“[n]ot until long after [the employee]’s discharge did [the employer] allege the other four reasons, tending to suggest those reasons are a mere litigation figment”
How later courts described this case
- “[n]ot until long after [the employee]’s discharge did [the employer] allege the other four reasons, tending to suggest those reasons are a mere litigation figment”
Written by the judges who cited it.
The opinion
Case: 10-60604 Document: 00511569143 Page: 1 Date Filed: 08/11/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 11, 2011
No. 10-60604
Lyle W. Cayce
Clerk
AMERISTAR AIRWAYS, INCORPORATED; AMERISTAR JET CHARTER,
INCORPORATED,
Petitioners
v.
ADMINISTRATIVE REVIEW BOARD, UNITED STATES DEPT OF LABOR,
Respondent
Petition for Review of the Final Decision and Order of the
United States Department of Labor Administrative Review Board
Before HIGGINBOTHAM, OWEN, and HAYNES, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
Thomas E. Clemmons, the former director of operations for Ameristar
Airways, filed a complaint with the Secretary of Labor alleging he was
discharged in retaliation for reporting air safety issues to the Federal Aviation
Administration. The Department of Labor Administrative Review Board found
a violation of the employee protection provision of the Wendell H. Ford Aviation
Investment and Reform Act for the 21st Century (“AIR21”),1 ordering an award
1
49 U.S.C. § 42121; see also 29 C.F.R. Part 1979.
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of back pay.2 We affirm the finding of liability but remand to the agency for
additional findings regarding the amount of back pay.
I
A
Clemmons was hired by Ameristar Airways in September 2002. As
director of operations, Clemmons was responsible for hiring and scheduling
pilots, maintaining pilot training records, and updating manuals and required
navigational information (known in industry parlance as “charts”).
Soon after he was hired, Clemmons fielded several pilot complaints about
pay and duty-time violations. Under FAA regulations, each flight crew member
must be relieved from duty for at least 8 consecutive hours during any 24-hour
period.3 On December 17, Clemmons sent an email to Ameristar president
Thomas Wachendorfer, manager Lindon Frazer, and head of dispatch Stacy
Muth, notifying them that pilots were being pushed to work beyond the duty-
time limits and that this was a violation of FAA regulations.
Clemmons also raised concerns about Ameristar’s maintenance log policy,
which required pilots to confer with officials at company headquarters before
recording any maintenance issues in their logbooks. Clemmons complained to
company management that he believed this a violation of federal regulations.
On December 31, Clemmons complained to Muth that Ameristar Airways
was sharing another airline’s call sign without FAA approval, another violation
of federal regulations. Clemmons offered to begin the process of requesting a
2
Clemmons v. Ameristar Airways, Inc., No. 08-067, 2010 WL 2158230 (Dep’t of Labor
Admin. Rev. Bd. May 26, 2010).
3
See 14 C.F.R. § 125.37.
2
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new call sign for Ameristar flights, but he was instructed by Frazer not to do so.
Ameristar was later fined $123,000 for this violation.
On January 7, Clemmons and his chief pilot, Brent Barker, held a meeting
with FAA official Ron Brown. The meeting took place in Clemmons’s office at
Ameristar headquarters and was made known to Ameristar management.
Clemmons and Barker discussed with Brown their concerns about duty-time
violations and improper call sign use. Later that month, Frazer recommended
to Wachendorfer that Clemmons be terminated; Wachendorfer concurred.
Clemmons was officially terminated on January 20, 2003.
B
The record also reflects allegations by Ameristar that Clemmons had
significant performance and disciplinary issues during his brief period of
employment.
Clemmons was charged with keeping charts, pilot records, and manuals
up to date. An internal audit of Ameristar’s pilot records in November 2002
determined that certain training records were deficient. A follow-up audit in
January 2003 found some records still incomplete. Ameristar also received a
pilot complaint in mid-December stating that the pilot was “unsure” if his charts
were current, although it was later determined that they were. Ameristar
further complains that Clemmons did not complete any updates to its
operational manuals before he was terminated.
On January 16, shortly before his termination, Clemmons assisted a pilot
with a revenue flight that was scheduled to transport 24 pallets of freight.
Clemmons and the pilot were only able to load half the pallets onto the flight
because the customer had provided incorrect pallet dimensions. After
Wachendorfer intervened and instructed the pilot on how to load the pallets,
3
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they were able to successfully load 20 of the 24 pallets onto the plane, eight more
than Clemmons and the pilot had previously been able to fit.
Clemmons and Wachendorfer also had disputes over pilot scheduling.
Following management’s instruction to arrange a “two weeks on and one week
off” schedule, Clemmons attempted to prepare pilot schedules with 14 days on
and 7 days off. Each of Clemmons’s schedules was reviewed and approved by
Frazer before the schedules were sent out to the pilots. On January 9,
Wachendorfer sent a memo to Clemmons, copying Frazer, stating that the
approved schedules were unsatisfactory. After consulting with Muth, Clemmons
submitted a revised schedule, which Wachendorfer again rejected.
Wachendorfer eventually had Frazer create a substitute schedule with 15 days
on and 6 days off.
On January 13, Clemmons sent an email to the pilots explaining that,
although he prepared a schedule with 14 days on and 7 days off, he was
overruled by Wachendorfer. The email voiced several other complaints about
Ameristar management and referred mockingly to Wachendorfer as “Mr.
Wackmeoffendorfer.” Clemmons told the pilots that he was hoping to leave the
company soon, and he offered to support any pilots who wished to quit the
company by assisting them with their resignation letters and supporting their
unemployment claims. Although Clemmons now acknowledges that this email
was insubordinate, unprofessional, and grounds for termination, the record
indicates that Ameristar was not aware of the email or its contents until March
28, two months after Clemmons’s January 20 termination.
C
Following his termination Clemmons filed a claim for unemployment
benefits from the Texas Workforce Commission; Ameristar contested the claim.
In filings submitted to the commission on February 5 and March 31, Ameristar
4
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stated that Clemmons was fired for failing to produce the most economical pilot
work schedules. In a third filing on April 4, Ameristar again cited problems with
pilot scheduling as well as the January 16 freight-loading incident.
Based on the filings, the Commission ordered an award of unemployment
benefits. Ameristar appealed. At a hearing on June 30, Ameristar for the first
time raised the insubordinate email as a reason for termination. The
Commission eventually reversed its earlier award after determining that
Clemmons’s insubordination rendered him ineligible for unemployment benefits.
D
Clemmons filed a timely complaint with the Secretary of Labor, alleging
he was discharged in violation of AIR21’s employee protection provision. An
administrative law judge received live testimony and evidence at a four-day
hearing in July 2004 and a two-day hearing in September 2004. Based on the
hearings, exhibits, and post-hearing briefs submitted by the parties, the ALJ
found Ameristar liable for retaliation and ordered an award of back pay,
interest, costs, and attorneys’ fees. Ameristar appealed to the Administrative
Review Board, which vacated and remanded because of legal error. On remand
under the proper legal standard, the ALJ again found Ameristar liable and
reinstated the award. Adopting the ALJ’s factual findings, the Board affirmed.
II
We may not set aside Board’s decision unless it is “arbitrary, capricious,
an abuse of discretion, or otherwise contrary to law.”4 We review an
administrative agency’s conclusions of law de novo and its findings of fact for
4
Willy v. Admin. Rev. Bd., 423 F.3d 483, 490 (5th Cir. 2005) (citing 5 U.S.C. § 706(2)).
5
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substantial evidence.5 We examine the entire record, considering the evidence
on both sides,6 and must affirm the Board’s decision unless it would not be
possible for a reasonable trier of fact to agree with its conclusions.7 We are
especially reluctant to disturb an agency determination where, as here, the
Board upholds the findings of an administrative law judge who conducted live
hearings.8
The Administrative Review Board evaluates AIR21 claims under the
McDonnell Douglas burden-shifting framework.9 The complainant bears the
initial burden of presenting a prima facie case,10 which for an AIR21 retaliation
claim requires (1) that the complainant engaged in protected activity; (2) that
the employer had knowledge of this activity; (3) that the complainant suffered
an “unfavorable personnel action”; and (4) that the circumstances “raise the
inference that the protected activity was a contributing factor in the unfavorable
action.”11 The burden then shifts to the employer to proffer a legitimate,
non-retaliatory reason for its action.12 The employer’s burden is only one of
production, not persuasion; the complainant at all times retains the ultimate
burden of persuading the trier of fact that his protected activity was a
5
Id.; McCoy v. R.R. Retirement Bd., 935 F.2d 87, 88 (5th Cir. 1991).
6
Universal Camera Corp. v. NLRB, 340 U.S. 474, 487–88 (1951).
7
Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 366–67 (1998).
8
See, e.g., NLRB v. Cal-Maine Farms, Inc., 998 F.2d 1336, 1342–43 (5th Cir. 1993).
9
See Peck v. Safe Air Int’l, Inc., No. 02-028, 2004 WL 230770, at *7 (Dep’t of Labor
Admin. Rev. Bd. Jan. 30, 2004) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792,
(1973)).
10
McDonnell Douglas, 411 U.S. at 802.
11
29 C.F.R. § 1979.105(b)(1); see 49 U.S.C. § 42121(b)(2)(B)(i).
12
Tex. Dep’t of Cmnty. Affairs v. Burdine, 450 U.S. 248, 255–56 (1981).
6
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contributing factor in the personnel action.13 Once the employer supplies a
permissible justification, the burden then shifts back to the complainant to show
that the employer’s explanation is pretextual—that the proffered explanation
was not the true reason for its decision.14
Once the complainant adduces evidence of pretext, the burden-shifting
framework drops out and the trier of fact is left to decide, by a preponderance of
the evidence, the “ultimate question” of whether the complainant’s protected
activity was a contributing factor in the employer’s decision.15 A prima facie case
of retaliation combined with evidence of pretext may be sufficient for the trier
of fact to find liability; no additional evidence is required.16
Even where the complainant succeeds at proving a violation, AIR21 offers
an affirmative defense that may allow the employer to avoid liability. Under
this provision, no relief may be granted “if the employer demonstrates by clear
and convincing evidence that the employer would have undertaken the same
unfavorable personnel action in the absence of” the complainant’s protected
activity.17
III
A
We have little trouble concluding that Clemmons presented a prima facie
case of retaliation. It is undisputed that Ameristar was aware of Clemmons’s
13
Id.; see also id. at 253.
14
McDonnell Douglas, 411 U.S. at 804–05.
15
St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993); see 49 U.S.C. § 42121(a),
(b)(2)(B)(iii).
16
Reeves v. Sanderson Plumbing Prods., Inc. 520 U.S. 133, 147–48 (2000).
17
49 U.S.C. § 42121(b)(2)(B)(iv); see also 29 C.F.R. § 1979.109(a).
7
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protected activities and that Clemmons was subsequently discharged. This
leaves only the question of whether the protected activity was “a contributing
factor” to the discharge.
We have held that a contributing factor “is any factor, which alone or in
combination with other factors, tends to affect in any way the outcome of the
decision.”18 Under Department of Labor regulations, “Normally the burden is
satisfied . . . if the complaint shows that the adverse employment action took
place shortly after the protected activity, giving rise to the inference that it was
a factor in the adverse actions.”19 Clemmons complained of federal safety
violations to Ameristar management on December 17; he complained to a
Federal Aviation Administration official on January 7; and he was fired on
January 20. This satisfies Clemmons’s burden for establishing a prima
facie case.
B
Ameristar proffered six distinct non-retaliatory reasons for Clemmons’s
discharge. We agree with the ALJ and the Board that Clemmons adduced
sufficient evidence for a trier of fact to find each of these reasons pretextual:
1. Pilot confusion over charts. Although Ameristar did receive
a complaint from a pilot who was “unsure” if he had the right
charts, it was ultimately determined that the charts were
correct and up to date. There is no evidence that Clemmons
made any mistake or failed to follow adequate procedures in
managing the navigational charts.
2. Failure to update operational manuals. Ameristar complains
that Clemmons never completed any update to its manuals
18
Allen v. Admin. Rev. Bd., 514 F.3d 468, 476 n.3 (5th Cir. 2008) (internal quotation
marks omitted).
19
29 C.F.R. § 1979.104(b)(2).
8
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during his short time with the company. It admits, however,
that it never reviewed the manuals until after Clemmons’s
discharge, so this could not have been the actual reason for
his termination. Further, there has been no showing that the
manuals were deficient or that any of Clemmons’s
predecessors were terminated for failing to keep up-to-date
manuals before he was hired.
3. Failure to maintain pilot training records. The November
2002 internal audit, occurring two months after Clemmons
was hired, alleged certain deficiencies in Ameristar’s pilot
training records. The airline’s training records were then
approved by the FAA in December 2002, indicating that any
deficiencies were minor. A second internal audit in January
2003 found that some records had been corrected, but not all.
Given the limited significance of the errors, the progress in
correcting them, and the short time frame involved, there is
little indication that the alleged errors could have supported
Clemmons’s termination.
4. Pilot scheduling disputes. All of Clemmons’s pilot schedules
were approved by Frazer. Wachendorfer concedes that he
never criticized Frazer for the schedules, only Clemmons.
Wachendorfer claimed at a live hearing that Clemmons’s
schedules provided insufficient crew coverage, but he was not
able to produce any schedules supporting that charge.
Wachendorfer was not otherwise able to clearly articulate
what, if anything, was inadequate about Clemmons’s
schedules.
5. The insubordinate email. We agree that the contents of
Clemmons’s email to the pilots could provide unassailable
grounds for termination. The record indicates, however, that
Ameristar management was not aware of this email until
March 28, more than two months after Clemmons was
terminated, and therefore it could not have been the actual
basis for his termination. Additionally, Ameristar did not
identify the email as a ground for termination in either its
February 5 or March 31 responses to Clemmons’s claim for
unemployment benefits.
9
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6. The freight-loading incident. The evidence indicates that this
incident was caused by the customer providing incorrect
pallet measurements, not because of any evident error by
Clemmons. Wachendorfer admitted at the live hearing that
no other employee, including the other pilot involved in this
incident, has been fired for an incident like this.
The Board further concluded that an inference of pretext could be drawn
from Ameristar’s shifting explanations. In its filings with the Texas Workforce
Commission shortly after Clemmons’s termination, the board cited only two
reasons for its decision: problems with Clemmons’s pilot schedules and the single
freight-loading incident. At the live hearing in July 2004, Wachendorfer
mentioned only these same two reasons, saying he could not think of any other
reason for the termination. Not until long after Clemmons’s discharge did
Ameristar allege the other four reasons, tending to suggest those reasons “are
a mere litigation figment.”20
C
Having come to the end of the McDonnell Douglas analysis, it falls to the
trier of fact to decide whether Clemmons has shown, by a preponderance of the
evidence, that his protected activity was a contributing factor in his discharge.
Substantial evidence supports the Board’s conclusion that Clemmons satisfied
his ultimate burden.
The agency devoted significant weight to the temporal proximity of
Clemmons’s discharge to his protected activity. Clemmons met with an FAA
official to complain of safety violations on January 7. He was terminated less
20
Marathon LeTourneau Co. v. NLRB, 699 F.2d 248, 252 (5th Cir. 1983); see also
Vieques Air Link, Inc. v. U.S. Dep’t of Labor, 437 F.3d 102 (1st Cir. 2006) (“[T]he fact that an
employer offers shifting explanations for its challenged personnel action can itself serve to
demonstrate pretext.”).
10
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than two weeks later. It is not unreasonable for a trier of fact to think this
timeline gives rise to a natural inference of cause and effect.21
Ameristar insists that the timeline actually undermines Clemmons’s claim
because several of its asserted reasons for termination arose in the time between
the protected activity and the discharge, defeating the inference of causation.
Yet we think the trier of fact could permissibly conclude precisely the
opposite—that the suspicious timing of these performance critiques reveals them
to be mere pretext. Within days of the FAA meeting, Wachendorfer rejected as
unacceptable pilot schedules that were already approved and conformed to prior
management directives; ordered a new audit of all records maintained by
Clemmons; and blamed Clemmons for a freight-loading issue that would
otherwise be attributed to inaccurate information from the customer. Further,
as the Board noted, the ALJ observing Wachendorfer’s demeanor during his live
testimony did not think him credible. We cannot reject the agency’s conclusion
that Ameristar has simply attempted to manufacture facially legitimate reasons
for termination when its true motive was retaliation, at least in contributing
part.
The Board’s conclusion is further supported by other evidence of pretext
and by Ameristar’s shifting defenses. If the trier of fact does not believe the
employer to have given a truthful account of its decision, it is reasonable to infer
that the most likely explanation is the one the employer cannot admit—that it
acted for retaliatory or discriminatory reasons. “Thus,” the Supreme Court has
explained, “a plaintiff’s prima facie case, combined with sufficient evidence to
21
Although carrying significant weight, temporal proximity standing alone is not
enough to sustain the plaintiff’s ultimate burden. As we explain below, Clemmons met his
burden in this case through temporal proximity combined with evidence of pretext. Cf. Evans
v. City of Houston, 246 F.3d 344, 356 (5th Cir. 2001) (“[T]he close temporal proximity between
[the plaintiff’s] appearance at her co-worker’s grievance hearing and her demotion, coupled
with . . . evidence in the form of memoranda written by [the employer] that tend to refute [his]
own justifications for the demotion . . . . supports an inference of retaliation.”).
11
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find that the employer’s asserted justification is false, may permit the trier of
fact to conclude that the employer unlawfully discriminated.”22 Accordingly,
because Clemmons has presented a prima facie case of retaliation and adduced
evidence capable of rebutting Ameristar’s proffered explanations, substantial
evidence supports the Board’s finding of liability.
D
Ameristar also disputes the Board’s rejection of its affirmative defense.
Given the available evidence of pretext, we cannot deem Ameristar’s evidence
so overwhelming that a reasonable trier of fact would be compelled to agree that
Clemmons would have been terminated in the absence of his protected activity,
much less that Ameristar made such a showing by clear and convincing
evidence.23 Substantial evidence therefore supports the Board’s conclusion that
Ameristar did not carry its burden.
IV
Although we affirm the Board’s finding of an AIR21 violation and its
decision to award back pay, there remain questions as to the period it used for
the back pay calculation. The agency awarded back pay from the date of
Clemmons’s termination through July 2004. Ameristar insists that even if
impermissible reasons contributed to its decision to fire Clemmons in January
2003, it nonetheless would have fired Clemmons for permissible reasons when
22
Reeves, 503 U.S. at 148; see id. at 147 (“[O]nce the employer’s justification has been
eliminated, discrimination may well be the most likely alternative explanation, especially
since the employer is in the best position to put forth the actual reason for its decision.”).
23
No party challenges the Board’s reading of the affirmative defense as considering
only the evidence that was available to the employer at the time of its decision, which excludes
the insubordinate email that Ameristar was not aware of until several months later. Cf.
McKennon v. Nashville Banner Publ’g Co., 513 U.S. 352, 360–362 (1995) (after-acquired
evidence of wrongdoing does not bar recovery of back pay).
12
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it learned of the insubordinate email, so back pay may not continue past that
date. The record reflects that Ameristar was aware of the email no later than
March 28, 2003.
The Supreme Court has instructed that “where there is after-acquired
evidence of wrongdoing that would have led to termination on legitimate
grounds had the employer known about it,” back pay should be limited to the
period “from the date of the unlawful discharge to the date the new information
was discovered.”24 The ALJ refused to apply this standard because it believed
Clemmons’s insubordination to have been provoked by Ameristar’s actions.
Perhaps, but that is not the proper inquiry. Ameristar raised the after-acquired
evidence issue in its appeal to the Board, but the Board failed to address it.
Because the question of whether Clemmons’s insubordinate email “was of such
severity that [he] would have been terminated on those grounds alone”25 is a
question of fact, we remand to the agency to make that determination and to
adjust the back pay award if necessary.
AFFIRMED IN PART and REMANDED IN PART.
24
Id. at 362.
25
Id. at 362–63.
13