DATE: December 9, 1994
CASE NO. 93-ERA-0040
IN THE MATTER OF
SYED HASAN,
COMPLAINANT,
v.
BECHTEL CORPORATION,
RESPONDENT.
Appearances:
Stephen Kohn, Esq.
For the Complainant
Richard K. Walker, Esq.
For the Respondent Bechtel
Power Corporation and
Bechtel Corporation
Before: PAUL H. TEITLER
Administrative Law Judge
RECOMMENDED DECISION AND ORDER
APPROVING SETTLEMENT
This is a proceeding under the Energy Reorganization Act of 1974, as amended
("ERA"), set forth in 42 U.S.C §5851 and its implementing Regulations at 29
C.F.R. 24, etseq. The Claimant, Syed M.A. Hasan, commenced
three actions (Case Nos. 94-ERA-21, 93-ERA-22, and 93-ERA-40 under Section
210/211 of the Energy Reorganization Act against Bechtel Corporation, and Bechtel
Power Corporation, individually and collectively as "Bechtel". the undersigned was
assigned case 93-ERA-40. The case was scheduled for trial on May 2, 1994.
Preliminary Investigation and Decision
Mr. Hasan was notified by letter on June 22, 1993 by Kenneth Gilbert, District
Director that:
[PAGE 2]
This letter is to notify you of the results of our actions in
the above case. In a previous letter from this office, you
were advised that your complaint was received on May 17,
1993. We enclosed copies of Regulations, 29 CFR Part 24
and the pertinent section of the Energy Reorganization Act
with the letter.
As you are aware the Energy Reorganization Act was
amended effective October 24, 1992 and the new amendments
contained, among other changes, procedural changes in how
the Department of Labor responds to and proceeds on
Whistleblower complaints. Under the new amendments to the
Act discussed above, Section 211 (3)(A), states:
`The Secretary shall dismiss a complaint filed under
paragraph (1), and shall not conduct the investigation
required under paragraph (2), unless the complainant has
made a prima facie showing that any behavior described in
subparagraphs (A) through (F) of subsection (a)(1) was a
contributing factor in the unfavorable personnel action
alleged in the complaint.'
Section 211 (3)(B) states:
`Notwithstanding a finding by the Secretary that the
complainant has made the showing required by subparagraph
(A), no investigation required under paragraph (2) shall be
conducted if the employer demonstrates, by clear and
convincing evidence, that it would have taken the same
unfavorable personnel action in the absence of such
behavior.'
Mr. Gilbert stated that their investigation revealed:
In conducting our inquiries into the allegations raised in your
April 13, 1993, complaint we determined from the information
contained
in your original complaint filed on May 17, 1993, by your
attorney, Michael D. Kohn with this office that you did, in
fact, establish a prima facie case of discrimination against
you by the Bechtel Power Corporation concerning work you
performed at their project site at the Browns Ferry
Nuclear Power Station located near Athens, Alabama.
However, this merely met the first requirement discussed
[PAGE 3]
above and we next offered the respondent,
Bechtel Power Corporation, an opportunity to demonstrate
that the dismissal action taken against you would have been
taken in absence of any `protected activity'. On June 16,
1993, Mr. Donn C. Meindertsma, Counsel for Bechtel, faxed
us the firm's response to your complaint along with
numerous supporting documents and affidavits. The firm
indicated they ranked all employees in the engineering
department at Browns Ferry Nuclear Plant based on
experience, relevant technical knowledge, flexibility and
teamwork. You were ranked in position 52 out of 103 pipe
support engineers in this ranking process. You were ranked
highly in experience, knowledge and flexibility and received
a lower ranking in productivity and teamwork. The firm
indicated the ranking system used to determine which
employees were laid off was also used in recalling
employees to the job at Browns Ferry. They indicated that
those engineers recalled prior to you were ranked higher
with one exception. The engineer recalled with a lower
ranking than you was badged for unescorted access in the
plant, had worked in the small bore pipe group, and was
experienced in doing `walkdowns' at the site and thus was
more qualified to perform the tasks at hand. The firm
indicated that the performance review in question has not
been finalized and even in
its non-final form is not a downgraded evaluation. The
firm feels the review in question is a fair and balanced
review in that you were rated at `meets requirements' or
`exceeds requirements' in every category. The firm did
acknowledge that the review showed some areas where the
firm wanted to work with you to improve your performance,
but that this is done for all employees as a normal part of
the review process. The firm indicated you worked
out of the Houston regional office as a grade 25 senior
engineer and were ranked within this group. The firm
indicated the 1993 Houston salary plan was dated December
16, 1992, at which time you were not working and no action
was expected to be taken with regard to salary adjustments
for you at that time. They indicated after an absence of
only seven weeks you were recalled to Browns Ferry and
a salary adjustment was then considered for you and
effective March 29, 1993, you were given an appropriate
salary adjustment of 5.6%. The firm shows that your
salary is significantly higher than the average for grade
[PAGE 4]
25 pipe support engineers in the Houston office. The firm has also denied that they
downgraded your force ranking or that your ranking has directly harmed your ability
to obtain additional job offers from Bechtel Power. The firm indicates there were no
openings at other
Bechtel nuclear projects during the period in question in
that no assignments were being made at two project sites and
the firm was actually releasing pipe support engineers
from a third project. The firm indicates you are ranked
19th (tied with three others) out of 27 grade 25 pipe
support engineers and nothing about this ranking suggests
that it is discriminatory in any sense.
Mr. Gilbert concluded:
It is felt that Bechtel Corporation has demonstrated by
clear and convincing evidence that the allegations raised by
your May 17, 1993 complaint concerned actions that would
have been taken absent
any protected activity on your
part. This letter is to inform
you that we will not proceed with
an investigation of your
complaint in that Bechtel Power
met their obligation under Section
211 (3)(B) of the Energy
Reorganization Act.
Mr. Hasan was advised that:
This letter is notification to you that, if you wish to
appeal the above findings, you have a right to a formal
hearing on the record. To exercise this right you must, within
five (5) calendar days of receipt of this letter, file your
request for a hearing by telegram to:
The Chief Administrative Law Judge
U.S. Department of Labor
800 K Street, NW, Suite 400
Techworld Building
Washington, D.C. 20001-8002
Unless a telegram is received by the Chief Administrative
Law Judge within the five-day period, this notice of
determination will become the Final Order of the Secretary
of Labor dismissing your complaint. By copy of this
[PAGE 5]
letter, Bechtel Power Corporation, is being advised of the determination in this case
and the right to a hearing. A copy of this letter has also been sent to the Chief
Administrative Law Judge with your complaint. If you decide to request a hearing, it
will be necessary for you to send copies of the telegram to Bechtel Power
Corporation and to me at 2015 Second Avenue North, Berry Building, Suite 301,
Birmingham, AL. 35203, Telephone 204/731-1305. After I receive the copy of
your request, appropriate preparations for the hearing can
be made. If you have any questions, do not hesitate to call
me.
It should be made clear to all parties that the U.S.
Department of Labor does not represent any of the parties
in a hearing. The hearing is an adversarial proceeding in
which the parties will be allowed an opportunity to present
their evidence for the record. The Administrative Law
Judge who conducts the hearing will issue a recommended
decision to the Secretary based on the evidence,testimony,
and arguments presented by the parties at the hearing. The
Final Order of the Secretary will then be issued after
consideration of the Administrative Law Judge's
recommended decision and the record developed at the
hearing and will either provide for appropriate relief or
dismiss the complaint.
Mr. Hasan timely filed an appeal of Mr. Gilbert's decision. On May 2, 1994,
Mr. Hasan appeared in Decatur, Alabama, prose. He
testified in great detail relative to his allegations. On May 3, 1994, the parties
decided that with the aid of the Court preliminary discussions would be held to explore
the possibilities of settlement of his three claims, supra, against Bechtel.
On May 4, 1994 at 2:10 p.m., Mr. Hasan and Bechtel entered into an oral and written
settlement. The parties requested time to formalize their agreement which would be
marked JX 1 and be incorporated into the Recommended Decision and Order Approving
Settlement. On December 6, 1994 a detailed settlement agreement signed by the
Complainant and all counsel (designated as Joint Exhibit 1) was presented to the
undersigned and the parties have requested that the attached settlement agreement be
approved as follows:
I participated with the parties in their settlement discussions on May 2 and
May, 3, 1994. Further Mr. Hasan sought and obtained the advice of Stephen M. Kohn,
Esquire relative to the settlement. Mr. Hasan and his wife testified in open Court
that Mr. Hasan had accepted the settlement, that it was arrived at without any
duress, and after careful consideration of the issues. Thereafter, the parties
executed JX 1 on December 6, 1994 and requested that I issue a Recommended Decision and
Order approving the settlement. I have carefully considered the facts involved in
this case, the settlement agreement JX 1, and the difficult legal and factual questions
in dispute, as well as the criteria set forth in 42 U.S.C §5851 and its
implementing Regulations at 29 C.F.R. 24, etseq. Upon careful
evaluation of same, I conclude that
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the settlement is fair and in the best interest of the Complainant. Moreover, I find
that the Settlement was arrived at without duress, and only after full exploration
by the parties of all issues in dispute and the difficult legal and factual questions
involved. Accordingly, I find that the settlement is fair, reasonable and adequate.
Pursuant to 42 U.S.C. § 5851 (2)(A) of the Energy Reorganization Act, as
amended, I "RECOMMEND" that the Secretary of Labor
approve the settlement.
_________________________
PAUL H. TEITLER
Administrative Law Judge
Dated:
PHT:abr
