Fourth Circuit Limits the “Intervening-Event” Defense in FSMA Whistle-blower Litigation

Introduction

In Wilbert Finley v. Kraft Heinz Inc., the United States Court of Appeals for the Fourth Circuit vacated a district court’s summary judgment that had dismissed Finley’s Food Safety Modernization Act (FSMA) whistle-blower claim. The pivotal question was whether an employer can cut off (“sever”) the causal chain between an employee’s protected food-safety complaints and his subsequent termination by pointing to an alleged “legitimate intervening event.” Judge Pamela Harris, writing for a unanimous panel, held that an intervening investigation—here, an HR inquiry two days before termination—does not automatically defeat a whistle-blower’s showing of “contributing-factor” causation. This opinion tightens the availability of the intervening-event defense and clarifies how the FSMA’s generous causation standard differs from traditional but-for retaliation analysis.

Summary of the Judgment

• The district court granted summary judgment to Kraft Heinz, reasoning that Finley’s alleged dishonesty during a March 24 HR investigation was an intervening event that wholly explained his March 26 termination.
• The Fourth Circuit reversed, holding:

• Courts must evaluate all the evidence—including temporal proximity and comparator treatment—when deciding whether protected activity “tended to affect in any way” the adverse action.
• An intervening event does not mechanically erase an inference of causation arising from close timing.
• Comparator evidence and inconsistent rationales created genuine disputes of material fact that a jury—not a judge—must resolve.
• The district court further erred by importing a but-for mindset inconsistent with the FSMA’s “contributing-factor” framework, recently reaffirmed by the Supreme Court in Murray v. UBS Securities.

The case was therefore vacated and remanded for trial.

Analysis

1. Precedents Cited and Their Influence

• Feldman v. Law Enforcement Associates, 752 F.3d 339 (4th Cir. 2014)
  • Provided the “intervening-event” concept.
  • The district court treated Feldman as dispositive, but the panel distinguished it: in Feldman there was no temporal proximity and many months’ silence, whereas Finley complained up to 14 days before termination.
• Murray v. UBS Securities, 601 U.S. 23 (2024)
  • Clarified that “contributing-factor” causation requires no proof of retaliatory animus.
  • The Fourth Circuit noted the district court’s inadvertent drift toward but-for principles was incompatible with Murray.
• Barbour v. Garland, 105 F.4th 579 (4th Cir. 2024) & Mikhaylov v. DHS, 62 F.4th 862 (4th Cir. 2023)
  • Reinforced that close timing alone can prove causation in whistle-blower regimes.
• Other supporting authorities include Ray v. Roane (summary-judgment standards), Haynes v. Waste Connections (comparator admissibility), and classic summary-judgment beacon Celotex v. Catrett.

2. Court’s Legal Reasoning

1. Correct Standard of Proof
   The FSMA borrows the AIR-21 “contributing-factor” test: the employee must show by a preponderance that protected conduct “tended to affect” the adverse action; the employer then must prove by clear and convincing evidence it would have taken the same action anyway. The district court’s stray references to but-for causation risked raising Finley’s burden.
2. Temporal Proximity + Intervening Event = Jury Question
   An intervening investigation may weaken but not the causal inference. When (a) timing is tight, (b) comparator discipline is inconsistent, and (c) the employer’s story shifts, a jury could still find retaliation.
3. Comparator Evidence
   Finley’s subordinate, Clark, escaped sanction though he orchestrated the bungled termination. Whether Clark is a true comparator involves disputed facts (e.g., chain-of-command authority), precluding summary judgment.
4. Shifting Rationales
   HR first called the issue “dishonesty,” later “inconsistent memory” or “lack of integrity.” Such semantic drift, coupled with the failure to discipline others, could let a jury regard the HR inquiry as pretextual.

3. Impact of the Judgment

• For Whistle-blowers – Strengthens employees’ ability to survive summary judgment despite post-complaint investigations; encourages earlier settlement or trial.
• For Employers – Requires careful, documented, and even-handed investigations. Quick disciplinary decisions made immediately after whistle-blower activity will face heavier scrutiny at trial.
• For the Courts – Provides a road-map: (i) apply the Murray / AIR-21 two-step; (ii) treat intervening events as one evidentiary piece, not a trump card; (iii) leave credibility disputes to juries.
• Substantive Law – Although no new statutory language is crafted, the opinion effectively curtails expansive use of Feldman as a summary-judgment sword in FSMA and other AIR-21-style statutes.

Complex Concepts Simplified

• Contributing-Factor Causation – A light burden; the protected act need only play some role, large or small, in the employer’s decision.
• Clear and Convincing Evidence – A mid-level proof standard; more than “preponderance,” less than “beyond a reasonable doubt.” Requires high probability, not mere possibility.
• Intervening Event – Something occurring between the protected activity and the adverse action that arguably supplies an alternative explanation (e.g., misconduct discovered later).
• Temporal Proximity – How close in time the adverse action follows the protected activity; the shorter the gap, the easier it is to infer causation.
• Comparator Analysis – Comparing how similarly-situated employees who did not engage in protected activity were treated, to spot discriminatory disparities.

Conclusion

Finley v. Kraft Heinz re-centers the FSMA causation inquiry on the statute’s text and purpose: encouraging disclosure of threats to the food supply. The Fourth Circuit underscores that employers cannot escape trial merely by pointing to a hastily-assembled intervening investigation. Courts must consider the totality of circumstances—including timing, consistency, and comparators—through a lens favorable to the non-movant at summary judgment. Practitioners should view the decision as a significant precedent limiting over-reliance on Feldman and reinforcing Murray’s expansive protection for whistle-blowers whose warnings safeguard public health.