UNITED STATES DEPARTMENT OF TRANSPORTAnON

FEDERAL A VIA nON ADMINISTRATION

WASHINGTON, DC

LARRY L. DAVIS

Complainant,

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v. Docket No. 16-10-01

JA CKSONMUNlCIPALAmPO ItT

AUTHORITY,

Respondent.

DIRECTOR'S DETERMINATION

I. INTRODUCTION

This matter is before the Federal Aviation Administration (FAA) based on the formal

Complaint filed in accordance with FAA Rules of Practice for Federally Assisted Airport

Enforcement Proceedings (FAA Rules of Practice), 14 Code of Federal Regulations

(CFR) Part 16.

Mr. Larry L. Davis, (Complainant) has filed a Complaint pursuant to 14 CFR Part 16

againsthe Jackson Municipal Airport Authority (JMAA or Respondent) alleging

Respondent is in violation of 49 CFR Part 26, 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 Complaint with 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 as the

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 currently a Compliance Analyst for JMAA. The

Complainant is presently responsible for collecting data, preparing reports, and

monitoring compliance with the provisions of the DBE (49 CFR Part 26) and ACDBE

(49 CFR Part 23) programs.

I FAA Exhibit 1, Item 1.

1
The Complainant alleges Respondent failed to adhere to rules, regulations, and grant

conditions, (written and implied) of signed financial agreements with the United States

Department of Transportation (DOT) and the Federal Aviation Administration under the

Airport Improvement Program (AIP).2 The Complainant claims the administrative body

of JMAA repeatedly ignored all verbal and written input from him while serving in the

role ofDBELo.3

In addition, the Complainant claims the Respondent's DBE program is not narrowly

tailored as it relates to goal setting on federal and state assisted projects and contracts.4

Specifically, the Complainant claims the Respondent arbitrarily establishes goals on

Moreover, the Complainant alleges that from October 1, 2008, through February 25,

2010, goals established on projects lack any substantial relationship to defmed

discriminatory remediation objectives.S The Complainant claims the Respondent set race

conscious goals on every project without regard to a coherent policy or any defmitive

goal setting methodology.6 The Complainant asserts that all project goals established on

federally funded projects and contracted out from October 1,2008, until February 25,

2010, including construction and professional service contracts, lack the due diligence

and requisite findings to meet narrow tailoring requirements for goal setting, goal

compliance, and defmitive DBE program administration. 7

The Complainant also alleges the Respondent has violated 49 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

result of his public assertions.8 In addition, the Complainant alleges he has experienced

retaliatory and adverse employment actions because of his public assertions made to

JMAA's administrative body and the 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 retaliation for bringing these issues

to the attention of the administrative body and Board of Commissioners of the JMAA.1o

Respondent denies it has failed to adhere to the rules, regulations, and grant conditions,

(written and implied) of signed financial agreements with the United States Department

of Transportation, and the Federal Aviation Administration, under the Airport

2 Id.

3 Id. The Complainant did not include any exhibits in his Complaint document; however, he included

several numbered and unnumbered "points." Point #1 asserts the Respondent ignored input from the

Complainant. 4 rd. 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. Page 5, Paragraph 5.

2
Improvement Program. The Respondent states in its Answer that the Complainant has

failed to prove any such violations of 49 CFR Parts 23 and 26 by a preponderance of

reliable, probative, and substantial evidence. II The Respondent counters that the

Complainant lacks standing in his claim that the Respondent arbitrarily established raceconscious goals under Parts 23 and 26.12 In addition, the Respondent argues that the

Complainant's claim of retaliation via poor performance evaluations is not supported by

the record. The Respondent counters that the Complainant's negative performance

evaluations are an accurate and honest assessment of the Complainant's job performance.

The Respondent adds that the evaluations serve as evidence of JMAA's determination to

upgrade its technical compliance in certification and contracting under Parts 23 and 26 -

areas for which the Complainant has been 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-hub city owned commercialservice airport 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 grant assurances. In each of the fiscal years from 2006 through

the present, JMAA received federal fmancial assistance under FAA'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 grant program authorized

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 as a

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 begin working on a

budget for aNew Disparity Study. 16 On June 16,2006, the JMAA Director of Legal

Compliance, resigned. The Respondent states in its Answer the JMAA Chief Executive

Officer (CEO) decided to not to fill the position and instead reassigned certain duties of

11 FAA 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.

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that position. [F AA Exhibit 1, Item 6, page 4.] The JMAA CEO created a new senior

level position devoted exclusively to managing the JMAA DBE Program.l? From June

2006 until November 2008, the Complainant served as the 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 additional software

and technical support in order to perform his duties in regard to the DBE Program.

Ms. Wilson determined the software enhancements proposed by the Complainant were

impractical and impossible to implement. The Respondent stated tliat Ms. Wilson said the

Complainant could acquire the necessary data from existing JMAA financial and project

management programs. Moreover, Ms. Wilson recommended the Complainant become

August 2, 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 reiterated her 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 upgrading and managing the JMAA DBE Program. The Strategic Plan

also included issuing a Request for Qualifications (RFQ) for a consultanto prepare the

New Disparity Study.21 Sixteen applicants applied for the DBE Director position. The

Respondent states in 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 August 28, 2008, the position of 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 entailed leading a team

to draft the RFQ for the New Disparity Study.24 The RFQ was published on January 23,

2009. Responses to the RFQ were received March 27,2009.

On September 29, 2008, the Complainant submitted the first of a series of complaints

directly to the JMAA Board alleging violations 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 gross neglect 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.

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

Complainant had performed the duties of that position in regard to the JMAA DBE

Program. Therefore, the Complainant stated he believed he was entitled to extra

compensation because those duties exceeded his job description as Compliance Analyst.

On November 1,2008, Mr. Thomas began his employment with the JMAA as the DBE

Director and 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 Complaint at this meeting. 7 However, on December 17, 2008, the JMAA Board adopted

a resolution stating "the Board finds and determines that no material violations of 49 CFR

3729 et seq., commonly known as the federal False Claims Act, have been committed by

JMAA, Vanderleest or Wilson, as alleged in 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

violations of Part 26. In addition, the second resolution instructed the DBE Director to

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 salary to the salaries of employees of airports with similar duties and

responsibilities and to make any recommendations.29 Aletter dated January 14,2009,

from the JMAA Board was forwarded to the Complainant advising him of the

resolutions, as well as informing him that he would be under no special scrutiny because

of his Complaint and that he would not be retaliated against. Areminder was 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. Thomas received a Certificate of Appreciation at 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 improvement in ten of eleven

Competency/Performance Standards that were 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 There are 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.

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mirrored the observations made by 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 bought to the attention of the Board.34 In June 2009, Mr.

Thomas was named Robinson Watson Book Company Minority Business Enterprise

(MBE) Advocate of the Year.35 On 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 have confidence in the Complainant's ability to

carry out the duties of the JMAA DBE Program.37 Mr. Thomas recommended hiring an

outside consultant 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 certification training; and assisting in the development and

implementation of a certification process. The Board unanimously concurred with the

findings of the DBE Program Review and 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 alleges in his Reply that he was totally unaware of the DBE Program

Review and 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 Salary and Benefits of the Complainant that was

requested by the Board in January 2009.40 This analysis concluded the Complainant's

compensation was comparable to others with the same job classification and that his

compensation should remain unchanged.41 The analysis also determined additional

compensation for work performed beyond his job classification was not justified.

33 August 7, 2007, Memorandum from Bonnie Wilson, JMAA COO, to Dirk Vanderleest, JMAA CEO and

Rene Woodward. 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, page 27.

38 FAA Exhibit 1, Item 6, exhibit 14.

39 fu Complainant's Reply, he states he did not review and was even aware of the existence of the DBE

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

41 Id.

6
On 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 June and September 2009 to be void of measurable, obtainable,

supportive documentation, and constructiveness.44

On or about November 6. 2009, the Complainant filed a Complaint with the Federal

Aviation Administration (FAA).45 The Respondent claims it never received a formal

notice of the filing or a copy of the Complaint from the Complainant or the FAA. The

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

Respondent's legal counsel and the 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 treat the Complainant as any other employee and not to participate in any retaliatory

actions against him as a result of 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 seriously by 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 Rights and assuring Complainanthe Respondent intended to cooperate fully with

any investigation.48 The Complainant was also assured that the staff of JMAA had been

instructed not to retaliate against him because of his Complaint.

The Respondent alleges in its Answer that 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

alleged JMAA 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 explain the JMAA DBE Program's shortcomings in ten

minutes. The Complainant also stated that if the Board agreed with his

42 The Respondent has not 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 date of 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.

7
recommendations, 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 cost of$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 disparity analysis, 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 and design standards for JMAA DBE programs.

with the Respondent asking for a copy of the methodology and goal setting worksheets

used to establish JMAA DBE goals on all projects advertised 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 market area

applied to each goal; and information provided separately for each goal advertised. 53 The

Complainant alleges the Respondent has completely ignored his recommendations for

policy adjustment and changes, which has resulted in race conscious goals being set on

all projects. The Complainant adds that race conscious goals were set on every project

contracted out without regard to a coherent policy or defritive goal setting

methodology .54 The Respondent hand delivered 615 pages of public record documents to

the Complainant on June 9, 2010.55 The Complainant states the only goal setting

worksheets he received were the goals he, himself, had prepared for fiscal years 2008

through 2010.

The Respondent has submitted DBE 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 under Part 26 for the applicable fiscal years (FY) 2006-2010 covered by this Complaint. 56 The Complainant served as JMAA DBELO from June 16, 2006, until

November 1, 2008, and was 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 Report and that Ms. Wilson and Mr. Thomas

(who was not yet officially on board) worked together preparing the FY2009 DBE

so FAA Exhibit 1, Item 6, exhibit 24, page 3.

51 In its Answer, the Respondent provides an 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 reports for FY

2006 through FY 2010. In its Answer, the Respondent states it has received no 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 states in his Reply that he was

involved in setting goals prior to the arrival ofDBE Director Mr. Thomas.

8
Annual Report.58 The Complainant alleges in his Reply that it was Ms. Wilson who

asked him to "hold off' on completing the 2009 Annual 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 annual goals and matching

actual DBE participation. The Respondent states in its Answer that it intentionally set its

DBE annual goals late in its fiscal year to capture as complete as possible project

progress and payments for that year. The Respondent asserts that it typically has a small

number of projects that are subject to Part 26. Additionally, the Respondent asserts in its

Answer that fluctuations in DBE participation in a single project can cause DBE results

I . ts 61 payments are mu ti~year paymen .

The Respondent asserts in its Answer that it has not received any complaints from any

non-DBE entities from June 2006 to the present claiming discrimination, nor has it

received any communication from the FAA in reference to violation of Part 26 in the

DBE Annual Reports submitted for 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 obtain overall concession goals. The Complainant prepared

and fIled the JMAA Tri-Annual Concession Goal Reports for fiscal years 2007-2009 and

2010- 2012.63 Under the period covered by this Complaint, the Respondent has not

initiated concession projects subject to Part 23. The Respondent has not received any

communication from the FAA to indicate any violation of Part 23 in the Tri-Annual

Concession Goal Reports for fiscal years 2007-2009 and 2010-2012.64

As of the date of this Complaint, the Complainant is still employed by JMAA in the same

position as Compliance Analyst and has received increased pay.65

B. PROCEDURAL mSTORY

On February 26, 2010, the Complainant filed its Part 16 Complaint with no exhibits.

[FAA Exhibit 1, Item 1.]

S8 In its Answer, the Respondent alleges that the 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; emails between Complainant Larry L. Davis and DBE Director Jack

Thomas. 6] Although Respondent's methodology is not challenged by the Complainant, the methodology was

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.

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

On April 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 Branch sent 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 does not object to 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 Branch sent a letter granting Complainant's

request for extension of time to file it reply. Reply due June 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 June 30. 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 granting the Respondent's

Request for Extension of Time for Rebuttal. Rebuttal due July 20, 2010 [FAA Exhibit 1,

Item 12.]

On July 20, 2010, the Respondent filed a Rebuttal to Complainant's Reply. [FAA

Exhibit 1, Item 13.]

IV. ISSUES

Upon review of the allegations and the relevant airport-specific circumstances,

s1.1mmarized above in the Background Section, the FAA Director of the Office of Airport

Compliance and Field Operations, has determined that the following issues require

analysis to provide for a complete review of the Respondent's compliance with

applicable federal law and policy.

10
Issue 1: Whether the Respondent is presently in violation of its FAA Grant

Assurances issued under the Airport Improvement Program (codified at 49 V.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 grant assurances, by

establishing race conscious DBE goals on federally funded projects after

October 1,2008.

Issue 2: Whether the Respondent retaliated againsthe Complainant in violation

Respondent.

V. APPLICABLE FEDERAL LAW AND POLICY

The federal role in civil aviation has been augmented by various legislative actions that

authorize programs for providing federal funds and other assistance to local communities for

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

certain obligations, either by grant agreement or by restrictive covenant'5 in property deeds and

conveyance instruments, to maintain and operate its airport facilities safely and efficiently and

in accordance with specified conditions. Commitment'5 assumed by airport sponsors in

property conveyance or grant agreements are important factors in maintaining a 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., provides for federal airport financial 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

federal financial assistance. Upon acceptance of an AlP grant, the assurances become a

binding obligation between the airport sponsor and the federal government. The assurances

made by airport sponsors in AlP grant agreements are important factors in maintaining a

viable national airport system.

Part 16 of Title 14 of the Code of Federal Regulations (14 CFR Part 16) contains the rules of

practice for filing complaints involving federally assisted airports. [See FAA Rules of Practice

for Federally Assisted Airport Enforcement Proceedings, 61 Fed. Reg. 53998 (October 16,

1996).] Complaints may be filed under Part 16 alleging violations of the federal grant

assurances under 49 U.S.C. § 47107 or § 47113 for airports receiving federal airport

improvement program funds.

1 1
The standard federal grant assurances contain a civil rights assurance66 and a Disadvantaged

Business Enterprise (DBE) assurance,67 as well as the express requiremento comply with 49

CFR Parts 26 and 23 under Grant Assurance 1, General Federal Requirements.

Title 49 U.S.C. § 47113 provides authority for 49 CFR Part 26 and requires that "The

Secretary of Transportation shall take affIrmative action to ensure that an individual is not

excluded because of race, creed, color, national origin, or sex from participating in an activity

carried out with money received under a grant under this subchapter. The Secretary shall

prescribe regulations necessary to carry out this section."

with respecto Department of Transportation-assisted contracts. [See Participation by

Disadvantaged Business Enterprises in the Department of Transportation Financial

Assistance Programs, 64 Fed. Reg. 5096 (February 2, 1999).] Part 26 applies to 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 does not

participate in 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

provisions of 49 CFR Part 23 were revised and updated in the Department's regulation entitledl

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 § 26.7 states:

(a) You must never exclude any person from participation in, deny any person the

benefits of, or otherwise discriminate against anyone in connection with the award

and performance of any contract covered by this part on the basis of race, color,

sex, or national origin.

(b) In administering your DBE program, you must not, directly or through contractual

or other arrangements, use criteria or methods of administration that have the effect.

of defeating or substantially impairing accomplishment of the objectives of the

program with respecto 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 have the effect of 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 Grant Assurance 37, Disadvantaged Business Enterprises.

12
contexts. [See Supplemental Notice of Rulemaking 62 FR 29548,29551 (May 30,1997)

citing Alexander v. Choate, 469 u.S. 287 (1985); Elston v. Talladega Board of Education, 99~7

F.2d 1394 (11 th Cir., 1993).] Therefore, to analyze the allegations in this case, we will

consider two primary theories of discrimination under Title VI: intentional discrimination or

disparate treatment, and disparate impact or adverse effects.

The regulation in § 26.45 states in pertinent part,

(a)(l) Except as provided in paragraph (a)(2) of this section, you must set an overall

goal for DBE participation in your DOT -assisted contracts.

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

may take 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 basis from which you begin when examining all

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 approval by the concerned operating administration.

(5) Alternative methods. You may use other 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 attain a 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 consider its DBE status in making the award (e.g., a prime

contractor that uses a strict low bid system to award subcontrac~).

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

To ensure that your DBE program continues to be narrowly tailored to overcome the

effects of discrimination, you must adjust your use of contract goals as follows:

(1) If your approved projection under paragraph (c) of this section estimates that you

can meet your entire overall goal for a given year through race-neutral means, you

must implement your program without setting contract goals during that year.

13
(2) If, during the course of any year in which you are using contract goals, you

deternline that you will exceed your overall goal, you must reduce or eliminate the use

of contract goals to the extent necessary to ensure that the use of contract goals does

not result in exceeding the overall goal. If you deternline that you will fall short of

your overall goal, then you must make appropriate modifications in your use of raceneutral and/or race-conscious measures to allow you to meet the overall goal.

The regulations in 49 CFR § § 26.101 and 26.105 cover FAA's enforcement authoritie~,

in the event FAA finds the recipient in noncompliance.

The regulation in § 26.101(a) states:

formal enforcement actions under § 26.103 or § 26.105 or appropriate program

sanctions by the concerned operating administration, such as the suspension or

termination of federal funds, or refusal to 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 regulatory provision in § 26.105 specifically provides for enforcement actions in FAA

programs, as follows:

(a) Compliance with all requirements of this part by airport sponsors and other

recipients of FAA financial assistance is enforced through the procedures of Title 49 oJr

the United States Code, including 49 V.S.C. 47l06(d), 47111(d), and 47122, and

regulations implementing them.

(b) The provisions of § 26.1 03(b) and this section apply to enforcement actions in

FAA programs.

(c) Any person who knows of a violation of this part by a recipient of 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) regarding retaliation provide:

(d) If you are a recipient, contractor, or any other participant in 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 participated in any

manner in an investigation, proceeding, or hearing under this part. If you violate this

prohibition, you are in noncompliance with this part.

B. Airport Sponsor Assurances

14
As a condition precedento 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 has a 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, provides the policies and procedures to be followed by the FAA in

carrying out its legislatively mandated functions related to 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, General Federal Requirements; 30, Civil Rights; and 37,

Disadvantaged Business Enterprises, apply to 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 relate to the

application, acceptance and use of federal funds for this project including but not

limited to the following:

Federal Legislation (in pertinent part):

k. 49 CFR Part 23 -Participation by Disadvantage Business Enterprise in 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, national origin, sex, age, or

handicap be excluded from participating in any activity conducted with or benefiting

from fWlds received from this grant. This assurance obligates the sponsor for the

period during which federal financial assistance is extended to the program, except

where federal fmancial 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 any transferee for the longer of the following

periods: (a) the period during which the property is used for a purpose for 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 the property.

15
Grant 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 order to protect the

public's interest in civil aviation and to ensure compliance with federal laws. The FAA

Airport Compliance Program is designed to ensure the availability of a national system of safe:

and properly maintained public-use airports operated in a manner consistent with the airport

owners' federal obligations and the public's investment in civil aviation.

The Airport Compliance Program does not control or direct the operation of airports. Rather,

it monitors the administration of the valuable rights pledged by airport sponsors to the people

of the United States in exchange for monetary grants and donations of federal property to

ensure that the public interest is being served. FAA Order 5190.6B, 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 personnel in carrying;

out the FAA's responsibilities for ensuring airport compliance. It provides basic guidance for

FAA personnel in interpreting and administering the various continuing commitments made to

the United States by airport owners as a condition of receiving a grant of federal funds or the

conveyance of federal property for airport purposes. The Order analyzes the various

obligations set forth in the standard airport sponsor assurances, addresses the nature of those

assurances, addresses the application of those assurances in the operation of public-use

airports, and facilitates interpretation of the assurances by FAA personnel.

The FAA Compliance Program is designed to achieve voluntary compliance with federal

obligations accepted by owners and/or operators of public-use airports developed with F AAadministered assistance. Therefore, in addressing allegations of noncompliance, the FAA will

16
make a determination as to 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 potential past violation 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 Docket No. 16-99-10, (8/30/01); upheld in Wilson Air Center,

LLCv. FAA, 372 F.3d 807 (C.A. 6, June 23, 2004).]

The Order covers 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 Administration Office of Chief Counsel.

On February 22, 2002, the Director of the Office of Airport Safety and Standards (now the

Director of Airport Compliance and Field Operations) delegated to the Deputy Assistant

Administrator for Civil Rights the authority to 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. 16-01-01 Final Agency Decision and Order, at footnote 3; upheld in

Albuquerque Valet Parking 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 maker for 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 presently in violation of its FAA Grant

Assurances issued under 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 grant assurances, by

establishing race conscious DBE goals on federally funded projects after

October 1,2008.

Issue 2: Whether the Respondent retaliated againsthe Complainant in violation

of 49 CFR § 26.109 as a result of the Part 16 Complaint filed against Respondent.

The FAA has determined that the Complainant does have standing to file a complaint

under Part 14 CFR Part 16, contrary to 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 Compliance and Field Operations in the absence of a Deputy Assistant

Administrator for Civil Rights will serve as the decision maker for the issuance of the initial decision for

this instant case.

17
complainant 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 Part 26 -which covers

participation by DBEs in DOTs financially assisted programs -may file a Part 16

complaint. The Complainant is therefore entitled to [lie the Complaint in accordance

with 49 CFR § 26.105(c) and does not have to be directly and substantially affected by

any alleged noncompliance by the recipient.

In accepting federal airport development funds, an airport owner assumes certain

obligations, memorialized in the grant assurances, which include the responsibility to

comply with 49 CFR Parts 23 and 26 as incorporated in Grant Assurances I, General

The Respondent has signed grant agreements containing the applicable assurances and is,

therefore, subject to its grant assurance 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 terminating eligibility for grants pursuanto 49 U.S.C. §§ 47106(e)

and 47111 (d), suspending the payment of grant funds, withholding approval of any new

application to impose a passenger facility charge, a cease and desist order, directing the

refund of fees unlawfully collected, or any other compliance order to carry out the

provisions as defined in 14 CFR § 16.3.

The Respondent is correct in noting that the FAA is without authority to award money

damages to the Complainant for the claims he seeks herein. The FAA has enforcement

authority over an airport sponsor, but, generally, has no authority to award damages to

persons subjected to an airport sponsor's noncompliance with its grant assurances. [See,

e.g., Martyn v. Port of Anacortes, FAA Docket No. 16-02-03 (Director's Determination,

2003).] While the Complainant has requested an award of 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 under 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 grant assurances, by

establishing race conscious DBE goals on federally funded projects after

October 1, 2008.

The Complainant alleges Jackson Municipal Airport Authority (JMAA) failed to adhere

to the rules, regulations, grant conditions, written and implied grant assurances of signed

18
fmancial agreements with the United States Department of Transportation (DO1) under

the Airport Improvement Program (AIP). The Complainant asserts the JMAA DBE

program is not narrowly tailored as it relates to goal setting on federal and state assisted

projects and contracts from October 1,2008, through February 25,2010.69 The elements

of a narrowly tailored program derive from 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

federal and state assisted projects by JMAA lacked the requisite findings to justify the

percent of DBE participation. Furthermore, the Complainant reported the Respondent set

setting methodology. The Complainant asserts that he compiled all goals and goal

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

However, the Complainant contends that many of the goals included in the annual reports

were not the ~oals published to the general public and in most cases the goals advertised

were higher. The Complainant claims that the indiscriminate setting of goals on all

federal and state projects/contracts by ignoring goal achievement data is 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 that this practice removes the option of measuring race

neutral accomplishment. Thus, all projects become race conscious.7] The Complainant

also contends the Respondent carelessly established race conscious goals on all projects

indiscriminately, which in turn imposed a non-level playing field and an undue burden on

non-DBE firms. 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 provisions within section 26.7(b), 26.45(5)ii, or

26.45(£)(4). Section 26.51(a)(2) does not exist, nor are there sanctioning provisions

within section 26.51).72

The Respondent disputes the allegations, arguing that the Complainant's allegations have

not been proven by any reliable, probative, and substantial evidence as is required in 14

CFR § 16.227. The Respondent retorts that the Complainant did not cite in his

Complaint any specific DBE goal in any federally funded project from October 1,2008,

to the present that he claims to be "race conscious" and therefore in violation of Part 26.73

The Respondent readily admits that establishing and implementing DBE goals is not a

precise science. On June 9, 2010, the Respondent provided documentation of its goal

setting methodology to the Complainant. 7 The Respondent contends that its goal setting

methodology is broad based and inclusive. In an April 20, 2010, memorandum to the

Complainant, DBE Director Mr. Thomas directs the CompImnanto "identify currently

certified Mississippi Unified Certification Program MS UCP DBEs and include them in

69 The Complainant makes this assertion in 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 makes this 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.

19
your methodology.,,75 The Respondent adds the Complainant should be more "detailed

and purposeful" in seeking DBE 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 used to establish DBE goals.

The Respondent concludes that it has provided evidence to justify the methodologies

used to establish DBE project goals after October 1,2008, and that the record does not

support a finding of noncompliance with FAA Federal Grant Assurances.

The record of evidence shows the Respondent is in compliance with FAA Federal Grant

Assurances 3O, Civil Rights; and 37, Disadvantaged Business Enterprises; and is in

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

In the instant case, the Director finds that the Respondent set DBE goals according to 49

CFR § 26.45, which outlines the goal setting process for recipients; and 49 CFR § 26.51,

which addresses race-neutral means to meet overall goals.?? Specifically, the Respondent

set a goal of 16.96 percent 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 application of the

process of the steps contained in the regulations and specifically analyzes the race-neutral

means used to 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 able to participate, an airport may use any methodology to achieve that

goal: The Respondent carried out its responsibility by not discriminating against

persons on the grounds of race, color, sex or national origin, nor by exclusion from

participation in any airport activity benefiting from federal funding by following the

requirements in 49 CFR Part 26. 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 national origin in the award and performance of any

federally assisted contract or in the administration of its DBE Program or the

requirements of 49 CFR Part 26. The Director finds that the Respondent practiced good

faith efforts and exercised due diligence through a self-assessment80 that identified

functional areas in 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 actual goals 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 submittal to the FAA for FY 2006-

FY 2008. Goal setting methodologies are included.

80 Respondent used a DBE Program Review.

81 FAA Exhibit 1, Item 6, exhibit 13.

20
themselves, do not translate into noncompliance with Part 26. Furthermore, the

Respondent has demonstrated a commitment to upgrade its DBE Program.

Contrary to the Complainant's assertion that the Respondent has failed to adhere to the

rules, regulations, grant conditions, written and implied grant assurances of signed

financial agreements with the Department of Transportation and the FAA, the Director

finds that the Respondent carried out its responsibility by providing opportunities for

DBE participation without discrimination. [See Northern Contracting Inc. v. illinois

Department of Transportation, 473 F 3d 715 (7th Cir. 2007). The record makes it clear

the Respondent uses nearly all of the methods described in 49 CFR § 26.51(b) to

Among other methods, JMAA has sponsored community outreach 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 through raceneutral means. The Complainant has not identified any specific DBE goal in any

federally funded project from October 1, 2008, to the present that he asserts to be "race

conscious" and thus in violation of 49 CFR Part 26. This failure, in addition to the failure

to demonstrate the Respondent did not maximize the portion of its goal that would be met

through race neutral means, reflects the Complainant's broader inability to demonstrate

thatJMAA's DBE program is in violation of FAA Grant Assurances issued under 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 grant assurances, by establishing race conscious DBE goals on

federally funded projects after October 1,2008.

The FAA is encouraged by the actions taken by the Respondent to review and upgrade its

DBE Program. The FAA is convinced that the Respondent has satisfied its burden of

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

assertion that the Respondent has violated FAA grant assurances is dismissed.

~ue 2~ Whether the Respondent retaliated against the Complainant in violation

of 49 CFR § 26.109 as a result of the Part 16 Complaint filed against Respondent.

The Complainant alleges the Respondent has excluded him from important meetings,

isolated him from others, and denied him 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 contractors association 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 order to 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 other opportunities.

21
"experienced total isolation and disparate treatment i.e. being treated and comrensated

differently than other employees in similar positions within the organization." 3 In his

Reply, the Complainant claims that the Respondent's "bad faith behaviors have damaged

my character." In addition, the Complainant alleges that the Respondent has a vendetta

against him 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 sake of marginalizing his 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 shifted the

"spotlight" from the message to the messenger and, therefore, has exemplified the 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 power and 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 result of his Part 16 Complaint filing. In reference to

employee isolation, the Respondent asserts in its Answer that the Complainant is a

regular participant in weekly staff meetings where the development of the Capital Budget

is freely discussed.9O The Respondent asserts it has definitive and affinnative actions to

ensure there has been no retaliation againsthe 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, and the DBE Program Review 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 about his assertion of retaliation. FAA Exhibit 1, Item 10,

exhibit 4 is a performance evaluation 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 believes he has performed "far above

adequately." 90 FAA Exhibit 1, Item 6, exhibit 3.

91 FAA Exhibit 1, Item 6, exhibit 21. I

22
for his Complaint against the Respondent.92 The JMAA DBE Director and the JMAA

CEO assured the Board that the 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 that the

deficiencies noted in the evaluations were not cited in retaliation for 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 during the period of his Complaint are an accurate measure of the

Complainant's job performance. In addition, the Respondent argues that the

Complainant's supervisor has not ignored his programmatic recommendations and has

"acknowledged periodic statements the Complainant has made about the JMAA DBE

Program and how it could be improved.,,95 Furthermore, the June 24, 2009, Review and

Feedback Evaluation of 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, pursuanto the DBE Guidelines. I encourage

you to continue this practice.,,96 The Respondent also asserts it has not prevented or

attempted to prevent the Complainant from making any complaint he has made or that he

may want to make in the future. Moreover, in its Answer, the Respondent denies any

attempt at intimidation, coercion, or discrimination against 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 under Parts 23 and 26.

The Director notes the Complainant claimed in his Reply that he experienced disparate

treatment and was compensated differently from employees in similar positions within

the organization.98 The analysis of intentional discrimination is equivalent to the analysis

of disparate treatment under the Equal Protection Clause of the Fourteenth Amendment.

[See US. Department of Justice Title VI Legal Manual, at 42 (January 11,2001), citing:

Elston v. Talladega County Board of Education, 997 F.2d 1394,1405 n. 11 (11th Cir.),

reh'g denied, 7 F .3d 242 (11 th Cir. 1993); Guardians Association v. Civil Service

Commission, 463 U.S. 582, 582 (1983); Alexander v. Choate, 469 U.S. 287, 293 (1985);

Georgia State Conference of Branches of NAACP 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 Complainant has 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/or discrimination against the

Complainant 98 Complamant makes this assertion within the body of his Complaint.

23
Cir. 1985).] To prove intentional discrimination, one must show that "a challenged

action was motivated by intent to discriminate." [Elston, 997 F .2d at 1406.] It does not

require evidence 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/as Corp. v. Green, 411 U.S. 792 at 802 (1973).

In applying the framework established in McDonnell Douglas, the complainant must first

raise an inference of discrimination by establishing a prima facie case of discrimination.

facie case of discrimination based on the evidence of record. The Complainant has not

provided examples of other similarly situated employees that receive a higher salary. In

the matter of compensation, the Respondent initiated a salary and benefits survey at the

direction of the JMAA Board in response to the Complainant's claim of unfair

compensation.99 The survey concluded the Complainant receives compensation that is

approximately equal to his peers. The Director has determined the survey was enacted 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 that the Complainant has not met his burden of proof, and

the record does not contain evidence to support the Complainant's allegation that the Respondent discriminated against him. '

The Complainant claims that the Respondent violated 49 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 contrary to the

administrative, general, and compliance requirements of 49 CFR § 26.1 09( d). In order to

make a prima facie showing that a given action by the Respondent violated 49 CFR §

26.109( d), the Complainant has the burden of proof to show retaliatory aforethought by

the Respondent. To do this, the Complainant must show a causal connection between the

Respondent's treatment of him after filing his Complaint and treatment before filing the

Complaint. The Director notes the Complainant states "I never received a poor or

negative evaluation prior to this whistle blowing experience."IOO The Director notes that

the Complainant's performance evaluation for the period August 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 issue of concern",IO2 The Complaint provides 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, paragraph 16 and unnumbered paragraph on page 35. The Complainant asserts

in his Reply that his Complaint is not an employee related issue and thus is not the driving force behind his

Complaint. However, retaliation is a form of discrimination prowoited under the grant assurances and,

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

analyzed herein.

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Complainant is unable to establish a causalink 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 exclusion is 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 was a member ot~

the weekly senior staff meetings to develop Operations and Maintenance plans and the

Capital Budget. Records of the Board of Commissioners meetings show Complainant

attends regularly.lo3 The 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 Parts 23 and 26, 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 grant assurances 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 retaliate against the Complainant in violation of 49 CFR

§ 26.109 as a result of fue Part 16 Complaint filed against Respondent.

vIll. ORDER

Accordingly, it is ordered that:

1) The Complaint is dismissed with prejudice; and

2) All motions not expressly granted in this Determination are denied.

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

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RIGHT -- OF APPEAL

The Director's Determination is an initial agency determination and does not constitute

final agency action and order subject to judicial 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

pursuanto 14 CFR § 16.33(b) within thirty (30) days after service of the Director's

Determination. Any appeal should be forwarded to the FAA Office of the Chief Counsel,

Attn: FAA Part 16 Airport Proceedings Docket, AGC-610, Room 925, Federal AviatioI1.

Administration, 800 Independence Avenue, SW, Washington, DC 20591.

:\"' (J iI1U~ 1"6/ 2 cO 1/

Randall S. Fiertz Date

Director, Office of Airport Compliance

and Field Operations

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