2008 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-15-2008

Hasan v. Secretary Labor

Precedential or Non-Precedential: Precedential

Docket No. 07-3813

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Recommended Citation

"Hasan v. Secretary Labor" (2008). 2008 Decisions. Paper 284.

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 07-3813

 

SYED M. A. HASAN,

 Petitioner

v.

UNITED STATES DEPARTMENT OF LABOR

 

On Petition for Review of a Final Decision

and Order of the Administrative Review Board

for the United States Department of Labor

(ARB Case No. 05-037)

 

Submitted Under Third Circuit LAR 34.1(a)

September 24, 2008

Before: AMBRO, FUENTES and FISHER, Circuit Judges.

(Filed: September 25, 2008)
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Syed M.A. Hasan

112 Sanoma Drive

Madison, AL 35758

Pro Se Petitioner

Joan Brenner

Ellen R. Edmond

Paul L. Frieden

United States Department of Labor

Office of the Solicitor

200 Constitution Avenue, N.W.

Washington, DC 20210

Attorneys for Respondent

 

OPINION OF THE COURT

 

PER CURIAM

Petitioner Syed M. A. Hasan seeks review of the July 31,

2007, final decision and order issued by the Administrative

Review Board for the United States Department of Labor

(“ARB”), granting summary decision in favor of Enercon. For

the following reasons, we will grant the petition for review,

vacate the ARB’s decision, and remand the case for further

proceedings.
See Petitioner’s Appx. at A33 n.2 (listing numerous non- 1

meritorious whistleblowing complaints filed by Hasan).

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I. Background

This case arises under the whistleblower protection

provision of the Energy Reorganization Act of 1974 (“ERA”),

42 U.S.C. § 5851, which prohibits licensees of the Nuclear

Regulatory Commission (“NRC”) from discriminating against

individuals who engage in certain protected activity, such as

identifying nuclear safety concerns. Hasan is a civil/structural

engineer who has been employed by licensees of the NRC and

has participated in protected whistleblowing activity under the

ERA. Over the course of many years, Hasan has filed a series 1

of complaints with the United States Department of Labor

alleging that various employers, including Enercon, have failed

to hire him in retaliation for his participation in ERA-protected

activities.

In November 2003, in response to an internet

advertisement, Hasan sought employment with Enercon, a

consulting firm that places engineers with clients generating

nuclear and other forms of power. In his cover letter, Hasan

referred to his previous whistleblowing activity and stated

“[p]lease do not Discriminate and Retaliate against me.” Hasan

did not receive an employment offer. In February 2004,

Enercon again posted the internet advertisement and Hasan

again submitted an application with an accompanying cover

letter referring to his whistleblowing activity. Again, Hasan did

not receive an employment offer.
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In May and July 2004, Hasan filed complaints against

Enercon with the Occupational Safety and Health

Administration (“OSHA”) raising claims of retaliatory failure to

hire under the ERA. Hasan eventually appeared before a Labor

Department Administrative Law Judge (“ALJ”), who

consolidated the complaints. Hasan sought and received

discovery concerning Enercon’s hiring decisions from

November 2002 through August 2004. In response, Enercon

provided information about 16 civil/structural engineers it hired

during that period, including information about the reason for

the hiring decision and an explanation of why Hasan was not

selected. However, Hasan’s request for complete personnel files

was denied.

After discovery, Enercon moved for summary decision.

It argued, inter alia, that the internet advertisements to which

Hasan had responded were not for the purpose of hiring

applicants, but rather to accumulate a database of potential

candidates. It also argued that no engineers were hired as a

result of the internet advertisements, that the 16 engineers were

hired for unadvertised positions, and that they were chosen over

Hasan for legitimate, non-retaliatory reasons, including their

background, skills, and prior experience with either Enercon or

its clients. Enercon also contended that Hasan could not identify

a particular position for which he had not been hired, or that he

had been rejected and that someone else had been hired for any

advertised position.

The ALJ recommended granting summary decision in

Enercon’s favor for failure to set forth a prima facie case of

retaliatory failure to hire under § 5851. Hasan appealed the
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decision to the ARB. A majority of the ARB affirmed the grant

of summary decision in Enercon’s favor, but on different

grounds from those set forth by the ALJ. Hasan now petitions

this Court for review of the ARB’s disposition of his claims.

II. Analysis

Summary decision may be granted “if the pleadings,

affidavits, material obtained by discovery or otherwise, or

matters officially noticed show that there is no genuine issue as

to any material fact and that a party is entitled to summary

decision.” 29 C.F.R. § 18.40(d). We will overturn the ARB’s

decision only if it is “arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with the law.” 5

U.S.C. § 706(2)(A). We exercise plenary review in deciding

questions of law. Doyle v. United States Sec’y of Labor, 285

F.3d 243, 249 (3d Cir. 2002).

Section 211 of the ERA prohibits an employer from

retaliating against an employee for engaging in whistleblowing

activity. See 42 U. S. C. § 5851(a). To establish a prima facie

case of retaliation, a complainant must show that: (1) he

engaged in a protected activity; (2) the employer was aware of

that activity; (3) the employer took some adverse action against

him; and (4) the circumstances were sufficient to permit the

inference that the protected activity was a contributing factor for

the adverse action. See 29 C.F.R. § 24.5(b)(2)(i)-(iv); Doyle,

285 F.3d at 250.

The ARB held that Hasan’s claims were limited to the

positions advertised on the internet, and did not include claims
In contrast, the ALJ held that Hasan’s claims included 2

both the advertised and unadvertised positions. It granted

summary decision on the claims concerning advertised positions

on the ground that there were no actual job openings, so

Enercon did not take adverse action against Hasan with regard

to these positions. It granted summary decision on the claims

concerning unadvertised positions on the ground that Hasan

failed to show that Enercon refused to hire him because of his

previous whistleblower complaints.

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of failure to hire for the unadvertised positions. However, the 2

ARB did not grant summary decision on this basis because it

also held that a disputed issue of fact existed as to whether the

internet advertisements offered engineering jobs at all. The

ARB ultimately granted summary decision in Enercon’s favor

because it concluded that Hasan failed to demonstrate a disputed

issue of fact as to whether Enercon took adverse action against

him. Specifically, the ARB held that Hasan failed to raise a

material dispute as to “whether Enercon rejected him after he

applied for the advertised civil/structural engineering positions.”

Given the ARB’s conclusion that open job positions may

have existed, as well as what appears to be the undisputed fact

that Enercon did not hire Hasan for any position, we cannot

discern how the ARB reached the conclusion that Hasan failed

to make a sufficient showing that his employment applications

were “rejected.” We agree with the ARB’s dissenting opinion

that, in this context, a distinction – let alone a dispositive one –

between “rejection” and “failure to hire” is not sustainable. See

Dissent, Petitioner’s Appx. at A20-21. A failure to hire a
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qualified individual for a position is a “rejection” for purposes

of establishing a prima facie case. See Pivirotto v. Innovative

Sys., Inc., 191 F.3d 344, 352 (3d Cir. 1999) (citing McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)); see also

Hasan v. United States Dep’t of Labor, 400 F.3d 1001, 1004

(7th Cir. 2005) (McDonnell Douglas framework applies to ERA

claim that petitioner was not hired for an open job); Hasan v.

United States Dep’t of Labor, 298 F.3d 914, 917 (10th Cir.

2002) (same).

It is black-letter law that “an administrative order cannot

be upheld unless the grounds upon which the agency acted in

exercising its powers were those upon which its action can be

sustained.” SEC v. Chenery Corp., 318 U.S. 80, 95 (1943). If

an administrative agency makes an error of law, we must

“correct the error of law committed by that body, and after doing

so, . . . remand the case to the [agency] so as to afford it the

opportunity of examining the evidence and finding the facts as

required by law.” ICC v. Clyde S.S. Co., 181 U.S. 29, 32-33

(1901). In other words, we may not conduct an independent

search for another basis on which to uphold the ARB’s decision.

See id. Because the ARB’s sole basis for its summary

disposition of the case rests upon an erroneous conclusion of

law, we must remand the case to the ARB for further

proceedings in conformance with this opinion.

III. Conclusion

The law does not support the ARB’s conclusion that

Hasan failed to show he was “rejected” when he was not hired

for an employment position. We will therefore grant the petition
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for review, vacate the final decision and order, and remand the

case to the ARB for further proceedings. In so doing, we offer

no opinion on the merit of Hasan’s claims.