Odongo v. Office of the Chief Administrative Hearing Officer

Case: 15-60044 Document: 00513133953 Page: 1 Date Filed: 07/29/2015

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 15-60044 United States Court of Appeals
Summary Calendar Fifth Circuit

FILED
July 29, 2015
RAEL A. ODONGO, Lyle W. Cayce
Clerk
Petitioner

v.

OFFICE OF THE CHIEF ADMINISTRATIVE HEARING OFFICER;
CROSSMARK, INCORPORATED,

Respondents

Petition for Review of an Order
of the United States Department of Justice
Executive Office of Immigration Review
Office of the Chief Administrative Hearing Officer
OCAHO No. 13B00085

Before PRADO, OWEN, and GRAVES, Circuit Judges.
PER CURIAM:*
Petitioner Rael A. Odongo petitions for review of an order of the
administrative law judge (“ALJ”) dismissing her complaint alleging retaliation
and document abuse in violation of the Immigration Reform and Control Act

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 15-60044
of 1986 (“IRCA”), 8 U.S.C. § 1324b. Finding no error, we deny Odongo’s
petition.
BACKGROUND
Odongo, a non-citizen authorized to work in the United States, was hired
on June 6, 2011 by Appellee Crossmark, Incorporated as a merchandising
services project administrator. Odongo’s most recent Employment
Authorization Document (“EAD”) was set to expire on March 8, 2013.
Beginning ninety days in advance of that date, Odongo received a series of
notices from Crossmark that her work authorization was set to expire. These
notices stated, “In order for us to continue to employ you, we must re-verify
your employment eligibility.” On March 7, 2013, having still not received
Odongo’s new work permit, Odongo’s direct supervisor and regional supervisor
met with her. At the meeting, Odongo was told that unless her card was
renewed, she would be terminated at the end of the next day. At the end of the
day on March 8th, Odongo cleaned out her desk, turned in her laptop and
employee badge, and took her personal belongings with her.
In the days following Odongo’s termination, her direct supervisor
requested her assistance with several work related matters. Odongo spent
approximately four hours on these tasks. On March 12, 2013, in an effort to
regain her job, Odongo notified her regional supervisor that her new EAD had
been approved and was in production. On March 14, 2013, Odongo sent a text
message to her direct supervisor notifying her that Odongo was in
communications with an immigration attorney and that Odongo was planning
to report Crossmark to the Department of Justice (“DOJ”) regarding certain
immigration law violations and document abuses. Later that day, Odongo
discovered that her project administrator position had been filled. In response,
Odongo filed a charge with the Office of Special Counsel for Immigration-
Related Unfair Employment Practices and a subsequent complaint with the
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No. 15-60044
DOJ Executive Office for Immigration Review, Office of the Chief
Administrative Hearing Officer (“OCAHO”). The OCAHO ALJ granted
Crossmark’s motion for summary decision. Odongo now seeks our review of
the ALJ’s decision.
DISCUSSION
We uphold agency findings that are supported by substantial evidence.
Wije v. Barton Springs, 81 F.3d 155, at *1 (5th Cir. 1996) (unpublished). We
review conclusions of law de novo. Id. Odongo contends that her expired EAD
was pretext for her termination and that she was instead fired for engaging in
protected conduct under 8 U.S.C. § 1324b(a)(5). The ALJ rejected Odongo’s
retaliation claim on several bases including that Odongo had not demonstrated
that her termination was in response to her protected conduct. The ALJ
further rejected Odongo’s document abuse claim because Odongo had not
shown that Crossmark failed to accept valid documentation of her work
authorization prior to her termination. We affirm these findings.
Substantial evidence supports the conclusion, fatal to Odongo’s
retaliation claim, that the decision to terminate Odongo on March 8th was
made well in advance of Odongo’s meeting with her supervisors on March 7th. 1
Odongo’s supervisors told her on March 7th that in the absence of work
authorization renewal by the end of the day on March 8th, she would be
terminated. Moreover, Odongo received numerous notifications that she would
not continue to be employed by Crossmark if she did not re-verify her
employment eligibility. Therefore, any statements Odongo subsequently made
to her supervisors regarding her intentions to report their employment
practices had no causal effect on Odongo’s termination.

1Odongo concedes in her brief that a finding that her termination occurred prior to
March 14, 2013 forecloses her retaliation claim.
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No. 15-60044
Additionally, substantial evidence supports the finding that Odongo
failed to provide valid documentation to Crossmark, a prerequisite to a
document abuse claim. Odongo was terminated on March 8th, yet her EAD
was not renewed until March 12, 2013. Thus, Odongo did not possess valid
documentation at the time of her termination.
For these reasons, we DENY the petition for review.

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