Opposing Employer's Labeling of Safety Issue Not Protected Activity

By Emily G. Camastra Mar 9, 2016
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An employee’s single expression of disagreement about how his employer should label the seriousness of an already identified safety concern did not constitute protected whistle-blower activity, according to the 9th U.S. Circuit Court of Appeals.

Energy Northwest owns and operates a nuclear power plant in Washington state, and it employed David Sanders as a maintenance manager. In April 2011, Energy Northwest terminated Sanders for improperly approving staffing per diem and travel payments. Sanders sued Energy Northwest, claiming that the company’s real reason for terminating his employment was because he had objected to the severity-level designation of an ongoing safety investigation. Sanders alleged that this violated the whistle-blower retaliation provision of the Energy Reorganization Act (ERA). 

As a nuclear power plant, Energy Northwest is required to maintain a system for documenting potential safety violations. Employees are encouraged to create “condition reports” on any issues that they believe pose safety threats. Once a condition report is created, the company charges a review board with determining the severity level of the issue by designating it as either “Alpha,” “Bravo,” “Charlie” or “Delta”—with the “Alpha” label being the most serious and requiring the most effort to review and correct. 

In October 2010, Sanders was given responsibility for a “Bravo” condition report. Two weeks later, a co-manager was given responsibility for a “Charlie” condition report that involved the same issue. Sanders objected to this “Charlie” designation and stated that he believed it should be labeled as “Bravo,” but he ultimately let it go. 

The lower court dismissed Sanders’ claim on the ground that he was not entitled to whistle-blower protections, finding that he had not established that he engaged in “protected activity” under the ERA. 

On appeal, the 9th Circuit agreed that Sanders had not engaged in protected activity. Unlike other cases where employees were protected as whistle-blowers, Sanders did not generate the safety complaint himself and Energy Northwest was already aware of the potential safety violations and was undergoing the remediation process. There was no reason for Sanders to suspect that the safety issue would be overlooked or neglected. The court held, therefore, that Sanders’ single expression of a difference of opinion about the severity-level designation lacked a sufficient nexus to a concrete, ongoing safety concern. 

Thus, the 9th Circuit affirmed that Sanders’ conduct fell outside the scope of the ERA’s whistle-blower protections. 

Sanders v. Energy Northwest, 9th Cir., No. 14-3538 (Feb. 12, 2016). 

Professional Pointer: Courts have held that the ERA serves a broad, remedial purpose of protecting workers from retaliation based on their concerns for safety and quality. Thus, employers subject to the ERA should be cautious about taking adverse employment actions against employees who have recently expressed such safety and quality concerns. 

Emily G. Camastra is an attorney with Swerdlow Florence Sanchez Swerdlow & Wimmer, the Worklaw® Network member firm in Beverly Hills, Calif.

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