The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge
ORDER RE: PLAINTIFF'S DISPARATE TREATMENT CLAIM
This is an employment discrimination case brought by Plaintiff Hossein Zeinali against his former employer Defendant Raytheon Company. Zeinali alleges that Raytheon failed to promote him, and ultimately terminated his employment, because he is Iranian. At issue is the viability of Zeinali's disparate treatment claim in so far as it is based on the denial of his applications for promotion between August 2004 and January 2005. The Ninth Circuit has indicated upon remand that the issue is properly before this Court.*fn1 See Zeinali v. Raytheon Co., 2011 U.S. App. LEXIS 7023, 1-2 (9th Cir. 2011) (internal citations omitted) ("Because the district court did not address Raytheon's contention that Zeinali's failure-to-promote claim is time-barred, we refrain from addressing that issue here."). The parties represent that the record is complete and no further briefing is necessary. Accordingly, the Court rules as follows.
The following factual background is taken directly from the appellate court's opinion reversing and remanding this matter for further proceedings in accordance therewith. See Zeinali v. Raytheon Co., 636 F.3d 544 (9th Cir. 2011).*fn2
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 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.
On December 19, 2006, Zeinali filed his first of three individual complaints with the California Department of Fair Employment and Housing ("DFEH"), alleging "Raytheon Management" discriminated against him based on his "race/color" and "national origin/ancestry" by denying promotions for "numerous positions applied for" during the period "2005 through 2006." Def. Ex. B22. He requested and received an immediate right-to-sue notice, and DFEH took no further action on the complaint. Def. Ex. A.
The California Fair Employment and Housing Act ("FEHA") establishes a one-year statute of limitations for an employee to file a complaint with DFEH.*fn3 Cal. Gov. Code § 12960(d). Therefore, Raytheon argues that Zeinali cannot rely on discriminatory acts occurring prior to December 19, 2005 to support his disparate treatment claim, specifically eight instances in which Zeinali unsuccessfully applied for promotions at the company between August 2004 and January 2005. Def. MSJ, P&As at 12. Zeinali asserts that these adverse employment actions were part of a "continuing violation" that culminated in his termination, an act which undisputably occurred within the statute of limitations. As such, Zeinali contends that Raytheon's denial of his applications for promotion prior to December 19, 2005 may serve as a basis for liability on his disparate treatment claim.
Starting in August 2004, Zeinali applied for seventeen positions at Raytheon. Def. Ex. N; Pl. Ex. BB. The requisitions for nine of the positions were cancelled, and therefore the positions were never filled. Eight positions were filled. ...