                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             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Precedential or Non-Precedential: Precedential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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                                      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)
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.




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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.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 accompanying cover
letter referring to his whistleblowing activity. Again, Hasan did
not receive an employment offer.


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

                               3
       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

                               4
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

                                5
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


       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.

                                 6
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

                                 7
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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