submitted under third circuit rule 12(6): May 30, 1990.
On Appeal from the United States District Court for the District of New Jersey; D.C. Civil No. 89-03239.
Hutchinson, Cowen and Seitz, Circuit Judges.
The appellants, the National Association for the Advancement of Colored People and several of its local branches (referred to collectively as "the NAACP"), appeal from an order of the district court dismissing their Title VII complaint against the appellee, the Township of Harrison ("Harrison"), for lack of standing and orders denying their motion for reconsideration and leave to amend their complaint. We find that the district court, although properly dismissing the original complaint, erred in failing to exercise its discretion as to whether the NAACP should have been granted leave to amend. Thus, we will affirm the court's order dismissing the complaint, but vacate its orders denying the NAACP's post-dismissal motions and remand for the court to determine whether an amendment should be allowed.
On July 31, 1989, the NAACP brought suit against Harrison alleging that the township's ordinance #747 violates Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 (1982) ("the Act"), because it establishes a residency requirement for municipal jobs which has a disparate impact on blacks.*fn1 The ordinance establishes, inter alia, that applications for municipal jobs will be accepted from nonresidents only if there is a shortage of qualified residents; that residents will always receive a hiring preference over nonresidents regardless of test scores; and that all nonresidents who are hired must move to Harrison within one year or face possible discharge. The NAACP contends that Harrison's ordinance, though neutral on its face, has a discriminatory impact since there are no blacks in the municipal workforce. As evidence of this contention, the NAACP argues that blacks and minorities comprise 21.1% of Harrison's private workforce, and the township abuts Newark and other New Jersey communities with large black populations (Harrison's minority population is less than one half of one percent).
The original complaint alleged in general terms that:
11. The defendant has engaged in employment practices which have discriminated and continue to discriminate against blacks, including members of and other persons represented by the plaintiff groups, because of their race.
12. The defendant's acts and practices . . . constitute a pattern or practice of resistance to the full enjoyment by blacks (including members of and other persons represented by plaintiffs) of their rights to equal employment opportunities without discrimination because of race. These acts and practices are intended to be and are of such a nature as to deny to blacks the full exercise of the rights secured by Title VII.
Before Harrison filed an Answer to the Complaint, the NAACP moved for summary judgment or a preliminary injunction. In conjunction with this motion the NAACP filed two affidavits bearing upon the issue of standing. First, Keith Jones ("Jones"), the President of the NAACP, Newark branch, stated that: "Among the more than 2500 members of the Newark and Jersey City branches are black persons who meet all of the relevant qualifications for employment by the Town of Harrison, and who would be interested in such municipal employment in Harrison if Job opportunities were made available to them." App. at 27. Second, Derek S. Ware ("Ware"), a member and the State Chairman of the Newark Branch of the NAACP, averred that he circulated among area residents a printed questionnaire entitled "N.A.A.C.P. SUBURBAN EMPLOYMENT OPPORTUNITIES CANDIDATES FOR EMPLOYMENT" ("employment opportunity questionnaire"). App. at 28, 62. This questionnaire specifically asked whether "you or a member of your family or a friend are interested in employment opportunities" in several listed towns including Harrison. Id. Ware's affidavit states that thirty-five questionnaires were returned and that in his opinion: "there are many more members of the Newark, Jersey City, Patterson, and Passaic Branches of the NAACP, and friends and relatives of such members, who are qualified for and interested in employment with Harrison and the other municipalities mentioned in the forms." App. at 29.*fn2
Harrison submitted a brief in opposition to the NAACP's motion for summary judgment and filed a cross-motion to dismiss based on the NAACP's alleged lack of standing and its failure to join an indispensable party, i.e., the New Jersey Civil Service Commissioner.*fn3 After a hearing, the district court entered an order on September 28 granting Harrison's motion and dismissing the complaint without prejudice because of the NAACP's lack of standing. App. at 111.*fn4 In its accompanying Opinion, the court held that: "I must dismiss this case for lack of standing . . . because individual members of the plaintiff have not made the linkage between discrimination in general and discrimination which they have personally experienced. Since the individual members of the plaintiff organizations have not shown that they have suffered the requisite 'injury in fact' to have standing to sue under [Supreme Court decisions], the plaintiffs as organizations do not have standing to sue on behalf of their members at the present time." App. at 109-10.
On October 12, 1989, the NAACP filed a motion under Fed. R. Civ. P. 59(e) for a rehearing and reconsideration of the order of dismissal. App. at 112.*fn5 The motion was based on the pleadings and record already established, several additional authorities, and several new affidavits and exhibits. In one of the new affidavits, Tyrone Jenkins ("Jenkins"), a black member of the NAACP residing in Newark, states that he is presently interested in obtaining employment as a fire fighter in several townships, including Harrison, but when he took the civil service exam in August 1988 he was told, apparently by employees of the Civil Service Commission, that he was only eligible to apply for jobs in his hometown of Newark. App. at 132-33. Jenkins asserts ...