ARB CASE NO. 04-163
ALJ CASE NO. 2003-AIR-045
DATE: October 31, 2007
In the Matter of:
RIAD MAJALI,
COMPLAINANT,
v.
AIRTRAN AIRLINES,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant:
Edward R. Gay, Esq., Law Firm of Edward R. Gay, P.A., Orlando, Florida
For the Respondent:
R. Paul Roecker, Esq., Greenberg Traurig, P.A., Orlando, Florida
FINAL DECISION AND ORDER
Riad Majali
complained that AirTran Airlines violated the whistleblower provisions of the
Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR 21), 49 U.S.C.A. § 42121 (West 2007) when it suspended him
without pay in 2002 and ultimately terminated his employment in April 2003. A
Department of Labor (DOL) Administrative Law Judge (ALJ) dismissed the
complaint. Majali appeals, and we affirm.
Background
For convenience, we briefly restate certain background
facts. More details are provided in the ALJ’s Recommended Decision and
Order (R. D. & O.).
[Page 2]
AirTran was a commercial
airline company transporting passengers and cargo. Letter from Occupational Safety
and Health Administration (OSHA) to Majali, Aug. 18, 2003. Majali began work at
AirTran on February 26, 2001 as the Manager of Maintenance Planning. R. D.
& O. at 2. He was supervised by Jim Buckalew, Director of Maintenance
Planning and Control. Id. Christine O’Sullivan and Reuben Wenger were
two of Majali’s subordinates. R. D. & O. at 5.
AirTran’s
maintenance program was designed to ensure that each aircraft received
maintenance in accordance with Federal Aviation Administration (FAA)
requirements. R. D. & O. at 4. For example, FAA rules require that a
“heavy” maintenance check be performed after a specified number of hours of air
flight time, varying by aircraft type. See Transcript (T.) at 53-56.
An aircraft that has continued to fly without receiving a required maintenance
check is considered to be in “overfly” status. See id. at 49-50. Once
an aircraft enters overfly status, FAA rules permit only ferry flights (flying
the plane to its maintenance location) and not revenue flights (flying with
paying passengers). R. D. & O. at 10 & n.16.
Majali’s duties
included managing the operations planning portion of the maintenance planning department,
enforcing FAA safety regulations, and maintaining AirTran’s in-house “overdue
report.” R. D. & O. at 4. This report listed for each aircraft the number
of hours remaining until a maintenance check was required, or – if required
maintenance was overdue – the number of hours of overfly. See T. at 50-51,
203-05.
Aircraft 935 was
originally scheduled to receive a maintenance check[1]
on February 6, 2002. R. D. & O. at 11; see Respondent’s Exhibit (RX)
39 (Apr. 13 AirTran internal memo) at 1. The check was rescheduled for
February 8 and then, on January 30, rescheduled again for February 15. Id. On February 13, O’Sullivan miscalculated the numbers of hours flown and then
again rescheduled the check. Id. The new scheduled date was
February 22. Id. Aircraft 935 next flew on February 18, entering
overfly status that day. Id. Subsequent flights on February 19 and 20
left the aircraft over 14 hours late for its maintenance check. Id. Yet on February 22 the check was again rescheduled, this time for February 24.
Id.
The morning of
February 23, O’Sullivan noticed that the aircraft was in overfly status. R. D.
& O. at 8. She informed Majali, and he requested that the maintenance
check be performed in Atlanta. Id. AirTran’s Atlanta department lacked
the equipment needed to perform the maintenance check and was unable to borrow
any on that day. Id. Buckalew then arranged for the check to be
performed in Miami. R. D. & O. at 10.
When Majali
arrived at work on February 24, he learned that the flight to Miami would be a
revenue flight. R. D. & O. at 9-10. Majali did not intervene, and the aircraft
[Page 3]
flew the revenue flight as scheduled. Id. By the time it
arrived in Miami, the aircraft had been in overfly status for over 30 hours. R.
D. & O. at 12.
The next day
Nick Drivas, AirTran’s Director of Quality Assurance, learned of the overfly
from AirTran’s chief inspector and later from Buckalew. R. D. & O. at 10.
Drivas asked Steve Morrison, AirTran’s chief regulatory compliance specialist,
to head an internal investigation of the overfly. Id.
While the
investigation was ongoing, Majali on March 15 wrote a memo to Buckalew
detailing concerns he had with Buckalew’s handling of the maintenance
department and the Aircraft 935 overfly situation. In that memo, Majali charged
that “[a]llowing the . . . revenue [flight] . . . was illegal and unsafe.” RX
19 (Mar. 15 memo from Majali to Buckalew) at 2; see R. D. & O. at 15.
Morrison reported
that O’Sullivan, by using calculations that admittedly “may have been hasty and
inaccurate,” had caused Aircraft 935’s maintenance to be late; that another
subordinate had noticed the overfly yet had not reported it; and that the
Planning Department had not placed an order on the aircraft “to prevent further
flight until the . . . check was performed.” RX 39 at 1-2; R. D. & O. at
11-13. The memo recommended that the Planning Department receive further
training in reading the overdue report, and that the Department should assign
multiple personnel to review that report “to ensure that an accurate review is
performed and items coming due are not overlooked.” RX 39 at 2.
After processing
its internal review, AirTran on May 13 reported the Aircraft 935 overfly to the
FAA. R. D. & O. at 14 (citing RX 20). AirTran’s report did not mention
the February 24 revenue flight. Id.
The next day,
Buckalew wrote a “Letter of Reprimand” to Majali. R. D. & O. at 13
(quoting RX 21 (May 14 Letter of Reprimand) at 1). The reprimand criticized Majali
for “not . . . maintaining the overdue review which would have avoided
[Aircraft 935’s overfly].” RX 21 at 1; R. D. & O. at 13. The letter warned
Majali that continued failure to “develop, document and implement procedures
which maintain compliance” with FAA requirements would result in “immediate and
final disciplinary action.” Id.
Majali responded the
following day, blaming O’Sullivan for the miscalculations in recording the
overfly hours for Aircraft 935. R. D. & O. at 13-14 (citing RX 24). Majali
also detailed problems with inadequate staffing and planning, arguing that “the
overflight . . . was not the result of the [overdue] report.” RX 24. He again
criticized the “most serious violation,” the revenue flight, as illegal and
unsafe. Id. at 1.
On June 11 the
FAA informed AirTran that Aircraft 935’s overfly had been considered and did
not warrant legal enforcement action. R. D. & O. at 14.
On June 18
Majali attempted to extend a vacation to visit his mother in Jordan, originally planned for June 23 to July 7. R. D. & O. at 18. He emailed Buckalew,
asking permission to switch with Wenger to cover his July 8 shift and use compensatory
time to
[Page 4]
cover his July 9 and 10 shifts. Id. Buckalew testified that he
responded verbally to Majali’s June 18 email, as was his practice. See T.
at 433. Buckalew told Majali that he could “not . . . extend [the vacation]
for a longer period of time, especially up to . . . the twenty-some days away
from the office, because [Majali] had responsibilities.” Id. at 434.
On July 1, after
Majali had left for his vacation, Buckalew constructed the July Maintenance
Planning Schedule. That schedule marked Majali’s vacation time from June 23
until July 3 as “V”, but left July 8, 9, and 10 as work days. RX 27 at 1.
Buckalew also told Wenger in early July that he did not need to cover for
Majali. See T. at 306, 435.
Majali did not
come to work on July 8, 9 or 10. R. D. & O. at 19. On July 9 or 10,
Buckalew called Majali for an explanation but did not reach him. Id.
Buckalew then sought
guidance from Loral Blinde, Vice President of Human Resources. Blinde
suggested that he, Buckalew, Majali, and Guy Borowski, Vice President of
Maintenance and Engineering, meet on July 15 (Blinde’s next day in the office)
to discuss the situation. To prepare for the meeting, Blinde asked Buckalew to
provide a “performance summary” regarding Majali. R. D. & O. at 19.
Buckalew’s memo focused upon various incidents supporting Buckalew’s view that Majali’s
job performance had been poor. Id. at 19-20 (citing RX 28).
Majali’s next
scheduled work day was July 14. See RX 27 at 1. On July 13, Buckalew
contacted Majali and told him to not come to work the next day, but instead to
arrive on July 15 for the meeting. R. D. & O. at 19-20. At
Majali’s request Anne Giles, a human resources manager, attended the meeting
and took detailed notes. Blinde stated that these notes were accurate, and
Majali – with one exception – agreed. Id. at 20 (Blinde), T. at 260-61 (Majali).
According to those
notes, at the meeting Buckalew complained about Majali’s July 8-10 absence. RX
29 (July 22 memo from Giles to Blinde) at 1. Majali then explained his belief
that his extended vacation had been approved, and complained that his
relationship with Buckalew had suffered greatly since the Aircraft 935
overfly. R. D. & O. at 20 (citing RX 29). At the end of the meeting
Blinde told Majali that he would look into the issues raised, and asked him to
remain at home while he did so. Id. (We refer to this as the “informal
suspension.”) According to Giles’s notes, Blinde said that he would contact
Majali “within the next few days.” R. D. & O. at 20 (quoting RX 29 at 1).
Majali disagreed with the accuracy of the notes on this point and testified
that Blinde had said that he would contact Majali the next day. T. at 95,
260-61; see R. D. & O. at 20.
The next day, having
not yet heard from Blinde, Majali retained an attorney. R. D. & O. at 20.
The attorney wrote a letter, sent July 17 on Majali’s behalf, stating that Majali
felt his employment with AirTran had been terminated and that he would not
accept reinstatement. R. D. & O. at 20-21 (citing RX 30). On July 18,
Blinde called
[Page 5]
Majali’s attorney and told him that there had been no discharge.
Id. Having attempted but failed to make further telephone contact, Blinde
then on July 22 faxed a letter to the attorney, again informing him that Majali
was still an employee and further stating that if Majali did not return to work
on July 24, then he would be placed on unpaid leave. R. D. & O. at 21
(citing RX 31 (July 22 letter from Blinde to Majali’s attorney)); T. at 544.
Majali did not
return to work on July 24. R. D. & O. at 24. Blinde then placed Majali on
unpaid leave. Id. (We refer to this as the “formal suspension.”)
On July 29
Majali wrote to Joe Leonard, AirTran’s Chief Executive Officer (CEO), asking
him to investigate “the corruption in the maintenance department led by Mr.
Buckalew.” T. at 102-03; R. D. & O. at 33.
On August 5
Majali wrote Blinde stating that he was willing to return to work at AirTran, but
he “did not give up [his] right to go to the FAA” and he also “reserve[d] the
right to go to the EEOC to complain about the way [he] was constructively
terminated.” RX 55 (Aug. 5 letter from Majali to Blinde). Blinde replied,
informing Majali that so long as Majali was represented by counsel, all
correspondence should go through their respective attorneys. R. D. & O. at
22. On August 7, Majali notified Blinde that he was no longer represented by
counsel and wanted “to start working the details of any agr[e]ement we may
reach.” Id. (citing RX 32 (Aug. 7 email from Majali to Blinde)
at 2). Blinde responded that day and asked Majali to “let [him] know what
[Majali was] looking for” in terms of a settlement. Id. at 1.
On August 8 Majali emailed
a proposed settlement. R. D. & O. at 22. Although he had worked at
AirTran for little more than a year, Majali requested three years of pay, one
year of medical benefits, six months of flight privileges, and a letter of
recommendation. Id. Majali stated that if the terms were not
acceptable to AirTran, then he would have to “seek justice somewhere else.” Id. Blinde responded on August 9, declaring Majali’s request unacceptable and stating
that AirTran’s common practice for “transition pay” was “2 weeks of pay for
each year of service.” RX 54 (Aug. 9 email from Blinde to Majali) at 1.
On August 14,
Majali notified Blinde that he planned to pursue legal action regarding
AirTran’s “retaliation and harassment [that] is covered under Title VII of the Civil Rights Act of 1964.” RX 73 (Aug. 14 letter from Majali to Blinde) at 1; R. D.
& O. at 22.
On August 16,
Majali offered to return to work so long as AirTran did not impose any conditions
upon him. See RX 35 (Aug. 16 email from Majali to Blinde) at 3
(offering to return so long as Majali was not required to “sign[] any papers or
releases”), 2 (second offer to return, sent later the same day). Majali added
that he was “also willing to listen to any settlement proposal from your
side.” RX 35 at 3; see also R. D. & O. at 23. Blinde did not
respond. See R. D. & O. at 23. He explained to the ALJ that he
chose not to accept Majali’s offer to return because Majali continued to offer
settlement as an
[Page 6]
alternative, and because “at that point it was fruitless to
have him come back because of the demands he continued to make.” R. D. &
O. at 23 (quoting T. at 588).
Majali then on
August 23 reported to the FAA that Aircraft 935 had flown a revenue flight
during its February overfly. Id. (citing CX 5 (Majali’s Aug. 23
letter to the FAA)).
On October 11
Majali filed a complaint with DOL’s OSHA, alleging – although he was still
receiving medical benefits – that he had been constructively discharged in
violation of AIR 21. R. D. & O. at 2.
On October 23, Majali
emailed Blinde advising him that he had filed a complaint with OSHA. R. D.
& O. at 23 (citing RX 35 (Oct. 23 email from Majali to Blinde)). Majali stated
that he was willing to “avoid the fiasco of investigations and court system[s]”
and would “stop this immediately before [OSHA] get[s] started” if Blinde would
either reinstate him or grant him a settlement package of three months pay, one
month “lost wages,” one year of flight benefits, and health benefits for up to
one year until he found new employment. RX 35 at 1; see also R. D.
& O. at 23. Blinde was traveling and did not have access to email, so he
did not reply to Majali’s request. R. D. & O. at 23. Majali revoked his settlement
offer on October 29, stating that his desire for compensation was not as
important as his “maintenance compliance and safety issues.” Id. The
next day, however, Majali again extended the October 23 offer. Id. (citing RX 48). In response, Blinde offered two months of pay as a transition
package as well as “[two] months benefits and travel.” Id. Majali replied
on October 31 that he would not accept less than four months of severance pay.
Id. (citing RX 47 (Oct. 31 email from Majali to Blinde) at 1.
On November 4,
Majali notified Blinde that “may be [sic] the [FAA] is conducting an
investigation” into “what happened on [Aircraft] 935.” RX 45 (Nov. 4 email
exchange between Majali and Blinde) at 2; see R. D. & O. at 23. Majali
stated that he “look[ed] forward to [his] meeting with the [FAA]” and he
intended to cooperate fully. Id.
Blinde replied
the same day, telling Majali that his latest offer was still “much higher than is
fair or consistent with others,” and that “it appears we are unable to resolve
this matter in this way.” RX 45 at 1; see R. D. & O. at 23. By
this time Blinde had received OSHA’s notification of Majali’s AIR 21 complaint.
Majali initially
responded that his previous offer was the last one he would make; but later
that day he upped his offer again, stating that he would settle for nothing
short of reinstatement and back pay compensation. RX 45 at 1; RX 44 (Nov. 4
email from Majali to Blinde, subsequent to earlier exchange) at 1. Communications
between Majali and Blinde then ceased.
On February 24, 2003
an aviation safety inspector for the FAA, Raul Flores, notified AirTran that the
FAA would be investigating the overfly. R. D. & O. at 16-17;
[Page 7]
see RX
71 (Feb. 24 letter from Flores to AirTran) at 1. The FAA then began interviewing
multiple AirTran employees including O’Sullivan. Id.
On March 7,
Drivas wrote Flores explaining that the February 24, 2002 revenue flight had been omitted from AirTran’s May 13, 2002 disclosure due to an “administrative
oversight.” RX 58 (Mar. 7 letter from Drivas to Flores) at 1.
On March 20, the
FAA sent AirTran the transcripts of the FAA’s investigative interviews. R. D.
& O. at 17. Upon receipt of these transcripts AirTran learned that
O’Sullivan had told the FAA that during the week prior to the overfly, Majali
had requested that she falsify documents in order to hide the overfly status of
Aircraft 935. R. D. & O. at 17, 24. Within a few days – but without
investigating O’Sullivan’s allegation or checking with Drivas and Morrison to
confirm O’Sullivan’s allegation that she had told them at the time – AirTran
decided to take action against Majali based upon the allegation.
On March 31, Drivas
wrote Flores highlighting the allegation, stating that “Majali’s actions are
inexcusable and will not be tolerated” and promising that Majali would “not be
allowed to return to work at AirTran.” RX 18 (Mar. 31 letter from Drivas to Flores) at 1; see R. D. & O. at 17. Drivas also suggested that the FAA “consider
instituting appropriate sanctions against Mr. Majali’s certificate(s). While
he might not be exercising them in his job at the TSA, there is no telling when
and where he might exercise those privileges in the future.” RX 18 at 2.[2]
On April 1, without
responding to Drivas’s letter, Flores notified AirTran that the investigation
had been concluded and the report had been forwarded to the Southern Regional
Counsel for “appropriate action.” RX 60 (Apr. 1 letter from Flores to AirTran)
at 1.
On April 25, AirTran informed
Majali by letter that “your employment is terminated effective April 25, 2003 for disregarding your regulatory responsibilities and for ordering a
subordinate to falsify a maintenance document.” RX 37 at 1; see also R.
D. & O. at 24. Majali then filed another complaint with OSHA, alleging
that this discharge had violated AIR 21. R. D. & O. at 2.
On August 18,
OSHA dismissed Majali’s first complaint, concluding that he had not been constructively
discharged. R. D. & O. at 2. Majali timely requested a hearing before a DOL administrative law judge (ALJ). Before the hearing took place, OSHA – without investigating Majali’s
second complaint – forwarded that complaint to the Office of Administrative Law
Judges with the recommendation that the two complaints be consolidated. T. at
9; R. D. & O. at 2.
[Page 8]
After a hearing
on the now-consolidated complaint, the ALJ recommended that Majali’s complaint
be dismissed. Majali timely sought our review, and we accepted his case for
decision.[3]
Analysis
In order to
prevail under AIR 21, a complainant must prove by a preponderance of the
evidence that he was a covered employee, that he engaged in activity protected
under AIR 21, and that protected activity contributed to a covered employer’s
decision to subject him to an unfavorable personnel action.[4]
A complainant who prevails is entitled to relief
unless “the employer has demonstrated by clear and convincing evidence that it
would have taken the same unfavorable personnel action in the absence of the
protected activity.”[5]
In reviewing the
ALJ’s decision, we must accept factual determinations that are supported by substantial
evidence.[6]
We review conclusions of law de novo.[7]
Coverage is not disputed. Therefore, we proceed to examine
the other elements.
[Page 9]
Protected Activity
The ALJ concluded
that Majali engaged in protected activity on three occasions: his March 15, 2002 memo to Buckalew; his July 29, 2002 letter to AirTran’s CEO; and his August 23, 2002 letter to the FAA. R. D. & O. at 33-34.
AirTran accepts
the ALJ’s conclusions that sending the March 15 and July 29 documents
constituted protected activity, but argues that the August 23 letter did not
constitute protected activity because the FAA already knew about the overfly
from AirTran’s May 13 report. Respondent’s Brief (RB) at 4. As Majali notes,
however, his August 23 letter notified the FAA about the February 24 revenue
flight, which had been omitted from AirTran’s May 13 report. Complainant’s
Initial Brief (CIB) at 17-18. Therefore we see no reason to take issue with
the ALJ’s conclusion that Majali’s August 23 letter to the FAA was protected
activity.[8]
The ALJ did not
address whether Majali’s May 15, 2002 letter to Buckalew was protected
activity. RX 24. Because Majali does not argue that the ALJ erred in omitting
discussion of this letter, we assume that the May 15 letter did not constitute
protected activity.
Knowledge
The ALJ found
that “it is clear that the decision to suspend Complainant was made by agents
of the Respondent who were aware of the protected activity.” R. D. & O. at
34. The ALJ also found that Loral Blinde, who signed the letter effecting Majali’s
termination, knew about Majali’s August 23 letter to the FAA. See R. D.
& O. at 35. Neither party contests these findings.
Adverse Action
Neither party
contests the ALJ’s conclusions that AirTran’s formal suspension and termination
of Majali’s employment were adverse actions.
The ALJ also
concluded that the informal suspension with pay was not an adverse action, and
Majali does not quarrel with that conclusion in his initial brief. He does
argue in his reply that AirTran’s “actions to shut off Majali’s access to the
premises, shut off his computer access, and bring him in for questioning can
only be seen for what the actions are, a retaliatory event.” Reply at 4–5.
But Majali did not raise this argument in his petition for review and thus it
is waived.[9]
[Page 10]
In addition, although
his brief is not entirely clear, Majali appears to suggest that the ALJ erred
in failing to identify as an adverse action AirTran’s March 31, 2003 letter to the FAA, “an obvious retaliatory event.” CIB at 18-19; see also
Reply at 9 (“The ALJ . . . make[s] no reference to this obvious retaliatory act
against Majali.”). Majali did not argue to the ALJ that the March 31 letter
was an adverse action, however. Therefore, any argument he may now intend to
raise in this regard has been forfeited.[10]
It is possible that Majali is merely citing that letter as evidence of
AirTran’s general retaliatory animus; we discuss the letter’s impact as
evidence in the causation section.
Causation
The ALJ
concluded that protected activity was not a contributing factor to either the
formal suspension or the termination.
Formal Suspension
With regard to
the formal suspension, AirTran told the ALJ that Blinde converted Majali’s
temporary suspension with pay into a formal suspension without pay because
Majali did not return on July 24 after being specifically instructed to do so.
See, e.g., Airtran’s Pre-Hearing Brief at 12 (“Majali chose not to
return [on July 24] and therefore he was removed from paid status and placed on
a leave of absence.”); T. at 31, 545. The ALJ concluded that this reason was
“nondiscriminatory,” R. D. & O. at 41, and found that “the weight of the evidence
shows that” this reason was accurate, R. D. & O. at 37
[Page 11]
(finding that “Respondent
suspended [Majali] because he refused to report to work as scheduled on July 24”).
We take this finding as equivalent to a finding that Majali failed to prove
this reason pretextual.
Majali does
not dispute the ALJ’s conclusion that an unauthorized absence constitutes
non-discriminatory grounds for a formal suspension, nor does he appear to
dispute the ALJ’s finding that his formal suspension on July 24 occurred because
he did not return to work on that day.
Majali does
spend a good portion of his brief contending that the ALJ’s finding that his absences
on July 8-10 were unauthorized “is not supported by the greater weight of
evidence.” CIB 12-16. But this issue is not relevant to the formal suspension
because regardless whether the July 8-10 absences were authorized, Majali does
not dispute that AirTran suspended him on July 24 because he failed to return
to work on that date. The July 8-10 absences did constitute some part of AirTran’s
reason for the informal suspension on July 15 – but because Majali does not
contest the ALJ’s conclusion that the informal suspension did not constitute
adverse action (as we discussed in the previous section), we need not determine
whether this reason for that suspension was genuine.
Majali also
appears to disagree with the ALJ’s finding that the timing sequence from the
protected activity to the suspension and eventual termination “does not suggest
that Respondent retaliated against Complainant for his protected activity.” R.
D. & O. at 36. In Majali’s view, the four-month gap between his March
protected activity and his July suspension “falls within the Complainant’s
ability to claim retaliatory animus as a contributing factor . . . as a
sophisticated employer would not take any action but would delay . . . until
the first opportunity presented itself to find a way to take the adverse
employment [sic] in an attempt to avoid liability.” CIB at 7-8.
But because Majali
does not dispute the ALJ’s finding that he was formally suspended due to his
absence on July 24, his argument regarding temporal proximity also cannot
succeed. Even if the four-month gap were sufficient to raise an inference of
causation, it is not sufficient itself to prove causation in light of the ALJ’s
finding that AirTran’s reason – Majali’s absence on July 24 – was accurate and
that Majali did not prove it false.
Termination
The ALJ found
that Majali did not prove causation by “direct evidence,” R. D. & O. at 35,
and Majali does not appear to contest that finding. The ALJ then found that
Majali did not prove causation by what the ALJ referred to both as “indirect
evidence” and as “circumstantial evidence.”[11]
Majali argues that the ALJ erred in making this
[Page 12]
finding. CIB at 7. Majali further argues that in any case, he successfully attacked AirTran’s articulated
reasons for its adverse actions and therefore he should prevail.[12]
We discuss these two arguments in turn.
[Page 13]
Long Delay and March 2003 letter to FAA
Majali argues
that the ALJ overlooked at least two forms of evidence showing that
discrimination contributed to his termination: the long delay before his
termination, and AirTran’s March 2003 letter to the FAA.
Delay before termination
Majali first
argues that the ALJ “overlooked . . . the theory that . . . AirTran delayed the
termination purposely so [AirTran] could make the argument . . . that there has
been a time lapse between the protected activity and termination.” CIB at 8-9. But aside from the delay itself, Majali has provided no evidence to support his
“theory” that AirTran’s delay was a mere ploy to provide immunity from suit. A
long delay between protected activity and termination does not prove causation,
but rather generally makes causation less likely. Absent any evidence to
support Majali’s theory, we conclude that the long delay is not itself evidence
of causation. Of course, the long delay does not in and of itself prove that
there was no causation, so we proceed to Majali’s other arguments.
[Page 14]
Letter to FAA
Majali then
contends that the ALJ should have found causation shown by the short time gap
between the February 24, 2003 opening of the FAA’s investigation, AirTran’s
March 7 letter to the FAA admitting the revenue flight, and AirTran’s
subsequent March 31 letter to the FAA promising Majali’s termination due to the
alleged falsification. CIB at 18-19. In Majali’s view that March 31 letter
was “an obvious retaliatory event and a [sic] causal relationship between the
Complainant’s complaints of the illegal revenue flight and his termination.” Id. at 18.
The ALJ does not
appear to have discussed whether AirTran’s letter to the FAA constituted some
proof of causation. Because the letter cited the alleged falsification as the
only reason for the termination, it does provide some support for Majali’s
argument that the falsification was AirTran’s only reason for the termination.
The letter cannot itself prove causation, however. It has weight only if
Majali succeeds in his arguments attacking AirTran’s various articulated
reasons. Therefore, we now turn to those arguments.
AirTran’s Reasons
AirTran did not
distinguish between its reasons for the termination and the suspensions. Rather,
AirTran told the ALJ that it “suspended and later terminated Majali for
numerous, independent, legitimate reasons, including his (1) continually poor
job performance; (2) failure to timely return to work after his July 2002
vacation; and (3) misconduct in connection with the 935 Overfly [i.e., the
alleged falsification].” Respondent’s Post-Hearing Brief (RPHB) at 58.
Majali argues
that the ALJ did not find that performance was a reason for the termination,
rejected the falsification reason, inappropriately relied upon a reason AirTran
did not offer, and then relied upon a reason that was not supported by
substantial evidence. We address these arguments in turn.
Performance
Majali first
argues that “[p]erformance as an alternative ground for termination was never
raised by AirTran.” CIB at 21. AirTran does not appear to respond to this
assertion. Indeed, AirTran’s entire argument relating to performance consists
of a single lengthy quotation from the ALJ’s opinion. See RB at 16-17
(repeating eight of nine sentences entirely unchanged; deleting part of fourth
sentence and replacing it with phrase “It was apparent to [the ALJ]”). It is
true that the letter terminating Majali’s employment cited only the
falsification allegation and gave no other reason for the termination. See RX
41 at 2 (“[Y]ou directed a subordinate employee to falsify a maintenance
document . . . This is a most serious matter that cannot be overlooked.
Consequently, . . . you are no longer welcome back to a position at AirTran
Airways.”). It also is true that AirTran’s March 31 letter to the FAA cited
only the alleged falsification as the reason that Majali would “not be allowed
to return to work.” See RX
[Page 15]
18 at 1 (“AirTran recently received the
transcripts [of the FAA interviews] and offers you the following: . . .
Majali[] instructed a subordinate . . . to falsify . . . a document . . . .
Based upon the facts presented, Mr. Majali will not be allowed to return to
work at AirTran.”). Nonetheless, we note that AirTran’s post-hearing brief did
specifically articulate Majali’s “poor job performance” as one of the reasons
why it “suspended and later terminated” Majali’s employment. See RPHB
at 58.[13]
Therefore, we conclude – without determining ourselves whether AirTran actually
relied upon performance as a reason – that AirTran did articulate performance
as a reason.
We therefore
move on to Majali’s second argument: that “the ALJ notes [Majali] was not
terminated because of performance issues.” CIB at 21. While the ALJ did not
explicitly make such a finding, the ALJ did state that “Respondent
[articulated] two additional reasons [beyond Majali’s “refusal to report
to work as scheduled on July 24”] for formally terminating Complainant . . . . First,
. . . information . . . which led [AirTran] to believe that Complainant had
asked a subordinate to falsify a document and second, Complainant did not
actually attend work for over ten months.” R. D. & O. at 37. Thus the ALJ
did not include “performance” in her list summarizing AirTran’s reasons for the
termination.
In addition, the
ALJ did not ever state that performance was the reason for the termination.
She found that performance “set the stage” for AirTran’s informal and formal
suspensions of Majali, and that it was “a factor which colored the
negotiations,” R. D. & O. at 39. She also found that Majali’s “job
performance coupled with his failure to report to work warranted [the]
suspension and later formal termination,” R. D. & O. at 41 (emphasis
added), and that Majali’s “performance . . . was not up to par and in and of
itself would have been reason enough for [AirTran] to terminate”
Majali’s employment, R. D. & O. at 39 (emphasis added). But she did not
ever say that performance actually was the reason for the termination.[14]
Thus, it
certainly is plausible to interpret the ALJ’s statements together as a finding
that, as Majali asserts, Majali’s termination was not due to Majali’s job
performance. Moreover, because as we have noted AirTran’s entire response to
Majali’s argument consists of a quotation from the ALJ’s opinion, AirTran
appears to concede that Majali’s interpretation is correct. Therefore, we are
not inclined to quarrel with Majali’s assertion that the ALJ never found that
performance was a reason for the termination.
[Page 16]
Alleged falsification
The ALJ found
that AirTran had articulated the alleged falsification as its “primary” reason
for the termination, but the ALJ agreed with Majali that this reason was
“deficient.” R. D. & O. at 38. As the ALJ explained, “O’Sullivan’s
allegation [was] not credible,” yet AirTran accepted it without taking steps
that would have been “reasonable . . . given the seriousness of the
allegation.” Id. For example, the ALJ noted, AirTran did not ask
Majali to give his reaction to O’Sullivan’s allegation, nor did AirTran ask
Drivas or Morrison whether either recalled hearing this information from
O’Sullivan. Id. (noting that O’Sullivan’s report that she told both
Drivas and Morrison was inconsistent both with Drivas’s testimony – which
expressly contradicted O’Sullivan’s – and with Morrison’s report, which did not
include any such allegation but surely would have if the allegation had been
made at the time). Based on this analysis, the ALJ found that the alleged
falsification was not a “convincing” reason. Id.
AirTran does not
appear to contest this finding. AirTran does appear to assert that the ALJ
“correctly found” that one of AirTran’s reasons for the termination was the
alleged falsification. RB at 14. But this assertion is clearly incorrect.
Although the ALJ found that AirTran had articulated (proffered) the
falsification as a reason, she never found that the falsification was in fact
the reason.
AirTran further
argues that the ALJ’s entire discussion of the falsification reason was
unnecessary because “the burden never shifted to AirTran to . . . pro[ve]” its
falsification assertion. CIB at 14 (arguing that the ALJ thus reviewed this
assertion only out of “an abundance of caution”). But although it is true that
at this stage AirTran did not have to prove the truth of this assertion,
AirTran did have to provide a legitimate and nondiscriminatory reason and then
Majali had to show that it was false.[15]
Thus the ALJ’s
[Page 17]
discussion was necessary. Moreover, although it is not clear
whether by finding this reason “deficient” the ALJ intended to convey that it
was not legitimate, or that it was false, the ALJ clearly rejected this reason.
AirTran does not
otherwise appear to argue that there was a lack of substantial evidence for the
ALJ’s finding that the falsification reason “deficient.” In its most pertinent
sections, AirTran’s brief argues as follows:
Blinde indicated
that statements made about Complainant’s conduct during the course of the FAA
revenue flight investigation led to his termination and as [the ALJ]
emphatically found, was [sic] through these statements that Respondent learned
of Complainant’s direction to a subordinate to falsify records. (Recommended
Decision & Order P. 76 [sic – presumably intended to be 36]). The
substantial evidence shows that it was the attempted falsification, rather than
any protected activity, which was the justification for Respondent’s
termination of Complainant.
RB at 9 (emphasis added).
Even if the
quoted passage represents an attempt by AirTran to contest the ALJ’s finding,
the attempt does not succeed. The italicized sentence – the only sentence in AirTran’s
brief that could possibly constitute such an attempt – fails to offer any
argument whatsoever in support of its assertion. Although it cites Blinde’s
testimony, it does not even attempt to address the key evidence relied upon by
the ALJ – for example, AirTran’s failure to ask Drivas, Morrison, or Majali
about O’Sullivan’s testimony, or to investigate the allegation in any other
way. Therefore, AirTran fails to show that the ALJ’s finding was not supported
by substantial evidence.
[Page 18]
Ten-month absence
Majali argues
vigorously that the ALJ erred in “[coming] up with an alternative ground for
AirTran’s decision,” namely, that “[i]t is valid for an employer to terminate
an employee who has not actually reported to work in ten months.” CIB at 3. According to Majali, “AirTran never argued this alternate ground as a basis for
termination.” CIB at 4 (citing pages 58-64 of “AirTran’s Trial Brief” [presumably,
AirTran’s post-hearing brief rather than its 13-page pre-hearing brief]).
AirTran does not
contest Majali’s assertion that an ALJ must not require a complainant to prove
pretextual a reason that a respondent did not ever articulate, and because the
proposition has some support in federal case law (and does not affect the
outcome of this case) we do not take issue with it.[16]
[Page 19]
AirTran also
appears to concede that it did not, in fact, articulate this particular reason
to the ALJ. Although it contends to us that the decision to terminate Majali’s
employment was based not only upon O’Sullivan’s allegation but also upon the
fact that Majali did not return to work for ten months, AirTran does not argue
that it did articulate this ground to the ALJ, nor does it reference any
testimony, pleading, or other evidence that any such argument was made. RB
14-16.
In its
pre-hearing submission, AirTran certainly did not articulate Majali’s ten-month
absence as a reason for the termination. See AirTran Airways’
Pre-Hearing Brief at 9-10 (stating that “[t]he termination . . . was the result
of . . . sworn testimony establish[ing] that Majali directed a subordinate
to falsify a document.”) (emphasis in original), 10 (arguing that Majali
“invoked AIR 21 for the purpose of demanding self-enriching severance”).
We recognize
that in its post-hearing brief AirTran did state that one reason it “suspended
and later terminated” Majali’s employment was Majali’s “failure to timely
return to work after his July 2002 vacation.” RPHB at 58. But AirTran
explained that by this assertion it meant Majali’s absence during July 8-10,
and did not make any statement that could be interpreted as a reference to
Majali’s absence during the next ten months. See RPHB at 62-63
(referring only to the “additional three days off,” “the extra days off,”
“those three days,” and “the additional days off”).
In a subsequent
section of its post-hearing brief, AirTran argued that it “would have suspended
and subsequently terminated” Majali’s employment regardless of any protected
activity. RPHB at 64. Again, however, AirTran made no reference to
Majali’s ten-month absence and instead referred only to the fact that he “did
not come back to work on July 24, 2002 after being specifically directed to do
so.” RPHB at 64.
Because it is
clear that AirTran did not ever articulate as a reason for its actions Majali’s
ten-month absence, we conclude that there is no evidence supporting the ALJ’s
finding that AirTran terminated Majali’s employment because of that absence.
Failed negotiations
The ALJ did not
rely solely upon Majali’s ten-month absence in finding that AirTran had not
discriminated, however. The ALJ also found that AirTran had given another
reason for the termination: that the negotiations for Majali’s return had
“proved to be fruitless.” R. D. & O. at 37.
[Page 20]
Majali does not
argue that AirTran did not articulate this reason. Rather, he argues that the
evidence does “not support[]” the ALJ’s finding that the negotiations “‘were
complicated by Complainant’s repeated threats and unreasonable demands.’” CIB at 10 (quoting R. D. & O. at 39).
First, Majali
argues that the ALJ found him a “credible witness” and that “there is no
finding that Majali was not credible in regard to the negotiations.” CIB at 10. But the ALJ’s finding that Majali was generally credible does not cast doubt upon
either the fact that the negotiations were fruitless, or the finding that
Majali’s demands were unreasonable.
Second, Majali
argues that the ALJ did not “specif[y] . . . the basis” for her finding that
his demands were unreasonable, and notes that he made his offers in response
to Blinde’s request that he “suggest[] . . . a ‘separation package.’” CIB at 10. But it was not the making of the settlement offers that the ALJ found unreasonable,
but rather the substance of Majali’s offers – which the ALJ did specify, see
R. D. & O. at 22-24 (noting, for example, that Majali opened
negotiations by proposing “three years of pay, one year of medical benefits,
six months of flight privileges, and a letter of recommendation” and that in
Majali’s final offer he demanded “reinstatement and compensation of back pay”).
Third, Majali
argues that the ALJ failed to discuss in her analysis the facts “that on August 16, 2002 [Majali] had offered to accept reinstatement” so long as AirTran did not
impose any conditions upon him, and that AirTran had refused the offer. CIB at 10. Although Majali does not specify what conclusion he would have us draw from any such
omission, presumably he would have us conclude from his offer to return that
his demands were reasonable and that the failure of the negotiations was AirTran’s
fault.
But the ALJ
specifically found both that Blinde had “construed [Majali’s] offers to return to
work as equivocal” and that as of August 16 Blinde already had reached the
“opinion” that “reconciliation” was “unlikely.” R. D. & O. at 39; see
also R. D. & O. at 23 (Blinde testified that he believed that it would
be “fruitless” to allow Majali to return to work). The ALJ also noted in her
summary of the evidence that Majali’s August 16 offer to return also raised
settlement as an equally desirable option. Moreover, as we noted in the
background section, Majali’s offer to return was only valid so long as he was
not asked to “sign[] any papers or releases.” Therefore, we conclude that
substantial evidence supports the ALJ’s finding that Blinde believed Majali’s
demands were unreasonable and rejected them on this basis.
Conclusion
Although the ALJ did
not find that performance was the basis for the termination, rejected AirTran’s
falsification reason outright, and relied upon a reason that AirTran did not
articulate, the ALJ also found that Majali had failed to demonstrate that AirTran’s
alternate reason – Majali’s unreasonable demands and the consequent failed
negotiations
[Page 21]
– was a pretext for discrimination. The ALJ was aware that Majali
had proven AirTran’s primary reason false, and the ALJ might have determined from
that falsity that discrimination was at least a contributing factor in the
termination.[17]
The ALJ was not required to do so, however, and based upon the totality of the
evidence she found that discrimination did not play a part in AirTran’s
termination decision. Majali has not
shown that this finding was not supported by substantial evidence, so we must
accept it – and thus we have no reason not to affirm the ALJ’s decision.
Therefore, we AFFIRM the ALJ’s decision and DISMISS Majali’s complaint.
SO ORDERED.
A. LOUISE OLIVER
Administrative Appeals Judge
OLIVER M. TRANSUE
Administrative Appeals Judge
[1] During February Aircraft 935 was scheduled
for both a 3L (lubrication) and a “heavy” (comprehensive) maintenance check.
R. D. & O. at 11; RX 39 at 1-2. For ease of reference, we refer to both
together as “the maintenance check.”
[2] AirTran does not argue that it terminated
Majali’s employment because he had obtained another job.
[3] We have jurisdiction to review the ALJ’s
recommended decision. See 49 U.S.C.A. § 42121(b)(3) (giving Secretary
of Labor authority to issue decisions under AIR 21’s employee protection
provision); Secretary’s Order 1-2002, 67 Fed. Reg. 64,272 (Oct. 17, 2002)
(delegating to ARB the Secretary’s authority to issue final orders under, inter
alia, AIR 21 § 42121); 29 C.F.R. § 1979.110 (2007) (providing for ARB review of
ALJ decisions issued under AIR 21).
[4] See 49 U.S.C.A. § 42121(a), (b); Peck v. Safe Air Int’l,
Inc., ARB No. 02-028, ALJ No. 2001-AIR-3, slip op. at 6-10 (ARB Jan. 30,
2004) (explaining “scope of coverage, procedures, and burdens of proof under AIR 21”).
[5] Peck, slip op. at 8-10; see 49 U.S.C.A. §
42121(b)(2)(B)(iv) (“Relief may not be ordered . . . 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
[i.e., the activity protected by AIR 21].”).
[6] See 29 C.F.R. § 1979.110(b)
(providing that ARB must “review the factual determinations of the [ALJ] under
the substantial evidence standard”).
[7] See Peck, slip op. at 5-6 (holding
that in AIR 21 cases, ARB reviews questions of law de novo).
[8] We thus have no occasion here to decide
whether a communication must include new information in order to be protected.
[9] See 29 C.F.R. § 1979.110(a) (AIR 21 “petition for review must specifically identify the findings, conclusions or orders to
which exception is taken. Any exception not specifically urged ordinarily
shall be deemed to have been waived by the parties”); see also Talukdar v.
U.S. Dep’t of Veteran Affairs, ARB No. 04-100, ALJ No. 2002-LCA-25, slip
op. at 8 (ARB Jan. 31, 2007) (noting in LCA case that “[t]he Board reviews only
those aspects of the ALJ decision that are specified in the petition for review
and listed in the Board’s notice of review.”), 14 (holding appellant had
forfeited argument that was not raised in petition for review); Bauer v.
U.S. Enrichment Corp., ARB No. 01-056, ALJ No. 2001-ERA-9, slip op. at 4 &
n.3 (ARB May 30, 2003) (declining to consider argument raised only in rebuttal
brief and neither raised to ALJ nor included in petition for review); Thomas
& Sons Bldg. Contractors, Inc., ARB No. 98-164, ALJ No. 1996-DBA-33,
slip op. at 2 n.1 (ARB Oct. 19, 1999) (declining to consider issues raised for
first time in rebuttal brief and not raised in petition for review).
[10] See, e.g., Anderson v. Metro Wastewater
Reclamation Dist., ARB No. 01-103, ALJ No. 1997-SDW-7, slip op. at 9 (ARB
May 29, 2003) (issues raised for first time on appeal are not considered)
(citing Singleton v. Wulff, 428 U.S. 106, 119 (1976); see also NLRB
v. General Teamsters Union Local 662, 368 F.3d 741, 746 (7th Cir. 2004)
(affirming that argument not made to ALJ cannot be made before NLRB); Trident
Seafoods, Inc. v. NLRB, 101 F.3d 111, 116-17 (D.C. Cir. 1996) (same); United
States v. Bongiorno, 106 F.3d 1027, 1034 (1st Cir. 1997) (“[M]atters
not squarely presented below generally cannot be advanced on appeal.”); Finch
v. Hughes Aircraft Co., 926 F.2d 1574, 1576 (Fed. Cir. 1991) (“It is
well-settled that, absent unusual circumstances, a party cannot raise on appeal
issues not raised and considered in the trial forum.”).
[11] The ALJ appears to have applied an outdated
distinction between what she called “direct” and “circumstantial” evidence. R.
D. & O. at 35-37. This distinction, which was suggested by a concurrence
in a 1989 Supreme Court decision, was later expressly repudiated by that Court,
which stated: “the reason for treating circumstantial and direct evidence alike
is both clear and deep-rooted: ‘Circumstantial evidence is not only sufficient,
but may also be more certain, satisfying and persuasive than direct
evidence.’” Desert Palace, Inc. v. Costa, 539 U.S. 90, 100 (2003); see Price Waterhouse v. Hopkins, 490 U.S. 228, 276 (1989) (O’Connor, J.,
concurring) (suggesting that burden would shift to employer only if plaintiff
proved discrimination by “direct evidence”). Therefore, it is not necessary to
distinguish between “direct” and “circumstantial” evidence in assessing whether
a complainant has proven causation. Indeed, as the Supreme Court has stated,
“proof that the defendant’s explanation is unworthy of credence is . . . one
form of circumstantial evidence.” Reeves v. Sanderson Plumbing Prods.,
530 U.S. 133, 147 (2000).
The ALJ may have been referring to a separate
distinction that is sometimes made – that between “direct” proof of causation,
and proof by means of the McDonnell-Douglas burden shifting framework.
A complainant who proves causation directly – i.e., without resort to the McDonnell-Douglas
burden shifting analysis – is entitled to a mixed-motive analysis. See,
e.g., Klopfenstein v. PCC Flow Techs. Holdings, Inc., ARB No. 04-149, ALJ
No. 2004-SOX-11, slip op. at 19 (ARB May 31, 2006) (quoting Rachid v. Jack
in the Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004) (noting that mixed
motive analysis is applicable when the defendant had at least one valid reason,
but “the defendant’s reason, while true, is only one of the reasons for its
conduct, and another ‘[contributing] factor’ is the [complainant’s] protected
[conduct].”). As we noted earlier, under this mixed-motive analysis the burden
of proof shifts to the respondent, who must then prove by “clear and convincing
evidence” that it would have taken the adverse action regardless of the
complainant’s protected activity.
But a complainant need not prove causation “directly”
in order to merit a mixed-motive analysis. Where a respondent articulates more
than one reason for its actions and a complainant proves at least one of those
reasons false, a factfinder is permitted (though not required) to conclude that
the complainant has shown that protected activity was at least a contributing
factor to the decision. See, e.g., Wilson v. AM Gen. Corp., 167 F.3d
1114, 1120 (7th Cir. 1999) (“Generally the employee has the burden of
demonstrating that each proffered nondiscriminatory reason is pretextual,” but
“[t]here may be cases in which . . . the pretextual character of one [reason]
is so fishy and suspicious[] that the plaintiff may prevail.”).
Because it is not necessary – and may be confusing –
for an ALJ to divide an analysis into “direct” and “indirect” sections, it would
have been preferable if the ALJ had not done so. Nonetheless, the ALJ’s
approach did not affect the substantive outcome of this case.
[12] Because the ALJ in her analysis of causation
used the terms “nexus” and “inference,” see R. D. & O. at 37, which
we generally have used to describe a complainant’s prima facie burden rather
than the burden he bears after the respondent has articulated its reasons, it
is also possible to read the ALJ’s decision as stating that Majali did not make
a prima facie case and thus there was no need to examine AirTran’s reasons.
The better reading, however, is that the ALJ did not intend by the use of these
terms to indicate that the analysis was still at the prima facie stage. First,
the discussion in which the ALJ used the terms “nexus” and “inference” came
only after the ALJ had concluded that Majali had “already shown by a
preponderance of the evidence [coverage, protected activity, adverse
action, and knowledge].” R. D. & O. at 35 (emphasis added); see also T.
at 355 (denying AirTran’s motion for judgment as a matter of law because “I
think he has established enough evidence to get him over the threshold for a prima
facie case”). The ALJ thus indicated that her causation analysis would be
applying the preponderance-of-the-evidence burden appropriate at the hearing
stage, rather than the prima facie burden appropriate at that earlier stage.
Second, the ALJ explained that in her analysis of causation she would be
examining whether Majali had “establish[ed] . . . discrimination” – that is,
whether he had “show[n] . . . that his protected activity was a contributing
factor to the adverse action.” R. D. & O. at 35. The term “contributing
factor” properly describes a complainant’s ultimate burden rather than his prima
facie burden. Finally, when summarizing her analysis, the ALJ stated that
AirTran “has articulated a nondiscriminatory basis for its action, and
Complainant has failed to demonstrate that the reasons proffered . . .
were a pretext. . . . As Complainant is unable to prove that his protected
activity was a contributing factor to the adverse action . . . Complainant has
failed to establish an essential element of his claim.” R. D. & O. at 41
(emphasis added). Thus the ALJ appears to have understood her analysis to have
been an examination of whether AirTran’s articulated reasons were true followed
by a finding on the ultimate question of discrimination, rather than a
discussion about whether Majali had raised an inference of discrimination and
thereby required AirTran to articulate its reasons. Therefore, despite the
ALJ’s use of the terms “nexus” and “inference,” we interpret her decision as
reaching the ultimate question and finding that Majali did not prove
discrimination by a preponderance of the evidence.
[13] Our review of the record in this instance
should not be taken as an indication that we generally will review the record
in order to determine whether a party has argued a point to the ALJ. Each
party has the obligation to support its own argument and counter those of its
opponent, with citations to the record. Failing to make such citations
justifiably could be construed as waiver of the argument.
[14] Nor did the ALJ find that AirTran would
have terminated Majali’s employment based upon performance. To find that
performance “would have been reason enough” to terminate is not at all the same
as finding that termination would have occurred due to performance.
[15] The ALJ’s discussion of this point was
somewhat confusing. After the ALJ determined that Majali had not proven
causation either “directly” or through “circumstantial evidence,” she
“[a]ssume[ed], arguendo, that [Majali] ha[d] established that his protected
activity contributed to the adverse employment actions taken against him” and
then proceeded to determine that AirTran “ha[d] established that
management had legitimate business reasons” for its actions. R. D. & O. at
37 (emphasis added). By using the term “established” and by stating that “the
weight of the evidence” supported AirTran’s reason for the suspension, the ALJ
suggested that, “arguendo,” she had placed the burden of proof upon AirTran to
show that its reasons were true. Of course, a respondent does not have to
prove its reasons true but merely must articulate them with sufficient
specificity to allow a complainant a full and fair opportunity to prove them
false. See, e.g., Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 255-56 (1981) (“The defendant must clearly set forth . . . the reasons for the
plaintiff’s rejection . . . [and thus] frame the factual issue with sufficient
clarity so that the plaintiff will have a full and fair opportunity to
demonstrate pretext.”). Thus the appropriate inquiry in an initial examination
of the respondent’s reasons is whether the complainant has proven any of them
false or insufficient to explain the challenged action. If the complainant has
done so, then the ALJ must determine whether such proof, in combination with
the totality of evidence in the record, shows that protected activity was
indeed a contributing factor in the adverse action. Only if the ALJ determines
that it was a contributing factor must the respondent show (by clear and
convincing evidence, in an AIR 21 case) that it would have taken the adverse
actions regardless whether the complainant had engaged in protected activity.
Despite the suggestion inherent in the terminology the
ALJ used in beginning her analysis, it is not clear that the ALJ ever actually
placed the burden of proof upon AirTran to prove this reason. (There is
certainly no evidence that she applied a clear and convincing evidence
standard.) Because AirTran does not argue that the ALJ erred in any way, let
alone by requiring AirTran to prove this reason true rather than by requiring
Majali to prove it false, we need not determine how the ALJ actually applied
the burden of proof in examining this reason.
[16] See, e.g., Uviedo v. Steves Sash &
Door Co., 738 F.2d 1425, 1429-30 (5th Cir. 1984) (affirming district
court’s reversal of magistrate, and explaining that “appellant . . . argues
that the record is replete with nondiscriminatory reasons for [the challenged
actions.] . . . It is certainly possible that these facts could be legitimate
reasons . . . . The difficulty here, however, is that [appellant] never
articulated to the magistrate that these were in fact the reasons . . .
. It is beyond the province of a trial or reviewing court to determine – after
the fact – that certain facts in the record might have served as the basis for
an employer’s personnel decision.”) (emphasis in original), modified on
other grounds on reh’g, 753 F.2d 369 (5th Cir, 1985); EEOC v. West Bros.
Dep’t Store, 805 F.2d 1171, 1172 (5th Cir. 1986) (reversing district court
judgment, based upon alternate reason created by district court, because “[w]e
are concerned with what an employer’s actual motive was; hypothetical or post
hoc theories really have no place in a [discrimination] suit” and to allow
them “would mean that the district court [would] assume [defendant employer’s]
burden by creating a non-discriminatory reason”); IMPACT v. Firestone,
893 F.2d 1189, 1194 (11th Cir. 1990) (holding, relying upon Uviedo, that
“there must be evidence that asserted reasons for discharge were actually
relied on”); Bell v. A.T.&T., 946 F.2d 1507, 1514 (10th Cir. 1991)
(remanding because district court had surmised from testimony of a plaintiff’s
witness – and then relied upon – an additional reason not presented by the
employer, and explaining that “when the trial court relies on what it considers
to be a legitimate reason not articulated by the employer . . . a plaintiff
does not have a full and fair opportunity to demonstrate pretext or otherwise
contradict the rationale of the district court”); Smith v. Davis, 248 F.3d
249, 252 (3d. Cir. 2001) (reversing district court’s grant of summary judgment
to employer after finding, relying upon IMPACT, that defendant’s
explanation was not legally sufficient because defendant had not presented
evidence that it actually relied upon articulated reason); Neal v.
Roche, 349 F.3d 1246, 1250 (10th Cir. 2003) (reaffirming Bell); see
also Considine v. Newspaper Agency Corp., 43 F.3d 1349, 1365 (10th Cir.
1994) (affirming district court’s denial of plaintiff’s motion for judgment as
a matter of law because, in part, “[p]laintiffs . . . can point to no evidence
. . . that the district court . . . crafted its own reason . . . that [the
employer] never proffered”). Compare Miller v. WFLI Radio Inc., 687
F.2d 136, 138-40 (6th Cir. 1982) (where magistrate had developed second reason
(additional to well-articulated reason) that employer had not clearly raised,
majority remanded to give plaintiff chance to show that second reason was
pretext while dissent argued that employee had proven well-articulated reason
pretext and thus should prevail). Because we affirm the ALJ’s decision to
dismiss the complaint, we need not determine the interaction between these
cases and the explanation in Reeves that “there will be instances where,
although the plaintiff . . . set forth sufficient evidence to reject the
defendant’s explanation, . . . the record conclusively revealed some other,
nondiscriminatory reason for the employer’s decision.” Reeves, 530 U.S. at 148.
[17] See Reeves, 530 U.S. at 146-47
(clarifying that a false explanation by the employer permits, but does not
require, a finding that discrimination played a part in the decision); Wilson,
167 F.3d at 1120 (noting that the falsity of one explanation may at times
justify judgment for the plaintiff, even if the employer’s other reasons are
not proven false). Majali does not argue that the ALJ was unaware that if,
appropriate, she could find discrimination based upon the falsity of just one
of the Respondent’s reasons.
