Fourth Circuit Finds Close Timing Between Complaints, Termination Revives Suit

Close temporal proximity between an employee’s report of food quality and safety concerns and his termination helped the Fourth U.S. Circuit Court of Appeals reverse summary judgment in favor of the employer.

A production manager at a Kraft Heinz plant in South Carolina, Wilbert Finley, was responsible for bacon and other packaged deli meats. Starting in the fall of 2019 and continuing through the spring of 2020, Finley’s work became contentious as he began pausing production to address his safety concerns.

Specifically, Finley was worried about “leakers”—improperly sealed bacon packages that would allow pathogens to enter the meat—and about bone fragments big enough to be dangerous.

He regularly raised these concerns to his supervisors and to human resources (HR), but according to Finley, his supervisors told him to continue processing the product and not to discard it.

Finley’s complaints continued into March 2020, with his last concerns shared on March 12. He was suspended pending review 12 days later, and two days after that, on March 26, 2020, he was terminated.

Kraft Heinz claimed that Finley was terminated because of an intervening event: an HR investigation involving the nonfiring of a different employee during which Finley made inconsistent statements.

Two weeks earlier, a subordinate of Finley’s was instructed by HR to terminate four of the workers he supervised. Three of them were let go without incident, but the fourth was absent the day she was supposed to be fired. The worker returned and was subsequently terminated.

According to Kraft Heinz, Finley said he walked the worker out of the building, deactivated her badge and turned in her paperwork. Finley denied ever saying (or doing) any of those things.

Finley sued, alleging his termination was unlawful retaliation in violation of the Food Safety Modernization Act (FSMA). Adopting the report and recommendation of a magistrate judge, the district court granted summary judgment to Kraft Heinz.

On appeal to the Fourth Circuit, the federal appellate panel reversed.

The FSMA requires a plaintiff to show that he engaged in protected activity, that he experienced an adverse employment action and that his protected activity was a contributing factor in the adverse employment action.

Focusing on the third factor, the court said it reviewed retaliation claims under a “contributing factor” standard commonly used in whistleblower statutes. Finley bore the initial burden to demonstrate that he engaged in whistleblower activity protected by the FSMA and that this protected activity was “a contributing factor” in the unfavorable personnel action alleged.

The burden then shifted to Kraft Heinz to demonstrate by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of that behavior.

Finley made the required showing, the court determined, as the contributing factor standard was broad and forgiving, and he only needed to show that his complaints affected his termination in “at least some way.”

Kraft Heinz relied upon the HR investigation, but the court was not convinced.

“The March 24 investigation, like any intervening event, must be considered in the causation analysis,” the court wrote. “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. The events of March 24 should be considered not in isolation, but in conjunction with Finley’s evidence of contributing-factor causation.”

An intervening event may undermine the strength of an inference that otherwise would arise from temporal proximity, the court explained, 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?

“Here, the district court and magistrate judge failed to properly conduct that inquiry,” the court said, undertaking the inquiry on its own and concluding that the record gave rise to genuine issues of material fact for a jury.

A reasonable jury could give weight to the “very close” temporal proximity between Finley’s complaints, the investigation into Finley’s conduct and Finley’s firing, the court said.

Finley also produced evidence that he was disciplined more severely than others involved in the nonfiring, allowing a reasonable jury to infer that Kraft Heinz singled him out because of his prior safety complaints. And a jury could have questions about what Kraft Heinz really thought of Finley’s behavior on March 24 and the consistency of its rationales for targeting and then firing him, the court added.

The district court erred in awarding summary judgment to Kraft Heinz, the court held, reversing and remanding.

To read the opinion in Finley v. Kraft Heinz, Inc., click .

Why it matters: While the Fourth Circuit was clear that it was not weighing the evidence or making credibility determinations, it found that a reasonable jury could infer from the record considered as a whole that something more than Finley’s “dishonesty” during the HR investigation contributed to his firing and that his increasingly urgent food safety complaints—culminating immediately before his termination—affected his termination in at least some way, requiring a reversal of summary judgment in favor of the employer.