By: Bruce E Buchanan, Sebelist Buchanan Law



In Galindo v. Smithfield Foods & Yuma County, 14 OCAHO no. 1369 (Aug. 18, 2020), the Office of Chief Administrative Hearing Officer (OCAHO) dismissed Galindo’s allegations of discrimination based on his citizenship status and national origin in violation of 8 U.S.C. § 1324b(a)(1), retaliation and document abuse.

Galindo is a foreign national from Mexico who is authorized to work in the United States pursuant to a TN visa. On May 10, 2019, Galindo filed a charge with the Immigrant and Employee Rights Section (IER) against Smithfield Foods and Yuma County alleging discrimination based on his citizenship status and national origin, retaliation, and document abuse. On October 15, 2019, IER sent Galindo a letter of determination informing him that IER was dismissing his charge because as a TN visa holder, he was not a protected individual for citizenship status discrimination; IER lacked jurisdiction over the national origin claim because Smithfield Foods employs 15 or more employees; Galindo’s charge did not provide facts supporting his claim for unfair documentary practices or retaliation; and the charge did not provide any details about how Yuma County was involved in the alleged discriminatory or retaliatory acts.

Galindo explained he was fired because he had an accident at Smithfield Foods. Furthermore, he asserted Smithfield asked him for more or different documents than required for the Form I-9 verification process, and Smithfield Foods refused to re-hire him after he applied for a position on March 5, 2018. Galindo also explained “the police of Yuma, IC3 of FBI and other lawyers & agencies” have been intimidating and harassing him for two years.

Smithfield Foods timely filed an answer and a Motion to Dismiss (“Smithfield’s Motion”) on March 3, 2020 arguing: (1) Galindo did not file a timely charge of discrimination with IER; (2) OCAHO lacks jurisdiction over the national origin claim because Respondent employs more than 15 employees; (3) OCAHO lacks jurisdiction over Galindo’s citizenship discrimination claims because Galindo is not a protected individual. On April 20, 2020, Yuma County timely filed an answer and a Motion to Dismiss.

OCAHO found the claims against Smithfield Foods are time-barred because the charge was filed more than 180 days after the alleged discriminatory practice. Here, Galindo filed a charge with IER on May 10, 2019 and Galindo asserted Smithfield refused to hire him on March 5, 2018; Smithfield Foods fired him on October 2, 2013; Smithfield Foods refused to accept the documents he presented to prove his identify and/or he was authorized to work in the United States on October 2, 2013; Smithfield Foods asked him for more or different documents than required for the employment verification process on July 2, 2013; and was retaliated against by Smithfield Foods in July 2013.

OCAHO found it did not have jurisdiction to hear Galindo’s claims against Yuma County because Galindo did not allege an unfair immigration-related employment practice under 8 U.S.C. § 1324b, which is limited to claims that involve the hiring, recruitment, or discharge of employees, retaliation for engaging in protected conduct, and document abuse. Nothing in the language of § 1324b suggests that it could encompass claims regarding police harassment that are unrelated to employment. Moreover, the complaint does not allege that Yuma County retaliated against Galindo for engaging in a protected act.

If you want to know more information on issues related to citizenship status and national origin 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.