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


7-22-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3615




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"Bishop v. New Jersey" (2005). 2005 Decisions. Paper 788.
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                                               NOT PRECEDENTIAL

            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT
                        _______________

                             No. 04-3615
                          ________________


     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; NEWARK FIRE DEPARTMENT; CITY OF NEWARK

               ____________________________________

             On Appeal From the United States District Court
                      For the District of New Jersey
                          (D.C. No. 02-cv-02219)
                District Judge: Honorable John W. Bissell
             _______________________________________

                 Submitted Under Third Circuit LAR 34.1(a)
                           June 30, 2005
         Before: RENDELL, BARRY and BECKER, Circuit Judges


                         (Filed: July 22, 2005)


                      _______________________

                             OPINION
                      _______________________
BECKER, Circuit Judge.

       The plaintiffs, African-American firefighters employed by the Newark Fire

Department, allege that a set of state actors, including the State of New Jersey, the City

of Newark, and the Newark Fire Department violated their civil rights by denying them

promotion on the basis of an eligibility exam which had a discriminatory and disparate

impact on minority employees. Plaintiffs have pled claims under Title VII, the Uniform

Guidelines for Employee Selection Procedures, 28 C.F.R. § 50.14, the 1980 Consent

Decree between the City of Newark and the U.S. Department of Justice, 42 U.S.C. §

1981 and the New Jersey Law Against Discrimination. The District Court dismissed the

case, Fed. R. Civ. P. 12(b)(6), because it found that it was the State’s responsibility to

create, administer, and promulgate the test results and that the municipal defendants’ use

of the test results in making promotion decisions was merely a neutral effect of the State’s

allegedly discriminatory act. Plaintiffs timely appealed, and we affirm.

                                              I.

       Plaintiffs allege that the promotional exam given in 2000 “differed substantially

from prior fire captain examinations” in that the new exam: 1) included 75 multiple

choice questions in addition to the traditional essay format; 2) did not allow an applicant

to take the oral portion of the exam unless he or she passed the written portion; and 3)

provided that the written and oral portions of the exam were no longer given on a purely

pass/fail basis but were given a numerical score. Of the 287 applicants who sat for the


                                              2
written and oral exam in 2000, 129 passed. Only 29.5% of African-American candidates

and 33.3% of Hispanic candidates passed the exam compared with 55.8% of White

candidates. Plaintiffs also allege that other statistical analyses demonstrate a disparate

impact on minority applicants.

       The most important change, however, was a new way of factoring seniority into

the exam results. Prior to 2000, each candidate with more than 15 years of seniority

received a 20 point increase in his or her numerical exam score regardless of whether the

candidate passed the written and oral portion of the exam. The 2000 exam, by contrast,

introduced a “Z formula” in which those who failed the oral and written exam were

automatically rejected, and those who passed would receive only one point for each year

of service up to 15 years. An additional 10 points could be added if the candidate had a

clean “Record of Service,” meaning no suspensions. Plaintiffs claim that this formula

had a disparate impact on minority applicants, many of whom were reaching the point

where they had more than fifteen years seniority for the first time.

       Plaintiffs filed suit in May, 2002. The history of this case, however, reaches back

to a 1980 Consent Decree entered into between the U.S. Department of Justice and many

New Jersey state and municipal entities, including the State of New Jersey and the City

of Newark. Under the Consent Decree, defendants agreed to “refrain from engaging in

any act or practice which has the purpose or effect of unlawfully discriminating against

any Black or Hispanic [firefighting personnel] . . . in hiring, . . . promotion or discharge


                                              3
because of race, color, or national origin.” The participating municipalities, including

Newark, also agreed to increase the number of qualified Black and Hispanic applicants

for ranking positions and conform their conduct to the Uniform Guidelines for Employee

Selection Procedures, 28 C.F.R. § 50.14. The plaintiffs, however, were not party to the

1980 Consent Decree.

       There have been extensive prior proceedings in this case, with which the parties

are familiar. For the most part, they are irrelevant to this appeal and hence the outcomes

need not be repeated here. What is relevant is that the District Court, in the opinion

giving rise to the present appeal, found that plaintiffs “make no allegation that the City

Defendants were involved in the configuration and application of” the Z formula, the

format, administration, scoring, or promulgation of the exam, and that it cited the

following language in our opinion in Bishop v. State of New Jersey (“Bishop II”), 84 Fed.

Appx. 220 (3d Cir. 2004):

         [t]he discriminatory act that plaintiffs allege is the design and
         administration of the exam and the concomitant promulgation of the
         eligibility list. The neutral use of the list by municipal fire departments
         is merely the effect of the alleged discriminatory exam.

Id. at 224. Therefore, the District Court concluded that “the City Defendants had no

illegal involvement with the 2000 Exam. Instead, the City Defendants’ use of the

examination results was neutral. Plaintiffs, as well, do not adequately allege that the City

Defendants were improperly involved.”

                                             II.

                                              4
       The procedure for establishing a Title VII disparate impact case is well known and

we set it forth in the margin.1 What is dispositive here is the District Court’s reliance on

our previous opinion in Bishop II to find that the City is not liable for using the results of

the challenged test. Although that opinion was styled “not precedential,” it here provides

the law of the case.

       In Bishop II, plaintiffs appealed the District Court’s dismissal of their claims

against the state actors. The District Court had held that the EEOC complaint was

untimely. Plaintiffs argued on appeal that the District Court had erred in finding the

EEOC complaint untimely because the promotion decisions and ongoing validity of the

eligibility list resulting from the challenged promotional exam constituted a continuing

violation of Title VII. Plaintiffs claimed that a discriminatory act occurred each time

they were passed over for promotion by the municipalities because of their ineligibility

under the state test results. We disagreed. Instead, we found that “[t]he discriminatory

 1
   “ [P]laintiffs establish a prima facie case of disparate impact by demonstrating that
application of a facially neutral standard has resulted in a significantly discriminatory
hiring pattern.” Lanning v. Southeastern Pennsylvania Transp. Authority (SEPTA), 181
F.3d 478, 485 (3d Cir. 1999); see Dothard v. Rawlinson, 433 U.S. 321, 329 (1977).
Once the plaintiffs have established a prima facie case, the burden shifts to the employer
to show that the employment practice is “job related for the position in question and
consistent with business necessity . . . .” 42 U.S.C. § 2000e-2(k)(1)(A)(i). We held in
Lanning that “in order to show the business necessity of a discriminatory cutoff score an
employer must demonstrate that its cutoff measures the minimum qualifications necessary
for successful performance of the job in question.” 181 F.3d at 489 (emphasis added). If
the employer meets this burden, the plaintiffs may nevertheless prevail if they can
demonstrate that an alternative employment practice has a less disparate impact and
would also serve the employer’s legitimate business interest. Id. at 489-90.


                                              5
act that plaintiffs allege is the design and administration of the exam and the concomitant

promulgation of the eligibility list. The neutral use of the list by municipal fire

departments is merely the effect of the alleged discriminatory exam.” Id. at 224 (emphasis

added). We further noted that plaintiffs’ Complaint does not allege that “the manner in

which individuals were promoted from the list when vacancies arose was discriminatory .

. . . Only in their Reply Brief do plaintiffs suggest—albeit without explanation---that the

promotions themselves were discriminatory. This suggestion is both belated and bereft

of support.” Id. at 225 n.9. Thus, Bishop II’s holding necessitates a finding that the

City’s use of the exam results is not an act of discrimination.

       This result is supported by two cases cited in Bishop II, 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), both of which suggest that otherwise neutral use

of an allegedly tainted exam is not itself a discriminatory act under Title VII, but rather is

merely an effect of the prior act of discrimination. See also Cox v. City of Memphis, 230

F.3d 199 (6th Cir. 2000) (the use of an allegedly tainted list was not a discriminatory act

where “the promotions were made neutrally, i.e., in rank order, from the eligibility list

and any discrimination occurred in the compilation of the list”); but see Guardians Ass'n

of New York City Police Dept. v. Civil Service Comm'n of City of New York, 633 F.2d

232 (2d Cir. 1980) (taking the (minority) view that the city’s “reliance on eligibility lists

reflecting performance on discriminatory examinations constituted a program of


                                              6
discriminatory hiring which terminated only when the last person was hired off the

lists”).

           Bronze Shields has obvious analogies to this case. In Bronze Shields, the

plaintiffs were required to take a written exam administered by the New Jersey

Department of Civil Service in order to become Newark police officers. If an applicant

passed the exam, then he or she would be placed on an eligibility roster ranked by score

on the exam. Newark would use this ranked list to screen and ultimately hire new

officers. The plaintiffs had each failed the exam or the screening process and sued the

State and City for violation of Title VII, claiming that the exam was discriminatory and

had disparate impact.

           Like Bishop II, the ultimate question in Bronze Shields was when the

discriminatory act accrued, not who is liable for the act. Nevertheless, to determine when

the violation occurred, it was necessary for the court in Bronze Shields to “identify

precisely the []employment practice of which plaintiffs complain and separate it from the

inevitable, but neutral consequences of the allegedly discriminatory practice.” 667 F.3d

at 1083. In so doing, Bronze Shields rejected the contention that Newark “continued to

discriminate against [plaintiffs] by its use of the eligibility roster” because “plaintiffs do

not allege that Newark would have followed anything but a neutral, non-discriminatory

procedure in hiring from the list. Newark’s policy was simply to hire from the list.” Id.

           In short, Bishop II and Bronze Shields ultimately had to determine when the


                                                7
violation occurred for statute of limitation purposes. Nevertheless, in order to make that

determination, it was necessary for the court in both cases to decide whether the

municipalities’ use of an allegedly tainted eligibility roster was itself a discriminatory act.

In both cases, we unequivocally held that the use of such a list is merely the neutral effect

of a prior act of discrimination, but does not constitute a separate, discriminatory action.

This was precisely the reasoning the District Court applied in dismissing the claims

against the municipal defendants.

       This result is bolstered by the fact that under New Jersey’s civil service law,

municipalities are required to use the results of the state-run eligibility tests in hiring and

promoting employees. See N.J.S.A. § 11A:4-5 (“Once the examination process has been

initiated due to the . . . request for a list to fill a vacancy, the affected appointing

authority shall be required to make appointments from the list if there is a complete

certification.”) (emphasis added). In New Jersey,

             [a] career civil service job, such as a paid firefighter . . . is subject to
             competitive examination procedures . . . . The minimum qualifications
             of candidates must be announced beforehand. The scope of
             requirements that applicants must meet are established by the
             Department of Personnel and specified in the examination
             announcement. After the examination, the Department of Personnel
             may certify the names of eligibles for each position. Upon receipt of
             certification, an appointing authority may, under the “rule of three”
             appoint “one of the top three interested eligibles” from the list.

In re Hruska, 867 A.2d 479, 483-84 (N.J. Super. Ct. App. Div. 2005) (citations omitted);

see generally N.J. Admin. Code tit. 4A, §§ 2.1-2.17 (competitive examination


                                                8
procedure); §§ 3.1-3.10 (eligibility lists); §§ 4.1-4.10 (certification of the eligibility lists).

This “rule of three” permits some discretion in hiring decisions, but has the “basic intent

and effect . . . to fetter the absolute discretion of government to hire.” Id. at 484 (quoting

Terry v. Mercer County Bd. of Chosen Freeholders, 430 A.2d 194 (N.J. 1981)). The fact

that Newark had no choice but to use the eligibility list, and limited discretion in

choosing who to hire from the list, would weigh heavily in support of the conclusion that

the City’s use of the list was a neutral, ministerial action, rather than a separate

discriminatory act.

       The order of the District Court will be affirmed.2




  2
   Judge Rendell does not view the ruling as to the City’s dismissal to be controlled by the
Court’s previous decision in Bishop II, because the issue being urged here on appeal
pertains to the City’s duty---separate and apart from the State’s testing---to independently
“investigate and validate any selection procedure prior to using that procedure to make
employment decisions.” (Appellants’ brief, p. 11). However, Judge Rendell would
affirm because the complaint does not sufficiently plead a claim based on this theory of
liability against the City.

                                                9
