Joseph J. Ledoux v. District of Columbia Raymond J. Greene v. District of Columbia

REVERCOMB, District Judge,

concurring in part and dissenting in part:

The majority opinion focuses on a careful legal analysis of affirmative action principles enunciated by the Supreme Court. However, I cannot agree with the entire resulting application of those principles to the cases before the Court.

Appellants challenge the promotions of three black males and one female who were not promoted subject to the MPD’s own guidelines. 1 They were not recommended pursuant to full review of the MPD Selection Committee and the female applicant was not rated “exceptionally well-suited.” This ad hoc process which was utilized makes their promotions initially suspect. Instead of accepting the full committee’s original recommendation for promotion of eleven white and eight black males, the Assistant Chief contacted part of the Committee and directed them to increase the number of female and minority recommendations, and to assure that all commands were represented. See slip op. at 17-18, reprinted in R.E. 35-36. The additional names were proposed without consideration of the full selection committee although a memorandum stated the additional candidates had been chosen by unanimous vote of the committee, in keeping with the Department’s regulations. The record from the District Court reveals that this memorandum was inaccurate, which makes the MPD’s actions further suspect. See slip op. at 18, reprinted in R.E. 36.

Although the command representation of several promotees was taken into consideration, the members’ sex or race appears to have been a key factor in their advancement. Such factors may be regarded as a “plus” in promotion decisions. 2 However, these decisions must be based on a valid affirmative action plan. 3 The majority affirms the validity of the MPD’s plan under Title VII using the “manifest imbalance” test, and remands for further findings under the Constitution. 4 In upholding the plan under Title VII, the majority accepts the District Court’s reliance on evidence of sex and race composition imbalance between the Department’s overall upper echelons and the entire District of Columbia population between ages eighteen and sixty-five. See ante at 1295. 5 I agree with appellants that this reliance is faulty and makes the plan inherently invalid. Under the analysis presented in Johnson and Hazlewood, the relevant labor market for *1308 comparison is the pool of District of Columbia residents who have the qualifications or potential to be members of the MPD. Johnson, 107 S.Ct. at 1452, 1454; Hazlewood, 433 U.S. at 299, 97 S.Ct. at 2736. 6

On remand, the District Court should be directed to make further findings on the MPD’s actions based on a correct statistical comparison. The majority doesn’t require the District Court to use the relevant labor market for its analysis. Given this inherently faulty comparison basis, I dissent from the majority’s affirmance of the promotions under the first prong of the Title VII test, and the limited directives given to the District Court regarding findings using the first prong of the test under the Constitution. The present record does not support the Department’s actions under the scrutiny of either test.

Under the first prong of each test, there must be an adequate factual predicate justifying the use of affirmative action. Ante, at 1302. At a minimum, there must be a “conspicuous ... imbalance in traditionally segregated job categories.” Weber, 443 U.S. at 209, 99 S.Ct. 2730 .

It is notable that the MPD’s plan was designed to place “special emphasis where there is an obvious imbalance in the numbers of females and minorities employed in specific areas.” Defendant’s Trial Exhibit 9A; ante at 1294. The record reveals that at the time the promotees were recommended, these Detective Grade I positions were composed of three black males and three white males. This 50-50 racial composition does not appear to constitute a “conspicuous imbalance” in this job category. However, such a determination cannot be made without comparison to the relevant qualified labor market. Unless the correct labor market is utilized for comparison, the record also cannot support a conclusion that a manifest imbalance exists in the overall upper echelons of the Department. The Department’s actions may have been valid if the comparison to the labor market reveals an imbalance in minority representation. However, this conclusion cannot be reached absent more specific findings of the District Court.

Accordingly, I respectfully dissent from the portion of the majority’s opinion which remands the cases without a requirement of further findings using the qualified labor market.

. See General Order 201 at 7-14, reprinted in R.E. 73-80, providing for review of only outstanding candidates by full selection committee.

. Johnson, 107 S.Ct. at 1455.

. See generally, Johnson, 107 S.Ct. 1442 ; Weber, 443 U.S. 193 , 99 S.Ct. 2721 .

. Given the requirement of the Supreme Court in Lehman, 465 U.S. 1056 , 104 S.Ct. 1404 , 79 L.Ed.2d 732 (1984), that these findings must be made by the trial court, I concur that the District Court’s analysis calls for remand rather than reversal.

. The plan attempted to mirror D.C. Law 1-63, although this statute provides generally that minority and female representation should parallel the available District of Columbia work force. See D.C. CODE ANN. 1-507 (1981).

. Although Detective Grade I positions require seven years of MPD experience, this comparison figure is still more appropriate under the Supreme Court’s analysis, because it would take into consideration other prerequisites for MPD employment, e.g. age, height, education and background specifications. While these statistics may not be readily available, the Supreme Court emphasized in Johnson, in analyzing a voluntary plan which is similar to the plan in issue, the plan’s requirement of periodically acquiring data to accurately make the relevant comparison. 107 S.Ct. at 1447, 1454 .