United States v. State of NJ

• Decision Date: 26 July 1985
• Docket Number: Civ. A. No. 950-73,77-2054 and 79-184.
• Citation: 614 F. Supp. 387
• Parties: UNITED STATES of America, Plaintiff, v. STATE OF NEW JERSEY, et al., Defendants, and Robert M. Sheridan, et al., Intervenors.
• Court: U.S. District Court — District of New Jersey

614 F. Supp. 387

UNITED STATES of America, Plaintiff, v. STATE OF NEW JERSEY, et al., Defendants, and Robert M. Sheridan, et al., Intervenors.

Civ. A. Nos. 950-73, 77-2054 and 79-184.

United States District Court, D. New Jersey.

July 26, 1985.

Gerald F. George, U.S. Dept. of Justice, Civil Rights Div., Washington, D.C., for plaintiff.

Mark Fleming, Deputy Atty. Gen., Trenton, N.J., for State of N.J.

Thomas Calligy, Hoboken, N.J., for Hoboken.

Schneider, Cohen & Solomon by David Grossman, Jersey City, N.J., for intervenors Sheridan, et al.

OPINION

SAROKIN, District Judge.

The court is, once again, confronted with the claim of persons who have taken and passed a civil service examination for firefighter and now stand on the brink of appointment. The court reiterates its recognition of the frustration and the sense of unfairness experienced by persons who may be denied an opportunity because of the need to protect the rights of minorities.

However, the need for affirmative action has not diminished, nor does this court perceive any change in the applicable law which would authorize it to retreat from the conditions of the consent decree entered in this matter and the principles which underly it.

This court stated in an earlier opinion:

This case and others involving the same issues represent a turning point in our society. We cannot either through legislation or court edict, drive bias and prejudice from the hearts and minds of the people. We can, however, condemn such bias and prejudice and prohibit them from denying constitutional rights and equality to any of our citizens. Affirmative action plans, with all of their imperfections, deficiencies and weaknesses, are a symbol of this country's willingness to correct the inequities of the past and to express a commitment to their elimination in the future.

Vulcan Pioneers, Inc. v. New Jersey Department of Civil Service, 588 F.Supp. 716, 727 (D.N.J.1984). The foregoing continues to be the view of this court.

In this particular case, those affected will be required to take the test again and, therefore, they will have the same opportunity to be appointed as they now have. Minorities, on the other hand, will now be afforded an equal opportunity denied to them in the past. Any interim steps which deny or minimize that opportunity should be and must be rejected by the court in the absence of a clear emergency warranting such action.

Twenty-one candidates for the position of firefighter in Hoboken, New Jersey here move to intervene and for preliminary injunctive relief against the expiration of an eligibility list for such position on June 8, 1985. Plaintiff United States opposes the latter application, and has heretofore refused permission either to hire intervenors, or to extend the life of the eligibility list upon which intervenors are numbers twenty through forty. Intervenors¹ contend that plaintiff's position violates Title VII of the Civil Rights Act of 1964, as well as their constitutional rights, and that it will have serious adverse consequences for the City of Hoboken. For the reasons set forth below, intervenors' application for relief is denied.

By Consent Decree entered into on May 30, 1980, plaintiff United States of America and defendants, including Hoboken, agreed that defendants would

... refrain from engaging in any act or practice which has the purpose or effect of unlawfully discriminating against any black or Hispanic employee of, or any black or Hispanic applicant or potential applicant for employment with their respective fire departments because of such individual's race, color, or national origin. Specifically, the defendants shall not discriminate against any individual in hiring, assignment, training, discipline, promotion or discharge because of race, color, or national origin.

Consent Decree ¶ 1. To this end, the defendant municipalities were barred from making appointments to the rank of firefighter from certain 1978 and 1979 examination lists, except where in accord with affirmative action goals, or where necessitated by emergency. ¶ 2. For Hoboken, "the goal shall be to fill at least forty (40) percent of all vacancies with qualified minority applicants." ¶ 3(b). The defendant State of New Jersey was to establish new firefighter eligibility lists based upon state statutes and regulations "or such other less restrictive and nondiscriminatory standards as may subsequently be adopted." ¶ 4(a). A written examination could be "used solely on a qualifying basis" with job-related physical performance or other selection devices utilized for selection. ¶ 4(b). "The cut-off score on the written examination, the weights assigned to ranking devices and the duration of eligibility lists" were to be "set at a point consistent with assuring qualified candidates and with facilitating compliance with the affirmative action goals ...." Ibid. In the meantime, New Jersey was to perform a new validity study, the results of which were to be utilized in developing a new examination, to be approved by plaintiff. ¶ 4.

Additionally, the defendant cities were to step up recruitment and training of minority candidates, with the help of the state. ¶ 5(a). All defendants were to provide racial breakdowns of test applicants, ¶ 5(b)(1), scores, ¶ 5(b)(2), and the resulting eligibility lists. ¶ 5(b)(3). Paragraph six of the Consent Decree then provides:

Should plaintiff United States, at any stage of the selection process set forth in paragraphs 4 and 5 above, or thereafter, determine that a city will be unable to meet its interim hiring goals based upon that selection process, the plaintiff shall expeditiously notify the affected defendants, and the affected parties including the State shall meet within a reasonable period to discuss alternative methods by which the affected fire departments could meet its goal. If the parties fail to resolve the matter, any affected party may move the Court for resolution. If an objection is made by plaintiff, no persons shall be certified for appointment pending resolution by the court.

¶ 6.

Intervenors herein took an October, 1982 examination for the position of firefighter. Such examination caused concern on the part of the plaintiff United States. Indeed, in a January 21, 1983 letter, counsel for the United States noted that such examination, which was administered in Hoboken, Trenton, New Brunswick, Jersey City and Camden, "eliminates minorities at a rate at least twice that of whites. As a result, the percentage of minorities eligible for the next step in the selection process is quite low, and well below the goals for these cities in the consent decree and well below the applicant flow." Aff. of Gerald F. George, Exh. 10 (letter dated 1/21/83).² Though plaintiff thus found the evidence "not adequate to support use of the examination," it did not insist on administration of a new test. Counsel wrote:

The new eligibility lists will be in effect for only one year, and there may well be little or no hiring by these cities in that time period. While the composition of the lists as a whole will certainly be inadequate in terms of the obligations of the consent decree, the composition of the first few positions, which will be determined by veteran preference and physical agility test score, may be sufficient for the amount of hiring actually contemplated. Accordingly, administering a new examination at this point might be an expensive and impractical exercise.

Ibid. No appointments were made during the first year of the list; accordingly, on August 19, 1983, plaintiff indicated that it "would certainly consider extension of the list for a second year," particularly since there were "six minorities among the first fifteen names on the list." George Aff., Exh. 10. On December 30, 1983, plaintiff, in fact, agreed to such extension "if no more than ten appointments were to be made." Id. Notwithstanding this caveat, plaintiff approved nineteen appointments in late 1984; seven of the nineteen appointees were black or Hispanic. George Aff. ¶ 9.

On January 28, 1984, the Director of Public Safety of Hoboken, James W. Giordano, requested that the eligibility list, denominated M0018D, be extended an additional year, to June 8, 1986. Director Giordano stated that "the first 20 eligible candidates have contacted me and they informed me that they are interested in this position as Hoboken firefighters now and in the near future." George Aff., Exh. 8. Plaintiff responded that, while it had approved a one-year extension to June 8, 1985, a further extension ought to "wait until early 1985." George Aff., Exh. 9. However, despite pleas from the City Administrator, George Aff., Exh. 2, the Director of Public Safety, id., Exh. 3, and the Fire Chief, id., Exh. 4, plaintiff rejected such request, by letter dated May 31, 1985. Counsel wrote:

We have received the letters of Mr. Chius, Director Giordano and Chief Houn concerning the City's request for the appointment of additional firefighters.

The letters primarily set out the concern of City officials that sufficient personnel be appointed and trained before February 1, 1986, to assure an experienced firefighting force when several persons retire on that date. While we are not unsympathetic to the concern, we question the need to hire prior to June, 1985, twenty persons for whom vacancies will not exist until February 1986, where that hiring appears inconsistent with the City's obligations under the Consent Decree. In particular, we question that need when the City left unfilled for several months in 1984-85 at least eleven vacancies at a time when it was free to use the list. We also note that the City expressly stated in its April 3, 1985, quarterly report that it had no intention of filling any firefighter vacancies within the ensuing sixty (60) days.

We have expressed from the outset concern over the validity of the examination used by the State for this eligibility list, and w

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