Hasan v. Southern Co., Inc., 2003-ERA-32 (ALJ Jan. 6, 2004)

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Hasan v. Southern Co., Inc., 2003-ERA-32 (ALJ Jan. 6, 2004)

U.S. Department of Labor Office of Administrative Law Judges
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111 Veterans Memorial Blvd
Metairie, LA 70005
(504) 589-6201
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Issue Date: 06 January 2004
CASE NO.: 2003-ERA-32

IN THE MATTER OF

SYED M. A. HASAN
Complainant

SOUTHERN COMPANY, INC., et al
Respondents

RECOMMENDED DECISION AND ORDER
GRANTING RESPONDENTS' MOTIONS TO DISMISS AND FOR SUMMARY DECISION

Background

Complainant's original complaint filed with OSHA on May 22, 2003 (and denied by OSHA) alleges that in January of 2003 Complainant applied, through CDI Professional Services, with Southern Company (Respondents)¹ for the position of Senior Structural Engineer. A position for which he maintains he was qualified. However, because of his whistleblowing reputation, of which Complainant alleges Respondents had been aware through its subsidiaries since 1997, Complainant states he was notified in February 2003 that the position had been given to another lesser qualified person. Complainant now seeks relief under Section 211 of the Energy Reorganization Act of 1974, as amended, 42 U.S.C. 5851 (Act).

Initially, this matter was scheduled for formal hearing on November 13, 2003, but by agreement of the parties, in order for discovery to be completed, the trial was reset for January 7, 2004. On November 28, 2003, Respondents filed a Motion to Dismiss Or In the Alternative Motion for Summary Decision. Complainant was granted until December 19, 2003, by which to file his response. The following is based upon a consideration of all the submissions of both parties.

Discussion and Findings

A dismissal of an action is appropriate when it is clear that no relief could be granted based on the facts alleged. In deciding a motion for summary decision the court must consider all the materials submitted by both parties, drawing all reasonable inferences in a manner most favorable to the non-moving party. Fed.R.Civ.Proc. 56(c); Adickes v. S.H . Kress & Co., 398 U.S. 144 (1970). An order granting summary decision shall be issued when there is no genuine issue of material fact, the moving party is entitled to judgment as a matter of law, and reasonable minds could come to but one conclusion, which is adverse to the party against whom the motion is made. See LaPointe v. United Autoworkers Local 600, 8 F.3d 376, 378 (6th Cir. 1993); United States v. TRW, Inc., 4 F.3d 417, 423 (6th Cir. 1993), cert. denied 114 S.Ct. 11370 (1994).

[Page 2]

Both through his pleadings and in his deposition, Complainant maintains that he meets and exceeds the requirements for Senior Engineering position with Respondents, but Respondents "based on its knowledge of my prior protected activity refused to hire me as a retaliation. . . . " (Brief pg. 9).

Pages 14-16 of Complainant's brief details a history of Complainant sending a resume in July of 1997 to Alabama Power Company, a subsidiary of Southern Company, for the position of Civil Engineer. On that occasion Complainant said he spoke with a "lady" in Alabama Power Company's human resource department and asked that he not be discriminated against as a "whistleblower." Complainant was never interviewed for that position, but says it is "well established" that the fact he was a whistleblower was "immediately" conveyed to Southern Company. In 1998 or 1999, Complainant maintains he also sent his resume to Southern Company, based on the belief some temporary jobs were available, but he heard nothing in return. It was not until January 2003, that Complainant again applied for a position with Southern Company.

In January of 2003, Complainant said he learned, through CDI Professional Services, of a Senior Structural Engineer position with Southern Company. Complainant applied through CDI for the temporary job, but in February of 2003 was informed by CDI that he was not hired for the position. At that point, Complainant said he called "Ms. Pierce" with Southern Company and asked he not be discriminated against as a whistleblower.

Based on the fact that he has never been interviewed nor hired by Southern Company nor any of its subsidiaries since first seeking employment in 1997, Complainant argues that this evidences adverse action on Respondents' part that he is being retaliated against.² He feels Southern Company is obligated to hire him "for various positions," he complains of opposing counsels' conduct and seeks their disqualification and requests 4-6 months salary be paid him immediately. (Brief pg. 22, 43).

Respondents raise several grounds in their motions. They argue that Southern Company, and a number of the other named subsidiaries, are not classified as covered employers under the Act nor does Southern Company exercise control over the subsidiaries; that Complainant's claim is limited by the Act to occurrences within 180 days of the filing of his complaint; and procedure notwithstanding, that Complainant's complaint should be dismissed in its entirety because he fails to allege a prima facie case of retaliation and discrimination. As to the latter defense, I agree with Respondents and find it dispositive of this claim.

In order to prevail in an ERA whistleblower case, a Complainant must prove that he engaged in protected conduct and that the employer took some adverse personnel action against him because of that protected conduct. Carroll v. Bechtel Power Corp., Case No. 91-ERA-46, Sec'y Fin.Dec. and Ord., Feb. 15, 1995 slip op. at 11, n.9, aff'd sub nom Carroll v. Department of Labor, 78 F.3d 352 (8th Cir. 1996). As an initial matter, the ERA requires that "[a]ny employee who believes that he has been discharged or otherwise discriminated against by any person in violation of [the ERA] file . . . a complaint with the Secretary of Labor . . . alleging such discharge or discrimination. 42 U.S.C. §5851(b)(1) (emphasis added). At a minimum, the complainant must allege the elements of a prima facie case , i.e. that (1) the complainant engaged in protected conduct; (2) the employer was aware of that conduct; (3) the employer took some adverse action against him; and (4) there is evidence sufficient to raise an inference that the protected activity was the likely reason for the adverse action. Carroll, supra, slip op. at 9, citing Dartey v. Zack Co. of Chicago, Case No. 82-ERA02. Sec'y Dec., Apr. 245, 1983, slip op. at 7-8. In this instance there is not a scintilla of evidence to support Complainant's argument that the Respondents here had any knowledge of protected conduct on Complainant's part when the employment selection was made in 2003.

[Page 3]

Two employees of the Generation and Energy Marketing business unit of Southern Company Services, Inc.,³ John B. Smith, Jr., and Juan Blanco, were assigned the task of filling a temporary position. Both men testified under oath by affidavits (Exhibit C&D of Respondents' Motion) that a temporary need arose in January 2003, for a Structural Engineer for a project at Gulf Power's Plant Crist in Pensacola, Florida, unrelated to the nuclear industry; that 21 resumes were received for the position; that neither man had ever heard of Complainant nor his prior protected conduct; that neither man performed a computer or internet search with respect to Complainant or any of the other applicants; and that the two alone selected Kevin Mendenhall for the assignment in February 2003 because he was determined to be the most qualified for this non-employee temporary assignment and was known, liked and respected by his peers. To these sworn statements of Messrs. Smith and Blanco, Complainant can only offer that the two had obviously been "brainwashed by the present employees of Southern" and that they "lied" by saying Complainant lacked relevant 3D computer program experience.

In Hasan v. Commonwealth Edison Co., et al, ARB Case 00-028, ALJ Case No. 2000-ERA-01 (Dec. 29, 2000) the Administrative Review Board agreed with the Administrative Law Judge that "naked allegations" are insufficient to support a claim of discrimination and went on to say:

A complainant cannot simply ‘file a conclusory complaint not well-grounded in fact, conduct a fishing expedition for discovery, and only then amend the complaint in order to finally set forth well-pleaded allegations.' Oreman Sales v. Matchushita Elec. Corp., 768 F.Supp. 1174 (E.D. La. 1991). If the complainant fails to allege a prima facie case, the matter is subject to immediate dismissal. See Lovermi v. Bell South Mobility, Inc., 962 F.Supp. 136 (S.D. Fla. 1997). Given Hasan's failure to allege a prima facie case, we concur with the ALJ that the instant complaint should be dismissed.

I see no distinction with the rationale in that case and the one now before me. On October 30, 2003, following a telephonic conference, I entered a three page order providing Complainant with relevant discovery and subsequently enforced the terms of that order by a second order dated November 10, 2003. Respondents' complied, and yet Complainant was left with only conjecture, which he has expressed in numerous other such cases;⁴ and while I am well aware that Complainant may make a prima facie case by circumstantial evidence which establishes facts adequate to permit an inference of discrimination, no such reasonable inference has here been demonstrated by Complainant.

Granted, though barred by time constraints, previous acts can be considered to explain current conduct; however, here the only past actions on Complainant's part were his comment to a "lady" at Alabama Power Company in July 1997 urging her to not discriminate against him and a resume he thinks he sent to Southern Nuclear Operating Company, Inc.'s Plant Vogtle in 1998 or 1999 at which time he spoke to a "male" and revealed himself as a whistleblower. The remoteness of these events in time and specificity are such that an inference that these persons "immediately" conveyed to Southern Company and other subsidiaries the identity of Mr. Hasan is neither plausible nor supportable by other evidence. It is nothing more than speculation on Complainant's part.

In sum, Complainant has failed to demonstrate that any of Respondents' employees who took part in the process of reviewing Complainant's resume and the hiring of another in February 2003 had any knowledge of Complainant's acclaimed status as a "whistleblower." To the contrary, Complainant agreed in his deposition that he had no way of knowing if anyone had ever alerted these two men of his previous conduct, that he had not told the representative at CDI Professional Services (through whom he sought the job) of his status, nor was it so noted on his resume. In other words, Complainant can offer no evidence to demonstrate or infer that Messrs. Blanco and Smith are being untruthful when they swear they had no knowledge of Complainant's whistleblowing activities at the time they made their hiring decision in February 2003 and that they hired Kevin Mendenhall for the assignment because he was determined by them to be the most qualified, was known, liked and respected by his peers.

[Page 4]

As to Complainant's motion to disqualify Respondents' counsel and for default judgment and sanctions, I find the same to have no merit. Respondents' counsel objected to what they viewed as overly broad discovery and answered those interrogatories as required to do so. As far as the affidavits of Messrs. Blanco and Smith there is no evidence to suggest these men perjured themselves or that the Respondents' counsel sought perjured testimony from them. I find nothing in Complainant naked allegations that would require the disqualification of these counsel nor the entry of a judgment with sanctions against Respondents.

ORDER

For reasons stated, Respondents' motions are GRANTED and Complainant's complaint is DISMISSED. Likewise, for reasons stated, Complainant's motions are DENIED.

So ORDERED this 6th day of January, 2004, at Metairie, Louisiana.

C. RICHARD AVERY
Administrative Law Judge

CRA:kw

[ENDNOTES]

¹ Complainant filed his complaint against Southern Company and all of its subsidiaries.

² In making such an argument, Complainant urges acts outside of the prescriptive period which are action barred should be considered as relevant background evidence to explain current conduct.

³ Southern Company Services, Inc., provides engineering and construction consulting services to affiliate companies in Southern Company.

⁴ During his deposition, Complainant acknowledged some 26 unsuccessful ERA complaints he has filed against various employers.