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March 20, 1980

Wilbur J. McNEIL, and William Jones, Plaintiffs,
Richard C. McDONOUGH et als., Defendants

The opinion of the court was delivered by: BIUNNO

This is a case in which the claims made involve allegations of racial discrimination in employment and employment opportunities. Trial was before the court without a jury. As provided by F.R.Civ.P. 52, this opinion contains the findings of fact and conclusions of law contemplated by the Rule.

 The claims are asserted on a number of federal grounds with corresponding authority for jurisdiction, as follows:

Under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, jurisdiction being under 28 U.S.C. § 1343 or 42 U.S.C. § 2000e-5(f)(3), or both;
Under 42 U.S.C. §§ 1982, 1983 and 1988, with jurisdiction under 28 U.S.C. § 1343;
Under Amendment 14 of the U.S. Constitution with jurisdiction under 28 U.S.C. § 1331(a).

 Different prerequisites, time limits or statutes of limitation apply to the different grounds, and different elements and defenses apply, as discussed hereafter.

 The individual defendants originally named were formerly in office as Director of the Division of Alcoholic Beverage Control in the Department of Law and Public Safety of the State of New Jersey. The present Director in office, Joseph H. Lerner, was impleaded by agreement of the parties as though originally named as a defendant and as though his answer were the same as the others. The court notes that the method provided for by F.R.Civ.P. 25(d)(2), i. e., describing the public officer by title rather than by name, was not used. The final defendant is the Division of Alcoholic Beverage Control itself.

 The plaintiffs, Wilbur J. McNeil and William Jones work in the Division.

 Before launching into an analysis of the law and testimony, it will be useful background to touch on the history of the Division itself.

 The Division is the current administrative successor to the N.J. State Department of Alcoholic Beverage Control, established by N.J.P.L.1933, c. 436 as a consequence of the adoption of Amendment 21, which in turn repealed Amendment 14 (Prohibition) of the U.S. Constitution. The history of regulation and control of alcoholic beverages, however, goes back much farther than that, perhaps as far back as Allinson's Laws. (1738-1739) Gaine v. Burnett, 122 N.J.L. 39, 4 A.2d 37 (S. Ct.1939) reviews this long history before federal Prohibition and Repeal.

 The 1933 statute followed an exhaustive study and report by a committee, established by joint resolution of the Legislature adopted October 9, 1933, and largely followed the draft statute proposed by the report.

 As was observed in an earlier study,

Study of State Administrative Agencies in New Jersey, by Clark Crane Vogel under the supervision of Nathan L. Jacobs (University of Newark, May, 1941), at p.44.

 With the enactment of the Revised Statutes of 1937, the statute became N.J.R.S. Title 33. The original statute, by § 3 (N.J.R.S. 33:1-3) not only created the Department, but itself named the first commissioner, D. Frederick Burnett, Esq., and fixed his term and salary. Mr. Burnett had served as counsel to the study committee (see Study supra, p. 43 at n.9). It is a matter of common knowledge among the State's bench and bar that Mr. Burnett was not only the architect of the statute but that as its first commissioner, and with the able assistance of his Chief Deputy Commissioner and Counsel, Nathan L. Jacobs (until lately Associate Justice of the Supreme Court of New Jersey) set the level of high professional performance called for by the command that he do all things "designed to insure the fair, impartial, stringent and comprehensive administration" of the law. N.J.P.L. 1933, c. 436, § 20; N.J.R.S. 33:1-23.

 The structure of the department as created did not contemplate that it should itself be the sole vehicle for control and administration. Rather, a large measure of "home rule" was delegated to local municipalities with the Department serving as supervisor. The commissioner was assigned the function of issuing certain types of licenses (e.g., for manufacture, wholesale, plenary retail transit, transportation and public warehouse), N.J.R.S. 33:1-18, while local municipal boards or bodies were authorized to issue all other kinds of license, mainly various types of retail licenses which are far more numerous, N.J.R.S. 33:1-19.

 With this municipal licensing authority there was imposed a set of corresponding administrative enforcement duties, N.J.R.S. 33:1-24, including the suspension or revocation of municipally issued licenses, N.J.R.S. 33:1-31, subject to appeal to the commissioner. As of June 30, 1938, a total of 3,943 licenses had been issued, Study supra, at p. 51, most of which doubtless were municipally issued retail licenses.

 The structure, then, with the large measure of "home rule" for retail licenses, implied that the Department was intended to be a small, highly organized and efficient unit, directly controlling the manufacture, wholesaling and distribution aspects, while auditing the municipal functions through appeal and otherwise. *fn1"

 With the adoption of the 1947 N.J. Constitution, it was required that all executive branch units, including departments, be allocated by law among and within not more than 20 principal departments, N.J.Const., 1947, Art.5, § 4, par.1. Under current law the former Department has been constituted as a division of the Department of Law and Public Safety, headed by the Attorney General, N.J.R.S. 52:17B-15, and the powers and duties of the former commissioner transferred to the Director of the Division, N.J.R.S. 52:17B-17.

 Given this background and pattern, it is no surprise that the number of budgeted positions in the division is only about 150, a small number for a unit of State government charged with the important functions and duties of this one. Some of the positions are clerical force, which come under Civil Service (NJRS Title 11), by reason of N.J.R.S. 33:1-4c. All other State employees appointed by the director do not come within Civil Service. These fall into a number of categories:

. . . such number of inspectors, investigators and executive assistants as the director deems necessary; they are removable at will, except that after 3 years employment they shall serve during good behavior and shall not be removed except for cause; Idem., par. d.
. . . temporarily employed experts and specialists for specified service;
. . . counsel and other legal assistants.

 Of the total staff, the evidence is that there are 80 to 90 employees in the Enforcement Bureau, these being divided into 5 sections: wholesale, retail, undercover, front and administrative. McNeil has served in both the undercover and retail sections and is now assigned to wholesale. Jones has been continuously assigned to undercover.

 Although the original commissioner was named by the Legislature, it may no longer elect or appoint any executive, administrative or judicial officer except the State Auditor, N.J.Const., 1947, Art. 4, § 5 par. 5. The director of the Division is now appointed by the Governor, with the advice and consent of the Senate, N.J.R.S. 52:17B-16. The office was made full-time by N.J.P.L. 1970, c. 222, effective October 16, 1970, Idem. (pocket part).

 Thus, the Director of the division is today a state officer appointed by the Governor and confirmed by the Senate, whose immediate head is the Attorney-General of New Jersey, who in turn, as head of the Department of Law and Public Safety, is a member of the Governor's cabinet. In this capacity he serves an administrative state function separate from his duties and powers as chief law enforcement officer for the State as a constitutional officer, without regard to departmental structure or administrative duties. See N.J.Const. 1947, Art. 5, § 4, par. 1, 2 and 3; also State v. Winne, 12 N.J. 152, 96 A.2d 63 (1953); Board etc. Lehigh Valley R. Co., 106 N.J.L. 411, 149 A. 263 (E & A, 1929).

 Limitations Aspects

 There is no federal statute of limitations for suits under the Civil Rights Act, 42 U.S.C. § 1981 et seq. The decisions widely recognize that in this circumstance the federal courts are to apply that period of limitation applicable under State law had a like action been brought under State law. In fact, the conformity provisions of 42 U.S.C. § 1988 contemplate that this course be followed.

 Inspection of the reported cases dealing with the selection of the proper State limitation period show wide variations of scope. As observed recently in Davis v. U. S. Steel Supply, 581 F.2d 335 (CA3, 1978) the selection involves a process of analyzing each complaint, and each aspect of a particular complaint, to ascertain the fundamental nature of each claim since different time periods may apply to different claims or complaints.

 In this case, both plaintiffs have been and are still employees of the State of New Jersey, albeit in its unclassified service rather than under Civil Service, and complain of invidious discrimination grounded on race or color in the alleged failure to promote each of them. Since each has 3 years' service, neither may be discharged without cause under present local statute.

 Accordingly, the claim may be read as asserting that the employment relation, which is contractual in nature, is to be regarded as though it contained a provision that the employer would not act contrary to applicable law. Such a reading analogizes the claim as one for breach of contract, to which New Jersey's 6-year statute of limitations, N.J.S. 2A:14-1 would apply. That statute will be taken as governing all claims encompassed by 42 U.S.C. § 1981, et seq., as well as claims said to arise directly under the U.S. Constitution, in respect to which the same underlying considerations apply.

 Plaintiff McNeil filed his complaint on May 28, 1976, and for claims under the Civil Rights Act and the 14th Amendment encompasses alleged conduct back to May 29, 1970 but not earlier.

 The present Director, Joseph H. Lerner, was added as a defendant by amendment filed October 16, 1978. As to him, such claims of both parties reach back to October 15, 1972 but not before assuming he was in office then.

 In the case of the claims under 42 U.S.C. 2000e (the Civil Rights Act of 1964) the basic claim arises from the definition of what is an "unlawful employment practice for an employer", 42 U.S.C. § 2000e-2(a). The provisions for mechanisms to prevent unlawful employment practices are found in § 2000e-5. Charges are to be filed within 180 days of the alleged unlawful practice, with EEOC; but if the matter begins with a proceeding filed with a local agency of the same kind as EEOC, then the time for filing with EEOC is either 300 days after the alleged unlawful practice, or within 30 days after notice that the local proceeding has terminated, whichever is earlier; idem, par. (e). Assuming these time limitations with EEOC are satisfied, then the person aggrieved may file a civil action (either in a US District Court or a State court, see Peper v. Princeton, 77 N.J. 55, 389 A.2d 465 (1978); and if the Attorney General (US) has not filed a civil action in a case involving a government or governmental agency within 180 days of the filing of the charge with EEOC, the person aggrieved is to be so notified, and may bring the civil action within 90 days after the notice. *fn2"

 McNeil filed his Title VII charge with EEOC on May 25, 1974, and was issued a right to sue letter under date of March 4, 1976. Complaint was filed May 28, 1976, within 90 days, and can reach back 180 days before the EEOC filing, or to November 26, 1973.

 Jones filed his EEOC complaint February 18, 1975 (P-36). His "right to sue" letter from the Department of Justice is dated October 1, 1976, and if received the same day, the 90 days would have expired December 31, 1976. He was joined as plaintiff on December 16, 1976 and so his claim under 42 U.S.C. § 2000e is not barred by limitations. His claim can reach back to 180 days before February 18, 1975 (EEOC filing date), or to August 22, 1974.

 The amendment removing the exemption of state and local governments from Title VII had an effective date of March 24, 1972, and alleged violations after that date may be asserted, subject to the applicable limitations. See the Equal Employment Opportunity Act of 1972, Pub.L.No. 92-261, 86 Stat. 103. *fn3"

 The Immunity Question

 The complaint, as amended, names as defendants the present director of the ABC and three former directors (McDonough, Bowers and Ronco), individually and as Directors, plus the "State of New Jersey Division of Alcoholic Beverage Control." *fn4"

  From the legislative history outlined above, there can be no doubt that insofar as the ABC is itself named as a defendant, the State of New Jersey is effectively named. The ABC is a division within the Department of Law and Public Safety, headed by the Attorney-General, and one of the principal departments in the Executive Branch. The employer is the State itself. Plaintiffs are state employees in the unclassified service. This fact being undeniably so in light of the structure of state government as reflected in its local Constitution and statutes, it follows that the only claims for money damages that plaintiffs can assert against the State are those coming within 42 U.S.C. § 2000e, et seq., because the 1972 amendment contained a Congressional waiver of the State's immunity from suit under Amend. 11, through the exercise of its legislative power to implement Amend. 14 under § 5 thereof. Thus, no monetary claim can be asserted against the State under 42 U.S.C. § 1981, et seq., because for those statutes there has been no waiver of sovereign immunity, either by Congress or by the State. See: Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961), as modified by Monell v. Department, etc., 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978); Parden v. Terminal Railway Co., 377 U.S. 184, 84 S. Ct. 1207, 12 L. Ed. 2d 233 (1964); Edelman v. Jordan, 415 U.S. 651, 94 S. Ct. 1347, 39 L. Ed. 2d 662 (1974); Fitzpatrick v. Bitzer, 427 U.S. 445, 455, 96 S. Ct. 2666, 2671, 49 L. Ed. 2d 614 (1976); Cannon v. University of Chicago, 441 U.S. 677, 99 S. Ct. 1946, 60 L. Ed. 2d 560 (1979); Chapman v. Houston, etc., 441 U.S. 600, 99 S. Ct. 1905, 60 L. Ed. 2d 508 (1979); and the analysis in Skehan v. Board, etc., 590 F.2d 470 (CA3, 1978).

 Of course, if a case is made out on the merits, the 11th Amendment does not stand in the way of prospective injunctive remedies to the extent they are otherwise warranted.

 The Substantive Law

 As the decisions in this evolving field of employment discrimination seem to indicate, the substantive law is essentially the same without regard to whether the claim is asserted under 42 U.S.C. § 1981, et seq., or under Title VII, 42 U.S.C. § 2000e, et seq.

 In terms of "essential elements" that must be established, of course, these will vary with the applicable statute. Thus, under 42 U.S.C. § 1981, the sole issue is "race", i. e., whether the claimant has been deprived of the same enumerated rights "as are enjoyed by white persons." Under 42 U.S.C. § 1983, the issue is whether the claimant, as a citizen of the United States, has been subjected under color of local law to the deprivation of any rights, privileges or immunities secured by the federal Constitution and laws. Under 42 U.S.C. § 2000e, et seq., the denounced grounds of treatment which make an employment practice unlawful are those based on race, color, religion, sex, or national origin. See 42 U.S.C. § 2000e-2.

 In the case of non-federal employment (which now embraces traditional "private sector" employment as well as employment by a non-federal government, government agency, etc.) a further distinction is made by 42 U.S.C. § 2000e-5(f)(1) in respect to prerequisites to suit. For strictly private sector claims, it is EEOC which can file suit or issue a 90-day right to sue letter. For state government and state agency claims, that function is assigned to the Attorney General (Department of Justice).

 Regardless of what the forbidden criteria are under a given statute, it seems well recognized that four elements must be shown to make out a prima facie case of discrimination:

1. the claimant falls into one of the forbidden categories, as may be applicable under the particular statute involved;
3. that although the claimant was qualified, he was rejected;
4. that after rejection of claimant, the employer continued to seek applicants who possessed claimant's qualifications.

 See, McDonnell Douglas v. Green, 411 U.S. 792, at 802, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668 (1973).

 Thus, a case based on race discrimination might arise under § 1981, § 1983 or § 2000e, or all three. A case based on freedom of religion may arise under § 1983 even though the employment relation is not involved, and may arise under both § 1983 and § 2000e if it is involved. But a case grounded on gender discrimination (at this stage of the law) can only arise in the employment context and only under § 2000e.

 These examples aside, however, the four elements of a prima facie case under McDonnell Douglas probably are not a closed class or enumeration since the ultimate issue in every case of this kind is whatever conduct the applicable statute may denounce. The four elements of McDonnell Douglas appear to be no more than an articulation of the kind of showing that is to be accepted by the courts as making out a prima facie case, i. e., such that if the evidence is closed at that point, the claim must go to the finder of fact (jury or judge) who may, but is not obliged to, find for the claimant on the showing made. The level of proof called for, in light of the ultimate issue to be decided, is clearly intended to be somewhat lower than would be called for in some other kind of case, in recognition of the difficulties of adducing more direct forms of evidence. It might well be said that the four elements of McDonnell Douglas represent a set of circumstances regarded by law as sufficient to make a prima facie case.

 They cannot be regarded as an exclusive or closed set of elements, however, because (1) each case will necessarily turn on its own facts; (2) as articulated they do not reach the discriminatory discharge type of case; (3) they are probably inextricably intertwined with the law on order and allocation of proof rules, which have been developed to deal with all cases in the general field.

 Kinds of evidence to be considered

 The development of a body of law through the decisional process is one based on reason and experience. It begins by reviewing and analyzing the set of existing decisions, and from that point developing an expression of a general principle by the logical process of induction. The general principle so developed is then applied to the decision of new disputes, each having its own set of facts, by the logical process of deduction.

 While it may be oversimplified, the history of modern jurisprudence shows that this process of induction and then deduction represents an attempt to apply to that part of the social sciences with which the law and the judicial process are concerned, the methods which have been so successful in the natural sciences from the days of the Renaissance and before.

 The behavior of water when heated, is a good example. Many experiments by different investigators, for example, showed a direct relation between the quantity of heat applied and the extent to which the temperature of the water rose. These and other observations led to the development of the theory of heat, before which it was only known that an object was (relatively) hot or cold. The study of observations led to the establishment of identifiable and precise units for the measurement of quantities of heat: the calorie is defined as that quantity of heat that will raise the temperature of one gram of water by one degree Centigrade, while the British Thermal Unit (B.T.U.) is that quantity of heat that will raise the temperature of one pound of water by one degree Fahrenheit.

 It was found that to melt a given quantity of ice, a change of state that does not raise the temperature, 80 times as much heat is needed as would be required to raise water temperature by one degree. This is the "heat of fusion" for ice. At the other end of the scale, where water is converted into steam, it was found that 537 times as much heat was needed to convert a given quantity of water into steam without raising its temperature or pressure. This is the "heat of vaporization" of water.

 These physical "laws", derived by induction from many experimental observations, and others like them, have led to countless discoveries and formulations in the natural sciences by applying the general principles so induced to specific other states of fact by deduction.

 Although the legal decisional process is analogous to that of the scientific method, and deliberately so designed, it is not the same. Water will boil at whatever temperature it does according to natural forces. The most that can be done is to describe it. The forces cannot be altered. In the social sciences, this is not true or, if it is true no means have been developed to achieve the same level of confidence and predictability. The law, as a branch of the social sciences, necessarily deals with the conduct and behavior of human beings, both as discrete individuals and as interacting populations of discrete individuals. About all that is known is that the behavior of discrete individuals or of populations cannot be forecast reliably in the same sense that the behavior of substances and forces can be in the natural sciences.

 These observations are considered to be of considerable importance in an evolving field of law such as this because, to quote Mr. Justice Holmes, "The life of the law is not logic, it is experience". (emphasis added). New decisions, like new scientific experiments, are the raw material by which the law, or a scientific principle, constantly evolves, changes or is refined. He did not discard logic; he emphasized the importance of experience. Logic is merely the tool by which experience is evaluated, understood and applied.

 Keeping in mind the cautions just discussed, the reported cases in the field so far recognize five categories of basic circumstances that will make out a discrimination in employment case:

1. individual disparate treatment cases, where the claimant adduces evidence which, if believed, tends to show less favorable treatment than peers due to some applicable forbidden criterion such as sex, race, etc. The prime example here is McDonnell Douglas v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973);
2. pattern and practice cases, where the claim is one of systematic disparate treatment of a category to which the claimant belongs, even though he cannot show "individual disparate treatment" directed to him. The major example of this category is Hazelwood School District v. U. S., 433 U.S. 299, 97 S. Ct. 2736, 53 L. Ed. 2d 768 (1977);
3. disparate impact or effect cases, where the claim is that some seemingly neutral test for employment (hiring or promotion) criterion disproportionately disqualifies individuals in a category protected by the forbidden criteria, and that the test or criterion is not justified by business necessity. The lead case for this category is Griggs v. Duke Power Co. 401 U.S. 424, 91 S. Ct. 849, 28 L. Ed. 2d 158 (1971). A later case in this group is Dothard v. Rawlinson, 433 U.S. 321, 97 S. Ct. 2720, 53 L. Ed. 2d 786 (1977);
4. perpetuation of discrimination cases, where the claim is that the application of a seniority system carries into the future the effect and impact of discriminatory practices preceding the effective date (in the particular case) of Title VII. These mainly arise out of exclusion practices of labor unions (though not exclusively). One example out of many where this element was involved is U. S. v. Int'l Union of Elevator Constructors, 538 F.2d 1012 (CA3, 1976). However, the decision in Int'l Brotherhood of Teamsters v. U. S., 431 U.S. 324, 97 S. Ct. 1843, 52 L. Ed. 2d 396 (1977) seems to narrow this category to those cases where the seniority system is itself discriminatory or had its genesis in a now-forbidden kind of discrimination (e.g. racial).
5. Affirmative action cases, which may or may not involve prior discrimination of any kind, where a program is adopted to try to overcome current or expected disparities. Examples here are University, etc., v. Bakke, 438 U.S. 265, 98 S. Ct. 2733, 57 L. Ed. 2d 750 (1978) and United Steelworkers v. Weber, 443 U.S. 193, 99 S. Ct. 2721, 61 L. Ed. 2d 480 (1979).

 These five categories are no more than an attempt at a rational grouping of types made up of the very large number of reported decisions at all levels. Before Bakke and Steelworkers there were only four classifications. Next month there may be a sixth. The classification is not closed, nor can it be closed any more than classifications of "fraud". Courts have always refused to express any closed classification of all types of frauds, because if they did, an ingenious schemer would find some other way to defraud that was outside the definition of classifications or categories. The same is obviously true of cases involving claims of forbidden discrimination in employment.

 There are also cases arising under other statutes, and not involving "civil rights" in the sense discussed. A good example is U. S. v. Testan, 424 U.S. 392, 96 S. Ct. 948, 47 L. Ed. 2d 114 (1976) where trial attorneys in a federal unit that involved matters coming before the Armed Services Board of Contract Appeals of the Department of Defense were classified by the U.S. Civil Service Commission in grade GS-13, and complained that their duties were identical to those of attorneys in the Contract Appeals Division (Judge Advocate Air Force) who were classified in grade GS-14 (a higher compensated level). The decision turns on collateral matters such as the jurisdiction of the Court of Claims, and the merits of the claim are not decided. Yet, though no issue of race, color, religion, sex, national origin, etc., is mentioned, an employee in GS-13 who feels he belongs in GS-14 has exactly the same reaction and view of being "discriminated against" as a claimant under § 1981, § 1983 or § 2000e.

 Order and Allocation of Proof

 This aspect of cases involving claims of unlawful discrimination in employment is unique only because the Supreme Court of the United States has found it necessary to indicate the kinds and quantum of evidence needed to adduce a prima facie case in this developing field of litigation. The concept that a claimant advancing an affirmative claim carries the burden of persuasion for the whole case is hardly novel. The notion that he must adduce some specified minimum, more than a modicum or scintilla, to survive a motion for involuntary dismissal at the end of plaintiff's case in a bench trial (Rule 41(b), F.R.Civ.P.) or a motion for a directed verdict in a jury trial at the same stage (Rule 50(a), F.R.Civ.P.) is also well established.

 Similarly, a defendant who rests on the motion (either kind) without tendering evidence of his own to meet a prima facie case takes the risk that the finder of fact, as distinguished from the judge ruling on a question of law, may conclude that the prima facie case also carries the burden of persuasion. It may be that the finder of fact will not be so persuaded, but a defendant who offers no evidence to meet ...

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