Travis John Guth v. Kaiser Permanente Hawaii

Posted by NYC Attorney Norka M. Schell

Law Offices of Norka M. Schell, LLC

www.lawschell.com 

Travis John Guth is a U.S. lawful permanent resident (LPR). He filed a complaint against Kaiser Permanente Hawaii, a California health maintenance organization (“Organization”) doing business in several states, including Hawaii.  Mr. Guth alleged that Organization discriminated against him by firing him because of his citizenship status and national origin and that Organization engaged in document abuse.

Mr. Guth was hired on or about January 12, 2010. He presented a driver's license and social security card in connection with his I-9 on which he indicated to Organization that he was a U.S. citizen. On or about March 23, 2011, Mr. Guth filed a charge with the OSC. He also filed a charge with the Equal Employment Opportunity Commission (EEOC). The OSC sent him a determination letter dated August 3, 2011, authorizing him to file a complaint with OCAHO, which he did on October 20, 2011.

OCAHO Administrative Law Judge (ALJ) Ellen K. Thomas first dismissed the national origin charge, noting that Mr. Guth acknowledged that Organization has more than 15 employees and pointing out that by statute a national origin discrimination complaint against an employer with 15 or more employees is outside OCAHO jurisdiction. Rather, INA § 274B(a)(2)(B) provides that the INA's prohibition of national origin discrimination does not apply in cases covered under § 703 of the Civil Rights Act of 1964,  42 USCA 2000e-2 (2006) (Title VII), and these claims must be directed to the EEOC. ALJ Thomas then dismissed the citizenship charge because an action for citizenship status discrimination under § 274B may only be maintained by a protected individual, which Mr. Guth is not.  INA § 274B(a)(3)(B) provides that an LPR may be a “protected individual” but not if he or she fails to apply for naturalization within six months of becoming eligible or, after applying on a timely basis, fails to naturalize within two years after the date of application (with exceptions not applicable to this matter). Since Mr. Guth's complaint asserted that he became an LPR on September 14, 1979, and that he became eligible to apply for naturalization on May 27, 1984, but he did not apply until December 15, 1996, and he apparently never naturalized, he was not a protected individual within the meaning of INA § 274B(a)(3) at the time of the alleged discrimination, and he therefore lacked standing to maintain the claim before OCAHO.

Thus, the only claim that OCAHO could consider was the claim of document abuse. This claim was dismissed for lack of merit.

ALJ observed that Organization in its motion for summary decision or dismissal asserted that, as a federal contractor, it was obligated to participate in E-Verify and, in a human resources (HR) representative's declaration accompanying that motion, that Mr. Guth's information was first put through E-Verify on May 31, 2010, as part of a bulk upload of I-9s, and that Organization received a tentative non-confirmation (TNC) because of a conflict about his citizenship status.

In the Section 1 of his I-9, Mr. Guth stated that he was a U.S. citizen, but other records could not confirm that. An HR representative met with Mr. Guth on November 15, 2010, at which time he continued to insist that he was a U.S. citizen but denied that he ever had a permanent resident alien card or a certificate of naturalization, so his information was resubmitted to E-Verify, and another TNC was received.  Mr. Guth was then referred to the Social Security Administration (SSA). On November 22, 2010, Organization received a final non-confirmation (FNC) notice, and Mr. Guth was notified of this FNC, at which time, the HR representative again inquired about a permanent resident alien card or a certificate of naturalization. This time Mr. Guth said that he had a permanent resident alien card but that he did not have it with him. Mr. Guth was advised that the Department of Homeland Security (DHS) might be able to help him, and the HR representative spoke to DHS, which advised Organization to close the case and start a new E-Verify request. Mr. Guth then presented an alien resident card, a foreign birth certificate, and adoption papers, but the alien card did not have Mr. Guth's name on it; rather, it was in the name of another person, “Ruiz Arevalo, Walter Orlando.” The HR representative could not submit the case to E-Verify for that reason. The declaration of Organization's manager of employee and labor relations in Honolulu, Hawaii, stated that she was informed of the FNC on or about December 3, 2010, and she then informed Mr. Guth that his employment was being terminated. That declaration also stated that no employee who receives a FNC from E-Verify is retained by Organization.

Mr. Guth in response asserted that an E-Verify error was the motivating factor in his termination, but, in the words of ALJ, “wholly missing ... [was] any evidence that could support any inference that Organization intended to discriminate against Mr. Guth on any prohibited basis”; rather, she said, it appeared that Organization wanted to keep Mr. Guth as an employee but was unable to do so.  Moreover, she said, even assuming argued that Mr. Guth could present a prima facie case, Organization proffered a legitimate nondiscriminatory reason for terminating him--it was required to do so after receiving a FNC from E-Verify and had no choice in the matter. She pointed out too that what Mr. Guth characterized as an E-Verify error was in fact his own error--he checked the box stating that he was a U.S. citizen when in fact he was not, and E-Verify could not reconcile this claim with other records because Mr. Guth did not indicate his correct status as a LPR. Accordingly, the complaint was dismissed.