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Monday, May 20, 2024 | Back issues
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Big Dig Whistle-Blower Has a Case Over Firing

(CN) - A contractor accused of using inferior concrete for the money-pit highway project in Boston known as the Big Dig cannot dismiss claims that it retaliated against the whistle-blower who brought its fraud to light, the 1st Circuit ruled.

Originally conceived in the 1970s to ease growing traffic in Boston, project developers did not break ground until 1991 and construction continued until Dec. 31, 2007. Assuming the construction loans are paid off in 2038, the total tab for the project will hit $22 billion, according to the Boston Globe.

In addition to spiraling costs and delays, the Big Dig was plagued by design flaws, criminal charges and civilian deaths. Partly offset by federal funding, the completed project rerouted the I-93 Central Artery through a 3.5-mile tunnel across the city center.

Aggregate Industries - Northeast Region Inc. supplied concrete for the construction and pledged that its product met certain specifications. In 2005, however, two Aggregate truck drivers, Joseph Harrington and Donald Finney, filed suit under the False Claims Act, accusing the company of cutting corners and producing an inferior product.

Though the government did not formally intervene in the whistle-blower case, it settled with Aggregate over the asserted claims and compensated both of the employee-relators.

Shortly before it signed the settlement, Aggregate selected Harrington for random drug testing. When the employee provided a third-party testing company with two urine specimens, management told him that the test yielded an inconclusive result. Aggregate further stated that the second specimen was lost, so he must either take a follow-up test or leave.

The day of the settlement signing, Aggregate told Harrington in a letter that it equated his refusal to take a second drug test with testing positive. He was fired a couple days later. Finney also experienced alleged harassment and was fired later in 2007.

Harrington and Finney sued Aggregate, each claiming that retaliation for whistle-blower activities. Finney eventually settled with Aggregate, but a federal judge weighing Harrington's claims sided with Aggregate on summary judgment. The court said Harrington had failed to prove a causal connection between his role as a relator and Aggregate's decision to fire him.

On appeal, a 1st Circuit panel found that "the circumstances of the appellant's firing are open to legitimate question," and remanded the case for further proceedings.

"We think that the facts underlying Aggregate's efforts to force a drug test on the appellant, along with the temporal proximity between the time that he signed the settlement agreement and the time of his dismissal, create a trialworthy issue about whether Aggregate's proffered reason for firing him was a sham," Judge Bruce Selya wrote for the court.

The three-judge panel held that "the fact that some of Aggregate's high-level executives learned of the appellant's relator status in March 2007, along with the fact that Aggregate discharged the appellant 72 hours after he signed the settlement agreement, combine to evince a prima facie case of retaliation."

"To begin, the ink was still wet on the settlement agreement when Aggregate dismissed the appellant," Selya wrote. Such close temporal proximity strongly suggests retaliation.

"There is more. The record casts substantial doubt on whether Aggregate, at several points, was following its own drug testing protocol."

"Aggregate avers that Harrington was selected at random by a third-party testing company," the 21-page decision states. "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."

"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," Selya wrote. "After all, irregularities in an employer's dealings with an employee who has fallen out of favor can support a reasonable inference of pretext."

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