On February 4, 2002 an Order Granting in Part Respondent's Motion for Summary Judgment was issued. For the purpose of this recommended decision, that order is incorporated by reference as the recommended disposition of those issues. In the February 4, 2002, order it was found that a genuine issue as to a material fact did not exist as to all of Complainant's allegations of constructive discharge and blacklisting. However, it was found that a new issue, raised for the first time in the Complainant's discovery deposition, existed. The new issue involved a new allegation, first made by the Complainant in his discovery deposition, that WSRC retaliated against him for his protected activity by refusing to rehire him for a job that came open in October of 2000. The February 4, 2002, order held that a genuine issue as to a material fact did exist to this new allegation (because it was not addressed in the motion for summary decision), and that a hearing would be scheduled to consider the issue.

   Accordingly, on February 20, 2002, a Notice of Hearing was issued scheduling this matter for hearing in Columbia, S.C., on April 24, 2002.

   Thereafter, on March 12, 2002, Respondent filed a second motion for summary judgment as to the new issue, that they refused to rehire Complainant. Complainant filed a response to that motion on March 15, 2002. On March 21, 2002, an order was issued denying Respondent's motion for summary judgment, finding that a genuine issue of a material fact remained as to whether or not WSRC received Complainant's application for employment. The order advised the parties that the hearing in this matter would be limited to the issue of Respondents' refusal to rehire Complainant due to protected activities under the ERA. The March 21, 2002 order is also incorporated by reference as a part of this recommended decision and order.

   On April 23, 2002, a formal hearing was conducted in Columbia, South Carolina. At the hearing the Complainant appeared pro se. Subsequently, on August 8, 2002, Attorney Robbie M. Nichols, advised that she has been retained to represent the Complainant with respect to this matter.

   At the formal hearing, the Respondent stipulated that it was not disputed that jurisdiction existed to consider this matter under the whistleblower provisions of the ERA, and that it was not disputed that the Complainant engaged in protected activities under the Act. (Tr. 5). Evidence was taken on the sole remaining issue of whether the Respondent failed to rehire the Complainant as a result of his protected activities. The evidence consists of the testimony of the Complainant and three exhibits admitted as Respondents' Exhibits 1, 2 and 3. Argument was taken on the record. Briefs have not been submitted or required as the Complainant was appearing pro se.

   At the completion of the hearing, the Respondent renewed its motion for summary decision. (Tr. 59). After considering the Complainant's testimony and the exhibits offered by the Respondent, the parties were advised that the motion would be granted, and that a finding would be made that there is no evidence that the Respondent, Westinghouse Savannah River, was aware that the Complainant had applied for a job in October of 2000. In light of that finding, the parties were advised that the motion to dismiss would be granted. This recommended decision is issued to document that finding and to indicate for purposes of further review, that all issues have been considered.

Failure to Rehire

   The Complainant testified at the hearing that on October 16 [2002] he took a resume to the South Carolina Department of Labor to apply for one of four jobs that were shown to him by a Mr. Gilbert, for an estimating job. He stated that the application was notarized by Regions Bank, and that it was stamped on October the 16th by Mr. Gilbert the VA representative, who told him to call back in two days. However, Mr. Hooker testified that he did not go to the Savannah River plant to file the application, but relied on Mr. Gilbert to file the application. He testified that he never received any correspondence from Mr. Gilbert indicating that the application had been filed. Mr. Hooker testified that he called Mr. Gilbert on the 18th, and that he told him he had talked to Westinghouse and that they would be in touch. (Tr. 7-8).

   He testified that he never had any communication with anyone at Savannah River plant about this application, and never heard anything back from it. He testified that he had received an acknowledgment back from Savannah River on another application that he had filed, but not on this one. (Tr. 9-10).

   Mr. Hooker was asked, even assuming that it was found that the Respondent received the application, to identify what evidence he had that his protected activities, his reporting of safety problems, was in any way a factor in their decision not to hire him. Mr. Hooker responded that "I couldn't say why they wouldn't want to hire me. Maybe just, you know, DOE has it right now on whistle blowers, from what some of the reading I have done on, they talk about -- they go ‘nuclear' over whistle blowers." (Tr. 11).

   On cross examination, Mr. Hooker testified again that he gave his resume to Mr. Gilbert, but that he did not have any evidence that he sent that to WSRC, other than Mr. Gilbert's word. He testified that, "I got a verbal on him. I called him, I believe, on the 14th. He said: I sent the damn resume to Westinghouse." (Tr. 35). Mr. Hooker then testified that during the following two years, he never called Respondent to ask about the application and that no one ever called him. (Tr. 37).

   In his closing statement, Counsel for Respondent correctly argued, inter alia, that there is no evidence that the Respondent ever received Complainant's application for employment. The Complainant could offer no explanation for what happened to the application, except to say that Mr. Gilbert told him it had been sent. Mr. Gilbert was not called to testify regarding the application. Moreover, the Complainant never called Respondent to inquire and acknowledged that no one called him for over two years.

   While the Complainant's testimony, that he filed an application with the South Carolina Department of Labor, is credible, I find that no reliable evidence exists to prove that such was ever communicated to the Respondent. As such, the Respondent cannot be held to have refused to rehire the Complainant as a result of his protected activities.

   Accordingly, it is recommended, for the reasons set out herein, and in the two incorporated orders referred to above, that the complaint of William D. Hooker filed against Westinghouse Savannah River Co. in this matter, be Dismissed.

       Richard E. Huddleston
       Administrative Law Judge

NOTICE: This Recommended Decision and Order will automatically become 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, United States Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, NW, Washington, DC 20210. Such a petition for review must be received by the Administrative Review Board within ten business days of the date of this Recommended Decision and Order, and shall be served on all parties and on the Chief Administrative Law Judge. See 29 C.F.R. §§§§ 24.7(d) and 24.8.