United Airlines Inc. has managed to get a troublesome lawsuit moved from state to federal court where on Nov. 19 it will argue that the judge should dismiss the case before goes any further.
The civil action was brought against United by Marcia Lee, who was from March 3 to Sept. 11, 2017, the airline’s senior manager for food safety. The Chicago-based carrier recruited Lee for the job. She was previously a senior food and drug inspector for the Massachusetts Department of Public Health, Bureau of Environmental Health, Division of Food and Drugs.
Lee ‘s tenure with United was short but coincides with some incidents involving the airline’s flight kitchens, most notability at its Denver and Newark, NJ, hubs.
In her multifaceted lawsuit, Lee contends she was recruited to join United based upon certain false, material misrepresentations concerning United’s intention “to address, cure, and resolve known food and food product processing and handling safety issues.”
After six months, Lee concluded United was not interested in fixing its food safety problems, so she quit. She says “United has a significant track record of serious violations of federal, state, and local food health law, rules and regulations spanning many years.”
United’s Denver flight kitchen
The civil lawsuit claims United tried to “hide the problem” at its “Journey Cuisine” flight kitchen at Denver International Airport “by subjecting the facility to numerous, multi-day ‘deep cleanings’ orchestrated by one or more United upper management employees who attempted to mislead the FDA by eliminating the filthy conditions in the few days immediately before the FDA descended upon the United facility for an emergency inspection.”
The U.S. Food and Drug Administration inspected the Denver flight kitchen from Jan. 12 to Feb. 1, 2017, and issued a violation notice. During the incident, United’s Chelsea Food Services, doing business as Journey Cuisine, recalled 28,000 pounds of pork and chicken burritos and wrap products for potential Listeria monocytogenes contamination.
The ready-to-eat pork and chicken products were produced by Journey between Sept. 11, 2017, and Oct. 26, 2017. They were shipped mostly to King Soopers retail locations in Colorado, New Mexico, Utah and Wyoming. Shortly thereafter, King Soopers announced it would be getting a new vendor for the products.
Journey Cuisine had notified the U.S. Department of Agriculture’s Food Safety and Inspection Service (FSIS) on Oct. 30 that one of its burrito products had tested positive for Listeria monocytogenes. The flight kitchen reported four other products could have been affected based on common ingredients.
None of the suspect products were going to airline passengers and there were no reports of illnesses associated with the recalled products.
Lee’s complaint says that “upon information and belief, United is considered by the FDA to be a bad actor when it comes to serious food safety violations causing or potentially causing sickness, death and significant harm to United’s passengers.”
Lee further points to problems at United’s large flight kitchen at Newark International Airport. She cites a recent closure ordered by local and regional officials after “the discovery of conditions in violations of food safety laws, rules, codes, and/or regulations, conditions which created a significant risk of serious bodily hard, sickness, and potentially death, to workers in the facility as well as to United’s passengers.”
She says the unsafe practices and conditions at Newark existed during her tenure.
United has more than 400 daily flights out of Newark, including many to international locations. The Newark catering service is one of the largest in United’s worldwide system. It prepares thousands of meals daily for United passengers and U.S. military personnel.
Lee says her “constructive discharge” from employment with United came after she made appropriate reports of those conditions.
United says the airline is investing $21 million to upgrade its catering facilities and pledges it is “committed to serving our customers the safest and highest quality food in the air,” but it isn’t relying on food safety to dispose of Lee’s lawsuit.
The airline plans to move for dismissal of the lawsuit based on legal arguments that Lee brought the action as a New Jersey-based employee and United’s position is she was assigned to work at United’s Chicago headquarters. Further, United says Lee was a day late in filing her action. The deadline was one year after her separation.
United’s attorneys Suzanne M. Cerra and Robin H. Rome, both with Nukk-Freeman & Cerra PC in Chatham, NJ, say neither the New Jersey Law Against Discrimination (NJ LAD), nor the Conscientious Employee Protection Act (CEPA) cover Marcia Lee.
“United vehemently denies the substance of these allegations. However, even accepting the allegations as true, Plaintiff (Lee) is not entitled to file suit under the NJ LAD or CEPA, as she neither lived nor worked in New Jersey during her brief sixmonth tenure with United. Rather, at the time she was hired in March 2017, (Lee) lived in the state of Massachusetts,” the United attorneys argue.
“As a condition of her employment, (Lee) was required, within one year, to relocate to Chicago, where United’s headquarters is located, and where Plaintiff’s work would be stationed. Though Plaintiff’s role did require her to travel to multiple catering facilities throughout the United States, including New Jersey on occasion, at no point during her six-month tenure did Plaintiff ever live or work primarily within the State of New Jersey. As such, she cannot make a colorable claim under the NJ LAD or CEPA.”
United’s Newark flight kitchen
The most serious claim Lee makes involves an August 2017 lab report that sowed food at the Newark flight kitchen was positive for Listeria. Lee says she immediately checked to see if her senior food safety manager sent the positive sample out for verification, which he had done.
As mandated by FDA, the tainted food products were put “on hold” so they could not be distributed to United passengers flying out of Newark. A global internal United alert was sent out about the possible presence of the potentially deadly pathogen.
Lee says United’s upper management resisted keeping the food on hold because of business concerns, and advised her, in sum and substance, that United was going to delay making mandatory reports to the FDA concerning the situation.
Lee advised United upper management that the failure to immediately make those reports was a serious violation of applicable federal, state and local laws, regulations, codes and rules.
As United’s senior manager for food safety, Lee says she faced serious, significant, criminal and civil liability exposure if United’s failure to make those timely reports to the FDA resulted in infecting a United passenger with a foodborne pathogen.
Lee reported to United’s vice president for regulatory compliance who, she says, told her to stand down and ordered her to not send the mandatory report to the FDA immediately. According to CNBC reports, United’s Newark catering operation had 175 positives for Listeria species and 27 for Listeria monocytogenes between February and August of 2017. The illnesses were associated with food handled by the facility, CNBC reported.
Lee says United was fully aware of the situation and intentionally violated FDA regulations and needlessly put passengers at risk of serious harm and even death. She also says United was aware that if she permitted that to occur, she would be committing what amounted to a criminal omission, putting her at risk for jail time and fines under the Park Doctrine. The doctrine is named for the 1975 decision from the U.S. Supreme Court in the case United States v. Park, 421 U.S. 658, which discusses the personal liability of corporate officials.
By its refusal to take the required corrective action immediately, Lee further claims United was forcing her to either participate in serious criminal and/or civil wrongdoing or to resign involuntarily.
Eliot Mosby, who managed the Newark flight kitchen, and Gustavo Moya, its food safety manager, have also filed lawsuits against United.