Tuesday, February 16, 2016
Divided Appeals Panel Throws Out Whistleblower Suit
By a MetNews Staff Writer
A statute designed to protect whistleblowers in the nuclear industry did not protect a worker who alleged he was fired for complaining about unauthorized persons having access badges to the workplace, the Ninth U.S. Circuit Court of Appeals ruled Friday.
In a 2-1 decision, the panel said that David W. Sanders, a former maintenance manager at Energy Northwest in Richland, Wash., did not engage in protected activity under the Energy Reorganization Act. Senior Judge Edward Leavy said the issue Sanders complained about was not related to “nuclear safety” within the meaning of the act.
Judge Richard C. Tallman concurred, while Judge Susan P. Graber dissented.
Sanders filed a whistleblower complaint with the Department of Labor in 2011, then filed suit in U.S. District Court when the department failed to act on his complaint within one year.
Evidence presented in connection with Energy Northwest’s summary judgment motion showed that Sanders was terminated after a pair of disputes with the then-security manager at the company.
In October 2010, he complained that contractors were not complying with policies requiring that they turn in their access badges within seven days of completing their work. He filed a report, under a system in which such reports were designated according to the severity of the problem.
This particular report was designated as a “Bravo,” meaning it fell in the second-highest category of priority. Sanders felt it was up to his department to solve the problem, but the security manager felt otherwise, and after what the appeals court characterized as a heated meeting, management sided with Sanders.
The two clashed again, however, two weeks later after it was learned that a terminated employee had not turned in his access badge within seven days of termination. Sanders and the security manager argued over whether the incident should be designated as a Bravo or as a lesser-priority “Charlie,” with Sanders arguing for the higher-priority designation.
After the two managers were unable to resolve the disagreement, Sanders told the plant manager that the security department had “lower standards than what we’re expecting from the plant.”
Sanders claimed that his objection to the Charlie designation got him fired, but District Judge Thomas Rice of the Eastern District of Washington said that, assuming that was true, it did not constitute a violation of the retaliation provision of the statute because it did not “rise of the level of protected activity.”
Leavy, writing for the Ninth Circuit, agreed.
“The essence of Sanders’ complaint concerned which department - maintenance or security - would take responsibility for the internal condition reports about access badges, and at what level of inquiry – ‘Bravo’ or ‘Charlie.’...There is no suggestion in the record that because these condition reports were labeled a ‘Bravo’ or a ‘Charlie,’ they would not be remedied in due course. Nor is there any suggestion of any safety concern that was overlooked, neglected, or concealed by management.”
He went on to say:
“Under these facts, Sanders’ single expression of a difference of opinion about the ‘Charlie’ designation of one existing internal condition report lacks a sufficient nexus to a concrete, ongoing safety concern.”
Graber argued in dissent that her colleagues were “wrong to narrow the scope of the statute” by adding a requirement that management have “overlooked, neglected, or concealed” the complained-of safety concern for the complaint to be protected.
The case is Sanders v. Energy Northwest, 14-35368.
Copyright 2016, Metropolitan News Company