CHICAGO (CN) - A flavor factory worker who was fired after blowing the whistle on paint peels in food blenders can advance retaliation claims, a federal judge ruled.
Tim Pignato worked for Givaudan Flavors for 10 years, most recently at a production facility in Itasca, Ill., as a maintenance supervisor.
In October 2010, Givaudan hired a contractor to paint the Itasca facility, but the new ceiling paint began to chip almost immediately, failing into the blenders used to make food products.
Plant manager Tom Grant ordered a production halt, a "wet-washing" of the facility and told Pignato to hang plastic sheeting all over the production hall to prevent the peeling paint from getting into the blenders.
Pignato said he hung the plastic sheeting but realized that the steam from the "wet-washing" would cause more paint to flake. He allegedly advised Grant to shut down production and strip the ceiling of paint, but Grant refused to do so.
After returning to work several days later, Pignato claimed to have found paint chips throughout the facility, yet his bosses allegedly refused to shut down production.
Pignato then called the Food and Drug Administration and the client Givaudan supplied with products, informing them of the possible contamination.
Days later, Pignato was fired. He later sued for retaliatory discharge and a violation of the Illinois Whistleblower Act, but Givaudan moved for summary judgment.
U.S. District Judge Robert Gettleman ruled Wednesday that the retaliation claim alone can proceed.
"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," Gettleman wrote.
"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," he added. "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 Illinois Whistleblower Act does not apply, however, because it covers only a disclosure to the government or a refusal to participate in an activity that would violate the law.
When it fired Pignato, Givaudan was not aware that he had contacted the FDA, only its customer.
Pignato "did not actually abstain from any course of conduct or voice a refusal to do any task," the ruling states."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," Gettleman wrote. "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."'