Opinion
No. 3:19-cv-00044-JEG-HCA
2020-06-03
Edgar T. CAMPBELL, Plaintiff, v. KRAFT HEINZ FOOD COMPANY, Defendant.
Stuart L. Higgins, Higgins Law Firm, PLLC, West Des Moines, IA, for Plaintiff. Martha L. Shaff, Betty Neuman & McMahon PLC, Davenport, IA, Daniel A. Kaplan Pro Hac Vice, Katelynn M. Williams, Pro Hac Vice, Foley & Lardner LLP, Madison, WI, for Defendant.
Stuart L. Higgins, Higgins Law Firm, PLLC, West Des Moines, IA, for Plaintiff.
Martha L. Shaff, Betty Neuman & McMahon PLC, Davenport, IA, Daniel A. Kaplan Pro Hac Vice, Katelynn M. Williams, Pro Hac Vice, Foley & Lardner LLP, Madison, WI, for Defendant.
ORDER
JAMES E. GRITZNER, Senior Judge
This matter comes before the Court on Motion for Summary Judgment, ECF No. 21, brought by Defendant Kraft Heinz Food Company. Plaintiff Edgar Campbell resists. Neither party requested oral argument, and the Court finds none is necessary in resolving this motion. The matter is fully submitted and ready for disposition.
I. BACKGROUND
In March 2017, Campbell began working in the sanitation department of Kraft Heinz's plant in Scott County, Iowa. Campbell's responsibilities included using chemicals to clean production equipment. As a new hire, Campbell was subject to a sixty-day probationary period, as provided in the plant's collective bargaining agreement. Kraft Heinz's practice at the plant was to terminate probationary employees without issuing written warnings if they engaged in conduct that would result in any formal discipline for a non-probationary employee. Pursuant to this practice, Lisa Culberson—the plant's Operational Risk Manager—reports that the plant terminated four probationary plant employees in 2016 for violating Kraft Heinz's policies; relevant to this case, three of the four had not filed workers' compensation claims. See Def.'s App. 38–Culberson Decl. ¶ 3, ECF No. 21-3. Culberson further states, "Between January 2016 and June 2019, there were 34 Plant employees who suffered workplace injuries and who are either still employed, voluntarily quit, or retired." Id. at ¶ 4.
During his probationary period, Campbell was purportedly involved in two safety incidents. The first incident occurred on April 19, 2017, when Campbell became ill after exposure to noxious fumes. As a result, the plant conducted a "near-miss" investigation, documented in a report. The report starts with a handwritten statement:
Felt burning to the eyes due to strong chemical. Went to eye wash station,
rinsed eyes out due to the burning sensation. Sat in office and started throwing up, shortness of breathe [sic]. Brought over to the office[.]
Def.'s App. 47–Culberson Decl. Ex. B, ECF No. 21-3.
The report contains a "Loss Causation Model" checklist. Id. The checklist categorizes causes into "Basic Causes" and "Immediate Causes," both of which contain two sub-categories with several checkboxes. Id. Under the Basic Causes category–Personal Factors sub-category, the marked checkbox was "New / In Training"; under the Basic Causes category–Job Factors sub-category, the marked checkbox was "Inadequate Work Standards"; and under the Immediate Causes category–Substandard Conditions, the marked checkbox was "Inadequate Ventilation." Id.
The report also contains a form with the caption "Root Cause – 5 Why Analysis." Id. at 48. In response to a question about which body part was injured, a handwritten answer states, "No body part injured, smell of the chemical." Id. The form then asks, "Why? What was the immediate action that hurt this body part?" Id. The first portion of the handwritten answer is crossed out and illegible, and it then says, "chemical mixture." Id. The form then asks, "Why did that action occur?" several times. Id. The handwritten answers are: "Getting ready to clean," "Nightly sanitation duties," and "Production just got done." Id.
The next section of the report is labeled "Recommendations for Preventative Action." Id. at 49. The first recommendation—assigned to Jessica Triphan, a manager at the plant—is, "Make sure chemicals are dispensed into proper containers," and it is marked as completed on April 23, 2017. Id. The next recommendation—assigned to "Team members"—is "New hires/transfers need to watch and understand the process of dispensing chemicals," which is marked as "ongoing." Id. Next, in a section for indicating the severity of the incident and probability of recurrence, the lowest levels are selected for both severity and probability of recurrence. For severity, the incident is categorized as "Minor" (as opposed to "Major" or "Severe"), which is defined as, "Minor injury or illness without lost time. Non-disruptive property damage; or quality production or other loss less than $5000." Id. For probability of recurrence, the incident is categorized as "Seldom" (as opposed to "Occasional" or "Frequent"), which is defined as occurring approximately once per year. Id. The report has the signatures of several individuals, including Campbell. Attached to the report are five pages of handwritten notes and statements. The last page of the report is a document with Campbell's type-written name at the top and several photos of chemical containers and labels. According to Culberson, the photos were of Campbell's work cart and were "taken during the investigation to document the person who mixed acid and chlorine, and [they] indicate[ ] that Plaintiff mixed acid and chlorine." Def.'s Supp. App.–2nd Culberson Decl. ¶ 12, ECF No. 30-2.
The second safety incident occurred on April 25, 2017, when Campbell suffered chemical burns on both wrists. Kraft Heinz's policy on personal protective equipment (PPE), as explained during training sessions for new hires such as Campbell, required sanitation department personnel not to wear cotton gloves against the skin, but to instead wear a rubber glove in between. According to Kraft Heinz, Campbell violated this policy by wearing cotton gloves against the skin, which resulted in his chemical burns. Campbell, however, denies that he violated the policy and claims that his injury occurred because the gloves he wore had pinholes in them that allowed exposure to chemicals.
Campbell's safety performance is marked as "Less Than Acceptable" in an April 26, 2017 performance evaluation. Def.'s App. 57–Culberson Decl. Ex. C, ECF No. 21-3. That checkbox is selected if the employee "[h]as exhibited on one or more than one occasion a failure to adhere to safe work instructions and procedures or not using appropriate PPE's, etc." Id. Campbell's overall performance is also marked as "Less Than Acceptable." Id. at 58. A handwritten comment on the evaluation form says, "Employee was injured not wearing the correct PPE during the sanitation cleaning process. Employee is expected to follow all safety procedures and PPE requirements at all times." Id. Campbell's signature appears on the bottom of the document, along with the signatures of a manager and supervisor. Id. Campbell admits he signed a performance evaluation on or around April 26, 2017; however, he claims he never knowingly signed an evaluation stating that his safety or overall performance was less than acceptable. Campbell surmises that the document provided by Kraft Heinz "may have been altered." Pl.'s App. 8, ECF No. 26-4.
Culberson states in her affidavit that the plant's "longstanding consistent practice is that probationary employees sign ‘New Hire Performance Evaluation’ forms after the form has been completed by the employee's manager." Def.'s Supp. App.–2nd Culberson Decl. ¶ 12, ECF No. 30-2.
After reporting the injury to the plant's medical staff, Campbell was placed on light-duty work status. Campbell was evaluated by medical staff at the plant on several occasions over the next few weeks, and he reported increasing pain in his right hand and wrist. According to Campbell, the medical staff told him not to seek treatment from a physician; Kraft Heinz denies they did so and reports that, in any event, the medical staff at the plant are employed by a third-party contractor.
On May 18, 2017, John Fleming, the plant's sanitation manager, wrote an email to Rodney Warhank, the plant's associate human resources manager, stating, "I will be releasing Edgar in the morning due to safety violations. Edgar has had a near miss and a potential recordable within his probation period and is not giving me a good feeling about his employment here. Any watch outs here?" Def.'s App. 65–Warhank Decl. Ex. A, ECF No. 21-3. Warhank reports, and Campbell concedes, that Fleming and Warhank then discussed Campbell's purported safety violations without mentioning the topic of workers' compensation. See Def.'s App. 62–Warhank Decl. ¶¶ 9-11, ECF No. 21-3; Pl.'s Resp.–Def.'s State. Facts Nos. 32-34, ECF No. 26-2. The next day, May 19, Fleming terminated Campbell and notified several Kraft Heinz employees about the termination. In response to a question from human resources employee Amy Matlick about why Campbell was terminated, Fleming replied, "Safety." Def.'s App. 67–Warhank Decl. Ex. B, ECF No. 21-3. Matlick replied that she would "process termination for safety violation." Id. Several days later, on May 22, Culberson forwarded an email in which a nurse manager reported that Campbell missed an appointment; Culberson commented that Campbell "was fired due to many safety violations in his probation and now he has missed appointment for medical care for his burn." Def.'s App. 60–Culberson Decl. Ex. D, ECF No. 21-3. Campbell later testified at his workers' compensation deposition that he was not given a reason for why he was fired.
On May 10, 2019, Campbell filed a lawsuit against Kraft Heinz, several other Kraft Heinz companies, and several Kraft Heinz employees in the Iowa District Court for Scott County. Campbell's single-count petition claimed wrongful discharge under Iowa state law, alleging that Kraft terminated him for pursuing workers' compensation benefits. Campbell later dismissed the claim as to all the defendants except Kraft Heinz and Culberson. Kraft Heinz removed to this Court on June 12, 2019, on the basis of diversity jurisdiction, asserting that Campbell's joinder of Culberson, an Iowa resident, was fraudulent and could not, therefore, defeat diversity between Campbell, an Iowa resident, and Kraft Heinz, a Pennsylvania corporation. After Kraft Heinz filed a motion for partial judgment on the pleadings, asking the Court to dismiss the claim against Culberson, Campbell moved to dismiss the claim against Culberson, which the Court granted and thus deemed Kraft Heinz's motion moot. On March 2, 2020, Kraft Heinz filed this motion for summary judgment.
Under 28 U.S.C. § 1445(c), "[a] civil action in any State court arising under the work-men's compensation laws of such State may not be removed to any district court of the United States." Because like § 1445(a), § 1445(c) "does not involve subject matter jurisdiction," In re Norfolk S. Ry. Co., 592 F.3d 907, 912 (8th Cir. 2010), and Campbell has not objected to removal on this basis, Campbell has waived any § 1445(c) argument, see Bloom v. Metro Heart Grp. of St. Louis, Inc., 440 F.3d 1025, 1031 n.2 (8th Cir. 2006) (holding plaintiff waived objection to removal based on § 1445(c) "when she did not timely move for remand in the district court, on this ground" (citing Phillips v. Ford Motor Co., 83 F.3d 235, 236 n. 3, 237 n. 5 (8th Cir. 1996) )).
In any event, Campbell's claim for wrongful discharge is a judicially-recognized tort for violation of Iowa public policy, see Berry v. Liberty Holdings, Inc., 803 N.W.2d 106, 109 (Iowa 2011), and his claim does not, therefore, arise under Iowa workers' compensation laws, see, e.g., Hanna v. Fleetguard, Inc., 900 F. Supp. 1110, 1118-23 (N.D. Iowa 1995) (analyzing Humphrey v. Sequentia, Inc., 58 F.3d 1238 (8th Cir. 1995), and Spearman v. Exxon Coal USA, Inc., 16 F.3d 722 (7th Cir. 1994), and finding that, "[b]ecause the Iowa legislature omitted this cause of action from its statutory scheme, the court concludes retaliatory discharge is not a civil action arising under Iowa's worker's compensation laws and is properly removable to federal court pursuant to 28 U.S.C. § 1441(a)"). Compare Humphrey, 58 F.3d at 1246 (distinguishing Spearman in holding Missouri retaliatory discharge claim arose under Missouri's workers' compensation laws for purposes of § 1445(c) when cause of action was created by Missouri workers' compensation statute), with Spearman, 16 F.3d at 725 (holding Illinois wrongful termination claim for pursuing workers' compensation did not arise under Illinois workers' compensation laws for purposes of § 1445(c) when cause of action was for common law violation of Illinois public policy, Illinois' workers' compensation laws were merely "a premise of the tort," and the "claim of retaliatory discharge may be adjudicated without any inquiry into the meaning of the workers' compensation laws").
II. DISCUSSION
A. Summary Judgment Standard
"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "The movant ‘bears the initial responsibility of informing the district court of the basis for its motion,’ and must identify ‘those portions of [the record] ... which it believes demonstrate the absence of a genuine issue of material fact.’ " Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc) (alterations in original) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ). If the movant makes such a showing, to avoid summary judgment the nonmovant must "respond by submitting evidentiary materials that set out ‘specific facts showing that there is a genuine issue for trial.’ " Id. (quoting Celotex, 477 U.S. at 324, 106 S.Ct. 2548 ). A genuine issue for trial requires more than "some metaphysical doubt as to the material facts." Id. (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ). The Court is not "obligated to wade through and search the entire record for some specific facts" in support of an argument on summary judgment. Johnson Tr. of Operating Eng'rs Local #49 Health & Welfare Fund v. Charps Welding & Fabricating, Inc., 950 F.3d 510, 523 (8th Cir. 2020) (holding that nonmovants on summary judgment "did not meet their burden in opposing summary judgment" when "they did not direct the district court to evidentiary materials setting out specific facts showing a genuine issue").
"Summary judgment is appropriate when the evidence, viewed in a light most favorable to the nonmoving party, shows no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law." Couch v. Am. Bottling Co., 955 F.3d 1106, 1108 (8th Cir. 2020) (quoting Phillips v. Mathews, 547 F.3d 905, 909 (8th Cir. 2008) ); see also Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) ("At the summary judgment stage, facts must be viewed in the light most favorable to the nonmoving party only if there is a ‘genuine’ dispute as to those facts." (quoting Fed. R. Civ. P. 56(c) )). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Scott, 550 U.S. at 380, 127 S.Ct. 1769 (alteration in original) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). "A fact is ‘material’ if it may affect the outcome of the lawsuit." TCF Nat'l Bank v. Mkt. Intelligence, Inc., 812 F.3d 701, 707 (8th Cir. 2016) (quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505 ). "When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment." Scott, 550 U.S. at 380, 127 S.Ct. 1769.
"Mere speculation is insufficient to defeat summary judgment." Lacey v. Norac, Inc., 932 F.3d 657, 660 (8th Cir. 2019) (citing Gannon Int'l, Ltd. v. Blocker, 684 F.3d 785, 794 (8th Cir. 2012) ); see also Barber v. C1 Truck Driver Training, LLC, 656 F.3d 782, 801 (8th Cir. 2011) (reasoning that to survive summary judgment, non-moving party must offer "more than mere speculation, conjecture, or fantasy" (quoting Putman v. Unity Health Sys., 348 F.3d 732, 734 (8th Cir. 2003) )). Similarly, "[a] plaintiff may not merely point to unsupported self-serving allegations, but must substantiate allegations with sufficient probative evidence that would permit a finding in the plaintiff's favor." Awnings v. Fullerton, 912 F.3d 1089, 1098 (8th Cir. 2019) (alteration in original) (quoting Davidson & Assocs. v. Jung, 422 F.3d 630, 638 (8th Cir. 2005) ). "[I]t is black letter summary judgment law that a conclusory, self-serving affidavit will not defeat an otherwise meritorious summary judgment motion." Keiran v. Home Capital, Inc., 858 F.3d 1127, 1132 (8th Cir. 2017) (citing Chavero–Linares v. Smith, 782 F.3d 1038, 1041 (8th Cir. 2015) ).
B. Campbell's Termination
Campbell's sole claim is for wrongful discharge under Iowa law. Although Iowa is generally an at-will employment state, Iowa law recognizes "a narrow public-policy exception to the general rule of at-will employment." Berry v. Liberty Holdings, Inc., 803 N.W.2d 106, 109 (Iowa 2011) (citing Springer v. Weeks & Leo Co., 429 N.W.2d 558, 560 (Iowa 1988) ). "The public-policy exception to the at-will employment doctrine limits an employer's discretion to discharge an at-will employee when the discharge would undermine a clearly defined and well-recognized public policy of the state." Id. (citing Jasper v. H. Nizam, Inc., 764 N.W.2d 751, 761, 763 (Iowa 2009) ). "Accordingly, an at-will employee has a cause of action for wrongful discharge when the reasons for the discharge violate a clearly defined and well-recognized public policy." Id. To make out a prima facie case of retaliatory discharge, Campbell "must establish (1) engagement in a protected activity, (2) adverse employment action, and (3) a causal connection between the two." Rivera v. Woodward Res. Ctr., 865 N.W.2d 887, 894 (Iowa 2015) (quoting Teachout v. Forest City Cmty. Sch. Dist., 584 N.W.2d 296, 299 (Iowa 1998) ). "If [Campbell] meets [his] prima facie burden, [Kraft Heinz] must articulate a legitimate, non-retaliatory reason for its action. If [Kraft Heinz] meets this burden, [Campbell] must then identify evidence sufficient to create a genuine issue of material fact whether [Kraft Heinz]'s proffered explanation is merely a pretext for unlawful retaliation." Wierman v. Casey's Gen. Stores, 638 F.3d 984, 999 (8th Cir. 2011).
There is no dispute that Campbell suffered an adverse employment action. For purposes of summary judgment, Kraft Heinz appears to assume without conceding that Campbell engaged in a protected activity, that is, he sought (or planned to seek) workers' compensation benefits after his April 25, 2017 injury. The existing record does not appear to contain any evidence establishing when Campbell sought workers' compensation benefits, only when Campbell suffered and reported the injury that arguably entitled him to benefits. Assuming without deciding that Campbell sought workers' compensation or advised Kraft Heinz he would seek compensation prior to his termination, the only element at issue is whether "his alleged protected activity caused the termination." Napreljac v. John Q. Hammons Hotels, Inc., 505 F.3d 800, 803 (8th Cir. 2007).
Iowa law is clear that "discharging an employee merely for pursuing the statutory right to compensation for work-related injuries offends against a clearly articulated public policy of this state." Springer, 429 N.W.2d at 559 ; see also Graves v. O'Hara, 576 N.W.2d 625, 628 (Iowa Ct. App. 1998) ("In Iowa, discharge based on retaliation for seeking workers' compensation benefits is against public policy." (citing Springer, 429 N.W.2d at 560 )). However, "[t]he causation standard in a common-law retaliatory discharge case is high. The employee's engagement in protected conduct must be the determinative factor in the employer's decision to take adverse action against the employee." Napreljac, 505 F.3d at 803 (quoting Teachout, 584 N.W.2d at 301 ). "A determining factor is one that tips the scales decisively in either direction." Graves, 576 N.W.2d at 628 (internal citation omitted) (citing Smith v. Smithway Motor Xpress, Inc., 464 N.W.2d 682, 686 (Iowa 1990) ). "Stated otherwise, a determining factor is the ‘final straw.’ " Glandon v. Keokuk Cty. Health Ctr., 408 F. Supp. 2d 759, 770 (S.D. Iowa 2005) (quoting Davis v. Horton, 661 N.W.2d 533, 536 (Iowa 2003) ).
1. Timing
Campbell's primary argument is that "the timing of the workers' compensation claim to the termination is powerful evidence of Kraft Heinz's retaliatory intent." Pl.'s Resist. 9, ECF No. 26-3. Campbell argues he suffered and reported the injury on April 25, 2017, and was terminated twenty-four days later, on May 19. A "short turnaround" between a protected activity and an employee's termination may "create an inference of retaliation," Couch, 955 F.3d at 1109 (quoting Wright v. St. Vincent Health Sys., 730 F.3d 732, 738 (8th Cir. 2013) ), but "generally speaking, timing alone is not enough to establish pretext," id. (citing EEOC v. Kohler Co., 335 F.3d 766, 773 n.7 (8th Cir. 2003) ). Although "the timing between the protected activity and the discharge is insufficient, by itself, to support the causation element of the tort," it may be enough to demonstrate causation if supported by additional, circumstantial evidence. Jasper, 764 N.W.2d at 768 (citing Hulme v. Barrett, 480 N.W.2d 40, 43 (Iowa 1992) ); see also Webner v. Titan Distribution, Inc., 267 F.3d 828, 835-36 (8th Cir. 2001) (in analyzing challenge to jury verdict, stating "timing of an adverse employment action standing alone is insufficient to support a retaliatory discharge claim" but finding that the verdict for the plaintiff was supported by additional evidence besides timing).
In Jasper, for instance, the Iowa Supreme Court affirmed a jury verdict finding an employee was wrongfully discharged for refusing to understaff a day-care facility when there was evidence that the plaintiff was terminated shortly after refusing to staff the facility below minimum state requirements as requested by the defendant and that after terminating the plaintiff, the defendant then reduced staffing below state requirements. Jasper, 764 N.W.2d at 768. By contrast, in Couch, the Eighth Circuit affirmed the grant of summary judgment in favor of the defendant on a racial discrimination claim even though the record demonstrated the plaintiff received a negative performance review three days after filing an EEOC complaint, was suspended fifteen days later, and was fired fifteen days after that. Couch, 955 F.3d at 1109. The Eighth Circuit reasoned that the plaintiff's timing argument was insufficient to defeat summary judgment because the claim was not supported by additional evidence and "any inference that might be drawn from timing is especially weak" because when the plaintiff filed his EEOC complaint, he "knew that his interim review" would occur shortly after he filed the complaint. Id.
Like the plaintiff's timing argument in Couch, Campbell's timing argument is undermined by the fact that his termination occurred around the time his sixty-day probationary employment period was coming to an end. In addition, Campbell's timing argument alone without additional supportive evidence is insufficient to survive summary judgment. See Couch, 955 F.3d at 1109 ("[G]enerally speaking, timing alone is not enough to establish pretext."); Jasper, 764 N.W.2d at 768 ("[T]he timing between the protected activity and the discharge is insufficient, by itself, to support the causation element of the tort.").
The Court assumes without deciding that Campbell engaged in the protected activity at the time he reported his injury on April 25, although, as previously discussed, the existing record is unclear as to when Campbell first pursued workers' compensation benefits or alerted Kraft Heinz of his intent to do so.
2. Safety Incidents
Campbell argues that his timing inference is confirmed by Kraft Heinz's allegedly pretextual justifications for terminating him. "In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose." Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 134, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (citing Wright v. West, 505 U.S. 277, 296, 112 S.Ct. 2482, 120 L.Ed.2d 225 (1992) ). If Kraft Heinz's proffered justifications had "no basis in fact," it would support Campbell's inference that he was fired due to his workers' compensation injury and claim. Logan v. Liberty Healthcare Corp., 416 F.3d 877, 881 (8th Cir. 2005) (finding that the plaintiff could not show justifications for firing were pretextual when there was evidence that the employer was considering termination before the plaintiff engaged in the protected activity (quoting Smith v. Allen Health Sys., Inc., 302 F.3d 827, 834 (8th Cir. 2002) )). Kraft Heinz argues that Campbell was terminated because of two documented safety violations, which are evidenced by reports documenting both instances and contemporaneous email exchanges between Kraft Heinz personnel discussing Plaintiff's termination.
Although the parties agree that Campbell became ill after being exposed to noxious fumes on April 19, 2017, the parties offer competing interpretations of the incident. According to Kraft Heinz, the incident occurred because Campbell improperly mixed acid and chlorine, despite his prior training not to do so. Campbell denies that he mixed acid and chlorine, denies that he received training not to mix acid and chlorine, highlights the investigation report's statement that Triphan—the manager—was responsible for ensuring chemicals were dispensed into their proper containers, and claims he was never disciplined nor warned about the incident.
Campbell also claims that the fumes were caused by the mixture of bleach and acid, not chlorine and acid.
Viewing the evidence in the light most favorable to Campbell, the near-miss investigation report does not clearly assign blame for the safety incident, to Campbell or anyone else. See Def.'s App. 47–Culberson Decl. Ex. B, ECF No. 21-3. Campbell is correct that the report charges Triphan, not Campbell, with ensuring chemicals are dispensed into the proper containers. Id. at 49. Further, the report describes the causes of the incident as "New / In Training," "Inadequate Work Standards," and "Inadequate Ventilation." Id. at 47. Considered cumulatively and in the context of the remainder of the report, these identified causes do not conclusively show that Campbell was at fault and in violation of Kraft Heinz safety policy. Kraft Heinz cites Culberson's affidavit stating the photos of chemicals under Campbell's name at the end of the report were of Campbell's work cart and were "taken during the investigation to document the person who mixed acid and chlorine, and indicate[ ] that Plaintiff mixed acid and chlorine." Def.'s Supp. App.–2nd Culberson Decl. ¶ 12, ECF No. 30-2. However, Culberson provides no support for her statement, and it is unclear from her affidavit if she was personally involved in the near-miss investigation. Nothing on the report itself indicates that these pictures are meant to show Campbell was at fault, and viewing the evidence in the light most favorable to Campbell, Culberson's conclusory statement regarding the report is insufficient to demonstrate that Campbell violated a safety policy in this incident.
In contrast to the report on the April 19 safety incident, Campbell's April 26, 2017 performance evaluation clearly faults Campbell for violating plant safety policy in the April 25 incident that resulted in burns to Campbell's wrists. The evaluation describes Campbell's safety performance and overall performance as "Less Than Acceptable," indicating he "exhibited one or more than one occasion a failure to adhere to safe work instructions and procedures or not using appropriate PPE's, etc." Def.'s App. 57–Culberson Decl. Ex. B, ECF No. 21-3. The evaluation says that Campbell "was injured not wearing the correct PPE during the sanitation cleaning process. Employee is expected to follow all safety procedures and PPE requirements at all times." Id. at 58. Campbell's signature appears on the bottom of the evaluation.
Campbell's only response to this performance evaluation is to argue he never knowingly signed an evaluation stating this his safety or overall performance was less than acceptable, even though he acknowledges signing a performance evaluation around the time of the incident. Campbell asserts that the document produced by Kraft Heinz "may have been altered." Pl.'s App. 8, ECF No. 26-4; Pl.'s Resist. 4, ECF No. 26-3. Campbell's self-serving speculation that the evaluation was altered is insufficient to defeat summary judgment. See e.g., Keiran, 858 F.3d at 1132 ("[I]t is black letter summary judgment law that a conclusory, self-serving affidavit will not defeat an otherwise meritorious summary judgment motion."). Campbell's claim that he did not violate Kraft Heinz safety policy by improperly wearing cotton gloves adjacent to his skin is belied by the performance evaluation, accompanied by Campbell's signature, acknowledging the violation. Campbell has failed to refute the evidence in the current record that he violated Kraft Heinz safety policy.
Kraft Heinz also cites contemporaneous email evidence to support its position that Campbell was fired due to safety violations. The day before Campbell was terminated, Fleming emailed Warhank, "I will be releasing Edgar in the morning due to safety violations. Edgar has had a near miss and a potential recordable within his probation period and is not giving me a good feeling about his employment here. Any watch outs here?" Def.'s App. 65–Warhank Decl. Ex. A, ECF No. 21-3. Campbell admits that Fleming and Warhank then discussed Campbell's safety record without discussing workers' compensation. See Pl.'s Resp.–Def.'s State. Facts Nos. 32-34, ECF No. 26-2. The day of Campbell's termination, May 19, Fleming emailed another human resources employee that Campbell was terminated due to safety. See Def.'s App. 67–Warhank Decl. Ex. B, ECF No. 21-3. On May 22, Culberson stated in an email that Campbell "was fired due to many safety violations in his probation." Def.'s App. 60–Culberson Decl. Ex. D, ECF No. 21-3. As with his negative performance evaluation, Campbell provides no meaningful response to these repeated, documented instances in which Kraft Heinz personnel discussed Campbell's termination for safety violations and cites no evidence in the record that supports Campbell's allegation that Kraft Heinz personnel based their decision on Campbell's pursuit of workers' compensation.
There is no genuine factual dispute in the record that Campbell violated Kraft Heinz safety policy. Campbell has failed to point to any evidence to raise a genuine issue of material fact that filing or the potential of filing a workers' compensation claim was any factor, let alone a determinative factor, in Kraft Heinz's decision to terminate Campbell's employment. See Melvin v. Car-Freshener Corp., 453 F.3d 1000, 1002-03 (8th Cir. 2006) ("[The plaintiff] has failed to present evidence demonstrating the existence of a genuine issue of material fact that her filing or threat of filing a workers' compensation claim was the determinative factor in her termination other than the close proximity in time between her injury and being placed on temporary layoff. As a matter of Iowa law, this is insufficient to establish a prima facie case of retaliatory discharge."); Barrera v. Con Agra, Inc., 244 F.3d 663, 665 (8th Cir. 2001) (affirming grant of summary judgment on wrongful discharge claim, reasoning "other than the timing of the discharge, [the plaintiff] produced ‘almost no evidence’ that his termination was in any way related to his worker's compensation claim. Under Iowa law, the fact that [the plaintiff] was fired after filing a worker's compensation claim is not alone sufficient to prove causation." (citing Hulme v. Barrett, 480 N.W.2d 40, 43 (Iowa 1992) )). Campbell has failed to present any evidence sufficient to satisfy the causation element and has therefore failed to meet his burden of making out a prima facie case of retaliatory discharge. See Napreljac, 505 F.3d at 804 ("[The plaintiff] failed to present evidence sufficient to satisfy the causation element of his prima facie case. In addition, he presented no evidence showing that the legitimate reason [the defendant] gave for the discharge was pretextual.").
Viewing the evidence in the light most favorable to Campbell, there is no genuine dispute of material fact regarding the cause of Campbell's termination. Kraft Heinz is therefore entitled to summary judgment against Campbell's wrongful discharge claim.
III. CONCLUSION
For the reasons explained above, Kraft Heinz's Motion for Summary Judgment, ECF No. 21, must be granted . There are no remaining claims, so this case must be dismissed.