United States District Court, W.D. Washington, Seattle
ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY
S. Lasnik United States District Judge.
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).
reviewed the parties' memoranda, declarations, and
exhibits,  and taking the evidence in the light most
favorable to plaintiff, the Court finds as follows:
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
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.
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.
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.
Retaliation under FSMA.
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.
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). 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 ...