Hossein Zeinali v. Raytheon Company, et al
Filing
FILED OPINION (JOHNNIE B. RAWLINSON, MILAN D. SMITH, JR. and ROBERT CLIVE JONES) REVERSED AND REMANDED. , Judge: MDS Authoring. FILED AND ENTERED JUDGMENT. [7702774]
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HOSSEIN ZEINALI,
Plaintiff-Appellant,
v.
RAYTHEON COMPANY; DOES 1
THROUGH 25, INCLUSIVE,
Defendant-Appellee.
No. 09-56283
D.C. No.
3:07-cv-01852MMA
OPINION
Appeal from the United States District Court
for the Southern District of California
Michael M. Anello, District Judge, Presiding
Argued and Submitted
November 4, 2010—Pasadena, California
Filed April 4, 2011
Before: Johnnie B. Rawlinson and Milan D. Smith, Jr.,
Circuit Judges, and Robert Clive Jones, District Judge.*
Opinion by Judge Milan D. Smith, Jr.
*The Honorable Robert Clive Jones, United States District Judge for the
District of Nevada, sitting by designation.
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COUNSEL
Ray Keramati, EMLS, P.C., San Diego, California, for the
plaintiff-appellant.
John S. Adler (argued), Henry D. Lederman, and Lara K.
Strauss, Littler Mendelson, P.C., San Diego, California, for
the defendant-appellee.
OPINION
M. SMITH, Circuit Judge:
Plaintiff-Appellant Hossein Zeinali, who is of Iranian
descent, was employed by Defendant-Appellee Raytheon
Company for approximately four years. He alleges, inter alia,
that Raytheon violated the California Fair Employment and
Housing Act (FEHA), Cal. Gov. Code § 12940 et seq., by terminating him on the basis of his race and national origin after
he was denied a security clearance by the Department of
Defense.1 Raytheon contends that (1) per Department of the
Navy v. Egan, 484 U.S. 518 (1988), federal courts lack jurisdiction to decide discrimination cases involving security
clearance decisions, and (2) Zeinali has not introduced any
evidence to satisfy his burdens under McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802-04 (1973), and Guz v.
Bechtel National, Inc., 8 P.3d 1089, 1113-14 (Cal. 2000).
We hold that we have jurisdiction to adjudicate Zeinali’s
discriminatory termination claim, as he does not dispute the
merits of the executive branch’s decision to deny his security
clearance application. Rather, he disputes the bona fides of
Raytheon’s professed security clearance requirement, and he
introduces evidence showing that Raytheon retained similarly
1
Zeinali’s other causes of action and claims of error are addressed in a
memorandum disposition filed contemporaneously with this opinion.
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situated non-Iranian engineers who lacked security clearances. We reverse the district court and hold that Zeinali’s
discrimination claim may proceed.
BACKGROUND
Raytheon hired Zeinali in November 2002 in the position
of “Senior Multi Disciplined Engineer.” Raytheon informed
Zeinali that this position required him to obtain a “Secret”level security clearance, and informed Zeinali that his continued employment was contingent on obtaining such clearance.
Although Zeinali’s initial request for an interim clearance was
rejected, Raytheon retained him while a final clearance decision was pending.
In November 2004, Zeinali transferred to a different engineering position, “Senior Systems Engineer,” which, according to Raytheon, also required a “Secret” clearance. Because
he still lacked the clearance, Zeinali performed the role of
cost account manager, which was “a financial oversight and
record-keeping job” that did not require him to use classified
information.
Following the November 2004 transfer, Zeinali received
positive feedback regarding his job performance. In 2006, one
of his supervisors gave him an “individual achievement
award[ ],” and another supervisor, Richard Zohn, testified that
Zeinali’s performance improved that year. Nevertheless, Zeinali was transferred again in the fall of 2006, both because of
his displeasure at not receiving a promotion and because of a
dispute in which a program manager failed to inform him
about a temporary budget change.
On September 26, 2006, the Department of Defense
informed Zeinali’s attorney that Zeinali’s request for a security clearance had been denied by the Defense Office of Hearings and Appeals. The cover letter noted that Zeinali could
not re-apply for at least one year. After Raytheon learned of
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the denial, it conducted internal discussions regarding Zeinali’s future with the company. Ultimately, the engineering
department’s manager, David Robinette, recommended that
Zeinali be terminated. Raytheon fired Zeinali on November 7,
2006.
Robinette explained in his deposition that there were “multiple factors” motivating the decision to terminate Zeinali.
Zeinali’s “inability to obtain [a] security clearance was a
prime factor,” and was compounded by “the work forecast,”
which showed a lack of “long lived, . . . unclassified assignments,” as well as “Zeinali’s work performance and feedback
. . . on [his] most recent work performance levels.” Ultimately, though, Raytheon decided to terminate Zeinali
because he did not obtain a clearance. Robinette stated that if
Zeinali had received a clearance, he would not have been
fired in spite of the declining work forecast, or his unfavorable job performance.
Zeinali generally agrees with this outline of events, but
points to evidence that at least two non-Iranian engineers
were retained while Zeinali was fired. Based on this evidence,
he contends that he has satisfied his burdens under McDonnell
Douglas and Guz.
The district court granted Raytheon’s motion for summary
judgment, concluding that it lacked subject matter jurisdiction
“because [Zeinali’s] claims are premised on the denial of his
security clearance,” and, in the alternative, that Zeinali’s discrimination claim failed on the merits because he was unqualified for his position due to his lack of a security clearance.
JURISDICTION AND STANDARD OF REVIEW
The district court’s order granting Raytheon’s motion for
summary judgment is a final appealable order under 28
U.S.C. § 1291. We review the district court’s grant of summary judgment de novo, drawing all reasonable inferences in
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Zeinali’s favor. Cmty. House, Inc. v. City of Boise, Idaho, 623
F.3d 945, 959 (9th Cir. 2010).
DISCUSSION
A.
Security Clearances and Judicial Review
[1] As a preliminary matter, Raytheon contends that we
lack jurisdiction over Zeinali’s discrimination claim because
of our decision in Brazil v. U.S. Department of the Navy, 66
F.3d 193, 196 (9th Cir. 1995), which held that federal courts
may not “review . . . security clearance decisions made by the
Executive or his delegee . . . in the context of a Title VII discrimination action.” For the reasons that follow, we disagree
with Raytheon’s expansive reading of Brazil.
[2] The rule stated in Brazil was drawn from the Supreme
Court’s holding in Department of the Navy v. Egan, 484 U.S.
518 (1988), that employment decisions based on the executive
branch’s security clearance decisions are not reviewable by
the administrative agency that adjudicates civil service disputes. The plaintiff in Egan was a civilian employee involved
in maintaining a nuclear submarine, a job which required him
to possess a security clearance. Id. at 520. After his security
clearance request was denied, he was removed from his position. Id. at 521-22. He appealed this employment decision to
the Merit Systems Protection Board, an administrative agency
which reviews whether government agencies have adequate
cause to terminate employees. Id. at 522, 530-31 (citing 5
U.S.C. §§ 7513, 7701). The dispute, as ultimately presented to
the Supreme Court, was whether the Board had the authority
to “examine the merits of the security-clearance denial . . . .”
Id. at 526.
The Court held that “the grant of security clearance to a
particular employee, a sensitive and inherently discretionary
judgment call, is committed by law to the appropriate agency
of the Executive Branch.” Id. at 527. “[T]he President[,] as
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head of the Executive Branch and as Commander in Chief,”
has “authority to classify and control access to information
bearing on national security and to determine whether an individual is sufficiently trustworthy to occupy a position in the
Executive Branch that will give that person access to such
information . . . .” Id. The executive’s decision to grant or
deny a security clearance requires the type of “[p]redictive
judgment” that “must be made by those with the necessary
expertise in protecting classified information.” Id. at 529.
Thus, “[f]or reasons too obvious to call for enlarged discussion, the protection of classified information must be committed to the broad discretion of the agency responsible, and this
must include broad discretion to determine who may have
access to it.” Id. (alteration, citation, and internal quotation
marks omitted). Accordingly, the Court concluded that the
Merit Systems Protection Board, as an “outside nonexpert
body,” could not “review the substance of such a judgment
. . . .” Id.
We first examined Egan at length in Dorfmont v. Brown,
913 F.2d 1399 (9th Cir. 1990), where the Department of
Defense had revoked the plaintiff’s security clearance on the
grounds that she was a national security risk. Id. at 1400. The
plaintiff, who worked for a private contractor, filed suit
against the United States, the Secretary of Defense, and the
Director of the Department of Defense Legal Services
Agency, “seeking an injunction against the revocation of her
security clearance,” on the ground that the Department of
Defense’s decision violated her constitutional “rights to procedural and substantive due process.” Id. We explained that
although Egan’s holding was confined to the Merit Systems
Protection Board, “[t]he logic of that decision precludes judicial review as well.” Id. at 1401 (emphasis added). “When it
comes to security matters, a federal court is ‘an outside nonexpert body.’ We have no more business reviewing the merits
of a decision to grant or revoke a security clearance than does
the [Merit Systems Protection Board].” Id. (quoting Egan,
484 U.S. at 529). We noted that “[a]lthough Dorfmont fash-
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ions her claims as due process challenges,” her arguments
were in fact “attacks on the merits of the decision to lift her
security clearance.” Id. Accordingly, we held that “the district
court has no authority to review” these challenges to the merits of the security clearance decision. Id. at 1402.2
Following Dorfmont, we issued the decision at the heart of
Raytheon’s current defense. In Brazil, we held that a plaintiff
is barred from bringing a Title VII employment discrimination claim to challenge an allegedly discriminatory security
clearance decision. Plaintiff Brazil, who was a civilian
employee stationed on a nuclear-equipped naval ship, was
required to hold a security clearance as a condition of his
employment. 66 F.3d at 195 & n.1. Based on Brazil’s “disciplinary and interpersonal problems,” the ship’s captain recommended that the Navy revoke Brazil’s security clearance. Id.
at 195. Brazil then instituted Title VII proceedings, alleging
that the captain had discriminated against him on the basis of
race by recommending that his clearance be revoked. Id. We
held that Brazil was barred under Egan from challenging the
Navy’s security clearance decision. Id. at 196-97.3
We began our analysis by noting that “Egan prohibited . . .
outside administrative board review of security clearance
decisions,” and “Dorfmont extended [Egan’s] bar to judicial
review.” Id. at 196. Thus, “[a]lthough Brazil’s circumstances
may be compelling, he asks the court to do exactly what Egan
and Dorfmont forbid”—namely, for “the court to perform
2
The plaintiff also raised two arguments that did not implicate the merits of the security clearance decision, and we held that she failed to state
a colorable claim that her constitutional due process rights had been
harmed. Id. at 1403.
3
We also held that Brazil was barred from bringing a constitutional
challenge under Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971), because “Title VII ‘provides the exclusive
judicial remedy for claims of discrimination in federal employment.’ ”
Brazil, 66 F.3d at 197 (quoting Brown v. Gen. Servs. Admin., 425 U.S.
820, 835 (1976)).
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some review of the merits of the security clearance decision.”
Id. Brazil contended, however, that the “Title VII analysis
does not involve a review of the merits because it does not
require the court to determine whether the Navy’s reasons for
revoking his clearance were valid; it merely requires a determination of whether the proffered reasons were the actual reasons.” Id. at 197. We disagreed because “[t]he more valid a
reason appears upon evaluation, the less likely a court will be
to find that reason pretextual; the converse is also true.” Id.
Thus, under the second step of the McDonnell Douglas
burden-shifting framework, “[i]t is impossible for the court
to” determine “whether the Navy’s proffered reasons were
legitimate without evaluating their merits.” Id. We also
explained that, even if the second step were satisfied, “it is
very likely to be impossible for [the court] to proceed to step
three and determine whether the given reasons were mere pretext without considering their merits.” Id. Ultimately, we concluded that “the merit of such decisions simply cannot be
wholly divorced from a determination of whether they are
legitimate or pretextual.” Id.
In the fifteen years following our decision in Brazil, we
have not discussed the Egan-Dorfmont-Brazil line of cases in
a precedential opinion. Raytheon asks us to read these cases
broadly, arguing that the logic of “Egan bars discrimination
and wrongful termination claims where, as here, the denial of
a security clearance plays a central role,” and that under Egan
and its progeny, if “the denial of a security clearance is central
to the defense, the court lacks jurisdiction and the claims must
be dismissed.” Zeinali counters by arguing that “courts do
have jurisdiction to consider questions that do not involve the
merits of the security clearance decision itself, such as
whether in fact clearance was denied, . . . whether transfer to
a nonsensitive position may be feasible[,] . . . [and] ‘whether
the security clearance was a requirement for the job and thus
its denial was an appropriate cause for dismissal.’ ” (Alter-
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ations and citation omitted, quoting Jamil v. Sec’y, Dep’t of
Def., 910 F.2d 1203, 1206 (4th Cir. 1990).4)
[3] We conclude that Zeinali has the better argument. The
core holdings of Egan, Dorfmont, and Brazil are that federal
courts may not review the merits of the executive’s decision
to grant or deny a security clearance. See, e.g., Brazil, 66 F.3d
at 196-97. In each of those three cases, the plaintiff (1)
brought suit against the government agency responsible for
the security clearance determination, and (2) directly challenged the agency’s decision to deny or revoke a security
clearance. None of these cases held that federal courts lack
jurisdiction over employment discrimination claims like the
ones in this lawsuit, which are brought against a private
employer who was not responsible for the executive’s security
clearance decision.
[4] The fundamental logic of Brazil is that in an employment discrimination claim against the agency that made the
security clearance decision, the second and third steps of the
McDonnell Douglas framework necessarily require an inquiry
into the defendant’s proffered reasons for the adverse employment decision. Id. at 197. Raytheon’s proposed approach is
particularly inappropriate in cases brought against private
employers, because such defendants are rarely responsible for
(or even substantially involved in) the government’s security
clearance decisions. But if the plaintiff sues a defendant for
allegedly discriminatory conduct that is merely connected to
the government’s security clearance decision, the concerns of
Egan are not necessarily implicated. We are therefore persuaded by the reasoning of the Third Circuit that federal
4
We note that the case quoted by Zeinali is not particularly helpful to
his cause, as that decision merely “reserv[ed] [the] ‘question of whether
Egan precludes courts from reviewing security clearance decisions’ for
Title VII discrimination.” Guillot v. Garrett, 970 F.2d 1320, 1324 n.9 (4th
Cir. 1992) (quoting Jamil, 910 F.2d at 1207). A subsequent case from that
circuit answered this question in the negative. Becerra v. Dalton, 94 F.3d
145, 149 (4th Cir. 1996).
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courts have jurisdiction to decide claims that “do[ ] not necessarily require consideration of the merits of a security clearance decision,” as long as they remain vigilant not to
“question the motivation behind the decision to deny [the
plaintiff’s] security clearance.” Makky v. Chertoff, 541 F.3d
205, 213 (3d Cir. 2008).5
We have found no case in which a court has ever adopted
a bright-line rule as broad as the one suggested by Raytheon.
Raytheon’s approach would essentially immunize government
contractors from any liability in cases involving employees
whose security clearances are revoked or denied. Tellingly,
out of the numerous circuit court cases refusing to exercise
jurisdiction over security clearance-related claims,6 only two
5
Our sister circuits have adopted a similar approach and have held that
various types of security clearance-related claims are justiciable. The Federal Circuit (which reviews the decisions of the Merit Systems Protection
Board, and accordingly has issued a number of opinions on this issue) has
consistently read Egan as holding that “the Board may determine”—and
a court may review—“whether a security clearance was denied, whether
the security clearance was a requirement of the appellant’s position, and
whether the procedures set forth in [the applicable statute] were followed
. . . .” Romero v. Dep’t of Def., 527 F.3d 1324, 1328 (Fed. Cir. 2008)
(quoting Hesse v. Dep’t of State, 217 F.3d 1372, 1376 (Fed. Cir. 2000)).
This approach is supported by the text of Egan itself, which noted that the
parties agreed that the Board could review “the fact of denial, . . . the position’s requirement of security clearance, and . . . the satisfactory provision
of the requisite procedural protections[.]” Egan, 484 U.S. at 526. Similarly, other circuits have exercised jurisdiction over security clearancerelated claims premised on a mixed-motive theory of discrimination,
Makky, 541 F.3d at 213, a defendant agency’s failure to follow its own
regulations, Duane v. U.S. Dep’t of Def., 275 F.3d 988, 993 (10th Cir.
2002); Stehney v. Perry, 101 F.3d 925, 934-35 (3d Cir. 1996); Jamil, 910
F.2d at 1208, and constitutional challenges to the defendant agency’s
actions, Stehney, 101 F.3d at 936-37; see also Ryan v. Reno, 168 F.3d 520,
524 (D.C. Cir. 1999) (stating without holding that constitutional challenges are permissible); Dorfmont, 913 F.2d at 1402 (same).
6
E.g., El-Ganayni v. U.S. Dep’t of Energy, 591 F.3d 176, 186 (3d Cir.
2010); Hill v. White, 321 F.3d 1334, 1335-36 (11th Cir. 2003) (per
curiam); Ryan, 168 F.3d at 524; Becerra, 94 F.3d at 149; Perez v. F.B.I.,
71 F.3d 513, 514-15 (5th Cir. 1995) (per curiam).
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published decisions involved private employers, and only one
of these cases even discussed Egan.7 In that case, Beattie v.
Boeing Co., 43 F.3d 559 (10th Cir. 1994), the plaintiff
brought a Bivens action alleging that his employer Boeing
caused him reputational harm, lost promotional opportunities,
and mental distress from on-the-job harassment, all of which
he suffered after Boeing refused to grant him access to the
secure worksite where Air Force One was being assembled.
Id. at 562. The court noted that Boeing’s contract with the
government “provided that the planes be constructed in a
secured area into which only persons with access clearance
could enter.” Id. at 560. The contracts also provided that only
the Air Force could grant “unescorted access” clearances, but
allowed Boeing to issue “escorted access” clearances. Id. The
contracts also required Boeing to use specific criteria to determine whether an employee could receive such clearances. Id.
The court held that, because the contract mandated the security clearance requirements that allegedly caused the plaintiff’s
injury, Egan applied to bar the plaintiff’s claims. Id. at
565-66. The court acknowledged that its conclusion was
somewhat unusual because the case involved a private
7
The other published case involving a private employer, Blankenship v.
Martin Marietta Energy Sys. Inc., 83 F.3d 153 (6th Cir. 1996), is discussed infra, along with a similar unpublished case, Strong v. Orkand
Corp., 83 F. App’x 751 (6th Cir. 2003), which may be cited under Sixth
Circuit rules, see 6th Cir. R. 28(f) (“Citation of unpublished opinions is
permitted”). In both cases, the court exercised jurisdiction over the plaintiff’s employment discrimination claims.
We have also found a number of cases (all decided after Egan) in which
district courts exercised jurisdiction over employment discrimination
claims involving plaintiffs who were terminated on account of their federal security clearance status. See, e.g., Fields v. Aramark Facility Servs.,
Inc., 240 F. Supp. 2d 453, 453-54 (D. Md. 2003); Pascouau v. Martin
Marietta Corp., 994 F. Supp. 1276, 1282 (D. Colo. 1998); McCoy v. Pa.
Power & Light Co., 933 F. Supp. 438, 443-44 (M.D. Pa. 1996); McDaniel
v. AlliedSignal, Inc., 896 F. Supp. 1482, 1491 (W.D. Mo. 1995); Walker
v. Corr. Med. Sys., 886 F. Supp. 515, 519, 523 (W.D. Pa. 1995);
Karalewitz v. UE & C-Catalytic, 811 F. Supp. 311, 313, 318 (E.D. Mich.
1993).
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employer, but held that the result was warranted under the
particular facts at issue:
To be sure, the case before us involves a private
party rather than a government agency. However,
Boeing’s limited authority to grant or deny escorted
access clearance derived solely from its contract
with the Air Force. Boeing’s authority was thus delegated to it by the Air Force, and hence by the Executive Branch. We see no compelling reason to treat
the security clearance decision by Boeing differently
than the similar decision made by the Air Force.
Both decisions represent the exercise of authority
delegated by the Executive Branch and are entitled
to appropriate deference by the federal courts. Therefore, we conclude that we may not review Boeing’s
action or that of the Air Force in denying [the plaintiff] access to the Air Force One area.
Id. at 566 (footnote and citations omitted).
[5] Beattie is, in many ways, the exception that proves the
rule that private employers can rarely avail themselves of
Egan’s jurisdictional bar. In employment discrimination suits
against private employers, courts can generally avoid examining the merits of the government’s security clearance decision. Raytheon’s broad reading of Egan and Brazil is
inappropriate in such cases.
[6] Here, Zeinali does not contend that the Department of
Defense (or any other agent of the executive branch) improperly denied his application for a security clearance. Rather,
Zeinali contends that Raytheon’s security clearance requirement was not a bona fide job requirement,8 and that Raytheon
used the government’s security clearance decision as a pretext
8
Again, we note that the parties in Egan agreed that a job “position’s
requirement of security clearance” was reviewable. Egan, 484 U.S. at 526.
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for terminating Zeinali in a discriminatory fashion. In order to
review Zeinali’s contentions in a full and fair manner, we
need not examine the merits of the government’s decision
regarding Zeinali’s security clearance. Rather, we need only
examine the employment decisions made by Raytheon. Egan
does not strip the courts of jurisdiction to make such determinations.
[7] Accordingly, we hold that Egan does not bar our
review in this case. Because we need not inquire into the merits or the motivations “behind the decision to deny [the plaintiff’s] security clearance,” Makky, 541 F.3d at 213, the district
court had jurisdiction under 28 U.S.C. § 1332(a)(1), and we
have jurisdiction under 28 U.S.C. § 1291.
B.
The Employment Discrimination Claim
[8] As the parties’ central point of contention involved the
federal courts’ exercise of jurisdiction, we will explain only
briefly why Raytheon is not entitled to summary judgment.
Zeinali’s basic contention is that he has satisfied his summary
judgment burden by introducing evidence that Raytheon terminated him while retaining at least two similarly situated
non-Iranian engineers who lacked security clearances. The
record and case law support Zeinali’s position.
[9] “ ‘[W]hen entertaining motions for summary judgment
in employment discrimination cases arising under state law,
federal courts sitting in diversity must apply the McDonnell
Douglas burden-shifting scheme as a federal procedural
rule.’ ” Dawson v. Entek Int’l, 630 F.3d 928, 934 (9th Cir.
2011) (quoting Snead v. Metro. Prop. & Cas. Ins. Co., 237
F.3d 1080, 1094 (9th Cir. 2001)). In order to defeat a defendant’s motion for summary judgment on a discrimination
claim:
[T]he employee must first establish a prima facie
case of discrimination. If he does, the employer must
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articulate a legitimate, nondiscriminatory reason for
the challenged action. Finally, if the employer satisfies this burden, the employee must show that the
reason is pretextual either directly by persuading the
court that a discriminatory reason more likely motivated the employer or indirectly by showing that the
employer’s proffered explanation is unworthy of credence.
Id. at 934-35 (quoting Davis v. Team Elec. Co., 520 F.3d
1080, 1089 (9th Cir. 2008)). Under California law, a prima
facie case of discrimination requires the plaintiff to “provide
evidence that (1) he was a member of a protected class, (2) he
was qualified for the position he sought or was performing
competently in the position he held, (3) he suffered an adverse
employment action, such as termination, demotion, or denial
of an available job, and (4) some other circumstance suggests
discriminatory motive.” Guz, 8 P.3d at 1113. In light of the
similarities between FEHA and Title VII, courts routinely rely
on both California and federal case law. Id.; see also Brooks
v. City of San Mateo, 229 F.3d 917, 923 n.3 (9th Cir. 2000).
[10] There is no dispute that Zeinali was a member of a
protected class based on his national origin (Iranian), and that
he suffered an adverse employment action by being terminated. The parties contest whether Zeinali was qualified for
his position and whether the circumstances of Raytheon’s termination suggest a discriminatory motive. In this regard, Zeinali has satisfied his burden by identifying evidence that
Raytheon’s security clearance requirement was not a bona
fide job requirement, and that Raytheon’s reliance on the
security clearance requirement was pretextual.
We note as a preliminary matter that it is undisputed that
Raytheon has consistently said that Zeinali’s positions
required a security clearance. Raytheon’s job listings, offer
letter, post-hiring conduct, internal documentation, and deposition testimony, all suggest that Raytheon required its engi-
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neers to hold security clearances. Were this the only evidence
presented to us, we would likely agree with Raytheon’s assertion that a plaintiff such as Zeinali cannot succeed on a discriminatory termination claim if he fails to meet basic job
qualifications. The language of FEHA explicitly permits
employers to take adverse employment actions “based upon
a bona fide occupational qualification.” Cal. Gov. Code
§ 12940. Thus, we suspect that the California courts would
agree with the Third Circuit’s observation that a surgeon cannot prevail on a discriminatory termination claim if he “never
went to medical school.” Makky, 541 F.3d at 215. Applying
this common sense rule, the Third Circuit held that a Transportation Security Administration agent had not made a prima
facie mixed-motive case (which, strictly speaking, was not
governed by the McDonnell Douglas burden-shifting analysis,
but is persuasive nonetheless) where his security clearance
had been suspended and he did “not dispute that his position
required him to have access to National Security Information.” Id. at 216. Similarly, in a disability discrimination case,
the Sixth Circuit affirmed summary judgment for a nuclear
plant owner because it was undisputed “that without security
clearance, a person could not satisfy the requirements of any
job in the plant,” and the defendant had “never retained an
employee after the [Department of Energy] revoked the security clearance.” Blankenship v. Martin Marietta Energy Sys.
Inc., 83 F.3d 153, 156 (6th Cir. 1996).
Despite these general rules, Zeinali introduces evidence
that raises a triable dispute regarding whether a security clearance was in fact a “bona fide occupational qualification” for
Raytheon engineers. Cal. Gov. Code § 12940. In his deposition, Zeinali stated that two other individuals in professional
or engineering positions in San Diego lacked security clearances. Raytheon’s designated agents testified that a software
engineer had his security clearance revoked for national
security reasons and an engineering section manager had his
clearance revoked for financial reasons. Neither of these
employees were Iranian or Middle Eastern, and they contin-
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ued to work for at least four years between the revocation of
their clearances and the time of the Raytheon deposition.
[11] In light of the fact that Raytheon retained multiple
non-Iranian engineers after their security clearances were
revoked, Zeinali has raised triable disputes regarding (1)
whether security clearances were a bona fide requirement for
Raytheon engineers, and (2) whether Raytheon’s central purported reason for terminating him (his lack of a security clearance) was pretextual. The Supreme Court’s McDonnell
Douglas opinion contains a salient observation about pretext:
“Especially relevant to such a showing [of pretext] would be
evidence that white employees involved in acts against [the
employer] of comparable seriousness to the [plaintiff’s disruptive protesting activities] were nevertheless retained or
rehired. [An employer] may justifiably refuse to rehire one
who was engaged in unlawful, disruptive acts against it, but
only if this criterion is applied alike to members of all races.”
McDonnell Douglas, 411 U.S. at 804. Analogously, in the
present case, Raytheon would certainly be justified in firing
employees who lack security clearances, “but only if this criterion is applied alike to members of all races.” Id.; see also
Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220 (9th Cir.
1998) (holding that pretext is shown if other employees with
similar qualifications are treated more favorably).
Raytheon contends that the other engineers who lacked
clearances are not similarly situated to Zeinali because their
clearances were revoked, whereas Zeinali’s clearance was
denied. We have explained that “individuals seeking relief
must demonstrate, at the least, that they are similarly situated
to those employees in all material respects.” Moran v. Selig,
447 F.3d 748, 755 (9th Cir. 2006). Raytheon presents no evidence or analogous legal authority to explain how a clearance
“revocation” is materially different from a clearance “denial.”
To sustain the purported distinction between security clearance “revocations” and “denials,” Raytheon relies on David-
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son v. Lockheed Martin, an unpublished case from the Eastern
District of Tennessee. See Davidson v. Lockheed Martin
Energy Sys., Inc., No. 3:06-CV-45, 2007 WL 1231686 (E.D.
Tenn. Apr. 26, 2007). The plaintiff in Davidson had been a
private security guard at a nuclear facility, but was fired after
the Department of Energy terminated her security clearance.
Id. at *1-2. She argued that certain “white employees were
treated more favorably” because they were retained after they
lost their security clearances. Id. at *7. The court concluded,
however, that these white employees were not similarly situated to the plaintiff because their clearances had been suspended whereas the plaintiff’s clearance had been terminated.
Id. at *7-8. The court explained:
there is an important difference between the termination of a clearance and the suspension of a clearance.
If an individual’s clearance is suspended, [the company] continues to employ the individual but assigns
the individual to a position not requiring a clearance
pending [the Department of Energy’s] decision
whether to reinstate or to terminate the individual’s
clearance. If the individual’s suspended clearance is
later reinstated, the individual’s employment is continued. But if the individual’s clearance is terminated, the individual’s employment is terminated.
Id. at *3. The court held that the plaintiff’s discrimination
claim failed as a matter of law because the plaintiff was
treated similarly to the two other employees whose clearances
had been terminated, and was not similarly situated to the
employees who had been retained while their clearances were
suspended. Id. at *7-8.9
9
Another case cited by Raytheon, Strong v. Orkand Corp., is similar.
There, the plaintiff failed to show that he had been treated in a disparate
manner, as the defendant took an “identical action . . . against [the plaintiff] for his inability to obtain security clearance” as it did against the
plaintiff’s similarly situated co-worker. 83 F. App’x at 753.
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[12] Unlike the defendant in Davidson, Raytheon has not
identified any legal or factual distinction between Zeinali’s
clearance denial and the two non-Iranian engineers’ clearance
revocations. Absent any evidence from Raytheon establishing
that the two non-Iranian engineers’ clearance revocations
were materially different from Zeinali’s clearance denial,
Raytheon’s reliance on Davidson is unavailing. Zeinali has
introduced sufficient evidence from which a reasonable factfinder could conclude that Raytheon applied its security clearance policy in a discriminatory manner.
CONCLUSION
We conclude that, even after Egan, federal courts have
jurisdiction over employment discrimination claims in which
the plaintiff does not dispute the merits of the government’s
security clearance decision. Here, the record shows that two
non-Iranian engineers were able to retain their positions for
over four years after having their clearances revoked. Raytheon’s failure to apply its purported security clearance
requirement in an evenhanded manner gives rise to an inference that its requirement is pretext for discrimination.
Accordingly, the judgment of the district court is
REVERSED and REMANDED.
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