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Employer Has Close Call in Discimination Case

by Tara Eberline

The full Tenth U.S. Circuit Court of Appeals has overturned an earlier ruling by a three-member panel of the same court by ruling that an employee didn’t have enough evidence of national origin discrimination to submit his claims to a jury. The case, which has received national attention, arose after the employer suspended the worker until he was able to prove he was entitled to work in the U.S. and later fired him when he demanded an apology.

HR Guide to Employment Law: A practical compliance reference manual covering 14 topics, including discrimination

We’re not sorry; you’re fired
Elite Logistics hired Ramon Zamora, a Mexican with clearance to work in the U.S. He provided his alien registration card and social security card and signed an I-9 form when he was hired. A few months later, Elite inspected the social security numbers of all of its employees when it heard the U.S. Immigration and Naturalization Service was going to inspect its facilities.

When Elite inspected Zamora’s social security number, it discovered a problem: Someone in another state had used the same number. Instead of verifying the social security information himself, Larry Tucker, Elite’s personnel director, gave Zamora an ultimatum to prove his right to work in the U.S. within 10 days or face termination. Tucker gave the same ultimatum to 34 other employees with social security number issues.

Twelve days later, Tucker suspended Zamora because he hadn’t proven his right to work in the U.S. The next day, when he showed the personnel director documents proving he was eligible to work, Tucker rejected them, saying he believed they were stolen. It was only after Tucker verified information on an officially stamped social security document that he permitted Zamora to come back to work.

Zamora then gave Tucker a letter saying that before he could consider coming back to work, he needed an apology and an explanation of why Elite had suspended him. The personnel director refused to apologize, fired him on the spot, and according to Zamora, ordered him to “get the hell out” of the building. Zamora left the building — and went to see a lawyer. He made two discrimination claims against Elite, arguing that his suspension and dismissal were discriminatory based on his national origin.

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Round 1: District court rules for employer
The district court granted Elite’s request to dismiss the case without a trial. It found that the company’s decisions to suspend and fire Zamora were legitimate business decisions because it was concerned about being fined for employing illegal aliens. All employees with social security number issues were treated the same way. Thus, there was no evidence that Elite discriminated when it suspended or fired Zamora, according to the court.

Round 2: Tenth Circuit panel reverses
Zamora appealed. A three-judge panel of the Tenth Circuit overruled the district court. It found that his testimony that Tucker had been rude and uncooperative provided enough evidence to submit the case to a jury to determine if the personnel director had an anti-Mexican bias that contributed to his decision to suspend and then fire Zamora.

Round 3: Full Tenth Circuit reverses again
Obviously unsatisfied with that result, Elite requested that the entire Tenth Circuit review the case. The court concluded that the case was important enough for the full court to rehear, and 14 judges participated in the decision. This time, Elite prevailed — but just barely. The court divided evenly on whether to dismiss Zamora’s claim that the company discriminated against him when it suspended him from work.

Seven judges believed there was sufficient evidence to let a jury decide the issue, and seven judges believed there wasn’t enough evidence from which a jury could infer discrimination. Because the judges tied, the court affirmed the district court’s decision in Elite’s favor on that claim.

On Zamora’s discriminatory termination claim, a majority of the court (nine out of the 14 judges) ruled in Elite’s favor. The court concluded that he hadn’t produced sufficient evidence that the company’s nondiscriminatory reason for firing him wasn’t the real reason. Tucker, the decisionmaker, testified that he believed Zamora wouldn’t return to work if he didn’t apologize. He had no legal obligation to apologize, so it wasn’t discriminatory to fire Zamora for refusing to work without the apology.

The court also noted that the evidence didn’t suggest Tucker was discriminating on the basis of national origin because he offered Zamora his job back after the paperwork issue was resolved. If the personnel director had an anti-Mexican bias, according to the court, he probably wouldn’t have done that.

State-by-state comparision of 50 Employment Laws in 50 States, including national origin discrimination

As an employer, what can you learn from this case? The first thing is that judges, like juries, can be unpredictable. An employer’s actions may look innocent to one judge but be potential evidence of discrimination to another. That’s a reason to stay out of court in the first place. Which brings us to the second lesson: Prevent lawsuits before they happen. If Tucker had been nicer to Zamora, he might not have sued the company at all. Train your supervisors to make good decisions and treat employees with the respect they deserve.