In Hasan v. Enercon Services, Inc., Administrative Review Board finds evidentiary hearing generally required in retaliation cases hinging on causation

In Hasan v. Enercon Services, Inc., a nuclear whistleblower case brought under the Energy Reorganization Act, the complainant, an engineer, alleged that Enercon Services, Inc., repeatedly failed to hire him for a number of engineering positions because he had prevailed a few years earlier in a whistleblower complaint against another company.  The ALJ dismissed the case on the grounds that the complainant had not shown that the company rejected him because of his whistleblowing.  In reversing the ALJ’s decision, the Administrative Review Board concluded that the Administrative Law Judge had overlooked the fact that there were genuine issues of material fact that required factual determinations of the type that could be made only after an evidentiary hearing.

This ARB nuclear whistleblower case demonstrates that where the main issue is causation, i.e., whether the employer took action against the employee because of protected activity, turns on factual questions of motivation and intent, the case should generally not be decided on summary decision – i.e., without an evidentiary hearing where the finder of fact hears testimony from witnesses and examines other evidence.

It is crucial to the public health and safety that nuclear workers know their rights to speak out about issues of concern to the public health and safety. The Energy Reorganization Act of 1978 (ERA) provides strong protections for contractors and employees who provide information about, or participate in investigations relating to, what they believe to be violations of nuclear safety laws and standards.