Grant Danskine v. Miami Dade Fire Department

essentially that there is no constitutional MARCUS, and Before CARNES Circuit violation on record. this Because the dis- HAND*, Judges, Judge. District

trict court did not err in making that determination, we affirm. MARCUS, Judge: Circuit appeal, again In this address once we I. legality County of the Miami-Dade Fire affirmative action This case arises out of an affirmative Twice before this Court has addressed the plan voluntarily by instituted plan, litigation primarily challenging County in plan 1984.1 The was previously preferences awarded on the basis of race subject litigation of extensive before origin. national aspects Those and the Court U.S. District Court for plan long since terminated. been 1986, the Southern District of Florida. In plan give preferential continues to Alan Peightal, applicant position women, however, treatment and it is entry-level firefighter, brought an action aspect which we consider Department alleging various today. types pursuant of unlawful discrimination 1988, County’s plan. In January applied are males who unsuc- court, holding the district after a bench cessfully entry-level for firefighter posi- trial, concluded that the with tions Fire Equal did not violate Title orVII They between 1994 and 1997. contend Protection Clause of the U.S. Constitution. County’s finding We affirmed the district court’s firefighters for female violates Title VII claim, respect to the Title VII but Equal par- and the Protection Clause. Equal remanded the Protection claim for ticular, assert in light reconsideration of a then-recent “long-term” hiring goal of 36% women is decision, Supreme City Court Richmond unreasonably high, upon because relies Co., 469, v. J.A. Croson 488 U.S. population figures to determine S.Ct. (1989). appropriate number of women fire- 102 L.Ed.2d 854 See fighters, actuality (they say) Metropolitan when more Dade 940 F.2d (11th Cir.1991) I). suggests refined data that women are sim- 1394 (Peightal * Hand, Judge following undisputed, Honorable W.B. U.S. District 1. The facts are unless Alabama, sitting by the Southern District of otherwise noted. designation. court,

Upon return to the district entry-level firefighter hires reassigned to a judge. case different to be women. target That 36% was based subsequently The district court conducted on 1980 census data showed that the January second bench trial population of Dade was 52% fe- and concluded that the affirmative action male; the took County that 52% plan satisfied the scrutiny test strict man- 30%, then reduced it by in order to take by dated Croson. F.Supp. 1454 into account the fact that not all women (S.D.Fla.1993). Although the focus of the would be in becoming, interested or were trial was race and origin national discrimi- qualified become, to firefighters. nation, the district court made several Department’s The Fire hiring process in findings respect with to the 1994-97 had several components. The against women. step first anwas initial screening to ensure subsequently filed an appeal qualifications basic high such as school di- challenging the district court’s Equal Pro- ploma, age, minimum and ..driver’s license. tection and strict scrutiny analysis as it possessed Individuals who requisite applied Hispanics; Peightal did not basic qualifications permitted were to take challenge any of the findings court’s 1994, a written exam. In 5807 applicants respect to women, African-Americans and passed the written test. Due to large appeal however. We denied the and af- number, Department conducted ran- firmed the district court. Peightal v. lottery dom in order to determine which Metropolitan Dade 26 F.3d 1545 applicants would advance to the second (11th Cir.1994) II). {Peightal Meanwhile, phase of the process. selection All female 1990, by approximately Department applicants who passed exam, the written had satisfied its hiring goals with respect however, were withdrawn lottery from the Hispanics. blacks and Accordingly, af- and automatically advanced to the next firmative action hiring of African-Ameri- stage of process. the selection A total of Hispanics abolished, cans and was but the 1050 men and 814 women advanced to the Department give ap- continued second stage in 1994. plicants preferential treatment through a revised plan. affirmative action Applicants who were selected to advance phase second required were to take respect women,

With this much is (“PAT”). physical ability test The PAT The Department clear: Fire discriminated was rated on pass/fail Applicants basis. by excluding them from passed who the PAT were required then firefighting positions until the late 1970s or submit to an oral Applicants interview. early result, 1980s. As a who were during successful the oral inter- workforce was 1% fe- phase view placed were on an eligibility male while the population of Dade list rank Department’s per- order. was 52% Department female. The sonnel permitted rules hiring in recruiting any- was unsuccessful from women be- list, where on the history eligibility cause of its out hiring discrimination. Ac- cordingly, rank permissible. order prescribed pref- was Once the hiring eligibility erential initial part exhausted, women as list of its was a sec- voluntary affirmative action ond hiring round place. took Individuals County’s ultimate goal, pursuant to the who failed part one, of round including plan, was for physical 36% the ability test, up to the oral stage summary judgment interview were called back and re- its favor. On 23, 1999, July After the second round of the tested. district court denied the hiring process eligibility plaintiffs’ granted another list was motion and the County’s part. created. motion in F.Supp.2d (S.D.Fla.1999). Specifically, the court up- In 15.9% of the validity held the overall of the affirmative position entry-level firefighter were fe- plan, including (implicitly) the lot- applicant pool male. tery system, did fully but resolve the 21.69% female. As a result of the 1994-97 plaintiffs asserting claims of the 13 hiring process, hired 255 testing procedures Depart- utilized (26.5%) candidates, of whom 67 were fe- ment at later stages hiring process male; 206 on candidates were left the eli- unlawfully hiring facilitated the of less list, gibility and including females qualified applicants. Septem- female On to the Subsequent males. 1994-97 recruit- 30, 1999, ber the district court denied the ment, Department’s in- workforce had plaintiffs’ motion for clarification of its ear- from female to creased 8.89% 11.6% fe- ruling, lier and entered an order of final male.2 judgment respect plaintiffs the 50 challenging only validity the overall sixty applied More than males who plan. entry firefighter positions plaintiffs Those are the level between July today.3 1994 and 1997 before us filed this case on 1997, alleging that suffered discrimi- ruling may The district court’s be sum- nation on the basis of sex. There are marized as follows. The court first ex- essentially groups plaintiffs. two One (we plained correctly) think group approximately includes 50 unsuc- Peightal Court’s decisions on I II did applicants applications cessful male whose preclude plaintiffs attacking from rejected lottery stage. were at the A sec- grounds changed circumstances the group ond includes 13 unsuccessful male gender-conscious features of the reject- applications whose were The court then that the determined stages process. ed at later in the subject only scrutiny was to intermediate plaintiffs eventually par- Equal moved for under Protection Clause be- summary tial judgment, seeking ruling gender-based governmental cause discrim- validity intensively on the overall of the affirmative ination .is reviewed less than F.Supp.2d insofar as favored women. race-based discrimination. 59 County responded with a cross-motion at 1256. The court then found that the way 2. The use the rather case the same even if we were to use 13.26% 11.6%, but the former number refers Appellants’ figure. merely percentage entry- of women in firefighter positions, percentage level not the judgment 3. The district court did not enter at overall, Department by of women in the plaintiffs that time on the claims of the 13 Focusing entry- on the number of women in challenged testing procedures. also who (as positions only opposed level to the number eventually summary judg- The court entered whole) Department of women in the as a ment in the favor on those claims. incomplete, Department’s because the affir- Dept., Barbera v. Metro-Dade Fire remedy designed mative action was to amelio- (S.D.Fla.2000). ruling F.Supp.2d 1331 That Department-wide past rate the effects of its today. is not before us event, women. court, like the district we would resolve this position interested and history discrimina- scrutiny.” Id. at sup- survive intermediate was sufficient against women that, at the time 1258. The court reasoned remedy. Id. at port an plaintiffs these first suffered discrimi- explained, “the rec- the court 1256-57. As nation, only Department the Fire was still and the instant case ord in the “clearly well percentage evidence of 8.89% female—a replete with of cases is line alleged capa- females Id. below the number of against women.” past discrimination position ble of and interested specifically observed 1257. The court Moreover, Id. said the firefighter.” Fire excluded women court, women in early by 1997 the up until its workforce from had risen 1983 the De- the Fire workforce 1980s; recently as female. Id. only slightly, 11-13% was 1% partment’s workforce population of Dade while the rejected Appellants’ court The district female; testing Department’s goal argument utilized the De- procedures selection entry-level firefighter hires is 36% female impact upon partment had an adverse unobtainable, and therefore the affirmative women; the efforts and that plan substantially is not related to in unsuccessful to recruit women were eradicating Id. goal the of discrimination. past history of discrimination. light of its Finally, rejected Appel- at 1258. the court See id. concerning that statistics suggestion lants’ in currently working rejected Appellants’ conten- the number of women The court jobs upon protective services Dade reliance the affirmative action population statistics determin- demonstrates longer necessary overly or is scope of its was is no ing the need for and Id. On the basis of these determi- given possibility using the of broad. erroneous (“[G]eneral nations, judg- court entered statistics. Id. the district more refined of law in Defendants’ upon relied to ment as matter population statistics be favor. support gender-based relief when bol- evidence of discrimi-

stered additional nation.”). Nevertheless, pro- the court II. ceeded to examine the affirmative Appellants’ of “refined statis- light dispute proper is no about the There tics,” Appellants asserted took into which standard of review. The district court’s fact that were less summary judgment ruling account the women is reviewed de Glade, firefighter positions City than men in Belle interested novo. See Burton v. of Cir.1999). (11th 1175, in that and also were less 178 F.3d 1186-87 if during Summary judgment proper only “the consistently failed to do as well hiring pro- pleadings, depositions, of answers to inter- physical ability portion file, together rogatories, concluded that and admissions on cess. The district court affidavits, any, if show that there to find that Plaintiffs’ with the even it “were fact correct, genuine any is no issue as to material analysis statistical there was party to a sufficiently dispari- moving and that the is entitled significant and still is a a matter of law.” Fed. judgment of as ty between number 56(c). dispute genu- A factual position entry firefighter level and R.Civ.P. only “if the evidence is such that Plaintiffs’ version of the number of women ine physically qualified job, could return a ver for the [factfinder] reasonable men. party. factors, non-moving dict” for the United assert these Property, Real which they say nothing States v. Four Parcels to do with (11th Cir.1991) 1428, (quot vestiges past 941 F.2d discrimination that 477 Inc., eradicate, Liberty Lobby, v. ing Anderson seeks to eliminated 248, 251-52, 2505, 2510, 242, justification U.S. 106 S.Ct. (1986)).

2511-12, plan favoring 91 L.Ed.2d 202 women. there- 1994, fore ask us to declare that or If non-moving party fails to “make 1997, no later than Department had showing sufficient essential element no lawful basis to discriminate in favor of respect to which she has of her case with females. proof,” then the court must the burden summary judgment moving County responds, enter among other Catrett, Carp. things, party. Celotex U.S. even under “re- 2548, 2552, 317, 323, significant 106 S.Ct. 91 L.Ed.2d fined” data there is still a dis- (1986). Moreover, parity when the non-mov between men and women ing party proof bears the burden of on an can be ascribed to issue, moving party “support lingering need not effects discrimination. similar Specifically, they its motion with affidavits or other contend that in negating opponent’s material claim.” even there remained a sizeable Instead, gap Id. at 106 S.Ct. at 2554. expected between the actual and num- “ moving party simply may Department. ber of women in the ‘show[]’ —that ], point emphasizes out to the district court—that striving is[ also that it is support long history there is an absence of evidence to to illegal overcome dis- (citation crimination, nonmoving party’s case.” Id. and that its is reviewed omitted). In assessing whether the mov- continually Depart- to ensure that burden, ant has met its “the courts should goals ment’s are reasonable.

view the and all factual evidence inferences Equal Protection Clause light

therefrom most favorable to Burton, party provides Fourteenth Amendment opposing the motion.” deny ... any person 178 F.3d at state shall to “[n]o 1187. We review the district jurisdiction summary equal protection within its judgment court’s order accor that, principles. parties agree dance with these familiar of the laws.” The Equal challenge, survive an Protection state-sponsored, gender-based affirmative III. action must withstand intermediate scrutiny. Engineering contend that See Contractors Fla., preferential Metropolitan treatment of women was not Ass’n South Inc. v. (11th justified period during as of the 1994-97 Dade 122 F.3d Cir. 1997); Appellants unsuccessfully sought Mississippi see also Univ. for jobs 718, 724, Department. Appel- Hogan, the Fire Women v. 458 U.S. (1982) lants insist that it should have been clear 73 L.Ed.2d 1090 S.Ct. by point (applying scrutiny gender- that women are inter- less intermediate classification).4 in becoming firefighters, ested and less based Under intermediate Although Appellants determining reference the standard an affirmative action whether up- programs cannot be measured or de- scrutiny, gender preference “a be substantially precision, with scientific we have long as it is related scribed held so objective.” previously recognized principal two important governmental an Contractors, guidelines at 908. that mark the boundaries of Engineering F.3d Contractors, scrutiny evidentiary analy- Engineering explained In we intermediate proceeds: sis. inquiry how First, satisfy important the intermediate scru- attempting “[u]nder test, objective tiny government in- a local dem-

governmental prong of the must test, objec- past ... scrutiny onstrate some discrimination termediate “ women, necessarily ‘redressing] ... discrimination but not dis- tive of ” by unquestion- government ... crimination itself.” against women[ ]’ is Second, sufficiently scrutiny ably “important” one to the intermediate evi- dentiary not to gender-conscious sustain a affirmative review is be directed Therefore, gender-conscious program. mandating toward an analogue, racial “the true test of af- affirmative action is used as a “last resort,” program usually ensuring firmative action is but instead to interest, product “a government’s program the nature of the analysis stereotyped evidence rather than a adequacy but rather the Nevertheless, offered to show that reaction based on habit.” discrimination “ any ‘analysis’ upon unsup- interest.” rests premises possibly ported factual cannot gender- Although it is clear that both ‘reasoned,’ widely- be untrue ethnicity-con- conscious and race- or generalization held about men or women programs must tested for evi- scious be ” ‘stereotype.’ definition a That is sufficiency, ... a dentiary gender-con- why scrutiny the intermediate evidentia- program can scious ry “inquiry turns on whether there is safely something than the rest less evidence of “strong required basis evidence” affirma- sphere economic at which the weight ethnicity- bear the of a race- or program tive action is directed.” Un- gender program.... [I]n conscious supported generalizations not suf- will required.... context less evidence is fice. proponent gender-conscious of a af- [A] sufficiency-of-the-evidence program present Although firmative action must precise standards elude formula- only probative not evidence discrimi- tion, nation, probative foregoing guide- but sufficient evidence we believe the two Although determining lines will assist courts in of it.... the difference be- “strong government presented in evidence” when a has suffi- tween the basis applicable probative support to race- or ethnici- cient evidence of its standard enacting gender rationale for ty-conscious programs and less stated i.e., probative preference, evidence” when the evidence is stringent “sufficient gender-conscious preference sufficient to show that applicable standard Protection, VII, they they may Equal lose on still violates Title see Johnson Trans- 616, 630-40, VII, portation Agency, 480 U.S. 107 prevail under Title or vice versa. Ac- 1442, 1451-56, (1987), S.Ct. 94 L.Ed.2d 615 cordingly, opinion we concentrate on in this argument they Equal on Protec- focus their Equal analysis. Protection argue Appellants tion. do not that even if analysis certainly It rests on evidence-informed is true that this Court stereotypical generaliza- government rather has indicated that a affirma tions. tive action should not be based on general population figures where there ex added) (citations (emphasis Id. at 908-11 ists more refined data establishing the omitted). proper pool. labor concurring his dispute do not that re I, dissenting opinion in Peightal Judge dressing past wom Tjoflat suggested County’s plan important governmental en is an interest comport did not part with Title inVII supporting a gender-con the existence of because “the district court used a flawed plan. Ap scious affirmative action Nor do methodology to conclude that there is a pellants sufficiency take issue with the of manifest imbalance percent between the original evidentiary basis for the Coun age employed by of minorities appellee Rather, ty’s affirmative action and the percentage of minorities contend there was an insufficient ba pool.” relevant labor 940 F.2d at 1411. plan, sis for and the Tjoflat Judge explained: As district “[The] women, preferential during treatment court ... simply percentages looked period. the 1994-97 minorities of Dade and com pared that percentages with the of minori specific objection focus of their employed ties firefighters in the De “long-term” goal is the partment, to decide whether disparities representation. argument This justified an program. affirmative action primarily using rests on the belief that ‘showing [But w]here evidence exists general population figures from 1980 to figures general population “appropriate” determine the number might accurately pool reflect the holding women who should be Fire De job applicants,’ the value of such partment jobs today legally is flawed both figures for evaluating legality of an factually when more refined data is greatly diminish available. contend that we now ed.” Id. at 1411-12 (quoting International know—as we did not 1984—that States, Bd. Teamsters v. United population figures misleading are because U.S. 339 n. S.Ct. they do not take into account (1977)). L.Ed.2d 396 inherently being not as interested in that, Judge Tjoflat reasoned there firefighters, inherently and are when capa less general population is an indication that meeting physical ability require ble of figures may accurately not necessary firefighters, ments to be reflect the Accordingly, Appellants qualified pool, governmental body men. labor a say, the plan’s long-term goal instituting plan—and of 36% women— affirmative upon general population reviewing plan—“should is based a court such a fundamentally data—is figures closely ap- flawed.5 search for that more Technically speaking, goal 5. physically the is not not all 36% women are interested or data, entirely general a population qualified firefighters. Appellants function of to be believe and, represents arbitrary because reduction in the that this reduction is un- 30% 30% data, population of women in the at like their refined does not take sufficient (52%). intended, large foregoing This reduction is at account of the on limitations the part, pool. least in account of that take the fact size of relevant labor

1296 question threshold pool,” Regarding in- applicant qualified proximate justifi- had sufficient that whether assumption from the starting stead of giving any preferential for treat- cation composition popula- gender racial or in 1994-97 to women ment gen- or the racial tion as a whole reflects plan, the ev- through its affirmative action pool. labor composition der proving falls well short of that this idence Pack- (citing 1412 Cove F.2d at Wards 940 impermissible. treatment was preferential Atonio, 642, 650, Co., 490 U.S. ing Inc. v. observed, there is As the district court 2121, 104 L.Ed.2d 733 109 S.Ct. Depart- Fire substantial evidence of the II, (1989)). endorsed Peightal In we against systematic ment’s discrimination concerns, again Tjoflat’s noted Judge many years prior adop- women for pop- undesirability the “relative plan the affirmative action tion of at 1554. F.3d figures,” ulation Seibels, Branch, Ensley NAACP v. See only takes them refined data Appellants’ (11th Cir.1994) (“In F.3d far, such Simply presenting so however. allegation there is no that case [where] aggrieved party not entitle an data does action was gender-based rather, relief; sufficiently must be the data of ‘archaic and overbroad adopted because chal- developed to demonstrate assumptions the relative needs and about II, Peightal unlawful. lenged sexes,’ ‘important capacities of the ultimately concluded that example, we turns on government inquiry interest’ scrutiny strict County’s plan survived discrim- whether there is evidence against as it discriminated whites insofar sphere at which ination the economic to adduce plaintiffs “fail[ed] because program is direct- the affirmative Id. at 1555. refined statistical data.” more omitted). ed.”) (internal citation As of program affirmative action when the below, we share some As discussed Department’s workforce began, the Fire County’s Appellants’ concerns about female; only eight years be- was 1% long-term particular and in the 36% fore, no had females. howev- hiring goal. problem, court, in a decision we af- The district er, this record does not contain II, specifically found firmed sufficiently developed evidence to entitle Department’s practices had dis- Spe- case. any relief parate and therefore the effect women accept Appel- cifically, even we were in in- compelling had “a interest data, applicant flow the evi- lants’ refined plan to stituting an affirmative action dence does not show ... remedy past plan (including the lot- affirmative action ” F.Supp. at 1466. The women.... unjustified respect tery system) was long-term that one of the court found Moreover, al- as of 1994-97. to women goals suggest does though Appellants’ evidence ... underrepresentation “reheve high, too there is goal be Department.” Id. the Fire establishing no evidence it found that even extensive 1458. And applications treated would have been suffi- efforts “would be recruitment in figure if had the differently been underrepre- problem the cient to solve arguably suggested range 15.9%-21.69% of women.” Id. sentation reasons, by we can- their data. For these period shows on this The data for the 1994-97 not find a constitutional violation substantially under- that women remained record. represented Department. plans At the take sufficient account of the period, just possibility of the of the may start 8.89% De- females not be inter ested in the relevant partment’s firefighters By position. were female. See United Miami, City States v. 2 F.3d period, percentage the end of that (11th Cir.1993). 1507-08 But using even only females was still 11.6%. data, Appellants’ there signifi remains a Appellants argue under-repre- that this cant gap between of wom (at sentation of females was not due (11.6%) en by 1997 1994) by least lingering effects of Appellants’ highly imprecise estimate of Instead, past they say, discrimination. it what that percentage should have been was due to females’ lack of interest taking account of females’ asserted lack of becoming firefighters. This fact is criti- (15.9%- interest in becoming firefighters cal, according Appellants, because 21.69%).6 why demonstrates reliance Appellants argue also that the County’s flawed, on general population data is use of general population figures fails to why also demonstrates their refined take account of the fact that women are purports data —which to take account of physically qualified less than men to be this lack-of-interest factor —is more reli- firefighters. maintain, and the able. observe that per- County dispute, does not quali- to be centage of female during the firefighter applicant, fied as a male or period relevant ranged only from 15.9% female, must meet certain physical basic (1994) (1997), to 21.69% and contend fitness standards. Those standards are figure therefore that a between 15.9%- gauged in a test by administered figure by 21.69%—not the 36% derived part hiring process; if an from population applicant round, fails on the first he or she proper data —is com- be may take the again. Appellants test ob- pared to the number of women that, serve eligible 97.2% of the Department’s workforce and used in de- applicants passed physical ability male termining whether affirmative action was round, exam on the first only while 11.8% justified. applicants passed female on the first During second, round. “try again” problem The central round, 98.6% of the men passed, while data, credited, claim is that their even passed. Citing 39.2% of the women these does not establish that the figures, Appellants contend that women preferential pursuant treatment simply physically are not as qualified as to its unjusti- firefighters. men to be fied 1994-97. We have emphasized the need for courts Physical to examine may impact characteristics gender-conscious whether affirmative ac- size of the applicant pool. See premise Appellants' argument 6. The Depart- is also as more women become aware of the questionable. Appellants’ contend their recep- ment’s outreach efforts and newfound applicant flow data takes account of the fact applicants, tiveness to female more women becoming that women are less interested in least, ready apply. very At the firefighters than men. But the fact that the fig- evidence show that a 15.9%-21.69% applicant dramatically numbers rose ure underestimates the real number of wom- 21.69%, from 1994 to 1997—from or 15.9% becoming firefighters. en interested in numbers, suggests in raw 1180 to 1469— First, to an addition- Miami, they try apply But 2 F.3d at 1507-08. ders. City of estimate, suppos- al reduction to their ability data does Appellants’ physical edly County’s 30% reduction to mirror establish particular, unjustified popula- in 1994-97. of women in the percentage to the was (52%) plan’s fail to relate their Appellants completely large to arrive at the tion at ability to other data concern- physical Appellants’ data long-term goal of 36%. As for qualifications in or ing conceded, however, females’ interest there is expert own Indeed, Appellants do not position. simply applying no foundation for such show, relating that data argue, or even Among Appellants’ estimate. reduction physical of women on the performance things, 30% reduction other fig- the 15.9%-21.69% ability exam alters account of the fact was intended to take (based asserted lack-of- on females’ ure quali- lack interest in or that some females interest) accurately they say more job; Appellants’ refined fications for the “appropriate” number of wom- reflects that fact in a purports incorporate data above, Department.7 in As stated en way, there is no basis for precise more so figure and the between that the difference applying an additional 30% reduction Depart- in the number of women actual their data. period signifi- is during the relevant ment Second, that the dis- Appellants contend cant, support and sufficient to parity the low end of their esti- between analy- scrutiny action under intermediate of women percentage mate of the who sis. should have been therefore, mar- Ultimately, the data (15.9%), representation of and the actual fully Appellants, even shaled women, statistically insignificant. in 1997 is credited, De- not establish that the does II, 26 F.3d at 1556 n. 16 Cf. of wom- preferential treatment partment’s disparity statistically (suggesting that to its affirmative action pursuant en repre- context when it significant using unjustified by 1994-97. Even three standard more than two or sents data, signifi- remained a there deviations) Au- (citing v. Port Waisome percentage of wom- gap cant between (2d Cir.1991)). F.2d thority, 948 (11.6%) and Department by en however, persuasive offer no Appellants, imprecise and incom- Appellants’ highly support argument. Appellants’ for this plete estimate of what incorrectly only on the calculation focuses (15.9% 21.69%). That should been — entry-level firefighter number of women intermediate scruti- gap is sufficient under Depart- opposed in 1997 as positions County’s affirmative ac- ny justify 2, supra. Ap- ment as a whole. See note legal no or statisti- pellants also establish comparing cal foundation whatsoever gap that this dispute do not entry-level fire- rejoin- the number of women offer two significant, but instead Appel- firefighters, qualified were to be that no women felt do not contend White, expert, an- firefighters, Dr. or lants' own statistical physically to be reiterate, although data show- no. To tiny percentage of women are swered Indeed, physically ing are less able Appellants nev- that women physically qualified. firefighters well be rele- men to serve as specifically percentage of women er state determining qualified applicant vant physically qualified. believe are on this pool, Appellants' data is insufficient had deposition whether he When asked record. indicating percentage of women he data

1299 in positions 1997 to the number of of 25%. Between 1994 and fighter ap- it (the in applicants positions pears for such that 26% of the 199k Appellants’ figure).8 low end For entry-level women, basis firefighter hires were reasons, all of these we find on this record during period and Department this the County’s that the use of affirmative action actually declined to hire some of the wom- justified. in 1994-97 was eligibility en on the final though list even it could have done so. The County also in- analysis necessarily does not end that it sists does not the target view 36% there, argue, of course. One could still as permanent, number; rather, as a inflexible do, Appellants basically plan— says it figure reviews that justifiable degree to some even still—is annually light it, in of the data available to pegged unlawful to the extent is to an may adjust and that figure up or down as unrealistically high hiring goal of 36%.9 require. circumstances data, Appellants’ although it does not es- County’s use of tablish time, On this limited record and by unjustified, 1994-97 was does agree that we as of 1994-97 there was suggest specific hiring goal that a 36% is enough of a fit County’s plan between the high. far from disputing too And justification and its asserted of eradicating allegation high is too a target, Fire County all but concedes that the 36% against satisfy women to intermediate goal argument is unobtainable. At oral scrutiny. sufficient, The evidence is in County goal counsel for the described the circumstances, support these the conclu unrealistic,” in “probably its brief sion as a matter of law that the as it County simply responds “[pjerhaps actually applied “substantially is relat not” to assertion that the 36% ed” to goal redressing effects goal may years not be fulfilled even 15-20 prior Ensley, unlawful discrimination. See from now. 1581-82; 31 F.3d at Engineering see also Contractors, (“under 122 F.3d at 929 inter however, County responds, scrutiny, gender-conscious mediate pro stressing “long- that the 36% is a gram closely need not tie its numerical hiring goal term” that bears no relation- goals proportion to the ship implemented how on an market”); Eldredge Carpenters It undisputed annual basis. Northern hiring prac- Appren based its annual Counties Joint Calif. Comm., goal, neighborhood ticeship Training tices on lower F.3d Notably, Appellants’ expert hiring period). 8. conceded that 1994-97 There is no evidence “highly significant” there is a statistical dif- illegality record establish the ference between the actual number of women solely Department’s plan on the basis entry-level firefighter positions in 1997 and population use of We obsolete data. positions the number of for such are confident that the the extent it —to regard- He made the 1997. same concession apply continues to its affirmative action ing 1994. also take into account more recent —will reject population Appellants' data. We also Appellants object County's continued argument regarding percentage that data figures population use of from 1980 in lieu of protective positions of women in services County responds more recent data. The illegal- Miami-Dade demonstrates the of females in the available ity Department’s plan. of the Fire pool change labor did not between 1980 and (the date of the last census before the Notwithstanding the (same). Cir.1996) operation. The (9th

1366, 1371-72 target “long-term” the 36% that insistence rigid quota, aas applied not is target 36% actually happens what not dictate at does appear be used indeed, not does the that basis, clear it seems annual year-to- from plan the implementing all in perpetua- justify being used to is goal 36% year. It is action tion no has been there critically, Just long life of not undisputed that once un- if target, even 36% showing that the any- Department hired the plan has the Appellants the caused sustainably high, entry-level for 36% women near where their concentrate Appellants injury. any matters Making positions. firefighter doing fail in so goal, but on the 36% attack the De- period, worse, the 1994-97 during highest or- the except at to demonstrate — to hire wom- declined knowingly partment actual- figure that abstraction —how der of already deemed had en it no present them. ly affected practical eligibility list. on its placed num- figure the 36% tying evidence hiring “long-term” maintaining a effect of lottery the surviving male ber of females, hiring without ever of 36% goal the showing that is no system. There year, is any given percentage that at applications of treatment long perpetuity, exist in plan the make have been stage would lottery the past discrimination of any effects after set had been hiring target if the different say, Needless been eradicated. have (for the example, percentage at lower 36% achieve its never Department will the arguably suggested 15.9%-21.69% than 26% women no more target it hires data). refined by Appellants’ year. per figure bears the that 36% represented has of males the no with connection may not plan action An affirmative lottery, and surviving the See, Ensley, 31 F.3d e.g., go on forever. disputing no evidence forward with come (“The eliminating of discrimina goal ac- Accordingly, even representation. that use of affir interim may justify some tion that argument the cepting Appellants’ selec action, but affirmative mative not fact that would high, too figure is of form are themselves provisions on this record. any relief them to entitle forev that cannot continue discrimination County’s plan Although goals er.”). discrimination Simply because those underlying data of and some law may be form affirmative re- in some questionable may be goals that in time mean point at one does ful only intermediate applying spects, we may be countenanced such standard, find we that scrutiny, and under Miami, exam City in the future. period. 1994-97 justified plan municipal over expressed concern ple, we entering not err did The district court long- that its argument department’s fire Appellants. summary judgment yet had not parity force goal work term achieved, if that “were because County’s re- been said, find the we All factor, decree the consent determining Al- sole issues troublesome. sponse to these indefinitely force likely remain 36% would County asserts though the lack success given flexible, evidence that there no goal n. at 1508 2 F.3d recruiting women.” goal once—in has ever altered —even unre- “when, for reasons stressed has We been years the 17 lated to discrimination or to the fault to remedy its misconduct swiftly. Nota- parties, goals unnecessary to bly, during oral argument in case, achievement of the basic purposes the County agreed that it could move faster to plan] [an affirmative action will either nev- achieve its hiring goals. Indeed, er be met or will be met only great the County agreed that it could eliminate difficulty,” may not withstand entirely its within years. three-to-four scrutiny. 2 F.3d Although we do not decide today, based

In Ensley, this Court was even parties more on the us, and record before in explicit discussing why components plan of was unlawful 1994-97, there an plan may not create a questions serious about the ongoing regime “gender-based where appointments validity of the plan. And we have little would likely continue forever.” doubt that there is an ample supply of unsuccessful applicants male entry-lev- for It was an of abuse discretion for the firefighter el positions with district permit court to such a potential- may fairly who bring similar challenges in ly cycle indefinite of discrimination to the future. reasons, For these Perpetual continue. use of affirmative should evaluate closely its female hiring foster the misguided belief goals, both short-term and long-term, and that women compete cannot on their proceed “with a sense of urgency” to ac- own. That just notion is pernicious “as complish fully goals whatever it believes converse, and as its offensive that wom- are appropriate legally and permissible in ought en to be excluded from all enter- light of the relevant facts and circum- prises place because their is in the stances If, as today. exist as the home.” When affirmative action out- County has represented us, it properly lives the pressing necessity justifies can eliminate its entirely within three use, its it begins breed very “ar- four years, or proceed must it to do so. chaic and overbroad assumptions about particular As for the Plaintiffs now before the relative needs capacities us, however, on this record we affirm the sexes” that it was designed to erase. entry of summary judgment in Defen- (citations omitted). F.3d at 1581-82 dants’ favor. has now been granting AFFIRMED. preferential treatment to nearly two decades. govern- When HAND, Judge, District specially ment voluntarily adopts an affirmative ac- concurring: remedy of effects its discrimination, it pursue must goals its opinion writing judge this “with a sense of urgency.” Id. at 1571. case is a masterpiece judicial logic that This is so not only because the duration of clearly and cogently delineates prob- is a key factor assessing its lems the obligatory law as now see, validity, e.g., Contractors, Engineering stands on issues such as are raised 927; II, F.3d at case, F.3d at and one with which I am happy to 1559, but also because a governmental concur. I separately only write body which is prepared to admit to a histo- purpose of expressing my continuing con- ry of discrimination should compelled feel sternation with day” our “modern legalistic problems solutions approach TILLMAN, un- Executrix Brenda D. litiga- in this involved those nature and Testament the Last Will overweening der developed tion. We Deceased, Tillman, Kalen Oliver issues to societal approach in our desire Plaintiff-Appellant, through perfect things all make

try to or bureaucratic law, legislative, itbe use en- to be ourselves allow judicial. We is, at engineering gaged social TOBACCO, et REYNOLDS R.J. rarely suc- science

best, exact not an Defendants-Appellees. al., intents. its honest solving ever, in ceeds, if No. 00-10963. that in clearly History demonstrates right- can any citizen Appeals, all that of Court society States free United provide law is that from fully expect Circuit. Eleventh they it that with confronted any who 13, 2001. June jus- to or opportunity equal will involves more Anything tice. government meddling by the and/or

rank it all of and carries judiciary re- history shown has which

ramifications life, of management micro such from

sult is loss result chief jealously clearly and so freedom

individual govern- of our founders by the

regarded argument of oral the course During

ment. its through coun- case the this discrimi- longer no

sel, admitted fashion

nate many years. If so for

have not done is axiomatic case it indeed the under actions continued

government’s unjust- necessity is claim of some

rubric example a classic

ified and constitutes finger placing government justice the scale side on one

law longer justi- no balance perceived

reach society and free to a inimical This

fied. its cause of product ultimately be

will

undoing.

Case Details

Case Name: Grant Danskine v. Miami Dade Fire Department

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Jun 12, 2001

Citation: 253 F.3d 1288

Docket Number: 99-14493

Court Abbreviation: 11th Cir.