Sargent & Lundy is an engineering firm that was founded in 1891. (TR-IL 452). Initially, the business was a production house, but transformed into what is now a consulting engineering firm. (Id.) The firm focuses exclusively in the power industry, claiming it has designed more coal-fired units than any other architectural engineer in the United States and has been involved with 31 nuclear power plants. (TR-IL 453). The company is also ISO 9000, which is a worldwide certification, indicating the quality and safety of the company's work. (TR-IL 454).

   Syed Hasan was hired by Commonwealth Edison as a contractor at their LaSalle nuclear station. Mr. Hasan began working at the site around November 1998. (TR-IL 123). His job was to review the calculations done by Sargent & Lundy, which was also working as a contractor for Commonwealth Edison at the site. During his review, Mr. Hasan noted the joints attaching vertical and horizontal members. This case includes a detailed discussion about the use of "hinged" versus "fixed" joints.

   Mr. Hasan spoke to several people about his concerns regarding the calculations that were done, including his immediate supervisor. (TR-IL 136). He also spoke with other engineers and employees of Commonwealth Edison, the Estes group (another contractor), and Sargent & Lundy. (TR-IL 139-140). After these discussions, Mr. Hasan was not satisfied with the manner in which his complaints were addressed, so he completed the first of many Problem Identification Forms, or PIFs. (TR-IL 142). He also sent several e-mails to officials of the companies regarding Sargent & Lundy's calculations. The dispute between Mr. Hasan and Sargent & Lundy's engineers continued to escalate. Finally, in January 1999, Mr. Hasan contacted the Nuclear Regulatory Commission ("NRC") with his concerns. Mr. Hasan subsequently left his position as a contractor with Commonwealth Edison on March 26, 1999. (TR-IL 123).

   The NRC investigated these concerns. On November 2, 1999, the Director of the Reactor Safety Division issued an inspection report. (CX 45). In that report, the NRC noted two violations. The first violation was for inadequate corrective action for minimum fillet weld size. The second item was for inadequate design control for anchor bolt stiffness values. (CX 45). The NRC noted that these violations were of concern because they resulted from inadequate corrective actions; the Commission, however, treated both as non-cited violations in accordance with their enforcement policy. (CX 45).

   Mr. Hasan has applied for a position with Sargent & Lundy numerous times. He submitted his resume and application on June 15, 1998, May 19, 1999, July 13, 1999, August 31, 1999 and October 16, 1999. Sargent & Lundy did not offer Mr. Hasan a position. Thus, on November 15, 1999, he filed his OSHA complaint, which initiated this case. Mr. Hasan submitted his resume on two subsequent occasions, December 17, 1999, and January 3, 2000.

   Protected Activity

   It is noteworthy that this case initially involved one adverse action, the Respondent's failure to hire the Complainant. At the hearing, the parties agreed to permit the Complainant to amend his complaint, which now involves two adverse actions. The first involves the Respondent's failure to hire the Complainant from May 15, 1999 to November 15, 1999, the date Mr. Hasan filed his complaint against Sargent & Lundy. The second adverse action involves a decision by Sargent & Lundy officials never to hire the Complainant for a position.

   In its post-hearing brief, the Respondent concedes that the Complainant applied for employment between May 15, 1999 and November 15, 1999, the date he filed his OSHA complaints. The Respondent also notes that the Complainant was not hired. Moreover, in his July 10, 2000 Motion for Default Judgment, the Complainant alleged that between May 1999 and November 1999, the Respondent hired "over forty civil/structural engineers" and had hired additional engineers after November 1999, for the civil/structural/pipe support group. The Respondent does not deny Mr. Hasan's assertions. Thus, the Complainant has met the second and third prongs for a finding of adverse action.

   Mr. Hasan, however, repeatedly argues that he applied for positions for which he was qualified and experienced. In fact, in two separate Motions for Default Judgment, the Complainant stated that he applied to Sargent & Lundy by facsimile or mail on June 15, 1998, May 19, 1999, July 13, 1999, August 31, 1999, October 16, 1999, December 17, 1999, and January 3, 2000.

   I note that in the previous RD&O dismissing this case, I found that the Complainant had alleged the elements to establish a prima facie case of adverse action by the Respondent. On appeal, the Board noted this finding without additional comment. The Complainant asserts that he applied to Sargent & Lundy for positions for which he was experienced and qualified. He further cites his more than twenty years experience as an engineer. The Respondent counters with Mr. Hasan's limited recent experience, his unemployment, which kept him from continuously practicing and updating his trade, and his lack of a professional license. The evidence thus demonstrates that the Complainant was not qualified for a position with Sargent & Lundy.

   After reviewing the record, I note that the Complainant and the Respondent's employees vigorously disagreed with each other's positions at the LaSalle site. Moreover, Mr. Hasan applied four times, without success, in the 180 days prior to filing his OSHA complaint. Thus, I think he has raised an inference that his protected activity led to the adverse action. Therefore, I conclude the Complainant has made a prima facie showing of a nexus for this adverse action.

   If a complainant has established a prima facie case, then the respondent may rebut that showing with evidence that the action was taken for a legitimate, nondiscriminatory reason. Counsel for the Respondent asserts that not hiring the Complainant was as much intentional as it was by chance. (TR-AL 142). The Respondent argues that the established resume collection system and the hiring needs of the clients dictated the hiring process.

   Similarly, the Respondent notes that Mr. Petropoulos testified that, on one occasion in 1999, he was asked to submit several candidates to its client, a utility company, who would then hire some of those candidates. (TR-IL 703-704). According to Mr. Petropoulos, he requested resumes from the technical support center; these resumes were sent to the technical support center through contract houses. (TR-IL 703, TR-AL 142). Mr. Petropoulos was to review these resumes and refer them to the utility company, who would ultimately decide which candidates to hire. (TR-IL 704). Mr. Petropoulos testified that the client needed people who were well-versed in structural engineering, had recent experience in concrete and steel structure design, and were well-rounded engineers. (TR-IL 704).

   After reviewing the resumes, Mr. Petropoulos believed the Complainant's resume did not show recent experience, particularly in the areas specified by the company. (TR-IL 705). Mr. Petropoulos admitted to a familiarity with Mr. Hasan's work at the LaSalle project, but denied knowing that Mr. Hasan had a prior connection to the utility company. (TR-IL 706-707). Moreover, he stated that he made his referral decision based solely on the resumes, and the Complainant's whistleblowing activities had no impact on his 1999 decision. (TR-IL 707-709). Mr. Petropoulos finally noted that this review was the only time Mr. Hasan's resume came to his attention. (TR-IL 708).

   The Complainant argues that he submitted his resume a number of times, implying that such tenacity would have guaranteed him employment, but for his whistleblowing activities. Peter Meehan, senior manager of Sargent & Lundy's Corporate Human Resources Department, offered a comprehensive discussion of the process for gathering resumes. Generally applicants submit resumes to Sargent & Lundy; an employee then enters them into a resume data bank, called the Resumex System. Mr. Meehan also testified on the three methods the Respondent uses to hire engineers.

   One method of hiring, as summarized by the Respondent's Counsel, involves a contract house referring a resume directly to a hiring partner. The hiring partner then reviews the resumes and selects a number of candidates, who are then hired or rejected by the client. This method was used by Mr. Petropoulos in 1999. (TR-AL 142-143).

   Another method of hiring is for temporary service, which is overseen by James Kelnosky. Sargent & Lundy is broken into departments, and then into groups. (TR-IL 461). Each of these disciplines has its own manager, who reports his needs to Mr. Kelnosky. Usually these needs involve short-term, but immediate employees due to emergencies, or rapid growth with insufficient personnel to finish a project in progress. (TR-IL 466). Mr. Kelnosky then searches Resumex by keywords, depending on the employer's particular needs. The database generates a number of resumes fitting that description. Mr. Kelnosky's employees then call people from that list. When those calls yield the number of personnel requested, the phone calls cease. According to Mr. Meehan, because time is generally of the essence, there is only a superficial resume review, not an examination of the applicant's qualifications or even a comparison of resumes. (TR-IL 466-467).

   Finally, the Respondent also hires full-time employees through Mr. Meehan's department. Again, the discipline managers contact the human resources department and discuss their needs, the amount they are able to spend, and the extent of recruitment that is required. (TR-IL 461-462). Resumes are then collected from the mail, the Internet, and the Resumex System. (TR-IL 462-463). Once the resumes are collected, human resource staff look at prior experience, education, and any additional criteria required by the discipline managers in order to make a general cut, based on the applicant's experience and education and how that relates to the position for which he/she is applying. (TR-IL 462). The resumes are then submitted to the discipline managers, who decide which candidates to interview. (TR-IL 464). Ultimately, the decision to hire depends on the particular business group, but the discipline manager, not the human resources department, has the final say as to which candidate is hired. (TR-IL 464-465). Mr. Meehan noted that there is probably more weight given to previous employees, whose files are marked eligible for rehire. (TR-IL 463). Similarly, if an applicant is rejected, the Resumex System indicates that rejection, and the Human Resources staff do not refer that resume for future consideration. (TR-IL 474, TR-AL 143).

   Mr. Meehan also testified about the application of the hiring and resume gathering processes to the instant case. The Complainant applied for a position as a civil structural engineer with Sargent & Lundy on July 22, 1997. (DX 3). Despite having knowledge of Mr. Hasan's previous litigation against the company, Mr. Meehan referred the resume to Artim Dermenjian, the discipline manager for the nuclear department's civil structural engineering unit. (TR-IL 469). Mr. Hasan was interviewed on November 11, 1997. (DX 13 et seq). The interviewers included Mr. Dermenjian, Javad Moslemian, Ismail Kisisel, and James Kamba, the discipline manager for civil structural engineering of the fossil department. (DX 13, TR-IL 471-472).

   During their interview, Mr. Moslemian noted the Complainant was most likely somewhat "rusty" because he had been unemployed since May 1994. (DX 13(c)). He noted that Mr. Hasan showed "average basic knowledge" in response to some technical questions on concrete design. (Id.) Furthermore, while the applicant did not know MathCad, he stated that Mr. Hasan expressed a willingness to learn it on his own time. (Id.) Mr. Moslemian recommended Mr. Hasan for a structural position with the nuclear department. (Id.) Dr. Kisisel gave the Complainant the highest marks in his interview evaluation. He noted Mr. Hasan's "considerable experience and technical know how in the concrete and structural design and pipe support." He recommended Mr. Hasan for a structural and civil position with the nuclear department. (DX 13(d)).

   Mr. Kamba, however, did not recommend the Complainant for a position. On the interview evaluation form, he noted that Mr. Hasan did not show adequate technical knowledge in expansion anchor behavior, and was confused about certain programs. (DX 13(a)). Mr. Kamba characterized Mr. Hasan's basic steel knowledge as "adequate." (Id.) Mr. Kamba testified that, based on his resume, Mr. Hasan's experience was mostly in hanger design at nuclear power plants. (TR-IL 679-680). He concluded that the Complainant was an average candidate, who "didn't have the skills to fit in with the fossil power group." (TR-IL 680). Mr. Kamba also noted that he had not heard of the Complainant prior to the 1997 interview, nor was he aware of litigation between Mr. Hasan and Sargent & Lundy. (TR-IL 680-681).

   Likewise, Mr. Dermenjian did not recommend Mr. Hasan for employment. He stated that the Complainant's experience in structural engineering was average, and that he did not bring a new technical expertise to the table. (DX 13(b)). Mr. Dermenjian noted Mr. Hasan's eagerness to restart his engineering career, from which he has been absent since 1994. (Id.) Mr. Dermenjian also testified in the instant case. He first noted that when he interviewed Mr. Hasan, he was unaware that Mr. Hasan was a whistleblower or that he was involved in litigation with Sargent & Lundy. (TR-IL 651). Mr. Dermenjian also stated that while he did not recommend Mr. Hasan for a position, he believed his evaluation was a good one, rather than a negative evaluation. (TR-IL 662-663). However, while he stated that Mr. Hasan's expertise and experience were "average," which he defined as "meets expectations," Mr. Dermenjian further testified that he had people with those capabilities on staff, and he was looking for different types of capabilities at that time. (TR-IL 663).

   As noted above, the discipline managers have the final say as to which candidate is hired. (TR-IL 464-465). After the Complainant's 1997 interview, those charged with the power to hire did not make a determination favorable to Mr. Hasan. According to their testimony, Mr. Dermenjian and Mr. Kamba based their ultimate decision on both the Complainant's interview and his resume, including his experience, ability, and absence from the field.

   In his discussion of the hiring process, Mr. Meehan noted that when an applicant is rejected, the Resumex System indicates that rejection, and the Human Resources staff does not refer that resume for future consideration. (TR-IL 474, TR-AL 143). Accordingly, when the Complainant was rejected by Mr. Kamba and Mr. Dermenjian in 1997, his resume was not referred through the Resumex system in 1999. Moreover, the Respondent has noted several times that the resume data bank includes approximately 8,000 resumes. Thus, the only time Mr. Hasan's resume was considered in the statutory period was by Mr. Petropoulos, who rejected Mr. Hasan because he believed the Complainant's resume did not show recent experience, particularly in the areas specified by the client-company. (TR-IL 705).

   Aside from making the allegation, the Complainant likewise failed to demonstrate that Mr. Petropoulos acted out of retaliation for the occurrences at the LaSalle plant. Moreover, Mr. Meehan explained the Respondent's methods of hiring. For temporary hires, the computer generates a list of potential candidates, and they are contacted in the order generated. Mr. Hasan has not demonstrated how this method, which seems to be the luck of the draw, was intentionally used by the Respondent to exclude him from employment opportunities. Finally, Mr. Hasan was rejected in 1997. He argues that Dr. Kisisel's endorsement should have been sufficient to hire him. However, the Complainant fails to show, by a preponderance of the evidence, that the discipline managers, who hold hiring authority, knew of his protected activities or past litigation, when they rejected him in 1997. Once that rejection is noted into the resume data bank, that resume is not considered for future employment. While the Complainant raises a great number of accusations and allegations, he also bears the burden of demonstrating that the evidence supports his assertions. Here, the Complainant falls short.

   After reviewing the facts and the record, I find that, while the Complainant has raised an inference of a nexus between his protected activity and the adverse action, the Respondent has established legitimate, nondiscriminatory reasons for not hiring him within the 180-day statutory period. The Complainant has failed to rehabilitate his case because he has not demonstrated that the Respondent's motives were anything other than legitimate and nondiscriminatory.

   Post-Claim Filing

   On cross-examination Sean Hagen clarified the effect of the Complainant's disagreement with Sargent & Lundy's practices at the LaSalle site on subsequent evaluations. He stated, "the fact that he raised a concern that he felt strongly about, there's nothing negative about that." (TR-IL 859). He continued that such an action "may actually be a positive thing. You need somebody that's going to stand up and raise a concern and issue.... It's one way to assure yourself you're going to end up ultimately with a safe project, a safe design." (TR-IL 859-860). However, whether or not someone raises those concerns, if a person "has not displayed an understanding of the engineering fundamentals and principles, of how to apply it, that has not applied appropriate analytical techniques to do something, ... has not been able to communicate effectively, [and] has not been able to work with the other members on the project, effectively, as a team," then those negative attributes would result in a lower ranking on an evaluation. (TR-IL 859).

   Mr. Hagen also testified with respect to the decision never to hire the Complainant. Mr. Hagen began by recalling his first encounters with the Complainant, as they worked together on the LaSalle project. He found Mr. Hasan to be generally inflexible, especially regarding the approaches that should have been used and how the pipe connections should have been modeled. (TR-IL 530). Mr. Hagen stated that he had a negative impression of the Complainant from their first meeting because he believed Mr. Hasan had a different agenda or ulterior motives. (TR-IL 531). He also felt that Mr. Hasan had additional concerns with Sargent & Lundy that went deeper than the pipe connections; however, Mr. Hagen testified that he was not aware of Mr. Hasan's existing litigation with the company at that time. (Id.)

   Mr. Hagen noted that the Complainant was upset when they disagreed over the connection issue and unwilling to accept different assessments; as a result he started filing Problem Identification Forms (PIFs). (Id.) Mr. Hagen expressed concern that the Complainant immediately mentioned escalating the situation by threatening to go to the NRC; Mr. Hagen believed this was an extreme approach to dealing with a difference of opinion on a technical issue. (TR-IL 533). He later added that Mr. Hasan's reactions went beyond the technical issues, which led Mr. Hagen to believe the Complainant did not have very good judgment. (TR-IL 552). Similarly, he did not think that Mr. Hasan had a good grasp of applying fundamental engineering principles to practical applications. (Id.) In sum, Mr. Hagen concluded that the Complainant was very difficult to work with, obstinate, and inflexible. (TR-IL 572).

   A lifetime ban on hiring the Complainant certainly raises a question regarding the Respondent's motives. However, those who testified on the Respondent's behalf noted Mr. Hasan's personality, echoing Mr. Hagen's opinions that the Complainant was difficult to deal with and inflexible. Additionally, Mr. Meehan gave a sound reason for the ban on hiring the Complainant when he explained that it was preposterous to think Mr. Hasan could be a reliable representative to recruit and maintain clients after spending so many years openly criticizing Sargent & Lundy and the work they do. Once again, Mr. Hasan has failed to rebut the Respondent's legitimate argument with anything other than allegations, which he has failed to prove.

   I find that the Complainant has made a sufficient showing to establish a prima facie case of retaliation for the December 1999 decision to never hire him. However, after reviewing the entire record, I find that the Respondent has demonstrated a legitimate, nondiscriminatory reason for its decision. The Complainant has not rehabilitated his case because he has failed to demonstrate that the Respondent's motives were anything other than legitimate and nondiscriminatory.

   Accordingly, the Complainant has failed to meet his burden, and thus, is not entitled to relief under the Energy Reorganization Act.

   1. The Complainant was a contractor, employed by Commonwealth Edison, when he reported his disagreements with Sargent & Lundy to the NRC.

   2. The Complainant thus engaged in protected activity.

   3. The Respondent rejected the Complainant after he applied for employment, and the Respondent continued to seek applicants with similar qualifications as the Complainant's. Ultimately, the Complainant failed to demonstrate that he was qualified for the available positions.

   4. The Respondent was aware of the Complainant's protected activity when it refused to hire him.

   5. The Respondent did not hire the Complainant between May 15, 1999 and November 15, 1999, for legitimate, nondiscriminatory reasons.

   6. In December 1999, the Respondent permanently refused to hire the Complainant and continues to maintain that position. The Respondent, however, has demonstrated legitimate, nondiscriminatory reasons for its action.

   Accordingly, in view of the foregoing, and based upon the entire record, I hereby recommend that the claim filed by the Complainant, Syed M.A. Hasan, under the Energy Reorganization Act be dismissed.

      ROBERT J. LESNICK
      Administrative Law Judge

NOTICE: This Recommended Decision and Order will automatically became 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, U.S. Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, N.W., Washington, D.C. 20210. Such a petition for review must be received by the Administrative Review Board within ten business days of the date of the 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 Fd. Reg. 6614 (1998).