Lexis Cite:
2008 FAA LEXIS 388
Westlaw Cite:
2008 WL 5955352
Author:
Fiertz, Randall S., Director
Complainant(s):
Sun's, Inc.
Respondent(s):
Port of Seattle (Wash.)
Airport(s):
Seattle-Tacoma International Airport (SEA)
Holding:
Dismissing complaint.
Abstract:
Complainant, Sun’s, Inc., operated two Chinese restaurants in Concourses A and B of the Seattle-Tacoma International Airport. Complainant alleged that Respondent, the Port of Seattle, entered into direct leasing agreements with the vendors in the Airport’s Central Terminal, and the method for selecting those vendors had a discriminatory effect on Airport Concessions Disadvantaged Business Enterprises (ACDBEs) by relegating those businesses to the less-trafficked outer concourses. As such, it alleged that Respondent failed to carry out the objectives of the ACDBE program under 49 C.F.R. § 23.1 and that it did not adhere to the prohibition against engaging in acts of discrimination under 49 C.F.R. § 26.7.|Motion to Dismiss:|After Respondent filed its Answer to and Motion to Dismiss Complaint, Complainant filed a motion for voluntary dismissal of the case without prejudice, arguing that its case was filed at a premature stage. The Director rejected that motion, finding that Complainant had ample opportunity to amend its complaint and provide the information necessary to substantiate its allegations. The Director then considered the merits of the Complaint and dismissed all allegations.|49 C.F.R. Part 23, Part 26; Grant Assurance 37:|Respondent asserted as an affirmative defense that the Complaint had failed to identify any individual entitled to protection under 49 C.F.R. § 26.7 who had been subject to discrimination by the Airport. The Complaint stated only that “[Respondent’s] contracting and business practices in securing vendors have had a discriminatory effect on existing ACDBE vendors located in the outer concourses.” (p. 13). Respondent argued that Section 26.7 “does not prohibit discrimination against ACDBEs as a group, but instead prohibits discrimination against an individual based on sex, race, color, or national origin.” (p. 13). The Director denied the Respondent’s Motion to Dismiss on this ground, stating that discrimination against the Asian-American owner of Complainant was adequately alleged “by mere fact that he was the majority owner, and later, the sole owner of [Complainant] during the time of the alleged discrimination.” (p. 14).|The Director considered three sub-issues to determine whether the fact that Complainant was not selected for a tenancy in the Central Terminal constituted discrimination: (1) whether Respondent’s seemingly neutral procedures had a disparate impact on ACBDEs, (2) whether the Respondent intentionally discriminated against Complainant, and (3) whether Respondent complied with the ACDBE program regulations, FAA’s other non-discrimination regulations, and Grant Assurance 37.|Complainant failed to make a prima facie showing of disparate impact. Complainant provided only its own racial data and made no showing regarding other vendors in the Central Terminal and outer concourses. (p. 16). Even if the Complainant had established a prima facie case of disparate impact, Respondent had “provided a substantial legitimate justification for its leasing policies” and there was no evidence in the record that “there was a comparably effective practice that would have met the Port’s objectives efficiently and would have less discriminatory effect on Asian American food and beverage concessionaires.” (p. 17).|Respondent was found not to have intentionally discriminated against Complainant because of race when Complainant was not selected as concessionaire. The Director found that Respondent had “articulated a nondiscriminatory explanation for the alleged discriminatory action” and that nothing in the record indicated that the explanation was merely a pretext for discrimination. (pp. 19-20).|Because Respondent used race neutral measures to advertise opportunities for the terminals, had met its overall ACDBE goals, responded to concerns of ACDBEs in Terminal A, and provided rent relief to those owners, the Director found no violation of 49 C.F.R. Parts 23 and 26, or Grant Assurance 37.
Index Terms:
49 C.F.R. part 23|49 C.F.R. part 26|Affirmative defenses|Bids|Concession agreement|Disadvantaged Business Enterprises (Grant Assurance 37)|Disparate impact|Disparate treatment|Motion to Dismiss|Race discrimination|Request for Proposal (RFP)