Conlin v. Blanchard, 88-1982

• Decision Date: 27 November 1989
• Docket Number: No. 88-1982,88-1982
• Citation: 890 F.2d 811
• Parties: 51 Fair Empl.Prac.Cas. 707, 52 Empl. Prac. Dec. P 39,490, 58 USLW 2374 Richard F. CONLIN, Plaintiff, Richard L. Fitzpatrick, et al., Plaintiffs-Appellants, v. James J. BLANCHARD, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 811

890 F.2d 811

51 Fair Empl.Prac.Cas. 707,

52 Empl. Prac. Dec. P 39,490, 58 USLW 2374

Richard F. CONLIN, Plaintiff Richard L. Fitzpatrick, et al., Plaintiffs-Appellants, v. James J. BLANCHARD, et al., Defendants-Appellees.

No. 88-1982.

United States Court of Appeals Sixth Circuit.

Argued Aug. 3, 1989.

Decided Nov. 27, 1989.

Charles J. Porter (argued), Hardig & McConnell, Bloomfield Hills, Mich., for Richard F. Conlin and Richard L. Fitzpatrick, Roger A. Ruppal, and Richard J. Victorson.

Deborah A. Devine, Asst. Atty. Gen. (argued), Lansing, Mich., for James J. Blanchard, Martha W. Griffiths, Frank J. Kelley, John R. Castillo, John F. Hueni, Robert H. Naftaly, Doug Ross, Elizabeth P. Howe, James P. Pitz, and C. Patrick Babcock.

Noel A. Gage, Scott D. Moore, Gage, Herzfeld & Rubin, Southfield, Mich., for John F. Dodge, Walter R. Greene, Patricia B. Johnson, and Alan A. May.

Dianne M. Rubin, Asst. Atty. Gen., Office of the Attorney General, Detroit, Mich., for Dorothy Haener, Benny Napoleon, Beberly Clark, Sondra L. Berlin, Eva Evans, Michael C. Hidalgo, and William Holly.

Merry A. Rosenberg, Office of the Attorney General of Michigan, Lansing, Mich., for Robert A. Bowman, and James A. Pitz.

Before NELSON and BOGGS, Circuit Judges; and WILHOIT, District Judge. ^*

BOGGS, Circuit Judge.

Plaintiffs Richard L. Fitzpatrick, Roger A. Ruppal, and Richard J. Victorson appeal the district court's grant of a motion to dismiss in this civil rights complaint for sex discrimination against males under the State of Michigan's affirmative action plan. We affirm the dismissal of appellants Ruppal and Victorson based upon the statute of limitations, reverse the district court's summary affirmance of the plan based upon constitutional grounds, and remand for further factual development on the actual operation of the affirmative action plan in the circumstances of this case.

I

Appellant Fitzpatrick is a civil servant employed by the Michigan Department of Transportation (MDOT). He now occupies a position classified by Civil Service as a Property Specialist VI. In February 1987, a vacancy occurred for the position of Property Specialist VIII in Oakland County. This position requires a Bachelor's Degree in Business Administration or related field and a Michigan real estate broker's license. However, certain combinations of education and experience can be considered as equivalent to the Bachelor's Degree. Fitzpatrick applied for this position, but it went to C. Mary Carlisle, who has more than twenty years of experience with MDOT, including many years in the positions of Right Way Agent and Property Specialist, and is a licensed real estate broker.

At the time of Carlisle's promotion, five non-handicapped white males, one handicapped white male, one black male and one black female occupied positions classified by Civil Service as Property Specialist VII, VIII, IX, or X in the Oakland County office of MDOT. Fitzpatrick applied for six other promotions between October 5, 1987, and June 10, 1988. Five of these appointments went to white males. However, Fitzpatrick challenges the Carlisle appointment as a violation of 42 U.S.C. Sec. 1983 and the fourteenth amendment to the United States Constitution, claiming that Carlisle was selected for the position because of her sex.

Appellant Ruppal is a State civil servant employed by the Michigan Department of the Treasury ("Treasury"). He now holds the position of Auditor X, which he attained in 1988. However, he sought the same position in September 1984, but it went to a white female, Joanna Siegla. Ruppal challenges this promotion under 42 U.S.C. Sec. 1983 and the fourteenth amendment.

Appellant Victorson was hired by Treasury in 1967 as a high school graduate, before there was any requirement for a college degree for upper-level positions. In the early 1980s, Victorson applied three times for the position of Auditor IX. Two of those positions went to other males, while one went to the aforementioned Ms. Siegla. Victorson challenges this promotion under 42 U.S.C. Sec. 1983 and the fourteenth amendment. Subsequently, appellant Victorson also applied for two Auditor IX openings which went to males and two Auditor X positions which went to white females.

Appellants challenge the appointments as being impermissibly motivated by sex because of the operation of the State of Michigan's "affirmative action plan," which appellants claim is a violation of 42 U.S.C. Sec. 1983 and the fourteenth amendment. The evolution of this plan began some eighteen years ago.

In 1971, defendant State of Michigan conducted a "review" of employment opportunities for women and minorities, resulting in the publication of a report. As stated in the introduction, the report's conclusions were "predicated on the premise that the effectiveness of an equal employment opportunity program can be readily measured by the representation or lack of representation of all segments of the population in all grade levels in all departments and in all areas." However, the introduction also noted that "geographic location and bona fide education and experience requirements were significant factors in the employment patterns."

The summary of the report provides both statistical data on the composition of the workforce in various jobs by race and sex, and statements that women or minorities are "under-represented" in particular fields. The study is not explicit as to what constitutes under-representation, although most of the language seems to measure it with reference to the general population (with additional refinements for geographic and educational requirements in some cases).

As to specific findings of discrimination, the report only stated that the examination process has been applied unfairly in the past to fill positions in the state and that several department spokesmen had noted that "provisional appointees who were considered satisfactory employees were unable to pass the prerequisite examination." (1971 report, p. 12). Furthermore, the report alleged several instances of "stereotyped" attitudes among persons who made hiring decisions. However, the report also noted that "it was impossible to determine how many non-whites were rejected by department personnel." Ibid.

The report and its recommendations generally created no binding procedures, and at the time were no more than guidelines. At no place in the recommendations is there any suggestion that non-white or female applicants are to be preferred over white male applicants. Instead, the recommendations focus on areas in which the causes of "discriminatory" inequities can be corrected, i.e., reduced use of merit tests, recognition of equivalent job experience modifications of confusing applications, or fairer publicity for job openings.

However, the report also recommended that each department "formally commit itself to achieving an employment pattern that is representative of all segments of the population on all levels in all areas ..." Furthermore, the report recommended that no provisional appointment (an appointment done outside regular channels) "be made from an applicant pool that is not representative of all segments of the community." (emphasis added)

This report was used as a predicate for the 1980 "Affirmative Action Guidelines for Equal Employment Opportunity in State Government." This publication, promulgated by the Michigan Equal Employment and Business Opportunity Council (MEEBOC), directed every state agency to adopt affirmative action plans in which goals and timetables were used to correct "deficiency in utilization" of women and minorities. "Underutilization" is defined as having fewer members of a protected category than would reasonably be expected by their availability for the job. This is calculated by looking at population percentages for minority groups and labor force percentages for women and "handicappers" with appropriate "validated" modifications for certain positions that have higher level qualifications. If "underutilization" is present, the 1980 guidelines state that "prima-facie discrimination" is made out, presumably justifying the imposition of a remedy.

The guidelines direct that preference be given to "underutilized" candidates if other things are equal within an applicant pool where unfair tests have been eliminated. However, this "equality" is not defined.

In implementing these guidelines, the MDOT's latest progress reports, taken from its 1986-87 affirmative action plan, recognize that availability of members of underrepresented groups is minimal in certain technical areas. However, the percentages utilized indicate that the department is still apparently trying to correct for underutilization based on general population and workforce statistics.

Appellants and plaintiff Richard Conlin filed their Section 1983 complaint on April 27, 1988. In Count I of their complaint, appellants attacked the defendants' Affirmative Action Policy for the Michigan classified civil service under the fourteenth amendment and 42 U.S.C. Sec. 1983. Count I further alleged that the MEEBOC established affirmative action goals which mirrored the general population of women and minorities in the state. Count I alleged this to be illegal because it was allegedly formulated without evidence of prior discriminatory employment practices, and because it had no set time for a remedial goal to be accomplished. In both Counts II and III, plaintiffs attacked the Affirmative Action Plans of the Treasury and the MDOT specifically.

Appellants Ruppal and Victorson had previously filed an action in Oakland County Circuit Court. In the state case, both plaintiffs alleged that the departmental affirmative action plans violated the Fourteenth Amendment and its counterpart in the Michigan Constitution, Const.1963, art. 1, Section 2. Both parties requested declaratory and injunctive relief, and Victorson sought back pay.

The constitutional...