*1 MOORE, Watson, Kenneth D. Micharl Plaintiffs-Appellees, FIGHTERS ASSOCIA FIRE DALLAS TION; Tony Speck; McKin L. John W. v. Jr.; ney; Jerpi, L. Harold Michael DALLAS, TX., of; Miller, CITY Dodd Danny McKenna; McGehee; Joseph E. Chief, Defendants-Appellants. Beck; Julian; McKay, Curtis P. Louie Collins; Jr.; Wachsman; Richard Hal No. 96-11138. Willeford; Davault, A. Haskell Michael Davault, E. Plain on of Michael behalf Appeals, United States Court of tiffs-Appellees, Fifth Circuit. Aug. of; Miller, TX., Dodd
DALLAS CITY
Chief, Defendants-Appellants. CANTU, Jr.; Tommy Crawford; A.
Jesus Davis; Richard Earl Gam
Paul Edward Mulvany;
brell; Stephen Ronnie Louis Bryant Roe; Truex; E. Till Glenn
W. Sammy
ery; Tanksley; Thomas R. Don Jimmy
Sline; Johnny Rudder; L. L. Pat Davis; Gregory
ton; A. J. Cour Robert
son; Ray Reed; Campbell; F. Donnie G. Brown; Johnny Bates; Roy D. K.
Gerald Bailey; Ferguson; Ken Thomas E.
G.
Taylor; Saunders, Jr.; Charles Richard Julian; Hughes; Michael J.
Paul W. Corder; Timothy Seymore; J.
Steven Sr., Harris; Keck, E.
Kenneth John
Plaintiffs-Appellees,
DALLAS, TX., of; Miller, Dodd CITY
Chief, Defendants-Appellants. Lamar; SKOOG;
Paul A. James B. John Allen; Colwick;
R. R. D. Kurtis John
Shook; Kinney; David D. Samuel C.
Brodner; Kyle Cowden; Russell T. G.
Jones; Jones; Hall; R. Ronald W. James Sutton; Pearson;
John D. C. James Byford; George Tomasovic;
James E. Wise; Rogers; B. Brent K. John
Steven Nimmo; Jordan;
P. R. James A. Arthur
Sullivan, Jr.; Gary Baczkowski; P. Dickerson; Graves;
Glenn D. J. Wallace Martin; Randy Myers;
Jack M. Rob- S. McCrimmen; Mullins;
ert R. D. Allen Mask; Mainz, Parke E. Plaintiffs-
David
Appellees,
DALLAS, TX., of; Miller, CITY Dodd
Chief, Defendants-Appellants. *2 Rodriguez, Mark Gillespie,
Hal K. Dale Dallas, Watsry, Rozen, Gillespie,, Tanner & TX, Plaintiffs-Appellees. for Lindsay, City Atty., Janice Smith ASam Islas, General, Moss, J. Lizbeth Atty. Asst. Dallas, TX, Defendants-Appellants. POLITZ, Judge, and Before SMITH, Circuit HIGGINBOTHAM Judges.
POLITZ, Judge: an adverse appeals of Dallas striking down as viola- statutory protec- of constitutional and tive gender-conscious race and tions City’s affirmative action under made the denial plan. appeals also regarding the motion black fire- appointment of a validity of an deputy chief. For position of fighter to the part assigned, affirm reasons part. reverse and render chief, Miller, acting in BACKGROUND Dodd his official ca- (1) pacity, violated: the fourteenth amend- (DFD) Department Dallas Fire has (2) Constitution,1 ment of the United States structure, beginning with following rank equal rights clause of the Texas Constitu- (1) entry position: level fire and rescue (3) tion, Rights Title VII of the Civil Act of lieutenant, officer, driver-engineer, *3 (4) (6) (5) chief, chief, seq., §§ 42 U.S.C. 2000e et and captain, deputy battalion (8) (7) chief, and chief. Positions article 5221k of the assistant Texas Civil Statutes.2 department. only are from within the filled granted summary judg- The district court appoints who city manager the chief in plaintiffs in challenging ment favor of the deputy appoints turn the assistant and chiefs. promotions, finding out-of-rank violations of below, firefighters For battalion chief and statutorily protected their constitutional and eligible promotion take a examina- become rights. City’s The court denied the motions highest next tion for advancement summary judgment, plain- for and denied the grade. in rank after a certain amount of time tiffs’ for judgment motion as to the placed are passing Those the examination on roster, deputy appointment. chief The court subse- eligibility an listed in accordance with occurring quently their scores. Vacancies thereafter consolidating an order entered by promoting from are filled individuals yet action that had be resolved. Thereaf- list, top eligibility unless there is a agreed ter the court entered an order re- countervailing unsatisfactory as reason such garding judgment remedies and entered final performance, disciplinary problems, or non- City timely the consolidated action. The paramedic status. appealed. City adopted In a 1988 the Council five- DFD,
year
affirmative action
for the
ANALYSIS
years in 1992 with a
extending same for five
In
few modifications.
an effort to increase
1.
Standard Review
minority
representation the DFD
and female
black,
promoted
hispanic, and female fire-
entry
We review a district court’s
male,
fighters
nonminority firefight-
ahead of
novo,
applying
de
higher
ers who had scored
on the
by
same standards
court.3
used
the district
Between 1991 and 1995 these
examinations.
Summary judgment
only proper
if there is
promotions
by
occasioned four lawsuits filed
genuine
any
no
issue as to
material fact and
Fighters
the Dallas Fire
Association on be-
moving party
is entitled to
as a
half of white
American male fire-
and Native
matter of law.4
fighters
passed
over
who were
by
motions. These actions were consolidated
2. The Out-of-Rank Promotions5
the district court.
groups,
of four
consist
three
A. Race-Conscious Promotions
impermissi-
DFD
which contend that the
protection
To
an equal
survive
chal
bly
promotions
denied them
to the ranks of
amendment,
lenge under the fourteenth
a
lieutenant,
driver-engineer,
captain
re-
racial
narrowly
classification must be tailored
spectively. Additionally,
group
a fourth
compelling governmental
serve a
plaintiffs challenges
appoint-
interest.6
the fire chiefs
applies
That
deputy
ment of a black male to
chief in 1990.
standard
to classifications in
remedial,
City
claim that the
and the fire
tended to be
well as
brought
§
validity
1.
under 42 U.S.C.
5.
This claim is
We address
of the out-of-rank
and not the affirmative action
§§
2. Now codified as Tex. Labor Code
21.001 et
aas whole.
seq.
Co.,
Richmond v. J.A.
Croson
U.S.
Corp.,
3. Orleans
School Bd. v. Asbestos
Parish
(5th Cir.1997).
based discharge. layoff nonminorities as would compelling interest body has ernmental evidence of past light dis- of the minimal record present effects In remedying the however, DFD, per- re- we analyzing race conscious discrimination crimination.8 essentially guided are is not must conclude that measures force medial (1) necessity the relief interfering legitimate justified four factors: with remedies; flex- efficacy of alternative warranting promotion expectations of those relief; relation- ibility and duration upon exami- performance based their goals to the relevant numerical ship of the nations.12 market; on impact of the relief labor remedy ways to the ef- There are other parties.9 rights of third City con- past discrimination. fects *4 tends, however, measures alternative that be that on the record conclude We DFD, validating as employed by the such race-based, pro the out-of-rank fore us minorities, exams, elim- recruiting equal herein violate the at issue motions seniority points to inating the of addition fourteenth amendm protection clause scores, initiating a tu- promotion exam of only evidence discrimination ent.10 unsuccessful, as toring program, been have consent is the 1976 in the record contained continuing imbalance the the evidenced City the and the United decree between upper ranks of the DFD. That minorities Justice, precipitated of Department States underrepresented not to be does continue City engaged finding that the by a DOJ reme- necessarily mean that the alternative VII, with Title practices inconsistent ineffective, merely that but dies have been underrepre- showing an analysis statistical operate not as they apparently quickly do in the to which ranks sentation of minorities promotions.13 out-of-rank were made. challenged promotions the history egre proof of a of of record is devoid resis or pervasive discrimination
gious and
B.
Promotions.
Gender-Conscious
that has warrant
action
tance to affirmative
exacting intermedi
Applying the less
cases.11
measures
other
ed more serious
gender-
applicable
scrutiny analysis
tó
pro-
ate
the out-of-rank
that
are aware
We
employment practices
in Sheet
with that found
7.
Id.
International Brotherhood
Metal Workers and
of
States,
324,
U.S.
97 S.Ct.
431
Int’l Ass'n v.
Teamsters v. United
Metal Workers’
8. Local 28
Sheet
of
3019,
(1977),
421,
1843,
E.E.O.C.,
"a
where
S.Ct.
92
there
478 U.S.
106
minority applicants and delib-
pattern
lying
L.Ed.2d 344
of
to
erately losing
applications.").
their
Paradise,
149, 107
480 U.S.
9. United States
plu
(4-justice
L.Ed.2d 203
S.Ct.
94
Fighters Ass'n.
See Black Fire
12.
City
Fighters
rality);
Ass’n Dallas
Fire
Black
of
(5th
1994).
Dallas, 19
992
Cir.
F.3d
pro-
City points
features
to several
13.
weigh
plan
in favor
its constitu-
motional
that
equal rights
a violation of
We also
the
find
(1) only qualified
are
e.g.,
individuals
tionality,
con
which is
the Texas constitution
clause of
banding
test
promoted;
DFD uses
conformity
federal constitu
with the
strued in
of the out-
the beneficiaries
to ensure
scores
that
Hospital,
S.W.2d 841
801
tion. Rose Doctors
equally qualified
promotions
are
of-rank
(Tex. 1990).
over; (3)
action
they pass
the affirmative
whom
promotions
lasts
aré made
under which
Paradise,
at
Compare
480 U.S.
pro-
years;
only
the affirmative action
five
systematic,
"pervasive,
and obsti-
(finding
1053
cease when
manifest
to a
will
motions
rank
discriminatory
“created a
conduct" which
nate
eliminated;
(5) only
imbalance in
rank
justification
firm
profound
and a
need
may
promotions
be
rank
50% annual
by the District
'relief ordered
race-conscious
plan.
Al-
under the affirmative
made
Workers,
Court”);
at
478 U.S.
Sheet Metal
City’s position,
support the
though those factors
remedy
(upholding race-based
S.Ct. 3019
enough
minimal
they
are
to overcome
egregious
of discrimina-
record
where there was
is suffi-
discrimination that
evidence of
record
practices
at
aimed
resistance
tion and official
intrusive
support
the use of less
discrimination);
Fight-
cient
ending
see also
Fire
Black
Ass'n,
(contrasting
alternative remedies.
the DFD’s
at 996
ers
19 F.3d
action,14
by my
we nonetheless
recommended
based affirmative
executive staff.
addition,
appointment
unconstitu-
gender-based
Bailey
find the
of Chief
contains,
pursuant
record
us
was made
to the
tional. The
before
Dallas
above, little evidence of racial discrimi-
Affirmative Action Plan.
noted
nation;
gen-
it
even less evidence of
contains
contends that Chief Miller’s state-
showing
Without a
der discrimination.
that,
Bailey,
ment reflects
in appointing
he
DFD,
against women in the
discrimination
or
among many,
considered race as one factor
industry
general,
we cannot
at least
making
appointment permissible
under
promotions are related substan-
find that the
Bailey
Johnson. The
concede that
tially
important governmental interest.
to an
qualified
but insist that the reference to
the affirmative action
and the failure of
Title
VII
C.
explain
Bailey compared
Chief Miller to
how
Having
down the out-of-rank
struck
candidates,
to other
that
established
unconstitutional, we
motions as
need not ad-
solely upon
Miller based his final decision
validity under Title
dress their
VII
Texas
race. The
also contend that
article 5221k.
promotional goals in the affirmative action
proportion
percentage
are out of
.
Appointment
candidates,
demonstrating
available
appointment
imper-
was made to fulfill
City contends that the district
*5
The
and, thus,
goals
unnecessarily
missible
tram-
failing
grant
court
in
to
its motion for
erred
n
summary
ground
rights
meled the
of
judgment on the
that Chief
nonminorities.
appointment
Bailey,
Miller’s
of Robert
plaintiffs’ position
any
The
employ-
is that
male,
deputy
black
to
chief violated neither
utilizing
ment decision
the affirmative action
Title VII nor article 5221k.15 To determine
plan
illegal.
is
accept
We decline to
that
validity
the appointment
the
of
we must ex
contention, particularly
light
of the fact
justified by
it
amine whether was
a manifest
validity
that the
the affirmative action
traditionally segregated job
imbalance
question
persuaded
is not in
herein. We are
category
appointment
whether the
un
and
beyond peradventure that
the mere refer-
rights
necessarily trammeled the
of nonmi-
ence to the affirmative action
does not
norities or created an absolute bar to their
create a
concerning
fact issue
whether Chief
.
plaintiffs
dispute
do not
advancement.16
impermissible
Miller had an
motive in
that
a manifest
imbalance in the
there is
moting Bailey.
relevant
deputy
rank of
chief and
therefore limit
judgment evidence reflects that Chief Miller
prong
our
discussion
second
Bailey
upon substantially
chose
based
more
Johnson test.
just
race,
than
opponents
his
and the
have
only summary judgment
spe-
evidence
produce any acceptable
failed to
material
Bailey appointment
cific to
the
the
affidavit
contrary.17
evidence to the
We therefore
of Chief
in which he states:
Miller
appointment
conclude that the
did not unnec-
1990,1
Bailey Depu-
essarily
selected Robert
rights
trammel the
of nonminorities
ty
I
capable
pose
Chief because believed he was
an absolute
to their
bar
advance-
job
performing
responsibilities
the
Accordingly,
appointment
ment.
Chief,
position Deputy
and he was
consistent with Title
5221k
VII and article
University
Mississippi
Agency,
14. See
Transportation
Women v. Ho
16. Johnson v.
480 U.S.
718,
3331,
gan,
(1987).
458 U.S.
102 S.Ct.
73 L.Ed.2d
contend that a triable issue of
15. Article 5221k
that
it is intended
states
fact exists because Chief Miller’s affidavit is
goals
achieve the
embodied in Title VII. See also
City’s response
inconsistent with the
to an in-
Redmon,
(Tex.
Corp.
Chevron
ing the
ment. SMITH, Judge, Circuit E.
JERRY part:
dissenting in opinion insofar join panel Although I America, UNITED STATES judgment holding unconsti- as it affirms Plaintiff-Appellee, “skip Department’s Fire Dallas tutional the to advance practice used promotion” I would its affirmative “goals” of HASS; Hass, Richard also Tommie decision the district court’s also affirm Buddy, Defendants- known Deputy sought the plaintiffs who allow those Appellants. (“the Deputy plaintiffs”) position Chief No. 97-40778. claims. I there- to trial on their proceed part. dissent respectfully fore Appeals, Court of United States Fifth Circuit. vary from *6 important respect. plaintiffs in an other Aug. was the other promotion system for Sept. Rehearing Denied mathematical, so it is known that strictly solely basis of promoted on the persons were hand, Chief, Deputy on the other
race. It is by Dodd Miller. appointed
was factors in addi-
possible that he considered promote. deciding whom
tion to race fact genuine issue of material
There is a may He motivations.
concerning Miller’s “skip pro- unconstitutional
have followed deciding quali- practice by who
motion” qualified job, promoting the for the then
fied candidate, If he did if one existed.
minority
so, just illegal as were promotions.
the other affidavit, that he con- Miller swears
In his never than race. He factors other
sidered
states, however, that his decision was “goals”
ultimately controlled plan.1 The existence
affirmative gener- its with generally-enforced is- genuine creates a “goals,”
ally-applicable utives,” hiring Chiefs. such "goals” applied across-the-board decisions, including regarding "Fire Exec-