Walter Tamosaitis v. Urs Inc.

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WALTER L. TAMOSAITIS, PH.D., an No. 12-35924
individual,
Plaintiff-Appellant, D.C. No.
2:11-cv-05157-
v. LRS
URS INC., a Delaware corporation;
URS ENERGY AND CONSTRUCTION ORDER AND
INC., an Ohio corporation; U.S. AMENDED
DEPARTMENT OF ENERGY; URS OPINION
CORPORATION,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Washington
Lonny R. Suko, District Judge, Presiding
Argued and Submitted
November 7, 2013—Seattle, Washington
Filed November 7, 2014
Amended March 4, 2015
Before: Alex Kozinski, Chief Judge, and Richard A. Paez
and Marsha S. Berzon, Circuit Judges.
Order;
Opinion by Judge Berzon
2 TAMOSAITIS V. URS, INC.
SUMMARY*
Whistleblower / Energy Reorganization Act
The panel affirmed the district court’s dismissal of the
U.S. Department of Energy from the suit, affirmed the grant
of summary judgment in URS Corp.’s favor, and reversed the
grant of summary judgment for URS Energy & Construction,
Inc. in an action brought by a URS Energy employee alleging
violations of the Energy Reorganization Act whistleblower
protection provision, concerning cleanup efforts of nuclear
waste at the Hanford Nuclear Site in Washington state.
The “opt-out” provision of the Energy Reorganization Act
(“ERA”), 42 U.S.C. § 5851(b)(4), empowers whistleblowing
employees at nuclear energy sites to bring anti-retaliation
claims to federal court after one year of agency inaction. The
Department of Energy (“DOE”) led the effort to clean up the
pollution at Hanford, which included construction and
management of a Waste Treatment Plant. The Department
contracted with Bechtel National, Inc., which subcontracted
with URS Energy & Construction, Inc. (“URS Energy”) for
work on the project. URS Energy is a wholly-owned
subsidiary of URS Corporation.
Addressing the issue of administrative exhaustion, the
panel held that before an employee may opt out of the agency
process and bring a retaliation suit against a respondent in
federal court, the respondent must have had notice of, and an
opportunity to participate in, the agency action for one year.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
TAMOSAITIS V. URS, INC. 3
The panel affirmed the dismissal of DOE because there was
no administrative complaint pending against DOE for one
year before the employee filed suit against DOE in federal
court, and § 5851(b)(4)’s administrative exhaustion
requirement was not satisfied as against DOE. The panel
held that administrative exhaustion was sufficient as to URS
Energy where the employee gave adequate notice to URS
Energy that it was the named respondent to his complaint.
Finally, the panel affirmed the district court’s dismissal of
URS Corp. for lack of administrative exhaustion where URS
Corp. was not adequately named in the employee’s original
administrative complaint.
The panel held that the employee introduced sufficient
evidence to create a triable issue as to whether his
whistleblowing activity was a contributing factor in the
adverse employment action URS Energy took against him.
The panel also held that there was a genuine issue of fact as
to whether the employee’s compensation, terms, conditions,
or privileges of employment were affected by his transfer to
another position. Accordingly, the panel reversed the grant
of summary judgment to URS Energy for ERA whistleblower
retaliation.
The panel held that the employee did not have a statutory
jury trial right for his ERA whistleblower suit. The panel
held that the employee did have a constitutional right to a jury
trial for his claims seeking money damages under
§ 5851(b)(4), and reversed. The panel remanded for further
proceedings.
4 TAMOSAITIS V. URS, INC.
COUNSEL
John Sheridan (argued), Sheridan Law Firm, Seattle,
Washington; and Joseph R. Shaeffer, MacDonald Hoague &
Bayless, Seattle, Washington, for Plaintiff-Appellant.
Katherine Bushman Smith (argued), Trial Attorney, Office of
the General Counsel, United States Department of Energy,
Washington, D.C.; and Rolf Harry Tangvald, Assistant
United States Attorney, Office of the United States Attorney,
Spokane, Washington, for Defendant-Appellee Department
of Energy.
Matthew William Daley (argued), Timothy Michael Lawlor,
and Matthew A. Mensik, Witherspoon Kelley, Spokane,
Washington, for Defendants-Appellees URS Corporation,
URS Inc., and URS Energy and Construction, Inc.
TAMOSAITIS V. URS, INC. 5
ORDER
The panel has voted to amend its opinion filed November
7, 2014, and published at 771 F.3d 539, and to deny appellees
URS Corporation, URS Energy and Construction Inc., and
URS Inc.’s petition for rehearing and petition for rehearing en
banc with the following amendments:
On page 551, change to .
On page 557, note 9, change to .
The full court has been advised of the petition for
rehearing en banc, and no judge has requested a vote on
whether to rehear the matter en banc. Fed. R. App. P. 35.
The petition for rehearing is denied and the petition for
rehearing en banc is rejected. No further petitions for
rehearing or rehearing en banc will be entertained. The
mandate shall issue in due course.
6 TAMOSAITIS V. URS, INC.
OPINION
BERZON, Circuit Judge:
The Energy Reorganization Act (“ERA”), 42 U.S.C.
§ 5851(b)(4), includes an “opt-out” provision empowering
whistleblowing employees working at nuclear energy sites to
bring anti-retaliation claims to federal court after one year of
agency inaction. Our case concerns the interpretation and
application of that provision. In addition, we consider
whether a whistleblower who sues an employer in a federal
anti-retaliation lawsuit under the ERA opt-out provision has
a constitutional right to a jury trial.
I.
A. Background
The Hanford Nuclear Site is a former nuclear weapons
production facility in Washington state.1 Hanford’s reactors
produced plutonium for the national defense for over forty
years. The Hanford site abuts a river and stores fifty-three
million gallons of hazardous, high-level nuclear waste in
underground tanks. There are estimates that one million
gallons of nuclear waste have leaked from the storage tanks
into the ground and that the groundwater beneath eighty-five
square miles of the site is polluted.
1
This appeal requires us to consider the district court’s rulings at both
the motion to dismiss and summary judgment stage. We rely on the
allegations in the first amended complaint for our account of this appeal’s
background but turn to the evidentiary record when analyzing the
summary judgment rulings.
TAMOSAITIS V. URS, INC. 7
The Department of Energy (“DOE”) leads the effort to
clean up the pollution at Hanford. The clean-up plan includes
construction and management of a Waste Treatment Plant
(“WTP”) responsible for “separating and vitrifying
(immobilizing in glass) . . . nuclear tank waste.” Vitrification
involves mixing nuclear waste with glass-forming materials
at extremely high temperatures, then pouring the mixture into
stainless steel containers to cool and solidify it. Once
immobilized in glass, the nuclear waste generally is
considered stable and safe for storage. Over hundreds of
years, the waste will lose its radioactivity.
The building of the WTP is in process. When completed,
the WTP will be the largest such facility in the world. The
WTP is to have a “design life of forty years,” meaning that
some of its parts are to operate without maintenance for four
decades. The sound design of the WTP is important to
protect against occurrence of a “criticality accident” — a
nuclear chain reaction inside plutonium or enriched uranium.
Such reactions release radiation, which, particularly in
combination with hydrogen gas, could be catastrophic.
To assist in its clean-up effort at Hanford, DOE contracts
with Bechtel National, Inc. (“Bechtel”). Bechtel subcontracts
with URS Energy & Construction, Inc., (“URS E&C”) for
work on the WTP.
In the wake of a report detailing problems with the
Hanford clean-up, appellant Dr. Walter Tamosaitis, an
employee of URS E&C, was appointed to lead a study
reviewing technical challenges within the WTP project. The
study identified twenty-eight technical issues, twenty-seven
of which were “closed,” meaning resolved, by the planned
date of October 2009. The remaining issue, termed the “M3
8 TAMOSAITIS V. URS, INC.
mixing issue,” required solving a design problem concerning
the mixing of nuclear waste in certain of the WTP
pretreatment tanks.
The M3 mixing issue proved to be a lingering and
complex challenge. Tamosaitis wanted to extend the deadline
for solving the issue to September 2010, while Bechtel
wanted it resolved by June 2010. Failure to resolve the M3
mixing issue by June would have jeopardized Bechtel’s six-
million-dollar fee.
Bechtel rejected Tamosaitis’s advice and announced
closure of the M3 mixing issue by June. Tamosaitis objected:
He brought a fifty-point list of environmental and safety
concerns to a meeting hosted by Bechtel; forwarded the same
list to Bill Gay, a URS employee and WTP Assistant Project
Manager; and reached out to several WTP consultants by
email, hoping that they would oppose closure and publicize
his concerns.
Two days later, Tamosaitis was fired from the WTP
project. URS Operations Manager Dennis Hayes personally
terminated Tamosaitis. Hayes directed Tamosaitis to return
his badge, cell phone, and Blackberry, and leave the site
immediately. Tamosaitis was reassigned, in a non-
supervisory role, to a basement office in a URS facility off
the Hanford site. He was later offered other positions with
URS, but they required relocation.
B. The ERA Anti-Retaliation Provision
The anti-retaliation — or “whistleblower” protection —
provision of the ERA provides that:
TAMOSAITIS V. URS, INC. 9
No employer may discharge any employee or
otherwise discriminate against any employee
with respect to his compensation, terms,
conditions, or privileges of employment
because the employee . . . notified his
employer of an alleged violation of this
chapter [Development of Energy Sources] or
the Atomic Energy Act of 1954.
42 U.S.C. § 5851(a)(1)(A). This statute “protect[s] workers
from retaliation based on their concerns for safety and
quality,” Mackowiak v. Univ. Nuclear Sys., Inc., 735 F.2d
1159, 1163 (9th Cir. 1984), and ensures that the government
agencies charged with monitoring nuclear safety do not see
their “channels of information . . . dried up by employer
intimidation,” DeFord v. Sec’y of Labor, 700 F.2d 281, 286
(6th Cir. 1983) (quoting NLRB v. Scrivener, 405 U.S. 117,
122 (1972)).
The Department of Labor, Occupational Safety and
Health Administration (“DOL-OSHA”) implements this anti-
retaliation provision. See 29 C.F.R. §§ 24.100–24.105. An
employee seeking redress under section 5851 must file a
complaint with DOL-OSHA and follow the statutorily
designated administrative scheme, whereby:
Any employee who believes that he has been
discharged or otherwise discriminated against
by any person in violation of subsection (a) of
this section may, within 180 days after such
violation occurs, file (or have any person file
on his behalf) a complaint with the Secretary
of Labor (in this section referred to as the
“Secretary”) alleging such discharge or
10 TAMOSAITIS V. URS, INC.
discrimination. Upon receipt of such a
complaint, the Secretary shall notify the
person named in the complaint of the filing of
the complaint, the Commission, and the
Department of Energy.
42 U.S.C. § 5851(b)(1).
In 2005, Congress bolstered this whistleblower protection
by amending section 5851 to allow employees to take their
retaliation cases to federal district court if, after one year,
DOL-OSHA has not adjudicated their claim. Energy Policy
Act of 2005, Pub. L. No. 109-58, § 629, 119 Stat 594 (Aug.
8, 2005). The amendment adds the “opt-out” clause at issue
here, which provides:
If the Secretary has not issued a final decision
within 1 year after the filing of a complaint
. . . and there is no showing that such delay is
due to the bad faith of the person seeking
relief under this paragraph, such person may
bring an action at law or equity for de novo
review in the appropriate district court of the
United States, which shall have jurisdiction
over such an action without regard to the
amount in controversy.
42 U.S.C. § 5851(b)(4). Congress added the opt-out
provision to the statutory scheme to address “extensive delays
that . . . frustrated the purpose of [the] whistleblower
statutes.” H.R. Rep. No. 108-65, at 160 (2003).
TAMOSAITIS V. URS, INC. 11
C. Procedural Background
On July 30, 2010, Tamosaitis filed a discrimination action
with DOL-OSHA. He named “his employer, URS, Inc., a
contractor at the Hanford Nuclear Site,” as respondent, and
asserted workplace discrimination on account of activities
protected under the ERA. DOL-OSHA acknowledged receipt
of the complaint on August 13, 2010, and said it was
“providing the named party with a copy of [the] complaint
and information concerning OSHA’s responsibilities under
the law.”
URS Corporation (“URS Corp.”) responded to
Tamosaitis’s OSHA complaint by filing a position statement
with DOL-OSHA. On the second page of the document,
URS Corp. stated that “Mr. Tamosaitis’ employer is URS
Energy & Construction, Inc., a wholly-owned subsidiary of
URS Corporation. . . . As URS Energy & Construction, Inc.
employs Mr. Tamosaitis and is the party to the Subcontract,
references to URS in the remainder of this initial statement of
position are to URS Energy & Construction, and not URS
Corporation.” The eighteen-page position statement went on
to defend against Tamosaitis’s claims on the merits.
Tamosaitis amended the OSHA complaint twice: On
December 15, 2010, he added DOE and Bechtel as
defendants, and on September 7, 2011, he deleted Bechtel
because he was pursuing Bechtel in state court, and changed
the employer defendant from URS, Inc. to URS Corp. and
URS E&C. That same day, Tamosaitis gave notice that he
intended to bring an action in federal court pursuant to the
ERA’s opt-out provision. In response to Tamosaitis’s notice
of intent, DOL-OSHA dismissed the agency complaint.
12 TAMOSAITIS V. URS, INC.
Tamosaitis filed his complaint in federal court on
November 9, 2011, and his first amended complaint on
December 20, 2011. The suit names URS Corp., URS E&C,
and DOE as defendants, and alleges violations of the ERA
whistleblower protection provision, 42 U.S.C. § 5851.
Tamosaitis also requested a jury trial.
The district court granted DOE’s motion to dismiss,
ruling that Tamosaitis did not wait a full year after naming
DOE in his agency complaint and so did not exhaust his
administrative remedies against DOE.2 As to URS Corp. and
URS E&C, the district court granted summary judgment, also
for lack of administrative exhaustion, reasoning that
Tamosaitis was required to wait one year after changing the
named defendant from URS Inc. to URS Corp. and URS
E&C before filing suit in federal court. In addition, summary
judgment was granted to URS Corp. on the alternative ground
that Tamosaitis offered no evidence tending to show that
URS Corp. was anything but a parent corporation of
Tamosaitis’s employer, URS E&C, and that this parent-
subsidiary relationship was insufficient to establish liability
under the ERA. In a separate order, the district court granted
the URS defendants’ motion to strike Tamosaitis’s jury
demand, ruling that Tamosaitis had no statutory or
constitutional right to a trial by jury.
2
As alternative grounds for dismissing DOE from the suit, the district
court found that: (1) DOE did not qualify as an employer under the ERA’s
whistleblower protection provision; and (2) the complaint failed to state
a claim against DOE for which relief could be granted, because the court
lacked the power to order DOE to provide the equitable relief Tamosaitis
requested.
TAMOSAITIS V. URS, INC. 13
Finally, with regard to URS E&C, the district court held,
alternatively, that there was no genuine issue of material fact
as to whether URS E&C “took adverse action because of
[Tamosaitis’s] conduct.” All the evidence, the district court
ruled, showed that Bechtel, not URS E&C, “was solely
responsible for [Tamosaitis’s] removal from the WTP project
and is the entity which ‘took adverse action’ against him.” In
addition, the court concluded that, although Tamosaitis was
taken off the WTP project at Hanford, he was not fired from
URS E&C, and “[n]othing in the record create[d] a genuine
issue of material fact that URS E&C has discriminated
[against him] with respect to his compensation, terms,
conditions, or privileges of employment in violation of the
ERA.”
Tamosaitis timely appealed the partial dismissal, the
denial of jury trial, and the grant of summary judgment.
II.
A. Administrative Exhaustion
(1) The district court ruled that the ERA opt-out
provision requires employees to wait one full year after
naming a particular respondent in a DOL-OSHA complaint
before bringing a federal suit against that respondent. Thus,
concluded the court, because Tamosaitis did not wait until
December 15, 2011, to sue DOE and until September 7, 2012,
to sue URS Corp. and URS E&C, he did not exhaust his
14 TAMOSAITIS V. URS, INC.
administrative remedies against these defendants before filing
suit and may not proceed in federal court.3
We agree that, as a general rule, adding a new respondent
to an administrative complaint restarts the one-year
exhaustion clock as to that person. As we later explain, that
conclusion leads us to affirm the district court’s dismissal of
two of the appellees in this case, DOE and URS Corp., but
not the third, URS E&C.
First, the structure of section 5851 indicates that the
administrative exhaustion period is linked to a particular
respondent, not to the substance of the claim alone: Section
5851 provides that the Secretary of Labor is to “notify the
person named in the complaint of the filing of the complaint,”
42 U.S.C. § 5851(b)(1) (emphasis added); investigate the
“violation alleged in the complaint[,]” and “notify . . . the
person alleged to have committed such violation of the results
of the investigation,” 42 U.S.C. § 5851(b)(2)(A) (emphasis
added); and, where appropriate, enter a settlement “with the
person alleged to have committed [the] violation,” id.
(emphasis added). Knowing the identity of the respondent is
thus a critical component of carrying out the prescribed
procedure within the agency.
Second, like the statute, DOL-OSHA regulations assume
that every ERA whistleblower administrative complaint will
name a particular respondent or respondents, and that the
named individuals will have an opportunity to participate
3
Whether the one-year exhaustion requirement is terminated by the
filing of the notice of intent to remove to federal district court or by the
date of filing of the complaint in federal district court makes no difference
in this case. We therefore do not address this question.
TAMOSAITIS V. URS, INC. 15
throughout the agency’s adjudicative process. The
regulations provide that “the Assistant Secretary will notify
the respondent of the filing of the complaint,” 29 C.F.R.
§ 24.104(a); that “the respondent may submit to the Assistant
Secretary a written statement and any affidavits or documents
substantiating its position,” 29 C.F.R. § 24.104(b); and that
the agency “will provide to the complainant . . . a copy of all
of respondent’s submissions to the agency,” 29 U.S.C.
§ 24.104(c). The agency regulations define “respondent” as
“the employer named in the complaint, who is alleged to have
violated” the anti-retaliation statute. 29 C.F.R. § 24.101.
Unless such a respondent is “named in the complaint,” id.,
that individual or entity may not have the benefit of notice or
the opportunity to participate in the agency’s complaint
review process, and the agency may not have occasion to
consider that respondent’s submission of position.
Third, although the opt-out provision speaks in general
terms and makes no specific mention of respondents,
defendants, or employers, that provision contemplates a basic
level of similarity between an agency action and the
corresponding federal suit. The opt-out clause provides that
after one year of agency inaction the employee “may bring an
action . . . for de novo review.” 42 U.S.C. § 5851(b)(4).
“[D]e novo review” is a term of art that, in the administrative
context, generally refers to “[a] court’s nondeferential review
of an administrative decision, usu[ally] through a review of
the administrative record plus any additional evidence the
parties present.” Black’s Law Dictionary (9th ed. 2009).
“[D]e novo review” of an agency action for which there is no
final agency decision, as will inevitably be the case in actions
under section 5851(b)(4), differs in important ways from
judicial review of a final agency decision. See Stone v.
Instrumentation Lab. Co., 591 F.3d 239, 246–47 (4th Cir.
16 TAMOSAITIS V. URS, INC.
2009). Still, Congress’s characterization of the opt-out action
as review of the agency proceedings indicates that the district
court litigation is tied to the case and the parties that were
before the agency.
Finally, allowing an employee to sue a defendant who
was not a respondent in the administrative proceedings for a
full year before the case was moved to federal court would
severely undermine the efficacy of the administrative
exhaustion scheme.
Exhaustion is generally required as a matter of
preventing premature interference with
agency processes, so that the agency may
function efficiently and so that it may have an
opportunity to correct its own errors, to afford
the parties and the courts the benefit of its
experience and expertise, and to compile a
record which is adequate for judicial review.
Weinberger v. Salfi, 422 U.S. 749, 765 (1975). If there were
no requirement of parity between the respondents in an
agency action under the ERA and the defendants named in a
corresponding ERA whistleblower federal lawsuit, an
employee could file a DOL-OSHA complaint, add an entirely
new respondent a year later, and — even if neither the new
respondent nor the agency had notice of the new respondent’s
involvement in the retaliation — proceed to federal court
against the new respondent the very next day. By doing so,
the employee would effectively make it impossible for the
TAMOSAITIS V. URS, INC. 17
agency to investigate the allegations against the new
respondent and create a record concerning that respondent.4
A primary purpose of the opt-out provision is to
encourage DOL-OSHA to resolve whistleblower claims
promptly. We cannot expect DOL-OSHA to resolve claims
against unknown respondents who have no opportunity to
participate in the administrative process. Allowing the opt-
out provision to become a mechanism for bypassing
Congress’s carefully constructed scheme would frustrate the
congressional intent that whistleblower claims be resolved at
the agency level, if possible.5
4
The opt-out provision also provides that a complainant may bring suit
in federal court only if there is “no showing that such delay is due to the
bad faith of the person seeking relief under this paragraph.” 42 U.S.C.
§ 5851(b)(4). This requirement arguably would defeat district court
jurisdiction if the employee purposely waited until the last minute to add
a respondent to his agency complaint, so as to curtail the administrative
process and obtain de novo review in district court (as opposed to
deferential review in a circuit court of appeals following a final agency
decision). But assuming, without deciding, that the bad-faith provision
applies to this scenario does not resolve the issue this case raises.
Whether motivated by benign or manipulative intent, the negative impact
of belatedly adding a new respondent to the agency review process is the
same.
5
The conclusion we reach today on the exhaustion question differs from
the precedent in the Title VII realm. “‘Title VII charges can be brought
against persons not named in an EEOC complaint as long as they were
involved in the acts giving rise to the EEOC claims.’” EEOC v. Nat’l
Educ. Ass’n, Alaska, 422 F.3d 840, 847 (9th Cir. 2005) (quoting Sosa v.
Hiraoka, 920 F.2d 1451, 1458–59 (9th Cir. 1990)). “‘[W]here the EEOC
or defendants themselves should have anticipated that the claimant would
name those defendants in a Title VII suit, the court has jurisdiction over
those defendants even though they were not named in the EEOC charge.’”
Id. (quoting Sosa, 920 F.2d at 1459) (internal quotation marks omitted);
see also Ortez v. Washington Cnty., 88 F.3d 804, 808 (9th Cir. 1996).
18 TAMOSAITIS V. URS, INC.
Accordingly, we hold that before an employee may opt
out of the agency process and bring a retaliation suit against
a respondent in federal court, that respondent must have had
notice of, and an opportunity to participate in, the agency
action for one year. The format and level of specificity
required to “name” a respondent in an agency complaint is a
separate question, which we address in due course as it
applies to this case.
(2) Given our holding regarding the need to identify
respondents, Tamosaitis’s claim against DOE fails for lack of
administrative exhaustion. Tamosaitis’s first agency
complaint did not name DOE as a respondent, did not
indicate that Tamosaitis intended to name DOE as a
respondent, did not attribute any adverse employment actions
to DOE, and did not allege that DOE participated in any of
the actions from which Tamosaitis’s complaint arose. The
only role attributed to DOE in the original complaint is its
status as manager of the Hanford site.
Not until the first amended OSHA complaint did
Tamosaitis allege “DOE[’s] possible involv[e]ment in
retaliation,” asserting that DOE was upset about an email that
Tamosaitis sent out, and that he was removed “at the
direction of . . . DOE WTP Federal Project Director Dale
Knudson.” But as these allegations against DOE were not
made one year before Tamosaitis opted out of the
This difference reflects an important distinction between agency
proceedings under Title VII and the ERA: Whereas EEOC proceedings
under Title VII involve “informal methods of conference, conciliation, and
persuasion,” 42 U.S.C. § 2000e-5(b), ERA proceedings before DOL-
OSHA are geared towards adjudication of a retaliation claim on the
merits, see 29 C.F.R. § 24.105(a).
TAMOSAITIS V. URS, INC. 19
administrative review process, DOL-OSHA did not have the
statutorily required period to consider them.
Because there was no administrative complaint pending
against DOE for one year before Tamosaitis filed suit against
DOE in federal court, section 5851(b)(4)’s administrative
exhaustion requirement was not satisfied as against DOE.
Accordingly, we affirm the dismissal of DOE from this
litigation.6
(3) The district court ruled, and the URS entities
maintain, that Tamosaitis similarly failed to exhaust his
administrative remedies against them. According to the
district court, once Tamosaitis changed respondent URS Inc.
to URS Corp. and URS E&C, Tamosaitis had to wait another
full year before bringing the suit to federal court against these
defendants. We agree as to URS Corp. but not as to URS
E&C.
The situation of URS E&C differs from that of both DOE
and URS Corp. in a critical respect: The original complaint
adequately notified URS E&C that it was the intended
respondent. Accordingly, URS E&C’s position was fully
presented to the agency. URS E&C was therefore adequately
named in the original complaint.
Tamosaitis’s first agency complaint named “URS Inc.” as
respondent, but made clear that the intended respondent was
“his employer” and the “Principal Subcontractor to Bechtel
6
We note that Tamosaitis made no effort to file a separate suit against
DOE, or to amend the complaint in this suit, once the year had expired.
We therefore do not address whether the case against DOE could have
gone forward had he done so.
20 TAMOSAITIS V. URS, INC.
. . . in a government contract . . . at the Hanford Nuclear
Site.” URS Corp. and URS E&C responded to Tamosaitis’s
administrative complaint in an eighteen-page position
statement to DOL-OSHA. The statement acknowledges that
Tamosaitis could only be referring to URS E&C, and explains
the relationship between the URS entities, Bechtel, and
Tamosaitis, as follows:
Mr. Tamosaitis’ employer is URS Energy &
Construction, Inc., a wholly-owned subsidiary
of URS Corporation. URS Energy &
Construction, Inc., held the name Washington
Group International, Inc. (“WG”) when it
entered into the WTP contract with BNI
[Bechtel] (“the Subcontract”). Once URS
acquired WG in November 2007, WG began
doing business as the Washington Division of
URS. It continued to conduct business in this
name until February 2010 when the WG name
was formally changed to URS Energy &
Construction, Inc.
The position statement then goes on to acknowledge that
URS E&C “employs Mr. Tamosaitis and is the party to the
Subcontract.”
The response addresses the merits of Tamosaitis’s
allegations in depth, attaching evidence in support of its
position. At no point in the statement do the URS entities
assert Tamosaitis’s mistake in naming URS Inc. instead of
URS E&C as a defense to the agency complaint.
Had URS E&C argued before DOL-OSHA that it was not
adequately named in Tamosaitis’s complaint, the argument
TAMOSAITIS V. URS, INC. 21
would not have had merit. Administrative complaints are
generally less formal than their judicial counterparts.
“[A]dministrative pleadings are liberally construed and easily
amended.” Donovan v. Royal Logging Co., 645 F.2d 822,
826 (9th Cir. 1981).
Administrative complaints under the ERA’s anti-
retaliation provision fit this general mold. The whistleblower
regulations make clear that “[n]o particular form of complaint
is required.” 29 C.F.R. § 24.103(b). Complaints may be
made orally and reduced to writing by the agency. Id.
OSHA’s whistleblower manual confirms that employees are
generally free to amend their complaints throughout the
agency investigation so long as the amendment “falls within
the scope of the original complaint.” U.S. Dep’t of Labor,
OSHA Instruction, “Whistleblower Investigations Manual,”
§ 3–13 (Sept. 20, 2011).
Further, under the ERA, DOL-OSHA complaints must be
filed within 180 days of the alleged retaliatory conduct.
42 U.S.C. § 5851(b)(1). Combined with the accepted
informality and fluidity of agency pleadings, this brief
window means that some employees will misstate the exact
name of an intended respondent, as Tamosaitis did with
respect to URS E&C. Where, as here, neither the correct
respondent nor DOL-OSHA had any difficulty identifying the
proper respondent, a whistleblower’s technical mistake in
providing the precise name of the proper respondent should
not be dispositive.
In short, Tamosaitis gave adequate notice to URS E&C
that it was the named respondent to his complaint, such that
URS E&C could be defended, and in fact was defended,
22 TAMOSAITIS V. URS, INC.
against the original agency complaint. We conclude that the
administrative exhaustion was sufficient as to URS E&C.
URS Corp., however, was not adequately named in
Tamosaitis’s original administrative complaint. Tamosaitis
did not assert in the complaint that URS Corp. was either his
employer or a subcontractor to Bechtel at the Hanford site,
and in fact it was not. Moreover, URS Corp.’s response to
the original complaint noted as much, and stated that
“references to URS in the remainder of this initial statement
of position are to URS Energy & Construction, and not URS
Corporation.” Thus, URS Corp. affirmatively indicated that
it was participating in the proceedings not as the alleged
wrongdoer, but on behalf of URS E&C. Accordingly, we
affirm the district court’s dismissal of URS Corp. for lack of
administrative exhaustion.
B. Liability of URS E&C
(1) URS E&C assumed, for purposes of its summary
judgment motion, that Tamosaitis engaged in protected
activity and was retaliated against because of that conduct.
The company moved for summary judgment only on the
ground that it was not responsible for the retaliation. The
district court agreed, holding that “Tamosaitis has not
presented evidence raising a genuine issue of material fact
that his employer, URS E&C, ‘took adverse action because of
his conduct,’” and that Bechtel was “solely responsible” for
Tamosaitis’s “removal from the WTP project.” We hold that
Tamosaitis introduced evidence sufficient to create a triable
issue as to whether his whistleblowing activity was a
contributing factor in the adverse employment action URS
E&C took against him. Accordingly, we reverse the grant of
summary judgment to URS E&C.
TAMOSAITIS V. URS, INC. 23
To establish a prima facie case of ERA retaliation, an
employee must show: (1) he “engaged in a protected
activity”; (2) “the respondent knew or suspected . . . that the
employee engaged in the protected activity”; (3) “[t]he
employee suffered an adverse action”; and (4) “[t]he
circumstances were sufficient to raise the inference that the
protected activity was a contributing factor in the adverse
action.” 29 C.F.R. § 24.104(f)(2); cf. Coppinger-Martin v.
Solis, 627 F.3d 745, 750 (9th Cir. 2010) (interpreting the
similarly structured whistleblower protection provision of the
Sarbanes-Oxley Act); Araujo v. N.J. Transit Rail Operations,
Inc., 708 F.3d 152, 157 (3d Cir. 2013) (interpreting the
Federal Railroad Safety Act whistleblower statute). Under
the ERA’s burden-shifting approach to retaliation claims, if
an employee shows that his participation in protected activity
“was a contributing factor in the unfavorable personnel action
alleged,” the burden shifts to the employer. 42 U.S.C.
§ 5851(b)(3)(C); see also Williams v. Admin. Rev. Bd.,
376 F.3d 471, 476 (5th Cir. 2004). The employer may then
rebut the employee’s prima facie case by introducing “clear
and convincing evidence that it would have taken the same
unfavorable personnel action in the absence of [the
employee’s participation in] such behavior.” 42 U.S.C.
§ 5851(b)(3)(D).7
Applying this statutory scheme to this case, we note, first,
that there is plenty of evidence that Bechtel encouraged URS
E&C to remove Tamosaitis from the WTP site because of his
whistleblowing, that URS E&C knew that Tamosaitis’s
7
The 1992 amendments to the ERA added a burden-shifting procedure
distinct from that established in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 800–05 (1973). See Trimmer v. U.S. Dep’t of Labor,
174 F.3d 1098, 1101 (10th Cir. 1999).
24 TAMOSAITIS V. URS, INC.
whistleblowing motivated Bechtel, and that URS E&C
carried out the removal. Frank Russo, the Project Director for
WTP and a Bechtel employee, forwarded URS E&C manager
Gay an email from DOE personnel regarding Tamosaitis’s
email about the M3 closure, which read: “If this shows up in
the press we will be sticking to our previous comment. Walt
[Tamosaitis] does not speak for DOE . . . . Please use this
message as you see fit to accelerate staffing changes . . . .”
Introducing this string of emails, Russo wrote Gay: “Walt is
killing us. Get him in your corporate office today.” Gay
replied: “Dennis [Hayes] has called. He will be gone
tomorrow.” The email is dated July 1, 2010, the day before
Hayes, a URS E&C employee, removed Tamosaitis from the
Hanford site. Another email dated July 1 from Russo,
introducing the same email chain but sent to a DOE official,
said that Russo was “livid about the string of emails Walt has
sent in the last 2 days,” and that “[t]oday I told Gay that Walt
will no longer be paid by WTP.”
The thrust of the email chains are assuredly that Bechtel,
and DOE, were extremely unhappy with Tamosaitis’s
participation in protected activity and wanted him off the
project.8 A reasonable factfinder could infer not only that the
retaliatory motive of URS E&C’s customer, Bechtel, spurred
URS E&C’s actions against Tamosaitis, but also that URS
E&C knowingly acquiesced in or ratified Bechtel’s
retaliation. A reasonable factfinder could also conclude that
8
We decline URS E&C’s invitation to apply judicial estoppel in this
case. For the reasons explained, Tamosaitis’s insistence in state court that
Bechtel “was behind the decision to remove” him from the WTP is not
“clearly inconsistent” with the argument that URS E&C retaliated against
Tamosaitis by carrying out Bechtel’s request. See Baughman v. Walt
Disney World Co., 685 F.3d 1131, 1133 (9th Cir. 2012).
TAMOSAITIS V. URS, INC. 25
there is not clear and convincing evidence that URS E&C
would have taken the same action had Tamosaitis not
engaged in protected activity.
Under the ERA’s whistleblower protection provision,
such showings, if established at trial, are sufficient to make
URS E&C liable for retaliatory discrimination against
Tamosaitis. The ERA forbids an employer from
discriminating against an employee based on the employee’s
whistleblowing activities even if the adverse action is taken
to maintain an advantageous business relationship. Cf.
Gerdom v. Cont’l Airlines, Inc., 692 F.2d 602, 609 (9th Cir.
1982); Fernandez v. Wynn Oil Co., 653 F.2d 1273, 1276–77
(9th Cir. 1981). The purpose of the ERA’s anti-retaliation
provision is to root out retaliation against whistleblowers, for
the benefit of both the public and the employee. “It would be
totally anomolous if we were to allow the preferences . . . of
[a] customer[ ] to determine whether the . . . discrimination
was valid.” Gerdom, 692 F.2d at 609 (quoting Diaz v. Pan
Am. World Airways, Inc., 442 F.2d 385, 389 (5th Cir. 1971)).
We hold that where an employer takes an adverse
employment action to satisfy a customer with a retaliatory
motive of which the employer is aware, retaliation is a
“contributing factor,” 42 U.S.C. § 5851(b)(3)(C), in the
employer’s decision to take that action.
Under this framework, the presence of an employer’s
subjective retaliatory animus is irrelevant. All a plaintiff
must show is that his “protected activity was a contributing
factor in the adverse [employment] action.” 29 C.F.R.
§ 24.104(f)(1). The relevant causal connection is not between
retaliatory animus and personnel action, but rather between
protected activity and personnel action. As a result, there is
no meaningful distinction between an employer who takes
26 TAMOSAITIS V. URS, INC.
action based on its own retaliatory animus and one that acts
to placate the retaliatory animus of a customer. Either way,
the fact that the employee engaged in protected activity is the
cause of the action taken against him.
In the analogous context of Title VII actions, we have
long held that a customer’s discriminatory preference does
not justify an employer’s discriminatory practice unless —
for those protected categories for which the defense is
available under Title VII — the discriminatory requirement
amounts to a bona fide occupational qualification. See
42 U.S.C. § 2000e-2(e); Gerdom, 692 F.2d at 609;
Fernandez, 653 F.2d at 1276–77. Implicit in such holdings
is the commonsense conclusion that when a known or
attributed discriminatory customer preference motivates an
adverse employment action, the discriminatory preference is
a cause of the employment action.
Since Tamosaitis has shown that his protected activity
was a “contributing factor” in the adverse employment action
he suffered, he has met his burden for establishing a prima
facie case of retaliation under the ERA. The ERA contains
no bona fide occupational qualification defense. Instead,
where retaliation is a contributing factor to an employer’s
adverse action, the statute requires that the employer
demonstrate by clear and convincing evidence that it would
have taken the adverse action even if the employee had not
participated in the protected activity. 42 U.S.C.
§ 5851(b)(3)(D).
On the present record, URS E&C has made no such
showing. The only relevant argument URS E&C makes is
that it had no choice under its contract with Bechtel to
continue to employ someone on the Hanford project if
TAMOSAITIS V. URS, INC. 27
Bechtel demanded that that person be removed, regardless of
the reason for the request. But this suggestion is unavailing.
A trier of fact could conclude that URS E&C’s contract
with Bechtel did not require URS E&C to transfer an
employee if requested to do so for a known retaliatory reason.
The contract provides that, “All work under this contract shall
be performed in a skillful and workmanlike manner. The
Contracting Officer may require, in writing, that the
Contractor remove from the work any employee the
Contracting Officer deems incompetent, careless or otherwise
objectionable.” No one contends that Tamosaitis was
“incompetent” or “careless.” Thus the question is whether
the term “otherwise objectionable” is broad enough to
encompass unlawful, retaliatory objections. As “a general
phrase at the end of a list is limited to the same type of things
(the generic category) . . . found in the specific list,” Antonin
Scalia & Bryan A. Garner, Reading Law: The Interpretation
of Legal Texts 203 (2012) (quoting William D. Popkin, A
Dictionary of Statutory Interpretation 74 (2007)), “otherwise
objectionable,” read in light of the preceding criteria, best
refers to concerns regarding an employee’s work quality and
productivity, not to an employee’s protected airing of public
safety concerns. See also Los Angeles News Serv. v. CBS
Broad., Inc., 305 F.3d 924, 933 (9th Cir.) as amended by
313 F.3d 1093 (9th Cir. 2002). For example, if Bechtel
viewed disabled or female employees as undesirable, the
“otherwise objectionable” language would not confer the
right to order such employees discharged without regard to
their productivity, on-the-job honesty, or other criteria related
to their ability to perform their jobs.
Supporting this reading of “otherwise objectionable” as
not reaching retaliation or other proscribed reasons is the
28 TAMOSAITIS V. URS, INC.
consideration that a contract requiring compliance with a
transfer or discharge demand triggered by a known retaliatory
reason could be void or unenforceable as against public
policy. See Restatement (Second) of Contracts § 178 (1981);
W.R. Grace & Co. v. Local Union 759, Int'l Union of United
Rubber, Cork, Linoleum & Plastic Workers of Am., 461 U.S.
757, 766 (1983) (a court may not enforce a discriminatory
contract contrary to public policy). Reading “otherwise
objectionable” as not encompassing impermissible
motivations avoids that possibility. Cf. Restatement (Second)
of Contracts § 207 (1981) (ambiguous contracts are to be read
consistently with the public interest).
Moreover, an employer may be liable for the retaliatory
conduct of another entity “where the employer either ratifies
or acquiesces” in the retaliation “by not taking immediate
and/or corrective actions when it knew or should have known
of the conduct.” Folkerson v. Circus Circus Enters., Inc.,
107 F.3d 754, 756 (9th Cir. 1997). Viewing the record in the
light most favorable to the non-movant, Tamosaitis, as we
must on summary judgment, Nolan v. Heald College,
551 F.3d 1148, 1154 (9th Cir. 2009), it supports the
reasonable inference that URS E&C ratified Bechtel’s
retaliation by transferring Tamosaitis, despite knowledge of
Bechtel’s retaliatory motive. Equally supported is the
reasonable inference that URS E&C could have refused to
carry out Tamosaitis’s removal but failed to do so.
URS E&C supervisor Bill Gay acknowledged that if
Bechtel ordered him to transfer a woman and he knew the
request was motivated by sexual animus, he would not
immediately cede to the request, and would instead take the
issue to his corporate headquarters in protest. A jury could
view this evidence as supporting the reasonable inference that
TAMOSAITIS V. URS, INC. 29
URS E&C retained some control over staffing decisions at
the Hanford site. See 42 U.S.C. § 5851(b)(3)(C) (protected
activity need only be a “contributing factor in unfavorable
personnel action alleged”).
(2) As a separate ground for granting URS E&C
summary judgment on Tamosaitis’s retaliation claim, the
district court held that “[n]othing in the record creates a
genuine issue . . . that URS E&C has discriminated against
[Tamosaitis] with respect to his compensation, terms,
conditions, or privileges of employment in violation of the
ERA.” The district court cited the fact that Tamosaitis
continues to receive bonuses and has had other meaningful
work assignments since the WTP.
“By its terms, section 5851(a) prohibits . . . employers
from discriminating in practically any job-related fashion
against an employee because the employee [engaged in
protected activity].” DeFord, 700 F.2d at 286. Transfer to
“less desirable employment” is job-related discrimination
under the ERA. Mackowiak v. Univ. Nuclear Sys., Inc.,
735 F.2d 1159, 1162 (9th Cir. 1984); see DeFord, 700 F.2d
at 287.
Tamosaitis attests that his “current job duties vary
dramatically” from his previous position at Hanford. At
Hanford he supervised a 500 million dollar program
involving fifteen-to-fifty employees. Now, he does not
supervise any programs, and no employees report to him.
Since January 1, 2012, he has not received an annual bonus
as he did at Hanford, thereby losing $30,000 to $100,000 in
compensation each year. Of the alternative employment
opportunities URS E&C offered Tamosaitis, the primary one
was in another country, a transfer undesirable for him because
30 TAMOSAITIS V. URS, INC.
of his family ties in the United States. The evidence thus
creates a genuine issue of fact as to whether Tamosaitis’s
compensation, terms, conditions, or privileges of employment
were affected by his transfer.
Accordingly, we reverse the grant of summary judgment
to URS E&C for ERA whistleblower retaliation.
III.
Having determined that Tamosaitis’s suit against URS
E&C may proceed to trial, we turn to whether Tamosaitis has
a right to trial by jury. The district court granted URS E&C’s
motion to strike Tamosaitis’s jury demand, ruling that
Tamosaitis had neither a statutory nor a constitutional right to
a jury trial for his claim under the opt-out provision of the
ERA whistleblower protection provision. We hold that
Tamosaitis has a constitutional right to a jury trial for his
claims seeking money damages against URS E&C and so
reverse the district court’s ruling.
A. Statutory Right to Jury Trial
Before reaching a constitutional question, a court must
“first ascertain whether a construction of the statute is fairly
possible by which the [constitutional] question may be
avoided.” City of Monterey v. Del Monte Dunes at Monterey,
Ltd., 526 U.S. 687, 707 (1999) (alteration in original)
(quoting Feltner v. Columbia Pictures Television, Inc.,
523 U.S. 340, 345 (1998)). Accordingly, before proceeding
to hold that there is a constitutional jury trial right in cases
filed under 42 U.S.C. § 1983, Monterey determined that there
was no statutory right to trial by jury under section 1983. Id.
TAMOSAITIS V. URS, INC. 31
The appellees in Monterey maintained that the term,
“action at law,” used in the statute was a “term of art
implying a right to a jury trial.” Id. at 707–08. The Court
disagreed that “this [was] . . . a necessary implication,” and
“decline[d] . . . to find a statutory jury right under § 1983
based solely on the authorization of ‘an action at law.’” Id. at
708 (emphasis added). In doing so, Monterey distinguished
section 1983 from the Age Discrimination in Employment
Act of 1967 (“ADEA”) at issue in Lorillard v. Pons, 434 U.S.
575 (1978), explaining that Lorillard held that there was a
statutory right to a jury trial “in part because [the ADEA]
authorized ‘legal . . . relief,’” and in part because of the
ADEA’s “explicit incorporation of the procedures of the Fair
Labor Standards Act, which had been interpreted to guarantee
trial by jury in private actions.” Id. (first emphasis added)
(citing Lorillard, 434 U.S. at 580).
Like section 1983, the ERA provides for “an action at law
or equity for de novo review,” 42 U.S.C. § 5851(b)(4), and
makes no express reference to a jury trial. Cf. 42 U.S.C.
§ 1981a(c)(1) (“If a complaining party seeks compensatory or
punitive damages under this section . . . any party may
demand a trial by jury”); 46 U.S.C. § 30104 (“A seaman
injured in the course of employment . . . may elect to bring a
civil action at law, with the right of trial by jury.”). Although
the phrase “action at law” is consistent with a statutory right
to jury trial, the phrase standing alone is under Monterey
insufficient to establish a statutory jury trial right for ERA
whistleblower suits. See Monterey, 526 U.S. at 708.
B. Constitutional Right to Jury Trial
“Given this statutory silence, we must answer the
constitutional question presented.” Tull v. United States,
32 TAMOSAITIS V. URS, INC.
481 U.S. 412, 417 n. 3 (1987). The Seventh Amendment
provides that “[i]n Suits at common law, where the value in
controversy shall exceed twenty dollars, the right of trial by
jury shall be preserved . . . .” U.S. Const. amend. VII
(emphasis added). This constitutional guarantee “appl[ies] to
actions enforcing statutory rights, and requires a jury trial
upon demand, if the statute creates legal rights and remedies,
enforceable in an action for damages in the ordinary courts of
law.” Curtis v. Loether, 415 U.S. 189, 194 (1974).
“Consistent with the textual mandate that the jury right be
preserved, . . . interpretation of the Amendment has been
guided by historical analysis.” Monterey, 526 U.S at 708. In
applying that analysis, we “examine both the nature of the
statutory action and the remedy sought,” Feltner, 523 U.S. at
348, to determine whether the claim at issue is a “cause of
action that either was tried at law at the time of the founding
or is . . . analogous to one that was,” Monterey, 526 U.S. at
708 (quoting Markman v. Westview Instruments, Inc.,
517 U.S. 370, 376 (1996)). Consideration of the remedy
sought is the critical factor in this analysis. Granfinanciera,
S.A. v. Nordberg, 492 U.S. 33, 42 (1989); Spinelli v.
Gaughan, 12 F.3d 853, 855–56 (9th Cir. 1993).
Monterey held that a section 1983 suit “seeking legal
relief is an action at law within the meaning of the Seventh
Amendment” even though there was no action equivalent to
section 1983 at the time the Seventh Amendment was
adopted. 526 U.S. at 709. The constitutional right to a jury
trial, Monterey determined, “extends to statutory claims
unknown to the common law, so long as the claims can be
said to ‘soun[d] basically in tort,’ and seek legal relief.” Id.
(quoting Curtis, 415 U.S. at 195) (alteration in original). As
the plaintiff in Monterey sought compensatory damages, and
TAMOSAITIS V. URS, INC. 33
because “compensation is a purpose ‘traditionally associated
with legal relief,’” id. at 710–11 (quoting Feltner, 523 U.S.
at 352), the Court concluded the remedy sought was a legal
one, id. at 710.
Tamosaitis’s whistleblower suit also “sounds in tort” and
seeks compensatory damages. His lawsuit is analogous to a
wrongful discharge claim at common law, “a tort so widely
accepted in American jurisdictions today we are confident
that it has become part of our evolving common law.”
Spinelli, 12 F.3d at 857. “[W]herever the [retaliatory
discharge] tort has been recognized, it has been treated as
legal and not equitable.” Id. Although Tamosaitis is not
alleging complete termination, his claim for wrongful transfer
is for present purposes sufficiently analogous to wrongful
discharge for us to conclude that the nature of the statutory
right is legal. See Monterey, 626 U.S. at 709.9
Most critically, the ERA anti-retaliation provision, section
5851, expressly authorizes award of “compensatory
damages” to a complainant. 42 U.S.C. § 5851(b)(2)(B). As
9
Although some state courts do not recognize adverse employment
claims falling short of actual or constructive discharge, Restatement
(Third) of Employment Law § 5.01 cmt. c. at 188 (Proposed Final Draft
2014), “[t]wo state supreme courts have explicitly sustained ‘wrongful
demotion’ claims and a few intermediate appellate courts have either
sustained claims of this type or indicated their approval of such claims,”
§ 5.01 cmt. c. reporters’ notes at 198 (collecting cases). Those courts that
do allow such claims emphasize that they are analogous to wrongful
discharge claims. See, e.g., Garcia v. Rockwell Int’l Corp., 187 Cal. App.
3d 1556, 1562 (Ct. App. 1986), abrogated on other grounds by Gantt v.
Sentry Ins., 1 Cal. 4th 1083 (1992), overruled on other grounds by Green
v. Ralee Eng’g Co., 19 Cal. 4th 66, 80 n.6 (1998); Brigham v. Dillon Cos.,
262 Kan. 12, 20 (1997); Trosper v. Bag ‘N Save, 273 Neb. 855, 864
(2007).
34 TAMOSAITIS V. URS, INC.
one commentator has noted: “It is established law that
‘compensatory damages’ are available under the ERA
whistleblower provision and other environmental
whistleblower statutes and that ‘compensatory damages’
under these statutes means non-pecuniary damages, which
include recovery for mental anguish, emotional distress, pain
and suffering, humiliation, and loss of professional
reputation.” Jarod S. Gonzalez, Sox, Statutory Interpretation,
and the Seventh Amendment: Sarbanes-Oxley Act
Whistleblower Claims and Jury Trials, 9 U. Pa. J. Lab. &
Emp. L. 25, 45 & n.125 (2006) (collecting cases).
Although he also requests injunctive relief, “back pay . . .
and lost benefits,” Tamosaitis seeks compensatory damages
for “loss of enjoyment of life, pain and suffering, mental
anguish, emotional distress, injury to reputation, and
humiliation.” “And there is overwhelming evidence that the
consistent practice at common law was for juries to award
damages.” Feltner, 523 U.S. at 353. Accordingly, both the
nature of the claim (wrongful transfer) and, more importantly,
the nature of the relief sought (compensatory damages)
support a right to trial by jury.
URS E&C argues that the monetary relief Tamosaitis
seeks is intertwined with and incidental to the injunction
sought, so his overall suit sounds in equity.10 But
10
URS E&C argues that compensatory damages under the ERA are
discretionary, and suggests that their discretionary nature makes them
equitable, rather than legal, relief. Not so. While the statute provides that
upon finding an employer has violated the statute, the adjudicator “may
order . . . compensatory damages,” 42 U.S.C. § 5851(b)(2)(B), this
formulation reflects that an award of compensatory damages depends on
proof of the damages alleged. See Curtis, 415 U.S. at 189–90, 197
(interpreting statute providing that “court . . . may award to the plaintiff
TAMOSAITIS V. URS, INC. 35
Tamosaitis’s prayer for monetary relief extends beyond back
pay, a form of monetary relief that, when restitutionary or
“incidental to . . . injunctive relief,” is fairly characterized as
equitable. Chauffeurs, Teamsters and Helpers, Local No. 391
v. Terry, 494 U.S. 558, 570–71 (1990); see Lutz v. Glendale
Union High Sch., 403 F.3d 1061, 1069 (9th Cir. 2005). He
also requests reputational damages and mental and emotional
damages. Such damages are not merely incidental to the
equitable relief of reinstatement. See Tull, 481 U.S. at 425;
Curtis, 415 U.S. at 196 n.11. And where a statute authorizes
both equitable and legal relief, the plaintiff’s decision to
“join[ ]” a legal claim with an equitable claim does not
“abridge[ ]” “the right to jury trial on the legal claim.”
Curtis, 415 U.S. at 196 n.11. It is irrelevant whether an
action is properly characterized “as one for damages and
injunctive relief, or as one for damages alone, for purposes of
analyzing the jury trial issue.” Id.
In denying Tamosaitis a jury trial, the district court added
a third factor to the constitutional inquiry: Whether the
plaintiff’s suit vindicates a private or public right. The
district court concluded that when “Congress may assign the
adjudication of a statutory cause of action to a non-Article III
tribunal,” as it undisputedly can—and does—with respect to
ERA retaliation claims, “the Seventh Amendment poses no
independent bar to the adjudication of that action by a
nonjury factfinder.” In the district court’s view, because the
whistleblower provision vindicates a “public right” over
which Congress has conferred adjudicatory power to DOL-
OSHA, the Seventh Amendment does not require a jury trial
actual damages” to mean that “if a plaintiff proves unlawful discrimination
and actual damages, he is entitled to judgment for that amount”).
36 TAMOSAITIS V. URS, INC.
when, under the ERA’s opt-out provision, the claim is heard
instead in federal court.
This analysis mistakenly conflates two separate issues —
(1) when Congress may assign claims involving public rights
to non-Article III adjudicatory bodies, and (2) whether, when
such claims are assigned to federal courts for adjudication,
there is a constitutional jury trial right. Granfinanciera
concerned the first issue, holding that Congress can give non-
Article III courts the power to make findings of fact as to
claims involving public rights. 492 U.S. at 51–52.
In so holding, Granfinanciera made its narrow scope
clear: “Congress may devise novel claims of action involving
public rights free from the strictures of the Seventh
Amendment if it assigns their adjudication to tribunals
without statutory authority to employ juries as factfinders.”
Id. at 52 (emphasis added). “Congress is not required by the
Seventh Amendment to choke the already crowded federal
courts with new types of litigation or prevented from
committing some new types of litigation to administrative
species with special competence in the relevant field,” and
“[t]his is the case even if the Seventh Amendment would have
required a jury where the adjudication of those rights is
assigned to a federal court of law instead of an administrative
agency.” Id. at 51 n.9 (emphasis added) (quoting Atlas
Roofing Co. v. Occupational Safety and Health Review
Comm’n, 430 U.S. 442, 455 (1977)).
Thus, the right to a jury trial “turn[s] to a considerable
degree on the nature of the forum in which a litigant [finds]
himself.” Atlas Roofing, 430 U.S. at 458. Consistent with
this framework, Congress may confer adjudicatory authority
of a new statutory right to an administrative process “with
TAMOSAITIS V. URS, INC. 37
which [a] jury would be incompatible.” Id. at 450. But
where Congress provides for federal district court authority
over a public statutory right — here, after a non-Article III
tribunal had an opportunity to rule on the case and failed to
do so — the considerations that permit agency determination
of such rights without triggering Seventh Amendment
concern disappear.
In the ERA’s opt-out provision, “Congress . . . chose an
aggressive timetable for resolving whistleblower claims and
. . . created a cause of action in an alternative forum should
the DOL fail to comply with such schedule.” Stone, 591 F.3d
at 248 (4th Cir. 2009) (construing the Sarbanes-Oxley Act).
Congress thereby gave an administrative agency a “first
crack” at resolving the dispute; after one year, jurisdiction is
available in federal courts, at which point any findings made
by the agency have no preclusive effect. See id. at 247. In
sum, absent a final decision from the agency within the
specified period, “the employee may . . . file a federal civil
cause of action,” Day v. Staples, Inc., 555 F.3d 42, 53 (1st
Cir. 2009), and the “proceedings begin anew in district
court,” Stone, 591 F.3d at 248.
Assuming, as we do for present purposes, that the agency
is properly vested with the ability to hear and make findings
as to such a dispute without a jury, the fact that Congress has
given adjudicatory power to DOL-OSHA in the first instance
does not cut away the constitutional right to a jury when the
suit moves to federal court. Put differently, once the
retaliation claim is in the district court — a forum which
traditionally employs juries and is constitutionally obliged to
do so for claims meeting certain criteria — a cause of action
meeting those criteria is not shorn of a jury trial right because
38 TAMOSAITIS V. URS, INC.
it could have been decided by an administrative agency
without a jury.
For these reasons, we conclude that Tamosaitis has a right
to a jury trial in the district court for his claims seeking
money damages under section 5851(b)(4), and we reverse.
We note that this holding extends to plaintiffs and defendants
alike: An employer hailed into federal court to defend against
a whistleblower retaliation suit for money damages may
demand the constitutional protection of a trial by jury.
IV.
For the reasons explained, we affirm the dismissal of
DOE from this suit, and also affirm the grant of summary
judgment in URS Corp.’s favor. We reverse the grant of
summary judgment for URS E&C and remand to the district
court for further proceedings consistent with this opinion.11
AFFIRMED IN PART, REVERSED IN PART AND
REMANDED.
11
Tamosaitis asks that we remand to a different judge. We deny the
request. We “remand to a different district judge if a party can show
personal biases or unusual circumstances, based on an assessment of three
factors: (1) whether on remand the district judge can be expected to follow
this court’s dictates; (2) whether reassignment is advisable to maintain the
appearance of justice; and (3) whether reassignment risks undue waste and
duplication.” United States v. Lyons, 472 F.3d 1055, 1071 (9th Cir. 2006)
as amended on reh’g in part (Jan. 11, 2007) (citing United States v.
Peyton, 353 F.3d 1080, 1091 (9th Cir. 2003), overruled on other grounds
by United States v. Contreras, 593 F.3d 1135, 1136 (9th Cir. 2010) (en
banc)). Here, there is no indication of personal bias or other unusual
circumstances. The district court judge erred in some respects but not
others, and we have absolutely no reason to believe he will not follow our
rulings on remand. Nor do the other two factors apply.