Moore v. Cognizant Technology Solutions et al

Filing 51

ORDER granting 35 motion to dismiss; granting 25 Motion to Dismiss for Failure to State a Claim; dismissing complaint without prejudice. Signed by Judge Gregory A. Presnell on 10/13/2016. (ED)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
DENA MOORE,
Plaintiff,
v.

Case No: 6:16-cv-113-Orl-31TBS

COGNIZANT TECHNOLOGY
SOLUTIONS and WALT DISNEY
PARKS AND RESORTS U.S., INC.,
Defendants.

ORDER
This matter comes before the Court without a hearing on the motions to dismiss filed by
Defendant Cognizant Technology Solutions U.S. Corporation (“Cognizant”) (Doc. 25) and
Defendant Walt Disney Parks and Resorts U.S., Inc. (“WDPR”) (Doc. 35), as well as the
responses in opposition (Doc. 42, 43) filed by the Plaintiff, Dena Moore, and the replies (Doc. 48,
49) filed by the Defendants.
I.

Background

According to the allegations of the Complaint (Doc. 1), which are accepted in pertinent
part as true for purposes of resolving the instant motions, Moore is a former employee of WDPR’s
information technology (“IT”) department. (Doc. 1 at 6). Cognizant is an IT consulting firm.
(Doc. 25 at 3). In January 2015, she and several hundred other WDPR IT workers were fired;
their responsibilities were filled by IT workers employed by Cognizant. (Doc. 1 at 6). The
workers who replaced the Plaintiff and her co-workers were foreign nationals holding H-1B visas.
(Doc. 1 at 7) WDPR management told Moore and her co-workers of their imminent firing more

than 90 days in advance, and informed them that if they did not stay and train the Cognizant IT
workers during that period, they would not get a bonus and severance pay. (Doc. 1 at 6).
Moore contends that, in the process of obtaining H-1B visas for the workers who would
eventually replace her and her co-workers, Cognizant made a number of false statements on forms
it was required to submit to the federal government. (Doc. 1 at 11). She argues that these false
statements violated the Racketeer Influenced and Corrupt Organizations Act (henceforth,
“RICO”), 18 U.S.C. § 1862. On January 25, 2016, Moore filed the instant suit, a putative class
action. In the Complaint, Moore asserts three claims: one for a violation of the civil RICO statute
(Count I); one for a violation of the RICO conspiracy statute (Count II); and one for common law
conspiracy (Count III). Count I is asserted only against Cognizant, while the other two counts are
asserted against both Defendants.
By way of the instant motions, the Defendants seek dismissal of all three counts.
II.

Legal Standards

Federal Rule of Civil Procedure 8(a)(2) requires “a short and plain statement of the claim
showing that the pleader is entitled to relief” so as to give the defendant fair notice of what the
claim is and the grounds upon which it rests, Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 103,
2 L.Ed.2d 80 (1957), overruled on other grounds, Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A Rule 12(b)(6) motion to dismiss for failure to state a
claim merely tests the sufficiency of the complaint; it does not decide the merits of the case.
Milburn v. United States, 734 F.2d 762, 765 (11th Cir.1984). In ruling on a motion to dismiss,
the Court must accept the factual allegations as true and construe the complaint in the light most
favorable to the plaintiff. SEC v. ESM Group, Inc., 835 F.2d 270, 272 (11th Cir.1988). The

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Court must also limit its consideration to the pleadings and any exhibits attached thereto. Fed. R.
Civ. P. 10(c); see also GSW, Inc. v. Long County, Ga., 999 F.2d 1508, 1510 (11th Cir. 1993).
The plaintiff must provide enough factual allegations to raise a right to relief above the
speculative level, Twombly, 550 U.S. at 555, 127 S.Ct. at 1966, and to indicate the presence of the
required elements, Watts v. Fla. Int’l Univ., 495 F.3d 1289, 1302 (11th Cir. 2007). Conclusory
allegations, unwarranted factual deductions or legal conclusions masquerading as facts will not
prevent dismissal. Davila v. Delta Air Lines, Inc., 326 F.3d 1183, 1185 (11th Cir. 2003).
In Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173 L.Ed.2d 868 (2009), the Supreme
Court explained that a complaint need not contain detailed factual allegations, “but it demands
more than an unadorned, the-defendant-unlawfully-harmed-me accusation. A pleading that offers
labels and conclusions or a formulaic recitation of the elements of a cause of action will not do.
Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement.”
Id. at 1949 (internal citations and quotations omitted). “[W]here the well-pleaded facts do not
permit the court to infer more than the mere possibility of misconduct, the complaint has alleged –
but it has not ‘show[n]’ – ‘that the plaintiff is entitled to relief.’” Id. at 1950 (quoting Fed. R.
Civ. P. 8(a)(2)).
III.

Analysis

The Racketeer Influenced and Corrupt Organizations Act (“RICO” or the “Act”), 18
U.S.C. §§ 1961-68, imposes both criminal and civil liability for “racketeering activity” connected
to interstate commerce. 18 U.S.C. § 1962. Section 1961(1) of the Act defines “racketeering
activity” to include, inter alia, any act that is indictable under 18 U.S.C. § 1546, which deals with
fraud and misuse of visas. Among other things, 18 U.S.C. § 1546 imposes criminal liability upon
anyone who

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knowingly makes under oath, or as permitted under penalty of
perjury under section 1746 of title 28, United States Code,
knowingly subscribes as true, any false statement with respect to a
material fact in any application, affidavit, or other document
required by the immigration laws or regulations prescribed
thereunder, or knowingly presents any such application, affidavit,
or other document which contains any such false statement or which
fails to contain any reasonable basis in law or fact.
18 U.S.C. §1546(a) (emphasis added).
Section 1964(c) of the RICO Act provides a private cause of action for “[a]ny person
injured in his business or property by reason of a violation of section 1962.” To state a prima
facie RICO claim under Section1964(c), a plaintiff must establish three elements: first, that the
defendant committed a pattern of RICO predicate acts under Section 1962; second, that the
plaintiff suffered injury to business or property; and third, that the defendant’s racketeering
activity proximately caused the injury. Simpson v. Sanderson Farms, Inc., 744 F.3d 702, 705
(11th Cir. 2014).
In the instant case, Moore alleges that Cognizant violated 18 U.S.C. §1546 by making false
statements on forms submitted to the U.S. Department of Labor Employment and Training
Administration (henceforth, “ETA”). (Doc. 1 at 11). She further alleges that these false
statements were predicate acts for purposes of her civil RICO claim. (Doc. 1 at 16). Moore
admits that she has not seen any of the forms at issue, but asserts that Cognizant was legally
required to submit them as part of the H-1B visa process. (Doc. 1 at 7).
The first type of form allegedly containing false statements was ETA Form 9035, titled
“Labor Condition Application for Nonimmigrant Workers” (henceforth, the “LCA”). Moore
attached a blank copy of the LCA to the Complaint. (Doc. 1-2 at 12-16). The LCA requires the
employer to certify, among other things, that it will “[p]rovide working conditions for
nonimmigrants which will not adversely affect the working conditions of workers similarly

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employed.” (Doc. 1-2 at 14). Moore contends that, because she and her WDPR IT department
co-workers were terminated when Cognizant’s H-1B visa-holding employees began doing the IT
work, the U.S. workers were “adversely affect[ed]” by the nonimmigrants, and therefore
Cognizant’s certification to the contrary in the LCA was false.
In addition, certain employers that are “H-1B dependent” 1 are required to make the
following certifications in the LCA:
(A) Displacement: The employer will not displace any similarly
employed U.S. worker within the period beginning 90 days before
and ending 90 days after the date of filing a petition for an H-1B
nonimmigrant supported by this application.
(B) Secondary Displacement: The employer will not place any H-1B
nonimmigrant employed pursuant to this application with any other
employer or at another employer’s worksite UNLESS the employer
applicant first makes a bona fide inquiry as to whether the other
employer has displaced or intends to displace a similarly employed
U.S. worker within the period beginning 90 days before and ending
90 days after the placement, and the employer applicant has no
contrary knowledge.
…
(C) Recruitment and Hiring: Prior to filing any petition for an H-1B
nonimmigrant pursuant to this application, the employer took or will
take good faith steps meeting industry-wide standards to recruit U.S.
workers for the job for which the nonimmigrant is sought, offering
compensation at least as great as required to be offered to the H-1B
nonimmigrant. The employer will (has) offer(ed) the job to any U.S.
worker who (has) applied and is equally or better qualified that the
H-1B nonimmigrant.

1

The regulations define “H-1B dependent employer” as, among other things, one that has
at least 51 full-time equivalent employees in the United States and for whom H-1B nonimmigrants make up at least 15 percent of its work force. 20 C.F.R. § 655.736(a)(iii). Cognizant
does not dispute that it is an “H-1B dependent” employer. (Doc. 25 at 12).

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(Doc. 1-2 at 8-9). Moore asserts that, because she and her WDPR co-workers were replaced by
the Cognizant workers, Cognizant must have lied when it made the “displacement” certification in
the LCA. (Doc. 1 at 9).
Cognizant contends that Moore has misunderstood the relevant law, and therefore the
LCAs it filed in connection with this matter did not contain false statements. As to the first
alleged false statement in that form – the certification that Cognizant would provide working
conditions for the nonimmigrants that would not adversely affect the working conditions of
workers similarly employed – Cognizant argues that this only applies to workers employed by the
same employer. 2 In other words, the certification would only apply to the working conditions of
Cognizant employees, not those of WDPR employees such as the Plaintiff. The relevant
regulations support Cognizant’s interpretation: Pursuant to 20 C.F.R. § 655.732(a), the LCA’s
working conditions requirement
shall be satisfied when the employer affords working conditions to
its H–1B nonimmigrant employees on the same basis and in
accordance with the same criteria as it affords to its U.S. worker
employees who are similarly employed, and without adverse effect
upon the working conditions of such U.S. worker employees.
Thus, even assuming arguendo that the working conditions of WDPR employees were adversely
affected when the Cognizant employees were brought in, Cognizant’s “working conditions”
certification in the LCAs was not false. The only way for that certification to be false would be if
the working conditions of Cognizant’s U.S. worker employees were adversely affected.

2

It is also not clear that losing one’s job – which is what the Plaintiff is truly complaining
about here – would constitute “an adverse effect on working conditions.” The phrase “working
conditions” generally refers to things such as vacation time and seniority, rather than simply
continued employment. However, the Court need not resolve this issue, as the Plaintiff has
alleged that her working conditions were “vastly affected” by the H-1B visa holders, in that she
“had to train the visa holder every day” and that “she was subjected to a hostile work environment
where she was being forced to train foreigners to do her job.” (Doc. 42 at 3-4).

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Turning to the “displacement” certification in that form, Cognizant argues that this
certification is only required of H-1B dependent employers who are bringing in non-exempt
workers, and that it made no such certification because the employees it was bringing in to do the
work for WDPR were all exempt. 3 Cognizant is correct as to the law. See 20 C.F.R.
§ 655.737(a) (stating that displacement attestation requirement does not apply to an employer
filing an LCA only for employment of exempt H-1B nonimmigrants).
Moore does not dispute the legal point – i.e., that the LCA’s displacement certification
requirement only applies in regard to non-exempt workers. However, she contends that, in her
Complaint, she alleged that Cognizant falsely claimed that all of its non-immigrant workers were
exempt, when some were actually non-exempt. (Doc. 42 at 7). But a review of the Complaint –
including the paragraphs cited by the Plaintiff in regard to this point – finds no such allegations.
To the contrary, the Plaintiff mentions additional attestation requirements in a footnote, and then
suggests that Cognizant was not required to make those attestations “because [the additional]
attestation requirements do not apply to LCAs filed by the employer solely for the employment of
an “exempt” H-1B nonimmigrant”. (Doc. 1 at 5 n. 3). In other words, the Plaintiff herself
asserts that all of Cognizant’s H-1B nonimmigrants were exempt. As such, Cognizant would not
have been required to make the “displacement” certification in regard to them.
Finally, Moore alleges that Cognizant also made false statements on ETA Form 750s it
submitted as part of the same process. (Doc. 1 at 5). Moore attached a blank ETA Form 750 to
the Complaint. (Doc. 1-2 at 17-21). Section 23 of that form requires that the employer certify
that the job opportunity at issue “has been and is clearly open to any qualified U.S. worker,” while
3

An H-1B nonimmigrant is “exempt” if he or she is paid at least $60,000 per year and has
obtained at least a master’s degree in a specialty related to the intended employment. 20 C.F.R.
§ 655.737.

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Section 32 requires a certification that the job opportunity “does not involve unlawful
discrimination by race, creed, color, national origin, age, sex, religion, handicap, or citizenship.”
(Doc. 1-2 at ). Moore alleges that Cognizant must have filed ETA Form 750s and made false
certifications as to those two issues, though she does not explain why such certifications would
necessarily have been false. (Doc. 1 at 5-6, 10). Cognizant argues in its motion that it did not
file any (and therefore did not make any false certifications in such documents) because the law
did not require it to do so. (Doc. 27 at 3-4). Moore appears to concede that Cognizant is correct
as to this point, as she does not contradict it in his response to the motion.
Thus, the Court finds that none of the allegedly false statements put at issue in the
Complaint are adequate to support a civil RICO claim. The first – the working conditions
certification in the LCAs – was not false because it did not apply to WDPR employees. The
second – the displacement certification in that same form – would not have been made in regard to
exempt workers, and the Plaintiff has pled that Cognizant only brought in exempt workers. And
finally, the Plaintiff has apparently conceded that Cognizant was not required to file the ETA
Form 750s, which contained the other allegedly false statements.
The failure of these alleged predicate acts is fatal to the civil RICO claim (Count I), which
must be dismissed. Counts II and III are, in essence, claims that Cognizant and WDPR conspired
to violate the immigration laws by making these false statements. Thus, those counts must also
be dismissed. As this is the Plaintiff’s initial complaint, the dismissal will be without prejudice.
IV.

Conclusion

In consideration of the foregoing, it is hereby
ORDERED that on the motions to dismiss filed by Defendant Cognizant Technology
Solutions U.S. Corporation (Doc. 25) and Defendant Walt Disney Parks and Resorts U.S., Inc.

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(Doc. 35) are GRANTED as set forth above, and the Complaint (Doc. 1) is DISMISSED
WITHOUT PREJUDICE. Should the Plaintiff wish to file an amended complaint, he must do
so on or before October 24, 2016.

DONE and ORDERED in Chambers, Orlando, Florida on October 13, 2016.

Copies furnished to:
Counsel of Record
Unrepresented Party

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