A whistleblower’s retaliation claim against a company that fired him shortly after settlement of his False Claims Act lawsuit was up for debate at the U.S. Court of Appeals for the 1st Circuit on Jan. 9. The company, Aggregate Industries-Northeast Region Inc., in 2007, pleaded guilty to charges of providing substandard concrete for the “Big Dig” roadway project in Boston and submitting fraudulent claims for it. It agreed to pay $42.7 million to the U.S. government and Massachusetts to settle civil and criminal charges.
The oral arguments in Harrington v. Aggregate Industries-Northeast Region Inc. focused on Joseph Harrington’s appeal of a summary judgment order against him issued by Judge William Young District of Massachusetts. Harrington claims that the proximity of the settlement and Aggregate’s employment action is a factual dispute that should have survived summary judgment. The company claims Harrington was terminated for refusing to submit to a random drug test.
In September 2009, Harrington filed a lawsuit alleging his job termination a few days after his employer settled the whistleblower case he initiated violated federal law barring retaliation against whistleblowers.
In January 2011, Young granted Aggregate’s summary judgment motion against Harrington. He issued a final judgment that May.
One of Harrington’s fellow whistleblowers, Timothy Chase, voluntarily dismissed his claims in November 2009. His co-plaintiff, Donald Finney, settled in April 2011 and Young dismissed him from the case in May.
Harrington and Finney, who were both ready-mix concrete truck drivers at Aggregate filed a qui tam case in June 2005 that claimed that Aggregate supplied substandard concrete to the government in the Big Dig.
The government later sued Aggregate, which pleaded guilty to criminal and civil charges and paid damages.
Harrington claims he was fired for pretextual reasons immediately after the the whistleblower case settled in July 2007.
According to Harrington’s brief, Aggregate’s management told Harrington that he needed to take a physical before returning to work that July after some time off. Aggregate’s brief characterized the time away as a seasonal layoff.
Harrington refused on the ground that his union contract didn’t require it. He claimed that other similarly situated drivers were not required to take a physical.
Aggregate’s management then told Harrington he was selected for a random drug test. Harrington claims such tests were only required of drivers returning to work after probation for drug test failures.
Harrington was told the test was inconclusive and he was ordered to take a follow-up test. He then asked that the portion retained from his original test – the so-called split – be tested instead.
Shortly thereafter, he was ordered to leave the premises because he had refused a mandatory drug test. Harrington’s brief claims he was fired on Aug. 3, 2007