Mark A Ivener, A Law Corporation

Brazilian Worker Loses Claim of National Origin Discrimination, Retaliation

In Guimaraes v. SuperValu, Inc., the U.S. Court of Appeals for the Eighth Circuit affirmed the judgment of the district court dismissing with prejudice a worker’s lawsuit against her former employer, SuperValu, Inc., for national origin discrimination and retaliation.

The plaintiff, Katia Agiuiar Guimaraes, has dual Brazilian and Canadian citizenship. She speaks English with an accent and her native language is Portuguese, the court noted. Her position changed and her new supervisor, Lisa Delia Bautista Grubbs, from Mexico, began to identify performance problems. A performance plan and mediation efforts by SuperValu were unsuccessful and Ms. Guimaraes was fired and subsequently filed suit. Ms. Grubbs never referred to Ms. Guimaraes’ Brazilian origin or mocked her accent, but Ms. Guimaraes alleged national origin discrimination, stating among other things that Ms. Grubbs asked her to repeat herself and to repeat Ms. Grubbs’ instructions to Ms. Guimaraes. Ms. Guimaraes also alleged that she heard that Ms. Grubbs had told someone else that she intended to try and have Ms. Guimaraes fired and to prevent her from getting a green card.

Among other things, the court found that Ms. Guimaraes did not present sufficient evidence to find that SuperValu’s legitimate nondiscriminatory reason for her termination – her performance – was a pretext for retaliation in violation of the law. The court noted that Ms. Guimaraes had not shown that Ms. Grubbs was “targeting” her because of her national origin. Examining the evidence as a whole, the court noted that a reasonable jury could find that Ms. Grubbs targeted her for any of these reasons: because of a personality conflict, because Ms. Guimaraes critiqued Ms. Grubbs’ management style, because Ms. Grubbs honestly did not believe Ms. Guimaraes was competent, or even because Ms. Guimaraes was trying to get a green card. None of these reasons violates the law. The court noted, quoting earlier decisions, that the employment discrimination laws “have not vested in the federal courts the authority to sit as super-personnel departments reviewing the wisdom or fairness of the business judgments made by employers, except to the extent that those judgments involve intentional discrimination.”

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Mark A. Ivener, A Law Corporation, a nationally recognized law firm, has successfully assisted hundreds of clients in immigration matters.