(TX 105) It
was in this context that he contacted Complainant by telephone. (TX
105)
In the wake of his first telephone interview
with Complainant, Oatley testified that he had some concerns:
"Well, I felt like I didn't really have a good handle on his
structural credentials, whether or not that experience was broad
enough to apply to the work that we do;...I felt like
communications were difficult." (TX 107-108) Oatley stated,
"After we had this conversation, in spite of those weaknesses,
I said that we would conduct an on-site interview and that I would
have Steve Spray get in touch with him to arrange the date and
time." (TX 108) Oatley testified that his face-to-face
interview on December 20, 1995 did not ease his concerns:
My impressions of [Complainant] were that he did not ask
very many questions, as I would expect most of our
candidates to ask. He nodded a lot, smiled a lot, and
agreed a lot, but didn't really have any questions; was
difficult to get to talk.
...
I had the opinion that he probably wasn't a fit in our
organization ... because the positions we have require
good communications skills. They require not only the
application of structural expertise, but also the
accumulation of computer graphics expertise; I felt we
had a real problem there.
(TX 110-112) Oatley continued:
My conclusion was that [Complainant] would have
difficulty understanding the problem that the customer
was describing [at the help desk]; and, therefore, would
have difficulty trying to devise a solution for it.
(TX at 116)
Oatley also testified that he eventually
concluded that an internal transfer of Respondent employee Doug
Grant would be a better option to fill the potential opening. (TX
117, 163-164) Oatley testified that, "Mr. Grant had a very
steep learning curve that he had accomplished, he had a history of
learning new things very quickly; he had excellent communications
skills;... He did not need to work, necessarily, under the
tutorship or as a support for somebody else, he would take a
leadership role..." (TX 164)
As it turned out, Nadia Carey did not leave
Respondent, and Doug Grant transferred to Oatley's section, leaving
Oatley with two structural analysts where he had feared he would
have none. (TX 117)
After his interview with Oatley, Complainant
spoke with Alain Mouyal, a Senior Systems Consultant at Respondent.
(scheduled for 3:00 pm, CX 16) Complainant states that, during his
technical interview with Mouyal, Mouyal made a specific connection
between Complainant, Comanche Peak, and Stone & Webster
Engineering. He states that, while looking at Complainant's resume,
Mouyal asked if he (Complainant) had worked at Comanche Peak.
Complainant stated that he had worked there from 1982-1985. Mouyal
then stated that Stone & Webster was at Comanche Peak in 1985. (TX
85)
Complainant's contention is that this
"pinpointed" exchange proves Mouyal's knowledge of his
prior protected activity, i.e., his ERA action against Nuclear
Power Services, et. al., infra. (TX 85-87)
Alain Mouyal did not testify at the hearing, but
provided responses to Complainant's interrogatories. These
responses are at Appendix 2 to Complainant's Post-Trial Brief.
Mouyal was a Support Engineer in the PBS
Division on December 20, 1995, the time of the technical interview.
(CX 16) Mouyal stated that, after his interview, his evaluation of
Complainant was that "From my very limited knowledge of
Structural Engineering and Pipe Supports, he appeared qualified in
these areas. However, [Complainant] lacked CAD experience"
(Response to Question 16(b) [Q16(b)])
He stated that, after the interview, he talked
with both Haynie and Oatley about Complainant: "I stated to
both of them that [Complainant] appeared technically qualified in
the Structural engineering area, but that his lack of CAD
experience and poor communication skills prevented him from being
qualified for the position." [Q16(c)] Mouyal further stated
that he had not shared his evaluation of Complainant with anyone
"outside Respondent Corporation". [Q16(d)]
Mouyal was not asked, in these interrogatories,
about his knowledge of Complainant's prior claims under the ERA.
In his May 16, 1996 Affidavit, however, Mouyal stated, "At no
time did I ever contact [Complainant's] stated references or his
previous employers. Furthermore, I never discussed with
[Complainant] any prior litigation or claims brought by
[Complainant]. My evaluation of [Complainant] was limited
exclusively to his application and resume as well as his
interviews." (CX 15)
Complainant had two additional technical
interviews on December 20, 1995. He interviewed with Nadia Carey,
a Customer Support Engineer (scheduled for 2:30 p.m., CX 16) and
LaVoir Haynie, a Support Manager in Respondent's PBS Division
(scheduled for 3:30 p.m., CX 16). Complainant points out that
according to the interview schedule (CX 6) he was supposed to meet
again with Oatley for a summary, following his interviews with
Carey and Haynie. Complainant testified, however, that Oatley
entered the room during his interview with Haynie and told him that
his summary meeting would not take place, and to see Spray
following the interview. (TX 89)
LaVor Haynie testified that he was a Support
Manager in the PBS organization at the time he interviewed
Complainant. He was responsible for, "running the support
organization dealing directly with customer support, dealing with
post-sales...[customer] problems and questions." (TX 185)
Haynie's technical interview lasted approximately 30 minutes,
during which they discussed the nature of the organization and the
nature of their product. (TX 186) Haynie recounted some concerns
from that interview:
He didn't bring himself forward...he wasn't very
inquisitive about the type of work we were doing....he
was just very agreeable to everything and didn't strive
to learn more about the job. I just concluded that he was
not aggressive in nature in wanting to find out
information and stuff which would be a very critical part
of our job ... I wasn't impressed and didn't feel he
would be a good fit ... I didn't feel like he had the
communications skills that would be necessary to deal
with customers on the telephone; I didn't feel like he
was aggressive enough to go out and learn all the things
that he needed to learn and the pace and rate he needed
to learn them.
(TX pp. 186-187)
Nadia Carey did not testify at the hearing, but
provided responses to Complainant's interrogatories. These
responses are at Appendix 2 to Complainant's Post-Trial Brief.
Carey was, at the time, a customer support
engineer at Respondent and was the employee whose position
Respondent sought to fill. Carey stated: "I discussed my
impression of the interview with Alain Mouyal and Lee Oatley either
the day of the interview or the next day. I said that though
[Complainant] obviously had a lot of experience in the pipe support
analysis field, I did not think it was relevant to our
applications." [Q5] Carey also stated that she did not share
her technical evaluation about Complainant with anyone outside the
Respondent Corporation. [Q15(d)]
Carey stated that she found out that she would
be staying with Respondent on December 20, 1995. She stated that
she and Doug Grant communicated regularly and worked closely
together in providing "more efficient customer support."
[Q18] Carey was not asked in these interrogatories about her
knowledge of Complainant's prior claims under the ERA. In her May
16, 1996 Affidavit, Carey stated: "At no time did I ever
contact [Complainant's] stated references or his previous
employers. Furthermore, I never discussed with [Complainant] any
prior litigation or claims brought by [Complainant]. My evaluation
of [Complainant] was limited exclusively to his application and
resume as well as his interviews." (CX 15)
Complainant met again with Spray after the
technical interviews were complete. Complainant testified that
Spray told him to call back 8 days later on December 28, 1995. (CX
6) Complainant called Spray on December 28, 1995, and again on
January 4, 1996 and January 8, 1996. Each time he was told that a
decision had not yet been made. (CX 6) When he called on January
8, Spray told him to call again on January 17. On January 17,
Spray told Complainant to call Oatley directly, which he did,
several times. Complainant testified that finally, on January 31,
1996, Oatley told him that Respondent would not offer him a
position. (CX 6)
Complainant relies heavily on a document
prepared by Respondent, which he obtained pursuant to a Freedom of
Information Act request, contained in the record at CX 7. The
document is titled "Management Review". At the top it
indicates that Complainant's application information was reviewed
by Lee Oatley, and the box labeled "desire interview" is
checked off. Below that, the form has Lee Oatley listed in the
"interviewer" box, and "[check mark] choose better
qualified candidate" written in the "Reject -
Reason" box. The "Dates" box of the same row on the
form with Complainant's rejection reads "12/20/95 12:55
p.m." Complainant argues that this establishes that he had
already been rejected at 12:55 p.m., which was before his technical
interviews.
According to the five Respondent employees who
testified, submitted affidavits or answered interrogatories (Spray,
Oatley, Carey, Mouyal and Haynie), none had any knowledge of
Complainant's protected activity, and they denied having any
knowledge that Complainant had filed claims under the Act in the
past.
Complainant's February 6, 1996 complaint filed
with the Department of Labor is contained in the record at CX 6.
Respondent submitted a letter dated March 28, 1996 to the
Department of Labor, setting forth its position concerning the
charge. (CX 12) Respondent denied that Complainant was
discriminated against in violation of the Act, summarizing that
Complainant was not hired because
[his] experience was too focused and narrow for its
broader needs; his communication skills were inadequate
and not suited for a position in a customer services
organization; he had no experience with CAD; he had
limited potential to learn the piping and equipment
portion of the plant design products which were
Respondent's highest priority.
(CX 12) "More importantly," Respondent noted,
"Respondent was able to satisfy its structural engineering
requirements with current Intergraph personnel." (CX 12)
ISSUES
The following issues are presented for
resolution:
(1) Whether Complainant is an Employee within the meaning and
coverage of the Act;
(2) Whether Respondent is an Employer within the meaning and
coverage of the Act;
(3) Whether Respondent's decision to deny employment to
Complainant was based on activities which Complainant
engaged in which are protected under the Act.
PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW
ISSUE 1
WHETHER COMPLAINANT IS AN EMPLOYEE WITHIN
THE MEANING AND COVERAGE OF THE ACT
Respondent points out that Complainant was never
an actual employee of Respondent, and that cases cited under the
Act deal with discharges, not alleged refusals to hire. Respondent
thus argues that Complainant "has absolutely no standing under
this statute to bring a claim against [Respondent], because he was
never an employee." (Respondent's Closing Argument at 26) To
the contrary, however, I note that the Secretary of Labor applies
the employee protection provisions of the Act to applicants for
employment, in addition to employees. See e.g. Samodurov
v. General Physics Corp. , 89-ERA-20 (Sec'y Nov. 16, 1993). I
therefore find that Complainant is an "employee" who may
properly bring a claim under the employee provisions of the Act
based on Respondent's alleged discriminatory failure to hire him.
ISSUE 2WHETHER RESPONDENT IS AN EMPLOYER WITHIN THE MEANING
AND COVERAGE OF THE ACT
Respondent argues that Complainant has not
proved that it is an "employer" under the Act, as no
evidence was presented showing that it is a licensee or an
applicant for a license from the NRC. (See Respondent's Closing
Argument at 28)
The Act specifically includes as
"employers", "a contractor or subcontractor" to
a licensee of the NRC. (42 USC § 5851(a)(2)(C)). (See also
Complainant's Closing Argument at 39) The record establishes that
Respondent has a wide variety of clients for its computer expertise
(TX 247-8), including a specific client in Stone & Webster
Engineering Company. (TX p. 129) Stone & Webster is, and has
been, a contractor at a number of nuclear power generating plants
nationwide. Respondent's relationship with Stone & Webster,
relative to the nuclear industry, is as a subcontractor, providing
software and technical solutions for Stone & Webster's pipe support
problems. (TX pp. 129-30) Thus, I find that Respondent is an
employer covered under the Act, as a subcontractor to a licensee of
the NRC.
ISSUE 3WHETHER RESPONDENT'S DECISION TO DENY EMPLOYMENT TO
COMPLAINANT WAS BASED ON ACTIVITIES WHICH COMPLAINANT ENGAGED
IN WHICH ARE PROTECTED UNDER THE ACT
Regarding whistleblower cases generally, the
Secretary has explained that "[a]fter a case has been fully
tried on the merits, the ALJ's job is to weigh all the evidence and
decide whether the Complainants have proven by a preponderance of
the evidence that Respondent intentionally discriminated against
them because of protected activities." Jackson v.
Ketchikan Pulp Co. , 93-WPC-7 & 8 (Sec'y March 4, 1996), slip
op. at 4-5 n.1. In order for Complainant to make such a showing,
he must prove that the Respondent knew of his protected
activities5 .
Complainant may prove Respondent's knowledge by direct or
circumstantial evidence, however some evidence is required; mere
inference, assertion, or supposition is insufficient. See
Mosley v. Carolina Power & Light Co. , 94-ERA-23 (ARB August
23, 1996); Samodurov v. General Physics Corp. , 89-ERA-20
(Sec'y Nov. 16, 1993); Bartlik v. Tennessee Valley
Authority , 88-ERA-15 (Sec'y Apr. 7, 1993).
I find that Complainant has failed to prove that
Respondent or any of its employees were aware of his protected
activities. Complainant admitted at the hearing that he never told
any Respondent employees about his protected activities (TX 52,
87), and all of Respondent's employees testified credibly (or
answered interrogatories) that they were unaware of Complainant's
protected activities.
Complainant argues that his case against Nuclear
Power Services received a lot of publicity in the local newspaper,
and asserts that Alain Mouyal may have read about it. (TX 40)
This assertion is entirely speculative and unsubstantiated. Mouyal
responded, by interrogatory answer, that he never read about
Complainant's case, and had no knowledge of it. Complainant also
argues that Mouyal asked questions during his technical interview
which prove his knowledge of Complainant's protected activities.
Mouyal's questions, however, were based on information clearly
contained in Complainant's own resume. His questions suggest no
knowledge of Complainant's protected activity. Finally, Mouyal
states that he did not contact any of Complainant's previous
employers and did not discuss Complainant's previous litigation
with him. Complainant's assertion that Mouyal knew of his
protected activity is completely unsubstantiated by any credible
evidence, direct or circumstantial.
As for the most crucial piece of evidence upon
which Complainant relies, the Management Review Form (CX 7), I find
that it proves nothing. More specifically, it does not show that
Complainant was rejected before he was interviewed. Spray
testified credibly that he first dated the form on October 17, 1995
when he initially received Complainant's resume and the supporting
documents. (TX 213) Spray explained that the notations show that
Complainant's interview was scheduled to begin at 12:55 p.m. on
December 20. Finally, Spray explained that the reason for
Complainant's rejection was not entered into the form until late
January, when Oatley told Complainant that he would not be extended
an offer. In light of this credible explanation by Oatley, I find
that Complainant's Exhibit 7 does not establish that Complainant
was rejected prior to the interviews, nor that he was rejected
because of his protected activities.
Oatley also testified credibly regarding the
importance which Respondent placed on telephone and communication
skills in filling the position. (TX 147-148) He testified that at
the time Complainant was interviewed, Respondent had not yet
determined that Carey would be continuing her employment and that
Doug Grant would be transferred to the PBS division.
Additionally, even if Complainant had
established that Respondent knew about his protected activity and
that his protected activity was a motivating factor in the
decision not to hire him (which, I have found, has not been
established), Respondent has presented "clear and convincing
evidence" that Complainant would not have been hired in the
absence of his protected activity. See 42 U.S.C. §
5851(b)(3)(D). Specifically, the record is clear that Respondent
did not wind up hiring an outside person for the position; Carey
remained at the position and Grant was transferred and assists her
with her duties. As Respondent's witnesses explained, credibly,
even if Respondent had found Complainant qualified, Respondent
nonetheless would have filled the position internally rather than
hire Complainant, once they discovered that retaining Carey was an
option. (TX 117, 160-164) I find this to be clear and convincing
evidence that, even if Complainant was able to prove that his
protected activity was a motivating factor, Respondent would not
have hired him for the position in any event.6 See Johnson
v. Bechtel Const. Co. , 95-ERA-11 (Sec'y September 28, 1995).
In summary, Complainant has failed to establish
that any of Respondent's employees were aware of his protected
activities. All five of Respondent's employees testified credibly
that they had no such knowledge, and Complainant admitted he never
told them about his protected activities. The
"pinpointed" questions by Mouyal, upon which Complainant
relies, were based on information provided in Complainant's resume,
which contains no indication of his protected activities. The
Management Review form, upon which Complainant relies upon most
heavily, in light of Spray's testimony, does not establish that
Complainant had been rejected before he was interviewed. Finally,
Respondent has presented clear and convincing evidence that
Complainant would not have been hired even if he had been
qualified, since Respondent was able to fill the vacancy
internally.
Complainant has therefore failed to establish
entitlement to any relief under the whistleblower protection
provisions of the ERA.
RECOMMENDED ORDER
Based on the foregoing, it is recommended
that the complaint of SYED M. A. HASAN be DENIED in
its entirety.
PAUL H. TEITLER
Camden, New Jersey
NOTICE:
[ENDNOTES]
1
2
3
4
There are three discrete activities that analysts might
be involved with: one is testing new software to make
sure that it works the way the structural engineer would
want it to work; two is being able to train new users on
the use of the software package; and three would be the
ongoing technical support conducted primarily by
telephone when customers encounter problems after they
are using the software.
(TX 106).
5
6
