Complainant alleges
that on April 4, 1999 he faxed and mailed his resume to Raytheon; on June 22, 1999 he mailed his
resume to Raytheon; on June 24, 1999 he faxed his resume to Raytheon, and on November 17, 1999
he sent a cover letter and resume to both Raytheon and Commonwealth Edison, applying "for a
job as a civil/structural engineer" with both Respondents. Approximately two weeks after
Complainant sent his cover letter and resume to Respondents, he filed this complaint with the
Secretary of Labor alleging discrimination and retaliation based on Respondents' failure to hire him.
[Page 2]
The complaint was investigated by the Secretary of Labor and found to have no
merit on January 21, 2000. Complainant filed objections and requested a hearing before an
Administrative Law Judge on January 28, 2000. The case was referred to the Office of
Administrative Law Judges on February 01, 2000.
Applicable Law
Any employer who "intimidates, threatens, restrains, coerces, blacklists,
discharges, or in any other manner discriminates against any employee because the employee has: (1)
Commenced or caused to be commenced...a proceeding under on of the Federal statutes listed in
§ 24.1(a)..." is deemed to have violated the federal law and regulations in Part 24. 29
C.F.R. § 24.2(b).
Neither 29 C.F.R. Part 24 (whistle blower proceedings) nor 29 C.F.R. Part 18
(procedures for administrative law judge hearings) address dismissal for failure to state a claim;
therefore, the standards set out in the Federal Rules of Civil Procedure are applicable. Glenn v.
Lockheed , 1998 ERA 35 and 50 ( ALJ July 15, 1999). Under Federal Rule of Civil Procedure
12(b)(6), dismissal may be appropriate when the facts in the case fail to state a claim. Id. In
considering whether a dismissal is appropriate, the facts alleged in the complaint are taken as true,
and all reasonable inferences are made in favor of the non-moving party. If the factual allegations,
after having been accepted as true and construed most favorably on behalf of the non-moving party
present a cognizable claim if proved by a preponderance of the evidence, dismissal is not proper.
Jones v. City of Lakeland, Tennessee , 175 F.3d 410 (6th Cir. (Tenn.) 1999). However,
failure to allege a prima facie case is grounds for immediate dismissal. See Lovermi v.
Bell South Mobility, Inc. , 962 F. Supp. 136, 139 (S.D. Fla. 1997); Briggs v. Sterner ,
529 F. Supp. 1155, 1164 (S.D. Iowa 1981).
A. Elements and Burden of Proof
Complainant has the initial burden of proof in an environmental whistle blower
proceeding to make a prima facie case which shows that: (1) complainant engaged in a protected
activity; (2) complainant was subjected to adverse action; (3) respondent was aware of the protected
activity when it took the adverse action; and, (4) the evidence is sufficient to raise a reasonable
inference that the protected activity was the likely reason for the adverse action. Glenn ,
1998 ERA at 7. If Complainant has succeeded in establishing the foregoing, Respondent must
produce evidence of a legitimate, nondiscriminatory reason for the adverse action. Frady v.
Tennessee Valley Authority , 92-ERA-19 (Sec'y Oct. 23, 1995). The complainant bears the
ultimate burden of persuasion that Respondent's reasons are not the true reasons for the adverse
action, but a pretext for discrimination. Id . At all times, Complainant bears the burden of
establishing by a preponderance of the evidence that the adverse action was in retaliation for the
protected activity. Id .
[Page 3]
Complainant is proceeding in this matter pro se. While Complainant should not
be held to the same standard as an attorney and may be held to a less stringent standard, he must
nonetheless meet minimal pleading requirements. Salahuddin v. Jones , 992 F.2d 447, 449
(2d Cir. 1993), cert denied , 510 U.S. 902 (1993).
Complainant alleges that he engaged in a protected activity by his reporting of
safety concerns to the United States Nuclear Regulatory Commission. Complainant has established
the first element required to establish a prima facie case of retaliation.
The second requirement for a prima facie case of retaliation requires adverse
action on the part of the Respondent. When determining whether a complainant has established an
actionable adverse action in a failure to hire case, the framework of a prima facie case outlined in
McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802 (1973) applies. Webb v.
Carolina Power & Light Co. , 93 ERA 42, 12 (ALJ July 24, 1996) (aff'd, ARB August 26, 1997).
In order to establish a prima facie case of discriminatory refusal to hire, the complainant must show:
(1) that he applied and was qualified for a job for which the employer was seeking applicants; (2) that,
despite his qualifications, he was rejected; and (3) that, after his rejection, the position remained open
and the employer continued to seek applicants from persons of complainant's qualifications.
Id.
Complainant does not allege anywhere in his complaint that he applied for, or
sent his resumes in response to, a job in either company for which either employer was seeking
applicants. Moreover, he does not address this issue in his February 9, 2000 Response to
Respondent's [Commonwealth Edison] Motion to Dismiss, nor in his August 7, 2000 Response to
Show Cause Order. In this Response to Commonwealth Edison's Motion, he rehashes issues from his
prior litigation with Commonwealth Edison and alleges that his "pleadings DO meet minimal
requirements," and that if "Com Ed [were] serious, they would have appointed [him] to
an independent reviewer position" following his report of safety concerns. Additionally, while
Complainant addresses his qualifications by stating that he is "a Civil/Structural Engineer with
over twenty-three years of experience in the nuclear industry...," his qualifications are not at
issue because he has not addressed specific jobs for which Respondents were actually seeking
applicants. As these responses do not establish that he applied for a specific position for which the
employer was seeking applicants, Complainant has not met the first element required to establish a
discriminatory refusal to hire in relation to Commonwealth Edison.
In his March 3, 2000 "Response to Respondent's [Raytheon] Motion to
Dismiss AND to Stay Proceedings" and his August 7, 2000 "Response to Show Cause
Order," Complainant alleges that "I DID APPLY FOR JOBS IN RESPONSE TO
RAYTHEON'S ADVERTISEMENTS" and that "I still remember talking to Respondent
RAYTHEON'S employees in response to advertisements, for a position as a civil/structural/Pipe
Support engineer." Complainant does not, however, provide any more detail about these
advertisements in terms of the specific positions open, or the qualifications sought. In support of
these assertions, Complainant provides attachments of letters from Respondent thanking him for his
interest in the company, but these letters do not indicate that he applied for any specific position for
which Respondent was actually seeking applicants; they merely indicate that they received his
[Page 4]
resume. Moreover, the letters are from the years 1995 and 1997, dates not addressed by Complainant
in his Complaint. As such, I find that Complainant has not shown in his responses to Respondent's
motion, nor in his Response to Show Cause Order, that he applied for a job for which applicants were
sought; therefore, he does not meet the first element as to Raytheon.
Since Complainant does not establish that he applied for a job for which either
employer was seeking applicants, he is subsequently unable meet the second and third elements; that
he was rejected despite his qualifications and that the position remained open and the employer(s)
continued to seek applicants. Thus, Complainant has not alleged a prima facie case of adverse action
on the part of Respondent and has failed to meet the second requirement.
In satisfaction of the third requirement, Complainant must show that
Respondents were aware of the protected activity when they took the adverse action. As such,
Complainant has failed to allege the third requirement for a prima facie case of retaliation.
The fourth requirement to allege a prima facie case of retaliation by
Complainant is that there is sufficient evidence to raise a reasonable inference that the protected
activity was the likely reason for the adverse action. Because Complainant has not alleged a prima
facie case of adverse action, he has not met this requirement.
After a careful review of the record, Complainant has failed to set forth a prima
facie case of proscribed behavior, or provide a full statement of the acts and omissions, with pertinent
dates, which are believed to constitute a violation. 29 C.F.R. § 24.5(a)(2). In addition,
Complainant's Complaint, as pled, fails to state a claim upon which relief can be granted. Fed. R.
Civ. P. 12(b)(6).
B. Discovery
In his Response to Show Cause Order, Complainant argues that dismissal is
improper because he has not obtained discovery in this case. As Complainant has failed to establish
even a prima facie case, his discovery requests would become nothing more than fishing expeditions.
For example, although Claimant includes an attachment to his complaint specifically indicating the
dates and phone numbers of the more than eighty companies to which he faxed his resume, he is
unable to specify in either his complaint or in his subsequent responses, any particular job with either
company for which he applied and for which either employer was seeking applicants.
[Page 5]
Moreover, in the absence of a prima facie showing, a court has the discretion to dismiss a claim.
See generally McLaughlin v. McPhail , 707 F.2d 800, 807 (4th Cir. 1983).
Therefore, I find that Complainant's argument that dismissal is improper in the absence of discovery
is without merit.
Accordingly,
ORDER
It is ORDERED that the Complaint of Syed M A. Hasan be, and is hereby,
dismissed.
ROBERT J.
LESNICK
Administrative Law Judge
RJL/lab
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. §§ 24.8 and 24.9, as amended by 63 Fed. Reg. 6614
(1998).
[ENDNOTES]
1 Specifically, Complainant filed safety
complaints against a contractor providing services to Commonwealth Edison.