Tim Pignato v. Givaudan Flavors
Filing
46
Motion for summary judgment 30 is granted on count 1 and denied on count 2. Memorandum Opinion and Order signed by the Honorable Robert W. Gettleman on 3/13/2013: Mailed notice (gds)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
TIM PIGNATO,
Plaintiff,
v.
GIVAUDAN FLAVORS CORPORATION,
Defendant.
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No. 11 C 7090
Judge Robert W. Gettleman
MEMORANDUM OPINION AND ORDER
On October 7, 2011, Tim Pignato (“plaintiff”) filed a two-count complaint against
defendant and former employer Givaudan Flavors Corporation (“defendant”) alleging violations
of the Illinois Whistleblower Act (“IWA”), 740 ILCS 174/1 et. seq., (Count I) and retaliatory
discharge in violation of Illinois public policy in connection with his termination from
employment (Count II). On November 16, 2012, defendant filed a motion for summary
judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons given
below, the court grants defendant’s motion on Count I and denies defendant’s motion on Count
II.
Background1
Plaintiff was employed by defendant for approximately ten years, most recently serving
as the maintenance supervisor at defendant’s food manufacturing production facility in Itasca,
Illinois, from 2008 until November 2010. During mid-October of 2010, defendant hired a
contractor to paint the Itasca facility. On October 26, 2010, shortly after the task was complete,
plant employees noticed that the ceiling paint in the plant had begun to chip. The paint chips fell
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The following facts are, unless otherwise specified, undisputed and come from the
parties' L.R. 56.1 statements.
into blenders used to produce food products and steps were taken on October 26, 27, and 28 to
sanitize both the facility and the blenders. Plaintiff and defendant dispute the events surrounding
defendant’s response to the peeling paint situation and plaintiff’s advice during the course of the
incident.
On October 26, 2010, in response to the discovery of the falling paint chips, operations
manager and plaintiff’s supervisor, Tom Grant, halted production and directed workers to “wet
wash” the food blenders in the facility to remove the paint chips and sanitize the machines. He
further ordered plaintiff to immediately hang plastic sheeting in the production hall over the
product zones to prevent paint chips from getting into the food blenders, and to hang additional
sheeting over a larger area the next morning. These tasks were completed. On October 27, 2010,
a reassessment of the facility was done at 5:00 a.m. According to defendant, Grant gave
instructions that if additional paint chips were found after the sanitation was complete and
additional plastic was hung, production should be halted further and maintenance staff should do
a second round of sanitation of the blenders.
At 7:00 a.m., after the additional sheeting was hung, plaintiff spoke to Grant, who had
left the facility. According to Grant, plaintiff lied and told Grant that plaintiff and the other
managers were comfortable with resuming production. Grant alleges that the other managers at
that meeting did not agree with plaintiff that it was safe to resume production, and that plaintiff
was very upset with the other supervisors for their failure to agree with his assessment and was
very defensive in the meeting. Plaintiff disputes this version of events and claims that, after the
first sanitation was complete and the plastic was hung, he realized that additional “wet washing”
of the production facility would generate steam and cause more paint to flake. He claims that he
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communicated his concerns to Grant and suggested that to solve the problem, the plant surface
be stripped of paint entirely. Plaintiff alleges that he advocated shutting down production and
that Grant refused to do so. Two more rounds of sanitation were done, and paint chips were
discovered after each cleaning, which Grant blamed on plaintiff. The facility did not resume
production on October 27 or 28.
Plaintiff did not work on October 29, 2010. When he returned to work on October 30,
plaintiff claims that he discovered paint chips throughout the facility and attempted to convince
the Production Manager, Brian Fox, to shut down production. According to plaintiff, when Fox
related that others agreed but that it was not his decision to make, plaintiff decided to take
action. He called the FDA hotline, as well as the company whose products were being produced
at the facility, and emailed Grant’s supervisor to inform the supervisor of his concerns. On
November 1, 2010, plaintiff again called the customer company and advised them of possible
contamination of their products.
At about 7:00 p.m. on November 3, 2010, Grant called plaintiff and informed him that he
was suspended indefinitely pending further investigation. On November 5, 2010, Tina Steifel, a
human resources employee, called plaintiff into the facility, where he was informed that he had
been terminated. Plaintiff contends that he was terminated as a result of his whistleblowing
activities, in violation of the IWA and Illinois public policy.
DISCUSSION
A.
Summary Judgment Standard
A movant is entitled to summary judgment under Rule 56 when the moving papers and
affidavits show there is no genuine issue of material fact and the movant is entitled to judgment
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as a matter of law. See Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct.
2548, 91 L.Ed.2d 265 (1986); Unterreiner v. Volkswagen of Am., Inc., 8 F.3d 1206, 1209 (7th
Cir. 1993). Once a moving party has met its burden, the nonmoving party must go beyond the
pleadings and set forth specific facts showing there is a genuine issue for trial. See Fed.R.Civ.P.
56(c); Becker v. Tenenbaum–Hill Assocs., Inc., 914 F.2d 107, 110 (7th Cir. 1990). The court
considers the record as a whole and draws all reasonable inferences in the light most favorable to
the party opposing the motion. See Fisher v. Transco Services–Milwaukee Inc., 979 F.2d 1239,
1242 (7th Cir. 1992).
A genuine issue of material fact exists when “the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Stewart v. McGinnis, 5 F.3d 1031, 1033 (7th Cir.
1993). The nonmoving party must, however, do more than simply show that there is some
metaphysical doubt as to the material facts. Matsushita Elec. Indus. Co., v. Zenith Radio Corp.,
475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). “The mere existence of a scintilla of
evidence in support of the [nonmoving party's] position will be insufficient; there must be
evidence on which the jury could reasonably find for the [nonmoving party].” Anderson, 477
U.S. at 252.
B.
Claim under the IWA and Retaliatory Discharge
Plaintiff has asserted two claims: violation of the IWA, 740 ILCS 174/1 et. seq., and
retaliatory discharge in violation of Illinois public policy in connection with his termination from
employment. The IWA prohibits an employer from “retaliat[ing] against an employee for
disclosing information to a government or law enforcement agency, where the employee has
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reasonable cause to believe that the information discloses a violation of a State or federal law,
rule, or regulation.” 740 ILCS 174/15. The Act also prohibits an employers from “retaliat[ing]
against an employee for refusing to participate in an activity that would result in a violation of a
State or federal law, rule, or regulation . . . .” 740 ILCS 174/20. Plaintiff claims that both
provisions apply to this case, because he both made a report to the FDA and refused to
participate in the running of production while he believed FDA regulations were being
compromised.
The common-law tort of retaliatory discharge “is a narrow exception to the at-will
employment doctrine and can be established if a plaintiff shows that (1) she has been discharged;
(2) in retaliation for her activities; and (3) the discharge violates a clear mandate of public
policy.” Thomas v. Guardsmark, LLC, 487 F.3d 531, 535–536 (7th Cir. 2007). The termination
of an employee due to the employee's whistle-blowing activities violates public policy for
purposes of establishing a retaliatory-discharge claim. Palmateer v. International Harvester Co.,
85 Ill.2d 124, 52 Ill.Dec. 13, 421 N.E.2d 876 (Ill.S.Ct.1981). In the instant case, the claims
overlap, because plaintiff alleges retaliation in the form of a discharge and the disclosure of
information to the government.
Regarding the IWA claim, the parties do not dispute that plaintiff made a disclosure to a
government entity, or that the disclosure involved a potential violation of federal regulations.
The parties disagree as to whether plaintiff’s termination was retaliatory. Whether the
termination was in response to plaintiff’s various disclosures or due to his job performance is
central to both counts.
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Plaintiff asserts that defendant had knowledge of his whistleblowing activities and
terminated him within days of his protected disclosures. He argues that the suspicious timing,
coupled with other circumstantial evidence, raises an inference of a causal link.
Defendant claims that the decision to terminate plaintiff was made by Grant on October
27, 2010, before plaintiff made the calls in question to the FDA and the customer, and was
therefore not retaliatory. Defendant asserts that this decision was based on plaintiff’s alleged
uncooperative behavior during the paint incident and that Grant communicated his decision to
the human resources department the next day. This decision is documented, according to
defendant, in a email sent by Steifel, to another human resources employee, Robert Sherwood,
on October 28, 2010, stating that Grant “would like to restructure the department and eliminate
[plaintiff’s] position.”2 Defendant buttresses this email with another email written by Grant on
November 1, 2010, to Stiefel documenting his version of the paint incident and plaintiff’s
alleged insubordination. Defendant asserts that these emails demonstrate definitively that the
termination decision was made prior to the protected action.
Stiefel’s email, however, falls short of incontrovertible evidence of a decision to
terminate plaintiff. Although the email confirms that Grant was not pleased with plaintiff’s
performance, the language in the email about eliminating plaintiff’s position does not
demonstrate that the decision to terminate plaintiff because of poor performance had been made
on October 27, 2010. As plaintiff points out, and as defendant’s actions confirm, it is
defendant’s policy that all termination decisions must be approved by the human resources
manager. After October 28, 2010, Steifel initiated an investigation into the events surrounding
2
Defendant also relies on the affidavits of Stiefel and Grant to support this point.
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the paint incident, which likewise indicates that a final decision to terminate plaintiff had not
been made and approval from human resources was pending. Although defendant cites Clark
Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 272 (2001), for the proposition that “proceeding along
lines previously contemplated, though not yet definitively determined, is no evidence whatever
of causality,” Stiefel’s email does not state that Grant wished to terminate plaintiff for
performance reasons, but rather obliquely talks of “restructuring the department.” Grant’s
supplemental email of November 1, 2012, discussing plaintiff’s alleged poor performance was
written on the same date that plaintiff engaged in whistleblowing activities. Although a trier of
fact might determine that Grant’s motivation on October 27, 2010, was the same as on
November 1, 2010, the record does not incontrovertibly support this conclusion. Defendant’s
assertion that summary judgment should be granted on the basis that Grant unquestionably
decided to terminate plaintiff before he engaged in protected activity therefore fails.
Plaintiff, however, must do more than simply point to the suspicious timing of his
termination to infer a causal link. Culver v. Gorman & Co., 416 F.3d 540, 546 (7th Cir. 2005).
Regarding Count II, retaliatory discrimination, plaintiff provides circumstantial evidence to
support the claim that Grant and defendant knew that plaintiff had placed phone calls to a
customer company prior to his termination. Grant admits that he became aware on November 1,
2010, that an anonymous Itasca employee had contacted the customer company about the
peeling paint and potential contamination and had attached photographs. There were a limited
number of employees involved with the paint incident, and Grant had tasked plaintiff with taking
photos of the peeling paint. In plaintiff’s email to Grant’s supervisor on November 1, 2010,
plaintiff offered to supply that supervisor with photographs. Defendant therefore had reason to
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suspect that the anonymous employee who had contacted the consumer could be plaintiff.A trier
of fact, therefore, could reasonably believe that Grant and the human resources department knew
about plaintiff’s protected activities and that the whistleblowing calls contributed to plaintiff’s
termination. Regardless of whether Grant began an inquiry into plaintiff’s performance prior to
the placement of the phone calls, for Count II there is a genuine question of material fact as to
whether the final decision for plaintiff’s termination was motivated entirely or in part by
retaliatory animus. The court therefore denies defendant’s motion for summary judgment on
Count II.
Regarding Count I, violation of the IWA, plaintiff has not provided any additional
circumstantial evidence to buttress the suspicious timing of his termination. To prove a violation
of the IWA, plaintiff must show that the defendant retaliated for a disclosure made to the
government (740 ILCS 174/15) or for refusing to participate in an activity that would violate
state or federal laws or regulations (740 ILCS 174/20). Plaintiff does not allege that defendant
knew he had contacted the FDA prior to his termination, nor does he provide any evidence to
suggest such knowledge could be inferred. Plaintiff states that he did inform a coworker that he
had called the FDA, but admits in his response to defendant’s Rule 56 statement that he has no
knowledge that the coworker informed defendant that plaintiff had called the FDA. Thus,
although plaintiff has submitted evidence that defendant might have had knowledge of his call to
the customer, he does not offer any circumstantial evidence that defendant knew of his call to the
FDA. Plaintiff therefore has not provided circumstantial evidence in support of a violation of
740 ILCS 174/15, the disclosure provision.
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Plaintiff claims that defendant was also aware of his refusal to participate in the
continued running of production while the paint incident was ongoing and retaliated on that
basis. He alleges that he voiced his disapproval multiple times, beginning on the morning of
October 27, 2010, when he advised Grant against the “wet washing” technique and advocated for
stripping the plant surface. Plaintiff does not allege that he refused to participate in the wet
washing, refused to hang plastic sheeting to allow production to continue, or refused to follow
through on any of the orders given to him by Grant to halt production. Plaintiff argues that his
calls to the customer, call to the FDA, and email to Grant’s supervisor embody his “refusal” to
participate in production on October 30, 2010.3 Yet these activities do not fall within the scope
of “refusal” as contemplated by this section of the IWA. The idea that plaintiff manifested his
refusal by calling the FDA does fall within the protection offered by 740 ILCS 174/20; such
actions are explicitly covered by the disclosure provision of the Act, 740 ILCS 174/15.
Manifesting refusal by whistleblowing and calling the customer is not covered by this
section, however, because there is no actual refusal to participate in a task, but rather the
disclosure of a potential infraction. Sardiga v. N. Trust Co., 409 Ill. App. 3d 56, 62, 948 N.E.2d
652, 657 (2011) (explaining that, to claim protection under the statute, “the plaintiff must
actually refuse to participate”); see also Robinson v. Alter Barge Line, Inc., 513 F.3d 668 (7th
Cir. 2008). Plaintiff’s actions in writing an email to Grant’s supervisor likewise do not
constitute refusal to participate; “‘refusing’ means refusing; it does not mean ‘complaining’ or
‘questioning.’” Id. Plaintiff’s affidavit confirms that the email stated plaintiff’s concerns, his
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Since production was not run on October 27 and 28, and plaintiff did not work on
October 29, plaintiff could not have “refused” to participate in production on those dates.
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opinion that production should be shut down, and plaintiff’s sentiment that other employees were
not paying attention to his advice and experience. No refusal to participate in production is
voiced, only a complaint as to how the situation was being handled. See id. (“When an employee
complains to a supervisor, as opposed to a government agency, and is terminated as a result, a
common law claim of retaliatory discharge arises, with which the Act does not interfere.”)
(citing Callahan v. Edgewater Care & Rehabilitation Center, Inc., 374 Ill.App.3d 630, 635, 313
Ill.Dec. 568 (2007)). Because plaintiff did not actually abstain from any course of conduct or
voice a refusal to do any task, he cannot claim the protection of 740 ILCS 174/20. Robinson, 513
F.3d at 670. The court therefore grants defendant’s motion for summary judgment on Count I,
violation of the IWA.
CONCLUSION
For the reasons described above, the court grants defendant’s motion for summary
judgment on Count I and denies defendant’s motion for summary judgment on Count II.
ENTER:
March 13, 2013
__________________________________________
Robert W. Gettleman
United States District Judge
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