Because the record contains sufficient evidence for Hasan to prevail on all elements, it is not appropriate to dismiss the case on summary decision. I respectfully dissent.
A. LOUISE OLIVER
Administrative Appeals Judge
[ENDNOTES]
1 The ERA provides, in pertinent part, that "[n]o employer may discharge any employee or otherwise discriminate against any employee with respect to his compensation, terms, conditions, or privileges of employment because the employee . . . [notifies a covered employer about an alleged violation of the ERA or the Atomic Energy Act (AEA) (42 U.S.C. § 2011 et seq. (2000)), refuses to engage in a practice made unlawful by the ERA or AEA, testifies regarding provisions or proposed provisions of the ERA or AEA, or commences, causes to be commenced or testifies, assists or participates in a proceeding under the ERA or AEA]." 42 U.S.C.A. § 5851 (a)(1) (West 2003). The ERA covers applicants for employment, like Hasan, as well as employees. Samodurov v. Gen. Physics Corp., No. 89-ERA-20, slip op. at 4 (Sec'y Nov. 16, 1993).
2 In that case, this Board affirmed the ALJ's recommended decision granting summary decision to Enercon. Hasan v. Enercon Servs., Inc., ARB No. 04-045, ALJ No. 2003-ERA-31 (ARB May 18, 2005).
3 ALJ File, Tab 70 (Enercon's Supplemental Motion for Summary Decision (Supp. Mot.)), Tab 3, Attachment 1, p. 4.
4 Id. at pp. 5-8.
5 Supp. Mot. Tab 3, pp. 1-3.
6 Supp. Mot. Tab 4, Att. 1, p. 4.
7 Id. at pp. 5-10.
8 Supp. Mot. Tab 4, p. 9.
9 Id.at pp. 1-3.
10 Id. at Att. 1, pp. 15-20.
11 Supp. Mot. Tab 17; Nov. 2, 2004 Transcript (TR) 26.
12 R. D. & O. at 2.
13 Id.
14 Aug. 17, 2004 TR 25.
15 R. D. & O. at 3.
16 Id. Hasan argued below, and to us as well, that the ALJ erred by not ordering Enercon to provide him with the "entire hiring records" and "other [unspecified] pertinent personnel documents" and "each and every document (in the possession of Enercon)" concerning the 16 engineers. ALJ File, Tab 71, p. 7; Brief at 1, 7, 8. Like the ALJ, we are not convinced that Hasan needed the entire personnel file of the newly hired engineers. The ALJ found that though the personnel files might contain relevant information, "disclosure of the entire files could easily disclose personal, medical, financial, or other similar data that would only serve to annoy or embarrass the new hire which cannot be condoned." R. D. & O. at 15. The ALJ did not abuse his discretion in denying Hasan's overly broad and unduly burdensome request. See Hasan v. Burns & Roe Enters., Inc., ARB No. 00-080, ALJ No. 2000-ERA-6, slip op. at 3-4 (ARB Jan. 30, 2001).
17 ALJ File, Tab 36.
18 ALJ File, Tab 39 at 5, 16-17.
19 Supp. Mot. at 3.
20 ALJ File, Tab 71.
21 See 29 C.F.R. § 24.8 (2006); Sec'y's Order No. 1-2002, 67 Fed. Reg. 64,272 (Oct. 17, 2002) (delegating to the Board the Secretary's authority to review cases under the statutes listed in 29 C.F.R. § 24.1(a), including the whistleblower protection provisions of the ERA).
22 Seetharaman v. Gen. Elec. Co., ARB No. 03-029, ALJ No. 2002-CAA-21, slip op. 3 (ARB May 28, 2004); Demski v. Ind. Mich. Power Co., ARB No. 02-084, ALJ No. 01-ERA-36, slip op. at 3 (ARB Apr. 9, 2004).
23 Seetharaman, slip op. at 4, citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986).
24 Seetharaman, slip op. at 4.
25 Id., citing Anderson, 477 U.S. at 256; see also Fed. R. Civ. P. 56(e).
26 Seetharaman, slip op. at 4, quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
27 Seetharaman, slip op. at 4; Demski, slip op. at 3. See also Hasan v. Southern Co., Inc., ARB No. 04-040, ALJ No. 03-ERA-32, slip op. at 3-4 (ARB Mar. 29, 2005) (Hasan II).
28 42 U.S.C.A. § 5851(b)(3)(C); Hasan II, slip op. at 2, 4; Demski, slip op. at 3; Kester v. Carolina Power & Light Co., ARB No. 02-007, ALJ No. 00-ERA-31, slip op. at 5-8 (Sept. 30, 2003).
29 Hasan v. U.S. Dep't of Labor, 298 F.3d 914, 916-917 (10th Cir. 2002); see also Hasan v. Sargent & Lundy, ARB No. 03-030, ALJ No. 2000-ERA-7, slip op. at 3 (ARB July 30, 2004) (Hasan III); Samodurov, slip op. at 9-10 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)).
30 R. D. & O. at 6.
31 Id. at 16-17.
32 Id. at 16.
33 Id. at 5, 17.
34 R. D. & O. at 13.
35 Id. at 16-17. Enercon filed a motion in limine on September 27, 2004, that requested the ALJ to exclude any evidence pertaining to the unadvertised positions because such evidence would not be relevant to the allegations in Hasan's complaints. ALJ File, Tab 45. Inexplicably, the ALJ did not rule on this motion.
36 Supp. Mot. Tab 3, Att. 1, pp. 5-6; Tab 4, Att. 1, pp. 5-6.
37 Supp. Mot. Tab 3, p. 1; Tab 4, p. 1.
38 Indeed, Hasan has not asked us to examine whether Enercon refused to hire him for the 16 unadvertised positions it filled. Like his two complaints, Hasan's brief to us argues only that Enercon refused to hire him "for the available/ADVERTISED engineering positions." He writes, "It is abundantly clear that I applied for engineering jobs, based on Enercon's advertisements . . . on the ‘Internet.'" And, "Enercon . . . [violated the ERA] by refusing to hire me . . . FOR THE ADVERTISED/AVAILABLE ENGINEERING POSITIONS." Brief at 4, 6, 7, 9.
39 Supp. Mot. at 7.
40 Id. Tab 14, 16.
41 Supp. Mot. at 44.
42 Enercon Brief at 26.
43 ALJ File, Tab 39 at p. 5; Hasan Brief at 4.
44 Supp Mot. Tab 3, Att. 1, p. 4; Tab 4, p. 19-20 (italics supplied).
45 Enercon Brief at 26.
46 Supp. Mot. Tab 16.
47 Supp. Mot. Tab 14.
48 Majority at 4 n.16. Our precedent permits access to personnel files, see Khandelwal v. S. Cal. Edison, ARB No. 98-159, ALJ No. 1997-ERA-6, slip op. at 5 n.4 (ARB Nov. 30, 2000) (citing Lyoch v. Anheuser-Busch Co., Inc., 164 F.R.D. 62, 68-69 (E.D.Mo. 1995)), and makes clear that "the most limiting alternative under the rules – preclusion of disclosure . . . altogether" should be "rare," and justified by good cause shown, U.S. Dep't of Labor v. Nurses PRN of Denver, ARB No. 97-131, ALJ No. 94-ARN-1, slip op. at 9-10 (ARB June 30, 1999) (analyzing objection to further discovery under rules for protective order under Federal Rule of Civil Procedure 26(c)); see also Pac. Gas & Elec. v. United States, 69 Fed. Cl. 323, 325 (Fed. Cl. 2005) ("[T]he proper standard for discovery requests is to balance the burden on the interrogated party against the benefit to the discovering party of having the information," and "while a court may limit discovery, the court should do so based on evidence of the burden involved, not on a mere recitation that the discovery request is unduly burdensome"); Flanagan v. Wyndham Int'l, Inc., 231 F.R.D. 98, 102-03 (D.D.C. 2005) ("[C]ourts generally employ a balancing test, weighing the burdensomeness to the moving party against the deponent's need for, and the relevance of, the information being sought."); see also Fed. R. Civ. P. 26(b)(2) (requiring courts to balance "the burden or expense of the proposed discovery" against "its likely benefit, taking into account the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues"). Because the majority does not state any good cause justifying total preclusion of access to these personnel files, the majority should have found that the ALJ's order was an abuse of discretion. Indeed, the ALJ could have given Hasan access to those items in the personnel file that Hasan actually requested – namely, those portions of the personnel file that pertained to the hiring process – without even risking disclosure of "personal medical, financial, or other similar data" relating to the hired engineers, data as to which Hasan expressed no interest in the first place.
49 See, e.g., Sua Sponte Appellate Rulings: When Courts Deprive Litigants of an Opportunity to be Heard, Barry A. Miller, 39 San Diego L. Rev. 1253, 1297 (2002) (surveying reasons courts offer for sua sponte rulings, and suggesting that "due process," or in any case "fairness," requires appellate bodies "to offer parties a meaningful opportunity to be heard before an issue is decided").
50 Because a complainant is not required to include all his evidence in his complaint, any absence of evidence about the "unadvertised" jobs would not seem relevant to the determination whether the Hasan did, or did not, identify those jobs in his complaint(s) as a subject for legal action. In any case, and even if one were to accept the majority's distinction between the "advertised" and "unadvertised" jobs, Hasan's application letter of October 1, 2004 (attached to his last complaint) included a specific reference to the unadvertised jobs. Moreover, Enercon did not argue that Hasan did not apply for those jobs. See Enercon response brief at 30 ("Enercon is not asserting . . . that Complainant failed to apply"). Thus evidence that Hasan applied for those jobs was, in fact, included in the record; and Enercon has specifically waived any argument that it was not.
51 Hasan's motion to amend specifically stated that "I am requesting Enercon to consider me for engineering jobs (whether advertised or not (informal methods of hiring)) . . . . I, very humbly, request this court to permit me, for judicial economy, to amend my ERA complaint . . . so that it covers the period from May 3, 2004 to the commencement of the hearing." ALJX 53 (Complainant's Motion to Amend the ERA Complaint) (emphasis added). Construing Hasan's pleadings liberally, as required by our precedent, one easily could find here either a request to include the unadvertised jobs in the complaint, or at least a belief that the jobs already were covered.
52 See, e.g., Hasan v. Sargent & Lundy, ARB No. 01-001, ALJ No. 2000-ERA-7 (ARB Apr. 30, 2001) (citing Haines v. Kerner, 404 U.S. 519, 520 (1972); see also Smith v. W. Sales & Testing, ARB No. 02-080, ALJ No. 2001-CAA-17, slip op. at 12 (ARB Mar. 31, 2004) (citing Hasan v. Sargent & Lundy and Haines for proposition that pro se complaints should be liberally construed).
53 A liberal reading of Hasan's reference to the "available/advertised" jobs would understand that phrase as shorthand for the two categories of jobs at issue: available (but unadvertised), and advertised. Indeed, Hasan uses the phrase in this manner in his August 2004 motion for default judgment, which states: "Enercon is not willing to provide [discovery including the names] of the Respondent's officials/employees who refused to hire me for [i] the engineering positions that Enercon never advertises (informal advertising) and for [ii] the structural engineering positions advertised. . . . In short, Enercon is engaged in illegal fraud by telling, repeatedly, the U.S. government that there were no engineering positions available/advertised." Motion at 3 (emphasis and numbering added).
54 See, e.g., Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978) (plaintiffs made prima facie case where they proved they were in a protected class, were qualified, "did everything within their power to apply for employment," "were not offered employment," and employer continued to seek persons with similar qualifications); Velez v. Janssen Ortho, LLC, 467 F.3d 802, 807 (1st Cir. 2006) (plaintiff alleging retaliatory failure to hire "must show that she was not hired"); McLaren v. Morrison Mgmt. Specialists, Inc., 420 F.3d 457, 462 (5th Cir. 2005) ("in a non-selection or failure to hire case, [plaintiff] must show that . . . (3) he was not selected"); Cichon v. Exelon Generation Co., LLC, 401 F.3d 803, 812 (7th Cir. 2005) (plaintiff "produced sufficient evidence to make out a prima facie case on the failure to hire portion of his retaliation claim when he demonstrated that . . . 3) he was not hired"); Cooper v. Southern Co., 390 F.3d 695, 724 n.16 (11th Cir. 2004) (in Title VII failure-to-promote case, plaintiff can establish prima facie case by showing "(3) he was denied the position"); EEOC v. Joe's Stone Crabs, Inc., 296 F.3d 1265, 1273 (11th Cir. 2002) ("In a traditional [Title VII] failure-to-hire case, the plaintiff establishes a prima facie case by demonstrating . . . (3) . . . she was not hired"); Buchholz v. Rockwell Int'l Corp., 120 F.3d 146, 150 (8th Cir. 1997) (in ADEA (Age Discrimination in Employment Act) failure-to-hire case, referring both to defendant's "failure to hire" and to defendant's "nonselection" of plaintiff).
55 Analysis of the majority's conclusion that Enercon did not reject Hasan is made more challenging by the majority's failure to provide its reasons for that conclusion. In the interests of brevity, I provide only this brief analysis and do not attempt to survey other possible reasons for the majority's conclusion.
56 Moreover, even if this issue is resolved against Hasan and the "unadvertised" jobs are treated separately, there is sufficient evidence for Hasan to survive summary decision. Enercon asserted that it did not hire Hasan for those jobs because it did not consider him, and that it did not consider him because it knew of qualified candidates who took precedence under its hiring preference system. But Hasan points to several pieces of evidence that, taken together, suggest that Enercon did not have (or did not follow) the rigid hiring preference system that it claimed. Although this evidence does not mandate a finding that Enercon's reason was a pretext for discrimination, in my view it is sufficient to support such a finding; it therefore presents an issue of fact requiring a hearing.