On February 12, 2016, the Ninth Circuit rejected a former maintenance manger’s whistleblower retaliation claims under the Energy Reorganization Act, 42 U.S.C. § 5851 (“ERA”), concluding that he failed to engage in in a protected activity.  Sanders v. Energy Northwest, No. 14-cv-35368.

Plaintiff David Sanders alleged that Defendant Energy Northwest (Company) terminated his employment after he objected to the “severity level” designation of an internal “condition report” concerning access badges.  A “condition report” is a report generated by employees when safety procedures may have been violated.  The Company maintained that it terminated his employment after determining that he improperly approved temporary staffing per diem and travel payments to the father of his daughter’s child.

The United States District Court for the Eastern District of Washington granted the Company summary judgment, concluding that Plaintiff failed to allege protected activity under the ERA.  The Ninth Circuit affirmed in a 2-1 decision.  The Majority explained that Plaintiff “had no independent knowledge of possible safety violations prior to the creation of the internal condition reports at issue” and the essence of Plaintiff’s complaint merely concerned “what level of inquiry” the condition report warranted.  Thus, Plaintiff’s “single expression of a difference of opinion about the [severity level] designation of one existing internal condition report lacks a sufficient nexus to a concrete, ongoing safety concern.”  The Majority likewise noted that the Company was already aware of the potential safety violations and its internal process for remediation was underway.

This decision is valuable to employers facing ERA whistleblower claims, as it shows that courts may not be willing to characterize as a “protected activity” any complaint that touches on a safety concern. Instead, a plaintiff’s complaint needs to have a sufficient relationship to a concrete, ongoing safety concern.