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9 OCAHO no. 1111

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW OFFICE OF THE CHIEF ADMINISTRATIVE HEARING OFFICER

_________________________________________ )

TANYA LOUISE SE Complainant,

v.

BAE SYSTEMS, Respondent

AVER

) ) ) ) ) ) )

8 U.S.C. § 1324b Proceeding

OCAHO Case No. 04B00059

Judge Robert L. Barton, Jr.

_________________________________________)

ORDER GRANTING RESPONDENT’S MOTION TO DISMISS (December 1, 2004)

I.

SUMMARY

On August 31, 2004, Tanya Louise Seaver (Complainant or Seaver) filed a Complaint with the Office of the Chief Administrative Hearing Officer (OCAHO), alleging that BAE Systems (Respondent or BAE Systems) had committed immigration-related unfair employment practices in failing to hire her as a “Warehouse Specialist.” On October 21, 2004, Respondent filed a Motion to Dismiss, supported by a Memorandum. Respondent also attached to its Motion to Dismiss Exhibits RX-A through RX-M, and a Declaration of BAE Systems employee Bert Uehara, which was not labeled as an exhibit. Complainant, who is proceeding pro se, did not file a response to this Motion to Dismiss or move for an extension of time to do so. Respondent filed an Answer to the Complaint on October 25, 2004. On November 9, 2004, a telephonic prehearing conference was held and Respondent’s Motion to Dismiss was discussed. Both Respondent’s counsel and Complainant attended the conference, a court reporter was present, and a transcript of the conference was prepared (cited as PHC Tr.).

I conclude that Complainant’s claim of citizenship status discrimination must be DISMISSED because Complainant was not a “protected individual” under 8 U.S.C. § 1324b(a)(1)(B) at the time the alleged discriminatory acts occurred. I further conclude that Complainant’s claims of national origin and citizenship status discrimination must be DISMISSED under 8 U.S.C. § 1324b(d)(2), because Complainant, a non-United States citizen, was ineligible for the position of “Warehouse Specialist” under the National Industrial Security Program Operating Manual (NISPOM) and a contract entered into between Respondent and the United States Department of Defense. Lastly, I determine that Complainant’s Complaint must be DISMISSED

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