Appeals

Supreme Court

Argued by Sheridan

Jury verdict affirmed

Case settled on appeal before argument owing to strength of plaintiff’s opening brief

No. 588567-I. Race discrimination case involving Chinese American working at the Seattle Public Library.  Case lost at trial owing to error in jury selection, which improperly excluded a Chinese American jury service in violation of constitutional rights.  On appeal, case settled for $200,000.00.  See copy of appellate brief filed with the Washington State Court of Appeals.

91 Wn.App. 138, 955 P.2d 822 (Div. 1 1998). Race discrimination case lost at trial owing to error in jury instructions and improper closing argument by defense counsel. Case settled after plaintiff’s successful appeal to Washington State Court of Appeals.
To review court’s decision link to: FindLaw

January 2012, Seattle Washington

Bruce Johnson settled his discrimination case against Chevron after winning an important appeal that established how disability discrimination cases will be handled by the Courts in Washington for years to come.  Jack Sheridan said, “We are very pleased that Bruce and his family can put this behind them and get on with their lives.  They are heroes for standing up against discrimination.”  The terms of the settlement are confidential.  

In late 2011, the Washington State Supreme Court declined to review the December 2010 decision by the Court of Appeals granting a new trial to former Chevron truck driver Bruce Johnson.  Chevron had fought hard to get Supreme Court review having enlisted the aid of the Washington Defense Trial Lawyers Association and the Association of Washington Business to submit “friend of the court” briefs arguing for a return to the old days when employers could more easily ignore requests for accommodation by their employees by claiming they were not “medically necessary,” which was a confusing and undefined term.  The Supreme Court’s decision to deny review is a rejection of that standard and means that more Washington employees with disabilities will obtain the accommodations guaranteed by the Washington Law Against Discrimination. 

Johnson v. Chevron, 159 Wn. App. 18, 244 P.3d 438 (2010).  In December 2010, in a unanimous decision, the Court of Appeals ordered the trial court to grant a new trial in the disability discrimination case brought by Bruce Johnson against Chevron in 2008.  King County Superior Court Judge Julie Spector, the trial judge, had dismissed before trial Mr. Johnson’s main claim that Chevron failed to accommodate his back injury holding that Mr. Johnson could not show that his proposed accommodation was medically necessary.  The Court of Appeals found the trial court’s ruling to be reversible error. Also, at Chevron’s request, the trial judge erroneously instructed the jury that Mr. Johnson must prove that he was treated unfairly as compared with other workers.  The Court held that “This is not the law and the error was not harmless.”   

Jack stated, “This is a great victory for victims of disability discrimination because it clarifies two important legal issues.  First, medical necessity is not an element that needs to be proved in a failure to accommodate case.”  As the Court of Appeals said, the issue ‘is whether Johnson’s impairment had a substantially limiting effect upon his ability to perform the job such that the accommodation was reasonably necessary, or doing the job without accommodation was likely to aggravate the impairment such that it became substantially limiting.’  Second, it’s been the law in Washington since 1994 that plaintiffs can prove discrimination by showing that discrimination was a substantial factor in the adverse action. But here, the judge told the jury that Mr. Johnson additionally had to show that he was treated worse than his co-workers (called comparators), which has never been the law, and since we had not put on any comparator evidence, the outcome was predictable.”  

Those decisions at the trial level required Mr. Johnson to file an appeal and cost him more than a year waiting for justice.  Court of Appeals opinion author Judge Anne Ellington (concurrences by Judges Ann Shindler and Mary Kay Becker), did a great job in clearly stating the law and in correcting the errors below.  Mr. Johnson is ready to get this case resolved fairly in front of a new jury.  

The complaint alleges that Chevron knew Bruce Johnson had chronic back pain caused by his employment with Chevron, and did nothing to accommodate him except to send him home or place him on light duty. Chevron made no effort to work with Mr. Johnson or his physicians to find an accommodation so that he could continue on the job as a tanker truck driver. Once Chevron disallowed the use of Mr. Johnson’s requested accommodation, an ergonomic fuel hose drainer, it made no further effort to find an alternative accommodation.

A new trial is set for January 2012.

Click Here for the Court of Appeals Decision.

HANFORD WHISTLEBLOWER DR. WALTER TAMOSAITIS WINS FEDERAL APPEAL—CASE REMANDED TO TRIAL COURT FOR JURY TRIAL

November 7, 2014 Seattle, WA

Today the 9^th Circuit Court of Appeals reversed the dismissal of Hanford whistleblower Dr. Walter Tamosaitis’ federal whistleblower lawsuit against URS Energy and Construction for its complicity in removing him from his job at the Hanford Waste Treatment Plant in 2010. Bechtel National is the primary DOE contractor at Hanford and URS Energy and Construction is its main subcontractor. Dr. Tamosaitis was employed by URS. He alleges that in the summer of 2010, he opposed Bechtel’s claims that mixing issues regarding the highly toxic and radioactive sludge stored in the more than 100 Hanford tanks had been resolved. Within a few days after he voiced his opposition, he was removed from his management position at Hanford, escorted off the property, and assigned to a basement office performing no meaningful work for fifteen months. He was only transferred to an aboveground office after testifying before Congress, but still given no meaningful work.In reversing the trial court’s dismissal of his claim, the 9^th Circuit found, “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.”

In remanding the case back to the trial court, the 9^th Circuit held, that a reasonable jury could find, “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.”

Jack Sheridan, Tamosaitis’ attorney, stated, “This is a groundbreaking decision that will empower other whistleblowers working at nuclear facilities, because it recognizes that a DOE subcontractor may be held liable for doing the bidding of the DOE prime contractor when the prime contractor wants to retaliate against a whistleblower who works for the sub.” Sheridan also noted, “This is also the first appellate case recognizing that these whistleblowers get a jury trial when they go into federal court.” Sheridan says that he expects that the case will go to the jury sometime in 2015.

Click here to see Tamosaitis Amended opinion v1

Click here to see 3/17/15 9th Circuit Mandate

Richland, Washington

December 15, 2011

In December, Dr. Tamosaitis was called before Congress to testify about whistleblower retaliation at Hanford and then invited to speak about his experiences on the Rachel Maddow Show.

Click here to see excerpts from his testimony shown on the Rachel Maddow Show

On November 9, 2011,  Dr. Tamosaitis filed a federal lawsuit against DOE seeking an injunction to prevent DOE from automatically siding with contractors who retaliate against whistleblowers. Sheridan said, “The contractors claim attorney client privilege with DOE in whistleblower litigation.  How can DOE provide oversight if they are helping the contractors defend?” Also named is URS, his employer. Dr. Tamosaitis is asking the federal judge to order URS to return him to a position of leadership and responsibility at the Vit Plant.   Sheridan stated, “The reason that DOE is in this lawsuit is because we allege its managers supported or even initiated the removal of Dr. Tamosaitis from the Waste Treatment Plant (“WTP” or or Vit Plant) and participated in the decision to prevent his return. Plaintiff seeks money damages from URS.

A separate lawsuit is proceeding forward in state court in Benton County against Bechtel for intentionally interfering with his relationship with URS by participating in the decision to terminate him from the WTP.  That case is set for trial in May 2012.Dr. Tamosaitis was removed from his position at Hanford, escorted off the Hanford property, and is currently assigned to a basement office performing no meaningful work. His complaint alleges that just before his removal, he called into question whether Bechtel met a contract milestone that resulted in a multi-million dollar bonus. Emails recently obtained from URS in pretrial discovery show that on July 1, 2010, a day after Bechel claimed the work was done supporting the bonus, DOE Manager Dale Knutson, was in discussions with Bechtel Manager Frank Russo in which Russo criticized Dr. Tamosaitis’ concerns over the WTP. Russo wrote, “Walt is killing us.” See email exchanges below. In response to an email written by Dr. Tamosaitis discussing his concerns about WTP, Knutson wrote to Russo,

“If this shows up in the press we will be sticking to our previous comment . . . Deliberate haste will be our approach.” Bechtel and URS were hired by the DOE to design and build the Hanford Waste Treatment Plant, which will be an industrial complex of facilities for separating and vitrifying (immobilizing in glass) millions of gallons of high-level nuclear tank waste stored in 177 large underground tanks on the Hanford site.DOE has stated that it intends to begin building the plant before the design is completed to meet time goals. Mr. Tamosaitis is investigating whether the “deliberate haste” is related to this DOE approach.

Vitrification technology involves blending the high-level nuclear tank waste with glass-forming materials and heating it to over 2,000 degrees Fahrenheit. The mixture is then poured into stainless steel canisters to cool and solidify. In this glass form, the high-level nuclear tank waste is currently considered stable and impervious to the environment, and its radioactivity will dissipate over hundreds or thousands of years.

Dr. Tamosaitis was removed from Hanford on July 1, 2010.  In a July 28, 2010 email exchange between WTP Manager Russo, and Bechtel National President David Walker (Russo’s boss), and Bechtel Parent Company President J. Scott Ogilvie, they reveal close communications and cooperation with DOE managers on what they call the “WTP Tamosaitis event.”  In one email, Walker confirms that he spoke with DOE manager Ines Triay about the “Tamosaitis event.”  According to Walker, Triay said, “we will manage through the technical issues and DNFSB investigation part satisfactorily although at cost of significant disruption/time etc.” She went on to say that they “Need to be sure ‘Hill’ gets covered and protect the $50 million.” See July 28, 2010 email exchange below.  In his deposition, Russo confirms the names of the DOE officials involved, that the Hill is Capitol Hill, but he attributes the “protect the $50 million” comment to his boss, David Walker.  See Russo deposition excerpts below.

Russo confirmed that the concern about the money was related to Dr. Tamosaitis (see Russo page 324-325 below):

Q. (By Mr. Sheridan) All right. But — but it’s true, is it not, that you had some concerns that the $50 million — that Dr. Tamosaitis’ conduct may in some way jeopardize the 50 million?

A. He had some concerns.

Q. Your boss?

A. (Nods head.) Yes.

Although BNI and URS claim that Dr. Tamosaitis was being reassigned to a position off the WTP, plaintiff has obtained an announcement dated July 1, 2010, showing that hours before he was removed from the WTP, management drafted and circulated an announcement showing that “Dr. Walt Tamosaitis will manage this group to be staffed by members of the existing R&T organization in alignment with scope completion.” See below, July 1, 2010 email on reassignment.

On June 13, 2011,  the Defense Nuclear Facilities Safety Board (“DNFSB”) released a report analyzing the failures in the safety culture at Hanford, which is operated by the Department of Energy (“DOE”).  The report documented the removal of Dr. Tamosaitis from the Hanford site by Bechtel and URS after he raised technical and safety concerns and called upon DOE Secretary Chu to “conduct a non-adversarial review of Dr. Tamosaitis’ removal and his current treatment by both DOE and contractor management and how that is affecting the safety culture at WTP.”

The report made two major findings:

• There is a “chilled atmosphere adverse to safety” at Hanford in which employees are afraid that they will be punished if they raise safety concerns; and
• DOE and its contractors at Hanford (here Bechtel and URS)  “suppress technical dissent.”

Click here to view Federal Complaint
Click here to view Appendix to Federal Complaint
Click here to view excerpts from Russo Deposition
Click here to view July 28, 2010 email exchange: “DOE can’t be seen as involved.”
Click here to view July 1, 2010 email attaching announce showing Dr. Tamosaitis will be assigned to new WTP project.
Click here to view copy of DNFSB Report on DOE
Click here to view copy of “Walt is killing us” email string with DOE comment
Click here to view copy of email string between Russo and Knutson stating, “I directed URS to get Walt out of here 2 weeks ago. . . .”
Click here to see DOE Knutson Declaration
Click here to view a copy of the complaint filed in Benton County Superior Court.
Click here to view a copy of the broadened DOL complaint which is being investigated by OSHA.
See media coverage:

Listen to Northwest Public Radio Report Here

See KEPR TV Report Here

• New York Times Article
• Tri-Cities Herald article on DNFSB Report
• Seattle Times article on DNFSB Report
• Tri-Cities Herald
• The Bellingham Herald
• Seattle Times: No proof Hanford mixers will work
• 12/16/10 Tri-City Herald Article
• Tri-City Herald Article
• KNDO Article and Video
• KPLU Radio
• Another Tri-City Herald Article
• Seattle Times
• For more stories, google: Tamosaitis Hanford

Click below to see a copy of the 50 Item Issue List that Dr. Tamosaitis brought to the July 1, 2010 meeting with Bechtel and URS managers (discussed at pages 19-20 of civil complaint above) just one day after Bechtel claimed that it met its June 30, 2010 contract requirements to earn a $6 million fee.  On July 2, 2010, his Hanford badge was pulled, his blackberry was confiscated, and Dr. Tamosaitis was escorted off the Hanford premises.  Now he shares a basement office with two copying machines and has been assigned no meaningful work.

Dr. Tamosaitis’ July 1, 2010 50 item issue list

Click here to see Bechtel email string from April 2010 acknowledging that if they fail to close the M3 issue by June 30, 2010, they will lose 80% of Bechtel’s fee.

Click here to see DOE contract provision warning of need to close M3 issue or risk forfeiture of 80% of fee due on June 30, 2010.

Tom Carpenter and the Hanford Challenge are working with Jack to provide support and to make sure Walt’s story is told in the halls of Congress and in the media.