                                                         [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS
                     FOR THE ELEVENTH CIRCUIT
                    _____________________________
                                                             FILED
                               No. 03-16180        U.S. COURT OF APPEALS
                    _____________________________ ELEVENTH CIRCUIT
                                                         APRIL 27, 2005
         D. C. Docket Nos. 01-00435 CV-1-SPM & 01-00442-CV-1-S KAHN
                                                      THOMAS K.
                                                            CLERK


LONNIE B. LEE, et al.,

                                               Plaintiffs-Appellants,

     versus

STATE OF FLORIDA,
DEPARTMENT OF CHILDREN
& FAMILY SERVICES,

                                               Defendants-Appellees.

              _________________________________________

                 Appeal from the United States District Court
                    for the Northern District of Florida
              _________________________________________

                            (April 27, 2005)


Before EDMONDSON, Chief Judge, MARCUS and PRYOR, Circuit Judges.
PER CURIAM:



      This case involves the State of Florida’s extension of special retirement

benefits to certain occupational classifications. African-American employees in

the forensic units at Florida State Hospitals who held positions that were not

granted the benefits filed a class action complaint alleging disparate impact

discrimination. The Plaintiff-Appellants argued that the Legislature’s inclusion of

certain predominately white employment classes in the special risk membership

violated Title VII. The district court granted the State of Florida Department of

Children and Family Services’s motion for summary judgment. We affirm.



                                  BACKGROUND



      Under the Florida Retirement System (“FRS”), certain occupations are

given special retirement benefits which provide, among other things, higher

retirement accrual rates and a lower retirement age. Fla. Stat. § 121.0515. In

2000, the Legislature expanded the sectors of employment eligible for special

benefits, creating a class of “special risk membership” (“SRM”) in the FRS statute,

in recognition that “certain categories of [employees] . . . are required as one of the

                                           2
essential functions of their positions to perform work that is physically demanding

. . ., or work that requires extraordinary agility and mental acuity.” Fla. Stat. §

121.0515(1). Persons who 1) are employed in one of twenty-four classes listed in

the statute1 and 2) spend at least 75% of their time performing duties involving

contact with patients or inmates, were afforded expanded coverage by the

legislation. Fla. Stat. § 121.0515(2)(f).

         A group of African-American employees (“Employees”) in the forensic

units at the Chattahoochee, Gainesville and Miami branches of the Florida State

Hospital who spend at least 75% of their time performing duties involving contact

with patients, but are not employed in any of the additional classifications, filed a

class action complaint against the State of Florida and the Department of Children

and Family Services (“Department”) alleging disparate impact discrimination.

They alleged that, at the time the statute went into effect, the forensic unit

employed 1321 people, 172 of whom were made eligible for the special risk

membership. The Employees noted that the award of SRM had a disparate impact

     1
       The following list represents the classes afforded special risk membership in the statute:
dietitian, public health nutrition consultant, psychological specialist, psychologist, senior
psychologist, regional mental health consultant, psychological services director, pharmacist, senior
pharmacist, dentist, senior dentist, registered nurse, senior registered nurse, registered nurse
specialist, clinical associate, advanced registered nurse practitioner, advanced registered nurse
practitioner specialist, registered nurse supervisor, senior registered nurse supervisor, registered
nursing consultant, quality management program supervisor, executive nursing director, speech and
hearing therapist, and pharmacy manager. Fla. Stat. § 121.0515(2)(f).

                                                 3
based on race: of the 172 eligible employees, 115 (67%) were white, whereas 783

(68.1%) of the 1149 non-eligible employees were black. The Employees alleged

that they are exposed to the same risks and physical demands as persons serving in

one of the statutorily delineated professions qualifying for SRM. The Employees

argued that the State violates Title VII by including certain predominately white

employment classes in the special risk membership, while excluding

predominately black classes that are allegedly exposed to the same levels of risk.

       The State argued that the positions in which plaintiffs were employed were

not comparable to the 24 delineated positions. The State explained that the

positions awarded SRM are composed of professional employees; they receive

higher compensation,2 which reflects “differences in education, training, licensure

or certification.” The State contended that the increase in benefits reflects these

differences.




   2
    One expert found that “the average bi-weekly salary of the employees in the class codes that
were moved to Special Risk in January 2001 [was] almost double the bi-weekly salary of the
employees in the class codes that were not placed in Special Risk.”

                                               4
                                         DISCUSSION



       Disparate impact theory “prohibits neutral employment practices which,

while non-discriminatory on their face, visit an adverse, disproportionate impact

on a statutorily-protected group.” EEOC v. Joe’s Stone Crab, 220 F.3d 1263, 1274

(11th Cir. 2000). To establish a prima facie case of disparate impact

discrimination, a plaintiff must demonstrate 1) a specific, facially-neutral

employment practice, 2) a significant statistical disparity in the racial composition

of employees benefitting from the practice and those qualified to benefit from the

practice; and 3) a causal nexus between the practice identified and the statistical

disparity. Id.

       Appellants have failed to establish a prima facie case of disparate impact

discrimination. We will assume, without deciding, that Appellants have identified

a “specific, facially-neutral employment practice.”3 Id. at 1268. But, because


  3
    We doubt that the Legislature’s enactment of a statute awarding SRM to 24 employment classes,
or even the Department of Children and Family Services’ implementation of the statute, can
constitute an “employment practice” for Title VII purposes. See American Federation of State,
County, and Municipal Employees, AFL-CIO v. State of Washington, 770 F.2d 1401, 1406 (9th Cir.
1985) (declining to analyze, under disparate impact theory, claim that State of Washington’s practice
of taking prevailing market rates into account in setting lower wages for job classifications
predominately composed of women violated Title VII because “the decision to base compensation
on the competitive market . . . involves the assessment of a number of complex factors not easily
ascertainable, an assessment too multifaceted to be appropriate for disparate impact analysis.”) But,
for purposes of analysis, we assume that this threshold requirement was met.

                                                 5
Appellants have failed to demonstrate a statistical disparity in the racial

composition of employees benefitting from the practice and those qualified to

benefit from the practice, we conclude that no prima facie case has been

demonstrated.

      The Supreme Court has cautioned that in analyzing evidence presented in

claims of disparate impact discrimination, “statistics based on an applicant pool

containing individuals lacking minimal qualifications for the job would be of little

probative value.” Watson v. Fort Worth Bank and Trust, 108 S.Ct. 2777, 2790

(1988). Here, SRM is only granted to 1) individuals employed in one of the

specified occupations if 2) the persons spend 75% of their time interacting with

forensic clients. Therefore, to establish the statistical disparity element, the

Employees would have had to prove that despite meeting both of these

requirements, a disproportionate percentage of blacks were denied SRM.

      Although the Employees asserted that they spend 75% of their time

interacting with forensic clients, they presented no evidence that they held, were

qualified for, or even desired one of the 24 delineated positions. Mere assertion

that they encountered identical levels of patient conduct is insufficient. Under the

statute, SRM does not attach to the conditions of the working environment alone,

but also requires the achievement of a level of employment classified by the

                                           6
statute. Notably, the employees have not alleged that they were prohibited -- in

any way -- from serving in one of the 24 delineated positions.4 They assert an

entitlement to the benefits of these positions on the basis that their jobs require

comparable levels of time and exposure to risk. By doing so, the employees

ignore that other factors -- beyond exposure to risk -- distinguish the positions:

they require different level of education, a different kind of work and represent

different jobs.5 Without asserting a legally cognizable statistical disparity, the

Employees have failed to establish a prima facie case.

         Notably, were we to assume, for purposes of argument, that Employees

established a prima facie case, the State has demonstrated that the discrepancy in

retirement benefits is “job related to the position in question and consistent with

business necessity.” 42 U.S.C. § 2000e-2(k)(1)(A)(i). The State has demonstrated

that the differential in benefits reflects the market rates for the affected classes.


     4
      The Employees allege no statistical disparity between the number of African-Americans
qualified to serve as dieticians, psychologists, nurses and the 21 other statutorily delineated positions
earning SRM and the number of African-Americans actually serving in the positions.
     5
       In those cases where we have accepted a district court’s expansion of the scope of the
“qualified” pool for purposes of statistical analysis, there was some factor prohibiting a class of
employees’ participation in the disputed sector of the labor market. See, e.g., Joe’s Stone Crab, 220
F.3d at 1277 (noting district court’s consideration of total women in Miami area earning a certain
salary as “qualified pool” instead of merely those women applying for disputed position because
court found that employer’s reputation of refusing to hire women lead to self-selection out of pool).
Again, here there is no alleged prohibiting factor: the employees do not assert that they were
prevented from holding any of the 24 delineated positions.

                                                   7
See MacPherson v. Univ. of Montevallo, 922 F.2d 766, 772 (11th Cir. 1991)

(accepting employer’s need to compensate certain employees at higher market

rates as legitimate business reason for employment practice challenged under a

disparate impact theory). We are reminded of the Supreme Court’s caution that

“Congress did not intend by Title VII, however, to guarantee a job to every person

regardless of qualifications. . . . What is required . . . is the removal of artificial,

arbitrary, and unnecessary barriers. . . .” Griggs v. Duke Power Co., 91 S. Ct. 849,

853 (1971). Title VII does not guaranty the provision to these Employees of all of

the benefits that the Florida Retirement System has to offer. Instead, Title VII

protects them from the discriminatory withholding of such benefits. Here, FRS’s

limitation of certain benefits to particular classifications of employees reflects a

reasonable reaction to market forces, rather than some “artificial, arbitrary [or]

unnecessary” barrier.



       AFFIRMED.




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