Complainant alleges that he applied "for a
job as a civil/structural/pipe support engineer" with Respondent. The Complaint itself does not
allege the specific dates he applied to Respondent, only that he "applied many times." He
filed this Complaint with the Secretary of Labor alleging discrimination and retaliation based on
Respondent's failure to hire him on November 15, 1999.
The complaint was investigated and found to have no merit by the Secretary of
Labor on December 17, 1999. Complainant filed objections and requested a hearing before an
Administrative Law Judge on December 21, 1999. The case was referred to the Office of
Administrative Law Judges on January 24, 2000.
[Page 2]
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).
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 .
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.
[Page 3]
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 that employer continued to seek applicants from persons of complainant's
qualifications. Id.
Complainant alleged in his March 13, 2000, "Motions to Disqualify
Respondent Sargent & Lundy's Attorney/Motion for Default Judgment and For Sanctions Against
Respondent Sargent& Lundy" and in his July 10, 2000, "Motion for Default Judgment
Against Respondent Sargent & Lundy" that he sent his resume to Sargent & Lundy by fax in
response to an ad on June 15, 1998, and by mail on May 19, 1999, July 13, 1999, August 31, 1999,
October 16, 1999, December 17, 1999, and January 3, 2000. Complainant does allege the first
element required to establish a prima facie case of discriminatory refusal to hire. Complainant further
alleges the second element, that he was not hired by Respondent. In his July 10, 2000, "Motion
for Default Judgment Against Respondent Sargent & Lundy," Complainant alleges that between
May 1999 and November 1999, Respondent "has hired over forty civil/structural
engineers" and "has hired additional engineers (in Civil/Structural/Pipe Support Group)
even after November 1999." Thus, Complainant does allege the third element required to
establish a prima facie case of discriminatory refusal to hire; that the position remained open and
Respondent continued to seek applicants of Complainant's qualifications. As such, Complainant has
alleged a prima facie case of adverse action on the part of Respondent and has met the second
requirement.
In satisfaction of the third requirement, Complainant alleges that he was not
hired by Respondent in retaliation for engaging in a protected activity. To satisfy the third element,
Complainant must show that one or more employees of Sargent & Lundy who had substantial input in
the hiring decision had knowledge of the protected activity during the relevant time period.
Id . at 6-7; Floyd v. Arizona Public Service Co. , 90-ERA-39, 5 (Sec'y Sept. 23,
1994). Complainant does not allege this. In his November 15, 1999 complaint he alleged only that
"Sargent & Lundy has deprived me FOR YEARS, of my livelihood (REFUSING TO HIRE
ME), for reporting safety concerns to the NRC." He also alleges in his complaint that while
working at the La Salle Nuclear County Station several of his former colleagues were aware of his
ERA protected activities. Complainant had filed other complaints against employers under the ERA.
Complainant's statements, taken as true, do not amount to a prima facie case
that Respondent had knowledge of Complainant's protected activity. Complainant does not allege
that any employee responsible for, or having input in, the hiring practices of Respondent had any
knowledge of his protected activity. The only people Complainant alleges to have knowledge of his
protected activity are former colleagues working with him at the plant. Moreover, he does not say
which company these individuals work for. Complainant has failed to allege the third requirement for
a prima facie case of retaliation.
[Page 4]
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 that
Respondent had knowledge of the protected activity, 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). 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 Sargent & Lundy while working for Commonwealth Edison at the La Salle
Nuclear Station. Sargent & Lundy was a contractor to Commonwealth Edison at this time.