Hasan v. Stone & Webster Engineers & Constructors, Inc., ARB No. 03-058, ALJ No. 2000-ERA-10 (ARB June 27, 2003)

U.S. Department of Labor

Administrative Review Board 200 Constitution Avenue, N.W. Washington, D.C. 20210

ARB CASE NO. 03-058
ALJ CASE NO. 00-ERA-10
DATE: June 27, 2003

In the Matter of:

SYED M. A. HASAN,
    COMPLAINANT,

    v.

STONE AND WEBSTER ENGINEERS
AND CONSTRUCTORS, INC.,
    RESPONDENT.

BEFORE: THE ADMINISTRATIVE REVIEW BOARD

Appearances:

For the Complainant:
    Syed M. A. Hasan, pro se, Madison, Alabama

For the Respondent:
    Joseph A. Capezzuto, Esq., Stone & Webster Engineers & Constructors, Inc., Boston Massachusetts

    Gary A. Rubin, Esq., Skadden, Arps, Slate, Meagher & Flom, LLP, Wilmington, Delaware

   Syed M. A. Hasan has petitioned the Administrative Review Board (ARB) to review an Administrative Law Judge's (ALJ) decision and order recommending that Hasan's whistleblower complaint be dismissed.¹ We have jurisdiction to decide Hasan's appeal.² The Board reviews the ALJ's findings of fact and conclusions of law de novo.³

   The ALJ's Recommended Decision and Order fairly relates the underlying facts of the dispute and the proper legal framework. Therefore, we attach and incorporate the Recommended Decision and Order. We have thoroughly examined the record and the parties' briefs.⁴ We find that the record supports the ALJ's findings of fact. Thus, because the ALJ correctly relied upon established legal precedent, we AFFIRM his conclusion that Hasan failed to state a claim upon which relief can be granted.⁵ Likewise, we AFFIRM the ALJ's decision to deny Hasan's Motion for Recusal, Motion to Disqualify Respondent's Counsel, and Motion to Compel Discovery. Accordingly, Hasan's complaint is DENIED.

   SO ORDERED.

      OLIVER M. TRANSUE
      Administrative Appeals Judge

      M. CYNTHIA DOUGLASS
      Chief Administrative Appeals Judge

¹ Hasan filed his complaint with the Secretary of Labor and alleged that Stone and Webster Engineers and Constructors, Inc. violated the employee protection provisions of the Energy Reorganization Act (ERA) when the company refused to hire him because he had previously engaged in activity protected by the ERA. The employee protection section of the ERA prohibits a covered employer from discharging or otherwise discriminating against an employee because of protected activity. See 42 U.S.C.A. § 5851 (West 1995).

² See 29 C.F.R. § 24.8 (2002). See also Secretary's Order No. 1-2002, 67 Fed. Reg. 64272 (Oct. 17, 2002) (delegating to the ARB the Secretary's authority to review cases arising under the ERA).

³ See 5 U.S.C.A. § 557(b) (West 1996); Masek v. Cadle Co., ARB No. 97-069, ALJ No. 1995-WPC-1, slip op. at 7-8 (ARB Apr. 28, 2000) and authorities there cited.

⁴ Hasan appears pro se and we have construed his briefs liberally. See Young v. Schlumberger, ARB No. 00-075, ALJ No. 2000-STA-28, slip op. at 8-9 (ARB Feb. 28, 2003). He contends that the ALJ erred in granting Stone and Webster's FRCP 12(b)(6) Motion to Dismiss because his ERA complaint does not have to allege specific facts establishing a prima facie case of discrimination. In making this argument Hasan relies upon Swierkiewicz v. Sorema, 534 U.S. 506 (2002). Like the ALJ, we reject this argument. The Swierkiewicz holding is confined to the application of FRCP 8(a)(2) to Title VII (42 U.S.C.A. § 2000e et seq.) and Age Discrimination In Employment Act (29 U.S.C.A. § 621 et seq.) cases. Furthermore, we agree with Stone and Webster that Congress expressly made the prima facie standard a pleading requirement for ERA complainants. See Brief of Respondent at 9; 42 U.S.C.A. § 5851 (b) (3) (A) ("The Secretary shall dismiss a complaint . . . unless the complainant has made a prima facie showing . . . ."). See also Trimmer v. U.S. Department of Labor, 174 F. 3d 1098, 1101(10th Cir. 1999) (explaining that Congress was concerned about stemming frivolous complaints and consequently amended § 5851 to include a gatekeeping function whereby the Secretary cannot investigate an ERA complaint unless the complainant has made a prima facie showing). Hasan's other arguments are without merit and we reject them without discussion.

⁵ See Hasan v. Wolfe Creek Nuclear Operating Corp., ARB No. 01-006, ALJ No. 2000-ERA-14 (ARB May 31, 2001), aff'd 298 F. 3d 914 (10th Cir. 2002); Hasan v. Florida Power and Light Co., ARB No. 01-004, ALJ No. 2000-ERA-12 (ARB May 17, 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).