The opinion
Opinions of the United
1999 Decisions States Court of Appeals
for the Third Circuit
11-12-1999
Schurr v Resorts Intl Hotel
Precedential or Non-Precedential:
Docket 98-5356
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Filed November 12, 1999
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 98-5356
KARL C. SCHURR,
Appellant
v.
RESORTS INTERNATIONAL HOTEL, INC;
NEW JERSEY STATE CASINO CONTROL COMMISSION;
JAMES HURLEY*, CHAIRMAN OF THE NEW JERSEY
STATE CASINO CONTROL COMMISSION
*See Clerk's Order of 12/17/98
Appeal from the United States District Court
for the District of New Jersey
(D.C. Civ. No. 96-cv-03159)
District Judge: Honorable Stephen M. Orlofsky
Argued
March 11, 1999
Before: MANSMANN, SCIRICA and NYGAARD,
Circuit Judges.
(Filed November 12, 1999)
Stephen G. Console, Esquire
Joseph J. Ayella, Esquire (Argued)
Law Offices of Stephen G. Console
126 White Horse Pike
Suite 201
Haddon Heights, NJ 08035
COUNSEL FOR APPELLANT
John M. Donnelly, Esquire (Argued)
Levine, Staller, Sklar, Chan,
Brodsky & Donnelly
3030 Atlantic Avenue
Atlantic City, NJ 08401
COUNSEL FOR APPELLEE
RESORTS INTERNATIONAL HOTEL
CASINO
John R. Zimmerman, Esquire
(Argued)
Casino Control Commission
Tennessee Avenue and
the Boardwalk
Arcade Building, 2nd Floor
Atlantic City, NJ 08401-0208
COUNSEL FOR APPELLEES
Bradford Smith, Chairman of the
New Jersey State Casino Control
Commission and James R. Hurley,
Chairman of the New Jersey
Casino Control Commission
OPINION OF THE COURT
MANSMANN, Circuit Judge.
Karl C. Schurr, a light and sound technician in the
casino industry in New Jersey, appeals from an order of the
District Court granting summary judgment in favor of
Resorts International Hotel, Inc., and Bradford Smith,
Chairman of the New Jersey Casino Control Commission, in
connection with Schurr's claims of reverse discrimination in
hiring.1 In his complaint, Schurr alleged that race was the
determining factor in Resorts' decision not to offer him a
job which was ultimately filled by an equally well qualified
minority candidate. Schurr sought declaratory and
injunctive relief against Smith, contending that his
_________________________________________________________________
1. James R. Hurley, the current Chairman of the Commission, has been
substituted for Smith.
2
Fourteenth Amendment rights were violated by the
Commission's regulations establishing minority
employment goals. Schurr also alleged that Resorts'
affirmative action plan as drafted and applied was invalid,
resulting in violation of his rights under Title VII, 42 U.S.C.
S 2000e et seq., 42 U.S.C. S 1981, 42 U.S.C. S 1983, the
New Jersey Law Against Discrimination, N.J.S. 10:5-1 et
seq., and the Fourteenth Amendment to the United States
Constitution. Because we are convinced that the District
Court erred in granting summary judgment in favor of the
defendants on Schurr's Title VII and other statutory claims,
we will reverse that portion of the District Court's Order
and remand the matter for further proceedings. As to
Schurr's Fourteenth Amendment claim against the
Commission Chairman, we will affirm the grant of summary
judgment in favor of the Chairman on standing grounds,
although for reasons different from those set forth by the
District Court.
I.
Because this matter, both legally and factually, arises
against the regulatory background established by the
Casino Control Commission pursuant to the Casino Control
Act, N.J.S. 5-12:134, we examine this backgroundfirst. The
Casino Control Act requires that every casino license holder
undertake affirmative measures to ensure equal
employment opportunities. Relevant regulations require
that casino licensees take affirmative steps "to ensure that
women, minorities and persons with disabilities are
recruited and employed at all levels of the operation's work
force and treated during employment without regard to
their gender, minority status, or disability." N.J.A.C. 19:53-
4.3(a). Equal opportunity efforts are to be undertaken in all
employment practices including promotion, demotion,
layoffs and termination. Id. Casino licensees are required to
improve the representation of "[w]omen and minorities in
job titles within EEOC job categories in which the casino
licensee is below the applicable employment goals
established by N.J.A.C. 19-53-4.4." See N.J.A.C. 19:53-
4.3(b)(2). The regulations establish the following goals:
3
Minority Goal Female Goal
EEOC Job Category (Percentage) (Percentage)
Officers and Managers 25 46
Professionals 25 46
Technicians 25 46
Sales workers 25 46
Office and Clerical 25 46
Crafts persons 14 5
Operatives 25 30
Laborers 25 14
Service Workers 25 46
N.J.A.C. 19:53-4.4.
In setting these goals, the Commission reviewed 1990
census data for Atlantic City, New Jersey and for the
Commission's casino industry work force composition
analysis. See 25 N.J.R. 3690 (August 15, 1993). The goals
for each category were "based on the actual number of
employees in the comparative work force who were actually
available to fill such positions," and were set so as not to
exceed the cumulative Atlantic County work force statistics
in the given category. Id. In addition,"if the Atlantic County
availability statistic falls significantly (more than ten
percent) below the cumulative Atlantic County work force
statistic for that class, the employment goal for that
particular EEOC category and class will be the Atlantic
County availability statistic." Id.
In order to meet these goals and as a prerequisite to
licensing, each casino licensee is required to develop an
Equal Employment and Business Opportunity Plan
("EEBOP"). N.J.A.C. 19:53-6.1. The EEBOP must set forth
a detailed description of "the means by which the[casino]
intends to comply with the equal opportunity and
regulatory obligations imposed by N.J.A.C. 19:53-4.4."
N.J.A.C. 19:53-6.4. While the regulations do not specify the
means which must be used to meet employment goals, the
terms of the EEBOP are subject to the approval of the
Commission.
By statute, the Commission is also charged with
monitoring the composition of the workforce at each
4
licensed casino. Each licensee is required to file quarterly
and annual reports with the Commission and the Division
of Gaming Enforcement on its "affirmative action efforts . . .
concerning [its] operations work force." N.J.A.C. 19:53-4.5,
4.6. The quarterly report must include a listing of the
operations workforce by race and gender in each EEOC job
category and subclass. Id. Each casino is also required to
supply a summary of new hires, promotions, terminations,
and layoffs, a copy of all grievance reports relating to equal
employment opportunity, and a report on the
implementation of upward mobility training programs and
the status of participants. Id. If in a given quarter the
"casino licensee is below the applicable . . . goal established
by the N.J.A.C. 19:53-4.4 for a job category in which a
position with a salary of $35,000 or more is filled by
someone other than a woman or minority, the casino
licensee [must] document its efforts to hire or promote a
woman or minority to the position." N.J.A. 19:53-4.5(c)(2).
Similarly, "each casino licensee whose annual workforce
composition report does not demonstrate that the casino
licensee or applicant achieved the applicable employment
goals . . . shall be required to document its efforts to
implement and comply with the operations workforce
section of its EEBOP. . . ." N.J.A.C. 19:53-4.6.
Casino licensees are also subject to periodic EEBOP
assessment hearings at which the licensee is required to
demonstrate its compliance with its equal opportunity and
affirmative action obligations. If the Commissionfinds that
the licensee has failed to meet performance goals, the
licensee must document its good faith efforts to achieve
these goals, showing that it has implemented and complied
with those portions of its approved EEBOP which relate to
achievement of performance goals. N.J.A.C. 19-53-6.8.
Should the Commission determine that a casino licensee
has failed to comply with the requirements of the Act, it
may impose sanctions. Id. These penalties include, among
others, denial, suspension, revocation of, or refusal to
renew the casino license, the imposition of license
conditions, referral of a matter for legal action, assessment
of civil penalties, and "other action authorized or permitted
by the Act." N.J.A.C. 19:53-6.11.
5
II.
With the legislative and regulatory background
established, we turn to the facts. In July 1994 Karl Schurr,
a white male resident of New Jersey, sought a position as
a light and sound technician at Resorts in Atlantic City,
New Jersey. Schurr had worked at Resorts in a number of
full-time jobs from 1974 until 1986 when he resigned in
order to enter the restaurant business. After June 1986
Schurr continued to work for Resorts on occasion as a
"casual" worker2 on an"as needed" basis.
In late 1993 a full-time light and sound technician at
Resorts was suspended. While arbitration proceedings
relevant to this suspension were pending, Schurr, still
working as a casual employee, filled in for the suspended
employee on a regular basis. In early July 1994, the labor
arbitration was concluded and the full-time technician's job
became available. Five people, including Schurr, applied for
the job.3 Bill Stevenson, Resorts' Director of Show
Operations and Stage Manager, narrowed those under
consideration to Schurr and Ronald Boykin, a black male
who was also employed as a casual worker at Resorts. Both
Stevenson and his direct superior, Robert Chambers,
believed that each of the applicants was qualified for the
open position. Stevenson viewed the two as equally
qualified. Acting pursuant to what he believed was required
by the Resorts EEBOP, Stevenson hired Boykin. Stevenson
stated that under the EEBOP, the "technician"
classification was underutilized as of October, 1993, i.e.,
the percentage of minorities in the technician category was
22.25%, but the goal established by the Casino Control
Commission regulations was 25%. Stevenson stated that he
_________________________________________________________________
2. A casual employee is defined in the union contract between Resorts
and the International Alliance of Theatrical State Employees as "an
employee required to supplement specific classification in the normal
house crew on an intermittent basis."
3. At about the same time, Schurr also applied to Resorts for a position
as an apprentice mechanic. Schurr's complaint alleged reverse
discrimination in Resorts' failure to hire him for this position as well.
The District Court found that Schurr failed to establish a prima facie
case with respect to this position. Schurr does not appeal that portion of
the District Court's ruling.
6
believed that in an underutilized category, for which there
were two equally qualified applicants, he was obligated to
hire the minority applicant. Chambers, Stevenson's
superior, also believed that Resorts was obligated to hire
the minority candidate if one of the two qualified applicants
for a position was a minority and Resorts had failed to meet
state goals in the relevant category.
After learning that he had not been hired for the full-time
technician position, Schurr continued to work as a casual
employee at Resorts and at other Atlantic City casinos.4 In
January 1995 Schurr filed a charge of discrimination with
the New Jersey Division of Civil Rights and the EEOC
alleging discrimination on the basis of race. He received a
notice of right to sue on May 7, 1996, and on July 8, 1996,
Schurr filed this action.
On January 13, 1997 the parties consented to dismissal
with prejudice of all of Schurr's claims against the
Commission, and to dismissal of the section 1983 claim for
monetary damages against the Commission Chairman.
Following the close of discovery, the parties filed motions
for summary judgment. In an order dated June 30, 1998,
the District Court entered an order granting the motions
filed by Resorts and the Commission Chairman and
denying the motion filed by Schurr. This timely appeal
followed.5
_________________________________________________________________
4. In January 1996, Schurr became a full-time employee of another
Atlantic City resort. He continues to work at casinos as a casual
employee for extra income.
5. The District Court had jurisdiction pursuant to 28 U.S.C. S 1331. We
have jurisdiction pursuant to 28 U.S.C. S 1291. Our review of an order
granting or denying a motion for summary judgment is plenary. Johnson
v. Horn, 150 F.3d 276 (3d Cir. 1998). We apply the same test as that
used by the District Court. We must be satisfied that there is "no
genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). All
inferences are to be drawn in favor of the non-moving party. Krouse v.
American Sterilizer Co., 126 F.3d 494, 500 n.2 (3d Cir. 1997).
7
III.
We address first whether Schurr has standing to assert
claims against the Commission Chairman for declaratory
and injunctive relief. Schurr contends that his Fourteenth
Amendment equal protection rights were violated when the
Commission Chairman enforced the Commission's
regulations setting minority employment goals and
requiring that casino licensees implement affirmative action
plans designed to meet these goals: "Smith and the
Commission's actions in imposing employment goals in
Resorts' [EEBOP] and in approving and monitoring same,
directly resulted in Resorts' denial of the Light and Sound
Technician . . . position to Schurr." The District Court
granted summary judgment in favor of the Commission
Chairman, concluding that Schurr lacked standing to
pursue his claim.
The standing requirements embodied in the "case" or
"controversy" provision of Article III of the United States
Constitution mandate that in every case, the plaintiff be
able to demonstrate:
An "injury in fact"-- an invasion of a judicially
cognizable interest which is (a) concrete and
particularized and (b) actual or imminent, not
conjectural or hypothetical; second, [that] there [is] a
causal connection between the injury and the conduct
complained of -- the injury has to be "fairly trace[able]
to the challenged action of the defendant, and not .. .
the result [of] the independent action of some third
party not before the court." Third, [that] it [is] "likely,"
as opposed to merely "speculative," that the injury will
be redressed by a favorable decision."
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)
(internal citations omitted). Applying these standing
requirements to the facts of this case, the District Court
concluded, first, that Schurr did not suffer an "injury in
fact" within the meaning of Article III. In Northeastern
Florida Chapter of the Associated Gen. Contractors of
America v. City of Jacksonville, 508 U.S. 656, 666 (1993),
the Supreme Court determined that "the `injury in fact' in
an equal protection case of this variety is the denial of
8
equal treatment resulting from the imposition of[a] barrier
. . . ." Relying on this language, the District Court
concluded that the challenged regulations constituted
merely a means of "outreach" to minorities and women, and
did not constitute a barrier to others:
The Commission's affirmative action regulations in
general, and the minority and women employment
goals in particular [did] not erect a barrier to Schurr's
ability to compete fairly for the positions for which he
applied . . . . [T]he Commission's regulations mandate
that casino licensees reach out to women and minority
candidates, not that they prefer women and minorities
in actually making hiring decisions. Because Schurr
applied, and was seriously considered for the light and
sound technician job, he was not injured by Resorts'
failure to reach out to him . . . .
[T]he obvious thrust of the regulations is that . . . a
casino licensee should broaden the pool of applicants,
not that casino licensees should prefer minorities and
women to non-minorities and men in making hiring
decisions.
[N]o hiring preference appears on the face of or is
implied by the language of the regulations . . . .
Schurr v. Resorts Int'l Hotel, Inc., 16 F. Supp. 2d 537, 548-
49 (D.N.J. 1998). The District Court reasoned that because
the regulations merely required casino licensees to
"broaden the applicant pool by employing various outreach
efforts," they had not injured Schurr. Id. at 549.
The District Court also concluded that Schurr lacked
standing to maintain his claim against the Commission
Chairman because he failed to show a causal link between
the relevant regulations and Resorts' decision to hire the
minority candidate. "[T]here is only the most attenuated
relationship between the Commission's regulations and the
hiring decisions which allegedly injured or will injure
Schurr." Id. at 550. In the District Court's view, the
regulations at issue did not mandate a particular
employment decision:
[W]ith respect to the decision not to hire Schurr for the
light and sound technician job, Schurr's damage is
9
fairly traceable only to Resorts' actions in implementing
its affirmative action plan and Resorts' actions in
administering the plan through its employees....
Schurr's damage is not, however, traceable as far back
as the Commission's regulations.
Id. The Court concluded that:
The "links in the chain" between the Commission's
regulations and Schurr's alleged injury are "far too
weak as a whole to sustain" Schurr's standing.
Accordingly, I will grant Smith's Motion for Summary
Judgment and deny Schurr's Motion for Summary
Judgment on his section 1983 claim.
Id. (internal citation omitted.)
The District Court's standing analysis as to both injury in
fact and causation rested on its characterization of the
Commission's regulations: "[These] regulations specifically
do not authorize or encourage the use of preference in
hiring. Instead they specifically provide for other, much
more benign methods by which casino licensees may
expand the applicant pool." Id. at 549-50. According to the
District Court, "even the most casual review of the
Commission's regulations" reveals that "the obvious thrust
of the regulations is that, in order to improve the
representation of women and minorities . . . a casino
licensee should broaden the pool of applicants . . .." Id. at
549.
We disagree with the District Court's characterization of
the regulations. Our reading of both the Act and the
implementing regulations convinces us that the regulatory
scheme challenged here contemplates something beyond
"benign methods by which casino licensees may expand the
applicant pool." Id. at 550. The finding that the challenged
regulations are directed only at recruitment is inconsistent
with the language used in the regulations.
The regulations were drafted to prohibit discrimination by
"encouraging businesses to achieve a balanced
representation of employees at all levels of the work force,"
N.J.A.C. 15:32-1.1, and to ensure that "affirmative efforts
are made to recruit and employ" minorities, N.J.A.C. 19:53-
10
1.4 (emphasis added). Affirmative efforts are to address,
without limitation, all employment practices including:
(1) employment promotion, demotion or transfer;
(2) recruitment, recruitment advertising or postin g;
(3) layoff or termination;
(4) rates of pay and other forms of compensation o r
benefits;
(5) selection for training and upward mobility
programs; and;
(6) grievance procedures for, and disposition of,
complaints related to equal employment opportunity.
. . .
N.J.A.C. 19.53-4.3. If a casino licensee fails to meet the
established goal, the licensee is required to document its
good faith efforts to hire a qualified female or minority
candidate for the position. N.J.A.C. 19:53-4.3.
The broad language used throughout the regulations as
a whole undermines both the District Court's conclusion
that the scheme is addressed to recruitment alone and its
disposition of the standing issue on the basis of that
conclusion. We agree with the District Court that the
regulations do not mandate specific hiring decisions. We
are convinced, however, that in setting employment goals
for women and minorities, in monitoring compliance with
these goals, and in providing for sanctions if casino
licensees cannot demonstrate good faith efforts to comply
with those goals, the regulations were intended to influence
employment decisions generally and may, as here, affect
concrete decisions; for example, which of two equally
qualified job candidates will be hired.
This conclusion is supported by the testimony of the
Resort employees responsible for hiring under the EEBOP.
They testified that they believed that the regulations and
the EEBOP formulated and reviewed pursuant to those
regulations required that they hire the minority candidate
over Schurr. Given the candidates' comparable
qualifications, those responsible for hiring at Resorts were
unable to justify hiring Schurr where the technician job
11
category was underutilized. Furthermore, they did not want
to bear the administrative burden of having to do so. This
evidence supports the conclusion that the regulations set
employment goals, and place administrative pressure upon
casino licensees to meet these goals. The fact that the
regulations do not explicitly require minority hiring or
mandate a race-based decision is not dispositive of the
causation question.
Although it was decided under a somewhat different set
of facts, our causation analysis is guided by the discussion
set forth by our sister Court of Appeals for the Ninth Circuit
in Bras v. California Public Utilities, 59 F.3d 869 (9th Cir.
1995), cert. denied, 516 U.S. 1084 (1996). In Bras, the
court considered an equal protection challenge to a
California statute, the California Women and Minority
Business Enterprise Law, which required nongovernmental
contractors to meet minority participation goals. Pursuant
to this law, the California Public Utilities Commission was
directed to formulate goals for state utilities in the
procurement of goods and services from minority-owned
businesses. In 1988, the Commission promulgated an order
requiring each state utility to establish a "goal" specifying
that it would purchase at least fifteen percent of its utilities
requirements from minority firms.
In response to this Order, in 1991, Pacific Bell provided
a prequalification form to a number of architectural firms
from which it expected to receive proposals for future work.
This form required the firms to specify whether they were
certified as a minority or women enterprise. Bras submitted
its form, stating that it was not so certified. Because it was
not a minority enterprise, Bras was not selected as one of
the firms eligible to bid on Pacific Bell projects.
Bras filed suit in federal court alleging that the Law and
the Order violated the requirements of the Equal Protection
Clause. Bras also sought a permanent injunction
preventing the Commission from implementing the goals
provided for in the Law and the Order. The district court
dismissed Bras' claim for lack of standing.
On appeal, a majority of the Court held that Bras had
satisfied the standing requirements and should have been
12
permitted to pursue the request for injunctive relief.6 The
Court found that although the challenged Law and Order
set "goals" and not set-asides, they had the practical effect
of placing the Bras firm on unequal footing in competing for
business. According to the Court of Appeals, the"economic
reality" created by both the Law and the Order was the
requirement that California utilities adopt discriminatory
programs, or risk sanction. As a result, the Court held that
there was a connection between Bras' injury and
implementation of the Law and Order sufficient to satisfy
the causation element of the standing analysis.
We do not find any meaningful distinction between the
goals at issue in Bras and those challenged here. The
challenged goal-based regulations, like those at issue in
Bras, clearly have the practical effect of encouraging (if not
outright compelling) discriminatory hiring.
That employment goals may, in some circumstances,
create a classification based on race was also recognized by
the Court of Appeals for the District of Columbia Circuit in
Lutheran Church-Missouri Synod v. FCC, 141 F.3d 344 (D.C.
Cir.), reh'g denied, 154 F.3d 487 (D.C. Cir.), and reh'g en
banc denied, 154 F.3d 494 (D.C. Cir. 1998). There the
Court addressed the impact of the FCC's regulatory
_________________________________________________________________
6. The Bras court determined that the question of standing was
controlled by the Supreme Court's holding in Northeastern Florida
Chapter of the Associated Gen. Contractors v. City of Jacksonville, 508
U.S. 656, 666 (1993), and that the "injury in fact" associated with
minority preference programs is "the inability to compete on an equal
footing in the bidding process, not the loss of a contract." Bras, 59 F.3d
at 873. The court concluded that Bras satisfied this "injury in fact"
requirement by stating that he wanted to "reinstate" his eligibility to
bid
on Pacific Bell projects "in the future" and that he was "ready, willing
and able" to provide services to Pacific Bell. Id. at 873-74. Tracking
this
language, Schurr here asserts that he is "ready, willing and able" to work
at Resorts. As discussed infra, this allegation does not itself resolve
the
issue of whether Schurr has established a sufficiently imminent injury to
be entitled to forward-looking relief. That issue is governed by Adarand
Constructors, Inc. v. Pena, 515 U.S. 200, 211 (1995), a decision that
issued shortly after and was therefore not addressed in Bras. Moreover,
unlike the situation in Bras, the evidence in this case indicates that
Schurr has in fact been repeatedly subject to the challenged regulations,
without apparent adverse consequence.
13
requirement that radio stations adopt affirmative action
programs incorporating numerical goals, based on
population data, for hiring women and minorities. In
determining that goals similar to those at issue here
created minority preferences subject to equal protection
analysis, the Court of Appeals noted that the crucial point
is not whether the regulations required quotas, but rather
whether they obliged stations to grant some degree of
preference to minorities in hiring. Concluding that the
challenged regulations granted such a preference, the court
explained:
The entire scheme is built on the notion that stations
should aspire to a workforce that attains, or at least
approaches, proportional representation. . . . The very
term "under-representation" necessarily implies that if
such a situation exists, the station is falling short of
the desired outcome. The regulations pressure stations
to maintain a workforce that mirrors the racial
breakdown of their "metropolitan statistical area."
. . .
Although it was urged that . . . "goals" should be
treated differently than obligatory set asides . . . we do
not think it matters whether a government hiring
program imposes hard quotas, soft quotas, or goals.
Any one of these techniques induces an employer to
hire with an eye toward meeting the numerical target.
As such, they can and surely will result in individuals
being granted a privilege because of their race.
Lutheran Church-Missouri Synod v. FCC, 141 F.3d 351-52,
354.
However, our conclusion that the District Court erred
both in characterizing the regulations at issue and in
holding that Schurr failed to establish causation does not
mandate reversal, for there is another component of the
standing inquiry that is at issue.
Schurr's sole equal protection claim against the
Commission Chairman is for forward-looking declaratory
and injunctive relief. In order to have standing to challenge
future rather than past application of the regulation,
14
Schurr must allege that the setting of minority employment
goals for job categories within the casino industry "in the
future constitutes `an invasion of a legally protected interest
which is (a) concrete and particularized, and (b) actual or
imminent, not conjectural or hypothetical.' " Adarand
Constructors, Inc. v. Pena, 515 U.S. 200, 211 (1995)
(quoting Lujan v. Defenders of Wildlife, 504 U.S. at 560).
Under this standard, Schurr must demonstrate that he will
in the future be prevented from competing on an equal
basis with minority candidates; i.e., Schurr must show that
the employment goals embodied in the challenged
regulations will cause "imminent" injury. The District Court
held that Schurr failed to do so. Schurr, 16 F. Supp. 2d at
551. We agree.
Schurr's evidence in support of his claim that he is in
danger of imminent injury in fact supports the opposite
conclusion. For example, Schurr testified at his deposition
that since January 1996, he has held a full-time position as
an engineer at another casino. The engineering position
appears to be one covered by the challenged regulations
(under either the "professional" or "technician" category).
Schurr also testified that in addition to this full-time work,
he has obtained part-time casino work -- at Resorts as well
as at least five other casinos -- "filling in" for extra money.
The part-time work appears to be that of a technician. This
evidence indicates that since being denied the full-time
technician's job in 1994, Schurr repeatedly has been
subjected to the regulations, with no apparent adverse
effect.
In evaluating Schurr's evidence of imminent harm, we are
also mindful of what is not in the record. There is no
evidence of how frequently jobs for which Schurr is
qualified become available.7 There is no evidence of how
frequently Schurr must compete with women or minorities
for those jobs. There is no evidence as of whether Schurr
has been denied any other job for which he applied-- or
_________________________________________________________________
7. Such evidence is of obvious important to the imminence issue. For
example, Schurr testified at this deposition that he rarely works at "the
Sands" merely because "they don't do much." The challenged regulations
thus played no part in Schurr's inability to work at the Sands.
15
the reason for such denial. Nor is there any evidence of
whether any of the other casinos at which Schurr might
apply have met their relevant goals, or whether they, like
Resorts, consider the "goals" to mandate hiring preferences.
This record is therefore distinguishable from that in
Adarand, which supported a finding that Adarand had
established a threat of "imminent injury" necessary to
maintain its claim for forward-looking relief. The evidence
in Adarand included statistical evidence of how frequently
the relevant contracts came up for bid; evidence that
Adarand bid on every such contract in Colorado, and was
"very likely" to bid on future contracts; and evidence that
Adarand "often" had to compete against businesses certified
under the challenged program. Adarand, 515 U.S. at 212.
We also note the statement in Lujan that " `some day'
intentions" are insufficient to establish an imminent injury.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 564 (1992).
In sum, Schurr failed to make an adequate showing that
he is in danger of suffering imminent injury as a result of
the challenged regulations. Accordingly, we will affirm the
order of the District Court granting summary judgment in
favor of the Commission Chairman, limited in accordance
with our foregoing discussion.
IV.
We focus next on Schurr's claim that Resorts violated the
requirements of Title VII when it made race a factor in the
decision not to hire Schurr.
Because the District Court, after extensive analysis,
rejected Schurr's equal protection claim for lack of standing,8
it conducted only a cursory Title VII analysis.9 Generally,
_________________________________________________________________
8. Our decision with respect to Schurr's standing to pursue forward-
looking relief on his equal protection claim applies as well to any claim
for forward-looking relief under Title VII or the related statutes that
Schurr asserts.
9. For example, the District Court concluded the Commission's
affirmative action regulations were enacted to remedy a manifest
imbalance because it found the regulations set forth "employment goals
on a category by category basis" and "distinguishe[d] between skilled and
unskilled workers." But under Weber, a court determines whether a
manifest imbalance existed by examining the racial makeup of the labor
force.
16
courts of appeals should not decide the legality of an
affirmative action program in the absence of careful district
court analysis of the merits. In most cases, a district
court's analysis of why an affirmative action plan was
adopted and how the plan affects non-minorities is crucial
to thorough and effective appellate review of the plan. See
Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 277-78
(1986) (plurality opinion) (stating that in the absence of
district court's analysis an "appellate court reviewing a
challenge by nonminority employees to remedial action
cannot determine whether the race-based action is justified
as a remedy for prior discrimination"); In re Birmingham
Reverse Discrimination Employment Litig., 20 F.3d 1525,
1539-40 (11th Cir. 1994) (stating that district court
findings of fact are "necessary" to appellate review and that
in their absence "appellate court has no basis upon which
to determine whether race-based action was justified as a
remedy"); Conlin v. Blanchard, 890 F.2d 811, 815 (6th Cir.
1989) (refusing to decide legality of affirmative action
program because, inter alia, district court did not make
findings of fact regarding past discrimination). In most
cases, therefore, the better course is to remand and
instruct the district court to conduct this analysis. But this
is an atypical case; here, the record on summary judgment
makes clear that Resorts' plan was not adopted to remedy
a manifest imbalance in traditionally segregated job
categories. Accordingly, based on that record, we will
assess whether Resorts' plan violates Title VII.
The terms of Title VII are violated when an employer
takes action "to discriminate against any individual with
respect to his compensation, terms, conditions, or privileges
of employment" or "to limit, segregate, or classify his
employees ... in any way which would deprive or tend to
deprive any individual of employment opportunities or
otherwise affect his status as an employee" on the basis of
"race, color, religion, sex, or national origin." 42 U.S.C.
S 2000e - 2(a). Although this language was initially
construed as absolute -- prohibiting all discrimination in
employment, see e.g. Johnson v. Transportation Agency,
Santa Clara County, 480 U.S. 616, 643 (1987)-- it is clear
now that in certain circumstances, race-based employment
17
decisions made pursuant to an affirmative action plan do
not run afoul of the statute.
We considered affirmative action efforts in the context of
a Title VII action in Taxman v. Board of Educ., 91 F.3d
1547 (3d Cir. 1996), cert. dismissed, 118 S.Ct. 595 (1997).
There, we cited the Supreme Court's decision in United
Steelworkers v. Weber, 443 U.S. 193, 208 (1979), that:
"Title VII's prohibition against racial discrimination is not
violated by affirmative action plans which, first, `have
purposes that mirror those of the statute' and second, `do
not unnecessarily trammel the interests of the [non-
minority] employees.' " 91 F.3d at 1550. 10
In order to determine the purpose underlying Title VII, we
analyzed Supreme Court precedent in light of the plain
language of Title VII, and concluded that:
Title VII was enacted to further two primary goals: to
end discrimination on the basis of race, color, religion,
sex or national origin, thereby guaranteeing equal
opportunity in the workplace, and to remedy the
segregation and under-representation of minorities that
discrimination has caused in our nation's workforce.
Id. at 1556. We placed particular emphasis on the remedial
component of Title VII, finding it central to the Title VII
scheme:
The significance of [the] second corrective purpose
cannot be overstated. It is only because Title VII was
written to eradicate not only discrimination per se but
the consequences of prior discrimination as well, that
racial preferences in the form of affirmative action can
co-exist with the Act's antidiscrimination mandate.
Id. We then announced the following rule which now guides
our discussion of Schurr's Title VII claim and Resorts'
affirmative action plan: "Unless an affirmative action plan
has a remedial purpose, it cannot be said to mirror the
purposes of the statute, and, therefore, cannot satisfy the
first prong of the Weber test." Id.
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10. This two-prong test announced in Weber was reaffirmed in Johnson
v. Transportation Agency, Santa Clara County, 480 U.S. 616 (1987).
18
The parties in this matter agree that Schurr has
established a prima facie case of race-based employment
discrimination11 and that Resorts rested its decision not to
hire Schurr on the terms of its affirmative action policy.
Here, then, as was the case in Taxman, "The dispositive
liability issue ... is the validity of [Resorts'] policy under
Title VII." Id.
We have carefully reviewed the record in this matter and
are convinced that the affirmative action plan offered to
rebut Schurr's prima facie case lacks the remedial purpose
required by controlling precedent. In order to be
characterized accurately as remedial, an affirmative action
plan must be designed to correct a "manifest imbalance in
traditionally segregated job categories." Weber, 443 U.S. at
207. "The requirement that `manifest imbalance' relate to a
traditionally segregated job category `provides assurance
. . . that race will be taken into account in a manner
consistent with Title VII's purpose of eliminating the effects
of employment discrimination . . ." Johnson, 480 U.S. 650
(emphasis added).
Under our reasonable interpretation of this standard,
Resorts' affirmative action plan is deficient. The plan itself
and the regulations which mandate the plan were not
based on any finding of historical or then-current
discrimination in the casino industry or in the technician
job category; the plan was not put in place as a result of
any manifest imbalance or in response to a finding that any
relevant job category was or ever had been affected by
segregation.12 Indeed, the case now before us is an unusual
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11. We analyze Schurr's Title VII claim under the approach set forth in
McDonnell Douglas v. Green, 411 U.S. 792 (1973). When a plaintiff
establishes a prima facie case, the burden of production shifts to the
employer to show a legitimate nondiscriminatory reason for the decision.
The decision in Johnson, 480 U.S. at 626, establishes that one such
reason may be an affirmative action plan. If the employer is able to meet
this burden of production, the burden shifts back to the employee to
demonstrate that the nondiscriminatory reason offered is pretextual, i.e.
that the affirmative action plan is invalid.
12. Evidence that a manifest imbalance existed either before or after
Resorts enacted its plan would have sufficed. See Wygant v. Jackson Bd.
19
one in that there is no disagreement as to whether Resorts'
plan or the challenged regulations were intended to remedy
past or present discrimination. They were not. In a
deposition, Gustave Thomas, the designated Commission
representative, testified as follows:
Q: Now prior to issuing the employment goals
in the Commission's regs, did the
Commission itself ever practice
discrimination?
Thomas: No, not to my knowledge.
Q: Was there ever any finding that the state
had discriminated with regard to the various
job categories and the employment goals
pursuant to those categories issued by the
Commission regs?
A: Not to my knowledge.
Q: The casinos, from the inception of the casino
industry in Atlantic City, have always needed
to have the employment goals pursuant to
those categories issued by the Commission
rep?
A: That's correct.
The remainder of the record contains nothing to suggest
that the Act or the regulations promulgated pursuant to
that Act were drafted or enacted with an intent to remedy
any discrimination. The Commission does not contend
otherwise. On appeal, the Commission makes the following
statement relevant to the purpose underlying the Act and
the regulations:
_________________________________________________________________
of Educ., 476 U.S. 267, 291 (1986) (O'Connor, J., concurring);
Contractors Ass'n of Eastern Penna., Inc. v. City of Philadelphia, 6 F.3d
990, 1004 (3d Cir. 1993) (admitting post-enactment evidence); see also
Coral Constr. Co. v. King County, 941 F.2d 910, 921 (9th Cir. 1991)
(explaining that refusing to admit post-enactment evidence places
municipalities in the "dilemma of deciding whether to wait the months
necessary for further development of the record, risking . . . culpability
[to Blacks] due to inaction, or to act and risk liability [to Whites] for
acting prematurely but otherwise justifiably.")
20
The Legislature recognized that a once renowned
tourist area had become blighted and had been largely
abandoned by tourists. The Legislature was also aware
Atlantic City had and has a large minority population,
and sought to ensure that the job creation which
would accompany casino developments would benefit
all segments of the population.
This absence of any reference to or showing of past or
present discrimination in the casino industry is fatal. The
affirmative action plan relied on by Resorts in this Title VII
action is invalid under the first prong of Weber13 and
"cannot form the basis for deviating from the
antidiscrimination mandate of Title VII." Taxman, 91 F.3d
at 1563. Schurr, therefore, is entitled to summary
judgment on the Title VII claim.
V.
Our disposition of Schurr's Title VII claim dictates
reversal of the District Court's grant of summary judgment
in favor of Resorts on Schurr's claims based on the NJLAD
and on section 1981.
Analysis of a claim made pursuant to the NJLAD
generally follows analysis of a Title VII claim. We predicted
in Taxman that the New Jersey Supreme Court considering
an affirmative action plan in light of the NJLAD "would
follow the analytical directive of Weber and Johnson." 91
F.3d at 1564. The result under the NJLAD would, therefore,
be the same as that reached in our Title VII analysis.
Schurr is entitled to summary judgment on his claim made
under the NJLAD.
The result is similar with respect to Schurr's claim based
on 42 U.S.C. S 1981. While a valid affirmative action plan
serves as a defense to an action under section 1981, the
standard for evaluating the validity of a plan is identical to
the standard developed in Title VII cases. Setser v. Novack
_________________________________________________________________
13. Because we conclude that Resorts' plan fails the first part of the
Weber test, we do not address whether the plan passes the second part
of that test; i.e., whether it "unnecessarily trammel[s] the interests of
[non-minority] employees." Weber, 443 U.S. at 207-08.
21
Investment Co., 657 F.2d 962, 968 (8th Cir. 1981). In light
of our conclusion that the Resorts' affirmative action plan
was invalid for purposes of Title VII, we also conclude that
the plan cannot serve as a defense to Schurr's section 1981
claim. The grant of summary judgment in favor of Resorts
on this claim was, therefore, inappropriate. As the District
Court recognized, "In the Third Circuit, the elements of
employment discrimination under Title VII are identical to
the elements of a section 1981 claim." Schurr, 16 F.
Supp.2d at 556. Schurr was entitled to summary judgment
under Title VII and should have been granted summary
judgment on the section 1981 claim as well.
Because the District Court granted summary judgment in
favor of the defendants on the Title VII and related
statutory claims, it did not, of course, consider the question
of damages. Based on our holding in this matter, an
assessment of damages is required. As the record is
understandably devoid of evidence bearing on this
assessment, we will remand this matter to the District
Court for further proceedings.
VI.
We find that the District Court properly granted
summary judgment in favor of the Commission Chairman
on Schurr's equal protection claim and will, therefore,
affirm the Order of the District Court with respect to that
claim. We find that the District Court erred in granting
summary judgment in favor of Resorts on claims made
pursuant to Title VII, Section 1981, and the NJLAD, and
will direct that summary judgment be entered in favor of
Schurr on these claims. This matter will be remanded to
the District Court for consideration of damages under Title
VII and the related statutes.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
22