The Omaha Fire Department had an affirmative action plan that provided for the following regarding promotions: The percentage of African Americans currently in promotional positions was compared against the percentage available within the department. If there was evidence of underutilization of African Americans in any promotional position, hiring goals were set. The goals reflected the number of African Americans who would have to be promoted to eliminate the underutilization, rounded off so that numbers with fractions lower than 1/2 (e.g., 2.3) were rounded down and numbers with fractions above 1/2 (e.g., 2.7) were rounded up. For job categories with underutilization, the personnel director was required to deviate from the usual procedure of referring the top scorers on the civil service eli- gibility list and refer additional minority candi- dates. Hiring decisions were made by the fire chief, who, in addition to other factors, took race into account. A white candidate for the position of Battalion Chief was passed over for promotion in favor of an African American candidate lower on the eligibility list. The chief said that numer- ous factors were considered in making this pro- motion, including the fact that only one out of twenty-eight battalion chiefs was African American. The white candidate sued. What should the court decide? Why? (Kohlbek v. City of Omaha, Nebraska, 447 F.3d 552 (8th Cir. 2006))