• Dean Royer

Handling safety reports and protected conduct

Is objecting to how a safety violation report is being handled protected conduct?

The Ninth Circuit Court of Appeals recently decided whether a nuclear power plant employee was protected by a whistle-blower law. In Sanders v. Energy Northwest (9th Cir. Feb. 12, 2016, No. 14-35368) 2016 U.S. App. LEXIS 2467, the appellate court determined if the employee’s objection to how a potential safety violation report was being handled was protected conduct.

In this case, Mr. Sanders worked as a maintenance manager overseeing maintenance contractors and administering temporary staffing contacts. His employer terminated him after 19 years of employment, claiming that he improperly approved temporary staffing payments to a family member. Mr. Sanders contended that he was fired for blowing the whistle in violation of the Energy Reorganization Act. (42 U.S.C. section 5851.)

The alleged whistle-blowing activity arose from a dispute over how to handle a potential safety violation report. At Energy Northwest, employees create “condition reports” on any issue perceived to pose safety concerns. A review group meets to determine the severity level of the report (designated as “Alpha,” “Bravo,” “Charlie,” or “Delta”). Energy Northwest is also required to maintain an “access authorization program” to regulate access to its facility. A worker who has been granted an unescorted access badge generally must turn in the badge within a prescribed time frame after his employment has been completed.

Mr. Sanders learned that several contractors working in his maintenance department had completed their employment without turning in their access badges within the required time frame of seven days. The maintenance department was cited in an internal condition report, which was designated as a “Bravo.” Mr. Sanders and the head of the security department disputed which of their departments should investigate and fix the problem. Management eventually decided that the maintenance department should be responsible.

About two weeks later, the security department received an internal condition report concerning one employee who was terminated without turning in his access badge within the seven-day time frame. Mr. Sanders and the security department head offered conflicting opinions on the designation of the report: Mr. Sanders believed it should be “Bravo,” and the security department wanted “Charlie.” Mr. Sanders told the plant manager that he did not agree with the lower designation advocated by the security department, but that he “would let it go” at that designation level.

After he was terminated, Mr. Sanders filed a lawsuit in federal court, asserting that his objection to designation of the condition report was the reason why he lost his job. The trial court dismissed his case on grounds that Mr. Sanders’s conduct was not protected by the Act. Mr. Sanders appealed.

On appeal, the Ninth Circuit reviewed the whistle-blower retaliation section of the Act. It prohibits employers from terminating or otherwise discriminating against an employee based on the employee notifying his employer of a violation, initiating an enforcement proceeding, testifying in a safety or enforcement proceeding, or taking any other action to carry out the purposes of the Act. The appellate court reviewed decisions by the Eleventh Circuit, which has concluded that protected conduct includes raising particular, repeated concerns about safety procedures; questioning a supervisor’s instructions on safety procedures; or talking about safety with a plant fire official and filing a complaint with a regulatory agency.

The Ninth Circuit determined that Mr. Sanders’s conduct was not protected. He had no independent knowledge of possible safety violations prior to the creation of the condition reports, which he did not make. His complaint was which department should take responsibility and at what designation level for the condition reports about the access badges. Mr. Sanders’s department was given responsibility for one report, and the security department was assigned the other. According to the appeals court, there was no suggestion that the designation level would prevent the remediation of the problem, nor that any safety concern was overlooked or neglected by management.

Ultimately the Ninth Circuit concluded that Mr. Sanders’s single difference of opinion about the designation of one existing condition report lacked sufficient connection to a concrete, ongoing safety concern. Consequently, in a majority opinion the appellate court affirmed the trial court’s dismissal of Mr. Sanders’s case.

The dissenting opinion noted that the language of the Act does not include a requirement that management overlook or neglect a safety issue, or that the safety concern be concrete and ongoing when the complaint is made. The dissenting judge contended that insisting on a faster or more complete solution to a safety problem, like Mr. Sanders did, is protected conduct.

#Protectedconduct #Whistleblower

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