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I-9 E-Verify Immigration Compliance

OCAHO Dismisses Employee's Citizenship Discrimination and Retaliation; Bruce Buchanan

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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).***

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Updated 09-10-2013 at 08:12 AM by BBuchanan

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