Chase v. Brothers

Filing 10

ORDER denying 6 Motion to Dismiss. Signed by Hon. Michael A. Telesca on 02/27/2014. (BMB)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
COLIN CHASE,
Plaintiff,

13-CV-6297T
DECISION
and ORDER

v.
BROTHERS INTERNATIONAL FOOD CORPORATION,
Defendant.
________________________________________
INTRODUCTION
Plaintiff

Colin

Chase

(“Chase”),

a

former

employee

of

defendant Brothers International Food Corporation (“Brothers”), an
importer and distributor of packaged foods, brings this action
pursuant to the employee protection provision of the Food Safety
Modernization Act, (“FSMA”) (codified at 21 U.S.C. § 399d) claiming
that

he

was

unlawfully

terminated

from

his

employment

in

retaliation for raising concerns over the safety of food which
Brothers was selling to customers.

Specifically, plaintiff, who

was the director of defendant’s internet sales, alleges that after
he raised concerns about the defendant allegedly altering the “sell
by” dates of certain potato chips being sold by the defendant, and
after

raising

concerns

about

the

potential

for

bacterial

contamination of partially re-hydrated apple crisps being sold by
Brothers, the defendant attempted to force him to sign an agreement
preventing him from disclosing his concerns outside the company,
and then fired him when he refused to sign the agreement.

Defendant denies plaintiff’s allegations and moves pursuant to
Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss
plaintiff’s Complaint for failure to state a claim.

Specifically,

Brothers contends that because Chase did not engage in protected
activity under the FSMA, he cannot establish that he was fired as
a result of engaging in protected activity.

In support of this

argument, Brothers contends that because Chase could not have
reasonably believed that Brothers was violating the FSMA by rehydrating apple crisps or re-dating expired potato chips, he can
not state a claim for retaliation for having complained of such
acts.

Chase contends that he did have an objectively reasonable

good-faith belief that Brothers was in violation of the FSMA, and
therefore, he has stated a valid cause of action under that
statute.
For the reasons set forth below, I find that the issue of
whether or not the plaintiff held a reasonable belief that the
defendant was violating the FSMA can not be determined from the
pleadings,

and

therefore,

defendant’s

motion

to

dismiss

the

Complaint for failure to state a claim must be denied.

BACKGROUND
According

to

the

Complaint,

plaintiff

Colin

Chase

began

working for the defendant Brothers International Food Corporation
in July, 2010 as the director of e-commerce.

In April, 2012, Chase

allegedly alerted a manager at Brothers, and a co-CEO of Brothers,
that expired potato chips were being sold online by Brothers.
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Although plaintiff claims that the chips were “expired,” defendant
contends that the chips had not in fact expired, but instead had
passed their “best by” date. Chase alleges that he was told by coCEO Travis Betters (“Betters”) to halt sales of the chips until
stickers with new dates could be placed over the expired dates.
Chase contends that he was told by Betters to explain that the
chips had originally been dated for sale in Europe if anyone asked
why the dates had been changed.

According to Chase, Brothers

routinely sold expired products, and routinely altered the printed
expiration dates on products.
Thereafter, Chase allegedly reported to Betters that a batch
of Fuji Apple Fruit Crisps that were being sold by Brothers had
become soggy. According to the Complaint, Chase was concerned that
the soggy crisps might be subject to an increased risk of bacterial
contamination.

Betters allegedly told Chase to continue to sell

the crisps, and to give discount coupons to any customers who
complained about the products.
Following these incidents in which Chase raised concerns about
Brothers’ practice of selling expired products or products which
may have been compromised in terms of their quality, Chase was
called into a meeting with Matt and Travis Betters, the co-CEO’s of
the Company, and was asked to “prove his loyalty” to the Company by
signing a non-disclosure/non-competition agreement, pursuant to
which Chase would not be allowed to discuss his concerns about
Brothers’

practices

with

anyone

outside

of

the

Company.

Plaintiff’s request for additional time to review the agreement
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with an attorney was denied, following which Brothers fired him for
his refusal to sign the agreement.
civil

action

in

this

Court

Thereafter, Brothers filed a

accusing

Chase

of,

inter

alia,

misappropriating confidential documents and information, including
trade secrets. The action was voluntarily withdrawn by Brothers on
September 18, 2013, and according to the Complaint, Brothers has
brought an action against Chase in New York State Supreme Court.
DISCUSSION
I.

Defendant’s Motion to Dismiss

In reviewing a motion to dismiss pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure, the Court must “accept...all
factual allegations in the complaint and draw...all reasonable
inferences in the plaintiff’s favor.” See Ruotolo v. City of New
York, 514 F.3d 184, 188 (2d Cir.2008) (internal quotation marks
omitted). In order to withstand dismissal, the complaint must plead
“enough facts to state a claim to relief that is plausible on its
face.” See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct.
1955, 1974 (2007) (disavowing the oft-quoted statement from Conley
v. Gibson, 355 U.S. 41 (1957), that “a complaint should not be
dismissed for failure to state a claim unless it appears beyond
doubt that the plaintiff can prove no set of facts in support of
his claim which would entitle him to relief”).
“While a complaint attacked by a Rule 12(b)(6) motion to
dismiss does not need detailed factual allegations, a plaintiff’s
obligation to provide the grounds of his entitlement to relief
requires

more

than

labels

and

conclusions,

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and

a

formulaic

recitation of the elements of a cause of action will not do.” See
id.

at

1965

(internal

quotation

marks

omitted).

Moreover,

conclusory allegations are not entitled to any assumption of truth,
and therefore, will not support a finding that the plaintiff has
stated a valid claim.

Hayden v. Patterson, 594 F.3d 150, 161 (2nd

Circ., 2010). Thus, “at a bare minimum, the operative standard
requires the ‘plaintiff [to] provide the grounds upon which his
claim rests through factual allegations sufficient to raise a right
to relief above the speculative level.’” See Goldstein v. Pataki,
516 F.3d 50, 56-57 (2d Cir.2008) (quoting Twombly, 127 S.Ct. at
1974).
II.

Plaintiff Has Stated a Prima Facie Claim of Retaliation
Under the FSMA.

A.

The Standard for Stating a Prima Facie Case of
Retaliation under the FSMA.

Chase alleges that he was retaliated against in violation of
the FSMA for raising concerns about food safety to his bosses at
Brothers.

Specifically,

he

claims

that

after

he

questioned

Brothers’ alleged practice of re-dating expired food items, and
selling crisps that he believed were compromised in quality, he was
forced to sign a non-disclosure agreement, and fired when he
refused to sign such an agreement.
The FSMA provides in relevant part that:
No
entity
engaged
in
the
manufacture,
processing ,
packing,
transporting,
distribution,
reception,
holding,
or
importation of food may discharge an employee
or otherwise discriminate against an employee
with
respect
to
compensation,
terms,
conditions,
or
privileges
of employment
because
the
employee,
whether
at
the
Page -5-

employee's initiative or in the
course of the employee's duties ...

ordinary

(1) provided, caused to be provided, or is
about to provide or cause to be provided to
the employer, the Federal Government, or the
attorney general of a State information
relating to any violation of, or any act or
omission the employee reasonably believes to
be a violation of any provision of this
chapter or any order, rule, regulation,
standard, or ban under this chapter, or any
order, rule, regulation, standard, or ban
under this chapter;
...
(4) objected to, or refused to participate in,
any activity, policy, practice, or assigned
task that the employee (or other such person)
reasonably believed to be in violation of any
provision of this chapter, or any order, rule,
regulation, standard, or ban under this
chapter.
21 U.S.C.A. § 399d(a).

Although there are no reported cases

discussing a cause of action for retaliation under the FSMA, the
standard for stating a cause of action for retaliation under the
FSMA can be formulated from the language of the statute combined
with the well-known standard for stating a claim of retaliation
under other laws such as the anti-discrimination provisions of
Title VII of the Civil Rights Act of 1964, the Americans with
Disabilities Act, and the Age Discrimination in Employment Act.
Generally, under those statutes, to state a claim for retaliation,
a plaintiff must establish: (1) participation in a protected
activity

known

to

the

defendant;

(2)

an

employment

action

disadvantaging the plaintiff or action that would dissuade a
reasonable

worker

from

making

or

supporting

a

charge

of

discrimination; and (3) a causal connection between the protected
Page -6-

activity and adverse action.

Burlington Northern & Santa Fe

Railway Co. V. White, 548 U.S. 53, 68 (2006); Holt v. KMIContinental, 95 F.3d 123, 130 (2d Cir. 1996), cert. denied, 1997 WL
71191 (May 19, 1997); Tomka v. Seiler Corp., 66 F.3d 1295, 1308
(2nd Cir. 1995) (citations omitted).
This standard for stating a claim of retaliation under antidiscrimination laws can largely be adopted for claims arising under
the FSMA, with the modification that the “protected activity” set
forth in the standard for stating a prima facie claim under the
FSMA refers to activity that is explicitly protected under the FSMA
as set forth in 21 U.S.C. § 399(d).

Specifically, protected

activity under the FSMA includes, but is not limited to, providing
information

to

an

employer

about

conduct

that

the

employee

“reasonably believes to be a violation of any provision” of the
FSMA, or objecting to or failing to participate in any conduct that
the employee “reasonably believed” was in violation of the FSMA.
21 U.S.C. § 399d(a).
retaliation

under

Accordingly, I find that to state a claim for
the

FSMA,

a

plaintiff

must

establish

(1)

participation in a protected activity under the FSMA known to the
defendant; (2) an employment action disadvantaging the plaintiff or
action that would dissuade a reasonable worker from exercising
protected rights under the FSMA, and (3) a causal connection
between the protected activity and adverse action.
The determination of whether or not an employee holds a
“reasonable belief” as to whether or not an employer’s conduct is
prohibited by law is a question of fact that is to be determined by
Page -7-

the trier of fact based on the “totality of the circumstances.”
Casalino v. New York State Catholic Health Plan, Inc., 2012 WL
1079943 (S.D.N.Y. Mar. 30, 2012)(“Whether Plaintiff's belief [that
employer was violating anti-discrimination laws] was objectively
reasonable ... is a decision for the trier-of-fact based on the
record in the case.”)(citing Thomas v. Westchester Cnty. Health
Care Corp., 232 F.Supp.2d 273, 279 (S.D.N.Y.2002); Kelly v. Howard
I. Shapiro & Associates Consulting Engineers, P.C., 716 F.3d 10,
14–15 (2d Cir.2013) (holding that in the Title VII context, “[t]he
reasonableness of the plaintiff's belief [as to whether defendant’s
conduct was unlawful] is to be assessed in light of the totality of
the circumstances.”). Although the determination of whether or not
an employee holds a reasonable belief as to the lawfulness

of an

employer’s conduct may be made by the court where there are no
issues of fact in dispute and no reasonable jury could determine
that the employee’s belief was reasonable, the finding as to the
reasonableness of an employee’s belief is typically an issue of
fact for the jury, and not an issue that can decided as a matter of
law.

See e.g.

Reed v. A.W. Lawrence & Co., 95 F.3d 1170, 1178 (2d

Cir.1996)(affirming jury's conclusion that plaintiff reasonably and
in good faith believed that she was the victim of a “hostile work
environment.”).
Whether or not an employer has actually violated the law at
issue is not a consideration in determining whether or not an
employee holds a reasonable belief that the law has been violated.
It is well settled that an employee’s mistaken belief that an
Page -8-

employer has violated a law may nevertheless be reasonable provided
that

the

totality

of

the

circumstances

establishes

that

a

reasonable employee considering the same facts could have concluded
that the employer had violated the law. Casalino, 2012 WL 1079943,
*11 (despite court’s finding that defendant’s conduct did not
violate Title VII, “the question on the retaliation claim is
whether Plaintiff possessed a good faith, reasonable belief that it
did.”) (citing Martin v. State Univ. of N.Y., 704 F.Supp.2d 202,
228 (E.D.N.Y.2010)). As the Second Circuit Court of Appeals stated
in Reed, with respect to a retaliation claim filed in a Title VII
discrimination case, “an employee ‘need not establish that the
conduct [s]he opposed was in fact a violation of Title VII’ but
rather, only that she had a ‘good faith, reasonable belief’ that
the underlying employment practice was unlawful.

Reed, 95 F.3d at

1178 (quoting Manoharan v. Columbia Univ. Coll. of Physicians &
Surgeons, 842 F.2d 590, 593 (2d Cir. 1988)).
B.

Defendant has failed to establish that Plaintiff did not
hold a reasonable belief that Brothers’ practices
violated the FSMA.

Plaintiff contends that he has stated a prima facie case of
retaliation under the FSMA because he has alleged that he: (1)
engaged in the protected activity of complaining to management
regarding re-dating products and selling products which might be
subject to bacterial contamination; (2) was fired, and (3) was
fired as a direct response to his making complaints regarding
violations of the FSMA.

Page -9-

The defendant contends that Chase has failed to state a prima
facie case of discrimination because he has failed to establish
that

he

engaged

in

protected

activity

under

the

FSMA.

Specifically, defendant contends that selling food products after
an expiration date is not a violation of the FSMA, and Chase could
not have reasonably believed that selling food products after an
expiration date violated the FSMA.

Defendant argues that because

Chase could not have reasonably believed he was complaining about
a practice that violated the FSMA, his conduct was not protected
under the FSMA, and therefore, he has failed to establish that he
engaged in protected activity.

With respect to Chase’s complaints

that apple crisps being sold by Brothers could be subject to
bacterial contamination, defendant alleges that because Chase did
not have evidence of any increased susceptibility to bacterial
contamination, and does not have any independent knowledge of food
safety, he could not have had a reasonable, good faith belief that
the selling of the apple crisps in question would violate the FSMA.
Brothers contends that because there was no reasonable basis for
believing that the selling of the apple crisps would violate the
FSMA, any complaints regarding the selling of such products are not
protected under the FSMA, and therefore plaintiff has failed to
establish that he engaged in protected activity under the FSMA with
respect to his complaints regarding the apple crisps.
As stated above, it is not necessary for a plaintiff claiming
retaliation to establish that the conduct he complained of was
actually unlawful.

Reed, 95 F.3d at 1178.
Page -10-

Accordingly, evidence

that the practice objected to by the plaintiff is in fact lawful
will not defeat a plaintiff’s claim of retaliation.
defendant

must

establish

that

the

plaintiff

did

Rather, a
not

have

a

reasonable belief that the practice he was opposing was unlawful.
Such a determination can only be made upon a review of the totality
of the circumstances.
In the instant case, the parties have engaged in no discovery,
and there is no record regarding the circumstances under which
plaintiff came to his conclusion that Brothers’ practices violated
the FSMA.

Because there is no factual record upon which a trier of

fact could make any determination as to the reasonableness of
plaintiff’s beliefs, the court can not hold, as a matter of law
based

on

no

factual

foundation,

that

plaintiff’s

belief

was

unreasonable.
Brothers contends that plaintiff’s belief was unreasonable as
a matter of law because it is not illegal under the FSMA to redate
food.

This argument, however, ignores the fact that a plaintiff

may have a reasonable, though mistaken belief, that certain conduct
violates the FSMA.

Defendant next argues that plaintiff’s belief

was unreasonable because it is general knowledge that redating food
is not illegal, and because there is a single reported Seventh
Circuit Court of Appeals case in which a criminal defendant’s
conviction for redating food was overturned. U.S. v Farinella, 558
F.3d

695,

698

(7th

Cir.,

2009).

Brothers

asserts

that

the

Farinella case, in which the Seventh Circuit Court of Appeals
overturned a criminal conviction for introducing into interstate
Page -11-

commerce misbranded food with intent to defraud or mislead (in
violation of 21 U.S.C. § § 331(a), 333(a)(2)) stands for the
proposition that it is not illegal to redate food products, and
that a reasonable employee would have known that redating of food
is not unlawful.
The Farinella case, however, does not serve as a general
warning to all food industry employees across the country informing
them that redating food products is not illegal. Rather, the court
in Farinella, after reviewing the federal law defining “misbranded
food” (21 U.S.C. § 343) affirmed that misbranding of food can be
illegal if it can be proven to be “false or misleading in any
particular.”

Farinella at 558 F.3d at 698.

Based on this

construction of the law, the Farinella court simply held that the
proof at the defendant’s trial failed to establish that consumers
considered redating food to be misleading.

Because no such proof

had been admitted at trial, the criminal defendant’s conviction
could not stand.

Such a holding does not establish, as defendant

argues, that redating of food at any time by the seller of that
food is lawful.
Next, Brothers contends that Chase has failed to establish
that he reasonably believed that Brothers was violating the FSMA
because he has failed to identify the particular provision of the
FSMA that was allegedly violated. This argument fails both because
there is no requirement that a plaintiff identify the specific
provision of a law he or she believes is violated, and also because
in a case where a plaintiff has a mistaken belief that a law is
Page -12-

violated, that plaintiff would be unable as a matter of law to
identify the provision allegedly violated.
Defendant further argues that a reasonable person would have
investigated whether or not selling food after a “best by” date
constitutes

a

violation

of

the

FSMA,

and

that

had plaintiff

investigated, he would have determined that the use of “best by”
dates is discretionary within the food industry, and food vendors
are allowed to sell food past an “expiration” or “best by” date.
This argument, however, ignores plaintiff’s allegations that he was
advised to actually change dates on food items, and then lie about
the reason for the date change.

Accordingly, plaintiff did not

simply complain about selling outdated items, but also complained
that the dates were being altered, and the explanation offered for
changing the dates was false.

Whether or not it was reasonable for

the plaintiff to believe that such conduct violated the FSMA cannot
be determined on this record, which is completely devoid of facts
regarding the circumstances that led plaintiff to complain of the
defendant’s practices.
Brothers claims that because Chase was not responsible for
food safety at the company, and had no independent basis for
knowing or determining whether or not the food products sold by
Brothers were safe for consumption, he was unqualified to complain
about

food

safety

under

the

FSMA.

There

is,

however,

no

requirement under the FSMA that complaints about food safety
practices may only be made by certain classes of employees, or only
employees with certain credentials.
Page -13-

Defendant further argues that because no consumers complained
of the practice of selling products after the expiration of the
“best

by”

dates

listed

on

them,

plaintiff

had

no

basis

for

complaining of the practice. Again, however, there is no provision
in the FSMA that prohibits an employee from complaining of food
safety issues where there have been no consumer complaints.
Finally, Brothers contends that there is no allegation or
proof that the apple crisps it sold were unsafe, and therefore
Chase could not have had a good faith, reasonable belief that
Brothers was violating the FSMA by selling such products.

There

is, however, no provision in the FSMA requiring that food products
sold be unsafe as a condition for having a reasonable belief that
a food seller is violating the FSMA.
CONCLUSION
For the reasons set forth above, I find that defendant has
failed to establish as a matter of law that the plaintiff could not
have held a reasonable good faith belief that Brothers’ conduct
constituted a violation of the FSMA.

Accordingly, I find that

Chase has stated a prima facie case of retaliation, and I deny
defendant’s motion to dismiss.

ALL OF THE ABOVE IS SO ORDERED.
S/ Michael A. Telesca
MICHAEL A. TELESCA
United States District Judge
Dated:

Rochester, New York
February 27, 2014
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