Taxman v. Board of Educ. of Tp. of Piscataway

Page 1547

91 F.3d 1547

71 Fair Empl.Prac.Cas. (BNA) 848,

68 Empl. Prac. Dec. P 44,182, 65 USLW 2118,

111 Ed. Law Rep. 696

Sharon TAXMAN, Plaintiff-Intervenor, v. BOARD OF EDUCATION OF the TOWNSHIP OF PISCATAWAY, Appellant.

Sharon TAXMAN, Appellant, v. BOARD OF EDUCATION OF the TOWNSHIP OF PISCATAWAY.

Nos. 94-5090, 94-5112.

United States Court of Appeals Third Circuit.

Argued Nov. 29, 1995.

Reargued In Banc May 14, 1996.

Decided Aug. 8, 1996.

As Amended Aug. 21, 1996.

David B. Rubin (argued), Metuchen, NJ, for Board of Education of the Township of Piscataway.

Stephen E. Klausner (argued), Klausner, Hunter, Cige & Seid, Somerville, NJ, for Sharon Taxman.

Before: SLOVITER, ^* Chief Judge, MANSMANN and MCKEE, Circuit Judges.

Before: SLOVITER, Chief Judge, BECKER, STAPLETON, MANSMANN, GREENBERG, SCIRICA, COWEN, NYGAARD, ALITO, ROTH, LEWIS, McKEE and SAROKIN, ^** Circuit Judges.

OPINION OF THE COURT

MANSMANN, Circuit Judge.

In this Title VII matter, we must determine whether the Board of Education of the Township of Piscataway violated that statute when it made race a factor in selecting which of two equally qualified employees to lay off. Specifically, we must decide whether Title VII permits an employer with a racially balanced work force to grant a non-remedial racial preference in order to promote "racial diversity".

It is clear that the language of Title VII is violated when an employer makes an employment decision based upon an employee's race. The Supreme Court determined in United Steelworkers v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979), however, that Title VII's prohibition against racial discrimination is not violated by affirmative action plans which first, "have purposes that mirror those of the statute" and second, do not "unnecessarily trammel the interests of the [non-minority] employees," id. at 208, 99 S.Ct. at 2730.

We hold that Piscataway's affirmative action policy is unlawful because it fails to satisfy either prong of Weber. Given the clear antidiscrimination mandate of Title VII, a non-remedial affirmative action plan, even one with a laudable purpose, cannot pass muster. We will affirm the district court's grant of summary judgment to Sharon Taxman.

I. ¹

In 1975, the Board of Education of the Township of Piscataway, New Jersey, developed an affirmative action policy applicable to employment decisions. The Board's Affirmative Action Program, a 52-page document, was originally adopted in response to a regulation promulgated by the New Jersey State Board of Education. That regulation directed local school boards to adopt "affirmative action programs," N.J. Admin. Code Tit. 6 § 6:4-1.3(b), to address employment as well as school and classroom practices and to ensure equal opportunity to all persons regardless of race, color, creed, religion, sex or national origin. N.J. Admin. Code Tit. 6 §§ 6:4-1.5, 6:4-1.6(a). In 1983 the Board also adopted a one page "Policy", entitled "Affirmative Action--Employment Practices." It is not clear from the record whether the "Policy" superseded or simply added to the "Program," nor does it matter for purposes of this appeal.

The 1975 document states that the purpose of the Program is "to provide equal educational opportunity for students and equal employment opportunity for employees and prospective employees," and "to make a concentrated effort to attract ... minority personnel for all positions so that their qualifications can be evaluated along with other candidates." The 1983 document states that its purpose is to "ensure[ ] equal employment opportunity ... and prohibit[ ] discrimination in employment because of [, inter alia,] race...."

The operative language regarding the means by which affirmative-action goals are to be furthered is identical in the two documents. "In all cases, the most qualified candidate will be recommended for appointment. However, when candidates appear to be of equal qualification, candidates meeting the criteria of the affirmative action program will be recommended." The phrase "candidates meeting the criteria of the affirmative action program" refers to members of racial, national origin or gender groups identified as minorities for statistical reporting purposes by the New Jersey State Department of Education, including Blacks. The 1983 document also clarifies that the affirmative action program applies to "every aspect of employment including ... layoffs...." ²

The Board's affirmative action policy did not have "any remedial purpose"; it was not adopted "with the intention of remedying the results of any prior discrimination or identified underrepresentation of minorities within the Piscataway Public School System." At all relevant times, Black teachers were neither "underrepresented" nor "underutilized" in the Piscataway School District work force. ³ Indeed, statistics in 1976 and 1985 showed that the percentage of Black employees in the job category which included teachers exceeded the percentage of Blacks in the available work force.

A.

In May, 1989, the Board accepted a recommendation from the Superintendent of Schools to reduce the teaching staff in the Business Department at Piscataway High School by one. At that time, two of the teachers in the department were of equal seniority, both having begun their employment with the Board on the same day nine years earlier. One of those teachers was intervenor plaintiff Sharon Taxman, who is White, and the other was Debra Williams, who is Black. Williams was the only minority teacher among the faculty of the Business Department.

Decisions regarding layoffs by New Jersey school boards are highly circumscribed by state law; nontenured faculty must be laid off first, and layoffs among tenured teachers in the affected subject area or grade level must proceed in reverse order of seniority. N.J. Stat. Ann. § 18A:28-9 et seq. Seniority for this purpose is calculated according to specific guidelines set by state law. N.J. Stat. Ann. § 18A:28-10; N.J. Admin. Code Tit. 6 § 6:3-5.1. Thus, local boards lack discretion to choose between employees for layoff, except in the rare instance of a tie in seniority between the two or more employees eligible to fill the last remaining position.

The Board determined that it was facing just such a rare circumstance in deciding between Taxman and Williams. In prior decisions involving the layoff of employees with equal seniority, the Board had broken the tie through "a random process which included drawing numbers out of a container, drawing lots or having a lottery." ⁴ In none of those instances, however, had the employees involved been of different races.

In light of the unique posture of the layoff decision, Superintendent of Schools Burton Edelchick recommended to the Board that the affirmative action plan be invoked in order to determine which teacher to retain. Superintendent Edelchick made this recommendation "because he believed Ms. Williams and Ms. Taxman were tied in seniority, were equally qualified, and because Ms. Williams was the only Black teacher in the Business Education Department."

While the Board recognized that it was not bound to apply the affirmative action policy, it made a discretionary decision to invoke the policy to break the tie between Williams and Taxman. As a result, the Board "voted to terminate the employment of Sharon Taxman, effective June 30, 1988...."

At her deposition, Paula Van Riper, the Board's Vice President at the time of the layoff, described the Board's decision-making process. According to Van Riper, after the Board recognized that Taxman and Williams were of equal seniority, it assessed their classroom performance, evaluations, volunteerism and certifications and determined that they were "two teachers of equal ability" and "equal qualifications."

At his deposition Theodore H. Kruse, the Board's President, explained his vote to apply the affirmative action policy as follows:

A. Basically I think because I had been aware that the student body and the community which is our responsibility, the schools of the community, is really quite diverse and there--I have a general feeling during my tenure on the board that it was valuable for the students to see in the various employment roles a wide range of background, and that it was also valuable to the work force and in particular to the teaching staff that they have--they see that in each other.

Asked to articulate the "educational objective" served by retaining Williams rather than Taxman, Kruse stated:

A. In my own personal perspective I believe by retaining Mrs. Williams it was sending a very clear message that we feel that our staff should be culturally diverse, our student population is culturally diverse and there is a distinct advantage to students, to all students, to be made--come into contact with people of different cultures, different background, so that they are more aware, more tolerant, more accepting, more understanding of people of all background.

Q. What do you mean by the phrase you used, culturally diverse?

A. Someone other than--different than yourself. And we have, our student population and our community has people of all different background, ethnic background, religious background, cultural background, and it's important that our school district encourage awareness and acceptance and tolerance and, therefore, I personally think it's important that our staff reflect that too.

B.

Following the Board's decision, Taxman filed a charge of employment discrimination with the Equal Employment Opportunity Commission. Attempts at conciliation were unsuccessful, and the United States filed suit under Title VII against the Board in the United States District Court for the District of New Jersey. ⁵ Taxman intervened, asserting claims under both Title VII and the New Jersey Law Against Discrimination (NJLAD).

Following discovery, the Board moved for summary judgment and the United States and Taxman...