Reverse Discrimination
By Daniel Pulliam
dpulliam@govexec.com
A Federal Aviation Administration employee recently settled an employment discrimination case where he said he was passed over for promotions because of his gender and race.
Michael C. Ryan of Toms River, N.J., who worked at an FAA research and development facility as a GS-14 manager, said that between 1995 and 1997 he was denied eight promotions to GS-15.
After complaining to the FAA, Ryan went to the Equal Employment Opportunity Commission. Nine years later, a formal consent order gives Ryan, a 28-year FAA worker, the managerial and supervisory position he wanted. The order also begins a three-year agency wide policy review intended to reform FAA's affirmative action policies.
Ryan, a white male, said he was qualified for the promotions he applied for at the William J. Hughes Technical Center in Atlantic City, N.J., but was passed over by people with less experience because he was not a woman or a minority. During the trial, Ryan's attorney, Hanan Isaacs, argued that four of the seven minority candidates who were promoted were not selected using merit principles, including one person that Ryan trained who had 13 years less seniority.
According to Isaacs, the 22-day trial showed that the candidates were promoted ahead of Ryan so that minority and women promotion quotas could be met. Isaacs said FAA's 1988 affirmative action plan, which called for "a workforce that looks like America by 2000," started to go afoul when it compared the racial and gender composition of technical positions to the general population rather than to the minority composition of the comparable workforce.
Isaacs said that an unwritten but well publicized "50-50" policy" required FAA managers to promote women and minorities at least 50 percent of the time in order to get career and financial incentives. This type of affirmative action has no end-plan and perpetually discriminates against non minorities, Isaacs argued.
Ryan was offered a settlement a year ago that would have given him back pay - which could total about $100,000 - and the promotion, but Isaacs said Ryan refused because he wanted to see the agency's policy change.
John G. Larsen, a FAA senior policy analyst, testified during the trial that the agency was not in compliance with the law after 1992 and that its affirmative action program would "almost always come up with the appearance of under-representation."
Larsen, a 36-year FAA employee, said that after a 1995 Supreme Court ruling which found that preferential treatment based on race almost always is unconstitutional, even when it is intended to benefit minority groups that suffered injustices in the past, the agency's affirmative action policies became illegal.
He said the FAA refused to conduct a review requested by the Clinton administration following the ruling that would have brought the agency back into compliance with affirmative action laws. "The culture of the agency was one, in my opinion, that did not entertain challenges or disagreement ... and nothing changed," Larsen said.
The agency did not admit liability in the settlement, but did agree to start a three-step comprehensive review of its programs and policies on hiring and promotion to put them into compliance.
A Justice Department spokesman said the department was happy to resolve the nine-year-old case. He said that with the assistance of the court, the department was able to reach a settlement that is fair to both parties and upholds the FAA's commitment to ensure a workplace free of unlawful discrimination of any form.
Michael C. Ryan v. Federal Aviation Administration, U.S. District Court for the District of N.J. ( 99-4128), Oct. 6, 2004.
Judgeships Challenged
The Justice Department agreed to pay $11.5 million to white males not selected as immigration judges during 1994 and 1995 as part of a class-action settlement.
Lawrence D. Durnford and Mark Glickman, the class agents in the case, filed complaints against the department's Executive Office of Immigration Review, alleging that they were discriminated against on the basis of race and gender when they were not given federal immigration judgeships. There are as many as 550 white men expected to make a claim to the monetary award.
After nearly nine years in litigation and five months of mediation, the agency and those rejected for immigration judgeships in the mid-1990s agreed to the $11.5 million settlement, reaching a principle agreement in January. Because the case still is in litigation, Greg Gagne, a spokesman for the EOIR, said he could not comment.
A fairness hearing on the adequacy and reasonableness of the settlement is scheduled for Nov. 5 at the Embassy Suites Hotel in Alexandria, Va.
The award, announced Sept. 27 in the Federal Register, states that there will be no injunctive relief, and the money will be made available by the claims administrator to any white male rejected for the position of immigration judge from 1994 to Oct. 31, 1995.
Durnford originally filed the complaint on March 1, 1996, claiming he was discriminated against when he was rejected for an immigration judgeship because he is a white male. The Equal Employment Opportunity Commission began hearing testimony in September 2002, deposing 35 witnesses on the merits of the case.
Under the settlement, the class' lawyers will receive $3.97 million of the $11.5 million in fees and the cost of expert witnesses.
Lawrence D. Durnford and Mark Glickman, class agents v. Justice Department, Equal Employment Opportunity Commission ( B-96-2206), Sept. 15, 2004.
