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March 31, 2004.

DANIEL ANTONELLI, et al., Plaintiffs
STATE OF NEW JERSEY, et al., Defendants

The opinion of the court was delivered by: WILLIAM H. WALLS, District Judge


Defendants State of New Jersey and the United States each bring a Motion for Summary Judgment. Plaintiffs bring a Cross-Motion for Summary Judgment. Defendants also bring a Motion to Strike the October 20, 2003, Declaration of Robert J. Rohrberger. Defendants' Motions for Summary Judgment are granted. Plaintiffs' Cross-Motion for Summary Judgment is denied. The Motion to Strike is dismissed as moot.


  In 1977, the United States filed its Complaint in United States v. New Jersey, alleging that the State of New Jersey and twelve cities also named as defendants were, among other things, engaged in a pattern or practice of employment discrimination by denying equal employment opportunity to black and Hispanic applicants for entry-level firefighter positions in violation of Section 707 of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-6 ("Title VII"). A Consent Decree resolving the United States's claims was approved and entered by the Court in 1980. That Consent Decree required the State and cities named to undertake affirmative Page 2 action to increase the proportion of black and Hispanic personnel in their fire departments. In 1990, in settlement of a dispute between the United States and the State concerning the State's entry-level firefighter exam, a Supplemental Consent Order was approved and entered by the Court.

  In this action, Plaintiffs challenge the administration and scoring of the entry-level firefighter exam administered by the New Jersey Department of Personnel ("NJDOP") in 1999 and 2000 (the "1999 exam"). The three components of the 1999 exam were: Part I, a multiple-choice cognitive test designed to assess the ability to read and perform basic math; Part II, a biographical questionnaire (the "biodata component"), part of which was used to assess teamwork skills; and Part III, a physical performance test ("PPT").

  The biodata component was designed by Dr. Terry Mitchell, who first conducted a job analysis to determine the characteristics of effective firefighters. He identified three broad categories of characteristics to be used in evaluating candidates: physical performance, cognitive performance, and teamwork. He used this analysis along with further research to develop the biodata component. Dr. Mitchell's understanding at the time was that the entire biodata component, including the physical, cognitive, and teamwork questions, would constitute one-third of the overall exam score; he had developed the component with that idea in mind.

  Plaintiffs allege that as of July 1999, the NJDOP had decided to use the entire biodata component as one-third of the exam score (i.e., as Part II), but that in May 2000-after the administration of the exam-NJDOP decided to use the teamwork data of that component only. Defendants dispute this account. They point out that at a hearing on June 15, 1999, before the exam was given, Defendants discussed the three components of the exam with then-District Judge Politan. They told the Court that the biodata component as written measured physical, Page 3 cognitive, and teamwork abilities, but that only the teamwork data would be used as part of a candidate's overall score. (Hr'g Tr. of 6/15/99, at 9.) The principal dispute at the hearing was what the relative weights of the three components of the exam should be. The Court required the State and the United States to "attempt to agree on the use of the biodata instrument comprising the teamwork component by July 15, 1999." (Order of 7/30/99 in United States v. New Jersey, emphasis added.)*fn1 On July 30, 1999, Judge Politan ordered that "[t]he cognitive, teamwork and physical performance components of the entry-level firefighter examination developed by the State of New Jersey shall be scored, and the applicants' score on each of the three components shall constitute one-third of their total score for the purposes of ranking." (Id.)

  The written components of the exam (Parts I and II) were administered in November 1999, and the physical component was administered in early 2000. The same exam was administered to all candidates and the exams were all scored using the same scoring key. All candidates were required to achieve the same minimum cut-off score on each exam component, and all candidates who passed each component of the exam were ranked according to a final score with each component equally weighted.

  The NJDOP set the minimum cut-off scores for each component after the exam was administered. Before doing so, it analyzed whether various cut-off scores would have an adverse impact on candidates on the basis of race or sex. In doing so, the NJDOP was guided by the "four-fifths rule." Taken from the Uniform Guidelines on Employee Selection Procedures, 28 C.F.R. § 50.14, this rule holds that a selection rate for any race or sex that is greater than four-fifths of the rate of the group with the highest rate is generally regarded by federal enforcement agencies as evidence of no adverse impact. The cut-off scores established by the NJDOP resulted Page 4 in a passing rate, in comparison to the passing rate of white candidates, of 84.4% for black candidates and 83% for Hispanic candidates. Defendants assert that the adverse impact analysis did not affect the setting of the cut-off score for Part II, as there was no adverse impact almost anywhere along the range of scores. Plaintiffs dispute this, claiming that the cut-off scores were determined solely on the basis of minimizing adverse impact.

  In June 2000, the State filed a Motion for court approval of its use of the 1999 exam to certify firefighter candidates. In support of the Motion, the State stated that one of its main goals in the development and administration of the exam was to minimize adverse impact on minorities. The State explained what the cut-off scores were and how they were determined. Judge Politan granted the Motion, which authorized the NJDOP to establish firefighter eligibility lists based on the results of the 1999 exam. (Order of 6/29/00 in United States v. New Jersey).

  In January 2000, the NJDOP had informed Dr. Mitchell that, in addition to providing a score for total biodata for each candidate, he should prepare separate scores for the subparts of the biodata component (physical performance, cognitive performance, and teamwork). The NJDOP used this information to prepare the analysis described above. Plaintiffs allege that not until May 2000, after it had done this analysis, did the NJDOP decide to use only the teamwork questions from the biodata component as the score for Part II of the exam. The NJDOP disputes this, maintaining that while it set the cut-off scores after the administration of the exam, it made the decision to use only the teamwork questions beforehand. Dr. Mitchell objected to the proposed use of the teamwork questions only and refused to write a report validating the results of the scoring of Part II.

  When the candidates received their final scores, they also received a pamphlet explaining how Part II was scored. It said that although the biodata component was designed to test physical Page 5 performance, cognitive performance, and teamwork, "the questions relating to cognitive and physical skills were not graded, since these skills were measured by the other two parts of the firefighter test." The pamphlet also explained that candidates would not be able to review the questions and scoring key to Part II because they were proprietary and to maintain test security.

  This action arises from three actions styled Antonelli v. New Jersey, Deegan v. New Jersey, and FMBA v. New Jersey. In November 2000, several months after the establishment of new firefighter eligibility lists that resulted from the exam, the FMBA and the Antonelli Plaintiffs attempted to intervene in United States v. New Jersey to allege essentially the same claims they now allege in these consolidated actions. Their Motions to Intervene were denied. Thereafter, Plaintiffs filed three separate Complaints. All three cases have been consolidated.

  Each of the remaining twenty-four Antonelli Plaintiffs and remaining three Deegan Plaintiffs failed the 1999 firefighter exam because each scored less than 46 (the cut-off score) on Part II. One of the Antonelli Plaintiffs and one of the Deegan Plaintiffs identify themselves as Hispanic males; the others identify themselves as non-Hispanic white or Caucasian males. Some of the individual Plaintiffs had applied for appointment by cities that are defendants in United States v. New Jersey, while others applied for appointment by cities that are not defendants. Plaintiff New Jersey State Firemen's Mutual Benevolent Association ("FMBA") is one of several fire service labor organizations in New Jersey. Although none of the individuals who took the 1999 exam was an FMBA member, the FMBA professes to have an interest in the exam both on behalf of its members and on behalf of non-minority and non-member firefighter candidates.

  The Antonelli and Deegan Plaintiffs allege that New Jersey (the "State"), the NJDOP, and NJDOP officials (collectively, the "State Defendants") violated Plaintiffs' rights to due Page 6 process and equal protection under the Fifth and Fourteenth Amendments to the United States Constitution, their rights secured by 42 U.S.C. § 1983, and their rights under the New Jersey Constitution and New Jersey civil service law. Plaintiffs also claim that the NJDOP's administration and scoring of the 1999 exam violated the 1980 Consent Decree entered in United States v. New Jersey and later orders in that case, particularly the Order of July 30, 1999.

  Specifically, the Antonelli and Deegan Plaintiffs allege that Part II of the exam was not job-related and that the NJDOP intentionally designed, implemented, and/or scored the exam in a race-conscious manner. Plaintiffs allege that the NJDOP manipulated the scoring of the exam and treated Plaintiffs differently based on race in order to increase the number of minority candidates on the eligibility lists. In addition, Plaintiffs allege that the NJDOP violated the Order of July 30, 1999, by according the biodata component of the exam more than a one-third weight. Lastly, Plaintiffs allege that the State Defendants scored the exam in an arbitrary, capricious, and unreasonable manner and did not allow Plaintiffs sufficient access to test materials relating to the biodata component, including copies of their answers, the questions, the answer key, or any individualized information about their performance.

  The FMBA Complaint contains similar allegations on behalf of the FMBA, its members, and non-minority firelighter candidates. In addition, that Complaint alleges that the State Defendants violated Title VII of the Civil Rights Act of 1964, intentionally interfered with the FMBA's ability to provide adequate representation to its members and future members, and violated what the FMBA alleges are its members' Fourteenth Amendment due process rights to safety by using an exam that was discriminatorily scored.

  As relief Plaintiffs request that the Court: (1) declare the biodata component of the 1999 exam invalid; (2) order the NJDOP to re-score the exam without the biodata component or, Page 7 alternatively, to re-score the biodata component; (3) order the NJDOP to issue new firefighter rankings and a new eligibility list; (4) award counsel fees and costs; and (5) award other relief including, but not limited to, monetary damages and equitable remedies. The Antonelli and Deegan Plaintiffs also seek compensatory damages, punitive damages, back pay, seniority status, and benefits.

  Each Complaint names as defendants the State, several NJDOP officials in their official capacities, and the United States. The United States is named as a necessary party pursuant to Federal Rule of Civil Procedure 19. None of the twelve cities that are defendants in United States v. New Jersey are named as defendants in these consolidated actions.

  The State and the United States each bring a Motion for Summary Judgment. Plaintiffs bring a Cross-Motion for Summary Judgment. Defendants also bring a Motion to Strike the October 20, 2003, confidential Declaration*fn2 of Plaintiffs' attorney Robert J. Rohrberger (the "Rohrberger Declaration") because of alleged procedural and substantive deficiencies.


  Summary judgment is appropriate where the moving party establishes that "there is no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A factual dispute between the parties will not defeat a motion for summary judgment unless it is both genuine and material. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A factual dispute is genuine if a reasonable jury could return a verdict for the non-movant and it is material if, under the substantive law, it would affect the outcome of the suit. See Anderson, 477 U.S. at 248. The moving party must show that if the evidentiary material Page 8 of record were reduced to admissible evidence in court, it would be insufficient to permit the non-moving party to carry its burden of proof. See Celotex v. Catrett, 477 U.S. 317, 318 (1986). Once the moving party has carried its burden under Rule 56, "its opponent must do more than simply show that there is some metaphysical doubt as to the material facts in question." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The opposing party must set forth specific facts showing a genuine issue for trial and may not rest upon the mere allegations or denials of its pleadings. See Sound Ship Building Co. v. Bethlehem Steel Co., 533 F.2d 96, 99 (3d Cir. 1976), cert. denied, 429 U.S. 860 (1976). At the summary judgment stage the court's function is not to weigh the evidence and determine the truth of the matter, but rather to determine whether there is a genuine issue for trial. See Anderson, 477 U.S. at 249. In doing so, the court must construe the facts and inferences in the light most favorable to the non-moving party. See Wahl v. Rexnord, Inc. 624 F.2d 1169, 1181 (3d Cir. 1980).


 FMBA's ...

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