Staff Reports
WC Monitor
11/14/2014
Hanford whistleblower Walt Tamosaitis will return to federal court after the 9th Circuit U.S. Court of Appeals ruled late last week that his case against URS, the primary subcontractor at the Hanford Waste Treatment Plant, was wrongly dismissed on summary judgment. The 9th Circuit also found that he is entitled to a jury trial, contrary to a June 2012 ruling by U.S. Judge Lonny Suko in Eastern Washington District U.S. Court. “We are anxious to get into court as soon as we can,” said Tamosaitis’ attorney, Jack Sheridan. The case should be before a jury in 2015, he said.
The lawsuit will continue with only URS, Tamosatisis’ 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 trial by jury, Sheridan said. “It puts them on equal footing with other victims of discrimination,” he said.
Previous Ruling Found URS Had Acted on Bechtel’s Direction to Remove Tamosaitis
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, URS was acting on the instructions of its client, Bechtel National, Suko ruled, and dismissed the case before it could be argued before a jury or judge. Tamosaitis maintains he was removed as the research and technology manager of the plant after pushing for more time to resolve complex technical issues, which would have jeopardized a $6 million payment from DOE to Bechtel. Bechtel and URS have strongly disagreed, saying he had completed his work and also had sent inappropriate emails discussing the issue.
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’s 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 District opinion said. A jury conceivably could find that URS knew that retaliation was Bechtel’s motive 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 had suffered because of his dismissal from the project, where he supervised a $500 million program with up to 50 employees. After his dismissal he was losing $30,000 to $100,000 in compensation annually and the primary employment opportunity he was offered within URS would have required an undesirable transfer to another country, the 9th Circuit said. URS has since laid Tamosaitis off.
Court Says Tamosaitis Has Right to Jury Trial
The court’s ruling that Tamosaitis was entitled not only to a trial, but a trial by jury, was based on the Energy Reorganization Act, which 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 “URS Inc.” to “URS Energy and Construction.”
Although a full year did not pass before going to federal court after 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 District said.
URS Evaluating Decision
URS said 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 comment directly on the rulings, because it was 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. In addition to Berzon, the case was decided by Chief Judge Alex Kozinski and Judge Richard Paez.
