June 5, 2018
Dear La Jicarita Editor,
On October 8, 2015 your Editor’s Note above my Whistleblower Retaliation story, mentions that the contractor Lawrence Livermore National Security’s (LLNS) laid off workers reached a settlement of well over $30 million in their lawsuit against LLNS. Your readers might be interested to know that this lawsuit was dragged out for 7 years, and in that period of time, the National Nuclear Security Administration (NNSA) [the semi-independent agency that administers the nuclear laboratories for the Department of Energy (DOE)] reimbursed LLNS nearly $23 million for litigation and fee expenses to defend themselves against those laid off LLNS workers.
My DOE 708 Whistleblower Complaint Update
Background
In January of 2014, I filed a DOE 708 Whistleblower complaint against Lawrence Livermore National Security (LLNS) for numerous safety and mismanagement issues following my termination of employment with LLNS in October of 2013. At the time I was 50 years old with 29 years of service. In 2012 and 2013 prior to my termination, I tried to resolve these issues, later defined as DOE 708 complaint “protected disclosures, at the lowest level possible, starting with my LLNS Engineering Managers, then LLNS Staff Relations, then the NNSA Livermore Field Office (LFO) Employee Concerns Program (ECP) Manager.
Finally, on September 17, 2013, I reached out to the NNSA LFO Manager herself to attempt to resolve these issues. The NNSA LFO Manager has a significant role in assessing the yearly performance of the contractor LLNS and in determining the LLNS annual award fee. Three days later, on September 20, 2013, I was escorted out of the LLNL gate based on a LLNS “Intent to Dismiss” memorandum.
NNSA Livermore Field Office Manager Actions After I was Dismissed
After I was terminated, the NNSA LFO Manager sent a memorandum to the NNSA HQ Internal Affairs Office stating among other things, that I never worked in the LLNL High Explosives Application Facility (HEAF) where I had communicated two safety concerns. The implication being, how could one raise a safety issue if that person never worked in the facility in question? The 2013 NNSA LFO Manager never bothered to contact me on the HEAF safety issues or on any other related investigations she was responsible to objectively conduct. Instead she misrepresented my work experience to the NNSA HQ Internal Affairs. Actually, I worked in the HEAF for over 16 years, but I don’t think that little fact was constructive to the NNSA LFO/LLNS narrative to defend their actions. As former LANS Director McMillan [Charles McMillan, Chairman of Los Alamos National Security (LANS)] logically pointed out below, one need not normally work in an area to raise a safety issue anyway.
Following the LANL Arc-Flash, a July 13, 2015 memorandum from Director McMillan stated to LANS employees, “…that every Laboratory worker has the authority and responsibility to stop work if they see something that is potentially unsafe, or believe that some aspect of the work is unsafe. This authority and responsibility extends to any area of the Laboratory, not just where a worker might normally work.” Although this guidance occurred after a horrific accident, it was worth reinforcing.
The NNSA Livermore Field Office Manager becomes the Los Alamos Field Office Manager
In 2014, the NNSA LFO Manager left Livermore and became the Los Alamos Field Office Manager. On September 11, 2014, this NNSA Los Alamos Field Office presented the “LANL’s Safety Culture Plan.” One of the goals of this plan was “Ensuring that employees are offered and encouraged to use the available venues to raise safety issues and concerns without the fear of reprisal or retaliation.” I support this non-retaliation 2014 Safety Culture goal, but it must represent more than words on paper designed to satisfy a NNSA HQ expectation. About a year earlier, when this same NNSA Field Office Manager had material oversight responsibility for LLNS, two Senior LLNS Managers made the following statements regarding safety issues I raised at HEAF in 2013:
While addressing my 2014 Unemployment Appeals Hearing Judge Senior LLNS “Manager A” said:
“… 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…”
In response to the 2014 DOE Office of Hearings and Appeals (OHA) Investigation, Senior LLNS “Manager B” said (bold for emphasis):“Although Mr. Rivera alleges he made protected disclosures regarding HEAF in September of 2013, the issues he raised had already been brought to the attention of HEAF management and were being adjudicated when Mr. Rivera offered his unsolicited evaluations. Mr. Rivera was disruptive to HEAF staff, needled them for information, and provided unsolicited feedback on a recent event in the facility…”
I believe the type of contractor retaliation above for raising safety issues is a precursor to lab accidents. Perhaps if more LLNS employees felt they could offer “unsolicited evaluations” to HEAF Management without the fear of reprisal, they wouldn’t have received a critical 2013 DOE IG Report INS-O-13-06, stating HEAF had a number of operational discrepancies involving security access, high explosive inventory, and contradictory operational procedures.
The JAIT Arc-Flash accident report stated:
- “Human error had not been fully addressed in terms of “what-if” scenarios.
Therefore, robust controls were not implemented.”
- “Trained employees did not identify the lack of required signs, tags, and barriers-a standard industry practice.”
- “LANL management needs to ensure workers are encouraged to and are acknowledged for playing an active role in ensuring their own (and work team’s) safety and compliance with work rules.”
The DOE Radiological Release WIPP Report stated:
- Employees “… perceived repercussions and reprisals for identifying issues on WIPP Forms.”
- “Line management encouraging a questioning attitude without fear of reprisal.”
- “Following through to resolve issues identified by the workforce” was a “Judgement of Need” safety culture action item.
The lesson here is if an accident has yet to occur, LANS employees are conditioned to believe they will receive harsh pushback or reprisals if they elect to raise safety concerns with management. This was my experience with LLNS Management when I raised HEAF and “Non-Destructive Testing” Facility safety concerns at LLNL. The NNSA Field Officer Managers at LANL and LLNL can either play a constructive role to correct the retaliation culture at these labs, or they can enable and defend it. In late 2017, the NNSA Los Alamos Field Office Manager position was placed under new Leadership.
The DOE OHA Judge’s Decision, and the Ineffectiveness of Purported Whistleblower Protections
On September 27, 2017, DOE OHA Judge Palmer ruled in case number WBH-14-0006 that I indeed raised DOE defined “protected disclosures” regarding a LLNL High Explosives Application Facility (HEAF) liquid mercury spill human hazard, and human hazard safety procedure deficiencies within the LLNL Non-Destructive X-Ray Facility. These were only a subset of the “protected disclosures” I provided to the OHA Investigator and to the OHA Hearing Judge.
Unfortunately, methods of DOE contractor retaliation are poorly defined, and there are no documented principles, policies, practices, or examples from which to reference forms of contractor misconduct.
LLNS, bankrolled by DOE for the legal expenses of their hired firm, convinced the DOE OHA Judge that they would have fired me anyway, so the Judge ruled in the contractors favor. In order to reach such a narrow conclusion, the OHA Judge systematically identified contractor mismanagement, abuse of authority, retaliation, and repeated harassment, as areas of “day-to-day” contractor policies that were essentially outside the scope of his review. As such, DOE contractor tools of retaliation were left under the radar and unaddressed by the OHA. By default, contractors, sometimes with the endorsement of their Field Office, will always say they were going to fire an employee anyway by undermining the employee’s work experience, or discrediting the employee’s conduct or performance. There are many recent DOE contractor retaliation cases that support this point. DOE contractors will never state they fired an employee for raising concerns of safety, fraud, or abuse. This is why DOE definitions and examples of contractor misconduct in all forms must be clear and binding within these DOE/NNSA contracts for current and future contractors, with stiff financial penalties for noncompliance and willful misrepresentations.
According to a NNSA FOIA [Free of Information Act] release, LLNS performance with respect to employment practices and objective processing of employee grievances were not a NNSA assessed performance metric in 2013. As a result, the DOE 708 complaint requirement of attempting to resolve issues internally first is flawed in favor of the contractor. This is because the LLNS internal grievance system at least was not assessed by the NNSA and was therefore permitted to run open loop allowing it to simply defend the conduct of LLNS management. During the time spent by the employee to use the LLNS internal grievance system per DOE 708 complaint requirements, LLNS management is free to further “paper the file” [to load up a case with allegations that are individually weak or meaningless, but by their volume, look impressive and convincing] against the employee, that enable and support “they were going to fire him anyway” OHA conclusions.
Here are a few of the “day-to-day” contractor policies the OHA Judge Ignored:
- The LLNS Director appointed an Independent Reviewer to address my internal grievances. She slow-walked the entire process while LLNS managers were continuing to retaliate against me. Documents released during the OHA review show the Independent Reviewer learned of LLNS policy violation concerns pertaining to the actions of the Senior Staff Relations Manager that she did not know how to address. Instead of disclosing her inability to address the matter to all parties, and immediately recusing herself for that reason, she contacted a subordinate Staff Relations manager for advice (?). This suggests the Independent Reviewer herself, was actually in a subservient role to Staff Relations and not Independent at all. The Independent Reviewer never revealed her inability to address her conflict with the Senior Staff Relations Manager, and instead stated that I compromised her neutrality and resigned from her Independent Review appointment. At that point, the Director and the Senior Staff Relations Manager in question unilaterally decided not to offer a new Director appointed Reviewer. Instead, the Senior Staff Relations Manager offered an external arbitration process knowing that had I accepted it, I would not be able to take LLNS to Court on the matter at a later date. A short time later, LLNS suspended me for 5 days for events and accusations the Director appointed Reviewer was assigned to objectively review and address. The Director appointed Independent Review process was a sham.
• The LLNS Associate Director (AD) for Strategic Human Resource Manangement ((SHRM) was assigned to the Disciplinary Review Board (DRB) responsible for my 2013 dismissal. Email communicatons between the AD for SHRM and Staff Relations cleary show the AD for SHRM was in a subservient role to Staff Relations, and was secretly requesting their guidance for questions I was asking him to answer before my dismissal. The DRB process was rigged for a predetermined outcome and a complete sham.
• During the ~12 months I was an Employee In Transition (EIT) and later an Employee Between Assignments (EBA), LLNS did not post all programmatically funded assignments I may have been qualified for, and refused to consider me for programmatically funded assignments I was clearly qualified for and aware of.
• LLNS continued to paper the file for those 12 months I was an EIT and EBA. Although I raised many DOE defined protected disclosures in that period, the OHA Judge said:
“LLNS also argues that dismissal is appropriate because Mr. Rivera is relying on alleged acts of retaliation that occurred more than 90 days before he filed his Complaint, and are therefore time-barred.”
This line of reasoning is very troubling because it offers contractors a method to circumvent 708 protections by keeping the targeted for termination employee employed greater than 90 days beyond his last alleged protetected disclosure. This contractor tactic takes advantage of the DOE requirement that employees attempt to resolve matters internally with the contractor before filing a 708 complaint. It should be noted that the OHA Judge allowed LLNS to paper the file with accusations against me without any such time related constraint.
- The OHA Investigator (not the Judge) stated:
“In some instances, LLNS may have faulted Mr. Rivera for conduct that did not merit action.”
LLNS repeatedly faulted me in gross disproportion to alleged conduct. I referred to this as DOE defined abuse of authority and mismanagement, but LLNS would likely refer to their actions as progressive discipline which sounds thoughtful and structured.
- Employees should meet with their management as requested or as needed. However, once it is clear managers are not working with you in good faith, or just intend to intimidate or harass you, it is reasonable to request 3rd party or ombudsman participation in those meetings. Unfortunately, the OHA Investigators and OHA Judge declared virtually all tactics LLNS used to intimidate, humiliate, retaliate, and terminate me as areas of day-to-day practices of the contractor and of no concern to the OHA. Therefore, efforts I made in 2012/2013 to request 3rd party or ombudsman participation in key LLNS meetings to address and prevent additional harassment or retaliation, were deemed employee refusals to meet with LLNS management.
- The Investigator and the Judge did not declare a violation of 10 CFR 851.26 Recordkeeping and Reporting, when LLNS preemptively destroyed my case relevant computer files knowing they (LLNS) alleged I was terminated for-cause well before the OHA Investigation ever got off the ground. Under section 851.26 (4), the contractor must “not conceal nor destroy any information concerning noncompliance or potential non-compliance….”
After participating in the OHA Investigations, Depositions, Hearings, and reviewing LLNS management statements, it became very clear that LLNS management believed early in the process they would not be held accountable for willful misrepresentations or acts of perjury by the OHA.
The DOE will let contractors do whatever they wish to employees including acts of retaliation, unless a safety discrepancy becomes an incident or accident. Contactor employees can either risk their careers to raise a safety concern, or ignore the safety concern and hope an accident doesn’t occur. As an example, the DOE Radiological Release WIPP Report acknowledged employee fear of “repercussions and Reprisals” after the 2014 ~$500 million radiological accident occurred.
DOE/NNSA Continues to Bankroll LLNS for Legal Fees and Expenses Associated with my Case
Despite a 9-27-17 determination by a DOE OHA Judge that there was a nexus between my whistleblower “Protected Disclosures” and LLNS retaliation, the NNSA legal fee reimbursement stream to the contractor LLNS kept flowing into November 2017 and beyond.
In 2016, DOE/NNSA reimbursed LLNS, a sister LLC to LANS, $57,374 for “Rivera v. LLNS” in Northern District of CA Court for legal fees in a case that was classified as “ongoing.”
In May 2018, through a FOIA, the DOE/NNSA released another set of whistleblower complaint related legal fee reimbursements to LLNS in the amount of $170,997. This figure does not include reimbursements to cover this legal firm’s production of its 49-page January 2018 LLNS response to my Petition for Secretary Review. Furthermore, this figure does not include LLNS internal labor man-hour charges for such things as LLNS management strategy meetings, OHA Investigator telephonic interviews with LLNS managers and employees, LLNS employee statement production, time spent coaching for depositions and time spent coaching for the OHA Hearing.
When all expenses, including those redacted, are considered to date, I believe the DOE/NNSA will have reimbursed (bankrolled) LLNS well over a quarter of a million dollars to defend themselves, while leaving me, the ex-worker bee whistleblower, to financially fend for himself. All I wanted starting in 2013 was to be reinstated and made whole. However, when contractors know DOE will bankroll their legal expenses, the sky’s the limit, and consideration for the whistleblower is not a priority. LLNS is just one Northern California DOE/NNSA contractor within the DOE Complex receiving such reimbursements. DOE reimbursements to contractors represent a financial paradise for legal firms eagerly willing to rack up billable hours from DOE contractors that have no financial skin in the game.
My July 2015 Petition the Secretary/Statement of Issues to DOE Secretary Moniz
In my July 2015 Petition the Secretary/Statement of Issues to Secretary Moniz, I provided evidence that the NNSA LFO management and LLNS management had essentially fused together, and that this was a contributing factor not only to my 2013 dismissal, but was also evident in subsequent DOE/NNSA HQ inquiries on the matter. Unfortunately, Secretary Moniz elected not to directly review my Petition. Instead, that responsibility was forwarded to the DOE Deputy Secretary Elizabeth Sherwood-Randal in 2016. However, the DOE Deputy Secretary Elizabeth Sherwood-Randal, elected not to directly review my Petition either, when she “learned” the DOE OHA Director had vacated his earlier Appeal decision to start yet another ineffective contractor biased OHA Investigation.
My January 4, 2018 Petition the Secretary/Statement of Issues to DOE Secretary Perry
I requested a final agency decision from Secretary Rick Perry by February 5, 2018. In the months that followed, I’ve also attempted to reach Secretary Perry by email and through his DOE Director of Scheduling to learn when he will make a “final agency decision” on this matter. In my Petition the Secretary/Statement of Issues to Secretary Perry, I offered to meet with him in Washington, DC to review my case material prior to his Petition the Secretary/Statement of Issues decision.
Let me share the first two paragraphs of my January 4, 2018 Petition the Secretary/Statement of Issues:
“Dear Secretary Perry,
Unfortunately, you have inherited a chronic whistleblower retaliation problem unaddressed by the Obama Administration involving the DOE, the NNSA, and their contractors across the Complex. In 2013, I was fired from one of these DOE/ NNSA contractors called Lawrence Livermore National Security (LLNS) for raising safety and mismanagement concerns.
In 2016, this whistleblower retaliation problem was confirmed by the GAO. If the DOE OHA whistleblower function is not materially reformed, it should be defunded with its intended whistleblower function absorbed by the Department of Labor, another objective Federal agency, or left to the Courts.”
Bankrolling DOE contractor legal expenses to fight whistleblower employees is grossly biased and unfair. DOE Contractors need to be promptly held accountable for retaliatory conduct against employees, and not coddled by DOE with go-through-the-motions Investigations and Hearings. As explained to Secretary Perry in great detail, the DOE OHA does not provide an impartial process to address whistleblower concerns by its very design. The 2016 GAO report stated, “DOE has infrequently used its enforcement authority to hold contractors accountable for unlawful retaliation, issuing two violation notices in the past 20 years.”
This administration inherited a chronic DOE whistleblower retaliation problem unaddressed by the Obama administration. Contractor worker bees deserve equal justice, too; my dismissal from LLNS is coming up on 5 years now, and I am hopeful Secretary Perry will reach a “final agency decision” in my favor very soon.
Thank you,
Anthony Rivera
La Jicarita 