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Tamosaitis v. URS Inc.

ELR Citation: 44 ELR 20240
Nos. 12-35924, (9th Cir., 11/07/2014)

The Ninth Circuit reversed a lower court's grant of summary judgment in favor of an energy construction company for whistleblower retaliation against an employee in a case concerning cleanup efforts of nuclear waste at the Hanford Nuclear site in Washington state. The “opt-out” provision of the Energy Reorganization Act (ERA) empowers whistleblowing employees at nuclear energy sites to bring anti-retaliation claims to federal court after one year of agency inaction. In this case, DOE led the effort to clean up the pollution at Hanford. DOE hired the energy construction company as a subcontractor for the project. The employee had serious environmental and safety concerns about the project, and two days after raising those concerns at a meeting, he was fired from the project and reassigned, and eventually relocated, to other projects. Contrary to the findings of the lower court, 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 the company took against him. There was also 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. The court, therefore, reversed the grant of summary judgment to the energy construction company for ERA whistleblower retaliation. However, the court affirmed the dismissal of DOE from the suit. 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. Here, there was no administrative complaint pending against DOE for one year before the employee filed suit against DOE in federal court.