Alan A. Peightal v. Metropolitan Dade County, Metropolitan Fire Department of Dade County

TJOFLAT, Chief Judge,

concurring in part and dissenting in part:

I agree with Judge Johnson’s conclusion that we should remand appellant’s equal protection claim to the district court for reconsideration in light of City of Richmond v. J.A. Croson Co., 488 U.S. 469 , 109 S.Ct. 706 , 102 L.Ed.2d 854 (1989). As Cro-son makes clear, equal protection challenges to affirmative action plans turn on detailed factual evaluations. We, as an appellate court, are ill equipped to make initial factual determinations. Therefore, I think it best that we remand appellant’s equal protection claim to the district court so that it may decide the merits of this claim. On remand, the district court, which previously resolved this case without the benefit of Croson, will be able to analyze the relevant facts extensively. In this way, we ensure that appellant’s claim receives full and fair adjudication.

I disagree, however, with the court’s decision to affirm the district court’s judgment for the appellee on the Title VII claim. The appellant established a prima facie case showing that the appellee took race into account in deciding not to hire him. See generally McDonnell Douglas Corp. v. Green, 411 U.S. 792 , 93 S.Ct. 1817 , 36 L.Ed.2d 668 (1973) (discussing prima facie showing). The appellee responded by demonstrating that it made this decision in compliance with its affirmative action plan. When “such a plan is articulated as the basis for the employer’s decision, the burden shifts to the plaintiff to prove that the employer’s justification is pretextual and the plan is invalid.” Johnson v. Transportation Agency, 480 U.S. 616, 626 , 107 S.Ct. 1442, 1449 , 94 L.Ed.2d 615 (1987). This case boils down to whether the appellee’s affirmative action plan is valid.

Under Title VII, an employer voluntarily may adopt an affirmative action plan to overcome the existence of a “manifest imbalance” in a traditionally segregated job category. Id. at 631 , 107 S.Ct. at 1451-52 . “In determining whether an imbalance exists that would justify taking sex or race into account, a comparison of the percentage of minorities or women in the employer’s work force with the percentage in the area labor market or general population is appropriate in analyzing jobs that require no special expertise.” Id. at 631-32 , 107 S.Ct. at 1452 . If the job at issue requires special qualifications, however, “the comparison should be with those in the labor force who possess the relevant qualifications.” Id. at 632 , 107 S.Ct. at 1452 . Additionally, a court must consider whether the plan, in its effort to overcome a manifest imbalance, “unnecessarily trammel[s]” the rights of those not benefitted by it (i.e., nonminorities and men). Id. at 637-38 , 107 S.Ct. at 1455 ; Steelworkers v. Weber, 443 U.S. 193, 208 , 99 S.Ct. 2721, 2730 , 61 L.Ed.2d 480 (1979). Applying this test, the district court concluded that the appellee’s affirmative action plan was valid. Accordingly, it rejected appellant’s Title VII claim.

In my opinion, the district court used a flawed methodology to conclude that there is a manifest imbalance between the percentage of minorities employed by appellee and the percentage of minorities in the relevant labor pool. In reaching this conclusion, “[t]he district court ... simply looked at the percentages of minorities of Dade County, and compared that with the percentages of minorities employed as firefighters in the Department, to decide whether the disparities justified an affirmative action program.” Ante Maj. op. at 1405 (opinion of Brown, J.). The court relied on general population figures because it found that firefighters do not pos *1412 sess special expertise. General population figures, however, only serve as a proxy for the qualified applicant pool from which the employer is hiring. Where evidence exists “showing that the figures for the general population might not accurately reflect the pool of qualified job applicants,” the value of such figures for evaluating the legality of an affirmative action plan is greatly diminished. International Bhd. of Teamsters v. United States, 431 U.S. 324 , 339 n. 20, 97 S.Ct. 1843 , 1857 n. 20, 52 L.Ed.2d 396 (1977); see also Croson, 488 U.S. at 501 , 109 S.Ct. at 725 (equal protection case). In such a case, the court should search for figures that more closely approximate the qualified applicant pool, instead of assuming that the racial composition of the population as a whole reflects the racial composition of the qualified labor pool. Cf. Wards Cove Packing Co. v. Antonio, 490 U.S. 642, 650 , 109 S.Ct. 2115, 2121 , 104 L.Ed.2d 733 (1989) (disparate impact case).

In the present case, the district court ignored evidence of the Dade County Fire Department’s minimum requirements for entry-level firefighters, particularly age restrictions. By failing to take these restrictions into account, the district court probably misstated — over or under — the imbalance, if any, between the percentage of minorities employed by the appellee and the percentage of minorities in the relevant (i.e., qualified) labor pool. A large segment of the Dade County population, to which the district court compared appellee’s work force, is no doubt ineligible for an entry-level position as a firefighter.

The district court should have compared the appellee’s work force to that segment of the general population of Dade County who qualify for work as entry-level firefighters. While I appreciate the difficulty, if not impossibility, in obtaining labor market figures that precisely identify the racial composition of the qualified applicant pool, the district court, at the very least, could have compared the appellee’s work force to those members of the general population of Dade County who fall within the qualified age group (for which figures are readily available). See Janowiak v. Corporate City of South Bend, 836 F.2d 1034, 1039-40 (7th Cir.1987); Hammon v. Berry, 826 F.2d 73 , 77 (D.C.Cir.1987) (denial of rehearing by panel) (“There should be no mistaking the correct benchmark in this case: the relevant labor force consists of persons 20 to 28 years of age in the Washington metropolitan area.”). 1

The proper course, then, is for us to remand the Title VII claim so that the district court may correctly decide whether there is a manifest imbalance between the racial composition of appellee’s work force and the racial composition of the qualified labor pool. By failing to take this course, the court today validates the district court's clearly erroneous methodology, at the risk of affirming an unlawful affirmative action plan and at the expense of appellant’s claim of racial discrimination. 2 *1413 Therefore, I respectfully dissent from the court’s decision to affirm the district court’s judgment concerning the appellee’s Title VII claim.

. Indeed, the Teamsters Court recognized the point I make here. In Teamsters, the employer argued that the general population figures "failed to show what portion of the minority population was suited by age, health, or other qualifications” to hold the job in question — line-driver trucking jobs. Teamsters, 431 U.S. at 342 n. 23, 97 S.Ct. at 1858 n. 23. The Court noted that this attack may undermine "the accuracy of the comparison between the composition of the company’s work force ... and the general population of the surrounding communities.” Id. In that case, however, the diminished value of the statistics was of no moment: the employer still could not explain why qualified minorities whom it did hire were overwhelmingly excluded from the higher paying line-driver jobs; "fine tuning of the statistics could not have obscured the ... ‘inexorable zero' ” of minority line drivers. Id. In our case, there is no "inexorable zero”; rather, at the time the appellee adopted its affirmative action plan, its work force was comprised of 11.8% African-Americans, 13.8% Hispanics, and 1.3% women. Thus, to judge the legality of this affirmative action plan correctly, it is imperative that we compare the employer’s work force to the qualified labor pool rather than the general population.

. The court also appears to have subjected appellant’s Title VII claim to the standard reserved for claims brought under the equal protection clause. See ante Maj. op. at 1410 (relying on "the principles of Wygant, Fullilove, and Bakke, ... and the strict scrutiny imperative of Cro-son ”); see also ante Maj. op. at 1405 n. 28 (opinion of Brown, J.). Were we writing on a clean slate, I might agree with this approach for analyzing Title VII claims involving the affirmative action plans of public employers. The Su *1413 preme Court, however, explicitly has rejected the argument that "the obligations of a public employer under Title VII must be identical to its obligations under the Constitution.” Johnson v. Transportation Agency, 480 U.S. 616 , 627 n. 6, 632, 107 S.Ct. 1442 , 1449 n. 6, 1452, 94 L.Ed.2d 615 (1987). Instead, the Court has held that Title VII claims are subject to a different legal standard than equal protection claims. Id.; see also Cunico v. Pueblo School Dist. No. 60, 917 F.2d 431 , 437-38 (10th Cir.1990). Thus, the court appears to have relied on an erroneous legal standard in resolving appellant’s Title VII claim. While this error does not affect the outcome here — because the court holds that ap-pellee’s affirmative action plan passes its strict scrutiny — the court’s approach is clearly at odds with Supreme Court precedent.