in response to an internet advertisement
for a civil/structural engineer position. 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. However, Complainant does not allege the third element, that
the position remained open and Respondent continued to seek applicants of Complainant's
qualifications. As such, 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 alleges that he was not
hired by Respondent in retaliation for engaging in a protected activity. To meet the requirement of
the third element, Complainant must show that one or more employees of Florida Power and Light
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 17, 1999 complaint he alleged only that "[b]ased on my
prior whistle blowing activities protected under ERA, FLORIDA POWER & LIGHT COMPANY is
[Page 4]
depriving me of my livelihood, FOR REFUSING TO HIRE ME, IN RETALIATION for reporting the
safety concerns to the United States Nuclear Regulatory Commission (NRC)...." Complainant,
in his February 22, 2000, Response to Respondent's Motion to Dismiss, states that counsel for
Respondent has been representing Respondent in ERA cases "for years" and that
Complainant had filed other complaints against employers under the ERA. In addition, Complainant
states that his name is on the internet at the Office of Administrative Law Judges web site as suing
companies for ERA violations.
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 person Complainant alleges to have knowledge of his
protected activity is counsel for Respondent. 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 or 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/lb
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 his former employer.
2 Claimant is unclear as to whether he
sent his resume on November 5 or November 6 as he states both in his Complaint.