Investigation procedures

The Assistant Secretary will notify the named person that a complaint was filed, tell them the allegations and the substance of supporting evidence (with confidential informants redacted), and inform them of their rights under the listed procedures. See 1979.104(a) and 1979.110(e).

• The notice includes allegations and supporting evidence redacted to protect confidential informants.
• The notice also tells the named person about rights under paragraphs (b) and (c) of 1979.104 and under 1979.110(e).

Yes. A copy of the notice sent to the named person will also be provided to the Federal Aviation Administration. See 1979.104.

The complaint must allege facts and evidence that show each of the following: the employee engaged in protected activity; the named person knew or suspected (actually or constructively) the employee engaged in that protected activity; the employee suffered an unfavorable personnel action; and the circumstances raise an inference that the protected activity was a contributing factor in the adverse action. See 1979.104(b)(1)(i), 1979.104(b)(1)(ii), 1979.104(b)(1)(iii), and 1979.104(b)(1)(iv).

• The complaint may be supplemented by interviews of the complainant to support these elements.

The complaint must, on its face (and as supplemented by interviews if needed), allege facts and either direct or circumstantial evidence that give rise to an inference the named person knew or suspected the protected activity and that the activity contributed to the unfavorable action. See 1979.104(b)(2).

• Direct or circumstantial evidence is acceptable; the standard for opening an investigation is whether the complaint alleges enough to raise the required inference.

The named person can avoid an investigation by demonstrating by clear and convincing evidence that they would have taken the same unfavorable personnel action even without the complainant's protected behavior. See 1979.104(c).

• The named person may submit a written statement and supporting affidavits or documents within 20 days of receiving notice, and may request a meeting with the Assistant Secretary during that 20-day period.
• The standard to avoid investigation is "clear and convincing evidence," which is a higher burden than the complainant’s prima facie showing.

The Assistant Secretary will conduct an investigation if the named person fails to demonstrate by clear and convincing evidence that the same unfavorable personnel action would have been taken absent the protected behavior. See 1979.104(d).

Within 20 days of receiving the notice of the complaint filing, the named person may submit a written statement with any affidavits or documents supporting their position and may request a meeting with the Assistant Secretary to present their case. See 1979.104(c).

• Submissions and the meeting request must be made within the 20-day period to be considered in the pre-investigation review.

Yes. The rules explain that timing can often satisfy the prima facie burden: if an adverse personnel action occurred shortly after protected activity, that fact can give rise to the inference that the protected activity was a contributing factor. See 1979.104(b)(1)(iv) and 1979.104(c).

• However, timing alone may not always be sufficient if the named person later proves by clear and convincing evidence that the same action would have been taken regardless.

Before findings and any preliminary order, the Assistant Secretary will, if there is reasonable cause, notify the named person of the substance of the relevant evidence developed during the investigation, including witness statements (redacted or summarized to protect confidential informants), and give the named person an opportunity to respond in writing or in a meeting and to present legal and factual arguments. See 1979.104(e).

• If witness statements cannot be redacted without revealing a confidential informant, summaries of their content will be provided instead.
• The named person may present statements from witnesses in support of their position.

No. Witness statements that identify confidential informants are redacted to protect their identity; if redaction would still reveal the informant, the Assistant Secretary will provide a summary of the statement instead. See 1979.104(e).

Investigations are conducted in a way that protects the confidentiality of any person who provides information on a confidential basis (other than the complainant), consistent with the applicable confidentiality rules. See 1979.104.

• The regulation explicitly requires protection of confidential informants and limits disclosure of identifying information.

If the complaint fails to make the required prima facie showing that protected activity was a contributing factor, the complaint will be dismissed and the complainant will be advised that the investigation will not commence. See 1979.104(b) and the explanation in 1979.104(c).

The named person is notified of their right to present a defense showing by clear and convincing evidence that the same unfavorable personnel action would have been taken without protected activity, to submit written statements and supporting affidavits/documents, and to request a meeting with the Assistant Secretary within 20 days. See 1979.104(a) and 1979.104(c).

It means the complaint must allege that the named person either actually knew the employee engaged in protected activity or should have known (constructive knowledge) based on the circumstances—this is part of the prima facie showing requirement. See 1979.104(b)(1)(ii) and 1979.104(b)(2).

• The complaint must allege facts that give rise to the inference that the named person knew or suspected the protected activity.

The regulation requires that the complaint allege the employee suffered an unfavorable personnel action as part of the prima facie showing; the complaint must identify that adverse action as one element supporting the claim. See 1979.104(b)(1)(iii).

• The regulation does not provide an exhaustive list of what counts as an unfavorable action in this section; the complaint must describe the adverse personnel action alleged.

Yes, timing can often be sufficient to meet the prima facie showing—if the adverse action occurred shortly after the protected activity, that can raise the necessary inference—but it is not conclusive because the named person may later rebut it by clear and convincing evidence. See 1979.104(c) and 1979.104(b)(1)(iv).

If the named person requests a meeting within the 20-day period, the Assistant Secretary may meet with them so they can present their written statement, affidavits, documents, and oral arguments to support their position that the same action would have occurred absent the protected activity. See 1979.104(c).

• The meeting is an opportunity to provide the clear and convincing evidence needed to avoid an investigation.

The named person will be given the opportunity to submit a written response, meet with investigators to present witness statements in support of their position, and present legal and factual arguments before findings and any preliminary order are issued. See 1979.104(e).

No. For purposes of deciding whether to investigate, the complainant may meet the required burden by alleging facts and either direct or circumstantial evidence that give rise to the inference the named person knew or suspected the protected activity and that it was a contributing factor in the unfavorable action. See 1979.104(b)(2).

The Assistant Secretary is responsible for the initial review actions, including notifying the named person of the complaint, the allegations, supporting evidence (with redactions), and informing them of their rights under the procedures. See 1979.104(a).