The complaint was investigated by the Secretary of Labor and found to have no merit on January 21, 2000. Complainant filed objections and requested a hearing before an Administrative Law Judge on January 28, 2000. The case was referred to the Office of Administrative Law Judges on February 01, 2000.

   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 on 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 (whistle blower 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. (Tenn.) 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 whistle blower proceeding to make a prima facie case which shows that: (1) complainant engaged in a protected activity; (2) complainant was subjected to adverse action; (3) respondent was aware of the protected activity when it took the 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. Glenn, 1998 ERA at 7. If Complainant has succeeded in establishing the foregoing, Respondent must produce evidence of a legitimate, nondiscriminatory reason for the adverse action. Frady v. Tennessee Valley Authority, 92-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, Complainant bears the burden of establishing by a preponderance of the evidence that the adverse action was in retaliation for the protected activity. Id.

   Complainant is proceeding in this matter pro se. While Complainant should not be held to the same standard as an attorney and may be held to a less stringent standard, he must nonetheless meet minimal pleading requirements. Salahuddin v. Jones, 992 F.2d 447, 449 (2d Cir. 1993), cert denied, 510 U.S. 902 (1993).

   Complainant alleges that he engaged in a protected activity by his reporting of safety concerns to the United States Nuclear Regulatory Commission. Complainant has established the first element required to establish a prima facie case of retaliation.

   The second requirement 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., 93 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 the employer continued to seek applicants from persons of complainant's qualifications. Id.

   Complainant does not allege anywhere in his complaint that he applied for, or sent his resumes in response to, a job in either company for which either employer was seeking applicants. Moreover, he does not address this issue in his February 9, 2000 Response to Respondent's [Commonwealth Edison] Motion to Dismiss, nor in his August 7, 2000 Response to Show Cause Order. In this Response to Commonwealth Edison's Motion, he rehashes issues from his prior litigation with Commonwealth Edison and alleges that his "pleadings DO meet minimal requirements," and that if "Com Ed [were] serious, they would have appointed [him] to an independent reviewer position" following his report of safety concerns. Additionally, while Complainant addresses his qualifications by stating that he is "a Civil/Structural Engineer with over twenty-three years of experience in the nuclear industry...," his qualifications are not at issue because he has not addressed specific jobs for which Respondents were actually seeking applicants. As these responses do not establish that he applied for a specific position for which the employer was seeking applicants, Complainant has not met the first element required to establish a discriminatory refusal to hire in relation to Commonwealth Edison.

   In his March 3, 2000 "Response to Respondent's [Raytheon] Motion to Dismiss AND to Stay Proceedings" and his August 7, 2000 "Response to Show Cause Order," Complainant alleges that "I DID APPLY FOR JOBS IN RESPONSE TO RAYTHEON'S ADVERTISEMENTS" and that "I still remember talking to Respondent RAYTHEON'S employees in response to advertisements, for a position as a civil/structural/Pipe Support engineer." Complainant does not, however, provide any more detail about these advertisements in terms of the specific positions open, or the qualifications sought. In support of these assertions, Complainant provides attachments of letters from Respondent thanking him for his interest in the company, but these letters do not indicate that he applied for any specific position for which Respondent was actually seeking applicants; they merely indicate that they received his

resume. Moreover, the letters are from the years 1995 and 1997, dates not addressed by Complainant in his Complaint. As such, I find that Complainant has not shown in his responses to Respondent's motion, nor in his Response to Show Cause Order, that he applied for a job for which applicants were sought; therefore, he does not meet the first element as to Raytheon.

   Since Complainant does not establish that he applied for a job for which either employer was seeking applicants, he is subsequently unable meet the second and third elements; that he was rejected despite his qualifications and that the position remained open and the employer(s) continued to seek applicants. Thus, Complainant has not alleged a prima facie case of adverse action on the part of Respondent and has failed to meet the second requirement.

   In satisfaction of the third requirement, Complainant must show that Respondents were aware of the protected activity when they took the adverse action. As such, Complainant has failed to allege the third requirement for a prima facie case of retaliation.

   The fourth requirement 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 alleged a prima facie case of adverse action, he has not met this requirement.

   After a careful review of the record, 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. 29 C.F.R. § 24.5(a)(2). In addition, Complainant's Complaint, as pled, fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6).

   In his Response to Show Cause Order, Complainant argues that dismissal is improper because he has not obtained discovery in this case. As Complainant has failed to establish even a prima facie case, his discovery requests would become nothing more than fishing expeditions. For example, although Claimant includes an attachment to his complaint specifically indicating the dates and phone numbers of the more than eighty companies to which he faxed his resume, he is unable to specify in either his complaint or in his subsequent responses, any particular job with either company for which he applied and for which either employer was seeking applicants. 

Moreover, in the absence of a prima facie showing, a court has the discretion to dismiss a claim. See generally McLaughlin v. McPhail, 707 F.2d 800, 807 (4th Cir. 1983). Therefore, I find that Complainant's argument that dismissal is improper in the absence of discovery is without merit.

   Accordingly,

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

       ROBERT J. LESNICK
       Administrative Law Judge

RJL/lab

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).