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Byron v. Institute for Environmental Health, Inc.

United States District Court, W.D. Washington, Seattle

December 19, 2019

JAMES BYRON, Plaintiff,


          Robert S. Lasnik United States District Judge.

         This matter comes before the Court on defendant Institute for Environmental Health, Inc.'s (“IEH”) motion for summary judgment. Dkt. #30. Summary judgment is appropriate where, taking the facts in the light most favorable to the nonmoving party, there is no dispute of material fact that would preclude judgment as a matter of law. The moving party “bears the initial responsibility of informing the district court of the basis for its motion.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). That party must also cite “to particular parts of materials in the record that show the absence of a genuine issue of material fact.” Fed.R.Civ.P. 56(c). That party is entitled to summary judgment if the non-moving party fails to identify “specific facts showing that there is a genuine issue for trial.” Celotex Corp., 477 U.S. at 324. The Court will “view the evidence in the light most favorable to the nonmoving party . . . and draw all reasonable inferences in that party's favor.” Krechman v. Cnty. of Riverside, 723 F.3d 1104, 1109 (9th Cir. 2013). Although the Court must reserve for the jury genuine issues regarding credibility, the weight of evidence, and legitimate inferences, the “mere existence of a scintilla of evidence in support of the non-moving party's position will be insufficient” to avoid judgment. City of Pomona v. SQM N. Am. Corp., 750 F.3d 1036, 1049 (9th Cir. 2014). Summary judgment should be granted where the nonmoving party has failed to offer evidence from which a reasonable jury could return a verdict in its favor. FreecycleSunnyvale v. Freecycle Network, 626 F.3d 509, 514 (9th Cir. 2010).

         Having reviewed the parties' memoranda, declarations, and exhibits, [1] and taking the evidence in the light most favorable to plaintiff, the Court finds as follows:


         IEH is a private company that provides, inter alia, laboratory testing services for the food industry. Dkt. #30 at 1. Plaintiff James Byron worked for IEH as a salesman from February 2010 until his employment was terminated in October 2011. Dkt. #43 at 2. In August 2011, Mr. Byron told his supervisor, Dr. Mansour Samadpour, that he thought a particular client would prefer that IEH test three sets of twenty-five samples of their product, significantly more than the number that had been proposed by IEH scientists. Dkt. #60-4. Dr. Samadpour replied that Mr. Byron's suggestion was inconsistent with industry guidelines. Id. Shortly thereafter, Dr. Samadpour terminated Mr. Byron's employment.

         Mr. Byron filed an administrative action with the Occupational Safety and Health Administration (“OSHA”) alleging that his termination was in retaliation for Mr. Byron's expressed concern that some of IEH's food sample testing procedures relied on an insufficient number of samples. See Dkt. #47-1. The OSHA complaint invoked the whistleblower provision of the federal Food Safety Modernization Act (“FSMA”), which generally protects employees in the food and drug industries from retaliation for opposing conduct they reasonably believe violates the Food, Drug, and Cosmetic Act (“FDCA”). Id. The FDCA regulates food and drug processing, production, and testing. See 9 U.S.C. §341 et seq.

         In the administrative proceeding, the Administrative Law Judge (“ALJ”) granted IEH's motion to dismiss Mr. Byron's complaint on the ground that FSMA's whistleblower protections did not cover IEH employees. Id. at 3; Dkt. #47-3 at 1. Mr. Byron appealed, and the Administrative Review Board reversed and remanded, finding that IEH is subject to FSMA. Dkt. #47-1 at 11. IEH then requested that the ALJ dismiss Mr. Byron's claim because (a) his communications did not qualify as protected activity and (b) IEH would have dismissed Mr. Byron even in the absence of his communications for other, legitimate reasons. Dkt. #47-3 at 3. The ALJ denied the motion, identifying continuing disputes of material fact with respect to whether or not Mr. Byron engaged in protected activity and whether or not IEH would have fired Mr. Byron regardless of any protected activity. Id. at 12.

         Mr. Byron filed this action seeking de novo review of his FSMA claim. See Dkt. #1. Mr. Byron again alleges that IEH unlawfully terminated his employment in retaliation for expressing his concerns about IEH's testing process in violation of § 402 of FSMA. Dkt. #1 at ¶¶ 46-47, 72-89. IEH seeks dismissal of the claim on the ground that plaintiff's communications about his concerns were not protected activity. Dkt. #30 at 8. In its reply memorandum, IEH raises a number of evidentiary objections to a declaration Mr. Byron submitted when opposing the motion for summary judgment. Dk. #53 at 12-13.


         A. Retaliation under FSMA.

         Mr. Byron argues that his reports to IEH regarding the insufficiency of IEH's testing procedures constituted protected activity under FSMA. Dkt. #1 at ¶¶ 73-89. FSMA's employee protection provision provides, in relevant part, that,

“No entity engaged in the . . . processing . . . of food may discharge an employee . . . because [he] 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 [the FDCA] or any order, rule, regulation, standard, or ban under [the FDCA]. . . .”

21 U.S.C. § 399d(a). FSMA specifically protects employees who give information to their employer about conduct they “reasonably believe” violates the FDCA. 21 U.S.C. §399d(a)(1). The implementing regulations for FSMA's whistleblower protections also adopt the “reasonable belief” standard. 29 C.F.R. § 1987.102(b). There are few cases in which the anti-retaliation provision of FSMA has been interpreted and applied, but the consensus is that the whistleblower provision extends to employees who report or oppose what they reasonably believe to be unlawful conduct, even if the conduct is not, in fact, unlawful. See Singletary v. Howard Univ., 939 F.3d 287, 296 and n.2 (D.C. Cir. 2019); Ortiz v. Priority Healthcare Group LLC, 2019 WL 3240016, at *7 (M.D. Pa. July 18, 2019); Chase v. Brothers Int'l. Food Corp., 3 F.Supp.3d 49, 54 (W.D.N.Y. 2014). The ALJ in the underlying administrative action similarly concluded that FSMA's anti-retaliation provision applies where the employee has a reasonable belief that the employer's conduct violated relevant law. Dkt. #47-3 at 6.

         Having reviewed FSMA's statutory language and the standards for stating a claim of retaliation against employers in other areas of federal law, the Court adopts the Ninth Circuit's formulation of a prima face case of retaliation under the Sarbanes-Oxley Act of 2002 (“SOX”), 18 U.S.C. § 1514A. Pursuant to that formulation, plaintiff must show that: “(1) he engaged in protected activity or conduct; (2) his employer knew . . . that he engaged in the protected activity; (3) he suffered an unfavorable personnel action; and (4) the circumstances were sufficient to raise an inference that the protected activity was a contributing factor in the unfavorable action.” Tides v. The Boeing Co., 644 F.3d 809, 814 (9th Cir. 2011).[2] Although an employee need not prove that the employer's conduct was, in fact, unlawful in order to satisfy the protected activity element of the prima facie case, he must show that his belief that the employer acted unlawfully was reasonable. See Rocheleau v. Microsemi Corp., Inc.,680 Fed.Appx. 533 (9th Cir. 2017) (employee not entitled to whistleblower protections where her belief ...

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