At Fifth Circuit, Trader Joe's defends firing worker who complained about insufficient Covid-19 policies

(CN) — Grocery chain Trader Joe’s told a Fifth Circuit Court of Appeals panel Monday that it was justified in firing an employee who raised concerns about what she felt were inadequate Covid-19 safety policies at her store, arguing the National Labor Relations Board should not have found the worker’s termination was retaliatory.

Jill Groeschel had worked at a Trader Joe’s in Houston, Texas, for eight years when in February 2022 she filed her first complaint with the NLRB.

She claimed she was given a written warning about inappropriate behavior and a negative performance review in retaliation for complaining about insufficient health and safety measures, such as the removal of plexiglass dividers at the registers and that employees were sometimes not given a health assessment until after they had started working.

A month after she filed her complaint, Groeschel was put on paid administrative leave, causing her to file a second NLRB charge. She was subsequently fired from the company. The NLRB found that Trader Joe’s unlawfully disciplined and fired Groeschel in retaliation for her complaining about Covid-19 policies and filing charges with the board, and it ordered Trader Joe’s to rehire Groeschel.

But Arrissa Meyer, representing Trader Joe’s in its appeal of the board’s ruling, told the three-judge panel that Groeschel was actually fired because of a “deluge” of complaints from coworkers that the company received following Groeschel’s initial NLRB complaint, accusing Groeschel of bullying other employees and operating equipment in an unsafe manner.

“It is ridiculous to think that an employer would be prevented from acting on multiple employee complaints of serious misconduct because the subject of those complaints had recently filed an NLRB charge,” Meyer said.

In response, NLRB attorney Jared Odessky pointed to the board’s finding that the employees who complained about Groeschel were motivated to do so by the NLRB charge, which they reportedly viewed as an attack on their supervisor.

Many of the complaining coworkers expressly indicated that was the reason for their complaints, he said, and the board reasonably found the others had a similar motivation because their complaints occurred soon after Groeschel filed her NLRB charge.

Odessky said the board found that the regional vice president for Trader Joe’s then “seized” on these complaints as a pretext for retaliating against Groeschel for her protected activity.

U.S. Circuit Judge Andrew Oldham questioned the board’s finding that the fact that Trader Joe’s suspended Groeschel a month after she filed her initial charge was evidence of animus.

“How long after Trader Joe’s gets information from its employees that another employee is bullying and belittling crew members to the point of bringing them to tears, came close to running down a crew member with a pallet jack and almost hit a crew member with a stack of product on a two-wheeler does the company have to wait to take disciplinary action against that employee without running afoul of your board?” Oldham, a Donald Trump appointee, asked Odessky.

Odessky responded that the board’s finding of animus was not just based on the timing of the suspension and that Trader Joe’s failed to conduct a proper investigation into the coworkers’ claims.

Senior U.S. Circuit Judge James Dennis, a Bill Clinton appointee, and U.S. Circuit Judge Dana Douglas, a Joe Biden appointee, joined Oldham on the panel.

Trader Joe’s is currently facing a number of other complaints about its labor practices, primarily surrounding accusations that the company retaliated against employees amid a push for unionization. The grocery chain is one of several major companies that have challenged the constitutionality of the NLRB: in another proceeding, an attorney for Trader Joe’s told an NLRB administrative law judge the company would argue as an affirmative defense that the NLRB and its administrative law judges are unconstitutional.