U.S. Department of Labor

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Administrative Review Board

200 Constitution Ave. NW

Washington, DC 20210-0001

IN THE MATTER OF:

JEFFREY L. GREGORY,

COMPLAINANT,

NATIONS CABINETRY, LLC,

d/b/a BJ TIDWELL CABINETRY,

ARB CASE NO. 2023-0049

ALJ CASE NO. 2021-CAA-00001

ALJ PATRICK M. ROSENOW

DATE: January 29, 2026

RESPONDENT.

Appearances:

For the Complainant:

Thomas J. Crane, Esq.; Law Office of Thomas J. Crane; San Antonio,

Texas

For the Respondent:

Matthew C. Powers, Esq.; Graves, Dougherty, Hearon & Moody, P.C.;

Austin, Texas

Before JOHNSON, Chief Administrative Appeals Judge, and KAPLAN,

BURRELL, and KIKO, Administrative Appeals Judges; BURRELL,

Concurring in Part and Dissenting in Part

DECISION AND ORDER REVERSING AND REMANDING

This case arises under the employee protection provisions of the Clean Air

Act (the CAA) and its implementing regulations. 1 On August 29, 2023,

Administrative Law Judge (ALJ) Patrick M. Rosenow issued a Decision and Order

(D. & O.) finding that Complainant Jeffrey L. Gregory established that Respondent

Nations Cabinetry, LLC engaged in unlawful retaliation against him in violation of

the CAA. The ALJ further found that Respondent established an affirmative

defense that it would have taken the same adverse action in the absence of

42 U.S.C. § 7622; 29 C.F.R. Part 24 (2025).

Complainant’s protected activity. Because substantial evidence does not support the

ALJ’s finding as to Respondent’s affirmative defense, we reverse.

BACKGROUND AND PROCEDURAL HISTORY

In December 2017, Respondent hired Complainant to serve as Chief

Operating Officer of Nations Cabinetry. 2 Complainant’s job description indicated

that his responsibilities included “participat[ing] with the Senior Management of

the Company in creating operational strategies and communicating such strategies

to management and the ownership team” as well as “instituting systems that

provide for effective internal management.” 3 Complainant was also responsible for

“providing strategic leadership and oversight to all operations functions” and

partnering with other members of management and the Board to “ensure that

business processes are performed with the highest degree of ethics and integrity.” 4

In addition to working with other members of the senior management team,

Complainant was charged with liaising with Respondent’s corporate parent by

“provid[ing] clear communication to Miami Nation Enterprises that ensure they are

continually and accurately informed of the status of all operations at” Nations

Cabinetry. 5

Within a month of hiring Complainant, Respondent hired J.W. Coady to

serve as Chief Executive Officer. 6 Beginning early in their partnership,

Complainant expressed concerns to Coady about various operational issues. On

June 28, 2018, Complainant, at Coady’s direction, sent Coady an email laying out

eight areas of concern he had with Respondent’s operations. 7 The first three topics

related to Respondent’s compliance with state and federal environmental laws,

including the company’s unlawful operation of equipment without a required permit

and the company’s possible noncompliance with emission standards. 8 The other

areas of concern ranged from staffing and purchasing decisions to communication

between management and the plant floor. Complainant emphasized that the first

three issues relating to environmental compliance and permitting, “not only hinder

performance for myself and the plant but directly conflict with my personal and

D. & O. at 3.

RX 2 at 1 (Chief Operating Officer Job Description for BJ Tidwell Cabinetry).

Id.

D. & O. at 3.

Id.

Id.; CX 9 at 1 (Email from Jeffrey Gregory to JW Coady, dated June 28, 2018).

professional ethics.” 9 Complainant told Coady that these three issues had “a grossly

negative impact” on him. 10

In August 2018, Complainant spoke with Derek Douglas, the COO of Miami

Nation Enterprises (MNE), Respondent’s corporate parent, and expressed his

concerns about Respondent’s environmental compliance, as well as other misgivings

he had about Coady’s decisions. 11 Following this conversation, Coady called

Complainant into his office to ask whether Complainant supported him and was on

his team. 12 Complainant testified that during this conversation, Coady essentially

threatened to fire him. 13 After being threatened with termination, Complainant

ceased directly bringing up issues related to the company’s environmental

compliance and permitting obligations. 14

10F

11F

12F

13F

On March 1, 2019, Coady completed Complainant’s annual performance

review, which covered his performance during 2018. The performance review stated

that “this was a year of 2 segments. Segment 1 was very disappointing . . . .

Segment 2, after our final talk, was a strong self recalibration.” 15 The performance

review noted that Coady had seen good progress with regard to Complainant

“rebuilding trust at the senior level” but it was “a long road to rebuild.” 16

14F

15F

On March 3, 2020, Complainant attended an MNE board meeting. Before the

meeting was called to order, Peter Murphy, the CEO of MNE asked Coady about the

status of the environmental permits. Coady responded that he was working on it

but still had outstanding items to complete before the permits could be finalized. 17

When asked about the risk of running equipment without the required permit,

16F

CX 9 at 1-2.

Id. at 2.

D. & O. at 3.

Id. at 8.

Id. at 10.

Id. at 9.

CX 18 at 3 (Performance Review of Jeffrey Gregory, dated March 1, 2019). In what is

likely a typographical error, the D. & O. states that segment one covers the period from

December 2018 through May 2019, dates that are also included in Respondent’s post-trial

briefing, where they are erroneously described as “Mr. Gregory’s first six months. However,

we note that the performance review is dated March 1, 2019 and indicates that it covers

2018. Additionally, Mr. Gregory’s first six months were late December 2017 through late

June 2018, Accordingly, we view it as highly probable that “segment 1” refers to the period

from Mr. Gregory’s hire in December 2017 through the middle of 2018.

Id.

D. & O. at 8.

Coady responded that it was not a big deal and if the company got caught, they

would shut down the equipment, pay a fine, and move on. 18 Complainant was taken

aback by this exchange because Coady had previously informed him that the

company had already received preliminary approval for the equipment and was only

waiting on final paperwork from the state. 19 Complainant resolved to reach out to

MNE’s board of directors to discuss the issue and then, if necessary, reach out to

state environmental regulators. 20 While at home, Complainant shared this incident

with his wife as part of his regular practice of talking with her about workplace

issues. 21

17F

18F

19F

20F

On March 13, 2020, Complainant’s wife (hereinafter Kelly Gregory)

travelled—without Complainant’s knowledge or support—to MNE’s headquarters

and met the following day with HR Director Gena Lankford in order to talk to

Lankford about the environmental permitting issues as well as an unrelated

workplace issue. 22 During this meeting Kelly Gregory brought up a litany of other

grievances related to Coady’s management, in addition to expressing concerns

related to the environmental permit and the emissions compliance issue. 23 Kelly

Gregory also made the unsubstantiated allegation that Coady had misstated

revenues by one to two million dollars. 24 A week later, Coady and HR Director

Oscar Rodriguez called Complainant and informed him that he was being placed on

leave effective immediately for failure to protect confidential information, in

violation of his employment contract. 25 On March 31, 2020, Respondent terminated

Complainant’s employment “based on [his] unauthorized disclosure of confidential

Company information to [his] wife, Kelly Gregory, and [his] ongoing lack of support

for Nation’s management and the direction of Nation’s business operations.” 26

21F

22F

23F

24F

25F

On April 22, 2020, Complainant filed a complaint against Respondent with

the Occupational Safety and Health Administration (OSHA). OSHA investigated

the complainant and dismissed it on February 10, 2021. Complainant timely filed

Id.

Tr. 289.

D. & O. at 8.

Id.

Id. at 4; Tr. 491.

D. & O. at 4.

Id.

Id.; Ex. K to Resp. Mot. for Summ. Decision at 1-2, Gregory v. Nations Cabinetry,

LLC, ALJ No. 2021-CAA-00001 (hereinafter Resp. Mot. for Summ. Decision).

D. & O. at 4; CX 12 at 1 (Jeffrey Gregory Termination Letter, dated March 31, 2020).

an objection and request for hearing with the Department of Labor’s Office of

Administrative Law Judges.

1. Complainant’s Reporting of Environmental Compliance Issues

A. The Makor Permit

The more significant of the two issues Complainant raised regarding

Respondent’s compliance with environmental laws and regulations was the

operation of a Makor paint sprayer without the permit required by the Texas

Commission on Environmental Quality (TCEQ). The existence of this issue slightly

predates Complainant’s employment with Respondent. On November 16, 2017,

about a month before Complainant was hired, Respondent submitted a Permit

Amendment Application to TCEQ in order to operate a Makor sprayer at

Respondent’s plant located at 4600 W US Highway 90 in San Antonio, Texas. 27

Shortly thereafter, on November 30, 2017, TCEQ provided a letter to Respondent

identifying thirteen deficiencies (including 26 subparts) that needed to be corrected

before the application could be considered administratively complete. 28

26F

27F

The November 30 letter identified numerous inconsistencies with the

application and noted that “many critical representations are not current and are

inconsistent.” 29 The letter further stated that “[d]ue to the widespread nature of the

deficiencies identified in the application package,” Respondent should resubmit “an

entire stand-alone permit application package.” 30 In the letter, Respondent was

informed that a response must be provided to TCEQ by December 10, 2017, and

failure to provide a response (or providing an incomplete response) would result in

the application being voided. TCEQ’s letter was addressed to Oscar Rodriguez,

Respondent’s HR Director who was acting as the point person for the permit

application. Respondent did not timely correct the deficiencies identified by TCEQ

and on December 13, 2017, TCEQ issued Respondent a letter indicating the permit

application “has been voided and removed from the pending list.” 31 From this point

until after Complainant was terminated, Respondent operated the Makor sprayer

without the required permit.

28F

29F

30F

Complainant first learned of the voided permit in early June 2018 when he,

through a mail mix-up, received a letter from TCEQ that had been intended for

RX 11 at 1.

Id. at 3.

Id. at 1.

Id. at 3.

Ex. J to Resp. Mot. for Summ. Decision, at 4.

Rodriguez. 32 The letter—issued six months after the permit was voided—informed

Respondent that a new permit application would be required due to the amount of

time that had elapsed. 33 Complainant immediately brought this issue to the

attention of Coady and was instructed to coordinate with Rodriguez. Shortly

afterwards, on June 15, 2018, Complainant joined a call with Rodriguez and two

employees of Source Environmental Sciences, Inc. (Source Environmental), a thirdparty firm contracted by Respondent to assist with environmental compliance

issues. 34 During the call, Complainant expressed his concern that the Makor system

was not allowed to operate now that the permit application was voided. 35 It was

during this call that Complainant learned that the permit application had been

voided more than six months, on December 13, rather than only a few days before. 36

After Complainant and the Source Environmental consultants discussed and ruled

out possible authorizations under which the Makor system could be operated,

Rodriguez asked what the ramifications would be if Respondent continued

operating the Makor system without a permit. 37 Rodriguez mentioned that a

company he had previously worked at only received a letter of noncompliance in

response to a similar issue. One of the consultants explained that “my experience is

that when you operate without authorization, that’s a serious issue.” 38 At the

conclusion of the call, Rodriguez suggested including Complainant in all

communications between Respondent and Source Environmental going forward in

order to help expediate the process of completing and resubmitting the permit

application. 39

31F

32F

33F

34F

35F

36F

37F

38F

Later that day, Complainant and Rodriguez called Coady to provide him with

an update on the permit application. During this call, Complainant informed Coady

that “we’re in a position where we shouldn’t [be] running the Makor, because it’s not

permitted.” 40 Complainant explained that even if an application could be

39F

Tr. 263.

Id.

Id. at 270.

CX 15 at 8-9 (June 15, 2018 Audio Transcript).

Id. at 11.

Id. at 13.

Id.

Id. at 19 (“I think that we make it a habit of including Jeff. This way, whether I’m

available or not, Jeff is available.”).

Ex. F to Resp. Mot. for Summ. Decision at 23 (June 15, 2018 Audio Transcript). One

June 15 recording between Complainant, Rodriguez, and Source Environmental was

submitted to the ALJ at hearing. CX 15. A second June 15 recording between Complainant,

Rodriguez, and Coady was submitted by Respondent as an exhibit to its motion for

resubmitted, there were multiple 30-day notice and comment and waiting periods

that had to transpire before an interim permit would be issued, at which point the

Makor sprayer could be lawfully operated again. 41 Coady asked if that meant that

“tactically [sic] we’ve been running the Makor noncompliant,” which Complainant

confirmed was the case. 42 Coady informed Complainant and Rodriguez that not

running the Makor system was a “showstopper” and his priority was to “minimize

any kind of time we’re noncompliant.” 43 After Coady left the call, Complainant and

Rodriguez continued to discuss the possibility of running the Makor sprayer without

the required permits:

40F

41F

42F

Complainant: At the end of the day, it’s the question I

asked you and George on the phone. “Can I run the Makor?

Yes or no”. At the end of the day, that’s the piece. It’s up to

you and Roger and Chris and George to keep us compliant.

I just want to know, “Can we run?”

Rordriguez: The answer to that is yes. Can you run? Sure

you can.

Complainant: Well, not compliant, I can’t now.

Rodriguez: But that’s not what you asked. You asked, ‘Can

I run?’

Complainant: Okay, let me say, ‘Can I legally run?’ That’s

the question. That’s just a question for I guess all of us to

weigh in on. But at the end of the day, that’s all I was trying

to figure out.[ 44]

43F

Five days later, on June 20, 2018, Complainant emailed Coady to check on

the status of the permit application and let Coady know that he was “increasingly

uncomfortable continuing to run the way we are without consent.” 45 This exchange

44F

summary decision. Ex. F, of Resp. Mot. for Summ. Decision. Both parties acknowledged at

hearing that Ex. F was part of the record and available for review. See Tr. 273, 340-41.

Id.

Id. at 24.

Id. Both Gregory and Coady testified that, during this call, Coady said that not

running the Makor would be a “showstopper.” D. & O. at 7-9; see also Tr. 51 (Coady

testimony), 270 (Gregory testimony).

Ex. F to Resp. Mot. for Summ. Decision at 29-30.

CX 11 (Email from Jeffrey Gregory to JW Coady about the Makor, dated June 20,

2018).

occurred just a week before Complainant emailed Coady on June 28 with his list of

workplace concerns. The first issue on that list was a lack of trust with HR based on

“the significant lack of integrity shown by the HR manager” who he alleged was

allowed “to conduct business with a completely different set of ethics, or lack

thereof, than the rest of the organization.” 46 In his testimony, Complainant

explained that this lack of trust related to the environmental issues. 47 The second

issue on Complainant’s list was the Makor sprayer, which he stated was

“[c]urrently running illegally[.]” 48 Complainant explained that running the Makor

sprayer without a permit “has significant legal implications,” and that he had to

“reach out continuously” to find out the status of the permit application even though

he was responsible for the Makor equipment. 49

45F

46F

47F

48F

On July 13, 2018, TCEQ sent Respondent a letter indicating that it had

received a new Permit Amendment Application, which was under review. The letter

included eighteen issues (including 31 total subparts) that needed to be addressed

before the application could be considered administratively complete. 50 As with

earlier deficiency notices from TCEQ, the letter stated that the application

contained “numerous inconsistent representations” and that “[d]ue to the

widespread nature of the deficiencies identified in the application package

submitted,” Respondent should resubmit an entire stand-alone permit application

package. 51 The letter gave Respondent ten days to address the deficiencies in its

application. Respondent failed to correct all of the deficient items in time and on

August 6, 2018, TCEQ sent a letter to Respondent informing it that “the deficient

items were not corrected and accordingly the application . . . has been voided and

removed from the pending list.” 52

49F

50F

51F

In August 2018, after being rebuffed when he asked for additional status

updates from Rodriguez and Coady, Complainant spoke with Derek Douglas, the

chief operating officer of MNE. 53 Complainant informed Douglas of the letters from

TCEQ and that the Makor was running without a permit. 54 Complainant testified

52F

53F

CX 9 at 1.

Tr. 356. Complainant testified that he “did not trust HR, specifically Oscar

Rodriguez, to negotiate through that to get it done so [Respondent] could be in good

standing with TCEQ and EPA[.]”

CX 9 at 1.

Id.

CX 4 at 1 (Letter from TCEQ to Oscar Rodriguez, dated July 13, 2018).

Id. at 1-3.

CX 2 at 1 (Letter from TCEQ to Oscar Rodriguez, dated August 6, 2018).

Tr. 279.

Id.

that shortly after this conversation, Coady called Complainant into his office and

asked Complainant whether he supported him and was on his team. Coady also told

Complainant that Douglas had suggested terminating him, which Complainant

understood as a threat. 55 After this conversation, Complainant periodically emailed

Coady and Rodriguez to ask about the status of the permanent application but

otherwise stopped bringing it up. 56 Complainant testified that towards the end of

2019 Rodriguez informed him that TCEQ had granted a preliminary approval and

the company was only waiting on documents at that point. 57 Contrary to what

Rodriguez was telling Complainant, however, during this period TCEQ sent

multiple letters to Respondent outlining deficiencies with the re-submitted permit

application; it would be years before a permit was issued. 58

54F

55F

56F

57F

Neither Rodriguez nor Coady provided Complainant with any further

substantive updates about the status of the permit application process prior to the

March 2020 board meeting during which Complainant overheard Coady updating

MNE CEO Peter Murphy about the permit’s status. 59 Coady testified that the news

that the permit application had not yet been submitted, coupled with what he

viewed as Coady’s attempt to mislead Murphy about the severity of the issue, made

him sick and left him ”deflated.” 60

58F

59F

B. Volatile Organic Compound (VOC) Emission Limits

The other environmental compliance issue that Complainant raised with

Respondent’s management was the calculation of volatile organic compound (VOC)

emission figures and the company’s compliance with regulations governing the

release of VOCs. Complainant testified that he became aware in January 2018 that

the VOC emission calculations the company included in its permits applications

were wrong. 61 Complainant learned about this when he pulled the air permits for

both of Respondent’s locations as part of a standard assessment he was

60F

Tr. 279-81.

D. & O. at 9.

Tr. 289.

CX 3 (Letter from TCEQ to Oscar Rodriguez, dated October 12, 2018). These letters

were dated October 12, 2018; November 28, 2018; and January 4, 2019. A final permit was

granted on April 12, 2021.

Tr. 304-06.

Tr. 305-08.

Tr. 254-62. Respondent contends that Complainant’s calculations were wrong and

that Respondent, with the aid of its third-party compliance consults, properly calculated

VOC emission rates. Because raising the issue is itself protected activity, it is not necessary

for us to resolve this disagreement over whether Complainant or Respondent’s calculations

were accurate.

conducting. 62 In the permits for the Timco plant, Respondent provided VOC

emission calculations based on an eight-hour day with a run time of roughly seven

hours per day. Despite what was included in the permits, the company was running

VOC-releasing equipment 16 hours per day. 63 Complainant identified the same

issue in the permit for the Highway 90 plant. 64 The result of running machinery

significantly longer than the time specified in the permits was that each plant had

VOC emissions that were—by Complainant’s calculations—“significantly higher

than the allowable emissions that were identified on [the] permit.” 65

61F

62F

63F

64F

Complainant initially raised this issue with Rodriguez, believing the error

with the calculations to be an oversight. 66 However, Rodriguez rebuffed

Complainant, questioning why he was looking into this at all, given that

environmental compliance was Rodriguez’ responsibility. 67 Following this,

Complainant brought his concerns to Coady, who instructed Complainant to further

investigate the matter, including by visiting TCEQ’s office in Houston to obtain

historic permit documents. 68 After digging into the issue at Coady’s direction,

Complainant reported his findings to Coady but found that Coady’s demeanor had

shifted. Coady appeared less interested in looking into the issue or hearing what

Complainant had been able to uncover, instead telling Complainant that resolving

any environmental issue was the responsibility of the company’s third-party

environmental compliance consultants. 69

65F

66F

67F

68F

In the June 28, 2018 email concerning workplace concerns, the third issue

Complainant identified was the errors regarding VOC emission calculations. 70

Complainant stated that the calculations he performed indicated that Respondent

was “grossly out of compliance in both Timco and the main plant” and that his

“efforts to bring this information forward so it can be corrected appeared to be

dismissed.” 71 Complainant pointed out that Texas had “several open environmental

regulatory compliance pressures,” which added to his concern. 72 Similarly, when

69F

70F

71F

Tr. 254-55.

Tr. 255.

Id.

Id. at 258.

D. & O. at 9; Tr. 258.

Tr. 261.

Tr. 262.

CX 9 at 1.

Id.

Complainant spoke to Derek Douglas at MNE, he walked Douglas through his

calculations on the VOCs and explained why he believed the plants were operating

well above allowable emission levels. 73 After their conversation, Complainant did

not hear back from Douglas on this topic. 74 As with the Makor permit, this issue

resurfaced when Kelly Gregory travelled to MNE headquarters and mentioned it to

Lankford.

72F

73F

2. Complainant’s Relationship with Coady

Throughout Complainant’s employment with Respondent, there was a degree

of tension between Complainant and Coady. Although Complainant’s

outspokenness regarding the Makor permit and the VOC calculations explains some

of this friction, the record is clear that the two executives butted heads on a variety

of topics unrelated to Complainant’s protected activity. Complainant testified that

his disagreements with Coady, other than those relating to environmental

compliance, included:

•

The timing and rollout of the company’s new DreamCraft line of cabinets;

Coady’s demeanor and Coady’s decisions related to equipment investment;

How to handle freight in the warranty budget; and

Coady’s practice of providing floor workers with contradictory or confusing

directions. 75

74F

As the ALJ noted, this testimony was consistent with the June 28, 2018

email in which Coady, after identifying the environmental compliance issues, also

identified (i) staffing decisions, (ii) purchasing decisions, (iii) communications given

to shop floor workers; (iv) a lack of orders; and (v) the overextension of operations

teams resources as sources of workplace stress for him. 76 Coady’s testimony, too,

indicates that there was disagreement between Coady and Complainant on issues

such as purchasing decisions, hiring decisions, and the decision to launch the

DreamCraft furniture line. 77

75F

76F

In March of 2019, Coady provided Complainant with his first and only

performance review. The performance review covered 2018 and gave Complainant a

6 out of 10 as his overall rating. This overall score belied both Complainant’s

underperformance during the first part of 2018 and the improvement that

Complainant exhibited in the second half of the year. Multiple sections of the

Tr. 279.

Id.

D. & O. at 17.

CX 9 at 1-2.

Tr. 46.

performance review, including “Functional Knowledge and Skills,” “Building Trust,”

and “Collaboration” emphasized that Complainant had a disappointing first half of

the year and a better second half. 78 Coady’s final comments in the rating section

further emphasized this point. Coady wrote:

77F

Jeff, this was a year of 2 segments. Segment 1 was very

disappointing. Its (sic) central theme was your way or no

way. This drove dissension across the team; polarized

people into varying camps and put you at odds with senior

management and the Board. . . . Segment 2, after our final

talk, was a strong self recalibration. You committed to

rebuilding trust at the senior level and addressing divides

in the business. I have seen good progress made in this

regard but it’s a long road to rebuild.[ 79]

78F

Although the performance review itself does not specify what behaviors

Complainant changed or which disagreements Complainant learned to keep quiet

about between the first and second half of 2018, Complainant testified that “the

only thing [he] changed” from the first half of the year to the second half was

becoming “much more careful” about what he said relating to the Makor permit and

other environmental compliance issues. 80 Complainant also testified that, in

contrast to his change in approach when it came to the environmental issues, he

continued to bring up his concerns about the DreamCraft line, his concerns about

Coady’s response to a ransomware attack, and other disagreements. 81 One incident

from the second part of 2018 that stands out occurred toward the end of the year

when Coady unveiled the DreamCraft furniture line to a team of sales people. The

unveiling did not go well and afterwards, Coady went to Complainant’s office and

began verbally attacking him, at one point getting inches from his face. 82

79F

80F

81F

3. Complainant’s Termination

On March 13, 2020, the week after the board meeting during which

Complainant heard Coady talking to Murphy about the Makor permit application,

CX 18 at 1-2. The comments in these sections included: “1st half was very

disappointing … [y]ou made a commitment to me in July that I accepted, I want to see the

current path continue;” “1st half of year you had a lot of missed opportunity to be a valued

resourced to the team;” and “Team is on a nice pace right now . . . [e]arly direct style was

heavily biased to your way and your team.”

Id. at 3.

Tr. 293.

Tr. 293-94.

D. & O. at 11; Tr. 303-04.

Complainant’s wife traveled—without Complainant’s knowledge or approval—to

MNE’s headquarters in Oklahoma. 83 When she arrived at MNE’s offices, Kelly

Gregory requested to meet with HR Director Lankford the following day. During

this meeting, Kelly Gregory shared a number of grievances she had with Coady and

Rodriguez. These complaints related to Coady’s handling of a ransomware attack,

Coady’s decision not to invest in equipment upgrades, Rodriguez’s lack of

qualifications, Coady’s hiring decisions, and the calculation of warranty revenue. 84

Specifically, Kelly Gregory alleged that Coady may have been overreporting

warranty revenue by as much as $1 million. 85 Kelly Gregory also talked to Lankford

about Coady and Rodriguez’s handling of the Makor permit and the VOC emissions

calculation. Kelly Gregory told Lankford that the exchange between Coady and

Murphy at the March 2020 board meeting—specifically her husband’s distress over

the exchange—was “what got [her] to the point [of] just showing up” at MNE’s

headquarters. 86

82F

83F

84F

85F

Six days later, Coady informed Complainant that he was suspended

indefinitely, effective immediately. Coady told Complainant that the suspension

was for “failure to protect and support privileged and confidential meeting

contained in a closed door board meeting . . . in violation of [his] signed employment

contract.” 87 On March 31, 2020, Respondent terminated Complainant’s

employment. In a letter to Complainant, Respondent stated that the decision to

terminate Complainant was “based on your unauthorized disclosure of confidential

Company information to your wife, Kelly Gregory, and your ongoing lack of support

for Nation’s management and the direction of Nation’s business operations.” 88

86F

87F

On April 22, 2020, Complainant filed a complaint with the Occupational

Safety and Health Administration (OSHA) alleging that he was retaliated against

in violation of the CAA. On February 10, 2021, OSHA dismissed the complaint.

Complainant timely objected and requested a hearing before the Department of

Labor’s Office of Administrative Law Judges (OALJ). Respondent filed a Motion for

Summary Decision, arguing that (1) neither Kelly Gregory’s independent

communications nor Complainants internal complaints could constitute protected

activity under the CAA; (2) there was no genuine issue of material fact as to

whether Complainant’s communications played any role in the decision to

D. & O. at 4.

D. & O. at 19; RX 10.

D. & O. at 18; RX 10.

RX 10 at 11 (Transcript of Conversation Between Kelly Gregory and Gena Lankford,

dated March 14, 2020).

Ex. K to Resp. Mot. for Summ. Decision at 2; D. & O. at 4.

CX 12 at 1.

terminate him; and (3) there was no genuine issue of material fact as to whether

Respondent would have taken the same adverse action even in the absence of

Complainant’s protected activity. 89

88F

The ALJ granted, in part, the Motion for Summary Decision, dismissing the

complaint insofar “as it relates to any alleged protected activity by Complainant’s

spouse.” 90 The ALJ rejected Respondent’s argument regarding internal

communications and the lack of genuine issues of material fact. Subsequently, the

ALJ held a two-day hearing and issued a decision finding that Complainant had

established that Respondent violated the CAA’s employee protection provisions by

proving that protected activity was a motivating factor in Respondent’s decision to

terminate Complainant’s employment, but Respondent had proven its affirmative

defense that it would have taken the same adverse action in the absence of

Complainant’s protected activity. 91 Complainant timely appealed the ALJ’s decision

to the Board.

89F

90F

On appeal, Complainant argues that the ALJ erred when he found that

Respondent satisfied its burden of proving, by a preponderance of the evidence, that

Respondent would have taken the same adverse action even in the absence of

Complainant’s protected activity. 92 We agree.

91F

Respondent did not file a cross-appeal but nonetheless argues that the ALJ

erred when he held that Complainant’s internal complaints constitute protected

activity under the CAA. 93 We disagree.

92F

Resp. Mot. for Summ. Decision.

Order on Respondent’s Motion for Summar Decision and Complainant’s Motion to

Strike at 6, Gregory v. Nations Cabinetry, LLC, ALJ No. 2021-CAA-00001 (ALJ Nov. 8,

2021).

D. & O. at 20-21.

Comp. Br at 21.

Ordinarily, the Board adheres to the principle that a “party who neglects to file a

cross appeal may not use his opponent’s appeal as a vehicle for attacking a final judgment

in an effort to diminish the appealing party’s rights thereunder.” Booker v. Exelon

Generation Co., LLC, ARB No. 2022-0049, ALJ No., 2016-ERA-00012, slip. op at 18-19

n.134 (ARB Sept. 21, 2023). However, in light of the legal question raised concerning the

scope of protected activity under the CAA, the Board has proceeded to address the issue.

See Booker, ARB No. 2022-0049, slip. op at 18-19 n.134 (addressing legal issue that a party

raised without filing a cross-appeal); see also Avlon v. Am. Express Co., ARB No. 2009-0089,

ALJ No. 2008-SOX-00051, slip op. at 5 (ARB Sept. 14, 2011) (Order Denying

Reconsideration) (“While issues . . . may be considered waived, courts can exercise

discretion to ‘consider waived arguments’ when it is ‘necessary . . . or where the argument

presents a question of law . . . .’”) (citations omitted).

JURISDICTION AND STANDARD OF REVIEW

The Secretary of Labor has delegated authority to the Board to hear appeals

from ALJ decisions and to issue agency decisions in cases arising under the CAA. 94

In CAA cases, the Board reviews questions of law presented on appeal de novo and

reviews the ALJ’s factual findings under a substantial evidence standard. 95

Substantial evidence is “such relevant evidence as a reasonable mind might accept

as adequate to support a conclusion.” 96

93F

94F

95F

DISCUSSION

1. Clean Air Act Legal Standards

Under the CAA’s employee protection provisions, an employer may not

“discharge any employee or otherwise discriminate against any employee with

respect to his compensation, terms, conditions, or privileges of employment because

the employee” engaged in protected activity. 97 To prevail in a retaliation case under

the CAA, a complainant must prove by a preponderance of the evidence that they

engaged in protected activity and that the protected activity was a motivating factor

in the adverse employment action taken against them. 98 If a complainant meets

this burden of proof, the respondent may avoid liability if it proves by a

preponderance of the evidence that it would have taken the same adverse action in

the absence of the complainant’s protected activity. 99

96F

97F

98F

2. Complainant’s Protected Activity

On appeal, Respondent argues that Complainant’s alleged protected activity

is best characterized as “internal complaints” and that such complaints do not

constitute protected activity under the CAA. 100 Respondent raised the same

99F

Secretary’s Order No. 01-2020 (Delegation of Authority and Assignment of

Responsibility to the Administrative Review Board), 85 Fed. Reg. 13,186 (Mar. 6, 2020).

Fagan v. Dep’t of the Navy, ARB No. 2023-0006, ALJ No. 2021-CER-00001, slip op.

at 6 (ARB Feb. 28, 2024); 29 C.F.R. § 24.110(b) (“The ARB will review the factual findings

of the ALJ under the substantial evidence standard.”).

Jones v. Exclusive Jets, LLC, ARB No. 2023-0034, ALJ No. 2022-AIR-00003, slip op.

at 9 (ARB Dec. 31, 2024) (quoting Mazenko v. Pegasus Aircraft Mgmt., ARB No. 2021-0032,

ALJ No. 2019-AIR-00001, slip op. at 10 (ARB June 18, 2024) (quoting Universal Camera

Corp. v. NLRB, 340 U.S. 474, 477 (1951))).

42 U.S.C. § 7622(a).

29 C.F.R. § 24.109(b)(2).

Id.

100

Respondent’s Brief (Resp. Br.) at 6.

argument in its motion to dismiss filed below. Respondent argued that “under the

caselaw of the Fifth Circuit, the statutory language of the Clean Air Act still

excludes internal complaints from the scope of protected activity.” 101 In his Order

on Respondent’s Motion for Summary Decision and Complainant’s Motion to Strike

(Order on Summary Decision), the ALJ rejected this argument, noting that the

Secretary of Labor and the Administrative Review Board have “consistently issued

decisions recognizing internal complaints as protected activity.” 102 The ALJ further

noted that this view is the one that Circuit Courts have “almost unanimously”

adopted. 103

100F

101F

102F

Respondent now asks us to find that the ALJ erred on this issue and, as a

result, Complainant did not engage in protected activity and cannot prove a prima

facie case of unlawful retaliation. As this is a pure question of law, we review the

ALJ’s decision de novo.

The statutory text of the Clean Air Act makes it unlawful to retaliate against

an employee because the employee has:

(1) commenced, caused to be commenced, or is about to

commence or cause to be commenced a proceeding under

this chapter or a proceeding for the administration or

enforcement of any requirement imposed under this

chapter or under any applicable implementation plan,

(2) testified or is about to testify in any such

proceeding, or

(3) assisted or participated or is about to assist or

participate in any manner in such a proceeding or in any

other action to carry out the purposes of this chapter.[ 104]

103F

Neither the statute nor its implementing regulations define “proceeding” or “any

other action to carry out the purposes of this chapter.” Nonetheless, the Secretary of

Labor, the Administrative Review Board, and the federal courts have all interpreted

these terms broadly such that they cover intracorporate or other “internal”

101

Resp. Mot. for Summ. Decision. at 2.

Order on Respondent’s Motion for Summary Decision and Complainant’s Motion to

Strike at 6, Gregory v. Nations Cabinetry, LLC, ALJ No. 2021-CAA-00001 (ALJ Nov. 8,

2021).

102

103

Id.

104

42 U.S.C. § 7622(a); see also 29 C.F.R. § 24.102(b).

complaints relating to public health or the environment. 105 We have recognized that

“proceeding” “encompasses all phases of a proceeding that relate to public health or

the environment, including the initial statement of the employee that points out a

violation, whether or not it generates a formal or informal ‘proceeding’.” 106

104F

105F

Federal courts have taken the same view as the Secretary and the

Administrative Review Board. In one decision analyzing identical language in the

Clean Water Act, the Third Circuit recognized that the Secretary’s interpretation of

“proceeding” to cover intracorporate complaints “gives effect to the intent of

Congress.” 107 In another decision involving then-identical 108 language from the

Energy Reorganization Act (ERA), the Eleventh Circuit observed that, other than

the Fifth Circuit, every circuit to address the scope of protected activity under the

environmental statutes “has agreed with the Secretary’s interpretation that . . .

when an employee makes informal complaints, such acts constitute protected

activity.” 109

106F

107F

108F

In support of its claim that internal complaints are not protected under Fifth

Circuit case law, Respondent cites a single decision: Macktal v. U.S. Department. of

Labor, an ERA case decided in 1999. 110 The Fifth Circuit’s decision in Macktal was

based on Brown & Root v. Donovan, an earlier decision in which the Fifth Circuit

held that the ERA as then written did not protect purely internal reports. 111

Respondent’s reliance on Macktal and Brown & Root is misplaced. We have

109F

110F

See generally Iwaseczko v. Teton Cnty. Weed & Pest Control Dist., ARB No. 20220059, ALJ Nos. 2018-ACA-00001, 2019-ACA-00002, slip op. at 19-22 (ARB Aug. 14, 2025)

(discussing how the concept of a “proceeding” in whistleblower protection statutes has

evolved over time).

105

Sasse v. Off. of the U.S. Att’y, U.S. Dep’t of Just., ARB No. 2002-00077, ALJ No.

1998-CAA-0007, slip op. at 11 (ARB Jan. 30, 2004) (citation omitted).

106

107

1993).

Passaic Valley Sewerage Comm’rs v. U.S. Dep’t of Lab., 992 F.2d 474, 480 (3d Cir.

In 1992, Congress passed the Energy Policy Act, which amended the ERA to clarify

that it protects whistleblowers who make internal complaints. See Stone & Webster Eng’g

Corp. v. Herman, 115 F.3d 1568, 1576 (11th Cir.1997) (“The legislative history of the 1992

Energy Policy Act, too, makes clear that Congress intended the amendments to codify what

it thought the law to be already. Congress sought “to explicitly provide whistleblower

protection for nuclear industry employees [who] (1) notify their employer of an alleged

violation rather than a federal regulator.””).

108

109

Bechtel Const. Co. v. Sec’y of Lab., 50 F.3d 926, 931 (11th Cir. 1995).

110

Resp. Br. at 14-15 (citing Macktal v. U.S. Dep’t of Lab., 171 F.3d 323 (5th Cir. 1999)).

Brown & Root, Inc. v. Donovan, 747 F.2d 1029, 1035 (5th Cir. 1984) (“The structure

of the ERA indicates that section 5851 is designed to protect “whistle blowers” who provide

information to governmental entities, not to the employer corporation.”).

111

previously recognized that “Brown & Root is applicable only to the ERA and did not

purport to interpret” the Clean Air Act or the other environmental whistleblower

laws under which the Board issues final decisions. 112 Additionally, after Brown &

Root was decided, Congress passed the 1992 Energy Policy Act, which amended the

ERA to explicitly cover intracorporate complaints. The Fifth Circuit has

acknowledged that, by passing this amendment, “Congress clarified by statute that

Brown & Root was incorrect in holding that complaints to employers were not

protected under 42 U.S.C. § 5851.” 113 Other circuits have also recognized that the

legislative history of the 1992 Energy Policy Act “makes clear that Congress

intended the amendments to codify what it thought the law to be already.” 114

111F

112F

113F

Put simply, the Fifth Circuit’s Brown & Root line of cases neither applies to

the Clean Air Act, nor does it remain good law following Congress’ 1992

amendments to the ERA. Respondents do not cite, nor have we found, any more

recent decision in which the Fifth Circuit adhered to its previous view regarding the

scope of protected activity under either the ERA or the CAA. When Complainant

repeatedly raised concerns to Rodriguez, Coady, and Douglas about the company

operating the Makor sprayer without the required permit and the miscalculation of

VOC emissions, his actions fell squarely within the scope of protected activity under

the CAA.

3. Respondent’s Affirmative Defense

The central issue on appeal is whether substantial evidence supports the

ALJ’s finding that Respondent would have taken the same adverse action against

Complainant even in the absence of his protected activity. 115 In his decision, the

114F

Willy v. Coastal Corp., ALJ No. 1985-CAA00001, slip op. at 7, 1994 WL 897203

(Sec’y June 1, 1994).

112

Willy v. Admin. Rev. Bd., 423 F.3d 483, 489 n.11 (5th Cir. 2005); see also Stone &

Webster Eng’g Corp., 115 F.3d at 1576 (“Congress sought ‘to explicitly provide

whistleblower protection for nuclear industry employees [who] (1) notify their employer of

an alleged violation rather than a federal regulator.’”) (quoting H.R. No. 102–474(VIII), at

78, reprinted in 1992 U.S.C.C.A.N.1953, 2282, 2296).

113

Stone & Webster Eng’g Corp., 115 F.3d at 1576 (“The legislative history of the 1992

Energy Policy Act, too, makes clear that Congress intended the amendments to codify what

it thought the law to be already.”).

114

See 29 C.F.R. § 24.109(b)(2). In his discussion of Respondent’s affirmative defense,

the ALJ correctly stated the required legal showing that a respondent must make: to prove

by a preponderance of the evidence that the respondent would have taken the same adverse

action in the absence of the complainant’s protected activity. Although we have frequently

referred to this as a “same action” defense, the ALJ refers to this as an “inevitable adverse

action” defense. We point this out because there are circumstances where the inquiry into

whether an adverse action was inevitable and the inquiry into whether a respondent would

have taken the adverse action in the absence of protected activity are not identical.

115

ALJ considered Respondent’s various explanations of why it terminated

Complainant, all of which Respondent argued would have led them to terminate

Complainant even in the absence of his protected activity. The ALJ concluded that

three of the reasons proffered by Respondent were not credible. 116 Specifically, the

ALJ rejected Respondent’s arguments that it would have terminated Complainant

because of (i) a March 2020 incident in which he used the word “crap” in an office

email; (ii) an April 2018 incident in which Complainant either tapped or kicked

another employee from behind; and (iii) Complainant’s regular disclosure of

confidential information to his wife. 117 Nonetheless, the ALJ concluded that a

fourth explanation proffered by Respondent—that Complainant failed to support

Coady and respect his authority as the company’s final decision maker—was

corroborated by the evidence and sufficient for Respondent to carry its burden of

proving an affirmative defense. 118 We review this finding under a substantial

evidence standard.

115F

116F

117F

As the Supreme Court has stated, “[s]ubstantial evidence is more than a

mere scintilla. It means such relevant evidence as a reasonable mind might accept

as adequate to support a conclusion.” 119 Under this standard, the ”threshold for

such evidentiary sufficiency is not high.” 120 Additionally, when reviewing decisions

under a substantial evidence standard, the Board is precluded from “deciding the

facts anew, making credibility determinations, or re-weighing the evidence.” 121

118F

119F

120F

The Board is not, however, required to put on blinders and look only at the

evidence that supports the ALJ’s decision. As the Supreme Court has recognized, a

determination as to whether a decision is supported by substantial evidence must

“take into account whatever in the record fairly detracts from its weight.” 122

We have also made clear that a “single piece of evidence will not satisfy the

substantiality test if the [adjudicator] ignores, or fails to resolve, a conflict created

121F

Nonetheless, reviewing the decision as a whole, we are satisfied that the ALJ applied the

correct legal standard when analyzing Respondent’s same action affirmative defense.

116

D. & O. at 12-16.

117

Id.

118

Id. at 17-20.

119

Consol. Edison Co. of New York v. NLRB, 305 U.S. 197, 229 (1938).

120

Biestek v. Berryhill, 587 U.S. 97, 103 (2019).

Stone & Webster Const., Inc. v. U.S. Dep’t of Lab., 684 F.3d 1127, 1133 (11th Cir.

2012) (quoting Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005)).

121

Bobreski v. J. Givoo Consultants, Inc., ARB No. 2009-0057, ALJ No. 2008-ERA00003, slip op. at 8-9 (ARB June 24, 2011) (quoting Universal Camera Corp., 340 U.S. at

488).

122

by countervailing evidence.” 123 Additionally, we have recognized that “evidence is

not substantial if it is overwhelmed by other evidence or if it really constitutes mere

conclusion.” 124 Lastly, although the threshold for evidentiary sufficiency under this

standard of review is not high, a reviewing court need not have a “definite and firm

conviction” that an error has been committed in order to reverse. 125

122F

123F

124F

In his analysis of Respondent’s affirmative defense, the ALJ made conclusory

statements without reference to any evidence that could support such conclusions,

based his determination largely on two short answers provided during the hearing,

and failed to consider overwhelming countervailing evidence. Accordingly, we find

that the ALJ’s conclusion that “[h]ad Complainant never mentioned the Makor

permit, but engaged in the remainder of his actions, the outcome would have been

the same” is not supported by substantial evidence. 126

125F

A. The ALJ Failed to Consider Respondent’s Shifting Explanations for

Complainant’s Termination

As detailed in the ALJ’s decision, Respondent now offers four different

explanations as to why it decided to terminate Complainant. Not all of these

reasons were provided at the outset, however. On March 20, 2020, when Coady

called Complainant into his office and suspended him, Coady told Complainant that

he was being suspended for failing to “protect and support privileged and

confidential information” in violation of [his] signed employment contract. 127

During this initial conversation, Coady provided no other justification for the

suspension. About two weeks later, Respondent provided Complainant with a

termination letter that reiterated that his termination was based on his

unauthorized disclosure of confidential information and added a second reason:

Complainant’s ongoing lack of support for the company’s management and the

direction of its business operations. 128 Only a month letter, in a letter to the Texas

Workforce Commission in response to Complainant’s application for unemployment

benefits, additional justifications emerged. This letter, which was written by

Rodriguez, mentioned the 2018 incident in which Complainant either kicked or

tapped a coworker, Complainant’s more recent use of the word “crap” in an email

126F

127F

Bobreski, ARB No. 2009-0057, slip op at 9 (quoting Dorf v. Bowen, 794 F.2d 896, 901

(3d Cir. 1986)).

123

Bobreski, ARB No. 2009-0057, slip op. at 8 (quoting Dalton v. U.S. Dep’t of Lab., 58

F. App’x 442, 445 (10th Cir. 2003)).

124

See Dickinson v. Zurko, 527 U.S. 150, 162 (1999) (contrasting the substantial

evidence standard with the clearly erroneous standard of review).

125

126

D. & O. at 20.

127

Ex. K to Resp. Mot. for Summ. Decision.

128

CX 12 at 1.

exchange, the accusations Kelly Gregory made to Lankford, and Complainant’s

“proclivity to disclose [the] Company’s confidential and propriety information.” 129

The letter concluded that Complainant’s termination was due to his “negligent

disclosure and release of confidential business information, mismanagement of his

position, false allegations of fraud, and past misconduct and transgressions.” 130 The

letter made absolutely no mention of Complainant’s alleged failure to support

Coady. Although not a record produced by the Company, OSHA conducted an

investigation of Complainant’s claim and determined that “Respondent’s decision to

terminate Complainant’s employment was because Complainant improperly

disclosed confidential business information to his wife.” 131

128F

129F

130F

In its post-hearing brief, Respondent cited each of the foregoing reasons as

justifications for why it terminated Complainant (and as reasons why it would have

terminated Complainant even in the absence of his protected activity). 132

Respondent’s focus, however, was on Complainant’s purported breaches of

confidentiality which it described as “wide-ranging” and “most egregious[].” 133

131F

132F

The ALJ rejected the first three proferred reasons (the tap/kick, the cursing

incident, and the breaches of confidentiality) as wholly lacking in credibility. 134

We give ALJ credibility determinations “great deference” and rely on them unless

they are “inherently incredible or patently unreasonable.” 135 Here, the ALJ found

that “[n]either Coady nor Rodriguez were particularly credible in their testimony

about” cursing in the workplace. 136 Similarly, when considering testimony from

both Rodriguez and the employee who was allegedly kicked, the ALJ found that

“Rodriguez’s testimony is inconsistent” with that of the employee who was kicked

and, to the extent the two accounts of the tap/kick differed, the other witness’

account was more credible. 137 Most damningly, the ALJ found that it “appears

133F

134F

135F

136F

129

Ex. D-7 To Comp. Response to Resp. Mot. for Summ. Decision.

130

Id.

Sec’y’s Findings, Case #6-1550-20-062, Occupational Safety and Health Admin. (Oct.

18, 2021).

131

132

Resp. Post-Hearing Br. at 13-19.

133

Id. at 13, 19; Resp. Mot. for Summ. Decision at 12.

134

D. & O. at 13, 15, 16.

See, e.g., Cottier v. Bayou Concrete Pumping, LLC, ARB No. 2020-0069, ALJ No.

2019-STA-00046, slip op. at 15 (ARB Jan. 18, 2022); Kanj v. Viejas Band of Kumeyaay

Indians, ARB No. 2012-0002, ALJ No. 2006-WPC-00001, slip op. at 6 (ARB Aug. 29, 2012)

(quoting Caldwell v. EG&G Def. Materials, Inc., ARB No. 2005-0101, ALJ No. 2003-SDW00001, slip op. at 12 (ARB Oct. 31, 2008)).

135

136

D. & O. at 13.

137

Id. at 14.

much more likely that” that both the kicking incident and the reprimand for using

the word “crap” were “opportunity[ies] to build a case against Complainant.” 138

Although the ALJ did not find Coady or Rodriguez’s testimony about confidentiality

issues to be particularly incredible, he noted that both Coady and Rodriguez

testified that during Complainant’s employment the Company did not have a formal

policy about confidential information. 139 The ALJ further determined that Coady

understood that Complainant and his wife discussed business-sensitive information

and Coady even had conversations with Complainant about matters involving

confidential information “with the knowledge, if not the intent, that Kelly Gregory

was present.” 140

137F

138F

139F

Despite finding that multiple explanations put forward by Respondent were

incredible, the ALJ made no mention of how Respondent’s proffered explanations

shifted over time. In the context of determining causation, we have held that

“shifting explanations for an employer’s adverse action often indicate that its

asserted legitimate reasons are pretext. 141 We have made the same observation

when it comes to an employer’s same action defense. 142 Courts have similarly

recognized that “the fact that an employer offers shifting explanations for its

challenged personnel action can itself serve to demonstrate pretext.” 143 In one case

that was affirmed by the Fifth Circuit, we affirmed an ALJ decision finding pretext

when an employer gave shifting reasons for its termination of a complainant

starting with its first filing with the Texas Workforce Commission just a few weeks

after the employee’s termination. 144

140F

141F

142F

143F

When Coady, acting at the behest of MNE CEO Peter Murphy, suspended

Complainant, Coady stated that the suspension (which would quickly segue into a

termination) was being imposed because Complainant failed to protect confidential

information. Before long, that straightforward explanation morphed into a laundry

list of different justifications. One new justification was added when Respondent

provided Complainant with a termination letter. A few more were unveiled when

138

Id. at 14, 15.

139

Id. at 16.

140

Id.

Clemmons v. Ameristar Airways, Inc., ARB No. 2008-0067, ALJ No. 2004-AIR-00011,

slip op. at 9 (ARB May 26, 2010).

141

Douglas v. Skywest Airlines, Inc., ARB Nos. 2008-0070, 2008-0074, ALJ No. 2006AIR-00014, slip op. at 14-16 (ARB Sept. 30, 2009) (observing that “an employer’s shifting

explanations for its adverse action may be considered evidence of pretext . . . .”).

142

143

Vieques Air Link, Inc. v. U.S. Dep’t of Lab., 437 F.3d 102, 110 (1st Cir. 2006).

Clemmons, ARB No. 2008-0067, slip op. at 8-9, aff’d sub nom Ameristar Airways,

Inc. v. Admin. Rev. Bd., U.S. Dep’t of Lab., 650 F.3d 562, 569 (5th Cir. 2011).

144

Respondent was communicating with the Texas Workforce Commission. And when

litigation began, Respondent put forth the full list of justifications, claiming that

everything from a two-year old horseplay incident to Kelly Gregory’s surreptitious

trip to corporate headquarters were reasons why Respondent terminated

Complainant’s employment.

The ALJ, however, makes no mention of how these justifications changed

over time, not even to say that he found Respondent’s shifting explanations to be

justified by something other than Respondent throwing everything at the wall in

the hope that at least one non-retaliatory explanation would stick. This was a

mistake. Respondent’s shifting explanations are strong evidence of pretext and

should have been considered by the ALJ. The ALJ’s failure to address the evolving

nature of Respondent’s rationale for terminating Complainant is particularly

damning in light of the ALJ finding that all but one of the reasons presented during

litigation were not credible. Although the dissent points out that the most egregious

examples of shifting reasons tend to be when an “employer’s subsequent reasons

plainly contradict prior reasons,” 145 our precedent is clear that continuously adding

new justifications for an adverse action, even if an employer does not abandon any

of its earlier justifications, can be evidence of pretext. 146 Respondent’s reasons,

although not mutually exclusive, relate to unconnected incidents that occurred

almost two years apart. In our view, this represents a high degree of inconsistency,

even if Respondent has not abandoned any of its prior justifications. 147

144F

145F

146F

It is notable that the sole reason the ALJ found to be credible—

Complainant’s failure to support management—was conspicuously missing from

much of the previous documentation of Complainant’s termination. Although it was

included in the termination letter, it was not given as a reason when Coady

suspended Complainant nor was it mentioned in the letter reasons Respondent

145

Infra, at 58.

See, e.g. Clemmons, ARB No. 2008-0067, slip op. at 8-9 (finding pretext where an

employer provided a terminated employee with one reason, provided an additional reason

during the OSHA investigation, and provided two additional reasons in an appeal to the

TWC, all within two months of terminating the employee).

146

Respondent’s different explanations (Complainant’s use of a swear word, the kicking

incident, breaches of confidentiality, and failure to support leadership) are not explanations

“whose only difference lay in their level of generality,” which the Fifth Circuit has not

generally considered to be inconsistent. Minnis v. Bd. of Sup’rs of La. State Univ. & Agr. &

Mech. Coll., 620 F. App’x 215, 220 (5th Cir. 2015) (citing Hamilton v. AVPM Corp., 593 F.

App’x 314, 322 (5th Cir. 2014)).

147

provided to the Texas Workforce Commission. This partial absence from previous

documentation is additional evidence of pretext that the ALJ failed to consider. 148

147F

B. Complainant’s Alleged Failure to Support CEO Coady is Part and Parcel

of Complainant’s Protected Activity

Assuming, arguendo, that Respondent’s claim that it terminated

Complainant because of his failure to support Coady is not pretextual, that would

still be insufficient for Respondent to prevail on its same action defense. This is

because the central issues on which Complainant failed to support Coady were the

environmental compliance concerns, i.e., Complainant’s protected activity.

Our precedent makes clear that “[w]hen an employer applies an otherwise

legitimate criterion in such a way that it interferes with the exercise of specific

whistleblower rights, . . . the employer acts in violation of the employee protection

provision of the corresponding statute.” 149 The same applies to an employer’s

affirmative defense. The record in this case demonstrates that although

Complainant and Coady disagreed on a wide range of issues, it was Complainant

repeatedly bringing up his concerns about environmental compliance issues that

was seen by Respondent as the most serious instance of failing to support Coady.

148F

The strongest evidence of this comes from Complainant’s performance review.

As previously discussed, the performance review was prepared by Coady and

describes a year in two parts. The first part of the year was “disappointing” and

marked by “dissension,” with Complainant insisting on his way or no way. 150

The second half of the year, by contrast, was a “strong self recalibration” during

which Complainant “committed to rebuilding trust at the senior level and

addressing the divides in the business.” 151 In the evaluation, Coady was clear that

he had “seen good progress made in this regard.” 152 So what changed from the first

half of the year to the second half of the year? Complainant testified that “the only

thing [he] changed” from the first part of the year to the second part was becoming

“much more careful” about what he said relating to the Makor permit and other

environmental compliance issues. 153 Respondent does not challenge that the middle

of 2018 is when Complainant’s protected activity ceased: Coady testified that

149F

150F

151F

152F

See Bobreski, ARB No. 2009-0057, slip op at 19 (stating that pretext can be shown by

“demonstrating that the proffered reasons were conspicuously missing from previous

documentation.”).

148

Timmons v. Franklin Elec. Coop., ARB No. 1997-0141, ALJ No. 1997-SWD-00002,

slip op. at 7 (Sec’y Dec. 1, 1998).

149

150

CX 18 at 3.

151

Id.

152

Id.

153

Tr. 293.

August 2018 is the last time he had any conversation with Complainant regarding

environmental compliance matters. 154 Additionally, in both its pre- and posthearing briefing before the ALJ, as well as its brief filed with the Board,

Respondent goes to lengths to emphasize that Complainant did not continue to

discuss environmental compliance with Coady or other members of management

beyond August 2018. Just as importantly, Respondent does not contest that

Complainant continued to butt heads with Coady on other issues (most notably the

DreamCraft cabinet line) after August 2018.

153F

Despite this, the ALJ summarily rejects the view that Complainant backed

off on the permit and VOC issues but continued to clash with Coady on other topics,

stating that it is “unsupported in the record.” 155 We cannot agree. The ALJ cites

Complainant’s testimony that, following Coady’s threat to terminate him, he “was

much more careful what I said and did regarding those circumstances, those things,

the permits and different things like that and lo and behold, it actually improved my

evaluation.” 156 This response came immediately prior to Complainant stating that

the environmental permits were “the only thing [he] changed.” 157 In context, the

most natural reading of “and different things like that” is as a reference to the VOC

emission calculations and ancillary environmental issues relating to the air

permits.

154F

155F

156F

The ALJ’s conclusion that it is “more likely that Complainant tried to hold

his tongue, not just as to the permit but as to all areas” is unsupported by the

evidence and directly contradicted by the very next paragraph of his decision. As the

ALJ notes, both Complainant and Coady testified at length about an incident in

which Coady “verbally attacked” Complainant after a presentation demonstrating

the DreamCraft line to the sales team that went poorly. 158 In Complainant’s

recounting of this incident, after this presentation, “Coady rushed into his office and

got within six inches of his face and threatened to fire [Complainant] if they couldn’t

get it done right.” 159 What is notable about this incident is that occurred not during

Complainant’s troublesome first segment of 2018 but at the end of 2018, during the

period Coady described as a “strong self recalibration.” 160 The ALJ made no effort to

157F

158F

159F

154

Tr. 78.

155

D. & O. at 10.

156

Tr. 293.

157

Id.

158

D. & O. at 9.

159

Id.

The exact date of the DreamCraft unveiling, after which Coady verbally attached

Complainant, is not entirely clear from the record. Complainant testified that it was

“towards the end of” 2018. Tr. 303. Complainant also stated that it was “the latter part of

160

address, let alone resolve, the contradiction between a performance review that

praised Complainant’s performance during the second part of 2018 with

uncontroverted evidence that Complainant and Coady continued to disagree—in

some instances vehemently—on matters unrelated to the protected activity in the

second segment of 2018 and beyond.

The dissent claims that the record does not show hostility from Coady in

response to Complainant expressing his concerns about the Makor permit. 161

We disagree. The heated exchange between Coady and Complainant following the

latter’s call to Douglas to discuss his environmental concerns is but one example of

Complainant’s protected activity resulting in hostility. And although Respondent

alleges that the content of that call to Douglas covered more than just the

environment compliance issues, Complainant offered uncontroverted testimony that

during the start of his employment he would talk to Douglas “at least once a week,

if not multiple times a week[.]” 162 This accords with Complainant’s job description

that listed keeping the board and the corporate parent appraised of the status of all

operational issues as one of his responsibilities. Neither party has suggested that

these earlier calls provoked the same negative reaction from Coady. These regular

calls between Complainant and Douglas also cast doubt on the ALJ’s framing of the

August 2018 call as Complainant going “over Coady’s head to complain to

Douglas.” 163 Respondent is unable to explain what made the August 2018 call—

during which Complainant brought up the Makor permit and VOC calculations—

different from all the other calls that did not result in threats to terminate

Complainant.

160F

161F

162F

The dissent also argues that substantial evidence supports the claim that

Respondent and its senior management were diligently working toward getting the

Makor permitted. 164 This argument misses the mark for two reasons. The first is

that an “employer cannot ‘cure’ protected activity or erase that it occurred by

admitting to wrongdoing, by apologizing, or by agreeing with the employee about a

safety concern.” 165 Additionally, even if this claim is only intended to show that

163F

164F

’18, maybe the beginning of ’19.” TR. 408. Regardless of the exact date, it is clear that the

incident took place after Complainant’s “strong self recalibration.”

Infra, at 33 (“[W]hen Complainant brought concerns about Makor to Coady and

Rodriguez, they accepted and appreciated his concerns[.]”).

161

162

Tr. 286.

163

D. & O. at 19.

Infra, at 34 (“The dialogue between Coady, Rodriguez, and Complainant in the

second call demonstrates a degree of cooperation and urgency concerning getting the Makor

permitted”).

164

Jones, ARB No. 2023-0035, slip op. at 14-15 (quoting Sewade v. Halo-Flight, Inc.,

ARB No. 2013-0098, ALJ No. 2013-AIR-00009, slip op. at 8 (ARB Feb. 13, 2015)).

165

Respondent and its management did not take issue with Complainant raising

concerns about environmental permitting and thus discount Complainant’s

protected activity as a source of friction between him and Coady, it misstates what

exactly Coady and Complainant disagreed on when it came to the Makor permit.

The disagreement relating to the permit did not stem exclusively (or even primarily)

from the (in)sufficiency of Respondent’s efforts to get a new permit in place but from

Respondent’s decision to unlawfully operate the Makor sprayer after the existing

permit lapsed and before a new permit was obtained.

That Respondent’s decision to keep operating the Makor without a valid

permit was a major source of friction was first evident during the June 15, 2018 call

between Complainant and Rodriguez when Complainant had to explain to

Rodriguez that his concern was not whether he could practically run the Makor but

whether he could legally run it. 166 Any doubt over the source of Complainant’s

discontent should have been put to rest when Complainant emailed Coady five days

after that call to say that he was “increasingly uncomfortable continuing to run [the

Makor] the way we are without consent.” 167 And, returning once again to the June

28, 2018 email, Complainant explained that one of his concerns was that the Makor

sprayer was “[c]urrently running illegally[.]” 168 Even if we were to overlook the

repeated deficiencies with Respondent’s subsequent permit applications and grant

that the company was making a diligent and good-faith effort to obtain a new

permit as expeditiously as possible, it is no mystery why these efforts did not

redress Complainant’s unease. 169 Complainant was responsible for ensuring that

operations were conducted in an ethical (and, by extension, lawful) manner and was

uncomfortable with Respondent’s decision to continue operating the Makor sprayer

without a permit. Although Respondent’s management may have wanted to, as

Coady put it, “minimize any kind of time we’re noncompliant,” they were ultimately

willing to illegally operate the Makor sprayer until a permit could be obtained and

this was what caused tension between Complainant and management.

Thus, although we agree with the dissent’s characterization that the “tone of

Complainant’s communications had changed between June 15 and June 20, 2018,”

we view this as evidence that Complainant’s primary concern was not simply that

the Makor permit lapsed, but that Respondent choose to continue running the

165F

166F

167F

168F

166

Ex. F to Resp. Mot. for Summ. Decision at 29-30.

167

CX 11.

168

CX 9 at 1.

The 31 deficiencies that were identified by TCEQ in its July 31, 2018 letter

concerning Respondent’s re-submitted permit application (many of which were carried over

from previous submissions), coupled with the length of time it took for Respondent to

properly complete the permit application, cast doubt on Respondent’s characterization that

it was working diligently and expeditiously to get a permit in place either after the prior

permit lapsed or after TCEQ voided the permit amendment application.

169

equipment without the legally required permit. 170

169F

The record, along with the testimony credited by the ALJ, paints a rather

clear picture: Complainant, after being threatened with termination in August 2018

for going over Coady’s head to report environmental compliance issues, held his

tongue on those issues. He continued, however, to speak his mind when it came to

product decisions and the variety of other issues over which he and Coady

disagreed. As his end of year performance review shows, this was perfectly fine from

Coady’s perspective. Dropping the Makor permit and VOC issues but continuing to

clash over the DreamCraft line and issues like payroll and purchasing was

sufficient for Coady to describe the second half of the year as a period during which

Complainant committed to and made good progress in rebuilding trust and

addressing divides. The only conclusion that can reasonably be drawn from this is

that Complainant’s “ongoing lack of support for Nation’s management” was really

an ongoing lack of support for Nation’s management’s approach to handling the

illegally operating Makor sprayer and VOC calculations. The unlawful operation of

the Makor sprayer and the potentially inaccurate VOC calculations were the issues

that “put [Complainant] at odds with senior management and the Board” as Coady

put it in Complainant’s performance review. And those were the issues that

resurfaced during the board meeting and got Kelly Gregory “to the point of just

showing up” at MNE’s headquarters. 171

170F

When an employer gives a reason for termination that is “reducible in

essence to the problem of inconvenience” caused by a complainant’s protected

activity, it does not meet its burden of showing that it would have taken the same

adverse action in the absence of the complainant’s protected activity. 172 Because

Respondent’s assertion that it terminated Complainant over his failure to support

management is really an assertion that it terminated Complainant over his failure

to support management in its (mis)handling of the permitting issues, Respondent

did not make the showing required to prevail on its same action defense.

171F

C. The ALJ’s Finding that Complainant’s Lack of Support for Management

was a Result of His Desire to be CEO is Conclusory

Despite the significant evidence demonstrating that Complainant’s protected

activity was the primary source of friction between him and management, the ALJ

reaches the conclusion that it was actually Complainant’s frustration over not being

170

Infra, at 37.

171

Ex. I. to Resp. Mot. for Summ. Decision.

Cf. Passaic Valley Sewerage Comm’rs, 992 F.2d at 481 (affirming a Board decision

finding for a complainant where his alleged personality problem and deficiency of

interpersonal skills was reducible in essence to the problem of the inconvenience caused by

his pattern of complaints).

172

made CEO that produced the friction between him and Coady. 173 This is not

supported by substantial evidence. In support of this view, the ALJ points to two

brief excerpts from Complainant’s testimony. While being cross-examined,

Complainant was asked about his role as COO:

172F

In fact, [you’re] the second highest ranking officer of the company, right?

Yes. Well, in title, yes.

This one-line answer was described by the ALJ as “among the most probative

evidence in the case” that “explains [Complainant] and his spouse’s actions.” 174

Although it is reasonable to interpret this response as evidence that Complainant

felt that he was being sidelined as the company’s COO, the ALJ provides no

explanation of how it relates to Complainant’s alleged failure to support leadership.

Afterall, the ALJ credited Ignacio Gonzales’ and Joshua Morones’ testimony that

Complainant never voiced any resentment or disagreement on the shop floor. 175

On top of this, the evidence indicates that Complainant’s view that he was being

sidelined as COO is closely tied to his protected activity. Complainant’s

responsibilities, as detailed in his employment forms, included ensuring that

“business processes are performed with the highest degree of ethics and

integrity.” 176 Complainant was also responsible providing “clear communication to

Miami Nation Enterprises that ensure they are continually and accurately informed

of the status of all operations” at the Company. 177 Complainant was doing exactly

that when he reported serious environmental compliance violations first to his

immediate supervisor and then to COO Douglas only to be threatened with

termination and asked where his loyalties lie. Although this was not the only issue

where Complainant felt his experience and views were being minimized, it is

neither surprising nor particularly telling that a COO who was rebuked when

carrying out essential compliance functions would feel like a COO in title only.

173F

174F

175F

176F

The ALJ also quoted another exchange from Complainant’s testimony, this

one regarding the DreamCraft line:

It sounds like your interactions with Mr. Coady about this DreamCraft

product line were fairly contentious. Is that right?

Only because he made them that way.

173

D. & O. at 19-20.

174

Id. at 17.

175

Id. at 19.

176

RX 2 at 1.

177

Id.

For one thing, we note that this response does not relate to Complainant’s

supposed frustration over not being named CEO. Additionally, as the ALJ notes,

Coady in his testimony identified Complainant as the one responsible for the

friction between the two of them. 178 That the CEO and COO each blamed the other

is hardly noteworthy. We cannot agree that Complainant blaming Coady for the

disagreements between the two of them has any probative value as to Respondent’s

affirmative defense. These two exchanges, when considered alongside all the other

evidence in this case, do not rise to the level of “such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.” 179

177F

178F

D. The ALJ Failed to Consider Significant Countervailing Evidence

As the Supreme Court has recognized, a reviewing tribunal’s determination

of whether evidence is substantial must “take into account whatever in the record

fairly detracts from its weight.” 180 Because of this requirement, the Board has made

clear that “the substantial evidence standard does not require us to affirm the ALJ's

findings of fact merely because there is evidence in the record which would justify

them, without taking into account other - contrary - evidence in the record.” 181

The ALJ failed to consider the significant evidence that contradicts his findings. 182

A review of the evidentiary record shows that the ALJ did not discuss or evaluate

the following evidence in his D. & O.:

179F

180F

181F

•

Complainant’s job description, which included communicating with MNE to

keep the parent company accurately informed of the status of all operations

at Nations Cabinetry;

Complainant regularly calling Douglas prior to the August 2018 call in which

environmental compliance issues were discussed;

178

D. & O. at 18; Tr. 73-74.

179

Consol. Edison Co. of New York, 305 U.S. at 229.

Bobreski, ARB No. 2009-0057, slip op. at 8-9 (quoting Universal Camera Corp., 340

U.S. at 488).

180

Poulter v. Cent. Cal Transp., LLC, ARB No. 2018-0056, ALJ No. 2017-STA-00017,

slip op. at 12 (ARB Aug. 18, 2020) (quoting Dalton v. Copart, Inc., ARB No. 2001-0020, ALJ

No. 1999-STA-00046, slip op. at 7 (ARB July 19, 2001)).

181

In a footnote, the ALJ states that “I have reviewed and considered all testimony and

exhibits admitted into the record. Reviewing authorities should not infer from my specific

citations to some portions of witness testimony and items of evidence that I did not consider

those things not specifically mentioned or cited.” D. & O. at 2. A single footnote stating that

evidence not mentioned or cited in the decision was nonetheless considered does not alter

the substantial evidence standard under which we review findings of fact.

182

•

The timing of Complainant’s disagreements with Coady over the DreamCraft

line and other issues, and how that timing fits with Complainant’s “strong

self recalibration;”

Kelly Gregory’s explanation of why she travelled to MNE headquarters at the

time she did;

The reasons for terminating Complainant that Respondent included in its

communications with the Texas Workforce Commission; and

How Respondent’s explanation for why it terminated Complainant shifted

over time.

Our review of the record convinces us that the ALJ’s finding that Respondent

would have terminated Complainant even in the absence of his protected activity is

not supported by substantial evidence. The ALJ failed to consider the shifting

nature of Respondent’s explanations for terminating Complainant, all but one of

which he found to be wholly pretextual. The ALJ further failed to consider how

Complainant’s protected activity was the predominant source of the tension

between Complainant and Coady. Finally, the ALJ’s finding that it was

Complainant’s supposed desire to be CEO that caused tension that would later be

characterized as a failure to support management is unsupported by the record

when viewed as a whole.

CONCLUSION

Because the ALJ’s decision is not supported by substantial evidence, we

REVERSE the ALJ’s finding that Respondent established by a preponderance of

the evidence that it would have taken the same adverse action in the absence of

Complainant’s protected activity, and we REMAND this matter for the purpose of

calculating damages.

SO ORDERED.

RANDEL K. JOHNSON

Chief Administrative Appeals Judge

ELLIOT M. KAPLAN

Administrative Appeals Judge

PHILIP G. KIKO

Administrative Appeals Judge

Judge Burrell, Concurring in Part and Dissenting in Part:

Respectfully, I concur in part and dissent in part from my colleagues.

With the majority, I would affirm the ALJ’s findings of protected activity and

motivating factor as supported by substantial evidence. Parting from my colleagues’

order reversing and remanding for damages, I would also affirm the ALJ’s findings

concerning Respondent’s same-action defense as supported by substantial evidence

in the record.

In a matter decided after hearing, the Board’s job is not to reweigh evidence

or sit in the shoes of the ALJ as arbiter of fact. Under the Clean Air Act (CAA), the

Board reviews an ALJ’s findings for substantial evidence. 183 As the United States

Supreme Court has noted, “[t]he threshold for such evidentiary sufficiency is not

high.” 184 Substantial evidence is “‘more than a mere scintilla.’ It means—and

means only—‘such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.’” 185 Under the substantial evidence rule, a

reviewing court does not rule as they would if they had been the fact-finder. Neither

does the court decide that there is another finding contrary to the ALJ’s finding

which is supported by substantial evidence. 186 The Board is not a super-personnel

department weighing Respondent’s decision-making at various points and deciding

whether some business decision was the fairest or most business savvy. 187 We

simply review the ALJ’s findings and the record to determine whether those

findings are supported by substantial evidence of the record as a whole.

182F

183F

184F

185F

186F

As the majority states, the CAA outlines specific obligations for a successful

complainant to prove. To prevail, a complainant must show that protected activity

was a motivating factor in the adverse action. 188 Even so, a respondent may avoid

187F

29 C.F.R. § 24.110(b). The ARB reviews an ALJ’s legal conclusions de novo. Saporito

v. Progress Energy Serv. Co., ARB No. 2011-0040, ALJ No. 2011-ERA-00006, slip op. at 4

(ARB Nov. 17, 2011).

183

184

Biestek, 587 U.S. at 102-03.

185

Id. (citing and quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).

See Henrich v. Ecolab, Inc., ARB No. 2005-0030, ALJ No. 2004-SOX-00051, slip op.

at 7-8 (ARB June 29, 2006); Sharpe v. Supreme Auto Transp., ARB No. 2017-0077, ALJ No.

2016-STA-00073, slip op. at 5 (ARB Dec. 23, 2019).

186

See Gale v. Ocean Imaging & Ocean Res., Inc., ARB No. 1998-0143, ALJ No. 1997ERA-00038, slip op. at 13 (ARB July 31, 2002); Jones v. U.S. Enrichment Corp., ARB Nos

2002-0093, 2003-0010, ALJ No. 2001-ERA-00021, slip op. at 17 (ARB Apr. 30, 2004).

187

188

29 C.F.R. § 24.109(b)(2).

relief if it can show by a preponderance of evidence that it would have taken the

same adverse action in the absence of protected activity. 189

188F

There is no genuine dispute here that Complainant’s grievances to

management in 2018 about the Makor permit constitute protected activity.

However, as the ALJ found, differences between Complainant and Respondent went

well beyond Makor. Complainant was fired on March 31, 2020. The ALJ found that

mixed motives were at issue and that Respondent had shown by a preponderance of

the evidence that it would have fired Complainant even if he had not engaged in

protected activity concerning the Makor. 190 Respondent considered Complainant’s

conduct as a whole as not supporting senior leadership. 191 Certain events in 2020

pushed that tension over the edge. Respondent had lost confidence in Complainant’s

ability to be a functioning part of the team. For the reasons below, I would find

substantial evidence supports the ALJ’s finding.

189F

190F

1. Respondent Was Working to Get the Makor Permitted Before and After

Complainant’s Employment with Respondent

Complainant on appeal argues that Respondent’s warnings in 2018,

performance evaluation in 2019, and ultimate termination in 2020 for not

supporting management should be construed as Complainant not supporting

management (J.W. Coady and Oscar Rodriguez) in re addressing the Makor permit

rather than not supporting management on matters unrelated to Makor. 192

Respondent counters, among other arguments, that they did not retaliate against

Complainant because of his Makor complaints. Rather, it was Complainant’s

nonsupport on matters unrelated to Makor that resulted in his suspension and

termination. 193 Respondent’s position is supported by the record. As the ALJ cited,

when Complainant brought concerns about Makor to Coady and Rodriguez, they

accepted and appreciated his concerns but explained that it was being handled by

third-party consultants (Source Environmental) and Rodriguez as point man. 194

Respondent further argues Complainant’s Makor complaints were “so remote in

time” that there is a significant temporal gap between the protected activity in 2018

191F

192F

193F

Id.; Martin v. Akzo Nobel Chem., Inc., ARB 2002-0031, ALJ No. 2001-CAA-00016,

slip op. at 4 n.3 (ARB July 31, 2003).

189

190

D. & O. at 17-21.

191

Id. at 10-12, 17-21.

192

Complainant’s Brief (Comp. Br.) at 23-25, 28.

193

Resp. Br. at 9-11.

D. & O. at 7, 8-9; Tr. 50 (“we would do whatever it took to get the Makor compliant”),

Tr. 53 (Oscar was point person on Makor), Tr. 65 (Oscar Rodriguez worked with Source

Environmental on permit).

194

and Complainant’s termination in 2020. 195 Additionally, the record shows that

Respondent had been in the process of obtaining a permit for Makor since 2017

before Complainant started working for Respondent. 196 This process was completed

in 2021. 197

194F

195F

196F

A. June 15, 2018 Phone Calls between Complainant, Respondent, and Source

Environmental

The ALJ cites or references two June 15, 2018 recorded phone calls between

Complainant, Respondent, and Source Environmental wherein they discuss recent

developments in the Makor permit and getting the necessary documentation for

permitting. 198 Complainant suggests that during the second call, Coady showed a

lack of concern for Makor compliance when he stated not using Makor would be a

“showstopper.” 199 Reviewing cited portions of the transcript in full confirms

management’s effort to obtain the permit. Management acknowledged that the

Makor spray machine was not in compliance, and there was a small amount of

remaining documentation needed to complete the submission. The dialogue between

Coady, Rodriguez, and Complainant in the second call demonstrates a degree of

cooperation and urgency concerning getting the Makor permitted. 200 Complainant

and others were to get the data to Source Environmental and Rodriguez to file the

necessary documents to resubmit material to the Texas Commission on

Environmental Quality (TCEQ):

197F

198F

199F

JW Coady:

Okay. So what are we saying? Tactically, we’ve been

running the Makor noncompliant.

195

Resp. Br. at 9-10; D. & O. at 7.

Resp. Br. at 9. TCEQ had issued a construction permit in October 2017 but this had

lapsed on or about December 13, 2017. RX 11 (Nov. 30, 2017 letter from TCEQ indicating

that it had received Respondent’s November 16, 2017 Permit Amendment Application, and

it was under review, listing several deficiencies); Resp. Mot. for Summ. Decision, Ex. J (Dec.

13, 2017 letter from TCEQ).

196

197

Tr. 213.

D. & O. at 8. One June 15 recording between Complainant, Rodriguez, and Source

Environmental was submitted to the ALJ at hearing. CX 15. A second June 15 recording

between Complainant, Rodriguez, and Coady was submitted by Respondent as an exhibit to

its motion for summary decision. Ex. F, of Resp. Mot. for Summ. Decision. Both parties

acknowledged at hearing that Ex. F was part of the record and available for review. Tr. 273,

340-41.

198

199

Comp. Br. at 8, 12.

200

Ex. F to Resp. Mot. for Summ. Decision, at 21.

Jeffrey Gregory:

Yeah, it looks like this . . . From what they were

saying on the phone, this permit actually died on the

13th of December, and the timeframe between

December and . . .

Oscar Rodriguez:

June.

Jeffrey Gregory:

. . . and June was the timeframe to basically go back

and say, “Why did it die? What can we do to keep it

from dying”? And then the deadline in June was,

“We missed that. What do we do to keep it from

dying?” timeframe.

JW Coady:

So now we’re resubmitting.

Jeffrey Gregory:

Now we have to resubmit.

Oscar Rodriguez:

We’ve always been in the mode of resubmitting.

When the application was rejected from the state

initially, we started the process again to gather up

all of the data. We just happened to miss the June

13th deadline. The June 13the deadline, the

significance with that was reapplying with a fee of

$1,100. The feeJW Coady:

The $1,100 doesn’t bother me. Not running the

Makor, that bothers me. That’s a showstopper,

right? There’s the challenge. I just need to get all

this paperwork done, file whatever fee. I think if

there’s a way to expedite, pay more, I'm interested

in that. We need to get this thing moving and going,

minimize any kind of time we’re noncompliant.

We’ve got to get our heads around what does that

mean for continuing to serve our customers, keep the

business moving, which it’s disappointing to hear,

really what I'm hearing. We’ve got an issue now with

the Makor. And have had for a while, yes. All right.

JW Coady:

So job one, we’ve got to get after all this paperwork,

get it over to George [of Source Environmental], get

these drawings, get the resubmission going, ask him

about any kind of ability to expedite for extra money.

Sometimes states have that, sometimes they don’t.

Don’t know. It doesn’t hurt to ask. And see how fast

we can get this thing moving through the process.

I’ll be back in the office Monday morning, and we’ll

do a huddle and see where our heads are at, and

what’s our plan to finish going forward. We’ve got to

figure that one out. Right? Did I miss anything?

Oscar Rodriguez:

Nope. 201

200F

Coady, Rodriguez, and Complainant concluded this portion of the meeting with a

game plan for getting the data together for resubmission through Source

Environmental. The effort on June 15 from all involved seemed cordial. It was

known that Makor was not compliant, but they were collecting and assembling data

for the submission to TCEQ and discussing cost-effective alternatives to address the

problem.

B. The Record Demonstrates Respondent’s Significant Efforts to Obtain the

Necessary Permit

Following the June 15 call, Respondent submitted a filing with TCEQ in late

June or early July (hereinafter June 30, 2018). 202 On July 13, 2018, TCEQ replied

by letter to Rodriguez stating that they had identified deficiencies and asked for

responses within ten days, July 23, 2018, or the application would be voided. 203

Respondent submitted a response to the listed deficiencies but that, too, was

rejected by TCEQ. On August 23, 2018, Respondent’s third-party contractor,

Source Environmental, submitted a new permit amendment application.

201F

202F

201

Ex. F to Resp. Mot. for Summ. Decision, at 24-25.

The record contains a July 13, 2018 response from TCEQ to Respondent in reference

to Respondent’s “Permit Amendment Application” but does not provide the date of the

submission to which it is responding. CX 4. Parties do not contest the June 30 date.

202

203

CX 4.

The dialogue between Respondent and TCEQ continued throughout 2018. 204

Respondent submitted data and answered inquiries. TCEQ responded with

comments and additional data requests. On October 12, 2018, TCEQ wrote a letter

to Rodriguez stating that they needed significant additional information to complete

their review. 205 TCEQ acknowledged the technical difficulty in obtaining a permit:

203F

204F

Permitting a wood cabinet manufacturing facility is a

complex process requiring a thorough understanding of: all

emission generating processes at the site; the emission

generating equipment used at the site. The building

ventilation system; location and size of building and

individual room openings where emissions may escape to

the atmosphere; an understanding of emission capture as

it relates to the building, rooms within the building, and

individual process equipment such as paint booths; as well

as emission calculation and air dispersion modeling

techniques.[ 206]

205F

TCEQ asked for the requested information within 30 days.

Shortly thereafter, the effort to obtain the permit encountered difficulty.

Respondent had to void the permit application in late 2018. 207 It is not clear what

efforts took place thereafter in 2019. A permit was obtained in 2021. 208

206F

207F

2. Complainant’s Efforts to Undermine Senior Leadership

A. Complainant’s June 20 and June 28, 2018 Emails to Coady

The tone of Complainant’s communications had changed between June 15

and June 20, 2018. As noted above, Complainant and Respondent discussed the

permit on June 15. At the conclusion of the June 15 meeting, individuals were to get

the data to Rodriguez and Source Environmental for filing by the end of the month.

Some tension manifested between the phone calls of June 15 and Complainant’s

June 20 email informing Coady that Rodriguez is not responding to him.

Complainant wrote in his June 20 email:

CX 6 (TCEQ air quality permit dated Oct. 18, 2017); CX 1 (email correspondence

between Respondent and TCEQ in the fall 2018); CX 4; CX 3.

204

205

CX 3.

206

Id.

207

CX 1.

208

Tr. 213.

JW,

I wanted to check in and see if you have heard anything

from Oscar on the Makor? I haven’t heard anything yet and

am increasingly uncomfortable continuing to run the way

we are without consent. Would you please check in with

Oscar and see if he has made any progress on the permit

and let me know what I can do to assist?

Thanks so much!!

JG 209

208F

Coady responded to Complainant’s email that he had contacted Rodriguez and felt

they will have the information by the end of the week. 210 Coady continued that

management will work with Source Environmental to get documents filed correctly.

209F

Jeff

I just spoke with Oscar, he feels we will have all our info

ready by end of week. We will work with outside resources

to ensure we get all material documents filed correctly.

Thanks

JW 211

210F

Coady’s response is consistent with his testimony. Coady did not rebuff

Complainant’s concerns on Makor but declined Complainant’s request for

involvement vis-à-vis Rodriguez and Source environmental—answering that “we”

will work with Source Environmental to get the permit material submitted. 212

The record shows that Respondent did submit documents to TCEQ on or about June

211F

209

2018).

210

CX 10 (Email exchange between Jeffrey Gregory and JW Coady, dated June 20,

Id.

Id. Complainant sent his email to Coady at 9:00 a.m. on June 20. At 2:42 p.m. on

June 20, Coady responded to Complainant with the above email. Also at 2:42 p.m.,

Complainant immediately forwarded Coady’s response to his wife’s personal email address.

Id.

211

Id.; see also D. & O. at 9; Tr. 108-09 (Coady answering ALJ’s question that it was

reasonable for Complainant to be concerned but they were working on it with Rodriguez

and Source Environmental; Source Environmental does the measurements and

calculations).

212

30, consistent with the goal discussed in the June 15 call. 213 While Complainant

grieved that Rodriguez was not answering Complainant’s calls and Complainant

was not able to evaluate Rodriguez’s progress on Makor, there is no indication that

Rodriguez was to report to Complainant. Rather, it is undisputed that Respondent

placed Rodriguez as point on Makor. 214 Respondent had been working on Makor

permitting before Complainant had started employment with Respondent.

Yet, Complainant believed he was in charge of or responsible for Makor as COO. 215

Coady promptly responded to Complainant’s email but did not take up

Complainant’s cue to intervene with Rodriguez on Complainant’s behalf. The ALJ

found “Coady and Rodriguez essentially told him they understood his concerns,

but compliance was not his job and they were managing the issue without his

help.” 216

212F

213F

214F

215F

Shortly thereafter, Complainant sent Coady a June 28, 2018 email with the

subject line “Exercise # 2 update.” 217 The email began with Complainant’s

introspection as to what creates stress in the workplace outside of normal business

operations. Complainant outlined for Coady eight categories of grievances with two

to three subcategories per category.

216F

In the email, Complainant displayed his increasing hostility toward

Rodriguez and Rodriguez’s role in Makor. Just as with the June 20 email, the ALJ

correctly found that the June 28 email contained protected activity 218 but was also

correct that it reveals Complainant’s mindset toward senior leadership. 219

217F

218F

Category # 1 was Complainant’s “lack of trust” of Rodriguez and his ethics “or

lack thereof.” 220 Complainant identified in Category # 2 Makor’s current noncompliant status 221 discussed previously on June 15 and June 20 but repeated that

219F

220F

213

Supra note 202.

214

Supra note 194.

215

CX 9; see infra note 226 (June 28 email).

216

D. & O. at 9; see also Tr. 108-09.

217

CX 9.

D. & O. at 8-9. That Complainant’s motive was to get rid of management does not

prevent his communication from constituting protected activity. Id. at 7 n.22.

218

219

Id. at 10, 17.

220

CX 9.

Complainant characterizes Makor as running “illegally.” Coady testified that it was

not running illegally or unlawfully. Tr. 50, 65-68. Respondent had an open amendment

application that had been rejected numerous times in 2018. Id. at 50.

221

he had received “no communication” from Rodriguez. Complainant continued that

he believed he was responsible for equipment including Makor, but:

I must reach out continuously to find out what the progress

is. This has significant legal implications that I have no

control to address, which is completely outside my

standard of doing business.[ 222]

221F

Complainant felt Rodriguez was being “favored” and “allowed to conduct business”

contrary to Complainant’s vision for the company. 223 Category # 3 is a related issue

of volatile organic compounds (VOC) and the integrity of information to and from

Source Environmental. 224

222F

223F

Complainant’s June 28 email as a whole demonstrates that Complainant

wanted more power to execute and influence business outcomes. 225 Under a heading

“Staffing operations area,” Complainant placed himself and his reputation at the

helm of staffing. He states:

224F

Again, this is an area that I will ultimately be accountable

for and I am not in control of how to execute my strategies.

All decisions are made by the CEO. I believe I was hired for

and have a reputation for achieving results. I have

extensive experience with staffing operations and I am not

currently permitted to make those decisions.[ 226]

225F

Complainant had similar charges in re Coady’s leadership in areas of “purchasing

items and improvements.” 227 Complainant wrote in the email:

226F

I have not been permitted to make decisions regarding

needs/wants though I am operating inside budget. I have

After Complainant was terminated, he informed TCEQ of his concerns on the

Makor. They investigated but took no action. Tr. 215, 362; RX 12 (July 17, 2020 letter from

TCEQ stating “[n]o violations are being alleged as a result of the investigation”).

222

CX 9; Resp. Br. at 9.

223

CX 9.

Coady testified that Source Environmental was the expert on VOC data. Tr. 53.

Sherwin Williams sent data to Source Environmental. Id. at 52-54. Source Environmental

ran the numbers and performed the calculations. Id. at 51-52.

224

225

D. & O. at 17.

226

CX 9.

227

Id.

been responsible for maintaining budgets for 10+ years yet

I do not have the control to make purchases that aid in

achieving the strategic vision even when I am inside the

parameters of the budget itself.[ 228]

227F

Complainant further objected that Coady as CEO was discussing items directly

with shop floor employees which sent mixed signals and interfered with

Complainant’s control over day-to-day operations. Complainant concluded that

Coady’s involvement “undermines [Complainant’s] influence on my team.” 229

228F

Although the June 28 email was addressed to the CEO and sent to Coady’s

email, Complainant challenged the CEO’s leadership in many respects.

Complainant concluded his email to the Coady with the sentence:

Connect with me when you would like to review any or all

of these. Also, please note that my intent is to provide

insight into my thoughts so that we may develop a tighter

relationship in moving the organization forward as a

team.[ 230]

229F

These emails confirm both of the ALJ’s findings: that Complainant was

concerned with running Makor as is without a permit as well as that Respondent

perceived Complainant’s tone as hostile toward Coady’s and Rodriguez’s leadership.

The ALJ described the email as follows:

In the [June 28] email, [Complainant] complains about

Rodriguez’s lack of ethics, being overridden by the CEO on

staffing decisions, being prevented from making

purchasing decisions, inconsistent directions to staff from

leadership, being unable to tactically manage operations,

and poor personnel resource allocations. Complainant

explained he was frustrated by being held accountable for

execution but restricted from performing the job he was

hired to do.[ 231]

230F

228

Id.

229

Id.

Id. After Complainant wrote the June 28, 2018 email, he forwarded it to his

personal email account the same day.

230

231

D. & O. at 17.

B. Complainant Undermined Coady in Meeting with MNE COO

Complainant’s charge against Respondent’s senior leadership was confirmed

in an event that took place several weeks after Complainant’s June 28 email.

Complainant took his grievances against Coady and Rodriguez to Derek Douglas,

COO of Respondent’s parent company, Miami Nations Enterprise, in or around

August 2018. As with the June emails, the parties concede that Complainant raised

concerns as to how Makor was being handled. 232 However, the ALJ found that

Complainant raised more than the Makor to Douglas in August 2018. 233

Complainant conveyed to Douglas his criticism of CEO Coady, including Coady’s

direction on DreamCraft, Coady’s spending decisions, Coady’s interactions with

shop-floor workers, and Coady’s creating havoc with customers. 234

231F

232F

233F

Douglas sided with Coady. As the ALJ stated “Douglas told him Coady was in

charge and he needed to get in line.” 235 Both Coady and Complainant testified that

Douglas responded that it was important for Complainant to support the CEO and

the way he chose to run the plant and not go around his back. 236 Complainant

acknowledged that Douglas instructed Complainant of his role vis-à-vis Coady’s role

as CEO. 237

234F

235F

236F

Id. at 10. Complainant did not record this phone call or enter a transcript into the

record if a recording exists. Accordingly, the record is less clear on the contents of the

discussion.

232

Id. at 3, 7-8, 10, 17. Complainant conceded that there were non-environmental

topics in the conversation with Douglas that Douglas felt were undermining Coady’s role as

CEO. Tr. 352-53.

233

D. & O. at 17; see also Tr. 349-52, 355 (Complainant communicated his disagreement

with Coady’s veering off course), Tr. 59, 77 (Coady testified that Douglas discussed with

him Complainant’s concerns about Coady’s providing directions on the shop floor).

234

235

D. & O. at 20.

236

Tr. 59-60, 280-81, 349-50.

237

Tr. 351.

Q: Well, you already testified that Mr. Douglas explained to

you what your role was vis-a-vis the CEO, correct?

A: In his view, yes.

Q: And so at least as far --- are you saying that Mr. Douglas did

not have authority to articulate the board’s position on these

issues?

A: No, what I’m saying is as I view my responsibility to Mr.

Douglas, the board, the 500 people that worked at the

organization, my responsibility was to bring up risk and risk

mitigation. When we were putting the livelihood of 500 people

and their direct dependence in play by languishing around

DreamCraft at the time we did and not being able to produce,

After the meeting, Douglas informed Coady about Complainant’s attempt

with the comment that if Complainant were undermining you as CEO, we should

let him go. 238 Coady met with Complainant to discuss the Douglas meeting.

Coady did not terminate Complainant’s employment but sought to ensure that

Complainant would work with management as opposed to against them. 239

Complainant agreed to support Coady as part of the resolution going forward. 240

237F

238F

239F

C. The ALJ’s Finding that Complainant Wanted to be CEO

The Douglas meeting follows the substance of the June 28 email.

Complainant, as COO, was not on board with the direction of the company.

Respondent received Complainant’s grievances as not supporting the CEO’s

leadership. 241 The ALJ summarized Coady’s testimony:

240F

[Coady] was purchasing processing equipment and

Complainant thought they should be purchasing painting

equipment. Complainant didn’t agree with hiring, wage

rates, shipping, or the structure of the company.

Complainant wanted to outsource a lot of material. [Coady]

wanted to do more in-house. Douglas told [Coady] one of

the things Complainant was complaining about was that

[Coady] was giving directions on the shop floor.[ 242]

241F

The ALJ observed that when Coady decided to open a new product line,

DreamCraft, around February 2018, Complainant “deeply disagreed” with this

decision and believed that resources should be directed at current product line

problems. 243 In a separate incident over DreamCraft, Complainant testified that

242F

creating havoc with our customers, havoc with our shipping,

havoc with our production environment, I felt like it was my

obligation to move those risks and issues forward because they

weren’t being heard by Mr. Coady.

Id. at 351-52.

238

Tr. 59-60; id. at 280-81.

239

Id. at 59-60, 77 (Coady’s testimony), id. at 280 (Complainant’s testimony).

Id. at 280-81 (Complainant testified that Coady said: “Are you on my team? Are we

all on the same page,” those kinds of things and then ultimately said, “Derek told me

everything you said. I don’t understand why you wouldn’t come to me first.”).

240

241

D. & O. at 18.

242

Id. at 18; Tr. 46-48.

243

D. & O. at 3, 17.

Coady verbally attacked him and got within six inches of his face and threatened to

fire him over this grievance. 244

243F

The ALJ found that Complainant was under the impression for a time that

he was in line for the CEO position before Coady was hired as CEO. The ALJ stated

as follows:

The evidence paints a relatively clear picture that after

Complainant talked to Douglas and was hired, he

anticipated becoming CEO or at least having a significant

say in both the strategic and tactical management of the

company.[ 245]

244F

The ALJ cited comments from Complainant’s answer to a question asking

whether he was second-in-charge, to which he responded “yes, Well, in title,”

alluding to the point that Complainant believed his de facto position might be

leader. 246 Other references gave the appearance that Coady’s decision-making on

DreamCraft was the cause of the hostility “only because [Coady] made it that

way.” 247 The ALJ treated these comments as confirming Complainant’s desire to be

CEO. The ALJ found these answers to be the “most probative evidence in the case.”

Complainant’s desire to be CEO “distill[s] his litany of complaints and [his]

relationship with Coady and explains his and his spouse’s actions.” 248

245F

246F

247F

These incidents support the ALJ’s finding that Complainant had an agenda

for more power in the company. 249 Complainant’s attitude toward Coady and

Rodriguez is confirmed by the tone of his communications in the emails and with

Douglas. While these events contain protected activity, this protected activity is

repetitive of what Respondent had known before Complainant had been hired—that

running Makor required a change to Respondent’s permit to be in compliance.

Respondent was not retaliatory toward Complainant on Makor; Respondent was

receptive to his concerns. Respondent placed that effort with Rodriguez and Source

Environmental. Respondent was in the process of submitting documents to TCEQ.

In fact, though Complainant may have been out of the loop because of his conflicts

with Rodriguez, Respondent and Source Environmental submitted permit

documents on June 30, 2018—in line with the goal discussed in the June 15 phone

248F

244

Id. at 11; Tr. 302-03.

245

D. & O. at 19.

246

Id. at 18 (emphasis in original).

247

Id. (emphasis in original).

248

Id. at 17-18.

249

Id. at 18, 19-20.

calls. What Respondent, Coady, and Douglas were concerned with was

Complainant’s conduct towards senior leadership and ongoing lack of support of

Coady.

3. Events in 2019

A. Performance Evaluation in March 2019

Respondent’s perception that Complainant did not support the company’s

senior leadership was reiterated in Complainant’s 2018 performance evaluation in

March 2019. 250 In that evaluation, Coady marked down Complainant for failing to

support the vision of senior leadership during the first half of 2018 but noted that

he improved in the second half of 2018. Coady provided as follows in the “building

trust” section:

249F

Trust is earned and very quickly spent. 1st half was very

disappointing—team was divided, focus was at individual

level and in no way moved Nations forward. I did not feel

that as COO you were supporting me through actions or

words. You made a commitment to me in July that I

accepted, I want to see the current path continue.[ 251]

250F

The ALJ recounted Coady’s testimony:

In March 2019, [Coady] gave Complainant a poor

evaluation. It was based on Complainant’s divisive

behavior, his unwillingness to support the direction of the

company, and his building cliques around people. When he

was reviewing his new closet line at the board meeting

Complainant objected that they were expanding too

quickly and should focus on what they were already

doing.[ 252]

251F

Complainant argued to the ALJ that his complaints about the Makor permit were

responsible for the low rating, but the ALJ found that predicate to be unsupported

by the record. 253 To the contrary, there were grievances with the CEO’s leadership

including Coady’s decision to pursue DreamCraft. The ALJ also cited Coady’s

testimony that “[i]n [the] summer of 2018, they suffered a ransomware attack. He

252F

250

CX 18.

251

Id.

252

D. & O. at 18.

253

Id. at 10.

thought they should continue to ship, using hard copy paperwork to manually load

the trucks, and continue supplying product to customers. Complainant

disagreed.” 254 This difference created significant pressure between Coady and

Complainant. 255

253F

254F

The majority relies upon the fact that Coady’s performance review cites to

poor performance in the first half of 2018 but includes a comment about improved

performance in the second half of 2018. 256 Complainant’s theory is that he

continued to raise all of his other grievances in the second half of 2018 but stopped

raising Makor complaints because he felt that he had been threatened in August

2018 with termination for raising Makor complaints to Douglas. 257 Thus, according

to Complainant, Respondent’s problems with his performance overlap with Makor

protected activity but not with non-Makor grievances.

255F

256F

There are a few problems with Complainant’s argument. The ALJ was correct

to reject it. 258 First, the majority places too much weight on Coady’s general

timeline in 2019 and not enough weight on the undisputed fact that these nonMakor heated disputes did happen. Coady’s reflection on the timing of the 2018

events when writing the performance review in 2019 is loose. Upon review of the

actual dates, many of the significant events took place in the second half of the year.

The Makor protected activity took place in June 2018 and the Douglas undermining

CEO event took place in August 2018. 259

257F

258F

Second, the majority relies upon Complainant’s testimony that a significant

blowup over DreamCraft took place in the second half of 2018 and should have been

noted in Coady’s performance review for the second half if non-Makor events were a

significant component of the performance problems. 260 Complainant’s testimony on

the dates for this blowup are vague and shifting. Complainant states “Judge, I can’t

259F

254

Id. at 18.

RX 10 at 9, 10 (Kelly Gregory stating to the parent company that divisions between

the two almost resulted in Complainant losing his job).

255

256

Supra, at 11-12.

257

D. & O. at 10-11.

258

Id. at 10-11.

If the Douglas meeting took place in August, Coady’s cite to a July reconciliation in

the performance review appears to be off. Tr. 59, 77 (Coady explaining that he had a

meeting to improve Complainant’s performance on undermining him with shop floor

employees around August 2018 after a meeting with Douglas).

259

260

Supra, at 25-26.

say that I remember. It [hostile interaction at DreamCraft’s unveiling 261] was

towards the end of 2018” but Complainant is not clear on which month. 262

Later, Complainant testifies the heated exchange with Coady over DreamCraft’s

unveiling could have been the beginning of 2019 but he could not remember. 263

Elsewhere, he testified more confidently that DreamCraft disputes “persisted all the

way through 2019 and the beginning of 2020.” 264 The ALJ correctly rejected

Complainant’s argument on the timing of non-Makor performance problems.

260F

261F

262F

263F

Third, the performance review itself is consistent with blowups and poor

performance also taking place in the second half as well. It states that

Complainant’s conduct was worse in the first half but improved in the second half,

not that Complainant behaved perfectly without incident in the second half of

2018. 265 From Coady’s perspective, he could have viewed Complainant’s effort to

exclude him from managing shop floor employees or going over his head to

undermine his role as CEO more poignant in Complainant’s insubordination than

the ongoing DreamCraft conflicts. The point relevant to Complainant’s appeal is

that the heated exchanges: (1) occurred, (2) were not related to Makor, and (3) were

a significant, ongoing problem and one of many examples of Complainant’s

undermining and not supporting Coady as CEO.

264F

B. Protected Activity Post-August 2018

After August 2018, Complainant’s grievances on Makor dissipated. The ALJ

noted a “direct contradiction” between Complainant and Respondent as to whether

complaints about Makor continued into 2019. 266 The ALJ cited Complainant’s lack

of evidence for expressed complaints on Makor in 2019 while there is an abundance

of evidence, including multiple tape recordings and emails, from Complainant for

complaints on Makor in mid-2018. 267 Ultimately, the ALJ concluded there were

some passing references about the Makor permits after August 2018 into 2019. 268

265F

266F

267F

Complainant had strong objections to Coady’s pursuing the DreamCraft line in early

2018 when Coady came on board. D. & O. at 3, 17. This was a source of tension. There was

also a heated exchange during the unveiling of DreamCraft. Id. at 11.

261

262

Tr. 303.

263

Tr. 408-09.

264

Id. at 367.

CX 18 (“you made a nice correction in 2d half of year on receiving input and

redirecting your focus.”); Resp. Br. at 3 (“Mr. Gregory still faced ‘a long road to rebuild.’”).

265

266

D. & O. at 9.

Id. at 9; Id. at 6 & n.19 (noting that there were some comments about the last

protected activity being in August 2018 when Complainant spoke to Derek Douglas).

267

268

Id. at 9.

Complainant testified that his communications sometime between September and

November of 2019 were casual, “minor” follow-up questions on Makor, and did not

elicit any threat of termination or hostility. 269

268F

4. Events in 2020

This brings us to 2020 and the main events triggering Complainant’s

suspension and termination. The following constitutes additional substantial

support for the ALJ’s findings that Respondent would have terminated

Complainant’s employment in the absence of protected activity concerning Makor.

A. March 3, 2020 Board Meeting and Kelly Gregory’s Drive to MNE

Headquarters

Respondent held a board meeting on March 3, 2020. 270 Complainant, Coady,

and Peter Murphy (CEO of the parent company MNE) were present. According to

Complainant’s testimony, shortly before the meeting began, Coady answered

Murphy’s question on the status of the Makor permit by affirming that they were

still in the process of getting approval. 271 According to Complainant’s testimony,

this was the last straw, he went home, became ill, and discussed the issue with his

wife, Kelly Gregory. 272

269F

270F

271F

Ten days after the board meeting, Complainant’s wife inexplicably left her

house at 11:00 pm for a twelve-hour drive to MNE headquarters in Oklahoma. 273

Kelly Gregory located the HR director, Gena Lankford, and was able to schedule a

meeting the next day. Mrs. Gregory recorded the meeting. Taking her cues from

Complainant’s notes from the Board meeting and communications with her

husband, 274 she unloaded on Coady’s and Rodriguez’s moral turpitude, competence,

and leadership. The ALJ summarized Complainant’s grievances with senior

leadership:

272F

273F

•

The Makor permit

Investing in DreamCraft rather than equipment to meet current demand

Investing in a new closet line when unable to support current products

Implementing a hiring freeze when workforce couldn’t meet current demand

269

Tr. 429.

270

RX 4 (slide deck for Board meeting).

271

D. & O. at 9.

272

Id. at 8.

273

RX 10 at.4; Tr. 249.

274

RX 5 (Complainant’s notes from meeting).

•

Continuing to operate when ransomware brought the computers down

Describing a significant ransomware attack as a “software glitch”

Running short of cash because of ransomware and DreamCraft decisions

Reporting that down days were taken for the rodeo when they were in reality

for low sales

Reprimanding Complainant for reporting problems to Douglas

Repeatedly threatening to fire Complainant

Spending $30,000 on unsuccessful paycheck implementation

Purposefully misapplying freight on warranties and overstating revenue by

$1-2M 275

274F

As reported through Kelly Gregory, Complainant had severe disagreements

with and a lack of confidence in Respondent’s leadership, specifically criticizing

Coady’s and Rodriguez’s honesty among other faults. The ALJ found that

Complainant’s wife’s statements “corroborat[e]” Complainant’s view of Coady’s

mismanagement of the company. 276 The ALJ found “[t]he record is clear that the

allegations she made to [Lankford] came from Complainant.” 277 Summarizing,

Kelly Gregory reported that Complainant believed Coady was not competent to run

the business, was abusive, and that the company, under current leadership, was

engaging in fraudulent activity. 278 Kelly Gregory stated:

275F

276F

277F

. . . and this isn’t about him against JW or anything else.

But I’m going to look you straight in the face and tell you,

JW, he’s not qualified and he’s blowing snow over most of

these people.[ 279]

278F

She continued:

Put [Coady] in a room by himself and ask him to do the

math on anything, truly. Ask him to show his work and

then I’ll be a little exaggerating, but he doesn’t know. He

throws out words. He’s a phrase guy. . . .[ 280]

279F

275

D. & O. at 19.

276

Id. at 12.

Id. at 20; Id. at 4 (Mrs. Gregory “presented a series of grievances her husband had

discussed with her about Coady’s mismanagement.”).

277

278

Id. at 18.

279

RX 10 at 10.

280

Id. at 10.

She urged Lankford to keep her investigation confidential because if someone tells

Coady or Rodriguez before Monday, “all the lies will be covered up and you won’t

find anything out.” 281

280F

According to Mrs. Gregory, Coady was responsible for people leaving

Respondent:

. . . I’m going to tell you straight up right now, if [Coady]

has a breath, you’re screwed . . . Because he will throw

anybody under the bus.[ 282]

281F

She then went on an extended discussion as to how Coady “threw Josh [Marones]

under the bus.” 283 Josh is the son-in-law of Kelly Gregory and Complainant. 284

282F

283F

She summarized Respondent’s poor business decisions and Coady’s spending

capital:

Also, [Coady] lied about equipment expenses and things

like that. So essentially he was saying that they invested,

it was like 60 million dollar revenue, 58 million dollar

revenue comes from BJ Tidwell, the rest from DreamCraft,

maybe. And there’s essentially been no money invested in

upgrading equipment that’s 35 years old, that’s breaking

down on a daily basis. I mean, it’s sort of been the JW show

on that side and really just not smart investing in the

money making side of the machine.[ 285]

284F

In 2018, Respondent suffered a ransomware event that paused operations.

Complainant and Coady disagreed as to how to inform customers. 286 From Mrs.

Gregory’s statement, the void between Coady and Complainant on the ransomware

incident was so severe that Complainant thought he might be fired for conflicting

with what Coady wanted to do. 287

285F

286F

281

Id. at 27.

282

Id. at 28.

283

Id. at 29-31.

284

Id.

285

Id. at 14.

286

Id. at 9; Tr. 89-90.

287

RX 10 at 9.

Kelly Gregory provided extended comments about “scary money spending”

and spending additional money on new product lines on top of that extravagant

spending: 288

287F

. . . [Complainant] said we can’t make money on

DreamCraft right now. He said, first of all, he said none of

our customers even like JW. They can’t stand him, because

he’s such an asshole. He’s me, mine, I, me, mine, I and he’s

so rude to them that nobody wants to do business with him

and he’s investing all of this money into something that

isn’t selling. Why are we not building the business that is

selling? So that then we can put money into what we want

to build on. Then let’s do DreamCraft. He [Complainant]

says, I’m not saying let’s not do it [DreamCraft], but why

are we doing that when we’ve got machines that are older

than my kids. That are breaking down, that are supporting

the business. So that actually was the closet line, that’s

why I write it in there. That’s when he started crying.[ 289]

288F

Mrs. Gregory identified alleged financial malfeasance concerning calculating

warranty revenue. 290 As the ALJ summarized, Complainant’s complaint was that

mismanagement resulted in a million-dollar fraud for overreporting warranty

revenue. 291

289F

290F

Complainant’s complaints were not limited to Coady. Lankford asked Kelly

Gregory if Complainant had tried to speak to Oscar Rodriguez. She replied Oscar

was a big part of the problem, too, 292 that Rodriguez would do whatever Coady told

him to do, 293 and that “Oscar is completely unqualified. I wish you would go spend

some time with him.” 294 According to Complainant’s wife, Oscar was mismanaging

paycheck administration, headcounts, and other personnel management. 295

291F

292F

293F

294F

288

Id. at 14.

289

Id. at 15.

290

Id. at 17.

291

D. & O. at 18; see also RX 10 at 17-18, 20-21; RX 5.

292

RX 10 at 5.

293

Id. at 6.

294

Id. at 15.

295

Id. at 15-16.

Complainant’s wife discussed Makor as one of the grievances involving

Rodriguez. 296 She recounted a short summary of the mid-2018 conversations

discussed above. She reported that Coady had said at the Board meeting, in

response to Murphy’s question about the status, that the problem with getting the

permit “was the third-party vendor’s fault and that it was all being taken care

of.” 297 Since Complainant had been out of the loop, Kelly Gregory conceded

Complainant’s knowledge was incomplete. But as far as Complainant was aware,

the Makor permit was being “glossed over . . . and nothing has been done since then

[2018] . . . but now that may not be true, to be fair.” 298 Kelly Gregory acknowledged

that Complainant had first-hand knowledge in 2018 but was not involved in more

recent activity and did not know the current status of efforts taken by Respondent,

third-party vendors, or TCEQ. 299

295F

296F

297F

298F

Kelly Gregory had a number of good things to say about Complainant.

For the most part, most people go to Complainant to handle their problems rather

than Coady because Complainant was helpful but Coady was abusive and always

swearing. 300

299F

B. Suspension Recording and Termination Letter

Respondent acted swiftly after the Kelly Gregory meeting. Roughly one week

later, on March 20, 2020, Complainant was called into a suspension meeting

pending further investigation into allegations made by Kelly Gregory. 301

Coady informed Complainant that he just completed a phone call with the Board’s

attorney and Murphy, and he had to suspend Complainant indefinitely:

300F

For failure to protect and support privileged and

confidential information contained in a closed door board

meeting . . . in violation of your signed employment

contract dated December 1st, 2017.[ 302]

301F

Complainant expressed dismay and asked what information he divulged.

Coady explained that he was not privy to all of the details, but Kelly Gregory had

296

Id. at 5, 11.

297

Id. at 13.

298

Id.

299

Id. at 12-13.

300

Id. at 18, 19.

301

RX 13.

302

Id.

delivered the information to the Board in person. Complainant asked follow-up

questions, but Coady did not have answers only that:

Private information that was only in that board meeting

somehow got to your wife. Your wife somehow got that to

the board. There will be an investigation and we’ll go from

there. You know what I know.[ 303]

302F

Most of the facts necessary for Complainant’s case arise from the hostility and

interaction between Coady and Complainant. Yet, the suspension in part came from

the parent company—to whom Kelly Gregory had complained roughly one week

earlier. The ALJ observed:

Complainant testified Coady told him “I just got off the

phone with Peter Murphy and our lawyers. Effective

immediately, you are suspended for distributing

confidential information.” Complainant agreed that both

Coady and Rodriguez appeared to be surprised by the call

and suspension and did not believe either was involved in

any sort of effort to get him placed on suspension.[ 304]

303F

In fact, Coady seemed to have a bit of sympathy for Complainant during the

suspension meeting, stating “I wish if there was a problem you would have fricking

come to me . . . .” 305

304F

The suspension meeting was followed by an investigation and termination on

March 31, 2020. 306 The termination letter stated that Complainant was being

terminated for violating company confidentiality as well as the ongoing lack of

support for Respondent’s management and the direction of Respondent’s business

operations. 307 It states:

305F

306F

The decision to terminate your employment is based on

your unauthorized disclosure of confidential Company

information to your wife, Kelly Gregory, and your ongoing

lack of support for Nation’s management and the direction

of Nation’s business operations. It is the opinion of the

303

Id.

304

D. & O. at 11.

305

Id. (citing transcript of suspension phone call).

306

CX 12.

307

Id.

Company’s management that we must go in a different

direction at this time.[ 308]

307F

The ALJ summarized Coady’s testimony concerning the investigation and

final termination decision, which the ALJ found to be consistent with Complainant’s

account:

[Coady] had conversations with the attorney for the board,

Gena Lankford, and Peter Murphy. Their discussions were

around the allegations that Kelly Gregory had made to

Lankford and the four-page document she left. He

primarily answered questions about the allegations. They

asked if [Coady] had lost confidence in Complainant and

his answer was yes, because of the false allegations. He

also noted Complainant’s repeated lack of support for the

direction he wanted to take the company. Complainant

would begrudgingly go off and make a half-hearted attempt

to get something done. He had no objection to Complainant

raising the risks of a decision, but the false allegations he

made regarding financial misgivings and wrongdoings

were beyond the pale. Complainant was also at odds with

Rodriguez and Dobson, the vice-president of sales.

Complainant would make it very well-known to his team

or to the shop team his dissatisfaction with the company

direction and in fact would undermine his decisions. On the

final conversation with Peter Murphy, they agreed to

terminate Complainant, having been advised by the

corporate counsel.

Even if Kelly Gregory had not gone to Lankford, he believes

Complainant would still have been terminated, because his

performance was declining and he was continuing his

behavior of not supporting the direction of the company.

The termination came right on the heels of Kelly Gregory’s

trip because she asserted financial wrongdoing, along with

accusing him of foul language and a litany of other

complaints. The company attorneys looked into it and there

was no basis for it.[ 309]

308F

308

Id.

309

D. & O. at 11; Tr. 46-47.

C. Substantial Evidence Supports the ALJ’s Findings that Respondent Would

Have Terminated Complainant for Failing to Support Senior Leadership

Even in the Absence of Protected Activity

The above constitutes substantial evidence supporting the ALJ’s finding that

Respondent had proven its same-action defense that it would have suspended and

terminated Complainant for not supporting Respondent’s leadership even if he had

not made the complaint concerning the Makor. This evidence is found in:

(1) the tone of Complainant’s communications to Coady and Douglas,

(2) the testimony of Complainant, Coady, and Rodriguez showing the conflicts

between Complainant and Respondent on non-Makor topics; (3) Respondent’s prior

warning to Complainant about supporting management and Complainant’s poor

performance review for lack of support; (4) the Kelly Gregory incident reflecting

Complainant’s acidic views toward senior leadership and Respondent’s immediate

reaction thereafter; (5) the suspension record; and (6) the termination letter

showing that after an investigation, Respondent decided to fire Complainant for,

among other reasons, “ongoing lack of support” for management.

There is no doubt that Makor was a part of Complainant’s reporting.

Yet, Complainant’s grievances and conduct went far beyond the Makor permit and

rose to the level of challenging Respondent’s basic business direction, competence,

and leadership. The ALJ cited Coady’s perception that Complainant’s false

allegations (through Kelly Gregory and Complainant’s notes) regarding financial

wrongdoing were “beyond the pale.” 310 There was undisputed significant tension

between Complainant’s vision for corporate spending and Coady’s direction.

The record, including Complainant’s testimony, shows two bitter interactions in

particular that nearly resulted in Complainant’s termination: (1) spending and the

DreamCraft line and (2) differences in how to mitigate the fallout from the

ransomware attack. Complainant testified that Coady verbally attacked him and

got within six inches of his face and threatened to fire him following a DreamCraft

dispute. 311 As the ALJ noted this was “notably . . . unrelated to the Makor

permit.” 312 Kelly Gregory reported that Complainant’s disagreement with Coady

regarding decision-making after the ransomware attack almost got him fired. 313

This is supporting evidence how hostile the non-Makor disputes became between

Complainant and Coady. Respondent cited Complainant in 2018 and again in his

2019 performance review for not supporting the CEO and senior leadership. 314

309F

310F

311F

312F

313F

310

D. & O. at 11.

311

Supra note 244.

D. & O. at 11; see also id. at 17 (citing Complainant’s testimony in the ALJ’s sameaction defense analysis).

312

313

RX 10 at 9, 17.

314

D. & O. at 10-11.

The record strongly supports the ALJ’s finding that Kelly Gregory’s

communications precipitated Complainant’s suspension, the investigation into that

complaint, and ultimately, Complainant’s termination from employment. 315

314F

From a causal lens in March 2020, the protected activity concerning Makor

was old. As early as fall 2017, before Complainant started his employment with

Respondent, Respondent had known about and was in the process of addressing the

Makor problem. As noted above, these efforts to obtain a permit for Makor align

with Complainant’s concerns on compliance. Respondent appreciated Complainant’s

voicing concerns on Makor. 316 Respondent was working on submitting

documentation to TCEQ through Rodriguez and Source Environmental. 317

Coady explained to the Board in March of 2020 that they had hired a new thirdparty consultant to obtain the permit. 318 The premise that the company, making

such an effort at getting a permit for compliance before and after Complainant’s

protected communications, would retaliate against one of their employees for

identifying the very goal they were working to accomplish is counterintuitive and

not particularly well placed in this record. 319

315F

316F

317F

318F

The ALJ rejected the argument that Respondent’s frustration with

Complainant was pretext for retaliation for protected activity:

The evidence paints a relatively clear picture that after

Complainant talked to Douglas and was hired, he

anticipated becoming CEO or at least having a significant

say in both the strategic and tactical management of the

company. When Coady took over, his expectations were

frustrated. That frustration became much more

pronounced as he watched Coady make what in his view

were a series of bad decisions that constituted existential

threats to the company and its employees. Complainant

chafed at being told the decisions were above his level of

authority and he needed to support them, whether he

315

Id. at 12.

316

Supra notes 194, 214, and 216.

317

Id.; supra notes 196-97.

318

D. & O. at 9; RX 10 at 13.

Cf. Dafoe v. BNSF Ry. Co., 164 F. Supp. 3d 1101, 1115 (D. Minn. 2016) (finding

BNSF Railway responded positively to the employee’s safety complaints, which undermined

the employee’s retaliation claim); Reid v. Neighborhood Assistance Corp. of Am., 749 F.3d

581, 589 (7th Cir. 2014) (declining to find an inference of retaliatory intent where

complaints did not escalate for six months prior to termination but became less serious and

termination was immediately preceded by an intervening event unrelated to complaints).

319

agreed with them or not. He went over Coady’s head to

complain to Douglas and was told the same thing. In short,

Coady and Douglas’ citation to their dissatisfaction with

Complainant’s failure to support the CEO is fully

supported by the evidence and not a pretext without

substantiation.[ 320]

319F

In reversing the ALJ’s decision, the majority emphasizes that Respondent

shifted reasons for terminating Complainant, and this is evidence of pretext. 321

I disagree. When presented with Complainant’s serrated views of Coady’s and

Rodriguez’s incompetence, lack of honesty, and financial malfeasance through

Mrs. Gregory, Respondent suspended him pending an investigation for violating

company confidentiality rules. An investigation followed, and the termination letter

included both a violation of company confidentiality and added the ongoing lack of

support of Coady and Rodriguez. Respondent’s reasons never contradicted this core

component. 322

320F

321F

Complainant filed a claim of retaliation for whistleblowing in violation of the

CAA. That Complainant’s entire personnel file was introduced into the litigation in

responding to Complainant’s claim of retaliation is not grounds for a finding that

Respondent’s reasons were evidence of pretext. The majority’s argument misstates

what constitutes “shifting reasons” for purposes of supporting a finding of pretext.

When the employer’s subsequent reasons plainly contradict prior reasons, courts

are on better footing for deeming “shifting reasons” as evidence of pretext. 323

322F

320

D. & O. at 19-20; Resp. Br. at 10-11.

321

Supra, at 20-24.

The majority cites Respondent’s letter to Texas Workforce Commission in response

to Complainant’s request for unemployment benefits. Supra, at 20-21. According to the

majority, Respondent’s answer exhibits shifting reasons. In its response, Respondent

provided broad language for Complainant’s discharge including “discharge from his position

. . . for misconduct connected to his job. . . [discharge for] past misconduct and

transgressions.” Rodriguez Dep. Ex., C (April 27, 2020 Letter to Texas Workforce

Commission). The letter signed by Rodriguez is consistent with the March 20, 2020

suspension and March 31, 2020 termination reasons given by Respondent and relied upon

by the ALJ. Wesolowski v. Napolitano, 2 F. Supp. 3d 1318, 1345 (S.D. Ga. 2014) (granting

summary judgment where proffered non-discriminatory reasons did “not give the Court any

pause, nor could it for any rational fact finder, that . . . testimony is so inconsistent as to

imply that Defendant’s stated reasons are pretexts for retaliation”); cf. Hale v. Husfelt, 772

F. App’x 782, 784 (11th Cir. 2019) (no pretext shown when employer first stated it wanted

to “go in a different direction” but then gave additional reasons in response to plaintiff’s

express request for more specific feedback about his performance).

322

An employer’s inconsistent explanations for an employment decision “cast doubt” on

the truthfulness of those explanations. Gee v. Principi, 289 F.3d 342, 347-48 (5th Cir. 2002);

see also Pate v. Chilton Cnty. Bd. of Educ., 853 F. Supp. 2d 1117, 1133 (M.D. Alab. 2012)

323

Courts do not generally treat expanding or cumulative reasons as “shifting reasons”

for purposes of circumstantial evidence supporting a finding that the employer’s

reasons were pretextual. 324 Here, Respondent never contradicted these bases of

violating confidentiality and ongoing lack of support of senior leadership. Rather

Respondent’s litigation briefing, including abusive language and inappropriate

physical contact, is an expansion upon Respondent’s contemporaneous suspension

and termination reasons. 325

323F

324F

(“The new reasons relied on in litigation must plainly contradict the reasons relied on at the

time of the decision to be found to be pretextual. The reasons must contradict each other,

and not merely be cumulative.”); see generally Bechtel Constr. Co., 50 F.3d at 935 (“During

the proceeding, the ALJ asked Bechtel whether Nichols’ job performance or medical

condition of arthritis were issues in the case. Bechtel indicated that they were not,

attributing his dismissal rather to his attitude, his “gung ho nature.” Yet, on appeal,

petitioner’s argument is cast entirely as if the layoff was due to poor job performance,

exacerbated by Nichols’ arthritic condition. Given that, on the record, Bechtel has indicated

that these issues were not factors in Nichols’ termination, we will not now consider them.”).

Musser v. Paul Quinn Coll., 944 F.3d 557, 564 (5th Cir. 2019) (“It is true that ‘[a]n

employer’s inconsistent explanations for an employment decision’ may give rise to an

inference of pretext in some cases. But in those cases, the employers gave fundamentally

different reasons for their decisions on appeal than they did in the district court or before

litigation commenced.”) (internal citations omitted); Tidwell v. Carter Prods., 135 F.3d

1422, 1428 (11th Cir. 1998) (holding that additional, but undisclosed, reasons for an

employer’s decision do not demonstrate pretext); Zaben v. Air Prod. & Chem., Inc., 129 F.3d

1453, 1458-59 (11th Cir. 1997) (concluding that the plaintiff failed to show pretext where,

although the employer offered differing explanations for its decision, its reasons were not

necessarily inconsistent).

324

Minnis, 620 F. App’x at 220 (“We conclude, though, that proof of an employer’s

reasons becoming more detailed as the dispute moves beyond the initial notice to an

employee and enters into adversarial proceedings, is insufficient to create a jury question

regarding pretext absent an actual inconsistency.”).

325

In conclusion, I would hold substantial evidence supports the ALJ’s finding

that Respondent would have terminated Complainant’s employment in the absence

of protected activity. The Makor permit, while constituting a part of Complainant’s

grievances, was not part of the overall problem Respondent had with Complainant’s

rejecting leadership decisions and direction. Kelly Gregory’s meeting exacerbated

and substantiated Respondent’s perception of Complainant’s conduct—for which he

had been warned multiple times. With serious allegations against senior leadership

having been found to be without merit, Respondent had lost confidence in

Complainant’s ability to be part of the company and decided to part ways. I would

affirm the ALJ’s opinion and deny the petition.

THOMAS H. BURRELL

Administrative Appeals Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.