01973407
11-22-1999
Kami Darakshani, Complainant, v. Craven H. Crowell, Jr., Chairman, Tennessee Valley Authority, Agency.
Kami Darakshani, )
Complainant, )
) Appeal No. 01973407
v. )
) Agency No. 0603-93075
Craven H. Crowell, Jr., )
Chairman, ) Hearing No. 250-95-8013X
Tennessee Valley Authority, )
Agency. )
______________________________)
DECISION
Complainant filed a timely appeal with this Commission on March 15,
1997, from a final agency decision (�FAD�) dated February 13, 1997,
concerning her complaint alleging employment discrimination in violation
of Title VII of the Civil Rights Act of 1964 (�Title VII�), as amended, 42
U.S.C. � 2000e et seq.<1> In his complaint, complainant claimed that he
was discriminated against on the basis of national origin (Iranian) when:
(1) the agency refused to authorize his hiring by an agency contractor
in September of 1990 and (2) the agency failed to rehire him in 1993.
This appeal is accepted in accordance with the provisions of EEOC
Order No. 960.001. For the following reasons, the agency's decision
is AFFIRMED.
At the time in question, complainant was employed by the agency as a
Civil Engineer and was a permanent resident alien from the country of
Iran. During his tenure with the agency, complainant rotated through
several of the agency's nuclear power plants. At sometime in 1990,
the agency informed complainant that he was being terminated as part
of a reduction in force (�RIF�). Initially, complainant's termination
was scheduled for August of 1990, however that date was later changed
to November 30, 1990. After learning of the RIF, complainant sought
employment with an agency contractor. When the contractor contacted
the agency for approval to hire complainant, the agency denied approval
because complainant was a citizen of Iran, a country not listed by the
United States Department of State as a friendly and allied country.<2>
Nevertheless, prior to his termination, the agency offered complainant
a temporary position expiring in September of 1991. In October 1991,
complainant was assigned to the agency's Employee Transition Program
(�ETP�), which was designed to assist displaced employees find new
jobs.<3> Prior to the expiration of his appointment with the ETP,
complainant applied for several engineering positions with the agency.
However, he was never selected for any such positions. While complainant
was refused employment with the contractor in 1990, he stated that he
did not become aware of the reason for the refusal until April 1993.
Believing that he was the victim of discrimination, complainant sought
EEO counseling, and thereafter, filed a formal EEO complaint on June
3, 1993. Subsequently, complainant requested a hearing before an EEOC
Administrative Judge (�AJ�). Following a hearing, the AJ issued a
Recommended Decision (�RD�), finding no discrimination. In his RD,
the AJ concluded that complainant established a prima facie case
of national origin discrimination regarding the agency's refusal to
authorize his hiring by the agency contractor. However, the AJ found
that complainant failed to establish a prima facie case with regards to
the agency's failure to rehire him in 1993, because complainant failed
to show that the agency rehired any similarly situated employees outside
his protective group. The AJ then found that the agency had articulated
a legitimate, nondiscriminatory reason for its action, namely that its
policy was not to hire or allow its contractors to hire non-citizens
from countries not listed on the State Department's list of friendly
and allied countries. Finally, the AJ found that complainant had not
shown that the agency's reason was pretext for unlawful discrimination.
The agency's FAD adopted the AJ's RD. On appeal, complainant contends
that the agency's policy regarding non-citizens is unconstitutional
and therefore can not legitimate reason for the agency's action.
Complainant further contends that he established a prima facie case
regarding the agency's refusal to rehire him, in that the agency filled
engineering positions during the period complainant sought re-employment.
The agency requests that we adopt its FAD.
First, we note that the Commission has no jurisdiction to make
determinations regarding the constitutionality of an agency's policies
or regulations. In cases such as this, the Commission's role is to
determine if the agency has uniformly applied its policies and regulations
in a non-discriminatory manner. Here, the record shows that the agency
has applied the policy to all non-citizens of unfriendly and non-allied
countries in a uniform manner. Since complainant failed to show that
the policy was applied in a non-uniform manner, we agree with the AJ's
finding of no discrimination.
The Commission has reviewed the record in its entirety, including the
statements submitted on appeal, and finds that the AJ's RD sets forth
the relevant facts and properly analyzes the appropriate regulations,
policies and laws. Therefore, after careful review, we discern no basis
upon which to overturn the AJ's finding of no discrimination in this
matter and conclude that the AJ correctly determined that complainant
had not established that the agency discriminated against him on the
basis of his national origin. Accordingly, we AFFIRM the FAD which
adopted the AJ's finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, MUST BE FILED
WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR
DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS
OF RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.405). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. In the
absence of a legible postmark, the request to reconsider shall be deemed
timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. �1614.604).
The request or opposition must also include proof of service on the
other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. �1614.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that you have the right to file
a civil action in an appropriate United States District Court WITHIN
NINETY (90) CALENDAR DAYS from the date that you receive the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. If you file a civil action, YOU MUST NAME AS THE
DEFENDANT IN THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY HEAD
OR DEPARTMENT HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME AND
OFFICIAL TITLE. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. ��791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil
action must be filed within the time limits as stated in the paragraph
above ("Right to File A Civil Action").
FOR THE COMMISSION:
November 22, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
Federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2 The agency stated its policy required all employees including contracted
employees to be either a U.S. citizen or a citizen of a country on the
State Department's list of friendly and allied countries. Complainant was
initially hired by the agency in 1967, when Iran was in good relation
with the United States. The agency stated that, once complainant's
employment was terminated, he would be subject to the citizenship policy.
3 Initially, complainant was assigned to the ETP for outplacement.
However, after complainant informed the agency that he needed eleven
months to obtain his retirement eligibility, he became a temporary staff
member of the ETP with his appointment expiring in April of 1993.