On April 28, 2004, Patino wrote to the FAA and requested a meeting. TR at 103-04. His letter stated that he had a list of non-conforming operations and concluded that "some help from the outside" was needed to straighten things out "before" something regrettable happened due to "some slack work" at Birken. CX 6. At a May 4, 2004 meeting with two FAA inspectors, Patino brought the 68 pages of notes he had kept over the past six years and told the inspectors about the incidents of non-conforming and possibly defective parts he had machined. TR at 105-06. The FAA investigated Patino's safety concerns, but informed him in a letter dated June 5, 2005, that it had found no "violation of an order, regulation, or standard relating to air carrier safety." RX 1.

   In August 2004, Pratt & Whitney, Birken's main customer, conducted an annual audit of the company, during which Patino turned over to a Pratt & Whitney auditor some of his notes about the allegedly defective parts on which he had worked. TR at 107-11. The auditor told Birken management that the audit had revealed "claims of defective parts leaving the facility." TR at 196. Subsequently, Greenberg met with Patino, who admitted that he had spoken with the auditor. TR at 112.

   Greenberg testified that Birken investigated the parts mentioned in Patino's notes and found that all the items alleged to be defective or non-conforming were approved later in the quality control process. TR at 198-99. Greenberg stated that after reviewing the remainder of Patino's notes, the things Patino "thought were wrong weren't." TR at 201. Greenberg added that the shut-down caused by the FAA investigation lasted about four weeks and cost Birken between $300,000.00 and $400,000.00. TR at 198, 224.

   In a September 24, 2004 letter to Patino, Greenberg expressed concern that Patino had not informed him about parts being processed incorrectly. CX 7. Greenberg added that by presenting his concerns to Pratt & Whitney, Patino "caused significant harm to Birken and its employees, all of which was totally unnecessary." Greenberg stated that Birken was "forced to shut down shipments for several days, work overtime to re-inspect parts, and miss several critical deliveries" to customers.

   On November 8, 2004, Patino was working on a castings job, but informed the foreman that no inspection had been done and no serial numbers assigned. TR at 118-19. Later that day, Greenberg met with Patino and fired him because of the "substantial damage" he had caused the company in terms of reputation, loss of business, and the costs of auditing his "unfounded claims." TR at 117; CX 8.

   The termination letter informed Patino that his conduct during the past six years had been detrimental to the company and "potentially could have put the flying public . . . in jeopardy." The letter added that, since "defective or substandard aircraft parts can obviously create serious safety hazards," Patino's failure to communicate his concerns timely was "incomprehensible and totally inexcusable." The letter concluded:

Your reckless charges of wrongdoing by Birken demonstrate that you apparently do not have an understanding of the Birken quality procedures and the

scrutiny that each part is put through after it leaves your area. Moreover, while we encourage employees to raise issues of concern relative to their work, your conduct of saving your concerns in a notebook and not advising your supervisors for several years, when flight-critical hardware was involved, cannot be tolerated.
Based upon the above conduct and the substantial damage you have caused this Company in terms of reputation, loss of business, and the costs of auditing your unfounded claims, we feel it is appropriate to terminate our employment relationship.

CX 8.

   Greenberg testified that he decided to fire Patino after Pratt & Whitney was satisfied that none of Patino's notes about non-conforming parts over the past six years contained any real defects or problems that "were not explainable" by Birken's quality control department. TR at 223. Greenberg added that if Patino had made a correct statement of improper conduct by his supervisors or managers, "he would not have been let go. He was let go because he kept these documents to himself, and refused to let management know his concerns." Id.

   Patino filed a complaint with the Department of Labor's Occupational Safety and Health Administration (OSHA) on February 3, 2005. OSHA found no merit to his complaint. Patino requested a hearing, which was held on November 3-4, 2005. After the hearing, the ALJ dismissed Patino's complaint because he had failed to establish that Birken fired him for reporting allegedly non-conforming airplane parts to his employer, Pratt & Whitney, or the FAA. Patino appealed to the Administrative Review Board (ARB), and both parties filed briefs.

    The Secretary has jurisdiction to review the ALJ's recommended decision. 49 U.S.C.A. § 42121(b)(3) and 29 C.F.R. § 1979.110. The Secretary has delegated to the Administrative Review Board (ARB) her authority to review cases under, inter alia, AIR 21. Secretary's Order 1-2002, 67 Fed. Reg. 64,272 (Oct. 17, 2002).

    The ARB reviews the ALJ's factual determinations under the substantial evidence standard. 29 C.F.R. § 1979.110(b). This means that if substantial evidence on the record considered as a whole supports the ALJ's findings of fact, they shall be conclusive. We review conclusions of law de novo. Negron v. Vieques Air Link, Inc., ARB No. 04-021, ALJ No. 2003-AIR-010, slip op. at 4-5 (ARB Dec. 30, 2004).

notes concerning allegedly non-conforming parts to Pratt & Whitney and later to Birken and that Birken knew of these activities because Greenberg acknowledged that fact. R. D. & O. at 13.

   The ALJ found that the temporal proximity between Patino's protected activity and his termination gave rise to an inference of illegal motivation. R. D. & O. at 14. In addition, she relied on the termination letter itself, which plainly states that Patino was fired because of the "negative consequences" and "substantial damage" Birken experienced as a result of Patino providing his notes about non-conforming parts to Pratt & Whitney. R. D. & O. at 15. The ALJ concluded:

The timing of the termination coming just a few months after the protected activity, the reasons articulated in the termination letter for the Complainant's dismissal, and [Greenberg's] statement that the Complainant would not have been fired had his complaints been substantiated, are sufficient to establish that the Complainant's protected activity in turning the diary of allegedly defective parts over to Pratt and Whitney played a role in his termination.

Id. Thus, the ALJ determined that Patino met his burden of proving by a preponderance of the evidence that his protected activities were a contributing factor in his firing. Therefore, Birken violated AIR 21's whistleblower protection provision.

   The Board agrees with the ALJ that Patino proved by a preponderance of the evidence that he engaged in protected activity and that he suffered an adverse action that was, at least in part, because of his protected activity.

Birken's burden of proof

   The ALJ also correctly stated that if a complainant succeeds in proving that his employer has violated AIR 21, the complainant is entitled to relief unless the employer demonstrates by clear and convincing evidence that it would have taken the same adverse action absent the complainant's protected activity. R. D. & O. at 11. The ALJ failed, however, to impose this burden of proof on Birken. Instead, she stated that Birken could rebut Patino's showing that protected activity was a contributing factor in his firing by producing evidence of a legitimate, non-discriminatory reason for the firing. R. D. & O. at 15.

   This is error. Mere production of a legitimate, non-discriminatory reason for the adverse action is not sufficient to rebut a showing that Patino's protected activities contributed to his firing. Rather, Birken must demonstrate, i.e., prove, by clear and convincing evidence that it would have fired Patino in the absence of his protected activity. See Peck, slip op. at 13 (explaining the "scope of coverage, procedures, and burdens of proof under AIR 21"). Because the ALJ did not analyze the record evidence to determine whether Birken met its burden of proof, we must remand this case. Clemmons

v. Ameristar Airways, Inc. ARB Nos. 05-048, -096, ALJ No. 2004-AIR-011, slip op. at 10 (ARB June 29, 2007). Cf. Bechtel v. Competitive Techs., Inc., ARB No. 06-010, ALJ No. 2005-SOX-033, slip op. at 7 (ARB Mar. 26, 2008). On remand, the ALJ must apply this evidentiary standard in determining whether Birken has met its burden of proof.

Arguments on appeal

   Birken argues on appeal that the ALJ applied the correct "clear and convincing" standard in finding that Birken did have a legitimate, non-discriminatory reason for firing Patino. Respondent's Brief at 22-25; R. D. & O. at 16. But this conclusion by the ALJ does not demonstrate under the clear and convincing burden of proof that Birken would have terminated Patino's employment absent his protected activity. Therefore, we reject this argument.

   Patino argues on appeal that had the ALJ applied the correct standard of clear and convincing evidence, Birken could not have met its burden of proof because the ALJ concluded that, "[i]n my view," it is a close question whether Birken's reason for firing Patino was "a mere pretext for a discriminatory motive." R. D. & O. at 17; Complainant's Brief at 4. That conclusion, Patino contends, shows that the record contains insufficient evidence to meet the clear and convincing standard, and, therefore, Patino should have prevailed. Id.

   Because the ARB reviews recommended decisions under a substantial evidence standard and does not act as fact-finder, our preferred method is to remand for application of the correct legal standard to the facts as found. See Clemmons; Bechtel.

   The ALJ ruled that Patino established by a preponderance of the evidence that his protected activity was a contributing factor in his firing. Thus, Birken violated AIR 21. Birken can avoid liability only it can prove by clear and convincing evidence that it would have fired Patino absent his protected activity. Therefore, we VACATE the ALJ's recommended decision and remand this matter for the ALJ to determine whether Birken has met its burden of proof.

   SO ORDERED.

            M. CYNTHIA DOUGLASS
            Chief Administrative Appeals Judge

            WAYNE C. BEYER
            Administrative Appeals Judge