Ameristar Airways, Inc., et al. v. Administrative Review Board

Thomas E. Clemmons, the former director of operations for Ameristar Airways, Incorporated (Ameristar), 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 (Board) found a violation of the employee protection provision of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21), 49 U.S.C. 42121, ordering an award of back pay. The court held that because Clemmons had presented a prima facie case of retaliation and adduced evidence capable of rebutting Ameristar's proffered explanations, substantial evidence supported the Board's finding of liability. The court held, however, that because the question of whether Clemmons' insubordinate email, which was after-acquired evidence, "was of such severity that [he] would have been terminated on these grounds alone" was a question of fact, the court remanded to the agency to make that determination and to adjust the back pay award if necessary.