The Nat'l Ass'n For the Advancement of Colored People (“naacp”) v. North Hudson Reg'l Fire & Rescue

• Decision Date: 21 September 2010
• Docket Number: Civ. No. 07–1683 (DRD).
• Citation: 742 F.Supp.2d 501
• Court: U.S. District Court — District of New Jersey
• Parties: The NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE (“NAACP”); the Newark Branch, NAACP; the New Jersey State Conference NAACP; Allen Wallace; Lamara Wapples; and Altarik White, Plaintiffs,v.NORTH HUDSON REGIONAL FIRE & RESCUE, a body corporate and politic of the State of New Jersey, Defendant,v.Alex M. Derojas, Randy Vasquez, Carlos Castillo, Orlando Duque, Pablo Claro, Intervenor–Defendants.

742 F.Supp.2d 501

The NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE (“NAACP”); the Newark Branch, NAACP; the New Jersey State Conference NAACP; Allen Wallace; Lamara Wapples; and Altarik White, Plaintiffs,

v.NORTH HUDSON REGIONAL FIRE & RESCUE, a body corporate and politic of the State of New Jersey, Defendant,

v.Alex M. Derojas, Randy Vasquez, Carlos Castillo, Orlando Duque, Pablo Claro, Intervenor–Defendants.

Civ. No. 07–1683 (DRD).

United States District Court, D. New Jersey.

Sept. 21, 2010.

Rabner, Allcorn, Baumgart & Ben–Asher, P.C., by: Eugenie F. Temmler, Esq., Upper Montclair, NJ, Rose & Rose, P.C., by: David L. Rose, Esq., Joshua N. Rose, Esq., Washington, DC, National Association for the Advancement of Colored People, by: Angela Ciccolo, Esq., Anson Asaka, Esq., Baltimore, MD, for Plaintiffs.Chasan, Leyner & Lamparello, P.C., by: Thomas R. Kobin, Esq., Joseph A. Lagana, Esq., Secaucus, NJ, for Defendant.The Corrigan Law Firm, by: David F. Corrigan, Esq., Bradley D. Tishman, Esq., for Intervenor–Defendants.

OPINION

DEBEVOISE, Senior District Judge.

This suit is a disparate impact challenge to a consolidated municipal fire department, the North Hudson Regional Fire and Rescue's (“NHRFR”) use of residency requirements for hiring. Plaintiffs, the National Association for the Advancement of Colored People (“NAACP”), the Newark Branch of the NAACP, the New Jersey State Conference of the NAACP, Allen Wallace, Lamara Wapples, and Altarik White ¹ (collectively, “Plaintiffs”) filed this action on April 10, 2007 against the NHRFR pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1981, and the New Jersey Law Against Discrimination, N.J.S.A. §§ 10:5–1 to –49.² On February 18, 2009, 255 F.R.D. 374, the Court granted the Plaintiffs' motions for class certification and issued a preliminary injunction, barring the NHRFR from hiring from its current eligibility list until it obtained a list that expanded the residency requirement to include residents of nearby Essex and Union Counties and the southern part of Hudson County. The NHRFR filed an interlocutory appeal challenging the portion of this Court's decision that granted the preliminary injunction. On September 21, 2009, while the appeal was pending, the Court granted a motion to intervene filed by six Hispanic firefighter candidates who were on the list from which the injunction prohibited the NHRFR to hire. On March 1, 2010, the Court of Appeals for the Third Circuit sua sponte summarily remanded the matter to the District Court, for further proceedings in light of the Supreme Court's recent decision in Ricci v. DeStefano, ––– U.S. ––––, 129 S.Ct. 2658, 174 L.Ed.2d 490 (2009). On April 23, 2010, the Court vacated the injunction, making a preliminary finding that the residency requirement might further the NHRFR's business goals and that the balance of the equitable factors weighed towards vacating the injunction. On June 29 and 30, 2010, Plaintiffs, Defendants, and Intervenor–Defendants each filed separate motions for summary judgment, pursuant to Federal Rule of Civil Procedure 56. Plaintiffs move for an adjudication of their disparate impact case on the merits, and to permanently enjoin the NHRFR from using the residents-only list for hiring. The NHRFR moves for summary judgment dismissing Plaintiffs' claims for failure to establish causation and because the NHRFR claims to have asserted a valid business necessity defense. Intervenors argue that Ricci provides the Defendants with a defense to the Plaintiffs' disparate impact claim, and seek a judgment that they are entitled to attorneys' fees as a “prevailing party” for their role in the Court's April 23, 2010 vacation of the preliminary injunction. For the reasons described below, the Court will grant the Plaintiffs' motion for summary judgment and grant the Plaintiffs' request for a permanent injunction. Accordingly, the Court will deny the NHRFR's and the Intervenors' motions for summary judgment on the merits of the Plaintiffs' claims. The Court will also deny the Intervenors' motion for the assessment of attorneys' fees against the Plaintiffs for the Intervenors' role in the Court's April 2010 vacation of the preliminary injunction.

I. BACKGROUND

The NHRFR is a consolidated municipal fire department and political subdivision of the State of New Jersey that serves several communities in North Hudson County. The NHRFR was formed in 1998 in accordance with the Consolidated Municipal Services Act, N.J. Stat. Ann. 40:48B–1, et seq. , and is essentially a consolidation of the former fire departments of Guttenberg, North Bergen, Union City, Weehawken and West New York (collectively, the “Member Municipalities”).

In New Jersey, civil service positions such as firefighter are subject to the examination process administered by the New Jersey Department of Personnel (“DOP”). N.J.A.C. 4A:4–1.1. The NHRFR is subject to the New Jersey Civil Service Act, N.J. Stat. Ann. 11A:1–1, et seq. , and the rules and regulations promulgated thereunder. See N.J.A.C. 4A:1–1 et seq. As such, to be hired by the NHRFR, a person must apply for and take an examination administered by the DOP. The DOP controls all aspects of the examination, from scheduling to content and scoring. Recently, the DOP administered the firefighter examination in 1999, 2002, 2003, and 2006. A new examination was recently announced and should generate a new list for hiring in 2011. Those who take the examination at the same time are ranked on a list based on their test scores on the written, and, sometimes, physical examinations. Based on these scores, the DOP creates eligibility lists from which organizations subject to the New Jersey Civil Service Act, such as the NHRFR, may hire candidates in rank order. N.J.A.C. 4A:4–3.1 & 3.2. When the NHRFR needs to fill a vacancy, it offers the position to the highest ranked person(s) on the list provided to it by the DOP. Passing the DOP test, however, is not the only requirement for inclusion on the NHRFR's list. In order to be placed on the NHRFR's list, a candidate must also live in the Member Municipalities at the time he or she took the test. If the applicant does not live in the Member Municipalities at the time of the administration of the examination, her name will not be placed on the NHRFR's list and, thus, the candidate will not be eligible to be hired by the NHRFR, no matter how high her test score.

The Civil Service regulations authorize the use of residency requirements by municipalities and regionals. N.J.A.C. 4A:4–2.11. Consequently, a number of other municipalities, including Atlantic City, Camden, East Orange, Elizabeth, Hoboken, Jersey City, New Brunswick, Newark, Passaic, Paterson, Camden, East Orange, and Trenton, all employ residency requirements.

As of July 2008, according to the NHRFR's EEO–4 form, the NHRFR had 323 full time employees. Of those employees, two were African American, 64 were Hispanic, 255 were white and two identified as other races.³ Of the NHRFR's 323 full time employees, 302 were firefighters. Of these, two were African American, 58 were Hispanic and 240 were white. In 2000, the population of the Member Municipalities was 69.6 percent Hispanic, 22.9 percent white non-Hispanic, and 3.4 percent African American.

The Complaint, filed April 10, 2007 against the NHRFR pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1981, and the New Jersey Law Against Discrimination, N.J.S.A. §§ 10:5–1 to –49, alleges that the NHRFR's geography-based hiring plan causes discrimination against African Americans who reside in the southern part of Hudson County and neighboring Essex and Union counties.

On February 18, 2009, the Court granted the Plaintiffs' motions for class certification and issued a preliminary injunction. The Court certified the class as follows:

African Americans who reside or resided in any municipality in Essex, Union, or Southern Hudson County, and who sought or are seeking employment as firefighters or others in positions for which North Hudson Regional Fire & Rescue hires and who have taken and passed an examination where the Department of Personnel requires such an examination.

(February 18, 2009 Order.)

The Court found that the NHRFR had a likelihood of success on the merits of its Title VII disparate impact discrimination claim and issued the preliminary injunction, barring the NHRFR “from hiring candidates from its current DOP list ⁴ and from commencing hiring candidates until it obtains a list from the DOP that expands the residency requirement to include residents of Hudson, Essex, and Union counties ⁵.” N.A.A.C.P. v. North Hudson, 255 F.R.D. 374, 393 (D.N.J.2009).

The NHRFR filed an interlocutory appeal challenging the portion of this Court's decision that granted the preliminary injunction. On August 12, 2009, Intervenors Alex DeRojas, Alexander Rodriguez, Randy Vasquez, Carlos A. Castillo, and Orlando Duque (“Intervenors”) filed a third party motion to intervene. Each of the Intervenors is a resident of a Member Municipality and is of Hispanic descent. In 2006, after months of preparation, each of the Intervenors sat for the DOP firefighter examination and earned high scores. On the Member Municipalities List, the Intervenors were ranked at 21, 25, 26, 45, 49, and 70, based on their respective test scores, and other factors, such as veteran status (none of the Intervenors are veterans). Since the NHRFR currently needs to hire approximately 35 to 40 new firefighters, the Intervenors argued that it was likely they would have been hired, had the injunction not barred the NHRFR from hiring from the Member Municipalities List.⁶ If the NHRFR were to hire from the Tri-county List, the Intervenors would effectively lose their chance to be hired, since their rankings would be significantly altered; for instance, the candidate who was ranked in 21st place on the Member Municipalities List would be ranked...