UNITED STATES COURT OF APPEALS

                        FOR THE FIFTH CIRCUIT



                                No. 96-11138




DALLAS FIRE FIGHTERS ASSOCIATION; TONY L. SPECK;
JOHN W. McKINNEY; HAROLD JERPI, JR.; MICHAEL L.
McGEHEE; JOSEPH E. McKENNA; DANNY BECK; CURTIS
P. JULIAN; LOUIE McKAY, JR.; RICHARD WACHSMAN;
HAL COLLINS; HASKELL WILLEFORD; MICHAEL A.
DAVAULT, on behalf of Michael E. Davault,
                                                          Plaintiffs-Appellees,
                                     versus

DALLAS TX., CITY OF; DODD MILLER, Chief,
                                                       Defendants-Appellants.
                            *    *     *      *   *

JESUS A. CANTU, JR.; TOMMY CRAWFORD; PAUL EDWARD
DAVIS; RICHARD EARL GAMBRELL; STEPHEN LOUIS MULVANY;
RONNIE W. ROE; GLENN TRUEX; BRYANT E. TILLERY; THOMAS
R. TANKSLEY; SAMMY DON SLINE; JOHNNY L. RUDDER; JIMMY
L. PATTON; ROBERT A. DAVIS; GREGORY J. COURSON; RAY F.
REED; DONNIE G. CAMPBELL; GERALD D. BROWN; JOHNNY K.
BATES; ROY G. FERGUSON; KEN BAILEY; THOMAS E. TAYLOR;
CHARLES RICHARD SAUNDERS, JR.; PAUL W. JULIAN; MICHAEL
J. HUGHES; STEVEN CORDER; TIMOTHY J. SEYMORE; KENNETH
HARRIS; JOHN E. KECK, SR.,
                                            Plaintiffs-Appellees,
                               versus

DALLAS, TX., CITY OF; DODD MILLER, Chief,
                                                      Defendants-Appellants.
                            *    *     *      *   *
PAUL A. SKOOG; JAMES B. LAMAR; JOHN R. COLWICK; KURTIS
R. ALLEN; JOHN D. SHOOK; DAVID D. KINNEY; SAMUEL C.
BRODNER; KYLE G. COWDEN; RUSSELL T. JONES; JAMES R.
JONES; RONALD W. HALL; JOHN D. SUTTON; JAMES C. PEARSON;
JAMES E. BYFORD; GEORGE TOMASOVIC; STEVEN B. WISE;
BRENT K. ROGERS; JOHN P. NIMMO; JAMES A. JORDAN; ARTHUR
R. SULLIVAN, JR.; GARY P. BACZKOWSKI; GLENN D. DICKERSON;
WALLACE J. GRAVES; JACK S. MARTIN; RANDY M. MYERS;
ROBERT D. McCRIMMEN; ALLEN R. MULLINS; DAVID MASK;
PARKE E. MAINZ,
                                                  Plaintiffs-Appellees,
                                versus

DALLAS, TX., CITY OF; DODD MILLER, Chief,
                                                               Defendants-Appellants.

                                   *     *     *      *   *

KENNETH D. MOORE, MICHARL WATSON,
                                                                 Plaintiffs-Appellees,
                                             versus

DALLAS, TX., CITY OF; DODD MILLER, Chief,
                                                               Defendants-Appellants.


                       Appeal from the United States District Court
                           for the Northern District of Texas


                                       August 5, 1998
Before POLITZ, Chief Judge, HIGGINBOTHAM and SMITH, Circuit Judges.

POLITZ, Chief Judge:

      The City of Dallas appeals an adverse summary judgment striking down as

violative of constitutional and statutory protections race and gender-conscious


                                               2
promotions made under the City’s affirmative action plan. The City also appeals

the denial of a motion for summary judgment regarding the validity of an

appointment of a black firefighter to the position of deputy chief. For the reasons

assigned, we affirm in part and reverse and render in part.

                                 BACKGROUND

      The Dallas Fire Department (DFD) has the following rank structure,

beginning with the entry level position: (1) fire and rescue officer, (2) driver-

engineer, (3) lieutenant, (4) captain, (5) battalion chief, (6) deputy chief, (7)

assistant chief, and (8) chief. Positions are filled only from within the department.

The city manager appoints the chief who in turn appoints the assistant and deputy

chiefs. For battalion chief and below, firefighters become eligible to take a

promotion examination for advancement to the next highest rank after a certain

amount of time in grade. Those passing the examination are placed on an

eligibility roster, listed in accordance with their scores. Vacancies occurring

thereafter are filled by promoting individuals from the top of the eligibility list,

unless there is a countervailing reason such as unsatisfactory performance,

disciplinary problems, or non-paramedic status.

      In 1988 the City Council adopted a five-year affirmative action plan for the

DFD, extending same for five years in 1992 with a few modifications. In an effort

                                         3
to increase minority and female representation the DFD promoted black, hispanic,

and female firefighters ahead of male, nonminority firefighters who had scored

higher on the promotion examinations. Between 1991 and 1995 these promotions

occasioned four lawsuits filed by the Dallas Fire Fighters Association on behalf of

white and Native American male firefighters who were passed over for promotions.

These actions were consolidated by the district court.

       The plaintiffs consist of four groups, three of which contend that the DFD

impermissibly denied them promotions to the ranks of driver-engineer, lieutenant,

and captain respectively. Additionally, a fourth group of plaintiffs challenges the

fire chief’s appointment of a black male to deputy chief in 1990. The plaintiffs

claim that the City and the fire chief, Dodd Miller, acting in his official capacity,

violated: (1) the fourteenth amendment of the United States Constitution, 1 (2) the

equal rights clause of the Texas Constitution, (3) Title VII of the Civil Rights Act

of 1964, 42 U.S.C. §§ 2000e et seq., and (4) article 5221k of the Texas Civil

Statutes.2

       The district court granted summary judgment in favor of the plaintiffs

challenging the out-of-rank promotions, finding violations of their constitutional


   1
    This claim is brought under 42 U.S.C. § 1983.
   2
    Now codified as Tex. Labor Code §§ 21.001 et seq.

                                           4
and statutorily protected rights. The court denied the City’s motions for summary

judgment, and denied the plaintiffs’ motion for summary judgment as to the deputy

chief appointment. The court subsequently entered an order consolidating the

action that had yet to be resolved. Thereafter the court entered an agreed order

regarding remedies and entered final judgment in the consolidated action. The City

timely appealed.

                                     ANALYSIS

1. Standard of Review

       We review a district court’s entry of summary judgment de novo, applying

the same standards used by the district court.3 Summary judgment is only proper

if there is no genuine issue as to any material fact and the moving party is entitled

to judgment as a matter of law.4

2. The Out-of-Rank Promotions5

       A. Race-Conscious Promotions

       To survive an equal protection challenge under the fourteenth amendment,



   3
    Orleans Parish School Bd. v. Asbestos Corp., 

(5th Cir. 1997).
   4
    Fed.R.Civ.P. 56(c).
   5
    We address only the validity of the out-of-rank promotions and not the affirmative
action plan as a whole.

                                            5
a racial classification must be tailored narrowly to serve a compelling

governmental interest.6 That standard applies to classifications intended to be

remedial, as well as to those based upon invidious discrimination.7 A governmental

body has a compelling interest in remedying the present effects of past

discrimination.8 In analyzing race conscious remedial measures we essentially are

guided by four factors: (1) necessity for the relief and efficacy of alternative

remedies; (2) flexibility and duration of the relief; (3) relationship of the numerical

goals to the relevant labor market; and (4) impact of the relief on the rights of third

parties.9

          We conclude that on the record before us the race-based, out-of-rank

promotions at issue herein violate the equal protection clause of the fourteenth

amendment.10 The only evidence of discrimination contained in the record is the

1976 consent decree between the City and the United States Department of Justice,


   6
    City of Richmond v. J.A. Croson Co., 

(1989).
   7
    

28 of Sheet Metal Workers’ Int’l Ass’n v. E.E.O.C., 478 U.S 421 (1986).
   9
   United States v. Paradise, 

(1987) (4-justice plurality); Black Fire
Fighters Ass’n of Dallas v. City of Dallas, 

(5th Cir. 1994).
   10
    We also find a violation of the equal rights clause of the Texas constitution which is
construed in conformity with the federal constitution. Rose v. Doctors Hospital, 

(Tex. 1990).

                                            6
precipitated by a DOJ finding that the City engaged in practices inconsistent with

Title VII, and a statistical analysis showing an underrepresentation of minorities in

the ranks to which the challenged promotions were made. The record is devoid of

proof of a history of egregious and pervasive discrimination or resistance to

affirmative action that has warranted more serious measures in other cases.11 We

are aware that the out-of-rank promotions do not impose as great a burden on

nonminorities as would a layoff or discharge. In light of the minimal record

evidence of discrimination in the DFD, however, we perforce must conclude that

the City is not justified in interfering with the legitimate expectations of those

warranting promotion based upon their performance in the examinations. 12

        There are other ways to remedy the effects of past discrimination. The City

contends, however, that alternative measures employed by the DFD, such as

validating promotion exams, recruiting minorities, eliminating the addition of


   11
     Compare 

(finding “pervasive, systematic, and obstinate
discriminatory conduct” which “created a profound need and a firm justification for the
race-conscious relief ordered by the District Court”); Sheet Metal 

(upholding race-based remedy where there was egregious record of discrimination
and official resistance to practices aimed at ending discrimination); see also Black Fire
Fighters 

(contrasting the DFD’s employment practices with that
found in Sheet Metal Workers and International Brotherhood of Teamsters v. United
States, 

(1977), where there was “a pattern of lying to minority applicants
and deliberately losing their applications.”).
   12
     See Black Fire Fighters Ass’n.

                                            7
seniority points to promotion exam scores, and initiating a tutoring program, have

been unsuccessful, as evidenced by the continuing imbalance in the upper ranks of

the DFD. That minorities continue to be underrepresented does not necessarily

mean that the alternative remedies have been ineffective, but merely that they

apparently do not operate as quickly as out-of-rank promotions. 13

        B. Gender-Conscious Promotions

        Applying the less exacting intermediate scrutiny analysis applicable to

gender-based affirmative action,14 we nonetheless find the gender-based promotions

unconstitutional. The record before us contains, as noted above, little evidence of

racial discrimination; it contains even less evidence of gender discrimination.

Without a showing of discrimination against women in the DFD, or at least in the

industry in general, we cannot find that the promotions are related substantially to

an important governmental interest.

   13
     The City points to several features of the promotional plan that weigh in favor of its
constitutionality, e.g., (1) only qualified individuals are promoted; (2) the DFD uses
banding of test scores to ensure that the beneficiaries of the out-of-rank promotions are
equally qualified to those whom they pass over; (3) the affirmative action plan under
which the promotions are made lasts only five years; (4) the affirmative action
promotions to a rank will cease when the manifest imbalance in the rank is eliminated;
and (5) only 50% of annual promotions to a rank may be made under the affirmative
action plan. Although those factors support the City’s position, they are not enough to
overcome the minimal record evidence of discrimination that is sufficient to support only
the use of less intrusive alternative remedies.
   14
     See Mississippi University for Women v. Hogan, 

(1982).

                                             8
C. Title VII

        Having struck down the out-of-rank promotions as unconstitutional, we need

not address their validity under Title VII or Texas article 5221k.

3. The Deputy Chief Appointment

        The City contends that the district court erred in failing to grant its motion

for summary judgment on the ground that Chief Miller’s appointment of Robert

Bailey, a black male, to deputy chief violated neither Title VII nor article 5221k.15

To determine the validity of the appointment we must examine whether it was

justified by a manifest imbalance in a traditionally segregated job category and

whether the appointment unnecessarily trammeled the rights of nonminorities or

created an absolute bar to their advancement.16 The plaintiffs do not dispute that

there is a manifest imbalance in the rank of deputy chief and we therefore limit our

discussion to the second prong of the Johnson test.

        The only summary judgment evidence specific to the Bailey appointment



   15
     Article 5221k states that it is intended to achieve the goals embodied in Title VII.
See also Chevron Corp. v. Redmon, 

(Tex. 1987). We note that neither
the parties nor the district court make any mention of the constitutionality of the deputy
chief appointment. We therefore decline to address that issue.
   16
     Johnson v. Transportation Agency, 

(1987).

                                            9
is the affidavit of Chief Miller in which he states:


      In 1990, I selected Robert Bailey as Deputy Chief because I believed
      he was capable of performing the job responsibilities of the position
      of Deputy Chief, and he was recommended by my executive staff. In
      addition, the appointment of Chief Bailey was made pursuant to the
      City of Dallas Affirmative Action Plan.

The City contends that Chief Miller’s statement reflects that, in appointing Bailey,

he considered race as one factor among many, making the appointment permissible

under Johnson. The plaintiffs concede that Bailey was qualified but insist that the

reference to the affirmative action plan, and the failure of Chief Miller to explain

how Bailey compared to other candidates, established that Chief Miller based his

final decision solely upon race. The plaintiffs also contend that the promotional

goals in the affirmative action plan are out of proportion to the percentage of

available candidates, demonstrating that the appointment was made to fulfill

impermissible goals and, thus, unnecessarily trammeled the rights of nonminorities.



      The plaintiffs’ position is that any employment decision utilizing the

affirmative action plan is illegal. We decline to accept that contention, particularly

in light of the fact that the validity of the affirmative action plan is not in question

herein. We are persuaded beyond peradventure that the mere reference to the


                                          10
affirmative action plan does not create a fact issue concerning whether Chief Miller

had an impermissible motive in promoting Bailey. The only relevant summary

judgment evidence reflects that Chief Miller chose Bailey based upon substantially

more than just his race, and the opponents have failed to produce any acceptable

material evidence to the contrary.17 We therefore conclude that the appointment

did not unnecessarily trammel the rights of nonminorities or pose an absolute bar

to their advancement. Accordingly, the appointment was consistent with Title VII

and article 5221k and the district court erred in failing to grant the City’s motion

for summary judgment upholding its validity.

4. Conclusion

        For the foregoing reasons, we AFFIRM the judgment striking down the out-

of-rank promotions and we REVERSE and RENDER judgment in favor of the

City, upholding the validity of the deputy chief appointment.




   17
     The plaintiffs contend that a triable issue of fact exists because Chief Miller’s
affidavit is inconsistent with the City’s response to an interrogatory concerning the reason
for Bailey’s appointment, which does not mention the recommendation by the executive
staff. This contention is wholly lacking in merit.

                                            11
JERRY E. SMITH, Circuit Judge, dissenting in part:



      Although I join the panel opinion insofar as it affirms the judgment holding

unconstitutional the Dallas Fire Department's “skip promotion” practice used to

advance the “goals” of its affirmative action plan, I would also affirm the district

court's decision to allow those plaintiffs who sought the Deputy Chief position

(“the Deputy Chief plaintiffs”) to proceed to trial on their claims. I therefore

respectfully dissent in part.

      The Deputy Chief plaintiffs vary from the other plaintiffs in an important

respect. The promotion system for the other plaintiffs was strictly mathematical,

so it is known that persons were promoted solely on the basis of race. The Deputy

Chief, on the other hand, was appointed by Chief Dodd Miller. It is possible that

he considered factors in addition to race in deciding whom to promote.

      There is a genuine issue of material fact concerning Miller's motivations. He

may have followed the unconstitutional “skip promotion” practice by deciding who

was qualified for the job, then promoting the qualified minority candidate, if one

existed.   If he did so, the promotion was just as illegal as were the other

promotions.

      In his affidavit, Miller swears that he considered factors other than race. He
never states, however, that his decision was not ultimately controlled by the “goals”

of the affirmative action plan.18 The existence of that generally-enforced plan, with

its generally-applicable “goals,” creates a genuine issue of material fact concerning

Miller's motivations. See Messer v. Meno, 

, 137-39 (5th Cir. 1997).

For this reason, summary judgment was inappropriate, and this claim should

proceed to trial.

      Accordingly, because the judgment should be affirmed in its entirety, I

respectfully dissent in part.




      18
        The “goals” applied to across-the-board hiring decisions, including
those regarding “Fire Executives,” such as Deputy Chiefs.

                                         13