1 This appeal has been assigned to a panel of two Board members, as authorized by Secretary's Order 2-96. 61 Fed. Reg. 19,978 §5 (May 3, 1996).
2Hasanv. Florida Power & Light Co., ARB No. 01-004, ALJ No. 2000-ERA-12 (ARB May 17, 2001); Hasan v. Sargent & Lundy, ARB No. 01-001, ALJ No. 2000-ERA-7 (ARB Apr. 30, 2001); Hasan v. Commonwealth Edison Co., ARB Nos. 01-002, 01-003; ALJ Nos. 2000-ERA-8, 2000-ERA-11(ARB Apr. 23, 2001); Hasan v. Commonwealth Edison Co., ARB No. 01-005, ALJ No. 2000-ERA-13 (ARB Apr. 23, 2001); Hasan v. Burns & Roe Enterprises, Inc., ARB No. 00-080, ALJ No. 2000-ERA-6 (ARB Jan. 30, 2001); Hasan v. Commonwealth Edison Co., ARB No. 00-028, ALJ No. 2000-ERA-1, (ARB Dec. 29, 2000); Hasan v. Intergraph Corp., ARB No. 97-016, ALJ No. 96-ERA-17, (ARB Aug. 6, 1997); Hasan v. Bechtel Power Corp., No. 94-ERA-21 (Sec'y Mar. 16, 1995); Hasan v. Bechtel Power Corp., No. 93-ERA-40 (Sec'y Feb. 13, 1995); Hasan v. System Energy Resources, Inc., No. 89-ERA-36 (Sec'y Sept. 23, 1992); Hasan v. Nuclear Power Services, Inc., No. 86-ERA-24 (Sec'y June 26, 1991); Hasan v. Stone & Webster Engineersand Constructors, Inc., ARB No. 01-007, ALJ No. 2000-ERA-10 (ALJ Oct. 5, 2000); Hasan v. Sargent & Lundy, No. 96-ERA-27 (ALJ Nov. 4, 1996); Hasan v. Bechtel Power Corp., No. 93-ERA-22 (ALJ Dec. 8, 1994); Hasan v. Nuclear Power Services Inc., No. 86-ERA-36 (ALJ July 27, 1989).
3 OSHA is the agency within the Department of Labor ("DOL") charged with investigating ERA whistleblower complaints. See 29 C.F.R. §§24.4, 24.5 (2000).
4 Hasan asserts on appeal that Respondent had to be aware of his protected activity because he disclosed it in his November 6, 1999 letter. However, Hasan did not raise this argument in response to the ALJ's show cause order. We decline to consider this argument for the first time on appeal and, instead, limit our review to the record established before the ALJ. Moreover, even accepting Hasan's statement, Hasan nevertheless failed to satisfy the second element of his prima facie case. An allegation that the Respondent must have known of his protected activity is insufficient, standing alone, to establish that one of the employees responsible for or having input in the decision to reject Hasan's application for employment knew about his protected activity. Accord Hasan v. Burns & Roe Enterprises, Inc., ARB No. 00-080, ALJ No. 2000-ERA-6, slip op. at 5-7 & n.8 (ARB Jan. 30, 2001) (The complainant failed to establish a prima facie case where the hiring official averred that he did not see the letter in which the complainant revealed his whistleblowing activities prior to making the decision not to hire the complainant.).
5 Hasan has raised a number of other arguments in this case. The Board finds those arguments without merit and they do not warrant a separate discussion in this Order.