William Shea v. John Kerry

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 20, 2015 Decided August 7, 2015

No. 13-5153

WILLIAM E. SHEA,
APPELLANT

v.

JOHN F. KERRY, SECRETARY OF STATE, IN HIS OFFICIAL
CAPACITY,
APPELLEE

Appeal from the United States District Court
for the District of Columbia
(No. 1:02-cv-00577)

Joshua P. Thompson argued the cause for appellant.
With him on the briefs were Meriem L. Hubbard and Ralph
W. Kasarda.

Darrell C. Valdez, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Ronald C.
Machen Jr., U.S. Attorney, and R. Craig Lawrence, Assistant
U.S. Attorney.

Before: ROGERS and SRINIVASAN, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
 2
Opinion for the Court filed by Circuit Judge SRINIVASAN.

Concurring opinion filed by Senior Circuit Judge
WILLIAMS.

SRINIVASAN, Circuit Judge: From 1990 to 1992, the
State Department had in place a hiring plan aimed to increase
racial diversity among the officer corps in the United States
Foreign Service. William Shea, a white Foreign Service
Officer, brings suit alleging that the hiring plan violated Title
VII. Although Shea challenges a plan that ceased to exist
over twenty years ago, he joined the Foreign Service during
the two years the plan was in effect. He alleges that, because
of the plan, he entered the Foreign Service at a lower level
than would have been the case had he been a minority
applicant.

The district court viewed Shea’s claim to be controlled by
the Supreme Court’s decisions in Johnson v. Transportation
Agency, Santa Clara County, California, 480 U.S. 616
(1987), and United Steelworkers of America, AFL-CIO-CLC
v. Weber, 443 U.S. 193 (1979). Those decisions upheld
employers’ affirmative action plans against Title VII
challenges. The district court, following Johnson and Weber,
granted summary judgment in favor of the State Department.
We agree with the district court and affirm its judgment.

I.

A.

The United States Foreign Service, a branch of the
United States Department of State, works through its Foreign
Service Officers to “advocate American foreign policy,
protect American citizens, and promote American interests
 3
throughout the world.” Taylor v. Rice, 451 F.3d 898, 900
(D.C. Cir. 2006). Foreign Service Officers “perform
traditional diplomatic responsibilities, including trade
promotion, political and economic reporting, and consular
services and protection.” Id.

In 1990, Shea applied for an entry-level Foreign Service
Officer position. At the time, the Foreign Service career
ladder consisted of six pay grades, ranging from FS-06 (entry
level) to FS-01 (upper level), with the Senior Foreign Service
(SFS) a step above FS-01. The Department generally filled
vacancies at more senior ranks through internal promotions
rather than external hires. Applicants from outside the agency
thus ordinarily entered the Officer corps only at the junior
levels (FS-04, -05 and -06 levels). In May 1992, Shea joined
the Foreign Service at the FS-05 level.

B.

In the years preceding Shea’s application to the Foreign
Service, the State Department faced significant scrutiny about
the lack of diversity of the Foreign Service Officer corps. In
1985, Congress perceived an underrepresentation of
minorities among Foreign Service Officers. Congress
therefore enacted legislation directing the Department to
“develop . . . a plan designed to increase significantly the
number of members of minority groups . . . in the Foreign
Service,” with a “particular emphasis on achieving significant
increases in the numbers of minority group members . . . in
the mid-levels of the Foreign Service,” the FS-02 and -03
levels. Foreign Relations Authorization Act, Fiscal Years
1986 and 1987, Pub. L. No. 99-93, § 152(a), (b), 99 Stat. 405,
428 (1985).
 4
Two years later, Congress remained unsatisfied.
Concluding that the State Department “ha[d] not been
successful in [its] efforts . . . to recruit and retain members of
minority groups,” Congress instructed the Department to
“substantially increase [its] efforts” to ensure that the
“Foreign Service becomes truly representative of the
American people throughout all levels of the Foreign
Service.” Foreign Relations Authorization Act, Fiscal Years
1988 and 1989, Pub. L. No. 100-204, § 183(a), (a)(1), (b)(1),
101 Stat. 1331, 1364 (1987). Congress specifically directed
the Department to “ensure that those [efforts] effectively
address the need to promote increased numbers of
qualified . . . members of minority groups into the senior
levels of the Foreign Service.” Id. § 183(b)(2).

Congress did not stand alone in raising concerns about
the diversity of the Foreign Service Officer corps. In 1989,
the General Accounting Office (now known as the
Governmental Accountability Office) released a report
entitled “State Department: Minorities and Women Are
Underrepresented in the Foreign Service.” The 1989 GAO
Report evaluated the Department’s existing efforts, finding
that, while “[p]rogress ha[d] been mixed” in increasing
diversity,

[m]inorities . . . were still substantially
underrepresented when compared with civilian
labor force data that the EEOC ha[d] issued to
measure federal agencies. . . .

In mid-level ranks of the officer corps,
minority male representation ha[d] increased,
but minority and white women ha[d] made less
progress. In State’s Senior Foreign Service
 5
positions, underrepresentation of minorities
and white women [wa]s still pervasive.

U.S. Gen. Accounting Office, State Department: Minorities
and Women Are Underrepresented in the Foreign Service 15
(1989) (1989 GAO Report).

The 1989 GAO Report compared the Department’s 1987
minority workforce with the racial breakdown of the
American population possessing the skills required for
Foreign Service employment. That comparison indicated that
the Department generally fell short of “full representation”—
the level at which a minority group would make up the same
proportion of the workforce as its proportion of the American
population possessing the relevant skills—at mid- and senior-
level Foreign Service Officer positions, as follows: for
women of each defined minority group at the SFS, FS-01,
-02, and -03 levels; black, Native American and native
Alaskan men at the SFS level; Hispanic men at the SFS and
FS-01 levels; and Asian and Pacific Islander men at the SFS,
FS-01, -02, and -03 levels.

The Civil Service Subcommittee of the House Committee
on Post Office and Civil Service convened hearings focusing
on the 1989 GAO Report’s findings and on the results of two
other studies—the Bremer Study Group Report
(commissioned by the Secretary of State on his own initiative)
and the Thomas Commission Report (mandated by Congress
as part of the 1988-1989 Foreign Relations Authorization
Act). Representative Gerry Sikorski, the Subcommittee’s
Chairman, interpreted those two studies to “disclose[] major
problems of discrimination against . . . minorities in the
Foreign Service.” Underrepresentation of Women and
Minorities in the Foreign Service: Hearing Before the
Subcomm. on the Civil Serv. of the H. Comm. on Post Office
 6
& Civil Serv., 101st Cong. 3 (1989) (1989 Subcomm.
Hearing). Those studies, he concluded, revealed that
“management of the U.S. Foreign Service [was] seriously
flawed.” The Department of State in the 21st Century: Joint
Hearing Before the Subcomm. on Int’l Ops. of the H. Comm.
on Foreign Affairs & the Subcomm. on the Civil Serv. of the
H. Comm. on Post Office & Civil Serv., 101st Cong. 6 (1989)
(1989 Joint Hearing).

As of 1989, minorities remained underrepresented in
Foreign Service Officer roles. Id. And that was after years of
concerns voiced by Congress and repeated warnings from the
Equal Employment Opportunity Commission “that the State
Department ha[d] not had an effective . . . plan or program for
overcoming the underrepresentation [of minorities] in the
Foreign Service.” U.S. Gen. Accounting Office, Testimony:
Underrepresentation of Minorities and Women in the Foreign
Service, Statement of Joseph Kelley, Director of Security and
International Relations Issues, National Security and
International Affairs Division, Before the Subcommittee on
Civil Service, Committee on Post Office and Civil Service,
United States House of Representatives 1 (1989). The
Department undertook various measures in response,
including creating a special hiring path for minorities into the
Foreign Service’s mid- and upper-level ranks—the
affirmative action plan in issue here.

C.

At the time of Shea’s entry into the Foreign Service, the
State Department operated two distinct programs that enabled
applicants to bypass the Department’s usual preference for
internal promotions and allowed the direct hiring of outside
applicants into mid- and upper-level (FS-01, -02 and -03)
positions. One program, the Career Candidate Program
 7
(CCP), was race-neutral. The other program, the 1990-92
Affirmative Action Plan (1990-92 Plan), targeted minority
applicants.

Under the CCP, the Department accepted certain
applications from outside candidates for FS-01, -02, and -03
positions. But the Department, in accordance with its general
preference for filling vacancies through internal promotions,
could hire an otherwise viable outside applicant through the
CCP only if the Department issued a “certificate of need”
attesting that no internal candidates could fill that vacancy.
The Department would then consider the outside applicant
consistent with its typical hiring procedures. In the absence
of a certificate of need, no outside candidate could receive an
offer of employment through the CCP.

Under the race-conscious 1990-92 Plan, the Department
provided a special path for minorities seeking direct
placement as outside hires into the FS-01, -02, and -03 ranks.
The 1990-92 Plan gave one—and only one—advantage to
minority applicants: an automatic waiver of the CCP’s
certificate-of-need requirement for “American Indians, Alaska
Native[s], Asians and Pacific Islanders, Blacks, and
Hispanics.” U.S. Dep’t of State, Foreign Service Mid-Level
Hiring Program Highlights 1 (1989). Apart from the
certificate-of-need waiver at the threshold stage, the 1990-92
Plan granted no benefits to minorities in the course of the
hiring process. That process was rigorous: The “vast
majority” of minority candidates applying through the 1990-
92 Plan “were eliminated from competition at the preliminary
review stage.” Id.
 8
D.

In 2001, Shea filed an administrative grievance with the
State Department. Among other claims, he argued that he
started at a lower pay grade by virtue of the 1990-92 Plan’s
preferential treatment of minority applicants, infringing his
rights under Title VII as well as the equal protection
component of the Due Process Clause of the Fifth
Amendment. The Foreign Service Grievance Board
dismissed his complaint for lack of jurisdiction, and Shea then
filed suit in the United States District Court for the District of
Columbia.

Shea’s case initially traveled back and forth between the
district court and this court on the question of whether his
Title VII and equal protection claims had been timely filed.
(As to the remaining claims, Shea did not appeal their
dismissal.) See Shea v. Kerry, 961 F. Supp. 2d 17, 22-25
(D.D.C. 2013). Ultimately, after Congress enacted the Lilly
Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, 123 Stat.
5, the district court found that Shea’s Title VII claims were
timely under the Ledbetter Act but that his equal protection
claims were untimely. See id. at 24, 29 & n.3.

Proceeding to the merits, the district court granted
summary judgment to the State Department. Id. at 55. The
court first determined that the Supreme Court’s Title VII
affirmative action decisions in Weber, 443 U.S. 193, and
Johnson, 480 U.S. 616, controlled the analysis. Those
decisions, the district court explained, called for application of
the three-step burden-shifting framework articulated by the
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Shea, 961 F. Supp. 2d at 27-29.
 9
At the first step, the district court concluded that Shea
had established a prima facie case of discrimination in
violation of Title VII. Id. at 31-33. Turning to the second
step, the court found that the Department had proffered
evidence that, if accepted as true, permitted the conclusion
that the Department had acted pursuant to a lawful affirmative
action plan. Id. at 33-44. Finally, at the third step, the district
court considered whether Shea had shown that the affirmative
action plan was, in fact, unlawful. The court rejected Shea’s
proffer of lay statistical evidence to that end, and thus
concluded that he had failed to raise any genuine issue
concerning the validity of the Department’s affirmative action
plan. The court therefore granted summary judgment in favor
of the Department. Id. at 55.

II.

We review de novo the district court’s grant of summary
judgment on Shea’s Title VII claim. Holcomb v. Powell, 433
F.3d 889, 895 (D.C. Cir. 2006). Before addressing the merits
of that claim, we first assure ourselves of Shea’s standing to
bring it. Although the Department raises no challenge to his
standing, “it is well established that the court has an
independent obligation to assure that standing exists,
regardless of whether it is challenged by any of the parties.”
Summers v. Earth Island Inst., 555 U.S. 488, 499 (2009).

To demonstrate his standing, Shea must show, inter alia,
that he suffered an injury in fact that is both “concrete and
particularized” and “actual or imminent, not conjectural or
hypothetical.” Lujan v. Defenders of Wildlife, 504 U.S. 555,
560 (1992) (quotation marks omitted). In the context of an
employment discrimination claim, a plaintiff may claim an
injury in fact from the purported denial of the ability to
compete on an equal footing against other candidates for a
 10
job. See Ne. Fla. Chapter of the Associated Gen. Contractors
of Am. v. City of Jacksonville, Fla., 508 U.S. 656, 666 (1993);
Cerrato v. S.F. Cmty. Coll. Dist., 26 F.3d 968, 976 (9th Cir.
1994). Because the injury lies in the denial of an equal
opportunity to compete, not the denial of the job itself, we do
not inquire into the plaintiff’s qualifications (or lack thereof)
when assessing standing. See Regents of Univ. of Cal. v.
Bakke, 438 U.S. 265, 280-81 & n.14 (1978).

Shea alleges that the 1990-92 Plan denied him the
opportunity to compete on an equal basis by extending a
preference to minority candidates that was unavailable to him:
the ability to gain consideration for entry to a mid-level
position without any certificate of need. Shea could have
sought direct mid-level placement through the race-neutral
CCP program, however. He did not do so, instead applying
only for an entry-level FS-05 position. There is thus a
question whether Shea suffered an actual or imminent injury
as a result of the 1990-92 Plan, or whether his injury was
merely hypothetical.

The Supreme Court’s decision in Gratz v. Bollinger, 539
U.S. 244 (2003), found the existence of standing in parallel
circumstances. In Gratz, one of the plaintiffs, Patrick
Hamacher, sought to challenge the University of Michigan’s
consideration of race in its undergraduate transfer admissions.
At the time of the suit, Hamacher had yet to apply to transfer
to Michigan. Indeed, the Court’s opinion indicated that he
would not do so as long as Michigan’s race-conscious
admissions program remained in place: Hamacher instead
declared that he “intend[ed] to transfer to the University of
Michigan when [it] cease[d] the use of race as an admissions
preference.” Id. at 261 (emphasis added). The Supreme
Court sua sponte questioned Hamacher’s standing to bring his
challenge, ultimately concluding that he had shown an injury
 11
in fact. The Court reasoned that, because of Hamacher’s
stated intent to transfer should Michigan change its policy, he
had established standing. Id. at 261-62.

Gratz controls our inquiry. Like Hamacher, Shea alleges
that he possessed an intent to apply to the position in question,
i.e., a mid-level position. Pl.’s Decl. in Supp. of Pl.’s
Surreply at 3-4 (filed Dec. 14, 2012). If the mid-levels had
been open to him for equal consideration on a race-neutral
footing, he would have applied to the mid-levels instead of
the entry-level. Thus, like Hamacher, Shea stood “able and
ready to apply [to the mid-levels] should the [State
Department] cease to use race” as a factor in mid-level hiring.
Id. (quotation marks omitted). By choosing not to apply
because the Department was considering race during the time
of his application process, Shea did exactly what Hamacher
alleged he would do: refuse to apply through the race-
conscious program unless and until that program’s use of
race-conscious preferences ceased. As a result, Shea, like
Hamacher, has standing to challenge the Department’s
affirmative action plan notwithstanding his failure to apply for
a mid-level position through the CCP program.

III.

Title VII prohibits an employer from “discriminat[ing]
against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of”
inter alia, “such individual’s race.” 42 U.S.C. § 2000e-
2(a)(1). The statute protects both minorities and non-
minorities—the latter against “reverse discrimination.” See
Mastro v. Potomac Elec. Power Co., 447 F.3d 843, 851 (D.C.
Cir. 2006). Here, Shea alleges that the State Department’s
1990-92 Plan constituted impermissible reverse
discrimination in violation of Title VII.
 12

A.

At the outset, we consider the governing framework for
resolving Shea’s reverse-discrimination claim. For nearly
thirty years, we have examined Title VII challenges to
affirmative action programs under the standards set forth by
the Supreme Court in United Steelworkers of America, AFL-
CIO-CLC v. Weber, 443 U.S. 193 (1979), and Johnson v.
Transportation Agency, Santa Clara County, California, 480
U.S. 616 (1987). Shea argues that those standards have been
displaced by the Supreme Court’s decision in Ricci v.
DeStefano, 557 U.S. 557 (2009), such that Johnson and
Weber no longer guide the analysis of reverse-discrimination
claims under Title VII. We are unpersuaded.

1.

In Weber, the Supreme Court for the first time considered
a Title VII challenge to an employer’s affirmative action plan.
As of 1974, Kaiser Aluminum & Chemical Corp. had an
“almost exclusively white craftwork force[],” with black
employees making up only 1.83% of the company’s skilled
craftworkers at its Gramercy, Louisiana, plant, even though
the workforce in the area surrounding that plant was roughly
39% black. Weber, 443 U.S. at 198-99. As part of a
collective-bargaining agreement, Kaiser promised to
implement “an affirmative action plan designed to eliminate
[that] conspicuous racial imbalance[].” Id. at 198. The
company established job-training programs to teach both
black and white employees the necessary skills for promotion
to craftworker positions. Id. at 198-99. Selection of trainees
for the program would be made on the basis of seniority, but
“with the proviso that at least 50% of the new trainees were to
be black until the percentage of black skilled craftworkers in
 13
the Gramercy plant approximated the percentage of blacks in
the local labor force.” Id. at 199. A white unskilled
production worker from the plant sued, arguing that Title VII
prohibited all race-conscious employer actions. Id. at 199,
201.

The Supreme Court disagreed and upheld Kaiser’s
affirmative action plan. The Court declined to “define in
detail the line of demarcation between permissible and
impermissible affirmative action plans,” but concluded that
Kaiser’s plan fell “on the permissible side of the line.” Id. at
208. The trainee-selection plan, the Court approvingly noted,
aimed to “break down old patterns of racial segregation and
hierarchy” and “open employment opportunities for [black
workers] in occupations which have been traditionally closed
to them.” Id. (quotation marks omitted). The Court set out
the considerations that caused it to uphold the company’s plan
as follows:

[T]he plan does not unnecessarily trammel the
interests of the white employees. The plan
does not require the discharge of white
workers and their replacement with new black
hirees. Nor does the plan create an absolute
bar to the advancement of white employees;
half of those trained in the program will be
white. Moreover, the plan is a temporary
measure; it is not intended to maintain racial
balance, but simply to eliminate a manifest
racial imbalance. Preferential selection of craft
trainees at the Gramercy plant will end as soon
as the percentage of black skilled craftworkers
in the Gramercy plant approximates the
percentage of blacks in the local labor force.
 14
Id. at 208-09 (citation omitted). For those reasons, the plan
fell “within the area of discretion left by Title VII to the
private sector voluntarily to adopt affirmative action plans
designed to eliminate conspicuous racial imbalance in
traditionally segregated job categories.” Id. at 209.

2.

Nine years later, in Johnson, the Court again rejected a
Title VII challenge to an employer’s affirmative action
program. The case arose from the efforts of Santa Clara
County, California, to increase diversity in portions of its
workforce. The County sought to address a striking gender
imbalance in certain positions: Women constituted 36.4% of
the labor market in the area, but “none of [the County’s] 238
Skilled Craft Worker positions was held by a woman.”
Johnson, 480 U.S. at 621. The County implemented a
voluntary affirmative action plan with a stated “long-term
goal” to “attain a work force whose composition reflected the
proportion of minorities and women in the area labor force.”
Id. at 621-22. The County’s plan “authorized the
consideration of ethnicity or sex as a factor when evaluating
qualified candidates for jobs in which members of such
groups were poorly represented,” but it did not set aside a
specific number of hiring slots for women or racial minorities.
Id. at 622.

In upholding the County’s plan, the Court determined
that the analysis should follow the three-step burden-shifting
framework set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Under that framework:

Once a plaintiff establishes a prima facie case
that race or sex has been taken into account in
an employer’s employment decision [step one],
 15
the burden shifts to the employer to articulate a
nondiscriminatory rationale for its decision
[step two]. 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 [step three].

Johnson, 480 U.S. at 626. Application of that framework, the
Johnson Court emphasized, “does not mean . . . that reliance
on an affirmative action plan is to be treated as 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 627.

The Johnson Court explained that it would “be guided by
[its] decision in Weber.” Id. In Weber, the Court noted, it
had blessed an affirmative action plan that (i) sought to
“eliminate manifest racial imbalances in traditionally
segregated job categories”; and (ii) did not “unnecessarily
trammel the interests of white employees.” Id. at 628-30.
The Court found the requisite “manifest imbalance” to exist in
Johnson in light of the complete absence of women in the
positions in question. Id. at 636. The Court further
determined that the County’s plan did not “unnecessarily
trammel[] the rights of male employees” based on a number
of factors (without ascribing weight or rank to any single
one). Id. at 637-40. In particular, the plan imposed “goals,”
not “quotas.” Id. at 638. The plan worked such that “[n]o
persons [were] automatically excluded from consideration; all
[were] able to have their qualifications weighed against those
of other applicants,” with gender considered only as a “plus.”
Id. The plan did not abrogate any “absolute entitlement” of
 16
male employees, as it operated only in the context of
promotions, the denial of which would “unsettle[] no
legitimate, firmly rooted expectation[s].” Id. And the plan
was temporary, in that it “was intended to attain a balanced
work force, not to maintain one.” Id. at 639.

For nearly three decades, Johnson has guided courts—
including ours—in the analysis of Title VII claims alleging
unlawful reverse discrimination. See, e.g., Hammon v. Barry
(Hammon II), 826 F.2d 73 (D.C. Cir. 1987); see also Petitti v.
New England Tel. & Tel. Co., 909 F.2d 28 (1st Cir. 1990);
Taxman v. Bd. of Educ., 91 F.3d 1547 (3d Cir. 1996) (en
banc); Smith v. Va. Commonwealth Univ., 84 F.3d 672 (4th
Cir. 1996) (en banc); Edwards v. City of Houston, 37 F.3d
1097 (5th Cir. 1994); Janowiak v. Corporate City of S. Bend,
836 F.2d 1034 (7th Cir. 1984); Tharp v. Iowa Dep’t of Corr.,
68 F.3d 223 (8th Cir. 1995); Doe v. Kamehameha
Sch./Bernice Pauahi Bishop Estate, 470 F.3d 827 (9th Cir.
2006) (en banc); Cunico v. Pueblo Sch. Dist. No. 60, 917 F.2d
431 (10th Cir. 1990); In re Birmingham Reverse
Discrimination Emp’t Litig., 20 F.3d 1525 (11th Cir. 1994).

3.

In 2009, the Supreme Court decided Ricci v. DeStefano,
557 U.S. 557. In Ricci, the Court considered the City of New
Haven’s actions in the aftermath of the City’s administration
of a firefighter promotional examination. The results of the
exam showed a statistical racial disparity: White candidates
had outperformed minority candidates. Id. at 562. Some
firefighters threatened to bring a discrimination lawsuit if the
City relied on the test in making promotions. Id. The City
responded by throwing out the test results. A group of white
and Hispanic firefighters sued the City under Title VII,
 17
claiming that, by discarding the test, the City had engaged in
unlawful reverse discrimination against them. Id. at 562-63.

The Supreme Court ruled in the firefighters’ favor. The
Court understood that the City’s “objective” in discarding the
tests was to “avoid[] disparate-impact liability” under Title
VII. Id. at 579. But the Court concluded that, by rejecting the
results of the promotional test “because of the statistical
disparity based on race,” the City had engaged in “express,
race-based decisionmaking.” Id. The Court held that “race-
based action like the City’s in this case is impermissible under
Title VII unless the employer can demonstrate a strong basis
in evidence that, had it not taken the action, it would have
been liable under” Title VII’s disparate-impact prohibition.
Id. at 563; see id. at 585. That is, the Court held that the City
could not invalidate the test results based on the race of the
highest scorers for the asserted purpose of avoiding a
disparate-impact lawsuit, unless the City had a strong basis in
evidence to believe that it would be found liable in such a
suit. The City could not meet that burden. Id. at 592.

Shea argues that Ricci upends Johnson and Weber such
that those earlier decisions no longer guide our analysis here.
Under Johnson and Weber, we would first assess the
sufficiency of Shea’s prima facie case, then turn to the State
Department’s proffer of a valid affirmative action plan, and
finally examine Shea’s efforts to demonstrate the invalidity of
that plan. See Johnson, 480 U.S. at 626. Throughout, Shea
would retain the burden of proving the invalidity of the
Department’s 1990-92 Plan. Id. at 627. Ricci changed all of
this, Shea submits: After Ricci, Shea argues, we must jettison
Johnson and Weber’s framework and instead ask whether the
State Department can show “a strong basis in evidence that,
had it not [instituted an affirmative action plan], it would have
been liable” for discrimination under Title VII. Ricci, 557
 18
U.S. at 563 (emphasis added). And, if the Department proves
unable to put forth the requisite “strong basis in evidence” in
support of that showing, Shea contends, the Department
would be liable under Title VII for impermissible reverse
discrimination.

The Department initially argues that Shea forfeited any
argument based on Ricci by failing to present that argument to
the district court. We disagree. Although forfeiture
principles apply to new arguments raised for the first time on
appeal, see Potter v. District of Columbia, 558 F.3d 542, 547
(D.C. Cir. 2009), Shea’s argument has been consistent
throughout the litigation: The Department’s 1990-92 Plan
impermissibly discriminated against him in violation of Title
VII. On appeal, Shea enjoys a measure of latitude to
elaborate on his theory in service of the same argument. His
reliance on Ricci for the first time on appeal lies within that
latitude. Moreover, although Shea did not press a Ricci-based
argument before the district court, the district court invoked
Ricci on its own, observing that “nothing in Ricci directly
overturns or modifies Johnson, at least as it applies to this
case.” Shea, 961 F. Supp. 2d at 54 n.17. Shea is permitted to
respond on appeal by explaining why he thinks Ricci governs
this case. See Citizens United v. Fed. Election Comm’n, 558
U.S. 310, 330 (2010).

Shea’s argument based on Ricci fails on the merits,
however. Johnson and Weber are directly applicable to this
case. They set out the framework for “evaluating the
compliance of an affirmative action plan with Title VII’s
prohibition on discrimination,” Johnson, 480 U.S. at 640, the
precise question in issue here. Those decisions
unquestionably would control our analysis unless a
subsequent decision dictates otherwise. Ricci is not such a
decision. In reaching that conclusion, we draw guidance from
 19
the Supreme Court’s admonition against concluding that its
“more recent cases have, by implication, overruled an earlier
precedent.” Agostini v. Felton, 521 U.S. 203, 237 (1997).
Rather, if “a precedent of [the Supreme] Court has direct
application in a case, yet appears to rest on reasons rejected in
some other line of decisions, the Court of Appeals should
follow the case which directly controls, leaving to [the] Court
the prerogative of overruling its own decisions.” Id.

Here, Johnson and Weber have “direct application,” and
we have no occasion or cause to conclude that Ricci, “by
implication,” overruled those decisions. Id. Indeed, Ricci
does not mention or even cite—much less discuss—Johnson
and Weber. That is understandable, as Ricci, by its own
description, addressed a particular situation not in issue here.
Cf. Ricci, 557 U.S. at 626 (Ginsburg, J., dissenting) (“[Ricci]
does not involve affirmative action.”). In Ricci, the Court’s
“analysis beg[an] with this premise: The City’s actions would
violate the disparate-treatment prohibition of Title VII absent
some valid defense.” Id. at 579. The inquiry prescribed by
Johnson and Weber, by contrast, pertains to assessing whether
there is a violation of Title VII’s disparate-treatment
prohibition in the first place, the same question we address
here.

The specific question addressed in Ricci was whether,
even though the City’s action in discarding the test results was
assumed to violate Title VII’s disparate-treatment prohibition,
that action could be justified based on a particular objective
asserted by the City: avoiding liability in a Title VII disparate-
impact lawsuit. The Court expressly framed its holding by
reference to actions taken for that particular purpose:

We hold only that, under Title VII, before an
employer can engage in intentional
 20
discrimination for the asserted purpose of
avoiding or remedying an unintentional
disparate impact, the employer must have a
strong basis in evidence to believe it will be
subject to disparate-impact liability if it fails to
take the race-conscious, discriminatory action.

Id; see id. at 580 (“We consider, therefore, whether the
purpose to avoid disparate-impact liability excuses what
otherwise would be prohibited disparate-treatment
discrimination.”) (emphasis added).

The employers in Johnson and Weber did not modify the
outcomes of personnel processes for the asserted purpose of
avoiding disparate-impact liability under Title VII. Nor did
the State Department here. The Department, like the
employers in Johnson and Weber, instead acted to “expand[]
job opportunities for minorities and women,” Johnson, 480
U.S. at 622, and to “eliminate traditional patterns of racial
segregation,” Weber, 443 U.S. at 201; see id. at 209 & n.9.
Ricci does not purport to reach the Department’s actions in
pursuit of those purposes. Weber and Johnson therefore still
control. The only other court of appeals of which we are
aware to have addressed the interaction between Ricci and the
Johnson-Weber framework reached the same conclusion. See
United States v. Brennan, 650 F.3d 65, 102-04 (2d Cir. 2011).

IV.

Under the framework established by Johnson and Weber,
we ask first if Shea establishes a prima facie case of
discrimination. Second, we examine whether the State
Department can articulate a nondiscriminatory reason—in this
case, a valid affirmative action plan—for its actions. Finally,
we assess whether Shea carries his burden to prove that the
 21
Department’s plan is invalid. The district court found that
Shea and the Department made the requisite showings at the
first and second steps, respectively. The court then found
Shea to falter at the third step and therefore granted summary
judgment in favor of the Department. We agree at each step.

A.

We first address whether Shea has made out a prima facie
case of reverse discrimination in violation of Title VII. At the
outset, we note that neither party has addressed the potential
implications of our decision in Brady v. Office of Sergeant at
Arms, 520 F.3d 490 (D.C. Cir. 2008), for Johnson’s direction
to assess whether the “plaintiff establishes a prima facie
case,” Johnson, 480 U.S. at 626. Brady explained that, when
“an employee has suffered an adverse employment action and
an employer has asserted a legitimate, non-discriminatory
reason for the decision, the district court need not—and
should not—decide whether the plaintiff actually made out a
prima facie case.” 520 F.3d at 494. Rather, “the district court
must resolve one central question: Has the employee
produced sufficient evidence for a reasonable jury to find that
the employer’s asserted non-discriminatory reason was not
the actual reason and that the employer intentionally
discriminated against the employee on the basis of” a
prohibited characteristic? Id. We have since invoked Brady
in the context of a reverse-discrimination claim. See Ginger
v. District of Columbia, 527 F.3d 1340, 1344 (D.C. Cir.
2008).

We have not, however, specifically applied Brady in the
context of a reverse-discrimination suit challenging the
validity of an employer’s affirmative action plan under Title
VII. In that domain, Johnson has long set forth the governing
approach. Because no party on appeal argues that Brady
 22
should alter that framework, and because the existence of a
prima facie case is readily resolved in this case in Shea’s
favor, we leave for another day the resolution of the
interaction between Brady and Johnson. We therefore
proceed on the assumption that Johnson’s framework—
including its call for examining the establishment of a prima
facie case—is controlling for our purposes.

Here, the State Department contests Shea’s establishment
of a prima facie case in only one respect. As part of the
showing necessary to make out a prima facie case of
discrimination (or reverse discrimination) in violation of Title
VII, a plaintiff must establish that he has been subjected to an
adverse employment action. George v. Leavitt, 407 F.3d 405,
412 (D.C. Cir. 2005). The Department argues on appeal, for
the first time in this case’s long history, that Shea suffered no
adverse employment action from his hiring at an entry-level
(rather than mid-level) position because he never applied for
direct mid-level placement, either through the 1990-92 Plan
or through the race-neutral CCP. We do not reach the merits
of that argument because the Department forfeited it by
failing to raise it until this late stage.

Although “we may affirm a judgment on any ground that
the record supports and that the opposing party had a fair
opportunity to address,” Jones v. Bernanke, 557 F.3d 670, 676
(D.C. Cir. 2009) (internal citation and quotation marks
omitted), an argument “never made below is waived on
appeal,” id. (citing Marymount Hosp., Inc. v. Shalala, 19 F.3d
658 (D.C. Cir. 1994)). The Department at no point in the
previous fourteen years of litigating this case contended that
Shea’s failure to apply for a mid-level position could affect
his establishment of a prima facie case. It has instead fought
Shea’s prima facie showing on other grounds. “[A]bsent
exceptional circumstances not present here, it is not our
 23
practice to entertain issues first raised on appeal.”
Marymount Hosp., 19 F.3d at 663 (quoting Roosevelt v. E.I.
Du Pont de Nemours & Co., 958 F.2d 416, 419 & n.5 (D.C.
Cir. 1992)) (quotation marks omitted). We adhere to that
practice today. Because the Department has forfeited any
argument that Shea suffered no adverse employment action,
and because the Department otherwise does not challenge his
establishment of a prima facie case on appeal, we agree with
the district court that Shea has made that showing.

B.

At the second step of Johnson’s framework, the
Department must “articulate a nondiscriminatory rationale for
its decision.” Johnson, 480 U.S. at 626. Johnson observes
that “[t]he existence of an affirmative action plan provides
such a rationale.” Id. We do not understand Johnson to
mean, however, that an employer establishes a legitimate,
nondiscriminatory reason for its decision merely by showing
that it acted pursuant to an affirmative action plan. See Hill v.
Ross, 183 F.3d 586, 590 (7th Cir. 1999).

Rather, the Johnson framework maps onto McDonnell
Douglas’s three steps. Johnson, 480 U.S. at 626-27. To
satisfy its burden of production at the second McDonnell
Douglas step, the State Department must “introduce evidence
which, taken as true, would permit the conclusion that there
was a nondiscriminatory reason for” its actions. St. Mary’s
Honor Ctr. v. Hicks, 509 U.S. 502, 509 (1993) (emphasis
omitted). And while a valid affirmative action plan is
considered nondiscriminatory, see Parker v. Balt. & Ohio
R.R. Co., 652 F.2d 1012, 1017 n.9 (D.C. Cir. 1981), an invalid
affirmative action plan is discriminatory, see Taxman, 91 F.3d
at 1567. As a result, the Department needs to produce
“evidence which, taken as true, would permit the conclusion”
 24
that it acted for a “nondiscriminatory reason,” i.e., pursuant to
a valid affirmative action plan. Hicks, 509 U.S. at 509
(emphasis omitted); see Shea, 961 F. Supp. 2d at 33-34.

We have explained that, under Johnson and Weber, a
valid affirmative action plan should satisfy two general
conditions. First, a valid plan rests on an adequate factual
predicate justifying its adoption, such as a “manifest
imbalance” in a “traditionally segregated job categor[y].”
Johnson, 480 U.S. at 631; see Hammon II, 826 F.2d at 74-75.
Second, a valid plan refrains from “unnecessarily
trammel[ing] the rights of [white] employees.” Johnson, 480
U.S. at 637-38; see Hammon II, 826 F.2d at 81. We take up
those considerations in order.

1.

The district court concluded that the Department
adequately grounded its 1990-92 Plan in evidence of a
manifest imbalance in a traditionally segregated job category.
See Shea, 961 F. Supp. 2d at 34-39. We agree.

a.

Ascertaining the existence of a “manifest imbalance” is a
“fact-specific task” in a “sensitive and delicate area.”
Hammon II, 826 F.2d at 75. One method that may be used to
demonstrate such an imbalance—and the one relied on by the
State Department here—entails a showing of statistical
disparities between the racial makeup of the employer’s
workforce and that of a “comparator population.” If the
positions in question “require no special expertise,” the
comparator population would be “‘the area labor market or
general population.’” Id. (citation omitted) (quoting Johnson,
480 U.S. at 632). But for “jobs that require special training,”
 25
the ‘“comparison should be with those in the labor force who
possess the relevant qualifications.’” Id. (citation omitted)
(quoting Johnson, 480 U.S. at 632).

When the Department adopted the 1990-92 Plan, the
agency had before it two analyses comparing its own
workforce with the labor pool possessing the relevant
qualifications: (i) the 1989 GAO Report, and (ii) a formal
analysis conducted by the Department itself when
promulgating the 1990-92 Plan. The Department points to
those two statistical studies as its principal evidence of a
manifest imbalance between minority representation in the
Foreign Service and the comparator population.

Shea contends that the Department cannot rely on either
of those studies. He argues that the 1990-92 Plan amounted
only to a continuation of a preexisting affirmative action plan
in place from 1987-89, and that the 1990-92 Plan thus was
actually adopted in 1987. Shea submits that any data on
which the Department purports to justify any affirmative
action plan must have been in its possession when it
promulgated the plan—which, by Shea’s account, would have
been in 1987, before either the 1989 GAO Report or the 1990-
92 Plan’s analysis. Consequently, Shea argues, the State
Department is foreclosed from invoking either study as a
justification for its actions.

We assume arguendo the correctness of Shea’s premise
that the Department cannot justify its race-conscious actions
by reference to post hoc data collection. Even so, Shea errs in
contending that the Department cannot rely on the 1989 GAO
Report or the findings contained in the 1990-92 Plan to justify
the Plan. The district court concluded that the Department’s
1987-89 affirmative action efforts and the 1990-92 Plan in
fact were two different plans. See Shea, 961 F. Supp. 2d at
 26
30. We would tend to agree. But even if otherwise, the 1990-
92 Plan at the very least amounted to a review and overhaul of
the Department’s affirmative action efforts. See, e.g., U.S.
Dep’t of State, Multi-Year Plan, FY 1990-92 at 51 (rev.
version Apr. 30, 1991) (1990-92 Plan Document) (assembling
new diversity statistics for purposes of the 1990-92 Plan); id.
at 61 (noting that the 1987-89 plan “has been refined . . . to
define better the type of candidate to be recruited” (emphasis
added)). “When a program that has been reauthorized is
challenged, all evidence available to the [decisionmaker] prior
to reauthorization must be considered in assessing” the
program’s legality. Rothe Dev. Corp. v. U.S. Dep’t of Def.,
262 F.3d 1306, 1328 (Fed. Cir. 2001). Accordingly, even if
the 1990-92 Plan amounted to a reauthorization of the
Department’s 1987-89 affirmative action efforts, and even if
the Department cannot justify its actions based on post hoc
data, the 1989 GAO Report and the findings contained in the
1990-92 Plan are a proper evidentiary proffer.

The version of the 1990-92 Plan in our record contains
the Department’s employment data from 1989 and 1990. As
the 1989 data represent the data in the State Department’s
possession both at the time it promulgated the 1990-92 Plan
and at the time Shea applied to the Foreign Service, we use
that data (though we note that the minor differences between
the 1989 and 1990 data would have no impact on our
conclusions today). The 1990-92 Plan’s findings showed
improvement in the Foreign Service’s diversity from the time
of the 1989 GAO Report. The combined FS-02 and -03
levels, for instance, showed underrepresentation only for
Native Americans and Alaskans. See 1990-92 Plan
Document at 46a; 47a. For other minority populations at the
combined FS-02 and -03 positions, there were no imbalances,
manifest or otherwise. As a result, Shea contends, the
Department cannot justify the 1990-92 Plan by claiming that
 27
it addressed manifest imbalances for all minority groups at
those levels.

The Department initially asserts that the 1990-92 Plan
established “goals” only for groups specifically shown in the
data to be underrepresented. We take this to mean, for
example, that, at the combined FS-02 and -03 levels, “goals”
would have been set only for Native Americans and Alaskans,
and not for other minority populations. If the “goals”
operated such that only members of the underrepresented
minority groups received favorable treatment in the
application process relative to Shea, the Department’s
argument would have force. But the Department provides no
information about how the “goals” would have worked in
practice. And we find no description in the record. All that
we can glean from the record is that all minority applicants
received the main benefit available under the 1990-92 Plan—
waiver of the certificate-of-need requirement for entry into the
FS-01, -02, and -03 levels.

The Department’s defense of the 1990-92 Plan stands on
stronger footing, however, with regard to more senior-level
positions. Looking up the ranks from the FS-02 and -03
levels, the Department identified a more across-the-board
manifest imbalance. The Department first points to the FS-01
level. According to the 1990-92 Plan data, all minority
groups were underrepresented at the FS-01 level at the time of
the plan’s promulgation. To achieve full representation, the
number of black Officers at that level would have needed to
increase by 62%, Hispanics by 14%, Native Americans and
Alaskans by 256%, and Asians and Pacific Islanders by 47%.
See 1990-92 Plan Document at 46a; 47a.

The Department also points to the ranks of the SFS. The
1990-92 Plan, so far as we can tell, contains no specific data
 28
on diversity in the SFS. Accordingly, we look to the SFS
findings from the 1989 GAO Report. Those findings show
underrepresentation of all minority groups at the SFS level.
And the imbalances are manifest: To achieve full
representation, the number of black Officers in the SFS would
have needed to increase by 154%, Hispanics by 163%, Asians
and Pacific Islanders by 700%, and, for Native Americans and
Alaskans, by an undefined percentage (because the Foreign
Service had no SFS Officer of Native American or Alaskan
origin). See 1989 GAO Report at 17.

b.

Johnson speaks in terms not just of any manifest
imbalance, but of a manifest imbalance in a traditionally
segregated job category. 480 U.S. at 631. As the Court
explained, the “requirement that the manifest imbalance relate
to a traditionally segregated job category provides
assurance” that “race will be taken into account in a manner
consistent with Title VII’s purpose of eliminating the effects
of employment discrimination.” Id. at 632 (quotation marks
omitted). That approach guards against licensing an employer
to seek proportional representation purely for its own sake.
The Department must make a showing that, if taken as true,
would permit the conclusion that the manifest imbalance
resulted from a “predicate of discrimination” rather than from
benign forces. Hammon II, 826 F.2d at 74-75, 80-81. We
find that the Department has done so.

First, the substantial imbalances at the SFS level
themselves indicate that discriminatory practices may well
have been afoot. While a significant disparity is not itself
dispositive, “ranks [that are] overwhelming[ly] white” are “a
powerful present-day demonstration of a prior regime of
discrimination.” Hammon v. Barry (Hammon I), 813 F.2d
 29
412, 427 (D.C. Cir. 1987) (referring to Weber). Here, the
disparity between white and non-white SFS Officers qualifies
as overwhelming. Of the 655 serving SFS Officers counted
by the 1989 GAO Report, 631 were white. See 1989 GAO
Report at 17. “[F]ine tuning of the[se] statistics could not
have obscured the glaring absence of minority” officers. Int’l
Bhd. of Teamsters v. United States, 431 U.S. 324, 342 n.23
(1977).

Second, testimony before Congress concerning the 1989
GAO Report, the Bremer Study Group Report, and the
Thomas Commission Report provided Congress with
evidence of pervasive historical discrimination in the Foreign
Service tracing as far back as the 1960s. For example, one
witness testified that, when he “entered on duty in State in late
1965 . . . [he] had [his] first experience with discrimination,
aside from what [he] had experienced while stationed in the
South,” and further noted that “[m]inorities have been
underrepresented purposefully” within the Department. 1989
Subcomm. Hearing at 33, 39. Another witness, focusing on
gender discrimination at the Department, explained that,
while “[i]nstances of blatant sexism and discrimination have
declined, . . . some do still take place,” and “a simple glance
at the statistics contained in the [1989 GAO Report] . . . will
confirm the continued existence of a problem.” Id. at 42. The
former EEOC Commissioner offered his assessment that
“[t]he State Department wants to hire what I call the mythical
American, the 5’10,” 160 pound WASP man in perfect
physical and mental health.” J.A. 342. And the Department’s
Deputy Assistant for Equal Opportunity and Civil Rights
provided testimony that, around the world, he had
“encountered complaints of discrimination from [State’s]
employees and criticisms from foreigners for that same
discrimination as exhibited by our predominantly white male
diplomatic corps.” Id. at 13.
 30

To the House Subcommittee on the Civil Service, such
testimony likely came as no surprise. While the record before
us does not contain the underlying materials, Representative
Sikorski, the Subcommittee Chairman, stated his belief that
those reports confirmed a State Department inadequately
concerned with diversity. Previous investigations and
hearings by his subcommittee, he stated, “documented serious
instances of discriminatory treatment by the Foreign Service
of women, minorities, and people with handicaps.” 1989
Joint Hearing at 10. His testimony included the revelation
that “more than 240 Equal Employment Opportunity (EEO)
cases” had been filed and indications that previous efforts to
diversify the Foreign Service championed by the Secretary of
State were “largely ignored by the Department.” Id.
Moreover, he noted, the Department had “been repeatedly
cited by the [EEOC] for submitting deficient [diversity]
reports.” Id. The 1989 GAO Report noted that, despite
repeated criticism including suggestions of bias, the State
Department never “conducted analyses of possible
impediments to equal employment opportunity.” 1989 GAO
Report at 4.

This case is therefore a far cry from our decisions in
Hammon I and II, in which we determined that the District of
Columbia had failed to demonstrate the predicate of
discrimination necessary to justify an affirmative action
program for its hiring of firefighters. The challenged plan
purportedly addressed the District’s history of discriminatory
hiring against black applicants. But during the relevant
historical period, blacks made up an average of 41.8% of the
firefighters hired each year, Hammon I, 813 F.2d at 427, and,
at the time of the challenge, 37% of the firefighting workforce
overall, Hammon II, 826 F.2d at 77. The proper comparator
pool was 29.3% black. Hammon I, 813 F.2d at 428. In light
 31
of those figures, the District “steadfastly and persuasively
protested its innocence of any discriminatory activity,” and
we agreed. Id. at 427.

Here, by contrast, evidence identified by the Department
would permit the conclusion that there had been a past
practice of discrimination with continuing effects through the
early 1990s. We therefore agree with the district court that
the Department made an adequate evidentiary proffer that the
1990-92 Plan “served to remedy the lingering effects of
State’s past discrimination.” Shea, 961 F. Supp. 2d at 39.

2.

Having shown the necessary factual predicate for the
1990-92 Plan in the form of a manifest imbalance in a
traditionally segregated job category, the Department faces
one additional requirement: The plan must not have
unnecessarily trammeled the rights of white applicants.
Johnson, 480 U.S. at 637-38; Hammon II, 826 F.2d at 81.
We, like the district court, conclude that the Department has
made an adequate showing in this regard.

a.

There is “no precise formula for determining whether an
affirmative action plan unnecessarily trammels the rights of
non-beneficiaries.” In re Birmingham Reverse
Discrimination Emp’t Litig., 20 F.3d at 1541. Rather, a
number of considerations inform the inquiry. See Johnson,
480 U.S. at 637-40; Weber, 443 U.S. at 208-09; Hammon II,
826 F.2d at 81. Those considerations weigh in favor of the
1990-92 Plan’s validity.
 32
First, the type of affirmative action plan matters.
Affirmative action in hiring generally poses less of a concern
than affirmative action in layoffs. See Johnson, 480 U.S. at
638. Hiring decisions upset settled expectations to a lesser
degree (because an applicant has no absolute entitlement to a
job), and they affect a more diffuse group (all potential
applicants) than do layoffs, which target specific employees.
See United States v. Paradise, 480 U.S. 149, 183 (1987)
(plurality opinion) (“Denial of a future employment
opportunity . . . is not as intrusive as loss of an existing job.”)
(quotation marks omitted); cf. Firefighters Local Union No.
1784 v. Stotts, 467 U.S. 561, 578-79 (1984). Here, the 1990-
92 Plan awarded benefits to minority candidates only in the
hiring process, and even then, only at the very initial stage.

Second, the degree of benefit, or “plus,” bestowed by the
affirmative action plan can make a difference. Affirmative
action resulting in the hiring only of qualified candidates
more easily survives scrutiny than affirmative action resulting
in the hiring of unqualified beneficiaries. See Johnson, 480
U.S. at 637-38. In this case, the Department’s 1990-92 Plan
provided for hiring only of qualified candidates: Minority
applicants considered through the 1990-92 Plan underwent
the same rigorous application path as did white candidates
considered through the race-neutral CCP, with the only
difference coming in the form of the certificate-of-need
waiver at the threshold.

Third, the goals of the affirmative action plan affect the
inquiry. A plan that seeks to achieve full representation for
the particular purpose of remedying past discrimination will
generally be shorter in duration than one that pursues
proportional diversity for its own sake. When a plan pursues
only the former goal, it presumably would cease to operate
once full representation is achieved. And the shorter the time
 33
period for which a plan is in operation, the less it could be
said adversely to affect non-beneficiaries. In Weber, for
instance, the Court approvingly observed that the plan it
upheld was “not intended to maintain racial balance, but
simply to eliminate a manifest racial imbalance.” 443 U.S. at
208; see Johnson, 480 U.S. at 639-40. Here, the 1990-92 Plan
sought to attain more proportional representation, not to
maintain it in perpetuity. Indeed, the 1990-92 Plan ceased to
operate in 1993 and has not been replaced. Shea, 961 F.
Supp. 2d at 41-42.

Fourth, the extent to which the challenged plan limits
opportunities for advancement by non-beneficiaries is a
relevant consideration. In both Johnson and Weber, the Court
observed that the plan in question created no “absolute bar” to
the advancement of non-beneficiaries. Johnson, 480 U.S. at
637-38; Weber, 443 U.S. at 208. Here, Shea makes no
argument that the 1990-92 Plan engendered any “absolute
bar” to the advancement of non-minorities in the Foreign
Service ranks. Non-minority candidates from outside the
agency could apply directly to the mid-level ranks through the
race-neutral CCP, and internal white candidates could—and
did—gain promotion to mid-level positions from the Foreign
Service entry-level ranks.

b.

Our court has understood the need to avoid
“unnecessarily” trammeling the rights of non-minority
candidates to indicate that a challenged affirmative action
plan generally must be “tailored to fit the violation” sought to
be addressed. Hammon II, 826 F.2d at 74; see id. at 81. Here,
the 1990-92 Plan granted a certificate-of-need waiver to
candidates applying to the FS-01, -02, and -03 levels. The
Department’s identified manifest imbalances, however,
 34
occurred at only the more senior levels. Why bestow benefits
at the FS-02 and -03 levels if the manifest imbalances sought
to be addressed existed only at more senior positions? To do
so, Shea contends, means that the 1990-92 Plan was so over-
inclusive as to unnecessarily trammel the rights of white
applicants at the FS-02 and -03 levels.

The Department submits that there is a sound explanation
for targeting the FS-02 and -03 levels to address an imbalance
at more senior levels. The 1990-92 Plan satisfies the tailoring
requirement, the Department explains, because the FS-02 and
-03 levels serve as the training grounds for learning the skills
necessary to perform at the SFS and FS-01 levels. We agree.

The plan upheld in Weber is instructive. The employer in
Weber aimed to remedy the manifest imbalance in its ranks of
skilled workers: a mere 1.83% of its skilled workers were
black, while the labor force in the surrounding area was 39%
black. 443 U.S. at 198-99. To address the identified
imbalance in its skilled workforce, however, the employer
could not simply hire laborers lacking the requisite skills.
Rather, it needed to hire laborers after they had acquired those
skills. The employer established a training program to tackle
that problem, stipulating that 50% of all employees entering
the training program would be black until the percentage of
black skilled workers in its workforce approximated the
percentage in the local labor force. See id. at 199.

Weber thus provides an example of an affirmative action
plan going beyond strictly proportional representation in a
training program: 50% of the spots would go to the
company’s black workers, even though black persons made
up only 39% of the area labor force. Employees who had
completed Weber’s training program could then proceed to
the rank of skilled worker, where the manifest imbalance
 35
existed. The need to create an adequate pipeline of trained
workers meant that the program was sufficiently tailored to
target the “manifest imbalance” among skilled workers.

The State Department’s 1990-92 Plan worked similarly.
In order to attain full representation at the SFS and FS-01
levels, the Department maintains, it had to go beyond strictly
proportional minority representation at the FS-02 and -03
levels. It could then choose from qualified minority
candidates at those levels to staff its SFS and FS-01 ranks.

With regard to the SFS, the Department’s hiring
regulations in place at the time of the 1990-92 Plan
demonstrate that the Department valued a certain set of skills
in its SFS Officers and believed that the best way for SFS
candidates to gain those experiences was through service in
the mid-level Foreign Service ranks. The regulations
provided that career SFS Officers “normally shall be
appointed as the result of promotion of Mid-Level career
officers,” and generally limited the SFS to a maximum of five
percent external hires at any given time. Appointment of
Members of the Foreign Service, 48 Fed. Reg. 38,606, 38,607
(Aug. 25, 1983). Additionally, career SFS applicants
generally had to have completed at least five years of service
in a position “of responsibility . . . equivalent to that of a Mid-
Level Foreign Service officer (classes FS-1 through FS-3),”
with “duties and responsibilities . . . similar to or closely
related to that of a Foreign Service officer in terms of
knowledge, skills, abilities, and overseas work experience.”
Id. The difficulties encountered by those directly promoted to
a mid- or high-level position in the Foreign Service, which
usually included a “prolonged adjustment period” and
experiencing “a competitive disadvantage,” further suggest
that percolating through the ranks was, generally, a sounder
career path.
 36

The conclusion from the then-existing regulations is
straightforward: The Department believed that the best
training for the role of a SFS Officer was experience as an FS-
01, -02, or -03 Foreign Service Officer. The Department
similarly valued skills gleaned from experience at the FS-02
and -03 ranks for the position of an FS-01, with outside hires
into the FS-01 ranks serving as the small exception to the
Department’s general internal promotion ladder. See J.A.
343, 516-17. Shea has introduced no evidence contradicting
that understanding.

In view of the Department’s assessment that the most
qualified candidates for the SFS and FS-01 ranks would come
from its own mid-levels, the Department understandably saw
a need to go further than strictly proportional representation in
its mid-levels. That was necessary, the Department
reasonably concluded, in order to have a sufficient reservoir
of talented minority candidates from which to hire in order to
achieve diversity in its SFS and FS-01 ranks. Otherwise,
assuming that promotion rates were the same across races
from the mid-levels to the SFS and FS-01 levels, the
Department would need to await a great deal of turnover in
the overwhelmingly white SFS and FS-01 ranks before the
substantial imbalances at those levels would be rectified.

Congressional testimony on the 1989 GAO Report
reveals that very concern. Joseph Kelley of the General
Accounting Office, in response to questioning about when
“the State Department [would] become representative of the
American people,” told Congress that “[i]t is going to take a
long time,” and noted that the EEOC had been pushing the
Department “to have a program to move people around and to
have upper-level promotions, but it ha[d]n’t worked out that
well.” 1989 Subcomm. Hearing at 29-30. The Department
 37
required a method by which to augment the flow of minority
candidates to the SFS and FS-01 levels. As Representative
Sikorski observed, “if the numbers [only] get[] better
in . . . entry level and hiring,” then “there is no upward
progress. There is no flow in the right direction. We are
talking centuries.” Id. at 29-30.

It is no answer to claim that the Department could simply
promote minorities to the SFS and FS-01 levels at higher rates
than their non-minority peers. That itself would have been a
race-conscious action requiring justification. That option, at
any rate, appears to have been non-viable. Testimony before
Congress indicated that promotions of minorities to high-level
positions were already happening “too fast,” such that the
Department began “to get a backlash” that promotions were
“not [of] qualified . . . minorities” and that those promoted
were “not really ready to make this jump.” Id. at 47. Title
VII does not require the Department to promote unqualified
candidates to execute the important mission of our diplomatic
corps. For those reasons, the 1990-92 Plan’s emphasis on
hiring at mid-level positions was adequately tailored to
address manifest imbalances at the senior levels.

At its root, finally, the unnecessary trammeling inquiry
amounts to an exercise in balancing a plan’s attempts to
remedy past discrimination against the plan’s adverse impact
on the rights of non-minorities. In this case, the latter impact
was unquestionably limited. The 1989 GAO Report indicates
that the State Department had 655 SFS Officers, 836 FS-01
Officers, and 2,032 FS-02 or -03 Officers. 1989 GAO Report
at 17. Against that backdrop, the Department informs us that
only sixteen minority candidates were hired into the mid-
levels through the 1990-92 Plan over the three calendar years
of its operation. With such a modest effect on the hiring
process, the 1990-92 Plan was necessarily limited in the
 38
extent to which it could “trammel” Shea’s rights,
“unnecessarily” or otherwise.

c.

The tailoring inquiry, according to our decisions, also
takes into account whether the employer considered race-
neutral alternatives. See Hammon II, 826 F.2d at 81. While
the program we considered in Hammon failed to pass muster
because “reasonable alternatives were not seriously
discussed,” Hammon I, 813 F.2d at 430, the district court in
this case found the Department’s evidence to show that it
turned to the 1990-92 Plan’s race-conscious measures only
after race-neutral efforts failed to bear fruit. Shea, 961 F.
Supp. 2d at 40-41. We agree.

The record documents a number of previous attempts to
correct the identified imbalances without resort to explicit
racial preferences, particularly through recruiting and
outreach. From 1964 on, the Department targeted historically
black institutions as part of its “diplomat in residence”
program, through which it assigned a senior-level Foreign
Service Officer to research, writing, and teaching duties at a
university in an effort to generate interest in the Foreign
Service among students. 1989 GAO Report at 24. From
1980 on, the Department made a concentrated recruiting push
to stimulate an increase in minority applicants, including by
“provid[ing] information packages to colleges . . . and
ask[ing] college coordinators to encourage minorities . . . to
take the annual written [Foreign Service] examination.” Id. at
22-23. The Department’s recruiters made special efforts to
visit colleges and universities with large minority enrollments.
Id. at 23. Ultimately, however, the Department concluded
that its “recruiting efforts [did] not increase[] the number of
minorities taking the FS examination for officer positions.”
 39
Id. And in 1986, the Secretary of State implemented a
recommendation from black Foreign Service Officers aimed
at elevating minority written exam pass rates by increasing
minority enrollment in university courses relevant to the
exam. That initiative, too, apparently proved unsatisfactory.
See id. at 25.

The Department also instituted “sensitivity training”
between “senior management” and “senior minorities” to
address the gap, with little success. J.A. 369-70. Moreover, it
considered implementing an entirely race-neutral mid-level
entry program, but rejected that option as unlikely to be
effective—an understandable conclusion in light of the
inadequacy of State’s earlier reliance on “the promotion of
entry level FS officers to eliminate underrepresentation at
more senior levels.” J.A. 301, 543. The 1990-92 Plan thus
hardly constituted the Department’s maiden effort to solve its
persistent diversity problem, and Shea points to no other race-
neutral alternatives that should have been considered.

The Department, in short, has introduced evidence that
the 1990-92 Plan worked to target manifest imbalances in
senior-level positions in the Foreign Service Officer corps,
and that those imbalances resulted from past discrimination.
It has also introduced evidence that the Plan refrained from
unnecessarily trammeling the rights of non-minority
candidates. We therefore conclude that the Department
satisfies its burden to introduce evidence that, if taken as true,
demonstrates the 1990-92 Plan’s validity under Johnson and
Weber.

V.

Having concluded that the Department met its burden of
production at the second step of the Johnson-McDonnell
 40
Douglas framework, we ask at the final step whether Shea has
proven that the Department’s “justification is pretextual and
the plan is invalid.” Johnson, 480 U.S. at 626. In the district
court, Shea introduced his own lay statistical evidence in an
attempt to show that the Department’s identified manifest
imbalances did not exist. See Shea, 961 F. Supp. 2d at 45-53.
The district court rejected every piece of statistical evidence
proffered by Shea as inadmissible. See id. Shea does not
appeal those findings, and he raises no other claims of the
1990-92 Plan’s invalidity for purposes of Johnson’s third
step. He therefore necessarily fails to carry his burden at that
step, warranting the entry of summary judgment in favor of
the Department.

* * * * *

For the foregoing reasons, we affirm the district court’s
grant of summary judgment.
So ordered.
 WILLIAMS, Senior Circuit Judge, concurring: I join the
court’s opinion painstakingly applying the key Supreme Court
cases, Johnson v. Transp. Agency, Santa Clara Cnty., 480
U.S. 616 (1987), and United Steelworkers v. Weber, 443 U.S.
193 (1979). I write separately to note that this area of the law
continues to be rather amorphous and to call attention to a
statistical problem disclosed by the record but not raised by
the plaintiff on appeal.

Nearly three decades ago Judge Silberman observed that
he was “uncertain as to the meaning of ‘manifest imbalance.’”
Hammon v. Barry, 826 F.2d 73, 81 (D.C. Cir. 1987)
(Silberman, J., concurring in denial of rehearing). I fully
share that uncertainty, and would add that I have the same
reaction to all of the key terms prescribed by the Supreme
Court for assessing affirmative action plans under Title VII:
whether there has been “manifest imbalance” in a
“traditionally segregated job category,” and whether the plan
“unnecessarily trammels the rights” of the persons disfavored.
Court Op., 24. It may be that the Supreme Court selected
these terms to assure that, without saying it in so many words,
an employer can use race and gender for hiring or promoting
minorities or women to the extent appropriate to assure that
there is no “underrepresentation”—i.e., to amend any non-
trivial deviation from proportionality to some more or less
plausible applicant pool (at least so long as the employer can
muster vague, generalized and/or hearsay assertions of past
discrimination). This is not a self-evident interpretation of
Title VII’s directive that employers are not “to discriminate
against any individual . . . because of such individual’s race
[or] sex.”

The effect is especially striking here: Shea neither
challenged the district court’s ruling that his analysis of the
State Department’s calculations was inadmissible, Court Op.
40, nor its ruling that the affirmative action plan’s repeated
 2

declarations of “manifest imbalance” were sufficient without
expert provision of statistical support. See Shea v. Kerry, 961
F. Supp. 2d 17, 51-52 (D.D.C. 2013). The figures
underpinning State’s plan consist mainly of numerical
comparisons of various subgroups of Foreign Service
employees (“Administrative,” “Professional,” “Clerical,” etc.)
with a selected comparison group based on the “National
Civilian Labor Force” data for various types of workers, e.g.,
“Public Administration Administrators and Officials.” Joint
Appendix (“J.A.”) 209, 216. The description of the study in
the record, J.A. 209, does not state what statistical test or
standard of statistical significance the authors used, or indeed
whether they used any statistical method at all. Certainly they
do not suggest that they made an adjustment in the standard
for statistical significance to account for the multiplicity of
subgroups, as would be necessary if we assume that State was
seeking to identify only “imbalances” not attributable to
random chance. “When interpreting . . . a table which
summarizes results from a number of comparisons, one must
bear in mind that when the number of comparisons is large
[State’s report included hundreds], the probability may be
substantial that at least one disparity with a P-value less than
.05 will occur because of pure chance.” David C. Baldus &
James W. L. Cole, Statistical Proof of Discrimination § 9.03
(Supp. 1987); see also id. at n.24a (“It is a mathematical fact
that where 17 independent comparisons are to be tested, the
probability of finding one or more to be statistically
significant at the .05 level is .58, or almost 6 chances in 10.”).

Further impairing the value of the analysis is that many of
the subsets are so small as to indicate a complete lack of
intelligible criteria for State’s assertions of “manifest
imbalance,” a term the report often uses but never explains.
The report contains charts that split the workforce three ways
(by occupational subgroup, ethnicity, and gender), and in one
case it announces that it “reveals” a “manifest imbalance” of
 3

American Indian females (who represent 0.2% of the labor
force comparison data) in the Finance Officer division, which
employs only 125 people. J.A. 224-25. It seems improbable
that any statistical test or standard of significance could yield
evidence of a non-random “imbalance” for so small a
subgroup. To the extent the report is suggesting that some
purported “imbalances” could be amended by the hiring of a
single employee of the right ethnicity and gender in the
occupational unit in question, that response would, in turn,
presumably create “imbalance” in another direction—thus
appearing to undermine whatever criteria may have been used
to define “manifest imbalance.” See, e.g., J.A. 218-19; 224-
25. I recognize that Johnson is quite specific in stating that
the proof of imbalance needed as a prerequisite for race- and
gender-based affirmative action preferences is less than what
is needed to establish a prima facie case of a Title VII
violation, 480 U.S. at 632-33, but an employer performing this
exercise should at least be able to state its criteria for
“manifest imbalance.”

The State Department in this respect sounds rather like
the defendant university in Hill v. Ross, 183 F.3d 586, 591
(7th Cir. 1999): “What the University appears to have in
mind is a world in which the absence of discrimination means
that every department would exactly mirror the population
from which its members are hired. But that is statistical
nonsense.” In Hill, Judge Easterbrook went on to explain in
detail what made the university’s theories nonsensical.
Without close attention, Johnson’s seeming license to pursue
proportionality in a workforce can dissolve into a license to
pursue proportionality in almost any subset of the workforce.