Segabandi v. Pinnacle Technical Resources, Inc.

Filing 90

OPINION, MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that Defendant's Motion for Summary Judgment, [Doc. No. 51 ] is GRANTED as to Count I. IT IS FURTHER ORDERED that the remaining counts are dismissed without prejudice. A separate judgment and dismissal order will be entered this same date. Signed by District Judge Henry Edward Autrey on 7/1/2016. (GGB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DURGA PRASAD SEGABANDI,
Plaintiff,
v.
PINNACLE TECHNICAL
RESOURCES, INC.
Defendant.

)
)
)
)
)
)
)
)
)
)

No. 4:14CV1082 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Defendant’s Motion for Summary
Judgment, [Doc. No. 51]. Plaintiff opposes the motion and the matter is fully
briefed. For the reasons set forth below, the Motion is granted.
Facts and Background
Plaintiff Durga Prasad Segabandi is from India. Segabandi worked for
Defendant Pinnacle Technical Resources, Inc. through the H-1Bvisa program
beginning in 2006. Plaintiff’s initial H-1B with Pinnacle was from January 2006
through January 2009. Pinnacle employed Plaintiff over a seven-year period from
2006 to 2013, with four separate assignments. For each assignment, Pinnacle
issued Plaintiff an offer letter stating the relevant details of the position offered,
including the wage rate.
Plaintiff admits he received and accepted an offer letter for each assignment.

Plaintiff also admits he was paid at or above the hourly wage rates set out in
His offer letters at all times during his employment with Pinnacle and that he was
compensated for all hours he worked. Plaintiff was not paid time when he was not
working, nor were benefits paid during these periods.
Pinnacle sponsored Plaintiff’s H-1B visa from 2006-2012. As required by
the H-1B sponsorship process, Pinnacle submitted documents to the Department of
Homeland Security (“DHS”) regarding its employment of Plaintiff. These
documents identified Plaintiff’s pay rate and the prevailing wage for the positions
he would occupy. Plaintiff was neither involved in preparing these immigration
documents, nor in determining the prevailing wages; nor were those details
discussed with him. In fact, the information was not provided to Plaintiff until after
the H-1B applications were submitted to DHS.
Plaintiff also admits he signed Pinnacle’s onboarding documents, including
its Terms of Employment and an acknowledgement that he received a copy of the
employee handbook. The Terms of Employment stated, “Pinnacle shall not pay
any business -related expenses without prior written authorization from Pinnacle.
Verbal approvals or client approvals are not sufficient.”
After completing the visa transfer, in February 2006 Plaintiff began working
for Pinnacle as a Unix Administrator providing services to one of Pinnacle’s
clients in Missouri. Plaintiff acknowledges Pinnacle paid him $34.00 per hour
[2]

($70,720 annualized) plus benefits for all hours he worked.
Plaintiff began his second assignment with Pinnacle on August 22, 2008 as a
Unix Administrator for another Pinnacle client in Missouri. Plaintiff was paid for
all hours at $40.00 per hour ($83,200 annualized) plus benefits.
Plaintiff next worked on another assignment with Client A. The position
was a Unix Administrator position in Missouri, and Plaintiff was paid $40.00
per hour ($83,200 annualized).
Plaintiff admits he does not know of a situation in which Pinnacle paid
someone when they were not working—regardless of their citizenship or national
origin.
Pinnacle issued Plaintiff an offer letter for $31.00 per hour ($64,480
annualized). Plaintiff accepted the offer and began working for GIS/Seagate in
February 2010. Plaintiff admits Pinnacle paid him $31.00 per hour for all hours he
worked on this assignment.
In December 2011, Plaintiff received an email from a paralegal at his
immigration counsel’s office containing language his immigration counsel said
needed to be included in an “Employment Letter” to be provided to DHS in
support of Plaintiff’s application for a green card. The language the paralegal
provided read, “This is to certify that Durga Segabandi is employed by Pinnacle
Technical Resources, Inc. as a Programmer Analyst. Upon obtaining Permanent
[3]

Residence status, his salary will be $85,634 per year.” Plaintiff asked Pinnacle
employee Jessica Narvaez to prepare the letter, email or fax a copy to his
attorney’s office, and send the original to his home address. Narvaez complied
with Plaintiff’s request.
On March 8, 2013, Plaintiff voluntarily resigned his employment with
Pinnacle.
Plaintiff contacted an attorney who prepared and filed a charge of
discrimination against Pinnacle with the EEOC. The EEOC charge states, “While
employed by Pinnacle I was paid approximately $20,000.00 less than the
minimum annual salary for an employee with my experience and technical abilities
because I am a non-U.S. citizen and initially was not a permanent resident of the
U.S.” Plaintiff also alleged, “The only reason Pinnacle refused to pay me the
minimum salary was because my nationality is other than U.S. citizen.”
In the LCA submitted on January 6, 2006, Pinnacle identified the prevailing
wage for a Programmer Analyst in the St. Louis area as $63,981.00 and indicated
that Plaintiff’s wage rate would be $68,000.00 per year. After that LCA was
presented to DHS, Pinnacle offered and Plaintiff accepted employment with
Pinnacle at a rate of $34.00 per hour plus benefits.
On September 12, 2008, Pinnacle submitted another LCA to extend
Plaintiff’s H-1B Visa through January 2012. (Ex. F). In this LCA, Pinnacle
[4]

represented the prevailing wage for a Programmer Analyst in the St. Louis area to
be $81,765.00 and indicated that Plaintiff would be paid between $81,765.00 and
$86,000.00 per year. At the time Pinnacle made these representations to DHS,
Plaintiff was assigned by Pinnacle to work for a client at a rate of $40.00 per hour
plus benefits.
The final LCA submitted by Pinnacle is dated January 19, 2012. (Ex. S at 4).
In this LCA, Pinnacle represented the prevailing wage for a Programmer Analyst
to be $54,579.00 and indicated Plaintiff would be paid $1,240 per week. At the
time this LCA was submitted to DHS, Plaintiff was working at a rate of $31.00 per
hour plus benefits.
After receiving the original Employment Letter, Plaintiff did nothing to
change his position. Indeed, during his deposition, Plaintiff admitted he took no
action in response to receiving the Employment Letter aside from filing the
document in his records. Plaintiff inquired about several in-house positions at
Pinnacle that he was willing to work and also brought several outside positions that
he was interested in working to Pinnacle.
In January 2006, Pinnacle submitted a Petition for Nonimmigrant Worker,
Form I-129, to the Department of Homeland Security indicating that it would
employ Durga Segabandi from January 27, 2006 to

[5]

January 18, 2009, in which it indicated that it would pay Segabandi $68,000 per
year.
In January 2006, Pinnacle also submitted Form ETA9035E, Labor Condition
Application for H-1B & H-1B1 Nonimmigrants, in which it indicated the
prevailing wage for “Programmer Analyst” workers in Segabandi’s position to be
$63,981.00, which is the minimum amount that must be paid to the Nonimmigrant
worker.
Upon submitting the LCA, Pinnacle declared that it would “[p]ay
nonimmigrants at least the local prevailing wage or the employer’s actual wage,
whichever is higher, and pay for non-productive time” and that it would “[o]ffer
nonimmigrants benefits on the same basis as U.S. workers.” Pinnacle was
required to update the Labor Condition Application if Mr. Segabandi’s position
had changed.
Pinnacle did not pay Plaintiff his wages and medical benefits during the
period July 2008 through August 2008 when Segabandi was in a non-productive
status.
Pinnacle did not update the LCA during the period Segabandi was not
working from July 2008 through August 2008 and again from April 2009 through
February 2010.

[6]

In the fall of 2008 Pinnacle submitted another LCA indicating that it would
employ Segabandi from January 19, 2009 through January 18,
2012; it also indicated that Segabandi’s rate of pay was $81,765.00,
equivalent to the prevailing wage for Programmer Analysist in St. Louis.
In January 2009, Pinnacle submitted another Petition for Nonimmigrant
Worker, Form I-129, to the Department of Homeland Security indicating that it
would employ Segabandi from January 19, 2009 through January 18, 2012, in
which it indicated that it would pay Segabandi $83,200.00 per year.
In support of the H-1B/I-129 Extension on behalf of Segabandi, Pinnacle
submitted a letter to U.S. Citizenship & Immigrations Service, dated
September 9, 2008, signed by Jessica Navarez, V.P. of Human Resources for
Pinnacle, indicating that “Pinnacle Technical Resources, Inc. wishes to retain Mr.
Durga Segabandi's temporary professional employment for a projected 36-month
period as a Programmer Analyst at a salary of $83,200 per year.”
Pinnacle issued an employment verification letter dated March 10, 2009 in
which it confirmed Durga Segabandi had been rehired by Pinnacle at a rate of
$40.00 per hour, or approximately $83,200.00 per year.
Plaintiff’s H1-B Visa was extended in response to Pinnacle’s application for
the period January 19 2009 through January 18, 2012. The Department of
Homeland Security issued an Approval Notice for the H-1B Extension Application
[7]

for the period January 19, 2009 through January 18, 2012, indicating that "The
foreign worker can work for the petitioner, but only as detailed in the petition for
the periods authorized. Any change in employment requires a new petition"
Pinnacle assigned Segabandi to work at AT&T, a second time, in February
2009.
Pinnacle issued an employment verification letter dated March 10, 2009 in
which it confirmed Segabandi had been rehired by Pinnacle at a rate of $40.00 per
hour, or approximately $83,200.00 per year. The assignment at AT&T ended on
April 10, 2009.
Segabandi did not have an assignment from April of 2009 through February
of 2010. Pinnacle did not pay Segabandi from April 10, 2009 through February of
2010. Pinnacle did not update the LCA during the period Segabandi was not
working from April 2009 through February 2010.
Pinnacle told Segabandi to look for his own job assignments. Plaintiff
brought several assignment opportunities to Pinnacle during the period from April
2009 through February 2010, however, Pinnacle told Plaintiff the assignments
were not feasible and did not assign him to those projects. Segabandi asked his
manager Kyle Pittenger that if Pinnacle was not going to assign him, if they could
give him a job in-house at Pinnacle. Segabandi identified several in-house

[8]

positions within Pinnacle that he would be willing to work and informed Kyle
Pittenger that he would like to be placed in these positions; however,
Pittenger never replied to his request.
Segabandi identified an assignment at a company called Seagate, which he
brought to Pinnacle in February 2010. The position at Seagate involved several
“middlemen” companies, whereby Seagate had contracted with a company GAVS;
GAVS then contracted with Global Information Systems (GIS); and GIS then
contracted with Pinnacle for the position. Pinnacle paid Segabandi a wage of only
$31.00 per hour, or approximately $64,480 per year, while he worked at Seagate
because of the numerous middlemen. Pinnacle did not update the LCA
when it began paying Segabandi only $31.00 per hour instead of the $40 per hour
previously stated in the January 2009 LCA, until it filed a subsequent LCA almost
2 years later, in January 2012.
In January 2012, Pinnacle submitted a third LCA to the Department of
Homeland Security indicating that it would employ Segabandi from January 19,
2012 to January 18, 2015, and that it would pay Segabandi $1240 per week, or
approximately $64,480 per year.
In the January 2012 LCA, Pinnacle represented that Segabandi’s then
current position was only a Level II wage level for which the prevailing wage was
only $54,579.00.
[9]

Previous LCA forms submitted by Pinnacle had Segabandi at the higher
wage Level IV for which the prevailing wage was $81,765.00 and
$85,634.00.
In total, Pinnacle submitted three applications for Segabandi’s
H-1B Visas, one for the period 2006 through 2009, one for the period 2009
through 2012 and one for the period 2012 through 2015.
Prior to Segabandi working for Pinnacle in 2006, Pinnacle represented to
him that it would sponsor his Immigrant Petition for Alien Worker, or green card”
processing, as they do for other foreign workers.
Segabandi claims to have relied upon Pinnacle’s representation that it would
handle his green card processing in his decision to go to work for Pinnacle.
Pinnacle sponsored Segabandi’s Immigrant Petition for Alien Worker, or
“green card.” Jessica Navarez, asked the attorney to begin the Green Card
application process. Attorney Susan Lane represented Pinnacle
and Segabandi in regards to Segabandi’s green card application. James
Humrichouse, President of Pinnacle, issued a letter to the U.S. Citizenship &
Immigration Services, dated April 24, 2008, in which it indicated that had the
ability to pay Segabandi $85,634 per year, that it continued to have that ability and
that its economic condition was sound with sufficient ability to pay the $85,634
wage. Ximena Vaca, CEO of Pinnacle, executed a letter dated December 12, 2011
[10]

certifying that Segabandi was employed at Pinnacle Technical Resources, Inc. as a
Programmer Analysist and upon obtaining his permanent Residence status; his
salary will be $85,634 per year. Pinnacle gave a copy of this letter to Segabandi.
Pinnacle did not pay for any of Segabandi’s green card expenses
even though they generally pay the fees for all applicants. Segabandi received his
green card in February of 2012.
Plaintiff requested that Pinnacle raise his rate above the $31 per hour.
Pinnacle did not raise Segabandi’s rate above the $31 per hour that he was being
paid after he received his green card.
Plaintiff’s manager, Kyle Pittenger, made statements to Segabandi that he
was unfit to work for AT&T, that Segabandi interpreted to be a slur or racial
epithet related to his national origin. Segabandi asked Pittenger if he told him he
was “unfit” because of his nationality, and Pittenger did not respond.
Segabandi interpreted Pinnacle’s failure to pay his salary and refusal to give
him an assignment to be discriminatory because of his national origin. Segabandi
interpreted Pinnacle’s Vice President Freddie Vaca’s refusal to pay Segabandi’s
green card expenses to be discriminatory because of his national origin.
Segabandi interpreted Jessica Navarez’s refusal to respond to Segabandi’s
email communications to be discriminatory because of his national origin.

[11]

Segabandi interpreted Pinnacle’s failure to pay him at the rate of $85,634 per
year after getting his permanent resident status as it had promised, to be
discriminatory because of his national origin.
Segabandi decided to leave Pinnacle because he believed he was not being
treated fairly and because he was not being paid what he believed they had
promised him as indicated on his green card, ETA 9098 document.
Plaintiff brings this action seeking damages for the alleged violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq.
Additionally, Plaintiff alleges Missouri State law claims: violation of the Missouri
Human Rights Act, § 213.010 R.S. Mo. et seq.; breach of contract; fraudulent
misrepresentation; and quantum meruit.
Plaintiff claims Defendant failed to pay him the wages listed in the LCA
forms; failed to pay him for periods he was in a nonproductive status; Defendant
failed to pay him prevailing wages; and Defendant failed to pay him benefits or
allow him to be eligible for benefits on the same basis as its U.S. workers. Plaintiff
claims that he was not paid equivalently to similarly situated individuals
Standard of Review
Summary judgment is proper if the evidence, viewed in the light most
favorable to the nonmoving party, demonstrates no genuine issue of material fact
exists and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P.
[12]

56(c); Cordry v. Vanderbilt Mortg. & Fin., Inc., 445 F.3d 1106, 1109 (8th
Cir.2006) (quoting Bockelman v. MCI Worldcom, Inc., 403 F.3d 528, 531 (8th
Cir.2005)). The proponent of a motion for summary judgment “bears the initial
responsibility of informing the district court of the basis for its motion, and
identifying those portions of ‘the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any,’ which it believes
demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986) (quoting Fed.R.Civ.P. 56(c)). The proponent
need not, however, negate the opponent's claims or defenses. Id. at 324–25.
In response to the proponent's showing, the opponent's burden is to “come forward
with ‘specific facts showing that there is a genuine issue for trial.’” Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting
Fed.R.Civ.P. 56(e)). A “genuine” dispute of material fact is more than “some
metaphysical doubt as to the material facts.” Id. at 586.
“[T]here is no issue for trial unless there is sufficient evidence favoring the
nonmoving party for a jury to return a verdict for that party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249 (1986). “If the evidence is merely colorable ... or is
not significantly probative ... summary judgment may be granted.” Id. at 249–50
(citations omitted).
Discussion
[13]

Plaintiff alleges that he was discriminated against based on his national
origin, which caused him to leave his employment with Defendant.
Title VII makes it “an unlawful employment practice for an employer ... to
discharge any individual ... because of such individual's ... national origin.” 42
U.S.C. § 2000e–2(a)(1). Absent direct evidence of discrimination, the Court
applies the McDonnell Douglas, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668
(1973). Lockridge v. Bd. of Trs. of Univ. of Ark., 315 F.3d 1005, 1010 (8th Cir.
2003) (en banc). Under this framework, Plaintiff bears the burden of establishing a
prima facie case of discrimination. Torgerson v. City of Rochester, 643 F.3d 1031,
1046 (8th Cir. 2011) (en banc). The burden of production then shifts to the
defendants to “articulate a legitimate, non- discriminatory reason” for their actions.
Dixon v. Pulaski Cty. Special Sch. Dist., 578 F.3d 862, 868 (8th Cir. 2009). “‘If the
defendant articulates such a reason, the burden returns to the plaintiff to show the
defendant's proffered reason is pretextual.’ McGinnis v. Union Pac. R.R., 496 F.3d
868, 873 (8th Cir. 2007).” Henry v. Hobbs, No. 15-1472, 2016 WL 3064567, at
*2-3 (8th Cir. May 31, 2016).
Likewise, the MHRA prohibits an employer from discriminating against an
employee on the basis of that employee's national origin. Mo.Rev.Stat.
§213.055.1(1)(a). In order to prevail in a suit under this provision, a plaintiff must
demonstrate that (1) he suffered an adverse employment action; (2) his national
[14]

origin was a contributing factor in that adverse action; and (3) he incurred damages
as a direct result. See Daugherty v. City of Maryland Heights, 231 S.W.3d 814,
820 (Mo.2007). With respect to the second element, the Missouri Supreme Court
has recognized that the “contributing factor” standard, which stems from the
MHRA's prohibition of “any unfair treatment,” is less rigorous than the
“motivating factor” standard employed in federal discrimination cases under Title
VII. Id. at 819. This distinction has led Missouri to abandon the McDonnell
Douglas burden-shifting analysis applied in federal cases. Templemire v. W & M
Welding, Inc., 433 S.W.3d 371, 383 (Mo.2014) (citing McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). Instead, if
“consideration of [a] protected characteristic[ ] contributed to the unfair treatment,
that is sufficient.” Daugherty, 231 S.W.3d at 819. Denn v. CSL Plasma, Inc., 816
F.3d 1027, 1032-33 (8th Cir. 2016).
Plaintiff fails to present any evidence that he was treated differently than
any other employee. While attempting to establish that he was treated differently,
Plaintiff presents instances which he “interpreted” as discriminatory. Plaintiff
himself attempts to classify actions as discriminatory, and appears to be goading
employees to make discriminatory statements. Plaintiff cites Jessica Narvaez’s
failure to respond to his emails as based on his national origin. The mere fact that
Ms. Navaez may not have responded to Plaintiff’s emails, without more, does
[15]

nothing to establish discriminatory actions. An employee who fails to respond to
an email does not subject her employer to liability for discrimination. Similarly,
when urged by Plaintiff to acknowledge that his comments that Plaintiff was unfit
for an assignment, Kyle Pittenger’s lack of response does not transform into
evidence of national origin discrimination. Pittenger actually clarified the
statement by explaining that he was merely relaying a decision reached by
Defendant’s client.
No employee of Defendant was paid when the employee was not working.
Ergo, this basis for Plaintiff’s claim that he was discriminated against based on his
national origin fails. To the contrary, Plaintiff was treated exactly as similarly
situated non-Indian employees.
The Court cannot even assume for the purposes of analysis that Plaintiff has
made a prima facie case of discrimination. The only examples of any reference to
Plaintiff’s national origin in this record are Plaintiff’s attempts to categorize nonissues as issues of discriminatory animus. In colloquial terms, Plaintiff appears to
be attempting to “set up” Defendant for a lawsuit. Defendant is entitled to
judgment as a matter of law, pursuant to Rule 56 of the Federal Rules of Civil
Procedure on Plaintiff’s Title VII claim.
With respect to Plaintiff’s remaining Missouri state law claims, the Court
will decline to exercise supplemental jurisdiction, the basis for the Court’s
[16]

jurisdiction. The remaining claims are state law-based claims of national origin
claims under the MHRA, breach of contract, fraudulent misrepresentation, and
quantum meruit. “A federal district court has discretionary power to decline the
exercise of supplemental jurisdiction where the court has ‘dismissed all claims
over which it has original jurisdiction.’” Wilson v. Miller, ––– F.3d ––––, ––––,
No. 15–1415, 2016 WL 1621952, at *6 (8th Cir. Apr. 25, 2016) (quoting 28 U.S.C.
§ 1367(c)(3)). The factors a court should consider in deciding whether to exercise
jurisdiction over pendent state law claims are “judicial economy, convenience,
fairness, and comity.” Carnegie–Mellon Univ. v. Cohill, 484 U.S. 343, 350, 108
S.Ct. 614, 98 L.Ed.2d 720 (1988). “[I]n the usual case in which all federal-law
claims are eliminated before trial, the balance of factors to be considered...will
point toward declining to exercise jurisdiction over the remaining state-law
claims.” Id. at 350 n. 7, 108 S.Ct. 614; see also id. (stating that the factors to be
considered under the pendent jurisdiction doctrine “usually will favor a decision to
relinquish jurisdiction when ‘state issues substantially predominate, whether in
terms of proof, of the scope of the issues raised, or the comprehensiveness of the
remedy sought’ ” (quoting United Mine Workers of Am. v. Gibbs, 383 U.S. 715,
726 (1966)). When declining to exercise supplemental jurisdiction under §
1367(c), the court can decide to dismiss the remaining claims without prejudice or
remand those claims to state court. Lindsey v. Dillard's, Inc., 306 F.3d 596, 599
[17]

(8th Cir.2002); St. John v. Int'l Ass'n of Machinists & Aerospace Workers, 139
F.3d 1214, 1217 (8th Cir.1998); Graham v. Hubbs Mach. & Mfg., Inc., No. 4:14CV-419 (CEJ), 2016 WL 2910209, at *8 (E.D. Mo. May 19, 2016). Based on the
factors outlined above, the Court will decline to exercise supplemental jurisdiction
over the remaining state law claims. Said claims will be dismissed without
prejudice.
Conclusion
Plaintiff has failed to present any evidence of any discriminatory conduct on
the part of Defendant. Defendant is therefore entitled to judgment as a matter of
law. Plaintiff has failed to meet his burden of “com[ing] forward with ‘specific
facts showing that there is a genuine issue for trial.’” Matsushita Elec. Indus. Co.
Corp., 475 U.S. at 587. Plaintiff has failed to produce a “genuine” dispute of
material fact that is more than “some metaphysical doubt as to the material facts.”
Id. at 586.
Accordingly,
IT IS HEREBY ORDERED that Defendant’s Motion for Summary
Judgment, [Doc. No. 51] is GRANTED as to Count I.
IT IS FURTHER ORDERED that the remaining counts are dismissed

[18]

without prejudice.
A separate judgment and dismissal order will be entered this same date.
Dated this 1st day of June, 2016.

_____________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

[19]