Alexander v. Estepp

• Decision Date: 05 September 1996
• Docket Number: No. 95-2978,95-2978
• Citation: 95 F.3d 312
• Parties: 71 Fair Empl.Prac.Cas. (BNA) 1279, 69 Empl. Prac. Dec. P 44,283, 65 USLW 2224 Marc ALEXANDER; Timothy Clark; George Frye; Robert A. Moore; Angela Moore; Richard Saxberg; Josh David Reedy, Plaintiffs-Appellants, v. M.H. ESTEPP, individually and in his capacity as Fire Chief; Yvonne Tyler, individually and in her official capacity; Prince George's County; Maureen Hennessy, individually and in her official capacity; William H. Goddard, individually and in his official capacity, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 312

95 F.3d 312

71 Fair Empl.Prac.Cas. (BNA) 1279,

69 Empl. Prac. Dec. P 44,283, 65 USLW 2224

Marc ALEXANDER; Timothy Clark; George Frye; Robert A Moore; Angela Moore; Richard Saxberg; Josh David Reedy, Plaintiffs-Appellants, v. M.H. ESTEPP, individually and in his capacity as Fire Chief Yvonne Tyler, individually and in her official capacity Prince George's County; Maureen Hennessy, individually and in her official capacity; William H. Goddard, individually and in his official capacity, Defendants-Appellees.

No. 95-2978.

United States Court of Appeals, Fourth Circuit.

Argued June 5, 1996.

Decided Sept. 5, 1996.

ARGUED: Daniel F. Goldstein, Brown, Goldstein & Levy, Baltimore, Maryland, for Appellants. Henry Robbins Lord, Piper & Marbury, L.L.P., Baltimore, Maryland, for Appellees. ON BRIEF: Joseph B. Espo, Lauren E. Willis, Brown, Goldstein & Levy, Baltimore, Maryland, for Appellants. Leonard E. Cohen, Ann L. Lamdin, Piper & Marbury, L.L.P., Baltimore, Maryland; Barbara L. Holtz, Acting County Attorney, Sean D. Wallace, Deputy County Attorney, Prince George's County, Maryland Office of Law, Upper Marlboro, Maryland, for Appellees.

Before WILKINSON, Chief Judge, MICHAEL, Circuit Judge, and MACKENZIE, Senior United States District Judge for the Eastern District of Virginia, sitting by designation.

Affirmed in part, reversed in part, and remanded by published opinion. Judge MICHAEL wrote the opinion, in which Chief Judge WILKINSON and Senior Judge MACKENZIE joined.

OPINION

MICHAEL, Circuit Judge:

The plaintiffs are six white men and one white woman who sought employment as Prince George's County, Maryland, firefighters in 1993 and 1994. They sued fire department officials and the county under 42 U.S.C. §§ 1981 & 1983, alleging that the department's affirmative action program impermissibly discriminates on the basis of race and sex, in violation of the Equal Protection Clause of the Fourteenth Amendment. ¹ The district court granted the defendants' motion for summary judgment and denied the plaintiffs' cross-motion for summary judgment.

We affirm in part the judgment of the district court, and we reverse in part. We hold that (1) the department's affirmative action program is invalid because it is not narrowly tailored to achieve its goals, (2) further proceedings are necessary to determine whether plaintiff Josh Reedy would have been hired but for the existence of the program, (3) the other plaintiffs were not denied employment because of their race or sex, and (4) the individual defendants have not established that they are entitled to qualified immunity.

I.

Prince George's County chooses its firefighters in the following manner. Applicants must take a pass/fail performance examination and a written examination. Those who pass both are interviewed. Each applicant is scored based on his or her performance on the written examination and in the interview. The department then groups the applicants into three "bands"--"Outstanding," "Well Qualified," or "Qualified"--based on their combined scores. Within each band, applicants are ranked based on their "preference level." A county ordinance requires that within the same band (Outstanding, Well Qualified, or Qualified), firefighter applicants are to be hired in the following order:

(1) Current county employees seeking promotions;

(2) Disabled military veterans;

(3) Non-disabled veterans who were volunteer firefighters;

(4) All other non-disabled veterans;

(5) All other former volunteer firefighters;

(6) Displaced homemakers not in any of the above categories;

(7) County residents not in any of the above categories;

(8) All other persons.

Prince George's County Code § 16-162(d)(2)(i). The preferences for volunteer firefighters ((3) & (5)), however, may be eliminated if the county's personnel officer certifies in writing to the fire chief that continued use of the preference "will have a disparate impact on a protected class as defined by the guidelines of the Equal Employment Opportunity Commission." Prince George's County Code § 16-162(d)(4). Applicants within the same band who have the same preference level are ranked on the basis of their combined examination and interview scores. The department maintains a list of the applicants and their total rank (based on band, preference, and score). This list is called the "Applicant Register," and it is continually updated as new applicants apply and existing applicants withdraw their applications. ²

The mechanics of the department's affirmative action program have never been committed to writing, but the record indicates that the program works in the following manner. Each recruiting season fire department officials set informal caps on the number of whites and the number of males who will be offered employment. ³ The department offers applicants employment in the order in which they are listed on the Applicant Register, but once a cap is reached (either for whites or for males), a lower ranking, uncapped applicant is offered employment instead of a higher ranking, capped applicant.

The informal caps are imposed in an effort to meet affirmative action goals set (in percentages) by the county. In the past the county's goals have tracked Census data. In 1993 and 1994 the county set goals of having 18 percent of its workers female and 39 percent nonwhite or Hispanic. Currently, 16 percent of county protective services personnel (firefighters and paramedics) are female and 38 percent are non-white or Hispanic. County officials have said that they expect to increase the affirmative action percentage goals in order to track new Census data expected to show increases in the county's minority population and in the percentage of female participation in the workforce.

The plaintiffs complain specifically about the 1993 and 1994 hiring seasons. In 1993 the department offered employment to thirteen applicants. According to the Applicant Register, none of the plaintiffs ranked better than fourteenth in that hiring season. In 1994 the department offered employment to nine applicants. Plaintiffs Marc Alexander and Angela Moore received and accepted offers. ⁴ Five other applicants accepted offers of employment. Plaintiff Josh Reedy ranked eighth on the Applicant Register, but the department did not offer him a job. The remaining plaintiffs ranked lower than ninth.

The plaintiffs sued seeking injunctive, declaratory, and monetary relief. The district court rejected all of their claims and entered summary judgment in favor of the defendants. ⁵

II.

We believe that the department's affirmative action program, as it is currently structured, cannot pass constitutional scrutiny, even though "[t]he unhappy persistence of both the practice and the lingering effects of racial discrimination against minority groups in this country is an unfortunate reality, and government is not disqualified from acting in response to it." Adarand, --- U.S. at ----, 115 S.Ct. at 2117.

All racial classifications--even those intended to benefit minority groups--are subject to strict scrutiny. Id. at ----, 115 S.Ct. at 2111 (racial classifications are "inherently suspect" and receive "a most searching examination") (citations omitted); see also City of Richmond v. J.A. Croson Co., 488 U.S. 469, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989). "Racial classifications are simply too pernicious to permit any but the most exact connection between justification and classification." Adarand, --- U.S. at ----, 115 S.Ct. at 2113 (quoting Fullilove v. Klutznick, 448 U.S. 448, 537, 100 S.Ct. 2758, 2805, 65 L.Ed.2d 902 (1980) (Stevens, J., dissenting)). An affirmative action program may be upheld only if it is narrowly tailored to serve a compelling governmental interest. Id.

The county argues that its program is intended to benefit African Americans and women by serving, among others, the following goals: (1) redressing present effects of past and current incidents of discrimination and harassment within the department, (2) sending a message that the department respects diversity and that discrimination and harassment will not be tolerated, (3) promoting more effective fire prevention and firefighting by fostering the trust of a diverse public, and (4) serving educational goals by providing children with racially and sexually diverse role models. The district court found that the first interest asserted was compelling. The court relied on (1) "extensive statistical evidence of discrimination" against African Americans and women, (2) evidence that discriminatory behavior and attitudes within volunteer fire departments carried over into the county fire department, ⁶ and (3) anecdotal evidence of harassment of African American and female members of the county fire department. The plaintiffs challenge these findings, primarily on the grounds that most acts of harassment and discrimination occurred long ago and that there is no present evidence of racial or sexual animus within the Prince George's County fire department. We need not resolve this dispute because even assuming, arguendo, that the asserted interests are compelling, the program is not narrowly tailored because the means chosen by the department are not related closely enough to the interests asserted.

The program is not narrowly tailored because means less drastic than outright racial classification were available to department officials. In particular, the Prince George's County Code expressly provides that the fire department may eliminate its volunteer preference in order to encourage diversity within the department. The department did not, however, take that simple step. Indeed, if discriminatory attitudes within the county fire department owe their origin to practices within volunteer fire departments, as the defendants claim, then the most logical solution is to deny volunteer firefighters the hiring preference they currently enjoy. If a governmental body finds itself linked to a...