Newark Branch, NAACP v. Township of West Orange, Civ. A. No. 89-3236 (AJL).

• Court: United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
• Citation: 786 F. Supp. 408
• Docket Number: Civ. A. No. 89-3236 (AJL).
• Parties: NEWARK BRANCH, NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, New Jersey State Conference, National Association for the Advancement of Colored People and the National Association for the Advancement of Colored People, Plaintiffs v. TOWNSHIP OF WEST ORANGE, NEW JERSEY, Defendant.
• Decision Date: 14 February 1992

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NEWARK BRANCH, NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, New Jersey State Conference, National Association for the Advancement of Colored People and the National Association for the Advancement of Colored People, Plaintiffs
v.
TOWNSHIP OF WEST ORANGE, NEW JERSEY, Defendant.

Civ. A. No. 89-3236 (AJL).

United States District Court, D. New Jersey.

February 14, 1992.

786 F. Supp. 409

COPYRIGHT MATERIAL OMITTED

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Jonathan M. Hyman, Rutgers Constitutional Litigation Clinic, Newark, N.J., Everald F. Thompson, Baltimore, Md. and David L. Rose, Washington, D.C., for plaintiffs

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Matthew J. Scola, West Orange, N.J., for defendant Tp. of West Orange.

David I. Fox, Fox and Fox, Newark, N.J., for amicus curiae, West Orange Residents First.

OPINION

LECHNER, District Judge.

This lawsuit was commenced by the Newark, New Jersey Branch of the National Association for the Advancement of Colored People, New Jersey State Conference, National Association for the Advancement, and the National Association for the Advancement of Colored People (collectively, the "NAACP") against the Township of West Orange ("West Orange") on 31 July 1989 under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq ("Title VII").

The NAACP alleges in its complaint (the "Complaint") that the policy of West Orange giving preference in municipal hiring to West Orange residents violates Title VII. On 10 May 1990 the NAACP and West Orange signed a consent decree (the "Consent Decree") which provides that West Orange would not base its hiring decisions on town residency, that West Orange would attempt to recruit African-Americans for municipal employment, and that West Orange would cease use of civil service lists (the "Eligible Residents List") created while the residency preference was in effect. The Consent Decree provided for continuing jurisdiction by this court over the enforcement of the Consent Decree for five years.

Currently before the court is the motion brought by West Orange to vacate the Consent Decree and for leave to hire additional employees from the Eligible Residents List.¹ Joining in the motion as amicus curiae are twenty-three individuals² (the "Residents First") who are on the Eligible Residents List for appointment to police officer and fire fighter positions in West Orange. Also before the court is the motion for summary judgment by the NAACP³ and the cross-motion for summary judgment by West Orange which have been pending since 11 December 1989

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when they were argued.⁴ Decisions for the NAACP summary judgment motion and the West Orange cross-motion were reserved because immediately following oral argument the parties expressed an intent to settle the case and so informed the Court. As a result, the Consent Decree was entered and the motion and the cross-motion for summary judgment were mooted until the filing of this motion to vacate the Consent Decree.⁵ For the reasons which follow, the motion to vacate the Consent Decree and for leave to hire additional fire fighters from the Eligible Residents List is denied. If for any reason the Consent Decree is set aside, the NAACP motion for summary judgment is granted and the West Orange cross-motion for summary judgment is denied

Facts

The NAACP is a "voluntary association committed to the improvement of the social and economic status of minority groups, the elimination of racial prejudice and discrimination, and the attainment of civil rights and equal opportunities for its members and other persons." Complaint, ¶ 3. It is composed of local branches and other constituent bodies and its membership is open to all persons sharing its goals. Jones Dec., ¶ 2. The Newark Branch of the NAACP has over two thousand five hundred members who live in or around Newark, New Jersey, the great majority of whom are African-American. Id., ¶ 4.

West Orange is a township established under the laws of New Jersey and is a political subdivision of New Jersey. Complaint, ¶ 5. West Orange adjoins Orange and is within commuting distance of East Orange, Newark and Jersey City, all of which have a higher percentage of African-Americans than West Orange. NAACP 12G Statement, ¶ 7; Summary Judgment Opp. Brief, 1. The adjoining municipalities of Newark, Orange and East Orange all have hiring policies similar to those adopted by West Orange.⁶ Id., Ex. A.

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The Complaint alleges West Orange has 39,510 residents, of whom 2.4 percent are African-American. Id., ¶ 6. It alleges West Orange employs three hundred fourteen full-time employees, of whom two, or .63 percent, are African-American, in addition to ninety-three part-time employees of whom none are African-American. Id., ¶ 7. West Orange states it employs three hundred fifteen full-time and one hundred fifty nine part-time employees, including two full-time African-American employees and thirteen African-American part-time workers. Summary Judgment Opp. Brief, 2. In February 1990 around two to three percent of municipal employees were African-Americans. Transcript of 13 February 1990 Meeting, 9. At that same time, thirty percent of the people employed in the private sector of West Orange consisted of African-Americans.⁷ Id.

Among the membership of the NAACP are fifty-one African-Americans who have expressed interest, through a questionnaire, in municipal employment in the police and fire departments or other positions available in West Orange. Attachment 4. There are also at least eighteen members of the NAACP who would apply for various municipal employment opportunities if residency was not a factor. Attachment 9. Additionally, at least three members have applied for positions in West Orange or would have applied if permitted to do so. Watson Dec., ¶ 3; Jenkins Dec., ¶ 6; Wise Dec., ¶ 5. All of these individuals reside outside West Orange, but are within commuting distance.

Tyrone Jenkins ("Jenkins") is an African-American in his mid-thirties, physically fit and interested in a fire fighter or police position in West Orange. Jenkins Dec., ¶ 2. He took the written and physical examination for fire fighters and scored 96.770 and was ranked number twenty-eight on the 28 August 1984 certified list for fire fighters in Newark. Id., ¶ 4. He first applied only in Newark as he was told he could only apply in the town in which he resided. Id., ¶ 5. He has nonetheless applied to West Orange for a fire fighter position. Id., ¶ 6.

Timothy Wise ("Wise") is an African-American in his mid-twenties who is physically fit. Wise Dec., ¶¶ 2-3. Like Jenkins, Wise took the fire fighter exam in Newark, New Jersey. Id., ¶ 4. He scored 95.470 and was ranked number thirty-eight on the list in Newark. Id. Wise was told he was eligible to apply only within Newark. Id., ¶ 5. Wise would apply for a fire fighter position in West Orange if residency was not a controlling factor. Id.

Adrienne Watson ("Watson") lives in Jersey City, is an African-American and is a member of the NAACP. Watson Dec., ¶ 1. She has five years experience as a secretary. Id., ¶ 2. She applied for a position as an administrative secretary in West Orange which was announced in a Job Opportunities Bulletin published by the New Jersey Department of Personnel. Id., ¶ 3.

The New Jersey Act Concerning Residency Requirements for Municipal and County Employees, N.J.S.A. §§ 40A:9 and 40A:14 et seq., permits, but does not require, the governing body of a municipality or county to impose a residency requirement on public employment. The pertinent New Jersey statute provides:

Unless otherwise provided by law, the governing body of any local unit may by resolution or ordinance, as appropriate, require, subject to the provisions of this act, all officers and employees employed by the local unit after the effective date of this act to be bona fide residents therein. A bona fide resident for the purpose of this act is a person having a permanent domicile within the local unit and one which has not been adopted with the intention of again taking up or claiming a previous residence acquired outside of the local unit's boundaries.

N.J.S.A. 40A:9-1.3. It further permits a municipality or county to "limit the eligibility of applicants for positions and employments in the classified service of such local unit to residents of that local unit." N.J.S.A. 40A:9-1.4.

In addition, the statute mandates, if an applicant is not required to be a resident,

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the municipality or county "shall require ... that all nonresidents subsequently appointed to positions or employments shall become bona fide residents of the local unit within 1 year of their appointment...." N.J.S.A. 40A:9-1.5. The statute further provides if a municipality or county which has adopted residency requirements is unable to recruit a sufficient amount of qualified residents it may receive applications from nonresidents. N.J.S.A. 40A:9-1.6

New Jersey has enacted separate statutes with respect to police and fire department employees. Section 40A:14-123.1a, which governs police department employees, provides, in pertinent part:

a. In any municipality of this State, before any person shall be appointed as a member of the police department and force, the appointing authority may classify all the duly qualified applicants for the position or positions to be filled in the following classes:

I. Residents of the municipality.

* * * * * *

b. In any municipality which classifies qualified applicants pursuant to subsection a. of this section, the appointing authority shall first appoint all those in Class I and then those in each succeeding class in the order above listed, and shall appoint a person or persons in any such class only to a vacancy or vacancies remaining after all qualified applicants in the preceding class or classes have been appointed or have declined an offer of appointment.

N.J.S.A. 40A:14:123.1a.

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