SO ORDERED.
OLIVER M. TRANSUE
Administrative Appeals Judge
M. CYNTHIA DOUGLASS
Chief Administrative Appeals Judge
[ENDNOTES]
1 49 U.S.C.A. § 42121 (West 2007). Regulations implementing AIR21 appear at 29 C.F.R. Part 1979 (2006).
2 14 C.F.R. § 125.37 (2006).
3 "Charts" is shorthand for the information that the Director of Operations was responsible for disseminating. Charts include information on routes, airports, and NOTAMs (notice to airmen). NOTAMs are generated from the government and supplied to airline companies through vendors. An example of a NOTAM is an alert that a certain airport is working on a runway. The notice informs pilots of the construction.
4 Flight currency refers to operating the aircraft in the most economical method possible. To achieve this, companies use flight simulators to train pilots to fly the plane more efficiently. Airways indicated in its February 5 and March 31 TWC filings that Clemmons's use of an actual aircraft to train pilots instead of the simulator was a poor decision because of the attendant costs.
5 The ALJ found that Airways and Jet Charter jointly employed Clemmons and therefore were properly included as respondents. Airways and Jet Charter did not contest this finding on appeal.
6 See Secretary's Order 1-2002, 67 Fed. Reg. 64,272 (Oct. 17, 2002); 29 C.F.R. § 1979.110.
7 29 C.F.R. § 1979.110(b).
8 Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
9 Universal Camera, 340 U.S. at 488.
10 Rooks v. Planet Airways, Inc., ARB No. 04-092, ALJ No. 2003-AIR-35, slip op. at 4 (ARB June 29, 2006).
11 49 U.S.C.A. § 42121(a). An employer also violates AIR21 if it intimidates, threatens, restrains, coerces, or blacklists an employee because of protected activity. 29 C.F.R. § 1979.102(b).
12 See 49 U.S.C.A. §§ 42121(a), (b)(2)(B)(i); Clark v. Pace Airlines, Inc., ARB No. 04-150, ALJ No. 2003-AIR-28, slip op. at 11 (ARB Nov. 30, 2006).
13 See 49 U.S.C.A. §§ 42121(b)(2)(B)(ii), (3)(B).
14 D. & O. at 62.
15 CX 19.
16 Peck v. Safe Air Int'l, Inc., ARB No. 02-028, ALJ No. 2001-AIR-3, slip op. at 10 (ARB Jan. 30, 2004) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)).
17 D. & O. at 60.
18 D. & O. at 65.
19 D. & O. at 66.
20 D. & O. at 65.
21 49 U.S.C.A. § 42121(b)(2)(B)(i).
22 49 U.S.C.A. § 42121(b)(2)(B)(iii).
23 D. & O. at 70.
24 St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993) (factfinder may infer discrimination from pretext together with evidence supporting prima facie case); see also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000) ("Proof that the defendant's explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it can be quite persuasive.").
25 Hicks, 509 U.S. at 524 (holding that a finding that "the employer's proffered reason is unpersuasive, or even obviously contrived, does not necessarily establish that the plaintiff's proffered reason" of unlawful discrimination is correct); Reeves, 530 U.S. at 148 ("Certainly there will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, no rational factfinder could conclude that the action was discriminatory. For instance, . . . if the record conclusively revealed some other, nondiscriminatory reason for the employer's decision, or if the plaintiff created only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred."); Rubinstein v. Admins. of the Tulane Educ. Fund, 218 F.3d 392, 400 (5th Cir. 2000) (finding that the ultimate burden of demonstrating discrimination was not satisfied, despite a showing of pretext).
26 49 U.S.C.A. § 42121(b)(2)(B)(iv) ("Prohibition. – Relief may not be ordered under subparagraph (A) if the employer demonstrates by clear and convincing evidence that the employer would have taken the same unfavorable personnel action in the absence of that behavior.")
27 The ALJ awarded attorney fees and costs in the amount of $225,641. Ameristar appealed this order. The Board assigned case number 05-096 to Ameristar's appeal of this order. Given our disposition of the merits case, we vacate and remand this attorney's fees order as well, with leave to reinstate or modify the order if appropriate.