Opinion
Civil Action No. 3:00cv00874.
October 25, 2001
MEMORANDUM OPINION
This matter is before the Court by consent of the parties ( 28 U.S.C. § 636 (c)(1)) on the Defendants' Motion for Summary Judgment pursuant to Fed.R.Civ.P. 56. The Plaintiffs, Caucasian males, were denied promotion in the Defendant City's Fire Department. They allege race discrimination in public employment as a result in violation of Title VII of the Civil Rights Act and a corresponding denial, under color of state law, of their constitutional rights to due process and equal protection of the law (made actionable pursuant to 28 U.S.C. § 1983). (Am. Compl.) Specifically, the Plaintiffs allege that they were each denied promotion to the position of Fire Lieutenant in three successive promotion cycles in 1998, 1999, and 2000 as the result of a policy and practice of the municipal defendant that was followed by the individual defendants to impermissibly favor minority candidates over more qualified Caucasian applicants. The individual defendants are the chief administrative official for the Defendant City (Calvin Jamison, City Manager), the Fire Chief (Jack McElfish), and two fire division chiefs (John Tunstall and Larry Tunstall). The Tunstalls, along with the Chief, were the ultimate decision-makers responsible for the challenged employment actions. For the reasons stated herein, the Defendants' motion is GRANTED.
"The Defendants objected to the Court's consideration of a particular affidavit (by Walter S. Booth, Ph.D.) in conjunction with the Court's consideration of the motion as well as several proposed trial exhibits offered by the Plaintiffs. The Court will address the admissibility of the affidavit within the context of this Memorandum Opinion and the remaining evidentiary objections are rendered moot as a result of the granting of dispositive relief.
Standard of Review
Summary judgment is only to be granted when there is no genuine dispute as to any issue of material fact when all justifiable inferences are drawn in favor of the non-moving party and the movant is entitled to judgment as a matter of law. Celotex v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, unsupported conclusory allegations by the non-moving party are not sufficient to create a genuine dispute of material fact so as to withstand the granting of relief. Celotex Corp. v. Catrett, 477 U.S. at 327 (White, J., concurring). In essence, the Court must decide if the evidence when viewed in the light most favorable to the non-moving party "presents a sufficient disagreement to require submission to the [factfinder] or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. at 251-252.Undisputed Material Facts and Justifiable Inferences
The Court deems the following to be the relevant undisputed facts and permissible inferences on which the resolution of the pending motion must be based:
1. In 1998, the City Fire Department (Department) implemented a process to establish a list of eligible candidates for promotion to the position of Fire Lieutenant. (Am. Compl. ¶ 9).
2. The process was based on a written test and assessment regimen that was designed and monitored by an independent expert (Dr. Booth). (Am. Compl. ¶ 11).
3. The process was designed as a screening mechanism to identify, the top forty candidates from whom the final selections would be made by the Chief and the two Division Chiefs (the decision makers) following an interview and final evaluation stage. (Defs.' Mem., Ex. 9 (Personnel Rules)).
4. The Plaintiff Dew ranked first and Plaintiff Brandon ranked fourth on the final list of forty candidates as a result of the screening process, but they were considered by the decision makers for each of the promotion cycles in alphabetical order without disclosure of their ranking. (Defs.' Mem., Ex. 7; Ex. 8 (Defs.' Ans. to Supp'l Interrog. no. 5); Ex. 9 (Personnel Rule 3.15))
5. Of the top forty candidates who prevailed in the screening process, four were African American and the remaining thirty-six were Caucasian. (Defs.' Mem., Ex. 6).
6. Dr. Booth, the independent expert who designed the process for establishing the eligibility list, conveyed his apparent disappointment over the lack of minority success in the screening process to agents of the Department other than the individual Defendants. However, there is no evidence that such an opinion or concern was communicated to or had any impact on the decision makers in the final selection process. (Pls.' Mem., Exs. 2-5).
7. The Defendant City had a written employment policy and procedure in force and effect at all relevant times espousing equal employment opportunities in all hiring and promotion actions. (Def.'s Mem., Ex. 9).
8. The same eligibility list was utilized for a promotion cycle in each of the three years of 1998, 1999, and 2000. (Am. Compl., ¶¶ 12, 14).
9. The number of candidates on the eligibility list who were considered for each promotion cycle during the final selection stage depended on the number of vacancies to be filled. (Defs.' Mem., Ex. 9 (Personnel Rule 3.15)).
10. In 1998, there were eleven vacancies that required the top twenty-two candidates on the eligibility list to be evaluated during the final selection process. (Defs.' Mem., Ex. 11).
11. Of the twenty-two candidates, four were the African-American applicants who had qualified for the eligibility list of forty. (Id., Ex. 7).
12. Three of the four African-American candidates were promoted in October 1998 and the remaining eight positions were filled by Caucasian candidates. (Id.).
13. In 1999, there were six vacancies for which the remaining top twelve applicants on the same eligibility list were interviewed in the final selection process and the remaining African-American candidate was promoted along with five Caucasian applicants in September 1999. (Defs.' Mem., Ex. 12).
14. In 2000, there were four vacancies for which the next nine eligible candidates, none of whom were African American, were interviewed. (Defs.' Mem., Ex. 8 at 3).
15. Four Caucasian candidates, not including either Plaintiff, were promoted in August 2000, all of whom ranked lower than the Plaintiff Dew and three of whom were ranked lower than the Plaintiff Brandon at the conclusion of the screening process. (Id.).
16. Over the three-year cycle, a total of twenty-one positions were filled of which four positions were given to the four African-American candidates on the eligibility list and the remaining seventeen positions were awarded to Caucasian applicants. (Defs.' Mem., Ex. 1 at 36).
17. All thirty-nine African-American candidates who reached the final selection stage since 1974 have been promoted over time, though not necessarily on their initial effort or by the same selection process. (Pls.' Mem. Ex. 13 (Defs.' Ans. to Supp'l Interrog. no. 2)).
18. During the same time period. 108 of the 124 Caucasian candidates (or 87%) were promoted. (Pls.' Mem. Ex. 13 (Defs.' Answers to Supp'l Interrog. no. 3)).
19. Caucasian candidates with lower scores from the screening process were promoted over African-American applicants in the same promotional cycle. (Defs.' Mem., Ex. 1 at 46; Ex. 7).
20. Thirteen of the sixty-five positions of Fire Lieutenant were occupied by African Americans as of date Defendants submitted their Motion for Summary Judgment. (Defs.' Mem., Ex. 13).
21. Chief McElfish, one of the three final decision-makers, mistakenly thought the City had a formal affirmative-action policy that provided for the hiring and advancement of minorities. (Pls.' Mem., Ex. 10 at 28-29).
22. The Plaintiffs were aware of their relative rankings on the eligibility list when it was finalized in 1998 before the final selection process was completed in the first promotion cycle. (Defs.' Mem., Ex. 1 at 17).
23. Brandon filed a complaint with the Equal Opportunity Commission (EEOC) on August 7, 2000, and Dew filed a complaint with the EEOC on September 13, 2000, both alleging discrimination in each of the promotional cycles. (Am. Compl. ¶¶ 14, 15).
24. The Plaintiffs have exhausted required administrative procedures as to their claims related to the year 2000 promotion cycle. (Am. Compl. ¶ 6).
25. This action which was originally filed on December 29, 2000, challenges the promotion decisions made in October 1998, September 1999, and August 2000. (Am. Compl.).
The Court agrees with and therefore adopts with some modification the Defendants' Statement of Undisputed Facts that was submitted in compliance with local rule for such a purpose. (Defs.' Mem. in Supp. of Defs.' Mot. for Summ. J. (Defs.' Mem.) at 3-5).
The Plaintiffs allege as a genuine issue of disputed material fact that would indeed preclude summary relief that the decision makers knew the relative rankings of the candidates during the final selection stage as the result of the screening process. (Pls.' Mem. in Opp'n to Defs.' Mot. for Summ. J. at 2). However, the Plaintiffs' assertion is no more than conclusory allegation that does not merit consideration. Celotex Corp. v. Catrett, 477 U.S. at 327. There is simply nothing in the record to rebut the Defendants' position that is supported by sworn statements. (Defs.' Mem., Ex. 8). Therefore, the relative rankings of the various candidates on the eligibility list before the final selection stage is irrelevant and, accordingly, the Court does not find it necessary to note the relative rankings of various candidates throughout the screening process for the various cycles as emphasized by the Plaintiffs.
The Court only includes this finding for purposes of context. It does not find the existence of the written policy to be dispositive of the ultimate because the Court would not expect any written policy to advocate bigotry.
Analysis Statute of Limitations Partial Bar
The Plaintiffs allege constitutional deprivation pursuant to 28 U.S.C. § 1983 as well as a violation of Title VII of the Civil Rights Act pertaining to employment discrimination. However, a separate action pursuant to § 1983 cannot be maintained if the subject claim or claims could have been maintained as a Title VII cause of action. Hughes v. Bedsole, 48 F.3d 1376, 1383, n. 8 (4th Cir. 1994); see also Great American Fed. Sav. Loan Ass'n v. Novotny, 442 U.S. 366, 372-378 (1979). Furthermore, the required administrative charge alleging a Title VII claim must be filed with the EEOC within three hundred (300) days of the alleged discriminatory act,`"not upon the time at which the consequences became most painful."' Del. State College v. Ricks, 449 U. 5. 250, 258 (1980) (citations omitted). These actions could have been pursued originally as Title VII claims and the claims involving the 1998 and 1999 promotion cycles were not submitted to the EEOC within the required time period.An exception to the usual rule is known as the continuing violation theory that would operate to toll the deadline for filing an administrative complaint "if an actual violation has occurred within the requisite time period and untimely claims can be related to the timely incident." Emmert v. Runyon, 1999 WL 253632, at *4 (4th Cir. April 29, 1999) (unpublished) (citing Beall v. Abbott Labs, 130 F.3d 614, 620 (4th Cir. 1997)). The Fourth Circuit "has never delineated what constitutes a `continuing violation."' Id. The several promotion cycles that are the basis of the Plaintiffs' complaints may be said to be related because they involve the same decision-makers, same eligibility list, and same alleged policy of discrimination. However, `"separate and completed events"' such as the promotional decisions in this case cannot meet any test of a continuing violation. Id. (citing Lawson v. Burlington Indus., Inc., 683 F.2d 862, 863-864 (4th Cir. 1982). Moreover, both Plaintiffs concluded that the first failure to be promoted in October 1998 was based on impermissible race discrimination and each of the promotion decisions was final and irrevocable. Woodard v. Lehman, 717 F.2d 909, 915 (4th Cir. 1983). (Def.'s Mem., Ex. 1 at 42-44; Ex. 2 at 33-35). There are, therefore, specific points in time when the Plaintiffs were put on sufficient notice of a possible violation of their rights such that they should have initiated their respective actions so as to not "expose employers [Defendant City] to a virtually open-ended period of liability." Abrams v. Baylor College of Medicine, 805 F.2d 528, 534 (5th Cir. 1986).
The Plaintiffs did not file their respective claims regarding the 1998 and 1999 promotion cycles until after the expiration of the required time period in which to challenge each action. (Defs.' Mem., Exs. 14, 15). Any claim related to those events must therefore be dismissed as time-barred.
Viable Title VII and § 1983 Claims
The Plaintiffs' assertions concerning the August 2000 promotion cycle are not time-barred and all administrative exhaustion requirements have been met in regard to those claims. (Findings ¶ 24). In regard to the claims, a municipal defendant such as the Defendant City can only be held liable for a Title VII violation based on acts of an agent(s) if they acted in reliance on or in furtherance of an established custom, practice or policy of the entity that was implemented, fermented, or otherwise sanctioned or permitted by the municipality. Monell v. Dep't of Soc. Serv., 436 U.S. 658 (1978). If there is evidence of constitutional deprivations by a municipal agent, it is reasonable to infer on the basis of credible evidence of some pattern suggestive of a custom or practice that there is a genuine dispute as to a material fact precluding summary relief in favor of the municipality. At the same time, it follows a fortiori that if the evidence is not sufficient as a matter of law to establish at least a prima facie case for constitutional deprivation by the agent(s), neither the individual agent(s) nor the municipal entity can be found ultimately liable for either a § 1983 or Title VII violation. Young v. City of Mt. Ranier, 238 F.3d 567, 579 (4th Cir. 2001) (holding that 4th Circuit law is clear that there can be no municipal liability where there is no constitutional violation by any individual). The Plaintiffs' basic argument is that they were more qualified than all the African-American candidates based on the eligibility list before the final interview and evaluation stage so that they must have been denied promotion due to race discrimination. (Am. Compl. ¶¶ 11, 17-18). However, the undisputed facts clearly refute such a conclusion.
See e.g., Findings ¶ 17.
Even if one examines only the most recent hiring cycle in the year 2000, which is the only year that can be the basis for relief, all the promotions in that cycle involved members of the same race as the Plaintiffs. (Findings ¶¶ 14, 15). Moreover, even if all three promotion cycles are considered — as would be relevant and admissible evidence to establish the claims for the 2000 cycle since the same list and decision-makers were involved in all three — seventeen of the twenty-one promotions were given to members of the Caucasian race and only thirteen of sixty-five Fire Lieutenant positions were occupied by African-American personnel. (Findings ¶¶ 16, 20). Such statistics hardly provide evidence of an "over-arching policy [practice or custom] of discrimination." See Dixon v. Anderson, 928 F.2d 212, n. 5.
Indeed, if there was racial animus involved in this situation, one would expect to find that the same eligibility list that necessarily resulted in the selection of all Caucasian candidates in the final cycle would have been discarded much earlier in lieu of a new process more favorable to minority applicants. This would be consistent with the independent expert's concerns and, furthermore, an African American (Johnson) would not have been "passed over" for a Caucasian candidate who had a lower overall score following the screening process as occurred in the first cycle. (Findings ¶¶ 6, 8, 19).
The undisputed evidence discloses that all of the thirty-nine African-American candidates who sought promotion since 1974 ultimately succeeded. In addition, the independent expert who designed and monitored the screening process expressed disappointment at the disportionately low success rate of minorities. (Findings ¶ 6). It also appears that the Chief, one of the final decision-makers, mistakenly thought that the Defendant City had an affirmative action plan that Plaintiffs suggest show that he was motivated to comply with the policy by impermissibly favoring minority applicants. (Findings ¶ 21).
The Plaintiffs also emphatically assert that the final results are suspect because "poor minority performance" on the eligibility exam is "corrected by the end process without standards, without reason, in violation of City Personnel Rules." (Pls.' Mem. in Opp'n at 11). However, it is clear that whatever shortcoming may have occurred, they involved only the preliminary screening process and not the final evaluation and selection stage. Such objections are therefore irrelevant.
However, the evidence is also clear that the promotions of the African-American candidates since 1974 occurred over time and they were not simply promoted without having to qualify for the positions through the same process as all candidates. For example, some 87% of Caucasian applicants also prevailed during the same extended time period. (Findings ¶ 18). In addition there is no evidence that any of the expert's concerns were conveyed to the final decision-makers. (Id) (Findings ¶ 6). Even if so, there is no evidence that his opinion had any impact on the process. Finally, even though the Chief mistakenly thought there was an action plan for the hiring and advancement of minorities, there is no evidence that he thought such a plan involved those aspects of a prohibited preference system which could be indicative of impermissible bias. See, e.g., Belk v. Charlotte-Mecklenberg Bd. of Ed., 2001 WL 1104486, at * 30 (4th Cir. (N.C.)) (citing authority) (holding that mathematical ratios, for example, may be utilized as a "starting point in the process of shaping a remedy," but not as `an inflexible requirement"').
The Defendants object to the admissibility of the affidavit of the expert for a number of reasons, including relevancy. The Court permitted the late filing of the affidavit (to be marked as Court Ex. 1 for reference purposes), but gives it minimum weight as only relevant to the purpose of placing aspects of the screening process in proper perspective. However, as noted, that stage of the process is ultimately not at issue and, in fact, if anything, the contents of the affidavit are supportive of the Defendants' position by the emphasis in it on the important subjective considerations in the final evaluation and selection stage. (Aff ¶ 3).
Conclusion
As understandably frustrating as the situation must be for the Plaintiffs, given their achievement during the screening process, there is insufficient evidence as a matter of law that race was a factor in the selection of Fire Lieutenants and that the final results were based on what has become known as "reverse discrimination." The motion for summary judgment on behalf of all Defendants is therefore GRANTED.
An appropriate Order shall issue.
It is so Ordered.