United States Ex Rel. Hamrick v. Glaxosmithkline LLC , 814 F.3d 10 ( 2016 )

United States Court of Appeals
For the First Circuit
No. 15-1434
UNITED STATES ex rel. BLAIR HAMRICK,
Plaintiff, Appellant,
GREGORY W. THORPE; THOMAS GERAHTY; MATTHEW BURKE,
Plaintiffs,
v.
GLAXOSMITHKLINE LLC, f/k/a SMITHKLINEBEECHAM CORP. d/b/a
GLAXOSMITHKLINE,
Defendant, Appellee,
GLAXOSMITHKLINE, PLC,
Defendant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Lynch, Thompson, and Kayatta,
Circuit Judges.
Matthew Jacob Fogelman, with whom Fogelman & Fogelman LLC,
was on brief, for appellant.
Thomas S. Williamson, Jr., with whom Matthew J. O'Connor,
Benjamin J. Razi, David M. Zionts, and Covington & Burling LLP,
were on brief, for appellee.
February 17, 2016
KAYATTA, Circuit Judge. While employed by
GlaxoSmithKline ("GSK"), Blair Hamrick ("Hamrick") told two Human
Resource ("HR") managers that he was thinking about killing a co-
worker. When Hamrick shortly thereafter told several co-workers
that he hated the company, wanted to shoot some people, and was
obsessed with the thought of killing certain specifically
identified co-workers, GSK immediately put Hamrick on paid
administrative leave, and thereafter fired him. Hamrick then
claimed that GSK had fired him because it had learned that he had
initiated a qui tam action accusing GSK of fraud under the False
Claims Act, 31 U.S.C. § 3729 et seq. ("FCA"). Finding that Hamrick
had not produced evidence from which a reasonable jury could
conclude that GSK had fired him for his whistleblowing, the
district court granted summary judgment to GSK. Hamrick appeals
this judgment, as well as the district court's decision not to
conduct an in camera review of certain documents as to which GSK
asserted attorney-client privilege. For the following reasons, we
affirm.
I. Background
In reviewing the district court's summary judgment
determination that no rational jury could find that Hamrick's
whistleblowing activity was the cause of his termination, we
"consider[] the record and all reasonable inferences therefrom in
the light most favorable" to Hamrick. Soto-Feliciano v. Villa
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Cofresí Hotels, Inc., 779 F.3d 19, 22 (1st Cir. 2015) (alteration
in original) (quoting Estate of Hevia v. Portrio Corp., 602 F.3d
34, 40 (1st Cir. 2010)).
During the relevant period, Hamrick worked for GSK in
Denver, Colorado, as a senior executive sales representative. In
January 2002, as part of an internal investigation into an
allegation by another GSK employee, Gregory Thorpe ("Thorpe"),
that GSK was illegally marketing pharmaceuticals for off-label
uses, Hamrick was called in for an interview with two members of
the GSK compliance team. At the interview, Hamrick corroborated
Thorpe's allegations. Hamrick also told the compliance team
members that he was being treated unfairly and improperly by his
managers and co-workers because, in a matter that had nothing to
do with off-label marketing, he had reported two co-workers for
privately selling a pair of hockey tickets that GSK had intended
for use by physicians attending a GSK program. The mistreatment
of which Hamrick complained included low performance evaluations,
defamatory remarks, and a demotion. Hamrick says that he continued
to face retaliation for the ticket incident throughout the spring
of 2002, but in the summer of 2002 he canceled a meeting he had
scheduled with GSK's Human Resource department to discuss these
retaliation claims, indicating that he wished to "drop" the matter.
In January 2003, Hamrick and Thorpe filed (under seal
and without service on GSK) a qui tam complaint against GSK under
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the FCA, which allows a private citizen whistleblower, called a
"relator," to bring certain fraud claims on behalf of the United
States in exchange for a portion of the suit's proceeds. See
United States ex rel. Duxbury v. Ortho Biotech Prods., L.P., 579
F.3d 13, 16 (1st Cir. 2009). The consequent need to cooperate
with the Department of Justice added to the strain Hamrick was
already feeling because of his mistreatment by co-workers. As a
result, Hamrick says, he began abusing alcohol.1 In October 2003,
after operating his motorcycle while intoxicated, Hamrick was
convicted for Driving While Alcohol Impaired ("DWAI").2 This
conviction gave Hamrick a "wake-up call" that he "need[ed] some
help." He took a medical leave of absence from work, without
reporting his DWAI conviction to GSK.
By late January 2004, Hamrick's psychiatrist had cleared
Hamrick to return to full-time employment, and GSK reinstated
Hamrick on January 27, 2004. On February 6, 2004, the U.S.
Attorney's Office for the District of Colorado served a subpoena
on GSK, putting it on notice that it was under a nationwide federal
1 A later psychiatric evaluation showed that Hamrick "met the
criteria for generalized anxiety disorder with many features of
posttraumatic stress disorder."
2 Hamrick was originally charged with Driving Under the
Influence, but he was permitted to plead guilty to DWAI instead.
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investigation for the off-label promotion of nine of its top-
selling products.3
On January 29 and February 12, 2004, Hamrick spoke with
two HR managers to renew his complaint that he had been suffering
unfair treatment because he had reported the 2001 ticket incident.
Hamrick was particularly troubled because a co-worker's wife, who
worked at Hamrick's son's school, had approached Hamrick's son
while Hamrick was on medical leave and asked what would happen if
Hamrick lost his job. During these interviews, Hamrick expressed
a desire to "'pull out the trachea' of a coworker." After the
interviews, the managers voiced concern to GSK's Employee Health
Management ("EHM") department regarding Hamrick's "extreme anger
in body language, tone of voice, and . . . paranoid ideas." The
managers were especially troubled that Hamrick was known to
"own[]/carr[y] a gun." Hamrick admits that he made the statement
at issue, and that he owned "three or four" guns at the time.
After speaking with the managers, the EHM nurse case manager whom
GSK had assigned to Hamrick, Marilyn D. Conston ("Conston"), began
to arrange a so-called Fitness for Duty Evaluation ("FFD") for
Hamrick.4 About a week later, however, HR contacted Conston and
3 GSK ended up pleading guilty to the criminal charges brought
against it, and it agreed to pay over $1 billion to settle the
related civil litigation.
4 GSK typically required an FFD when GSK needed assurances
that an employee who had been on leave was ready to return to work,
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requested that she "hold off on scheduling" Hamrick's FFD. HR
later informed Conston that it had been "advised by legal" not to
move forward with the FFD due to "some issues of a confidential
nature" and due to the concern that conducting an FFD "would most
likely aggravate the situation."5
Meanwhile, Hamrick had been scheduled to attend a GSK-
sponsored conference in Dallas from March 15–19, 2004. Prior to
the conference, the vice president of HR spoke with corporate
security advisor Richard Demberger ("Demberger") about securing
security assistance in connection with Hamrick. At the direction
of Demberger's boss, Demberger went to Dallas for the conference.
In speaking with various co-workers at the conference,
Hamrick made several threatening comments over the course of the
week, in some cases while visibly intoxicated. Hamrick's comments
included the following:
 "I hate this company. . . . I'd like to take
a gun and shoot some people."
 Referring to his former manager, Pat, Hamrick
allegedly said, "I want to kill that fucker,"
before describing his dreams of "jamming his
thumbs into [Pat's] eyes and ripping [Pat's]
eyes out."
although GSK typically did not perform FFDs for employees who,
like Hamrick, had already returned to work.
5 GSK's privilege log reveals that GSK's in-house counsel
began communicating with outside qui tam counsel regarding
Hamrick's employment issues around this time.
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 "I'm fucking crazy. . . . You don't
understand, I'm obsessed with these thoughts.
Let me give you an example. I'm been [sic]
having these dreams where I am in a wrestling
match with [GSK managers] Jerry and Pat and I
hit Jerry in the eye and his eye pops out and
I hit Pat and crush his windpipe."
 "I'd like to fucking kill [Jerry]. No, I
wouldn't have any remorse whatsoever. I'd
like to kill him."
 When asked about his ex-wife, Hamrick
allegedly "started talking about his guns and
how his ex-wife was afraid of him now. He
talked about cocking the gun and about hollow
point bullets. He said he like [sic] to play
with the gun when she was around, popping the
clip in and out."
While at least one of Hamrick's co-workers did not take the remarks
seriously, another expressed significant concern:
[Hamrick] said words to the effect that if he
was going down, he was going to take others
with him. . . . My thinking was [that] I just
want[ed] to try and say some stuff so he would
think I was his friend. It made me think of
the situation at Columbine where [school
shooter Dylan] Klebold had allowed a student
to leave because they were friends.
Hamrick has no recollection of making the statements at
issue but does not dispute that he did so. Demberger met with
Hamrick at the Dallas conference and asked whether Hamrick thought
he had returned from medical leave too soon. Hamrick agreed that
he "definitely had some personal issues that [he] was dealing
with." GSK required Hamrick to go home early from the Dallas
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conference and immediately placed him on paid administrative
leave. He would never return to the workplace.
Over the next month, Demberger attempted to negotiate
the terms of a severance agreement with Hamrick. Outside of
Hamrick's "unique situation," Demberger had never before been
involved in severance discussions with employees during his tenure
at GSK. Around the same time, GSK learned through an annual audit
process about Hamrick's prior DWAI conviction and that Hamrick's
driver's license had subsequently been--and indeed remained--
suspended. Hamrick, whose job required him to drive an automobile,
had not reported the conviction to GSK despite a GSK policy that
obliged him to do so.
Meanwhile, Conston rescheduled the FFD that had been
stalled prior to the Dallas conference. But the rescheduled FFD
was never performed: about one week before the scheduled date,
Hamrick wrote to Demberger to propose the terms of a severance
package. After an HR manager wrote to Hamrick to reject the
proposed terms and to make a counteroffer, Hamrick replied that he
had not intended to resign or request severance, indicating that
he had compiled his list of proposed terms only "at the insistence
and intimidation of Mr. Demberger."
Less than a week later, in mid-June 2004, HR director
Bill Reedy ("Reedy") wrote to Hamrick to withdraw GSK's severance
offer and to request a meeting to "follow up on the outstanding
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issues concerning [Hamrick's] behavior at the sector meeting in
Dallas, issues related to [Hamrick's] reported driving record, and
to discuss next steps." It was arranged that Hamrick would meet
with Reedy and members of GSK's HR and legal staff later that month
to discuss Hamrick's employment issues and Hamrick's knowledge of
"inappropriate promotional practices by GSK." After Hamrick
indicated that his attorney would attend the meeting with him,
Reedy replied that the attorney "may be allowed to sit in on the
interview with GSK attorneys" but would "not be allowed to sit in
on the HR portion of the interview with only HR staff," per GSK's
standard practice. The day before the scheduled meeting, Hamrick's
attorney left a message with Reedy, saying, "If you are not going
to meet with [Hamrick] with me present, I don't think there is
going to be a meeting." Reedy called back the next morning to
"confirm that, given [the attorney's] message, it sound[ed] like"
the meeting should be canceled.
In early September, after two months of silence, GSK's
outside counsel wrote to Hamrick's attorney to renew GSK's request
for a meeting and to make clear that if Hamrick refused to discuss
his employment issues, "GSK [would] move forward and make an
employment decision based on the information the Company [had]
already received from others." Hamrick's attorney replied that
Hamrick would attend a meeting if he received written assurances
"that a decision [had] not [yet] been made . . . to terminate his
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employment, and that no one from GSK [had yet] . . . recommended
that he be discharged." After GSK's counsel indicated that GSK
declined to recognize any "'conditions' Mr. Hamrick [sought] to
attach to his agreement to cooperate," Hamrick's attorney replied
that GSK did not appear to be making a good-faith effort to meet
with Hamrick and that the proposed meeting "could potentially
involve the discussion of certain issues that Mr. Hamrick is not
at liberty to discuss at this time." Roughly three weeks later,
on October 13, 2004, GSK fired Hamrick.
Following his termination, Hamrick amended his qui tam
complaint to include an allegation that GSK had fired him in
retaliation for his whistleblowing activity, in violation of 31
U.S.C. § 3730(h). Hamrick's amended complaint was unsealed and
served on GSK in July 2012. In its answer, GSK denied many of
Hamrick's allegations, and so the parties proceeded to discovery.
Toward the end of discovery, GSK produced a 57-item privilege log
of documents it was withholding on the basis of attorney-client
privilege. Hamrick moved for the district court to compel
production of these documents or, in the alternative, to conduct
an in camera review of the documents to determine whether GSK had
properly characterized them as privileged. The district court
denied this motion without a written opinion.
At the close of discovery, GSK moved for summary
judgment. Assuming that Hamrick had made out a prima facie showing
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of retaliation, the district court found that GSK had asserted
three legitimate, nonretaliatory justifications for Hamrick's
termination: (1) Hamrick's pattern of threatening behavior; (2)
Hamrick's failure to disclose his DWAI conviction; and (3)
Hamrick's failure to cooperate with GSK's investigation into his
conduct. Finding that Hamrick had not produced evidence sufficient
for a reasonable jury to find that these asserted justifications
were pretextual, the district court granted summary judgment to
GSK.
Hamrick now appeals both the district court's decision
not to conduct an in camera review of the documents as to which
GSK asserted attorney-client privilege and the district court's
grant of summary judgment to GSK. We address these matters in
turn.
II. In Camera Review
A. Standard of Review
We review the district court's decision not to conduct
an in camera review of the documents on GSK's privilege log for
abuse of discretion. See United States v. Zolin, 491 U.S. 554,
572 (1989) ("[T]he decision whether to engage in in camera review
rests in the sound discretion of the district court.").6
6
GSK contends that Hamrick has waived his request for in
camera review because his motion below argued primarily that the
district court should compel production of the challenged
documents. Hamrick's motion to compel, though, plainly requested
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B. Analysis
GSK's log of documents assertedly subject to the
attorney-client privilege identifies 56 communications that had
been sent to or produced by legal counsel in connection with
Hamrick's employment situation.7 The log is quite detailed,
indicating for each document its date, all authors and recipients,
the privilege asserted, and a narrative recitation of the basis
for the assertion of privilege.8 Hamrick's primary argument for
in camera review of these communications focuses on the supposed
role of the GSK lawyers involved. He alleges that the lawyers
were acting not as lawyers, but as decision-makers on the business
side. See Texaco P.R., Inc. v. Dep't of Consumer Affairs, 60 F.3d
867, 884 (1st Cir. 1995) ("The attorney-client privilege attaches
only when the attorney acts in that capacity."). GSK counters
that there is no reason to suspect that the lawyers were not simply
in camera review as an alternative to compelled production, and
Hamrick's arguments in support of his motion to compel apply fully
to his less ambitious request that the district court examine the
documents in camera to determine whether they had been properly
withheld.
7 One additional logged communication appears not to have been
sent to or produced by counsel. According to the log, it was
partially redacted on privilege grounds because it contained a
"confidential request for legal advice regarding Hamrick
employment issues."
8 For example, the narrative recitation for one document
reads: "confidential in-house counsel to outside counsel
communication providing information relevant to rendering legal
advice regarding Hamrick employment issues."
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doing what one would expect: communicating with their client to
render legal advice.
The principal weakness in Hamrick's argument arises out
of the nature of the business decision at issue: How to deal with
an employee who was threatening workplace violence, who might be
a qui tam relator, and who may be suffering from a mental disorder?
Common sense says that a sophisticated employer would invariably
consult closely with legal counsel on such a matter, and that the
line between legal advice about what to do and business advice
about whether to do it is more abstract than concrete. Indeed, in
a case such as this, the legal advice GSK received could well have
been to remove Hamrick from the workplace in light of the liability
risk he posed.
This is all to say that the circumstances out of which
the assertion of privilege arises here present no particular reason
to doubt that the lawyers were giving legal advice. The record
testimony aligns with this conclusion: GSK witnesses testified
that several individuals in management made the decision to
terminate Hamrick, and that they did so after soliciting
recommendations from legal counsel. In other words, GSK proceeded
precisely as one would have expected it to proceed.
Undeterred, Hamrick points to the paucity of any
nonprivileged documents concerning the actual decision to
terminate him. The inference he draws from this paucity is that
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the lawyers, rather than GSK management, must have made the
decision. We find no compelling force in this reasoning. It is
just as likely that management told the lawyers the facts, the
lawyers (being lawyers) communicated and documented their advice
in writing, and management then conferred without creating any
further written record of the decision-making process before
signing off on a termination letter to be sent by GSK counsel to
Hamrick's counsel.
Hamrick's better arguments are that the number of
documents on the privilege log are few (and thus relatively easy
to review) and that the evidence suggests that GSK's counsel,
claiming privilege, had initially failed to produce one document
that was not in fact covered by the privilege and that Hamrick's
counsel chanced to hear of at a deposition only because the
deponent had used it to refresh her memory. Whether these points
would have justified in camera review is not the issue. The issue
on appeal is whether the district court abused its discretion.
And because we "cannot manage the intricate process of discovery
from a distance," Heidelberg Ams., Inc. v. Tokyo Kikai Seisakusho,
Ltd., 333 F.3d 38, 41 (1st Cir. 2003) (quoting Brandt v. Wand
Partners, 242 F.3d 6, 18 (1st Cir. 2001)), we find an abuse of
discretion concerning a discovery matter only "upon a clear showing
of manifest injustice, that is, where the lower court's discovery
order was plainly wrong and resulted in substantial prejudice,"
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id. (quoting Mack v. Great Atl. & Pac. Tea Co., 871 F.2d 179, 186
(1st Cir. 1989)). Given the obviousness of the reasons for
Hamrick's firing, and for extensive consultation with legal
counsel, we find nothing in the circumstances that would have
required a different exercise of the district court's discretion.
III. Summary Judgment
A. Standard of Review
Summary judgment is appropriate where "there is no
genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law." Fed. R. Civ. P. 56(a). We review
the district court's grant of summary judgment de novo,
"considering the record and all reasonable inferences therefrom in
the light most favorable" to Hamrick. Estate of Hevia, 602 F.3d
at 40.
B. Analysis
Hamrick's claim of retaliatory discharge under the FCA
is governed by the burden-shifting framework laid out in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802–05 (1973). See
Harrington v. Aggregate Indus. – Ne. Region, Inc., 668 F.3d 25, 31
(1st Cir. 2012). Under this framework, a plaintiff must first
make out a prima facie case that an adverse employment action was
retaliatory. Id. The burden then shifts to the employer to
respond with a "legitimate, nonretaliatory reason" for the action.
Id. If the employer successfully does so, "the plaintiff must
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assume the further burden of showing that the proffered reason is
a pretext calculated to mask retaliation." Id.The district court assigned Hamrick the burden of
showing that "but for his whistleblowing, he would not have been
terminated" (emphasis supplied). In assigning such a burden to
Hamrick, the district court relied on our interpretation of the
Fair Labor Standards Act's anti-retaliation provision in Travers
v. Flight Services & Systems, Inc., 737 F.3d 144 (1st Cir. 2013).
Travers actually declined to "determine the precise standard of
causation applicable" because the parties had agreed to apply the
but-for standard. Id. at 147 n.1. Here, too, however, Hamrick
raises no objection to application of the "but for" burden. So we
again assume without deciding that but-for causation is the correct
standard, this time under the FCA.
On appeal, Hamrick also does not dispute that GSK has
asserted a proper nonretaliatory justification for his discharge.
Therefore, we focus our inquiry on whether Hamrick has adduced
"sufficient evidence of 'pretext and retaliatory animus' to make
out a jury question . . . as to whether retaliation was the real
motive underlying his dismissal." Harrington, 668 F.3d at 31(quoting Mesnick v. Gen. Elec. Co., 950 F.2d 816, 827 (1st Cir.
1991)). Affirmance is warranted only if no reasonable jury could
find that Hamrick would have kept his job had GSK not been
motivated to retaliate against him.
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In considering what a reasonable jury might find in this
case, the gravity of the conduct to which GSK points as its
principal reason for discharging Hamrick leaves Hamrick with
little hope of successfully launching any alternative theories of
causation absent some evidence that he did not make the threats
ascribed to him or that his behavior should be viewed in a
different light. He offers neither. Instead, his principal
argument is that because GSK did not deal with him more harshly
and rapidly, a reasonable jury could conclude that GSK's professed
concern for workplace safety was merely an "after-the-fact
justification[]" for a retaliatory termination. Santiago-Ramos v.
Centennial P.R. Wireless Corp., 217 F.3d 46, 56 (1st Cir. 2000).
Along these lines, Hamrick argues that if the true reason
for his termination was his threat of violence, GSK would have
called security to investigate the matter more promptly and
thoroughly. The fact is, though, that GSK sent a security officer
to the Dallas conference and, immediately following the incident
in Dallas, GSK sent Hamrick home and placed him on administrative
leave--and at no point thereafter invited him to return to the
workplace.9
9 Even while arguing that GSK's response was too lethargic to
signal genuine concern, Hamrick highlights the fact that one of
his co-workers did not take his violent remarks seriously and so
suggests that GSK's response was heavy-handed--and therefore
disingenuous. But Hamrick's conduct certainly made some GSK
employees considerably uneasy. A jury's suspicions could hardly
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In the same vein, Hamrick finds it peculiar that he was
not finally terminated until seven months after the incident in
Dallas. But Hamrick himself points out (and, inconsistently,
attempts to draw suspicion from) the fact that GSK initiated
efforts to negotiate a severance agreement immediately upon
Hamrick's return from Dallas and only began the investigatory
process that would conclude with Hamrick's termination after those
negotiations had broken down. Moreover, once GSK had neutralized
any threat Hamrick posed at GSK by removing him from the workplace,
the need for urgent action had passed; GSK could then afford the
time required to make sure that it had the facts straight, to give
Hamrick a chance to meet, and to navigate the difficulties of
terminating a long-term employee with a history of internal
whistleblowing and possible signs of mental illness.10 In sum, we
fail to see how a jury could find in Hamrick's termination process
be roused by the fact that GSK erred on the side of caution. And
insofar as Hamrick argues that "[i]t is for the jury to hear from
[his co-workers] in their own words and weigh them--along with
[Hamrick's own] testimony," he misunderstands the nature of our
inquiry. Whether Hamrick's co-workers responded reasonably to
Hamrick's undisputed conduct in Dallas is not before us; our
question is whether Hamrick has offered any reason for a jury to
suspect that GSK's response to the information it received about
Hamrick's conduct was insincere. He has not done so.
10 In light of these difficulties, Reedy's testimony that
there would have been a "potential path back to work for Hamrick"
had Hamrick been "sufficiently cleared of policy violations" is
entirely unremarkable.
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evidence that GSK was not as concerned as any reasonable employer
would be about Hamrick's potential for violence.
Hamrick next argues that his conduct in Dallas was itself
a result of GSK's retaliatory animus. In the modest version of
this argument, Hamrick merely contends that his violent outbursts
arose from the emotional strain caused by GSK's acts of
retaliation. This version suffers from evidentiary and temporal
difficulty, however. Although Hamrick repeatedly complained of
retaliatory treatment prior to the meeting in Dallas, up to a month
before the meeting Hamrick attributed this alleged retaliation to
his exposure of his co-workers' improper sale of a pair of hockey
tickets--an incident entirely unrelated to Hamrick's FCA-protected
activity.11 Hamrick himself observes that it was not until GSK's
receipt of a subpoena in early February 2004--roughly a month prior
to the Dallas meeting--that "the record supports a reasonable
inference that GSK suspected Mr. Hamrick of being a relator."
Since Hamrick alleges no specific incident of retaliation
occurring between GSK's receipt of the subpoena and the Dallas
11Hamrick asserts that the alleged ticket-related retaliation
is nonetheless "significant because [it] set[s] the stage" for
GSK's alleged whistleblowing-related retaliation. What Hamrick
means by this, he does not make clear. See United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (undeveloped argument
deemed waived). Because we draw no relevant inferences from GSK's
alleged pattern of conduct surrounding the hockey ticket incident,
we need not consider GSK's argument that Hamrick disavowed any
reliance on this pattern of conduct below.
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meeting, no jury could infer from the record that Hamrick's conduct
in Dallas resulted from any relevant retaliation.
Facing these evidentiary shortcomings, Hamrick doubles
down with a more ambitious claim--that "GSK sent a vulnerable Mr.
Hamrick to Dallas anticipating that something untoward might
happen." On Hamrick's telling, GSK recognized that Hamrick was
unstable upon his return from medical leave12 but, after coming to
suspect that Hamrick was a whistleblower, "decided to simply sit
back and wait for Mr. Hamrick to . . . provide . . . an excuse to
terminate him." Hamrick is driven to such a theory by an
inconvenient fact--that during the period immediately following
GSK's receipt of the subpoena, GSK took no action consistent with
a desire to push Hamrick out.13 In any event, the theory is both
speculative and farfetched. See Medina-Munoz v. R.J. Reynolds
Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990) ("Even in cases where
elusive concepts such as motive or intent are at issue, summary
judgment may be appropriate if the nonmoving party rests merely
upon conclusory allegations, improbable inferences, and
unsupported speculation."). And the fact remains that Hamrick did
12
That GSK was aware of Hamrick's instability is amply
supported in the record, both in light of HR's notes from the
interview in which Hamrick expressed his desire to rip the trachea
from his co-worker and in light of the steps HR took to ensure a
security presence at the Dallas meeting.
13 By Hamrick's own testimony, his invitation to attend the
Dallas conference was an unremarkable incident of his position as
a respiratory sales representative.
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indeed provide a compellingly good reason to be removed from the
workplace.
Also undisputed is the presence of an additional
nonretaliatory basis for GSK's decision to terminate Hamrick--
Hamrick's DWAI conviction and subsequent failure to report it as
required by GSK policy.14 Although Hamrick correctly notes that
an unreported DWAI is not an "automatically . . . fireable
offense," he ignores the cumulative weight of his offenses. Given
undisputed testimony that Hamrick could have been terminated for
the DWAI offense alone,15 a reasonable jury faced with such an
offense on top of Hamrick's other serious misconduct could hardly
conclude that GSK would have retained Hamrick had he not been a
relator.
Hamrick nevertheless tries to argue that the timing of
the breakdown in severance discussions raises a question about the
14Hamrick alleges that his physician had advised him not to
report the conviction. But Hamrick did not offer this excuse to
GSK except through a letter from his attorney devoid of any
supporting documentation. Moreover, Hamrick gives us no reason to
suspect that the excuse, if shown to be true, would have been
relevant under GSK's disciplinary policies.
15 GSK's Safe Driver Policy indicates that termination is
possible where "driving restrictions prohibit performing essential
functions of the job for an unreasonable period of time." Although
Hamrick avers that the DWAI conviction "[a]t no time . . .
impact[ed] his ability to drive for work," the record suggests
otherwise. Hamrick's driver's license was suspended soon after
his conviction, and it remained suspended, five months later, when
HR reviewed Hamrick's driving record and expressed surprise that
Hamrick had been "driving on [a] suspended license."
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bona fides of GSK's asserted reasons for firing him. We do not
see how this is so. Hamrick did not, as requested, meet with HR
following the breakdown of severance negotiations to explain his
misconduct.16 Hamrick asserts that it was Reedy who canceled the
first proposed meeting, but it was Hamrick's lawyer who, after
discovering that he could not sit in on the HR portion of the
meeting per GSK's standard practice, left a message with Reedy to
say, "I don't think there is going to be a meeting." Reedy merely
"confirm[ed] that, given [the lawyer's] message, it sound[ed]
like" the meeting should be canceled. When GSK again requested a
meeting, Hamrick again attempted to impose conditions. On GSK's
third attempt to initiate a meeting, Hamrick failed to take up the
invitation. At the close of this process, Hamrick was terminated
on the basis of the information HR had before it, which included
Hamrick's conduct in Dallas and his unreported DWAI conviction.
Although Hamrick defends the cat-and-mouse game he played in trying
to impose conditions upon the proposed meetings, he offers no
16 Hamrick argues that GSK has only post hoc asserted a failure
to cooperate as a basis for his termination and that a jury could
therefore infer that GSK is hiding its actual rationale. This
argument represents a change of tune from Hamrick's complaint,
which cited failure to cooperate as one of the "reasons upon which
GSK . . . allegedly relied when it made its decision to discharge."
And such an argument would be meritless in any event. At the time
HR sought to meet with Hamrick, it clearly indicated that Hamrick's
failure to cooperate would cause GSK to "move forward and make an
employment decision based on the information the Company [had]
already received from others" about Hamrick's underlying
misconduct--which is precisely what happened.
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evidence suggesting that GSK's refusal to entertain these
conditions deviated in any way from the norm.17
Unable to undermine GSK's nonretaliatory account in any
convincing way, Hamrick next attempts to create a jury question by
conjuring up a "plausible competing" account. In this account,
GSK began its campaign of retaliation immediately after Hamrick
first corroborated Thorpe's claims of off-label branding during
GSK's internal investigation in January 2002. This retaliation
escalated after GSK received a subpoena in February 2004 and began
to suspect that Hamrick was a relator. Following the Dallas
conference and the breakdown of severance negotiations, GSK's
suspicions were further stirred when it learned that Hamrick was
represented by Keith Cross ("Cross"), the same employment and qui
tam attorney who had previously represented Thorpe during Thorpe's
severance negotiations. Finally, once Cross "effectively
confirmed" to GSK that Hamrick was a relator in a September 24,
2004, letter, GSK took the final step of terminating Hamrick
nineteen days later.
This narrative has too much fiction and too little fact.
Hamrick himself admitted that the alleged retaliation by co-
workers predated his January 2002 corroboration of Thorpe's off-
17To the extent that GSK argued below that Hamrick's failure
to complete an FFD constituted an additional failure to cooperate,
GSK has since disavowed any reliance on the argument, and we do
not consider it.
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label branding allegations, and he has disavowed any argument that
this corroboration formed a basis for the alleged retaliation
here.18 We observe, moreover, that GSK's conduct upon receiving
the subpoena in February 2004--deciding not to require Hamrick to
undergo an FFD and allowing Hamrick to attend the Dallas conference
despite GSK's concerns about his mental health--does not suggest
retaliatory animus.
Undaunted, Hamrick insinuates that Demberger's atypical
involvement in the severance negotiation process betrays such
animus. Hamrick is certainly correct that "deviations from
standard procedures" can "give rise to an inference of pretext."
Harrington, 668 F.3d at 33. But merely identifying some unusual
measure GSK has taken--particularly bearing in mind the unusual
facts of Hamrick's misconduct--is insufficient, without more, to
create such an inference.19 See Abril-Rivera v. Johnson, 806 F.3d
18 Hamrick briefly suggests that GSK previously "pushed"
Thorpe "out of the company" for Thorpe's whistleblowing activity,
and that this evidence of past retaliation supports a finding of
retaliation here. Hamrick, though, points to no admissible
evidence that actually supports the claim that GSK forced out
Thorpe, citing only an allegation by Thorpe's counsel and an email
by an HR consultant recommending that GSK accept Thorpe's own
request for a severance package.
19 Hamrick's further suggestion that Demberger "might have
been receiving his instructions from GSK's legal department"
misconstrues Reedy's testimony that the legal department,
naturally enough, "would have been involved in any conversation
around severance." In fact, Reedy explicitly testified that the
person instructing Demberger "would have been somebody in HR."
This testimony aligns with Demberger's own.
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599, 610 (1st Cir. 2015) (evidence of departure from standard
procedure insufficient to create jury question where "the record
discloses no shifting explanations for deviations from protocol or
improbable 'coincidences'"). For the same reason, we find no
significance in GSK's failure, following the breakdown of
severance negotiations, to revive its efforts to conduct an FFD.
As Hamrick's own counsel has noted, GSK refused to confirm that
Hamrick had any options other than termination after Dallas,
barring his "clear[ance] of policy violations," and one cannot
imagine why GSK would have continued to seek an FFD after Hamrick
broke off severance discussions and soon thereafter proved
unwilling to participate in the investigatory process that
represented his only conceivable hope of clearing himself.
Similarly, GSK's conduct upon learning that Cross was
representing Hamrick does little to suggest retaliation. Hamrick
first contends that the revelation of Cross's identity was the
"real reason" Hamrick's scheduled meeting with Reedy was
cancelled. Beyond the fact that it was Cross who first suggested
that the meeting should not go forward, Reedy had already made the
unwelcome conditions of the meeting clear before Cross identified
himself. Hamrick next argues that GSK proposed to discuss off-
label branding following the identification of Cross in order to
learn whether Hamrick was a relator, but Reedy had requested to
speak with Hamrick about his misbranding allegations prior to any
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communications from Cross. Hamrick then attempts to raise
suspicion from GSK's two-month silence following Cross's first
communication to GSK, but he identifies nothing in the process
following this silence that would cause a reasonable jury to infer
that anything had been amiss in the interim.20 And when GSK did
respond, the fact that it elected to do so through its own outside
counsel is hardly eyebrow-raising.21
Finally, Hamrick returns to a truncated version of his
competing narrative, pointing to the fact that the ultimate notice
of termination came only nineteen days after Cross supposedly
confirmed Hamrick's role as a relator by indicating to GSK in a
September 24, 2004, letter that Hamrick "was not at liberty to
discuss" off-label branding. See Harrington, 668 F.3d at 33("[C]lose temporal proximity between relevant events" can "give
20 Hamrick cites to Soto-Feliciano v. Villa Cofresí Hotels,
Inc., 779 F.3d 19 (1st Cir. 2015), for the proposition that "gaps
in the defendants' account . . . raise a genuine issue of material
fact concerning pretext," id. at 29. Soto-Feliciano, however,
referred to an employer's contemporaneous silence as to instances
of misconduct that the employer later cited as reasons for an
employee's termination; it did not hold that a period of inactivity
by itself creates a jury question.
21 Hamrick objects that GSK initiated contact not through an
employment attorney but through its outside "qui tam counsel," who
had been in contact with GSK about Hamrick's employment situation
since Hamrick's return from medical leave in February 2004. We
agree that the involvement of qui tam counsel supports an inference
that GSK suspected Hamrick might be a relator. The availability
of such an inference, while likely required to support a
retaliation claim, is not by itself sufficient to establish a jury
question as to pretext, especially where a fully independent and
compelling reason for the action exists.
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rise to an inference of pretext."). Putting aside the fact that
Cross had already informed HR three months prior that Hamrick
"[wouldn't] be able to answer any questions on" off-label
promotions, Hamrick's temporal nexus claim fails for an even more
obvious reason: Hamrick had already been on the path to discharge
for at least five months prior to the "implicit confirmation" on
which he now relies. While Hamrick was indeed terminated nineteen
days after Cross's communication, what Hamrick fails to mention is
that he was fired thirteen days after he failed to meet a final
deadline for responding to charges of extreme misconduct--a
deadline that had been set before Cross sent his letter. No
reasonable jury could believe that Cross's last-minute letter was
a factor in Hamrick's termination.
In sum, GSK's straightforward narrative coheres nicely
with the record: Following Hamrick's return from medical leave, he
exhibited renewed and even more serious signs of instability and
homicidal ideation, which manifested themselves in a series of
graphic threats at a conference in Dallas, giving rise to
reasonable concerns about workplace violence. GSK promptly
removed Hamrick from the workplace and began severance
negotiations. When those negotiations broke down, GSK sought a
meeting with Hamrick to discuss his serious misconduct, as well as
an independent violation of GSK's Safe Driver Policy that had since
come to light. After Hamrick exhibited unwillingness on three
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occasions to participate in such a meeting on GSK's standard terms,
GSK terminated him. While the imagination of skilled counsel might
have been sufficient to raise an inference of pretext in the face
of a less cogent and compelling explanation for Hamrick's
termination, no reasonable jury could in this case be swayed by
Hamrick's largely speculative attempts to dislodge GSK's asserted
motivation from its grounding in the record evidence. If his role
in the qui tam action played any role in his termination, perhaps
it caused GSK to tread more carefully and slowly than it otherwise
might have before striking the final blow. No reasonable jury,
though, could find that the qui tam action was GSK's reason for
terminating Hamrick.
IV. Conclusion
Finding that the district court did not abuse its
discretion in declining to conduct in camera review of the items
on GSK's privilege log, and finding that the district court
properly granted summary judgment to GSK, we affirm the rulings
below.
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