Princeton Attorney Hanan M. Isaacs Settles Nationally Significant Employment Discrimination Case with the Federal Aviation Administration; Federal Judge Tells Plaintiff , "You, Sir, Are A Winner"

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NEWS-For Immediate Release

Newark, NJ (October 19, 2004) - Princeton attorney Hanan M. Isaacs has settled the nationally significant employment discrimination case of Michael C. Ryan, who alleged that the Federal Aviation Administration (FAA) repeatedly passed him over for promotion because he was white and male. The case, Michael C. Ryan v. Norman Y. Mineta, Secretary, U.S. Department of Transportation , pitted merit promotion principles against the FAA's unlawful affirmative action program. Mr. Ryan won the case after nine-and-one-half years of administrative hearings and litigation. Mr. Ryan and the FAA entered into a formal Consent Order signed by Chief Judge John W. Bissell of Federal District Court, Newark, New Jersey on October 6, 2004.

Mr. Ryan's employment discrimination case is part of a national trend of non-minorities in federal employment who were passed over for promotion because of their gender and skin color. Following Mr. Ryan's settlement, the United States Department of Justice (DOJ) settled a class-action lawsuit for $11.5 million with as many as 550 white men who faulted unlawful affirmative action plans as the reason they were not chosen for high-profile jobs within the DOJ.

Judge B issell heard twenty-two days of trial testimony before the FAA decided to settle with Mr. Ryan. In the trial process, Mr. 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.Hanan M. Isaacs represented Mr. Ryan and US Attorney Christopher Christie represented the Secretary of the US Department of Transportation.

"After 9 years of delay, this settlement gives Mike Ryan exactly what he asked for," said Mr. 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 (explained below). Mike will be promoted to a GS-15 managerial and supervisory position at the Hughes Technical Center. He gets a substantial upward salary adjustment, eight years of back pay, plus interest; and we were awarded a $360,000 counsel fee for the 2,500 hours we spent on the case." Isaacs continued, "Judge Harold Ackerman, a federal judge who supervised settlement negotiations, told my client, 'You, sir, are a winner.'" "After all of our hard work, Mike and I could not be happier with this outcome," said Isaacs.

Michael C. Ryan is a white male employee at the FAA's William J. Hughes Technical Center, in Atlantic City, New Jersey. The FAA had repeatedly denied Mr. Ryan's promotion bids, despite his respected 28-year career at the Agency. 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. Mr. Ryan coordinated a training program attended by one of the eight selectees, an African American woman, recruited by the FAA under a special program for minorities and women. When promoted ahead of Mr. Ryan, this individual had 13 years less seniority than he did.

Mr. Ryan showed at trial that four of the seven challenged applicants were not merit-selected, but rather were chosen so that selecting officials and managers could meet the FAA's minority and female promotion quotas established under an unlawful affirmative action plan. He 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. 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. Mr. Ryan's lawsuit sought to have those policies declared void as a matter of federal constitutional and statutory law.

Mr. Ryan has been an FAA employee since 1976. Until 1986, when his career stalled, Mr. Ryan had received numerous awards and promotions, rising steadily to a GS-14 level. In 1988, the FAA produced an affirmative action plan, calling for "a workforce that looks like America by 2000." But in reports sent to the highest levels of FAA management in the 1990's, Mr. Ryan's expert witness told the FAA that its plans violated U.S. Supreme Court case law, as interpreted by DOJ guidelines issued for federal agencies. That witness, John G. Larsen, a senior policy analyst for the FAA, testified at trial along with two other senior managers who recognized that the FAA's affirmative action policies were fundamentally flawed. According to Larsen, the Agency never conducted the Adarand review that the Clinton Administration requested in 1995.

Larsen also testified that the FAA had no history of discriminatory hiring and promotion patterns to support any claim that it had engaged in ongoing discrimination against women and minorities. Thus, the FAA had no compelling interest in its remedial promotion program, a condition established by the U.S. Supreme Court's leading decision on point from 1995, Adarand Constructors v. Pena, which challenged mandatory minority set-asides in federal contracting. Adarand also was filed against the U.S. Department of Transportation. In Michael Ryan's case, trial testimony showed that the FAA relied on manipulated statistics to create the impression that a lawful basis for 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 Mr. Isaacs. 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 used all the time in the private sector," said Isaacs.

About Hanan M. Isaacs

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.