9 OCAHO no. 1111
A motion for summary decision may be granted if there is no genuine issue of material fact and the moving party is entitled to decision as a matter of law. Aguirre v. KDI American Products, Inc., 6 OCAHO 632, 640, 1996 WL 637474, *7 (citing Curuta v. U.S. Water Conservation Lab., 19 F.3d 26 (9th Cir.1994); New Burnham Prairie Homes, Inc. v. Village of Burnham, 910 F.2d 1474, 1477 (7th Cir.1990)). In determining whether a fact is material, any uncertainty must be considered in the light most favorable to the non-moving party. Id. (citing Matsushita Elec. Indus. v. Zenith Radio, 475 U.S. 574, 587 (1986)). The burden of proving that there is no genuine issue of material fact rests on the moving party, but once the movant meets its initial burden the non-moving party must show that there is a genuine issue of material fact for trial. Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). An issue of material fact is genuine only if it has a real basis in the record and is material only if it might affect the outcome of the case. Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
Protected Individual Under 8 U.S.C. § 1324b(a)(3) Respondent argues that Complainant’s claim of discrimination based upon her status as a
Jamaican citizen must be dismissed because she does not fall within the class of immigrants protected against discrimination under § 1324b. Specifically, Respondent asserts that Complainant does not qualify as a “protected individual” under 8 U.S.C. § 1324b(a)(3), because she failed to apply for naturalization within six months of the date she first became eligible to do so. Motion to Dismiss at 6-8.
Section 1324b(a)(1) prohibits, as an unfair immigration-related employment practice, employer discrimination in hiring, firing, recruitment, or referral for a fee, “against any individual,” other than an unauthorized alien, because of such individual’s national origin, or in the case of a “protected individual,” as defined at § 1324b(a)(3), because of such individual’s citizenship status. Thus, to maintain a citizenship status discrimination claim, an individual must be a “protected individual.” See, e.g., Santos, supra, at 4-5, *4 (citing Hsieh v. PMC Sierra, Inc., 9 OCAHO Ref. No. 1100, 18-19, 2003 WL 22519502, *16-17). “Protected individuals” include United States citizens and nationals, lawful permanent residents, lawful temporary residents under 8 U.S.C. §§ 1160(a) or 1255a(a)(1), and refugees and asylees. 8 U.S.C. § 1324b(a)(3)(A)-(B); see also Ondina- Mendez v. Sugar Creek Packing Co., 9 OCAHO Ref. No. 1085, 12, 2002 WL 31663164, *10. However, a lawful permanent resident loses “protected individual” status if that individual fails to apply for naturalization within six months of the date he or she first becomes eligible to apply. 8 U.S.C. § 1324b(a)(3)(B)(i). Generally, an individual becomes eligible to apply for naturalization after having been a lawful permanent resident for five years. 8 U.S.C. § 1427(a). Also, an individual who is not a “protected individual” at the time that an alleged unfair employment practice occurred cannot gain protection retroactively by obtaining legitimate status before filing a lawsuit. See Garcia-Contreras v. Cascade Fruit Company, 9 OCAHO Ref. No. 1090, 22, 2003 WL 634576, *16.