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Legal Memorandum: Discrimination Cases under the AIR 21 Act

Issue: What is the standard of review for discrimination cases brought under the AIR 21 Act?

Area of Law: Administrative Law, Administrative Law & Regulation (Federal and State), Aviation & Transportation Law, Employee Law
Keywords: Discrimination cases; Standard of review; Wendell H. Ford Aviation Investment and Reform Act for the 21st Century
Jurisdiction: Federal
Cited Cases: None
Cited Statutes: 29 C.F.R. § 1979.110(b); 49 U.S.C.A. § 42121; 5 U.S.C.A. § 557(b)
Date: 03/01/2004

Factual determinations of the ALJ are reviewed under the substantial evidence standard.  29 C.F.R. § 1979.110(b).  Questions of law are reviewed de novo.  “[T]he ALJ, as the designee of the Secretary of Labor, acts ‘with all powers [the Secretary] would have in making the initial decision.'”  In re Peck v. Safe Air Int’l, Inc., ARB Case No. 02-028, ALJ Case No. 2001-AIR-3, 2004 WL 230770 (Admin. Rev. Bd. Jan. 30, 2004) (quoting 5 U.S.C.A. § 557(b) (West 1996)). 

In determining whether an employee has been discriminated against under Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (“AIR21”), 49 U.S.C.A. § 42121 (West 2003), the principal issues are (1) whether the employee was a covered employee who engaged in protected activity and suffered an unfavorable personnel action; (2) whether the employee demonstrated that the employer had knowledge of his or her safety complaint such that it may said that the employer was motivated to take adverse action against the employee; and (3) whether the employer had a legitimate, non-discriminatory reason for its action.  Peck, 2004 WL 230770, at *5.  The ARB has also decided that the burden-shifting framework of typical discrimination cases may be used in cases arising under AIR21.  Id. at *7.

Congress modeled AIR21 section 519(b)(2)(B) on section 211 of the [Energy Policy Act] . . . .  The ERA was amended in 1992 to incorporate, inter alia, the same gatekeeper test, a criterion permitting a complainant to prevail upon demonstrating that protected activity was a contributing factor in […]

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