                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-17-2005

Antonelli v. State of NJ
Precedential or Non-Precedential: Precedential

Docket No. 04-2573




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http://digitalcommons.law.villanova.edu/thirdcircuit_2005/598


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                                PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT

                  No. 04-2573


   DANIEL ANTONELLI; PATRICK M. BASIL; APRIL
    BELO; FREDERICK P. BENDER, III; EDWARD J.
     BENENATI, JR.; SCOTT BRONCO; JOSEPH F.
    CAVALIERI; PATRICK CERNIGLIA; ROBERT M.
   CHAMBERLAIN; DEREK COHEN; RAYMOND A.
CROSS; FRANCK DANIEL; SHAWN A. DEPOE; DENNIS
  DOWHY; DAVID FIORE; MICHAEL P. HALLAHAN;
  SCOTT PATRICK HENDERSON; PETER T. HENNEN;
 JEFFREY L. IANNACONE; JOSEPH A. IVANICKI, JR.;
  JASON JASOVSKY; ENOT MEDINA, JR.; MICHAEL
MITCHELL; ANTHONY MONGUSO; JUSTIN A. PELKA;
 KARL M. PETERSON; STEVEN B. POLUMBO; JASON
PUSER; BRENDAN RHODES; CHRISTOPHER O. RILEY;
 BRIAN SCHMITT; DANIEL C. SHERIDAN; ROBERT B.
  SINTON; CHRIS A. SMITH; DENNIS STEINBERGER;
RAYMOND J. TANIS; JOSEPH TAYLOR, JR.; MICHAEL
   S. WOHL; DANIEL ZUENA; NEW JERSEY STATE
 FIREMEN’S MUTUAL BENEVOLENT ASSOCIATION
              (D.C. Civil No. 00-cv-5725)

                       v.

   STATE OF NEW JERSEY; UNITED STATES OF
   AMERICA; JANICE MITCHELL MINTZ; HENRY
MAUER; LEWIS A. SCHEINDLIN; JOHN L. KRAUS, JR.;
ARTHUR E. BROWN, JR.; LINDA G. ROBINSON; JOHN
DOE; JOHN KRAUS; TERRY MITCHELL; eSELEX, INC.


      NEW JERSEY STATE FIREMEN’S MUTUAL
           BENEVOLENT ASSOCIATION
               (Civil No. 00-cv-5813)

                           v.

    STATE OF NEW JERSEY; UNITED STATES OF
                  AMERICA


  MARK DEEGAN; PAUL FIGUEROA; TERRENCE D.
   MAISANO; KATHERINE F. MATOS; JEAN-PAUL
  OLIVIERI; ANGELO RIZZOLO; CHRISTOPHER T.
            SAMONA; MARK R. SMITH
               (D.C. Civil No. 01-cv-2621)

                           v.

     STATE OF NEW JERSEY; JANICE M. MINTZ,
     COMMISSIONER OF THE DEPARTMENT OF
      PERSONNEL; JOHN DOES 1 THROUGH 5;
          UNITED STATES OF AMERICA




Scott Bronco, Raymond A. Cross, Derek Cohen, David Fiore,

                           2
   Michael P. Hallahan, Scott Patrick Henderson, Jeffrey L.
     Iannacone, Enot Medina Jr., Jason Jasovsky, Karl M.
 Peterson, Steven B. Polumbo, Jason Puser, Brendan Rhodes,
 Daniel C. Sheridan, Dennis P. Steinberger, Ronald J. Tanis,
Joseph Taylor, Jr., Michael S. Wohl, and Daniel Zuena
                         Appellants

       * (Amended - See Clerk’s Order dated 8/10/04)


        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


                   Argued: June 29, 2005

      Before: SLOVITER, FISHER and ALDISERT,
                    Circuit Judges

                  (Filed: August 17, 2005)


Robert J. Rohrberger (Argued)
Craig S. Gumpel
Benjamin Benson
FOX AND FOX LLP
70 South Orange Avenue
Livingston, New Jersey 07039
       Attorneys for Appellants

                             3
Lisa J. Stark (Argued)
R. Alexander Acosta, Assistant Attorney General
Dennis J. Dimsey
Sarah Harrington
Conor Dugan
Department of Justice
Civil Rights Division
Appellate Section
Ben Franklin Station
P.O. Box 14403
Washington, D.C. 20044-4403
        Attorneys for Appellees

Lisa D. Ruch (Argued)
Peter C. Harvey, Attorney General of New Jersey
R.J. Hughes Justice Complex
25 Market Street
P.O. Box 112
Trenton, New Jersey 08625
       Attorneys for Appellees


                OPINION OF THE COURT


ALDISERT, Circuit Judge.

       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

                             4
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.

                               I.

        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

                               5
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

                                6
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

                                7
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. The United
States was named as a necessary party pursuant to Rule 19 of the
Federal Rules of Civil Procedure.

       The Appellees each brought a Motion for Summary
Judgment and the Appellants brought a Cross-Motion for
Summary Judgment. The District Court granted the Appellees’
motion and denied the Appellants’ cross-motion. The court held,
inter alia, that: (1) the FMBA lacked standing; (2) the
Appellants lacked standing to enforce the Consent Decrees and
the July 30, 1999 Order; (3) except for the § 1983 claims against
the New Jersey officials sued in their official capacities for
prospective relief, the Appellants’ remaining claims are barred
by New Jersey’s sovereign immunity; (4) Appellants cannot
establish a violation of the Equal Protection Clause or the Due
Process Clause of the Fourteenth Amendment; and (5) the
Uniform Guidelines on Employee Selection Procedures do not
create a cause of action.



                               8
                              II.

      The District Court had jurisdiction pursuant to 28 U.S.C.
§ 1331. We have jurisdiction over the appeal pursuant to 28
U.S.C. § 1291.

       We review a district court’s order granting summary
judgment de novo, applying the same test as the district court
under Federal Rule of Civil Procedure 56(c). See Morton In’l,
Inc. v. A.E. Staley Manuf. Co., 343 F.3d 669, 679 (3d Cir.
2003). Summary judgment is appropriate if the evidence shows
that there is no “genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of law.”
Rule 56(c), Federal Rules of Civil Procedure. The court does
not weigh the evidence or assess its truth but simply determines
whether or not there is a genuine issue for trial. Anderson v.
Liberty Lobby, 477 U.S. 242, 249 (1986). In making this
determination, the court must view the facts in the light most
favorable to the non-moving party, and makes all reasonable
inferences in its favor. Id. at 256.

                              III.

       The heart of this appeal is whether the 1999 Exam
administered by the Department violated Appellants’ rights
under the Equal Protection Clause of the Fourteenth
Amendment. In its comprehensive opinion, the District Court
addressed other issues, including whether the FMBA had
standing and New Jersey waived sovereign immunity. We will
affirm the District Court’s analysis on these issues and briefly
discuss each in turn.

                               9
                                 A.

        The District Court correctly held that the Eleventh
Amendment barred the Appellants’ claims against the State and
state officials except for the § 1983 claims against Department
officials sued in their official capacities for prospective
injunctive relief. Antonelli, 310 F. Supp. 2d at 712. The State
did not waive its sovereign immunity under the Consent
Decrees. See Bennett v. Atlantic City, 288 F. Supp. 2d 675, 682-
683 (D.N.J. 2003) (holding that the State had not waived its
sovereign immunity under consent decrees because the decrees
did not evidence the explicit waiver needed to subject the State
to the court’s jurisdiction for federal civil rights claims).

                                 B.

        The District Court correctly held that the Appellants do
not have standing to enforce the Consent Decrees or the July 30,
1999 Order because they were not parties to the Consent
Decrees or Order, the Consent Decrees do not contemplate such
action and the Appellants were not intended beneficiaries of
either. See Blue Chip Stamps v. Manor Drug Stores, 421 U.S.
723, 750 (1975) (“[A] consent decree is not enforceable directly
or in collateral proceedings by those who are not parties to it
even though they were intended to be benefitted by it.”);
Cicirello v. N.Y. Tel. Co., 123 F.R.D. 523, 526 (E.D. Pa. 1989)
(indicating that it is necessary to look to the consent decree itself
to see whether it contemplates enforcement by non-parties).




                                 10
                              C.

       The District Court correctly held that we do not have
jurisdiction over the FMBA’s claims because it lacks standing.
See Antonelli, 310 F. Supp. 2d at 710-711 (concluding that the
FMBA did not have standing because it did not establish a
cognizable injury to itself or its members). Even if the FMBA
did have standing, we do not have jurisdiction because the
FMBA failed to file a notice of appeal. See Rule 3(c)(1)(A),
Federal Rules of Appellate Procedure (stating that the notice of
appeal must name each party taking appeal in the caption or
body of the notice).

                              D.

       The District Court correctly held that the Department did
not violate the Appellants’ rights under the Due Process Clause
of the Fourteenth Amendment because the Appellants do not
have a protected property interest. See Antonelli, 310 F. Supp.
2d at 716. Further, collateral estoppel may bar the Appellants’
claims under the Due Process Clause because a month before
the Appellants filed their brief in this Court, a New Jersey
appellate court affirmed a decision of the Merit Protection
Board denying Appellants’ administrative challenges to the
1999 Examination. See In the Matter of Steven T. Dill, et al.,
No. 2675-01T2 (App. Div. Sept. 2, 2004); In the Matter of
Daniel Antonelli, et al., No. A-2675-01T2 (App. Div. Sept. 2,
2004); In the Matter of Brian Battel, No. 2678-01T2 (App. Div.
Sept. 2, 2004). Although the New Jersey appellate court never
specifically addressed due process, the issues underlying the
Appellants’ due process claims, access to examination materials

                              11
and the fairness of the 1999 Exam, formed the heart of the
discussion in Dill.

                                E.

       Finally, the District Court correctly held that the State
and state officials did not violate provisions of the Uniform
Guidelines on Employee Selection Procedures, 28 C.F.R. §
50.14, because they are mere guidelines and do not establish a
cause of action. See Antonelli, 310 F. Supp. 2d at 717.

                               IV.

       We now come to the heart of this appeal and analyze
whether New Jersey violated the Appellants’ rights under the
Equal Protection Clause of the Fourteenth Amendment. This
clause prohibits 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) (internal citations and quotations omitted).

       Intentional discrimination can be shown when: (1) a law
or policy explicitly classifies citizens on the basis of race, see
Hunt v. Cromartie, 526 U.S. 541 (1999); (2) a facially neutral
law or policy is applied differently on the basis of race, see Yick
Wo. v. Hopkins, 118 U.S. 356 (1886); or (3) a facially neutral
law or policy that is applied evenhandedly is motivated by
discriminatory intent and has a racially discriminatory impact,
see Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429

                                12
U.S. 252 (1977).

         Discriminatory intent “implies that the decision-maker .
. . 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). In light of the Supreme
Court’s affirmative action jurisprudence, it appears that one can
also demonstrate intent by proving that the state took a particular
course of action ‘because of’ its desire to benefit a particular
racial group. See Richmond v. J.A. Croson Co., 488 U.S. 469,
493-494 (1989) and Adarand Constructors, Inc. v. Pena, 515
U.S. 200, 226-227 (1995) (establishing that the government’s
‘benign’ use of racial considerations in decision-making, i.e., the
use of racial considerations in deciding to confer benefits upon
an historically disadvantaged group, is no less subject to strict
scrutiny than ‘invidious’ use of racial considerations in decision-
making). But see Hayden v. County of Nassau, 180 F.3d 42, 50-
51, 54 (2d Cir. 1999) (holding that proof that state action was
taken ‘because of’ its beneficial effect on minority applicants for
police officer positions was insufficient to establish
discriminatory intent against non minority applicants and
concluding that “race neutral efforts to address and rectify the
racially disproportionate effects of an entrance examination do
not discriminate against non-minorities”).

       Here, the 1999 Exam is facially neutral and the
Appellants would have to show that the Appellees acted with
discriminatory intent and the exam had a discriminatory impact.
The Appellants cannot meet this burden.


                                13
        The Appellants contend that the Department acted with
discriminatory intent because it decided to score only the
teamwork portion of the biodata component after the Exam was
administered and had been analyzed. To support this contention,
the Appellants rely on the notes and testimony of Louis Haszu,
then-Department Manager of Public Safety Testing. His notes
and testimony reflect that: (1) on July 19, 1999, he wrote that
“[The Department] to use all-bio, 140 plus questions, and to
score all,” but he couldn’t recall what that meant; and (2) on
July 27, 1999, he wrote that “Art Brown/Gib Johnson spoke
with Terry Mitchell and advised [that the Department] plans to
use all bio-data and score all questions” and testified that this
meant that “[a]t that point the Department was prepared to give
the entire test to candidates, instead of just the teamwork
questions.”

      The Appellants also reference part of the transcript of the
June 15, 1999 hearing before Judge Politan.

THE COURT: The Biodata. What will we do with that? What
has to be done with that?

MS. ACCURSO: It is done.

THE COURT: Done.

MS. THAWLEY: Yes your Honor. I don’t think we actually
have agreement as to how it will be used – which parts would be
used.



                               14
THE COURT: You are to meet and agree on that by July 15th.

(Transcript of June 15, 1999 hearing at 67-68.)

        The Appellants refer to an e-mail written by Dr. Paul
Sackett to Joseph Denardo on May 10, 2000, which states: “So
from an adverse impact perspective, the decision to focus on
teamwork only, rather than using the total biodata score, seems
to be a good one” as evidence that it was after the administration
of the exam that the Department decided to use only the
teamwork portion.

       On this point, the Appellees emphasize that earlier in the
June 15, 1999 hearing, counsel for the State twice announced
that the Department intended to use and score only the
teamwork questions of the biodata component. Counsel stated:

MS. ACCURSO: In further clarification, the State is only using
Dr. Mitchell’s work for the teamwork component of the test.

THE COURT: In other words, you have agreed now that you’re
going to use the teamwork component of Dr. Mitchell. You’re
going to use the physical test, whatever that is, and the cognitive
test, whatever that is.

MS. ACCURSO: Correct.

(Transcript of June 15, 1999 hearing at 9.) Later in the hearing,
counsel affirmed that “[t]he part that New Jersey is using is the
teamwork.”


                                15
        We conclude that the Department decided to utilize only
the teamwork portion of the biodata component before the
administration of the 1999 Exam. Although the Appellants have
presented some evidence that the Department had not finalized
the scoring of the Exam after the June 15, 1999 hearing, Judge
Politan’s July 30, 1999 Order put an end to any confusion or
question regarding the scoring of the Exam. The Order dictated
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.” Except for Sackett’s e-mail,
the Appellants have not provided any evidence that the
Department was still deciding how to weigh the components of
the Exam after Judge Politan delivered the Order. Sackett’s e-
mail does not explain when the Department made its decision,
but merely that the use of only teamwork was beneficial from an
adverse impact perspective.

       The evidence indicates that the 1999 Order, which
dictated that the teamwork portion should constitute one-third of
the total exam score, definitively fixed the composition of the
1999 Exam three months before its administration. At this point,
the Department was obligated to weigh and score the Exam in
accordance with the Order, giving the cognitive, physical and
teamwork components equal weight. If the entire biodata
component was scored, the cognitive and physical components
would be afforded double weight. Accordingly, if the
Department decided to use only the teamwork portion after the
administration of the Exam it would have been in violation of
the Order. Moreover, if the Appellants were dissatisfied with the

                               16
Order, they had an obligation to petition the Court for an
amendment thereof. We conclude that the District Court was
correct in determining that the Department’s decision to use
only the teamwork portion of the biodata was made prior to the
administration of the Exam.

      Because the Department decided to utilize only the
teamwork portion of the biodata component before the
administration of the 1999 Exam, there is no evidence that the
Department acted with discriminatory intent.

        Even if we were to conclude that the Department acted
with discriminatory intent, the Appellants have not provided any
evidence that the teamwork portion of the 1999 Exam had a
discriminatory impact on white candidates. The passing rate on
Part II, the teamwork component, was remarkably similar for
African-American, Hispanic and white applicants and had no
adverse impact on the basis of race. (See United States’
Statement of Undisputed Facts at 17-18.) The mean scores for
white, black, and Hispanic firefighter candidates on the
teamwork component were 49.92, 50.21, and 49.19,
respectively.1 Accordingly, there is no evidence that the Exam
had a discriminatory impact on white candidates.

                           *****


       1
         The overall pass rate for firefighter candidates who
took all three parts of the Exam was 61% for whites, 52% for
blacks and 52% for Hispanics. (See United States’ Statement
of Undisputed Facts at 17-18.)

                              17
       In sum, the Appellants have not raised any genuine issues
of material fact that the Department violated their rights under
the Equal Protection Clause of the Fourteenth Amendment.
Because the July 15, 1999 Order definitely determined the
composition of the 1999 Exam three months before its
administration, we conclude that New Jersey decided to use only
the teamwork portion before the administration of the Exam.
There is, therefore, no evidence that the 1999 Exam was
motivated by discriminatory intent. Even if there was evidence
of discriminatory intent, there is no evidence of a discriminatory
impact.

       The judgment of the District Court will be affirmed.




                               18
