United States District Court, D. New Jersey
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.
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).
Defendants argue that the FMBA lacks standing to raise the claims
asserted in its Complaint. The FMBA contends that it has standing by
virtue of its role in protecting the safety of its members. It argues
that the scoring of only the teamwork questions from the biodata
component rendered the exam invalid and non-job-related. The FMBA claims
that as a result, there is a chance that unqualified candidates will
become firefighters, thereby threatening the safety of current FMBA
members. The FMBA also asserts that it has direct standing as to its
tortious interference claim. It does not challenge Defendants' assertion
that it lacks standing as a representative of the candidates who failed
the 1999 firefighter exam.
To satisfy the standing requirements of Article III of the United
States Constitution, "a plaintiff must establish that it has suffered a
cognizable injury that is causally related to the alleged conduct of the
defendant and is redressable by judicial action." Pa. Psychiatric
Soc'y v. Green Spring Health Servs., Inc., 280 F.3d 278, 283 (3d
Cir. 2002) (citing Friends of the Earth, Inc. v. Laidlaw Envtl.
Servs. (TOO, Inc., 528 U.S. 167, 180-81 (2000); Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). "Associations
may satisfy these elements by asserting claims that arise from injuries
they directly sustain. Absent injury to itself, an association may pursue
claims solely as a representative of its members." Li (citations
omitted). To claim associational standing, a group must demonstrate
that "(a) its members would otherwise have standing to sue in their own
right; (b) the interests it seeks to protect are germane to the
organization's purpose; and (c) neither the claim asserted nor the relief
requested requires the participation of individual members in the
lawsuit." Hunt v. Wash. State Apple Adver. Comm'n,
432 U.S. 333, 343(1977).
As a threshold matter, the FMBA must establish a cognizable injury to
itself (to claim direct standing) or to its members (to claim
associational standing). It has done neither. A cognizable injury, or
"injury in fact," must be "(a) concrete and particularized and (b) actual
or imminent, not conjectural or hypothetical." Friends of the
Earth, 528 U.S. at 180 (citing Lujan, 504 U.S. at
The FMBA lacks direct standing as to its tortious interference claim.
Its Complaint alleges that the group was injured by the NJDOP's failure
to provide it with the biodata testing materials. The FMBA has not
proffered any concrete and particularized facts to establish how the
NJDOP's inaction interfered with its ability to represent its members.
The FMBA also lacks associational standing to pursue the claims of its
members. It argues that its members' "right to safety and security" under
the Fourteenth Amendment was injured by the potential hiring of
unqualified candidates based on an invalid and non-job-related exam. The
due process clause of the Fourteenth Amendment, however, does not impose
a duty on a government employer to provide its employees a safe working
environment. Collins v. City of Harker Heights, 503 U.S. 115,
126 (1992). The cases advance by the FMBA do not support its position.
Ingraham v. Wright found a right to freedom from
government-imposed bodily restraint and punishment without due process of
law. 430 U.S. 651, 673-74 (1977) (in the context of corporal punishment
in public schools). Such intentional infliction of harm is very different
from the conduct alleged here. Washington v. District of
Columbia held that a state has no constitutional obligation to
provide a safe working environment for its employees. 802 F.2d 1478, 1482
(D.C. Cir. 1986). The Fourteenth Amendment does not protect employees who
voluntarily put themselves in harm's way because they are not at the
mercy of the government. "If they deem the terms of their employment
unsatisfactory, e.g., if salary, promotion prospects, or safety are
inadequate, they may seek employment elsewhere." Id.
Because the FMBA has not established a cognizable injury to itself or
its members, it lacks standing to pursue the claims asserted in its
Complaint. The FMBA Complaint is dismissed.
The State argues that the Court should abstain from reviewing
Plaintiffs' claims because there are ongoing and adequate state court
proceedings. See Younger v. Harris, 401 U.S. 37 (1971).
Plaintiffs filed administrative appeals with the Merit System Board of
challenging, among other things, their results on the biodata
component. The appeals have progressed to the Superior Court of New
Jersey, Appellate Division.
"In order for a federal court to abstain under the Younger
doctrine: (1) there [must be] ongoing state proceedings that are judicial
in nature; (2) the state proceedings [must] implicate important state
interests; and (3) the state proceedings [must] afford an adequate
opportunity to raise federal claims." Anthony v. Council,
316 F.3d 412, 418 (3d Cir. 2003) (citations omitted).
"[I]n determining whether Younger abstention is proper, where
a governmental entity is party to the litigation, courts have
consistently distinguished between `coercive' and `remedial' state
proceedings." Assisted Living Assocs. of Moorestown, L.L.C. v.
Moorestown Tp., 996 F. Supp. 409, 432 (D.N.J. 1998) (citing
Ohio Civil Rights Comm'n v. Dayton Christian Sch.,
477 U.S. 619, 627 n.2 (1986)). Abstention is only proper when the state court
proceeding is a coercive action instituted by the state. Li See also
Alleghany Corp. v. Haase, 896 F.2d 1046, 1053 (7th Cir. 1990)
(Posner, J.) ("Younger is confined to cases in which the federal
plaintiff had engaged in conduct actually or arguably in violation of
state law, thereby exposing himself to an enforcement proceeding in state
court which, once commenced, must be allowed to continue uninterrupted to
The administrative appeals filed by Plaintiffs are clearly remedial in
nature. "Plaintiffs are not attempting to use the federal forum as an end
run around state enforcement efforts. Rather, Plaintiffs have chosen to
assert their federally protected rights in federal court." Assisted
Living Assocs., 996 F. Supp. at 433. Abstention is not warranted in
Antonelli and Deegan
Plaintiffs' Standing to Enforce the Consent Decree and Orders
in United States v. New Jersey
The Antonelli and Deegan Plaintiffs seek to enforce the 1980 Consent
Decree and the Order of July 30, 1999. The Order is part of the Court's
continuing administration of the Consent Decree. Defendants assert that
Plaintiffs lack standing to enforce the Consent Decree or, by extension,
A court in this district recently addressed this precise issue. In a
case involving an attempt by non-parties to enforce the Consent Decree at
issue in this case, the court noted that "[i]t is well-established that
only parties to a consent decree may enforce it." Bennett v. City of
Atlantic City, 288 F. Supp.2d 675, 683 (D.N.J. 2003) (citing
Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 750
(1975)). "Although non-parties may initiate proceedings in a separate
action to challenge actions taken pursuant to the consent decree where
those actions support a claim for violation of constitutional rights or
other federal law, they are barred from suing under the decree itself."
Id. (citation and quotes omitted).
None of the Plaintiffs are parties to the Consent Decree. The Antonelli
and Deegan Plaintiffs lack standing to enforce the Consent Decree or the
Order of July 30, 1999.
New Jersey's Sovereign Immunity
Defendants argue that Plaintiffs' remaining claims are barred by New
Jersey's sovereign immunity pursuant to the Eleventh Amendment, with one
exception. The United States concedes that sovereign immunity does not
bar Plaintiffs' § 1983 claims against the NJDOP officials sued in
their official capacities for prospective, injunctive relief. See Ex
parte Young, 209 U.S. 123 (1908).
Defendants bear the burden of proving that they are entitled to
sovereign immunity. See Chisolm v. McManimon, 275 F.3d 315, 323
(3d Cir. 2001). This broad immunity "applies
regardless of whether a private plaintiff's suit is for monetary
damages or some other type of relief." Fed. Mar. Comm'n v. S.C.
State Ports Auth., 535 U.S. 743, 765 (2002).
Sovereign immunity is routinely extended to state agencies and state
officials acting in their official capacities where it is shown that "the
state is the real, substantial party in interest." Bennett,
288 F. Supp.2d at 679 (quoting Ford Motor Co. v. Dep't of Treasury,
323 U.S. 459 (1945)).
[T]o determine if state agencies, officials or
political subdivisions are arms of the state
entitled to immunity under the Eleventh Amendment,
the Court must examine: (1) whether payment of a
judgment would come from the state treasury; (2)
the status of the entity under state law; and (3)
the entity's degree of autonomy. Although no one
factor is determinative, the first factor is
generally deemed the most important.
Bennett, 288 F. Supp.2d at 681 (citing, inter
alia, Chisolm, 275 F.3d at 323) (citations omitted). The
NJDOP is an agency within the executive branch of the New Jersey state
government. The named NJDOP officials are employees of the State. Any
judgment against the NJDOP or the NJDOP officials acting in their
official capacities would be paid by the State. Thus, the NJDOP and the
officials are arms of the State and are entitled to Eleventh Amendment
Although broad, sovereign immunity is not absolute. Two exceptions
exist in addition to the exception for suits for prospective, injunctive
relief against state officials under Ex parte Young. First, a
state can consent to suit in federal court. E.g.,
Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238 (1985).
State waivers of immunity are narrowly construed and generally require
the state to either voluntarily invoke the federal court's jurisdiction
or make a "clear statement" that it intends to invoke such jurisdiction.
College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense
Bd., 527 U.S. 666, 675-76 (1999). Second, Congress may abrogate
state sovereign immunity "in the exercise of its power to enforce the
Fourteenth Amendment." College Sav. Bank, 527 U.S. at 670. To
do so, Congress must make its intention
"unmistakably clear in the language of the statute." Kimel v.
Fla. Bd. of Regents, 528 U.S. 62, 73 (2000) (citations and quotes
Plaintiffs argue that the State waived its sovereign immunity by
entering into the 1980 Consent Decree. They cite the Supplemental Consent
Order, which provides that any litigation involving that Order
brought in state court must be removed to federal court. (Supplemental
Consent Ord. para. 31.) Plaintiffs also point out that the original
Consent Decree requires litigation concerning the Decree to be brought in
federal court. As example, the Decree requires that
Should plaintiff United States . . . determine
that the promotional selection process will have
the purpose or effect of discrimination against
black or Hispanic applicants . . . the affected
parties shall meet . . . to discuss resolution
of the matter. If the parties fail to resolve the
matter, any affected party may move the Court
(Consent Ord. para. 8, emphasis added.) There are a number of other
instances in the Decree in which parties to the Decree agree to resolve
their disputes in the federal district court.
The State's entry into the Consent Decree is not sufficient to waive
its sovereign immunity from Plaintiffs' civil rights claims. As another
court in this district held recently with regard to the same Decree, the
provisions of the Decree do not constitute
the type of explicit waiver needed to subject the
State to this Court's jurisdiction for federal
civil rights claims brought twenty years after the
decree was signed and brought by Plaintiffs who
are not parties to the decree. See Vulcan
Pioneers of N.J. v. City of Newark, Civ. No.
02-5802, slip op. at 7-8 (D.N.J. May 27, 2003)
(finding that "New Jersey did not make a `clear
declaration' that it intended to submit itself to
federal jurisdiction over various civil rights
claims brought by Plaintiffs in 2003 when it
waived its immunity in 1977 and agreed to the
Consent Decree in 1980").
Bennett, 288 F. Supp.2d at 682-83. While it is conceivable
that by entering into the Consent Decree, the State waived its sovereign
immunity for purposes of Plaintiffs' claims under the Decree itself, the
Court need not determine that issue because Plaintiffs lack standing to
such claims. See id. at 683.
It is also well-established that Congress's passage of 42 U.S.C. § 1983
did not abrogate the states' Eleventh Amendment immunity. Will
v. Michigan Dep't of State Police, 491 U.S. 58, 66 (1989). Thus,
sovereign immunity bars Plaintiffs' federal claims except for those
against the NJDOP officials sued in their official capacities for
prospective, injunctive relief.
Plaintiffs point out correctly that federal claims for monetary relief
can be maintained against state officials sued in their
personal capacities. See Hafer v. Melo, 502 U.S. 21
(1991). However, Plaintiffs have asserted their claims against the
individual Defendants in their official capacities only. (Stipulation
filed 7/30/02.) Plaintiffs' federal claims for monetary relief are
Plaintiffs' state law claims are also barred by the State's sovereign
immunity. Although the Ex parte Young exception permits
federal law claims for prospective, injunctive relief against
state officials named in their official capacities, this exception does
not apply to state law claims. Allegheny County Sanitary Authority
v. U.S. Envtl. Protection Agency, 732 F.2d 1167, 1174 (3d Cir. 1984)
(citing Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89,
106 (1984)). Moreover, Plaintiffs have not shown that the State has
explicitly waived its immunity from suit on state law claims in
federal court, see Atascadero, 473 U.S. at 241, or
that Congress has abrogated it. The New Jersey Law Against Discrimination
"does not contain the express language required to waive the State's
immunity from suit in federal court." Bennett, 288 F. Supp.2d
at 683. The State is also immune from suit under the New Jersey Tort
Claims Act. Garcia v. Richard Stockton Coll. of N.J., 210 F. Supp.2d 545,
550 (D.N.J. 2002). Plaintiffs' state law claims asserted in
this Court are dismissed.
§ 1983 Claims
To establish a claim under 42 U.S.C. § 1983, Plaintiffs must show
that the NJDOP officials acted under color of state law to deprive them
of a federal statutory or constitutional right. Plaintiffs assert
violations of their constitutional rights to equal protection and due
process of law.
The Equal Protection Clause of the Fourteenth Amendment prohibits the
states from intentionally discriminating between individuals on the basis
of race. Shaw v. Reno, 509 U.S. 630, 642 (1993). "Proof of
racially discriminatory intent or purpose is required to show a violation
of the Equal Protection Clause." City of Cuyahoga Falls v. Buckeye
Cmty. Hope Found., 538 U.S. 188, 194 (2003) (citation and quotes
There are three ways that such intentional discrimination can be shown.
A law or policy that explicitly classifies citizens on the basis of race
is constitutionally suspect and is subject to strict scrutiny. See
Hunt v. Cromartie, 526 U.S. 541, 546 (1999). In addition, a suspect
classification is created when a facially neutral law or policy is
applied differently on the basis of race. See Yick Wo v.
Hopkins, 118 U.S. 356 (1886). Finally, a facially neutral law or
policy that is applied evenhandedly may still violate equal protection if
it was motivated by discriminatory intent and it has a racially
discriminatory impact. See Vill. of Arlington Heights v. Metro.
Hous. Dev. Corp., 429 U.S. 252, 264-65 (1977).
The gravamen of Plaintiffs' equal protection claim
is that the State Defendants
intended to treat white, Hispanic and black
candidates for firefighter differently, not,
admittedly, by giving a different exam to
candidates belonging to different racial and
ethnic groups or by scoring one exam given to all
candidates on different scales, but, more subtly
and insidiously, by redesigning the exam after it
was administered and scored, so as to increase the
number of candidates belonging to favored racial
or ethnic groups in the pool of those who passed,
to eliminate from that pool many otherwise
qualified white male candidates.
(Pls.' Br. at 64.)
The administration and scoring of the 1999 firefighter exam did not
classify candidates on the basis of race. Candidates were evaluated on
the basis of their proficiency in skills deemed necessary for
firefighting. They were not explicitly chosen by race. That the NJDOP
designed and scored the exam in order to diminish the adverse impact on
minority candidates does not in itself constitute an express racial
classification. See Hayden v. County of Nassau, 180 F.3d 42,
48(2d Cir. 1999).
Plaintiffs also cannot establish that the State Defendants administered
the facially race-neutral exam in an intentionally discriminatory
manner. All candidates took the same exam and all exams were scored using
the same scoring key. Cf. id. at 50 ("The police
officers' examination was administered and scored in the same manner for
all applicants."). 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. Each Plaintiff failed the exam
because he failed to achieve a score of 46 or higher on Part II, not
because of his race.
Finally, Plaintiffs cannot show that the 1999 exam, although facially
race-neutral and applied non-discriminatorily, nevertheless had a
racially discriminatory impact on them and was adopted by the State
Defendants with the intent to discriminate. Plaintiffs allege that the
decision to score Part II using only the teamwork data and to set the
cut-off score at 46 discriminated against them based on their race
because those decisions were allegedly motivated by a desire to increase
minority representation on firefighter eligibility lists. As an initial
matter, it seems clear that the NJDOP's decision to score Part II using
only the teamwork data was made before the
administration of the exam. Defendants told Judge Politan at the
June 15, 1999, hearing that only the teamwork data would be scored, and
he approved this scoring method. Defendants concede that the cut-off
score for Part II was determined after the administration of the exam.
The parties dispute whether it was set solely to minimize adverse impact,
though that was admittedly one of Defendant's primary goals. Even so,
teamwork is not racially sensitive. Plaintiffs have not shown that
teamwork skills are unique to or absent from any particular race.
Plaintiffs cannot demonstrate that the State Defendants acted with
discriminatory intent. Though they claim that such intent can be inferred
from the NJDOP's alleged attempt to minimize adverse impact on
minorities, they offer no legal support for this assertion.
Discriminatory intent "implies that the decisionmaker . . . selected
or reaffirmed a particular course of action at least in part `because
of,' not merely `in spite of,' its adverse effects upon an identifiable
group." Personnel Adm'r of Mass. v. Feeney, 442 U.S. 256, 279
(1979), cited in Pryor v. Nat'l Collegiate Athletic Ass'n,
288 F.3d 548, 562 (3d Cir. 2002). "A mere awareness of the consequences of an
otherwise neutral policy will not suffice." Pryor, 288 F.3d at
562 (citing Feeney, 442 U.S. at 277-78). There is no evidence
to suggest that the State Defendants designed the 1999 exam "because of
some desire to adversely affect Plaintiffs or non-minority candidates
generally. Cf. Hayden, 180 F.3d at 51 ("A desire to reduce the adverse
impact on black applicants and rectify hiring practices . . . is not
analogous to an intent to discriminate against non-minority
Plaintiffs' equal protection claims are dismissed.
Plaintiffs assert that their Fourteenth Amendment right to procedural
due process was
violated when the NJDOP refused to allow them access to the biodata
component testing materials as part of their administrative appeals. They
also argue that they had a protected property interest in fair and
job-related testing procedures which was deprived by the NJDOP's
allegedly arbitrary and capricious scoring of the exam.
The Fourteenth Amendment to the United States Constitution prohibits
states from depriving any person of life, liberty, or property, without
due process of law. "[T]he first step in analyzing a procedural due
process claim is to determine whether the asserted individual interests
are encompassed within the fourteenth amendment's protection of life,
liberty, or property." Thomas v. Town of Hammonton, 351 F.3d 108, 113 (3d
Cir. 2003). If protected interests are implicated, the Court must decide
what procedures constitute "due process of law." Robb v. City of
Philadelphia, 733 F.2d 286, 292 (3d Cir. 1984).
Plaintiffs must first show that they had a protected interest. "For the
purposes of the Due Process Clause, property interests are defined by
state law." Larsen v. Senate of the Com. of Pa., 154 F.3d 82,
92 (3d Cir. 1998). "To have a property interest in a benefit, a person
clearly must have more than an abstract need or desire for it. He must
have more than a unilateral expectation of it. He must, instead, have a
legitimate claim of entitlement to it." Board of Regents of State
Colleges v. Roth, 408 U.S. 564, 577 (1972).
Plaintiffs do not have a protected property interest. The gravamen of
Plaintiffs' claims is that they were excluded from the firefighter
eligibility lists without due process. Though Plaintiffs had a desire to
become firefighters, they had no legitimate claim of entitlement. Even a
candidate "who successfully passes an examination and is placed on an
eligible list does not thereby gain a vested right to appointment."
In re Crowley, 193 N.J. Super. 197, 210 (App. Div. 1984).
Plaintiffs did not pass the exam and clearly did not have a protected
interest in being
placed on the eligibility lists. Even if Plaintiffs could show they
had a protected interest, they have not shown that the administrative
procedures available under New Jersey law are inadequate to constitute
due process. "The administrative procedures afforded by . . . the New
Jersey Department of Personnel . . . satisfy the requirements of the
Due Process Clause." Pollock v. City of Ocean City, 968 F. Supp. 187,
191 (D.N.J. 1997) (citing Mathews v. Eldridge,
424 U.S. 319, 334-35(1976)).
Plaintiffs' due process claims are dismissed.
Uniform Guidelines on Employee Selection Procedures
In their Complaints, Plaintiffs allege that the State Defendants
violated provisions of the Uniform Guidelines on Employee Selection
Procedures, 28 C.F.R. § 50.14. The Uniform Guidelines,
however, are merely guidelines established by federal agencies to provide
guidance to agencies and employers and to promote consistency in the
interpretation and enforcement of equal opportunity laws and regulations.
They do not create a cause of action.
Plaintiffs' claims of violations of the Uniform Guidelines
The Rohrberger Declaration
Defendants move to strike the Declaration of Plaintiffs' attorney
Robert J. Rohrberger, which was submitted in support of Plaintiffs'
Cross-Motion for Summary Judgment. Defendants move on the grounds that 1)
the Declaration was untimely submitted; 2) the Declaration and its
enclosures were not served on all counsel; 3) the Declaration concerns
matters of which Rohrberger has no personal knowledge; and 4) the
Declaration contains Rohrberger's opinion and inferences concerning
matters of scientific, technical, or other specialized knowledge about
which he is not qualified to testify.
During a teleconference on September 17, 2003, the Court ruled that
Plaintiffs could submit for the Court's consideration the biodata
component and associated answer key used on the 1999 exam. Defendants
objected to the submission of this information as irrelevant to the
issues before the Court.
Plaintiffs submitted the Rohrberger Declaration on or about October 21,
2003. Attached to the Declaration were the following exhibits: Exhibit 1,
a research version of the biodata component; Exhibit 2, the biodata
component used on the 1999 exam; Exhibit 3, the answer key; Exhibit 4, an
excerpt from Dr. Mitchell's deposition testimony which discusses how the
answer key works; Exhibit 5, a list of the questions that comprise the
physical subpart of the biodata component; Exhibit 6, a list of the
questions that comprise the cognitive subpart of the biodata component;
and Exhibit 7, a list of the questions that comprise the teamwork subpart
of the biodata component. The Declaration itself consists of Rohrberger's
explanation of how to read the answer key and contains a number of
statements apparently based on his understanding of Dr. Mitchell's
Plaintiffs did not serve a copy of the Rohrberger Declaration on
Defendants. Plaintiffs claim that they understood the Court's order to
mean that Defendants were not to be provided a copy of the Declaration or
exhibits unless they specifically requested them. Plaintiffs claim that
pursuant to a request by Barbara Thawley, counsel for the United States,
they provided her with copies of Exhibits 5, 6, and 7. Thawley asserts
that she has not received any of the exhibits.
In light of the Court's order that Plaintiffs could submit the biodata
component and answer key, Defendants do not object to the submission of
Exhibits 1-4. They do object to Exhibits 5-7 and the Declaration itself.
Plaintiffs are required to serve these documents on
Defendants, see Fed.R.Civ.P. 5(a), and the Court
ordinarily would require them to do so. In this case, however, the matter
is moot, as the Court did not consider the Rohrberger Declaration or
exhibits in its decision. The content of the questions in the biodata
component and the answer key is irrelevant to Plaintiffs' claims. This
information is not probative as to any alleged discriminatory intent on
the part of Defendants. Without such intent, Plaintiffs cannot maintain
their equal protection claims. The information also is not probative as
to the existence of Plaintiffs' alleged property interest in being placed
on the firefighter eligibility lists. Without such an interest,
Plaintiffs cannot maintain their due process claims.
Because the Court did not consider the Rohrberger Declaration, the
Motion to Strike is dismissed as moot.
Defendants' Motions for Summary Judgment are granted. Plaintiffs'
Cross-Motion for Summary Judgment is denied. The Motion to Strike is
dismissed as moot.