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An employee of a federal government contractor cannot contest the federal government's decision to deny a security clearance; but the employee can contest whether his employer's requirement of a security clearance is a bona fide job requirement.

Zeinali v. Raytheon Co., 636 F.3d 544 (9^th Cir. April 4, 2011)

Introduction: This is a California Fair Employment and Housing Act (FEHA) action alleging wrongful termination based on race and national origin.

Facts: Hossein Zeinali, who is of Iranian descent, was eventually terminated from his engineering position with Raytheon because he was denied a security clearance by the federal government. A "secret" security clearance was a job requirement for the engineering position. However, Zeinali presented evidence that two other engineers who lost their "secret" security clearances, and they were not fired.

District court: The district court granted summary judgment for Raytheon.

Appeal: The Ninth Circuit reverses and remands. An employee may not contest the federal government's decision to deny a security clearance even if the employee believes that the basis of the denial was discriminatory. See, Department of Navy v. Egan, 484 U.S. 518 (1988). But that is not what Zeinali is attempting to do. Zeinali is contesting whether Raytheon's decision to require a secret security clearance is bona fide where Zeinali can point to two other engineers of different race and national origin who lost their secret security clearances and have not been terminated. This is sufficient evidence of pretext for Zeinali's claim to survive summary judgment.