8:22-cv-00426-TMC Date Filed 02/10/22 Entry Number 1 Page 1 of 11
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`Wilbert Finley,
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`Plaintiffs,
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`-vs-
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`Kraft Heinz, Inc.,
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`Defendant.
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`IN THE UNITED STATES DISTRICT COURT
`DISTRICT OF SOUTH CAROLINA
`______________________
`ANDERSON DIVISION
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`) C/A No.:
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`) COMPLAINT
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`I. INTRODUCTION
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`This is an action arising under the employee protection provisions of the Food Safety
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`Modernization Act (FSMA), 21 U.S.C. § 399d, and the South Carolina tort of wrongful discharge by
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`Plaintiff Wilbert Finley (hereafter “Plaintiff,” or “Finley”) against his former employer, Kraft Heinz
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`Foods Co. (hereafter “Kraft Heinz” or “Defendant” or “KHC”). Defendant employed Plaintiff as a
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`Production Manager on October 29, 2018. Plaintiff remained in this position until Defendant
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`discharged him from employment on March 26, 2020.
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`II. JURISDICTION
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`1. Jurisdiction of this action is established under 28 U.S.C. §1331 on the basis that this
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`complaint arises and presents federal questions under the Food Safety Modernization Act, 21 U.S.C.
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`§ 399d. Jurisdiction over the wrongful discharge is established pursuant to 28 U.S.C. §1367 because
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`the wrongful discharge claim is so related to the Food Safety Modernization Act claim that it forms
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`part of the same case or controversy under Article III of the Constitution.
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`2. Plaintiff administratively exhausted his claims under the Food Safety Modernization
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`Act in the United States Department of Labor, Occupational Safety and Health Administration
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`(OSHA). Plaintiff filed a timely complaint with OSHA on September 18, 2020. The Secretary has
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`not issued a final decision within 210 days after the filing of the complaint, and thus under Sec. 402
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`of the FSMA, Plaintiff may bring a claim for de novo review in this court.
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`III. PARTIES
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`1. Plaintiff was an "employee" of Defendant, including within the meaning of 21
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`U.S.C. § 399d. Defendant employed Plaintiff as a Production Manager on October 29, 2018.
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`Plaintiff remained in this position until Defendant discharged him from employment on March 26,
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`2020.
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`2. Defendant is one of the world’s largest food and beverage companies with $24.98B
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`in sales and revenue 2019. Defendant is an entity engaged in the manufacture, processing, packing,
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`transporting, and distribution of food within the meaning of 21 U.S.C. § 399d(a) as it has a plant at
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`3704 Louis Rich Rd., Newberry, South Carolina 29108, telephone number (803) 276-5015, which
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`manufactures and distributes meat products. Approximately 2,500 employees work at the Newberry
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`Plant. Plaintiff was an employee of Defendant’s Newberry Plant.
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`IV. BACKGROUND FACTS
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`3. Plaintiff Finley has 35 years of manufacturing experience, including 27 in food and
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`beverage. He worked for 18 years for Proctor and Gamble, Co., including as a Project Manager, and
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`for the Kellogg Company for 3 years, including as a Line Team Manager. Plaintiff was recruited by
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`Kraft Heinz to its Newberry Plant. He has never been terminated before. He had no prior discipline at
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`Kraft Heinz.
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`4. Defendant’s Newberry Plant produces a variety of meat products, including in the
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`forms of raw products and ready-to-eat products such as bacon and deli meat. Defendant distributes its
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`products throughout the United States or to other Kraft facilities for further processing.
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`5. In the past, KHC relied on visual inspection and metal detectors to try to ensure there
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`was no foreign material in its food products. Over the past couple of decades, food processors
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`increasingly have come to rely upon X-ray inspection to better detect physical contaminants during
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`production, especially those of a size and material that visual and metal detection will not detect. X-
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`ray machines can identify glass, bones, stones, and metal.
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`6. Consumption of hard or sharp foreign material like bone could cause injury to teeth,
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`mouth, throat, stomach, or intestine tissues if swallowed. Fragments can also present a choking hazard.
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`7. Kraft Heinz has had a number of recalls due to extraneous material in its product. In
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`March 2015, Kraft had a recall of 242,000 boxes of macaroni and cheese when customer complaints
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`revealed there was contamination of the product with metal. In November 2019, Kraft Heinz had to
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`recall 9,500 cases of Breakstone’s cottage cheese due to “bits of plastic and metal” in the product. In
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`January 2020, Kraft at Newberry began installing X-ray machines to detect contaminants. The goals
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`of X-ray machine installation included to keep customers safe and to comply with federal regulations
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`regarding adulteration.
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`8. In order for the X-ray machines to work correctly, the machines must be calibrated.
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`The machines are also to be validated, including testing with a card that contains particular material
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`fragments to run through the machine, to ensure that material is detected by the X-ray.
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`9. Processes governing Kraft Heinz production also include specifications for meat flow
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`and inventory. These processes are designed to ensure that consumers do not receive unsafe meat.
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`10. The FDC Act contains a definition of adulteration, at 21 U.S.C. § 342(a)(1), that
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`encompasses material like bone and issues like spoilation. That definition provides in pertinent part:
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`“A food shall be deemed to be adulterated--(1) [i]f it bears or contains any poisonous or deleterious
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`substance which may render it injurious to health…” 21 U.S.C. § 342(a)(1).
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`V. PROTECTED DISCLOSURES
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`11. Plaintiff engaged in protected activities and disclosures, including the following:
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`12. In the Summer of 2019, Plaintiff reported to HR’s Lawanna Wilson, direct manager
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`Josh Harp, and Plant Manager Randy Puckett severe staffing shortfalls that had the potential to
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`impact food safety. Plaintiff had lost three direct reports and did not have staff that were
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`properly trained to fill the missing roles. Plaintiff had staff two levels underneath him reporting
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`directly to him due to the shortfalls. Plaintiff noted the non-salaried staff two levels beneath
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`him who KHC left to fill the gaps were not qualified to fill these roles, and did not know how
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`to schedule production, and were not aware of the meat flow and inventory process with over-
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`aged meat. Because Quality and Warehouse audits at Kraft Heinz were only random, Plaintiff
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`had reasonable concerns that the short-staffing and lack of qualifications at his lines could lead
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`to food safety issues for downstream consumers.
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`13. During this time, Defendant had lots of rework and issues with improper sealing
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`and defects in the packaging. Harp did not offer much of a response to Plaintiff’s concerns,
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`Puckett told Plaintiff to develop people himself, and Wilson offered only that Defendant was
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`interviewing. However, after raising his concern about staff lacking understanding of the meat
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`flow and inventory process, Plaintiff’s manager forced Plaintiff to sign a document claiming
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`that Plaintiff did not understand the meat flow and inventory process. On information and
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`belief, this was designed to undermine Plaintiff’s protected disclosures.
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`14. Beginning around mid-February 2020, Plaintiff reported to his direct manager Josh
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`Harp, project manager John Klein, and Quality Supervisor Wanda Wright that the X-rays that
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`had been installed on the bacon lines were not being utilized properly. Specifically, the X-ray
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`machines used to detect bone in Defendant’s products had not been properly calibrated. Finley
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`reported further that the Production Department did not have the necessary cards to test the X-
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`ray machines to ensure they could detect dangerous foreign material in the bacon.
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`15. Throughout February and March 2020, Plaintiff continued to object to the improper
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`X-ray use because the Quality Department continued to have the Production Department run
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`meat through with bone in the meat over these objections. The Quality Department was
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`supposed to validate the machines, insure everyone was trained, calibrate the cards, and remove
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`the key to the machine to ensure the machine could not be bypassed. Plaintiff reported the
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`Quality Department had not done so. He sent photos he took of the bone in the meat to the
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`Quality and Production Department.
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`VI. ADVERSE ACTIONS
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`16. On March 24, 2020, Defendant placed Plaintiff on leave to “investigate” him for an
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`incident in which an employee, who reported to Finley’s subordinate Bobby Clark, reported to
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`work past the date on which she was supposed to have been terminated. Plaintiff met with his
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`manager Harp and HR’s Wilson multiple times to explain what had happened to the best of his
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`knowledge and denied involvement in or responsibility for the incident. Defendant claimed
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`Plaintiff provided evasive and inconsistent answers to the charges that he missed terminating
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`the individual. Defendant lacked any good faith basis for said claims.
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`17. On March 26, 2020, Kraft Heinz discharged Plaintiff claiming he had committed a
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`Code of Conduct violation for “dishonesty” but the actual grounds in whole or in part were
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`retaliation for his protected disclosures and because he refused to violate the laws, rules and/or
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`regulations governing Kraft Heinz operations. Defendant lacked any good faith basis for said
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`claim.
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`CLAIMS FOR RELIEF
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`VII. VIOLATION OF THE FOOD SAFETY MODERNIZATION ACT
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`18. Plaintiff realleges all Paragraphs above.
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`19. The foregoing facts demonstrate that Defendant is and was during relevant times an
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`entity engaged in the manufacture, processing, packing, transporting, distribution, reception,
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`holding, or importation of food within the meaning of 21 U.S.C. § 399d.
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`20. Plaintiff’s disclosures of adulteration to Kraft Heinz employees constituted protected
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`activity under 21 U.S.C. 399d, which provides protection for any employee who:
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`provided, caused to be provided, or is about to provide or cause to be provided to
`the employer, the Federal Government, or the attorney general of a State
`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 . . . .
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`21. Plaintiff disclosed events that he reasonably believed to be a violation of chapter 9 of
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`Title 21, the Federal Food, Drug, and Cosmetic Act (FDC Act). The FDC Act prohibits the
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`“adulteration” of food, as well as the manufacture of any food that is adulterated. 21 U.S.C. §
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`331(b) and (g). The FDC Act contains a definition of adulteration, 21 U.S.C. § 342(a)(1), that
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`encompasses bone in product and old, spoiled meat (i.e., “A food shall be deemed to be
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`adulterated--(1) [i]f it bears or contains any poisonous or deleterious substance which may render
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`it injurious to health”).
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`22. KHC had actual or constructive knowledge of Plaintiff’s protected disclosures when it
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`terminated him on March 26, 2020. Plaintiff reported his protected activities directly to
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`management, including top manager Plant Manager Randy Puckett, his direct manager Josh Harp,
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`HR’s Wilson, and the Quality Department.
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`23. Suspension and discharge from employment are adverse actions prohibited by 21
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`U.S.C. § 399d(a), which provides in pertinent part:
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`No entity engaged in the manufacture, processing, packing, transporting,
`distribution, reception, holding, or importation of food may discharge an employee
`or otherwise discriminate against an employee with respect to compensation, terms,
`conditions, or privileges of employment because the employee, whether at the
`employee’s initiative or in the ordinary course of the employee’s duties (or any
`person acting pursuant to a request of the employee)—
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`24. KHC suspended Plaintiff on March 24, 2020 and discharged Plaintiff on March
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`26, 2020, a time proximity of only a few weeks from his most recent whistleblowing
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`disclosures mid-March 2020.
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`25. The individuals responsible for deciding the termination were the same
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`individuals involved in receiving Plaintiff’s protected disclosures.
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`26. There are other circumstances showing that the protected activities were
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`contributing factors including that KHC’s discharge of Plaintiff was a deviation from its
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`normal procedure; that KHC treated Plaintiff disparately compared to its treatment of other
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`employees who violated procedures (including in this same time frame KHC only
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`suspended an employee who did what KHC alleged Plaintiff did); and that KHC relied on
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`pretextual factors to attempt to justify its discharge of Plaintiff.
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`27. In discharging Plaintiff, Defendant violated Section 402 of the Food and Safety
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`Modernization Act of 2011 ("FSMA"), codified at 21 U.S.C. § 399d, and the implementing
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`regulations at 29 C.F.R. § 1987, which provide that no entity engaged in the manufacture,
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`processing, packing, transporting, distribution, reception, holding, or importation of food
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`may discharge an employee if he reports to his employer information relating to violations
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`or perceived violations of any order, rule, regulation, standard or ban under the Food, Drug,
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`and Cosmetic Act (FDC Act).
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`28. Defendant’s termination of Plaintiff caused him actual, economic, non-
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`economic, compensatory and special damages including but not limited to (a) damage to
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`his career and ability to obtain the highest level employment within his industry; (b) lost
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`wages, income, and benefits; (c) damage to his professional reputation and interruption of
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`his demonstrated work history; and (d) ongoing mental and emotional distress, humiliation,
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`embarrassment, loss of self- esteem, and diminution in his enjoyment of life.
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`VIII.WRONGFUL DISCHARGE IN VIOLATION OF
`SOUTH CAROLINA PUBLIC POLICY
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`29. Plaintiff realleges all paragraphs above.
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`30. Defendant terminated Plaintiff because he refused to violate the laws governing food
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`safety at the Kraft Heinz facility. Defendant made clear its intent was to push through food
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`production despite the violations of food safety regulations and laws. Plaintiff refused to do so.
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`31. Defendant’s discharge of Plaintiff was in violation of clear mandates of public policy,
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`including (1) the protection of human life; (2) the protection of human health; (3) prohibitions on
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`conspiracies to violate the law; and (4) prohibitions on intimidation against citizens for exercising
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`their civil rights.
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`32. Congress enacted the Food Safety Modernization Act in response to dramatic changes
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`in the global food system and in the FDA’s responsibilities over foodborne illness and its
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`consequences, including the policy that foodborne illness is a significant public health and
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`economic problem which is preventable.
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`33. The South Carolina State Legislature established the South Carolina Meat Inspection
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`Department (SCMPID) in 1967 by enactment of inspection laws and regulations. The Legislature
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`passed the State Poultry Inspection Act in 1969. The state laws and regulations were developed
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`to comply with all essential features of the federal meat and poultry laws and regulations. The
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`mission of the SCMPID is to “protect the health of consumers by providing a comprehensive
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`inspection service to assure that meat and poultry products are safe, wholesome and accurately
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`labeled.”
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`34. The laws of South Carolina seek to ensure foods are manufactured and marketed under
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`safe and sanitary conditions, that food is pure and wholesome, safe to eat, and properly labeled
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`according to food safety laws and regulations.
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`35. South Carolina has also articulated clear “Offenses Against Public Policy” against
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`“Conspiracy”, two or more persons combining for the purpose of accomplishing an unlawful
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`object or a lawful object by unlawful means. (S.C. Code Ann. Sec 16-17-410) and “Assault or
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`intimidation on account of political opinions or exercise of civil rights” making it “unlawful for a
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`person to… intimidate a citizen [or] discharge a citizen from employment or occupation… because
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`of … the exercise of political rights and privileges guaranteed by the Constitution and laws of the
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`United States or by the Constitution and laws of this State.” (S.C. Code Ann. Sec. 16-17-560).
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`36. Plaintiff’s right to refuse to engage in unlawful activity that violate food safety laws,
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`to speak out against wrongdoing, and to petition for redress of wrongdoings are protected speech
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`under the Constitution and laws of the US and the State.
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`37. In discharging Plaintiff, Defendant also violated clear public policies favoring the
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`effective protection of the lives and health of citizens, including food safety laws and regulations
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`attempting to prevent illness and death. Defendant also violated clear public policies seeking to
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`prevent conspiracies to commit unlawful acts and intimidation of individuals for exercising their
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`civil rights.
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`38. Defendant’s suspension and termination of Plaintiff caused him actual, economic, non-
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`economic, compensatory and special damages including but not limited to (a) damage to his career
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`and ability to obtain the highest level employment within his industry; (b) lost wages, income, and
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`benefits; (c) damage to his professional reputation and interruption of his demonstrated work
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`history; and (d) ongoing mental and emotional distress, humiliation, embarrassment, loss of self-
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`esteem, and diminution in his enjoyment of life.
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`IX. PRAYER FOR RELIEF
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`39. Plaintiff requests that the Court award him the following:
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`a. Reinstatement to his employment with Defendant, and if reinstatement is not
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`ordered, then front pay for a period of at least five years;
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`b. Upon reinstatement, an injunction directing Defendant to remediate the hostile
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`work environment, harassment and intimidation to which it subjected Plaintiff;
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`c. Back pay for all lost wages and benefits, including lost bonuses;
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`d. Economic damages for injury to Plaintiff’s career, professional reputation and
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`earning capacity, in an amount to be determined at hearing;
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`e. Non-economic damages for mental and emotional distress, embarrassment and
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`humiliation, in an amount to be determined at hearing;
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`f. Expungement of written warnings, reprimands, negative performance
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`appraisals and other derogatory information and references which have been placed in the
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`Plaintiff’s personnel file;
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`g. Posting of a notice to Defendant’s employees indicating that the Defendant has
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`been ordered to comply with the FSMA’s anti-discrimination provisions, and to make appropriate
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`restitution to the Plaintiff;
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`h. Reasonable costs and attorney’s fees, together with the costs of expert witnesses;
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`i. Defendant should be ordered to provide a neutral employment reference, to include dates
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`of employment, job title, and final wage rate, to all potential employers regarding Plaintiff in the
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`event reinstatement is not ordered; and
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`j. All other relief that may be available from law and equity.
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`Respectfully submitted this the 10th day of February, 2022, in Columbia, South Carolina.
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`s/J. Christopher Mills _________________
`J. Christopher Mills, Esquire
`Federal I.D. 4802
`P.O. Box 8475
`Columbia, South Carolina 29202
`Telephone: 803-748-9533
`Facsimile: 803-753-9123
`Email: chris@chrismillslaw.com
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`Stephani Ayers, Pro Hac Vice Forthcoming
`Thad M. Guyer Pro Hac Vice Forthcoming
`T.M. Guyer and Ayers & Friends, PC
`P.O. Box 1061
`Medford, OR 97501
`Telephone: (813) 382-7865
`Email: stephani@whistleblowerdefenders.com
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`ATTORNEYS FOR THE PLAINTIFF
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