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I-9 E-Verify Immigration Compliance

I Was Not Hired So I Must Have Been Discriminated Against

Rating: 2 votes, 1.50 average.
By Bruce Buchanan, Sebelist Buchanan Law
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In two bizarre cases, involving the same individual, the Office of Chief Administrative Hearing Officer (OCAHO) found the complainant had not actually filed a charge with the Office of Special Counsel for Immigration -Related Unfair Employment Practices (OSC), nor, receive a right to sue letter; thus, her cases were dismissed by OCAHO. See Jablonski v. Robert Half Legal, 12 OCAHO no. 1272 (2016), and Jablonski v. Yorkson Legal, 12 OCAHO no. 1273 (2016).

In a nutshell, Jablonski claimed she applied for paralegal jobs from 2006 to 2014 with Robert Half Legal and Yorkson Legal, two legal recruitment companies, and had never been hired for any of the advertised positions. Jablonski did not have a scintilla of evidence of why she was not hired, but alleged to OSC that it was due to her citizenship status. Furthermore, she alleged these recruitment companies must have been recruiting/hiring “an illegal or visa applicant and/or fraudulently posting jobs that are not filled on their website and other websites.”

Interesting, as a paralegal, she had difficulties following OCAHO rules concerning the filing of a complaint. As an example, she attached 54 pages of materials to her complaint even though no such “attachments are sought or encouraged” under OCAHO rules.

Ultimately, OCAHO found, based upon written responses from OSC, that Jablonski’s assertions that she filed charges with the OSC on October 10, 2014, were incorrect. The true facts were that Jablonski attempted to file a charge with OSC, but OSC responded to Jablonski that she needed to provide “specific information” about the discrimination. Jablonski responded to the letter but without specific information; thus, the OSC dismissed her charges for “lack of reasonable cause.” The OSC never provided her a letter stating she had the right to file a complaint with the OSC.

Without Jablonski providing any information of discrimination, the OSC did not conduct an investigation nor issue her a “90 day” (also sometimes referred to as “right to sue”) letter. Thus, OCAHO had no basis of hearing the case and it was dismissed without leave to amend.

The lesson of those cases is anyone can attempt to file an action with the OSC (or a court), but one must have evidence of discrimination or a violation of the law for the case to go forward. The argument that I must have been discriminated against because I was not hired is a ludicrous charge and will be dismissed by a government agency or court on every occasion it is filed

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Comments

  1. What?'s Avatar
    Why does a person have to present evidence to even file a charge or get an investigation?
  2. What?'s Avatar
    Why does a person have to present evidence to even file a charge or get an investigation when they won't tell you who they hire?
  3. 321S's Avatar
    You're discouraged from attaching 54 pages of evidence to your claim? How is somebody supposed to prove the case?
  4. j123's Avatar
    The hearing examiner erroneously decided the Robert Half decision as she omitted an important fact.: Robert Half admitted under oath in discovery in its answer to request for admissions that of its permanent paralegal hiring it does not have and did not retain I-9 information on who it referred to clients, and that it only had I-9 information on temporary its paralegal positions applicants. This was submitted to the court in the proposed amended complaint.

    The plaintiff also was extremely well qualified as a paralegal, had experience, and was well educated having attended an ivy league level college and had presented evidence in robert halfs own records of good performance reviews by its clients.
    The hearing examiner also refused to hear any evidence or allow her to amend her complaint to include any of this or conduct further discovery.
    It never was even made to produce even one name of anyone it hired or any reason. Instead of dismissing her complaint completely, it should have been sent back to investigate as the department has a mandatory statutory duty under the administrative regulations to investigate every complaint.
    The statement in the decision that she did not follow directions was unjustly insulting to the plaintiff as she presented information to the ocaho court that she followed up with the information requested.
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