Landfill Whistle-Blower Loses Bid to Keep Job

(CN) - A whistle-blower who reported the dumping of radiological waste at a uranium enrichment facility cannot sue to keep his job after the plant's waste management was contracted to a new company, the 6th Circuit ruled.

Gary Vander Boegh worked for Weskem as a landfill manager at the Paducah Gaseous Diffusion Plant in Paducah, Ky., from 1992 until 2005.

During that time, he reported that the uranium enrichment plant had been illegally dumping radiological waste, contaminating the groundwater. This revelation qualified Vander Boegh for whistleblower protections.

But in 2005, the Department of Energy contracted waste management services to a new company, EnergySolutions.

Vander Boegh applied to be the new landfill manager, but was not hired. He claims EnergySolutions chose another candidate because of his prior whistleblower activity.

The 6th Circuit affirmed Tuesday that Vander Boegh cannot sue EnergySolutions for employment discrimination because he was just an applicant - not an employee.

"The plain meaning of 'employee' does not plausibly extend to Vander Boegh because he never worked for EnergySolutions," U.S. Circuit Judge Richard Griffin said, writing for the three-judge panel.

Vander Boegh conceded that he was never an EnergySolutions employee, but argued for a broader definition of "employee," because he was essentially "blacklisted."

But even if this were true, Vander Boegh is not even a former employee of EnergySolutions, the court said.

Griffin also said Vander Boegh failed to "present any evidence beyond his personal belief that he was a grandfathered employee under the new contract."

Finally, the three-judge panel said Vander Boegh also cannot sue under federal environmental law, because he did not first exhaust his administrative remedies by filing a complaint with the Department of Labor.

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