1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA
7 ANTHONY T. RIVERA, Case No. 19-cv-01304-PJH 8 Plaintiff,
9 v. ORDER DENYING PLAINTIFF'S PETITION AND MOTION FOR 10 UNITED STATES DEPARTMENT OF SUMMARY JUDGMENT AND ENERGY, GRANTING DEFENDANT’S MOTION 11 FOR SUMMARY JUDGMENT Defendant. 12 Re: Dkt. Nos. 29, 31
13 14 Plaintiff-petitioner Anthony Rivera’s (“plaintiff”) petition for judicial review and 15 motion for summary judgment and defendant-respondent United States Department of 16 Energy’s (“defendant”) cross-motion for summary judgment came on for hearing before 17 this court on January 15, 2020. Plaintiff appeared through his counsel, Anthony Bothwell. 18 Defendant appeared through its counsel, Jennifer Wang. Having read the papers filed by 19 the parties and carefully considered their arguments and the relevant legal authority, and 20 good cause appearing, the court hereby DENIES plaintiff’s motion and GRANTS 21 defendant’s cross-motion. 22 BACKGROUND 23 On March 11, 2019, plaintiff filed a complaint against defendant with this court. 24 Dkt. 1 (“Compl.”). In his complaint, plaintiff petitions this court for judicial review of a 25 decision by defendant that upheld the termination of his employment by a private 26 contractor of defendant, the Lawrence Livermore National Security, LLC (“LLNS”) under 27 the Department of Energy’s Contractor Employee Protection Program, Title 10 C.F.R. § 1 (“ALJ”) decision finding that LLNS demonstrated by clear and convincing evidence that, 2 even absent plaintiff’s whistleblowing activities, LLNS would have terminated plaintiff 3 because of his misconduct and insubordination. 4 A. Factual Background 5 LLNS is a research and development facility operated for the benefit of defendant. 6 Compl. ¶ 1. From June 18, 1984 to October 16, 2013, plaintiff was employed as an 7 engineer at LLNS. Id. at ¶¶ 11-12. 8 For purpose of staffing, LLNS uses a matrix organization, in which employees are 9 assigned to both a “Directorate” (which oversees employees within an area of expertise) 10 and a program. Certified Administrative Record (“CAR”) at 4202-03, 4206, 4330, 4333. 11 Plaintiff’s home organization was the Engineering Directorate. Id. The role of the 12 Engineering Directorate is to provide engineering support and personnel to various 13 programs at LLNS. Id. A program makes decisions about the support personnel that it 14 needs, and the Directorates supply and deploy the labor requested. Id. 15 Over the course of his work at LLNS, plaintiff worked on various assignments and 16 developed a range of “skills, knowledge, and assets” (“SKAs”). Id. at 3078-79. During 17 his time at LLNS, plaintiff received “met” or “exceeded” goals on his performance 18 assessments (“PAs”). Id. at 3053-3058. 19 In 2011, plaintiff was a 300-series employee within the Laser Diagnostics Group 20 (“LDS”) in the Laser Systems Engineering and Operations (“LSEO”) Division (one of five 21 divisions in the Engineering Directorate) and was assigned to the National Ignition Facility 22 (“NIF”) program. Id. 4206, 4214-15, 4374. 23 Until 2012, plaintiff reported to Steve Telford, the leader of LDS, id., who, in turn, 24 reported to LSEO Division Superintendent, Ron Darbee (“Darbee”), id. 4407, 4541. In 25 turn, Darbee reported to LSEO Division Leader, Mark Newton (“Newton”), who, in turn, 26 reported to the Associate Director for Engineering, Monya Lane (“Lane”). Id. 4374, 4207- 27 1 08. As provided by the parties,1 the certified administrative record reflects the following 2 course of events between Fall 2011 and plaintiff’s termination on October 16, 2013. 3 1. Fall 2011 – LLNS Issues a Letter of Expectations to Plaintiff After 4 Plaintiff Sends Mass Emails 5 During fall 2011, managers who worked with plaintiff provided input on his work. 6 Mark Bowers (“Bowers”) served as the senior NIF program manager and was a group 7 leader in the Engineering Directorate. Id. at 4331-4336, 4410. At some point, plaintiff 8 apparently learned that Bowers described plaintiff’s performance as below his pay grade. 9 Between November 2011 and February 2012, plaintiff sent a series of emails to 10 groups of managers expressing disapproval of Bowers’ purported remarks and criticizing 11 Bowers. Id. at 2516-29, 4334-39. In a November 29, 2011 email to Bowers and various 12 other managers, plaintiff stated the following: 13 “A 360 self-review of your management style might be of use to you and the NIF team members you must interact with.” Id. 14 at 2520, 4334-37. 15 On January 30, 2012, plaintiff emailed Bowers and other managers, including 16 Bowers’ supervisor Ed Moses, and Parney Albright (Director of LLNS), stating that 17 Bowers’ comments were a “nontransparent verbal attack” by LLNS to retaliate against 18 plaintiff for filing a prior complaint in June 2011. Id. at 2521-22, 4338-39. In the email, 19 plaintiff further criticized Bowers’ review of plaintiff’s work and stated the following: 20 “Because Mark Bowers has not yet published papers recently (ever?), hasn’t pioneered anything in his field that has yielded 21 new funding, or created new lab programs he is not performing at the PhD level . . . . Furthermore, Mark Bowers does not act 22 in a way that motivates his team members and does not appear to have the necessary traits or temperament for a Leadership 23 position.” Id. at 2521-22, 4338-39. 24 On February 2, 2012, Newton attempted to meet with plaintiff to discuss plaintiff’s 25 1 Plaintiff did an exceptionally poor, incomplete job of citing to the Certified Administrative 26 Record in his briefing. While “[j]udges are not like pigs, hunting for truffles buried in briefs, much less buried in disorganized, scattershot evidentiary submissions,” Faulkner 27 v. Wausau Bus. Ins. Co., 571 F. App'x 566, 569 (9th Cir. 2014) (emphasis in the original), 1 concerns, but plaintiff refused. Id. at 2525-26, 4339-41. 2 On February 7, 2012, Newton sent plaintiff a “Letter of Expectations,” which stated 3 that plaintiff’s emails constituted “improper and prohibited conduct” under LLNS’s 4 Personnel Policies Manual and explained that “[c]ritical feedback to managers from 5 employees is essential and acceptable; attempting to professionally malign them is not.” 6 Id. at 2516-19. The letter further provided the following five expectations for plaintiff: 7 (1) Cease using emails to address performance disputes; 8 (2) Stop demanding actions from others that he had no authority to 9 demand; 10 (3) Work cooperatively and professionally with his managers; 11 (4) Attend all meetings he was directed to attend; and 12 (5) Contact the HR department for assistance in developing “personal tools” 13 to help him resolve conflicts and accept negative feedback in a 14 professional manner. Id. 15 2. Fall 2012 – Plaintiff Receives a Warning, Refuses to Meet with 16 Managers, and Sends More Mass Emails 17 Sometime in September 2012, Darbee became plaintiff’s supervisor. Id. at 4374. 18 On September 27, 2012, in a meeting with Darbee and Telford, Darbee informed plaintiff 19 that funding for his NIF position had been eliminated due to purported funding issues. Id. 20 at 2532-2538, 4215-16, 4419-21. 21 As a permanent employee, plaintiff would either transfer to a new assignment, if 22 one was available, or become an Employee in Transition (“EIT”). Id. at 2567-68, 4423- 23 25. As an EIT, his pay would come from an “institutional” budget, and plaintiff would 24 remain an EIT until he found long-term “programmatic work” funded by one of LLNS’s 25 programs. Id. As an EIT, plaintiff was expected to search for programmatic work while 26 completing identified short-term assignments of institutional value to LLNS. Id. 27 At that meeting, Darbee told plaintiff that LLNS had secured a new assignment for 1 Superintendent Roberto Ruiz (“Ruiz”). Id. at 2534, 4429. The task involved evaluating 2 and updating the design of the interlock safety system for Building 327 (“B327”). Id. 3 2534, 4428-29. 4 On September 27, 2012, plaintiff sent an email to senior managers criticizing the 5 new work assignment. Id. at 2537. The next day, plaintiff sent a mass email to over 6 hundreds of employees, stating that Darbee and Telford called him into a meeting 7 “without prior notice,” told him of his release from NIF, assigned him to new work “without 8 my input or consent,” and referring to the supervisors’ actions as “unexpected and 9 inappropriate.” Id. at 2540-41. Newton testified that such mass emails were “disruptive,” 10 id. at 4367, “in the sense” that other employees “were spending time wondering why they 11 were getting emails like this out of the blue that were disparaging NIF, versus doing their 12 job,” id. at 4369. 13 Plaintiff emailed Ruiz and went to Ruiz’s office multiple times, seeking information 14 about the position. Ruiz testified that plaintiff came to his office several times without 15 scheduling a meeting and became upset when Ruiz did not immediately make time for 16 plaintiff. Id. at 2932-36. 17 On October 2, 2012, plaintiff went to Ruiz’s office, and Ruiz asked him to return 18 when he was available. Rather than meet with Ruiz at the appointed time, plaintiff 19 returned earlier and demanded Ruiz provide him information, purportedly accused Ruiz 20 of not having the requested information, and said he would do a “Stop Work” action. Id. 21 at 2544-48. At around 3:55 p.m., plaintiff initiated a safety pause (i.e., an immediate 22 pause in work) in the MED, even though he had not yet begun to work in that division. Id. 23 at 2546-47, 2557-58. Engineering Directorate Safety Manager Lisa Tarte (“Tarte”) 24 contacted plaintiff immediately after he initiated the safety pause, and plaintiff informed 25 her that he was not at the job location, did not know where the work assignment was 26 located, and had not yet begun work on the interlock system. Id. at 2550-51. 27 On October 3, 2012, plaintiff sent another email to hundreds of employees and 1 “undefined farce,” and stated that he was declining a proposed meeting with Newton and 2 other managers “for the moment” and that he wished to have an attorney present at 3 future meetings with Newton. Id. at 2540-41. 4 Around the time plaintiff sent his email, Darbee and Newton located plaintiff at his 5 cubicle and asked if they could talk about the MED assignment. Id. at 2570, 4346-47, 6 4441-42. According to Darbee and Newton, plaintiff refused to speak with them without 7 an attorney and, despite Darbee’s request that plaintiff stay, departed his cubicle. Id. 8 Plaintiff testified that he left because he was preparing to go home on sick leave when 9 Darbee and Newton went to see him. Id. at 3558-60. On October 4, 2012, plaintiff sent 10 an email stating that he was on leave. Id. at 2570. 11 On October 17, 2012, Newton issued a Letter of Warning to plaintiff. The letter 12 explained that plaintiff’s conduct since September 27, 2012 had been unacceptable, and 13 that plaintiff had acted inappropriately by: 14 (1) Requesting a written job description from Ruiz and behaving 15 unprofessionally toward him; 16 (2) Refusing to attend the October 3, 2012 meeting; and 17 (3) Failing to get a leave request approved before departing on October 3, 18 2012. Id. at 2575-77, 4349-50. 19 The Letter of Warning further directed plaintiff to (1) adhere to the expectations in 20 the Letter of Expectations issued in February 2012; (2) cease actions and 21 communications that fellow employees might regard as disruptive or hostile; (3) comply 22 with LLNS’s expectations for EIT employees, and (4) approach future job assignments in 23 a cooperative manner. Id. The Letter of Warning further specified the following: 24 “Refusing to meet with your division management to discuss your job assignments, ignoring clear direction to have a 25 discussion and walking away after repeatedly being given direction to stay is insubordination. This insubordinate 26 behavior is unprofessional, unacceptable and will not be tolerated.” Id. at 2576. 27 1 3. January 2013 – An Independent Reviewer Withdraws After Plaintiff 2 Attempts to Involve Her in His Disputes with Managers 3 On November 28, 2012, Darbee completed a PA of plaintiff for the September 1, 4 2011 to August 31, 2012 period. Id. at 3059-60. Contrary to the typical process of 5 soliciting employee input prior to finalizing a PA, Darbee issued the final 2011-12 PA 6 without first meeting with plaintiff. Id. at 2667. Darbee testified that Telford had written 7 plaintiff’s 2011-12 PA, but, when such draft was received by Newton, Newton directed 8 Darbee to work with Telford and “take another shot” at the PA because Newton “didn’t 9 feel that it adequately represented some of the problems [plaintiff] had had during the 10 year in his performance and behavior.” Id. at 4483. 11 The 2011-12 PA criticized aspects of plaintiff’s technical performance and time 12 management. Id. at 3059-60. The PA further referenced plaintiff’s February 12, 2012 13 Letter of Expectations. Id. The PA stated that plaintiff had failed to meet most of those 14 expectations, stated that plaintiff was not communicating effectively, and criticized plaintiff 15 for opting to communicate work dissatisfaction broadly rather than attempting to resolve 16 the conflict at the lowest level. Id. The PA also omitted “Laser Theory and Operations” in 17 the SKAs (skills, knowledge, and abilities) section, which had been included in plaintiff’s 18 prior PAs. Compare id. 3059-60 with id. 3057-58. Newton acknowledged that “it doesn’t 19 sound plausible” that, in the matter of a year, plaintiff suddenly lost such skill. Id. at 4390. 20 Plaintiff objected to his PA and submitted a memorandum alleging that LLNS’s handling 21 of his PA constituted retaliation for his prior 2011 complaint. Id. 3061-65. 22 In January 2013, Anna Maria Bailey (“Bailey”), a Facilities Operation Manager in a 23 different part of LLNS, was appointed to conduct an Independent Party Review of two 24 grievances filed by plaintiff, including those related to the PA. Id. at 2582. Plaintiff 25 started blind copying Bailey on day-to-day disputes with his managers, despite Bailey’s 26 request that he stop. Id. at 2584-86, 2588-90. On February 15, 2013, Bailey withdrew as 27 a reviewer, claiming that because of plaintiff’s conduct, she could no longer act as a 1 4. March 15, 2013 – LLNS Suspends Plaintiff for Five Days 2 Around January 2013, plaintiff began an assignment for the Joint Acitinide Shock 3 Physics Experimental Facility (“JASPER”). Id. at 3525, 3574. In February 2013, while 4 performing that assignment, plaintiff was instructed to report to Defense Technologies 5 Engineering Division (“DTED”) Superintendent Dan Schumann (“Schumann”) to take 6 inventory for the Weapons and Complex Integration (“WCI”) program in an area requiring 7 Q-security (top secret) clearance. Id. 3569-70, 4354-56, 4447-50. While accounts of 8 plaintiff’s exact response differ, plaintiff refused to complete this assignment at that time, 9 citing the need to complete his ongoing preferential programmatic assignment. Id. at 10 2579, 2967-68, 3569-70, 4356, 4452. In his witness statement, Schumann stated that 11 plaintiff went into Schumann’s office and said, “I’m not going to do this, this work is below 12 my level.” Id. at 2967-68. 13 On February 13, 2013, Darbee attempted to schedule a meeting with plaintiff. 14 Accounts of this attempt differ. Darbee testified that he attempted to meet with plaintiff to 15 discuss the inventory assignment, knocked on plaintiff’s office door, and then knocked 16 harder when plaintiff did not answer. Id. at 4448-49, 2601-03. When plaintiff came to the 17 door, plaintiff informed Darbee that he was taking sick leave and intended to leave. Id. 18 Plaintiff did not recall a delay between Darbee’s knocking on the door and his opening it, 19 and testified that Darbee was banging on the door. Id. at 3579-81. A meeting did not go 20 forward that day. 21 Darbee, Newton, and plaintiff scheduled a meeting for February 15, 2013. Plaintiff 22 purportedly called him “obnoxious and incompetent” and suggested that Darbee was 23 responsible for a colleague’s suicide. Id. at 4447-54. Darby purportedly told plaintiff that 24 plaintiff would begin the inventory assignment after completing the JASPER assignment. 25 Id. at 2579, 4452. At that time, plaintiff did not agree to perform the assignment. Id. at 26 2579, 4452. 4356. According to plaintiff, Darbee also told him, in response to plaintiff’s 27 purported request to work for another manager (Jim Leppien), that “no, I’m going to be 1 Based on plaintiff’s refusal to accept the inventory assignment at that time, 2 avoiding the February 13, 2013 meeting with Darbee, and failure to adhere to the Letter 3 of Expectations, Lane (the Associate Director for Engineering Lane) made a Request for 4 Suspension on February 26, 2013. Id. at 2601-03. On March 15, 2013, LLNS issued 5 plaintiff a five-day suspension. Id. at 2607. 6 5. Summer 2013 – Plaintiff Requests Sensitive Information Concerning 7 LLNS’s High Explosives Application Facility and Makes His Protected 8 Disclosures 9 LLNS contains a High Explosives Application Facility (“HEAF”), which comprises 10 thick-walled metal tanks used to conduct experiments with explosives, and thick windows 11 (known as “port glass”). Id. at 2322, 1812-13. HEAF Facility Manager Brian Cracchiola 12 (“Cracchiola”) testified that on July 10, 2013, plaintiff sent an email to one of Cracchiola’s 13 direct reports, Dmitry Voloshin (“Voloshin”), requesting financial information relating to a 14 project involving the “HEAF second E-Gun.” Id. at 1812-13, 2644-47. Significantly, 15 plaintiff was not assigned to any project involving the HEAF second E-Gun. Id. at 3644. 16 Voloshin brought the request to Cracchiola’s attention and ultimately did not provide 17 plaintiff with the information. Id. at 2644-47, 4052-56. 18 On August 16, 2016, plaintiff emailed Darbee (with Newton and two others cc’ed) 19 proposing, apparently for purpose of some assignment, to replace certain “ignitron 20 switches” with safer “spark gap” switches (that would not rely on mercury, which could 21 cause a hazard if damaged) and do so “using the EBA account.” Id. 3142-3143. Darbee 22 testified that he interpreted this email as raising a financing concern, not a safety 23 concern, because “if you thought this was a really big safety issue, you would say, ‘I want 24 to stop work. I want to pause work. I think [it] is a personnel hazard.’” Id. at 4468. The 25 ALJ later determined that this email qualified as the “spark gap” switch disclosure. Id. at 26 4786-87. 27 On August 30, 2013, during an experiment at the HEAF, the port glass broke and 1 4077-78. No one was exposed to the gas or injured, and Cracchiola immediately 2 convened a team to investigate the incident. Id. at 4076-78. 3 On September 5, 2013, plaintiff emailed Voloshin again for information. Id. at 4 2644-47, 4055-4061. Plaintiff failed to give any material explanation as to the need for 5 the requested information, stating only that he was “purchasing such parts in the near 6 future.” Id. at 2644-47, 4067-68. Cracchiola then sent an email to his own supervisor, 7 Schumann, advising him that plaintiff requested facility sensitive information of his HEAF 8 team. Id. at 2649. In that email, Cracchiola requested that plaintiff cease any such 9 requests and direct any necessary future requests to Cracchiola’s office, rather than to 10 his team. Id. On September 6, 2013, Schumann forwarded Cracchiola’s email to 11 Newton and Darbee, and Darbee conveyed Cracchiola’s request to plaintiff that same 12 day. Id. at 2469, 4473. On September 12, 2013, plaintiff sent Voloshin another email 13 with a series of questions about the port glass that broke during the August 30, 2013 14 experiment. Id. at 2652, 4070. Plaintiff was not assigned to the port glass project. Id. at 15 3657. 16 Around this same time, on September 6, 2013, plaintiff sent Ruiz an email 17 detailing several concerns identified as part of plaintiff’s assignment to evaluate and 18 recommend upgrades to certain safety systems in LLNS’s Building B327. Id. at 3151- 19 3154. The ALJ later determined that this email qualified as the “B327 Disclosure.” Id. at 20 4788-89. 21 On September 16, 2013, Newton and Darbee met with plaintiff to discuss his 22 failure to follow instructions and his continued inappropriate demands of other personnel. 23 Id. at 2654-56, 4474-75. The following day, Darbee sent plaintiff a calendar invitation to 24 schedule a draft 2012-13 PA meeting with him for September 19, 2013. Id. at 2661. 25 Absent confirmation that a “third party” would be in attendance, plaintiff refused to 26 meet with Darbee. Id. at 2661. Earlier that morning, the Associate Director of the 27 Strategic Human Resources Directorate Art Wong (“Wong”) advised plaintiff to meet with 1 the draft and make comments or suggestions before it was finalized. Id. at 2667-68. 2 6. September 20, 2013 through October 10, 2013 – LLNS Terminates 3 Plaintiff’s Employment 4 On September 20, 2013, plaintiff was given a Notice of Intent to Dismiss, which 5 included a memorandum from Associate Director for Engineering Lane to Staff Relations 6 Manager Jennifer Szutu (“Szutu”), recommending dismissal. Id. at 2674-77, 2679-80. 7 Lane’s memorandum cited continued insubordination, misconduct, and poor performance 8 in violation of the Letter of Expectations, Letter of Warning, and notice plaintiff received 9 when he was suspended. Id. at 2674-77. Under LLNS policy, plaintiff submitted a 10 response to his dismissal and was entitled to Disciplinary Review Board review of his 11 dismissal. The board agreed with the termination decision and, on October 16, 2013, 12 LLNS terminated plaintiff. Id. at 2905, 2907, 2909-10. 13 B. Procedural History 14 1. Plaintiff’s Part 708 Complaint and Pre-Rivera I Proceedings 15 Part 708 sets forth a process by which the defendant considers and resolves 16 allegations of retaliation raised by contractor employees. A contractor-employee may 17 initiate this process by filing an administrative complaint (“Part 708 Complaint”) with 18 defendant alleging that he faced retaliation by his employer-contractor for engaging in 19 protected activity. 10 C.F.R. § 708.1. To the extent necessary, the courts details the 20 applicable procedures below. 21 On January 14, 2014, plaintiff filed his Part 708 Complaint. In it, plaintiff alleged 22 that LLNS terminated his employment in retaliation for making certain protected 23 disclosures concerning use of LLNS resources and purported safety hazards at the 24 facility. CAR at 1-7. 25 On September 15, 2014, following assignment of an investigator by defendant’s 26 Office of Hearings and Appeals (“OHA”), id. at 420, OHA dismissed plaintiff’s complaint 27 under Title 10 C.F.R. § 708.5, finding that plaintiff failed to state a claim upon which relief 1 at 584-92. On March 9, 2015, OHA dismissed the appeal. Id. at 642-53. 2 On March 23, 2015, plaintiff filed a petition for secretarial review. In it, plaintiff 3 sought to require OHA to complete its investigation and conduct further proceedings. Id. 4 at 654-55. On August 19, 2016, and as further noted below, OHA vacated its March 9, 5 2015 decision and reinstated the case for further processing. Id. at 862-63. 6 2. Rivera v. Lawrence Livermore National Security, LLC, 4:16-cv-0304- 7 PJH (“Rivera I”) 8 On January 19, 2016, pending plaintiff’s March 23, 2015 petition for secretarial 9 review, plaintiff filed a complaint in this court against defendant, LLNS, defendant OHA, 10 the United States, and the National Nuclear Security Administration (“NNSA”), as well as 11 certain individuals. 4:16-cv-0304-PJH, Dkt. 38 at 2. In his complaint, plaintiff alleged, 12 among other claims, a claim against defendant under the Administrative Procedures Act 13 (“APA”) premised upon a violation of plaintiff’s due process rights. Dkt. 38 at 2. On 14 October 31, 2016, following an amended complaint and multiple motions to dismiss, the 15 court dismissed plaintiff’s action with prejudice except for his APA claim against 16 defendant, allowing plaintiff to “file a new complaint pursuant to the APA challenging 17 OHA’s decision on his administrative complaint once there is a final agency action for this 18 court to review.” Dkt. 68 at 10. 19 3. Defendant’s Agency Action in Response to the Part 708 Complaint 20 Following OHA’s August 19, 2016 order vacating its March 9, 2015 decision, an 21 OHA investigator investigated plaintiff’s Part 708 complaint. The investigator interviewed 22 plaintiff and 17 other witnesses and reviewed documents provided by both LLNS and 23 plaintiff. Id. at 2340-42. On February 17, 2017, the investigator issued its Report of 24 Investigation (“ROI”). Id. at 2295-2342. The ROI analyzed plaintiff’s allegations, 25 concluded that plaintiff failed to satisfy his burden of showing that he engaged in a 26 protected disclosure, and, ultimately, noted that the parties would have an opportunity at 27 a hearing to present additional evidence. Id. at 2329-39. 1 complaint. Id. 4781. As part of that hearing, the ALJ heard live testimony from nine 2 witnesses as well as from plaintiff. Id. at 4781. The hearing also included testimony from 3 additional witnesses through deposition testimony and witness statements. Id. 2505-06. 4 On September 27, 2017, the ALJ issued defendants’ “Initial Agency Decision” 5 (“IAD”), a 30-page decision analyzing the allegations in plaintiff’s complaint, denying the 6 relief that plaintiff sought, and upholding his termination. Id. at 4769-4799. 7 On October 17, 2017, plaintiff appealed the IAD to the OHA Director, id. at 4803- 8 04, thereby exhausting his administrative remedies under Title 10 C.F.R. § 708.32. On 9 December 14, 2017, the OHA director denied the appeal and affirmed the IAD. Id. 4932- 10 42. On December 22, 2017, plaintiff filed a petition for secretarial review. Id. at 4943-44. 11 On September 28, 2018, defendant’s secretary denied plaintiff’s petition for failure to 12 demonstrate extraordinary circumstances under § 708.35(d) and reaffirmed the 13 September 27, 2017 IAD, id. 5241-42, thereby rendering plaintiff’s termination a final 14 agency decision for purpose of judicial review, § 708.35. The instant complaint followed. 15 At core, plaintiff’s motion challenges the reasonableness of the IAD. Rather than 16 detail the IAD’s findings separately, the court will discuss them in its analysis as 17 necessary. 18 DISCUSSION 19 A. Legal Standard 20 In relevant part, Title 5 U.S.C. § 706(2) provides the following: 21 “To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, 22 interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. 23 The reviewing court shall—
24 . . .
25 (2) hold unlawful and set aside agency action, findings, and conclusions found to be— 26 arbitrary, capricious, an abuse of discretion, or otherwise not in 27 accordance with law; 1 (E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the 2 record of an agency hearing provided by statute;
3 . . .
4 In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due 5 account shall be taken of the rule of prejudicial error.” 5 U.S.C. § 706(2). 6 7 As indicated by § 706’s text, a court’s review of the challenged agency action is 8 generally “limited to the administrative record.” Lands Council v. Powell, 395 F.3d 1019, 9 1029 (9th Cir. 2005). A motion for summary judgment may be used to seek judicial 10 review of agency administrative decisions. Nw. Motorcycle Ass'n v. U.S. Dep't of Agric., 11 18 F.3d 1468, 1471 (9th Cir. 1994). 12 While the court generally should grant a motion for summary judgment if “there is 13 no genuine dispute as to any material fact and the movant is entitled to judgment as a 14 matter of law,” Fed. R. Civ. Pro. 56, such standard is inapplicable here because “the role 15 of the court under the APA is not to ‘find facts’ but is limited to reviewing the 16 administrative record.” Alameda Health Sys. v. Centers for Medicare & Medicaid Servs., 17 287 F. Supp. 3d 896, 910-11 (N.D. Cal. 2017). “Thus, the usual standard for summary 18 judgment does not apply.” Id. at 911. 19 Instead, “the function of the district court is to determine whether or not as a matter 20 of law the evidence in the administrative record permitted the agency to make the 21 decision it did. De novo factfinding by the district court is allowed only in limited 22 circumstances . . .” Occidental Eng'g Co. v. I.N.S., 753 F.2d 766, 769 (9th Cir. 1985) 23 (emphasis in the original). Put differently, the court’s role is to review the decision of an 24 administrative agency, which “is itself the finder of fact.” Id. at 770 (“The appellant 25 confuses the use of summary judgment in an original district court proceeding with the 26 use of summary judgment where, as here, the district court is reviewing a decision of an 27 administrative agency which is itself the finder of fact.”). Therefore, summary judgment 1 reasonably have found the facts as it did.” Id. 2 “The ‘scope of review’ provisions of the APA, 5 U.S.C. § 706(2), are cumulative. 3 Thus, an agency action which is supported by the required substantial evidence may in 4 another regard be ‘arbitrary, capricious, an abuse of discretion, or otherwise not in 5 accordance with law.’” Ass'n of Data Processing Serv. Organizations, Inc. v. Bd. of 6 Governors of Fed. Reserve Sys., 745 F.2d 677, 683-84 (D.C. Cir. 1984) (emphasis in the 7 original). As a result, “the distinction between the substantial evidence test and the 8 arbitrary or capricious test is largely semantic.” Id. at 684.2 9 To determine whether final agency action qualifies as arbitrary and capricious 10 within the meaning of § 706(2)(A), the reviewing court “must consider whether the 11 decision was based on a consideration of the relevant factors and whether there has 12 been a clear error of judgment.” Southeast Alaska Conservation Council v. Fed. Highway 13 Admin., 649 F.3d 1050, 1056 (9th Cir. 2011). 14 An agency must articulate a “satisfactory explanation” for its action, there must be 15 “a rational connection between the facts found and the choices made,” the agency's 16 explanation must be “sufficient to permit effective judicial review,” and the reviewing court 17 “should not attempt to make up for deficiencies in the agency's decision.” Nw. Motorcycle 18 Ass'n., 18 F.3d at 1478. While a court “may not supply a reasoned basis for the agency's 19 action that the agency itself has not given,” a court “can uphold an agency decision of 20 less than ideal clarity if the agency's path may reasonably be discerned.” Id. 21 2 In his opening brief’s analysis, plaintiff repeatedly refers to defendant’s final agency 22 action as “unsupported by substantial evidence.” Dkt. 29 at 15. In his brief’s Standard of Review section, however, plaintiff cites the “arbitrary and capricious” standard of review 23 set forth at Title 5 U.S.C. § 706(2)(A) as applicable here. Id. at 9-10. In its briefing, defendant states that there is “no meaningful distinction” between § 706(2)(A)’s “arbitrary 24 and capricious” standard and § 706(2)(E)’s “unsupported by substantial evidence” standard. Dkt. 31 at 18-19 n. 5. When questioned about the applicable standard at oral 25 argument, plaintiff’s counsel acknowledged that, for purpose of this action, the “substantial evidence” and “arbitrary and capricious” standard are the same. Rough Hr. 26 Tr. (“It’s the same thing.”). Given that the parties agree about the material features of this court’s review, and plaintiff fails to show how the action he sues upon satisfies § 27 706(2)(E)’s additional requirements, the court will refer to § 706(2)(A)’s arbitrary and 1 With the above requirements in mind, the Ninth Circuit has nonetheless 2 characterized the arbitrary and capricious standard as “highly deferential, presuming the 3 agency action to be valid” and actually “requires affirming the agency action if a 4 reasonable basis exists for its decision.” Kern Cty. Farm Bureau v. Allen, 450 F.3d 1072, 5 1076 (9th Cir. 2006) (emphasis added). “Under such deferential review,” the reviewing 6 court “may not substitute [its] judgment for that of the agency.” Id. Relatedly, the Ninth 7 Circuit has explained that, under the “substantial evidence” standard, courts “must affirm” 8 an agency’s decision “unless the evidence is so compelling that no reasonable fact finder 9 could fail to find the facts were as [plaintiff] alleged.” Nakamoto v. Ashcroft, 363 F.3d 874, 10 881-82 (9th Cir. 2004). 11 As this court has previously stated, then, “[s]ummary judgment thus serves as the 12 mechanism for deciding, as a matter of law, whether the agency action is supported by 13 the administrative record and otherwise consistent with the APA standard of review.” 14 Alameda Health Sys., 287 F. Supp. 3d at 911. 15 B. Analysis 16 1. The ALJ Reasonably Concluded that Clear and Convincing Evidence 17 Showed that LLNS Would Have Terminated Plaintiff Absent His 18 Protected Disclosures 19 When plaintiff filed his Part 708 complaint, Title 10 C.F.R. § 708.5 provided that 20 the employee of a contractor of the United States Department of Energy “may file a 21 complaint against your employer alleging that you have been subject to retaliation for . . . 22 (a) Disclosing to . . . your employer . . . information that you reasonably believe reveals . . 23 . (1) A substantial violation of a law, rule, or regulation; (2) A substantial and specific 24 danger to employees or to public health or safety; or (3) Fraud, gross mismanagement, 25 gross waste of funds, or abuse of authority.” 10 C.F.R. § 708.5 (Eff. Aug. 23, 2013 to 26 Sept. 30, 2019). 27 For purpose of § 708.5, “retaliation” means the following: similar action) taken by a contractor against an employee with 1 respect to employment (e.g., discharge, demotion, or other negative action with respect to the employee's compensation, 2 terms, conditions, or privileges of employment) as a result of the employee’s disclosure of protected information, 3 participation in proceedings, or refusal to participate in activities described in § 708.5 of this subpart. 10 C.F.R. § 4 708.2 (Eff. Aug. 23, 2013 to Sept. 30, 2019). 5 To evaluate a Part 708 Complaint, an administrative law judge applies the 6 following burden-shifting framework outlined at § 708.29: 7 “The employee who files a complaint has the burden of establishing by a preponderance of the evidence that he or she 8 made a disclosure, participated in a proceeding, or refused to participate, as described under § 708.5, and that such act was 9 a contributing factor in one or more alleged acts of retaliation against the employee by the contractor. 10 . . . 11 Once the employee has met this burden, the burden shifts to 12 the contractor to prove by clear and convincing evidence that it would have taken the same action without the employee's 13 disclosure, participation, or refusal.” 10 C.F.R. § 708.29 (Eff. Aug. 23, 2013 through Sept. 30, 2019). 14 15 The Supreme Court generally recognizes “three standards of proof . . . ranging 16 from the ‘preponderance of the evidence’ standard employed in most civil cases, to the 17 ‘clear and convincing’ standard reserved to protect particularly important interests in a 18 limited number of civil cases, to the requirement that guilt be proved ‘beyond a 19 reasonable doubt’ in a criminal prosecution.” California ex rel. Cooper v. Mitchell Bros. 20 Santa Ana Theater, 454 U.S. 90, 93 (1981). The Ninth Circuit has described the “clear 21 and convincing” evidence standard as “requir[ing] more than proof by a preponderance of 22 the evidence and less than proof beyond a reasonable doubt.” Singh v. Holder, 649 F.3d 23 1161, 1168 (9th Cir. 2011). 24 In the whistleblowing context, the Federal Circuit in Kalil v. Dep't of Agric., 479 25 F.3d 821 (Fed. Cir. 2007) specified three non-exhaustive factors to determine whether an 26 employer has shown by clear and convincing evidence that it would have taken an 27 alleged act of retaliation against an employee absent such employee’s protected conduct. “1. The strength of the agency's reason for the personnel action 1 excluding the whistleblowing;
2 2. The strength of any motive to retaliate for the whistleblowing; and 3 3. Any evidence of similar action against similarly situated 4 employees for the non-whistleblowing aspect alone.” Id. at 724. 5 Although the Ninth Circuit has not expressly adopted these factors, it has cited 6 Kalil with approval for a different proposition. Duggan v. Dep't of Def., 883 F.3d 842, 847 7 (9th Cir.), cert. denied, 139 S. Ct. 341 (2018). As a result, the court will treat these 8 factors as persuasive. 9 Here, when applying the § 708.29 burden-shifting framework, the ALJ reasonably 10 concluded that LLNS demonstrated by clear and convincing evidence that—absent 11 plaintiff’s protected spark gap switch and B327 disclosures—it would have terminated 12 plaintiff. The ALJ grounded that conclusion in substantial documentary and testimonial 13 evidence showing plaintiff’s ongoing misconduct and failure to follow basic directions 14 from workplace supervisors. 15 a. The ALJ Reasonably Determined that LLNS Had Sufficient Non- 16 Whistleblowing Reasons to Terminate Plaintiff 17 Here, when considering the strength of LLNS’s reason for terminating plaintiff, the 18 ALJ addressed each of LLNS’s proffered justifications, including plaintiff’s purported (1) 19 poor performance, (2) misconduct, and (3) insubordination. The ALJ recognized 20 substantial testimonial evidence from other LLNS personnel describing the impressive 21 quality of plaintiff’s technical work, as well as plaintiff’s 2008-09, 2009-10, 2010-11 PAs, 22 characterizing each as “uniformly positive.” Id. at 4791. The ALJ even noted that Darbee 23 testified that plaintiff did “pretty good work.” Id. Given such positive technical reviews, 24 the ALJ reasonably distinguished plaintiff’s negative reviews on his 2011-12 and 2012-13 25 PAs as “largely due to [plaintiff’s] allegedly inappropriate and insubordinate behavior.” Id. 26 Here, the record supports the ALJ’s finding that plaintiff acted inappropriately and 27 insubordinately because of (1) his communications, (2) refusing to meet with managers, 1 (3) refusing to accept certain assignments, and (4) failure to follow the requirements set 2 forth in his letters of expectations and warning. Id. 4791-98. The court analyzes the 3 reasonableness of each rationale in turn below. 4 i. Evidence of Plaintiff’s Communications Support the 5 ALJ’s Finding of Insubordination 6 Here, the ALJ reasonably concluded that plaintiff acted insubordinately through his 7 communications. As an initial matter, plaintiff cannot dispute the contents of his 8 November 29, 2011, January 30, 2012, and October 3, 2012 emails, each which is 9 shown by the documentary record. CAR at 2520 (November 29, 2011); Id. at 2521 10 (January 30, 2012); Id. at 2540 (October 3, 2012 email). The substance of such emails 11 shows some combinations of poor judgment and disrespect, particularly the email aimed 12 at the PhD credentials of a manager, Bowen. Moreover, despite plaintiff’s apparent 13 position that his emails were not distracting, there is no reasonable dispute that mass 14 emails at a place of employment are workplace distractions, particularly when such an 15 email airs a management grievance in which a majority of the recipients are not involved. 16 With respect to the February 15, 2013 in-person meeting between plaintiff, 17 Darbee, and Newton, the ALJ assessed each’s account of that meeting and reasoned 18 that Darbee’s account (that plaintiff called him “obnoxious and incompetent,” among other 19 things) was more credible. Id. at 4794-95. Such determination is particularly appropriate 20 given Darbee’s contemporaneous February 15, 2013 email reciting plaintiff’s statement in 21 that meeting that “I’ve spoken to people all over the lab about you (me) [Darbee] and 22 everyone knows you’re obnoxious and incompetent.” Id. at 2579. Given the above, the 23 ALJ reasonably concluded that plaintiff’s workplace communications could form a 24 cognizable basis supporting LLNS’s misconduct justification. 25 ii. Evidence of Plaintiff’s Refusal to Meet with Managers 26 Support the ALJ’s Finding of Insubordination 27 Here, the ALJ reasonably found that plaintiff acted insubordinately by his refusal to 1 own emails. CAR at 2540 (October 3, 2012 mass email stating: “I declined the meeting 2 for the moment”) (emphasis added); id. at 2661 (September 17, 2013 email in response 3 to Darbee’s 2012-13 draft PA discussion stating: “If we do meet, I am requesting 4 confirmation from a third party to also be in attendance. . . . Either way, we are in a 5 holding pattern for now. Please email my draft PA today for my review so that I can 6 best prepare and respond to its contents.”) (emphasis added). Given such documentary 7 evidence, the ALJ did not need to resolve any credibility judgment concerning competing 8 testimonial accounts of plaintiff’s refusals to meet on October 3, 2012 and September 17, 9 2013. Plaintiff’s emails speak for themselves. That said, the ALJ did consider such 10 competing accounts and reasonably refused to adopt plaintiff’s version or post-hoc 11 excuses for such departures. Id. at 4795-96. 12 With respect to plaintiff’s purported refusal to meet on February 13, 2013, plaintiff 13 himself fails to refute that he left his office when Darbee knocked on his door. Id. at 3581 14 (Q: “But in any event, you saw him at the office and you said, I’m going home sick and 15 you left, correct? You didn’t want to meet with him that day?” A: “I said I was sick. Sick 16 leave is a normal part of approved lab leave.”). Given such failure, as well as the 17 undisputed fact that the plaintiff and Darbee did meet two days later (February 15, 2013), 18 the ALJ reasonably treated plaintiff’s conduct on February 13, 2013 as a third instance of 19 his refusal to meet with his managers. 20 Plainly, regardless of its convenience, meeting with one’s supervisor is a 21 necessary condition of employment. As stated above, the ALJ found numerous 22 instances where plaintiff failed that requirement. As a result, the ALJ reasonably 23 concluded that plaintiff’s refusals to meet with his supervisors could form a cognizable 24 basis supporting LLNS’s insubordination justification. 25 iii. Evidence of Plaintiff’s Refusal of Assignments Supports 26 the ALJ’s Finding of Insubordination 27 Here, the ALJ reasonably found that plaintiff acted insubordinately by his refusals 1 by the record. Significantly, documentary evidence shows plaintiff’s animus toward the 2 September 27, 2012 MED evaluation assignment. CAR at 2537 (September 27, 2012 3 email stating: “Instead, effective this Monday 10-1-12, I was instructed to report to a 4 NSED contact for a poorly defined 11th hour assignment without my prior input or 5 consent.”) (emphasis added); id. at 2541 (October 3, 2012 mass email stating: “The MED 6 assignment is an undefined farce.”) (emphasis added). Given those prior statements, 7 the ALJ reasonably rejected plaintiff’s competing account of his effort to learn more about 8 that assignment and instead construe plaintiff’s October 2, 2013 “safety pause” (on the 9 systems relating to that assignment) as a tacit refusal to accept it. Id. at 4796-97. 10 The ALJ also reasonably found that plaintiff refused the February 2013 inventory 11 assignment. Plaintiff’s resistance to such assignment is shown by contemporaneous 12 documentary evidence. In his February 15, 2013 email memorializing his meeting with 13 plaintiff, Darbee recorded the following: 14 “Moving on, I then told [plaintiff] that I had spoken with Albert Lee and that his funded assignment would run through next 15 week, at which time Albert would not need him. I explained to [plaintiff] that he was expected to report to Dan Schuman the 16 following week to work in the WCI inventory efforts in the B131 High Bay. I asked him if he understood this direction and he 17 said we’ll see what my doctor says. I asked if he had any medical restriction I was not aware of and he told me, “We’ll 18 see. Once I describe all the undo stress your [sic] causing, my doctor may decide differently. We’ll see.” CAR at 2579 19 (emphasis added). 20 In light of this contemporaneously recorded statement, the ALJ reasonably 21 rejected plaintiff’s competing account (that he did not refuse this assignment but instead 22 declined to begin it until he had finished his preferential programmatic work with 23 JASPER) to instead construe plaintiff’s conduct toward it as a refusal. Such construction 24 is particularly well-founded given that Darbee’s February 15, 2013 email also shows that 25 the JASPER manager would not need plaintiff “next week,” at which point plaintiff could 26 begin the inventory assignment. Id. at 2579. 27 Similar to meeting with one’s supervisor, accepting assignments (including 1 reasonably concluded that plaintiff’s refusals to accept the September 27, 2012 MED and 2 February 2013 inventory assignments could form another basis supporting LLNS’s 3 insubordination justification. 4 iv. Plaintiff’s Failure to Satisfy the Letter of Expectations and 5 Letter of Warning Supports the ALJ’s Finding of 6 Misconduct and Insubordination 7 Here, the ALJ found that plaintiff acted inappropriately and insubordinately by his 8 failure to follow the requirements set forth in the letter of expectations and letter of 9 warning. While the ALJ premised this finding upon the above-referenced shortcomings in 10 plaintiff’s conduct, CAR at 4798, such finding was still reasonable. Significantly, plaintiff’s 11 failure to follow the conditions outlined in those letters—which included that plaintiff 12 “attend all meetings he was directed to attend” (February 7, 2012 Letter of Expectations), 13 “stop demanding actions from others that he had no authority to demand” (February 7, 14 2012 Letter of Expectations), and “approach future job assignments in a cooperative 15 manner” (October 17, 2012 Letter of Warning)—exacerbates the insubordinate nature of 16 his predicate misconduct because such letters gave plaintiff specific notice of 17 shortcomings in his workplace behavior, which he nonetheless failed to correct. 18 Moreover, in response to plaintiff’s failure to follow the letter of warning, LLNS 19 issued plaintiff a five-day suspension on March 15, 2013. Id. at 2607. Given such 20 suspension, the ALJ reasonably adopted LLNS’s explanation that, short of termination, it 21 had “exhausted every level” of disciplining plaintiff. Id. at 4798. Taken together with his 22 predicate misconduct and insubordination, plaintiff’s violations of the specific instructions 23 contained in the Letter of Expectations and Letter of Warning further support that the ALJ 24 reasonably found that LLNS demonstrated by clear and convincing evidence that, 25 regardless of plaintiff’s protected disclosures, it would have terminated plaintiff’s 26 employment because of his pattern of misconduct and insubordination. 27 1 b. The ALJ Reasonably Considered the Second and Third Kalil 2 Factors 3 Here, the ALJ reasonably concluded that the second and third Kalil factors do not 4 undermine his conclusion that, under the first Kalil factor, clear and convincing evidence 5 shows that LLNS would have terminated plaintiff absent his protected disclosures. With 6 respect to Kalil’s second factor, the ALJ found that there was “little evidence” of a motive 7 for Lane or Darbee to retaliate against plaintiff “for making the protected disclosures.” Id. 8 at 4798. Significantly, as the ALJ pointed out, neither Lane nor Darbee “were directly 9 implicated” in such disclosures, id., and, in his briefing, plaintiff failed to identify any such 10 evidence brought to the attention of but disregarded by the ALJ. Moreover, while the ALJ 11 recognized “abundant evidence of personal animus between Darbee and Mr. Rivera,” he 12 found that such animosity “appears to stem from Mr. Rivera’s insubordinate behavior, not 13 his status as a whistleblower.” Id. Such finding is reasonable given the circumstances at 14 hand and, in his briefing, plaintiff failed to specify any evidence brought to the attention of 15 but disregarded by the ALJ that directly contradicts any such finding. 16 With respect to Kalil’s third factor, the ALJ observed that LLNS failed to proffer any 17 evidence that similar action had been taken against similarly situated employees. Id. at 18 4799. Defendant did not dispute the accuracy of that observation. Nonetheless, given 19 the ALJ’s finding with respect to the first and second Kalil factors, the court concludes 20 that the ALJ reasonably concluded that such factors supported a clear and convincing 21 showing that LLNS would have terminated plaintiff absent his protected disclosures. 22 c. Plaintiff’s Specific Critiques of the ALJ’s Analysis Do Not 23 Establish that He Acted Arbitrarily or Capriciously 24 Lastly, in his briefing, plaintiff identifies numerous purported shortcomings in the 25 ALJ’s analysis. Such shortcomings primarily include the following: 26 • LLNS’s explanation that plaintiff engaged in misconduct and insubordination 27 derive from Darbee, and his testimony was not corroborated by other 1 • The other witnesses who testified in support of firing plaintiff were 2 managers with no personal knowledge of plaintiff’s purportedly poor 3 performance and misconduct. Id. at 11, 15-17. 4 • The ALJ ignored evidence of the following: 5 o Ruiz “praised” plaintiff. Id. at 12. 6 o Darbee altered plaintiff’s 2011-12 PA and improperly omitted positive 7 reviews. Id. at 13. 8 Boiled down, plaintiff’s critiques dispute how the ALJ weighed the evidence. In 9 this motion, “the function of the district court is to determine whether or not as a matter of 10 law the evidence in the administrative record permitted the agency to make the decision it 11 did. Occidental Eng'g Co., 753 F.2d at 769. Plaintiff’s specific evidentiary critiques do not 12 alter this court’s determination that the ALJ acted reasonably when concluding that, 13 under the above-referenced Kalil factors, clear and convincing evidence shows that LLNS 14 would have terminated plaintiff absent his protected disclosures. Indeed, despite 15 plaintiff’s disputes with how the ALJ weighed specific testimonial evidence, the 16 administrative record includes ample documentary evidence—including various emails 17 by plaintiff himself—that supports the ALJ’s various findings that plaintiff acted 18 inappropriately in his workplace interactions. Such findings formed the basis for the 19 ALJ’s ultimate conclusion concerning plaintiff’s termination. As a result, plaintiff’s specific 20 credibility related disputes aside, the ALJ did not act arbitrarily or capriciously when 21 finding in favor of LLNS on plaintiff’s Part 708 complaint. 22 2. Plaintiff Cannot Challenge His Termination on Any Purported First 23 Amendment Ground 24 Distinct from his challenge to the ALJ’s decision under the arbitrary and capricious 25 standard, plaintiff challenges that decision under the First Amendment. Dkt. 29 at 21 26 (“LLNS, A Federal State Actor, Is Prohibited from Punishing an Employee for Exercise of 27 First Amendment Free Speech . . . Communications that come within the scope of the 1 adverse action against an employee of a public agency or state actor.”); Dkt. 33 at 4-9. 2 In his briefing and at oral argument, plaintiff failed to articulate how any such purported 3 constitutional violation related to his complaint’s underlying Title 5 U.S.C. § 706 claim (if 4 at all). That failure aside, it appears there are two ways of understanding plaintiff’s First 5 Amendment arguments. Analyzed below, neither is persuasive. 6 a. Plaintiff’s First Conceivable Theory of a First Amendment 7 Violation Fails 8 First, plaintiff appears to be alleging a Bivens claim for violation of his First 9 Amendment rights because LLNS terminated his employment in response to his 10 protected disclosures. This construction has numerous issues. Significantly, plaintiff 11 failed to provide any indication that he exhausted his administrative remedies concerning 12 any such claim and, based on the IAD and Part 708 Complaint, it appears plaintiff has, in 13 fact, failed to do so. Additionally, in his complaint in this action, plaintiff requests only 14 judicial review of the IAD and fails to allege any Bivens claims, much less refer to a First 15 Amendment violation. Plainly, any attempt by plaintiff to belatedly add such a claim in his 16 briefing at this stage in the litigation is improper. As a result, to the extent plaintiff’s First 17 Amendment argument attempts to allege a Bivens claims, such attempt fails. 18 b. Plaintiff’s Second Conceivable Theory of a First Amendment 19 Violation Fails 20 Second, plaintiff appears to be asserting that the ALJ based his decision on a 21 justification barred by the First Amendment. Under this theory, plaintiff’s mass emails 22 qualify as protected speech under the First Amendment. A fortiori, the theory goes, such 23 communications may not form the basis for plaintiff’s termination. 24 While this construction navigates around the prudential concerns troubling the first 25 construction noted above, it does not change the validity of the ALJ’s decision. 26 Significantly, to compel this construction, plaintiff must show that LLNS took state action 27 when terminating him. When asked at oral argument, plaintiff identified two theories of 1 “There are four ways to show state action. . . . Which of the four are you arguing applies 2 here?” A: “The governmental nexus as well as joint action.”). In support of each of these 3 theories, plaintiff relies heavily upon LLNS’s purported prior partnership with the 4 University of California (“UC”). Dkt. 29 at 21. Plaintiff failed to show that LLNS took state 5 action under either doctrine. 6 i. Plaintiff Failed to Establish Joint Action by the State and 7 LLNS 8 Under the joint action doctrine, courts “consider whether the state has so far 9 insinuated itself into a position of interdependence with the private entity that it must be 10 recognized as a joint participant in the challenged activity. This occurs when the state 11 knowingly accepts the benefits derived from unconstitutional behavior.” Kirtley v. Rainey, 12 326 F.3d 1088, 1092 (9th Cir. 2003). 13 Here, plaintiff failed to show or explain how his termination qualifies as state action 14 under this test. Significantly, plaintiff failed to proffer evidence showing that either 15 California or the federal government has “so far insinuated itself into a position of 16 interdependence” with LLNS for purpose of his termination—much less that it “knowingly 17 accepted” the benefits of his purportedly unconstitutional termination. Plaintiff’s vague 18 and unsubstantiated references to the UC and the Department of Energy’s relationship 19 with LLNS at the Livermore Lab (Dkt. 29 at 21-23) do not satisfy the required showing. 20 As a result, the joint action doctrine does not support a finding of the state action 21 necessary to substantiate the second construction of plaintiff’s First Amendment 22 challenge. 23 ii. Plaintiff Failed to Show a Nexus Between LLNS and the 24 State 25 “Arguably the most vague of the four approaches” recognized by the Ninth Circuit 26 for determining state action, the government nexus doctrine “asks whether there is such 27 a close nexus between the state and the challenged action that the seemingly private 1 Here, plaintiff similarly failed to show or explain how his termination qualifies as 2 state action under this test. Significantly, plaintiff failed to proffer any evidence showing 3 the government’s involvement in his termination. As a result, the government nexus 4 doctrine does not support a finding of the state action necessary to substantiate the 5 second construction of plaintiff’s First Amendment challenge. 6 Independent of the analysis in Section (2) above, even if the court were to find that 7 LLNS took state action when terminating plaintiff (and unconstitutionally did so on the 8 basis of his assumedly protected emails), such finding does not disturb the separate 9 conduct-related justifications for plaintiff’s termination. As detailed in Section (1)(a), the 10 ALJ reasonably found by clear and convincing evidence that LLNS properly terminated 11 plaintiff because of his refusals to meet with his supervisors, his refusals to accept 12 assignments, and his failure to follow the Letters of Expectation and Warning, and that it 13 would have done so absent plaintiff’s protected disclosure. In short, plaintiff’s First 14 Amendment challenge—even if valid—would not alter this court’s prior conclusion that 15 the ALJ did not act arbitrarily or capriciously by resting his decision, in part, upon an 16 “unconstitutional” justification for plaintiff’s termination. 17 CONCLUSION 18 For the above reasons, the court DENIES plaintiff’s motion and GRANTS 19 defendant’s motion. 20 IT IS SO ORDERED. 21 Dated: March 30, 2020 22 /s/ Phyllis J. Hamilton PHYLLIS J. HAMILTON 23 United States District Judge
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