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Sanders v. Energy Northwest

United States District Court, E.D. Washington

April 4, 2014

DAVID W. SANDERS, Plaintiff,
ENERGY NORTHWEST, a Washington municipal corporation, Defendant.


THOMAS O. RICE, District Judge.

BEFORE THE COURT is Defendant's Motion for Summary Judgment (ECF No. 47). This matter was heard with oral argument on February 20, 2014. John P. Sheridan appeared on behalf of the Plaintiff. William G. Miossi and Angel Rains appeared on behalf of the Defendant. The Court has reviewed the completed briefing and the record and files herein, and is fully informed.


This case concerns Plaintiff's discharge from his position with Defendant, which Plaintiff claims is a violation of the whistleblower retaliation provisions of 42 U.S.C. § 5851 of the Energy Reorganization Act ("ERA"). For the reasons discussed below, the Court finds that Plaintiff's termination did not violate the ERA.


Defendant Energy Northwest ("EN") is a Washington municipal corporation that owns and operates the Columbia Generating Station ("CGS"), a nuclear power plant in Richland, Washington. ECF No. 56 at 24. EN terminated its at-will employee Plaintiff David Sanders ("Sanders") from his position as a maintenance supervisor on April 20, 2011, after nineteen years of employment. Id. at 2. Sanders oversaw contractors and administered work for EN's contracts with companies that provided it with temporary staffing needs. Id.

Sanders claims he was terminated for two activities-opposing a condition report designation and advocating a change in badging procedure-which are protected under whistleblower retaliation protections in 42 U.S.C. § 5851 of the Energy Reorganization Act ("ERA"). ECF No. 56 at 25. Defendant characterizes these as four instances of allegedly protected activity: Plaintiffs' dispute over a 30-day access policy, ownership of a condition report, a condition report designation, and a change in badging procedure. ECF No. 47 at 2-4. The parties also cite another incident involving employee Ricky Hayes, which EN claims prompted Plaintiff's termination.

1. Condition Reports

Two allegedly protected activities concerned ownership and designation of Condition Reports ("CRs"). CRs are internal reports generated by EN employees when, inter alia, EN procedures may have been violated. CRs are designated in decreasing order of severity as "Alpha, " "Bravo, " "Charlie, " or "Delta." ECF No. 47 at 3.

Sanders and EN's then-Security Compliance Supervisor, Bruce Pease ("Pease"), disagreed over a CR concerning maintenance contractors who violated the 30-day access rule. ECF No. 56 at 25, 27. The 30-day access policy governs procedures by which an individual can maintain Unescorted Access Authorization ("UAA"). UAA is a security clearance status required for personnel working at nuclear power plants in the United States to gain access to certain areas of a plant without an escort, which is addressed by Nuclear Regulatory Commission regulations at 10 C.F.R. Parts 26 and 73. Id. at 25. The disagreement between Sanders and Pease began when one CR was designated "Bravo" for an instance when a company employee left employment without terminating his UAA badge within three days, as was required by company policy. Id. at 27. Sanders and Pease argued over who should "own" the CR because both wanted to control how to fix it.[1] After a CR review meeting and management advising Sanders and Pease to discuss their differences outside the meeting, Sanders' department ultimately took responsibility for remedying the Bravo designated CR. Id. at 27, 28.

Approximately two weeks later, a second CR was issued for Pease's security department and designated "Charlie" for an alleged incident where an employee's UAA badge was not terminated in accordance with certain EN procedures. Id. at 28. Sanders disputed the Charlie designation with Pease and management in a CR review meeting because the incident was similar to the CR Bravo designation his department was remedying. Id. at 29, 30. Again, Sanders and Pease were advised to discuss the issue outside the meeting and told to resolve it. At the CR review meeting the next morning, Sanders stated he would no longer dispute the designation and would "let it go as a Charlie." Id. at 29; ECF No. 48-2 Sanders' Depo. at 26.

2. Badging Procedure

Two more allegedly protected activities concerned badging procedures. The first concerned Plaintiff's dispute with Pease regarding the 30-day access policy where an individual who has been granted UAA can maintain his or her clearance. ECF No. 56 at 25. This policy is a security clearance status required by nuclear power plant personnel to gain unescorted access to certain areas of the plant, and it is covered by Nuclear Regulatory Commission ("NRC") regulations. Id. Individuals with UAA status must "badge in" at an access point once every 30 days and be observed by a member of EN management in order to maintain their clearance. Id. at 25-26. After an employee violated the 30-day badge-in procedure due to an injury, Sanders suggested moving the badge-in point. ECF No. 48-2, Sanders' Depo. at 13. Sanders explained that the change would be "less burdensome for everybody on-site from an administrative standpoint, " and that it would be "more accommodating and just as effective." Id. at 18-19. Sanders testified that "[t]he NRC information did not require you to come through the turnstile." Id. at 15.

Then, in February or March 2011, Sanders suggested changing EN's UAA processing procedure for temporary workers scheduled to perform maintenance work at CGS. ECF No. 56 at 30. The existing procedure provided that if a contract worker was on EN's site for more than five days, the security department must start the badging process for them, including a background check and other functions to determine if the employee or contractor meets NRC criteria for obtaining UAA clearance. Id. Plaintiff proposed allowing contractors to come to the site for training without having to begin the process because it would "save money." ECF No. 56 at 11; ECF No. 48-2, Sanders' Depo. at 29 ("I said we need something so we can do this without costing the company money.").

3. The Hayes Incident

On January 28, 2011, Dale Atkinson, a vice president of EN, began investigating per diem payments made to contract worker, Ricky Hayes ("Hayes") in 2009. ECF No. 48 at 13; ECF No. 56 at 10-11.

In 2009, Hayes was hired by one of the contract companies EN worked with, Nelson Nuclear, Inc. ("NNC"), which provided personnel to commercial nuclear facilities and DOE sites. ECF No. 56 at 3. NNC is owned and operated by Richard Nelson ("Nelson"), a friend and former colleague of Sanders. Id. at 2. Nelson received Hayes' name from Sanders after EN was short a contract worker for the semi-annual maintenance process. Id. at 3, 35 (Sanders testified he advised Nelson to hire Hayes). At the time of his hire, Hayes had been living with Sanders' daughter in the Tri-Cities area for eight months and working at Target in Kennewick, Washington. Id. at 34-35.[2] On the application Hayes completed for NNC, he listed South Carolina as his permanent address because, even though he had been working at Target for several months, he had not decided whether he would remain in Washington. Id. at 4. Additionally, at the time of his hiring, Hayes was registered to vote in South Carolina, had a South Carolina driver's license, and indicated in his paperwork that taxes should be taken out for South Carolina. Id. As the technical representative on the NNC contract, Sanders approved the paperwork that enabled Hayes to receive per diem because Hayes was working away from his permanent residence. Id. During the five week contract work Hayes did for EN, Hayes completed a Personal History Questionnaire ("PHQ") which is required by the NRC to collect data to determine whether an individual is trustworthy, reliable, and fit for duty prior to granting and while maintaining an UAA. Id. at 5. In the PHQ, Hayes listed South Carolina as his permanent address. After the form was completed, an outside vendor, Pinnacle, did a background check, and the security department, either Pease or a designee, reviewed the information both independently and with Hayes, and also verified Hayes' employment at Target. Id. at 6. In August 2009, after Hayes made the decision to move his residence to Washington, Hayes was temporarily hired by EN and completed another PHQ, this time listing Washington as his permanent address. Id. at 7. EN hired Hayes permanently in February of 2010, had Hayes fill out another PHQ, and again Hayes listed Washington as his permanent residence. Id. at 8.

In an email dated January 28, 2011 between Atkinson and Pam Bradley ("Bradley"), EN's acting general counsel, Atkinson asked Bradley to investigate a 2009 per diem issue pertaining to Hayes raised by Bill Penwell ("Penwell"). Id. at 10-11. In 2009 or 2010[3], Penwell, then an EN manager, notified Atkinson that his wife "mentioned that this gentleman that was working for [Sanders] that actually lived in the Tri-Cities[4] area and had actually lived there for a couple of years and was getting per diem." Id. at 7-8. After EN began its investigation of Hayes' per diem payments in January 2011, it learned ...

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