Lige v. Town of Montclair

• Decision Date: 30 November 1976
• Citation: 367 A.2d 833,72 N.J. 5
• Parties: , 13 Fair Empl.Prac.Cas. (BNA) 1697, 12 Empl. Prac. Dec. P 11,258 Charles S. LIGE and Gilbert H. Francis, Director, Division on Civil Rights, Appellants, v. TOWN OF MONTCLAIR, Mayor and Commissioners, Respondents.
• Court: New Jersey Supreme Court

Page 5

72 N.J. 5

367 A.2d 833, 13 Fair Empl.Prac.Cas. (BNA) 1697,

12 Empl. Prac. Dec. P 11,258

Charles S. LIGE and Gilbert H. Francis, Director, Division

on Civil Rights, Appellants, v. TOWN OF MONTCLAIR, Mayor and Commissioners, Respondents.

Supreme Court of New Jersey.

Argued May 10, 1976.

Decided Nov. 30, 1976.

Stephen Skillman, Asst. Atty. Gen., for appellants (William F. Hyland, Atty. Gen., attorney; Stephen Skillman of counsel; Raymond A. Novel, Deputy Atty. Gen., on the brief).

Margaret C. Poles, Alexandria, Va., a member of the Virginia Bar, for amicus curiae Equal Employment Opportunity Commission (Richard S. Cohen, New Brunswick, attorney).

Joseph C. Dickson, Jr., Upper Montclair, for respondents.

Bernard A. Kuttner, Newark, submitted a brief on behalf of amici curiae Anti-Defamation League of B'nai B'rith and Columbian Coalition, Inc. (Kuttner & Toner, Newark, attorneys).

The opinion of the court was delivered by

SCHREIBER, J.

In a complaint filed with the Division of Civil Rights, Charles S. Lige charged the Town of Montclair with violating the Law Against Discrimination, N.J.S.A. 10:5--1 Et seq., by refusing to hire him as a fireman because he was black. He averred that he had applied for a fireman's position and had failed a written test taken on November 6, 1971. This complaint was amended to allege that the testing and selecting procedures 'are fair in form but discriminatory in operation' and to seek compensatory damages.

A second amended complaint, which incorporated the first amended complaint, added a second count in which the Director of the Division of Civil Rights claimed that the written employment examination had an unlawful discriminatory effect on black applicants and was not properly designed to measure the traits necessary for successful performance Another complaint was filed by the Director against Montclair alleging that on December 29, 1971, nine black police officers were denied promotions as a result of tests which were not professionally validated and had a disparate effect on minority candidates. Therefore, it was asserted the Town violated the Law Against Discrimination.

of the duties of firemen and policemen.¹ He also charged that the selection procedures were 'unvalidated' and had an unlawful potential to discriminate against black applicants.

Both matters were heard at the same time before a designated Hearing Examiner. At the hearing Mr. Lige testified that he had applied for the position of a Montclair fireman after having read a newspaper advertisement that an examination was to be given for police and firemen positions, although there were no openings in the fire department. Although Mr. Lige had graduated from an integrated high school in West Virginia and had also successfully completed one year of college, he failed the written test. Subsequently he found another job. Since no fireman had been added to the force, at the hearing Mr. Lige abandoned any claim for compensatory relief. The Hearing Examiner refused to permit questioning with respect to whether Lige would now or in the future accept a job with the Montclair Fire Department and of what, other than his educational background, his experience and training had consisted.

The Division produced one other witness, Mr. Carmen Cappadona, who had been a field representative for about two and a half years. As a result of his interviews with three screening board members (their function is explained below), he ascertained that in November 1971, applicants for the police and fire departments were given the same written To pass, the applicant had to attain a minimum score of 17 points and be in the top 75% Of those taking the exam. Mr. Cappadona stated that he had been told the test had not been professionally validated. He was not qualified to judge whether the test was job related and did not know if the test could have been validated. The only test he examined was the one given on November 6, 1971.

standardized personnel examination, known as the Wonderlic test.² It consisted of 50 questions testing vocabulary comprehension, computation of mathematical problems, and deductive reasoning and ascertaining items of general knowledge.

If the applicant passed the written examination and the investigation by the detective bureau verified the record data, he would be then interviewed by a screening board which consisted of a psychologist, the town attorney, a college professor, a public school principal and an investment broker. The board had not been given any guidelines to be followed in its screening process or evaluation. The applicant was asked why he wanted to be a policeman or fireman; if a policeman, what he would do if he had to arrest a friend; whether if he were married, the hours of duty would cause any problems; and that personal injuries he had sustained. The board considered the applicant's attitude and demeanor. It graded each applicant and its recommendations were submitted to the Commissioner of Public Safety. The Commissioner, guided by no written standards, exercised an unrestricted discretion in making his choice.

The November 1971 test was taken by 58 men. It was not known who were black and who were white, so Mr. Cappadona eliminated approximately 12 to 15 whom he As of June 1, 1972, there were 104 policemen, of whom 15 were black. The members of the police force had been hired at many different dates between December 1, 1936 and January 1, 1972. The blacks had been selected between May 15, 1940 and January 1, 1972. Since 1966, 9 of the 45 policemen employed had been black.

assumed were Caucasian because of their names, telephoned about 19 and attempted to visit 25 or 26. On this basis he concluded that 19 applicants were black and 39 white. Of the 3 blacks and 26 whites who passed the written test, 2 black and 10 whites did not survive the investigation made by the detective bureau and 2 whites were rejected by the screening board. The remaining 1 black and 6 of the 14 whites were appointed to the police department. Of the remaining white applicants 7 were placed on the police department waiting list. None was appointed to the fire department, but one was placed on the fire department waiting list.

As of April 21, 1972, 3 of the 89 firemen were black. The employment of the 89 had commenced at various times between June 1, 1939 and October 19, 1971. Since 1970, only 3 had been hired, one of whom was black.

In 1970, Montclair had a population of 44,000, of which 12,000 were black. Of Essex County's 930,000 inhabitants, about 280,000 were black.

Mr. Cappadona testified that the police promotion procedures in 1971 (he did not examine the procedures in other years) were generally comparable to the hiring practices. The employment ladder ascended from patrolman and detective to sergeant, lieutenant and captain. Detectives were selected without written examination. Of the 14 detectives, 4 were black. However, to become a police sergeant, lieutenant or captain, a written exam had to be taken. The same screening board interviewed the applicants and made recommendations to the Commissioner who again exercising his unbridled discretion chose the successful promotees.

The 1971 written examinations for promotion were prepared by the Commissioner. The questions were derived from tests used by the National and State Association of Police Chiefs, the Essex County Police Academy and from his own experience. Cappadona was told the questions had not been professionally validated. He had not studied the questions, but understood they were geared to circumstances in Montclair. Examination papers were not signed, but only carried a number so that the applicant's identification remained unknown to the grader. A grade score of 70 was passing. The 1971 written exam for sergeant was failed by the 7 blacks who took it. Thirteen of the 29 whites passed. One black took the test for lieutenant and one for captain. They received the lowest exam grades in their respective groups and were not promoted. In 1969, when 5 promotions were made, 3 were black. No promotions had been made since then until 1971.

Each applicant for a promotion had received job evaluation scores from his supervisors. These ratings, which were also considered in the promotion process, ranged from 58 to 87.5 for the patrolmen and detectives. The black policemen's scores were between 58 and 81.3; 5 exceeded 70.

The five-man screening board's interrogation was directed to indicia of leadership, ability, initiative and good judgment. No blacks were interviewed for a sergeant's position since all had failed the written examination. Each black applicant had been screened for the lieutenant and captain vacancies.

In May 1972 a new Commissioner of Public Safety was chosen. He testified that because of the complaints that had been filed with the Division, Dr. John Seymour, Chairman of the Psychology Department at Montclair State Teachers College, was requested to prepare and submit an examination to be used for hiring purposes. Dr. Seymour proposed the Revised Beta Examination, which then replaced the Wonderlic test. The new examination consisted of 6 tests, all of which were visual, that is, based on pictures and drawings. * * * I think the best qualified men should be the ones appointed and hopefully a good percent of them would be black.

Each applicant was required to pass a physical examination. A new three-person screening committee had been designated to interview the applicants. The committee members had been furnished with specific criteria as guidelines. In 1973, there were 5 police vacancies and the new exam was given under the auspices of the college. The top 15 whose scores ranged down to 70 were selected. Only 2 blacks were in the group and one was hired. The Commissioner expressed his thoughts about selecting new employees:

At the hearing the Town moved to dismiss Lige's complaint because he had suffered no damages,...