Tuesday, November 25, 2014

Ninth Circuit rules for nuclear whistleblower, Tamosaitis, Part 2

A recent decision of the U.S. Court of Appeals for the Ninth Circuit covers a number of common issues in whistleblower cases. Today, I compare how Dr. Walter Tamosaitis tried to pursue his claims in different courts. The outcomes provide insights that can be helpful to future whistleblowers. This is the second and last part of my analysis of this case.  Follow this link to read Part 1.

Dr. Tamosaitis’ lawsuit against Bechtel did not fare well. The Washington state court dismissed it because it said that Bechtel had not caused Dr. Tamosaitis any “pecuniary loss.” The state court of appeals affirmed this dismissal. Tamosaitis v. Bechtel Nat., Inc., 182 Wash. App. 241, 249, 327 P.3d 1309, 1313 (2014). 

The federal court of appeals noted that some states have recognized tort claims for employees who suffer demotions or other adverse actions on account of their stands for the public interest. It also held that the reduction in duties was actionable under the federal law. 

The outcome of Dr. Tamosaitis’ state court case exemplifies the risk that whistleblowers face when their claims get fragmented. If Dr. Tamosaitis had kept all his claims at the Department of Labor (DOL), his amendment to add DOE and Bechtel would have been valid. His claims arising from demotion would have been just as valid as a discharge claim. Moreover, DOE and Bechtel would have been held liable if they ratified or acquiesced in the retaliation. Here, Dr. Tamosaitis had evidence that they actually asked URS to remove him from his duties. However, before the Washington State and Ninth Circuit courts issued their decisions, it would have been hard for Dr. Tamosaitis or his lawyers to anticipate how these cases would have come out.

The Ninth Circuit made some additional holdings that will be particularly helpful to Dr. Tamosaitis and other whistleblowers. It held that URS’ defense that it needed to reassign Dr. Tamosaitis to keep DOE and Bechtel happy is not a legal defense. “It would be totally anomolous [sic] if we were to allow the preferences . . . of [a] customer[] to determine whether the . . . discrimination was valid.” [Quoting other decisions on page 23.] 
 
It also held that Dr. Tamosaitis had no obligation to prove “retaliatory animus.” All he has to show is that his protected concerns were a “contributing factor” in the adverse actions. “The relevant causal connection is not between retaliatory animus and personnel action, but rather between protected activity and personnel action.” [Emphasis in the original on page 24.] Of course, where there is evidence of actual animus (as there is in the email from Bechtel’s political science major), that will be very helpful evidence of the causal connection. 

The Ninth Circuit went on to hold that URS could not show that it would have taken the same action without any protected activity. Reliance on Bechtel’s and DOE’s demands is “unavailing.” A URS supervisor testified that if Bechtel ordered him to assign a man and remove a woman, then URS would not have to comply. A jury could therefore find that URS still have control over Dr. Tamosaitis’ assignment.

Finally, the Ninth Circuit addressed the district court’s order striking Dr. Tamosaitis’ jury demand. It first noted that unlike some other employee protections, the ERA does not specifically mention jury trials. It cited the Civil Rights Act and the Jones Act (giving seamen a remedy for injuries) as examples of how Congress can explicitly grant a right to jury trials. It could also have pointed to SOX, STAA, NTSSA, FRSA, CPSIA, SPA, MAP-21 or Dodd-Frank. 

However, the Ninth Circuit went on to look at the nature of a whistleblower’s claim. It held that because the claim is for compensatory damages, including mental anguish, emotional distress, pain and suffering, humiliation and loss of professional reputation, it is subject to the Seventh Amendment’s guarantee of a right to trial by jury. The court rejected the lower court’s holding that erred in focusing on the nature of the claim at the DOL. The court held that where Congress says a claim can go to federal court, the doctrine allowing agencies to decide cases without juries “disappear[s].” “Congress . . . chose an aggressive timetable for resolving whistleblower claims and . . . created a cause of action as an alternative forum should the DOL fail to comply with such schedule.” (Page 35, quoting Stone v. Instrumentation Lab. Co., 591 F.3d 239, 248 (4th Cir. 2009)).

This is exactly right. Unfortunately, the Ninth Circuit neglected to heed this “alternative forum” for whistleblowers when it dismissed the parent company and DOE.

Dr. Tamosaitis has a strong case against URS, and the Ninth Circuit helpfully sent the case back to the district court with a right to a jury trial. His case stands as a reminder of the high cost our nation faces in cleaning up from our nuclear weapons program. It also suffered in some respects. This suffering would be alleviated if courts were more attentive to the remedial purpose of whistleblower protection laws.

By Richard R. Renner

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