Maryland Troopers Ass'n, Inc. v. Evans
| Decision Date | 06 May 1993 |
| Docket Number | No. 92-2171,92-2171 |
| Citation | 993 F.2d 1072 |
| Court | U.S. Court of Appeals — Fourth Circuit |
| Parties | 61 Fair Empl.Prac.Cas. (BNA) 1177, 61 Empl. Prac. Dec. P 42,235, 61 USLW 2732 MARYLAND TROOPERS ASSOCIATION, INCORPORATED, Appellant, The Coalition of Black Maryland State Troopers, Incorporated; Rufus L. Caple, Corporal; Mark A. Caple; Johnny Fortune, Corporal; James F. Harris, TFC; Floyd C. Jones, Corporal; Ronald M. Murphy, Corporal; Dewight D. Rolley, TFC; George A. Taylor, TFC; Frazier A. West, TFC, Plaintiffs-Appellees, v. Edward M. EVANS, Deputy Superintendent Maryland State Police; Frank Mazone, Deputy Superintendent Maryland State Police; Henry A. Cumberland, Maryland State Police; William T. Gerwig, Maryland State Police; Thomas S. Bosley, Captain; Robert D. Graham, Maryland State Police; Raymond D. Cotton, Maryland State Police; George C. Wyatt, Maryland State Police; William Donald Schaefer, as Governor of the State of Maryland; Bishop L. Robinson, as Secretary of the Maryland Department of Public Safety & Correctional Services; Hilda E. Ford, as Secretary of the Maryland Department of Personnel; Larry W. Tolliver, Colonel, as Superintendent of the Maryland State Police, Defendants-Appellees. |
Andrew C. Topping, Hogan & Hartson, Baltimore, MD, argued (Gil A. Abramson, on brief) for appellant.
Lawrence P. Fletcher-Hill, Asst. Atty. Gen., Baltimore, MD, argued (J. Joseph Curran, Jr., Atty. Gen. of MD, Millicent Edwards Gordon, Asst. Atty. Gen., David L. Moore, on brief), for appellees.
Before WILKINSON, Circuit Judge, POTTER, United States District Judge for the Western District of North Carolina, sitting by designation, and HOWARD, United States District Judge for the Eastern District of North Carolina, sitting by designation.
This case presents the question of what evidentiary foundation is required for a state to adopt a plan with numerical employment goals based upon race. The Maryland Troopers Association has intervened to challenge a Consent Decree between the Coalition of Black Maryland State Troopers and the Maryland State Police, under which the MSP agreed to hire and promote certain percentages of black troopers at each state trooper rank. The MTA contends that these numerical goals violate the Equal Protection Clause of the Fourteenth Amendment and Title VII of the Civil Rights Act of 1964. Appellees respond that the goals are justified by statistical disparities between minority percentages in the MSP and minority percentages among Maryland residents who are minimally qualified to be MSP troopers. We think that bare statistical comparisons constitute a treacherous rationale for the installation of race preferences, and that the comparisons adduced in this case fall far short of justifying a state-imposed, race-conscious remedy. Accordingly, we reverse the judgment of the district court and remand this case with instructions that the MTA's objections to the hiring and promotional goals in the Consent Decree be granted.
The story behind this dispute began in 1974, when the United States sued the State of Maryland for racial discrimination in hiring state troopers. The United States and Maryland settled this litigation by entering into a consent decree, under which the Maryland State Police agreed to hire black applicants at such a rate as to achieve an overall percentage of 16% black troopers in five years. In 1979, the consent decree was modified. The overall goal was lowered to 14% black troopers, but the MSP was additionally required to have 33% of its entry-level troopers be black.
By 1980, 9.5% of the MSP troopers were black. They were concentrated in the lower ranks, however, largely because the MSP does not hire laterally and promotes troopers no more than one rank per year. In 1982, reports of cronyism and rigged examinations surfaced in the MSP's promotional system. These circumstances led the Attorney General of Maryland in 1985 to issue a critical Report on Promotional Practices in the Maryland State Police. Part I of the AG's Report documented the continuing allegations that high-ranking MSP officers were tampering with promotional scores to favor their chosen candidates, and concluded that MSP efforts to address this problem had been inadequate. Part II charted the low representation of blacks in the upper ranks of the MSP, and suggested that the flawed promotional system was the culprit. The Report noted favorably the recommendation of an earlier study that the MSP thoroughly overhaul its promotional system in order to be fair to troopers of all races.
In response to the Report, the Superintendent of the MSP adopted an Affirmative Action Promotional Plan for Law Enforcement Personnel, which set out specific numerical goals for the composition of black troopers in the lower ranks of the MSP. This Plan became effective on March 27, 1985, and was to expire once the MSP established a nonbiased promotional scheme. Toward this latter end, the MSP hired an outside consulting firm to develop and administer a promotional evaluation for the ranks of Corporal through Captain. By 1988, the consulting firm had installed new examinations for the ranks of Corporal, Sergeant, and First Sergeant, as well as more elaborate "assessment centers" for the ranks above. As required by Maryland law, however, the Superintendent of the MSP retained ultimate discretion over whom to promote, and was able to consider a number of factors in addition to the exam scores, including recommendations from immediate supervisors, special experience of the candidate, where the candidate wanted to work, and input from bureau chiefs.
Between 1980 and 1991, the overall percentage of black MSP troopers steadily increased. The following chart is illustrative:
Moreover, after 1988, when the MSP installed the new promotional examination, black troopers were promoted at rates that actually exceeded the percentage of blacks in the eligible rank below. In 1989, of the 81 troopers promoted from Trooper First Class to Corporal, 19 (or 23.5%) were black; of the 42 promoted from Corporal to Sergeant, 9 (or 21.4%) were black; and of the 5 promoted from Sergeant to First Sergeant, 1 was black. In 1990, 20% of all the promotions in all the ranks went to black troopers.
Meanwhile, on June 19, 1985, the Coalition of Black Maryland State Troopers sued the MSP in the United States District Court for Maryland, alleging ongoing racial discrimination by the MSP in hiring and promoting troopers. In December 1990, the Coalition and the MSP settled this lawsuit by entering into the Consent Decree that is the subject of this appeal. The Consent Decree required the MSP to meet the following numerical goals by rank, until the MSP met the overall goal of 22%:
The Consent Decree did not require the MSP to hire or promote anyone who was not otherwise qualified. The Decree also included provisions other than the hiring and promotional goals: monetary damages and automatic promotions for individual plaintiffs; equal access for employee organizations; requirements of equality in training, job and equipment assignments, and disciplinary proceedings; and so forth.
On January 11, 1991, the Maryland Troopers Association intervened to oppose the hiring and promotional goals in the Consent Decree. On August 11, 1992, the district court rejected the MTA's challenge, ruling that the evidence of racial discrimination offered by the Coalition and the MSP was sufficient to warrant a race-conscious remedy. This evidence took two basic forms: (1) the findings in the 1985 Attorney General's Report; and (2) a pair of statistical comparisons between the black composition of the MSP and the black composition of the relevant qualified labor pool.
The first of these statistical comparisons was between the percentage of blacks in each rank of the MSP in 1985 (see Table 1), and the percentage of black Maryland residents who worked in jobs that allegedly required equivalent skills:
The "equivalent job" in Table 3 represents a job for which...
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