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

Monday, November 24, 2014

Ninth Circuit rules for nuclear whistleblower, Tamosaitis, Part 1

A recent decision of the U.S. Court of Appeals for the Ninth Circuit demonstrates the importance of understanding the purpose of the law. Today, I look at the facts of this case, and the Ninth Circuit's unfortunate holding on the affect of amending an OSHA complaint.  Tomorrow, I will discuss the merits of the case against his former employer, URS.

Dr. Walter Tamosaitis is a professional engineer working for URS Energy & Construction. Since 2003, he had been the Research & Technology (R&T) Manager for the Waste Treatment Plant (WTP) being built in Hanford, Washington. The federal government had condemned the whole town of Hanford in 1943 to build a plutonium production facility for our nuclear weapons program. Over the decades, it generated 53 millions of gallons of radioactive waste. Already, one million gallons have leaked out into ground water and the nearby Columbia River.

Now the government is leading an effort with contractor Bechtel and subcontractor URS to build the WTP. When finished, the WTP is supposed to mix the waste in glass to stabilize it. It needs to stay stable for a long time. The “half-life” of plutonium is 24,000 years. Engineers want ten half-lives of decay to bring the waste close to background radiation levels. That means waiting for 240,000 years.
Another problem with this plan is actually mixing the waste. In 2009, the Department of Energy (DOE) managers asked Dr. Tamosaitis to lead a team to study the engineering problems. By that time, the government had already spent over $500 million on the project. Dr. Tamosaitis told a Senate committee earlier this year that the employees joked about having a bus ticket to get out of town before the WTP ever starts operation. Dr. Tamosaitis responded that he did not have a bus ticket because he intended to see the project through. 
 
Bechtel gave Dr. Tamosaitis a deadline of June 30, 2010, to solve the “M3 mixing issue” and prove it with testing. Bechtel wanted to get a big government reward for meeting this target. Dr. Tamosaitis insisted on a commitment to apply the necessary resources, and he got that commitment. Then, in January 2010, a new Bechtel manager (a politics major, not an engineer) slashed costs and revoked the commitment. The new manager threatened to fire anyone who got in his way. 
 
In March, 2010, DOE Senior Scientist Dr. Donald Alexander raised a concern that mixing the radioactive waste could cause a hydrogen gas explosion, or a runaway nuclear chain reaction. Management told Dr. Tamosaitis to “oppose and kill” this concern. In April 2010, Dr. Tamosaitis reported that Dr. Alexander’s concern was valid. Obviously, Bechtel could no longer meet the June 30, 2010, deadline. Bechtel would either have to give up hope of getting the reward, or lie to the government. They chose to lie. Bechtel began pressuring engineers to go along with their plan or risk losing their jobs. When the Pacific Northwest National Laboratory (PNNL) refused to go along, Bechtel’s plan crashed. Dr. Tamosaitis submitted his reports and emails raising 100 safety concerns.
On June 30, 2010, Dr. Tamosaitis explained his concerns at a meeting. A Bechtel Engineering Manager told him that he should choke on the cherries. Unbeknownst to Dr. Tamosaitis, the politics manager emailed URS the next day saying “Walt is killing us. Get him (out) to your corporate office today”. URS agreed and on July 2, 2010, URS reassigned Dr. Tamosaitis. He lost his staff, but still refused to move to continue his career.

Instead, Dr. Tamosaitis sued. On July 30, 2010, he filed a complaint against “URS, Inc.” with the U.S. Department of Labor (OSHA) under the whistleblower protection of the Energy Reorganization Act (ERA). This is not only within the 180 day time limit under the ERA, it also met the 30-day time limit for the environmental and worker safety laws.
URS Corp. responded to OSHA saying that it was the parent company of URS Energy and Construction – Dr. Tamosaitis real employer. In December 2010, after the OSHA investigation had progressed, Dr. Tamosaitis notified OSHA that he wanted to add Bechtel and the U.S. Department of Energy to his case. It is common that the OSHA investigation will reveal the correct identity of the parties, and it was smart of Dr. Tamosaitis to notify OSHA to include the new parties.
In September 2011, Dr. Tamosaitis’ complaint had been pending at OSHA for over a year without a decision. Again, this is commonplace. Congress has given OSHA responsibility to investigate whistleblower complaints under 22 laws, but has failed to give OSHA the funds needed for all these investigations. Dr. Tamosaitis gave notice that he was exercising his right to file his case in U.S. District Court. OSHA dismissed his case in response to the notice that he was filing in court.

Dr. Tamosaitis filed his case against URS (both the parent and subsidiary) and the U.S. Department of Energy. He filed a separate state court lawsuit against Bechtel for interfering in his contract of employment.

The district court was not as helpful as whistleblowers would want. Instead of recognizing the tremendous service Dr. Tamosaitis gave to the American people and the planet, it looked for ways to dismiss his case. When DOE and URS Corp. complained that the OSHA complaint had been pending against them for less than a full year (just 11 months), the district court agreed to dismiss them. The district court also declared that Dr. Tamosaitis was not entitled to a jury trial because the claim seeks to vindicate a “public right.” Finally, the court said that Bechtel made the decision to eject Dr. Tamosaitis, so URS’ subsidiary was not liable for that either. 
 
Dr. Tamosaitis appealed to the Ninth Circuit. Initially, the appeals court reviewed the facts. The court recognized that nuclear mishaps can lead to a “criticality accident,” especially if combined with hydrogen gas. However, the court misunderstood the nature of radioactive decay. The opinion states that the nuclear waste will “lose its radioactivity” “[o]ver hundreds of years[.]” This time scale of mere centuries would be so much better if it were true. The words “half-life” do not appear in the court’s analysis.

Next, the court looked at the “exhaustion” issue. Since the ERA does not require whistleblowers to exhaust the entire DOL process, but lets them “kick-out” to federal court, I would not call this requirement “exhaustion.” It is actually a charge-filing requirement, not exhaustion. Nevertheless, the court of appeals held that the purpose of the right to kick-out to federal court is to pressure DOL to resolve whistleblower cases more quickly. I think this is the wrong way to look at the kick-out provision. It is not for DOL’s benefit, but rather for the whistlelbower’s benefit. Seen this way, it is natural to conclude that Dr. Tamosaitis followed the correct procedure by filing in federal court once he had waited more than a year for OSHA. Looking through the eyes of the DOL, the appeals court said that Dr. Tamosaitis had not given the DOL enough time to investigate the claims against DOE and URS’ parent company. Their dismissal was upheld. 

This holding is unprecedented to my knowledge, In a footnote, the court agreed that this rule is different from the one used in Title VII cases filed with EEOC. The court said this was because EEOC’s role was to mediate cases whereas DOL-OSHA adjudicates cases. This distinction misses on both marks. EEOC does have the power to adjudicate cases by filing its own cases in federal court. EEOC thankfully does this in many important cases (although it has far to little funding to do it in all the meritorious case). Also, OSHA does not adjudicate cases, but investigates them. OSHA also tries to settle cases, and actually does settle most of the cases in which it finds merit. The outcome here shows the importance of understanding the real purpose of each provision of the law.

By Richard R. Renner

Wednesday, November 19, 2014

A Word to the Wise Federal Employee Claiming Discrimination: Cooperate

As many federal employees and their counsel know, to pursue a complaint of discrimination the employee must first "exhaust administrative remedies". This means, of course, that the employee must arrange for EEO counseling within the proper time period (45 days after a personnel action; or 45 days after the latest incident in a pattern of incidents that makes up a "hostile work environment"). After counseling is finished, the federal employee must file the formal EEO complaint within 15 days of receiving the Notice of the right to do so. Then, the employee must request an EEOC hearing within 30 days after receiving the Investigation Report. And, finally, if the employee wants to file in court, that must be done within 90 days after receiving the Government’s "final decision" on the complaint.

Although these deadlines, and others, are a challenge under any circumstances, there is another – more challenging – requirement awaiting federal employees: cooperation. For most employees, cooperation is not a problem; indeed, employees are so convinced they are the victim of discrimination it’s difficult to slow them down. Nevertheless, every now and then a case that has found its way to court hinges on whether the employee was – or was not – sufficiently cooperative.

Such a case was recently decided by the U.S. Court of Appeals for the District of Columbia Circuit. Koch v. SEC, 744 F.3d 162 (D.C.Cir. 2014). Koch was working for the Securities and Exchange Commission when he was diagnosed with a heart problem. He asked the Agency to grant him accommodation by modifying his work hours so he could undergo rehabilitation without using leave. After a year without a response, Koch consulted an EEO counselor and filed a formal EEO complaint. That’s when things got sticky.

As do many federal agencies, the SEC has a contract for investigating EEO complaints, and it assigned the investigation of Koch’s complaint to one of these contract investigators. The SEC informed Koch of this arrangement, and it also told him that he was "obligated to cooperate" with the investigation. Although Koch had provided his EEO counselor with his medical records concerning his heart condition, he was concerned that any medical records he gave the investigator would not be protected by the Privacy Act (which covers agency records) because the contract investigator was not an SEC employee.

Koch wanted assurance that the investigator’s contract included clauses applying the Privacy Act. The SEC showed Koch a copy of the non-disclosure agreement governing the investigator, but Koch felt this wasn’t sufficient. Moreover, the contract itself was unclear: the language invoking the Privacy Act was not actually in the contract, but was incorporated by reference. With that, Koch declined to authorize disclosure of his medical records to the investigator and he refused to provide an affidavit to the investigator as part of the investigation into Koch’s complaint. The Agency dismissed Koch’s complaint for failure to cooperate. 29 C.F.R. § 1614.107(a)(7).

Koch appealed the dismissal to the EEOC, which upheld the agency, and he then filed an action in district court. The court granted summary judgment to the SEC, finding that Koch’s failure to cooperate constituted a failure to exhaust his administrative remedies, and therefore he had no right to be in court. Koch appealed that decision to the D.C. Circuit. The court’s disposition of Koch’s appeal is a cautionary tale for EEO complainants.

The court first articulated the link between the complainant’s obligation to "cooperate" and the requirement that he exhaust his remedies: "A plaintiff’s suit ‘will be barred for failure to exhaust administrative remedies’ if he ‘forces an agency to dismiss or cancel the complaint by failing to provide sufficient information to enable the agency to investigate the claim’." Because the SEC made clear to Koch that it needed his testimony and his medical records, and Koch refused to provide either, he failed to provide the minimum information necessary for the investigation to proceed.

Koch argued that he had already given the medical records to the counselor. The court rejected this argument, noting that Koch had declined to authorize the agency to provide those records to the investigator. At bottom, because Koch refused to provide any information beyond what he gave the counselor, he failed to exhaust the EEO process.

Interestingly, the court rejected out of hand Koch’s contention that his reluctance to provide his medical records to the investigator should be excused because he was not given adequate assurances that his records would be protected by the Privacy Act. The court chastised Koch for making this argument given "the extensive privacy protections for his medical records included in the contract." However, because the court earlier acknowledged that these "extensive privacy protections" were not immediately clear, it is hard to see why Koch should have been aware of them.

Rather, the court appears to be most critical of Koch’s outright refusal to provide any information to the investigator. In retrospect, Koch would have been better served had he sat down with the investigator and prepared an affidavit setting forth his claims and the evidence he believed supported his claims. At that point, the Agency would have had to prove that the specific medical records were critical to the record. As it is, Koch provided no evidence whatever, and he took the risk that the SEC would dismiss the complaint rather than proceed under his demands.

Finally, it is not clear whether Koch was represented by counsel during the EEO process and what, if any, legal advice he was receiving. Clearly, however, counsel representing federal employees during the administrative process should inform their clients that a refusal to provide information pursuant to what may later be considered a reasonable request may result in a total dismissal of the complaint with no further possibility of relief.

For other cases involving an alleged failure to cooperate, see Rann v. Chao, 346 F.3d 192 (D.C.Cir. 2003) (complaint dismissed where employee refused to provide a signed affidavit); Wilson v. Pena, 79 F.3d 154 (D.C.Cir. 1996) (complaint would not be dismissed where agency had enough information to issue an earlier decision on the merits); Woodard v. Lehman, 717 F.2d 909 (4th Cir. 1983) (dismissal affirmed where, in response to a request for a statement detailing instances of discrimination, the complainants replied that there was enough information in the complaints).

 

Written by George Chuzi

Sunday, November 16, 2014

Social Security Administration Agrees to $10 Million Disability Discrimination Settlement


After almost ten years of litigation, the Social Security Administration has agreed to settle a major class action involving discrimination in promotion against employees with disabilities. The case is Ronald Jantz, et al. v. Astrue, Commissioner, Social Security Administration, EEOC No. 531-2006-00276X.   A review of the history of this litigation shows the arduous and lengthy course class action litigation often takes.  As often happens in class action litigation, the defendant very aggressively fought against certification of the class.  

The initial complainant, Ronald Jantz, is totally deaf.  He worked as a GS-12 Management Analyst for the Social Security Administration (SSA) in Baltimore, MD. He used a TDD for telephone usage, and had a personal assistant at work who typed for him on a laptop computer when he attended meetings, training or conferences.  In 2005, Jantz applied for several GS-13 Lead Management Analyst positions.  He made the “Best Qualified List” (BQL), but was not selected.

In 2005, Jantz filed an EEO complaint and sought to serve as the class agent in a class action complaint.  Jantz provided statistics that showed that non-disabled candidates who made the BQL had an 11% likelihood of being selected, whereas disabled candidates had only a 7% likelihood.  He sought to bring his case as a class action, representing all “targeted” disabled candidates who made the BQL but were not selected. The EEOC defines “targeted” disabilities as: deafness, blindness, missing extremities, partial paralysis, complete paralysis, convulsive disorders, mental retardation, mental illness, and genetic and physical conditions affecting limbs and/or spine. EEOC Management Directive 715 (MD-715). Jantz argued that the SSA gave selecting officials unfettered discretion and allowed for unchecked subjective decision-making.  

Three years later, in 2008, the EEOC Administrative Judge certified a class defined as, “All current and former employees with targeted disabilities at the Social Security Administration who, on or after August 22, 2003, have applied for and made a Best Qualified List for promotion, but were not selected for promotion.” 

The agency rejected the Administrative Judge’s decision, and issued a final decision denying class certification.  Jantz appealed this decision, and two years later, the EEOC Office of Federal Operations agreed with Jantz and reinstated the class certification.  

In response, the agency moved for reconsideration, on the grounds that the US Supreme Court had just agreed to hear a class certification issue, Dukes v. Walmart, 603 F.3d 571 (9th Cir. 2010). The EEOC denied this motion.  But in 2011, when the Supreme Court issued the Dukes decision, 131 S. Ct. 2541 (2011)a seminal ruling in class action employment law, the agency petitioned the EEOC to decertify the class.  Three years later, in 2014, the EEOC Administrative Judge denied this motion.    

This past summer, the AJ agreed to put the case on hold so that the parties could engage in mediation, with a retired United States Magistrate Judge serving as mediator.  On Sept. 30, 2014, the parties entered into a final and binding settlement agreement

Pursuant to the agreement, the SSA will establish a $10 million fund for the payment of claims to eligible class members, as well as Class Counsel’s legal fees and expenses, and payments to Mr. Jantz and the other class agents, as well as administrative costs.  The SSA also agreed to a package of extensive programmatic changes that are designed to retain and support employees with disabilities and to broadly enhance the opportunities for career success and advancement of such employees. These programmatic changes include major revisions to SSA’s reasonable accommodation processes, technology processes, training content, and provision of assistive supports for Agency employees with disabilities. The reasonable accommodation changes, in particular, will create a new centralized office where a multidisciplinary team of specialists will promptly and expertly handle requests that do not lend themselves to ready approval by a first-line manager.

Employees contemplating serving as class agents and bring class actions need to be aware that employers will aggressively oppose the certification of the class, meaning that any personal relief to the class members will be far in the future. 

-- This blog entry was written by Elizabeth L. Newman.  You may reach her at enewman@kcnlaw.com.