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Chance v. Kraft Heinz Foods Co.

Superior Court of Delaware, Kent

December 17, 2018

JEREMIAH CHANCE, Plaintiff,
v.
KRAFT HEINZ FOODS COMPANY, Defendant.

          Submitted: October 24, 2018

         Upon Defendant's Motion to Dismiss DENIED in Part, GRANTED in Part

          Patrick C. Gallagher, Esquire, Jacobs & Crumplar, P. A., Wilmington, Delaware, Attorney for the Plaintiff.

          Jennifer C. Jauffret, Esquire, and Lori A. Brewington, Esquire, Richards, Layton & Finger, P.A., Wilmington, Delaware, Attorneys for the Defendant.

          Thomas R. Chiavetta, Esquire (pro hac vice), Jones Day, Washington, D.C.; and Benjamin M. Gavel, Esquire (pro hac vice), Jones Day, Cleveland, Ohio, Of Counsel for the Defendant.

          OPINION AND ORDER

          Noel Eason Primos, Judge

         Before the Court is the motion to dismiss of Defendant Kraft Heinz Foods Company (hereinafter "Kraft Heinz") and the response of Plaintiff Jeremiah Chance (hereinafter "Plaintiff). Plaintiff filed his initial complaint pro se on January 30, 2018, regarding his termination of employment from Kraft Heinz. Plaintiff alleged in his original Complaint that he was terminated after testing positive for marijuana in violation of Delaware's Medical Marijuana Act ("DMMA"), [1] and in retaliation for his complaints under the federal Occupational Safety and Health Act ("OSHA").[2] Plaintiff subsequently obtained counsel and filed an Amended Complaint on March 26, 2018, which asserted four Counts arising from his termination: (I) violation of the DMMA; (II) violations of the Americans with Disabilities Act ("ADA"), [3] and the Delaware's Persons with Disabilities Employment Protections Act ("DEPA");[4] (III) violation of Delaware's Whistleblowers' Protection Act ("DWPA");[5] and (IV) common law wrongful termination. Kraft Heinz's motion requests dismissal of all Counts asserted in the Amended Complaint. For the reasons set forth below, Defendant Kraft Heinz's motion is DENIED in part and GRANTED in part.

         I. Factual Background and Procedural History

         The facts recited are as alleged in Plaintiffs' Amended Complaint.[6] Plaintiff was employed by Kraft Heinz at its facility in Dover, Delaware, from May 2009 to August 2016. This facility contains railroad tracks on its premises. Plaintiff started out as a warehouse employee and was eventually promoted to Yard Equipment Operator. In his Amended Complaint, Plaintiff alleges that he suffers from a number of medical ailments of which Kraft Heinz was aware, including various back problems. Plaintiff obtained a medical marijuana card in 2016 for these medical issues and took leave on several occasions through the Family and Medical Leave Act ("FMLA") and by utilizing short-term disability benefits.

         On August 9, 2016, Plaintiff submitted an incident report to Kraft Heinz management regarding unsafe conditions of the railroad ties in the railroad yard. The following day, Plaintiff showed Paul Diebel, a maintenance supervisor employed by Kraft Heinz, and two bulk operators the unsafe conditions of the railroad ties as well as other defects. Plaintiff also met with Michael Doughty, the Warehouse Supervisor, and voiced his concern that the unsafe conditions of the railroad tracks violated the United Facilities Criteria (the "UFC"). Doughty responded that Kraft Heinz was not obligated to comply with the UFC. Plaintiff had relied upon the UFC, however, because he had previously requested from Kraft Heinz the standards that applied to the rails but had never been provided them.

         Later that day, Plaintiff was operating a "shuttle wagon" on the railroad tracks when it derailed. This prompted Kraft Heinz management to request that Plaintiff undergo a drug test. The test was inconclusive, and Kraft Heinz requested that he submit to another test. On August 12, 2016, Plaintiff underwent a second drug test, and on August 16, 2016 a Medical Review Officer ("MRO") informed Plaintiff that he had tested positive for marijuana. Plaintiff informed the MRO that he possessed a medical marijuana card and provided it to the MRO. On August 25 or 26, 2016, Kraft Heinz terminated Plaintiff for failing the drug test.

         Plaintiff subsequently filed a Charge for Discrimination with the Delaware Department of Labor Office of Anti-Discrimination ("DDOL") on October 27, 2016, which was "dual filed" with the Federal Equal Employment Opportunity Commission ("EEOC"). The DDOL issued a right-to-sue letter on September 29, 2017, and the EEOC issued Plaintiff a right-to-sue letter on November 1, 2017. Plaintiff filed his original Complaint within the requisite 90 days on January 30, 2018, and subsequently filed an Amended Complaint on March 26, 2018.

         II. Standard of Review

         On a motion to dismiss, the moving party bears the burden of demonstrating that "under no set of facts which could be proven in support of its [complaint] would the [plaintiff] be entitled to relief."[7] Upon this Court's review of a motion to dismiss, "(i) all well-pleaded factual allegations are accepted as true; (ii) even vague allegations are well-pleaded if they give the opposing party notice of the claim; (iii) the Court must draw all reasonable inferences in favor of the non-moving party; and (iv) dismissal is inappropriate unless the plaintiff would not be entitled to recover under any reasonably conceivable set of circumstances susceptible of proof."[8]

         III. Discussion A. Count I: Plaintiff s Claims Under the DMMA.

         Kraft Heinz argues that federal law preempts the DMMA to the extent that it authorizes the use of marijuana and requires employers to accommodate that use. Kraft Heinz cites to the Supremacy Clause[9] and a handful of cases in other jurisdictions for the proposition that the Controlled Substances Act ("CSA"), [10] under a conflict preemption analysis, [11] preempts the DMMA and state medical marijuana laws. Plaintiff, in response, argues that this analysis is overbroad and that the CSA does not preempt the specific employment discrimination provisions within the DMMA.

         At issue before this Court are two main inquiries: (1) whether the DMMA, and specifically its anti-discrimination provision, is in conflict with the CSA and is thus preempted; and (2) whether a private right of action to enforce its non-discrimination provision is implied in the DMMA.[12] Both of these queries appear to be issues of first impression in Delaware.

         1. Whether the DMMA is Preempted by the CSA.

         In considering whether the anti-discrimination provision of the DMMA is not preempted by the CSA, this Court finds persuasive the decision of the United States District Court for the District of Connecticut in Noffsinger v. SSC Niantic Operating Co., LLC, [13] and that of the Rhode Island Superior Court in Callaghan v. Darlington Fabrics Corp.[14] This Court further finds that the case law cited by Kraft Heinz is distinguishable from the case at hand.

         The CSA regulates the possession and use of certain drugs, including marijuana, and states that it is "...unlawful to manufacture, distribute, dispense, or possess any controlled substance except in a manner authorized by the CSA."[15] The CSA classifies marijuana as a Schedule I substance and does not currently allow any exceptions for medical use.[16] The DMMA, in contrast, expressly authorizes the distribution, possession, and use of marijuana for medical purposes.[17] Moreover, as mentioned supra, and unlike most other state medical marijuana statutes, the DMMA explicitly prohibits employers from disciplining employees who use marijuana for medical reasons, and who fail drug tests because of it:

[A]n employer may not discriminate against a person in hiring, termination, or any term or condition of employment...if the discrimination is based upon either of the following: a. The person's status as a cardholder; or b. A registered qualifying patient's positive drug test for marijuana.. .unless the patient used, possessed, or was impaired by marijuana on the premises of the place of employment or during the hours of employment.[18]

         At first glance, it appears that the two statutes are at odds. However, to find preemption in this case would represent an overbroad approach to that issue.[19] While the CSA classifies marijuana as a Schedule I substance and does not currently make exceptions for medical use, it does not make it illegal to employ someone who uses marijuana, nor does it purport to regulate employment matters within this context. In fact, the CSA itself explicitly confirms Congress's intent that the statute not preempt a state law "unless there is a positive conflict between that provision of this subchapter and that State law so that the two cannot consistently stand together."[20]

         Therefore, the Court finds that conflict preemption does not apply because the anti-discrimination provisions of the DMMA do not pose an obstacle to the objectives of Congress nor do they render compliance with both federal and state law impossible. The DMMA does not require employers to participate in an illegal activity (the unauthorized manufacture, dissemination, dispensing or possession of controlled substances) but instead merely prohibits them from discriminating based upon medical marijuana use.

         Kraft Heinz cites to a number of cases in its opening and reply memoranda for the proposition that the CSA preempts anti-discrimination provisions of the state medical marijuana law and that employers are not required to accommodate employees' state-licensed marijuana use by continuing to employ them after learning of the use via employee disclosure or a failed drug test.[21] Indeed, very few medical marijuana statutes prohibit the discipline or discharge of an employee who uses medical marijuana outside of work and later tests positive on a drug test. Rather, most such statutes lack any clear statutory protections for medical marijuana users' employment, which has led to the dismissal of multiple claims of employees who were discharged based upon their medical marijuana use, even absent evidence that their use affected their work performance.[22] However, this Court finds the cases cited by Kraft Heinz distinguishable from this case because the statutory provisions at issue in those cases are not analogous to the anti-discrimination provision of the DMMA.[23]

         2. Whether a Private Right of Action is Implied in the DMMA.

         A private right of action may be implied if there is "strong evidence that the legislature intended to create it."[24] Delaware courts traditionally apply a three-factor implied private right of action analysis as first articulated by the U.S. Supreme Court in Cort v. Ash, [25] This test analyzes "(1) whether the plaintiff is a member of a class for whose especial benefit the statute was enacted; (2) whether there is any indication of legislative intent to grant or deny a private right of action; and (3) whether recognition of an implied private right of action would advance the statute's purpose."[26] This Court has held that "statutory intent is determinative in a private right of action analysis."[27]

         With regard to the first and third prongs of Cort, this Court finds that these factors weigh in favor of Plaintiff. Section 49O5A prohibits an employer from discriminating "against a person in hiring, termination, or any term or condition of employment, or otherwise penaliz[ing] a person, if the discrimination is based upon either of the following: a. [t]he person's status as a cardholder; or b. [a] registered qualifying patient's positive drug test...."[28] In this case, Plaintiff, as a medical marijuana cardholder, was terminated after failing a drug test. Clearly, Plaintiff falls within the class of persons for whose especial benefit the statute was enacted, as Section 49O5A(a)(3) seeks to prohibit discrimination against medical marijuana patients.

         The third Cort prong examines whether recognition of an implied private right of action would advance the statute's purpose. Section 4901 A(g) provides that "[s]tate law should make a distinction between the medical and nonmedical uses of marijuana. Hence, the purpose of this chapter is to protect patients with debilitating medical conditions, as well as their physicians and providers, from arrest and prosecution, criminal and other penalties, ... ."[29] (emphasis added). The Court may reasonably infer that the purpose of the statute is to protect medical marijuana patients from discrimination based upon their status, and from being penalized based upon that discrimination, as with termination from employment. Thus, Plaintiff has met the third prong.

         The second Cort factor looks to whether there is any indication of legislative intent to grant or deny a private right of action. In this case, the analysis is complicated by the fact that there is no explicit statutory directive. Kraft Heinz fastens upon this point and asserts four main arguments in opposition to finding an implied private right of action: (1) had the legislature wanted to create a private right of action, it could have done so expressly; (2) the DMMA expressly creates a private right of action to enforce some of its provisions, but not its anti-discrimination provision; (3) the DMMA should not be construed liberally; and (4) the legislative history contains no indication of an intent to create an implied private right of action. Most, if not all, of these arguments were scrutinized and dismissed in the Callaghan case, which, as this Court has already noted, is germane to this discussion. This Court, likewise, does not find these arguments convincing.

         First, by way of context, it is important to remember that the Court's duty in interpreting a statute is to find legislative intent and to give effect to it.[30] The Court is required, under settled rules of construction, to read the statute as a whole and to harmonize its parts.[31] "If a literal interpretation leaves a result inconsistent with the general statutory intention, the literal interpretation must give way to the general intent."[32]

         Here, the purpose of Section 4901A is to protect individuals with debilitating medical conditions from arrest or prosecution, and from criminal or other penalties. The purpose of Section 49O5A is to prohibit employment-related discrimination based upon either status as a medical marijuana cardholder or a qualifying patient's positive drug test. It is a well-settled principle of statutory interpretation that an isolated portion of a statute should not be construed in a vacuum: rather, every word must be given meaning and must be considered in the context of the entire statute.[33]

         In the DMMA, no agency or commission has been tasked with enforcement of the anti-discrimination provision. Under Section 49O5A(a)(3), no remedy other than a private right of action is available to cardholders and qualifying marijuana patients terminated or discharged from employment for failing drug tests. The fact that an antidiscrimination provision was included in the DMMA demonstrates legislative intent to remedy the problem of discrimination based upon one's cardholder status. Therefore, this Court finds that the language of Section 49O5A(a)(3) creates an implied private right of action. Absent a finding of an implied private right of action, Section 49O5A would be devoid of any purpose within the broader context of the statute.[34]

         In Callaghan, the Superior Court of Rhode Island examined the Cort factors with regard to finding an implied private right of action under the anti-discrimination provisions of the Rhode Island Medical Marijuana Act.[35] Rhode Island's statute provides that "no.. .employer.. .may refuse to.. .employ.. .a person solely for his or her status as a cardholder."[36] The court deemed this "rights-creating language" and held that because there were no particular remedies established, the "only...sensible interpretation" of the anti-discrimination provisions of the Rhode Island statute was that there must be "an implied private right of action. Without one, [the provision].. .would be meaningless."[37]

         With regard to Kraft Heinz's first point that the legislature could have expressly created a private right of action if it had wanted to, the Court does not find this argument persuasive. While it is certainly true that the General Assembly has provided express private remedies in other employment statutes, the General Assembly is also presumed to know how the statute would be interpreted or construed by the courts. The court in Callaghan rejected a similar argument, stating that the Rhode Island General Assembly is presumed to possess knowledge regarding "the 'state of existing relevant law when it enacts or amends a statute.'"[38] Thus, the absence of an express right of action cannot be assumed to preclude an implied private right of action.[39] Here, there is no indication of legislative intent to deny a private cause of action, and the Court finds, as in Callaghan, that the Delaware General Assembly knew that the right could be implied. Moreover, this also answers Kraft Heinz's fourth argument: the absence of any legislative history on this issue does not prove that the General Assembly wished to preclude a private right of action.

         Kraft Heinz's second argument for not finding an implied private right of action is that the DMMA expressly creates a private right of action to enforce some of its provisions, such as Section 4924A, which authorizes "any citizen" to sue in state court if the Delaware Department of Labor does not comply with its statutory mandate to adopt regulations to implement the DMMA. Because there is no such language in the DMMA's anti-discrimination provision, Kraft Heinz asserts that the legislature did not intend for a private right of action for that provision. This argument, likewise, lacks merit.

         "[A] cause of action may be implied where a statute defines an unfair employment practice but does not provide an express method of redress."[40] In another employment case, Heller v. Dover Warehouse Market, Inc., [41] this Court found that an implied private right of action exists under a Delaware law prohibiting employers from requiring submission to polygraph testing. In that case, the plaintiff was an employee accused of theft.[42] Her employer forced her to take a polygraph test despite the statute's prohibition that "[n]o person... shall require... that any employee... take... a polygraph...as a condition of...continuation of employment."[43] This Court, in analyzing the statute, found that the provision of a criminal penalty in the statute did not exclude the possibility of a civil remedy.[44] The statute was found to have a dual purpose - - assuring that employees are not subjected to polygraph testing, and penalizing employers that require such testing.[45] The court concluded that the General Assembly must have intended a private right of action to accomplish that dual purpose, given that "[r]edress for damages is not assured unless a private right of action is implied under the statute."[46]

         Similarly, in Callaway v. N.B. Downing Co., [47] this Court found an implied private right of action when examining the state's minimum wage law. That statute made it illegal to pay less than the minimum wage and set criminal penalties for violations, but did not include any provisions regarding civil remedies.[48] The Court found that one of the primary purposes of the statute was to provide employees the right to a minimum wage, and therefore that the General Assembly would have intended an implied right of action because the General Assembly would not have established a right "without a corresponding remedy."[49]

         Section 4901A clarifies the DMMA's purpose of protecting individuals with debilitating medical conditions from arrest or prosecution and from criminal or other penalties. However, just as in Heller and Callaway, there is no remedy in the DMMA's anti-discrimination provision for damages caused by the prohibited discrimination. Although a criminal sanction against the employer might deter future violations, it would provide little by way of remedy to an employee who was discharged. In fact, without an implied private right of action, Plaintiff, like the employees in Heller and Callaway, would have no other recourse.

          In short, while the fact that the General Assembly authorized a private right of action in Section 4924A may serve as some evidence that a private right of action was not intended in Section 49O5A(a)(3), the Court finds that the other arguments supporting the provision of an implied private right of action by the General Assembly outweigh such evidence.

         The Court also finds Kraft Heinz's third argument unconvincing. The fact that the DMMA does not state that it is to be construed liberally does not establish that this is so. Statutes prohibiting discrimination are generally deemed remedial, and Delaware law is clear that remedial statues are granted a liberal construction.[50]

         Upon a careful review of the briefings and case law provided by counsel, the Court finds the case at hand distinguishable from Kraft Heinz's cited case law, notably Ray's Plumbing. In Ray's Plumbing, this Court found that the plaintiff, as a subcontractor, had access to alternative civil remedies such as breach of trust, breach of contract, and fraud.[51] In this case, by contract - - as in Heller and Callaway - - a private right of action is the only means of effectuating the statute's remedial purpose.

         B. Count II: Plaintiffs Claims Under the ADA and the DEPA.

         Kraft Heinz next moves to dismiss Plaintiffs claims of violations of the ADA and the DEPA as untimely. Federal and Delaware law requires that a plaintiff file a disability discrimination claim within 90 days of receiving right-to-sue notices from the agencies responsible for investigating a discrimination charge (in this case both the EEOC and DDOL).[52] Failure to abide by this time frame will bar a claim.[53]

         In this case, Plaintiff filed his initial complaint pro se within the 90-day time period. However, the initial complaint alleged violations of the DMMA as well as retaliation under OSHA, and did not include disability discrimination claims under the ADA or the DEPA. These claims were not brought before the Court until Plaintiff subsequently obtained counsel and filed an Amended Complaint on March 26, 2018.

         Cognizant of the difficulties faced by pro se plaintiffs, this Court holds a. pro se plaintiffs complaint to a less demanding standard of review.[54] However, "there is no different set of rules for pro se plaintiffs, "[55] and the Court's leniency cannot go so far as to affect the substantive rights of the parties.[56] Thus, the question before the Court is whether the Amended Complaint's assertion of violations of the ADA and the DEPA raises a new theory of liability that was not set forth in the original complaint, or whether this theory arises out of the same transaction or occurrence so as to relate back to the original complaint, which was timely filed.

         "An amendment of a pleading relates back to the date of the original pleading when...the claim...asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading."[57] In order for an amendment to relate back, there must be "fair notice of the general fact situation out of which the claim or defense arose."[58] Relation back is improper when the new claim(s) present a new and independent theory of liability based upon independent facts that were not set forth in the original complaint.[59]

         Here, the Court finds that Plaintiffs disability discrimination claims do not relate back to his initial complaint. The Court also finds that Plaintiffs original complaint failed to plead sufficient facts so as to put Kraft Heinz on notice of the general fact situation out of which the disability discrimination claims arose.

         Plaintiff argues that his original complaint pled facts adequately alleging disability discrimination. Plaintiffs original complaint alleges that Kraft Heinz violated the DMMA and retaliated against Plaintiff for reporting safety issues. Subsection B of the original complaint states that "[w]hile filling out the paperwork for the drug test, Plaintiff inquired about how to fill out the paperwork considering his medical marijuana prescription." The original complaint also alleges that Plaintiff needed to take multiple drug tests. Thus, Kraft Heinz knew that Plaintiff possessed a medical marijuana card, which Plaintiff argues is sufficient to establish a nexus between the allegations in the original complaint and those of the Amended Complaint.

         Plaintiff argues that in order to be a cardholder under the DMMA, an individual must be deemed a "qualifying patient," which means that he or she must have "been diagnosed by a physician as having a debilitating medical condition."[60] Plaintiff alleges that because Kraft Heinz knew that he possessed a medical marijuana card, it was aware that Plaintiff had been diagnosed with a "debilitating disease" by a physician. Additionally, Plaintiff alleges that Kraft Heinz knew that he had used significant portions of his FMLA and short-term disability benefits over the years. Thus, Plaintiffs primary argument for why relation back is proper in this case is that he was a cardholder under the DMMA and, consequently, that Kraft Heinz knew or should have known that he was a person "disabled" for purposes of the ADA and the DEPA. This argument is tenuous and lacks merit for several reasons.

         As a preliminary matter, the Court notes that Plaintiff has cited to no legal authority for the proposition that status as a Delaware medical marijuana cardholder equates to possessing a "disability" within the confines of the ADA or the DEPA. The Court notes that the ADA defines an individual with a disability as a person "who has a physical or mental impairment that substantially limits one or more major life activities, has a record of such impairment, or is regarded as having such an impairment."[61] Notably, the DMMA does not include a definition of "disability". Rather, Plaintiff attempts to analogize to a "disability" by referencing the definition for a "debilitating medical condition," which includes "[a] chronic or debilitating disease or medical condition...."[62] These two definitions, while similar, are not identical. Moreover, while it is certainly possible that an individual with a disability under the ADA may also be a "qualifying patient" under the DMMA, the Court will not simply infer this correlation or assume that someone is an individual with a disability under the ADA or DEPA merely because that individual holds a medical marijuana card.

         Additionally, even assuming arguendo that Plaintiffs status as a "qualifying patient" under the DMMA necessarily classified him as an individual with a "disability" under the ADA and the DEPA, there is nothing in Plaintiffs original complaint to indicate that Kraft Heinz terminated Plaintiffs employment due to his "disability". Thus, Kraft Heinz cannot be found to have been on notice regarding potential disability discrimination claims. Rather, the original complaint alleges that Kraft Heinz terminated Plaintiff because he failed a drug test for medical marijuana use, and that it retaliated against Plaintiff for reporting safety issues. The Amended Complaint, conversely, alleges that Plaintiff suffers from hand, wrist, and back problems that render him "disabled" and that Kraft Heinz terminated his employment based on his "disability" in violation of the ADA and the DEPA.

         Although the Court must accept all "well-pleaded" allegations as true for purposes of a Rule 12(b)(6) motion to dismiss, the Court will "ignore conclusory allegations that lack specific supporting factual allegations."[63] In this case, even reviewing Plaintiffs pro se complaint under the "less stringent standard," it nonetheless lacks well-pleaded allegations that would provide a sufficient legal or factual basis on which Plaintiff may recover from Kraft Heinz for disability discrimination. In making this determination, the Court relies upon the analysis laid out by the Delaware Supreme Court in Moore v. Emeigh.[64] In that case, the Supreme Court affirmed the trial court's discretionary decision that a claim of negligence against the defendant for failing to inspect constituted a new claim that did not relate back to a claim of vicarious negligence pled in the original complaint.[65] In so holding, the Supreme Court found that the new claim was not based upon facts contained in the original complaint.[66] Here, as in Moore, the Court finds that the new claims of disability discrimination are not based upon facts contained in the original complaint, which alleges only discrimination for medical marijuana use and retaliation under OSHA, and Count II is therefore dismissed.

         C. Count III: Plaintiff s Claims Under the DWPA.

         Kraft Heinz next asserts that Plaintiff did not engage in "protected conduct" under the DWPA, as the Amended Complaint fails to allege any specific violations of law, and fails to allege that Plaintiff reported any such violations to management. For the reasons outlined below, Plaintiffs claim of a violation of the DWPA will survive Kraft Heinz's 12(b)(6) motion to dismiss; however, should Plaintiff be unable to discover evidence to support his allegation, this claim is subject to resolution in Kraft Heinz's favor at the summary judgment phase.

         The DWPA acts to protect "employees who report violations of the law for the benefit of the public," as well as to "provide[ ] a check on persons in positions of authority, by ensuring that they do not take retaliatory action against subordinates who disclose misconduct."[67] The DWPA prohibits an employer from discharging or otherwise discriminating against an employee for reporting a "violation" to the employer or to the employee's supervisor, which he/she "knows or reasonably believes has occurred or is about to occur."[68] A "violation" is "an act or omission by an employer...that is...[m]aterially inconsistent with, and a serious deviation from, standards implemented pursuant to a law, rule, or regulation promulgated under the laws of this State...."[69]

         The elements for a. prima facie case of a violation of the DWPA are as follows: (1) the employee engaged in a protected whistleblowing activity; (2) the accused official knew of the protected activity; (3) the employee suffered an adverse employment action; and (4) there is a causal connection between the whistleblowing activity and the adverse action.[70]

         Kraft Heinz argues that Plaintiffs DWPA count must be dismissed, as Plaintiff fails to plead facts showing which law, rule or regulation he believed had been violated in connection with the unsafe conditions of the railroad ties, and that whether Plaintiff reasonably believed the conduct was violative is irrelevant.[71] Additionally, Kraft Heinz argues that even if Plaintiff had identified some ...


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