Former Glaxo Employee Loses Battle Over Firing


 

Hamrick Decision (PDF) 

 

 

http://blog.skoler-abbott.com/2016/02/26/employee-who-made-death-threats-cannot-proceed-with-retaliation-claim/

Employee Who Made Death Threats Cannot Proceed with Retaliation Claim

by Stefanie M. Renaud

Retaliation claims often turn on the legitimacy of an employer’s stated reasons for termination.  In order to prevail in a retaliation lawsuit, the employee has the burden of demonstrating that the employer’s stated reasons are a pretext for unlawful retaliation. As a recent case before the First Circuit Court of Appeals demonstrated, this can be particularly difficult if the reason for termination is that the employer had made death threats against his coworkers.

Plaintiff Blair Hamrick filed a lawsuit under the False Claims Act, 31 U.S.C. § 3729, et seq., which allows individuals to bring lawsuits on behalf of the U.S. government.  In her complaint, Hamrick alleged that GSK had committed fraud by marketing several products for off-label uses.  Hamrick found participation in the ensuing investigation stressful and began to abuse alcohol.  He was convicted of driving while alcohol impaired (“DWAI”), and subsequently took a leave of absence. Hamrick did not report his DWAI conviction to GSK, despite a company policy requiring him to do so.

Upon returning from leave, Hamrick, who owned “three or four” guns at the time, displayed increasingly alarming and paranoid behavior.  Hamrick made death threats against coworkers, told coworkers he obsessed about killing certain coworkers, and told coworkers that he would “like to take a gun and shoot some people.”  After these comments were reported to management, GSK placed Hamrick on paid administrative leave.  GSK then attempted for several months to negotiate a severance agreement, before eventually terminating Hamrick.  Hamrick then modified his complaint to include a claim for retaliation.  The District Court dismissed Hamrick’s retaliation claim at the summary judgment stage, finding that no reasonable jury could conclude that GSK’s reasons for terminating Hamrick – his violation of company policy and threats of workplace violence – were pretextual.  Hamrick appealed the decision to the First Circuit Court of Appeals.

On appeal, Hamrick argued that the 56 items that GSK withheld from Hamrick during discovery due to attorney-client privilege were not privileged because the attorneys were making business decisions instead of offering legal advice.  The First Circuit affirmed the District Court’s actions and concluded that GSK had acted as any sophisticated party would under the circumstances by consulting extensively with their counsel before taking any action against Hamrick.  The Court concluded that the privilege was appropriate because there was no reason to doubt that the attorneys had been offering legal advice.

Regarding the alleged retaliation, the First Circuit concluded that, if anything, the fact that Hamrick was a whistleblower “caused GSK to tread more carefully and slowly than it otherwise might” in terminating Hamrick.  The Court also looked favorably upon the fact that GSK took no actions after learning about the initial lawsuit that suggested any type of retaliatory animus.

The case underscores two big lessons for employers.  First, there is no substitute for the advice of experienced and knowledgeable employment counsel when terminating employees who may be whistleblowers or who present a particularly challenging case for termination.  Second, sound reasons for termination decisions are invaluable in defeating claims of retaliation.

(SEE PDF ABOVE FOR DETAILS OF THIS CASE)

Whistling In The Wind..


Yesterday I posted a public document which gave a judgement from a judge presiding over part of the GSK whistleblower complaint (which led to a record breaking 3 Billion dollar fine for GSK in 2012, after a US dept of Justice investigation). The complaint itself goes back decades, and in this particular part of the legal case, one of the ‘whistleblowers’, Blair Hamrick, was recently denied compensation for his claim for ‘unfair dismissal’.  I have no idea how much exactly Blair expected to receive with this part of the claim, but I gather it would likely be in the “few million” bracket. However, I’m sure Blair probably isn’t feeling overly hard-done-by considering the multiples of millions he has already received from his original whistleblower case.

I found this document interesting because, although the 3 billion dollar fine itself made headline news back in 2012, little is known about the whistleblowers themselves. The only whistleblower who seems to have made much media appearances, since GSK were fined, is Blair Hamrick, and the (now failed) unfair dismissal case (which I posted yesterday) was brought against GSK by Blair Hamrick. The other whistleblower Greg Thorpe seems to have been the first to instigate the case against GSK, therefore it would seem that it was Greg who blew the whistle initially. Greg has given just one interview, and is apparently still caught up in legal actions but is beginning to speak out.  However, apparently there were at least another 4 whistleblowers who were part of this case- Thomas Gerahty and Matthew Burke, were both mentioned in news articles but nothing has been forthcoming in the media from those two men. Why?

The two other apparent ‘whistleblowers’, have surnames Graydon, and LaFauci, and they  apparently filed suit much later than the others. Why are these two men not mentioned in news articles? (but they are mentioned in court documents here). What did they reveal? or was it just a rehash of the previous claims already filed? Furthermore, what has the dubious Dr. Piacentile (who seems to have made his living through whistleblowing and suing drug companies who once courted him) got do do with some of the later claims?

http://www.businesswire.com/news/home/20131104006221/en/Stone-Magnanini-LLP-Announces-1.3-Billion-Department#.VRQ2u0Yvlo4

Stone & Magnanini, a firm with a history of representing whistleblowers in groundbreaking settlements, represented Dr. Joseph Piacentile, a physician who was the first to blow the whistle on Johnson & Johnson and Janssen’s fraudulent conduct back in 2001. Following Dr. Piacentile’s filing, five other whistleblowers filed actions against the companies, and relators and their counsel formed a team to assist Government lawyers in achieving this groundbreaking settlement.

I have always thought that the GSK 3 Billion fine was a slap on the wrist for GSK, and I have also thought that paying out whistleblowers such high amounts of cash was  bordering on obscene, particularly considering some of these drugs (detailed in the court complaint) killed people, and most of them caused a lot of harm. I understand that some of the whistleblower’s took risks, and should be rewarded for loss of earnings etc, but I don’t believe that all these whistleblowers were genuine whistleblowers. It would be interesting to ask them what drugs did they prescribe off-label themselves? (if any?). Why, and when did they decide to come forward, was it before or after they realized they would get rewarded handsomely? These are important questions.

There is no money that can replace the loss of your life from a drug like Seroxat (Paxil), or the loss of your health, and anyhow most people can’t get GSK anywhere near a court to claim compensation for that, particularly in the UK and Europe. In my opinion compensation from GSK is blood money, plain and simple- it is money tainted with bad karma, unless the person receiving it was a victim, or a real whistleblower (with genuine intentions not just freeloading on the back of a potential payout)- then I think the money is seriously tainted… Think of it this way- any money GSK has, and any money it pays out, has been earned on the back of fraud and corporate murder. It’s blood money– no doubt about it. It’s money soaked from the blood of Seroxat teenage suicides,  Avandia heart attacks, babies with defects…

Another intriguing aspect of all this is, what happened to the Paxil complaint? Why did the main part of the original fine allegations focus on Advair? Why not Avandia or Paxil (Seroxat)? It seems to me that GSK got off extremely lightly for their most dangerous and damaging drugs- Paxil and Avandia- and that the department of Justice allowed the least damaging complaint (Advair) to gain the most traction and attention- particularly in the media. Why are the whistleblowers not talking about the whitewash and the deal that GSK did with the justice department?  It was obviously a good deal for GSK- 3 months profits for decades of damaging and killing tens of thousands of people? why are they not talking about the nitty gritty of what GSK did- corporate manslaughter and corporate murder? Why did the big executives walk away scot free? What really happened in the dubious Lauren Stevens trial? What was Witty’s involvement (pre CEO) with Wellbutrin? (one of the main fraudulent drugs mentioned in the original DOJ complaint?).

If anyone has any information on any of this, please contact me on my e-mail

truthman30@gmail.com

Thanks


Money: Pink Floyd

Money, get away
Get a good job with more pay and you’re okay
Money, it’s a gas
Grab that cash with both hands and make a stash
New car, caviar, four star daydream
Think I’ll buy me a football team

Money, get back
I’m all right Jack keep your hands off of my stack
Money, it’s a hit
Don’t give me that do goody good bullshit
I’m in the high-fidelity first class traveling set
And I think I need a Lear jet

Money, it’s a crime
Share it fairly but don’t take a slice of my pie
Money, so they say
Is the root of all evil today
But if you ask for a raise it’s no surprise
That they’re giving none away
Away, away, way
Away, away, away

Interesting…


BlairGSK-1

___________________________________

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 03-10641-RWZ
UNITED STATES OF AMERICA ex rel. Gregory Thorpe, et al.
v.
GLAXCOSMITHKLINE PLC, et al.
MEMORANDUM OF DECISION
March 6, 2015
ZOBEL, D.J.
Plaintiff Blair Hamrick brought this suit under the anti-retaliation provision of the
False Claims Act (“FCA”), 31 U.S.C. § 3730(h), for his termination from employment at
the defendant GlaxoSmithKline (“GSK”). GSK has moved for summary judgment.
I. Background
Plaintiff spills much ink recounting his long and difficult history at the company,
including various perceived and actual slights and mistreatment, all of which is
irrelevant to the present cause of action. The essential facts for this opinion follow,
taken from the undisputed record.
Blair Hamrick began work at GSK as a pharmaceutical sales representative in
Colorado in 1997. On January 30, 2002, plaintiff met with a GSK Compliance Officer to
discuss plaintiff’s allegations regarding off-label drug presentations sponsored by GSK.
Case 1:03-cv-10641-RWZ Document 197 Filed 03/06/15 Page 1 of 8
2
On October 19, 2003, Hamrick was cited for driving under the influence of
alcohol (“DUI”). On October 24, 2003, he voluntarily took a medical leave of absence
because of anxiety and symptoms of post-traumatic stress disorder. On January 22,
2004, Hamrick pled guilty to driving while alcohol impaired (“DWAI”) in connection with
the October 2003 DUI citation.
Plaintiff returned to work on January 27, 2004, in his then current position as
Senior Executive Sales Representative. On January 29, he had a call with Gail
Fletcher and Claudia Pattison, managers in the Human Resources Department (“HR”),
concerning his allegations of off-label drug presentations. On February 12, he met with
Pattison to continue discussing his concerns regarding off-label drug presentations.
During the February 12, 2004, meeting with Pattison, plaintiff expressed anger
towards his co-worker Peter Copeland, saying that he “would never do this, but …
[Peter] is lucky I don’t rip his trachea out of his throat.” Pattison was particularly
concerned about this violent ideation, as she was aware Hamrick in fact carried a gun.
On March 16, 2004, Hamrick attended a GSK conference in Dallas, Texas.
During the conference, while under the influence of prescription anti-anxiety
medications and alcohol, he made several threats of violence against GSK managers.
Three GSK employees reported plaintiff stating, and plaintiff does not dispute stating,
the following:
• “I hate this company. I’ve hated it since the merger. I’d like to take a gun
and shoot some people.”

• “[I]f there’s one thing I need from a 30-day psych leave, it’s another leave.
Case 1:03-cv-10641-RWZ Document 197 Filed 03/06/15 Page 2 of 8
3
You don’t understand, I’m obsessed with these thoughts. Let me give you
an example. I’ve been having these dreams where I am in a wrestling
match with Jerry [Nelson] and Pat [Keith] and I hit Jerry in the eye and his
eye pops out and I hit Pat and crush his windpipe.”

• “I’d like to kill [Jerry Nelson]. No, I wouldn’t have any remorse
whatsoever. I’d like to kill him.”

• “I want to kill that fucker [Pat Keith].”

• Hamrick was also reported to have said he was having dreams of
jamming his thumbs into Pat Keith’s eyes and ripping the eyeballs out.
GSK’s “Violence-Free Workplace Policy” states that
“[a]ny person who threatens, [or] exhibits threatening behavior … on [GSK]
property or at [Gsk] sponsored events will be removed from the premises
immediately, and will remain off premises pending the outcome of an
investigation. A timely investigation will be made concerning the allegations.
Should the investigation substantiate that violations of this policy have ocurred,
[GSK] will initiate a decisive and appropriate response.”
Pursuant to that policy, Hamrick was immediately placed on administrative leave with
pay pending an investigation into his statements in Dallas.
During this administrative leave, GSK became aware of Hamrick’s DUI citation
and DWAI conviction through its annual motor vehicle record check of those who, like
Hamrick, possessed company-owned vehicles. He had not reported either occurrence
to GSK, in violation of company policy.
In light of the reason for Hamrick’s leave, GSK requested he undergo a fitness
for duty (“FFD”) evaluation on April 2, 2014, with an understanding by Hamrick that
refusal to undergo the FFD would be grounds for termination. In response to this
request, Hamrick provided a letter from his own psychiatrist, Dr. Crandall, stating her
Case 1:03-cv-10641-RWZ Document 197 Filed 03/06/15 Page 3 of 8
4
opinion that Hamrick is capable of performing his job responsibilities at GSK. Doctor
Crandall had not evaluated Hamrick since his violent threats.
On April 19, plaintiff sent GSK a request for severance. On June 2, GSK
responded with a counter-offer, and on June 6, plaintiff rejected the counter-offer and
stated that he no longer wished to resign.
GSK’s then Director of HR, Bill Reedy, scheduled a meeting with Hamrick on
June 23 to discuss Hamrick’s allegations about off-label marketing and his violations of
policy (his driving offense and his threats of violence). Hamrick was informed that, per
company policy, he could be accompanied by his attorney when GSK’s attorneys were
present during the meeting, but not during the HR portion of the meeting when no GSK
attorneys would be present, which would cover his conduct issues.
On June 22, Hamrick’s attorney, Keith Cross, informed Mr. Reedy that Hamrick
would not meet with GSK without his attorney present. Due to this refusal, the meeting
was cancelled. On September 1, GSK’s outside counsel, Geoffrey Hobart, sent Cross
a letter concerning Hamrick’s refusal to meet with GSK, and explained that Hamrick
was bound by GSK’s Code of Conduct, and that “failure to fully cooperate with an
investigation of an incident that occurs in the workplace” would be a further violation of
company policy, potentially subjecting Mr. Hamrick to termination.
There followed a series of communications between counsel for the parties. On
September 3, Cross responded, setting multiple conditions and terms of any meeting
between Hamrick and GSK. On September 20, Hobart reiterated the company’s
request for an investigatory meeting and again stated that Cross could attend the
Case 1:03-cv-10641-RWZ Document 197 Filed 03/06/15 Page 4 of 8
5
portions of the meeting regarding off-label marketing but not those portions solely
concerning the HR investigation of Hamrick’s threats and unreported driving infraction.
On September 24, Cross informed Hobart that plaintiff would not meet with GSK. On
October 13, GSK informed Hamrick, through his attorney, that he had been terminated
due to his threatening and violent statements regarding GSK employees, his failure to
report his DUI citation and DWAI conviction, and his refusal to cooperate with GSK’s
investigation.
II. Standard of Review
Summary judgment is appropriate when the moving party shows that there is no
genuine dispute of material fact and the movant is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(c). In considering whether or not a genuine issue of material
fact exists, the court “must view the evidence in the light most favorable to the opposing
party.” Tolan v. Cotton,134 S. Ct. 1861, 1866 (2014). Only if “a reasonable jury,
drawing favorable inferences, could resolve [the motion] in favor of the nonmoving
party” is the dispute genuine. See Travers v. Flight Sers. & Sys., Inc., 737 F.3d 144,
146 (1st Cir. 2013).
III. Analysis
The burden in this case is on the plaintiff to show (i) that he was engaged in
conduct protected under the FCA; (ii) the employer had knowledge of this conduct; and
(iii) the employer retaliated against the employee because of this conduct.” Harrington
v. Aggregate Indus. Ne. Region, Inc., 668 F.3d 25, 31 (1st Cir. 2012). Once this prima
facie showing is made, the burden shifts to the employer to provide a legitimate, non-
Case 1:03-cv-10641-RWZ Document 197 Filed 03/06/15 Page 5 of 8
6
retaliatory reason for the adverse employment action. When the employer provides
such a reason, it is the plaintiff’s burden to raise a jury question as to whether the
reason provided is merely “a pretext calculated to mask retaliation.” Id.
The standard for this case is laid out in the First Circuit’s decision in Travers v.
Flight Services & Systems, Inc., 737 F.3d 144 (1st Cir. 2013). In Travers, the First
Circuit reversed a trial court’s grant of summary judgment in an employment retaliation
case:
“[T]he applicable standard requires “but-for” causation. … [Plaintiff]’s
claim would fail if [defendant] would have fired him absent retaliatory
animus. And [defendant] also correctly reasons that the evidence here
would allow a reasonable jury to conclude that [defendant] would have
fired [plaintiff] … even if he had never [engaged in protected activity]. On
… summary judgment … , however, the question is not whether a
reasonable jury could find that [defendant] would have fired
[plaintiff] even in the absence of retaliatory intent. Rather, the
question pertinent to our review of summary judgment is whether no
reasonable jury could find otherwise.”
Travers, 737 F.3d at 148 (emphasis added).
There is no dispute that Hamrick was engaged in protected activity and that GSK
was aware of that activity from as early as 2002. The decision to terminate Hamrick
came only shortly after implicit confirmation to GSK that he was, in fact, a qui tam
relator. This temporal proximity is, perhaps, sufficient to give an inference of animus,
so I assume, without deciding, that plaintiff’s prima facie burden was met.
Defendant provides a substantial non-retaliatory basis for its decision to
terminate Hamrick, linked to three main things. First, the company cites Hamrick’s
erratic behavior and verbal threats made before and during a company retreat in March
Case 1:03-cv-10641-RWZ Document 197 Filed 03/06/15 Page 6 of 8
7
2004. Second, it points out Hamrick’s failure to disclose to the company his conviction
of DWAI, in contravention of company policy requiring its disclosure. Third, GSK notes
that company policy requires the termination of employees who refuse to cooperate
with internal investigations, and defendant’s refusal to fully comply with GSK’s
investigation into his erratic behavior and fitness for duty, by setting conditions to his
meeting with the company. These events, taken together, are more than enough to
shift the burden back to plaintiff.
The remaining question is whether plaintiff can point to sufficient evidence to
allow a reasonable jury to find that, but for his protected whistleblowing activity, he
would not have been terminated. Plaintiff is right that he may, to some extent, rely on
timing-driven inference to make out his case for retaliation to a jury. See Harrington,
668 F.3d at 33 (the “sequence of occurrences leading up to a challenged decision, and
close temporal proximity between relevant events” can “give rise to an inference of
pretext.”). However, other than a generic pattern of alleged mistreatment, going back
several years and attributable to many causes unrelated to his protected activity,
plaintiff has produced no evidence whatsoever, other than the loose temporal
inference, to support his allegation of retaliatory firing. In the face of the overwhelming
and largely undisputed evidence of defendant’s serious misconduct immediately
preceding the termination of his employment, he has failed to produce any evidence to
create a genuine issue of material fact, i.e., to provide a basis for a reasonable jury to
conclude that, but for his whistleblowing, he would not have been terminated.
IV. Conclusion
Defendant’s motion for summary judgment is ALLOWED.
Judgment may be entered for the defendant.
Case 1:03-cv-10641-RWZ Document 197 Filed 03/06/15 Page 7 of 8
8
March 6, 2015 /s/Rya W. Zobel
DATE RYA W. ZOBEL
UNITED STATES DISTRICT JUDGE
Case 1:03-cv-10641-RWZ Document 197 Filed 03/06/15 Page 8 of 8

GSK Whistleblower Blair Hamrick- ” I have suffered nothing compared to the parent of a child who committed suicide on Paxil”


He continued …

 

“Imagine how horrifying that is” .. “It’s so repulsive”… “You’re just talking about a bad company run by bad people in my opinion”… 

Damn right Blair.

What kind of company encourages the prescription of drugs which they know will harm kids? Many people lost loved ones to Paxil (Seroxat) and many more were damaged from this defective Glaxo pill.

.

http://fiddaman.blogspot.ie/2014/06/hey-glaxo-guess-whos-been-talking.html

Thursday, June 26, 2014

Hey Glaxo, Guess Who’s Been Talking?

GSK Whistleblower Blair Hamrick & Bob Fiddaman
I started writing this blog back in 2006. I had some issues with the antidepressant drug manufactured and marketed by British pharmaceutical giant GlaxoSmithKline. I also had some issues with the way drugs were regulated in this country by the British drug regulator, the MHRA.
Infinite Coincidence

"Do I contradict myself? Very well, then I contradict myself."

Rebel City Writers

A radical perspective on local, national and international issues from the pens of a few disgruntled agitators!

Critical Dispatches

Follow me on Twitter and Instagram @RichyDispatch

~ L to the Aura ~

sustainability. compassion. inspiration.

Chaos Theory and Pharmacology

A blog dedicated to the study of complex relationships in pharmacology. “Journalism is printing what someone else does not want printed: everything else is public relations.” ― George Orwell | CC-0

In the Wake of Suicide....trying to understand

I trust in you, O' Lord, my Savior, the One who died and rose again…. the One who brought me in and will carry me out, the Almighty waters and tides that bring us life. I come to You when there is no where else to turn, I come to You when there is. I look to You as my guiding Light, my Savior…. the One who created all I see- created my life and dreams before I knew myself~ created my talents and style before I knew the value~ I praise You and adore Your mystery. I will be strong and conquer as You would want for me. I beg of your blessings and miracles even though I am unworthy of Your power…. Yet, I trust in You~ and know You have already begun Your work. I love You. I don't know if that is a good enough word, "love"~ But I know You on a level---beyond words. Save me Lord. I will not let go of You. Hear me O' Lord. In Christ's Powerful Name Amen ~ By Brandon Heath

Heroes Not Zombies

becoming not being.......

DES Daughter Network

Because Social Media increases Awareness and brings the DES Community Together

recovery network: Toronto

people can and do recover from what is sometimes called "mental illness"

Deidra Alexander's Blog

I have people to kill, lives to ruin, plagues to bring, and worlds to destroy. I am not the Angel of Death. I'm a fiction writer.

MuseBoxx

Space to Create

Life and all things Love....

My Blog. My Life. My Words.

%d bloggers like this: