18-1600-ag
Parkview Lounge, LLC v. NLRB

                               UNITED STATES COURT OF APPEALS
                                  FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 25th day of October, two thousand nineteen.

PRESENT:
                JOHN M. WALKER,
                SUSAN L. CARNEY,
                            Circuit Judges,
                JOHN G. KOELTL,
                            District Judge.*

_________________________________________

PARKVIEW LOUNGE, LLC, DBA ASCENT LOUNGE,

                Petitioner–Cross-Respondent,

                         v.                                             No. 18-1600-ag
                                                                            18-1964-ag

NATIONAL LABOR RELATIONS BOARD,

           Respondent–Cross-Petitioner.
_________________________________________

FOR PETITIONER–CROSS-RESPONDENT:                         ARIADNE PANAGOPOULOU
                                                         (Joseph Nohavicka, on the brief),

*Judge John G. Koeltl, of the United States District Court for the Southern District of New
York, sitting by designation.
                                                            Pardalis & Nohavicka, LLP,
                                                            Astoria, NY.

FOR RESPONDENT–CROSS-PETITIONER:                            MILAKSHMI V. RAJAPAKSE (Julie B.
                                                            Broido, Supervisory Attorney, on
                                                            the brief), National Labor Relations
                                                            Board, Washington, DC.


       On petition for review of the April 28, 2018 decision and order of the National Labor
Relations Board and cross-petition for enforcement.

       UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the petition for review is DENIED and the
petition for enforcement is GRANTED.

       Parkview Lounge, LLC, dba Ascent Lounge (“Parkview”) petitions for review and the
National Labor Relations Board (“NLRB” or “Board”) cross-petitions for enforcement of
the NLRB’s April 26, 2018 decision and order. The decision adjudicated the grievance of
Parkview employee Susann Davis (“Davis”), who accused Parkview of discharging her for
participating in protected concerted activity, in violation of Section 8(a)(1) of the National
Labor Relations Act (“NLRA” or “Act”).1 See 29 U.S.C. § 158(a)(1). We assume the parties’
familiarity with the underlying facts and the procedural history of this case, to which we refer
only as necessary to explain our decision to deny the petition for review and grant
enforcement.

       In its petition, Parkview focuses on three arguments. First, Parkview contends that
the Board erred in concluding that its owner, Brian Packin (“Packin”), knew of Davis’s
engagement in protected concerted activity when she was terminated. Second, Parkview


1Section 8(a)(1) provides in relevant part: “It shall be an unfair labor practice for any
employer . . . (1) to interfere with, restrain, or coerce employees in the exercise of the rights
guaranteed in section 157 of this title.” 29 U.S.C. § 158(a)(1). Section 157 provides that
employees have “the right to self-organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining or other mutual aid or
protection.” 29 U.S.C. § 157.

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challenges the Board’s adoption of the Administrative Law Judge’s (“ALJ”) finding that
Parkview was at least partially motivated by retaliatory animus in discharging Davis. Third,
Parkview argues that the Board should not have imposed remedies of reinstatement and
backpay because (it alleges) Davis was terminated for cause. See 29 U.S.C. § 160(c). We
address each argument in turn. We will enforce the NLRB’s order “if its legal conclusions
have a reasonable basis in law” and its factual findings are “supported by substantial
evidence.” NLRB. v. Special Touch Home Care Servs., Inc., 708 F.3d 447, 453 (2d Cir. 2013)
(internal quotation marks omitted).

       1. Packin’s Knowledge

       On January 29, 2016, Packin discharged Davis from her position as a server at
Parkview. Parkview contends that the ALJ erred in finding that, in doing so, Packin was
motivated at least in part by Davis’s concerted activity at a January 27 meeting because,
Parkview urges, the General Counsel did not show that Packin knew of that activity when he
ended Davis’s employment.

       Although the Board “may not base its decision on mere conjecture, the element of
knowledge may be shown by circumstantial evidence from which a reasonable inference may
be drawn.” Abbey’s Transp. Servs., Inc. v. NLRB., 837 F.2d 575, 579 (2d Cir. 1988); see also
NLRB. v. Columbia Univ., 541 F.2d 922, 929 (2d Cir. 1976) (holding that “direct evidence of
employer knowledge of union or concerted activity is not a prerequisite to a finding that
such knowledge existed.”). Here, according to Davis’s testimony, Ray Quiñones, a Parkview
manager who was present at the January 27 meeting, gave a direct response to the staff and
assured employees that he would relay to Packin the workplace concerns that Davis raised
there. Geoffrey Daley, another manager present at the January 27 meeting, testified that he
informed Packin about Davis’s comments at the January 27 meeting before she was
terminated. This evidence, taken within the context of the record as a whole, adequately
supports the Board’s conclusion that Packin knew of Davis’s protected concerted activity
when he discharged her.




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       2. Retaliatory Animus

       Substantial evidence also supports the Board’s conclusion that Packin was motivated
at least in part by retaliatory animus when he discharged Davis. First, the Board properly
considered as persuasive evidence of unlawful motivation the timing of Davis’s discharge,
which took place a mere two days after the January 27 meeting. Although Parkview contends
that the Board afforded the timing undue weight, the Board was entitled to treat the brief
two-day interval as probative of retaliatory animus. NLRB v. Am. Geri–Care, Inc., 697 F.2d
56, 60 (2d Cir. 1982) (“An inference of anti-union animus is proper when the timing of the
employer’s actions is ‘stunningly obvious.’”); NLRB v. Advanced Business Forms Corp., 474 F.2d
457, 465 (2d Cir. 1973) (“The abruptness of a discharge and its timing are persuasive
evidence as to motivation.”(internal quotation marks and citation omitted)).

       Second, while the evidence in this regard is not overwhelming, substantial evidence
also supports the Board’s conclusion that the reason Parkview proffers on appeal as
underlying Davis’s termination—her inability to work with management—was pretextual.
The record demonstrates that, in different contexts, Parkview gave inconsistent reasons for
Davis’s termination and that Davis had been praised for her work not long before she was
shown to the door. Davis testified, and Parkview did not challenge the assertion, that Packin
told her she was being terminated because she did not “get[] along with management.”App’x
46. In its official report to the New York State Department of Labor, Parkview gave “issues
with service,” in addition to management issues, as a reason for Davis’s termination. App’x
467. Moreover, these stated reasons were at odds with the compliments Packin and another
manager had given Davis just one week before her discharge: that she “was one of the
stronger servers.” App’x 35. The presence in this record of such inconsistent justifications
and assessments justifies the Board’s determination that the employer’s explanation for
discharge was pretextual. See NLRB v. Aeronautical Indus. Dist. Lodge No. 91, 934 F.2d 1288,
1294 (2d Cir. 1991) (stating that employer’s inconsistent explanations were evidence
of pretext). Although the record contains evidence that could also have supported a different
conclusion, the substantial evidence standard is not a demanding one. See NLRB v. Katz’s
Delicatessen of Houston St., Inc., 80 F.3d 755, 763 (2d Cir. 1996). We conclude that it is satisfied


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by the Board’s conclusion that Davis’s protected activity on January 27 was a “motivating
factor” in Parkview’s decision to terminate her. See e.g., NLRB v. Walton Mfg. Co., 369 U.S.
404, 405 (1962) (“[W]hile the ‘reviewing court is not barred from setting aside a Board
decision when it cannot conscientiously find that the evidence supporting that decision is
substantial, when viewed in the light that the record in its entirety furnishes, including the
body of evidence opposed to the Board’s view,’ it may not ‘displace the Board’s choice
between two fairly conflicting views, even though the court would justifiably have made a
different choice had the matter been before it de novo.’”).

       3. Remedial Scheme

       Finally, Parkview urges us to conclude that, even if the Board’s unlawful termination
finding is adequately supported by the record, its requirement that Parkview reinstate Davis
and its award of back pay are not consistent with the remedial limitations recognized by
section 10(c) of the Act. Section 10(c) provides in relevant part that “[n]o order of the Board
shall require reinstatement of any individual as an employee who had been suspended or
discharged, or the payment of any back pay, if such individual was suspended or discharged
for cause.” 29 U.S.C. § 160(c) (emphasis supplied). Parkview asserts that Davis was terminated
for cause and that this conclusion precludes the Board from imposing reinstatement and
backpay remedies.

       In light of our conclusion that substantial evidence supports the Board’s conclusion
that Parkview’s proffered justifications for Davis’s discharge were pretextual, however, the
Board’s reinstatement order was presumptively lawful. See, e.g., G & T Terminal Packaging Co.
v. NLRB, 459 F. App’x 19, 21 (2d Cir. 2012) (noting that “an award of reinstatement with
backpay is the normal remedy awarded to victims of discrimination.” (internal citation and
quotation marks omitted)). The record does contain evidence that Davis had conflicts with
management and that her performance had been subject to criticism on more than one
occasion. But Parkview cites no authority for the proposition that, when the record contains
evidence of an employee’s concurrent performance issues or conflicts with management, the
Board may not order backpay and reinstatement after determining that an employer engaged
in unlawful retaliatory acts with regard to that employee, and we are aware of none.

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       The Act vests the Board with “broad discretionary powers to fashion remedies for
violations of the Act.” NLRB v. Ferguson Elec. Co., 242 F.3d 426, 431 (2d Cir. 2001); see also 29
U.S.C. § 160(c). Because substantial evidence supports the Board’s determination that
Davis’s termination was a result of retaliatory animus, we conclude that the Board did not
abuse its discretion in issuing the challenged remedial order.

                                                    * * *

       We have considered Petitioner’s remaining arguments and conclude that they are
without merit. Accordingly, the petition for review is DENIED, and the cross-petition for
enforcement is GRANTED.



                                                      FOR THE COURT:

                                                      Catherine O’Hagan Wolfe, Clerk of Court




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