Hasan v. Sargent & Lundy, ARB No. 03-078, ALJ No. 2002-ERA-32 (ARB Aug. 24, 2004)

U.S. Department of Labor

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

ARB CASE NO. 03-078
ALJ CASE NO. 2002-ERA-32
DATE: August 24, 2004

In the Matter of:

SYED M. A. HASAN,
   COMPLAINANT,

    v.

SARGENT & LUNDY,
    RESPONDENT.

BEFORE: THE ADMINISTRATIVE REVIEW BOARD

Appearances:

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

For the Respondent:
   Harry Sangerman, Esq., Sangerman & Gilfillan, Chicago, Illinois

   This case arises under the whistleblower protection provision of the Energy Reorganization Act (ERA), 42 U.S.C.A. § 5851(b) (West 2004). The Complainant, Syed M. A. Hasan, filed a complaint with the Department of Labor's Occupational Safety and Health Administration (OSHA) alleging that the Respondent, Sargent & Lundy, refused to hire him in retaliation for raising safety concerns. OSHA investigated Hasan's complaint and rejected it. Hasan then requested a formal hearing before an Administrative Law Judge (ALJ)). This case was assigned to ALJ Joseph Kane, and was designated, Case No. 2002-ERA-32 (Hasan II).¹

   On August 26, 2002, the Respondent moved to dismiss Hasan II, or in the alternative, to hold the case in abeyance until the resolution of Hasan I. Judge. Kane granted the Respondent's motion and placed Hasan II in abeyance until resolution of Hasan I "to facilitate an easier timetable for the parties and to potentially avoid duplicative litigation." Hasan v. Sargent & Lundy, ALJ No. 2002-ERA-0032, slip op. at 1 (ALJ Jan. 8, 2003).²

   On December 5, 2002, Judge Lesnick issued a Recommended Decision and Order (R. D. & O.) dismissing Hasan I. Hasan appealed the dismissal to the Administrative Review Board. He then requested that ALJ Kane establish discovery guidelines and schedule a formal hearing in Hasan II. The Respondent renewed its motion to dismiss Hasan II. Judge Kane issued a second Order Holding the Case in Abeyance "until a final decision and order is issued by the Secretary of Labor [in Hasan I].". Hasan v. Sargent & Lundy, No. 2002-ERA-32, slip op. at 2 (Jan. 8, 2003).³

   In response to ALJ Kane's Order Holding the Case in Abeyance, Hasan filed an "Emergency Motion" requesting the Board to vacate this Order. Sargent & Lundy filed a response to the Emergency Motion, opposing the motion and requesting the Board to strike the motion, and Hasan filed a reply to Sargent & Lundy's response.

   On March 28, 2003, the Board issued an Order Holding Motion to Strike Complainant's Motion in Abeyance and to Show Cause. Hasan v. Sargent & Lundy, ARB No. 03-078, ALJ No. 02-ERA-32 (Mar. 28, 2003). The Board noted that Hasan's appeal appeared to be interlocutory in nature because the ALJ's January 8, 2003 order (in Hasan I) did not resolve the merits of Hasan's case. The Board ordered Hasan to show cause why it should not dismiss his Emergency Motion as an impermissible interlocutory appeal. Hasan filed a response to the Board's order and Sargent & Lundy replied to Hasan's response.

   On July 30, 2004, the Board affirmed ALJ Lesnick's R. D. & O in Hasan I. Hasan v. Sargent & Lundy, ARB No. 03-030, ALJ No. 2000-ERA-7. Because the Board has now issued the Secretary's final decision⁴ in Hasan I and upon notification by the parties, Judge Kane will continue with his adjudication of Hasan II, this interlocutory appeal is moot. Therefore, ARB No.03-078 is DISMISSED.

   SO ORDERED.

       M. CYNTHIA DOUGLASS
       Chief Administrative Appeals Judge

       WAYNE C. BEYER
       Administrative Appeals Judge

¹ An earlier case between the same parties, Hasan v. Sargent & Lundy, ALJ No. 2000-ERA-7 (Hasan I) was assigned to ALJ Robert Lesnick.

² Both cases presented the issue whether Sargent & Lundy's imposition of a lifetime ban on hiring Hasan violated the ERA's whistleblower protection provision.

³ ALJ Kane further ordered the parties to "place the Court on notice once a final decision and order is issued" and indicated that at that time he would "address the motions of both parties." Slip op. at 2.

⁴ The Secretary of Labor has delegated her authority to issue final decisions under the ERA to the ARB. Secretary's Order 1-2002, 67 Fed Reg. 64272(4)(c)(7) (Oct. 17, 2002).