APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (D.C. CIVIL No. 72-2022)
Before Van Dusen, Weis and Higginbotham, Circuit Judges.
Plaintiffs charged defendants in a two-count complaint with discriminating on the basis of race and ethnic origin in the hiring and promotion of police officers in the Newark, New Jersey, police department. Plaintiffs allege defendants have violated 42 U.S.C. § 1981 (count I)*fn1 and Title VII, 42 U.S.C. § 2000e et seq. (count II). The district court, 488 F. Supp. 723, granted defendants' motion for summary judgment on the § 1981 claim because plaintiffs had failed to allege or demonstrate any intent on the part of defendants to discriminate.*fn2 Intentional discrimination, the district court held, is a necessary element of a § 1981 cause of action. The district court dismissed the Title VII claim because plaintiffs had not filed charges with the Equal Employment Opportunity Commission ("EEOC") within the statutorily required 180 days.*fn3 Plaintiffs appeal both the summary judgment granted on count I and the dismissal of their claim under count II. We affirm the district court action on count I as to all except the Newark defendants (see page 4 below) and on count II as to all defendants.
To become a Newark police officer an applicant must first pass a written examination administered by defendant New Jersey State Department of Civil Service ("State Civil Service"). If the applicant passes this examination, he or she must pass a physical and medical examination, again given by the State Civil Service.*fn4 Those who successfully complete these examinations are placed on an eligibility roster in the order in which they scored on the written test.*fn5 This roster is distributed to the various municipalities, including defendant City of Newark ("Newark"). Defendant Newark then screens all those applicants listed on the eligibility roster. This screening includes, but is not limited to, an investigation of the applicant's character, personal life, reputation, a personal interview, and a psychiatric examination. Any applicant who does not withstand this screening process is removed from the roster. Newark hires recruits for its police department as needed from the eligibility roster in the order on the list.
Defendant State Civil Service also prepares an eligibility roster for the promotion of officers within municipal police departments. This roster is compiled on the basis of a written examination, years in service, and a service rating.
Plaintiffs include Bronze Shields, Inc., a non-profit New Jersey corporation whose purpose is to eliminate racial discrimination against policemen generally and, more specifically, to promote the employment and promotion of black police officers within the Newark police department. Individual plaintiffs include several applicants for the position of police officer in Newark who either failed the written civil service examination (Olivia Howard, Crawford, and Jackson), the physical or medical examination (Gonzalez and Hernandez), or the screening carried out by Newark (Livingston, Thomas, and Pittman). Plaintiffs Reid, Williams, and Frank Howard are Newark police officers who, for a variety of reasons, defendants did not place on the list of those eligible for promotion.
Defendants include the State Civil Service which is responsible for the development and administration of standards, including examinations, that condition the hiring and promotion of municipal police officers throughout the State of New Jersey. N.J.Admin.C. tit. 4:1-3.5. Defendant New Jersey State Civil Service Commission is subsumed under the State Civil Service. N.J.Admin.C. tit. 4:1-3.1. These defendants, and the individual defendants employed by the state, are referred to as the state defendants. The remaining two defendants, Newark and the supervisor of the Newark police department, are, in the following discussion, referred to collectively as Newark. Newark uses the state-prepared eligibility lists and its own screening procedures to determine the candidates eligible for hire by the police department.
Because the allegations in plaintiffs' complaint are important to the determination of all the issues presented, we describe them in detail. Plaintiffs first charge both Newark and the state defendants with racial discrimination for their respective roles in either promulgating or using the eligibility roster for the hiring of Newark police officers. The eligibility roster, as initially published by the State Civil Service, is based on written, physical and medical examinations. The written examination, plaintiffs charge, has a disproportionate impact on minorities: a larger percentage of blacks and Hispanics who take the examination fail as compared to whites. For those applicants who voluntarily disclosed their race, the following passed the civil service examination:
White Male Black Male Male
Date Passing Passing Passing Passing Passing Passing
5/ 8/72 56743% 2717% 610%
6/19/72 23360.8% 1325% 3100%
7/17/72 61466.1% 6328.6% 1625%
9/22/72 23662.3% 525% 325%
11/18/72 77072.4% 7839.8% 2935.8%
3/19/73 70955.4% 2120.6% 718.4%
5/23/73 49.4% 19.4% 31.9%
8/ 6/73 62.8% 28.1% 24.8%
7/15/74 63367% 1625% 1645%
6/21/75 36.8% 14.5% 11.3%
The state-administered physical examination, plaintiffs contend, excludes a disproportionate number of Hispanic applicants because it requires that all candidates be 5 feet 7 inches tall. The two contested examinations, along with a medical examination, provide the basis for the roster promulgated by the state defendants and used by the Newark police department. The use of this eligibility roster, plaintiffs allege, results in a pattern of unlawful employment discrimination on the basis of race and ethnic origin. Newark, then, is charged with discrimination for its use of the eligibility roster; the state related defendants are charged with discrimination for the promulgation of the offending list.
Plaintiffs have charged Newark alone with employment discrimination because of the screening procedures it uses to further reduce the number of candidates on the eligibility roster. These screening procedures, only vaguely set out in the complaint, allegedly have a disproportionate impact on blacks and Hispanics, are not job related, and are applied arbitrarily.
Both the state defendants and Newark are accused of discriminating for their part in the promulgation or use of the eligibility roster used to promote, as compared to hire, officers within the Newark police department. New Jersey law, N.J.Admin.C. tit. 4:1-8.4.-6, requires that the State Civil Service consider three factors in compiling the eligibility list for promotions: number of years in service, service rating given by a supervisor, and score on a written examination. Consideration of years in service, plaintiffs claim, continues the effects of past discrimination. The service rating is a discretionary decision which, plaintiffs argue, reflects the bias and prejudice of the generally white decision maker. Finally, plaintiffs charge that the written promotion examination, administered by the State Civil Service, has a disproportionately negative effect on the promotional opportunities for blacks and Hispanics.
II. THE PROCEDURAL HISTORY
Plaintiffs initially filed their complaint in 1972, alleging discrimination by defendants in violation of 42 U.S.C. §§ 1981 and 1983 and the Thirteenth and Fourteenth Amendments of the Constitution. No claim based on Title VII was made at that time. On November 26, 1974, the district court issued a preliminary injunction in favor of plaintiffs. This injunction required Newark to hire one black or Hispanic police officer for every two white officers hired.*fn6
The Supreme Court announced its decision in Washington v. Davis, 426 U.S. 229, 96 S. Ct. 2040, 48 L. Ed. 2d 597 (1976), in June 1976. The Court in Washington required proof of intentional discrimination for constitutionally based claims of discrimination. Washington v. Davis, supra at 247-48, 96 S. Ct. at 2051-52. Because plaintiffs had not alleged any intentional discrimination, defendants moved to dismiss. The district court stayed the motion to await the outcome of a charge filed by plaintiffs with the EEOC challenging the same employment and promotion practices.
Six individual plaintiffs filed employment discrimination charges against defendants with the EEOC in July 1976, approximately one month after the announcement of the Washington decision. After receiving right to sue letters, these individuals amended the complaint and added count II, the claim based on Title VII. It is this amended complaint which is being considered here.
The district court first addressed the Title VII claim. On March 12, 1979, the court denied plaintiffs' motion to certify a class since plaintiffs had failed to file charges with the EEOC within the required 180 days.*fn7 Because of the untimely filing, plaintiffs' Title VII cause of action, count II, was dismissed on April 2, 1979.
The district court then returned its attention to the original count I, the § 1981, § 1983, and Thirteenth and Fourteenth Amendment claims.*fn8 The court entered summary judgment for defendants on count I on April 29, 1980. It held that claims based on § 1981, § 1983, or the Fourteenth Amendment*fn9 all require intentional discrimination as an element of the cause of action. Because no allegation or showing of intentional discrimination had been made, plaintiffs' count I claims could not withstand a motion for summary judgment.
We first address this court's jurisdiction. Plaintiffs initially filed a notice of appeal on July 7, 1980, from the orders refusing to vacate the grant of summary judgment on count I and the dismissal of count II. The orders appealed from, however, did not rule on all attorneys' fees which plaintiffs had requested in their complaint. After the grant of summary judgment and dismissal, plaintiffs filed a separate petition for counsel fees which was denied by the district court on December 1, 1980. Plaintiffs filed a second appeal, No. 81-1133, on December 22, 1980, which did not challenge the denial of counsel fees but repeated the same grounds set out in the July 7, 1980, notice of appeal. Admittedly this second appeal was filed as a cautionary measure to insure that the court had jurisdiction in the event that the July 7, 1980, notice of appeal was premature.
The plaintiffs' apprehensions were well founded because in Croker v. Boeing Co., etc., et al., 662 F.2d 975 at 981 (3d Cir., 1981), this court concluded that an appeal taken before attorney's fees were determined was premature.
Plaintiffs' motion to consolidate the appeals at Nos. 80-2003 and 81-1133 has been granted, and hence this court has jurisdiction under No. 81-1133 to review the order filed December 1, 1980 (Document 141 in the District of New Jersey Civil No. 72-2022), and the orders included in the July 7, 1980, notice of appeal since they were repeated in the December 22, 1980, notice of appeal. The appeal at No. 80-2003 will be dismissed as premature in view of Croker, supra. We turn then to the merits.
Plaintiffs on appeal contest the district court's conclusion that the charges, filed with the EEOC against the state defendants and Newark, were untimely. The only charges which are of concern here are those based on the defendants' promulgation and use of the allegedly discriminatory hiring roster, not the promotion roster. The district court found that, of the plaintiffs who had filed Title VII charges, none had standing to challenge the eligibility lists used for promotion purposes*fn10 and plaintiffs do not contest this holding on appeal.*fn11 To further clarify what Title VII claims are not involved here, we note that plaintiffs do not argue they have standing to contend that the screening procedures used by Newark violate Title VII.*fn12 The only charges which we must determine as timely or untimely filed are those alleging discrimination resulting from the promulgation or use of the eligibility roster for hiring.
Pursuant to section 706(e) of Title VII, 42 U.S.C. § 2000e-5(e),*fn13 a charge of discrimination must be filed with the EEOC within 180 days after the alleged unlawful employment practice occurred.*fn14
The specific facts pertinent to the timely filing issue are as follows. Plaintiffs Olivia Howard and Crawford took the examination for police officer candidates on January 18, 1975. In February 1975, they were notified they had failed. The State Civil Service promulgated the eligibility roster on May 3, 1975. This roster remained in effect for three years. Newark only used the roster once when it hired 27 recruits for police officer training in November 1977. Plaintiffs filed charges of discrimination with the EEOC on July 9, 1976.
The district court held that the allegedly discriminatory employment practice occurred with the promulgation of the eligibility roster published on May 3, 1975. The plaintiffs' EEOC charges, filed in July 1976, were not filed within 180 days of May 3, 1975, and therefore were untimely. Plaintiffs challenge this holding and argue that their filings were timely under either (A) the continuing violation theory or (B) the doctrine of equitable estoppel.*fn15
A. The Continuing Violation Theory
Plaintiffs first rely on the continuing violation theory to support the allegation that their discrimination charges were timely filed. Plaintiffs assert that the eligibility roster, based on the results of the allegedly discriminatory civil service examination, constitutes an unlawful employment practice which continued to violate Title VII for as long as the roster was in effect. The roster was in effect from May 1975 until at least November 1977. Plaintiffs filed charges with the EEOC in July 1976. Because they filed during the roster's effectiveness, plaintiffs assert their filings were timely.
The continuing violation theory has attracted widespread attention by commentators,*fn16 and has been employed by courts to expand the filing period available to Title VII complainants.*fn17 The liberal application of the congressionally mandated filing period is consistent with the remedial purposes of Title VII and the liberal interpretation to be given to all Title VII provisions.*fn18 The expansive application of the 180-day filing limit has been justified as permitting claims filed by lay employees unversed in the procedural niceties of the law.*fn19 Indeed, a Senate Conference Committee report specifically recognized and approved the courts' expansion of the statutory filing period through the use of the continuing violation theory.
"This subsection as amended provides that charges be filed within 180 days of the alleged unlawful employment practice. Court decisions under the present law have shown an inclination to interpret this time limitation so as to give the aggrieved person the maximum benefit of the law; it is not intended that such court decisions should be in any way circumscribed by the extension of the time limitations in this subsection. Existing case law which has determined that certain types of violations are continuing in nature, thereby measuring the running of the required time period from the last occurrence of the discrimination and not from the first occurrence is continued, and other interpretations of the courts maximizing the coverage of the law are not affected."
118 Cong.Rec. 7167. The Senate accepted this report by a vote of 62 to 10. 118 Cong.Rec. 7167, 7170. Finally, this court has recognized the continuing violation theory in Title VII cases, see Masco v. United Airlines, 574 F.2d 1127 (3d Cir. 1978); Bethel v. Jendoco Const. Corp., 570 F.2d 1168 (3d Cir. 1978); Wetzel v. Liberty Mutual Insurance Co., 508 F.2d 239, 246 (3d Cir.), cert. denied, 421 U.S. 1011, 95 S. Ct. 2415, 44 L. Ed. 2d 679 (1975), as have numerous other circuits.*fn20
The continuing violation theory, however, cannot be considered only in the expansive light of extending the filing period in order to protect a person's civil rights. Confronting and limiting the continuing violation theory is the explicit statutory 180-day limit, enacted by Congress to "protect employers from the burden of defending claims arising from employment decisions that are long past." Delaware State College v. Ricks, 449 U.S. 250, 256-57, 101 S. Ct. 498, 503-04, 66 L. Ed. 2d 431 (1980), citing Johnson v. Railway Express Agency, 421 U.S. 454, 463-64, 95 S. Ct. 1716, 1721-22, 44 L. Ed. 2d 295 (1975); see United Air Lines v. Evans, 431 U.S. 553, 97 S. Ct. 1885, 52 L. Ed. 2d 571 (1977). Although many district courts and courts of appeals have favored the expansive interpretation of the continuing violation theory, the Supreme Court has, in its two most recent opinions on the subject, refused to apply the continuing violation theory. Delaware State College v. Ricks, supra; United Air Lines v. Evans, supra. Instead, as indicated above, the Court has emphasized the congressional intent to limit an employer's liability for stale claims.
"The limitations periods, while guaranteeing the protection of the civil rights laws to those who promptly assert their rights, also protect employers from the burden of defending claims arising from employment decisions that are long past. Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 463-464, 95 S. Ct. 1716, 1721-1722, 44 L. Ed. 2d 295 (1975); see ...