FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WALTER L. TAMOSAITIS, PH.D., an

individual,

Plaintiff-Appellant,

v.

URS INC., a Delaware corporation;

URS ENERGY AND CONSTRUCTION

INC., an Ohio corporation; U.S.

DEPARTMENT OF ENERGY; URS

CORPORATION,

Defendants-Appellees.

No. 12-35924

D.C. No.

2:11-cv-05157-

LRS

OPINION

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

Before: Alex Kozinski, Chief Judge, and Richard A. Paez

and Marsha S. Berzon, Circuit Judges.

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 EnergyReorganization 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), Georgetown University

Law Center, Appellate Litigation Program, 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.

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.
TAMOSAITIS V. URS, INC. 5

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.

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

 

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.
6 TAMOSAITIS V. URS, INC.

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

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 sixmillion-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
TAMOSAITIS V. URS, INC. 7

concerns to a meeting hosted byBechtel; 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 nonsupervisory 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:

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
8 TAMOSAITIS V. URS, INC.

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

HealthAdministration (“DOL-OSHA”) implements this antiretaliation 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

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.
TAMOSAITIS V. URS, INC. 9

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).

C. Procedural Background

On July30, 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,
10 TAMOSAITIS V. URS, INC.

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.

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

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
TAMOSAITIS V. URS, INC. 11

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 parentsubsidiary 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.

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.”

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.
12 TAMOSAITIS V. URS, INC.

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

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,”

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. 13

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

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

Secretarya 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
14 TAMOSAITIS V. URS, INC.

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.

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.
TAMOSAITIS V. URS, INC. 15

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

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 optout provision to become a mechanism for bypassing

Congress’s carefully constructed scheme would frustrate the

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.
16 TAMOSAITIS V. URS, INC.

congressional intent that whistleblower claims be resolved at

the agency level, if possible.5

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

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). 

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 DOLOSHA are geared towards adjudication of a retaliation claim on the

merits, see 29 C.F.R. § 24.105(a).
TAMOSAITIS V. URS, INC. 17

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

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

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.
18 TAMOSAITIS V. URS, INC.

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

. . . 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 referringto 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.
TAMOSAITIS V. URS, INC. 19

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

would not have had merit. Administrative complaints are

generally less formal than their judicial counterparts. 

“[A]dministrative pleadings are liberallyconstrued and easily

amended.” Donovan v. Royal Logging Co., 645 F.2d 822,

826 (9th Cir. 1981).

Administrative complaints under the ERA’s antiretaliation 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
20 TAMOSAITIS V. URS, INC.

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 anydifficulty 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,

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 stipulated in the district court 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
TAMOSAITIS V. URS, INC. 21

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.

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-OxleyAct); 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
22 TAMOSAITIS V. URS, INC.

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

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

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).
TAMOSAITIS V. URS, INC. 23

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

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

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).
24 TAMOSAITIS V. URS, INC.

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

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
TAMOSAITIS V. URS, INC. 25

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

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

ContractingOfficer 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
26 TAMOSAITIS V. URS, INC.

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

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
TAMOSAITIS V. URS, INC. 27

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

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.,
28 TAMOSAITIS V. URS, 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

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.
TAMOSAITIS V. URS, INC. 29

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.

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
30 TAMOSAITIS V. URS, INC.

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,

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,
TAMOSAITIS V. URS, INC. 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 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

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 wrongfultransfer

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

9 Although the majority of 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
32 TAMOSAITIS V. URS, INC.

Most critically, theERAanti-retaliation provision, section

5851, expressly authorizes award of “compensatory

damages” to a complainant. 42 U.S.C. § 5851(b)(2)(B). As

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,

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.,

187Cal. 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).
TAMOSAITIS V. URS, INC. 33

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

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.

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

actual damages” to mean that “if a plaintiff proves unlawful discrimination

and actual damages, he is entitled to judgment for that amount”).
34 TAMOSAITIS V. URS, INC.

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 DOLOSHA, the Seventh Amendment does not require a jury trial

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 nonArticle 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
TAMOSAITIS V. URS, INC. 35

“[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

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
36 TAMOSAITIS V. URS, INC.

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

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
TAMOSAITIS V. URS, INC. 37

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 ofjustice; 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.