May 2012

By: James B. Sherman, Esq.

In Guimaraes v. Super Value, Inc., ___ F.3d ___ (8 ^th Cir. 2012), the plaintiff – a native of Brazil – worked under an employer sponsored non-immigrant temporary visa (H-1B). The H-1B was a three year visa that was extended while the plaintiff pursued a permanent “green card” status to remain the United States. After the company reorganized the plaintiff started having personality conflicts with her new supervisor. Eventually she was put on a Performance Action Plan (PAP) and later, when she was advised that insufficient progress had been made under the terms of the PAP, she went out on FMLA “stress” leave. While plaintiff was on FMLA leave the company determined to make a reduction in force (RIF) and selected the plaintiff for the RIF, among others, based in part on her disciplinary status as well as seniority. As a result, Super Value allowed Guimaraes to complete her FMLA leave but then terminated her upon its conclusion.

Guimaraes sued, alleging national origin discrimination and retaliation under Title VII (federal law) and the Minnesota Human Rights Act. Plaintiff’s case was largely based on a co-worker witness who testified that Guimaraes’ supervisor wanted her fired to stop her green card process from proceeding; this was argued to show national origin discrimination. The court, however, held that immigration status is not national origin; therefore, any comments about immigration status could not be used as evidence of national origin bias.

Other tidbits of this case:

• To counter Super Value’s position that Guimaraes’ performance warranted selection for the RIF, plaintiff relied both on past performance reviews of “consistently meets expectations” AND the company’s certification in sponsoring her H-1B visa, where it represented to the government (as it must) that Giumaraes was more qualified than all U.S. citizens that applied for her job when her visa was renewed.
• The above was not enough to overcome evidence of the conflict between Guimaraes and her supervisor, which could not be attributed to national origin. In other words, conflicts with one’s supervisor may be enough for discipline.
• The case did not involve an FMLA claim (at least on appeal), perhaps because the employer allowed the employee to finish out her unpaid leave before terminating her as part of the RIF.