                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-25-2008

Hasan v. Secretary Labor
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3813




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                                                              NOT PRECEDENTIAL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 Pursuant to Third Circuit LAR 34.1(a)
                                September 24, 2008

               Before: AMBRO, FUENTES and FISHER, Circuit Judges

                             (Filed: September 25, 2008)
                                     _________

                                      OPINION
                                      _________

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.

                                       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.1 Over the course of

many years, Hasan has filed a series 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




       1
       See Petitioner’s Appx. at A33 n.2 (listing numerous non-meritorious
whistleblowing complaints filed by Hasan).

                                              2
accompanying cover letter referring to his whistleblowing activity. Again, Hasan did not

receive an employment offer.

       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.



                                              3
       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 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.



                                             4
       The ARB held that Hasan’s claims were limited to the positions advertised on the

internet, and did not include claims of failure to hire for the unadvertised positions.2

However, the 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 qualified individual for a position is a “rejection” for




       2
        In contrast, the ALJ held that Hasan’s claims included 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.

                                              5
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



                                               6
the petition 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.




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