A former Mariano’s employee who accused the grocer of mishandling medical testing equipment also said the company improperly stores its employees’ biometric data.
In a complaint filed June 9 in Cook County Circuit Court, Thomas Doporcyck said Roundy’s Supermakets, Inc., Roundy’s Illinois, LLC, which does business as Mariano’s Fresh Market, and The Kroger Company, fired him for complaining about a failure to comply with federal clinical laboratory testing requirements and using potentially contaminated meters when testing customers’ glucose levels. But he also has brought a class action complaint against Mariano’s and Kronos, Inc., regarding fingerprint readers.
According to the complaint, Kroger operates more than 2,000 supermarkets nationwide, including 41 Mariano’s stores in Illinois. Mariano’s enrolls its employees in the Kronos employee database, which monitors time on the job, including for salaried employees, via a fingerprint scanner time clock. Doporcyck was hired as pharmacy manager for the Gurnee Mariano’s in December 2013 and was transferred to the Northbrook location in 2015. He earned about $132,000 in annual base salary and collected a $5,000 bonus in 2015.
Doporcyck said Mariano’s and Kronos fail to comply with the state’s Biometric Information Privacy Act’s requirements to inform employees in writing of the specific purpose of collecting and storing fingerprints, provide a retention schedule and guidelines for destroying the fingerprints and collect written releases to collect the fingerprint data. He also said it is wrong for Mariano’s to disclose employee fingerprint data to Kronos as an out-of-state, third-party vendor.
The class would include any Kroger employee who worked at an Illinois store and provided a fingerprint. Doporcyck seeks statutory damages of $5,000 for each willful BIPA violation and $1,000 for each negligent violation.
Relative to his termination, Doporcyck seeks recovery under the Illinois Whistleblower Act. He said he was fired in February 2016 after he told corporate officials his store did not have a valid Clinical Laboratory Improvement Amendment waiver, which was required for the chain’s free glucose testing events that promoted meters it sold and the store claimed was also designed to raise awareness for diabetes treatments and hepatitis B vaccinations. He also noticed other Mariano’s stores lacked CLIA waivers and informed several fellow pharmacists of the situation via text message and email.
Doporcyck said supervisors rebuked him via email and phone, then suspended him on Feb. 4, 2016; he was fired on the phone a week later. He maintained he “exercised his rights by disclosing reasonably perceived illegalities at Mariano’s and by refusing to participate in activities he believed to be illegal.”
Before he noticed his store lacked a CLIA waiver, Doporcyck notified supervisors about his concerns with the failure to disinfect glucose meters between patients because of the possibility of spreading bloodborne pathogens. He refused to do the tests until he was able to order disinfectant wipes to clean meters after each use.
Doporcyck wants to be reinstated with a restoration of his seniority status and for the court to order back pay with interest, as well as compensation for damages along with legal and expert witness fees. He said the retaliatory discharge entitles him to “damages for past and future pain and suffering, damages for emotional trauma and his incidental and consequential damages,” as well as punitive damages.
Representing Doporcyck in the matter are attorneys from Stephan Zouras, LLP, of Chicago.