05a00282
06-14-2000
Kami Darakshani, Complainant, Craven H. Crowell, Jr., Chairman, Tennessee Valley Authority, Agency.
Kami Darakshani v. Tennessee Valley Authority
05A00282
June 14, 2000
Kami Darakshani, )
Complainant, ) Request No. 05A00282
)
) Appeal No. 01973407
)
Craven H. Crowell, Jr., ) Agency No. 0603-93075
Chairman, )
Tennessee Valley Authority, ) Hearing No. 250-95-8013X
Agency. )
______________________________)
DENIAL OF REQUEST FOR RECONSIDERATION
Complainant initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Kami
Darakshani v. Tennessee Valley Authority, EEOC Appeal No. 01973407
(November 22, 1999).<1> EEOC Regulations provide that the Commission may,
in its discretion, reconsider any previous Commission decision where the
requesting party demonstrates 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. See 64 Fed. Reg. 37,644,
37,659 (1999) (to be codified and hereinafter referred to as 29 C.F.R. �
1614.405(b)).
In his request for reconsideration, complainant asserts that the prior
decision was erred when it refused to analyze the constitutionality of
the agency policy of excluding non-citizens from employment unless the
applicant was a citizen of a friendly and allied country. Complainant
states that the Supreme Court in Hampton v. Mow Sun Wong, 426 U.S. 88
(1976), held that an agency's adoption of a citizen requirement for
employment was outside the agency's authority and in violation of the Due
Process Clause of the Constitution. Complainant further asserts that
our prior decision should have examined the legitimacy of the agency
policy under our broad authority to enforce anti-discrimination laws.
In addition, complainant states that the prior decision also erred in
its factual finding that the agency applied its citizenship policy in a
uniform manner. Complainant asserts that he provided evidence of other
non-citizens from non-friendly and non-allied countries who were hired
during the relevant time.
After a review of the complainant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that
the request fails to meet the criteria of 29 C.F.R. � 1614.405(b),
and it is the decision of the Commission to deny the request. We note
that in Hampton v. Mow Sun Wong, the Supreme Court stated that the Civil
Service Commission violated the Due Process Clause of the Constitution by
excluding aliens from all federal employment. 426 U.S. 88. The court,
however, stated that if an agency had an overriding national interest,
it could restrict the employment of non-citizens. Id. In that case
as in any case examining the constitutionality of an agency's policy or
regulation, the appropriate reviewing body is the federal court system
which is mandated by the Constitution to make such determinations.
The EEOC's mandate is to enforce the federal anti-discrimination laws.
This mandate is derived from the federal statutes which expressly grant
the Commission authority to act in certain matters. While the EEOC
determines if the agency's actions violated federal equal employment
opportunity laws, the Commission has no authority to make determinations
regarding the constitutionality of an agency's policy or regulation.
See Barela v. Department of State, EEOC Request No. 05890194 (March 9,
1989). In this case, the agency's citizenship policy has had an adverse
effect on complainant and any other non-citizen from countries not on the
State Department's list of friendly and allied countries. The Supreme
Court and the Commission have held that citizenship and alienage
requirements are not protected by federal employment discrimination
laws, and therefore it is not unlawful for an agency to discriminate
against individuals because of their citizenship. See Espinoza v. Farah
Manufacturing Co., 414 U.S. 86 (1973); Hipona v. Office of Personnel
Management, EEOC Appeal No. 01861791 (September 30, 1986). Accordingly,
we find that the agency's citizenship requirement in this case does not
equate to national origin discrimination.
As for complainant's assertion that other similarly situated alien
employees were hired contrary to the citizenship requirement, we find that
the record indicates that these individuals were provided waivers from
the policy based on the contractor's contention that they were essential
to the completion of various projects. Nowhere in the record is there
evidence indicating that the contractor seeking to employ complainant
requested such a waiver from the agency's citizenship policy. As a
result, we find that complainant is not similarly situated to these
comparators. See Godby v. Department of the Treasury, EEOC Request
No. 05960220 (May 7, 1998)(explaining that in order for two or more
employees to be considered similarly situated, all relevant aspects of
the employees work situations must be identical or nearly identical).
For the foregoing reasons, the decision in EEOC Appeal No. 01973407
remains the Commission's final decision. There is no further right of
administrative appeal on the decision of the Commission on this request
for reconsideration.
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (P0400)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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 this
decision. 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.
RIGHT TO REQUEST COUNSEL (Z1199)
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:
June 14, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1On 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.