Joseph James Lenihan, Pueblo, Colo., for plaintiff-appellee.

Kathleen K. Hearn (David W. Crockenberg and Thomas T. Farley on the brief) of Petersen & Fonda, Pueblo, Colo., for defendant-appellant.

Before ANDERSON and BRORBY, Circuit Judges, and THEIS,* District Judge.

THEIS, District Judge.

I.

This appeal follows a trial to the court brought under 42 U.S.C. Secs. 1981, 1983, and under Sec. 706 of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Sec. 2000e-5, in which plaintiff alleged that she had been discriminated against in her employment by defendant-appellant School District. The trial court found in plaintiff's favor on the issues of liability and awarded various forms of relief, from which defendant appeals. 693 F. Supp. 954. The court also denied plaintiff's costs for an expert witness and plaintiff appeals this order. 705 F. Supp. 1466. We affirm.1

Connie Cunico is a white woman who began her employment with School District 60 ("the District") on February 27, 1977 as a social worker. She had obtained her masters degree in social work and was certified under state law. Colorado statutory law classifies its teachers and other professional personnel in the public schools according to a certification system. Under this system, school social workers, as well as numerous other non-teaching professionals, must be certified as "Type E" employees by the State Board of Education. Type E certificate holders are further classified by "endorsements," one of which is the endorsement of social worker. Regardless of the particular endorsement, Type E certificate holders are employed as "probationary employees" for their first three years, after which time they receive "tenure status." Accordingly, plaintiff's employment contract for the school year 1981-82 specified her status as "tenure." Although plaintiff testified that she understood tenure status to mean that she had achieved "job security" after her third year of employment, this classification was not the equivalent of statutory tenure under the Colorado Teacher Employment, Dismissal and Tenure Act, ch. 435, 1967 Colo.Sess.Laws 976 (codified as amended at Colo.Rev.Stat. Sec. 22-63-101 et seq. (1973 & Supp.)). With respect to its social workers, the practice of the District was to enter into annual contracts each school year that lasted 205 days, which was the term of plaintiff's contract for the 1981-82 school year.2 Plaintiff's Eht. 45.

The District began experiencing financial difficulties during the 1981-82 school year, forcing the Pueblo School Board to reduce its expenditures by various budgetary measures. Among the measures ultimately adopted by the Board was the cancellation of the contracts of certain employees. The Board sought to minimize the disruption of actual classroom teaching by making its expenditure cuts as far away from the classroom as possible. Because the activities of social workers did not directly relate to the classroom, this endorsement received low priority in developing a layoff policy, and the Board initially decided to cancel the contracts of all social workers in the District. This decision was modified, however, when the Board learned that state law required it to retain at least two social workers. To fulfill this requirement, the Board elected to retain Paula Pearson and Martin Quintana, the two social workers who had been employed the longest in the District. The contract of Connie Cunico, who held the third most senior position in the District, as well as the contracts of the other remaining five social workers were to be cancelled.

The Board developed a written policy and appeal procedure governing its reduction in force ("RIF") decisions. Defendant's Ehts. G, I. The policy statement defined "teacher" to include "other persons certified by the State Board of Education." Defendant's Eht. I. Contracts for these teachers within each endorsement area were to be cancelled according to the seniority of their probationary status, "followed by the least tenured teachers thereafter." Id. at p 3. In addition, the District personnel office was to identify "the least seniored teacher in the district in each endorsement area in the district subject to reduction," id. at p 8, and "[i]f applicable, a choice of the declared vacancies [would] be granted to the most seniored teacher in each endorsement area in the district's reassignment pool." Id. at p 10. The RIF policy statement also provided that "[i]n the event of a reduction in force, the District shall make reasonable effort to maintain, as a minimum, the percentage of minority teachers employed within the District." Defendant's Eht. G. Those who desired to contest their cancellation could submit a written request for review by the Board's designated officer, Daniel Martinez. This review consisted of a hearing during which the sole issue for determination was "whether the decision to terminate was arbitrary or capricious with respect to the individual or [was] otherwise unjustified." Defendant's Eht. G, at 2. The hearing officer would make findings and recommendations for the Board, which would then vote on the proposed action.

All six social workers whose contracts were to be cancelled requested a hearing. Among these was the request of Wayne Hunter, the only black social worker in the District. In support of his request, Mr. Hunter submitted his belief that the District had engaged in an obvious pattern of discrimination against blacks by excluding them from administrative level positions within the district. This complaint was investigated by Robert Overstake, the Executive Director of Staff Relations, and Helen Tomicich, the Director of Human Relations/Affirmative Action. These two officials recognized that the cancellation of Mr. Hunter's contract would create a temporary setback for the District's affirmative action goals, but nonetheless found no evidence of discrimination in the decisions to reduce the number of social worker positions and to accomplish these reductions on a seniority basis. Ms. Tomicich testified before the hearing officer that although the loss of the only black administrator was a "step backwards" for the District's affirmative action policy, the financial emergency necessitated Mr. Hunter's dismissal. R. Vol. III, at 251. Ms. Tomicich also testified that the District laid off its social workers according to "seniority."

The hearing officer reviewed the proposed contract cancellations and stated his findings in a February 9, 1982 letter to the Board:

The hearing officer finds the decision to terminate the social workers was not arbitrary or capricious or otherwise unjustified except in the case of Wayne Hunter. The hearing officer interprets the policy of the Board of Education regarding minority teachers to mean that they should protect with special consideration the only black administrator in the district.

On February 12, 1982, the Board accepted the hearing officer's recommendations and rescinded the termination of Mr. Hunter's contract. The cancellation of all other social worker contracts became final.

The Board rehired Rudy Armijo, an hispanic, as a fourth social worker on August 12, 1982. Like Mr. Hunter, Mr. Armijo also had less seniority than plaintiff at the time the contracts of the social workers were cancelled. At trial, defendants contended that Mr. Armijo was rehired because of his ability to speak Spanish, which would facilitate communication with the families of hispanic children. Plaintiff does not speak Spanish. The job description for this position, however, did not refer to proficiency in Spanish as a job requirement or preference. Plaintiff was not rehired until August 20, 1984.

Plaintiff filed a discrimination complaint with the Equal Employment Opportunity Commission on June 4, 1982 and exhausted her administrative appeals before instituting suit in federal court. The trial court found that the District's employment decision with respect to Mr. Hunter and plaintiff was obvious and overt racial discrimination that defendants must justify by a legitimate, non-discriminatory reason. The court found that the decision to retain Mr. Hunter was not supported by any specific provision of the District's affirmative action plan or by any racial imbalance in the relevant workforce. Further, the trial court noted that black persons constitute only 2% of the relevant workforce as well as of the Pueblo population, and concluded that the scarcity of blacks in the relevant workforce was solely responsible for any perceived racial imbalance. Accordingly, the court found the District's decision to retain Mr. Hunter, when plaintiff had superior seniority rights to a third position, was an unjustified, discriminatory action entitling plaintiff to back pay from the date of her termination and to recovery of attorney's fees. The trial court also found that the District had discriminated against plaintiff a second time when it hired Mr. Armijo. The parties stipulated to the amount of back pay and medical benefits plus interest, totaling $110,361.10, and the trial court awarded plaintiff attorney's fees and costs of $76,094.90.

II.

Our review of the trial court's findings of fact is guided by the clearly erroneous standard. Under this standard, we must affirm the trial court's findings of fact unless our review of the entire evidence leaves us "with the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S. Ct. 525, 542, 92 L. Ed. 746 (1948). Included among the findings of fact governed by this standard is a finding of intentional discrimination. Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105 S. Ct. 1504, 1511, 84 L. Ed. 2d 518 (1985).

The normal model for establishing a claim of intentional discrimination under Title VII consists of initial proof of a prima facie case and corresponding shifts in the burden of proof as set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S. Ct. 1817, 1824-25, 36 L. Ed. 2d 668 (1981). Where the plaintiff produces direct evidence of discrimination, however, strict adherence to the McDonnell Douglas test is not required. Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121, 105 S. Ct. 613, 621, 83 L. Ed. 2d 523 (1985). Nonetheless, the Supreme Court has approved of the general analytical framework of McDonnell Douglas to the extent that it requires the employer to articulate a nondiscriminatory rationale, such as the existence of an affirmative action plan, as the basis for a facially discriminatory decision. Johnson v. Transportation Agency, Santa Clara County, 480 U.S. 616, 107 S. Ct. 1442, 1449, 94 L. Ed. 2d 615 (1987). Whether discriminatory action taken under an affirmative action plan is challenged as an equal protection or a Title VII violation, the ultimate burden of proving the invalidity of the plan rests with the party challenging its validity. Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 277-78, 106 S. Ct. 1842, 1848-49, 90 L. Ed. 2d 260 (1986) (equal protection; plurality opinion); Johnson, 107 S. Ct. at 1449 (Title VII).

The District does not challenge the trial court's finding that the decision to retain Mr. Hunter was facially discriminatory. Instead, it urges that retaining the District's only black administrator was a decision made pursuant to a valid affirmative action plan. The trial court found no specific provision in the broad, aspirational language of the District's affirmative action plan3 that directly controlled this decision. The District maintains that the trial court erred in its belief that the absence of a specific provision precluded reliance on the affirmative action plan as justification for the District's action. See Johnson, 107 S. Ct. at 1449 (indicating that the existence of an affirmative action plan provides only one rationale justifying discriminatory action). Although the trial court did state that the District could not rely on the plan to justify its action, it also analyzed the Board's decision "as a discrete affirmative action" or "as inferentially authorized by the existing affirmative action plan,...." R. Vol. I, Doc. 12, at 7. For these purposes, the trial court assumed the existence of a specific provision in the affirmative action plan, analyzed the Board's decision under relevant Supreme Court decisions, and concluded that "[t]he reservation of a particular position for a specific race in an affirmative action plan is invalid." Id. at 8. We therefore need not address the District's allegation of an erroneous legal conclusion by the trial court, and instead turn to consider whether the Board's action, even if made pursuant to a specific provision in an affirmative action plan, was justified by a nondiscriminatory rationale.

The purpose of race-conscious affirmative action must be to remedy the effects of past discrimination against a disadvantaged group that itself has been the victim of discrimination.4 United Steelworkers of Am. v. Weber, 443 U.S. 193, 99 S. Ct. 2721, 61 L. Ed. 2d 480 (1979) (Title VII); Wygant, 476 U.S. at 275, 106 S.Ct. at 1847 (equal protection); Regents of University of California v. Bakke, 438 U.S. 265, 300-01, 98 S. Ct. 2733, 2753-54, 57 L. Ed. 2d 750 (1978). The level of proof necessary to justify the consideration of race in an employer's hiring practices, however, differs depending on whether the challenge invokes the equal protection clause or Title VII. Under Title VII, an affirmative action plan must be justified by the existence of a "manifest imbalance" in a traditionally segregated job category. Johnson, 107 S. Ct. at 1452. Once this imbalance is demonstrated, the court must also consider whether the rights of the discriminatee are "unnecessarily trammeled" by the affirmative action plan. Id. at 1455. By contrast, review of a claim of an equal protection violation is made under the more demanding "strict scrutiny" analysis, adopted by a majority of the Court in City of Richmond v. J.A. Croson Co., 488 U.S. 469, 109 S. Ct. 706, 721, 102 L. Ed. 2d 854 (1989); id., 109 S.Ct. at 735 (Scalia, J., joining in standard adopted by plurality). Under this standard, the preference given to minorities in the District's layoff decisions must be justified by a compelling governmental interest that is achieved only through narrowly tailored means. Wygant, 476 U.S. at 274, 106 S.Ct at 1846.5

Defendant does not contend that there is any direct evidence of past discriminatory conduct by the District in its hiring practices that would justify remedial, race-conscious affirmative action. Rather, the District supports its action in this case under two arguments. First, it argues that the Board had a compelling interest to retain Mr. Hunter in order to comply with its affirmative action plan. As already noted, there was no specific provision of the District's plan that would have required it to employ at least one black social worker or administrator. Defendant relies on a series of correspondence between it and the Office for Civil Rights ("OCR") within the Department of Health, Education, and Welfare, which gave rise to the District's affirmative action plan. Defendant's Ehts. K-T. Between 1972 and 1976 the OCR monitored the District for compliance with Title VI of the 1964 Civil Rights Act. The OCR found several instances of what it believed to be noncompliance and informed the District in the spring of 1975 of specific action it would need to take in order to remain eligible for federal funds under the Emergency School Aid Act ("ESAA"). Among the action deemed necessary by the OCR was the adoption and publication of "objective non-racial, non-ethnic criteria, to be implemented prior to September 1975, for the employment, promotion, demotion, and dismissal of professional personnel which are specific enough to insure compliance with Title VI and with the ESAA regulations." Defendant's Eht. O, p. 1, at p 2. The OCR also required a commitment by the District "to employ those teacher applicants who have been refused employment on the basis of race or national origin and who may desire employment by the district." Id. at p 4. Significantly, the correspondence contained in the record is devoid of any requirement by the OCR that the District give preferential treatment to minorities in its hiring practices. Because the District took affirmative action that does not appear to have been compelled by this administrative agency, we need not consider the merits of defendant's implied argument that threat of a loss of federal funds is a compelling governmental interest for giving preferential treatment to minorities.6 Cf. Bakke, 438 U.S. at 307-08, 98 S.Ct. at 2757 (judicial, legislative, or administrative findings of constitutional or statutory violations establishes a "substantial" governmental interest in preferring members of injured group).

As a second argument defendant maintains that it had a compelling interest in retaining Mr. Hunter because his dismissal would have resulted in the loss of the only black administrator in the District. The District may defend its averred interest in assuring at least one position for a black administrator, however, only as a necessary measure to remedy past discrimination. Because there is no direct evidence of past or present discrimination against blacks by the District,7 we consider whether a statistical imbalance exists that would give rise to the inference of discrimination. Croson, 109 S. Ct. at 726; Johnson, 107 S. Ct. at 1452.

The position at issue here is a job that requires special training. Thus, our inquiry must focus on the comparison of the percentage of minorities in the School District's employment with the percentage of those in the labor force who possess the relevant qualifications. Croson, 109 S. Ct. at 725; Johnson, 107 S. Ct. at 1452. The trial court found that the only reason for the underrepresentation of blacks was the scarcity of blacks in the relevant work force,8 and nothing in the briefs or the record gives us reason to question this finding. Given the limited number of actual positions for either social workers or administrators in the District, there is no statistical significance to be gleaned from the absence of any blacks in such a small sample when the available work force consisted of only 2% blacks.9 The District has produced no evidence of discrimination against qualified minorities in any aspect of its operations, much less with respect to minority social workers or administrators. Croson, 109 S. Ct. at 730. No statistical disparity exists that would support the inference of past discrimination.

Even assuming the existence of statistically significant evidence of discrimination, the District's actions fail the second prong of either a Title VII or equal protection analysis. In Johnson the Court upheld under Title VII an affirmative action plan that authorized consideration of the applicant's sex as one factor in its hiring decisions. The Court found that the plan did not "unnecessarily trammel" the rights of others by noting several factors. First, the plan "set[ ] aside no positions for women," and did not automatically exclude qualified males from consideration. 107 S. Ct. at 1455. Second, the plaintiff in Johnson had no absolute entitlement to the position that was awarded to a woman. Id. at 1455-56. Finally, the Court noted that the plan was designed to achieve rather than maintain a balanced workforce. Id. at 1456.

Each of these factors is absent in the present case. In contrast to the plan in Johnson, the position given to Mr. Hunter was earmarked for a black person to the exclusion of all other qualified persons. Id. at 1457; see also Croson, 109 S. Ct. at 729 (absolute preference based solely on race of applicant is not a narrowly tailored means of remedying the effects of past discrimination); Bakke, 438 U.S. at 307. Second, the trial court found that plaintiff was entitled to the position given to Mr. Hunter by virtue of her seniority.10 Third, the District's decision, which by its own terms was made to ensure employment of at least one black administrator, was intended to maintain rather than achieve a particular racial balance. See supra note 8. For the same reasons, the District's action necessarily fails the second prong of a strict scrutiny analysis. The only goal that is discernible in the District's decision to retain Mr. Hunter is that of "outright racial balancing." Croson, 109 S. Ct. at 728. The District's own affirmative action officials found no evidence of discrimination in the decision to terminate Mr. Hunter's contract, and defendant does not contended otherwise. See id. at 729 (city failed to inquire whether particular businesses had suffered from effects of past discrimination). Finally, the plurality in Wygant expressed doubt whether race-conscious layoffs, as opposed to hiring goals, can ever be deemed a narrow means of accomplishing an otherwise legitimate remedial purpose. 476 U.S. at 283, 106 S.Ct. at 1851. But see id. at 319 n. 14, 106 S. Ct. at 1871 n. 14 (Stevens, J., dissenting). Thus, the District's action is not narrowly tailored to achieve any perceived need for remedial action.