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From: The eUpdate, 6.25.13
Whistleblower Case Filed in Federal Court under FSMA
Employee terminated after raising safety concerns
A complaint against Brothers International Food Corp., brought by a former employee, alleges that the company fired the plaintiff in retaliation for raising safety and health concerns about its products. The June 6 complaint, filed in U.S. District Court for the Western District of New York, is the first to be filed in a federal court under the employee protection provisions of the Food Safety Modernization Act (FSMA), according to a public interest advocacy organization.
The so-called whistleblower provisions enacted as part of FSMA state that employees of firms involved in food production or distribution cannot be terminated or otherwise retaliated against because they raise objections to practices they believe are in violation of the Federal Food, Drug and Cosmetic Act. While a number of FSMA cases have been brought forward since the legislation became law in 2011, this is the first to be filed in a federal court, says Amanda Hitt, director of the Government Accountability Project’s Food Integrity Campaign.
“This is the first opportunity for a private employee in the food sector to take advantage of the comprehensive whistleblower protections offered in FSMA,” Hitt says in an email to Food Quality & Safety. “The FSMA whistleblower provision contains robust language protecting whistleblowers and provides them with best-practices due process rights.”
Colin Chase, the plaintiff, was director of e-commerce for Brothers International before he was let go last July. The termination came after Chase raised health and safety concerns regarding the redating and sale of expired food products, including foods marketed to toddlers such as fruit crisps. Chase also raised questions about the possibility of bacterial contamination resulting from the rehydration of apple crisps. He was told that the “soggy” apple products would continue to be sold, and that customers who complained should receive a discount coupon for a future purchase, according to the complaint. Chase “was terminated in retaliation for pursuing such safety and health concerns,” the complaint alleges.
Shortly after Chase raised the safety concerns, the company began requiring employees to sign a nondisclosure agreement, says Chase's counsel in the complaint, Elizabeth Cordello, Esq., of Underberg & Kessler LLP.
“Mr. Chase was being asked to sign a nondisclosure agreement that he was not comfortable with. The requirement that he sign such an agreement came at the same time that he was making these protective complaints. He was coming to our office to review that agreement, but unfortunately he was terminated before we could meet,” explains Cordello in an interview.
“I’m pleased that Colin Chase’s case will be the first to have been filed in federal court,” she continues. “Perhaps more employees out there, if they’re aware of workplace practices that aren’t conforming to protocol, will now have the courage to come forward with their cases as well.”
Cordello calls the employee protections of FSMA one of “our first lines of defense as it pertains to food, making sure that safe food reaches our tables.”
The following statement from Stephen J. Jones, Nixon Peabody LLP, Counsel for Brothers International Food was received by Food Quality & Safety on July 9 in response to the lawsuit:
"Brothers International was recently sued by a disgruntled former employee (Colin Chase) alleging retaliation under the Food Safety Modernization Act. The lawsuit is completely meritless and we look forward to getting it dismissed. We plan to file a motion asking the court to dismiss the case immediately. Mr. Chase’s allegation that he was terminated in retaliation for raising concerns about the moisture content of certain products is totally baseless. Brothers terminated him for a completely legitimate reason that had nothing whatsoever to do with any such complaint.
Any insinuation by Mr. Chase that Brothers’ products were defective is patently false. Food quality and safety is of paramount importance to Brothers and the company has always maintained the highest quality and safety control standards. There has never been any finding of any kind of defective products by any regulatory body. In fact, after Mr. Chase expressed his alleged concerns, Brothers sent the products in question to be tested at an independent laboratory, which confirmed that the products were entirely safe for consumption. This report was provided to the United States Department of Labor (DOL) during its investigation of Mr. Chase’s termination complaint. Even his allegations about “expiration dates” are completely false, as Brothers does not put 'expiration dates' on any of its products; Brothers only uses 'best by' dates. Significantly, after conducting a thorough investigation of Mr. Chase’s claims, the DOL issued no finding that Mr. Chase’s termination was retaliatory.
Mr. Chase’s true objective in filing the lawsuit is apparent from the initial demand letter sent by his attorney to Brothers. In this demand letter, Mr. Chase does not request that Brothers re-test any products or discontinue their sale. Rather, he demanded over $100,000 from Brothers in exchange for a release of his potential 'claims.' Mr. Chase’s attorney also threatened that her client would “go public” (which she has now done) with his allegations unless the case settled. Brothers refuses to capitulate to this kind of legalized extortion.
Brothers has also filed a federal lawsuit against Chase (several months before Mr. Chase filed his lawsuit in federal court) for misappropriating proprietary company data. As the former eCommerce Director, Mr. Chase had access to such information, and sadly admits to taking this data. Mr. Chase is now bound by a federal court order not to use this proprietary data in any way (upon request, we will supply a copy of the court order). We also believe he attempted to sabotage the company website by blocking it from search engines."
On July 15, Food Quality & Safety received the following statement from Elizabeth Cordello, Esq. , of Underberg & Kessler LLP, as Counsel for Chase, as a response to Brothers’ statement above dated July 9:
“Mr. Chase can fully corroborate his claims that he complained to Brothers co-CEO Travis Betters regarding Brothers practice of redating expired best buy dates (internally referred to as ‘exp. Dates’) on its products. Brothers does not and cannot deny this claim. Mr. Chase can also fully corroborate that he complained regarding the continued sale of improperly rehydrated Brothers All Natural Fuji Apple Fruit Crisps. Brothers does not and cannot deny this claim. Mr. Chase can prove that he reasonably believed these products were not safe for consumption and that he was retaliated against and ultimately terminated due to these protected complaints.
During the course of Mr. Chase’s employment, Brothers displayed no interest in testing any products or discontinuing the sale of the products in question. Thus, Mr. Chase had no reason to believe such a request would be entertained by Brothers after his termination. Brothers states ‘after Mr. Chase expressed his alleged concerns’ that it had the ‘products in question’ tested. That food safety test was not conducted until after Mr. Chase was terminated for voicing his food safety concerns and after legal action regarding same was imminent.
The Department of Labor did not conduct a ‘thorough investigation’ of Mr. Chase’s claims. Due to a backlog of cases, Mr. Chase was advised that the DOL would not be able complete an investigation and render any determination soon. Thus after the minimum 210 day waiting period required by law, Mr. Chase exercised his right to file a federal lawsuit.
After Mr. Chase’s termination, his attorney sent a correspondence marked ‘Confidential’ to Brothers, which included a legal assessment of the damages suffered by Mr. Chase at that time. It is unfortunate that Brothers would wrench portions of a confidential attorney communication out of context and misrepresent such communication for its own self-serving purposes. Mr. Chase’s attorney categorically denies the “go public” statement attributed to her, in addition to engaging in ‘extortion.’
Finally, there was no ‘sad admission’ by Mr. Chase of ‘misappropriating proprietary company data.’ In further retaliation against Mr. Chase’s whistleblowing activity, Brothers sued Mr. Chase in federal court (Brothers later voluntarily withdrew the lawsuit). Upon the advice of his attorney and to avoid further litigious bullying by Brothers, Mr. Chase voluntarily agreed not to copy, disseminate or otherwise distribute certain information on his home computer. Mr. Chase denies attempting to “sabotage” the company website.”