                                                                  [PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                FILED
                     FOR THE ELEVENTH CIRCUIT           U.S. COURT OF APPEALS
                       _______________________            ELEVENTH CIRCUIT
                                                              JULY 07 2000
                                                           THOMAS K. KAHN
                             No. 99-12417                       CLERK
                       _______________________

                 D. C. Docket No. 96-00315-CV-5-2-WDO


WILLIAM T. THIGPEN, JR., and JAMES W. ALLEN,

                                               Plaintiffs-Appellants,

                                  versus


BIBB COUNTY, GEORGIA, SHERIFF’S DEPARTMENT; and ROBBIE
JOHNSON, Sheriff, Bibb County, Georgia, in his official capacity,

                                               Defendants-Appellees.

                      _________________________

                Appeal from the United States District Court
                    for the Middle District of Georgia
                     _________________________
                              (July 7, 2000)



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 protection claims; and

(4) whether the several denied promotions underpinning the 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.

                                          2
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.


                                           3
                    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

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.




      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.

                                           4
      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



      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.

                                           5
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.

      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


                                            6
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



                                           7
court relied on this court’s decision in Wu v. Thomas, 847 F.2d 1480, 1485 (11th

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


                                           8
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 (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 (1985); Plyler v. Doe, 457 U.S. 202, 216, 102 S.

Ct. 2382, 2394 (1982). The gravamen of Plaintiffs’ complaints is that although all

officers holding equal rank within the Department are 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.




                                           9
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



                                          10
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 1991did 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 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


                                         11
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 (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


                                          12
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 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,




                                          13
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 therefore




      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.

                                          14
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 (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.


      6
       Incidentally, this court cited the Annis holding with approval in Johnson. See
148 F.3d at1231.

                                          15
      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 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

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

                                          16
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 (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


                                          17
             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.

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 (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



      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 (confirming that Croson finally
resolved that “the single standard of review for racial classifications should be strict
scrutiny”).

                                           18
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.

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,


                                           19
             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.




      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.

                                         20
      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 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


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

                                          21
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 (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:




      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).

                                          22
             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.

Northeast Fla. Chapter of the Assoc. Gen. Contractors of Am. v. City of

Jacksonville, 508 U.S. 656, 666, 113 S. Ct. 2297, 2303 (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




      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 (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.2d 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.

                                           23
      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.

      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’




                                          24
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


      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

                                          25
      “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 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



relevant background evidence in a proceeding in which the status of a current practice
is at issue.” United Airlines, Inc. v. Evans, 431 U.S. 553, 558, 97 S. Ct. 1885, 1889
(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.”).

                                          26
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


                                         27
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, 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.




                                           28
      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.



                                II. 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).

                                         29
