Bryant v. Ebasco Services, Inc., 88-ERA-31 (Sec'y July 9, 1990)

complainant sought "any comparable position" and applied for numerous positions with Respondent outside of quality control, for which he was qualified. Alternatively, Complainant challenges Respondent's assertion that the cited Nuclear Regulatory Commission (NRC) guidelines are mandatory "requirements" as opposed to "recommendations." The ALJ's order stated, without elaboration: "[a]fter having reviewed the arguments of the parties, the Court is of the opinion that Claimant's lack of a high school diploma or equivalency is dispositive of this case."

DISCUSSION

Because I find that Complainant has raised material issues of fact which the ALJ's conclusory dismissal did not address, this case will be remanded.

I recognize that pursuant to the DOL regulations and the developed case law, the non-moving party cannot defeat a supported motion for summary judgment by resting on allegations or denials. 29 C.F.R. § 18.40(c) (1989); Foster v. Arcata Associates, Inc., 772 F.2d 1453, 1459 (9th Cir. 1985), cert. denied, 475 U.S. 1048 (1986). Moreover, the non-moving party cannot defeat a notion for summary judgment if the evidence presented, if accepted as true, does not support a rational inference that the substantive evidentiary burden of proof could be met. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-252 (1986); Helmstetter v. Pacific Gas & Electric Co., Case No. 86-SWD-2, sec. Decision and Order of Remand, June 15, 1989, slip op. at 9.

Respondent's motion is based on the underlying premise that complainant seeks reinstatement to his former position as a quality control inspector within the nuclear industry, and that the requisite qualifications established for these positions are regulated by the NRC. To the extent that Complainant seeks reinstatement to his former position as a quality control inspector at a nuclear power plant, the ALJ correctly concluded that Complainant's admitted lack of a high school diploma or GED equivalency is dispositive. Respondent has proferred evidence establishing its policy of compliance with the NRC Regulatory Guide 1.58, Revision 1, September, 1980, entitled "Qualification of Nuclear Power Plant Inspection, Examination and Testing Personnel." See Affidavit of Thomas C. Brandt, dated March 25, 1989 (Exhibit 3 to Respondent's Motion); Exhibits 1 and 2 to Respondent's Motion; Abel deposition at 25-27, 84-95. These

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guidelines are applicable in the hiring of quality control personnel at nuclear construction projects and provide in pertinent part that, "the candidate should be a high school graduate or have earned the General Education Development equivalent to a high school diploma." Complainant admittedly does not satisfy these educational requirements and has not presented any evidence to refute Respondent's showing that Respondent consistently follows this guideline at nuclear projects.⁴ Consequently, Complainant cannot make a prima facie case of discriminatory refusal to rehire or hire with respect to these quality control positions, because he cannot show that he has the educational qualifications required for these jobs with Respondent. Accordingly, this allegation of the complaint is denied.

The ALJ did not address Complainant's additional allegation that he applied for jobs with Respondent which do not require a high school diploma or GED equivalency and for which he was qualified. Complainant proffered evidence to support his contention that he sought any "comparable position" with Respondent for which he was qualified and not simply reinstatement to his former position as a quality control inspector. See Perez letter dated October 30, 1987 (Exhibit F to Abel deposition); Perez "Narrative" and "Recommendation" dated April 10, 1987 (Exhibit B to Abel deposition); Resume dated January 1987 (Exhibit H to Abel deposition); complainant's Affidavit (Exhibit 7 to Complainant's Brief); Abel deposition at 70-73. The ALJ did not indicate whether this evidence was considered, and he failed to discuss the effect, if any, of the alleged reemployment terms of the prior settlement agreement.

Neither was Complainant's allegation of blacklisting by Respondent addressed. Complainant alleged that "bad paper" rumors were being spread by Respondent's personnel, Complainant's letter to Mr. Brown, Wage and Hour Division, dated January 11, 1988, at 1, 4, and Complainant has submitted evidence which, if accepted as true, would satisfy his burden of establishing a prima facie case of blacklisting against Respondent. Complainant's Affidavit (Exhibit 7 to Complainant's Brief) at 2-3, No. 15; Abel deposition at 79-83.

Consequently, Complainant's allegations of blacklisting and retaliatory refusal to rehire or hire in a non-quality control position, must be decided. I conclude, therefore, that this case must be remanded to the ALJ for an evidentiary hearing on these allegations. In remanding this case, I reach no conclusions, nor

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should any be inferred, as to the merits of these allegations.

ORDER

Accordingly, this case is remanded to the ALJ for further consideration consistent with this opinion.

SO ORDERED.

ELIZABETH DOLE
Secretary of Labor

Washington, D.C.

[ENDNOTES]

¹ The ALJ's Order is not entitled a "Recommended Order. Under the regulations implementing the ERA, however, an ALJ's decision is only a recommended decision except in limited circumstances. see 29 C.F.R. § 24.5(e)(4) (1989). Final orders are issued by the Secretary. 29 C.F.R. § 24.6.

² The record includes a "Release," signed by Complainant and the DOL compliance officer on April 10, 1987, in settlement of the earlier complaint, but the Release does not specify any terms agreed upon by the parties. Because of factual questions concerning this prior complaint and its resolution, any issue now raised by Complainant concerning the enforcement of the alleged terms of the prior agreement cannot be resolved in this decision. The relevant allegations concerning the earlier complaint will be considered, however, as part of the factual situation leading to the instant complaint.

³ Respondent apparently was misled concerning Complainant's education when Respondent employed him previously as a quality control inspector. See Able deposition at 84-93, Exhibits B, I and J.

⁴ I need not decide whether the guideline is a "requirement" or "recommendation" since Respondent has demonstrated its adoption and consistent use of the guideline.