F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

W A L T E R L

. T A M O S A I T I S , P H .D., an individual, Plaintiff-Appellant

,

v

.

URS I N C ., a Delaware corporation; URS E N E R

G Y A N D C O N S T R

U C T I O N I N C ., an Ohio corporation; U.S. D E P A R T M E N T O F E N E R

G Y ; URS C O R P O R A T I O N , Defendants-Appellees

. N o. 12-35924

D.C. No. 2:11-cv-05157- L RS

OPI NI ON

A ppeal from the United States District Court for the Eastern District of W a shing ton L onny R. Suko, District J udg e, Presiding

Arg ued and Submitted November 7, 2013—Seattle, W ashing ton

F iled November 7, 2014

B efore: Alex Koz inski, Chief J udg e, and Richard A. Paez and Marsha S. B erz on, Circuit J udg es.

Opinion by J udg e B e rz onT A M O S A I T I S V

. URS, I N C

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SUMMARY *

Whistleblow e r / Energy Reorganization Act

The pan el affirmed the district c o urt’s dismissal of the U.S. Department of Energ y from the suit, affirmed the g rant of summary judg ment in URS Corp.’s f avor, and reversed the
g rant o f summary judg ment f or URS Energ y & Construction, I nc. in an action b roug ht b y a URS Energ y employ ee alleg ing violations of the Energ y Reorg aniz ati o n Act whistleblower protection provision, concerning cleanup efforts of nuclear waste at the Hanford Nuclear Site in W ashing ton state.

The “ opt-out” provision of the Ene r g y R e o r g aniz a tion A ct (“ERA”), 42 U.S.C. § 5 851(b)(4), empowers whistleblowing employ e es at nuclear energ y sites to bring anti-retalia t i on claims to f

ederal court after o ne y ear of ag ency inaction. The Department of Energ y (“DOE”) led the effort to clean up the pollution at Hanf

o r d

, which included construction a nd
manag ement of a W aste Trea t ment Plant. The Department contracted w ith B echtel National, I nc., w h i c h subcontracted with URS Energy & Construction, I nc. (“URS Energ y ”) for

w ork on the project. URS E nerg y is a wholly -own e d subsidiary

of URS Corporation.

Ad d r e ssing the issue of administrative ex haustion, the panel held that before an employ ee may opt out of the ag ency proc e s s a nd b ring a retaliation suit ag ainst a respondent in federal c ourt, the respondent must have had notice of, and an opportunity to participa t e in, the ag e ncy action for one y ear.

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.T A M O S A I T I S V

. URS, I N C

. 3

The panel affirmed the d ismissal o f DOE because there was

no administr a tive complaint p ending ag ainst DOE for o ne y e ar before the employ ee filed suit ag ainst DOE in fede ra l court, and § 5851(b)(4)’s admini strative e x haustion requirement was not satisfied as ag ainst DOE. T he p a n el held that administrative ex h austion was sufficient as to U RS E n e rg y where the employ ee g ave a dequate notice to U R S Energ y that it was the name d r espondent to his complaint. F i nally

, the panel affirmed the district court’s dismissal o f URS Corp. for lack of administrative ex haustion where U RS Corp. was not adequately named i n t he employ ee’s orig inal administrative complaint.

The panel he ld that the employ ee introduced sufficient evidence to create a triable issue as to w hether his whistleblowing activity was a c o n tributing factor in the adverse employ

ment action URS Ene r gy took a g ainst him. T h e p anel also held that there was a g enuine issue of fact as to whether the employe e’s compensation, terms, conditions,

or privileg es of employ

ment were affected by his transfer to another position. A ccording ly

, the panel reversed the g rant of summary judg ment to URS E nerg y for ERA whistleblower retaliation.

The p anel h eld that the employ ee did not have a statutory jury trial rig ht for h i s ERA whistleblower suit. The panel held that the employ ee d id have a c onstitutional rig ht to a jury
tr i al for his claims seeking money damag es under § 5851(b)(4)

, and reversed. The panel remanded for f urther proceeding s.T A M O S A I T I S V

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COUNSEL

J ohn Sheridan (arg

u ed )

, Sheridan L aw F irm, Seattle, W a shing ton; and J oseph R. Shaeffer, MacDonald Hoag ue & B ay less, Seattle, W ashing ton, for Plaintiff-Appellant.

Katherine B ushman Smith (arg ued), G eorg etown University L aw Cent er , Appellate L itig ation Prog ram, Washing ton, D.C.; and Rolf Harry Tang vald, A s sistant United States Attorney
, O f

f i c e of the United States Attorney
, Spokane, W a shing ton, f

or Defendant-Appellee Department of Energ y

.

Matthew W illiam Daley (arg ued), Timothy Michael L awlor, and Matth e w A

. Mensik, Witherspoon K elley

, Spokane, W a shing ton, for De fe ndants-Appellees URS Corporation, URS I n c., and URS Energ y and Construction, I nc.

OP INION

B ERZ ON, Circuit J udg e :

The Energ y Reorg aniz ation Act (“ERA”), 4 2 U .S.C. § 585 1 ( b)(4), includes an “opt-out” p rovision empowering whistleblowing employ ees working at nuclear energ y sites to bring anti-retaliation claims to federal court a fter one y ear o f
ag ency inaction. Our case concerns th e interpretation a nd application of that provision. I n addition, w e consider

w h e t h er a whistleblower who sues an employ er in a feder al anti-retaliation lawsuit under the ERA opt-out provision has a constitutional rig ht to a jury trial.T A M O S A I T I S V

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I.

A. Background

The H anford N u c l e ar Site is a f ormer nuclear weapons production facility in W ashing ton state. 1 Hanford’s reactors produced plutonium for the national d efense for ove r f o rty
y ears. T he Hanford site abuts a river and stores fifty -three million g allons of h a zardous

, h i g h-level nuclear waste in underg round t anks. There are e stimates that one million
g allons o f nuclear waste have leaked from the storag e tanks into the g r ound and that the g roundwater beneath e ig hty -five square miles of the site is polluted.

The D epartment of Energ y (“DOE”) leads the effort to clean up the pollution at H anford. The clean-up plan includes construction and manag ement of a W aste Treatment Plant (“W TP”) responsible fo r “separating and vitrify ing (immobiliz ing in g lass)

. . . nuclear tank waste.” V itrification involves mix ing nuclear waste with g la s s

- forming materials
at ex tremely hig h temperatures, then pouring the mix ture into stainless steel containers to cool and so l i dify it. Once imm o b i liz ed in g lass, the nuclear waste g enerally is considered stable and safe for storag e. Ov er hundreds o f
y ears, the waste will lose its radioactivity

.

The building of the W TP is in p rocess. W hen completed, th e W T P will be the larg est such facility in the world. The

1 T h is ap p eal req u ires u s t o co n sid er th e d istrict co u rt’ s ru lin g s at b o th th e m o tio n t o d ism i ss an d su m m ary j u dg m en t stag e. W e rely o n th e alleg atio n s in th e f

irst am en d ed co m

plain t f o r o u r acco u n t o f th is ap p eal’ s b ack g ro u n d b u t tu rn to th e ev id en tiary reco rd w h en an aly zin g t h e

su m m ary j u d g m en t ru l in g s.T A M O S A I T I S V

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W T P is to h ave a “desig n life of fort y y ears,” meaning that

some of its parts are to operate without maintenance for four decades. The so u n d desig n of the W TP is important to p r otect a g a inst occurrence of a “criticality accident”

— a nuclear chain reaction inside plutonium o r enriched uranium. S u ch r e actions release radiation, which, particularly in combination with hy drog en g as, could be catastrophic.

To assist in its clean-up effort at Hanford, DOE contracts with B echtel National, I nc. (“B echtel”). B echtel subcontracts with URS E nerg y & Construction, I n c

. , ( “U RS E& C”) for work on the W TP.

I n the wa k e of a report detailing problems with the Hanford clean-up, a ppellant Dr. W alter Tamosaitis, an employ e e of URS E& C, was appointed to lead a s t udy reviewing technical challeng es within the W TP project. The study identified twenty -eig ht technical issues, twen t y -seven of which were “closed,” meaning resolve d

, b y the planned date of October 2009. The remaining issue, termed the “M3 mix ing issue,” required solving a desig n problem concerning the mi x i n g of nuclear waste in certain of the W TP pretreatment tanks.

T he M3 mix ing issue proved to be a ling e r i n g a n d complex chal l e ng e. Tamosaitis wanted to ex tend the deadline for solving the issue to September 2010, while B e c h t el wanted it resol v e d b y J une 2010. F ailure to resolve the M3 mix ing issue by

J une would have jeopardiz ed B echtel’s six

million-dollar fee.

B e chtel rejected Tamosaitis’s ad v i c e a nd announced closure of the M3 mix ing issue by J une. T amosaitis objected: He broug ht a fifty -point list of environmental and safetyT A M O S A I T I S V

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concerns to a meeting hosted by B echtel; forwarded the same list to B ill Gay
, a URS employ ee and W TP Assistant Project Manag er; a

nd reached out to several W TP con s u l t a n ts b y email, hoping that they would oppose closure and publi ciz e his concerns.

T w o day s later, Tamosaitis was fired from the W T P project. URS Operations Manag er Dennis Hay e s personally terminated Ta m o s a itis. Hay es directed Tamosaitis to return his badg e, cell phone, and B l a c k b er ry , and leave the site immediately

. Tam o saitis was reassig ned, in a nonsupervisory role, to a b asement office in a URS facility off the Hanford site. He was later o ffered other positions with URS, but they

required relocation.

B. The ERA Anti-Retaliation P rovision

The a nti-retaliation — or “ whistleblower ” p r otection — provision of the ERA provides that:

No employ er may discharg e any employ e e or otherwise d iscrimin a te ag ainst any employ ee with re s p ect to his compensation, terms, conditions, or privileg es of employ ment because the employ ee

. . . n o t i fied his employ er of an alleg ed v iolation of this chapter [ Development of Energ y Sources] o r the Atomic Energ y

Act of 1954.

42 U.S.C. § 5851(a)(1)(A). This statute “protect[ s] workers from retaliation b ased on their concerns f or sa f ety a nd quality ,” Mackowiak v. Univ. Nuclear Sys., Inc.
, 735 F .2d 1159, 1163 (9th Cir. 1984), and ensures that the g overnment ag encies charg ed with mo n i t o r i ng nuclear safety do n ot seeT A M O S A I T I S V

. URS, I N C

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their “channels of i n f

o r m a t ion

. . . d

ried up by employ er i n timidation,” DeFord v. Sec’y of Labor

, 700 F .2d 281, 2 8 6 (6th Cir. 1983) (quoti n g NLRB v. Scrivener
, 405 U.S. 117, 122 (1972)).

The Department o f L abor, Occupational Safety a nd Hea l t h Administration (“DOL -OSHA”) implements this antiretaliation provision. S

ee 29 C.F .R. §§ 24.100–24.105. An employ e e seeking redress under section 5851 mus t f ile a complaint with DOL -OSHA a nd follow the statutorily desig nated administrative scheme, whereby :

Any e mploy ee who believes that he has been discharg ed or otherwise discriminated ag ainst by any person in v iolation of subsection (a) o f this section may , within 180 d a y s after such violation occurs, file (or have a n y person file

on his b ehalf) a complaint with the Secretary of L abor (in this secti on referred to as the “Secretary

”) alleg ing such discharg e o r discrimination. Upon receipt of s u c h a complaint, the Secretary shall notify t he
person named in the c omplaint of the filing o f the c omplaint, the C o m mission, a nd the Department of Energ

y

. 42 U.S.C. § 5851(b)(1).

I n 2005, Cong ress bolstered this w histleblower protection by amending section 5851 to a llow employ ees to ta k e t h eir retal iation cases to federal district court if, a fter one y ear, DOL -OSHA has not adjudicated their claim. Energ y Policy Act o f 2005, Pub. L

. No. 1 0 9

- 5 8
, § 629, 119 Stat 594 (Aug

.T A M O S A I T I S V

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8, 2005). The amendment adds the “opt-out” c lause at issue here, which provides:

I f the Secretary has not issued a final decision

w i t h in 1 y ear after the f

iling of a compla i n t

. . . a nd there is no showing that such delay is due to the bad f

aith of the person seeking relief under this p arag r aph, such p e r son may bring an action a t l a w o r equity for de novo review in the a p p r opriate d istrict court of the United States, which shall h ave jurisdiction

over such a

n a ction w ithout reg ard to the amount in controversy

.

42 U.S.C. § 5851(b)(4)

. C o n g ress added the opt-out provision to the statutory scheme to address “ex tensive delay s that

. . . frustrated the purpose o f [ the] whistleblower statutes.” H.R. Rep. No. 108-65, at 160 (2003).

C. P r ocedural Background

On J uly 30, 2010, Tamosaitis filed a discrimination action wit h DOL -OSHA. He named “his employ er, URS, I nc., a contractor at the Hanford Nuclear Site,” as respondent, a nd asserted workplace discrimination o n account o f activities protected under the E R

A

. D OL -OSHA acknowledg ed r eceipt of the complaint on Aug ust 13, 2010, and said i t was “providing the named party with a copy of [ the] c o mplaint and information concerning OSHA’s responsibilities under the law.”

URS Corporation ( “ U RS Corp.”) responded to Tamosaitis’s OSHA complaint by filing a position statement with D OL

- OSHA. O n the second pag e of the document,T A M O S A I T I S V

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URS Corp. stated that “Mr. Ta m osaitis’ employ er is U RS Energ y & Construction

, I n c., a wholly -owned subsidiary o f URS Corporation.

. . . As URS Energ y & Construction, I nc. employ s Mr. Tamosaitis and i s t h e party to the Subcontract, references to URS in the r emainder of this initial statement o f position a r e t o URS Energ y & Construction, and not U RS Corporation.” The eig hteen-pag e position statement went on to defend ag ainst Tamosaitis’s claims on the merits.

Tamosaitis amended the O SHA complaint twice : On December 15, 2010, he a d d ed DOE and B echtel a s defendants, and on S ep t e mber 7, 2011, he deleted B echtel because h e was pursuing B echtel in state court, and chang ed the employ er d e f

e n d ant from URS, I nc. to URS Corp. a nd URS E& C. That same da y , T a m osaitis g ave notice that he in t e n d e d to bring an action in federal court pursuant to the ERA’s opt-out provision. I n response to Tamosaitis’s notice of intent, DOL -OSHA dismissed the ag ency complaint.

Ta m o s aitis filed his complaint in federal c ourt on November 9
, 2011, and his first a m e n d ed complaint on December 20, 2011. The suit names URS Corp., URS E& C, and D OE a s defendants, and alleg es v iolations of th e ERA whistleblower protection provision, 42 U.S.C. § 5851. Tamosaitis also requested a jury trial.

The district court g rante d D OE ’s motion to dismiss,

ru l i n g that Tamosaitis did not wait a full y ear after naming DOE in his a g ency complaint a n d so did not ex h aust his administrative remedies ag ainst D OE. 2 As to URS Corp. a nd

2 A s a l t e r n ativ e g ro u

n d s f o r d ism issin g DOE f

ro m th e su it, th e d istrict

co u rt f o u n d t h at: (1 ) DOE d i d n o t q u alif y as an em p lo y er u n d er th e ERA ’ s

w h istleb lo w er pro tectio n p ro v isio n ; an d (2 ) th e c o m p lain t f ailed to stateT A M O S A I T I S V

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URS E& C, the district court g r anted summary judg ment, also for lac k o f administrative ex haustion, reasoning that Tamosaitis was required to wait one y ear after chang ing the named defend a n t from U RS I nc. to URS Corp. and U RS E& C before filing suit in federal court. I n addition, summary judg ment was g ranted to URS Corp. on the alternative g r ound tha t T amosaitis offered no evidence tending to show that URS Corp. was any

thing b ut a parent c orporation o f Tamosaitis’s empl oy er, URS E& C, and that this parentsubsidiary relationship was insufficient to est a b l i sh liability under the ERA. I n a separate order, the district court g ranted the URS defendants’ motion to strike Tamosaitis’s ju ry d e mand, ruling that Tamosaitis had no statutory o r constitutional rig ht to a trial by jury

.

F inally

, with reg ard to URS E& C, the district court held, alternatively

, that there was no g enuine issue of material fact

as to whether URS E& C “took a dverse action b e c a u s e o f [ Tamosaitis’s] conduct.” All the evidence, the district court ruled, showed that B ec h t e l

, not URS E& C, “was solely responsible for [ Tamosaitis’s] removal from the W T P project and is the entity which ‘took adverse action’ ag ainst h im.” I n addition, the c ourt concluded t h at, althoug h Tamosaitis was taken off the W TP project at Hanford, he was not fired from URS E & C, and “[ n ] othing in the record create [ d ] a g enuine issue o f ma t e r i a l fact that URS E& C has discriminated [ ag ainst him] with respect to his compensation, t er m s , conditions, or p r i v i l eg es of employ ment in violation o f the ERA.”

a claim ag ain st DOE f

o r w h ich relief co u ld be g ran ted

, b ecau se th e co u rt lack ed th e p o w er to o rd er DOE to pro v id e th e eq u itab le relief T am o saitis
req u ested

.T A M O S A I T I S V

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Tamosaitis timely appealed the partial dismissal, t he denial of jury

trial, and the g rant of summary judg ment.

II.

A. Adm inistrative Exhaustion

(1) The district cour t r u l e d that the ERA opt-out provision requires employ ees to wait one full y ear a fter naming a p articular respondent in a DO L

- O SHA complaint before bring ing a federal suit ag ainst 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 U R S C o r

p

. and URS E& C, he did not ex haust his administrative remedies ag ainst these d e f e n d a n t s before filing suit and may

not proceed in federal court. 3

W e ag ree that, as a g eneral rule, adding a new respondent
to an a dmin i s trative complaint restarts the o n e-y e ar

ex h austion clock as to that person. As we later ex plain, that conclusion leads us to a ffirm the district court’s dismissal o f
two of the appellees in this case, DOE a n d URS Corp., but not the third, URS E& C.

F irst, the struct u re of section 5851 indicates that the administrative ex haustion period i s linked to a particular respond e n t , n ot to the substance of the claim a lone: Section 5851 provides t h a t the Secretary of L a bor is to “notify the
person named in the complaint of the filing o f the complaint,”

3 W h eth er th e o n e- y ear ex h au stio n req u i rem en t is t erm i n ated b y th e f ilin g o f th e n o tice o f in te n t t o rem o v e to f ed eral d istrict co u rt o r b y th e d ate o f f ilin g o f th e co m

p lain t i n f ed eral d istrict co u rt m ak es n o dif f eren ce in th is case. W e th eref

o re d o n o t ad d ress th is q u estio n

.T A M O S A I T I S V

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42 U.S.C. § 5851(b)(1) (emphasis added); i n vestig ate the “violation alleg ed in the c omplaint[ ,] ” and “notify

. . . the
person alleged to have committed such violation of the r esults

o f the investig ation,” 42 U.S.C. § 5851(b)(2)(A) (emph a s i s

a dded); a nd, where a

ppropriate, enter a settlement “ with t h e person all e g ed to have committed [ the] violation,” id. (emphasis added). Knowing the identity of the respondent is thus a critical component o f carry ing out the prescribed procedure within the ag ency

.
Second, like the statute, DOL -OSHA reg u lations a ssume that every E RA whistleblower administrative complaint will

name a p articular respondent or r e s p o n dents, a nd that the named individuals will h ave an op portunity to p articipate throug hout the a g ency ’s adj udicative process. The
reg ulations pr ovide that “the Assistant Secretary w ill notify the respondent of the filing of the c o mplaint,” 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,” 2 9 C.F .R. § 24.10 4 ( b ) ; a nd that the ag ency “ will provide to the complainant

. . . a copy of all of respondent’s submissions to the a g ency ,” 29 U .S.C. § 24.104(c). The ag ency reg ulations define “respondent” a s “the employ er named in the complaint, who is alleg ed to have violated” the ant i

- r etaliation statute. 29 C.F .R. § 24.101. Unless such a respondent is “nam ed in the complaint,” id

., that individual or entity may not have the benefit of notice o r the opport unity to p articipate in the ag ency ’s complaint review process, and the ag ency may no t h av e occasion to consider that respondent’s submission of position.

T h ird, althoug h the opt-out provision speaks in g ene ra l
t erms and makes no specific mention of respondents, defendants, or employ ers, that p rovision contemplates a basicT A M O S A I T I S V

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level of similarity between an a g ency action a nd the corresponding federal suit. The opt-out clause provides that after one y e ar of ag ency inaction the employ ee “ may bring an

a c t i o n

. . . for de novo review.” 42 U.S.C. § 5851(b) (4 ). “[ D] e novo r eview” is a term of a rt that, in the administrative
contex t, g enerally refers to “[ a] court’s nondeferential r eview of an administrative d ecision, usu[ ally ] through a r e view o f the administrative record plus any additional evid e n ce the parties present.” B lack’s L aw Dictionary (9th ed. 2009). “[ D] e novo r eview” of an ag ency action f or which there is no final ag ency decision, as will inevitably be the c ase in actions under section 5851 ( b )(4), differs in important way s from judicial r eview of a final ag enc y d ecision. See S tone v

. Instrumentation Lab. Co.
, 5 9 1 F .3d 2 39, 246–47 (4th Cir. 2009). Still, Cong ress’s characteriz ation of the opt-out action

as review of the a g e ncy proceeding s indicates that the district
court litig ation is t i e d t o the c ase and the parties that were before the ag ency

.

F inally

, allowing an e mploy ee to sue a defendant w ho was not a respondent in the administrative proceeding s for a full y e ar before the c ase was moved to federal court would severely undermine the efficacy of th e administrative

ex h austion scheme.

Ex haustion is g e nerally required as a matter o f
p r eventing p remature in t er f e r e n c e w i t h
ag ency processes, so t hat the ag ency may function efficiently and so that it may have an opportunity to correct its o wn e rrors, to afford the parties and t h e c ourts the benefit of its

e x p e rience and ex pertise, and to compile a record which is adequate for judicial review.T A M O S A I T I S V

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W einberger v. Salfi

, 422 U.S. 749, 765 (1975). I f there were

no requirement of parity between the respondents in an ag ency action u nder the ERA and the d efendants named in a corresponding E RA whistleblower f ederal lawsuit, an employ e e could file a DOL -OSHA complaint, add an entirely

new respondent a y ear later, and — even if neither the new respondent nor the ag e n cy had notice of the new respondent’s involvement in the retaliat ion — proceed to federal court ag ainst the n e w r e spondent the v ery nex t day

. B y doing so, the employ ee would effectivel y m ake it impossible for the
ag ency to investig ate the alleg atio n s a g ainst the new respondent and create a record concerning that respondent. 4

A primary purpose of the o p t-out provision is to encourag e DOL -OSHA to resol ve w histleblower c laims promptly

. We cannot ex pec t DOL

- OSHA to resolve c laims
ag ainst u nknown respondents who h ave no opportunity to p a r t i cipate in the administrative process. Allowing the o ptout p r o v ision to become a mechanism for by passing Cong r ess’s carefully constructed scheme would frustrate the

4 T h e o pt- o u t p ro v isio n also p ro v id es th at a co m p lain an t m ay b rin g su i t in f ed eral co u rt o n ly if th ere is “ n o sh o w in g th at su ch d elay i s d u e to th e b ad f aith o f th e p erso n seek in g relief u n d er t h is p arag rap h .” 4 2 U.S.C. § 5 8 5 1 ( b )(4 ). T h is req u irem en t arg u ab ly w o u ld d ef eat d istrict co u rt j u risd ictio n if th e em

p lo y ee p u r

p o sely w aited u n til th e last m in u te to ad d

a resp o n d en t t o h is ag en cy co m plai n t , so as to cu rtail th e ad m in istrativ e p ro cess an d o b tain d e n o vo rev iew in d istrict co u rt (as o p p o sed to d ef ere n t ial rev i ew in a circu it co u rt of ap p eals f o llo w in g a f

in al ag en cy d ecisio n ). B u t assu

m i n g , w ith o u t d ecid in g , th at th e b ad

- f aith p ro v isio n ap p lies to th is scen ario do es n o t r e s o l v e t h e issu e th is case raises. W h eth er m otiv ated by ben ig n o r m an ip u lativ e in ten t, th e n eg ativ e im p act

o f b elated ly ad d in g a n ew resp o n d en t t o th e ag en cy rev iew pro cess is th e

sam e.T A M O S A I T I S V

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cong ressional intent that whistleblower claims be resolved at the ag ency

level, if possible. 5

According ly

, we hold that before an employ ee may opt out o f the ag ency p r ocess and bring a retaliation suit ag ainst

a respondent in federal court, that respondent must have had notice of, and an o p portunity to participate in, the ag ency action for o ne y ear. The f o rm a t and level of specificity required to “name” a respondent in an ag ency complaint is a

s e p a rate question, which we address in due c ourse as i t applies to this case.

( 2 ) G iven our holding reg arding the need to identify respondents, Tamosaitis’s claim ag ainst DOE fails for lack o f administrative ex h a u s tion. Tamosaitis’s first ag ency complaint did n ot name DOE as a respondent, did not indicat e t h at Tamosaitis intended to name DOE as a respondent, did not attribute a n y adverse employ

ment actions

5 T h e co n clu sio n w e reach to d ay o n th e ex h au stio n q u estio n d if f ers f ro m th e p reced en t in th e T itle VII realm

. “ ‘ T itle VII ch arg es can be b ro u g h t

a g a i n st perso n s n o t n am ed in an EEOC co m plain t as lo n g as t

h e y w e r e in v o lv ed in th e acts g iv in g rise to th e EEOC c l a i m s .’ ” EEOC v. Na t’l Ed u c. Ass’n

, Ala ska

, 4 2 2 F.3 d 8 4 0 , 8 4 7 (9 th Cir. 2 0 0 5 ) (q u o tin g So sa v. Hira o ka

, 9 2 0 F.2 d 1 4 5 1
, 1 4 5 8

– 59 (9 th Cir. 1 9 9 0 )). “ ‘ [W ]h ere th e EEOC

o r d ef en dan ts th em selv es sh o u ld h av e an t icip ated th at th e claim an t w ou ld

n am e th ose d ef

en d an ts in a T itle VII su it, th e co u rt h as j u risd i ctio n ov er th o se d ef en d an ts ev en th o u g h th ey w ere n o t n am ed in th e EEOC ch arg e.’ ” Id . (q u otin g So sa , 9 2 0 F.2 d at 1 4 5 9 ) (in t ern al q u o tatio n m ark s o m itted );

see a lso Ortez v. W

a sh in g t o n C

n ty. , 88 F.3 d 8 04
, 8 0 8 (9 th Cir. 1 9 9 6 ). T h is d if f eren ce ref

lects an im

po rtan t d i stin ctio n b etw een ag e n cy p ro ceed in g s u n d er T itle V II an d th e ERA : W h ereas EEOC p ro ceed in g s

u n d er T itle VII in v o l v e “ in f o rm al m eth o d s o f co n f

eren ce, co n c i l i a tio n , an d
p ersu asio n ,” 4 2 U .S.C. § 2 0 0 0 e

- 5 (b ), ERA p ro ceed in g s b ef o re DOL

OSHA are g eared to w ard s a d ju d ica tio n o f a retaliatio n claim on th e

m erits, see 2 9 C.F.R. § 2 4 .1 0 5 (a).T A M O S A I T I S V

. URS, I N C

. 17

t o D O E
, a

nd did not alleg e that DOE participated in any o f the a ctions from which T a mosaitis’s complaint arose. The only ro l e attributed to DOE in the orig inal complaint is its status as manag er of the Hanford site.

N o t until the f

irst amended OSHA complaint d i d Tamosaitis alleg e “DOE[ ’s] possible involv[ e] ment in retaliation,” asserting that D OE was upset about an email that Tamos a i t is sent out, and that he was removed “ at the direction of

. . . D OE W TP F ederal Project Director Dale Knudson.” B ut as these alleg ations ag ainst DOE were not made one y e ar before Tamosaitis opted out of the administrative review process, DOL -OSHA did not h ave the statutorily required period to consider them.

B e cause there was no admini s t r ative complaint pending
ag ainst DOE for one y ear before Tamosaitis filed suit ag ainst DOE in f

ederal court, section 5851(b)(4)’s administrative

ex h austion requirement was not satisfied as ag ainst DOE. According l y , w e affirm the dismissal of DOE from this litig ation. 6

(3) The district court r u led, and the URS entities maintain, that Tamosaitis similarly failed t o e x haust his administrative re m e d i es ag a inst them. According to the district court, once Tamosaitis chang ed respondent URS I nc. to U RS Corp. and URS E& C, Tamosaitis had to wait another full y ear before bring ing the suit to federal court ag ainst these

6 W e n o t e th at T am o saitis m ad e n o ef f o rt to f ile a s ep arate su it ag ain st D OE, or to am en d t

h e co m p lain t in th i s su it, o n ce th e y ear h ad e x p i r e d

. W e t h eref o re d o n o t ad d ress w h e th er th e case ag ain st DOE co u l d h av e g o n e f o rw ard h ad h e d o n e so

.T A M O S A I T I S V

. URS, I N C

. 18

defenda nts. W e ag ree as to URS Corp. but n ot as to U RS E& C.

The situation of URS E& C differs from that of both DOE and URS Corp. in a critic al respect: T he orig inal complaint adequately notified URS E& C that it was the intended respondent. Acco rding ly

, URS E & C’s position was f ully presented to the ag ency

. URS E& C w as therefore adequately named in the orig inal complaint.

Tamosaitis’s first ag ency complaint named “URS I nc.” a s respondent, but made clear that the intended respondent was “his employ er” and the “Principal Subcontract o r t o B echtel

. . . i n a g overnment contract

. . . at the Hanford Nucle a r Site.” URS Corp. and URS E& C r esponded to Tamosaitis’s administrative complaint in a n eig hteen-pag e position
statement to DOL -OSHA. The statement acknowledg es that Tamosaitis could only b e referring to URS E& C, a nd ex plains the relationship between the URS e ntities, Be c h tel, a nd Tamosaitis, as follows:

Mr. Tamosaitis’ employ e r is URS E n e rg y & Construction, I nc., a wholly -owned subsidi a r y of U R S Corporation. URS Energ y & Construction, I nc., h eld the name W ashing ton Group I nternational, I nc. (“W G ”) w h en it entered into the W T P c o ntract with B NI [ B echtel] ( “the Subcontract”). Once URS acquired W G in N ovember 2007, W G beg an doing business as the W ashing ton Division o f URS. I t continued to conduct b usiness in this

name until F ebruary 2010 when the W G name

was formally c h ang ed to URS Energ y & Construction, I nc.T A M O S A I T I S V

. URS, I N C

. 19

The pos i t i on statement then g oes on to acknowledg e that URS E& C “emp l o y s M r

. Tamosaitis and is the party to the Subcontract.”

The respons e addresses the merits of Tamosaitis’s alleg ations in depth, attaching evidence in support of its position. At no po i n t in the statement do the URS entities
assert Tamosaitis’s mistake i n n a ming URS I nc. instead o f URS E& C as a defense to the ag ency complaint.

Had URS E& C arg u ed b efore DOL -OSHA that it was not adequately named i n Tamosaitis’s complaint, the arg ument would not have had me r i t

. Administrative complaints a re g enerally less formal than their judicial counterparts. “[ A] dministrative p leading s are liberally construed and easily amended.” D onovan v

. Royal Logging Co.
, 6 45 F .2d 822, 826 (9th Cir. 1981).

Administrative complaints u nder the ERA’s an t iretaliation provision fit this g eneral mold. The whistleblower
reg ulations make clear that “[ n] o particular form of complaint is required.” 29 C.F .R. § 24.103(b). Complaint s m a y be made orally and reduc ed t o w r iting by the ag ency

. Id. OSHA’s whistleblower manual confirms that e mploy ees a re g enerally free to amend their complaints throug hout the
ag ency investig ation so long as the amendment “falls within the scope of the o r i gi n a l c omplaint.” U.S. Dep’t of L abor, OSHA I nstr u c tion, “W histleblower I nvestig ations Manual,” § 3–13 (Sept. 20, 2011).

F urther, under the ERA, DOL -OSHA complaints must be f iled within 180 d ay s of the alleg ed retaliatory co n d u c t

. 4 2 U.S.C. § 5851(b)(1). Combined with the accepted informality and f

luidity of agency pleading s, this briefT A M O S A I T I S V

. URS, I N C

. 20

window means that some e mploy ees will mis s t a t e the ex act

name of an intended respondent, as Ta m o saitis did with respect to URS E& C. W h ere, as here, neither the correct respondent nor DOL -OSHA had any difficulty identify ing the
proper respondent, a whistleblower’s technical mistake in providing the p recise name of the proper respondent s h o u l d not be dispositive.

I n sh o rt, Tamosaitis g ave adequate notice to URS E& C that it was the named respondent to his c omplaint, such that URS E& C could be d efended, and in fact was defended,
ag ainst the orig inal ag ency complaint. W e conclude that the administrative ex haustion was sufficient as to URS E& C.

URS Cor p

. , however, w as not adequately named in Tamosaitis’s orig inal a dministrative c omplaint. Ta m o saitis did not assert in the complaint that URS Corp. was either his employ e r or a subcontractor to B echtel at the H an ford site, and in fact it was n ot. Moreover, URS C o r p

. ’ s response to the orig in al complaint noted as much, and stated that “references to URS in the remainder of this initial statement of position are to URS E n erg y & Construction, and n ot U RS Corporation.” Thus, URS Corp. affirmatively indicated that it w a s participating in the procee d i n gs not as the alleg ed

wr o n gd o e r , but on behalf of URS E& C. According ly

, we affirm the district court’s dismissal of URS Corp. for lack o f administrative ex haustion.

B. Liability of

URS E&C

(1) URS E& C stip u l a t e d in the district c ourt that Tam o s a i tis eng ag ed in protected activity and was retaliated
aga i n s t b ecause of that c onduct. The company moved for
summary judg ment only on the g round that it was notT A M O S A I T I S V

. URS, I N C

. 21

responsible for t h e re taliation. T he district court ag r eed, holding that “Tamosaitis has not p r es e nted evidence r aising

a g enuine issue of material fact that h is employ er, U RS E& C, ‘took adverse action b e c au s e of his conduct,’” a nd that B echtel was “solely responsible” f or T amosaitis’s “ re m o val from the W TP project.” W e h old that Tamosaitis introduced evidence sufficient to create a triable issue as to whether his whistl e b l owing activity was a contributing factor in the

a dverse employ

ment action URS E& C took ag ainst h i m

. According ly

, w e reverse the g rant of summary judg ment to URS E& C.

To e s t a b l i s h a prima f

acie case o f ERA retaliation, an employ e e must show: (1) he “ eng ag ed in a protected activity ” ; ( 2) “the respondent knew or suspected . . . that the employ e e e ng ag ed in the pro t e cted a ctivity ”; (3) “[ t] he employ e e suffered an adverse action”; and (4 ) “[ t] he

c i rcumstances were sufficient to raise the inference that the protected activity was a contributing fact o r i n the adverse action.” 29 C.F

. R. § 2 4.104(f)(2); cf. Coppinger-Martin v

. Solis

, 627 F .3d 745, 750 (9th Cir. 20 1 0 ) ( i nterpreting the similarly structured whistleblower protection provision of the Sarbanes-Ox ley A ct); Araujo v. N.J. Transit Rail Operations, I n c

. , 708 F .3d 1 52, 157 (3d Cir. 2013) (interpreting t h e F ederal Railroad Safety A ct whist l e b lower statute). Under the ERA’s burden-shifting approach to retaliation claims, if

an employ ee shows that his participation in protected activity “was a contributing factor in the unfavorable personnel action alleg ed,” the burden shifts to the employ er. 4 2 U .S.C. § 5851(b)(3)(C); s ee also W illiams v. Admin. R ev. Bd.

, 376 F .3d 471, 476 (5th Cir. 2004). The employ er m ay t h en reb ut the employ ee’s prima facie c ase by introducing “ clear and convincing evidence that it would have taken the same unfavorable pe r s o n n el action in the absence of [ theT A M O S A I T I S V

. URS, I N C

. 22

employ ee ’ s participation in] such behavior.” 4 2 U .S.C. § 5851(b)(3)(D). 7

Apply ing this statutory scheme to this case, we note, f irst, that there is plenty of evidence that B e chtel encourag ed U RS E& C to remove T amosaitis from the W TP site because o f his whistleblowing

, that U RS E& C knew that Tamosaitis’s whistleblowing motivat e d B e chtel, and that URS E& C carried out the removal. F rank Russo, the Project Director for W T P a nd a B e chtel employ ee, forwarded URS E& C manag er Gay an email from D OE personnel reg arding Tam o s a i tis’s email a bout the M3 closure, which read: “I f this shows up in the press we will be sticking to our previous comment. Walt [ Tamosaitis] d o e s n o t speak for DOE

. . . . Please u se this
messag e as y o u see fit to accelerate s taffing chang es

. . . . ” I ntroducing this string of emails, Russo wrote Gay : “ W alt is killing u s. Get him in y our corporate of fice today .” Gay replied: “Dennis [ Hay es] has called. He w ill b e g o ne tomorrow.” The email is dated J uly 1, 2 01 0
, t h e d ay before Hay es, a URS E& C employ ee, removed Tamosaitis from the Hanford site. Anot her email dated J uly 1 from Russo, introducing the same email chain b ut sent to a DOE official, said that Russo was “livid a bout the string of emails W alt has
sent in the last 2 day s,” and that “ [ t] oday I told Gay that Walt will no long er be paid by

W TP.”

The thrust of the e mail chains are assuredly that B echtel, and DOE, w e r e ex tremely unhappy with Tamosaitis’s participation in protected ac t i vity a nd wanted him off the

7 T h e 1 99 2 am en d m en ts to th e ERA ad d ed a b u rd en

- sh if tin g p ro ced u re d i s t i n ct f ro m th at estab lish ed i n McDo nn ell Do u g la s Co r p

. v. Green
, 4 1 1 U.S. 79 2
, 80 0

– 0 5 (1 9 7 3 ). S ee Trimmer v. U. S

. D e

p ’ t of La b o r , 1 7 4 F.3 d 1 0 9 8 , 1 1 0 1 (1 0 th Cir. 1 9 9 9).T A M O S A I T I S V

. URS, I N C

. 23

project. 8 A reasonable factfinder could infer not only that the retaliatory motive of URS E & C’s customer, B echtel, spurred URS E& C’s actions ag ainst Tamosaitis, but also that U RS E& C knowing ly acquiesced in or ratified B ec h t e l ’s retaliation. A reasonable factfinder could also conclude that there is not clear a

nd convincin g e v i d ence that URS E& C would have taken the same a c tion had Tamosaitis not eng ag ed in protected activity

.

Under th e ERA’s whistleblower protection provision, such showin gs , i f established at trial, are sufficient to make URS E& C liable for retaliatory discriminatio n against Tamosaitis. The E RA forbids a n e m p l o y er from discriminating ag ainst an employ ee b ased on the e mploy ee’s whistleblowing activi t i e s even if the adverse action is taken
to maintain an advantag eous business relationship. Cf. Gerdom v. Cont’l Airlines, Inc.
, 692 F .2d 602, 609 (9th Cir. 1982); Fernandez v. W

ynn Oil Co.
, 653 F .2d 1273, 1276–77 (9th Cir. 1981). The purpose of the ERA’s a n ti-retaliation provision is to root out r etaliation a g ainst whistleblowers, for the b enefit of both the p ublic and the employ e e. “I t would be totally anomolous if we were to allow the preferences . . . of [ a] customer[ ] to determi ne whether the

. . . discrimination

was valid.” Gerdom

, 692 F

. 2d at 609 ( quoti n g D i a z v. Pan Am. W orld Airways, Inc.
, 442 F .2d 3 8 5, 389 (5th Cir. 1971)). W e h o ld that where an employ e r takes an adverse employ ment action to satisfy a c u s tomer with a r etaliatory

8 W e d eclin e URS E& C’ s i n v itatio n to ap ply j u d icial esto p p e l in th is

case. Fo r t

h e reaso n s ex p l ain ed

, T am o s aitis’ s i n sisten ce in state co u rt th at B ech tel “ w as b eh in d th e d ecisio n to rem o v e” h im f ro m th e W T P i s n o t

“ clearly in co n sisten t” w ith t h e arg u m en t t

h at URS E& C retaliated ag ain st T am o saitis b y carry in g o u t B e c h t e l ’ s req u est. S ee Ba u g h ma n v. W

a l t Disn ey W orld Co

. , 6 8 5 F.3 d 1 1 3 1 , 1 1 3 3 (9 t h Cir. 2 0 1 2 ).T A M O S A I T I S V

. URS, I N C

. 24

motive o f which the employ er is aware, retaliation is a “contributing factor,” 42 U.S.C. § 5 851(b)(3)(C), in the employ e r’s decision to take that action.

Under this framework, the presence of a n employ er’s subjective retaliatory a n imus is irrelevant. All a p laintiff
must show is that his “protected activity was a contributing factor in the adverse [ em p l o y ment] action.” 29 C.F .R. § 24.104(f)(1). The relevant causal connection is not b etween retaliatory animus and personnel action, but rather b etween protected activity and personnel action. As a result, there is

no mean ing ful distinction between an employ er who takes action based on i t s own r etaliatory animus and one that acts to placate the r etaliatory a n imus o f a c u stomer. Either way , the fact that the employ ee eng ag e d in p rotected activity is the cause of the action taken ag ainst him.

I n the analog ous c ontex t o f T itle V I I ac t i o n s , we have long held that a customer’s discriminat o r y p reference does
not justify a

n employ er’s d iscriminato r y practice u nless

— f o r those protected categ ories for which the defense i s available under Title VI I — the disc r i minatory r equirement
amounts t o a bona fide occupational qualification. See 42 U.S.C. § 2000e-2(e) ; G e r d om , 692 F .2d a t 609; Fernandez

, 653 F .2d at 1276–77. I m p l i c i t in such holding s is the commonsense conclusion that when a k n o w n o r attributed discriminatory custo m e r preference motivates an adverse employ

ment action, the discriminatory preference is a cause of the employ

ment action.

Since Tamosaitis has sh own that his protected activity

was a “contributing factor” in the adverse employ ment action h e suffered, he has met his b urden for e stablishing a prima facie case o f retaliatio n u n d er the ERA. The ERA containsT A M O S A I T I S V

. URS, I N C

. 25

n o bona f

ide occupational q

ualification defense. I nstead

, where retaliation is a contributin g f a c t or to an employ er’s adverse a ction, the statute requires that t he employ er demonstrate b y clear and c onvincing evidence that it w ould h a v e taken the adverse action even if the employ ee ha d n o t participated in the protected activity

. 4 2 U .S.C. § 5851(b)(3)(D).

On the present record, URS E& C has made no such showing

. The only r elevant arg ument URS E& C makes is that it had no c h o i ce u nder its contract with B echtel to continue to employ someone o n the Hanf o rd project if B echtel demanded that that person be removed, reg ardless o f the reason for the r equest. B ut this sug g estion is unavailing

.

A trier of fact could conc l u de that URS E& C’s contract with B echtel did not require URS E& C to transfer an employ e e 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 mann er. The Contracting Officer m a y require, in writing

, that the Contractor remove from the work any employ ee the Contracting Officer deems i n c o m p e t ent, careless or otherwise objectionable. ” No one contends that Tamosaitis was “incompetent” or “careless.” Thu s the question is whether the term “o t h erwise objectionable” is broad enoug h to encompass unlawful, retaliatory o bjections. As “a g eneral phrase at the e nd of a list is limited to the same ty pe of thing s (the g eneric categ ory

)

. . . f ound in the specific list,” Antonin Scalia & B ry an A. Garner, Reading Law: The Interpretation of Legal Texts 203 (2012) (quoting W illiam D. Popkin, A Dictionary of

S tatutory Interpretation 74 (2007)), “otherwise objectionable,” read in lig ht of the preceding criteria, best refers to concerns reg arding a n employ ee’s w ork quality a ndT A M O S A I T I S V

. URS, I N C

. 26

productivity

, not to an employ ee’s protected airing of public safety c oncerns. See also Los Angeles News S e r v. v. CBS Broad., Inc.
, 3 05 F .3d 924, 933 (9th Cir.) as a me n de d by 313 F .3d 1093 ( 9th Cir

. 2002). F or ex ample, if B echtel viewed d isabled o r female e m p loy ees as undesirable, the “otherwise objectionable” lang ua ge would not c onfer the rig ht to order such employ ees discharg ed without re g ard to their productivity

, o n-the-job honesty

, or other c riteria r elated to their ability to perform their jobs.

Su p p orting this r eading of “otherwise objectionable” a s not reaching retaliation or other proscribed reasons is the consideration that a contract re q u i r i ng compliance with a transfer or discharg e d emand trig g e red by a known r etaliatory

reason could be void or unenforceable as ag ainst public policy

. See R estatement ( Second) o f Contracts § 178 ( 1 981); W .R. Grace & Co. v

. Local Union 759, I nt' l U nion o f United Rubber, Cork, Linoleum & Plastic W orkers of Am.
, 461 U.S. 757, 766 (1983) (a court may not enfor c e a discriminatory
contract contrary to public policy ). Read i n g “otherwise

o b j e ct i o n a b l e ” a s n o t e n c o m p a s s i n g i m p e r m i s s i b l e motivations a voids that possibility

. Cf. Restatement ( Second) of Contracts § 207 (1981) (ambig uous contracts are to be read consistently

with the public interest).

Moreover, an employ er m a y be liable for the r etaliatory conduct of a

nother entity “where the employ er either ratifies

or acquiesces” in the r etaliat i o n “ by not taking immediate and/or corrective actions w hen it knew or should have known of the co n d u c t

. ” F

olkerson v. Circus Circus Enters., Inc.
, 107 F .3d 7 54, 756 (9th Cir. 1997). Viewing the r ecord in the lig ht most favorable to the non-movant, Tamosaitis, a s we must on summary judg m e nt, Nolan v. Heald College

, 551 F .3d 1148, 1154 (9th Cir. 2009), it supports the reasona bleT A M O S A I T I S V

. URS, I N C

. 27

inference that URS E& C ratified B e chtel’s r e t a liation b y transferring T amosaitis, despite knowledg e of B echtel’s retaliatory motive. Equally supported is the r e asonable inference that URS E& C could have r efused to carry out Tamosaitis’s removal but failed to do so.

URS E& C supervisor B ill Gay acknowl e d ge d that if B echtel o rdered him to transfer a woman and he knew the
reque s t was motivated by sex ual animus, he would not immediately cede to the request, a nd would instead take the issue to his c orporate headquarters in protest. A jury could view this e vidence as supporting the reasonable inference that URS E& C retained some c o ntrol over staffing decisions at t he Hanford site. See 42 U.S.C. § 5851(b)(3)(C) (protect e d activity n eed only b e a “contributing f actor in unfavo r a b le personnel action alleg ed”).

(2) As a separate g round for g ranting URS E &C
summary judg ment on T a mosaitis’s retaliati o n c laim, the district court held that “[ n] othing in t h e r e c ord creates a g enuine issue

. . . that URS E& C has discriminated ag ainst [ Tamosaitis] with r espect to h is compensation, terms, conditions, or privileg es of e m p l o y m ent in violation o f the E R A

. ” The district court cited the f act that Tamosait i s continues to r eceive bonuses a nd has had oth e r meaning f ul work assig nments since the W T P.

“B y its te r m s , s e ction 5851(a) prohibits

. . . employ ers from discriminating in practi c ally any job-related f a shion
ag ainst an e mploy ee because t h e employ ee [ eng ag ed in protected activity ] .” DeFord

, 700 F .2d at 286. T r a nsfer to “less desirable employ

ment” is job-related discrimi n a tion under the ERA. Mackowiak v. Univ. Nuclear Sys., Inc.
,T A M O S A I T I S V

. URS, I N C

. 28

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 p revious position at Hanford. At Hanford he supervised a 5 00 million dollar p rog ram involving fifteen-to-fifty employ ees. Now, he does not supervise any prog rams, and no e mploy ees r e p o rt to him. Since J anuary 1, 2012, he has not received an ann u al b o n u s

as he did at Hanford, thereby losing $30,000 to $100,000 in compensation each y ear. O f the a lternative e m p loy ment opportunities URS E& C o ffered Tamosaitis, the primary o ne

was in another country , a transfer undesirable for him because

o f h is family ties in the United States. The evidence th u s creates a g enuine issue o f fact as to wheth e r T a m osaitis’s

co m p e n s a t i o n , t e r ms, conditions, or privileg es o f employ ment were affected by

his transfer.

According ly , we reverse the g rant of summary judg ment to URS E& C for ERA whistleblower retaliation.

III.

Having determi n e d that Tamosaitis’s suit ag a inst U RS E& C may p roceed to trial, w e turn to whether Tamosaitis has

a rig ht to trial b y jury

. The district court g ranted URS E& C’s motion to strike Tamosaitis’s jury demand, ruling t h at Tamosaitis had neither a statutory nor a constitutional r ig ht to

a jury trial for his claim under the opt-out p r o v i s i o n o f the ERA w histleblower protection provision. We hol d that Tamosaitis h as a c onstitutional r i gh t to a jury trial f o r his claims seeking money damag es ag ainst UR S E &C a nd so reverse the district court’s ruling

.T A M O S A I T I S V

. URS, I N C

. 29

A. Statutory Right to Jury Trial

B e fore r eaching a c onstitutional question, a c ourt must “first ascertain whether a construction of the statute is fairly
pos s ible by which the [ c onstitutional] question may be avoided.” City of

Monterey v

. D el M

onte Dunes at M

onterey, Ltd.

, 526 U.S. 687, 707 (1999) (alter a tion in orig inal) (quoting Feltner v. Columbia P ictures Tele v i s ion, Inc.
, 523 U .S. 340, 345 (1998)). A ccording ly

, before proceeding
to hold that t here is a constitutional jury trial rig ht in cases filed under 42 U .S.C. § 1983, Monterey determined that there

was no statutory rig ht to trial by jury under section 1983. Id.

The appel l e e s in Monterey maintained that the term, “action a t law,” used i n t h e statute was a “term of art imply ing a righ t t o a jury trial.” Id. a t 707–08. The Court disag reed that “thi s [ w a s]

. . . a necessary implication,” a nd

“ decline[ d ]

. . . to find a statutory jury rig ht under § 1983 based solely on the authoriz a tion of ‘an action at law.’” Id. at 708 ( emphasis added). I n doing so, Mo n t e rey disting u ished section 1 9 8 3 f

rom the Ag e D iscrimination in Employ ment Act of 1 967 ( “ADEA”) at issue in Lorillard v. Pons
, 434 U.S. 575 (1978), ex plaining that Lo r illard held that there was a statutory rig ht to a jury t r i al “ in p art because [ the ADEA] authoriz ed ‘ legal

. . . r e lief,’” and in part because of the ADEA’s “ex plicit incorporation of the procedures of the F air L abor Standards Act, which h ad been interpreted to g uarantee trial by jury in private actions.” Id. (fir s t emphasis a dded) (citing Lorillard

, 434 U.S. at 580).

L ike section 1983, the ERA provides for “an a ction at law

or equity for de novo revi e w , ” 4 2 U.S.C. § 5851(b)(4), a nd makes no ex press referenc e to a jury trial. Cf. 42 U .S.C. § 1981a(c)(1) (“I f a complaining party seeks compensatory o rT A M O S A I T I S V

. URS, I N C

. 30

punitiv e damag es under this section

. . . any party may demand a trial by jury ”); 46 U.S.C. § 30104 (“A seaman injured in the course o f employ ment

. . . may elect to bring a civil action at law, with the rig h t of trial b y jury .”). Althoug h the phrase “action at law” is consistent w ith a statutory rig ht
to jury trial, the phrase standing alone is under Mo n t e r e y insufficient to establish a statutory jury tria l r i ght for ERA whistleblower suits. See Monterey , 526 U.S. at 708.

B. Constitutional Right to Jury Trial

“Given this statutory silence, w e m u st answer the

c o n s titutional question presented.” Tull v. United States
, 481 U.S. 412, 417 n. 3 (1987). The Seventh A mendment provides that “[ i] n Suits at common law, where the val u e i n controversy shall ex ceed twe n t y d ollars, the rig ht of trial b y jury shall be preserved

. . . .” U.S. Const. amend. V I I (emphasis added). This constitutional g uarantee “appl[ ies] to actions enforcing statutory rig hts, and requires a jur y t rial
upon demand, if the statute c reates leg a l rig hts and remedies, enforceable in an action for damag es in the ordinary c ourts o f law.” Curtis v. Loether , 415 U.S. 189, 194 (1974).

“Consistent w ith the tex tual mandate that the jury rig ht be preserved,

. . . interpretation of the A mend m e n t has been
g uided b y historical analy sis.” Monterey
, 526 U.S at 708. I n apply ing that a

naly sis, we “ex a mine both the nature of the statutory action a

nd the remedy soug ht,” Feltner

, 5 23 U.S. at 348, to determine whether the claim at issue is a “cause o f action that e ither was tried at law at the time of the founding

or is

. . . analog ous to o ne th a t w as,” Monterey
, 526 U.S. at 708 ( quoting Markman v. W estview Instru m e n ts, Inc.
, 51 7 U.S. 370, 376 ( 1996)). Consideration of the remedy
soug h t is the critical factor in this analy sis. Granfinanciera,T A M O S A I T I S V

. URS, I N C

. 31

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 sect i o n 1983 suit “seeking leg al relief is an action at law within the meaning of the Seve n th Amendment” e ven thoug h there was no action equivalent to section 1 9 83 at the time the Seventh Amendment was adopted. 526 U.S. at 709. The consti t u t ional rig ht to a jury trial, Mo n t e rey determined, “ex tends to statutory c laims

u nknown to the common law, so long as the claims can b e said to ‘ soun[ d] basically i n t o r t,’ and seek leg al relief.” Id. (quoting Curtis
, 415 U.S. at 195) (alteration in orig inal). A s the plaintiff in Monterey soug ht compensatory damag es, a nd because “compensation is a purpose ‘traditionally associated with leg al relief,’” i d

. a t 710–11 (quoting Feltner

, 523 U.S.
at 352), the Court concluded the remedy so u gh t w as a leg al
one, id. at 710.

Tamosaitis’s whistleblower suit also “sounds in tort” a nd seeks compensatory damag e s. His lawsuit is analog o us to a wrong ful discharg e c laim at common law, “ a tort so widely accepted in American jurisdictions today we are confident that it has b e come part of our evolving common law.” Spinelli

, 12 F .3d a t 857. “[ W ] h erever the [ r etaliatory discharg e] tort has been r e c o g n iz ed, it has been treated a s leg al and n ot equitable.” I d. Althoug h Tamosaitis is not alleg ing complete termination, his claim for wrong ful transfer is for present purposes suffic i ently analog ous to wrong f ul discharg e for u s to conclude that the nature o f the statutory rig ht is leg al. See Monterey , 626 U.S. at 709. 9

9 Al t h o u g h th e m aj o rity o f state co u rts d o n o t reco g n ize ad v erse

em p l o y m en t claim s f

allin g sh o rt o f actu al or co n stru ctiv e d isch arg e, Resta temen t (

Th ird ) o f Emp lo ymen t La w § 5 .0 1 cm

t

. c. at 1 88 (P ro po s edT A M O S A I T I S V

. URS, I N C

. 32

Most critically

, t

h e E R A a n t i

- r e t a l i a t ion provision, section 5851, ex p r essly authoriz e s award of “compensatory damag es” to a complainant. 42 U.S.C. § 5851(b)(2)(B ). As

o n e commentator has noted: “I t is established law t h at ‘compensatory damag es’ are a v ailable under the ERA

w h i s t l e b l o w e r p r o v i s i o n a n d o t h e r e n v i r o n m e n t a l whistleblower sta t u t e s a nd that ‘compensatory damag es’ under these statutes means non-pecuniary d amag es, which include recovery for mental ang uish, emotional distress, p ain and suffering

, h u m i liation, and loss of professional reputation.” J arod S. Gonz alez

, Sox

, Statutory Interpretation,

a n d t h e S

e v e n t h A m e n d

m e n t : S a r b a n e s

- O

x l e y A ct W histleblower Claims a n d J u ry Trials

, 9 U

. Pa. J

. L ab. & Emp. L

. 25, 45 & n.125 (2006) (collecting cases).

Althoug h he also requests injunctive relief, “ back pay

. . . and lost benefits,” Tamosaitis seeks c o mpensatory damag e s for “loss of e njoy

ment of life, pain and suffering

, mental
ang uish, emotional distress, injury to reputati o n , a nd humiliation.” “And there is overwhelming evidence that the consistent practice at common law was fo r j u r i e s to award damag es.” Feltner

, 5 23 U .S. a t 3 5 3

. A c c ording ly

, both the
nature of the claim (wrong ful transfer) and, more importantly

,

Fin al Draf

t 2 0 1 4), “ [t]w o s t ate su

p rem e co u rts h av e ex p licitly s u stain ed

‘ w ro n g f u l d em otio n ’ claim s an d a f ew i n term ed iate ap p ellate co u rts h av e eith er su s tain ed claim s o f th is ty p e o r i n d i cated th eir ap p ro v al o f su ch claim s,” § 5 .0 1 cm

t. c. rep o rters’ n o t es at 1 9 8 ( c o llectin g cases). T h ose

co u rts th at d o allo w su ch c l aim s em p h asize th at th ey are an alo g ou s to

w ro n g f u l disch arg e claim s. S

ee, e.g

. , Ga rcia v. Ro ckwell In t’l Co rp

. , 1 8 7 Cal. A

pp

. 3 d 1 5 5 6
, 1 5 6 2 (Ct. A

p p

. 19 8 6 ), a b ro g a ted o n o t her g ro un d

s b y G a n tt v. Sen t

ry In s. , 1 Cal.4 th 1 0 8 3 (1 99 2 ), overru led o n o t h er g ro un d

s b y G reen v. Ra lee En g ’g

Co

. , 1 9 C al. 4 th 6 6
, 8 0 n .6 (1 99 8 ); Brig h am v. Dillo n Co s

. , 2 62 Ka n

. 1 2
, 20 (1 99 7 ); T ro sp er v. Ba g ‘N S

a ve , 27 3 Neb

. 8 5 5 , 8 6 4 (2 0 0 7 ).T A M O S A I T I S V

. URS, I N C

. 33

the nature of the relief sough t ( c ompensatory damag es) support a rig ht to trial by

jury

.

URS E& C a

rg u e s that the monetary relief Tamosaitis seeks is intertwined with and incidental to the injun c t i on soug h t, so his overall suit sounds in equity

. 1 0 B ut Tamosaitis’s pray er for monetary r elief e x tends bey ond back
pay , a form of m onetary relief that, when restitutionary o r “incidental to

. . . injunctive relief,” is fairly characteriz ed a s equitable. Chauffeurs, Teamster s a nd H elpers, Local No. 391 v. Terry , 494 U.S. 558, 570–71 (1990); see Lutz v. Glendale Union High Sch.

, 4 03 F .3d 1 061, 1 0 6 9 (9th Cir. 2005). He also requests reputational damag es and mental and emotional damag es. Such da m ag es are not merely incidental to the equitable relief of reinstatement. S e e T u ll

, 481 U .S. at 425; Curtis
, 4 15 U .S. at 1 96 n.11. And where a statute a uthoriz e s b o th equitable a

nd leg al relief, the plaintiff’s decision t o “join[ ] ” a leg al claim with an e q ui t a b l e c laim does not “abridg e [ ] ” “the rig ht to jury trial o n t h e l e g a l claim.” Curtis
, 415 U.S. a t 1 96 n.11. I t is irrelevant whether an action is properly characteriz ed “as one for damag e s a nd injunctive r elief, or as one for d amag es alone, for purposes o f analy z ing the jury trial issue.” Id.

1 0 URS E& C arg u es th at co m p en sato ry d am ag es u n d er th e ERA ar e d iscretio n ary , an d su g g ests th at th eir d iscretio nary n atu re m ak es th em eq u itab l e, rath er th an leg al, relief

. No t s o

. W h ile th e statu te p ro v id es th at

u p o n f i n d in g an em

p lo y er h as v io lated t h e statu te, th e ad j u d icato r “ m ay

o rd er

. . . co m

p en sato ry dam ag es,” 4 2 U.S.C. § 5 8 5 1 ( b )(2 )(B ), th is f o rm u latio n ref lects th at an aw ard of co m p en sato ry d am ag es d ep en d s o n p ro o f of t

h e d am ag es alleg ed

. S

ee Cu rtis
, 4 1 5 U.S. at 18 9 –9 0
, 1 9 7 (in t erp retin g statu te p ro v id i n g th at “ co u rt

. . . m ay aw ard to th e p lain tif f
actu al d am ag es” to m ean t h at “ if a p lain tif

f p ro v es u n law f

u l d iscrim in atio n

an d actu al d am ag es, h e is en titled to j u d g m en t f o r th at am ou n t”).T A M O S A I T I S V

. URS, I N C

. 34

I n deny ing Tamosaitis a jury trial, the district court added

a third factor to the constitutional inquiry : W hether the plaintiff’s suit vindicates a p r ivate or public rig ht. The district court concluded that when “Cong ress may assig n the adjudication of a statutory cause of action to a non-Article I I I tribunal,” as it undisputedly c an—and does—with r espect to ERA r etaliation claims, “ the Seventh A mendment poses no independent bar to the adjudication o f tha t a c tion by a nonjury factfinder.” I

n the d istrict court’s view, because the whistleblowe r p rovision vindicates a “public rig ht” over wh i ch Cong ress has c o nferred adjudicatory power to DOL

OSHA, the Seventh Amendment d oes not require a jury trial when, under the ERA’s opt-out provision, the claim is heard instead in federal court.

This analy sis mistakenly conflates two separate issues

— (1) when Cong ress may assig n claims involving public rig hts
to non-Article I I I adjudicatory bodies, and (2) w hether, when such claims are assig ned to federal courts f or a d judication, there is a c onstitutional jury trial ri gh t

. Granfinanciera concerned the first issue, h olding that Cong ress can g ive nonArticle I I I c ourts the power to m ak e finding s of fact as to claims involving public rig hts. 492 U.S. at 51–52.

I n so holding

, Granfinanciera made its narrow scope clear: “Cong ress may devise novel claims of action involving public r ig hts free from the strictures of the Seventh Amendment if it assig n s their ad j udication to tribunals without statutory authority to employ juries a s factfinders.” Id. at 52 (emphasis added). “Cong ress is not required by the Seventh Amendment to ch o k e t he already crowded federal
courts with n ew ty

pes of litig ation or prevented from committing some new ty pes o f litig ation to administr ative species with special competence in the relevant field,” a ndT A M O S A I T I S V

. URS, I N C

. 35

“ [t] his is the case even if the Seventh Amendment would have required a jury where t h e 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 r ig ht to a jury trial “turn[ s] to a cons i d e r a ble de g ree on the nature of the forum in which a litig ant [ finds] himself.” A t l a s Roofing

, 4 30 U.S. at 458. Consistent with this framework, Congress may confer adjudicatory authority of a new statutory rig ht to an administrative process “with which [ a] jury would be incompatible.” Id. at 450. B ut where Cong r e s s p rovides f or f ederal d istrict court authority

over a public statuto r y r i gh t — here, after a non-Article I I I tribunal h ad a n o pportunity to rule on the case and failed to do so — the c onsiderations that p ermit ag ency determination of such ri gh t s without trig g ering Seventh A mendment concern disappear.

I n the E RA’s opt-out provision, “Cong ress

. . . chose an ag g r essive timetable for resolvingwhistleblower claims and

. . . created a cause of ac t i o n in a n alternative forum should the DOL fail to comply with such schedule.” Stone
, 591 F .3d
at 248 (4th Cir. 2009) ( c o nstruing the Sarbanes-Ox ley Act). Cong r ess thereby g ave a n administrative ag ency a “first crack” at r esolving the dispute; after one y ear, jurisdiction is available in federal courts, at which point any finding s made by the ag ency have no preclusive effect. See i d

. a t 247. I n sum, absent a final decision from the ag en c y w i t hin theT A M O S A I T I S V

. URS, I N C

. 36

specified period, “the e mploy ee may

. . . file a federal civil

cause of action,” Day v. Staples, I nc. , 555 F .3d 42, 53 (1st Cir. 2009), and t h e “ proceeding s beg in anew in district court,” Stone , 591 F .3d at 248.

Assuming

, as we d o for present p urposes, that the ag ency is properly

vested with the ability

to hear and make finding s

as to such a d ispute without a jury

, the fact that Cong ress has
g iven adjudicatory power to DOL

- OSHA in the f irst instance does not cut away the constitutional rig ht to a jury whe n the

su it moves to f

ederal court. Put differently

, once the retaliation claim is in the district court — a forum which traditionally employ s juries a nd is constitutionally oblig ed to do so for claims meeting certain criteria — a cause of action meeting those criteria is not shorn o f a jury trial rig ht because it could have been decided b y a n a dministrative ag ency without a jury

.

F or these reasons, we conclude that Tamosaitis has a rig ht
to a jury trial in the district court for h i s claims seeking

m o n ey damag es under section 5851(b)(4), and we rever s e. W e note that this holding ex tends to plaintiffs a nd defendants alike: An employ er hailed into federal court to defend ag ainst

a w histleblower retaliation s uit for money damag es may demand the constitutional protection of a trial by jury

.

IV.

F or the reasons ex plained, we affirm t h e d i smissal o f DOE from this su i t , and also affirm the g rant of summaryT A M O S A I T I S V

. URS, I N C

. 37

judg men t in URS Corp.’s f avor. W e r everse the g rant o f
summary judg ment for URS E& C and remand to the district court for further proceeding s consistent with this opinion. 1 1

AF F IR MED IN P ART, REVERSED IN P ART AND REMANDED.

11 T a m o s a i tis ask s th at w e rem an d to a dif f eren t j u d g e. W e d en y th e req u est. W e “ rem an d to a d if f eren t district j u d g e if a p arty can sh o w p erso n al biases o r u n

u s u al circu m stan ces, b ased on an assessm en t o f th ree f acto rs: (1 ) w

h eth er o n rem an d th e district j u d g e can b e ex p ected t o f o llo w th is co u rt’ s d ictates; (2 ) w h eth er reassig n m en t is ad v isab le to m ain tain th e ap p earan ce o f

j u stice; an d (3 ) w

h eth er reassig n m en t risk s u n d u e w aste an d d u p licatio n .” U

n ited S ta tes v. L

yo n s , 4 7 2 F.3 d 1 05 5
, 1 0 7 1 (9 th Cir. 20 0 6)

a s a men d ed o n reh ’g in p a r t ( J a n

. 1 1
, 2 0 0 7 ) (citin g Un ited S t a t es v. Peyto n , 3 5 3 F.3 d 1 0 8 0
, 1 0 9 1 (9 th Cir. 2 0 0 3 ), overru led o n o th er g ro un d s b y Un ited S t a t e s v. Co ntrera s , 5 9 3 F.3 d 11 3 5
, 1 1 3 6 (9 th Cir. 2 0 1 0 ) (en b an c)). Here, th ere is n o in d icatio n o f p erso n al b ias o r o th er u n u su al circu m s tan ces. T h e d istrict co u rt j u d g e erred in so m e resp ects b u t n o t

o th ers, an d w e h av e ab so lu tely n o reaso n to b eliev e h e w ill n o t f o llo w ou r

ru lin g s o n

rem an d . No r d o th e o th er tw o f acto rs ap p ly

.