# Hammon v. Barry

> Court of Appeals for the D.C. Circuit · August 14, 1987 · 826 F.2d 73

URL: https://www.frixlaw.com/law-library/cases/7854828

## Case

- **Full name:** Marvin K. HAMMON United States of America v. Marion S. BARRY, Jr., Mayor, D.C. (Two Cases) Kevin Michael BYRNE United States of America v. Theodore R. COLEMAN, D.C. Fire Chief
- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** August 14, 1987
- **Citations:** 826 F.2d 73; 264 U.S. App. D.C. 1; 44 Fair Empl. Prac. Cas. (BNA) 869
- **Precedential status:** Published
- **Opinion:** Dissent by Mikva
- **Judges:** Mikva, Silberman, Starr
- **Cited by:** 15 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7854828

## How later opinions describe it (automated extraction)

- recognizing that the case of Johnson v. Transportation Agency, Santa Clara County, California, 480 U.S. 616, 107 S.Ct. 1442, 94 L.Ed.2d 615 (1987) involved the "inexorable zero" factor

## Opinion text

MIKVA, Circuit Judge,
dissenting:
I would grant the petition for rehearing; the original decision of the majority was wrong, and the majority’s instant defense of it is more so. The Supreme Court’s recent decision in Johnson v. Transportation Agency, Santa Clara County, California, — U.S. -, 107 S.Ct. 1442 , 94 L.Ed.2d 615 (1987), has ravaged the majority’s original opinion beyond repair.
The Johnson Court’s endorsement of the voluntary affirmative action plan of a public employer vindicates my earlier conviction that the District of Columbia’s affirmative action hiring plan for its Fire Department (the Plan) does not violate Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 -e et seq. (1982 & Supp. Ill 1985). Building upon the analytical framework introduced in United Steelworkers v. Weber, 443 U.S. 193 , 99 S.Ct. 2721 , 61 L.Ed.2d 480 (1979), the Johnson Court established a two-part inquiry which a court must make in determining whether a challenger has sustained his burden in proving that a voluntarily adopted affirmative action plan violates Title VII. See Ledoux v. District of Columbia, 820 F.2d 1293, 1302-03 (D.C.Cir. 1987). As I indicated in my original dissent in this case, the United States did not even begin to demonstrate the Plan’s illegality under this test. See Hammon v. Barry, 813 F.2d 412, 433-47 (D.C.Cir.1987). I write here, therefore, not to elaborate on my reasons for concluding that the Plan withstands Title VII (as well as constitutional) scrutiny. I write instead to spotlight the disturbing gerrymandering of the facts and distortion of the law in which the majority engages in order to appear to survive Johnson’s devastating blow. I pause first, however, to underline the substantial retrenching the majority has done since the panel opinion.
A. Constitutional Aspects of the Original Majority Opinion
Rattled by the realization of the United States’ dubious authority to pursue its constitutional challenge to the Plan, and wisely hesitant to enter that legal thicket, the majority recants any notion that its prior opinion was constitutionally-based. See Majority Opinion (Maj.Op.) at 76. This forswearing should not go unnoted. In employing constitutional principles to inform its prior Title VII analysis, the majority strongly suggested that the Plan violates the equal protection component of the Due Process Clause. In fact, the United States has argued that there is no need to rehear this case because whether or not the Plan can survive Title VII scrutiny after Johnson , it is still invalid for the constitutional reasons which this court delineated in its original opinion. Regardless of whether the majority meant to do so earlier, the court is now explicitly not holding the Plan unconstitutional.
It must be remembered that the majority did not confine its prior decision to the Plan before the court; the majority also heaped aspersions on the Affirmative Action in District Government Employment Act (D.C. *17 Law 1-63), finally concluding that the law’s admitted goal of attaining a racially balanced workforce is “constitutionally invalid.” Hammon, 813 F.2d at 431 . While the majority clearly still stands ready to use the law’s aspirations to impugn (unfairly) the District’s motives in adopting the Plan, see Maj. Op. at 79 n. 11, we must assume that the court has now retracted its earlier conclusion that D.C. Law 1-63 is constitutionally unsound.
Of course, once the constitutional underpinnings are removed and Johnson confutes the Title VII analysis, the question remains whether there is anything left to salvage of the majority’s original reasoning. In my view, the majority has inherited the wind.
B. Title VII Analysis Under Johnson
In its earlier decision, the majority also concluded that the statutory goal of a racially balanced workforce, as a ground upon which to support an affirmative action plan, “stands condemned by Title VII.” Hammon, 813 F.2d at 431 . The majority’s pronouncement itself stands condemned by Johnson . The affirmative action plan upheld by the Court in Johnson was based explicitly on “the long-term goal of a workforce that mirrored in its major job classifications the percentage of women in the area labor market.” Johnson, 107 S.Ct. at 1453-54 . The Court endorsed the public employer’s use of this aspiration as a “benchmark for measuring progress in eliminating underrepresentation” in its workforce. Id. at 1453 . Thus, long-term goals of attaining racial parity with the “area labor market or general population,” id. at 1452 , such as is expressed in D.C. Law 1-63, serve as valid support for affirmative action plans.
The majority’s insupportable assertion that D.C. Law 1-63 was “not merely aspirational, but to the contrary served as a guide for actual hiring decisions,” Maj. Op. at 80 n. 11, highlights the majority’s continued misrepresentation of the Plan. The majority steadfastly maintains the misconceived notion that the District designed the Plan’s racial “quota” to reflect the racial composition of the District’s workforce. The statistics themselves refute this contention: the percentage utilized by the Plan (60% black) does not “mirrorf ] almost exactly the percentage of blacks in the ‘workforce’ defined by D.C. Law 1-63.” Id. The Plan governs the Fire Department’s hiring in 1984 and subsequent years (until the list of eligible applicants from the administration of the 1984 test is exhausted). The percentage of blacks in the D.C. workforce in 1984 was 70%. (The majority inexplicably looks to the 1980 Census figures.) Had the District wanted to establish racial parity with the District’s workforce, it would have used this 70% figure in the Plan. The Plan’s actual figure — 60%—does not imitate the percentage of blacks in the D.C. workforce; it matches the percentage of blacks who passed the 1984 entry level exam. The Plan does not blindly direct the Fire Department to hire six blacks for every four nonminorities hired from now until perpetuity, as one might understand from reading the majority’s opinion. See, e.g., Maj. Op. at 79. The Plan addresses only the Department’s selection of firefighters from among those applicants who passed the 198 earn. The Plan states simply that the racial composition of each entering class hired from the 1984 test must reflect the racial makeup of the qualified applicants for the job, and since the District knew the exact number of qualified black applicants (the 1984 exam having been administered almost one year before the Plan’s submittal to the district court), the Plan states the relevant figure — 60%. Thus, while the Plan was intended to achieve compliance with D.C. Law 1-63 and to further statutory objectives, contrary to the majority’s understanding, this intention does not condemn the Plan under Title VII. See Maj. Op. at 79 n. 11. Attaining racial parity with the D.C. workforce remains the Department’s long-term goal, but it is just that — a long-term goal. Like the long-term goal of the affirmative action plan endorsed by the Supreme Court in Johnson , it is “merely a statement of aspiration wholly without operational significance.” Johnson, 107 S.Ct. at 1464 (O’Connor, J., concurring). The Plan’s short-term goal, *18 which is what we are reviewing in the instant case, is, like the plan at issue in Johnson , substantially more modest.
In attempting further to distinguish this case from Johnson , the majority distorts not only the facts of this case but also the law as enunciated by the Supreme Court. The majority implies that unless an affirmative action plan uses race only as one of numerous factors when evaluating qualified candidates — as a “plus” factor — the plan offends Title VII. See Maj. Op. at 79. Of course, this is clearly not true; contrary to the majority’s intimations, Title VII does not forbid “quota” plans. In Weber , the seminal Title VII affirmative action case which informed and guided the Court’s decision in Johnson , the Court sustained a quota plan. See Weber, supra (upholding plan requiring that blacks constitute 50% of new trainees). Indeed, the quota plan at issue in Weber established a minority set aside which far exceeded the percentage of blacks in the local labor force (39%). See Weber, 443 U.S. at 208 , 99 S.Ct. at 2729-30 . Not only did the Johnson Court not outlaw quota plans, but it explained that use of a quota system would only affect whether the plan needed an explicit end date. See Johnson, 107 S.Ct. at 1456 (“Express assurance that a program is only temporary may be necessary if the program actually sets aside positions according to specific numbers.”). See also Ledoux, supra, at 1302 . The Plan at issue in this case was indeed temporary; it was to last for 18 months, a factor which the District Court correctly interpreted as supporting the Plan’s lawfulness. See Hammon v. Barry, 606 F.Supp. 1082, 1093 (D.D.C.1985).
Despite the majority’s attempt to limit Johnson’s damage to the Title VII affirmative action jurisprudence espoused in its prior opinion, the majority’s construction of the law falls like a house of cards under the weight of the Supreme Court’s holding. The majority contends that Johnson squares with its previous declaration that Title VII requires a “predicate of discrimination” before an employer may adopt an affirmative action plan. See Maj.Op. at 80-81. Indeed, the majority asserts that the Johnson Court agreed that “evidence of the effects of [an employer’s] past or current discrimination is a prerequisite to lawful race-conscious employment decisions.” Id. supra at 75 n.1. This statement totally misapprehends the factual setting of Johnson . There was absolutely no evidence of past or current discrimination by the employer in Johnson ; in fact, the district court made an express finding that the employer had not discriminated in the past, and was not presently discriminating against women in regard to employment opportunities. See Johnson v. Transportation Agency, Santa Clara County, California, 770 F.2d 752 , 758 & n. 4 (9th Cir. 1984). For Title VII purposes, there need be no showing at all regarding the employer’s past or current discrimination, although such a showing certainly strengthens the employer’s justification for adopting an affirmative action plan. See Johnson, 107 S.Ct. at 1453 & n.11. The Court held in Johnson that it is sufficient for a public employer to show manifest statistical imbalance in its workforce to meet Title VII’s requirement that the employer’s affirmative action plan be remedial.
C. Application of Johnson to the Instant Case
Realizing that it can no longer censure the Plan based on its previous conclusion that there is no predicate of discrimination, the majority changes tacks and assails the statistics. The majority now concludes that no “manifest imbalance” exists in the racial composition of the District Fire Department. See Maj.Op. at 76-79. The court reaches this conclusion by the most incredible obliviousness to the essential facts and a wholly improper overriding of the District Court’s findings. There is a manifest imbalance in the racial composition of the Fire Department’s uniformed fireforce; there is a history of overt discrimination in the Department; there is evidence of recent discrimination, particularly regarding the disparate impact of the Department’s entry level exam. I recounted this evidence in detail in my previous dissent and will not reiterate it here. See *19 Hammon, 813 F.2d at 441-44 . I am constrained, however, to respond to several of the majority’s most recent fact-findings.
The majority’s “finding” of no manifest imbalance in this case hinges on its assertion that the percentage of blacks in the District’s fireforce should be compared to the racial composition of the “Washington metropolitan area,” contrary to the District Court’s explicit conclusion that this was not the appropriate benchmark for assessing minority representation in the Fire Department. Compare Maj.Op. at 77 with Hammon, 606 F.Supp. at 1091-92 . It is obvious why the majority must hang its hat on this reference point: if any other figure is used, there is clearly a manifest racial imbalance in the Department’s workforce. The majority’s new position is illgotten.
Use of the Washington metropolitan area as the statistical basis for measuring minority representation in the Fire Department is improper, and the District Court wisely rejected it. As the majority notes, this area, which includes the suburbs surrounding Washington, is less than 30 percent black. Presumably the same suburbanites that are free to seek jobs with the Fire Department are free to seek jobs with other departments of the District government. Yet, curiously, the percentage of blacks in the District government generally has always closely approximated the percentage of blacks in the District workforce. Not so with the Fire Department (or, for that matter, the Police Department); there, blacks have always been grossly underrepresented. From 1964 to 1969, for example, the percentage of blacks among the District’s total employees ranged from 50.3 to 60.7 percent respectively. Over the same time period, the percentage of blacks among uniformed firemen ranged from 14 to 19.2 percent respectively. More recently, in 1977, when D.C. Law 1-63 was passed, blacks comprised 67.4 percent of the District’s employees overall, but only about 27 percent of the fireforce. If the court were examining the minority representation of the District’s employees at large, there is no question that the Washington metropolitan workforce would not be the proper benchmark. See Payne v. Travenol Laboratories, Inc., 673 F.2d 798, 823-24 (5th Cir.), cert. denied, 459 U.S. 1038 , 103 S.Ct. 451 , 74 L.Ed.2d 605 (1982). It is quite obvious that there is no relationship bet the racial composition of the Washington metropolitan area and the racial composition of the District’s employees. One can imagine the Silver Spring or McLean fire departments using the black population of the District to enlarge its minority hiring base. But the literature does not record that happening. The proper reference is not the Washington metropolitan area, despite the fact that traffic and commerce flow freely from the District to Maryland and Virginia. And why the great distinction in minority representation between the Fire Department and the District government at large? Surely, much has to do with the Fire Department’s segregative practices, which continued into the early 1970’s; with the discrimination in recruitment and hiring, of which the Department was found guilty in 1972; with the use of the apparently invalid Test 21 during the 1970’s and, contrary to the majority’s unsupported assertion, its apparent use as a rank-ordered selection technique. See Hammon, 813 F.2d at 433-35 (Mikva, J., dissenting). All these practices had adverse effects on minority hiring. By cavalierly asserting that the Washington metropolitan area is the relevant labor market and then concluding that minorities are overrepresented in the Fire Department, the majority adds gratuitous insult to grievous injury.
The history of black representation in the District government generally and the distortion between those historical figures and the history of minority representation in the Fire Department suggest that the District workforce would serve as a more appropriate benchmark for assessing whether there is a manifest imbalance in the racial composition of the Department. The majority off-handedly rejects this benchmark without discussing the compelling evidence that something was very much amiss in the Fire Department’s hiring practices. See Maj.Op. at 78. Nor does the majority acknowledge that use of the local labor *20 force as a reference appears to comport with the Supreme Court’s analysis in Johnson. See 107 S.Ct. at 1446 , 1447 n. 4 (comparing the percentage of women in the county agency’s employ with the percentage of women in the general labor force of the county without inquiring whence the agency’s employees actually hail). As I observed in my dissent from the majority’s prior opinion, the imbalance is striking from this perspective: although blacks comprise over 65 percent of the local labor force, they comprise only 38 percent of the Department’s uniformed force. See Hammon, 813 F.2d at 441-42 .
In any event, the majority is unjustified in overturning the benchmark employed by the district court — the applicant pool — to which appellant, the Department of Justice, did not object below. See Hammon, 606 F.Supp. at 1091 . The Supreme Court .has explicitly endorsed the use of such an applicant pool as evidence of the relevant labor market. See Hazelwood School District v. United States, 433 U.S. 299 , 308 n. 13, 97 S.Ct. 2736 , 2742 n. 13, 53 L.Ed.2d 768 (1977). See also United States v. County of Fairfax, 629 F.2d 932, 940 (4th Cir.1980), cert. denied, 449 U.S. 1078 , 101 S.Ct. 858 , 66 L.Ed.2d 801 (1981). Since the early 1970’s, the applicant pool has consistently been well over 55 percent black. In 1980, it rose to 74.53 percent; in 1984, 64.6 percent of the applicants were black. Yet, as late as 1984, only 37 percent of the District’s fireforce was black. (In the 1970’s the percentage averaged about 25. See Hammon, 813 F.2d at 435 (Mikva, J., dissenting).) It is ridiculous for the majority to herald the number of blacks hired by the Department between 1981 and 1984. See Maj.Op. at 76. The District was doing what the majority now forbids it from doing. The District’s hiring during those years was directed by the District’s Office of Human Rights, which had found that the 1981 test discriminated against blacks and had ordered the District to hire all of the applicants who passed the test; obviously, the percentage of blacks hired would mirror the percentage of black applicants. In adopting the Plan, the District is trying to do the exact same thing with regard to the 1984 test — avoid discriminating against minorities. The majority commends the District for the results of its most recent hiring practices and then condemns it for the practice. That is as absurd as it sounds. A fair comparison of either the applicant pool (the benchmark used by the district court and accepted by the parties) or of the area workforce to the Department’s workforce reveals a manifest imbalance in the Fire Department’s uniform fireforce. While Judge Silberman’s statement mixes up the sources of the confusion, it matters not. Under either his “stock” or “flow” category, the imbalance is obvious. Both Judge Starr and Judge Silberman insist on using the one set of figures that does mix up the issue, namely, the percentage of new hires in 1984. That percentage is very high and very appropriate; it comes from the very plan that the majority strikes down. If Judge Starr and Judge Silberman think that percentage was such an admirable rate of hiring, I cannot understand why they want to keep the District from maintaining that level of hiring.
Under Johnson, such a manifest imbalance is a sufficient factual predicate to justify use of race-conscious employment practices. See Johnson, 107 S.Ct. at 1452 ; Ledoux , at 1302-03. But there is more evidence to support the District’s adoption of the Plan. Thus, the remedial predicate in this case is far stronger than that evidenced in Johnson. Although the majority protests that it will not bury its head in the sand, ostrich-like, see Maj.Op. at 78 & n. 8, it has buried its whole corpus in ignoring, if not trivializing, the evidence of unlawful discrimination in the Fire Department, with which the District Court was, in its own words, “intimately familiar.” Hammon, 813 F.2d at 435 (Mikva, J., dissenting) (citation omitted). The majority pretends that there have been happy times in the District’s Fire Department since the time of the Korean Conflict. Those black firefighters subjected to the Department’s humiliating overt discriminatory practices, such as separate beds and eating utensils, during the 1950’s, ’60’s, and ’70's; those black firefighters who instituted and won *21 their discrimination charges against the Department in 1972; those black firefighters who during the 1970’s, despite the fact that they had passed the entry-level exam, had to wait years later than nonminorities before being hired; those black applicants who experienced the District’s unlawful use of an unvalidated exam in 1981; and those black firefighters who brought suit in 1984 in order to ensure that the Department would hire its fireforce in a manner that did not discriminate against minorities — all those black firefighters might understandably not recognize the pretty picture the majority paints. They weren’t happy with the plantation, no matter how good the separate but equal food, no matter how comfortable the separate but equal sleeping facilities, no matter how seemingly well-intentioned the unequal hiring practices.
As a final point, I observe that the majority has wholly abandoned the second prong of Johnson’s two-part test. After intoning the inquiry it must make — whether the employer’s plan unnecessarily trammels the legitimate interests of nonminority employees, see Ledoux, at 1301 — the majority simply states that because the District failed to consider available race-neutral alternatives, it cannot pass this second hurdle. See Maj.Op. at 81. The district court specifically found that there were no such alternatives available. See Hammon, 606 F.Supp. at 1093-94 . We, as an appellate court, are in no position to engage in the fact-finding that would be necessary to overturn the lower court’s finding. The majority’s conclusion to the contrary is based primarily on an unsupported assertion made at oral argument. To the extent the majority located tests employed by fire departments that have been found valid for other jurisdictions, see Hammon, 813 F.2d at 429 n. 35, it cannot casually be presumed that the examinations are “portable” to the District. In any event, the majority’s reasoning is irrelevant to the inquiry the Supreme Court has directed it to conduct. The Johnson Court did not require that there be no race-neutral alternatives available before an employer may voluntarily adopt an affirmative action plan; in fact, there was no discussion whatever in Johnson of possible alternatives to the Santa Clara plan. The Court did list several factors that are relevant to the court’s inquiry, such as whether the plan creates an absolute bar to the advancement of nonminorities, is designed to attain (as opposed to maintain) racial balance, or deprives nonminorities of “legitimate firmly rooted expectation[s].” 107 S.Ct. at 1451, 1455 . See also Ledoux, at 1301 (noting that, among other things, “the type of preferential remedy chosen by the employer is critical in determining whether the plan is unduly burdensome”). The majority fails to consider any of these factors, all of which support the Plan’s lawfulness. See Hammon, 813 F.2d at 444-46 (Mikva, J., dissenting). Instead, the majority clings to a consideration which is not only unsound as a matter of fact, but, more importantly, totally irrelevant as a matter of law.
CONCLUSION
The Supreme Court’s opinion in Johnson makes it plain for almost all to see that the United States has failed to carry its burden in seeking to strike down the Fire Department’s Plan. The Plan is designed to rectify past patterns of discrimination and to remove artificial and unnecessary barriers to employment; it goes but a small way toward remedying the underrepresentation of minorities in the District’s uniformed fireforce by preventing the use of the 1984 entry level exam in a way that would discriminate against blacks. Despite the legitimate remedial purposes of the Plan’s short-term goals, and without a mention of the burden of the Plan might or might not place on the legitimate interests of nonminofity firefighters, the majority sees fit to strike down the District’s attempts to rid its Fire Department of the vestiges of discrimination. The “cheery” times the majority trumpets have not arrived; indeed, the majority’s opinion pushes them farther beyond the horizon. I dissent from the denial of the petition for rehearing.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7854828. Public record. Not legal advice.