (sex discrimination); Shirrell v. St. Francis Med. Ctr., 793 F.3d
16
Case 1:20-cv-00009-CRH Document 56 Filed 04/11/23 Page 16 of 41

881, 887 (8th Cir. 2015) (religious discrimination); Guimaraes v. SuperValu, Inc., 674 F.3d 962,
973–74 (8th Cir. 2012) (national origin discrimination); Gibson v. Am. Greetings Corp., 670 F.3d
844, 853-54 (8th Cir. 2012) (race discrimination). To establish a prima facie case of hostile work
environment, a plaintiff must show: (1) he is a member of a protected group; (2) he was subjected
to unwelcome harassment; (3) the harassment was based on a protected characteristic, in this case,
on her race, sex, national original and religion; and (4) the harassment affected a term, condition,
or privilege of employment. See Soto v. John Morrell & Co., 285 F. Supp. 2d 1146, 1167 (N.D.
Iowa 2003) (citing Beard v. Flying J. Inc., 266 F.3d 792, 797 (8th Cir. 2001)); see also Carter v.
Chrysler Corp., 173 F.3d 693, 700 (8th Cir. 1999). “Where the harassment was at the hands of a
co-worker, and not a supervisor, the prima facie case includes a fifth element requiring the plaintiff
to show that the employer knew or should have known of the harassment, but failed to take proper
remedial action.” Soto, 285 F. Supp. 2d at 1167 (citing Stuart v. General Motors Corp., 217 F.3d
621, 631 (8th Cir. 2000)). To establish a prima facie case of retaliatory discrimination, a plaintiff
must show: (1) he engaged in protected activity; (2) an adverse employment was taken against him;
and (3) there was a causal connection between the two. See Brower v. Runyon, 178 F.3d 1002, 1005
(8th Cir. 1999). The burden of establishing a prima facie case is not onerous. Texas Dep't of Cmty.
Affs. v. Burdine, 450 U.S. 248, 253 (1981). Nevertheless, a failure to establish even one element
of a prima facie case defeats a Title VII discrimination claim. Tatum v. City of Berkeley, 408 F.3d
543, 550–51 (8th Cir. 2005).
If the plaintiff establishes a prima facie case of discrimination, the burden of production then
shifts to the employer to articulate a legitimate, non-discriminatory reason for its action. See id.
If the employer makes such a showing, the burden shifts back to the plaintiff, who must then
17
Case 1:20-cv-00009-CRH Document 56 Filed 04/11/23 Page 17 of 41

demonstrate by a preponderance of the evidence that the defendant’s proffered non-discriminatory
reason was pretextual. See id. “The plaintiff may prove pretext by ‘adducing enough admissible
evidence to raise genuine doubt as to the legitimacy of [the defendant's motive].’” Id. (quoting
Anderson v. Durham D & M, L.L.C., 606 F.3d 513, 521 (8th Cir. 2010)).
a. 	Failure to Hire
Hossain’s first Title VII claim pertains to JSND’s failure to rehire him. (Doc. No. 4). His
complaint alleges:
30. I applied for another state position . . . at Attorney General office, State of North
Dakota, I mentioned job service North Dakota as a reference and previously
employer, I believe job service North Dakota informed them advsersely against me
so that I cannot get this role.
31. In February 2019, after getting new Employment Authorization Document, I
made phone call to HR Jason Sutheimer and after not getting any response I
informed Ms. Shelley at North Dakota Governor office that I currently have another
employment Authorization document although they already rejected a valid I-9
document previously and it does not require e-verify. I believe Ms Shelley informed
Job service about my situation, but they refused to rehire me based on their words
they gave me regarding possible reinstatement. That slight hope I had based on the
words Amy Shawver and Jason Sutheimer uttered before me asking me resignation
was also gone and I felt empty and tricked.
(Doc. No. 4 at p. 10) (errors in original).
JSND asserts that, based on the facts alleged, Hossain has failed to state a prima facie case
for a failure to hire by virtue of the fact that he cannot establish as a threshold matter that he was
denied a position. The court agrees.
It is clear from the record that, following his resignation, Hossain did not apply for an open
position at JSND. It therefore follows that JSND did not deny him a position and that Hossain has
not stated a prima face case with respect to this failure to hire claim.
When Hossain resigned, JSND had no way of knowing when he would obtain another
18
Case 1:20-cv-00009-CRH Document 56 Filed 04/11/23 Page 18 of 41

employment authorization document much less if he would obtain such a document. After Hossain
resigned, it apparently took JSND three months to fill his position. Hossain had no apparent contact
with JSND during this time span. Hossain did contact JSND in February 2019, to advise that he had
obtained the necessary authorization to commence working in the United States and to otherwise
express his interest in re-employment at JSND despite all of the harassment to which he had
allegedly been subjected to prior to his resignation. His act of contacting JSND to advise of his
willingness and ability to return work is not akin to submitting an application. Even if it could, there
is no dispute that JSND had no open position for which Hossain could apply.
Hossain maintains that during his June 21, 2018, meeting with Shawver-Morman and
Sutheimer, he was encouraged to resign with the understanding that he could be reinstated at a later
date if his asylum application was approved or he otherwise obtained employment authorization.
Specifically, he asserts:
Jason Sutheimer told plaintiff that Michelle Kommer got back to him or them and
do things in a proper way and explained to plaintiff that give defendant or them a
resignation letter., it will appear as an “R” instead of “T” on plaintiff’s record, as that
could be detrimental for plaintiff for his employment at Job service North Dakota or
at another potential Employer. Plaintiff raised other points for not to resign,. As the
arguments and doubts continues, Jason Sutheimer went outside of his room and
provided plaintiff instantly printed copy of Job Service North Dakota reinstatement
policy pointing to document that even I resign it’s not going to affect plaintiff’s
future reinstatement at Job Service North Dakota or paid holidays remains same.
Resignation looks good on file as plaintiff’s attorney told them, plaintiff is eligible
for work-authorization based on your political asylum application, plaintiff can join
them after the getting the work-authorization without going through competitive
exam again. 	Amy Shawver sitting next to plain tiff stated she don’t wan to go
through the recruitment hassle until December or January of 2019 again and plaintiff
will be reinstated. As plaintiff was pushed to resign with hope of rehiring, plaintiff
reasonably considered providing resignation letter as term or agreement of getting
reinstated based on new work documents.
(Doc. No. 52) (errors in original).
19
Case 1:20-cv-00009-CRH Document 56 Filed 04/11/23 Page 19 of 41

Assuming that what Hossain is represented is true, that he was told he could be reinstated
if he obtained another employment authorization document, it does not constitute the basis for a
cognizable claim. The undisputed facts are that Hossain did not reapply and JSND did not otherwise
have an open position for him in February 2019. See Hughes v. Twenty-First Century Fox, Inc., 304
F. Supp. 3d 429, 445 (S.D.N.Y. 2018) (“failure-to-hire claim is distinguishable from other
employment discrimination claims in that it necessarily applies in most circumstances to
non-employees seeking employment positions rather than current employees. 	The relevant
employment status inquiry in a failure-to-hire claim is the status of the position an applicant is
seeking rather than the current relationship between the applicant and the would-be employer.”
(internal quotation marks omitted)). Other than Hossain’s bald assertion that he resigned on the
condition that would be reinstated at some future date, there is nothing in the record to evidence any
sort of agreement between Hossain and JSND with respect to any future employment. 	Any
expectation Hossain may have had that JSND would hold a position for him indefinitely, not
knowing if or when he would ever be able to fill it, or immediately create a new position for him
when he contacted JSND in February 2019 is unrealistic and unreasonable, and not the basis for
cognizable failure to hire claim.
Insofar as Hossain has asserted that the Attorney General’s office did not hire him because
JSND gave him a bad reference, the court makes the following observations. First, the Attorney
General’s office is not a party to this action and its hiring practices are not the subject in dispute.
Second, assuming for the moment that Hossain met the qualifications for an open position at the
Attorney General’s office, Hossain’s pleadings are devoid of any allegation that this position was
ultimately filled by someone outside a protected class. Third, Hossain’s assertion that JSND had
20
Case 1:20-cv-00009-CRH Document 56 Filed 04/11/23 Page 20 of 41

a hand in the Attorney General’s office’s decision not to hire him is conclusory, self serving, and
at this point supported only by Hossain’s suspicion. Fourth, it is not clear at this point that the
Attorney General’s office could have hired him (or that JSND could have rehired him in February
2019) as it not entirely clear that he had received authorization to work in the United States at that
point. According to an email sent by Hossain to Brenda Halvorson on April 17, 2019, Hossain had
only obtained new work authorization the previous month. (Doc. No. 51-4 at p. 2 (“After just about
one month (if I can remember correctly) Job Service north Dakota advertised for the position I
worked for. 	I got my work Authorization based on my asylum application on last month
beginning of march. before that I did not have a work authorization let alone a job.") (errors
in original, emphasis added)).
In sum, it is axiomatic that a failure to hire cannot stand when the employer had no openings
and was not hiring. Hossain’s “failure to hire” claim is therefore dismissed. The court will now
move on to a discussion of Hossain’s claim of race discrimination.
b. 	Racial Discrimination
Hossain claims that he was discriminated against and otherwise harassed because he is
Asian. (Doc. No. 4). 	As direct evidence of racial discrimination, he cites comments by coworkers,
which he described/summarized in the Charge of Discrimination filed with the North Dakota Labor
Department.(Doc. No. 4-1 at p. 3). As indirect evidence, he cites, among other things, statements
made by and treatment he received from his superiors during the hiring process through his
resignation.
As previously noted, stray remarks in the workplace, statements by nondecisionmakers, or
statements by decisionmakers unrelated to the decisional process itself are not considered direct
21
Case 1:20-cv-00009-CRH Document 56 Filed 04/11/23 Page 21 of 41

evidence of discrimination. Here, the comments at issue can fairly be characterized as such as they
are largely made by nondecisionmakers, are facially neutral and arguably innocuous, and are in no
way connected to any adverse employment decision. See e.g., Guimaraes v. SuperValue, Inc., 674
F.3d 962, 924-75 (8th Cir. 2012). 	Consequently, they do not constitute direct evidence of race
discrimination and do provide the basis for a cognizable claim of race discrimination. Utilizing
McDonnell Douglas framework, the court shall therefore move on to address what Hossain asserts
is indirect evidence of discrimination.
JSND does not dispute that Hossain is a member of a protected class or that Hossain met
its legitimate expectations while in its employ. Rather, it asserts that Hossain did not suffer an
adverse employment action for purposes of Title VII and therefore has failed to establish a prima
facie claim of race discrimination. Hossain naturally disagrees, attributing his separation from
JSND to his termination as opposed to his resignation and further asserting:
Racially charged code words may provide evidence of discriminatiory intent by
sending clear message and carrying the distinct tone of racial motivations and
implications....
Comments made by Jason sutheimer was something similar to the effect “these Eads
are for par time job” Id. Referring to plaintiff should work for part time job although
working at Job service of North Dakota on a full-time basis is clearly disparaging
“not facially or racially neutral.” These EADS “clearly referring to a class of people
could reasonably point to alienage or national origin, or minority race in USA or
both of these classes of people. 	Coupled with other comments made by Jason
Sutheimer 	and 	Other 	decision 	makes 	and 	analyzing 	under 	Espinoza, 	even
considering “EADs” referring to alienaage or citizenship status raises an inference
of discriminatory motive based on national original because of the disparaging part
of the comments wanting plaintiff to “work at part-time job. Later, Jason sutheimer
also commented during termination process that “plaintiff should work for $10/hr.
Job” . . . Overall, raises inference of discrimination based on national origin, race or
not allowing plaintiff to work there although federal and state law allows although
based on class animus.
Section A. at 5, 10, 12 ¶ 15, 32, 36, 37, 39 comments by Amy Shawver Morman,
22
Case 1:20-cv-00009-CRH Document 56 Filed 04/11/23 Page 22 of 41

plaintiff’s direct supervisor coupled with Matthwich Taylor considering under Cat’s
paw see raises inferences of discrimination based on national origin, race, color,
religion for terminating plaintiff although plaintiff had a lawful I-9 document to
continue his work at Job Service North Dakota.
(Doc. No. 52) (errors in original).
“An adverse employment action is defined as a tangible change in working conditions that
produces a material employment disadvantage, including but not limited to, termination, cuts in pay
or benefits, and changes that affect an employee's future career prospects, as well as circumstances
amounting to a constructive discharge.” Jackman v. Fifth Jud. Dist. Dep't of Corr. Servs., 728 F.3d
800, 804 (8th Cir. 2013) (further noting: “[M]inor changes in duties or working conditions, even
unpalatable or unwelcome ones, which cause no materially significant disadvantage, do not rise to
the level of an adverse employment action.” Here, it is clear from the record that Hossain resigned
his employment at JSND and therefore did not suffer an adverse employment action for purposes
of Title VII.
As discussed above, JSND was not required by federal or state law to enroll as an E-Verify
Employer. Its decision not to enroll cannot construed as adverse employment action in the context
of Title VII. To conclude otherwise would effectively mandate employer participation in e-Verify.
Apparently unable to find alternative employment with an E-Verify employer, Hossain was
unable to obtain a “STEM extension” of his OPT and his work authorization expired on June 26,
2018. Because his work authorization expired, he could no longer legally work in the United States.
Because Hossain occupied a classified position, JSND was required to issue a pre-action notice to
Hossain that advised he would be terminated on the date his employment authorization expired,
unless he could provide authorization for employment beyond that date. JSND submits that this pre-
action notice did not constitute an adverse employment action because it does not materially
23
Case 1:20-cv-00009-CRH Document 56 Filed 04/11/23 Page 23 of 41

disadvantage Hossain. 	The court agrees as this notice did not operate to terminate Hossain’s
employment but rather reminded Hossain that, absent new or additional work authorization, his
current work authorization would expire and employment with JSND would come to an end by
operation of federal law on June 26, 2018. 	Rather than simply wait for his current work
authorization to expire, Hossain resigned on his own volition.
As Hossain did not suffer an adverse employment action for purposes of Title VII, he has
not met one of the elements necessary to state a prima face claim. Consequently, his claim does not
survive summary judgment. Tatum v. City of Berkeley, 408 F.3d 543, 550–51 (8th Cir. 2005).
Even if the court were conclude to that Hossain had suffered an adverse employment action
for purposes of Title VII, Hossain’s claim would still fail on summary judgment as there is nothing
in the record from which in inference of discrimination can be inferred.
As best as the court can discern, Hossain’s indirect evidence of racial discrimination consists
of the following: (1) comments allegedly made by Suthheimer regarding employment authorization
documents or “EADS” and part time employment when exploring Hossain’s options in the summer
of 2019; (2) Shawver-Morman’s insistence during the hiring process that he submit specific I-9
documents “issued by USCIS in card form rather than which can be issued by DSO in shorter
timeframe (10-14 days) also issued by Department of Homeland Security”; and (3) differences in
how he was treated in comparison to other JSND employees. (Doc. Nos. 52 at p. 16; 51-13 at pp.
13-15). With respect to different treatment of JSND employees, he asserts: “Plaintiff was treated
differently assigning employment instructions, terms (like laptops, computer access, and mixing
with co-workers etc.) based on protected grounds as well” and that “I was not provided with a laptop
after I finished my probationary period till the end of my employment although every other team
24
Case 1:20-cv-00009-CRH Document 56 Filed 04/11/23 Page 24 of 41

member had laptops.” (Doc. Nos. 4 at p. 7, 51-13 at p. 15).
Contrary to Hossain’s assertion, comments attributed by Hossain to Sutheimer about EADS
and his work options do not create an inference of discrimination. 	Hossain was meeting with
Suthheimer to discuss his efforts to obtain another EAD and his options. Therefore, it would only
be natural that they discussed the topics of EADs and the types of employment available to him.
The suggestion that the discussion of these topics is suggestive of discriminatory intent or animus
stretches logic to its breaking point. The same can be said with respect to Shawver-Morman and the
paperwork that she required from Hossain during the hiring process. Tellingly, there is nothing in
the record to suggest that Hossain’s hiring process and the documents that JSND required was any
different than any other nonimmigrant seeking employment with JSND. 	If anything, Shawver-
Morman’s requirements of Hossain reflect the care she was taking to make sure that all i’s were
dotted and t’s crossed given the liability employers face if they hire someone without proper
authorization to work in the United States.
With respect to different treatment, the court does not understand what Plaintiff means when
stating that he “was treated differently assigning employment instructions.” To the extent that he
asserting is that he was subjected to different terms and conditions of work and was otherwise
treated differently at work account of his race, he does not articulate (or articulate in away the court
understands) how his work conditions were different than others employed by JSND beyond the fact
that his term of employment was finite by virtue of his status as a nonimmigrant student. Rather,
he provides blanket, conclusory assertions of discrimination on the basis of race.
With respect to laptops, even if he was not provided one while others were, it does not create
an inference of discrimination, particularly in light of Hossain’s references in his complaint to his
25
Case 1:20-cv-00009-CRH Document 56 Filed 04/11/23 Page 25 of 41

“work computer.” (Doc. No. 4 at p. 7). As an aside, the record reflects that Hossain was instant
messaging and emailing his supervisors regularly, evincing that he had some level of ongoing
computer access.
In the face of Hossain’s claim of discrimination, JSND has articulated a legitimate
nondiscriminatory reason for its decision not to enroll in E-Verify as an employer. As explained
to Hossain when the decision was made not to enroll, JSND determined that enrolling in E-Verify
would require it to change its I-9 procedures, affect its liability with respect to its reporting of I-9
information through E-Verify, and present a system issue known to E-Verify participants. (Doc. No.
51-12 at p. 22). Because Hossain’s work authorization was nearing its end, JSND was obligated by
N.D. Admin. Code § 4-07-19-05 to provide Hossain with a pre-action notice of what would occur
upon expiration of his work authorization.
Hossain has presented nothing that suggests that the reasons give by JSND by its decision
not to enroll in E-Verify and issuance of a pre-action letter was pretextual and that his race was a
motivating factor for anything. Rather, he asserts that “JSND determined to withdraw from already
enrolled e-verify in order to terminate plaintiff by refusing to accept plaintiff’s already issued I-9
document in possession by providing a false reason on pre-action notice and disciplined plaintiff
under N.D. Admin. Code § 04-7-19-015.” (Doc. No. 4 at p. 24) (errors in original). Clearly, Hossain
did not fully appreciate the distinction between an E-Verify Employer and an E-Verify Employer
Agent. The law is clear that JSND was not required to enroll as employer in E-Verify. The record
is clear that JSND was at no time an E-Verify Employer. As for the pre-action letter, it was issued
in accordance with the state’s administrative code.
26
Case 1:20-cv-00009-CRH Document 56 Filed 04/11/23 Page 26 of 41

c. 	Color Discrimination
“Color discrimination arises when the particular hue of the plaintiff's skin is the cause of the
discrimination, such as in the case where a dark-colored African–American individual is
discriminated against in favor of a light-colored African–American individual.” L. v. Norfolk S.
Corp., No. 4:15-CV-924-CEJ, 2015 WL 5886069, at *3 (E.D. Mo. Oct. 8, 2015) (quoting Bryant
v. Bell Atl. Maryland, Inc., 288 F.3d 124, 135 (4th Cir.2002)). “As the EEOC has explained, ‘color
discrimination occurs when a person is discriminated against based on the lightness, darkness, or
other color characteristic of the person” and “[e]ven though race and color clearly overlap, they are
not synonymous.” 	Id. 	(citing U.S. Equal Emp. Opportunity Comm'n, No. 915.003, EEOC
Compliance Manual, Section 15: Race and Color Discrimination, at 6 (Apr. 19, 2006),
http://www.eeoc.gov/policy/docs/race-color.pdf)).
JSND asserts that, with respect to his claim for color discrimination, Hossain has done little
more than check the box for “color” on the charge of discrimination form and that he has failed to
state a prima facie case. See Laws v. Norfolk Southern Corp., 415 CV-924-CEJ, 2015 WL 5886069,
at * 3.
Hossain’s complaint his devoid of any specific factual allegations that suffered any adverse
employment action or was otherwise discriminated against on account of his skin color. Put another
way, he has not presented facts that link his treatment at work was a factor in JSND’s decision not
to enroll in E-Verify or issue a pre-action letter to the extent they could be considered adverse
employment actions.
d. 	Sex Discrimination
Hossain asserts that the court can infer from his coworker’s comments and questions about
27
Case 1:20-cv-00009-CRH Document 56 Filed 04/11/23 Page 27 of 41

his materal status that he was discriminated on the basis of his sex and marital status. Specifically,
he assets:
1. 	On May 30th, 2017, before sending me the employment offer letter, my
supervisor Amy Shawver Morman asked me how many years of work authorization
do you have? After I answered that question my supervisor Amy Shawver Morman
again asked me “after that”? I told her that I am thinking to get married here (in
good faith). I believe reveling marital status and intention was a cause to get the
offer letter from my supervisor.
* * *
3. For revealing that marital status and intention to my supervisor Amy Shawver and
other co-workers, some of my Female co-workers, Amy Carlson Connie Johnson, as
well as my supervisor Amy Shawver and co-worker Mathwich Tyler for his daughter
directly or indirectly approached me for the prospect of marraige. It took some time
to take the decision regarding my marraige as I was doubtful about their intention.
I believe they felt I should be married to one of my female coworkers or someone
associated with them. I felt this was harassment based on my sex and marital status.
As I was not decided at that point regarding my marital decision, I did not respond
to my co-workers direct and indirect marriage related building and later expressing
harassments was a cause to take adverse decision by my Superior that led to my
termination by force. I lost employment, salary, experience, career.
* * *
17. In May 2018, I asked her work extension e-verify questions and Amy Shawver
Morman asked me when I was going to get married? I also replied that I am going
to get married to someone from my national origin here in USA. She intended to how
limited employment terms based on my national origin and marital status. 	Amy
Shawver and Jason Sutheimer later refused to accept a valid work document and
discharged me from the employment although I had right to work at Job Service
North Dakota.
(Doc. No. 4 at pp. 5-8) (errors in original). 	As he has not presented direct evidence of sex
discrimination in violation of Title VII, his claim is properly analyzed under McDonnell Douglas.
JSND again acknowledges that Hossain is a member of a protected class and that Hossain
met its legitimate expectations while in its employ. And it again asserts Hossain did not suffer an
adverse employment action for purposes of Title VII and has therefore failed to state a prima facie
28
Case 1:20-cv-00009-CRH Document 56 Filed 04/11/23 Page 28 of 41

claim of sex discrimination. The court agrees.
Hossain cannot establish that he suffered an adverse employment action. JSND did not
terminate Hossain’s employment. Hossain resigned. Had he not resigned, his employment would
have come to an end six days later when his work authorization expired. 	As discussed above,
neither JSND’s decision not to enroll in E-Verify nor the pre-action letter constitute an adverse
action for purposes of Title VII.
Even if Hossain could establish that he suffered an adverse employment action, he has failed
to establish that circumstances give rise to an inference of sex discrimination. Hossain has presented
nothing of substance to support his claim that he was treated differently than similarly situated
females. Yes, he points to the comments of his coworkers regarding his marital status. However,
he makes no connection between these comments and any adverse employment action. In the end,
his claim and supporting evidence boils down to the following: he was discriminated against because
his coworkers talked to him about marriage and his marital status. 	Absent more, such stray
comments are not evidence of discrimination. See Thomas v. Corwin, 483 F.3d 516, 540 (8th Cir.
2007).
If Hossain could establish a prima face case of sex discrimination, JSND has articulated a
legitimate nondiscriminatory reason for its decision not to enroll in E-Verify as an employer as well
as why it issued a pre-action notice to Hossain. Notably, Hossain has presented nothing to even
remotely suggest that the reasons articulated by JSND are pretextual.
e. 	Religious Discrimination
Hossain claims that he “was subjected to hostile working environment, harassment, based
on . . . religion/Islam . . . .” (Doc. No. 4 at p. 11). Specifically, he alleges:
29
Case 1:20-cv-00009-CRH Document 56 Filed 04/11/23 Page 29 of 41

Based on my religion and national origin, I also believe Job Service North Dakota
also had some stereotypes regarding security issues although I was working there
satisfying all the federal and state laws. I also tried to cooperate with Human
Resources and my supervisor several times regarding this matter by properly
communicating with them in a regular manner. After all these efforts, at some point,
I felt harassed and reported to Human resource manager Jason Sutheimer verbally
that this delay or harassments affecting my work progress and creating emotional and
mental pressure in me . . .
* * *
On 18th, 2018, In order to oppose discrimination I felt based on my national origin,
religion, marital status I said to Jason Sutheimer that “I currently have a I-20
document issued by Department of Homeland Security and they issues two years of
work Authorization” pointing to the already issued I-9 documents in my hand in an
asserting manner to oppose their ongoing acts, words not to wanting to give me work
extension in time and proper way after Jason Sutheimer commented “this e-verify
number will not work.”
* * *
On June 21st, 2018 Mattwich Tyler asked me, “So a master’s degree holder like you
are not going to throw a bomb are you? and intentionally revealed the reason that Job
service North Dakota is removing me from the job. My supervisor asked me several
questions regarding my religion previously revealing that she has also a stereotyped
view about my religious creed and beliefs, I believe which was created against me
inside the Job service North Dakota co-workers by only Muslim Community Center
in Bismarck (religion) and Bangladeshi (national origin) Community at North
Dakota through their personal connections for political rivalry at my national origin.
(Id. at pp. 7-9) (errors in original). In his response to JSND’s motion, he cites additional questions
and comments made by his coworkers, his lack of a laptop, and mail that he received:
1. Before finishing the probationary period, IT manager Pat C Kelly (plaintiff
supervisor's supervisor) asked plaintiff something similar to effect "what is the
situation in [your] country?" plaintiff replied regarding what? Pat C Kelly replied
something similar to effect "regarding religious and political situation? Plaintiff
replied something similar to the effect "unrest in those matter'' early sixty upheavals
of socialism made this country into a secular country there is a division in the
geopolitics between India and Pakistan and after that Pat C Kelly asked plaintiff
based on what? Plaintff hesitated a little bit and replied him "religion" then he asked
plaintiff"what is the major religion over there?" Plaintiff said "Islam". Plaintiff also
stated something similar to the effect that "plaintiff feels some people still act like
30
Case 1:20-cv-00009-CRH Document 56 Filed 04/11/23 Page 30 of 41

in 	servitude 	[opposition 	to 	independence] 	[to 	Pakistan] 	or 	[Pakistanism]"
Conversation like this raises inference of discrimination on the basis of plaintiff's
religion, religious affiliation. Declaration of plaintiff at 4 ¶ 25.
2. Some weeks before Plaintiff's termination, plaintiff had a discussion with his
supervisor, Amy Shawver Morman that he will give her update about some of the
work progress in two to three weeks and plaintiff also said to her that I am writing
an application to Department of homeland security and trying to remember some
events exactly as what happened in the past during that conversation. At parking lot
referring to that application Amy Shawver Morman asked what it is about? Plaintiff
replied its regarding some political and religious matter. After Amy Shawver
Morman asked plaintiff what's the matter regarding religion? plaintiff replied people
are irrational about religion especially from my country or Asian subcontinent.
Surrounding the event, Amy Shawver also asked plaintiff "Did we hire a criminal?
Declaration of plaintiff at 4 ¶ 26.
3. Mathwich Tyler, a team member, who was closely associated with plaintiff
regarding his employment at Job Service North Dakota and had decision making
power regarding plaintiff's employment pursuant to cat's paw theory, as he was
closely associated with Amy Shawver Morman in plaintiff's team commented on
June 21 •1, 2018, "so, a master's degree holder like you are not going to throw a
bomb, are you? He also commented "the security concerns are overblown" . see
section A. at 12 ¶ 36. this comment raises inference based on plaintiff's religion as
"terrorist" plaintiff was perceived by JSND during the time of plaintiff's entire
employment. And expressing it after plaintiff was forced to sign a resignation lettter
or "plaintiff was done "see Plaintiff Exhibit Msjl at 16 ¶ 11 on that Day . Amy
Shawver Morman was located next to plaintiff's desk when this comment was made.
Raises reasonable inference of discrimination based on religion considering the
circumstance or plaintiff was getting terminated because of his religion.
4. When all other team member had laptop, all the similarly situated team members,
plaintiff as a full-time classified employee was not assigned any laptop similar to All
team members decorated their desk during chrismas but plaintiff did not decorate.
Raises circumstances based on religion considering him as someone who is going to
throw bomb using office laptop.
5. Plaintiff received some documents in his mailbox that had something roughly
similar to that effect while employed at Job service North Dakota "internet access at
Plaintiff's home will be monitored". Until this point of lawsuit plaintiff was not able
to find any state administrative code requires that employee's internet access should
be monitored when plaintiff was not assigned any official laptop while working at
Job service North Dakota raises inference of discrimination based on religion.
Declaration of Plaintiff at 4 ¶ 21.
31
Case 1:20-cv-00009-CRH Document 56 Filed 04/11/23 Page 31 of 41

(Doc. No. 52- at pp. 31-32) (errors in original).
Because Hossain has presented no direct evidence of discrimination, the court shall evaluate
his claim under the McDonnell Douglas framework. For the reasons previously discussed, Hossain
has not suffered an adverse employment action for purposes of Title VII. 	Moreover, the
circumstances as he has framed them do not give rise to an inference of religious bias or
discrimination. Absent more, the mere fact that someone asked him questions about his religion
does not provide a foundation on which to base a claim for religious discrimination. The same can
be said with what appears to be a stray comment by a coworker. Finally, Hossain has presented
nothing to suggest that the legitimate, nondisciminatory reasons articulated by JSND for its decision
not to enroll in E-Verify and to issue a pre-action notice were pretextual.
f. 	National Origin Discrimination
Hossain claims that JSND discriminated against him on the basis of his national origin. As
direct evidence of this discrimination, he cites comments made by his interviewer during the hiring
phase that “ English is a second language, so he has a slight accent which our staff will need to get
used to but it’s managable.” 	(Doc. No. 52 at p. 14) (errors in original). 	He also cites pre-
employment inquiries about his employment authorization, Shawver-Morman’s statement that “ you
keep half of your sentence inside you, express rest of the half, get excited in the middle of your talk
that’s part of the problem too,” comments by Sutheimer about EADs and part-time work, comments
from some of coworkers, and unspecified documents that he received in the mail.
These comments at issue can fairly be characterized as stray remarks that are facially neutral,
and fairly innocuous. 	They are not connected to any adverse employment decision. 	This is
particularly true of the interviewer’s purported comments. 	If anything, the comment by the
32
Case 1:20-cv-00009-CRH Document 56 Filed 04/11/23 Page 32 of 41

interviewer about Hossain’s accent does not reflect animus or bias but rather a belief that Hossain’s
accent was a non issue. 	The statement attributed by Hossain to Shawver-Morman is likewise
facially neutral and innocuous. 	As for Suthheimer’s comments, they do not reflect and do not
otherwise appear to be inappropriate given the context in which they were made–during a meeting
with Hossain to discuss his employment authorization and the employment opportunities that were
currently available to him.
Insofar as Hossain’s claim may be predicated upon indirect as opposed to direct evidence,
it still fails. The indirect evidence on which Hossain bases his claim of national origin discrimination
is ostensibly the same evidence on which he based his claim of race discrimination. For the reasons
previously discussed, Hossain has not suffered an adverse employment action for purposes of Title
VII. Even if he had, JSND has proffered legitimate, nondiscriminatory bases for its actions that
Hossain has not demonstrated, much less alleged, were pretexual. For these reasons, Hossain’s claim
does not survive summary judgment. The court shall now move on to address Hossain’s hostile
work environment claim.
g. 	Hostile Work Environment
Hossain claims that he was subjected to harassment based on protected characteristic, i.e.,
his race, sex, religion, and national origin and that he suffered great stress and anxiety as a result.
The various comments and conduct that form the basis for Hossain’s other claims of discrimination
form the basis for his hostile work environment.
JSND asserts that Hossain’s claim rests on stray comments made by co-workers and does
not imput knowledge of a hostile work environment or claims of harassment to decisionmakers at
JSND. 	It further asserts that there is dearth of evidence to even remotely suggest that
33
Case 1:20-cv-00009-CRH Document 56 Filed 04/11/23 Page 33 of 41

decisionmakers were aware of any harassment or claims of harassment regarding any protected
category and that Hossain has therefore failed to state a prima facie claim.
In response, Hossain asserts simply that JSND can be held liable under the “cat’s paw
theory” as decisionmakers were influenced by other employees who did have a discriminatory
motive.
Title VII recognizes an employees' entitlement to a workplace free of “discriminatory
intimidation, ridicule, and insult” motivated by the employees' membership in a protected class.
Harris v. Forklift Sys., Inc., 510 U.S. 17, 21–22 (1993). “All instances of harassment need not be
stamped with signs of overt discrimination to be relevant under Title VII if they are part of a course
of conduct which is tied to evidence of discriminatory animus.” Carter, 173 F.3d at 701.
“To actually alter the terms and conditions of employment, conduct must be severe and
pervasive, both objectively and subjectively.” Gonzalez v. City of Minneapolis, 267 F. Supp. 2d
1004, 1015 (D. Minn. 2003) (citing Duncan v. General Motors Corp., 300 F.3d 928, 933 (8th Cir.
2002)). “Factors to consider when determining the severity and pervasiveness of an employer's
conduct include the frequency of the discriminatory conduct; its severity; whether it is physically
threatening or humiliating or merely offensive, and whether it unreasonably interferes with an
employee's work performance.” Id. “One-time incidents, unless severe, are insufficient to establish
the level of harassment necessary to prove a hostile environment.” Soto, 285 F. Supp. 2d at1168
(N.D. Iowa 2003). “Further, sporadic and casual comments are also unlikely to support a hostile
environment claim.” Id. (citing Cram v. Lamson & Sessions, Co., 49 F.3d 466, 474 (8th Cir.1995),
and Johnson v. Bunny Bread Co., 646 F.2d 1250, 1257 (8th Cir.1981)); see also Faragher v. City
of Boca Raton, 524 U.S. 775, 788 (1998) (stating that "Title VII does not prohibit genuine but
34
Case 1:20-cv-00009-CRH Document 56 Filed 04/11/23 Page 34 of 41

innocuous differences in the ways men and women routinely interact with members of the same sex
and of the opposite sex and that "offhand comments, and isolated incidents (unless extremely
serious) will not amount to discriminatory changes in the terms and conditions of employment"
(internal quotation marks omitted)).
The comments on which Hossain relies are of the sporadic and casual variety. Most if not
all of the comments appear to be innocuous or facially neutral. The fact that Hossain took offense
to them does not necessary mean they are actionable. As noted above, the conduct at issue must be
both objectively and subjectively severe.
As JSND has correctly pointed out, the comments made by co-workers cannot be imputed
to decisionmakers. See Wilke v. Dep’t of Health & Human Servs., 638 F.3d 944, 952-54 (8th Cir.
2011). Moreover, the record is devoid of any evidence to suggest that decisionmakers were aware
of the comments of Hossain’s coworkers or of Hossain’s concerns.
Hossain’s “cat’s paw theory” falls apart under scrutiny. The record reflects that Sutheimer
and Shawmer-Morman were two of Hossain’s biggest advocates at JSND. Sutheimer initiated the
E-Verify enrollment process at JSND. 	Shawman-Morman made contact with others outside of
JSND in an effort to locate someone who could provide Hossain with legal assistance. 	Both
repeatedly met with Hossain to discuss his options and to otherwise offer their assistance. If they
had the level of influence that Hossain has suggested, it would stand to reason that JSND would
have charted a different course continuing with the E-Verify enrollment process instead of
terminating it.
In any event, Hossain has presented nothing to suggest that his allegedly harassment affected
a term or condition of his employment. JSND was obviously aware of his national origin when it
35
Case 1:20-cv-00009-CRH Document 56 Filed 04/11/23 Page 35 of 41

hired him. Hossain knew when starting his time at JSND that his time there was finite as his work
authorization expired on June 26, 2019. In regards to the laptop and Hossain’s assertion that, unlike
other employees, he was not assigned one upon completing his probationary period whereas others
were, the court again notes that he had, by his own admission, a work computer and otherwise had
computer access as evidenced by his ability to send emails and instant messages. Hossain’s hostile
work environment claim is therefore subject to summary judgment. The court shall now turn to
Hossain’s claim fo retaliation.
h. 	Retaliation
Hossain claims that JSND retaliated against him for engaging in a protected activity, i.e.,
reporting JSND’s mistreatment, harassment and discrimination conduct to the Department of
Homeland Security in his asylum application, and seeking the assistance of counsel. In so doing,
he asserts that JSND knew or could have known the contents of his asylum application as it was
saved on his work computer. Additionally, he stresses that he had made several complaints about
his treatment during the course of his employment to Suthheimer and Sharwan-Morman and that he
further advised them of his intent to retain counsel and explore his legal options following JSND’s
eventual refusal to enroll in E-Verify. 	In his eyes, the retaliation ostensibly was JSND’s decision
not to enroll in E-Verify and issuance of the pre-action notice. It cannot be his termination as he was
not fired by JSND but resigned six days before the expiration of his work authorization.
JSND asserts in its motion that Hossain’s claim of retaliation fails because no one would
reasonably believe that the incidents reported by Hossain violated Title VII, that Hossain’s
conversations with his superiors did not constitute protected activity, that Hossain suffered no
adverse employment action, and that Hossain could not demonstrate there was a causal connection
36
Case 1:20-cv-00009-CRH Document 56 Filed 04/11/23 Page 36 of 41

between an adverse employment action and his engagement in any protected activity. See Orluske
v. Mercy Med. Ctr.-N. Iowa, 455 F. Supp. 2d 900, 920 (N.D. Iowa 2006) (“Where no one could have
reasonably believed that the incident reported by the plaintiff violated Title VII (or the underlying
statute), the plaintiff's retaliation claim fails.”); see also Gray v. City of Valley Park, Mo., No.
4:07CV00881 ERW, 2008 WL 294294, at *18 (E.D. Mo. Jan. 31, 2008) (noting the voluntary nature
of the employment verification programs established by Congress for employers).
Hossain disagrees, asserting that he did engage in a protected activity and that it cost him the
opportunity to obtain a “STEM extension” and with it continued employment.
Plaintiff went to Jason sutheimer's Room to officially present those I-20 documents
as requirements and in order to ask some questions related with those I-9 documents.
ECF # 51-12 at 16-17. During the conversation, toward end of the meeting, Jason
Sutheimer stated to plaintiff something similar "that number will not work" or "that
number 	did 	not 	work". 	Plaintiff 	reasonably 	felt 	something 	adverse 	to 	his
employment. Plaintiff expressly opposed Jason Suthimer
stating ""I currently have a 1-20 or I-9 document issued by Department of Homeland
Security and they issued two years of work Authorization" and again presented those
documents to Jason sutheimer in an asserting or expressly opposing manner.
Declaration of Plaintiff at 2 ¶ 5.
After this opposing event or protected activity, everything started to deteriorate as
next day On June 19 th, 2018, Jason Sutheimer told plaintiff they have canceled
E-Verify account and will not accept plaintiff's 1-9 document in his possession and
also commented that "I should work for $10/hr Job". Declaration of plaintiff at 216.
See Section A. at 7,8 ¶ 28,29
Causal connection can be established as Darren Brostrom testified "On or around
June 18, 2018, a discussion was held relating to E-Verify and whether JSND should
enroll into E-Verify. This conversation was between Michelle Kommer, the JSND
Executive Director at that time, and me. To the best of my recollection, the
discussion occurred because we had a request from HR to enroll in E- Verify to assist
an employee". Decl. Brostrom at 216.
Protected activity on June 18, 2018 Declaration of plaintiff at 2 ¶ 5 caused Jason
Sutheimer to influence upper decision makers to take decision which is going to
affect plaintiff adversely because of expressly opposing activity. See Section A. at
7,8 '¶ 28,29.
37
Case 1:20-cv-00009-CRH Document 56 Filed 04/11/23 Page 37 of 41

On June 19th ,2018 plaintiff hired an attorney in order to save his job. see Plaintiff
Exhibit Msjl at 17, 18. or preventing employer from further make his employment
terms worse.
On June 20th ,2018 Plaintiff argued, opposed and asserted his right with the help of
attorney to the extent possible. Finally , during that event when plaintiff was
presented with a termination letter and again plaintiff wanted to send those
documents to USCIS , Jason Sutheimer then threatened to jeopardize plaintiff
immigration status as well as asylum case and wanting plaintiff to put into
immigration fraud . Plaintiff was forced to sign a termination letter. See Section A.at
10 ¶ 3 l.
(Doc. No. 52 at pp. 16-17) (errors in original).
Assuming Hossain had engaged in a protected activity for purposes of Title VII the court
finds that he has not established that he suffered an adverse employment action for the reasons
discussed above.
Even if he could establish that he suffered from an adverse employment action, he has failed
to demonstrate any linkage between this action and his engagement in protected activity. 	As a
decisionmaker at JSND, Bromstrom, has attested under penalty of perjury that neither he nor
Krommer, JSND’s other decisionmaker, had any knowledge of Hossain’s asylum application, its
contents, or Hossain’s other purported issues with his coworkers at JSND when deciding to forego
JSND’s enrollment in E-Verify. In contrast, Hossain has provided nothing more than conjuncture
that decisionmakers were aware of the contents of his asylum application by virtue of the fact that
it was saved on his work computer. It is also worth noting (again) that by, all appearances, there
would not have been a request for E-Verify enrollment before Bostrum and Krommer if not for the
efforts undertaken by Suthheimer on Hossain’s behalf, and that Sharwan-Morman also had
undertaken efforts to put Hossain in touch with an attorney who could assist him. Finally, it should
be noted that JSND has articulated legitimate, nondisciminatory reasons for the decision to forego
38
Case 1:20-cv-00009-CRH Document 56 Filed 04/11/23 Page 38 of 41

enrollment in E-Verify and for its issuance of the pre-action letter. Notably, Hossain has presented
nothing to suggest these reasons are mere pretext. For these reasons, Hossain’s retaliation claim
does not survive summary judgment. The court shall now move on to address Hossains state law
claims.
B. 	Hossain’s State (NDHRA) Claims
JSND seeks dismissal of Hossain’s claims under the NDHRA on grounds of sovereign
immunity and Hossain’s noncompliance with N.D.C.C. § 32–12.2–04(1).
Federal courts have supplemental jurisdiction under 28 U.S.C. § 1367(a) over state law
claims that arise from a “common nucleus of operative fact” with a federal question claim, such that
they form a single “constitutional case.” Raygor v. Regents of Univ. of Minn., 534 U.S. 533, 539
(2002) (quotation marks and citation omitted). This court has jurisdiction over Hossain’s state law
claims only if the State of North Dakota has waived its sovereign immunity as guaranteed under the
Eleventh Amendment, since “§ 1367(a)’s grant of jurisdiction does not extend to claims against
nonconsenting state defendants.” Id. at 541. The State of North Dakota has specifically preserved
its Eleventh Amendment sovereign immunity. N.D.C.C. § 32–12.2–10. Consequently, this court has
no subject matter jurisdiction to hear Hossain’s NDHRA claims..
Even if the State had not preserved its Eleventh Amendment immunity, this court would lack
subject 	matter 	jurisdiction 	over 	Hossain’s 	NDHRA 	claims 	for 	another 	reason–Hossain’s
noncompliance with N.D.C.C. § 32–12.2–04(1).
N.D.C.C. § 32–12.2–04(1) requires that claims against the state or state employees be
presented to OMB within 180 days after the injury is discovered. Specifically, it provides:
A person bringing a claim against the state or a state employee for an injury shall
present to the director of the office of management and budget within one hundred
39
Case 1:20-cv-00009-CRH Document 56 Filed 04/11/23 Page 39 of 41

eighty days after the alleged injury is discovered or reasonably should have been
discovered a written notice stating the time, place, and circumstances of the injury,
the names of any state employees known to be involved, and the amount of
compensation or other relief demanded.
N.D.C.C. § 32–12.2–04(1). The term “injury” as used in N.D.C.C. § 32–12.2–04(1) encompasses
“bodily injury, mental injury, sickness, or disease sustained by a person and injury to a person’s
rights or reputation.” N.D.C.C. §§ 32-12.2.01(2) and (4).
JSND asserts that the notice-of claim-requirement is a jurisdictional prerequisite that Hassan
has not satisfied and that his NDHRA claims must therefore be dismissed. See Ungar v. N.D. State
Univ., 2006 ND 185, ¶¶ 22, 721 N.W.2d 16; State v. Haskell, 2001 ND 14, 621 N.W.2d; see also
Moe v. Univ. of N. Dakota, No. CIV A2-98-123, 1999 WL 33283359, at *1 (D.N.D. Mar. 23, 1999).
The court agrees.
It is well-settled that, in order to bring a legal action against the state pursuant to the
NDHRA, a plaintiff must first satisfy N.D.C.C. § 32–12.2–04(1)’s notice of claim requirement.
Should a plaintiff fail to satisfy this requirement, his action is subject to dismissal for lack of
jurisdiction. See State v. Haskell, 2001 ND 14, 621 N.W.2d (concluding that a plaintiff’s failure to
present her NDHRA claim in compliance with N.D.C.C. § 32–12.2–04 rendered the trial court
without jurisdiction); Cooke v. Univ. of N.D., 1999 ND 238, 603 N.W.2d 504 (“If a person suing
the state fails to satisfy N.D.C.C. § 32–12.2–04(1)'s notice of claim requirement, dismissal of the
person's complaint is proper.”); Moe v. Univ. of N. Dakota, No. CIV A2-98-123, 1999 WL
33283359, at *1 (D.N.D. Mar. 23, 1999) (dismissing a plaintiff’s action under the NDHRA on
account of her noncompliance with N.D.C.C. § 32–12.2–04(1)'s notice of claim requirement).
Hossain claims that he was subjected to a hostile work environment, retaliated against, and
otherwise discriminated against on the basis of his race, color, gender, religion, national origin, and
40
Case 1:20-cv-00009-CRH Document 56 Filed 04/11/23 Page 40 of 41

marital status while employed by JSND and/or when applying for reinstatement/re-employment with
JSND in violation of the NDHRA. The injuries he allegedly suffered as a result (mental injury and
injury to his rights or reputation) are the type for which a notice of claim is required.
Hossain has failed to present any evidence by affidavit or otherwise that he presented a
written claim for compensation to OMB as required by N.D.C.C. § 32–12.2–04. For this reason, his
claims under the NDHRA are dismissed for lack of jurisdiction.
IV. 	CONCLUSION
There is a cynical expression commonly used by Americans and perhaps others that “no good
deed goes unpunished.” 	JSND and its employees may feel that this expression adequately and
succinctly summarizes what has transpired in the wake of their efforts to assist Hossain.
Hossain did not like the outcome of his employment at JSND. His dislike of the outcome
does not constitute the basis for cognizable claims of employment discrimination, however. Hossain
has failed to make out prima facie claims of discrimination under Title VII. His IRCA and HSND
claims are subject to dismissal for the reasons discussed above. 	JSND’s Motion for Summary
Judgment (Doc. No. 49) is therefore GRANTED. Hossain’s case is dismissed in its entirety. The
Clerk’s office shall enter judgment accordingly. The court certifies that an appeal of the dismissal
of this action cannot be taken in good faith.
IT IS SO ORDERED.
Dated this 11th day of April, 2023.
/s/ Clare R. Hochhalter
Clare R. Hochhalter, Magistrate Judge
United States District Court
41
Case 1:20-cv-00009-CRH Document 56 Filed 04/11/23 Page 41 of 41