OCAHO Dismisses Employee's National Origin and Citizenship Discimination and Retaliation; by Bruce Buchanan

Bruce Buchanan

OCAHO Dismisses Employee's National Origin and Citizenship Discimination and Retaliation; by Bruce Buchanan, Siskind Susser

Jose Pablo Martinez, a U.S. citizen, filed a Complaint under the Immigration Reform and Control Act alleging Superior Linen (Superior) fired him because of his citizenship status and national origin and in retaliation for complaints he made about the company preferring unauthorized workers.

Martinez’s allegations of discrimination on the basis of national origin were dismissed*because IRCA's prohibition of national origin discrimination does not apply in cases where the employer has more than 15 employees; rather, such an allegation must be brought under Title VII.**Superior has more than*15 employees.

Superior stated Martinez was terminated because of his poor job performance, for advising fellow workers to slow down production to gain more work hours, and*for refusing to clock in and out for lunch. Martinez states he was terminated because of his citizenship status and for his reporting violations of*IRCA*and OSHA rules.*Martinez asserts four undocumented workers were kept after his termination. Martinez denied Superior's allegations.**

OCAHO found two of the four employees cited by Martinez were not similarly situated.* As for the other two employees, there was no indication that either engaged in conduct of comparable seriousness to Martinez’s own conduct. In order to establish an inference of discrimination based on disparate treatment of similarly situated individuals, the employee must show that the potential comparators are similarly situated in all material respects.

Concerning*his retaliation allegation, OCAHO assumed Martinez met his initial burden*to prove a prima facie, which OCAHO descrided as "so minimal–the degree of proof*.... does not even need to rise to the level of a preponderance of the evidence."*However, Superior then met its burden of production by proffering two reasons for his discharge: poor performance and failure to follow company rules, which shifted the burden of production back to Martinez to demonstrate a factual issue as to legitimacy of Superior’s explanation of his termination.

OCAHO found Martinez provided no evidence that would permit a reasonable factfinder to believe that the reasons Superior Linen gave for firing him were false, or the true reason was discrimination on the basis of his U.S. citizenship status or retaliation for protected*conduct.* Therefore, OCAHO granted Superior's Motion for Summary Judgment.*

This case is one of the rare OCAHO decisions which does not involve ICE's*allegations that a*company violated IRCA by hiring and employing undocumented workers or committing substantive violations in the preparation of I-9 forms.* Instead, it began at the Office of Special Counsel for Unfair Immigration-Related Employment Practices (OSC).

About The Author

Bruce E. Buchanan is an attorney at the at Nashville Office of Siskind Susser, P.C. He represents individuals and employers in all aspects of immigration law, with an emphasis on immigration compliance for employers, and employment/labor law. Mr. Buchanan received his law degree from the Vanderbilt University School of Law in 1982 and a B.S. degree from Florida State University, where he graduated magna cum laude. Mr. Buchanan has been in private practice since 2003. Beforehand, he served as Senior Trial Specialist for the National Labor Relations Board for 20 years. He also served from 1991 to 2003 as Adjunct Professor at William H. Bowen UALR School of Law, where he taught courses in Labor Law and Employment Law. Mr. Buchanan was chair of the Tennessee Bar Association's Immigration Law Section from 2011 to 2012 and has been the editor of the TBA's Immigration Law Section Newsletter and the TBA's Labor and Employment Law Section Newsletter since 2009. Mr. Buchanan is a frequent writer and speaker on immigration compliance as well as labor law, wage & hour law and proposed federal legislation. He is a member of American Immigration Lawyers Association (AILA) and serves as the Advocacy Liaison of the Mid-South Chapter of AILA. Mr. Buchanan also serves on the Board of Directors for the Nashville International Center for Empowerment (NICE) and is an associate member of the Mid-Tennessee Chapter of the Associated Builders & Contractors. Mr. Buchanan is admitted to practice in Tennessee, Florida, and Arkansas, before the U.S. Court of Appeals for the Fifth, Sixth, Eighth, and D.C. Circuits and the U.S. District Courts for the Middle District of Tennessee and the Eastern and Western Districts of Arkansas.

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