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First Circuit holds that jury could find that “Big Dig” contractor which supplied substandard concrete retaliated against whistleblower

Yesterday, the First Circuit Court of Appeals, which has jurisdiction over Maine, Massachusetts, and other states, ruled that a reasonable jury could find that Aggregate Industries retaliated against a whistleblower who revealed the company’s illegal practices in connection with the “Big Dig.” The Big Dig was a massive highway project, built largely with federal funds, which transformed vehicular traffic in Boston. The whistleblower that brought the case against Aggregate blew the whistle on Aggregate’s decision to provide substandard concrete to the Big Dig.

The Court held that a reasonable jury could find that Aggregate violated the whistleblower protection provisions of the False Claims Act (FCA) when it terminated the whistleblower’s employment. Prior to the whistleblower’s termination, he and others had filed a “qui tam” lawsuit which alleged that Aggregate supplied substandard concrete to the Big Dig. A qui tam lawsuit is a lawsuit where a private individual can sue a company that has defrauded the federal government. If the individual prevails, the federal government recoups most of the defrauded money but some of the money goes to the individual who brought the lawsuit as an incentive for whistleblowers to come forward.

Aggregate settled the qui tam lawsuit for several million dollars and then 72 hours later it fired the whistleblower. The Court found this timing suspicious and held that it constituted evidence that Aggregate retaliated against the whistleblower in violation of the FCA. Aggregate claimed that it fired the whistleblower because he refused to submit to a repeat drug test after an initial drug test allegedly came back inconclusive. The Court held that a reasonable jury could disbelieve this explanation for several reasons. For instance, Aggregate violated its own policies. When the whistleblower provided a urine sample to Aggregate, it split the sample into two specimens. The first specimen resulted in an inconclusive test. When the test allegedly came back inconclusive, Aggregate refused to test the second specimen, contrary to its own policy, and demanded that the whistleblower submit another urine sample. Aggregate claimed that it lost the second specimen but no witnesses actually verified that it was, in fact, lost. In fact, a witness for Aggregate said that standard testing procedures made it “highly unlikely” that a specimen could be lost.

If your employer is engaging in illegal activity and you are considering blowing the whistle, you should contact an experienced employment lawyer to learn about your rights. Employers who decide to retaliate against a whistleblower usually create a pretext, or an untrue excuse, to mask its retaliatory motive. An experienced employment lawyer can help you protect yourself if you blow the whistle and your employer tries to create a pretext to fire you.