Vulcan Pioneers v. NJ DEPT. OF CIV. SERV.

• Decision Date: 03 May 1984
• Docket Number: 77-2054 and 79-184.,Civ. No. 950-73
• Citation: 588 F. Supp. 716
• 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

588 F. Supp. 716

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.

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

United States District Court, D. New Jersey.

May 3, 1984.

Vickie Donaldson, East Orange, N.J., for Vulcan Pioneers, Inc.

Michael L. Prigoff, Lebson & Prigoff, Englewood, N.J., for N.J. Firemen's Benev. Assoc.

Gerald F. George, U.S. Dept. of Justice, Employment Litigation Section, Washington, D.C., for U.S.A.

David I. Fox, Fox & Fox, Newark, N.J., for Newark Firemen's Benev. Assoc.

Matthew Powals, Atlantic City, N.J., for Atlantic City.

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

John Kennedy, Corp. Counsel, Jersey City, N.J., for Jersey City.

Ralph L. Del Luccia, Jr., Paterson, N.J., for City of Paterson.

Harold L. Hamlette, Plainfield, N.J., for City of Plainfield.

John C. Pidgeon, First Asst. Corp. Counsel, Newark, N.J., for City of Newark.

N. Thomas Foster, Camden, N.J., for City of Camden.

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

James Cahill, New Brunswick, N.J., for City of New Brunswick.

William H. Eaton, East Orange, N.J., for City of East Orange.

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

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

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

SAROKIN, District Judge.

This matter presents to the court one of the most difficult and troubling issues facing the judiciary today. Either by court order or consent decree, minorities have been hired as police officers and firefighters in major cities throughout the country. The clear purpose of such orders was and is to affirmatively correct the imbalances which have resulted from a history of discriminatory practices in the hiring and promotion of minorities.

Many of these orders, including the one here at issue, do not provide for the specific procedures to be followed in the event of layoffs. If the dictates of seniority are to govern, then minorities, being the most recently hired, will be laid off and the goals of affirmative action undermined. If, on the other hand, an attempt is made to protect such minority hires, then persons with greater seniority will be compelled to forfeit positions guaranteed by contract and statute. It is the tension between these two alternatives which renders the resolution of this problem so difficult.

The court, however, is convinced that adherence to strict contractual and statutory seniority requirements in determining who shall go and who shall stay cannot be permitted. The affirmative action plan embodied in the consent decree between the parties and the hirings pursuant thereto would be substantially eradicated thereby. The gains contemplated and those achieved would be lost. Furthermore, a municipality or the state would be able to avoid the effect of such an order or decree merely by withholding the funds necessary to effectuate it. This type of unilateral action should not be permitted to thwart a judicial order or to justify the breach of a consent decree.

Affirmative action plans arose out of the recognition that this nation had oppressed its minority citizens, either purposefully or through the operation of more subtle social and economic forces. These plans seek more than to remove the nation's heel from the backs of minorities, but to reach down and to lift up those persons who have been deprived and discriminated against for centuries. The plans recognize the insufficiency of merely removing existing barriers. Affirmative action is necessary in order that historical imbalances and inequities not be prolonged well into the future.

Having recognized that obligation and acted upon it, are we to undo it in the face of economic reductions? Indeed, in hard economic times, it has always been the minorities who have suffered the most. It would be a dreadful step backwards to permit mass layoffs of minorities in light of the progress so recently achieved and so long in coming.

Changes in administration, changes in the composition of the Civil Rights Commission, indeed, changes in the government's position in this very litigation, should not alter the fundamental principles here involved. We cannot and should not retreat from our commitment to right the wrongs of the past. To permit layoffs based solely on seniority denies these principles and mocks the ideals of justice and equality which are the foundation of our Constitution and of the Civil Rights Acts.

By virtue of this determination, certain firefighters and police officers with greater seniority will be required to forfeit their positions. Were it not for the consent decree, these firefighters and police officers would be entitled to retain their positions under existing collective bargaining agreements and New Jersey civil service law. Though not themselves the perpetrators of the wrongs inflicted upon minorities over the years, these senior firefighters are being singled out to suffer the consequences. In effect, they are being required to hand over their jobs and paychecks to someone else. It is inconceivable that they can be asked to do this in the name of the public good, and yet not have the public assume the responsibility therefor. If we need to raze buildings to make way for a highway, to acquire land for a school or to obtain food to feed the poor, we do not simply take it from those who have it. What is involved in such cases is a taking of private property, and the Constitution requires that just compensation be paid.

Such a taking also occurs when the federal government, pursuant to civil rights legislation brings a lawsuit to enforce those laws and enters into a consent decree which adversely affects the contractual and statutory rights of private individuals. In such a situation, it is the federal government which must assume the resulting liability. It would be senseless to impose such liability upon the municipalities involved. Layoffs made in good faith, for economic reasons, may not be prohibited, for to do so would deny cities the right to reduce expenses. Moreover, if these municipalities could afford to pay just compensation, then they could afford to retain the workers. Requiring cities to pay persons whom they laid off because they could not afford to keep them would be ludicrous.

The court is therefore satisfied that the federal government must compensate senior firefighters laid off as a result of the application of the consent decree. The compensation to be paid is outlined below. However, the court recognizes that such compensation is small consolation to those who will nonetheless lose their jobs. Displaced senior firefighters and their families may well ask, "Why us?"

No truly satisfactory answer exists. Their perception of the unfairness visited upon them cannot be dissipated by a discussion of principle or of broad social goals. They cannot be expected to understand why they should pay for what others have wrought or why they should be singled out and forced to make an involuntary contribution to a cause not their own, no matter how worthy that cause may be.

If the analogy to taking for highway purposes is apt, then those whose homes are taken probably pose the same question. Compensation is not adequate reparation for the personal displacement and upset, and the need for a public corridor does not allay their personal loss. Affirmative action is also a highway of sorts. It provides an avenue of hope, a road to equality. However, to ignore the grief and anger of those who fall in its path is to be blind to a poignant reality of our times. One can only hope that those called upon to make the sacrifice will not permit it to escalate the very prejudice which it seeks to undo. They must recognize that affirmative action is likewise small compensation for those who are descendants of slavery and have continued to be the victims of insidious bondage for generations since its abolition.

FACTS

The early procedural history of this matter is traced in detail in the court's opinion in Vulcan Pioneers, Inc. v. New Jersey Department of Civil Service, Civil Action No. 81-281, unpub.op. at 2-5 (D.N.J. October 1, 1982). The matter now before the court arises out of a suit filed by the United States on October 4, 1977. That suit charged that the New Jersey Department of Civil Service and twelve large cities in the state had discriminated against minorities in the hiring and promotion of firefighters. Originally consolidated with a class action brought on behalf of certain individuals who had applied for a position or a promotion in the Newark Fire Department, only the Justice Department action survived the court's February 23, 1979 decision dismissing certain individual plaintiffs who, the court held, had failed to timely file a complaint with the EEOC prior to suit and failed to allege intentional discrimination. See Hood v. New Jersey Department of Civil Service, 680 F.2d 955 (3d Cir.1982) (affirming the decision of the district court). See also Bronze Shields, Inc. v. New Jersey Department of Civil Service, 667 F.2d 1074 (3d Cir.1981) (hiring and promotion of police officers). On May 30, 1980, the parties to the remaining action entered into a Consent Decree which was approved by the court. The Decree notes that defendants denied the existence of the discrimination alleged but provides for an affirmative action plan "to increase substantially the proportion of black and Hispanic personnel on defendant's respective fire departments." ¶ 3. Interim hiring goals ranging from 33% minority, in Elizabeth, to 60% minority in Newark and East Orange, were established, ¶ 3(a)-(d), pending the results...