02/20/2026: Fifth Circuit Affirms Trader Joe's Illegal Termination Decision
They even affirmed the application of Thryv remedies on a technicality.
Trader Joe's Company v. NLRB, 24-60367 (Fifth Circuit)
The Fifth Circuit upheld NLRB findings that Trader Joe’s violated the NLRA by issuing a written warning and then suspending and terminating a Houston store employee, Jill Groeschel, in retaliation for protected concerted activity.
Groeschel had spent roughly two years advocating for COVID-19 health and safety measures on behalf of herself and coworkers, raising concerns with management and corporate HR about COVID exposure notifications, mask policies, and the removal of plexiglass barriers. After she filed unfair labor practice charges with the NLRB in February 2022 and solicited coworker participation in the Board’s investigation, a wave of employee complaints against her reached regional management. Trader Joe’s suspended her in late March 2022 and terminated her in April 2022, roughly ten days after she filed a second NLRB charge.
Applying the Wright Line framework, the court found substantial evidence of employer animus at each disciplinary stage. For the written warning, the court pointed to management’s departure from standard disciplinary practice: three of the five contemporaneous Dayforce entries underlying the warning were directly tied to Groeschel’s protected activity, and managers had never previously logged her safety complaints in Dayforce. Upper-level involvement by the regional vice president in what was otherwise a routine employee matter further indicated animus.
For the suspension and termination, the court relied on three independent grounds. First, temporal proximity: Trader Joe’s suspended Groeschel roughly one month after her initial NLRB filing and discharged her ten days after her second. Second, the employee complaints triggering discipline were themselves tainted — most were filed only after coworkers learned of the NLRB charge and feared it might harm their store manager, and many concerned previously tolerated conduct. Third, Trader Joe’s investigation was facially deficient: rather than pursuing specific allegations, management conducted a general “climate survey” that the Board characterized as a fishing expedition, while failing to contact the primary alleged victim of the most serious misconduct charge.
Trader Joe’s affirmative defense under Wright Line — that it would have taken the same actions regardless of protected activity — failed at each step. Its sole comparator for the written warning involved misconduct materially different from Groeschel’s, and it offered only conclusory testimony to justify the suspension.
The court declined to review Trader Joe’s challenge to the Board’s “Thryv remedy” — an expanded make-whole damages award covering all direct and foreseeable pecuniary harms — holding that the company had failed to properly preserve the objection before the Board, which under Section 10(e) of the NLRA operates as a jurisdictional bar. The court acknowledged a circuit split on the Thryv remedy’s validity but found that the split itself precluded a finding that the remedy was “obviously beyond the Board’s authority,” the threshold required for residual appellate jurisdiction.
Judge Oldham dissented, arguing that the Board’s animus findings were not supported by substantial evidence given Trader Joe’s history of accommodating Groeschel’s concerns and the volume of legitimate misconduct complaints. He further contended that the Wright Line test is structurally flawed — having been validated under Chevron deference, which the Supreme Court has since discarded — and that Section 10(e)’s exhaustion requirement is non-jurisdictional, meaning the court should have reached the Thryv remedy question.
Significant Cases Cited
Wright Line, 251 NLRB 1083 (1980): Established the burden-shifting framework for mixed-motive unfair labor practice cases, requiring the Board to show protected activity was a motivating factor before shifting the burden to the employer.
NLRB v. Transportation Management Corp., 462 U.S. 393 (1983): Supreme Court approved the Wright Line framework and affirmed that an employer must prove it would have taken the same action regardless of protected conduct.
Cordua Restaurants, Inc. v. NLRB, 985 F.3d 415 (5th Cir. 2021): Held that the Board may rely on circumstantial evidence to infer discriminatory motive where the employee engaged in protected activity, the employer had knowledge, and the employer harbored animus.
Woelke & Romero Framing, Inc. v. NLRB, 456 U.S. 645 (1982): Supreme Court held that failure to raise an objection before the Board bars judicial review under Section 10(e), which the majority treated as a jurisdictional requirement.
Thryv, Inc., 372 NLRB No. 22 (2022): Board decision establishing the expanded make-whole remedy requiring compensation for all direct and foreseeable pecuniary harms resulting from unlawful employer conduct.