The Federal Aviation Administration has settled the reverse race and sex discrimination claims of a white male employee and, in a separate consent order approved by the U.S. District Court for the District of New Jersey, agreed to conduct a review of its hiring and promotion policies to ensure that they comply with federal law (Ryan v. FAA, D. N.J., No. 9904128 (JWB), consent order approved 10/6/04).

Although the FAA does not admit any wrongdoing in either the consent order or settlement agreement, the consent order requires the agency to complete a comprehensive review of its affirmative action policies and plans within two years, to ensure they are in compliance with relevant U.S. Supreme Court rulings and Equal Employment Opportunity Commission directives.

The consent order approved by Chief Judge John W. Bissell references a concurrent separate settlement agreement reached between FAA computer scientist Michael C. Ryan and the agency to resolve his claims of discriminatory nonpromotion.

According to Ryan’s attorney, Hanan M. Isaacs of Kingston, N.J., the agency agreed to promote Ryan and provide him a back pay differential of more than $62,000, plus interest, for the time he was passed over for promotion in favor of women and minority candidates. In addition, Isaacs said that the FAA agreed to pay attorneys’ fees of approximately $360,000.

The order requires that, rather than seeking enforcement of the order through the courts, the parties must resolve the matter through mandatory alternative dispute resolution. Through the order, parties agreed to use a three-step process of notification and discussion, mediation, and binding arbitration to resolve enforcement disputes.

Isaacs told BNA Oct. 26 that while an agreement to use alternative dispute resolution as an enforcement mechanism is widely used in private sector discrimination cases, it is a novel approach in the federal employment sector.

Promotions Denied.

Ryan joined the FAA in 1976, and by 1986 had risen to the General Schedule 14 level. Between 1986 and 1995, he received “exceptional” or better performance appraisal ratings, according to his trial memorandum.

Beginning in 1995, Ryan began applying for promotions to supervisory and management level positions at the agency. Between 1995 and 1997, Ryan was turned down for eight positions. Seven of the eight positions were awarded to minority or female candidates, including one instance in which a black female candidate was groomed for the position through special training and awarded the position even though she had 13 years less seniority and experience than Ryan, Isaacs said.

Ryan filed administrative complaints alleging discrimination in violation of Title VII of the 1964 Civil Rights Act. Ultimately he filed a lawsuit in federal court.

In addition to his bias claims, Ryan alleged that he had been retaliated against for filing his administrative claims. He also added a Fifth Amendment equal protection claim, challenging the constitutionality of FAA’s affirmative action policies, which he alleged resulted in illegal discrimination depriving him of promotion. Ryan asserted that the agency routinely ignored merit system principles governing competitive hiring in its aggressive affirmative action campaign.

Ryan asserted that FAA paid special attention to promoting women and minorities and had an unwritten policy that 50 percent of all promotions be given to candidates from those groups. Agency officials were rated on their performance, in part, based on their aggressive promotion of minorities and women to meet the 50 percent policy, he alleged.

In his trial brief, Ryan alleged that a high-level FAA manager told him he was not selected for promotion and management training temporary assignments because he was “not the right color.” Ryan asserted.

In 2002, the court rejected FAA’s motion for summary judgment, and a 22-day trial was held in 2004. During the trial, the court dismissed Ryan’s request for emotional distress compensatory damages and encouraged the parties to engage in settlement discussions.

At the end of trial, the parties entered court-supervised mediation. That effort resulted in the parties asking the court to approve the consent agreement.

Affirmative Action Challenged.

The consent order requires the FAA to study its policies to ensure that they comply with Adarand Constructors Inc. v. Pena, 515 U.S. 200, 67 FEP Cases 1828 (1995), in which the Supreme Court ruled that affirmative action minority set-aside programs for federal contracts had to be based on a showing of specific past discriminatory actions.

“The FAA here made no actual showing of past discrimination,” Isaacs said, noting that at trial FAA officials testified that the agency had not engaged in discriminatory hiring practices in the past.

FAA was so committed to trying to make the agency “look like America” that it used improper demographic information to show discrimination against racial minorities and women, Isaacs said. “The problem is that FAA was using the entire U.S. civilian labor force as a comparison instead of the group of workers with the kinds of specialized skills and work traits that the jobs in question demand,” Isaacs said. “Using the wrong demographics leads to unlawful discrimination,” he said.

At trial, Ryan elicited testimony from FAA officials that they knew FAA’s affirmative action plan was flawed. “Trial testimony showed that the FAA relied on manipulated statistics to create the impression that a lawful basis for discrimination [against whites and males] existed,” Isaacs said.

The consent order also requires FAA to follow EEOC’s Management Directive 715, which the commission unveiled in August 2003 (167 DLR A-2, 8/28/03). That directive, among other things, incorporates the Supreme Court’s Adarand ruling, Isaacs explained.

“There are systemic reverse discrimination problems at FAA,” Isaacs said. “We know that the culture is not going to change overnight, but the consent order allows employees access to information about hiring and promotion that can begin that process.”

FAA spokesman Greg Martin told BNA Oct. 27 that the agency was glad to reach a fair settlement of the nine-year- old case.

“The consent agreement upholds FAA’s commitment to a workplace free of discrimination in any form,” Martin said.

Jessica S. Allen, Maggie L. Hughey, and Pamela R. Perron of the U.S. attorneys’ office in Newark, N.J., represented the FAA.

By Donald G. Aplin