Whistle-blowing at nuclear energy sites
Under a law protecting whistle-blowing employees at nuclear energy sites, what are the requirements for naming the retaliating party and does the employee have a right to a jury trial?
On March 4, 2015, the Ninth Circuit Court of Appeals clarified the federal law that empowers whistle-blowing employees working at nuclear energy sites to file retaliation claims in federal court after one year of administrative agency inaction. In Tamosaitis v. URS Inc. (9th Cir. Mar. 4, 2015) 2015 U.S. App. LEXIS 3595, the appellate court addressed the issues of (1) the specificity required to name the retaliating party at the administrative stage, and (2) whether an employee who files a lawsuit has a constitutional right to a jury trial.
Mr. Tamosaitis was an employee of URS Energy & Construction, Inc., a subcontractor of Bechtel Nation, Inc. Bechtel was contracted by the Department of Energy to assist with a clean-up of the pollution at the Hanford Nuclear site, a former nuclear weapons production facility that stored nuclear waste. Mr. Tamosaitis led a study reviewing technical challenges with the clean-up project. Mr. Tamosaitis advised an extension of the deadline to solve one lingering and complex issue; Bechtel opposed the extension given it would jeopardize their six-million-dollar fee. Mr. Tamosaitis brought his environmental and safety concerns to a meeting hosted by Bechtel, a URS employee and Assistant Project Manager of the clean-up project, and several clean-up project consultants. Two days later, URS fired Mr. Tamosaitis from the clean-up project and reassigned him to a nonsupervisory role in a basement office.
The Energy Reorganization Act (42 U.S.C. section 5851(b)(1)(A)) prohibits retaliation against employees for notifying their employers of alleged violations of the Development of Energy Sources law or the Atomic Energy Act of 1954. An employee seeking redress under the whistle-blower law must file a complaint with the Department of Labor, Occupational Safety and Health Administration within 180 days of the retaliatory act. (42 U.S.C. section 5851(b)(1).) Employees may take their retaliation cases to federal district court if DOL-OSHA has not issued a final decision within one year of the filing of the complaint. (42 U.S.C. section 5851(b)(4).)
On July 30, 2010, Mr. Tamosaitis filed a complaint against “his employer, URS, Inc.” with DOL-OSHA. On December 15, 2010, he added the Department of Energy as a party. On September 7, 2011, Mr. Tamosaitis changed the employer party from URS, Inc. to URS Corp. and URS Energy & Construction, Inc. He filed a complaint in federal court on November 9, 2011, naming URS Corp., URS Energy & Construction, Inc., and the Department of Energy as defendants, and also requested a jury trial.
The district court dismissed the case as to the Department of Energy, URS Corp., and URS Energy & Construction, Inc. at two different stages of the litigation on grounds Mr. Tamosaitis failed to wait a full year after naming these entities in his DOL-OSHA complaint. The district court also struck Mr. Tamosaitis’s jury demand, ruling that he had no statutory or constitutional right to a trial by jury.
On appeal, the Ninth Circuit agreed that, as a general rule, adding a new party to an administrative complaint restarts the one-year period as to that party. The appellate court noted that the language of the whistle-blower law and DOL-OSHA regulations indicates that the one-year period is linked to a particular party. The court in Tamosaitis also found that because the federal action consists of a review of the DOL-OSHA proceedings, the litigation is tied to the parties that were before the agency.
The Ninth Circuit determined that allowing an employee to sue a party who was not a party in the administrative proceedings for a full year before the case was moved to federal court would severely undermine the administrative scheme. The appellate court concluded that before an employee may bring a retaliation suit against a party in federal court, that party must have had notice of, and an opportunity to participate in, the DOL-OSHA action for one year.
Based on this conclusion, the court of appeals agreed that Mr. Tamosaitis’s claim against the Department of Energy failed because he did not name that entity in his original DOL-OSHA complaint and did not attribute any retaliatory conduct to it. The Ninth Circuit also affirmed dismissal of the case against URS Corp. because Mr. Tamosaitis’s original DOL-OSHA complaint did not allege that URS Corp. was either his employer or a subcontractor to Bechtel at the Hanford site. Furthermore, URS Corp. responded to the administrative complaint by noting as much.
With respect to URS Energy & Construction, Inc., however, the original DOL-OSHA complaint alleged that the intended party (named URS Inc.) was Mr. Tamosaitis’s employer and the principal subcontractor to Bechtel in a government contract at the Hanford site. URS Energy & Construction, Inc. responded to the complaint by acknowledging that Mr. Tamosaitis could only be referring to it, and explained that it was Mr. Tamosaitis’s employer and entered into the clean-up contract with Bechtel. The response also addressed the merits of Mr. Tamosaitis’s allegations in depth. The Ninth Circuit concluded that Mr. Tamosaitis gave adequate notice to URS Energy & Construction, Inc. that it was the named party to his complaint, such that it could defend itself in the original agency complaint.
As to the jury trial issue, the Ninth Circuit began with a review of the Seventh Amendment, which provides a right to a jury in actions enforcing laws that create legal rights and remedies. To determine whether the right exists in a particular case, the court must determine whether the claim is one that was historically tried at law or analogous to one that was. The court in Tamosaitis reviewed a decision concerning civil rights claims under 42 U.S.C. section 1983. That decision determined a jury trial right exists because the civil rights claims are basically tort actions and seek legal relief in the form of compensatory damages.
The Ninth Circuit found that Mr. Tamosaitis’s whistle-blower suit also sounds in tort and seeks compensatory damages. It also determined that his case is analogous to a wrongful discharge claim at common law, a tort that has been treated as a legal—in contrast to an equitable—action. The appellate court also noted that the whistle-blower law authorizes an award of compensatory damages. (42 U.S.C. section 5851(b)(2)(B).) Accordingly, it determined that Mr. Tamosaitis is entitled to non-economic damages such as emotional distress and loss of professional reputation (in addition to injunctive relief, and back pay and lost benefits).
The Ninth Circuit concluded that Mr. Tamosaitis has a right to a jury trial in the district court for his claims seeking money damages. It noted that this conclusion extends to employees and employers alike in other cases.