Tomosaitis v. URS Inc., No. 12-35924 (9th Cir. 2014)
Annotate this CasePlaintiff filed suit against his employer (URS) and the DOE, alleging violations of the Energy Reorganization Act (ERA), 42 U.S.C. 5851(b)(4), whistleblower protection provision, and requested a jury trial. The district court partially dismissed the complaint, denied a jury trial, and granted summary judgment against plaintiff. The court held that before an employee may opt out of the agency process and bring a retaliation suit against a respondent in federal court, that respondent must have had notice of, and an opportunity to participate in, the agency action for one year. In this case, plaintiff's claim against DOE failed for lack of administrative exhaustion. The court concluded that the administrative exhaustion was sufficient as to URS E&C. The court affirmed the district court's dismissal of URS Corp. for lack of administrative exhaustion. The court also concluded that, since plaintiff has shown that his protected activity was a "contributing factor" in the adverse employment action he suffered, he has met his burden for establishing a prima facie case of retaliation under the ERA. Further, the evidence created a genuine issue of fact as to whether plaintiff's compensation, terms, conditions, or privileges of employment were affected by his transfer. The court reversed the grant of summary judgment to URS E&C for ERA whistleblower retaliation. Finally, the court held that plaintiff has a constitutional right to a jury trial for his claims seeking money damages against URS E&C and the court reversed the district court's ruling.
Court Description: Whistleblower / Energy Reorganization Act. The panel affirmed the district court’s dismissal of the U.S. Department of Energy from the suit, affirmed the grant of summary judgment in URS Corp.’s favor, and reversed the grant of summary judgment for URS Energy & Construction, Inc. in an action brought by a URS Energy employee alleging violations of the Energy Reorganization Act whistleblower protection provision, concerning cleanup efforts of nuclear waste at the Hanford Nuclear Site in Washington state. The “opt-out” provision of the Energy Reorganization Act (“ERA”), 42 U.S.C. § 5851(b)(4), empowers whistleblowing employees at nuclear energy sites to bring anti-retaliation claims to federal court after one year of agency inaction. The Department of Energy (“DOE”) led the effort to clean up the pollution at Hanford, which included construction and management of a Waste Treatment Plant. The Department contracted with Bechtel National, Inc., which subcontracted with URS Energy & Construction, Inc. (“URS Energy”) for work on the project. URS Energy is a wholly-owned subsidiary of URS Corporation. Addressing the issue of administrative exhaustion, the panel held that before an employee may opt out of the agency process and bring a retaliation suit against a respondent in federal court, the respondent must have had notice of, and an opportunity to participate in, the agency action for one year. The panel affirmed the dismissal of DOE because there was no administrative complaint pending against DOE for one year before the employee filed suit against DOE in federal court, and § 5851(b)(4)’s administrative exhaustion requirement was not satisfied as against DOE. The panel held that administrative exhaustion was sufficient as to URS Energy where the employee gave adequate notice to URS Energy that it was the named respondent to his complaint. Finally, the panel affirmed the district court’s dismissal of URS Corp. for lack of administrative exhaustion where URS Corp. was not adequately named in the employee’s original administrative complaint. The panel held that the employee introduced sufficient evidence to create a triable issue as to whether his whistleblowing activity was a contributing factor in the adverse employment action URS Energy took against him. The panel also held that there was a genuine issue of fact as to whether the employee’s compensation, terms, conditions, or privileges of employment were affected by his transfer to another position. Accordingly, the panel reversed the grant of summary judgment to URS Energy for ERA whistleblower retaliation. The panel held that the employee did not have a statutory jury trial right for his ERA whistleblower suit. The panel held that the employee did have a constitutional right to a jury trial for his claims seeking money damages under § 5851(b)(4), and reversed. The panel remanded for further proceedings.
The court issued a subsequent related opinion or order on March 4, 2015.
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