LORI CHAVEZ DEREMER SECRETARY OF LABOR UNITED STATES DEPARTMENT OF LABOR v. AVENGER PRODUCTS LLC KITTRICH CORPORATION (2025)

ORDER

This case comes before the Court on the parties' cross-motions for partial summary judgment and related filings. [Dkts. 18, 20].

BACKGROUND

The Secretary of Labor filed this action on behalf of Keenon Hall, a former employee of Avenger Products, LLC (“Avenger”), contending that Ms. Hall was unlawfully discharged in retaliation for her complaints about workplace odors, i.e., alleged chemical fumes, in violation of section 11(c)(1) of the Occupational Safety and Health Act, 29 U.S.C. § 660(c)(1) (“OSHA”).

I. Factual Background

A. Ms. Hall (“Complainant”)

The Complainant, Ms. Hall, was hired by Avenger in February 2017 as a receptionist. [Dkt. 20-1 – Plaintiff's Statement of Material Facts (“PSMF”), ¶ 18; Dkt. 26-2 -- Defendants' Statement of Additional Material Facts (“DSAMF”), ¶¶ 8, 9]. Ms. Hall worked in the office area for the duration of her employment, and her range of duties included order processing, providing customer service and support, answering telephones, and other administrative assignments. [Dkt. 29-9 – Report of Investigation at 3; Dkt. 18-10 -- Defendants' Statement of Undisputed Material Facts (“DSMF”), ¶ 41; Dkt. 21 – 11-4-24 Deposition of Keenon Hall (“Hall Dep.”), at 61, 70; Vickers 30(b)(6) Dep., at 126-127, 130]. In early March 2020, after a series of workplace complaints, Ms. Hall separated from employment with Avenger, giving rise to the instant action.

B. Defendants

i. Kittrich Corporation

Kittrich Corporation is a consumer goods manufacturer and distributor that sells “a variety of very diverse brands from shelf liner to environmentally friendly insecticides and herbicides.” [PSMF, ¶ 6; Defs. Resp. PSMF, ¶ 6; David Koerner Rule 30(b)(6) Deposition (“Koerner 30(b)(6) Dep.”), at 12].

Avenger is one of several Kittrich businesses.

ii. Avenger Products LLC

On February 3, 2017, Kittrich's owner, Robert Friedland, formed Avenger Products LLC. [PSMF, ¶ 7; Koerner 30(b)(6) Dep., at 13:4–20; 12-19-24 Rule 30(b)(6) Deposition of Avenger & Kittrich, Barry Vickers (“Vickers 30(b)(6) Dep.”), at 20; Exhibit A – Avenger Business Formation]. Avenger is a pesticides manufacturer which primarily manufactures organic pesticides. [DSMF, ¶¶ 1, 3].

iii. Defendants' management personnel 2

During most of the relevant time-period, Ms. Hall reported to Avenger's Operations Manager, Justin Jankauskas. [PSMF, ¶ 22; Hall Dep., at 27; Vickers 30(b)(6) Dep., at 22]. Mr. Jankauskas was a previous owner of the business purchased by Mr. Friedland and subsequently merged into Avenger. Prior to March 6, 2020, Avenger terminated Mr. Jankauskas' employment. [DSMF, ¶ 27; Hall Dep., 66-67 (Mr. Jankauskas left employment at some point between February 25, 2020 and March 6, 2020)].

In 2019 and 2020, other members of management working at the Avenger facility on a daily basis included Bryan Goodwin, Plant/Production Manager, and Dale Horne, a key manufacturing person who helped merge a previously existing business (EcoSMART) into Avenger. [Dkt. 24 – 11/13/24 Deposition of Bryan Goodwin (“Goodwin Dep.”), at 10-11; PSMF, ¶ 52; Hall Dep., at 68; Vickers 30(b)(6) Dep., at 30].

In addition, Suzanna Coronel worked for Kittrich in Human Resources, Mark Scouten worked for Kittrich in IT, and Jesse Macias was Kittrich's Chief Financial Officer. [PSMF, ¶¶ 34-36].

Mr. Macias steered the Avenger facility's response to OSHA issues. [Koerner 30(b)(6) Dep., at 27-28].

iv. Rule 30(b)(6) Representatives

Defendants proffered two Rule 30(b)(6) corporate representatives, Barry Vickers and David Koerner. [Dkt. 17 –1-8-25 Order].

Barry Vickers was a contractor (or consultant) working with Kittrich to assist with business development. [PSMF, ¶ 53; Koerner 30(b)(6) Dep., at 20; Vickers 30(b)(6) Dep., at 14, 18-19].³ Mr. Vickers was considered a “fixer” who would be directed by Kittrich to help handle problems or issues that arose at Kittrich's Georgia facilities, including the Avenger facility. [PSMF, ¶ 54; Koerner 30(b)(6) Dep., at 20; Vickers (30)(b)(6) Dep., at 19]. In 2020, Mr. Vickers worked for Defendants in a plant management role, overseeing the Avenger plant after Mr. Jankauskas left and during the search for a replacement operations manager. [DSMF, ¶ 29].

David Koerner has served as General Counsel for Kittrich since January 2018. Mr. Koerner lives and works in Kittrich's California office. He has never worked in or visited the Gainesville, Georgia Avenger plant.

v. Defendants' Prior OSHA Violations

Between December 2018 and December 2019, Kittrich and/or Avenger received 39 OSHA citations. [Dkt. 20-2 -- 3-14-25 Declaration of OSHA Regional Investigator Linda Creecy (“Creecy Decl.”), ¶¶ 7-12]. As a result of these citations, OSHA issued a total of $254,189 in proposed penalties to Avenger. [PSMF, ¶ 13; Creecy Decl., at ¶ 10.]

According to J. Larry Stine, a declarant for Defendants and a former regional counsel for OSHA, the citations issued included items for the hazard communication standard (sometime referred to the “Right to Know” standard) related to issues with a written hazard communication program and training, see 29 C.F.R. § 1910.1200(a)(2). [Dkt. 27-1 -- 4-17-25 J. Larry Stine Declaration (“Stine Decl.”), ¶¶ 2, 6-7].⁴

None of Defendants' previous OSHA citations were related to chemical hazards exposure to employees. [Stine Decl., ¶¶ 5, 11].

C. Timeline of Workplace Complaints

1. December 2019 -- Facility event Defendants acknowledge as an isolated incident

On or around December 17, 2019, Ms. Hall complained to Mr. Jankauskas about chemical exposure and/or chemical smells or odors. [DSMF, ¶ 17; Pl. Resp. DSMF, ¶ 17; Hall Dep., at 42]. According to the Secretary, Defendants admitted that on December 17, 2019, there were chemical fumes throughout the Avenger facility. [Dkt. 25-11 --- Exhibit B – Avenger OSHA Response (“The [Bi-Dash 2e] sat inside an open tank and open tank overnight and the fumes from the product became strong throughout the facility. On 12/17/19 when the employees arrived the fumes from the product [were] present in the entire facility from front to back.”). [Pl. Resp. DSMF, ¶ 18]. The event was resolved by the next regular workday. [Hall Dep., at 45].

On this occasion, Ms. Hall felt ill and sought medical treatment at the emergency room for what she describes as a “chemical exposure.” [DSMF, ¶ 18; Pl. Resp. DSMF, ¶ 18; Hall Dep., at 42-44; PSMF, ¶ 25; Dkt. 20-3 – 3-14-25 Declaration of Keenon Hall (“First Hall Decl.”), at ¶ 6; Dkt. 20-11 -- Exhibit D – Avenger OSHA Reply].

Avenger asserts that there was no “chemical exposure” but rather a smell resulting from normal production that bothered Ms. Hall and others. [Def. Resp. PSMF, ¶ 25; Koerner 30(b)(6) Dep., at 36]. Avenger claims that no other employees experienced the reaction Ms. Hall reported. [Def. Resp. PSMF, ¶ 28].

The next alleged chemical exposure occurred in February 2020.

2. February 17, 2020 – Facility event Defendants contend was normal production and required no remediation

When Ms. Hall reported to work on February 17, 2020, she smelled chemical fumes that made her sick to her stomach and irritated her eyes. [PSMF, ¶ 24; Hall Dep., at 45, 48; First Hall Decl., ¶ 5; DSMF, ¶ 20; Pl. Resp. DSMF, ¶ 20]. According to Ms. Hall, she vomited and experienced severe nausea, sweating, and dizziness. [Hall Dep., at 48, 99; First Hall Decl., ¶ 6].

Ms. Hall reported her concern to Warehouse Team Lead Nora Reyes and then via email to Mr. Jankauskas and Mr. Goodwin. [PSMF, ¶ 27; Hall Dep., at 49–50; First Hall Decl., ¶¶ 8, 9; DSMF, ¶ 21; Pl. Resp. DSMF, ¶ 21]. Ms. Hall also notified Mr. Jankauskas in person. [PSMF, ¶ 30].

After vomiting a second time, Ms. Hall returned to her desk and sent Mr. Goodwin an email at 7:56 a.m. ET on February 17, 2020, stating, “This smell in the office is making my eyes water and making me sick to my stomach. I told Justin [Jankauskas] and he did not say anything.” [PSMF, ¶ 31; Hall Dep., at 45-46; First Hall Decl., at ¶ 12; Dkt. 20-12 -- Exhibit E – 2-17-20 Email from Ms. Hall to Mr. Goodwin].

Ms. Hall then sent an email to Mr. Jankauskas, copying Mr. Goodwin, at 8:02 a.m. ET on February 17, 2020, stating “As I indicated to you when I saw you, I cannot tolerate the fumes this morning. I tried to call Bryan [Goodwin] to inform him. I also spoke with Nora [Reyes] asking her if she knew what the smell was.” [Dkt. 20-13 -- Exhibit F – 2-17-20 Email String].

Mr. Jankauskas forwarded Ms. Hall's email at 9:05 a.m. ET to Ms. Coronel in Human Resources, Mr. Scouten in IT, CFO Mr. Macias, and Mr. Goodwin, stating:

Keenon stated that she could not stand the smell this morning. We are making EcoSmart and the odor is no worse than it ever is. There are a building full of people that are unaffected by it. The only recommendation that I had for her was to leave. I would not consider this an excused day off of work, but I wanted to verify.

[Exhibit F – 2-17-20 Email String].

After her emails to Mr. Goodwin and Mr. Jankauskas, Ms. Hall was permitted to leave the office for the day. [DSMF, ¶ 22; Hall Dep., at 13-15]. Ms. Hall continued to experience symptoms including headache, dizziness, sweating, frequent urination, severe nausea, impaired taste, and painful, watery eyes. [First Hall Decl., ¶ 14].

According to Defendants, there were no chemical fumes on February 17, 2020, and no other employees experienced a negative reaction. [Def. Resp. PSMF, ¶ 24]. Defendants represent that any odor would have come from organic essential oil ingredients. Mr. Jankauskas opined that Ms. Hall may have sought medical treatment on February 17, 2020 to make the incident appear more serious than it was. [Def. Resp. PSMF, ¶ 24; Dkt. 20-16 – Exhibit I – 2-19-20 Email from Mr. Jankauskas to Mr. Goodwin].

3. February 18, 2020 – Mr. Goodwin submits OSHA Form 301 and Ms. Hall files her first formal OSHA Complaint

The next day, February 18, 2020, Ms. Hall continued to feel ill but returned to the facility to complete her workers' compensation forms. [First Hall Decl., ¶ 15.] While at the office, Ms. Hall met with Mr. Goodwin. [PSMF, ¶ 40; First Hall Decl., ¶ 16.] Ms. Hall complained to Mr. Goodwin about the “chemical” smell and requested that Mr. Goodwin fill out the documents she needed to make a workers' compensation claim. [PSMF, ¶ 41; Hall Dep., at 28–29; First Hall Decl., ¶ 17]. The same day, OSHA received Avenger's notice of alleged safety or health hazards regarding Avenger's worksite. Mr. Goodwin filled out an OSHA Form 301 stating, “When [Ms. Hall] arrived to work[,] she noticed a strong odor in the front office and notified management regarding the fumes” and “[t]he fumes from the Mosquito Fogger product was causing the employee to have watery eyes and sick to her stomach.” [PSMF, ¶ 42; Dkt. 20-14 -- Exhibit G – OSHA's 2-18-20 Form 301 Injuries and Illnesses Incident Report].

Also on February 18, 2020, Ms. Hall filed her first formal complaint with OSHA (“OSHA Complaint”), triggering an OSHA investigation. [Creecy Decl., ¶¶ 4, 5]. In her OSHA Complaint, Ms. Hall alleged a workplace hazard, which she described in pertinent part:

In the front office, employees are exposed to chemicals that are bottled in the warehouse, due to improper ventilation. Some employees had to go to the emergency room after experiencing eyes burning and respiratory distress symptoms. Some of the chemicals include but are not limited to Bifenthrim.

[Exhibit H – Notice of Alleged Safety or Health Hazards].⁵

4. February 19, 2020 – OSHA commences investigation and makes contact with Defendants

OSHA issued a request for a written response from Avenger [DSMF, ¶ 35; Dkt. 26-7 – 2-19-20 Letter from OSHA to Mr. Jankauskas].⁶ OSHA also informed Kittrich of Ms. Hall's complaint. [Dkt. 25-16 -- Exhibit F – 2-19-20 OSHA Letter to Kittrich regarding OSHA Complaint No. 1544394].

Mr. Jankauskas responded at 11:01 a.m. ET, less than 30 minutes later, and copied Mr. Goodwin and Mr. Macias:

The office employee that was complaining about the odor is currently at the Dr[sic] for this. Upon arrival at work on Monday, she stated that the odor from the Mosquito Fogger product was bothering her. I have attached the SDS here as well. This is a product, along with many others in the same organic, essential oil based ingredients, that we manufacture here on a regular basis. I suggested to her that she leave if it was too much, which she did. The employee was only at the office for 10-15 mins. The odors were not overwhelming as myself and a staff of 25 did not have issue. Upon return to work on Tuesday, she asked Bryan Goodwin, my plant manager, to write up a report for the incident. Bryan explained that we don't need to write a report since nobody went to the Dr. She then stated that if that was the case, she wanted to go to the Dr. There is no merit to this incident, all safety precautions have been followed.

[Exhibit I -- Email between Mr. Jankauskas and OSHA].

On March 2, 2020, Avenger provided a written response to OSHA as requested. [DSAMF, ¶ 37].

After informal review of Ms. Hall's February 2020 OSHA Complaint, OSHA elected not to conduct a health and safety inspection or issue a citation. [DSMF, ¶¶ 36-37; DSAMF, ¶¶ 36-38; Dkt. 18-9 – Exhibit H – OSHA Establishment Search Records for Avenger and Kittrich].

5. February 24, 2020 thru March 5, 2020

According to the Secretary, when Ms. Hall arrived at work on February 24, 2020, at 7:30 a.m., she was again confronted by a strong chemical smell. [First Hall Decl., ¶ 19]. Ms. Hall complained to Mr. Goodwin about the “chemical fumes” again and asked for an explanation. [First Hall Decl., ¶¶ 20, 21]. Ms. Hall and Mr. Goodwin discussed how to remedy the problem, and Mr. Goodwin indicated that he would share Ms. Hall's concerns with Mr. Vickers and Mr. Horne. [First Hall Decl., ¶ 23]. Ms. Hall states that she also spoke with Mr. Vickers directly about her safety concerns. [First Hall Decl., ¶ 27].

On February 25, 2020, Mr. Goodwin reportedly told Ms. Hall that Defendants were not going to take any action to address her complaints about the alleged “chemical exposure.” [First Hall Decl., ¶ 28].⁷

Between February 24, 2020 and March 5, 2020, Ms. Hall contacted OSHA on numerous occasions to report her safety concerns about the Avenger facility. [First Hall Decl., ¶ 29].

On March 5, 2020, Ms. Hall spoke with an OSHA representative about her pending complaint after answering an incoming phone call for either Mr. Jankauskas or Mr. Goodwin. [First Hall Decl., ¶ 30 (Ms. Hall spoke with OSHA Industrial Hygienist Madeline Malone-Thompson)].

6. March 6, 2020 Meeting

On March 6, 2020, Ms. Hall met with Mr. Vickers and Dale Horne. [DSMF, ¶ 43]. Following this meeting, Ms. Hall separated from Avenger. As discussed in greater detail below, questions of fact exist concerning what led to the March 6, 2020 encounter, what was said by Mr. Vickers and/or Mr. Horne and Ms. Hall (if anything), as well as what transpired afterwards.

There is evidence that Mr. Goodwin discussed Ms. Hall's possible resignation in individual and separate meetings with Mr. Vickers and Ms. Hall. [DSMF, ¶ 42; Vickers 30(b)(6) Dep., 105-106; Hall Dep., 57; 78]. According to Ms. Hall, Mr. Goodwin approached her to ask if she would separate from the company if she was offered two weeks' pay. [Pl. Resp. DSMF, ¶ 42; Hall Dep., at 57]. According to Defendants, Ms. Hall approached Mr. Vickers earlier in the week to ask whether or not she would be entitled to “get [her] vacation days” if she resigned. [Vickers 30(b)(6) Dep., at 106].

7. March 6, 2020 – Ms. Hall's second OSHA Complaint

Ms. Hall filed a second formal complaint with OSHA alleging that Defendants terminated her employment on March 6, 2020, because she reported chemical fumes were going into the office area to OSHA. [Dkt. 20-22 -- Exhibit O – Whistleblower Screening Form].

After investigating Ms. Hall's March 6, 2020 Complaint, OSHA determined that Kittrich and Avenger violated § 11(c)(1) of the Act by terminating Ms. Hall because of her exercise of rights protected under the Act.⁸ [Creecy Decl., ¶ 17].

LEGAL STANDARD

Federal Rule of Civil Procedure 56 provides, “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a) (amended 2010). Rule 56(a) “mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 106 S. Ct. 2548, 2552 (1986). The standard for granting summary judgment mirrors the directed verdict standard under Rule 50(a), which requires the court to grant a directed verdict where there can be but one reasonable conclusion. See Anderson v. Liberty Lobby, Inc., 106 S. Ct. 2505, 2511 (1986).

The movant bears the initial burden of asserting the basis of his motion, and that burden is a light one. See Celotex, 106 S. Ct. at 2553. The movant is not required to negate his opponent's claim. See id. Rather, the movant may discharge this burden merely by “ ‘showing’ - that is, pointing out to the district court - that there is an absence of evidence to support the nonmoving party's case.” Id. at 2554.

In resolving a motion for summary judgment, the court must view all evidence and draw all reasonable inferences in the light most favorable to the non-moving party. Patton v. Triad Guar. Ins. Corp., 277 F.3d 1294, 1296 (11th Cir. 2002); accord Blue v. Lopez, 901 F.3d 1352, 1357 (11th Cir. 2018). But the court is bound only to draw those inferences that are reasonable. “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 106 S. Ct. 1348, 1356 (1986)). “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249-50 (internal citations omitted); see also Matsushita, 106 S. Ct. at 1356 (once the moving party has met its burden under Rule 56(a), the nonmoving party “must do more than simply show there is some metaphysical doubt as to the material facts”).

“Finally, the filing of cross-motions for summary judgment does not give rise to any presumption that no genuine issues of material fact exist.” 3D Med. Imaging Sys., LLC v. Visage Imaging, Inc., 228 F. Supp. 3d 1331, 1336 (N.D. Ga. 2017). The Rule 56 standard is applied to cross-motions for summary judgment just as if only one party had moved for summary judgment and “simply requires a determination of whether either of the parties deserves judgment as a matter of law on the facts that are not disputed.” Yager v. Lockheed Martin Corp., 2016 WL 319858, at *3 (N.D. Ga. January 26, 2016) (citation and internal quotation marks omitted); and see Shaw Constructors v. ICF Kaiser Eng'rs, Inc., 395 F.3d 533, 538–39 (5th Cir. 2004) (“Cross-motions must be considered separately, as each movant bears the burden of establishing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law.”) (citation omitted).

DISCUSSION

The parties each move for partial summary judgment.

The Secretary seeks partial summary judgment on liability and the amount of the back pay award she asserts Ms. Hall is entitled to recover from Defendants. The Secretary requests an evidentiary hearing on the question of compensatory and punitive damages. Defendants deny the Secretary's claim of retaliatory discharge and assert that numerous genuine issues of material fact preclude the Secretary's request for summary judgment as to liability.

Avenger and Kittrich also seek an order granting partial summary judgment on the unavailability of compensatory and punitive damages.

II. Legal Framework

A. Section 11(c) Retaliation

Referred to as Section 11(c), OSHA provides that:

No person shall discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act ․ or because of the exercise by such employee on behalf of himself or others of any right afforded by this chapter.

29 U.S.C. § 660(c)(1).

Specifically, Section 11(c) “prohibits [employers] from discriminating against an employee for reporting a work-related fatality, injury, or illness” and protects an employee “who files a safety and health complaint, . . or otherwise exercises any rights afforded by the [Act].” 29 C.F.R. § 1904.36; Walsh v. United States Postal Serv., 2022 WL 973739, at *8 (W.D. Pa. Mar. 31, 2022). To that end, OSHA mandates that employers “establish a reasonable procedure for employees to report work-related injuries and illnesses.” 29 C.F.R. § 1904.35(b)(1)(i). A “procedure is not reasonable if it would deter or discourage a reasonable employee from accurately reporting workplace injury or illness.” 29 C.F.R. § 1904.35(b)(1)(i).

Section 11(c) serves a public purpose, namely, to promote public policy in the prosecution of discrimination or retaliation of an aggrieved employee. Su v. United States Postal Serv., 730 F. Supp. 3d 1120, 1124–25 (D. Or. 2024).

Underscoring its purpose, “Congress has vested the exclusive prosecutorial responsibility [for enforcing the Act] in the Secretary of Labor.” Marshall v. Occupational Safety & Health Review Comm'n, 635 F.2d 544, 550 (6th Cir. 1980); accord Donovan v. Square D Co., 709 F.2d 335, 338–39 (5th Cir. 1983) (discussing the “public nature” of OSHA's “individual remedies”) (internal citation omitted).

B. Section 11(c) claims apply Title VII law

Section 11(c) claims alleging wrongful discharge in retaliation for exercising rights afforded under OSHA are analyzed under the same legal framework as Title VII's anti-retaliatory provision. See Walsh, 2022 WL 973739, at *11 (“numerous courts have held that Section 11(c) claims follow the format for claims under Title VII's anti-retaliation provision, § 2000e-3(a)”).

Under both statutory schemes, retaliation must be proved by “but-for causation.” Univ. of Texas Southwestern Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2528, 2533 (2013); see also 29 C.F.R. § 1977.6(b) (“If the discharge or other adverse action would not have taken place ‘but for’ engagement in protected activity, section 11(c) has been violated.”). “[B]ut-for” causation means that “a plaintiff must prove that had she not [engaged in the protected conduct], she would not have been fired.” Nassar, 133 S. Ct. at 2533. However, the employee's protected activity “need not be the sole or primary consideration behind discharge or other adverse action.” § 1977.6(b).

The Eleventh Circuit sanctions application of the burden-shifting framework set out in McDonnell Douglas Corp. v. Green, 93 S. Ct. 1817 (1973) (“McDonnell Douglas”). Chao v. Blue Bird Corp., 2009 WL 485471, at *3 (M.D. Ga. Feb. 26, 2009), aff'd sub nom. Solis v. Blue Bird Corp., 404 F. App'x 412, 413 (11th Cir. 2010); Walsh v. AETC Inc., 2024 WL 1281337, at *6 (N.D. Ga. Jan. 30, 2024) (citations omitted) (Rule 12(b)(6) posture). Under McDonnell Douglas, “the plaintiff must present sufficient evidence to satisfy the elements of her prima facie case. If a prima facie case is established, the burden shifts to the defendant to articulate a legitimate, non[-retaliatory] reason for the employment action. If articulated, the plaintiff must show that the defendant's reason was pretextual in order to prevail.” Blue Bird Corp., 2009 WL 485471, at *3 (internal citations omitted).

“The McDonnell Douglas framework is simply one ‘tool’ that helps an employee prove retaliation with circumstantial evidence.” Berry v. Crestwood Healthcare LP, 84 F.4th 1300, 1310 (11th Cir. 2023) (quoting Comcast Corp. v. Nat'l Ass'n of Afr. Am.-Owned Media, 589 U.S. ––––, 140 S. Ct. 1009, 1019, 206 L.Ed.2d 356 (2020)). “Without relying on the McDonnell Douglas framework, an employee may prove retaliation with any circumstantial evidence that creates a reasonable inference of retaliatory intent.” Id. (describing alternative evidentiary approach as the “convincing-mosaic framework”). The “convincing mosaic” framework or approach “jump[s] directly to the ultimate question of liability and decid[es] whether the moving party is entitled to judgment at that stage of the case.” Id. (citation and internal quotation marks omitted). The “McDonnell Douglas framework and the convincing mosaic approach are two paths to the same destination.” McCreight v. AuburnBank, 117 F.4th 1322, 1334–35 (11th Cir. 2024) (citation omitted).

Throughout, the burden of persuasion and “[t]he ultimate burden of proving by a preponderance of the evidence that the reason provided by the employer is a pretext for prohibited, retaliatory conduct remains [with] the plaintiff.” Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001) (citation omitted).

No matter how a plaintiff presents a circumstantial evidence case alleging retaliation, “[t]he legal standard—and the question for the court at summary judgment—is only whether the evidence permits a reasonable factfinder to find that the employer retaliated against the employee.” Berry, 84 F.4th at 1311; accord McCreight, 117 F.4th at 1334–35 (citation omitted).

With these principles in mind, the Court now turns to the parties' respective motions.

III. Plaintiff's MPSJ [Dkt. 20]

As the party seeking summary judgment on liability, the Secretary carries the burden of persuasion to demonstrate that, when the evidence is viewed in the light most favorable to Defendants, there are no genuine issues of material fact, and that no reasonable jury could find in Defendants' favor. See Brown v. Alabama Dep't of Transp., 597 F.3d 1160, 1173 (11th Cir. 2010) (“judgment as a matter of law is appropriate only if “the facts and inferences point [so] overwhelmingly in favor of one party ․ that reasonable people could not arrive at a contrary verdict”) (citation omitted).

For the reasons set forth below, the Court finds that summary judgment disposition is not appropriate given the existence of genuine issues of material fact essential to a finding of retaliation and Section 11(c) liability.

In opposing the Secretary's MPSJ as to liability, Defendants identify at least two dispositive facts that are in dispute: (1) whether Avenger terminated Ms. Hall or simply accepted her resignation; and (2) whether Mr. Vickers, Defendants' alleged decisionmaker, knew about Ms. Hall's protected conduct.

Because the Secretary relies on the McDonnell Douglas burden shifting framework, the Court does the same. Discussion of the prima facie elements illustrate the role of the fact finder and the reason(s) the Court cannot find in the Secretary's favor on liability as a matter of law.

A. Prima Facie Case

To establish a prima facie case, the Secretary must show by a preponderance of the evidence the following three things: (1) that Ms. Hall engaged in protected activity; (2) that Avenger and/or Kittrich took adverse action against Ms. Hall; and (3) that a causal connection exists between the protected activity and the adverse action. Cotton v. Cracker Barrel Old Country Store, Inc., 434 F.3d 1227, 1233 (11th Cir. 2006). “Once the prima facie case is established, it creates a presumption that the adverse action was the product of an intent to retaliate.” Gogel v. Kia Motors Mfg. of Georgia, Inc., 967 F.3d 1121, 1135 (11th Cir. 2020) (citation and internal quotation marks omitted).

Here, genuine issues of material fact that inform the adverse action element require denial of the Secretary's motion.

1. Protected Activity

Defendants concede that Ms. Hall engaged in protected activity.

As detailed, supra, between December 2019 and February 2020, Ms. Hall spoke with several members of Defendants' management team about her concerns with workplace fumes and incidents of related illnesses / injuries. See, generally, 29 C.F.R. § 1977.6 (defining scope of complaints coming within the Act, including complaints made in good faith to employers). Ms. Hall filed two worker's compensation claims, both alleging symptoms related to chemical smell or odor in the workplace including nausea, vomiting, and eye irritation. And, on February 18, 2020, Ms. Hall filed her first OSHA Complaint.

The protected activity element of the prima facie case is met.

2. Adverse Action

“[A]dverse action” is a legal conclusion identifying an action that effects “a serious and material change in the terms, conditions, or privileges of employment.” Durr v. Piggly Wiggly Alabama Distrib. Co., Inc., 2025 WL 1643601, at *5 (N.D. Ala. June 9, 2025). Termination of employment, which is alleged here, constitutes adverse action. Blue Bird Corp., 2009 WL 485471, at *4; Burlington N. & Santa Fe Ry. Co. v. White, 126 S. Ct. 2405, 2415 (2006) (citations and internal quotation marks omitted) (“a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, [or that] ․ it well might have dissuaded a reasonable worker from making or supporting a [health or safety complaint]”).

The Secretary contends that Ms. Hall was fired on March 6, 2020 and that “adverse action” cannot be disputed.

Defendants contend that Ms. Hall was not terminated on March 6, 2020 and, therefore, not subject to adverse action.

As discussed in greater detail below, the underlying factual issues surrounding Ms. Hall's separation inform this issue and cannot be decided as a matter of law. Indeed, the parties present different versions of the events leading to Ms. Hall's separation from employment, including who initiated discussion of Ms. Hall's departure.

The Court begins with two preliminary matters raised by Defendants.

a. Kittrich is a properly named defendant

As an initial matter, Defendants assert in their opposition brief that Kittrich should not be in the case; that there is no legal basis to find Kittrich liable. As relevant here, Defendants appear to assert that Kittrich was not Ms. Hall's “employer” and, therefore, could not have taken adverse action. Significantly, Defendants did not move to dismiss Kittrich under Rule 12 and did not move for partial summary judgment on this issue. For this reason alone, the Court need not address whether Kittrich is properly named as a defendant at summary judgment.

In addition, a defendant in an § 11(c) action need not be an employer. See, e.g., Donovan v. Diplomat Envelope Corp., 587 F. Supp. 1417, 1425 (E.D.N.Y. 1984). And, Defendants have admitted that Kittrich is a “person” as defined by § 11(c).⁹ Further, the Secretary points to evidence that Kittrich shared resources with Avenger, including human resources and legal support. [PSMF, ¶ 8; Koerner 30(b)(6) Dep., at 15-16 (testifying that Kittrich is privately held with no shareholders or investors and that the owner can direct labor or direct resources however he chooses); 25-26]. Kittrich was the entity paying Mr. Goodwin and other members of Defendants' shared management team. [Goodwin Dep., at 9]. Rule 30(b)(6) witness Mr. Koerner testified that, because of the common ownership, Avenger personnel were expected to use Kittrich personnel as an additional resource for matters that warranted that level of attention or were outside of the norm. [Koerner 30(b)(6) Dep., at 16, 25-27]. In addition, Mr. Vickers, also a Rule 30(b)(6) representative for both Defendants, and the individual present with Ms. Hall on March 6, 2020, was a consultant for Kittrich. [Dkt. 29 -- Pl. Reply, at 3 n.1]. Kittrich is properly in the case.

b. Defendants did not judicially admit adverse action

The Secretary asserts that Defendants judicially admitted that they terminated Ms. Hall when answering Paragraph 57 of the Complaint. [Pl. Reply at 3-4 (citing Best Canvas Prods. & Supplies, Inc. v. Ploof Truck Lines, Inc., 713 F.2d 618, 621 (11th Cir. 1983); see also Rahn v. Olens, 2015 WL 4717448, at *3 (N.D. Ga. Aug. 7, 2015) (citation omitted)).¹⁰

Paragraph 57 of the Complaint alleges:

Vickers presented Hall with termination paperwork to sign and informed her of her last payment date. Hall gathered her belongings and departed.

[Dkt. 1 – Compl., ¶ 57].

Defendants' Answer to Paragraph 57 reads:

Defendants deny the allegations in Paragraph 57 of the Complaint. Ms. Hall requested information related to her possible resignation. Mr. Vickers with Mr. Horne as a witness met Ms. Hall to provide the information Ms. Hall requested related to the possibility of her resignation. Ms. Hall did not say anything, walked out of the meeting and left the premises. Defendants did not intend to terminate Ms. Hall at that time and did not terminate her employment at that time. Ms. Hall did not return to work after that day and was later terminated for abandonment of her job.

[Dkt. 7 -- Answer, ¶ 57 (emphases added)].

The Court finds that Defendants did not judicially admit “adverse action.” As a factual matter, Defendants' Answer does not concede adverse action. Rather, Defendants' Answer states that Avenger did not intend to terminate Hall on March 6 and that she was “later terminated for abandonment of her job” after failing to return to work. [Id.].

In addition, “[a]n admission in judicio applies only to the admission of fact[.]” Grimes v. Freshpoint Atlanta, Inc., 2021 WL 2548705, at *4 (N.D. Ga. Apr. 29, 2021). “The rule pertaining to admissions in pleadings or other admissions in judicio are not applicable where the admission is merely the opinion on the part of the party making it as to the legal effect.” Id. Whether an “adverse action” occurred for purposes of the prima facie case is a legal conclusion or a mixed question of law and fact – not a factual admission. See Telfair v. Fed. Exp. Corp., 934 F. Supp. 2d 1368, 1383 (S.D. Fla. 2013), aff'd, 567 F. App'x 681 (11th Cir. 2014) (stating that “adverse action” element of Title VII discrimination claim alleging failure to accommodate religion presents “mixed question of fact and law”); Durr, 2025 WL 1643601, at *5 (“adverse action” is a legal conclusion). “[W]hile factual admissions in pleadings that are not withdrawn are treated as admissions in judicio, legal conclusions are not.” Grimes, 2021 WL 2548705, at *4. Because there is no judicial admission as to this element, the Secretary still bears the burden to prove adverse action.

c. The circumstances surrounding Ms. Hall's separation from employment present genuine issues of material fact

The Court agrees with Defendants concerning the existence of genuine issues of material fact. As stated previously, this factual issue is sufficient to deny the Secretary's summary judgment motion.

Ms. Hall states that she was approached by Mr. Vickers and Mr. Horne, presented with a Separation Agreement and Mutual General Release, and then advised by Mr. Vickers that it was time for her to “exit the company[,]” to gather her belongings and leave. [First Hall Decl., ¶¶ 32, 33, 36; Hall Dep., at 74-76].

Defendants represent that it was not their intent to fire Ms. Hall March 6, 2020. According to Defendants, the March 6 encounter was precipitated by Ms. Hall approaching Mr. Vickers earlier in the week and asking whether or not she would be entitled to “get [her] vacation days” if she resigned. [Vickers 30(b)(6) Dep., at 106]. Mr. Vickers described his conversation with Ms. Hall as follows:

A: She [Ms. Hall] leaned against the wall as probably as far from me as that second door over there which is 12 feet and said, “Can you answer me a question?” I said, “I hope so. What -- what can I do for you?” Which -- which was no -- that conversation was no different than any other one that I had with her. It was just, you know, “How can I help you?” “If I resign, do I get my vacation days that I've earned?” And not knowing how that group was set up, I said, “I don't know, but I can find out for you.” She said, “If you would, that'd be great.”

Q: Okay. Did you ask anybody about that?

A: Flipped it, turned it to the HR guy. Stopped whatever I was doing, sent that person an e-mail. “Hey. Here's what the question was. Here's

-- here's what I need to know.”

Q: Okay. Do you know what led to that conversation of her –

A: I have no clue.

[Id.]¹¹

Defendants contend that Ms. Hall abandoned her position after the March 6, discussion with Mr. Vickers and Mr. Horne. [Vickers 30(b)(6) Dep., at 36 (testifying that Ms. Hall quit); 58 (testifying that Ms. Hall asked him earlier in the week: “If I resign, do I get paid my earned vacation time?”)]. According to Mr. Vickers, Ms. Hall walked out of the office without saying a word after being presented with the information concerning paid vacation. [Id., at 122-23]. [Vickers 30(b)(6) Dep., at 130 (denying assertion that Ms. Hall's position was being terminated)]. Mr. Koerner testified on Defendants' behalf that Mr. Vickers and Mr. Horne “were attempting to negotiate a mutual separation” and that the decision would be left to Ms. Hall “to agree or not agree.” [Koerner 30(b)(6) Dep., at 83 (CM/ECF pagination)]. Avenger contends it processed Ms. Hall's separation from employment as a termination based upon Hall's abandonment and only after Avenger could not reach Ms. Hall for several days. [Vickers 30(b)(6) Dep., at 125-26 (Kittrich considers between 3 and 7 absences as a “voluntary quit”)]. Defendants deny any correlation between these events and Ms. Hall's complaints. [Koerner 30(b)(6) Dep., at 95].

Defendants argue that “the inquiry as to whether actual termination has occurred involves analysis of the employer's intent.” Thomas v. Dillard Dept. Stores, Inc., 116 F.3d 1432, 1434 (11th Cir. 1997) (citations omitted); see also Payne v. Crane Co., 560 F.2d 198, 199 (5th Cir. 1977) (in age discrimination case, finding that termination occurs when employer “by acts or words, shows a clear intention to dispense with the services of an employee”). Determining whether an actual termination has occurred is a fact-specific inquiry that takes into account “the particular circumstances of the controverted job action.” Id. (citations omitted). Relevant circumstances include “the words used by the employer and the label for the job action.” Id. (citation omitted). However, “the lack of specific words is not dispositive.” Id. (citation omitted); accord EEOC v. Service News Co., 898 F.2d 958, 962 (4th Cir. 1990) (“No specific words need be present to support a finding of actual discharge.”).¹²

The Court finds Thomas instructive. In Thomas, the Eleventh Circuit found that reasonable minds could differ as to whether plaintiff was actually terminated and that the trial court erred in finding that an “express termination” was necessary for plaintiff to prevail. 116 F.3d at 1435. In Thomas, the plaintiff-employee and decisionmaker for the employer met in person. Id. at 1436. The plaintiff was reportedly told that she was not going to be the area sales manager any longer. Id. There was conflicting evidence presented concerning the possibility of plaintiff taking an alternative position, how that possibility was presented by the decisionmaker, and how the meeting ended. Id. The decisionmaker testified that he remembered telling plaintiff he did not really have another position for her. Id. The plaintiff testified that the decisionmaker did not ask her to make an immediate decision about an alternative position but that she was instructed to go to her office, get her keys and purse, and go home. Id. The decisionmaker testified that he told plaintiff to “go home, and let me know what you would like to do on Monday.” Id. The Thomas plaintiff was convinced that she was being fired and that the offer to place her in a different position was insincere. Evidence was presented that the decisionmaker told other employees immediately after the meeting that plaintiff was “no longer with the company.” Id. at 1437. The plaintiff returned ten days later to return her keys and identification badge. Id. at 1436. The Eleventh Circuit held that it was error to grant summary judgment in favor of the defendant-employer and reversed and remanded the case to the trial court. Id. at 1437.

As in Thomas, viewing the evidence in the light most favorable to Defendants, a jury could reasonably conclude that Avenger did not actually terminate Ms. Hall until she failed to return to work after the March 6, 2020 meeting. Although the Secretary contends “the record is devoid of evidence” to support Defendants' theory, Mr. Vickers' testimony as one of Defendants' Rule 30(b)(6) representatives directly contradicts Ms. Hall's description of precipitating events – creating a classic “he said, she said” credibility question. See, e.g., Dkt. 26-15 (U.S. Postal Serv., 2020 OSAHRC LEXIS 49; 2020 OSHC (BNA) 38) (reversing and remanding case to administrative law judge for further proceedings and specifically for purpose of resolving credibility issues central to allegations supporting citation issued by Secretary). In a case such as this, when the factfinder is asked “to parse conflicting versions of the truth, it is the jury's function—not the court's—to choose between these versions, and judgment as a matter of law is inappropriate.” Walsh v. Tara Constr., Inc., 2023 WL 3996919, at *4 (D. Mass. June 14, 2023) (quoting Trainor v. HEI Hospitality, LLC, 699 F.3d 19, 29 (1st Cir. 2012) (internal quotation marks omitted)). In sum, whether Ms. Hall was terminated on March 6, 2020 or at a later date due to her own decision to not return or abandon her position is a question for the jury.

Of course, if a jury determines that Ms. Hall abandoned her employment, the analysis ends and Defendants prevail. If the Secretary fails to establish that Ms. Hall suffered an adverse employment action, she “will be unable to prove that [Ms. Hall] was unlawfully discriminated against.” Tynes v. Fla. Dep't of Juv. Just., 88 F.4th 939, 945–46 (11th Cir. 2023) (discussing relationship between prima facie case and ultimate burden on plaintiff to prove elements of retaliation claim) (citation omitted), cert. denied, 145 S. Ct. 154 (2024). For purposes of summary judgment, however, the Court presumes that Ms. Hall was subject to adverse action and next considers whether there is sufficient evidence of a causal connection. See, e.g., Berry, 84 F.4th at 1308 (“We assume without deciding that Berry established a prima facie case of retaliation and consider whether she presented evidence of pretext.”); Pennington, 261 F.3d at 1266 (questioning adverse action but assuming plaintiff established a prima facie case where defendant-employer's legitimate, non-retaliatory reasons for challenged employment decision were dispositive).

3. Causal Connection

“For purposes of a prima facie case of retaliation, ․ a plaintiff need only proffer sufficient evidence to raise the inference that the protected activity was the likely reason for the adverse employment action, not the but-for reason.” Walsh, 2022 WL 973739, at *12. “To establish a causal connection, a plaintiff must show that (a) the decision-makers were aware of the protected conduct; and (b) the protected activity and the adverse employment action were not wholly unrelated.” Blue Bird Corp., 2009 WL 485471, at *4 (citation omitted).

Assuming knowledge, the close temporal proximity satisfies the causal link element for the prima facie case.

a. Decisionmaker's Knowledge

There is ample evidence that members of Defendants' management team, namely, Mr. Jankauskas, Mr. Goodwin, and/or Mr. Horne, knew or at least strongly suspected that Ms. Hall was the OSHA Complainant following the February 2020 alleged chemical exposure event. The problem for the Secretary, however, is that the evidence does not point to either of these three individuals as the decisionmaker.¹³ Moreover, Defendants' Rule 30(b)(6) evidence is conflicting.

Mr. Vickers and Mr. Horne were the only individuals associated with Avenger and/or Kittrich present during the March 6, 2020 meeting with Ms. Hall. Mr. Vickers testified that he asked Mr. Horne to be present as a witness (and a W-2 employee) in case Ms. Hall decided to resign. [Vickers 30(b)(6) Dep., at 121].¹⁴

Mr. Vickers denied that he had the ability to act independently to fire Ms. Hall on March 6, 2020.¹⁵ [Vickers 30(b)(6) Dep., at 129 (denying that he told Ms. Hall it was time for her to leave the company; denying being instructed or authorized to fire Ms. Hall)]. Also testifying as a corporate representative, Mr. Koerner testified that Mr. Vickers was authorized to hire and fire employees. [PSMF, ¶ 55; Koerner 30(b)(6) Dep., at 80].

The Court finds there is sufficient evidence from which a reasonable jury could determine that Mr. Vickers was a (potential) decisionmaker under the Secretary's theory of the case. As a result, the Court considers the evidence concerning Mr. Vickers' knowledge in evaluating what Defendants knew when.

According to Defendants, they did not definitively attribute the February 18, 2020 OSHA Complaint to Ms. Hall until after she ceased to be employed by Avenger. [Goodwin Dep., at 43-44; Koerner 30(b)(6) Dep., at 97].

Whether Mr. Vickers was aware of Ms. Hall's February 18, 2020 OSHA Complaint and her other internal complaints is contested. Mr. Vickers testified that he was unaware of Ms. Hall's OSHA Complaint until he was asked by either Mr. Goodwin or Mr. Koerner (or both) to be deposed and defend the whistleblower claim. [Vickers 30(b)(6) Dep., at 77-78].

As of the end of 2019, Mr. Vickers was only present in the Avenger facility intermittently. [DSMF, ¶ 30, 40; Vickers 30(b)(6) Dep., at 26; Hall Dep., at 60, 68-69]. After Mr. Jankauskas was fired (early 2020), Mr. Vickers was on site in the Avenger facility on a daily basis for an approximate 100-day stint. [Vickers 30(b)(6) Dep., at 21]. Mr. Vickers testified that he did not remember ever having any conversations with Ms. Hall about chemical fumes. He testified that he never had occasion to talk about “chemical fumes” with Mr. Jankauskas, Mr. Goodwin, or Mr. Macias. [Vickers 30(b)(6) Dep., at 62]. Mr. Vickers testified that his only discussion about “chemical fumes” was with Mr. Horne and was limited to making sure that the building had cross ventilation. [Id., at 62-63].

Mr. Vickers denied ever seeing the February 17, 2020 email from Mr. Jankauskas and testified that Mr. Goodwin never discussed Ms. Hall being sick with him. [Id., at 65]. He also testified that he was likely not present in the Avenger plant on February 17 and that no one ever discussed the email or events leading up to the email with him. [Id., at 69; Vickers 30(b)(6) Dep., Exhibits 1, 2].

Ms. Creecy's investigation of the December 2019 and February 2020 complaints corroborates Mr. Vickers' testimony and did not reveal any involvement by Mr. Vickers. [10-11-24 Creecy Dep., at 22, 26 (“I didn't find where [Mr. Vickers] knew of -- of the allegation.”)].

According to Ms. Hall, however, she spoke to Mr. Vickers directly regarding her safety concerns related to the recent incidents of chemical exposures in the Avenger facility. [Pl. Resp. DSMF, ¶ 32; Hall Dep., at 71; First Hall Decl., ¶ 27]. Yet, Ms. Hall did not indicate in her correspondence to OSHA that Mr. Vickers was knowledgeable about her complaints. [DSMF, ¶ 32; Hall Dep., at 72].¹⁶

There is evidence that Mr. Jankauskas posted information concerning the OSHA Complaint in the Avenger facility as required by law following the February 17, 2024 event. [Koerner 30(b)(6) Dep., at 71; Dkt. 29-19 – Certificate of Posting, OSHA Notification of Alleged Hazard(s)]. The Certificate of Posting reflects that the OSHA Notice was posted in the Avenger facility on February 24, 2020 “for a minimum of ten (10) working days or until any hazardous conditions found [were] corrected.” [Dkt. 29-19].¹⁷

Viewing the evidence in the light most favorable to Defendants, Ms. Hall's testimony that she shared her complaints and safety concerns directly with Mr. Vickers prior to March 6, 2020, combined with Defendants' Certificate of Posting dated February 24, 2020 is sufficient evidence from which a jury could find that Defendants' decisionmaker (Mr. Vickers) had knowledge of Ms. Hall's February 2020 OSHA Complaint.

b. Relationship between protected activity and alleged adverse action

To establish a causal connection, the Secretary relies upon evidence she contends shows (1) a relationship between the protected activity and adverse action, i.e., the temporal proximity, and (2) statements allegedly made by Defendants reflecting a discriminatory or retaliatory animus towards Ms. Hall.

The Court addresses the alleged retaliatory statements in connection with the Secretary's other pretext arguments.¹⁸

1. Temporal proximity

“Very close temporal proximity between the employee's protected conduct and the adverse employment action is sufficient circumstantial evidence to raise an inference of causation.” Blue Bird Corp., 2009 WL 485471, at *4 (citing Clark v. Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273, 121 S. Ct. 1508, 149 L.Ed.2d 509 (2001); and Higdon v. Jackson, 393 F.3d 1211, 1220 (11th Cir. 2004)).

Here, Ms. Hall's initial OSHA Complaint was February 18, 2020. The same day, OSHA made contact with Avenger by phone to discuss the alleged workplace hazard. On February 19, 2020, OSHA followed up with a letter to Jankauskus requesting a written response by February 26, 2020. The March 6, 2020 meeting was 18 days after the filing of Ms. Hall's OSHA complaint and after OSHA made contact with Avenger by phone regarding the complaint. Temporal proximity between these events is “very close[.]” Entrekin v. City of Panama City Fla., 376 F. App'x 987, 997 (11th Cir. 2010) (quoting Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007)) (causal link established between termination and filing of lawsuit based on “very close” proximity where termination occurred approximately two weeks after protected conduct).

Defendants argue that Ms. Hall's pattern of complaints dating back to 2017/2018 cuts against the Secretary's claim of retaliatory animus and “temporal proximity between the alleged protected activity of complaining about smells” and the alleged adverse action.¹⁹ The Secretary asserts that these earlier incidents are unrelated. Defendants on the other hand contend that they continued to employ Ms. Hall for two to three years without retaliation notwithstanding her prior smell-related complaints and that the lack of retaliation in response to the previous complaints undermines the Secretary's current theory of retaliatory discharge. Both are right. Still, the undersigned questions how probative these earlier incidents are, particularly given that they are remote in time and given the absence of evidence that Ms. Hall became ill and/or that Ms. Hall continued to press her 2017/2018 complaints with management.

Notwithstanding Ms. Hall's previous complaints, the close temporal proximity between her protected activity (i.e., formal OSHA Complaint dated February 18, 2020) and her separation from employment (on or around March 6, 2020) is sufficient in and of itself to satisfy the third element of the Secretary's prima facie case.

In conclusion, presuming the Secretary can show adverse action, the Secretary will have met her burden to establish a prima facie case of retaliatory discharge in violation of Section 11(c).

2. Legitimate, Non-Retaliatory Reason for Adverse Action

Once a plaintiff has established a prima facie case, “the burden of production is shifted to the employer to articulate a legitimate, non[ ]discriminatory reason for the adverse employment action.” DeLaughter v. Verizon Commc'ns, Inc., 2024 WL 4956730, at *13 (M.D. Fla. Dec. 3, 2024) (quoting Sims v. MVM, Inc., 704 F.3d 1327, 1333 (11th Cir. 2013)); Pennington, 261 F.3d at 1266. The employer's burden is “exceedingly light.” DeLaughter, 2024 WL 4956730, at *13 (citations omitted).

Indeed, “[a]n employee's engagement in activities protected by the Act does not automatically render him immune from discharge or discipline for legitimate reasons, or from adverse action dictated by non-prohibited considerations.” 29 C.F.R. § 1977.6(a); and see NLRB v. Dixie Motor Coach Corp., 128 F. 2d 201 (5th Cir. 1942).

Defendants assert that Ms. Hall was not retaliated against and that Avenger had legitimate, non-retaliatory reasons to ultimately terminate Ms. Hall's employment. As discussed, supra, Defendants assert that Ms. Hall abandoned her position, and that Ms. Hall was only terminated after she failed to return to work following the March 6 meeting with Mr. Vickers and Mr. Horne.

Defendants also assert that Ms. Hall's job performance was less than satisfactory.

a. Abandonment

As discussed, Defendants contend that Ms. Hall walked out of the office on March 6, 2020 after being presented with information she requested concerning paid vacation. [Vickers 30(b)(6) Dep., at 122-23]. Defendants rely on the testimony of Mr. Vickers. As already stated, genuine issues of material fact exist concerning this issue.

b. Poor performance

Defendants also contend that Ms. Hall's overall job performance justified their actions in that there were instances where supervisors believed that Ms. Hall did not meet expectations (i.e., did not do her job). The Secretary contends that Ms. Hall was considered a “good” employee before she voiced complaints about chemical smells and odors. Ms. Hall claims that, prior to February 17, 2020, she had a “good working relationship” with Mr. Jankauskas. [First Hall Decl., ¶ 26]. According to Ms. Hall, she was never made aware of any performance-related concerns while employed by Avenger or Kittrich and never counseled or disciplined for insubordination. [First Hall Decl., ¶¶ 45, 46].

Mr. Vickers was asked directly about Ms. Hall's performance and answered as follows:

Q: And generally speaking, was she good at her job?

A: Yes. Good enough that when she left, I -- as soon as I knew that, “Okay, she apparently has voluntarily quit,” that I could refill that position. That was -- that was necessary. That was a key position in that front office.

[Vickers Rule 30(b)(6) Dep., at 55].

Mr. Vickers also testified that Ms. Hall's “success rate in getting POs [purchase orders] approved through Pomona was high” and that “[s]he had been there long enough to know how to work folks on that end.” [Id. at 176-27].²⁰ Mr. Vickers testified that Ms. Hall “was very good at what she did” and that he “never had any issue with her.” [Id. at 130].

Mr. Goodwin's overall impression was similar. When asked what Ms. Hall was like as an employee, Mr. Goodwin testified as follows:

A: I would say overall, she was a pretty good employee. I mean, she was, if I can think, her attendance was there, her attendance was there. Her attendance was good. She, pretty much, was very respectful. You know, if I needed something, if I needed something, she had no problem trying to assist with me getting it done. But of course, she would definitely throw her jabs out there, though, and say things of, is this right, is this something you should be doing. Just things like that.

[Goodwin Dep., at 22].

Mr. Goodwin did not believe Ms. Hall's job performance was the issue. [Goodwin Dep., at 43].²¹ Even so, Mr. Goodwin admitted that Ms. Hall was a “complainer” and that she complained about things other than smells (i.e., “she complained about her pay”). [Goodwin Dep., at 87]. Mr. Goodwin also described Ms. Hall as “a woman who she let her attitude be known when something bothered her.” [Goodwin Dep., at 88].

The Secretary argues that Defendants' poor job performance justification is pretextual and points to the absence of records to support this claim. It appears undisputed that when Avenger produced Ms. Hall's personnel folder to OSHA Regional Investigator Linda Creecy, the only documented evidence of poor performance was an email dated April 2, 2019 stating that a customer claims [Ms. Hall] had not returned messages since January 2019. [Dkt. 29-9 – 7/29/23 Report of Investigation, at 6]. However, Defendants contend they do not have a progressive discipline system or a policy for documenting employee performance issues. [Koerner 30(b)(6) Dep., at 98-99].²² In addition, nearly all of the management personnel who were present in the Avenger facility in 2019 and 2020 no longer work for Defendants. [Koerner 30(b)(6) Dep., at 20, 67, 99]. Mr. Koerner testified that his response to OSHA was essentially “piece[d] together” after-the-fact. [Koerner 30(b)(6) Dep., at 99].

Given the light burden, the Court finds that Defendants have met their burden to produce evidence of a legitimate, non-retaliatory reason for Ms. Hall's separation from employment and alleged adverse action.

As is often the case, the McDonnell Douglas analysis boils down to pretext.

3. Pretext & Convincing Mosaic

If the employer is able to meet its burden to produce evidence of a legitimate, non-retaliatory reason for the challenged employment action, “the presumption of retaliation disappears, and the plaintiff must demonstrate that the employer's reasons are a pretext for prohibited retaliatory conduct.” Pennington, 261 F.3d at 1266 (quoting Johnson v. Booker T. Washington Broad. Serv., Inc., 234 F.3d 501, 507 n. 6 (11th Cir. 2000)).

“A plaintiff asserting a claim of retaliation has a higher causal burden than a plaintiff asserting a claim of direct status-based discrimination under Title VII.” Walsh, 2022 WL 973739, at *13. Beyond the prima facie case, “[t]he plaintiff must show by a preponderance of the evidence that there is a ‘but-for’ causal connection between the adverse employment action and retaliatory animus.” Id. (citations and internal quotation marks omitted).

To prove that an employer's explanation is pretextual, an employee must cast enough doubt on its veracity that a reasonable factfinder could find it “unworthy of credence.” Gogel, 967 F.3d at 1136 (en banc) (citation and internal quotation marks omitted). “If the employer's stated reason is legitimate—in other words, if it might motivate a reasonable employer to act—then the employee must address “that reason head on and rebut it.” Berry, 84 F.4th at 1307–08 (quoting Patterson v. Ga. Pac., LLC, 38 F.4th 1336, 1352 (11th Cir. 2022)).

“[T]o establish pretext, an employee must prove that the employer's reason ‘was false’ and that ‘retaliation was the real reason.’ ” Berry, 84 F.4th at 1308 (quoting Patterson, 38 F.4th at 1352). And “to prove pretext, an employee must identify ‘weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions’ in the employer's justification.” Id. (quoting Patterson, 38 F.4th at 1352). Still, “[t]hat burden does not require an employee to establish that an illegal reason was the only reason for the employer's action.” Id.

In addition to the matters already discussed, see supra, the Secretary argues that Defendants' explanation is a mere pretext for retaliatory animus.

The Secretary contends that (1) Defendants' reasons for their actions “continue to multiply and shift”; (2) Defendants failed to follow internal policy; and (3) Defendants' statements are probative of retaliatory animus. [Reply, at 3].

1. Alleged inconsistencies

“Changes in the employer's proffered reason for its employment decision support a finding of pretext.” Blue Bird Corp., 2009 WL 485471, at *5 (citations omitted). “If a plaintiff demonstrates that the reasons given for her termination did not remain consistent, beginning at the time they were proffered and continuing throughout the proceedings, this may be viewed as evidence tending to show pretext, though of course it should be considered in light of the entire record.” Walsh, 2022 WL 973739, at *15 (citation omitted).

The Secretary points to Defendants' proffer of two different separation notices as evidence of pretext. The first separation document sent to Ms. Hall noted that the reason for separation from employment as “abandoned position.” [Vickers 30(b)(6) Dep., at 133 (noted after 5 days)]. This document also inadvertently identified Connie Hall, the Complainant's mother, as the relevant employee.

A subsequent, revised separation notice reads in pertinent part:

Employee not present to review or sign separation report. When offered mutual separation, employee left without returning. Employee had behavior demonstrating she did not want to remain employed. Attitude, insubordination. So mutual separation would have been appropriate.

[Koerner 30(b)(6) Dep., at 102; Dkt. 20-28 -- Exhibit U]. Defendants contend this was an internal document that would not have been sent to an employee. [Koerner 30(b)(6) Dep., at 102-103]. Ms. Hall claims she never received a copy, and Defendants do not rebut Ms. Hall's statement. [Hall First Decl., ¶ 44].

When questioned about the second version, Mr. Vickers denied presenting it to Ms. Hall as a mutual separation agreement. According to Mr. Vickers, he only sought to answer Ms. Hall's question about what she would be entitled to if she resigned. [Vickers 30(b)(6) Dep., at 137-38].

2. Alleged failure to follow procedures for abandonment

The Secretary also points to Defendants' purported deviation from company policies and procedures. See Hurlbert v. St. Mary's Health Care Sys., Inc., 439 F.3d 1286, 1299 (11th Cir. 2006). For instance, the Secretary contends that Defendants were premature in deeming Ms. Hall's position abandoned.

The March 6, 2020 meeting between Mr. Vickers, Mr. Horne, and Ms. Hall occurred on a Friday. By close of business the following Monday, March 9, 2020, Mr. Vickers deemed Ms. Hall's position at Avenger abandoned.

Defendants' typically do not consider an employee to have abandoned their job until three unexcused absences. [Koerner 30(b)(6) Dep., at 106]. Mr. Koerner testified that Defendants' practice is to try to contact employees to see if they are coming back to work before considering them to have abandoned their jobs. [Dkt. -- Koerner 30(b)(6) Dep., at 107].²³ Ms. Hall declares that no one from Avenger tried to reach her about returning to work after March 6, 2020. [First Hall Decl., ¶ 43]. Defendants did not produce evidence that anyone from management attempted to contact Ms. Hall after March 6, 2020.

3. Alleged statements reflecting retaliatory animus

The Secretary also points to evidence in the record tending to show that members of Defendants' management team harbored a discriminatory or retaliatory animus towards Ms. Hall.

According to Ms. Creecy, Bryan Goodwin stated during his OSHA interview that Dale Horne, Barry Vickers, and Justin Jankauskas made comments about getting rid of Ms. Hall on multiple occasions.²⁴

Mr. Goodwin's testimony provides a colorful description of the Avenger / Kittrich workplace culture. When deposed, Mr. Goodwin stated that Mr. Horne and Mr. Jankauskas both voiced a desire to get Ms. Hall out of there [Avenger] towards the end of her employment. [Goodwin Dep., at 22-23]. Mr. Goodwin also stated that Mr. Vickers was present and/or a participant for at least some of these conversations. [Goodwin Dep., at 23, 26]. When asked whether these comments were made “after Ms. Hall voiced complaints about chemical smells,” Mr. Goodwin stated, “It was all after.” [Goodwin Dep., at 24]. Mr. Goodwin was asked why Ms. Hall was the subject of these conversations:

Q: So when they were saying, we need to get, she's a problem we need to get rid of her, were they specifically, was there a specific problem or reason that they were saying to you?

A: No. The problem was that she would -- I mean, again, when you have OSHA knocking on your door, right, and they are coming back and they're coming knocking on your door after something transpired or an incident happen, things of that nature, you can kind of put two and two together, who is making the complaints. So, the assumption was, she's making the complaints and we know it's her. We need to get rid of her.

[Goodwin Dep., at 24]. According to Mr. Goodwin, Defendants and their employees “assumed” that Ms. Hall was the employee lodging complaints with OSHA and openly discussed ways to end her employment. [Goodwin Dep., at 24-25].²⁵ However, Mr. Goodwin was not present or involved in the face-to-face interaction / meeting between Mr. Vickers, Mr. Horne, and Ms. Hall. Neither party asserts that Mr. Goodwin was the designated decisionmaker for Defendants for purposes of this incident. Of note, Mr. Goodwin admitted that nobody at Avenger wanted OSHA around, in part, because OSHA's presence made folks feel like they were doing something wrong. [Goodwin Dep., at 14-15].

As discussed, supra, the Court finds that the question of pretext is for the jury – not the Court. Burdine, 101 S. Ct. at 1095 n.10 (“[T]his evidence and inferences properly drawn therefrom may be considered by the trier of fact on the issue of whether the defendant's explanation is pretextual”).

The Secretary's Motion for Partial Summary Judgment is denied.

Finally, because genuine issues of material fact exist as to liability, the Court does not reach the parties' arguments concerning after-acquired evidence and/or the amount of any backway award and whether Ms. Hall mitigated her damages.

IV. Defendants' MPSJ [Dkt. 18]

In Defendants' motion, Defendants contend that compensatory and punitive damages are not allowable in an action brought pursuant to Section 11(c). Defendants further assert that, even if available, the facts of this case do not warrant a punitive damages award.

A. Exemplary damages

The availability of compensatory and punitive damages under Section 11(c) is a purely legal question. Under Section 11(c):

Any employee who believes that he has been discharged or otherwise discriminated against by any person in violation of this subsection may ․ file a complaint with the Secretary alleging such discrimination ․ if [after appropriate] investigation, the Secretary determines that the provisions of this subsection have been violated, he shall bring an action in any appropriate United States district court against such person. In any such action the United States district courts shall have jurisdiction, for cause shown to restrain violations ․ and order all appropriate relief including rehiring or reinstatement of the employee to his former position with back pay.

29 U.S.C. § 660(c)(2) (emphasis added).

The Eleventh Circuit has never squarely addressed how to construe the statutory language within 11(c) granting district courts the authority to “order all appropriate relief including rehiring or reinstatement of the employee to his former position with back pay.”

The Secretary represents that Defendants seek to create ambiguity where none exists; that “every court in the country that has considered the question” has held that, for purposes of Section 11(c) violations, the phrase “all appropriate relief” allows for compensatory and punitive damages. [Pl. Response, at 3-4 (italics in original) (listing cases)].

Defendants assert that the cases identified by and relied upon by the Secretary have “zero precedential value” and that many courts have assumed availability [Defs. Reply, at 2].

The primary authority relied upon by the Secretary is Reich v. Cambridgeport Air Sys., Inc., 26 F.3d 1187, 1194 (1st Cir. 1994). In Reich, the First Circuit held,

We conclude, in accordance with the meaning of the same words as used in Franklin, that the statutory power to award “all appropriate relief” gave the district court authority, where such relief is in fact appropriate, to award compensatory and even such traditional other relief as exemplary damages.

26 F.3d at 1194 (upholding damages award equaling twice employee's backpay figure). Reich relied upon Franklin v. Gwinnett County Public Sch., 112 S. Ct. 1028 (1992), where the Court confronted the issue of whether Title IX supports a claim for monetary damages and answered in the affirmative. Reich, 26 F.3d at 1191-92 (citing Franklin, 112 S. Ct. at 1035-38). In Franklin, the Supreme Court explained:

The general rule, therefore, is that absent clear direction to the contrary by Congress, the federal courts have the power to award any appropriate relief in a cognizable cause of action brought pursuant to a federal statute.

112 S. Ct. at 1035 (emphasis added).

Applying the rule announced in Franklin, the First Circuit observed that:

[T]he key language of the OSH Act is broad. It authorizes a court to “order all appropriate relief.” The further language including certain remedies, like reinstatement, indicates the availability of the named remedies, but does not purport to limit “all appropriate relief” to those remedies only. The mere naming of certain included remedies neither suggests nor is a “clear direction” that other remedies are precluded.

Reich, 26 F.3d at 1191 (citing, inter alia, Franklin, 112 S. Ct. at 1135). Reich ultimately concluded that, for purposes of § 11(c), the phrase “all appropriate relief” includes monetary damages, and that it would be difficult to exclude exemplary damages where otherwise warranted. Id.

After discussing Franklin, the First Circuit pointed to analogous anti-retaliation statutory schemes that expressly provide for recovery of exemplary damages as evidence of legislative intent to make such damages available. See Reich, at 1191.²⁶ That similar remedial, whistleblower-protection statutes permit the Secretary to recover the full panoply of damages is persuasive.

Since Reich, other courts have followed. See, e.g., Su v. United States Postal Serv., 730 F. Supp. 3d 1120, 1125–26 (D. Or. 2024) (citations omitted) (finding that punitive damages are allowed under OSHA's Section 11(c)); Burns-Vidlack v. Chandler, 980 F. Supp. 1144 (D. Haw. 1997) (finding “all appropriate relief” language sufficient for punitive damages). The deterrence of future violations has been noted as a reason to construe the 11(c) provision broadly to include the full panoply of damages. See Perez v. Clearwater Paper Corp., 184 F. Supp. 3d 831, 843 (D. Idaho 2016) (citations omitted) (deterrence cited as a factor).

The Secretary has the better argument on this issue. The Court is not persuaded by Defendants' position that Franklin does not govern and require a broad construction as long as otherwise consistent with canons of statutory construction.

B. Punitive Damages is a Question for the Jury

The Secretary argues that, at minimum, genuine issues of material fact exist concerning the propriety of a punitive damages award. The Court agrees that, when the evidence is viewed in the light most favorable to the Secretary, there is sufficient evidence from which a jury could find that Defendants' management personnel harbored an alleged retaliatory animus towards Ms. Hall. The same could be said for Defendants' failure to provide the contact information for Mr. Horne.

The Secretary contends that Defendants refused to provide contact information for former Avenger employee, Dale Horne, the only witness to the March 6, 2020 conversation between Barry Vickers and Ms. Hall. [See Dkt. 25-4 - - 4/3/25 Declaration of Jason Brush (“Brush Decl.”), OSHA Supervisory Investigator for the Birmingham Region OSHA Whistleblower Protection Program]. According to Mr. Brush, Defendants failed to provide Mr. Horne's last known contact information despite multiple requests, advised that Horne was deceased, and then still refused to provide OSHA investigators with Horne's last known address or phone number after OSHA independently confirmed that Mr. Horne was alive. [Id., ¶¶ 4, 5, 7-9].

For the same reasons discussed, supra, at this stage of case, the Court is unable to decide, as a matter of law whether the facts here support a punitive damages award.

Defendants' Motion for Partial Summary Judgment is DENIED.

CONCLUSION

For the foregoing reasons, it is hereby ORDERED that Plaintiff's Motion for Partial Summary Judgment [Dkt. 20] is DENIED. It is further ORDERED that Defendants' Motion for Partial Summary Judgment [Dkt. 18] is likewise DENIED.

Before calendaring this matter for jury trial, the Court, in its discretion, will refer the case to mediation. See LR 16.7(B)(1), NDGA. Within 14 days of the STAY due to lapse of appropriations [Dkt. 32] being lifted, counsel shall notify the Court regarding their preference between a private mediator of the parties' choosing or a judicial settlement conference with a U.S. Magistrate Judge.

SO ORDERED this 27th day of October, 2025.

FOOTNOTES

3.   Mr. Vickers was never employed by Kittrich or Avenger.

4.   According to Stine, “[v]irtually every industrial employer is required to have a written hazard communication program because of the broad definition in the standard.” [Stine Decl., ¶ 8]. This standard does not require proof of exposure to hazardous chemicals but merely the presence of such chemicals in the workplace. [Stine Decl., ¶ 9].

5.   Sometime after December 2019, Avenger ceased producing the chemical, Bifenthrin, that Ms. Hall complained about. [DSMF, ¶ 26]. [Vickers 30(b)(6) Dep., Exhibit 6 – Response to December Event – “Since the first of the year, we no longer produce any products for Agrisel, including Byfenthrin.”)]. Part of the reason Mr. Jankauskas was terminated was his refusal to cease using Bifenthrin. [DSAMF, ¶ 28].

6.   On February 19, 2020, at 10:21 a.m. ET, the OSHA Atlanta East Area Office sent Mr. Jankauskas an email with a letter to Kittrich regarding OSHA Complaint No. 1544394 attached. [Dkt. 20-16 -- Exhibit I – Email between Mr. Jankauskas and OSHA; Dkt. 20-17 -- Exhibit J – 2-19-20 OSHA Letter to Kittrich regarding OSHA Complaint No. 1544394].

7.   Mr. Jankauskas was fired on or after February 25, 2020.

8.   The relevant facts are discussed below in conjunction with the Court's legal analysis.

9.   [PSMF, ¶¶ 3, 4; Answer, ¶¶ 3, 5].

10.   The cases relied upon by the Secretary state only the general proposition and do not control.

11.   In a post-deposition declaration, Ms. Hall expressly denies that she ever asked Mr. Vickers about benefits she would receive upon voluntary separation. [Dkt. 29-3 – 4-3-25 Declaration of Keenon Hall (“Second Hall Decl.”), ¶ 2].

12.   It is undisputed that Mr. Vickers never told Ms. Hall that she was “fired.” [Hall Dep., at 77]. In addition, Ms. Hall could not say with any certainty that Mr. Vickers told her that her employment was being terminated effective March 6, 2020. [Id.]. When deposed, Ms. Hall admitted that it was “possible” that Defendants were offering her two-weeks pay if she would voluntarily resign. [Id., at 78-79].

13.   As of March 6, 2020, Mr. Jankauskas was no longer employed by Defendants. And there is no evidence (or claim) that Mr. Goodwin terminated Ms. Hall's employment. Mr. Goodwin testified that he received a phone call from Ms. Hall after the March 6 meeting and that Ms. Hall reported to him that she was fired.

14.   Mr. Horne was not deposed, and Mr. Vickers' Rule 30(b)(6) testimony that Mr. Horne was there to act as a witness tends to rule out Mr. Horne as a decisionmaker.

15.   When asked whether he was able to hire or fire on behalf of Kittrich, Vickers testified: “I'm W-9. I don't have the capacity to hire and fire people.” [Id. at 24-25]. However, Vickers acknowledged that he had the ability to recommend action and explained that he had more experience with making hiring recommendations. [Id. at 25]. Mr. Vickers stated that the Avenger employees responsible for firing people after Mr. Jankauskas was terminated would have been either Mr. Horne or Mr. Goodwin. [Id. at 26].Mr. Vickers testified that, after Mr. Jankauskas was no longer there (and before his replacement as plant manager was hired), Mr. Goodwin would have been the individual with ultimate firing authority at Avenger. [Vickers 30(b)(6) Dep., at 118-119].

16.   Each side poses credibility questions and challenges the evidence offered by the other party concerning what Mr. Vickers' knowledge of Ms. Hall's history or prior complaints.

17.   The Certificate of Posting appears to be signed by Mr. Jaukauskas under the title, “OPERATIONS.”

18.   “[E]vidence of causation can be used to prove pretext.” Berry, 84 F.4th at 1309 (citing Tex. Dep't of Cmty. Affs. v. Burdine, 101 S. Ct. 1089, 1095 n.10 (1981)).

19.   As discussed earlier, Ms. Hall's previous internal complaints to Avenger constitute protected activity. See Gogel, 967 F.3d at 1144 (citation omitted) (in Title VII context, recognizing that “informal complaints or the use of an internal grievance system is protected conduct”). To summarize, in the fall of 2017 or 2018, while Avenger was located in its former facility in Buford, Georgia, Ms. Hall complained of smell and odor, i.e., chemical fumes. [DSMF, ¶ 12; Hall Dep., 29, 40]. Ms. Hall notified Mr. Jankauskas and Ms. Connie Hall (who also happened to be her mother), the only two managers present. [DSMF, ¶ 13; Hall Dep., 41]. In response, Mr. Jankauskas started the ventilation system and opened all the doors and windows such that the odor quickly dissipated. [DSMF, ¶ 14; Hall Dep., 41]. Ms. Hall believed the issue was caused by a warehouse employee who forgot to ensure the ventilation system was operating. [DSMF, ¶ 15; Hall Dep. 41]. Ms. Hall was not sickened by the odor. [DSMF, ¶ 16; Hall Dep. 41].

20.   Avenger's principal place of business (as well as Kittrich's) is located in Pomona, California. [Dkt. 20-8 – Exhibit A -- Avenger Corporate Georgia Secretary of State Filing].

21.   Mr. Goodwin testified that Ms. Hall became known as a trouble maker.Q: And specifically, what kind of a trouble maker? Was it about her performance?A: No, it wasn't about performance. It was about the fact that we believed she's the one that called OSHA.

22.   Further complicating matters, Defendants were unable to guarantee 100% accuracy in their search of responsive documents. [Koerner 30(b)(6) Dep., at 89-90]. Defendants reportedly lost email records due to an email migration system failure in 2023 and a phishing / hacking event in 2024. [Vickers 30(b)(6) Dep., at 128; Koerner 30(b)(6) Dep., at 89-90]). Mr. Koerner also testified about the loss of personnel records due to a sprinkler failure that resulted in water damage. [Koerner 30(b)(6) Dep., at 89].

23.   Mr. Koerner explained what he understood Kittrich's policy to be:Q: Okay. So this term, “job abandonment,” do you know how many days is required in order for somebody to have been considered abandoned their job?A: I think we considered three, but, you know, we try to contact employees. Like, we try to resolve, you know, where are you, are you coming back, what's the deal. But I think it's three days.Q: Did anyone contact Ms. Hall?A: I believe somebody tried to. It was not me.Q: So three days, would that include weekends if there were no shifts on the weekend?A: Oh, I don't think so, but I don't know for sure.In response to a follow-up question, Mr. Koerner observed that there was a difference between an employee storming out and an employee not showing up for work. [Id., at 122].

24.   Ms. Creecy's recitation of what Mr. Goodwin said when interviewed may fall within the definition of hearsay. FED. R. EVID. 801.

25.   Mr. Goodwin was asked and testified:Q: And so, would they have those kind of conversations and then during that same conversation say, she's a problem, we need to get rid of her?A: Absolutely.Q: Okay.A: I mean, there were things, there was -- it was, oh, she comes late today, let's fire her. It was just looking for just different reasons to try to get rid of her. And but the other conversation was, well, if we get rid of her, it's going to make a bigger problem. It was, it was -- I guess it was one of those, one of those, like, being stuck between a rock and a hard place, what do we do? Because we want to get rid of her, you know, but she hasn't really did anything for us to get rid of her. So, but we know she's the one, but we -- we 100-percent believe she is the one that's making the fuss to OSHA.Q: And so, you keep saying, Justin. Did Dale Horn and Barry Vickers, did they all say, we need to get rid of her or she's a problem?A: Every single person said it. Q: Okay.A: I mean, the conversation transpired so often and so frequently that even some of the employees at Kittrich, located in Fulton Industrial, knew this and they never even met Keenon.[Goodwin Dep., at 25].

26.   The First Circuit considered the following statutes, all of which provide for exemplary damages: 42 U.S.C. § 5851(d) (protects whistleblowers in nuclear facilities from retaliatory discharge and discrimination); 15 U.S.C. § 2622(d) (toxic substances); 42 U.S.C. § 300j–9(i)(4) (safety of public water systems); 42 U.S.C. § 7622(d) (air pollution).

RICHARD W. STORY United States District Judge