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Kearny Generating System v. Roper

Decided: March 16, 1982.


On appeal from the final decision of the Director of the Division on Civil Rights.

Bischoff, King and Polow. The opinion of the court was delivered by Bischoff, P.J.A.D.


Defendant Kearny Generating System, Division of Public Service, (Kearny) appeals from a final determination of the Director of the Division on Civil Rights finding that Kearny violated N.J.S.A. 10:5-4 and N.J.S.A. 10:5-12 a in that it discriminated against plaintiff Richard Roper on the basis of race.

On September 7, 1973 plaintiff applied for a position as utility man with Public Service Electric and Gas Co. (PSE&G). After taking a test at the personnel department of PSE&G, plaintiff was sent to the Kearny plant to be interviewed by Kurt Steckley, the master mechanic. At the Kearny plant Steckley reviewed

plaintiff's application, gave him a tour of the plant and spoke to him about the facilities, the work and the benefits provided by the employer. Steckley advised plaintiff that he had other applications to go over and that he would call plaintiff to let him know. On or before September 24, 1973 Steckley called plaintiff and asked him to come in to arrange for a physical. On September 24 plaintiff went to Kearny to pick up some papers and at that time he was directed to the Newark office of PSE&G where he had a physical examination and had his picture taken. Several days later Steckley called plaintiff and advised him that he was not being offered the position. On October 11, 1973 plaintiff, a black, filed a complaint with the New Jersey Division on Civil Rights alleging that on or about October 5, 1973 he was unlawfully denied the position of utility man because of his race.

Two aspects of Kearny's hiring practices are pertinent to this appeal.

(1) At the time of plaintiff's application Kearny had an Affirmative Action Program in effect, the goal of which was to increase the percentage of minority employees to equal the percentage of minority population in the county in which the plant was located. The program was in compliance with federal guidelines compiled by the General Service Administration. In 1973 the number of minority persons employed in the service category exceeded the goal set for that year and equaled 95% of the goal set for 1976. In fact, the percentage of minority persons employed in that category approximated the percentage minority population in Hudson County.

(2) The terms of the collective bargaining agreement with the union required Kearny, in its hiring practices, to conform to a six-month posting procedure. Kearny was permitted to hire "off the street" only during certain periods when the posting procedures had not resulted in filling the positions by promotions from within. The permissible period for off-street hiring terminated in this instance on October 1, 1973.

In the August-September period during which plaintiff made his application, seven positions as utility man were available to be filled by applicants "off the street." By September 7, the date of plaintiff's application, four of these positions had already been filled by Caucasian males. On September 4, one of the white males resigned, increasing the number of openings remaining to be filled to four. These positions were filled by three minority persons and one male Caucasian.

While plaintiff filed his complaint with the Division on Civil Rights on October 11, it was not until August 25, 1977 (a period of three years, ten months!!) that the Director made a probable cause finding that plaintiff was individually discriminated against by Kearny in failing to hire him because he is black. It took over a year thereafter to complete the hearings, and after more than another year's delay the hearing examiner, on December 31, 1979, issued his recommended findings of fact and conclusions of law in which he found that plaintiff had been a victim of unlawful discrimination and held he was entitled to employment at Kearny with seniority rights, back pay in the amount of $113,988.05, less earnings during the period, together with interest at the rate of 8% a year on the net amount owed. After other proceedings not here relevant, the Director of the Division rendered his decision adopting the hearing examiner's recommended findings of fact and determination, with the exception of the recommended method of calculating interest on the back pay award.

Kearny appeals. It is conceded by all parties that the standards to be applied in ruling on a challenge to employment practices on the basis of discrimination are those set forth in the case of McDonnell Douglas Corp. v. Green , 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), where the court said:

The complainant in a Title VII trial must carry the initial burden under the statute of establishing a prima facie case of racial discrimination. This may be done by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications. [ Id. at 802, 93 S. Ct. at 1824.]

This principle has been adopted in New Jersey. Peper v. Princeton Univ. Trustee Board ...

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