Murguia v. Childers

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF ARKANSAS

FAYETTEVILLE DIVISION

MARÍA MURGUÍA PLAINTIFF

V. CASE NO. 5:20-CV-5221

CHARISSE CHILDERS, in her official

Capacity as Director of the Arkansas

Division of Workforce Services DEFENDANT

MEMORANDUM OPINON AND ORDER

Before the Court are Plaintiff’s Amended Motion for Temporary Restraining Order

and Preliminary Injunction (Doc. 35) and Brief in Support (Doc. 24). Defendant filed a

Response in Opposition (Doc. 38), and Plaintiff filed a Reply (Doc. 41). The Court also

held an evidentiary hearing on the Motion on March 15, 2021. For the following reasons,

Plaintiff’s Motion (Doc. 35) is DENIED.

I. BACKGROUND

This case arises out of a pending claim for unemployment benefits, or UI.1

0F

Defendant Charisse Childers is sued in her official capacity as the Director of the

Arkansas Division of Workforce Services (“DWS” or “ADWS”), the state agency that

administers UI. Plaintiff María Murguía alleges that she was laid off from her job in

housekeeping at Holiday Inn at the beginning of the COVID-19 pandemic and has waited

almost a year to receive UI benefits. Ms. Murguía brings claims under Title VI and the

1 The Court understands that in response to the COVID-19 pandemic, Congress has

funded various programs intended to supplement traditional unemployment benefits. The

Court will use “UI” as a blanket term that refers to all of these programs.

As explained below, infra p. 13, Ms. Murguía has now received certain UI benefits for the

weeks of April 4 through July 18, 2020. Certain other UI benefits to which she may be

entitled for subsequent weeks have not been paid.

Procedural Due Process Clause of the Fourteenth Amendment. Her Complaint also

raised a third claim under state law, but Ms. Murguía dismissed that claim on the record,

agreeing with the Court that sovereign immunity bars a claim in federal court for injunctive

relief against a state official on the basis of state law. See Pennhurst State Sch. & Hosp.

v. Halderman, 465 U.S. 89 (1984).

On March 15, 2021, the Court held a lengthy evidentiary hearing on Plaintiff’s

Motion. Six witnesses testified: María Murguía, the plaintiff; Alejandra, her daughter;

Kesha Rogers Kelly, the Assistant Director of UI; Raymond Michaud, who works in DWS’s

Fayetteville office; Eduardo Lemm, DWS’s Regulatory Advisor for Targeted Populations;

and Corina Parra, the UI Limited English Proficiency Coordinator. The Court makes the

following findings of fact for the purposes of this Motion based on the declarations and

exhibits filed to the docket and the evidence presented at the hearing.

A. State and Federal Regulations

UI benefits are administered by the states, but the federal government provides a

portion of the funding for state UI programs and imposes requirements on those programs

as a condition of this funding. The Secretary of Labor is the federal official charged with

oversight of state compliance with the federal requirements. See 42 U.S.C. § 503.

Pursuant to this authority, the Department of Labor (“DOL”) has promulgated regulations

that govern the federal-state UI program. These guidelines include expectations for

timeliness of processing and payment. For example, in assessing state compliance with

the requirement that UI payments be timely made, DOL requires that 93% of all initial

payments be made within 35 days of the end of the first compensable week and that 87%

of initial payments be made within 21 days. See 20 C.F.R. § 640.5.

DOL has also promulgated regulations regarding language access for limited-

English-proficient (“LEP”) claimants that require state UI agencies to “take reasonable

steps to ensure meaningful access to each limited English proficient individual served or

encountered so that LEP individuals are effectively informed about and/or able to

participate in the program.” 29 C.F.R. § 38.9(b). Such steps include “ensur[ing] that

every program delivery avenue (e.g., electronic, in person, telephonic) conveys in the

appropriate languages how an individual may effectively learn about, participate in, and/or

access” UI benefits, 29 C.F.R. § 38.9(c), and “provid[ing] adequate notice to LEP

individuals of the existence of interpretation and translation services and that these

language assistance services are available free of charge.” 29 C.F.R. § 38.9(e).

With regard to interpretation, the regulations specify that an accompanying adult

may serve as an interpreter only “when the LEP individual specifically requests that the

accompanying adult provide language assistance, the accompanying adult agrees to

provide assistance, and reliance on that adult for such assistance is appropriate under

the circumstances.” 29 C.F.R. § 38.9(f)(2)(ii). “When the [agency] permits the

accompanying adult to provide such assistance, it must make and retain a record of the

LEP individual's decision to use their own interpreter.” Id. Additional guidance provided

in an Unemployment Insurance Program Letter (“UIPL”) instructs that “UI agency staff

should be trained to identify language access barriers and provide affected claimants

alternative access options.” Dep’t of Labor, Emp. & Training Admin., Unemployment

Insurance Program Letter No. 02-16, at 10 (Oct. 1. 2015) [hereinafter UIPL 02-16].

The DWS Operations Manual incorporates these requirements. Regarding in-

person interpretation, the manual provides that “ADWS staff must determine the primary

language spoken by the client by conversation, or use the ‘I Speak’ poster, targeting the

most common languages spoken in Arkansas.” Doc. 35-3, p. 4. The Manual provides

the following regarding interpretation services for LEP claimants:

LEP clients frequently report to a local office accompanied by relatives or

friends who intend to serve as interpreters. ADWS staff should be cautious

in determining the ability of informal interpreters and should offer free LEP

interpretation services to the clients.

If the LEP client voluntarily chooses to provide their own interpreter, a DWS-

ARK-599 form must be completed to allow ADWS to speak with the chosen

interpreter about the claim. This form must also be imaged to the claim and

the service file must be documented.

ADWS staff will not be required to obtain an interpreter for a LEP client when

an informal interpreter is available, able, and a DWS-ARK-599 form was

completed.

Id. at p. 6.

As to document translation, DOL regulations require that for commonly used

languages, the state agency “must translate vital information in written materials into

these languages and make the translations readily available in hard copy, upon request,

or electronically such as on a Web site.” 29 C.F.R. § 38.9(g)(1). Vital information is

defined as any “information, whether written, oral, or electronic, that is necessary for an

individual to understand how to obtain any aid [or] necessary for an individual to obtain

any aid . . . .” 29 C.F.R. § 38.4(ttt). Pursuant to 29 C.F.R. § 38.9(g)(3), all communications

containing vital information must contain a Babel notice, which is defined as a statement

“in multiple languages informing the reader that the communication contains vital

information, and explaining how to access language services to have the contents of the

communication provided in other languages.” 29 C.F.R. § 38.4(i). Furthermore, “once

[an agency] becomes aware of the non-English preferred language of an LEP [claimant],

the [agency] must convey vital information in that language.” 29 C.F.R. § 38.9(h). DOL

also cautions that “[a]s state UI agencies move to almost exclusively website-driven

services, there is an increased likelihood that LEP individuals will face barriers to

accessing information and claims-related access in violation of Title VI and regulations .

. . .” UIPL 02-16 at p. 8.

Because the Spanish-speaking LEP population in Arkansas exceeds five percent,

DWS is required to translate vital information into Spanish. As indicated by the Limited

English Proficiency Vital Documents Compliance Report, (Def. Exh. 4), many forms have

been translated into Spanish, see p. 6, but other documents that might be considered

vital information, like the Notice of Monetary Determination and the Notice of Agency

Determination, have not. See p. 11. A claimant can be identified as Spanish-speaking

in the DWS case management system, but Ms. Parra testified that this does not trigger

forms in Spanish to be mailed to the claimant. Translated forms are available on the DWS

website, and some are available in hard copy from the DWS office. Most information that

is sent by mail contains a Babel notice informing the reader, “Interpretation/Translation

services available through your local office.” It does not direct a claimant to any website

where a Spanish translation of the forms is available or provide a phone number to call.

Ms. Parra testified that DWS does not have a telephonic interpretation service.

In addition to guidance regarding language access, DOL has issued instructions

for state UI agencies in administering PUA, which was created by Congress to provide

benefits for individuals who have been prevented from working by the COVID-19

pandemic but who do not qualify for traditional UI. Pursuant to this guidance, an individual

cannot be considered for PUA until it has been determined that she is not eligible for UI.

See Dep’t of Labor, Emp. & Training Admin., Unemployment Insurance Program Letter

No. 16-20, Attachment 1, at I-9 (Apr. 5, 2020). States are instructed to “review regular

[UI] claims that were denied as of January 27, 2020 forward and identify individuals who

are potentially eligible” for PUA. Dep’t of Labor, Emp. & Training Admin., Unemployment

Insurance Program Letter No. 16-20 Change 1, Attachment 1, at I-2 (Apr. 27, 2020). The

state agency must then “provide these individuals with appropriate written notification of

their potential eligibility, including filing instructions.” Id.

B. DWS Claim Process

Ms. Kelly testified that in February 2020, there were approximately 1,000 UI claims

to be adjudicated by DWS. When the pandemic began, the number of claims for UI

benefits soared to more than 60,000, and as of March 15, 2021, DWS had approximately

23,000 claims awaiting adjudication. A claimant may come in person to a DWS office to

apply for UI. As part of its COVID-19 precautions, DWS permits only one party inside the

lobby at a time. The claimant submits any documents at a front intake station but is not

present when those documents are entered into the computer.

When a UI claim is opened, DWS sends notice to the claimant’s last employer and

any other base period employers. By statute, such employers have 10 and 15 days

respectively to respond to the notice, and after that they may be deemed to have waived

the right to respond. See Ark. Code Ann. §§ 11-10-505(a)(2)(A) & 11-10-521(b)(2)(A).

However, Ms. Kelly testified that if information comes in after the deadline but before the

claim has been processed, DWS is permitted to consider the information that is received.

If there is a dispute regarding the reason for separation or an indication that the

reason for separation may be disqualifying, the claim goes to adjudication. Adjudication

is a fact-finding process but does not involve a hearing—the DWS adjudicator gathers

information from the claimant and the employer and then issues an initial decision about

whether or not the claimant qualifies for benefits. If the claimant is determined to be

ineligible, he or she has the right to seek an appeal from the Appeal Tribunal. Based on

the information presented, the Appeal Tribunal may then refer a claim back to DWS for

further investigation and review. Ms. Kelly testified that there is no system for prioritizing

claims in which DWS has made an error—such claims rejoin the line for adjudication.

Once a claimant has been found ineligible, she must work another 30 days in a qualifying

position before she is eligible to apply for UI benefits again.

C. María Murguía

Plaintiff María Murguía was born in Mexico and is a legal permanent resident of

the United States. Through a translator, Ms. Murguía testified at the hearing that she

does not speak any English. She also testified that she can read and write “very little” in

Spanish. Ms. Murguía worked for Molly Maid of Northwest Arkansas until November

2019, when she left Molly Maid to begin a job at Holiday Inn in Bentonville. Formally, her

employer was Interstate Management Company, LLC. In March 2020, occupancy rates

at Holiday Inn dropped because of the COVID-19 pandemic, and Ms. Murguía was laid

off. On April 2, 2020, Ms. Murguía and her daughter, Alejandra, went to the DWS office

in Fayetteville. Alejandra completed a paper application for unemployment benefits in

English on her mother’s behalf and listed Holiday Inn as Ms. Murguía’s last employer.

When they reached the front of the line, they handed the paper application to the staff

member at the front desk, who also made copies of Ms. Murguía’s permanent resident

card. Alejandra acted as an interpreter between her mother and the DWS employee

throughout that interaction. Alejandra testified that no one offered interpreter services,

nor were there signs offering such services, but she would have accepted any services

that were offered because “they could explain it way better than [Alejandra] could.”

Several days later, a DWS staff member entered into the computer the information

from Ms. Murguía’s application. The wages Ms. Murguía earned at Holiday Inn, however,

did not appear because, as it was later discovered, the company recorded Ms. Murguía’s

social security number incorrectly. Ms. Kelly testified that the proper procedure would

have been to contact Ms. Murguía at that time to provide paystubs to corroborate her

employment. Here, the Court concludes that the staff member likely saw that Ms.

Murguía’s most recent earned wages were from Molly Maid and wrongly listed that

company as the last employer on the electronic application. This error by DWS set the

stage for a cascade of additional errors that would soon follow.

DWS generated a Notice of Monetary Determination on the basis of Ms. Murguía’s

wage history with Molly Maid, which was mailed to her on April 9, 2020. A notice was

also sent to Molly Maid as Ms. Murguía’s (incorrectly listed) last employer. In response,

Molly Maid disputed that Ms. Murguía had been laid off and provided evidence that she

quit her job at Molly Maid in November 2019. Ms. Murguía also disputed the agency’s

monetary determination. On May 7, 2020, she faxed a letter to the agency indicating that

she was “laid off from Holiday Inn Hotel due to Covid-19,” that she “do[es] not work for

Molly Maid of Northwest Arkansas” and that she “was not laid off from Mollymaid [sic] of

Northwest Arkansas.” (Doc. 38-2, p. 20). Ms. Kelly testified that because of the enormous

influx of documents and the increase of claimants, Ms. Murguía’s letter was not added to

her file until June, further compounding DWS’s initial error. In the meantime, a DWS staff

member reviewed Ms. Murguía’s application and the materials provided by Molly Maid in

opposition and determined that Ms. Murguía was not eligible for UI for quitting her job

with Molly Maid.

Ms. Murguía was informed of this decision and her right to appeal by letter.

Alejandra translated the letter for Ms. Murguía to the best of her ability. Ms. Murguía then

submitted a petition for appeal on June 17, 2020. Before the date of the appeal hearing,

however, Ms. Murguía sent a typed letter withdrawing her appeal. In the letter, Ms.

Murguía indicated that she did not understand why Molly Maid was listed as her employer

and not Holiday Inn but stated that since Holiday Inn is “not the employer on this appeal,

it does not make sense to move forward with the appeal as it is set up.” (Doc. 38-3, p.

2). Consequently, the appeal was dismissed at the time of the hearing on July 28, 2020.

About a month later, on August 25, Ms. Murguía and Alejandra visited the DWS

Fayetteville office again to request that her claim for UI benefits be considered based on

her employment with Holiday Inn. They spoke with Mr. Michaud at the intake point and

asked why DWS had the wrong information as to Ms. Murguía’s last employer. During

the exchange, Alejandra testified that she and Ms. Murguía were speaking in Spanish as

Alejandra translated the exchange with Mr. Michaud. Mr. Michaud did not offer Ms.

Murguía free translation services, though he acknowledged that the proper procedure

would have been to do so had he identified her as having limited proficiency in English.

Mr. Michaud told Ms. Murguía to provide DWS with paystubs from Holiday Inn, but when

Ms. Murguía and Alejandra returned the next day with the paystubs, Mr. Michaud refused

to take them and add them to her file, though he acknowledged in his testimony that the

proper procedure would have been to do so. Alejandra testified that Mr. Michaud wrote

down “30 days of work” on a slip of paper, indicating that Ms. Murguía had already been

found ineligible and would need 30 days of new work before she would be eligible for UI

again. See Pl. Exh. 9. He did not mention that Ms. Murguía might be eligible for PUA

benefits. Both women felt that Mr. Michaud was very rude and angry, which caused Ms.

Murguía to conclude that he was racist towards Mexicans.

Mr. Michaud testified that he had no recollection of this contact with Ms. Murguía,

and DWS contends that there is no evidence of Ms. Murguía having visited the office on

August 25 and 26. On August 26, however, Mr. Michaud ran a check to verify Ms.

Murguía’s immigration status in a federal database called SAVE. See Doc. 38-2, p. 37.

Mr. Michaud and DWS suggest that the timing of the SAVE report is merely a coincidence.

The Court expressly finds otherwise and credits Ms. Murguía and Alejandra’s accounts

of their visits to the DWS office on August 25 and 26.

About a month later, on September 23, an attorney from Legal Aid contacted Mr.

Lemm, seeking help with Ms. Murguía’s situation. Mr. Lemm forwarded the email to Ms.

Parra. Alejandra emailed the paystubs from Holiday Inn to Ms. Parra that same day, and

DWS promptly issued a new Notice of Monetary Determination reflecting those wages,

see Doc. 8-2, p. 31, and a Notice of Amended Determination stating that the June 9

decision “was issued in error since this was not the claimant’s correct last work.” (Doc.

38-2, p. 35). That same day, Ms. Parra sent Mr. Lemm an email describing how Ms.

Murguía’s situation had been complicated by her decision to withdraw her appeal. Ms.

Murguía indicated that she was advised to withdraw her appeal by the Economic Justice

Staff Attorney at Legal Aid of Arkansas, referred to as EJSALAA, but could not explain

why. See Pl. Exh 10, p. 12.

The process began anew, with notice going out to Interstate as Ms. Murguía’s last

employer. See Doc. 38-2, p. 38. Interstate never replied to oppose Ms. Murguía’s claim

on the basis of her most recent employment. However, Equifax responded based on a

previous job Ms. Murguía held with Interstate between July 2016 and September 2017.

See Doc. 38-2, p. 39. Though this was actually non-responsive to DWS’s Notice to Last

Employer sent on September 25, 2020, see Doc. 38-2, p. 38, Ms. Kelly testified that it

was sufficient to get Ms. Murguía’s claim sent to adjudication again when DWS processed

Equifax’s response on October 29, 2020.

Ms. Murguía spoke with Ms. Parra again in December. In her declaration, Ms.

Murguía alleged that during this conversation, Ms. Parra questioned her about the

immigration status of her former co-workers at Holiday Inn and implied that Ms. Murguía’s

case would be closed if she refused to answer those questions. See Doc. 35-1, ¶ 34. In

her own declaration, Ms. Parra asserted that this was false and that Ms. Murguía actually

volunteered information about the immigration status of her former supervisor during this

conversation and that Ms. Parra took no action in response to this allegation. See Doc.

38-5, ¶ 9. During the hearing, Ms. Murguía testified that Ms. Parra “asked if [Ms.

Murguía’s] coworkers had a good social.” Her attorney then asked if she “t[ook] her

meaning to be that she was asking you about their immigration status,” to which Ms.

Murguía responded, “Yes.” When asked “How did that conversation end?” Ms. Murguía

did not mention Ms. Parra’s alleged threat to close her case. Ms. Parra’s testimony

followed the account that is contained in her declaration. The Court finds Ms. Parra’s

account of the exchange more credible and concludes that no such threats or coercion

occurred.

Throughout this process, all substantive written correspondence between DWS

and Ms. Murguía has been in English. The Notice of Monetary Determination contains

only the Babel notice. See Doc. 38-2, pp. 9, 31. Ms. Murguía’s handwritten response

was in English. See id. at p. 20. The initial Notice of Agency Determination also contains

the Babel notice at the bottom and includes a paragraph in the body of the letter in

Spanish instructing that a reader in need of assistance should report to the local office in

person. See id. at p. 24. The same is true of the amended determination that was sent

in September. See id. at p. 35. The Notice of Telephone Hearing for Ms. Murguía’s

appeal, with instructions on how to participate in the hearing, is written only in English.

See id. at p. 27. Ms. Murguía’s typewritten letter withdrawing her appeal was in English.

See Doc. 38-3, p. 2. The decision of the appeal tribunal is also written only in English.

See Doc. 38-2 at p. 28. Neither the agency determination denying UI eligibility nor the

appeal tribunal’s decision contain information about applying for PUA.

Ms. Murguía filed her Amended Motion for Temporary Restraining Order and

Preliminary Injunction on February 25, 2021. The Amended Motion asks the Court to

order DWS to make an immediate eligibility determination on Ms. Murguía’s pending UI

application and, if she is eligible, pay her benefits back to when she was laid off in March.

If she is not eligible, Ms. Murguía asks the Court to expedite consideration of an

application for PUA, with benefits to be paid back to the same date. Ms. Murguía also

asks the Court to order that any appeals be expedited as well. Next, Ms. Murguía

requests a restraining order and preliminary injunction requiring DWS to take a variety of

steps to ensure meaningful language access, including posting visible signs about the

availability of Spanish-language services, sending written notices with the substantive

content in Spanish, and providing translation services by phone and not only in person,

with taglines in Spanish included on documents to inform claimants of this service.

Finally, Ms. Murguía asks the Court to order DWS to vacate or reconsider any decision

that would foreclose her eligibility before the June 10 determination involving Molly Maid.

In support of her Motion, Ms. Murguía argues that she has a likelihood of success on the

merits of both her Title VI and procedural due process claims and that she suffers ongoing

irreparable harm from the delay in her benefits because she cannot afford necessities for

herself and her minor son.

After the hearing, the Court was notified that Ms. Murguía’s claim for UI was

approved for the weeks of April 4 through July 18, 2020, but she will need to file separate

applications to seek benefits for subsequent weeks in which she may be eligible. See

Doc. 45-1. Ms. Murguía asserts that this update does not moot many of her claims for

relief. She asks the Court to expedite processing of the additional applications and grant

the requested relief related to language access. See Doc. 46. Because Ms. Murguía

could still be entitled to a preliminary injunction regarding language access and/or

expedited consideration for other unemployment benefit programs, the Court takes up the

merits of her claims below.

After laying out the applicable legal standard, the Court discusses Defendant’s

threshold defenses. Proceeding to the merits of each of Ms. Murguía’s claims, the Court

first assesses whether Ms. Murguía has demonstrated a likelihood of success on the

merits of her Title VI claim, considering both the McDonnell Douglas balancing test and

deliberate indifference as possible standards for intentional discrimination. Though the

Court finds that Ms. Murguía has made at least a prima facie showing of intentional

discrimination for which DWS has failed to offer a satisfactory nondiscriminatory

explanation, the Court concludes that Ms. Murguía has not demonstrated an irreparable

harm from the alleged Title VI violation for which emergency relief is appropriate. Then,

the Court considers Ms. Murguía’s likelihood of success on the merits of her due process

claim. Again, the Court concludes that there is possible merit to Ms. Murguía’s

allegations, but that emergency relief is nevertheless inappropriate.

II. LEGAL STANDARD

The Court must consider the Dataphase factors when determining whether to grant

a motion for a preliminary injunction: (1) the movant’s likelihood of success on the merits;

(2) the threat of irreparable harm to the movant; (3) the balance between the harm to the

movant and the injury that granting an injunction would cause other interested parties;

and (4) the public interest. Kroupa v. Nielsen, 731 F.3d 813, 818 (8th Cir. 2013) (quoting

Dataphase Sys. Inc. v. CL Sys., 640 F.2d 109, 113 (8th Cir. 1981)). Preliminary injunctive

relief is an extraordinary remedy, and the party seeking such relief bears the burden of

proving that the balance of the equities is in its favor. Watkins Inc. v. Lewis, 346 F.3d

841, 844 (8th Cir. 2003). “The burden on the movant is heavy, in particular where granting

the preliminary injunction will give the movant substantially the relief it would obtain after

a trial on the merits.” Smithfield Packaged Meat Sales Corp. v. Dietz & Watson, Inc., 452

F. Supp. 3d 843, 853 (S.D. Iowa 2020) (quoting United Indus. Corp. v. Clorox Co., 140

F.3d 1175, 1179 (8th Cir. 1998)) (cleaned up).

“While no single factor is determinative, the probability of success factor is the most

significant.” Home Instead, Inc. v. Florance, 721 F.3d 494, 497 (8th Cir. 2013) (internal

quotation marks and citations omitted). “To that end, ‘the absence of a likelihood of

success on the merits strongly suggests that preliminary injunctive relief should be

denied.’” Barrett v. Claycomb, 705 F.3d 315, 320 (8th Cir. 2013) (quoting CDI Energy

Servs., Inc. v. W. River Pumps, Inc., 567 F.3d 398, 402 (8th Cir. 2009)). Additionally,

“[t]he basis of injunctive relief in the federal courts has always been irreparable harm and

inadequacy of legal remedies. When there is an adequate remedy at law, a preliminary

injunction is not appropriate.” Watkins, 346 F.3d at 844. “To succeed in demonstrating

a threat of irreparable harm, ‘a party must show that the harm is certain and great and of

such imminence that there is a clear and present need for equitable relief.’” Roudachevski

v. All-American Care Ctrs., Inc., 648 F.3d 701, 706 (8th Cir. 2011). Finally, “[i]n exercising

their sound discretion, courts of equity should pay particular regard for the public

consequences in employing the extraordinary remedy of injunction.” Winter v. Nat. Res.

Def. Council, Inc., 555 U.S. 7, 24 (2008) (quoting Weinberger v. Romero-Barcelo, 465

U.S. 305, 312 (1982)).

III. DISCUSSION

Defendant’s briefing on the Motion begins by invoking sovereign immunity,

standing doctrine, and res judicata, but without acknowledging the Court’s previous

rulings on these issues. For example, Defendant’s sovereign immunity arguments were

denied for the reasons explained in the Court’s Memorandum Opinion and Order Denying

Motion to Dismiss (“March 2 Order”) (Doc. 37). There, the Court held that Ms. Murguía’s

claim under the Fourteenth Amendment falls within the Ex parte Young exception to state

sovereign immunity. Defendant offers no reason for the Court to revisit its ruling on the

issue of sovereign immunity, and the Court declines to do so.2

1F

Defendant’s argument as to standing is also unpersuasive. Defendant argues that

Ms. Murguía lacks standing to pursue her Fourteenth Amendment claim because the

threat of injury is too speculative. The Court disagrees. The Complaint and the instant

Motion make clear that Ms. Murguía’s alleged harm is the ongoing delay in receiving an

accurate adjudication of her claim, which has made her unable to provide for her family’s

basic needs. The Court concludes that Ms. Murguía has standing to pursue her claims.

Finally, Defendant’s invocation of res judicata is simply an effort to renew under

another name the arguments about administrative exhaustion that the Court rejected in

its March 2 Order. The purpose of the appeal set in July 2020 would have been to

determine whether DWS made a mistake in identifying Molly Maid as Ms. Murguía’s last

employer. That is not a question currently before this Court. Nor could the issues before

this Court have been resolved by that appeal because many of the relevant facts occurred

in the months since Ms. Murguía withdrew her administrative appeal. Thus, the Court

rejects these threshold defenses and proceeds to the merits of Ms. Murguía’s claims.

A. Title VI

Title VI provides a private right of action for claims of intentional discrimination

only, not for disparate impact. See Alexander v. Sandoval, 532 U.S. 275 (2001). Ms.

Murguía has two theories of intentional discrimination in this case. First, she asserts that

2 Defendant also invokes Daniels v. Williams, 474 U.S. 327 (1986), for the proposition

that a procedural due process claim requires evidence of intentional misconduct by the

government actor. However, since Ms. Murguía’s constitutional claim is brought pursuant

to Ex parte Young and seeks only prospective injunctive relief, any reliance on Daniels,

which involved a suit for damages pursuant to 42 U.S.C. § 1983, is wholly misplaced.

where there is no direct evidence of intentional discrimination, the Court may apply the

McDonnell Douglas burden-shifting analysis more commonly used in the context of Title

VII. See Rowles v. Curators of Univ. of Mo., 983 F.3d 345, 355 (8th Cir. 2020) (applying

McDonnell Douglas in analyzing a Title VI claim for discrimination on the basis of race).

Defendant does not dispute that this framework is also applicable to Title VI claims. In

the alternative, Ms. Murguía argues that the Court should hold that a showing of deliberate

indifference may also support a finding of intentional discrimination under Title VI. As the

Court previously noted in its March 2 Order, this is a more novel theory of liability that has

not been applied to analogous facts under Title VI in this circuit. Defendant’s briefing

does not address this aspect of Ms. Murguía’s claim.

Below, the Court will address each of these theories of liability in turn. First, the

Court finds that Ms. Murguía has made a prima facie case for intentional discrimination,

and the state has failed at this juncture to offer a persuasive nondiscriminatory answer.

Nevertheless, the Court finds that there has not been a showing of ongoing irreparable

harm linked to this intentional discrimination. As to deliberate indifference, the Court

reaches the same conclusion—even if it were to adopt the deliberate indifference

standard for demonstrating intentional discrimination under Title VI, the evidence

presented thus far does not show irreparable harm arising from DWS’s deliberate

indifference to Ms. Murguía’s need for language access services, and the requested

emergency injunctive relief is not an appropriate remedy.

1. McDonnell Douglas Framework

“To establish a prima facie case of discrimination under Title VI, the plaintiff must

show (1) that the defendant is receiving federal funds, (2) that the plaintiff was

discriminated against, and (3) the plaintiff's race, color, or national origin was the motive

for the discriminatory conduct.” Scarlett v. Sch. of Ozarks, Inc., 780 F. Supp. 2d 924,

933–34 (W.D. Mo. 2011). “If the plaintiff establishes a prima facie case, the burden shifts

to the defendant to proffer a legitimate, nondiscriminatory reason for its decision.”

Rowles, 983 F.3d at 355. “If the defendant proffers such a reason, the burden shifts back

to the plaintiff to show that the proffered reason was mere pretext for discrimination.” Id.

The Court first considers whether the fact that Ms. Murguía speaks Spanish and

has limited proficiency in English may appropriately be considered a proxy for Ms.

Murguía’s identity as a Mexican-born immigrant and concludes that it may.3 In Mumid,

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the Eighth Circuit held that since the challenged policy referred to English-language-

learners, it did not “facially discriminate based on national origin,” and was not by itself

proof of a Title VI violation. 618 F.3d at 795. The court did not foreclose the possibility

that additional evidence might link the ELL policy to intentional discrimination on the basis

of national origin. Here, the Court is persuaded that the link between Ms. Murguía’s

limited proficiency in English and her national origin is plausibly alleged.

3 In her Response Brief, Defendant quotes (without attribution) the Eighth Circuit’s

observation that “[w]hile Title VI prohibits discrimination on the basis of national origin,

language and national origin are not interchangeable.” (Doc. 38, p. 20). See Mumid v.

Abraham Lincoln High Sch., 618 F.3d 789, 795 (8th Cir. 2010). Defendant does not follow

this observation with any argument related to the facts before the Court. Additionally, the

only binding precedent Defendant cites in support of this proposition is not factually similar

enough to Ms. Murguía’s claims to have any relevance. See Hannoon v. Fawn Eng’g

Corp., 324 F.3d 1041, 1048 (8th Cir. 2003) (observing that the defendant’s request that

a co-worker “translate” an email from the plaintiff was a “race-neutral comment[]” and that

simply “criticizing a foreign employee’s facility with the English language” was insufficient

to constitute “discrimination against a particular race or national origin” in violation of Title

VII).

Ms. Murguía makes many allegations that she argues together establish a prima

facie case of discrimination on the basis of national origin. The Court finds, however, that

some of those allegations are not supported by the evidence presented so far. For

example, the Court does not credit Ms. Murguía’s account in her declaration of her

December 2020 conversation with Ms. Parra. See Doc. 35-1, ¶ 34. The evidence also

does not bear out Ms. Murguía’s allegation that DWS improperly waited more than 10

days for Holiday Inn to respond to its request for information while it investigated Ms.

Murguía’s immigration status or Holiday Inn’s hiring practices. Ms. Kelly testified that Ms.

Murguía’s claim was flagged for adjudication based on information from Equifax

pertaining to an earlier time when Ms. Murguía worked for Interstate. She also testified

that once a claim is ready for adjudication, DWS may take into consideration any

information from the employer, even if it was received more than 10 days after notice was

sent, and that as of March 15, Ms. Murguía’s claim was still in line awaiting adjudication.

None of the evidence suggests a discriminatory reason for DWS’s delay in adjudicating

Ms. Murguía’s claim as to Holiday Inn.

The Court does find credible and persuasive, however, Ms. Murguía’s allegations

regarding Mr. Michaud’s failure to offer her interpretation services despite the obvious

need to do so, his refusal to accept the paystubs she brought, and the fact that he ran a

search to verify Ms. Murguía’s immigration status on August 26, 2020. While the Court

does not give particular weight to whether Mr. Michaud was rude to Ms. Murguía and

Alejandra, the Court credits their accounts of their visit to DWS. In particular, the fact that

Mr. Michaud ran a check on Ms. Murguía’s immigration status—while at the same time

denying that he refused to process her claim with the Holiday Inn check stubs—makes a

discriminatory motive more plausible. The Court concludes that together, this evidence

chins the bar to establish a prima facie case that Ms. Murguía was denied access to UI

benefits, which are funded in part by federal money, on the basis of her national origin as

a Mexican-born immigrant.

Second, the Court is not persuaded that Defendant has met its burden to establish

a legitimate reason for these actions. The Court credits DWS’s general assertion that it

is “processing claims in a first-in, first-out as fast as we can” and that “there are thousands

of Arkansans currently trying to navigate the system, just like she is, and that they are all

being treated the same.” But the existence of those severe circumstances does not rebut

Ms. Murguía’s specific allegations of discrimination. Ms. Kelly testified that immigration

status is generally verified at the very beginning of the claim process, that Ms. Murguía

provided proof of her status as a lawful permanent resident on or before April 11, 2020,

and that DWS never flagged any issues with Ms. Murguía’s immigration status. Ms. Kelly

suggested that DWS might have been behind in running SAVE searches, but she did not

have any documentation to show that DWS was 4 or 5 months behind, and Mr. Michaud

testified that he was not aware of any backlog in the processing of SAVE verification

requests. Additionally, in August 2020, Ms. Murguía did not have a pending application

for UI benefits that might require verification of her immigration status. Her initial claim

had been denied a month earlier when her appeal was closed, and Mr. Michaud did not

assist her in reopening her case or filing a new claim regarding her employment at Holiday

Inn. Instead, he told her that she would need to work 30 days at a new job before she

could reapply for benefits. Thus, Defendant has failed to offer a nondiscriminatory reason

for Mr. Michaud refusing to assist Ms. Murguía with her claim as to Holiday Inn and

running a federal check on her immigration status, neither of which conformed with DWS

policy, and Ms. Murguía has established at least some likelihood of success on her Title

VI claim.

Having considered the relative likelihood of success on the merits of Ms. Murguía’s

claim using the McDonnell Douglas test as the standard for intentional discrimination, the

Court turns to the question of whether Ms. Murguía will suffer irreparable harm absent a

preliminary injunction. In her affidavit accompanying her Motion, Ms. Murguía attests that

without UI benefits, she cannot pay the rent or other bills, buy enough food for her family,

or provide clothing and shoes for her son. The harm here is not purely economic—courts

have recognized that an individual suffers irreparable harm when she cannot provide for

her basic needs. See, e.g., Swanson v. Greater Metro. Hotel Emps.-Emps. Health &

Welfare Fund, 2002 WL 1402536, at *3 (D. Minn. June 28, 2002) (holding that the plaintiff

had made “a compelling showing of irreparable harm” when terminating the plaintiff’s

insurance benefits would have left her with “virtually nothing” for “food, clothing and other

basic needs” and “with the uncompromising choice of foregoing either essential items of

daily living or necessary medication”). The harm specifically attributable to DWS’s

allegedly discriminatory actions, however, is not imminent and can be redressed with

monetary damages.

First, the Court reiterates that the only plausible evidence of intentional

discrimination Ms. Murguía has presented so far relates specifically to Mr. Michaud’s

behavior on August 25 and 26, 2020. His refusal to assist Ms. Murguía, which is plausibly

alleged to be based on Ms. Murguía’s national origin, meant that she was unable to file a

claim for UI benefits in August. Fortunately, Legal Aid formally intervened on Ms.

Murguía’s behalf on September 23 and submitted the requested paystubs. The Court

concludes that Mr. Michaud’s alleged behavior resulted in a four-week delay in the

processing of Ms. Murguía’s application. But none of the evidence presented so far

suggests that there is any ongoing consequence of Mr. Michaud’s behavior in August.

Ms. Kelly was clear in her testimony that UI applications are being adjudicated in the order

they are identified. There is no evidence that the processing of Ms. Murguía’s application

will be further delayed because of the intentional discrimination of any DWS employee.

The Court is sympathetic to the hardship that Ms. Murguía has suffered during this entire

process, and the evidence suggests that Mr. Michaud’s failure to accept her paystubs

from Holiday Inn in August prolonged the delay in adjudicating Ms. Murguía’s case.

However, this is not the type of harm for which a preliminary injunction is appropriate.

Should Ms. Murguía prevail on her Title VI claim at the merits phase, she will be entitled

to compensatory damages, and the Court concludes that this is an adequate remedy for

harm that has already occurred and is not ongoing or likely to reoccur in the near future.

2. Deliberate Indifference

Ms. Murguía argues that a showing of deliberate indifference would also be

appropriate evidence of intentional discrimination under Title VI. Defendant did not make

any argument about the appropriateness of this standard in her briefing or at the hearing.

Below, the Court assumes without deciding that the deliberate indifference standard is an

appropriate test for intentional discrimination in this context and concludes that Ms.

Murguía would not be entitled to emergency relief on this theory even if it were adopted.

The deliberate indifference standard allows a court to infer intentional

discrimination “from a defendant's deliberate indifference to the strong likelihood that

pursuit of its questioned policies will likely result in a violation of federally protected rights.”

Meagley v. City of Little Rock, 639 F.3d 384, 389 (8th Cir. 2011). The Court agrees with

Ms. Murguía that DWS failed to follow state and federal language access regulations in

her case. At the hearing, Defendant did not dispute that Ms. Murguía was not offered

interpretation services on either of her visits to the Fayetteville DWS office, nor is there a

599 form in Ms. Murguía’s file permitting DWS to interact with Alejandra as Ms. Murguía’s

informal interpreter. Mr. Michaud acknowledged during his testimony that he had an

obligation to inform Ms. Murguía of the availability of free translation services if he

identified her as an LEP claimant. The Court does not find it credible that a DWS

employee who spoke to Alejandra in English, saw her turn and converse with Ms. Murguía

in Spanish and then turn back and speak again to the employee in English, would not

have understood that Alejandra was acting as an informal interpreter and that the staff

member should offer formal services. Though Defendant emphasizes that Ms. Murguía

never requested translation services, DOL guidance clearly puts the responsibility on the

agency, not the claimant, to identify language barriers and provide access options. And

while Defendant presented photos of signs and materials in Spanish provided at the DWS

office in Fayetteville, none of the photos depicted anything communicating the availability

of free interpretation services. Thus, Ms. Murguía has demonstrated that the DWS likely

violated DOL and internal language access policies by not offering or posting formal

interpretation services on either of her visits.

The Court also agrees that DWS’s written communication with Ms. Murguía may

not satisfy federal requirements. For example, the Babel notice contained on some of the

forms Ms. Murguía received in the mail may not provide all the information required by

the federal regulations.4 The Notice of Telephone Hearing, containing instructions about

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Ms. Murguía’s appeal hearing, and the Decision of Hearing Officer, which includes appeal

instructions, likely fit the definition of vital information but contain no Spanish whatsoever.

Ms. Parra testified that only the UI handbook, application, and weekly claim form are

available in hard copy in Spanish at DWS offices. Many translated forms are available

only through the website, and none of the mail Ms. Murguía received in English directed

her to Spanish versions of those forms online, nor is there a way for her to receive

assistance by phone. Based on the evidence presented, the Court finds it plausible that

DWS may not be in full compliance with DOL requirements regarding vital information.5

4F

But while the Court agrees that DWS has not adhered to language access

requirements, it also finds that Ms. Murguía has not presented sufficient evidence at this

juncture to suggest that the allegedly erroneous deprivation of her right to UI benefits was

due to DWS’s failure to adhere to the language access requirements and that full

4 The Court also notes that the Babel notice that appears on some of the documents Ms.

Murguía received from DWS is not the same as the Babel notice Insert specified in the

Limited English Proficiency Vital Documents Compliance Report. See Def. Exh. 4, p. 7.

5 Evidence was also presented at the hearing that DWS may not be complying with DOL

guidance regarding the administration of PUA. Plaintiff’s counsel asked Ms. Kelly about

her understanding of DWS’s obligation to inform claimants about their potential eligibility

for PUA. Ms. Kelly testified that her understanding was that DWS could “inform via social

media, our website, press release, things to that nature” and that DWS “didn’t need to

inform [an] individual” personally of his or her potential eligibility. However, when

presented with UIPL 16-20, she acknowledged that her understanding was inconsistent

with the DOL’s guidance. See Dep’t of Labor, Emp. & Training Admin., Unemployment

Insurance Program Letter No. 16-20 Change 1, Attachment 1, at I-2 (Apr. 27, 2020). Ms.

Murguía did not receive any information about PUA when her UI claim was initially denied.

Based on this evidence, the Court could conclude that DWS is not in compliance with

federal guidelines for administering PUA. However, Ms. Murguía was not injured by this

possible noncompliance because she has been granted an initial phase of UI benefits,

and DWS has indicated that she can now be considered for additional benefits. See Doc.

45-1, p. 1.

compliance with the applicable regulations in her case would have prevented the delay

she has endured. Ms. Murguía insists that she wrote down the correct last employer on

her initial application and that the error was introduced by the DWS staff member who

input the information into the computer, and the Court finds that account credible. But

this means that the initial error resulted not from Ms. Murguía’s misunderstanding of a

form that was not provided to her Spanish but from a clerical error. When she tried to

correct this error in response to the Notice of Monetary Determination, Ms. Murguía did

not assert that she did not understand the problem or know how to correct it. In fact, she

was able to fax a letter to DWS informing them of the issue. Similarly, Ms. Murguía does

not argue that she failed to pursue her appeal in July because she did not understand the

requirements or because she did not know interpretive services were available. Rather,

she misunderstood the best way to remedy the error—a mistake that was due to a lack

of knowledge about the UI process but not a language barrier, especially since Ms.

Murguía was likely advised in this step by counsel. In August when Mr. Michaud refused

to accept her paystubs, Ms. Murguía does not allege that this was because they did not

understand each other but rather because of his intentional discrimination against her as

a Mexican immigrant. Thus, even if the Court accepts DWS’s deliberate indifference to

the regulations as evidence of intentional discrimination, Ms. Murguía has not shown a

causal link between this discriminatory conduct and her inability to access UI benefits.

Thus, Ms. Murguía has not shown a likelihood of success on the merits of this claim.6

5F

6 During the hearing, both Ms. Kelly and Ms. Parra testified that a claimant can be flagged

as needing Spanish-language services in DWS’s case management system. Ms. Kelly

testified when she reviewed Ms. Murguía’s file, Ms. Murguía had not been flagged as

needing such services. The Court expects that at this point, if Ms. Murguía or her counsel

have requested that her file be so flagged, DWS has done so and is following the

B. Procedural Due Process

Next, the Court turns to the merits of Ms. Murguía’s procedural due process claim.

To establish a procedural due process violation, the plaintiff must show that “(1) he had

a life, liberty, or property interest protected by the Due Process Clause; (2) he was

deprived of this protected interest; and (3) the state did not afford him adequate

procedural rights prior to depriving him of the property interest.” Stevenson v. Blytheville

Sch. Dist., 800 F.3d 955, 966 (8th Cir. 2015). Three factors are appropriate for

consideration when determining whether the requirements of the Due Process Clause

were satisfied or whether more process is due:

First, the private interest that will be affected by the official action; second,

the risk of an erroneous deprivation of such interest through the procedures

used, and the probable value, if any, of additional or substitute procedural

safeguards; and finally, the Government’s interest, including the function

involved and the fiscal and administrative burdens that the additional or

substitute procedural requirement would entail.

Mathews v. Eldridge, 424 U.S. 319, 335 (1976).

Ms. Murguía asserts that she has a property interest in UI benefits and that she

has been constructively deprived of that interest by Defendant’s unreasonable delay in

adjudicating her claim for benefits. Defendant does not dispute that Ms. Murguía has a

protected interest in UI benefits and acknowledges that a substantial and unreasonable

delay may constitute a deprivation. Based on the evidence before it, the Court concludes

that DWS made multiple errors in Ms. Murguía’s case. First, it is likely that a DSW

applicable procedures for communicating with Ms. Murguía in light of this designation.

However, as discussed above, since the evidence presented thus far does not establish

a likelihood that Ms. Murguía’s alleged harm is due to the inadequacy of DWS’s

accommodations for LEP claimants, the Court finds it inappropriate at this juncture to

order DWS to modify its language access policies and procedures.

employee entered the incorrect last employer when inputting Ms. Murguía’s form rather

than following up with her when wages from Holiday Inn did not appear in the computer

system. Second, in adjudicating Ms. Murguía’s claim, DWS failed to consider her note in

response to the Notice of Monetary Determination informing DWS that it had made an

error as to her last employer. As a result, Ms. Murguía’s initial claim was adjudicated

based on the incorrect last employer and she was denied benefits.

The Court cannot find that Ms. Murguía’s procedural due process rights were

violated by these errors, however, because there was an opportunity for Ms. Murguía to

appeal the initial adjudication. The testimony before the Court suggests that if Ms.

Murguía had appeared at the hearing that she initially requested before the Appeal

Tribunal, she would have had the opportunity to point out the error and her claim would

have been remanded to DWS for adjudication with the correct last employer. It was Ms.

Murguía’s own decision, likely on the advice of counsel, to withdraw her request for a

hearing with the intention of opening a new claim with the correct last employer, and by

doing so, she stepped out of her place in line.

DWS’s next error occurred when Ms. Murguía visited the DWS office in August

and was directed to return with paystubs to prove her employment at Holiday Inn. The

Court credits Ms. Murguía’s account of her experience at DWS’s Fayetteville office on

those dates, in particular Mr. Michaud’s failure to take the documents she offered and flag

her case for further review. Both Ms. Kelly and Mr. Michaud testified that DWS procedure

would have been for Mr. Michaud to take and scan any documents Ms. Murguía provided.

This error resulted in a four-week delay—until Legal Aid intervened on Ms. Murguía’s

behalf on September 23, 2020, to have the paystubs added to Ms. Murguía’s file and her

initial eligibility determination withdrawn. While this was no doubt a hardship for Ms.

Murguía, it was not a delay of unconstitutional proportions.

The delay that is most troublesome to the Court is the delay that began on

September 23, 2020, when DWS rescinded its previous determination and reopened Ms.

Murguía’s claim. Six months passed before Ms. Murguía’s claim was adjudicated, and

she has only recently been approved for benefits through July 18, 2020. Now it appears

that she must complete yet additional applications and await further determinations on

her eligibility for benefits in subsequent weeks. Considering that UI provides subsistence

benefits to replace lost income, and claimants are likely in urgent need of those benefits,

this delay puts a severe burden on applicants awaiting adjudication of their claims.

The Court recognizes that the COVID-19 pandemic has placed enormous

demands on the UI system, but a full year has now elapsed since the pandemic began.

The Court can imagine that the state government might have an obligation under the Due

Process Clause to shift resources in order to respond adequately to the magnitude of the

need. Ms. Kelly testified there were seven vacancies in the adjudication department as

of March 15, 2021. She testified that DWS has made requests for assistance from other

departments and even from the National Guard, but as of the hearing, DWS continued to

be understaffed. Thus, the Court will not rule out the possibility that a lengthy delay in the

delivery of subsistence benefits that, under normal circumstances, DOL expects to be

delivered within 35 days of a layoff, may constitute a delay of constitutional proportions,

even in the context of the COVID-19 pandemic. See Islam v. Cuomo, 475 F. Supp. 3d

144 (E.D.N.Y. 2020) (holding that plaintiffs demonstrated a likelihood of success on the

merits of their claim that a review process that took approximately three months violated

42 U.S.C. § 503(a)(1), which requires that unemployment benefits be paid “when due,”

and granting a preliminary injunction that required the state agency to designate, on-

board, and train additional staff within seven days to deal with a backlog of appeals).

Despite the potentially unconstitutional nature of this delay, however, the Court

concludes that the requested relief—expediting the consideration of Ms. Murguía’s

claim—is not in the public interest. The Court disagrees with Ms. Murguía’s

characterization that “[s]he is not jumping the line in any sense. If anything, owing to

DWS’s actions, the line has been jumping her.” (Doc. 24, p. 39). Even though DWS has

made multiple mistakes in handling Ms. Murguía’s claim, those errors are not the reason

that Ms. Murguía’s claim is still pending today. The evidence presented suggests that if

she had taken her appeal in July, her claim would have been resolved several months

ago. The delay since September is not due to anything specific to Ms. Murguía’s claim.

Rather, it is the result of an overburdened system to which the state has not committed

sufficient resources to meet the public need. Moving Ms. Murguía to the front of the line

would assuage her constitutional violation, should one be found, but simultaneously

deepen the harm suffered by every other person who has been waiting just as long.

Therefore, the Court concludes that the balance of the equities does not favor an

injunction expediting consideration of Ms. Murguía’s claims for additional UI benefits.

Additionally, Ms. Murguía has recently received approximately $13,000 in benefits.

As discussed above, the deprivation of subsistence benefits can be an irreparable harm,

but the payment of this initial phase of benefits likely alleviates Ms. Murguía’s most severe

harm, and the risk of irreparable harm from additional delay is not certain and imminent

at this point.

IV. CONCLUSION

For these reasons, IT IS ORDERED that Plaintiffs Amended Motion (Doc. 35) is

DENIED. Count Ill of the Complaint, the state law claim, is DISMISSED WITH

PREJUDICE as this Court lacks jurisdiction to hear that claim.

IT IS SO ORDERED on this 23rd day of April, anil]

a)

PTIVIOPAY If BROOKS

© UNITED STATES DISTRICT JUDGE

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