John McCauley v. TATE & KIRLIN ASSOCIATES, INC. On

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-2291
___________
JOHN MCCAULEY,
Petitioner
v.
TATE & KIRLIN ASSOCIATES, INC.
____________________________________
On Petition for Review of an Order of the Office
of the Chief Administrative Hearing Officer
(OCAHO Case No. 08B00013)
_______________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 5, 2009
Before: McKEE, HARDIMAN and COWEN, Circuit Judges
(Opinion Filed: October 06, 2009 )
_________
OPINION
_________
PER CURIAM
John McCauley petitions for review of an order of the Office of the Chief
Administrative Hearing Officer (“OCAHO”) entering summary judgment against him on

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McCauley previously had been terminated by a different employer for refusing to1
disclose his social security number. He sued that employer in federal court under Title
VII and several other statutory and constitutional provisions. The District Court
dismissed his complaint under Rule 12(b)(6), and we affirmed. See McCauley v.
Computer Aid, Inc., 242 Fed. Appx. 810 (3d Cir. 2007).
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his claims of citizenship-status discrimination under 8 U.S.C. § 1324b. We will deny his
petition.
I.
Tate & Kirlin Associates, Inc. (“Tate & Kirlin”) hired McCauley as an account
collector. On his first day of work, he refused to disclose his social security number on a
form I-9 and refused to present a copy of his social security card, as a Tate & Kirlin
representative earlier had instructed him he would have to do. Instead, he produced his
birth certificate and passport. After some discussion between McCauley and certain Tate
& Kirlin representatives about whether McCauley was legally required to disclose his
social security number or present a social security card, a Tate & Kirlin representative told
McCauley that he would be terminated if he refused to do so. McCauley again refused and
threatened to sue if Tate & Kirlin terminated him, which it then did.
Thereafter, McCauley filed a complaint with the Special Counsel for Immigration-
Related Unfair Employment Practices pursuant to 8 U.S.C. § 1324b(c). McCauley, who1
is and all his life has been a United States citizen, alleged that Tate & Kirlin discriminated
against him on the basis of his citizenship in violation of 8 U.S.C. § 1324b(a). After the
Special Counsel notified McCauley pursuant to 8 U.S.C. § 1324b(d)(2) of his right to

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McCauley also filed a motion for a “declaratory judgment” that he was not legally2
obligated to provide his social security number. The ALJ, noting that the OCAHO rules
codified at 28 C.F.R. §§ 68.1-68.58 make no provision for the issuance of declaratory
judgments, nevertheless discussed the substance of McCauley’s motion and declined to
issue the declaration. McCauley has not directly challenged that ruling in his briefs, and
we thus do not address it. To the extent that his briefs can be read to challenge the ALJ’s
discussion of the issues he raised in that motion, his arguments are irrelevant to the issues
on appeal for the reasons discussed below.
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bring a private action, McCauley filed a complaint with the OCAHO. He alleged that Tate
& Kirlin: (1) terminated him because he is a United States citizen in violation of §
1324b(a)(1)(B); (2) committed so-called “document abuse” by failing to accept his
proffered documents as proof of citizenship, again with the intent to discriminate against
him because of his United States citizenship, in violation of § 1324b(a)(6); and (3)
intimidated him and retaliated against him in violation of § 1324b(a)(5) by terminating
him after he threatened to sue.
After a period of discovery, Tate & Kirlin filed a motion for summary judgment
under 28 C.F.R. § 68.38. The Administrative Law Judge (“ALJ”) granted the motion by
order entered March 5, 2009. McCauley petitions for review.2
II.
We have jurisdiction pursuant to 8 U.S.C. § 1324b(i)(1). We exercise plenary
review over the ALJ’s application of the federal summary judgment standard, though we
give deference to “an agency’s reasonable construction of a statute it is charged with
administering.” Getahun v. Office of the Chief Admin. Hearing Officer, 124 F.3d 591,

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McCauley devotes much of his brief to arguing that he was not required to disclose his3
social security number, and he claims that he in fact disclosed it on his employment
application. Those arguments are of no moment. Section 1324b prohibits only
discrimination on the basis of citizenship or immigration status. Thus, even if
McCauley’s arguments are true, and even if Tate & Kirlin somehow was mistaken in
requiring his social security number or terminating him for refusing to provide it (all
issues on which express no opinion), Tate & Kirlin’s actions were not in violation of this
statute. While we thus need not address McCauley’s arguments regarding social security
numbers and the employment verification process, we refer him to our discussion of those
issues in his previous appeal. See McCauley, 242 Fed. Appx. at 812-13. McCauley also
makes repeated reference to the affidavit of Dalreese Holman, which he claims the ALJ
wrongfully failed to credit. Mr. Holman’s affidavit, however, contains nothing
suggesting that Tate & Kirlin terminated McCauley because he is a United States citizen
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594 (3d Cir. 1997). Our review confirms that the ALJ thoroughly and accurately
explained why Tate & Kirlin was entitled to summary judgment on each of McCauley’s
three claims, and we will deny this petition for the reasons already adequately explained in
her opinion.
In sum, McCauley’s first two claims required him to come forward with some
evidence that, in terminating him and refusing to accept his passport and birth certificate in
lieu of a social security card, Tate & Kirlin acted with the intent to discriminate against
him because he is a United States citizen. See 8 U.S.C. §§ 1324b(a)(1)(B) & (a)(6);
United States v. Diversified Tech. & Servs. of Va., Inc., 9 OCAHO 1095, available at
2003 WL 21130616, at *5, 10-11 (O.C.A.H.O. 2003). We agree that McCauley came
forward with no such evidence. Instead, his evidence showed only that Tate & Kirlin
terminated him because he refused to disclose his social security number, not because he is
a United States citizen.3

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(A.R. 109), and neither does any other evidence of record.
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McCauley’s final claim required him to show that Tate & Kirlin terminated him
because of a threat to file a charge under § 1324b. See 8 U.S.C. § 1324b(a)(5) (prohibiting
interference with “any right or privilege secured under this section” and retaliation for
filing a charge “under this section”) (emphasis added); Arres v. IMI Cornelius Remcor,
Inc., 333 F.3d 812, 813-14 (7th Cir. 2003) (explaining that this prohibition “is limited to
complaints and charges regarding . . . the subject of § 1324b”); Yohan v. Central State
Hosp., 4 OCAHO 593, available at 1994 WL 269185, at *7 (O.C.A.H.O. 1994) (same).
As the ALJ correctly explained, McCauley admitted at his deposition that he never
threatened to file a charge against Tate & Kirlin under this statute, and did not even know
himself where he would file a claim at the time he threatened to sue. (A.R. 250-52.)
Moreover, McCauley does not claim that he ever told Tate & Kirlin that he believed it was
discriminating against him because he is a United States citizen, and he acknowledged that
a Tate & Kirlin representative told him that he would be terminated for refusing to present
a social security card even before McCauley issued his vague threat to file a complaint.
(Id.)
Accordingly, we will deny the petition for review.

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