Gregory v. Nations Cabinetry, LLC

U.S. Department of Labor 	Administrative Review Board
200 Constitution Ave. NW
Washington, DC 20210-0001
IN THE MATTER OF:
JEFFREY L. GREGORY,
COMPLAINANT,
v.
NATIONS CABINETRY, LLC,
d/b/a BJ TIDWELL CABINETRY,
RESPONDENT.
ARB CASE NO. 2023-0049
ALJ CASE NO. 2021-CAA-00001
ALJ PATRICK M. ROSENOW
DATE: January 29, 2026
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.0F
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
1 	42 U.S.C. § 7622; 29 C.F.R. Part 24 (2025).

2
Complainant’s protected activity. Because substantial evidence does not support the
ALJ’s finding as to Respondent’s affirmative defense, we reverse.
B ACKGROUND AND P ROCEDURAL HISTORY
In December 2017, Respondent hired Complainant to serve as Chief
Operating Officer of Nations Cabinetry.1F
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.”2F
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.”3F
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.4F
5
Within a month of hiring Complainant, Respondent hired J.W. Coady to
serve as Chief Executive Officer.5F
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.6F
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.7F
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
2 	D. & O. at 3.
3 	RX 2 at 1 (Chief Operating Officer Job Description for BJ Tidwell Cabinetry).
4 	Id.
5 	Id.
6 	D. & O. at 3.
7 	Id.
8 	Id.; CX 9 at 1 (Email from Jeffrey Gregory to JW Coady, dated June 28, 2018).

3
professional ethics.”8F
9 Complainant told Coady that these three issues had “a grossly
negative impact” on him.9F
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.10F
11 Following this conversation, Coady called
Complainant into his office to ask whether Complainant supported him and was on
his team.11F
12 Complainant testified that during this conversation, Coady essentially
threatened to fire him.12F
13 After being threatened with termination, Complainant
ceased directly bringing up issues related to the company’s environmental
compliance and permitting obligations.13F
14
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.”14F
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.”15F
16
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.16F
17
When asked about the risk of running equipment without the required permit,
9 	CX 9 at 1-2.
10 	Id. at 2.
11 	D. & O. at 3.
12 	Id. at 8.
13 	Id. at 10.
14 	Id. at 9.
15 	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.
16 	Id.
17 	D. & O. at 8.

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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.17F
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.18F
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.19F
20 While at home, Complainant shared this incident
with his wife as part of his regular practice of talking with her about workplace
issues.20F
21
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.21F
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.22F
23 Kelly
Gregory also made the unsubstantiated allegation that Coady had misstated
revenues by one to two million dollars.23F
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.24F
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.”25F
26
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
18 	Id.
19 	Tr. 289.
20 	D. & O. at 8.
21 	Id.
22 	Id. at 4; Tr. 491.
23 	D. & O. at 4.
24 	Id.
25 	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).
26 	D. & O. at 4; CX 12 at 1 (Jeffrey Gregory Termination Letter, dated March 31, 2020).

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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.26F
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.27F
28
The November 30 letter identified numerous inconsistencies with the
application and noted that “many critical representations are not current and are
inconsistent.”28F
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.”29F
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.”30F
31 From this point
until after Complainant was terminated, Respondent operated the Makor sprayer
without the required permit.
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
27 	RX 11 at 1.
28 	Id. at 3.
29 	Id. at 1.
30 	Id. at 3.
31 	Ex. J to Resp. Mot. for Summ. Decision, at 4.

6
Rodriguez.31F
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.32F
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 third-
party firm contracted by Respondent to assist with environmental compliance
issues.33F
34 During the call, Complainant expressed his concern that the Makor system
was not allowed to operate now that the permit application was voided.34F
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.35F
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.36F
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.”37F
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.38F
39
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.”39F
40 Complainant explained that even if an application could be
32 	Tr. 263.
33 	Id.
34 	Id. at 270.
35 	CX 15 at 8-9 (June 15, 2018 Audio Transcript).
36 	Id. at 11.
37 	Id. at 13.
38 	Id.
39 	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.”).
40 	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

7
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.40F
41 Coady asked if that meant that
“tactically [sic] we’ve been running the Makor noncompliant,” which Complainant
confirmed was the case.41F
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.”42F
43 After Coady left the call, Complainant and
Rodriguez continued to discuss the possibility of running the Makor sprayer without
the required permits:
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. [43F
44]
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.”44F
45 This exchange
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.
41 	Id.
42 	Id. at 24.
43 	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).
44 	Ex. F to Resp. Mot. for Summ. Decision at 29-30.
45 	CX 11 (Email from Jeffrey Gregory to JW Coady about the Makor, dated June 20,
2018).

8
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.”45F
46 In his testimony, Complainant
explained that this lack of trust related to the environmental issues.46F
47 The second
issue on Complainant’s list was the Makor sprayer, which he stated was
“[c]urrently running illegally[.]”47F
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.48F
49
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.49F
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.50F
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.”51F
52
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.52F
53 Complainant informed Douglas of the letters from
TCEQ and that the Makor was running without a permit.53F
54 Complainant testified
46 	CX 9 at 1.
47 	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[.]”
48 	CX 9 at 1.
49 	Id.
50 	CX 4 at 1 (Letter from TCEQ to Oscar Rodriguez, dated July 13, 2018).
51 	Id. at 1-3.
52 	CX 2 at 1 (Letter from TCEQ to Oscar Rodriguez, dated August 6, 2018).
53 	Tr. 279.
54 	Id.

9
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.54F
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.55F
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.56F
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.57F
58
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.58F
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.”59F
60
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.60F
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
55 	Tr. 279-81.
56 	D. & O. at 9.
57 	Tr. 289.
58 	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.
59 	Tr. 304-06.
60 	Tr. 305-08.
61 	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.

10
conducting.61F
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.62F
63 Complainant identified the same
issue in the permit for the Highway 90 plant.63F
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.”64F
65
Complainant initially raised this issue with Rodriguez, believing the error
with the calculations to be an oversight.65F
66 However, Rodriguez rebuffed
Complainant, questioning why he was looking into this at all, given that
environmental compliance was Rodriguez’ responsibility.66F
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.67F
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.68F
69
In the June 28, 2018 email concerning workplace concerns, the third issue
Complainant identified was the errors regarding VOC emission calculations.69F
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.”70F
71 Complainant pointed out that Texas had “several open environmental
regulatory compliance pressures,” which added to his concern.71F
72 Similarly, when
62 	Tr. 254-55.
63 	Tr. 255.
64 	Id.
65 	Id.
66 	Id. at 258.
67 	D. & O. at 9; Tr. 258.
68 	Tr. 261.
69 	Tr. 262.
70 	CX 9 at 1.
71 	Id.
72 	Id.

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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.72F
73 After their conversation, Complainant did
not hear back from Douglas on this topic.73F
74 As with the Makor permit, this issue
resurfaced when Kelly Gregory travelled to MNE headquarters and mentioned it to
Lankford.
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.74F
75
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.75F
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.76F
77
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
73 	Tr. 279.
74 	Id.
75 	D. & O. at 17.
76 	CX 9 at 1-2.
77 	Tr. 46.

12
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.77F
78 Coady’s final comments in the rating section
further emphasized this point. Coady wrote:
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. [78F
79]
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.79F
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.80F
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.81F
82
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,
78 	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.”
79 	Id. at 3.
80 	Tr. 293.
81 	Tr. 293-94.
82 	D. & O. at 11; Tr. 303-04.

13
Complainant’s wife traveled—without Complainant’s knowledge or approval—to
MNE’s headquarters in Oklahoma.82F
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.83F
84
Specifically, Kelly Gregory alleged that Coady may have been overreporting
warranty revenue by as much as $1 million.84F
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.85F
86
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.”86F
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.”87F
88
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
83 	D. & O. at 4.
84 	D. & O. at 19; RX 10.
85 	D. & O. at 18; RX 10.
86 	RX 10 at 11 (Transcript of Conversation Between Kelly Gregory and Gena Lankford,
dated March 14, 2020).
87 	Ex. K to Resp. Mot. for Summ. Decision at 2; D. & O. at 4.
88 	CX 12 at 1.

14
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.88F
89
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.”89F
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.90F
91 Complainant timely appealed the ALJ’s decision
to the Board.
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.91F
92 We agree.
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.92F
93 We disagree.
89 	Resp. Mot. for Summ. Decision.
90 	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).
91 	D. & O. at 20-21.
92 	Comp. Br at 21.
93 	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).

15
J URISDICTION AND S TANDARD OF R EVIEW
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.93F
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.94F
95
Substantial evidence is “such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.”95F
96
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.96F
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.97F
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.98F
99
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.99F
100 Respondent raised the same
94 	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).
95 	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.”).
96 	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))).
97 	42 U.S.C. § 7622(a).
98 	29 C.F.R. § 24.109(b)(2).
99 	Id.
100 	Respondent’s Brief (Resp. Br.) at 6.

16
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.”100F
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.”101F
102 The ALJ further
noted that this view is the one that Circuit Courts have “almost unanimously”
adopted.102F
103
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. [103F
104]
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.
102 	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).
103 	Id.
104 	42 U.S.C. § 7622(a); see also 29 C.F.R. § 24.102(b).

17
complaints relating to public health or the environment.104F
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’.”105F
106
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.”106F
107 In another decision involving then-identical107F
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.”108F
109
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 1999.109F
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.110F
111
Respondent’s reliance on Macktal and Brown & Root is misplaced. We have
105 	See generally Iwaseczko v. Teton Cnty. Weed & Pest Control Dist., ARB No. 2022-
0059, 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).
106 	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).
107 	Passaic Valley Sewerage Comm’rs v. U.S. Dep’t of Lab., 992 F.2d 474, 480 (3d Cir.
1993).
108 	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.””).
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)).
111 	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.”).

18
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.111F
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.”112F
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.”113F
114
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.114F
115 In his decision, the
112 	Willy v. Coastal Corp., ALJ No. 1985-CAA00001, slip op. at 7, 1994 WL 897203
(Sec’y June 1, 1994).
113 	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).
114 	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.”).
115 	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.

19
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.115F
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.116F
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.117F
118 We review this finding under a substantial
evidence standard.
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.”118F
119 Under this standard, the ”threshold for
such evidentiary sufficiency is not high.”119F
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.”120F
121
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.”121F
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
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).
121 	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)).
122 	Bobreski v. J. Givoo Consultants, Inc., ARB No. 2009-0057, ALJ No. 2008-ERA-
00003, slip op. at 8-9 (ARB June 24, 2011) (quoting Universal Camera Corp., 340 U.S. at
488).

20
by countervailing evidence.”122F
123 Additionally, we have recognized that “evidence is
not substantial if it is overwhelmed by other evidence or if it really constitutes mere
conclusion.”123F
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.124F
125
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.125F
126
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.126F
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.127F
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
123 	Bobreski, ARB No. 2009-0057, slip op at 9 (quoting Dorf v. Bowen, 794 F.2d 896, 901
(3d Cir. 1986)).
124 	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)).
125 	See Dickinson v. Zurko, 527 U.S. 150, 162 (1999) (contrasting the substantial
evidence standard with the clearly erroneous standard of review).
126 	D. & O. at 20.
127 	Ex. K to Resp. Mot. for Summ. Decision.
128 	CX 12 at 1.

21
exchange, the accusations Kelly Gregory made to Lankford, and Complainant’s
“proclivity to disclose [the] Company’s confidential and propriety information.”128F
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.”129F
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.”130F
131
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).131F
132
Respondent’s focus, however, was on Complainant’s purported breaches of
confidentiality which it described as “wide-ranging” and “most egregious[].”132F
133
The ALJ rejected the first three proferred reasons (the tap/kick, the cursing
incident, and the breaches of confidentiality) as wholly lacking in credibility.133F
134
We give ALJ credibility determinations “great deference” and rely on them unless
they are “inherently incredible or patently unreasonable.”134F
135 Here, the ALJ found
that “[n]either Coady nor Rodriguez were particularly credible in their testimony
about” cursing in the workplace.135F
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.136F
137 Most damningly, the ALJ found that it “appears
129 	Ex. D-7 To Comp. Response to Resp. Mot. for Summ. Decision.
130 	Id.
131 	Sec’y’s Findings, Case #6-1550-20-062, Occupational Safety and Health Admin. (Oct.
18, 2021).
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.
135 	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-SDW-
00001, slip op. at 12 (ARB Oct. 31, 2008)).
136 	D. & O. at 13.
137 	Id. at 14.

22
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.”137F
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.138F
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.”139F
140
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.140F
141 We have made the same observation
when it comes to an employer’s same action defense.141F
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.”142F
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.143F
144
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.
141 	Clemmons v. Ameristar Airways, Inc., ARB No. 2008-0067, ALJ No. 2004-AIR-00011,
slip op. at 9 (ARB May 26, 2010).
142 	Douglas v. Skywest Airlines, Inc., ARB Nos. 2008-0070, 2008-0074, ALJ No. 2006-
AIR-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 . . . .”).
143 	Vieques Air Link, Inc. v. U.S. Dep’t of Lab., 437 F.3d 102, 110 (1st Cir. 2006).
144 	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).

23
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,”144F
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.145F
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.146F
147
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.
146 	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).
147 	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)).

24
provided to the Texas Workforce Commission. This partial absence from previous
documentation is additional evidence of pretext that the ALJ failed to consider.147F
148
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.”148F
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.
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.149F
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.”150F
151 In the evaluation, Coady was clear that
he had “seen good progress made in this regard.”151F
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.152F
153 Respondent does not challenge that the middle
of 2018 is when Complainant’s protected activity ceased: Coady testified that
148 	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.”).
149 	Timmons v. Franklin Elec. Coop., ARB No. 1997-0141, ALJ No. 1997-SWD-00002,
slip op. at 7 (Sec’y Dec. 1, 1998).
150 	CX 18 at 3.
151 	Id.
152 	Id.
153 	Tr. 293.

25
August 2018 is the last time he had any conversation with Complainant regarding
environmental compliance matters.153F
154 Additionally, in both its pre- and post-
hearing 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.
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.”154F
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.”155F
156 This response came immediately prior to Complainant stating that
the environmental permits were “the only thing [he] changed.”156F
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.
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.157F
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.”158F
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.”159F
160 The ALJ made no effort to
154 	Tr. 78.
155 	D. & O. at 10.
156 	Tr. 293.
157 	Id.
158 	D. & O. at 9.
159 	Id.
160 	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

26
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.160F
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[.]”161F
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.”162F
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.
The dissent also argues that substantial evidence supports the claim that
Respondent and its senior management were diligently working toward getting the
Makor permitted.163F
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.”164F
165 Additionally, even if this claim is only intended to show that
’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.”
161 	Infra, at 33 (“[W]hen Complainant brought concerns about Makor to Coady and
Rodriguez, they accepted and appreciated his concerns[.]”).
162 	Tr. 286.
163 	D. & O. at 19.
164 	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”).
165 	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)).

27
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.165F
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.”166F
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[.]”167F
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.168F
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
166 	Ex. F to Resp. Mot. for Summ. Decision at 29-30.
167 	CX 11.
168 	CX 9 at 1.
169 	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.

28
equipment without the legally required permit.169F
170
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.170F
171
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.171F
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.
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.
172 	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).

29
made CEO that produced the friction between him and Coady.172F
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:
Q) 	In fact, [you’re] the second highest ranking officer of the company, right?
A) 	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.”173F
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.174F
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.”175F
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.176F
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.
The ALJ also quoted another exchange from Complainant’s testimony, this
one regarding the DreamCraft line:
Q) 	It sounds like your interactions with Mr. Coady about this DreamCraft
product line were fairly contentious. Is that right?
A) 	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.

30
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.177F
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.”178F
179
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.”179F
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.”180F
181
The ALJ failed to consider the significant evidence that contradicts his findings.181F
182
A review of the evidentiary record shows that the ALJ did not discuss or evaluate
the following evidence in his D. & O.:
• 	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.
180 	Bobreski, ARB No. 2009-0057, slip op. at 8-9 (quoting Universal Camera Corp., 340
U.S. at 488).
181 	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)).
182 	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.

31
• 	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.
C ONCLUSION
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

32
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.182F
183 As the United States
Supreme Court has noted, “[t]he threshold for such evidentiary sufficiency is not
high.”183F
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.’”184F
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.185F
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.186F
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.
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.187F
188 Even so, a respondent may avoid
183 	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).
184 	Biestek, 587 U.S. at 102-03.
185 	Id. (citing and quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
186 	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).
187 	See Gale v. Ocean Imaging & Ocean Res., Inc., ARB No. 1998-0143, ALJ No. 1997-
ERA-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).
188 	29 C.F.R. § 24.109(b)(2).

33
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.188F
189
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.189F
190 Respondent considered Complainant’s
conduct as a whole as not supporting senior leadership.190F
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.
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.191F
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.192F
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.193F
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
189 	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).
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.
194 	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).

34
and Complainant’s termination in 2020.194F
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.195F
196 This process was completed
in 2021.196F
197
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.197F
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.”198F
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.199F
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):
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.
196 	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).
197 	Tr. 213.
198 	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.
199 	Comp. Br. at 8, 12.
200 	Ex. F to Resp. Mot. for Summ. Decision, at 21.

35
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 fee-
JW 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,

36
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.200F
201
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).201F
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.202F
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.
201 	Ex. F to Resp. Mot. for Summ. Decision, at 24-25.
202 	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.
203 	CX 4.

37
The dialogue between Respondent and TCEQ continued throughout 2018.203F
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.204F
205 TCEQ acknowledged the technical difficulty in obtaining a permit:
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. [205F
206]
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 2018.206F
207 It is not clear what
efforts took place thereafter in 2019. A permit was obtained in 2021.207F
208
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:
204 	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.
205 	CX 3.
206 	Id.
207 	CX 1.
208 	Tr. 213.

38
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!!
JG208F
209
Coady responded to Complainant’s email that he had contacted Rodriguez and felt
they will have the information by the end of the week.209F
210 Coady continued that
management will work with Source Environmental to get documents filed correctly.
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
JW210F
211
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.211F
212
The record shows that Respondent did submit documents to TCEQ on or about June
209 	CX 10 (Email exchange between Jeffrey Gregory and JW Coady, dated June 20,
2018).
210 	Id.
211 	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.
212 	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).

39
30, consistent with the goal discussed in the June 15 call.212F
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.213F
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.214F
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.”215F
216
Shortly thereafter, Complainant sent Coady a June 28, 2018 email with the
subject line “Exercise # 2 update.”216F
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.
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 activity217F
218 but was also
correct that it reveals Complainant’s mindset toward senior leadership.218F
219
Category # 1 was Complainant’s “lack of trust” of Rodriguez and his ethics “or
lack thereof.”219F
220 Complainant identified in Category # 2 Makor’s current non-
compliant status220F
221 discussed previously on June 15 and June 20 but repeated that
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.
218 	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.
219 	Id. at 10, 17.
220 	CX 9.
221 	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.

40
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. [221F
222]
Complainant felt Rodriguez was being “favored” and “allowed to conduct business”
contrary to Complainant’s vision for the company.222F
223 Category # 3 is a related issue
of volatile organic compounds (VOC) and the integrity of information to and from
Source Environmental.223F
224
Complainant’s June 28 email as a whole demonstrates that Complainant
wanted more power to execute and influence business outcomes.224F
225 Under a heading
“Staffing operations area,” Complainant placed himself and his reputation at the
helm of staffing. He states:
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. [225F
226]
Complainant had similar charges in re Coady’s leadership in areas of “purchasing
items and improvements.”226F
227 Complainant wrote in the email:
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.
224 	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.
225 	D. & O. at 17.
226 	CX 9.
227 	Id.

41
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. [227F
228]
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.”228F
229
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. [229F
230]
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. [230F
231]
228 	Id.
229 	Id.
230 	Id. After Complainant wrote the June 28, 2018 email, he forwarded it to his
personal email account the same day.
231 	D. & O. at 17.

42
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.231F
232 However, the ALJ found that
Complainant raised more than the Makor to Douglas in August 2018.232F
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.233F
234
Douglas sided with Coady. As the ALJ stated “Douglas told him Coady was in
charge and he needed to get in line.”234F
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.235F
236 Complainant
acknowledged that Douglas instructed Complainant of his role vis-à-vis Coady’s role
as CEO.236F
237
232 	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.
233 	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.
234 	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).
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,

43
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.237F
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.238F
239
Complainant agreed to support Coady as part of the resolution going forward.239F
240
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.240F
241 The ALJ summarized Coady’s testimony:
[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. [241F
242]
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.242F
243 In a separate incident over DreamCraft, Complainant testified that
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).
240 	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.”).
241 	D. & O. at 18.
242 	Id. at 18; Tr. 46-48.
243 	D. & O. at 3, 17.

44
Coady verbally attacked him and got within six inches of his face and threatened to
fire him over this grievance.243F
244
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. [244F
245]
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.245F
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.”246F
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.”247F
248
These incidents support the ALJ’s finding that Complainant had an agenda
for more power in the company.248F
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
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.

45
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 2019.249F
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:
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. [250F
251]
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. [251F
252]
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.252F
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
250 	CX 18.
251 	Id.
252 	D. & O. at 18.
253 	Id. at 10.

46
thought they should continue to ship, using hard copy paperwork to manually load
the trucks, and continue supplying product to customers. Complainant
disagreed.”253F
254 This difference created significant pressure between Coady and
Complainant.254F
255
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 2018.255F
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.256F
257 Thus, according
to Complainant, Respondent’s problems with his performance overlap with Makor
protected activity but not with non-Makor grievances.
There are a few problems with Complainant’s argument. The ALJ was correct
to reject it.257F
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 non-
Makor 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 2018.258F
259
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.259F
260 Complainant’s testimony on
the dates for this blowup are vague and shifting. Complainant states “Judge, I can’t
254 	Id. at 18.
255 	RX 10 at 9, 10 (Kelly Gregory stating to the parent company that divisions between
the two almost resulted in Complainant losing his job).
256 	Supra, at 11-12.
257 	D. & O. at 10-11.
258 	Id. at 10-11.
259 	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).
260 	Supra, at 25-26.

47
say that I remember. It [hostile interaction at DreamCraft’s unveiling260F
261] was
towards the end of 2018” but Complainant is not clear on which month.261F
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.262F
263
Elsewhere, he testified more confidently that DreamCraft disputes “persisted all the
way through 2019 and the beginning of 2020.”263F
264 The ALJ correctly rejected
Complainant’s argument on the timing of non-Makor performance problems.
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
2018.264F
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.
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 2019.265F
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-2018.266F
267 Ultimately, the ALJ concluded there were
some passing references about the Makor permits after August 2018 into 2019.267F
268
261 	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.
262 	Tr. 303.
263 	Tr. 408-09.
264 	Id. at 367.
265 	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.’”).
266 	D. & O. at 9.
267 	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).
268 	Id. at 9.

48
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.268F
269
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, 2020.269F
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.270F
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.271F
272
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.272F
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,273F
274 she unloaded on Coady’s and Rodriguez’s moral turpitude, competence,
and leadership. The ALJ summarized Complainant’s grievances with senior
leadership:
• 	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).

49
• 	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
$1-2M274F
275
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.275F
276 The ALJ found “[t]he record is clear that the
allegations she made to [Lankford] came from Complainant.”276F
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.277F
278 Kelly Gregory stated:
. . . 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. [278F
279]
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. . . . [279F
280]
275 	D. & O. at 19.
276 	Id. at 12.
277 	Id. at 20; Id. at 4 (Mrs. Gregory “presented a series of grievances her husband had
discussed with her about Coady’s mismanagement.”).
278 	Id. at 18.
279 	RX 10 at 10.
280 	Id. at 10.

50
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.”280F
281
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. [281F
282]
She then went on an extended discussion as to how Coady “threw Josh [Marones]
under the bus.”282F
283 Josh is the son-in-law of Kelly Gregory and Complainant.283F
284
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. [284F
285]
In 2018, Respondent suffered a ransomware event that paused operations.
Complainant and Coady disagreed as to how to inform customers.285F
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.286F
287
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.

51
Kelly Gregory provided extended comments about “scary money spending”
and spending additional money on new product lines on top of that extravagant
spending:287F
288
. 	. 	. 	[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. [288F
289]
Mrs. Gregory identified alleged financial malfeasance concerning calculating
warranty revenue.289F
290 As the ALJ summarized, Complainant’s complaint was that
mismanagement resulted in a million-dollar fraud for overreporting warranty
revenue.290F
291
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, 291F
292 that Rodriguez would do whatever Coady told
him to do,292F
293 and that “Oscar is completely unqualified. I wish you would go spend
some time with him.”293F
294 According to Complainant’s wife, Oscar was mismanaging
paycheck administration, headcounts, and other personnel management.294F
295
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.

52
Complainant’s wife discussed Makor as one of the grievances involving
Rodriguez.295F
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.”296F
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.”297F
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.298F
299
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.299F
300
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.300F
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:
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. [301F
302]
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.

53
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. [302F
303]
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. [303F
304]
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 . . . .”304F
305
The suspension meeting was followed by an investigation and termination on
March 31, 2020.305F
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.306F
307 It states:
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.

54
Company’s management that we must go in a different
direction at this time.[307F
308]
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. [308F
309]
308 	Id.
309 	D. & O. at 11; Tr. 46-47.

55
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.”309F
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.310F
311 As the ALJ noted this was “notably . . . unrelated to the Makor
permit.”311F
312 Kelly Gregory reported that Complainant’s disagreement with Coady
regarding decision-making after the ransomware attack almost got him fired.312F
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.313F
314
310 	D. & O. at 11.
311 	Supra note 244.
312 	D. & O. at 11; see also id. at 17 (citing Complainant’s testimony in the ALJ’s same-
action defense analysis).
313 	RX 10 at 9, 17.
314 	D. & O. at 10-11.

56
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.314F
315
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.315F
316 Respondent was working on submitting
documentation to TCEQ through Rodriguez and Source Environmental.316F
317
Coady explained to the Board in March of 2020 that they had hired a new third-
party consultant to obtain the permit.317F
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.318F
319
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.
319 	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).

57
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. [319F
320]
In reversing the ALJ’s decision, the majority emphasizes that Respondent
shifted reasons for terminating Complainant, and this is evidence of pretext.320F
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.321F
322
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.322F
323
320 	D. & O. at 19-20; Resp. Br. at 10-11.
321 	Supra, at 20-24.
322 	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).
323 	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)

58
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.323F
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.324F
325
(“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.”).
324 	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).
325 	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.”).

59
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