occurred from March 25, 1982 to December 31, 1983: the other two were idiosyncratic, one from a prior list and the other due to a death in the line of duty. Citing layoffs, demotions, and the elimination of positions, intervenors contend that promotions during this time period were characterized by long delays. Thus, they conclude, it would be unfair to those listed on PM 0661C if this list were suddenly rendered inoperative; they have been waiting on the list for a long time, and would have been promoted but for the economic hardship faced by East Orange, and the ensuing hiring freeze. Minority firefighters, on the other hand, though forced to wait an additional period of time for the possibility of promotion, would be thus inconvenienced far less than their senior white counterparts.
Defendant East Orange has responded by memorandum and affidavit, arguing that no promotion has been postponed because of the freeze except for one that required the Board of Fire Commissioners to decide upon the proper number of deputy chiefs. East Orange adds that it considered intervenors' alternative version of the facts prior to submitting the stipulation entered into between it and the plaintiff United States. The government has also responded by noting that the delays, layoffs, etc. to which intervenors point as evidence of a freeze occurred prior to October 18, 1982, during the continuing term of PM 1476. Hence, any effect upon firefighters awaiting promotion on PM 0661C was, until that date, due to the extended operation of PM 1476, and not to a freeze. The government contends that since October 18, 1982, no freeze has, in fact, been operative.
Intervenors' opposition to plaintiff's motion has two bases. First, they argue that "plaintiff's objection is not provided for procedurally within the terms of the Consent Decree," because the United States is nowhere given "the authority to object to the extension of an eligibility list." Intervenors' Memorandum at 2-3. This position is completely without merit: the Decree provides for plaintiff to object to the use of a particular list during the development of such list, Consent Decree para. 7, "or thereafter." Consent Decree para. 8. The Decree undoubtedly contemplates that the government would be able to object where, as here, the process of combatting discrimination depends not merely upon the development of particular lists, but upon which of two alternative lists are used. Therefore, the court finds plaintiff's objection well within its rights under paragraph 8 of the Decree. Nor is intervenors' complaint that plaintiff's objection is unreasonably late a fair one: the evidence demonstrates that plaintiff moved with reasonable, if not immediate, haste to confront this problem, once it came to plaintiff's attention.
Intervenors' second challenge to the government's motion is based upon the facts: they argue that, because there was a promotional freeze in effect, firefighters on PM 0661C have not been promoted as they otherwise would have. Having been placed on an unusually slow-moving line, and having competed for places on that line with minorities,
those at the head of the line ought not be told to take a new test just as they reach the doorway of opportunity. Such an argument reflects the policy concerns underlying N.J.S.A. 11:22-34.1.
Plaintiff contends that, in fact, the line was not a particularly slow-moving one and that it is in the nature of such lines that the door will invariably close on some unlucky person who has been standing there for some time. When the timing of the closing of one door and the opening of another is delayed in a manner concededly deleterious to minorities awaiting their turn even to queue up, then the question becomes one of civil rights.
As such, it is governed by the letter and spirit of the Consent Decree. The facts, as submitted to the court, leave no doubt but that the promotional freeze mandated by East Orange has melted sufficiently to lose its character as "an ordinance, resolution, rule or regulation temporarily barring promotions." Promotions, while below average during an era of economic downturn, were not entirely absent. The list has been utilized; those at its top promoted. It is now time to move to a new list, one with an impact more advantageous to the minorities who are the intended beneficiaries of the Consent Decree.
The nonminorities at the top of PM 0661C are not, of course, excluded from taking the new examination, to be given May 31, 1984; indeed, if past performance is any guide, they will do well. However, minorities historically disadvantaged by the operation of discriminatory employment schemes
have, as intervenors concede, "been brought into the department following the entry of the Consent Decree." Intervenors' Memorandum at 16. Having now served the requisite period of time, they should also have the opportunity to serve in loftier positions, based on valid, job-related testing.
Merely providing minorities with employment in the public sector does not satisfy the goals of the Constitution in general or the Consent Decree in particular. They must also have the opportunity to advance within their chosen career paths and, as the court has observed elsewhere, to retain their jobs in the face of layoffs that threaten to eradicate their gains. Local orders or state statutes cannot be allowed to stand in the way of these goals.
The interests of nonminorities in not taking another test do not sufficiently countervail these ends. However, the court is not unmindful of either the rights or the expectations of those who might otherwise receive promotions in the near future, but for this ruling. However, as contrasted with the situation involving layoffs, the effect of this decision will not be the taking of property without compensation.
The court here merely opens up the competition for specific positions. It does not foreclose any particular person from attaining such position, nor deprive any person of a vested economic benefit or an existing position. Here, the rights and opportunities of minority firefighters are advanced, but not necessarily at the expense of particular nonminority firefighters who may yet succeed in obtaining the desired promotions. That they must take another test before doing so, and thereby risk the loss of some advantage now held, is a small price to pay for the protection and advancement of the rights of persons so long the victims of discrimination.
Plaintiff's motion is granted. An appropriate order will issue.
Plaintiff, United States of America, having filed its motion for supplemental relief regarding the Fire Captain eligibility list for the City of East Orange, and counsel for all parties having been heard and the State Defendant and Defendant City of East Orange not opposing the motion,
IT IS on this 24 day of May, 1984, hereby
ORDERED that plaintiff's motion is granted; and it is
FURTHER ORDERED that the current Fire Captain eligibility list (PM 0661C) for the City of East Orange shall be terminated on October 18, 1984 and no appointments to the rank of Fire Captain shall be made from that eligibility list after that date.