William T. THIGPEN, Jr., and James W. Allen, Plaintiffs-Appellants, v. BIBB COUNTY, GEORGIA, Sheriff‘s Department; and Robbie Johnson, Sheriff, Bibb County, Georgia, in his official capacity, Defendants-Appellees.
No. 99-12417.
United States Court of Appeals, Eleventh Circuit.
July 7, 2000.
Before TJOFLAT, MARCUS and KRAVITCH, Circuit Judges.
Appeal from the United States District Court for the Middle District of Georgia.(96-00315-CV-5-2-WDO), Wilbur D. Owens, Jr., Judge.
This appeal centers around the challenge of two white police officers to the continued constitutionality of an employment promotion policy adopted in settlement of a prior racial discrimination suit against the Bibb County, Georgia, Sheriff‘s Department (the “Department“). The officers claim that the promotion policy‘s mandate that the Department award fifty percent of all annual promotions to black officers denies them the opportunity to compete for those promotions and thus violates their right to equal protection of the laws as guaranteed by the
The appeal presents four distinct legal questions: (1) whether an equal protection claim alleging racial accounting in the conferral of promotions is cognizable; (2) whether an equal protection claim brought pursuant to
I. BACKGROUND AND PROCEDURAL HISTORY
In 1978, James Reeves, a black male employed as a deputy sheriff by the Department, on behalf of all past, present, and future black applicants for employment with or promotions within the Department, commenced a class action racial discrimination suit against the Department and former Sheriff Raymond Wilkes. In settlement of that litigation, the parties entered into, and the district court ratified, a Consent Decree (the ”Reeves Decree“), which in part provided:
PART VIII—AFFIRMATIVE ACTION—PROMOTION GOALS
12. A part of the objective of this Order is to achieve a work force in which the promotion of black employees, is equal, (a) by job classification, (b) by department, and (c) by rate of pay. In furtherance of this promotion goal, during the term of this Order the Defendants shall adopt the promotion goals referred to below:
- All personnel in the Sheriff‘s Department will be made aware of the requirements for promotion to their next highest position.
- At least semi-annually personnel eligible for promotion will be notified.
- Each year at least fifty percent (50%) of the promotions will be blacks who have met the requirements for promotion to their next highest position.
- This system is to be followed until the Court shall determine that the Defendants have complied in good faith with this Order and the requirements of federal laws relating to employment practices.
...
14. Anything herein notwithstanding, Defendants shall not be required to violate Title VII or any other laws mandating equal employment opportunity in the implementation of this section of the Decree.2
Plaintiffs-Appellants William Thigpen, Jr., and James Allen (collectively, “Plaintiffs“), both white males, are police officers in the Department and hold the respective ranks of Captain and Senior Lieutenant. Pursuant to
II. ANALYSIS
The district court articulated four reasons for granting Defendants’ motion for summary judgment. First, it interpreted this circuit‘s law to require a plaintiff alleging an equal protection violation to demonstrate a property or liberty interest in the opportunity or benefit denied him or her. Because Plaintiffs’ claims are premised on allegedly improper denials of promotions, in which no property or liberty interest exists, the court held that Plaintiffs’ claims are not cognizable. Second, the court held that Plaintiffs’ failure to file companion employment discrimination claims under Title VII procedurally precludes their section 1983 claims. Third, applying the burden-shifting analysis familiar to employment discrimination claims, the court held that Plaintiffs introduced insufficient evidence to create a genuine issue of material fact as to whether Defendants’ non-discriminatory explanations for their decisions not to promote Plaintiffs were pretextual. Fourth, because all promotions other than that of Gantt in 1996 were conferred outside of the two-year statute of limitations, the court held that Plaintiffs’ claims, to the extent that they are premised on those earlier promotions, are time barred. On appeal, Plaintiffs assign error to each of the district court‘s holdings, as well as to its denial of their cross-motion for partial summary judgment. We review the district court‘s disposition of summary judgment motions and any conclusions of law drawn therein de novo. See Kirby v. Siegelman, 195 F.3d 1285, 1289 (11th Cir.1999).
A. The Relevancy of Property or Liberty Interests to Equal Protection Claims
We address first the district court‘s conclusion that Plaintiffs’ equal protection claims are incognizable because Plaintiffs had no property or liberty interest in the promotions they were denied. In reaching its holding, the district court relied on this court‘s decision in Wu v. Thomas, 847 F.2d 1480, 1485 (11th Cir.1988), in which we reaffirmed that “a prospective promotion is not a property or liberty interest protected by the
The district court‘s identification of a property or liberty interest as a required element in an equal protection claim is erroneous because the text of the
B. The Relationship Between Section 1983 Equal Protection Claims and Title VII Employment Discrimination Claims
We next address the district court‘s holding that Plaintiffs’ section 1983 claims are procedurally barred because Plaintiffs did not also plead companion Title VII claims. Because this is an issue of first impression in this circuit, we begin our analysis by recounting the evolution of the interplay between section 1983 equal protection claims and Title VII employment discrimination claims.
The juxtaposition of these two causes of action emerged in 1972 when Congress amended the Civil Rights Act of 1964 to make Title VII applicable to state and municipal employers, against which section 1983 previously had been the principal avenue for seeking redress for complaints of discrimination. See Pub.L. No. 92-261, § 2, 86 Stat. 103, 103 (1972). Courts subsequently confronted the possibility that Title VII had supplanted section 1983 claims as the appropriate remedy against these employers, but instead found that the legislative history of the amendments revealed that such was not Congress’ intent. See, e.g., Keller v. Prince George‘s County, 827 F.2d 952, 958-62 (4th Cir.1987) (exhaustively detailing the legislative history surrounding the amendments); see also H.R.Rep. No. 92-238, at 78-79 (1971), reprinted in 1972 U.S.C.C.A.N. 2137, 2154. Indeed, “every circuit [to] consider[ ] this issue [held] that Title VII[was] not the exclusive remedy for discrimination claims against state or municipal employers, where those claims derive from violations of Constitutional rights.” Annis v. County of Westchester, 36 F.3d 251, 254-55 (2d Cir.1994) (listing cases).
Following the passage of the Civil Right Act of 1991 and amendments to Title VII made therein, courts again considered the preclusive effect Title VII might have on section 1983 equal protection claims. In Johnson v. City of Fort Lauderdale, 148 F.3d 1228, 1231 (11th Cir.1998), this court held that “the Civil Rights Act of 1991 did not render Title VII ... the exclusive remed[y] for public sector employment discrimination, thereby preempting a constitutional cause of action under [section] 1983.” Accord Beardsley v. Webb, 30 F.3d 524, 527 (4th Cir.1994). Section 1983 therefore remains an available cause of action for bringing equal protection claims against municipal employers which allegedly have engaged in employment discrimination.
From this baseline, the district court made a considerable leap in holding that the viability of a section 1983 equal protection claim is contingent upon the concurrent pleading of a Title VII claim. To support its holding, the district court cited Burtnick v. McLean, 953 F.Supp. 121, 123 (D.Md.1997), in which that court grappled with what it perceived as a conflict in Fourth Circuit authority. In Keller, 827 F.2d at 962 (pre-Civil Rights Act of 1991), and later in Beardsley, 30 F.3d at 527 (post-Civil Rights Act of 1991), the Fourth Circuit had held that Title VII does not preempt section 1983 equal protection claims. Subsequent to both decisions, but without disputing their holdings, the Fourth Circuit in Hughes v. Bedsole, 48 F.3d 1376, 1383 n. 6 (4th Cir.1995), cryptically remarked that the plaintiff in that case “[could] not bring an action under [section] 1983 for violation of her Fourteenth Amendment rights because [she] originally could have instituted a Title VII cause of action.” The Burtnick court considered itself “constrained to follow the more recent pronouncement of the Fourth Circuit in Hughes,” 953 F.Supp. at 123, and accordingly entered summary judgment against all of that plaintiff‘s section 1983 claims. We, however, are not so constrained and repudiate the Fourth Circuit‘s apparent disposition of this issue.
The Hughes court predicated its holding on the Supreme Court‘s decision in Great American Federal Savings & Loan Ass‘n v. Novotny, 442 U.S. 366, 378 (1979), in which the Court concluded that section 1985(3), the conspiracy counterpart to section 1983, “may not be invoked to redress violations of Title VII.” We find Novotny inapposite to the issue that was before the Fourth Circuit and is now before us. The Novotny Court recognized that section 1985(3), like section 1983, is a purely remedial statute that “provides no substantive rights itself,” but instead provides a civil cause of action when some elsewhere-defined federal right has been violated. Id. at 372. In his section 1985(3) claim, the Novotny plaintiff averred only that his rights secured by Title VII had been infringed. See id. at
Novotny‘s narrow holding does not compel the conclusion reached by the Fourth Circuit in Hughes. Unlike the Novotny plaintiff, the Hughes plaintiff did not identify Title VII as the predicate federal law allegedly violated; rather, she claimed frustration of her equal protection rights, which are rooted in the Constitution, not in Title VII. See Hughes, 48 F.3d at 1383 n. 6. Plaintiffs here have alleged the same, and “[b]ecause this case involves the assertion of constitutional rights, the holding of Novotny simply does not apply.”5 Dickerson v. Alachua County Comm‘n, 200 F.3d 761, 766-67 (11th Cir.2000).
The only circuit squarely to have addressed the issue of whether a section 1983 equal protection claim is viable if brought absent a companion Title VII claim is the Second Circuit. In Annis, the court, after assenting that Title VII and section 1983 are equally cognizable causes of action available to remedy public sector employment discrimination, reasoned that because section 1983 claims are not preempted by Title VII, they need not be accompanied by Title VII claims. 36 F.3d at 254-55. Defendants cite no authority suggesting that the availability of multiple causes of action obligates a plaintiff to pursue every option. We
C. The Appropriate Analytical Framework for Evaluating Plaintiffs’ Equal Protection Claim
The district court also reached the merits of Plaintiffs’ claims and applied the analytical framework outlined by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and familiar to employment discrimination suits. We have no occasion to review the district court‘s analysis, however, because we agree with Plaintiffs that McDonnell Douglas does not provide the appropriate framework for evaluating the merits of their claims.
The district court did not construe Plaintiffs’ claims as an attack on the constitutionality of the Reeves Decree,7 but rather as a routine complaint of several alleged instances of employment discrimination. The district court misapprehended the true nature of Plaintiffs’ claims. In their complaint, Plaintiffs alleged that the Reeves Decree “fails to survive contemporary equal protection strict scrutiny.”8 Moreover, in addition to seeking money damages for past alleged equal protection violations, Plaintiffs requested “a declaration invalidating and striking or modifying those provisions [of the Reeves Decree] to bring them into compliance with current standards of Equal Protection” and “[a] corresponding injunction prohibiting defendants from
Although this court does “evaluate ... [section] 1983 race discrimination claims supported by circumstantial evidence using the framework set out ... in McDonnell Douglas,” Harris v. Shelby County Bd. of Educ., 99 F.3d 1078, 1082-83 (11th Cir.1996) (emphasis added), this suit does not involve such claims. As we previously have recognized, the Reeves Decree “establishe[d] certain mandatory racial quotas for hiring and promotion within the Bibb County Sheriff‘s Department.” See Reeves, 754 F.2d at 967. We construe this provision to constitute an affirmative action plan, see In re Birmingham Reverse Discrimination Employment Litig., 833 F.2d 1492, 1501 (11th Cir.1987) (Birmingham I), the constitutionality of which is evaluated according to the standard introduced in City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989). See Engineering Contractors Ass‘n v. Metropolitan Dade County, 122 F.3d 895, 906 (11th Cir.1997) (evaluating programs that created preferences based on race and ethnicity pursuant to Croson).
In Croson, the Supreme Court adjudged the constitutionality of a plan that “required prime contractors to whom the city [of Richmond] awarded construction contracts to subcontract at least [thirty percent] of the dollar amount of the contract to one or more [minority-owned businesses].” 488 U.S. at 477. The Court observed that this affirmative action plan:
denie[d] certain citizens the opportunity to compete for a fixed percentage of public [construction] contracts based solely upon their race. To whatever racial group these citizens belong, their “personal rights” to be treated with equal dignity and respect are implicated by a rigid rule erecting race as the sole criterion in an aspect of public decisionmaking.
Croson‘s analytical framework applies with equal force to affirmative action plans that influence the treatment of employees by governmental employers. See, e.g., In re Birmingham Reverse Discrimination Employment Litig., 20 F.3d 1525, 1544 (11th Cir.1994) (Birmingham II). Indeed, this court‘s Birmingham II decision is particularly instructive because its underlying facts are similar to those of the instant case. In Birmingham II, the court assessed the constitutionality of an affirmative action policy adopted in partial settlement of an employment discrimination suit. See id. at 1530-31. Like the Reeves Decree, the Birmingham II plan mandated that a fixed percentage of promotions within a particular job category be awarded to black applicants, irrespective of the percentage of blacks in the labor force or applicant pool. See id. at 1531-32. In applying the Croson framework, the court found that the municipality possessed a compelling interest in the remediation of past discrimination within the Birmingham Fire Rescue Service. See id. at 1545. Indeed,
the interest that is alleged in support of racial preferences is almost always the same—remedying past or present discrimination. That interest is widely accepted as compelling. As a result, the true test of an affirmative action program is usually not the nature of the government‘s interest, but rather the adequacy of the evidence of discrimination offered to show that interest.
Several factors determine whether race-based promotional relief is narrowly tailored to accomplish a compelling purpose, including: the necessity for the relief and the efficacy of alternative remedies, the flexibility and duration of the relief, including the availability of waiver provisions, the relationship of numerical goals to the relevant labor market, and the impact of the relief on the rights of [non-minority officers].
Birmingham II, 20 F.3d at 1545.
We conclude that Croson, Birmingham II, and commensurate decisions, not McDonnell Douglas, provide the proper framework in which to evaluate Plaintiffs’ claims challenging the constitutionality of the Reeves Decree. Summary judgment therefore was inappropriate, and the case is remanded for further proceedings.11
Defendants assert that regardless of the analytical framework, they are entitled to summary judgment because: (1) the Reeves Decree does not require the sheriff to award individual promotions based on race; (2) even absent the Reeves Decree, the promotions would have been awarded to the same officers; and (3) judicial oversight of the Reeves Decree shields Defendants from liability. We find no merit in any of these assertions.
Defendants contend that their compliance with the Reeves Decree12 does not evince the commission of equal protection violations because the terms of the Reeves Decree do not compel the sheriff to consider race when awarding individual promotions. They cite the deposition testimony of Sheriff Johnson, in which
Defendants’ invocation of the so-called “same decision defense” is likewise unavailing. Defendants’ contend that even absent the Reeves Decree, they would have made the identical selections for the promotions at issue. Any consideration of race, therefore, was superfluous and, more importantly, not determinative of who received the promotions. Defendants rely on this court‘s decision in Evans v. McClain of Georgia, Inc., 131 F.3d 957 (11th Cir.1997), in which we held that an employer could avoid Title VII liability “by proving ... that it would have made the same [employment] decision even if it had not taken the [illegitimate criterion] into account.” Id. at 962 (quoting Price Waterhouse v. Hopkins, 490 U.S. 228, 258 (1989)). Although this court also has permitted this defense in section 1983 equal protection claims, see Whiting v. Jackson State Univ., 616 F.2d 116, 122 (5th Cir.1980),14 it is immaterial to a constitutional challenge to an affirmative action plan that imposes a racial classification. As the Supreme Court has pronounced:
When the government erects a barrier that makes it more difficult for members of one group to obtain a benefit than it is for members of another group, a member of the former group seeking to challenge the barrier need not allege that he would have obtained the benefit but for the barrier.... The “injury in fact” in an equal protection case of this variety is the denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit.
Northeastern Fla. Chapter of the Assoc. Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 666 (1993). Accordingly, Plaintiffs’ alleged constitutional injury was inflicted by their exclusion from consideration for one-half of the promotions conferred annually; their failure to be promoted is merely a manifestation of that injury. Defendants’ assertion that they would not have promoted Plaintiffs even in the absence of the Reeves Decree is therefore irrelevant.15
We next consider Defendants’ assertion that the supervision of a federal district judge over the implementation of the Reeves Decree severed the causal connection between their conduct and the Plaintiffs’ alleged injuries. See Rheuark v. Shaw, 628 F.2d 297, 305 (5th Cir.1980) (“In order for a governmental unit to be liable under [section] 1983, the policy or custom [of that unit] must ... be a proximate cause of the constitutional violation.“). The district judge who presided over the original Reeves suit has monitored the implementation of the Reeves Decree since its inception. Without citing any supporting authority, Defendants argue that the judge‘s oversight should relieve them of any liability for concomitant constitutional violations. In Birmingham I, however, this court entertained Title VII and section 1983 attacks on a consent decree overseen by a federal district judge and “rejecte[d] any notion that the memorialization of [a] voluntary undertaking in the form of a consent decree somehow provides the employer with extra protection against charges of illegal discrimination.” 833 F.2d at 1501.
D. The Timeliness of Plaintiffs’ Equal Protection Claims
The statute of limitations for a section 1983 claim arising out of events occurring in Georgia is two years.16 See Williams v. City of Atlanta, 794 F.2d 624, 626 (11th Cir.1986). This suit was filed in August 1996, dating the statute of limitations back to August 1994. Only the promotion of Charles Gantt occurred within this limitations period. The district court thus held that Plaintiffs were barred from seeking redress for the equal protection violations allegedly caused by the promotions conferred by former Sheriff Wilkes between 1986 and 1992 (the “Wilkes promotions“). Plaintiffs rejoin that because all the promotions at issue were conferred according to the terms of the Reeves Decree, they constitute a single “continuing violation” of the equal protection clause.17
“In determining whether a discriminatory employment practice constitutes a continuing violation, this Circuit distinguishes between the present consequence of a one time violation, which does not extend the limitations period, and the continuation of that violation into the present, which does.” Calloway v. Partners Nat‘l Health Plans, 986 F.2d 446, 448 (11th Cir.1993) (internal quotation omitted). In support of their characterization of the alleged violations, Plaintiffs cite Beavers v. American Cast Iron Pipe Co., 975 F.2d 792, 794 (11th Cir.1992), in which this court considered a Title VII claim challenging an employer‘s benefits policy that denied insurance coverage to children who did not reside full-time with their employee-parent. The court held that although the policy was instituted outside of the statute of limitations, the plaintiff‘s claim was nonetheless timely because the employee‘s alleged injury—lack of insurance coverage for his non-custodial children—was “the direct result of [an] on-going policy actively maintained by [the employer].” Id. at 798. Plaintiffs argue that the Reeves Decree qualifies as such an “on-going policy” and that, consequently, Beavers controls. Because we conclude that Beavers is distinguishable, we disagree. In Beavers, the injury of which the plaintiff complained was his children‘s uninsured status—an injury caused by his employer‘s continuous refusal to provide coverage. By contrast, any equal protection violation precipitated by the Reeves Decree only manifests itself when an opportunity for a promotion arises and applicants accordingly are evaluated. Although the Reeves Decree is continuously in effect, it does not continuously injure Plaintiffs’ equal protection rights.
We find the circumstances of the instant case more akin to those in Knight v. Columbus, Georgia, 19 F.3d 579, 580 (11th Cir.1994), in which we addressed the legality under the Fair Labor Standards Act (the “FLSA“),
E. Plaintiffs’ Cross-Motion for Partial Summary Judgment
Finally, we address Plaintiffs’ appeal of the district court‘s denial of their cross-motion for partial summary judgment on the issue of liability. Plaintiffs assert that they are entitled to partial summary judgment because Defendants’ undisputed compliance with the Reeves Decree conclusively evinces an unconstitutional accounting of race in the conferral of promotions within the Department.
The district court‘s grant of summary judgment to Defendants logically demanded the denial of Plaintiffs’ corresponding cross-motion. Although we now reverse the district court‘s grant of Defendants’ motion, we nonetheless affirm its denial of Plaintiffs’ cross-motion.18 As we have explained, the operation of the Reeves Decree does not necessarily offend the equal protection clause. Before a determination of liability is appropriate, Defendants must be afforded an opportunity on remand to defend the constitutionality of the Reeves Decree within the framework outlined above.
III. CONCLUSION
We REVERSE the district court‘s grant of Defendants’ motion for summary judgment, AFFIRM its denial of Plaintiffs’ cross-motion for partial summary judgment, and REMAND the case for further proceedings consistent with this opinion.