United States v. State of NJ, Civ. A. No. 950-73

• Court: United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
• Writing for the Court: Emanuel L. Levin, City Solicitor, Atlantic City, N. J., for defendant, City of Atlantic City
• Citation: 473 F. Supp. 1199
• Parties: UNITED STATES of America, Plaintiff, v. STATE OF NEW JERSEY, Ralph P. Shaw, Chief Examiner and Secretary, New Jersey State Civil Service Commission, City of Atlantic City, City of Camden, City of East Orange, City of Elizabeth, City of Hoboken, City of Jersey City, City of New Brunswick, City of Newark, City of Passaic, City of Paterson, City of Plainfield, and City of Trenton, municipal corporations, Defendants.
• Docket Number: 79-184.,Civ. A. No. 950-73
• Decision Date: 13 July 1979

473 F. Supp. 1199

UNITED STATES of America, Plaintiff,
v.
STATE OF NEW JERSEY, Ralph P. Shaw, Chief Examiner and Secretary, New Jersey State Civil Service Commission, City of Atlantic City, City of Camden, City of East Orange, City of Elizabeth, City of Hoboken, City of Jersey City, City of New Brunswick, City of Newark, City of Passaic, City of Paterson, City of Plainfield, and City of Trenton, municipal corporations, Defendants.

Civ. A. Nos. 950-73, 79-184.

United States District Court, D. New Jersey.

July 13, 1979.

473 F. Supp. 1200

Robert J. Del Tufo, U. S. Atty., Newark, N. J., for plaintiff by Gerald F. George, U. S. Dept. of Justice, Washington, D. C.

John J. Degnan, Atty. Gen., N. J., Trenton, N. J., for defendant, State of New Jersey by Peter J. Calderone and M. Kathleen Duncan, Deputy Attys. Gen., Trenton, N. J.

Emanuel L. Levin, City Solicitor, Atlantic City, N. J., for defendant, City of Atlantic City.

Martin F. McKernan, Jr., City Atty., Camden, N. J., for defendant, City of Camden by Laurence E. Rosoff, Asst. City Atty., Camden, N. J.

Hamlet E. Goore, Jr., East Orange, N. J., for defendant, City of East Orange.

Frank P. Trocino, Elizabeth, N. J., for defendant, City of Elizabeth.

Lawrence E. Florio, Hoboken, N. J., for defendant, City of Hoboken.

Louis P. Caroselli, Jersey City, N. J., for defendant, City of Jersey City.

Gilbert Nelson, New Brunswick, N. J., for defendant, City of New Brunswick.

Salvatore Perillo, Newark, N. J., for defendant, City of Newark.

Joseph A. Pojanowski, III, Passaic, N. J., for defendant, City of Passaic.

Henry Ramar, Paterson, N. J., for defendant, City of Paterson.

473 F. Supp. 1201

Frank H. Blatz, Jr., Plainfield, N. J., for defendant, City of Plainfield.

George T. Dougherty, Trenton, N. J., for defendant, City of Trenton.

OPINION

MEANOR, District Judge.

The Attorney General of the United States filed suit on October 4, 1977 to enforce the provisions of Section 707 of the Civil Rights Act of 1964,¹ as amended, 42 U.S.C. § 2000e-6 ("Title VII"),² the nondiscrimination provisions of the State and Local Fiscal Assistance Act of 1972, as amended, 31 U.S.C. § 1242 ("Revenue Sharing Act"),³ and for the purposes of protecting and enforcing rights guaranteed by the Fourteenth Amendment to the Constitution of the United States. The Attorney General alleged that the State of New Jersey, the Chief Examiner for the New Jersey Civil Service Commission, and twelve New Jersey municipalities were engaged in a pattern and practice of unlawful employment discrimination against black and Hispanic persons with respect to hiring and promotion in the fire departments of the defendant municipalities. Subsequently, this action was consolidated with Vulcan Pioneers, Inc. v. New Jersey Department of Civil Service, No. 950-73 (D.N.J. complaint filed June 28, 1973) on February 15, 1978.

On June 22, 1978, this Court entered an order dismissing the portion of the United States' complaint which alleged jurisdiction under Title VII of the Civil Rights Act of 1964, as amended, on the ground that the Attorney General did not have authority to initiate a "pattern or practice" suit pursuant to Title II absent a referral from the Equal Employment Opportunity Commission ("EEOC"). Plaintiff's motion for reconsideration of such order was denied on October 4, 1978. Then, on January 15, 1979, the Attorney General refiled its Title VII complaint, which was thereinafter consolidated with the original complaint.

Now, the defendant cities, Camden and Trenton, move to dismiss plaintiff's complaint due to the failure of the Attorney General to satisfy the requisite EEOC procedures before filing this "pattern or practice" suit pursuant to 42 U.S.C. § 2000e-6(e). In addition, the City of Camden moves for summary judgment on the Revenue Sharing Act count alleging it is not in violation of the provisions thereof.

Jurisdiction is invoked in this Court pursuant to 28 U.S.C. § 1345. Venue is proper under 28 U.S.C. § 1391(b).

I. THE ATTORNEY GENERAL IS UNDER NO OBLIGATION TO FOLLOW EEOC PROCEDURES IN FILING "PATTERN OR PRACTICE" SUITS.

Defendant cities Camden and Trenton contend that the United States has not complied with all the procedural requirements of Title VII in initiating this "pattern or practice" suit. Section 707(e), 42 U.S.C. § 2000e-6(e), after granting the Commission authority to investigate and act on "pattern or practice" charges, mandates that "all such actions shall be conducted in accordance with the procedures set forth in section 2000e-5 § 706 of this title." Since the Attorney General has not adequately satisfied the grievance procedures of section 706 before initiating suit under section 707(a), 42 U.S.C. § 2000e-6(a), i. e., filing a timely charge, giving notice to the state employment agency, investigating a charge, and attempting to conciliate the matter, the court, defendants conclude, must dismiss the matter. Love v. Pullman, 404 U.S. 522, 523, 92 S.Ct. 616, 30 L.Ed.2d 679 (1972); Bell v. Wyeth Laboratories, Inc., 448 F.Supp. 133 (E.D.Pa.1978).

In opposition, plaintiff asserts that, although it has not followed the procedures

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of section 706, section 707(a) places no such procedural requirements upon the Attorney General

Contrary to defendants' contentions, a close reading of the language of sections 706, 707, 42 U.S.C. §§ 2000e-5, 2000e-6, and section 5 of the Reorganization Plan No. 1 of 1978 (which was approved by Congress and became effective July 1, 1978, 43 Fed. Reg. 19807, 28971 (1978)) leads this court to the conclusion that the Attorney General is under no obligation to follow regulations promulgated by the Equal Employment Opportunity Commission.

Section 707(a) of the 1964 Civil Rights Act gave the Attorney General the authority to bring a civil action against any person or group of persons whom he had reasonable cause to believe were engaged in a "pattern or practice" of discrimination.⁴ Such cases were distinguished from those based on individual complaints of discrimination which were handled by the Commission. 42 U.S.C. § 2000e-5.⁵

However, in 1972, Congress significantly broadened the scope of Title VII by extending its coverage to state governments and governmental agencies and augmented the powers of the EEOC by authorizing the Commission to bring civil actions where it was unable to obtain conciliation agreements from employers. Section 707 was amended to transfer to the Commission the Attorney General's authority to initiate "practice or pattern" actions, 42 U.S.C. § 2000e-6(c),⁶ in accordance with the procedures of section 706. 42 U.S.C. § 2006e-6(e);⁷ see H.R.Rep. No. 238, 92nd Cong., 2d Sess. 28, reprinted in 1972 U.S.Code Cong. & Admin.News, p. 2137 at p. 2164.

With regard to private employers, the EEOC had sole authority to bring "pattern

473 F. Supp. 1203

or practice" suits. See 42 U.S.C. §§ 2000e-5(b), 2000e-6(c). It is also clear from the language of section 706(f)⁸ that individual complaints against public employers were to be brought to or initiated by the Commission which was to proceed with its "informal methods of conference conciliation and persuasion."⁹ Only when such methods failed and after referral by the EEOC following procedures prescribed in section 706 did authority shift to the Attorney General. He was then empowered to bring a civil action against public employers with respect to individual complaints

Finally, where the defendant was a public employer, section 707 required such actions to be brought, if at all, by the Attorney General, only upon referral from the Commission following the procedures of section 706. United States v. Fresno Unified School District, 412 F.Supp. 392, 393 (E.D. Cal.1976); United States v. State of South Carolina, 445 F.Supp. 1094, 1111 (D.S.C. 1977) (three judge panel), aff'd mem. sub nom., National Educational Association v. South Carolina, 434 U.S. 1026, 98 S.Ct. 756, 54 L.Ed.2d 775 (1978); Conf.Rep. on H.R. 1746, 92nd Cong., 2d Sess. 4, reprinted in 1972 U.S.Code Cong. & Admin.News 2137 at 2182.

On July 1, 1978, however, section 5 of the Reorganization Plan¹⁰ transferred to the

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Justice Department "full authority over the procedures leading to the filing of pattern or practice suits under Title VII against state and local governments." S.Rep. No. 750, 95th Cong., 2d Sess. 6 (1978). As explained by the House, "the purpose of section 5 of the Reorganization Plan is to restore the certainty of this authority to initiate practice and pattern suits against public employers in the hands of the Attorney General so that he can fully carry out the responsibility in such litigation as Congress intended." H.Rep. No. 1069, 95th Cong., 2d Sess. 8 (1978)

The Reorganization Plan clarifies the Attorney General's authority to initiate "pattern or practice" suits, i. e., under section 707, as well as to sue on valid referrals from the EEOC, i. e., under section 706. See President Carter's submission of Reorganization Plan No. 1 of 1978 to Congress, 124 Cong.Rec. 2141-43 (1978). The function of section 707(e), therefore, which defendants contend applies to the Justice Department via section 707(a), is now more limited.¹¹ Section 707(f) was designed in 1972 to "assimilate procedures for new proceedings brought under section 707 to those now provided for under section 706 so that the Commission may provide an administrative procedure to be the counterpart of the present section 707 action." H.Rep. No. 238, 92d Cong., 2d Sess. 28, reprinted in 1972 U.S.Code Cong. & Admin.News, p. 2137 at 2164 (reporting section 707(b) of H.R.1746). Section 707(e) was thus implemented in 1972 to insure administrative consistency now that the EEOC had "pattern or practice" authority identical to its authority to act upon charges of individual discrimination.

Before the statutory change in 1972, there was no necessity for such administrative consistency since the Attorney General...