Bronze Shields v. New Jersey Dept. of Civil Serv.

Citation488 F. Supp. 723
Decision Date08 April 1980
Docket NumberCiv. No. 2022-72,Civ. 950-73.
PartiesBRONZE SHIELDS, INC., et al. v. NEW JERSEY DEPARTMENT OF CIVIL SERVICE et al. VULCAN PIONEERS, INC., et al. v. NEW JERSEY DEPARTMENT OF CIVIL SERVICE et al.
CourtU.S. District Court — District of New Jersey

Jonathan M. Hyman, Newark, N. J., for plaintiff.

Peter Calderone, M. Kathleen Duncan, Deputy Attys. Gen., Trenton, N. J., for State of New Jersey defendants.

William Schwartz, and Matthew J. Scola, Newark, N. J., for defendant City of Newark.

OPINION

SAROKIN, District Judge.

PROCEDURAL HISTORY

The actions before this Court challenge the legality of the hiring and promotional practices of the Newark Police Department ("Bronze Shields") and of the Newark Fire Department ("Vulcan Pioneers"). Plaintiffs in both actions allege in Count One of their Amended Complaint that defendants' policies violate the Thirteenth and Fourteenth Amendments, 42 U.S.C. §§ 1981 and 1983, and in Count Two, Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq.1 Defendants have moved for summary judgment to dismiss Count One in each action primarily on the basis that the constitutional claims and 42 U.S.C. §§ 1981, 1983 require proof of purposeful, intentional discrimination which plaintiffs have failed to allege.2

STATEMENT OF THE CASE

The Bronze Shield action alleges discriminatory hiring and promotional practices by the Newark Police Department. Plaintiffs are Black and Hispanic police officers, applicants for such positions, and a policemen's organization open to all members of the Newark Police Department. Defendants are the New Jersey Department of Civil Service, which develops and administers the civil service examinations, N.J.Stat. Ann. § 11:1-1 et seq. (West 1976), the Chief Examiner, the New Jersey Civil Service Commission, which prescribes rules for administering civil service laws, N.J.Stat.Ann. §§ 11:5-1, 6-1 (West 1976), the President and three commissioners thereof, the City of Newark, and the director of the Newark Police Department.

Plaintiffs allege that the Newark Police Department's background investigation practices and use of civil service examinations discriminate against them in their employment in violation of 42 U.S.C. §§ 1981, 1983 and the Thirteenth and Fourteenth Amendments to the Constitution.

The Vulcan Pioneers action challenges the legality of the hiring and promotional policies of the Newark Fire Department. Plaintiffs are a Black fireman, applicants for that position, and a firemen's organization open to all members of the Newark Fire Department. Defendants are the same as those named in Bronze Shields with the exception of the Director of the Newark Fire Department who was named in lieu of the Newark police director. The complaint alleges the same discriminatory practices as set forth in Bronze Shields.

Jurisdiction herein is invoked pursuant to 28 U.S.C. §§ 1331 and 1343(3), (4). Venue is proper in this Court under 28 U.S.C. § 1391(b).

The issue before this Court on this motion for summary judgment is whether the plaintiffs must prove that defendants intentionally discriminated against them because of their race in order to establish a violation of 42 U.S.C. § 1981.3 The plaintiffs in this action have alleged racial discrimination in that a greater percentage of white persons than black or Hispanic have been hired and promoted by the Newark Police Department and Newark Fire Department.

DISCUSSION

Plaintiffs Bronze Shields and Vulcan Pioneers argue that the proper standard for proving a § 1981 discrimination action does not include an examination of the employer's intent. The plaintiffs urge this Court to adopt the holding of Davis v. County of Los Angeles, 566 F.2d 1334 (9th Cir. 1977), vacated as moot, 440 U.S. 625, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979) that disparate impact is sufficient to establish a prima facie case of employment discrimination under § 1981. Defendants contend that although there is a conflict among the circuit and district courts,4 constitutional standards should be applied in § 1981 cases; therefore intent must be a prerequisite to prove discrimination under § 1981. The defendants, therefore, urge that since plaintiffs have made no prima facie showing of intentional discrimination, the §§ 1981, 1983 and the Thirteenth and Fourteenth Amendment claims should be dismissed. This Court finds that intent is necessary to establish a claim of employment discrimination under § 1981. For the following reasons, defendants' motions for summary judgment are granted.

Different standards of proof have evolved in employment discrimination cases depending upon the precise statutory or constitutional ground of the alleged violation. For example, in Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971),5 the Supreme Court held that Title VII6 requires the elimination of artificial, arbitrary, and unnecessary barriers to employment that operate invidiously to discriminate on the basis of race or other impermissible classifications. Id. at 431, 91 S.Ct. at 853. "If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited," notwithstanding the employer's lack of discriminatory intent. Id. at 431-33, 91 S.Ct. at 853. The Supreme Court stated that

good intent or absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as "built-in headwinds" for minority groups and are unrelated to measuring job capability . . . Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation.

Id. at 432, 91 S.Ct. at 854. (emphasis in original). Therefore, in order to prove a claim of employment discrimination, a plaintiff need only show that the facially neutral employment practice has a "disparate impact" or effect on racial minorities.7 The burden of proof then shifts to the defendant who must show business justification in order to preserve the practice. Id. at 432, 91 S.Ct. at 854. See generally B. Schlei & P. Grossman, Employment Discrimination Law at 1158 (1976 & Supp. 1979).

More recently, in its landmark decisions, Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976) and Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 264-71, 97 S.Ct. 555, 562, 566, 50 L.Ed.2d 450 (1977), the Supreme Court held that proof of both an invidious discriminatory purpose and a racially disproportionate impact is necessary to establish that government action violates the Fifth or Fourteenth Amendments.

In Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), the plaintiffs, Black police officers and applicants, alleged discrimination against District of Columbia officials, claiming the Police Department's recruiting and promotional procedures were discriminatory on the basis of race in violation of the Fifth Amendment8 and the District of Columbia Code.9 These practices included a written personnel test which operated to disqualify a disproportionately high number of Black applicants. Id. at 232-33, 96 S.Ct. at 2044.

The district court granted defendants' motion for summary judgment based upon, inter alia, its determination that plaintiffs' claim lacked any allegations of intentional discrimination. The Court of Appeals for the District of Columbia reversed, ruling that lack of discriminatory intent was irrelevant to a determination of constitutional violations, if it could be shown that the test had a disproportionate impact on minorities and no adequate countervailing justification for the test could be established by the city.

The Supreme Court found that the Court of Appeals below had erroneously applied the Title VII standard of proof, disparate impact, to a case involving constitutional standards. The Court determined the appropriate analysis for claims based upon the Fifth Amendment and the Fourteenth Amendment is under the equal protection clause. Id. at 239, 96 S.Ct. at 2047. Using the equal protection constitutional standard, the Court held that a facially neutral employment practice is generally not unconstitutional because it has a racially discriminatory impact. Id. The Court further stated:

The central purpose of the Equal Protection Clause of the Fourteenth Amendment is the prevention of official conduct discriminating on the basis of race . . our cases have not embraced the proposition that a law or other official act, without regard to whether it reflects a racially discriminatory purpose, is unconstitutional solely because it has a racially disproportionate impact.

Id.

In Arlington Heights, the Supreme Court reiterated the Washington v. Davis principle that "official action will not be held unconstitutional solely because it results in a racially disproportionate impact." 429 U.S. at 264-65, 97 S.Ct. at 563. Arlington Heights involved a zoning board's refusal to rezone land from a single-family to a multiple-family classification. Consequently, a low-rent project could not be built, and plaintiffs attacked the village's zoning plan as racially discriminatory. The district court ruled that the village was not motivated by racial discrimination, but by a desire to maintain the village's zoning plan and to protect property values in the area. The Seventh Circuit reversed because of the disproportionate racial effect of the refusal.

The Supreme Court reversed, noting the finding of both courts below that no discriminatory intent had been proved. Id. at 270-71, 97 S.Ct. at 566. Justice Powell reiterated the Davis proposition that "disproportionate impact is not irrelevant, but it is not the sole touchstone of an invidious racial discrimination." Id. at 265, 97 S.Ct. at 563 (citing Washington v. Davis, supra, 426 U.S. at 242, 96 S.Ct. at 2048). (emphasis added). He noted, however, that "Davis does not require a plaintiff to prove that...

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  • Ganguly v. NEW YORK STATE DEPT., ETC., 78 Civ. 568 (CES).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • March 25, 1981
    ...553 (S.D.N.Y.1979). See Whiting v. Jackson State Univ., 616 F.2d 116, 121 (5th Cir. 1980); but see Bronze Shields, Inc. v. N.J. Dept. of Civ. Serv., 488 F.Supp. 723, 729 (D.N.J.1980). Disparate impact is shown if the criteria used to determine job eligibility operate to exclude minorities. ......
  • Bronze Shields, Inc. v. New Jersey Dept. of Civil Service, s. 80-2003
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    ...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......
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    ...(considering burden-shifting analysis and pretext in a disparate impact case); Bronze Shields, Inc. v. N.J. Dept. of Civil Serv., 488 F.Supp. 723, 726–27 (D.N.J.1980) (applying burden-shifting analysis and considering a 42 U.S.C. § 2000e–2(h) defense in a disparate impact claim under Griggs......
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