## Facts

- The Department of Energy (DOE) oversaw cleanup at the Hanford Nuclear Site and contracted with Bechtel National, Inc. (Bechtel) for work on a Waste Treatment Plant; URS Energy & Construction, Inc. (URS Energy) served as a subcontractor and employed Dr. Walter Tamosaitis as a senior engineer.
- Tamosaitis led a study addressing a significant design issue involving waste mixing in large tanks and recommended extending the resolution deadline from June 2010 to September 2010.
- Evidence indicated that missing the June 2010 deadline could jeopardize a multi-million-dollar fee, creating pressure to declare the design issue resolved.
- After Bechtel rejected the extension and treated the issue as resolved, Tamosaitis raised environmental and safety concerns at a Bechtel meeting and forwarded those concerns to URS and others.
- Soon after, URS Energy removed Tamosaitis from the project and reassigned him to a basement office in another building; he characterized the reassignment as a retaliatory demotion. URS offered other jobs requiring relocation, which he declined.
- On July 30, 2010, Tamosaitis filed an administrative whistleblower complaint with the Department of Labor (OSHA) under the Energy Reorganization Act (ERA), naming “URS, Inc.” as respondent.
- On December 15, 2010, he amended the administrative caption to name URS Corporation (URS Corp.) and URS Energy and to add DOE.
- More than one year after the initial OSHA filing, he sued in federal court against DOE, URS Corp., and URS Energy for retaliation under the ERA.
- The district court dismissed DOE and granted summary judgment to URS Corp. and URS Energy, largely on administrative exhaustion grounds; it also held the evidence against URS Energy was insufficient on causation.

## Issues

1. Whether the ERA’s opt-out provision permits a federal retaliation suit against a respondent that has not had at least one year’s notice of, and opportunity to participate in, the Department of Labor proceedings.
2. Whether Tamosaitis administratively exhausted as to (a) DOE, (b) URS Corp., and (c) URS Energy, given the amended administrative caption.
3. Whether, on the merits, Tamosaitis presented sufficient evidence to create a triable issue that his protected safety activity was a contributing factor in URS Energy’s adverse employment actions.

## Decision

- Affirmed dismissal of DOE because DOE was added less than one year before the federal complaint and therefore lacked the required notice and opportunity to participate.
- Affirmed judgment for URS Corp. because it was not timely identified as a respondent for the required one-year period.
- Reversed summary judgment for URS Energy on exhaustion because the original administrative complaint, though misnaming the employer, provided sufficient notice to the actual employing entity for the required period.
- Reversed summary judgment for URS Energy on the merits because the record contained evidence supporting a triable issue that protected activity contributed to the adverse reassignment.
- Remanded for further proceedings.

## Legal Principles

- Under the ERA opt-out provision, a plaintiff may proceed in federal court only against a respondent that has had notice of, and an opportunity to participate in, the administrative action for at least one year.
- The one-year period is respondent-specific; adding a new respondent starts the one-year period anew for that respondent.
- Correcting a misnomer or clarifying the identity of an already-noticed respondent does not restart the one-year period when the original filing adequately identified the employer to provide notice.
- To defeat summary judgment under the ERA’s retaliation framework, an employee may rely on circumstantial evidence (including close timing and the nature of safety complaints) to show protected activity was a contributing factor in an adverse employment action.

## Conclusion

The Ninth Circuit held that ERA opt-out exhaustion turns on whether each respondent had a full year of notice and participation opportunity in the administrative process, affirming dismissal of DOE and the parent company while reviving the claim against the employing subcontractor because the initial administrative filing adequately notified it and the retaliation evidence raised a triable issue.


Tamosaitis v. URS Inc., 781 F.3d 468 (9th Cir. 2015)