Tamosaitis v. URS Inc.
| Decision Date | 07 November 2014 |
| Docket Number | No. 12–35924.,12–35924. |
| Citation | 781 F.3d 468 |
| Parties | Walter L. TAMOSAITIS, PH.D., an individual, Plaintiff–Appellant, v. URS INC., a Delaware corporation; URS Energy and Construction Inc., an Ohio corporation; U.S. Department of Energy; URS Corporation, Defendants–Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
John Sheridan (argued), Sheridan Law Firm, Seattle, WA; and Joseph R. Shaeffer, MacDonald Hoague & Bayless, Seattle, WA, for Plaintiff–Appellant.
Katherine Bushman Smith (argued), Trial Attorney, Office of the General Counsel, United States Department of Energy, Washington, D.C.; and Rolf Harry Tangvald, Assistant United States Attorney, Office of the United States Attorney, Spokane, WA, for Defendant–Appellee Department of Energy.
Matthew William Daley (argued), Timothy Michael Lawlor, and Matthew A. Mensik, Witherspoon Kelley, Spokane, Washington, for Defendants–Appellees URS Corporation, URS Inc., and URS Energy and Construction, Inc.
Appeal from the United States District Court for the Eastern District of Washington, Lonny R. Suko, District Judge, Presiding. D.C. No. 2:11–cv–05157–LRS.
Before: ALEX KOZINSKI, Chief Judge, and RICHARD A. PAEZ and MARSHA S. BERZON, Circuit Judges.
The panel has voted to amend its opinion filed November 7, 2014, and published at 771 F.3d 539, and to deny appellees URS Corporation, URS Energy and Construction Inc., and URS Inc.'s petition for rehearing and petition for rehearing en banc with the following amendments:
On page 551, change
On page 557, note 9, change
The full court has been advised of the petition for rehearing en banc, and no judge has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.
The petition for rehearing is denied and the petition for rehearing en banc is rejected. No further petitions for rehearing or rehearing en banc will be entertained. The mandate shall issue in due course.
OPINION
The Energy Reorganization Act (“ERA”), 42 U.S.C. § 5851(b)(4), includes an “opt-out” provision empowering whistleblowing employees working at nuclear energy sites to bring anti-retaliation claims to federal court after one year of agency inaction. Our case concerns the interpretation and application of that provision. In addition, we consider whether a whistleblower who sues an employer in a federal anti-retaliation lawsuit under the ERA opt-out provision has a constitutional right to a jury trial.
The Hanford Nuclear Site is a former nuclear weapons production facility in Washington state.1 Hanford's reactors produced plutonium for the national defense for over forty years. The Hanford site abuts a river and stores fifty-three million gallons of hazardous, high-level nuclear waste in underground tanks. There are estimates that one million gallons of nuclear waste have leaked from the storage tanks into the ground and that the groundwater beneath eighty-five square miles of the site is polluted.
The Department of Energy (“DOE”) leads the effort to clean up the pollution at Hanford. The clean-up plan includes construction and management of a Waste Treatment Plant (“WTP”) responsible for “separating and vitrifying (immobilizing in glass) ... nuclear tank waste.” Vitrification involves mixing nuclear waste with glass-forming materials at extremely high temperatures, then pouring the mixture into stainless steel containers to cool and solidify it. Once immobilized in glass, the nuclear waste generally is considered stable and safe for storage. Over hundreds of years, the waste will lose its radioactivity.
The building of the WTP is in process. When completed, the WTP will be the largest such facility in the world. The WTP is to have a “design life of forty years,” meaning that some of its parts are to operate without maintenance for four decades. The sound design of the WTP is important to protect against occurrence of a “criticality accident”—a nuclear chain reaction inside plutonium or enriched uranium. Such reactions release radiation, which, particularly in combination with hydrogen gas, could be catastrophic.
To assist in its clean-up effort at Hanford, DOE contracts with Bechtel National, Inc. (“Bechtel”). Bechtel subcontracts with URS Energy & Construction, Inc., (“URS E & C”) for work on the WTP.
In the wake of a report detailing problems with the Hanford clean-up, appellant Dr. Walter Tamosaitis, an employee of URS E & C, was appointed to lead a study reviewing technical challenges within the WTP project. The study identified twenty-eight technical issues, twenty-seven of which were “closed,” meaning resolved, by the planned date of October 2009. The remaining issue, termed the “M3 mixing issue,” required solving a design problem concerning the mixing of nuclear waste in certain of the WTP pretreatment tanks.
The M3 mixing issue proved to be a lingering and complex challenge. Tamosaitis wanted to extend the deadline for solving the issue to September 2010, while Bechtel wanted it resolved by June 2010. Failure to resolve the M3 mixing issue by June would have jeopardized Bechtel's six-million-dollar fee.
Bechtel rejected Tamosaitis's advice and announced closure of the M3 mixing issue by June. Tamosaitis objected: He brought a fifty-point list of environmental and safety concerns to a meeting hosted by Bechtel; forwarded the same list to Bill Gay, a URS employee and WTP Assistant Project Manager; and reached out to several WTP consultants by email, hoping that they would oppose closure and publicize his concerns.
Two days later, Tamosaitis was fired from the WTP project. URS Operations Manager Dennis Hayes personally terminated Tamosaitis. Hayes directed Tamosaitis to return his badge, cell phone, and Blackberry, and leave the site immediately. Tamosaitis was reassigned, in a non-supervisory role, to a basement office in a URS facility off the Hanford site. He was later offered other positions with URS, but they required relocation.
The anti-retaliation—or “whistleblower” protection—provision of the ERA provides that:
No employer may discharge any employee or otherwise discriminate against any employee with respect to his compensation, terms, conditions, or privileges of employment because the employee ... notified his employer of an alleged violation of this chapter [Development of Energy Sources] or the Atomic Energy Act of 1954.
42 U.S.C. § 5851(a)(1)(A). This statute “protect[s] workers from retaliation based on their concerns for safety and quality,” Mackowiak v. Univ. Nuclear Sys., Inc., 735 F.2d 1159, 1163 (9th Cir.1984), and ensures that the government agencies charged with monitoring nuclear safety do not see their “channels of information ... dried up by employer intimidation,” DeFord v. Sec'y of Labor, 700 F.2d 281, 286 (6th Cir.1983) (quoting NLRB v. Scrivener, 405 U.S. 117, 122, 92 S.Ct. 798, 31 L.Ed.2d 79 (1972) ).
The Department of Labor, Occupational Safety and Health Administration (“DOL–OSHA”) implements this anti-retaliation provision. See 29 C.F.R. §§ 24.100 –24.105. An employee seeking redress under section 5851 must file a complaint with DOL–OSHA and follow the statutorily designated administrative scheme, whereby:
Any employee who believes that he has been discharged or otherwise discriminated against by any person in violation of subsection (a) of this section may, within 180 days after such violation occurs, file (or have any person file on his behalf) a complaint with the Secretary of Labor (in this section referred to as the “Secretary”) alleging such discharge or discrimination. Upon receipt of such a complaint, the Secretary shall notify the person named in the complaint of the filing of the complaint, the Commission, and the Department of Energy.
42 U.S.C. § 5851(b)(1).
In 2005, Congress bolstered this whistleblower protection by amending section 5851 to allow employees to take their retaliation cases to federal district court if, after one year, DOL–OSHA has not adjudicated their claim. Energy Policy Act of 2005, Pub.L. No. 109–58, § 629, 119 Stat 594 (Aug. 8, 2005). The amendment adds the “opt-out” clause at issue here, which provides:
If the Secretary has not issued a final decision within 1 year after the filing of a complaint ... and there is no showing that such delay is due to the bad faith of the person seeking relief under this paragraph, such person may bring an action at law or equity for de novo review in the appropriate district court of the United States, which shall have jurisdiction over such an action without regard to the amount in controversy.
42 U.S.C. § 5851(b)(4). Congress added the opt-out provision to the statutory scheme to address “extensive delays that ... frustrated the purpose of [the] whistleblower statutes.” H.R.Rep. No. 108–65, at 160 (2003).
On July 30, 2010, Tamosaitis filed a discrimination action with DOL–OSHA. He named “his employer, URS, Inc., a contractor at the Hanford Nuclear Site,” as respondent, and asserted workplace discrimination on account of activities protected under the ERA. DOL–OSHA acknowledged receipt of the complaint on August 13, 2010, and said it was “providing the named party with a copy of [the] complaint and information concerning OSHA's responsibilities under the law.”
URS Corporation (“URS Corp.”) responded to Tamosaitis's OSHA complaint by filing a position statement with DOL–OSHA. On the second page of the document, URS Corp. stated that The eighteen-page position...
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California Employment Law Notes - May 2015
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...further held that section 1102.5 (prior to amendment) did require exhaustion of administrative remedies. See also Tamosaitis v. URS, Inc., 781 F.3d 468 (9th Cir. 2015) (whistleblower employee who worked at a nuclear energy site failed to exhaust administrative remedies under the Energy Reor......