(D.C. Cir. 1983) (Tamm, J., concurring). In this Circuit, the burden is on the defendant to show at the remedial stage of the litigation that the plaintiff would not have been selected for promotion in any event, if the liability inquiry results in a finding of specific disparate treatment against the plaintiff (as opposed to a finding of discrimination in the workplace at large). Defendants could easily meet that burden in these circumstances; however, plaintiffs' claims with respect to the DFC-Training promotion will not even proceed to the remedial stage, as the plaintiffs have failed to muster the prima facie case needed to move the liability inquiry forward.
3. Promotions of Joseph Kitt and Theodore Coleman - January, 1980
Plaintiffs' claims arising from the Kitt and Coleman promotions in January, 1980 remain before the Court.
As before, a suspicion of reverse discrimination can be drawn from the expressions of strong affirmative action sentiment within the Barry administration, see Lanphear v. Prokop, 703 F.2d at 1315.
Moreover, defendants concede that the plaintiffs were qualified for the promotions in question. The facts which precluded a prima facie case of discrimination with respect to the DFC-Training promotion no longer obtain: no evidence indicates that the plaintiffs were eliminated at an early stage of the selection process for purely nondiscriminatory reasons. As battalion fire chiefs, plaintiffs were among the group of eligible officers who could reasonably expect at least cursory consideration for promotion, and they were passed over in favor of officers Kitt and Coleman, both of whom are black. From these facts, plaintiffs have made a prima facie showing that their nonselection for promotion was a product of racial discrimination.
a. Effect of Race on Selection Process: Causation Inquiry
To rebut plaintiffs' prima facie case, defendants assert that the Kitt and Coleman promotions were not based on race, and even if they were, they are the products of legitimate affirmative action efforts. Setting aside for the moment defendants' alternative affirmative action defense, we turn first to the issue of whether and to what extent those responsible for the Kitt and Coleman promotions considered race in making their selections. By asserting that plaintiffs were rejected on account of factors other than race, defendants have satisfied their minimal burden of rebuttal and the case proceeds to the ultimate inquiry -- whether defendants impermissibly discriminated against plaintiffs by promoting Kitt and Coleman. See Aikens, 460 U.S. at 715; Cooper v. Federal Reserve Bank of Richmond, 467 U.S. 867, , 104 S. Ct. 2794, 2799, 81 L. Ed. 2d 718 (1984). Under Aikens, 460 U.S. at 716, and Burdine, 450 U.S. at 256, plaintiffs bear the ultimate burden of satisfying the relevant standard of causation.
The Court of Appeals for this Circuit has candidly acknowledged that "it is uncertain what standard of causation applies [at the liability phase] in Title VII discrimination cases." American Federation of Government Employees v. Federal Labor Relations Authority, 230 U.S. App. D.C. 243, 716 F.2d 47 (D.C. Cir. 1983). Various courts require that the plaintiff demonstrate that race was "a" factor in an employment decision, Satz v. I.T.T. Financial Corp., 619 F.2d 738, 746 (8th Cir. 1980); see also Toney v. Block, 705 F.2d at 1372 (Tamm, J., concurring); a "determinative factor", Mack v. Cape Elizabeth School Board, 553 F.2d 720 (1st Cir. 1977); a "significant factor", Fadhl v. City and County of San Francisco, 741 F.2d 1163, 1166 (9th Cir. 1984); a "substantial factor" in the employer's decision, Barnes v. Costle, 183 U.S. App. D.C. 90, 561 F.2d 983, 990-91 (D.C. Cir. 1977); or the "but-for cause" of the employment decision, Lewis v. University of Pittsburgh, 725 F.2d 910 (3d Cir. 1984), cert. denied, 469 U.S. 892, 105 S. Ct. 266, 83 L. Ed. 2d 202 (1985). See also Brodin, The Standard of Causation in the Mixed-Motive Title VII Action: A. Social Policy Perspective, 82 Colum. L. Rev. 292 (1982). For the reasons stated in Judge Tamm's concurrence to Toney v. Block, 705 F.2d at 1372-73, at this stage of the litigation this Court would require "merely proof that discrimination was a factor in the employment decision", id. at 1372 (emphasis added). However, even under the more rigorous tests catalogued above, there is no doubt of a causal link between defendants' consideration of race and the promotions of Kitt and Coleman.
Both Mayor Barry (at the May, 1980 meeting) and Elijah Rogers (at trial) testified that race was "a" factor in the selection of officers Kitt and Coleman for promotion. Rogers declined to admit that race was " the " factor, but even without that concession the record demonstrates that under any of the above standards of causation, Officers Kitt and Coleman were promoted because of their race. The evidence to support this conclusion is both direct and indirect. On a general level, the depth of concern in the Barry administration for minority upward mobility in early 1980 raises the suspicion that race weighed heavily in the Kitt and Coleman promotions. That concern is evidenced by the mandatory passage of affirmative action plans (labeled "equal employment opportunity" plans in the fire department); it is also seen in the tenor and agenda of the May, 1980 meeting. The suspicion is confirmed by the specific facts of the selection process at issue. Most compelling is the credible testimony of then-Assistant Chief Devine, a white, who indicated that the Barry administration was keenly aware of the racial balance at the department's highest levels and was prepared to offset his own promotion to fire chief with promotions of blacks to four openings near the top of the departmental hierarchy. Rogers has not credibly denied that his consideration of Devine was conditioned upon race-based promotions. By stating that he and Devine merely discussed black candidates for promotion, he does not begin to explain the fact that Devine reacted to their exchange by turning down the offer to become fire chief.
Devine testified that he refused the opportunity because he saw no place in the fire department for race-based promotions.
Objectively viewed, and without taking race into consideration, Kitt and Coleman appear to have been unlikely candidates for promotion in January, 1980. Compared to their fellow officers, they had relatively little experience as acting DFCs, having been given that designation only three months before their promotions. Both ranked behind plaintiffs and numerous others in terms of in-grade seniority, and there is no evidence that they possessed special objective credentials which might otherwise boost them above their peers. Tradition notwithstanding, Rogers was not bound to observe any particular objective criterion in making his selection, but even had he relied on subjective factors, he appears to have given little if any consideration to white candidates. Rogers claims to have considered and spoken with numerous officers in the selection process, but if he interviewed plaintiffs or any other white acting DFC (all of whom had served in that capacity longer than Kitt and Coleman) he cannot recall the occasion. Based on all the evidence, one conclusion is clear: race was "a" "substantial", "significant", "determinative" factor in the selection of Kitt and Coleman, and but for their race, those officers would not have been promoted over their white colleagues in January, 1980.
b. The Affirmative Action Defense
In a reverse discrimination case, a finding of race-based promotions is not equivalent to a finding of impermissible discrimination. If the challenged promotions are made pursuant to a legitimate affirmative action plan, there will be no violation of Title VII or section 1981. As an alternative defense, defendants assert that such is the case here. In light of plaintiffs' assertion that the affirmative action defense must be rejected out of hand, an overview of the precedent for defendants' argument is needed.
Courts applying the Burdine/Aikens formula to an affirmative action case agree that an employer may rebut a prima facie case of intentional race discrimination by producing evidence that its hiring decision is a consequence of a legitimate affirmative action program. The employer cannot simply point to a plan; he must show at least some evidence that the plan is permissible. See Johnson v. Transp. Agency, Santa Clara County, California, 748 F.2d 1308, 1310 n.2 (9th Cir. 1984); Warsocki v. City of Omaha, 726 F.2d 1358, 1360 (8th Cir. 1984).
In the public sector, an affirmative action plan must be measured against both constitutional and statutory yardsticks. See e.g., Hammon v. Barry, 606 F. Supp. 1082 (D.D.C. 1985). To satisfy the equal protection requirement implicit in the Fifth Amendment to the Constitution, see Washington v. Davis, 426 U.S. 229, 239, 48 L. Ed. 2d 597, 96 S. Ct. 2040 (1976); Buckley v. Valeo, 424 U.S. 1, 46 L. Ed. 2d 659, 96 S. Ct. 612 (1976), a public employer's race-conscious employment policy must be substantially related and reasonably tailored to the objective of remedying past discrimination, which discrimination has been found through direct or indirect means by a body (not necessarily a court) competent to make that finding. See Vanguards of Cleveland v. City of Cleveland, 753 F.2d 479, 484 (6th Cir. 1985) (review of proposed consent decree); Kromnick v. School District of Philadelphia, 739 F.2d 894 (3d Cir. 1984), cert. denied, 469 U.S. 1107, 105 S. Ct. 782, 83 L. Ed. 2d 777 (1985); Bratton v. City of Detroit, 704 F.2d 878 (6th Cir. 1983); see also Jacobs, Justice Out of Balance: Voluntary Race-Conscious Affirmative Action in State and Local Government ("Justice Out of Balance"); The Urban Lawyer, Vol. 17 No. 1 (Winter 1985) at 17-23. The leading test of reasonableness includes an assortment of factors, no one of which is determinative: whether whites are unduly stigmatized by the program, whether the program bears a substantial relationship to the remedy to be achieved, whether no other approach could achieve the same result in the foreseeable future and whether the plan does not "unnecessarily trammel" the interests of white employees. See Bratton v. City of Detroit, 704 F.2d at 888-890; Detroit Police Officers Ass'n v. Young, 608 F.2d 671, 694-96 (6th Cir. 1979), cert. denied, 452 U.S. 938, 69 L. Ed. 2d 951, 101 S. Ct. 3079 (1981); see also Justice Out of Balance at 19. These factors resemble and derive in part from the limits on voluntary affirmative action in the private sector set forth by the Supreme Court in United Steelworkers of America v. Weber, 443 U.S. 193, 61 L. Ed. 2d 480, 99 S. Ct. 2721 (1979). Under Weber, Title VII will permit private-sector voluntary affirmative action under the following circumstances, and perhaps others:
The plan does not unnecessarily trammel the interests of the white employees. The plan does not require the discharge of white workers and their replacement with new black hirees. Nor does the plan create an absolute bar to the advancement of white employees; half of those trained in the program will be white. Moreover, the plan is a temporary measure; it is not intended to maintain racial balance but simply to eliminate a manifest racial imbalance. [Citations omitted.]
Weber at 201. To the extent that the equal protection test which incorporates and adds to the Weber test is the stricter of the two, a public-sector affirmative action plan found to be constitutionally sound does not violate Title VII or section 1981. Bratton v. City of Detroit, 704 F.2d at 887; Britton v. South Bend Community School Corp., 593 F. Supp. 1223, 1229 (N.D. Ind. 1984) and cases cited therein.
These guidelines for assessing the validity of voluntary affirmative action plans are in no way affected by the holding of Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561, 104 S. Ct. 2576, 81 L. Ed. 2d 483 (1984). In Stotts, the Supreme Court faced the issue of
whether the District Court exceeded its powers in entering an injunction requiring white employees to be laid off, when the otherwise applicable seniority system would have called for the layoff of black employees with less seniority. Id. at 2585 (footnotes omitted).