No. _______
In the
Supreme Court of the United States
Ë
WILLIAM E. SHEA,
v.
Petitioner,
JOHN F. KERRY, Secretary of State,
in his official capacity,
Respondent.
Ë
On Petition for Writ of Certiorari
to the United States Court of Appeals
for the District of Columbia Circuit
Ë
PETITION
FOR WRIT OF
CERTIORARI
Ë
MERIEM L. HUBBARD
RALPH W. KASARDA
JOSHUA P. THOMPSON*
WENCONG FA
*Counsel of Record
Pacific Legal Foundation
930 G Street
Sacramento, California 95814
Telephone: (916) 419-7111
Facsimile: (916) 419-7747
E-mail: jthompson@pacificlegal.org
Counsel for Petitioner
i
QUESTIONS PRESENTED
Under United Steelworkers of Am., AFL-CIO-CLC
v. Weber, 443 U.S. 193 (1979), an employer may only
use racial preferences to “remedy a manifest imbalance
in a traditionally segregated job category.” In this case,
the State Department adopted a race-based
Affirmative Action Plan that allowed only racial
minorities to bypass the entry-levels in the Foreign
Service and apply directly for mid-level grades, even
though there is no evidence of a racial imbalance at
that level. The only evidence the Department
assembled showed a racial imbalance in the Senior
Foreign Service, a distinct job category. Although
qualified for a mid-level grade, William Shea, a white
male, was hired as an entry-level Foreign Service
officer because only minorities were eligible for
mid-level grades through the race-based plan. He sued
under Section 717 of Title VII of the Civil Rights Act of
1964, arguing that the Affirmative Action plan could
not satisfy Weber. The D.C. Circuit Court of Appeals
held that the evidence of a racial imbalance in the
Senior Foreign Service justified race-based action
targeted at the mid-levels of the Foreign Service. The
questions presented are:
1. Does Section 717’s command that all covered
federal employees shall be “free from any
discrimination based on . . . race” forbid the federal
government from adopting race-based affirmative
action plans?
2. If not, may an employer use a race-based
affirmative action plan for a job category that is not
racially imbalanced based on evidence of an imbalance
in an entirely different job category?
ii
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . i
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . iv
PETITION FOR WRIT OF CERTIORARI . . . . . . . . 1
OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . 1
JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATUTORY PROVISION AT ISSUE . . . . . . . . . . 1
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . 6
A. The Department of State’s
Race-Based Affirmative Action Plan . . . . . 6
B. Proceedings Below . . . . . . . . . . . . . . . . . . . 9
REASONS FOR GRANTING THE WRIT . . . . . . . 10
I. THIS COURT SHOULD DECIDE
WHETHER TITLE VII PERMITS
THE FEDERAL GOVERNMENT
TO DISCRIMINATE ON THE
BASIS OF RACE PURSUANT TO
AN AFFIRMATIVE ACTION PLAN . . . . . . . 11
A. The Decision Below Reads Section 717
Contrary To Its Explicit Text . . . . . . . . . 12
B. The Decision Below Creates an
Unneccessary Conflict Between
Section 717 and the Constitution . . . . . . 17
C. The Decision Below
Conflicts With This Court’s
Decision in Ricci v. DeStefano . . . . . . . . . 22
iii
TABLE OF CONTENTS—Continued
Page
II. CERTIORARI SHOULD BE GRANTED
BECAUSE THE DECISION BELOW
RADICALLY INCREASES THE NUMBER
OF RACE-BASED AFFIRMATIVE
ACTION PLANS PUBLIC AND
PRIVATE EMPLOYERS CAN ADOPT . . . . . 25
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
APPENDIX
Opinion of the Court of Appeals . . . . . . . . . . . . . . A-1
Judgment of the Court of Appeals . . . . . . . . . . . . B-1
Order Withholding Issuance of Mandate . . . . . . . C-1
District Court Memorandum Opinion . . . . . . . . . D-1
42 U.S.C. § 2000e-16 . . . . . . . . . . . . . . . . . . . . . . . E-1
iv
TABLE OF AUTHORITIES
Page
Cases
Adarand Constructors, Inc. v. Pena,
515 U.S. 200 (1995) . . . . . . . . . . . . . . . . . . . . . 4, 18
Ali v. Fed. Bureau of Prisons,
552 U.S. 214 (2008) . . . . . . . . . . . . . . . . . . . . . . . 14
Brown v. Gen. Servs. Admin.,
425 U.S. 820 (1976) . . . . . . . . . . . . . . . . . . . . . . . 13
City of Richmond v. J.A. Croson Co.,
488 U.S. 469 (1989) . . . . . . . . . . . . . . . . . 14, 18, 27
Clark v. Martinez, 543 U.S. 371 (2005) . . . . . . 21-22
Clegg v. Arkansas Dep’t of Correction,
496 F.3d 922 (8th Cir. 2007) . . . . . . . . . . . . . . . . 15
Doe v. Kamehameha Schools/
Bernice Pauahi Bishop Estate,
470 F.3d 827 (9th Cir. 2006) . . . . . . . . . . . . . 26, 28
Duncan v. Walker, 533 U.S. 167 (2001) . . . . . . . . . 14
Fisher v. Univ. of Tex. at Austin,
133 S. Ct. 2411 (2013) . . . . . . . . . . . . . . . . . . 18, 20
Freeman v. Pitts, 503 U.S. 467 (1992) . . . . . . . . . . 22
Gratz v. Bollinger, 539 U.S. 244 (2003) . . . . . . . . . . 3
Grutter v. Bollinger, 539 U.S. 306 (2003) . . . . . . . . 27
Harding v. Gray,
9 F.3d 150 (D.C. Cir. 1993) . . . . . . . . . . . . . . . . . 19
Harrison v. PPG Industries, Inc.,
446 U.S. 578 (1980) . . . . . . . . . . . . . . . . . . . . . . . 14
v
TABLE OF AUTHORITIES—Continued
Page
Higgins v. City of Vallejo,
823 F.2d 351 (9th Cir. 1987) . . . . . . . . . . . . . . . . 26
Jackson v. Birmingham Bd. of Educ.,
544 U.S. 167 (2005) . . . . . . . . . . . . . . . . . . . . . . . 13
Johnson v. Transp. Agency, Santa Clara
Cnty., Cal., 480 U.S. 616 (1987) . . . . . . . . . passim
McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973) . . . . . . . . . . . . . . . . . . . . 18-19
Newport News Shipbuilding & Dry Dock Co.
v. EEOC, 462 U.S. 669 (1983) . . . . . . . . . . . . . . 13
Olmstead v. L.C. ex rel. Zimring,
527 U.S. 581 (1999) . . . . . . . . . . . . . . . . . . . . . . . 13
Parents Involved in Cmty. Schs. v. Seattle
Sch. Dist. No. 1, 551 U.S. 701 (2007) . . . . . . . . . 27
Phelan v. City of Chicago,
347 F.3d 679 (7th Cir. 2003) . . . . . . . . . . . . . 19-20
Pierce v. Commonwealth Life Ins. Co.,
40 F.3d 796 (6th Cir. 1994) . . . . . . . . . . . . . . . . . 21
Regents of Univ. of Cal. v. Bakke,
438 U.S. 265 (1978) . . . . . . . . . . . . . . . . . . . . . . . 14
Ricci v. DeStefano,
557 U.S. 557 (2009) . . . . . . . . . . 4, 9-10, 20, 22-24
Shea v. Clinton, No. 08-5491,
2009 WL 1153448 (D.C. Cir. Apr. 2, 2009) . . . . . 9
Shea v. Kerry,
796 F.3d 42 (D.C. Cir. 2015) . . . . . . . . . . . . . . 1, 10
vi
TABLE OF AUTHORITIES—Continued
Page
Shea v. Kerry,
961 F. Supp. 2d 17 (D.D.C. 2013) . . . . . . . . . . . 1, 9
Shea v. Rice, 409 F.3d 448 (D.C. Cir. 2005) . . . . . . . 9
Stuart v. Roache,
951 F.2d 446 (1st Cir. 1991) . . . . . . . . . . . . . . . . 26
Taken v. Okla. Corp. Comm’n,
125 F.3d 1366 (10th Cir. 1997) . . . . . . . . . . . . . . 19
United States v. Gonzales, 520 U.S. 1 (1997) . . . . . 14
United Steelworkers of Am., AFL-CIO-CLC
v. Weber, 443 U.S. 193 (1979) . . . . . . . . . . . passim
Wygant v. Jackson Bd. of Educ.,
476 U.S. 267 (1986) . . . . . . . . . . . . . . . . . . . . . . . 14
Federal Statutes
5 U.S.C. § 7201(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
22 U.S.C. § 3901, et seq. . . . . . . . . . . . . . . . . . . 27-28
§ 3945 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
28 U.S.C. § 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 1
42 U.S.C. § 2000e-2(a) . . . . . . . . . . . . . . . . . . . . . . . 12
§ 2000e-2(j) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
§ 2000e-16(a) . . . . . . . . . . . . . . . . . . . 2-3, 6, 11, 13
Pub. L. 99-93,
99 Stat. 405, Title I, § 152(a) . . . . . . . . . . . . . . 6-7
Pub. L. 100-204,
101 Stat. 1331, Title I, § 183(b) . . . . . . . . . . . . . . 7
vii
TABLE OF AUTHORITIES—Continued
Page
Rule of Court
Sup. Ct. R. 10(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 10
Miscellaneous
McGinley, Ann C., The Emerging Cronyism
Defense and Affirmative Action:
A Critical Perspective on the Distinction
Between Colorblind and Race-Conscious
Decision Making Under Title VII,
39 Ariz. L. Rev. 1003 (1997) . . . . . . . . . . . . . . . . 26
Sullivan, Charles A., Circling Back to the
Obvious: The Convergence of Traditional
and Reverse Discrimination in Title VII Proof,
46 Wm. & Mary L. Rev. 1031 (2004) . . . . . . . . . 21
1
PETITION FOR WRIT OF CERTIORARI
Petitioner William E. Shea respectfully submits
this petition for a writ of certiorari to review the
judgment of the United States Court of Appeals for the
District of Columbia Circuit.
Ë
OPINIONS BELOW
The opinion of the United States Court of Appeals
for the District of Columbia Circuit is reported at 796
F.3d 42 and is reproduced in the Appendix (App.) at A1-48. The opinion of the United States District Court
for the District of Columbia is reported at 961 F. Supp.
2d 17 and is reproduced at App. at D-1-81.
Ë
JURISDICTION
The United States Court of Appeals for the
District of Columbia Circuit rendered its decision on
August 7, 2015. App. B-1-2. This Court has jurisdiction
under 28 U.S.C. § 1254(1).
Ë
STATUTORY PROVISION AT ISSUE
Title VII of the Civil Rights Act of 1964 provides
in relevant part:
All personnel actions affecting
employees or applicants for employment
(except with regard to aliens employed
outside the limits of the United States) in
military departments as defined in
section 102 of Title 5, in executive agencies
2
as defined in section 105 of Title 5 (including
employees and applicants for employment
who are paid from nonappropriated funds),
in the United States Postal Service and the
Postal Regulatory Commission, in those
units of the Government of the District of
Columbia having positions in the competitive
service, and in those units of the judicial
branch of the Federal Government having
positions in the competitive service, in the
Smithsonian Institution, and in the
Government Publishing Office, the
Government Accountability Office, and the
Library of Congress shall be made free from
any discrimination based on race, color,
religion, sex, or national origin.
42 U.S.C. § 2000e-16(a).
Ë
INTRODUCTION
On September 1, 1990, Petitioner William E. Shea
(Shea), a white male, applied to become a Foreign
Service officer with the United States Department of
State (Department). App. A-3. The Department had no
authority to hire Shea in a mid-level grade under the
mandates of its race-based Mid-Level Affirmative
Action Plan (Affirmative Action Plan). App. A-3-6.
Instead, on May 31, 1992, the Department offered
Shea an entry-level1 Foreign Service officer grade,
1
At the time he was hired, the Foreign Service career ladder had
six levels ranging from FS-06 (entry-level) to FS-01 (upper-level).
App. A-3. FS-06, FS-05, and FS-04 are entry-level grades. FS-03
(continued...)
3
which he accepted. App. A-3. Other members of Shea’s
introductory class with similar qualifications who
self-identified as racial minorities were hired directly
into mid-level grades under the Affirmative Action
Plan. App. D-6. Shea was ready and able to apply and
would have applied for a mid-level grade, if it had been
open to him on a race-neutral footing. App. A-11. Shea
brought suit challenging the Department’s
discriminatory personnel action under Section 717 of
Title VII of the Civil Rights Act of 1964. 42 U.S.C.
§ 2000e-16(a); see also Gratz v. Bollinger, 539 U.S. 244,
262 (2003) (individual has Article III standing to
challenge a race-based program which denied “the
opportunity to compete . . . on an equal basis”).
Unlike Title VII’s Section 703—which applies to
private employers—Section 717 only applies to
personnel actions taken by the federal government.
Although the language of the prohibitions on
race-based discrimination in the two statutes is
different, the D.C. Circuit held that Section 717
claims of intentional discrimination by the federal
government are analyzed under the Section 703
framework that this Court established for claims of
intentional discrimination by private employers. App.
A-21. Under Section 703, the standard of review
depends on the race of the plaintiff and the “type” of
discrimination alleged. Because Shea is a white male
challenging intentional discrimination required by an
affirmative action plan, the lower court held that he
must prove that the Department’s discrimination was
not undertaken to remedy a “manifest imbalance” in a
1
(...continued)
and FS-02 are mid-level grades. FS-01 is the lone upper-level
grade. Shea was hired into an FS-05 level. App. A-3.
4
“traditionally segregated job category.” App. A-25; see
also United Steelworkers of Am., AFL-CIO-CLC v.
Weber, 443 U.S. 193, 207 n.7 (1979) (white males
challenging race-based affirmative action under
Section 703 must prove that the employer’s
discrimination was not targeted at remedying a
manifest imbalance in a traditionally segregated job
category); Johnson v. Transp. Agency, Santa Clara
Cnty., Cal., 480 U.S. 616, 631, 637-38 (1987) (same).
Under that standard, the D.C. Circuit held that the
Affirmative Action Plan did not violate Title VII,
because it was designed to remedy a manifest racial
imbalance in the Senior Foreign Service. App. A-28-32.
The Court should grant the petition for certiorari
because this case raises two important questions of
federal law that have not been, but should be, settled
by this Court. Sup. Ct. R. 10(c). First, this Court has
never held that Section 717 allows the federal
government to discriminate on the basis of race
pursuant to an affirmative action plan. Unlike
Section 703, Section 717 unambiguously forbids
race-based personnel actions. Moreover, reading
Section 717 to require different standards of review,
based on the race of the individual discriminated
against would cause that statute to conflict with the
Fifth Amendment’s Due Process Clause. See Adarand
Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995)
(Due Process Clause prohibits the federal government
from discriminating based on race). The D.C. Circuit’s
decision also conflicts with this Court’s decision in
Ricci v. DeStefano, 557 U.S. 557, 582-85 (2009),
holding that all governmental race-based
discrimination presumptively violates Title VII and
can only survive if the government employer proves its
actions were necessary.
5
Second, even if the Section 703 cases of Johnson
and Weber apply to intentional discrimination claims
brought by white plaintiffs under Section 717, the
Court should grant certiorari to reverse the D.C.
Circuit’s radical expansion of Johnson and Weber.
Until the decision below, no court had ever held that
an employer’s race-based affirmative action plan may
be justified by a manifest imbalance in a job category
separate from the one receiving the preference. Here,
the D.C. Circuit agreed with Shea that there was no
manifest imbalance in the mid-levels of the Foreign
Service where the Department’s race-based plan was
targeted. App. A-27-28. Nevertheless, the court upheld
the Department’s discriminatory personnel decision
because it found a manifest imbalance in the Senior
Foreign Service. App. A-28-32. The D.C. Circuit’s
decision would permit all employers subject to
Title VII—public or private—to indefinitely continue
race-based discrimination throughout all of the
employer’s job categories so long as a single job
category remained “out of balance.”
This case illustrates the problem with the D.C.
Circuit’s radical extension of Johnson and Weber.
There exist a myriad of requirements to become a
Senior Foreign Service officer, and the promotion path
to the Senior Foreign Service officer is not just long,
but highly uncertain and subjective. Most Foreign
Service officers never reach the Senior Foreign Service,
and it is sheer speculation whether beginning at a
mid-level grade—without the benefit of years of
professional development in entry-level grades—helps
or hurts the quest for promotion into the Senior
Foreign Service. And, of course, the Department has
produced no evidence suggesting it forecast 15 or 20
years into the future to see whether minority groups
6
targeted by the Affirmative Action Plan would still be
underrepresented in the Senior Foreign Service when
those hires might be expected to be considered for
promotion.
If Section 717 means what it plainly says, the
Department’s Affirmative Action Plan is illegal. It is a
“personnel action” that “affects” Shea, an “employee”
and former “applicant for employment,” and it
“discriminated” against him “based on race.” 42 U.S.C.
§ 2000e-16(a). Yet, the D.C. Circuit read Section 717 to
allow the federal government to engage in this overt
and intentional discrimination. Worse, the D.C.
Circuit’s decision radically constricts Title VII’s
protections for individuals subjected to intentional
discrimination by their public or private employer.
This Court should grant the petition and review the
D.C. Circuit’s decision.
Ë
STATEMENT OF THE CASE
A. The Department of State’s
Race-Based Affirmative Action Plan
The Foreign Relations Authorization Act, Fiscal
Years 1986-1987 (1986-87 Foreign Relations Act)
directed the Department of State to “increase
significantly the number of members of minority
groups and women in the Foreign Service.” Pub. L.
99-93, 99 Stat. 405, Title I, § 152(a). The 1986-87
Foreign Relations Act did not require the Department
to adopt race-based means of increasing minority
representation in the Foreign Service, id., nor are
racial preferences required by any other statute. To the
contrary, Congress directed the Department to engage
7
in “recruitment” efforts to increase the members of
minority groups in the foreign service. See id. (citing
5 U.S.C. § 7201(c). Section 7201 explicitly disclaims
discrimination on the basis of race.
On January 1, 1987, the Department instituted
the Affirmative Action Plan, under its more general
Mid-Level Foreign Service Career Candidate Program.
App. A-3-6. The Mid-Level Foreign Service Career
Candidate Program authorized the Department to hire
candidates directly into mid-level Foreign Service
grades if it obtained a “certification of need,” a
document demonstrating that the Department needed
an individual at a mid-level grade with specific
qualifications. App. D-5. The Affirmative Action Plan
eliminated the certificate of need requirement for
minority applicants. App. D-5. The Department
produced no evidence in this case showing racial
disparities in the mid-levels of the Foreign Service at
the time the Affirmative Action Plan was adopted.
App. A-5. Nor did the Department produce any
evidence showing racial disparities in the mid-levels of
the Foreign Service at any time throughout the life of
the Affirmative Action Plan. A-29. Without referencing
the Affirmative Action Plan, the Foreign Relations
Authorization Act, Fiscal Years 1988-1989, demanded
efforts to increase minority representation in the
senior levels of the Foreign Service. Pub. L. 100-204,
101 Stat. 1331, Title I, § 183(b). However, the
Department made no substantive revisions to the
Affirmative Action Plan as a result of the 1988-89
Foreign Relations Act.
In 1989, the Secretary of State commissioned a
report on Foreign Service personnel. App. D-34. In
June of 1989, the General Accounting Office (GAO)
8
issued a report titled, State Department: Minorities and
Women Are Underrepresented in the Foreign Service.
App. D-35. According to the GAO Report, the only
minority males who were underrepresented in the
mid-levels of the Foreign Service were males
identifying as Asian/Pacific Islanders. App. A-5. Black
males, Hispanic males, and Indian/Alaskan males were
fully represented in the mid-levels of the Foreign
Service. App. A-5. The GAO Report also explains that
the Affirmative Action Plan was not designed to
increase minority representation in the senior levels of
the Foreign Service. App. A-6.
A subsequent Multi-Year Report issued in 1990
maintained the status quo—all non-white individuals
were still eligible for the preference—though it
purported to establish “goals” to increase minority
participation in positions where the Department had
documented racial underrepresentation. App. D-40.
However, as noted above, the data in the Multi-Year
Report failed to show any imbalance—much less a
manifest one—in the mid-levels of the Foreign Service.
Indeed, Black males, Hispanic males, and
Asian-American males were vastly over-represented in
the mid-levels of the Foreign Service. App. D-56-57.
Moreover the “goals” created by the Multi-Year Report
were illusory. The goals did nothing to cabin
Affirmative Action Plan-eligibility for non-white
individuals from fully represented racial groups. App.
D-24. Indeed, it is unclear what effect, if any, the goals
had on the Affirmative Action Plan. The Department
continued to give preferential treatment to all
individuals from minority groups identified in the
Affirmative Action Plan, and continued to disfavor
white males. App. D-24.
9
B. Proceedings Below
On July 11, 2001, Shea filed a grievance with the
Department asserting that he was being discriminated
against on the basis of his race in violation of Title VII.
App. A-8. The Department failed to resolve the
grievance within 90 days, after which Shea filed the
grievance with the Foreign Service Grievance Board.
App. A-8. On January 30, 2002, the Board dismissed
Shea’s grievance for lack of jurisdiction. Having
exhausted his administrative remedies, Shea filed suit
in the United States District Court for the District of
Columbia on March 26, 2002. App. A-8.
The D.C. Circuit twice reversed district court
decisions dismissing Shea’s suit on procedural grounds.
See Shea v. Rice, 409 F.3d 448, 456 (D.C. Cir. 2005);
Shea v. Clinton, No. 08-5491, 2009 WL 1153448, at *1
(D.C. Cir. Apr. 2, 2009). Back in the district court for
the third time, the parties filed cross-motions for
summary judgment. App. D-8. After full briefing, the
lower court granted the Department’s motion for
summary judgment and denied Shea’s motion. Shea v.
Kerry, 961 F. Supp. 2d 17, 55 (D.D.C. 2013). District
Court Judge Lamberth questioned the continuing
validity of Weber and Johnson in light of this Court’s
decision in Ricci, but felt compelled to apply the earlier
cases absent a clear decision from this Court. Id. at 55
n.17.
Shea timely appealed the district court’s decision
dismissing his case. App. B-1. Shea argued that Ricci
clarified that in Title VII cases where the government
overtly and intentionally discriminates on the basis of
race, the burden is on the employer—and not the
individual discriminated against—to prove the
lawfulness of its discrimination. In addition, Shea
10
argued that even under Weber and Johnson, the
Department failed to prove that its Affirmative Action
Plan was designed to remedy a “manifest imbalance”
of minorities in a “traditionally segregated job
category.” App. D-56.
The court of appeals affirmed the district court’s
ruling. App. B-1-2; Shea v. Kerry, 796 F.3d 42, 65 (D.C.
Cir. 2015). It held that Ricci does not govern cases of
intentional discrimination where the government
employer’s discriminatory conduct is designed to
“expand job opportunities for minorities and women.”
Id. at 55. In addition, the court held that the
Department is not required to prove a “manifest
imbalance” in the job category offering the racially
preferential treatment, i.e. mid-level grades. Instead,
the court upheld the Mid-Level Affirmative Action
Plan because it found a “manifest imbalance” in the
Senior Foreign Service. Id. at 58-60. Judge Williams
filed a concurring opinion expressing his belief that the
terms “manifest imbalance,” “traditionally segregated
job category,” and “unnecessarily trammels the rights”
from Weber and Johnson are amorphous and
uncertain. Id. at 65 (Williams, J., concurring).
Ë
REASONS FOR GRANTING THE WRIT
Certiorari should be granted because the D.C.
Circuit “has decided an important question of federal
law that has not been, but should be, settled by this
Court.” Sup. Ct. R. 10(c).
11
I
THIS COURT SHOULD
DECIDE WHETHER TITLE VII
PERMITS THE FEDERAL
GOVERNMENT TO DISCRIMINATE
ON THE BASIS OF RACE PURSUANT
TO AN AFFIRMATIVE ACTION PLAN
Section 717 of Title VII explicitly prohibits federal
governmental discrimination: “All personnel actions
affecting employees or applicants for employment . . .
in executive agencies . . . shall be made free from any
discrimination based on race.” 42 U.S.C. § 2000e-16(a)
(emphasis added). This statute covers the actions
taken by the Department here. The Department made
a personnel decision that affected William Shea—an
applicant for employment—and that personnel decision
was race-based and discriminatory. Put simply, had
Shea identified himself as belonging to any of the
Department’s preferred races, he would have been
eligible to apply for a mid-level placement through the
Affirmative Action Plan. As a white male, the
opportunity was closed to him.
The court below held that Section 717’s
prohibition on racial discrimination by the federal
government should be analyzed using the same
framework as Section 703’s prohibition on
discrimination by private and municipal employers.2
2
The text of Section 703’s prohibition on racial discrimination
reads in pertinent part that it shall be an unlawful employment
practice for an employer “to fail or refuse to hire or to discharge
any individual, or otherwise to discriminate against any
individual with respect to his compensation, terms, conditions, or
(continued...)
12
App. A-8-9. Therefore, because the Department’s
race-based discrimination was undertaken in
accordance with an affirmative action plan, the lower
court analyzed the Department’s discriminatory
personnel actions under the framework this Court laid
forth in Johnson, 480 U.S. 616, and Weber, 443 U.S.
193.
Under Johnson and Weber, a non-minority
plaintiff bears the burden of proving that the
employer’s race-based discrimination was illegal. A
challenger to a race-based affirmative action plan must
show that the discriminatory employment decision was
not undertaken in response to a “manifest imbalance
in a traditionally segregated job category,” or that the
decision “unnecessarily trammeled” the rights of
non-minorities. Johnson, 480 U.S. at 631, 637-38. In
this case, the lower court reasoned that Shea bore the
burden of proving that the Department’s Affirmative
Action Plan did not remedy a manifest imbalance in a
traditionally segregated job category, or, alternatively,
that the plan unnecessarily trammeled the rights of
non-minorities like him. App. A-22. By applying
Johnson and Weber to claims arising under
Section 717, the lower court radically extends those
cases to permit previously illegal and unconstitutional
race-based discrimination by the federal government.
A. The Decision Below Reads Section 717
Contrary To Its Explicit Text
Section 717 of Title VII provides an important
protection against race-based discrimination by the
2
(...continued)
privileges of employment, because of such individual’s race, color,
religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a).
13
federal government. Before Section 717 was added to
Title VII, federal employees—and applicants for
federal employment like William Shea—had difficulty
securing judicial relief from federal government
discrimination. See Brown v. Gen. Servs. Admin., 425
U.S. 820, 825-26 (1976). Congress added Section 717 to
create “an exclusive, pre-emptive administrative and
judicial scheme for the redress of federal employment
discrimination.” Id. at 829. By reading Section 717
contrary to its explicit text, the D.C. Circuit’s decision
returns federal law to a time when thousands of
federal employees lacked adequate judicial relief for
federal government discrimination. Only this Court
can return Section 717 to its plain meaning, and
provide adequate remedies against discrimination for
individuals of all races.
Section 717 prohibits “any discrimination” on the
basis of race by the federal government when it
undertakes a “personnel action.” 42 U.S.C.
§ 2000e-16(a). The text is clear and unambiguous. In
interpreting statutory text, this Court has repeatedly
held that “discrimination” means “less favorable
treatment.” See Newport News Shipbuilding & Dry
Dock Co. v. EEOC, 462 U.S. 669, 682 n.22 (1983)
(interpreting “discrimination” in Title VII); Jackson v.
Birmingham Bd. of Educ., 544 U.S. 167, 174 (2005)
(under Title IX “discrimination” means “being
subjected to differential treatment”; see also Olmstead
v. L.C. ex rel. Zimring, 527 U.S. 581, 614 (1999)
(Kennedy, J., concurring in the judgment) (“[T]he
normal definition of discrimination [means the]
differential treatment of similarly situated groups.”).
Moreover, this Court has long understood that
race-based affirmative action may constitute
discrimination against individuals not entitled to the
14
racially preferential treatment. See, e.g., Regents of
Univ. of Cal. v. Bakke, 438 U.S. 265, 307 (1978)
(Powell, J., op.) (“Preferring members of any one group
for no reason other than race or ethnic origin is
discrimination for its own sake.”); Wygant v. Jackson
Bd. of Educ., 476 U.S. 267, 273-74 (1986) (plurality op.)
(a race-based layoff preference for minority teachers
discriminated against non-minority teachers); City of
Richmond v. J.A. Croson Co., 488 U.S. 469, 478 (1989)
(racial preference for minority contractors
discriminated against non-minority contractors).
While this Court has interpreted Section 703’s
prohibition on discrimination to permit certain
race-based discrimination by employers when the
discrimination is intended to alleviate “manifest racial
imbalance in traditionally segregated job categories,”
Weber, 443 U.S. at 207 n.7, the text of Section 703
differs from Section 717 in important respects. First,
unlike Section 703, Section 717 prohibits “any”
discrimination based on race. To the extent that
remedial race-based action is permissible under
Section 703 because it only prohibits “discrimination,”
Section 717’s prohibition against “any discrimination”
goes further. See, e.g., Ali v. Fed. Bureau of Prisons,
552 U.S. 214, 218-21 (2008) (use of the word “any” in
statutory text has an expansive meaning); United
States v. Gonzales, 520 U.S. 1, 5 (1997) (Congress’s use
of “any” leaves “no basis in the text for limiting” the
modified phrase); Harrison v. PPG Industries, Inc., 446
U.S. 578 (1980) (use of “any” as a modifying phrase
leaves no room for uncertainty); cf. Duncan v. Walker,
533 U.S. 167, 174 (2001) (noting the Court’s reluctance
“to treat statutory terms as surplusage in any setting”)
(quotation marks omitted). It prohibits the federal
15
government from discriminating at all. Second,
whereas Section 703(a) lists the specific personnel
decisions that must be free from racial discrimination,
Section 717(a) explicitly prohibits “all personnel
actions affecting employees or applicants for
employment.” See Clegg v. Arkansas Dep’t of
Correction, 496 F.3d 922, 928 (8th Cir. 2007) (Under
Section 703, “[a]n employer’s denial of a training
request, without something more, is not itself an
adverse employment action.”). There can be little doubt
that Congress intended Section 717’s prohibition on
racial discrimination to be further reaching than the
prohibition in Section 703.
This Court touched on these distinctions in Weber,
disagreeing over whether the text of Section 703
prohibited any racial discrimination or just
non-remedial racial discrimination. Compare Weber,
443 U.S. at 207 (“Congress did not intend to limit
traditional business freedom to such a degree as to
prohibit all voluntary, race-conscious affirmative
action.”), with id. at 216 (Blackmun, J., dissenting) (“I
cannot join the Court’s judgment, however, because it
is contrary to the explicit language of the statute.”).
The majority read Section 703 to permit certain
race-based discrimination for two reasons. First, the
Court was persuaded that Congress never intended to
prohibit private employers from enacting voluntary
race-conscious affirmative action programs. See Weber,
443 U.S. at 207 (holding that Congress desired to
“avoid undue federal regulation of private
businesses.”). The Weber Court’s desire to avoid undue
interference with private business has no purchase
when it comes to Section 717, which only applies to the
federal government.
16
Second, the Weber Court read Section 703(j)3 as an
indication that Congress intended for private
businesses to have the flexibility to enact affirmative
action plans. Section 703(j), which clarifies that
Section 703 shall not “be interpreted to require any
employer . . . to grant preferential treatment to any
individual or to any group because of the[ir] race,” has
no analog in Section 717. 42 U.S.C. § 2000e-2(j). The
Weber Court found that Congress would have written
Section 703(j) differently had it intended for private
businesses to be prohibited from enacting voluntary
affirmative action programs. See Weber, 443 U.S.
at 204-07. While the Court’s “natural inference” is
debatable,4 no similar inference can be made with
3
Section 703(j) reads: “Nothing contained in this subchapter shall
be interpreted to require any employer, employment agency, labor
organization, or joint labor-management committee subject to this
subchapter to grant preferential treatment to any individual or to
any group because of the race, color, religion, sex, or national
origin of such individual or group on account of an imbalance
which may exist with respect to the total number or percentage of
persons of any race, color, religion, sex, or national origin
employed by any employer, referred or classified for employment
by any employment agency or labor organization, admitted to
membership or classified by any labor organization, or admitted
to, or employed in, any apprenticeship or other training program,
in comparison with the total number or percentage of persons of
such race, color, religion, sex, or national origin in any community,
State, section, or other area, or in the available work force in any
community, State, section, or other area.” 42 U.S.C. § 2000e-2(j).
4
See Weber, 443 U.S. at 217 (Burger, C.J., dissenting) (“One need
not even resort to the legislative history to recognize what is
apparent from the face of Title VII—that it is specious to suggest
that § 703(j) contains a negative pregnant that permits employers
to do what §§ 703(a) and (d) unambiguously and unequivocally
forbid employers from doing.”).
17
respect to Section 717, which contains no such
provision or inference.
The text of Section 717 unmistakably prohibits
federal executive agencies—the Department of State
here—from choosing to adopt race-based affirmative
action plans. However, the D.C. Circuit’s decision
below created a broad exception to this clear and
unambiguous non-discrimination statute. This Court
should grant the petition for certiorari in order to
prevent this far-reaching opinion from infecting the
federal government, and allowing it to violate federal
employees’ rights to nondiscrimination guaranteed by
Title VII.
B. The Decision Below Creates an
Unneccessary Conflict Between
Section 717 and the Constitution
By holding that Section 717 permits race-based
intentional discrimination by the federal government,
the D.C. Circuit’s decision renders Section 717
unconstitutional. And because the D.C. Circuit’s
decision applies to all actions taken by the federal
government across the United States, the decision
below eliminates an important protection against
federal government discrimination for individuals
nationwide. This constitutional conflict can be easily
avoided, however, by reading Section 717 according to
its plain text. Review is needed to avoid this
constitutional conflict and ensure that individuals
applying for, or working for, the federal government
enjoy Title VII’s full protections against racial
discrimination.
The Due Process Clause of the Fifth Amendment
requires the federal government to treat all individuals
18
equally with respect to race. See Adarand, 515 U.S.
at 227. The Due Process Clause is “congruent” with the
Fourteenth Amendment’s Equal Protection Clause; it
demands “skepticism” of all race-based distinctions,
and “‘is not dependent on the race of those burdened or
benefitted by a particular classification.’” Id. at 224
(quoting Croson, 488 U.S. at 494). Accordingly, “any
official action that treats a person differently on
account of his race or ethnic origin is inherently
suspect.” Fisher v. Univ. of Tex. at Austin, 133 S. Ct.
2411, 2419 (2013).
By contrast, the standard under which courts
evaluate claims under Section 703 depends upon a
plaintiff’s race. Indeed, this Court has established two
different tests for private employers who are alleged to
violate Title VII. In the case of a minority plaintiff,
Section 703(a) claims are analyzed under the
burden-shifting rules of McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802-04 (1973). Under McDonnell
Douglas, a plaintiff’s prima facie case must
demonstrate that: (1) he belongs to a member of a
protected class; (2) he applied and was qualified for a
job for which the employer was seeking applicants;
(3) despite his qualifications, he was rejected; and
(4) after his rejection, the position remained open, and
the employer continued to seek applicants from
persons with the complainant’s qualifications. Id.
at 802. Once a prima facie case is established, the
burden shifts to the employer to “articulate some
legitimate, nondiscriminatory reason” for the
applicant’s rejection. Id. If the employer is able to
articulate such a legitimate, non-discriminatory
reason, the burden shifts back to the applicant to prove
19
that the employer’s non-discriminatory reason “was in
fact pretext.” Id. at 804.
However, where the plaintiff is a non-minority
discriminated against pursuant to a race-based
affirmative action program, the standard is markedly
different. The employer is no longer required to offer a
non-discriminatory reason for its action. See Johnson,
480 U.S. at 626. The mere “existence of an affirmative
action plan” satisfies the employer’s burden of
production, and the burden shifts immediately to the
applicant to prove the plan violates Title VII. Id. To
prove that an affirmative action plan violates Title VII,
an applicant must prove either the absence of a
“manifest . . . imbalance” of minorities in “traditionally
segregated job categories,” or that the plan
“unnecessarily trammel[s]” the interests of
non-minorities. Weber, 443 U.S. at 208-09.
All circuits that have addressed the issue have
held that non-minority plaintiffs must meet a higher
burden of proof under Section 703 than their minority
counterparts. See, e.g., Taken v. Okla. Corp. Comm’n,
125 F.3d 1366, 1369 (10th Cir. 1997). According to the
D.C. Circuit, for example, an inference of
discrimination arises in Title VII cases when the
plaintiff is a member of a minority group. Harding v.
Gray, 9 F.3d 150, 153 (D.C. Cir. 1993). But “[n]o such
inference arises when . . . the plaintiff is a white man.”
Id. The Seventh Circuit has similarly imposed
additional requirements on white plaintiffs in lawsuits
involving Title VII. Phelan v. City of Chicago, 347 F.3d
679, 684 (7th Cir. 2003). Unlike minority plaintiffs,
white plaintiffs must “show background circumstances
demonstrating that a particular employer has reason
or inclination to discriminate invidiously against
20
whites or evidence that there is something ‘fishy’ about
the facts at hand.” Id. (citations and quotations
omitted).
Unlike Section 703, however, Section 717 applies
solely to personnel actions taken by the federal
government. Because the Fifth Amendment’s Due
Process Clause prevents federal government action
that classifies on the basis of race, a changing standard
of review based on the race of the plaintiff—or the type
of discrimination alleged to cause harm—would violate
that Clause. And placing the burden of proof on a nonminority plaintiff to demonstrate that the federal
government’s facially race-based program violates
Title VII runs counter to this Court’s command that
the government always bears the “ultimate burden” of
demonstrating the need for racial discrimination. See
Fisher, 133 S. Ct. at 2419-20; see also Ricci, 557 U.S.
at 579-80 (employer bears the burden of showing why
a race-based employment action was necessary).
The due process conflict created by applying
Johnson and Weber to claims arising under Section 717
is clearly presented in this case. Despite the absence of
evidence demonstrating an imbalance in mid-levels of
the Foreign Service when Shea was hired, he bore the
burden of proving that the Department’s race-based
Affirmative Action Plan was illegal. Indeed, the district
court recognized this conflict:
The Court wonders why it is harder to
challenge an affirmative action plan under
Title VII than under the Constitution. When
challenging affirmative action under the
Equal Protection Clause, strict scrutiny
applies and the defendant has the ultimate
burden of explaining why it was necessary to
21
treat people differently based on their race.
But when the challenge is under Title VII,
we make the plaintiff ultimately prove that
race-based discrimination is illegal.
App. D-77. The district court is not alone; other courts
and commentators have recognized the conflict
between the Weber-Johnson standard and equal
protection. See, e.g., Pierce v. Commonwealth Life Ins.
Co., 40 F.3d 796, 801 n.7 (6th Cir. 1994) (“We have
serious misgivings about the soundness of a test which
imposes a more onerous standard for plaintiffs who are
white or male than for their non-white or female
counterparts.”); Charles A. Sullivan, Circling Back to
the Obvious: The Convergence of Traditional and
Reverse Discrimination in Title VII Proof, 46 Wm. &
Mary L. Rev. 1031, 1135 (2004) (“[I]t is
unconstitutional to apply different proof requirements
for claims by whites, as opposed to those by African
Americans and other racial minorities.”).
Shea should not have to bear the burden of
proving the illegality of the Department’s race-based
conduct. This Court need not overrule Weber and
Johnson to reach such a result. Those two cases can be
narrowed to situations where a private employer
voluntarily decides to engage in an affirmative action
plan. After all, that is precisely what the Weber Court
intended. See 443 U.S. at 207 (explaining that
Section 703 permits voluntary race-conscious action
undertaken by private business). By limiting Johnson
and Weber in this sensible manner, the constitutional
problem created here is easily avoided. See Clark v.
Martinez, 543 U.S. 371, 380 (2005) (explaining the
constitutional avoidance canon). Because Section 717
only applies to the federal government, this Court
22
should grant certiorari and hold that Section 717
requires the federal government to prove the necessity
of its race-based conduct before it imposes any racially
discriminatory measures.
C. The Decision Below
Conflicts With This Court’s
Decision in Ricci v. DeStefano
Ricci v. DeStefano clarified that race-based
employment decisions are generally “impermissible” by
government under Title VII. 557 U.S. 557, 563 (2009).
In the very limited circumstances where they are
permitted,5 the justification for governmental
race-based employment discrimination neither turns
on the race of the individual discriminated against, nor
the “benevolence” or good intentions of the government
employer. Id. at 579-80. Equal protection
principles—which presumptively prohibit race-based
classifications by the government—must guide a
government employer before it decides to engage in a
race-based employment decision. Id. at 582-85.
In Ricci, this Court was confronted with the
tension inherent between Section 703’s disparate
treatment provisions and its disparate impact
provisions. In resolving the statutory tension, this
Court held “that race-based action . . . is impermissible
under Title VII unless the employer can demonstrate
5
Title VII permits an employer to use race if it has a strong basis
in evidence of a disparate impact violation. Ricci, 557 U.S. at 585.
Although never addressed by this Court, Title VII may also permit
race-based affirmative action if necessary to remedy the effects of
past intentional discrimination. See Freeman v. Pitts, 503 U.S.
467, 494 (1992) (allowing race-based action under the Equal
Protection Clause to remedy the past effects of intentional
discrimination).
23
a strong basis in evidence that, had it not taken the
action, it would have been liable under the
disparate-impact statute.” Ricci, 557 U.S. at 563. The
Court understood that its decision—and the strong
basis in evidence standard—would significantly
“constrain[] employers’ discretion in making race-based
decisions.” Rather than presume the race-conscious
action to be legal, Ricci mandates that courts inquire
whether the employer has a strong basis in evidence to
support a valid defense. Id. After Ricci, the question in
all Title VII cases where the employer’s conduct is
facially discriminatory is “whether the [employer] had
a lawful justification for its race-based action.” Id.
at 579-80.
The D.C. Circuit below rejected this approach,
holding instead that Ricci only applies where an
employer “modif[ies] the outcomes of personnel
processes for the asserted purpose of avoiding
disparate-impact liability under Title VII.” App. A-22.
The lower court’s decision renders Ricci toothless.
Simply by asserting an “opportunity-based”
justification for their race-based conduct, employers
are relieved from proving a lawful justification for a
race-based decision; it becomes the employee’s burden
to prove the race-based decision was illegal. App. A-22.
For example, under the lower court’s theory, the exact
same race-based conduct this Court held violated
Title VII in Ricci—the City of New Haven’s decision to
throw out the test results—would have been upheld
had the City explained its actions as a general desire
to increase opportunities for racial minorities instead
of a specific desire to avoid disparate impact liability.
It makes little sense that an employer must assemble
a “strong basis in evidence” when it has a good faith
belief that it might be violating Title VII’s disparate
24
impact provisions, but its actions are presumed
lawful—and it need not produce any evidence—if it
discriminates to “increase opportunity.” Under the D.C.
Circuit’s holding, the justification for the
discrimination determines how the court reviews the
race-based action, and conflicts with Ricci’s
presumption that race-based action is illegal and
demands an extraordinary justification to be upheld.
Compare App. A-22, with Ricci, 557 U.S. at 579-80.
The lower court’s decision would permit
race-based employment decisions even where the
employer has no evidence of a potential disparate
impact violation. Under the lower court’s view,
race-based conduct undertaken to avoid disparate
impact is different in kind from race-based conduct
intended to create opportunities for minorities. App. A22. But the Ricci Court unambiguously held that an
employer must prove, by a strong basis in evidence,
that it will lose a Title VII disparate impact lawsuit
before it can legally engage in disparate treatment. 557
U.S. at 585. Thus, a fortiori, an employer should not be
able to engage in disparate treatment when there is
absolutely no fear of a disparate impact lawsuit.
The decision below undermines Ricci, because it
invites employers to avoid Ricci altogether by
announcing a more “benign” purpose for identical
race-based decisions. The Court should grant the
petition and reverse the lower court’s decision severely
limiting Ricci, as it permits the federal government to
engage in overt race-based discrimination under
Title VII.
25
II
CERTIORARI SHOULD BE GRANTED
BECAUSE THE DECISION BELOW
RADICALLY INCREASES THE NUMBER
OF RACE-BASED AFFIRMATIVE
ACTION PLANS PUBLIC AND
PRIVATE EMPLOYERS CAN ADOPT
Even if Johnson and Weber apply to claims
brought under Section 717, the Court should grant
certiorari to review the D.C. Circuit’s decision. If the
lower court’s application of Johnson and Weber
remains good law, all employers—public or
private—will have vastly greater authority to engage
in overt racial discrimination. No other circuit court
permits race-based affirmative action by employers
when the action is targeted at a job category without a
manifest racial imbalance.
This Court’s decisions in Johnson and Weber
permit affirmative action programs that would
otherwise violate Title VII as long as they address a
“manifest imbalance” in a “traditionally segregated job
category.” Johnson, 480 U.S. at 632. The requirement
that the imbalance be in a “traditionally segregated job
category” serves to limit the scope of the preferences, so
that “race will be taken into account in a manner
consistent with Title VII’s purpose of eliminating the
effects of employment discrimination, and that the
interests of those employees not benefitting from the
plan will not be unduly infringed.” Id. In order to serve
those interests, employers cannot be given license to
use racial preferences, unless the program is targeted
at remedying the imbalance where it actually exists.
26
But the decision below permits more than this
type of narrow remedial program. The D.C. Circuit
considered evidence of a “manifest imbalance” between
the races at the Senior Foreign Service to justify an
affirmative action program aimed at the mid-levels of
the Foreign Service. App A-28-A-32. Other circuits
have only applied Johnson-Weber to imbalances
existing in the particular job that is challenged—not
any job with the same employer. For example, in
Higgins v. City of Vallejo, the Ninth Circuit found that
the manifest imbalance standard was satisfied only
after an analysis of the imbalances that existed at all
levels of the city’s fire department. 823 F.2d 351, 356
(9th Cir. 1987). And in Stuart v. Roache, the First
Circuit upheld a consent decree that specifically
applied to both entry-level hires and promotions. 951
F.2d 446, 452 (1st Cir. 1991); see also Doe v.
Kamehameha Schools/Bernice Pauahi Bishop Estate,
470 F.3d 827, 862 (9th Cir. 2006) (en banc) (Bybee, J.,
dissenting) (criticizing the majority’s misapplication of
Johnson-Weber: “Until today, two findings were
required to satisfy this first factor: (1) the present
existence of a manifest imbalance in a particular job
category in the employer’s workforce; and (2) that this
imbalance stems from historical segregation in that job
category.”) (emphasis added).
Johnson-Weber is a narrow exception to the
“neutrality principle” of Title VII. See Ann C.
McGinley, The Emerging Cronyism Defense and
Affirmative Action: A Critical Perspective on the
Distinction Between Colorblind and Race-Conscious
Decision Making Under Title VII, 39 Ariz. L. Rev. 1003,
1008 (1997). The rationale for permitting limited
race-based decision making is remedial; as this Court
27
has said in the Equal Protection context, “[u]nless they
are strictly reserved for remedial settings,
[classifications based on race] may in fact promote
notions of racial inferiority and lead to a politics of
racial hostility.” Croson, 488 U.S. at 493. The decision
below stretches that remedial purpose and allows
employers to use race to correct non-existent problems.
This case highlights the difficulties with the D.C.
Circuit’s radical extension of Johnson and Weber. The
Department’s decision to remedy a racial imbalance at
the Senior Foreign Service by giving preferences
to minority applicants to mid-level grades is a
prototypical example of buying unclear benefits at
undeniable costs. See Parents Involved in Cmty. Schs.
v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 745 (2007).
The connection between racial preferences at the
mid-level and racial balance at the Senior Foreign
Service is attenuated at best, since mid-level officers
hoping for promotions to the senior levels require good
fortune just as much as good qualifications. Of course,
the Department has not produced—and cannot
produce—any evidence that the minority groups that
benefit from the Affirmative Action Plan would still
be underrepresented in the Senior Foreign Service
many years down the road when these preferences
could be expected to take effect. Nor could any such
plan be “limited in time.” Grutter v. Bollinger, 539 U.S.
306, 342 (2003).
The Department’s purported justification for
racial preferences at the mid-level—rectifying the
racial imbalance at the Senior Foreign Service—is
even more dubious in light of statutes allowing the
President to fill five percent of the Senior Foreign
Service through direct appointment. See 22 U.S.C.
28
§ 3901, et seq. The President is also authorized to
appoint members of the Senior Executive Service
directly to the Senior Foreign Service, 22 U.S.C.
§ 3945, even after the five-percent cap is met. See id.
(exempting Senior Executive Service members serving
under limited appointments in the Senior Foreign
Service from the five-percent cap). Thus, many
potential Senior Foreign Service officers may not even
come from the pool of candidates the Department relies
on to remedy the racial imbalance in the Senior
Foreign Service. As the President—in consultation
with the Department may appoint qualified minorities
to the Senior Foreign Services directly, and rectify any
racial imbalance immediately, the Department does
not need to resort to the sordid use of racial preferences
at the mid-levels to rectify the racial imbalance at the
Senior Foreign Service many years later.
Ë
CONCLUSION
“Weber and Johnson were willing to permit
affirmative action programs without giving all
employers license to discriminate in favor of any group
that currently finds itself disadvantaged anywhere in
the labor market.” Doe, 470 F.3d at 862 (Bybee, J.,
dissenting). The decision below poses a threat to that
proposition by granting an employer the license to
discriminate throughout an organization in response
to a manifest racial imbalance in one particular,
specialized job category. In addition, the decision below
extends Johnson and Weber to allow the federal
government to adopt race-conscious affirmative action
plans despite Section 717’s unambiguous text
forbidding such plans. This Court should grant the
29
petition to resolve the radical expansion of JohnsonWeber created by the panel below.
DATED: December, 2015.
Respectfully submitted,
MERIEM L. HUBBARD
RALPH W. KASARDA
JOSHUA P. THOMPSON*
WENCONG FA
*Counsel of Record
Pacific Legal Foundation
930 G Street
Sacramento, California 95814
Telephone: (916) 419-7111
Facsimile: (916) 419-7747
E-mail: jthompson@pacificlegal.org
Counsel for Petitioner
No. _______
In the
Supreme Court of the United States
Ë
WILLIAM E. SHEA,
v.
Petitioner,
JOHN F. KERRY, Secretary of State,
in his official capacity,
Respondent.
Ë
On Petition for Writ of Certiorari
to the United States Court of Appeals
for the District of Columbia Circuit
Ë
APPENDIX TO
PETITION FOR WRIT OF CERTIORARI
Ë
MERIEM L. HUBBARD
RALPH W. KASARDA
JOSHUA P. THOMPSON*
*Counsel of Record
Pacific Legal Foundation
930 G Street
Sacramento, California 95814
Telephone: (916) 419-7111
Facsimile: (916) 419-7747
E-mail: jpt@pacificlegal.org
Counsel for Petitioner
Petition for Writ of Certiorari filed December 7, 2015
i
TABLE OF CONTENTS
Opinion of the Court of Appeals . . . . . . . . . . . . . . A-1
Judgment of the Court of Appeals . . . . . . . . . . . . B-1
Order Withholding Issuance of Mandate . . . . . . . C-1
District Court Memorandum Opinion . . . . . . . . . D-1
42 U.S.C. § 2000e-16 . . . . . . . . . . . . . . . . . . . . . . . E-1
Appendix A–1
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 20, 2015
Decided August 7, 2015
No. 13-5153
WILLIAM E. SHEA,
APPELLANT
V.
JOHN F. KERRY, SECRETARY OF STATE,
IN HIS OFFICIAL CAPACITY,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:02-cv-00577)
Joshua P. Thompson argued the cause for
appellant. With him on the briefs were Meriem L.
Hubbard and Ralph W. Kasarda.
Darrell C. Valdez, Assistant U.S. Attorney, argued
the cause for appellee. With him on the brief were
Ronald C. Machen Jr., U.S. Attorney, and R. Craig
Lawrence, Assistant U.S. Attorney.
Before: ROGERS and SRINIVASAN, Circuit
Judges, and WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge
SRINIVASAN.
Concurring opinion filed by Senior Circuit Judge
WILLIAMS.
SRINIVASAN, Circuit Judge: From 1990 to 1992,
the State Department had in place a hiring plan aimed
to increase racial diversity among the officer corps in
Appendix A–2
the United States Foreign Service. William Shea, a
white Foreign Service Officer, brings suit alleging that
the hiring plan violated Title VII. Although Shea
challenges a plan that ceased to exist over twenty
years ago, he joined the Foreign Service during the two
years the plan was in effect. He alleges that, because
of the plan, he entered the Foreign Service at a lower
level than would have been the case had he been a
minority applicant.
The district court viewed Shea’s claim to be
controlled by the Supreme Court’s decisions in Johnson
v. Transportation Agency, Santa Clara County,
California, 480 U.S. 616 (1987), and United
Steelworkers of America, AFL-CIO-CLC v. Weber, 443
U.S. 193 (1979). Those decisions upheld employers’
affirmative action plans against Title VII challenges.
The district court, following Johnson and Weber,
granted summary judgment in favor of the State
Department. We agree with the district court and
affirm its judgment.
I.
A.
The United States Foreign Service, a branch of the
United States Department of State, works through its
Foreign Service Officers to “advocate American foreign
policy, protect American citizens, and promote
American interests throughout the world.” Taylor v.
Rice, 451 F.3d 898, 900 (D.C. Cir. 2006). Foreign
Service Officers “perform traditional diplomatic
responsibilities, including trade promotion, political
and economic reporting, and consular services and
protection.” Id.
Appendix A–3
In 1990, Shea applied for an entry-level Foreign
Service Officer position. At the time, the Foreign
Service career ladder consisted of six pay grades,
ranging from FS-06 (entry level) to FS-01 (upper level),
with the Senior Foreign Service (SFS) a step above
FS-01. The Department generally filled vacancies at
more senior ranks through internal promotions rather
than external hires. Applicants from outside the
agency thus ordinarily entered the Officer corps only at
the junior levels (FS-04, -05 and -06 levels). In May
1992, Shea joined the Foreign Service at the FS-05
level.
B.
In the years preceding Shea’s application to the
Foreign Service, the State Department faced
significant scrutiny about the lack of diversity of the
Foreign Service Officer corps. In 1985, Congress
perceived an underrepresentation of minorities among
Foreign Service Officers. Congress therefore enacted
legislation directing the Department to “develop . . . a
plan designed to increase significantly the number of
members of minority groups . . . in the Foreign
Service,” with a “particular emphasis on achieving
significant increases in the numbers of minority group
members . . . in the mid-levels of the Foreign Service,”
the FS-02 and -03 levels. Foreign Relations
Authorization Act, Fiscal Years 1986 and 1987, Pub. L.
No. 99-93, § 152(a), (b), 99 Stat. 405, 428 (1985).
Two years later, Congress remained unsatisfied.
Concluding that the State Department “ha[d] not been
successful in [its] efforts . . . to recruit and retain
members of minority groups,” Congress instructed the
Department to “substantially increase [its] efforts” to
ensure that the “Foreign Service becomes truly
Appendix A–4
representative of the American people throughout all
levels of the Foreign Service.” Foreign Relations
Authorization Act, Fiscal Years 1988 and 1989, Pub. L.
No. 100-204, § 183(a), (a)(1), (b)(1), 101 Stat. 1331,
1364 (1987). Congress specifically directed the
Department to “ensure that those [efforts] effectively
address the need to promote increased numbers of
qualified . . . members of minority groups into the
senior levels of the Foreign Service.” Id. § 183(b)(2).
Congress did not stand alone in raising concerns
about the diversity of the Foreign Service Officer corps.
In 1989, the General Accounting Office (now known as
the Governmental Accountability Office) released a
report entitled “State Department: Minorities and
Women Are Underrepresented in the Foreign Service.”
The 1989 GAO Report evaluated the Department’s
existing efforts, finding that, while “[p]rogress ha[d]
been mixed” in increasing diversity,
[m]inorities . . . were still substantially
underrepresented when compared with
civilian labor force data that the EEOC ha[d]
issued to measure federal agencies. . . .
In mid-level ranks of the officer corps,
minority male representation ha[d] increased,
but minority and white women ha[d] made
less progress. In State’s Senior Foreign
Service positions, underrepresentation of
minorities and white women [wa]s still
pervasive.
U.S. Gen. Accounting Office, State Department:
Minorities and Women Are Underrepresented in the
Foreign Service 15 (1989) (1989 GAO Report).
Appendix A–5
The 1989 GAO Report compared the Department’s
1987 minority workforce with the racial breakdown of
the American population possessing the skills required
for Foreign Service employment. That comparison
indicated that the Department generally fell short of
“full representation”—the level at which a minority
group would make up the same proportion of the
workforce as its proportion of the American population
possessing the relevant skills—at mid- and seniorlevel
Foreign Service Officer positions, as follows: for
women of each defined minority group at the SFS,
FS-01, -02, and -03 levels; black, Native American and
native Alaskan men at the SFS level; Hispanic men at
the SFS and FS-01 levels; and Asian and Pacific
Islander men at the SFS, FS-01, -02, and -03 levels.
The Civil Service Subcommittee of the House
Committee on Post Office and Civil Service convened
hearings focusing on the 1989 GAO Report’s findings
and on the results of two other studies—the Bremer
Study Group Report (commissioned by the Secretary of
State on his own initiative) and the Thomas
Commission Report (mandated by Congress as part of
the 1988-1989 Foreign Relations Authorization Act).
Representative Gerry Sikorski, the Subcommittee’s
Chairman, interpreted those two studies to “disclose[]
major problems of discrimination against . . .
minorities in the Foreign Service.” Underrepresentation
of Women and Minorities in the Foreign Service:
Hearing Before the Subcomm. on the Civil Serv. of the
H. Comm. on Post Office & Civil Serv., 101st Cong. 3
(1989) (1989 Subcomm. Hearing). Those studies, he
concluded, revealed that “management of the U.S.
Foreign Service [was] seriously flawed.” The
Department of State in the 21st Century: Joint Hearing
Before the Subcomm. on Int’l Ops. of the H. Comm. on
Appendix A–6
Foreign Affairs & the Subcomm. on the Civil Serv. of
the H. Comm. on Post Office & Civil Serv., 101st Cong.
6 (1989) (1989 Joint Hearing).
As of 1989, minorities remained underrepresented
in Foreign Service Officer roles. Id. And that was after
years of concerns voiced by Congress and repeated
warnings from the Equal Employment Opportunity
Commission “that the State Department ha[d] not had
an effective . . . plan or program for overcoming the
underrepresentation [of minorities] in the Foreign
Service.” U.S. Gen. Accounting Office, Testimony:
Underrepresentation of Minorities and Women in the
Foreign Service, Statement of Joseph Kelley, Director of
Security and International Relations Issues, National
Security and International Affairs Division, Before the
Subcommittee on Civil Service, Committee on Post
Office and Civil Service, United States House of
Representatives 1 (1989). The Department undertook
various measures in response, including creating a
special hiring path for minorities into the Foreign
Service’s mid- and upper-level ranks—the affirmative
action plan in issue here.
C.
At the time of Shea’s entry into the Foreign
Service, the State Department operated two distinct
programs that enabled applicants to bypass the
Department’s usual preference for internal promotions
and allowed the direct hiring of outside applicants into
mid- and upper-level (FS-01, -02 and -03) positions.
One program, the Career Candidate Program (CCP),
was race-neutral. The other program, the 1990-92
Affirmative Action Plan (1990-92 Plan), targeted
minority applicants.
Appendix A–7
Under the CCP, the Department accepted certain
applications from outside candidates for FS-01, -02,
and -03 positions. But the Department, in accordance
with its general preference for filling vacancies through
internal promotions, could hire an otherwise viable
outside applicant through the CCP only if the
Department issued a “certificate of need” attesting that
no internal candidates could fill that vacancy. The
Department would then consider the outside applicant
consistent with its typical hiring procedures. In the
absence of a certificate of need, no outside candidate
could receive an offer of employment through the CCP.
Under the race-conscious 1990-92 Plan, the
Department provided a special path for minorities
seeking direct placement as outside hires into the
FS-01, -02, and -03 ranks. The 1990-92 Plan gave
one—and only one—advantage to minority applicants:
an automatic waiver of the CCP’s certificate-of-need
requirement for “American Indians, Alaska Native[s],
Asians and Pacific Islanders, Blacks, and Hispanics.”
U.S. Dep’t of State, Foreign Service Mid-Level Hiring
Program Highlights 1 (1989). Apart from the
certificate-of-need waiver at the threshold stage, the
1990-92 Plan granted no benefits to minorities in the
course of the hiring process. That process was rigorous:
The “vast majority” of minority candidates applying
through the 1990-92 Plan “were eliminated from
competition at the preliminary review stage.” Id.
D.
In 2001, Shea filed an administrative grievance
with the State Department. Among other claims, he
argued that he started at a lower pay grade by virtue
of the 1990-92 Plan’s preferential treatment of
minority applicants, infringing his rights under
Appendix A–8
Title VII as well as the equal protection component of
the Due Process Clause of the Fifth Amendment. The
Foreign Service Grievance Board dismissed his
complaint for lack of jurisdiction, and Shea then filed
suit in the United States District Court for the District
of Columbia.
Shea’s case initially traveled back and forth
between the district court and this court on the
question of whether his Title VII and equal protection
claims had been timely filed. (As to the remaining
claims, Shea did not appeal their dismissal.) See Shea
v. Kerry, 961 F. Supp. 2d 17, 22-25 (D.D.C. 2013).
Ultimately, after Congress enacted the Lilly Ledbetter
Fair Pay Act of 2009, Pub. L. No. 111-2, 123 Stat. 5,
the district court found that Shea’s Title VII claims
were timely under the Ledbetter Act but that his equal
protection claims were untimely. See id. at 24, 29 &
n.3.
Proceeding to the merits, the district court granted
summary judgment to the State Department. Id. at 55.
The court first determined that the Supreme Court’s
Title VII affirmative action decisions in Weber, 443
U.S. 193, and Johnson, 480 U.S. 616, controlled the
analysis. Those decisions, the district court explained,
called for application of the three-step burden-shifting
framework articulated by the Court in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). Shea, 961
F. Supp. 2d at 27-29.
At the first step, the district court concluded that
Shea had established a prima facie case of
discrimination in violation of Title VII. Id. at 31-33.
Turning to the second step, the court found that the
Department had proffered evidence that, if accepted as
true, permitted the conclusion that the Department
Appendix A–9
had acted pursuant to a lawful affirmative action plan.
Id. at 33-44. Finally, at the third step, the district court
considered whether Shea had shown that the
affirmative action plan was, in fact, unlawful. The
court rejected Shea’s proffer of lay statistical evidence
to that end, and thus concluded that he had failed to
raise any genuine issue concerning the validity of the
Department’s affirmative action plan. The court
therefore granted summary judgment in favor of the
Department. Id. at 55.
II.
We review de novo the district court’s grant of
summary judgment on Shea’s Title VII claim. Holcomb
v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). Before
addressing the merits of that claim, we first assure
ourselves of Shea’s standing to bring it. Although the
Department raises no challenge to his standing, “it is
well established that the court has an independent
obligation to assure that standing exists, regardless of
whether it is challenged by any of the parties.”
Summers v. Earth Island Inst., 555 U.S. 488, 499
(2009).
To demonstrate his standing, Shea must show,
inter alia, that he suffered an injury in fact that is both
“concrete and particularized” and “actual or imminent,
not conjectural or hypothetical.” Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992) (quotation marks
omitted). In the context of an employment
discrimination claim, a plaintiff may claim an injury in
fact from the purported denial of the ability to compete
on an equal footing against other candidates for a job.
See Ne. Fla. Chapter of the Associated Gen. Contractors
of Am. v. City of Jacksonville, Fla., 508 U.S. 656, 666
(1993); Cerrato v. S.F. Cmty. Coll. Dist., 26 F.3d 968,
Appendix A–10
976 (9th Cir. 1994). Because the injury lies in the
denial of an equal opportunity to compete, not the
denial of the job itself, we do not inquire into the
plaintiff’s qualifications (or lack thereof) when
assessing standing. See Regents of Univ. of Cal. v.
Bakke, 438 U.S. 265, 280-81 & n.14 (1978).
Shea alleges that the 1990-92 Plan denied him the
opportunity to compete on an equal basis by extending
a preference to minority candidates that was
unavailable to him: the ability to gain consideration
for entry to a mid-level position without any certificate
of need. Shea could have sought direct mid-level
placement through the race-neutral CCP program,
however. He did not do so, instead applying only for an
entry-level FS-05 position. There is thus a question
whether Shea suffered an actual or imminent injury as
a result of the 1990-92 Plan, or whether his injury was
merely hypothetical.
The Supreme Court’s decision in Gratz v.
Bollinger, 539 U.S. 244 (2003), found the existence of
standing in parallel circumstances. In Gratz, one of the
plaintiffs, Patrick Hamacher, sought to challenge the
University of Michigan’s consideration of race in its
undergraduate transfer admissions. At the time of the
suit, Hamacher had yet to apply to transfer to
Michigan. Indeed, the Court’s opinion indicated that he
would not do so as long as Michigan’s race-conscious
admissions program remained in place: Hamacher
instead declared that he “intend[ed] to transfer to the
University of Michigan when [it] cease[d] the use of
race as an admissions preference.” Id. at 261 (emphasis
added). The Supreme Court sua sponte questioned
Hamacher’s standing to bring his challenge, ultimately
concluding that he had shown an injury in fact. The
Appendix A–11
Court reasoned that, because of Hamacher’s stated
intent to transfer should Michigan change its policy, he
had established standing. Id. at 261-62.
Gratz controls our inquiry. Like Hamacher, Shea
alleges that he possessed an intent to apply to the
position in question, i.e., a mid-level position. Pl.’s
Decl. in Supp. of Pl.’s Surreply at 3-4 (filed Dec. 14,
2012). If the mid-levels had been open to him for equal
consideration on a race-neutral footing, he would have
applied to the mid-levels instead of the entry-level.
Thus, like Hamacher, Shea stood “able and ready to
apply [to the mid-levels] should the [State Department]
cease to use race” as a factor in mid-level hiring. Id.
(quotation marks omitted). By choosing not to apply
because the Department was considering race during
the time of his application process, Shea did exactly
what Hamacher alleged he would do: refuse to apply
through the raceconscious program unless and until
that program’s use of race-conscious preferences
ceased. As a result, Shea, like Hamacher, has standing
to challenge the Department’s affirmative action plan
notwithstanding his failure to apply for a mid-level
position through the CCP program.
III.
Title VII prohibits an employer from
“discriminat[ing] against any individual with respect
to his compensation, terms, conditions, or privileges of
employment, because of” inter alia, “such individual’s
race.” 42 U.S.C. § 2000e-2(a)(1). The statute protects
both minorities and nonminorities—the latter against
“reverse discrimination.” See Mastro v. Potomac Elec.
Power Co., 447 F.3d 843, 851 (D.C. Cir. 2006). Here,
Shea alleges that the State Department’s 1990-92 Plan
Appendix A–12
constituted impermissible reverse discrimination in
violation of Title VII.
A.
At the outset, we consider the governing
framework for resolving Shea’s reverse-discrimination
claim. For nearly thirty years, we have examined
Title VII challenges to affirmative action programs
under the standards set forth by the Supreme Court in
United Steelworkers of America, AFLCIO-CLC v.
Weber, 443 U.S. 193 (1979), and Johnson v.
Transportation Agency, Santa Clara County,
California, 480 U.S. 616 (1987). Shea argues that those
standards have been displaced by the Supreme Court’s
decision in Ricci v. DeStefano, 557 U.S. 557 (2009),
such that Johnson and Weber no longer guide the
analysis of reverse-discrimination claims under
Title VII. We are unpersuaded.
1.
In Weber, the Supreme Court for the first time
considered a Title VII challenge to an employer’s
affirmative action plan. As of 1974, Kaiser Aluminum
& Chemical Corp. had an “almost exclusively white
craftwork force[],” with black employees making up
only 1.83% of the company’s skilled craftworkers at its
Gramercy, Louisiana, plant, even though the workforce
in the area surrounding that plant was roughly 39%
black. Weber, 443 U.S. at 198-99. As part of a
collective-bargaining agreement, Kaiser promised to
implement “an affirmative action plan designed to
eliminate [that] conspicuous racial imbalance[].” Id.
at 198. The company established job-training programs
to teach both black and white employees the necessary
skills for promotion to craftworker positions. Id.
Appendix A–13
at 198-99. Selection of trainees for the program would
be made on the basis of seniority, but “with the proviso
that at least 50% of the new trainees were to be black
until the percentage of black skilled craftworkers in
the Gramercy plant approximated the percentage of
blacks in the local labor force.” Id. at 199. A white
unskilled production worker from the plant sued,
arguing that Title VII prohibited all race-conscious
employer actions. Id. at 199, 201.
The Supreme Court disagreed and upheld Kaiser’s
affirmative action plan. The Court declined to “define
in detail the line of demarcation between permissible
and impermissible affirmative action plans,” but
concluded that Kaiser’s plan fell “on the permissible
side of the line.” Id. at 208. The trainee-selection plan,
the Court approvingly noted, aimed to “break down old
patterns of racial segregation and hierarchy” and “open
employment opportunities for [black workers] in
occupations which have been traditionally closed to
them.” Id. (quotation marks omitted). The Court set
out the considerations that caused it to uphold the
company’s plan as follows:
[T]he plan does not unnecessarily trammel
the interests of the white employees. The
plan does not require the discharge of white
workers and their replacement with new
black hirees. Nor does the plan create an
absolute bar to the advancement of white
employees; half of those trained in the
program will be white. Moreover, the plan is
a temporary measure; it is not intended to
maintain racial balance, but simply to
eliminate a manifest racial imbalance.
Preferential selection of craft trainees at the
Appendix A–14
Gramercy plant will end as soon as the
percentage of black skilled craftworkers in
the Gramercy plant approximates the
percentage of blacks in the local labor force.
Id. at 208-09 (citation omitted). For those reasons, the
plan fell “within the area of discretion left by Title VII
to the private sector voluntarily to adopt affirmative
action plans designed to eliminate conspicuous racial
imbalance in traditionally segregated job categories.”
Id. at 209.
2.
Nine years later, in Johnson, the Court again
rejected a Title VII challenge to an employer’s
affirmative action program. The case arose from the
efforts of Santa Clara County, California, to increase
diversity in portions of its workforce. The County
sought to address a striking gender imbalance in
certain positions: Women constituted 36.4% of the
labor market in the area, but “none of [the County’s]
238 Skilled Craft Worker positions was held by a
woman.” Johnson, 480 U.S. at 621. The County
implemented a voluntary affirmative action plan with
a stated “long-term goal” to “attain a work force whose
composition reflected the proportion of minorities and
women in the area labor force.” Id. at 621-22. The
County’s plan “authorized the consideration of
ethnicity or sex as a factor when evaluating qualified
candidates for jobs in which members of such groups
were poorly represented,” but it did not set aside a
specific number of hiring slots for women or racial
minorities. Id. at 622.
In upholding the County’s plan, the Court
determined that the analysis should follow the
Appendix A–15
three-step burden-shifting framework set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Under that framework:
Once a plaintiff establishes a prima facie case
that race or sex has been taken into account
in an employer’s employment decision [step
one], the burden shifts to the employer to
articulate a nondiscriminatory rationale for
its decision [step two]. The existence of an
affirmative action plan provides such a
rationale. If such a plan is articulated as the
basis for the employer’s decision, the burden
shifts to the plaintiff to prove that the
employer’s justification is pretextual and the
plan is invalid [step three].
Johnson, 480 U.S. at 626. Application of that
framework, the Johnson Court emphasized, “does not
mean . . . that reliance on an affirmative action plan is
to be treated as an affirmative defense requiring the
employer to carry the burden of proving the validity of
the plan. The burden of proving its invalidity remains
on the plaintiff.” Id. at 627.
The Johnson Court explained that it would “be
guided by [its] decision in Weber.” Id. In Weber, the
Court noted, it had blessed an affirmative action plan
that (i) sought to “eliminate manifest racial imbalances
in traditionally segregated job categories”; and (ii) did
not “unnecessarily trammel the interests of white
employees.” Id. at 628-30. The Court found the
requisite “manifest imbalance” to exist in Johnson in
light of the complete absence of women in the positions
in question. Id. at 636. The Court further determined
that the County’s plan did not “unnecessarily
trammel[] the rights of male employees” based on a
Appendix A–16
number of factors (without ascribing weight or rank to
any single one). Id. at 637-40. In particular, the plan
imposed “goals,” not “quotas.” Id. at 638. The plan
worked such that “[n]o persons [were] automatically
excluded from consideration; all [were] able to have
their qualifications weighed against those of other
applicants,” with gender considered only as a “plus.”
Id. The plan did not abrogate any “absolute
entitlement” of male employees, as it operated only in
the context of promotions, the denial of which would
“unsettle[] no legitimate, firmly rooted expectation[s].”
Id. And the plan was temporary, in that it “was
intended to attain a balanced work force, not to
maintain one.” Id. at 639.
For nearly three decades, Johnson has guided
courts—including ours—in the analysis of Title VII
claims alleging unlawful reverse discrimination. See,
e.g., Hammon v. Barry (Hammon II), 826 F.2d 73 (D.C.
Cir. 1987); see also Petitti v. New England Tel. & Tel.
Co., 909 F.2d 28 (1st Cir. 1990); Taxman v. Bd. of
Educ., 91 F.3d 1547 (3d Cir. 1996) (en banc); Smith v.
Va. Commonwealth Univ., 84 F.3d 672 (4th Cir. 1996)
(en banc); Edwards v. City of Houston, 37 F.3d 1097
(5th Cir. 1994); Janowiak v. Corporate City of S. Bend,
836 F.2d 1034 (7th Cir. 1984); Tharp v. Iowa Dep’t of
Corr., 68 F.3d 223 (8th Cir. 1995); Doe v. Kamehameha
Sch./Bernice Pauahi Bishop Estate, 470 F.3d 827 (9th
Cir. 2006) (en banc); Cunico v. Pueblo Sch. Dist. No. 60,
917 F.2d 431 (10th Cir. 1990); In re Birmingham
Reverse Discrimination Emp’t Litig., 20 F.3d 1525
(11th Cir. 1994).
Appendix A–17
3.
In 2009, the Supreme Court decided Ricci v.
DeStefano, 557 U.S. 557. In Ricci, the Court considered
the City of New Haven’s actions in the aftermath of the
City’s administration of a firefighter promotional
examination. The results of the exam showed a
statistical racial disparity: White candidates had
outperformed minority candidates. Id. at 562. Some
firefighters threatened to bring a discrimination
lawsuit if the City relied on the test in making
promotions. Id. The City responded by throwing out
the test results. A group of white and Hispanic
firefighters sued the City under Title VII, claiming
that, by discarding the test, the City had engaged in
unlawful reverse discrimination against them. Id.
at 562-63.
The Supreme Court ruled in the firefighters’ favor.
The Court understood that the City’s “objective” in
discarding the tests was to “avoid[] disparate-impact
liability” under Title VII. Id. at 579. But the Court
concluded that, by rejecting the results of the
promotional test “because of the statistical disparity
based on race,” the City had engaged in “express,
race-based decisionmaking.” Id. The Court held that
“racebased action like the City’s in this case is
impermissible under Title VII unless the employer can
demonstrate a strong basis in evidence that, had it not
taken the action, it would have been liable under”
Title VII’s disparate-impact prohibition. Id. at 563; see
id. at 585. That is, the Court held that the City could
not invalidate the test results based on the race of the
highest scorers for the asserted purpose of avoiding a
disparate-impact lawsuit, unless the City had a strong
basis in evidence to believe that it would be found
Appendix A–18
liable in such a suit. The City could not meet that
burden. Id. at 592.
Shea argues that Ricci upends Johnson and Weber
such that those earlier decisions no longer guide our
analysis here. Under Johnson and Weber, we would
first assess the sufficiency of Shea’s prima facie case,
then turn to the State Department’s proffer of a valid
affirmative action plan, and finally examine Shea’s
efforts to demonstrate the invalidity of that plan. See
Johnson, 480 U.S. at 626. Throughout, Shea would
retain the burden of proving the invalidity of the
Department’s 1990-92 Plan. Id. at 627. Ricci changed
all of this, Shea submits: After Ricci, Shea argues, we
must jettison Johnson and Weber’s framework and
instead ask whether the State Department can show “a
strong basis in evidence that, had it not [instituted an
affirmative action plan], it would have been liable” for
discrimination under Title VII. Ricci, 557 U.S. at 563
(emphasis added). And, if the Department proves
unable to put forth the requisite “strong basis in
evidence” in support of that showing, Shea contends,
the Department would be liable under Title VII for
impermissible reverse discrimination.
The Department initially argues that Shea
forfeited any argument based on Ricci by failing to
present that argument to the district court. We
disagree. Although forfeiture principles apply to new
arguments raised for the first time on appeal, see
Potter v. District of Columbia, 558 F.3d 542, 547 (D.C.
Cir. 2009), Shea’s argument has been consistent
throughout the litigation: The Department’s 1990-92
Plan impermissibly discriminated against him in
violation of Title VII. On appeal, Shea enjoys a
measure of latitude to elaborate on his theory in
Appendix A–19
service of the same argument. His reliance on Ricci for
the first time on appeal lies within that latitude.
Moreover, although Shea did not press a Ricci-based
argument before the district court, the district court
invoked Ricci on its own, observing that “nothing in
Ricci directly overturns or modifies Johnson, at least
as it applies to this case.” Shea, 961 F. Supp. 2d at 54
n.17. Shea is permitted to respond on appeal by
explaining why he thinks Ricci governs this case. See
Citizens United v. Fed. Election Comm’n, 558 U.S. 310,
330 (2010).
Shea’s argument based on Ricci fails on the
merits, however. Johnson and Weber are directly
applicable to this case. They set out the framework for
“evaluating the compliance of an affirmative action
plan with Title VII’s prohibition on discrimination,”
Johnson, 480 U.S. at 640, the precise question in issue
here. Those decisions unquestionably would control our
analysis unless a subsequent decision dictates
otherwise. Ricci is not such a decision. In reaching that
conclusion, we draw guidance from the Supreme
Court’s admonition against concluding that its “more
recent cases have, by implication, overruled an earlier
precedent.” Agostini v. Felton, 521 U.S. 203, 237 (1997).
Rather, if “a precedent of [the Supreme] Court has
direct application in a case, yet appears to rest on
reasons rejected in some other line of decisions, the
Court of Appeals should follow the case which directly
controls, leaving to [the] Court the prerogative of
overruling its own decisions.” Id.
Here, Johnson and Weber have “direct
application,” and we have no occasion or cause to
conclude that Ricci, “by implication,” overruled those
decisions. Id. Indeed, Ricci does not mention or even
Appendix A–20
cite—much less discuss—Johnson and Weber. That is
understandable, as Ricci, by its own description,
addressed a particular situation not in issue here. Cf.
Ricci, 557 U.S. at 626 (Ginsburg, J., dissenting)
(“[Ricci] does not involve affirmative action.”). In Ricci,
the Court’s “analysis beg[an] with this premise: The
City’s actions would violate the disparate-treatment
prohibition of Title VII absent some valid defense.” Id.
at 579. The inquiry prescribed by Johnson and Weber,
by contrast, pertains to assessing whether there is a
violation of Title VII’s disparate-treatment prohibition
in the first place, the same question we address here.
The specific question addressed in Ricci was
whether, even though the City’s action in discarding
the test results was assumed to violate Title VII’s
disparate-treatment prohibition, that action could be
justified based on a particular objective asserted by the
City: avoiding liability in a Title VII disparate-impact
lawsuit. The Court expressly framed its holding by
reference to actions taken for that particular purpose:
We hold only that, under Title VII, before an
employer can engage in intentional
discrimination for the asserted purpose of
avoiding or remedying an unintentional
disparate impact, the employer must have a
strong basis in evidence to believe it will be
subject to disparate-impact liability if it fails
to take the race-conscious, discriminatory
action.
Id.; see id. at 580 (“We consider, therefore, whether the
purpose to avoid disparate-impact liability excuses
what otherwise would be prohibited disparatetreatment discrimination.”) (emphasis added).
Appendix A–21
The employers in Johnson and Weber did not
modify the outcomes of personnel processes for the
asserted purpose of avoiding disparate-impact liability
under Title VII. Nor did the State Department here.
The Department, like the employers in Johnson and
Weber, instead acted to “expand[] job opportunities for
minorities and women,” Johnson, 480 U.S. at 622, and
to “eliminate traditional patterns of racial
segregation,” Weber, 443 U.S. at 201; see id. at 209 &
n.9. Ricci does not purport to reach the Department’s
actions in pursuit of those purposes. Weber and
Johnson therefore still control. The only other court of
appeals of which we are aware to have addressed the
interaction between Ricci and the Johnson-Weber
framework reached the same conclusion. See United
States v. Brennan, 650 F.3d 65, 102-04 (2d Cir. 2011).
IV.
Under the framework established by Johnson and
Weber, we ask first if Shea establishes a prima facie
case of discrimination. Second, we examine whether
the State Department can articulate a
nondiscriminatory reason—in this case, a valid
affirmative action plan—for its actions. Finally, we
assess whether Shea carries his burden to prove that
the Department’s plan is invalid. The district court
found that Shea and the Department made the
requisite showings at the first and second steps,
respectively. The court then found Shea to falter at the
third step and therefore granted summary judgment in
favor of the Department. We agree at each step.
A.
We first address whether Shea has made out a
prima facie case of reverse discrimination in violation
Appendix A–22
of Title VII. At the outset, we note that neither party
has addressed the potential implications of our decision
in Brady v. Office of Sergeant at Arms, 520 F.3d 490
(D.C. Cir. 2008), for Johnson’s direction to assess
whether the “plaintiff establishes a prima facie case,”
Johnson, 480 U.S. at 626. Brady explained that, when
“an employee has suffered an adverse employment
action and an employer has asserted a legitimate,
non-discriminatory reason for the decision, the district
court need not—and should not—decide whether the
plaintiff actually made out a prima facie case.” 520
F.3d at 494. Rather, “the district court must resolve
one central question: Has the employee produced
sufficient evidence for a reasonable jury to find that
the employer’s asserted non-discriminatory reason was
not the actual reason and that the employer
intentionally discriminated against the employee on
the basis of” a prohibited characteristic? Id. We have
since invoked Brady in the context of a
reverse-discrimination claim. See Ginger v. District of
Columbia, 527 F.3d 1340, 1344 (D.C. Cir. 2008).
We have not, however, specifically applied Brady
in the context of a reverse-discrimination suit
challenging the validity of an employer’s affirmative
action plan under Title VII. In that domain, Johnson
has long set forth the governing approach. Because no
party on appeal argues that Brady should alter that
framework, and because the existence of a prima facie
case is readily resolved in this case in Shea’s favor, we
leave for another day the resolution of the interaction
between Brady and Johnson. We therefore proceed on
the assumption that Johnson’s framework—including
its call for examining the establishment of a prima
facie case—is controlling for our purposes.
Appendix A–23
Here, the State Department contests Shea’s
establishment of a prima facie case in only one respect.
As part of the showing necessary to make out a prima
facie case of discrimination (or reverse discrimination)
in violation of Title VII, a plaintiff must establish that
he has been subjected to an adverse employment
action. George v. Leavitt, 407 F.3d 405, 412 (D.C. Cir.
2005). The Department argues on appeal, for the first
time in this case’s long history, that Shea suffered no
adverse employment action from his hiring at an
entry-level (rather than mid-level) position because he
never applied for direct mid-level placement, either
through the 1990-92 Plan or through the race-neutral
CCP. We do not reach the merits of that argument
because the Department forfeited it by failing to raise
it until this late stage.
Although “we may affirm a judgment on any
ground that the record supports and that the opposing
party had a fair opportunity to address,” Jones v.
Bernanke, 557 F.3d 670, 676 (D.C. Cir. 2009) (internal
citation and quotation marks omitted), an argument
“never made below is waived on appeal,” id. (citing
Marymount Hosp., Inc. v. Shalala, 19 F.3d 658 (D.C.
Cir. 1994)). The Department at no point in the previous
fourteen years of litigating this case contended that
Shea’s failure to apply for a mid-level position could
affect his establishment of a prima facie case. It has
instead fought Shea’s prima facie showing on other
grounds. “[A]bsent exceptional circumstances not
present here, it is not our practice to entertain issues
first raised on appeal.” Marymount Hosp., 19 F.3d
at 663 (quoting Roosevelt v. E.I. Du Pont de Nemours
& Co., 958 F.2d 416, 419 & n.5 (D.C. Cir. 1992))
(quotation marks omitted). We adhere to that practice
today. Because the Department has forfeited any
Appendix A–24
argument that Shea suffered no adverse employment
action, and because the Department otherwise does not
challenge his establishment of a prima facie case on
appeal, we agree with the district court that Shea has
made that showing.
B.
At the second step of Johnson’s framework, the
Department must “articulate a nondiscriminatory
rationale for its decision.” Johnson, 480 U.S. at 626.
Johnson observes that “[t]he existence of an
affirmative action plan provides such a rationale.” Id.
We do not understand Johnson to mean, however, that
an employer establishes a legitimate,
nondiscriminatory reason for its decision merely by
showing that it acted pursuant to an affirmative action
plan. See Hill v. Ross, 183 F.3d 586, 590 (7th Cir.
1999).
Rather, the Johnson framework maps onto
McDonnell Douglas’s three steps. Johnson, 480 U.S.
at 626-27. To satisfy its burden of production at the
second McDonnell Douglas step, the State Department
must “introduce evidence which, taken as true, would
permit the conclusion that there was a
nondiscriminatory reason for” its actions. St. Mary’s
Honor Ctr. v. Hicks, 509 U.S. 502, 509 (1993)
(emphasis omitted). And while a valid affirmative
action plan is considered nondiscriminatory, see Parker
v. Balt. & Ohio R.R. Co., 652 F.2d 1012, 1017 n.9 (D.C.
Cir. 1981), an invalid affirmative action plan is
discriminatory, see Taxman, 91 F.3d at 1567. As a
result, the Department needs to produce “evidence
which, taken as true, would permit the conclusion”
that it acted for a “nondiscriminatory reason,” i.e.,
pursuant to a valid affirmative action plan. Hicks, 509
Appendix A–25
U.S. at 509 (emphasis omitted); see Shea, 961 F. Supp.
2d at 33-34.
We have explained that, under Johnson and
Weber, a valid affirmative action plan should satisfy
two general conditions. First, a valid plan rests on an
adequate factual predicate justifying its adoption, such
as a “manifest imbalance” in a “traditionally
segregated job categor[y].” Johnson, 480 U.S. at 631;
see Hammon II, 826 F.2d at 74-75. Second, a valid plan
refrains from “unnecessarily trammel[ing] the rights of
[white] employees.” Johnson, 480 U.S. at 637-38; see
Hammon II, 826 F.2d at 81. We take up those
considerations in order.
1.
The district court concluded that the Department
adequately grounded its 1990-92 Plan in evidence of a
manifest imbalance in a traditionally segregated job
category. See Shea, 961 F. Supp. 2d at 34-39. We agree.
a.
Ascertaining the existence of a “manifest
imbalance” is a “fact-specific task” in a “sensitive and
delicate area.” Hammon II, 826 F.2d at 75. One method
that may be used to demonstrate such an
imbalance—and the one relied on by the State
Department here—entails a showing of statistical
disparities between the racial makeup of the
employer’s workforce and that of a “comparator
population.” If the positions in question “require no
special expertise,” the comparator population would be
“‘the area labor market or general population.’” Id.
(citation omitted) (quoting Johnson, 480 U.S. at 632).
But for “jobs that require special training,” the
‘“comparison should be with those in the labor force
Appendix A–26
who possess the relevant qualifications.’” Id. (citation
omitted) (quoting Johnson, 480 U.S. at 632).
When the Department adopted the 1990-92 Plan,
the agency had before it two analyses comparing its
own workforce with the labor pool possessing the
relevant qualifications: (i) the 1989 GAO Report, and
(ii) a formal analysis conducted by the Department
itself when promulgating the 1990-92 Plan. The
Department points to those two statistical studies as
its principal evidence of a manifest imbalance between
minority representation in the Foreign Service and the
comparator population.
Shea contends that the Department cannot rely on
either of those studies. He argues that the 1990-92
Plan amounted only to a continuation of a preexisting
affirmative action plan in place from 1987-89, and that
the 1990-92 Plan thus was actually adopted in 1987.
Shea submits that any data on which the Department
purports to justify any affirmative action plan must
have been in its possession when it promulgated the
plan—which, by Shea’s account, would have been in
1987, before either the 1989 GAO Report or the
1990-92 Plan’s analysis. Consequently, Shea argues,
the State Department is foreclosed from invoking
either study as a justification for its actions.
We assume arguendo the correctness of Shea’s
premise that the Department cannot justify its
race-conscious actions by reference to post hoc data
collection. Even so, Shea errs in contending that the
Department cannot rely on the 1989 GAO Report or
the findings contained in the 1990-92 Plan to justify
the Plan. The district court concluded that the
Department’s 1987-89 affirmative action efforts and
the 1990-92 Plan in fact were two different plans. See
Appendix A–27
Shea, 961 F. Supp. 2d at 30. We would tend to agree.
But even if otherwise, the 1990-92 Plan at the very
least amounted to a review and overhaul of the
Department’s affirmative action efforts. See, e.g., U.S.
Dep’t of State, Multi-Year Plan, FY 1990-92 at 51 (rev.
version Apr. 30, 1991) (1990-92 Plan Document)
(assembling new diversity statistics for purposes of the
1990-92 Plan); id. at 61 (noting that the 1987-89 plan
“has been refined . . . to define better the type of
candidate to be recruited” (emphasis added)). “When a
program that has been reauthorized is challenged, all
evidence available to the [decisionmaker] prior to
reauthorization must be considered in assessing” the
program’s legality. Rothe Dev. Corp. v. U.S. Dep’t of
Def., 262 F.3d 1306, 1328 (Fed. Cir. 2001). Accordingly,
even if the 1990-92 Plan amounted to a reauthorization
of the Department’s 1987-89 affirmative action efforts,
and even if the Department cannot justify its actions
based on post hoc data, the 1989 GAO Report and the
findings contained in the 1990-92 Plan are a proper
evidentiary proffer.
The version of the 1990-92 Plan in our record
contains the Department’s employment data from 1989
and 1990. As the 1989 data represent the data in the
State Department’s possession both at the time it
promulgated the 1990-92 Plan and at the time Shea
applied to the Foreign Service, we use that data
(though we note that the minor differences between the
1989 and 1990 data would have no impact on our
conclusions today). The 1990-92 Plan’s findings showed
improvement in the Foreign Service’s diversity from
the time of the 1989 GAO Report. The combined FS-02
and -03 levels, for instance, showed
underrepresentation only for Native Americans and
Alaskans. See 1990-92 Plan Document at 46a; 47a. For
Appendix A–28
other minority populations at the combined FS-02 and
-03 positions, there were no imbalances, manifest or
otherwise. As a result, Shea contends, the Department
cannot justify the 1990-92 Plan by claiming that it
addressed manifest imbalances for all minority groups
at those levels.
The Department initially asserts that the 1990-92
Plan established “goals” only for groups specifically
shown in the data to be underrepresented. We take
this to mean, for example, that, at the combined FS-02
and -03 levels, “goals” would have been set only for
Native Americans and Alaskans, and not for other
minority populations. If the “goals” operated such that
only members of the underrepresented minority groups
received favorable treatment in the application process
relative to Shea, the Department’s argument would
have force. But the Department provides no
information about how the “goals” would have worked
in practice. And we find no description in the record.
All that we can glean from the record is that all
minority applicants received the main benefit available
under the 1990-92 Plan—waiver of the certificateof-need requirement for entry into the FS-01, -02, and
-03 levels.
The Department’s defense of the 1990-92 Plan
stands on stronger footing, however, with regard to
more senior-level positions. Looking up the ranks from
the FS-02 and -03 levels, the Department identified a
more across-the-board manifest imbalance. The
Department first points to the FS-01 level. According
to the 1990-92 Plan data, all minority groups were
underrepresented at the FS-01 level at the time of the
plan’s promulgation. To achieve full representation,
the number of black Officers at that level would have
Appendix A–29
needed to increase by 62%, Hispanics by 14%, Native
Americans and Alaskans by 256%, and Asians and
Pacific Islanders by 47%. See 1990-92 Plan Document
at 46a; 47a.
The Department also points to the ranks of the
SFS. The 1990-92 Plan, so far as we can tell, contains
no specific data on diversity in the SFS. Accordingly,
we look to the SFS findings from the 1989 GAO Report.
Those findings show underrepresentation of all
minority groups at the SFS level. And the imbalances
are manifest: To achieve full representation, the
number of black Officers in the SFS would have needed
to increase by 154%, Hispanics by 163%, Asians and
Pacific Islanders by 700%, and, for Native Americans
and Alaskans, by an undefined percentage (because the
Foreign Service had no SFS Officer of Native American
or Alaskan origin). See 1989 GAO Report at 17.
b.
Johnson speaks in terms not just of any manifest
imbalance, but of a manifest imbalance in a
traditionally segregated job category. 480 U.S. at 631.
As the Court explained, the “requirement that the
manifest imbalance relate to a traditionally segregated
job category provides assurance” that “race will be
taken into account in a manner consistent with
Title VII’s purpose of eliminating the effects of
employment discrimination.” Id. at 632 (quotation
marks omitted). That approach guards against
licensing an employer to seek proportional
representation purely for its own sake. The
Department must make a showing that, if taken as
true, would permit the conclusion that the manifest
imbalance resulted from a “predicate of discrimination”
rather than from benign forces. Hammon II, 826 F.2d
Appendix A–30
at 74-75, 80-81. We find that the Department has done
so.
First, the substantial imbalances at the SFS level
themselves indicate that discriminatory practices may
well have been afoot. While a significant disparity is
not itself dispositive, “ranks [that are]
overwhelming[ly] white” are “a powerful present-day
demonstration of a prior regime of discrimination.”
Hammon v. Barry (Hammon I), 813 F.2d 412, 427
(D.C. Cir. 1987) (referring to Weber). Here, the
disparity between white and non-white SFS Officers
qualifies as overwhelming. Of the 655 serving SFS
Officers counted by the 1989 GAO Report, 631 were
white. See 1989 GAO Report at 17. “[F]ine tuning of
the[se] statistics could not have obscured the glaring
absence of minority” officers. Int’l Bhd. of Teamsters v.
United States, 431 U.S. 324, 342 n.23 (1977).
Second, testimony before Congress concerning the
1989 GAO Report, the Bremer Study Group Report,
and the Thomas Commission Report provided Congress
with evidence of pervasive historical discrimination in
the Foreign Service tracing as far back as the 1960s.
For example, one witness testified that, when he
“entered on duty in State in late 1965 . . . [he] had [his]
first experience with discrimination, aside from what
[he] had experienced while stationed in the South,” and
further noted that “[m]inorities have been
underrepresented purposefully” within the
Department. 1989 Subcomm. Hearing at 33, 39.
Another witness, focusing on gender discrimination at
the Department, explained that, while “[i]nstances of
blatant sexism and discrimination have declined, . . .
some do still take place,” and “a simple glance at the
statistics contained in the [1989 GAO Report] . . . will
Appendix A–31
confirm the continued existence of a problem.” Id.
at 42. The former EEOC Commissioner offered his
assessment that “[t]he State Department wants to hire
what I call the mythical American, the 5'10,” 160
pound WASP man in perfect physical and mental
health.” J.A. 342. And the Department’s Deputy
Assistant for Equal Opportunity and Civil Rights
provided testimony that, around the world, he had
“encountered complaints of discrimination from
[State’s] employees and criticisms from foreigners for
that same discrimination as exhibited by our
predominantly white male diplomatic corps.” Id. at 13.
To the House Subcommittee on the Civil Service,
such testimony likely came as no surprise. While the
record before us does not contain the underlying
materials, Representative Sikorski, the Subcommittee
Chairman, stated his belief that those reports
confirmed a State Department inadequately concerned
with diversity. Previous investigations and hearings by
his subcommittee, he stated, “documented serious
instances of discriminatory treatment by the Foreign
Service of women, minorities, and people with
handicaps.” 1989 Joint Hearing at 10. His testimony
included the revelation that “more than 240 Equal
Employment Opportunity (EEO) cases” had been filed
and indications that previous efforts to diversify the
Foreign Service championed by the Secretary of State
were “largely ignored by the Department.” Id.
Moreover, he noted, the Department had “been
repeatedly cited by the [EEOC] for submitting deficient
[diversity] reports.” Id. The 1989 GAO Report noted
that, despite repeated criticism including suggestions
of bias, the State Department never “conducted
analyses of possible impediments to equal employment
opportunity.” 1989 GAO Report at 4.
Appendix A–32
This case is therefore a far cry from our decisions
in Hammon I and II, in which we determined that the
District of Columbia had failed to demonstrate the
predicate of discrimination necessary to justify an
affirmative action program for its hiring of firefighters.
The challenged plan purportedly addressed the
District’s history of discriminatory hiring against black
applicants. But during the relevant historical period,
blacks made up an average of 41.8% of the firefighters
hired each year, Hammon I, 813 F.2d at 427, and, at
the time of the challenge, 37% of the firefighting
workforce overall, Hammon II, 826 F.2d at 77. The
proper comparator pool was 29.3% black. Hammon I,
813 F.2d at 428. In light of those figures, the District
“steadfastly and persuasively protested its innocence
of any discriminatory activity,” and we agreed. Id.
at 427.
Here, by contrast, evidence identified by the
Department would permit the conclusion that there
had been a past practice of discrimination with
continuing effects through the early 1990s. We
therefore agree with the district court that the
Department made an adequate evidentiary proffer that
the 1990-92 Plan “served to remedy the lingering
effects of State’s past discrimination.” Shea, 961 F.
Supp. 2d at 39.
2.
Having shown the necessary factual predicate for
the 1990-92 Plan in the form of a manifest imbalance
in a traditionally segregated job category, the
Department faces one additional requirement: The
plan must not have unnecessarily trammeled the
rights of white applicants. Johnson, 480 U.S. at 637-38;
Hammon II, 826 F.2d at 81. We, like the district court,
Appendix A–33
conclude that the Department has made an adequate
showing in this regard.
a.
There is “no precise formula for determining
whether an affirmative action plan unnecessarily
trammels the rights of non-beneficiaries.” In re
Birmingham Reverse Discrimination Emp’t Litig., 20
F.3d at 1541. Rather, a number of considerations
inform the inquiry. See Johnson, 480 U.S. at 637-40;
Weber, 443 U.S. at 208-09; Hammon II, 826 F.2d at 81.
Those considerations weigh in favor of the 1990-92
Plan’s validity.
First, the type of affirmative action plan matters.
Affirmative action in hiring generally poses less of a
concern than affirmative action in layoffs. See Johnson,
480 U.S. at 638. Hiring decisions upset settled
expectations to a lesser degree (because an applicant
has no absolute entitlement to a job), and they affect a
more diffuse group (all potential applicants) than do
layoffs, which target specific employees. See United
States v. Paradise, 480 U.S. 149, 183 (1987) (plurality
opinion) (“Denial of a future employment
opportunity . . . is not as intrusive as loss of an existing
job.”) (quotation marks omitted); cf. Firefighters Local
Union No. 1784 v. Stotts, 467 U.S. 561, 578-79 (1984).
Here, the 1990-92 Plan awarded benefits to minority
candidates only in the hiring process, and even then,
only at the very initial stage.
Second, the degree of benefit, or “plus,” bestowed
by the affirmative action plan can make a difference.
Affirmative action resulting in the hiring only of
qualified candidates more easily survives scrutiny than
affirmative action resulting in the hiring of unqualified
Appendix A–34
beneficiaries. See Johnson, 480 U.S. at 637-38. In this
case, the Department’s 1990-92 Plan provided for
hiring only of qualified candidates: Minority applicants
considered through the 1990-92 Plan underwent the
same rigorous application path as did white candidates
considered through the race-neutral CCP, with the
only difference coming in the form of the
certificate-of-need waiver at the threshold.
Third, the goals of the affirmative action plan
affect the inquiry. A plan that seeks to achieve full
representation for the particular purpose of remedying
past discrimination will generally be shorter in
duration than one that pursues proportional diversity
for its own sake. When a plan pursues only the former
goal, it presumably would cease to operate once full
representation is achieved. And the shorter the time
period for which a plan is in operation, the less it could
be said adversely to affect non-beneficiaries. In Weber,
for instance, the Court approvingly observed that the
plan it upheld was “not intended to maintain racial
balance, but simply to eliminate a manifest racial
imbalance.” 443 U.S. at 208; see Johnson, 480 U.S.
at 639-40. Here, the 1990-92 Plan sought to attain
more proportional representation, not to maintain it in
perpetuity. Indeed, the 1990-92 Plan ceased to operate
in 1993 and has not been replaced. Shea, 961 F. Supp.
2d at 41-42.
Fourth, the extent to which the challenged plan
limits opportunities for advancement by
non-beneficiaries is a relevant consideration. In both
Johnson and Weber, the Court observed that the plan
in question created no “absolute bar” to the
advancement of non-beneficiaries. Johnson, 480 U.S.
at 637-38; Weber, 443 U.S. at 208. Here, Shea makes
Appendix A–35
no argument that the 1990-92 Plan engendered any
“absolute bar” to the advancement of non-minorities in
the Foreign Service ranks. Non-minority candidates
from outside the agency could apply directly to the
mid-level ranks through the race-neutral CCP, and
internal white candidates could—and did—gain
promotion to mid-level positions from the Foreign
Service entry-level ranks.
b.
Our court has understood the need to avoid
“unnecessarily” trammeling the rights of non-minority
candidates to indicate that a challenged affirmative
action plan generally must be “tailored to fit the
violation” sought to be addressed. Hammon II, 826
F.2d at 74; see id. at 81. Here, the 1990-92 Plan
granted a certificate-of-need waiver to candidates
applying to the FS-01, -02, and -03 levels. The
Department’s identified manifest imbalances, however,
occurred at only the more senior levels. Why bestow
benefits at the FS-02 and -03 levels if the manifest
imbalances sought to be addressed existed only at more
senior positions? To do so, Shea contends, means that
the 1990-92 Plan was so overinclusive as to
unnecessarily trammel the rights of white applicants
at the FS-02 and -03 levels.
The Department submits that there is a sound
explanation for targeting the FS-02 and -03 levels to
address an imbalance at more senior levels. The
1990-92 Plan satisfies the tailoring requirement, the
Department explains, because the FS-02 and -03 levels
serve as the training grounds for learning the skills
necessary to perform at the SFS and FS-01 levels. We
agree.
Appendix A–36
The plan upheld in Weber is instructive. The
employer in Weber aimed to remedy the manifest
imbalance in its ranks of skilled workers: a mere
1.83% of its skilled workers were black, while the labor
force in the surrounding area was 39% black. 443 U.S.
at 198-99. To address the identified imbalance in its
skilled workforce, however, the employer could not
simply hire laborers lacking the requisite skills.
Rather, it needed to hire laborers after they had
acquired those skills. The employer established a
training program to tackle that problem, stipulating
that 50% of all employees entering the training
program would be black until the percentage of black
skilled workers in its workforce approximated the
percentage in the local labor force. See id. at 199.
Weber thus provides an example of an affirmative
action plan going beyond strictly proportional
representation in a training program: 50% of the spots
would go to the company’s black workers, even though
black persons made up only 39% of the area labor force.
Employees who had completed Weber’s training
program could then proceed to the rank of skilled
worker, where the manifest imbalance existed. The
need to create an adequate pipeline of trained workers
meant that the program was sufficiently tailored to
target the “manifest imbalance” among skilled
workers.
The State Department’s 1990-92 Plan worked
similarly. In order to attain full representation at the
SFS and FS-01 levels, the Department maintains, it
had to go beyond strictly proportional minority
representation at the FS-02 and -03 levels. It could
then choose from qualified minority candidates at
those levels to staff its SFS and FS-01 ranks.
Appendix A–37
With regard to the SFS, the Department’s hiring
regulations in place at the time of the 1990-92 Plan
demonstrate that the Department valued a certain set
of skills in its SFS Officers and believed that the best
way for SFS candidates to gain those experiences was
through service in the mid-level Foreign Service ranks.
The regulations provided that career SFS Officers
“normally shall be appointed as the result of promotion
of Mid-Level career officers,” and generally limited the
SFS to a maximum of five percent external hires at any
given time. Appointment of Members of the Foreign
Service, 48 Fed. Reg. 38,606, 38,607 (Aug. 25, 1983).
Additionally, career SFS applicants generally had to
have completed at least five years of service in a
position “of responsibility . . . equivalent to that of a
Mid-Level Foreign Service officer (classes FS-1 through
FS-3),” with “duties and responsibilities . . . similar to
or closely related to that of a Foreign Service officer in
terms of knowledge, skills, abilities, and overseas work
experience.” Id. The difficulties encountered by those
directly promoted to a mid- or high-level position in the
Foreign Service, which usually included a “prolonged
adjustment period” and experiencing “a competitive
disadvantage,” further suggest that percolating
through the ranks was, generally, a sounder career
path.
The conclusion from the then-existing regulations
is straightforward: The Department believed that the
best training for the role of a SFS Officer was
experience as an FS-01, -02, or -03 Foreign Service
Officer. The Department similarly valued skills
gleaned from experience at the FS-02 and -03 ranks for
the position of an FS-01, with outside hires into the
FS-01 ranks serving as the small exception to the
Department’s general internal promotion ladder. See
Appendix A–38
J.A. 343, 516-17. Shea has introduced no evidence
contradicting that understanding.
In view of the Department’s assessment that the
most qualified candidates for the SFS and FS-01 ranks
would come from its own mid-levels, the Department
understandably saw a need to go further than strictly
proportional representation in its mid-levels. That was
necessary, the Department reasonably concluded, in
order to have a sufficient reservoir of talented minority
candidates from which to hire in order to achieve
diversity in its SFS and FS-01 ranks. Otherwise,
assuming that promotion rates were the same across
races from the mid-levels to the SFS and FS-01 levels,
the Department would need to await a great deal of
turnover in the overwhelmingly white SFS and FS-01
ranks before the substantial imbalances at those levels
would be rectified.
Congressional testimony on the 1989 GAO Report
reveals that very concern. Joseph Kelley of the General
Accounting Office, in response to questioning about
when “the State Department [would] become
representative of the American people,” told Congress
that “[i]t is going to take a long time,” and noted that
the EEOC had been pushing the Department “to have
a program to move people around and to have
upper-level promotions, but it ha[d]n’t worked out that
well.” 1989 Subcomm. Hearing at 29-30. The
Department required a method by which to augment
the flow of minority candidates to the SFS and FS-01
levels. As Representative Sikorski observed, “if the
numbers [only] get[] better in . . . entry level and
hiring,” then “there is no upward progress. There is no
flow in the right direction. We are talking centuries.”
Id. at 29-30.
Appendix A–39
It is no answer to claim that the Department could
simply promote minorities to the SFS and FS-01 levels
at higher rates than their non-minority peers. That
itself would have been a race-conscious action
requiring justification. That option, at any rate,
appears to have been non-viable. Testimony before
Congress indicated that promotions of minorities to
high-level positions were already happening “too fast,”
such that the Department began “to get a backlash”
that promotions were “not [of] qualified . . . minorities”
and that those promoted were “not really ready to
make this jump.” Id. at 47. Title VII does not require
the Department to promote unqualified candidates to
execute the important mission of our diplomatic corps.
For those reasons, the 1990-92 Plan’s emphasis on
hiring at mid-level positions was adequately tailored to
address manifest imbalances at the senior levels.
At its root, finally, the unnecessary trammeling
inquiry amounts to an exercise in balancing a plan’s
attempts to remedy past discrimination against the
plan’s adverse impact on the rights of non-minorities.
In this case, the latter impact was unquestionably
limited. The 1989 GAO Report indicates that the State
Department had 655 SFS Officers, 836 FS-01 Officers,
and 2,032 FS-02 or -03 Officers. 1989 GAO Report
at 17. Against that backdrop, the Department informs
us that only sixteen minority candidates were hired
into the midlevels through the 1990-92 Plan over the
three calendar years of its operation. With such a
modest effect on the hiring process, the 1990-92 Plan
was necessarily limited in the extent to which it could
“trammel” Shea’s rights, “unnecessarily” or otherwise.
c.
Appendix A–40
The tailoring inquiry, according to our decisions,
also takes into account whether the employer
considered race-neutral alternatives. See Hammon II,
826 F.2d at 81. While the program we considered in
Hammon failed to pass muster because “reasonable
alternatives were not seriously discussed,” Hammon I,
813 F.2d at 430, the district court in this case found
the Department’s evidence to show that it turned to
the 1990-92 Plan’s race-conscious measures only after
race-neutral efforts failed to bear fruit. Shea, 961 F.
Supp. 2d at 40-41. We agree.
The record documents a number of previous
attempts to correct the identified imbalances without
resort to explicit racial preferences, particularly
through recruiting and outreach. From 1964 on, the
Department targeted historically black institutions as
part of its “diplomat in residence” program, through
which it assigned a senior-level Foreign Service Officer
to research, writing, and teaching duties at a
university in an effort to generate interest in the
Foreign Service among students. 1989 GAO Report
at 24. From 1980 on, the Department made a
concentrated recruiting push to stimulate an increase
in minority applicants, including by “provid[ing]
information packages to colleges . . . and ask[ing]
college coordinators to encourage minorities. . . to take
the annual written [Foreign Service] examination.” Id.
at 22-23. The Department’s recruiters made special
efforts to visit colleges and universities with large
minority enrollments. Id. at 23. Ultimately, however,
the Department concluded that its “recruiting efforts
[did] not increase[] the number of minorities taking the
FS examination for officer positions.” Id. And in 1986,
the Secretary of State implemented a recommendation
from black Foreign Service Officers aimed at elevating
Appendix A–41
minority written exam pass rates by increasing
minority enrollment in university courses relevant to
the exam. That initiative, too, apparently proved
unsatisfactory. See id. at 25.
The Department also instituted “sensitivity
training” between “senior management” and “senior
minorities” to address the gap, with little success.
J.A. 369-70. Moreover, it considered implementing an
entirely race-neutral mid-level entry program, but
rejected that option as unlikely to be effective—an
understandable conclusion in light of the inadequacy of
State’s earlier reliance on “the promotion of entry level
FS officers to eliminate underrepresentation at more
senior levels.” J.A. 301, 543. The 1990-92 Plan thus
hardly constituted the Department’s maiden effort to
solve its persistent diversity problem, and Shea points
to no other race-neutral alternatives that should have
been considered.
The Department, in short, has introduced evidence
that the 1990-92 Plan worked to target manifest
imbalances in senior-level positions in the Foreign
Service Officer corps, and that those imbalances
resulted from past discrimination. It has also
introduced evidence that the Plan refrained from
unnecessarily trammeling the rights of non-minority
candidates. We therefore conclude that the
Department satisfies its burden to introduce evidence
that, if taken as true, demonstrates the 1990-92 Plan’s
validity under Johnson and Weber.
Appendix A–42
V.
Having concluded that the Department met its
burden of production at the second step of the
Johnson-McDonnell Douglas framework, we ask at the
final step whether Shea has proven that the
Department’s “justification is pretextual and the plan
is invalid.” Johnson, 480 U.S. at 626. In the district
court, Shea introduced his own lay statistical evidence
in an attempt to show that the Department’s identified
manifest imbalances did not exist. See Shea, 961 F.
Supp. 2d at 45-53. The district court rejected every
piece of statistical evidence proffered by Shea as
inadmissible. See id. Shea does not appeal those
findings, and he raises no other claims of the 1990-92
Plan’s invalidity for purposes of Johnson’s third step.
He therefore necessarily fails to carry his burden at
that step, warranting the entry of summary judgment
in favor of the Department.
*
*
*
*
*
For the foregoing reasons, we affirm the district
court’s grant of summary judgment.
So ordered.
Appendix A–43
WILLIAMS, Senior Circuit Judge, concurring: I join
the court’s opinion painstakingly applying the key
Supreme Court cases, Johnson v. Transp. Agency,
Santa Clara Cnty., 480 U.S. 616 (1987), and United
Steelworkers v. Weber, 443 U.S. 193 (1979). I write
separately to note that this area of the law continues to
be rather amorphous and to call attention to a
statistical problem disclosed by the record but not
raised by the plaintiff on appeal.
Nearly three decades ago Judge Silberman
observed that he was “uncertain as to the meaning of
‘manifest imbalance.’” Hammon v. Barry, 826 F.2d 73,
81 (D.C. Cir. 1987) (Silberman, J., concurring in denial
of rehearing). I fully share that uncertainty, and would
add that I have the same reaction to all of the key
terms prescribed by the Supreme Court for assessing
affirmative action plans under Title VII: whether
there has been “manifest imbalance” in a “traditionally
segregated job category,” and whether the plan
“unnecessarily trammels the rights” of the persons
disfavored. Court Op., 24. It may be that the Supreme
Court selected these terms to assure that, without
saying it in so many words, an employer can use race
and gender for hiring or promoting minorities or
women to the extent appropriate to assure that there
is no “underrepresentation”—i.e., to amend any
nontrivial deviation from proportionality to some more
or less plausible applicant pool (at least so long as the
employer can muster vague, generalized and/or
hearsay assertions of past discrimination). This is not
a self-evident interpretation of Title VII’s directive that
employers are not “to discriminate against any
individual . . . because of such individual’s race [or]
sex.”
Appendix A–44
The effect is especially striking here: Shea neither
challenged the district court’s ruling that his analysis
of the State Department’s calculations was
inadmissible, Court Op. 40, nor its ruling that the
affirmative action plan’s repeated declarations of
“manifest imbalance” were sufficient without expert
provision of statistical support. See Shea v. Kerry, 961
F. Supp. 2d 17, 51-52 (D.D.C. 2013). The figures
underpinning State’s plan consist mainly of numerical
comparisons of various subgroups of Foreign Service
employees (“Administrative,” “Professional,” “Clerical,”
etc.) with a selected comparison group based on the
“National Civilian Labor Force” data for various types
of workers, e.g., “Public Administration Administrators
and Officials.” Joint Appendix (“J.A.”) 209, 216. The
description of the study in the record, J.A. 209, does
not state what statistical test or standard of statistical
significance the authors used, or indeed whether they
used any statistical method at all. Certainly they do
not suggest that they made an adjustment in the
standard for statistical significance to account for the
multiplicity of subgroups, as would be necessary if we
assume that State was seeking to identify only
“imbalances” not attributable to random chance.
“When interpreting . . . a table which summarizes
results from a number of comparisons, one must bear
in mind that when the number of comparisons is large
[State’s report included hundreds], the probability may
be substantial that at least one disparity with a
P-value less than .05 will occur because of pure
chance.” David C. Baldus & James W. L. Cole,
Statistical Proof of Discrimination § 9.03 (Supp. 1987);
see also id. at n.24a (“It is a mathematical fact that
where 17 independent comparisons are to be tested,
the probability of finding one or more to be statistically
Appendix A–45
significant at the .05 level is .58, or almost 6 chances in
10.”).
Further impairing the value of the analysis is that
many of the subsets are so small as to indicate a
complete lack of intelligible criteria for State’s
assertions of “manifest imbalance,” a term the report
often uses but never explains. The report contains
charts that split the workforce three ways (by
occupational subgroup, ethnicity, and gender), and in
one case it announces that it “reveals” a “manifest
imbalance” of American Indian females (who represent
0.2% of the labor force comparison data) in the Finance
Officer division, which employs only 125 people.
J.A. 224-25. It seems improbable that any statistical
test or standard of significance could yield evidence of
a non-random “imbalance” for so small a subgroup. To
the extent the report is suggesting that some purported
“imbalances” could be amended by the hiring of a
single employee of the right ethnicity and gender in the
occupational unit in question, that response would, in
turn, presumably create “imbalance” in another
direction—thus appearing to undermine whatever
criteria may have been used to define “manifest
imbalance.” See, e.g., J.A. 218-19; 224-25. I recognize
that Johnson is quite specific in stating that the proof
of imbalance needed as a prerequisite for race- and
gender-based affirmative action preferences is less
than what is needed to establish a prima facie case of
a Title VII violation, 480 U.S. at 632-33, but an
employer performing this exercise should at least be
able to state its criteria for “manifest imbalance.”
The State Department in this respect sounds
rather like the defendant university in Hill v. Ross, 183
F.3d 586, 591 (7th Cir. 1999): “What the University
Appendix A–46
appears to have in mind is a world in which the
absence of discrimination means that every
department would exactly mirror the population from
which its members are hired. But that is statistical
nonsense.” In Hill, Judge Easterbrook went on to
explain in detail what made the university’s theories
nonsensical. Without close attention, Johnson’s
seeming license to pursue proportionality in a
workforce can dissolve into a license to pursue
proportionality in almost any subset of the workforce.
Appendix B–1
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 13-5153
September Term, 2014
FILED ON: AUGUST 7, 2015
WILLIAM E. SHEA,
APPELLANT
V.
JOHN F. KERRY, SECRETARY OF STATE,
IN HIS OFFICIAL CAPACITY,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:02-cv-00577)
Before: ROGERS and SRINIVASAN, Circuit Judges, and
WILLIAMS, Senior Circuit Judge
JUDGMENT
This cause came on to be heard on the record on
appeal from the United States District Court for the
District of Columbia and was argued by counsel. On
consideration thereof, it is
ORDERED and ADJUDGED that the judgment
of the District Court appealed from in this cause is
hereby affirmed, in accordance with the opinion of the
court filed herein this date.
Per Curiam
Appendix B–2
FOR THE COURT:
Mark J. Langer, Clerk
BY:
/s/
Ken Meadows
Deputy Clerk
Date: August 7, 2015
Opinion for the court filed by Circuit Judge Srinivasan.
Concurring opinion filed by Senior Circuit Judge
Williams.
Appendix C–1
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 13-5153
September Term, 2014
1:02-cv-00577-RCL
Filed On: August 7, 2015 [1566750]
William E. Shea,
Appellant
v.
John F. Kerry, Secretary of State,
in his official capacity,
Appellee
O R D E R
It is ORDERED, on the court’s own motion, that
the Clerk withhold issuance of the mandate herein
until seven days after disposition of any timely petition
for rehearing or petition for rehearing en banc. See
Fed. R. App. P. 41(b); D.C. Cir. Rule 41. This
instruction to the Clerk is without prejudice to the
right of any party to move for expedited issuance of the
mandate for good cause shown.
FOR THE COURT:
Mark J. Langer, Clerk
BY:
/s/
Ken R. Meadows
Deputy Clerk
Appendix D–1
961 F. Supp. 2d 17
United States District Court,
District of Columbia.
William E. SHEA, Plaintiff,
v.
John F. KERRY, Secretary
U.S. Department of State1, Defendant.
1
On February 1, 2013, John F. Kerry succeeded
Hillary Clinton as the United States Secretary of
State. Since this suit is against the Secretary of
State in his or her official capacity only, the Court
will substitute Secretary Kerry as defendant in
this matter, per Federal Rule of Civil Procedure
25(d).
No. CIV. 02-577 RCL
May 10, 2013.
Synopsis
Background: White former Foreign Service officer,
proceeding pro se, brought Title VII reverse
discrimination claim against Department of State,
alleging he would have been eligible for higher
placement but for his race. Parties cross-moved for
summary judgment.
Holdings: The District Court, Royce C. Lamberth,
Chief Judge, held that:
[1] officer established prima facie Title VII reverse
discrimination claim;
[2] significant minority underrepresentation motivated
adoption of Mid-Level Affirmative Action Plan
(MLAAP);
Appendix D–2
[3] Department established predicate of discrimination
caused racial imbalances in employment;
[4] Department considered alternatives to explicit
racial preferences;
[5] MLAAP did not foreclose opportunities for
non-minority hiring and advancement;
[6] MLAAP did not burden non-minorities; and
[7] officer’s use of statistics was not admissible.
Plaintiff’s motion denied; defendant’s motion granted.
Attorneys and Law Firms
William E. Shea, Laredo, TX, for Plaintiff.
Darrell C. Valdez, William Mark Nebeker, U.S.
Attorney’s Office, Washington, DC, for Defendant.
MEMORANDUM OPINION
ROYCE C. LAMBERTH, Chief Judge.
Pro se plaintiff William Shea, a white career Foreign
Service officer, brought this Title VII reverse
discrimination action against the Department of State
(“State”). Compl., Mar. 3, 2002, ECF No. 1. When State
hired Shea in 1992, State operated an affirmative
action program that made qualified minorities eligible
for direct placement into mid-level classes of the
Foreign Service. Shea claims he would have been
eligible for this mid-level placement program but for
his race and still feels the effect of his entry at a lower
pay grade—each paycheck is less than it would have
been if he entered as a mid-level officer.
This case suffered a series of fits and starts, largely
attributable to Ledbetter v. Goodyear Tire & Rubber
Appendix D–3
Co., 550 U.S. 618, 127 S. Ct. 2162, 167 L.Ed.2d 982
(2007) and the Lilly Ledbetter Fair Pay Act, Pub. L.
No. 111-2 (Jan. 29, 2009). Since Shea based his claim
on the continuing effects of a discriminatory decision
made in 1992, his claim was time-barred until passage
of the Lilly Ledbetter Act. The substantive merits are
finally ripe for consideration as the Court considers
each party’s motion for summary judgment. Under
Title VII, Shea has the ultimate burden of proving that
State’s affirmative action plan was unlawful. Shea
cannot support an essential element of his claim with
admissible evidence. He tries to prove, via his own
amateur statistics, that minorities were not
significantly under-represented in the Foreign Service
mid-levels. Shea needs, and lacks, qualified testimony
about the statistical significance of his findings.
Therefore, State is entitled to summary judgment on
Shea’s remaining claims and this case will be
dismissed with prejudice.
I. BACKGROUND
A. Factual Background
In 1985, Congress enacted the Foreign Relations
Authorization Act, Fiscal Years 1986 and 1987 (“198687 FRAA”). Pub. L. 99-93. The 1986-87 FRAA directed
State to “develop . . . a plan designed to increase
significantly the number of members of minority
groups and women in the Foreign Service.” Pub. L. 9993, Title I, § 152(a). Congress further directed that
“each plan developed pursuant this section shall . . .
place particular emphasis in achieving significant
increases in the numbers of minority group members
and women who are in the mid-levels of the Foreign
Service.” Pub. L. 99-93, Title I, § 152(b). Thereafter,
State instituted the Mid-Level Affirmative Action Plan
Appendix D–4
(“MLAAP”) under its more general Mid-Level Foreign
Service Career Candidate Program (“MLCCP”). See
Def.’s Statement of Facts Not in Genuine Dispute ¶ 3
(“Def.’s SMF”), Aug. 17, 2012, ECF No. 120-1; Pl.’s
Response to Def.’s Statement of Material Facts Not in
Dispute 7-8 (“Pl.’s SMF Resp.”), Aug. 30, 2012, ECF
No. 123-4 (only objecting to defendant’s statement that
MLAAP was “in response” to FRAA). Although white
women were not qualified to participate in the MLAAP,
State created the “Federal Women Programs” and the
Federal Women’s Program manager to develop and
monitor programs aimed at greater female
representation. Def.’s SMF ¶ 4; Pl.’s SMF Resp.
(admitting Def.’s SMF ¶ 4).
In 1987, Congress enacted the Foreign Relations
Authorization Act, Fiscal Years 1988 and 1989 (“198889 FRAA”). Pub. L. 100-204. In the 1988-89 FRAA
Congress found:
[T]hat the Department of State and other
Foreign Service agencies have not been
successful in their efforts—(1) to recruit and
retain members of minority groups in order to
increase significantly the numbers of
minority groups in the Foreign Service; and
(2) to provide adequate career advancement
for women and members of minority groups
in the senior levels of the Foreign Service.
Pub. L. 100-204, Title I, § 183(a). Congress further
required State to “substantially increase their efforts
to implement effectively the plans required by” the
1986-87 FRAA and “ensure that those plans effectively
address the need to promote increased numbers of
qualified women and members of minority groups into
the senior levels of the Foreign Service.” Pub. L. 100-
Appendix D–5
204, Title I, § 183(b). State revised the MLAAP in
November 1990 and instituted its FY 1990-92 MidLevel Affirmative Action Plan, which was in effect
when Shea applied to, and was hired by, State. Def.’s
SMF ¶ 9; Pl.’s SMF Resp. 10 (admitting Def.’s SMF
¶ 9).
Mid-level hiring allowed State to hire a Foreign Service
candidate directly into a higher grade, rather than into
an entry-level grade. Under the general mid-level
hiring program, a candidate with the requisite
experience could enter as a mid-level hire if State
received a “certification of need” that State required an
outside hire at that grade and with those
qualifications. The Mid-Level Affirmative Action Plan
dispensed with the “certification of need” requirement
in favor of self-identification as American Indian,
Alaskan Native, Asian and Pacific Islander, Hispanic,
or African American. State required all candidates for
mid-level hiring—both minority and non-minority—to
(a) have substantial professional experience, (b) receive
a passing grade on an oral examination, and (c) pass a
background check. In February 1993, State ended the
mid-level affirmative action program, but kept in place
its more general mid-level hiring program. Def.’s SMF
¶¶ 10, 12-17; Pl.’s SMF Resp. 10-11 (admitting in all
relevant respects Def.’s SMF ¶¶ 10, 12-17).
In September 1990, William Shea—a white male of
Irish descent—submitted an application to the Foreign
Service. Shea never applied for mid-level placement
through the general Mid-Level Foreign Service Career
Candidate Program. In May 1993, State hired Shea as
an entry-level career Foreign Service Officer; he came
in at grade FS-05, step 5.2 Shea knew at the time he
was hired that qualified minorities could start at
Appendix D–6
higher grades, and that two people in his introductory
class were starting at midlevel grades due to their
participation in a minority mid-level hiring program.
Shea did not file an administrative grievance until
July 11, 2001—nine years after he entered the Foreign
Service. Def.’s SMF ¶¶ 20-23, 26, 37; Pl.’s SMF Resp.
13-16 (admitting Def.’s SMF ¶¶ 20-23, 26, 37).
2
In the Foreign Service personnel system, FS-05 is
the entry-level grade and FS-01 is the senior
grade. See Def.’s SMF ¶ 11; Pl.’s SMF Resp. 10
(admitting Def.’s SMF ¶ 11).
In his Complaint, Shea alleged that he would have
passed the screening process of the MLAAP, but was
excluded from consideration solely because of his race.
Specifically, Shea alleged harm because his hiring at
entry-level rather than mid-level grade has subjected
him to lower pay and fewer promotion opportunities
than members of minority groups admitted under the
MLAAP, in violation of his rights under Title VII. See
Compl. ¶¶ 1-2.
B. Procedural Background
On July 11, 2001, Shea filed a grievance with the State
Department asserting, among other things, racial
discrimination in violation of Title VII because of the
disparate pay he was receiving. See Def.’s SMF ¶ 37;
Pl.’s SMF Resp. 11 (admitting Def.’s SMF ¶ 37); Compl.
¶¶ 1-2. On January 30, 2002, Shea received the
decision of the Foreign Service Grievance Board
dismissing Shea’s complaint for lack of jurisdiction.
Compl. ¶ 2. Having exhausted his administrative
remedies, Shea filed suit in this Court on March 26,
2002. His Complaint raised a Title VII challenge to the
MLAAP, claiming he was injured by continuing to
Appendix D–7
receive a lower paycheck than he would had he been
eligible for mid-level placement though the MLAAP.
The case was initially assigned to Judge James
Robertson, who granted State’s Motion to Dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(6)
because Shea’s complaint and administrative grievance
were untimely. Mem. & Order, Sept. 30, 2003, ECF
Nos. 15 & 16. He found Shea’s “complaint amounted to
no more than allegations of discrimination in May
1992, when he started at a lower pay grade.” Mem. 4,
ECF No. 16. Judge Robertson held that each
allegedly-diminished paycheck did not amount to a
new, discrete discriminatory act that reset the clock for
filing an administrative complaint. Id. at 3-4. Shea
tried to rely on Anderson v. Zubieta, 180 F.3d 329 (D.C.
Cir. 1999) and Bazemore v. Friday, 478 U.S. 385, 106
S. Ct. 3000, 92 L.Ed.2d 315 (1986) “for the proposition
that, every time he received a paycheck for less than it
would have been had he not been discriminated
against, he was ‘discriminated against anew.” Id. at 4.
However, Judge Robertson found that these cases were
“inapposite,” because there was not a “ ‘discriminatory
system in place,” akin to those in Bazemore and
Anderson. Id. (quoting Niedermeier v. Office of Baucus,
153 F. Supp. 2d 23, 29 (D.D.C. 2001)). Furthermore,
Judge Robertson dismissed Shea’s constitutional
claims and his request for declaratory and injunctive
relief. Id. at 4-5.
Shea then appealed the district court’s ruling. See
Notice of Appeal, Nov. 11, 2003, ECF No. 17. “While
the district court dismissed all of his allegations on the
pleadings—finding none stated a viable claim—Shea
[sought] review of only one: i.e., that his pay and
benefits are discriminatorily low because the State
Appendix D–8
Department set his pay grade pursuant to a diversity
program that disadvantaged him on account of his race
(white) and ethnicity (Irish), in violation of Title VII of
the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq.,
and the Equal Protection component of the Fifth
Amendment, U.S. Const. amend V.” Shea v. Rice, 409
F.3d 448, 449 (D.C. Cir. 2005). The court of appeals
found that “Bazemore holds that an employee may
recover for discriminatorily low pay received within the
limitations period because each paycheck constitutes a
discrete discriminatory act,” id. at 455, reversed the
district court’s dismissal, and remanded for further
proceedings, id. at 456.
While the case was on remand, the Supreme Court
decided Ledbetter v. Goodyear Tire & Rubber Co., 550
U.S. 618, 127 S. Ct. 2162, 167 L.Ed.2d 982 (2007) and
brought the D.C. Circuit’s analysis into doubt. Judge
Robertson denied State’s subsequent Rule 12(c) motion
for judgment on the pleadings, but invited the parties
to file for summary judgment after a fuller
development of the factual record. See Order, Aug. 30,
2007, ECF No. 43. After the parties filed cross-motions
for summary judgment, Judge Robertson found that
Ledbetter effectively overturned the D.C. Circuit’s prior
analysis. Shea v. Rice, 587 F. Supp. 2d 166, 168-69
(D.D.C. 2008). He stated that Shea’s argument “cannot
be successfully distinguished from the ‘paycheck
accrual rule’ that Ledbetter argued for and that the
Supreme Court rejected.” Id. at 169. Bazemore could
not save Shea because State did not engage in any
“fresh discrimination” or continue a discriminatory
system during the limitations period; it was
undisputed that State ended its mid-level affirmative
action program in 1993. Id. at 169-70. Therefore, Judge
Robertson granted State summary judgment.
Appendix D–9
Shea again appealed the dismissal of his case. See
Notice of Appeal, Nov. 23, 2008, ECF No. 65. While
Shea’s appeal was pending, Congress passed the Lilly
Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, 123
Stat. 5 (2009), which abrogated the Supreme Court’s
holding in Ledbetter. The D.C. Circuit remanded for
reconsideration in light of this intervening change.
Shea v. Clinton, No. 08-5491, 2009 WL 1153448, at *1
(D.C. Cir. Apr. 2, 2009).
On remand, Judge Robertson reconsidered the parties’
summary judgment motions, examining arguments he
did not reach earlier because he had disposed of the
case on other grounds. Mem. Order, Aug. 11, 2009,
ECF No. 69. He rejected State’s legislative immunity
defense and found State did not have enough evidence
to support a laches defense. Id. at 3-5. He then
considered Shea’s Title VII challenge to the MLAAP.
He applied the burden-shifting framework of
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.
Ct. 1817, 36 L.Ed.2d 668 (1973), and considered Shea’s
claims under the affirmative action jurisprudence of
United Steelworkers v. Weber, 443 U.S. 193, 99 S. Ct.
2721, 61 L.Ed.2d 480 (1979), Johnson v.
Transportation Agency, Santa Clara County, Cal., 480
U.S. 616, 107 S. Ct. 1442, 94 L.Ed.2d 615 (1987), and
Hammon v. Barry, 826 F.2d 73 (D.C. Cir. 1987). Id.
at 6-7. Judge Robertson stated that:
The government will be liable to Shea on
account of the affirmative action program
that was in operation at State more than
fifteen years ago only if Shea can show (a)
that the program was unlawful—meaning
generally that it was not designed to cure a
manifest imbalance in the workforce; (b) that,
Appendix D–10
except for his race, Shea was qualified for the
program; and (c) that Shea was damaged
during the period of limitations by the
continuing effects of the MLAAP.
Id. at 5-6. At that time, the factual record regarding
the legality of State’s affirmative action plan had not
been well developed. Id. at 8. Therefore, Judge
Robertson denied both parties’ motions for summary
judgment, id. at 11, and set a schedule for additional
fact and expert discovery, see Scheduling Order,
Sept. 23, 2009, ECF No. 73.
Several miscellaneous motions followed. First, State
objected to the Court’s treatment of the MLAAP as a
voluntary affirmative action plan and requested
reconsideration. See Def.’s First Mot. Reconsideration,
Aug. 19, 2009, ECF No. 70. The Court denied this
motion the next day. Order, Aug. 20, 2009, ECF No 71.
On January 1, 2010, Shea filed his still-pending Motion
for Summary Judgment, ECF No. 74. Thereafter, the
Court allowed State to amend its discovery responses
so State will not have been deemed to admit to several
of Shea’s factual claims. See Order Granting Def.’s
Mot. for Leave to File, Feb. 2, 2010, ECF No. 78.
Judge Robertson retired in 2010, and the case was
randomly reassigned to Judge Henry H. Kennedy on
June 4, 2010. Reassignment of Civil Case, June 4,
2010, ECF No. 80. Less than a month later, the case
was randomly reassigned to Judge Emmet G. Sullivan.
Reassignment of Civil Case, June 30, 2010, ECF
No. 83. Judge Sullivan extended all discovery until
September 30, 2010. Minute Order, July 6, 2010;
Revised Scheduling Order, July 6, 2010, ECF No. 84.
Appendix D–11
Shea then filed a motion for reconsideration,
challenging various aspects of Judge Robertson’s prior
rulings. Pl.’s Mot. Reconsideration, July 23, 2010, ECF
No. 85. Shea also moved to hold discovery deadlines in
abeyance until resolution of this motion. ECF No. 86.
In response, Judge Sullivan stayed the entire matter
until an April 6, 2011 status conference. Minute Order,
Mar. 9, 2011. At that conference, he orally extended
the stay indefinitely.
The parties continued to file motions during the stay.
State filed a second motion for reconsideration, again
arguing that Congress mandated the MLAAP and that
it was error to subject it to the standards applicable to
voluntary affirmative action plans. Def.’s Second Mot.
Reconsideration, Apr. 5, 2011, ECF No. 93. Shea then
filed a motion to apply judicial estoppel to bar State
from submitting an opposition to Shea’s still-pending
motion for summary judgment. Pl.’s Mot. to Apply
Judicial Estoppel, Nov. 7, 2011, ECF No. 106.
On October 11, 2011, the case was reassigned by
consent to its fourth (and, perhaps, final) judge, Chief
Judge Royce C. Lamberth. See Reassignment of Civil
Case, ECF No. 105. Chief Judge Lamberth denied both
parties’ motions for reconsideration and Shea’s motion
for application of judicial estoppel, and lifted the stay
on July 30, 2012. See Shea v. Clinton, 850 F. Supp. 2d
153 (D.D.C. 2012); Shea v. Clinton, 880 F. Supp. 2d 113
(D.D.C. 2012). The Court set a schedule for briefing on
Shea’s still pending summary judgment motion and
any cross-motion offered by State. See Mem. & Order
9, July 30, 2012, ECF No. 118.
On August 17, 2012, State filed a second Motion for
Summary Judgment. ECF No. 120. This led to several
more rounds of procedural motions and requests for
Appendix D–12
extensions. See ECF Nos. 122, 125, 129, 132. After the
Court settled these issues (see ECF Nos. 137-39; Shea
v. Clinton, 288 F.R.D. 1 (D.D.C. 2012)), the parties’
motions for summary judgment were finally ripe for
consideration on December 22, 2012. With discovery
closed and a full briefing on the merits presented, the
Court can finally consider the substantive merits of
Shea’s claim.
II. LEGAL STANDARDS
A. Summary Judgment
“The court shall grant summary judgment if the
movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a); see
also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247,
106 S. Ct. 2505, 91 L.Ed.2d 202 (1986). The mere
existence of any factual dispute will not defeat
summary judgment; “the requirement is that there be
no genuine issue of material fact.” Anderson, 477 U.S.
at 247-48, 106 S. Ct. 2505 (emphasis in original). A fact
is material if, under the applicable law, it could affect
the outcome of the case. Id. A dispute is genuine if the
“evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Id. Because
“[c]redibility determinations, the weighing of the
evidence, and the drawing of legitimate inferences from
the facts are jury functions, not those of a judge,” the
“evidence of the non-movant is to be believed, and all
justifiable inferences are to be drawn in his favor.” Id.
at 255, 106 S. Ct. 2505. A nonmoving party, however,
must establish more than “the existence of a scintilla
of evidence” in support of its position. Id. at 252, 106 S.
Ct. 2505. The inferences drawn from the evidence
“must be reasonably probable and based on more than
Appendix D–13
mere speculation.” Rogers Corp. v. E.P.A., 275 F.3d
1096, 1103 (D.C. Cir. 2002) (citations omitted). The
nonmoving party may not rely solely on allegations or
conclusory statements. See Greene v. Dalton, 164 F.3d
671, 675 (D.C. Cir. 1999). The nonmoving party must
present specific facts that would enable a reasonable
jury to find in its favor. Id. If the evidence presented is
“merely colorable, or is not significantly probative,
summary judgment may be granted.” Anderson, 477
U.S. at 249-50, 106 S. Ct. 2505.
In Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.
Ct. 2548, 91 L.Ed.2d 265 (1986), the Supreme Court
held that, after “adequate time for discovery and upon
motion,” a court must enter summary judgment
“against a party who fails to make a showing sufficient
to establish the existence of an element essential to
that party’s case, and on which that party will bear the
burden of proof at trial.” Elaborating:
In such a situation, there can be “no genuine
issue as to any material fact,” since a
complete failure of proof concerning an
essential element of the nonmoving party’s
case necessarily renders all other facts
immaterial. The moving party is “entitled to
a judgment as a matter of law” because the
nonmoving party has failed to make a
sufficient showing on an essential element of
her case with respect to which she has the
burden of proof.
477 U.S. at 322-23, 106 S. Ct. 2548 (quoting Fed. R.
Civ. P. 56(c)). The Supreme Court meant “to
disapprove a line of cases allowing a party opposing
summary judgment to resist a properly made motion
Appendix D–14
by reference only to its pleadings,” id. at 325, 106 S. Ct.
2548:
In cases . . . where the nonmoving party will
bear the burden of proof at trial on a
dispositive issue, a summary judgment
motion may properly be made in reliance
solely on the “pleadings, depositions, answers
to interrogatories, and admissions on file.”
Such a motion, whether or not accompanied
by affidavits, will be “made and supported as
provided in this rule,” and Rule 56(e)
therefore requires the nonmoving party to go
beyond the pleadings and by her own
affidavits, or by the “depositions, answers to
interrogatories, and admissions on file,”
designate “specific facts showing that there is
a genuine issue for trial.”
Id. at 324, 106 S. Ct. 2548 (quoting Fed. R. Civ. P. 56).
Rule 56 allows a party seeking or opposing summary
judgment to “object that the material cited to support
or dispute a fact cannot be presented in a form that
would be admissible in evidence.” Fed. R. Civ. P.
56(c)(2). While at summary judgment the nonmovant
“is not required to produce evidence in a form that
would be admissible at trial,” the evidence must be
“capable of being converted into admissible evidence.”
Catrett v. Johns-Manville Sales Corp., 826 F.2d 33, 38
(D.C. Cir. 1987). “Because the objective of summary
judgment is to prevent unnecessary trials, and because
‘[v]erdicts cannot rest on inadmissible evidence,’ it
follows that the evidence considered at summary
judgment must be capable ‘of being converted into
admissible evidence.’” Akers v. Liberty Mut. Group, 744
F. Supp. 2d 92, 96 (D.D.C. 2010) (quoting Greer v.
Appendix D–15
Paulson, 505 F.3d 1306, 1315 (D.C. Cir. 2007)). At
summary judgment the Court cannot rely on “mere
allegations or denials.” Anderson, 477 U.S. at 256, 106
S. Ct. 2505; see also 10A Wright, Miller & Kane,
Federal Practice & Procedure § 2727 (3d ed. 2012) (“A
judge may not resolve a summary-judgment motion by
‘assumptions’ about matters that have not been
properly presented in the manner prescribed by the
rule[.]”).
[1] [2] The filing of a cross-motion for summary
judgment does not “concede the factual allegations of
the opposing motion.” CEI Washington Bureau, Inc. v.
Dep’t of Justice, 469 F.3d 126, 129 (D.C. Cir. 2006).
Cross-motions for summary judgment are treated
separately. See McKenzie v. Sawyer, 684 F.2d 62, 68
n.3 (D.C. Cir. 1982) (“The rule governing cross motions
for summary judgment . . . is that neither party waives
the right to a full trial on the merits by filing its own
motion; each side concedes that no material facts are at
issue only for the purposes of its own motion.”). The
court may—despite the parties’ stipulations that there
are no disputed facts—find material facts are in
dispute, deny both motions, and proceed to trial.
Sherwood v. Washington Post, 871 F.2d 1144, 1147 n.4
(D.C. Cir. 1989).
B. Affirmative Action Plans Under Title VII
Title VII of the Civil Rights Act of 1964, as amended,
prohibits employment discrimination on the basis of
race, color, religion, sex, or national origin. 42 U.S.C.
§§ 2000e-2, 2000e-3. Title VII protects all Americans,
including white men, from race-based employment
discrimination. McDonald v. Santa Fe Trail Transp.
Co., 427 U.S. 273, 280, 96 S. Ct. 2574, 49 L.Ed.2d 493
(1976). Nevertheless, the Supreme Court has
Appendix D–16
repeatedly interpreted Title VII to allow
“race-conscious efforts to abolish traditional patterns
of racial segregation and hierarchy.” Weber, 443 U.S.
at 204, 99 S. Ct. 2721; see also Johnson, 480 U.S.
at 626, 107 S. Ct. 1442. The Supreme Court has
approved of affirmative action plans “designed to
‘eliminate manifest imbalances in traditionally
segregated job categories.’” Johnson, 480 U.S. at 628,
107 S. Ct. 1442 (quoting Weber, 443 U.S. at 197, 99 S.
Ct. 2721).
[3] [4] [5] “The standard for determining whether
affirmative relief is justified under Title VII is less
stringent than under the Constitution.” Stewart v.
Rubin, 948 F. Supp. 1077, 1093 (D.D.C. 1996)
(Lamberth, J.) aff’d, 124 F.3d 1309 (D.C. Cir. 1997).
See also Johnson, 480 U.S. at 627 n.6, 107 S. Ct. 1442
(“The fact that a public employer must also satisfy the
Constitution does not negate the fact that the statutory
prohibition with which that employer must contend
was not intended to extend as far as that of the
Constitution.”); cf. Wygant v. Jackson Bd. of Educ., 476
U.S. 267, 273, 106 S. Ct. 1842, 90 L.Ed.2d 260 (1986)
(applying strict scrutiny to constitutional challenge of
affirmative action plan). Courts analyze Title VII
challenges to affirmative action plans under the
analytical framework set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L.Ed.2d
668 (1973). As the Supreme Court stated:
Once a plaintiff establishes a prima facie case
that race or sex has been taken into account
in an employer’s employment decision, the
burden shifts to the employer to articulate a
nondiscriminatory rationale for its decision.
The existence of an affirmative action plan
Appendix D–17
provides such a rationale. If such a plan is
articulated as the basis for the employer’s
decision, the burden shifts to the plaintiff to
prove that the employer’s justification is
pretextual and the plan is invalid.
Johnson, 480 U.S. at 627, 107 S. Ct. 1442. The plaintiff
bears the ultimate burden of establishing the invalidity
of the affirmative action plan. Id. Reliance on an
affirmative action plan is not an “affirmative defense
requiring the employer to carry the burden of proving
the validity of the plan. The burden of proving its
invalidity remains on the plaintiff.” Id.
[6] [7] In analyzing affirmative action plans under
Title VII, courts consider: (1) whether the plan was
justified by a “manifest imbalance” reflecting an
underrepresentation of minorities or women in
“traditionally segregated job categories”; and
(2) whether the plan was properly tailored to cure the
disparity without unnecessarily trammeling the
interests of non-minorities. Weber, 443 U.S. at 208,
99 S. Ct. 2721. Statistically significant disparities
between the percentage of minorities employed and the
percentage of qualified minorities in the labor market
can be strong evidence of a manifest imbalance. See
Johnson, 480 U.S. at 633, 107 S. Ct. 1442; Palmer v.
Shultz, 815 F.2d 84, 91 (D.C. Cir. 1987). Writing for the
Court in Johnson, Justice Brennan stated that a
“manifest imbalance need not be such that it would
support a prima facie case against the employer.” 480
U.S. at 632, 107 S. Ct. 1442; see also id. at 633 n.11,
107 S. Ct. 1442 (“However, as long as there is a
manifest imbalance, an employer may adopt a plan
even where the disparity is not so striking, without
being required to introduce the nonstatistical evidence
Appendix D–18
of past discrimination that would be demanded by the
‘prima facie’ standard.”); Stewart, 948 F. Supp. at 1094
(“Nor is a finding or admission of prior discrimination
required in a Title VII case. Indeed, to adopt
affirmative measures to resolve Title VII employment
discrimination claims, the employer need not admit to
any prior discrimination, nor point ‘to evidence of an
‘arguable violation’ on its part.’” (quoting Johnson, 480
U.S. at 630, 107 S. Ct. 1442)).
Shortly after Johnson, Judge Kenneth Starr of the D.C.
Circuit read Johnson as not eviscerating the existing
“predicate of discrimination” requirement—an
employer may only use affirmative action as a remedy
for prior discrimination. Hammon, 826 F.2d at 74-75.
Statistics
showing
an
“egregious
underrepresent[ation]” of minorities may give rise to
an “inference of discrimination” by the employer. Id.
at 75. Finding that the Johnson majority agreed with
Justice O’Connor’s statement that affirmative action is
permissible under Weber “only as a remedial device to
eliminate actual or apparent discrimination or the
lingering effects of this discrimination,” Johnson, 480
U.S. at 649, 107 S. Ct. 1442 (O’Connor, J., concurring),
Judge Starr held that “although an employer need not
admit or prove that it had acted discriminatorily,
evidence of the effects of its past or current
discrimination is a prerequisite to lawful
race-conscious employment decisions,” 826 F.2d at 75
n.1.
[8] In determining whether the affirmative action plan
unnecessarily trammels the interests of non-minorities,
courts focus on the nature of the plan—including
whether the plan is temporary, whether it was
intended to attain or maintain a racial balance,
Appendix D–19
whether it imposes quotas, whether it requires the
discharge of white employees, and whether it is
over-inclusive. See, e.g., Weber, 443 U.S. at 208, 99 S.
Ct. 2721; Johnson, 480 U.S. at 636-40, 107 S. Ct. 1442;
United States v. Paradise, 480 U.S. 149, 182, 107 S. Ct.
1053, 94 L.Ed.2d 203 (1987); Stewart, 948 F. Supp.
at 1095-96.
III. DISCUSSION
This case is eleven years old and on its fourth judge.
The district court twice entered final judgment. Order,
Sept. 30, 2003, ECF No. 15; Order, Nov. 21, 2008, ECF
No. 64. The court of appeals twice reversed the district
court and remanded for further Court should clarify a
few preliminary matters.
The Court will use the McDonnell Douglas/Johnson
framework—described supra Part II.B.—to analyze
plaintiff’s Title VII claims. This case only concerns
Shea’s Title VII claims. Shea voluntarily withdrew a
number of his claims in response to State’s first Motion
to Dismiss. See Pl.’s Opp’n to Def.’s Mot. to Dismiss 12, Feb. 10, 2003, ECF No. 12. Shea abandoned other
constitutional claims when he elected not to appeal
their dismissal. See Shea, 409 F.3d at 450-51 (noting
that Shea only appealed the district court’s dismissal
of his pay grade discrimination claim). To the extent
Shea has any remaining constitutional claims, they
would be time-barred under the three-year statute of
limitations applicable to equal protection claims.3
Therefore, the Title VII standard articulated by the
Supreme Court in Johnson v. Transportation Agency,
480 U.S. 616, 107 S. Ct. 1442, 94 L.Ed.2d 615 (1987)
applies—rather than the constitutional standard
articulated by the Supreme Court in Wygant v. Jackson
Board of Education, 476 U.S. 267, 106 S. Ct. 1842, 90
Appendix D–20
L.Ed.2d 260 (1986). Over Justice Scalia’s vigorous
dissent, 480 U.S. at 657-77, 107 S. Ct. 1442, Justice
Brennan’s majority opinion in Johnson made clear that
the statutory test differs from the constitutional test,
480 U.S. at 627 n.6, 107 S. Ct. 1442.
3
Shea’s equal protection claims would be “subject to
the District’s three-year residual limitation
period.” Munoz v. Bd. of Trustees of Univ. of Dist.
of Columbia, 590 F. Supp. 2d 21, 28 (D.D.C. 2008)
aff’d, 427 Fed. Appx. 1 (D.C. Cir. 2011). “To
establish an equal protection claim, plaintiff must
show that she was singled out from among others
similarly situated on the basis of race and/or
national origin.” Id. The plaintiff cannot rely on
the “ongoing negative consequences” of the prior
discrimination to extend the statute of limitations
for his equal protection claim. Id.
The Lilly Ledbetter Fair Pay Act, 123 Stat. 5
(2009), does not address constitutional or
42 U.S.C. § 1983 claims. The Ledbetter Act did
explicitly mention that it applies to claims under
Title VII of the Civil Rights Act of 1964, the Age
Discrimination Act of 1967, the Americans With
Disabilities Act of 1990, and the Rehabilitation
Act of 1973. Id. It would be very odd for the
Ledbetter Act to specify, with great detail, the
types of claims to which it applies and then, sub
silentio, change the statute of limitations for
claims under the equal protection clause or § 1983.
See, e.g., Antonin Scalia & Brian A. Garner,
Reading Law: the Interpretation of Legal Texts 93100 (2012) (explaining semantic canon that
“[n]othing is to be added to what the text states or
reasonably implies (casus omissus pro omisso
habendus est ). That is, a matter not covered is to
Appendix D–21
be treated as not covered.”); id. at 107-111
(explaining the “negative-implication canon”
which suggests that “[t]he expression of one thing
implies the exclusion of others (expressio unius est
exclusio alterius).”).
Furthermore, courts typically look to state law to
determine the statute of limitations for
constitutional claims. See Carney v. Am. Univ.,
151 F.3d 1090, 1096 (D.C. Cir. 1998) (D.C. Code
§ 12-301(8) provides statute of limitations for
§ 1983 claims); Banks v. Chesapeake & Potomac
Tel. Co., 802 F.2d 1416, 1429 (D.C. Cir. 1986)
(§ 12-301(8) provides statute of limitations for
most Bivens actions).
Johnson and its progeny describe the Title VII
standard under which courts analyze voluntary
affirmative action programs. State repeatedly argued
that the MLAAP is not a “voluntary” plan—that the
Foreign Relations Authorization Act, 22 U.S.C.
§ 3922a, mandated the creation of an affirmative action
plan. See, e.g., Def.’s Mem. ISO its First Mot.
Reconsideration 4-6; Def.’s Mem. ISO its Second Mot.
Reconsideration. This Court has rejected these
arguments, finding that while the FRAA “clearly
requires State to implement a plan to address
mid-level positions, it is silent on to the means by
which State is to accomplish this goal.” Shea v.
Clinton, 850 F. Supp. 2d 153, 159 (D.D.C. 2012). The
Court concluded, while also rejecting State’s argument
for legislative immunity, that “[t]he FRAA clearly does
not mandate an exception to Title VII and does not
mandate creation of the MLAAP specifically.” Id.
at 162. As this Court has found previously, see id.
at 158-62, it reiterates that MLAAP is a voluntary
Appendix D–22
affirmative action plan subject to Johnson and its
progeny.
This case is not a “mixed motive” or “direct evidence”
case. Shea’s reliance on Price Waterhouse v. Hopkins,
490 U.S. 228, 109 S. Ct. 1775, 104 L.Ed.2d 268 (1989)
is misplaced. See Pl.’s Opp’n to Def.’s Mot. Summ. J. &
Reply ISO Mot. Summ. J. 39 (“Pl’s Opp’n & Reply”),
Aug. 30, 2012, ECF No. 123. In Price Waterhouse, the
Supreme Court set the standard for “mixed motive”
Title VII cases: Once a plaintiff shows an employer
acted with an impermissible motive, the burden of
proof shifts to the employer to prove that it would have
made the same decision even in the absence of the
impermissible motive. 490 U.S. at 242, 109 S. Ct. 1775.
In 1991, Congress amended Title VII; section 107 of the
1991 Act codified Price Waterhouse “to the extent that
it shifts the burden of persuasion to the defendant to
prove a nondiscriminatory motive was at work.” 2
Barbara T. Lindemann, Paul Grossman & C. Geoffrey
Weirich, Employment Discrimination Law 2544 (4th
ed. 2007). However, this is not a “mixed motive” case,
and courts typically do not treat “reverse
discrimination” cases as falling under the
burden-shifting framework of Price Waterhouse and
§ 107. See id. at 2544-46. Courts in this Circuit have
long held that the mere existence of an affirmative
action plan does not provide “direct evidence” of
discrimination. See, e.g., Parker v. Baltimore & Ohio
R.R., 652 F.2d 1012, 1017 n.9 (D.C. Cir. 1981). “In the
absence of direct evidence of discrimination,”—of which
there is none in this case—“disparate-treatment claims
under Title VII are analyzed under the burden-shifting
framework set forth in McDonnell Douglas[.]” Teneyck
v. Omni Shoreham Hotel, 365 F.3d 1139, 1149 (D.C.
Cir. 2004).
Appendix D–23
Shea may only challenge State’s revised FY 1990-92
Multi-Year Affirmative Action Plan. When the Court
refers to the “MLAAP” generally, it refers to the 199092 plan in effect at the time of Shea’s hiring. At times,
Shea presents arguments based on deficiencies in
State’s earlier 1987 Multi-Year Affirmative Action
Plan. See generally Pl.’s Opp’n & Reply. This plan was
not in effect when Shea applied to State. Shea cannot
directly challenge the 1987 MLAAP, and the details of
its alleged shortcomings are of limited probative value.
On the other hand, the findings of underrepresentation
and prior discrimination underpinning the 1987
MLAAP may be relevant to justifying the later plan.
The 1990-92 plan was a continuation and refinement
of an existing plan. State did not need to justify the
revised plan out of whole cloth; it may rely in part
on its earlier findings of discrimination and
underrepresentation if it found that significant
underrepresentation persisted, and race conscious
policies continued to be necessary.
When considering the numbers, the Court focuses on
the mid- and senior-levels of career Foreign Service
generalist officers. At the time, the Department of
State had two personnel systems—one covering the
“Foreign Service,” and one covering the “Civil Service
system.” See Ex. 2 to Def.’s Cross-Mot. 26
(Shea—00090). The “Civil Service system” covered the
gamut of employees responsible for the general
administration of the State Department, including
clerical, technical, and legal staff. Within the Foreign
Service, there are Foreign Service Officers (or
“Generalists”) and Foreign Service Specialists. Foreign
Service Officers have “general responsibility for
carrying out and conducting the United States’ foreign
relations throughout the world.” Id. Within this corps,
Appendix D–24
State assigned its officers to one of four
“cones”—Administrative, Consular, Economic, and
Political. Foreign Service Specialists, on the other
hand, are “professional specialists in communications,
security, medicine, office support skills, and other
fields.” Id. State is responsible for meeting EEO goals
for both the Civil and Foreign Service, and for both
Foreign Service Generalists and Specialists. Many of
the reports submitted by State also discuss
underrepresentation in the Civil Service and Foreign
Service Specialist ranks. See, e.g., Ex. 2 to Def.’s CrossMot. (State FY 1990-92 Multi-Year Affirmative Action
Plan); Ex. 3 to Def.’s Cross-Mot. (GAO report on
underrepresentation in Foreign Service).
Shea applied for, and received, a position as an
entry-level Foreign Service Officer. See Ex. 12 to Def.’s
Cross-Mot. (Agreement to Join the Foreign Service,
April 22, 1992); Ex. 13 to Def.’s Cross-Mot.
(employment form SF 50-B). Therefore, the rates
of underrepresentation of career Foreign Service
generalist officers are relevant to this case.
Underrepresentation in the mid- and senior-levels is
relevant because Congress specifically expressed
dissatisfaction of the minority representation at both
levels, and directed State to take action to correct for
these specific imbalances. See 1986-87 FRAA, Pub. L.
100-204, Title I, § 183(b); 1988-89 FRAA, Pub. L. 100204, Title I, § 183(b).
With the correct standard and object of inquiry settled,
the Court reiterates that in order for Shea to prevail,
he must prove “(1) that the MLAAP was unlawful,
(2) that except for his race, Shea was qualified for the
program, and (3) that Shea was damaged during the
period in question by the continuing effects of the
Appendix D–25
MLAAP.” Shea, 850 F. Supp. 2d at 163. At trial, Shea
would have the burden of proving the unlawfulness of
the MLAPP. See Johnson, 480 U.S. at 627, 107 S. Ct.
1442. He cannot do meet this burden with admissible
evidence, and thus has “fail[ed] to make a showing
sufficient to establish an element essential” to his case.
Celotex, 477 U.S. at 322, 106 S. Ct. 2548.
A. Shea’s Prima facie Case of Discrimination
Typically, when an “employer has asserted a
legitimate, non-discriminatory reason” for taking an
adverse action against the plaintiff, “the district court
need not—and should not—decide whether the plaintiff
actually made out a prima facie case under McDonnell
Douglas.” Brady v. Office of Sergeant of Arms, 520 F.3d
490, 494 (D.C. Cir. 2008) (emphasis in original). In
many instances, determining whether the plaintiff has
made out a prima facie claim is “a largely unnecessary
sideshow,” id.—especially considering that in a “typical
Title VII suit,” the plaintiff only needs to “establish
that (1) he is a member of a protected class; (2) he
suffered an adverse employment action; and (3) the
adverse action gives rise to an inference of
discrimination [.]” Checka v. Rite Aid of Washington,
D.C., Inc., 538 F. Supp. 2d 82, 86 (D.D.C. 2008) (citing
George v. Leavitt, 407 F.3d 405, 412 (D.C. Cir. 2005)).
[9] [10] However, “[w]hen the plaintiff is a white male
and alleges reverse discrimination . . . the requirement
for establishing a prima facie case changes.” Checka,
538 F. Supp. 2d at 86 (citing Harding v. Gray, 9 F.3d
150, 153 (D.C. Cir. 1993)). Instead of showing that he
is a member of a minority group, the plaintiff must
show “‘background circumstances [that] support the
suspicion that the defendant is the unusual employer
who discriminates against the majority.’” Harding, 9
Appendix D–26
F.3d at 153 (quoting Parker, 652 F.2d at 1017). This
requirement is “not designed to disadvantage the white
plaintiff,” but “merely substitutes for the minority
plaintiff’s burden to show that he is a member of a
racial minority; both are criteria for determining when
the employer’s conduct raises an ‘inference of
discrimination.’” Id. at 153.
[11] A white male plaintiff may show background
circumstances in one of two ways. First, he “may
produce evidence that his employer has reason or
inclination to discriminate against the majority.”
Checka, 538 F. Supp. 2d at 87 (citing Mastro v.
Potomac Elec. Power Co., 447 F.3d 843, 851 (D.C. Cir.
2006)). He may do so by presenting evidence of
“political pressure to promote a particular minority
because of his race, pressure to promote minorities in
general, and proposed affirmative action plans.”
Mastro, 447 F.3d at 851. Second, the plaintiff may offer
evidence that there is “‘something ‘fishy’ about the
facts of the case at hand that raises an inference of
discrimination.’” Id. (quoting Harding, 9 F.3d at 153).
“Evidence that a white plaintiff was given little or no
consideration for a position that was given to a
minority candidate or that a minority candidate was
promoted over four objectively qualified white
candidates has been sufficient to show ‘something
‘fishy[.]’” Checka, 538 F. Supp. 2d at 87.
At least one district court in this jurisdiction has held
that the mere “existence of an affirmative action
policy,” does not “automatically impl[y] discrimination
against the majority” for the purposes of establishing
a prima facie case. Schmidt v. Chao, Civ. No. 04-892,
2006 WL 1663389, at *3 (D.D.C. June 13, 2006).
“Rather, there must be a causal connection between
Appendix D–27
the two, demonstrated by direct or circumstantial
evidence.” Id. As an example of such a “causal
connection,” the Schmidt Court cites Bishopp v.
District of Columbia, 788 F.2d 781, 786 (D.C. Cir.
1986), where “the connection between the existence of
an affirmative action plan and reverse discrimination
was made when the D.C. Fire Department promoted
an African-American candidate, with obviously-inferior
credentials, over four (4) Caucasian candidates who
were better qualified.” Schmidt, 2006 WL 1663389,
at *3.
[12] To show the necessary connection, Shea may offer
some evidence creating an issue of material fact as to
his qualifications for a mid-level position. In denying
both parties’ motions for summary judgment, the Court
found that “State has admitted [Shea’s] qualifications
by failing to respond to proper requests for
admissions.” Mem. Order 9, Aug. 11, 2009, ECF No. 69
(emphasis in original). Thereafter, State requested
leave to amend its discovery responses. Def.’s Mot.
Am./Correct, Jan. 7, 2010, ECF No. 75. Over Shea’s
objection, this Court held:
[I]t appears (a) that defendant’s asserted
“admission” that plaintiff would have been
qualified for MLAAP occurs only by operation
of the government’s failure to respond to a
request for admissions; and (b) that the
failure to respond was justifiable, given the
stops and starts that have occurred in this
litigation. It also appears, however, (c) that
injecting the rhetorical question of the
plaintiff’s qualifications for MLAAP at this
late stage of this long-running case would not
“promote the presentation of the merits of the
Appendix D–28
action,” and (d) that it would prejudice the
plaintiff in maintaining or defending the
action on the merits.
It is accordingly ORDERED that defendant’s
motion is granted, but that, unless the
government is prepared to demonstrate that
any non-minority person applied for and was
denied acceptance to MLAAP because of his or
her qualifications, the plaintiff will be
deemed to have been qualified for
MLAAP—except for his race (or national
origin, or ethnicity).
Order 1-2, Feb. 2, 2010, ECF No. 78 (emphasis in
original). In response, State identified two minority
applicants who had applied for and were denied
acceptance to MLAAP because of their qualifications.
See Decl. of Alina Eldred ¶¶ 4-11, Sept. 17, 2012, ECF
No. 128-2. This misread the Court’s Order. The Court
required State to offer proof that non-minority
applicants were denied acceptance to MLAAP because
of their qualifications; it said nothing about the status
of minority applicants. Since State’s submission was
not responsive to this Court’s Order, the Court deems
Shea to have been qualified for MLAAP, except for his
race.
State’s admission that Shea would have been qualified
but for his race establishes the necessary causal
connection between the MLAAP and discrimination
against the majority. The burden of establishing
“background circumstances” is “minimal,” and not
intended to be “an additional hurdle for white
plaintiffs.” Harding, 9 F.3d at 153-54. Therefore, this
Court finds that Shea has demonstrated “background
circumstances that support the suspicion that the
Appendix D–29
defendant is the unusual employer that discriminates
against the majority,” id. at 153, and thus has
sufficiently stated his prima facie case.
B. State’s Reliance on its
Affirmative Action Program
Shea has established a prima facie case of employment
discrimination under Title VII. Therefore, State has
the burden of producing “admissible evidence that, if
believed, would establish that the employer’s action
was motivated by a legitimate, nondiscriminatory
reason.” Teneyck, 365 F.3d at 1151. Under Johnson,
the “existence of an affirmative action plan provides
such a rationale.” 480 U.S. at 627, 107 S. Ct. 1442. “As
a practical matter . . . an employer will generally seek
to avoid a charge of pretext by presenting evidence in
support of its plan. That does not mean . . . that
reliance on an affirmative action plan is . . . an
affirmative defense requiring the employer to carry the
burden of proving the validity of the plan. The burden
of proving its invalidity remains on the plaintiff.” Id.
at 626-27, 107 S. Ct. 1442.
The “employer’s burden is one of production, not
persuasion.” Teneyck, 365 F.3d at 1151. “By producing
evidence (whether ultimately persuasive or not) of
nondiscriminatory reasons,” the employer will have
“sustained [its] burden of production.” St. Mary’s
Honor Ctr. v. Hicks, 509 U.S. 502, 509, 113 S. Ct. 2742,
125 L.Ed.2d 407 (1993) (emphasis in original). Courts
should not make credibility assessments regarding the
employer’s evidence; an employer meets its burden if it
“introduce[s] evidence which, taken as true, would
permit the conclusion that there was a
nondiscriminatory reason for the adverse action.” Id.
(emphasis in original). “The employer ‘need not
Appendix D–30
persuade the court that it was actually motivated by
the proffered reasons. It is sufficient if the defendant’s
evidence raises a genuine issue of fact as to whether it
discriminated against the plaintiff.’” Antrum v.
Washington Metro. Area Transit Auth., 710 F. Supp. 2d
112, 118-19 (D.D.C. 2010) (quoting Tex. Dep’t of Cmty.
Affairs v. Burdine, 450 U.S. 248, 254-55, 101 S. Ct.
1089, 67 L.Ed.2d 207 (1981)).
The question then is whether State has offered
evidence which, taken as true, permits the conclusion
that State acted pursuant to a lawful affirmative action
plan. To the extent this Court discusses evidence that
goes beyond merely satisfying State’s burden of
production, this does not suggest that State has—at
any time—the burden of persuasion. State’s evidence
concerning the lawfulness of its plan, however, can
make it harder for Shea to prove that State’s asserted
nondiscriminatory reasons are merely pretext and that
State employed an unlawful affirmative action plan.
See, e.g., Johnson, 480 U.S. at 626-27, 107 S. Ct. 1442.
1. Manifest Imbalance and
Discrimination in the Workforce
There must be a manifest imbalance in the workforce,
reflecting discrimination in traditionally segregated job
categories, justifying State’s adoption of an affirmative
action plan. Weber, 443 U.S. at 208, 99 S. Ct. 2721. As
explained by Weber and Johnson, statistically
significant disparities between minorities in the
workplace and qualified minorities in the labor market
may establish a manifest imbalance. For “skilled”
positions the relevant comparator group is the number
of minorities with the requisite qualifications. Johnson,
480 U.S. at 632-33, 107 S. Ct. 1442 (“[I]n determining
whether an imbalance exists that would justify taking
Appendix D–31
sex or race into account, a comparison of the
percentage of minorities or women in the employer’s
work force with the percentage in the area labor
market or general population is appropriate in
analyzing jobs that require no special expertise . . . .
Where a job requires special training, however, the
comparison should be with those in the labor force who
possess the relevant qualifications.”).4
4
While Congress directed State to increase its
minority recruitment efforts “so that the Foreign
Service becomes truly representation of the
American people,” 1988-89 FRAA, Pub. L. 100204, Title I, § 183(b), there is no indication that
State ever used the “American people” as its
comparator when calculating minority
underrepresentation. Cf. Johnson, 480 U.S.
at 654, 107 S. Ct. 1442 (although stated long-term
goal of affirmative action plan was to reach
employment levels that “approximat[ed] the
distribution of women . . . in the Santa Clara
County workforce,” this “long-range goal was
never used as a guide for actual hiring decisions”
and “was merely a statement of aspiration wholly
without operational significance”). State based its
short-term goals on the number of qualified
minorities in the workforce, not the number in the
total labor market or general population. See
generally infra; Exs. 2 & 3 to Def.’s Cross-Mot.
Since affirmative action plans are justified by their
“remedial” purpose, State must offer some evidence of
a “predicate of discrimination.” See Hammon, 826 F.2d
at 80-81. Stark statistical disparities might, by
themselves, infer past discrimination by the employer.
See Johnson, 480 U.S. at 636, 107 S. Ct. 1442 (manifest
Appendix D–32
imbalance shown when none of the 238 skilled
positions were occupied by a women). If the statistical
comparisons merely reflect general societal
discrimination—for which the employer was not
responsible—the numbers alone might not justify
remedial action. See Hammon, 826 F.2d at 80-81. State
is not required to “admit” to past discrimination.
Johnson, 480 U.S. 616, 650, 107 S. Ct. 1442 (O’Connor,
J., concurring) (“Although the employer need not point
to any contemporaneous findings of actual
discrimination, . . . the employer must point to
evidence sufficient to establish a firm basis for
believing that remedial action is required[.]”).
Nevertheless, there must be “evidence of at least the
effects of the employer’s past or current
discrimination.” 2 Lindemann, Grossman & Weirich,
Employment Discrimination Law at 2526 (citing
Hammon, 826 F.2d at 74-75 & n.1). Some combination
of statistical imbalance and evidence of the employer’s
past or current discrimination can provide the
necessary factual predicate to justify a remedial
affirmative action plan. See, e.g., id. at 2525; Johnson,
480 U.S. at 632, 107 S. Ct. 1442; Hammon, 826 F.2d
at 74-75, 80-81.
a. Statistical imbalance
and minority underrepresentation
[13] The defendant offers sufficient evidence to show
t ha t a fi ndi ng o f si g ni fi ca nt minority
underrepresentation motivated the State Department’s
adoption of its affirmative action plan. As discussed in
Part I.A. supra, the chronic underrepresentation of
minorities in the State Department—and the mid-and
senior-levels of the Foreign Service in particular—had
long been an issue. Congress demanded greater
Appendix D–33
minority representation at State, and closely monitored
State’s efforts to set and meet diversity goals. See
1986-87 FRAA, Pub. L. 99-93; 1988-89 FRAA, Pub. L.
100-204. Congress held hearings where representatives
discussed minority underrepresentation in the Foreign
Service, explored the nature and extent of the problem,
and asked State what it was doing to fix the problem.
See Underrepresentation of Women and Minorities in
the Foreign Service—State Department: Hearing Before
the Subcomm. on the Civil Service of the H. Comm. on
Post Office and Civil Service, 101st Cong. (1989) (Ex. 4
to Def.’s Cross-Mot.); The Department of State in the
21st Century: Joint Hearing Before the Subcomm. on
Int’l Operations of the H. Comm. on Foreign Affairs &
the Subcomm. on the Civil Service of the H. Comm. on
Post Office and Civil Service, 101st Cong. (1989) (Ex. 5
to Def.’s Cross-Mot.).
In the late 1980s—directly preceding the drafting and
adoption of the 1990-92 MLAAP—two reports studied
the Foreign Service personnel and management
systems. Thomas Commission Report; Bremer Study
Group Report.5 Congress mandated the “Thomas
Report” in the 1988-89 FRAA; the Secretary of State
himself commissioned the “Bremer Report.” See The
Department of State in the 21st Century (prepared
statement of Rep. Gerry Sikorski, Chairman,
Subcomm. on Civil Service). As interpreted by Rep.
Gerry Sikorski, the Chairman of the Civil Service
Subcommittee, these reports “tell [Congress] that
management of the U.S. Foreign Service is seriously
flawed.” Id. The reports “show that officer training has
particularly suffered,” and address in particular the
“issues of recruitment, career development and
training, the underrepresentation of women and
minorities, [and] the lack of management skills[.]” Id.
Appendix D–34
5
Both reports were entered into the record during
The Department of State in the 21st Century: Joint
Hearing Before the Subcomm. on Int’l Operations
of the H. Comm. on Foreign Affairs & the
Subcomm. on the Civil Service of the H. Comm. on
Post Office and Civil Service, 101st Cong. (1989)
(Ex. 5 to Def.’s Cross-Mot.).
In June 1989, the General Accounting Office (“GAO”)
issued a report titled, “State Department: Minorities
and Women Are Underrepresented in the Foreign
Service.” See Ex. 3 to Def.’s Cross-Mot. This report
found that while existing affirmative action programs
had made some progress, minorities remained
underrepresented:
The State Department increased minority
representation in the Foreign Service from
7 percent in 1981 to 11 percent in 1987 . . . .
In 1987 minorities and white women were
still substantially underrepresented when
compared to civilian labor force data that the
EEOC has issued to measure federal
agencies.
Progress has been mixed in the FS officer and
specialist categories. At the entry level,
underrepresentation in the FS officer corps
has been eliminated, except for AsianAmericans/Pacific Islanders. In the mid-level
ranks of the officer corps, minority male
representation has increased, but minority
and white women have made less progress. In
State’s Senior Foreign Service positions,
underrepresentation of minorities and white
women is still pervasive.
Appendix D–35
Id. at 15 (Shea—008689). An accompanying chart
shows that, as of September 1987, females of every
race were underrepresented as senior and mid-level
Foreign Service Officers, minorities of every race were
underrepresented as senior Foreign Service Officers,
and Hispanics and Asian/Pacific Islanders were
underrepresented in the mid-levels. Id. at 20
(Table 2.3: Underrepresentation of Minorities and
White Women in State’s Foreign Service by Grade (As
of Sept. 1987)) (Shea—008694).
Shea seizes on this chart—and State’s unfortunate
misinterpretation of it6—as evidence that not all
MLAAP—eligible minority groups were
underrepresented. See Pl.’s Opp’n & Reply 4-6. After
all, the chart showed that as of 1987 black and Indian/
Alaskan males were fully represented in the Foreign
Service Officer mid-levels. However, this chart neither
undermines State’s evidentiary proffer that the
MLAAP was lawful, nor proves that the MLAAP was
unlawful. First, the GAO report acknowledged the
limitations of its numbers—the agency had to compare
1987 State Department employment data with a 1980
comparator population:
6
In a rather serious mistake, State used this chart
in its Cross-Motion for Summary Judgment to
show that “in 1987 there were no AfricanAmerican, Hispanic, or Indian males in
mid-level positions.” Pl.’s Cross-Mot. Summ. J.
12 (emphasis in original). Worse still, State bolded
this language, drawing special attention to its
mistake. Digging the hole deeper, State was
repeating a mistake they had made
previously—and had filed an errata to correct. See
Def.’s Reply ISO its Second Mot. Reconsideration
Appendix D–36
6, May 18, 2011, ECF No. 98 (stating the same
incorrect statement verbatim, minus the bolding);
Errata to Def.’s Reply ISO its Second Mot.
Reconsideration 1, May 25, 2011, ECF No. 100
(admitting that the chart “actually shows a
comparison” of workforce and census data “to
demonstrate that, under current EEOC criteria,
the underrepresentation of minority males in
some levels of the Foreign Service was ‘0’”).
Perhaps State did not take its pro se opponent
seriously. The Court warns State that such sloppy
lawyering could have cost State dearly if State had
the burden of persuasion, rather than simply the
burden of production. If this were a constitutional
challenge—and strict scrutiny applied—State may
have failed to justify the MLAAP based on the
record submitted.
The criteria established by the EEOC is based on 1980
census data, but considerable change has occurred in
the civilian labor force since 1980. If these changes
were considered in analyzing State’s representation,
the extent to which minorities and women are
underrepresented would be worse than depicted in
table 2.3. Bureau of Labor Statistics data shows that
blacks, Hispanics, and white women have increased
their representation in the civilian labor force in recent
years. Ex. 3 to Def.’s Cross-Mot. 21 (Shea—008695).
Hammon made clear that a court must use the most
recent available data when determining whether there
is a manifest imbalance. 826 F.2d at 77-78. When State
adopted the 1990-92 MLAAP, it had more recent work
force data available. See Ex. 2 to Def.’s Cross-Mot. 4747a (Shea—00116-17) (discussed in more detail infra).
Second, Shea’s criticism takes a narrow view of the
MLAAP. The MLAAP may work to increase minority
Appendix D–37
representation not only in the mid-levels, but also in
the senior-levels. Table 2.3 shows across-the-board
minority underrepresentation in the senior-levels.
Ex. 3 to Def.’s Cross-Mot. 20 (Shea—008694). Mid-level
minority placement may not be necessary for all
groups, if the only concern was underrepresentation in
the mid-levels. However, mid-level placement helps
alleviate the significant underrepresentation of
minorities in the senior levels by making more
minorities eligible for promotion into the Senior
Foreign Service. Viewed this way, Table 2.3 does not
undermine State’s evidentiary proffer.7
7
This may be a generous reading of Table 2.3, but
that is what is required at this stage. State does
not need to convince the Court that its plan was
lawful. To meet its burden of production, “[t]he
employer ‘need not persuade the court that it was
actually motivated by the proffered reasons. It is
sufficient if the defendant’s evidence raises a
genuine issue of fact as to whether it
discriminated against the plaintiff.’ ” Antrum, 710
F. Supp. 2d at 118-19 (quoting Burdine, 450 U.S.
at 254-55, 101 S. Ct. 1089).
When State formally adopted the revised 1990-92
MLAAP, it made additional findings about manifest
imbalance based on more recent work force and labor
pool data. The document describing the 1990-92
MLAAP includes several analyses of the State
Department workforce, and which job categories had a
“manifest imbalance” for which groups. See Ex. 2 to
Def.’s Cross-Mot. 45-53a (Multi-Year Affirmative
Action Plan FY 1990-92) (Shea—00108-33). In making
these comparisons, officials compared State
employment data from FY 1989 and 1990 with the
Appendix D–38
most recent Occupational National Civilian Labor
Force Data for Public Administration Administrators
and Officials. See id. at 47 (Shea—00116). The analysis
of Foreign Service Generalists showed a “manifest
imbalance” for “White females, Black males, Black
females, Hispanic females, American Indian males,
[and] American Indian females.” Ex. 2 to Def.’s CrossMot. 47 (Shea—00116). The document also showed that
within the Senior Foreign Service “minority officers
were promoted at a lower rate (3.7 percent) than White
males (8.8 percent) or White females (9.0 percent).” Id.
at 74 (Shea—00153). Minorities were also promoted
from the lower-levels to the midlevels—and within the
mid-levels—at a lower rate than white men or women.
Id. While the data showed that minorities were
promoted from class FS-018 to the Senior Foreign
Service at a marginally higher rate, id., the plan
warned that:
8
FS-01 being the highest “mid-level” Foreign
Service Officer class. See Def.’s SMF ¶ 11; Pl.’s
SMF Resp. 10 (admitting Def.’s SMF ¶ 11).
It is important to note, however, that promotion
rates at the senior levels are based on a very small
number of eligible minorities and White women.
For example, Black females were promoted to the
Senior Foreign Service at a 33-percent rate (2 of 6)
compared with an 11-percent rate for White males
(170 of 1,518).
Id. at 75 (Shea—00154). The fact that there were
so few minorities even eligible for promotion into
the Senior Foreign Service skewed the statistics
regarding promotion rates.
“Over-inclusiveness” charges can also be levied at the
1990 data. The 1990-92 plan document does not show
Appendix D–39
that all minority groups eligible for the MLAAP were
in fact underrepresented in the mid-levels. However,
this does not necessarily undermine State’s evidentiary
proffer. First, as detailed supra, mid-level minority
hiring not only immediately cured imbalances in the
mid-levels, but created more opportunities for
minorities to ascend to the Senior Foreign Service. As
the 1990-92 plan noted, very few minorities were
eligible for promotion into the Senior Foreign Service.
Id. Second, while the MLAAP was “open” to all EEO
minority groups, the plan only established
representation goals for groups for which it found a
“manifest imbalance.” See id. at 54 (for Foreign Service
Generalists, establishing goals to increase the
representation of white females, black males, black
females, Hispanic females, American Indian males,
and American Indian females—the same groups the
plan identified earlier as being underrepresented)
(Shea—00134). Or as the defendant puts it, “the 19901992 MLAAP corrected for the weakness identified by
the GAO . . . and specifically identified the manifest
imbalance in each specific minority group within which
Foreign Service ‘conal system’ (Administrative,
Consular, Economic and Political), as compared to the
more timely data for a comparator population, and
then set goals for only those underrepresented groups.”
Def.’s Reply ISO its Cross-Mot. Summ. J. 12 (“Def.’s
Reply”), Oct. 3, 2012, ECF No. 133 (citing Ex. 2 to
Def.’s Cross-Mot 46-46b, 47-47a, 50-51b, 54, 61-67).
b. Showing of a predicate of discrimination
The bare numbers only tell one side of the story. State
does rely solely on a statistical imbalance in the midand senior-levels. It has also provided evidence
regarding past discrimination in the Foreign Service
Appendix D–40
and institutional and systemic barriers to minority
advancement. State has provided enough evidence to
show a “predicate of discrimination” implying the
statistical imbalances are due in part to some past
discrimination by State, rather than simply reflecting
societal discrimination. See Hammon, 826 F.2d at 7475, 80-81.
[14] State’s hiring and promotion practices had been
the subject of many employment discrimination
lawsuits. See Underrepresentation of Women and
Minorities in the Foreign Service (statement of Rep.
Sikorski) (detailing history of discrimination suits
against State, stating: “This is not a new phenomenon.
The department has lost a lot of money in a variety of
litigation regarding discrimination.”). State, and the
Foreign Service in particular, drew the ire of Congress.
The Thomas and Bremer Reports, discussed supra,
went beyond calculating rates of minority
representation. With a particular emphasis on the
Foreign Service, the reports examined which practices
contributed to—and exacerbated—minority
underrepresentation. The reports identified systemic
and procedural barriers to minority hiring and
advancement. See Thomas Comm. Report; Bremer
Study Group Report; The Department of State in the
21st Century (prepared statement of Rep. Gerry
Sikorski). These findings were echoed by officials from
the GAO, who concluded that “some of State’s hiring,
promotion, and assignment processes have a
disproportionate effect on minorities and women.”
Underrepresentation of Women and Minorities in the
Foreign Service, (statement of Joseph Kelly, Director,
Security & Int’l Affairs Div., GAO). These reports
focused on recent issues—not, as in Hammon, issues
buried deep in the past. 826 F.2d at 77-78 (employer
Appendix D–41
may not rely on findings of discrimination from
decades ago, but should justify its plan with evidence
of more recent discrimination).
Prior to the adoption of the 1990-92 MLAAP, some
officials concluded that the Foreign Service was
“discriminatory.” For example, Rep. Sikorski,
Chairman of the House Civil Service Subcommittee,
held a hearing on September 22, 1989, titled,
“Underrepresentation of Women and Minorities in the
Foreign Service.” See Ex. 4 to Def.’s Cross-Mot. In his
introductory remarks, Rep. Sikorski called the Foreign
Service an “old-boys club,” and cited a litany of studies
and lawsuits charging the State Department with
discrimination. Id. He noted that “[t]he necessity and
extent of legal action [against State] raises serious
questions about the department’s commitment to
creating a workplace free of discrimination.” Id. For
example, from 1976 to 1986, over 240 EEO cases were
filed against State; and in 1985, 1986, and 1987 the
State Department violated a consent decree it
voluntarily entered into to settle an earlier
discrimination suit. Id. Rep. Sikorski noted that the
minorities and women who were hired into the Foreign
Service were disproportionally placed into less
prestigious jobs, from which advancement to the
senior-levels was more difficult. Id. In a later hearing,
Rep. Sikorski stated that, in addition to the findings of
the Bremer and Thomas Reports, “[i]nvestigations and
hearings conducted by the Subcommittee of the Civil
Service have also documented serious instances of
discriminatory treatment by the Foreign Service of
women, minorities, and people with handicaps.” The
Department of State in the 21st Century (prepared
statement of Rep. Gerry Sikorski) (going on to list
Appendix D–42
specific findings of discrimination in the Foreign
Service).
Several of the witnesses who appeared before the
congressional subcommittee—those with first—hand
knowledge of the workings of State—testified about
discrimination in the Foreign Service. See, e.g.,
Underrepresentation of Women and Minorities in the
Foreign Service (prepared testimony of Mary Lee
Garrison, Co-President, State Dep’t Chapter, Women’s
Action Org.) (“Instances of blatant sexism and
discrimination have declined, although some still take
place, but a simple glance at the statistics contained in
the recent GAO report . . . will confirm the continued
existence of a problem.”); Underrepresentation of
Women and Minorities in the Foreign Service (prepared
statement of Clarence E. Hodges, Member,
Management Council of the Dep’t of State) (Calling
some of State’s positions on its equal opportunity
promotion “indefensible,” citing “too little progress and
unacceptable behavior in this regard.” All around the
world, Mr. Hodges “encountered complaints of
discrimination from our employees and criticisms from
foreigners for that same discrimination as exhibited by
our predominately white male diplomatic corps.”);
Underrepresentation of Women and Minorities in the
Foreign Service (prepared testimony of Charles Hughes
Jr., Vice President for the State Dep’t Thursday
Luncheon Group) (“I entered on duty in State in late
1965 and had my first experience with discrimination,
aside from what I had experienced while stationed in
the South . . . . [W]hile there are some very good,
progressive minded people at State, there are also
those who find it much easier to deny fair treatment to
some, and thus keep faith with their peers.” * * *
“Minorities have been underrepresented purposely,
Appendix D–43
and the rationale of improperly applied statistics, have
provided the relief for the consciences of the
establishment.”).
When the Court looks at the whole picture—statistical
findings of minority underrepresentation and lower
promotion rates, history of discrimination lawsuits,
reports finding systemic flaws at State, repeated
congressional oversight and criticism, testimony from
knowledgeable witnesses that the Foreign Service was
discriminatory—it finds that State has met its
evidentiary proffer of showing a proper factual
predicate for its affirmative action plan. It has
provided enough evidence for a reasonable jury to
conclude that the MLAAP was justified by correcting a
manifest imbalance in the mid- and senior-levels of the
Foreign Service, and it served to remedy the lingering
effects of State’s past discrimination.
2. Avoiding Unnecessarily Trammeling
the Interests of Non-Minorities
Even if there is a manifest imbalance in the workplace,
State must still design and implement its affirmative
action plan in a way that does not unnecessarily
trammel the interests of non-minorities or create an
absolute bar to the advancement of nonminorities.
Weber, 443 U.S. at 208, 99 S. Ct. 2721; Hammon, 826
F.2d at 81. The plan must consider race-neutral
alternatives and be carefully tailored to remedy the
problem at hand. Hammon, 826 F.2d at 81. It must be
a temporary measure designed to “eliminate a manifest
racial imbalance” rather than “maintain a racial
balance.” Weber, 443 U.S. at 208, 99 S. Ct. 2721. The
plan should pay special attention to how it
accomplishes its goals, and the extent to which its
methods burden non-minorities. Johnson, 480 U.S.
Appendix D–44
at 616, 637-38, 107 S. Ct. 1442. Courts prefer flexible,
case-by-case approaches over rigid quota systems. See,
e.g., id. at 631-32, 107 S. Ct. 1442; Paradise, 480 U.S.
at 177-78, 107 S. Ct. 1053 (plurality opinion), 188
(Powell, J., concurring); Local 28, Sheet Metal Workers’
v. EEOC, 478 U.S. 421, 447, 106 S. Ct. 3019, 92
L.Ed.2d 344 (1986).
a. Considering alternatives to
explicit racial preferences and
narrow tailoring of the program
An important factor is the extent to which the
employer considered other ways to increase diversity in
the workplace. Cf. Hammon, 826 F.2d at 81 (“[B]ecause
available race-neutral alternatives were not
considered, the District’s race-based hiring methods
were not properly tailored to its remedial purposes.”).
An employer should strive to achieve its EEO goals
through less restrictive means such as minority
recruitment, educational programs, and training. See
Duffy v. Wolle, 123 F.3d 1026, 1039 (8th Cir. 1997)
(readily approving of efforts to increase the pool of
female and minority applicants through outreach and
recruiting programs). If the employer believes these
programs, alone, cannot yield acceptable results, it
may consider race-conscious hiring and promotion
policies. The employer should not give the race of the
applicant more “weight” than is necessary to meet the
goals. Hammon, 826 F.2d at 81 (“Johnson does nothing
to disturb the longstanding requirement that the
remedy crafted to cure a violation must be tailored to
fit the violation.” (citing Sheet Metal Workers’, 478 U.S.
421, 106 S. Ct. 3019)).
[15] State’s evidence shows it had implemented its
affirmative action plan after its past recruitment and
Appendix D–45
outreach plans were found lacking. Studies found that
State’s efforts throughout the 1980s to increase
minority representation were not satisfactory and were
progressing too slowly. See, e.g., Underrepresentation
of Minorities and Women in the Foreign Service
(prepared statement of Joseph Kelly, Director of
Security & Int’l Rel. Issues, Nat’l Security & Int’l
Affairs Div., GAO). “[T]he EEOC repeatedly pointed
out that the State Department has not had an effective
affirmative action plan or program for overcoming the
underrepresentation in the Foreign Service.” Id. at 1
(Shea—008662). The State Department adopted
minority mid-level hiring after repeated prodding by
Congress, the EEOC, and other government entities.
See generally Underrepresentation of Women and
Minorities in the Foreign Service; The Department of
State in the 21st Century.
As discussed supra, there may be some initial concerns
over whether the program was properly tailored.
Courts have expressed concern over affirmative action
plans that provide preferences to all minorities,
whether or not all of those groups were
underrepresented in the employer’s workforce. See,
e.g., Alexander v. Estepp, 95 F.3d 312, 316 (4th Cir.
1996) (invalidating, under constitutional standard,
affirmative action plan because it benefited all
minority groups rather than merely
discriminated-against African Americans). The 1990-92
MLAAP waived the “certificate of need” requirement
for some minority groups that were not found to be
underrepresented in the mid-levels. As explained in
greater detail supra, this “overinclusiveness” is not
fatal when the 1990-92 MLAAP only set minority
hiring goals where State had found a manifest
imbalance, and State had found across-the-board
Appendix D–46
minority underrepresentation in the Senior Foreign
Service. The MLAAP involved case-by-case, targeted
recruitment of exceptional minority candidates, and
considered the enhanced need for candidates from
particular minority groups and backgrounds. See, e.g.,
Ex. 1b to Def.’s Cross-Mot.
b. Whether the plan is
“temporary” in design and fact
Whether or not the affirmative action plan is
“temporary” is another important factor to consider.
Courts favor temporary plans to attain racial balance
and disfavor indefinite plans to maintain such a
balance. Plans that remain in effect long after the
employer achieves the desired balance seem less about
remedying the lingering effects of past discrimination,
and more about permanently providing special
protections to certain groups. See, e.g., Taxman v.
Board of Educ. of Tp. of Piscataway, 91 F.3d 1547,
1564 (3d Cir. 1996). Shea claims the MLAAP was not
temporary because it did not have a definite end date.
Pl.’s Mot. Summ. J. 10-11. Shea makes this argument
despite the fact that State ended the MLAAP in
February 1993 and did not replace it with a similar
affirmative action plan. Def.’s SMF ¶ 17; Pl.’s SMF
Resp. 12 (admitting Def.’s SMF ¶ 17). Cf. Hannon v.
Chater, 887 F. Supp. 1303, 1318 (N.D. Cal. 1995)
(plaintiff cannot meet burden of showing plan was not
temporary when program, in fact, ended). While courts
may require definite end dates for plans that impose
quotas or other rigid formulae, they typically do not
require such end dates for more flexible plans. See
Johnson, 480 U.S. at 639-40, 107 S. Ct. 1442 (“Express
assurance that a program is only temporary may be
Appendix D–47
necessary if the program actually sets aside positions
according to specific numbers.”).
[16] State introduced sufficient evidence to show the
MLAAP was temporary in fact and by design. When
State originally adopted the MLAAP, it stated that its
“new Mid-Level program will be a temporary
supplement to, and adjunct of, the Junior Officer
Program,” and “will be appraised annually to
determine whether it needs to be continued[.]” Ex. 1b
to Def.’s Cross-Mot. 3 (Shea—008649). In fact, the
MLAAP underwent continuous monitoring to
determine whether the plan was meeting its goals, and
whether race-based preferences continued to be
necessary to meet those goals. See 1986-87 FRAA, Pub.
L. 99-33, Title I, § 152(c) (Congress required annual
reports on the “progress being made increasing,
through advancement and promotion, the numbers of
members of minority groups and women in the
mid-levels of the Foreign Service.”); Ex. 2 to Pl.’s Mot.
(March 19, 1993 State review of the effectiveness and
continuing need for the MLAAP); Ex. 2 to Def.’s CrossMot. (indicating annual EEO audits and quarterly
tracking of progress and problem areas through EEO
Quarterly Reporting System). Close and periodic
monitoring may show that the plan was temporary. See
McNamara v. City of Chicago, 867 F. Supp. 739, 752
(N.D. Ill. 1994) (where affirmative action plan
reevaluated on annual basis in order “to insure
flexibility and to guarantee that the rations are used
only so long as they are necessary and appropriate” it
satisfies second element of Weber and Johnson); See
also Grutter v. Bollinger, 539 U.S. 306, 342, 123 S. Ct.
2325, 156 L.Ed.2d 304 (2003) (“durational requirement
can be met by sunset provisions in race-conscious
admissions policies and period reviews” to determine
Appendix D–48
ongoing need for plan). State has met its burden of
production to show that the MLAAP was a temporary
measure designed to attain—not maintain—full
minority representation.
c. Whether the plan forecloses opportunities
for non-minority hiring and advancement
[17] Another factor to consider is whether the MLAAP
forecloses opportunities for nonminority hiring and
advancement. See, e.g., Johnson, 480 U.S. at 637-38,
107 S. Ct. 1442. The MLAAP did not impose an
“absolute bar” on non-minority “advancement.” Id. At
all relevant times, State had a general mid-level hiring
program open to white males—the Mid-Level Foreign
Service Career Candidate Program. See, e.g., Exs. 1A
& 1B to Def.’s Cross-Mot. (1982 and 1987 Mid-Level
Foreign Service Career Candidate Programs). The
eligibility requirements for this program were the
same as the MLAAP, except an applicant under the
MLCCP needed an individual certification of a “need
for an outside hire at the grade and in the functional
field . . . in which the person is applying.” Ex. 2 to Pl.’s
Mot. Summ. J. 5 (March 19, 1993 Foreign Service MidLevel Hiring Program Highlights ); see also Def.’s SMF
¶¶ 10, 12-17; Pl.’s SMF Resp. 10-11 (admitting in all
relevant respects Def.’s SMF ¶¶ 10, 12-17). While the
challenged affirmative action plan was in effect,
several non-minority candidates were placed into
midlevel positions through the MLCCP. See Ex. 16 to
Def.’s Cross-Mot.; Def.’s SMF ¶¶ 27-36; Pl.’s SMF Resp.
14-16 (admitting in all relevant respects Def.’s SMF
¶¶ 27-36).
Moreover, Shea could progress to the mid-levels
through the ordinary course of promotions. The
MLAAP did not bar Shea from reaching the mid-levels
Appendix D–49
but—by Shea’s own admission—served to delay his
ascension into the mid-levels. See Pl.’s Mot. Summ. J.
27-36. Shea has, in fact, been promoted to the
mid-levels of the Foreign Service; at the time of his
Complaint, Shea was at grade FS-03, step 5. See
Compl. ¶ 6(c). Several courts have approved of plans
that delay, but do not bar, promotion opportunities.
See, e.g., Paradise, 480 U.S. at 183, 107 S. Ct. 1053
(“‘Denial of a future employment opportunity is not as
intrusive as loss of an existing job,’ and plainly
postponement [of a promotion] imposes a lesser burden
still.” (quoting Wygant, 476 U.S. at 283, 106 S. Ct.
1842)) (plurality opinion); Johnson, 480 U.S. at 638,
107 S. Ct. 1442 (“[P]etitioner had no absolute
entitlement to the” higher-level job. “Thus, denial of
the promotion unsettled no legitimate, firmly rooted
expectation on part of the petitioner. Furthermore,
while petitioner in this case was denied a promotion,
he retained his employment with the Agency . . . and
remained eligible for other promotions.”); McNamara,
867 F. Supp. at 751-52 (plan avoided unnecessarily
trammeling interests of non-minorities as it delayed,
not barred, promotion of non-minorities).
d. The nature of the plan and the extent
to which it burdened non-minorities
[18] The Court also considers the nature of the
program, and the extent to which it burdened
non-minorities. The MLAAP does “not require the
discharge of white workers and their replacement with
new black hires.” Weber, 443 U.S. at 208, 99 S. Ct.
2721. See also Wygant, 476 U.S. at 282-83, 106 S. Ct.
1842 (expressing concern about burden layoffs place on
non-minorities); Firefighters v. Stotts, 467 U.S. 561,
Appendix D–50
574-76, 104 S. Ct. 2576, 81 L.Ed.2d 483 (1984) (same).
The MLAAP involved hiring goals, and in such cases:
[T]he burden to be borne by innocent
individuals is diffused to a considerable
extent among society generally. Though
hiring goals may burden some innocent
individuals, they simply do not impose the
same kind of injury that layoffs impose.
Denial of a future employment opportunity is
not as intrusive as loss of an existing job.
Wygant, 476 U.S. at 283-83, 106 S. Ct. 1842. State’s
minority-hiring goals were not accompanied by any
minority-hiring quotas —State was not required to hire
a particular number of minorities. See Ex. 2 to Pl.’s
Mot. Summ. J. 5, (March 19, 1993 Foreign Service MidLevel Hiring Program Highlights: “Our hiring goal
each year for the affirmative action mid-level program
has been about twenty. As you will observe by the
hiring statistics . . . we have not come close to our
target.”). At no time did State bind itself to hire a
certain number of minorities each year; State noted
that it was focused the quality of its minority
candidates, not the quantity it could hire. See Ex. 1b to
Def.’s Cross-Mot. (“Success will be measured by the
quality of the future mid-level candidates hired, and
their subsequent performance in the Foreign Service,
rather than by whether or not specific numerical hiring
goals are met each year[.]”).
State thoroughly vetted minority candidates, taking far
more than their race into account. The MLAAP
required “precertification based on a file review, an
oral assessment conducted by the staff of the Board of
Examiners and the normal background investigation,
medical examination and Final Review to determine
Appendix D–51
suitability for appointment to the Foreign Service.”
Ex. 2 to Pl.’s Mot. Summ. J. 5. The MLAAP candidate
must have had a “bachelor’s degree from an accredited
college or university;” “six additional years of
professional level education and/or professional work
experience of which three years must have been in an
area related to the prospective Foreign Service
functional field;” and “supervisory/managerial skills.”
Id. The MLAAP did not assign a set “point” value to
minority status.
The MLAAP was “identical” to the more general
mid-level hiring program, except that membership in
a minority group substituted for an individual
certificate of need. Id. Once those qualified minority
candidates applied, they were subject to the same
rigorous process as nonminority applicants. See Ex. 7
to Def.’s Cross-Mot. (Nov. 1990 State document
describing the requirements and application process
for both the MLCCP and MLAAP). Cf. Johnson, 480
U.S. at 638, 107 S. Ct. 1442 (approving of plans that
“consider[ ] race along with other criteria”); Hammon,
826 F.2d at 79-80 (agreeing with Johnson’s approval of
a “‘moderate, flexible, case-by-case approach’” and
stressing need for sufficient “screening considerations”
to avoid “‘mere blind hiring by the numbers’” (quoting
Johnson, 480 U.S. at 636-37, 107 S. Ct. 1442)).9
9
Shea argues that the MLAAP is not flexible—“race
acted as an absolute bar to participation in the
MLAAP.” Pl.’s Mot. Summ. J. 5. Shea is
technically correct that he was ineligible to apply
through the MLAAP because of his race. See id.
at 4-7. Shea, however, had an opportunity to apply
for direct mid-level placement through the
MLCCP, which was substantially identical to the
Appendix D–52
MLAAP. See Ex. 7 to Def.’s Cross-Mot. (describing,
in detail, requirements of both programs). At
times, State has spoken of them as if they were
two parts of the same program:
The Mid-Level Foreign Service Career Candidate
Program is designed to hire office candidates at
the ranks of FP-3, 2 and 1 to supplement the
number of Career Foreign Service Officers already
in those grades, in accordance with the needs of
the Foreign Service. The need is either
specific—for an offer at the grade and in the cone
which an applicant is seeking to enter; or
general—for minority group members under
the Department’s Affirmative Action
Program to achieve greater representativeness in
the Foreign Service.
Id. at Shea—3448 (emphasis added). Shea’s
argument trades heavily on semantic
differences—i.e., it doesn’t matter that I was
eligible for the MLCCP, because I was ineligible
for the MLAAP—rather than focusing on the true
nature of the program, and considering whether it
unfairly shut out or burdened non-minorities.
While State was interested in increasing the number of
minority Foreign Service officers, it strongly
emphasized the quality and accomplishments of its
minority recruits. The 1990-92 MLAAP plan document
says that “State is committed to forging a workforce
that fully represents the American diversity without
sacrificing excellence.” Ex. 2 to Def.’s Cross-Mot. 61
(Shea—00140). The 1990-92 MLAAP aimed to
“emphasize selective recruiting of potential candidates
on a one-by-one basis[.]” Id. The refined plan
concentrated “on quality candidates who are
unquestionably successful in their current careers and
Appendix D–53
who have been individually recommended by people
who know both the candidate and the requirements of
the Foreign Service.” Id. This was done despite State’s
knowledge that it was “dramatically reduc[ing]” the
“number of [minority] applications processed.” Id.
State proffers evidence that it screened out many
interested minority candidates who did not meet the
requirements. Id. State submits evidence that it did
not place at least two eligible minority applicants in
mid-level positions after those candidates applied.
Decl. of Alina Eldred ¶¶ 4-11. This happened despite
the fact that State did not meet its minority hiring
goals at any time during the MLAAP. See Def.’s SMF
¶ 19 (“Despite the expressed goal of hiring 20 mid-level
minorities per year . . ., less than 6 minorities per year
were placed in the mid-levels of the Foreign Service,
totaling approximately 29 minorities (male and female)
during the five-year period of the MLAAP’s
existence.”); Pl.’s SMF Resp. 13 (admitting Def.’s SMF
¶ 19).
State has met its burden of production that it properly
tailored its affirmative action plan so that it would not
unnecessarily trammel the interests of non-minorities.
C. Shea’s Attempt to Prove that
the Affirmative Action Plan is Invalid
With State meeting its burden of production, Shea
must offer sufficient, potentially admissible10 evidence
that the MLAAP was unlawful—that State’s proffered
evidence is not worthy of credence and State illegally
discriminated against white males. If Shea fails to
raise a genuine issue of material fact with admissible
evidence, State will prevail. If there is a failure of proof
by Shea, State does not have to affirmatively and
Appendix D–54
ultimately prove that the MLAAP is lawful. See
Johnson, 480 U.S. at 627, 107 S. Ct. 1442 (employer’s
burden is one of production, not of ultimate proof);
Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 885, 110 S.
Ct. 3177, 111 L.Ed.2d 695 (1990) (“Rule 56 does not
require the moving party to negate the elements of the
nonmoving party’s case.”).
10 A “party opposing summary judgment may only
rely on evidence ‘capable of being converted into
admissible evidence at trial’ to ‘survive summary
judgment.’” A.N.S.W.E.R. Coal. v. District of
Columbia, 905 F. Supp. 2d 317, 336 n.5 (D.D.C.
2012) (quoting Greer, 505 F.3d at 1315). Evidence
that may not be admissible at trial, but is capable
of being converted into admissible evidence,
includes (for example) sworn affidavits that
themselves could run afoul of the Sixth
Amendment’s Confrontation Clause, but could be
“converted” into admissible evidence by having the
affiant testify at trial or in a deposition. See id.
(citing Gleklen v. Dem. Congressional Campaign
Comm., Inc., 199 F.3d 1365, 1369 (D.C. Cir.
2000)). With this in mind, when the Court speaks
of “admissible evidence,” it is really using that
phrase as a shorthand for “evidence that is
admissible or capable of being converted into
admissible evidence.”
1. Shea’s Calculations of the
Rate of Minority Representation
Shea’s primary evidence is that State’s numbers show
that “minorities overall were actually overrepresented
in the mid-level grades . . . by September 30, 1989.”
Pl.’s Mot. Summ. J. 3 (emphasis in original). Shea
states, “It is self-evident that when minorities are
Appendix D–55
overrepresented, the job category is not one that is
‘traditionally segregated.’ . . . [A] program is not
remedial when there is no underrepresentation to be
remedied, and [ ] it is impossible to properly tailor a
remedial program when there is no
underrepresentation to remedy.” Id. To support his
position, Shea “use[d] lots of numbers and g [ave] the
results of lots of calculations[.]” Id. at 12. Shea
describes his method thusly: First, he took the
“numbers of FSOs at each grade, broken down by race
and sex, as of September 30, 1989” from State’s FY
1990-92 FY MLAAP document. Id. at 12-13. See also
Ex. 2 to Pl.’s Mot. Summ. J. (Shea’s edited copy of the
plan, with additional charts created by Shea). Second,
he added “the numbers for male and female officers of
each race . . . to determine totals for any given race at
any given grade.” Id. at 13. He then used the NCLF
Public Administrator figures, available at page 47a of
the plan, as his comparator group. Id. (citing Ex. 2 to
Pl.’s Mot. Summ. J. at 47a (Shea—00177)). Shea again
combined the gender-specific NCLF data to provide one
total number for each racial group. Id. at 14.
Shea then performed a series of calculations comparing
white representation with minority representation. He
concludes that “whites were underrepresented in the
Foreign Service mid-level grades,” as “[w]hites
comprised 85.58 of the Foreign Service mid-level
officers” but “comprised 86.1 percent of the Public
Administrator” comparator pool. Id. at 15. Shea then
performed a series of calculations of white versus
minority group representation at various mid-level
grades, concluding that his numbers show a vast
majority of minority groups were not underrepresented
at the mid-level grades. Id. at 15-27. He did not use a
commonly-accepted method, such as the standard
Appendix D–56
deviation or the “Z statistic” method, to explain the
statistical significance of his findings. See Hazelwood
School Dist. v. United States, 433 U.S. 299, 308 n.14,
97 S. Ct. 2736, 53 L.Ed.2d 768 (1977) (standard
deviation method); Frazier v. Consolidated Rail Corp.,
851 F.2d 1447, 1451-52 (D.C. Cir. 1988) (Z statistic
method).
2. How Shea’s Analysis Differs From State’s
Congress, the GAO, and State had long railed against
the overrepresentation of white males in the Foreign
Service, especially at its mid- and senior-levels. See
supra Parts I.A., III.B. But Shea shows—using State’s
own numbers—that whites were actually under
represented in the Foreign Service mid-levels. See Pl.’s
Mot. Summ. J. 3. What explains this difference? Shea
has widened the comparator pool. Shea concedes that
white males were overrepresented, but dismisses this
fact as “irrelevant.” Pl.’s Opp’n & Reply. 7. To Shea, the
relevant question isn’t whether white males are
overrepresented, but whether whites as a whole are
overrepresented. State provided numbers broken down
by both race and gender, see generally Ex. 2 to Def.’s
Cross-Mot., but Shea combined the gender figures for
each race to determine the rates of representation by
race only, rather than by race and gender, see Pl.’s Mot.
Summ. J. 12-27. Instead of comparing white males to
white women, black males, et cetera, Shea simply
compares whites to blacks, Asians, Hispanics, et cetera.
When the numbers are looked at this way, Shea
argues, one finds that whites are actually under
represented in the mid-levels, and thus the MLAAP
cannot have any legitimate remedial purpose. Pl.’s
Mot. Summ. J. 3, 12-27.
Appendix D–57
State raises questions about Shea’s analysis, claiming
Shea “manipulated the data in his Memorandum of
Points and Authorities by combining the population of
White male employees (who were significantly
over-represented) with White female employees (who
were grossly underrepresented).” Def.’s Cross-Mot. 14.
State argues that since “the initial Congressional
mandate (comparing White males with all other
race/gender groups)” and State had “implemented
programs to address the racial/gender disparities,”
Shea’s “decision to focus on race alone makes no sense,
other than as an attempt to ‘smooth out’ the difference
and thereby ‘create’ an entirely new parameter of facts
to support his position.” Id. at 14-15.
State’s position has some support. First, the evidence
suggests that Congress was concerned specifically with
white male overrepresentation, rather than the
overrepresentation of whites generally. See, e.g., 198687 FRAA, Pub. L. 99-33; 1988-89 FRAA, Pub. L. 100204; Underrepresentation of Women and Minorities in
the Foreign Service—State Department: Hearing Before
the Subcomm. on the Civil Service of the H. Comm. on
Post Office and Civil Service, 101st Cong. (1989).
Second, State had separate programs aimed at
increasing female representation. See Def.’s SMF ¶ 4;
Pl.’s SMF Resp. (admitting Def.’s SMF ¶ 4). Third,
courts have been suspicious of efforts to distort the
data by inflating or artificially restricting the
comparator groups. See Johnson, 480 U.S. at 636, 107
S. Ct. 1442 (“[H]ad the Plan simply calculated
imbalances in all categories according to the proportion
of women in the area labor pool, and then directed that
hiring be governed solely by those figures, its validity
fairly could be called into question.”); Smith v. Virginia
Commonwealth Univ., 84 F.3d 672, 677 (4th Cir. 1996)
Appendix D–58
(“An inflated pool can undermine the validity of a
statistical study to determine imbalances.”); Reynolds
v. Sheet Metal Workers Local 102, 498 F. Supp. 952,
967-69 (D.D.C. 1980) (questioning relevance and
significance of statistical analyses that inflate number
of minorities in comparator pools).
It is not readily apparent from Shea’s summary
judgment motion why he combines males and females
to create the relevant comparator groups. This is the
Court’s best guess, based on scattered comments from
Shea’s briefs: Since the MLAAP is not open to white
women, the underrepresentation of white women is not
relevant to justifying the MLAAP. Since the MLAAP
excluded Shea because of his race, rather than his
gender, the pertinent question is whether
w h i t e s — r a t h e r t h a n w hi t e m a l e s — w e r e
overrepresented in the mid-levels of the Foreign
Service. In his opposition brief, Shea does not fully
address State’s challenges to using whites as the
comparator pool. He seems to misunderstand State’s
argument, stating: “The defense emphasis on how
‘grossly’ overrepresented white males were in 1987
seems part of an effort to convince the court to add an
element to a Title VII claim asserting a lawful
[affirmative action plan]: that the plaintiff was part of
a group that was underrepresented in the workforce.”
Pl.’s Opp’n & Reply 8. State responds that it “has never
alleged that the Plaintiff ‘lacks standing’ to raise a
claim merely because he is a member of an
over-represented group in the workplace,” and finds no
explanation as to why Shea combined white males and
females in his analysis. Def.’s Reply 5. The Court
agrees that it is not entirely clear why Shea chooses
this comparator pool.
Appendix D–59
What should be clear, however, is that Shea is
engaging in a new statistical analysis. He is changing
the comparator group that State used to justify its
affirmative action plan, and recalculating rates of
representation based on Shea’s preferred comparator
groups. State raises serious concerns about Shea’s
methods and use of comparator pools. Without deciding
whether State’s criticisms are valid, the Court notes
that the questions they raise are serious and have not
been adequately addressed by Shea, as the following
analysis will show.
3. Shea Conducts a Statistical
Analysis He is Not Competent to Perform
Essentially, Shea performs a statistical analysis of
State’s data to show that there was, in fact, no
“manifest imbalance” in the Foreign Service. Whether
or not Shea needs an expert to perform this analysis,
it is clear that Shea has not adequately explained his
methods or demonstrated the statistical significance of
his results. His analysis of State’s racial over- and
underrepresentation is not, and is not capable of being
transformed into, admissible evidence.
a. Courts demand some evidence of
the statistical significance of statistics,
often presented via an expert witness
The case law in this circuit overwhelmingly finds that
this kind of analysis requires proof as to its statistical
significance. In Frazier v. Consolidated Rail
Corporation, 851 F.2d 1447, 1450 (D.C. Cir. 1988), the
D.C. Circuit made the fundamental statement that
while the use of statistical analysis has “become
routine” and “well accepted” in discrimination cases,
“[a] statistical calculation relies on a number of
Appendix D–60
underlying assumptions, the validity of which can often
be assessed only by those with experience in the field.”
In Frazier, the plaintiffs did not use “an expert to
explain the statistical calculations to the district
court,” but submitted raw data about disparate
treatment and “several results of numerical calculation
performed by counsel.” Id. “These calculations were all
done according to widely known methods previously
reported in other discrimination cases, regulations and
commentaries” and included a “Z statistic” calculation
to explain the statistical significance of the results. Id.
While not deciding whether expert witnesses are
required for this kind of analysis, the D.C. Circuit
stressed the importance of verifying the significance of
the statistics, and upheld the district court’s
evidentiary findings:
We are not prepared to say that the Z
statistic calculation is so simple and straight
forward that an expert is never required to
explain it to a finder of fact. Nor do we wish
to be understood as holding that an expert is
always required. We leave both possibilities
open because it would be impossible to
anticipate the impact of this theory upon
every conceivable factual situation. We
believe that in the factual context of this case,
the district court made a valid finding that
the plaintiffs’ proffered statistics were not
sufficiently presented to make out a prima
facie case of adverse impact.
Id. at 1453.
Courts in this Circuit have continued to require
evidence of statistical significance—often provided by
experts—before giving any weight to proffered
Appendix D–61
statistics. In Kline v. Springer, 602 F. Supp. 2d 234,
238-39 (D.D.C. 2009), the district court succinctly
disregarded plaintiff’s assertions about the
underrepresentation of white female
underrepresentation. The Court noted that even if the
plaintiff’s “numbers were properly supported by record
evidence they would not be enough. Without additional
context, such as correctly defined pools, no reasonable
juror could infer a background of reverse
discrimination . . . from the bare numbers.” Id. at 239.
In Horvath v. Thompson, 329 F. Supp. 2d 1 (D.D.C.
2004), a pro se plaintiff in a reverse gender
discrimination suit tried to introduce self-prepared
statistics showing a manifest imbalance of white men
in the workplace. The Court found that plaintiff’s
numbers regarding the underrepresentation of males
were “simply irrelevant,” “absent a showing of their
significance[.]” Id. at 11. In that case, the plaintiff
failed to introduce sufficient evidence about “the pool
of available and qualified applicants,” and “any
measure of ‘the probability that the outcome of a
statistical analysis would have occurred by chance.’”
Id. (quoting Segar v. Smith, 738 F.2d 1249, 1282 (D.C.
Cir. 1984)). In Thomas v. Chao, 65 Fed. Appx. 321, 324
(D.C. Cir. 2003), the D.C. Circuit found that the
“District Court was correct to exclude from evidence
the list of employers identified by race and sex, and
witness’ observations about the race and sex of
employees, in the absence of an expert who could
testify that the alleged underrepresentation was
statistically insignificant.”
Appendix D–62
b. Shea’s calculations cannot withstand
the rigorous scrutiny courts in this
circuit apply to statistics in Title VII cases
The infirmity of Shea’s lay statistics is further
emphasized by the rigorous, exacting analysis courts in
this circuit have applied to this kind of statistical
evidence. See, e.g., Berger v. Iron Workers Reinforced
Rodmen Local 201, 843 F.2d 1395, 1411-23 (D.C. Cir.
1988), on rehearing 852 F.2d 619 (D.C. Cir. 1988);
McReynolds v. Sodexho Marriott Services, Inc., 349 F.
Supp. 2d 1, 8-28 (D.D.C. 2004).11 Looking at Shea’s
analysis, this Court has several fundamental,
threshold questions. Why does Shea continue to use
the 1980 numbers for the relevant comparator pool, see
Pl.’s Mot. Summ. J. 3, 12-14, even though the GAO
report containing those numbers explicitly disclaimed
their reliability, and more recent numbers were
available? See Ex. 3 to Def.’s Cross-Mot. 21
(Shea—008695). Why is it appropriate for Shea to
combine while males and while females, and
recalculate the underrepresentation figures by race
only? Isn’t Shea simply inflating the comparator group
to diminish the rate of white male overrepresentation?
How, and why, has Shea recalculated the rates of
underrepresentation? Has he done so pursuant to
standard, generally accepted procedures? Are his
results statistically significant? What is the error rate?
How does Shea measure statistical significance and
error rates?
11 This presents another way to look at this issue: In
comparison with the detailed, searching analysis
used in Berger and McReynolds, it is clear that
Shea’s statistical analysis—expert or not—cannot
pass muster.
Appendix D–63
The Court needs to answer these questions before it
can determine the relevance, reliability, and probative
value of Shea’s calculations—and thus their
admissibility. See Frazier, 851 F.2d at 1452
(“Statistical comparisons performed on data in
discrimination cases are not probative of anything
without support from an underlying statistical
theory.”). Shea does not adequately answer these
questions. “[T]he statistics must be made meaningful
to the finder of fact in order to permit the plaintiff[ ] to
carry [his] burden of showing that [his] statistics are
significant.” Id. at 1453. Even if Shea did not
necessarily need an expert to conduct his analysis—as
left open by Frazier, 851 F.2d at 1453—this Court finds
that plaintiff’s proffered statistics were not sufficiently
presented to withstand the scrutiny this Court must
apply in determining their relevance and reliability, cf.
id.
c. Shea’s analysis is not as
simple and modest as he claims
[19] Shea claims that his analysis simply relies on
numbers provided in State’s own documents. See Pl.’s
Opp’n & Reply 9-10, 13, 25. A simple examination of
plaintiff’s Exhibit 2 shows that he is not merely
pointing to State’s analysis and why it cannot support
State’s position. Instead he combines different sets of
State’s numbers—merging the figures for males and
females—and recalculating overrepresentation rates
based on what Shea thinks should be the relevant
comparator. See Ex. 2 to Pl.’s Mot. Summ. J.
(plaintiff-created charts at pages 11, 12, 13, 15, 16, 17).
He, in essence, changes the comparator groups without
a sufficient explanation for the change, and without a
background in the kinds of “pools” analysis frequently
Appendix D–64
done by statisticians in Title VII cases. See, e.g.,
Whitacre v. Davey, 890 F.2d 1168, 1172 (D.C. Cir.
1989) (requiring “evidence of the pool of available and
qualified applicants” before proffered statistics may be
considered adequate); Palmer, 815 F.2d at 91
(discussing “pools” analysis in Title VII cases); Segar,
738 F.2d at 1278 (same); McReynolds, 349 F. Supp. 2d
at 9 (same).
Shea claims that, in so recalculating the
overrepresentation numbers, he is doing simple
math—that he does not need any advanced degrees or
specialized knowledge to add, subtract, multiply, and
divide. See Pl.’s Opp’n & Reply 16-17, 25-31. Certainly,
a big part of what most statisticians do boils down to
simple math. But statisticians are not experts because
they are particularly adept at math—the Court
suspects that many use performance-enhancing
calculators. Statisticians are experts because they
know which numbers to use, and what functions to
apply to each set of numbers. In this case, the relevant
expertise is not simply applying elementary
school-level math to sets of numbers found within the
defendant’s documents. It is knowing, out of the
different sets of numbers spread throughout State’s
reports, which sets of numbers to compare and how to
compare them. It is being able to explain whether a
disparity between whites and minorities is statistically
significant, and whether the results have accounted for
“noise” that may skew the numbers. See, e.g., Berger,
843 F.2d at 1411-23; Frazier, 851 F.2d at 1452;
McReynolds, 349 F. Supp. 2d at 8-28.
Appendix D–65
d. Shea is not qualified to offer
expert or lay opinion testimony
Shea’s numbers are irrelevant without some
explanation of their significance. Shea might need an
expert to opine on the statistical significance of the
recalculated underrepresentation figures. See Chao, 65
Fed. Appx. at 324. Without even considering Shea’s
qualifications, Shea could not provide expert testimony
because he did not disclose his testimony—per Federal
Rule of Civil Procedure 26—by the deadlines imposed
by the Court. See Revised Scheduling Order 2, July 6,
2010, ECF No. 84 (setting expert deadline as
September 30, 2010). Shea had ample opportunity to
designate an expert, and was aware of the relevant
deadlines when he asked for—and
received—extensions of the expert disclosure and
discovery deadlines. See, e.g., Minute Entry, Sept. 22,
2009; Minute Entry, Dec. 18, 2009; Pl.’s Mot. for
Discovery Extension, June 28, 2010, ECF No. 81.
Shea’s unexcused and inexcusable failure to timely
designate an expert per the Court’s deadlines
disqualifies him as an “expert,” and makes his
calculations and conclusions inadmissible to the extent
they require expert testimony. Shea cannot present
“lay” opinion testimony as to the statistical significance
of his findings. Such testimony typically involves
disclosed experts and is thus not amenable to lay
expert analysis. See Fed. R. Evid. 701(c) (forbidding lay
opinion testimony “based on scientific, technical, or
other specialized knowledge within the scope of
Rule 702”). Lay opinion testimony “‘is limited to those
opinions or inferences which are (a) rationally based on
the perception of the witness and (b) helpful to a clear
understanding of the witness’ testimony or the
determination of a fact in issue.’” United States v.
Appendix D–66
Williams, 212 F.3d 1305, 1310 n.6 (D.C. Cir. 2000)
(quoting pre-2011 amendment wording of Fed. R. Evid.
701 1 2 ). Shea’s opinions on the rates of
overrepresentation are not based on his own
perceptions and feelings, or his personal knowledge
and experience. He has not attained “specialized
knowledge . . . through experience rather than
scientific or technical training,” and is not testifying
“based solely on personal experience with the case at
issue.” Armenian Assembly of Am. v. Cafesjian, 746 F.
Supp. 2d 55, 65 (D.D.C. 2010). Therefore, his testimony
therefore would not be admissible as “lay opinion” or
“lay expert” testimony under Rule 701. Cf. Barnes v.
District of Columbia, 924 F. Supp. 2d 74, 82-86, 2013
WL 541148, *6-*9 (D.D.C. 2013) (discussing
admissibility of lay opinion testimony).
12 The 2011 changes made to Rule 701 were
“intended to be stylistic only” and were not
intended “to change any result in any ruling on
evidence admissibility.” Fed. R. Evid. 701 advisory
committee’s note.
e. Even if no expert is needed, Shea has
failed to adequately explain his methods
and the statistical significance of his results
[20] [21] Even if this kind analysis would not require
an expert, per se, Shea has failed to properly defend
his analysis. “Statistical comparisons performed on
data in discrimination cases are not probative of
anything without support from an underlying
statistical theory.” Frazier, 851 F.2d at 1452. Simply
presenting numbers and comparisons to the Court is
not sufficient. See Saunders v. White, 191 F. Supp. 2d
95, 133 (D.D.C. 2002); Hatcher-Capers v. Haley, 786 F.
Supp. 1054, 1063-64 (D.D.C. 1992). The party offering
Appendix D–67
the statistics must articulate how the data should be
interpreted and why it supports the party’s position.
Saunders, 191 F. Supp. 2d at 133. The party must
“demonstrate that the data [ ]he offers is statistically
significant,” Haley, 786 F. Supp. at 1063, and explain
how the numbers reflect discrimination (or a lack
thereof) rather than, for example, “incomprehensive
statistical treatment, varying levels of qualifications
among applicants, errors in definition or groups,
inappropriate sampling methods, errors in
measurement, or even clerical and computational
errors,” Frazier, 851 F.2d at 1452.
As in Frazier, id. at 1453, Shea’s statistics are not
“sufficiently presented;” Shea cannot explain his
methods and assumptions such that his statistics are
“meaningful to the trier of fact in order to permit” him
to carry his burden of “showing that [his] statistics are
significant.”13 He inflates the comparator pool without
an adequate justification for using this larger pool. He
provides no explanation of whether his recalculated
rates of overrepresentation are statistically significant,
per any generally accepted measure. He does not even
attempt a standard deviation or “Z statistic”
calculation. He does not even reference—let alone
explain how he relied on—“widely known methods
previously reported in other discrimination cases,
regulations, and commentaries.” Id. at 1450. He gives
the Court none of the information it would need to
make a threshold determination of the relevance,
reliability, and admissibility of his amateur statistics.
13 From the D.C. Circuit’s description, the
non-expert statistics Frazier found to be
insufficiently presented appear to be much more
Appendix D–68
detailed than the analysis offered by Shea. 851
F.2d at 1450-54.
Courts often give pro se litigants more slack than
represented parties—for example, Courts may be more
generous in construing pro se complaints when
considering a motion to dismiss. See generally Pettaway
v. United States, 390 A.2d 981, 984 (D.C.1978) (“We
have a duty to be indulgent of pro se pleadings.”). This
generosity does not extend, however, to allowing Shea
to provide his own opinions where expert testimony is
needed, or subjecting Shea’s statistical methods to far
less scrutiny than any other litigant would face.
f. State is not required to offer
expert testimony to meet its burden
Shea argues that it is unfair to ask him to use experts
to show that a manifest imbalance did not justify the
MLAAP, but not require State to use experts to show
that there was such a manifest imbalance. Pl.’s Opp’n
& Reply 7-8, 31-35. Requiring State—as a condition of
meeting its burden of production—to retain outside
experts to verify that State designed the MLAAP to
correct for a manifest imbalance would severely
undermine the allocation of burdens established in
McDonnell Douglas and Johnson. Johnson, read
liberally, might suggest that the mere production of an
affirmative action plan could meet the employer’s
burden under McDonnell Douglas. See 480 U.S. at 627,
107 S. Ct. 1442 (“Once a plaintiff establishes a prima
facie case that race or sex has been taken into account
in an employer’s employment decision, the burden
shifts to the employer to articulate a nondiscriminatory
rationale for its decision. The existence of an
affirmative action plan provides such a rationale. If
such a plan is articulated as the basis for the
Appendix D–69
employer’s decision, the burden shifts to the plaintiff to
prove that the employer’s justification is pretextual
and the plan is invalid.”). State has done more than
simply point to its affirmative action plan—it has
provided evidence indicating its plan is lawful, justified
by a need to remedy a manifest imbalance, and
properly tailored to those ends. However, by
submitting this evidence, State does not admit that it
“carr[ies] the burden of proving the validity of the plan.
The burden of proving its invalidity remains on the
plaintiff.” Id. at 627-28, 107 S. Ct. 1442.
The Court admits that the law is not precise on exactly
how much evidence an employer must offer to defend
its affirmative action plan. Cf. 2 Lindemann, Grossman
& Weirich, Employment Discrimination Law 2506-07
(“On the fact-specific issue as to what evidence is
needed to prove discrimination sufficient to undertake
affirmative action, however, the lower courts have not
taken a consistent approach.”). Nevertheless, wherever
the exact location of the “line” is, the Court is confident
(as discussed supra in Part III.A.) that State’s
proffered evidence goes far beyond that line. Under
current precedent—Johnson and its progeny—an
employer is not necessarily required to provide expert
testimony to meet its burden of production.
The reports from the State Department, congressional
subcommittees, and the GAO—created during the
normal course of business—could be sufficient to
establish the required “manifest imbalance” and
“predicate of discrimination.” See supra Part.III.B.
(detailing evidence introduced by State). To
authenticate and discuss the content of these reports,
the defendant would not necessarily need expert
witnesses, or treat its party witnesses as such. See
Appendix D–70
Barnes, 924 F. Supp. 2d at 83-84, 2013 WL 541148,
at *7 (defendant’s contemporaneously-created reports
on the rates of prisoner overdetentions “are not expert
reports,” but “business records—created not in
anticipation of litigation, but in the normal course of
business—that do not require a Rule 26(a)(2)
designated expert to authenticate them”); cf. National
R.R. Passenger Corp. v. Railway Express, LLC, 268
F.R.D. 211, 214-15 (D. Md. 2010) (party employees may
be required to provide expert disclosures if employee
witness renders opinions on matters outside the
normal scope of their employment or the employer
retains or specially employs them to testify). As
properly authenticated business records, these reports
and documents could justify the MLAAP without the
need for experts.
4. Shea’s Evidence that the MLAAP Forecloses
Advancement Opportunities for Non-Minorities
Shea argues that the MLAAP, in effect, forecloses
advancement opportunities for non-minorities. Shea
claims he “was not aware of any mid-level hiring
program that non-minorities were eligible for when
[he] applied for a job with the Foreign Service in
1990[.]” Pl.’s Opp’n to Def.’s Second Mot.
Reconsideration 41, Apr. 12, 2011, ECF No. 95. While
Shea’s subjective knowledge of the MLCCP may be
relevant to mitigation of damages, it is not relevant in
considering the legality of the MLAAP, as it is
undisputed that such a general mid-level hiring
program existed. Def.’s SMF ¶¶ 9-12, 22; Pl.’s SMF
Resp. 10-13 (admitting Def.’s SMF ¶¶ 9-12, 22).
Nevertheless, Shea claims that the MLCCP would have
done him no good, as State was not issuing certificates
of need for his particular area of expertise. Shea says
Appendix D–71
that no certificates of need were issued between
January 1990 and the date he began with State,
May 31, 1992. Pl.’s Opp’n & Reply 35. Shea continues,
“The first mid-level white hiring comes on October 19,
1992—after I had started my employment with State.”
Id. In support of this position, Shea cites defense
exhibit 16 (ECF No. 128-18), a chart entitled “MidLevel Hiring 1990 to 1994.” This chart shows that
State first hired Caucasian as a mid-level on October
19, 1992.14
14 This, of course, does not mean there were no white
mid-level hires prior to October 1992. Construing
this chart, the Court draws all reasonable
inferences in favor of Shea, and does feel the need
to address whether there were non-minority
mid-level hires prior to this date.
Elsewhere State argues, “Due to the passage of
time cause by Plaintiff’s nine-year delay in
bringing this action and the resulting loss of
records, Defendant is unable to tell if any
certificates of need were issued by the State
Department in the fiscal years 1990 and 1991.”
Def.’s Cross-Mot. 26 n.16. Since this is merely the
ipse dixit of counsel, unsupported by a sworn
affidavit or admissible evidence, the Court ignores
this argument entirely and focuses on what can
actually be shown by the evidence. See
A.N.S.W.E.R. Coal. v. District of Columbia, 905 F.
Supp. 2d 317, 334-36 (D.D.C. 2012) (unsworn
statements of counsel, unsupported by the
evidence, is evidence of nothing at the summary
judgment stage) (citing Schoch v. First Fidelity
Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990);
Int’l Distrib. Corp. v. Am. Dist. Tel. Co., 569 F.2d
136, 139 (D.C. Cir. 1977)).
Appendix D–72
This chart does not show that no certificates of need
were being issued—or that it was impossible to receive
such a certificate —when Shea applied. Certificates of
need, as prerequisites to applying for a mid-level
position, must be issued some time before an applicant
is hired. Exs. 1A & 1B to Def.’s Cross-Mot. (1982 and
1987 Mid-Level Foreign Service Career Candidate
Programs). Consider the case of Patricia Haslach,
whom Shea cites as the nonminority candidate hired
on October 19, 1992. Pl.’s Opp’n & Reply 35. According
to a letter from Haslach to State, Haslach inquired
about the MLCCP as early as December 12, 1990.
Ex. 17 to Def.’s Cross-Mot. (Shea—07538). On
January 10, 1991, Haslach applied for a mid-level
position, id.; apparently it took approximately 22
months for her to be hired at State, see Def.’s SMF
¶¶ 28, 30-32; Pl.’s SMF Resp. 14-15 (admitting Def.’s
SMF ¶¶ 28, 30-32). This shows that simply because no
white mid-levels were hired until a few months after
Shea entered State, this does not mean no certificates
of need were issued until after Shea entered State.
Shea next cites a November 30, 1992, memorandum
sent to the State Department Director General titled,
“Minority Recruitment and Hiring.” Ex. 1 to Pl.’s Opp’n
& Reply, ECF No. 123-1. The memo states that “at
present,” State was then “able to certify mid-level need
for admin, econ, and science officers at the 02 and 03
levels, and consular officers at the 02 levels.” Ex. 1 to
Pl.’s Opp’n & Reply (Shea—03765). To Shea this means
State was not issuing certificates for consular officers
at grade FS-3—the position he would have been
interested in and qualified for—and therefore he was
effectively shut out of the MLCCP. See Pl.’s Opp’n &
Reply 37. However, this conclusion does not follow from
the memorandum. First, the memo only concerns
Appendix D–73
certificates of need as of November 1992, and says
absolutely nothing about the availability of consular
certificates prior to that date. In fact, prior to
November 1992, State did approve of certificates of
need for FS-03 consular officers. See Ex. 10 to Def.’s
Cross-Mot. (on May 14, 1992, approving of FS-03
consular certificates of need) (Shea—07372). This May
1992 State document undermines Shea’s interpretation
of the November 1992 memorandum—simply because
FS-03 consular certificates were not available in
November 1992 does not mean they were not available
earlier, while Shea was applying for a position.
Overall, Shea does not present sufficient evidence to
infer that was completely shut out of the MLCCP or
did not have an opportunity to reach the mid-levels. By
his own admission, Shea never inquired about the
MLCCP, requested a certificate of need, or applied to
the program. Def.’s SMF ¶ 22; Pl.’s SMF Resp. 13
(admitting Def.’s SMF ¶ 22); Pl.’s Opp’n to Def.’s
Second Mot. Reconsideration 41. Applying for, and
being rejected from, mid-level placement would be the
clearest evidence that he was not eligible for mid-level
placement. At this point, Shea’s evidence is speculative
at best and not sufficient to overcome State’s
evidentiary proffer.
IV. CONCLUSION
The role of a district court is to ascertain and apply the
law as it is, not as the Court thinks it should be. This
Court finds that the Supreme Court’s majority opinion
in Johnson v. Transportation Agency, Santa Clara
County, 480 U.S. 616, 107 S. Ct. 1442, 94 L.Ed.2d 615
(1987)—as it has been interpreted and applied in this
Circuit—provides the controlling standard for
analyzing Title VII challenges of affirmative action
Appendix D–74
plans. Under Johnson, after the plaintiff has made a
prima facie claim of racial discrimination, the
defendant must only meet a burden of production—not
persuasion—that it acted pursuant to a legal
affirmative action plan. The ultimate persuasive
burden is, at all times, on the plaintiff to prove that the
affirmative action plan was unlawful. Under this
standard, Shea has failed to provide sufficient,
admissible evidence that State’s affirmative action
plan was not justified by a manifest imbalance in the
workforce or properly tailored to achieve remedial
goals. In particular, Shea’s amateur statistics
regarding the rates of minority representation in the
Foreign Service would be inadmissible, as Shea
provides no evidence as to the statistical significance of
his results. Since Shea cannot prove an essential
element of his claim, and has had a full and fair
opportunity obtain relevant discovery, the State
Department is entitled to summary judgment on
Shea’s remaining claim.
For Shea, this may be a less than satisfying end to this
long-running case. This Court is, in some ways,
sympathetic. The Court wonders why it is harder to
challenge an affirmative action plan under Title VII
than under the Constitution. When challenging
affirmative action under the Equal Protection Clause,
strict scrutiny applies and the defendant has the
ultimate burden of explaining why it was necessary to
treat people differently based on their race. But when
the challenge is under Title VII, we make the plaintiff
ultimately prove that race-based discrimination is
illegal.15 The Court questions the wisdom of looking to
legislative history to create a textual ambiguity, rather
than resolve one—carving out exceptions from a clear
mandate not to discriminate because we imagine what
Appendix D–75
legislators would have done, rather than focus on what
they actually did. 16 Our affirmative action
jurisprudence—both
statutory
and
constitutional—operates under the assumption that
unambiguous mandates not to discriminate based on
race somehow apply with less force to members of the
“majority.”
15 See Johnson, 480 U.S. at 626-27, 107 S. Ct. 1442
(providing Title VII McDonnell Douglas burden
shifting standard for analyzing affirmative action
plans); Wygant, 476 U.S. at 273, 106 S. Ct. 1842
(providing constitutional strict scrutiny standard
for analyzing affirmative action plans); Johnson,
480 U.S. at 627 n.6, 107 S. Ct. 1442 (majority
opinion clarifying that statutory procedure for
analyzing affirmative action plans is indeed
different from the constitutional test); Stewart,
948 F. Supp. at 1093 (“The standard for
determining whether affirmative relief is justified
under Title VII is less stringent than under the
Constitution.”).
16 Our affirmative action jurisprudence has its
origins in the backwards idea that the “spirit” of a
law somehow trumps its plain and unambiguous
letter. In Weber and Johnson, the Supreme Court
somehow found—in plain language barring racial
discrimination—an out to give racial preferences
to minority groups. Certainly, the Court thought,
it would be absurd for a law barring racial
discrimination not to allow some. See generally
Johnson, 480 U.S. at 657-77, 107 S. Ct. 1442
(Scalia, J., dissenting). The Court is reminded of
Chief Justice Roberts’ incisive statement: “The
way to stop discrimination on the basis of
Appendix D–76
race is to stop discriminating on the basis of
race.” Parents Involved in Cmty. Sch. v. Seattle
Sch. Dist. No. 1, 551 U.S. 701, 748, 127 S. Ct.
2738, 168 L.Ed.2d 508 (2007) (Roberts, C.J.,
concurring) (emphasis added).
While the tide may be turning against this approach to
affirmative action, it has yet to directly reach
Johnson’s Title VII standard.17 Much of the doubt
about our present affirmative action jurisprudence has
been consigned to dissents, noncontrolling
concurrences, dictum, and scholarly critiques.18 Absent
a clear statement from the Supreme Court or the Court
of Appeals that Johnson no longer governs, this Court
must apply its principles. Therefore, Shea’s Title VII
challenge to State’s affirmative action plan must fail,
and State is entitled to summary judgment. This
constitutes final judgment in this action, and the Court
dismiss this case with prejudice.
17 Many—including Judge Robertson in this case,
Mem. Order 8 n. 3, Aug. 11, 2009, ECF
No. 69—have questioned the continuing viability
of Johnson and other affirmative action precedent
in light of Ricci v. DeStefano, 557 U.S. 557, 129 S.
Ct. 2658, 174 L.Ed.2d 490 (2009). See, e.g.,
Marcia L. McCormick, Disparate Impact and
Equal Protection After Ricci v. DeStefano, 27 Wis.
J.l. Gender & Soc’y 100 (2012); Roberto L.
Corrada, Ricci’s Dicta: Signaling a New Standard
for Affirmative Action Under Title VII?, 46 Wake
Forest L. Rev. 241 (2011); Sachin S. Pandya,
Detecting the Stealth Erosion of Precedent:
Affirmative Action After Ricci, 31 Berkeley J.
Emp. & Lab. l. 285 (2010). However, as these
articles indicate, nothing in Ricci directly
Appendix D–77
overturns or modifies Johnson, at least as it
applies to this case. The arguments are that Ricci
has dicta signaling that the Supreme Court will
change course on affirmative action in the future.
This Court cannot depart from long-standing,
clear precedent based on such speculation.
Many also thought—including this Judge in
Stewart, 948 F. Supp. at 1094-95—there would be
a significant change to affirmative action
jurisprudence after City of Richmond v. J.A.
Croson Co., 488 U.S. 469, 109 S. Ct. 706, 102
L.Ed.2d 854 (1989) and Adarand Constructors,
Inc. v. Pena, 515 U.S. 200, 115 S. Ct. 2097, 132
L.Ed.2d 158 (1995). See, e.g., Margaret A. Sewell,
Adarand Constructors, Inc. v. Pena: The
Armageddon of Affirmative Action, 46 Depaul L.
Rev. 611 (1997); Lara Hudgins, Rethinking
Affirmative Action in the 1990s: Tailoring the Cure
to Remedy the Disease, 47 Baylor L. Rev. 815
(1995); John Payton, The Meaning and
Significance of the Croson Case, 1 Geo. Mason U.
Civ. Rts. L.J. 59 (1990). This has yet to pass, as in
the years since Croson and Adarand, the Supreme
Court has yet to overrule Johnson and Weber. Cf.
Neal Devins, Adarand Constructors, Inc. v. Pena
and the Continuing Irrelevance of Supreme Court
Affirmative Action Decisions, 37 Wm. & Mary L.
Rev. 673 (1996) (arguing neither Croson or
Adarand had effect many expected). Others still
thought that Parents Involved, 551 U.S. 701, 127
S. Ct. 2738 (2007), sounded the death kneel for
affirmative action. See Katherine M. Planer, The
Death of Diversity? Affirmative Action in the
Workplace After Parents Involved, 39 Seton Hall L.
Rev. 1333 (2009). While not much may be clear
Appendix D–78
about affirmative action, the reports of its demise
have been greatly exaggerated. Cf. Frank
Marshall White, Mark Twain Amused/Humorist
Says He Even Heard on Good Authority That He
Was Dead, N.Y. Journal, June 2, 1897, at 1,
reprinted in MARK TWAIN: THE COMPLETE
INTERVIEWS 317-18 (Gary Scharnhorst ed., 2006).
18 See, e.g., Ricci, 557 U.S. at 594-97, 129 S. Ct. 2658
(Scalia, J., concurring); Johnson, 480 U.S. at 65777, 107 S. Ct. 1442 (Scalia, J., dissenting); Hill v.
Ross, 183 F.3d 586, 588 (7th Cir. 1999); Stewart,
948 F. Supp. at 1094-95 (Lamberth, J.); Finch v.
City of Indianapolis, 886 F. Supp. 2d 945, 961 &
n.15 (S.D. Ind. 2012); Thomas Sowell, Black
Education: Myths and Tragedies 292 (1972);
Ryan M. Peck, Title VII is Color Blind: The Law of
Reverse Discrimination, 75 J. Kan. B.A. 20 (June
2006); Kathryn A. Sampson, Negotiating a
Slippery Slope: Voluntary Affirmative Action After
Johnson, 14 J. Corp. L. 201 (1988); Charles
Murray, Affirmative Racism, THE NEW REPUBLIC,
Dec. 31, 1984, at 18.
A separate Order consistent with this Memorandum
Opinion shall issue this date.
Appendix E–1
42 U.S.C.A. § 2000e-16
§ 2000e-16. Employment by Federal Government
(a) Discriminatory practices prohibited; employees or
applicants for employment subject to coverage
All personnel actions affecting employees or applicants
for employment (except with regard to aliens employed
outside the limits of the United States) in military
departments as defined in section 102 of Title 5, in
executive agencies as defined in section 105 of Title 5
(including employees and applicants for employment
who are paid from nonappropriated funds), in the
United States Postal Service and the Postal Regulatory
Commission, in those units of the Government of the
District of Columbia having positions in the
competitive service, and in those units of the judicial
branch of the Federal Government having positions in
the competitive service, in the Smithsonian Institution,
and in the Government Publishing Office, the
Government Accountability Office, and the Library of
Congress shall be made free from any discrimination
based on race, color, religion, sex, or national origin.
(b) Equal Employment Opportunity Commission;
enforcement powers; issuance of rules, regulations,
etc.; annual review and approval of national and
regional equal employment opportunity plans; review
and evaluation of equal employment opportunity
programs and publication of progress reports;
consultations with interested parties; compliance with
rules, regulations, etc.; contents of national and
regional equal employment opportunity plans;
authority of Librarian of Congress
Appendix E–2
Except as otherwise provided in this subsection, the
Equal Employment Opportunity Commission shall
have authority to enforce the provisions of subsection
(a) of this section through appropriate remedies,
including reinstatement or hiring of employees with or
without back pay, as will effectuate the policies of this
section, and shall issue such rules, regulations, orders
and instructions as it deems necessary and appropriate
to carry out its responsibilities under this section. The
Equal Employment Opportunity Commission shall—
(1) be responsible for the annual review and
approval of a national and regional equal employment
opportunity plan which each department and agency
and each appropriate unit referred to in subsection (a)
of this section shall submit in order to maintain an
affirmative program of equal employment opportunity
for all such employees and applicants for employment;
(2) be responsible for the review and evaluation of
the operation of all agency equal employment
opportunity programs, periodically obtaining and
publishing (on at least a semiannual basis) progress
reports from each such department, agency, or unit;
and
(3) consult with and solicit the recommendations
of interested individuals, groups, and organizations
relating to equal employment opportunity.
The head of each such department, agency, or unit
shall comply with such rules, regulations, orders, and
instructions which shall include a provision that an
employee or applicant for employment shall be notified
of any final action taken on any complaint of
discrimination filed by him thereunder. The plan
Appendix E–3
submitted by each department, agency, and unit shall
include, but not be limited to—
(1) provision for the establishment of training and
education programs designed to provide a maximum
opportunity for employees to advance so as to perform
at their highest potential; and
(2) a description of the qualifications in terms of
training and experience relating to equal employment
opportunity for the principal and operating officials of
each such department, agency, or unit responsible for
carrying out the equal employment opportunity
program and of the allocation of personnel and
resources proposed by such department, agency, or
unit to carry out its equal employment opportunity
program.
With respect to employment in the Library of
Congress, authorities granted in this subsection to the
Equal Employment Opportunity Commission shall be
exercised by the Librarian of Congress.
(c) Civil action by employee or applicant for
employment for redress of grievances; time for bringing
of action; head of department, agency, or unit as
defendant
Within 90 days of receipt of notice of final action taken
by a department, agency, or unit referred to in
subsection (a) of this section, or by the Equal
Employment Opportunity Commission upon an appeal
from a decision or order of such department, agency, or
unit on a complaint of discrimination based on race,
color, religion, sex or national origin, brought pursuant
to subsection (a) of this section, Executive Order 11478
or any succeeding Executive orders, or after one
hundred and eighty days from the filing of the initial
Appendix E–4
charge with the department, agency, or unit or with
the Equal Employment Opportunity Commission on
appeal from a decision or order of such department,
agency, or unit until such time as final action may be
taken by a department, agency, or unit, an employee or
applicant for employment, if aggrieved by the final
disposition of his complaint, or by the failure to take
final action on his complaint, may file a civil action as
provided in section 2000e-5 of this title, in which civil
action the head of the department, agency, or unit, as
appropriate, shall be the defendant.
(d) Section 2000e-5(f)
through (k) of this title
applicable to civil actions
The provisions of section 2000e-5(f) through (k) of this
title, as applicable, shall govern civil actions brought
hereunder, and the same interest to compensate for
delay in payment shall be available as in cases
involving nonpublic parties.1
(e) Government agency or official not relieved of
responsibility to assure nondiscrimination in
employment or equal employment opportunity
Nothing contained in this Act shall relieve any
Government agency or official of its or his primary
responsibility to assure nondiscrimination in
employment as required by the Constitution and
statutes or of its or his responsibilities under Executive
Order 11478 relating to equal employment opportunity
in the Federal Government.
(f) Section 2000e-5(e)(3) of this title applicable to
compensation discrimination
1
So in original.
Appendix E–5
Section 2000e-5(e)(3) of this title shall apply to
complaints of discrimination in compensation under
this section.