the event agreements and counseling letter adduced in this case are gender-neutral on their face.
(a) The Aftermath of the Battle Event Agreement
Alexander entered into an agreement with David Pridgeon, the commander of the 21st Georgia, to cast the Aftermath of the Battle event scheduled for August 19-20, 1989. The agreement called for a minimum of "10 members" to portray wounded Confederate soldiers and prisoners in a field hospital scene with a surgeon and some visiting civilians. Id. If desired, the 21st Georgia also could do some civilian impressions. They could have "six female members" portray "2 local farm women of Unionist sympathies; 2 visiting Northern ladies seeking loved ones in the Army of the Potomac; and 2 ladies of Southern sympathies from Jefferson County, Virginia seeking loved ones in Virginia regiments." Id. (emphasis added).
(b) The Torchlight Tour Event Agreement
Shortly after the Aftermath event and the Cook incident, Alexander and Pridgeon entered into an agreement to cast the Torchlight Tour, which was to be held on September 16, 1989. See Torchlight Tour Event Agreement (introduced as Alexander Depo. ex. 9). The agreement specified that the Park needed a "minimum of 15 members of the group to portray wounded and dead soldiers." Id. Like the Aftermath agreement, this agreement went on to permit some civilian impressions--a "maximum of 6 female members, 2 to portray local Unionist ladies helping with the wounded," etc. Id. (emphasis added).
Because the "female members" language refers to the gender of the participant rather than the gender of the character to be portrayed, it amounts to a gender-based classification with respect to the casting of civilian roles. The meaning of this language is plain not only in the weak sense that other possible interpretations are less plausible. It is plain in the strong sense that there are no other possible interpretations. Alexander has conceded as much. When given the opportunity to offer a different interpretation, he could not come up with one, saying only that the agreements were "poorly worded." See Alexander Depo. at 85.
While the agreements arguably are ambiguous on the question Of whether there was also a gender-based classification for military roles, one suspect classification is enough to trigger heightened scrutiny. Moreover, the counseling letter that Rambur sent to Pridgeon on March 7, 1990 clearly reveals that the Antietam administration interpreted the agreements as creating a gender-based classification for military roles as well.
(c) The Counseling Letter
In the letter, Rambur described "a pattern of less than satisfactory performance," including "things like showing up on the wrong weekend for an event and then not fulfilling your commitment for the scheduled event, showing up several hours late for training, failure to turn paperwork in on time, dirty weapons at inspections and failure to upgrade uniform impression to meet our standards." Rambur specifically pointed to the August 19, 1989 incident as his one example of deficient performance under Pridgeon's watch. Rambur said that while the event agreement called for "ten members to portray infantrymen and several of your females to do an impression of local women," he had brought "extra personnel . . . such as children and one female who wanted to do a fifer impression." (Emphasis added). Rambur said that while the 21st had potential and would not be dropped from the roster as yet, they were on probation.
Rambur's repeated references to the gender of the participant rather than the character role to be played reveals that his understanding of the language in the event agreements is consonant with their plain meaning. Even without this evidence of Rambur's subjective intent, the Court would still feel compelled to hold that the agreements create gender-based classifications for military as well as civilian roles. In this circuit, the interpretation of contracts is considered an issue of law, not fact, and thus cannot preclude summary judgment. Pennsylvania Avenue Development Corp. v. One Parcel of Land, 216 U.S. App. D.C. 131, 670 F.2d 289, 292 (D.C. Cir. 1981); see Antilles S.S. Co. v. American Hull Ins. Syndicate, 733 F.2d 195, 203-07 (2d Cir. 1984) (Newman, J., concurring) (collecting cases). Though the meaning of contracts is based on the parties' intent, it is the objective manifestations of that intent, strictly construed against the drafter, that are determinative--notwithstanding parol evidence of an alternate, subjectively intended meaning.
In light of the foregoing, the Court holds that the policy under attack is facially non-neutral. This raises a conclusive presumption of purposeful discrimination and a rebuttable presumption that this discrimination is unconstitutional. Defendant rested entirely on its categorical denial of purposeful discrimination and made no alternative argument that such discrimination would pass muster under Craig v. Boren. Had defendant made such an argument, the outcome of this case might well have been different. Whatever one might think of the wisdom of gender-based discrimination in casting Living History, it is not necessarily invidious or unconstitutional. The fit between the end of assuring that participants appear accurate with respect to the "identifiable physical characteristic" of gender, and the means of classifying roles according to gender, may be sufficiently tight to pass constitutional muster. If, for example, the overwhelming number of persons, male or female, who tried to disguise their gender for dramatic roles in Living History events could not do so effectively, gender would be a very close proxy for an important aspect of historical accuracy--namely, the respective roles of men and women in society. Though courts must be on their guard for justifications based on stereotypical notions, that would not appear to be the case here. A desire to portray history faithfully--in a way that reflects the respective roles of men and women in at a particular stage of social development--is not itself a product of the archaic and stereotypical notions upon which those roles were based. "The history of discrimination against women in the military is not on trial in this case." Feeney, 429 U.S. at 278.
The Court notes in passing that the agency charged with implementing Title VII of the Civil Rights Act of 1964, 42 U.S.C. sec. 2000e et seq., which is in many ways more strict than the Equal Protection Clause and its Fifth Amendment counterpart, provides that discrimination on the basis of a suspect characteristic is not invidious if "necessary for the purpose of authenticity or genuineness . . . e.g., an actor or actress." Equal Employment Opportunity Comm'n Guidelines, 29 C.F.R. sec. 1604.2(a)(2) (1992). But the Court need not pursue this inquiry further. The government having failed utterly to meet its burden of rebutting the presumption of invalidity that the documentary evidence raised, plaintiff is entitled to judgment as a matter of law under Craig v. Boren. Moreover, as the following analysis demonstrates, plaintiff is entitled to judgment under an Arlington Heights analysis as well.
The constitutional rule that emerges from Arlington Heights, Mount Healthy, Feeney, and Washington v. Davis is that a government official does not violate equal protection if: (1) No matter how severe the disparate impact, the official in fact was not motivated by presumptively impermissible sentiments; or (2) the official was partly motivated by presumptively impermissible sentiments, but the same decision would have been reached for neutral reasons by a decisionmaker who harbored no such sentiments.
There is some subtlety, however, in the way the burden of proof is allocated in a purposeful discrimination case. At the outset, the official action enjoys a presumption of validity, and plaintiff bears the burden of production as well as persuasion. But plaintiff does not have to make the ambitious claim that the official action was motivated "solely" by impermissible considerations, or even that such was the "dominant" or "primary" motivation. Indeed, to meet her initial burden of production, plaintiff need not even show that "but for" the presumptively impermissible sentiment, a different decision would have been reached--even though that is the ultimate constitutional test. Plaintiff only has to show that the decision was "motivated in part by [an invidiously] discriminatory purpose." Arlington Heights, 429 U.S. at 270 n.21 (emphasis added); see also id. at 266-67.
If plaintiff carries this burden, the presumption of validity is vitiated, a presumption of invalidity arises, and the burden shifts to the government to demonstrate that "the same decision would have resulted even had the impermissible purpose not been considered." Mount Healthy, 429 U.S. 285 at 285-87 ; Arlington Heights, 429 U.S. at 270 n.21; cf. Texas Dep't of Community Affairs. v. Burdine, 450 U.S. 248, 252-56, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981) (discussing burden shifting in Title VII cases). If the government does nothing, or cannot rebut the presumption by a preponderance of the evidence, plaintiff wins without having to confront the more difficult task of showing that presumptively impermissible considerations were a "but for" cause of the decision.
In evaluating a claim of purposeful discrimination, the Court must engage in a "sensitive inquiry" into whatever "circumstantial and direct evidence of intent as may be available." Arlington Heights, 429 U.S. at 266. But plaintiff must be able to point to something that is inconsistent with a completely neutral explanation for the official's decision or that otherwise evinces presumptively impermissible sentiments--here, that women cannot portray male soldiers regardless of the quality of their impression. This is because in proving subjective motivation, objective conduct that is "as consistent with [a] permissible" motivation "does not, standing alone, support an inference" of unconstitutional discrimination. See Matsuhita, 475 U.S. at 588 (conspiratorial motivation). There must be something more than equipoise to meet the burden of production, overcome the presumption of good faith, and shift the burden of proof to the government. To survive defendant's motion for summary judgment, plaintiff "must show that the inference" of gender-based discrimination "is reasonable in light of the competing inferences" of discrimination for neutral reasons--in this case, historical accuracy. See id.15 In Arlington Heights, the Supreme Court set forth a non-exhaustive list of indicia that an official action was motivated by presumptively impermissible considerations. "The impact of the official action--whether it 'bears more heavily on one race [or sex] than another'--may provide an important starting point. Sometimes a clear pattern, unexplainable on grounds other than race [or gender] emerges . . . even when the [law] appears neutral on its face." Id. (citation omitted); e.g., Gomillion v. Lightfoot, 364 U.S. 339, 5 L. Ed. 2d 110, 81 S. Ct. 125 (1960); Yick Wo, 118 U.S. 356, 30 L. Ed. 220, 6 S. Ct. 1064.
But where the pattern is less stark, or where there are plausible neutral reasons to account for it, "impact alone is not determinative" and cannot, by itself, support an inference of presumptively impermissible motivation. Arlington Heights, 429 U.S. at 266; see, e.g., Feeney, 442 U.S. 256, 60 L. Ed. 2d 870, 99 S. Ct. 2282 (upholding civil service preference for veterans despite the fact that 98% of the beneficiaries were male); Washington v. Davis, 426 U.S. 229, 48 L. Ed. 2d 597, 96 S. Ct. 2040 (upholding police entrance examination in spite of substantially higher failure rate for racial minorities). The court therefore must turn to other evidence.
[(1)] The historical background of the decision is one evidentiary source, particularly if it reveals a series of official actions taken for invidious purposes. . . . [(2)] The specific sequence of events leading up to the challenged decision also may shed some light on the decisionmaker's purposes. . . . [(3)] Departures from the normal procedural sequence also might afford evidence that improper purposes are playing a role. [(4)] Substantive departures too may be relevant, particularly if the factors usually considered important . . . strongly favor a [contrary] decision. . . . [(5)] the legislative or administrative history may be highly relevant, especially where there are contemporary statements by members of the decisionmaking body, minutes of its meetings, or reports. In some extraordinary instances the members might be called to the stand to testify concerning the purpose of the official action . . . .
Id. at 267-68 (citations omitted).
The Court will begin with the documentary evidence of discriminatory intent adduced in this case, which fits under the fifth, "contemporary statements" rubric. The Court will then proceed to analyze the evidence bearing on the remaining factors enumerated in Arlington Heights, and conclude with a consideration of other relevant evidence.
(1) Documentary Evidence of the Considerations Upon Which the Agency Action Was Based
In addition to establishing constructive purposeful discrimination under Craig v. Boren, the event agreements and counseling letter, discussed supra Section II-C, constitute compelling evidence of actual purposeful discrimination. They clearly reflect a gender-conscious state of mind on the part of Alexander, Chiles, and Rambur. This evidence is so overwhelming that it might well, by itself, entitle plaintiff to judgment as a matter of law under the Arlington Heights analysis, because it makes the remaining factual issue of whether the agency actors actually uttered what plaintiff alleges they uttered fade into immateriality. See 6 James W. Moore et al., Moore's Federal Practice, pt. 2, para. 56.15, at 56-268 (1992) (credibility determinations unnecessary where summary judgment "utilizes the effect of a legal presumption upon established facts; or is based . . . upon documentary evidence, or upon the opposing party's admissions"); e.g., White Motor Co. v. United States, 372 U.S. 253, 259-60, 9 L. Ed. 2d 738, 83 S. Ct. 696 (1963) (antitrust conspiracy) (some areas of law are so well developed that "where, as here, the gist of the case turns on documentary evidence," the actual intent and motives of the actors lose their materiality); Associated Press v. United States, 326 U.S. 1, 11-12, 89 L. Ed. 2013, 65 S. Ct. 1416 (1945) (same) (by-laws of defendant association were "in and of themselves contracts in restraint of trade," rendering unnecessary any other inquiry into the state of mind of the alleged conspirators); SEC v. Geyser Minerals Corp., 452 F.2d 876, 879-81 (10th Cir. 1971) ("documentary materials submitted" held "sufficient to sustain judgment as a matter of law" regardless of dispute over whether defendant in fact made certain oral representations); United States v. Beatrice Foods Co., 344 F. Supp. 104, 108 (D. Minn. 1972) (summary judgment against defendant appropriate where there was no dispute over the contents of certain documents, only over their legal characterization and effect), aff'd, 493 F.2d 1259 (8th Cir. 1974), cert. denied, 420 U.S. 961, 43 L. Ed. 2d 438, 95 S. Ct. 1350 (1975).
(2) Disparate Impact
In this case, plaintiff has adduced no statistical evidence of the relative impact of NPS-6 on men and women, either service-wide or at Antietam. This distinguishes this case from Arlington Heights, Yick Wo, Feeney, and Washington v. Davis. Since the object of the challenge is not the governing statute or regulation, a service-wide disparate impact analysis is not relevant. With respect to Antietam, the Court is left to speculate on the extent of the disparity in the impact of the park policy as between men and women. Plaintiff attempted to gather the statistics, but the Park Service keeps none. See Def's Resps. to Pl's First Set of Interrogs. no. 6. While the historical scenarios at the park obviously are male-intensive, there are a number of roles for female characters that men presumably do not fill. There is even one event at Antietam dedicated to the history of women disguised as men in the Civil War. Moreover, there is no way to know whether, assuming that no other women have ever portrayed soldiers at Antietam events--and that it was therefore akin to a "traditionally segregated job-category"--it would not be the result of official policy, but the fact that "because of longstanding social attitudes" and the difficulty of proper costuming, portraying Civil War soldiers "has not been regarded by women themselves as desirable work." Johnson v. Transportation Agency, 480 U.S. 616, 668, 94 L. Ed. 2d 615, 107 S. Ct. 1442 (1987) (Scalia, J., dissenting) (emphasis in original). Plaintiff has not shown that anyone other than she has ever been excluded--much less that there is a pool of qualified female applicants by which to measure the disparity of impact.
All of this is not to suggest that a plaintiff must present disparate impact evidence to prevail in a purposeful discrimination case, or even that a "consistent pattern" of discrimination is "a necessary predicate" to make out an equal protection violation. Arlington Heights, 429 U.S. at 266 n.14. "A single invidiously discriminatory governmental act" is enough. Id. It is simply that in the absence of such statistics, the Court is missing what could be rather telling evidence, and must move on to consider the other factors enumerated in Arlington Heights.
(3) Historical Background
Plaintiff repeatedly alludes to the complaint that Patricia Ann Lammers filed in 1982 under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., alleging discriminatory employment practices in the staffing of black powder firing demonstrations at Antietam. See Pl's Statement of Undisputed Facts no. 19, at 5; Pl's Consol. Reply Memo. at 10-11. It is true that the Lammers litigation is part of the historical background which, had the parties not settled the case, might have provided some evidence of past gender discrimination at Antietam that might be relevant under an Arlington Heights analysis. See Def's Resps. to Pl's First Set of Interrogs. para. 12, at 11-12; United States Dep't of the Interior, Settlement Agreement, CPA No. 82-07-173 (1983). But the settlement agreement contains no admission of discrimination, and surely no rational inference concerning the meritoriousness of a claim can be drawn from the mere filing of a complaint, or from the fact that the Department of the Interior agreed to settle the case. The agency may well have been "motivated by a desire for peace rather than . . . weakness of position." Advisory Committee on Proposed Rules, Note to Proposed Federal Rule of Evidence Rule 408, para. 1. Moreover, compromise and settlement is favored in the law, particularly in civil rights cases. Sears v. Atchison, Topeka & Santa Fe Ry., 749 F.2d 1451, 1454 (10th Cir. 1984), cert. denied sub nom. United Transp. Union v. Sears, 471 U.S. 1099, 85 L. Ed. 2d 840, 105 S. Ct. 2322 (1985). It ought not to be discouraged by using the fact of settlement as evidence of past discrimination in a subsequent action.
It is for very sound reasons then that Federal Rule of Evidence 408 precludes the Court from considering the Lammers litigation as evidence of a pattern or practice of discrimination, or even allowing it to color the court's view of the relevant evidence. Furthermore, as discussed in subsection (5) below, the anti-disparate impact provisos that the Lammers litigation gave rise to have limited relevance in this case. They speak to the rights of employees, whose careers and livelihood are at stake, and simply do not apply to the purely avocational volunteer program.
The rights of volunteers under the VPA are protected by the Constitution, not NPS-6 and Title VII.
(4) Procedural Irregularities
It is undisputed that there are also some irregularities in this case which, if unexplained, would constitute a departure from the normal procedural sequence" within the meaning of Arlington Heights, 429 U.S. 267 at 267-68. Alexander has stated that, for reasons of administrative convenience, he and Chiles have a policy of dealing only with unit commanders and never approaching individual volunteers to discuss perceived deficiencies in their impressions. See Alexander Depo. at 42. If they spot such deficiencies at an event, they might raise the matter with the unit commander as one factor in an overall review of that unit's performance after the event is over. Adverse action, if any, is taken against the unit and on the basis of its performance over the course of many events. Id. at 41, 44. Alexander could not cite a single instance where Antietam officials so much as approached an individual--much less excluded him or her from participation in an event--because of a deficiency in their impression. Id. at 43-44, 94-95, 100; Def's Resps. to Pl's First Set of Interrogs. para. 20, at 19.
This evidence suggests a focus on particularized, individual accuracy with respect to gender, but overall, unit accuracy with respect to other identifiable physical characteristics such as weight and age. But this arouses suspicion only if the reason that Chiles and Alexander approached plaintiff in the first place was because she was a "woman in uniform." The impetus behind the initial approach is thus a material fact. Alexander said in his deposition of November 19, 1991 that he was prompted to approach plaintiff for a reason totally unrelated to impression quality and that he was quite unaware of her gender at the time he set off for the parking lot. He explained:
It was brought to my attention by a number of volunteers and Park seasonal [sic] rangers that there was a reenacter [sic] with a weapon in the visitor center . . . area. This immediately caused me to believe that this was probably not one of our volunteers because it is generally known that volunteers do not bring weapons into the visitor center area. And . . . this was a medical weekend . . . [but] the scenario did not call for weapons . . . So my first assumption that this was a visiting reenactor [since] we occasionally have people that like to dress up and visit the Park in some sort of Civil War outfit and tour around, which is fine, however, they are asked to take their weapons, whether it is a bayonet and/or rifle and put it in their car, preferably lock it up in their trunk . . . .