940 F.2d 1394 (11th Cir. 1991), 88-5496, Peightal v. Metropolitan Dade County

Docket Nº:88-5496.
Citation:940 F.2d 1394
Party Name:Alan A. PEIGHTAL, Plaintiff-Appellant, v. METROPOLITAN DADE COUNTY, Metropolitan Fire Department of Dade County, Defendants-Appellees.
Case Date:September 04, 1991
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1394

940 F.2d 1394 (11th Cir. 1991)

Alan A. PEIGHTAL, Plaintiff-Appellant,

v.

METROPOLITAN DADE COUNTY, Metropolitan Fire Department of

Dade County, Defendants-Appellees.

No. 88-5496.

United States Court of Appeals, Eleventh Circuit

September 4, 1991

        Alexander Kapetanakis, Miami, Fla., for plaintiff-appellant.

        John McInnis, Dade County Attorney's Office, Miami, Fla., for defendants-appellees.

        Appeal from the United States District Court for the Southern District of Florida.

        Before TJOFLAT, Chief Judge, JOHNSON, Circuit Judge, and BROWN [*], Senior Circuit Judge.

        JOHN R. BROWN, Senior Circuit Judge:

Foreword

        As the Court is divided on the question of whether Croson requires remand to the District Court to determine whether there is a violation of the Equal Protection Clause, this opinion 1 is constructed sharply to delineate the difference.

        The Court is together on Parts I, II and III. In Part IV, the Court parts company. Judge Brown, in what is essentially his dissenting opinion, articulates why he is of the opinion that a remand on Equal Protection is not necessary and why, if Croson applies to determination of Title VII, Croson-

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is fully met. Chief Judge Tjoflat and Judge Johnson do not concur in Part IV, believing as they do that determining whether under Croson the Metro Dade plan violates the Equal Protection Clause, should be remanded to the District Court for its consideration in light of Croson. Chief Judge Tjoflat, concurring with Judge Johnson, writes additionally.

        Judge Brown and Judge Johnson agree on Part V that the plan is not invalid under Title VII. Chief Judge Tjoflat dissents separately on this part. The result is that the judgment of the District Court on Title VII is affirmed. The question whether under Croson the plan violates the Equal Protection Clause is remanded.

Introduction

        Alan Peightal (Peightal) brings an individual (non-class action) reverse discrimination claim against appellee Metropolitan Dade County (Metro Dade) because the Dade County Fire Department (Fire Department or Department) hired minorities who scored lower than Peightal on the applicant exam, but did not hire Peightal. When Peightal applied for a job as a firefighter, the Fire Department was hiring pursuant to an affirmative action plan (Plan) which sought to redress a statistical imbalance between the percentage of minorities 2 in the Department and the percentage of minorities in the general population. The district court upheld the Plan against Peightal's claim that it violated Title VII and the Equal Protection Clause of the United States Constitution. We affirm in part; vacate and remand in part.

       I.

Facts and Proceedings Below

        On October 18, 1983, Peightal, a white male, applied for a position as a firefighter with the Fire Department. Peightal took the firefighter examination in October of 1983 along with 3,300 others. Peightal's score of 98.25 earned him a rank of 28 out of 2,188 persons who passed the test. 3

        As the trial court found, when Peightal applied in October 1983, the Fire Department was hiring pursuant to a minority preference program that called for the selection of female, black and Hispanic applicants in accordance with certain goals established for the purpose of increasing the representation of these groups. Before adopting the Plan, Metro Dade 4 conducted an analysis of the Fire Department's work force which revealed that in 1965 the Department employed 121 firefighters, all but one of whom were white males, compared

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to a general population that was 69% white, 15% black, 16% Hispanic and 52% female. By 1975, the Fire Department had grown to 499 firefighters, of whom 89% were white, 8% were black, 3% were Hispanic and none was female, compared to a general population that was 52% white, 16% black, 32% Hispanic and over 50% female. By 1983, when the Plan at issue herein was implemented, the number of firefighters in the Department had increased to 921, of whom 74.9% were white, 11.8% were black, 13.8% were Hispanic and 1.3% were female, compared to a general population that was 47% white, 17.3% black, 35.8% Hispanic and over 50% female. 5

        The district court found that once the applicants took the examination, their respective scores were grouped and ranked by the applicants' particular classification as defined by the Fire Department pursuant to the Plan. The following six categories were used: (i) Black Males, (ii) Black Females, (iii) White Females, (iv) Hispanic Males, (v) Hispanic Females, and (vi) White Males. All applicants were scored and ranked only against those other members of the category. For example, a Black Male's test score would be ranked only against the score of another member of the class of Black Males taking the examination; the score of a White Male applicant such as Peightal would not be ranked against the score of any non-"White Male" applicant.

        The district court found that although the position of firefighter is described as "specialized work in the protection of life and property," the position is nevertheless an "entry-level" one, as "there are no specialized skills per se which must be possessed in order to obtain the position." 6 Accordingly, the trial court ruled that "a comparison between the Fire Department's work force and the labor market is appropriate." 7

        The stated long-term goal of the Department's Plan was "to attain parity [between the Department's work force and] the population." 8 The Plan made a distinction between two kinds of employees for the purpose of determining hiring goals. For professional and administrative positions, Metro Dade sought to achieve the same percentage

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of female and minority employees as existed in the available qualified labor force. 9 For the other category of employees, which included Protective Services (Firefighters), Para-Professionals, Office Clerical, Skilled Craftsmen and Service Maintenance, the Plan called for the usage of a "70% rule." According to the Metro Dade "Affirmative Action Policy and Statement: Goals and Timetables:"

[e]ssentially what the 70% rule says is that a significant disparity between minority representation in the service population, in our case, that is Metro Dade's departments and divisions, may be deemed to exist if the percentage of a particular minority group in the department/agency is not at least 70% of the percentage of that minority in the service population. (Our emphasis.)

        Applying the 70% rule to Metro Dade population statistics, the Fire Department determined that its hiring goals for 1983 should include 44 whites, 23 blacks, 37 Hispanics, and 23 females. 10 As a result of the Department's hiring from the 1983 examination, the following recruits were hired from 1983 to 1985: (i) 23 White Males, (ii) 12 White Females, (iii) 18 Black Males, (iv) 5 Black Females, (v) 24 Hispanic Males, and (vi) 4 Hispanic Females. The total figure hired was 86 persons; and 51 of these scored lower than Peightal on the 1983 examination. Nevertheless, Peightal was not hired.

        In March of 1986, Peightal found out that he had been taken off the "stand by" list of applicants and had not been hired due to the Plan. Peightal filed an Equal Employment Opportunity Commission (EEOC) Complaint alleging racial discrimination. On August 12, 1986, the EEOC denied Peightal's charge and found that Metro Dade's actions were done in accordance with an affirmative action plan but issued Peightal a "right to sue" letter which permitted him to file this present suit.

        On November 21, 1986, Peightal filed a complaint under 42 U.S.C. Sec. 1983 11 and Title VII of the Civil Rights Act of 1964 against Dade County and the Department. Peightal sought injunctive relief against Dade County for its preferential hiring treatment of minorities, and back wages

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from the time period which he should have been hired had Dade County's hiring practices not been in effect. 12

        On December 19, 1986, Metro Dade 13 filed its answer alleging its dependence and reliance upon the Plan and offered the specific defense that the denial to Peightal of any position of employment was due to its "legitimate affirmative action program," and that Dade County was exempt from liability on the ground that it adopted the EEOC regulations for the challenged Plan. Metro Dade also asserted that 42 U.S.C. Sec. 1983 was not a valid remedy when the Title VII remedy was available and that Peightal had not timely filed his claim under Title VII for discrimination.

        A non-jury trial was held in January 1988 with the issue of damages to be determined at a later date after the liability issues were determined.

        In April 1988, Peightal appealed the judgment in favor of Metro Dade.

       II.

The Constitutionality of Government-Sponsored Minority

Preference Programs

        On January 23, 1989, the Supreme Court issued its landmark Croson decision in City of Richmond v. J.A. Croson Co., 488 U.S. 469, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989) on the constitutionality of government-sponsored minority preference programs. 14 Since the district court handed down the opinion in the case sub judice on April 25, 1988, it was obviously unable to give detailed consideration to Croson. On appeal, however, it is our duty to apply the law as it exists when we deliver our opinion, even if it has changed since the time of a lower court decision. 15 Thorpe v. Housing Auth. of City of Durham, 393 U.S. 268, 281, 89 S.Ct. 518, 526, 21 L.Ed.2d 474, 483 (1969). See also Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 486 n. 16, 101 S.Ct. 2870, 2879 n. 16, 69 L.Ed.2d 784, 796 (1981). Since, before Croson, a majority of the Supreme Court had never joined in one opinion 16 on the constitutionality of

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