Still No Justice for Whistleblower Anthony Rivera

Editor’s Note: La Jicarita has been covering Anthony Rivera’s case against Lawrence Livermore National Laboratory since October of 2015. After revealing safety and management abuses at the Lab he was fired by the new contractor, Lawrence Livermore National Security (LLNS) in 2013. In January of 2014 he filed a Department of Energy (DOE) 708 Whistleblower complaint against LLNS, which alleges LLNS retaliation for his complaints. After a year of waiting for DOE Secretary Ernest Moniz to review his whistleblower complaint, he  filed a lawsuit on January 19, 2016  against the LLNS and two Department of Energy officials. The DOE agreed to hear Rivera’s whistleblower case but after failing to have his petition reviewed by either former Secretary Moniz or current Secretary Perry it looks like he’s headed back to court.

 This case has caused enormous financial and emotional stress on Rivera and his family. I’ve  posted below a statement from Rivera’s wife Edna that was submitted to the Department of Energy on his behalf. The Riveras are New Mexico natives who met while attending the University of New Mexico.

August 2, 2018
The Honorable Rick Perry
Secretary
United States Department of Energy
1000 Independence Ave., SW
Washington, DC 20585
Re: Anthony T. Rivera v. LLNS
OHA Case No. WBB-17-0010

Dear Secretary Perry:
On January 4, 2018 Anthony Rivera timely filed his Petition to the Secretary seeking review of the case of termination of his employment in 2013, after he had made protected disclosures of safety violations and mismanagement with Lawrence Livermore National Security (LLNS), the contractor that operates Lawrence Livermore National Laboratory (LLNL).

It has been seven months since that Petition to the Secretary Perry was filed. I am obliged to advise that Mr. Rivera will feel compelled to bring the Department of Energy back into the United States District Court here unless he receives a favorable Final Agency Decision this month, or by September 4, 2018.

Further delay would appear unreasonable in the circumstances. See Administrative Procedures Act, 5 U.S.C. § 555(b); Telecommunications Research & Action Center v. FCC, 750 F.2d 70, 77-78 (D.C. Cir. 1984); Forrest Guardians v. Babbitt, 174 F.3d 1178, 1193 (10th Cir. 1998); In re United Mine Workers of America International Union, 190 F.3d 545, 546 (D.C. Cir. 1999); Charles Evans, Case No. TBU-0026 (June 2, 2004). After all, Secretary Moniz unduly had delayed a decision in this case, which arose from events that occurred more years earlier. And I recall that, when the matter was pending in federal court in 2016, the then-counsel for DOE misrepresented to the court that the litigation was “premature” given a review by the then DOE Deputy Secretary was pending, when in actuality the matter was simply pushed back to the DOE OHA, creating additional unreasonable delays for my client. Mr. Rivera and his family needlessly suffer continued emotional and financial hardship as a result of the failure to remedy the unjustified NNSA/LLNS destruction of Mr. Rivera’s career that occurred more than five years ago.

Your proclaimed commitment to health and safety in DOE facilities, and to zero tolerance for whistleblower retaliation – now tested in the case of Anthony T. Rivera – is much appreciated.

Sincerely yours,
ANTHONY P. X. BOTHWELL
Attorney for Anthony T. Rivera
cc. Dorothy S. Liu, Esq.

The Declaration Edna Rivera was submitted in the DOE OHA Whistleblower Hearing that took place in June of 2017 in Livermore, CA.

My name is Edna Rivera. I have been married to Anthony for 35 years. Anthony and I met in Belen, NM, we were both attending UNM where Anthony was pursuing an electronics degree. We have three children, two are married and one is still living at home with us and began college in August of 2013.

In 1984, Anthony completed his degree in electronics with a “pulse power” option, and accepted a career indefinite FTE position with LLNL in Livermore, California. It was a big decision to move out of state, but Anthony’s career indefinite job offer came with the added job security benefit of having a supplemental labor workforce to buffer funding fluctuations. Later, I was also employed at LLNL as an Employment Assistant in Human Resources supporting Engineering under the leadership of ________. Unfortunately, due to health reasons, I left LLNL and had to go on long-term disability.

From age 21, Anthony devoted his entire 29 year career to national security missions at LLNL until age 50, when he was wrongfully dismissed from employment with the contractor LLNS for raising safety and mismanagement concerns.

When Anthony was dismissed from LLNS employment he applied for CA unemployment benefits and LLNS contested his eligibility for these benefits. This required Anthony to appear before the unemployment Office of Appeals in Stockton, CA, before Judge ____________. I accompanied Anthony to the hearing for support in January 2014. Anthony did not have legal counsel in this appeal hearing, and thus represented himself. In attendance on the LLNS side were ___________, __________ and their staff relations representative. The hearing lasted about 3-4 hours. Within two weeks we received Judge ______ decision where he determined the employer (LLNS) “discharged the claimant for reasons other than misconduct”, and therefore Anthony was entitled to CA unemployment benefits. Within two weeks Judge _____ was able to determine Anthony was dismissed for “reasons other than misconduct”, and yet this wrongful dismissal DOE whistleblower case remains unresolved after more than three years.

The wrongful termination of my husband has created a huge financial hardship and stress for our family. While DOE states they have a zero tolerance for retaliation, this was certainly not the case for my husband. DOE has offered this 708 Investigation and hearing, pledging objectivity and impartiality.   However, we are faced with paying an attorney on a limited income, while in contrast, LLNS legal expenses are being funded by DOE/NNSA. How can an employee filing a DOE whistleblower complaint have a fair and impartial investigation and hearing when his financial legal resources are dwarfed in comparison to a well-funded DOE contractor?   Imposing such a funding imbalance against the employee is unjust and unfair.

I have muscular dystrophy and I am on disability. I have significant weakness in my arms and legs, tire easily, and have low energy levels. In April of 2013, I was diagnosed with breast cancer after which I underwent radiation therapy for several weeks leading to further weakness and energy loss. Anthony requested an FMLA to help with my care and recovery which was approved by LLNS through December 31, 2013. Anthony’s managers __________, ___________ and Staff Relations attorney ____________, were all aware of his FMLA approval. Nevertheless, LLNS proceeded to dismiss him, as Judge _____ later determined, “…for reasons other than misconduct”. To my knowledge none of these LLNS managers were held accountable for this DOL FMLA violation.

While in EIT/EBA status, Anthony, an exempt salaried employee, was subjected to unfair and humiliating employment practices by __________. For example, Anthony was forced to report his arrival and departure times from his Building 131 office daily. For an hourly employee this requirement would have been unusual, but for an exempt salaried employee it is unheard of. Our daughter, _______, began attending Las Positas College in Livermore in the Fall of 2013. Anthony requested that he be able to shift his work schedule by ~15 minutes so that he and our daughter could commute from Tracy, CA together. __________ outright refused this request. Anthony did not have a programmatic assignment when he made this request, and said most prospective hiring managers wanted to meet with him mid-morning or in the afternoon anyway. ___ also required Anthony to provide confirmation for each and every doctor’s appointment he had even if he was only gone for an hour or two. This type of micro-management was unheard of for an exempt salaried employee. Clearly these actions by __________ were simply intended to harass and humiliate my husband and they were an abuse of management authority.

As an EIT in 2012-2013, Anthony was funded by an overhead account meaning that individual programs and divisions were not being charged for his “institutional” work. In 2012, per DOE 708 expectations, my husband filed two LLNS internal grievances with Staff Relations to address numerous acts of LLNS mismanagement. In an attempt to de-escalate the situation by disconnecting himself from _________, Anthony requested to _____ ____ that he be allowed to report to Superintendent ___________ instead of Superintendent __________, who was not working with Anthony in good faith and was causing him undeserved stress. This request was refused by __________ in a meeting, where ___ said he was going to be Anthony’s manager to “the end.” My husband asked ___ what he meant by “the end” and he refused to answer. Later to our surprise, LLNS decided to unilaterally terminate both internal grievances and suspend Anthony for five days without pay. ___ claimed Anthony’s request to report to another manager threatened his job.

___________ and __________ escorted Anthony off the LLNL site on September 20, 2013. During the DRB review period, Anthony was still a LLNS employee, but was told by ___________ that he no longer had access to LLNL or his unclassified office computer while his dismissal was pending before the DRB. This of course undermined his ability to defend himself during the pending dismissal before the DRB, and later, to provide all relevant documents to DOE/OHA investigators. Anthony was not accused of theft, espionage, or any such serious offense, so there was no basis to prevent his LLNL site access. Preventing Anthony’s access to LLNL while he was still a LLNS employee, was a tactic to humiliate and stigmatize him before the DRB review occurred, and to obstruct his access to needed documentation and witnesses to defend his position to the DRB, and again later when the DOE 708 complaint process began. How can DOE have a “zero tolerance” for retaliation policy when they permit contractors to protect themselves in this way?

My husband devoted his 29 year career to LLNL missions. LLNS management was not working with Anthony in good faith. After he was dismissed from LLNS in 2013, my husband applied for numerous jobs, but I know full well that at age 50+ and being fired from LLNS, most employers would not consider him for hire.

I’m unable to express on paper how brutally LLNS mistreated my husband and the stress this has placed on our entire family. Managers should never be allowed to treat any individual in this way, and if they do, they should be swiftly held accountable. My hope is that this hearing will bring justice and satisfactory closure for us, and that no other DOE contractor employee or their families will have to go through the stress and hardship we have suffered since September of 2012.

 

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