Alexander v. Estepp

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MARC ALEXANDER; TIMOTHY CLARK;
GEORGE FRYE; ROBERT A. MOORE;
ANGELA MOORE; RICHARD SAXBERG;
JOSH DAVID REEDY,
Plaintiffs-Appellants,

v.

M. H. ESTEPP, individually and in
his capacity as Fire Chief; YVONNE
No. 95-2978
TYLER, individually and in her
official capacity; PRINCE GEORGE'S
COUNTY; MAUREEN HENNESSY,
individually and in her official
capacity; WILLIAM H. GODDARD,
individually and in his official
capacity,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Alexander Williams, Jr., District Judge.
(CA-93-2636-AW, CA-94-2090-AW)

Argued: June 5, 1996

Decided: September 5, 1996

Before WILKINSON, Chief Judge, MICHAEL, Circuit Judge, and
MACKENZIE, Senior United States District Judge for
the Eastern District of Virginia, sitting by designation.

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Affirmed in part, reversed in part, and remanded by published opin-
ion. Judge Michael wrote the opinion, in which Chief Judge Wilkin-
son and Senior Judge MacKenzie joined.

_________________________________________________________________

COUNSEL

ARGUED: Daniel F. Goldstein, BROWN, GOLDSTEIN & LEVY,
Baltimore, Maryland, for Appellants. Henry Robbins Lord, PIPER &
MARBURY, L.L.P., Baltimore, Maryland, for Appellees. ON
BRIEF: Joseph B. Espo, Lauren E. Willis, BROWN, GOLDSTEIN
& LEVY, Baltimore, Maryland, for Appellants. Leonard E. Cohen,
Ann L. Lamdin, PIPER & MARBURY, L.L.P., Baltimore, Maryland;
Barbara L. Holtz, Acting County Attorney, Sean D. Wallace, Deputy
County Attorney, PRINCE GEORGE'S COUNTY, MARYLAND
OFFICE OF LAW, Upper Marlboro, Maryland, for Appellees.

_________________________________________________________________

OPINION

MICHAEL, Circuit Judge:

The plaintiffs are six white men and one white woman who sought
employment as Prince George's County, Maryland, firefighters in
1993 and 1994. They sued fire department officials and the county
under 42 U.S.C. §§ 1981 & 1983, alleging that the department's affir-
mative action program impermissibly discriminates on the basis of
race and sex, in violation of the Equal Protection Clause of the Four-
teenth Amendment.1 The district court granted the defendants' motion
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1 The individual defendants and their positions and roles are as follows:
M.H. (Jim) Estepp is the county's fire chief. Maureen Hennessey was an
officer in the fire department's Administrative Services Division of the
Management Services Command and played a key role in hiring new
recruits. William F. Goddard, III, was the lieutenant colonel in charge of
the Management Services Command and also played a key role in hiring.
Yvonne R. Tyler, a civilian employee of the fire department, is the
administrative assistant in charge of personnel and is the recruitment and
examination board administrator.

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for summary judgment and denied the plaintiffs' cross-motion for
summary judgment.

We affirm in part the judgment of the district court, and we reverse
in part. We hold that (1) the department's affirmative action program
is invalid because it is not narrowly tailored to achieve its goals, (2)
further proceedings are necessary to determine whether plaintiff Josh
Reedy would have been hired but for the existence of the program,
(3) the other plaintiffs were not denied employment because of their
race or sex, and (4) the individual defendants have not established that
they are entitled to qualified immunity.

I.

Prince George's County chooses its firefighters in the following
manner. Applicants must take a pass/fail performance examination
and a written examination. Those who pass both are interviewed.
Each applicant is scored based on his or her performance on the writ-
ten examination and in the interview. The department then groups the
applicants into three "bands"--"Outstanding," "Well Qualified," or
"Qualified"--based on their combined scores. Within each band,
applicants are ranked based on their "preference level." A county
ordinance requires that within the same band (Outstanding, Well
Qualified, or Qualified), firefighter applicants are to be hired in the
following order:

(1) Current county employees seeking promotions;

(2) Disabled military veterans;

(3) Non-disabled veterans who were volunteer firefighters;

(4) All other non-disabled veterans;

(5) All other former volunteer firefighters;

(6) Displaced homemakers not in any of the above catego-
ries;

(7) County residents not in any of the above categories;

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 (8) All other persons.

Prince George's County Code § 16-162(d)(2)(i). The preferences for
volunteer firefighters ((3) & (5)), however, may be eliminated if the
county's personnel officer certifies in writing to the fire chief that
continued use of the preference "will have a disparate impact on a
protected class as defined by the guidelines of the Equal Employment
Opportunity Commission." Prince George's County Code § 16-
162(d)(4). Applicants within the same band who have the same pref-
erence level are ranked on the basis of their combined examination
and interview scores. The department maintains a list of the appli-
cants and their total rank (based on band, preference, and score). This
list is called the "Applicant Register," and it is continually updated as
new applicants apply and existing applicants withdraw their
applications.2

The mechanics of the department's affirmative action program
have never been committed to writing, but the record indicates that
the program works in the following manner. Each recruiting season
fire department officials set informal caps on the number of whites
and the number of males who will be offered employment.3 The
department offers applicants employment in the order in which they
are listed on the Applicant Register, but once a cap is reached (either
for whites or for males), a lower ranking, uncapped applicant is
offered employment instead of a higher ranking, capped applicant.

The informal caps are imposed in an effort to meet affirmative
action goals set (in percentages) by the county. In the past the coun-
ty's goals have tracked Census data. In 1993 and 1994 the county set
goals of having 18 percent of its workers female and 39 percent non-
white or Hispanic. Currently, 16 percent of county protective services
personnel (firefighters and paramedics) are female and 38 percent are
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2 The district court correctly held that the Applicant Register was not
inadmissible hearsay. The Applicant Register "set[ ] forth [ ] the activi-
ties of" the fire department, namely, the ranking of applicants for
employment. Fed. R. Evid. 803(8)(A).
3 The parties dispute what these"caps" should be called. The plaintiffs
have described them as quotas; the defendants call them flexible goals.
We believe the term "informal caps" is the most appropriate description.

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non-white or Hispanic. County officials have said that they expect to
increase the affirmative action percentage goals in order to track new
Census data expected to show increases in the county's minority pop-
ulation and in the percentage of female participation in the workforce.

The plaintiffs complain specifically about the 1993 and 1994 hiring
seasons. In 1993 the department offered employment to thirteen appli-
cants. According to the Applicant Register, none of the plaintiffs
ranked better than fourteenth in that hiring season. In 1994 the depart-
ment offered employment to nine applicants. Plaintiffs Marc Alexan-
der and Angela Moore received and accepted offers. 4 Five other
applicants accepted offers of employment. Plaintiff Josh Reedy ran-
ked eighth on the Applicant Register, but the department did not offer
him a job. The remaining plaintiffs ranked lower than ninth.

The plaintiffs sued seeking injunctive, declaratory, and monetary
relief. The district court rejected all of their claims and entered sum-
mary judgment in favor of the defendants.5

II.

We believe that the department's affirmative action program, as it
is currently structured, cannot pass constitutional scrutiny, even
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4 Moore received an offer because of the existence of the affirmative
action program.
5 The district court held as a preliminary matter that all the plaintiffs
had standing, including those who would not have been hired even in the
absence of the department's affirmative action program. We affirm this
ruling. "The injury in cases of this kind is that a `discriminatory classifi-
cation prevent[s] the plaintiff from competing on an equal footing.' The
aggrieved party `need not establish that he would have obtained the ben-
efit but for the barrier in order to establish standing.'" Adarand Con-
structors, Inc. v. Pena, 115 S. Ct. 2097, 2105 (1995) (quoting General
Contractors v. Jacksonville, 113 S. Ct. 2297, 2303-04 (1993)) (internal
citation omitted, modification in original). Standing is proper even where
a program "establishes `goals' rather than rigid `quotas.'" Bras v. Cali-
fornia Pub. Utils. Comm'n, 59 F.3d 869, 875 (9th Cir. 1995), cert.
denied, 116 S. Ct. 800 (1996); accord Omnipoint Corp. v. FCC, 78 F.3d
620, 628 (D.C. Cir. 1996).

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though "[t]he unhappy persistence of both the practice and the linger-
ing effects of racial discrimination against minority groups in this
country is an unfortunate reality, and government is not disqualified
from acting in response to it." Adarand, 115 S. Ct. at 2117.

All racial classifications--even those intended to benefit minority
groups--are subject to strict scrutiny. Id. at 2111 (racial classifica-
tions are "inherently suspect" and receive"a most searching examina-
tion") (citations omitted); see also City of Richmond v. J.A. Croson
Co., 488 U.S. 469 (1989). "Racial classifications are simply too perni-
cious to permit any but the most exact connection between justifica-
tion and classification." Adarand, 115 S. Ct. at 2113 (quoting
Fullilove v. Klutznik, 448 U.S. 448, 537 (1980) (Stevens, J., dissent-
ing)). An affirmative action program may be upheld only if it is nar-
rowly tailored to serve a compelling governmental interest. Id.

The county argues that its program is intended to benefit African
Americans and women by serving, among others, the following goals:
(1) redressing present effects of past and current incidents of discrimi-
nation and harassment within the department, (2) sending a message
that the department respects diversity and that discrimination and
harassment will not be tolerated, (3) promoting more effective fire
prevention and firefighting by fostering the trust of a diverse public,
and (4) serving educational goals by providing children with racially
and sexually diverse role models. The district court found that the first
interest asserted was compelling. The court relied on (1) "extensive
statistical evidence of discrimination" against African Americans and
women, (2) evidence that discriminatory behavior and attitudes within
volunteer fire departments carried over into the county fire department,6
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6 According to the defendants, at one time all volunteer fire depart-
ments but one, Chapel Oaks, excluded African Americans from member-
ship. Even though volunteer departments no longer formally exclude
African Americans, the County claims that an atmosphere of racial intol-
erance still pervades many volunteer departments, making African
Americans feel unwelcome and less likely to join. In addition, many
women have reported that they were sexually harassed while they were
members of volunteer departments and that male members of the depart-
ments made it known that women were not welcome. African Americans
and women were not allowed to ride fire trucks in some volunteer depart-
ments, for example, and were subject to hazing and offensive epithets.

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and (3) anecdotal evidence of harassment of African American and
female members of the county fire department. The plaintiffs chal-
lenge these findings, primarily on the grounds that most acts of
harassment and discrimination occurred long ago and that there is no
present evidence of racial or sexual animus within the Prince
George's County fire department. We need not resolve this dispute
because even assuming, arguendo, that the asserted interests are com-
pelling, the program is not narrowly tailored because the means cho-
sen by the department are not related closely enough to the interests
asserted.

The program is not narrowly tailored because means less drastic
than outright racial classification were available to department offi-
cials. In particular, the Prince George's County Code expressly pro-
vides that the fire department may eliminate its volunteer preference
in order to encourage diversity within the department. The department
did not, however, take that simple step. Indeed, if discriminatory atti-
tudes within the county fire department owe their origin to practices
within volunteer fire departments, as the defendants claim, then the
most logical solution is to deny volunteer firefighters the hiring pref-
erence they currently enjoy. If a governmental body finds itself linked
to a private entity that discriminates, the government should sever its
ties to the discriminating entity before resorting to reliance on a sus-
pect classification. "[E]xplicit racial preferences, if available at all,
must be only a `last resort' option." Hayes v. North State Law
Enforcement Officers Ass'n, 10 F.3d 207, 217 (4th Cir. 1993); see
also United States v. Paradise, 480 U.S. 149, 171 (1987) (plurality
opinion); In re Birmingham Reverse Discrimination Employment
Litig., 20 F.3d 1525, 1546-47 (11th Cir. 1994), cert. denied, 115 S.
Ct. 1695 (1995).

Another defect in the program is its tendency to benefit particular
minority groups that have not been shown to have suffered invidious
discrimination. The county claims that past pervasive discrimination
against African Americans requires it to maintain its affirmative
action program. The current program, however, treats all minority
groups alike, even though the county has presented evidence only of
discrimination against African Americans. The department has, for
example, passed over white applicants in favor of Hispanics and
South Asians, but there is no record evidence of discrimination

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against Hispanics or South Asians. This failure to match particular
racial or ethnic preferences with particular acts of discrimination
against particular racial or ethnic groups also shows that the program
as currently structured is not narrowly tailored. J.A. Croson, 488 U.S.
at 506; accord id. at 510-11 (O'Connor, J., concurring).7

III.

A.

None of the plaintiffs (except for Reedy, whose case we discuss
below) ranked high enough on the Applicant Register to have been
offered a job even in the absence of the fire department's affirmative
action program. Because the existence of the affirmative action pro-
gram did not cause them to be denied employment opportunity, the
plaintiffs (except Reedy) may not be awarded any personal relief. See
St. Mary's Honor Ctr. v. Hicks, 113 S. Ct. 2742, 2752 (1993); Jiminez
v. Mary Washington College, 57 F.3d 369, 377-78 (4th Cir.), cert.
denied, 116 S. Ct. 380 (1995); Zatler v. Wainwright, 802 F.2d 397,
401 (11th Cir. 1986) (per curiam).

The plaintiffs argue that their rank on the Applicant Register is sus-
pect due to department officials' discriminatory method of adminis-
tering and scoring exams and interviews. The district court rejected
this claim, as do we. We have conducted a de novo review of the
record evidence, and we agree with the district court that the plaintiffs
have not forecast sufficient evidence showing "that the Department
`played with the process' to ensure the hiring of minority applicants."
Dist. Ct. Op., at 7. We affirm the denial of personal relief to all the
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7 We also note that no written fire department document describes the
mechanics of the program's operation. Because the program here is
unwritten, judicial examination of its provisions is more difficult, lending
support to our finding that the program is not narrowly tailored. Cf.
White v. Roughton, 530 F.2d 750, 754 (7th Cir. 1976) (per curiam)
("[f]air and consistent application of [ ] requirements requires that [ ][ ]
written standards and regulations" be established); Baker-Chaput v.
Cammett, 406 F. Supp. 1134, 1140 (D.N.H. 1976) ("the establishment of
written, objective, and ascertainable standards is an elementary and
intrinsic part of due process").

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plaintiffs (except Reedy) for the reasons stated in the district court's
opinion. Id. at 7-9.

B.

Reedy's case is different. He ranked eighth on the Applicant Regis-
ter in a recruiting season when the department made nine offers.
Three of those offers went to affirmative action candidates ranked
lower than he. Thus it appears that Reedy would have received an
offer of employment in the absence of the affirmative action program
and that therefore he should be considered for relief. The defendants
claim, however, that Reedy was not offered a job because other appli-
cants refused their offers too close to the beginning of the depart-
ment's training period for a job offer to have been made to Reedy.
The district court should have addressed the factual issue of whether
Reedy would have been offered employment in the absence of the
department's affirmative action program.8 We therefore remand
Reedy's personal claim to the district court for a new determination
of whether he is personally entitled to relief.

IV.

The district court also held that the individual defendants were enti-
tled to qualified immunity. We disagree.

Government officials performing discretionary functions are
immune from civil liability unless "in the light of pre-existing law the
unlawfulness [of their conduct is] apparent." Anderson v. Creighton,
483 U.S. 635, 640 (1987). The plaintiffs may overcome this qualified
immunity only if they can demonstrate that the defendants' conduct
violated "clearly established statutory or constitutional rights of which
a reasonable person would have known." Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982). Thus the question is whether the individual
defendants should have known in 1993 and 1994 that the fire depart-
ment's affirmative action program was unconstitutional.
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8 According to the district court, Reedy was not hired because three
white males ranked higher than he did. Dist. Ct. Op., at 6. However,
because the program is invalid, this comparison is not relevant; Reedy
must be compared to all applicants, regardless of their sex or race.

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In 1989 the Supreme Court's decision in J.A. Croson (affirming
our 1987 decision striking down an affirmative action program, see
822 F.2d 1355) should have put all reasonable administrators of local
affirmative action programs on notice that their programs would be
subject to strict scrutiny. In that case the Supreme Court expressly
said that an affirmative action program may not give benefits to
minorities in general, but it must target benefits only to particular
groups that were the subject of particular acts of discrimination: "The
random inclusion of racial groups that, as a practical matter, may
never have suffered from discrimination" in the particular field and in
the particular location "suggests that perhaps the [defendant's] pur-
pose was not in fact to remedy past discrimination." J.A. Croson, 488
U.S. at 506. Furthermore, in Podberesky v. Kirwan, 956 F.2d 52 (4th
Cir. 1992), we reaffirmed the importance of maintaining a close nexus
between the remedy and the discrimination the remedy is intended to
correct. Fire department officials at least should have re-evaluated the
mechanics of and need for their affirmative action program at that
time. Also, by the time of the 1994 hiring season, a reasonable official
would have been aware of two of our opinions, Hayes (1993), supra,
and Maryland Troopers Ass'n, Inc. v. Evans, 993 F.2d 1072 (4th Cir.
1993), in which we held state affirmative action programs invalid
because they were not narrowly tailored to serve compelling state
interests. Thus we believe that the individual defendants have not
established their entitlement to qualified immunity because case law
(about which a reasonable official would have known) had clearly
established by 1993 and 1994 that the department's affirmative action
program failed to satisfy the strict requirements of the Equal Protec-
tion Clause.

V.

The judgment of the district court is affirmed in part and reversed
in part. The case is remanded for fashioning of appropriate injunctive
and declaratory relief, for consideration of whether plaintiff Reedy
was denied an offer of employment because of his race or sex, and
for further proceedings consistent with this opinion.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

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