Page:Cordúa Restaurants, Inc. v. NLRB (19-60630) (2021) Opinion.pdf/12

 ;B. Cordúa’s knowledge of and animus toward Ramirez’s protected conduct Cordúa also does not dispute, and has thus waived any argument against, the Board’s finding that Ambroa and Espinoza each had knowledge of Ramirez’s protected conduct. Id. In order to round out the Wright Line framework and conclude on review that Ramirez’s firing violated Section 8(a)(1), we must find substantial evidence to support that Cordúa harbored animus toward Ramirez’s protected activities. Remington Lodging, 363 NLRB 112, at *2 & n.5.

Cordúa argues that, as a preliminary matter, the Board “failed to make a finding regarding animus” because the Board “may not rest its entire decision that animus motivated an employee’s discipline on a finding that the employer gave a pretextual reason for its action.” Cordúa relies primarily on Valmont, in which the ALJ based its entire animus finding on its determination that the employer gave a pretextual reason for disciplining employees. Valmont Indus., Inc., 244 F.3d 454, 466 (5th Cir. 2001). Here, the Board expressly incorporated the ALJ’s finding that Cordúa exhibited animus toward Ramirez’s protected conduct through Espinoza’s questioning of Ramirez and the course of Cordúa’s investigation. Although these facts are closely tied to the Board’s separate finding of pretext, they also lend independent support to the Board’s animus finding. Importantly, although relying on the same sets of facts to support the animus and pretext findings, the ALJ did not find animus solely because Cordúa gave a pretextual reason for firing Ramirez. Rather, the ALJ found that the same set of facts demonstrated animus and pretext.

We now turn to the merits of the Board’s animus finding. On review, the Board maintains that substantial evidence supports its finding of animus, pointing to (1) Ambroa’s surveillance and Espinoza’s interrogation of Ramirez, (2) the circumstances of Cordúa’s investigation, and (3) Cordúa’s