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.
FACTS AND PROCEDURAL BACKGROUND
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
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,
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
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
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
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
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
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,
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.
STANDARD FOR SUMMARY JUDGMENT
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
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).