Bronze Shields, Inc. v. New Jersey Dept. of Civil Service
| Decision Date | 28 December 1981 |
| Docket Number | 81-1133,Nos. 80-2003,s. 80-2003 |
| Citation | 667 F.2d 1074 |
| Parties | 27 Fair Empl.Prac.Cas. 749, 27 Empl. Prac. Dec. P 32,287 BRONZE SHIELDS, INC., Percell Goodwyn, Ramon Gonzalez, Hipolito Hernandez, Frank Howard, Jr., Willie C. Jackson, Johnson Livingston, Claude Pittman, John W. Reid, Willie C. Sanders, Marvin E. Thomas, Alonzo Williams, Rubin J. Battle, Floyd Bostic, Jr., Lynette Crawford, Charles Harris, Olivia Howard, Appellants, v. The NEW JERSEY DEPARTMENT OF CIVIL SERVICE, Ralph P. Shaw, Chief Examiner of the Department of Civil Service, the New Jersey Civil Service Commission, S. Howard Woodson, President of the Civil Service Commission, Thomas DeLuca, John Holden, Matthias Rodriguez and Charles Walther, Commissioners of the Civil Service Commission, the City of Newark, New Jersey, a municipal corporation, John Redden, Director of the Newark Police Department. |
| Court | U.S. Court of Appeals — Third Circuit |
Jonathan M. Hyman (argued), and Elizabeth M. Schneider, Rutgers Constitutional Litigation Clinic, Newark, N. J., and Jack Greenberg, and O. Peter Sherwood, New York City, N. Y., for appellants.
John J. Degnan, Atty. Gen. of New Jersey, Erminie L. Conley, Asst. Atty. Gen., Peter J. Calderone, Deputy Atty. Gen. (argued), Trenton, N. J., for State appellees.
John J. Teare, Acting Corp. Counsel, Matthew J. Scola, Asst. Corp. Counsel (argued), Newark, N. J., for appellees, City of Newark and Redden.
Before VAN DUSEN, WEIS and HIGGINBOTHAM, Circuit Judges.
Plaintiffs charged defendants in a two-count complaint with discriminating on the basis of race and ethnic origin in the hiring and promotion of police officers in the Newark, New Jersey, police department. Plaintiffs allege defendants have violated 42 U.S.C. § 1981 (count I) 1 and Title VII, 42 U.S.C. § 2000e et seq. (count II). The district court, 488 F.Supp. 723, granted defendants' motion for summary judgment on the § 1981 claim because plaintiffs had failed to allege or demonstrate any intent on the part of defendants to discriminate. 2 Intentional discrimination, the district court held, is a necessary element of a § 1981 cause of action. The district court dismissed the Title VII claim because plaintiffs had not filed charges with the Equal Employment Opportunity Commission ("EEOC") within the statutorily required 180 days. 3 Plaintiffs appeal both the summary judgment granted on count I and the dismissal of their claim under count II. We affirm the district court action on count I as to all except the Newark defendants (see page 4 below) and on count II as to all defendants.
To become a Newark police officer an applicant must first pass a written examination administered by defendant New Jersey State Department of Civil Service ("State Civil Service"). If the applicant passes this examination, he or she must pass a physical and medical examination, again given by the State Civil Service. 4 Those who successfully complete these examinations are placed on an eligibility roster in the order in which they scored on the written test. 5 This roster is distributed to the various municipalities, including defendant City of Newark ("Newark"). Defendant Newark then screens all those applicants listed on the eligibility roster. This screening includes, but is not limited to, an investigation of the applicant's character, personal life, reputation, a personal interview, and a psychiatric examination. Any applicant who does not withstand this screening process is removed from the roster. Newark hires recruits for its police department as needed from the eligibility roster in the order on the list.
Defendant State Civil Service also prepares an eligibility roster for the promotion of officers within municipal police departments. This roster is compiled on the basis of a written examination, years in service, and a service rating.
Plaintiffs include Bronze Shields, Inc., a non-profit New Jersey corporation whose purpose is to eliminate racial discrimination against policemen generally and, more specifically, to promote the employment and promotion of black police officers within the Newark police department. Individual plaintiffs include several applicants for the position of police officer in Newark who either failed the written civil service examination (Olivia Howard, Crawford, and Jackson), the physical or medical examination (Gonzalez and Hernandez), or the screening carried out by Newark (Livingston, Thomas, and Pittman). Plaintiffs Reid, Williams, and Frank Howard are Newark police officers who, for a variety of reasons, defendants did not place on the list of those eligible for promotion.
Defendants include the State Civil Service which is responsible for the development and administration of standards, including examinations, that condition the hiring and promotion of municipal police officers throughout the State of New Jersey. N.J.Admin.C. tit. 4:1-3.5. Defendant New Jersey State Civil Service Commission is subsumed under the State Civil Service. N.J.Admin.C. tit. 4:1-3.1. These defendants, and the individual defendants employed by the state, are referred to as the state defendants. The remaining two defendants, Newark and the supervisor of the Newark police department, are, in the following discussion, referred to collectively as Newark. Newark uses the state-prepared eligibility lists and its own screening procedures to determine the candidates eligible for hire by the police department.
Because the allegations in plaintiffs' complaint are important to the determination of all the issues presented, we describe them in detail. Plaintiffs first charge both Newark and the state defendants with racial discrimination for their respective roles in either promulgating or using the eligibility roster for the hiring of Newark police officers. The eligibility roster, as initially published by the State Civil Service, is based on written, physical and medical examinations. The written examination, plaintiffs charge, has a disproportionate impact on minorities: a larger percentage of blacks and Hispanics who take the examination fail as compared to whites. For those applicants who voluntarily disclosed their race, the following passed the civil service examination:
Spanish-speaking
White Male Black Male Male
---------------- ---------------- ------------------
Test No. % No. % No. %
Date Passing Passing Passing Passing Passing Passing
-------- ------- ------- ------- ------- -------- --------
5/ 8/72 567 43% 27 17% 6 10%
6/19/72 233 60.8% 13 25% 3 100%
7/17/72 614 66.1% 63 28.6% 16 25%
9/22/72 236 62.3% 5 25% 3 25%
11/18/72 770 72.4% 78 39.8% 29 35.8%
3/19/73 709 55.4% 21 20.6% 7 18.4%
5/23/73 49.4% 19.4% 31.9%
8/ 6/73 62.8% 28.1% 24.8%
4/15/74 390 44% 6 13% 4 16%
7/15/74 633 67% 16 25% 16 45%
6/21/75 36.8% 14.5% 11.3%
The state-administered physical examination, plaintiffs contend, excludes a disproportionate number of Hispanic applicants because it requires that all candidates be 5 feet 7 inches tall. The two contested examinations, along with a medical examination, provide the basis for the roster promulgated by the state defendants and used by the Newark police department. The use of this eligibility roster, plaintiffs allege, results in a pattern of unlawful employment discrimination on the basis of race and ethnic origin. Newark, then, is charged with discrimination for its use of the eligibility roster; the state related defendants are charged with discrimination for the promulgation of the offending list.
Plaintiffs have charged Newark alone with employment discrimination because of the screening procedures it uses to further reduce the number of candidates on the eligibility roster. These screening procedures, only vaguely set out in the complaint, allegedly have a disproportionate impact on blacks and Hispanics, are not job related, and are applied arbitrarily.
Both the state defendants and Newark are accused of discriminating for their part in the promulgation or use of the eligibility roster used to promote, as compared to hire, officers within the Newark police department. New Jersey law, N.J.Admin.C. tit. 4:1-8.4.-6, requires that the State Civil Service consider three factors in compiling the eligibility list for promotions: number of years in service, service rating given by a supervisor, and score on a written examination. Consideration of years in service, plaintiffs claim, continues the effects of past discrimination. The service rating is a discretionary decision which, plaintiffs argue, reflects the bias and prejudice of the generally white decision maker. Finally, plaintiffs charge that the written promotion examination, administered by the State Civil Service, has a disproportionately negative effect on the promotional opportunities for blacks and Hispanics.
Plaintiffs initially filed their complaint in 1972, alleging discrimination by defendants in violation of 42 U.S.C. §§ 1981 and 1983 and the Thirteenth and Fourteenth Amendments of the Constitution. No claim based on Title VII was made at that time. On November 26, 1974, the district court issued a preliminary injunction in favor of plaintiffs. This injunction required Newark to hire one black or Hispanic police officer for every two white officers hired. 6
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