U.S. DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION

WAYNE R. MESSINGER, §

§

Complainant, §

§ DOCKET ID: FAA-2015-0253

v. § DOCKET NO: 16-15-01

§

CLOVER ACQUISITION CORPORATION §

d/b/a PEARLAND REGIONAL AIRPORT, §

§

Respondent. §

RESPONDENT’S RESPONSE TO COMPLAINANT’S APPEAL

OF DIRECTOR’S DETERMINATION

Respondent Clover Acquisition Corporation d/b/a Pearland Regional Airport

(“Respondent” or “the Airport”) hereby responds to Wayne R. Messinger’s (“Complainant” or

“Messigner”) Appeal of the Director’s Determination to the FAA Associate Administrator for

Airports.1 Respondent maintains that the Director’s Determination concluding that the Airport

was not in violation of FAA Grant Assurance 22 (Economic Nondiscrimination) was correct and

well-reasoned, was supported by evidence and law, and should not be overturned. The Airport

responds as follows:

A. Introduction

The sole issue on appeal is whether the Director properly determined that the Airport did

not unjustly discriminate against Complainant under Grant Assurance 22 when it denied

Complainant access to the Fixed Base Operation (“FBO”) building at Pearland Regional Airport

1 The Director issued the Determination on May 26, 2016, and Complainant filed his Appeal on June 20,

2016. This Response is timely pursuant to an Agreed Motion to Extend Response Date to September 9, 2016. The

Agreed Motion was timely filed July 6, 2016.
Respondent’s Response to Complainant’s Appeal of Director’s Determination—Page 2

(LVJ) in Pearland, Texas.2 Assurance 22 requires that an airport accepting AAIA grant funds set

reasonable conditions for the airport’s use that are not unjustly discriminatory. In his Appeal,

Complainant presents a mostly rambling diatribe about murder plots and conspiracies against

him, all alleged to have occurred after the access denial about which he complains. Complainant

presents no evidence of unjust discrimination that would provide a basis to overturn the

Director’s well-reasoned and detailed Determination. The Airport’s decision was reasonable to

ensure a safe environment for its employees, and Complainant has failed to show that he was

treated less favorably than another user would have been under same or similar circumstances.

It is important to note that Complainant is a former employee of the Airport, and thus his

relationship with Respondent is not simply that of a private pilot. He was terminated as Airport

Operations Manager for a pattern of inappropriate and harassing behavior toward an office

employee, and banning him from that same office after his termination was a reasonable

personnel decision by the Airport. Complainant was still given unfettered access to the rest of

the Airport’s facilities in his role as a pilot; he simply could no longer enter the office from

which he was fired for workplace harassment. As the Director stated, “it is not the role of the

FAA to adjudicate employment disputes or claims of harassment, and we decline to do that

here.” (Director’s Determination, at 12). Moreover, Complainant’s ranting, irrelevant

accusations and conspiracy theories contained in his Appeal only serve to underscore the very

real concerns the Airport had at the time it took the action at issue here.

2 Complainant has not appealed the Director’s dismissal of his discrimination claim under Grant Assurance

30 (discrimination based on race, creed, color, national origin, sex, age, or disability) and Respondent has not

appealed the Director’s denial of its motion to dismiss based on non-applicability of the grant assurance obligations

to a private construction on private property, or its motion for summary judgment.
Respondent’s Response to Complainant’s Appeal of Director’s Determination—Page 3

B. Burden of Proof and Standard on Appeal

The Director’s Determination dismissed the complaint after investigation, and thus a

hearing is not required by law, nor has it been requested. (14 C.F.R. §16.33 (b)). The burden of

proof on appeal, however, is contained in the Regulation on appeals resulting in hearings, and

rests squarely on the proponent of the request for agency action, here, the Complainant. (14

C.F.R. §16.229 (b)). To prevail on appeal, the Complainant has the burden to convince the

Associate Administrator that the Director’s Determination 1) was unsupported by a

preponderance of evidence contained in the record, 2) was not made in accordance with law,

precedent and policy, 3) that Complainant’s questions on appeal are substantial, and 4) that

prejudicial errors occurred. (14 C.F.R. §16.33 (e)). Complainant meets none of these burdens in

his Appeal, and rather, simply disagrees with the Determination in a rambling narrative about

conspiracies, and making irrelevant allegations, most of which were introduced for the first time

on Appeal.3

C. Factual Findings in Director’s Determination Relevant to Appeal

Messinger was hired as Airport Operations Manager of the Pearland Regional Airport in

March 2004. As Airport Operations Manager, Messinger supervised office personnel, including

Leah Langford. (FAA AR at Item 3, Exhibit 1, ¶ 3, page 18).4In 2013, Texas Aviation Partners

(TAP) took over management of the Airport, and, as part of the transition, interviewed

employees including Complainant and Ms. Langford. During these interviews, TAP learned that

Complainant had taken up residence in the FBO office (despite the absence of a shower or

3

14 C.F.R 16.33 (f) requires that “[a]ny new issues or evidence presented in an appeal or reply will not be

considered unless accompanied by a petition and good cause found as to why the new issue or evidence was not

presented to the Director.” Complainant had failed to petition to introduce new issues or evidence in this matter.

4 Respondent incorporates herein the administrative record in this proceeding as referenced in the Index

attached to the Director’s Determination as Exhibit 1. Administrative Record is cited as (FAA AR at ___.)

Inasmuch as all of the documents in the Administrative Record are set forth under “Exhibit One” respondent has

omitted the designation of Exhibit 1 for ease of citation.
Respondent’s Response to Complainant’s Appeal of Director’s Determination—Page 4

kitchen) and had engaged in a pattern of harassing conduct toward Ms. Langford. (FAA AR at

Item 3, Exhibit 1, ¶¶ 4 and 5, page 18; Item 3, Exhibit 1B, pages 329-334). Based on these

concerns, TAP decided to retain Ms. Langford as an employee and terminate Complainant’s

employment on September 27, 2013. (Director’s Determination, at 3; FAA AR at Item 3,

Exhibit 1B, page 155-156). During the September 27, 2013 termination meeting, Complainant

was instructed, and he agreed, not to enter the FBO. (FAA AR at Item 3, Exhibit 1, ¶ 8, pages

18-19).

Despite the termination and instruction, Complainant continued his pattern of harassment

and unwelcome contact with Ms. Langford, and on October 18, 2013 sent her an email that

stated, in part: “The thing that has depressed me the most is that you wouldn’t see me and

wouldn’t answer my emails.” (FAA AR at Item 3, Exhibit 1B, page 175). On October 22, 2013,

Ms. Langford emailed Complainant to reiterate that, per TAP’s instructions, he was to stay out of

the FBO. (FAA AR at Item 3, Exhibit 1B, pages 178-179). Shortly after, Complainant

responded with an email objecting to the “tone” of Ms. Langford’s email, and her “apparent

hostility.” Also in that email on October 22, 2014, Complainant told Ms. Langford that there

were “airport people” against her, but said he agreed to leave her alone. (FAA AR at Item 3,

Exhibit 1B, page 178). Yet, On November 8, 2013, Complainant emailed Ms. Langford yet

again, purporting to give her advice on how to do a better job. (FAA AR at Item 3, Exhibit 1B,

page 172). After observing Complainant enter the FBO in June 2014, Ms. Langford again

reminded Complainant not to enter the FBO by email dated June 15, 2014. (FAA AR at Item 3,

Exhibit 1B, page 146).

All allegations in Complainant’s appeal (regarding, for example, hit men, murder plots,

corruption of others, a private club’s conspiracy against him) are not only outlandish, but are
Respondent’s Response to Complainant’s Appeal of Director’s Determination—Page 5

irrelevant to this action and newly introduced on appeal. Complainant’s bizarre allegations,

moreover, are alleged to have occurred well after Complainant was first barred from the FBO,

verbally on September 27, 2013 during his termination meeting, and then in writing on October

22, 2013. (FAA AR at Item 3, Exhibit 1B, pages 178-179). Even his alleged “safety complaint”

leading to his retaliation claim did not occur until 2014, after he was told to no longer enter the

FBO. (Complainant’s Formal Complaint, ¶ 2 (5/15/14 alleged incident of hitting tree; 6/9/14

report to TxDOT).

D. Argument and Authorities

Messinger was excluded from the FBO for legitimate business reasons—the maintenance

of a workplace safe from harassment and the efficient operation of the Airport by competent

employees—that have been consistently applied. Messinger has not been subjected to

unreasonable or unjustly discriminatory conditions.

Grant Assurance 22, as relevant to this Appeal, provides as follows for covered fixedbased operators:

22. Economic Nondiscrimination.

a. It will make the airport available as an airport for public use on

reasonable terms and without unjust discrimination to all types,

kinds and classes of aeronautical activities, including commercial

aeronautical activities offering services to the public at the airport.

* * *

h. The sponsor may establish such reasonable, and not unjustly

discriminatory conditions to be met by all users of the airport as

may be necessary for the safe and efficient operation of the airport.

i. The sponsor may prohibit or limit any given type, kind or class of

aeronautical use of the airport if such action is necessary for the

safe operation of the airport or necessary to serve the civil aviation

needs of the public.
Respondent’s Response to Complainant’s Appeal of Director’s Determination—Page 6

The evidence investigated by the Director and as outlined in the Determination demonstrates that

the Airport has not unjustly discriminated against Messinger, but instead has taken such

reasonable actions as are necessary for the safe operation of the airport.

The agency has interpreted the term ‘unjust discrimination’ “to require a showing that a

party similarly situated to the complainant was treated preferentially.” See R/T 182, LLC v. FAA,

519 F.3d 307, 309 (6th Cir. 2008). Assurance 22 allows a sponsor to refuse to grant an airport

user’s request when it has not granted a similar request to another or when the sponsor had a

reasonable explanation for its refusal. See Aviation Ctr., Inc. v. City of Ann Arbor, Docket No.

16-05-01, 2005 WL 3722716, Director’s Determination (Dec. 16, 2005) at *22. To prove unjust

discrimination in violation of Assurance 22, Complainant has the burden to prove that he

“requested similar terms and conditions as other similarly situated airport users and was denied

for unjust reasons.” Sterling Aviation, LLC v. Milwaukee Cnty., Docket No. 16-09-03, 2010 WL

10241056, Director’s Determination (April 13, 2010) at *15. Complainant shows neither that

he was treated differently than other similarly situated operators nor that the denial was unjust.

1. Messinger was not treated less favorably than other similarly situated

airport users.

Messinger does not identify any similarly situated airport users who have been granted

access to the FBO, and indeed there are none. There is no other Airport user who the Airport

believed had engaged in a pattern of harassing conduct aimed at an Airport employee. (FAA AR

at Item 3, Exhibit 1, ¶10, page 19). Were the Airport to believe that any other user had engaged

in such conduct, such user would be excluded from the area where the harassed employee works,

just as Messinger has been. (FAA AR at Item 3, Exhibit 1, ¶11, page 19). The Airport acted as

a reasonable employer and has a legal and moral obligation to ensure that its employees are

given a workplace free from unwanted harassment.
Respondent’s Response to Complainant’s Appeal of Director’s Determination—Page 7

2. Messinger’s exclusion from the FBO was not unjust.

The Complainant has failed to carry his burden to show the Director’s findings that his

exclusion from the FBO was not unjust, were unsupported, outside of the law, or made with

prejudicial error. This case closely mirrors the facts presented to the D.C. Circuit Court of

Appeals in Ashton v. FAA, 181 Fed.Appx. 2 (D.C. Cir. 2006). In that case, the Concord Regional

Airport terminated a user’s permit to use an airport hangar after he repeatedly “photographed,

bothered, and harassed other tenants at the airport . . . under the guise of collecting information

concerning the Airport.” Ashton v. City of Concord, Docket No. 16-02-01, 2003 WL 22257715,

Director’s Determination (Aug. 22, 2003) at *4. The Director determined that “Ashton’s

inappropriate, non-aeronautical behavior resulted in Respondent’s right and proper termination

of his hangar lease,” and rejected the complainant’s Assurance 22 complaint. Id. at *22. The

Court of Appeals affirmed that determination. Ashton, 181 Fed.Appx. at 2. The Director in the

case at hand accepted this precedent as establishing “the principle that inappropriate actions by

an individual can be sufficient grounds to limit his or her access to otherwise public airport

facilities. (Director’s Determination, at 11).

Likewise, in AeroWays, Inc. v. Delaware River & Bay Authority, Docket No. 16-09-12,

2010 WL 3826304, Director’s Determination (Aug. 30, 2010), an airport user complained of its

exclusion after a series of airport rules violations, including damage to airport property and

nonpayment of rent. Id. at *4. Finding the exclusion not to be unjust, the Director observed,

“[a]n airport sponsor acts as a proprietor with regard to managing its airport to certain reasonable

levels of service, personal decorum, business professionalism and financial responsibility.” Id. at

*19 (quoting SeaSands Air Transp., Inc. v. Huntsville-Madison Cnty. Airport Auth., Docket No.

16-05-17, 2006 WL 4393154, Director’s Determination (Aug. 28, 2006) at *21). “Grant

Assurance 22 . . . allows a sponsor to apply a standard for reasonable security, personal behavior,
Respondent’s Response to Complainant’s Appeal of Director’s Determination—Page 8

and rules of tenancy.” Id. This principle was affirmed in the Director’s Determination in the

underlying matter, at 12.

In Moore v. Sumner County Regional Airport Authority., Docket No. 16-07-16, 2009 WL

9733219, Director’s Determination (Feb. 27, 2009), the airport evicted the complainant after a

series of business and personal disputes, including the complainant’s parking a mobile home at

the airport and blocking other users’ hangars. Id. at 8-10. In finding no unreasonable or unjust

discrimination, the Director observed that “the Federal Grant Assurances are not intended to

protect non-aeronautical uses of airport property.” Id. at *37. Hence, the Director concluded

that the airport did not unjustly discriminate against the complainant by excluding her for

violation of airport rules concerning parking and pets. Id.

The FAA has consistently held that airports have broad proprietary authority to manage

the airport to ensure that it remains open and available for aeronautical users. The determination

of reasonableness must be based on an objective consideration of a sponsor’s actions under the

circumstances at the airport, not on whether the sponsor granted or refused to grant a

complainant’s demands. See Jimsair Aviation Servs., Inc. v. San Diego Cnty. Reg. Airport Auth.,

Docket No. 16-06-08, Final Decision (April 12, 2007) at *5. As the Director in the current case

stated, “it is not the role of the FAA to adjudicate employment disputes or claims of harassment,”

and “the Airport has the right to protect its employees when confronted with workplace

harassment.” (Director’s Determination, at 12). The Director accurately found that “the Airport

management was clearly having problems with the Complainant, and such problems can be a

ground to limit a person’s access.” (Id.). The Director further stated that the FAA should not

question an airport sponsor’s “taking reasonable action to address a real or perceived harassment

situation at the Airport, by a tenant,” recognizing that the Airport must show only that its actions
Respondent’s Response to Complainant’s Appeal of Director’s Determination—Page 9

were reasonable under the circumstances, and does not have to prove them ultimately correct.

(Id.).

Complainant’s exclusion only from the FBO was an intentionally narrow remedy to

address the harassment concern, and the Airport took care not to impair his use of the Airport for

legitimate aeronautical uses. Complainant may continue to use the Airport’s runways and

taxiways; he may continue to house his aircraft in the hangar in which he has a sublease; he may

continue to visit other airport users. He may purchase fuel from the FBO through a self-service

pump and obtain weather information via the internet or by phone. (FAA AR at Item 3, Exhibit

1, ¶12, page 19.) Messinger’s exclusion from the FBO has minimal impairment on his use of the

Airport in his role as a pilot.

E. Conclusion

Complainant fails to identify any similarly situated individual who received more

favorable treatment. Moreover, Complainant’s behavior justified CAC’s action, consistent with

prior determinations of the Director. The undisputed material facts therefore demonstrate that

the action taken by Respondent was therefore both reasonable and nondiscriminatory, and

Respondent is entitled to a determination that it did not violate Assurance 22 as a matter of law.
Respondent’s Response to Complainant’s Appeal of Director’s Determination—Page 10

Respectfully submitted,

/s/ James F. Parker, III

JAMES F. PARKER, III

Texas State Bar No. 24027591

jparker@lglawfirm.ccom

SHEILA B. GLADSTONE

Texas State Bar No. 07993550

sgladstone@lglawfirm.com

LLOYD GOSSELINK

ROCHELLE & TOWNSEND, P.C.

816 Congress Avenue, Suite 1900

Austin, Texas 78701

Telephone: (512) 322-5800

Facsimile: (512) 472-0532

ATTORNEYS FOR RESPONDENT

CERTIFICATE OF SERVICE

I hereby certify that on this 9th day of Septmeber, 2016, the foregoing was

electronically filed via e-mail filing at 9-AWA-AGC-Part-16@faa.gov and served via United

States Postal Service, First Class Mail and e-mail to the following:

Wayne R. Messinger

2911 Ocean Way

League City, Texas 77573

Ginevan4@gmail.com

/s/ James F. Parker, III

James F. Parker, III