The Complainant subsequently appealed the RD&O to the Administrative Review Board ("the Board"), asserting, in part, that the RD&O was issued in error because the Respondent had filed for bankruptcy. Mr. Hasan argued that the bankruptcy filing automatically stayed all proceedings against the company. The Board agreed, citing 11 U.S.C. § 362(a)(1). The Board noted that "[a]lthough the stay by its statutory terms operates against ‘the commencement or continuation' of administrative proceedings, we have held that the automatic stay provisions of §362 also apply to the dismissal of the case." Hasan v. Stone & Webster Engineers and Constructors, Inc., 2000-ERA-10 (ARB May 30, 2001)(citing Haubold v. KTL Trucking Co., 2000-ERA-35, slip op. at 3-4 (ARB Aug. 10, 2000)).

   Accordingly, the Board determined the RD&O to be null and void by operation of law due to the stay required by the bankruptcy claim. They noted that the case was thus still pending before this Court until the bankruptcy case was closed, dismissed, discharge was granted or denied, or the stay lifted by the bankruptcy court.

   On September 25, 2002, U.S. Bankruptcy Judge Peter J. Walsh issued an Order modifying the automatic stay, in order to allow the administrative action to proceed and permit the Complainant to pursue the claims asserted and remedies sought by him in the above-captioned matter. See Order of Bankruptcy Judge, U.S. Bankruptcy Case No: 00-2142 (Sept. 25, 2002). On October 2, 2002, Mr. Hasan filed a Motion for Relief, asking this Court to proceed with this case in light of Judge Walsh's Order. By letter dated December 9, 2002, the Complainant also filed a Motion for Recusal with the Chief Administrative Law Judge.

   The Respondent filed the Debtor's Answering Brief in Opposition to the Complainant's Motion for Relief and Motion for Recusal on December 30, 2002. First, the Respondent argued that this action was without merit, and that this Court properly dismissed the claim previously for a failure to state a claim upon which relief could be granted, because the Complainant had failed to satisfy all of the necessary elements for a prima facie case. Additionally, the Respondent asserted that, under the Administrative Procedures Act, a violation of a judge's standard of impartiality occurs "only where an individual actually participates in a single case as both a prosecutor and an adjudicator." Debtor's Answering Brief, at 8(citing Greenberg v. Board of Governors, 968 F.2d 164, 167 (2d Cir. 1992)). According to the Respondent, the Claimant had not alleged that this Court engaged in any prosecutorial functions; rather the basis for the recusal request is the previous dismissal of this claim. The Respondents, citing Keating v. Office of Thrift Supervision, 45 F.3d 322, 327 (9th Cir. 1995), further noted that a motion for recusal must be filed before an ALJ renders a decision, so that a party cannot wait for the case's outcome before alleging bias by a judge.

   The Complainant filed his response and several motions by facsimile on December 30, 2002. Submitted at that time were the Complainant's: (1) Response to Respondent's Submittal dated December 23, 2002; (2) Motion for the Disqualification of the Law Firm Representing the Respondent; and (3) Motion for Default Judgment Against the Respondent. Mr. Hasan stated that because the Respondent had failed to address all of the issued raised in his prior pleadings, this Court should rule in his favor. He further argued that the Respondent's counsel intentionally submitted false affidavits and pleadings to this Court, and thus, should be disqualified from further participation in this case.

   Any employer who "intimidates, threatens, restrains, coerces, blacklists, discharges, or in any other manner discriminates against any employee because the employee has: (1) Commenced or caused to be commenced...a proceeding under one of the Federal statutes listed in § 24.1(a)..." is deemed to have violated the federal law and regulations in Part 24. 29 C.F.R. § 24.2(b).

   Neither 29 C.F.R. Part 24 (whistleblower proceedings) nor 29 C.F.R. Part 18 (procedures for administrative law judge hearings) address dismissal for failure to state a claim; therefore, the standards set out in the Federal Rules of Civil Procedure are applicable. Glenn v. Lockheed, 1998- ERA-35 and -50 (ALJ July 15, 1999). Under Federal Rule of Civil Procedure 12(b)(6), dismissal may be appropriate when the facts in the case fail to state a claim. Id. In considering whether a dismissal is appropriate, the facts alleged in the complaint are taken as true, and all reasonable inferences are made in favor of the non-moving party. If the factual allegations, after having been accepted as true and construed most favorably on behalf of the non-moving party, present a cognizable claim if proved by a preponderance of the evidence, dismissal is not proper. Jones v. City of Lakeland, Tennessee, 175 F.3d 410 (6th Cir. 1999). However, failure to allege a prima facie case is grounds for immediate dismissal. See Lovermi v. Bell South Mobility, Inc., 962 F. Supp. 136, 139 (S.D. Fla. 1997); Briggs v. Sterner, 529 F. Supp. 1155, 1164 (S.D. Iowa 1981).

   Complainant has the initial burden of proof in an environmental whistleblower proceeding to make a prima facie case which shows that: (1) complainant engaged in a protected activity; (2) respondent knew or was aware that the employee engaged in protected activity; (3) complainant was subjected to adverse action; and, (4) the evidence is sufficient to raise a reasonable inference that the protected activity was the likely reason for the adverse action. 29 C.F.R. § 24.5(b)(2); see also Glenn, 1998-ERA at 7. If Complainant succeeds in establishing the foregoing, Respondent must produce evidence of a legitimate, nondiscriminatory reason for the adverse action. Frady v. Tennessee Valley Authority, 1992-ERA-19 (Sec'y Oct. 23, 1995). The complainant bears the ultimate burden of persuasion that respondent's reasons are not the true reasons for the adverse action, but a pretext for discrimination. Id. At all times, the complainant bears the burden of establishing, by a preponderance of the evidence, that the adverse action was in retaliation for the protected activity. Id.

   Mr. Hasan alleged that he engaged in protected activity by his reporting of safety concerns to the United States Nuclear Regulatory Commission. Thus, Complainant has established the first element required for a prima facie case of retaliation.

   In satisfaction of the second element, Complainant alleged that he was not hired by Respondent in retaliation for engaging in a protected activity. To meet the requirement for this element, Complainant must show that one or more employees of Stone and Webster who had substantial input in the hiring decision had knowledge of the protected activity during the relevant time period. Id. at 6-7; Floyd v. Arizona Public Service Co., 1990-ERA-39, 5 (Sec'y Sept. 23, 1994). Complainant did not allege this. In his complaint, he alleged only that "[b]ased on my prior whistle blowing activities protected under ERA, STONE & WEBSTER ENGINEERS AND CONSTRUCTORS, Inc....[is] depriving me of my livelihood, FOR REFUSING TO REHIRE ME, IN RETALIATION for reporting the safety concerns to the United States Nuclear Regulatory Commission (NRC)...." Complainant, in his February 22, 2000 Response to Respondent's Motion to Dismiss, stated that counsel for Respondent had been representing Respondent in ERA cases "for years" and that Complainant had filed other complaints against Stone and Webster ( e.g., 1986-ERA-24) under the ERA. Further, he stated that Vincent J. Dunn, Manager of Employee Relations of Stone and Webster "has to be aware of my prior protected activities." In addition, Complainant noted that his name is on the Internet at the Office of Administrative Law Judges web site as suing companies for ERA violations.

   The third element for a prima facie case of retaliation requires adverse action on the part of the respondent. When determining whether a complainant has established an actionable adverse action in a failure to hire case, the framework of a prima facie case outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973) applies. Webb v. Carolina Power & Light Co., 1993-ERA-42, 12 (ALJ July 24, 1996), aff'd, (ARB August 26, 1997). In order to establish a prima facie case of discriminatory refusal to hire, the complainant must show: (1) that he applied and was qualified for a job for which the employer was seeking applicants; (2) that, despite his qualifications, he was rejected; and (3) that, after his rejection, the position remained open and that employer continued to seek applicants from persons of complainant's qualifications. Id.

   In both his complaint and in his February 22, 2000 Response to Respondent's Motion to Dismiss, Complainant alleged that he mailed his resume to Respondent on November 17, 1999, in response to an Internet advertisement for an "Engineer 2" position. Complainant thus alleged the first requirement to establish a prima facie case of discriminatory refusal to hire. Complainant likewise alleged the second requirement, that he was not hired by Respondent. However, Complainant failed to allege the third requirement, that the position remained open and Respondent continued to seek applicants of Complainant's qualifications. In fact, in his Response to Respondent's Motion to Dismiss, Complainant speculated that "the respondent intentionally closed the position to deprive me of my livelihood," thereby acknowledging that the position did not remain open. Accordingly, Complainant has not alleged a prima facie case of discriminatory refusal to hire, and thus, has failed to establish the adverse action element.

   The fourth element to allege a prima facie case of retaliation by Complainant is that there is sufficient evidence to raise a reasonable inference that the protected activity was the likely reason for the adverse action. Because Complainant has not made a prima facie showing of adverse action, he has not met this requirement.

   Despite the failure to make a prima facie case of discrimination, Mr. Hasan, relying on the Supreme Court decision in Swierkiewicz v. Sorema N.A., argued that his case should not be dismissed. See, e.g., Complainant's Response to Respondent's Submittal of January 13, 2003. In Swierkiewicz, the Petitioner, a native of Hungary, was originally employed as a senior vice president and chief underwriting officer with the Respondent, a reinsurance company controlled by a French parent corporation. Swierkiewicz v. Sorema N.A., 534 U.S. ____ (2002). After nearly six years, Petitioner was demoted, and ultimately fired after protesting several decisions by the company's management, including hiring a younger, less experienced French national to replace the Petitioner. (Id. at ____). Petitioner filed a lawsuit claiming that he had been terminated due to his national origin, a violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), and due to his age, a violation of the Age Discrimination in Employment Act of 1967 ("ADEA"). (Id. at ____).

   The Supreme Court noted that ordinary rules for assessing the sufficiency of a complaint applied; thus, under the federal standard of notice pleading, it was "not appropriate to require a plaintiff to plead facts establishing a prima facie case because the McDonnell Douglas framework does not apply in every employment discrimination case." (Id. at ____). The Court held that an employment discrimination plaintiff was not required to plead a prima facie case of discrimination and that the complaint was sufficient to survive a motion to dismiss. (Id. at ____). The Petitioner alleged he had been terminated due to his national origin in violation of Title VII, and due to his age in violation of the ADEA. According to the Court, the Respondent had fair notice of the basis of the Petitioner's claims, thus the pleading requirements of Federal Rule 8(a) were satisfied. (Id. at ____).

In the instant matter, the Complainant's requests for discovery would not yield information that would have assisted him in proving his prima facie case. Therefore, even had the Respondent provided the requested information, the Complainant still would have been unable to make a prima facie showing of discrimination.

   Having thoroughly reviewed the entire record again, I find that the Complainant has failed to set forth a prima facie case of proscribed behavior, or provide a full statement of the acts and omissions, with pertinent dates, which are believed to constitute a violation. In addition, Complainant's complaint, as pleaded, has failed to state a claim upon which relief can be granted. Accordingly,

   It is ORDERED that the Complaint of Syed M A. Hasan be, and is hereby, dismissed.

      ROBERT J. LESNICK
      Administrative Law Judge

RJL/SR/dmr

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).