Nelson v. U.S. Department of Labor

Ninth Circuit

Nelson v. U.S. Department of Labor

706 F. App'x 343

CourtCourt of Appeals for the Ninth Circuit

DecidedDecember 12, 2017

Docket15-73548

StatusUnpublished

This text of 706 F. App'x 343 (Nelson v. U.S. Department of Labor) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Nelson v. U.S. Department of Labor, 706 F. App'x 343 (9th Cir. 2017).

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Opinion

MEMORANDUM ***

1. The Administrative Review Board (ARB) properly affirmed the Administrative Law Judge’s (ALJ) dismissal of Richard Nelson’s claim under the Energy Reorganization Act, 42 U.S.C. § 5851. Section 5851 “protects energy workers who report or otherwise act upon safety concerns.” Sanders v. Energy Northwest, 812 F.3d 1193, 1196 (9th Cir. 2016). Nelson’s retaliation claim rests on a catch-all provision, which protects employees who participate “in any other action to carry out the purposes of’ the Act. 42 U.S.C. § 5851(a)(1)(F).

To establish a prima facie case of retaliation, Nelson must show that: (1) he engaged in a protected activity; (2) Energy Northwest knew or suspected that he engaged in the protected activity; (3) he suffered an adverse action; and (4) the circumstances were sufficient to raise the inference that the protected activity was a contributing factor in the adverse action. Sanders, 812 F.3d at 1197. Nelson argues that his participation in a “security investigation,” in which he refused to confirm Energy Northwest’s accusations of wrongdoing, constitutes protected activity under the Act. We find that argument unpersuasive.

Conduct within the scope of the Act’s protection must have “a sufficient nexus to a concrete, ongoing safety concern.” Id. at 1198. Here, Energy Northwest’s investigation was primarily concerned with internal reports of improper per diem practices and unauthorized travel expenses, not safety or security issues. Substantial evidence supports the ALJ’s conclusion, as affirmed by the ARB, that Nelson never raised a safety or security issue during the investigation. Nelson’s conduct was therefore not protected activity under the Act.

Because Nelson did not engage in protected activity, we need not address the other elements of his retaliation claim. The ARB properly affirmed the ALJ’s dismissal of his claim.

PETITION FOR REVIEW DENIED.

***

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

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MEMORANDUM ***

1. The Administrative Review Board (ARB) properly affirmed the Administrative Law Judge’s (ALJ) dismissal of Richard Nelson’s claim under the Energy Reorganization Act, 42 U.S.C. § 5851. Section 5851 “protects energy workers who report or otherwise act upon safety concerns.” Sanders v. Energy Northwest, 812 F.3d 1193, 1196 (9th Cir. 2016). Nelson’s retaliation claim rests on a catch-all provision, which protects employees who participate “in any other action to carry out the purposes of’ the Act. 42 U.S.C. § 5851(a)(1)(F).

To establish a prima facie case of retaliation, Nelson must show that: (1) he engaged in a protected activity; (2) Energy Northwest knew or suspected that he engaged in the protected activity; (3) he suffered an adverse action; and (4) the circumstances were sufficient to raise the inference that the protected activity was a contributing factor in the adverse action. Sanders, 812 F.3d at 1197. Nelson argues that his participation in a “security investigation,” in which he refused to confirm Energy Northwest’s accusations of wrongdoing, constitutes protected activity under the Act. We find that argument unpersuasive.

Conduct within the scope of the Act’s protection must have “a sufficient nexus to a concrete, ongoing safety concern.” Id. at 1198. Here, Energy Northwest’s investigation was primarily concerned with internal reports of improper per diem practices and unauthorized travel expenses, not safety or security issues. Substantial evidence supports the ALJ’s conclusion, as affirmed by the ARB, that Nelson never raised a safety or security issue during the investigation. Nelson’s conduct was therefore not protected activity under the Act.

Because Nelson did not engage in protected activity, we need not address the other elements of his retaliation claim. The ARB properly affirmed the ALJ’s dismissal of his claim.

PETITION FOR REVIEW DENIED.

***

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

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706 F. App'x 343, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nelson-v-us-department-of-labor-ca9-2017.

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