Appeal from the United States District Court for the District of New Jersey. (D.C. Nos. 00-cv-5725; 00-cv-5813; 01-cv-2621). District Judge: The Honorable William H. Walls.
The opinion of the court was delivered by: Aldisert, Circuit Judge.
Before: SLOVITER, FISHER and ALDISERT, Circuit Judges
This appeal from summary judgment entered by the United States District Court for the District of New Jersey requires us to decide whether the entry-level firefighter examination administered by the New Jersey Department of Personnel (the "Department") in 1999 and 2000 (the "1999 Exam") violated the rights of Appellants Daniel Antonelli, et. al., under the Equal Protection Clause of the Fourteenth Amendment. Appellants are 27 individuals who failed the 1999 Exam because they did not achieve the cut-off score on a portion of the Exam.
Appellants contend that the 1999 Exam, which was designed to diminish the adverse impact on minority candidates, had a racially discriminatory impact on non-Hispanic Caucasian candidates. The District Court held that New Jersey did not act with discriminatory intent and that the 1999 Exam did not have a racially discriminatory impact. See Antonelli v. New Jersey, 310 F. Supp. 2d 700, 714-716 (D.N.J. 2004). We will affirm.
In 1977, the United States filed a complaint in United States v. New Jersey, alleging that New Jersey and twelve cities were engaged in employment discrimination by denying equal employment opportunity to African-American and Hispanic applicants for entry-level firefighter positions. In 1980, the District Court entered a Consent Decree requiring the State and cities to undertake affirmative action to increase the proportion of African-American and Hispanic personnel in their fire departments. In 1990, the Court entered a Supplemental Consent Order.
Thereafter, the Department designed the 1999 Exam which consisted of three components: (1) Part I, a multiple-choice cognitive test designed to assess the ability to read and perform basic math (the "cognitive component"); (2) Part II, a biographical questionnaire (the "biodata component"); and (3) Part III, a physical performance test (the "physical component"). Appellants contend that the method used by New Jersey to administer and score the biodata component violated their rights under the Equal Protection Clause.
Dr. Terry Mitchell designed the biodata component. He identified three broad categories of characteristics to be used in evaluating candidates: physical performance; cognitive performance; and teamwork. These three elements comprised the biodata component and it was Dr. Mitchell's understanding that the entire biodata component would constitute one-third of the overall exam score.
At a June 15, 1999 hearing before then-District Judge Politan, the principal issue was how the three components of the 1999 Exam should be weighed. Antonelli, 310 F. Supp. 2d at 707. 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." On July 30, 1999, Judge Politan ordered that "[t]he cognitive, teamwork and physical 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 Department administered the cognitive and biodata components of the Exam in November 1999 and the physical component in early 2000. The same exam was given to all candidates and the exams were scored using the same key. All candidates were required to achieve the same minimum cut-off score. To set the minimum cut-off scores, the Department analyzed whether various cut-off scores would have an adverse impact on candidates because of race or sex. The Department used the "four-fifths rule:" a selection rate for any race or sex that is greater than four-fifths the rate of the group with the highest rate will generally be regarded as evidence of no adverse impact. 28 C.F.R. § 5014 (2004). The cut-off rates so established resulted in a passing rate.
In June 2000, Judge Politan granted the State's motion for approval of the 1999 Exam. In January 2000, the Department informed Dr. Mitchell that he should prepare separate scores for each sub-part of the biodata component. The Department intended to score only the teamwork portion of the biodata component. Dr. Mitchell, however, objected to the use of only the teamwork questions and refused to write a report validating the results of the biodata component. Id. at 707-708.
When the candidates received their final scores, they also received a pamphlet explaining how the biodata component was scored and that "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." Id. at 708.
This action arose from three actions consolidated into one case. The Appellants are 27 individuals who failed the 1999 Exam because they each scored less than a 46 (the cut-off score) on the biodata component. All but two of them describe themselves as non-Hispanic white or Caucasian. The New Jersey State Firemen's Mutual Benevolent Association ("FMBA") is one of several fire service labor organizations in New Jersey. None of the individuals who took the 1999 exam were FMBA members.
The Appellants allege that the State, the Department and its officials ("Appellees") violated their rights to due process and equal protection, their rights under 42 U.S.C. § 1983 and their rights under the New Jersey Constitution and New Jersey civil service law. The Appellants also allege that the Appellees violated the Consent Decrees and the July 30, 1999 Order. The FMBA's Complaint contained similar allegations. ...