Under AIR-21's two-step framework, can evidence showing an employee's protected activity was a contributing factor in the unfavorable personnel action at step one discredit the employer's separate same-action affirmative defense at step two?

The whistleblower protection provision of the Sarbanes -Oxley Act of 2002 requires courts to apply the two -step burden -shifting framework set forth in the Wendell H. Ford Aviation Investment and Reform A ct for the 21st Century ( “AIR-21”). 18 U.S.C. § 1514A(b)(2)(C). Under AIR -21’s two -step framework, an employee first bears the burden of proving his protected activity “was a contributing factor in the unfavorable personnel action alleged in the complaint.” 49 U.S.C. § Even i f he makes this first-step showing, the employer will not be held liable if it “demonstrates by clear and convincing evidence that [it] would have taken the sa me unfavorable personnel action in the absence of” the protected activity. 49 U.S.C. § 42121(b)(2)(B)(iv). This second -step showing is known as the employer’s same -action affirmative defense. In Murray v. UBS Securities, LLC , 601 U.S. 23, 38 (2024), this Court instructed that “[t]he right way to think about” the employer’s sameaction affirmative defense is to ask “whether the employer would have retained an otherwise identical employee who had not engaged in the protected activity.” (Citation modified ). The Question Presented is: Under AIR -21’s two -step framework, can evidence showing an employee’s protected activity was a contributing factor in the unfavorable personnel action at step one discredit the employer’s separate same -action affirmative defe nse at step two?