Opinion
Civil Action 8:22-cv-426-TMC-KFM
07-13-2023
Wilbert Finley, Plaintiff, v. Kraft Heinz Foods Company, Inc., Defendant.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald, United States Magistrate Judge
This matter is before the court on the defendant's motion for summary judgment (doc. 50). Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and Local Civil Rule 73.02(B)(2)(g) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in employment discrimination cases and submit findings and recommendations to the district court.
BACKGROUND AND FACTUAL ALLEGATIONS
The defendant is a food and beverage company that operates a plant in Newberry, South Carolina (doc. 66-21, plaintiff decl. ¶ 1). At this plant, the defendant employs over 1,400 individuals and processes a variety of deli meats, including bacon (id.). The plaintiff was employed by the defendant at this plant from approximately November 2018 until March 2020 (id. ¶¶ 1-3). During the events in question, the plaintiff served as a production manager over the bacon department (id. ¶ 3). At various points during his employment, the plaintiff also served as a production manager over the rigid department, which involves products packaged in rigid plastic packaging (id.). The plaintiff's direct supervisor for most of his employment with the defendant was Josh Harp ("Mr. Harp"), the manufacturing manager over the plant's Ready-to-Eat ("RTE") division (id.).
The plaintiff's job description required, among other things, the following:
-Adhere to Kraft Heinz quality standards to ensure product quality and Food Safety by Good Manufacturing Practices (GMP's), standard operating procedures (SOP's) and Kraft Heinz specifications ...
-Organize and facilitate production line activities to ensure conformance to establish requirements regarding quality, safety, employee-relations, productivity and cost scheduled volume outputs ...
-Report on quality defect issues and help determine necessary corrective actions to eliminate repetitive failures ...
-Interprets company policies to workers and enforce[] policies and safety regulations ...
-Assist with the supervision of the Production staff including but not limited to performance management and employee development, etc[.](Doc. 50-2, plaintiff dep. ex. 6).
At the time of his declaration, the plaintiff had 35 years of manufacturing experience, including 27 years in food and beverage (doc. 66-21, plaintiff decl. ¶ 2). The plaintiff testified that prior to his employment with the defendant, he had significant training and experience in process re-engineering and workflow improvement, quality control and assurance, and regulatory compliance (id.). The plaintiff worked for Proctor and Gamble, Co. for eighteen years and served as a project manager overseeing production of 275,000 to 300,000 cases of product per day (id.). While at Proctor and Gamble, Co., the plaintiff also served as a project lead for the installation of new equipment and worked closely with health and safety inspectors (id.). In addition, the plaintiff worked for the Kellogg Company for almost five years, where he led several new equipment setups from initial analysis to final operations and had full responsibility for six high volume production lines for various well-known products, including millions of cases of Girl Scout Cookies (id.).
Kathryn Longerbeam ("Ms. Longerbeam"), the human resources ("HR") manager for the defendant during the events in question, provided in her declaration that the Newberry plant has a handbook ("plant handbook") that lays out many of the defendant's policies, procedures, standards, and expectations for its employees (doc. 50-5, Longerbeam decl. ¶ 4 & ex. A). The plant handbook includes the plant's food defense policy, which explains the defendant's stance on food safety and helps prevent, deter, identify, and respond to potential food safety concerns (id.). The food defense policy informs employees that if they suspect that there has been a violation of the policy, the employees must immediately report it (id.). The food defense policy also prohibits retaliation against employees who raise food safety concerns (id.). Additionally, employees are trained on the defendant's good manufacturing practices ("GMPs"), which, among other things, authorize employees to stop production when food safety concerns arise and require employees to immediately notify the quality department or a supervisor of any potential contaminant (id. ¶ 5; doc. 50-2, plaintiff dep. ex. 16). The plaintiff acknowledged that he attended training on the defendant's GMPs and that he was authorized to stop production for food safety concerns (doc. 50-2, plaintiff dep. 48:23 & ex. 16).
Janice Ball ("Ms. Ball"), a quality manager at the Newberry plant, testified in her declaration that the defendant maintains protocols to ensure that all product manufactured in the plant is safe for consumers (doc. 50-3, Ball decl. ¶ 4). Specifically, the bacon department engaged in continuous monitoring to detect and eliminate the presence of bone in the bacon and was required to make a report to the quality department if the safety of the product was in question (id. ¶¶ 5, 7). Prior to 2019, the Newberry plant used metal detectors and visual inspections to detect the presence of bone or foreign substances in the bacon (id. ¶ 6). However, in late 2019, the defendant contracted with an outside company to install x-ray machines on three of the five bacon production lines (id.). One of the bacon lines already had an x-ray machine installed (id.). These x-ray machines were intended to be used in addition to the metal detectors and visual inspections (id.).
Pursuant to the plant's protocol, when bone larger than 3/8th of an inch, which is known as the "burst limit," is identified in bacon - whether through visual, metal, or x-ray detection - production employees must immediately stop the line and contact the quality department for further instruction (doc. 50-3, Ball decl. ¶ 8). The quality department then conducts a root cause analysis to ascertain the scope of the problem (id. ¶ 9). While the quality department's investigation is ongoing, the product in question is placed on hold (id.). Based on its analysis, the quality department will instruct production employees on how to proceed (id.). For example, the quality department might order production employees to conduct online sampling, destructive sampling, or send the product to rework, and sometimes, a combination of these processes is ordered (id. ¶ 10). Online sampling requires that employees pull five slabs of bacon off the line every five minutes and fully inspect each slab for the presence of bone before it is packaged (doc. 50-2, Harp dep. ex. 1 & Ball dep. 12:11-15:5). Under destructive sampling, employees must open 900 individual packages of bacon and inspect every slice for the presence of bone (id.). Further, rework requires employees to send the product in question back to the "raw" side of the plant, where it will be processed for bone elimination, and any bone greater than 1/8th of an inch is eliminated from the product (id. at Harp dep. ex. 1 & Ball dep. 14:24-15:5, 19:2-6). Additionally, the quality department may direct production employees to send the product to "offal," meaning that it will be permanently discarded (doc. 50-3, Ball decl. ¶ 10).
The Plaintiff's Food Safety Complaints
In November 2019, Mr. Harp had concerns with the plaintiff's performance and put together an expectation letter (doc. 50-2, plaintiff dep. ex. 7 & Harp dep. 63:11-17). In this letter, Mr. Harp documented several areas that he wanted the plaintiff to make improvements on immediately, including, among other items, labor management, inventory management, improvement plans, time and presence, communication, timeliness of followups, execution, and knowledge of processes (id. at plaintiff dep. ex. 7). Also around this time, the plaintiff began critiquing what he "viewed as food safety taking a back seat to production" (doc. 66-21, plaintiff decl. ¶ 44). The plaintiff testified in his declaration that the bacon department was short-staffed in the summer of 2019 and that he raised concerns about this to both his production managers and HR on a weekly or even daily basis (id. ¶¶ 25, 28). The plaintiff stated that if the bacon department did not have the minimum required employees to run a line, the line did not run (id.). Accordingly, the next shift would then be pressured to work twice as hard, and the plaintiff believed that he could not assure food safety under those circumstances (id.). The plaintiff explained how short-staffing resulted in "not enough eyes on the product passing by on the conveyor line" and that, when this occurred, "the leakers will threaten food contamination and adulterants such as bone will be sold to consumers" (id. ¶ 27). The plaintiff also reported that there were problems with the certification, training, qualification, and experience levels of the available employees (docs. 66-21, plaintiff decl. ¶ 27; 66-7, Debrick decl. ¶ 5).
The plaintiff explained in his deposition that "leakers" were improperly sealed bacon packages (doc. 50-2, plaintiff dep. 46:6-16).
Ms. Longerbeam testified in her declaration that during that time period, many departments at the plant, including the bacon department, were short-staffed (doc. 50-5, Longerbeam decl. ¶ 8). Ms. Longerbeam stated that being short-staffed was common at the plant, especially with regard to production roles (id.). Further, Mr. Harp and Lauwana Wilson ("Ms. Wilson"), an HR business partner for the defendant, recalled discussing staffing efforts with the plaintiff (doc. 50-2, Harp dep. 74:23-75:7 & Wilson dep. 22:24-23:17). Additionally, Cumeico Debrick ("Ms. Debrick"), an area production manager for the defendant, testified in her deposition that she heard the plaintiff raise the issue of short-staffing to Mr. Harp and HR (doc. 66-15, Debrick dep. 86:1-14).
The plaintiff also submitted a complaint in mid-February 2020 regarding discarding bacon with bone in it to offal (doc. 50-2, plaintiff dep. 106:16-108:18). Ms. Ball testified in her declaration that during this time period, the bacon department experienced an uptick in small pieces of bone in the bacon meat, which was detected by both visual inspection and the x-ray machines (doc. 50-3, Ball decl. ¶ 13). Ms. Ball stated that production employees alerted her team to bone findings and placed all of the potentially impacted product on hold (id.). From there, her department investigated the problem, ascertained the root cause, evaluated the potentially impacted product, and directed production employees on the appropriate safety protocols and checks to follow in further handling of the effected product (id.). Ms. Debrick further testified in her deposition that the defendant decided to "run the product," and the plaintiff disagreed with this decision (doc. 66-15, Debrick dep. 34:11-36:13). Ms. Debrick stated that the plaintiff would "go into our meetings and go back and forth, saying - - like throughout the entire day, [he] would grab packages off the bacon line and bring them into the office and open them up and, you know, show all the bone fragments that were in the bacon" (id.). Marquis Glanton ("Mr. Glanton"), a supervisor for the defendant, also testified in his declaration that he accompanied the plaintiff at one point to "tell Quality that there were too many bones in the meat to safely run it" (doc. 66-24, Glanton decl. ¶ 6).
Ms. Debrick testified in her deposition that although she did not hear anything from someone in management, there were “conversations going around [that the plaintiff] better slow down before he gets termed, because he wanted to throw all that bacon away” (doc. 66-15, Debrick dep. 36:2-13). However, as argued by the defendant, the undersigned declines to consider this testimony as it is inadmissible hearsay. See Fed.R.Civ.P. 56(c)(4) (“An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.”); Greensboro Prof' Fire Fighters Assn, Local 3157 v. City of Greensboro, 64 F.3d 962, 967 & n.4 (4th Cir. 1995) (declining to consider an affiant's statements that it was “common knowledge” and “everyone . . . pretty well knew” that cooperating with union organizers “would bring trouble” because such statements were hearsay); Sumter v. Jenny Craig, Inc., C/A No. 3:14-cv-4460-CMC-SVH, 2016 WL 3397588, at *3 (D.S.C. June 21, 2016) (finding that affiants' statements that they heard rumors about why the plaintiff was fired was hearsay and “not proper support for an opposition to a summary judgment motion”).
Also in February 2020, the plaintiff reported to John Klein ("Mr. Klein"), a project engineer, and Waunda Wright ("Ms. Wright"), an employee in the quality department, that the x-ray machines were not being used properly (doc. 1, compl. ¶ 14). The plaintiff alleged that the x-ray machines had not been properly calibrated and the production department did not have the necessary test cards to ensure that the x-ray machines were detecting foreign material in the bacon (id.). The plaintiff further alleged that the quality department was supposed to validate the machines, ensure that everyone was trained, calibrate the cards, and remove the bypass keys to the machines, but the quality department had not done so (id.). Ms. Debrick stated that the plaintiff "was very concerned and vocal about the situation concerning the bone pieces found in the bacon," and she recalled the plaintiff reporting that the quality department "was not aware of the function of the x-ray and that they were not doing what they were supposed to do" (doc. 66-7, Debrick decl. ¶ 10; see also doc. 66-15, Debrick dep. 39:23-41:18). Ms. Debrick also provided that "[t]hough I supported [the plaintiff's] food safety concerns, I was scared to escalate them further" (doc. 66-7, Debrick decl. ¶ 12). Mr. Glanton similarly testified in his declaration that "[t]he safety culture at the Kraft Heinz Newberry Plant is not good. Employees fear and expect to be fired if they push food safety issues. I shared that fear" (doc. 66-24, Glanton decl. ¶ 14).
Test cards had a defect on them, such as a small piece of metal, ceramic, or glass, and they were taped to packages that were run through the x-ray machines (doc. 50-2, Klein dep. 8:15-21). If the x-ray machine was working properly, it would “kick out” the package with the test card taped to it (id.).
The Plaintiff's Employment Termination
Myah Perry ("Ms. Perry"), an HR generalist, asserted that the plaintiff turned in termination paperwork to HR on March 12, 2020, for a production employee, Yolanda Gaines ("Ms. Gaines"), which indicated that the plaintiff had walked Ms. Gaines out of the building on that date (doc. 50-2, Wilson dep. ex. 4 & Perry dep. 38:7-16). This form was signed and dated by the plaintiff and Bobby Clark ("Mr. Clark"), a bacon production supervisor, on the same date (doc. 50-4, Clark decl. ¶ 3 & ex. A). HR made repeated efforts to inform Ms. Gaines of her right to a type of "second-chance" attendance review meeting known as a Management Attendance Review ("MAR"), which was required before the official termination of her employment (doc. 50-2, Wilson dep. ex. 4). However, when these attempts were unsuccessful, HR officially processed Ms. Gaines' employment termination and deactivated her identification badge on March 23, 2020 (id.).
On March 24, 2020, Ms. Gaines arrived to work, and her badge did not work (doc. 50-2, Wilson dep. ex. 4). She reported to HR, and Ms. Perry learned that Ms. Gaines had not been walked out of the building on March 12, 2020, and had been reporting to work almost every day (id.). Ms. Perry then investigated the situation and spoke with Mr. Clark and the plaintiff (id.). Ms. Perry documented that Mr. Clark stated that on March 12, 2020, he planned to terminate the employment of four individuals, one being Ms. Gaines, for exceeding the number of absences allowed (id.). Mr. Clark stated that he walked three of the four employees out of the building, but Ms. Gaines was absent that day (id.). Mr. Clark explained that he then told the plaintiff that he was going to be on vacation the following day and that the plaintiff would have to inform Ms. Gaines of her employment termination and walk her out of the building (id.). Ms. Perry documented that the plaintiff stated more than once that he walked Ms. Gaines out of the building on March 12, 2020 (id.). The plaintiff also stated that he turned in Ms. Gaines' employment termination form (id.).
Faith Sheppard ("Ms. Sheppard"), an HR administrator who claimed to have witnessed Ms. Perry's conversations with both Mr. Clark and the plaintiff, was also interviewed (id.). Ms. Sheppard provided a written statement in which she noted that Mr. Clark stated that the plaintiff was supposed to walk Ms. Gaines out of the building because Mr. Clark was not at work (id.). Ms. Sheppard also documented that the plaintiff "stated that he had deactivated [Ms. Gaines'] badge Thursday and he didn't know she had been here. [The plaintiff] stated I did that Thursday. I'm not sure if he was talking about doing the badge or walking her out" (id.).
On the same day, Ms. Perry informed Ms. Wilson, Mr. Harp, and Ms. Longerbeam about what transpired with Ms. Gaines, as well as what Mr. Clark and the plaintiff told her when she spoke to them in her investigation (doc. 50-2, Wilson dep. ex. 4). Mr. Harp and Ms. Longerbeam exchanged instant messages on this date, stating as follows:
[Mr. Harp:] thoughts on [the plaintiff]?
[Ms. Longerbeam:] my thought - you and [Ms. Wilson] talk to him today to get an understanding from him on what happened. Sounds like dishonesty - saying he walked the employee out but didn't, termed for attendance or AWOL - doesn't seem honest and upfront. Suspend pending review?
[Mr. Harp:] that's what I was thinking[.](Doc. 50-5, Longerbeam decl. ¶ 10 & ex. C).
Ms. Wilson followed up on Ms. Perry's investigation later that day and interviewed the plaintiff and Mr. Clark (doc. 50-2, Wilson dep. 130:3-5 & ex. 4). Mr. Clark reiterated what he had told Ms. Perry earlier that day (id.). The plaintiff, however, told Ms. Wilson that he had not walked Ms. Gaines out because she was absent (id. at ex. 4). Then, the plaintiff claimed that Ms. Gaines had eventually shown up to work on March 12, 2020, and Mr. Clark walked her out (id.). The plaintiff denied telling Ms. Perry earlier that he walked Ms. Gaines out (id.).
Ms. Wilson and Mr. Harp continued the investigation and interviewed the plaintiff again on the same day (doc. 50-2, Wilson dep. ex. 4). The plaintiff "secretly recorded" this meeting on his cell phone, and he attached a transcript of the recording to his declaration submitted in this case (docs. 66-21, plaintiff decl. ¶ 78; 66-23). Both the transcript and the investigative summary report reflect that the plaintiff denied walking Ms. Gaines out on March 12, 2020 (docs. 50-2, Wilson dep. ex. 4; 66-23 at 4-7). Moreover, the transcript reflects that Mr. Harp informed the plaintiff that "I don't think there's any question about you didn't walk her out. . . . The question is around what things were said and whether you're being honest with us" (doc. 66-23 at 7). When asked if he submitted Ms. Gaines' employment termination form, the plaintiff stated multiple times that he did not know (docs. 50-2, Wilson dep. ex. 4; 66-23 at 2-3, 6-7). However, the plaintiff also stated, "I did not talk to that woman. I just turned it - - turned the paperwork in. I did not talk to that woman at all" (66-23 at 5).
The plaintiff subsequently provided in his declaration that Mr. Clark did not ask him to walk Ms. Gaines out of the building, he never turned in Ms. Gaines' termination paperwork to HR, and he never told Ms. Perry or Ms. Wilson that he walked Ms. Gaines out of the building (doc. 66-21, plaintiff decl. ¶¶ 61, 64, 75). Further, when asked in his deposition if he recalled ever assigning the plaintiff to walk an employee out of the building, Mr. Clark testified that he could not make that assignment because the plaintiff was his boss (doc. 66-16, Clark dep. 95:3-20). However, Mr. Clark elaborated that if he was absent and an employee needed to be walked out, this task "goes to . . . my boss" (id.). In contrast, the plaintiff provided that "[procedure was not that if Mr. Clark was absent, then he would assign me, his boss, to walk his employees out" (doc. 66-21, plaintiff decl. ¶ 61). In addition, Jesse Tracey ("Mr. Tracey"), a supervisor in the deli department for the defendant, testified in his declaration as follows:
On March 12, 2020, I was with [the plaintiff] at the Plant when Bobby Clark came up and said he had employee terminations to do and he had completed three out of four. Clark said he had not completed the fourth because the employee was not present that day but that he would take care of it when she came back.(Doc. 66-25, Tracey decl. ¶¶ 2, 5).
The plant handbook provides that dishonesty is a code of conduct violation that may result in employment termination at the first offense (doc. 50-5, Longerbeam decl. ¶ 6 & ex. A). Ms. Longerbeam testified in her declaration that the defendant consistently terminates employees for dishonesty in accordance with this policy and that, since 2017, the defendant terminated the employment of seven managers for dishonesty and 93 hourly employees for falsification at the Newberry plant (id. ¶ 6). Based on the inconsistencies in the plaintiff's statements, Ms. Wilson concluded that the plaintiff was being dishonest in violation of the code of conduct in the plant handbook (doc. 50-2, Wilson dep. 121:19-122:11 & ex. 4). Ms. Wilson ultimately recommended that the plaintiff's employment be terminated (id.). Ms. Longerbeam concurred with Ms. Wilson's recommendation, and Mr. Puckett approved the recommendation (docs. 50-5, Longerbeam decl. ¶ 9; 50-2, Puckett dep. 8:5-8). The plaintiff recognized during his deposition that he was not told during the phone call in which he was informed that his employment was terminated that the termination was due to his concerns about the meat (doc. 50-2, plaintiff dep. 202:1-9). When the plaintiff was asked in his deposition if he thought that Ms. Wilson and Mr. Harp were lying when they said his employment was terminated for dishonesty, the plaintiff stated, "I can't say they were lying. That was just their opinion, what they thought" (id. at 325:4-8).
The plaintiff filed a complaint with the Occupational Safety and Health Administration ("OSHA"), to which the defendant filed a position statement in response on November 16, 2020 (see doc. 66-8). On February 10, 2022, the plaintiff filed a complaint against the defendant in this court, alleging claims for retaliation in violation of the Food Safety Modernization Act ("FSMA"), 21 U.S.C. § 399d, and wrongful discharge in violation of South Carolina public policy (doc. 1). The defendant filed a motion to dismiss the plaintiff's South Carolina wrongful discharge claim, which the Honorable Timothy M. Cain, United States District Judge, granted on February 13, 2023 (docs. 13; 19; 34; 49). On February 23, 2023, the defendant filed a motion for summary judgment regarding the plaintiff's remaining retaliation claim (doc. 50). The plaintiff filed a response on April 7, 2023 (doc. 66), to which the defendant filed a reply on April 28, 2023 (doc. 68). Accordingly, this matter is now ripe for review.
APPLICABLE LAW AND ANALYSIS
Standard of Review
Federal Rule of Civil Procedure 56 states, as to a party who has moved for summary judgment: “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). As to the first of these determinations, a fact is deemed “material” if proof of its existence or nonexistence would affect the disposition of the case under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is “genuine” if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257. In determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The party seeking summary judgment shoulders the initial burden of demonstrating to the district court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in his pleadings; rather, he must demonstrate that specific, material facts exist that give rise to a genuine issue. Id. at 324. Under this standard, the existence of a mere scintilla of evidence in support of the plaintiff's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Id. at 248. “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id.
The FSMA
The plaintiff alleges that the defendant retaliated against him in violation of the FMSA by terminating his employment for raising concerns about food safety (doc. 66 at 20-34). The FMSA provides, in relevant part, as follows:
(a) In general
No entity engaged in the manufacture, processing, packing, transporting, distribution, reception, holding, or importation of food may discharge an employee . . . because the employee, whether at the employee's initiative or in the ordinary course of the employee's duties . . . -
(1) provided . . . to the employer . . . information relating to any violation of, or any act or omission the employee reasonably believes to be a violation of any provision of this chapter or any order, rule, regulation, standard, or ban under this chapter, or any order, rule regulation, standard or ban under this chapter;
. . . [or]
(4) objected to . . . any activity, policy, practice, or assigned task that the employee . . . reasonably believed to be in violation of any provision of this chapter, or any order, rule, regulation, standard, or ban under this chapter.21 U.S.C. § 399d(a)(1). Although there are no cases within the Court of Appeals for the Fourth Circuit substantively addressing a retaliation claim under the FSMA, courts in other circuits have relied on the language of the FSMA combined with cases applying similar antiretaliation and whistleblower statutes, including Title VII, the Sarbanes-Oxley Act ("SOX"), and the Federal Railroad Safety Act ("FRSA"). See, e.g., Byron v. Inst. for Env't Health, Inc., 428 F.Supp.3d 467, 471 (W.D. Wash. Dec. 19, 2019); Chase v. Bros. Infl Food Corp., 3 F.Supp.3d 49, 53 (W.D.N.Y. 2014). The undersigned finds these cases persuasive, and the parties here agree that, in accordance with those cases, a prima facie case of retaliation under the FSMA requires the plaintiff to show that (1) he engaged in activity protected under the FSMA, (2) he experienced an adverse employment action, and (3) the protected activity was a contributing factor in the adverse employment action (docs. 50-1 at 19; 66 at 22). See 21 U.S.C. § 399(d)(b)(2)(C). Moreover, if the plaintiff meets this burden, the defendant can nevertheless avoid liability if it proves by clear and convincing evidence that it would have taken the same adverse action in the absence of the plaintiff's protected conduct. See 21 U.S.C. § 399(d)(b)(2)(C)(ii) and (iv).
The plaintiff argues that he has established all three elements and that the defendant cannot counter by clear and convincing evidence that it would have made the same decision to terminate his employment absent his protected activity (doc. 66 at 20-34). The defendant, however, maintains that the plaintiff has failed to show the first and third elements of a prima facie case and that it would have still chosen to terminate the plaintiff's employment even if he had not submitted complaints (docs. 50-1 at 18-33; 68 at 2-15).
The undersigned finds that even assuming that the plaintiff's complaints were protected activity under the FSMA, he has failed to show the third element of a prima facie case - that a reasonable jury could conclude that his protected activity was a contributing factor in his employment termination. "A contributing factor is any factor, which alone or in combination with other factors, tends to affect in any way the outcome of the decision." Feldman v. Law Enft Assocs. Corp., 752 F.3d 339, 348 (4th Cir. 2014) (citations and internal quotation marks omitted) (SOX). "This element is broad and forgiving, and [t]his test is specifically intended to overrule existing case law, which requires a whistleblower to prove that his protected conduct was a significant, motivating, substantial, or predominant factor in a personnel action in order to overturn that action." Id. (internal citations and quotation marks omitted). "Temporal proximity between the protected activity and the adverse action is a significant factor in considering a circumstantial showing of causation . . . ." Id. (citation omitted). However, "[t]he causal connection may be severed by the passage of a significant amount of time, or by some legitimate intervening event." Id. (citation omitted).
Here, there is undoubtedly close temporal proximity between the plaintiff's complaints and his employment termination. Specifically, the plaintiff's latest complaints occurred in February 2020, and his employment was terminated in or around late March 2020. However, the defendant argues that the plaintiff's conduct during the investigation into Ms. Gaines' employment termination serves as a legitimate intervening event (doc. 501 at 30-31).
As discussed above, Ms. Perry believed that the plaintiff turned in Ms. Gaines' employment termination paperwork on March 12, 2020, and walked Ms. Gaines out of the building that day. However, Ms. Perry learned on March 24, 2020, that Ms. Gaines was never walked out of the building and had been reporting to work almost every day since March 12, 2020. Ms. Perry investigated the matter on the morning of March 24, 2020, and spoke with both Mr. Clark and the plaintiff. Ms. Perry documented that Mr. Clark stated that the plaintiff was supposed to walk Ms. Gaines out of the building on March 13, 2020. Although the plaintiff subsequently denied making these statements, Ms. Perry also documented that the plaintiff stated that he turned Ms. Gaines' employment termination paperwork into HR and walked Ms. Gaines out of the building on March 12, 2020. Ms. Perry then reported all of this information to Ms. Wilson, Mr. Harp, and Ms. Longerbeam on the same day. Also on March 24, 2020, Ms. Wilson followed up on Ms. Perry's investigation and spoke with both the plaintiff and Mr. Clark. Mr. Clark provided information that was consistent with what Ms. Perry had documented, but the plaintiff stated that he never walked Ms. Gaines out of the building because she was absent. Ms. Wilson documented that the plaintiff then stated that Ms. Gaines had eventually shown up to work on March 12, 2020, and Mr. Clark walked her out. Moreover, Ms. Wilson documented that the plaintiff denied telling Ms. Perry earlier that he walked Ms. Gaines out of the building.
At some point that day, Ms. Sheppard was also interviewed, and Ms. Sheppard documented that Mr. Clark said that the plaintiff was supposed to walk Ms. Gaines out of the building. Later that day, Ms. Wilson and Mr. Harp continued the investigation and met with the plaintiff again. Both the investigative summary report and the transcript from the plaintiff's recording reflect that the plaintiff denied walking Ms. Gaines out on March 12, 2020. When asked if he submitted Ms. Gaines' employment termination form, he stated multiple times that he did not know. However, the plaintiff also stated, "I did not talk to that woman. I just turned it - - turned the paperwork in. I did not talk to that woman at all" (66-23 at 5). Based on the foregoing, Ms. Wilson determined that the plaintiff had been dishonest in violation of the code of conduct and recommended that his employment be terminated. Ms. Longerbeam concurred with Ms. Wilson's recommendation, and Mr. Puckett provided final approval. Based on the foregoing, the undersigned finds that the plaintiff's conduct during the defendant's investigation of Ms. Gaines' employment termination constitutes a legitimate intervening event that severed any causal connection.
There is also evidence in the record supporting the defendant's assertion that it terminated the plaintiff's employment based on dishonesty. As set out above, Mr. Harp and Ms. Longerbeam exchanged internal instant messages during this time frame, stating their concerns about the plaintiff being dishonest. Moreover, the recording from the plaintiff's interview with Mr. Harp and Ms. Wilson reflects that Mr. Harp informed the plaintiff that "I don't think there's any question about you didn't walk her out. . . . The question is around what things were said and whether you're being honest with us" (doc. 66-23 at 7). There is also evidence that the defendant had recently terminated the employment of numerous individuals at the Newberry plant based on dishonesty or falsification. Based on the foregoing, the undersigned finds that no reasonable juror could conclude that the plaintiff's complaints about food safety were a contributing factor in his employment termination. See DeJarnette v. Corning Inc., 133 F.3d 293, 299 (4th Cir. 1998) ("[W]hen an employer articulates a reason for discharging the plaintiff not forbidden by law, it is not our province to decide whether the reason was wise, fair, or even correct . . . ."); e.g., Barrick v. Pngi Charles Town Gaming, LLC, 799 Fed.Appx. 188, 189-90 (4th Cir. 2020) ("The Casino terminated Barrick's employment after discovering he had engaged in a violation of its personal relationship policy, which we find to be a 'legitimate intervening event' that severed any causal connection between the reported activity and Barrick's termination.") (SOX); Burton v. Food Giant Supermarkets, Inc., C/A No. 1:19-cv-2445-JDB-jay, 2021 WL 3574885, at *9-10 (W.D. Tenn. Aug. 12, 2021) (finding that the plaintiff failed to show that his protected activity was a contributing factor in his employment termination, despite there being temporal proximity between his complaints about food safety and his employment termination, due the plaintiff's threatening behavior serving as an intervening event) (FSMA).
For the same reasons, the undersigned would find, in the alternative, that the defendant has shown by clear and convincing evidence that it would have terminated the plaintiff's employment in the absence of his complaints.
The plaintiff argues that the defendant did not meet the basic requirements for a credible investigation, which reflects that his protected activity was a contributing factor in his employment termination (doc. 66 at 12-15). Specifically, the plaintiff notes that the HR investigation report was not issued until a month after he was suspended (id. at 13). However, Ms. Wilson testified in her deposition that she finished the report "a couple of days after . . . the Yolanda Gaines incident" (doc. 68-5, Wilson dep. 125:23-126:19). As noted by the defendant, it appears that the date that the plaintiff is referring to is simply when Ms. Longerbeam emailed a copy of that report to her supervisor, Greg Isbell ("Mr. Isbell") (see doc. 50-2, Harp dep. ex. 6). Ms. Longerbeam explained in her deposition that Mr. Isbell had been contacted on an issue related to the plaintiff's employment termination, so he reached out to her (doc. 68-4, Longerbeam dep. 73:10-21). Accordingly, Ms. Longerbeam simply emailed Mr. Isbell the report on that date to provide him with "more of the documentation and details surrounding [the plaintiff's] termination" (id.).
The plaintiff also argues that it was not reasonable for Ms. Wilson or Mr. Harp to conclude that he was dishonest when they were privy to the biases of the individuals involved (doc. 66 at 13). The plaintiff contends that it was well-known that Ms. Perry and Ms. Sheppard were friends with Mr. Clark, and Mr. Glanton corroborated this in his declaration (id.; doc. 66-24, Glanton decl. ¶ 13). However, this argument rests on hearsay, as well as speculation that Ms. Wilson and Mr. Harp knew that Ms. Perry, Ms. Sheppard, and Mr. Clark were friends and should have concluded that it influenced the investigation such that they could not reasonably conclude that the plaintiff was dishonest. The undersigned finds that this argument is insufficient to show a genuine issue of material fact regarding the plaintiff's complaints being a contributing factor in his employment termination. See Fed.R.Civ.P. 56(c)(4); Greensboro, 64 F.3d at 967 (hearsay); Sumter, 2016 WL 3397588, at *3 (same); see also Matherly v. Andrews, 859 F.3d 264, 280 (4th Cir. 2017) ("Conclusory or speculative allegations do not suffice to oppose a properly supported motion for summary judgment, nor does a mere scintilla of evidence.") (citation and internal quotation marks omitted); Thompson v. CDL Partners LLC, 378 Fed.Appx. 288, 292 (4th Cir. 2010) (concluding that the plaintiff's speculation was insufficient to show a genuine issue of material fact).
Moreover, there is evidence that the defendant's investigation was reasonably thorough. As set out above, when Ms. Perry learned that Ms. Gaines had not been walked out of the building on March 12, 2020, she promptly interviewed Mr. Clark and the plaintiff that day. Ms. Perry documented the events that transpired with Ms. Gaines, as well as the content of her conversations with Mr. Clark and the plaintiff. Ms. Perry then provided that information to Ms. Wilson, Mr. Harp, and Ms. Longerbeam. Moreover, Ms. Wilson interviewed Mr. Clark, the plaintiff, and Ms. Sheppard that day. The investigation continued, and Ms. Wilson and Mr. Harp interviewed the plaintiff again on March 24, 2020. At that point, Ms. Wilson provided her recommendation that the plaintiff's employment be terminated due to dishonesty. Based on the foregoing, the undersigned finds that the plaintiff's argument regarding the sufficiency of the investigation reflecting that his complaints were a contributing factor in his employment termination is without merit. See, e.g., Burton, 2021 WL 3574885, at *8 (finding, in the FSMA context, that an employer "need not prove that [it] interviewed every person, but only that [it] made its decision to terminate [the individual's employment] based on an honestly held belief in a nondiscriminatory reason supported by particularized facts after a reasonably thorough investigation.") (citations and internal quotation marks omitted).
The plaintiff also argues that the defendant's reasons for terminating his employment have shifted over time (doc. 66 at 16). Specifically, the plaintiff highlights that Ms. Longerbeam indicated that the plaintiff was dishonest about "suspending" Ms. Gaines, while Ms. Wilson indicated that he was dishonest about "walking [Ms.] Gaines out" (id. at 13; doc. 50-2, Harp dep. ex. 6). However, the undersigned declines to find that this reflects the defendant shifting its reasons for the plaintiff's employment termination. As explained herein, Ms. Gaines was eligible for a MAR, and her employment termination was not officially processed until after the MAR process was complete. Accordingly, as stated by the defendant, "suspending" and "walking Ms. Gaines out" in this context appear to be interchangeable, and their varying use is immaterial here.
The plaintiff also submits that the defendant's reasons have changed over time because the investigative summary report stated that the plaintiff was terminated for being "inconsistent," rather than for "dishonesty" (doc. 66 at 13-14). Again, the undersigned finds that these words are interchangeable and do not reflect an inconsistency.
The plaintiff further highlights that Ms. Longerbeam wrote in an email that the plaintiff "could not give a consistent account of what he did with this employee and failed to take any accountability for the situation nor his lack of consistent story" (doc. 50-2, Harp dep. ex. 6). Moreover, the defendant stated in its position statement to OSHA as follows:
[The plaintiff's] failure to effectively manage staff resulted in one of them, Yolanda Gaines, working well past the date on which she was supposed to have been terminated.
[The plaintiff's] failure to notice that Gaines had been at work for over a week after she was supposed to have been terminated reflected ongoing deficiencies managing staff, but Wilson and Harp agreed that mistake alone did not warrant termination.(Doc. 66-8 at 7-8). The plaintiff contends that these statements, combined with the defendant's motion claiming that the plaintiff was solely terminated for dishonesty and lack of integrity in the investigation, reflects shifting reasons (doc. 66 at 16). However, the undersigned finds that these statements are consistent with the defendant's articulated reason of dishonesty. Ms. Longerbeam's language, in effect, communicated her belief that the plaintiff had been dishonest by stating that he was not consistent and not taking accountability for his inconsistency. Further, the defendant recognized that the plaintiff's failure to notice that Ms. Gaines had been at work, taken alone, did not warrant his employment termination. Accordingly, this argument is also without merit.
In addition, the plaintiff asserts that the defendant falsely told OSHA in its position statement that the plaintiff never raised a safety concern until the OSHA complaint (doc. 66 at 18). Specifically, the plaintiff highlights that the defendant asserted that "even after he had been terminated, [the plaintiff] never mentioned food safety concerns during his post-termination correspondence with the Plant" and that “in the numerous discussions [the plaintiff] had with Harp, Wilson, and Longerbeam regarding this investigation and his termination, [the plaintiff] never mentioned food safety concerns” (id.; doc. 66-8 at 8, 12). However, the defendant recognized in its reply that the position statement was written in reliance on Mr. Harp, Ms. Longerbeam, and Ms. Wilson's recollections, and discovery simply later turned up a post-termination email from the plaintiff to Mr. Isbell regarding food safety complaints (id. at 15). Moreover, contrary to the plaintiff's assertions, the record reflects that the defendant has been consistent over time in its reason for terminating the plaintiff's employment. Internal emails before and after the plaintiff's employment termination, internal instant messages, Mr. Harp's comments that were recorded during the meeting with the plaintiff, the investigative summary report, the defendant's position statement, and the defendant's instant motion all reflect the reason of dishonesty. In light of the foregoing, the undersigned declines to find that the defendant's articulated reason has shifted over time.
The plaintiff also argues that he was treated worse than any comparator (doc. 66 at 16-18). The plaintiff asserts that Mr. Clark was Ms. Gaines' direct supervisor but that Mr. Clark did not recall ever being counseled or disciplined in any way for this incident (id. at 17). The plaintiff also asserts that the defendant has not produced any documentary evidence that the security guard who allowed Ms. Gaines into the building after her badge would not work was disciplined in any way (id.). Moreover, the plaintiff submits that paperwork regarding Ms. Gaines sat in HR for almost two weeks with no entries as to badge collection or deactivation and that no one in HR was disciplined for this (id. at 17-18). However, the plaintiff does not allege that Mr. Clark, the security guard, or any HR employees engaged in the same conduct that the defendant concluded the plaintiff engaged in - dishonesty. Accordingly, because the plaintiff has failed to show any individual engaging in the same conduct but receiving different treatment for it, the undersigned finds that he has failed to show a valid comparator. See Haynes v. Waste Connections, Inc., 922 F.3d 219, 223-34 (4th Cir. 2019) (noting, in the Title VII context, that "to establish a valid comparator, the plaintiff must produce evidence that the plaintiff and comparator dealt with the same supervisor, [were] subject to the same standards and ... engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer's treatment of them for it.") (citations and internal quotation marks omitted); Greenup v. CSX Transp., Inc., 2019 WL 3464632, at *2 (D. Md. July 31, 2019) (applying Title VII comparator law in the FRSA context). Therefore, the undersigned recommends that the defendant's motion for summary judgment be granted.
CONCLUSION AND RECOMMENDATION
Wherefore, based on the foregoing, the undersigned recommends that the district court grant the defendant's motion for summary judgment (doc. 50).
IT IS SO RECOMMENDED.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
250 East North Street, Suite 2300
Greenville, South Carolina 29601
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).