Hasan v. J.A. Jones, Inc., ARB No. 02-123, ALJ No. 2002-ERA-5 (ARB June 25, 2003)

U.S. Department of Labor

Administrative Review Board 200 Constitution Avenue, N.W. Washington, D.C. 20210

ARB CASE NO. 02-123
ALJ CASE NO. 2002-ERA-5
DATE: June 25, 2003

In the Matter of:

SYED M. A. HASAN,
    COMPLAINANT,

    v.

J. A. JONES, INC.; J. A. JONES
SERVICES GROUP; LOCKWOOD
GREEN TECHNOLOGIES; and
LOCKWOOD GREENE ENGINEERING
CONSTRUCTION,
    RESPONDENTS.

BEFORE: THE ADMINISTRATIVE REVIEW BOARD

Appearances:

For the Complainant:
    Syed M.A. Hasan, pro se, Madison, Alabama

For the Respondents:
    Barbara G. Haynie, Esq., Kingsmill Riess, L.L.C., New Orleans, Louisiana

   Lockwood Greene Technologies (LGT) hired Syed M. A. Hasan as a lead designer at its Huntsville, Alabama, office in April 2000. LGT terminated Hasan in August 2001, a result of a company-wide reduction in force. Hasan then filed a complaint with the U. S. Department of Labor alleging that LGT, as well as the other Respondents named herein, retaliated against him because of his previous whistleblower activities. Specifically, he asserts that the Respondents violated the employee protection provision of the Energy Reorganization Act¹ (ERA) when they laid him off, refused to promote him, refused to increase his salary, and did not transfer or rehire him. A U. S. Department of Labor Administrative Law Judge (ALJ) heard the evidence and recommended that Hasan's complaint be dismissed.² Hasan appeals. We affirm.

   The Administrative Review Board (ARB or the Board) has jurisdiction to review the ALJ's recommended decision.³ The Board reviews the ALJ's findings of fact and conclusions of law de novo.⁴

   We summarize the ALJ's findings. He found that LGT decision makers were not aware of Hasan's previous whistleblowing activities when they decided not to promote him. Moreover, he found that Hasan had produced no evidence that his whistleblowing had motivated the Respondents to take the other adverse actions, i.e. failing to increase his salary, laying him off, and refusing to transfer or rehire him.⁵ Therefore, he concluded that Hasan's complaint should be dismissed.

   We have carefully examined the entire record herein and find that it fully supports the ALJ's findings of fact. Furthermore, his recommended decision, which we attach and incorporate, correctly applies established legal precedent in concluding that the Respondents did not violate the ERA. We find no merit in Hasan's arguments to this Board.⁶ Therefore, we AFFIRM the Recommended Decision and Order and DENY the complaint.⁷

   SO ORDERED.

      OLIVER M. TRANSUE
      Administrative Appeals Judge

      M. CYNTHIA DOUGLASS
      Chief Administrative Appeals Judge

¹ 42 U.S.C.A. § 5851 (West 1995) ("No employer may discharge any employee or otherwise discriminate against any employee with respect to his compensation, terms, conditions, or privileges of employment because the employee . . . [notifies a covered employer about an alleged violation of the ERA or the Atomic Energy Act (AEA) (42 U.S.C.A. § 2011 et seq.), refuses to engage in a practice made unlawful by the ERA or AEA, testifies regarding provisions or proposed provisions of the ERA or AEA, or commences, causes to be commenced or testifies, assists or participates in a proceeding under the ERA or AEA]."

² Recommended Decision and Order (R. D. & O.) dated September 17, 2002.

³ See 29 C.F.R. § 24.8 (2002). See also Secretary's Order No. 1-2002, 67 Fed. Reg. 64272 (Oct. 17, 2002) (delegating to the Board the Secretary's authority to review cases arising under the ERA).

⁴ See 5 U.S.C.A. § 557(b); Masek v. Cadle Co., ARB No. 97-069, ALJ No. 1995-WPC-1, slip op. at 7-8 (ARB Apr. 28, 2000) and authorities there cited.

⁵ R. D. & O. at 9-11.

⁶ Hasan appears pro se and though we construe his brief liberally, he nevertheless must prove his claim of discrimination. See Young v. Schlumberger, ARB No. 00-075, ALJ No. 2000-STA-28, slip op. at 8-9 (ARB Feb. 28, 2003). Hasan also filed with the Board a "Motion To Include New Documents That Were Not Available Earlier." He asks that the Board include in the record an Order Granting Motion to Compel Discovery and an Order Denying Motion for Summary Judgment that ALJ Richard Mills issued in the unrelated case of Hasan v. J. A. Jones, Inc., and its subsidiaries J. A. Jones Construction Company; J. A. Jones Services Group; and Lockwood Greene Engineers, et. al, ALJ. No. 2003-ERA-7. This motion is more properly designated as a Motion to Reopen the Record, and in considering it, the Board relies upon the standard found in the Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges. 29 C.F.R. Part 18. See 29 C.F.R. § 18.54(c) ("Once the record is closed, no additional evidence shall be accepted into the record except upon a showing that new and material evidence has become available which was not readily available prior to the closing of the record."). We have examined ALJ Mills' orders and find they are not materially relevant to this case. Therefore, Hasan's motion is denied. See Foley v. Boston Edison Company, ARB No. 99-022, ALJ No. 1997-ERA-56, slip op. at 2 (ARB Feb. 2, 1999).

⁷ LGT and its attorney, individually, filed a Motion to Strike on or about June 10, 2003. They assert that certain portions of Hasan's "Response to Respondent's Reply of June 2, 2003" are irrelevant, reckless, baseless, and scandalous. We agree, and because we have recently put Hasan on notice that we will not tolerate vitriolic personal attacks, we grant the Motion to Strike. See Order Holding Motion to Strike Complainant's Motion in Abeyance and To Show Cause, Hasan v. Sargent & Lundy, ARB No. 03-078, ALJ No. 2002-ERA-32, slip op. at 2-3 (ARB March 28, 2003).