Discrimination and retaliation

Nuclear Power Plant Supervisor Not a Whistleblower

Energy Northwest operates a nuclear power plant in Richland, Washington. Sanders, a maintenance manager, administered temporary staffing contracts for Energy. After nineteen years of employment, Energy terminated Sanders’ employment because he  improperly approved temporary staffing per diem and travel payments to the father of his daughter’s child. Sanders claimed he was a whistleblower, and Energy terminated him because he objected to the severity level designation of an internal “condition report,” in violation of  42 U.S.C. § 5851. A “condition report” is a report generated by employees when safety procedures may have been violated.

The whistleblower retaliation provision of the Act, 42 U.S.C. § 5851,FN:1 protects energy workers who report or otherwise act upon safety concerns. The statute specifically prohibits employers from discharging or otherwise discriminating against employees for several enumerated acts, including notifying an employer of a violation, initiating an enforcement proceeding, or testifying in a safety or enforcement proceeding. See 42 U.S.C. § 5851(a)(1)(A–E). The statute also includes a catch-all provision protecting employees “in any other action to carry out the purposes of this chapter . . . .” Id. at § 5851(a)(1)(F).

Sanders had no independent knowledge of possible safety violations prior to the creation of the internal condition reports at issue. Sanders did not generate the condition reports and Energy was already aware of the potential safety violations, and its internal process for remediation was underway. According to the majority opinion, the safety problems Sanders identified were not “overlooked, neglected, or concealed by management” and were not “concrete [and] ongoing” issues. The court found that Sanders’ conduct fell outside the scope of the Act’s protection, and the district court properly granted summary judgment. Sanders tried to amend his complaint to include state-law disability and retaliation claims, but the court denied the motion, in part, because it was made less than three weeks before the close of discovery and a year after filing the complaint.