Ninth Circuit Affirms that ERA Protected Activity Must Have Sufficient Tie to Nuclear Safety and Highlights Importance of Proper Corrective Action Documentation and Implementation

On February 12, 2016, a divided panel of the U.S. Court of Appeals for the Ninth Circuit rejected a plaintiff’s whistleblower claim, ruling that he did not engage in protected activity under the Energy Reorganization Act (“ERA”) because his alleged protected conduct “lack[ed] a sufficient nexus to a concrete, ongoing safety concern.” Sanders v. Energy Northwest, 812 F.3d 1193 (Feb. 12, 2016), slip op. at p. 12 (en banc review denied, Mar. 25, 2016). The Sanders decision is important because it adds to other Federal Circuit Court precedent holding that not just any conduct can be protected activity under the ERA. For example, the Sanders decision cited precedent from the Sixth Circuit in American Nuclear Resources Inc. v. U.S. Dept. of Labor, 134 F.3d 1296 (6th Cir. 1998), which among other things holds that, to be protected, conduct “must implicate safety definitively and specifically.” The Sanders decision will raise the bar whistleblower plaintiffs will have to meet in order to prove a claim of retaliation. In addition, this decision also demonstrates the importance of properly documenting issues in your corrective action system and ensuring that they are promptly addressed. As demonstrated in this case, when an issue is properly documented in a corrective action program and is being addressed by management, a reviewing court will be less likely to find protected activity where the individual merely disagreed with the level of emphasis management placed on addressing the issue at hand.