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.
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 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 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.
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 investigation for the off-label promotion of nine of its top-selling products.
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:
While at least one of Hamrick's co-workers did not take the remarks seriously, another expressed significant concern:
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 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
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 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.
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, 109 S.Ct. 2619, 105 L.Ed.2d 469 (1989) ("[T]he decision whether to engage in in camera review rests in the sound discretion of the district court.").
GSK's log of documents assertedly subject to the attorney-client privilege
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 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.
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.
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, 93 S.Ct. 1817, 36 L.Ed.2d 668 (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 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 non-retaliatory 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.
In considering what a reasonable jury might find in this case, the gravity of the conduct to which GSK points as its principal
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.
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.
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'
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 leave
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.
Hamrick nevertheless tries to argue that the timing of the breakdown in severance discussions raises a question about the 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.
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
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.
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 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.
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 gise 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 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.
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.