Tamosaitis v. URS, Inc.

If one brings an action under 42 U.S.C. § 5851(a)(1)(A), he can only bring the action to federal court against defendants who have had at least one year’s notice of and opportunity to participate in the action.

Dr. Walter Tamosaitis, an employee of URS Energy & Construction, Inc. (URS E&C), was demoted in 2010 when he objected to the resolution of an issue with nuclear waste tanks due to environmental and safety issues. On July 20, 2010, Tamosaitis filed a discrimination action with the Department of Labor, Occupational Safety and Health Administration (“DOL-OSHA”) under 42 U.S.C. § 5851(a)(1)(A) against his employer, URS, Inc. He alleged violations of the Energy Reorganization Act whistleblower protection provision, which protects employees from discharge or discrimination by an employer because he or she raised a safety or quality concern under the Development of Energy Sources chapter or the Atomic Energy Act of 1954. 42 U.S.C. § 5851(a)(1)(A). This action must first be filed with the DOL-OSHA. If the DOL-OSHA has not adjudicated the employee’s claim after one year, then the employee may take the case to federal court. On December 15, 2010, Tamosaitis gave notice of his intent to file the action in federal court. He also added the Department of Energy (“DOE”) as a defendant and changed his employer’s name from URS, Inc. to URS, Corp. and URS E&C. On November 9, 2011, Tamosaitis filed a complaint in federal court under 42 U.S.C. § 5851(a)(1)(A) against the DOE, URS, Corp., and URS E&C. In accordance with the statute, Tamosaitis needed to provide the defendants at least one year to participate in the agency action. The panel ruled the DOE was not afforded adequate time to participate because the addition of a new party restarts the clock for that particular party. Tamosaitis’s employer did not fall under this rule. Instead, the panel held if a respondent is adequately named to give notice, an amendment to correctly name the respondent will not restart the clock. AFFIRMED IN PART, REVERSED IN PART, REMANDED.