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Prime examples of employment discrimination claims that failed and why 04 02-2011

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Who is and who is NOT a "protected individual" under the INA for employment purposes?

Who is and who is NOT a "protected individual" under the INA for employment purposes?

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  • 1. Prime Examples of Employment Discrimination Claims That Failed and WhyCase Brought by: GLORIA ONDINA-MENDEZ on August 21, 2000:Ondina-Mendez v. Sugar Creek Packing Co., 9 OCAHO no. 1075 was an ORDER DENYINGMOTION FOR SUMMARY DECISION issued on September 20, 2001, in which Marvin H.Morse, ALJ found that there was a dispute as to material facts that would be crucial in decidingthe issues in the case. In the case, Ms. Mendez claims 1.) document abuse and/or 2.) citizenshipstatus and national origin discrimination. “Whether and what Mendez provided as work authorization is in dispute. I am unable to conclude that there is not a genuine dispute of material fact. At this juncture the motion for summary decision is denied. The disputed facts create a cloud that may be cleared up at a prehearing conference. At a minimum, counsel and the bench will explore the potential for resolving the dispute on an agreed paper record, leaving for judicial determination the consequences of actions taken without need for a confrontational evidentiary hearing.”Mendez was a TPS recipient from Honduras whose EAD had expired. She showed the FR Noticethat provided for an automatic extension but apparently did not present the expired EAD to backit up. At this point it was a “he said-she said” situation and therefore unsuitable for summaryjudgment. (Judge Morse retired and the case was reassigned to in February 2002).Ondina-Mendez v. Sugar Creek Packing Co., 9 OCAHO no. 1085 was the “FINAL DECISIONAND ORDER” issued on November 5, 2002, in which Judge ROBERT L. BARTON, JR held: “This decision adjudicates the issue of liability raised in the Complaint that Gloria Ondina-Mendez (Complainant) filed against Sugar Creek Packing Co. (Respondent). The allegation that Complainant was fired based upon her citizenship status in violation of 8 U.S.C. § 1324b(a)(1) is dismissed on the jurisdictional ground that she is not a “protected individual.” The allegation that Complainant was fired based upon her national origin in violation of 8 U.S.C. § 1324b(a)(1) is dismissed because, based on the number of employees Respondent employs, it is a cognizable Title VII claim, and not within this tribunal’s jurisdiction. Complainant’s citizenship status-based document abuse claim under 8 U.S.C. § 1324b(a)(6) is dismissed on the jurisdictional ground that Complainant is not a “protected individual.” Finally, regarding Complainant’s national origin-based document abuse claim under 8 U.S.C. § 1324b(a)(6), I find that Complainant has failed to show an intent by Respondent to discriminate against an individual in violation of 8 U.S.C. § 1324b(a)(1).” Section I. on p. 1 “In sum, the disputed factual issues listed in the FPO have been resolved as follows: Respondent did not have a copy of Complainant’s expired EAD in its files at the time Complainant’s employment was terminated. Complainant did not provide Respondent with her original EAD that had or would expire during the time period in question. Lynda Foss and Krissie Holcombe contacted the INS to determine if Complainant could be lawfully employed by Respondent. They were told by an INS agent named Candelaria 1
  • 2. that Complainant could not lawfully be employed. For the purposes of determining liability, it is unnecessary to resolve whether Idalia Mendez advised Krissie Holcombe and Lynda Foss that the INS had Complainant’s original EAD in its possession. Complainant did not provide Respondent with her expired EAD. Complainant did provide other documents, but none of the documents informed Respondent that Complainant had an EAD that indicated C-19 status at the time in question, and I find that prior to the time Complainant was fired, Respondent was not aware that Complainant had an EAD that indicated C-19 status.” Section IV. on p. 11 “….Because Complainant is not a protected individual, there is no subject matter jurisdiction of her section 1324b(a)(1) citizenship status discrimination claim, and I must dismiss the claim for lack of jurisdiction. See, e.g., Garcia v. Tia Maria’s Cantina & Mexican Resteraunte, 7 OCAHO no. 970, 773, at 775-77, 1997 WL 1051464, at *2-3 (OCAHO 1997) (dismissing a citizenship status discrimination claim made by a non- protected individual for lack of subject matter jurisdiction); Speakman v. The Rehabilitation Hosp. of South Tex., 3 OCAHO no. 469, 743, at 746, 1992 WL 535627, at *2-3 (OCAHO 1992).” Section V.A.1 on p. 12Mendez was a TPS recipient and that status does not qualify as a “protected individual” underthe INA for employment and hiring decisional purposes. Under the INA, it is NOT UNLAWFULfor an employer to even decline to hire an LPR who is eligible to apply for naturalization but hasnot done so beyond six months from becoming eligible as described in INA § 274B (a)(3)(B)(i),or (ii) by not actively pursuing eligibility for naturalization. It is also NOT UNLAWFUL to:show a preference by hiring a citizen rather than an LPR (or other work authorized immigrant)who is equally qualified based solely on the fact of citizenship status. INA § 274B (a)(4). [SeeUnited States v. Southwest Marine Corp., 2 OCAHO 400 (June 9, 1989)1.]INA § Sec. 274B [8 USC2 § 1324b] Unfair immigration-related employment practices(a) Prohibition of discrimination based on national origin or citizenship status (1) General rule It is an unfair immigration-related employment practice for a person or other entity todiscriminate against any individual (other than an unauthorized alien, as defined in [INA 274A(h)(3)] section 1324a(h)(3)3 of this title) with respect to the hiring, or recruitment or referral fora fee, of the individual for employment or the discharging of the individual from employment-- (A) because of such individuals national origin, or (B) in the case of a protected individual (as defined in paragraph (3)), because of suchindividuals citizenship status. (2) Exceptions Paragraph (1) shall not apply to-- (A) a person or other entity that employs three or fewer employees,1 Found at: http://www.justice.gov/eoir/OcahoMain/publisheddecisions/Hardbound/Volume2/400.pdf2 Within the cited/quoted text of this statute “section” is referring to 8 USC and its INA counterpart is bracketed.3 Definition of unauthorized alien.-As used in this section, the term "unauthorized alien" means, with respect to theemployment of an alien at a particular time, that the alien is not at that time either (A) an alien lawfully admitted forpermanent residence, or (B) authorized to be so employed by this Act or by the Attorney General. 2
  • 3. (B) a persons or entitys discrimination because of an individuals national origin if thediscrimination with respect to that person or entity and that individual is covered undersection 703 of the Civil Rights Act of 1964 [42 U.S.C. 2000e-2], or (C) discrimination because of citizenship status which is otherwise required in order tocomply with law, regulation, or executive order, or required by Federal, State, or localgovernment contract, or which the Attorney General determines to be essential for an employerto do business with an agency or department of the Federal, State, or local government. (3) ``Protected individual defined As used in paragraph (1), the term ``protected individual means an individual who-- (A) is a citizen or national of the United States, or (B) is an alien who is lawfully admitted for permanent residence, is granted the statusof an alien lawfully admitted for temporary residence under [INA 210] section 1160(a) or [INA245(a)(1)]1255a(a)(1) of this title, is admitted as a refugee under [INA 207] section 1157 of thistitle, or is granted asylum under [INA 208] section 1158 of this title; but does not include (i) analien who fails to apply for naturalization within six months of the date the alien first becomeseligible4 (by virtue of period of lawful permanent residence) to apply for naturalization or, iflater, within six months after November 6, 1986, and (ii) an alien who has applied on a timelybasis, but has not been naturalized as a citizen within 2 years after the date of the application,unless the alien can establish that the alien is actively pursuing naturalization5, except that timeconsumed in the Services processing the application shall not be counted toward the 2-yearperiod. (4) Additional exception providing right to prefer equally qualified citizens Notwithstanding any other provision of this section, it is not an unfair immigration-relatedemployment practice for a person or other entity to prefer to hire, recruit, or refer an individualwho is a citizen or national of the United States over another individual who is an alien if the twoindividuals are equally qualified.*****While Mendez was not an “unauthorized alien” she bore the burden of proof to demonstrate toher employer that she was authorized to be employed in the United States. Her claim failed basedon a failure to provide the required evidence of her authorization as had been spelled out by INSin a TPS Re-Registration and EAD Extension Notice published on June 9, 2000, at 65 Fed. Reg.at 36719-36720. The employer did nothing wrong.The judge ultimately found: “In conclusion, there is not a scintilla of evidence demonstrating discriminatory purpose or intent. The evidence demonstrates that Respondent continually went out of its way to help Complainant, and gave her every opportunity to remain employed. In this context, I find that Respondent’s request for Complainant’s EAD was not made “for the purpose or4 For an in-depth discussion see: Matter of United States v. Southwest Marine Corp., 2 OCAHO 400 (June 9, 1989)found at: http://www.justice.gov/eoir/OcahoMain/publisheddecisions/Hardbound/Volume2/400.pdf5 Id. 3
  • 4. with the intent of discriminating against Complainant. Accordingly, I find that Respondent has not violated section 1324b(a)(6).” Section IV. on p. 19Case Brought by: UNITED STATES OF AMERICA based on a complaint from a lawfulpermanent resident named Jose S. Miranda on October 15, 1987:United States v. Southwest Marine Corp., 2 OCAHO 400 (June 9, 1989)6 addressed a situationwhere an LPR, Jose S. Miranda (Miranda) was not recalled from a layoff solely because he hadnot naturalized yet. Miranda immigrated in 1970, first became eligible to file for naturalization in1975, eventually filed for naturalization in 1985, and failed to naturalize the first time around.Miranda had trouble passing English requirements and withdrew his N-400 upon the advice ofthe INS Examiner and Naturalization Supervisor in order to avoid a denial and a required waitingperiod before he could re-apply. (This case arose under an older and now defunct petitioningscheme that did not require an N-300 but had a waiting period before re-filing an N-400.Former INA § 332(a) 98 USC § 1443(a)] was broader and gave the A.G. and INS greaterregulatory authority to set rules for filing a petition for naturalization.)7 Miranda tookaffirmative steps to speed up the re-petitioning process in the near future and took Englishlessons. He was not recalled to work during a period when he was actively pursuing the requiredskills to pass the examination required for naturalization, i.e. “becoming eligible.”Still “Becoming Eligible”and “Actively Pursuing Naturalization” Beyond Five (5) and Six (6)Months as an LPR:The question then remains as to how to determine what is meant by “becoming eligible”. Sincethe statute contains the parenthetical proviso: “by virtue of period of lawful permanentresidence”, it is likely that Congress intended to base that general provision on the basiceligibility requirements found in INA § 316(a). The vast majority of naturalization applicants doapply under INA § 316(a) which generally requires five (5) years of lawful permanent residentstatus upon the filing date of the form N-400, Application for Naturalization. Although,“otherwise eligible” LPRs may file up to three (3) months early per INA § 334(a), that is anoptional privilege and not a requirement and should not be used to determine the cut-off date forexclusion purposes in hiring preference. In addition, no other non-standard section of the INAthat affords an earlier filing date than the base section8 for establishing general naturalizationeligibility should be used to construe the exclusionary language in INA § 274B even if suchsection could apply to an LPR.Additional Eligibility Factors Beyond Mere Length of Time in LPR Status:There is also a whole host of other prerequisites: three (3) months residence in a State (or USISOffice jurisdiction), thirty (30) months (at least half of the time as an LPR and before filing theN-400) of physical presence in the five (5) year statutory period, maintaining “continuousresidence” within the United States, and good moral character for the required period of time. Anotherwise eligible LPR may be prevented from filing for naturalization for a limited period of6 Supra.7 See text of former INA § 332(a) at the end of this document.8 INA § 316 [8 USC § 1427] is entitled “Requirements of Naturalization” and (a) addresses “residence”. 4
  • 5. time such as: five (5) years from either the date of commission or conviction date for a minor(less than permanently disqualifying) crime (i.e., single non-deportable CIMT, non-felonydomestic violence, juvenile delinquency, other minor offense, or minor controlled substanceviolation); re-establishing “continuous residence” by waiting four (4) years and one (1) day aftera disruptive break in residence [8 CFR § 316.5(c)(1)(i) and (ii)]; or waiting ten (10) years sincequitting the Communist party when that membership does not qualify for an exception. Onemight not be barred from filing an N-400 yet still be ineligible for Oath administration until thesuccessful end of probation. All benefit applications are ultimately determined by anindividualized case-by-case analysis of the specific facts to the controlling law.INA § 332 [8 USC § 1443] Administration [Prior to 1990, this section read, in part:](a) Rules and regulations governing examination of applicants The Attorney General shall make such rules and regulations as may be necessary to carry intoeffect the provisions of this part and is authorized to prescribe the scope and nature of theexamination of applicants for naturalization as to their admissibility to citizenship for thepurpose of making appropriate recommendations to the naturalization courts. Such examination,in the discretion of the Attorney General, and under such rules and regulations as may beprescribed by him, may be conducted before or after the applicant has filed his petition fornaturalization. Such examination shall be limited to inquiry concerning the applicants residence,physical presence in the United States, good moral character, understanding of, and attachmentto the fundamental principles of the Constitution of the United States, ability to read, write, andspeak English, and other qualifications to become a naturalized citizen as required by law, andshall be uniform throughout the United States. [Italics portion was stricken by the 1990amendment. The INS previously had broader discretionary regulations in accordance with thatstricken language.] 5