By: Bruce Buchanan, Sebelist Buchanan Law

OCAHO Reaffirms Outcome of Procedural Issues in Discrimination Case

The Office of Chief Administrative Hearing Officer (OCAHO), in Griffin v. All Desert Appliances d/b/a ADA Repair, Inc., 14 OCAHO no. 1370 (Aug. 21, 2020), faced several procedural issues in determining whether to proceed in Griffin’s Complaint alleging discrimination based on his citizenship status, document abuse, and retaliation against him. Its decision reaffirmed existing caselaw but is worthwhile to review.

ADA Repair terminated Alvin Griffin III on August 10, 2016 allegedly due to the fact he was unable to present unexpired document(s) proving his work authorization. Griffin claimed citizenship status discrimination. Griffin also alleged ADA Repair retaliated against him in 2016, 2018, and 2020 due to its responses to other legal action he took against ADA Repair. Additionally, Griffin asserts ADA Repair committed various Form I-9 violations related to his hiring and verification.

Griffin filed a charge with IER on March 25, 2020. Although his discrimination and document abuse claims were filed outside the statutory period, Griffin argues OCAHO should find that equitable tolling applies to his IER charge.

I-9 Violations Alleged in Section 1324b Complaint

The allegation of Form I-9 violations under § 1324a was dismissed by OCAHO because OCAHO has held “[n]o private right of action or third party enforcement mechanism was included either in the employer sanctions provision or its implementing regulations, other than the right of an individual to submit a complaint to the [Department of Homeland Security] for investigation.” Alamprese v. MNSH, Inc., 9 OCAHO no. 1094, 3 (2003) (citing 8 C.F.R. § 274a.9(a)). Thus, a private individual, such as Griffin, does not have standing to file a complaint with OCAHO seeking remedies for alleged violations of Form I-9

Statute of Limitations and Tolling

Generally, the 180-day limitations period begins to run from the time the individual is informed of his termination, which in this case was August 10, 2016. Thus, to be timely filed, Griffin would have had to file the charge by February 6, 2017. OCAHO has found that equitable modification may apply for those charges filed beyond the 180-day time limit. OCAHO has found the filing period may be extended for periods during which: (1) the employer held out hope of employment or the applicant was not informed that he was not being considered; (2) the employer lulled the applicant into inaction during the filing period by misconduct or otherwise; or (3) the charging party timely filed his charge in the wrong forum.

Griffin argues his March 25, 2020 IER charge was timely filed because he timely filed charges with the Equal Employment Opportunity Commission (EEOC) on August 22, 2016 and the Nevada Equal Rights Commission on July 29, 2017. In support, Griffin cites the Memorandum of Understanding (MOU) between the EEOC and IER for the proposition that his charge was timely filed with the EEOC and since the EEOC acts as an agent for IER to accept charges, his IER charge was also timely filed, citing Caspi v. Trigild Corp., 6 OCAHO no. 907, 957, 964 (1997), and Toussaint Tekwood Assocs., Inc., (1996), 6 OCAHO no. 892 at 794 (1996) (quoting MOU, 54 Fed. Reg. 32,499, 32,500 (1989)); see MOU, 63 Fed. Reg. 5518-01, 5519 (Feb. 3, 1998). However, to be timely filed with IER pursuant to the MOU, an EEOC charge must still be filed within 180 days of the alleged unfair employment practice. The MOU does not operate to render timely a charge filed with the appropriate agency years after the unfair employment practice occurred.

Griffin filed a charge with the EEOC alleging disability discrimination on August 22, 2016 and the EEOC issued a Dismissal and Notice of Suit Rights on January 19, 2017. Even if the statute of limitations was tolled while his 2016 EEOC charge was pending, the 180-day period recommenced on January 19, 2017, and expired on July 6, 2017, over two years before filing the IER charge.

On July 29, 2017, Griffin filed a charge of disability discrimination with the Nevada Equal Rights Commission and Griffin alleges the statute of limitations was also tolled pending his IER charge. He asserts that the limitations period for filing with the state agency is 300 days. Although Griffin filed his charge with the Nevada Equal Rights Commission within the 300-day period, but beyond the 180-day period, his charge with Nevada does not extend the limitations period to make his IER charge timely.

Timing of Retaliation Claims

Griffin alleges ADA Repair engaged in multiple retaliatory actions after he filed IER charges and ADA Repair’s retaliatory actions are continuing violations. Griffin alleges he filed a charge with the EEOC on August 22, 2016. In November 2016, Griffin alleges that he filed for state unemployment insurance benefits and alleges ADA Repair retaliated against him by providing false statements to the state unemployment insurance benefits agency in November 2016. Griffin then alleges that in April 2018, he filed a wrongful termination suit against ADA Repair in Nevada state court and ADA Repair’s agent, Macinkiewich, retaliated against him for filing the suit by filing an emergency application for protection in order to interfere with his lawsuit. The Nevada state court granted the application for protection and in July 2018, he was arrested for violating the protection order. Griffin also alleges that after filing his OCAHO complaint in April 2020,

Macinkiewich applied for another emergency protection order in Nevada state court on June 15, 2020. Additionally, Griffin alleges on June 16, 2020, he was served with Macinkiewich’s petition to declare Griffin as a vexatious litigant filed in Nevada state court.

Concerning Griffin’s attempt to allege that his retaliation claims are timely based on a continuing violation theory, the Supreme Court has held each alleged retaliatory action is a separate and discrete action. National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002). Since Griffin did not file his IER charge until April 2020, his allegations of retaliation occurring in 2016 and 2018 are not timely. However, Griffin’s retaliation claims related to the June 15, 2020 application for protection order, and the June 16, 2020 petition to declare Griffin as a vexatious litigant were timely filed. Thus, those claims must go forward in litigation.

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.