Retaliation claims often turn on the legitimacy of an employer’s stated reasons for termination. In order to prevail in a retaliation lawsuit, the employee has the burden of demonstrating that the employer’s stated reasons are a pretext for unlawful retaliation. As a recent case before the First Circuit Court of Appeals demonstrated, this can be particularly difficult if the reason for termination is that the employer had made death threats against his coworkers.
Plaintiff Blair Hamrick filed a lawsuit under the False Claims Act, 31 U.S.C. § 3729, et seq., which allows individuals to bring lawsuits on behalf of the U.S. government. In his complaint, Hamrick alleged that GSK had committed fraud by marketing several products for off-label uses. Hamrick found participation in the ensuing investigation stressful and began to abuse alcohol. He was convicted of driving while alcohol impaired (“DWAI”), and subsequently took a leave of absence. Hamrick did not report his DWAI conviction to GSK, despite a company policy requiring him to do so.
Upon returning from leave, Hamrick, who owned “three or four” guns at the time, displayed increasingly alarming and paranoid behavior. Hamrick made death threats against coworkers, told coworkers he obsessed about killing certain coworkers, and told coworkers that he would “like to take a gun and shoot some people.” After these comments were reported to management, GSK placed Hamrick on paid administrative leave. GSK then attempted for several months to negotiate a severance agreement, before eventually terminating Hamrick. Hamrick then modified his complaint to include a claim for retaliation. The District Court dismissed Hamrick’s retaliation claim at the summary judgment stage, finding that no reasonable jury could conclude that GSK’s reasons for terminating Hamrick – his violation of company policy and threats of workplace violence – were pretextual. Hamrick appealed the decision to the First Circuit Court of Appeals.
On appeal, Hamrick argued that the 56 items that GSK withheld from Hamrick during discovery due to attorney-client privilege were not privileged because the attorneys were making business decisions instead of offering legal advice. The First Circuit affirmed the District Court’s actions and concluded that GSK had acted as any sophisticated party would under the circumstances by consulting extensively with their counsel before taking any action against Hamrick. The Court concluded that the privilege was appropriate because there was no reason to doubt that the attorneys had been offering legal advice.
Regarding the alleged retaliation, the First Circuit concluded that, if anything, the fact that Hamrick was a whistleblower “caused GSK to tread more carefully and slowly than it otherwise might” in terminating Hamrick. The Court also looked favorably upon the fact that GSK took no actions after learning about the initial lawsuit that suggested any type of retaliatory animus.
The case underscores two big lessons for employers. First, there is no substitute for the advice of experienced and knowledgeable employment counsel when terminating employees who may be whistleblowers or who present a particularly challenging case for termination. Second, sound reasons for termination decisions are invaluable in defeating claims of retaliation.