Following the issuance of the decision in 96-ERA-2, Con Ed moved for summary judgment in this case, contending that my finding upholding the validity of the 1995 performance appraisals recommending that complainant not be rehired precluded a decision in complainant's favor. However, complainant argued that he should be permitted to prove that respondent's reliance on these performance appraisals in rejecting his application for rehire in 1997 was pretextual, and I agreed that he was entitled to that opportunity. So I denied the motion for summary decision, in an order dated April 23, 1998. Nevertheless, since I had held in 96-ERA-2 that the performance appraisals were reasonable evaluations of his performance and were not retaliatory, complainant was informed that he "will be precluded from presenting evidence to the effect that these evaluations did not accurately reflect his performance on the job ...." In other words, consistent with the doctrine of collateral estoppel, I was not going to permit 96-ERA-2 to be relitigated in 97-ERA-54. Complainant could attempt to prove that the decision to reject him for rehire in 1997 was based not on his poor performance during his previous tenure at IP2 but was due to his protected activity; however, he could not attempt to prove that his performance during his previous tenure at IP2 did not merit the poor performance evaluations he received, since that issue had been fully litigated in 96-ERA-2 and had been decided against him.    Complainant did not indicate any disagreement with this ruling. Rather, consistent with it, complainant's pre-hearing statement listed his factual contentions as follows:

Complainant contends that Con Edison's reliance on his performance evaluations in deciding to reject him for the Spring, 1997 Outage is pretextual.

Complainant contends that the four performance evaluations were not the basis for Con Edison's decision in refusing to rehire him.

under direct examination. Following adjournment, complainant again indicated his frustration with the limitations that I had imposed on his presentation of evidence, and stated that he might not return to court on Thursday morning, July 23. Nevertheless, complainant did show up on Thursday morning, and the hearing resumed. Following my ruling in his favor on a discovery matter (see infra), complainant was told to proceed with his direct examination of Margrey. But he repeatedly stated that he could not continue under the restraints imposed on his presentation of evidence, and refused several times to ask Margrey a question. Finally, I ruled that complainant had completed his direct examination of Margrey and permitted respondent to cross-examine. Shortly thereafter, complaining that I did not let him complete his questioning of Margrey, complainant packed up his briefcase and walked out of the courtroom. Respondent conducted a brief cross-examination of Margrey. I then held that complainant, by walking out of the courtroom with the obvious intention of not returning for the remainder of the hearing, had rested his case. Thereupon, respondent moved for a recommended order of dismissal, contending that complainant had not made a prima facie case. I granted the motion.

   As a final procedural note, toward the close of the hearing on Wednesday, July 22, complainant contended that, based on Margrey's testimony, it appeared that respondent had not fully complied with his pre-hearing discovery in that performance evaluations for some previous inspectors rejected for the 1997 outage had not been produced. In fact, what appears to have happened was that respondent's responses to complainant's discovery were complete when filed, i.e., the performance evaluations of all former inspectors rejected for the 1997 outage up to the date the responses to the discovery were filed were turned over. Subsequently, respondent rejected other former inspectors for the 1997 outage, and their performance evaluations were not turned over. Although it did not appear that respondent had any obligation to supplement its discovery to provide these additional documents (see 29 C.F.R. §18.16), to assure that complainant was not prejudiced I ordered respondent, at the start of the hearing on Thursday, July 23, to turn over the performance evaluations of these subsequently rejected inspectors. However, when the case was dismissed a few minutes later, this order to produce became moot, and the remaining performance evaluations do not have to be provided.

b. Discussion of the Evidence

   Complainant presented absolutely no evidence that respondent considered anything other than his past unsatisfactory performance, as reflected in the recommendations not to rehire him from his supervisors, in rejecting him for the 1997 outage at IP2. The evidence establishes that complainant submitted his resume to Spec, the contractor providing QC inspectors for the 1997 outage, and that Spec's Operations Manager, Ralph DeMiranda, informed Margrey, his contact point at Con Ed, that complainant had applied for rehire. Margrey was one of complainant's supervisors during his previous period of employment at IP2, and was therefore familiar with the complainant's performance. He was one of the QC Supervisors who rated complainant as not recommended for rehire subsequent to the 1995 outage, and he knew the

   IT IS RECOMMENDED that this case be dismissed due to complainant's failure to establish a prima facie case that he was not rehired in 1997 due to his protected activity.

       JEFFREY TURECK
       Administrative Law Judge

NOTICE: This Recommended Decision and Order will automatically become the final order of the Secretary unless, pursuant to 29 C.F.R. §24.8, a petition for review is timely filed with the Administrative Review Board, United States Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, NW, Washington, DC 20210. Such a petition for review must be received by the Administrative Review Board within ten business days of the date of this Recommended Decision and Order, and shall be served on all parties and on the Chief Administrative Law Judge. See 29 C.F.R. §§ 24.8 and 24.9, as amended by 63 Fed. Reg. 6614 (1998).