Kirthi Venkatraman v.  Rei Systems, Incorporated

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 KIRTHI VENKATRAMAN,
Plaintiff-Appellant,
v. No. 03-1679 
REI SYSTEMS, INCORPORATED,
Defendant-Appellee. 
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
T. S. Ellis, III, District Judge.
(CA-03-278-A)
Argued: February 25, 2004
Decided: July 29, 2005
Before WIDENER and DUNCAN, Circuit Judges, and
William D. QUARLES, Jr., United States District Judge
for the District of Maryland, sitting by designation.
Affirmed by published opinion. Judge Widener wrote the opinion, in
which Judge Duncan and Judge Quarles concurred.
COUNSEL
Naren Chaganti, Town & Country, Missouri, for Appellant. Merrell
B. Renaud, SQUIRE, SANDERS & DEMPSEY, L.L.P., Tysons Cor-
ner, Virginia, for Appellee.

-- 1 of 9 --

OPINION
WIDENER, Circuit Judge:
Alleging racial and national origin discrimination, wrongful dis-
charge, and violations of federal immigration law, Kirthi Venkatra-
man sued his former employer, REI Systems, Inc. (REI). The district
court dismissed the complaint, and we affirm.
I.
Venkatraman is an American citizen of East Indian origin. He
worked for REI as a software engineer from July 2001 until March
2002, when he was fired. His complaint alleges that REI only paid
"full overtime consideration" to white employees and that he was "not
compensated on par with white employees." He alleges that REI
allegedly fired him when he complained of this unequal treatment,
and he suffered emotional distress as a result.
Venkatraman also claims that in order to hire foreign workers
under the H-1B visa program, REI violated 8 U.S.C. § 1182(n) by
falsely representing to the Immigration & Naturalization Service that
a shortage of qualified U.S. workers existed. According to the com-
plaint, REI also misrepresented that it would pay its H-1B workers the
same as its U.S. workers, when it in fact intended to pay the foreign
workers less.
The complaint asserts claims of "employment discrimination —
unequal treatment" (First); "wrongful discharge in violation of public
policy" (Second); "infliction of emotional distress" (Third); and "vio-
lation of U[.]S[.] immigration laws" (Fourth). REI moved to dismiss,
and the district court granted the motion. Venkatraman now appeals
the dismissal of the First, Second, and Fourth causes of action.
II.
We review de novo a district court’s dismissal under Federal Rule
of Civil Procedure 12(b)(6). In general, a motion to dismiss will not
be granted unless a plaintiff can prove no set of facts which would
2 VENKATRAMAN v. REI SYSTEMS

-- 2 of 9 --

support his claim and entitle him to relief. Conley v. Gibson, 355 U.S.
41, 45-46 (1957). In considering a motion to dismiss, we accept as
true all well-pleaded allegations and view the complaint in the light
most favorable to the plaintiff. Mylan Labs, Inc. v. Maktari, 7 F.3d
1130, 1134 (4th Cir. 1993).
A.
Venkatraman first contends that the district court erred in dismiss-
ing his employment discrimination claim. The district court construed
this claim, which alleges that REI paid Venkatraman less than its
white workers and fired him for complaining of this treatment, as aris-
ing under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e
et seq. (2003). It then dismissed the claim for failure to exhaust
administrative remedies.
Before filing a Title VII suit, a plaintiff in Virginia must file a
charge with the Equal Employment Opportunity Commission (EEOC)
within 300 days of the alleged violation. Edelman v. Lynchburg Coll.,
300 F.3d 400, 404 (4th Cir. 2002). As the district court recognized,
this statutory prerequisite is mandatory: a violation not made the sub-
ject of a timely charge is "the legal equivalent of a discriminatory act
which occurred before the statute was passed" and is "merely an
unfortunate event in history which has no present legal conse-
quences." United Air Lines v. Evans, 431 U.S. 553, 558 (1977).
Venkatraman does not dispute that he failed to file a charge with
the EEOC. Instead, he argues that Count I alleges facts sufficient to
support a claim under Title VI, which prohibits discrimination "under
any program or activity receiving Federal financial assistance." 42
U.S.C. § 2000d (2003). REI counters that Venkatraman waived the
Title VI argument because he failed to raise that jurisdictional basis
before the district court.
Initially, we note that the precise question at issue is whether
Venkatraman has stated a cause of action under Title VI, not whether
federal jurisdiction exists under Title VI. See Montana-Dakota Util.
Co. v. N’western Pub. Svc. Co., 341 U.S. 246, 249 (1951) ("As fre-
quently happens where jurisdiction depends on subject matter, the
question whether jurisdiction exists has been confused with the ques-
3 VENKATRAMAN v. REI SYSTEMS

-- 3 of 9 --

tion whether the complaint states a cause of action."). Jurisdiction
exists over Venkatraman’s discrimination claim under 28 U.S.C.
§ 1331. Whether construed under Title VI or Title VII, it arises under
the laws of the United States.
Nevertheless, we agree that Venkatraman waived the Title VI argu-
ment by failing to raise it below. Federal Rule of Civil Procedure 8(a)
requires only "‘a short and plain statement of the claim’ that will give
the defendant fair notice of what the plaintiff’s claim is and the
grounds upon which it rests." Conley, 355 U.S. at 47 (footnote omit-
ted). But Venkatraman, of East Indian ancestry, gave REI no indica-
tion of the grounds upon which Count I rests other than plaintiff "was
not compensated on par with white employees." He did not mention
Title VI in either his complaint or his opposition to REI’s motion to
dismiss. Nor did he allege facts showing that REI received federal
financial assistance, or that providing employment is a primary objec-
tive of the federal aid. See Trageser v. Libbie Rehab. Hosp., 590 F.2d
87, 88-89 (4th Cir. 1978) (discussing elements of a Title VI claim).
Plaintiff further contends that the complaint indicates the potential
for Title VI liability by stating that "REI further violated federal laws
regarding nondiscrimination as a Federal Government subcontractor."
This statement does not signal a potential Title VI claim, because
REI’s status as a government contractor is irrelevant to Title VI liabil-
ity. Title VI coverage turns on the receipt of "federal financial assis-
tance", not the existence of a contractual relationship. To the contrary,
the regulations implementing Title VI, the legislative history, and
cases interpreting the term all indicate that market contracts between
federal contractors and the government do not constitute such "assis-
tance." Only if the government intends to provide a subsidy does Title
VI apply. See, e.g., 45 C.F.R. § 80.13(f) (2004) (defining "federal
financial assistance"); Letter from Robert Kennedy, Attorney General,
to Hon. John Sherman Cooper (April 29, 1964), reprinted in 110
Cong. Rec. 10075, 10076 (1964) ("Title VI does not apply to procure-
ment contracts, or to other contracts which do not involve financial
assistance by the United States."); Jacobson v. Delta Airlines, Inc.,
742 F.2d 1202, 1209-11 (9th Cir. 1984) (holding that an entity
receives "assistance" when it receives a subsidy, as opposed to com-
pensation). Because Title VI does not forbid discrimination by a gov-
ernment contractor, but instead forbids discrimination by entities
4 VENKATRAMAN v. REI SYSTEMS

-- 4 of 9 --

receiving assistance, the complaint’s statement fails as an indicator of
Title VI liability.
In short, neither the district court nor REI had notice that Venkatra-
man intended to rely on Title VI, much less a factual recitation of the
elements of a Title VI claim. See Muth v. United States, 1 F.3d 246,
250 (4th Cir. 1993) (noting that issues raised for the first time on
appeal are waived unless plain error or a fundamental miscarriage of
justice would result).
Venkatraman argues that the "fundamental miscarriage of justice"
exception to Muth should apply, since the district court failed to give
him the opportunity to raise his Title VI argument. However, the dis-
trict court had no reason to think that Venkatraman intended to make
a Title VI argument. In addition, Venkatraman’s opposition to REI’s
motion to dismiss requests leave to amend the complaint, and stated
it "now offers to provide the particular grounds under which the plain-
tiff seeks relief if a leave to amend is granted." Title VI was not
among the "particular grounds listed in the plaintiff’s opposition.1 Nor
would the facts alleged in the opposition support a potential Title VI
claim. As a result, refusing to consider the argument for the first time
on appeal would not constitute a miscarriage of justice. Thus, we do
not consider Venkatraman’s argument that he has stated a claim under
Title VI, and we affirm the district court’s decision that his failure to
file an administrative charge precludes relief under Title VII.
1Grounds listed:
(a) better job benefits to whites than non-whites
(b) false certificate it would not replace U.S. workers
(c) falsely certified it would pay foreign workers on par or
better than U.S. workers.
(d) falsely certified there were no equally or better qualified
U.S. workers offered the job it offered to an H1-B worker
(e) retaliated against plaintiff for his complaints about (a)
through (d) above.
5 VENKATRAMAN v. REI SYSTEMS

-- 5 of 9 --

B.
Count II of Venkatraman’s complaint alleges that his discharge
"was wrongful and in violation of public policy because he asserted
his right to equal treatment and REI retaliated to Mr. Venkatraman’s
assertion of his right to equal treatment." The complaint does not state
whether the claim arose under state or federal law, nor does it men-
tion any statute. The district court correctly interpreted the claim as
either a Title VII retaliation claim, in which case Venkatraman’s fail-
ure to exhaust his administrative remedies barred the claim under Nat’
R.R. Passage Corp. v. Morgan, 536 U.S. 101, 122 (2002), or a Vir-
ginia common law claim for wrongful discharge on public policy
grounds, in which case the claim was foreclosed by the Supreme
Court of Virginia’s decision in Doss v. Jamco, 492 S.E.2d 441, 446
(1997).
C.
For a fourth cause of action, Venkatraman alleges that he was a
United States citizen and was discharged by REI, which had hired
numerous H1-B non-immigrants by falsely representing to the INS
that there was a shortage of qualified U.S. workers. He alleges that
such actions are in violation of 8 U.S.C. § 1182(n) and that a private
right of action for a violation of § 1182(n) must be implied because
the statute does not authorize such a cause of action. The district court
held that such an implied cause of action did not exist, and we agree.
This provision governs the Labor Condition Application (LCA)
used by employers seeking to hire alien workers under the H-1B visa
program. Under 8 U.S.C. § 1101(a)(15)(H)(i)(b) (from which the pro-
gram draws its name), aliens may enter the United States under an H-
1B visa to perform services in a "specialty occupation." However, an
H-1B visa cannot issue unless the employer wishing to hire the alien
first files an LCA that makes certain statements required by § 1182(n).2
2See § 1182(n)(1) ("No alien may be admitted or provided status as an
H-1B nonimmigrant in an occupational classification unless the
employer has filed with the Secretary of Labor an application stating the
following: . . . .").
6 VENKATRAMAN v. REI SYSTEMS

-- 6 of 9 --

Section 1182(n) details numerous requirements for compliance.3 It
also provides for responses to violations of those requirements. Sub-
section (n)(2)(A) directs the Secretary of Labor to "establish a process
for the receipt, investigation, and disposition of complaints respecting
a petitioner’s failure to meet a condition specified in an application
. . . or a petitioner’s misrepresentation of material facts in such an
application."
The Code of Federal Regulations establishes that process. See 20
C.F.R. § 655.800-.855 (2004). "Any aggrieved party" may submit a
complaint to the Department’s Wage and Hour Division, which then
determines whether the complaint warrants an investigation.
§ 655.806(a), .806-.807. See § 655.715 (defining "aggrieved party" to
include a "worker whose job, wages, or working conditions are
adversely affected by the employer’s alleged non-compliance with the
labor condition application"). If the Department conducts an investi-
gation, it determines whether LCA violations occurred and whether
penalties or administrative remedies are appropriate. § 655.805(a),
.806(b). Remedies for an aggrieved worker may include reinstate-
ment, back wages, or "other appropriate legal or equitable remedies."
§ 655.810(e)(2). Interested parties may seek review of the determina-
tion before an Administrative Law Judge, § 655.820-.835, and may
petition the Department’s Administrative Review Board to review the
ALJ’s decision. § 655.840, .845. Finally, the regulations contemplate
review of the final agency action in the district courts. § 655.850.
Subsection (n)(5) covers complaints regarding an employer’s mis-
representation or failure to state that it has offered the job in question
to any U.S. worker who is equally or better qualified. It directs the
3The application must include, inter alia, statements that the employer
will pay the H-1B aliens at "the actual wage level paid by the employer
to all other individuals with similar experience and qualifications for the
specific employment in question"; that the employer "did not displace
and will not displace" any U.S. worker "within the period beginning 90
days before and ending 90 days after the filing of any visa petition sup-
ported by the application"; and that, prior to filing the application, the
employer "has offered the job to any United States worker who applies
and is equally or better qualified for the job." § 1182(n)(1)(A)(i)(I),
(n)(1)(E)(i), (n)(1)(G)(i)(II).
7 VENKATRAMAN v. REI SYSTEMS

-- 7 of 9 --

Attorney General to establish a process for the receipt, review, and
disposition of such complaints. § 1182(n)(5)(B). If the Attorney Gen-
eral finds that reasonable cause exists, he or she must initiate binding
arbitration. The arbitrator’s decision as to any failure or misrepresen-
tation may be appealed to the Attorney General, with review of that
decision in a United States Court of Appeals. See § 1182(n)(5)(D).
Administrative remedies, including monetary penalties, are again
authorized. § 1182(n)(E).
Thus, Venkatraman’s complaints are subject to administrative rem-
edy.
In determining whether to imply a private right of action when
Congress has not made one explicitly, "[t]he key to the inquiry is the
intent of the Legislature." Middlesex Cty. Sewerage Auth. v. Sea
Clammers, 453 U.S. 1, 13 (1981) (citations omitted). As the Court
stated in Karahalios v. Nat’l Fed’n of Fed. Employees:
Unless such "congressional intent can be inferred from the
language of the statute, the statutory structure, or some other
source, the essential predicate for implication of a private
remedy simply does not exist." Thompson v. Thompson, 484
U.S. 174 (1988). It is also an "elemental canon" of statutory
construction that where a statute expressly provides a rem-
edy, courts must be especially reluctant to provide addi-
tional remedies. Transamerica Mortgage Advisers, Inc v.
Lewis, 444 U.S. 11, 19 (1979). In such cases, "[i]n the
absence of strong indicia of contrary congressional intent,
we are compelled to conclude that Congress provided pre-
cisely the remedies it considered appropriate." Middlesex
Cty Sewerage Auth. v. Sea Clammers, 453 U.S. 1, 15
(1981).
489 U.S. 527, 532-33 (1989). See also Northwest Airlines, Inc. v.
Transp. Workers Union, 451 U.S. 77, 97 (1981) ("The presumption
that a remedy was deliberately omitted from a statute is strongest
when Congress has enacted a comprehensive legislative scheme
including an integrated system of procedures for enforcement."). As
in Karahalios, the statute in question here "expressly provides a rem-
edy," and we are thus especially reluctant to provide additional. We
8 VENKATRAMAN v. REI SYSTEMS

-- 8 of 9 --

are of opinion and hold that an implied private right of action in favor
of Venkatraman is not implied under 8 U.S.C. § 1182(n) and affirm
the district court.
The judgment of the district court is accordingly
AFFIRMED.4
4The third cause of action contained in the complaint is a complaint of
emotional distress on account of plaintiff’s discharge. While not raised
on appeal, it is worthwhile to note that that aspect of the complaint was
dismissed by the district court under Russo v. White, 400 S.E.2d 160, 162
(Va. 1991), because the complaint did not allege conduct which had
"been so outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded as atrocious,
and utterly intolerable in a civilized community." (Quoting Russo at
162.)
The motion of REI to file a supplemental brief is denied.
9 VENKATRAMAN v. REI SYSTEMS

-- 9 of 9 --