PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

OBIORA E. EGBUNA,
Plaintiff-Appellant,

v.

TIME-LIFE LIBRARIES, INCORPORATED,
                                                                      No. 95-2547
Defendant-Appellee.

EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
Amicus-Curiae.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Albert V. Bryan, Jr., Senior District Judge.
(CA-95-197)

Argued: March 4, 1997

Decided: August 19, 1998

Before WILKINSON, Chief Judge, RUSSELL, WIDENER,
MURNAGHAN, ERVIN, WILKINS, NIEMEYER, HAMILTON,
LUTTIG, WILLIAMS, MICHAEL, and MOTZ, Circuit Judges, and
HALL, Senior Circuit Judge.*

_________________________________________________________________

Affirmed by published per curiam opinion, in which Chief Judge Wil-
kinson, Judge Widener, Judge Wilkins, Judge Niemeyer, Judge Ham-
_________________________________________________________________
*The opinion in this case was prepared by Circuit Judge Donald S.
Russell. Judge Russell died prior to the time the decision was filed. The
remaining members of the court majority continue to concur in his opin-
ion.
ilton, Judge Luttig, Judge Williams, and Senior Judge Hall joined.
Judge Ervin wrote a dissenting opinion, in which Judge Murnaghan,
Judge Michael, and Judge Motz joined.

_________________________________________________________________

COUNSEL

ARGUED: John P. Racin, WEISSBRODT, RACIN & MIELKE,
Washington, D.C., for Appellant. Paul D. Ramshaw, Appellate Ser-
vices Division, EQUAL EMPLOYMENT OPPORTUNITY COM-
MISSION, Washington, D.C., for Amicus Curiae. Donald R.
Livingston, AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P.,
Washington, D.C., for Appellee. ON BRIEF: Nina J. Ginsberg,
DIMURO, GINSBERG & LIEBERMAN, P.C., Alexandria, Virginia,
for Appellant. C. Gregory Stewart, General Counsel, Gwendolyn
Young Reams, Associate General Counsel, Vincent J. Blackwood,
Assistant General Counsel, Samuel A. Marcosson, Office of General
Counsel, EQUAL EMPLOYMENT OPPORTUNITY COMMIS-
SION, Washington, D.C., for Amicus Curiae. Lawrence D. Levien,
Neil J. Welch, Jr., Harry J. F. Korrell, AKIN, GUMP, STRAUSS,
HAUER & FELD, L.L.P., Washington, D.C., for Appellee.

_________________________________________________________________

OPINION

PER CURIAM:

Obiora E. Egbuna brought this employment discrimination action
against his former employer, Time-Life Libraries Inc. ("TLLI"), alleg-
ing that TLLI refused to rehire him in retaliation for his having partic-
ipated in another employee's discrimination suit against TLLI. The
district court granted summary judgment to TLLI finding that Egbuna
had not established a prima facie case of employment discrimination.
A panel of our circuit reversed the district court's ruling. Before the
case was remanded to the district court, however, a majority of this
court granted a rehearing en banc. This decision follows.

                     2
I.

TLLI hired Egbuna, a Nigerian national, in June 1989. When TLLI
hired Egbuna, he possessed a valid student work visa issued by the
Immigration and Naturalization Service ("INS"). Although Egbuna's
work visa expired six months after he was hired, TLLI apparently
failed to note that it had expired, and Egbuna continued to work for
TLLI until April 1993.1

During Egbuna's employment with TLLI, a subordinate of Egbuna,
Harrison Jackson, told Egbuna that he had been sexually harassed by
a supervisory employee. Egbuna failed to report these complaints to
higher management, or to TLLI's Human Resources Department, in
violation of company policy. But when TLLI investigated Jackson's
allegations, after Jackson filed a charge of discrimination against
TLLI with the Equal Employment Opportunity Council alleging that
he had been the victim of unlawful sexual harassment in the work-
place, Egbuna corroborated many of Jackson's allegations.

In April 1993, Egbuna voluntarily resigned from TLLI because he
intended to return to Nigeria. When his plans changed, he approached
TLLI in June 1993 about reemployment. At that time, Egbuna was
still unauthorized to work in the United States, because he had never
attempted to renew his visa.2 On the twenty-first of July, TLLI
informed Egbuna that he would not be hired.

Contending that TLLI had extended him an employment offer on
July nineteenth and withdrew the offer on the twenty-first because
Egbuna had corroborated many of Jackson's allegations of sexual
harassment, Egbuna sued TLLI for violating section 704(a) of Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a). Section
2000e-3 provides that discrimination by an employer against an
employee or applicant for employment who has participated in a Title
_________________________________________________________________
1 The record reveals that TLLI's hiring policy was to refuse uniformly
to hire prospective alien employees who fail to produce valid identifica-
tion and proof of authorization for employment.
2 Egbuna's deposition reveals that he never attempted to renew his visa
because he feared deportation and did not want to alert the authorities of
his illegal immigration status.

                    3
VII investigation, proceeding, or hearing constitutes an unlawful
employment practice.

TLLI moved for summary judgment on the grounds that it never
made Egbuna an offer on July 19, 1993, and that even if TLLI had
extended an offer to Egbuna, TLLI could not have employed him
because of his undocumented alien status. The district court granted
TLLI's motion. Relying on McDonnell Douglas Corp. v. Green,3 the
district court found that Egbuna could not demonstrate that he was a
victim of discrimination, because at the time he sought employment,
Egbuna was unqualified for the position he sought by virtue of his
failure to possess legal documentation authorizing him (an alien) to
work in the United States.4

II.

We review the grant of summary judgment de novo .5 TLLI is enti-
tled to summary judgment if there is no genuine issue of material fact
for trial and TLLI is entitled to summary judgment as a matter of law.6
To be successful in its motion for summary judgment, TLLI must
show the absence of evidence to support Egbuna's case.7 Conversely,
to defeat TLLI's motion, Egbuna must demonstrate the existence of
a genuine trial issue of fact without relying upon mere allegations or
denials of his pleading.8 We may affirm the grant of summary judg-
ment on grounds other than those relied upon by the district court.9
_________________________________________________________________
3 411 U.S. 792 (1973).
4 Egbuna was eventually granted temporary work authorization in Janu-
ary 1994, in connection with his application for political asylum. Thus,
from December 1989 through January 1994, Egbuna was unemployable
in the United States.
5 Nguyen v. CNA Corp., 44 F.3d 234, 236 (4th Cir. 1995).
6 Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-323
(1986).
7 Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994).

8 Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986). See also
Shaw, 13 F.3d at 798 ("A mere scintilla of evidence supporting the case
is insufficient.").
9 Keller v. Prince George's County, 923 F.2d 30, 32 (4th Cir. 1991).

                    4
Allegedly TLLI offered Egbuna a job in July 1993 and then
rescinded its offer two days later because Egbuna had participated in
Jackson's suit against TLLI.10 Egbuna maintains these facts present a
classic case of retaliation. We find, however, that Egbuna has no
cause of action because his undocumented status rendered him ineli-
gible both for the remedies he seeks and for employment within the
United States.

Pursuant to Title VII, a plaintiff may seek equitable remedies from
the courts for the discriminatory employment practices of an employer.11
The remedies include the hiring of the applicant, reinstatement, back
pay, and injunctions against further violations. 12 The goal of awarding
these equitable remedies is to make the complainant whole without
imposing large monetary penalties upon the employer. 13

A plaintiff is entitled to the above remedies only upon a successful
showing that the applicant was qualified for employment. When the
applicant is an alien, being "qualified" for the position is not deter-
mined by the applicant's capacity to perform the job-- rather, it is
determined by whether the applicant was an alien authorized for
employment in the United States at the time in question. Congress so
declared in the Immigration Reform and Control Act of 1986
("IRCA"), which was enacted to reduce the influx of illegal immi-
grants into the United States by eliminating the job magnet.14 IRCA
declares it unlawful for employers to employ, recruit, or refer for a
fee all unauthorized aliens.15 IRCA identifies unauthorized aliens as
_________________________________________________________________
10 Conspicuously, the individual who allegedly made the offer and
revocation of employment, and who indicated TLLI did not hire Egbuna
for retaliatory reasons, was neither deposed by Egbuna nor named on his
witness lists.
11 42 U.S.C.A. § 2000e-5(g) (1994).
12 Id.

13 Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) (Title VII reme-
dies serve to restore the complainant to the position he would have been
in absent the discrimination).
14 Statement by President Ronald Reagan Upon Signing S. 1200, 22
Weekly Comp.Pres.Doc. 1534, (Nov. 10, 1986).

15 8 U.S.C.A. § 1324a (West Supp. 1997).

                    5
those individuals who at the particular time relating to employment
are aliens neither lawfully admitted for permanent residence, nor
authorized to be so employed by IRCA or by the Attorney General.16

To ensure, therefore, that employers do not hire unauthorized
aliens, IRCA mandates that employers verify the identity and eligibil-
ity to work of each new-hire by examining specified documents
before they begin work.17 If an alien applicant is unable to present the
required documentation, the unauthorized alien cannot be hired.18
Similarly, if an employer unknowingly hires an unauthorized alien, or
if the alien becomes unauthorized while employed, the employer is
compelled to discharge the worker upon discovery of the worker's
undocumented status.19 IRCA specifically states:

          It is unlawful for a person or other entity, after hiring an
          alien for employment in accordance with paragraph (1), to
          continue to employ the alien in the United States knowing
          the alien is (or has become) an unauthorized alien with
          respect to such employment.20

Employers who violate IRCA are punished not only by a series of
civil fines,21 but are also subject to criminal penalties of up to $3,000
for each unauthorized alien so employed, and/or imprisonment for not
more than six months for a pattern or practice of such violations.22
IRCA thus statutorily disqualifies any undocumented alien from being
employed as a matter of law.

Regardless of the fact that IRCA proscribes the relationship
between an unauthorized alien and an employer, Egbuna cites Sure-
Tan, Inc. v. NLRB,23 to support his contention that Title VII protects
_________________________________________________________________
16 Id. § 1324a(h)(3).
17 Id. § 1324a(b).
18 Id. § 1324a(a)(1).
19 Id. § 1324a(a)(2).
20 Id.
21 Id. § 1324a(e)(4).
22 Id. § 1324a(f)(1).
23 467 U.S. 883 (1984).

                    6
unauthorized aliens from employment discrimination occurring dur-
ing the hiring process. Sure-Tan, a National Labor Relations Act
("NLRA") case which extended NLRA protection to illegal alien
employees, is inapplicable to the case at hand for three reasons. First,
Sure-Tan, is not a case in which the alleged discrimination occurs
during the hiring process. The unauthorized aliens in Sure-Tan experi-
enced discrimination after they were hired and while they were
employees of Sure-Tan. Second, Sure-Tan is a pre-IRCA case which
reasons that because "the employment relationship between an
employer and an undocumented alien is . . . not illegal under the
[Immigration and Nationality Act ("INA")], there is no reason to con-
clude that application of the NLRA to employment practices affecting
such aliens would necessarily conflict with the terms of the INA."24
Third, IRCA effected a monumental change in our country's immi-
gration policy by criminalizing the hiring of unauthorized aliens.

Given Congress' unequivocal declaration that it is illegal to hire
unauthorized aliens and its mandate that employers immediately dis-
charge unauthorized aliens upon discovering their undocumented sta-
tus, we cannot reverse the district court's grant of summary judgment
in favor of TLLI. To do so would sanction the formation of a statu-
torily declared illegal relationship, expose TLLI to civil and criminal
penalties, and illogically create an entitlement simply because Egbuna
applied for a job despite his illegal presence in this country and
despite his having been statutorily disqualified from employment in
the United States. In this instance, to rule Egbuna was entitled to the
position he sought and to order TLLI to hire an undocumented alien
would nullify IRCA, which declares it illegal to hire or to continue
to employ unauthorized aliens.

III.

For the foregoing reasons, we affirm the district court's grant of
summary judgment.

AFFIRMED
_________________________________________________________________

24 Id. at 893.

                     7
ERVIN, Circuit Judge, dissenting:

Because of the procedural posture of the case, we must assume that
TLLI refused to hire Egbuna in retaliation for his participation in a
co-worker's Title VII action and that TLLI, when it engaged in its
retaliation, was unaware that Egbuna was without authorization to
work in this country. The question, then, is whether an undocumented
alien can ever prove a prima facie case of employment discrimina-
tion. Perceiving a conflict between IRCA's proscription of hiring
undocumented aliens and federal employment discrimination statutes,
the majority holds that employers cannot be held accountable under
Title VII for adverse employment actions taken against undocu-
mented aliens. For a number of reasons, the majority's analysis is
misguided.

First, there is no conflict between IRCA and Title VII. Nothing in
IRCA suggests that Congress intended to limit the rights of undocu-
mented aliens under federal labor and anti-discrimination laws. To the
contrary, the legislative history explicitly cautions that IRCA should
not be interpreted as extinguishing an undocumented alien's rights
under these statutes:

         [T]he committee does not intend that any provision of this
         Act would limit the powers of State or Federal labor stan-
         dards agencies such as the . . . Equal Employment Opportu-
         nity Commission . . . to remedy unfair practices committed
         against undocumented employees for exercising their rights
         before such agencies or for engaging in activities protected
         by these agencies.

House Comm. on Educ. and Labor, H.R. Rep. No. 99-682(II), at 8-9
(1986), reprinted in 1986 U.S.C.C.A.N. 5757, 5758.1 Because Egbuna
_________________________________________________________________
1 This understanding of IRCA is echoed in the report for the House
Committee on the Judiciary. See H.R. Rep. No. 99-682(I), at 58 (1986),
reprinted in 1986 U.S.C.C.A.N. 5649, 5662 ("It is not the intention of the
Committee that the employer sanctions provision of the bill be used to
undermine or diminish in any way labor protections in existing law, or
to limit the powers of federal or state labor relations boards, labor stan-
dards agencies, or labor arbitrators to remedy unfair practices committed
against undocumented employees for exercising their rights before such
agencies or for engaging in activities protected by existing law.").

                    8
was denied employment in retaliation for "engaging in activities pro-
tected by [the EEOC]," see id., I think it obvious, as a matter of con-
gressional intent, that IRCA does not operate as a bar to Egbuna's
claim.

Second, the majority's opinion defeats Congress's desire to eradi-
cate employment discrimination in which an employer retaliates
against an employee, or former employee, for participating in a Title
VII investigation. The pertinent question in anti-discrimination cases
is whether the employer was motivated by a discriminatory animus at
the time of the adverse employment action against the employee. This
is the clear holding of a unanimous Supreme Court in McKennon v.
Nashville Banner Publ'g Co., 513 U.S. 352 (1995). McKennon held
that after-acquired evidence of a legitimate basis for an employee's
termination could not shield an employer from liability under the Age
Discrimination in Employment Act ("ADEA"). 2 The Court found that
after-acquired evidence was relevant only to the question of the rem-
edy to which the employee was entitled. Id. at 360-62. The Court's
decision was based on the value of effectuating the purpose of the
ADEA: "the elimination of discrimination in the workplace." Id. at
358. "The disclosure through litigation of incidents or practices which
violate national policies respecting nondiscrimination in the work
force is itself important . . . . The efficacy of[the ADEA's] enforce-
ment mechanisms becomes one measure of the success of the Act."
Id. at 358-59. Following the Court's reasoning in McKennon, TLLI
should be held liable if it is found to have retaliated against Egbuna
in violation of Title VII. The question of Egbuna's work authorization
is one that is pertinent only to the remedy to which he may be enti-
tled, and not to whether TLLI acted with discriminatory animus in its
employment decision making.

Third, as the Eleventh Circuit observed in the context of the Fair
Labor Standards Act ("FLSA"), enforcement of federal employment
laws actually reinforces and strengthens laws, such as IRCA, that aim
to stop illegal immigration. See Patel v. Quality Inn South, 846 F.2d
700 (11th Cir. 1988).
_________________________________________________________________
2 Analysis of the McDonnell Douglas burden-shifting scheme in ADEA
cases applies with equal force to claims under Title VII. Gillins v. Berke-
ley Elec. Coop. Inc., 1998 WL 381092, at *3 n.* (4th Cir. July 9, 1998).

                    9
          If the FLSA did not cover undocumented aliens, employers
          would have an incentive to hire them. Employers might find
          it economically advantageous to hire and underpay undocu-
          mented workers and run the risk of sanctions under the
          IRCA. . . . By reducing the incentive to hire such workers
          the FLSA's coverage of undocumented aliens helps discour-
          age illegal immigration and is thus fully consistent with the
          objectives of the IRCA.

Id. at 704-05. The majority's decision, in effect, relieves employers
of their obligation to comply with federal employment laws, other
than penalties under IRCA, with regard to any undocumented workers
they might employ. This interpretation of IRCA may provide an
employer with an economic incentive to hire undocumented workers
and, therefore, not only fails to effectuate the anti-discrimination pro-
visions of Title VII, but also works against IRCA's goal of curtailing
illegal immigration.3

Finally, the majority's decision presumably reaches beyond Title
VII and extinguishes an undocumented alien's rights under the ADEA
and the Americans with Disabilities Act, both of which require that
an employee be "qualified" in order to hold an employer liable for
unlawful discrimination. See Henson v. Liggett Group, Inc., 61 F.3d
270, 274 (4th Cir. 1995) (requiring that applicant prove "she was
qualified for a job" as part of the ADEA prima facie case) (emphasis
added); 42 U.S.C. § 12112(a) (1994) (providing that "[n]o covered
entity shall discriminate against a qualified individual with a disabil-
ity") (emphasis added). Under the majority's reasoning, I assume that
undocumented aliens are also no longer considered to be "employees"
for purposes of the National Labor Relations Act ("NLRA") and the
FLSA since the majority holds that IRCA "statutorily disqualifies any
undocumented alien from being employed as a matter of law." Maj.
op. at 6 (emphasis added). Such a view is not only at odds with Con-
gress's unambiguous intent, as articulated in the legislative history,
but with every court that has considered IRCA's effect on federal
labor laws. See NLRB v. A.P.R.A. Fuel Oil Buyers Group, Inc., 134
_________________________________________________________________
3 The above three arguments are more fully set forth in my opinion for
the panel in this case. See Egbuna v. Time-Life Libraries, Inc., 95 F.3d
353 (4th Cir. 1996), vacated (Dec. 17, 1996).

                     10
F.3d 50, 56 (2d Cir. 1997) (NLRA applies to undocumented aliens);
Del Rey Tortilleria, Inc. v. NLRB, 976 F.2d 1115, 1121 (7th Cir.
1992) (NLRA applies to undocumented aliens); Patel, 846 F.2d at
704-05 (FLSA applies to undocumented aliens); EEOC v. Tortilleria
"La Mejor", 758 F. Supp. 585, 590-91 (E.D. Cal. 1991) (Title VII
applies to undocumented aliens).4

The majority's decision is contrary to the unambiguous intent of
Congress in IRCA as revealed in the legislative history, the anti-
discrimination aims of Title VII, the immigration policy Congress
sought to advance through IRCA, and the unanimous caselaw from
our sister circuits. For these reasons, I respectfully dissent. I am
authorized to state that Judges Murnaghan, Michael, and Motz join in
this dissent.
_________________________________________________________________
4 While these cases disagree about the remedies that might be available
to an undocumented alien, in particular whether IRCA forbids a backpay
award, compare A.P.R.A. Fuel Oil, 134 F.2d at 56-58 (awarding back-
pay), with Del Rey, 976 F.2d at 1121-22 (refusing to award backpay), all
these cases agree that undocumented aliens' right to proceed under fed-
eral labor and anti-discrimination laws survives IRCA.

                   11
