Hood v. New Jersey Dept. of Civil Service
| Citation | 680 F.2d 955 |
| Decision Date | 10 June 1982 |
| Docket Number | No. 80-2179,No. 80-2609,80-2609,Nos. 80-2179,80-2179,s. 80-2179 |
| Parties | 29 Fair Empl.Prac.Cas. 65, 29 Empl. Prac. Dec. P 32,843 HOOD, George Jr., on behalf of himself and a class of others similarly situated, Appellant in, v. NEW JERSEY DEPARTMENT OF CIVIL SERVICE, New Jersey Civil Service Commission, and City of Newark. and VULCAN PIONEERS, INC., William Thomas, Joseph Head, Charles Lige, Ernest Smith, Benjamin Josephs, Ronald Heath, Appellants in, 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 P. Caulfield, Director of the Newark Fire Department. |
| Court | United States Courts of Appeals. United States Court of Appeals (3rd Circuit) |
Jonathan M. Hyman (Argued), Elizabeth M. Schneider, Newark, N. J., O. Peter Sherwood, Jack Greenberg, New York City, for appellants.
William Harla (Argued), Erminie L. Conley, John J. Degnan, Peter J. Calderone, Newark, N. J., Matthew J. Scola, West Orange, N. J., for appellees.
Before HUNTER, SLOVITER and WISDOM, * Circuit Judges.
These two appeals involve allegations of racial discrimination in the hiring and promotion of firefighters in Newark, New Jersey. 1 Plaintiffs assert that defendants have violated 42 U.S.C. § 1981 (1976) and 42 U.S.C. § 2000e et seq. (1978) ("Title VII") by promulgating and using a Civil Service examination which resulted in a disproportionate number of black and Hispanic applicants being excluded from positions in the fire department. The district court dismissed the Title VII claims because plaintiffs had failed to file charges with the Equal Employment Opportunity Commission ("EEOC") within the statutorily-prescribed period. Summary judgment was entered for defendants on the remaining claims because plaintiffs had not alleged the presence of discriminatory intent. We have held these appeals under advisement, pending our decisions in Croker v. The Boeing Co., 662 F.2d 975 (3d Cir. 1981) and Bronze Shields, Inc. v. New Jersey Department of Civil Service, 667 F.2d 1074 (3d Cir. 1981). In light of these recent decisions, 2 we will affirm the conclusions of the district court.
The City of Newark uses the New Jersey Civil Service examination to determine initial eligibility for hiring and promotions in the fire department. The Civil Service examinations at issue are administered on a statewide basis; they are not limited to Newark residents. Between 1972 and 1976, the City of Newark hired and promoted firemen on the basis of these test results; those who scored highest were hired (or promoted) first. New Jersey municipalities were prohibited by law from granting any preference to municipal residents in firefighter appointments.
The names of those individuals who successfully completed the examination and met minimum qualifications were placed by the Civil Service on an eligibility list with placement determined by test results. This roster was subject to established veterans' preference requirements. 3 Once a particular roster had been promulgated, each applicant was notified as to whether he or she had passed the examination as well as the position he or she held on the roster.
Vulcan Pioneers (Heath)
In 1973, a complaint was filed in federal court by Vulcan Pioneers, Inc., alleging discrimination against blacks and Hispanics in the hiring and promotion of firefighters in Newark, New Jersey, in violation of 42 U.S.C. §§ 1981, 1983 (1976), and the thirteenth and fourteenth amendments. Two sub-classes were certified: blacks and Hispanics who were not hired because of discriminatory practices, and blacks and Hispanics not promoted because of discriminatory practices.
Ronald Heath, a black firefighter with the City of Newark since 1963, had competed in a promotional test for which an eligibility list was compiled on July 4, 1972, with an expiration date of July 3, 1975. Heath On July 27, 1976, Heath filed a complaint with the EEOC. He asserted that the New Jersey Department of Civil Service and the State Civil Service Commission administered hiring and promotional examinations for Newark firefighter positions which discriminated against blacks and Hispanics. He received a right-to-sue letter in April 1977, and the original complaint filed by Vulcan Pioneers was subsequently amended on January 6, 1978 to add a second count based on the Title VII charge filed by Heath.
failed the examination. The last appointments made from the list were on June 30, 1975.
On February 23, 1979, the district court, in an unpublished opinion, dismissed the Title VII claim on the ground that Heath's 1976 EEOC charge was not filed within the statutorily-designated period of 180 days. 4 The district court found that the charge of discrimination stemmed from the composition of the list and that an EEOC charge, to be timely, should have been filed within 180 days of the promulgation of the list on July 4, 1972. The district court held that the continued existence of the list did not toll the 180-day statutory period until the expiration of the list on July 3, 1975. Plaintiffs' cross-motion for certification of a Title VII class was denied as moot. Vulcan Pioneers v. New Jersey Department of Civil Service, No. 950-73 (D.N.J., filed Feb. 23, 1979). Appendix at 43. The court granted summary judgment for defendants on the §§ 1981 and 1983 and the thirteenth and fourteenth amendment claims on April 8, 1980, and plaintiffs appealed. 5
On May 18, 1978, George Hood filed an EEOC charge against the Department of Civil Service and the State Civil Service Commission alleging discrimination against blacks and Hispanics in the hiring of firefighters to entry level positions. He received a right-to-sue letter and subsequently filed a complaint on April 15, 1980, asserting his Title VII charge. 6
Upon motion of defendants, Hood's complaint was dismissed. The district court found the underlying EEOC complaint to have been untimely filed because Hood's complaint fell well outside of the 180-day time limit prescribed by the statute. Hood's name appeared on the hiring list which was used between October 4, 1973 and October 3, 1976, with the last appointment from the list being made on December 2, 1974. Hood appealed.
On December 17, 1980, we consolidated the appeals in Vulcan Pioneers and Hood because of the identity of factual and legal issues involved.
These appeals raise two issues: 1) whether the Title VII claims filed by Health and Hood were timely; and 2) whether Vulcan Pioneers' claim, based upon 42 U.S.C. § 1981, requires a showing that there has been an intent to discriminate.
The district court ruled that the EEOC complaint by Heath should have In its opinion, the district court also rendered a decision on a Title VII class certification motion in the related case of Bronze Shields, Inc. v. New Jersey Department of Civil Service, No. 2022-72 (D.N.J., filed Feb. 23, 1979). This decision, along with a subsequent decision rendered by the district court in Bronze Shields, 9 was reviewed by us in Bronze Shields, Inc. v. New Jersey Department of Civil Service, 667 F.2d 1074 (3d Cir. 1981). In Bronze Shields, the named plaintiffs failed the Civil Service examination used by the City of Newark to determine eligibility for hiring police officers. Plaintiffs filed EEOC charges prior to the expiration of the hiring list but more than 180 days after its promulgation. The list was used only once, sixteen months after the filing of the EEOC complaint. In holding that the Title VII claim was properly dismissed we stated:
been filed within 180 days of the promulgation of the July 4, 1972 list, since that promulgation was the unlawful practice upon which the complaint rested. 8 No "continuing violation" existed by virtue of the continued use of the list since no specific instance of discrimination occurred after the promulgation of the list. Vulcan Pioneers, appendix at 55
(W)e must likewise identify precisely the unemployment practice of which plaintiffs complain and separate it from the inevitable, but neutral, consequences of the allegedly discriminatory practice. Plaintiffs complain of defendants' refusal to place them on the hiring roster. Accepting plaintiffs' allegations as true, the roster, because it arises from examinations which have a discriminatory impact, could constitute an unlawful employment practice. Plaintiffs received formal notice that they were not on the eligibility roster on May 3, 1975, the date of its formal promulgation. As of that date at the latest, plaintiffs knew they would not be hired by the Newark police department for the next three years because they were not on the eligibility roster. Plaintiffs, however, did not file within 180 days of May 3, 1975.
Plaintiffs argue that Newark continued to discriminate against them by its use of the eligibility roster. This argument is unpersuasive. First, Newark never used the list prior to plaintiffs' filing charges with the EEOC. Second, even if Newark had used the list, plaintiffs do not allege that Newark would have followed anything but a neutral, non-discriminatory procedure in hiring from the list. Newark's policy was simply to hire in order from the list.
That analysis is applicable here. With regard to the EEOC complaint by Heath in The EEOC complaint by Hood differs from those discussed above since Hood passed the Civil Service examination, and he was placed on the eligibility list for hiring. It is, however, unnecessary for us to discuss whether in this context the use of the list or even its existence represents a ...
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