### UNITED STATES DEPARTMENT OF TRANSPORTAnON FEDERAL AVIA nON ADMINISTRATION

WASHINGTON,

DC

LARRY L. DAVIS Complainant, ) ) ) ) ) 

### )" ) ) ) 

### Docket

No. 16-10-01 

### v.
JA CKSONMUNlCIPALAmPO ItT AUTHORITY, Respondent.

DIRECTOR'S DETERMINATION
I. INTRODUCTION

This matter is beforethe Federal Aviation Administration (FAA) basedon the formal Complaint

filed in accordance

with FAA Rulesof Practice for Federally

AssistedAirport Enforcement

Proceedings

(FAA Rulesof Practice), 14 Codeof Federal Regulations (CFR) Part 16.

Mr. Larry L. Davis, (Complainant) hasfiled a Complaintpursuant to 14 CFR Part 16 against he Jackson

Municipal Airport Authority (JMAA or Respondent) alleging Respondent

is in violation of 49 CFR Part26, Participation by Disadvantaged Business Enterprises

in Department of Transportation Financial Assistance

Programs,

and 49 CFR Part 23, Participation of Disadvantaged Business Enterprise in Airport Concessions.

1 The Complainant

filed its Complaintwith the FAA on February 26, 2010, and it was docketed

by the FAA on March 18,2010.
The Complainant

has been employed

by JMAA since February 2004 and served

asthe JMAA Disadvantaged

Business Enterprise

Liaison Officer (DBELO) and Airport Concession

Disadvantaged

Business Enterprise

Liaison Officer (ACDBELO) from June 16, 2006 until November 1,2008. As the JMAA DBELO and ACDBELO, Mr. Davis' duties included implementing all aspects

of JMAA's Disadvantaged Business Enterprise(DBE) and Airport Concession Disadvantaged

Business Enterprise(ACDBE) programs.

The Complainant

is currentlya Compliance Analyst for JMAA. The Complainant

is presently

responsible

for collecting data,preparing reports,and monitoring compliance

with the provisionsof the DBE (49 CFR Part 26) and ACDBE (49 CFR Part 23) programs.

I FAA Exhibit 1, Item 1.



### 1The Complainant allegesRespondent

failed to adhere

to rules, regulations,

and grant conditions, (written and implied) of signed financial agreements

with the United States Department

of Transportation

(DOT) andthe Federal

Aviation Administration under the Airport Improvement

Program(AIP).2 The Complainant claims the administrativebody of JMAA repeatedly

ignored all verbal and written input from him while serving in the role ofDBELo.3

In addition,

the Complainant

claimsthe Respondent's DBE programis not narrowly tailored as it relates

to goal settingon federaland state assisted projects and contracts.4 Specifically,the Complainant claimsthe Respondent

arbitrarily establishes

goals on Moreover,

the Complainant

alleges that from October 1, 2008,through February 25, 2010,goals established

on projectslack any substantial relationship

to defmed discriminatoryremediation objectives.S

The Complainant

claims the Respondent

setrace conscious

goals on every project without regard to a coherent

policy or any defmitive goal setting methodology.6 The Complainant

asserts that all project goalsestablished on federallyfunded projects and contracted

out from October 1,2008, until February 25, 2010, including construction andprofessional

service contracts,

lack the due diligence and requisitefindings to meet narrow tailoring requirements

for goal setting,goal compliance,

and defmitive DBE programadministration. 7

The Complainant

also alleges

the Respondent

has violated49 CFR § 26.1

09(d) byretaliating against

him by denying him access to information and vital resources needed to complete

his assigned

duties effectively as Compliance Analyst as a direct resultof his public assertions.8 In addition,the Complainant alleges he has experienced retaliatoryand adverse

employment

actions because of his public assertions

made to JMAA's administrativebody andthe JMAA Board of Commissioners. These adverse employment

actions include "vague, unsubstantiated, unachievable,

imbalanced,

and wrongful employee

performance

evaluations.,,9

Moreover,

the Complainant

claims he has experienced

isolation, and disparate

treatment

in retaliationfor bringing these issues to the attentionof the administrative body and Board of Commissioners of the JMAA.1o
Respondent

deniesit hasfailed to adhere to the rules, regulations, and grantconditions, (written and implied) of signed financial agreements

with the United States

Department of Transportation,

and the Federal

Aviation Administration, under the Airport

2 Id. 3Id. The Complainant

did not include any exhibits in his Complaint document; however,he included several numberedand unnumbered "points." Point #1 asserts the Respondent

ignored input from the Complainant. 4rd. Point #3 .5 rd. Point #5 6 rd. Point #4 7 rd. Point #5 8 rd. Page 5, Paragraph

4. 9.Id. 1°1 rd. Page5, Paragraph

5.

2Improvement Program. The Respondent

states in its Answer thatthe Complainant has failed to prove any such

violations of 49 CFR Parts 23 and 26 by a preponderance of reliable, probative, andsubstantial evidence. I I The Respondent

counters that the Complainant

lacksstandingin his claim thatthe Respondent arbitrarily established

raceconscious

goals underParts

23 and 26.12 In addition,the Respondent argues that the Complainant'sclaim of retaliation via poor performance

evaluations

is not supported

by the record. The Respondent counters thatthe Complainant's

negative performance evaluations

are an accurate

and honest

assessment

of the Complainant's

job performance. The Respondent

addsthatthe evaluations serve as evidence

of JMAA's determination to upgrade its technical compliance

in certificationand contractingunder Parts 23 and 26

- areas for which the Complainant hasbeen primarily responsible.13 The Respondent recommends

the Director dismiss

the Complaint

with prejudice.

IL THE AIRPORT

Jackson-Evers

International

Airport is a public-use,small-hubcity ownedcommercialserviceairport in Jackson, Mississippi. The Jackson Municipal Airport Authority (JMAA) owns and operates Jackson-Evers

International

Airport, and one other airport, (Hawkins Field) and is the airport sponsor for the purposes

of compliance

with federal statutes, regulations,

and grantassurances.

In each of the fiscal yearsfrom 2006 through the present,

JMAA receivedfederal

fmancial assistance

underFAA's Airport Improvement

Program(AIP) to finance in whole or in part the planning and development of Jackson-Evers

International

Airport. The AIP program is a grantprogramauthorized by the Airport and Airway Improvement Act, 49 V.S.C. § 47101, et seq. As a recipient of federal AlP funds,the Respondent is subject to all grant assurances,

including the assurance

to comply with the requirements of Title 49 CFR Parts

26 and 23, the DBE and ACDBE regulations

of the U.S. Department

of Transportation.


### III. BACKGROUND

AND PROCEDURAL

mSTORY

A. BACKGROUND

From February

2004 to present,

the Complainant

has been employed

with the JMAA asa Compliance

Analyst. The Complainant is responsible

for collecting data,

preparin~ reports and monitoring compliance to the provisions of the JMAA DBE Program..

In February

2006, the Respondent

authorized

the JMAA staff to beginworking on a budget for aNew Disparity Study. 16 On June 16,2006,the JMAA Director of Legal Compliance,

resigned. The Respondent states in its Answerthe JMAA Chief Executive Officer (CEO) decided

to not to fill the position and instead reassigned

certain duties of

11FAA Exhibit 1, Item 6, page 41. 12 Id. 13 FAA Exhibit 1, Item 6, exhibit 12. 14 FAA Exhibit I, Item 6, page 42. IS FAA Exhibit 1, Item 1. In the body of his Complaint, the Complainant describes his job responsibilities. {See page 2, paragraph 1.] 6 FAA Exhl'bit I, Item 1O,exhibit 1.



### 3that position. [FAA Exhibit 1, Item 6, page 4.] The JMAA CEO created a new senior level position devotedexclusively to managing

the JMAA DBE Program.l? FromJune 2006 until November

2008, the Complainant

served asthe JMAA DBELO and ACDBELO and was

supervised

by Ms. Bonnie Wilson, Chief Operating Officer (COO) of JMAA. The Complainant was responsible

for implementing

all aspects

of the JMAA DBE and ACDBE Programs. IS In 2007,

the Complainant

requested

additionalsoftware andtechnical supportin order to perform his duties in regard to the DBE Program. Ms.Wilson determined

the softwareenhancements proposed

by the Complainant

were impracticaland impossible to implement.

The Respondent

stated tliat Ms.Wilson saidthe Complainant

could acquire

the necessary

data from existing JMAA financial and project management

programs. Moreover,Ms.Wilson recommended the Complainant

become August2, 2007, Ms. Wilson sent a memorandum

to the JMAA Director of Human Resources

and Administration commenting on the impracticality of the Complainant's proposals. She reiteratedher belief that more could be accomplished if the Complainant were more focused

and assertive

in performing

his own basic duties!O

On Apri128, 2008, Mr. Dirk Vanderleest, JMAA CEO, presented

the JMAA Board with a Strategic

Plan that included creating the new position of DBE Director that would be responsible

for upgradingand managing the JMAA DBE Program. The Strategic Plan also included issuinga Request for Qualifications (RFQ) for a consultant o prepare

the New Disparity Study.21 Sixteen applicants

applied for the DBE Director position. The Respondent

statesin its Answer that the Complainant applied for the DBE Director position. The Complainant's application was reviewed

and he was interviewed but was not selected.22

On August28, 2008,the positionof DBE Director was offered to Mr. Jack Thomas of St. Louis, Missouri. Mr. Thomas accepted the position on September 3, 2008.23 One of the major tasks

assigned to the new DBE Director entailedleadinga team to draft the RFQ for the New Disparity Study.24 The RFQ was published on January 23, 2009. Responses

to the RFQ were receivedMarch 27,2009.

On September

29, 2008,the Complainant submitted

the first of a series

of complaints directly to the JMAA Board allegingviolations of Sections 26.13, 26.23, 26.25, and 26.47 of 49 CFR Part 26. The Complainant charged JMAA CEO, Mr. Vanderleest, and Complainant's

supervisor

and COO, Ms. Wilson, with "malfeasance, malmanagement [sic], lack of due diligence or grossneglect of duty.,,25

The Complainant

also alleged

that

17 FAA Exhibit 1, Item 6, exhibit 4. 18 FAA Exhibit 1, Item 1. 19 FAA Exhibit 1, Item 6, exhibit 3. 20 Id. 21 FAA Exhibit 1, Item 6, exhibit 4. 22 The Complainant

confirms he applied for the position ofDBE Director and was not chosen. [FAA Exhibit 1, Item 10, exhibit 11.J

. 23 FAA Exhibit 1, Item 6, exhibit 5 provides a description of the duties and responsibilities of the DBE Director. 24 Minutes of an April 28, 2008, JMAA Board Administration Committee Meeting with attached DBE Strategic Plan states

that a RFQ for a Disparity Study was issued. [FAA Exhibit 1, Item 6, exhI"bit 4.] 2S FAA Exhibit 1, Item 6, exhibit 6.

4beginning on June 16, 2006,the date the Director of Legal Compliance resigned, Complainant

had performed

the dutiesof that position in regard to the JMAA DBE Program. Therefore,

the Complainant

stated he believedhe wasentitled to extra compensation

because thosedutiesexceeded

his job description

as Compliance

Analyst.
On November 1,2008, Mr. Thomas began his employment

with the JMAA asthe DBE Directorand also became the ACDBELO/DBELO.26 The Respondent

asserts that at a November

20, 2008, JMAA Board meeting, the Complronant

referenced

the September

29, 2008, Co~laint. The Board did not take any action in reference to the Complaintatthis meeting. 7 However, on December 17, 2008,the JMAA Board adopted

a resolution

stating "the Board finds anddetermines that no material violations of 49 CFR

3729 et seq., commonly known asthe federal False Claims Act, have been

committed by JMAA, Vanderleest

or Wilson, as allegedin the Complaint.28 However, in response

to the Complainant's September 29,2008, Complaint,

the JMAA Board adopted a "second" resolution

to review and compare

the Complainant's

job description

to his actual

duties and responsibilities

after the Director of Legal Compliance resigned. The second resolution

also directed

the Complainant

be advised

that the Board found no material violationsof Part 26. In addition,the second resolution

instructed

the DBE Directorto review the JMAA DBE Program, including issues

and concerns

brought forth by the Complainant,

and to make recommendations for improvement

to the Board. The Board also instructed

the JMAA Human Resources (HR) Director to compare the Complainant's

salaryto the salariesof employees of airports with similar dutiesand responsibilities

and to make any recommendations.29 A letter dated

January 14,2009, from the JMAA Board was forwarded to the Complainant

advising him of the resolutions,

aswell as informing him that he would be under no special scrutinybecause of his Complaintand that he would not be retaliated against. Areminderwas sent to Mr. Vanderleest

and Ms. Wilson not to retaliate against Complainant.

3D

The Respondent

states that in May 2009, after approximately six months

as JMAA DBE Director, Mr. Thomasreceived a Certificateof Appreciationat the National Association for the Advancement

of Colored People (NAACP) Freedom Fund Scholarship

and Awards Banquet

in Jackson,

Mississippi,for his work as JMAA DBE Director:! In June 2009,Mr. Thomas

evaluated

the job performance

of the Complainant

for the first time. His initial evaluation

stated that the Complainant

needed improvementin ten of eleven Competency/Performance Standards

thatwere necessary

for the position of Compliance Analyst.32

These standards

were directly related

to DBE program compliance responsibilities. Furthermore, Mr. Thomas

noted the suggestions

for improvement

made by the Complainant

and the Complainant's

failure to perform his own compliance duties

26 FAA Exhibit 1, Item 6, page 6. 27 Thereare no minutes pertaining to a November 20, 2008,

JMAA Board Meeting in the record of documents. 28 FAA Exhibit 1, Item 6 at 7. 29 FAA Exhibit 1, Item 6, exhibit 8. 30 Id. 3\ The Respondent

has not provided a copy of the certificate of appreciation for the record. 32 FAA Exhibit 1, Item 6, exhibit 10.

~mirroredthe observations madeby Ms. Wilson in 2007,33 The Complainant

responded

to the June 2009 evaluation

by disagreeing

with the findings of Mr. Thomas. Moreover,the Complainant

stated that he assumed

Mr. Thomas

was hired to address

the very issues

the Complainant

had previously boughtto the attention of the Board.34

In June2009, Mr. Thomas was named Robinson

Watson Book Company

Minority Business

Enterprise (MBE) Advocate of the Year.35On September 23,2009, Mr. Thomas

evaluated

the Complainant's

performance

in an annual

performance

evaluation

and observed

no measurable

improvement

in job performance

since the June 2009 performance

evaluation of the Complainant.

On September

24, 2009, Mr. Thomas

presented

the "DBE Program

~~yie~"~9~~!MM improvement

in the areas of Certification, Contracting, ACDBE Program,

and JMAA Outreach.36

The Respondent

stated that Mr. Thomas

did not haveconfidencein the Complainant's ability to carry out the duties of the JMAA DBE Program.37 Mr. Thomas

recommended

hiring an outsideconsultant

to support

the JMAA staff in the following areas: reviewing and, if necessary,

changing the certification status

of all businesses

that were already

certified by the Respondent;

provide certificationtraining; and assisting in the development

and implementation

of a certificationprocess. The Board unanimously concurred

with the findings of the DBE Program Reviewand directed Mr. Thomas

and JMAA staff to implement

those findings.38

The Board did not act on the recommendation to hire an outside consultant,

but did agree

to continue

that discussion

at a subsequent

Board meeting. The Complainant

allegesin his Reply that he was totally unaware of the DBE Program Reviewand did not review it until his Complaint was in progress}9

Also on September

24,2009, Ms Woodward, JMAA Human Resources Adrninisuation Director, presented

the Board with an Assessment of Duties and Responsibilities/Comparative Analysis of Salaryand Benefitsof the Complainant that was requested

by the Board in January

2009.40 This analysis

concluded

the Complainant's compensation

wascomparable

to others with the same

job classification

and that his compensation

shouldremainunchanged.41 The analysis

also determined

additional compensation

for work performed

beyond hisjob classification was notjustified.

33 August 7, 2007, Memorandum from Bonnie Wilson, JMAA COO, to Dirk Vanderleest, JMAA CEO and ReneWoodward. Director of Human Resources and Administration, addressing policy and current Eractices concerns of Complainant. 4 FAA Exhibit 1, Item 6, exhibit 11, "Additional Comments." 35 The Respondent

has not provided a copy of the award for the record. 36 FAA Exhibit 1, Item 6, exbI'bit 13. 37 The Respondent

makes this assertion

in his Rebuttal,

page27. 38 FAA Exhibit 1, Item 6, exhibit 14. 39 fu Complainant's Reply, he states he did not review and was even awareof the existence

of the DBE Review until the processing of his Part 16 Complaint. 40 FAA Exhibit 1, Item 6, exhibit 15. 41 Id.



### 6On October 2, 2009, the JMAA DBE Program was recognized

by the Mississippi Minority Business Alliance for its outstanding contributions

to minority business

development

in the state ofMississippi.42

On October

22,2009, JMAA CEO Mr. Vanderleest submitted

a memorandum

to the Complainant

summarizing

the fmdings of the September 24,2009, "Assessment

of Duties and Responsibilities/Comparative Analysis.,,43

The Complainant

replied to the memorandum

on the same

day. The CQmplainant

did not agree

with the findings and repeated his assertions

made in his initial Complaint. The Complainant stated that his prior evaluations

of Juneand September

2009 to be void of measurable, obtainable, supportive

documentation,

and constructiveness.44

On or aboutNovember

6. 2009,the Complainant filed a Complaintwith the Federal Aviation Administration (FAA).45 The Respondent claims it neverreceived

a formal notice of the filing or a copy of the Complaintfrom the Complainant or the FAA. The Respondent

states that on November 17 and 18.2009, in telephone calls between

the Respondent's

legal counsel

andthe FAA Civil Rights Division. the legal counsel pledged to fully cooperate

with any investigation

of the JMAA DBE Program. The JMAA Board met on November 19,2009, to discuss the FAA Civil Rights Complaint; that meeting resulted in the directive to the JMAA legal counsel and staff to cooperate

fully with the FAA investigation.46

The JMAA Board also reafflrnled their previous direction to staff to treatthe Complainant as any other employee

and not to participate in any retaliatory actionsagainst

him as a resultof his Complaint. In addition,the JMAA Board also directed its legal counsel to assure the Complainant

his complaints

have been.

and will continue to be, taken seriouslyby the JMAA Board.47

On November

20, 2009,the JMAA Board forwarded a letter signed by the Board Chajrman

to the Complainant

acknowledging

the Complaint

filed with the FAA Office of Civil Rightsand assuring Complainant

he Respondent

intended to cooperate

fully with any investigation.48

The Complainant

was also assured

thatthe staff of JMAA had been instructednot to retaliate against him because

of his Complaint.

The Respondent

alleges in its Answerthat on March 16, 201O, the Complainant forwarded

a multi-page email memorandum to the JMAA Board in response to the recommendation

by Mr. Thomas

to hire an outside

consultant.49

The Complainant allegedJMAA would breach its "fiduciary and governance obligations" if it hired an outside consultant. On April 21, 2010,the Complainant forwarded another

memorandum to the Board claiming he could explainthe JMAA DBE Program'sshortcomings in ten minutes. The Complainant also stated

that if the Board agreed

with his

42 The Respondent

hasnot provided a copy of the recognition for the record. 43 FAA Exhibit 1, Item 6, exhibit 19. 44 FAA Exhibit 1, Item 10, exhibit 17. 45 FAA Exhibit 1, Item 6, exhibit 21. An exact dateof the filing is not a part of the record. 46 FAA Exhibit 1, Item 6, exhibit 21. 47 Id. 48 FAA Exhibit 1, Item 6, exhibit 22. 49 The Respondent

has not provided a copy of the March 16,2010, memorandum for the record.

7recommendations, he would withdraw his Complaint. so The Respondent

did not respond to these memorandums.

On April 26, 2010,the JMAA Board aPRroved the scope

of services

for aNew Disparity Study at an estimated

costof$631, 737. 1 The Disparity Study would include methodologies

and data sources that would be applied

to the JMAA DBE Program. The Study would also include private sector disparityanalysis,

a review of race and gender neutral approaches

to promoting DBE participation, a master contract and subcontract database,

a master DBE directory, DBE availability estimates, a JMAA procurement review, and legal standards anddesign

standards

for JMAA DBE programs.

with the Respondent

askingfor a copy of the methodology and goal setting worksheets usedto establish

JMAA DBE goals on all projectsadvertised to the general

public involving federal funds from November 2008 thru May 2010.52

As a part of this request, the Complainant

asked for the sources

used to support

the numbers;

the marketarea applied to each

goal; and informationprovided separately for each goal advertised.

53The Complainant

alleges the Respondent

has completely

ignoredhis recommendations for policy adjustment

and changes,

which has resulted in race conscious goalsbeing set on all projects. The Complainant adds that race conscious

goalswere set on every project contracted

out without regardto a coherent policy or defritive goal setting methodology

.54 The Respondent

handdelivered615 pages of public record documents to the Complainant

on June9, 2010.55

The Complainant

states the only goal setting worksheets

he received

were the goals

he, himself, hadprepared for fiscal years

2008 through 2010.

The Respondent

has submittedDBE annual reports to the FAA as required by 49 CFR § 26.45 (f)(1), describing

the data and corresponding

methodologies

used to attain the overall goal underPart 26 for the applicable fiscal years (FY) 2006-2010 coveredby this Complaint.

56The Complainant

served as JMAA DBELO from June 16, 2006, until November 1, 2008, andwas responsible for calculating

the Annual Goals. The Respondent

states the Complainant

prepared the DBE Annual Reports for FY2007 and FY2008.S7

The Respondent

claims in its Answer that the Complainant was late in preparing

the FY2009 DBE Annual Goal Reportand that Ms. Wilson and Mr. Thomas (who was not yet officially on board) worked together

preparing

the FY2009 DBE

soFAA Exhibit 1, Item 6, exhibit 24, page3. 51 In its Answer, the Respondent providesan estimated

cost of the Disparity Study. 52 FAA Exhibit 1, Item 10, exhibit 30A. 53 Id. 54 The Complainant

alleges this in his original Complaint (page 3) no. 4 55 FAA Exhibit 1, Item 10, exhibit 30. 56 FAA Exhibit 1, Item 6, exhibit 25. The FAA received Respondent's DBE Annual Goal reportsfor FY 2006 through FY 2010. In its Answer,the Respondent statesit has receivedno communication from FAA indicating any violation of Part 26 in the DBE Annual Goals for FY2006-FY20 10. 57 The Complainant

does not deny

this claim by the Respondent and statesin his Reply that he was involved in setting goals prior to the arrival ofDBE Director Mr. Thomas.

8Annual Report.58 The Complainant

alleges in his Reply that it was Ms. Wilson who asked him to "hold off' on completing the 2009Annual Goal.59 The Respondent

states in its Answer that the Complainant calculated

and prepared

the FY2010 DBE Annual Report.6o
The Respondent

acknowledges

the challenges

in setting DBE annualgoals and matching actual DBE participation. The Respondent states in its Answer that it intentionally set its DBE annualgoals late in its fiscal year to capture as complete

as possibleproject progress and payments

for thatyear. The Respondent asserts that it typically hasa small number of projectsthat are subject to Part26. Additionally, the Respondent asserts in its Answer that fluctuations in DBE participation in a single projectcan causeDBE results

I 

## . ts 61 payments

are mu ti~year

paymen

. The Respondent

asserts in its Answerthat it hasnot received any complaints from any non-DBEentities from June 2006to the present

claiming discrimination, nor has it receivedany communication from the FAA in reference to violation of Part 26 in the DBE Annual Reports

submittedfor fiscal years 2006-2010.62

The JMAA submits

triannual goal setting methodology reports on concessions

with the FAA that include data and methodologies

used to obtainoverall concession goals. The Complainant prepared andfIled the JMAA Tri-Annual Concession Goal Reports

for fiscal years2007-2009 and 2010-2012.63Underthe period covered by this Complaint,

the Respondent

has not initiated concession

projectssubject

to Part23. The Respondent has not receivedany communication

from the FAA to indicateany violation of Part23 in the Tri-Annual Concession

Goal Reportsfor fiscal years 2007-2009

and 2010-2012.64

As of the dateof this Complaint,the Complainant is still employedby JMAA in the same positionas Compliance

Analyst and has received increased

pay.65



### B. PROCEDURAL

mSTORY

On February

26, 2010,the Complainant filed its Part 16 Complaintwith no exhibits. [FAA Exhibit 1, Item 1.]

S8 In its Answer,the Respondent allegesthatthe Complainant was late in preparing

the FY 2009 Goals. S9 The Complainant

asserts in his Reply, (page 32) that supervisor Ms. Wilson directed him to "hold off' in Foreparing

the FY 2009 Goals. FAA Exhibit 1, Item 10, exhibit 29; emailsbetween Complainant Larry L. Davis and DBE Director Jack Thomas. 6]Although Respondent's methodology is not challenged by the Complainant,

the methodologywas accepted by the FAA in FY 2006, FY 2007 and FY 2008. (FAA Exhibit 1, Item 15, Exhibit 1). 62 There are no copies of complaints of discrimination for the record. 63 FAA Exhibit 1, Item 6, exhl"bit 30. 64 In reference

to communication

from FAA concerning

Annual DBE Report, copies FY 2006, FY 2007 and FY 2008 FAA review/approval letters can be found in FAA Exhibit 1, Item 15, exhibit 1. 6S FAA Exhibit 1, Item 13.



### 9On March 18,2010, the FAA issuedits Notice of Docketing. [FAA Exhibit I, Item 2.]

OnApril 12, 2010, Respondent filed aMotion for Extension of Time to Answer. [FAA Exhibit 1, Item 3.]

On Apri114, 2010, Complainant Larry L. Davis flied a Motion to Deny Extension of Time to File Answer. [FAA Exhibit 1, Item 4.]

On April 15, 2010, FAA Airports Law Branchsent a letter granting Respondent's request for an extension

of time to file Answer. Respondent's Answer due May 17,2010. [FAA Exhibit 1, Item 5.]

On May 17, 2010, the Respondent filed its Answer, Motion to Dismiss and Affirmative Defense. [FAA Exhibit 1, Item 6.]
On May 26, 2010, the Complainant filed a request

for an extension

of time to reply to Motion to Dismiss. [FAA Exhibit 1, Item 7.]

On May 26,2010, a letter from Respondent to FAA doesnot objectto Complainant's Motion for an Extension of Time to File a Reply until June 28, 2010. [FAA Exhibit 1, 

### Item 8.]

On May 26, 2010, FAA Airports Law Branchsent a letter granting Complainant's request for extension

of time to file it reply. Reply dueJune 28,2010. [FAA Exhibit 1, Item 9.]

On June 28, 2010,the Complainant filed its Opposition(Reply) to Respondent's Motion to Dismiss. [FAA Exhibit 1, Item 10.]

On June30. 2010.the Respondent filed a Motion for Extension of Time to File a Rebuttal. [FAA Exhibit 1, Item 11.]

On July 1, 2010, FAA Airports Law Branch sent a letter grantingthe Respondent's Request for Extensionof Time for Rebuttal. Rebuttal due July 20, 2010 [FAA Exhibit 1, Item 12.]

On July 20, 2010, the Respondent filed a Rebuttal

to Complainant'sReply. [FAA Exhibit 1, Item 13.]


### IV. ISSUES
Upon review of the allegations andthe relevant

airport-specificcircumstances, s1.1mmarized

above in the Background Section, the FAA Director of the Office of Airport Compliance

and Field Operations,

hasdetermined

that the following issues require analysis to provide for a complete review of the Respondent's compliance

with applicable

federal law and policy.

10Issue 1: Whether the Respondent

is presently

in violation of its FAA Grant Assurances

issuedunder

the Airport Improvement Program(codified at 49 V.S.C. § 47107), including Grant Assurance

1, GeneralFederal Requirements; Grant Assurance

30, Civil Rights;

and Grant

Assurance

37, Disadvantaged

Business Enterprises,

and 49 CFR Part 26 (as incorporated into the grantassurances, by establishing

race conscious

DBE goals on federally

funded projectsafter October 1,2008.

Issue 2: Whether

the Respondent

retaliatedagainst

he Complainant

in violation
Respondent.


### V. APPLICABLE FEDERAL LAW AND POLICY

The federal role in civil aviationhas been augmented

by various legislative actions that authorize programs

for providing federalfunds and other assistance to local communities

for the development

of airport facilities. In each such program, the airport sponsor

assumes certainobligations, either by grant agreement or by restrictive covenant'5 in property deeds

and conveyance

instruments,

to maintain and operate

its airportfacilities safelyand efficiently and in accordance

with specifiedconditions. Commitment'5 assumed by airport sponsors

in property conveyance

or grant agreements

are important

factors in maintaininga high degree of safety and efficiency in airport design, construction,

operation

and maintenance,

as well as ensuring the public fair and reasonable access to the airport.

The following is a discussion pertaining

to the Airport Improvement Program,

Airport Sponsor Assurances,

and the FAA Airport Compliance Program.


### A. Airport Improvement Program

Title 49 U.S.C. § 47101, etseq.,providesfor federal airportfinancial assistance for the development

of public-use

airports WIder

the Airport Improvement Program (AlP) established by the Airport and Airway Improvement Act of 1982,

as amended.

Title 49 U.S.C. § 47107, et seq., se~ forth assurances

to which an airport sponsor agrees as a condition of receiving federalfinancial assistance. Upon acceptance

of an AlP grant,

the assurances

become a binding obligation between the airport sponsor

andthe federalgovernment. The assurances made by airport sponsors in AlP grant agreements

are importantfactors in maintaininga viable national airport system.
Part 16 of Title 14 of the Code of FederalRegulations (14 CFR Part 16) contains the rules of practicefor filing complaintsinvolving federally assisted airports. [See FAA Rules of Practice for Federally

Assisted Airport Enforcement

Proceedings,

61 Fed. Reg. 53998 (October 16, 1996).] Complaintsmay be filed underPart 16 allegingviolations of the federal grant assurances

under 49 U.S.C. § 47107or § 47113 for airportsreceiving federal airport improvement

program funds.

1 1The standard federal grantassurances contain a civil rights assurance66 and a Disadvantaged Business Enterprise

(DBE) assurance,67

as well asthe express

requirement

o comply with 49 CFR Parts

26 and23 under Grant

Assurance

1, GeneralFederal Requirements.

Title 49 U.S.C. § 47113 provides authority for 49 CFR Part 26 and requiresthat "The Secretary of Transportation

shalltake affIrmative action to ensure that an individual is not excluded because of race,creed,

color, nationalorigin, or sex from participating in an activity carried out with moneyreceived undera grantunder this subchapter. The Secretary

shall prescriberegulations

necessary

to carry out this section."

with respect

o Department

of Transportation-assisted contracts. [See Participation by Disadvantaged

Business Enterprises

in the Department ofTransportationFinancial Assistance

Programs,

64 Fed. Reg. 5096 (February 2, 1999).] Part 26 appliesto recipients of Federal Airport FlUIds

authorized

by 49 U.S.C. § 47101, et seq. [See 49 CFR § 26.3(a)(3).] Part 26 does not apply to contracts in which the Department of Transportation

doesnot participatein financial assistance. [See 49 CFR § 26.3(

d).] Part 26 replaced

49 CFR Part 23 for DBEs in Department of Transportation-assisted contracts;

DBE airport concessions provisionsof 49 CFR Part 23 were revisedand updated in the Department'sregulationentitledl Part 23-Participation of Disadvantaged Business Enterprise in Airport Concessions. [See 70 Fed. Reg. 14496 (March 22, 2005).]

The sections

of 49 CFR Parts

23 and 26 applicable

to this Part 16 proceeding include §§ 23.1, 23.3,23.9,23.11,23.57,23.59,23.61,23.79,26.7, 26.101,26.105 and 26.109.
Title 49 CFR § 26.7states: (a) You must never

exclude any person

from participation in, deny any person the benefits of, or otherwise

discriminateagainst

anyone in connection

with the award and performance

of any contract

covered by this part on the basisof race,color, sex, or national

origin. (b) In administering

your DBE program,you mustnot, directly or throughcontractual or otherarrangements,

usecriteria or methods

of administration

that havethe effect. of defeatingor substantially impairing accomplishment of the objectivesof the programwith respect

o individuals of a particular race,color, sex or national origin.
The regulation in 49 CFR § 26.7 prohibits not only intentional discrinUnation but also actions that havethe effectof discriminating against individuals on one of the prohibited grounds (e.g., that have a disparate adverse impact on members

of a particular group). The language oj~ paragraph

(b) is similar to that in the Department's longstanding

Title VI regulation(49 CFR § 21.5(b )(2)) and is consistent

with court interpretations of nondiscrimination

statutes in other

66 Grant Assurance

30, Civil Rights. 67 GrantAssurance

37, Disadvantaged

Business Enterprises.

12contexts. [See Supplemental Notice of Rulemaking

62 FR 29548,29551 (May 30,1997) citing Alexanderv. Choate, 469 u.S. 287 (1985); Elstonv. TalladegaBoard of Education,99~7 F.2d 1394

(11th Cir., 1993).] Therefore,

to analyze

the allegations

in this case,

we will consider two primary theories

of discrimination

underTitle VI: intentional discriminationor disparate treatment,

and disparate

impact or adverse

effects.

The regulationin § 26.45 states in pertinent

part, (a)(l) Except

as provided in paragraph (a)(2) of this section,

you must setan overall goal for DBE participation in your DOT-assisted contracts.

the relative availability of DBEs. The following are examples of approaches

that you maytake toward determining a base figure. These

examples

are provided as a starting point for your goal setting process. Any percentage figure derived from one of these examples

should be considered

a basisfrom which you begin when examiningall evidence available in your

jurisdiction. These

examples

are not intended

as an exhaustive

list. Other methods

or combinations

of methods

to determine

a base figure may be used, subject

to approvalby the concerned operating

administration. (5) Alternative methods. You may useother methods to determine

a base figure for your overall goal. Any methodology you choose

must be based

on demonstrable evidence of local market conditions and be designed

to ultimately attaina goal that is rationally related

to the relative availability of DBEs in your market.

The regulation in § 26.51, states, in part: (a) You must meet

the maximum

feasible portion of your overall goal by using raceneutral means

of facilitating DBE participation. Race-neutral DBE participation includes any time a DBE wins a prime contract through customary

competitive procurement

procedures,

is awarded

a subcontract

on a prime contract

that does not carry a DBE goal, or even if there is a DBE goal, wins a subcontract from a prime contractor

that did not considerits DBE status in making the award (e.g., a prime contractor

that uses a strict low bid system

to award subcontrac~).

The regulationin § 26.51(f), states, in part:

To ensure

that your DBE program

continues

to be narrowly tailored to overcome the effectsof discrimination, you must adjustyour useof contract goals as follows: (1) If your approved

projection underparagraph (c) of this section

estimates

that you can meetyour entire overall goal for a given yearthrough race-neutral means, you must implement

your programwithout setting contract goals during thatyear.

13(2) If, during the courseof any year in which you are using contract goals,you deternlinethat you will exceed your overall goal, you must reduceor eliminatethe use of contract

goals to the extentnecessary

to ensure that the use of contract

goalsdoes not result in exceeding

the overall goal. If you deternline that you will fall shortof your overall goal, then you mustmakeappropriate modificationsin your useof raceneutral and/orrace-conscious measures to allow you to meet

the overall goal. The regulations

in 49 CFR §

§ 26.101 and26.105 cover FAA's enforcement authoritie~, in the event FAA finds the recipient in noncompliance.

The regulationin § 26.101(a) states:

formal enforcement

actionsunder § 26.103 or § 26.105 or appropriate program sanctions

by the concerned

operating

administration,such

asthe suspension

or termination

of federalfunds, or refusalto approve projects, grants,or contracts until deficiencies

are remedied. Program

sanctions

may include...in the case of the FAA program,

actions consistent

with 49 U.S.C. 47106(d), 47111(d),

and 47122.

The regulatoryprovision in § 26.105 specificallyprovides for enforcement actionsin FAA programs,

asfollows:
(a) Compliance

with all requirements

of this part by airport sponsors and other recipients

of FAA financial assistance is enforced

throughthe procedures

of Title 49 oJr the United States

Code,including 49 V.S.C. 47l06(d), 47111(d),and 47122, and regulationsimplementing them. (b) The provisions

of § 26.1 03(b) andthis sectionapplyto enforcement actions in FAA programs. (c) Any person

who knowsof a violation of this part by a recipientof FAA funds may file a complaint under 14 CFR part 16 with the F edera1 Aviation Administration Office: of Chief Counsel.
Finally, the requirements found in § 26.1

09(d) regardingretaliation provide: (d) If you are a recipient, contractor, or any other participantin the program,you must not intimidate, threaten,

coerce, or discriminate

against any individual or flrnl for the purpose of interfering with any right or privilege secured by this part or because

the individual or fIrm has

made a complaint,

testified, assisted,

or participatedin any manner in an investigation,

proceeding,

or hearingunder

this part. If you violate this prohibition, you are in noncompliance with this part.


### B. Airport Sponsor

Assurances

14As a condition precedent o providing airport development assistance

under the Airport Improvement

Program, 49 V.S.C. § 47107,

e.t seq., the Secretary

of Transportation

and, by extension,

the FAA must receive certain assurances

from the airport sponsor. Title 49 U.S.C. § 47107(a)

sets forth the statutory

sponsorship

requirements

to which an airport sponsor receiving federal[mancial assistance must agree.
The FAA hasa statutory mandate to ensure that airport owners comply with these sponsor assurances.

FAA Order 5190.6B, FAA Airport Compliance Manual (Order), issued

on September

30, 2009, providesthe policies and procedures to be followed by the FAA in carrying out its legislatively mandated functionsrelatedto federally obligated airport owners' compliance

with their sponsor

assurances.

The FAA considers

it inappropriate

to provide

not be fully realized due to inherent restrictions

on aeronautical

activities.

Federal Grant Assurances

1, GeneralFederal Requirements; 30, Civil Rights;and 37, Disadvantaged

Business Enterprises,

applyto the circumstances set forth in this Complaint.
Grant Assurance

1, General Federal Requirements, states
[The airport sponsor]

will comply with all applicable federal laws, regulations, executive

orders, policies, guidelines,

and requirements

as they relateto the application,

acceptance

and use of federalfunds for this project including but not limited to the following:

FederalLegislation (in pertinent part):

k. 49 CFR Part 23 -Participation by Disadvantage Business Enterprisein Airpon: Concessions.

ffi. 49 CFR Part 26 -Participation by Disadvantaged Business Enterprises

in Department

of Transportation

Programs.
Grant Assurance

30, Civil Rights,

states:
[The airport recipient] will comply with such rules as are promulgated to assure that no person

shall, on the grounds

of race, creed, color, nationalorigin, sex,age, or handicap be excludedfrom participating in any activity conducted with or benefiting from fWlds receivedfrom this grant. This assurance obligates the sponsor

for the period during which federalfinancial assistance is extended

to the program, except wherefederalfmancial assistance is to provide, or is in the form of personal property or real property or interest therein or structures

or improvements

thereon in which case the assurance

obligates the sponsor

or anytransferee

for the longer of the following periods: (a) the period during which the property is usedfor a purposefor which federal financial assistance

is extended,

or for another

purpose involving the provision of similar services

or benefits, or (b) the period during which the sponsor retains ownership

or possession

of theproperty.

15Grant Assurance

37, Disadvantaged

Business Enterprises,

states:

The recipient shall not discriminate on the basis of race, color, national origin or sex in the award and perforIn(Ulce of any DOT -assisted contract or in the administration of it; DBE program or the requirements of 49 CFR Part 26. The recipient shall take all necessary and reasonable steps under 49 CFR Part 26 to ensure nondiscrimination in the award and administration of DOT-assisted contracts. The recipient's DBE program, as required by 49 CFR Part 26, and as approved by DOT, is incorporated by reference in this agreement. Implementation of this program is a legal obligation and

notification to the recipient of its failure to carry out its approved program, the Department may impose sanctions as provided for under Part 26 and may, in appropriate cases, refer the matter for enforcement under 18 V.S.C. 1001 and/or the Program Fraud Civil Remedies Act of 1986 (31 V.S.C. 3801).


### C. The FAA Airport Compliance Program

The FAA discharges

its responsibilities

for ensuring

airport owners' compliance with their federal obligations

through its Airport Compliance Program. The FAA's airport compliance efforts are based

on the obligations

an airport owner accepts when receiving federal grant funds or the transfer

of federal property for airport purposes. These obligations are incorporated

in grant agreements

and instruments

of conveyance

in orderto protect

the public's interest

in civil aviationandto ensure compliance

with federal laws. The FAA Airport ComplianceProgram is designed

to ensure the availability of a national system of safe: and properly maintained public-use

airportsoperated

in a manner

consistent

with the airport owners' federal obligations andthe public's investment in civil aviation.

The Airport Compliance Program does not control or directthe operationof airports. Rather, it monitors

the administration

of the valuable rights pledgedby airport sponsors to the people of the United States

in exchange

for monetary

grants and donations

of federalpropertyto ensure that the public interest

is being served. FAA Order5190.6B,Airport Compliance Manual (Order), sets

forth policies and procedures for the FAA Airport Compliance Program. The Order is not regulatory and is not controlling with regard to airport sponsor

conduct. Rather,it establishes

the policies and procedures to be followed by FAA personnelin carrying; out the FAA's responsibilities for ensuringairport compliance. It provides basicguidance for FAA personnel

in interpretingandadministering the various continuing commitments made to the United States

by airport ownersas a conditionof receiving a grantof federal

funds or the conveyance

of federal property for airport purposes. The Orderanalyzes

the various obligationssetforth in the standard airport sponsor

assurances,

addresses

the nature of those assurances,

addresses

the application

of those assurances

in the operationof public-use airports,and facilitates interpretation of the assurances

by FAA personnel.

The FAA Compliance

Programis designed

to achieve

voluntary compliance

with federal obligationsaccepted

by owners and/or

operators

of public-use

airports developed

with FAAadministered

assistance.

Therefore,in addressing allegations

of noncompliance,

the FAA will

16makea determination asto whether

an airport sponsor

is currently in compliance with the applicable

federal obligations. Consequently, the FAA will consider

the successful

action by the airport to cure any alleged or potentialpastviolation of applicable federal obligation to be grounds for dismissal

of such allegations. [See

e.g. Wilson

Air Center

v. Memphis

and Shelby County Airport Authority, FAA DocketNo. 16-99-10, (8/30/01);upheld in Wilson Air Center, LLCv. FAA, 372 F.3d 807 (C.A. 6, June 23, 2004).]

The Ordercovers all aspects of the airport compliance program except

enforcement procedures,

which are found in FAA Rules of Practice for Federally

Assisted Airport Enforcement

Proceedings

(14 CFR Part 16). Under 49 CFR § 26.105(b), any person who
CFR Part 16 with the Federal Aviation AdministrationOffice of Chief Counsel.

On February

22, 2002, the Director of the Office of Airport Safetyand Standards (now the Director of Airport Compliance and Field Operations)

delegated

to the Deputy Assistant Administrator for Civil Rights the authorityto prepare

and issue director's determinations pursuant to 14 CFRPart 16. [FAA Exhibit 1, Item 16.] [See Albuquerque Valet Parking Service, Norma G. Morris and David Powdrell, v. City of

Albuquerque,

Albuquerque,

NM, FAA Docket No. 16-01-01Final Agency Decisionand Order, at footnote3; upheld in AlbuquerqueValetParking Service v. FAA, Civ. No. 03-575 (D.C. New Mexico, March 31. 2004.] The Deputy Assistant Administrator for Civil Rights position is currently vacant without an acting official and,therefore, the Director of Airport Compliance and Field Operations

is the decision

makerfor the purposes

of issuing

the initial decision for the case herein.68


### VI. ANALYSIS AND DISCUSSION

In this Complaint,

the role of the FAA is to determine:

Issue 1: Whether

the Respondent

is presentlyin violation of its FAA Grant Assurances

issuedunder

the Airport Improvement Program (codified at 49 U.S.C. § 47107), including Grant Assurance

1, GeneralFederal Requirements; Grant Assurance

30, Civil Rights;

and Grant

Assurance

37, Disadvantaged

Business Enterprises,

and49 CFR Part 26 (as incorporated into the grantassurances, by establishing

race conscious

DBE goals on federallyfunded projectsafter October 1,2008.

Issue 2: Whether

the Respondent

retaliated

against he Complainant

in violation of 49 CFR § 26.109asa result of the Part 16 Complaint filed against

Respondent.

The FAA hasdetermined thatthe Complainant

does havestanding

to file a complaint under Part 14 CFR Part 16, contraryto the Respondent's allegation

in its Answer and Rebuttal. Title 49 CFR § 26.1 05(c) presents

an exception

to the requirement

that a

68 The Director of Airport Complianceand Field Operations in the absence

of a Deputy Assistant Administrator for Civil Rights will serveasthe decision maker for the issuance

of the initial decision for this instantcase.



### 17complainant must prove standing

under 14 CFR § 16.23(a). Thus, any person who knows of an airport sponsor's violation of the rules under 49 CFR Part26 -which covers participationby DBEs in DOTs financially assisted programs

-may file a Part 16 complaint. The Complainant is therefore

entitledto [lie the Complaintin accordance with 49 CFR § 26.105(c) and doesnot haveto be directly and substantially affected by anyalleged

noncompliance

by the recipient.
In accepting

federal airport development funds, an airport ownerassumes certain obligations,

memorializedin the grantassurances, which include the responsibilityto comply with 49 CFR Parts 23 and 26 as incorporated in Grant Assurances

I, General

The Respondent

has signedgrant agreements containing

the applicable

assurances

and is, therefore,subject

to its grantassurance

obligations. The FAA has authority under 14 CFR Part 16 and 49 CFR Parts 23 and 26 to obtain relief for violations of the DBE Program.
In the event of findings of noncompliance by FAA, compliance

orders may be issued which may include terminatingeligibility for grants pursuant o 49 U.S.C. §§ 47106(e) and 47111 (d), suspending

the payment

of grant funds,withholding approval of any new application

to imposea passenger

facility charge,

a cease and desist

order, directing the refund of fees unlawfully collected,or any other compliance orderto carry out the provisions

as defined in 14 CFR § 16.3.

The Respondent

is correct in noting that the FAA is without authorityto award money damages to the Complainant

for the claims he seeks

herein. The FAA has enforcement authority over an airport sponsor, but, generally,hasno authority to awarddamages

to persons subjected

to an airport sponsor's

noncompliance

with its grantassurances. [See, e.g., Martyn v. Port of

Anacortes,

FAA DocketNo. 16-02-03 (Director's Determination, 2003).] While the Complainant has requested

an awardof money

damages, the sum of damages alleged to be suffered by the Complainant is not under review in this Part 16 proceeding.Accordingly, the Complainant's request for monetary

and equitable

damages is denied.

The Director will now proceed with the review of the two stated issues.

Issue 1: Whether

the Respondent

is presently

in violation of its FAA Grant Assurances

issued underthe Airport Improvement Program (codified at 49 U .S.C. § 47107), including Grant Assurance

1, GeneralFederal Requirements; Grant Assurance

30, Civil Rights;and Grant Assurance

37, Disadvantaged

Business Enterprises,

and49 CFR Part26 (as incorporated into the grantassurances, by establishing

race conscious

DBE goals on federallyfunded projectsafter October 1,2008.

The Complainant

alleges Jackson Municipal Airport Authority (JMAA) failed to adhere to the rules, regulations, grantconditions,written and implied grantassurances of signed

18fmancial agreements with the United States

Department

of Transportation

(DO1) under the Airport Improvement Program (AIP). The Complainant asserts the JMAA DBE programis not narrowly tailored as it relates to goal setting on federal and state assisted projects and contracts

from October1,2008, throughFebruary 25,2010.69The elements of a narrowly tailored program derivefrom the analysis of cases decided under Disadvantaged

Business Enterprise

law. [See,

Adarand Constructors

v. Pena, 515 U.S. 200,235, (1995); and Northern Contracting Inc. v. fllinois Department of Transportation,

473 F.3d 715 (7th Cir. 2007).] The Complainant alleges that goals set on federaland state

assisted projects by JMAA lacked the requisitefindings to justify the percent of DBE participation. Furthermore, the Complainant

reported the Respondent

set
settingmethodology. The Complainant asserts that he compiled all goalsand goal methodologies

submitted by the Respondent. [FAA Exhibit I, Item 6, exhibit 25.] However,

the Complainant

contends that manyof the goalsincluded in the annualreports were not the~oals publishedto the general public and in mostcases the goalsadvertised were higher. The Complainant claimsthatthe indiscriminatesetting of goals on all federaland state

projects/contracts

by ignoring goal achievement datais in direct violation of Sections

26. 13(a), 26.7(b),26.45(5)ii, and

26.51 (a)(2). The Complainant states in his Reply that the Respondent has "misplaced DBE goals on all none [ sic] federally funded projects" and thatthis practiceremoves the option of measuring race neutral accomplishment.

Thus, all projects

become raceconscious.7]

The Complainant also contends

the Respondent

carelessly

established

race conscious

goals on all projects indiscriminately, which in turn imposed a non-levelplaying field and an undueburden on non-DBEfirms. Therefore, the Complainant

recommends

the Respondent

be sanctioned under various sections,

including sections

26.13(a), 26.7(b ),; 26.45(5)ii; 26.45(£)(4); and 26.51 (a)(2). .There are no sanctioning provisionswithin section 26.7(b), 26.45(5)ii, or 26.45(£)(4). Section

26.51(a)(2)

doesnot exist, nor arethere sanctioning provisions within section

26.51).72

The Respondent

disputes the allegations,

arguingthatthe Complainant's allegations

have not beenproven by any reliable, probative, and substantial

evidence as is requiredin 14 CFR § 16.227. The Respondent retorts thatthe Complainant

did not cite in his Complaintany specific DBE goal in any federallyfunded project from October1,2008, to the present

that he claimsto be "race conscious" andtherefore in violation of Part 26.73 The Respondent

readily admits that establishing and implementing DBE goals is not a precise science. On June9, 2010,the Respondent provided documentation of its goal settingmethodology

to the Complainant.

7 The Respondent

contends that its goal setting methodology

is broadbased

and inclusive. In an April 20, 2010, memorandum to the Complainant,

DBE Director Mr. Thomas directs the CompImnant

o "identify currently certified Mississippi Unified Certification Program MS UCP DBEs and include them in

69 The Complainant

makes this assertionin his Complaint as Point #5. 70 The Complainant

makes this assertion

in his Reply under "Argument," page 19. Complainant also references

exhibits 33, 33A and/or 33B and 33C in his Reply as evidence. 71 The Complainant

makesthis assertion

in his Reply under "Argument," page 20. 72 The Director notes further sanction provisions are included in 49 CFR §§ 26.105 and 26.107. 74 FAA Exhibit 1, Item 13, exhl"bit 42.

19your methodology.,,75 The Respondent

adds the Complainant

should be more "detailed and purposeful" in seekingDBE participation. In its Answer, the Respondent provided the FY 2006-FY 2010 DBE Annual Reports filed with F

AA!6 The Respondent

asserts the Complainant

simply disagrees

with the methodology

usedto establish

DBE goals. The Respondent

concludes

that it has providedevidence to justify the methodologies used to establish

DBE project goals after October 1,2008, and that the record doesnot support a finding of noncompliance with FAA Federal

Grant Assurances.

The record of evidence

shows the Respondent

is in compliance

with FAA FederalGrant Assurances

3O,Civil Rights;

and 37, Disadvantaged

Business Enterprises;

and is in 

### co mp .lj~~wifu.4 9CfR P~.2Q,

In the instantcase,

the Director finds thatthe Respondent set DBE goals according to 49 CFR § 26.45, which outlinesthe goal settingprocess for recipients;

and 49 CFR § 26.51, which addresses

race-neutral

means to meet overall goals.??

Specifically, the Respondent set a goal of 16.96percent

for FY 2006, of which 9.64 percent was derived from raceconscious

means and 7.32 percent

of that goal was

derived from race-neutral means. The 23-page document

containing

the methodology

sets forth in detail the applicationof the process of the steps

containedin the regulations and specificallyanalyzes the race-neutral means usedto increase

the DBE participation.?8 The Respondent

provided multiple examples

of how the base

figure for the relative availability ofDBEs may be established. Per 49 CFR § 26.45(c),

tile examples

cited in the regulations

are not intended

to be exhaustive

lists. In addition, as long as the Airport Concession Disadvantaged

Business Enterprise(ACDBE) and DBE goals,respectively, are based

on demonstrable

evidence of tile availability of ready,willing, and able DBEs relative to all businesses ready, willinf' and ableto participate, an airport may use any methodology to achieve

that goal: The Respondent carried out its responsibilityby not discriminating against persons on the grounds

of race,color, sexor nationalorigin, nor by exclusionfrom participation in any airport activity benefiting from federal funding by following the requirements

in 49 CFR Part26. The record of evidence shows that the Respondent, through its goal setting methodologies, took reasonable

steps to ensure

nondiscrimination on the basis of race,color, sex, or nationalorigin in the awardand performance of any federallyassisted

contract or in the administration

of its DBE Program

or the requirements

of 49 CFR Part 26. The Director finds that the Respondent practicedgood faith efforts and exercised due diligence througha self-assessment80 that identified functional areasin need

of improvement

i.e., contracting,

certification, outreach,

and ACDBE concessions.8)

The areas

identified as needing

improvement,

in and of

7S FAA Exhibit 1, Item 13, exhibit 39. 76 FAA Exhibit 1, Item 10, exhibit 25; overall goals and race conscious/race neutral goal splits are provided for FY 2006-2010. In addition, overall goals and actualgoals for FY 2002-2005 are provided. 77 FAA Exhibit 1, Item 6, exhibit 25 (Ill); Respondent addresses

its race-neutral

methodology. 78 FAA Exhibit 1, Item 6, exhibit 25, page 8. 79 FAA Exhibit 1, Item 6, exhibit 25, is the Respondent's goal setting submittalto the FAA for FY 2006- FY 2008. Goal setting methodologies are included. 80 Respondent

used a DBE Program

Review. 81FAA Exhibit 1, Item 6, exhibit 13.

20themselves, do not translateinto noncompliance with Part 26. Furthermore,

the Respondent

hasdemonstrated

a commitment

to upgrade

its DBE Program. Contrary to the Complainant's

assertion thatthe Respondent

hasfailed to adhere

to the rules, regulations,grantconditions, written and implied grantassurances of signed financial agreements

with the Department

of Transportation

andthe FAA, the Director finds that the Respondent carried out its responsibilityby providing opportunities for DBE participation without discrimination. [See Northern ContractingInc. v. illinois Department ofTransportation, 473 F 3d 715 (7th Cir. 2007). The record makesit clear the Respondent

usesnearlyall of the methods described

in 49 CFR § 26.51(b)

to Among other methods,

JMAA hassponsored

communityoutreach

sessions targeting existing and prospective DBE firms, inserted

public notices in local newspapers in reference to DBE goals for comment, and polled business

leaders in reference

to bonding, insurance,

loans,etc.82 Accordingly, the Director finds that the Complainant has failed to demonstrate

that the Respondent

has not maximized

the portion of its goal that will be met throughraceneutralmeans. The Complainant has not identified any specific DBE goal in any federally funded project from October1, 2008, to the present that he asserts

to be "race conscious"

andthus in violation of 49 CFR Part26. This failure, in additionto the failure to demonstrate

the Respondent

did not maximizethe portion of its goal that would be met throughrace neutral means, reflects the Complainant's

broaderinability to demonstrate thatJMAA's DBE programis in violation of FAA Grant Assurances

issuedunder

the Airport Improvement

Program(codified at 49 U.S.C. § 47107), including Grant Assurance

1, General Federal Requirements; Grant Assurance

30, Civil Rights;and Grant Assurance

37, Disadvantaged

Business Enterprises,

and 49 CFR Part 26 (as incorporated

into the grantassurances, by establishing

raceconscious

DBE goals on federallyfunded projectsafter October1,2008. The FAA is encouraged by the actions

takenby the Respondent to review and upgrade

its DBE Program. The FAA is convinced that the Respondent

has satisfiedits burden

of demonstrating

that its program is narrowly tailored. Therefore, the Complainant's assertion that the Respondent

hasviolated FAA grantassurances is dismissed.

~ue 2~ Whether

the Respondent

retaliated against the Complainant

in violation of 49 CFR § 26.109

as a resultof the Part 16 Complaint filed against

Respondent.

The Complainant

alleges the Respondent

hasexcluded

him from importantmeetings, isolated him from others,

and deniedhim the appropriate and normal supervision

that others in a comparable

position receive. The Complainant asserts in his Reply that he has

82 Respondent

perfonned a survey in 2003 willi a Mississippi minority contractorsassociation to determine what impact bonding, insurance, and other financial requirements have on DBEs receiving and completing jobs. Results emphasized the need for short tenn accounts receivable

and inventory financial assistance in orderto sustain

and grow DBE businesses. There was an initial consensus that j oint venture agreements would lessen

the strain on participating mjnority small businesses allowing them to gain much needed access to financial resources

and otheropportunities.

21"experienced total isolationand disparate treatment

i.e. being treated

and comrensated differently than otheremployees in similar positions within the organization." 3 In his Reply, the Complainant

claims thatthe Respondent's "bad faith behaviors

have damaged my character." In addition, the Complainant alleges thatthe Respondent

has a vendetta againsthim because

of his whistle blowing activities with the JMAA Board.84 The Complainant

asserts he often fmds out about DBE and department sponsored

activities from the newspaper

or from people

in the community.
Additionally, the Complainant asserts the Respondent

failed to respond

to his legitimate and legally recognized

recommendations

in reference

to the JMAA DBE Program.85 The

the sakeof marginalizinghis role in the organization. The Complainant asserts in his Reply that his "Trip Report" dated March 25,2008, from the FAA Southern Region's Civil Rights External Program Training so infuriated

the JMAA Board that the Board immediately

began the process

of advertising

for a DBE Liaison Officer .86

The Complainant

asserts in his Reply that DBE Director Mr. Thomas has shiftedthe "spotlight" from the message to the messenger

and, therefore,

has exemplifiedthe first rule of retaliation.

87 In addition,the Complainant states that he feels that he has been branded as incompetent.88

Moreover,

the Complainant

accuses the Respondent

of intimidation through abuse of powerand isolation. In his Reply, the Complainant views his performance

evaluations

as unjustified. The Complainant asserts he has never received a poor or negative

performance

evaluation

prior to his whistle blowing filing.89

The Respondent

contends the Complainant

has not supplied

evidence to demonstrate retaliation against

him as a resultof his Part 16 Complaint filing. In reference

to employee

isolation, the Respondent

asserts in its Answer thatthe Complainant is a regular participant in weekly staff meetings wherethe development

of the Capital Budget is freely discussed.9O

The Respondent

asserts it has definitive and affinnative actions to ensure there has beenno retaliationagainst he Complainant.91

In a September

24,2009, JMAA Board Meeting,the Board considered whether the Complainant

would claim his negative performance

evaluations

in his September

23,2009, Performance

Review, his Job Duties and Salary

Assessment,

andthe DBE ProgramReview had been in retaliation

83 FAA Exhibit I, Item]. Complainant makes this assertion

within the body of his Complaint. 84 FAA Exhibit l, Item 10, exhibit 21 (Summary). 85 FAA Exhibit 1, Item 10, exhibit 11; Complainant prepared a DBE Compliance Monitoring Manual. 86 The Complainant

makes this assertion

in his Reply as

proviso fo~ retaliation. The Respondent's memorandum

reply to the Complainant's Trip Report is found in the Rebuttal. [FAA Exhibit I, Item 13, exhibit 59.] 87 FAA Exhibit l, Item 10, exhibit 21(Summary). 88 FAA Exhibit l, Item 10, exhibit 1 7, page 4. 89 Id. The Complainant

appears adamant abouthis assertion

of retaliation. FAA Exhibit 1, Item 10, exhibit 4 is a performanceevaluation performed by Complainant's supervisor Ms. Wilson for the period August 1, 2007, to March 31, 2008,in which Ms. Wilson concludes the Complainant

has performed "adequately." The Complainant disagrees

and responds

that he believeshe has performed "far above adequately." 90 FAA Exhibit 1, Item 6, exhibit 3. 91 FAA Exhibit 1, Item 6, exhibit 21. I

22for his Complaint against the Respondent.92

The JMAA DBE Director and the JMAA CEO assured

the Board thatthe Complainant's performance

evaluation

accurately reflected the Complainant's

job performance

as Compliance

Analyst and that it was an honest assessment.

In addition,

the DBE Director and JMAA CEO asserted thatthe deficiencies

noted in the evaluations

were not cited in retaliationfor his prior Complaint.93

Moreover,

the Respondent

asserts that the Complainant

has the same position and basic

job responsibilities

that he had at the time he filed his first Complaint on September

29, 2008. In its Answer,the Respondent also asserts

the Complainant's compensation

has increased

during the period of his Complaint.94

appraisal evaluations

duringthe period of his Complaint are an accurate

measure of the Complainant's

job performance. In addition, the Respondent

argues thatthe Complainant'ssupervisor has not ignoredhis programmatic recommendations

and has "acknowledged

periodic statements

the Complainant

has madeabout

the JMAA DBE Programand how it could be improved.,,95 Furthermore,

the June 24, 2009, Reviewand Feedback

Evaluationof Complainant by DBE Director Jack

Thomas reveals "during this appraisal period you have brought several issues to my attention

which may have constituted

poor administrative

practices,

pursuant o the DBE Guidelines. I encourage you to continuethis practice.,,96 The Respondent

also asserts

it has not prevented

or attempted

to prevent

the Complainant

from making any complaint he has madeor that he may want to make in the future. Moreover, in its Answer,the Respondent deniesany attempt at intimidation, coercion,or discriminationagainst the Complainant.97

The Respondent

argues the Complainant's

negative performance

evaluations

are deserved and demonstrates

Respondent's

efforts to encourage

Complainant

to do a better job of ensuring

technical compliance

by JMM underParts

23 and26.

The Director notes

the Complainant

claimed in his Reply that he experienced disparate treatment

andwas compensated

differently from employees in similar positions within the organization.98

The analysis

of intentionaldiscriminationis equivalent to the analysis of disparate

treatment

under the Equal Protection

Clause of the Fourteenth

Amendment. [See US. Department of JusticeTitle VI Legal Manual, at 42 (January11,2001), citing: Elston v. Talladega

County Board ofEducation, 997 F.2d 1394,1405n. 11 (11th Cir.), reh'g denied, 7 F .3d 242 (11th Cir. 1993); Guardians Association

v. Civil Service Commission,

463 U.S. 582, 582 (1983); Alexanderv. Choate,

469 U.S. 287, 293 (1985); Georgia State Conference of Branches ofNAACP

v. Georgia,775 F .2d 1403, 1417, (11th

92 FAA Exhibit 1, Item 6, exhibit 14. 93 FAA Exhibit 1, Item 6, exhibit 16. 94 The Respondent

asserts the Complainanthas

received a salary increase during the period covered by his Complaint. Respondent has not provided documentation indicating a positive salary adjustment during feriod of complaint for the record. S FAA Exhibit 1, Item 6, exhibit 12. 96 FAA Exhibit 1, Item 6, exhibit 10. 97 In its Answer, the Respondent denies intimidation, coercion, and/ordiscrimination against the Complainant 98 Complamant

makes this assertion

within the body of his Complaint.



### 23Cir. 1985).] To prove intentionaldiscrimination, one must showthat "a challenged action was motivated by intent to discriminate." [Elston,997 F .2d at 1406.] It does not requireevidence

of "bad faith, ill will or any evil motive on the part of the [recipient]." [Elston, 997 F.2d at 1406 (quoting Williams v. City of Do than,745 F.2d 1406, 1414 (11th Cir. 1984).] Intentional discrimination claims may be analyzed

using the Title VII burden shifting analytic framework established

by the Supreme

Court in McDonnell Doug/asCorp. v. Green, 411 U.S. 792 at 802 (1973).

In applyingthe framework established in McDonnell Douglas,

the complainant

must first raisean inference

of discriminationby establishing a prima facie case

of discrimination.

facie case

of discrimination

based on the evidence

of record. The Complainant has not providedexamples

of other similarly situated employees

that receivea higher salary. In the matter

of compensation,

the Respondent

initiated a salaryand benefits surveyat the direction of the JMAA Board in response to the Complainant'sclaim of unfair compensation.99

The survey

concluded

the Complainant

receivescompensation

that is approximately

equalto his peers. The Director hasdetermined the surveywasenacted

in good faith and it provided substantial proof of fair compensation for the Complainant based on his current

job classification. The Complainant has not rebutted

this evidence nor has the Complainant

demonstrated

that such reasoning

is a pretext for discrimination. Accordingly, the Director finds thatthe Complainant has not met his burdenof proof, and the record doesnot containevidence to support

the Complainant'sallegationthatthe Respondent

discriminatedagainst

him. '

The Complainant

claims thatthe Respondent violated49 CFR § 26,l09(d) by retaliating against him for his filing of this Part 16 Complaint. The Director finds the Respondent's alleged actions,or lack of actions,individually or cumulatively, were not contraryto the administrative,

general, and compliance

requirements

of 49 CFR § 26.1

09( d). In order

to makea prima facie showing that a given action by the Respondent violated 49 CFR § 26.109( d), the Complainant

hasthe burden

of proof to show retaliatory aforethought by the Respondent.

To do this, the Complainant must showa causalconnection between the Respondent's

treatment

of him after filing his Complaint and treatment

beforefiling the Complaint. The Director notes the Complainant

states "I neverreceived

a poor or negative evaluation

prior to this whistle blowing experience."IOO The Director notes that the Complainant's

performance

evaluation

for the periodAugust 1, 2007,to March 31, 2008, was rated "performing adequately in areas that you have been

asked to manage

and oversee."IOI

The Complainant

clearly states

in his Reply that "the 'Complaint of record:' is not an employee

related issueof concern",IO2 The Complaintprovides no other evidence of retaliation by the Respondent. Without probative or substantial evidence,

the

99 FAA Exhibit 1, Item 6, exhibit 15. 100 FAA Exhibit 1, Item 6, exhibit 17. 101 FAA Exhibit 1, Item 10, exhibit 4. 102 FAA Exhibit I, Item 10, paragraph16 and unnumbered paragraph

on page35. The Complainantasserts in his Reply that his Complaint is not an employeerelated issue and thus is not the driving force behind his Complaint. However, retaliation is a form of discriminationprowoited under the grantassurances and, therefore,

is a claim that warrants investigation under the Part 16 process. Accordingly, the issue is analyzed herein.

24Complainant is unable to establish

a causal ink between

his treatment

as an employee

of JMAA and the filing of his Complaint. Further, the Director finds the Complainant's claim of retaliation by way of exclusionis not supported by reliable evidence. The Respondent's

evidence contained

in FAA Exhibit 1, Item 10, exhibit 3, clearly shows the Complainant

was included in meetings with the CFO, the Purchasing Agent,the technical staff concerning

software design. and Facilities/Finance. Complainant wasa member

ot~ the weekly seniorstaff meetings to develop

Operations

and Maintenance

plans andthe Capital Budget. Records of the Board of Commissioners meetings show Complainant attends regularly.lo3The substantial evidence shows the Respondent

did not discriminate against the Complainant

by excluding him from participating in airport meetings and 

### functions.

The Director fmds no violation by the Respondent of 49 CFR § 26.109(d), and this issue is dismissed.

.

In conclusion,

the Director finds the Respondent is in compliance

with the requirements in 49 CFR Parts23 and26, and FAA Grant Assurances

30, Civil Rights,

and 37, Disadvantaged

Business Enterprises.


### VII. FINDINGS AND CONCLUSION
Upon consideration

of the submissions

and responses

by the parties,the entire record herein,and the applicable law and policy, and for the reason stated above, the Director finds and concludes

as follows:

The Respondent

is not currently in violation of the requirements of 49 CFR Parts 23 and 26 as they relate

to grantassurances

1, General Federal Requirements; 30, Civil Rights;and 37, Disadvantaged Business Enterprises;by

establishing

race conscious

DBE goals on federally

funded projects

after October 1, 2008.



# . The Respondent did not retaliateagainst

the Complainant

in violation of 49 CFR § 26.109as a result of fue Part 16 Complaint filed againstRespondent.

vIll. ORDER
Accordingly, it is ordered that: 1) The Complaintis dismissed with prejudice;and 2) All motions not expressly grantedin this Determination are denied.

103 FAA Exhibit I, Items 17, 18, 19and 20.

25RIGHT OF APPEAL

-- The Director's Determination is an initial agency

determination

and does not constitute final agency

actionand order subject

tojudicial review (14 CFR § 16.247(b)(2). A party to this proceeding

adversely

affected by the Director's Determination may appeal

the initial determination

to the attention

of the FAA Assistant

Administrator for Civil Rights pursuant o 14 CFR § 16.33(b)

within thirty (30) days afterservice of the Director's Determination. Any appeal should be forwardedto the FAA Office of the Chief Counsel, Attn: FAA Part 16 Airport Proceedings Docket,AGC-610, Room925, Federal AviatioI1. Administration, 800 Independence Avenue, SW, Washington, DC 20591.

:\"' (J iI1U~ 1"6/ 2 cO1/ Date RandallS. Fiertz Director, Office of Airport Compliance and Field Operations

26