Melindez vs. Quantum and SAP

Date: Tuesday, August 23, 2005 5:43 PM

JOB DESTRUCTION NEWSLETTER

by Rob Sanchez
August 23, 2005 No. 1320

Until now, the lawsuits or legal complaints that I have seen filed on the behalf of U.S. workers against discrimination caused by H-1B have been filed by complainants that represented themselves. That put them at a disadvantage because the employers hired expensive attorneys for their defense. In a court of law the odds are not very good when an individual goes up against teams of corporate lawyers. The problems for complainants are exacerbated by the fact that the laws on H-1B favor employers. Consequently there has never been a single case that has been won against employers who either shunned American applicants for jobs or replaced them with H-1Bs.

Now an American worker is fighting back, and he hired legal help to improve his odds of winning. William Melindez, a U.S. born citizen that lives in Guaynabo, Puerto Rico, hired professional lawyers to pursue two lawsuits. Documents for both lawsuits are posted online, with brief summaries below.

One of the barriers that workers face is that lawyers are expensive. Before you go hunting for lawyers be warned that Melindez had to pay $10,000 for litigation expenses up-front, and the lawyers are doing the rest of the work on a contingency fee basis of 33%. His lawyer got involved in the case and is picking up many of the expenses just to push this through.

Melindez contacted several different people about what he was doing. I immediately saw the value of his efforts once I took the time to read the legal documents.

I precede a summary of the two lawsuits with a comment from William Melindez. The documents are appearing to the public for the first time because I decided to post them online at ZaZona.com. Feel free to distribute and use them as you wish. I will continue to give updates on the Melindez case as events unfold.

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-- commentary by William Melindez

Quantum Business Engineering and Evertec, among others - not just hire illegal aliens who happen to be here, but they actually IMPORT them into the country, paying their airfare, their temporary lodging and transportation while in the country, and then send them back once their software implementation projects are completed. MOST OF ALL THESE PROJECTS ARE DONE FOR GOVERNMENTAL AGENCIES AND FINANCED WITH PUBLIC FUNDS.

These are not the jobs our President says nobody wants to do, these are professional white-collar jobs which used to pay in the six figure range, and now go for a fraction of that when performed by the illegal aliens who come from economically depressed countries.

The express strategy of these consulting firms are that for these workers they do not need to pay Social Security, or any other employment tax or mandatory insurance, but also that these workers do not seek protection by federal or local employment laws, for fear of deportation or removal form the country.

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http://www.zazona.com/ShameH1B/Library/Legal/MELENDEZvQUANTUM.pdf

WILLIAM E. MELENDEZ, Plaintiff, v. QUANTUM BUSINESS ENGINEERING,

This the first law suit that Melindez filed. The case had a trial set for August 2nd. Both events where "postponed" at defendant's request without further explanation.

This is a discrimination case in which Melindez claims that his employer, Quantum Business Engineering Inc., discharged him because of his age and national origin. In addition to discrimination Melindez claims that he was fired because he was going to blow the whistle to the Commonwealth of Puerto Rico regarding the utilization of illegal foreign nationals to work in Puerto Rico in connection with services provided by the employers.

According to Melindez, Quantum Engineering imported and hired employees that were undocumented foreign workers, mainly from Venezuela. Quantum used tourist visas to bring these workers into Puerto Rico and then in some cases obtained fraudulent H-1B work authorization visas.

Quantum's defense strategy is to claim that Melindez was fired because his work performance wasn't acceptable and that he was absent from work without authorization for 8 days. They claim that his lawsuit is a frivolous nuisance lawsuit that has nothing to do with age, race, or citizenship discrimination.

Quantum totally denies that they hired while knowingly violating the immigration laws of the United States by hiring illegal aliens and using them to replace U.S. citizens.

***** Now here is where it gets interesting *****

Quantum claims that even if they did hire illegal aliens it's irrelevant to the case! At issue is whether American citizens are a protected class under Title VII. I discussed this issue in detail in regards to the Sona Shah lawsuit in the newsletter: "Civil Lawsuits and Pascrell's Bill", December 21, 2004. No. 1164. That newsletter is very useful if you want more in-depth knowledge about how the courts view this type of discrimination.

This is a critically important passage from the lawsuit for all to read and understand. This comment was written by Quantum's defense lawyer:

"national origin" in Title VII. The Supreme Court held
that Title VII's prohibition against "national-origin"
discrimination protects against discrimination in the
workplace on the basis of "where a person was born, or,
more broadly, the country from which his or her ancestors
came," and such protection did not go so far as to prevent
discrimination in employment solely on the basis of an
employee's citizenship.

It may seem to the casual reader that there is no difference between discrimination based on where a person is born, and national origin, but in the courts this has been the one of the largest obstacles in the way of American citizens who want to charge that they were discriminated against in favor of an H-1B. Specifically there is no law which addresses the discrimination suffered by either American citizens or nonimmigrant (NIV) guest workers that is caused by the abuse H-1B or L1 visas. In simple terms, until a lawsuit like the Melindez complaint is won, American citizens have NO PROTECTION IF THEY ARE DISCRIMINTED AGAINST ON THE BASIS OF NATIONAL ORIGIN.

If Melindez won on the basis of discrimination based on national origin, he could open up opportunity for a broad range of Americans that have suffered similar discrimination in the workplace. This lawsuit could be an important breakthrough for American workers by setting a precedent, while historians might write about how his lawsuit was the beginning of the end of the H-1B visa.

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http://www.zazona.com/ShameH1B/Library/Legal/MelendezvSAP.pdf

WILLIAM E. MELINDEZ, v. SAP ANDINA Y DEL CARIBE

This lawsuit was filed recently in 2005.

This is a discrimination case in which Melindez claims that Sap Andina Y Del failed to hire Melendez because of his national origin and age. Melindez alleges that SAP ANDINA only uses for its SAP R/3 ERP software implementation engagements within Puerto Rico younger illegal foreign nationals from Venezuela or other economically depressed countries of Latin America. The illegals have less education and professional experience but they are preferred because they are low cost labor from third-world countries.

Melindez says that SAP has a pervasive aversion to hiring US Citizens generally, and Puerto Rico nationals specifically, for all positions within the company, both for client delivery services as well as internal support and administrative staff and sub-contracted resources.

Melindez is suing for all his economic and mental suffering and anguishes, and other damages mentioned in the complaint for a sum not less than $450,000.00, with double damages as mandated by Puerto Rican Law.

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