Shea v. Powell

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

)
WILLIAM E. SHEA )
)
Plaintiff, )
)
v. ) Civil No. 02-577 (RCL)
)
JOHN F. KERRY, Secretary )
U.S. Department of State 1 )
)
Defendant. )
)

MEMORANDUM OPINION

Pro se plaintiff William Shea, a white career Foreign Service officer, brought this Title

VII reverse discrimination action against the Department of State (“State”). Compl., Mar. 3,

2002, ECF No. 1. When State hired Shea in 1992, State operated an affirmative action program

that made qualified minorities eligible for direct placement into mid-level classes of the Foreign

Service. Shea claims he would have been eligible for this mid-level placement program but for

his race and still feels the effect of his entry at a lower pay grade—each paycheck is less than it

would have been if he entered as a mid-level officer.

This case suffered a series of fits and starts, largely attributable to Ledbetter v. Goodyear

Tire & Rubber Co., 550 U.S. 618 (2007) and the Lilly Ledbetter Fair Pay Act, Pub. L. No. 111–2

(Jan. 29, 2009). Since Shea based his claim on the continuing effects of a discriminatory

decision made in 1992, his claim was time-barred until passage of the Lilly Ledbetter Act. The

substantive merits are finally ripe for consideration as the Court considers each party’s motion

1
On February 1, 2013, John F. Kerry succeeded Hillary Clinton as the United States Secretary of State. Since this
suit is against the Secretary of State in his or her official capacity only, the Court will substitute Secretary Kerry as
defendant in this matter, per Federal Rule of Civil Procedure 25(d).
for summary judgment. Under Title VII, Shea has the ultimate burden of proving that State’s

affirmative action plan was unlawful. Shea cannot support an essential element of his claim with

admissible evidence. He tries to prove, via his own amateur statistics, that minorities were not

significantly underrepresented in the Foreign Service mid-levels. Shea needs, and lacks,

qualified testimony about the statistical significance of his findings. Therefore, State is entitled

to summary judgment on Shea’s remaining claims and this case will be dismissed with prejudice.

I. BACKGROUND

A. Factual Background

In 1985, Congress enacted the Foreign Relations Authorization Act, Fiscal Years 1986

and 1987 (“1986–87 FRAA”). Pub. L. 99–93. The 1986–87 FRAA directed State to

“develop…a plan designed to increase significantly the number of members of minority groups

and women in the Foreign Service.” Pub. L. 99-93, Title I, § 152(a). Congress further directed

that “each plan developed pursuant this section shall…place particular emphasis in achieving

significant increases in the numbers of minority group members and women who are in the mid-

levels of the Foreign Service.” Pub. L. 99-93, Title I, § 152(b). Thereafter, State instituted the

Mid-Level Affirmative Action Plan (“MLAAP”) under its more general Mid-Level Foreign

Service Career Candidate Program (“MLCCP”). See Def.’s Statement of Facts Not in Genuine

Dispute ¶ 3 (“Def.’s SMF”), Aug. 17, 2012, ECF No. 120-1; Pl.’s Response to Def.’s Statement

of Material Facts Not in Dispute 7–8 (“Pl.’s SMF Resp.”), Aug. 30, 2012, ECF No. 123-4 (only

objecting to defendant’s statement that MLAAP was “in response” to FRAA). Although white

women were not qualified to participate in the MLAAP, State created the “Federal Women

Programs” and the Federal Women’s Program manager to develop and monitor programs aimed

at greater female representation. Def.’s SMF ¶ 4; Pl.’s SMF Resp. (admitting Def.’s SMF ¶ 4).

2
 In 1987, Congress enacted the Foreign Relations Authorization Act, Fiscal Years 1988

and 1989 (“1988–89 FRAA”). Pub. L. 100–204. In the 1988–89 FRAA Congress found:

[T]hat the Department of State and other Foreign Service agencies have not been
successful in their efforts – (1) to recruit and retain members of minority groups
in order to increase significantly the numbers of minority groups in the Foreign
Service; and (2) to provide adequate career advancement for women and members
of minority groups in the senior levels of the Foreign Service.

Pub. L. 100–204, Title I, § 183(a). Congress further required State to “substantially increase

their efforts to implement effectively the plans required by” the 1986–87 FRAA and “ensure that

those plans effectively address the need to promote increased numbers of qualified women and

members of minority groups into the senior levels of the Foreign Service.” Pub. L. 100–204,

Title I, § 183(b). State revised the MLAAP in November 1990 and instituted its FY 1990–92

Mid-Level Affirmative Action Plan, which was in effect when Shea applied to, and was hired by,

State. Def.’s SMF ¶ 9; Pl.’s SMF Resp. 10 (admitting Def.’s SMF ¶ 9).

Mid-level hiring allowed State to hire a Foreign Service candidate directly into a higher

grade, rather than into an entry-level grade. Under the general mid-level hiring program, a

candidate with the requisite experience could enter as a mid-level hire if State received a

“certification of need” that State required an outside hire at that grade and with those

qualifications. The Mid-Level Affirmative Action Plan dispensed with the “certification of

need” requirement in favor of self-identification as American Indian, Alaskan Native, Asian and

Pacific Islander, Hispanic, or African American. State required all candidates for mid-level

hiring—both minority and non-minority—to (a) have substantial professional experience, (b)

receive a passing grade on an oral examination, and (c) pass a background check. In February

1993, State ended the mid-level affirmative action program, but kept in place its more general

3
mid-level hiring program. Def.’s SMF ¶¶ 10, 12–17; Pl.’s SMF Resp. 10–11 (admitting in all

relevant respects Def.’s SMF ¶¶ 10, 12–17).

In September 1990, William Shea—a white male of Irish descent—submitted an

application to the Foreign Service. Shea never applied for mid-level placement through the

general Mid-Level Foreign Service Career Candidate Program. In May 1993, State hired Shea as

an entry-level career Foreign Service Officer; he came in at grade FS-05, step 5. 2 Shea knew at

the time he was hired that qualified minorities could start at higher grades, and that two people in

his introductory class were starting at mid-level grades due to their participation in a minority

mid-level hiring program. Shea did not file an administrative grievance until July 11, 2001—

nine years after he entered the Foreign Service. Def.’s SMF ¶¶ 20–23, 26, 37; Pl.’s SMF Resp.

13–16 (admitting Def.’s SMF ¶¶ 20–23, 26, 37).

In his Complaint, Shea alleged that he would have passed the screening process of the

MLAAP, but was excluded from consideration solely because of his race. Specifically, Shea

alleged harm because his hiring at entry-level rather than mid-level grade has subjected him to

lower pay and fewer promotion opportunities than members of minority groups admitted under

the MLAAP, in violation of his rights under Title VII. See Compl. ¶¶ 1–2.

B. Procedural Background

On July 11, 2001, Shea filed a grievance with the State Department asserting, among

other things, racial discrimination in violation of Title VII because of the disparate pay he was

receiving. See Def.’s SMF ¶ 37; Pl.’s SMF Resp. 11 (admitting Def.’s SMF ¶ 37); Compl. ¶¶ 1–

2. On January 30, 2002, Shea received the decision of the Foreign Service Grievance Board

dismissing Shea’s complaint for lack of jurisdiction. Compl. ¶ 2. Having exhausted his

2
In the Foreign Service personnel system, FS-05 is the entry-level grade and FS-01 is the senior grade. See Def.’s
SMF ¶ 11; Pl.’s SMF Resp. 10 (admitting Def.’s SMF ¶ 11).

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administrative remedies, Shea filed suit in this Court on March 26, 2002. His Complaint raised a

Title VII challenge to the MLAAP, claiming he was injured by continuing to receive a lower

paycheck than he would had he been eligible for mid-level placement though the MLAAP.

The case was initially assigned to Judge James Robertson, who granted State’s Motion to

Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) because Shea’s complaint and

administrative grievance were untimely. Mem. & Order, Sept. 30, 2003, ECF Nos. 15 & 16. He

found Shea’s “complaint amounted to no more than allegations of discrimination in May 1992,

when he started at a lower pay grade.” Mem. 4, ECF No. 16. Judge Robertson held that each

allegedly-diminished paycheck did not amount to a new, discrete discriminatory act that reset the

clock for filing an administrative complaint. Id. at 3–4. Shea tried to rely on Anderson v.

Zubieta, 180 F.3d 329 (D.C. Cir. 1999) and Bazemore v. Friday 478 U.S. 385 (1986) “for the

proposition that, every time he received a paycheck for less than it would have been had he not

been discriminated against, he was ‘discriminated against anew.’” Id. at 4. However, Judge

Robertson found that these cases were “inapposite,” because there was not a “‘discriminatory

system in place,’” akin to those in Bazemore and Anderson. Id. (quoting Neidermeier v. Office of

Baucus, 153 F. Supp. 2d 23, 29 (D.D.C. 2001)). Furthermore, Judge Robertson dismissed Shea’s

constitutional claims and his request for declaratory and injunctive relief. Id. at 4–5.

Shea then appealed the district court’s ruling. See Notice of Appeal, Nov. 11, 2003, ECF

No. 17. “While the district court dismissed all of his allegations on the pleadings—finding none

stated a viable claim—Shea [sought] review of only one: i.e., that his pay and benefits are

discriminatorily low because the State Department set his pay grade pursuant to a diversity

program that disadvantaged him on account of his race (white) and ethnicity (Irish), in violation

of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and the Equal Protection

5
component of the Fifth Amendment, U.S. CONST. amend V.” Shea v. Rice, 409 F.3d 448, 449

(D.C. Cir. 2005). The court of appeals found that “Bazemore holds that an employee may

recover for discriminatorily low pay received within the limitations period because each

paycheck constitutes a discrete discriminatory act,” id. at 455, reversed the district court’s

dismissal, and remanded for further proceedings, id. at 456.

While the case was on remand, the Supreme Court decided Ledbetter v. Goodyear Tire &

Rubber Co., 550 U.S. 618 (2007) and brought the D.C. Circuit’s analysis into doubt. Judge

Robertson denied State’s subsequent Rule 12(c) motion for judgment on the pleadings, but

invited the parties to file for summary judgment after a fuller development of the factual record.

See Order, Aug. 30, 2007, ECF No. 43. After the parties filed cross-motions for summary

judgment, Judge Robertson found that Ledbetter effectively overturned the D.C. Circuit’s prior

analysis. Shea v. Rice, 587 F. Supp. 2d 166, 168–69 (D.D.C. 2008). He stated that Shea’s

argument “cannot be successfully distinguished from the ‘paycheck accrual rule’ that Ledbetter

argued for and that the Supreme Court rejected.” Id. at 169. Bazemore could not save Shea

because State did not engage in any “fresh discrimination” or continue a discriminatory system

during the limitations period; it was undisputed that State ended its mid-level affirmative action

program in 1993. Id. at 169–70. Therefore, Judge Robertson granted State summary judgment.

Shea again appealed the dismissal of his case. See Notice of Appeal, Nov. 23, 2008, ECF

No. 65. While Shea’s appeal was pending, Congress passed the Lilly Ledbetter Fair Pay Act of

2009, Pub. L. No. 111–2, 123 Stat. 5 (2009), which abrogated the Supreme Court’s holding in

Ledbetter. The D.C. Circuit remanded for reconsideration in light of this intervening change.

Shea v. Clinton, No. 08–5491, 2009 WL 1153448, at *1 (D.C. Cir. Apr. 2, 2009).

6
 On remand, Judge Robertson reconsidered the parties’ summary judgment motions,

examining arguments he did not reach earlier because he had disposed of the case on other

grounds. Mem. Order, Aug. 11, 2009, ECF No. 69. He rejected State’s legislative immunity

defense and found State did not have enough evidence to support a laches defense. Id. at 3–5.

He then considered Shea’s Title VII challenge to the MLAAP. He applied the burden-shifting

framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and considered Shea’s

claims under the affirmative action jurisprudence of United Steelworkers v. Weber, 443 U.S. 193

(1979), Johnson v. Transportation Agency, Santa Clara County, Cal., 480 U.S. 616 (1987), and

Hammon v. Barry, 826 F.2d 73 (D.C. Cir. 1987). Id. at 6–7. Judge Robertson stated that:

The government will be liable to Shea on account of the affirmative action
program that was in operation at State more than fifteen years ago only if Shea
can show (a) that the program was unlawful – meaning generally that it was not
designed to cure a manifest imbalance in the workforce; (b) that, except for his
race, Shea was qualified for the program; and (c) that Shea was damaged during
the period of limitations by the continuing effects of the MLAAP.

Id. at 5–6. At that time, the factual record regarding the legality of State’s affirmative action

plan had not been well developed. Id. at 8. Therefore, Judge Robertson denied both parties’

motions for summary judgment, id. at 11, and set a schedule for additional fact and expert

discovery, see Scheduling Order, Sept. 23, 2009, ECF No. 73.

Several miscellaneous motions followed. First, State objected to the Court’s treatment of

the MLAAP as a voluntary affirmative action plan and requested reconsideration. See Def.’s

First Mot. Reconsideration, Aug. 19, 2009, ECF No. 70. The Court denied this motion the next

day. Order, Aug. 20, 2009, ECF No 71. On January 1, 2010, Shea filed his still-pending Motion

for Summary Judgment, ECF No. 74. Thereafter, the Court allowed State to amend its discovery

responses so State will not have been deemed to admit to several of Shea’s factual claims. See

Order Granting Def.’s Mot. for Leave to File, Feb. 2, 2010, ECF No. 78.

7
 Judge Robertson retired in 2010, and the case was randomly reassigned to Judge Henry

H. Kennedy on June 4, 2010. Reassignment of Civil Case, June 4, 2010, ECF No. 80. Less than

a month later, the case was randomly reassigned to Judge Emmet G. Sullivan. Reassignment of

Civil Case, June 30, 2010, ECF No. 83. Judge Sullivan extended all discovery until September

30, 2010. Minute Order, July 6, 2010; Revised Scheduling Order, July 6, 2010, ECF No. 84.

Shea then filed a motion for reconsideration, challenging various aspects of Judge

Robertson’s prior rulings. Pl.’s Mot. Reconsideration, July 23, 2010, ECF No. 85. Shea also

moved to hold discovery deadlines in abeyance until resolution of this motion. ECF No. 86. In

response, Judge Sullivan stayed the entire matter until an April 6, 2011 status conference.

Minute Order, Mar. 9, 2011. At that conference, he orally extended the stay indefinitely.

The parties continued to file motions during the stay. State filed a second motion for

reconsideration, again arguing that Congress mandated the MLAAP and that it was error to

subject it to the standards applicable to voluntary affirmative action plans. Def.’s Second Mot.

Reconsideration, Apr. 5, 2011, ECF No. 93. Shea then filed a motion to apply judicial estoppel

to bar State from submitting an opposition to Shea’s still-pending motion for summary judgment.

Pl.’s Mot. to Apply Judicial Estoppel, Nov. 7, 2011, ECF No. 106.

On October 11, 2011, the case was reassigned by consent to its fourth (and, perhaps,

final) judge, Chief Judge Royce C. Lamberth. See Reassignment of Civil Case, ECF No. 105.

Chief Judge Lamberth denied both parties’ motions for reconsideration and Shea’s motion for

application of judicial estoppel, and lifted the stay on July 30, 2012. See Shea v. Clinton, 850 F.

Supp. 2d 153 (D.D.C. 2012); Shea v. Clinton, 880 F. Supp. 2d 113 (D.D.C. 2012). The Court set

a schedule for briefing on Shea’s still-pending summary judgment motion and any cross-motion

offered by State. See Mem. & Order 9, July 30, 2012, ECF No. 118.

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 On August 17, 2012, State filed a second Motion for Summary Judgment. ECF No. 120.

This led to several more rounds of procedural motions and requests for extensions. See ECF

Nos. 122, 125, 129, 132. After the Court settled these issues (see ECF Nos. 137–39; Shea v.

Clinton, 228 F.R.D. 1 (D.D.C. 2012)), the parties’ motions for summary judgment were finally

ripe for consideration on December 22, 2012. With discovery closed and a full briefing on the

merits presented, the Court can finally consider the substantive merits of Shea’s claim.

II. LEGAL STANDARDS

A. Summary Judgment

“The court shall grant summary judgment if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The mere

existence of any factual dispute will not defeat summary judgment; “the requirement is that there

be no genuine issue of material fact.” Anderson, 477 U.S. at 247–48 (emphasis in original). A

fact is material if, under the applicable law, it could affect the outcome of the case. Id. A

dispute is genuine if the “evidence is such that a reasonable jury could return a verdict for the

nonmoving party.” Id. Because “[c]redibility determinations, the weighing of the evidence, and

the drawing of legitimate inferences from the facts are jury functions, not those of a judge,” the

“evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in

his favor.” Id. at 255. A nonmoving party, however, must establish more than “the existence of

a scintilla of evidence” in support of its position. Id. at 252. The inferences drawn from the

evidence “must be reasonably probable and based on more than mere speculation.” Rogers

Corp. v. E.P.A., 275 F.3d 1096, 1103 (D.C. Cir. 2002) (citations omitted). The nonmoving party

may not rely solely on allegations or conclusory statements. See Greene v. Dalton, 164 F.3d

9
671, 675 (D.C. Cir. 1999). The nonmoving party must present specific facts that would enable a

reasonable jury to find in its favor. Id. If the evidence presented is “merely colorable, or is not

significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249–50.

In Celotex Corp v. Catrett, 477 U.S. 317, 322 (1986), the Supreme Court held that, after

“adequate time for discovery and upon motion,” a court must enter summary judgment “against a

party who fails to make a showing sufficient to establish the existence of an element essential to

that party’s case, and on which that party will bear the burden of proof at trial.” Elaborating:

In such a situation, there can be “no genuine issue as to any material fact,” since a
complete failure of proof concerning an essential element of the nonmoving
party's case necessarily renders all other facts immaterial. The moving party is
“entitled to a judgment as a matter of law” because the nonmoving party has
failed to make a sufficient showing on an essential element of her case with
respect to which she has the burden of proof.

477 U.S. at 322–23 (quoting Fed. R. Civ. P. 56(c)). The Supreme Court meant “to disapprove a

line of cases allowing a party opposing summary judgment to resist a properly made motion by

reference only to its pleadings,” id. at 325:

In cases…where the nonmoving party will bear the burden of proof at trial on a
dispositive issue, a summary judgment motion may properly be made in reliance
solely on the “pleadings, depositions, answers to interrogatories, and admissions
on file.” Such a motion, whether or not accompanied by affidavits, will be “made
and supported as provided in this rule,” and Rule 56(e) therefore requires the
nonmoving party to go beyond the pleadings and by her own affidavits, or by the
“depositions, answers to interrogatories, and admissions on file,” designate
“specific facts showing that there is a genuine issue for trial.”

Id. at 324 (quoting Fed. R. Civ. P. 56).

Rule 56 allows a party seeking or opposing summary judgment to “object that the

material cited to support or dispute a fact cannot be presented in a form that would be admissible

in evidence.” Fed .R. Civ. P. 56(c)(2). While at summary judgment the nonmovant “is not

required to produce evidence in a form that would be admissible at trial,” the evidence must be

10
“capable of being converted into admissible evidence.” Catrett v. Johns–Manville Sales Corp.,

826 F.2d 33, 38 (D.C. Cir. 1987). “Because the objective of summary judgment is to prevent

unnecessary trials, and because ‘[v]erdicts cannot rest on inadmissible evidence,’ it follows that

the evidence considered at summary judgment must be capable ‘of being converted into

admissible evidence.’” Akers v. Liberty Mut. Group, 744 F. Supp. 2d 92, 96 (D.D.C. 2010)

(quoting Greer v. Paulson, 505 F.3d 1306, 1315 (D.C. Cir. 2007)). At summary judgment the

Court cannot rely on “mere allegations or denials.” Anderson, 477 U.S. at 256; see also 10A

WRIGHT, MILLER & KANE, FEDERAL PRACTICE & PROCEDURE § 2727 (3d ed. 2012) (“A judge

may not resolve a summary-judgment motion by ‘assumptions’ about matters that have not been

properly presented in the manner prescribed by the rule[.]”).

The filing of a cross-motion for summary judgment does not “concede the factual

allegations of the opposing motion.” CEI Washington Bureau, Inc. v. Dep’t of Justice, 469 F.3d

126, 129 (D.C. Cir. 2006). Cross-motions for summary judgment are treated separately. See

McKenzie v. Sawyer, 684 F.2d 62, 68 n.3 (D.C. Cir. 1982) (“The rule governing cross-motions

for summary judgment…is that neither party waives the right to a full trial on the merits by filing

its own motion; each side concedes that no material facts are at issue only for the purposes of its

own motion.”). The court may—despite the parties’ stipulations that there are no disputed

facts—find material facts are in dispute, deny both motions, and proceed to trial. Id. at 1147 n.4.

B. Affirmative Action Plans Under Title VII

Title VII of the Civil Rights Act of 1964, as amended, prohibits employment

discrimination on the basis of race, color, religion, sex, or national origin. 42 U.S.C. §§ 2000e–

2, 2000e–3. Title VII protects all Americans, including white men, from race-based employment

discrimination. McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 280 (1976).

11
Nevertheless, the Supreme Court has repeatedly interpreted Title VII to allow “race-conscious

efforts to abolish traditional patterns of racial segregation and hierarchy.” Weber, 443 U.S. at

204; see also Johnson, 480 U.S. at 626. The Supreme Court has approved of affirmative action

plans “designed to ‘eliminate manifest imbalances in traditionally segregated job categories.’”

Johnson, 480 U.S. at 628 (quoting Weber, 443 U.S. at 197).

“The standard for determining whether affirmative relief is justified under Title VII is

less stringent than under the Constitution.” Stewart v. Rubin, 948 F. Supp. 1077, 1093 (D.D.C.

1996) (Lamberth, J.) aff’d, 124 F.3d 1309 (D.C. Cir. 1997). See also Johnson, 480 U.S. at 627

n.6 (“The fact that a public employer must also satisfy the Constitution does not negate the fact

that the statutory prohibition with which that employer must contend was not intended to extend

as far as that of the Constitution.”); cf. Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 273 (1986)

(applying strict scrutiny to constitutional challenge of affirmative action plan). Courts analyze

Title VII challenges to affirmative action plans under the analytical framework set forth in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). As the Supreme Court stated:

Once a plaintiff establishes a prima facie case that race or sex has been taken into
account in an employer’s employment decision, the burden shifts to the employer
to articulate a nondiscriminatory rationale for its decision. The existence of an
affirmative action plan provides such a rationale. If such a plan is articulated as
the basis for the employer’s decision, the burden shifts to the plaintiff to prove that
the employer’s justification is pretextual and the plan is invalid.

Johnson, 480 U.S. at 627. The plaintiff bears the ultimate burden of establishing the invalidity of

the affirmative action plan. Id. Reliance on an affirmative action plan is not an “affirmative

defense requiring the employer to carry the burden of proving the validity of the plan. The

burden of proving its invalidity remains on the plaintiff.” Id.

In analyzing affirmative action plans under Title VII, courts consider: (1) whether the

plan was justified by a “manifest imbalance” reflecting an underrepresentation of minorities or

12
women in “traditionally segregated job categories”; and (2) whether the plan was properly

tailored to cure the disparity without unnecessarily trammeling the interests of non-minorities.

Weber, 443 U.S. at 208. Statistically significant disparities between the percentage of minorities

employed and the percentage of qualified minorities in the labor market can be strong evidence

of a manifest imbalance. See Johnson, 480 U.S. at 433; Palmer v. Shultz, 815 F.2d 84, 91 (D.C.

Cir. 1987). Writing for the Court in Johnson, Justice Brennan stated that a “manifest imbalance

need not be such that it would support a prima facie case against the employer.” 480 U.S. at

632; see also id. at 633 n.11 (“However, as long as there is a manifest imbalance, an employer

may adopt a plan even where the disparity is not so striking, without being required to introduce

the nonstatistical evidence of past discrimination that would be demanded by the ‘prima facie’

standard.”); Stewart, 948 F. Supp. at 1094 (“Nor is a finding or admission of prior discrimination

required in a Title VII case. Indeed, to adopt affirmative measures to resolve Title VII

employment discrimination claims, the employer need not admit to any prior discrimination, nor

point ‘to evidence of an ‘arguable violation’ on its part.’” (quoting Johnson, 480 U.S. at 630)).

Shortly after Johnson, Judge Kenneth Starr of the D.C. Circuit read Johnson as not

eviscerating the existing “predicate of discrimination” requirement—an employer may only use

affirmative action as a remedy for prior discrimination. Hammon, 826 F.2d at 74–75. Statistics

showing an “egregious underrepresent[ation]” of minorities may give rise to an “inference of

discrimination” by the employer. Id. at 75. Finding that the Johnson majority agreed with

Justice O’Connor’s statement that affirmative action is permissible under Weber “only as a

remedial device to eliminate actual or apparent discrimination or the lingering effects of this

discrimination,” Johnson, 440 U.S. at 649 (O’Connor, J., concurring), Judge Starr held that

“although an employer need not admit or prove that it had acted discriminatorily, evidence of the

13
effects of its past or current discrimination is a prerequisite to lawful race-conscious employment

decisions,” 826 F.2d at 75 n.1.

In determining whether the affirmative action plan unnecessarily trammels the interests

of non-minorities, courts focus on the nature of the plan—including whether the plan is

temporary, whether it was intended to attain or maintain a racial balance, whether it imposes

quotas, whether it requires the discharge of white employees, and whether it is over-inclusive.

See, e.g., Weber, 443 U.S. at 208; Johnson, 480 U.S. at 636–40; United States v. Paradise, 480

U.S. 149, 182 (1987); Stewart, 948 F. Supp. at 1095–96.

III. DISCUSSION

This case is eleven years old and on its fourth judge. The district court twice entered

final judgment. Order, Sept. 30, 2003, ECF No. 15; Order, Nov. 21, 2008, ECF No. 64. The

court of appeals twice reversed the district court and remanded for further proceedings.

Judgment, Sept. 14, 2005, ECF No. 19; Mandate, Apr. 17, 2009, ECF No. 67. Given this

protracted history, the Court should clarify a few preliminary matters.

The Court will use the McDonnell Douglas / Johnson framework—described supra Part

II.B.—to analyze plaintiff’s Title VII claims. This case only concerns Shea’s Title VII claims.

Shea voluntarily withdrew a number of his claims in response to State’s first Motion to Dismiss.

See Pl.’s Opp’n to Def.’s Mot. to Dismiss 1–2, Feb. 10, 2003, ECF No. 12. Shea abandoned

other constitutional claims when he elected not to appeal their dismissal. See Shea, 409 F.3d at

450–51 (noting that Shea only appealed the district court’s dismissal of his pay grade

discrimination claim). To the extent Shea has any remaining constitutional claims, they would

be time-barred under the three-year statute of limitations applicable to equal protection claims. 3

3
Shea’s equal protection claims would be “subject to the District’s three-year residual limitation period.” Munoz v.
Bd. of Trustees of Univ. of Dist. of Columbia, 590 F. Supp. 2d 21, 28 (D.D.C. 2008) aff’d, 427 F. Appx. 1 (D.C. Cir.

14
Therefore, the Title VII standard articulated by the Supreme Court in Johnson v. Transportation

Agency, 480 U.S. 616 (1987) applies—rather than the constitutional standard articulated by the

Supreme Court in Wygant v. Jackson Board of Education, 476 U.S. 267 (1986). Over Justice

Scalia’s vigorous dissent, 480 U.S. at 657–77, Justice Brennan’s majority opinion in Johnson

made clear that the statutory test differs from the constitutional test, 480 U.S. at 627 n.6.

Johnson and its progeny describe the Title VII standard under which courts analyze

voluntary affirmative action programs. State repeatedly argued that the MLAAP is not a

“voluntary” plan—that the Foreign Relations Authorization Act, 22 U.S.C. § 3922a, mandated

the creation of an affirmative action plan. See, e.g., Def.’s Mem. ISO its First Mot.

Reconsideration 4–6; Def.’s Mem. ISO its Second Mot. Reconsideration. This Court has

rejected these arguments, finding that while the FRAA “clearly requires State to implement a

plan to address mid-level positions, it is silent on to the means by which State is to accomplish

this goal.” Shea v. Clinton, 850 F. Supp. 2d 153, 159 (D.D.C. 2012). The Court concluded,

while also rejecting State’s argument for legislative immunity, that “[t]he FRAA clearly does not

mandate an exception to Title VII and does not mandate creation of the MLAAP specifically.”

2011). “To establish an equal protection claim, plaintiff must show that she was singled out from among others
similarly situated on the basis of race and/or national origin.” Id. The plaintiff cannot rely on the “ongoing negative
consequences” of the prior discrimination to extend the statute of limitations for his equal protection claim. Id.
The Lilly Ledbetter Fair Pay Act, 123 Stat. 5 (2009), does not address constitutional or 42 U.S.C. § 1983 claims.
The Ledbetter Act did explicitly mention that it applies to claims under Title VII of the Civil Rights Act of 1964, the
Age Discrimination Act of 1967, the Americans With Disabilities Act of 1990, and the Rehabilitation Act of 1973.
Id. It would be very odd for the Ledbetter Act to specify, with great detail, the types of claims to which it applies
and then, sub silentio, change the statute of limitations for claims under the equal protection clause or § 1983. See,
e.g., ANTONIN SCALIA & BRIAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 93–100 (2012)
(explaining semantic canon that “[n]othing is to be added to what the text states or reasonably implies (casus
omissus pro omisso habendus est). That is, a matter not covered is to be treated as not covered.”); id. at 107–111
(explaining the “negative-implication canon” which suggests that “[t]he expression of one thing implies the
exclusion of others (expressio unius est exclusio alterius).”).
Furthermore, courts typically look to state law to determine the statute of limitations for constitutional claims.
See Carney v. Am. Univ., 151 F.3d 1090, 1096 (D.C. Cir. 1998) (D.C. Code § 12-301(8) provides statute of
limitations for § 1983 claims); Banks v. Chesapeake & Potomac Tel. Co., 802 F.2d 1416, 1429 (D.C. Cir. 1986) (§
12-301(8) provides statute of limitations for most Bivens actions).

15
Id. at 162. As this Court has found previously, see id. at 158–62, it reiterates that MLAAP is a

voluntary affirmative action plan subject to Johnson and its progeny.

This case is not a “mixed motive” or “direct evidence” case. Shea’s reliance on Price

Waterhouse v. Hopkins, 490 U.S. 228 (1989) is misplaced. See Pl.’s Opp’n to Def.’s Mot.

Summ. J. & Reply ISO Mot. Summ. J. 39 (“Pl’s Opp’n & Reply”), Aug. 30, 2012, ECF No. 123.

In Price Waterhouse, the Supreme Court set the standard for “mixed motive” Title VII cases:

Once a plaintiff shows an employer acted with an impermissible motive, the burden of proof

shifts to the employer to prove that it would have made the same decision even in the absence of

the impermissible motive. 490 U.S. at 242. In 1991, Congress amended Title VII; section 107

of the 1991 Act codified Price Waterhouse “to the extent that it shifts the burden of persuasion to

the defendant to prove a nondiscriminatory motive was at work.” 2 BARBARA T. LINDEMANN,

PAUL GROSSMAN & C. GEOFFREY WEIRICH, EMPLOYMENT DISCRIMINATION LAW 2544 (4th ed.

2007). However, this is not a “mixed motive” case, and courts typically do not treat “reverse

discrimination” cases as falling under the burden-shifting framework of Price Waterhouse and §

107. See id. at 2544–46. Courts in this Circuit have long held that the mere existence of an

affirmative action plan does not provide “direct evidence” of discrimination. See, e.g., Parker v.

Baltimore & Ohio R.R., 652 F.2d 1012, 1017 n.9 (D.C. Cir. 1981). “In the absence of direct

evidence of discrimination,”—of which there is none in this case—“disparate-treatment claims

under Title VII are analyzed under the burden-shifting framework set forth in McDonnell

Douglas[.]” Teneyck v. Omni Shoreham Hotel, 365 F.3d 1139, 1149 (D.C. Cir. 2004).

Shea may only challenge State’s revised FY 1990–92 Multi-Year Affirmative Action

Plan. When the Court refers to the “MLAAP” generally, it refers to the 1990–92 plan in effect at

the time of Shea’s hiring. At times, Shea presents arguments based on deficiencies in State’s

16
earlier 1987 Multi-Year Affirmative Action Plan. See generally Pl.’s Opp’n & Reply. This plan

was not in effect when Shea applied to State. Shea cannot directly challenge the 1987 MLAAP,

and the details of its alleged shortcomings are of limited probative value. On the other hand, the

findings of underrepresentation and prior discrimination underpinning the 1987 MLAAP may be

relevant to justifying the later plan. The 1990–92 plan was a continuation and refinement of an

existing plan. State did not need to justify the revised plan out of whole cloth; it may rely in part

on its earlier findings of discrimination and underrepresentation if it found that significant

underrepresentation persisted, and race conscious policies continued to be necessary.

When considering the numbers, the Court focuses on the mid- and senior-levels of career

Foreign Service generalist officers. At the time, the Department of State had two personnel

systems—one covering the “Foreign Service,” and one covering the “Civil Service system.” See

Ex. 2 to Def.’s Cross-Mot. 26 (Shea – 00090). The “Civil Service system” covered the gamut of

employees responsible for the general administration of the State Department, including clerical,

technical, and legal staff. Within the Foreign Service, there are Foreign Service Officers (or

“Generalists”) and Foreign Service Specialists. Foreign Service Officers have “general

responsibility for carrying out and conducting the United States’ foreign relations throughout the

world.” Id. Within this corps, State assigned its officers to one of four “cones”—

Administrative, Consular, Economic, and Political. Foreign Service Specialists, on the other

hand, are “professional specialists in communications, security, medicine, office support skills,

and other fields.” Id. State is responsible for meeting EEO goals for both the Civil and Foreign

Service, and for both Foreign Service Generalists and Specialists. Many of the reports submitted

by State also discuss underrepresentation in the Civil Service and Foreign Service Specialist

17
ranks. See, e.g., Ex. 2 to Def.’s Cross-Mot. (State FY 1990–92 Multi-Year Affirmative Action

Plan); Ex. 3 to Def.’s Cross-Mot. (GAO report on underrepresentation in Foreign Service).

Shea applied for, and received, a position as an entry-level Foreign Service Officer. See

Ex. 12 to Def.’s Cross-Mot. (Agreement to Join the Foreign Service, April 22, 1992); Ex. 13 to

Def.’s Cross-Mot. (employment form SF 50-B). Therefore, the rates of underrepresentation of

career Foreign Service generalist officers are relevant to this case. Underrepresentation in the

mid- and senior-levels is relevant because Congress specifically expressed dissatisfaction of the

minority representation at both levels, and directed State to take action to correct for these

specific imbalances. See 1986–87 FRAA, Pub. L. 100–204, Title I, § 183(b); 1988–89 FRAA,

Pub. L. 100–204, Title I, § 183(b)).

With the correct standard and object of inquiry settled, the Court reiterates that in order

for Shea to prevail, he must prove “(1) that the MLAAP was unlawful, (2) that except for his

race, Shea was qualified for the program, and (3) that Shea was damaged during the period in

question by the continuing effects of the MLAAP.” Shea, 850 F. Supp. 2d at 163. At trial, Shea

would have the burden of proving the unlawfulness of the MLAPP. See Johnson, 489 U.S. at

627. He cannot do meet this burden with admissible evidence, and thus has “fail[ed] to make a

showing sufficient to establish an element essential” to his case. Celotex, 477 U.S. at 322.

A. Shea’s Prima facie Case of Discrimination

Typically, when an “employer has asserted a legitimate, non-discriminatory reason” for

taking an adverse action against the plaintiff, “the district court need not—and should not—

decide whether the plaintiff actually made out a prima facie case under McDonnell Douglas.”

Brady v. Office of Sergeant of Arms, 520 F.3d 490, 494 (D.C. Cir. 2008) (emphasis in original).

In many instances, determining whether the plaintiff has made out a prima facie claim is “a

18
largely unnecessary sideshow,” id.—especially considering that in a “typical Title VII suit,” the

plaintiff only needs to “establish that (1) he is a member of a protected class; (2) he suffered an

adverse employment action; and (3) the adverse action gives rise to an inference of

discrimination[.]” Checka v. Rite Aid of Washington, D.C., Inc., 538 F. Supp. 2d 82, 86 (D.D.C.

2008) (citing George v. Leavitt, 407 F.3d 405, 412 (D.C. Cir. 2005)).

However, “[w]hen the plaintiff is a white male and alleges reverse discrimination…the

requirement for establishing a prima facie case changes.” Checka, 538 F. Supp. 2d at 86 (citing

Harding v. Gray, 9 F.3d 150, 153 (D.C. Cir. 1993)). Instead of showing that he is a member of a

minority group, the plaintiff must show “‘background circumstances [that] support the suspicion

that the defendant is the unusual employer who discriminates against the majority.’” Harding, 9

F.3d at 153 (quoting Parker, 652 F.2d at 1017). This requirement is “not designed to

disadvantage the white plaintiff,” but “merely substitutes for the minority plaintiff’s burden to

show that he is a member of a racial minority; both are criteria for determining when the

employer’s conduct raises an ‘inference of discrimination.’” Id. at 153.

A white male plaintiff may show background circumstances in one of two ways. First, he

“may produce evidence that his employer has reason or inclination to discriminate against the

majority.” Checka, 538 F. Supp. 2d at 87 (citing Mastro v. Potomac Elec. Power Co., 447 F.3d

843, 851 (D.C. Cir. 2006)). He may do so by presenting evidence of “political pressure to

promote a particular minority because of his race, pressure to promote minorities in general, and

proposed affirmative action plans.” Mastro, 446 F.3d at 851. Second, the plaintiff may offer

evidence that there is “‘something ‘fishy’ about the facts of the case at hand that raises an

inference of discrimination.’” Id. (quoting Harding, 9 F.3d at 153). “Evidence that a white

plaintiff was given little or no consideration for a position that was given to a minority candidate

19
or that a minority candidate was promoted over four objectively qualified white candidates has

been sufficient to show ‘something ‘fishy[.]’” Checka, 538 F. Supp. 2d at 87.

At least one district court in this jurisdiction has held that the mere “existence of an

affirmative action policy,” does not “automatically impl[y] discrimination against the majority”

for the purposes of establishing a prima facie case. Schmidt v. Chao, Civ. No. 04–892, 2006 WL

1663389, *3 (D.D.C. June 13, 2006). “Rather, there must be a causal connection between the

two, demonstrated by direct or circumstantial evidence.” Id. As an example of such a “causal

connection,” the Schmidt Court cites Bishopp v. District of Columbia, 788 F.3d 781, 786 (D.C.

Cir. 1986), where “the connection between the existence of an affirmative action plan and

reverse discrimination was made when the D.C. Fire Department promoted an African-American

candidate, with obviously-inferior credentials, over four (4) Caucasian candidates who were

better qualified.” Schmidt, 2006 WL 1663389, at *3.

To show the necessary connection, Shea may offer some evidence creating an issue of

material fact as to his qualifications for a mid-level position. In denying both parties’ motions

for summary judgment, the Court found that “State has admitted [Shea’s] qualifications by

failing to respond to proper requests for admissions.” Mem. Order 9, Aug. 11, 2009, ECF No. 69

(emphasis in original). Thereafter, State requested leave to amend its discovery responses.

Def.’s Mot. Am./Correct, Jan. 7, 2010, ECF No. 75. Over Shea’s objection, this Court held:

[I]t appears (a) that defendant’s asserted “admission” that plaintiff would have
been qualified for MLAAP occurs only by operation of the government’s failure
to respond to a request for admissions; and (b) that the failure to respond was
justifiable, given the stops and starts that have occurred in this litigation. It also
appears, however, (c) that injecting the rhetorical question of the plaintiff’s
qualifications for MLAAP at this late stage of this long-running case would not
“promote the presentation of the merits of the action,” and (d) that it would
prejudice the plaintiff in maintaining or defending the action on the merits.

20
 It is accordingly ORDERED that defendant’s motion is granted, but that, unless
the government is prepared to demonstrate that any non-minority person applied
for and was denied acceptance to MLAAP because of his or her qualifications, the
plaintiff will be deemed to have been qualified for MLAAP – except for his race
(or national origin, or ethnicity).

Order 1–2, Feb. 2, 2010, ECF No. 78 (emphasis in original). In response, State identified two

minority applicants who had applied for and were denied acceptance to MLAAP because of their

qualifications. See Decl. of Alina Eldred ¶¶ 4–11, Sept. 17, 2012, ECF No. 128-2. This misread

the Court’s Order. The Court required State to offer proof that non-minority applicants were

denied acceptance to MLAAP because of their qualifications; it said nothing about the status of

minority applicants. Since State’s submission was not responsive to this Court’s Order, the

Court deems Shea to have been qualified for MLAAP, except for his race.

State’s admission that Shea would have been qualified but for his race establishes the

necessary causal connection between the MLAAP and discrimination against the majority. The

burden of establishing “background circumstances” is “minimal,” and not intended to be “an

additional hurdle for white plaintiffs.” Harding, 9 F.3d at 153–54. Therefore, this Court finds

that Shea has demonstrated “background circumstances that support the suspicion that the

defendant is the unusual employer that discriminates against the majority,” id. at 153, and thus

has sufficiently stated his prima facie case.

B. State’s Reliance on its Affirmative Action Program

Shea has established a prima facie case of employment discrimination under Title VII.

Therefore, State has the burden of producing “admissible evidence that, if believed, would

establish that the employer’s action was motivated by a legitimate, nondiscriminatory reason.”

Teneyck, 365 F.3d at 1151. Under Johnson, the “existence of an affirmative action plan provides

such a rationale.” 480 U.S. at 627. “As a practical matter…an employer will generally seek to

21
avoid a charge of pretext by presenting evidence in support of its plan. That does not

mean…that reliance on an affirmative action plan is…an affirmative defense requiring the

employer to carry the burden of proving the validity of the plan. The burden of proving its

invalidity remains on the plaintiff.” Id. at 626–27.

The “employer’s burden is one of production, not persuasion.” Teneyck, 365 F.3d at

1151. “By producing evidence (whether ultimately persuasive or not) of nondiscriminatory

reasons,” the employer will have “sustained [its] burden of production.” St. Mary’s Honor Ctr.

v. Hicks, 509 U.S. 502, 509 (1993) (emphasis in original). Courts should not make credibility

assessments regarding the employer’s evidence; an employer meets its burden if it “introduce[s]

evidence which, taken as true, would permit the conclusion that there was a nondiscriminatory

reason for the adverse action.” Id. (emphasis in original). “The employer ‘need not persuade the

court that it was actually motivated by the proffered reasons. It is sufficient if the defendant’s

evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff.’”

Antrum v. Washington Metro. Area Transit Auth., 710 F. Supp. 2d 112, 118–19 (D.D.C. 2010)

(quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254–55 (1981)).

The question then is whether State has offered evidence which, taken as true, permits the

conclusion that State acted pursuant to a lawful affirmative action plan. To the extent this Court

discusses evidence that goes beyond merely satisfying State’s burden of production, this does not

suggest that State has—at any time—the burden of persuasion. State’s evidence concerning the

lawfulness of its plan, however, can make it harder for Shea to prove that State’s asserted non-

discriminatory reasons are merely pretext and that State employed an unlawful affirmative action

plan. See, e.g., Johnson, 480 U.S. at 626–27.

22
 1. Manifest Imbalance and Discrimination in the Workforce

There must be a manifest imbalance in the workforce, reflecting discrimination in

traditionally segregated job categories, justifying State’s adoption of an affirmative action plan.

Weber, 443 U.S. at 208. As explained by Weber and Johnson, statistically significant disparities

between minorities in the workplace and qualified minorities in the labor market may establish a

manifest imbalance. For “skilled” positions the relevant comparator group is the number of

minorities with the requisite qualifications. Johnson, 480 U.S. at 632–33 (“[I]n determining

whether an imbalance exists that would justify taking sex or race into account, a comparison of

the percentage of minorities or women in the employer’s work force with the percentage in the

area labor market or general population is appropriate in analyzing jobs that require no special

expertise…. Where a job requires special training, however, the comparison should be with

those in the labor force who possess the relevant qualifications.”). 4

Since affirmative action plans are justified by their “remedial” purpose, State must offer

some evidence of a “predicate of discrimination.” See Hammon, 826 F.3d at 80–81. Stark

statistical disparities might, by themselves, infer past discrimination by the employer. See

Johnson, 480 U.S. at 636 (manifest imbalance shown when none of the 238 skilled positions

were occupied by a women). If the statistical comparisons merely reflect general societal

discrimination—for which the employer was not responsible—the numbers alone might not

justify remedial action. See Hammon, 826 F.3d at 80–81. State is not required to “admit” to past

4
While Congress directed State to increase its minority recruitment efforts “so that the Foreign Service becomes
truly representation of the American people,” 1988–89 FRAA, Pub. L. 100–204, Title I, § 183(b), there is no
indication that State ever used the “American people” as its comparator when calculating minority
underrepresentation. Cf. Johnson, 480 U.S. at 654 (although stated long-term goal of affirmative action plan was to
reach employment levels that “approximat[ed] the distribution of women…in the Santa Clara County workforce,”
this “long-range goal was never used as a guide for actual hiring decisions” and “was merely a statement of
aspiration wholly without operational significance”). State based its short-term goals on the number of qualified
minorities in the workforce, not the number in the total labor market or general population. See generally infra; Exs.
2 & 3 to Def.’s Cross-Mot.

23
discrimination. Johnson, 480 U.S. 616, 650 (O’Connor, J., concurring) (“Although the employer

need not point to any contemporaneous findings of actual discrimination, …the employer must

point to evidence sufficient to establish a firm basis for believing that remedial action is

required[.]”). Nevertheless, there must be “evidence of at least the effects of the employer’s past

or current discrimination.” 2 LINDEMANN, GROSSMAN & WEIRICH, EMPLOYMENT

DISCRIMINATION LAW at 2526 (citing Hammon, 826 F.3d at 74–75 & n.1). Some combination of

statistical imbalance and evidence of the employer’s past or current discrimination can provide

the necessary factual predicate to justify a remedial affirmative action plan. See, e.g., id. at 2525;

Johnson, 480 U.S. at 632; Hammon, 826 F.3d at 74–75, 80–81.

a. Statistical imbalance and minority underrepresentation

The defendant offers sufficient evidence to show that a finding of significant minority

underrepresentation motivated the State Department’s adoption of its affirmative action plan. As

discussed in Part I.A. supra, the chronic underrepresentation of minorities in the State

Department—and the mid- and senior-levels of the Foreign Service in particular—had long been

an issue. Congress demanded greater minority representation at State, and closely monitored

State’s efforts to set and meet diversity goals. See 1986–87 FRAA, Pub. L. 99–93; 1988–89

FRAA, Pub. L. 100–204. Congress held hearings where representatives discussed minority

underrepresentation in the Foreign Service, explored the nature and extent of the problem, and

asked State what it was doing to fix the problem. See Underrepresentation of Women and

Minorities in the Foreign Service—State Department: Hearing Before the Subcomm. on the Civil

Service of the H. Comm. on Post Office and Civil Service, 101st Cong. (1989) (Ex. 4 to Def.’s

Cross-Mot.); The Department of State in the 21st Century: Joint Hearing Before the Subcomm.

24
on Int’l Operations of the H. Comm. on Foreign Affairs & the Subcomm. on the Civil Service of

the H. Comm. on Post Office and Civil Service, 101st Cong. (1989) (Ex. 5 to Def.’s Cross-Mot.).

In the late 1980s—directly preceding the drafting and adoption of the 1990–92

MLAAP—two reports studied the Foreign Service personnel and management systems. Thomas

Commission Report; Bremer Study Group Report. 5 Congress mandated the “Thomas Report” in

the 1988–89 FRAA; the Secretary of State himself commissioned the “Bremer Report.” See The

Department of State in the 21st Century (prepared statement of Rep. Gerry Sikorski, Chairman,

Subcomm. on Civil Service). As interpreted by Rep. Gerry Sikorski, the Chairman of the Civil

Service Subcommittee, these reports “tell [Congress] that management of the U.S. Foreign

Service is seriously flawed.” Id. The reports “show that officer training has particularly

suffered,” and address in particular the “issues of recruitment, career development and training,

the underrepresentation of women and minorities, [and] the lack of management skills[.]” Id.

In June 1989, the General Accounting Office (“GAO”) issued a report titled, “State

Department: Minorities and Women Are Underrepresented in the Foreign Service.” See Ex. 3 to

Def.’s Cross-Mot. This report found that while existing affirmative action programs had made

some progress, minorities remained underrepresented:

The State Department increased minority representation in the Foreign Service
from 7 percent in 1981 to 11 percent in 1987…. In 1987 minorities and white
women were still substantially underrepresented when compared to civilian labor
force data that the EEOC has issued to measure federal agencies.

Progress has been mixed in the FS officer and specialist categories. At the entry
level, underrepresentation in the FS officer corps has been eliminated, except for
Asian-Americans/Pacific Islanders. In the mid-level ranks of the officer corps,
minority male representation has increased, but minority and white women have
made less progress. In State’s Senior Foreign Service positions,
underrepresentation of minorities and white women is still pervasive.

5
Both reports were entered into the record during The Department of State in the 21st Century: Joint Hearing
Before the Subcomm. on Int’l Operations of the H. Comm. on Foreign Affairs & the Subcomm. on the Civil Service
of the H. Comm. on Post Office and Civil Service, 101st Cong. (1989)) (Ex. 5 to Def.’s Cross-Mot.).

25
Id. at 15 (Shea – 008689). An accompanying chart shows that, as of September 1987, females of

every race were underrepresented as senior and mid-level Foreign Service Officers, minorities of

every race were underrepresented as senior Foreign Service Officers, and Hispanics and

Asian/Pacific Islanders were underrepresented in the mid-levels. Id. at 20 (Table 2.3:

Underrepresentation of Minorities and White Women in State’s Foreign Service by Grade (As of

Sept. 1987)) (Shea – 008694).

Shea seizes on this chart—and State’s unfortunate misinterpretation of it 6—as evidence

that not all MLAAP-eligible minority groups were underrepresented. See Pl.’s Opp’n & Reply

4–6. After all, the chart showed that as of 1987 black and Indian/Alaskan males were fully

represented in the Foreign Service Officer mid-levels. However, this chart neither undermines

State’s evidentiary proffer that the MLAAP was lawful, nor proves that the MLAAP was

unlawful. First, the GAO report acknowledged the limitations of its numbers—the agency had to

compare 1987 State Department employment data with a 1980 comparator population:

The criteria established by the EEOC is based on 1980 census data, but
considerable change has occurred in the civilian labor force since 1980. If these
changes were considered in analyzing State’s representation, the extent to which
minorities and women are underrepresented would be worse than depicted in table
2.3. Bureau of Labor Statistics data shows that blacks, Hispanics, and white
women have increased their representation in the civilian labor force in recent
years.

6
In a rather serious mistake, State used this chart in its Cross-Motion for Summary Judgment to show that “in 1987
there were no African-American, Hispanic, or Indian males in mid-level positions.” Pl.’s Cross-Mot. Summ. J.
12 (emphasis in original). Worse still, State bolded this language, drawing special attention to its mistake. Digging
the hole deeper, State was repeating a mistake they had made previously—and had filed an errata to correct. See
Def.’s Reply ISO its Second Mot. Reconsideration 6, May 18, 2011, ECF No. 98 (stating the same incorrect
statement verbatim, minus the bolding); Errata to Def.’s Reply ISO its Second Mot. Reconsideration 1, May 25,
2011, ECF No. 100 (admitting that the chart “actually shows a comparison” of workforce and census data “to
demonstrate that, under current EEOC criteria, the underrepresentation of minority males in some levels of the
Foreign Service was ‘0’”).
Perhaps State did not take its pro se opponent seriously. The Court warns State that such sloppy lawyering could
have cost State dearly if State had the burden of persuasion, rather than simply the burden of production. If this
were a constitutional challenge—and strict scrutiny applied—State may have failed to justify the MLAAP based on
the record submitted.

26
Ex. 3 to Def.’s Cross-Mot. 21 (Shea – 008695). Hammon made clear that a court must use the

most recent available data when determining whether there is a manifest imbalance. 826 F.3d at

77–78. When State adopted the 1990–92 MLAAP, it had more recent work force data available.

See Ex. 2 to Def.’s Cross-Mot. 47–47a (Shea – 00116–17) (discussed in more detail infra).

Second, Shea’s criticism takes a narrow view of the MLAAP. The MLAAP may work to

increase minority representation not only in the mid-levels, but also in the senior-levels. Table

2.3 shows across-the-board minority underrepresentation in the senior-levels. Ex. 3 to Def.’s

Cross-Mot. 20 (Shea – 008694). Mid-level minority placement may not be necessary for all

groups, if the only concern was underrepresentation in the mid-levels. However, mid-level

placement helps alleviate the significant underrepresentation of minorities in the senior levels by

making more minorities eligible for promotion into the Senior Foreign Service. Viewed this

way, Table 2.3 does not undermine State’s evidentiary proffer. 7

When State formally adopted the revised 1990–92 MLAAP, it made additional findings

about manifest imbalance based on more recent work force and labor pool data. The document

describing the 1990–92 MLAAP includes several analyses of the State Department workforce,

and which job categories had a “manifest imbalance” for which groups. See Ex. 2 to Def.’s

Cross-Mot. 45–53a (Multi-Year Affirmative Action Plan FY 1990–92) (Shea – 00108–33). In

making these comparisons, officials compared State employment data from FY 1989 and 1990

with the most recent Occupational National Civilian Labor Force Data for Public Administration

Administrators and Officials. See id. at 47 (Shea – 00116). The analysis of Foreign Service

7
This may be a generous reading of Table 2.3, but that is what is required at this stage. State does not need to
convince the Court that its plan was lawful. To meet its burden of production, “[t]he employer ‘need not persuade
the court that it was actually motivated by the proffered reasons. It is sufficient if the defendant’s evidence raises a
genuine issue of fact as to whether it discriminated against the plaintiff.’” Antrum, 710 F. Supp. at 118–19 (quoting
Burdine, 450 U.S. at 254–55).

27
Generalists showed a “manifest imbalance” for “White females, Black males, Black females,

Hispanic females, American Indian males, [and] American Indian females.” Ex. 2 to Def.’s

Cross-Mot. 47 (Shea – 00116). The document also showed that within the Senior Foreign

Service “minority officers were promoted at a lower rate (3.7 percent) than White males (8.8

percent) or White females (9.0 percent).” Id. at 74 (Shea – 00153). Minorities were also

promoted from the lower-levels to the mid-levels—and within the mid-levels—at a lower rate

than white men or women. Id. While the data showed that minorities were promoted from class

FS-01 8 to the Senior Foreign Service at a marginally higher rate, id., the plan warned that:

It is important to note, however, that promotion rates at the senior levels are based
on a very small number of eligible minorities and White women. For example,
Black females were promoted to the Senior Foreign Service at a 33-percent rate (2
of 6) compared with an 11-percent rate for White males (170 of 1,518).

Id. at 75 (Shea – 00154). The fact that there were so few minorities even eligible for promotion

into the Senior Foreign Service skewed the statistics regarding promotion rates.

“Over-inclusiveness” charges can also be levied at the 1990 data. The 1990–92 plan

document does not show that all minority groups eligible for the MLAAP were in fact

underrepresented in the mid-levels. However, this does not necessarily undermine State’s

evidentiary proffer. First, as detailed supra, mid-level minority hiring not only immediately

cured imbalances in the mid-levels, but created more opportunities for minorities to ascend to the

Senior Foreign Service. As the 1990–92 plan noted, very few minorities were eligible for

promotion into the Senior Foreign Service. Id. Second, while the MLAAP was “open” to all

EEO minority groups, the plan only established representation goals for groups for which it

found a “manifest imbalance.” See id. at 54 (for Foreign Service Generalists, establishing goals

to increase the representation of white females, black males, black females, Hispanic females,

8
FS-01 being the highest “mid-level” Foreign Service Officer class. See Def.’s SMF ¶ 11; Pl.’s SMF Resp. 10
(admitting Def.’s SMF ¶ 11).

28
American Indian males, and American Indian females—the same groups the plan identified

earlier as being underrepresented) (Shea – 00134). Or as the defendant puts it, “the 1990–1992

MLAAP corrected for the weakness identified by the GAO…and specifically identified the

manifest imbalance in each specific minority group within which Foreign Service ‘conal system’

(Administrative, Consular, Economic and Political), as compared to the more timely data for a

comparator population, and then set goals for only those under-represented groups.” Def.’s

Reply ISO its Cross-Mot. Summ. J. 12 (“Def.’s Reply”), Oct. 3, 2012, ECF No. 133 (citing Ex. 2

to Def.’s Cross-Mot 46–46b, 47–47a, 50–51b, 54, 61–67).

b. Showing of a predicate of discrimination

The bare numbers only tell one side of the story. State does rely solely on a statistical

imbalance in the mid- and senior-levels. It has also provided evidence regarding past

discrimination in the Foreign Service and institutional and systemic barriers to minority

advancement. State has provided enough evidence to show a “predicate of discrimination”

implying the statistical imbalances are due in part to some past discrimination by State, rather

than simply reflecting societal discrimination. See Hammon, 826 F.3d at 74–75, 80–81.

State’s hiring and promotion practices had been the subject of many employment

discrimination lawsuits. See Underrepresentation of Women and Minorities in the Foreign

Service (statement of Rep. Sikorski) (detailing history of discrimination suits against State,

stating: “This is not a new phenomenon. The department has lost a lot of money in a variety of

litigation regarding discrimination.”). State, and the Foreign Service in particular, drew the ire of

Congress. The Thomas and Bremer Reports, discussed supra, went beyond calculating rates of

minority representation. With a particular emphasis on the Foreign Service, the reports

examined which practices contributed to—and exacerbated—minority underrepresentation. The

29
reports identified systemic and procedural barriers to minority hiring and advancement. See

Thomas Comm. Report; Bremer Study Group Report; The Department of State in the 21st

Century (prepared statement of Rep. Gerry Sikorski). These findings were echoed by officials

from the GAO, who concluded that “some of State’s hiring, promotion, and assignment

processes have a disproportionate effect on minorities and women.” Underrepresentation of

Women and Minorities in the Foreign Service, (statement of Joseph Kelly, Director, Security &

Int’l Affairs Div., GAO). These reports focused on recent issues—not, as in Hammon, issues

buried deep in the past. 826 F.3d at 77–78 (employer may not rely on findings of discrimination

from decades ago, but should justify its plan with evidence of more recent discrimination).

Prior to the adoption of the 1990–92 MLAAP, some officials concluded that the Foreign

Service was “discriminatory.” For example, Rep. Sikorski, Chairman of the House Civil Service

Subcommittee, held a hearing on September 22, 1989, titled, “Underrepresentation of Women

and Minorities in the Foreign Service.” See Ex. 4 to Def.’s Cross-Mot. In his introductory

remarks, Rep. Sikorski called the Foreign Service an “old-boys club,” and cited a litany of

studies and lawsuits charging the State Department with discrimination. Id. He noted that “[t]he

necessity and extent of legal action [against State] raises serious questions about the

department’s commitment to creating a workplace free of discrimination.” Id. For example,

from 1976 to 1986, over 240 EEO cases were filed against State; and in 1985, 1986, and 1987

the State Department violated a consent decree it voluntarily entered into to settle an earlier

discrimination suit. Id. Rep. Sikorski noted that the minorities and women who were hired into

the Foreign Service were disproportionally placed into less prestigious jobs, from which

advancement to the senior-levels was more difficult. Id. In a later hearing, Rep. Sikorski stated

that, in addition to the findings of the Bremer and Thomas Reports, “[i]nvestigations and

30
hearings conducted by the Subcommittee of the Civil Service have also documented serious

instances of discriminatory treatment by the Foreign Service of women, minorities, and people

with handicaps.” The Department of State in the 21st Century (prepared statement of Rep. Gerry

Sikorski) (going on to list specific findings of discrimination in the Foreign Service).

Several of the witnesses who appeared before the congressional subcommittee—those

with first-hand knowledge of the workings of State—testified about discrimination in the Foreign

Service. See, e.g., Underrepresentation of Women and Minorities in the Foreign Service

(prepared testimony of Mary Lee Garrison, Co-President, State Dep’t Chapter, Women’s Action

Org.) (“Instances of blatant sexism and discrimination have declined, although some still take

place, but a simple glance at the statistics contained in the recent GAO report…will confirm the

continued existence of a problem.”); Underrepresentation of Women and Minorities in the

Foreign Service (prepared statement of Clarence E. Hodges, Member, Management Council of

the Dep’t of State) (Calling some of State’s positions on its equal opportunity promotion

“indefensible,” citing “too little progress and unacceptable behavior in this regard.” All around

the world, Mr. Hodges “encountered complaints of discrimination from our employees and

criticisms from foreigners for that same discrimination as exhibited by our predominately white

male diplomatic corps.”); Underrepresentation of Women and Minorities in the Foreign Service

(prepared testimony of Charles Hughes Jr., Vice President for the State Dep’t Thursday

Luncheon Group) (“I entered on duty in State in late 1965 and had my first experience with

discrimination, aside from what I had experienced while stationed in the South. …[W]hile there

are some very good, progressive minded people at State, there are also those who find it much

easier to deny fair treatment to some, and thus keep faith with their peers.” *** “Minorities

31
have been underrepresented purposely, and the rationale of improperly applied statistics, have

provided the relief for the consciences of the establishment.”).

When the Court looks at the whole picture—statistical findings of minority

underrepresentation and lower promotion rates, history of discrimination lawsuits, reports

finding systemic flaws at State, repeated congressional oversight and criticism, testimony from

knowledgeable witnesses that the Foreign Service was discriminatory—it finds that State has met

its evidentiary proffer of showing a proper factual predicate for its affirmative action plan. It

has provided enough evidence for a reasonable jury to conclude that the MLAAP was justified

by correcting a manifest imbalance in the mid- and senior-levels of the Foreign Service, and it

served to remedy the lingering effects of State’s past discrimination.

2. Avoiding Unnecessarily Trammeling the Interests of Non-Minorities

Even if there is a manifest imbalance in the workplace, State must still design and

implement its affirmative action plan in a way that does not unnecessarily trammel the interests

of non-minorities or create an absolute bar to the advancement of non-minorities. Weber, 443

U.S. at 208; Hammon, 826 F.3d at 81. The plan must consider race-neutral alternatives and be

carefully tailored to remedy the problem at hand. Hammon, 826 F.3d at 81. It must be a

temporary measure designed to “eliminate a manifest racial imbalance” rather than “maintain a

racial balance.” Weber, 443 U.S. at 208. The plan should pay special attention to how it

accomplishes its goals, and the extent to which its methods burden non-minorities. Johnson, 480

U.S. at 616, 637–38. Courts prefer flexible, case-by-case approaches over rigid quota systems.

See, e.g., id. at 631–32; Paradise, 480 U.S. at 177–78 (plurality opinion), 188 (Powell, J.,

concurring); Local 28, Sheet Metal Workers v. EEOC, 478 U.S. 421, 447 (1986).

32
 a. Considering alternatives to explicit racial preferences
and narrow tailoring of the program

An important factor is the extent to which the employer considered other ways to increase

diversity in the workplace. Cf. Hammon, 826 F.3d at 81 (“[B]ecause available race-neutral

alternatives were not considered, the District’s race-based hiring methods were not properly

tailored to its remedial purposes.”). An employer should strive to achieve its EEO goals through

less restrictive means such as minority recruitment, educational programs, and training. See

Duffy v. Wolfe, 123 F.3d 1026, 1039 (8th Cir. 1997) (readily approving of efforts to increase the

pool of female and minority applicants through outreach and recruiting programs). If the

employer believes these programs, alone, cannot yield acceptable results, it may consider race-

conscious hiring and promotion policies. The employer should not give the race of the applicant

more “weight” than is necessary to meet the goals. Hammon, 826 F.3d at 81 (“Johnson does

nothing to disturb the longstanding requirement that the remedy crafted to cure a violation must

be tailored to fit the violation.” (citing Sheet Metal Workers, 478 U.S. 421)).

State’s evidence shows it had implemented its affirmative action plan after its past

recruitment and outreach plans were found lacking. Studies found that State’s efforts throughout

the 1980s to increase minority representation were not satisfactory and were progressing too

slowly. See, e.g., Underrepresentation of Minorities and Women in the Foreign Service

(prepared statement of Joseph Kelly, Director of Security & Int’l Rel. Issues, Nat’l Security &

Int’l Affairs Div., GAO). “[T]he EEOC repeatedly pointed out that the State Department has not

had an effective affirmative action plan or program for overcoming the underrepresentation in

the Foreign Service.” Id. at 1 (Shea – 008662). The State Department adopted minority mid-

level hiring after repeated prodding by Congress, the EEOC, and other government entities. See

33
generally Underrepresentation of Women and Minorities in the Foreign Service; The

Department of State in the 21st Century.

As discussed supra, there may be some initial concerns over whether the program was

properly tailored. Courts have expressed concern over affirmative action plans that provide

preferences to all minorities, whether or not all of those groups were underrepresented in the

employer’s workforce. See, e.g., Alexander v. Estepp, 95 F.3d 312, 316 (4th Cir. 1996)

(invalidating, under constitutional standard, affirmative action plan because it benefited all

minority groups rather than merely discriminated-against African Americans). The 1990–92

MLAAP waived the “certificate of need” requirement for some minority groups that were not

found to be underrepresented in the mid-levels. As explained in greater detail supra, this “over-

inclusiveness” is not fatal when the 1990–92 MLAAP only set minority hiring goals where State

had found a manifest imbalance, and State had found across-the-board minority

underrepresentation in the Senior Foreign Service. The MLAAP involved case-by-case, targeted

recruitment of exceptional minority candidates, and considered the enhanced need for candidates

from particular minority groups and backgrounds. See, e.g., Ex. 1b to Def.’s Cross-Mot.

b. Whether the plan is “temporary” in design and fact

Whether or not the affirmative action plan is “temporary” is another important factor to

consider. Courts favor temporary plans to attain racial balance and disfavor indefinite plans to

maintain such a balance. Plans that remain in effect long after the employer achieves the desired

balance seem less about remedying the lingering effects of past discrimination, and more about

permanently providing special protections to certain groups. See, e.g., Taxman v. Board of Educ.

of Tp. of Piscataway, 91 F.3d 1547, 1564 (3d Cir. 1996). Shea claims the MLAAP was not

temporary because it did not have a definite end date. Pl.’s Mot. Summ. J. 10–11. Shea makes

34
this argument despite the fact that State ended the MLAAP in February 1993 and did not replace

it with a similar affirmative action plan. Def.’s SMF ¶ 17; Pl.’s SMF Resp. 12 (admitting Def.’s

SMF ¶ 17). Cf. Hannon v. Chater, 887 F. Supp. 1303, 1318 (N.D. Cal. 1995) (plaintiff cannot

meet burden of showing plan was not temporary when program, in fact, ended). While courts

may require definite end dates for plans that impose quotas or other rigid formulae, they typically

do not require such end dates for more flexible plans. See Johnson, 480 U.S. at 639–40

(“Express assurance that a program is only temporary may be necessary if the program actually

sets aside positions according to specific numbers.”).

State introduced sufficient evidence to show the MLAAP was temporary in fact and by

design. When State originally adopted the MLAAP, it stated that its “new Mid-Level program

will be a temporary supplement to, and adjunct of, the Junior Officer Program,” and “will be

appraised annually to determine whether it needs to be continued[.]” Ex. 1b to Def.’s Cross-

Mot. 3 (Shea – 008649). In fact, the MLAAP underwent continuous monitoring to determine

whether the plan was meeting its goals, and whether race-based preferences continued to be

necessary to meet those goals. See 1986–87 FRAA, Pub L. 99–33, Title I, § 152(c) (Congress

required annual reports on the “progress being made increasing, through advancement and

promotion, the numbers of members of minority groups and women in the mid-levels of the

Foreign Service.”); Ex. 2 to Pl.’s Mot. (March 19, 1993 State review of the effectiveness and

continuing need for the MLAAP); Ex. 2 to Def.’s Cross-Mot. (indicating annual EEO audits and

quarterly tracking of progress and problem areas through EEO Quarterly Reporting System).

Close and periodic monitoring may show that the plan was temporary. See McNamara v. City of

Chicago, 867 F. Supp. 739, 752 (N.D. Ill. 1994) (where affirmative action plan reevaluated on

annual basis in order “to insure flexibility and to guarantee that the rations are used only so long

35
as they are necessary and appropriate” it satisfies second element of Weber and Johnson); See

also Grutter v. Bollinger, 539 U.S. 306, 342 (2003) (“durational requirement can be met by

sunset provisions in race-conscious admissions policies and period reviews” to determine

ongoing need for plan). State has met its burden of production to show that the MLAAP was a

temporary measure designed to attain—not maintain—full minority representation.

c. Whether the plan forecloses opportunities for
non-minority hiring and advancement

Another factor to consider is whether the MLAAP forecloses opportunities for non-

minority hiring and advancement. See, e.g., Johnson, 480 U.S. at 637–38. The MLAAP did not

impose an “absolute bar” on non-minority “advancement.” Id. At all relevant times, State had a

general mid-level hiring program open to white males—the Mid-Level Foreign Service Career

Candidate Program. See, e.g., Exs. 1A & 1B to Def.’s Cross-Mot. (1982 and 1987 Mid-Level

Foreign Service Career Candidate Programs). The eligibility requirements for this program were

the same as the MLAAP, except an applicant under the MLCCP needed an individual

certification of a “need for an outside hire at the grade and in the functional field…in which the

person is applying.” Ex. 2 to Pl.’s Mot. Summ. J. 5 (March 19, 1993 Foreign Service Mid-Level

Hiring Program Highlights); see also Def.’s SMF ¶¶ 10, 12–17; Pl.’s SMF Resp. 10–11

(admitting in all relevant respects Def.’s SMF ¶¶ 10, 12–17). While the challenged affirmative

action plan was in effect, several non-minority candidates were placed into mid-level positions

through the MLCCP. See Ex. 16 to Def.’s Cross-Mot.; Def’s SMF ¶¶ 27–36; Pl.’s SMF Resp.

14–16 (admitting in all relevant respects Def.’s SMF ¶¶ 27–36).

Moreover, Shea could progress to the mid-levels through the ordinary course of

promotions. The MLAAP did not bar Shea from reaching the mid-levels but—by Shea’s own

admission—served to delay his ascension into the mid-levels. See Pl.’s Mot. Summ. J. 27–36.

36
Shea has, in fact, been promoted to the mid-levels of the Foreign Service; at the time of his

Complaint, Shea was at grade FS-03, step 5. See Compl. ¶ 6(c). Several courts have approved

of plans that delay, but do not bar, promotion opportunities. See, e.g., Paradise, 480 U.S. at 183

(“‘Denial of a future employment opportunity is not as intrusive as loss of an existing job,’ and

plainly postponement [of a promotion] imposes a lesser burden still.” (quoting Wygant, 476 U.S.

at 283)) (plurality opinion); Johnson, 480 U.S. at 638 (“[P]etitioner had no absolute entitlement

to the” higher-level job. “Thus, denial of the promotion unsettled no legitimate, firmly rooted

expectation on part of the petitioner. Furthermore, while petitioner in this case was denied a

promotion, he retained his employment with the Agency…and remained eligible for other

promotions.”); McNamara, 867 F. Supp. at 751–52 (plan avoided unnecessarily trammeling

interests of non-minorities as it delayed, not barred, promotion of non-minorities).

d. The nature of the plan and the extent to
which it burdened non-minorities

The Court also considers the nature of the program, and the extent to which it burdened

non-minorities. The MLAAP does “not require the discharge of white workers and their

replacement with new black hires.” Weber, 443 U.S. at 208. See also Wygant, 476 U.S. at 282–

83 (expressing concern about burden layoffs place on non-minorities); Firefighters v. Stotts, 467

U.S. 561, 574–76 (1984) (same). The MLAAP involved hiring goals, and in such cases:

[T]he burden to be borne by innocent individuals is diffused to a considerable
extent among society generally. Though hiring goals may burden some innocent
individuals, they simply do not impose the same kind of injury that layoffs
impose. Denial of a future employment opportunity is not as intrusive as loss of
an existing job.

Wygant, 476 U.S. at 283–83. State’s minority-hiring goals were not accompanied by any

minority-hiring quotas—State was not required to hire a particular number of minorities. See Ex.

2 to Pl.’s Mot. Summ. J. 5, (March 19, 1993 Foreign Service Mid-Level Hiring Program

37
Highlights: “Our hiring goal each year for the affirmative action mid-level program has been

about twenty. As you will observe by the hiring statistics…we have not come close to our

target.”). At no time did State bind itself to hire a certain number of minorities each year; State

noted that it was focused the quality of its minority candidates, not the quantity it could hire. See

Ex. 1b to Def.’s Cross-Mot. (“Success will be measured by the quality of the future mid-level

candidates hired, and their subsequent performance in the Foreign Service, rather than by

whether or not specific numerical hiring goals are met each year[.]”).

State thoroughly vetted minority candidates, taking far more than thier race into account.

The MLAAP required “pre-certification based on a file review, an oral assessment conducted by

the staff of the Board of Examiners and the normal background investigation, medical

examination and Final Review to determine suitability for appointment to the Foreign Service.”

Ex. 2 to Pl.’s Mot. Summ. J. 5. The MLAAP candidate must have had a “bachelor’s degree from

an accredited college or university;” “six additional years of professional level education and/or

professional work experience of which three years must have been in an area related to the

prospective Foreign Service functional field;” and “supervisory/managerial skills.” Id. The

MLAAP did not assign a set “point” value to minority status.

The MLAAP was “identical” to the more general mid-level hiring program, except that

membership in a minority group substituted for an individual certificate of need. Id. Once those

qualified minority candidates applied, they were subject to the same rigorous process as non-

minority applicants. See Ex. 7 to Def.’s Cross-Mot. (Nov. 1990 State document describing the

requirements and application process for both the MLCCP and MLAAP). Cf. Johnson, 480 U.S.

at 638 (approving of plans that “consider[] race along with other criteria”); Hammon, 826 F.3d at

79–80 (agreeing with Johnson’s approval of a “‘moderate, flexible, case-by-case approach’” and

38
stressing need for sufficient “screening considerations” to avoid “‘mere bling hiring by the

numbers’” (quoting Johnson, 480 U.S. at 636–37)). 9

While State was interested in increasing the number of minority Foreign Service officers,

it strongly emphasized the quality and accomplishments of its minority recruits. The 1990–92

MLAAP plan document says that “State is committed to forging a workforce that fully represents

the American diversity without sacrificing excellence.” Ex. 2 to Def.’s Cross-Mot. 61 (Shea –

00140). The 1990–92 MLAAP aimed to “emphasize selective recruiting of potential candidates

on a one-by-one basis[.]” Id. The refined plan concentrated “on quality candidates who are

unquestionably successful in their current careers and who have been individually recommended

by people who know both the candidate and the requirements of the Foreign Service.” Id. This

was done despite State’s knowledge that it was “dramatically reduc[ing]” the “number of

[minority] applications processed.” Id.

State proffers evidence that it screened out many interested minority candidates who did

not meet the requirements. Id. State submits evidence that it did not place at least two eligible

minority applicants in mid-level positions after those candidates applied. Decl. of Alina Eldred

¶¶ 4–11. This happened despite the fact that State did not meet its minority hiring goals at any

time during the MLAAP. See Def.’s SMF ¶ 19 (“Despite the expressed goal of hiring 20 mid-

9
Shea argues that the MLAAP is not flexible—“race acted as an absolute bar to participation in the MLAAP.” Pl.’s
Mot. Summ. J. 5. Shea is technically correct that he was ineligible to apply through the MLAAP because of his
race. See id. at 4–7. Shea, however, had an opportunity to apply for direct mid-level placement through the
MLCCP, which was substantially identical to the MLAAP. See Ex. 7 to Def.’s Cross-Mot. (describing, in detail,
requirements of both programs). At times, State has spoken of them as if they were two parts of the same program:
The Mid-Level Foreign Service Career Candidate Program is designed to hire office candidates at
the ranks of FP–3, 2 and 1 to supplement the number of Career Foreign Service Officers already in
those grades, in accordance with the needs of the Foreign Service. The need is either specific—
for an offer at the grade and in the cone which an applicant is seeking to enter; or general—for
minority group members under the Department’s Affirmative Action Program to achieve
greater representativeness un the Foreign Service.
Id. at Shea – 3448 (emphasis added). Shea’s argument trades heavily on semantic differences—i.e., it doesn’t
matter that I was eligible for the MLCCP, because I was ineligible for the MLAAP—rather than focusing on the true
nature of the program, and considering whether it unfairly shut out or burdened non-minorities.

39
level minorities per year…, less than 6 minorities per year were placed in the mid-levels of the

Foreign Service, totaling approximately 29 minorities (male and female) during the five-year

period of the MLAAP’s existence.”); Pl.’s SMF Resp. 13 (admitting Def.’s SMF ¶ 19).

State has met its burden of production that it properly tailored its affirmative action plan

so that it would not unnecessarily trammel the interests of non-minorities.

C. Shea’s Attempt to Prove that the Affirmative Action Plan is Invalid

With State meeting its burden of production, Shea must offer sufficient, potentially

admissible 10 evidence that the MLAAP was unlawful—that State’s proffered evidence is not

worthy of credence and State illegally discriminated against white males. If Shea fails to raise a

genuine issue of material fact with admissible evidence, State will prevail. If there is a failure of

proof by Shea, State does not have to affirmatively and ultimately prove that the MLAAP is

lawful. See Johnson, 480 U.S. at 627 (employer’s burden is one of production, not of ultimate

proof); Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 885 (1990) (“Rule 56 does not require the

moving party to negate the elements of the nonmoving party’s case.”).

1. Shea’s Calculations of the Rate of Minority Representation

Shea’s primary evidence is that State’s numbers show that “minorities overall were

actually overrepresented in the mid-level grades…by September 30, 1989.” Pl.’s Mot. Summ. J.

3 (emphasis in original). Shea states, “It is self-evident that when minorities are overrepresented,

the job category is not one that is ‘traditionally segregated.’ …[A] program is not remedial when

10
A “party opposing summary judgment may only rely on evidence ‘capable of being converted into admissible
evidence at trial’ to ‘survive summary judgment.’” A.N.S.W.E.R. Coal. v. District of Columbia, __ F. Supp. 2d __,
2012 WL 5974030, *14 n.5 (D.D.C. Nov. 29, 2012) (quoting Greer, 505 F.3d at 1315). Evidence that may not be
admissible at trial, but is capable of being converted into admissible evidence, includes (for example) sworn
affidavits that themselves could run afoul of the Sixth Amendment’s Confrontation Clause, but could be “converted”
into admissible evidence by having the affiant testify at trial or in a deposition. See id. (citing Gleklen v. Dem.
Congressional Campaign Comm., Inc., 199 F.3d 1365, 1369 (D.C. Cir. 2000)).
With this in mind, when the Court speaks of “admissible evidence,” it is really using that phrase as a shorthand for
“evidence that is admissible or capable of being converted into admissible evidence.”

40
there is no underrepresentation to be remedied, and [] it is impossible to properly tailor a

remedial program when there is no underrepresentation to remedy.” Id. To support his position,

Shea “use[d] lots of numbers and g[ave] the results of lots of calculations[.]” Id. at 12. Shea

describes his method thusly: First, he took the “numbers of FSOs at each grade, broken down by

race and sex, as of September 30, 1989” from State’s FY 1990–92 FY MLAAP document. Id. at

12–13. See also Ex. 2 to Pl.’s Mot. Summ. J. (Shea’s edited copy of the plan, with additional

charts created by Shea). Second, he added “the numbers for male and female officers of each

race…to determine totals for any given race at any given grade.” Id. at 13. He then used the

NCLF Public Administrator figures, available at page 47a of the plan, as his comparator group.

Id. (citing Ex. 2 to Pl.’s Mot. Summ. J. at 47a (Shea – 00177)). Shea again combined the

gender-specific NCLF data to provide one total number for each racial group. Id. at 14.

Shea then performed a series of calculations comparing white representation with

minority representation. He concludes that “whites were underrepresented in the Foreign

Service mid-level grades,” as “[w]hites comprised 85.58 of the Foreign Service mid-level

officers” but “comprised 86.1 percent of the Public Administrator” comparator pool. Id. at 15.

Shea then performed a series of calculations of white versus minority group representation at

various mid-level grades, concluding that his numbers show a vast majority of minority groups

were not underrepresented at the mid-level grades. Id. at 15–27. He did not use a commonly-

accepted method, such as the standard deviation or the “Z statistic” method, to explain the

statistical significance of his findings. See Hazelwood School Dist. v. United States, 433 U.S.

299, 308 n.14 (1977) (standard deviation method); Frazier v. Consolidated Rail Corp., 851 F.2d

1447, 1451–52 (D.C. Cir. 1988) (Z statistic method).

41
 2. How Shea’s Analysis Differs From State’s

Congress, the GAO, and State had long railed against the overrepresentation of white

males in the Foreign Service, especially at its mid- and senior-levels. See supra Parts I.A., III.B.

But Shea shows—using State’s own numbers—that whites were actually underrepresented in the

Foreign Service mid-levels. See Pl.’s Mot. Summ. J. 3. What explains this difference? Shea has

widened the comparator pool. Shea concedes that white males were overrepresented, but

dismisses this fact as “irrelevant.” Pl.’s Opp’n & Reply. 7. To Shea, the relevant question isn’t

whether white males are overrepresented, but whether whites as a whole are overrepresented.

State provided numbers broken down by both race and gender, see generally Ex. 2 to Def.’s

Cross-Mot., but Shea combined the gender figures for each race to determine the rates of

representation by race only, rather than by race and gender, see Pl.’s Mot. Summ. J. 12–27.

Instead of comparing white males to white women, black males, et cetera, Shea simply compares

whites to blacks, Asians, Hispanics, et cetera. When the numbers are looked at this way, Shea

argues, one finds that whites are actually underrepresented in the mid-levels, and thus the

MLAAP cannot have any legitimate remedial purpose. Pl.’s Mot. Summ. J. 3, 12–27.

State raises questions about Shea’s analysis, claiming Shea “manipulated the data in his

Memorandum of Points and Authorities by combining the population of White male employees

(who were significantly over-represented) with White female employees (who were grossly

under-represented).” Def.’s Cross-Mot. 14. State argues that since “the initial Congressional

mandate (comparing White males with all other race/gender groups)” and State had

“implemented programs to address the racial/gender disparities,” Shea’s “decision to focus on

race alone makes no sense, other than as an attempt to ‘smooth out’ the difference and thereby

‘create’ an entirely new parameter of facts to support his position.” Id. at 14–15.

42
 State’s position has some support. First, the evidence suggests that Congress was

concerned specifically with white male overrepresentation, rather than the overrepresentation of

whites generally. See, e.g., 1986–87 FRAA, Pub. L. 99–33; 1988–89 FRAA, Pub. L. 100–204;

Underrepresentation of Women and Minorities in the Foreign Service—State Department:

Hearing Before the Subcomm. on the Civil Service of the H. Comm. on Post Office and Civil

Service, 101st Cong. (1989). Second, State had separate programs aimed at increasing female

representation. See Def.’s SMF ¶ 4; Pl.’s SMF Resp. (admitting Def.’s SMF ¶ 4). Third, courts

have been suspicious of efforts to distort the data by inflating or artificially restricting the

comparator groups. See Johnson, 480 U.S. at 636 (“[H]ad the Plan simply calculated imbalances

in all categories according to the proportion of women in the area labor pool, and then directed

that hiring be governed solely by those figures, its validity fairly could be called into question.”);

Smith v. Virginia Commonwealth Univ., 84 F.3d 672, 677 (4th Cir. 1996) (“An inflated pool can

undermine the validity of a statistical study to determine imbalances.”); Reynolds v. Sheet Metal

Workers Local 102, 498 F. Supp. 952, 967–69 (D.D.C. 1980) (questioning relevance and

significance of statistical analyses that inflate number of minorities in comparator pools).

It is not readily apparent from Shea’s summary judgment motion why he combines males

and females to create the relevant comparator groups. This is the Court’s best guess, based on

scattered comments from Shea’s briefs: Since the MLAAP is not open to white women, the

underrepresentation of white women is not relevant to justifying the MLAAP. Since the

MLAAP excluded Shea because of his race, rather than his gender, the pertinent question is

whether whites—rather than white males—were overrepresented in the mid-levels of the Foreign

Service. In his opposition brief, Shea does not fully address State’s challenges to using whites as

the comparator pool. He seems to misunderstand State’s argument, stating: “The defense

43
emphasis on how ‘grossly’ overrepresented white males were in 1987 seems part of an effort to

convince the court to add an element to a Title VII claim asserting a lawful [affirmative action

plan]: that the plaintiff was part of a group that was under-represented in the workforce.” Pl.’s

Opp’n & Reply 8. State responds that it “has never alleged that the Plaintiff ‘lacks standing’ to

raise a claim merely because he is a member of an over-represented group in the workplace,” and

finds no explanation as to why Shea combined white males and females in his analysis. Def.’s

Reply 5. The Court agrees that it is not entirely clear why Shea chooses this comparator pool.

What should be clear, however, is that Shea is engaging in a new statistical analysis. He

is changing the comparator group that State used to justify its affirmative action plan, and

recalculating rates of representation based on Shea’s preferred comparator groups. State raises

serious concerns about Shea’s methods and use of comparator pools. Without deciding whether

State’s criticisms are valid, the Court notes that the questions they raise are serious and have not

been adequately addressed by Shea, as the following analysis will show.

3. Shea Conducts a Statistical Analysis He is Not Competent to Perform

Essentially, Shea performs a statistical analysis of State’s data to show that there was, in

fact, no “manifest imbalance” in the Foreign Service. Whether or not Shea needs an expert to

perform this analysis, it is clear that Shea has not adequately explained his methods or

demonstrated the statistical significance of his results. His analysis of State’s racial over- and

underrepresentation is not, and is not capable of being transformed into, admissible evidence.

a. Courts demand some evidence of the statistical significance
of statistics, often presented via an expert witness

The case law in this circuit overwhelmingly finds that this kind of analysis requires proof

as to its statistical significance. In Frazier v. Consolidated Rail Corporation, 851 F.2d 1447,

1450 (D.C. Cir. 1988), the D.C. Circuit made the fundamental statement that while the use of

44
statistical analysis has “become routine” and “well accepted” in discrimination cases, “[a]

statistical calculation relies on a number of underlying assumptions, the validity of which can

often be assessed only by those with experience in the field.” In Frazier, the plaintiffs did not

use “an expert to explain the statistical calculations to the district court,” but submitted raw data

about disparate treatment and “several results of numerical calculation performed by counsel.”

Id. “These calculations were all done according to widely known methods previously reported in

other discrimination cases, regulations and commentaries” and included a “Z statistic”

calculation to explain the statistical significance of the results. Id. While not deciding whether

expert witnesses are required for this kind of analysis, the D.C. Circuit stressed the importance of

verifying the significance of the statistics, and upheld the district court’s evidentiary findings:

We are not prepared to say that the Z statistic calculation is so simple and straight
forward that an expert is never required to explain it to a finder of fact. Nor do
we wish to be understood as holding that an expert is always required. We leave
both possibilities open because it would be impossible to anticipate the impact of
this theory upon every conceivable factual situation. We believe that in the
factual context of this case, the district court made a valid finding that the
plaintiffs’ proffered statistics were not sufficiently presented to make out a prima
facie case of adverse impact.

Id. at 1453.

Courts in this Circuit have continued to require evidence of statistical significance—often

provided by experts—before giving any weight to proffered statistics. In Kline v. Springer, 602

F. Supp. 2d 234, 238–39 (D.D.C. 2009), the district court succinctly disregarded plaintiff’s

assertions about the underrepresentation of white female underrepresentation. The Court noted

that even if the plaintiff’s “numbers were properly supported by record evidence they would not

be enough. Without additional context, such as correctly defined pools, no reasonable juror

could infer a background of reverse discrimination…from the bare numbers.” Id. at 239. In

Horvath v. Thompson, 329 F. Supp. 2d 1 (D.D.C. 2004), a pro se plaintiff in a reverse gender

45
discrimination suit tried to introduce self-prepared statistics showing a manifest imbalance of

white men in the workplace. The Court found that plaintiff’s numbers regarding the

underrepresentation of males were “simply irrelevant,” “absent a showing of their

significance[.]” Id. at 11. In that case, the plaintiff failed to introduce sufficient evidence about

“the pool of available and qualified applicants,” and “any measure of ‘the probability that the

outcome of a statistical analysis would have occurred by chance.’” Id. (quoting Segar v. Smith,

738 F.2d 1249, 1282 (D.C. Cir. 1984)). In Thomas v. Chao, 65 Fed. Appx. 321, 324 (D.C. Cir.

2003), the D.C. Circuit found that the “District Court was correct to exclude from evidence the

list of employers identified by race and sex, and witness’ observations about the race and sex of

employees, in the absence of an expert who could testify that the alleged underrepresentation

was statistically insignificant.”

b. Shea’s calculations cannot withstand the rigorous scrutiny
courts in this circuit apply to statistics in Title VII cases

The infirmity of Shea’s lay statistics is further emphasized by the rigorous, exacting

analysis courts in this circuit have applied to this kind of statistical evidence. See, e.g., Berger v.

Iron Workers Reinforced Rodmen Local 201, 843 F.2d 1395, 1411–23 (D.C. Cir. 1988), on

rehearing 852 F.2d 619; McReynolds, 349 F. Supp. 2d at 8–28.11 Looking at Shea’s analysis,

this Court has several fundamental, threshold questions. Why does Shea continue to use the

1980 numbers for the relevant comparator pool, see Pl.’s Mot. Summ. J. 3, 12–14, even though

the GAO report containing those numbers explicitly disclaimed their reliability, and more recent

numbers were available? See Ex. 3 to Def.’s Cross-Mot. 21 (Shea – 008695). Why is it

appropriate for Shea to combine while males and while females, and recalculate the

underrepresentation figures by race only? Isn’t Shea simply inflating the comparator group to

11
This presents another way to look at this issue: In comparison with the detailed, searching analysis used in Berger
and McReynolds, it is clear that Shea’s statistical analysis—expert or not—cannot pass muster.

46
diminish the rate of white male overrepresentation? How, and why, has Shea recalculated the

rates of underrepresentation? Has he done so pursuant to standard, generally accepted

procedures? Are his results statistically significant? What is the error rate? How does Shea

measure statistical significance and error rates?

The Court needs to answer these questions before it can determine the relevance,

reliability, and probative value of Shea’s calculations—and thus their admissibility. See Frazier,

851 F.2d at 1452 (“Statistical comparisons performed on data in discrimination cases are not

probative of anything without support from an underlying statistical theory.”). Shea does not

adequately answer these questions. “[T]he statistics must be made meaningful to the finder of

fact in order to permit the plaintiff[] to carry [his] burden of showing that [his] statistics are

significant.” Id. at 1453. Even if Shea did not necessarily need an expert to conduct his

analysis—as left open by Frazier, 851 F.2d at 1453—this Court finds that plaintiff’s proffered

statistics were not sufficiently presented to withstand the scrutiny this Court must apply in

determining their relevance and reliability, cf. id.

c. Shea’s analysis is not as simple and modest as he claims

Shea claims that his analysis simply relies on numbers provided in State’s own

documents. See Pl.’s Opp’n & Reply 9–10, 13, 25. A simple examination of plaintiff’s Exhibit

2 shows that he is not merely pointing to State’s analysis and why it cannot support State’s

position. Instead he combines different sets of State’s numbers—merging the figures for males

and females—and recalculating overrepresentation rates based on what Shea thinks should be the

relevant comparator. See Ex. 2 to Pl.’s Mot. Summ. J. (plaintiff-created charts at pages 11, 12,

13, 15, 16, 17). He, in essence, changes the comparator groups without a sufficient explanation

for the change, and without a background in the kinds of “pools” analysis frequently done by

47
statisticians in Title VII cases. See, e.g., Whitacre v. Davey, 890 F.2d 1168, 1172 (D.C. Cir.

1989) (requiring “evidence of the pool of available and qualified applicants” before proffered

statistics may be considered adequate); Palmer, 815 F. 2d at 91 (discussing “pools” analysis in

Title VII cases); Segar, 738 F.2d at 1278 (same); McReynolds, 349 F. Supp. 2d at 9 (same).

Shea claims that, in so recalculating the overrepresentation numbers, he is doing simple

math—that he does not need any advanced degrees or specialized knowledge to add, subtract,

multiply, and divide. See Pl.’s Opp’n & Reply 16–17, 25–31. Certainly, a big part of what most

statisticians do boils down to simple math. But statisticians are not experts because they are

particularly adept at math—the Court suspects that many use performance-enhancing calculators.

Statisticians are experts because they know which numbers to use, and what functions to apply to

each set of numbers. In this case, the relevant expertise is not simply applying elementary

school-level math to sets of numbers found within the defendant’s documents. It is knowing, out

of the different sets of numbers spread throughout State’s reports, which sets of numbers to

compare and how to compare them. It is being able to explain whether a disparity between

whites and minorities is statistically significant, and whether the results have accounted for

“noise” that may skew the numbers. See, e.g., Berger, 843 F.2d at 1411–23; Frazier, 851 F.2d at

1452; McReynolds, 349 F. Supp. 2d at 8–28.

d. Shea is not qualified to offer expert or lay opinion testimony

Shea’s numbers are irrelevant without some explanation of their significance. Shea

might need an expert to opine on the statistical significance of the recalculated

underrepresentation figures. See Chao, 65 Fed. Appx. at 324. Without even considering Shea’s

qualifications, Shea could not provide expert testimony because he did not disclose his

testimony—per Federal Rule of Civil Procedure 26—by the deadlines imposed by the Court.

48
See Revised Scheduling Order 2, July 6, 2010, ECF No. 84 (setting expert deadline as September

30, 2010). Shea had ample opportunity to designate an expert, and was aware of the relevant

deadlines when he asked for—and received—extensions of the expert disclosure and discovery

deadlines. See, e.g., Minute Entry, Sept. 22, 2009; Minute Entry, Dec. 18, 2009; Pl.’s Mot. for

Discovery Extension, June 28, 2010, ECF No. 81. Shea’s unexcused and inexcusable failure to

timely designate an expert per the Court’s deadlines disqualifies him as an “expert,” and makes

his calculations and conclusions inadmissible to the extent they require expert testimony.

Shea cannot present “lay” opinion testimony as to the statistical significance of his

findings. Such testimony typically involves disclosed experts and is thus not amenable to lay

expert analysis. See Fed. R. Evid. 701(c) (forbidding lay opinion testimony “based on scientific,

technical, or other specialized knowledge within the scope of Rule 702”). Lay opinion testimony

“‘is limited to those opinions or inferences which are (a) rationally based on the perception of the

witness and (b) helpful to a clear understanding of the witness’ testimony or the determination of

a fact in issue.’” United States v. Williams, 212 F.3d 1305, 1390 n.6 (D.C. Cir. 2000) (quoting

pre-2011 amendment wording of Fed. R. Evid. 701 12 ). Shea’s opinions on the rates of

overrepresentation are not based on his own perceptions and feelings, or his personal knowledge

and experience. He has not attained “specialized knowledge…through experience rather than

scientific or technical training,” and is not testifying “based solely on personal experience with

the case at issue.” Armenian Assembly of Am. v. Cafesijan, 746 F. Supp. 2d 55, 65 (D.D.C.

2010). Therefore, his testimony therefore would not be admissible as “lay opinion” or “lay

expert” testimony under Rule 701. Cf. Barnes v. District of Columbia, __ F. Supp. 2d __, 2013

WL 541148, *6–*9 (D.D.C. Feb. 14, 2013) (discussing admissibility of lay opinion testimony).

12
The 2011 changes made to Rule 701 were “intended to be stylistic only” and were not intended “to change any
result in any ruling on evidence admissibility.” Fed. R. Evid. 701 advisory committee’s note.

49
 e. Even if no expert is needed, Shea has failed to adequately explain
his methods and the statistical significance of his results

Even if this kind analysis would not require an expert, per se, Shea has failed to properly

defend his analysis. “Statistical comparisons performed on data in discrimination cases are not

probative of anything without support from an underlying statistical theory.” Frazier, 851 F.2d

at 1452. Simply presenting numbers and comparisons to the Court is not sufficient. See

Saunders v. White, 191 F. Supp. 2d 96, 133 (D.D.C. 2002); Hatcher–Capers v. Haley, 786 F.

Supp. 1054, 1063–64 (D.D.C. 1992). The party offering the statistics must articulate how the

data should be interpreted and why it supports the party’s position. Saunders, 191 F. Supp. 2d at

133. The party must “demonstrate that the data []he offers is statistically significant,” Haley, 786

F. Supp. at 1063, and explain how the numbers reflect discrimination (or a lack thereof) rather

than, for example, “incomprehensive statistical treatment, varying levels of qualifications among

applicants, errors in definition or groups, inappropriate sampling methods, errors in

measurement, or even clerical and computational errors,” Frazier, 851 F.2d at 1452.

As in Frazier, id. at 1453, Shea’s statistics are not “sufficiently presented;” Shea cannot

explain his methods and assumptions such that his statistics are “meaningful to the trier of fact in

order to permit” him to carry his burden of “showing that [his] statistics are significant.” 13 He

inflates the comparator pool without an adequate justification for using this larger pool. He

provides no explanation of whether his recalculated rates of overrepresentation are statistically

significant, per any generally accepted measure. He does not even attempt a standard deviation

or “Z statistic” calculation. He does not even reference—let alone explain how he relied on—

“widely known methods previously reported in other discrimination cases, regulations, and

13
From the D.C. Circuit’s description, the non-expert statistics Frazier found to be insufficiently presented appear to
be much more detailed than the analysis offered by Shea. 851 F.2d at 1450–54.

50
commentaries.” Id. at 1450. He gives the Court none of the information it would need to make a

threshold determination of the relevance, reliability, and admissibility of his amateur statistics.

Courts often give pro se litigants more slack than represented parties—for example,

Courts may be more generous in construing pro se complaints when considering a motion to

dismiss. See generally Pettaway v. United States, 390 A.2d 981, 984 (D.C. 1978) (“We have a

duty to be indulgent of pro se pleadings.”). This generosity does not extend, however, to

allowing Shea to provide his own opinions where expert testimony is needed, or subjecting

Shea’s statistical methods to far less scrutiny than any other litigant would face.

f. State is not required to offer expert testimony to meet its burden

Shea argues that it is unfair to ask him to use experts to show that a manifest imbalance

did not justify the MLAAP, but not require State to use experts to show that there was such a

manifest imbalance. Pl.’s Opp’n & Reply 7–8, 31–35. Requiring State—as a condition of

meeting its burden of production—to retain outside experts to verify that State designed the

MLAAP to correct for a manifest imbalance would severely undermine the allocation of burdens

established in McDonnell Douglas and Johnson. Johnson, read liberally, might suggest that the

mere production of an affirmative action plan could meet the employer’s burden under

McDonnell Douglas. See 480 U.S. at 627 (“Once a plaintiff establishes a prima facie case that

race or sex has been taken into account in an employer’s employment decision, the burden shifts

to the employer to articulate a nondiscriminatory rationale for its decision. The existence of an

affirmative action plan provides such a rationale. If such a plan is articulated as the basis for the

employer’s decision, the burden shifts to the plaintiff to prove that the employer's justification is

pretextual and the plan is invalid.”). State has done more than simply point to its affirmative

action plan—it has provided evidence indicating its plan is lawful, justified by a need to remedy

51
a manifest imbalance, and properly tailored to those ends. However, by submitting this

evidence, State does not admit that it “carr[ies] the burden of proving the validity of the plan.

The burden of proving its invalidity remains on the plaintiff.” Id. at 627–28.

The Court admits that the law is not precise on exactly how much evidence an employer

must offer to defend its affirmative action plan. Cf. 2 LINDEMANN, GROSSMAN & WEIRICH,

EMPLOYMENT DISCRIMINATION LAW 2506–07 (“On the fact-specific issue as to what evidence is

needed to prove discrimination sufficient to undertake affirmative action, however, the lower

courts have not taken a consistent approach.”). Nevertheless, wherever the exact location of the

“line” is, the Court is confident (as discussed supra in Part III.A.) that State’s proffered evidence

goes far beyond that line. Under current precedent—Johnson and its progeny—an employer is

not necessarily required to provide expert testimony to meet its burden of production.

The reports from the State Department, congressional subcommittees, and the GAO—

created during the normal course of business—could be sufficient to establish the required

“manifest imbalance” and “predicate of discrimination.” See supra Part.III.B. (detailing

evidence introduced by State). To authenticate and discuss the content of these reports, the

defendant would not necessarily need expert witnesses, or treat its party witnesses as such. See

Barnes, __ F. Supp. 2d __, 2013 WL 541148 at *7 (defendant’s contemporaneously-created

reports on the rates of prisoner overdetentions “are not expert reports,” but “business records—

created not in anticipation of litigation, but in the normal course of business—that do not require

a Rule 26(a)(2) designated expert to authenticate them”); cf. National R.R. Passenger Corp. v.

Railway Express, LLC, 268 F.R.D. 211, 214–15 (D. Md. 2010) (party employees may be

required to provide expert disclosures if employee witness renders opinions on matters outside

the normal scope of their employment or the employer retains or specially employs them to

52
testify). As properly authenticated business records, these reports and documents could justify

the MLAAP without the need for experts.

4. Shea’s Evidence that the MLAAP Forecloses Advancement
Opportunities for Non-Minorities

Shea argues that the MLAAP, in effect, forecloses advancement opportunities for non-

minorities. Shea claims he “was not aware of any mid-level hiring program that non-minorities

were eligible for when [he] applied for a job with the Foreign Service in 1990[.]” Pl.’s Opp’n to

Def.’s Second Mot. Reconsideration 41, Apr. 12, 2011, ECF No. 95. While Shea’s subjective

knowledge of the MLCCP may be relevant to mitigation of damages, it is not relevant in

considering the legality of the MLAAP, as it is undisputed that such a general mid-level hiring

program existed. Def.’s SMF ¶¶ 9–12, 22; Pl.’s SMF Resp. 10–13 (admitting Def.’s SMF ¶¶ 9–

12, 22). Nevertheless, Shea claims that the MLCCP would have done him no good, as State was

not issuing certificates of need for his particular area of expertise. Shea says that no certificates

of need were issued between January 1990 and the date he began with State, May 31, 1992. Pl.’s

Opp’n & Reply 35. Shea continues, “The first mid-level white hiring comes on October 19,

1992 – after I had started my employment with State.” Id. In support of this position, Shea cites

defense exhibit 16 (ECF No. 128-18), a chart entitled “Mid-Level Hiring 1990 to 1994.” This

chart shows that State first hired Caucasian as a mid-level on October 19, 1992. 14

14
This, of course, does not mean there were no white mid-level hires prior to October 1992. Construing this chart,
the Court draws all reasonable inferences in favor of Shea, and does feel the need to address whether there were
non-minority mid-level hires prior to this date.
Elsewhere State argues, “Due to the passage of time cause by Plaintiff’s nine-year delay in bringing this action and
the resulting loss of records, Defendant is unable to tell if any certificates of need were issued by the State
Department in the fiscal years 1990 and 1991.” Def.’s Cross-Mot. 26 n.16. Since this is merely the ipse dixit of
counsel, unsupported by a sworn affidavit or admissible evidence, the Court ignores this argument entirely and
focuses on what can actually be shown by the evidence. See A.N.S.W.E.R. Coal. v. District of Columbia, __ F.
Supp. 2d. __, 2012 WL 5974030, *14 (D.D.C. Nov. 29, 2012) (unsworn statements of counsel, unsupported by the
evidence, is evidence of nothing at the summary judgment stage) (citing Schoch v. First Fidelity Bancorporation,
912 F.2d 654, 657 (3d Cir. 1990); Int’l Distrb. Corp. v. Am. Dist. Tel. Co., 569 F.2d 136, 139 (D.C. Cir. 1977)).

53
 This chart does not show that no certificates of need were being issued—or that it was

impossible to receive such a certificate—when Shea applied. Certificates of need, as

prerequisites to applying for a mid-level position, must be issued some time before an applicant

is hired. Exs. 1A & 1B to Def.’s Cross-Mot. (1982 and 1987 Mid-Level Foreign Service Career

Candidate Programs). Consider the case of Patricia Haslach, whom Shea cites as the non-

minority candidate hired on October 19, 1992. Pl.’s Opp’n & Reply 35. According to a letter

from Haslach to State, Haslach inquired about the MLCCP as early as December 12, 1990. Ex.

17 to Def.’s Cross-Mot. (Shea – 07538). On January 10, 1991, Haslach applied for a mid-level

position, id.; apparently it took approximately 22 months for her to be hired at State, see Def.’s

SMF ¶¶ 28, 30–32; Pl.’s SMF Resp. 14–15 (admitting Def.’s SMF ¶¶ 28, 30–32). This shows

that simply because no white mid-levels were hired until a few months after Shea entered State,

this does not mean no certificates of need were issued until after Shea entered State.

Shea next cites a November 30, 1992, memorandum sent to the State Department

Director General titled, “Minority Recruitment and Hiring.” Ex. 1 to Pl.’s Opp’n & Reply, ECF

No. 123-1. The memo states that “at present,” State was then “able to certify mid-level need for

admin, econ, and science officers at the 02 and 03 levels, and consular officers at the 02 levels.”

Ex. 1 to Pl.’s Opp’n & Reply (Shea – 03765). To Shea this means State was not issuing

certificates for consular officers at grade FS-3—the position he would have been interested in

and qualified for—and therefore he was effectively shut out of the MLCCP. See Pl.’s Opp’n &

Reply 37. However, this conclusion does not follow from the memorandum. First, the memo

only concerns certificates of need as of November 1992, and says absolutely nothing about the

availability of consular certificates prior to that date. In fact, prior to November 1992, State did

approve of certificates of need for FS-03 consular officers. See Ex. 10 to Def.’s Cross-Mot. (on

54
May 14, 1992, approving of FS-03 consular certificates of need) (Shea – 07372). This May 1992

State document undermines Shea’s interpretation of the November 1992 memorandum—simply

because FS-03 consular certificates were not available in November 1992 does not mean they

were not available earlier, while Shea was applying for a position.

Overall, Shea does not present sufficient evidence to infer that was completely shut out of

the MLCCP or did not have an opportunity to reach the mid-levels. By his own admission, Shea

never inquired about the MLCCP, requested a certificate of need, or applied to the program.

Def.’s SMF ¶ 22; Pl.’s SMF Resp. 13 (admitting Def.’s SMF ¶ 22); Pl.’s Opp’n to Def.’s Second

Mot. Reconsideration 41. Applying for, and being rejected from, mid-level placement would be

the clearest evidence that he was not eligible for mid-level placement. At this point, Shea’s

evidence is speculative at best and not sufficient to overcome State’s evidentiary proffer.

IV. CONCLUSION

The role of a district court is to ascertain and apply the law as it is, not as the Court thinks

it should be. This Court finds that the Supreme Court’s majority opinion in Johnson v.

Transportation Agency, Santa Clara County, 480 U.S. 616 (1987)—as it has been interpreted

and applied in this Circuit—provides the controlling standard for analyzing Title VII challenges

of affirmative action plans. Under Johnson, after the plaintiff has made a prima facie claim of

racial discrimination, the defendant must only meet a burden of production—not persuasion—

that it acted pursuant to a legal affirmative action plan. The ultimate persuasive burden is, at all

times, on the plaintiff to prove that the affirmative action plan was unlawful. Under this

standard, Shea has failed to provide sufficient, admissible evidence that State’s affirmative action

plan was not justified by a manifest imbalance in the workforce or properly tailored to achieve

remedial goals. In particular, Shea’s amateur statistics regarding the rates of minority

55
representation in the Foreign Service would be inadmissible, as Shea provides no evidence as to

the statistical significance of his results. Since Shea cannot prove an essential element of his

claim, and has had a full and fair opportunity obtain relevant discovery, the State Department is

entitled to summary judgment on Shea’s remaining claim.

For Shea, this may be a less than satisfying end to this long-running case. This Court is,

in some ways, sympathetic. The Court wonders why it is harder to challenge an affirmative

action plan under Title VII than under the Constitution. When challenging affirmative action

under the Equal Protection Clause, strict scrutiny applies and the defendant has the ultimate

burden of explaining why it was necessary to treat people differently based on their race. But

when the challenge is under Title VII, we make the plaintiff ultimately prove that race-based

discrimination is illegal. 15 The Court questions the wisdom of looking to legislative history to

create a textual ambiguity, rather than resolve one—carving out exceptions from a clear mandate

not to discriminate because we imagine what legislators would have done, rather than focus on
16
what they actually did. Our affirmative action jurisprudence—both statutory and

constitutional—operates under the assumption that unambiguous mandates not to discriminate

based on race somehow apply with less force to members of the “majority.”

15
See Johnson, 480 U.S. at 626–27 (providing Title VII McDonnell Douglas burden shifting standard for analyzing
affirmative action plans); Wygant, 476 U.S. at 273 (providing constitutional strict scrutiny standard for analyzing
affirmative action plans; Johnson, 480 U.S. at 480 U.S. at 627 n.6 (majority opinion clarifying that statutory
procedure for analyzing affirmative action plans is indeed different from the constitutional test); Stewart, 948 F.
Supp. at 1093 (“The standard for determining whether affirmative relief is justified under Title VII is less stringent
than under the Constitution.”).
16
Our affirmative action jurisprudence has its origins in the backwards idea that the “spirit” of a law somehow
trumps its plain and unambiguous letter. In Weber and Johnson, the Supreme Court somehow found—in plain
language barring racial discrimination—an out to give racial preferences to minority groups. Certainly, the Court
thought, it would be absurd for a law barring racial discrimination not to allow some. See generally Johnson, 480
U.S. at 657–77 (Scalia, J., dissenting). The Court is reminded of Chief Justice Roberts’ incisive statement: “The
way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Parents Involved
in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 748 (2007) (Roberts, C.J., concurring) (emphasis added).

56
 While the tide may be turning against this approach to affirmative action, it has yet to

directly reach Johnson’s Title VII standard. 17 Much of the doubt about our present affirmative

action jurisprudence has been consigned to dissents, non-controlling concurrences, dictum, and

scholarly critiques. 18 Absent a clear statement from the Supreme Court or the Court of Appeals

that Johnson no longer governs, this Court must apply its principles. Therefore, Shea’s Title VII

challenge to State’s affirmative action plan must fail, and State is entitled to summary judgment.

This constitutes final judgment in this action, and the Court dismiss this case with prejudice.

A separate Order consistent with this Memorandum Opinion shall issue this date.

Signed by Royce C. Lamberth, Chief Judge, on May 10, 2013.

17
Many—including Judge Robertson in this case, Mem. Order 8 n.3, Aug. 11, 2009, ECF No. 69—have questioned
the continuing viability of Johnson and other affirmative action precedent in light of Ricci v. DeStefano, 557 U.S.
557 (2009). See, e.g., Marcia L. McCormick, Disparate Impact and Equal Protection After Ricci v. DeStefano, 27
WIS. J.L. GENDER & SOC’Y 100 (2012); Roberto L. Corrada, Ricci’s Dicta: Signaling a New Standard for
Affirmative Action Under Title VII?, 46 WAKE FOREST L. REV. 241 (2011); Sachin S. Pandya, Detecting the Stealth
Erosion of Precedent: Affirmative Action After Ricci, 31 BERKELEY J. EMP. & LAB. L. 285 (2010). However, as
these articles indicate, nothing in Ricci directly overturns or modifies Johnson, at least as it applies to this case. The
arguments are that Ricci has dicta signaling that the Supreme Court will change course on affirmative action in the
future. This Court cannot depart from long-standing, clear precedent based on such speculation.
Many also thought—including this Judge in Stewart, 948 F. Supp. at 1094–95—there would be a significant change
to affirmative action jurisprudence after City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) and Adarand
Constructors, Inc. v. Pena, 515 U.S. 200 (1995). See, e.g., Margaret A. Sewell, Adarand Constructors, Inc. v. Pena:
The Armageddon of Affirmative Action, 46 DEPAUL L. REV. 611 (1997); Lara Hudgins, Rethinking Affirmative
Action in the 1990s: Tailoring the Cure to Remedy the Disease, 47 BAYLOR L. REV. 815 (1995); John Payton, The
Meaning and Significance of the Croson Case, 1 GEO. MASON U. CIV. RTS. L.J. 59 (1990). This has yet to pass, as
in the years since Croson and Adarand, the Supreme Court has yet to overrule Johnson and Weber. Cf. Neal
Devins, Adarand Constructors, Inc. v. Pena and the Continuing Irrelevance of Supreme Court Affirmative Action
Decisions, 37 WM. & MARY L. REV. 673 (1996) (arguing neither Croson or Adarand had effect many expected).
Others still thought that Parents Involved, 551 U.S. 701 (2007), sounded the death kneel for affirmative action. See
Katherine M. Planer, The Death of Diversity? Affirmative Action in the Workplace After Parents Involved, 39 SETON
HALL L. REV. 1333 (2009). While not much may be clear about affirmative action, the reports of its demise have
been greatly exaggerated. Cf. Frank Marshall White, Mark Twain Amused / Humorist Says He Even Heard on Good
Authority That He Was Dead, N.Y. JOURNAL, June 2, 1897, at 1, reprinted in MARK TWAIN: THE COMPLETE
INTERVIEWS 317–18 (Gary Scharnhorst ed., 2006).
18
See, e.g., Ricci, 557 U.S. at 594–97 (Scalia, J., concurring); Johnson, 480 U.S. at 657–77 (Scalia, J., dissenting);
Hill v. Ross, 183 F.3d 586, 588 (7th Cir. 1999); Stewart, 948 F. Supp. at 1094–95 (Lamberth, J.); Finch v. City of
Indianapolis, 886 F. Supp. 2d 945, 961 & n.15 (S.D. Ind. 2012); THOMAS SOWELL, BLACK EDUCATION: MYTHS AND
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B.A. 20 (June 2006); Kathryn A. Sampson, Negotiating a Slippery Slope: Voluntary Affirmative Action After
Johnson, 14 J. CORP. L. 201 (1988); Charles Murray, Affirmative Racism, THE NEW REPUBLIC, Dec. 31, 1984, at 18.

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