The conflict over notification is critical to resolving Brown's retaliatory defense. Obviously, MLR could not have retaliated against Brown for actions of which it was unaware. Thus, before reaching the issue of retaliation, Brown must prove that MLR received his complaints about a rodent infestation. This is a problem for Brown. All the court has is Brown's assertion that he complained to MLR and MLR's assertion that Brown never complained. Both sides' testimony seemed equally credible—this places the matter at an evidentiary equipoise.[FN2]
However, the lack of certain evidence tips the scales against Brown. There were three notable [*6]omissions in Brown's testimony. First, Brown neither produced the emails nor the photographs of the captured mice that he says he sent to MLR.[FN3] Second, Brown never specified the dates that he had alerted MLR to the presence of mice. Third, and perhaps most significantly, Brown, who was quite versed in accessing the channels of government, never lodged a complaint with code enforcement concerning rodents. Thus, the court finds that based on all the credible evidence (or lack thereof) Brown failed to establish the third element of his defense that MLR was aware of a complaint about a mouse infestation.