"Pretext" in employment discrimination and retaliation cases is the term applicable to whether the explanation offered by the employer for its adverse action toward the employee can be credited. Where that explanation is shown to be pretextual, a powerful inference of unlawful motive and purpose arises as the Supreme Court explained in Reeves v. Sanderson Plumbing:
Proof that the defendant’s explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive. … the trier of fact can reasonable infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose. Such an inference is consistent with the general principle of evidence law that the factfinder is entitled to consider a party’s dishonesty about a material fact as "affirmative evidence of guilt."
Most often, pretext is shown by an amalgam of irregularities, inconsistencies and impossibilities that arise from and attached to the employer's explanation. The recent First Circuit decision in Harrington v. Aggregate Resources, No 11-1511 (Feb. 7, 2012), illustrates aptly this point.
The plaintiff, Harrington, was a truck driver for Aggregate Resources, which was a concrete supplier to Boston's "Big Dig" project. Harrington learned that the company was providing substandard concrete. Harrington and another employee filed a sealed action under the False Claims Act regarding this fraudulent conduct. For reasons unexplained in the decision Harrington's identity as a whistleblower became known to the company. Eventually, the Justice Department reached a negotiated settlement for several million dollars, one to which Harrington was a party as a False Claims Act whistleblower.
The First Circuit's opinion suggests that Harrington's relationship with his employer deterioriated once his whistleblower status became known to it. Harrington, upon returning to work after an absence on account of illness, was immediately confronted with the demand that he submit to a "return-to-work" physical and drug test. The company dropped the demand after Harrington cited his union contract. Then the company asserted that Harrington had to take a drug test, because he had tested positive for cocaine some years earlier. A union business agent interceded and the company backed down again.
Amazingly or coincidentally, Harrington was informed when he next reported to work that his name appeared on a third-party generated list to take a random drug test. Harrington complied and went on with his work. A few days later, he was told that his urine sample had yielded an inconclusive result and that he was required to submit to another test. Standard practice required that a urine sample the "split" with one part being tested and the other part being held in reserve. Harrington asked that his "split" sample be used. Again amazingly or coincidentally, he was told that "split" sample had been lost and was unavailable. Harrington then declined to submit to another drug test. The next day he signed the settlement agreement in the False Claims Act case. The day after that the employer fired him for refusing to take a drug test. After he was fired, Harrington filed suit claiming that his termination violated the anti-retaliation provisions of the False Claims Act, 31 USC § 3730. The district court granted the employer summary judgment and Harrington appeal.
The First Circuit determined that the case turned on the issue of pretext. It concluded that the amalgam of inconsistencies, implausibilities and irregularities yielded a fact issue and reversal of the summary judgment as the Court explained:
- “[W]eaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffer [ ]” can give rise to an inference of pretext. So can deviations from standard procedures, the sequence of occurrences leading up to a challenged decision, and close temporal proximity between relevant events.
- "To begin, the ink was still wet on the settlement agreement" when Harrington was fired. "Such close temporal proximity strongly suggests retaliation."
- "The record casts substantial doubt on whether Aggregate, at several points, was following its own drug testing protocol."
- When Harrington "sought to return to work after several days off, Aggregate insisted that he take a drug test. The appellant objected, citing the union contract. Aggregate did not press the matter, and the record contains no explanation for this."
- "Following its initial botched attempt to get a drug test, Aggregate tried a new approach. This time, it told [Harrington] that he needed to take a follow-up drug test because of a positive test result in 2005. [Harrington] again challenged Aggregate's demand and brought the matter to the attention of the union's business agent. Aggregate relented, and there is no clear evidence indicating that it had a right to impose this requirement."
- "The events that occurred on the day that the appellant returned to work also lend sustenance to an inference of pretext. On that day, the appellant was singled out for a drug test. Aggregate avers that he was selected at random by a third-party testing company. Coincidences happen, but this sequence of events raises eyebrows. This eyebrow-raising effect is heightened by the fact that Aggregate never produced an affidavit or other statement from its third-party contractor as to when or how the appellant was chosen. Moreover, the record contains a data sheet showing the test results. This data sheet did not describe the test as “random,” but as a “follow-up” drug test."
- The whereabouts of Harrington's "split" sample "contributes to the air of mystery." The employer's human resources director testified that "he did not know whether the split was lost. He added that standard testing procedures made that eventuality highly unlikely. To compound the uncertainty, the record contains no evidence about the split from the third-party testing firm."
- "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. See, e.g., Collazo, 617 F.3d at 52; Hurlbert v. St. Mary's Health Care Sys., Inc., 439 F.3d 1286, 1299 (11th Cir.2006); Garrett v. Hewlett–Packard Co., 305 F.3d 1210, 1220 (10th Cir.2002). Moreover, the fact that Aggregate repeatedly insisted on a drug test for spurious reasons contributes to the inference of pretext. Because the appellant had tested positive for cocaine in 2005, a jury could infer that Aggregate focused on this weak point in his employment history as a convenient way of getting rid of him."
Robert L. Abell
www.RobertAbellLaw.com
