Labor & Employment Law Daily Wrap Up, DISCRIMINATION—8th Cir.: Acting manager, denied promotion by FAA, cannot revive discrimination, retaliation claims, (Jul 11, 2025)

By Jason Albright, J.D.

What made the selected candidate stand out, according to the court, was his “higher understanding of labor relations” and the fact that he “demonstrated competencies better than [she] during his interview.”

A 58-year-old Black woman, denied a promotion to a permanent Air Traffic Manager (ATM) position that the Federal Aviation Authority (FAA) awarded to a 54-year-old white man, cannot revive her race, sex, and age discrimination or retaliation claims against the agency, the Eighth Circuit concluded. There was no evidence that the selection process violated FAA policies, each of the candidates went through the same process with the same questions, subjectivity was reduced by a scoring rubric with model answers and a scoring range, and the two candidates, who had similar career experiences, were both qualified for the position. The agency also used a panel of interviewers with no prior knowledge of the plaintiff’s history of discrimination complaints (Pilot v. Duffy, No. 24-2203 (8th Cir. July 10, 2025)).

30-year FAA career. The plaintiff began working for the FAA in 1987. Over the next 30 years, she “worked her way up through the agency,” and by 2017, she was serving as a District Staff Advisor in Kansas City.

Acting ATM. In late 2018, she was named acting Air Traffic Manager (ATM) for the Kansas City Downtown Air Traffic Control Tower, known as MKC. MKC provides air traffic control services to nearby aircraft and is one of 12 such facilities in the so-called Kansas City District, which extends from southern Illinois to eastern Colorado. As acting ATM, she oversaw the facility, with the Assistant General Manager (assistant GM) as her immediate supervisor and the General Manager (GM) as her second-level supervisor.

Not permanent. Her appointment to the position was not permanent, however. It could last only through August 2020 unless extended, and in February of that year, the FAA posted a job announcement for the permanent ATM position, with the assistant GM as the selecting official and the GM providing assistance.

Selection panel. They picked three individuals from around the country to review applications, hoping to avoid panelists who “had any associations with the candidates.” After finding a suitable group, the assistant GM met with the panelists to discuss how they would complete their task. They were to follow a hiring process that had been used in the Kansas City District for almost a decade to fill the previous dozen or so permanent ATM vacancies.

Three-part hiring process. That process comprised three parts. First, the so-called Package Review: evaluating and scoring a candidate’s resume, knowledge, skills, and abilities on grammatical factors as well as substance.

Candidates with a sufficiently high-scoring Package Review would move on to a Candidate Interview by the panelists. Each interview would include the same six questions, all of which the assistant GM selected from an HR-approved list, and the interview panelists could ask follow-up questions for clarity only. The applicants would receive the questions 30 minutes beforehand, and each interview would last 45 minutes. Their answers were rated on a scale from “insufficient” to “expert,” with designated points for each rating and with model answers provided for comparison.

Finally, each candidate’s manager would answer six common questions as part of a Manager Assessment, with the panel rating those responses from “extremely negative” to “extremely positive.” The panel would then rank the applicants by score—assigning 10 percent to the Package Review, 60 percent to the Candidate Interview, and 30 percent to the Manager Assessment—before submitting its rankings to the assistant GM for the final decision.

A contender. As acting ATM, the plaintiff was an obvious contender for the permanent position. Along with 13 other applicants, she submitted her name for consideration. The selection panel reviewed the applications and decided to interview eight applicants, including her. None of the panelists knew the applicants, nor were they aware of the plaintiff’s age, race, or history of employment discrimination complaints. They assumed she was a woman, the court said, based on her voice and first name.

Ranked fourth. After completing Candidate Interviews and Manager Assessments, the panel rated and ranked the remaining candidates. It identified four as “Highly Recommended,” and she was ranked fourth. She had the highest Package Review score, but her Interview and Manager Recommendation brought down her ranking. The panel labeled her as “Highly Recommended” because a majority felt “it would be a benefit to have the acting [ATM] included” and she was only a few points below the third-ranked candidate. But the panel was unanimous that she was not among the three most qualified applicants.

Younger white man selected. The top-ranked candidate was a white man, 54 years old at the time, who, like the plaintiff, had worked for the FAA for almost three decades and had held several management level positions. What made him stand out was his “higher understanding of labor relations,” as well as the fact that he “demonstrated competencies better than [she] during his interview.”

And then quit. He started as ATM, and she helped train him and assist with his transition into the role. Six months later, however, he quit without completing his probationary employment period.

Lawsuit and decision below. She sued the Secretary, alleging that the GM discriminated against her based on her race, sex, and age by not selecting her as permanent ATM and that her non-selection was retaliation for her prior discrimination complaint. After proceeding through discovery, the Secretary moved for summary judgment, which the district court granted.

On appeal, the Eighth Circuit affirmed.

FAA policies. First, the appeals court found that there was no evidence that the selection process violated FAA policies. Though the plaintiff offered a declaration from a former employee—from a different district—who “never heard of a selecting official” using the system employed in her case, she presented no evidence of any policy prohibiting that practice.

Overly subjective criteria? Her argument that the hiring process relied on overly subjective criteria fared no better. Each of the candidates went through the same process with the same questions, the appeals court noted, and subjectivity was reduced by a scoring rubric with model answers and a scoring range.

Selected candidate not “clearly less qualified.” Finally, she asserted that the selected candidate was “clearly less qualified” than she. Here, the Eighth Circuit noted that, though hiring a “less qualified” applicant can show pretext, the hired applicant must be “substantially” so. Though she claimed that the younger white male candidate had substantially less experience, the record showed both he and she had comparable qualifications. Indeed, the two “had similar career experiences and were both qualified for the position,” as the Secretary had noted. “Whatever minor differences there might be, they are insufficient to show pretext,” the appeals court concluded.

Retaliation. The court also rejected the plaintiff’s theory that her supervisors developed a novel, overly subjective hiring process to prevent her from getting promoted, and that they did so “because” she is a 58-year-old black woman who filed a discrimination charge against them previously. Instead, even viewed in the light most favorable to the plaintiff, the record showed that the assistant GM and GM “employed a policy-compliant procedure used for almost a decade. They used a panel of interviewers with no connection to MKC and no prior knowledge of [the plaintiff’s] age, race, sex, or history of discrimination complaints. Each candidate was asked the same preapproved questions, and their answers were scored based on a standardized rubric. The four highest scorers were then forwarded to [the GM and assistant GM], who then selected the top-ranked candidate. Those facts do not show pretext.”

The case is No. 24-2203.

Judge: Shepherd, B.

Attorneys: Anne T. Sulton (Law Offices of Anne T. Sulton) for Jacqueline Pilot. Jeffrey P. Ray, U.S. Attorney's Office, for Sean Duffy.

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