AELE LAW LIBRARY OF CASE SUMMARIES:
Employment & Labor Law for Public Safety Agencies
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National Origin Discrimination
See also: Race and National Origin Discrimination
A Brazilian citizen who identifies himself as Latino, worked as a correctional sergeant for the Wisconsin Department of Corrections (DOC). His use of force on an inmate triggered an internal review process and led to his termination. The individual defendants, the warden, the human resources director, and a corrections unit supervisor played roles in that review process. The fired employee filed national origin and race discrimination claims against the DOC under Title VII, and against the individual defendants and the DOC under 42 U.S.C. 1983, alleging a violation of the Equal Protection Clause. A federal appeals court overturned the award of summary judgment to the DOC on the Title VII claim and to the warden on the plaintiff’s equal protection claim, but otherwise affirmed summary judgment for the defendants. A reasonable jury could conclude that the plaintiff and another correctional officer (who was white and a U.S. citizen) engaged in comparably serious conduct but that the plaintiff was discharged while the other officer was suspended for just one day. .A reasonable jury could also conclude that the warden’s evolving explanations for the discrepancy supported an inference of pretext. Qualified immunity did not shield the warden from liability. The Eleventh Amendment, however, barred the equal protection claim against the DOC as a state agency. Silva v. State of Wisconsin, Department of Corrections, #18-2561, 2019 U.S. App. Lexis 5210 (7th Cir.).
A lieutenant in the Massachusetts State police brought a lawsuit under state law claiming that he suffered discrimination when he was denied a transfer to a different troop station on the basis of his age, Asian race, or Chinese national origin. Others granted transfers to the unit he sought were younger than him. The trial court granted summary judgment in favor of the state police, ruling that he that did not meet his burden of showing that the denial of his request for a lateral transfer was an “adverse employment action.” The highest court in Massachusetts vacated that judgment, holding that, under certain circumstances, “where there are material differences between two positions in the opportunity to earn compensation, or in the terms, conditions, or privileges of employment,” the failure to grant a lateral transfer to a preferred position may constitute an adverse employment action. Because the plaintiff met his burden of showing a prima facie case of discrimination— that he “would have greater opportunities to earn overtime and obtain paid details in the troop to which he seeks transfer” --the case was remanded to decide the issue of whether the denial of this request for a lateral transfer was motivated by discriminatory animus. Yee v. Massachusetts State Police, #SJC-12485, 481 Mass. 290, 2019 Mass. Lexis 20, 2019 WL 347521.
An 11-year-old boy came to the U.S. with his parents from Mexico. Five years later, in 1995, he used a false Social Security number to gain employment. In 2007, he got a real Social Security number. Finally, in 2011, he became a U.S. citizen. After applying to become a California state correctional officer, he passed both written tests and physical examinations and gained a place on an eligibility list. During a required background investigation, he answered yes to the question “Have you ever had or used a social security number other than the one you used on this questionnaire?” Based on that information, he was informed that he was no longer eligible to become a correctional officer. After the State Personnel Board upheld that determination, he filed a federal lawsuit claiming national origin discrimination under federal and state law. The trial court dismissed the state law claims on Eleventh Amendment grounds, which effectively limited potential money recovery to back pay. The federal case ended with an order that he be reinstated to the correctional officer hiring process, $140,362 in back pay contingent on his completing the training academy, plus an award of $1,237,024.82 in prevailing party attorney fees and $166,541.87 in costs on a federal equal protection claim. Attempting to recover additional damages after the dismissal of his state law claims in federal court, the plaintiff filed suit in state court, which was stayed pending the end of the federal case. After he won his judgment in the federal lawsuit, the state court dismissed his state claims under California claim preclusion principles. An intermediate state appeals court reversed, reasoning that federal law, not California law, governs the preclusive effect of the federal judgment, and provides an exception to claim preclusion where only jurisdictional limitations in a prior suit blocked a request for complete relief. Guerrero v. California Department of Corrections and Rehabilitations, #A147507, 28 Cal. App. 5th 1091, 239 Cal. Rptr. 3d 726, 2018 Cal. App. Lexis 1010, 2018 WL 5816727.
The plaintiff presented no
real evidence that a fire department requested, required, or purchased his
genetic information, or discriminated against him on the basis of genetic
information in violation of the federal Genetic Information Nondiscrimination
Act (GINA), 42 U.S.C. 2000ff-1. The trial court did not erroneously conclude
that the employer's actions in placing him in administrative duty assignments
were motivated by his refusal to take a stress test, and not in unlawful
retaliation for his opposition to practices prohibited by GINA. The motivation
was ensuring compliance with the department's Wellness Program and furthering
its goals, and was also not motivated by national origin discrimination.
Summary judgment in favor of the employer was upheld. Ortiz v. City of San
Antonio Fire Dept. #15-50341 2015 U.S. App. Lexis 20014 (4th Cir.).
When a woman from Saudi
Arabia started to work at a county court, her clothing marked her as a Muslim.
When she was assigned to child care duties, she was the only employee in that
position who was an Arab or a Muslim. Her superior was an allegedly vocal
Christian, and the employee filed internal complaints about his behavior,
contending that he established a hostile working environment for her. Her
superior said he was tired of her complaints and she was transferred to the
court reporter's office, an assignment in which she wass allegedly treated
badly and subjected to retaliation because she had filed EEOC complaints. She
sued under Title VII and 42 U.S.C. Sec. 1983, asserting that her First and
Fourteenth Amendment rights had been violated. A federal appeals court found
that the plaintiff adequately stated a claim for a hostile work environment and
that her superiors were not entitled to qualified immunity for their alleged
actions of retaliation. The employee had engaged in protected conduct in
complaining about alleged religious and national origin harassment. Her
complaints about abusive conduct including screaming, prayer circles at work,
social shaming, implied criticism of non-Christians expressed at work, and
"uniquely bad treatment" of her were plausible. Huri v. Office of the
Chief Judge, Cook County, #12-2217, 2015 U.S. App. Lexis 18296 (7th Cir.).
A female former employee of French national origin at a
maximum security prison failed to show that the employer was liable for alleged
sexual harassment or discrimination against her on the basis of gender and
national origin. The employer apparently corrected all the behavior by
co-workers that the plaintiff reported, and she failed to show that any
similarly situated non-French non-female employees were subject to different
treatment than the treatment she complained of. Claims of retaliation were also
rejected. Chaib v. Indiana, #13-1680, 2014 U.S. App. Lexis 3417 (7th Cir.).
A part-time police officer, who was born in
Jordan, sued the city that employs him, claiming that he suffered national
origin discrimination when he was passed over for promotion to full-time
positions that became available. While he claimed that a police captain made
derogatory statements about him, he failed to show that the captain was a
decision-maker with input into the promotion decision. The police chief
indicated that he made hiring decisions himself, and there was no evidence of
discriminatory animus on the part of the chief. There was also evidence that
other candidates were hired for the full time positions because they were
better qualified, had more experience, there had been a citizen complaint
against the plaintiff, and there was a concern that the plaintiff might be
unable to work rotating shifts because of his ownership of gas stations. There
was no indication that these stated reasons were a pretext for discrimination.
Othman v. City of Country Club Hills, #11-1142, 2012 U.S. App. Lexis 4175
(8th Cir.).
A police recruit dropped from the academy after
failing a firearms test insisted it was because he was Polish. He father, who
was a deputy sheriff, attempted to intervene on his behalf by contacting his
son's supervisor. After a plea for reconsideration was rejected, an
unidentified man made phone calls to the school the supervisor's children
attended making "disturbing" statements and those calls apparently
were made from the building where the father worked. A disciplinary action is
filed against the father, and he opted for early retirement before his hearing
is held. He and his son both asserted federal civil rights claims, but those
claims are rejected. They then both sought to file employment discrimination
lawsuits under Title VII, claiming that their terminations were based on their
Polish national origins. Their Title VII lawsuit was barred by the earlier
adverse decisions against them in their federal civil rights lawsuits, which
were also based on their terminations. Palka v. City of
Chicago, #09-2042, 2011 U.S. App. Lexis 21461; 94 Empl. Prac. Dec.
(CCH) P44,303 (7th Cir.).
Jury finds for the FBI in a discrimination
and retaliation suit brought by an Egyptian born former agent. Judge refuses the
plaintiff's request for a new trial because "the jury's verdict was not
against the weight of the evidence." Youssef v. Fed. Bur. of
Investigation, #03-1551, 2011 U.S. Dist. Lexis 9832 (D.D.C. 2011); prior ruling
at 541 F. Supp. 2d 121 (D.D.C. 2008).
In a national origin failure to promote case, the
Second Circuit declares that "Experience, however, is not a substitute for
performance, and defendants had every right to place greater emphasis on the
performance evaluations of the candidates for promotion." Performance
ratings trump seniority. Estate of Paulette Hamilton v. City of N.Y., #9-4318,
2010 U.S. App. Lexis 24666 (2nd Cir.).
Fifth Circuit rejects a national origin
discrimination suit filed by a furloughed city employee. The plaintiff failed
to adduce any evidence that he applied for positions for which he was qualified
and for which he was not hired. Okpala v. City of Houston, #10-20175, 2010 U.S.
App. Lexis 20446 (Unpub. 5th Cir.).
Ninth Circuit allows an EEOC action for
injunctive relief to proceed against a government contractor, but dismisses the
damages claims. The Navajo Nation had insisted that contractual firms operating
on tribal lands give employment preference to Navajos. EEOC v. Peabody Western,
#06-17261, 2010 U.S. App. Lexis 12899 (9th Cir.).
Federal court rejects the claims brought by a Puerto
Rican who claimed that her promotion to captain was delayed for discriminatory
reasons. Many other candidates were ahead of her, due to their higher scores on
the civil service exam and she failed to identify any specific training
opportunities that she was denied. Santiago v. City of N.Y., #05-CV-3668, 2009
U.S. Dist. Lexis 30371 (E.D.N.Y.).
Federal court rejects a
national origin discrimination suit brought by a Treasury Dept. worker who was
subjected to an intensive security investigation. Management believed the
employee was traveling to Afghanistan because his mother was ill and later
discovered that the employee's mother was already deceased. Asghar v. Paulson,
#06-0400, 2008 U.S. Dist. Lexis 73279 (D.D.C.).
In a national origin discrimination action, the
Seventh Circuit concludes that the recording of 24 unauthorized absences in a
personnel record, along with an admonition that disciplinary action would ensue
if unexcused absences continue, is not an adverse employment action. "We
discern no reason to treat the UAs in this case differently than we have
treated negative performance evaluations ..." Delarma v. Illinois Dept.
Human Services, #07-1156, 2008 U.S. App. Lexis 18756 (7th Cir.).
"When viewed in the context of 15 years of
employment, two allegedly offensive statements made by the supervisor did not
constitute extreme harassment that changed the terms and conditions of the
employee's employment." Fuentes v. Bor. of Watchung, N.J., #07-2812, 2008
U.S. App. Lexis 15882 (3rd Cir.).
Hispanic probation officer who was terminated for
alleged misconduct failed to establish that he was similarly situated to
non-Hispanic employees that were treated more favorably. Salas v. Wisconsin
Dept. of Corrections, #06-2483, 493 F.3d 913, 2007 U.S. App. Lexis 16986, 101
FEP Cases (BNA) 11 (7th Cir).
Seventh Circuit sustains the termination of a
corrections officer for bringing contraband into a prison. There was no
evidence that the failure to offer him a Last Chance Agreement was influenced
by national origin discrimination. "An independent investigator and
independent arbitrator separately reached the conclusion that [he] had engaged
in the prohibited conduct of trading and trafficking" and there was no
evidence they "bore any discriminatory animus..." Jennings v. Ill.
Dept. of Corrections, #06-1637, 2007 U.S. App. Lexis 18325, 101 FEP Cases (BNA)
249 (7th Cir.).
In a private sector case, a federal court rejects
a claim that the appellant was overly monitored, micromanaged and then fired
due to his race, color, and Jamaican origin. The employer advanced adequate
reasons for his dismissal. Holt v. Roadway Sys., #2007 U.S. Dist. Lexis 61037
(W.D.N.Y.).
Seventh Circuit rejects a national origin
discrimination suit filed by an Hispanic corrections officer who was fired for
smuggling contraband cigars into a prison. Although there was evidence that
non-Hispanic employees were treated less harshly, there was no causal
connection between discriminatory conduct by his superior and his termination.
Jennings v. Illinois Dept. of Corrections, #06-1637, 101 FEP Cases (BNA) 249,
2007 U.S. App. Lexis 18325 (7th Cir.).
Los Angeles jury awards $10.4 million to four South
Gate police officers who alleged that they were harassed by coworkers because
of their support for Latino city officials. The jury voted 10-2 to award
approximately $1.4 million in economic damages and $9 million in non-economic
damages; individual verdicts ranged from $1.5 to over $4 million Hernandez v.
City of South Gate, #BC312104 (L.A. Super .2007); verdict rptd. at 45 (2208)
G.E.R.R. (BNA) 636.
A foreign-born security guard cannot claim wage
discrimination because other employees with less experience were paid more,
where the rate of pay was governed by prevailing wage rates at each work site
under the union contract. Bhaduri v. Summit Security Services, #05 Civ 7024,
2007 U.S. Dist. Lexis 2985, 99 FEP Cases (BNA) 1343 (S.D.N.Y. 2007).
Tenth Circuit finds that a male Hispanic city
employee failed to prove that the promotion of a white female was gender or
national origin discrimination, due to her superior qualifications. Vigil v.
City of Albuquerque, #05-2301, 2006 U.S. App. Lexis 29458 (Unpub 10th Cir.
2006). {N/R}
Summary judgment for the employer is granted in a
national origin discrimination lawsuit. A supervisor and the plaintiff, an
Italian-American, were not similarly situated. Covello v. City of Chicago,
#04C2212, 2006 U.S. Dist. Lexis 68985 (N.D. Ill.). {N/R}
Federal appeals court rejects a national origin
lawsuit brought by a former police officer of Polish descent. Although two
superiors made derogatory remarks these acts were unrelated to the decision to
fire him. The decision to terminate the officer was based on performance
records and citizen complaints. Rozskowiak v. Vil. of Arlington Heights,
#04-2043, 415 F.3d 608; 2005 U.S. App. Lexis 13567; 96 FEP Cases (BNA) 90 (7th
Cir. 2005). {N/R}
Appeals court affirms the termination of a
security officer that refused to remove a confederate flag from his truck and
lunchbox. He was not fired because he was a "Southerner" -- he was
terminated for insubordination. Storey v. Burns Intl. Security Serv., #03-2246,
390 F.3d 760, 2004 U.S. Dist. Lexis 25262 (3rd Cir. 2004). [2005 FP Mar]
Eighth Circuit rejects the appeal of a
firefighter who claimed that he was suspended, denied retraining, and unfairly
disciplined because of his Hispanic background. Although the plaintiff
presented coworker testimony that the fire chief made insensitive remarks about
African American and women employees, he presented no evidence that or others
ever uttered a single negative remark about the plaintiff's Hispanic
background. Griffith v. City of Des Moines, #03-3266, 387 F.3d 733, 94 FEP
Cases (BNA) 993, 2004 U.S. App. Lexis 21438 (8t {N/R}
Police officer who was fired for engaging in a
scheme to obtain illegal access to satellite television, failed to prove
discriminatory action. Although other officers were involved in the scheme, his
conduct was the most severe and his allegations of disparate discipline did not
establish a pretextual termination because he is Hispanic. Salguero v. City of
Clovis, #03-2120 2004 U.S. App. Lexis 8931 (10th Cir. 2004). {N/R}
Federal appeals court rejects a Hispanic police
officer's parallel discrimination and retaliation suit as res adjudicata; he
lost a state court challenge to a decision to grant him only non duty-related
disability benefits after a heart attack. The officer had testified against
management in a prior employment discrimination case. Garcia v. Village of
Mount Prospect, #02-2869, 2004 U.S. App. Lexis 3226, 93 FEP Cases (BNA) 446
(7th Cir. 2004). {N/R}
NYPD settles a bias action and establishes a $20
million compensation fund to satisfy the discrimination claims of Latino and
African American officers. The suit alleged that the NYPD was hostile to
Hispanic and black officers by allowing graffiti and slurs, that began in the academy
and continued into precinct houses. Latino Officers Assn. v. City of New York,
#99-9568; prior decis. at 2003 U.S. Dist. Lexis 17778 and 2003 U.S. Dist. Lexis
11794 (S.D.N.Y. 2004). {N/R}
Court dismisses a discrimination complaint filed
by a Russian immigrant who was fired from his job as a criminal investigator.
His supervisor may be unpleasant, unfair, and arbitrary, but that does not
prove discrimination. Neishlos v. New York City, #00Civ.914, 2003 U.S. Dist.
Lexis 19554 (S.D.N.Y. 2003). [2003 FP Mar]
Appeals court rejects claims of retaliation,
national origin and age discrimination. Postal service properly "concluded
that reinstating an employee who had been terminated because of an arrest for
selling drugs inside a post office facility was not in the best interest of
USPS even though the criminal charges were subsequently dismissed following a
mistrial." Sarullo v. U.S. Postal Service, #01-4203, 2003 U.S. App. Lexis
25847 (3rd Cir. 2003). [2003 FP Mar]
Jury awards $3,591,000 to an Asian-American LAPD
officer who allegedly suffered harassment and retaliation from his supervisors.
The incidents, over a seven-year period, ranged from a failure to respond to
his backup calls to putting women's underwear in his work mailbox. Nagatoshi v.
City of Los Angeles, Superior Ct. #BC260299, 41 (2004) G.E.R.R. (BNA) 383 (jury
verdict 2003). {N/R}
An allegedly discriminatory policy of classifying
Hispanic employees as temporary employees for longer periods of time than white
employees, which deprived them of longevity pay and retirement compensatio,n
was not a continuing violation for the purpose of avoiding the statutes of
limitations. City of Hialeah v. Rojas, 2002 U.S. App. Lexis 23252 (11th Cir.
2002). {N/R}
Federal court dismisses a Hispanic probation officer's
Title VII discrimination claim; a lateral transfer is not an "adverse
action" and other conduct was not severe or pervasive enough to create a
hostile work environment. Vasquez v. Co. of Los Ang., #00-56803, 2002 U.S. App.
Lexis 20664, 89 FEP Cases (BNA) 1705 (9th Cir. 2002). {N/R}
Federal appeals court upholds the termination of
a Polish officer who was unable to prove others have been treated differently
based on similar misconduct. Glebocki v. City of Chicago, #01-1243, 2002 U.S.
App. Lexis 4816, 32 Fed. Appx. 149 (7th Cir. 2002). [2002 FP Sep]
U.S. Dept. of Justice issues Guidance to avoid
national origin discrimination, and warns that "English Only" laws
offer no protection from liability. Guidance to Federal Financial Assistance
Recipients Regarding Title VI: Prohibition Against National Origin
Discrimination Affecting Limited English Proficient Persons, 66 (10) Federal
Register 3833-3848 (Jan. 2001). [2002 FP Apr]
The U.S. Dept. of Justice brochure, "Federal
Protections Against National Origin Discrimination," is now available in
11 foreign languages: Arabic, Cambodian, Chinese, French, Haitian Creole,
Korean, Laotian, Spanish, Russian, Tagalog (Philippines) and Vietnamese. [N/R]
California appeals court rejects a discrimination
claim where the employee unsuccessfully appealed his termination at an
administrative hearing. Castillo v. City of Los Angeles, #B143598, 2001 Cal.
App. Lexis 747, 111 Cal.Rptr.2d 870, 01 C.D.O.S. 8342, 2001 DAR 10237. [2001 FP
154]
Seventh Circuit upholds the promotion of an Asian
agent which was challenged by an Hispanic agent. The selected agent had more
field experience. Guerrero v. Ashcroft, #00-3306, 253 F.3d 309, 86 FEP Cases
(BNA) 1129, 2001 U.S. App. Lexis 12871 (7th Cir.). [2001 FP 121]
President Clinton signs an Executive Order to
improve the recruitment of Hispanics into the federal work force and to offer
improved career development opportunities for Hispanics. Executive Order #13171
(10/1/2000). Text: www.opm.gov/eo/13171.htm {N/R}
President Clinton issues Executive Order 13166
entitled, “Improving Access to Services for Persons with Limited English
Proficiency.” to assist them in accessing federal services. Attorney General's
Civil Rights Division issues a Policy Guidance document, “National origin
discrimination against persons with Limited English Proficiency (LEP
Guidance).” 65 (159) Fed. Reg. 50121-50125 (Aug. 16, 2000). [2000 FP 156]
$1.2 million verdict awarded to a Hispanic former
officer, for discriminatory treatment and discharge, is settled for $400,000.
Two other similar suits against the same city are settled for $100,000 each
plus $300,000 in legal fees. Martinez v. Mt. Prospect, 92 F.Supp.2d 780, 2000
U.S. Dist. Lexis 7456 (N.D. Ill.); settlement at 38 (1855) G.E.R.R. (BNA) 395.
[2000 FP 42-3 & 73-4]
Jury awards a Syrian born city worker $1,000,000
for national origin discrimination. The Muslim plaintiff was repeatedly
insulted, barred from promotion and was forced into early retirement by health
problems induced by discriminatory treatment. Rez v. City of Los Angeles,
(Rptd. by the L.A. Times 7/1/2000). {N/R}
Hispanic police officer wins $1.9 million against
the City of South San Francisco, Calif. Molieri v. City of So. San Fran., 37
(1826) G.E.R.R. (BNA) 1051, San Mateo Co. Super. Ct. #399497 (7/28/1999). [1999
FP 134-5]
California was exercising its police powers, not
its proprietary powers, when it required school teachers to be certificated;
licensing examination was not subject to Title VII and the examination was
mandated by legislature, not an agency responsible for overseeing employees.
Assn. Mex. Am. Educators v. Calif., 183 F.3d 1055, 1999 U.S. App. Lexis 15546,
80 FEP Cases (BNA) 500 (9th Cir. 1999). {N/R}
Minnesota appellate court upholds a suit by an
unsuccessful Hispanic firefighter who claimed the promotional exam was biased.
Damages reduced from $705,000 to $405,000. Kohn v. Mnpls. Fire Dept.,
#C5-97-2075, 1998 Minn. App. Lexis 957. {N/R}
Latino agents file complaint against the INS.
claiming they are underrepresented in senior management and supervisory
positions. Quintanar v. Reno, #96-7066 JGD, 36 G.E.R.R. (BNA) No.1749
(C.D.Cal.). [1998 FP 76]
Chicano sergeant who was kept as an Acting
Lieutenant until the promotional list expired, accepts promotion and $130,000
to drop ethnic discrimination suit. Doe v. City (Parties Confid.), 109 (77)
L.A.D.J. V&S 10, Riverside Co. (Cal.Super. 1996). [1996 FP 122-3]
American Indian recovers $23,000 because sheriff
refused to promote him because of his native American origin. Wilkinson v. Hill
Co. Sheriff's Office, #9001004083, 1995 FEP Summary (BNA) 29 (Mont.HRC 1994).
[1995 FP 89-90]
Prison employee receives $450,000 plus legal
fees, in her suit for a denied promotion. She alleged her rejection was in
retaliation for a 1983 bias complaint filed with the EEOC. Clark v. State of
California, #S-89-1688 DFL-GGH, 31 (1506) G.E.R.R. (BNA) 361 (E.D.Cal. 3-2-93).
[1993 FP 89]
See also: Race and National Origin Discrimination and
EEOC regulations at www.eeoc.gov/regs/
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