(CN) – A manager who was demoted after raising environmental and safety concerns at the Hanford Nuclear Site can sue his employer for retaliation, the 9th Circuit ruled.
The Hanford Nuclear Plant in southeastern Washington was commissioned to produce plutonium for nuclear weapons during World War II.
The plant was mostly decommissioned by 1971, but groundwater around the Columbia River became contaminated by radioactive waste stored underground.
The site is now controlled by the U.S. Department of Energy, which led the clean-up effort.
The Department of Energy contracted with Bechtel National to develop a waste treatment plant, which is still being built. Bechtel subcontracts with URS Energy & Construction to work on the multibillion-dollar plant.
Plaintiff Walter Tamosaitis, Ph.D., a research and technical manager for URS, led a study to review technical challenges for the plant. While most of the issues were resolved, one issue regarding “M3 mixing” involved a design problem with tanks at the plant.
The mixing process involves turning radioactive waste into a glass form, using pulse jet mixers.
That issue was “a lingering and complex challenge,” a three-judge panel of the 9th Circuit wrote in its Nov. 7 ruling, and Tamosaitis wanted to extend the deadline to solve it.
Bechtel wanted the mixing issue resolved by June 2010, so as not to jeopardize its $6 million fee, and closed the issue.
Tamosaitis then presented a list of 50 safety and environmental concerns to a meeting Bechtel hosted, and contacted other people involved in the plant project.
He emailed several plant consultants “hoping that they would oppose closure and publicize his concerns,” according to the 9th Circuit’s summary of facts.
A URS operations manager fired Tamosaitis two days later, and he was reassigned to another position away from Hanford.
Tamosaitis sued URS, Bechtel and the Energy Department in November 2011, under federal whistleblower protection laws the Energy Reorganization Act.
The Energy Department was dismissed from the lawsuit in Washington’s Eastern District.
U.S. District Judge Lonny R. Suko found “nothing in the record created a genuine issue of material fact that URS Energy & Construction has discriminated [against Tamosaitis] with respect to compensation, terms, conditions, or privileges of employment in violation of the ERA.”
Suko also denied Tamosaitis’s request for a jury trial.
Tamosaitis appealed to the 9th Circuit.
Writing for the panel, 9th Circuit Judge Marsha Berzon noted that email chains showed “Bechtel and DOE were extremely unhappy with Tamosaitis’s participation in protected activity and wanted him off the project.”
“A reasonable factfinder could infer not only that the retaliatory motive of URS E&C’s customer, Bechtel, spurred URC E&C’s actions against Tamosaitis, but also that URS E&C knowingly acquiesced in or ratified Bechtel’s retaliation,” Berzon wrote.
“Since Tamosaitis has shown that his protected activity was a ‘contributing factor’ in the adverse employment action he suffered, he has met his burden for establishing a prima facie case of retaliation under the ERA.”
The 9th Circuit reversed the district court’s summary judgment order for URS Energy & Construction, and found that Tamosaitis had a constitutional right to a jury trial against his employer.
Berzon was joined by Chief Circuit Judge Alex Kozinski and Circuit Judge Richard Paez.
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