LAW OFFICES OF A. P. X. BOTHWELL
October 12, 2019
FOR IMMEDIATE RELEASE
FEDERAL COURTS MUST SAFEGUARD WHISTLEBLOWER'S RIGHTS,
SAN FRANCISCO LAWYER SAYS IN NUCLEAR WEAPONS LAB CASE
(San Francisco, Oct. 12, 2019) -- Atty. Tony Bothwell today told the U.S. District Court
for the Northern District of California that "the government must be required to protect
whistleblowers [who] have the courage to disclose practices that harm workers, the public and the nation." Defending a nuclear weapons lab engineer against the Department of Energy, Bothwell added, "It is the proper role of the court to overturn decisions of the
Executive Branch that otherwise obscure the truth, chill the workforce, and disserve the law"
The San Francisco attorney represents Anthony Rivera, who was fired by Lawrence
Livermore National Security LLC in 2013 after he disclosed "serious safety violations"
in the lab's High Explosives Test Facility and the Mechanical Engineering Division. A
Department of Energy administrative judge in 2017 decided that the lab intentionally
retaliated against Rivera for having blown the whistle on safety concerns. But the DOE judge also decided that the lab would have fired Rivera anyway because he told coworkers about being harassed by management following his safety complaints.
Bothwell, in a motion for summary judgment filed with the federal court in Oakland, said
the Constitution protects a Livermore lab employee's right to tell coworkers how he was treated by management. The First Amendment applies, he said, because the nuclear weapons lab performs "government functions" and is managed by a joint venture in which the University of California is the "founding partner." Thus Rivera's employer was a "state actor".
Bothwell was the public affairs director of the Livermore lab in the 1980s when he stopped the Physics Department from firing Hugh DeWitt, a physicist who often spoke publicly against U.S. nuclear weapons policy. Bothwell later resigned from the lab. As a lawyer for more than 20 years he has represented Livermore scientists, engineers, and security officers who have blown the whistle on unsafe practices
For more info, read plaintiff motion below:
17 comments:
"But the DOE judge also decided that the lab would have fired Rivera anyway because he told coworkers about being harassed by management following his safety complaints. "
I have to agree with this, the moment you complain to anyone about being harassed by lab management you are going to be fired.
Sorry Rivera but you know the rules, you cannot complain about management, you violated that rule and you pay the price. Everyone knows this.
It will be interesting to see how current and former LLNS managers respond under oath in federal district court in contrast to how they may have responded under "Uncle" DOE OHA court.
I expect Rivera and Bothwell will reveal additional discrepancies and bias regarding the DRB and beyond.
We are sick of Rivera. Let him go fight his case in court, not on this blog...
"We are sick of Rivera. Let him go fight his case in court, not on this blog..."
You got a mouse in your pocket? I guess it is time for "Captain Obvious" to tell you to read all stated purposes of this blog again, or perhaps twice again if needed.
If I cared enough I’d read the judge’s ruling rather than relying upon plaintiff’s council’s characterization thereof.
I do hope justice is done.
"I do hope justice is done."
Did someone die around 2012-2013? An employee? What would cause the LLNS Superintendent (alone) to state that he and the LLNS Division Leader were accused of "murder"? If an employee did pass away thats very sad to hear. What constructive purpose though would there be for the Superintendent to tell Rivera, "I'm going to be your manager until the end" when Rivera just wanted to report to another manager?
Where in the LLNS policies is the function of a DRB explained so employees are made aware of it? What scrutiny is placed on the selection of DRB members? Did Rivera have the opportunity to face his accusers during the DRB process? I hope justice is done as well.
Now the Executive Branch is named, awesome. Cracked ports, nasty world devastating MERCURY containing evil electron tubes, and ignored personnel recommendations were a great part of this. His best case expects us to believe that only AR could see these hazards, missed by others, and the worst case is that there was a cover-up to hide these problems. Or, it could just be that AR was not the only opinion in the room for these issues, and that other opinions had more weight due to prevailing engineering and management expertise? Hmmm.
"His best case expects us to believe that only AR could see these hazards, missed by others, and the worst case is that there was a cover-up to hide these problems. Or, it could just be that AR was not the only opinion in the room for these issues, and that other opinions had more weight due to prevailing engineering and management expertise? Hmmm"
Interesting, but your argument has a few holes in it. First of all, they are not unique. In fact, they are the standard arguments contractors use against virtually every whistleblower that steps forward.
Secondly, if you know anything about HEAF, you'd know that in 2013, that facility was cited for numerous operational, high explosive tracking, and security access discrepancies by the DOE IG in Report INS-O-13-06.
Hence, your "prevailing engineering and management expertise" did not prevent the basket of HEAF discrepancies found by the IG in 2013 that were clearly "missed by others" working in that facility at the time. So there's that.
@10/18/2019 7:58 AM
Ahh, the “standard contractors” argument. Foiled again. One wonders if there are any scenarios allowed to challenge an alleged whistleblower; the challenge, or denial itself implies guilt, something I believe Kafka wrote about. Try again.
Your assumption is that HEAF, and presumably all engineering organizations operate flawlessly. We already know this is not the case. Every organization has discrepancies that are routinely exposed during a given audit period. What is unique, and near unbelievable is that AR alone could lead them out of the wilderness.
I found a web page with Anthony Rivera’s lawsuit against wrongful discharge. It says:
“ 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.”
So the complaint seems to be that some higher up management person (a “superintendent”) was functioning as a “safety manager” for “120 VAC interlock” despite not having any official electrical qualifications? I’m puzzled by this. Is there any validity to this complaint? I don’t expect that higher up management people who have to sign off on IWS’s and other safety documents or have some management oversight responsibilities for safety issues generally have to demonstrate any official scientific or technical knowledge about the issues. In the case of having some sort of safety management oversight over a “120 VAC interlock” I think that the dangers associated with 120 VAC are fairly common knowledge and can’t imagine why a whistleblower would think that the lack of official electrical qualifications in a “superintendent” would be such a serious matter that the whistleblower would announce a “Work Pause”. Can someone enlighten me as to what’s going on here?
-Doug
"I think that the dangers associated with 120 VAC are fairly common knowledge and can’t imagine why a whistleblower would think that the lack of official electrical qualifications in a “superintendent” would be such a serious matter that the whistleblower would announce a “Work Pause”. Can someone enlighten me as to what’s going on here?"
This 2015 article below may answer your 120VAC interlock question, which from the article, may not have been the prime safety concern. I haven't read anything related to a 120VAC interlock safety issue in HEAF.
"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."
The same 2015 article also said a California Unemployment Insurance Appeal Board Judge ruled LLNS had fired Mr. Rivera for "reasons other than misconduct".
"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."
https://lajicarita.wordpress.com/2015/10/08/another-case-of-whistleblower-retaliation-this-time-at-lawrence-livermore-national-laboratory/
A 300 series Engineering Associate is not what many would consider a credentialed engineer, which would be a 200 series. Credentialed usually meant a BSEE from a recognized university with or without a PE, although in the era that Anthony Rivera worked, LLNL still hired people with “equivalent experience,” ex-military or IIT/DeVry as 500’s or 300’s. But, be that what it may, the complaint, no surprise, is a version of events favorable to Anthony Rivera’s case, which does not necessarily mean it is an accurate version of events.
It sounds like Anthony’s perception of imminent danger was more along the lines of he didn’t like the fact that the ES&H guy was not a EE, electronics engineering associate or electronics technician. This sounds a bit suspect to me, as I have known many project managers or project superintendents that did not possess the complete knowledge of the project. In fact, I don’t think I have known one, with the exception of Lowell Wood or other heavies of days gone by who could claim such a depth and breadth of such knowledge.
“Common Knowledge” is an interesting term, especially regarding whistleblowers, and I believe it is on the nose to say that if it were common knowledge, the whistleblower case would be weak.
Thanks for the info, guys. Puzzling story. Not sure if the guy has valid safety concerns or if he’s being too critical.
-Doug
"Did someone die around 2012-2013? An employee?"
Yes, tragically we lost a 500 series NIF technician in 2012.
"in the era that Anthony Rivera worked, LLNL still hired people with “equivalent experience,” ex-military or IIT/DeVry as 500’s or 300’s."
Correct. However, there are also Facility Managers and other Division level 300s in technical areas with technical job responsibilities that don't have technical degrees or equivalent military experience. Some of these 300s acquired a Liberal Arts degree after they were promoted (?).
From the 2015 article, the NNSA LFO and LLNS took a different discrediting approach by stating Rivera "never had job responsibilities at HEAF", when in fact he had a technical assignment there for ~16 years. That lie went all the way to the NNSA HQ Internal Affairs Office, likely sent by the 2013 NNSA Livermore Field Office Manager Kim Lebak. Hmm. With such blatant collusion, no wonder LLNS usually gets favorable PERs from a very cooperative and complicit NNSA LFO.
10/24/2019 9:22 PM
200 series EE’s are not at the top of the food chain at LLNL, and projects have used 500 and 300 series people do what some regard as 200 level work, either because 200’s don’t want it (too small) or that they are too much overhead for small projects. As far as “job responsibilities” go, one would need to know what exactly that meant. The guy in question undoubtedly did some work, and was talented and motivated. The problem is that when you start working outside your lane, there is no administrative support no matter how good you are when things go sideways. And there is the hazard of performing work your super does not understand. These have been well known problems over the course of time the guy in question worked at LLNL.
Looks like this "credible" LLNS "Staff Relations Specialist" has "got some 'splainin' to do!"
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