2014 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-30-2014

Syed Hasan v. US Department of Labor

Precedential or Non-Precedential: Non-Precedential

Docket 13-1886

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 13-1886

___________

SYED M.A. HASAN,

Petitioner

v.

UNITED STATES DEPARTMENT OF LABOR,

Respondent

*ENERCON SERVICES INC.,

Intervenor 

*(Pursuant to the Court’s Order dated 4/24/13)

____________________________________

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. 12-096)

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

January 23, 2014

Before: AMBRO, SHWARTZ and SCIRICA, Circuit Judges

(Opinion filed: January 30, 2014 )

___________

OPINION

___________

PER CURIAM

Syed M.A. Hasan petitions pro se for review of a decision of the Administrative 

Review Board (“ARB”). For the reasons below, we will deny the petition for review.
2

I.

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 engaged in protected whistleblowing activity under 

the ERA. Since engaging in the protected activity, Hasan has filed numerous complaints 

alleging that various NRC licensees have discriminated against him by failing to hire 

him.

In November 2003, Hasan responded to an internet advertisement placed by 

Enercon seeking an engineer.1 In his cover letter, Hasan referenced his whistleblowing 

activity and stated “[p]lease do not Discriminate and Retaliate against me.” In February 

2004, Enercon posted another internet advertisement, to which Hasan submitted a resume

and a cover letter referring to his whistleblowing activity. Hasan did not receive an 

employment offer for either position.

In May and July 2004, Hasan filed complaints against Enercon with the 

Occupational Safety and Health Administration raising claims of retaliatory failure to 

hire under the ERA. Subsequently, Hasan appeared before a Labor Department 

Administrative Law Judge (“ALJ”), who consolidated the two complaints.

2

 

 

1

Enercon is a consulting firm that places engineers with clients generating nuclear and 

other forms of energy.

2 Hasan has filed a total of four complaints against Enercon. The second and third 

complaints are at issue here. Hasan’s first complaint was filed against Enercon in May 
3

In 2012, the ALJ convened a seven-day evidentiary hearing and granted Hasan the 

opportunity to present evidence and examine Enercon witnesses.3 Subsequently, the ALJ 

issued a Decision and Order on Remand denying Hasan’s complaints against Enercon. 

The ALJ found that Enercon had not discriminated against Hasan on the basis of his 

protected status. Hasan appealed to the ARB, which adopted the ALJ’s findings that 

Hasan’s protected activity was not a contributing factor in Enercon’s employment 

decisions and affirmed the ALJ’s decision.4 Hasan now petitions this Court for review of 

the ARB’s disposition of his claims. 

II.

We may overturn a decision of the Secretary of Labor only if it is “arbitrary, 

capricious, an abuse of discretion, or otherwise not in accordance with the law.” Hasan 

 

2003. The ALJ denied relief on a motion for summary judgment, and the decision was 

subsequently affirmed by the ARB. Hasan filed a motion for reconsideration which the 

ARB denied. Hasan petitioned this Court for review, and we summarily affirmed. See

Hasan v. U.S. Dep't of Labor, No. 10-1288, 396 F. App'x 887 (3d Cir. October 6, 2010)

(nonprecedential). Hasan filed a fourth complaint against Enercon on December 19, 

2011, which the ALJ dismissed on summary judgment. After the ARB affirmed, Hasan 

filed a petition for review that is currently pending. See C.A. No. 13-3998.

3

This case has a lengthy history. In December 2004, the ALJ, after conducting 

discovery, granted Enercon’s motion for summary judgment, finding that Hasan had 

failed to show evidence of an adverse action against him. A divided ARB panel 

affirmed, and Hasan petitioned this Court for review. We vacated the ARB’s decision 

and remanded for further proceedings, holding that the ARB erroneously concluded that 

Hasan had failed to show that he was “rejected” given that Enercon had hired 16 

engineers during the relevant time period. Hasan v. U.S. Dep't of Labor, 545 F.3d 248, 

251-52 (3d Cir. 2008). Upon remand, the ALJ again granted summary judgment for 

Enercon, finding that Hasan failed to prove that his whistleblower status was connected 

to Enercon’s refusal to hire him. The ARB reversed the grant of summary judgment, 

holding that there were sufficient factual disputes regarding Enercon’s repeated rejections 

of Hasan to merit an evidentiary hearing. 

4

The Secretary of Labor has delegated authority to the ARB to issue final agency orders 

under the ERA. See 29 C.F.R. § 2.8.
4

v. U.S. Dep't of Labor, 545 F.3d 248, 251 (3d Cir. 2008) (citing 5 U.S.C. § 706(2)(A)).

Factual determinations will be set aside only if they are unsupported by substantial 

evidence. See 5 U.S.C. § 706(2)(E). Substantial evidence is “less than a preponderance 

of the evidence but more than a mere scintilla.” C & C Marine Maint. Co v. Bellows, 

538 F.3d 293, 297 (3d Cir. 2008) (citing Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir.

2004)). The substantial evidence standard applies to an ALJ’s credibility determinations. 

See Lin v. Attorney Gen. of U.S., 543 F.3d 114, 119 (3d Cir. 2008). We exercise plenary 

review over questions of law. See Hasan, 545 F.3d at 251 (3d Cir. 2008) (citing Doyle v. 

United States Sec’y of Labor, 285 F.3d 243, 249 (3d Cir. 2002)). Where, as here, the 

ARB adopts the ALJ’s findings of facts and legal conclusions, it is the ALJ’s 

determinations that we review. See Trafford Distribution Ctr. v. N.L.R.B., 478 F.3d 172, 

179 (3d Cir. 2007). 

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 prevail 

in a retaliation claim under the ERA, a complainant must demonstrate “by a 

preponderance of the evidence that the protected activity was a contributing factor in the 

adverse action alleged in the complaint.” C.F.R. § 24.109(b)(1).

III.

Upon review of the record, we conclude that substantial evidence supports the 

ARB’s conclusion that Hasan failed to establish that his past whistleblowing activity was
5

a contributing factor in Enercon’s decision not to hire him.

5

 We may not therefore 

disturb its decision that Hasan failed to establish that Enercon discriminated against him 

in violation of the ERA.

Regarding the advertised positions, the ALJ analyzed the testimony of numerous 

Enercon witnesses, including John Richardson, Enercon’s president and CEO, and 

Richard McGoey, its Director of Northeast Operations. Both Richardson and McGoey 

testified about Enercon’s hiring and placement practices. They stated that Enercon’s 

procedure is to fill positions with existing employees first, and, if none is available, to fill 

positions with individuals recommended by clients. If no existing employees or clientrecommended individuals are suitable or available, Enercon will consider individuals 

known to be high performers. Only if those resources are exhausted does Enercon go to 

its database of resumes, which it gleans, in part, from its internet advertisements. 

Importantly, Richardson testified that Enercon often advertised for jobs that did not exist 

as a method of obtaining additional resumes for its database. 

Hasan was not an existing employee, was not known to Enercon as a high 

performer, and had not been recommended by a client. Accordingly, his resume was 

collected by Enercon for in its database, which included 15,000 other resumes, including 

3,000 resumes for civil structural engineers. The ALJ, based upon the testimony of 

Richardson, McGoey, and David Studley (who placed the first advertisement in 

 

5

It is not disputed that Hasan engaged in a protected activity and that Enercon took an 

adverse action against him in failing to hire him. The only issue at dispute is whether 

Hasan’s engagement in the protected activity was the likely reason for the adverse action

against him.
6

question), concluded that Enercon did not ultimately hire anyone for the two advertised 

positions, and that, as a result, no evidence of discrimination existed.6

Hasan, in his communications with Enercon, stated that he was willing to work at 

any place, for any shift, and at any salary deemed reasonable. Accordingly, the ALJ and 

ARB considered Enercon’s reasons, if any, for not hiring Hasan for any of the 16 

positions it filled during the relevant time. We turn to that now. 

McGoey, who was aware of Hasan’s whistleblowing status as of May 30, 2003,7

hired six engineers during the relevant period. Robert Bryan, Vice President of Power 

Group at Enercon, hired six engineers during the relevant period. Jim Gannon, Director 

of Client Services, hired two engineers. Tien Lee, a principal engineer in charge of 

Enercon’s Oakland office, hired one engineer. Doug Whitson, a client service manager 

for Enercon, also hired one engineer. Of these five Enercon employees, the ALJ found 

that only McGoey was aware of Hasan’s whistleblower activity. To support this finding, 

the ALJ pointed to Richardson’s testimony that knowledge of Hasan’s whistleblowing 

activity had purposefully been restricted to himself, McGoey, and Whitmore in an effort 

to minimize the potential of such information being used against Hasan. 

 

6 One of the advertisements, while reflecting a real need at the time it was placed, did not

actually result in anyone being hired. The other advertisement was placed by Enercon in 

an effort to obtain additional resumes for its database and did not represent any actual 

need for engineers. 

7 Hasan asserted that McGoey knew of his status as of February 17, 2003, when he sent 

McGoey and Ken Whitmore, a senior civil structural engineer at Enercon’s Northeast 

Operations, a letter applying for an open position. The ALJ noted that the actual date was 

not important, as McGoey did not hire anyone prior to May 30, 2003. The ALJ further 

noted that, to the extent that the date was relevant, McGoey credibly testified that he put 

aside the letter and resume without reading them because he did not need any additional 

information regarding Hasan, who had previously interviewed with Whitmore. 
7

Having reviewed the record, we conclude that substantial evidence supports the 

ALJ’s conclusion that Bryan, Gannon, Lee, and Whitson did not know about Hasan’s 

whistleblowing and, therefore, could not have discriminated against Hasan in their 

respective hiring decisions.8 See 29 C.F.R. § 24.109. As we have described, evidence 

indicated that McGoey was aware of Hasan’s whistleblowing activity. But the ALJ 

found that the six individuals hired by him were all either known by Enercon or its client 

to be good performers. Furthermore, the ALJ found that McGoey did not rely upon the 

selected candidates’ resumes and, indeed, did not rely upon Enercon’s database of 

resumes to fill the open positions. Substantial evidence supports these findings. 

The ALJ also credited McGoey’s testimony that he followed Enercon’s protocol 

by forwarding Hasan’s initial resume to Enercon’s HR department to be entered into 

Enercon’s database.9 Indeed, Richardson and McGoey testified Hasan’s resume was 

 

8 Bryan testified about the merits of the six engineers he hired, two of which previously 

worked for the companies Enercon placed them with and four of which were hired for 

limited term positions. Bryan further testified that he never saw Hasan’s resume and was 

not aware of his whistleblowing activity. The two engineers hired by Gannon were 

already known by the respective clients and were identified as good performers; Gannon 

testified that, like Bryan, he never saw Hasan’s resume and was not aware of his 

whistleblowing activity. Lee testified that he had previously worked with the engineer he 

hired, knew him to be a skilled engineer, and hired him due to that knowledge and the 

client’s recommendation. Lee further testified that he was unaware of Hasan’s 

whistleblowing activity and that he did not consult the database. Whitson testified that 

the one engineer he hired was based his knowledge that he was a high performer. 

9 Hasan also asserted that he received a verbal employment offer from Whitmore, subject 

to McGoey’s approval, in January 2003. This alleged offer was addressed in Hasan’s 

first complaint against Enercon. See supra n. 2. In that case, the ALJ found that Hasan 

never mentioned this alleged offer in any subsequent correspondence with Enercon, and 

first mentioned it in his initial complaint against Enercon. The ALJ noted that McGoey 

denied the existence of an offer, noting that all employment offers are in writing and 

originate from the HR department. The ALJ, crediting this testimony, rejected Hasan’s 
8

treated in the same fashion as any other resume Enercon received. They further testified 

that no one was instructed to discriminate against him in any way. As noted, Richardson 

testified that knowledge of Hasan’s whistleblowing activity was restricted to himself, 

McGoey, and Whitmore in order to avoid potential discrimination.10 The ALJ further 

noted that the evidence supported a finding that Enercon actually encouraged 

whistleblowing activity by hiring and promoting past whistleblowers in Enercon’s 

organization, further calling into question Hasan’s allegations of discrimination. These 

findings, including the credibility determinations they rest on, are supported by 

substantial evidence, and we decline to set them aside. See 5 U.S.C. § 706(2)(E); 29 

C.F.R. § 24.109; Bellows, 538 F.3d at 297; Lin, 543 F.3d at 119.11 

In his brief, Hasan argues that the ALJ abused his discretion in his discovery and 

evidentiary decisions and that the ALJ was biased against him and attempted to 

“railroad” him. Hasan also asserted that the ARB committed fraud upon the court and 

otherwise acted illegally. The ALJ’s discovery and evidentiary decisions are reviewed 

for abuse of discretion. See, e.g., Indosuez Carr Futures, Inc. v. CFTC, 27 F.3d 1260, 

1267 n.4 (7th Cir. 1994) (discovery); Veritas Health Servs., Inc. v. N.L.R.B., 671 F.3d 

1267, 1273 (D.C. Cir. 2012) (evidentiary). A review of the record establishes that no 

 

assertions. The ALJ in the instant case agreed, and did not find it credible that such an 

offer was made.

10 Neither Richardson or Whitmore hired any engineers during the relevant period. 

11 Hasan also asserted that Enercon “blacklisted” him by refusing to hire him because of 

his whistleblowing activity. The ALJ found that Hasan failed to provide any factual 

support that anyone at Enercon was acting to prevent Hasan from finding employment. 

Rather, the ALJ found that Enercon used legitimate criteria in its hiring process and it 

treated Hasan in a non-discriminatory way in accordance with its procedures. The ALJ’s 

findings are supported by the record.
9

abuse of discretion occurred, and that the ALJ provided Hasan with ample opportunity to 

discover evidence and prosecute his claim. Hasan’s assertions of being “railroaded” by 

the biased ALJ and assertions of fraud and illegal behavior on the part of the ARB are

also belied by the record. Hasan has failed to provide any support for his assertion, and 

appears simply to disagree with the ALJ’s decisions. Hasan’s assertion that the ARB 

acted illegally by affirming the ALJ’s order is also without support. Finally, Hasan did 

not specify what “illegal” actions were taken by the ARB or what bias it may have had 

against him. Simply ruling against a party is not evidence of bias, and, despite Hasan’s 

assertions, nothing in the record suggests anything untoward. 

Accordingly, we will deny Hasan’s petition for review.