USCA4 Appeal: 24-1191 Doc: 77 Filed: 07/25/2025 Pg: 1 of 20
PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 24-1191
WILBERT FINLEY,
Plaintiff – Appellant,
v.
KRAFT HEINZ INC.,
Defendant – Appellee.
Appeal from the United States District Court for the District of South Carolina, at Anderson. Timothy M. Cain, Chief District Judge. (8:22-cv-00426-TMC)
Argued: May 7, 2025 Decided: July 25, 2025
Before THACKER and HARRIS, Circuit Judges, and Thomas T. CULLEN, United States District Judge for the Western District of Virginia, sitting by designation.
Vacated and remanded by published opinion. Judge Harris wrote the opinion, in which Judge Thacker and Judge Cullen joined.
ARGUED: Thad M. Guyer, T.M. GUYER & FRIENDS, PC, Medford, Oregon, for Appellant. Katelynn Mary Williams, FOLEY & LARDNER LLP, Madison, Wisconsin, for Appellee. ON BRIEF: Stephani L. Ayers, T.M. GUYER & FRIENDS, PC, Medford, Oregon, for Appellant. Daniel A. Kaplan, FOLEY & LARDNER LLP, Madison, Wisconsin, for Appellee. USCA4 Appeal: 24-1191 Doc: 77 Filed: 07/25/2025 Pg: 2 of 20
PAMELA HARRIS, Circuit Judge:
Wilbert Finley alleges that his former employer, Kraft Heinz, violated the Food
Safety Modernization Act by firing him because he raised food safety concerns. The
district court granted summary judgment to Kraft Heinz, holding that Finley could not
show that his safety complaints were a “contributing factor” in his dismissal. We disagree,
and thus vacate the district court’s judgment.
I.
A.
This appeal centers on Kraft Heinz’s termination of Wilbert Finley from his job as
a production manager at Kraft Heinz’s Newberry, South Carolina plant, where Finley was
responsible for bacon and other packaged deli meats. According to Finley, Kraft Heinz
fired him because he repeatedly raised concerns about food safety. But according to Kraft
Heinz, Finley was terminated for dishonesty during a human resources (“HR”)
investigation into the botched firing of another employee. We begin with some factual
background on Finley’s history of complaints and the HR investigation in question. We
turn then to the magistrate judge’s report and recommendation and the district court’s grant
of summary judgment to Kraft Heinz.
1.
It is undisputed that Finley’s job responsibilities included oversight of product
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quality and food safety. 1 Starting in the fall of 2019 and continuing through the spring of
2020, Finley’s work became contentious as Finley began pausing production to address his
safety concerns.
In particular, Finley was worried about “leakers” – improperly sealed bacon
packages that would allow pathogens to enter the meat – and about bone fragments big
enough to be dangerous. He regularly raised these concerns to his supervisors and to HR,
asserting that inadequacies in employee training and staffing shortages were resulting in
both leakers and bone fragments. In weekly meetings, Finley reported improper use of x-
ray machines meant to detect bone, and shared with his supervisors that he was finding too
much bone in the bacon. But according to Finley, his supervisors told him to continue
processing the product and not to discard it. On the occasions when Finley stopped
production to address the risks of adulterated meat, he was criticized by his direct
supervisor and the plant manager and told not to shut down the lines. 2 Frustrated, Finley
1 Where the facts are disputed, we generally recount them in the light most favorable to Finley, the nonmovant, and draw all reasonable inferences from the record in his favor. Ray v. Roane, 93 F.4th 651, 655 (4th Cir. 2024). In some cases, we will flag particularly notable disputes. 2 The parties dispute whether Finley was warned by co-workers and supervisors that he might be fired if he did not ease up on his complaints. To the extent Finley is relying only on general rumors, those statements would be excluded as hearsay that could not be properly substantiated at trial. But at least one co-worker attested that she heard such comments in conversations with supervisors and specific employees, which could be presented as non-hearsay at trial. J.A. 505; see Fed. R. Evid. 801(d)(2)(D) (statements of defendant’s employee on a matter within the scope of the employment relationship offered against the defendant are not hearsay).
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began running back and forth from the line to management’s offices with packages of the
bacon, opening them up and showing the bones in the meat.
The rate of complaints picked up in early 2020. On January 25, February 17,
February 18, and March 2, Finley shared data documenting meat quality issues with his
supervisors. On March 12, Finley raised concerns about insufficient staffing, including the
removal of a specialized food-safety employee. Twelve days later, on March 24, 2020,
Finley was suspended pending review, and two days after that, on March 26, he was
terminated.
2.
Notwithstanding the close proximity between Finley’s complaints and his
termination, Kraft Heinz insists Finley was fired because of an “intervening event”: an HR
investigation on March 24, 2020, involving the firing – more accurately, the non-firing –
of a different employee, during which, Kraft Heinz says, Finley made inconsistent
statements.
Two weeks earlier, on March 12, HR instructed one of Finley’s subordinates, Bobby
Clark, to terminate four of the employees he supervised. The termination of three of them
proceeded without incident: After having Finley add his signature to the relevant forms,
Clark walked the employees out of the plant and deactivated their badges. But one of the
employees, Yolanda Gaines, was not at work on March 12. So while it is undisputed that
Finley and Clark both signed Gaines’s termination form and that the form was turned into
HR on March 12, it appears that nobody actually fired Gaines. Instead, Gaines, upon her
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return, continued to work until March 24, when HR realized she was still there. Hence, the
investigation into the non-firing of Gaines.
An HR representative began by speaking with Clark, Gaines’s direct supervisor. It
was Clark who added Finley to the conversation, calling him to join the discussion with
HR. What was said during that meeting is disputed. Most important here, the HR
representative claims that Finley said something untrue: that he walked Gaines out of the
building on March 12 and deactivated her badge, as well as turning in her termination form
to HR. Based on that alleged misrepresentation – “saying he walked the employee out but
didn’t,” J.A. 383 – an HR manager told Finley’s supervisor that it appeared Finley had
been dishonest, and suggested further investigation.
Another HR employee then had a second conversation with Finley. Here, the parties
agree that Finley made clear he had not walked Gaines out of the building, and he denied
having said otherwise earlier in the day. As for the submission of the forms, Finley said
he had no specific recollection. But “if Mr. Clark had turned in paperwork to [him] to take
for HR,” Finley surmised, “then [he] would have transmitted it to HR.” J.A. 563.
Finally, there was a third conversation, with the HR employee and Finley now
joined by Finley’s supervisor. This time, Finley recorded the conversation, unbeknownst
to the others. Finley’s supervisor told Finley that according to HR, on March 12, Finley
had both turned in Gaines’s termination form and said, to HR, that he had walked Gaines
out and deactivated her badge. Finley again disclaimed having walked Gaines out or taken
her badge on March 12, pointing out that this was Clark’s responsibility, not his, and that
he had never deactivated a badge. And critically, he again denied having ever said
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otherwise, on March 12 or in his first meeting that day. As to the termination form, Finley
repeatedly said that he could not remember whether he or Clark turned in the paperwork
on March 12. “I turn in a lot of forms and sign a lot of forms, but, like I said, I don’t know.”
J.A. 578–79.
Kraft Heinz terminated Finley two days later, on March 26, for “dishonesty” and
“lack of integrity” during the March 24 investigation. J.A. 370. Specifically, according to
an email written by the HR manager who had weighed in early in the investigation, Finley
was fired because he gave “multiple accounts” of what happened with Gaines, “could not
give a consistent account,” and “failed to take any accountability for the situation nor his
lack of consistent story.” J.A. 633. Kraft Heinz cited its handbook, under which
“[d]ishonesty, including falsification or failing to correctly and accurately record and/or
document any company or processing record” can lead to termination on a first offense.
J.A. 378. The HR manager later attested that in the three years before Finley’s termination,
Kraft Heinz had terminated seven managers for dishonesty and 93 hourly employees for
falsification.
B.
After exhausting his claim with the Occupational Safety and Health Administration,
Finley filed this suit in federal district court. In his complaint, Finley alleged that his
termination was unlawful retaliation, in violation of the Food Safety Modernization Act
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(“FSMA”). 3 The district court, adopting the report and recommendation of a magistrate
judge, granted summary judgment to Kraft Heinz.
The magistrate judge evaluating Kraft Heinz’s motion for summary judgment
concluded that Finley was unable to establish a prima facie case of “contributing factor”
causation as is required for an FSMA claim. Finley v. Kraft Heinz Food Co., No. 8:22-cv-
426-TMC-KFM, 2023 WL 9470613, at *7 (D.S.C. Jul. 13, 2023). The judge and parties
agreed that the FSMA requires a plaintiff to show (1) that he engaged in protected activity,
(2) that he experienced an adverse employment action, and (3) that his protected activity
was a contributing factor in the adverse employment action. Id. at *6. On element one,
the judge assumed without deciding that Finley’s complaints would constitute protected
activity under the FSMA. Id. at *7. On element two, Kraft Heinz did not dispute that
Finley’s termination was an adverse action.
Focusing on the third, “contributing factor” causation element, the magistrate judge
acknowledged the “undoubtedly close temporal proximity” between Finley’s food safety
complaints in February and his termination in March. Id. But, the judge explained, the
causal inference normally raised by such temporal proximity was “severed” here by a
“legitimate intervening event” – Finley’s conduct during the March 24 investigation of
Gaines’s termination. Id. (quoting Feldman v. Law Enf’t Assocs. Corp., 752 F.3d 339, 348
3 Finley also pled one count of wrongful discharge in violation of South Carolina law. The district court granted Kraft Heinz’s motion to dismiss that count, and Finley does not appeal that dismissal.
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(4th Cir. 2014)). The judge recounted the investigation and concluded that there was
“evidence in the record supporting the defendant’s assertion that it terminated the
plaintiff’s employment based on dishonesty.” Id. at *8. He rejected Finley’s arguments
that an inference of retaliation could be drawn from other record evidence, including a shift
in the stated rationale for his firing and Kraft Heinz’s failure to take any action at all against
Clark. And the magistrate judge held that “[f]or the same reasons,” Kraft Heinz had shown
by clear and convincing evidence that “it would have terminated [Finley’s] employment in
the absence of his complaints,” id. at *8 n.4, meeting the burden that would have shifted to
Kraft Heinz had Finley made out his prima facie case.
Rejecting each of Finley’s objections, the district court agreed with the magistrate
judge and granted summary judgment to Kraft Heinz. Finley v. Kraft Heinz, Inc., No. 8:22-
cv-426-TMC, 2024 WL 340790, at *10 (D.S.C. Jan. 30, 2024). The court first considered
Finley’s objection that the magistrate judge had erred in treating his protected activity as
ending in February 2020 when in fact his complaints had continued into March. The court
recognized that Finley’s protected activity on March 12, when he complained about the
removal of a food-safety specialist, served as additional evidence of temporal proximity.
But that would make no difference here, the district court held, because it would not affect
the magistrate judge’s analysis of the “intervening event” on March 24. Id. at *7.
The district court also rejected Finley’s objection that the magistrate judge
improperly disregarded his “comparator” evidence – the failure of Kraft Heinz to take
disciplinary action against Clark for his role in the Gaines episode, despite the fact that
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Clark and not Finley was Gaines’s immediate supervisor and directly responsible for her
firing. Clark was not a valid comparator, the court held, because Kraft Heinz believed that
Finley, but not Clark, had “lied” during the investigation. Id. at *8. And Finley’s argument
that in fact, Clark had been “generally dishonest” about the Gaines episode, the court
concluded, would require it to “speculate” about the evidence. Id.
Finally, the court disagreed with Finley that there was evidence from which it could
be inferred that Kraft Heinz’s investigation was pretextual – that Kraft Heinz used the
investigation as an excuse to fire Finley for his protected activity. No reasonable trier of
fact, the court held, could find that Kraft Heinz’s investigation was so “obviously
inadequate” that it established pretext. Id. (quoting Powell v. Biscuitville, Inc., 858
F. App’x 631, 633 (4th Cir. 2021)). Nor were changes in the explanation for Finley’s firing
relevant to the pretext inquiry, the court concluded, because however framed, “[t]hese
explanations clearly refer to dishonesty” and further “pars[ing of] the language” was
unreasonable. Id. at *10.
The district court thus adopted the magistrate judge’s report and recommendation
and granted summary judgment to Kraft Heinz. Finley timely appealed.
II.
We “review a district court’s award of summary judgment de novo, applying the
same standards as those governing the district court’s review of the record.” Cosey v.
Prudential Ins. Co. of Am., 735 F.3d 161, 170–71 (4th Cir. 2013). The district court
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reviews a magistrate judge’s report and recommendation de novo on all portions on which
one or more party filed objections. 28 U.S.C. § 636(b)(1).
Summary judgment is appropriate only when “there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of law.” Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed. R. Civ. P. 56). In considering
that question, we review the record in the light most favorable to the non-movant – here,
Finley – and draw all reasonable inferences in his favor. Ray v. Roane, 93 F.4th 651, 655
(4th Cir. 2024).
We begin by clarifying a few threshold issues. First, all agree that the FSMA, which
protects employees whose work involves the manufacture or distribution of food, instructs
courts to review retaliation claims under a “contributing factor” standard commonly used
in whistleblower statutes. 4 As the plaintiff, Finley bears the initial burden to demonstrate
that he engaged in whistleblower activity protected by the FSMA 5 and that this protected
4 The standard was first utilized in the Wendall H. Ford Aviation Investment and Reform Act for the 21st Century, 49 U.S.C. § 42121(b)(2)(B), so it is often referred to as the “AIR-21” standard. Although our court lacks precedent applying the FSMA, we are guided by our precedent applying other AIR-21 statutes, including the Sarbanes Oxley Act, the Surface Transportation Assistance Act, and the Federal Railroad Safety Act. 5 The FSMA protects food-industry employees from being terminated or otherwise discriminated against because the employee (1) provided information to the employer, federal government, or state attorney general on a violation, or what the employee reasonably believes to be a violation, of the FSMA; (2) testified about such violation; (3) participated in a proceeding about such violation; or (4) objected to or refused to participate in an action the employee reasonably believed to be a violation of the FSMA. 21 U.S.C. § 399d(a)(1)–(4).
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activity “was a contributing factor in the unfavorable personnel action alleged.” 21 U.S.C.
§ 399d(2)(C)(iii). If he does so, then the burden shifts to the employer to demonstrate “by
clear and convincing evidence that the employer would have taken the same unfavorable
personnel action in the absence of that behavior.” Id. § 399d(2)(C)(iv).
Although the magistrate judge correctly described this framework, the district court
erroneously referred not to the FSMA’s “contributing factor” standard but instead to the
familiar but-for causation framework for analyzing retaliation under statutes like Title VII
and the ADEA. See Finley, 2024 WL 340790, at *4–5. This is a meaningful difference;
as the Supreme Court has explained, the contributing-factor standard is more generous to
employees and “not as protective of employers” than causation standards under other
statutes. Murray v. UBS Sec., LLC, 601 U.S. 23, 39 (2024). “That is by design. Congress
has employed the contributing-factor framework in contexts where the health, safety, or
well-being of the public may well depend on whistleblowers feeling empowered to come
forward.” Id. It is not clear that the district court’s reference to but-for causation affected
its substantive analysis of Finley’s objections. Regardless, we analyze Finley’s claims
under the contributing-factor standard set forth in the FSMA.
Second, though Finley argues that the Supreme Court’s recent decision in Murray
“abrogates” the analyses of the magistrate judge and district court, we disagree. In Murray,
the Supreme Court rejected a reading of the “contributing factor” causation standard that
would require a plaintiff to prove not only that his protected activity was a contributing
factor in the contested personnel action but also that his employer acted with retaliatory
intent or animus. “An animus-like ‘retaliatory intent’ requirement,” the Supreme Court
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held, is “simply absent” from the relevant statutory text. Id. at 34. That is an important
clarification, but it has nothing to do with this case. Kraft Heinz is not defending on the
ground that it terminated Finley because of his complaints but without animus and only
because, say, it believed Finley “might be happier” in a different job. Id. at 35. Kraft Heinz
never argued that Finley was required to show retaliatory intent but had failed to do so, and
neither the magistrate judge nor the district court alluded to any such requirement. So,
Murray’s holding has no bearing on this case.
Like the magistrate judge and district court, we focus on the causation element of
Finley’s case. 6 To show that his protected activity was a “contributing factor” to his
termination, Finley must establish – by a preponderance of the evidence, in making his
prima facie case – that his activities “tend[ed] to affect in any way” Kraft Heinz’s decision
to terminate him. Feldman v. Law Enf’t Assocs. Corp., 752 F.3d 339, 348 (4th Cir. 2014)
(citation omitted). “This element is broad and forgiving,” id. (quotation marks and citation
omitted), and Finley “need not show that the activities were a primary or even a significant
cause of his termination,” id. So long as his complaints “affect[ed] his termination in at
6 Kraft Heinz also argues that Finley did not engage in FSMA protected activity. Both the magistrate judge and the district court assumed without deciding that Finley’s complaints and warnings constituted protected activity. Although it is within our discretion to affirm on any ground supported by the record, we decline to address this issue in the first instance. Instead, we leave it to the district court to reassess that assumption on remand. See Goldfarb v. Mayor & City Council of Baltimore, 791 F.3d 500, 515 (4th Cir. 2015) (“The district court is in a better position to consider the parties’ arguments in the first instance, which can be presented at length rather than being discussed in appellate briefs centered on the issues the district court did decide.”).
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least some way,” id., he has made the necessary showing. At that point, the burden shifts
to Kraft Heinz, which may nevertheless prevail if it can establish, by clear and convincing
evidence, that it would have taken the same action and fired Finley even “in the absence of
[his] protected activity.” Id. at 345.
In the magistrate judge’s view, adopted by the district court, Finley could not show
contributing-factor causation because of the “intervention” of the March 24 investigation,
which severed any causal connection between Finley’s prior complaints and his firing on
March 26. Finley, 2024 WL 340790, at *5. And for the same reason, Kraft Heinz had
satisfied its burden on rebuttal: In their view, the record established that Finley’s
“dishonesty” during the March 24 investigation was sufficiently troubling to Kraft Heinz
that it would have fired him even if he had never raised concerns about food safety. Id. at
*6 & n.3.
We agree that given Kraft Heinz’s defense here, these two inquiries – whether the
“intervening” March 24 investigation foreclosed Finley’s causation showing and whether
it established Kraft Heinz’s “same action” defense – are closely related and intertwined.
At bottom, Kraft Heinz seeks summary judgment on the ground that it can show, as a matter
of law, that Finley’s protected activity had no effect on his termination because Finley’s
failure to give a consistent account of his actions on March 24 was a “legitimate intervening
event” that fully explains why he was fired – and why would have been fired regardless of
any prior protected activity. Contrary to the view of the magistrate judge and district court,
we do not think that Kraft Heinz has made that showing.
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In the usual case, a showing of close temporal proximity alone is sufficient to
demonstrate causation. Barbour v. Garland, 105 F.4th 579, 593 (4th Cir. 2024) (“[A]
plaintiff may demonstrate causation by temporal proximity, or by ‘the existence of facts
that suggest that the adverse action occurred because of the protected activity,’ or by a
combination of the two.” (citation omitted)). As our court has explained with respect to
the federal whistleblower statute, when an adverse action is taken shortly after protected
activity by someone aware of that activity, a reasonable jury may infer that the protected
activity was a contributing factor to the action. Mikhaylov v. Dep’t of Homeland Sec., 62
F.4th 862, 868 (4th Cir. 2023).
Finley raised concerns about food safety in the late summer and fall of 2019 and
into the winter of 2020. The frequency of his reports escalated in February 2020 and
continued in March 2020. Indeed, although the magistrate judge stopped the timeline of
complaints in February, the record shows Finley voicing concerns to supervisors and to
HR on March 2, March 9, March 12, and March 19. Ordinarily, the extremely close
temporal proximity between Finley’s complaints and his termination on March 26 would
be sufficient, by itself, to support an inference of contributing-factor causation.
Here, of course, Kraft Heinz argues that the events of March 24 constituted a
“legitimate intervening event,” Feldman, 752 F.3d at 349, and therefore severed any causal
link between Finley’s prior protected activity and his subsequent firing two days later. We
disagree. The March 24 investigation, like any intervening event, must be considered in
the causation analysis. But an “intervening event” is not a talisman that makes all other
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evidence of causation disappear, establishing conclusively that there can be no connection
between protected activity and an adverse action. The events of March 24 should be
considered not in isolation, but in conjunction with Finley’s evidence of contributing-factor
causation.
In Feldman, on which the magistrate judge primarily relied for his intervening event
analysis, we held that the plaintiff in a whistleblower case had failed to satisfy even the
“rather light burden” of showing contributing-factor causation. 752 F.3d at 348. That was
so for two reasons: first, a conceded “complete absence of temporal proximity” between
protected activity and adverse action; and second, “a legitimate intervening event further
undermining a finding that [the plaintiff’s] long-past protected activities played any role in
[his] termination.” Id. at 348–49. So, in that case, we found that a “legitimate intervening
event, coupled with the passage of a significant amount of time after [the] alleged protected
activities, sever[ed] the causal connection.” Id. at 349.
Feldman’s reasoning – that the causal inference from temporal proximity “may be
severed by the passage of a significant amount of time, or by some legitimate intervening
event,” id. at 348 (emphasis added) (citation omitted) – does not mean that such an event
will always operate to “sever” any causal link between earlier protected activity and a
subsequent adverse action. An intervening event may “undermin[e],” id. at 349, the
strength of an inference that otherwise would arise from temporal proximity. But the
question at summary judgment remains the same: In light of all the evidence, including
the intervening event, could a reasonable jury conclude that Finley’s protected activity
tended to affect his termination? See Genberg v. Porter, 882 F.3d 1249, 1258–59 (10th
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Cir. 2018) (rejecting defense that firing was due to an intervening investigation when
evidence suggested investigation was instigated as a response to the protected activity);
Ameristar Airways, Inc. v. Admin. Rev. Bd., 650 F.3d 562, 569 (5th Cir. 2011) (intervening
performance critiques bolstered inference of causation rather than defeating it because
suspicious timing suggested pretext).
Here, the district court and magistrate judge failed to properly conduct that inquiry.
Instead of evaluating the record as a whole to determine whether a reasonable jury could
find in Finley’s favor, the district court and magistrate judge evaluated whether there was
evidence in the record to support Kraft Heinz’s claim that it terminated Finley because of
dishonesty during the March 24 investigation. See Finley, 2023 WL 9470613, at *8. But
as Finley correctly objects, the existence of evidence in the record to support Kraft Heinz’s
position does not negate the existence of evidence to support his own. The district court
and magistrate judge were still required to consider all the evidence – the evidence
supporting Finley as well as the evidence supporting Kraft Heinz – to determine whether a
reasonable jury could side with Finley.
When we undertake that inquiry, we conclude that this record gives rise to genuine
issues of material fact for a jury. We take the evidence as a whole, and view it in the light
most favorable to Finley, drawing all reasonable inferences in his favor. See Ray, 93 F.4th
at 655. So viewed, we think the record would allow a reasonable jury to determine that
Finley’s food safety complaints contributed to Kraft Heinz’s decision to fire him, and that
Kraft Heinz may not have made that decision if not for his food safety complaints.
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First, a reasonable jury could give weight to the very close temporal proximity
between Finley’s complaints, the investigation into Finley’s conduct, and Finley’s firing.
As explained above, an intervening event does not automatically dispel any inference
arising from temporal proximity. A jury considering all the evidence could find that the
March 24 investigation weakened or even fully “severed” the inference. But it also could
find that the fact that Finley was deemed “dishonest” shortly after he increased the
frequency of his objections to Kraft Heinz’s food safety procedures in February and March
weighs in Finley’s favor as part of the totality of the evidence.
Second, there is the question of comparators. Finley argues that he was disciplined
more severely than others involved in the Gaines non-firing, allowing a reasonable jury to
infer that Kraft Heinz singled him out because of his prior safety complaints. See generally
Cook v. CSX Transp. Corp., 988 F.2d 507, 511 (4th Cir. 1993) (discussing use of
comparator evidence to prove discrimination). In particular, Finley points to Clark: It is
undisputed that Clark was Gaines’s direct supervisor and the person primarily in charge of
her termination process, that Clark had not previously raised food safety complaints, and
that Clark was not disciplined at all for his part in the botched Gaines firing. According to
Finley, a jury could reasonably infer that Kraft Heinz’s decision to impose the most severe
disciplinary sanction on him and no sanction on Clark was affected in some part by Finley’s
prior complaints.
We agree. The district court held that Clark was not a valid comparator, adopting
Kraft Heinz’s view that Clark, unlike Finley, had not been dishonest during the Gaines
investigation. Finley, 2024 WL 340790, at *8. But that is a genuinely disputed question
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of fact. Most critically, Kraft Heinz accepted at face value Clark’s claim that because he
was scheduled to be away on March 13 – the day after Gaines originally was to have been
fired – he handed off responsibility for the firing to Finley, telling him that if Gaines
showed up at work on March 13, Finley would have to walk her out of the building. But
Finley has consistently denied that account. And he can point for support to the fact –
acknowledged by Clark – that Clark cannot assign tasks to Finley, his boss, and to
testimony from another plant supervisor that he heard Clark tell Finley that Clark would
take care of firing Gaines when she returned. Finley, 2023 WL 9470613, at *5. The district
court believed that sorting through this dispute would require it to “speculate” about what
really happened. Finley, 2024 WL 340790, at *8. That is correct – and precisely why
whether Clark is a valid comparator cannot be determined, on this record, as a matter of
law. See Haynes v. Waste Connections, Inc., 922 F.3d 219, 224–25 & n.1 (4th Cir. 2019). 7
Third, a jury could have questions about what Kraft Heinz really thought of Finley’s
behavior on March 24 and the consistency of its rationales for targeting and then firing
him. As the district court saw it, Kraft Heinz believed Finley “lied” during the investigation
and fired him for that reason. Finley, 2024 WL 340790, at *8. And that is indeed how
Kraft Heinz, or at least an HR manager, originally characterized the problem with Finley’s
conduct: Finley had told an outright lie during his first meeting, “saying he walked the
employee out but didn’t,” which sounded like “dishonesty.” J.A. 383. But there is
7 The district court also dismissed Finley’s argument regarding Clark’s dishonesty as untimely raised. Finley, 2024 WL 340790, at *8. We disagree. Finley raised allegations of Clark’s dishonesty in his initial opposition to the motion for summary judgment.
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deposition testimony from another HR employee saying that Kraft Heinz never concluded
Finley lied, much less intentionally. Instead, internal records say Kraft Heinz found a
“[l]ack of integrity,” J.A. 635, in Finley’s purportedly inconsistent answers and failure to
recall who sent Gaines’s form to HR.
The magistrate judge thought this was just a matter of semantics, and it is indeed a
subtle distinction. But for a jury charged with determining the credibility of Kraft Heinz’s
position that it would have fired Finley for his March 24 conduct regardless of his food
safety complaints, the gravity of that conduct – the difference between an intentional lie
and an alleged inconsistency over the course of a day of meetings – could very well make
a difference. 8 Or, of course, a jury might credit Finley and conclude that there was no
inconsistency at all: Although Finley did not remember who turned in Gaines’s termination
form, he stood firm that he had not walked Gaines out, deactivated her badge, or told
anyone that he had done so.
At summary judgment, of course, it is not the court’s role to weigh this evidence or
make credibility determinations in favor of either party, and we express no view on the
ultimate merits of this dispute. We hold only that a reasonable jury could infer from the
8 For related reasons, Kraft Heinz’s declaration that it had recently terminated other employees at the Newberry plant for “dishonesty” is of limited probative value. As Finley argues, the declaration provides no specifics as to the gravity of the conduct in any of those cases – which could, for instance, have involved intentional lying as to a critical safety issue, rather than a failure to reconstruct a full and consistent account of an HR termination process gone awry. Charged with viewing the record in the light most favorable to Finley, we cannot just assume that the other “dishonesty” cases cited by Kraft Heinz are similar to Finley’s.
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record, considered as a whole, that something more than Finley’s alleged “dishonesty” on
March 24 contributed to his firing by Kraft Heinz, 9 and that Finley’s increasingly urgent
food safety complaints – culminating immediately before his termination – “affect[ed] his
termination in at least some way.” Feldman, 752 F.3d at 348. And for much the same
reason, a jury could also doubt Kraft Heinz’s position that it would have taken the “same
action” – firing Finley, while leaving Clark undisciplined – even if Finley had never voiced
a concern about food safety. Under those circumstances, the district court erred in
awarding summary judgment to Kraft Heinz.
III.
For the foregoing reasons, we vacate the district court’s grant of summary judgment
to Kraft Heinz and remand for further proceedings consistent with this opinion.
VACATED AND REMANDED
9 Kraft Heinz argues that Finley’s deposition testimony is inconsistent with such a conclusion, because Finley refused to say that his supervisor and an HR employee lied when they said he was terminated for dishonesty. That statement does not carry the weight Kraft Heinz thinks it does. We do not take either party to doubt that the stated rationale for Finley’s termination was dishonesty. The question is whether a reasonable jury could conclude that how Kraft Heinz conducted the investigation, arrived at that conclusion, and disciplined Finley for that alleged dishonesty was in some way affected by his earlier protected activity.