Labor & Employment – Food Safety Modernization Act – ‘Contributing Factor’ in Employee’s Dismissal

The record allows a reasonable jury to determine that Plaintiff’s food safety complaints contributed to Defendant’s decision to fire him, and that Defendant may not have made that decision if not for his food safety complaints.

We vacated the district court’s grant of summary judgment to Defendant and remanded.

Plaintiff alleged Defendant, his former employer, violated the Food Safety Modernization Act (FSMA) by firing him because he raised food safety concerns. The district court granted summary judgment to Defendant, holding Plaintiff could not show that his safety complaints were a “contributing factor” in his dismissal. We disagreed.

We think the record would allow a reasonable jury to determine that Plaintiff’s food safety complaints contributed to Defendant’s decision to fire him, and that Defendant may not have made that decision if not for his food safety complaints. First, a reasonable jury could give weight to the very close temporal proximity between Plaintiff’s complaints, the investigation into Plaintiff’s conduct, and Plaintiff’s firing. An intervening event does not automatically dispel any inference arising from temporal proximity. A jury considering all the evidence could find that a March 24 investigation weakened or even fully “severed” the inference. But it also could find that the fact that Plaintiff was deemed “dishonest” shortly after he increased the frequency of his objections to Defendant’s food safety procedures in February and March weighs in Plaintiff’s favor as part of the totality of the evidence.

Second, Plaintiff argued he was disciplined more severely than others involved in a co-worker’s non-firing, allowing a reasonable jury to infer Defendant singled him out because of his prior safety complaints. It is undisputed that one of Plaintiff’s subordinates was the co-worker’s direct supervisor and the person primarily in charge of her termination process, that Plaintiff’s subordinate had not previously raised food safety complaints, and that Plaintiff’s subordinate was not disciplined at all for his part in the botched co-worker firing. According to Plaintiff, a jury could reasonably infer that Defendant’s decision to impose the most severe disciplinary sanction on him and no sanction on his subordinate was affected in some part by Plaintiff’s prior complaints. We agreed. The district court held that the subordinate was not a valid comparator, adopting Defendant’s view that the subordinate, unlike Plaintiff, had not been dishonest during the investigation. But that is a genuinely disputed question of fact.

We held only that a reasonable jury could infer from the record that something more than Plaintiff’s alleged “dishonesty” on March 24 contributed to his firing by Defendant, and that Plaintiff’s increasingly urgent food safety complaints – culminating immediately before his termination – “affect[ed] his termination in at least some way.” And for much the same reason, a jury could also doubt Defendant’s position that it would have taken the “same action” – firing Plaintiff, while leaving the subordinate undisciplined – even if Plaintiff had never voiced a concern about food safety. Under those circumstances, the district court erred in awarding summary judgment to Defendant.

Vacated and remanded.

Finley v. Kraft Heinz Inc. (Lawyers’ Weekly No. 001-140-25, 20 pp.) (Pamela Harris, J.) Appealed from the U.S. District Court for the District of South Carolina, at Anderson (Timothy M. Cain, J.) ARGUED: Thad M. Guyer, T.M. GUYER & FRIENDS, PC, Medford, Oregon, for Appellant. Katelynn Mary Williams, FOLEY & LARDNER LLP, Madison, Wisconsin, for Appellee. ON BRIEF: Stephani L. Ayers, T.M. GUYER & FRIENDS, PC, Medford, Oregon, for Appellant. Daniel A. Kaplan, FOLEY & LARDNER LLP, Madison, Wisconsin, for Appellee. U.S. Court of Appeals for the Fourth Circuit