Barker did this, offering evidence that Ameristar's proffered explanation was pretextual. He claims here that the ARB ignored his evidence, yet we find no support for this contention. Rather, we conclude that the ALJ found Ameristar's explanation was more convincing than Barker's, and the ARB concurred. On this record, we cannot agree that the ARB's decision was arbitrary and capricious.
Finally, Barker contends that the ARB was arbitrary and capricious in affirming the ALJ's decision to bar portions of Clemmons's testimony. The ARB found no abuse of discretion in the ALJ's exclusion of the part of Clemmons's testimony that described his theory that he had been fired in retaliation for reporting the company's unsafe aviation practices to the FAA. Barker asserts that Clemmons's excluded testimony would have established a pattern of retaliatory firings by the company. But Clemmons was a manager who was fired individually months earlier. In contrast, Barker was one of six pilots (out of a total of 10) who were laid off just months before the company went under. The ARB viewed the situations as sufficiently inapposite to uphold the ALJ's conclusion that Clemmons was not similarly situated to Barker, making the subject portion of his testimony irrelevant. The ARB also noted that the ALJ permitted Clemmons to provide other relevant testimony. Given the deferential
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standard of review applicable, we cannot agree with Barker that the ARB's conclusion was arbitrary and capricious.
PETITION DENIED.
[ENDNOTES]
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5THCIR. R. 47.5.4.
1 Barker filed suit under a whistleblower protection provision of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century ("AIR 21"), 49 U.S.C. § 42121 (2006).
2 5 U.S.C. § 706 (2006); Willy v. Admin. Review Bd., 423 F.3d 483, 490 (5th Cir. 2005).
3 Willy, 423 F.3d at 490. The ARB reviews an ALJ's factual conclusions in cases like this under a substantial evidence standard and legal conclusions de novo. Guirovici v. Equinix, Inc., ARB Case No. 07-027, 2008 DOLSOX Lexis 52, at *7-8 (Dep't of Labor 2008) (AIR 21 governs complaints filed under the Sarbanes-Oxley Act of 2002 at issue in this case).
4 29 C.F.R. § 1979.107(d) (2008).
5 Allen v. Admin. Review Bd., 514 F.3d 468, 476 (5th Cir. 2008).
6 Id.
7 Sievers v. Alaska Airlines, Inc., ARB Case No. 05-109, 2008 WL 316012, at *3 (Dep't of Labor 2008).