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United States ex rel. Hamrick v. GlaxoSmithKline LLC

United States Court of Appeals, First Circuit

February 17, 2016

UNITED STATES ex rel. BLAIR HAMRICK, Plaintiff, Appellant,
v.
GLAXOSMITHKLINE LLC, f/k/a SMITHKLINEBEECHAM CORP. d/b/a GLAXOSMITHKLINE, Defendant, Appellee, GLAXOSMITHKLINE, PLC, Defendant GREGORY W. THORPE; THOMAS GERAHTY; MATTHEW BURKE, Plaintiffs,

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APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS. Hon. Rya W. Zobel, U.S. District Judge.

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.

Before Lynch, Thompson, and Kayatta, Circuit Judges.

OPINION

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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.

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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 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.[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 investigation for the off-label promotion of nine of its top-selling products.[3]

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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 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:

o " I hate this company. . . . I'd like to take a gun and shoot some people."
o 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."
o " 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."
o " I'd like to fucking kill [Jerry]. No, I wouldn't have any remorse whatsoever. I'd like to kill him."
o 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

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with the gun when she was around, popping the clip in ...

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