To prevail in an AIR 21 case, a complainant must prove by a preponderance of the evidence that he engaged in activity the statute protects, that the employer knew about such activity, that the employer subjected him to an unfavorable personnel action, and that the protected activity was a contributing factor in the unfavorable personnel action. 49 U.S.C.A. §§ 42121(a), 42121(b)(2)(B)(iii). If the 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 unfavorable action in the absence of the protected activity. § 42121(b)(2)(B)(iv). See, e.g., Peck v. Safe Air Int'l, Inc., ARB 02-028, ALJ No. 2001-AIR-003, slip op. at 22 (ARB Jan. 30, 2004).
Patino's burden of proof
Initially, the ALJ correctly stated that Patino had the burden of proving that he engaged in protected activity as defined by AIR 21, that his employer was aware of his protected activity, that he suffered an adverse employment action, and that his protected activity was a contributing factor in the adverse action. R. D. & O. at 2, 11.
The ALJ found that Patino's April 28, 2004 letter to the FAA and his May 4, 2004 meeting with the FAA inspectors were protected activities, but determined that Patino presented no evidence that Birken knew of this activity prior to firing him. R. D. & O. at 12. Next, the ALJ found that Patino engaged in protected activity when he delivered his
[Page 6]
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
[Page 7]
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.
Conclusion
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
[ENDNOTES]
1 The following abbreviations shall be used: Recommended Decision and Order, R. D. & O; Complainant's Exhibit, CX; Respondent's Exhibit, RX; Hearing Transcript, TR.
2 AIR 21 extends whistleblower protection to employees in the air carrier industry who engage in certain activities that are related to air carrier safety. The statute prohibits air carriers, contractors, and their subcontractors from discharging or "otherwise discriminat[ing] against any employee with respect to the employee's compensation, terms, conditions, or privileges of employment because the employee (or any person acting pursuant to a request of the employee)" engaged in the air carrier safety-related activities the statute covers. 49 U.S.C.A. § 42121(a). Protected activities under AIR 21 include: providing to the employer or (with knowledge of the employer) the Federal Government "information relating to any violation or alleged violation of any order, regulation, or standard of the Federal Aviation Administration or any other provision of Federal law relating to air carrier safety . . .." 49 U.S.C.A. § 42121(a)(1). See also 29 C.F.R. § 1979.102. While they may be oral or in writing, protected complaints must be specific in relation to a given practice, condition, directive or event. A complainant reasonably must believe in the existence of a violation. Clean Harbors Envtl. Servs. v. Herman, 146 F.3d 12, 19-21 (1st Cir. 1998); Peck, slip op. at 13.