Another Case of Whistleblower Retaliation: This Time at Lawrence Livermore National Laboratory

Editor’s Note: Coincidentally, as La Jicarita prepared to post this story about Anthony Rivera’s whistleblower claim against Lawrence Livermore National Security (LLNS), which governs Lawrence Livermore National Laboratory, the 129 Lab workers who were laid off in 2008 were awarded $32.25 million in the settlement of their lawsuit against LLNS. In a press release, lead attorney for the Lab workers, Gary Gwilliem, had this to say: “As soon as the Lawrence Livermore National Lab was ‘privatized’ by the George W. Bush administration in 2007, they began plans to lay off their older, most experienced workers in order to save themselves money. The evidence proved that this layoff was organized and implemented primarily by the Bechtel Corporation, of the LLC who took over the Lab. There had not been a layoff there for 35 years before then.”

According to client Michael McElfresh the struggle with the lab and its governing body LLNS was a long one: ‘‘LLNS  used every legal tool they could to drag this out and wear us down. . . They of course did this at great expense to the taxpayer and will likely suffer no financial consequences for their behavior.’’

By KAY MATTHEWS

imageAnthony Rivera has deep ties to New Mexico. His parents are native New Mexicans, and while he grew up in California, he moved back to New Mexico to get his degree in electronics at UNM. At the university Anthony met his wife Edna, born in Belen, NM, and they were married in 1982. While still in college he got a cooperative job at Sandia National Laboratory in Albuquerque, and in 1984 went to work for one of the nuclear labs based in California, Lawrence Livermore National Laboratory (LLNL). In 2013, after 29 years of employment, he was fired by the new contractor of the Lab, Lawrence Livermore National Security (LLNS) after revealing safety and management abuse issues to Lab managers. In January of 2014 he filed a Department of Energy (DOE) 708 Whistleblower complaint against LLNS, which alleges LLNS retaliation for his complaints. DOE Secretary Ernest Moniz is currently reviewing Rivera’s whistleblower complaint.

Sound familiar? La Jicarita has covered whistleblower lawsuits filed by fellow New Mexicans Chuck Montaño and Joe Gutierrez against Los Alamos National Laboratory (LANL) and Los Alamos National Security (LANS), the lab contractor. Both of these lawsuits were settled: Chuck wrote a book about his ordeal, Secret Colony, Hidden Truths: A Whistleblower’s Diary, and Joe has been working on his own book for years. Anthony Rivera is currently unemployed while he awaits review by Secretary Moniz.

According to Rivera’s October 24, 2014 “Affidavit in Support of Petition of Secretarial Review,” his troubles with LLNL began as far back as the 1990s when he raised minority employment concerns. As reported in numerous California newspapers, in 1992 he served as the principal spokesperson for a multiracial organization of about 40 African American, Asian Pacific Islander, Hispanic, and Native American employees called the Association of Ethnic Minorities (AEM). This group advocated correction of systemic problems that caused employment disparities among nonwhite LLNL employees. “Our AEM concerns drew attention in the media and on Capitol Hill, and from then on I was subject to chronic retaliation by lab management . . . through my 2013 dismissal.”

This, too, sounds very familiar. Chuck Montaño and Joe Gutierrez were both involved in minority rights organizations along with their job-related complaints and whistleblowing actions. Chuck was one of the founders of the Hispanic Round Table at LANL, which monitored and lobbied for minority equity, and Joe Gutierrez was a member of the Pajarito Plateau Homesteaders Association, which sought compensation for homesteaders’ lands seized by the government to establish LANL in the 1940s.

In the early 2000s Rivera was responsible for correctly identifying a dangerous, unintentional high power laser initiated, High Explosive detonation scenario not addressed in the High Explosive Applications Facility (HEAF) Safety Procedures documentation. This safety concern was reviewed and subsequently included in the HEAF Safety Procedures. Prior to Rivera’s operational procedure correction, HEAF experimenters and technicians could have been exposed to High Explosive material subject to a time delayed explosive detonation causing injuries or fatalities.

In 2007 Rivera initiated a LLNL “Work Stop” for what he believed to be another imminent and potentially lethal threat to employees in HEAF. At the time Rivera had voluntarily moved from HEAF to another division at LLNL and became concerned about the qualifications of the employee who was hired to replace him in HEAF.

Before leaving his HEAF assignment in 2006 and accepting a lateral position at the National Ignition Facility, Rivera offered to review his LLNS B-Division funded assignment in HEAF with the employee who was hired to replace him. In 2007, as promised, Rivera had a meeting with this new HEAF employee.

According to Rivera, the employee was unqualified to work on potentially lethal high voltage, high energy Flash-Lamp Bank hardware that might place multiple employees in direct harm to electrocution. After numerous attempts by Rivera to have this safety concern addressed at a lower level with LLNS Manager “A”, this manager forced a subordinate employee, the Responsible Individual for this set of High Voltage, High Energy diagnostics, to accept and “add” the unqualified employee to the Integrated Work Sheet (IWS) paperwork without delay. The IWS is a project specific document that identifies a project’s purpose, procedures, hazards, and qualified employees approved by the IWS author and Responsible Individual.

Rivera then provided the 2007 “Work Stop” documentation to the NNSA Livermore Field office Employee Concerns Program Manager that detailed LLNL employment job posting fraud and the negligent assignment of an employee without the “Skills, Knowledge, and Abilities” to perform the job safely or effectively. LLNS Manager “A”, author of the job posting and responsible for creating that dangerous 2007 scenario, was subsequently promoted to a position of greater authority within Engineering.

While working in the National Ignition Facility, Rivera filed another complaint in 2011 with the Office of Federal Contract Compliance Programs (OFCCP), a division of the Department of Labor (DOL), stating that LLNS management had failed (again) to properly post a National Ignition Facility related supervision job in his division. On March 18, 2012 the OFCCP stated, “…Violation – LLNS did not ensure its policies, practices and procedures were implemented when it filled the Acting Supervisor position on May 20, 2011, so that all qualified applicants and employees are receiving equal opportunity for selection advancement as required by the regulations set forth at 41 CFR 60-2.10 (a) (2) and (3)”.

In September of 2012, six months after the OFCCP identified the LLNS violation, Rivera’s National Ignition Facility assignment “went away.” According to Rivera, LLNS Manager “A” played a significant role in this job loss and also in the decision to place Rivera into an Employee In Transition and Employee Between Assignments status. Both of these are essentially job “floater” identifications and employees are paid by an umbrella account instead of a specific program. Rivera also believes LLNS Manager “A” was in part responsible for his employment dismissal from LLNS in October of 2013.

For part of 2013, Rivera had a funded programmatic assignment with the Joint Actinide Shock Physics Experimental Research (JASPER) program to author the design parameters for a future Flash-Lamp Bank for JASPER related experiments. The JASPER Project Manager recognized Rivera as the Pulsed Power “Subject Matter” expert on the Flash-Lamp Bank design documentation. JASPER funding at the time was limited, but the Project Manager deemed Rivera’s design efforts to be important enough to fund. Rivera points out that the unqualified employee referenced in the 2007 “Work Stop” was in fact on the 2013 JASPER payroll but was not assigned by JASPER Project Management to perform the task assigned to Rivera.

La Jicarita asked Rivera to briefly summarize the safety concerns he raised to LLNS management in 2012 and 2013 that became part of DOE complaint that identifies LLNS abuse of authority and mismanagement.

Safety Concern 1

Rivera submitted an engineering proposal to mitigate a liquid mercury spill hazard within HEAF. The mercury was housed in two glass-lined High Voltage Ignitrons (Ignitron model NL-7171 is a high voltage switch capable of discharging up to 15,000 volts and 35,000 amps and is used in high voltage and pulsed power applications); Rivera called for replacing the liquid mercury with spark gap switches. The LLNS Environment, Safety and Health Team supported Rivera’s proposal, acknowledging the potential impact of a liquid mercury spill on site or en route to other sites. Rivera’s Employee in Transition (ETA) and Employee Between Assignments (EBA) manager denied his mitigation request, calling it “an improper use of funds.” The ETA/EBA manager based this decision on the fact that during the last year of his employment Rivera was a “floater” on the overhead account, and the HEAF program wasn’t paying his salary.

In doing so, the ETA/EBA manager ignored the Environment, Safety, and Health Team’s endorsement of Rivera’s liquid mercury hazard mitigation proposal and its institutional value as defined in the ETA/ EBA guidelines. The year before, a comparably sized Ignitron with glass encapsulated liquid mercury was broken in the National Ignition Facility office building 482. This mercury spill caused an immediate disruption of work: building 482 controlled access doors were wedged open to air out the building, the impacted area was taped off, and the cleanup included cutting out several large pieces of carpeting along the greater than 75 foot liquid mercury spill trail both inside and outside the building.

Safety Concern 2

Rivera proposed a procedure to HEAF management to prevent reoccurrence of the HEAF 10kg Tank’s 12” diameter port glass window blow-out that sent explosively driven glass shrapnel and experimental debris into the HEAF facility in 2013. Rivera said his National Ignition Facility Division Managers reprimanded him for communicating his suggestions to HEAF Management. Months later, in a California Unemployment Insurance Appeal Board Hearing (discussed below), one of Rivera’s National Ignition Facility Division Managers told the Judge,“… Anthony was being, being ah, by their characterization fairly aggressive in, in trying to help them with problems that they really didn’t want help with…”. Rivera said such a statement is in gross conflict with the DOE/Lab employee guidance of “…maintaining a questionable attitude about worker safety and health….”

 Safety Concern 3

Rivera was given an Employee In Transition and Employee Between Assignments assignment in the LLNL B327 “Non-Destructive Test” X-Ray Facility. Here Rivera reported safety concerns (confirmed by another LLNS employee) where numerous X-Ray source rooms are located side by side. Rivera said the X-Ray safety procedures, documentation, and electrical schematics were found to be subpar, inconsistent, or missing. In contrast to the DOE/Lab employee guidance of maintaining a questionable attitude about worker safety and health, LLNS management told Rivera this was not what he was assigned to do. Rivera said the B327 safety issues were ignored by LLNS and the NNSA Livermore Field Office long after he was dismissed.

Rivera reported these B327 safety concerns to the DOE Office of Hearings and Appeals investigators and to the DOE Inspector General. The NNSA Livermore Field Office elected not to contact Rivera or the other LLNS employee witness before closing the case. Learning of this, Rivera contacted a Senior Manager at NNSA Headquarters. Within 48 hours, the NNSA Livermore Field Office contacted the LLNS employee witness who communicated essentially the same set of B327 safety and retaliation concerns.

If all of this wasn’t concern enough, Rivera had a LLNS Human Resources approved Family and Medical Leave Act (FMLA) to care for his wife through December 31, 2013, while she recovered from breast cancer and radiation treatment. His wife’s recovery was compounded by her existing muscular dystrophy condition. When Rivera notified the LLNS Senior Staff Relations Attorney of his FMLA approval, on August 16, 2013 the Staff Relations Attorney replied, There is no need for me to retain the FMLA designation form or the accompanying medical certification that you sent with your email so I have removed the attachments and deleted them from my computer.”

Rivera’s Human Resources approved FMLA through December 31, 2013 was of no concern to the LLNS Staff Relation Attorney and would not be a deciding factor in what was to occur just one month later.

On September 17, 2013, Rivera asked a high level NNSA Livermore Field Office Manager “B” for direct assistance regarding his concerns with LLNS management over the previous 12 months. Specifically, Rivera asked “… how does the NNSA LSO Field Office ensure the thoughts and opinions of LLNS employees are properly collected, measured, and assessed within the context of the LLNL “Performance Evaluation Report” contract renewal process …?”

Three days later, on September 20, 2013, Rivera was escorted out of LLNL on a for cause “intent to dismiss” memorandum based on alleged poor performance and poor conduct. In October 2013 Rivera was officially “dismissed” (fired).

Rivera supported Lawrence Livermore National Laboratory missions over a 29 year career. He stated to La Jicarita that the violations of his approved FMLA to help his wife and the treatment leading up to his dismissal were “unjustified, cruel, and callous acts by LLNS management. In DOE ‘whistleblower’ terms, they were contractor abuses of authority and mismanagement.”

Rivera applied for California unemployment benefits after he was “dismissed.” LLNS management contested Rivera’s eligibility for unemployment benefits based on the allegation he was dismissed “for cause.” Rivera appealed this ineligibility determination before the California Unemployment Insurance Appeal Board Judge. The presiding Judge ruled: “…The employer has not sustained its burden to show that the claimant’s conduct was willful or wanton under the circumstances and therefore has not shown misconduct. Accordingly, the employer discharged the claimant for reasons other than misconduct….” The Judge reversed the earlier decision and awarded Rivera California unemployment benefits.

In January of 2014 Rivera submitted a complaint to the Department of Energy Office of Hearings and Appeals (OHA), under 10 Code of Federal Regulations Part 708, Whistleblower’s complaint, alleging retaliation for his disclosures of gross mismanagement, gross waste of funds, and abuse of authority. Rivera was notified that his 708 complaint was accepted, it would be investigated, and that a hearing would be conducted on the merits. An initial investigator conducted interviews with Rivera, but as the case dragged on the first investigator was replaced by a second one.

During the second investor’s review, Rivera learned the LLNS Staff Relations attorney provided false information to the OHA regarding the set of LLNS managers involved with his 2007 initiated “Work Stop.” Regarding the 2007 managers directly involved with the 2007 “Work Stop”, on August 12, 2014 the LLNS Staff Relations attorney stated those managers,“…are no longer at the Laboratory or had no involvement with his present complaints….”

 According to Rivera, most of the managers directly involved with the 2007 “Work Stop” were employed at the Laboratory and some were subsequently promoted. When Rivera asked the OHA investigator, “What are the disciplinary or punitive consequences for a contractor under a 708 review if it can be proven that the contractor either lied or deliberately left out information with case relevance?” the OHA Investigator replied, “There are not any disciplinary consequences for that.”

The second investigator cancelled the investigation and told Rivera that there would be no hearing, which violates the mandates of 10 CFR 708. After months of inaction, Rivera hired an attorney, Anthony Bothwell on May 21, 2015, who filed a Notice of Representation to appear as counsel of record.

Rivera’s appeal now sits in the office of the DOE Secretary, the last step in DOE 708 Whistleblower’s process. The Secretary could order either reinstatement and compensatory damages or that OHA conduct an investigation and hearing on the matter.

Rivera’s main concerns, however, reside in the numerous systemic failures revealed in the DOE OHA whistleblower’s process he, and others like Montaño and Gutierrez, have experienced. In his October 24, 2014 affidavit he states: “The DOE Contractor Employee Protection Program designed to protect ‘whistleblowers’ from reprisals is not adequately structured or administered to carry out its stated objective. My first hand experiences suggest DOE/NNSA implementation of DOE ‘whistleblower’ policy actually enables and protects abusive and unlawful Contractor employment practices. The DOE defined objective assessment and oversight responsibilities of the NNSA Livermore Field Office(LFO) were not applied in my case. This memorandum and the documents referenced indicate the NNSA LFO and the contractor LLNS, have in practice, administratively fused together.”

In particular, Rivera believes that NNSA Livermore Field Office Manager “B” was a “government official who had responsibility for the oversight of the conduct of operations” at LLNL but failed to act in an objective and impartial manner; this was a contributing factor to the abuse he received by LLNS management, including his wrongful termination in 2013.

Regarding objective and impartial NNSA Field Office oversight, Rivera recently wrote to the DOE Director Office of Enforcement stating:“One would assume all safety guidelines, expectations, and accountability defined in the Office of Enforcement documentation would not provide exemption in any form to NNSA Field Office Staff within the Complex. That being said, there is no specific mention in the Office of Enforcement policy identifying NNSA Field Office personnel being held accountable to the same set of safety metrics or conduct standards clearly defined for the contractors. Why?

 If the MOU between the NNSA and EA [Office of Enterprise Assessments: a safety and security enforcement program established by the Secretary of Energy] does not explicitly describe accountability symmetry between the contractor and their NNSA Field Office Staff, it would present an avenue for unaccountable abuse by the NNSA Field Office on behalf of the contractor in question.”

 Rivera’s affidavit states the NNSA Livermore Field Office Manager “B”, in response to a DOE Inspector General request to review Rivera’s HEAF safety concerns, was to send a December 5, 2013 memo to NNSA Headquarters Director Internal Affairs that stated, “…based on an internal review of the subject allegation, I have no basis to require any additional action….”

 Attached to NNSA Livermore Field Office Manager “B”’s memo, is another memo dated December 2, 2013 from NNSA Livermore Field Office Manager “C” that states, “…I met with the LLNS Staff Relations Specialist and she related an extensive description of the events surrounding Mr. Rivera’s termination from employment. I find her description of events to be credible…. It seems questionable that an employee who never had job responsibilities at HEAF would be in a position to assess and report on safety problems there….”

In contrast to what NNSA Livermore Field Office Manager “C” stated in this December 2, 2013 memo, Rivera worked in HEAF for 16 years (1990-2006) and worked again in HEAF in 2013 in support of the JASPER program. Rivera believes this and many other examples show a NNSA Livermore Field Office pattern of DOE Office of Enforcement defined “willful misrepresentation” and contractor bias on matters of safety and retaliation.

According to Rivera, “Many positions within DOE have a stated consequence for error component. I would say the consequence for error regarding environmental and safety concerns like those at WIPP in New Mexico and other Labs in the Complex can be very high. Therefore, the threshold for disqualification from high consequence assignments based on past workplace willful misrepresentations should be appropriately set low. If not, what safety message is DOE sending?”

He added, “Whether it occurs at LANL or LLNL, a DOE whistleblower complaint of safety, abuse of authority, or mismanagement generally describe an institution wide or systemic failure to internally address the matter.” In Rivera’s case, the managers involved range from division level, Human Resources, to the most senior positions within LLNS. Rivera said he made sincere attempts to resolve matters in his complaint directly with LLNS management “at the lowest level” before raising the issues outside of LLNS.

La Jicarita asked Rivera if he believes that the discriminatory LLNS management practices at Livermore to which he has been subjected are comparable to those used by Los Alamos National Security (LANS) at LANL against whistleblowers.

Rivera said he never worked for LANS, but believes it very unlikely LANS and the NNSA Los Alamos Field Office are operating under materially different safety and environmental guidelines and likely share the same “tool box” of employee retaliation techniques described in his affidavit to the DOE Secretary. The set of LANS and LLNS corporate elements are nearly the same.

One LLNS retaliation technique Rivera describes in his affidavit is that the LLNS Dismissal Review Board’s meetings, review of materials, and testimony are done in secret. He said, “The Dismissal Review Board is defined by LLNS as an exclusive ‘tool of Senior Management’ ”. Rivera said the Dismissal Review Board process can serve to circumvent DOE defined “causal link” retaliation detection from the employee and the DOE Office of Hearings and Appeals investigators. This “tool of Senior Management” is not identified or defined in the LLNS employee handbook.

Referring to a September 5, 2015 New Mexico AP story on LANL hazardous waste permit violations Rivera said, “When LANS and the NNSA Los Alamos Field Office jointly state, “Our staffs have completed a technical evaluation of these non-compliances and concluded that they do not present a credible safety concern to workers or the public and do not pose a threat to human health or the environment,” I would be compelled to ask what is precisely meant by “Our staffs.” Was the end conclusion based on in-depth, rigorous, and independent parallel reviews?”

Rivera said he has serious concerns with the business practices of LLNS and the NNSA Livermore Field Office in California: “The question for New Mexico is, do LANS and the NNSA Los Alamos Field Office have a track record of transparency, and do they present two credible and independent DOE entities measured not by written description, or self-promotion, but by their actions and performance to date?”

With DOE Complex wide concern, Rivera wrote in his affidavit to the DOE Secretary, “…I believe DOE contractor worker trust is lost regarding purported worker protections and ‘zero tolerance’ for retaliation. Knowledgeable DOE contractor employees are now conditioned to keep their collective ‘heads down’ and will not report contractor issues for fear of direct career blowback. If the lack of employee trust goes unaddressed, it will likely lead to a New Mexico WIPP —$500 million type disaster, or a similar accident….” and “…In a transparent and retaliation free work environment, there are thousands of experienced DOE Contractor employees that you can leverage to help keep our DOE Laboratories and other DOE Facilities safe and operationally efficient….”

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