Wednesday, February 17, 2016

9th Cir. Upholds Summary Judgment Finding Employee's Objection to Designation of Complaint Not Protected Activity

The whistleblower retaliation provision of the Energy Reorganization Act ("Act"), 42 U.S.C. § 5851, protects energy workers who report or otherwise act upon safety concerns.  The Act also specifically prohibits employers from discharging or otherwise discriminating against employees for several enumerated acts and also includes a catch-all provision protecting employees "in any other action to carry out the purposes of this chapter...."  42 U.S.C. § 5851 (a)(1)(F).  

To establish a prima facie case of retaliation under the Act, an employee must show that:

(1) he engaged in a protected activity;
(2) the respondent knew or suspected ... that the employee engaged in the protected activity;
(3) [t]he employee suffered an adverse action; and 
(4) [t]he circumstances were sufficient to raise the inference that the protected activity was a contributing factor in the adverse action.

Under the Act's burden-shifting approach to retaliation claims, if an employee shows that his participation in protected activity was a contributing factor in the unfavorable personnel action alleged, the burden shifts to the employer to rebut the employee's prima facie case by introducing "clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of the employee's participation in such behavior."  42 U.S.C. § 5851(b)(3)(D).


Plaintiff David W. Sanders ("Sanders") worked for Defendant Energy Northwest, a Washington municipal corporation that owns and operates a nuclear power plant in Richland, WA.  Sanders was a maintenance manager whose responsibilities included overseeing maintenance contractors working at the power plant, and he also administered temporary staffing contracts for the Defendant.  

After 19 years of employment, Energy Northwest terminated Sanders' employment, alleging that he had improperly approved temporary staffing per diem and travel payments to the father of his daughter's child.  Sanders alleged that he was terminated for engaging in protected activity under the whistleblower retaliation provision of 42 U.S.C. § 5851.  More specifically, Sanders claims that his objection to the severity level designation of an internal "condition report" constitutes protected activity under the Act.  A "condition report" in a report generated by employees when safety procedures may have been violated.  Energy Northwest, as a Nuclear Regulatory Commission likeness, is required to maintain an internal system for documenting potential safety violations.

Employees at Energy Northwest are encouraged to create condition reports on any issue perceived to pose safety concerns.  Once a condition report is created, a condition review group meets to determine the severity level of the report.  This group reviews each condition report and assigns a level of severity in decreasing order of severity.  The condition review group has latitude in its designation decisions.  After a severity designation is made, the condition report is reviewed in an operational focus meeting to ensure that remediation is properly undertaken.

One such report was generated and Sanders objected over the designation this report received.  He contended that this objection constitutes protected activity under the whistleblower protections of the Act.  on September 1, 2011, Sanders filed a whistleblower complaint with the Department of Labor ("DOL").  The DOL failed to issue a final decision within 1 year, which allowed Sanders to file a complaint in federal district court.  The district court granted summary judgment in favor of Energy Northwest on the ground that Sanders failed to establish a prima facie case of retaliation because his activity did not "rise to the level of protected activity under the Act or the associated case law."  Sanders then appealed to the Court of Appeals for the Ninth Circuit, who affirmed the lower court's decision.

9th Circuit Upholds Summary Judgment in Favor of Defendant Energy Northwest

In upholding summary judgment in favor of the Defendant, the 9th Circuit cited the 11th Circuit's decision in Bechtel Constr. Co. v. Sec'y of Labor, 50 F.3d 926, 932-33 (11th Cir. 1995) whereby the 11th Circuit noted that a broad interpretation is appropriate because "it promotes the remedial purposes of the statute and avoids the unwitting consequence of preemptive retaliation, which would allow the whistleblowers to be fired or otherwise discriminated against with impunity for internal complaints before they have a chance to bring them before an appropriate agency."  In Bechtel, a carpenter disagreed with his foreman about the safety procedures for measuring the amount of radioactive contamination of the carpentry tools, which was then raised with the foreman's supervisor.  In finding that this constituted protected activity, the 11th Circuit noted that he "did not merely make general inquiries regarding safety but, rather, he raised particular, repeated concerns about safety procedures for handling contaminated tools.  The 11th Circuit also stated that "Section 5851does not protect every act that an employee commits under the auspices of safety," and that "whistleblowing must occur through prescribed channels."

Sanders attempted to argue that his conduct was similar to the carpenter in Bechtel, to which the 9th Circuit disagreed, in a manner the dissenting judge addressed.  The 9th Circuit stated that, unlike the carpenter in Bechtel, Sanders had no independent knowledge of possible safety violations prior to the creation of the internal condition reports at issue, Sanders did not generate these condition reports, and Energy Northwest was already aware of the potential safety violations, and its internal process for remediation was underway.  The Court also noted that there was no suggestion in the record that because these condition were reports were designated a certain way that they would not be remedied in due course, nor was there any suggestion of any safety concern that was overlooked, neglected, or concealed by management.  Thus, the 9th Circuit concluded, "[u]nder these facts, Sanders' single expression of a difference of opinion about the "Charlie" designation of one existing internal condition report lacks a sufficient nexus to a concrete, ongoing safety concern."

The case is David W. Sanders v. Energy Northwest, No. 14-35368 (Feb. 12, 2016).  The 9th Circuit covers Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Northern Mariana Islands, Oregon, and Washington.

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