Full opinion text
MEMORANDUM OPINION ROYCE C. LAMBERTH, Chief Judge. Pro se plaintiff William Shea, a white career Foreign Service officer, brought this Title VII reverse discrimination action against the Department of State (“State”). Compl., Mar. 3, 2002, ECF No. 1. When State hired Shea in 1992, State operated an affirmative action program that made qualified minorities eligible for direct placement into mid-level classes of the Foreign Service. Shea claims he would have been eligible for this mid-level placement program but for his race and still feels the effect of his entry at a lower pay grade — each paycheck is less than it would have been if he entered as a mid-level officer. This case suffered a series of fits and starts, largely attributable to Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 127 S.Ct. 2162, 167 L.Ed.2d 982 (2007) and the Lilly Ledbetter Fair Pay Act, Pub. L. No. 111-2 (Jan. 29, 2009). Since Shea based his claim on the continuing effects of a discriminatory decision made in 1992, his claim was time-barred until passage of the Lilly Ledbetter Act. The substantive merits are finally ripe for consideration as the Court considers each party’s motion for summary judgment. Under Title VII, Shea has the ultimate burden of proving that State’s affirmative action plan was unlawful. Shea cannot support an essential element of his claim with admissible evidence. He tries to prove, via his own amateur statistics, that minorities were not significantly under-represented in the Foreign Service mid-levels. Shea needs, and lacks, qualified testimony about the statistical significance of his findings. Therefore, State is entitled to summary judgment on Shea’s remaining claims and this case will be dismissed with prejudice. I. BACKGROUND A. Factual Background In 1985, Congress enacted the Foreign Relations Authorization Act, Fiscal Years 1986 and 1987 (“1986-87.FRAA”). Pub. L. 99-93. The 1986-87 FRAA directed State to “develop ... a plan designed to increase significantly the number of members of minority groups and women in the Foreign Service.” Pub. L. 99-93, Title I, § 152(a). Congress further directed that “each plan developed pursuant this section shall ... place particular emphasis in achieving significant increases in the numbers of minority group members and women who are in the mid-levels of the Foreign Service.” Pub. L. 99-93, Title I, § 152(b). Thereafter, State instituted the Mid-Level Affirmative Action Plan (“MLAAP”) under its more general Mid-Level Foreign Service Career Candidate Program (“MLCCP”). See Def.’s Statement of Facts Not in Genuine Dispute ¶ 3 (“Defi’s SMF”), Aug. 17, 2012, ECF No. 120-1; PL’s Response to Def.’s Statement of Material Facts Not in Dispute 7-8. (“PL’s SMF Resp.”), Aug. 30, 2012, ECF No. 123-4 (only objecting to defendant’s statement that MLAAP was “in response” to FRAA). Although white women were not qualified to participate in the MLAAP, State created the “Federal Women Programs” and the Federal Women’s Program manager to develop and monitor programs aimed at greater female representation. Def.’s SMF ¶ 4; PL’s SMF Resp. (admitting Def.’s SMF ¶4). In 1987, Congress enacted the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989 (“1988-89 FRAA”). Pub. L. 100-204. In the 1988-89 FRAA Congress found: [T]hat the Department of State and other Foreign Service agencies have not been successful in their efforts — (1) to recruit and retain members of minority groups in order to increase significantly the numbers of minority groups in the Foreign Service; and (2) to provide adequate career advancement for women and members of minority groups in the senior levels of the Foreign Service. Pub. L. 100-204, Title I, § 183(a). Congress further required State to “substantially increase their efforts to implement effectively the plans required by” the 1986-87 FRAA and “ensure that those plans effectively address the need to promote increased numbers of qualified women and members of minority groups into the senior levels of the Foreign Service.” Pub. L. 100-204, Title I, § 183(b). State revised the MLAAP in November 1990 and instituted its FY 1990-92 Mid-Level Affirmative Action Plan, which was in effect when Shea applied to, and was hired by, State. Def.’s SMF ¶9; Pl.’s SMF Resp. 10 (admitting Def.’s SMF ¶ 9). Mid-level hiring allowed State to hire a Foreign Service candidate directly into a higher grade, rather than into an entry-level grade. Under the general mid-level hiring program, a candidate with the requisite experience could enter as a mid-level hire if State received a “certification of need” that State required an outside hire at that grade and with those qualifications. The Mid-Level Affirmative Action Plan dispensed with the “certification of need” requirement in favor of self-identification as American Indian, Alaskan Native, Asian and Pacific Islander, Hispanic, or African American. State required all candidates for mid-level hiring — both minority and non-minority — to (a) have substantial professional experience, (b) receive a passing grade on an oral examination, and (c) pass a background check. In February 1993, State ended the mid-level affirmative action program, but kept in place its more general mid-level hiring program. Def.’s SMF ¶¶ 10, 12-17; Pl.’s SMF Resp. 10-11 (admitting in all relevant respects Def.’s SMF ¶¶ 10,12-17). In September 1990, William Shea — a white male of Irish descent — submitted an application to the Foreign Service. Shea never applied for mid-level placement through the general Mid-Level Foreign Service Career Candidate Program. In May 1993, State hired Shea as an entry-level career Foreign Service Officer; he came in at grade FS-05, step 5. Shea knew at the time he was hired that qualified minorities could start at higher grades, and that two people in his introductory class were starting at mid-level grades due to their participation in a minority mid-level hiring program. Shea did not file an administrative grievance until July 11, 2001 — nine years after he entered the Foreign Service. Def.’s SMF ¶¶20-23, 26, 37; Pl.’s SMF Resp. 13-16 (admitting Defi’s SMF ¶¶ 20-23, 26, 37). In his Complaint, Shea alleged that he would have passed the screening process of the MLAAP, but was excluded from consideration solely because of his race. Specifically, Shea alleged harm because his hiring at entry-level rather than mid-level grade has subjected him to lower pay and fewer promotion opportunities than members of minority groups admitted under the MLAAP, in violation of his rights under Title VII. See Compl. ¶¶ 1-2. B. Procedural Background On July 11, 2001, Shea filed a grievance with the State Department asserting, among other things, racial discrimination in violation of Title VII because of the disparate pay he was receiving. See Def.’s SMF ¶ 37; Pl.’s SMF Resp. 11 (admitting Def.’s SMF ¶ 37); Compl. ¶¶ 1-2. On January 30, 2002, Shea received the decision of the Foreign Service Grievance Board dismissing Shea’s complaint for lack of jurisdiction. Compl. ¶2. Having exhausted his administrative remedies, Shea filed suit in this Court on March 26, 2002. His Complaint raised a Title VII challenge to the MLAAP, claiming he was injured by continuing to receive a lower paycheck than he would had he been eligible for mid-level placement though the MLAAP. The case was initially assigned to Judge James Robertson, who granted State’s Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) because Shea’s complaint and administrative grievance were untimely. Mem. & Order, Sept. 30, 2003, ECF Nos. 15 & 16. He found Shea’s “complaint amounted to no more than allegations of discrimination in May 1992, when he started at a lower pay grade.” Mem. 4, ECF No. 16. Judge Robertson held that each allegedly-diminished paycheck did not amount to a new, discrete discriminatory act that reset the clock for filing an administrative complaint. Id. at 3-4. Shea tried to rely on Anderson v. Zubieta, 180 F.3d 329 (D.C.Cir.1999) and Bazemore v. Friday 478 U.S. 385, 106 S.Ct. 3000, 92 L.Ed.2d 315 (1986) “for the proposition that, every time he received a paycheck for less than it would have been had he not been discriminated against, he was ‘discriminated against anew.” Id. at 4. However, Judge Robertson found that these cases were “inapposite,” because there was not a “ ‘discriminatory system in place,” akin to those in Bazemore and Anderson. Id. (quoting Niedermeier v. Office of Baucus, 153 F.Supp.2d 23, 29 (D.D.C.2001)). Furthermore, Judge Robertson dismissed Shea’s constitutional claims and his request for declaratory and injunctive relief. Id. at 4-5. Shea then appealed the district court’s ruling. See Notice of Appeal, Nov. 11, 2003, ECF No. 17. “While the district court dismissed all of his allegations on the pleadings — finding none stated a viable claim — Shea [sought] review of only one: ie., that his pay and benefits are discriminatorily low because the State Department set his pay grade pursuant to a diversity program that disadvantaged him on account of his race (white) and ethnicity (Irish), in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and the Equal Protection component of the Fifth Amendment, U.S. CONST, amend V.” Shea v. Rice, 409 F.3d 448, 449 (D.C.Cir.2005). The court of appeals found that “Bazemore holds that an employee may recover for discriminatorily low pay received within the limitations period because each paycheck constitutes a discrete discriminatory act,” id. at 455, reversed the district court’s dismissal, and remanded for further proceedings, id. at 456. While the case was on remand, the Supreme Court decided Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 127 S.Ct. 2162, 167 L.Ed.2d 982 (2007) and brought the D.C. Circuit’s analysis into doubt. Judge Robertson denied State’s subsequent Rule 12(c) motion for judgment on the pleadings, but invited the parties to file for summary judgment after a fuller development of the factual record. See Order, Aug. 30, 2007, ECF No. 43. After the parties filed cross-motions for summary judgment, Judge Robertson found that Ledbetter effectively overturned the D.C. Circuit’s prior analysis. Shea v. Rice, 587 F.Supp.2d 166, 168-69 (D.D.C.2008). He stated that Shea’s argument “cannot be successfully distinguished from the ‘paycheck accrual rule’ that Ledbetter argued for and that the Supreme Court rejected.” Id. at 169. Bazemore could not save Shea because State did not engage in any “fresh discrimination” or continue a discriminatory system during the limitations period; it was undisputed that State ended its mid-level affirmative action program in 1993. Id. at 169-70. Therefore, Judge Robertson granted State summary judgment. Shea again appealed the dismissal of his case. See Notice of Appeal, Nov. 23, 2008, ECF No. 65. While Shea’s appeal was pending, Congress passed the Lilly Led-better Fair Pay Act of 2009, Pub. L. No. 111-2, 123 Stat. 5 (2009), which abrogated the Supreme Court’s holding in Ledbetter. The D.C. Circuit remanded for reconsideration in light of this intervening change. Shea v. Clinton, No. 08-5491, 2009 WL 1153448, at *1 (D.C.Cir. Apr. 2, 2009). On remand, Judge Robertson reconsidered the parties’ summary judgment motions, examining arguments he did not reach earlier because he had disposed of the case on other grounds. Mem. Order, Aug. 11, 2009, ECF No. 69. He rejected State’s legislative immunity defense and found State did not have enough evidence to support a laches defense. Id. at 3-5. He then considered Shea’s Title VII challenge to the MLAAP. He applied the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and considered Shea’s claims under the affirmative action jurisprudence of United Steelworkers v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979), Johnson v. Transportation Agency, Santa Clara County, Cal., 480 U.S. 616, 107 S.Ct. 1442, 94 L.Ed.2d 615 (1987), and Hammon v. Barry, 826 F.2d 73 (D.C.Cir.1987). Id. at 6-7. Judge Robertson stated that: The government will be liable to Shea on account of the affirmative action program that was in operation at State more than fifteen years ago only if Shea can show (a) that the program was unlawful — meaning generally that it was not designed to cure a manifest imbalance in the workforce; (b) that, except for his race, Shea was qualified for the program; and (c) that Shea was damaged during the period of limitations by the continuing effects of the MLAAP. Id. at 5-6. At that time, the factual record regarding the legality of State’s affirmative action plan had not been well developed. Id. at 8. Therefore, Judge Robertson denied both parties’ motions for summary judgment, id. at 11, and set a schedule for additional fact and expert discovery, see Scheduling Order, Sept. 23, 2009, ECF No. 73. Several miscellaneous motions followed. First, State objected to the Court’s treatment of the MLAAP as a voluntary affirmative action plan and requested reconsideration. See Def.’s First Mot. Reconsideration, Aug. 19, 2009, ECF No. 70. The Court denied this motion the next day. Order, Aug. 20, 2009, ECF No 71. On January 1, 2010, Shea filed his still-pending Motion for Summary Judgment, ECF No. 74. Thereafter, the Court allowed State to amend its discovery responses so State will not have been deemed to admit to several of Shea’s factual claims. See Order Granting Def.’s Mot. for Leave to File, Feb. 2, 2010, ECF No. 78. Judge Robertson retired in 2010, and the case was randomly reassigned to Judge Henry H. Kennedy on June 4, 2010. Reassignment of Civil Case, June 4, 2010, ECF No. 80. Less than a month later, the case was randomly reassigned to Judge Emmet G. Sullivan. Reassignment of Civil Case, June 30, 2010, ECF No. 83. Judge Sullivan extended all discovery until September 30, 2010. Minute Order, July 6, 2010; Revised Scheduling Order, July 6, 2010, ECF No. 84. Shea then filed a motion for reconsideration, challenging various aspects of Judge Robertson’s prior rulings. Pl.’s Mot. Reconsideration, July 28, 2010, ECF No. 85. Shea also moved to hold discovery deadlines in abeyance until resolution of this motion. ECF No. 86. In response, Judge Sullivan stayed the entire matter until an April 6, 2011 status conference. Minute Order, Mar. 9, 2011. At that conference, he orally extended the stay indefinitely. The parties continued to file motions during the stay. State filed a second motion for reconsideration, again arguing that Congress mandated the MLAAP and that it was error to subject it to the standards applicable to voluntary affirmative action plans. Def.’s Second Mot. Reconsideration, Apr. 5, 2011, ECF No. 93. Shea then filed a motion to apply judicial estoppel to bar State from submitting an opposition to Shea’s still-pending motion for summary judgment. Pl.’s Mot. to Apply Judicial Estoppel, Nov. 7, 2011, ECF No. 106. On October 11, 2011, the case was reassigned by consent to its fourth (and, perhaps, final) judge, Chief Judge Royce C. Lamberth. See Reassignment of Civil Case, ECF No. 105. Chief Judge Lam-berth denied both parties’ motions for reconsideration and Shea’s motion for application of judicial estoppel, and lifted the stay on July 30, 2012. See Shea v. Clinton, 850 F.Supp.2d 153 (D.D.C.2012); Shea v. Clinton, 880 F.Supp.2d 113 (D.D.C.2012). The Court set a schedule for briefing on Shea’s still-pending summary judgment motion and any cross-motion offered by State. See Mem. & Order 9, July 30, 2012, ECF No. 118. On August 17, 2012, State filed a second Motion for Summary Judgment. ECF No. 120. This led to several more rounds of procedural motions and requests for extensions. See ECF Nos. 122, 125, 129, 132. After the Court settled these issues (see ECF Nos. 137-39; Shea v. Clinton, 288 F.R.D. 1 (D.D.C.2012)), the parties’ motions for summary judgment were finally ripe for consideration on December 22, 2012. With discovery closed and a full briefing on the merits presented, the Court can finally consider the substantive merits of Shea’s claim. II. LEGAL STANDARDS A. Summary Judgment “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The mere existence of any factual dispute will not defeat summary judgment; “the requirement is that there be no genuine issue of material fact.” Anderson, 477 U.S. at 247-48, 106 S.Ct. 2505 (emphasis in original). A fact is material if, under the applicable law, it could affect the outcome of the case. Id. A dispute is genuine if the “evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. Because “[credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge,” the “evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255, 106 S.Ct. 2505. A nonmoving party, however, must establish more than “the existence of a scintilla of evidence” in support of its position. Id. at 252, 106 S.Ct. 2505. The inferences drawn from the evidence “must be reasonably probable and based on more than mere speculation.” Rogers Corp. v. E.P.A., 275 F.3d 1096, 1103 (D.C.Cir.2002) (citations omitted). The nonmoving party may not rely solely on allegations or conclusory statements. See Greene v. Dalton, 164 F.3d 671, 675 (D.C.Cir.1999). The nonmoving party must present specific facts that would enable a reasonable jury to find in its favor. Id. If the evidence presented is “merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249-50,106 S.Ct. 2505. In Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), the Supreme Court held that, after “adequate time for discovery and upon motion,” a court must enter summary judgment “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Elaborating: In such a situation, there can be “no genuine issue as to any material fact,” since a complete failure of proof concerning an essential element of the non-moving party’s case necessarily renders all other facts immaterial. The moving party is “entitled to a judgment as a matter of law” because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof. 477 U.S. at 322-23, 106 S.Ct. 2548 (quoting Fed.R.Civ.P. 56(c)). The Supreme Court meant “to disapprove a line of cases allowing a party opposing summary judgment to resist a properly made motion by reference only to its pleadings,” id. at 325, 106 S.Ct. 2548: In cases ... where the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the “pleadings, depositions, answers to interrogatories, and admissions on file.” Such a motion, whether or not accompanied by affidavits, will be “made and supported as provided in this rule,” and Rule 56(e) therefore requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the “depositions, answers to interrogatories, and admissions on file,” designate “specific facts showing that there is a genuine issue for trial.” Id. at 324, 106 S.Ct. 2548 (quoting Fed. R.Civ.P. 56). Rule 56 allows a party seeking or opposing summary judgment to “object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.” Fed.R.Civ. P. 56(c)(2). While at summary judgment the nonmovant “is not required to produce evidence in a form that would be admissible at trial,” the evidence must be “capable of being converted into admissible evidence.” Catrett v. Johns-Manville Sales Corp., 826 F.2d 33, 38 (D.C.Cir.1987). “Because the objective of summary judgment is to prevent unnecessary trials, and because ‘[v]erdicts cannot rest on inadmissible evidence,’ it follows that the evidence considered at summary judgment must be capable ‘of being converted into admissible evidence.’ ” Akers v. Liberty Mut. Group, 744 F.Supp.2d 92, 96 (D.D.C.2010) (quoting Greer v. Paulson, 505 F.3d 1306, 1315 (D.C.Cir.2007)). At summary judgment the Court cannot rely on “mere allegations or denials.” Anderson, 477 U.S. at 256, 106 S.Ct. 2505; see also 10A Wright, Miller & Kane, Federal Practice & Procedure § 2727 (3d ed. 2012) (“A judge may not resolve a summary-judgment motion by ‘assumptions’ about matters that have not been properly presented in the manner prescribed by the rule[.]”). The filing of a cross-motion for summary judgment does not “concede the factual allegations of the opposing motion.” CEI Washington Bureau, Inc. v. Dep’t of Justice, 469 F.3d 126, 129 (D.C.Cir.2006). Cross-motions for summary judgment are treated separately. See McKenzie v. Sawyer, 684 F.2d 62, 68 n. 3 (D.C.Cir.1982) (“The rule governing cross-motions for summary judgment ... is that neither party waives the right to a full trial on the merits by filing its own motion; each side concedes that no material facts are at issue only for the purposes of its own motion.”). The court may — despite the parties’ stipulations that there are no disputed facts— find material facts are in dispute, deny both motions, and proceed to trial. Sherwood v. Washington Post, 871 F.2d 1144, 1147 n. 4 (D.C.Cir.1989). B. Affirmative Action Plans Under Title YII Title VII of the Civil Rights Act of 1964, as amended, prohibits employment discrimination on the basis of race, color, religion, sex, or national origin. 42 U.S.C. §§ 2000e-2, 2000e-3. Title VII protects all Americans, including white men, from race-based employment discrimination. McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 280, 96 S.Ct. 2574, 49 L.Ed.2d 493 (1976). Nevertheless, the Supreme Court has repeatedly interpreted Title VII to allow “race-conscious efforts to abolish traditional patterns of racial segregation and hierarchy.” Weber, 443 U.S. at 204, 99 S.Ct. 2721; see also Johnson, 480 U.S. at 626, 107 S.Ct. 1442. The Supreme Court has approved of affirmative action plans “designed to ‘eliminate manifest imbalances in traditionally segregated job categories.’” Johnson, 480 U.S. at 628, 107 S.Ct. 1442 (quoting Weber, 443 U.S. at 197, 99 S.Ct. 2721). “The standard for determining whether affirmative relief is justified under Title VII is less stringent than under the Constitution.” Stewart v. Rubin, 948 F.Supp. 1077, 1093 (D.D.C.1996) (Lamberth, J.) aff'd, 124 F.3d 1309 (D.C.Cir.1997). See also Johnson, 480 U.S. at 627 n. 6,107 S.Ct. 1442 (“The fact that a public employer must also satisfy the Constitution does not negate the fact that the statutory prohibition with which that employer must contend was not intended to extend as far as that of the Constitution.”); cf. Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 273, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986) (applying strict scrutiny to constitutional challenge of affirmative action plan). Courts analyze Title VII challenges to affirmative action plans under the analytical framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). As the Supreme Court stated: Once a plaintiff establishes a prima facie case that race or sex has been taken into account in an employer’s employment decision, the burden shifts to the employer to articulate a nondiscriminatory rationale for its decision. The existence of an affirmative action plan provides such a rationale. If such a plan is articulated as the basis for the employer’s decision, the burden shifts to the plaintiff to prove that the employer’s justification is pretextual and the plan is invalid. Johnson, 480 U.S. at 627, 107 S.Ct. 1442. The plaintiff bears the ultimate burden of establishing the invalidity of the affirmative action plan. Id. Reliance on an affirmative action plan is not an “affirmative defense requiring the employer to carry the burden of proving the validity of the plan. The burden of proving its invalidity remains on the plaintiff.” Id. In analyzing affirmative action plans under Title VII, courts consider: (1) whether the plan was justified by a “manifest imbalance” reflecting an underrepresentation of minorities or women in “traditionally segregated job categories”; and (2) whether the plan was properly tailored to cure the disparity without unnecessarily trammeling the interests of non-minorities. Weber, 448 U.S. at 208, 99 S.Ct. 2721. Statistically significant disparities between the percentage of minorities employed and the percentage of qualified minorities in the labor market can be strong evidence of a manifest imbalance. See Johnson, 480 U.S. at 633, 107 S.Ct. 1442; Palmer v. Shultz, 815 F.2d 84, 91 (D.C.Cir.1987). Writing for the Court in Johnson, Justice Brennan stated that a “manifest imbalance need not be such that it would support a prima facie case against the employer.” 480 U.S. at 632, 107 S.Ct. 1442; see also id. at 633 n. 11, 107 S.Ct. 1442 (“However, as long as there is a manifest imbalance, an employer may adopt a plan even where the disparity is not so striking, without being required to introduce the nonstatistical evidence of past discrimination that would be demanded by the ‘prima facie ’ standard.”); Stewart, 948 F.Supp. at 1094 (“Nor is a finding or admission of prior discrimination required in a Title VII case. Indeed, to adopt affirmative measures to resolve Title VII employment discrimination claims, the employer need not admit to any prior discrimination, nor point ‘to evidence of an ‘arguable violation’ on its part.’ ” (quoting Johnson, 480 U.S. at 630, 107 S.Ct. 1442)). Shortly after Johnson, Judge Kenneth Starr of the D.C. Circuit read Johnson as not eviscerating the existing “predicate of discrimination” requirement — an employer may only use affirmative action as a remedy for prior discrimination. Hammon, 826 F.2d at 74-75. Statistics showing an “egregious underrepresentation]” of minorities may give rise to an “inference of discrimination” by the employer. Id. at 75. Finding that the Johnson majority agreed with Justice O’Connor’s statement that affirmative action is permissible under Weber “only as a remedial device to eliminate actual or apparent discrimination or the lingering effects of this discrimination,” Johnson, 480 U.S. at 649, 107 S.Ct. 1442 (O’Connor, J., concurring), Judge Starr held that “although an employer need not admit or prove that it had acted discriminatorily, evidence of the effects of its past or current discrimination is a prerequisite to lawful race-conscious employment decisions,” 826 F.2d at 75 n. 1. In determining whether the affirmative action plan unnecessarily trammels the interests of non-minorities, courts focus on the nature of the plan — including whether the plan is temporary, whether it was intended to attain or maintain a racial balance, whether it imposes quotas, whether it requires the discharge of white employees, and whether it is over-inclusive. See, e.g., Weber, 443 U.S. at 208, 99 S.Ct. 2721; Johnson, 480 U.S. at 636-40, 107 S.Ct. 1442; United States v. Paradise, 480 U.S. 149, 182, 107 S.Ct. 1053, 94 L.Ed.2d 203 (1987); Stewart, 948 F.Supp. at 1095-96. III. DISCUSSION This ease is eleven years old and on its fourth judge. The district court twice entered final judgment. Order, Sept. 30, 2003, ECF No. 15; Order, Nov. 21, 2008, ECF No. 64. The court of appeals twice reversed the district court and remanded for further proceedings. Judgment, Sept. 14, 2005, ECF No. 19; Mandate, Apr. 17, 2009, ECF No. 67. Given this protracted history, the Court should clarify a few preliminary matters. The Court will use the McDonnell Douglas/Johnson framework — described supra Part II.B. — to analyze plaintiffs Title VII claims. This case only concerns Shea’s Title VII claims. Shea voluntarily withdrew a number of his claims in response to State’s first Motion to Dismiss. See Pl.’s Opp’n to Def.’s Mot. to Dismiss 1-2, Feb. 10, 2003, ECF No. 12. Shea abandoned other constitutional claims when he elected not to appeal their dismissal. See Shea, 409 F.3d at 450-51 (noting that Shea only appealed the district court’s dismissal of his pay grade discrimination claim). To the extent Shea has any remaining constitutional claims, they would be time-barred under the three-year statute of limitations applicable to equal protection claims. Therefore, the Title VII standard articulated by the Supreme Court in Johnson v. Transportation Agency, 480 U.S. 616, 107 S.Ct. 1442, 94 L.Ed.2d 615 (1987) applies— rather than the constitutional standard articulated by the Supreme Court in Wygant v. Jackson Board of Education, 476 U.S. 267, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986). Over Justice Scalia’s vigorous dissent, 480 U.S. at 657-77, 107 S.Ct. 1442, Justice Brennan’s majority opinion in Johnson made clear that the statutory test differs from the constitutional test, 480 U.S. at 627 n. 6,107 S.Ct. 1442. Johnson and its progeny describe the Title VII standard under which courts analyze voluntary affirmative action programs. State repeatedly argued that the MLAAP is not a “voluntary” plan — that the Foreign Relations Authorization Act, 22 U.S.C. § 3922a, mandated the creation of an affirmative action plan. See, e.g., Def.’s Mem. ISO its First Mot. Reconsideration 4-6; Def.’s Mem. ISO its Second Mot. Reconsideration. This Court has rejected these arguments, finding that while the FRAA “clearly requires State to implement a plan to address mid-level positions, it is silent on to the means by which State is to accomplish this goal.” Shea v. Clinton, 850 F.Supp.2d 153, 159 (D.D.C.2012). The Court concluded, while also rejecting State’s argument for legislative immunity, that “[t]he FRAA clearly does not mandate an exception to Title VII and does not mandate creation of the MLAAP specifically.” Id. at 162. As this Court has found previously, see id. at 158-62, it reiterates that MLAAP is a voluntary affirmative action plan subject to Johnson and its progeny. This case is not a “mixed motive” or “direct evidence” case. Shea’s reliance on Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989) is misplaced. See Pl.’s Opp’n to Def.’s Mot. Summ. J. & Reply ISO Mot. Summ. J. 39 (“Pi’s Opp’n & Reply”), Aug. 30, 2012, ECF No. 123. In Price Waterhouse, the Supreme Court set the standard for “mixed motive” Title VII cases: Once a plaintiff shows an employer acted with an impermissible motive, the burden of proof shifts to the employer to prove that it would have made the same decision even in the absence of the impermissible motive. 490 U.S. at 242, 109 S.Ct. 1775. In 1991, Congress amended Title VII; section 107 of the 1991 Act codified Price Waterhouse “to the extent that it shifts the burden of persuasion to the defendant to prove a nondiscriminatory motive was at work.” 2 Barbara T. Lindemann, Paul Grossman & C. Geoffrey Weirich, Employment Discrimination Law 2544 (4th ed. 2007). However, this is not a “mixed motive” case, and courts typically do not treat “reverse discrimination” cases as falling under the burden-shifting framework of Pnce Water-house and § 107. See id. at 2544-46. Courts in this Circuit have long held that the mere existence of an affirmative action plan does not provide “direct evidence” of discrimination. See, e.g., Parker v. Baltimore & Ohio R.R., 652 F.2d 1012, 1017 n. 9 (D.C.Cir.1981). “In the absence of direct evidence of discrimination,” — of which there is none in this case — “disparate-treatment claims under Title VII are analyzed under the burden-shifting framework set forth in McDonnell Douglas[.]” Teneyck v. Omni Shoreham Hotel, 365 F.3d 1139, 1149 (D.C.Cir.2004). Shea may only challenge State’s revised FY 1990-92 Multi-Year Affirmative Action Plan. When the Court refers to the “MLAAP” generally, it refers to the 1990-92 plan in effect at the time of Shea’s hiring. At times, Shea presents arguments based on deficiencies in State’s earlier 1987 Multi-Year Affirmative Action Plan. See generally Pl.’s Opp’n & Reply. This plan was not in effect when Shea applied to State. Shea cannot directly challenge the 1987 MLAAP, and the details of its alleged shortcomings are of limited probative value. On the other hand, the findings of underrepresentation and prior discrimination underpinning the 1987 MLAAP may be relevant to justifying the later plan. The 1990-92 plan was a continuation and refinement of an existing plan. State did not need to justify the revised plan out of whole cloth; it may rely in part on its earlier findings of discrimination and underrepresentation if it found that significant underrepresentation persisted, and race conscious policies continued to be necessary. When considering the numbers, the Court focuses on the mid- and senior-levels of career Foreign Service generalist officers. At the time, the Department of State had two personnel systems — one covering the “Foreign Service,” and one covering the “Civil Service system.” See Ex. 2 to Defi’s Cross-Mot. 26 (Shea— 00090). The “Civil Service system” covered the gamut of employees responsible for the general administration of the State Department, including clerical, technical, and legal staff. Within the Foreign Service, there are Foreign Service Officers (or “Generalists”) and Foreign Service Specialists. Foreign Service Officers have “general responsibility for carrying out and conducting the United States’ foreign relations throughout the world.” Id. Within this corps, State assigned its officers to one of four “cones” — Administrative, Consular, Economic, and Political. Foreign Service Specialists, on the other hand, are “professional specialists in communications, security, medicine, office support skills, and other fields.” Id. State is responsible for meeting EEO goals for both the Civil and Foreign Service, and for both Foreign Service Generalists and Specialists. Many of the reports submitted by State also discuss underrepresentation in the Civil Service and Foreign Service Specialist ranks. See, e.g., Ex. 2 to Def.’s Cross-Mot. (State FY 1990-92 MultiYear Affirmative Action Plan); Ex. 8 to Def.’s Cross-Mot. (GAO report on under-representation in Foreign Service). Shea applied for, and received, a position as an entry-level Foreign Service Officer. See Ex. 12 to Def.’s Cross-Mot. (Agreement to Join the Foreign Service, April 22, 1992); Ex. 13 to Def.’s Cross-Mot. (employment form SF 50-B). Therefore, the rates of underrepresentation of career Foreign Service generalist officers are relevant to this case. Under-representation in the mid- and senior-levels is relevant because Congress specifically expressed dissatisfaction of the minority representation at both levels, and directed State to take action to correct for these specific imbalances. See 1986-87 FRAA, Pub. L. 100-204, Title I, § 183(b); 1988-89 FRAA, Pub. L. 100-204, Title I, § 183(b). With the correct standard and object of inquiry settled, the Court reiterates that in order for Shea to prevail, he must prove “(1) that the MLAAP was unlawful, (2) that except for his race, Shea was qualified for the program, and (3) that Shea was damaged during the period in question by the continuing effects of the MLAAP.” Shea, 850 F.Supp.2d at 163. At trial, Shea would have the burden of proving the unlawfulness of the MLAPP. See Johnson, 480 U.S. at 627, 107 S.Ct. 1442. He cannot do meet this burden with admissible evidence, and thus has “failfed] to make a showing sufficient to establish an element essential” to his case. Celotex, 477 U.S. at 322,106 S.Ct. 2548. A. Shea’s Prima facie Case of Discrimination Typically, when an “employer has asserted a legitimate, non-discriminatory reason” for taking an adverse action against the plaintiff, “the district court need not — and should not — decide whether the plaintiff actually made out a prima facie case under McDonnell Douglas.” Brady v. Office of Sergeant of Arms, 520 F.3d 490, 494 (D.C.Cir.2008) (emphasis in original). In many instances, determining whether the plaintiff has made out a prima facie claim is “a largely unnecessary sideshow,” id. — especially considering that in a “typical Title VII suit,” the plaintiff only needs to “establish that (1) he is a member of a protected class; (2) he suffered an adverse employment action; and (3) the adverse action gives rise to an inference of discrimination!.]” Checka v. Rite Aid of Washington, D.C., Inc., 538 F.Supp.2d 82, 86 (D.D.C.2008) (citing George v. Leavitt, 407 F.3d 405, 412 (D.C.Cir.2005)). However, “[w]hen the plaintiff is a white male and alleges reverse discrimination ... the requirement for establishing a prima facie case changes.” Checka, 538 F.Supp.2d at 86 (citing Harding v. Gray, 9 F.3d 150, 153 (D.C.Cir.1993)). Instead of showing that he is a member of a minority group, the plaintiff must show “ ‘background circumstances [that] support the suspicion that the defendant is the unusual . employer who discriminates against the majority.’ ” Harding, 9 F.3d at 153 (quoting Parker, 652 F.2d at 1017). This requirement is “not designed to disadvantage the white plaintiff,” but “merely substitutes for the minority plaintiffs burden to show that he is a member of a racial minority; both are criteria for determining when the employer’s conduct raises an ‘inference of discrimination.’ ” Id. at 153. A white male plaintiff may show background circumstances in one of two ways. First, he “may produce evidence that his employer has reason or inclination to discriminate against the majority.” Checka, 538 F.Supp.2d at 87 (citing Mastro v. Potomac Elec. Power Co., 447 F.3d 843, 851 (D.C.Cir.2006)). He may do so by presenting evidence of “political pressure to promote a particular minority because of his race, pressure to promote minorities in general, and proposed affirmative action plans.” Mastro, 447 F.3d at 851. Second, the plaintiff may offer evidence that there is “ ‘something ‘fishy’ about the facts of the case at hand that raises an inference of discrimination.’ ” Id. (quoting Harding, 9 F.3d at 153). “Evidence that a white plaintiff was given little or no consideration for a position that was given to a minority candidate or that a minority candidate was promoted over four objectively qualified white candidates has been sufficient to show ‘something ‘fishy[.]’ ” Checka, 538 F.Supp.2d at 87. At least one district court in this jurisdiction has held that the mere “existence of an affirmative action policy,” does not “automatically impl[y] discrimination against the majority” for the purposes of establishing a prima facie case. Schmidt v. Chao, Civ. No. 04-892, 2006 WL 1663389, *3 (D.D.C. June 13, 2006). “Rather, there must be a causal connection between the two, demonstrated by direct or circumstantial evidence.” Id. As an example of such a “causal connection,” the Schmidt Court cites Bishopp v. District of Columbia, 788 F.2d 781, 786 (D.C.Cir.1986), where “the connection between the existence of an affirmative action plan and reverse discrimination was made when the D.C. Fire Department promoted an African-American candidate, with obviously-inferior credentials, over four (4) Caucasian candidates who were better qualified.” Schmidt, 2006 WL 1663389, at *3. To show the necessary connection, Shea may offer some evidence creating an issue of material fact as to his qualifications for a mid-level position. In denying both parties’ motions for summary judgment, the Court found that “State has admitted [Shea’s] qualifications by failing to respond to proper requests for admissions.” Mem. Order 9, Aug. 11, 2009, ECF No. 69 (emphasis in original). Thereafter, State requested leave to amend its discovery responses. Def.’s Mot. Am./Correet, Jan. 7, 2010, ECF No. 75. Over Shea’s objection, this Court held: [I]t appears (a) that defendant’s asserted “admission” that plaintiff would have been qualified for MLAAP occurs only by operation of the government’s failure to respond to a request for admissions; and (b) that the failure to respond was justifiable, given the stops and starts that have occurred in this litigation. It also appears, however, (c) that injecting the rhetorical question of the plaintiffs qualifications for MLAAP at this late stage of this long-running case would not “promote the presentation of the merits of the action,” and (d) that it would prejudice the plaintiff in maintaining or defending the action on the merits. It is accordingly ORDERED that defendant’s motion is granted, but that, unless the government is prepared to demonstrate that any non-minority person applied for and was denied acceptance to MLAAP because of his or her qualifi cations, the plaintiff will be deemed to have been qualified for MLAAP — except for his race (or national origin, or ethnicity). Order 1-2, Feb. 2, 2010, EOF No. 78 (emphasis in original). In response, State identified two minority applicants who had applied for and were denied acceptance to MLAAP because of their qualifications. See Decl. of Alina Eldred ¶¶ 4-11, Sept. 17, 2012, ECF No. 128-2. This misread the Court’s Order. The Court required State to offer proof that non-minority applicants were denied acceptance to MLAAP because of their qualifications; it said nothing about the status of minority applicants. Since State’s submission was not responsive to this Court’s Order, the Court deems Shea to have been qualified for MLAAP, except for his race. State’s admission that Shea would have been qualified but for his race establishes the necessary causal connection between the MLAAP and discrimination against the majority. The burden of establishing “background circumstances” is “minimal,” and not intended to be “an additional hurdle for white plaintiffs.” Harding, 9 F.3d at 153-54. Therefore, this Court finds that Shea has demonstrated “background circumstances that support the suspicion that the defendant is the unusual employer that discriminates against the majority,” id. at 153, and thus has sufficiently stated his prima facie ease. B. State’s Reliance on its Affirmative Action Program Shea has established a prima facie case of employment discrimination under Title VII. Therefore, State has the burden of producing “admissible evidence that, if believed, would establish that the employer’s action was motivated by a legitimate, nondiscriminatory reason.” Teneyck, 365 F.3d at 1151. Under Johnson, the “existence of an affirmative action plan provides such a rationale.” 480 U.S. at 627, 107 S.Ct. 1442. “As a practical matter ... an employer will generally seek to avoid a charge of pretext by presenting evidence in support of its plan. That does not mean ... that reliance on an affirmative action plan is ... an affirmative defense requiring the employer to carry the burden of proving the validity of the plan. The burden of proving its invalidity remains on the plaintiff.” Id. at 626-27, 107 S.Ct. 1442. The “employer’s burden is one of production, not persuasion.” Teneyck, 365 F.3d at 1151. “By producing evidence (whether ultimately persuasive or not) of nondiscriminatory reasons,” the employer will have “sustained [its] burden of production.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 509, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993) (emphasis in original). Courts should not make credibility assessments regarding the employer’s evidence; an employer meets its burden if it “introducéis] evidence which, taken as true, would permit the conclusion that there was a nondiscriminatory reason for the adverse action.” Id. (emphasis in original). “The employer ‘need not persuade the court that it was actually motivated by the proffered reasons. It is sufficient if the defendant’s evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff.’ ” Antrum v. Washington Metro. Area Transit Auth., 710 F.Supp.2d 112, 118-19 (D.D.C.2010) (quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254-55, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)). The question then is whether State has offered evidence which, taken as true, permits the conclusion that State acted pursuant to a lawful affirmative action plan. To the extent this Court discusses evidence that goes beyond merely satisfying State’s burden of production, this does not suggest that State has — at any time — the burden of persuasion. State’s evidence concerning the lawfulness of its plan, however, can make it harder for Shea to prove that State’s asserted nondiscriminatory reasons are merely pretext and that State employed an unlawful affirmative action plan. See, e.g., Johnson, 480 U.S. at 626-27, 107 S.Ct. 1442. 1. Manifest Imbalance and Discrimination in the Workforce There must be a manifest imbalance in the workforce, reflecting discrimination in traditionally segregated job categories, justifying State’s adoption of an affirmative action plan. Weber, 443 U.S. at 208, 99 S.Ct. 2721. As explained by Weber and Johnson, statistically significant disparities between minorities in the workplace and qualified minorities in the labor market may establish a manifest imbalance. For “skilled” positions the relevant comparator group is the number of minorities with the requisite qualifications. Johnson, 480 U.S. at 632-33, 107 S.Ct. 1442 (“[I]n determining whether an imbalance exists that would justify taking sex or race into account, a comparison of the percentage of minorities or women in the employer’s work force with the percentage in the area labor market or general population is appropriate in analyzing jobs that require no special expertise.... Where a job requires special training, however, the comparison should be with those in the labor force who possess the relevant qualifications.”).' Since affirmative action plans are justified by their “remedial” purpose, State must offer some evidence of a “predicate of discrimination.” See Hammon, 826 F.2d at 80-81. Stark statistical disparities might, by themselves, infer past discrimination by the employer. See Johnson, 480 U.S. at 636, 107 S.Ct. 1442 (manifest imbalance shown when none of the 238 skilled positions were occupied by a women). If the statistical comparisons merely reflect general societal discrimination — for which the employer was not responsible — the numbers alone might not justify remedial action. See Hammon, 826 F.2d at 80-81. State is not required to “admit” to past discrimination. Johnson, 480 U.S. 616, 650, 107 S.Ct. 1442 (O’Connor, J., concurring) (“Although the employer need not point to any contemporaneous findings of actual discrimination, ... the employer must point to evidence sufficient to establish a firm basis for believing that remedial action is required[.]”). Nevertheless, there must be “evidence of at least the effects of the employer’s past or current discrimination.” 2 Linuemann, Grossman & Weirich, Employment Discrimination Law at 2526 (citing Hammon, 826 F.2d at 74-75 & n. 1). Some combination of statistical imbalance and evidence of the employer’s past or current discrimination can provide the necessary factual predicate to justify a remedial affirmative action plan. See, e.g., id. at 2525; Johnson, 480 U.S. at 632, 107 S.Ct. 1442; Hammon, 826 F.2d at 74-75, 80-81. a. Statistical imbalance and minority underrepresentation The defendant offers sufficient evidence to show that a finding of significant minority underrepresentation motivated the State Department’s adoption of its affirmative action plan. As discussed in Part I.A. supra, the chronic underrepresentation of minorities in the State Department — and the mid- and senior-levels of the Foreign Service in particular — had long been an issue. Congress demanded greater minority representation at State, and closely monitored State’s efforts to set and meet diversity goals. See 1986-87 FRAA, Pub. L. 99-93; 1988-89 FRAA, Pub. L. 100-204. Congress held hearings where representatives discussed minority underrepresentation in the Foreign Service, explored the nature and extent of the problem, and asked State what it was doing to fix the problem. See Underrepresentation of Women and Minorities in the Foreign Service — State Department: Hearing Before the Subcomm. on the Civil Service of the H. Comm, on Post Office and Civil Service, 101st Cong. (1989) (Ex. 4 to Def.’s Cross-Mot.); The Department of State in the 21st Century: Joint Hearing Before the Subcomm. on Int’l Operations of the H. Comm, on Foreign Affairs & the Subcomm. on the Civil Service of the H. Comm, on Post Office and Civil Service, 101st Cong. (1989) (Ex. 5 to Def.’s Cross-Mot.). In the late 1980s — directly preceding the drafting and adoption of the 1990-92 MLAAP — two reports studied the Foreign Service personnel and management systems. Thomas Commission Report; Bremer Study Group Report, Congress mandated the “Thomas Report” in the 1988-89 FRAA; the Secretary of State himself commissioned the “Bremer Report.” See The Department of State in the 21st Century (prepared statement of Rep. Gerry Sikorski, Chairman, Subcomm. on Civil Service). As interpreted by Rep. Gerry Sikorski, the Chairman of the Civil Service Subcommittee, these reports “tell [Congress] that management of the U.S. Foreign Service is seriously flawed.” Id. The reports “show that officer training has particularly suffered,” and address in particular the “issues of recruitment, career development and training, the underrepresentation of women and minorities, [and] the lack of management skills[.]” Id. In June 1989, the General Accounting Office (“GAO”) issued a report titled, “State Department: Minorities and Women Are Underrepresented in the Foreign Service.” See Ex. 3 to Def.’s Cross-Mot. This report found that while existing affirmative action programs had made some progress, minorities remained underrepresented: The State Department increased minority representation in the Foreign Service from 7 percent in 1981 to 11 percent in 1987.... In 1987 minorities and white women were still substantially underrepresented when compared to civilian labor .force data that the EEOC has issued to measure federal agencies. Progress has been mixed in the FS officer and specialist categories. At the entry level, underrepresentation in the FS officer corps has been eliminated, except for Asian-Amerieans/Pacific Islanders. In the mid-level ranks of the officer corps, minority male representation has increased, but minority and white women have made less progress. In State’s Senior Foreign Service positions, underrepresentation of minorities and white women is still pervasive. Id. at 15 (Shea — 008689). An accompanying chart shows that, as of September 1987, females of every race were underrepresented as senior and mid-level Foreign Service Officers, minorities of every race were underrepresented as senior Foreign Service Officers, and Hispanics and Asian/Pacific Islanders were underrepresented in the mid-levels. Id. at 20 (Table 2.3: Underrepresentation of Minorities and White Women in State’s Foreign Service by Grade (As of Sept. 1987)) (Shea— 008694). Shea seizes on this chart — and State’s unfortunate misinterpretation of it — as evidence that not all MLAAP — eligible minority groups were underrepresented. See Pl.’s Opp’n & Reply 4-6. After all, the chart showed that as of 1987 black and Indian/Alaskan males were fully represented in the Foreign Service Officer mid-levels. However, this chart neither undermines State’s evidentiary proffer that the MLAAP was lawful, nor proves that the MLAAP was wrelawful. First, the GAO report acknowledged the limitations of its numbers — the agency had to compare 1987 State Department employment data, with a 1980 comparator population: The criteria established by the EEOC is based on 1980 census data, but considerable change has occurred in the civilian labor force since 1980. If these changes were considered in analyzing State’s representation, the extent to which minorities and women are underrepresented would be worse than depicted in table 2.3. Bureau of Labor Statistics data shows that blacks, Hispanics, and white women have increased their representation in the civilian labor force in recent years. Ex. 3 to Def.’s Cross-Mot. 21 (Shea— 008695). Hammon made clear that a court must use the most recent available data when determining whether there is a manifest imbalance. 826 F.2d at 77-78. When State adopted the 1990-92 MLAAP, it had more recent work force data available. See Ex. 2 to Def.’s Cross-Mot. 47-47a (Shea — 00116-17) (discussed in more detail infra). Second, Shea’s criticism takes a narrow view of the MLAAP. The MLAAP may work to increase minority representation not only in the mid-levels, but also in the senior-levels. Table 2.3 shows across-the-board minority underrepresentation in the senior-levels. Ex. 3 to Def.’s Cross-Mot. 20 (Shea — 008694). Mid-level minority placement may not be necessary for all groups, if the only concern was underrepresentation in the mid-levels. However, mid-level placement helps alleviate the significant underrepresentation of minorities in the senior levels by making more minorities eligible for promotion into the Senior Foreign Service. Viewed this way, Table 2.3 does not undermine State’s evidentiary proffer. When State formally adopted the revised 1990-92 MLAAP, it made additional findings about manifest imbalance based on more recent work force and labor pool data. The document describing the 1990-92 MLAAP includes several analyses of the State Department workforce, and which job categories had a “manifest imbalance” for which groups. See Ex. 2 to Def.’s Cross-Mot. 45-53a (Multi-Year Affirmative Action Plan FY 1990-92) (Shea— 00108-33). In making these comparisons, officials compared State employment data from FY 1989 and 1990 with the most recent Occupational National Civilian Labor Force Data for Public Administration Administrators and Officials. See id. at 47 (Shea — 00116). The analysis of Foreign Service Generalists showed a “manifest imbalance” for ‘White females, Black males, Black females, Hispanic females, American Indian males, [and] American Indian females.” Ex. 2 to Def.’s Cross-Mot. 47 (Shea — 00116). The document also showed that within the Senior Foreign Service “minority officers were promoted at a lower rate (3.7 percent) than White males (8.8 percent) or White females (9.0 percent).” Id. at 74 (Shea — 00153). Minorities were also promoted from the lower-levels to the mid-levels — and within the mid-levels — at a lower rate than white men or women. Id. While the data showed that minorities were promoted from class FS-01 to the Senior Foreign Service at a marginally higher rate, id., the plan warned that: It is important to note, however, that promotion rates at the senior levels are based on a very small number of eligible minorities and White women. For example, Black females were promoted to the Senior Foreign Service at a 33-percent rate (2 of 6) compared with an 11-percent rate for White males (170 of 1,518). Id. at 75 (Shea — 00154). The fact that there were so few minorities even eligible for promotion into the Senior Foreign Service skewed the statistics regarding promotion rates. “Over-inclusiveness” charges can also be levied at the 1990 data. The 1990-92 plan document does not show that all minority groups eligible for the MLAAP were in fact underrepresented in the mid-levels. However, this does not necessarily undermine State’s evidentiary proffer. First, as detailed supra, mid-level minority hiring not only immediately cured imbalances in the mid-levels, but created more opportunities for minorities to ascend to the Senior Foreign Service. As the 1990-92 plan noted, very few minorities were eligible for promotion into the Senior Foreign Service. Id. Second, while the MLAAP was “open” to all EEO minority groups, the plan only established representation goals for groups for which it found a “manifest imbalance.” See id. at 54 (for Foreign Service Generalists, establishing goals to increase the representation of white females, black males, black females, Hispanic females, American Indian males, and American Indian females — the same groups the plan identified earlier as being underrepresented) (Shea — 00134). Or as the defendant puts it, “the 1990-1992 MLAAP corrected for the weakness identified by the GAO ... and specifically identified the manifest imbalance in each specific minority group within which Foreign Service ‘conal system’ (Administrative, Consular, Economic and Political), as compared to the more timely data for a comparator population, and then set goals for only those underrepresented groups.” Def.’s Reply ISO its Cross-Mot. Summ. J. 12 (“Def.’s Reply”), Oct. 3, 2012, ECF No. 133 (citing Ex. 2 to Def.’s Cross-Mot 46-46b, 47-47a, 50-51b, 54, 61-67). b. Showing of a predicate of discrimination The bare numbers only tell one side of the story. State does rely solely on a statistical imbalance in the mid- and senior-levels. It has also provided evidence regarding past discrimination in the Foreign Service and institutional and systemic barriers to minority advancement. State has provided enough evidence to show a “predicate of discrimination” implying the statistical imbalances are due in part to some past discrimination by State, rather than simply reflecting societal discrimination. See Hammon, 826 F.2d at 74-75, 80-81. State’s hiring and promotion practices had been the subject of many employment discrimination lawsuits. See Underrepresentation of Women and Minorities in the Foreign Service (statement of Rep. Sikorski) (detailing history of discrimination suits against State, stating: “This is not a new phenomenon. The department has lost a lot of money in a variety of litigation regarding discrimination.”). State, and the Foreign Service in particular, drew the ire of Congress. The Thomas and Bremer Reports, discussed supra, went beyond calculating rates of minority representation. With a particular emphasis on the Foreign Service, the reports examined which practices contributed to — and exacerbated — minority underrepresentation. The reports identified systemic and procedural barriers to minority hiring and advancement. See Thomas Comm. Report; Bremer Study Group Report; The Department of State in the 21st Century (prepared statement of Rep. Gerry Sikorski). These findings were echoed by officials from the GAO, who concluded that “some of State’s hiring, promotion, and assignment processes have a disproportionate effect on minorities and women.” Underrepresentation of Women and Minorities in the Foreign Service, (statement of Joseph Kelly, Director, Security & Int’l Affairs Div., GAO). These reports focused on recent issues — not, as in Hammon, issues buried deep in the past. 826 F.2d at 77-78 (employer may not rely on findings of discrimination from decades ago, but should justify its plan with evidence of more recent discrimination). Prior to the adoption of the 1990-92 MLAAP, some officials concluded that the Foreign Service was “discriminatory.” For example, Rep. Sikorski, Chairman of the House Civil Service Subcommittee, held a hearing on September 22, 1989, titled, “Underrepresentation of Women and Minorities in the Foreign Service.” See Ex. 4 to Def.’s Cross-Mot. In his introductory remarks, Rep. Sikorski called the Foreign Service an “old-boys club,” and cited a litany of studies and lawsuits charging the State Department with discrimination. Id. He noted that “[t]he necessity and extent of legal actio