The opinion of the court was delivered by: SAROKIN
This case involves a claim of discrimination based upon the failure of the City of Newark to appoint certain fire cadets to the position of firefighters. The resolution of this matter requires a journey through the historical resistance of the City of Newark to admit minorities into the fire department.
According to the 1970 census, the population of Newark, New Jersey was 382,417, of whom 207,458 (54.2%) were black, and 27,443 (7.2%) were Hispanic. The Newark civilian labor force was 146,681, of whom 71,838 (49%) were black, and 7,403 (5%) were Hispanic. According to the 1980 census, the population of Newark was 58.2% black and 18.6% Hispanic.
As of August 1978, the Newark Fire Department had a force of 996 persons, of whom 64 (6.4%) were black and 4 (0.4%) were Hispanic. Only four of 182 persons in the first level supervisory rank of fire captain were black, and no black held a rank above fire captain. In the period from January 1, 1972 through May 1978, Newark appointed 124 persons to the rank of firefighter, of whom 6 (4.9%) were black, and 1 (0.8%) was Hispanic.
During the period from 1971 through 1979, the City of Newark established three programs which purportedly were initiated to increase the participation of minority persons in the Newark Fire Department. None of those efforts resulted in significant minority hiring in the Fire Department.
In 1971, the City utilized a federal grant to establish a fire cadet program which was limited to Newark residents and directed at minority and unemployed persons. Although the population of Newark was 60% minority at that time, 17 of the 22 fire cadets hired by the City in 1972 were whites. In 1974, the City utilized a federal grant to employ a group of 14 minority persons as fire cadets. It is this program which gives rise to this action. These persons successfully completed training as both firefighters and emergency medical technicians, with the expressed intent and assurance that they would become firefighters. Approximately 20 months after the cadets were hired, the City transferred the fire cadets from the fire department into another City department, thereby precluding the cadets from obtaining permanent firefighter positions through that program.
In August 1977, the City of Newark announced a bilingual (English-Spanish) examination for the position of firefighter in the Newark Fire Department. On September 21, 1978, an eligibility list for that examination was promulgated. Of 14 persons on the list, 12 were Hispanic and one was black. The City of Newark chose not to hire from that list until after the entry of the consent decree in this case in May 1980. Instead, it hired in the 1978-1980 period solely from an 80% white eligibility list.
In 1971, the Newark Fire Department established the position of fire cadet for persons between the ages of 17 to 21. Fire cadets were to receive firefighter training, were to be employed part-time as firefighters and also were to attend courses in fire science. They were to be made permanent firefighters upon completion of the cadet program. The program, which was federally funded, was intended to emphasize employment of minority and disadvantaged persons.
In February 1974, ten persons, all black or Hispanic, were appointed as fire cadets in the Newark Fire Department. Three of those persons (Larry Douglas, John Reynolds and Dean Wilson) were then on the 1973 regular firefighter eligibility list for Newark. In August 1974, five additional persons were appointed as fire cadets in the Newark Fire Department. All of the fire cadets hired in 1974 were black or Hispanic.
Each of the fire cadets appointed in 1974, as the fire cadets appointed in 1972, successfully completed the six week basic firefighter training course required of all new firefighters. They also successfully completed the Emergency Medical Technician (EMT) course and bilingual training. They were then employed in the Newark Emergency Medical Services unit, working with and performing the same job as persons employed as firefighters in the Newark Fire Department. By virtue thereof and according to the testimony of the Director of the Fire Department, each of these persons was qualified for employment in the job of firefighter. From the outset, the Director of the Newark Fire Department and other responsible City and Fire Department officials on several occasions represented to the persons hired as fire cadets in 1974, that they would obtain permanent status as firefighters after serving one year as fire cadets.
The City of Newark, which had responsibility for the operation of the fire cadet program, modified that program at the time of the hiring of the 14 minority fire cadets in 1974. The City claims that the emphasis on training as emergency medical technicians was brought about by the terms of the federal grant. However, no evidence was submitted by the City which supported the contention that the difference in the 1971 program as compared to the 1974 program was prompted by any federal directive. On the contrary, the focus on emergency medical training appears to have been unilaterally initiated by the City itself. In 1975, because it determined that the City had substantially modified the original cadet program, the State directed that the City terminate the fire cadet program. The 14 persons remaining in the fire cadet program, all of whom were black or Hispanic, were given status as provisional emergency medical technicians.
By reason of the change in emphasis, the New Jersey State Department of Civil Service and the City of Newark agreed to phase out the fire cadet program in 1975, but still meet the City's commitment to the fourteen cadets/EMT's by holding an examination for the position of emergency medical technician open to all persons, including the fourteen minority provisional EMT's who had been hired originally as fire cadets. Subsequently, a one-time promotional examination was to be held for those cadets who became permanent EMT's and who wished to become firefighters. All of the fourteen former cadets were qualified as permanent EMT's as of November 1975. As the result of that arrangement, the cadets retained the opportunity to attain firefighter status.
In early 1976, the City of Newark transferred the administration of the Emergency Medical Service, including the fourteen EMT's, out of the Fire Department and into the Health and Welfare Department, although the Emergency Medical Service continued to operate out of Newark fire houses. Because it could not promote personnel from a position in one department to a higher position in another department, the State notified the City that the plan for phasing out the program could not be implemented.
In 1978 and in early 1980, City officials, in response to inquiries about the cadet status, stated that nothing could be done because of the pending ...