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9 OCAHO no. 1111

In the instant matter, it is possible to adjudicate Respondent’s § 1324b(a)(3)(B)(i) argument as a motion to dismiss for lack of subject-matter jurisdiction without resorting to evidence outside of the Complaint. Complainant asserts in her Complaint that she is a lawful permanent resident who first became authorized to work in the United States on April 28, 1977. Complaint at 2. She further states that she started the process for naturalization in November of 2003, but she has not followed through with this process. Id. Complainant confirmed during the prehearing conference that she became a lawful permanent resident in 1977 and started the naturalization process in 2003. PHC Tr. 14-15. After becoming a lawful permanent resident in 1977, Complainant would have first been eligible to apply for naturalization sometime in 1982, but she did not begin the naturalization process until November of 2003. Thus, Complainant waited over two decades from the date she first became

eligible to apply month window

for naturalization before starting the necessary for her to qualify as a

naturalization process, well outside the six-

“protected

individual.”

See

8

U.S.C.

§

1324b(a)(3)(B)(i).

Therefore,

this

Court

lacks

jurisdiction

over

the subject matter of

Complainant’s

claim of citizenship status discrimination. supra at 733.

See Fed. R. Civ. Proc. 12(h)(3); Thornhill Publishing Co.,

B.

Security Clearance and 8 U.S.C. § 1324b(a)(2)(C)

Respondent also claims that Complainant’s claims of national origin and citizenship status discrimination must be dismissed because federal law precludes her from being employed as a “Warehouse Specialist.” In particular, Respondent avers that Respondent’s contract with the United States Department of Defense required Complainant to obtain a secret security clearance, and only United States citizens are eligible for such security clearance. Motion to Dismiss at 8-10. This policy is set forth at page 2-2-2 of the NISPOM, attached as RX-M to Respondent’s brief. Although Respondent styled this argument as a motion to dismiss for lack of subject-matter jurisdiction, I analyze the argument under summary decision standards because Respondent relies on documents outside of the Complaint.

In pertinent part, § 1324b(a)(2)(C) provides that the anti-discrimination provisions of § 1324b(a)(1) do not apply where citizenship status discrimination is required to comply with law, regulation, or executive order, or is required by Federal contract. OCAHO judges have applied this provision in dismissing complaints because federal law required United States citizenship. See, e.g., Kasathsko v. Internal Revenue Service, 6 OCAHO 176, 185, 1996 WL 281945, *7 (holding that the anti-discrimination provisions at § 1324b(a)(1) did not apply pursuant to § 1324b(a)(2)(C), because the complainant did not “owe permanent allegiance to the United States,” as required by the Treasury, Postal Service and General Government Appropriations Act of 1995 (Public Law 103- 329)). Similarly, OCAHO precedent supports the entry of summary decision against a complainant under § 1324b(a)(2)(C) where the employer’s allegedlydiscriminatoryconduct was authorized under state law. See, e.g., Anderson v. Newark Public Schools, 8 OCAHO 361, 371-373, 1999 WL

5

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