DAVID W. SANDERS, Plaintiff-Appellant,
ENERGY NORTHWEST, a Washington municipal corporation, Defendant-Appellee
Argued and Submitted, Richland, Washington November
Appeal from the United States District Court for the Eastern District of Washington. D.C. No. 2:12-cv-00580-TOR. Thomas O. Rice, District Judge, Presiding.
Affirming the district court's summary judgment on a claim of whistleblower retaliation in violation of the Energy Reorganization Act, the panel held that the plaintiff did not engage in protected activity when he objected to the security level designation given to an internal " condition report" of a safety procedure violation concerning access badges.
Dissenting, Judge Graber wrote that the majority wrongly narrowed the scope of the Energy Reorganization Act by rejecting the whistleblower claim on the basis that the safety problems were not overlooked, neglected, or concealed by management and were not concrete and ongoing issues.
David Whedbee (argued), MacDonald Hoague & Bayless, Seattle, Washington, for Plaintiff-Appellant.
William G. Miossi (argued) and Matthew W. Lewis, Winston & Strawn LLP, Washington, D.C.; Angel D. Rains and Robert A. Dutton, Office of General Counsel, Energy Northwest, Richland, Washington, for Defendant-Appellee.
Before: Edward Leavy, Susan P. Graber, and Richard C. Tallman, Circuit Judges. Opinion by Judge Leavy; Dissent by Judge Graber.
Edward Leavy, Senior Circuit Judge:
David W. Sanders appeals the grant of summary judgment to his former employer, Energy Northwest, on his claims of retaliation in violation 42 U.S.C. § 5851 of the Energy Reorganization Act (" the Act" ). We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Keenan v. Allan, 91 F.3d 1275, 1278 (9th Cir. 1996), and we affirm.
Energy Northwest is a Washington municipal corporation that owns and operates a nuclear power plant in Richland, Washington. Sanders was a maintenance manager whose responsibilities included overseeing maintenance contractors working at the power plant. Sanders also administered temporary staffing contracts for Energy Northwest. Energy Northwest terminated Sanders' employment in April, 2011, after nineteen years of employment. Energy Northwest maintains that it terminated Sanders after determining that he had improperly approved temporary staffing per diem and travel payments to the father of his daughter's child. Sanders maintains that he was terminated for protected behavior under the whistleblower retaliation provision of 42 U.S.C. § 5851. Namely, Sanders claims his objection to the severity level designation of an internal " condition report" constitutes protected activity under the Act.
A " condition report" is a report generated by employees when safety procedures may have been violated. Energy Northwest, as a Nuclear Regulatory Commission licensee, is required to maintain an internal system for documenting potential safety violations. See 10 C.F.R. § 21.21 (requiring the adoption of reporting procedures for noncompliance with safety standards, including evaluation and recordkeeping requirements). Employees are encouraged to create condition reports on any issue perceived to pose safety concerns. Once a condition report is created, a condition review group meets to determine the severity level of the report. The condition review group is composed of managers in various departments. This group reviews each condition report and assigns a severity level in decreasing order of severity: " Alpha," " Bravo," " Charlie," or " Delta," with Alpha requiring the most effort to review and correct. The condition review group has ...