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LOMACK v. CITY OF NEWARK

August 24, 2005.

CHARLES LOMACK; HAROLD J. BANE, JR.; RAMON DOMINGUEZ; JAMES P. WILLIS; KEVIN L. JOHNSON; PAUL T. MAZZA; KENNETH REEDS; GARY HOLMAN; LUTHER ROBERSON, III; GERRELL ELLIOTT, CLARENCE R. BRUTON; JAMES GILES; DEAN GATTI; PETER J. COONEY; JOHN P. MELANI; GREGORY HIGHSMITH; JUAN H. RAMOS; DAYON COBBS; DEBLIN RODRIGUEZ; RAMON RIVERA; CHARLES H. WEST; SCOTT WOLF; WILFREDO RIVERA; KARREEM JACKSON; JOHN BROWN; WYNDELL COOPER; SHANNON McTIGHE; ASHTON ROBINSON; MARK PISERCHIO; CHRIS DEMURO; NEWARK FIREFIGHTERS UNION; ERIC BARNES; EDWARD GRIFFITH; LEWIS MANNING and FRANK ZIDZIUNAS, Plaintiffs,
v.
CITY OF NEWARK, SHARPE JAMES, EDWARD DUNHAM, LOWELL F. JONES and NORMAN J. ESPAROLINI, Defendants.



The opinion of the court was delivered by: JOHN BISSELL, Chief Judge, District

OPINION

HISTORY

This action has historical origins at least fifty years old. In the wake of World War II as more and more African-Americans migrated to northern cities, such as Newark, N.J., racial tensions between them and Newark's then predominantly white population escalated. Those tensions reached a flashpoint in the riots of July 1967, from which many neighborhoods in Newark have not yet recovered. The conflicts between ethnic groups generated many inequities and illegal policies which, eventually, the courts were required to address. Regrettably, racial discrimination in public employment manifested itself in many New Jersey cities, for example in their fire departments. This condition led the United States to file suit against the State of New Jersey and several cities to eliminate such practices in fire departments. United States v. State of New Jersey, et al, Civ. No. 77-2054, 79-184. That action was concluded by a Consent Decree (Exh. D-10) dated May 30, 1980, which provided, inter alia:
1. The defendants are compelled by law and by entering into this Order acknowledge their obligation to, and agree they shall, refrain from engaging in any act or practice which has the purpose or effect of unlawfully discriminating against any black or Hispanic employee of, or any black or Hispanic applicant or potential applicant for employment with their respective fire departments because of such individuals' race, color, or national origin. Specifically the defendants shall not discriminate against any such individual in hiring, assignment, training, discipline, promotion or discharge because of race, color, or national origin. Further, defendants shall not retaliate against or in any respect adversely affect any person because that person has opposed discriminatory policies or practices or because of that person's participation in or cooperation with the initiation, investigation or litigation of any charge of discrimination based on race or national origin, or the administration of this Order. Remedial actions and practices required by the terms or permitted to effectuate and carry out the purpose of this Order shall not be deemed discriminatory within the meaning of 42 U.S.C. 2000e-2(a).
(Emphasis added). In paragraph 3(d) of the Consent Decree, Newark acknowledged a goal "to fill at least sixty (60) percent of all vacancies [for entry level firefighters] with qualified minority applicants." To be sure the primary focus of the Consent Decree is on the testing of applicants and the hiring of minorities, but its plain language also encompasses discriminatory assignments of firefighters, the gravamen of the case at bar.

  Events Preceding Institution of this Suit

  In 1995, the City of Newark commissioned two reports to examine the performance of the Newark Fire Department in the 15 years of operation under the Consent Decree. The Reports were authored by Lezli Baskerville, Esq., an attorney practicing in Washington, D.C. ("D-13" or "Baskerville Report") and Rosenfarb & Co. CPAs of Roseland, N.J. and New York City ("D-14" or "Rosenfarb Report"). Each of these reports was submitted to the Newark City Council in December 1995.

  Ms. Baskerville's conclusions included the following:
There are numerous firehouses in the City that are segregated by race. The belief is that the segregation is deliberate. Examples were cited of the following all African American companies with African American officers in command: Engine Company Nos. 7, 12, 15, 17, 19 & 29; Truck Company Nos. 7 and 10. Additionally, the following all African American companies with white officers in command were cited as examples of the pervasive discrimination: Engine Company Nos. 8, 13, 27, 29; and Truck Company Nos. 1, 4, and 6. Examples were also cited of firehouses with at least one all white tour: Engine Company Nos. 6, 9, 14, 16, 17 and 19; Truck Company Nos. 1, 5, 8, 10, 11. (D-13 at p. 17).
  The Rosenfarb Report focused on segregated tours in firehouses, providing charts reflecting the ethnic makeup (white, black, Hispanic) of each of the 108 tours identified. The Report included graphs as Exhibits D-1 through D-20 depicting the ethnicity of each member of each tour. (D-14 at Exhs. D-1 through D-20). Summarizing those graphed findings, the Rosenfarb Report stated:
 
Exhibits D-1 through D-20 set forth the tour compositions of each firehouse on August 2, 1995. The information the Department provided to us described 108 tours. Eighty-one of the tours had a majority of white personnel, with 30 being comprised entirely of white personnel. Fifteen of the firehouse tours were predominantly black. Only one tour had a majority of hispanics. The remaining eleven tours did not contain a majority of any one group. The tours consisted of both firefighters and captains.
Actually, that summary is somewhat understated in that of the tours described as "predominantly black", eight (or more than one-half) were comprised of entirely black personnel. (Id.)*fn1
  One cannot speculate as to why the City of Newark did not respond promptly to this issue of segregated firehouses. Perhaps its Counsel were uncertain as to how to proceed in the wake of the United States Supreme Court's decision in Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995). Perhaps other features of these reports such as those criticizing the lack of outreach to encourage applicants, alleged circumvention of residency requirements, and failure to attain a sufficient total number of minority firefighters, consumed more time and attention in the years following 1995. Nevertheless, Mayor Sharpe James, at his re-inauguration speech on July 1, 2002, made it clear that segregated firehouses should disappear from the landscape of Newark. In his words:
Our Fire Department will face a mandate to integrate our fire houses to improve morale. It is inexcusable that [in] the year 2002 we still have segregated fire houses in the City of Newark, and to give firefighting and community services a higher priority than politics. To lead this charge, to lead this charge a true professional firefighter Former Fire Chief Edward Dunham will serve as Director of the Newark Fire Department. Ed is a career fire officer who joined the Department in 1970 and worked his way through the ranks to Captain before being named Fire Chief in 1998. Since his retirement in 2000 he has been the Department's Affirmative Action Specialist both during active service and in his current position during retirement. He has been the prime mover of efforts to recruit and train minority personnel for the Department. We plan to make our Fire Department the best in America and to honor a court order to make our Fire Department the mirror of the City of Newark, Mr. Ed Dunham.
(Exh. P-1).
  Mr. Dunham determined that a policy of transfers between firehouses was a sound way to accomplish their desegregation. On November 27, 2002 he wrote to Fire Chief Lowell Jones as follows:
"You are directed to formulate a mass departmental transfer list throughout Fire Suppression Operations.
This transfer list shall include the following:
1. Reflect the diversity of the department; and
2. Assignment of Roving Probationary Firefighters.
You are to have this list completed and forwarded to this office on or before December 31, 2002."
(Exh. P-3).

  Chief Jones' Department Transfer List, Exh. P-4, was crafted as that exhibit explains;*fn2 however, it did not attain the goal of integration which Dunham was pursuing. Accordingly, Fire Director Dunham asked Battalion Chief Raymond L. Wallace to generate a transfer list which would attain that goal. Wallace did so, presenting such a list with an explanation of its origins on January 13, 2003. That list (Exh. P-5) is also attached to this Opinion. Wallace's methodology bears repeating here, particularly in light of the strict scrutiny which this affirmative action program must survive. After reviewing the transfer list submitted by Fire Chief Jones as requested by you, I note the directive as to have diversity throughout the Newark Fire Department has not been achieved. if Chief Jones transfer list were to be used, there would be 14 companies all Caucasion and 10 companies African American. (see Jones list) This list does not meet the directive and is unsatisfactory.

 
I propose a solution that would meet the mandate of diversity for all fire crews within the Department. (see 100% diversity) This would require transfers of department members to meet the objective. The transfers would be consistent across the Department, as the firefighter with the least seniority would be transferred. Some of these transfers would be made within the same firehouse, changing tours. Others would be transferred within the Battalion when possible. Be assured that every effort was made to minimize the impact on the affected firefighter.
(Emphasis in original.)

  On January 15, 2003, in Executive Order No. 426 (Exh. P-6)*fn3 Director Dunham announced the list of transfers (consistent with Wallace's memorandum) "effective at 0800 hours on Friday, January 31, 2003." This was a unique event in the Newark Fire Department since transfers in the past had been predominantly voluntary with a significant role being played by the plaintiff unions in the granting or denial of transfer requests. As the year 2004 began, Director Dunham and Mayor James were able to announce that all of Newark's fire companies had been integrated. Several of the plaintiffs instituted EEOC claims of race discrimination based upon this implementation of integration through the transfers policy, receiving right to sue letters on or about November 2, 2004. (Second Amended Complaint at 45-46). The present lawsuit, filed on December 14, 2004, soon followed.

  The Complaint*fn4

  Asserting that 24 firefighters were involuntarily transferred out of their present companies, and five were denied requests to transfer, due to the new diversity policy, and seeking to avoid similar transfers in late 2004 and early 2005, plaintiffs have brought the present lawsuit alleging violation of the right of equal protection under the Constitution of the United States, violation of civil rights through state action per 28 U.S.C. § 1983, and race discrimination ...


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