Vulcan Pioneers v. NJ DEPT. OF CIVIL SERVICE, Civ. No. 950-73
Decision Date | 24 May 1984 |
Docket Number | Civ. No. 950-73,77-2054 and 79-184. |
Citation | 588 F. Supp. 727 |
Parties | VULCAN PIONEERS, INC., et al., Plaintiffs, v. NEW JERSEY DEPARTMENT OF CIVIL SERVICE, et al., Defendants. UNITED STATES of America, Plaintiff, v. STATE OF NEW JERSEY, et al., Defendants. UNITED STATES of America, Plaintiff, v. STATE OF NEW JERSEY, et al., Defendants. VULCAN PIONEERS OF NEW JERSEY, et al., Plaintiffs, v. CITY OF NEWARK, et al., Defendants. |
Court | U.S. District Court — District of New Jersey |
Vickie Donaldson, East Orange, N.J., for plaintiff Vulcan Pioneers, Inc.
Gerald F. George, U.S. Dept. of Justice, Employment Litigation Section, Washington, D.C., for plaintiff United States.
William H. Eaton, East Orange, N.J., for City of East Orange, N.J.
David I. Fox, Fox & Fox, Newark, N.J., for Newark Firemen's Benevolent Association.
The court here confronts issues no less difficult than those discussed in the court's recent opinion concerning the layoffs of firefighters. In this case, the legitimate interests of affirmative action and seniority clash in the arena of promotions. Though positions already held are not at issue as in the layoff context, the problem of who shall be promoted nonetheless involves recognized expectations to attain such positions. It therefore implicates the same fundamental concerns as were earlier addressed by the court.
The parties are before the court pursuant to this paragraph.
In East Orange, an eligibility list for promotion to the rank of Fire Captain was promulgated on October 18, 1979. This list, denominated PM 1476, was to expire on October 17, 1981. However, the lifetime of PM 1476 was extended by one year when, on March 24, 1981, the Mayor of East Orange announced "a freeze on all departments as to hiring, promotions and expenditures." The Mayor's Executive Order was held by the New Jersey Civil Service Commission to satisfy the requirements of N.J.S.A. 11:22-34.1 which provides for the one-year extension of eligibility lists when a municipality "has adopted an ordinance, resolution, rule or regulation temporarily barring promotions for economic reasons ..." The Commission ruled that an executive order fell within the "ordinance, resolution, rule or regulation" language of the statute and that the promotions and hiring in the East Orange Fire Department were, in fact, frozen notwithstanding certain emergency appointments. In any event, PM 1476 eventually resulted in the appointment of eight new fire captains. All eight were white; the best positioned black on the list was ranked twentieth.
On March 25, 1982 a new Fire Captain eligibility list was promulgated. This list, PM 0661C, includes thirty-five persons, of whom three — numbers 26, 29 and 31 — are black. After the Mayor of East Orange announced another freeze, on December 1, 1982, this list was extended and is now set to expire on March 24, 1985. It is this extension to which plaintiff United States now objects. Neither the City of East Orange nor the State of New Jersey have opposed the motion of the United States for supplemental relief in the form of an injunction against the extension of PM 0661C beyond October 18, 1984. The motion is, however, strongly contested by certain white firefighters who have moved to intervene in this matter.
Plaintiff's objection to the extension of PM 0661C is based upon facts to which the City of East Orange has stipulated. Thus, the composition of the East Orange firefighter force is 31.8% black; however, in the ranks above firefighter only one of forty-six officers is black. Stipulation ¶¶ 1, 2. Plaintiff claims that, as opposed to the numbers of blacks that appeared on PM 1476 and PM 0661C, a new list would result in substantial black promotions; thus it states that thirty-three of East Orange's forty-two black firefighters will be eligible to take the examination, now scheduled for May 31, 1984, from which such list will be drawn.1 If, however, PM 0661C is extended, East Orange estimates that as many as ten additional persons, all white, may be appointed prior to the expiration of the list.2 Hence, plaintiff claims, an extension of PM 0661C will have "a substantial adverse effect on the eligibility for and likelihood of the promotion of black firefighters to the now virtually all white supervisory ranks of the East Orange Fire Department." Plaintiff's Memorandum at 5.
More controversial is the second prong of plaintiff's argument. Noting that the Mayor's Executive Order of December 1, 1982 did not apply to "those expenditures which are essential for the delivery of services to our citizens," which "emergency expenditures" required clearance by the Mayor's office, plaintiff contends that, in fact, no freeze existed. Promotions, it argues, have not been delayed, nor have there been markedly fewer promotions than in a normal two-year period — there have been six, instead of the two-year average of eight. Therefore, the government concludes, "there would be no inequity to those on the list if the extension were terminated." Plaintiff's Memorandum at 4.
Intervenors dispute this. Claiming a disruption of the legitimate rights of senior employees, they argue that promotions did not occur in average quantities or as per normal promotional procedures because of what was, in fact, a freeze. In particular, they argue that not six, but four promotions occurred from March 25, 1982 to December 31, 1983: the other two were idiosyncratic, one from a prior list and the other due to a death in the line of duty. Citing layoffs, demotions, and the elimination of positions, intervenors contend that promotions during this time period were characterized by long delays. Thus, they conclude, it would be unfair to those listed on PM 0661C if this list were suddenly rendered inoperative; they have been waiting on the list for a long time, and would have been promoted but for the economic hardship faced by East Orange, and the ensuing hiring freeze. Minority firefighters, on the other hand, though forced to wait an additional period of time for the possibility of promotion, would be thus inconvenienced far less than their senior white counterparts.
Defendant East Orange has responded by memorandum and affidavit, arguing that no promotion has been postponed because of the freeze except for one that required the Board of Fire Commissioners to decide upon the proper number of deputy chiefs. East Orange adds that it considered intervenors' alternative version of the facts prior to submitting the stipulation entered into between it and the plaintiff United States. The government has also responded by noting that the delays, layoffs, etc. to which intervenors point as evidence of a freeze occurred prior to October 18, 1982, during the continuing term of PM 1476. Hence, any effect upon firefighters awaiting promotion on PM 0661C was, until that date, due to the extended operation of PM 1476, and not to a freeze. The government contends that since October 18, 1982, no freeze has, in fact, been operative.
Intervenors' opposition to plaintiff's motion has two bases. First, they argue that "plaintiff's objection is not provided for procedurally within the terms of the Consent Decree," because the United States is nowhere given "the authority to object to the extension of an eligibility list." Intervenors' Memorandum at 2-3. This position is completely without merit: the Decree provides for plaintiff to object to the use of a particular list during the development of such list, Consent Decree ¶ 7, "or thereafter." Consent Decree ¶ 8. The Decree undoubtedly contemplates that the government would be able to object where, as here, the process of combatting discrimination depends not merely upon the development of particular lists, but upon which of two alternative lists are used. Therefore, the court finds plaintiff's objection well within its rights under paragraph 8 of the Decree. Nor is intervenors' complaint that plaintiff's objection is unreasonably late a fair one: the evidence demonstrates that plaintiff moved with reasonable, if not immediate, haste to confront this problem,...
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