By: Bruce Buchanan, Sebelist Buchanan Law



In Sharma v. Neiman Marcus Group, 13 OCAHO no. 1323 (July 19, 2019), Office of Chief Administrative Hearing Officer (OCAHO) found the employee’s complaint that he was discriminated due to his citizenship status should be dismissed because it is barred by Ashutosh Sharma (also referred to as Complainant) knowingly and voluntarily signing two settlement agreements wherein he agreed to resign and release Neiman Marcus from all claims.

Sharma, a U.S. citizen, was hired by Neiman Marcus on August 1, 2017. Sharma filed a complaint, on September 10, 2018, with the Immigration and Employee Rights Section (IER) of the Civil Rights Division within the Department of Justice. On October 15, 2018, the IER dismissed the charge because Sharma did not allege unlawful conduct under 8 U.S.C. § 1324b.

On December 31, 2018, Sharma filed a complaint with OCAHO alleging Neiman Marcus retaliated against him and terminated him in violation of § 1324b. The complaint alleged Neiman Marcus utilizes a different hiring process for employees who are U.S. citizens and non-citizen employees and treats contract employees and non-citizen employees better than U.S. citizen employees. Additionally, Sharma alleged Neiman Marcus gives non-citizens two weeks’ notice before it terminates them, but Neiman Marcus only gave Sharma 86 minutes to sign a settlement agreement and general release and agree to resign. Neiman Marcus timely filed an Answer and Motion to Dismiss.

Besides his IER/OCAHO complaint, Sharma filed charges with the EEOC, NLRB, and Texas Workforce Commission’s Civil Rights Division in August and October 2018.

On October 19, 2018, Sharma and Neiman Marcus executed a Settlement Agreement and General Release (Release I), wherein Sharma agreed to resign immediately and release all claims, including under IRCA against Neiman Marcus, except claims under the ADEA, in return for settlement payment. Additionally, Sharma agreed to take all necessary steps to withdraw the Texas Workforce Commission, EEOC, and NLRB charges. A second Settlement Agreement was entered into on November 2, 2018, where in consideration for an additional settlement payment, Sharma agreed to release claims against Neiman Marcus under the ADEA. (Release II).

Neiman Marcus argues OCAHO should dismiss the complaint because Sharma signed Releases I and II, in which he released any and all claims against Neiman Marcus, including, but not limited to, claims arising under IRCA. Neiman Marcus alleges, and Sharma concurs, Sharma did not inform Neiman Marcus about the IER charge prior to signing the releases. Rather, Neiman Marcus alleges it first found out about the IER charge in February 2019, when it received the Complaint in this matter.

In response, Sharma asserts a paragraph in the executed settlement agreements which stated “Nothing in this Agreement prohibits or prevents Sharma from filing a charge with or participating,
testifying, or assisting in any investigation, hearing, or other proceeding before any federal, state, or local government agency. However, to the maximum extent permitted by law, Sharma agrees that if such an administrative claim is made, Sharma shall not be entitled to recover any individual monetary relief or other individual remedies.” Sharma asserts he is not attempting to collect further damages and he has brought the charge with the sole intention of highlighting the alleged various violations concerning working conditions.

OCAHO held Sharma knowingly and voluntarily entered into the releases. In so doing, OCAHO pointed out Sharma had an attorney who properly advised him of the pros and cons of signing the settlement agreements/releases. Furthermore, the releases stated, “The parties knowingly and voluntarily sign this Agreement.” In exchange for Sharma’s resignation and release of claims, Neiman Marcus agreed to pay significant consideration, which both parties admit occurred.

Both settlement agreements/releases contain very similar release provisions that specifically list IRCA. OCAHO found this specific and unambiguous language barred the Complaint because the language in the general release provisions was specific: Sharma waived all claims he may have had as of October 19, 2018 (Release I) and November 2, 2018 (Release II) against Neiman Marcus under IRCA. Contrary to Complainant’s argument, the release is not limited to claims under IRCA wherein Sharma seeks damages and other personal remedies; rather, the release covers all claims under IRCA that he might have had as late as November 2, 2019.

Second, the intent of the settlement agreement is likewise clear. The parties entered the settlement agreements after Sharma filed a charge against Neiman Marcus with the EEOC, the Texas Workforce Commission, and the NLRB. The terms of both agreements required Sharma to withdraw the charges he filed with the EEOC, the Texas Workforce Commission, and the NLRB. Further, Sharma affirmed in both agreements that he had not filed nor was presently a party to any claim against Neiman Marcus. Clearly the intent was to foreclose litigation based on events that occurred while Sharma was employed by Neiman Marcus.

It will be interesting to see if OCAHO will become more active in decision-making given that this decision was written by the new Chief Administrative Law Judge for OCAHO.

If you want to know more information on issues related to citizen status discrimination and employer immigration compliance, I recommend you read The I-9 and E-Verify Handbook, a book I co-authored with Greg Siskind, and available at http://www.amazon.com/dp/0997083379