FILED
NOT FOR PUBLICATION
DEC 12 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICHARD L. NELSON, No. 15-73548
Petitioner, ARB Case No. 13-075
Department of Labor
v.
U.S. DEPARTMENT OF LABOR, MEMORANDUM*
Respondent,
ENERGY NORTHWEST,
Respondent-Intervenor.
On Petition for Review of an Order of the
Department of Labor
Submitted December 8, 2017**
Seattle, Washington
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Page 2 of 3
Before: TALLMAN and WATFORD, Circuit Judges, and BENITEZ,*** District
Judge.
1. The Administrative Review Board (ARB) properly affirmed the
Administrative Law Judge’s (ALJ) dismissal of Richard Nelson’s claim under the
Energy Reorganization Act, 42 U.S.C. § 5851. Section 5851 “protects energy
workers who report or otherwise act upon safety concerns.” Sanders v. Energy
Northwest, 812 F.3d 1193, 1196 (9th Cir. 2016). Nelson’s retaliation claim rests
on a catch-all provision, which protects employees who participate “in any other
action to carry out the purposes of” the Act. 42 U.S.C. § 5851(a)(1)(F).
To establish a prima facie case of retaliation, Nelson must show that: (1) he
engaged in a protected activity; (2) Energy Northwest knew or suspected that he
engaged in the protected activity; (3) he suffered an adverse action; and (4) the
circumstances were sufficient to raise the inference that the protected activity was a
contributing factor in the adverse action. Sanders, 812 F.3d at 1197. Nelson
argues that his participation in a “security investigation,” in which he refused to
confirm Energy Northwest’s accusations of wrongdoing, constitutes protected
activity under the Act. We find that argument unpersuasive.
***
The Honorable Roger T. Benitez, United States District Judge for the
Southern District of California, sitting by designation.
Page 3 of 3
Conduct within the scope of the Act’s protection must have “a sufficient
nexus to a concrete, ongoing safety concern.” Id. at 1198. Here, Energy
Northwest’s investigation was primarily concerned with internal reports of
improper per diem practices and unauthorized travel expenses, not safety or
security issues. Substantial evidence supports the ALJ’s conclusion, as affirmed
by the ARB, that Nelson never raised a safety or security issue during the
investigation. Nelson’s conduct was therefore not protected activity under the Act.
Because Nelson did not engage in protected activity, we need not address the
other elements of his retaliation claim. The ARB properly affirmed the ALJ’s
dismissal of his claim.
PETITION FOR REVIEW DENIED.