In October of 2015 La Jicarita published Anthony Rivera’s story of retaliation by his employer, Lawrence Livermore National Laboratory, when he raised issues of work place safety violations. After making every effort to have his concerns addressed through the administration process at the Laboratory, he filed a Department of Energy (DOE) 708 Whistleblower complaint in January of 2014 against Lawrence Livermore National Security (LLNS), which managers the Laboratory. After a year of waiting for DOE Secretary Ernest Moniz to review Rivera’s whistleblower complaint, he filed a lawsuit on January 19 against the LLNS and two Department of Energy officials, Kimberly Davis Lebak and Shiwali Patel, who he claims were directly involved in the Lab’s failure to address his concerns. Davis Lebak transferred from Lawrence Livermore in 2014 and currently holds the same job she held at Livermore—DOE/National Nuclear Security Administration Field Office Manager—at Los Alamos National Laboratory.
In a related matter, Nuclear Watch New Mexico announced on January 20 that it intends to file a lawsuit against the DOE and Los Alamos National Laboratory (LANL) over its failure to meet the cleanup requirements established under the Consent Order governed by the New Mexico Environment Department. Nuke Watch is represented by the New Mexico Environmental Law Center and intends to file its lawsuit within 60 days or less. To read more about the planned action you can go to the Nuke Watch website.
Rivera’s official press release is copied below as well as the full text of the complaint.
LAW OFFICES OF ANTHONY P. X. BOTHWELL
950 Lincoln Blvd. #29547, San Francisco, CA 94129
Contact: Atty. Tony Bothwell
Tel. (415) 370-9571
ADVANCE FOR RELEASE A.M. TUESDAY, JAN. 19, 2016
WHISTLEBLOWER CLAIMS $5 MILLION AGAINST NUCLEAR WEAPONS LAB
Anthony T. Rivera, an award-winning senior engineer who blew the whistle on safety violations at Lawrence Livermore National Laboratory, sued the lab Tuesday morning in U.S. District Court in San Francisco. His suit seeks $5 million in damages – and a court order reforming U.S. Department of Energy practices.
Rivera, a 29-year employee with Lawrence Livermore National Laboratory, charges Lawrence Livermore National Security LLC is liable for wrongful termination in violation of public policy because managers fired him after he disclosed safety violations in the lab’s high explosives test facility and alleged mismanagement.
His suit also seeks damages against two U.S. Department of Energy officials – Kimberly Davis Lebak, the DOE/NNSA site manager at Livermore in 2013, and Shiwali Patel, a DOE Office of Hearings and Appeals investigator who refused to investigate Rivera’s claims.
The suit says Lebak and Patel punished Rivera for exercising his First Amendment freedom of speech when he complained of unsafe practices and management misdeeds.
Citing the Administrative Procedures Act of 1789, Rivera also asks the court to order DOE’s National Nuclear Security Administration and its Office of Hearings and Appeals to reform their operations so as to protect whistleblowers in practice.
Lawrence Livermore National Security LLC manages the principal U.S. nuclear arms lab.
Rivera is represented by Atty. Tony Bothwell of San Francisco.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
ANTHONY T. RIVERA,
Plaintiff
v.
LAWRENCE LIVERMORE NATIONAL
SECURITY LLC; SHIWALI PATEL;
KIMBERLY DAVIS LEBAK; NATIONAL
NUCLEAR SECURITY ADMINISTRATION
and OFFICE OF HEARINGS AND
APPEALS, DEPARTMENT OF ENERGY,
UNITED STATES OF AMERICA,
Defendants
________________________________
I. INTRODUCTION
1. This is an action by Anthony T. Rivera against Lawrence
Livermore National Security LLC, for wrongful discharge in
violation of public policy; against Kimberly Davis Lebak and
Shiwali Patel, for violation of First Amendment freedom of
speech; and against the National Nuclear Security Administration
and the Office of Hearings and Appeals, United States Department
of Energy, for violation of due process.
3:16-cv-304
II. JURISDICTION
2. Jurisdiction is invoked pursuant to U.S. Const., Art. 3,
Sect. 2, on the ground that this is a case in law or equity
arising under the laws of the United States.
III. VENUE
3. In conformance with 5 U.S.C. § 552(a)(4)(B), venue lies in
the Northern District of California, where parties including
Plaintiff Anthony T. Rivera (RIVERA) and Defendant Lawrence
Livermore National Security LLC (LLNS), have their residence or
principal place of business.
IV. PARTIES
Plaintiff
4. Anthony T. Rivera (RIVERA), plaintiff, is an individual who
resides in the Northern District of California.
Defendants
5. Lawrence Livermore National Security LLC (LLNS), defendant,
is a partnership of the University of California, Bechtel
National, Babcock and Wilcox, the Washington Division of URS
Corporation, and Batelle. LLNS is the contractor responsible for
managing Lawrence Livermore National Laboratory (LLNL), the
nation’s principal nuclear research and development facility,
for the U.S. Department of Energy (DOE).
Case 3:16-cv-00304 Document 1 Filed 01/19/16 Page 2 of 13
6. Shiwali Patel (PATEL), defendant, was at all times relevant
to this complaint an investigator employed by the Office of
Hearings and Appeals (OHA), U.S. Department of Energy (DOE).
7. Kimberly Davis Lebak (LEBAK), defendant, was at all times
relevant to this complaint an employee of DOE’s National Nuclear
Safety Administration (NNSA). She was NNSA’s site manager
overseeing LLNS at the national laboratory, LLNL.
8. The National Nuclear Security Administration (NNSA), a
component of DOE, a federal agency, oversees the contractor
management of LLNL.
9. The Office of Hearings and Appeals (OHA), a component of
DOE, is responsible for investigating, conducting hearings, and
issuing decisions on whistleblower retaliation complaints of DOE
employees and contractors pursuant to 10 C.F.R. Part 708.
V. RELATED MATTERS
10. RIVERA does not have knowledge of any other pending case
arising from the same body of facts as are alleged in this case.
VI. FACTUAL ALLEGATIONS
11. Plaintiff Anthony T. Rivera (RIVERA), an award-winning
senior engineer, was employed at Lawrence Livermore National
Laboratory (LLNL) for 29 years.
12. For many years RIVERA was an advocate for the right of
employees at LLNL to have a working environment that is fair as
well as safe.
13. On September 27, 2012 RIVERA received notification that
funding for his job “went away.”
14. RIVERA believed a substantial and specific danger to
employees’ health or safety existed because Roberto Ruiz, a
Materials Engineering Division (MED) Superintendent who had no
known electrical qualifications, was functioning as a “safety
manager” for the “120 VAC interlock” assignment (referencing 120
voltage alternating current).
15. RIVERA on October 2, 2012 performed his ethical duty as a
credentialed engineer to order a “work pause” so as to remove
the apparent danger to fellow employees.
16. That day, RIVERA reported the “work pause” to Dan Nikkel
(Nikkel), the MED deputy division leader, and in addition
explained the “work pause” to Lisa Tarte (TARTE) on October 2
and October 4, 2012.
17. In a letter to RIVERA on October 5, 2012, Laser Systems
Engineering and Operations (LSEO) Division Leader Mark A. Newton
(NEWTON) falsely claimed that TARTE had told RIVERA that the
“120 VAC interlock” circumstances “do not merit a safety work
pause.”
18. On October 5, 2012, RIVERA was converted to transitional
employee, having no specific job assignment.
19. On October 6, 2012 RIVERA was denied access to LLNL,
prevented from going to the workplace.
20. A Letter of Warning by NEWTON on October 17, 2012 falsely
charged that RIVERA was “unprofessional” and “insubordinate”
because he asked for a written job description and requested
that counsel be present for a particular meeting.
21. A March 15, 2013 notice of five-day suspension for alleged
“misconduct and poor performance,” unsupported by facts, was
issued against RIVERA.
22. It appeared to RIVERA that grossly unjust management acts
constituted abuse of authority.
23. On November 14, 2012 RIVERA complained to Staff Relations
Division Leader Bob Perko (PERKO) about mismanagement including
the September 27, 2012 notification that funding for RIVERA’s
job “went away,” October 5, 2012 conversion to transitional
employee, October 6, 2012 denial of access to LLNL, and an
unwarranted October 17, 2012 letter of warning.
24. RIVERA complained to Staff Relations Representative Kathryn
Craft Rogers (ROGERS) on March 8, 2013 about a March 5, 2013
Notice of Intent to Suspend (5-Day) that accused him of
insubordination and misconduct because he questioned the use of
an LLNL account and sought medical advice related to the working
environment.
25. RIVERA made disclosures to LSEO Superintendent Ron Darbee
DARBEE) on 9/16/13 concerning “a safety concern” about port
glass failure in the High Explosive Application Facility (HEAF).
26. HEAF is the test facility at LLNL where the nuclear weapons
laboratory detonates non-nuclear explosive devices.
27. RIVERA cited “legitimate safety and quality concerns in
HEAF,” noting that the port glass failure was the fourth
incident at HEAF Site 300 in six months.
28. RIVERA’s September 16, 2013 disclosure included reference
to an e-mail that RIVERA sent to Dimitri Voloshin (VOLOSHIN)
discussing whether “the 10kg tank port glass failure was due to
an over pressure/fatigue” or “due to shot ‘debris’” and alluding
to “default” an “an ‘opt out’ of the debris shield requirement.”
29. VOLOSHIN, the lead electrical engineer for HEAF, understood
that the technical failure and incidents at HEAF implicated
substantial safety concerns or threats to public health or
safety.
30. DARBEE also was or should have been aware of the substantial
safety implications of the HEAF incidents.
31. LLNS officials were also aware of RIVERA’s protected
disclosures concerning other safety violations at the national
laboratory – in addition to the 120 VAC interlock and HEAF
incidents.
32. RIVERA’s complaints to PERKO and ROGERS constituted
allegations of retaliation for disclosing to the employer some
information believed to reveal “abuse of authority.”
33. The untimely notification that RIVERA’s funding “went
away,” his sudden designation as a “transitional” employee
without assignment, the denial of access to the workplace, and
unwarranted notices of warning and suspension constituted action
taken by a contractor against an employee with respect to
employment as a result of his protected disclosures.
34. Many bad management acts contributed to the hostile work
environment of which Rivera complained.
35. The adverse acts appear to be in retaliation for RIVERA’s
having made protected disclosures of fraud, gross mismanagement,
gross waste of funds, or abuse of authority, and danger to
employees and public health or safety.
36. The alleged ongoing harassment against RIVERA culminated in
a Notice of Dismissal on October 16, 2013. The notice said
nothing specific about the alleged “poor performance,
misconduct, and insubordination” on which it purportedly was
based.
37. RIVERA submitted a complaint pursuant to 10 C.F.R. Part 708
to Clemonce Heard (HEARD), NNSA Livermore ECP Manager, on
January 16, 2014, alleging retaliation for protected
disclosures.
38. RIVERA amended the said 708 complaint on January 30, 2014.
39. RIVERA was notified that his 708 complaint was accepted,
that it would be investigated, and that a hearing would be
conducted on the merits; but in fact there was no investigation
of the facts alleged in the complaint, and there was no hearing.
40. The DOE Office of Hearings and Appeals (OHA) failed to
investigate and failed to conduct a hearing on the merits.
41. The investigator, PATEL, who refused to conduct an
investigation of any of the facts alleged in the complaint,
falsely claimed that RIVERA did not allege anything that should
be investigated.
FIRST CAUSE OF ACTION
WRONGFUL DISCHARGE IN VIOLATION OF PUBLIC POLICY
Defendant Lawrence Livermore National Security LLC
42. The facts stated above in paragraphs 4 through 41 are
incorporated as if set forth here.
43. It is the public policy of the United States to prohibit a
personnel action with respect to an employee for disclosure of
information that the employee believes evidences any violation
of law, rule, or regulation, or gross mismanagement, a gross
waste of funds, an abuse of authority, or a substantial and
specific danger to employees’ or public health and safety.
44. It is the public policy of California to prohibit an
employer from retaliating against an employee for disclosing
information to a government agency, to a person with authority
over the employee or another employee who has authority to
investigate, discover, or correct the violation or
noncompliance, if the employee has reasonable cause to believe
that the information discloses a violation of state or federal
statute, or a violation of or noncompliance with a local, state,
or federal rule or regulation.
45. RIVERA was employed by Lawrence Livermore National Security
LLC (LLNS).
46. RIVERA was discharged from employment by LLNS.
47. RIVERA’s disclosure of information that he believed
evidenced a violation of law, rule, or regulation, or gross
mismanagement, a gross waste of funds, an abuse of authority, or
a substantial and specific danger to public health and safety,
was known to, and was a motivating reason for his discharge by,
LLNS.
48. RIVERA’s disclosure of information to a government agency,
to a person with authority over the employee or another employee
who has authority to investigate, discover, or correct the
violation or noncompliance, was known to, and was a motivating
reason for his harassment and discharge by, LLNS.
49. Consequently RIVERA has experienced actual and prospective
income loss, expenses, damage to reputation, and mental and
emotional distress.
50. RIVERA’s complaints regarding High Explosive Application
Facility incidents, and his communications regarding the 120 VAC
interlock work safety pause – as well as disclosures he made
concerning other safety violations – constituted disclosures to
the employer about substantial and specific danger to employees
or to public health or safety.
51. RIVERA had reasonable cause to believe that the various
disclosures he made revealed gross mismanagement, gross waste of
funds, an abuse of authority, or violation of state or federal
statute, or a violation of or noncompliance with a local, state,
or federal rule or regulation.
SECOND CAUSE OF ACTION
VIOLATION OF FIRST AMENDMENT FREEDOM OF SPEECH
U.S. Const. Amend. I
Defendants Kimberly Davis Lebak and Shiwali Patel
52. The facts stated above in paragraphs 4 through 51 are
incorporated as if set forth here.
53. Kimberly Davis Lebak (LEBAK) and Shiwali Patel (PATEL) owed
a specific duty to RIVERA to refrain from punishing him for his
exercise of his constitutional right of freedom of speech.
54. RIVERA has a constitutionally protected right under the
First Amendment.
55. LEBAK and PATEL, federal officials, violated that right.
56. RIVERA’s exercise of that right was known to LEBAK and
PATEL who, acting under the color of office as federal
officials, punished him for it.
57. Consequently RIVERA has experienced actual and prospective
income loss, expenses, damage to reputation, and mental and
emotional distress.
58. No available statutory cause of action provides any
monetary compensation against PATEL and LEBAK for the violation
of constitutional rights.
59. No special factors suggest that the Court should decline to
provide the judicial cause of action and remedy.
60. No appropriate immunity can be raised by PATEL and LEBAK.
THIRD CAUSE OF ACTION
VIOLATION OF DUE PROCESS
Administrative Procedures Act, 5 U.S.C. § 551 et seq.
Defendants National Nuclear Security Administration and
Office of Hearings and Appeals, U.S. Department of Energy
61. The facts stated above in paragraphs 4 through 60 are
incorporated as if set forth here.
62. Officials of the National Nuclear Security Administration
(NNSA) and of the Office of Hearings and Appeals (OHA),
United States Department of Energy (DOE), violated RIVERA’s
constitutional right of due process.
63. DOE’s NNSA officials knowingly allowed LLNS to disregard
RIVERA’s complaints of retaliation for protected activity.
64. DOE’s OHA officials knowingly disregarded RIVERA’s right to
have his retaliation complaint investigated and decided in an
administrative hearing on the merits.
65. OHA rendered a facially incorrect decision dismissing
RIVERA’s complaint of retaliation.
PRAYER FOR REMEDIES
Wherefore PLAINTIFF requests:
[ 1 ] Compensatory damages of five million dollars
($5,000,000.00) against Lawrence Livermore National Security
(LLNS), Shiwali Patel, and Kimberly Davis Lebak.
[ 2 ] Reinstatement of Anthony T. Rivera (RIVERA) to his
former position as a Senior Engineering Associate (Job
Classification 339.2) employee of LLNS.
[ 3 ] An order requiring DOE to reform NNSA procedures so as
to enforce in practice the right of employees of government owned
contractor-operated national laboratories to be free from
retaliation for protected disclosures.
[ 4 ] An order requiring DOE to reform OHA procedures so as
to enforce in practice the right of employees and contractors to
have complaints of whistleblower retaliation impartially
investigated and decided in an administrative hearing on the
merits.
5 . Such other and additional remedies as the Court may deem to
serve the purpose of justice and the public interest.
REQUEST FOR JURY
Plaintiff RIVERA requests trial by jury.
Respectfully submitted.
Dated: January 19, 2016 ___s/A.P.X Bothwell_________
ANTHONY P. X. BOTHWELL
Attorney for
Anthony T. Rivera, Plaintiff
La Jicarita 