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Shea v. Kerry

United States District Court, District of Columbia

May 10, 2013

WILLIAM E. SHEA, Plaintiff,
v.
JOHN F. KERRY, Secretary U.S. Department of State [1], Defendant

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For WILLIAM E. SHEA, Plaintiff: William E. Shea, LEAD ATTORNEY, Laredo, TX.

For JOHN KERRY, Secretary of State, in his official capacity, Defendant: Darrell C. Valdez, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC; William Mark Nebeker, U.S. ATTORNEY'S OFFICE, Civil Division, Washington, DC.

Royce C. Lamberth, Chief United States District Judge.

OPINION

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MEMORANDUM OPINION

Pro se plaintiff William Shea, a white career Foreign Service officer, brought this Title VII reverse discrimination action against the Department of State (" State" ). Compl., Mar. 3, 2002, ECF No. 1. When State hired Shea in 1992, State operated an affirmative action program that made qualified minorities eligible for direct placement into mid-level classes of the Foreign Service. Shea claims he would have been eligible for this mid-level placement program but for his race and still feels the effect of his entry at a lower pay grade--each paycheck is less than it would have been if he entered as a mid-level officer.

This case suffered a series of fits and starts, largely attributable to Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 127 S.Ct. 2162, 167 L.Ed.2d 982 (2007) and the Lilly Ledbetter Fair Pay Act, Pub. L. No. 111-2 (Jan. 29, 2009). Since Shea based his claim on the continuing effects of a discriminatory decision made in 1992, his claim was time-barred until passage of the Lilly Ledbetter Act. The substantive merits are finally ripe for consideration as the Court considers each party's motion for summary judgment. Under Title VII, Shea has the ultimate burden of proving that State's affirmative action plan was unlawful. Shea cannot support an essential element of his claim with admissible evidence. He tries to prove, via his own amateur statistics, that minorities were not significantly underrepresented in the Foreign Service mid-levels. Shea needs, and lacks, qualified testimony about the statistical significance of his findings. Therefore, State is entitled to summary judgment on Shea's remaining claims and this case will be dismissed with prejudice.

I. BACKGROUND

A. Factual Background

In 1985, Congress enacted the Foreign Relations Authorization Act, Fiscal Years 1986 and 1987 (" 1986-87 FRAA" ). Pub. L. 99-93. The 1986-87 FRAA directed State to " develop...a plan designed to increase significantly the number of members of minority groups and women in the Foreign Service." Pub. L. 99-93, Title I, § 152(a). Congress further directed that " each plan developed pursuant this section shall...place particular emphasis in achieving significant increases in the numbers of minority group members and women who are in the mid-levels of the Foreign Service." Pub. L. 99-93, Title I, § 152(b). Thereafter, State instituted the Mid-Level Affirmative Action Plan (" MLAAP" ) under its more general Mid-Level Foreign Service Career Candidate Program (" MLCCP" ). See Def.'s Statement of Facts Not in Genuine Dispute ¶ 3 (" Def.'s SMF" ), Aug. 17, 2012, ECF No. 120-1; Pl.'s Response to Def.'s Statement of Material Facts Not in Dispute 7-8 (" Pl.'s SMF Resp." ), Aug. 30, 2012, ECF No. 123-4 (only objecting to defendant's statement that MLAAP was " in response" to FRAA). Although white women were not qualified to participate in the MLAAP, State created the " Federal Women Programs" and the Federal Women's Program manager to develop and monitor programs aimed at greater female representation. Def.'s SMF ¶ 4; Pl.'s SMF Resp. (admitting Def.'s SMF ¶ 4).

In 1987, Congress enacted the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989 (" 1988-89 FRAA" ). Pub. L. 100-204. In the 1988-89 FRAA Congress found:

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[T]hat the Department of State and other Foreign Service agencies have not been successful in their efforts - (1) to recruit and retain members of minority groups in order to increase significantly the numbers of minority groups in the Foreign Service; and (2) to provide adequate career advancement for women and members of minority groups in the senior levels of the Foreign Service.

Pub. L. 100-204, Title I, § 183(a). Congress further required State to " substantially increase their efforts to implement effectively the plans required by" the 1986-87 FRAA and " ensure that those plans effectively address the need to promote increased numbers of qualified women and members of minority groups into the senior levels of the Foreign Service." Pub. L. 100-204, Title I, § 183(b). State revised the MLAAP in November 1990 and instituted its FY 1990-92 Mid-Level Affirmative Action Plan, which was in effect when Shea applied to, and was hired by, State. Def.'s SMF ¶ 9; Pl.'s SMF Resp. 10 (admitting Def.'s SMF ¶ 9).

Mid-level hiring allowed State to hire a Foreign Service candidate directly into a higher grade, rather than into an entry-level grade. Under the general mid-level hiring program, a candidate with the requisite experience could enter as a mid-level hire if State received a " certification of need" that State required an outside hire at that grade and with those qualifications. The Mid-Level Affirmative Action Plan dispensed with the " certification of need" requirement in favor of self-identification as American Indian, Alaskan Native, Asian and Pacific Islander, Hispanic, or African American. State required all candidates for mid-level hiring--both minority and non-minority--to (a) have substantial professional experience, (b) receive a passing grade on an oral examination, and (c) pass a background check. In February 1993, State ended the mid-level affirmative action program, but kept in place its more general mid-level hiring program. Def.'s SMF ¶ ¶ 10, 12-17; Pl.'s SMF Resp. 10-11 (admitting in all relevant respects Def.'s SMF ¶ ¶ 10, 12-17).

In September 1990, William Shea--a white male of Irish descent--submitted an application to the Foreign Service. Shea never applied for mid-level placement through the general Mid-Level Foreign Service Career Candidate Program. In May 1993, State hired Shea as an entry-level career Foreign Service Officer; he came in at grade FS-05, step 5. [2] Shea knew at the time he was hired that qualified minorities could start at higher grades, and that two people in his introductory class were starting at mid-level grades due to their participation in a minority mid-level hiring program. Shea did not file an administrative grievance until July 11, 2001--nine years after he entered the Foreign Service. Def.'s SMF ¶ ¶ 20-23, 26, 37; Pl.'s SMF Resp. 13-16 (admitting Def.'s SMF ¶ ¶ 20-23, 26, 37).

In his Complaint, Shea alleged that he would have passed the screening process of the MLAAP, but was excluded from consideration solely because of his race. Specifically, Shea alleged harm because his hiring at entry-level rather than mid-level grade has subjected him to lower pay and fewer promotion opportunities than members of minority groups admitted under the MLAAP, in violation of his rights under Title VII. See Compl. ¶ ¶ 1-2.

B. Procedural Background

On July 11, 2001, Shea filed a grievance with the State Department asserting,

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among other things, racial discrimination in violation of Title VII because of the disparate pay he was receiving. See Def.'s SMF ¶ 37; Pl.'s SMF Resp. 11 (admitting Def.'s SMF ¶ 37); Compl. ¶ ¶ 1-2. On January 30, 2002, Shea received the decision of the Foreign Service Grievance Board dismissing Shea's complaint for lack of jurisdiction. Compl. ¶ 2. Having exhausted his administrative remedies, Shea filed suit in this Court on March 26, 2002. His Complaint raised a Title VII challenge to the MLAAP, claiming he was injured by continuing to receive a lower paycheck than he would had he been eligible for mid-level placement though the MLAAP.

The case was initially assigned to Judge James Robertson, who granted State's Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) because Shea's complaint and administrative grievance were untimely. Mem. & Order, Sept. 30, 2003, ECF Nos. 15 & 16. He found Shea's " complaint amounted to no more than allegations of discrimination in May 1992, when he started at a lower pay grade." Mem. 4, ECF No. 16. Judge Robertson held that each allegedly-diminished paycheck did not amount to a new, discrete discriminatory act that reset the clock for filing an administrative complaint. Id. at 3-4. Shea tried to rely on Anderson v. Zubieta, 180 F.3d 329, 336 U.S. App. D.C. 394 (D.C. Cir. 1999) and Bazemore v. Friday 478 U.S. 385, 106 S.Ct. 3000, 92 L.Ed.2d 315 (1986) " for the proposition that, every time he received a paycheck for less than it would have been had he not been discriminated against, he was 'discriminated against anew.'" Id. at 4. However, Judge Robertson found that these cases were " inapposite," because there was not a " 'discriminatory system in place,'" akin to those in Bazemore and Anderson. Id. ( quoting Niedermeier v. Office of Max S. Baucus, 153 F.Supp.2d 23, 29 (D.D.C. 2001)). Furthermore, Judge Robertson dismissed Shea's constitutional claims and his request for declaratory and injunctive relief. Id. at 4-5.

Shea then appealed the district court's ruling. See Notice of Appeal, Nov. 11, 2003, ECF No. 17. " While the district court dismissed all of his allegations on the pleadings--finding none stated a viable claim--Shea [sought] review of only one: i.e., that his pay and benefits are discriminatorily low because the State Department set his pay grade pursuant to a diversity program that disadvantaged him on account of his race (white) and ethnicity (Irish), in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § § 2000e et seq., and the Equal Protection component of the Fifth Amendment, U.S. CONST. amend V." Shea v. Rice, 409 F.3d 448, 449, 366 U.S. App. D.C. 178 (D.C. Cir. 2005). The court of appeals found that " Bazemore holds that an employee may recover for discriminatorily low pay received within the limitations period because each paycheck constitutes a discrete discriminatory act," id. at 455, reversed the district court's dismissal, and remanded for further proceedings, id. at 456.

While the case was on remand, the Supreme Court decided Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 127 S.Ct. 2162, 167 L.Ed.2d 982 (2007) and brought the D.C. Circuit's analysis into doubt. Judge Robertson denied State's subsequent Rule 12(c) motion for judgment on the pleadings, but invited the parties to file for summary judgment after a fuller development of the factual record. See Order, Aug. 30, 2007, ECF No. 43. After the parties filed cross-motions for summary judgment, Judge Robertson found that Ledbetter effectively overturned the D.C. Circuit's prior analysis. Shea v. Rice, 587 F.Supp.2d 166, 168-69 (D.D.C. 2008). He stated that Shea's argument " cannot be successfully distinguished from the 'paycheck accrual rule' that Ledbetter

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argued for and that the Supreme Court rejected." Id. at 169. Bazemore could not save Shea because State did not engage in any " fresh discrimination" or continue a discriminatory system during the limitations period; it was undisputed that State ended its mid-level affirmative action program in 1993. Id. at 169-70. Therefore, Judge Robertson granted State summary judgment.

Shea again appealed the dismissal of his case. See Notice of Appeal, Nov. 23, 2008, ECF No. 65. While Shea's appeal was pending, Congress passed the Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, 123 Stat. 5 (2009), which abrogated the Supreme Court's holding in Ledbetter. The D.C. Circuit remanded for reconsideration in light of this intervening change. Shea v. Clinton, No. 08-5491, 2009 WL 1153448, at *1 (D.C. Cir. Apr. 2, 2009).

On remand, Judge Robertson reconsidered the parties' summary judgment motions, examining arguments he did not reach earlier because he had disposed of the case on other grounds. Mem. Order, Aug. 11, 2009, ECF No. 69. He rejected State's legislative immunity defense and found State did not have enough evidence to support a laches defense. Id. at 3-5. He then considered Shea's Title VII challenge to the MLAAP. He applied the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and considered Shea's claims under the affirmative action jurisprudence of United Steelworkers v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979), Johnson v. Transportation Agency, Santa Clara County, Cal., 480 U.S. 616, 107 S.Ct. 1442, 94 L.Ed.2d 615 (1987), and Hammon v. Barry, 826 F.2d 73, 264 U.S. App. D.C. 1 (D.C. Cir. 1987). Id. at 6-7. Judge Robertson stated that:

The government will be liable to Shea on account of the affirmative action program that was in operation at State more than fifteen years ago only if Shea can show (a) that the program was unlawful - meaning generally that it was not designed to cure a manifest imbalance in the workforce; (b) that, except for his race, Shea was qualified for the program; and (c) that Shea was damaged during the period of limitations by the continuing effects of the MLAAP.

Id. at 5-6. At that time, the factual record regarding the legality of State's affirmative action plan had not been well developed. Id. at 8. Therefore, Judge Robertson denied both parties' motions for summary judgment, id. at 11, and set a schedule for additional fact and expert discovery, see Scheduling Order, Sept. 23, 2009, ECF No. 73.

Several miscellaneous motions followed. First, State objected to the Court's treatment of the MLAAP as a voluntary affirmative action plan and requested reconsideration. See Def.'s First Mot. Reconsideration, Aug. 19, 2009, ECF No. 70. The Court denied this motion the next day. Order, Aug. 20, 2009, ECF No 71. On January 1, 2010, Shea filed his still-pending Motion for Summary Judgment, ECF No. 74. Thereafter, the Court allowed State to amend its discovery responses so State will not have been deemed to admit to several of Shea's factual claims. See Order Granting Def.'s Mot. for Leave to File, Feb. 2, 2010, ECF No. 78.

Judge Robertson retired in 2010, and the case was randomly reassigned to Judge Henry H. Kennedy on June 4, 2010. Reassignment of Civil Case, June 4, 2010, ECF No. 80. Less than a month later, the case was randomly reassigned to Judge Emmet G. Sullivan. Reassignment of Civil Case, June 30, 2010, ECF No. 83. Judge Sullivan extended all discovery until September 30, 2010. Minute Order, July

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6, 2010; Revised Scheduling Order, July 6, 2010, ECF No. 84.

Shea then filed a motion for reconsideration, challenging various aspects of Judge Robertson's prior rulings. Pl.'s Mot. Reconsideration, July 23, 2010, ECF No. 85. Shea also moved to hold discovery deadlines in abeyance until resolution of this motion. ECF No. 86. In response, Judge Sullivan stayed the entire matter until an April 6, 2011 status conference. Minute Order, Mar. 9, 2011. At that conference, he orally extended the stay indefinitely.

The parties continued to file motions during the stay. State filed a second motion for reconsideration, again arguing that Congress mandated the MLAAP and that it was error to subject it to the standards applicable to voluntary affirmative action plans. Def.'s Second Mot. Reconsideration, Apr. 5, 2011, ECF No. 93. Shea then filed a motion to apply judicial estoppel to bar State from submitting an opposition to Shea's still-pending motion for summary judgment. Pl.'s Mot. to Apply Judicial Estoppel, Nov. 7, 2011, ECF No. 106.

On October 11, 2011, the case was reassigned by consent to its fourth (and, perhaps, final) judge, Chief Judge Royce C. Lamberth. See Reassignment of Civil Case, ECF No. 105. Chief Judge Lamberth denied both parties' motions for reconsideration and Shea's motion for application of judicial estoppel, and lifted the stay on July 30, 2012. See Shea v. Clinton, 850 F.Supp.2d 153 (D.D.C. 2012); Shea v. Clinton, 880 F.Supp.2d 113 (D.D.C. 2012). The Court set a schedule for briefing on Shea's still-pending summary judgment motion and any cross-motion offered by State. See Mem. & Order 9, July 30, 2012, ECF No. 118.

On August 17, 2012, State filed a second Motion for Summary Judgment. ECF No. 120. This led to several more rounds of procedural motions and requests for extensions. See ECF Nos. 122, 125, 129, 132. After the Court settled these issues ( see ECF Nos. 137-39; Shea v. Clinton, 288 F.R.D. 1 (D.D.C. 2012)), the parties' motions for summary judgment were finally ripe for consideration on December 22, 2012. With discovery closed and a full briefing on the merits presented, the Court can finally consider the substantive merits of Shea's claim.

II. LEGAL STANDARDS

A. Summary Judgment

" The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The mere existence of any factual dispute will not defeat summary judgment; " the requirement is that there be no genuine issue of material fact." Anderson, 477 U.S. at 247-48 (emphasis in original). A fact is material if, under the applicable law, it could affect the outcome of the case. Id. A dispute is genuine if the " evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. Because " [c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge," the " evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255. A nonmoving party, however, must establish more than " the existence of a scintilla of evidence" in support of its position. Id. at 252. The inferences drawn from the evidence " must be reasonably probable and based on more than mere speculation." Rogers Corp. v.

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E.P.A., 275 F.3d 1096, 1103, 348 U.S. App. D.C. 352 (D.C. Cir. 2002) (citations omitted). The nonmoving party may not rely solely on allegations or conclusory statements. See Greene v. Dalton, 164 F.3d 671, 675, 334 U.S. App. D.C. 92 (D.C. Cir. 1999). The nonmoving party must present specific facts that would enable a reasonable jury to find in its favor. Id. If the evidence presented is " merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50.

In Celotex Corp v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), the Supreme Court held that, after " adequate time for discovery and upon motion," a court must enter summary judgment " against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Elaborating:

In such a situation, there can be " no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is " entitled to a judgment as a matter of law" because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.

477 U.S. at 322-23 ( quoting Fed.R.Civ.P. 56(c)). The Supreme Court meant " to disapprove a line of cases allowing a party opposing summary judgment to resist a properly made motion by reference only to its pleadings," id. at 325:

In cases...where the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the " pleadings, depositions, answers to interrogatories, and admissions on file." Such a motion, whether or not accompanied by affidavits, will be " made and supported as provided in this rule," and Rule 56(e) therefore requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the " depositions, answers to interrogatories, and admissions on file," designate " specific facts showing that there is a genuine issue for trial."

Id. at 324 ( quoting Fed.R.Civ.P. 56).

Rule 56 allows a party seeking or opposing summary judgment to " object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence." Fed .R. Civ. P. 56(c)(2). While at summary judgment the nonmovant " is not required to produce evidence in a form that would be admissible at trial," the evidence must be " capable of being converted into admissible evidence." Catrett v. Johns-Manville Sales Corp., 826 F.2d 33, 38, 263 U.S. App. D.C. 399 (D.C. Cir. 1987). " Because the objective of summary judgment is to prevent unnecessary trials, and because '[v]erdicts cannot rest on inadmissible evidence,' it follows that the evidence considered at summary judgment must be capable 'of being converted into admissible evidence.'" Akers v. Liberty Mut. Group, 744 F.Supp.2d 92, 96 (D.D.C. 2010) ( quoting Greer v. Paulson, 505 F.3d 1306, 1315, 378 U.S. App. D.C. 295 (D.C. Cir. 2007)). At summary judgment the Court cannot rely on " mere allegations or denials." Anderson, 477 U.S. at 256; see also 10A Wright, Miller & Kane, Federal Practice & Procedure § 2727 (3d ed. 2012) (" A judge may not resolve a summary-judgment motion by 'assumptions' about matters that have not been properly presented in the manner prescribed by the rule[.]" ).

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The filing of a cross-motion for summary judgment does not " concede the factual allegations of the opposing motion." CEI Washington Bureau, Inc. v. Dep't of Justice, 469 F.3d 126, 129, 373 U.S. App. D.C. 383 (D.C. Cir. 2006). Cross-motions for summary judgment are treated separately. See McKenzie v. Sawyer, 684 F.2d 62, 68 n.3, 221 U.S. App. D.C. 288 (D.C. Cir. 1982) (" The rule governing cross-motions for summary judgment...is that neither party waives the right to a full trial on the merits by filing its own motion; each side concedes that no material facts are at issue only for the purposes of its own motion." ). The court may--despite the parties' stipulations that there are no disputed facts--find material facts are in dispute, deny both motions, and proceed to trial. Id. at 1147 n.4.

B. Affirmative Action Plans Under Title VII

Title VII of the Civil Rights Act of 1964, as amended, prohibits employment discrimination on the basis of race, color, religion, sex, or national origin. 42 U.S.C. § § 2000e-2, 2000e-3. Title VII protects all Americans, including white men, from race-based employment discrimination. McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 280, 96 S.Ct. 2574, 49 L.Ed.2d 493 (1976). Nevertheless, the Supreme Court has repeatedly interpreted Title VII to allow " race-conscious efforts to abolish traditional patterns of racial segregation and hierarchy." Weber, 443 U.S. at 204; see also Johnson, 480 U.S. at 626. The Supreme Court has approved of affirmative action plans " designed to 'eliminate manifest imbalances in traditionally segregated job categories.'" Johnson, 480 U.S. at 628 ( quoting Weber, 443 U.S. at 197).

" The standard for determining whether affirmative relief is justified under Title VII is less stringent than under the Constitution." Stewart v. Rubin, 948 F.Supp. 1077, 1093 (D.D.C. 1996) (Lamberth, J.) aff'd, 124 F.3d 1309, 326 U.S. App. D.C. 337 (D.C. Cir. 1997). See also Johnson, 480 U.S. at 627 n.6 (" The fact that a public employer must also satisfy the Constitution does not negate the fact that the statutory prohibition with which that employer must contend was not intended to extend as far as that of the Constitution." ); cf. Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 273, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986) (applying strict scrutiny to constitutional challenge of affirmative action plan). Courts analyze Title VII challenges to affirmative action plans under the analytical framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). As the Supreme Court stated:

Once a plaintiff establishes a prima facie case that race or sex has been taken into account in an employer's employment decision, the burden shifts to the employer to articulate a nondiscriminatory rationale for its decision. The existence of an affirmative action plan provides such a rationale. If 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, 480 U.S. at 627. The plaintiff bears the ultimate burden of establishing the invalidity of the affirmative action plan. Id. Reliance on an affirmative action plan is not an " affirmative defense requiring the employer to carry the burden of proving the validity of the plan. The burden of proving its invalidity remains on the plaintiff." Id.

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In analyzing affirmative action plans under Title VII, courts consider: (1) whether the plan was justified by a " manifest imbalance" reflecting an underrepresentation of minorities or women in " traditionally segregated job categories" ; and (2) whether the plan was properly tailored to cure the disparity without unnecessarily trammeling the interests of non-minorities. Weber, 443 U.S. at 208. Statistically significant disparities between the percentage of minorities employed and the percentage of qualified minorities in the labor market can be strong evidence of a manifest imbalance. See Johnson, 480 U.S. at 633; Palmer v. Shultz, 815 F.2d 84, 91, 259 U.S. App. D.C. 246 (D.C. Cir. 1987). Writing for the Court in Johnson, Justice Brennan stated that a " manifest imbalance need not be such that it would support a prima facie case against the employer." 480 U.S. at 632; see also id. at 633 n.11 (" However, as long as there is a manifest imbalance, an employer may adopt a plan even where the disparity is not so striking, without being required to introduce the nonstatistical evidence of past discrimination that would be demanded by the ' prima facie ' standard." ); Stewart, 948 F.Supp. at 1094 (" Nor is a finding or admission of prior discrimination required in a Title VII case. Indeed, to adopt affirmative measures to resolve Title VII employment discrimination claims, the employer need not admit to any prior discrimination, nor point 'to evidence of an 'arguable violation' on its part.'" ( quoting Johnson, 480 U.S. at 630)).

Shortly after Johnson, Judge Kenneth Starr of the D.C. Circuit read Johnson as not eviscerating the existing " predicate of discrimination" requirement--an employer may only use affirmative action as a remedy for prior discrimination. Hammon, 826 F.2d at 74-75. Statistics showing an " egregious underrepresent[ation]" of minorities may give rise to an " inference of discrimination" by the employer. Id. at 75. Finding that the Johnson majority agreed with Justice O'Connor's statement that affirmative action is permissible under Weber " only as a remedial device to eliminate actual or apparent discrimination or the lingering effects of this discrimination," Johnson, 480 U.S. at 649 (O'Connor, J., concurring), Judge Starr held that " although an employer need not admit or prove that it had acted discriminatorily, evidence of the effects of its past or current discrimination is a prerequisite to lawful race-conscious employment decisions," 826 F.2d at 75 n.1.

In determining whether the affirmative action plan unnecessarily trammels the interests of non-minorities, courts focus on the nature of the plan--including whether the plan is temporary, whether it was intended to attain or maintain a racial balance, whether it imposes quotas, whether it requires the discharge of white employees, and whether it is over-inclusive. See, e.g., Weber, 443 U.S. at 208; Johnson, 480 U.S. at 636-40; United States v. Paradise, 480 U.S. 149, 182, 107 S.Ct. 1053, 94 L.Ed.2d 203 (1987); Stewart, 948 F.Supp. at 1095-96.

III. DISCUSSION

This case is eleven years old and on its fourth judge. The district court twice entered final judgment. Order, Sept. 30, 2003, ECF No. 15; Order, Nov. 21, 2008, ECF No. 64. The court of appeals twice reversed the district court and remanded for further proceedings. Judgment, Sept. 14, 2005, ECF No. 19; Mandate, Apr. 17, 2009, ECF No. ...


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