Page:Cordúa Restaurants, Inc. v. NLRB (19-60630) (2021) Opinion.pdf/10

 NLRB 1083 (1980), enforced on other grounds, 662 F.2d 899 (1st Cir. 1981)); see also NLRB v. Transp. Mgmt. Corp., 462 U.S. 393, 401–04 (1983) (approving the Wright Line framework), abrogated on other grounds, Dir., Office of Workers’ Comp. Programs v. Greenwich Collieries, 512 U.S. 267 (1994). Under this framework, an employer’s termination of an employee violates Section 8(a)(1) if the employee’s protected conduct was a motivating factor in the decision to discharge the employee. Wright Line, 251 NLRB at 1089. The employee’s protected activity need not be “the sole motivating factor” so long as the activity was “a substantial or motivating factor.” Adams & Assocs., Inc. v. NLRB, 871 F.3d 358, 370 (5th Cir. 2017) (quoting ''Transp. Mgmt. Corp.'', 462 U.S. at 401).

The Board may rely on circumstantial evidence to infer that an employee’s protected activity was a motivating factor in an employer’s decision to fire the employee. ''Elec. Data Sys. Corp. v. NLRB, 985 F.2d 801, 804–05 (5th Cir. 1993); see also Remington Lodging'', 847 F.3d at 184 n.13. In particular, the Board may infer a discriminatory motive where the evidence shows that: (1) the employee engaged in concerted activities protected by Section 7; (2) the employer knew of the employee’s engagement in those activities; and (3) the employer harbored animus toward the employee’s protected activities. Remington Lodging & Hosp., LLC, 363 NLRB 112, at *2 & n.5 (Feb. 12, 2016), enforced, 847 F.3d 180 (5th Cir. 2017).

If the Board finds that an employee’s protected activity was a motivating factor in an employer’s termination decision, the employer may only avoid a finding of Section 8(a)(1) violation by proving, as an affirmative defense, that the employer would have fired the employee even if the employee had not engaged in the protected activities. ''Transp. Mgmt., 462 U.S. at 401–02; NLRB v. Delta Gas, Inc.'', 840 F.2d 309, 313 (5th Cir. 1988).