Fresh & Easy Neighborhood Market, Inc.

Margaret Elias (plaintiff) was a cashier at a Fresh & Easy Neighborhood Market, Inc. (Fresh & Easy) (defendant) grocery store. Elias asked her supervisor if she could attend a specified training known as “TIPS,” and the supervisor requested that she write out the request in a note to him on the breakroom whiteboard. Elias wrote on the whiteboard, in part, “Could you please sign me up for TIPS training on 9/10/11?” The next day, the word “TIPS” had been changed to “TITS,” and a picture of a worm urinating on Elias’s name had been added. Elias asked her team leader about filing a sexual-harassment complaint. The team leader was initially dismissive. Elias drew the whiteboard scene on a piece of paper and asked her team leader and two female coworkers to sign the paper. Elias informed each of the three coworkers that she wanted to file a sexual-harassment complaint. The three employees complied in signing the paper, apparently agreeing to serve as witnesses to the whiteboard scene but not to join or help in filing a complaint. Thereafter, the offending employee was identified, and the incident was reported to human resources (HR). During HR’s investigation, the HR manager questioned Elias on why she had obtained her coworkers’ signatures and instructed Elias not to obtain any further statements. In an administrative proceeding, Elias alleged that the HR manager unlawfully interfered with Elias’s concerted activities under § 7 of the National Labor Relations Act. An administrative law judge (ALJ) found that Elias was not engaged in concerted activity within the meaning of the act. The matter was transferred to the National Labor Relations Board for review.