McKenna v. Fargo

• Decision Date: 25 May 1978
• Docket Number: Civ. A. No. 74-559.
• Citation: 451 F. Supp. 1355
• Parties: James McKENNA, Robert J. McKenna, Brian Flaherty, John Cinciarelli, and Joseph Porter, Plaintiffs, v. Nicholas FARGO, Director of Public Safety, City of Jersey City, Raymond Gibney, Chief of the Jersey City Fire Department, and Stevens Institute of Technology, Defendants.
• Court: U.S. District Court — District of New Jersey

451 F. Supp. 1355

James McKENNA, Robert J. McKenna, Brian Flaherty, John Cinciarelli, and Joseph Porter, Plaintiffs, v. Nicholas FARGO, Director of Public Safety, City of Jersey City, Raymond Gibney, Chief of the Jersey City Fire Department, and Stevens Institute of Technology, Defendants.

Civ. A. No. 74-559.

United States District Court, D. New Jersey.

May 25, 1978.

COPYRIGHT MATERIAL OMITTED

Robert J. McKenna, pro se.

Marilyn J. Morheuser, American Civil Liberties Union, Newark, N.J., for plaintiffs James McKenna, et al.

Milton Keane & Brady, Jersey City, N.J., for defendant Stevens Institute by Thomas G. Lynch, Jr., Thomas J. Clarke, Jersey City, N.J.

Louis P. Caroselli, Corp. Counsel, Jersey City, N.J., for defendants Fargo and Gibney by Bruce C. Fishelman, Asst. Corp. Counsel, Jersey City, N.J.

OPINION

COOLAHAN, Senior District Judge.

Rarely does a case involve conflicting interests as important and as difficult to reconcile as those in this litigation. The psychological testing which Jersey City uses to screen applicants for its fire department has been challenged by plaintiffs as an invasion of the applicants' constitutional rights. In plaintiffs' view, conditioning employment on psychological testing of questionable validity puts the applicants to a prohibited choice of sacrificing constitutional freedoms to secure prized employment or of looking for work elsewhere. Defendants contend that the condition is a reasonable and necessary one because the task of fighting fires is no ordinary job in difficulty or importance and because success depends critically on the psychological capabilities of firemen.

There is good reason to scrutinize a government requirement which joins the words psychology and testing. Psychology is not yet the science that medicine is and tests are too frequently used like talismanic formulas. The Court has, therefore, carefully reviewed the extensive evidence generated by a long trial and has not arrived lightly at the conclusion that the defendants' psychological testing is constitutional.

PART I

A. Procedural History and Preliminary Rulings

Plaintiffs' civil rights complaint, brought pursuant to 42 U.S.C. § 1983, seeks relief from actions, by persons acting under color of State law or authority, that allegedly subject them to deprivation of their constitutional rights. Accordingly, plaintiffs complain that the psychological evaluation required by Jersey City as a precondition to employment with the Jersey City Fire Department forces them to forego several constitutionally protected freedoms. Plaintiffs request a declaratory judgment pursuant to 28 U.S.C. § 2201 (Supp.1977), injunctive relief, and an award of monetary damages. (Amended Complaint.) Jurisdiction is vested in the Court by 28 U.S.C. §§ 1331, 1343.

This protracted litigation began on April 17, 1974, when plaintiff James McKenna applied to the Court for a temporary restraining order. The Court's dismissal of the complaint for lack of jurisdiction was reversed on appeal. McKenna v. Fargo, 510 F.2d 1179 (3d Cir. 1975). An amended complaint was filed on March 7, 1975, naming five plaintiffs and three defendants. Three of the plaintiffs, James McKenna, Robert McKenna, and Brian Flaherty, have gone through the contested psychological evaluation and hiring procedure. Plaintiffs Joseph Porter and John Cinciarelli applied for employment with the Jersey City Fire Department and were certified as eligible by the Civil Service, but have not taken the physical and psychological examinations. The defendants are Nicholas Fargo, the Jersey City official responsible for appointment and supervision of Jersey City fire fighters, Raymond Gibney, Chief of the Jersey City Fire Department, and Stevens Institute of Technology, a New Jersey corporation under contract to Jersey City since 1966 to conduct psychological evaluations of fire-fighter candidates. (T. 1.09-.11) Defendant Stevens operates the Laboratory of Psychological Studies (LPS), which conducted the testing. Plaintiffs represent themselves only; the Court denied plaintiffs' motion for class action certification for reasons stated in an unpublished opinion filed February 23, 1976. A motion for partial summary judgment in favor of plaintiffs was also denied by letter opinion filed on June 20, 1977.¹

Trial commenced on June 28, 1977, and ended July 28, 1977, generating 16 volumes of transcript. Proposed findings of fact and conclusions of law were received from all parties by mid-February 1978.

During trial, the Court reserved decision on defendants' motion to dismiss the claims of plaintiffs Porter and Cinciarelli on two grounds. Defendants argued, first, that the case was moot as to these plaintiffs since defendants no longer required psychological testing by defendant Stevens, and, second, that these plaintiffs lacked standing to sue since the Civil Service list pursuant to which they had qualified expired several months before commencement of trial. The Court has concluded that the suit is not moot and that plaintiffs Porter and Cinciarelli have standing to sue even though they have not undergone testing by defendant Stevens.

The evidence indicates that Jersey City intends to continue psychological evaluations and that Stevens withdrew its participation only because of this suit. By letter dated November 10, 1976, Stevens asked Jersey City for a hold-harmless agreement to protect it from any liability that might result from its actions as an agent of Jersey City. (DJ-17) The reply from Jersey City to Stevens stated that its legal department recommended that the agreement not be signed "while a Law Suit is pending" and asked, "Can we proceed as we did in the past without the signed agreement." (DJ-18) Stevens refused to continue doing psychological evaluations without the hold-harmless letter. Since Jersey City still required evaluations as a precondition of employment, defendant Fargo directed that another psychological consultant be located. (DJ-12) By letter of January 31, 1977, Jersey City retained the services of a psychiatric institute for psychological evaluation of fire-fighter candidates. (DJ-13) The Court understands from counsel that this arrangement is ongoing and may involve some of the same procedures used by Stevens. (T. 11.5-.16)

As for the expired Civil Service list, counsel for plaintiffs Porter and Cinciarelli indicated on the first day of trial that they would submit applications to qualify for the next Civil Service examination. (T. 1.5-.6) They appear to have done so. (T. 9.11, 2.113-.114) The Court agrees that they are likely to qualify again since they did pass the test the first time. (P. Post-Trial Br. at 2)

It is apparent that defendants' allegedly unconstitutional conduct has been suspended only in the sense that defendant Stevens has temporarily withdrawn because it cannot now obtain a hold-harmless letter. Clearly Jersey City intends to continue psychological testing. If assured of no liability by a judgment from the Court or a hold-harmless agreement, Stevens would in all probability be willing to resume its role in the testing. Such voluntary cessation of allegedly illegal conduct does not make this case moot. See Defunis v. Odegaard, 416 U.S. 312, 318, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974). In Defunis the Supreme Court described a line of decisions as standing for the proposition that unilateral termination by the defendant of the challenged conduct cannot be allowed to make a case moot, for to do so would mean that a defendant could evade review by voluntarily ending the conduct whenever sued, thus defeating the public interest in having the legality of the practices determined. For a case to be moot, a court must be able to conclude that there is a reasonable expectation that the wrong will not be repeated. Id. at 318, 94 S.Ct. 1704. In this case, repetition of the challenged governmental action is certain, based as it is on a definite and continuing policy. See Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 122-125, 94 S.Ct. 1694, 40 L.Ed.2d 1 (1974).

Plaintiffs Porter and Cinciarelli also have standing to sue. Standing to sue exists when the plaintiff himself has suffered some threatened or actual injury resulting from putatively illegal action. See Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). Porter and Cinciarelli were certified as eligible for appointment to the fire-fighter force when suit was brought and are likely to qualify again in the near future. A psychological evaluation was and still is a precondition for employment. The threat of injury to these plaintiffs is not a bare allegation derived from an indirect and improbable chain of events; nor are these plaintiffs' claims for prospective relief based on a threat lacking immediacy or ripeness. Cf. id. at 516, 95 S.Ct. 2197; Roe v. Wade, 410 U.S. 113, 128, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). Thus these plaintiffs have a personal stake in the outcome of this controversy sufficient to confer standing.

One other preliminary matter requires consideration. Defendant Stevens has argued that plaintiff Flaherty's claim must be dismissed for failure to exhaust State administrative remedies. While, as plaintiffs contend, Flaherty's aborted appeal may well have satisfied any exhaustion requirement, Stevens' argument is, in any event, misconceived. Exhaustion of State administrative remedies is not required prior to commencement of an action under 42 U.S.C. § 1983 in federal court. Hochman v. Board of Ed., 534 F.2d 1094 (3d Cir. 1976). There is, therefore, no bar to consideration of the claims raised by plaintiff Flaherty or any of the other plaintiffs.

B. Elements of the LPS Evaluation

Several personality assessment instruments are involved in this suit. To understand the background and operation of defendants' evaluation and hiring procedure, a brief description of the types of instruments used is necessary. In Part II, how the...