Montaño settled case to preserve lab worker rights

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Whistleblower: Auditor feared protections would be obliterated

By Carol A. Clark

Editor’s note: This is the second of a three part series.

A major reason Chuck Montano said that he decided to settle his complaint against the Los Alamos National Laboratory, “besides the fact that it had dragged on for over five years,” was because of the judge assigned to the case.

“Sen. Pete Domenici, a big champion of the lab, nominated Judge Judith Herrera to the federal bench and she has a reputation of looking unfavorably on plaintiffs challenging the lab,” Montano said. “Most recently, she ruled against the Los Alamos Study Group on their Environmental Impact Study request related to the CMRR complex. The lab in my case, through it’s attorneys (Rodey Law Firm) had already gotten this judge to rule in their favor on a motion that would have made it easier for LANL to terminate employees if they had at any point in their employment history signed off on a settlement of a prior claim against the lab.”

Montano had done so previously, regarding the Reduction In Force (RIF) suit he’d filed in the mid 1990s.

“The U.S. Department of Energy had concluded that I had, in fact, been subject to retaliation and it was that issue that I would later settle – for a nominal amount and assurance from the lab that it would stop raising roadblocks to my advancement at LANL,” he said. “That settlement agreement is what the lab then used against me in my whistleblower  retaliation complaint, claiming that I could no longer challenge the lab for retaliation because of it. It was ludicrous, and totally false that the settlement had relieved the lab of any future claims for retaliation, but Judge Herrera actually ruled in LANL’s favor on that point.”

Montano’s attorneys filed an appeal with the 10th Circuit Court, but he said that given the “conservative leaning of the appeals court and the influence of Domenici in the matter,” they felt it was likely they’d end up having to go all the way to the Supreme Court.

Having battled five years of litigation already, the case would probably have been tied up for several more years, he said.

“I would have been inclined to fight this ruling for as long as it took except for the fact that if it went against me, it would mean the complete dismantling of employee protections not only at Los Alamos, but throughout the entire DOE Complex,” Montano said.

“For me, that would have constituted a major defeat for workers rights, and would essentially have rendered my two decades of fighting for workers rights a total waste of time and effort, not to mention set workers back decades with respect to whistleblower protection.”

As it is, Montano said, whistleblower protection is largely a “hollow promise” at the lab, but his case could have ended up “killing it entirely” given the “anti-labor bias of the federal judicial system, and particularly the 10th Circuit and Supreme Court levels.” 

“So while LANL, DOE and UC officials were testifying before Congress in February and March of 2003 that they protected whistleblowers and expressed their dismay at how Glenn Walp and Steve Doran had been treated at Los Alamos, they were actively utilizing my case as a way to establish a precedent in the federal court that would have effectively dismantled any semblance of whistleblower protection throughout the DOE complex,” Montano said.

“Literally, at the very time Congress was being misled in this regard, these motions were in play to destroy whistleblower protections within the DOE Complex and my case was the case that was set to do that. This was how I personally came to the decision that it was time to settle if the opportunity were to present itself.”

Editor’s note: LANL officials have declined to comment since Montano’s book has not been published yet.