CASE 42: FAA UNLAWFUL RACIAL QUOTAS '04

The case is officially known as "Michael C. Ryan vs. Norman Y. Mineta" Civil Action No. 99-4128 (Mineta is named in this action in his official capacity as administrator of the U.S. Dept. of Transportation) The FAA's discrimination against Mr. Ryan pitted merit promotion principles against the FAA's illegal racial quota hiring program. It took Mr. Ryan over nine years of hearings and litigation to win his right to equal treatment under the law without regard to his skin color.

[Adversity.Net Report Oct. 12, 2004] -- Michael C. Ryan is a highly-qualified, tenured employee of the FAA. Unfortunately for him, he is also white, and he has been repeatedly passed over for promotions by less-qualified minorities.

Mr. Ryan has proved in a court of law that the FAA's racial-quota hiring policies illegally discriminated against him and he won a very substantial settlement.

Michael Ryan is employed at the FAA's William J. Hughes Technical Center in Atlantic City, New Jersey. Mr. Ryan has performed very well during his 28 years at the FAA, but the agency had an illegal affirmative action plan which rewarded Ryan's managers for their ability to promote non-whites and not people like him (i.e., white and male).

Between 1995 and 1997, Mr. Ryan was denied eight promotions for which he applied and for which he was well-qualified. Seven of the eight individuals chosen for the disputed jobs were minorities or women.

Being a good Samaritan, and initially believing in the value of government-mandated "forced diversity" Mr. Ryan actually coordinated a training program for the FAA which was attended by one of the eight "less-qualified" minorities who beat him out for a promotion. She was black woman, recruited by the FAA under a special program for minorities and women and from which program white males were specifically excluded. At the time that this black woman was promoted ahead of Mr. Ryan, she had 13 years less seniority than he did.

Mr. Ryan proved at trial that four of the seven minority applicants were not selected based upon merit, but rather were chosen so that the responsible FAA officials and managers could meet the FAA's minority and female promotion quotas established under an unlawful race- and gender-based Affirmative Action Plan.

In court, Mr. Ryan also showed that the FAA used an unwritten but well publicized "50-50" policy, under which FAA managers were required, as a condition of their own performance reviews, to promote women and minorities at least 50% of the time. FAA managers received financial and career incentives to meet and exceed those promotion goals, and were warned that they would be held accountable if they did not.

In other words, Mr. Ryan's bosses at the FAA were required to hire at least one preferred minority for every "white" guy they hired. That sounds an awful lot like a "racial quota", doesn't it?

Mr. Ryan's lawsuit sought to have those policies declared void as a matter of federal constitutional and statutory law.

For the first 10 years of his career with FAA, from 1976 thru 1986, Mr. Ryan received exemplary performance evaluations from his bosses at the Federal Aviation Administration. He had received numerous awards and promotions during this period, achieving a GS-14 level.

GS-14 is a very well-paid government grade job, and since 1986 many other federal agencies besides the FAA haven't promoted many white guys to that level. [This author personally knows several tenured federal employees who are white and male who have been stuck at GS-12 or GS-13 for the past 10 years while preferred minorities with less tenure have been repeatedly promoted over them.]

In 1988, when Mr. Ryan's career stalled, the FAA produced an illegal "Affirmative Action Plan" which called for "a workforce that looks like America by 2000."

But John G. Larsen, a senior manager at the FAA, repeatedly advised the FAA in the 1990's that its "look like America" plan violated U.S. Supreme Court case law. At Mr. Ryan's trial against FAA, Larsen provided this testimony as an expert witness for the plaintiff and was joined in his testimony by two other FAA senior managers.

According to Larsen's testimony, the FAA never conducted what is known as an "Adarand review" of the FAA's racial-quota policies. The White House had requested such a review of FAA's quota program in 1995, and the FAA never conducted the required review of the legality of their quota programs.

The FAA also had no history of discriminatory hiring and promotion patterns against minorities (as required by Adarand) which could be used to support any claim that it had engaged in ongoing or historic discrimination against women and minorities which would nominally justify a compensatory racial quota program. Thus, under Adarand, the FAA was not able to demonstrate any compelling government interest in its race-based remedial promotion program, a condition established by the U.S. Supreme Court's leading decision on point from 1995, Adarand Constructors v. Pena. The Adarand Constructors case successfully challenged mandatory minority set-asides in federal contracting. Not surprisingly, Adarand was filed against the FAA's parent agency, the U.S. Department of Transportation. In Michael Ryan's case, trial testimony showed that the FAA relied upon manipulated statistics to create the impression that a "lawful" basis for reverse (or remedial) discrimination existed, when in fact it did not.

"The Consent Order fashioned by the parties and entered by Chief Judge Bissell gives Mike Ryan complete relief," said Michael Ryan's attorney, Mr. Hanan Isaacs.

"The FAA shall not implement any program or policy using race, national origin, or sex as factors in FAA Personnel Decision- Making unless such program or policy is first reviewed for legal compliance..."

Attorney Isaac's office also said in a statement: "While not admitting liability for its former policies or in its treatment of Mike Ryan, the FAA has pledged to conduct a comprehensive, Adarand-compliant, review of all hiring and promotion programs, practices, and policies, and to report its progress to Mr. Ryan for two years. Mr. Ryan may raise pre-existing or new concerns to a specially appointed Deputy within the Office of the FAA's Chief Counsel. The FAA gets an additional year within which to complete its review. If at any point Mr. Ryan is dissatisfied, then he has the right to invoke a unique, three-step, dispute resolution process, involving notification and discussion, formal mediation, and culminating in binding arbitration."

"This is the first time I have seen a private, three-step, dispute resolution approach used in a federal sector civil rights case. It's a fantastic idea," said attorney Isaacs. "We use it all the time in the private sector."

"This settlement gives Mike Ryan exactly what he asked for," said Ryan's jubilant lawyer, Mr. Hanan M. Isaacs.

"The FAA, to its credit, has committed itself to an Agency-wide policy change that will bring the FAA into compliance with the U.S. Supreme Court's 1995 Adarand decision, after 9 years of delay; Mike will be promoted to a GS-15 managerial and supervisory position at the [FAA's] Hughes Technical Center; he gets a substantial upward salary adjustment, eight years of back pay, plus interest; and we get a $360,000 counsel fee." Isaacs continued, "Judge Harold Ackerman, a federal judge who supervised settlement negotiations, told my client face-to-face, 'You, sir, are a winner!'" "After all of our hard work and sacrifice, Mike and I could not be happier with this outcome," said Isaacs.

The FAA has entered into a Settlement Agreement and Consent Order with Mr. Ryan, the latter document entered formally into the record on October 6, 2004, by Chief Judge John W. Bissell of Federal District Court, Newark, New Jersey.

Judge Bissell heard twenty-two days of trial testimony before the FAA decided to settle the case. In the trial process, plaintiff Ryan presented multiple witnesses and reams of evidence showing that the federal government had violated his constitutional right to equal protection and his Title VII right to be free from employment discrimination. US Attorney Christopher Christie represented the Secretary of the US Department of Transportation.

Hanan M. Isaacs is a Past President of the NJ Association of Professional Mediators and Past Chairman of the Dispute Resolution Section of the NJ State Bar. He served on the New Jersey Supreme Court's Complementary Dispute Resolution Committee and is a Master of two Inns of Court: The Justice Marie L. Garibaldi American ADR Inn of Court and the Mercer County American Inn of Court. Recognized by the NJ State Bar Association as "ADR Practitioner of 1999-2000" and "General Practitioner of 1994", Mr. Isaacs is a frequent journal author, multi-media contributor, and public speaker. He is a former Adjunct Professor at Seton Hall Law School and Rider University.

Not many responses but as an FAA employee I just want to say that the FAA is the most politically correct, screwed up organization in the federal government.

There have been more incompetent minorities hired and promoted in my 24 years in this organization that it is simply mind numbing. And, Mineta is a boob. If Bush is able to win a 2nd term, I hope Mineta is shown the door fast!

MoodyBlu

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