Parks v. City of Warner Robins, GA

United States Court of Appeals,

Eleventh Circuit.

No. 94-8097.

Brenda A. PARKS, Plaintiff-Appellant,

v.

CITY OF WARNER ROBINS, GEORGIA, A body politic acting under the
authority of the Constitution of the State of Georgia and the Laws
of Georgia, the City of Warner Robins, City Council, A Council
created under the Laws of the State of Georgia, Ed Martin, in his
official capacity as Mayor of the City of Warner Robins, and in his
individual capacity, Curtis E. Dempsey, in his official capacity as
a member of the City Council, and in his individual capacity,
William W. Douglas, in his official capacity as a member of the
City Council, and in his individual capacity, et al., Defendants-
Appellees.

Jan. 26, 1995.

Appeal from the United States District Court for the Middle
District of Georgia. (No. 92-CV-146-3-MAC), Wilbur D. Owens, Jr.,
Chief Judge.

Before EDMONDSON and BIRCH, Circuit Judges, and HILL, Senior
Circuit Judge.

BIRCH, Circuit Judge:

In this appeal, we consider for the first time in our circuit

whether a city's anti-nepotism policy denies the fundamental right

to marry protected by the Due Process Clause of the Fourteenth

Amendment, infringes the right of intimate association implicit in

the First Amendment, or has a disparate impact on women in

violation of the Equal Protection Clause of the Fourteenth

Amendment. The district court held that the anti-nepotism policy

is constitutional. We AFFIRM.

I. BACKGROUND

Plaintiff-appellant Brenda Parks is a Sergeant in the Special

Investigative Unit of the Warner Robins Police Department, where
she has worked since August, 1984. In October, 1989, Parks became

engaged to A.J. Mathern, a Captain in the Criminal Investigative

Unit of the Warner Robins Police Department. Mathern also began

working for the Warner Robins Police Department in August, 1984,

approximately two weeks before Parks arrived. Both Parks and

Mathern hold supervisory positions in the police department.

Mathern discussed his plans to marry Parks with George

Johnson, Chief of Police for Warner Robins, who informed Mathern

that the two would be in violation of Warner Robins' anti-nepotism
policy. Defendant-appellees City of Warner Robins, its mayor and

city council ("Warner Robins") adopted the anti-nepotism policy as
1
a city ordinance in 1985. The anti-nepotism policy prohibits

1
The statute provides in relevant part:

Sec. 18-3. Anti-nepotism.

(a) Definitions. "Relative" is defined to include
spouse, child, stepchild, grandchild, parent,
grandparent, brother, sister, half-brother,
half-sister, uncle, aunt, niece, nephew or the spouse
of any of them. These relationships shall include
those arising from adoption. Persons who are common
law married or who are living together without the
benefit of matrimony are also considered as relatives
under the intent of this rule....

....

(d) Relatives of supervisory employees. Relatives
of employees in positions that carry any degree of
supervision shall not be employed anywhere in the
department in which the supervisor works, but may be
employed in other departments of the city.

(e) Relatives of nonsupervisory employees.
Subject to the foregoing provisions, relatives of
nonsupervisory employees may be employed by the city in
any position which they are qualified to fill.

....
relatives of city employees in supervisory positions from working

in the same department. Warner Robins, Ga., Code § 18-3(d). The

prohibition does not extend to nonsupervisory employees, nor does

it prevent relatives of supervisory employees from working in other

departments of the city. Johnson told Mathern that if the two

married, the less-senior Parks would have to leave the police

department. Rather than losing her job, Parks postponed the

wedding and brought the instant lawsuit; Parks and Mathern have

remained engaged, but unmarried, for over four years.
Arguing that Warner Robins' anti-nepotism policy infringed her

First Amendment right of intimate association by conditioning her

employment on the nonassertion of her right to marry, Parks sought

declaratory and injunctive relief under 42 U.S.C. § 1983 and 28

U.S.C. § 2201. Parks also contended that the policy violated both

the Due Process Clause of the Fourteenth Amendment by denying her

fundamental right to marry and the Equal Protection Clause of the

Fourteenth Amendment by having a disparate impact upon women. On

(g) Employees who become related subsequent to
employment. The limitations on employment of relatives
specified in this section shall apply to the continued
employment of persons who become relatives subsequent
to their employment by the city due to their getting
married to each other. If an appropriate transfer
cannot be arranged, the less senior employee will be
terminated.

....

(i) This section shall be effective March 18,
1985.

Warner Robins, Ga., Code § 18-3. The Warner Robins
anti-nepotism policy also includes provisions restricting
the employment of relatives of elected and appointed
officials, purchasing and personnel department employees,
and the mayor's staff. See id. § 18-3(b), (c), (h).
motion for summary judgment, the district court found that the

policy was not a direct restraint on the right to marry;

consequently, the court applied rational basis scrutiny to the

policy and found that the statute was constitutional under both the

First Amendment and Due Process Clause. The district court

dismissed Parks' Equal Protection Clause claim after finding that

she had "set forth no evidence that would indicate that the alleged

unequal application [of the policy] was in any way the result of

purposeful discrimination." R2-58-18. Finding no constitutional

infirmities in the challenged policy, the district court granted

Warner Robins' summary judgment motion, 841 F.Supp. 1205.

II. DISCUSSION

On appeal, Parks argues that the district court erred by

granting summary judgment to Warner Robins. Specifically, Parks

realleges her substantive due process right to marry, her right of

intimate association, and her disparate impact claims. A district

court may grant summary judgment "if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to judgment

as a matter of law." Fed.R.Civ.P. 56(c). A moving party is

entitled to summary judgment if the nonmoving party has "failed to

make a sufficient showing on an essential element of her case with

respect to which she has the burden of proof." Celotex Corp. v.

Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265

(1986).

We review the district court's grant of summary judgment de
novo, applying the same legal standards used by the district court.

Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1117 (11th Cir.1993).

Additionally, we note that we may affirm the district court's

decision on any adequate ground, even if it is other than the one

on which the court actually relied. Id.

A. Substantive Due Process

Parks argues that Warner Robins' anti-nepotism policy

violates her substantive due process rights by denying her the

fundamental right to marry. That the right to marry is a
fundamental right protected by the substantive component of the Due

Process Clause of the Fourteenth Amendment is well established.

See, e.g., Planned Parenthood v. Casey, --- U.S. ----, ----, 112

S.Ct. 2791, 2805, 120 L.Ed.2d 674 (1992); Zablocki v. Redhail, 434

U.S. 374, 383-85, 98 S.Ct. 673, 679-81, 54 L.Ed.2d 618 (1978);

Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 1824, 18 L.Ed.2d

1010 (1967); McCabe v. Sharrett, 12 F.3d 1558, 1562 (11th

Cir.1994).2

2
We cite McCabe for the proposition that the right to marry
is a fundamental right. Parks would have us go further and
follow our analysis in McCabe rather than the Supreme Court's
line of right-to-marry cases beginning with Loving. In McCabe,
we used three separate standards to evaluate a police chief's
decision to reassign his personal secretary to another department
after she married one of his subordinates. Unlike the
legislative act embodied in Warner Robins' anti-nepotism policy,
however, the secretary's reassignment in McCabe was a
quintessentially executive act. See McKinney v. Pate, 20 F.3d
1550, 1557 n. 9 (11th Cir.1994) (en banc) (distinguishing
executive acts, which "characteristically apply to a limited
number of persons" and which "typically arise from the
ministerial or administrative activities of members of the
executive branch" from legislative acts, which "generally apply
to a larger segment of ... society" and which include "laws and
broad-ranging executive regulations").

We applied three separate tests in McCabe because the
 Nevertheless, the Supreme Court has held that not every

statute "which relates in any way to the incidents of or

prerequisites for marriage" must be subjected to strict scrutiny.

Zablocki, 434 U.S. at 386, 98 S.Ct. at 681. "To the contrary,

reasonable regulations that do not significantly interfere with

decisions to enter into the marital relationship may legitimately

be imposed." Id. (emphasis added). Therefore, whether we examine

this ordinance under strict scrutiny or rational basis analysis

depends upon whether the statute "significantly interfere[s]" with

the decision to marry.

A statutory classification must interfere "directly and

substantially" with the right to marry before it violates the Due

Process Clause. Zablocki, 434 U.S. at 387, 98 S.Ct. at 681. In

Loving, the seminal case, the Court struck down as violative of the

"freedom of choice to marry" an anti-miscegenation statute that

voided interracial marriages and made them punishable as felonies.

Loving, 388 U.S. at 4, 12, 87 S.Ct. at 1819-20, 1824. The statute

at issue in Loving also provided that residents of Virginia who

left the state to enter into interracial marriages were subject to

criminal punishment upon returning to Virginia. Id. at 4, 87 S.Ct.

Supreme Court had yet to decide which test delimits the
effect that an executive act can have upon the fundamental
right to marry. See McCabe, 12 F.3d at 1564, 1567-74. As
discussed in the opinion following, however, the Supreme
Court has on several occasions addressed the extent to which
legislative acts may infringe upon the right to marry.
Moreover, in the context of a substantive due process
challenge, we have recently held that "[t]he analysis ...
that is appropriate for executive acts is inappropriate for
legislative acts." McKinney, 20 F.3d at 1557 n. 9. We
therefore decline to extend the analysis that we used in
McCabe to legislative acts, such as the one at issue here.
at 1819. Similarly, in Zablocki, the Court ruled unconstitutional

a state statute that required Wisconsin residents with child

support obligations to obtain a court order before they could

marry. Zablocki, 434 U.S. at 387, 390-91, 98 S.Ct. at 681, 683.

Under the statute, courts could grant such permission only if the

obligated parent could produce proof of support and could

demonstrate that the children so supported were " "not then and

[were] not likely thereafter to become public charges.' " Id. at

375, 98 S.Ct. at 675. The statute voided marriages contracted in

any jurisdiction without the required court order and subjected

violators to criminal punishment. The Supreme Court concluded that

these statutes were impermissible direct restraints on the freedom

to marry. Id. at 387, 390-91, 98 S.Ct. at 681, 683-84; Loving,

388 U.S. at 12, 87 S.Ct. at 1824.

In holding that the statute in Zablocki violated the Due

Process Clause, the Court noted that

[s]ome of those in the affected class ... will never be able
to obtain the necessary court order.... These persons are
absolutely prevented from getting married. Many others, able
in theory to satisfy the statute's requirements, will be
sufficiently burdened by having to do so that they will in
effect be coerced into forgoing their right to marry.

Id. at 387, 98 S.Ct. at 681.

In contrast to its ruling in Zablocki, the Court in the same

term upheld a Social Security provision that terminated benefits to

a secondary beneficiary if he or she married a person ineligible

for Social Security benefits. Califano v. Jobst, 434 U.S. 47, 98

S.Ct. 95, 54 L.Ed.2d 228 (1977). As the Court explained in

Zablocki,

[t]he directness and substantiality of the interference with
 the freedom to marry distinguish the instant case from ...
[Jobst ]. The Social Security provisions placed no direct
legal obstacle in the path of persons desiring to get married,
and ... there was no evidence that the laws significantly
discouraged, let alone made "practically impossible," any
marriages.

Zablocki, 434 U.S. at 387 n. 12, 98 S.Ct. at 681 n. 12 (citation

omitted).

We conclude that the Warner Robins anti-nepotism policy does

not "directly and substantially" interfere with the right to marry.

The policy does not create a direct legal obstacle that would

prevent absolutely a class of people from marrying. While the

policy may place increased economic burdens on certain city

employees who wish to marry one another, the policy does not forbid

them from marrying. See Jobst, 434 U.S. at 58, 98 S.Ct. at 101

(upholding a Social Security provision despite the fact that it

"may have an impact on a secondary beneficiary's desire to marry,

and may make some suitors less welcome than others"). The true

intent and direct effect of the policy is to ensure that no city

employee will occupy a supervisory position vis-a-vis one of his or

her relatives. See Keckeisen v. Independent School District 612,

509 F.2d 1062, 1065 (8th Cir.) (distinguishing an anti-nepotism

statute from the anti-miscegenation law in Loving by reasoning that

the former "does not deny to people the right to marry; it only

prohibits the employment of married couples in

administrator-teacher situations"), cert. denied, 423 U.S. 833, 96

S.Ct. 57, 46 L.Ed.2d 51 (1975). Any increased economic burden

created by the anti-nepotism policy is no more than an incidental

effect of a policy aimed at maintaining the operational efficiency

of Warner Robins' governmental departments, not a direct attempt to
control the marital decisions of city employees. Cf. Jobst, 434

U.S. at 54 n. 11, 98 S.Ct. at 100 n. 11 ("Congress adopted this

rule in the course of constructing a complex social welfare system

that necessarily deals with the intimacies of family life. This is

not a case in which government seeks to foist orthodoxy on the

unwilling by banning, or criminally prosecuting nonconforming

marriages.").

Moreover, individual instances of hardship notwithstanding,

the anti-nepotism policy at issue here does not make marriage "
"practically impossible' " for a particular class of persons.

Although Parks and Mathern have postponed their wedding for over

four years, pending the outcome of this case, they have produced no

evidence of other couples similarly deterred by the policy, nor do

we believe that ordinarily such will be the case. As the Supreme

Court noted in Jobst, a statute "is not rendered invalid simply

because some persons who might otherwise have married were deterred

by the rule or because some who did marry were burdened thereby."

Id. at 54, 98 S.Ct. at 99.3

3
See also Lyng v. International Union, United Auto.,
Aerospace and Agric. Implement Workers, 485 U.S. 360, 365-66 & n.
3, 108 S.Ct. 1184, 1189 & n. 3, 99 L.Ed.2d 380 (1988) (holding
that a statute did not " " "directly and substantially" interfere
with family living arrangements' " despite district court's
finding that the wife and children of one striking worker left
his household after he was denied food stamps and that the couple
subsequently divorced (quoting Lyng v. Castillo, 477 U.S. 635,
637, 106 S.Ct. 2727, 2729, 91 L.Ed.2d 527 (1986) (quoting
Zablocki, 434 U.S. at 386-87 & n. 12, 98 S.Ct. at 681 & n. 12)));
Bowen v. Gilliard, 483 U.S. 587, 601-02, 107 S.Ct. 3008, 3017, 97
L.Ed.2d 485 (1987) ("That some families may decide to modify
their living arrangements in order to avoid the effect of the
amendment, does not transform the amendment into an act whose
design and direct effect are to "intrud[e] on choices concerning
family living arrangements.' " (quoting Moore v. East Cleveland,
431 U.S. 494, 499, 97 S.Ct. 1932, 1936, 52 L.Ed.2d 531 (1977)
 Because the Warner Robins policy does not directly and

substantially interfere with the fundamental right to marry, we

subject the policy to rational basis scrutiny. Id. at 53-54, 98

S.Ct. at 99.4 Accordingly, the statute will not violate the Due

Process Clause if it is rationally related to a legitimate

government interest. Warner Robins has advanced several such

interests: avoiding conflicts of interest between work-related and

family-related obligations; reducing favoritism or even the

appearance of favoritism; preventing family conflicts from

affecting the workplace; and, by limiting inter-office dating,

decreasing the likelihood of sexual harassment in the workplace.

A rule that would prevent supervisory employees from having to

exercise their discretionary power to hire, assign, promote,

discipline or fire their relatives is rationally related to each of

(alteration in original))); Castillo, 477 U.S. at 635, 106 S.Ct.
at 2729 (finding no direct and substantial interference with
family living arrangements despite the fact that "the loss or
reduction of [food stamp] benefits [as a result of a recipient's
decision to live in the same household as his family] will impose
a severe hardship on a needy family, and may be especially
harmful to the affected young children for whom an adequate diet
is essential").
4
Following the Zablocki rule, at least two other circuits
and two federal district courts have held that anti-nepotism laws
do not trigger strict scrutiny. Parsons v. County of Del Norte,
728 F.2d 1234, 1237 (9th Cir.) (per curiam), cert. denied, 469
U.S. 846, 105 S.Ct. 158, 83 L.Ed.2d 95 (1984); Cutts v. Fowler,
692 F.2d 138, 141 (D.C.Cir.1982); Sebetic v. Hagerty, 640
F.Supp. 1274, 1277-78 (E.D.Wis.1986), aff'd sub nom. Heyden v.
Schoenfeld, 819 F.2d 1144 (7th Cir.), cert. denied, 484 U.S. 899,
108 S.Ct. 235, 98 L.Ed.2d 193 (1987); Southwestern Community
Action Council, Inc. v. Community Servs. Admin., 462 F.Supp. 289,
297-98 (S.D.W.Va.1978); cf. Sioux City Police Officers' Assoc.
v. City of Sioux City, 495 N.W.2d 687, 696 (Iowa 1993) (citing
Zablocki in upholding city's anti-nepotism statute against
substantive due process challenge and listing other state courts
that have found anti-nepotism policies constitutional).
these practical, utilitarian goals. See Parsons v. County of Del

Norte, 728 F.2d 1234, 1237 (9th Cir.) (per curiam) (upholding under

rational basis scrutiny an anti-nepotism statute as a means of

avoiding conflicts of interest and favoritism), cert. denied, 469

U.S. 846, 105 S.Ct. 158, 83 L.Ed.2d 95 (1984); Cutts v. Fowler,

692 F.2d 138, 141 (D.C.Cir.1982) (same). Therefore, we hold that

the anti-nepotism policy adopted by Warner Robins is a reasonable

attempt to achieve legitimate government interests; as such, it is

valid under the Due Process Clause.

B. First Amendment Right of Intimate Association

Parks contends that the Warner Robins policy violates the

First Amendment by making her continued employment contingent on

the nonassertion of her right to marry. The First Amendment

contains no explicit right of association. Nonetheless, the

Supreme Court "ha[s] long understood as implicit in the right to

engage in activities protected by the First Amendment a

corresponding right to associate with others in pursuit of a wide

variety of political, social, economic, educational, religious, and

cultural ends." Roberts v. United States Jaycees, 468 U.S. 609,

622, 104 S.Ct. 3244, 3252, 82 L.Ed.2d 462 (1984).

Included in this First Amendment right of association is the

right to enter into certain intimate or private relationships, such

as family relationships. See id. at 619, 104 S.Ct. at 3250 (naming

marriage as an example of constitutionally protected intimate

association). This is true even though the primary purpose of such

intimate associations may not be expressive. See Board of

Directors of Rotary Int'l v. Rotary Club, 481 U.S. 537, 545-50, 107
S.Ct. 1940, 1945-48, 95 L.Ed.2d 474 (1987) ("We have emphasized

that the First Amendment protects those relationships, including

family relationships, that presuppose "deep attachments and

commitments to the necessarily few other individuals with whom one

shares not only a special community of thoughts, experiences, and

beliefs but also distinctively personal aspects of one's life.' "

(quoting Roberts, 468 U.S. at 619-20, 104 S.Ct. at 3250));

Cummings v. DeKalb County, 24 F.3d 1349, 1354 (11th Cir.1994)

(recognizing that intimate association is protected by the First

Amendment); Wilson v. Taylor, 733 F.2d 1539, 1544 (11th Cir.1984)

(holding that dating is a type of association protected by the

First Amendment).

Although the right to marry enjoys independent protection

under both the First Amendment and the Due Process Clause, the

Supreme Court has held that the same analysis applies in each

context. In Lyng v. International Union, United Auto., Aerospace

and Agric. Implement Workers, 485 U.S. 360, 108 S.Ct. 1184, 99

L.Ed.2d 380 (1988), the Court extended the reasoning in Zablocki to

apply to claims involving First Amendment associational rights.

Id. at 364-67, 108 S.Ct. at 1189-90. The Court examined a Food

Stamp Act provision that denied increased food stamp benefits to

families of striking workers. The Court held that the food stamp

statute did not infringe upon the striking workers' right to

associate with their families because it did not " "order' any

individuals not to dine together; nor [did] it in any way "

"directly and substantially" interfere with family living

arrangements.' " International Union, 485 U.S. at 365-66, 108
S.Ct. at 1189 (quoting Lyng v. Castillo, 477 U.S. 635, 638, 106

S.Ct. 2727, 2729, 91 L.Ed.2d 527 (1986) (quoting Zablocki, 434 U.S.

at 387, 98 S.Ct. at 681)).

The Warner Robins anti-nepotism policy does not "order"

individuals not to marry, nor does it "directly and substantially"

interfere with the right to marry. See supra Part II.A.

Admittedly, the policy presents a harder case than did the food

stamp provision at issue in International Union; individuals

forced by the policy to leave their jobs may incur economic losses

greater than the temporary denial of food stamp benefits. But see

supra note 3. Because the anti-nepotism policy does not prevent

the less-senior spouse from working in another department or

outside the Warner Robins municipal government, however, it is

unlikely that the policy will actually prevent affected couples

from marrying. In this respect, Warner Robins' anti-nepotism

policy is similar to the food stamp provision in International

Union, for which the Court concluded: "Even if isolated instances

can be found in which a striking individual may have left the other

members of the household in order to increase their allotment of

food stamps, "in the overwhelming majority of cases [the statute]

probably has no effect at all.' " International Union, 485 U.S. at

365, 108 S.Ct. at 1189 (quoting Castillo, 477 U.S. at 638, 106

S.Ct. at 2729).

In International Union, the Court held that the petitioners'

associational rights claim was "foreclosed" by its inability to

satisfy the direct and substantial interference standard first used

in Zablocki and followed in Castillo. Id. at 364, 108 S.Ct. at
1189. Parks has similarly failed to show that the Warner Robins

anti-nepotism statute directly and substantially interferes with

her right to marry. Consequently, we hold that the policy does not

infringe upon her First Amendment right of intimate association.

C. Equal Protection Clause: Gender Discrimination

Parks' final argument on appeal is that the Warner Robins

policy will result in a disparate impact on women because the city

employs a greater number of men as supervisors. A gender-based

classification violates the Equal Protection Clause of the

Fourteenth Amendment if the classification is not substantially

related to the achievement of important governmental objectives.

Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256,

273, 99 S.Ct. 2282, 2293, 60 L.Ed.2d 870 (1979); Craig v. Boren,

429 U.S. 190, 197, 97 S.Ct. 451, 457, 50 L.Ed.2d 397 (1976).

Additionally, proof of discriminatory intent or purpose is a

necessary prerequisite to any Equal Protection Clause claim.

Hernandez v. New York, 500 U.S. 352, 359-60, 111 S.Ct. 1859, 1866,

114 L.Ed.2d 395 (1991) ("A court addressing this issue must keep in

mind the fundamental principle that "official action will not be

held unconstitutional solely because it results in a racially

disproportionate impact.... Proof of racially discriminatory

intent or purpose is required to show a violation of the Equal

Protection Clause.' " (omission in original) (quoting Arlington

Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 264-265,

97 S.Ct. 555, 563, 50 L.Ed.2d 450 (1977))); accord Washington v.

Davis, 426 U.S. 229, 239, 96 S.Ct. 2040, 2047, 48 L.Ed.2d 597

(1976); Elston v. Talladega County Bd. of Educ., 997 F.2d 1394,
1406 (11th Cir.1993). This requirement applies with equal force to

a case involving alleged gender discrimination. Personnel Adm'r v.

Feeney, 442 U.S. 256, 274, 99 S.Ct. 2282, 2293, 60 L.Ed.2d 870

(1979) ("When a statute gender-neutral on its face is challenged on

the ground that its effects upon women are disproportionately

adverse, a twofold inquiry is thus appropriate.... [T]he second

question is whether the adverse effect reflects invidious

gender-based discrimination."). Possible indicia of discriminatory

intent include a clear pattern of disparate impact, unexplainable

on grounds other than race; the historical background of the

challenged decision or the specific events leading up to the

decision; procedural or substantive departures from the norm; and

the legislative or administrative history of the challenged

statute. Village of Arlington Heights v. Metropolitan Housing Dev.

Corp., 429 U.S. 252, 266-68, 97 S.Ct. 555, 564-65, 50 L.Ed.2d 450

(1977).

Parks' disparate impact claim relies upon her assertion that

eighty-four percent of Warner Robins' supervisory employees are

men. Consequently, she argues, a disproportionate number of

employees who are forced to transfer to another department or to

leave the city's employ will be women. As the Supreme Court's

holding in Personnel Adm'r v. Feeney indicates, such a showing is

insufficient to prove discriminatory intent. In Feeney, the Court

upheld a state law that created an absolute hiring preference for

military veterans applying for state jobs. Feeney, 442 U.S. at

275, 99 S.Ct. at 2294. At the time that the litigation commenced,

over ninety-eight percent of the veterans in Massachusetts were
male, and over one-fourth of the Massachusetts population were

veterans. Id. at 270, 99 S.Ct. at 2291. The Court described the

impact of the Massachusetts plan on women as "severe." Id. at 271,

99 S.Ct. at 2292.

The Feeney Court rejected the plaintiff-appellee's argument

that because a disparate impact against women was the obvious

consequence of the statute's enactment, the Massachusetts

legislature must have intended to discriminate against women. The

Court held that " "[d]iscriminatory purpose' ... implies more than

intent as volition or intent as awareness of consequences. It

implies that the decisionmaker ... selected or reaffirmed a

particular course of action at least in part "because of,' not

merely "in spite of,' its adverse effects upon an identifiable

group." Id. at 279, 99 S.Ct. at 2296 (citation and footnote

omitted). Assuming arguendo that Parks has demonstrated disparate

impact, her equal protection claim must still fail for lack of a

showing of discriminatory intent. See id. at 274, 99 S.Ct. at 2293

("[I]mpact provides an "important starting point,' but purposeful

discrimination is "the condition that offends the Constitution.' "

(quoting Arlington Heights, 429 U.S. at 266, 97 S.Ct. at 564, and

Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 16, 91

S.Ct. 1267, 1276, 28 L.Ed.2d 554 (1971))); Arlington Heights, 429

U.S. at 265, 97 S.Ct. at 563 (" "Disproportionate impact is not

irrelevant, but it is not the sole touchstone of an invidious

racial discrimination.' " (quoting Davis, 426 U.S. at 242, 96

S.Ct. at 2049)).

Parks' allegations cite none of the other traditional indicia
of discriminatory intent listed by the Court in Arlington Heights.

She has not alleged facts surrounding the city's decision to apply

the policy to her that could indicate discriminatory intent, nor

has she identified any such intent in the legislative history of

the statute. Her situation is not the result of any procedural or

substantive departures from the norm that would reveal

discriminatory intent. In her brief, Parks lists four city

employees as examples of individuals who remain on the city payroll

despite their alleged violation of the anti-nepotism policy. Since

three of the four people who have allegedly retained their jobs in

violation of the policy are female, however, it cannot be argued

that the city has applied the policy unevenly so as to disadvantage

women. Cf. Yick Wo v. Hopkins, 118 U.S. 356, 359, 6 S.Ct. 1064,

1066, 30 L.Ed. 220 (1886) (finding that a city board of supervisors

violated the Equal Protection Clause when it administered a

facially-neutral city ordinance so as to deny certain business

permits to all Chinese-American petitioners while granting similar

permits to all but one Caucasian petitioner).

As the Court previously has observed, "the Fourteenth

Amendment guarantees equal laws, not equal results." Feeney, 442

U.S. at 273, 99 S.Ct. at 2293. Parks has offered to demonstrate

that more women than men will be transferred or fired as a result

of Warner Robins' anti-nepotism policy. Such an allegation falls

short of the showing of discriminatory purpose or intent necessary

to support a disparate impact claim under the Equal Protection

Clause. Therefore, we hold that the policy does not deny women

equal protection of the laws as guaranteed by the Fourteenth
Amendment.

III. CONCLUSION

Parks challenges the district court's grant of summary

judgment, in which the court upheld the constitutionality of Warner

Robins' anti-nepotism policy. She contends that the policy

impermissibly infringes her fundamental right to marry protected by

the Fourteenth Amendment, her right of intimate association

implicit in the First Amendment, and her right to equal protection

of the laws under the Fourteenth Amendment. Because the Warner

Robins policy is not a direct and substantial interference with the

right to marry, and because Parks has failed to allege facts

sufficient to support a finding that the policy conceals a

discriminatory intent, we hold that the policy is valid under the

First and Fourteenth Amendments. We AFFIRM.