9th Circuit rules for Energy Northwest in firing lawsuit

A ruling favoring Energy Northwest of Richland in a case brought by a fired employee has been issued in the 9th Circuit U.S. Court of Appeals, though one judge disagreed.

The 2-1 opinion in the case found that U.S. Judge Thomas Rice was correct to dismiss a whistleblower lawsuit against Energy Northwest in 2014.

David W. Sanders, who had been a maintenance supervisor, claimed he was fired in retaliation for disagreeing with the security compliance supervisor over how a security issue was handled. He sought whistleblower status.

The two men disagreed initially about who should resolve an issue related to security clearance for some maintenance workers. About two weeks later they disagreed again, when Sanders thought a similar issue that happened when a security employee was classified as being less serious.

Energy Northwest said Sanders was fired for inappropriate payments of $7,177 for travel costs and per diem to cover food and temporary lodging for his daughter’s fiance. The man lived with Sanders’ daughter for eight months in the Tri-Cities and had a daughter with her, but claimed his residency was out of state when he was hired at Energy Northwest.

The 9th Circuit opinion concluded that there was no suggestion that any safety concern was overlooked, neglected or concealed by management. The two managers were told to resolve their differences of opinion and although Sanders disagreed, Sanders said he would “let it go.”

The two men were equals, and the security compliance supervisor neither supervised nor fired Sanders, the lower court found.

The disagreement between the two men did not indicate “a concrete, ongoing safety concern,” according to the opinion.

It falls outside the scope of federal law protecting whistleblowers in the nuclear industry, said the opinion written by Judge Edward Leavy. Energy Northwest owns the Columbia Generation Station, the nuclear power plant near Richland.

Judge Richard Tallman agreed in the case heard in Richland U.S. District Court in November as part of the 50th anniversary celebration of the U.S. Courthouse and Federal Building. It was the first time the Appeals Court had heard oral arguments in Richland.

Judge Susan Graber disagreed, saying that it took too narrow of a view of the whistleblower law. Insisting on a faster or more complete solution to a safety problem about which the employer knows is a protected whistleblower activity, she wrote.

Although Sanders agreed to “let it go,” he still emphasized that he disagreed with the severity designation given the incident.

A reasonable jury could find that Sanders maintained Energy Northwest was not living up to appropriate safety standards and that it was a contributing factor to his termination, Graber wrote.

This story was originally published February 12, 2016 at 5:47 PM with the headline "9th Circuit rules for Energy Northwest in firing lawsuit."