Hasan v. J.A. Jones, Inc., ARB No. 02-121, ALJ No. 2002-ERA-18 (ARB June 25, 2003)

U.S. Department of Labor

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

ARB CASE NO. 02-121
ALJ CASE NO. 2002-ERA-18
DATE: June 25, 2003

In the Matter of:

SYED M. A. HASAN,
    COMPLAINANT,

    v.

J. A. JONES, INC.; J. A. JONES
SERVICES GROUP, INC.;
LOCKWOOD GREENE
ENGINEERS, INC.; LOCKWOOD
GREENE TECHNOLOGIES, INC.; and
LOCKWOOD GREENE E&C LLC,
    RESPONDENTS.

BEFORE: THE ADMINISTRATIVE REVIEW BOARD

Appearances:

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

For the Respondents:
   Stephanie H. Burton, Esq., Gibbes Burton, LLC, Greenville, South Carolina

   On January 16, 2002 Syed M. A. Hasan applied, via email, to Lockwood Greene Engineers, Inc. (LGE) for the position of "Piping Group Leader." In the e-mail cover letter accompanying his resume, Hasan requested that the recipients not discriminate and retaliate against him "for being a Truthful and Honest Whistleblower of this Country and for filing a [previous] Whistleblower complaint against J. A. Jones, Inc., and its subsidiaries." When LGE did not hire Hasan, he filed a discrimination complaint with the U. S. Department of Labor on February 16, 2002. He alleged that the Respondents did not hire him for the piping group leader position and will not hire him for other unspecified "available jobs" because of his previous whistleblowing activity. Thus, according to Hasan, the Respondents have violated the employee protection provision of the Energy Reorganization Act. (ERA).¹ After hearing both sides present evidence, a U.S. Department of Labor Administrative Law Judge (ALJ) recommended that Hasan's complaint be dismissed.² Hasan appeals. We affirm.

   The Administrative Review Board (ARB or the Board) has jurisdiction to review the ALJ's recommended decision.³ The Board reviews the ALJ's findings of fact and conclusions of law de novo.⁴

   We summarize the ALJ's findings. He found that LGE hiring officials did not consider Hasan qualified for the piping group leader position and that his previous whistleblowing had no effect on that determination. The ALJ himself found Hasan was not qualified for the position.⁵ Therefore, since a complainant who alleges a discriminatory refusal to hire must prove that he was qualified for the position sought,⁶ and Hasan failed to do so, the ALJ concluded that Hasan's complaint should be dismissed.

   We have carefully examined the entire record herein and find that it fully supports the ALJ's findings of fact. Furthermore, his recommended decision, which we attach and incorporate, correctly applies established legal precedent in concluding that the Respondents did not violate the ERA. Hasan's arguments concerning the merits of his case are not persuasive and we reject them.⁷ Accordingly, we AFFIRM the Recommended Decision and Order and DENY the complaint.

   SO ORDERED.

      OLIVER M. TRANSUE
      Administrative Appeals Judge

      M. CYNTHIA DOUGLASS
      Chief Administrative Appeals Judge

¹ 42 U.S.C.A. § 5851 (West 1995) ("No employer may discharge any employee or otherwise discriminate against any employee with respect to his compensation, terms, conditions, or privileges of employment because the employee . . . [notifies a covered employer about an alleged violation of the ERA or the Atomic Energy Act (AEA) (42 U.S.C.A. § 2011 et seq.), refuses to engage in a practice made unlawful by the ERA or AEA, testifies regarding provisions or proposed provisions of the ERA or AEA, or commences, causes to be commenced or testifies, assists or participates in a proceeding under the ERA or AEA].")

² Recommended Decision and Order (R. D. & O.) dated September 19, 2002.

³ 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 Board the Secretary's authority to review cases arising under the ERA).

⁴ 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.

⁵ R. D. & O. at 5.

⁶ Id. citing Samodurov v. General Physics Corp., 1989-ERA-20 (Sec'y Nov. 16, 1993) and Hasan v. Florida Power and Light Co., ARB No. 01-004, ALJ No. 2000-ERA-12 (ARB May 17, 2001).

⁷ In his Initial Brief, Hasan also emphasizes and reargues his previous objections to the ALJ's orders denying his Motion to Compel, Motion to Amend Complaint, and Motion Requesting a Continuance. Complainant's Initial Brief at 4-5, 9-10, 13. Hasan appears pro se and we will construe his brief liberally. See Young v. Schlumberger, ARB No. 00-075, ALJ No. 2000-STA-28, slip op. at 8-9 (ARB Feb. 28, 2003). Therefore, we interpret Hasan's arguments as asserting that the ALJ erred, and "[w]e review allegations of procedural errors by the ALJ under the abuse of discretion standard." Cox v. Lockheed Martin, et al., ARB Case No. 99-040, ALJ No. 1997-ERA-17, slip op. at 5 (ARB March 30, 2001) citing Khandelwal v. Southern California Edison, ARB No. 98-159, ALJ No. 1997-ERA-6 (ARB Nov. 30, 2000) and Malpass v. General Elec. Co., 1985-ERA-38, slip op. at 5-6 (Sec'y March 1, 1994) (discussing ALJ's authority to conduct trial hearings under 5 U.S.C.A. § 556(c)). However, because we find nothing in this record that would support a finding that the ALJ abused his discretion in denying Hasan's motions, we reject Hasan's argument.

   Hasan has also filed a "Motion To Include New Documents That Were Not Available Earlier." This motion is identical to the one we denied today in Hasan v. J.A. Jones-Lockwood Greene, et. al ARB No. 02-123, ALJ No. 2002-ERA-5, slip op. at n.6. We therefore deny this motion for the same reasons.