As employment lawyers we have seen some pretty awful examples of behavior in the workplace. If we are involved, we are usually helping our clients weigh the risk of litigation against the need to remove an employee from the company. When we consult with people we usually ask about whistleblowing activities.  After telling us about a report the employee might have made, or complaints the employee might have, our clients ask, “but doesn’t the employee’s bad behavior weigh against any claim that they are a whistleblower?” A jury will certainly weigh an employer’s reason for termination against the reasons argued by the employee, but do you want to trust a jury with that decision and pay attorneys' fees for getting the case to that point?

If you have been following our blog or attending any of our live seminars you know that lately courts have been denying summary judgment and allowing whistleblower claims to go to a jury so long as the employee can show any evidence, regardless of how speculative, that the employee was terminated because of a protected report. Even in cases where the employee does not dispute the facts supporting the employers reason for the termination, the court will allow the case to go to trial if the employee can at least argue an alternative, retaliatory reason for the termination. The principle in these “mixed motive” cases is that a jury should be the ones to figure out which motive controlled the decision. This raises an interesting question, can the terminated employee’s behavior be so bad that a court will dismiss a case even though the employee brings forward weak evidence of retaliation?

Last week, the First Circuit (arguably) said yes. In Hamrick v. GlaxoSmithKline LLC, a sales executive was terminated for making violent and graphic threats against people at work. After he was terminated, the sales executive sued GSK, not disputing the fact that he made the threats, but claiming that the real reason for the termination was that he filed a complaint to the U.S. Department of Justice under the False Claims Act. In upholding the District Court’s grant of summary judgment, the First Circuit made several statements which suggest, to this blogger at least, that the gravity of the Plaintiff’s threats caused them to examine the evidence of retaliation in a different light. Before even examining the employee’s evidence of retaliation the Court cautions:

“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.”

After examining and dismissing some of the employee’s evidence of retaliation, the Court further dismissed his lawyer’s argument that a deviation in procedure can give rise to an inference of retaliation. The Court explained: “[M]erely 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.” In summarizing their decision, the Court makes the most stark comment of the opinion: 

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 Hanrick’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.

We are left to wonder whether this case would survive summary judgment if the employee had not been terminated for threats of violence, but instead for not hitting a sales target. 

The First Circuit seems to be saying that if the employer had a remarkably compelling reason for terminating the employee, the court should more carefully scrutinize the employee’s evidence of retaliation. With the facts before it, I think the First Circuit got this right. But this case stands in contrast with many lower court cases which ignore the employer’s reason for termination and allow cases to move forward so long as the employee can make ANY argument that their termination was retaliatory in any way. This case also stands in contrast with the recent Maine Supreme Court cases eliminating the burden shifting requirements for whistleblower claims.