                   William T. THIGPEN, Jr., and James W. Allen, Plaintiffs-Appellants,

                                                       v.

BIBB COUNTY, GEORGIA, Sheriff's Department; and Robbie Johnson, Sheriff, Bibb County, Georgia,
in his official capacity, Defendants-Appellees.

                                                No. 99-12417.

                                       United States Court of Appeals,

                                               Eleventh Circuit.

                                                 July 7, 2000.

Appeal from the United States District Court for the Middle District of Georgia.(96-00315-CV-5-2-WDO),
Wilbur D. Owens, Jr., Judge.

Before TJOFLAT, MARCUS and KRAVITCH, Circuit Judges.

        KRAVITCH, Circuit Judge:

        This appeal centers around the challenge of two white police officers to the continued

constitutionality of an employment promotion policy adopted in settlement of a prior racial discrimination

suit against the Bibb County, Georgia, Sheriff's Department (the "Department"). The officers claim that the

promotion policy's mandate that the Department award fifty percent of all annual promotions to black officers

denies them the opportunity to compete for those promotions and thus violates their right to equal protection

of the laws as guaranteed by the Fourteenth Amendment to the United States Constitution.1

        The appeal presents four distinct legal questions: (1) whether an equal protection claim alleging

racial accounting in the conferral of promotions is cognizable; (2) whether an equal protection claim brought

pursuant to 42 U.S.C. § 1983 ("section 1983") is viable absent a companion racial discrimination claim

brought pursuant to the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e ("Title VII"); (3) whether

the burden-shifting analysis familiar to employment discrimination claims is applicable to these officers' equal




   1
     "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of
the United States; nor shall any State deprive any person of life, liberty, or property, without due process of
law; nor deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend.
XIV, § 1.
protection claims; and (4) whether the several denied promotions underpinning the officers' equal protection

claims constitute a single "continuing violation" of the Fourteenth Amendment's equal protection clause for

statute of limitations purposes. We answer the former two questions in the affirmative and the latter two in

the negative.

                           I. BACKGROUND AND PROCEDURAL HISTORY

         In 1978, James Reeves, a black male employed as a deputy sheriff by the Department, on behalf of

all past, present, and future black applicants for employment with or promotions within the Department,

commenced a class action racial discrimination suit against the Department and former Sheriff Raymond

Wilkes. In settlement of that litigation, the parties entered into, and the district court ratified, a Consent

Decree (the "Reeves Decree"), which in part provided:

         PART VIII—AFFIRMATIVE ACTION—PROMOTION GOALS

                 12. A part of the objective of this Order is to achieve a work force in which the promotion
         of black employees, is equal, (a) by job classification, (b) by department, and (c) by rate of pay. In
         furtherance of this promotion goal, during the term of this Order the Defendants shall adopt the
         promotion goals referred to below:

a.       All personnel in the Sheriff's Department will be made aware of the requirements for promotion to
         their next highest position.

b.       At least semi-annually personnel eligible for promotion will be notified.

c.       Each year at least fifty percent (50%) of the promotions will be blacks who have met the
         requirements for promotion to their next highest position.

d.       This system is to be followed until the Court shall determine that the Defendants have complied in
         good faith with this Order and the requirements of federal laws relating to employment practices.

                 ...

                 14. Anything herein notwithstanding, Defendants shall not be required to violate Title VII
         or any other laws mandating equal employment opportunity in the implementation of this section of
         the Decree.2



     2
    Reeves v. Wilkes, Civ. Action No. 78-61-MAC (M.D.Ga. Jun. 18, 1979) (memorializing and approving
the Consent Decree) (emphasis added), in R2, Tab 94, Ex. D.

                                                      2
Despite the former Sheriff's efforts to modify or dissolve the Reeves Decree and a failed attempt by white

police officers to intervene in the original Reeves suit, see generally Reeves v. Wilkes, 754 F.2d 965 (11th

Cir.1985) (rejecting the motion to intervene as untimely), the Reeves Decree continues to operate. The

Department professes complete compliance with the requirements of the Reeves Decree since its inception.

           Plaintiffs-Appellants William Thigpen, Jr., and James Allen (collectively, "Plaintiffs"), both white

males, are police officers in the Department and hold the respective ranks of Captain and Senior Lieutenant.

Pursuant to 42 U.S.C. § 1983, Plaintiffs brought the instant action against the Department and Sheriff Johnson

in his official capacity (collectively, "Defendants")3 to challenge the constitutionality of the continued

implementation of the Reeves Decree. Plaintiffs allege that continued adherence to the terms of the Reeves

Decree unconstitutionally apportions the Department's annual promotions on the basis of race, excluding them

from competing for one-half of the promotions conferred annually and precipitating the promotion of

less-qualified black applicants. Plaintiffs enumerate a total of seven promotions conferred on black officers

for which either one or both of them allegedly were not considered because of their race: Plaintiff Thigpen

assails the promotions of Robert White in 1990, Leonard Thomas in 1992, and Charles Gantt in 1996 to the

rank of Major,4 the next highest rank above his present rank of Captain; in addition to these promotions,

Plaintiff Allen assails the promotions of James Reeves in 1986, Robert White in 1989, Leonard Thomas in

1990, and Stella Davis in 1992 to the rank of Captain, the next highest rank above his present rank of Senior

Lieutenant. Of these, Defendant Sheriff Johnson conferred only the 1996 promotion of Gantt to the rank of

Captain; all others were conferred by former Sheriff Wilkes.




       3
       In addition to these defendants, Plaintiffs originally also named Bibb County and its County
Commissioners in their official capacities. The district court ordered the dismissal of these parties as
defendants, and Plaintiffs do not appeal that decision.

   4
   Unlike the other officers promoted to Major, Gantt was promoted two ranks, from Senior Lieutenant to
Major, skipping the rank of Captain.

                                                       3
        Defendants moved for summary judgment; Plaintiffs responded by moving for partial summary

judgment on liability, that is, whether the Reeves Decree is dispositive evidence of racial apportionment and

discrimination. The district court granted Defendants' and denied Plaintiffs' respective motions. This appeal

followed.

                                                  II. ANALYSIS

         The district court articulated four reasons for granting Defendants' motion for summary judgment.

First, it interpreted this circuit's law to require a plaintiff alleging an equal protection violation to demonstrate

a property or liberty interest in the opportunity or benefit denied him or her. Because Plaintiffs' claims are

premised on allegedly improper denials of promotions, in which no property or liberty interest exists, the

court held that Plaintiffs' claims are not cognizable. Second, the court held that Plaintiffs' failure to file

companion employment discrimination claims under Title VII procedurally precludes their section 1983

claims. Third, applying the burden-shifting analysis familiar to employment discrimination claims, the court

held that Plaintiffs introduced insufficient evidence to create a genuine issue of material fact as to whether

Defendants' non-discriminatory explanations for their decisions not to promote Plaintiffs were pretextual.

Fourth, because all promotions other than that of Gantt in 1996 were conferred outside of the two-year statute

of limitations, the court held that Plaintiffs' claims, to the extent that they are premised on those earlier

promotions, are time barred. On appeal, Plaintiffs assign error to each of the district court's holdings, as well

as to its denial of their cross-motion for partial summary judgment. We review the district court's disposition

of summary judgment motions and any conclusions of law drawn therein de novo. See Kirby v. Siegelman,

195 F.3d 1285, 1289 (11th Cir.1999).

A.      The Relevancy of Property or Liberty Interests to Equal Protection Claims

        We address first the district court's conclusion that Plaintiffs' equal protection claims are incognizable

because Plaintiffs had no property or liberty interest in the promotions they were denied. In reaching its

holding, the district court relied on this court's decision in Wu v. Thomas, 847 F.2d 1480, 1485 (11th



                                                         4
Cir.1988), in which we reaffirmed that "a prospective promotion is not a property or liberty interest protected

by the fourteenth amendment" and accordingly dismissed the plaintiff's section 1983 claim as meritless. The

district court relied on this passage from Wu out of context, however. The plaintiff in Wu, after repeatedly

being denied promotion to a full professorship at a state institution, alleged violations of both her equal

protection and due process rights. See id. We recognize that the Wu court's discourse concerning these two

claims does not demarcate with clarity the analysis appropriate to each claim, but we nonetheless are able to

disaggregate the court's reasoning. In the passage quoted, the court was disposing only of the plaintiff's due

process claim. See id. Later in the same paragraph, the court separately considered the plaintiff's equal

protection claim; although the court also deemed this claim meritless, its conclusion was founded not on the

plaintiff's lack of a property or liberty interest in the promotions denied her, but rather on the plaintiff's failure

to introduce evidence suggesting a discriminatory motive underlying the denials. See id.

         The district court's identification of a property or liberty interest as a required element in an equal

protection claim is erroneous because the text of the Fourteenth Amendment demonstrates that property and

liberty interests are irrelevant to equal protection claims. Of the three clauses included in the second sentence

of the Amendment's first section—the privileges and immunities clause, the due process clause, and the equal

protection clause—only the due process clause alludes to "property" and "liberty." See U.S. Const. amend.

XIV, § 1; cf. Board of Regents v. Roth, 408 U.S. 564, 569-78, 92 S.Ct. 2706-10, 33 L.Ed. 2d 548 (1972)

(discussing generally the due process clause's safeguard of property and liberty interests). In contrast, the

applicability of the equal protection clause is not limited to only those instances in which property and liberty

interests are implicated. See U.S. Const. amend. XIV, § 1. Rather, to properly plead an equal protection

claim, a plaintiff need only allege that through state action, similarly situated persons have been treated

disparately. Cf. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 3254, 87

L.Ed.2d 313 (1985); Plyler v. Doe, 457 U.S. 202, 216, 102 S.Ct. 2382, 2394, 72 L.Ed.2d 786 (1982). The

gravamen of Plaintiffs' complaints is that although all officers holding equal rank within the Department are



                                                          5
similarly situated, the Reeves Decree mandates that the promotions conferred annually by Defendants be

allocated substantially on the basis of race. Plaintiffs, therefore, have alleged proper equal protection claims.

B.       The Relationship Between Section 1983 Equal Protection Claims and Title VII Employment
         Discrimination Claims

         We next address the district court's holding that Plaintiffs' section 1983 claims are procedurally barred

because Plaintiffs did not also plead companion Title VII claims. Because this is an issue of first impression

in this circuit, we begin our analysis by recounting the evolution of the interplay between section 1983 equal

protection claims and Title VII employment discrimination claims.

         The juxtaposition of these two causes of action emerged in 1972 when Congress amended the Civil

Rights Act of 1964 to make Title VII applicable to state and municipal employers, against which section 1983

previously had been the principal avenue for seeking redress for complaints of discrimination. See Pub.L.

No. 92-261, § 2, 86 Stat. 103, 103 (1972). Courts subsequently confronted the possibility that Title VII had

supplanted section 1983 claims as the appropriate remedy against these employers, but instead found that the

legislative history of the amendments revealed that such was not Congress' intent. See, e.g., Keller v. Prince

George's County, 827 F.2d 952, 958-62 (4th Cir.1987) (exhaustively detailing the legislative history

surrounding the amendments);        see also H.R.Rep. No. 92-238, at 78-79 (1971), reprinted in 1972

U.S.C.C.A.N. 2137, 2154. Indeed, "every circuit [to] consider[ ] this issue [held] that Title VII[was] not the

exclusive remedy for discrimination claims against state or municipal employers, where those claims derive

from violations of Constitutional rights." Annis v. County of Westchester, 36 F.3d 251, 254-55 (2d Cir.1994)

(listing cases).

         Following the passage of the Civil Right Act of 1991 and amendments to Title VII made therein,

courts again considered the preclusive effect Title VII might have on section 1983 equal protection claims.

In Johnson v. City of Fort Lauderdale, 148 F.3d 1228, 1231 (11th Cir.1998), this court held that "the Civil

Rights Act of 1991 did not render Title VII ... the exclusive remed[y] for public sector employment

discrimination, thereby preempting a constitutional cause of action under [section] 1983." Accord Beardsley


                                                        6
v. Webb, 30 F.3d 524, 527 (4th Cir.1994). Section 1983 therefore remains an available cause of action for

bringing equal protection claims against municipal employers which allegedly have engaged in employment

discrimination.

        From this baseline, the district court made a considerable leap in holding that the viability of a section

1983 equal protection claim is contingent upon the concurrent pleading of a Title VII claim. To support its

holding, the district court cited Burtnick v. McLean, 953 F.Supp. 121, 123 (D.Md.1997), in which that court

grappled with what it perceived as a conflict in Fourth Circuit authority. In Keller, 827 F.2d at 962 (pre-Civil

Rights Act of 1991), and later in Beardsley, 30 F.3d at 527 (post-Civil Rights Act of 1991), the Fourth Circuit

had held that Title VII does not preempt section 1983 equal protection claims. Subsequent to both decisions,

but without disputing their holdings, the Fourth Circuit in Hughes v. Bedsole, 48 F.3d 1376, 1383 n. 6 (4th

Cir.1995), cryptically remarked that the plaintiff in that case "[could] not bring an action under [section] 1983

for violation of her Fourteenth Amendment rights because [she] originally could have instituted a Title VII

cause of action." The Burtnick court considered itself "constrained to follow the more recent pronouncement

of the Fourth Circuit in Hughes," 953 F.Supp. at 123, and accordingly entered summary judgment against all

of that plaintiff's section 1983 claims. We, however, are not so constrained and repudiate the Fourth Circuit's

apparent disposition of this issue.

        The Hughes court predicated its holding on the Supreme Court's decision in Great American Federal

Savings & Loan Ass'n v. Novotny, 442 U.S. 366, 378, 99 S.Ct. 2345, 2352, 60 L.Ed.2d 957 (1979), in which

the Court concluded that section 1985(3), the conspiracy counterpart to section 1983, "may not be invoked

to redress violations of Title VII." We find Novotny inapposite to the issue that was before the Fourth Circuit

and is now before us. The Novotny Court recognized that section 1985(3), like section 1983, is a purely

remedial statute that "provides no substantive rights itself," but instead provides a civil cause of action when

some elsewhere-defined federal right has been violated. Id. at 372, 99 S.Ct. at 2349. In his section 1985(3)

claim, the Novotny plaintiff averred only that his rights secured by Title VII had been infringed. See id. at



                                                       7
369, 99 S.Ct. at 2347. Because Title VII independently authorizes a cause of action, see 42 U.S.C. § 2000e-

5(f) (1999), the Novotny Court rationalized that a plaintiff may not allege a violation of Title VII through

section 1985(3); to hold otherwise would allow a plaintiff to avail him or herself of the statute's protection

and yet potentially circumvent the statute's prerequisite administrative protocol. See 442 U.S. at 375-76, 99

S.Ct. at 2350-51.

        Novotny 's narrow holding does not compel the conclusion reached by the Fourth Circuit in Hughes.

Unlike the Novotny plaintiff, the Hughes plaintiff did not identify Title VII as the predicate federal law

allegedly violated; rather, she claimed frustration of her equal protection rights, which are rooted in the

Constitution, not in Title VII. See 48 F.3d at 1383 n. 6. Plaintiffs here have alleged the same, and "[b]ecause

this case involves the assertion of constitutional rights, the holding of Novotny simply does not apply."5

Dickerson v. Alachua County Comm'n, 200 F.3d 761, 766-67 (11th Cir.2000).

         The only circuit squarely to have addressed the issue of whether a section 1983 equal protection

claim is viable if brought absent a companion Title VII claim is the Second Circuit. In Annis, the court, after

assenting that Title VII and section 1983 are equally cognizable causes of action available to remedy public

sector employment discrimination, reasoned that because section 1983 claims are not preempted by Title VII,

they need not be accompanied by Title VII claims. 36 F.3d at 254-55. Defendants cite no authority

suggesting that the availability of multiple causes of action obligates a plaintiff to pursue every option. We




   5
     This court acknowledged in Johnson the concern that "public employees will be able to undermine Title
VII's procedural safeguards by suing directly under [section] 1983 for unconstitutional employment
discrimination," but resolved that "such a result is merely a 'byproduct' of Congress's choice to make multiple
remedies available." 148 F.3d at 1231. Although this duplicates the argument the Supreme Court found
persuasive in Novotny, the Johnson court dismissed it. The explanation for the seemingly disparate treatment
of the argument is unremarkable, yet instructive: in Novotny, the Supreme Court foreclosed multiple causes
of action to remedy the rights created by a single statute—Title VII; in Johnson, however, this court merely
respected Congress' prerogative to create distinct causes of action to remedy rights of differing origins—Title
VII to enforce those rights secured by that statute, and section 1983 to seek the redress of rights for which
a cause of action has not been explicitly authorized, such as those guaranteed by the Constitution.

                                                      8
therefore echo the Second Circuit's conclusion in Annis6 and hold that a section 1983 claim predicated on the

violation of a right guaranteed by the Constitution—here, the right to equal protection of the laws—can be

pleaded exclusive of a Title VII claim. Although discrimination claims against municipal employers are often

brought under both Title VII and the equal protection clause (via section 1983), the two causes of action

nonetheless remain distinct. Plaintiffs' section 1983 equal protection claims, therefore, are not barred by

Plaintiffs' failure to plead Title VII claims.

C.          The Appropriate Analytical Framework for Evaluating Plaintiffs' Equal Protection Claim

            The district court also reached the merits of Plaintiffs' claims and applied the analytical framework

outlined by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817,

1824-25, 36 L.Ed.2d 668 (1973), and familiar to employment discrimination suits. We have no occasion to

review the district court's analysis, however, because we agree with Plaintiffs that McDonnell Douglas does

not provide the appropriate framework for evaluating the merits of their claims.

            The district court did not construe Plaintiffs' claims as an attack on the constitutionality of the Reeves

Decree,7 but rather as a routine complaint of several alleged instances of employment discrimination. The

district court misapprehended the true nature of Plaintiffs' claims. In their complaint, Plaintiffs alleged that

the Reeves Decree "fails to survive contemporary equal protection strict scrutiny."8 Moreover, in addition

to seeking money damages for past alleged equal protection violations, Plaintiffs requested "a declaration

invalidating and striking or modifying those provisions [of the Reeves Decree] to bring them into compliance

with current standards of Equal Protection" and "[a] corresponding injunction prohibiting defendants from




     6
         Incidentally, this court cited the Annis holding with approval in Johnson. See 148 F.3d at 1231.

     7
     See Order at 7 (granting Defendants' motion for summary judgment and denying Plaintiffs' motion for
partial summary judgment) ("The validity of the consent decree is not at issue."), in R2, Tab 99.

     8
         Thigpen Compl. at 7, in R1, Tab 1; see also Allen Compl. at 6, in R2, Tab 59.

                                                           9
making future promotions based in whole or in part on race."9 Plaintiffs thus are challenging the continued

constitutionality of the Reeves Decree insofar as it operates as a policy for appropriating promotions within

the Department.

         Although this court does "evaluate ... [section] 1983 race discrimination claims supported by

circumstantial evidence using the framework set out ... in McDonnell Douglas," Harris v. Shelby County Bd.

of Educ., 99 F.3d 1078, 1082-83 (11th Cir.1996) (emphasis added), this suit does not involve such claims.

As we previously have recognized, the Reeves Decree "establishe[d] certain mandatory racial quotas for

hiring and promotion within the Bibb County Sheriff's Department." See Reeves, 754 F.2d at 967. We

construe this provision to constitute an affirmative action plan, see In re Birmingham Reverse Discrimination

Employment Litig., 833 F.2d 1492, 1501 (11th Cir.1987) (Birmingham I ), the constitutionality of which is

evaluated according to the standard introduced in City of Richmond v. J.A. Croson Co., 488 U.S. 469, 109

S.Ct. 706, 102 L.Ed.2d 854 (1989). See Engineering Contractors Ass'n v. Metropolitan Dade County, 122

F.3d 895, 906 (11th Cir.1997) (evaluating programs that created preferences based on race and ethnicity

pursuant to Croson ).

        In Croson, the Supreme Court adjudged the constitutionality of a plan that "required prime

contractors to whom the city [of Richmond] awarded construction contracts to subcontract at least [thirty

percent] of the dollar amount of the contract to one or more [minority-owned businesses]." 488 U.S. at 477,

109 S.Ct. at 713. The Court observed that this affirmative action plan:

        denie[d] certain citizens the opportunity to compete for a fixed percentage of public [construction]
        contracts based solely upon their race. To whatever racial group these citizens belong, their
        "personal rights" to be treated with equal dignity and respect are implicated by a rigid rule erecting
        race as the sole criterion in an aspect of public decisionmaking.




    9
     Thigpen Compl. at 9-10, in R1, Tab 1; see also Allen Compl. at 7, in R2, Tab 59.

                                                     10
Id. at 493, 109 S.Ct. at 721 (plurality portion of the principal opinion). Because the plan created a facial

racial classification, a majority of the Court subjected the plan to strict scrutiny, see id.,10 which requires that

the racial classification serve a compelling governmental interest and be narrowly tailored to the achievement

of that interest, see Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 273-74, 106 S.Ct. 1842, 1847, 90 L.Ed.2d

260 (1986) (plurality portion of the principal opinion); Engineering Contractors, 122 F.3d at 906.

        Croson 's analytical framework applies with equal force to affirmative action plans that influence the

treatment of employees by governmental employers. See, e.g., In re Birmingham Reverse Discrimination

Employment Litig., 20 F.3d 1525, 1544 (11th Cir.1994) (Birmingham II ). Indeed, this court's Birmingham

II decision is particularly instructive because its underlying facts are similar to those of the instant case. In

Birmingham II, the court assessed the constitutionality of an affirmative action policy adopted in partial

settlement of an employment discrimination suit. See id. at 1530-31. Like the Reeves Decree, the

Birmingham II plan mandated that a fixed percentage of promotions within a particular job category be

awarded to black applicants, irrespective of the percentage of blacks in the labor force or applicant pool. See

id. at 1531-32. In applying the Croson framework, the court found that the municipality possessed a

compelling interest in the remediation of past discrimination within the Birmingham Fire Rescue Service.

See id. at 1545. Indeed,

        the interest that is alleged in support of racial preferences is almost always the same—remedying past
        or present discrimination. That interest is widely accepted as compelling. As a result, the true test
        of an affirmative action program is usually not the nature of the government's interest, but rather the
        adequacy of the evidence of discrimination offered to show that interest.




   10
      Although only a plurality of the court joined this portion of the opinion, Justice Scalia "agree[d] ... with
Justice O'Connor's conclusion that strict scrutiny must be applied to all governmental classification by race."
Croson, 488 U.S. at 520, 109 S.Ct. at 735-36 (Scalia, J., concurring); see also Adarand Constructors, Inc.
v. Pena, 515 U.S. 200, 222, 115 S.Ct. 2097, 2110, 132 L.Ed.2d 158 (confirming that Croson finally resolved
that "the single standard of review for racial classifications should be strict scrutiny").

                                                        11
Ensley Branch, N.A.A.C.P. v. Seibels, 31 F.3d 1548, 1565 (11th Cir.1994) (citations and quotations omitted).

In determining whether the Birmingham II plan was narrowly tailored to achieving that remediation, the court

explained:

          Several factors determine whether race-based promotional relief is narrowly tailored to accomplish
          a compelling purpose, including: the necessity for the relief and the efficacy of alternative remedies,
          the flexibility and duration of the relief, including the availability of waiver provisions, the
          relationship of numerical goals to the relevant labor market, and the impact of the relief on the rights
          of [non-minority officers].

Birmingham II, 20 F.3d at 1545 (internal citation and quotation omitted).

          We conclude that Croson, Birmingham II, and commensurate decisions, not McDonnell Douglas,

provide the proper framework in which to evaluate Plaintiffs' claims challenging the constitutionality of the

Reeves Decree. Summary judgment therefore was inappropriate, and the case is remanded for further

proceedings.11

          Defendants assert that regardless of the analytical framework, they are entitled to summary judgment

because: (1) the Reeves Decree does not require the sheriff to award individual promotions based on race;

(2) even absent the Reeves Decree, the promotions would have been awarded to the same officers; and (3)

judicial oversight of the Reeves Decree shields Defendants from liability. We find no merit in any of these

assertions.

          Defendants contend that their compliance with the Reeves Decree12 does not evince the commission

of equal protection violations because the terms of the Reeves Decree do not compel the sheriff to consider

race when awarding individual promotions. They cite the deposition testimony of Sheriff Johnson, in which



     11
        We acknowledge that in the wake of Birmingham II, Defendants' burden under the strict scrutiny
standard is an onerous one. As this court observed in Birmingham II: "Our review has located no case
approving a ... government affirmative action plan where the promotion remedy was not tied in some manner
to the representation of minorities in the pool of candidates for promotion." 20 F.3d at 1543.
    12
        Defendants profess continuous compliance with the terms of the Reeves Decree in their answer to
Plaintiffs' complaints. See Defs.' Answer to Thigpen Compl. at 9, in R1, Tab 7; Defs.'Answer Allen Compl.
at 2, in R2, Tab 72.

                                                       12
he explained that he did not perceive the Reeves Decree to create "black slots"; instead, he believed that he

had discretion to select for promotion two white or two black applicants in a row rather than to alternate his

selections between white and black applicants one-for-one.13 Because the Reeves Decree permits the sheriff

to promote officers of the same race consecutively, Defendants argue that an applicant's race is not dispositive

of his or her ability to compete for any particular promotion. Defendants' myopic explication of the mandate

of the Reeves Decree is unpersuasive. The pattern in which the promotions are conferred is irrelevant,

because the result is the same: fifty percent of the annual promotions must be awarded to black officers,

effectively excluding white officers from consideration for those promotions. Although the Reeves Decree

may not preordain the race of the officer receiving any one promotion, it does demand a racial allocation of

the promotions conferred annually, thus potentially creating the constitutional infraction identified in Croson.

         Defendants' invocation of the so-called "same decision defense" is likewise unavailing. Defendants'

contend that even absent the Reeves Decree, they would have made the identical selections for the promotions

at issue. Any consideration of race, therefore, was superfluous and, more importantly, not determinative of

who received the promotions. Defendants rely on this court's decision in Evans v. McClain of Georgia, Inc.,

in which we held that an employer could avoid Title VII liability "by proving ... that it would have made the

same [employment] decision even if it had not taken the [illegitimate criterion] into account." 131 F.3d 957,

962 (11th Cir.1997) (per curiam) (quoting Price Waterhouse v. Hopkins, 490 U.S. 228, 258, 109 S.Ct. 1775,

1795, 104 L.Ed.2d 268 (1989)). Although this court also has permitted this defense in section 1983 equal

protection claims, see Whiting v. Jackson State Univ., 616 F.2d 116, 122 (5th Cir.1980),14 it is immaterial to

a constitutional challenge to an affirmative action plan that imposes a racial classification. As the Supreme

Court has pronounced:



    13
      See R2, Tab 70 at 44, 47-48, 101 (Johnson Dep.).

    14
     Decisions by the former Fifth Circuit issued before October 1, 1981, are binding as precedent in the
Eleventh Circuit. See Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir.1981) (en banc).

                                                      13
         When the government erects a barrier that makes it more difficult for members of one group to obtain
         a benefit than it is for members of another group, a member of the former group seeking to challenge
         the barrier need not allege that he would have obtained the benefit but for the barrier.... The "injury
         in fact" in an equal protection case of this variety is the denial of equal treatment resulting from the
         imposition of the barrier, not the ultimate inability to obtain the benefit.

Northeastern Fla. Chapter of the Assoc. Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 666,

113 S.Ct. 2297, 2303, 124 L.Ed.2d 586 (1993). Accordingly, Plaintiffs' alleged constitutional injury was

inflicted by their exclusion from consideration for one-half of the promotions conferred annually; their

failure to be promoted is merely a manifestation of that injury. Defendants' assertion that they would not have

promoted Plaintiffs even in the absence of the Reeves Decree is therefore irrelevant.15

         We next consider Defendants' assertion that the supervision of a federal district judge over the

implementation of the Reeves Decree severed the causal connection between their conduct and the Plaintiffs'

alleged injuries. See Rheuark v. Shaw, 628 F.2d 297, 305 (5th Cir.1980) ("In order for a governmental unit

to be liable under [section] 1983, the policy or custom [of that unit] must ... be a proximate cause of the

constitutional violation."). The district judge who presided over the original Reeves suit has monitored the

implementation of the Reeves Decree since its inception. Without citing any supporting authority, Defendants

argue that the judge's oversight should relieve them of any liability for concomitant constitutional violations.

In Birmingham I, however, this court entertained Title VII and section 1983 attacks on a consent decree

overseen by a federal district judge and "rejecte[d] any notion that the memorialization of [a] voluntary

undertaking in the form of a consent decree somehow provides the employer with extra protection against

charges of illegal discrimination." 833 F.2d at 1501.


    15
        If, on remand, Plaintiffs are unable to demonstrate that they would have been promoted but for the
operation of the Reeves Decree, they will not be entitled to compensatory damages, i.e., back pay and
emotional distress. See Carey v. Piphus, 435 U.S. 247, 255, 98 S.Ct. 1042, 1047-48, 55 L.Ed.2d 252 (1978).
That, however, would not defeat Plaintiffs' claims; even in the absence of compensable damages, should
Plaintiffs prove that compliance with the Reeves Decree violates the equal protection clause and thus has
caused them a constitutional injury, they would be entitled to nominal damages, see Irish Lesbian & Gay Org.
v. Giuliani, 143 F.3d 638, 651 (2d Cir.1998) (authorizing nominal damages for the violation of one's equal
protection rights even when not requested in the complaint), as well as possibly the declaratory and injunctive
relief they seek.

                                                      14
          To summarize, the district court erred in evaluating Plaintiffs' claims pursuant to the McDonnell

Douglas burden-shifting analysis. The proper analytical framework is that outlined in Croson, and, on

remand, Plaintiffs' challenge to the constitutionality of the Reeves Decree must be assessed accordingly.

D.        The Timeliness of Plaintiffs' Equal Protection Claims

          The statute of limitations for a section 1983 claim arising out of events occurring in Georgia is two

years.16 See Williams v. City of Atlanta, 794 F.2d 624, 626 (11th Cir.1986). This suit was filed in August

1996, dating the statute of limitations back to August 1994. Only the promotion of Charles Gantt occurred

within this limitations period. The district court thus held that Plaintiffs were barred from seeking redress

for the equal protection violations allegedly caused by the promotions conferred by former Sheriff Wilkes

between 1986 and 1992 (the "Wilkes promotions"). Plaintiffs rejoin that because all the promotions at issue

were conferred according to the terms of the Reeves Decree, they constitute a single "continuing violation"

of the equal protection clause.17

          "In determining whether a discriminatory employment practice constitutes a continuing violation,

this Circuit distinguishes between the present consequence of a one time violation, which does not extend the

limitations period, and the continuation of that violation into the present, which does." Calloway v. Partners

Nat'l Health Plans, 986 F.2d 446, 448 (11th Cir.1993) (internal quotation omitted). In support of their

characterization of the alleged violations, Plaintiffs cite Beavers v. American Cast Iron Pipe Co., 975 F.2d


     16
    The district court stated that the statute of limitations was only one year. The parties agree that this was
harmless error, however, because the conduct which Defendants assert falls outside of the statute occurred
more than two years before this suit was filed.

     17
       We note that the Gantt promotion in 1996 occurred within the two-year statutory period; Plaintiffs'
claims, therefore, cannot be entirely barred. See Knight v. Columbus, Georgia, 19 F.3d 579, 582 (11th
Cir.1994). Moreover, "[a] discriminatory act which is not made the basis for a timely charge ... may
constitute relevant background evidence in a proceeding in which the status of a current practice is at issue."
United Air Lines, Inc. v. Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 1889, 52 L.Ed.2d 571 (1977). Practically
speaking, therefore, allowing Plaintiffs to challenge all of the allegedly discriminatory promotions would only
affect the amount of damages to which they would be entitled should they succeed in establishing liability.
Cf. Knight, 19 F.3d at 582 ("The term 'continuing violation' ... implies that there is but one incessant violation
and that the plaintiffs should be able to recover for the entire duration of the violation.").

                                                       15
792, 794 (11th Cir.1992), in which this court considered a Title VII claim challenging an employer's benefits

policy that denied insurance coverage to children who did not reside full-time with their employee-parent.

The court held that although the policy was instituted outside of the statute of limitations, the plaintiff's claim

was nonetheless timely because the employee's alleged injury—lack of insurance coverage for his

non-custodial children—was "the direct result of [an] on-going policy actively maintained by [the employer]."

Id. at 798. Plaintiffs argue that the Reeves Decree qualifies as such an "on-going policy" and that,

consequently, Beavers controls. Because we conclude that Beavers is distinguishable, we disagree. In

Beavers, the injury of which the plaintiff complained was his children's uninsured status—an injury caused

by his employer's continuous refusal to provide coverage. By contrast, any equal protection violation

precipitated by the Reeves Decree only manifests itself when an opportunity for a promotion arises and

applicants accordingly are evaluated. Although the Reeves Decree is continuously in effect, it does not

continuously injure Plaintiffs' equal protection rights.

         We find the circumstances of the instant case more akin to those in Knight v. Columbus, Georgia,

19 F.3d 579, 580 (11th Cir.1994), in which we addressed the legality under the Fair Labor Standards Act (the

"FLSA"), 29 U.S.C. §§ 201-19, of a city-employer's labor classification scheme. See 19 F.3d at 580. The

FLSA requires an employer to pay all non-exempt employees for overtime work. See 29 U.S.C. § 207 (1993).

The plaintiffs alleged that the city had misclassified them as "exempt executive or administrative employees"

and accordingly failed to pay appropriate overtime. See Knight, 19 F.3d at 580. The plaintiffs sought

damages for all overtime pay allegedly owed them, including for work performed outside the FLSA's statute

of limitations. This court held that the plaintiffs had a cause of action with respect to only those claims that

accrued within the statute of limitations. See id. at 582. The court observed that "[i]nstead of one on-going

violation, [Knight ] involve[d] a series of repeated violations of an identical nature. Because each violation

gives rise to a new cause of action, each failure to pay overtime begins a new statute of limitations period as

to that particular event." Id. This is analogous to the situation presented here: although the Reeves Decree,



                                                       16
like the classification scheme at issue in Knight, is a constant, it gives rise to discrete violations, each

triggering its own statute of limitations period. The period for each of the Wilkes promotions has expired.

On remand, therefore, Plaintiffs may rely only on the promotion of Charles Gantt as their means for

challenging the constitutionality of the Reeves Decree.

E.        Plaintiffs' Cross-Motion for Partial Summary Judgment

          Finally, we address Plaintiffs' appeal of the district court's denial of their cross-motion for partial

summary judgment on the issue of liability. Plaintiffs assert that they are entitled to partial summary

judgment because Defendants' undisputed compliance with the Reeves Decree conclusively evinces an

unconstitutional accounting of race in the conferral of promotions within the Department.

          The district court's grant of summary judgment to Defendants logically demanded the denial of

Plaintiffs' corresponding cross-motion. Although we now reverse the district court's grant of Defendants'

motion, we nonetheless affirm its denial of Plaintiffs' cross-motion.18 As we have explained, the operation

of the Reeves Decree does not necessarily offend the equal protection clause. Before a determination of

liability is appropriate, Defendants must be afforded an opportunity on remand to defend the constitutionality

of the Reeves Decree within the framework outlined above.

                                              III. CONCLUSION

          We REVERSE the district court's grant of Defendants' motion for summary judgment, AFFIRM its

denial of Plaintiffs' cross-motion for partial summary judgment, and REMAND the case for further

proceedings consistent with this opinion.




     18
     This court may affirm a decision of the district court on any adequate ground. See Parks v. City of
Warner Robins, 43 F.3d 609, 613 (11th Cir.1995).

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