                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-5-2004

Bishop v. New Jersey
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-1996




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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 03-1996


                      DARIUS D. BISHOP; ERIC BARNES;
                    CHARLES D. BISHOP; WILLIE J. BOOKER;
                  JOHN F. BROWN; SAMUEL EVANS; ALVIN C.
                  FLEMING; TODD HAYES; WILLIAM E. JAMES;
                             CURTIS JOHNSON,
                                          Appellants

                                           v.

                   STATE OF NEW JERSEY; THE NEW JERSEY
                   DEPARTMENT OF PERSONNEL AND MERIT
                              SYSTEM BOARD


             APPEAL FROM THE UNITED STATES DISTRICT COURT
                        FOR THE DISTRICT OF NEW JERSEY
                              D.C. Civil No. 02-cv-05458
              District Judge: The Honorable John W. Bissell, Chief Judge


                             Argued November 20, 2003


              Before: RENDELL, BARRY, and MAGILL,* Circuit Judges


                            (Opinion Filed: January 5, 2004)




   *
     The Honorable Frank J. Magill, Senior Circuit Judge, United States Court of Appeals
for the Eighth Circuit, sitting by designation.
Paul I. Weiner, Esq. (Argued)
Weiner & Katz
301 South Livingston Avenue
Suite 101
Livingston, NJ 07039

Attorney for Appellants


Barbara A. Berreski, Esq. (Argued)
P.O. Box 112
Office of Attorney General of New Jersey
Division of Law
Richard J. Hughes Justice Complex
Trenton, NJ 08625

Attorney for Appellees




                                         OPINION




BARRY, Circuit Judge

                                    I. BACKGROUND

       The parties are familiar with the facts of this case, and, thus, we will provide but a

brief summary of those facts at the outset, incorporating additional facts only as necessary

to our discussion of the issues.

       Plaintiffs/appellants are African-American firefighters, employed by the Newark

Fire Department. In 2000, each plaintiff took the New Jersey Department of Personnel

Fire Lieutenant/Fire Captain promotional examination, an exam administered by the



                                              2
    State. On April 12, 2001, the results were released when the list of successful applicants

    eligible for promotion was promulgated by the New Jersey Department of Personnel and

    Merit System Board. Of the 287 men and women who took the exam, 129 passed and

    were listed in order of their score, from highest to lowest. Municipalities use this list to

    promote firefighters on the list in the order in which they are ranked as positions become

    available. The list is valid and in use until it expires on April 3, 2004.

           Plaintiffs Darius Bishop, Alvin Flemming, and John Brown each passed the exam,

    and were ranked 66, 56, and 93 respectively. 1 Plaintiffs claim that the format and

    administration of the exam discriminated against minorities as evidenced by the

    disproportionately low numbers of minorities who passed the exam and the

    disproportionately lower ranking of those minorities who passed.

           On April 12, 2001 (the day that the eligibility list was promulgated), Bishop filed

    an administrative appeal with the Merit System Board/Department of Personnel

    challenging the format and the administration of the exam. On January 21, 2002,

    plaintiffs filed a Charge of Discrimination with the EEOC against the Newark Fire

    Department only, alleging that the exam unlawfully operated to exclude them based upon

    race. On April 9, 2002, the EEOC issued to Bishop a Right to Sue letter with respect to




       1
1       These three are the only plaintiffs appealing the District Court’s order. The other
2   plaintiffs failed the examination, and it is clear that the statute of limitations has run as to
3   them. See Bronze Shields, Inc. v. New Jersey Dep’t of Civil Serv., 667 F.2d 1074 (3d
4   Cir. 1981).

                                                   3
his charge against the Newark Fire Department.

       On May 7, 2002, plaintiffs filed their first complaint in the U.S. District Court for

the District of New Jersey against the State of New Jersey and the New Jersey

Department of Personnel and Merit System Board (“State Defendants”), and against the

City of Newark and the Newark Fire Department (“City Defendants”), alleging violations

of the Civil Rights Act of 1866, 42 U.S.C. § 1981 (“§ 1981”); Title VII of the Federal

Civil Rights Act, as amended, 42 U.S.C. § 2000e, et seq. (“Title VII”); and the Uniform

Guidelines on Employee Selection Procedures issued by EEOC.2 This complaint alleged

that the nature and administration of the exam disproportionately excluded plaintiffs from

promotion because of their race.

       On June 3, 2002, Bishop’s administrative appeal to the Merit System Board was

denied. On July 9, 2002, defendants in the first action filed motions to dismiss, claiming

sovereign immunity and plaintiffs’ failure to exhaust administrative remedies. On August

2, 2002, plaintiffs filed a Charge of Discrimination with the EEOC against the State

Defendants, alleging that the exam had a disparate impact on plaintiffs, that the results

were defective, and that plaintiffs were discriminated against in the preparation,

administration, and validation of the exam.

       On September 26, 2002, the District Court granted the State Defendants’ motion to



   2
    Plaintiffs also alleged violations of a 1980 Consent Decree between the City of
Newark and the U.S. Department of Justice (“Consent Decree”), and violation of the New
Jersey Law Against Discrimination, N.J. S TAT. A NN. § 10:5-1, et seq. (“LAD”).

                                              4
dismiss plaintiffs’ first action as to them, and granted in part and denied in part the City

Defendants’ motion to dismiss. Most relevant to this appeal, the District Court dismissed

plaintiffs’ Title VII claim against the State Defendants because plaintiffs failed to name

them in their first Charge of Discrimination filed with the EEOC.3 Claims against the

City Defendants remain pending in the first action.

          On October 9, 2002, the EEOC issued to plaintiffs a Right to Sue letter with

respect to the State Defendants. On November 14, 2002, plaintiffs filed their Complaint

(“Complaint”) in this action against the State Defendants, alleging violations of Title VII,

LAD, § 1981, and the Consent Decree. Plaintiffs noted that they filed a Charge of

Discrimination with the EEOC within 300 days of the last commission of the

discriminatory employment practice – namely, the promotion of applicants from the

eligibility list on July 20, 2002.

          On December 18, 2002,4 the State Defendants moved to dismiss the Complaint.

On March 11, 2003, the District Court granted the State Defendants’ motion, concluding

that plaintiffs had not filed a charge with the EEOC within 300 days of the alleged



   3
    The District Court also dismissed plaintiffs’ EEOC Guidelines claim because the
guidelines do not provide an independent cause of action; dismissed plaintiffs’ Consent
Decree claims for lack of standing because they were not parties to that decree; dismissed
plaintiffs’ § 1981 claim against the State Defendants on the ground of Eleventh
Amendment immunity, but sustained their § 1981 claim against the City Defendants; and
dismissed plaintiffs’ LAD claims against the State Defendants while sustaining those
claims against the City Defendants.
   4
       Plaintiffs claim in their brief to us that this motion was filed on January 28, 2003.

                                                 5
discriminatory act, as mandated by 42 U.S.C. § 2000e-5(e)(1); that plaintiffs were not

entitled to equitable tolling while Bishop’s administrative appeal was pending; and that

the use of the eligibility list was not a continuing violation.5

          Plaintiffs Bishop, Flemming, and Brown now appeal. We must decide from which

date the 300 day statute of limitations for plaintiffs to file their charge with the EEOC

should run: the date of the promulgation of the eligibility list, or the later dates of either

the most recent round of promotions or the date on which the list will expire.6

          The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343, and

had supplemental jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367.

We have jurisdiction pursuant to 28 U.S.C. § 1291.




                                        II. DISCUSSION

          Our review of the District Court’s dismissal of a cause of action for failure to state

a claim as time-barred is plenary. See, e.g., Anderson v. Consol. Rail Corp., 297 F.3d

242, 251 (3d Cir. 2002).

          Plaintiffs argue that the promotions and ongoing validity of the eligibility list (until

it expires in April 2004) are continuing discriminatory acts, and therefore a continuing


   5
    The District Court also dismissed plaintiffs’ § 1981 claim under the doctrine of res
judicata because it had dismissed that claim in the first action and plaintiffs did not brief
the issue when the motion to dismiss was pending. It dismissed plaintiffs’ LAD claim
because it had dismissed all federal claims against the defendants.
   6
       Plaintiffs do not address the tolling issue in their briefs, and we do not reach it.

                                                  6
violation of Title VII. They argue that each promotion they do not receive is a separate

discriminatory act which triggers the running anew of the statute of limitations within

which they must file a charge with the EEOC. Defendants argue that these promotions

and the ongoing validity of the eligibility list are merely the non-discriminatory effects of

the alleged discriminatory format and administration of the exam, which culminated in

the promulgation of the list. We agree with defendants and the District Court, and hold

that the statute of limitations had run by the time plaintiffs filed their charge against the

State Defendants with the EEOC.7

       Whether viewed separately or together, Bronze Shields, Inc. v. New Jersey Dep’t

of Civil Serv., 667 F.2d 1074 (3d Cir. 1981), and Delaware State College v. Ricks, 449

U.S. 250 (1980) mandate our decision. In Bronze Shields, the plaintiffs were seeking to

become Newark police officers and took a written exam administered by the New Jersey

State Department of Civil Service. If they passed the exam, they would have been placed

on an eligibility roster in the order in which they scored. When Newark needed to hire

new police officers, it would screen applicants on this roster, starting with the applicant

with the highest score; applicants who passed the screening were hired. Plaintiffs either



   7
    The parties have briefed whether the State and City Defendants can be considered
alter egos such that we should attribute to the State Defendants responsibility for the
promotions made by the City Defendants. The District Court thought legitimate questions
of fact existed with respect to this issue, and did not rule on it. But even if the State
Defendants are deemed responsible for the promotions, these promotions, as we will
explain, were the neutral effects of the alleged discriminatory acts, and so cannot serve as
triggering dates for the statute of limitations.

                                               7
failed the exam or some aspect of the screening process, and sued the State and the City

for having violated Title VII.

       The District Court dismissed the complaint because plaintiffs had not filed their

charge with the EEOC within the statute of limitations – there, 180 days from the

promulgation of the list. On appeal, plaintiffs argued that the eligibility roster was a

continuing violation of Title VII for as long as it was in effect and, therefore, that their

charge to the EEOC was timely because it was filed during the roster’s effective period.

We rejected that argument, and held that plaintiffs did not allege that Newark “would

have followed anything but a neutral, non-discriminatory procedure in hiring from the

list.” Id. at 1083. The promulgation of the list was the only allegedly discriminatory act,

and the continuing effectiveness of the list constituted merely a neutral effect of that act.

Consequently, the charge filed with the EEOC was untimely, and we affirmed the District

Court’s dismissal of the complaint.

       In Bronze Shields, we relied on the Supreme Court’s decision in Ricks, in which

the Court refused to apply the continuing violation theory. Ricks was a professor who

had been denied tenure, and was instead offered a one-year terminal contract, after which

his employment would be terminated. Ricks, 449 U.S. at 252-53. The District Court

concluded that the statute of limitations for filing a charge with the EEOC began on the

date Ricks was offered the terminal contract, not, as Ricks had argued, when the terminal

contract expired. We reversed, but the Supreme Court reversed us, holding that to



                                               8
determine the timeliness of an EEOC complaint, a court must “identify precisely the

‘unlawful employment practice’ of which (plaintiff) complains.” Id. at 257.

       “In order for the limitations periods to commence with the date of
       discharge, Ricks would have had to allege and prove that the manner in
       which his employment was terminated differed discriminatorily from the
       manner in which the College terminated other professors who also had been
       denied tenure.”

Id. at 257-58. Ricks made no such allegation. The Supreme Court also held that because

Ricks’ termination was carried out in a neutral, non-discriminatory manner, the statute of

limitations began to run when the termination decision was made and communicated to

Ricks, “even though one of the effects of the denial of tenure – the eventual loss of a

teaching position – did not occur until later.” Id. at 258. Applying Ricks in Bronze

Shields, we concluded that the promulgation of the eligibility roster was the last allegedly

discriminatory act by the defendants. Bronze Shields, 667 F.2d at 1083-84.8

       Bronze Shields and Ricks compel our rejection of the continuing violation theory



   8
     We recently applied Ricks in Watson v. Eastman Kodak Co., 235 F.3d 851 (3d Cir.
2000). The plaintiff, Watson, received a letter stating that he was being terminated from
his current position, and that he would be terminated from Kodak entirely if he did not
find another position at Kodak within one month. Watson filed his EEOC charge within
300 days of his actual discharge, but not within 300 days of the receipt of the termination
letter. Applying Ricks, we held that Watson’s receipt of the termination letter was the act
of discrimination that triggered the 300-day statute of limitations. Even though Watson
may have stayed at Kodak if he found another position, his allegation of discrimination
was with respect to losing the specific position he had held. Because the termination
letter was unequivocal as to Watson losing this position, receipt of that letter was the
triggering act. As in Watson, plaintiffs here identify the specific discriminatory act – the
design and administration of the exam, and the promulgation of the list – from which the
statute of limitations runs.

                                             9
in this case. The discriminatory act that plaintiffs allege is the design and administration

of the exam and the concomitant promulgation of the eligibility list.9 The neutral use of

the list by municipal fire departments is merely the effect of the alleged discriminatory

exam. Therefore, the statute of limitations began running on the date that the eligibility

list was promulgated.

       Plaintiffs’ argument that this case is different from Bronze Shields because the

plaintiffs in that case failed the exam, whereas Bishop, Flemming, and Brown passed, is

unpersuasive. Because these plaintiffs passed, their argument goes, the ongoing validity

of the list until its expiration date, and the promotions made based upon it, constitute a

continuing violation because plaintiffs are now stuck with their low ranking on that list

and have no non-discriminatory avenue by which to seek a promotion. To require them to

have filed their EEOC complaints 300 days after the promulgation of the list, but while

they still remained on the eligibility list, could result in their being promoted after the

filing of their charges and/or their lawsuit – a waste of judicial resources. Better, they

contend, to wait until the last discriminatory act – whether that be the most recent round




   9
    Neither the charge filed with the EEOC, nor the Complaint, allege that the manner in
which individuals were promoted from the list when vacancies arose was discriminatory.
To the contrary, the Complaint alleges that the “disparate impact of the 2000 examination
continues up to the present. On or about July 20, 2002, thirteen additional promotions
were made utilizing the defective promotion list.” Complaint at ¶ 41 (emphasis added).
Only in their Reply Brief do plaintiffs suggest – albeit it without explanation – that the
promotions themselves were discriminatory. This suggestion is both belated and bereft of
support.

                                              10
of promotions, or the failure to have promoted them when the list expires – to begin

running the statute of limitations. While we appreciate plaintiffs’ concern for the

conservation of judicial resources, that concern does not transform neutral effects into

discriminatory acts.

       The Sixth Circuit has come to the same conclusion we do. In Cox v. City of

Memphis, 230 F.3d 199 (6th Cir. 2000), the plaintiffs were white female police officers

who passed a promotions examination, were placed on the eligibility list, but were never

promoted. They claimed that the administration of the exam was discriminatory in

violation of Title VII, but the EEOC dismissed their charges because they had not been

filed within 180 days of the promulgation of the list. The Sixth Circuit evaluated the

plaintiffs’ continuing violation theory in light of their passing the exam, and concluded

that the promotions of others or the failure of plaintiffs to be promoted were the effects of

previous discrimination, and not continuing acts of discrimination themselves. The Court

emphasized, in response to plaintiffs’ argument that the fact that they passed the exam

distinguished them from the plaintiffs in Bronze Shields who failed, that

       the mere possibility that one will be hired or promoted despite an allegedly
       discriminatory ranking does not mean that the failure to promote or hire
       should be treated as a discriminatory act separate from the original act of
       discrimination .... the assignment of an allegedly discriminatory ranking is
       the relevant discriminatory act even where the low ranking is not a “certain
       prelude” to an adverse employment action.

Cox, 230 F.3d at 205 (quoting Huels v. Exxon Coal USA, Inc., 121 F.3d 1047, 1051 (7th

Cir. 1997)). We agree with both the Sixth Circuit’s reasoning and its conclusion.

                                             11
                                    III. CONCLUSION

       In sum, we reject plaintiffs’ contention that the continuing violation doctrine

applies. Plaintiffs do not allege any discriminatory acts related to the selection of names

from the eligibility list for promotion. These promotions were neutral, non-

discriminatory effects of the promulgation of the eligibility list. Because plaintiffs’

EEOC charge was not filed within 300 days of this promulgation, it was time-barred.

       The Order of the District Court will be affirmed.




TO THE CLERK OF THE COURT:

       Kindly file the foregoing Opinion.


                                            /s/ Maryanne Trump Barry
                                            Circuit Judge




                                              12
