U.S. Department of Labor
Office of Administrative Law Judges
1111 20th Street, N.W.
Washington, D.C. 20036
Case No. 89-ERA-36
In the Matter of
SYED M.A. HASAN
Complainant
v.
SYSTEM ENERGY RESOURCES, INC.
Respondent
Michael D. Kohn, Esquire
Steven M. Kohn, Esquire
For the Complainant
Kenneth Milam, Esquire
Nicholas S. Reynolds, Esquire
Peter Dykema, Esquire
For the Respondent
BEFORE: STUART A. LEVIN
Administrative Law Judge
RECOMMENDED DECISION AND ORDER
This proceeding arises under the Energy Reorganization Act
of 1974, as amended, 42 U.S.C. § 5851 (hereinafter referred to as
the ERA) and the regulations promulgated and published at 29 CFR
Part 24 to implement the Act. On April 11, 1989, Syed M.A. Hasan
filed a complaint with the Department of Labor alleging that he
was subjected to discrimination and improperly released from
his job by System Energy Resources, Inc., (SERI) the owner and
operator of the Grand Gulf Nuclear Station.
Following an investigation, the District Director, Employment
Standards Administration, U.S. Department of Labor, advised Mr.
Hasan that the allegations in his complaint could not be
substantiated. On June 13, 1989, Hasan requested a formal hearing
[Page 2]
which convened in Washington, D.C. on June 22, 23, and July 6,
1989.1
1Citations to the transcript of the
proceedings on June 22,
1989, shall be identified by the page number followed by an "A";
the June 23, 1989, transcript shall be identified with a "B"; and
the July 6, 1989, transcript shall be identified with a "C". The
final transcript was received and the record closed on July 11,
1989. Thereafter, Complainant's Motion for Default Judgment dated
July 6, 1989, together with Complainant's additional pleadings
filed on July 11, and July 14, 1989, and SERI's responses filed
on July 10, July 14, and July 17, 1989 were considered. Since
Complainant's Motion for Default Judgment was a potentially
dispositive pleading, it was addressed prior to, and thus
marginally delayed, the issuance of this decision on the merits.
Complainant's Motion was denied by Order issued on July 27, 1989.
2 Respondent contends that the
complaint was not timely filed. This contention is without merit. The time for filing
does not commence to run when employee engages in protected
activity but rather when the employee believes that adverse
action was taken in retaliation against him for engaging in the
protected activity. In this instance, Hasan's complaint was
dated April 11, 1989, and was received on April 24, 1989,
within 30 days of the date in early April when Hasan was
assured that his request to remain at SERI was denied, and he
believed the denial was in retaliation for his protected
activities. 29 CFR § 24.3(a).
3It may here be noted that
Complainant does not allege
that SERI, in any way, interferred with his employment relationship
with Bechtel. (Tr. 97C-105C).
4Mackowiak v. University
Nuclear Systems, Inc., 82-ERA-8
(April 29, 1983), Wells v. Kansas Gas & Electric Co., 83-ERA-12
(June 14, 1984); Richter v. Baldwin Associates, 84-ERA-9 (March 12,
1986); Willy v. The Coastal Corp., 85-CAA-1 (June 4, 1987); Poulos v.
Ambassador Fuel Oil Co., 86-CAA-1 (April 27, 1987); Smith v. Norco
Technical Services, 85-ERA-17 (October 2, 1987); Nunn v. Duke
Power Co., 84-ERA-27 (Deputy Secretary Decision, July 30, 1987);
Wilson v. Bechtel Construction, Inc., 86-ERA-34 (January 9, 1988).
The Fifth Circuit has noted the Department's position,
See, In Re Willy, 831 F.2d 545, 548 (5th Cir. 1987), and the
fact that other circuit courts have disagreed with Brown & Root.
Consolidated Edison v. Donovan, 673 F.2d 61 (2nd Cir. 1982);
Mackowiak v. University Nuclear Systems, supra; Kansas Gas &
Electric Co. v. Brock, 880 F.2d 1505, 1513 (10th Cir., 1985).
Subsequently, however, in Willy v. Coastal Corp., 855 F.2d 1160,
1169 at fn. 13 (5th Cir., 1988), the court signaled that Brown &
Root remains vital within its jurisdiction.
5It seems fairly well settled that
evidence demonstrating
the employer's awareness of the protected conduct is a required
element of the complainant's prima facie case. See, Dartey v.
Zack Company of Chicago, supra; and Sherrod v. AAA Tire & Wheel,
supra. See, Lopez v. West Texas Utilities, 86-ERA-25 (July 26,
1988. In Francis v. Bogen, Inc., 86-ERA-8 (April 1, 1988),
however, the Secretary noted that "It is unnecessary to decide
whether such knowledge is required to establish a violation of
the ERA..." In Francis, internal complaints to the employer
were sufficient to establish the required "knowledge". The
need to establish awareness of the external protected activity
was the issue left undecided in Francis.
In a Fifth Circuit case in which the employer had no
knowledge of the external complaints, the "internal complaints"
notice theory relied upon in Francis might conflict with Brown
and Root. There is no conflict in this instance, however,
since the employer, as noted above, was aware of at least a
portion of Hasan's protected activity if not the full scope of
his NRC contact.
6As noted previously, the
Department of Labor has
consistently held that such internal communications constitute
protected activity, and, for purposes of this discussion, I have
considered them as such, alone, and in the context of whether such
communications may fit into a pattern of circumstantial evidence
indicative of a retaliatory action or motive. Accordingly,
whether Brown and Root, supra or the Department's decision in
Willy, supra, is applied, the outcome here does not change.
7In the Findings Of Fact, it is
observed that there is
no evidence that SERI was aware of this letter or others Hasan
addressed to the Chairman. They are mentioned in this discussion
to place them in a chronological context.
8To the extent that any of Hasan's
co-workers may have
resented him or expressed animus toward him, I find no indication
that SERI management either shared such views of Hasan or
retaliated against him in anyway.
9Complainant relies on Priest
v. Baldwin Associates,
84-ERA-30, (June 11, 1986), in support of his contention that
the mere release of a worker engaged in protected activity is
alone sufficient to establish the adverse action. Priest,
however, is distinguishable from the situation here in that
Priest appears to have been a permanent Baldwin employee, not a
temporary employee on specific assignment with a previously
established release date. It should also be noted that in
Priest, the employee not only was subjected to disparate treatment,
the Secretary specifically concluded that the alleged
reason for the employee's termination was mere pretext.