Labor & Employment Law

USCA, 3d Circuit, holds suspension of security clearance renders employee unqualified

USCA, 3d Circuit, holds suspension of security clearance renders employee unqualified

Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/Reproduced with permission. Copyright © 2008, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.

Makky v. Chertoff, ___F.3d___(3d Cir. Aug. 7, 2008) is an interesting Title VII case.

The 3d dismissed plaintiff's Title VII mixed-motive discrimination claim alleging national origin and religious discrimination claim because the employee failed to establish a prima facie case under a mixed-motive theory. The employee, an aviation security researcher with the FAA for more than 15 years, was the only Muslim and the only member of his team who was of Arab descent. In 2003, on the day the US invaded Iraq, he was placed on administrative leave with pay and, without further explanation, was told not to come to work. The employee was suspended indefinitely in 2005 after he was denied renewal of his "top secret" security clearance.

In a matter of first impression, the appeals court held a mixed-motive plaintiff fails to establish a prima facie case if there is unchallenged objective evidence that he did not possess the bare minimum qualifications for the position he sought to obtain or retain. Cautioning that it was not imposing a requirement for mixed-motive plaintiffs to show they were subjectively qualified for their jobs, the court spoke "only in terms of an absolute minimum requirement of qualification, best characterized in those circumstances that require a license or a similar prerequisite in order to perform the job." In this case, a security clearance was the minimum requirement needed to hold the employee's position. When his clearance was suspended, the employee was not qualified on the most basic level to perform his job.

Note, the court did not have jurisdiction over the denial of security clearance and plaintiff was represented by the Seton Hall Law School clinic.

Mitchell H. Rubinstein

Harvey Randall comments: This ruling parallels a number of ?lack of a required license? decisions by New York court. In Matter of Rhome, 50 A.D.3d 1422, the Appellate Division sustained an Unemployment Insurance Appeal Board's decision that Rhome?s failing to timely complete the mandated licensing requirements constituted a voluntarily separation from her employment without good cause. Where the license is essential to the individual's ability to perform his or her work lawfully, the courts have approved the termination of the employee if the required license is revoked or suspended as demonstrated by the O'Keefe v Niagara Mohawk Power Corp., 714 FSupp 622] decision, a case involving the loss of a license to drive a motor vehicle. Although such a person may continue to be "qualified" to perform the duties of the position, he or she is typically barred from doing so unless and until a valid license or permit is obtained. In such situations the courts have upheld the employee's immediate suspension without pay, i.e., suspension without pay is proper where the individual lacks the necessary license or certification authorized [see Meliti v Nyquist, 41 NY2d 183].

In contrast, if the license requirement is not essential to the performance of the duties of the position, the courts have ruled that the failure to have a valid license is not fatal to the employee's continuation in service [see Matter of Martin, 86 AD2d 712].

Also, where the duties of a position requires that the incumbent to possess a valid license or permit, an employer's issuing a directive that the appropriate employees obtain and, or, maintain such a license is a non-mandatory subject of collective bargaining [CSEA Local 1000 and State of New York, 27 PERB 3018].

Full post as published by New York Public Personnel Law on September 10, 2008 (boomark / email).