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Alexander v. Estepp, 95 F.3d 312 (4th Cir. September 5, 1996)

Keywords: 42 U.S.C. Section 1981 and Section 1983 (affirmative action, race discrimination, sex discrimination, Equal Protection Clause, failure to hire)

Introduction: Six white men and one white woman brought suit pursuant to 42 U.S.C. Section 1981 and Section 1983 alleging that Prince George's County, Maryland (and certain officials) implemented an affirmative action plan which discriminated against them on the basis of race and sex in violation of the Equal Protection Clause of the Fourteenth Amendment.

The district court granted the defendants' motion for summary judgment. The Fourth Circuit affirms in part and reverses in part. It holds: (1) the fire department's affirmative action program is declared invalid because it is not narrowly tailored to achieve its goals; (2) further proceedings are necessary to determine whether one of the plaintiffs would have been hired but for the existence of the program; (3) the other plaintiffs were not denied employment because of their race or sex; and (4) the individual defendants are not entitled to qualified immunity.

Facts: Prince George's County (hereinafter, "County") chooses it firefighters as follows: (1) applicants are given both a performance and a written examination; (2) applicants who pass both are interviewed and then given a score based on the exams and the interview; (3) these applicants are then ranked into three "bands" - "Outstanding," "Well Qualified" or "Qualified." Within each "band," the applicants are further ranked based on seven different preferences. Two of the preferences involve whether the applicant has been a volunteer firefighter. But the County's Code permits preferences related to service as a volunteer firefighter to be eliminated if those preferences will have a disparate impact on a protected class. Sex and race are not amongst the other preferences.

The County's affirmative action program is not in writing. Each recruiting season fire department officials set informal caps on the number of whites and males who will be offered employment. Once the caps are reached, then a non-white or non-male applicant may be offered employment even though he or she is not the highest ranking applicant available. 

During 1993 none of the plaintiffs were adversely affected by the affirmative action program. During 1994 one male plaintiff and the female plaintiff were offered positions and accepted. The female plaintiff benefited from the affirmative action program. Out of the other male plaintiffs, only one did not receive a job offer because of the program. The remaining plaintiffs would not have received offers anyway.

Law:

1. All plaintiffs had standing to sue, even though some would not have been hired even in the absence of the affirmative action program. The plaintiff is entitled to compete on an equal footing and need not establish that he would have obtained the benefit but for the barrier in order to establish standing. Adarand Constructors, Inc. v. Pena, 115 S.Ct. 2097 (1995).

2. All racial classifications -- even those intended to benefit minority groups -- are subject to strict scrutiny. Adarand, 115 S.Ct. 2097. Therefore, an affirmative action program may be upheld only if it is narrowly tailored to serve a compelling government interest.

3. Even if the interests asserted by the County are compelling, the program is not narrowly tailored because less drastic means than outright racial classification were available. In particular, there was evidence that discriminatory attitudes in the fire department owe their origin to practices in the volunteer fire departments. However, the County did not avail itself of a less drastic solution, which would be to not give a hiring preference based upon past service in a volunteer fire department.

4. Furthermore, the evidence of past discrimination is discrimination towards African Americans and not other minority groups; and yet the program benefits other minority groups. This failure to match particular racial or ethnic preferences with particular acts of discrimination against particular racial or ethnic groups also shows that the program is not narrowly tailored. City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989).

5. Only the white male plaintiff who may have been denied employment because of the program, is entitled to any personal relief. His claim is remanded for a determination whether he was harmed by the program. All plaintiffs asserted that their ranking, itself, was suspect; but the court found insufficient evidence to support that assertion.

6. With respect to the qualified immunity question, the individual defendants are not entitled to immunity because in 1993 and 1994 reasonable administrators of local affirmative action programs should have been on notice that their programs were subject to strict scrutiny and must be narrowly tailored after the Supreme Court affirmed the Fourth Circuit's decision in J.A. Croson, supra, in which an affirmative action program was struck down. See also, Podberesky v. Kirwan, 956 F.2d 52 (4th Cir. 1992). By the 1994 hiring season two additional opinions were issued on the subject of affirmative action programs which should have put reasonable officials on notice.

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