Any employee . . . shall be entitled to all relief necessary to make [him] . . . whole, if that employee . . . is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against . . . because of lawful acts done by the employee . . . in furtherance of an action under this section.
In Harrington v. Aggregate Industries Northeast Region Inc., (1st Cir. 2/7/12), the First Circuit overturned a summary judgment granted into favor of an employer against a employee who had been a qui tam relator in a False Claims Act suit against a concrete supplier to the “Big Dig” in Boston. Though the parties had signed a settlement, the employer dismissed the employee days afterward on the grounds that he refused to take a random drug trust. The employee claimed he was retaliated against given the suspicious timing of the drug test –days after the settlement—and that it did not appear “random” as the employee claimed he was singled out for the test. Additionally, there appears to have been some question as to whether the employer had followed its own procedures in handling the sample. In overturning the lower court’s summary judgment and finding that the matter should be subject to a jury trial, the First Circuit observed:
this is a close case. When looking to the record as a whole, however, we deem summary judgment improvident. [Employer's] adamant insistence on subjecting the appellant to drug testing is pockmarked by irregularities. When this behavior is combined with the appellant's termination immediately following his signing of the settlement agreement, it creates a sufficient foundation for a reasonable inference that the appellant was terminated for retaliatory reasons.
The case is significant because it purports to be the first circuit court to adopt the McDonnell Douglas burden-shifting framework applied in discrimination cases where there is “no direct evidence of retaliation.” McDonnell Douglas Corp. v. Greene, 411 U.S. 792, 802–05 (1973). Observing that there “are no published decisions on this point at the federal appellate level,” the Court stated:
In a case such as this, the McDonnell Douglas framework provides a principled mode for analyzing retaliatory intent. . . . . We hold, therefore, that the FCA's anti-retaliation provision is amenable to the use of the McDonnell Douglas framework. . . . . Adapting McDonnell Douglas to the FCA's anti-retaliation provision, a plaintiff first must set forth a prima facie case of retaliation. Once this is accomplished, the burden then shifts to the defendant to articulate a legitimate, nonretaliatory reason for the adverse employment action. This imposes merely a burden of production, not one of proof. . . . . Thus, if the employer produces evidence of a legitimate nonretaliatory reason, the plaintiff must assume the further burden of showing that the proffered reason is a pretext calculated to mask retaliation. (citations omitted)
The Court noted that “[t]his burden-shifting framework is a useful screening device in the summary judgment milieu,” but once a plaintiff reaches the “third step” and shows some evidence of pretext to mask retaliation, then “courts typically put it aside. “In such circumstances,” the Court explained, “an inquiring court looks to the record as a whole to determine whether there is sufficient evidence of ‘pretext and retaliatory animus’ to make out a jury question. . . . . This means that to succeed here the appellant must have adduced sufficient evidence to create a genuine issue as to whether retaliation was the real motive underlying his dismissal.” (citations omitted). As noted above, the Court overturned the lower court’s grant of summary judgment in favor of the employer, explaining:
In retaliation cases, the whole is sometimes greater than the sum of the parts. Here, for example, the bits and pieces of evidence recounted above, taken collectively, have significant probative value. After all, irregularities in an employer's dealings with an employee who has fallen out of favor can support a reasonable inference of pretext.