The Department of Labor's Occupational Safety and Health Administration investigated Hasan's complaint and found it lacked merit. Hasan requested a formal hearing. Prior to the hearing, the Administrative Law Judge determined, sua sponte, that Hasan had failed to establish the elements of his prima facie case because he had failed to submit evidence that demonstrated that any employee with responsibility for, or having input in, the Respondent's hiring practices had any knowledge of Hasan's protected activity. The ALJ issued a Recommended Decision and Order Dismissing the Claim. Hasan appealed to the Administrative Review Board.

    Upon review the Board determined that the Respondent had conceded, in its response to Hasan's interrogatories, that an individual familiar with Hasan's safety concerns had participated in the decision not to hire him. The Board therefore remanded the case to the ALJ. Hasan v. Sargent and Lundy, ARB No. 01-001, ALJ No. 2000-ERA-7, slip op. at 4 (ARB Apr. 30, 2001).

    After conducting a hearing, the ALJ recommended that Hasan's complaint be dismissed because he had not sustained his burden of proving that the Respondent failed to hire him because of his protected activity. Hasan appealed the ALJ's December 5, 2002 Recommended Decision and Order to this Board.

    The Board has jurisdiction to review the ALJ's recommended decision pursuant to 29 C.F.R. § 24.8 (2003) and Secretary's Order No. 1-2002, 67 Fed. Reg. 64272 (Oct. 17, 2002) (delegating to the Board the Secretary's authority to review cases under the statutes listed in 29 C.F.R. § 24.1(a), among which is the ERA).

    Under the Administrative Procedure Act, the Board, as the designee of the Secretary, acts with all the powers the Secretary would possess in rendering a decision under the whistleblower statutes. See 5 U.S.C.A. § 557(b) (West 1996). The Board engages in de novo review of the ALJ's recommended decision. See Kester v. Carolina Power and Light Co., ARB No. 02-007, ALJ No. 00-ERA-31, slip op. at 4 (ARB Sept. 30, 2003).

   To prevail under the ERA, a complainant must prove by a preponderance of the evidence that he was an employee who engaged in protected activity, that the employer knew about this activity and took adverse action against him, and that his protected activity was a contributing factor in the adverse action the employer took. 42 U.S.C.A. § 5851(b)(3)(C); Kester, slip op. at 5-8; Paynes v. Gulf States Utilities, ARB No. 98-045, ALJ No. 93-ERA-47, slip op. at 4-5 (ARB Aug. 31, 1999). However, "[r]elief may not be ordered . . . 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 [i.e., the protected activity]." 42 U.S.C.A. § 5851(b)(3)(D); Kester, slip op. at 7. Where a complainant alleges that the adverse action was the

prospective employer's refusal to hire him, the complainant must also establish:

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.

Samodurov v. Gen. Physics Corp., Case No. 89-ERA-20, slip op. at 9-10 (Sec'y Nov. 16, 1993) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)).