                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT                     FILED
                     ________________________          U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                           September 26, 2008
                           No. 07-15872
                                                          THOMAS K. KAHN
                       Non-Argument Calendar                    CLERK
                     ________________________

          Agency No. 04-163-ARB CASE NO. & ALJ NO.2003-A

RIAD MAJALI,


                                                                  Petitioner,

                                 versus

U.S. DEPARTMENT OF LABOR,

                                                                Respondent,

AIRTRAN AIRLINES,

                                                                Intervenor.

                     ________________________

                 Petition for Review of a Decision of the
                           Department of Labor
                      _________________________

                         (September 26, 2008)

Before ANDERSON, HULL and KRAVITCH, Circuit Judges.
PER CURIAM:

       This is a petition for review of an administrative adjudication by the

Department of Labor’s Administrative Review Board. The Board reviewed and

sustained an ALJ’s determination, reached after a two-day evidentiary hearing,

that petitioner Riad Majali was not fired by Airtran Airlines in retaliation for

reporting a safety violation to the Federal Aviation Administration. We deny the

petition.

                                               I.1

        Petitioner Riad Majali was employed as a Manager of Maintenance

Planning for intervenor AirTran Airlines, a commercial airline. Prior to working

for AirTran, petitioner was a mechanic with Continental Airlines for thirteen

years. Petitioner supervised a staff of five, including Christine O’Sullivan and

Reuben Wenger; he reported to Jim Buckalew.


       1
         Our recitation of the events is based on the factual findings of the ALJ, affirmed by the
Board. When conducting APA review of a formal adjudication by an administrative agency, we
adhere to the agency’s factual conclusions unless they are unsupported by substantial evidence in
the administrative record as a whole. See 5 U.S.C. § 706(2)(E). The substantial evidence
standard is merely “a recitation of the arbitrary and capricious standard to factual findings;”
Fields v. U.S. Dept. of Labor Admin. Rev. Bd., 173 F.3d 811, 813 (11th Cir. 1999); it is “more
than a scintilla and is such evidence as a reasonable person would accept as adequate to support a
conclusion.” Fluor Daniel v. Occupational Safety & Health Review Comm’n, 295 F.3d 1232,
1236 (11th Cir. 2002). There may be substantial evidence to support a factual conclusion even if
the evidence preponderates the other way, or if we would reach the opposite conclusion were we
to reweigh the evidence ourselves. Baker on Behalf of Baker v. Sullivan, 880 F.2d 319, 321
(11th Cir. 1989).

                                                2
      FAA regulations require commercial aircraft to undergo maintenance

checks at specified time intervals of flying. Once an aircraft has flown sufficient

hours to require a maintenance check, it is in “overfly” status and thereafter cannot

be used to transport commercial passengers (“revenue flights”). It may, however,

be flown without passengers to a different location to be serviced (“ferry flights”).

      Petitioner was charged with keeping up the “overdue report,” a document

which listed the number of hours until each aircraft was in overfly status. For

reasons not pertinent here, on February 24, 2002 an AirTran plane had its

maintenance checks rescheduled and postponed, with the result that it entered

overfly status. Yet due to an oversight by one of petitioner’s staff, the plane

continued to make revenue flights. O’Sullivan, petitioner’s subordinate, noticed

that the plane was in overflight status and notified petitioner. Petitioner directed

that a maintenance check be performed in Atlanta, but it turned out that the

Atlanta crew did not have certain equipment needed to do the check. So

Buckalew, petitioner’s supervisor, directed the plane be ferried to Miami to do the

maintenance check. For reasons unclear from the record, the plane was not ferried

to Miami, but was instead flown as a revenue flight (i.e. with passengers). Once in

Miami, the plane was serviced.

      AirTran conducted an internal investigation of the overflight; it

                                          3
contemporaneously self-reported some other overflights to the FAA. It did not

self-report the February 2002 overflight; AirTran contends this overflight was

omitted due to oversight. While the investigation was pending, petitioner wrote an

email to Buckalew on March 15, 2002, which criticized AirTran’s maintenance

department and noted that the overflight was “illegal and unsafe.” AirTran’s

internal investigation, however, put part of the blame for the overflight on

petitioner’s department for not ensuring that no revenue flights were undertaken

until after the required maintenance check. The investigation also recommended

that petitioner’s department be subjected to further training about maintaining the

overdue report. Shortly thereafter, petitioner received a formal reprimand from

Buckalew, his immediate supervisor, for not properly maintaining the overdue

report. Petitioner responded to the reprimand with an email of his own, stating

that his subordinate O’Sullivan’s oversight, not any negligence on his part in

maintaining the overdue report, was to blame for the overflight.

      At that time, petitioner was scheduled to take a vacation from June 23 to

July 7 to visit his sick mother abroad. Shortly before he left, petitioner emailed

Buckalew to ask whether he could extend his vacation an extra three days, through

July 10, by switching shifts with certain other AirTran staffers. Buckalew refused,

and scheduled petitioner to work July 8-10. Petitioner did not appear for work on

                                          4
those three days. Buckalew contacted AirTran’s Vice President of Human

Resources, Loral Blinde, who arranged a meeting between Buckalew and

petitioner for July 15 to discuss the situation. Buckalew prepared an evaluation of

petitioner’s work for the meeting, rating it as generally poor. On July 13,

Buckalew called petitioner and told him not to come to work on July 14

(petitioner’s next scheduled shift), but instead to come on July 15 for the meeting

with Human Resources.

      Petitioner appeared for the meeting. Buckalew and Blinde confronted

petitioner about his unexcused absence; petitioner responded that he believed

Buckalew had given him permission to take July 8-10 off. Petitioner also

contended that Buckalew had treated him unfairly since the overflight incident

described above. Blinde said he would look into petitioner’s allegations, but

asked him not to come to work while the inquiry was pending. The next day, July

16, 2002, petitioner retained an attorney. The attorney told AirTran that petitioner

believed he had been wrongfully fired and would not accept reinstatement. Blinde

responded by calling petitioner and his attorney and explaining that petitioner had

not been fired. (Indeed, petitioner continued to draw salary and benefits during

this time.) Petitioner was also informed by letter that he should return to work on

July 24 or he would be placed on unpaid leave. Petitioner did not come to work

                                         5
on July 24, and hence was placed on unpaid leave. Thereafter, on July 29,

petitioner wrote to AirTran’s CEO and asked him to investigate the “corruption in

the maintenance department led by Mr. Buckalew.”

      On August 5, petitioner wrote Blinde and stated that he did not object to

returning to work, but only on certain conditions, including a written guarantee

against retaliation, a demand that the perceived retaliation against him stop, and a

reservation of his right to complaint to the FAA and others about his perceived

constructive termination. Blinde stated that he could not speak to petitioner

because petitioner was represented by counsel. Petitioner fired his attorney and

informed Blinde two days later that he wanted to negotiate a settlement agreement.

      On August 8, petitioner emailed a proposed settlement offer to Blinde. The

terms of the proposal included three years of pay, a favorable letter of

recommendation, a year of medical benefits, and six months of flight privileges.

Blinde rejected the offer. On August 14, petitioner informed Blinde that he had

filed a complaint with the EEOC and that he also planned to file a complaint with

the FAA. Then, on August 16, petitioner wrote another letter to Blinde offering to

return to work so long as he did not have to sign any releases. Blinde did not

respond; he later stated that he did not accept petitioner’s offer “because at that

point it was fruitless to have him come back because of the demands he continued

                                          6
to make.” Petitioner then sent a letter to the FAA describing the February 24,

2002 revenue overflight from Atlanta to Miami. Later, on October 11, 2002,

petitioner complained to OSHA that he had been constructively discharged for

reporting the overflight.

      On October 23, petitioner informed Blinde of the OSHA complaint by

email, and offered to drop his retaliation complaint in exchange for reinstatement

or a settlement package of four months pay, and flight benefits and health benefits

for one year or until he found a new job. Blinde did not respond. A week later,

petitioner retracted his offer, then renewed it the next day. Blinde counteroffered

with two months pay, two months benefits and travel, and COBRA continuation

benefits for eighteen months, in exchange for petitioner’s release of all claims.

Petitioner rejected the counteroffer. On November 4, 2002, petitioner became

aware that the FAA was investigating the overflight he reported, and emailed

Blinde again. He reiterated his demand for four months pay as part of a

settlement. Blinde again refused.

      The FAA opened an investigation of the Atlanta-to-Miami overflight

reported by petitioner in February 2003. It interviewed numerous AirTran

employees, including O’Sullivan. O’Sullivan told the FAA that petitioner asked

her to falsify a document to hide the overflight, although she refused. (Petitioner

                                          7
denied making any such demand.) AirTran was apparently unaware that petitioner

asked O’Sullivan to do this until it received the transcripts of O’Sullivan’s

interview with the FAA. AirTran did not investigate the matter on its own, but

nonetheless wrote the FAA on March 31, 2003, condemning petitioner’s actions as

“inexcusable” and stating that AirTran would fire petitioner.

       On April 25, 2003, AirTran officially fired petitioner. The termination letter

cited “disregarding [his] regulatory responsibilities” and “ordering a subordinate

to falsify a maintenance document” as the causes. The letter did not mention

petitioner’s prolonged absence from work or the protracted, hostile negotiations.

Petitioner responded by filing a second complaint with OSHA alleging retaliatory

discharge.

       The two complaints were consolidated for hearing before an ALJ. After a

two day evidentiary hearing, the ALJ concluded that petitioner engaged in several

instances of protected conduct2 and suffered two adverse employment actions

(formal suspension and firing), but did not demonstrate that the protected conduct

was a “contributing factor” to either adverse employment action. The ALJ held



       2
         As explained infra section II., an airline employee who reports certain safety problems
to the FAA is protected from retaliation by federal law. The protected conduct at issue here
consists of petitioner’s letter to the FAA about the overflight, his generalized complaint to
AirTran’s CEO, and his memo about the overflight to Buckalew.

                                                8
that the suspension was based on petitioner’s failure to return to work on July 24,

2002, not on his protected activities. And she concluded that petitioner’s

termination was also based on legitimate reasons: the fact that petitioner had not

been to work in ten months, and the protracted series of negotiations and demands

he made. Hence, the ALJ concluded that AirTran had established legitimate

reasons for its actions, which petitioner had not shown to be pretextual.3

       Petitioner then sought review of the ALJ’s determination before the Board.

The Board essentially accepted the ALJ’s factual conclusions. It also rejected two

of AirTran’s proffered reasons for firing petitioner: his lengthy absence from work

and the purported falsification. But the Board affirmed the ALJ’s conclusion that

the protracted and often hostile negotiations between petitioner and AirTran, not

petitioner’s protected activity, led to his termination. This petition for review

ensued.

                                              II.

       Federal law prohibits airlines from discharging certain employees, or

discriminating against them with respect to the terms or conditions of

employment, based on certain protected activities. See 49 U.S.C. § 42121(a).


       3
         The ALJ did discard some of the non-retaliatory reasons put forth by AirTran, however,
namely petitioner’s purported attempts to convince O’Sullivan to falsify a document. The ALJ
credited petitioner’s testimony that he made no such request.

                                               9
Among the protected activities are that an employee (i) provided information to

the federal government about a violation of federal air safety laws or (ii) initiated

safety-related proceedings with the FAA. Id. § 42121(a)(1)-(2). This anti-

retaliation statute is more protective of plaintiff-employees than many similar

measures, in two important ways. First, the complaining employee need only

show that his protected activity “was a contributing factor” in the retaliatory

discharge or discrimination, not the sole or even predominant cause. 49 U.S.C. §§

42121(b)(2)(B)(i), (iii). In other words, if a retaliatory motive “tends to affect in

any way the outcome of the decision” to take an adverse action against an

employee, the statutory protections apply. See Allen v. Admin. Rev. Bd., 514 F.3d

468, 476 n.3 (5th Cir. 2008); Marano v. Dept. of Justice, 2 F.3d 1137, 1140 (Fed.

Cir. 1993) (construing the Whistleblower Protection Act, another anti-retaliation

statute which employs the “contributing factor” standard). Hence, an employee

covered by the statute bears the burden of “demonstrating”4 these elements of a

prima facie case: (i) that he engaged in protected activity, (ii) that he suffered

discharge or discrimination in the terms or conditions of his employment, and (iii)



       4
         The record reflects that the Department of Labor has interpreted “demonstrate” in this
context to mean “prove by a preponderance of the evidence.” Petitioner does not argue otherwise.
See also Dysert v. Sec’y of Labor, 105 F.3d 607, 610 (11th Cir. 1997) (identical interpretation of
“demonstrate” in another whistleblower protection statute).

                                               10
that the protected activity was a contributing factor in the adverse employment

action.5

       Second, once a prima facie case of retaliation is made, an employer may

nonetheless prevail by showing “the employer would have taken the same

unfavorable personnel action in the absence of [the protected activity],” but it must

make this showing by clear and convincing evidence. 49 U.S.C. §§

42121(b)(2)(B)(ii), (iv). The statute makes clear that the ultimate burden of

persuasion on this issue remains with the employer: “relief may not be ordered . . .

if the employer demonstrates by clear and convincing evidence that the employer

would have taken the same unfavorable personnel action in the absence of

[protected activity].” Id. § 42121(b)(2)(B)(iv) (emphasis added). Compare id. §

42121(b)(2)(B)(iii) (complainant bears burden of demonstrating protected activity,

unfavorable personnel action, and causation).

       Once administrative review before the Secretary6 is complete, venue and


       5
         The Fifth Circuit has stated as a separate element of the prima face case that the
employer knew the employee engaged in protected activity. Allen v. Admin. Rev. Bd., 514 F.3d
468, 475-76 (5th Cir. 2008). We think such a showing is implicit in the “contributing factor”
element; protected activity of which the employer was unaware could not have contributed to any
adverse retaliatory action as a matter of law.
       6
          The Secretary has delegated his authority to issue final orders in cases arising under this
statute to the Administrative Review Board. 67 Fed. Reg. 64,272 (Oct. 17, 2002). We have not
elaborated further on the administrative procedure governing such claims, as there is no question
it was followed.

                                                 11
jurisdiction to review a final Order of the Secretary lie in this court pursuant to 49

U.S.C. § 42121(b)(4)(A), which permits “any person aggrieved or affected” by the

order to file a petition in the Circuit where the complainant resides. Our review is

pursuant to the standards set forth in the Administrative Procedure Act. Id.

Petitioner alleges two bases for relief under the APA: (i) that the administrative

proceedings were contrary to law, see 5 U.S.C. § 706(2)(A), in that the ALJ and

Administrative Review Board applied incorrect legal standards, and (ii) that the

ALJ’s factual conclusion that his protected activity did not contribute to his firing

is not supported by substantial evidence in the administrative record. See 5 U.S.C.

§ 706(2)(E). We address each in turn.

      Petitioner first argues that both the ALJ and the Board erred by making him

disprove the non-retaliatory reason AirTran proffered for firing him. He argues

that he made out a prima facie case of retaliation, and that the burden of

persuasion remained on AirTran to show clearly and convincingly that it would

have fired him independently of his protected activity. Neither the Secretary nor

AirTran dispute that this is what § 42121 requires; instead, they argue petitioner

misreads the pertinent Orders. They urge that in accepting AirTran’s non-

retaliatory explanation for firing petitioner, the ALJ and Board found that

petitioner had not proved that his protected activity was a “contributing factor” to

                                          12
the decision to fire him. We agree. A fair reading of the ALJ’s and Board’s

orders reveals that they believed petitioner had not shown that his protected

activity contributed to his termination.7 Accordingly, AirTran was under no

obligation to prove that it would have taken the same personnel action regardless

of petitioner’s protected activities.

      Petitioner’s substantial evidence challenge fares no better. He urges that the

reason the Board believed he was fired – the failed settlement negotiations and

petitioner’s demands therein – was pretext for retaliation. In this regard, the ALJ

found, and the Board affirmed, that AirTran fired petitioner because his demands

for a severance package while on leave were unreasonable and excessive, and the

unreasonable demands created an acrimonious relationship between petitioner and

AirTran. Substantial evidence in the record supports this conclusion. The terms

of petitioner’s various demands for severance are undisputed, and Blinde testified

that those demands were well above the standard industry package for an

employee with petitioner’s short tenure at AirTran. It is also apparent from the

record that petitioner’s demands did not endear him to Blinde or AirTran and that

the parties’ relationship had deteriorated. There is sufficient record evidence that

a reasonable person would accept the conclusion that petitioner’s settlement


      7
          Petitioner has abandoned any argument that his earlier suspension was retaliatory.

                                                13
demands were the reason he was fired.

       Petitioner points to several facts which, he argues, prove that the settlement-

demands justification is pretext. First, he argues that the long delay between his

last settlement demand (in November 2002) and his termination (in April 2003)

suggests that this justification is pretextual. While the record might permit such

an inference, it does not compel a factfinder to draw it. Next, petitioner argues

that his settlement demands were reasonable, presumably to have us infer that such

demands were not the actual reason AirTran fired him.8 There is substantial

evidence to the contrary, however; Blinde testified that petitioner’s offers

substantially exceeded standard industry practice. Petitioner further argues that

AirTran’s termination letter states that petitioner was fired for encouraging

O’Sullivan to falsify a document – a reason the ALJ found “deficient”9 – not for

making unreasonable settlement demands. He would have us infer from this that

the settlement demands were a pretext for retaliatory firing. But simply because


       8
         To the degree petitioner argues he should not have been fired for making settlement
demands, rather than offering to return to work unconditionally, we note that such demands are
not protected activity under 49 U.S.C. § 42121(a).
       9
          More precisely, the ALJ credited petitioner’s testimony that he did not order any
falsification over O’Sullivan’s out-of-court statement to the contrary. The ALJ did not find,
however, that AirTran disbelieved O’Sullivan, merely that AirTran responded unreasonably to
O’Sullivan’s accusations. What AirTran believed about the alleged falsification order, not
whether the falsification request was actually made, is the relevant consideration in a pretext
analysis.

                                               14
the factfinder disbelieved one of AirTran’s proffered legitimate reasons for its

actions does not require her to disbelieve another, nor to infer a retaliatory motive

by AirTran. Cf. Wilson v. B/E Aerospace Inc., 376 F.3d 1079, 1088 (11th Cir.

2004) (under Title VII, factfinder’s rejection of legitimate explanation by

employer permits, but does not compel, a finding of unlawful discrimination).

Finally, petitioner notes that he offered to return to work in the midst of the

settlement negotiations, on August 16, 2002, an offer he describes as

unconditional. Again, he would have us infer from this that his conduct during the

settlement negotiations was eminently reasonable, and therefore could not be the

cause of his firing. Yet the record demonstrates that Blinde viewed the August 16

offer as conditional, in part because petitioner stated that he would not sign any

waivers or releases. Whether or not petitioner’s demands or offers were

reasonable or unconditional is beside the point; if Blinde believed they were

unreasonable and fired petitioner for that reason alone, then AirTran did not

retaliate against petitioner for his protected activity. Substantial evidence in the

record supports precisely this version of events.

      In short, the evidence petitioner cites to prove that the settlement-demands

justification is pretextual is unpersuasive and unavailing. The record might have

permitted the ALJ and the Board to have made a finding that protected activity

                                          15
contributed to petitioner’s firing, but substantial evidence supports the opposite

conclusion. The petition for review is

      DENIED.




                                         16
