668 F.3d 25 (1st Cir. 2012), 11-1511, Harrington v. Aggregate Industries Northeast Region, Inc.

Docket Nº:11-1511.
Citation:668 F.3d 25
Opinion Judge:SELYA, Circuit Judge.
Party Name:Joseph HARRINGTON, Plaintiff, Appellant, v. AGGREGATE INDUSTRIES-NORTHEAST REGION, INC., Defendant, Appellee.
Attorney:Robert S. Sinsheimer, with whom Lauren Thomas and Sinsheimer & Associates were on brief, for appellant. Donald W. Schroeder, with whom Kristen S. Scammon, Matthew D. Levitt, and Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. were on brief, for appellee.
Judge Panel:Before BOUDIN, SELYA and STAHL, Circuit Judges.
Case Date:February 07, 2012
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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668 F.3d 25 (1st Cir. 2012)

Joseph HARRINGTON, Plaintiff, Appellant,



No. 11-1511.

United States Court of Appeals, First Circuit.

February 7, 2012

Heard Jan. 9, 2012.

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[Copyrighted Material Omitted]

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Robert S. Sinsheimer, with whom Lauren Thomas and Sinsheimer & Associates were on brief, for appellant.

Donald W. Schroeder, with whom Kristen S. Scammon, Matthew D. Levitt, and Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. were on brief, for appellee.

Before BOUDIN, SELYA and STAHL, Circuit Judges.

SELYA, Circuit Judge.

The " Big Dig" is a massive highway project, built largely with federal funds, which has transformed vehicular travel in the city of Boston. Defendant-appellee Aggregate Industries-Northeast Region, Inc. (Aggregate) supplied concrete needed to construct the project. On various occasions, Aggregate surreptitiously substituted substandard material for the concrete required by its contract specifications.

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Certain Aggregate employees, including plaintiff-appellant Joseph Harrington, learned of this chicanery and brought a sealed qui tam action against Aggregate pursuant to the False Claims Act (FCA), 31 U.S.C. §§ 3729-3733. Eventually, the federal government intervened, see id. § 3730(b)(2), and settled the case for several million dollars. The appellant received a percentage of the settlement proceeds. See id. § 3730(d).

A few days after the appellant had signed the settlement agreement in the qui tam action, Aggregate cashiered him. It premised the dismissal on the appellant's refusal to take a drug test. The appellant sued, asserting that Aggregate had stacked the deck, that the stated reason for discharging him was pretextual, and that his ouster was in retaliation for his whistleblowing activities. The district court granted summary judgment in favor of Aggregate, and the appellant now seeks review of that ruling.

As a matter of first impression, we apply a burden-shifting analysis to this FCA retaliation claim. Then, after careful consideration of a scumbled record, we conclude that the circumstances of the appellant's firing are open to legitimate question and that the record, viewed as a whole and in the light most favorable to the appellant, does not warrant the entry of summary judgment. Accordingly, we vacate the order appealed from and remand for further proceedings.


We sketch the facts and travel of the case, reserving more exegetic detail for our analysis of the issues on appeal. Aggregate supplied large amounts of concrete needed for the construction of the Big Dig. The concrete was supposed to meet certain specifications, and Aggregate pledged that all of its product did. But the appellant (whom Aggregate employed as a truck driver) and others came to doubt this pledge; they insisted that Aggregate frequently cut corners and provided an inferior product.

In June of 2005, the appellant, along with a fellow driver (Donald Finney), filed a qui tam action in the United States District Court for the District of Massachusetts.1 Their complaint named Aggregate Industries, Inc. and several of its subsidiaries as respondents and alleged multiple FCA violations.

The qui tam action proceeded under seal, see id. § 3730(b)(2), and both the appellant and Finney continued working for Aggregate. The seal eventually leaked and, in March of 2007, Aggregate management became aware of the identities of the relators.

As a result of a slowdown in construction activity, the appellant did not work during early 2007. He briefly returned in the spring but underwent a major dental procedure that resulted in more time away from his job. By July, he was physically fit and ready to resume his duties.

Aggregate scheduled the appellant to drive on July 20. According to the appellant, a company representative said " that [he] needed a ‘ return to work’ physical and drug test." The appellant disputed this precondition, citing his union contract. Aggregate did not press the matter. It nonetheless continued to insist upon a drug test, this time saying that the appellant was required to undergo such a procedure because he had tested positive for cocaine in 2005.

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The appellant again objected, arguing that he had completed his probationary period and was no longer subject to follow-up drug testing on account of the 2005 incident. After the union's business agent interceded, Aggregate backed down and told the appellant to report for work as scheduled.

The appellant arrived at the yard on July 20. A supervisor, John Arsenault, informed him that his name had appeared on a list, generated by a third-party testing firm, for random drug testing and that he had to provide a urine sample. The appellant produced a four-ounce sample for examination by the testing firm. He then proceeded with his normal duties.

When the appellant came to the yard on July 25, he was confronted by two members of management (Frank Bradley and Steve Mikolop). Bradley related that the appellant's urine sample had yielded an inconclusive result (" negative dilute" ) and that he needed to submit to a second drug test.

Standard practice called for urine specimens to be " split" into two parts so that one split could be tested and the other held in reserve. Rather than acquiescing to the new test, the appellant asked to have the unused " split" tested. Bradley told him that the split was lost and that he could either take the follow-up test or leave the property. The appellant declined to submit to a retest and was not allowed to drive.

At around this same time, the government, negotiating without having formally intervened, reached a settlement of the claims asserted in the qui tam action. As part of the paperwork needed to wrap up the settlement, the appellant— two days after he had refused to take the new drug test— signed a settlement agreement that compensated him for his role as a relator and released any existing claims. On that same day, Aggregate sent the appellant a letter stating that his refusal was deemed the equivalent of a positive drug test and setting out the necessary steps for returning to duty. On July 30, Aggregate discharged the appellant for refusing to submit to the follow-up drug test.

The appellant was not alone in parting ways with Aggregate. His co-relator, Finney, experienced significant harassment beginning in mid-August 2007. Finney's employment was terminated for a scheduling violation in late September.2

In due season, the appellant and Finney sued Aggregate. Each of them alleged that he had been retaliated against for his role as a whistleblower. The pleaded causes of action were whittled down to the FCA's anti-retaliation provision.

Before the completion of pretrial discovery, Aggregate moved for summary judgment. It argued that neither the appellant nor Finney could make out a claim of retaliation. Despite the differences in their situations, the appellant and Finney submitted a consolidated opposition. They resisted summary disposition on the merits and asserted, in the alternative, that the motion should be denied without prejudice under Federal Rule of Civil Procedure 56(d).3

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Ruling from the bench, the court denied the motion as to...

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