Ninth Circuit reverses Hanford whistleblower ruling

Hanford whistleblower Walt Tamosaitis will return to federal court after the 9th Circuit U.S. Court of Appeals ruled Friday that lower courts wrongly dismissed his case against the primary subcontractor at the Hanford vitrification plant.

The court also said he is entitled to a jury trial, contrary to a June 2012 ruling by U.S. Judge Lonny Suko, who later that year dismissed Tamosaitis’ case against URS Energy and Construction.

“We are anxious to get into court as soon as we can,” said Tamosaitis’ attorney, Jack Sheridan.

The lawsuit will continue with only URS, Tamosaitis’ former employer as a defendant, after the 9th Circuit also ruled that the dismissal of the Department of Energy from the lawsuit was appropriate.

This is the first time that a court of appeals has confirmed that whistleblowers under the Energy Reorganization Act are entitled to a jury trial, Sheridan said.

“It puts them on equal footing with other victims of discrimination,” he said.

Tamosaitis maintains URS removed him as the research and technology manager of the $12.2 billion vit plant project after he said that more time was needed to resolve complex technical issues, which would have jeopardized a $6 million payment from DOE to URS’ client, Bechtel National.

Bechtel and URS strongly disagree, saying he had completed his work and also had sent inappropriate emails discussing the issue.

Suko dismissed the case in 2012 after ruling that Tamosaitis had not followed legal requirements to wait one year after filing an administrative claim with the Department of Labor before proceeding to a federal court case.

He also found that URS, a subcontractor for Bechtel National, was not responsible for removing Tamosaitis from the project. Instead, Suko ruled URS acted on Bechtel’s instructions, and he dismissed the case before it could be argued before a jury or judge.

The 9th Circuit concluded that a jury might be persuaded to find that URS could have acted against Bechtel’s wishes to have Tamosaitis off the vitrification plant project. It pointed out that URS’ actions likely would have been different if Bechtel had asked that an employee be dismissed for obviously discriminatory reasons, such as gender bias.

Emails sent by Bechtel to URS showed that Bechtel and DOE were extremely unhappy with Tamosaitis’ activities that were protected by whistleblower laws, the 9th Circuit opinion said.

A jury conceivably could find that URS knew that Bechtel’s motive was retaliation and dismissed Tamosaitis anyway, according to the opinion written by Judge Martha Berzon.

Tamosaitis continued to work for URS after being removed from the vitrification plant project, and Suko found in 2012 that his continued employment, plus bonuses and other meaningful work assignments, showed that URS had not discriminated against him.

But the 9th Circuit found that there was evidence to create questions about whether Tamosaitis’ career suffered because of his dismissal from the project, where he supervised a $500 million program with up to 50 employees.

After his dismissal, he annually lost $30,000 to $100,000 in compensation, and the primary employment opportunity URS offered him within the company required an undesirable transfer to another country. URS since laid him off.

The court’s ruling that Tamosaitis was entitled not only to a trial, but a jury trial, was based on federal law that gives the Department of Labor a year to decide a case and then allows the defendant to file a lawsuit in federal court if no decision has been made.

Once the case moves to federal court, the right to a jury trial is not removed because it could have been decided by the Department of Labor without a jury, the 9th Circuit found.

Tamosaitis filed his case with the Department of Labor naming “URS Inc.” as the defendant July 30, 2010. He amended the complaint Dec. 15, 2010, to add DOE as a defendant and on Sept. 7, 2011, to change to “URS Energy and Construction.”

Although a full year did not pass before naming URS Energy and Construction, the company made clear in its response to the filing that Tamosaitis was naming the URS Hanford subcontractor, the 9th Circuit found. There was no need for Tamosaitis to wait a year after making that change to proceed to federal court, it said.

However, DOE did not have a full year of involvement in the claim, and Tamosaitis should have waited a year from when DOE first was named in the Department of Labor complaint before naming DOE a defendant in federal court, the 9th Circuit said.

URS said Friday that it was evaluating the decision.

“URS disagrees that there was any retaliation against Dr. Tamosaitis,” it said in a statement. “We encourage our employees to raise concerns about safety, which is the company’s highest priority, and we are methodical in addressing the concerns they identify.”

URS said it is confident its policies and procedures encourage employees to raise safety concerns and that the policies and procedures protect them from retaliation. It has zero tolerance for retaliation against whistleblowers, it said.

Bechtel declined to speak directly about the rulings, because it is not a defendant. But Bechtel is “absolutely committed to providing an environment in which everyone on the project is encouraged and expected to raise concerns,” said Bechtel spokeswoman Suzanne Heaston.

The three-judge panel that made the ruling included Berzon, Chief Judge Alex Kozinski and Judge Richard Paez.

Sheridan expects the case to go to a jury next year.

This story was originally published November 7, 2014 at 4:51 PM with the headline "Ninth Circuit reverses Hanford whistleblower ruling."