Donna Humphries v. Pulaski County, etc. ( 2009 )


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  •                       United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    Nos. 08-2485/2594
    ___________
    Donna Humphries,                          *
    *
    Appellant/                   *
    Cross-Appellee,              *
    * Appeals from the United States
    v.                                  * District Court for the Eastern
    * District of Arkansas.
    Pulaski County Special                    *
    School District,                          *
    *
    Appellee/                    *
    Cross-Appellant.             *
    ___________
    Submitted: April 16, 2009
    Filed: September 3, 2009
    ___________
    Before WOLLMAN, MELLOY and GRUENDER, Circuit Judges.
    ___________
    GRUENDER, Circuit Judge.
    Donna Humphries brought this action against the Pulaski County Special
    School District (“District”) alleging that the District breached its employment contract
    with her and that it unlawfully used race in its hiring practices in violation of Title VII
    of the Civil Rights Act of 1964, 42 U.S.C. §§ 1981 and 1983, and the Arkansas Civil
    Rights Act. The district court granted the District’s motion for summary judgment
    with respect to the federal claims and dismissed Humphries’s state law claims without
    prejudice. Both parties appeal, and for the reasons discussed below, we affirm in part
    and reverse in part.
    I.    BACKGROUND
    Humphries, a white female with a doctorate degree in elementary education, has
    been employed with the District since 1984 and has worked as an elementary school
    counselor since 1989. Since 2001, Humphries has applied for virtually every
    elementary school assistant principal position that has been available in the District,
    including two such openings in August 2005. In 2007, Humphries also applied for a
    director of counseling services position with the District. In each instance, Humphries
    asserts that the District preferentially hired black applicants.
    In August 2005, Humphries filed a claim with the Equal Employment
    Opportunity Commission (“EEOC”), alleging that the District repeatedly denied her
    an assistant principal position based on her race. After receiving a notice from the
    EEOC regarding her right to sue, Humphries filed suit in the district court on May 24,
    2006, contending that the District discriminated against her based on her race when
    it failed to promote her to the assistant principal positions and that the District
    breached its contract with her by failing to give priority consideration to current
    employees when filling the assistant principal positions.1 Humphries filed an
    amended complaint on September 26, 2007, which added the allegation that she was
    denied the director of counseling services position because of her race.
    Both parties filed motions for summary judgment. In her motion for summary
    judgment, Humphries contended that direct evidence supported her discrimination
    1
    Humphries initially claimed that the District also discriminated against her
    based on her age. The district court subsequently granted Humphries’s motion to
    dismiss her age discrimination claims.
    -2-
    claims, including the District’s policy of using biracial interview committees, the
    District’s announced preference to “employ and advance blacks,” the District’s
    published racial quotas and goals for hiring black administrators, the District’s
    practice of hiring assistant principals such that at least one assistant principal is of a
    different race than that school’s principal, and statistical evidence establishing that the
    District favors black applicants in its hiring of administrative personnel.
    In its motion for summary judgment, the District argued that its policies for
    employment and promotion were promulgated in response to court orders requiring
    the District to desegregate and implement procedures that would make the District
    attractive to minority students, teachers, and administrators. The District has a lengthy
    history of involvement in desegregation litigation. See Little Rock Sch. Dist. v. N.
    Little Rock Sch. Dist., 
    451 F.3d 528
    , 529 (8th Cir. 2006) (summarizing the District’s
    history of involvement in federal desegregation litigation). In 1982, the Little Rock
    School District sued the District, the North Little Rock School District, the State of
    Arkansas, and the Arkansas State Board of Education, seeking consolidation of the
    three Pulaski County school districts as a remedy for allegedly unconstitutional efforts
    to maintain racially segregated schools. See Little Rock Sch. Dist. v. Pulaski County
    Spec. Sch. Dist. No. 1, 
    778 F.2d 404
    , 408-09 (8th Cir. 1985) (en banc). This court
    affirmed the district court’s finding that the District acted to perpetuate segregation
    by, among other things, failing to meet staff hiring goals. Id. at 427-28. In response
    to our decision, the District negotiated a settlement agreement with the other school
    districts, which we eventually ordered the district court to approve. See Little Rock
    Sch. Dist. v. Pulaski County Spec. Sch. Dist. No. 1, 
    921 F.2d 1371
    , 1388 (8th Cir.
    1990). We also ordered the creation of the Office of Desegregation Monitoring
    (“ODM”) to assist the district court in its supervision of the school districts. See id.
    The District operated under that settlement agreement until March 2000, when the
    district court approved a new plan submitted by the District called “Plan 2000.” Little
    Rock Sch. Dist. v. Pulaski County Spec. Sch. Dist. No.1, Case No. 4:82-cv-866, Doc.
    No. 3347, at 2 (E.D. Ark. Mar. 21, 2000).
    -3-
    Regarding staffing, Plan 2000 requires that the District “recruit applicants for
    each available administrative position . . . in a manner designed to communicate,
    broadly, its availability and to develop a racially diverse pool of applicants.” It also
    requires the District to “allocate teachers and other professional staff in a manner
    which avoids the racial identification of schools.” The District’s assistant
    superintendent for desegregation has “the authority to direct that additional
    recruitment take place prior to the offering of the position to a particular applicant.”
    Further, the District’s compliance with Plan 2000 is subject to continuous monitoring
    by the ODM.2
    The district court granted summary judgment to the District, holding that
    Humphries failed to set forth direct evidence of unlawful discrimination because she
    “presented no evidence that the ‘affirmative action’ plan played any part in the
    District’s decisions not to promote her.” The court further held that even if
    Humphries could establish that the District followed its affirmative action plan in
    failing to promote her, Humphries could not establish that its plan was invalid. The
    court also dismissed Humphries’s state law claims without prejudice. Humphries
    appeals the district court’s grant of summary judgment to the District and denial of her
    motion for summary judgment. The District cross-appeals the district court’s
    dismissal of Humphries’s state law claims without prejudice.
    II.   DISCUSSION
    “We review a district court’s decision on cross-motions for summary judgment
    de novo.” Thirty and 141, L.P. v. Lowe’s Home Ctrs., Inc., 
    565 F.3d 443
    , 445-46 (8th
    Cir. 2009). “Summary judgment is appropriate when, viewing the facts in the light
    2
    In May 2003, the ODM found that the District “lacked a consistent guideline
    that defined what constituted a diverse pool of applicants.” In December 2006, the
    ODM found that the District still had no guideline for what constituted a diverse pool
    of applicants.
    -4-
    most favorable to the non-movant, there are no genuine issues of material fact and the
    movant is entitled to judgment as a matter of law.” Id. at 446. “A genuine issue of
    material fact exists if a reasonable jury could return a verdict for the party opposing
    the motion.” Chao v. Barbeque Ventures, LLC, 
    547 F.3d 938
    , 941 (8th Cir. 2008).3
    Humphries’s claims may survive the District’s motion for summary judgment
    in one of two ways. First, Humphries “may present admissible evidence directly
    indicating unlawful discrimination, that is, evidence showing a specific link between
    the alleged discriminatory animus and the challenged decision, sufficient to support
    a finding by a reasonable fact finder that an illegitimate criterion actually motivated
    the adverse employment action.” See Fields v. Shelter Mut. Ins. Co., 
    520 F.3d 859
    ,
    863 (8th Cir. 2008). In the alternative, Humphries may present evidence “creating an
    inference of unlawful discrimination under the burden-shifting framework established
    in McDonnell Douglas Corp. v. Green, 
    411 U.S. 792
    , 802-04 (1973).” See Fields,
    520 F.3d at 863-64 (parallel citations omitted).
    Under the McDonnell Douglas framework, Humphries can establish a prima
    facie case of discrimination by showing: “(1) that she is a member of a protected
    class; (2) that she was meeting her employer’s legitimate job expectations; (3) that she
    suffered an adverse employment action; and (4) that similarly situated employees
    outside the protected class were treated differently.” See id. at 864. If Humphries
    meets her burden to establish a prima facie case of discrimination, the burden then
    shifts to the District “to establish a legitimate, nondiscriminatory reason for taking the
    allegedly discriminatory action.” See Hammer v. Ashcroft, 
    383 F.3d 722
    , 724 (8th
    Cir. 2004). If the District puts forth such a reason, Humphries must then show that
    the District’s proffered explanation is pretextual or her claims will fail. See id.
    3
    Because Humphries’s Title VII and §§ 1981 and 1983 claims “‘set forth
    parallel, substantially identical, legal theories of recovery,’ we apply the same analysis
    to” each claim. See Fields v. Shelter Mut. Ins. Co., 
    520 F.3d 859
    , 863 n.3 (8th Cir.
    2008) (quoting Kim v. Nash Finch Co., 
    123 F.3d 1046
    , 1063 (8th Cir. 1997)).
    -5-
    A. Assistant Principal Positions
    Humphries first contends that the district court erred by finding that she
    presented no direct evidence of unlawful discrimination. In particular, she points to
    evidence of the District’s affirmative action policies. The District does not dispute
    that it has affirmative action policies. For example, the District does not dispute that
    its policy is to use biracial committees to conduct interviews when filling above-entry-
    level positions, and it concedes that it used biracial committees to select the candidates
    for the assistant principal positions sought by Humphries. The District also does not
    deny that its job postings for the two assistant principal positions announced in August
    2005 included the following language: THE DISTRICT WILL MAKE SPECIAL
    EFFORTS TO EMPLOY AND ADVANCE WOMEN, BLACKS, AND
    HANDICAPPED PERSONS. Further, the District’s published hiring goals include
    having at least one minority administrator at each elementary school and “attain[ing]
    a ratio of black administrators in the [District] in proportion to the ratio of black
    certified personnel in the [D]istrict in the preceding year.” Members of the biracial
    interview committees are trained to abide by the District’s “racial equality” policies.
    The District does, however, dispute Humphries’s assertion that it has a policy
    of hiring assistant principals such that at least one assistant principal at each school
    is of a different race than that school’s principal. Humphries contends that she
    presented sufficient evidence to create a question of fact about whether the district has
    such a policy. She points to evidence that from October 2002 to August 2005, black
    applicants were hired for twelve out of fourteen assistant principal openings and, in
    eleven of those instances, the principal at the school was white. In the twelfth
    instance, the school’s principal was black, but the school already had one white
    assistant principal. The two white assistant principals were hired at schools where the
    principals were black. Humphries’s expert concluded that a statistical analysis of this
    evidence showed that the District has a policy of biracially pairing principals and
    assistant principals because black applicants were selected at schools with white
    -6-
    principals in excess of 5.64 standard deviations above what would have been expected
    in the absence of such a policy, based on the relevant labor market. Cf. Hazelwood
    Sch. Dist. v. United States, 
    433 U.S. 299
    , 309 n.14 (1977) (suggesting that standard
    deviations between 2 and 3 constitute acceptable statistical proof of discrimination).
    The District argues that Humphries’s statistical evidence is unreliable,
    challenging several aspects of her analysis, particularly whether Humphries’s expert
    used the appropriate applicant pool. Humphries’s expert used the number of certified
    teachers in the District as the comparative applicant pool. The District’s expert used
    the number of applicants for each job as the comparative pool and concluded that the
    statistical evidence did not support the proposition that the District had such a policy.
    As the Supreme Court has noted, when a job requires special qualifications,
    “comparisons to the general population (rather than to the smaller group of individuals
    who possess the necessary qualifications) may have little probative value.” Id. at 308
    n.13. Humphries argues that all certified teachers possess the necsesary qualifications
    for an assistant principal job, while the District asserts that only certain teachers
    possess the necessary administrative certification. The parties’ different methods of
    analysis create an issue of fact, and the “determination of the appropriate comparative
    figures in this case will depend upon further evaluation by the trial court.” See id. at
    312 (“Statistics come in infinite variety. Their usefulness depends on all of the
    surrounding facts and circumstances. Only the trial court is in a position to make the
    appropriate determination after further findings.” (internal citation and alterations
    omitted)). The district court made no findings regarding Humphries’s statistical
    evidence. It did not, for example, conclude that Humphries’s expert’s analysis was
    flawed because the analysis failed to control for relevant variables. Cf. El Deeb v.
    Univ. of Minn., 
    60 F.3d 423
    , 430-31 (8th Cir. 1995) (affirming the district court’s
    grant of summary judgment where the district court found that the plaintiff’s statistical
    analysis was insufficient as a matter of law because it failed to control for relevant
    variables). We cannot say as a matter of law whether one analysis is superior to the
    other. Viewing the facts in the light most favorable to Humphries, a reasonable jury
    -7-
    could conclude that the District has a policy of pairing assistant principals with
    principals of different races.
    The District next argues that each of its affirmative action policies was properly
    promulgated in response to various court orders requiring the District to implement
    procedures to desegregate and make itself attractive to minority administrators. While
    this court has not addressed the issue of whether reliance on a court-sanctioned
    affirmative action plan may be direct evidence of discrimination, several of our sister
    circuits have suggested that an affirmative action plan may be direct evidence of
    discrimination if the challenged employment action resulted from the employer acting
    in connection with that plan. See Frank v. Xerox Corp., 
    347 F.3d 130
    , 137 (5th Cir.
    2003) (also requiring a showing that the plan is invalid); Bass v. Bd. of County
    Comm’rs, 
    256 F.3d 1095
    , 1110 (11th Cir. 2001) (same); McGarry v. Bd. of County
    Comm’rs, 
    175 F.3d 1193
    , 1200 (10th Cir. 1999); Brown v. McLean, 
    159 F.3d 898
    , 904
    (4th Cir. 1998); Ceratto v. S.F. Cmty. Coll. Dist., 
    26 F.3d 968
    , 976 (9th Cir. 1994).
    We now join our sister circuits in concluding that evidence that an employer
    followed an affirmative action plan in taking a challenged adverse employment action
    may constitute direct evidence of unlawful discrimination. If the employer defends
    by asserting that it acted pursuant to a valid affirmative action plan, the question then
    becomes whether the affirmative action plan is valid under Title VII and the Equal
    Protection Clause. See Bass, 256 F.3d at 1113, cf. Ricci v. Destefano, 557 U.S. ---,
    
    129 S. Ct. 2658
    , 2673 (2009) (holding that a city’s making promotion decisions based
    on race would violate Title VII without a “valid defense”); Donaghy v. City of Omaha,
    
    933 F.2d 1448
    , 1458 (8th Cir. 1991) (holding that satisfaction of the four-part
    McDonnell Douglas test will not necessarily show a prima facie violation of § 1983
    in a reverse discrimination case where the employer was acting pursuant to a “bona
    fide affirmative action plan,” but not discussing whether evidence of an employer’s
    acting pursuant to the affirmative action plan would constitute direct evidence of
    unlawful discrimination).
    -8-
    Because the District does not dispute the existence of several of its affirmative
    action policies, Humphries must next show that the District acted pursuant to those
    policies in failing to promote her to the assistant principal positions. See Fields, 520
    F.3d at 863 (requiring a “specific link between the alleged discriminatory animus and
    the challenged decision”). We conclude that Humphries has raised a genuine issue of
    material fact concerning whether there was a specific link between the District’s
    decision not to promote her and the District’s various affirmative action policies.
    Humphries presented evidence that the District’s interview committees are instructed
    to abide by the District’s affirmative action policies. The District’s published hiring
    goals include hiring at least one minority administrator at each school and attaining
    a ratio of black administrators in proportion to the number of black certified personnel
    in the District. And, as explained above, Humphries created a genuine issue of
    material fact concerning whether the District has a policy of hiring assistant principals
    who are of a different race than the principal at a particular school. A reasonable jury
    could conclude that interviewers, who had been trained in the District’s “racial
    equality” policies, effectuated those policies through their scoring and ranking of
    applicants and that the District therefore acted pursuant to its affirmative action
    policies when it failed to promote Humphries to one of the assistant principal
    positions. See Bass, 256 F.3d at 1112-13; Frank, 347 F.3d at 137 (finding direct
    evidence of unlawful discrimination where the employer explicitly identified racial
    goals and managers were evaluated on how well they complied with the affirmative
    action policy’s objectives).
    The District argues that Humphries cannot show that she was adversely affected
    by its affirmative action policies because her low scores during her initial interviews
    precluded her from reaching the final stage of interviewing. The District relies on
    Donaghy, in which we held that the plaintiff, a white male, did not have standing to
    challenge his employer’s decision to interview and promote a black applicant because
    the plaintiff’s scores on a multiple choice test left him ranked below several other
    applicants. Donaghy, 933 F.2d at 1454-55. However, there was no allegation in
    -9-
    Donaghy that the multiple choice test was biased against whites or subjective in any
    other way. By contrast, Humphries asserts that the District’s interviewers were
    influenced by the District’s affirmative action policies and that their rankings were
    therefore biased by their desire to comply with those policies. Thus, Donaghy does
    not support the District’s position. As explained above, Humphries has met her
    burden of raising a genuine issue of material fact about whether there was a specific
    link between the District’s failure to promote her and the District’s affirmative action
    policies.
    Finally, to defeat summary judgment, Humphries must show that the District’s
    affirmative action policies are invalid. See Bass, 256 F.3d at 1113; cf. Johnson v.
    Transp. Agency, 
    480 U.S. 616
    , 626-27 (1987) (explaining that the burden is on the
    Title VII plaintiff to show that an affirmative action policy is invalid). An affirmative
    action policy is valid if the policy is remedial and narrowly tailored to meet the goal
    of remedying the effects of past discrimination. Donaghy, 933 F.2d at 1458. A policy
    may be considered remedial if the employer has identified a “manifest imbalance” in
    the work force. Maitland v. Univ. of Minn., 
    155 F.3d 1013
    , 1016 (8th Cir. 1998)
    (quoting Johnson, 480 U.S. at 631). A policy may be shown to be remedial through
    evidence that it was implemented “in adherence to a court order, whether entered by
    consent or after litigation.” Donaghy, 933 F.2d at 1459; see also Maitland, 155 F.3d
    at 1017. But a policy may not “unnecessarily trammel” the rights of non-minorities,
    and it must be “intended to attain a balance, not to maintain one.” Maitland, 155 F.3d
    at 1016 (internal quotation and alteration omitted).
    The District contends that its policies are consistent with Plan 2000 and with
    previous court orders, as well as with mandates from the ODM in response to its
    findings concerning the District’s implementation of Plan 2000. Although the district
    court found that the District’s policies were valid, it did not discuss the basis for that
    finding. The court merely noted that “[w]hile Humphries argues that the District is
    no longer subject to monitoring as to its administrative staffing and has met or perhaps
    -10-
    exceeded its goals, the Court is not prepared to say that the District’s plan is invalid
    and that the District is no longer subject to an agreement approved by the court in the
    Little Rock School Desegregation Case.” If the District’s affirmative action policies
    were implemented pursuant to court orders, that would “not guarantee that the
    [policies] serve a remedial purpose,” but “the heightened judicial oversight inherent
    in a properly entered [court order]” would support the District’s argument that its
    polices are remedial. See id. at 1016-17 (internal quotations and citations omitted).
    However, at oral argument the District could not identify with specificity which court
    orders, besides Plan 2000, that it was bound by or whether the ODM had required it
    to implement other policies in response to the ODM’s monitoring. Without this
    information, we cannot determine whether the District’s affirmative action policies are
    consistent with court orders or ODM mandates.
    Moreover, the District’s assertion that its policies were implemented in
    adherence to Plan 2000 does not support its argument that its polices are remedial.
    Many of the District’s policies seem to be aimed at increasing the number of minority
    administrators hired. However, Plan 2000 merely requires the District to attain a
    racially diverse applicant pool for administrative positions; it does not set hiring goals.
    As the District conceded at oral argument, there is nothing in Plan 2000 related to
    biracial interview committees or hiring quotas for particular positions. Additionally,
    Humphries showed that there is an issue of fact regarding whether the District has a
    policy of pairing assistant principals with principals of different races. If such a
    policy exists, it is not a part of Plan 2000. Thus, the District cannot rely on Plan 2000
    to show that its policies were remedial.
    We turn, then, to the question whether the District’s policies were remedial
    because they addressed a manifest racial imbalance in the District’s work force. See
    Maitland, 155 F.3d at 1016. We conclude that there are genuine issues of material
    fact related to the questions whether the District’s affirmative action policies
    addressed a manifest racial imbalance in the workforce and, relatedly, whether the
    -11-
    policies were aimed at attaining a balance in the workforce. See id. at 1018 (reversing
    a grant of summary judgment to an employer because the plaintiff “demonstrated that
    there is a genuine issue of material fact on the question of whether there was a
    manifest . . . imbalance in faculty salaries based on gender”). The parties did not
    focus on this issue in their briefs on appeal or in the district court, though Humphries
    did present evidence that the District’s annual reports claim that the District
    “continues to meet” its racial quotas for administrators. Humphries contends, and we
    agree, that this evidence creates a genuine issue of material fact about whether there
    was a manifest imbalance in the workforce and whether the District is impermissibly
    maintaining, rather than attaining, a racial balance. See id. Because there are genuine
    questions of material fact remaining, we are unable to determine whether the District’s
    affirmative action policies are valid as a matter of law. See id.
    Accordingly, we find that Humphries has presented sufficient direct evidence
    of unlawful race discrimination by showing that there are genuine issues of material
    fact regarding the District’s affirmative action policies, regarding whether the District
    acted pursuant to those policies when it failed to promote her to the assistant principal
    positions, and regarding whether the District’s affirmative action policies are valid.
    We therefore reverse the district court’s grant of the District’s motion for summary
    judgment with regard to Humphries’s claims that the District discriminated against her
    when it refused to promote her to the assistant principal positions.4
    B. Director of Counseling Services Position
    Humphries failed to file a complaint of unlawful discrimination with the EEOC
    with respect to the District’s failure to promote her to the director of counseling
    services position. “Although an EEOC complaint need not specifically articulate the
    4
    Because there are genuine issues of material fact concerning Humphries’s
    claims, the district court did not err in denying Humphries’s motion for summary
    judgment.
    -12-
    precise claim, it must nevertheless be sufficient to give the employer notice of the
    subject matter of the charge and identify generally the basis for a claim.” Fair v.
    Norris, 
    480 F.3d 865
    , 867 n.2 (8th Cir. 2007) (internal quotation omitted). Thus, we
    agree with the district court that summary judgment is appropriate because Humphries
    failed to exhaust her administrative remedies on her claim that the District’s failure
    to promote her to the director of counseling services position was racially
    discriminatory. See Nat’l R.R. Passenger Corp. v. Morgan, 
    536 U.S. 101
    , 114 (2002)
    (explaining that discrete acts such as failure to hire are “easy to identify,” and noting
    that “[e]ach incident of [alleged] discrimination . . . constitutes a separate actionable
    ‘unlawful employment practice’”).
    III.   CONCLUSION
    For the foregoing reasons, we reverse the district court’s grant of summary
    judgment to the District with respect to Humphries’s assistant principal claims, affirm
    the grant of summary judgment on her director of counseling claim, and remand for
    proceedings consistent with this opinion. We also reinstate Humphries’s state law
    claims so that the district court may reconsider whether to hear the state law claims
    along with the federal claims. See Rorie v. United Parcel Serv., Inc., 
    151 F.3d 757
    ,
    763 (8th Cir. 1998).
    MELLOY, Circuit Judge, concurring in part.
    While I agree with the majority’s opinion in large part, I write separately to
    emphasize that compliance with a valid remedial consent decree is a complete defense
    to claims for individualized relief. See Martinez v. City of St. Louis, 
    539 F.3d 857
    ,
    861 (8th Cir. 2008). On remand, the district court’s inquiry should focus on whether
    the policies now at issue were implemented pursuant to the consent decree.
    -13-
    This is not the first time we have considered a discrimination claim in the
    context of a consent decree, and not all consent decrees play the same role in any
    ensuing litigation. In Maitland v. University of Minnesota, a male university faculty
    member brought a gender-based discrimination claim against a university, challenging
    the university’s affirmative action salary plan. 
    155 F.3d 1015
     (8th Cir. 1998). In that
    case, we repeated our holding in Donaghy v. City of Omaha, 
    933 F.2d 1448
    , 1459 (8th
    Cir. 1991), that “the employer’s required showing in defense of its plan remains the
    same notwithstanding the court’s sanction.” Maitland, 155 F.3d at 1016. Importantly,
    however, we noted in Maitland that the affirmative action plan could not “be said to
    have been imposed after making a formal finding of intentional discrimination.” Id.
    (internal quotation omitted). In discounting the relevance of the consent decree, we
    noted that the court issuing the decree “frankly acknowledge[d] there [was] an open
    question as to whether discrimination even exist[ed].” Id. at 1018. Similarly, in
    Donaghy, we distinguished the consent decree there at issue from “a remedial plan
    that a court has imposed after making a formal finding of intentional discrimination.”
    933 F.2d at 1459. While it remains true that an affirmative action policy implemented
    pursuant to a court-approved compromise may not always “guarantee that the policies
    serve a remedial purpose,” ante, at *11 (alteration omitted), the same cannot be said
    of all policies or all consent decrees.
    In contrast to Maitland and Donaghy, and notwithstanding Humphries’s
    assertions to the contrary, the historically pervasive discrimination in the District has
    been subject to decades of litigation, and desegregation of administrative staff has
    long been considered integral to the broader desegregation goals. See, e.g., Little
    Rock Sch. Dist. v. N. Little Rock Sch. Dist., 
    451 F.3d 528
    , 529 (8th Cir. 2006); Little
    Rock Sch. Dist. v. Pulaski County Spec. Sch. Dist. No. 1, 
    778 F.2d 404
     (8th Cir.
    1985) (en banc). As such, Maitland and Donaghy are limited in their present
    application. Here, unless the remedial consent decree was invalid when entered into,
    compliance with the decree “is a complete defense to . . . claims for damages and other
    individualized relief” until such time as the decree is modified or dissolved. Martinez,
    -14-
    539 F.3d at 861. Here, the validity of the consent decree when entered into remains
    unchallenged, and the consent decree had not been dissolved at the time of the alleged
    discrimination (and has not been dissolved to date). Thus, the primary question is not
    whether the affirmative action policies were independently remedial nor whether there
    was a manifest imbalance in assistant principal positions but whether the affirmative
    action policies were implemented pursuant to the remedial consent decree.
    The majority correctly explains that Humphries has raised a triable question as
    to whether the District’s affirmative action policies were linked to its decision not to
    promote her but that she must also show that the relevant policies are invalid. Ante,
    at *10. In light of the existing remedial consent decree, however, the initial focus of
    the validity analysis must be whether the affirmative action policies at issue fall within
    the scope of that decree. The express terms of Plan 2000 provide the starting point of
    this analysis, but they do not provide the ending point, for, as the majority notes, Plan
    2000 is subject to ongoing monitoring by the ODM. Ante, at *4. While the consent
    decree “cannot be used to justify actions aside from those mandated by its own terms,”
    Martinez, 539 F.3d at 861 (quotation omitted), I disagree with the majority’s
    conclusion that other court orders or ODM mandates would not afford the District the
    same defense as that which would be provided if found in the express terms of Plan
    2000. See ante, at *11. Accordingly, in determining whether the District’s
    affirmative action plans are valid, on remand the district court should first consider
    whether the policies were implemented pursuant to the consent decree then in place,
    whether through the express language of Plan 2000 or otherwise.
    ______________________________
    -15-
    

Document Info

Docket Number: 08-2485

Filed Date: 9/3/2009

Precedential Status: Precedential

Modified Date: 10/14/2015

Authorities (23)

McGarry v. Board of County Commissioners , 175 F.3d 1193 ( 1999 )

Ronald A. BROWN, Plaintiff-Appellant, v. Jacqueline F. ... , 159 F.3d 898 ( 1998 )

mohamed-el-deeb-v-university-of-minnesota-regents-of-the-university-of , 60 F.3d 423 ( 1995 )

Little Rock School District v. Pulaski County Special ... , 778 F.2d 404 ( 1985 )

Thirty and 141, LP v. LOWE'S HOME CENTERS, INC. , 565 F.3d 443 ( 2009 )

carol-frank-derrey-horn-cynthia-stubblefeild-walker-individually-and-on , 347 F.3d 130 ( 2003 )

Chao v. Barbeque Ventures, LLC , 547 F.3d 938 ( 2008 )

Fields v. Shelter Mutual Insurance , 520 F.3d 859 ( 2008 )

ian-maitland-v-university-of-minnesota-regents-of-the-university-of , 155 F.3d 1013 ( 1998 )

Charles W. Hammer v. John Ashcroft, Attorney General, ... , 383 F.3d 722 ( 2004 )

Thomas J. Donaghy v. City of Omaha, a Municipal Corporation,... , 933 F.2d 1448 ( 1991 )

Martinez v. City of St. Louis , 539 F.3d 857 ( 2008 )

little-rock-school-district-lorene-joshua-leslie-joshua-stacy-joshua-wayne , 451 F.3d 528 ( 2006 )

little-rock-school-district-lorene-joshua-as-next-friend-of-minors-leslie , 921 F.2d 1371 ( 1990 )

Frank Cerrato v. San Francisco Community College District , 26 F.3d 968 ( 1994 )

Jin Ku Kim, Appellant/cross-Appellee v. Nash Finch Company, ... , 123 F.3d 1046 ( 1997 )

Lisa A. RORIE, Appellant, v. UNITED PARCEL SERVICE, INC., ... , 151 F.3d 757 ( 1998 )

viola-fair-v-larry-norris-director-arkansas-department-of-correction , 480 F.3d 865 ( 2007 )

Hazelwood School District v. United States , 97 S. Ct. 2736 ( 1977 )

McDonnell Douglas Corp. v. Green , 93 S. Ct. 1817 ( 1973 )

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