IXL Learning, Inc.

National Labor Relations Board - Administrative Judge Opinions

Apr 28, 2016

20-CA-153625 (N.L.R.B. Apr. 28, 2016)

JD(SF)-21-16
San Mateo, CA

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
SAN FRANCISCO DIVISION OF JUDGES

IXL LEARNING, INC.

and Case 20-CA-153625

ADRIAN SCOTT DUANE, an Individual

Cecily Vix, Esq.,
for the General Counsel.
Jeffrey D. Wilson Esq.
(Young Basile Hanlon & MacFarlane, P.C.),
for the Respondent.
David Marek, Esq.(Liddle & Robinson),
for the Charging Party.

DECISION

STATEMENT OF THE CASE

GERALD M. ETCHINGHAM, Administrative Law Judge. This case was tried in San
Francisco, California, on November 5, 2015. Adrian Scott Duane, an individual (the Charging
Party or Duane), filed the charge in Case 20-CA-153625 on June 3, 2015. The General Counsel
issued the complaint on July 29, 2015, and amended it on October 16 and 22, 2015 (complaint),
and the Respondent IXL Learning, Inc. (Respondent or Employer) answered the original
complaint on August 12 and the amended complaint on October 27, 2015, generally denying the
critical allegations of the complaint.
The complaint alleges the Respondent also violated Section 8(a)(1) of the National Labor
Relations Act (Act) by terminating Duane’s employment because he engaged in protected
concerted activities citing concerns of workplace discrimination in a posting on Glassdoor.com.
The complaint further alleges the Respondent violated Section 8(a)(1) of the Act by maintaining
an overly broad rule requiring employees to register their complaints about their working
conditions with their supervisor before complaining to third parties. Finally, at hearing, the
complaint was amended to add one further allegation that Respondent violated the Act under
Section 8(a)(1) by discharging Duane to prevent future protected concerted activity.

JD(SF)-21-16

On the entire record,1 including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and the Respondent, I make the
following
Findings of Fact 5
I. Jurisdiction
The Respondent, a corporation with an office and place of business in San Mateo,
California, has been engaged in the creation and sale of online educational software services and
related products since 1998. The Respondent admits, and I find, that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the Act. (G C Exh. 1(f) and 1(n).) 2 10
II. Statement of Facts
A. The Respondent’s Background and Operations
Respondent is an educational technology company that provides online services in math
and English for K-12 students to use to help develop and practice math and English skills. The
company was founded in 1998 by its current Chief Executive Officer Paul Mishkin (Mishkin) 15
and it is located in San Mateo, California, near the Silicon Valley where a number of other
technology companies are located. (Tr. 241.) Respondent employs approximately 200
employees, the large majority who work at the San Mateo facility but some who are privileged to
work remotely part or full time. (Tr. 200.)
Respondent maintains its own website that K–12 students can use. Respondent’s product 20
includes a math practice site where students enter Respondent’s website and take practice math
tests and Respondent records each student’s answers and records all of the data and responses so
that teachers and parents can see how well the students are doing. (Tr. 200 and 207.)
Respondent’s engineer and product analyst employees write code and a program that generates
each of the practice exam questions or problems and the engineer needs a list of specifications 25
from Respondent’s management and the documents referred to as “specs” are written by
1 The transcript in this case is generally accurate, but I correct the transcript (Tr.) as follows: Tr. 36; l. 6, “Nina”
should be “Nemo”; Tr. 53; l. 6, “unpermitted” should be “unlimited”; Tr. 61, l. 7, “as” should be “at”; Tr. 86; l. 13,
“this gender” should be “cisgender”; Tr. 93; l. 22, “log” should be “long”; Tr. 97; l. 21, “mind” should be “mine”;
Tr. 98; l. 8, “her supervisees has” should be “her employees that she supervises has”; Tr. 105, l. 20, “I” should be
“in”; Tr. 106; l. 12, “ours” should be “hours”; Tr. 124; l. 13, “Meyers Two” should be “Meyers II”; Tr. 155; l. 21,
“replying” should be relying”; Tr. 198; l. 15, “parxial” should be “Parexel International”; Tr. 210; l. 19, “That’s”
should be “What’s”; Tr. 232; l. 12, “the productivity” should be “being less productive”;Tr. 245; l. 14, “than” should
be “that”; Tr. 247; ll. 11-12, “extremely in” should be “extremely important in”; Tr.251; l. 17, “at that” should be
“to”; Tr. 255; l. 4, “fall” should be “all”; Tr. 279; l. 2, “easy on challenging work” should be “easy, unchallenging
work”.
2 Abbreviations used in this decision are as follows: “R. Exh.” for Respondent’s exhibit; “GC Exh.” for General
Counsel’s exhibit; “Jt. Exh.” for joint exhibit; “GC Br.” for the General Counsel’s brief and “R. Br.” for the
Respondents’ brief. Although I have included several citations to the record to highlight particular testimony or
exhibits, I emphasize that my findings and conclusions are based not solely on the evidence specifically cited, but
rather are based on my review and consideration of the entire record. Charging Party counsel, while participating at
hearing, did not submit a post-hearing brief.
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JD(SF)-21-16
Respondent’s product analyst employees who basically say what each problem is going to be
about, what the text in that problem is, how students answer it such as via multiple choice or
written answer, etc. (Tr. 206-208.) The code is tested so that by the time of its release to the
public by Respondent, the code has been tested and works smoothly without any problems. (Tr.
207.) 5
As part of its benefits package, Respondent offers its employees unlimited paid sick leave
in 2014 and employees were only required to tell their manager they wanted to take a sick day
and employees must bring in a doctor’s note to explain missed sick days in excess of 3. (Tr.
206.)
B. Glassdoor.com Jobs and Recruiting Services 10
Since 2013, Respondent subscribes to a jobs and recruiting service from Glassdoor.com
primarily for recruitment purposes and the site allows Respondent to recruit highly educated
candidates and gives Respondent enhanced services on Glassdoor’s website and allows it to put
more essential information on the recruitment website. (Tr. 241, 261; Jt. Exh. 1; R. Exh. 9.)
Mishkin opined that Glassdoor’s main purpose is to help Respondent recruit qualified employees 15
in the competitive technology environment that exists in Silicon Valley. (Tr. 262-263.)
Respondent pays extra for an enhanced page on Glassdoor.com that says more about the
company, what it is like working at Respondent and shows a video about Respondent and its
products. (Tr. 280.) Current and former employees can post anonymous reviews about
companies on Glassdoor.com. 20
Glassdoor’s mission is to “help people find the jobs they love and help companies attract
top talent.” (R. Exh. 9 at 1.) The Glassdoor Essentials Package is touted by Glassdoor to allow
Respondent to “Attract Top Talent With Bundled Job Advertising and Employer Branding.” (Jt.
Exh. 1; R. Exh. 9.) Respondent advertises open positions to prospective new employee
candidates using Glassdoor and candidates also use Glassdoor to submit job applications and 25
resumes in response to open positions at various companies including Respondent. One feature
that Glassdoor offers to protect member anonymity is described by Glassdoor as:
All contributions submitted to Glassdoor are anonymous to other community members,
including employers. Glassdoor does not display your email address, Facebook profile, or
any other personal information. All members of our community have the ability to submit 30
a contribution without providing additional information that would allow others to
identify you:
• When submitting a company review, interview review, or benefit review to
Glassdoor it is optional to provide your location and title.
• You may also submit a salary review to Glassdoor without providing your 35
employer name.
Glassdoor will never post to your Facebook wall without your permission. We will never
display your Facebook profile next to any of your submissions….
(R. Exh. 9 at 3.) Thus, there is no ability to comment on a Glassdoor posting the same as one can
do on Facebook or Twitter and the nature of Glassdoor.com is not a social media site but rather it 40
is a recruitment tool utilized by Respondent to recruit prospective employees and advertise itself
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similar to what Yelp does for restaurants. (Tr. 116-117.) A reviewer of a Glassdoor posting can
only post anonymously if the posting is helpful. There is no ability to affix a name to a Glassdoor
posting saying whether one agrees or disagrees with the post and employees do not communicate
with each other through public or private messages. Id.
C. The Charging Party’s Work and Employment at Respondent in First Year 5
Duane began working at Respondent in July 2013 as a math team product analyst. Duane
has his Ph.D. in mathematics and he opined that Respondent demands that its employees either
have their masters or PhD. in math or English. (Tr. 25-26.)
Duane explained that his work for Respondent involved designing skills that Respondent
could incorporate into its website products for students. Duane wrote specifications for those 10
skills, he aligned those skills to the common core curriculum and he designed the Ipad
application keyboard and he also reviewed skills and tested the resulting generators for the
website. (Tr. 26, 208.)
Duane’s math team had 2 managers, David Keyes (Keyes) being one of the two and
Duane’s direct supervisor/manager for the majority of Duane’s employment at Respondent. (Tr. 15
28.) Keyes was the direct supervisor of Duane and 5 other employees in his role as program
manager for math content at Respondent from January 2014 through early January 2015. (Tr.
200-01.) In 20143 and 2015, Keyes direct manager was Kate Mattison (Mattison), the director of
products, and Mattison reported to Joe Kent, the director of engineering, and Kent reported to
CEO Mishkin. (Tr. 201-202.) 20
Mishkin described Respondent’s employees’ ability to work remotely as a privilege
subject to the discretion of Respondent’s individual managers. (Tr. 202-203, 259.) Keyes
described remote work basically broken down into 2 types: (1) that which is requested
sporadically on a 1-day basis when employees have a sick child at home, a repair person
appointment or appliance delivery scheduled, or an extended vacation by a day or two; and (2) a 25
set regular remote work schedule on a part time or full time basis with remote work occurring
daily or weekly at a set percentage of time preapproved by management. (Tr. 88-90, 226-228;
GC Exh. 4 at 1-2.) Keyes opined that almost all Respondent’s employees received approval for
the sporadic type remote work but that the regular fixed schedule remote work was much less
frequent and required a set plan for those who did not have productivity issues. (Tr. 222-224.) 30
Duane admits that for his 25-30 days that he worked partially at home from January--October,
2014, there were no restrictions or reporting requirements tied to this remote work arrangement.
Keyes described one employee’s, Mathew Bleeker’s, remote schedule as being 100
percent at home. Bleeker turned down Respondent’s first job offer because he could not move
from Louisiana due to his wife’s illness so Respondent revised its offer to Bleeker of 100 percent 35
work at home which was later accepted in November or December 2014 by Bleeker before he
started after Duane’s employment at Respondent ended. Id. Another employee, Gina Bland, was
allowed by Respondent to remotely work a 50/50 plan after her first 3 months in the office and
she did well and works 100 percent at home as of November 2015. (Tr. 224.)
3 All dates in 2014 unless otherwise indicated.
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JD(SF)-21-16
Duane further opined that he can perform all of his job functions remotely because all of
his communications were done online via g-chat or email. (Tr. 46-47.) Keyes agreed that most of
the job duties of a math product analyst can be done remotely with the only issue being the
testing of all of the devices. (Tr. 203.)
Duane described his work at Respondent as being 80-90 percent individual and 10-20 5
percent collaborative. (Tr. 29.) Duane estimated that on his math team of 15 employees,
approximately 5 of 15 or 33 percent were allowed to occasionally work remotely. (Tr. 25.) Non-
management employees at Respondent, like Duane, work in cubicles at the San Mateo office
while managers have their own private offices. (Tr. 27.) Duane estimates that the nearest
manager office to his cubicle was approximately 15 feet away and 30-40 feet away from the next 10
closest manager at Respondent. (Tr. 28, 203.) Karen Penner (Penner), Respondent’s recruitment
manager, occupied the office closest to where Duane worked while at Respondent. Id.
When he started at Respondent in July 2013, Duane reported to Mattison as his direct
supervisor until she was promoted to director of products sometime after August 2013. Keyes
was Duane’s next direct supervisor who worked with Duane in this capacity until Duane’s last 15
day at work on January 8, 2015. (Tr. 26-27.) Keyes assigned Duane what skills he was to design
and Keyes reviewed the specifications that Duane wrote for those skills. (Tr. 27.)
Duane had weekly one-on-one meetings with Keyes to check in on the kind of progress
Duane was making on his work. (Tr. 107.) At least once or twice Keyes requested Duane to
improve his accuracy and thoroughness of the work product that he was creating. Id. 20
Duane had a conversation with Mattison in August 2013 where he informed her about his
disability advocate work with the Fair Education Act. (Tr. 66.) Duane also mentioned to
Mattison that he had heard that Respondent planned to expand its product to create social studies
skills and Duane told Mattison that he would like to work on such a new project if it came up.
(Tr. 66-67.) 25
Employees at Respondent were allowed to work different hours with some working a
6-7 a.m. to 2-3 p.m. shift while others came in at 10-11 a.m. and worked until 7 or 8 p.m.
(Tr. 28.) Employees are expected to work between 8-9 hours days with breaks and lunch with the
option of staying or leaving the facility at lunch. Id. Employees were freely able to communicate
to co-workers about work and personal matters during work hours and did so usually directly, via 30
email, or g-chat instant messaging or texting. (Tr. 29; GC Exhs. 5 and 8.)
Duane received performance reviews on September 12 and November 12, 2013, which
provided that Duane’s work performance required improvement in areas such as organization,
time management, promptness, and resourcefulness to increase productivity. (R. Exh. 2 at 2.)
D. The Charging Party’s Isolated Alleged Protected, Concerted Activities Mostly 35
Outside the Presence of Management
From time to time in the approximate 17 months that Duane worked at Respondent, he
and one or two of his coworkers would discuss work concerns about Respondent most times
during lunch outside the direct presence of management. This laundry list of isolated discussions
touched upon concerns mostly at the start of Duane’s employment about Respondent’s unlimited 40
sick leave policy, the common complaint of there being a lack of diversity at Respondent and in
5

JD(SF)-21-16
the tech industry generally, the lack of supportive creativity in developing Respondent’s product,
and alleged micro-management of employees by Respondent’s CEO Mishkin. Specifically,
these isolated discussions are as follows:
1. Duane’s Discussions in August 2013.
5
a. New Skill –

In August 2013, Duane and Keyes spoke when Keyes was still a product analyst like
Duane and not yet a supervisor. Duane told Keyes that he had an idea for a new skill on
Respondent’s website in which students would learn how to make fractals by actually creating 10
fractals. This conversation took place near their cubicles with Keyes, and two other product
analyst employees. Keyes responded to Duane saying that he did not think that Respondent’s
CEO Mishkin would approve the new skill because it was too outside the norm that Respondent
created and too different from the skills that were on the website at the time. (Tr. 38-39.)
15
b. Lack of Diversity –

Also during August 2013, Duane and co-worker Nemo Curiel (Curiel) had a conversation
around lunchtime at Duane’s cubicle and Curiel told Duane that he had noticed that there were
only 2 Latino employees at Respondent including himself and only 2 or 3 African American 20
employees. Duane responded to Curiel that Duane had noticed the same thing but Duane was not
surprised by this because it is the tech industry and the tech industry workforce is not very
diverse. (Tr. 33.) No manager was directly present. (Tr. 113.)

c. Respondent’s Sick Leave Policy – 25

Again in August 2013, at the start of Duane’s employment at Respondent, he and Curiel
had another conversation at Duane’s cubicle outside the direct presence of any Respondent
supervisor or manager around lunchtime. (Tr. 113.) This conversation started with Duane
commenting to Curiel that he was nervous because he had inconclusive blood test results and 30
upon hearing this Curiel suggested to Duane that he take a sick day because Duane was nervous
about this. Duane responded to Curiel by saying that Duane did not want to take a sick day and
be perceived as being lazy and not putting enough time into his work at Respondent. (Tr. 29-30.)

2. Curiel’s Sick Leave Conversation with Duane in January 2014 35
In January 2014, Duane had another conversation with Curiel regarding Respondent’s
sick leave policy. The conversation involved just the two co-workers outside their cubicles at
lunchtime outside the direct presence of any supervisor or manager. Curiel told Duane that he
had been called into the HR manager’s office because he was using too many sick days. Duane
responded by saying that if Respondent’s policy is to allow unlimited sick day use then Curiel 40
was within his rights to do that. Curiel responded to Duane by saying that he agreed with Duane
but that Curiel would probably take fewer sick days. (Tr. 31-32.) No manager was directly
present. (Tr. 113.)
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JD(SF)-21-16
3. Duane’s Canceled Video Project Discussions with Curiel, Wu, and Morse in February and
April 2014
In February 2014, Curiel, Duane and another product analyst co-worker, Jessica Morse
(Morse), went to lunch at a restaurant off-site. At this time, Curiel and Morse told Duane that the
video project they had been working on had been canceled. It was a video project to create short 5
videos for 2nd and 3rd graders to learn math. Morse told Duane that she had moved from faraway
to take this job at Respondent specifically to work on the video project. Morse told them that she
was frustrated that it had been canceled and that she had wasted 3 months of work. Duane
responded and said that he echoed her frustrations and that he would also be frustrated if it had
happened to him. Curiel and Morse told Duane that they thought Mishkin and Mattison canceled 10
the video project because Morse’s direct supervisor had come up with the video idea in the first
place. (Tr. 34-35.) No manager was directly present. (Tr. 113.)
Also in March or April 2014, math product analyst Nina Wu (Wu) and Duane were near
cubicles when Wu told Duane that she had just started at Respondent and that, like Curiel and
Morse above, she also had come to work on the video project that had been recently canceled. 15
(Tr. 35-36, 169-170, 172-174.) Wu told Duane that the project had been canceled before she
arrived at Respondent to start her job and that Respondent had not informed her before she
arrived on her first day of work that the video project had been canceled. Id. Wu asked Duane if
he had any knowledge about the project cancellation as to who canceled it and why it was
canceled. Id. Duane responded that based on what he had heard from Curiel and Morse earlier, 20
they believed that CEO Mishkin was responsible for cancelling the video project. (Tr. 36, 236.)
Duane also told Wu that it seemed to him that Respondent did not really want to push the
boundaries on creativity and that Respondent just wanted to keep its product quality the same as
they had been done in the past and was not open to trying new things. Id. No manager was
directly present. (Tr. 113.) 25
4. Duane’s Expected Disability Leave Conversation with Wu in May 2014
In May 2014, Duane and Wu had a conversation at a cubicle outside the direct presence
of management or outside of Respondent where Duane confided to Wu that he was getting ready
to tell his supervisor Keyes that Duane planned to take 2 months off to have gender confirmation
surgery. (Tr. 40-41, 175-176.) Duane also told Wu that he felt nervous about this because Duane 30
did not plan to disclose that the surgery was related to his gender transition and Duane was
worried that if Keyes later found out that Duane was a transgender that Keyes might not think
that the surgery was medically necessary and that Keyes might even feel lied to because Duane
had not disclosed that it was for Duane’s gender transition. Id. Wu responded by saying that she
thought Keyes would react nicely. (Tr. 41.) No manager was directly present. (Tr. 113.) 35
5. Duane’s August 2013, September 2013, February 2014, and July 2014 Glassdoor
Discussions with Curiel and/or Respondent’s Management
In August 2013, Duane and Curiel discussed Glassdoor postings with manager Penner
who told them that Glassdoor had received several negative reviews in the last few months and
Respondent believed that they came from one former employee in the sales department. (Tr. 54.) 40
Penner asked Duane and Curiel if they were willing to post positive reviews about Respondent
7

JD(SF)-21-16
on Glassdoor. Id. Duane responded to Penner that he would probably be willing to post a review
and Curiel told Penner he would think about it. Id.
Duane posted a positive review on Glassdoor in September 2013 about Respondent
saying that so far he had had a good experience working at Respondent. (Tr. 54-55.) Duane and
Curiel spoke more about postings on Glassdoor in September 2013 and Curiel told Duane that he 5
had reviewed the negative reviews that Penner had mentioned in August but that Curiel had not
noticed the same negative behavior mentioned in the negative reviews but Curiel told Duane that
he was going to keep an eye out as these negative postings were definitely red flags to him. (Tr.
55.) Duane responded that this was reasonable to do but that he had not witnessed anything but
good experiences but maybe people in other departments at Respondent experienced negative 10
things. Id. No manager was directly present. (Tr. 113.)
On February 24, 2014, Prado emailed employees including Wu about Glassdoor reviews
asking the employees to post comments about their work experience at Respondent so to help
“paint a picture of what it’s like to work at IXL – which will help us find the best talent ….”
(Tr. 178-180; GC Exh. 12.) Wu did not post anything on Glassdoor in response to Prado’s email. 15
(Tr. 185-186.) Wu described Glassdoor as being like Yelp but for employers and its primary use
is for job seekers. (Tr. 186-187.)
In July 2014, Duane received another email from Prado about Glassdoor and the email
encouraged employees to write positive reviews on Glassdoor. (Tr. 57.) At this same time
Mishkin was inquiring into the process with Penner and Glassdoor whether there was any way 20
that a negative review could be taken down from Glassdoor website. (Tr. 270; GC Exh. 14.)
6. Duane’s January 2015 Conversation with Milin Re: New Skill for Kindergartners
In early January 2015, co-employee and senior product analyst Isadora Milin4 (Milin)
met with Duane and she showed him a new skill she was designing for kindergartners. (Tr.
39-40, 113, 204-205.) The new skill involved math and Milin told Duane that she thought the 25
new skill would not be approved because it was beyond or different than Respondent’s
traditional skills. Id. Duane responded and told Milin that the new skill was a really good idea
and that the Respondent should approve it for design and that it would be silly if Respondent did
not pick it up and design it. Id. No manager was directly present. (Tr. 113.)
E. The Charging Party’s Part-Time Work-At-Home Privilege in 2014 30
By July 2014, Wu was no longer employed at Respondent and Curiel left employment at
Respondent by August 2014. (Tr. 36-37, 129, 167.)
In July or August 2014, Duane approached Keyes and advised him that he was going to
need an extended medical disability leave absence because he was having surgery and would
need approximately 2 months off later in the year. (Tr. 205.) Respondent had an unlimited paid 35
sick leave policy, the terms of which provide that when an employee wants to take a sick day,
they tell their manager that they want to take a sick day and they get a paid day off. (Tr. 296.)
4 While Milin was formerly a supervisor at Respondent, by January 2015, she was no longer a supervisor or member
of Respondent’s management.
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JD(SF)-21-16
Their sick days are unlimited, and there are no criteria for what constitutes “sick” under the
policy. Id.
Keyes approved Duane’s plan for 2 months disability leave. Id. Duane never told Keyes
that he was either a cisgender or a transgender. (Tr. 86.) Also at no time did Keyes ask Duane
what his specific medical procedures were that were related to his disability leave in 2014. 5
(Tr. 87.)
As part of his gender confirmation surgery plan, Duane sought pre-approval and
Respondent and Duane entered into a regular remote work agreement to allow Duane to work
from home one day per week so he could undergo electrolysis for 2 hours once a week. (Tr. 41.)
As part of the pre-operation plan, Duane worked a half day or 4 hours one day per week at home 10
and used sick leave for the other half day or 4 hours when undergoing the pre-surgery procedure
one day per week. Keyes, however, opined that rather than just one day per week during this
time period, Duane was allowed and actually worked 2 non-consecutive days a week--Tuesdays
and Thursdays from home under the agreed remote work plan of 4 hours remote work at home
and 4 hours sick leave for the 25-30 days that Duane attended pre-op electrolysis. (Tr. 208.) 15
Since there are 17 weeks from July through October, I find that an average on both Keyes’ and
Duane’s estimates equates to the admitted 25-30 days of partial sick leave use by Duane. (Tr. 88-
90.)
Duane worked his usual schedule at Respondent the remaining 4 days per week for the
months of July through October when this regular remote privilege agreement was in effect. (Tr. 20
46.) Keyes approved this regular remote privilege plan for Duane.
On October 3, Duane sent an email styled “Gone for Nov & Dec” to his coworkers at
Respondent with a copy to Prada and Keyes announcing that he was having “major surgery” that
would put him out of work from November 1 through December 30 and that they should send
any questions related to work items for their team in advance so that he can respond by the last 25
week of October. The email further referred to Duane’s desire to keep the details of his gender
transition surgery private and provided that while Duane was aware that some co-workers might
be concerned or curious about his surgery, “this is a matter I’m only discussing in detail with
close friends and family … [s]o I’d prefer not to field questions from coworkers about it … [and
t]hanks in advance for respecting that.” (Tr. 41, 43; GC Exh. 3.) 30
During the 4-month period that Duane worked from home 4 hours per day, Keyes noted
that Duane’s productivity was down for these months compared to when Duane had been
working in the office before July. (Tr. 211-212; GC Ex. 4 at 1-2.) Keyes talked to Duane about
his decreased productivity during this time period and Duane explained that he was so tired from
the pre-operation appointments that Duane could not manage to work afterwards during the last 35
half of the day. (Tr. 211.) As a result, sometime during this pre-op period, Keyes and Duane
came up with a revised regular remote work plan where Duane would take half sick days on the
Tuesdays and/or Thursdays he had appointments so that he could focus on his appointments and
work in the morning for a half day prior to the appointments. (Tr. 212.) Duane admits that during
this time period when he worked remotely due to his pre-op electrolysis procedures, he had 40
productivity issues causing him to be less productive with his work assignments as noted by
Keyes. (Tr. 94.)
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As part of his gender confirmation surgery plan, Duane took disability leave for two
months - the entire months of November and December 2014--before returning to work on
December 30 after surgery. (Tr. 50.) Duane communicated with Keyes while on disability leave.
(Tr. 43.)
Duane estimates that from July through October 2014, he was allowed to work at home 5
25-30 total days for medical or health reasons without restrictions and he was satisfied with
Respondent’s accommodation for his short-term disability at all times up until the time he sought
a new and different regular remote work agreement from Respondent in late December 2014.
(Tr. 87-90.) Also prior to December 22, 2014, Duane admits that Keyes was very flexible with
Duane’s need for working remote or taking time off because of sporadic medical issues. (Tr. 10
87-88, 96.) Until late December 2014, Duane further admits that he did not have any issue,
concerns, or complaints with his use of sick leave or Respondent accommodating Duane’s need
to work remotely. (Tr. 95.) During his employment at Respondent, Duane was approved for
every single instance when he requested a remote work day or any time off, including partial
days, leaving work early or coming in late. (Tr. 95-96.) 15
F. The Charging Party’s Return to Work at Respondent in December 2014 and
Continued Part-Time Work-At Home Privilege
In mid-December 2014, Duane started to look for a new job with a different employer
than Respondent. (Tr. 134.)
Prior to returning to work on December 30, Duane corresponded to Keyes via email after 20
they both attended Respondent’s Christmas party.
On Friday, December 19, Duane emailed Keyes and updated Keyes on Duane’s post-
surgery condition and to work out a new remote work privilege plan for Duane’s return to work
on December 30. (Tr. 46-47; GC Exh. 4 at 3.) Duane wrote to Keyes that things were going very
well in terms of Duane’s healing from his surgery but that he had developed a nonserious 25
condition known as a fistula the day after the Christmas party which Duane believed would
“make it challenging to be out of the house for long periods of time until it fully heals” which
Duane’s doctor opined would be quickly. Id. Due to this new medical condition, Duane further
wrote:
I’m wondering if you’d be open to me working half days in the office and half 30
days at home for the first few weeks. This would make the transition much easier
for me, I think. Let me know what you think. Looking forward to being back at it.
Have a good holiday.
Scott [Duane]
Id. 35
On the following Monday, December 22, Keyes responded to Duane’s request for an
increased regular remote work agreement with Respondent and wrote:
… As far as the plan goes for returning to work, I would prefer that you be in the
office for your hours when you come back since you are more productive here. Is
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JD(SF)-21-16
there anything we can do to accommodate your situation so that you can work in the
office? If you would need to extend your leave to aid in your recovery, that would be
totally fine as well. Just let me know! Thanks. David [Keyes]
(Tr. 46-47; GC Exh. 4 at 2-3.) Keyes commented that because of Duane’s lack of productivity in
July-October 2014 during Duane’s pre-op procedures, Keyes was concerned about Duane’s 5
productivity if Duane came back part time again as he was proposing, half days in the office, half
days at home for 5 days a week. (Tr. 212-213.)
On December 23, at approximately 10:30 a.m., Duane had a text message conversation
with coworker Morse after receiving Keyes’ December 22 response referenced above.
Duane starts out saying to Morse: “David [Keyes] is breaking employment law it turns 10
out.” (GC Exh. 5 at 1.) Morse responds: “oh yeah? How are you my dear I miss you greatly.” Id.
Duane responds: “Yep. Lawyer says the case is textbook.” Id. Morse next says: “he has to let you
work remote ½ days.” Id. Duane next says: “Yes he does, as long as I can perform all essential
job junctions which of course I can.” Id. Morse then says: “yeah totally. I wonder if that was him
[Keyes]. Or acting on someone else’s behalf.” (GC Exh. 5 at 2.) Duane responds: “I am so done 15
with IXL [Respondent] as soon as possible.” Id. Morse responds: “yeah how is the job hunt
going?” Id. Duane replies: “I wondered too.” Id. Morse next says: “I just met w/ a girl at
Remind.” Id. Duane responds: “Oh nice.” Id. Morse concludes by texting: “and I finally applied
to IDEO.” Id.
Duane responded with his counter-proposal to Keyes later on Tuesday afternoon, 20
December 23, and wrote:
… So before I start I want to let you know that I’m writing with the intent of finding
a solution with you collaboratively – there’s a chance some of this email could be
read as combative or hostile, and that is not the tone I’m intending at all. I went
ahead and spoke with an employment attorney to check in about what is meant by 25
“reasonable accommodation”, and she said with certainty that remote work qualifies
here – after all, IXL [Respondent] employees frequently work remotely to take care
of children, to wait for repair people, because they’re sick, or even just to extend
vacations. This situation shouldn’t (and legally can’t) be treated any differently –that
is, under the Americans with Disabilities Act, IXL has to provide me with this 30
accommodation. The attorney I spoke with also provided several online resources to
me about the federal law which I am happy to pass onto you so that you can see
some examples of how the ADA is implemented. I am also CCing Marciela [Prada],
who I believe is still filling in as the HR manager and should be familiar with the
protections provided by the ADA. My doctor is happy to provide written 35
documentation, and actually suggested as much remote time as possible so that
things heal quickly, particularly the complication that has arisen. I completely
understand your concerns about remote work and productivity, and I also understand
that your primary responsibility is to make sure the math team meets all of its goals.
But the bottom line is, I want to return to work, and I am certain I can perform the 40
essential functions of my job while working remotely 50%. I’d like to find a solution
under which I return on the 30th with this accommodation, or something very close
to it. I suggest that we find some metrics that we can put in place so that you can
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monitor my progress to your satisfaction. I’d also suggest making all office time in
the morning, so that you’re sure to always have a chance to catch me in person to let
me know what you’d like prioritized, etc. If there’s anything else you’d like to
include, such as a weekly productivity review, I’m happy to do that as well. Best,
Scott [Duane] 5
(GC Exh. 4 at 2.)
At this time with his December 23 counter-proposal email, Duane meant by use of the
term “collaboratively” that he was looking to discuss with Keyes a way to come to an
accommodation that Duane felt he needed upon returning to work on December 30. (Tr. 99.)
Also, by his December 23 email, Duane was volunteering to provide medical documentation 10
from his doctor to Keyes in support of the accommodation he sought. (Tr. 101-102.) In addition,
Duane proposed that there be metrics in place and monitoring of progress in response to the
productivity issues that Keyes raised in his earlier email. (Tr. 102.)
Keyes forwarded Duane’s December 23 email to Prado and Ockenberg and Keyes
eventually discussed it with Mishkin too on December 24. (Tr. 224, 226.) Keyes says that this 15
email from Duane was the first notification to Mishkin on December 24 that “anything was
happening” and that Duane had complained of discrimination or what he believed was unfair
treatment with respect to his 50 percent remote work accommodation request. (Tr. 226-227,
243.)
Mishkin wanted to know from Keyes the background as Mishkin had just been drawn 20
into the situation about Duane’s current regular remote leave request, Duane’s earlier 2-month
leave and his pending return to work. (Tr. 232-233.) Keyes informed Mishkin that Duane had
gone out on leave for an operation and he is now coming back and he requested to work half
time at home 4 hours a day, and Keyes’ initial response was that Keyes preferred that Duane be
in the office because of Duane’s lower productivity from the preop appointments. Id. Keyes also 25
gave Mishkin information about Duane’s agreed part time remote work for 2 half days during his
pre-op appointments and then Keyes told Mishkin that while he preferred that Duane be
accommodated for work in the office, Keyes said in response to Duane’s email of December 23
that he would write a response to Duane’s email for Mishkin to review. Id. Keyes admitted to
Mishkin that he planned to accept Duane’s offer to work remotely for 50 percent at home 30
beginning on December 30, 2014. Id.
On Wednesday December 24, after consulting with Mishkin and getting his approval,
Keyes replied to Duane’s counter-proposal and accepts it explaining:
Thanks for the response. We are definitely on the same page here as far as goals are
concerned – that is, having you achieve a complete recovery while also being able to 35
fully contribute to the team when you return. To start, I would like to clarify a couple
of things from our previous emails. When you worked remotely the days of your
pre-op appointments, I noticed that productivity was down. This is why we tried
having you work half days and take half sick days. It is also why I said I preferred
that you return to work in the office full time if we could accommodate you 40
appropriately. You are definitely correct that the IXL development team does allow
employees to work remotely in a variety of situations (sick children, waiting for
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repair people, sick, extending vacations, etc…). This is allowed by manager
discretion based on the employee’s ability to work well in these types of situations.
Also, these sorts of working remotely requests are sporadic in nature (a day here, a
day there), and are different than working remotely part time every day. These more
regular requests are not always granted. Based on your doctor’s recommendation, it 5
sounds like reasonable accommodation in your case is to set up a part time remote
working situation. It would be great if you could provide written documentation for
this – and we can move forward with this plan. I’m happy to come up with
performance goals and a progress monitoring plan for you as well. Having your
office time be in the morning sounds great to me – thanks for that suggestion! I’m 10
looking forward to having you back and think that the 30th still works. We can talk
about specifics of our plan then. Thanks, David
(Tr. 102, 226-228; GC Exh. 4 at 1-2.)
Later on December 24, just before midnight, Duane further responds to Keyes’ last email
and writes: 15
I can understand your concerns, given the brief situation with remote work while
trying to balance my pre-op appointments. At that time I was trying my best to
contribute, while undergoing lengthy appointments that were physically and
mentally exhausting. I did not always keep up, despite my best efforts. In retrospect,
I should have requested a reasonable accommodation for my medical situation from 20
the beginning, rather than attempting to keep up with work on those days. I do
believe that this situation is very different. What I need is the opportunity to rest my
physical body from the kind of everyday movement that most people take for
granted – I am not attempting to attend appointments during that time as I was
previously. If you feel like I’m not keeping up with work with this accommodation, 25
please tell me directly. I’m happy to reevaluate if necessary. My doctor is not in his
office at this time, but he and his staff will get a written statement to you as soon as
possible. The 30th still works for me. I’ll see you then. Best, Scott [Duane]
(GC Exh. 4 at 1.)
The next day, Keyes finishes this email correspondence by writing: 30
This all sounds good. I’ve set up a meeting for us on the 30th from 10-11 am. Let
me know if you’d prefer a different time. I can get you caught up on what’s going
on the past couple of months and we can go over a game plan for your part time
remote situation. Thanks, David
(GC Exh. 4 at 1.) 35
Duane incorrectly views the December email chain above (GC Exh. 4), as evidence that
Keyes and Respondent denied Duane’s initial request for disability accommodation in writing.
(Tr. 90-93.) However, Duane also admits that after this email exchange from December 19-25,
2014, until he saw the remote work plan on December 30, 2014, Duane was satisfied with
Respondent’s accommodation for Duane to work remotely while preparing for and returning 40
from surgery. (Tr. 106.)
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G. The December 30, 2014 Meeting Between Charging Party and Keyes and Charging
Party’s Negative Posting on Glassdoor.com
On December 30 as planned, Duane returned to Respondent and he met with Keyes in
Keyes office. (Tr. 50.) Keyes wanted to inform Duane of personnel changes at Respondent and
changes in the math team since he was out and what projects that Keyes had going. (Tr. 50-51.) 5
Keyes informed Duane that one new product analyst had been hired, Mr. Bleeker, and
that he would be working full-time remotely from Louisiana because his wife had recently had a
serious medical diagnosis so he needed to take care of her. (Tr. 50.) Keyes next informed Duane
that another product analyst, Gina Bland (Bland), would be working 50 percent remotely from
Washington DC on alternating months so that she could be with her husband. (Tr. 50-51.) 10
Keyes also presented Duane with the regular Working Remotely Plan that Keyes drafted
based on Duane’s suggested schedule and that there be measurable metrics and which provided
that Duane work 50 percent remotely - Mondays from 6:30 to 10:30 a.m. at home and 12 p.m. to
4 p.m. at his office at Respondent and Tuesdays through Fridays 7 a.m. to 11 a.m. at Respondent
and 12 to 4 p.m. at home. (Tr. 213; GC Exh. 6.) The plan also required that Duane check in with 15
Keyes twice a week in person and twice a week by email. (Tr. 51.) Despite the clear language in
the plan, Duane testified that the terms included his coming to the Office every day at 8 a.m. and
staying until noon and then working from home the rest of the day from 1 p.m.-5 p.m. (Tr. 51.)
Duane did not voice any complaints about the regular 50 percent remote work plan that
Keyes presented on December 30 which was exactly what Duane had requested earlier in the late 20
December email chain referenced above. (Tr. 212-213.)
At the December 30 meeting with Keyes or soon thereafter, Duane became upset.
(Tr. 106.) Duane explains that it was a combination of 2 things-(1) Duane felt that the hours in
his regular remote work plan were more restrictive than they needed to be given the type of work
being done; and (2) Duane’s being informed by Keyes that 2 colleagues also had regular remote 25
work plans--one of whom was a brand new hire who received a much more flexible 100 percent
remote work plan working remotely from another state which Duane believed was unfair. Id.
Duane did not mention any prior discussions with other Respondent employees during the
December 30 meeting with Keyes.
As stated above, detail that Duane was unaware of included: Mathew Bleeker’s regular 30
remote schedule was 100 percent at home as Bleeker turned down Respondent’s first job offer
because he could not move from Louisiana due to his wife’s illness so Respondent revised its
offer and offered 100 percent work at home which was later accepted in November or December
2014 by Bleeker before he started after Duane’s employment at Respondent ended. (Tr.
222-224.) Another employee, Gina Bland, was allowed by Respondent to regularly work 35
remotely a 50/50 plan after her first 3 months had been 100 percent in the office and she did
well. (Tr. 224.) No evidence was presented showing that Duane ever viewed or inquired about
the specific remote work restrictions placed on Bleeker or Bland. (Tr. 88.) Duane’s view in late
December 2014, that his regular remote work plan that he received on December 30, 2014, was
more restrictive than other Respondent employees is also based his view that employees with 40
children were allowed sporadic remote work in contrast to what Duane received from July
through October 2014 when he was less productive. (Tr. 88-90.)
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After meeting with Keyes the morning of December 30, Duane met with Morse in
Respondent’s parking lot on his way home and Duane told Morse about the meeting with Keyes
and how they went over the regular 50 percent remote work plan for Duane. (Tr. 52-53.) Duane
complained to Morse that he felt that his remote work plan was more restrictive than other
people’s remote plans. Id. 5
Morse responded to Duane by citing a study about sick leave that said that companies
that allow unlimited sick leave to employees actually end up with employees using less sick
leave than companies with limited sick leave. (Tr. 53.) Duane responded to Morse by telling her
that the study results make sense because there was definitely a culture of guilt around taking
sick leave at Respondent. Id. 10
At approximately 10:36 p.m. on December 30, Duane and former Respondent employee
Wu have an email exchange where Duane complains about Respondent and tells Wu he has
started applying to other employers, he’s eagerly looking forward to the next step, and he is
committed to moving on from Respondent, he’s much less secretive about his trans status and
that if Mind is still hiring mathematicians, he was going to apply. (R. Exh. 4.) Duane also 15
mischaracterized Keyes requesting a doctor’s note when, in fact, Duane volunteered to provide
one for his regular 50 percent remote leave plan counterproposal. (Tr. 134-142; GC Exh. 4 at
1-2; R Exh. 4.)
Also late on December 30, Duane makes an anonymous posting to Glassdoor.com
entitled “Micromanaged and problematic.” (GC Exh. 7.) Duane admits that he did not state 20
anywhere in the posting that he was speaking on behalf of other Respondent employees as it next
alerts prospective recruits that it is from an anonymous current employee who doesn’t
recommend [working at Respondent to job seekers], gives Respondent a neutral outlook and
mentions the CEO under the title of the post as quick reference points. Id. The posting next
specifically provides: 25
I have been working at [Respondent] IXL Learning full-time (More than 3
years)[5]
Pros
Easy, unchallenging work, good medical benefits, free drinks. Hours are not too
crazy. The people are generally well-meaning and nice. The company isn’t going 30
anywhere right now. They play to the traditional classroom, which is good for
profits. You won’t have to worry about the company going under (but don’t
expect the profits to pass onto you, either).
Cons
Don’t expect a challenge working here. This company sets the bar extremely high 35
for who they hire, and then it gives their smart, talented employees boring, menial
work to fill the day. The CEO is overly involved in every product, every decision,
every everything. There are no politics if you fit in. If you don’t – that is, if you’re
5 This statement is untrue. Duane did not work for Respondent for 3 years as of December 30. Tr. 123. He worked
approximately less than 1.5 years.
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not a family-oriented white or Asian straight or mainstream gay person with 1.7
kids who really likes softball – then you’re likely to find yourself on the outside.
Treatment in the workplace, in terms of who gets flexible hours, interesting
projects, praise, promotions, and a big yearly raise, is different and seems to run
right along these characteristics. There is essentially no HR knowledge or staff at 5
this company. Know your rights when you work here, because they don’t, and
they don’t care to learn. Most management has no idea what the word
“discrimination” means, nor do they seem to think it matters.
Advice to Management
Choose one: listen to the ideas of a group of smart, talented employees, or 10
micromanage a group of mediocre employees. Don’t pull the bait and switch on
employees who can do way better. Build a culture that encourages respect for
people of all walks of life.
Helpful (14)
(Tr. 125; GC Exh. 7.) While Duane admitted that he knew that his December 30 Glassdoor.com 15
posting was going to be reaching potential or prospective new recruits to let them know of what
he felt was a bait and switch or a misleading campaign to recruit employees (Tr. 116117), he
also alleges that he made the posting because he was concerned about some of the treatment that
he and other employees had received in the workplace and Duane also thought it was important
to share those concerns with other employees. (Tr. 57.) I find this statement not credible that 20
Duane was concerned or even considered other current coworkers at Respondent when he made
this statement as none of his formerly-mentioned coworkers, Wu or Curiel, remained employed
at Respondent after August 2014 and Morse and Duane were interviewing and intended to leave
Respondent’s employment as of December 30. Duane also alleges that his posting implies that
the complaints listed in the posting are both for Duane and other Respondent employees. (Tr. 25
124-125.) I find this statement highly speculative and again not credible as the posting came
from Duane as an anonymous individual and does not imply any type of group message. The
evidence shows that by December 30, Duane is the only employee at Respondent with the
individual concerns listed in the December 30 posting. Duane also admits that he was upset on
December 30, 2014, when he made his December 30 Glassdoor posting. (Tr. 106.) 30
Duane worked remotely part time the first week of January 2015 and Keyes noticed that
Duane seemed visibly upset and non-communicative during this time period. (Tr. 213-214.) As a
result of Duane being visibly frustrated or upset during this time period, Keyes set up a meeting
with Duane for January 6, 2015, because Duane’s conduct was pretty unusual. (Tr. 214.)
H. The January 6, 2015 Meeting Between Charging Party and Keyes and Charging Party’s Text 35
Description of the Meeting Afterwards to Morse
On January 6, 2015, Duane and Keyes met in Keyes office and Keyes asked Duane if
everything was all right because Duane did not appear to be happy at the office. Duane believed
that the meeting revolved around his disability accommodation. (Tr. 60.)
Keyes opened the morning meeting by telling Duane that Keyes had noticed that Duane 40
had been upset since he came to work on December 30 and Keyes asked whether there was
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anything Keyes could do to help Duane. (Tr. 215.) Duane responded to Keyes by telling him that
he was unhappy with some of his work assignments, Duane felt that his ideas were not really
listened to, and that there was a lot of creative work to be done in the workplace. (Tr. 61.)
Duane also told Keyes that he was not just upset about the initial denied accommodation
flip-flop by Respondent. (Tr. 61-62.) Duane also mentioned that he was upset about Prado’s 5
training of Duane on the second or third day of work in July 2013 when Prado skipped over the
disability training saying to the trainee employees including Duane simply that: “You’re all
healthy, you don’t need this [disability training]. Id. Duane says that in July 2013, he knew that
he would probably have to take disability leave during his employment at Respondent and he
really needed the skipped training information. Id. 10
Duane also told Keyes that Brad Marshall (Marshall), Respondent’s former HR manager,
had initially given Duane incorrect information about the amount of time that Duane could take
on disability and that had, for a while, changed Duane’s plans for surgery. (Tr. 62.)
Duane also says he mentioned to Keyes being upset because Prado had asked Duane an
inappropriate question about Duane’s arm, which ended up being the donor site for his surgery 15
and that this was just another example in a long line of inappropriate things that had happened
around disability in the workplace. Id.
Finally, Duane also responded by telling Keyes that he was very upset at how
Respondent handled Duane’s return from disability leave, the ADA compliance and
Respondent’s disability accommodation to Duane and Duane told Keyes that he knew for a fact 20
that Respondent had discriminated against him. (Tr. 61, 215-216.) Duane repeated to Keyes that
Keyes had denied him something that Duane was legally entitled to receive, the disability
accommodation, and by initially denying Duane that disability leave accommodation, Duane felt
uncomfortable in the workplace. (Tr. 63.)
Keyes responded by defending his acceptance of Duane’s regular 50 percent remote 25
work plan proposal, getting emotional, his voice wavering a little bit, and telling Duane that he
was really sorry they had to have the conversation, that Keyes was upset that Duane was
unhappy and that it was not Keyes’ intention to make Duane feel upset in any way. Keyes tried
to explain to Duane that Keyes was trying to work with Duane on Duane’s returning to work in
late December at Respondent and Keyes again asked Duane if Respondent could accommodate 30
Duane in the office. (Tr. 215.) Keyes did not think he had discriminated against Duane and was
upset that Duane thought that Keyes had discriminated against him with the regular 50 percent
remote work plan and believed from Duane’s reaction that Keyes’ statements to Duane were
somehow inadequate so Keyes told Duane that Keyes would bring the issue up with upper
management, Ockenberg, and Mishkin. Id. Duane did not speak about any other Respondent 35
employees at this meeting. (Tr. 216.)
Duane responded to Keyes by admitting that his decreased productivity when undergoing
pre-op procedures was different than his current condition and regular 50 percent remote work
plan accommodation as Duane just needed to rest at home under the current regular 50 percent
remote work plan which was working well for Duane at the time. (Tr. 63-64.) Keyes responded 40
by telling Duane that he had noticed that Duane had been doing a really great job and that Duane
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had complied with the terms of the regular 50 percent remote work plan accommodation and met
all of his goals so far. (Tr. 64.)
Duane believed that Keyes was sincere when he got emotional at their meeting. (Tr.
126-127.) At his January 6, 2015 meeting with Keyes, Duane did not mention discussions with
other Respondent employees prior to the meeting. (Tr. 216.) Also, Duane admitted to Keyes that 5
Duane only assumed that other employees with remote work plans at Respondent did not have to
check in regularly with their managers as he did because their remote work was sporadic while
Keyes believably explained that this was not true. (Tr. 88, 221-223.)
Immediately after the meeting, Keyes emailed Prado and Ockenberg and met with them
and Mishkin soon thereafter to discuss Duane’s discrimination claim. (Tr. 217.) Keyes 10
recommended that Duane speak to Mishkin about the claim and see if it can be resolved. Id.
Mishkin responded to Keyes and told him he could meet with Duane later that same week. Id.
After meeting with Keyes and later that same morning of January 6, 2015, Duane and
Morse had the following text exchange initiated by Duane describing his earlier meeting with
Keyes: 15
Duane (CP): OMG [Oh my god], I just made David [Keyes] almost cry.
Morse (M): What?! Why. I’ll be at work at 9:15.
CP: He called me in and said you don’t seem happy & I said well IXL [Respondent]
hasn’t treated me well around my disability. And then I just kept talking. Jenna says I’m self-
righteous. 20
M: Oh wow.
CP: She is right & now David [Keyes] knows.
M: Oy well do u feel better or worse
CP: Better
M: I want to hear about it more. But not in office. 25
CP: Ya
M: Over a drank. [siq.]
CP: Yes
M: What were his parting words.
CP: Said he’s going to escalate it to Ockenberg6 on my behalf. Wants me to know that he 30
will try to earn my trust back & that he’s my advocate. Omg he was so upset.
M: Oh man.
6 In January 2015, Lenore Ockenberg was Respondent’s head of operations according to Duane at hearing. Tr. 63.
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CP: It’s hard being a straight cisgender able bodied white guy sometimes.
M: Scott [Duane]! Omg hah.
CP: So many marginalized people you don’t understand.
M: Be mic [siq.] Nice Hahahahaha
CP: Yeah yeah 5
M: Ur so cold lol [laugh out loud].
CP: You’re right. I am.
M: Escalate what to Lenore though. Isn’t he the issue sort of?
CP: I brought up everything, Marciela [Prado] asking inappropriate questions, skipping
the disability part of training, his handling of the accommodations, Brad [____] giving me wrong 10
info. It’s a systems problem. Sometimes my mouth won’t close.
M: Someone needs to tell it like it is. You should be a disability advocate.
CP: Yes, I shall just make everyone feel terrible & they will cave. Maybe I’ll meet up w/
you guys….
(Tr. 63; GC Exh. 8.) Duane opined that he exaggerated Keyes crying at their meeting and that he 15
was sarcastic when he said to Morse that it was hard for Keyes to be a straight cisgender able
bodied white guy sometimes. (Tr. 126-127.)
Also on January 6, 2015, around noon in the parking lot at Respondent’s facility, Duane
and Morse spoke in person and Duane reiterated what happened earlier in his meeting with
Keyes. Morse said she was glad someone was speaking up and telling them what they needed to 20
know although Morse herself had had a better experience with Respondent’s sick leave use when
she earlier experienced a neck injury. (Tr. 73-74, 97.) Duane believed that Morse had a different
supervisor than Duane and that Morse’s supervisor was more willing to accommodate her.
(Tr. 97.)
On January 7, 2015, early in the morning, Mishkin emailed Duane and told him that 25
Keyes had told Mishkin that Duane had “voiced a complaint about discrimination” and that
Mishkin would like to meet with Duane Thursday [January 8] at 11 a.m. to discuss this. (Tr. 245;
GC Exh. 10; R. Exh 6.) Mishkin also wrote to Duane that “[d]iscrimination of any type,
including disability discrimination is unacceptable to Mishkin and to Respondent and Mishkin
needs to understand what has been occurring so that he can take action immediately to correct it. 30
Id. At this point in time, Mishkin had not made any decision about Duane’s continued
employment. (Tr. 245.)
Also on January 7, Duane accepted Mishkin’s meeting invite at 8:06 a.m. and wrote;
“That sounds good. Looking forward to speaking with you.” (R. Exh. 6.)
On January 7, 2015, in late morning, Keyes first learned of Duane’s Glasdoor.com 35
posting from December 30. (Tr. 218.) Prado sent Keyes, Ockenberg, and Mishkin an email on
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January 7 with the December 30 posting saying “Hi everyone, I hate to assume who this is from
… but please read this review from Glassdoor for yourselves.” (Tr. 218-219; R. Exh. 8.)
After first seeing the December 30 Glassdoor posting on January 7, 2015, Keyes was
asked if he thought Duane had written the December 30 Glassdoor posting and Keyes said he
believed the December 30 posting came from Duane. (Tr. 225.) Mishkin also first learned of 5
Duane’s December 30 post on Glassdoor after Prado sent an email with the post to him later on
January 7. (Tr. 245-246.)
Upon reading Duane’s December 30 post, Mishkin believed it amounted to defamation
and he decided that the post was unacceptable and that Duane would have to be terminated as a
result of the recklessness of untrue statements in the December 30 posting to Glassdoor because 10
Mishkin also opined that Duane’s posting was an “outrageous” form of “defamation” because it
was posted in a public forum on Glassdoor, which Mishkin believed was an “extremely
important [tool] in recruiting candidates” in a tight job market. (Tr. 246-248, 272.) Mishkin also
believed that Duane’s December 30 Glassdoor posting was “blatantly untrue” and “also … the
way it was written and the place it was posted were specifically designed to hurt the Company 15
[Respondent]” because it would be seen by prospective recruits. (Tr. 272-273.) Keyes also
opined that Duane was terminated because of his December 30 Glassdoor posting. (Tr. 225.)
I. The January 8, 2015 Meeting Between Charging Party and Respondent’s CEO and
the Resulting Discharge of Charging Party
On January 8, 2015, Duane met with Mishkin at 11 a.m. in Mishkin’s office. (Tr. 220.) 20
Mishkin asked Duane how things were with Keyes now and Mishkin told Duane that Mishkin
understood that Duane had some issues related to discrimination that he wanted to discuss that he
raised with Keyes on January 6, 2015. (Tr. 76, 248.)
Duane said that things were fine with Keyes now and Duane repeated to Mishkin what he
had told Keyes about it being about Duane thinking that Keyes initially rejected Duane’s request 25
for a regular 50 percent remote work plan last December and how this position by Keyes was
“illegal.” (Tr. 76-77, 248, 273.) Duane admitted to Mishkin that he had productivity issues in the
past when working remotely. (Tr. 256.) Duane repeated Prado’s skipping over disability training
on Duane’s second or third day of work in July 2013. Id.
Duane then added one more complaint about when in December 2013 Penner told Duane 30
that one of Respondent’s employees that she supervises, Bridget, had Lupus and needed kidney
surgery and decided to add onto that a plastic surgery procedure. (Tr. 76, 98, 249.) Penner told
Duane that she reluctantly granted the sick leave request which led Duane to believe that
Respondent’s unlimited sick leave policy probably was not unlimited. (Tr. 98.)
Mishkin responds to Duane’s complaints by telling Duane that he would talk to Prado 35
and Penner about Duane’s complaints and Mishkin said that HR is a difficult specialty and that
there is really no way to be an expert in Human Relations. (Tr. 77, 148, 250, 273.)
Mishkin next asked Duane if there were any other complaints other than those he raised
with Keyes and the new one about Penner. Duane also told Mishkin that it was not legal what
Keyes had done--or what Respondent had done with regard to Duane’s disability accommodation 40
request and that it was not really a gray area with regard to HR. Id. Instead, Duane told Mishkin,
20

JD(SF)-21-16
HR is very cut and dry, in Duane’s situation, in particular. Id. At no time during his January 8,
2015 meeting with Mishkin did Duane mention any earlier discussions with other Respondent
employees that led to the December 30 posting or his meeting that day with Mishkin. (Tr. 152.)
Instead, all of the issues raised by Duane with Mishkin on January 8, 2015, were Duane’s
individual concerns and specific to his medical leave and disability issues. 5
After Duane listed all his complaints to Mishkin, Mishkin pulled out a printout of
Duane’s December 30 Glassdoor posting and said to Duane: “Now I want to talk about
something else.” (Tr. 77-78, 250-251, 273; GC Exh. 7.) Mishkin continued by saying “I know
what this is and I want to talk about it.” Id.
Duane responded by asking Mishkin why they were discussing the Glassdoor posting 10
when Duane had come in to discuss discrimination in the workplace. Id. Mishkin responded to
Duane saying that they had already addressed Duane’s complaints about discrimination and now
they were going to talk about the Glassdoor posting. Id.
Duane told Mishkin that anonymity exists online for a reason and Duane did not think
that it was fair that Mishkin was asking him about the posting. (Tr. 251. ) Mishkin responded by 15
telling Duane that: “You posted this online in a very public place. I have a right to ask you about
it.” Id.
Mishkin told Duane that Mishkin was bothered by Duane’s posting because what Duane
insinuates in the posting completely goes against Mishkin’s values and the values that Mishkin
worked so hard to cultivate at Respondent. Id. Mishkin next read the paragraph in the posting 20
that begins: “There are no politics if you fit in.” Id.
Duane immediately responded to Mishkin by saying he wrote the posting because he was
upset when he wrote it. (Tr. 122, 251.)
Mishkin continued to quote the posting and said to Duane that “you know, what you’re
saying here [in your posting] is if you’re not, if you work for IXL and you’re not white or Asian, 25
if you are not a straight or a mainstream gay, if you don’t like sports, if you don’t have kids, that
you’ll be discriminated against. That’s the claim you are making.” (Tr. 252.)
Duane responds by telling Mishkin that when he looks around Respondent those are the
kind of people that he sees and as a result, Duane told Mishkin that he has a hard time connecting
with people. Id. 30
Mishkin next asked Duane whether he is talking about discrimination or about
friendships? (Tr. 150, 252.)
Duane replies saying that “those things blend together.” Id.
Duane next apologized to Mishkin for making the December 30 Glassdoor posting and
repeated that he was mad or upset when he made the posting and Duane asked Mishkin if 35
Mishkin wanted Duane to take the posting down. (Tr. 79-80, 252-253.)
Mishkin responded to Duane by saying that he would like that if the posting came down
but “it’s already out there in the public.” (Tr. 253.)
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The two next discussed the part of the posting saying that the CEO is really involved in
every product and Duane accused Mishkin of canceling the video project. Mishkin told Duane
that the video project was Mishkin’s original idea and that it was canceled by Mishkin because
“it wasn’t an effort that made sense for us [Respondent] as a company.” (Tr. 148-149, 253-254.)
Mishkin returned to the posting alleging different treatment based on ethnicity, sexual 5
preference, or having children and Mishkin asked Duane if Duane has any evidence of
Respondent’s alleged different treatment. (Tr. 254.) Duane responded by telling Mishkin that “as
a queer person,” Duane doesn’t feel that he fits in and Duane also told Mishkin that he sees
employees with kids being able to work from home sporadically. Id.
Duane next repeated his claim about Keyes denying Duane’s initial request for a regular 10
50 percent remote work plan on December 22 and saying that this was illegal and Duane also
acknowledged that there were productivity issues with him working at home in the summer of
2014 and Duane admitted that he had not been productive working at home in the past. (Tr. 255.)
Mishkin then asked Duane if he thought that Keyes had a right to ask Duane about being less
productive working at home in the past and whether that should be factored into a future remote 15
work agreement. Id. Duane’s response to this question was simply “Yes, but that [Keyes initial
hesitation in granting Duane’s request for 50% work at home in December 2014] was still
illegal.” Id.
Mishkin asked Duane whether he had brought up any of his concerns with Keyes and
Duane said “Well, I might have mentioned something a couple of days ago.” (Tr. 255.) Duane 20
next told Mishkin that Duane had planned to mention something and that he had been struggling
a lot with health issues and low energy and Mishkin asked Duane how he came up with the
energy to make the December 30 Glassdoor posting and not find the energy to talk to your
manager? (Tr. 255-256.)
Mishkin and Duane opined that Respondent does not have a rule or policy requiring 25
employees to talk to management about work problems before disclosing them to third parties.
(Tr. 146-147, 256.) Mishkin, however, thought it was inappropriate that Duane did not speak to a
supervisor about his complaints about Respondent before going to Glassdoor with his posting on
December 30 and Mishkin believed it was common decency for Respondent’s employees to go
to their supervisors first to air their complaints or concerns. (Tr. 274, 281-282.) Mishkin 30
credibly denied that Duane’s termination resulted in any way from his not airing his complaints
or concerns first with supervisors before posting on Glassdoor. Id.
Mishkin concluded the meeting by telling Duane that he was sorry for whatever Duane
was going through health wise and Mishkin thanked Duane for sharing his concerns and
complaints. Id. Mishkin repeated to Duane that Mishkin would talk to Penner and Prada about 35
Duane’s concerns. Id.
Mishkin went on to terminate Duane’s employment at Respondent and saying that what
Duane did in his December 30 posting on Glassdoor was unacceptable, it showed extremely poor
judgment and poor ethical values. (Tr.80, 256-257.) Mishkin also told Duane that Mishkin could
not trust Duane, Mishkin could not imagine ever trusting Duane, or ever being able to work with 40
Duane and Mishkin believes that Duane was understanding the gist of their conversation when
22

JD(SF)-21-16
Duane got up and told Mishkin that “You’ll be hearing from my lawyer,” and just stormed out of
Mishkin’s office. (Tr. 256-257.)
III. ANALYSIS

A. Credibility Legal Standards 5

A credibility determination may rely on a variety of factors, including the context of the
witness’ testimony, the witness’ demeanor, the weight of the respective evidence, established or
admitted facts, inherent probabilities and reasonable inferences that may be drawn from the
record as a whole. Farm Fresh Co., Target One, LLC, 361 NLRB No. 83, slip op. at 13–14 10
(2014); see also Roosevelt Memorial Medical Center, 348 NLRB 1016, 1022 (2006) (noting that
an ALJ may draw an adverse inference from a party’s failure to call a witness who may
reasonably be assumed to be favorably disposed to a party, and who could reasonably be
expected to corroborate its version of events, particularly when the witness is the party’s agent).
Credibility findings need not be all-or-nothing propositions--indeed, nothing is more common in 15
all kinds of judicial decisions than to believe some, but not all, of a witness’ testimony. Farm
Fresh Co., Target One, LLC, 361 NLRB No. 83, slip op. at 14. To the extent that I have made
them, my credibility findings are set forth above in the findings of fact for this decision.

As stated above, while Duane admitted that he knew that his December 30 20
Glassdoor.com posting was going to reach potential or prospective recruits to let them know that
he felt that Respondent had a bait and switch or a misleading campaign to recruit employees (Tr.
116-117), Duane further makes the unbelievable statement that he also made the posting because
he was concerned about some of the treatment that he and other employees had received in the
workplace and Duane also thought it was important to share those concerns with other 25
employees. (Tr. 57.) I find this testimony non-credible as it was apparent at hearing that until
Respondent reasonably hesitated in granting Duane his regular 50 percent remote work privilege
proposal, Duane was very satisfied with the extensive leave and remote work accommodation
that Respondent had awarded to him with no reservations. With one foot out the door as of mid-
December 2014 when Duane started looking for a new job and had applied to work at other 30
employers, Duane admits he was upset and I find that he threw a tantrum on December 30 with
his personal gripe comprised of his unsupported and mistaken belief that Respondent had
discriminated against him somehow by accepting the regular 50 percent remote work privilege
that Duane himself put forth. Duane confuses Respondent’s sporadic remote work plan that has
no restrictions and is regularly granted to employees with a more formal regular remote work 35
privilege that has built in restrictions to monitor productivity and is granted based on merit at the
discretion of Respondent’s supervisors.

Duane’s credibility was further weakened when he misrepresented the length of his
employment at Respondent in the December 30 Glassdoor.com posting as he more than doubled 40
his actual employment time with Respondent and said he worked at Respondent for 3 years or 36
months rather than just 17 months. Also, Duane was not believable when he told Wu that
Respondent had rejected a disability accommodation proposal and was requiring Duane to obtain
a doctor’s note before considering the regular 50 percent remote work privilege plan. I find these
statements untrue and I further find that Duane volunteered the regular 50 percent remote work 45
privilege plan and to provide the doctor’s note and to comply with specific metrics to gauge
23

JD(SF)-21-16
productivity. (GC Exh. 4 at 2-3.) Also I find that Duane was unreasonable in his belief that
Respondent had discriminated against him by awarding the 50 percent remote work privilege
that Duane had requested that came with metrics or restrictions to gauge work productivity
especially given Duane’s admitted prior history of being less productive working remotely.
5
Duane was also not believable when he stated that he thinks his posting implies that the
complaints listed in the posting are both for Duane and other Respondent employees. (Tr.
124-125.) While it is true that the posting could have been seen by Duane’s coworkers, it is
apparent here that a negative posting, like Duane’s, was intended for prospective employees and
not Duane’s coworkers as all prior discussions by Duane and his coworkers about negative 10
comments posted to Glassdoor.com were specifically aimed at protecting Respondent’s ability to
recruit and find the best talent. (Tr. 54-57, 178-187.) I reject this testimony as I find that the
December 30 Glassdoor.com posting was intended by Duane as his individual gripe posted to
hurt Respondent’s ability to recruit prospective employees. I further find that the posting was
Duane’s reckless and impetuous reaction to Respondent’s reasonable hesitation to immediately 15
accepting Duane’s regular 50 percent remote work privilege Duane proposed due to Duane’s
earlier productivity problems. Duane admits that he was upset on December 30, 2014, when he
made his December 30 Glassdoor.com posting. (Tr. 106.) He also admits that prior to December
30, he was satisfied with Respondent’s flexibility and his use of Respondent’s paid sick leave
and disability leave benefits. I find that Duane’s erroneous belief that Respondent’s remote work 20
privilege was applied to him in a discriminatory way was what set him off to make his December
30 posting and there is no evidence that any other employee was similarly situated or even
shared Duane’s belief that Respondent’s remote work privilege was discriminatory.

The posting amounts to childish ridicule of Respondent without there being an ongoing 25
labor dispute present. Duane did not mention discussions with other Respondent employees
during the December 30 meeting with Keyes or his January 6 or 8 meetings with Keyes or
Mishkin. As stated above, I further find this statement untrue that Duane was concerned or even
considered other coworkers at Respondent when he posted on December 30 as none of his
formerly-mentioned coworkers, Wu or Curiel, remained employed at Respondent after August 30
2014 and Morse and Duane were both interviewing at other employers and intended to leave
Respondent’s employment as of December 30. Duane’s posting also does not imply that the
complaints listed in the posting are for other Respondent employees because this statement is
highly speculative and again not credible as the posting came from Duane as an anonymous
individual with his single gripe about Respondent’s remote work privilege and does not imply 35
any type of group message. The evidence shows that by December 30, Duane is the only
employee at Respondent with the individual concerns listed in the December 30 posting.

I also reject any statement by Duane that his friend Morse was solicited by him to assist
him with his complaint of Respondent’s alleged remote work privilege discrimination and that 40
she joined his cause when she allegedly told him on January 6, 2015, after Duane’s anonymous
December 30 Glassdoor.com posting, that “she was glad that someone was speaking up and, you
know, telling them [Respondent] what they needed to know.” (Tr. 74.) This January 6, 2015
parking lot conversation took place without management hearing the conversation and, more
importantly, after the anonymous December 30 Glassdoor.com posting. Moreover, Morse was 45
not called as a witness to testify at hearing and there is no evidence that she was unavailable to
24

JD(SF)-21-16
testify or was ever part of any group of employees that received a regular remote work privilege
at Respondent. Finally, there is no evidence that Morse was part of any group of employees who
shared Duane’s concern that Respondent’s remote work plan was discriminatory. Moreover, like
Duane, Morse had had a good experience with Respondent’s sick leave use when she earlier
experienced a neck injury. (Tr. 73-74, 97.) 5

Keyes was the most believable of all witnesses and testified in a non-hesitant confident
manner about Duane’s employment at Respondent and the events leading up to Duane’s
termination on January 8, 2015. I conclude that Keyes related the facts accurately, logically, and
to the best of his ability to do so. Keyes provided generally specific and detailed testimony. 10

Mishkin was also a credible witness who answered questions directly without coaching in
a naturally conversant fashion and believably testified about the same events leading to Duane’s
termination and the high risk of detrimental effect that Duane’s December 30 posting would have
to Respondent’s business and its continued ability to recruit prospective employees. 15

For these reasons, I credit Keyes’ and Mishkin’s testimony over Duane’s where there is a
conflict.

20
B. Duane’s December 30 Glassdoor.com posting was not a protected, concerted activity

Complaint paragraph 6(a) alleges that about December 30, 2014, Duane engaged in
concerted activities for the purposes of mutual aid and protection, by citing concerns of
workplace discrimination in a posting on Glassdoor.com, a job website that allows employees to 25
post reviews of their employer and make suggestions for improvement. 7

In general, the test for evaluating whether an employer’s conduct or statements violate
Section 8(a)(1) of the Act is whether the statements or conduct have a reasonable tendency to
interfere with, restrain, or coerce protected activities. Id.; Station Casinos, LLC, 358 NLRB No. 30
153, slip op. at 18–19 (2012); Yoshi’s Japanese Restaurant & Jazz House, 330 NLRB 1339,
1339 fn. 3 (2000). Apart from a few narrow exceptions, an employer’s subjective motivation for
its conduct or statements is irrelevant to the question of whether those actions violate Section
8(a)(1) of the Act. See Station Casinos, LLC, supra.
35
Thus, the initial inquiry to be made in this case is whether Duane engaged in protected
concerted activity when he posted concerns of workplace discrimination on the Glassdoor.com
website on December 30, 2014.

“To be protected under Section 7 of the Act, employee conduct must be both ‘concerted’ 40
and engaged in for the purpose of ‘mutual aid or protection.’” Fresh & Easy Neighborhood
7 Duane’s specific charge in this case was limited to the following: “I believe that IXL Learning terminated my
employment in retaliation for engaging in protected concerted activity. I posted my concerns about the terms and
conditions of my employment in an anonymous review to Glassdoor.com after discussing these concerns with
another IXL employee who was herself concerned about the company’s discriminatory practices. IXL terminated
my employment on January 8, 2015, on the basis of this review.” GC Exh. 1(a).
25

JD(SF)-21-16
Market, 361 NLRB No. 12, slip op. at 3 (2014). For the reasons set forth below, I find Duane’s
individual complaints criticizing management were not concerted or protected.

1. The December 30 Glassdoor.com posting is not concerted activity.
5
The Board has held that activity is concerted if it is “engaged in with or on the authority
of other employees, and not solely by and on behalf of the employee himself.” Meyers Industries
(Meyers I), 268 NLRB 493 (1984), revd. sub nom Prill v. NLRB, 755 F. 2d 941 (D.C. Cir. 1985),
cert. denied 474 U.S. 948 (1985), on remand Meyers Industries (Meyers II), 281 NLRB 882
(1986), affd. sub nom Prill v. NLRB, 835 F. 2d 1481 (D.C. Cir. 1987), cert. denied 487 U.S. 1205 10
(1988). Concerted activity also includes “circumstances where individual employees seek to
initiate or to induce or to prepare for group action” and where an individual employee brings
“truly group complaints to management’s attention.” Meyers II, 281 NLRB at 887. An
individual employee’s complaint is concerted if it is a “logical outgrowth of the concerns of the
group.” Every Woman’s Place, 282 NLRB 413 (1986); Mike Yurosek & Son, Inc., 306 NLRB 15
1037, 1038 (1992), after remand, 3 10 NLRB 831 (1993), enfd., 53 F.3d 261 (9th Cir. 1995).

The question of whether an employee has engaged in concerted activity is a factual one
based on the totality of record evidence. See, e.g., Ewing v. NLRB, 861 F.2d 353 (2d Cir. 1988).
The Board has found that “ostensibly individual activity may in fact be concerted activity if it 20
directly involves the furtherance of rights which inure to the benefits of fellow employees.” Anco
Insulations, Inc., 247 NLRB 612 (1980). An employee's activity will be concerted when he or
she acts formally or informally on behalf of the group. Oakes Machine Corp., 288 NLRB 456
(1988). Concerted activity has been found where an individual solicits other employees to
engage in concerted or group action even where such solicitations are rejected. El Gran Combo 25
de Puerto Rico, 284 NLRB 1115 (1987), enfd. 853 F.2d 966 (1st Cir. 1988). Conversely,
concerted activity does not include activities of a purely personal nature that do not envision
group action. See United Association of Journeymen & Apprentices of the Pipefitting Industry of
the United States and Canada, Local Union 412, 328 NLRB 1079 (1999); Hospital of St.
Raphael, 273 NLRB 46, 47 (1984); National Specialties Installations, 344 NLRB 191, 196 30
(2005).

The Board held that whether an employee’s activity is concerted depends on the manner
in which the employee’s actions may be linked to those of her coworkers. Fresh & Easy
Neighborhood Market, supra at 3. The Supreme Court has observed that “[t]here is no indication 35
that Congress intended to limit [Section 7] protections to situation in which an employee’s
activity and that of his fellow employees combine with one another in any particular way.”
NLRB v. City Disposal Systems, 465 U.S. at 835. Concertedness is analyzed under an objective
standard. Fresh & Easy Neighborhood Market, supra at 4. Employees act in a concerted fashion
for a variety of reasons, some altruistic and some selfish. Id. citing Circle K Corp., 305 NLRB 40
932, 933 (1991), enfd. mem. 989 F.2d 498 (6th Cir. 1993). Solicited employees do not have to
share an interest in the matter raised by the soliciting employee for the activity to be concerted.
Id. at 6, citing Mushroom Transportation, 330 F.2d 683, 685 (3d Cir. 1964), Circle K Corp., 305
NLRB at 933; Whittaker Corp., 289 NLRB 933, 934 (1988); and El Gran Combo, 284 NLRB
1115, 1117 (1987). 45

26

JD(SF)-21-16
In this case, I find no evidence that on December 30, 2014, when Duane posted his
personal gripes on Glassdoor.com., he was engaged in concerted or group action or acting in any
way on behalf of any fellow coworker at that time with similar discrimination claims. I further
find that the posting is Duane’s own purely personal complaint that is mistakenly based on
Duane’s unreasonable belief that he was wronged by Respondent when Respondent accepted 5
Duane’s own 50 percent regular remote work plan. The discrimination charge and complaint
allegations are limited to Duane’s alleged remote work plan discrimination allegation and any
expansion or added rationale for Duane’s December 30 posting are not credible. Furthermore,
Duane’s complaint about the alleged discriminatory remote work privilege award was an
individual one. He sought a 50 percent remote work privilege only for himself. His requests were 10
predicated not on a collective-bargaining agreement but on the negotiations he commenced in
mid-December 2014 which resulted in Respondent accepting all of Duane’s 50 percent remote
work privilege terms. Duane’s endeavors were commenced without prior support by fellow
workers and no evidence was introduced to show that any other employee shared Duane’s
complaint about being awarded a discriminatory remote work privilege by Respondent. See 15
Tampa Tribune, 346 NLRB 369, 371-372 (2006) (Employee who raised a personal gripe
complaint about favoritism was speaking only for himself and there was no evidence that his
coworkers even shared his belief that favoritism existed so no protected concerted activity); see
also National Wax Co., 251 NLRB 1064, 1064-1065 (1980) (Same).
20
Duane’s friend, Morse, did not testify or confirm what was alleged in his charge that
Duane felt his 50 percent regular remote work plan was more restrictive than other employees’
regular remote work plans. (Tr. 53.) As stated above, I reject Duane’s testimony that his
December 30 posting was made by him for other Respondent employees as it is unsupported by a
preponderance of the evidence. Also, Duane testified that Morse responds not that she too was 25
also “concerned about the company’s discriminatory practices” with its remote work plan
privilege as alleged in Duane’s charge but rather Morse simply cited a study about sick leave that
purportedly said that companies that allow employees to take unlimited sick leave actually end
up having employees taking less sick leave. I find that at no time did Morse complain to Duane
about similar discriminatory practices, nor did Duane ever seek to initiate, enlist, solicit, ask for 30
help, request any assistance, or induce group action either from Morse or others either leading to
his December 30 Glassdoor.com posting or in the posting itself. Instead, Duane’s reference to
alleged discriminatory practices by Respondent related only to his personal mistaken belief that
Respondent had wronged him by the way it accepted his 50 percent remote work privilege
proposal. 35

The Board in Fresh & Easy Neighborhood Market, 361 NLRB No. 12, slip op. at 3-4,
held that an employee who approached her coworkers with a concern implicating the terms and
conditions of their employment, and solicited or sought their help in pursuing it, was acting in a
concerted nature. (Emphasis added.) Here, as stated above, Duane did not approach Morse or any 40
of his coworkers with his discrimination concern or solicit or seek their help before he angrily
posted his criticisms of Respondent on Glassdoor.com on December 30, 2014.

Moreover, Duane’s December 30 Glassdoor.com posting alone is distinguishable from
Triple Play Sports, 361 NLRB No. 31, slip op. at 4 (2104), where the Board affirmed an 45
administrative law judge who found that a social media website known as Facebook discussion
27

JD(SF)-21-16
amongst 4 employees was concerted activity because it involved four current employees and was
“part of an ongoing sequence” of discussions that began in the workplace about the Respondent’s
calculation of employees’ tax withholding. Noting that the employees, in their Facebook
conversation, discussed issues they intended to raise at an upcoming staff meeting as well as
possible avenues for complaints to government entities, the judge also found that the participants 5
were seeking to initiate, induce, or prepare for group action. As a result, the judge concluded that
the Facebook discussion was concerted under the standard set forth in Meyers Industries, 281
NLRB 882, 887 (1986).

Here, Duane’s posting on Glassdoor.com was not a social media posting like Facebook or 10
Twitter. Instead, Glassdoor.com is a website used by Respondent and prospective employees as
a key recruiting tool to recruit prospective employees. Other than a single anonymous “helpful”
mark without any ability for discussion, the anonymous December 30 posting was Duane’s final
personal salvo against Respondent on his way to a new employer. I further find that Duane
posted his anonymous exit message to the general public and used Glassdoor.com as his attempt 15
to harm Respondent’s recruiting efforts. The posting was not part of any ongoing sequence of
discussions between Duane and his fellow coworkers as the two coworkers he complained with
most earlier in 2013 and early 2014 about subjects entirely separate from any complaint
involving Respondent’s discriminatory regular remote work privilege, Curiel and Wu, had
already left the company well before December 30.8 More importantly, there is no evidence put 20
forth that anyone other than Duane shared his individual concern that Respondent’s remote work
privilege was being awarded in a discriminatory way.

I do not find that Duane engaged in concerted activity when he posted his anonymous
December 30, 2014 Glassdoor.com to voice his concerns of workplace discrimination as alleged 25
in paragraph 6(a) of the complaint. The credited evidence does not show that any of Duane’s
conversations were concerted or directed to his coworkers. In each conversation leading up to his
posting, Duane spoke of only his own issues with Keyes and Mishkin and did not mention any
sort of concerted discussion with a coworker, group action or concern. At hearing, Duane failed
to credibly show that his issues about Respondent’s remote work privilege extended to any other 30
coworker beyond his own mistaken belief that that he had been mistreated or discriminated
against in any way by Respondent. Duane failed to list any other employee’s like-minded
concerns of discrimination at his meeting with Keyes or Mishkin or in the December 30
Glassdoor.com posting. In addition, even when Duane complained to Keyes and Mishkin, he did
so in pursuit of his personal interest regarding how he was being treated by Keyes in the 50 35
percent remote work privilege and not how he and others were being treated. Duane never
credibly claimed to act or intend to act on behalf of any other employee and he did not seek to
initiate, induce, or prepare for group action when he met with Keyes or Mishkin. Based on the
foregoing, I find the General Counsel has failed to adduce evidence sufficient to establish that
Duane’s December 30 Glassdoor.com posting was concerted. 40

I also find that no evidence was presented which proves that before their meeting on
January 6, 2015, Keyes and Respondent had knowledge of the details of Duane’s medical
8 The General Counsel makes note of Duane’s coworker Morse’s January 6, 2015 comment to Duane that “someone
needs to tell it like it is.” I find that this is not evidence that the December 30 posting is a concerted action as the
comment is made, unknown to management, after the personal posting was made by Duane in a fit of anger .
28

JD(SF)-21-16
procedures in 2014 or that Respondent was aware that Duane was a transgender or disability
activist. Duane admits through his texts and emails with coworkers and former coworkers that
his surgery was a private matter and even Morse, a close friend and confidante to Duane, was
unaware that Duane was a disability advocate as of January 2015. (See GC Exhs. 3 and 8.) I once
again find and reject that the evidence of the results of an internet search in November 2015 5
using the Google search engine should disclose to Respondent or make it apparent that Duane
was such an activist as of December 2014 and I find this evidence too speculative and
inadmissible.

In addition, there is no evidence that other employees shared Duane’s concerns about 10
Respondent’s alleged discriminatory awarding of its remote work privileges or alleged shoddy
human relations department work. While it appears that Morse empathized with Duane, there is
no evidence that Morse also shared a remote work privilege with Respondent or that Duane and
Morse sought to act as a group to challenge Respondent’s regular remote work privileges or
allegedly shoddy human relations department work. Moreover, after Duane’s December 30 15
posting, Morse stated that she was satisfied with how her supervisor handled her own sick leave
use. Also there was no evidence put forth by the General Counsel that any conversation that
Duane had with any coworker leading up to his December 30 Glassdoor.com posting was
engaged in with the object of initiating or inducing or preparing for group action or that it had
some relation to group action in the interest of Respondent’s employees. See Mushroom 20
Transportation, supra at 685 (Conversation between 2 employees constitutes concerted activity
only if “at the very least it was engaged in with the object of initiating or inducing or preparing
for group action or that it had some relation to group action in the interest of employees.).

I further find that even when concerns, unknown to management,9 were voiced in 2013 or 25
early 2014 by or in Duane’s presence before Wu and Curiel left Respondent’s employment,
nothing was done to take further group action beyond these isolated events such as the filing of
grievances, there were no work stoppages or strikes, and no petition was circulated. Duane never
credibly claimed to act or intend to act on behalf of any other employees and he did not seek to
initiate, induce, or prepare for group action when he made his December 30 Glassdoor.com 30
posting or met with Keyes or Mishkin.

In addition, I find that there is no connection between Duane’s December 30 posting/his
resulting termination and any of Duane’s alleged protected concerted discussions with coworkers
in 2013, 2104, and January 2015. First of all, as referenced above, most of the discussions 35
occurred outside the direct presence of management and the General Counsel has not satisfied
her burden of proving by a preponderance of evidence that Keyes, Mishkin, or any of
Respondent’s managers knew of these isolated and attenuated discussions between Duane and
his coworkers. More importantly, Duane’s December 30 Glassdoor.com posting admittedly was
generated by him as his angry reaction to Respondent’s award to him of his requested remote 40
work privilege which is unrelated to Duane’s discussions with coworkers in 2013, 2014, and
2015 on entirely different subjects and not Respondent’s remote work privilege.
9 I reject the General Counsel’s argument that these “discussions were likely overheard by [Penner] her” because her
office was located approximately 10-15 feet from a group of cubicles. GC Br. at 2. I find this argument speculative
and unsupported by the evidence especially when most of the conversations occurred during the lunch hour or
outside Respondent’s premises.
29

JD(SF)-21-16

Once again, Duane admitted that before his December 30 meeting with Keyes, he was
satisfied with his use of Respondent’s earlier partial remote work privilege and his sick leave and
disability leave benefits that Duane had used 25-30 days of partial sick leave and 2 full months
of disability leave in 2014. Duane’s only real gripe as of December 30 was his false belief that 5
Respondent had discriminated against him when awarding him the 50 percent remote work
privilege he had requested.

Furthermore, by December 30, Morse and Duane were actively seeking to leave
Respondent and there is no evidence that there were any other coworkers who would share or 10
benefit from Duane’s posting. I find that Duane intended his December 30 Glassdoor.com
posting to direct prospective employees to ignore Respondent’s recruiting attempts and go
elsewhere for employment. This also shows that Duane’s posting was intended to harm
Respondent’s ability to recruit new employees and not benefit coworkers. Hence, Duane’s mere
griping or “concerns” with Respondent were purely personal in nature and not concerted activity 15
undertaken for mutual aid or protection.

The General Counsel argues in her closing brief that I should follow the holdings in
Caval Tool Division, Chromalloy Gas Turbine Corp., 331 NLRB No. 101 (2000), and Whittaker
Corp., 289 NLRB No. 116 (1988), and find that Duane’s December 30 Glassdoor.com posting is 20
a concerted activity. (GC Br. at 17.)10 In Caval Tool, Inc., for example, an outburst by one
questioning employee was considered concerted activity when the employee interrupted a group
meeting between employees and management by voicing her disgruntlement with the company’s
newly announced coffee break policy. Caval Tool, Inc., supra at 863. Similarly, in Whitaker
Corp., an employee’s spontaneous remarks at a group meeting of employees gathered to hear the 25
company’s president announce that the employees’ anticipated wage increases would not be
forthcoming was held to be concerted activity as his statements implicitly elicited support from
his fellow employees against the announced change. Whitaker Corp., supra at 934. The facts in
these cases are distinguishable, however. Here, Duane’s December 30 posting was generated by
him anonymously into a public forum as his angry individual response to Respondent’s personal 30
award to him of the 50 percent remote work privilege he had requested that was specific to
Duane and did not involve an announced change in a common employee benefit affecting all
employees at a group meeting. Moreover, the December 30 posting was intended by Duane to
harm Respondent’s continuing ability to recruit prospective employees and not to initiate or
induce any group action. Unlike social media posting, Duane’s anonymous December 30 posting 35
did not initiate any group discussion. I further find that this anonymous December 30 posting
10 The General Counsel also cites to the case Salt River Valley Water Users Assn., 99 NLRB 849, 853 (1952), enfd.
206 F.2d 325 (9th Cir. 1953) and argues that Duane’s December 30 Glassdoor.com posting was Duane’s preliminary
step to acting in concert and therefor the posting is a concerted activity. GC Br. at 15. The facts in Salt River Valley
are distinguishable from the facts in this case as Salt River Valley involved an employee Sturdivant found to be
acting in a preliminary step to acting in concert when he circulated a petition among his coworker employees,
otherwise known at the time as “zanjeros,” designating himself as agent to take any action necessary to collect back
wages allegedly owed the employees by the employer. Here, Duane’s anonymous Glassdoor.com posting was not a
similar preliminary step to acting in concert as his act of anonymous posting was made in anger as a childish ridicule
of Respondent to hurt Respondent’s ability to recruit on Duane’s way out of the company and represents his
individual action complaining anonymously that his remote work privilege was awarded to him in a discriminatory
manner without any fellow coworker employees sharing this same complaint.
30

JD(SF)-21-16
having garnished 15 anonymous “helpful” marks does not equate to the potential for group
discussion nor does it solicit or initiate coworker assistance or group action and it is not
concerted activity. .

The General Counsel also argues that Duane’s anonymous December 30 posting is also 5
protected under the Board’s doctrine of “inherently concerted” activity and she cites to cases
where the Board has held that employee communications about wages, work schedules, and job
security are inherently concerted. See GC Brief at 17-19 and cases listed therein. The facts in
these cases are distinguishable from the facts in this case, however, because they involved actual
discussions amongst coworkers about wages, work schedules and job security. Here, Duane’s 10
explanation for his December 30 posting is that he was upset about Respondent’s award to him
of his 50% remote work privilege which I find is not an inherently concerted activity as it is not
an employer benefit affecting all employees. Rather, remote work is a privilege awarded to
employees who earn it through metrics that reflect stable or increased productivity. Also,
Duane’s anonymous one-way posting did not allow for any further discussion from anyone in 15
response to the anonymous posting the same as a social media posting allows on Facebook,
Twitter, or Instagram. Moreover, as stated above, by December 30, Duane and Morse intended to
leave their employment at Respondent and there is no evidence that the posting was a discussion
amongst Duane and his coworkers intended to induce group action to make it “inherently
concerted.” Instead, Duane intended his impulsive one-way posting to hurt Respondent’s ability 20
to recruit new employees on his way out to a new job.11

2. The December 30 posting is unprotected under the Act.

Even assuming arguendo that Duane engaged in concerted activity, I find his December 25
30 Glassdoor.com posting was not protected. To be protected under the Act, the activity must
relate to Section 7 rights. [“S]ome concerted activity bears a less immediate relationship to
employees' interests as employees than other such activity,” and “at some point the relationship
becomes so attenuated that an activity cannot fairly be deemed to come within the ‘mutual aid or
protection’ clause.” Eastex, Inc. v. NLRB, 437 U.S. 556, 567–568 (1978). Simply put, it is 30
difficult to see how Duane’s complaints were aimed at improving “the interests of employees
qua employees.” See G & W Electric Specialty Co., 154 NLRB 1136, 1137 (1965).

The concept of “mutual aid or protection” focuses on the goal of the concerted activity;
whether the employee or employees involved are seeking to improve terms and conditions of 35
employment or otherwise improve their lot as employees. Fresh & Easy Neighborhood Market,
supra at 4-5 citing Eastex, Inc. v. NLRB, 437 U.S. 556, 565 (1978). Employee motive is not
relevant to whether the activity is engaged in for mutual aid or protection. Fresh & Easy
Neighborhood Market, supra at 6. The analysis focuses on whether there is a link between
employee activity and matters concerning the workplace or employees’ interests as employees. 40
Id. Although personal vindication may be among the soliciting employee’s goals, that does not
mean that the soliciting employee failed to embrace the larger purpose of drawing management’s
11 The same effect would be reached in the analogous situation where an employee hires a skywriting company to
fly across the Silicon Valley over the lunch hour or during rush hour traffic with a similar anonymous one-way
message disparaging an employer that was posted by Duane on December 30.
31

JD(SF)-21-16
attention to an issue for the benefit of all of his or her fellow employees. St. Rose Dominican
Hospitals, 360 NLRB No. 126, slip op. at 4 (2014).

Furthermore, employee discussions that do not include representatives of their employer
are protected. The Board has made clear that employee discussions with coworkers are 5
indispensable initial steps along the way to possible group action and are protected regardless of
whether the employees have raised their concerns with management or talked about working
together to address those concerns. Hispanics United of Buffalo, 359 NLRB 368, 370 (2012),
citing Relco Locomotives, 358 NLRB 298, 315 (2012), affd. and incorporated by reference at
361 NLRB No. 96 (2014). Protection is not denied because employees have not authorized 10
another employee to act as their spokesperson. NLRB v. City Disposal Systems, 465 U.S. 822,
835 (1984).

Here, some of the complaints beyond Duane’s specific charge in this case are unprotected
and largely concern Duane’s impression that Respondent’s product, online math tests, could be 15
produced in a more creative way but for CEO Mishkin’s hand’s on “micromanagement.” The
Board has held that employee activity aimed at bringing about a change in management
hierarchy is normally unprotected because it lies outside the sphere of legitimate employee
interest. See NLRB v. Oakes Machine Corp., 897 F.2d 84 (2d Cir. 1990).
20
These complaints of how Respondent’s “product” is created are not thereby converted
into a working condition. “In general, ‘employee efforts to affect the ultimate direction and
managerial policies of the business are beyond the scope’ of Section 7.” Riverbay Corp., 341
NLRB 255, 257 (2004) (quoting Lutheran Soc. Serv. of Minnesota, 250 NLRB 35, 41 (1980)).
The quality of the “product” is among these managerial prerogatives that are “not encompassed 25
by the ‘mutual aid or protection’ clause.” Lutheran Soc. Serv. of Minnesota, supra at 42.

Factory workers, too, may manifest a strong interest in the goods they produce, but the
nature of those goods is not a condition of employment . . .” Waters of Orchard Park, 341 NLRB
642, 645–646 (2004). I find Duane’s complaints criticizing management’s decision to cancel a 30
video project or micromanaging its employees were not protected activities. Duane failed to
show how his concerns about the cancellation of a video project or Respondent founder and CEO
Mishkin’s alleged micromanagement would benefit his fellow employees. Moreover, as
discussed below, criticisms about management’s decision to cancel a project are not criticisms
about working conditions, but are instead criticisms of Respondent’s product. 35

Other than attenuated common complaints against management and Respondent’s
policies, Duane did not have any significant concerns with Keyes or Respondent until his return
to work on December 30, 2014, when Duane began using the 50 percent remote work privilege
that he first proposed to Respondent earlier that month. Duane’s impulsive posting to 40
Glassdoor.com the night of December 30 was the direct result of his mistaken judgment that
Respondent was discriminating against him by requiring him to enter into a regular remote
privilege agreement. I find that there was no evidence presented to show that Respondent
discriminated against Duane or any employee in its remote work privilege program and that
Respondent was justified and acted reasonably based on Duane’s past decreased productivity 45
32

JD(SF)-21-16
working remotely when Respondent presented Duane with the 50 percent remote work privilege
that Duane had requested.

Here, Duane’s remote work privilege gripe/discrimination claim and resulting
anonymous posting to Glassdoor.com are individual in nature as only Duane is complaining 5
about Respondent’s remote work privilege being applied improperly and only Duane’s
individual interests were being advanced by his discrimination complaint posting and not those
of his coworkers. Duane never solicited Morse’s help or any coworker’s assistance in
complaining about alleged remote work privilege discrimination. Unless Duane’s coworkers
were solicited by Duane to assist him in complaining to management about alleged remote plan 10
privilege discrimination, I find that Duane was not acting for the purpose of mutual aid or
protection with his December 30 Glassdoor.com posting. See Fresh & Easy Neighborhood
Market, supra at 6-8 (Board finds that employee’s solicitation of her coworker colleagues’
assistance in complaining to the employer about a harassment incident was for the purpose of
mutual aid or protection). 15

Consequently, I find that Duane, as a disgruntled employee with one foot out the door
who was actively seeking new employment, made his anonymous December 30 Glassdoor.com
posting specifically to harm Respondent’s business and its ability to recruit prospective
employees and not as a concerted protected activity. Based on the foregoing, I find the General 20
Counsel failed to establish that Duane engaged in activity protected by Section 7 through his
December 30 Glassdoor.com posting.

In addition, the Board has long recognized that an employer has a legitimate interest in
preventing the disparagement of its products or services and, relatedly, in protecting its 25
reputation from defamation and reckless disparagement. Section 7 rights are balanced against
these interests, if and when they are implicated. In striking that balance, the Board applies these
principles in accordance with the Supreme Court’s decisions in Jefferson Standard, 346 U.S. 464
(1953) and Linn v. Plant Guards Local 114, 383 U.S. 53 (1966).
30
In Jefferson Standard, the Court upheld the discharge of employees who publicly
attacked the quality of their employer’s product and its business practices without relating their
criticisms to a labor controversy. The Court found that the employees’ conduct amounted to
disloyal disparagement of their employer and, as a result, fell outside the Act’s protection. 346
U.S. at 475–477. In Linn, the Court limited the availability of State-law remedies for defamation 35
in the course of a union organizing campaign “to those instances in which the complainant can
show that the defamatory statements were circulated with malice and caused him damage.” 383
U.S. at 64–65. The Court indicated that the meaning of “malice,” for these purposes, was that the
statement was uttered “with knowledge of its falsity, or with reckless disregard of whether it was
true or false.” Id. at 61. 40

Applying these precedents, the Board has held that “employee communications to third
parties in an effort to obtain their support are protected where the communication indicated it is
related to an ongoing labor dispute between the employees and the employers and the
communication is not so disloyal, reckless, or maliciously untrue as to lose the Act’s protection.” 45
33

JD(SF)-21-16
MasTec Advanced Technologies, 357 NLRB 103, , 107 (2011) (quoting Mountain Shadows Golf
Resort, 330 NLRB 1238, 1240 (2000)).

Turning to the facts of this case, I find that Duane’s allegation in his December 30
Glassdoor.com posting to the general public that Respondent discriminated against him when it 5
awarded him the same 50 percent remote work privilege that he had earlier requested was
maliciously untrue and made by him with reckless disregard of whether it was true or false as his
real intention in his angered state of mind was to hurt or damage Respondent’s ability to recruit
prospective employees who used Glassdoor.com to arrange interviews and seek employment.
10
The first prong of the Jefferson Standard test is not at issue here. There was no ongoing
labor dispute at Respondent on December 30 when Duane posted his individual untrue
complaints of discrimination because at that time only Duane’s personal complaint existed
sparked as only his angry response to the 50 percent% remote work privilege award. No other
employees were involved at that time with the same unreasonable complaint concerning 15
Respondent’s remote work privilege. Duane himself admitted he had no issues or complaints
with Respondent’s paid sick leave policy or disability leave program before December 30 as
Duane had been granted all of the paid sick leave and disability leave he requested before
December 30, 2014. (Tr. 87-96.) Thus, I find that there was no ongoing labor dispute at the time
of Duane’s December 30 Glassdoor.com posting. 20

As to the second prong of the test, I further find that Duane’s angry childish posting was
“so disloyal and reckless as to lose the Act’s protection” under Jefferson Standard and its
progeny. See MasTec, 357 NLRB 103, at 107. The posting disparaged Respondent by recklessly
stating that most of Respondent’s “management has no idea what the word ‘discrimination’ 25
means, nor do they seem to think it matters.” (GC Exh. 7.) Statements are maliciously untrue and
unprotected, “if they are made with knowledge of their falsity or with reckless disregard for their
truth or falsity.” Mastec, supra at 107 (citations omitted). The mere fact that statements are
false, misleading or inaccurate is insufficient to demonstrate that they are maliciously untrue. Id.
(internal quotation marks and citations omitted). 30

Duane’s discrimination comments are maliciously untrue as Duane made them with
reckless disregard for their truth or falsity. My examination of Duane’s December 30
Glassdoor.com posting shows that it exceeded the standard of the Supreme Court, which holds
that even the most repulsive speech enjoys immunity provided it falls short of deliberate or 35
reckless untruth. Linn, supra at 63. Under the standard set forth in Linn and its progeny, the
Respondent has the burden to establish that the comments were maliciously untrue. Springfield
Library & Museum, 238 NLRB 1673, 1673 (1979). The Respondent has met this burden.

Here, with one foot out the door, I find that Duane’s angry posting on the Glassdoor.com 40
recruiting website was intended by him to hurt Respondent’s ability to compete and recruit new
employees and contained reckless untruths that Respondent discriminated against its employees.
As stated above, Duane unreasonably became angry thinking he had been discriminated against
by Respondent when Respondent did no such thing. Respondent simply accepted Duane’s 50
percent remote work privilege proposal when it awarded him the privilege of working remotely. 45
Duane mischaracterized the events leading up to the written December 30 remote work privilege
34

JD(SF)-21-16
plan when he told Wu that Respondent required Duane to obtain a doctor’s note before
considering a remote work plan and that Respondent required that specific metrics to gauge
productivity be in place. Both of these suggestions came from Duane who volunteered to provide
these before the work plan was finalized. In addition, Duane falsely told to Wu that Respondent
rejected his 50 percent remote work plan proposal as Respondent through Keyes simply and 5
reasonably hesitated in accepting Duane’s 50 percent remote work proposal due to Duane’s prior
low productivity working remotely in the summer of 2014. Respondent then accepted Duane’s
50 percent remote work proposal in its entirety with no changes. With this background, I further
find that Duane’s angry discrimination complaint in his December 30 Glassdoor.com posting
was recklessly untrue and not protected by the Act. Accordingly, I find that Duane’s December 10
30 Glassdoor.com posting lost protection under Linn.

I further find that Duane’s discrimination complaint was so disloyal or recklessly
disparaging as to lose the protection of the Act.
15

In summary, the disloyalty standard is at base a question of whether the employees’
efforts to improve their wages or working conditions through influencing strangers to the
labor dispute were pursued in a reasonable manner under the circumstances. Product
disparagement unconnected to a labor dispute, breach of important confidences, and 20
threats of violence are clearly unreasonable ways to pursue a labor dispute. On the other
hand, suggestions that a company’s treatment of its employees may have an effect upon
the quality of the company’s products, or may even affect the company’s own viability
are not likely to be unreasonable, particularly in cases when the addressees of the
information are made aware of the fact that a labor dispute is in progress. Childish 25
ridicule may be unreasonable, while heated rhetoric may be quite proper under the
circumstances. Each situation must be examined on its own facts, but with an
understanding that the law does favor a robust exchange of viewpoints. The mere fact
that economic pressure may be brought to bear on one side or the other is not
determinative, even if some economic harm actually is suffered. The proper focus must 30
be the manner by which that harm is brought about.

Sierra Publishing Company v. NLRB, 889 F.2d 210, 220 (9th Cir. 1989).

Here, under the totality of facts, I find that Duane’s angry and impulsive discrimination 35
complaint is better characterized as childish ridicule in the nature of a personal attack on
Respondent’s ability to recruit new employees than as related to a legitimate labor dispute or
ongoing grievances from a group of employees. As such, I further find that Duane’s December
30 posting was so disloyal and recklessly disparaging of Respondent as to lose protection under
the Act. See also Jefferson Standard, supra at 472 (NLRA doesn't protect “calculated devastating 40
attacks upon an employer's reputation and products.”) Hence, Duane’s December 30 Glassdoor
posting was not protected by the Act, and his discharge was lawful. The Respondent’s action
terminating his employment did not violate Section 8(a)(1) of the Act.

45
35

JD(SF)-21-16
C. The Respondent did not violate Section 8(a)(1) by terminating Duane for posting on
Glassdoor.com before bringing a complaint to management and therefore Respondent
maintained and overbroad rule.

The General Counsel amended her complaint paragraphs 6(b) and 6(e) in this action on 5
October 22, 2015, to add a further allegation that Duane was terminated for violating an unlawful
rule prohibiting employees from bringing workplace complaints to third parties without first
raising them with their supervisor. The General Counsel therefore argues that Respondent
maintains an overbroad rule that unlawfully interferes with the statutory right of employees to
communicate their employment-related complaints to persons and entities other than the 10
employer (including a union or the Board) and cites the case Kinder-Care Learning Centers, 299
NLRB 1171, 1172 (1990), in support of her argument. In addition, the General Counsel argues
that even if the rule is unwritten, it remains unlawful as verbally promulgated rules also violate
the Act. Hyundai America Shipping Agency, 357 NLRB 681, 695 (2011), review granted in part
and decision reversed in part, Hyundai Am. Shipping Agency, Inc. v. NLRB, 2015 WL 6875278 at 15
3, (D.C. Cir., No. 11-1351, 11/6/15)(“[M]erely encouraging and not requiring employees to take
actions potentially implicating their Section 7 rights doesn't amount to an employer's attempt to
‘interfere with, restrain, or coerce’ them in violation of Section 8(a)(1).”).

The General Counsel argues in her brief that “Duane’s testimony about the words 20
Mishkin used implied it was a requirement that employees must first go to management with
their complaints.” (GC Br. At 8.) I reject this argument as being unsupported by the evidence as I
have found, as stated above, that Mishkin and Duane both agreed that Respondent does not have
such a rule or policy requiring employees to talk to management about work problems before
disclosing them to third parties. (Tr. 146-147, 256.) In addition, I further find that Mishkin 25
credibly denied that Duane’s termination resulted in any way from his not airing his complaints
or concerns first with supervisors before posting on Glassdoor.com. (Tr. 274, 281-282.)

I find that the General Counsel has failed to prove either the existence of an unlawful
policy or the unlawful termination of Duane for violating any unlawful Respondent rule or 30
policy.

D. There is no evidence that Respondent’s termination of Duane was a “preemptive strike”
to suppress future protected concerted activity.
35
The General Counsel amended her complaint in this action at hearing to add a further
allegation that Respondent fired Duane to suppress protected concerted activity by other
employees and cites Parexel International, LLC., 356 NLRB 516, 519 fn. 9 (2011), in support of
her argument. In Paraxel, an employee was terminated because the employer did not want her to
discuss wages and discrimination with other employees. An employer violates the Act when it 40
acts to prevent future protected activity. Parexel International, LLC., 356 NLRB 516, 519 fn. 9
(2011). “After all, the suppression of future protected activity is exactly what lies at the heart of
most unlawful retaliation against past protected activity.” Id.

I further find that the General Counsel has failed to prove her “preemptive strike” theory 45
in this case as there is no evidence that Mishkin considered any chance that Duane would later
36

JD(SF)-21-16
attempt to engage in future protected concerted activity with other employees especially when no
such discussions ever came up in Duane’s meetings with Keyes on January 6 or Mishkin on
January 8, 2015. As a result, I further find that no evidence was provided that Mishkin’s
decision to discharge Duane on January 8 was motivated in any way by a desire to preempt
future Section 7 activity. Instead, as stated above, Mishkin discharged Duane for his disparaging 5
December 30 posting at a time when Duane was readying to resign from Respondent after being
satisfied with Respondent’s flexibility in granting him 25-30 days of sporadic remote work and 2
months of disability leave and Duane was terminated because he made his angry, impulsive, and
false claim of discrimination against Respondent in his December 30 Glassdoor.com posting
intended by Duane to harm Respondent’s reputation and dissuade prospective employee recruits 10
from coming to Respondent for employment.

I therefore find that the General Counsel failed to prove that Respondent discharged
Duane for unlawful reasons, and Respondent did not violate Section 8(a)(1) of the Act.
15
CONCLUSIONS OF LAW

1. Respondent is an employer engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. Respondent has not engaged in unfair labor practices within the meaning of Section 20
8(a)(1) of the Act, as alleged in the complaint.

On the basis of the foregoing findings of fact, conclusions of law, and the entire record
and pursuant to Section 10(c) of the Act, I issue the following recommended12
25

ORDER

The complaint is dismissed. 30

Dated: Washington D.C. April 28, 2016

35

_____________________
Gerald M. Etchingham,
Administrative Law Judge
12 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings,
conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all
objections to them shall be deemed waived for all purposes.
37