Under the circumstances, we find that the ALJ acted within the scope of his
authority by limiting discovery to relevant material, and that the ALJ's ruling was neither arbitrary
nor an abuse of discretion. Consequently, we leave it undisturbed.6See Robinson, supra.
1 This appeal has been assigned to a panel
of two Board members, as authorized by Secretary's Order 2-96. 61 Fed. Reg. 19,978 §5 (May 3,
1996).
2 The supervisor is no longer
employed by B&R and, to the best of B&R's knowledge and information, may be deceased. ALJX-1 at 7.
B&R's attorney was unable to locate any employee who could remember Hasan. Id. at 6.
4 As the Administrative Law Judge
("ALJ") noted below, Hasan has filed the following whistleblower complaints with the
Department of Labor: Hasan v. Commonwealth Edison Company and Estes Group, Inc., Case No.
2000-ERA-1, ARB Case No. 00-028 (Dec. 29, 2000); Hasan v. System Energy Resources, Inc., Case
No. 89-ERA-36 (Sec'y Dec. and Order, September 23, 1992); Hasan v. Nuclear Power Services, Inc.,
Case No. 86-ERA-24 (Sec'y Dec. and Order, June 26, 1991); Hasan v. Nuclear Power Services Inc.,
Case No. 86-ERA-36 (ALJ Dec. July 27, 1989); Hasan v. Becthel Power Corporation, Case No. 93-
ERA-40 (Sec'y Dec. and Order February 13, 1995); Hasan v. Bechtel Power Corporation, Case No.
93-ERA-22 (ALJ Dec. December 8, 1994); Hasan v. Bechtel Power Corporation, Case No. 94-ERA-
21 (Sec'y Final Order Approving Settlement, March 16, 1995); Hasan v. Bechtel Power Corporation,
Case No. 93-ERA-40 (ALJ Dec. Approving Settlement, December 9, 1994); Hasan v. Intergraph
Corp., Case No. 96-ERA-17, ARB Case No. 97-016 (Aug. 6, 1977); Hasan v. Sargent & Lundy,
Case No. 96-ERA-27 (ALJ Dec. November 4, 1996).
5 The ALJ explained to Hasan that
knowledge on the part of a supervisor may be imputed to the company, but knowledge on the part of a non-
supervisory employee is legally irrelevant. ALJX-1 at 67.
6 In the proceedings before the ALJ,
Hasan sought the names of every civil/structural engineer it employs so that he can identify those individuals
who he believes were aware of his previous whistleblowing activity. ALJX-1 at 61. Hasan now asserts that
he needs this information (as well as the employment history for each individual) so that he can establish that
he has been a victim of disparate treatment. Hasan's Initial Brief at p. 10. However, Hasan has not directed
our attention to any instance in which he proffered a coherent argument to the ALJ regarding the issue of
disparate treatment or explained how such an argument could be rationally advanced by obtaining a list of
all civil/structural engineers employed by B&R. Inasmuch as Hasan has not demonstrated that he made this
particular proffer to the ALJ, we cannot conclude that the ALJ erred in failing to consider it.
7 Hasan argues that B&R's
advertisements do not state that a professional license is mandatory and that anyone with experience in the
nuclear industry is capable of working in any other area of the power industry. Hasan's Initial Brief at 11.
Although Hasan argues that the advertisements do not require a professional license, he does concede that
the license is preferred. ALJX-1 at 19. However, B&R's actual reasons for not hiring Hasan are germane
only if Hasan can first establish the elements of a prima facie case. See Trimmer v. U.S. Dep't
of Labor, 174 F.3d 1098 (10th Cir. 1998). In view of our ruling that Hasan has not established a
prima facie case, we need not reach the question of whether B&R demonstrated that it would have
taken the same unfavorable action in the absence of Hasan's protected behavior.
8 Hasan takes issue with this finding
arguing that B&R had to know about his whistleblowing activities because he disclosed them in his
November 6, 1999 letter to the company. Hasan Initial Brief at 5. However, in his affidavit, Rothstein states
that he did not see that letter prior to making his decision on whether to hire Hasan. Hasan offered nothing
in rebuttal other than conjecture. Inasmuch as Rothstein was the official who decided not to hire Hasan, and
considering that he made that decision without seeing Hasan's November 6th letter, we agree with the ALJ's
finding on this issue.
9 Hasan has raised a number of other
arguments in this case. We have considered these arguments and conclude that they are without merit and
do not warrant discussion.