Abril-Rivera v. Johnson, 806 F.3d 599 (2015)

Citation: Abril-Rivera v. Johnson, 806 F.3d 599 (2015)
Parent Document: Abril-Rivera v. Johnson, 806 F.3d 599 (2015)
Jurisdiction: United States (federal)
Effective Date: 2015-11-17
Original Source: https://www.courtlistener.com/opinion/3155371/abril-rivera-v-johnson/ ↗

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Plaintiffs cite Harrington v. Aggregate Industries Northeast Region, Inc., 668 F.3d 26 (1st Cir.2012), where we noted that “deviations from standard procedures, 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.” Id. at 33. But Harrington is easily distinguishable, and plaintiffs make no effort to explain why it should apply here. In finding that the plaintiff in Harrington, a whistleblower who was fired after he refused to take a drug test, had shown causation, we relied on evidence of very “close temporal proximity” (72 hours), deviations from the employer’s drug testing protocol, inconsistences in the employer’s accounts of the reasons for the drug test, and the “[e]oincidence[ ]” that the employee was singled out for a purportedly random drug test on his first day permanently back at work after his whistleblowing activities came to light. Id. at 32-34. Even there, we said the case was “close.” Id. at 34. Here, in contrast, plaintiffs cannot show temporal proximity, and the record discloses no shifting explanations for deviations from protocol or improbable “coincidences” giving rise to an inference of pretext.

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