Wrong causation standard used in whistleblower case

A district court erroneously analyzed a whistleblower’s wrongful termination complaint using a but-for causation framework, rather than the more generous contributing factor standard under the Food Safety Modernization Act, or FSMA, the 4th U.S. Circuit Court of Appeals has held.

Rather than consider all the evidence to determine whether a reasonable jury could side with the claimant, the district court granted summary judgment to the employer based on its explanation that the claimant was fired for dishonesty, not his protected activity.

Judge Pamela A. Harris said the District Court erred because the claimant’s conduct during the investigation “should be considered not in isolation, but in conjunction with [the claimant’s] evidence of contributing factor causation.”

“We hold only that a reasonable jury could infer from the record, considered as a whole, that something more than Finley’s alleged ‘dishonesty’ on March 24 contributed to his firing by Kraft Heinz, and that Finley’s increasingly urgent food safety complaints — culminating immediately before his termination — ‘affect[ed] his termination in at least some way,’” Harris wrote.

Judge Stephanie D. Thacker, as well as Judge Thomas T. Cullen, sitting by designation from the Western District of Virginia, joined Harris in vacating and remanding Finley v. Kraft Heinz Inc. (VLW 025-2-284).

Rare case

Stephani L. Ayers of T.M. Guyer and Ayers & Friends in Miami said this was “one of those rare cases” where co-workers were not afraid to support a whistleblower. “We had three co-workers who offered testimony about our client’s complaints, including a food safety manager,” she said.

When her client was fired, Ayers said the employer was in the process of installing X-rays to detect bone fragments. “But if you’re not using the machines correctly, then it’s just a signoff without proper validation,” she noted. “These issues occurred about every six months.”

In her practice representing whistleblowers, Ayers said that “from time-to-time, federal judges have tried to invoke the Title VII framework, maybe because they are more familiar with it. We have even seen it in litigation with the Department of Labor.”

“Whistleblower statutes are first administered by the Department of Labor, where you can have a hearing or remove the case to federal court, as we did here,” Ayers said. “This issue seemed appropriate for a federal court and compelling for a jury.”

“The district court adopted and muddled the magistrate judge’s causation language,” Ayers said, adding that “they don’t specialize in this type of law, so sometimes they get the standards a little fuzzy, and here the court said it was ‘a distinction with almost no difference.’”

The district court must now determine whether protected activity occurred. “I can’t imagine that the judge will say that our client did not raise a food safety issue,” Ayers said. “I think it’s a foregone conclusion that he’ll find protected activity and we’ll move to trial.”

Attorneys for Kraft Heinz did not respond to a request for comment.

The termination

As a production manager at a Kraft Heinz plant in South Carolina, Wilbert Finley was responsible for product quality and food safety of bacon and deli meat products. Finley began complaining about improperly sealed packages and the presence of large bone fragments.

Finley’s complaints increased in early 2020 and he stopped production to show managers the issues. According to Finley, Kraft Heinz disregarded his complaints and managers criticized him. Kraft Heinz suspended Finley 12 days after his last complaint and fired him two days later.

Finley sued Kraft Heinz for violating the FSMA by firing him after he raised food safety concerns. Kraft Heinz countered that Finley was terminated for dishonesty during an investigation into the botched firing of another employee, Yolanda Gaines.

Kraft Heinz argued that one of Finley’s subordinates, Bobby Clark, had been instructed to terminate Gaines. Although both Finley and Clark signed the termination form, nobody fired Gaines, who continued working until March 24, 2020. A human resources investigation ensued.

The events of that investigation were disputed. Kraft Heinz maintained that Finley’s inconsistent explanations led to his termination for dishonesty and lack of integrity, regardless of any prior protected activity.

Despite the “undoubtedly close temporal proximity” between Finley’s complaints and firing, a magistrate judge said the causal inference that his protected activity was a contributing factor to his termination was severed by the legitimate intervening event of his firing for dishonesty.

The district court agreed that Finley could not show that his complaints were a contributing factor to his termination. Further, the court disregarded Finley’s comparator and retaliation evidence because Kraft Heinz would have fired him for other reasons.

Finley appealed the court’s grant of summary judgment to Kraft Heinz.

‘Broad and forgiving’

The FSMA instructs courts “to review retaliation claims under a ‘contributing factor’ standard commonly used in whistleblower statutes,” Harris clarified, adding that the district court erroneously used the but-for causation framework from statutes like Title VII and the ADEA.

“This is a meaningful difference; as the Supreme Court has explained [in Murray v. UBS Sec., LLC], the contributing factor standard is more generous to employees and ‘not as protective of employers’ than causations standards under other statutes,” Harris pointed out.

Congress designed the contributing-factor for “‘contexts where the health, safety, or well-being of the public may well depend on whistleblowers feeling empowered to come forward,’” she explained.

Here, Finley needed to establish by a preponderance of the evidence a prima facie case that his protected activities tended to have any effect on Kraft Heinz’s decision to terminate him.

“‘This element is broad and forgiving,’ Harris wrote, looking to Feldman v. Law Enf’t Assocs. Corp. Finley “‘need not show that the activities were a primary or even a significant cause of his termination,’” she added.

“So long as his complaints ‘affect[ed] his termination in at least some way,’ he has made the necessary showing,” the judge said.

“At that point, the burden shifts to Kraft Heinz, which may nevertheless prevail if it can establish, by clear and convincing evidence, that it would have taken the same action and fired Finley even ‘in the absence of [his] protected activity,’” Harris noted.

Intervening event

Like any intervening event, Kraft Heinz’s investigation of the Gaines incident must be considered in the district court’s causation analysis.

“But an ‘intervening event’ is not a talisman that makes all other evidence of causation disappear, establishing conclusively that there can be no connection between protected activity and an adverse action,” Harris wrote.

The events of Kraft Heinz’s investigation should have been “considered not in isolation, but in conjunction with Finley’s evidence of contributing-factor causation,” the judge said.

Harris compared this case to Feldman, which held that “a ‘legitimate intervening event, coupled with the passage of a significant amount of time after [the] alleged protected activities, sever[ed] the causal connection.’”

“An intervening event may ‘undermin[e]’ the strength of an inference that otherwise would arise from temporal proximity,” the judge said. “But the question at summary judgment remains the same: In light of all the evidence, including the intervening event, could a reasonable jury conclude that Finley’s protected activity tended to affect his termination?”

Because Finley correctly objected that evidence supporting Kraft Heinz’s position did not negate his own evidence, the district court erred by not considering all the evidence to determine whether a reasonable jury could side with Finley.

Subtle distinction

Whether Clark was a valid comparator to Finley was genuinely disputed. Finley argued that he was disciplined more severely than others involved in the Gaines incident, leading to an inference that Kraft Heinz singled him out because of his prior safety complaints.

“The district court believed that sorting through this dispute would require it to ‘speculate’ about what really happened,” the judge said. “That is correct — and precisely why whether Clark is a valid comparator cannot be determined, on this record, as a matter of law.”

Harris also found genuine questions regarding the reason for Finley’s termination, as well as Finley’s role — if any — in the Gaines incident because evidence was in conflict about whether he intentionally lied or was merely inconsistent during the investigation.

The judge opined that the issue was not a matter of semantics, but rather a “subtle distinction.”

“[F]or a jury charged with determining the credibility of Kraft Heinz’s position that it would have fired Finley for his March 24 conduct — the difference between an intentional lie and an alleged inconsistency over the course of a day of meetings — could very well make a difference,” she pointed out.

A reasonable jury could infer that something more than Finley’s alleged dishonesty contributed to his firing, and that his increasingly urgent food safety complaints before his termination affected his termination in at least some way, the panel held.

“And for much the same reason, a jury could also doubt Kraft Heinz’s position that it would have taken the ‘same action’ – firing Finley, while leaving Clark undisciplined — even if Finley had never voiced a concern about food safety,” Harris wrote.

Concluding that the District Court erred in awarding summary judgment to Kraft Heinz, the panel vacated that ruling and remanded the case.