Labor & Employment Law Daily Wrap Up, WHISTLEBLOWERS—W.D. Va.: Greenhouse employee fired after reporting concerns about mold on lettuce failed to plausibly allege protected activity, (Apr 25, 2025)

By Marjorie Johnson, J.D.

He failed to meet the state whistleblower law’s requirement of alleging he in good faith reported “a violation of any federal or state law or regulation to a supervisor.”

A former plant manager for a Gotham Greens greenhouse facility who claimed he was terminated in retaliation for raising safety concerns regarding black mold growing around lettuce plants failed to plausibly allege that he engaged in protected activity under Virginia’s Whistleblower Protection Law (VWPL). Because he did not link the presence of the excessive mold or caterpillar feces to violations of any specific state or federal law or regulation in his complaint beyond stating that it exceeds a “standard,” a federal district court in Virginia dismissed his VWPL claim without prejudice with leave to amend his complaint (Pryor v. Gotham Greens Butterhead, LLC, No. 3:24-cv-00078 (W.D. Va. Apr. 22, 2025)).

Raises concerns over mold. Gotham Greens owns and operates hydroponic greenhouses that grow produce, including lettuce, and sells its products to grocery retailers, restaurants and food service companies. In February 2024, the employee was hired as plant manager of the company’s facility in Stevensburg, Virginia. He claimed that during his otherwise successful short tenure at the company, he raised concerns regarding black mold growing extensively under and around the facility’s lettuce plants. Though he repeatedly asked for remedial measures to remove the mold, upper management failed to take any action.

Third-party testing. In May 2024, third-party testing confirmed the presence of mold, yeast, and Salmonella on samples from the facility. The employee forwarded this information to his supervisor, noting that the results reflected a safety concern for employees and suggesting the company “should rethink its ‘No Need To Wash’ label.”

Suggests N95 masks. On August 8, he wrote to his supervisor and the safety director reiterating his concerns and relaying that he had seen a sharp increase in caterpillar feces on the lettuce, stating that the conditions were “beyond the standard” for safe working conditions. He outlined safety precautions he intended to implement but his supervisor asked whether N95 masks were necessary as they could be burdensome to wear. He replied that he intended to distribute a comfortable N95 mask and noted that a significant respiratory hazard existed.

Terminated. The next day, he took scheduled leave. When he returned on August 16, his supervisor asked him to attend a meeting at which he was informed that he was being terminated immediately “in the best interest of the company.” He voiced his belief that his termination was made in retaliation for raising safety concerns, but the employer’s representatives did not deny or otherwise respond. Afterwards, the employer provided him with a letter which stated that he was not to disclose information he learned while working at the facility.

Public policy claim dismissed. He brought the action asserting wrongful termination in violation of public policy and wrongful termination in violation of the VWPL. The employer moved to dismiss both claims, arguing first that his public policy claim failed because the Virginia Occupational Safety and Health (VOSH) Act created the exclusive right at issue, and he failed to allege that he administratively exhausted any claim under the Act. He did not oppose dismissal of the claim, and therefore the court dismissed the claim without prejudice.

“Violation of any federal or state law.” The employer also argued that his VWPL claim failed because he did not plausibly allege that he engaged in protected activity under the statute. In particular, the VWPL prohibits retaliation against an employee who “in good faith reports a violation of any federal or state law or regulation to a supervisor.” The employer claimed that the employee did not do so here.

The employee was not required to show that a report of alleged unlawfulness was in fact meritorious, explained the court. However, he was required to show not only that he subjectively believed that the reported conduct violated the law, but also that his belief was “objectively reasonable.” And here, the employee conceded that he did not cite a specific statute when making his complaints. Instead, he claimed it was enough that his report was “self-evidently a complaint about a violation of federal law” since he reported to his supervisors that the caterpillar feces level was beyond “the standard for safe working conditions.” He also argued that he referenced both the federal and state general safety requirements in his pleadings.

The court was not persuaded and held that he failed to adequately allege that he engaged in protected activity under the VWPL since he did not cite specific violations of law. In particular, he failed to allege sufficient facts showing that his complaints about “a sharp increase in caterpillar... feces,” “feces levels [that] were beyond the standard for safe working conditions,” or “a significant respiratory hazard” were reports about violations of federal or state law or regulations. His mentioning of “the standard for safe working conditions” did not objectively resemble a violation of any federal or state law or regulation.

Thus, while he was not required to prove that the amount of caterpillar feces and mold did actually violate a Virginia or federal statute or regulation, he did need to sufficiently plead facts that show that his alleged belief of a violation was reasonable. Accordingly, the court dismissed his claim under the VWPL without prejudice with leave to amend his complaint.

The case is No. 3:24-cv-00078.

Judge: Yoon, J.

Attorneys: Tyler James Freiberger (Warner PLLC) for Alexander Pryor. William Buchanan Jackson (Jackson Lewis) for Gotham Greens Butterhead, LLC.

Companies: Gotham Greens Butterhead, LLC

Cases: Whistleblowers Discharge Safety Retaliation StateLawClaims VirginiaNews