"a legal conclusion rather than a fact." Pls.' Statement of
Material Facts as to Which There Exist Genuine Issues at ¶¶ 7, 8,
9. Therefore, while Plaintiffs assert that Defendant's statement
is "untrue," Plaintiffs decline to provide any record cites in
support of their position.
The Court fails to understand how statements such as "[t]he
FDIC Affirmative Action Plan does not require or endorse — and
FDIC does not use — any sort of `quotas'" could be construed as
a legal conclusion rather than a factual assertion. The Court can
only conclude that Plaintiffs have made a deliberate decision to
seek summary judgment on this count and have chosen therefore not
to allege the existence of disputed issues of material fact.
This Circuit takes the Local Rule 108 statement very
seriously as an aid to "decid[ing] motions for summary judgment
efficiently and effectively." Jackson v. Finnegan, Henderson,
Farabow, Garrett & Dunner, 101 F.3d 145, 150 (D.C.Cir. 1996).
"Requiring strict compliance with the local rule is justified
both by the nature of summary judgment and by the rule's
purposes." Id. (quoting Gardels v. CIA, 637 F.2d 770, 773
(D.C.Cir. 1980)). When counsel fails "to identify the pertinent
parts of the record, to isolate the facts that are deemed to be
material, and to distinguish those facts which are disputed from
those that are undisputed . . . he may not be heard to complain
that the district court abused its discretion by failing to
compensate for counsel's inadequate effort." Twist v. Meese,
854 F.2d 1421, 1425 (D.C.Cir. 1988).
Accordingly, even if the failure to identify in the record
the basis for Plaintiffs' disagreement with Defendant's
characterization of the affirmative action program was
inadvertent, rather than deliberate, the Court would still accept
Defendant's statement as true.
Plaintiffs have themselves filed a Local Rule 108 statement,
which does include record citations. Plaintiffs' statement
alleges, with appropriate record references, the following facts
about the FDIC's affirmative action plan:
1) the plan "and associated programs and policies are
race-conscious, and are intended to help women and minorities as
opposed to white males." Pls.' Statement of Facts as to Which
There is No Material Dispute at ¶ 2;
2) the program relies on "`action items,' the purpose of
which is to try to increase the representation of certain groups
in certain jobs." Id. at ¶ 4; and
3) the FDIC has never tried to increase the representation of
white men in any job series. Id. at ¶ 5.
Defendant has filed a properly supported response to this
statement. Defendant admits that the program has "action items"
where there is a manifest imbalance or conspicuous absence of
representation as compared to the civilian labor force. Defendant
denies that "action items" constitute, or lead to, quotas or
preferential treatment. Def.'s Resp. to Pls.' Statement of
Material Facts as to Which There is No Material Dispute at ¶ 4.
Defendant also denies that the affirmative action program is
intended to solely benefit women and minorities, but argues that
this fact is not material. Id. at ¶¶ 2, 5.
In support of their statement that the plan's "action items"
were intended to increase representation of "certain groups in
certain jobs," Plaintiffs cite to a portion of the Valentin
Deposition. Nothing in this portion of the record, however,
indicates that representation was to be increased through the use
of quotas or preferential treatment. If anything, the agency's
efforts seemed to be directed to discovering and eliminating
"artificial barriers" which resulted in under-representation of
specific groups in specific jobs. Valentin Depo. p. 33, 11.
Thus, there is nothing in Plaintiff's Local Rule 108
statement which undermines Defendant's statement that the FDIC's
affirmative action does not use quotas or
lead to preferential treatment. Accordingly, the Court will
accept as true Defendant's statement of material facts, but will
also credit the Local Rule 108 statement filed by Plaintiffs.*fn12
Defendant suggests that Plaintiffs lack standing to challenge
the affirmative action program. If the Court were to construe
Plaintiffs' Complaint as a challenge to how the FDIC recruits new
employees and trains its managers, then the Court agrees that
Plaintiffs would probably lack standing. The Court finds,
however, that Plaintiffs' Complaint is addressed to the alleged
effect of the affirmative program on promotion practices within
the FDIC. See 1st Am.Compl. at ¶ 85; Pls.' Reply Brief in Support
of Partial Mot. for Summ.J. at 11 ("[Plaintiffs] did not bring
this case to challenge the FDIC's external recruiting and hiring
practices. Plaintiffs have charged the FDIC with discriminating
against current white male employees, including themselves, and
that is what their evidence is directed against.").
The Court is satisfied that Plaintiffs have sought promotions
within FDIC and were not promoted. Plaintiffs' allegation is that
the affirmative action program made it more difficult for them to
get promoted, and the Court agrees that they have standing to
raise this claim. See Northeastern Florida Contractors v. City of
Jacksonville, 508 U.S. 656, 666, 113 S.Ct. 2297, 124 L.Ed.2d 586
(1993) (plaintiff challenging a set-aside program has standing if
it alleges a willingness to bid on contracts and that the program
prevents it from competing on an equal basis); Dynalantic Corp.
v. Department of Defense, 115 F.3d 1012, 1016 (D.C.Cir. 1997)
b. Standard of Review
Plaintiffs contend that the affirmative program should be
evaluated under the Equal Protection clause, and the strict
scrutiny which the Supreme Court has recently used in evaluating
government-sponsored race-based set-aside programs.*fn13 See Adarand
Constructors Inc. v. Pena, 515 U.S. 200, 227, 115 S.Ct. 2097, 132
L.Ed.2d 158 (1995); Richmond v. J.A. Croson Co., 488 U.S. 469,
493-94, 109 S.Ct. 706, 102 L.Ed.2d 854. (1989).
Defendant contends that the FDIC's affirmative program is
subject to the less stringent scrutiny associated with private
affirmative action programs which are voluntarily adopted under
Title VII. See Johnson v. Transportation Agency, 480 U.S. 616,
628-32, 107 S.Ct. 1442, 94 L.Ed.2d 615 (1987); United
Steelworkers v. Weber, 443 U.S. 193, 208, 99 S.Ct. 2721, 61
L.Ed.2d 480 (1979). In the alternative, Defendant contends that
the FDIC's affirmative action activities are so limited in scope
that they do not violate the Equal Protection Clause.
It is not entirely clear whether government agencies which
voluntarily adopt affirmative action programs are entitled to the
more generous standard of review of Title VII. See Stewart v.
948 F. Supp. 1077, 1095 (D.D.C. 1996) (Lamberth, J.) (noting issue but
finding it unnecessary to decide because settlement satisfied
both standards) aff'd 124 F.3d 1309 (D.C.Cir. 1997). Like Judge
Lamberth, this Court finds it unnecessary to decide the issue,
because the FDIC's affirmative action plan does not allocate
benefits on the basis of race or gender, and therefore does not
trigger strict scrutiny.
c. Constitutional requirements for non-set-aside
affirmative action programs
As noted above, the affirmative action activity by FDIC
consists of: (1) collecting data about the racial and gender
make-up of the FDIC workforce; (2) noting where dramatic
statistical disparities with the civilian labor force exist; and
(3) making efforts to reduce the disparities through monitoring
and elimination of artificial barriers, but without granting
preferential treatment to any person on account of race or
Courts have not found requirements to collect data about the
racial and gender make-up of a workforce to violate the
Constitution. See Caulfield v. Board of Education, 583 F.2d 605,
611-12 (2d Cir. 1978); United States v. New Hampshire,
539 F.2d 277, 280 (1st Cir. 1976). As the First Circuit said,
Statistical information as such is a rather neutral
entity which only becomes meaningful when it is
interpreted. And any positive steps which the
United States might subsequently take as a result
of its interpretation of the data in question
remain subject to law and judicial scrutiny.
United States v. New Hampshire, 539 F.2d at 280. Thus the Court
will consider whether the uses of the data here by FDIC give rise
to a constitutional violation.