Portal:United States Court of Appeals for the Fifth Circuit

“ The record indicates that after learning of Ramirez’s involvement in the collective action lawsuit, Ambroa singled out a text conversation between Ramirez and Reichman in which they appeared to be discussing wage-related issues, photographed the exchange, and sent the photographs to Cordúa’s chief operating officer. We have previously found that illicit surveillance of protected conduct “indicates an employer’s opposition to [that conduct] , and the furtive nature of the snooping tends to demonstrate spectacularly the state of the employer’s anxiety.” ”

“ Espinoza’s questioning of Ramirez was not tailored to this purpose, and Espinoza was coercive in pressuring Ramirez to provide access to his personal cellphone and denying Ramirez’s requests to speak to his lawyer. ”

“ An employer’s one-sided or faulty investigation into an employee’s purported misconduct may constitute “significant” evidence of unlawful motive. NLRB v. Esco Elevators, 736 F.2d 295, 299 n.5 (5th Cir. 1984) ; accord Valmont Indus., 244 F.3d at 466–67.
3. Cordúa’s pretextual justifications for Ramirez’s termination Finally, the Board maintains that “it is well established that the Board’s finding of unlawful motive is reinforced where some or all of the employer’s proffered explanations for its actions are found to be pretextual.” ”

“ We affirm. I. Cordúa operates food services businesses in the metropolitan Houston, Texas, area, including nine restaurants with the brand names “Churrascos”; “Américas”; “Amazón Grill”; and “Artista.” Churrascos has five locations, including Churrascos River Oaks and Churrascos Sugar Land. Cordúa employs several hundred servers, kitchen staff, and bartenders at its nine restaurants.
A. The collective action lawsuit against Cordúa Employee Steven Ramirez began working for Cordúa as a server at Churrascos River Oaks in September 2012. ”

“ Romero, general manager of Churrascos Sugar Land, was also present. Espinoza informed Ramirez that Cordúa was investigating “ [a] breach of confidential [] employee records including personal records, some payroll and time records.” Espinoza stated that he had spoken to “various employees” about the investigation. Espinoza then told Ramirez, “Our investigation has revealed that you have worked with other employees that you know had access to employee records. You also were dishonest with me about accessing employee records and about texting [Reichman] .” ”

“ Wal-Mart Stores, Inc., 911 F.2d 1044, 1046 (5th Cir. 1990) (explaining that the adverse witness rule applies where “a party has it peculiarly within his power to produce witnesses whose testimony would elucidate the transaction [at issue] .”) . Cordúa does not explain why Reichman’s personal assessment of whether Cordúa harbored animus would be relevant to the Board’s finding. ”

“ NLRB, 681 F.3d 651, 665 (5th Cir. 2012) ; see also NLRB v. Cal-Maine Farms, Inc., 998 F.2d 1336, 1339–40 (5th Cir. 1993) ; IBEW, AFL-CIO, CLC, Local Unions 605 & 985 v. NLRB, 973 F.3d 451, 457 (5th Cir. 2020) . ”