Case 3:19-cv-00044-JEG-HCA Document 33 Filed 06/03/20 Page 1 of 15
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF IOWA
`DAVENPORT DIVISION
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`EDGAR T. CAMPBELL,
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`Plaintiff,
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`vs.
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`KRAFT HEINZ FOOD COMPANY,
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`No. 3:19-cv-00044–JEG-HCA
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`O R D E R
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`Defendant.
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`This matter comes before the Court on Motion for Summary Judgment, ECF No. 21,
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`brought by Defendant Kraft Heinz Food Company. Plaintiff Edgar Campbell resists. Neither
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`party requested oral argument, and the Court finds none is necessary in resolving this motion.
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`The matter is fully submitted and ready for disposition.
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`I. BACKGROUND
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`In March 2017, Campbell began working in the sanitation department of Kraft Heinz’s
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`plant in Scott County, Iowa. Campbell’s responsibilities included using chemicals to clean
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`production equipment. As a new hire, Campbell was subject to a sixty-day probationary period,
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`as provided in the plant’s collective bargaining agreement. Kraft Heinz’s practice at the plant
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`was to terminate probationary employees without issuing written warnings if they engaged in
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`conduct that would result in any formal discipline for a non-probationary employee. Pursuant to
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`this practice, Lisa Culberson—the plant’s Operational Risk Manager—reports that the plant
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`terminated four probationary plant employees in 2016 for violating Kraft Heinz’s policies;
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`relevant to this case, three of the four had not filed workers’ compensation claims. See Def.’s
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`App. 38–Culberson Decl. ¶ 3, ECF No. 21-3. Culberson further states, “Between January 2016
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`and June 2019, there were 34 Plant employees who suffered workplace injuries and who are
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`either still employed, voluntarily quit, or retired.” Id. at ¶ 4.
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`During his probationary period, Campbell was purportedly involved in two safety inci-
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`dents. The first incident occurred on April 19, 2017, when Campbell became ill after exposure
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`1
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`Case 3:19-cv-00044-JEG-HCA Document 33 Filed 06/03/20 Page 2 of 15
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`to noxious fumes. As a result, the plant conducted a “near-miss” investigation, documented in a
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`report. The report starts with a handwritten statement:
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`Felt burning to the eyes due to strong chemical. Went to eye wash station, rinsed
`eyes out due to the burning sensation. Sat in office and started throwing up,
`shortness of breathe [sic]. Brought over to the office[.]
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`Def.’s App. 47–Culberson Decl. Ex. B, ECF No. 21-3.
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`The report contains a “Loss Causation Model” checklist. Id. The checklist categorizes
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`causes into “Basic Causes” and “Immediate Causes,” both of which contain two sub-categories
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`with several checkboxes. Id. Under the Basic Causes category–Personal Factors sub-category,
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`the marked checkbox was “New / In Training”; under the Basic Causes category–Job Factors
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`sub-category, the marked checkbox was “Inadequate Work Standards”; and under the Immediate
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`Causes category–Substandard Conditions, the marked checkbox was “Inadequate Ventilation.”
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`Id.
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`The report also contains a form with the caption “Root Cause – 5 Why Analysis.” Id. at
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`48. In response to a question about which body part was injured, a handwritten answer states,
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`“No body part injured, smell of the chemical.” Id. The form then asks, “Why? What was the
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`immediate action that hurt this body part?” Id. The first portion of the handwritten answer is
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`crossed out and illegible, and it then says, “chemical mixture.” Id. The form then asks, “Why
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`did that action occur?” several times. Id. The handwritten answers are: “Getting ready to
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`clean,” “Nightly sanitation duties,” and “Production just got done.” Id.
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`The next section of the report is labeled “Recommendations for Preventative Action.” Id.
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`at 49. The first recommendation—assigned to Jessica Triphan, a manager at the plant—is,
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`“Make sure chemicals are dispensed into proper containers,” and it is marked as completed on
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`April 23, 2017. Id. The next recommendation—assigned to “Team members”—is “New
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`hires/transfers need to watch and understand the process of dispensing chemicals,” which is
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`marked as “ongoing.” Id. Next, in a section for indicating the severity of the incident and
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`probability of recurrence, the lowest levels are selected for both severity and probability of
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`2
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`recurrence. For severity, the incident is categorized as “Minor” (as opposed to “Major” or
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`“Severe”), which is defined as, “Minor injury or illness without lost time. Non-disruptive
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`property damage; or quality production or other loss less than $5000.” Id. For probability of
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`recurrence, the incident is categorized as “Seldom” (as opposed to “Occasional” or “Frequent”),
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`which is defined as occurring approximately once per year. Id. The report has the signatures
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`of several individuals, including Campbell. Attached to the report are five pages of handwritten
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`notes and statements. The last page of the report is a document with Campbell’s type-written
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`name at the top and several photos of chemical containers and labels. According to Culberson,
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`the photos were of Campbell’s work cart and were “taken during the investigation to document
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`the person who mixed acid and chlorine, and [they] indicate[] that Plaintiff mixed acid and
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`chlorine.” Def.’s Supp. App.–2nd Culberson Decl. ¶ 12, ECF No. 30-2.
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`The second safety incident occurred on April 25, 2017, when Campbell suffered chemical
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`burns on both wrists. Kraft Heinz’s policy on personal protective equipment (PPE), as
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`explained during training sessions for new hires such as Campbell, required sanitation depart-
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`ment personnel not to wear cotton gloves against the skin, but to instead wear a rubber glove in
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`between. According to Kraft Heinz, Campbell violated this policy by wearing cotton gloves
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`against the skin, which resulted in his chemical burns. Campbell, however, denies that he
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`violated the policy and claims that his injury occurred because the gloves he wore had pinholes
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`in them that allowed exposure to chemicals.
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`Campbell’s safety performance is marked as “Less Than Acceptable” in an April 26, 2017
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`performance evaluation. Def.’s App. 57–Culberson Decl. Ex. C, ECF No. 21-3. That check-
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`box is selected if the employee “[h]as exhibited on one or more than one occasion a failure to
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`adhere to safe work instructions and procedures or not using appropriate PPE’s, etc.” Id.
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`Campbell’s overall performance is also marked as “Less Than Acceptable.” Id. at 58. A
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`handwritten comment on the evaluation form says, “Employee was injured not wearing the
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`correct PPE during the sanitation cleaning process. Employee is expected to follow all safety
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`procedures and PPE requirements at all times.” Id. Campbell’s signature appears on the
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`bottom of the document, along with the signatures of a manager and supervisor. Id. Campbell
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`admits he signed a performance evaluation on or around April 26, 2017; however, he claims he
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`never knowingly signed an evaluation stating that his safety or overall performance was less than
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`acceptable. Campbell surmises that the document provided by Kraft Heinz “may have been
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`altered.”1 Pl.’s App. 8, ECF No. 26-4.
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`After reporting the injury to the plant’s medical staff, Campbell was placed on light-duty
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`work status. Campbell was evaluated by medical staff at the plant on several occasions over the
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`next few weeks, and he reported increasing pain in his right hand and wrist. According to
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`Campbell, the medical staff told him not to seek treatment from a physician; Kraft Heinz denies
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`they did so and reports that, in any event, the medical staff at the plant are employed by a third-
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`party contractor.
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`On May 18, 2017, John Fleming, the plant’s sanitation manager, wrote an email to Rodney
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`Warhank, the plant’s associate human resources manager, stating, “I will be releasing Edgar in
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`the morning due to safety violations. Edgar has had a near miss and a potential recordable
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`within his probation period and is not giving me a good feeling about his employment here.
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`Any watch outs here?” Def.’s App. 65–Warhank Decl. Ex. A, ECF No. 21-3. Warhank
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`reports, and Campbell concedes, that Fleming and Warhank then discussed Campbell’s pur-
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`ported safety violations without mentioning the topic of workers’ compensation. See Def.’s
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`App. 62–Warhank Decl. ¶¶ 9-11, ECF No. 21-3; Pl.’s Resp.–Def.’s State. Facts Nos. 32-34, ECF
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`No. 26-2. The next day, May 19, Fleming terminated Campbell and notified several Kraft
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`Heinz employees about the termination. In response to a question from human resources
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`employee Amy Matlick about why Campbell was terminated, Fleming replied, “Safety.” Def.’s
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`1 Culberson states in her affidavit that the plant’s “longstanding consistent practice is that
`probationary employees sign ‘New Hire Performance Evaluation’ forms after the form has been
`completed by the employee’s manager.” Def.’s Supp. App.–2nd Culberson Decl. ¶ 12, ECF
`No. 30-2.
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`App. 67–Warhank Decl. Ex. B, ECF No. 21-3. Matlick replied that she would “process termi-
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`nation for safety violation.” Id. Several days later, on May 22, Culberson forwarded an email
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`in which a nurse manager reported that Campbell missed an appointment; Culberson commented
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`that Campbell “was fired due to many safety violations in his probation and now he has missed
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`appointment for medical care for his burn.” Def.’s App. 60–Culberson Decl. Ex. D, ECF No.
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`21-3. Campbell later testified at his workers’ compensation deposition that he was not given a
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`reason for why he was fired.
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`On May 10, 2019, Campbell filed a lawsuit against Kraft Heinz, several other Kraft Heinz
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`companies, and several Kraft Heinz employees in the Iowa District Court for Scott County.
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`Campbell’s single-count petition claimed wrongful discharge under Iowa state law, alleging that
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`Kraft terminated him for pursuing workers’ compensation benefits. Campbell later dismissed
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`the claim as to all the defendants except Kraft Heinz and Culberson. Kraft Heinz removed to
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`this Court on June 12, 2019, on the basis of diversity jurisdiction, asserting that Campbell’s
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`joinder of Culberson, an Iowa resident, was fraudulent and could not, therefore, defeat diversity
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`between Campbell, an Iowa resident, and Kraft Heinz, a Pennsylvania corporation.2 After Kraft
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`2 Under 28 U.S.C. § 1445(c), “[a] civil action in any State court arising under the work-
`men’s compensation laws of such State may not be removed to any district court of the United
`States.” Because like § 1445(a), § 1445(c) “does not involve subject matter jurisdiction,” In re
`Norfolk S. Ry. Co., 592 F.3d 907, 912 (8th Cir. 2010), and Campbell has not objected to removal
`on this basis, Campbell has waived any § 1445(c) argument, see Bloom v. Metro Heart Grp. of
`St. Louis, Inc., 440 F.3d 1025, 1031 n.2 (8th Cir. 2006) (holding plaintiff waived objection to
`removal based on § 1445(c) “when she did not timely move for remand in the district court, on
`this ground” (citing Phillips v. Ford Motor Co., 83 F.3d 235, 236 n. 3, 237 n. 5 (8th Cir. 1996))).
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`In any event, Campbell’s claim for wrongful discharge is a judicially-recognized tort for
`violation of Iowa public policy, see Berry v. Liberty Holdings, Inc., 803 N.W.2d 106, 109 (Iowa
`2011), and his claim does not, therefore, arise under Iowa workers’ compensation laws, see, e.g.,
`Hanna v. Fleetguard, Inc., 900 F. Supp. 1110, 1118-23 (N.D. Iowa 1995) (analyzing Humphrey
`v. Sequentia, Inc., 58 F.3d 1238 (8th Cir. 1995), and Spearman v. Exxon Coal USA, Inc., 16
`F.3d 722 (7th Cir. 1994), and finding that, “[b]ecause the Iowa legislature omitted this cause of
`action from its statutory scheme, the court concludes retaliatory discharge is not a civil action
`arising under Iowa’s worker’s compensation laws and is properly removable to federal court
`pursuant to 28 U.S.C. § 1441(a)”). Compare Humphrey, 58 F.3d at 1246 (distinguishing
`Spearman in holding Missouri retaliatory discharge claim arose under Missouri’s workers’ com-
`pensation laws for purposes of § 1445(c) when cause of action was created by Missouri workers’
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`Heinz filed a motion for partial judgment on the pleadings, asking the Court to dismiss the claim
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`against Culberson, Campbell moved to dismiss the claim against Culberson, which the Court
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`granted and thus deemed Kraft Heinz’s motion moot. On March 2, 2020, Kraft Heinz filed this
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`motion for summary judgment.
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`II. DISCUSSION
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`A. Summary Judgment Standard
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`“The court shall grant summary judgment if the movant shows that there is no genuine
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`dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
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`R. Civ. P. 56(a). “The movant ‘bears the initial responsibility of informing the district court of
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`the basis for its motion,’ and must identify ‘those portions of [the record] . . . which it believes
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`demonstrate the absence of a genuine issue of material fact.’” Torgerson v. City of Rochester,
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`643 F.3d 1031, 1042 (8th Cir. 2011) (en banc) (alterations in original) (quoting Celotex Corp. v.
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`Catrett, 477 U.S. 317, 323 (1986)). If the movant makes such a showing, to avoid summary
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`judgment the nonmovant must “respond by submitting evidentiary materials that set out ‘specific
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`facts showing that there is a genuine issue for trial.’” Id. (quoting Celotex, 477 U.S. at 324). A
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`genuine issue for trial requires more than “some metaphysical doubt as to the material facts.”
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`Id. (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). The
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`Court is not “obligated to wade through and search the entire record for some specific facts” in
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`support of an argument on summary judgment. Johnson Tr. of Operating Eng’rs Local #49
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`Health & Welfare Fund v. Charps Welding & Fabricating, Inc., 950 F.3d 510, 523 (8th Cir.
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`2020) (holding that nonmovants on summary judgment “did not meet their burden in opposing
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`compensation statute), with Spearman, 16 F.3d at 725 (holding Illinois wrongful termination
`claim for pursuing workers’ compensation did not arise under Illinois workers’ compensation
`laws for purposes of § 1445(c) when cause of action was for common law violation of Illinois
`public policy, Illinois’ workers’ compensation laws were merely “a premise of the tort,” and the
`“claim of retaliatory discharge may be adjudicated without any inquiry into the meaning of the
`workers’ compensation laws”).
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`summary judgment” when “they did not direct the district court to evidentiary materials setting
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`out specific facts showing a genuine issue”).
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`“Summary judgment is appropriate when the evidence, viewed in a light most favorable to
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`the nonmoving party, shows no genuine issue of material fact exists and the moving party is
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`entitled to judgment as a matter of law.” Couch v. Am. Bottling Co., 955 F.3d 1106, 1108 (8th
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`Cir. 2020) (quoting Phillips v. Mathews, 547 F.3d 905, 909 (8th Cir. 2008)); see also Scott v.
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`Harris, 550 U.S. 372, 380 (2007) (“At the summary judgment stage, facts must be viewed in the
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`light most favorable to the nonmoving party only if there is a ‘genuine’ dispute as to those facts.”
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`(quoting Fed. R. Civ. P. 56(c))). “[T]he mere existence of some alleged factual dispute between
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`the parties will not defeat an otherwise properly supported motion for summary judgment; the
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`requirement is that there be no genuine issue of material fact.” Scott, 550 U.S. at 380 (alteration
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`in original) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)). “A fact is
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`‘material’ if it may affect the outcome of the lawsuit.” TCF Nat’l Bank v. Mkt. Intelligence,
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`Inc., 812 F.3d 701, 707 (8th Cir. 2016) (quoting Anderson, 477 U.S. at 248). “When opposing
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`parties tell two different stories, one of which is blatantly contradicted by the record, so that no
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`reasonable jury could believe it, a court should not adopt that version of the facts for purposes of
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`ruling on a motion for summary judgment.” Scott, 550 U.S. at 380.
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`“Mere speculation is insufficient to defeat summary judgment.” Lacey v. Norac, Inc., 932
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`F.3d 657, 660 (8th Cir. 2019) (citing Gannon Int’l, Ltd. v. Blocker, 684 F.3d 785, 794 (8th Cir.
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`2012)); see also Barber v. C1 Truck Driver Training, LLC, 656 F.3d 782, 801 (8th Cir. 2011)
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`(reasoning that to survive summary judgment, non-moving party must offer “more than mere
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`speculation, conjecture, or fantasy” (quoting Putman v. Unity Health Sys., 348 F.3d 732, 734
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`(8th Cir. 2003))). Similarly, “[a] plaintiff may not merely point to unsupported self-serving
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`allegations, but must substantiate allegations with sufficient probative evidence that would
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`permit a finding in the plaintiff's favor.” Awnings v. Fullerton, 912 F.3d 1089, 1098 (8th Cir.
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`2019) (alteration in original) (quoting Davidson & Assocs. v. Jung, 422 F.3d 630, 638 (8th Cir.
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`2005)). “[I]t is black letter summary judgment law that a conclusory, self-serving affidavit will
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`not defeat an otherwise meritorious summary judgment motion.” Keiran v. Home Capital, Inc.,
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`858 F.3d 1127, 1132 (8th Cir. 2017) (citing Chavero–Linares v. Smith, 782 F.3d 1038, 1041 (8th
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`Cir. 2015)).
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`B. Campbell’s Termination
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`Campbell’s sole claim is for wrongful discharge under Iowa law. Although Iowa is
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`generally an at-will employment state, Iowa law recognizes “a narrow public-policy exception to
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`the general rule of at-will employment.” Berry v. Liberty Holdings, Inc., 803 N.W.2d 106, 109
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`(Iowa 2011) (citing Springer v. Weeks & Leo Co., 429 N.W.2d 558, 560 (Iowa 1988)). “The
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`public-policy exception to the at-will employment doctrine limits an employer’s discretion to
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`discharge an at-will employee when the discharge would undermine a clearly defined and well-
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`recognized public policy of the state.” Id. (citing Jasper v. H. Nizam, Inc., 764 N.W.2d 751,
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`761, 763 (Iowa 2009)). “Accordingly, an at-will employee has a cause of action for wrongful
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`discharge when the reasons for the discharge violate a clearly defined and well-recognized public
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`policy.” Id. To make out a prima facie case of retaliatory discharge, Campbell “must establish
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`(1) engagement in a protected activity, (2) adverse employment action, and (3) a causal connec-
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`tion between the two.” Rivera v. Woodward Res. Ctr., 865 N.W.2d 887, 894 (Iowa 2015)
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`(quoting Teachout v. Forest City Cmty. Sch. Dist., 584 N.W.2d 296, 299 (Iowa 1998)). “If
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`[Campbell] meets [his] prima facie burden, [Kraft Heinz] must articulate a legitimate, non-
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`retaliatory reason for its action. If [Kraft Heinz] meets this burden, [Campbell] must then
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`identify evidence sufficient to create a genuine issue of material fact whether [Kraft Heinz]’s
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`proffered explanation is merely a pretext for unlawful retaliation.” Wierman v. Casey’s Gen.
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`Stores, 638 F.3d 984, 999 (8th Cir. 2011).
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`There is no dispute that Campbell suffered an adverse employment action. For purposes
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`of summary judgment, Kraft Heinz appears to assume without conceding that Campbell engaged
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`in a protected activity, that is, he sought (or planned to seek) workers’ compensation benefits
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`after his April 25, 2017 injury. The existing record does not appear to contain any evidence
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`establishing when Campbell sought workers’ compensation benefits, only when Campbell
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`suffered and reported the injury that arguably entitled him to benefits. Assuming without
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`deciding that Campbell sought workers’ compensation or advised Kraft Heinz he would seek
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`compensation prior to his termination, the only element at issue is whether “his alleged protected
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`activity caused the termination.” Napreljac v. John Q. Hammons Hotels, Inc., 505 F.3d 800,
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`803 (8th Cir. 2007).
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`Iowa law is clear that “discharging an employee merely for pursuing the statutory right to
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`compensation for work-related injuries offends against a clearly articulated public policy of this
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`state.” Springer, 429 N.W.2d at 559; see also Graves v. O’Hara, 576 N.W.2d 625, 628 (Iowa
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`Ct. App. 1998) (“In Iowa, discharge based on retaliation for seeking workers’ compensation
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`benefits is against public policy.” (citing Springer, 429 N.W.2d at 560)). However, “[t]he
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`causation standard in a common-law retaliatory discharge case is high. The employee’s engage-
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`ment in protected conduct must be the determinative factor in the employer’s decision to take
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`adverse action against the employee.” Napreljac, 505 F.3d at 803 (quoting Teachout, 584
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`N.W.2d at 301). “A determining factor is one that tips the scales decisively in either direction.”
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`Graves, 576 N.W.2d at 628 (internal citation omitted) (citing Smith v. Smithway Motor Xpress,
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`Inc., 464 N.W.2d 682, 686 (Iowa 1990)). “Stated otherwise, a determining factor is the ‘final
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`straw.’” Glandon v. Keokuk Cty. Health Ctr., 408 F. Supp. 2d 759, 770 (S.D. Iowa 2005)
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`(quoting Davis v. Horton, 661 N.W.2d 533, 536 (Iowa 2003)).
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`1. Timing
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`Campbell’s primary argument is that “the timing of the workers’ compensation claim to the
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`termination is powerful evidence of Kraft Heinz’s retaliatory intent.” Pl.’s Resist. 9, ECF No.
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`26-3. Campbell argues he suffered and reported the injury on April 25, 2017, and was ter-
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`minated twenty-four days later, on May 19. A “short turnaround” between a protected activity
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`and an employee’s termination may “create an inference of retaliation,” Couch, 955 F.3d at 1109
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`(quoting Wright v. St. Vincent Health Sys., 730 F.3d 732, 738 (8th Cir. 2013)), but “generally
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`speaking, timing alone is not enough to establish pretext,” id. (citing EEOC v. Kohler Co., 335
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`F.3d 766, 773 n.7 (8th Cir. 2003)). Although “the timing between the protected activity and the
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`discharge is insufficient, by itself, to support the causation element of the tort,” it may be enough
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`to demonstrate causation if supported by additional, circumstantial evidence. Jasper, 764
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`N.W.2d at 768 (citing Hulme v. Barrett, 480 N.W.2d 40, 43 (Iowa 1992)); see also Webner v.
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`Titan Distribution, Inc., 267 F.3d 828, 835-36 (8th Cir. 2001) (in analyzing challenge to jury
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`verdict, stating “timing of an adverse employment action standing alone is insufficient to support
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`a retaliatory discharge claim” but finding that the verdict for the plaintiff was supported by
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`additional evidence besides timing).
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`In Jasper, for instance, the Iowa Supreme Court affirmed a jury verdict finding an
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`employee was wrongfully discharged for refusing to understaff a day-care facility when there
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`was evidence that the plaintiff was terminated shortly after refusing to staff the facility below
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`minimum state requirements as requested by the defendant and that after terminating the
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`plaintiff, the defendant then reduced staffing below state requirements. Jasper, 764 N.W.2d at
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`768. By contrast, in Couch, the Eighth Circuit affirmed the grant of summary judgment in favor
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`of the defendant on a racial discrimination claim even though the record demonstrated the
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`plaintiff received a negative performance review three days after filing an EEOC complaint, was
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`suspended fifteen days later, and was fired fifteen days after that. Couch, 955 F.3d at 1109.
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`The Eighth Circuit reasoned that the plaintiff’s timing argument was insufficient to defeat
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`summary judgment because the claim was not supported by additional evidence and “any
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`inference that might be drawn from timing is especially weak ” because when the plaintiff filed
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`his EEOC complaint, he “knew that his interim review” would occur shortly after he filed the
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`complaint. Id.
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`Like the plaintiff’s timing argument in Couch, Campbell’s timing argument is undermined
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`by the fact that his termination occurred around the time his sixty-day probationary employment
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`period was coming to an end.3 In addition, Campbell’s timing argument alone without addi-
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`tional supportive evidence is insufficient to survive summary judgment. See Couch, 955 F.3d at
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`1109 (“[G]enerally speaking, timing alone is not enough to establish pretext.”); Jasper, 764
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`N.W.2d at 768 (“[T]he timing between the protected activity and the discharge is insufficient, by
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`itself, to support the causation element of the tort.”).
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`2. Safety Incidents
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`Campbell argues that his timing inference is confirmed by Kraft Heinz’s allegedly pre-
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`textual justifications for terminating him. “In appropriate circumstances, the trier of fact can
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`reasonably infer from the falsity of the explanation that the employer is dissembling to cover up
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`a discriminatory purpose.” Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 134 (2000)
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`(citing Wright v. West, 505 U.S. 277, 296 (1992)). If Kraft Heinz’s proffered justifications had
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`“no basis in fact,” it would support Campbell’s inference that he was fired due to his workers’
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`compensation injury and claim. Logan v. Liberty Healthcare Corp., 416 F.3d 877, 881 (8th Cir.
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`2005) (finding that the plaintiff could not show justifications for firing were pretextual when
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`there was evidence that the employer was considering termination before the plaintiff engaged in
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`the protected activity (quoting Smith v. Allen Health Sys., Inc., 302 F.3d 827, 834 (8th Cir.
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`2002))). Kraft Heinz argues that Campbell was terminated because of two documented safety
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`violations, which are evidenced by reports documenting both instances and contemporaneous
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`email exchanges between Kraft Heinz personnel discussing Plaintiff’s termination.
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`Although the parties agree that Campbell became ill after being exposed to noxious fumes
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`on April 19, 2017, the parties offer competing interpretations of the incident. According to
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`Kraft Heinz, the incident occurred because Campbell improperly mixed acid and chlorine,
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`3 The Court assumes without deciding that Campbell engaged in the protected activity at
`the time he reported his injury on April 25, although, as previously discussed, the existing record
`is unclear as to when Campbell first pursued workers’ compensation benefits or alerted Kraft
`Heinz of his intent to do so.
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`despite his prior training not to do so. Campbell denies that he mixed acid and chlorine,4 denies
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`that he received training not to mix acid and chlorine, highlights the investigation report’s state-
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`ment that Triphan—the manager—was responsible for ensuring chemicals were dispensed into
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`their proper containers, and claims he was never disciplined nor warned about the incident.
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`Viewing the evidence in the light most favorable to Campbell, the near-miss investigation
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`report does not clearly assign blame for the safety incident, to Campbell or anyone else. See
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`Def.’s App. 47–Culberson Decl. Ex. B, ECF No. 21-3. Campbell is correct that the report
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`charges Triphan, not Campbell, with ensuring chemicals are dispensed into the proper con-
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`tainers. Id. at 49. Further, the report describes the causes of the incident as “New / In
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`Training,” “Inadequate Work Standards,” and “Inadequate Ventilation.” Id. at 47. Considered
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`cumulatively and in the context of the remainder of the report, these identified causes do not
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`conclusively show that Campbell was at fault and in violation of Kraft Heinz safety policy.
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`Kraft Heinz cites Culberson’s affidavit stating the photos of chemicals under Campbell’s name at
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`the end of the report were of Campbell’s work cart and were “taken during the investigation to
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`document the person who mixed acid and chlorine, and indicate[] that Plaintiff mixed acid and
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`chlorine.” Def.’s Supp. App.–2nd Culberson Decl. ¶ 12, ECF No. 30-2. However, Culberson
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`provides no support for her statement, and it is unclear from her affidavit if she was personally
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`involved in the near-miss investigation. Nothing on the report itself indicates that these pictures
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`are meant to show Campbell was at fault, and viewing the evidence in the light most favorable to
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`Campbell, Culberson’s conclusory statement regarding the report is insufficient to demonstrate
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`that Campbell violated a safety policy in this incident.
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`In contrast to the report on the April 19 safety incident, Campbell’s April 26, 2017 per-
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`formance evaluation clearly faults Campbell for violating plant safety policy in the April 25
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`incident that resulted in burns to Campbell’s wrists. The evaluation describes Campbell’s safety
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`4 Campbell also claims that the fumes were caused by the mixture of bleach and acid, not
`chlorine and acid.
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`performance and overall performance as “Less Than Acceptable,” indicating he “exhibited one
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`or more than one occasion a failure to adhere to safe work instructions and procedures or not
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`using appropriate PPE’s, etc.” Def.’s App. 57–Culberson Decl. Ex. B, ECF No. 21-3. The
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`evaluation says that Campbell “was injured not wearing the correct PPE during the sanitation
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`cleaning process. Employee is expected to follow all safety procedures and PPE requirements at
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`all times.” Id. at 58. Campbell’s signature appears on the bottom of the evaluation.
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`Campbell’s only response to this performance evaluation is to argue he never knowingly
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`signed an evaluation stating this his safety or overall performance was less than acceptable, even
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`though he acknowledges signing a performance evaluation around the time of the incident.
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`Campbell asserts that the document produced by Kraft Heinz “may have been altered.” Pl.’s
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`App. 8, ECF No. 26-4; Pl.’s Resist. 4, ECF No. 26-3. Campbell’s self-serving speculation that
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`the evaluation was altered is insufficient to defeat summary judgment. See e.g., Keiran, 858
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`F.3d at 1132 (“[I]t is black letter summary judgment law that a conclusory, self-serving affidavit
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`will not defeat an otherwise meritorious summary judgment motion.”). Campbell’s claim that
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`he did not violate Kraft Heinz safety policy by improperly wearing cotton gloves adjacent to his
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`skin is belied by the performance evaluation, accompanied by Campbell’s signature, acknowl-
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`edging the violation. Campbell has failed to refute the evidence in the current record that he
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`violated Kraft Heinz safety policy.
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`Kraft Heinz also cites contemporaneous email evidence to support its position that
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`Campbell was fired due to safety violations. The day before Campbell was terminated, Fleming
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`emailed Warhank, “I will be releasing Edgar in the morning due to safety violations. Edgar has
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`had a near miss and a potential recordable within his probation period and is not giving me a
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`good feeling about his employment here. Any watch outs here?” Def.’s App. 65–Warhank
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`Decl. Ex. A, ECF No. 21-3. Campbell admits that Fleming and Warhank then discussed
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`Campbell’s safety record without discussing workers’ compensation. See Pl.’s Resp.–Def.’s
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`State. Facts Nos. 32-34, ECF No. 26-2. The day of Campbell’s termination, May 19, Fleming
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`emailed another human resources employee that Campbell was terminated due to safety. See
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`Def.’s App. 67–Warhank Decl. Ex. B, ECF No. 21-3. On May 22, Culberson stated in an email
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`that Campbell “was fired due to many safety violations in his probation.” Def.’s App. 60–
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`Culberson Decl. Ex. D, ECF No. 21-3. As with his negative performance evaluation, Campbell
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`provides no meaningful response to these repeated, documented instances in which Kr