Rivera v. United States Department of Energy

Background

Anthony T. Rivera sought judicial review under the Administrative Procedure Act of the Department of Energy’s final decision upholding the termination of his employment by Lawrence Livermore National Security, LLC (LLNS), a private contractor operating a research and development facility for the Department of Energy. Rivera had worked at LLNS as an engineer from June 18, 1984, until October 16, 2013.

Rivera had filed an administrative complaint under the Department of Energy’s Contractor Employee Protection Program, known as Part 708. He alleged that LLNS terminated him in retaliation for protected disclosures concerning the use of LLNS resources and safety hazards. After an administrative law judge held a hearing and reviewed testimony and documents, the judge concluded that LLNS proved by clear and convincing evidence that it would have terminated Rivera even without his protected disclosures. The Department of Energy’s Office of Hearings and Appeals affirmed that decision, and the Department’s secretary later denied Rivera’s request for further review.

The administrative record described repeated workplace disputes before Rivera’s termination. These included mass emails criticizing managers, refusals to meet with supervisors, resistance to work assignments, a safety pause involving an assignment Rivera had not begun, and failure to follow letters directing him to attend required meetings, stop demanding unauthorized actions, and approach assignments cooperatively. LLNS issued Rivera a letter of expectations, a letter of warning, and a five-day suspension before terminating him.

Court’s review standard

The court reviewed the agency’s decision under the Administrative Procedure Act. It explained that its role was not to decide the facts anew but to determine whether the administrative record legally permitted the agency to reach its decision. The court could set aside the decision if it was arbitrary, capricious, an abuse of discretion, or otherwise unlawful. Review was highly deferential, and the court could not substitute its judgment for the agency’s if the agency had a reasonable basis for its decision.

Retaliation analysis

The court held that the administrative law judge reasonably concluded that LLNS would have terminated Rivera even without his protected “spark gap switch” and “B327” disclosures. Under the Part 708 framework, an employee must show by a greater-than-50-percent likelihood that he made a protected disclosure and that it contributed to retaliation. The burden then shifts to the contractor to prove by clear and convincing evidence that it would have taken the same action without the disclosure.

The court found substantial documentary and testimonial support for the administrative law judge’s conclusion. The record supported findings that Rivera acted improperly and insubordinately through his communications, refusals to meet with managers, refusals to accept assignments, and failure to comply with the letters of expectations and warning. The court also accepted the administrative law judge’s determination that there was little evidence that the relevant managers were motivated to retaliate because of Rivera’s protected disclosures. Although LLNS did not provide evidence of similar discipline against similarly situated employees, the court held that the other evidence was sufficient to support the decision.

The court rejected Rivera’s arguments that the administrative law judge improperly weighed witness testimony or overlooked evidence favorable to Rivera. Those arguments challenged the weighing of evidence rather than showing that the agency acted arbitrarily or capriciously.

First Amendment arguments

The court also rejected Rivera’s First Amendment arguments. To the extent Rivera attempted to assert a damages claim based on a constitutional violation, the court said he had not pleaded that claim or shown that he exhausted the required administrative remedies. To the extent he argued that his emails were protected speech that could not support his termination, the court held that he had not shown that LLNS’s termination decision involved the required government action. Rivera’s references to LLNS’s relationship with the University of California and the Department of Energy did not establish either joint action or a sufficiently close government connection.

The court added that even if LLNS had engaged in government action and relied on an unconstitutional justification, that would not change the result because the administrative law judge reasonably found that LLNS would have terminated Rivera for his refusals to meet with supervisors, refusals to accept assignments, and failure to follow the workplace directives.

Disposition

The court denied Rivera’s petition and motion for summary judgment and granted the Department of Energy’s motion for summary judgment.