           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         December 8, 2008

                                     No. 08-60128                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


BRENT BARKER

                                                  Petitioner
v.

ADMINISTRATIVE REVIEW BOARD, UNITED STATES DEPARTMENT
OF LABOR

                                                  Respondent



               Appeal from the United States Department of Labor
                          Administrative Review Board
                                Case No. 05-058


Before WIENER, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Petitioner Brent Barker seeks review of a decision of the Department of
Labor Administrative Review Board (“ARB”) affirming a ruling of an
Administrative Law Judge (“ALJ”) that Barker’s dismissal by Ameristar
Airways, Inc. (“Ameristar”) was not retaliatory.1 Barker continues to claim that


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
       1
        Barker filed suit under a whistleblower protection provision of the Wendell H. Ford
Aviation Investment and Reform Act for the 21st Century (“AIR 21"), 49 U.S.C. § 42121 (2006).
                                         No. 08-60128

Ameristar fired him for reporting the company’s poor compliance with federal
aviation safety regulations to the Federal Aviation Administration (“FAA”).
Barker asserts that (1) the ARB was arbitrary and capricious in not reversing
the ALJ because Barker demonstrated by substantial evidence that Ameristar’s
explanation for his dismissal was a pretext for retaliation, and (2) the ARB erred
in affirming the ALJ’s decision to exclude some testimony of his former co-
worker, Thomas Clemmons, regarding the allegedly retaliatory reasons for
Clemmons’s dismissal. We deny the petition.
       Barker was chief pilot at Ameristar from September 2002 until mid-April
2003 when he and five other Ameristar pilots were laid off. During Barker’s
brief tenure at Ameristar, he raised numerous safety concerns about the planes
that the company operated, directly notifying the FAA about these matters on
at least one occasion. Management told Barker that it preferred he handle
complaints “in-house.” During this time, the company was struggling to find
business and become profitable; it lost $650,000 over 15 months. The mid-April
lay-off that included Barker affected six of the company’s 10 pilots, and the
company was defunct soon after.
       We affirm a decision of the ARB unless it is “arbitrary, capricious, an
abuse of discretion, or otherwise contrary to law. Factual findings are subject
to substantial evidence review.”2 Conclusions of law are reviewed de novo.3 An
ALJ is granted broad discretion to make evidentiary determinations.4




       2
           5 U.S.C. § 706 (2006); Willy v. Admin. Review Bd., 423 F.3d 483, 490 (5th Cir. 2005).
       3
        Willy, 423 F.3d at 490. The ARB reviews an ALJ’s factual conclusions in cases like
this under a substantial evidence standard and legal conclusions de novo. Guirovici v. Equinix,
Inc., ARB Case No. 07-027, 2008 DOLSOX Lexis 52, at *7-8 (Dep’t of Labor 2008) (AIR 21
governs complaints filed under the Sarbanes-Oxley Act of 2002 at issue in this case).
       4
           29 C.F.R. § 1979.107(d) (2008).

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                                        No. 08-60128

       Barker had the burden of proving that Ameristar fired him at least in part
for retaliatory reasons.5 Ameristar could avoid liability by demonstrating by
clear and convincing evidence that it would have taken the action regardless of
Barker’s behavior,6 and Barker could then respond by demonstrating that his
former employer’s proffered explanation was a pretext for retaliatory discharge.7
Barker did this, offering evidence that Ameristar’s proffered explanation was
pretextual. He claims here that the ARB ignored his evidence, yet we find no
support for this contention. Rather, we conclude that the ALJ found Ameristar’s
explanation was more convincing than Barker’s, and the ARB concurred. On
this record, we cannot agree that the ARB’s decision was arbitrary and
capricious.
       Finally, Barker contends that the ARB was arbitrary and capricious in
affirming the ALJ’s decision to bar portions of Clemmons’s testimony. The ARB
found no abuse of discretion in the ALJ’s exclusion of the part of Clemmons’s
testimony that described his theory that he had been fired in retaliation for
reporting the company’s unsafe aviation practices to the FAA. Barker asserts
that Clemmons’s excluded testimony would have established a pattern of
retaliatory firings by the company. But Clemmons was a manager who was
fired individually months earlier. In contrast, Barker was one of six pilots (out
of a total of 10) who were laid off just months before the company went under.
The ARB viewed the situations as sufficiently inapposite to uphold the ALJ’s
conclusion that Clemmons was not similarly situated to Barker, making the
subject portion of his testimony irrelevant. The ARB also noted that the ALJ
permitted Clemmons to provide other relevant testimony. Given the deferential

       5
           Allen v. Admin. Review Bd., 514 F.3d 468, 476 (5th Cir. 2008).
       6
           Id.
       7
        Sievers v. Alaska Airlines, Inc., ARB Case No. 05-109, 2008 WL 316012, at *3 (Dep’t
of Labor 2008).

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standard of review applicable, we cannot agree with Barker that the ARB’s
conclusion was arbitrary and capricious.
     PETITION DENIED.




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