Petition for Review of the Final Decision and Order of the United States Department of Labor Administrative Review Board.
For AMERISTAR AIRWAYS, INCORPORATED, Petitioner: Christopher Edward Howe, Esq., Kelly, Hart & Hallman, L.L.P., Fort Worth, TX.
For ADMINISTRATIVE REVIEW BOARD, UNITED STATES DEPARTMENT OF LABOR, Respondent: Mary J. Rieser, U.S. Department of Labor, Washington, DC.
For THOMAS E. CLEMMONS, JR., Intervenor: Steven K. Hoffman, Esq., James & Hoffman, P.C., Washington, DC.
Before REAVLEY, SMITH, and SOUTHWICK, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
This court previously affirmed the Administrative Law Judge's (" ALJ" ) determination that Ameristar Airways was liable for discharging Thomas Clemmons in violation of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (" AIR21" ), 49 U.S.C. § 42121. We remanded for the determination of a single issue: whether an e-mail found by Ameristar after Clemmons was fired " was of such severity that [he] would have been terminated on those grounds alone . . . ." Ameristar Airways, Inc. v. Admin. Rev. Bd., 650 F.3d 562, 570 (5th Cir. 2011) (alteration in original) (quoting McKennon v. Nashville Banner Publ'g Co., 513 U.S. 352, 362-63, 115 S.Ct. 879, 130 L.Ed.2d 852 (1995)). On remand, the ALJ determined that Ameristar failed to meet the high burden of proof required in AIR21 cases. The decision was affirmed by the Administrative Review Board (" ARB" ). Ameristar now petitions for our review, arguing that it proved the validity of its defense. The petition is DENIED.
FACTUAL AND PROCEDURAL BACKGROUND
In September 2002, Ameristar Airways hired Thomas Clemmons as its Director of Operations. His duties included hiring and scheduling pilots, maintaining training records, and updating manuals and charts.
Soon after he was hired, pilots complained to Clemmons that several of Ameristar's practices violated Federal Aviation Administration (" FAA" ) regulations. Clemmons was told that Ameristar pressured pilots to violate FAA duty-time restrictions, which forbid pilots from being on duty longer than 16 consecutive hours in any 24-hour period. See 14 C.F.R. § 125.37. On December 17, 2002, Clemmons e-mailed Ameristar President Thomas Wachendorfer, Vice President of Operations Lindon Frazer, and Head of Dispatch Stacy Muth to notify them of his concerns about these complaints.
Clemmons also raised concerns about Ameristar's practice of requiring pilots to confer with company officials before recording any maintenance problems in their logbooks. He believed that requirement also violated FAA regulations.
Later that month, Clemmons complained to Muth that Ameristar was sharing another airline's call signal without FAA approval. Clemmons offered to request a new signal for Ameristar flights, but Frazer instructed him not to do so. Ameristar was later fined $123,000 for this violation.
The following week, Clemmons and his chief pilot met with an FAA official at Ameristar's headquarters and reported their concerns about duty-time and call-signal violations. Management was aware of the meeting. Shortly thereafter, Frazer recommended to Wachendorfer that Clemmons be terminated. Wachendorfer agreed. Clemmons was terminated on January 20, 2003.
Throughout the subsequent litigation and unemployment compensation proceedings, Ameristar asserted varying reasons for why Clemmons was terminated. The ALJ determined that Ameristar fired him in violation of 49 U.S.C. § 42121. We affirmed as to liability. Ameristar Airways, 650 F.3d at 570-71. At the current point in the litigation, the only issue is whether an e-mail found by Ameristar after he was fired " was of such severity that [he] would have been terminated on those grounds alone," such that back pay should have ended when the e mail was discovered. Id. at 570 (alteration in original) (quoting McKennon, 513 U.S. at 362-63).
Clemmons was responsible for preparing pilot schedules. Frazer and Wachendorfer instructed Clemmons to prepare a " two weeks on, one week off schedule." Clemmons attempted to prepare those schedules. On January 9, 2003, Wachendorfer sent a memorandum to Clemmons to notify him that the schedule he prepared was unsatisfactory. Clemmons submitted a revised schedule. Wachendorfer ...