The complaint was investigated and found to have no merit by the Secretary of Labor on February 17, 2000. Complainant filed objections and requested a hearing before an Administrative Law Judge on February 23, 2000. The case was referred to the Office of Administrative Law Judges on February 28, 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, therfore, 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 succeed 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 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 that employer continued to seek applicants from persons of complainant's qualifications. Id.

   Complainant alleged in his March 15, 2000 Response to Respondent's Motion to Dismiss that he mailed his resume to Respondent in December, 1994, June 1999, and November 1999, in response to an Internet advertisement for a civil/structural engineer position. Complainant does allege the first element required to establish a prima facie case of discriminatory refusal to hire. Complainant further alleges the second element, that he was not hired by Respondent. However, Complainant does not allege the third element, that the position remained open and Respondent continued to seek applicants of Complainant's qualifications. As such, 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 alleges that he was not hired by Respondent in retaliation for engaging in a protected activity. To satisfy the third element, Complainant must show that one or more employees of Wolf Creek Nuclear Operating Corporation 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., 90-ERA-39, 5 (Sec'y Sept. 23, 1994). Complainant does not allege this. In his November 18, 1999, complaint he alleged only that "[b]ased on my prior whistle blowing activities protected under ERA, WOLF CREEK NUCLEAR OPERATING COROPORATION is depriving me of my livelihood, FOR REFUSING TO HIRE ME, IN RETALIATION for reporting the safety concerns to the United States Nuclear Regulatory Commission (NRC)...." Complainant, in his May 23 , 2000 Response to Respondent's Motion to Dismiss, states that counsel for Respondent, Mr. Hickey, has been representing Respondent and several other companies in ERA cases "for years" and that Complainant had filed other complaints against employers under the ERA.

   Complainant further states that an engineer, "H", who is currently employed by Respondent, worked with Complainant at the Comanche Peak Nuclear Power Plant and "has to be aware" of his whistle blowing activities at Comanche Peak. In addition, Complainant states that his name was in the newspapers and is on the internet at the Office of Administrative Law Judges web site as suing companies for ERA violations.

   Complainant's statements, taken as true, do not amount to a prima facie case that Respondent had knowledge of Complainant's protected activity. Complainant does not allege that any employee responsible for, or having input in, the hiring practices of Respondent had any knowledge of his protected activity. The only people Complainant alleges to have knowledge of his protected activity is counsel for Respondent and "H", but he does not allege that either of these persons had any input in the hiring decisions of Respondent. 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 or that Respondent had knowledge of the protected activity, 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).

   Complainant's allegation of a discriminatory refusal to hire based on his December, 1994, application is time-barred. Under the ERA, Complainant must file a complaint within 180 days of the alleged violation. 42 U.S.C. § 5851 (b)(1). Complainant did not file the instant complaint until November 18, 1999. The statute of limitations bars this claim.

Accordingly,

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

       ROBERT J. LESNICK
       Administrative Law Judge

RJL/lb

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).