Harrington v. Aggregate Industries-Northeast Region, Inc.
668 F.3d 25
| 1st Cir. | 2012Background
- Aggregate supplied concrete for Boston's Big Dig and allegedly substituted substandard material.
- Harrington and Finney filed a sealed FCA qui tam action; government intervened and settled for millions; relator Harrington received a share.
- A few days after Harrington signed the settlement, Aggregate terminated him for refusing a drug test.
- Harrington claimed retaliation for whistleblowing; district court granted summary judgment for Aggregate on retaliation claim as to Harrington.
- This First Circuit opinion adopts a McDonnell Douglas burden-shifting framework for FCA retaliation and analyzes pretext and causation on a record view favoring Harrington.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FCA retaliation uses McDonnell Douglas | Harrington—framework applies as in conventional retaliation cases. | Aggregate—no need for McDonnell Douglas; different statutory scheme. | FCA retaliation is amenable to McDonnell Douglas framework. |
| Prima facie retaliation and causation proof | Evidence shows knowledge, protected activity, and close temporal proximity. | No sufficient causal link or prima facie case as to Harrington. | Prima facie case shown; causation near sign-and-terminate timing supports retaliation inference. |
| Pretext and whether proffered reason is pretextual | Irregular drug-testing process and timing support pretext. | Refusal to submit to follow-up test is legitimate nonretaliatory reason. | Record viewed in total raises triable issue on pretext and retaliatory motive. |
| Effect of the release under Eck v. Godbout | Retaliation claim framed by termination occurs after release; release not bar. | Release bars claims arising from underlying incidents. | Release does not bar Harrington's termination-based retaliation claim; timely termination after release matters. |
| Summary judgment propriety | Record contains numerous inconsistencies and timing suggesting trial-worthy issues. | Record supports no genuine dispute and Aggregate is entitled to judgment as a matter of law. | Summary judgment improper; remand for trial on retaliation claim. |
Key Cases Cited
- Mann v. Heckler & Koch Def., Inc., 630 F.3d 338 (4th Cir.2010) (McDonnell Douglas framework applied to retaliation claims)
- Maturi v. McLaughlin Research Corp., 413 F.3d 166 (1st Cir.2005) (retaliation standards in First Circuit context)
- Mesnick v. Gen. Electric Co., 950 F.2d 816 (1st Cir.1991) (pretext framework in retaliation; exchange of burden-shifting roles)
- Collazo v. Bristol-Myers Squibb Mfg., Inc., 617 F.3d 39 (1st Cir.2010) (pretext and retaliatory animus as jury questions after prima facie case)
- Hodgens v. Gen. Dynamics Corp., 144 F.3d 151 (1st Cir.1998) (pretext and timing can create triable issues in retaliation cases)
- Calero-Cerezo v. U.S. Dep't of Justice, 355 F.3d 6 (1st Cir.2004) (temporal proximity and protected activity considerations)
- Karvelas v. Melrose-Wakefield Hospital, 360 F.3d 220 (1st Cir.2004) (pre-litigation activity and protection scope under FCA)
- Estate of Hevia v. Portrio Corp., 602 F.3d 34 (1st Cir.2010) (summary-judgment standards and record review in the First Circuit)
- Avery v. Hughes, 661 F.3d 690 (1st Cir.2011) (summary judgment de novo; record viewed favorably to nonmovant)
- Ruiz v. Posadas de San Juan Assocs., 124 F.3d 243 (1st Cir.1997) (retaliation and evidentiary standards in First Circuit context)