Shea v. Kerry

• Decision Date: 07 August 2015
• Docket Number: No. 13–5153.,13–5153.
• Citation: 796 F.3d 42
• Parties: William E. SHEA, Appellant v. John F. KERRY, Secretary of State, in his Official Capacity, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

796 F.3d 42

William E. SHEA, Appellant

v.John F. KERRY, Secretary of State, in his Official Capacity, Appellee.

No. 13–5153.

United States Court of Appeals, District of Columbia Circuit.

Argued Jan. 20, 2015.

Decided Aug. 7, 2015.

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

Opinion for the Court filed by Circuit Judge SRINIVASAN.

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 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, 107 S.Ct. 1442, 94 L.Ed.2d 615 (1987), and United Steelworkers of America, AFL–CIO–CLC v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (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.

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 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).

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 senior-level 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 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.

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...