Moreover, the Complaint should be dismissed with prejudice because any attempt to pursue a WPP claim at this point would be futile, as the 90 day period in which Plaintiff should have filed his WPP claim has long since lapsed. 49 U.S.C. § 42121(b)(1)). Indeed, Plaintiff concedes he was terminated on or about July 23, 2015, which means he should have filed his complaint with the Secretary no later than October 23, 2015.

Case 4:15-cv-00204-CDL Document 78 Filed 02/21/17 Page 12 of 40Case 4:16-cv-0005 -LGW-GRS Document 45-1 Filed 03/31/17 Page 12 of 40 13 “[O]nce a prima facie case of retaliation is made, an employer may nonetheless prevail by showing [by clear and convincing evidence that] ‘the employer would have taken the same unfavorable personnel action in the absence of [the protected activity].’” Majali, 294 F. App’x at 566–67 (second alteration in original) (quoting 49 U.S.C. § 42121(b)(2)(B)(ii) & (iv)); see also Stone & Webster Eng’g Corp. v. Herman, 115 F.3d 1568, 1572 (11th Cir. 1997) (noting that the same burden under the Energy Reorganization Act, 42 U.S.C. § 5851, is a “tough standard”), superseded by regulation on other grounds as stated in Dekalb Cty. V. U.S. Dep’t of Labor, 812 F.3d 1015, 1020 (11th Cir. 2016).

Case 4:15-cv-00204-CDL Document 78 Filed 02/21/17 Page 12 of 40Case 4:16-cv-00053-LGW-GRS Document 42-1 Filed 03/31/17 Page 12 of 40 13 “[O]nce a prima facie case of retaliation is made, an employer may nonetheless prevail by showing [by clear and convincing evidence that] ‘the employer would have taken the same unfavorable personnel action in the absence of [the protected activity].’” Majali, 294 F. App’x at 566–67 (second alteration in original) (quoting 49 U.S.C. § 42121(b)(2)(B)(ii) & (iv)); see also Stone & Webster Eng’g Corp. v. Herman, 115 F.3d 1568, 1572 (11th Cir. 1997) (noting that the same burden under the Energy Reorganization Act, 42 U.S.C. § 5851, is a “tough standard”), superseded by regulation on other grounds as stated in Dekalb Cty. V. U.S. Dep’t of Labor, 812 F.3d 1015, 1020 (11th Cir. 2016).

[ECF No. 95-1 at pp. 2-7, 16, 18, 20-24, 38.] Plaintiff cannot recover under Title VII for alleged retaliation based on her claimed complaints about safety violations because reporting safety violations does not constitute protected activity and must instead be pursued through administrative proceedings under the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century ("AIR 21"),9 49 U.S.C. § 42121 et seq. [Def.’s Mot.

(citing Welch v. Chao, 536 F.3d 269, 275 (4th Cir.2008); see 18 U.S.C. § 1514A(b) (“An action brought under paragraph (1)(B) shall be governed by the legal burdens of proof set forth in section 42121(b) of title 49, United States Code.”); 49 U.S.C. § 42121(b)(ii) (“[N]o investigation otherwise required under subparagraph (A) shall be conducted if the employer demonstrates, by clear and convincing evidence, that the employer would have taken the same unfavorable personnel action in the absence of that behavior.”); see also Livingston v. Wyeth, Inc., 520 F.3d 344, 352–53 (4th Cir.2008) (setting out SOX affirmative defense standard.)

Even if plaintiffs could show a prima facie case—and they cannot—BNSF is still entitled to summary judgment if it can show clear and convincing evidence that it “would have taken the same unfavorable personnel action in the absence of the employee’s protected activity.” 49 U.S.C. § 42121(b)(2)(B)(ii). Courts have granted summary judgment on this 7 Mirelowitz submitted additional SIRP reports concerning the issue on June 7, 2005, April 10, 2008, May 23, 2008, and March 20, 2012.

18 U.S.C. §1514A(b)(2)(C). The AIR 21 approach is codified at 49 U.S.C. §42121(b)(2)(B), which states in pertinent part: (B) Requirements.-- (i) Required showing by complainant.

Id. at 476; 49 U.S.C. § 42121(b)(2)(B)(iv). “This independent burden shifting framework is distinct from the McDonnell Douglas burden-shifting framework applicable to Title VII claims.”