95 F.

3d 312
71 Fair Empl.Prac.Cas. (BNA) 1279,
69 Empl. Prac. Dec. P 44,283, 65 USLW 2224

Marc ALEXANDER; Timothy Clark; George Frye; Robert A.

Moore; Angela Moore; Richard Saxberg; Josh
David Reedy, Plaintiffs-Appellants,
v.
M.H. ESTEPP, individually and in his capacity as Fire Chief;
Yvonne Tyler, individually and in her official capacity;
Prince George's County; Maureen Hennessy, individually and
in her official capacity; William H. Goddard, individually
and in his official capacity, Defendants-Appellees.
No. 95-2978.

United States Court of Appeals,

Fourth Circuit.
Argued June 5, 1996.
Decided Sept. 5, 1996.

ARGUED: Daniel F. Goldstein, Brown, Goldstein & Levy, Baltimore,

Maryland, for Appellants. Henry Robbins Lord, Piper & Marbury, L.L.P.,
Baltimore, Maryland, for Appellees. ON BRIEF: Joseph B. Espo, Lauren
E. Willis, Brown, Goldstein & Levy, Baltimore, Maryland, for Appellants.
Leonard E. Cohen, Ann L. Lamdin, Piper & Marbury, L.L.P., Baltimore,
Maryland; Barbara L. Holtz, Acting County Attorney, Sean D. Wallace,
Deputy County Attorney, Prince George's County, Maryland Office of
Law, Upper Marlboro, Maryland, for Appellees.
Before WILKINSON, Chief Judge, MICHAEL, Circuit Judge, and
MACKENZIE, Senior United States District Judge for the Eastern District
of Virginia, sitting by designation.
Affirmed in part, reversed in part, and remanded by published opinion.
Judge MICHAEL wrote the opinion, in which Chief Judge WILKINSON
and Senior Judge MACKENZIE joined.OPINION

MICHAEL, Circuit Judge:

The plaintiffs are six white men and one white woman who sought
employment as Prince George's County, Maryland, firefighters in 1993 and
1994. They sued fire department officials and the county under 42 U.S.C.
1981 & 1983, alleging that the department's affirmative action program
impermissibly discriminates on the basis of race and sex, in violation of the
Equal Protection Clause of the Fourteenth Amendment.1 The district court
granted the defendants' motion for summary judgment and denied the plaintiffs'
cross-motion for summary judgment.

We affirm in part the judgment of the district court, and we reverse in part. We
hold that (1) the department's affirmative action program is invalid because it is
not narrowly tailored to achieve its goals, (2) further proceedings are necessary
to determine whether plaintiff Josh Reedy 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 have not
established that they are entitled to qualified immunity.

I.
3

Prince George's County chooses its firefighters in the following manner.

Applicants must take a pass/fail performance examination and a written
examination. Those who pass both are interviewed. Each applicant is scored
based on his or her performance on the written examination and in the
interview. The department then groups the applicants into three "bands"-"Outstanding," "Well Qualified," or "Qualified"--based on their combined
scores. Within each band, applicants are ranked based on their "preference
level." A county ordinance requires that within the same band (Outstanding,
Well Qualified, or Qualified), firefighter applicants are to be hired in the
following order:

(1) Current county employees seeking promotions;

(2) Disabled military veterans;

(3) Non-disabled veterans who were volunteer firefighters;

(4) All other non-disabled veterans;

(5) All other former volunteer firefighters;

(6) Displaced homemakers not in any of the above categories;

10

(7) County residents not in any of the above categories;

11

(8) All other persons.

12

Prince George's County Code 16-162(d)(2)(i). The preferences for volunteer

firefighters ((3) & (5)), however, may be eliminated if the county's personnel
officer certifies in writing to the fire chief that continued use of the preference
"will have a disparate impact on a protected class as defined by the guidelines
of the Equal Employment Opportunity Commission." Prince George's County
Code 16-162(d)(4). Applicants within the same band who have the same
preference level are ranked on the basis of their combined examination and
interview scores. The department maintains a list of the applicants and their
total rank (based on band, preference, and score). This list is called the
"Applicant Register," and it is continually updated as new applicants apply and
existing applicants withdraw their applications.2

13

The mechanics of the department's affirmative action program have never been
committed to writing, but the record indicates that the program works in the
following manner. Each recruiting season fire department officials set informal
caps on the number of whites and the number of males who will be offered
employment.3 The department offers applicants employment in the order in
which they are listed on the Applicant Register, but once a cap is reached
(either for whites or for males), a lower ranking, uncapped applicant is offered
employment instead of a higher ranking, capped applicant.

14

The informal caps are imposed in an effort to meet affirmative action goals set
(in percentages) by the county. In the past the county's goals have tracked
Census data. In 1993 and 1994 the county set goals of having 18 percent of its
workers female and 39 percent nonwhite or Hispanic. Currently, 16 percent of
county protective services personnel (firefighters and paramedics) are female
and 38 percent are non-white or Hispanic. County officials have said that they
expect to increase the affirmative action percentage goals in order to track new
Census data expected to show increases in the county's minority population and
in the percentage of female participation in the workforce.

15

The plaintiffs complain specifically about the 1993 and 1994 hiring seasons. In

1993 the department offered employment to thirteen applicants. According to

the Applicant Register, none of the plaintiffs ranked better than fourteenth in
that hiring season. In 1994 the department offered employment to nine
applicants. Plaintiffs Marc Alexander and Angela Moore received and accepted
offers.4 Five other applicants accepted offers of employment. Plaintiff Josh
Reedy ranked eighth on the Applicant Register, but the department did not offer
him a job. The remaining plaintiffs ranked lower than ninth.
16

The plaintiffs sued seeking injunctive, declaratory, and monetary relief. The
district court rejected all of their claims and entered summary judgment in favor
of the defendants.5

II.
17

We believe that the department's affirmative action program, as it is currently

structured, cannot pass constitutional scrutiny, even though "[t]he unhappy
persistence of both the practice and the lingering effects of racial discrimination
against minority groups in this country is an unfortunate reality, and
government is not disqualified from acting in response to it." Adarand, --- U.S.
at ----, 115 S.Ct. at 2117.

18

All racial classifications--even those intended to benefit minority groups--are

subject to strict scrutiny. Id. at ----, 115 S.Ct. at 2111 (racial classifications are
"inherently suspect" and receive "a most searching examination") (citations
omitted); see also City of Richmond v. J.A. Croson Co., 488 U.S. 469, 109
S.Ct. 706, 102 L.Ed.2d 854 (1989). "Racial classifications are simply too
pernicious to permit any but the most exact connection between justification
and classification." Adarand, --- U.S. at ----, 115 S.Ct. at 2113 (quoting
Fullilove v. Klutznick, 448 U.S. 448, 537, 100 S.Ct. 2758, 2805, 65 L.Ed.2d
902 (1980) (Stevens, J., dissenting)). An affirmative action program may be
upheld only if it is narrowly tailored to serve a compelling governmental
interest. Id.

19

The county argues that its program is intended to benefit African Americans
and women by serving, among others, the following goals: (1) redressing
present effects of past and current incidents of discrimination and harassment
within the department, (2) sending a message that the department respects
diversity and that discrimination and harassment will not be tolerated, (3)
promoting more effective fire prevention and firefighting by fostering the trust
of a diverse public, and (4) serving educational goals by providing children
with racially and sexually diverse role models. The district court found that the
first interest asserted was compelling. The court relied on (1) "extensive

statistical evidence of discrimination" against African Americans and women,

(2) evidence that discriminatory behavior and attitudes within volunteer fire
departments carried over into the county fire department,6 and (3) anecdotal
evidence of harassment of African American and female members of the
county fire department. The plaintiffs challenge these findings, primarily on the
grounds that most acts of harassment and discrimination occurred long ago and
that there is no present evidence of racial or sexual animus within the Prince
George's County fire department. We need not resolve this dispute because
even assuming, arguendo, that the asserted interests are compelling, the
program is not narrowly tailored because the means chosen by the department
are not related closely enough to the interests asserted.
20

The program is not narrowly tailored because means less drastic than outright
racial classification were available to department officials. In particular, the
Prince George's County Code expressly provides that the fire department may
eliminate its volunteer preference in order to encourage diversity within the
department. The department did not, however, take that simple step. Indeed, if
discriminatory attitudes within the county fire department owe their origin to
practices within volunteer fire departments, as the defendants claim, then the
most logical solution is to deny volunteer firefighters the hiring preference they
currently enjoy. If a governmental body finds itself linked to a private entity
that discriminates, the government should sever its ties to the discriminating
entity before resorting to reliance on a suspect classification. "[E]xplicit racial
preferences, if available at all, must be only a 'last resort' option." Hayes v.
North State Law Enforcement Officers Ass'n, 10 F.3d 207, 217 (4th Cir.1993);
see also United States v. Paradise, 480 U.S. 149, 171, 107 S.Ct. 1053, 1066, 94
L.Ed.2d 203 (1987) (plurality opinion); In re Birmingham Reverse
Discrimination Employment Litig., 20 F.3d 1525, 1546-47 (11th Cir.1994),
cert. denied, --- U.S. ----, 115 S.Ct. 1695, 131 L.Ed.2d 558 (1995).

21

Another defect in the program is its tendency to benefit particular minority

groups that have not been shown to have suffered invidious discrimination. The
county claims that past pervasive discrimination against African Americans
requires it to maintain its affirmative action program. The current program,
however, treats all minority groups alike, even though the county has presented
evidence only of discrimination against African Americans. The department
has, for example, passed over white applicants in favor of Hispanics and South
Asians, but there is no record evidence of discrimination against Hispanics or
South Asians. 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 as currently structured is not narrowly tailored. J.A.
Croson, 488 U.S. at 506, 109 S.Ct. at 728; accord id. at 510-11, 109 S.Ct. at

730-31 (O'Connor, J., concurring).7 III.

A.
22

None of the plaintiffs (except for Reedy, whose case we discuss below) ranked
high enough on the Applicant Register to have been offered a job even in the
absence of the fire department's affirmative action program. Because the
existence of the affirmative action program did not cause them to be denied
employment opportunity, the plaintiffs (except Reedy) may not be awarded any
personal relief. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515, 113
S.Ct. 2742, 2752, 125 L.Ed.2d 407 (1993); Jiminez v. Mary Washington
College, 57 F.3d 369, 377-78 (4th Cir.), cert. denied, --- U.S. ----, 116 S.Ct.
380, 133 L.Ed.2d 304 (1995); Zatler v. Wainwright, 802 F.2d 397, 401 (11th
Cir.1986) (per curiam).

23

The plaintiffs argue that their rank on the Applicant Register is suspect due to
department officials' discriminatory method of administering and scoring exams
and interviews. The district court rejected this claim, as do we. We have
conducted a de novo review of the record evidence, and we agree with the
district court that the plaintiffs have not forecast sufficient evidence showing
"that the Department 'played with the process' to ensure the hiring of minority
applicants." 901 F.Supp. at 990. We affirm the denial of personal relief to all
the plaintiffs (except Reedy) for the reasons stated in the district court's
opinion. Id. at 990-91.

B.
24

IV.

Reedy's case is different. He ranked eighth on the Applicant Register in a

recruiting season when the department made nine offers. Three of those offers
went to affirmative action candidates ranked lower than he. Thus it appears that
Reedy would have received an offer of employment in the absence of the
affirmative action program and that therefore he should be considered for relief.
The defendants claim, however, that Reedy was not offered a job because other
applicants refused their offers too close to the beginning of the department's
training period for a job offer to have been made to Reedy. The district court
should have addressed the factual issue of whether Reedy would have been
offered employment in the absence of the department's affirmative action
program.8 We therefore remand Reedy's personal claim to the district court for
a new determination of whether he is personally entitled to relief.

25

The district court also held that the individual defendants were entitled to
qualified immunity. We disagree.

26

Government officials performing discretionary functions are immune from civil

liability unless "in the light of pre-existing law the unlawfulness [of their
conduct is] apparent." Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct.
3034, 3039, 97 L.Ed.2d 523 (1987). The plaintiffs may overcome this qualified
immunity only if they can demonstrate that the defendants' conduct violated
"clearly established statutory or constitutional rights of which a reasonable
person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct.
2727, 2738, 73 L.Ed.2d 396 (1982). Thus the question is whether the
individual defendants should have known in 1993 and 1994 that the fire
department's affirmative action program was unconstitutional.

27

In 1989 the Supreme Court's decision in J.A. Croson (affirming our 1987
decision striking down an affirmative action program, see 822 F.2d 1355)
should have put all reasonable administrators of local affirmative action
programs on notice that their programs would be subject to strict scrutiny. In
that case the Supreme Court expressly said that an affirmative action program
may not give benefits to minorities in general, but it must target benefits only to
particular groups that were the subject of particular acts of discrimination: "The
random inclusion of racial groups that, as a practical matter, may never have
suffered from discrimination" in the particular field and in the particular
location "suggests that perhaps the [defendant's] purpose was not in fact to
remedy past discrimination." J.A. Croson, 488 U.S. at 506, 109 S.Ct. at 728.
Furthermore, in Podberesky v. Kirwan, 956 F.2d 52 (4th Cir.1992), we
reaffirmed the importance of maintaining a close nexus between the remedy
and the discrimination the remedy is intended to correct. Fire department
officials at least should have re-evaluated the mechanics of and need for their
affirmative action program at that time. Also, by the time of the 1994 hiring
season, a reasonable official would have been aware of two of our opinions,
Hayes (1993), supra, and Maryland Troopers Ass'n, Inc. v. Evans, 993 F.2d
1072 (4th Cir.1993), in which we held state affirmative action programs invalid
because they were not narrowly tailored to serve compelling state interests.
Thus we believe that the individual defendants have not established their
entitlement to qualified immunity because case law (about which a reasonable
official would have known) had clearly established by 1993 and 1994 that the
department's affirmative action program failed to satisfy the strict requirements
of the Equal Protection Clause.

V.

28

The judgment of the district court is affirmed in part and reversed in part. The
case is remanded for fashioning of appropriate injunctive and declaratory relief,
for consideration of whether plaintiff Reedy was denied an offer of
employment because of his race or sex, and for further proceedings consistent
with this opinion.

29

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

The individual defendants and their positions and roles are as follows: M.H.
(Jim) Estepp is the county's fire chief. Maureen Hennessey was an officer in
the fire department's Administrative Services Division of the Management
Services Command and played a key role in hiring new recruits. William F.
Goddard, III, was the lieutenant colonel in charge of the Management Services
Command and also played a key role in hiring. Yvonne R. Tyler, a civilian
employee of the fire department, is the administrative assistant in charge of
personnel and is the recruitment and examination board administrator

The district court correctly held that the Applicant Register was not
inadmissible hearsay. The Applicant Register "set[ ] forth [ ] the activities of"
the fire department, namely, the ranking of applicants for employment.
Fed.R.Evid. 803(8)(A)

The parties dispute what these "caps" should be called. The plaintiffs have
described them as quotas; the defendants call them flexible goals. We believe
the term "informal caps" is the most appropriate description

Moore received an offer because of the existence of the affirmative action

program

The district court held as a preliminary matter that all the plaintiffs had
standing, including those who would not have been hired even in the absence of
the department's affirmative action program. We affirm this ruling. "The injury
in cases of this kind is that a 'discriminatory classification prevent[s] the
plaintiff from competing on an equal footing.' The aggrieved party 'need not
establish that he would have obtained the benefit but for the barrier in order to
establish standing.' " Adarand Constructors, Inc. v. Pena, --- U.S. ----, ----, 115
S.Ct. 2097, 2105, 132 L.Ed.2d 158 (1995) (quoting General Contractors v.
Jacksonville, 508 U.S. 656, 667, 113 S.Ct. 2297, 2303-04, 124 L.Ed.2d 586
(1993)) (internal citation omitted, modification in original). Standing is proper
even where a program "establishes 'goals' rather than rigid 'quotas.' " Bras v.
California Pub. Utils. Comm'n, 59 F.3d 869, 875 (9th Cir.1995), cert. denied, --

- U.S. ----, 116 S.Ct. 800, 133 L.Ed.2d 748 (1996); accord Omnipoint Corp. v.
FCC, 78 F.3d 620, 628 (D.C.Cir.1996)
6

According to the defendants, at one time all volunteer fire departments but one,
Chapel Oaks, excluded African Americans from membership. Even though
volunteer departments no longer formally exclude African Americans, the
County claims that an atmosphere of racial intolerance still pervades many
volunteer departments, making African Americans feel unwelcome and less
likely to join. In addition, many women have reported that they were sexually
harassed while they were members of volunteer departments and that male
members of the departments made it known that women were not welcome.
African Americans and women were not allowed to ride fire trucks in some
volunteer departments, for example, and were subject to hazing and offensive
epithets

We also note that no written fire department document describes the mechanics
of the program's operation. Because the program here is unwritten, judicial
examination of its provisions is more difficult, lending support to our finding
that the program is not narrowly tailored. Cf. White v. Roughton, 530 F.2d 750,
754 (7th Cir.1976) (per curiam) ("[f]air and consistent application of [ ]
requirements requires that [ ][ ] written standards and regulations" be
established); Baker-Chaput v. Cammett, 406 F.Supp. 1134, 1140 (D.N.H.1976)
("the establishment of written, objective, and ascertainable standards is an
elementary and intrinsic part of due process")

According to the district court, Reedy was not hired because three white males
ranked higher than he did. 901 F.Supp. at 989. However, because the program
is invalid, this comparison is not relevant; Reedy must be compared to all
applicants, regardless of their sex or race