Aggregate Industries whistleblower truck drivers file suit

(Massachusetts)  —  Two Massachusetts truck drivers knew that their employer was delivering substandard concrete to a well-known work site. They blew the whistle, filing suit against the employer with the federal government. Are you surprised that, once the suit was settled in the drivers’ favor, they were both fired?

What happened. “Harris” and “Findley” drove trucks for Aggregate Industries, which had won a federal contract to supply concrete to the “Big Dig,” a huge Boston highway project. Convinced that Aggregate was cutting corners and delivering poor-quality materials to the project, the two drivers filed suit under the False Claims Act. That law was meant to prevent fraud against the government and allows individuals to sue on the government’s behalf.

Soon enough, their participation in the suit was leaked to Aggregate. When Aggregate settled the suit with the government, Harris and Findlay both received portions of the payment.

Meanwhile, there had been no work for them in early 2007, and then Harris underwent a major dental procedure that kept him home for several weeks. By July, he was ready to return, but Aggregate demanded that he take a drug test. He fended it off twice, but finally the employer insisted. He provided a sample, which Aggregate then said was inconclusive and demanded another.

Harris refused, was fired, and sued, charging retaliation. Findley was fired for a different reason and joined Harris’s suit, both of them pointing to the False Claims Act’s antiretaliation provision.

A federal district court judge ruled in Aggregate’s favor, and the two drivers appealed to the 1st Circuit, which covers Maine, Massachusetts, New Hampshire, and Rhode Island.

What the court said. Harris was fired just 72 hours after signing the settlement agreement that ended his and Findley’s suit–a proximity that judges found significant.

Further, it appeared that Aggregate had failed to follow its own drug-testing procedures, especially when Harris initially refused to be tested, citing his union contract, and the employer simply backed down.

Next, Aggregate pointed to a drug test Harris had failed in 2005, his union objected, and again the employer backed down.

Finally, Aggregate claimed a third-party contractor had listed Harris for testing, but it never gave proof of that in court. To appellate judges, the drug test looked like a pretext, and they reversed the lower court’s ruling and sent the case back for reconsideration. Harrington v. Aggregate Industries-Northeast Region, U.S. Court of Appeals for the 1st Circuit, No. 11-1511 (2012).

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