The opinion
Opinions of the United
1998 Decisions States Court of Appeals
for the Third Circuit
1-13-1998
Newark NAACP v. City of Bayonne
Precedential or Non-Precedential:
Docket 96-5848
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Filed January 13, 1998
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 96-5848
NEWARK BRANCH, NATIONAL ASSOCIATION FOR THE
ADVANCEMENT OF COLORED PEOPLE; JERSEY CITY
BRANCH, NATIONAL ASSOCIATION FOR THE
ADVANCEMENT OF COLORED PEOPLE; NEW JERSEY
STATE CONFERENCE, NATIONAL ASSOCIATION FOR
THE ADVANCEMENT OF COLORED PEOPLE; THE
NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF
COLORED PEOPLE,
Appellants
v.
CITY OF BAYONNE, NEW JERSEY
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 90-cv-00684)
Argued July 22, 1997
Before: SCIRICA, ROTH and WEIS, Circuit Judges
(Filed January 13, 1998)
JOSHUA N. ROSE, ESQUIRE
(ARGUED)
DAVID L. ROSE, ESQUIRE
Rose & Rose, P.C.
1835 K Street, N.W., Suite 900
Washington, D.C. 20006-1203
JONATHAN M. HYMAN, ESQUIRE
Rutgers University School of Law
Constitutional Litigation Clinic
15 Washington Street, Room 338
Newark, New Jersey 07102
Attorneys for Appellants
TARQUIN J. BROMLEY, ESQUIRE
(ARGUED)
Apruzzese, McDermott, Mastro &
Murphy
25 Independence Boulevard
P.O. Box 112
Liberty Corner, New Jersey 07938
Attorney for Appellee
OPINION OF THE COURT
SCIRICA, Circuit Judge.
This Title VII case involves an interpretation of a consent
order that removed a residency requirement for municipal
employees.
In 1989, the National Association for the Advancement of
Colored People, its New Jersey State Conference, and its
Newark and Jersey City Branches, filed suit in district
court against the City of Bayonne, New Jersey. The NAACP
alleged, inter alia, that Bayonne unlawfully discriminated in
hiring municipal employees, principally police officers and
firefighters, in violation of Title VII of the Civil Rights Act of
1964, 42 U.S.C. SS 2000e-2000e-17 (West 1994 & Supp.
1997) by requiring its employees to reside in Bayonne.
Bayonne is a "civil service" municipality 1 and hires
_________________________________________________________________
1. Pursuant to N.J. Stat. Ann. SS 11A:9-1 and 11A:9-2, a New Jersey
municipality can choose whether or not it wants to be subject to the
2
employees for competitive positions (police andfirefighters)
on the basis of their performance on a state-wide civil
service examination administered by the New Jersey
Department of Personnel.2 Applicants for non-competitive
positions are not hired on the basis of their performance on
an examination.
On January 31, 1991, the parties entered into a
stipulation and order settling the lawsuit. Bayonne agreed
to suspend its residency requirement and to affirmatively
recruit African American applicants. The stipulation expired
in four years, but Bayonne remained under a continuing
obligation to ensure that its recruitment and hiring
practices were lawful and nondiscriminatory.
Four years later, in May 1995, because the removal of
the residency requirement failed to increase--and in the
case of police officers decreased--the representation of
African Americans among its workforce, Bayonne reinstated
the residency requirement. The NAACP sought injunctive
relief. In a bench trial, the district judge denied the request
for injunctive relief, finding the NAACP failed to establish a
causal nexus between the residency requirement and its
allegedly disparate impact on African Americans. The
NAACP now appeals.3
We hold the district court was not clearly erroneous in
concluding the NAACP failed to prove the residency
requirement unlawfully discriminated against African
American applicants for police and firefighter positions. But
the district court made no finding with respect to Bayonne's
hiring for non-competitive jobs, which do not require a civil
service examination. We will affirm in part and reverse in
part.
_________________________________________________________________
state's Civil Service Act.
2. The NAACP has not made the New Jersey Department of Personnel a
party to this lawsuit and is not challenging the legality of the
examination.
3. The Honorable H. Lee Sarokin presided over this matter in 1991. After
Judge Sarokin was appointed to this court, the matter was assigned to
the Honorable William H. Walls, United States District Judge for the
District of New Jersey.
3
I.
Bayonne4 hires its municipal employees in accordance
with New Jersey's Civil Service Act, N.J. Stat. Ann. S 11A:1-
1 et seq. (West 1993 & Supp. 1996). New Jersey has two
divisions of civil service jobs: competitive and non-
competitive. N.J. Stat. Ann. S 11A:3-2 (West 1993). Civil
service regulations require that candidates for competitive
positions, including police and fire-department jobs, apply
through the New Jersey Department of Personnel. For these
jobs, the New Jersey Department of Personnel administers
examinations and promulgates a list of eligible candidates
based on the results of the examination. N.J.A.C.S 4A:4-1.1
(1995); S 4A:4-4.2 (1995). The New Jersey Department of
Personnel ranks the candidates on the list, called a
certification, in order of their test scores. N.J. Stat. Ann.
S 11A:4-1 (West 1993); N.J.A.C. S 4A:4-3.2 (1997). When
Bayonne wants to hire workers for competitive positions, it
requests a list of a number of candidates sufficient to
satisfy its hiring needs. N.J.A.C. S 4A:4-4.1 (1996). The New
Jersey Department of Personnel then selects an appropriate
number of candidates from the master list in accordance
with the residence requirements of Bayonne and forwards
the certification to Bayonne. N.J.A.C. S 4A:4-3.2. After
receiving the certification, the municipality-- for the first
time in the process -- learns the names, addresses and
rank of eligible candidates. At the same time, the New
Jersey Department of Personnel notifies eligible candidates
they have been certified and instructs them to inform
Bayonne if they are interested in the job. N.J.A.C. S 4A:4-
4.2(b). If a candidate indicates his or her interest, Bayonne
commences its own screening process to ensure that the
candidate meets the age, citizenship, health and character
standards established by state law and is otherwise suited
to serve.5 Otherwise, with limited exceptions not applicable
_________________________________________________________________
4. Bayonne is located in the southern end of Hudson County, New
Jersey, bordered on the north by Jersey City. Newark lies ten miles
away. African Americans make up 4.7% of Bayonne's population. African
Americans make up 14.4% of the population of Hudson County and
40.6% of neighboring Essex County.
5. Candidates for the police and fire departments must also submit to a
drug test, a thorough background check, a physical examination, and an
interview with the chief of the police or fire department.
4
here, Bayonne must hire the candidates in the exact rank
order presented by the New Jersey Department of
Personnel. N.J.A.C. S 4A:4-4.8 (1996).
Candidates for non-competitive entry level positions,
such as laborer and clerk typist, are hired directly by
Bayonne. Most electrical and blue collar positions are
promoted from the laborer and clerk typist level. Certain
non-promotional, non-uniform positions are classified as
open competitive and are filled from certified lists created
by the New Jersey Department of Personnel. Many of these
jobs traditionally have been filled on a provisional basis
while the New Jersey Department of Personnel posts the
vacancies and certifies a list of eligible candidates based on
examinations. Frequently, although not always, the
provisional appointee is appointed on a permanent basis.
See J.A. at 1.27.
Before 1991, Bayonne limited its municipal hiring to
Bayonne residents only, an option permitted by the Civil
Service Act. See N.J. Stat. Ann. S 40A:9-1.3 (1993)
(Municipalities may "require [that] . . . all officers and
employees employed by the local unit . . . be bonafide
residents therein.").
As we have noted, on February 20, 1990, the NAACPfiled
suit in the United States District Court for the District of
New Jersey against Bayonne, asserting its residency
requirement unlawfully discriminated against African
Americans in violation of Title VII. Before trial, the parties
settled the case by entering into the stipulation. The
stipulation provided that Bayonne "shall not engage in any
employment practice which unlawfully discriminates
against individuals on the basis of their race in recruitment
or hiring or in other terms and conditions of employment."
J.A. at 2.5. The stipulation articulated its purpose: "to
ensure that the recruitment and hiring practices of
Bayonne are lawful and non-discriminatory, and to ensure
that no one is unlawfully disadvantaged by its recruitment
and hiring practices." Id.
Under the stipulation, Bayonne, without admitting
wrongdoing, promised to: (1) replace its "Bayonne-
residency" requirement with a "New Jersey-residency"
5
requirement for police officers and fire-fighters;6 (2)
affirmatively recruit African American applicants; and (3)
refrain from discriminatory employment practices in the
future. Recruitment efforts included "paid radio and
newspaper advertising and outreach in Newark, East
Orange, and Jersey City, with the goal of attracting black
applicants in numbers reflecting their availability in the job
category being filled." J.A. at 2.5-2.16.
Bayonne remained under a continuing obligation to
refrain from discriminatory recruiting and hiring practices.
The stipulation provided that "[a]t the conclusion of four (4)
years from the date this Stipulation is executed . .. the
requirements of this Stipulation shall cease to bind
[Bayonne] . . . except that [Bayonne] . . . shall continue to
ensure that the recruitment and hiring practices of
Bayonne are lawful and non-discriminatory." J.A. at 2.16.
In the event of Bayonne's non-compliance, the NAACP
could enforce the stipulation upon "a clear and convincing
showing that defendant's failures or omissions to meet the
terms of this stipulation were not minimal or isolated but
were substantial." J.A. at 2.14. During the four-year term,
the NAACP never availed itself of this provision.
On March 8, 1991, Bayonne amended its residency
ordinance in accordance with the terms of the stipulation.
Bayonne also increased recruitment efforts aimed at African
Americans. The record demonstrates that the Bayonne
Police Department engaged in an extensive program to
recruit Bayonne residents for the civil service examination
which included outreach to African Americans living in
Bayonne. In addition, the Deputy Chief of the fire
department led an intensive effort to recruit and train
Bayonne residents, particularly African Americans, for
firefighter jobs. J.A. at 1.11-1.12, 1.35.
It is uncontested, however, that after four years, minority
representation did not increase. Significantly, as the NAACP
stated both in the district court and in oral argument
before this court, minority representation among police
_________________________________________________________________
6. For other positions, the stipulation provided that Bayonne merely had
to relax its residency requirement. Non-residents who took municipal
jobs had to move into Bayonne within six months of their employment.
6
officers actually decreased. The record demonstrates that
the number of African American candidates referred by the
Department of Personnel to Bayonne for police positions
decreased from 3.4% to 1% during the moratorium.7
On May 3, 1995, "having concluded that the stipulated
settlement with appellants did not increase the number of
the City's black employees," Bayonne reenacted its
residency requirement.8 Brief of Appellee at 13. As noted,
on May 9, 1996, the NAACP asked for temporary and
permanent injunctive relief, claiming Bayonne's
reinstatement of the residency requirement violated the
stipulation's prohibition against future employment
discrimination.
The district court reopened the case and on July 8, 1996,
denied the NAACP's application for a preliminary
injunction. Subsequently, in November 1996, the district
court conducted a bench trial. The parties submitted
extensive stipulations of fact, and the NAACP presented
witness testimony. Much of the NAACP's evidence was
statistical, including the following:9
- Bayonne is approximately 4.7% African American.
Hudson County is approximately 14.4% African
American, and neighboring Essex County is
approximately 40.6% African American.
- Of the employees hired during the four-year
moratorium, 2.6% of the non-residents were African
_________________________________________________________________
7. We cannot make a similar comparison for firefighters because the
parties have not provided us with statistics on Bayonne's hiring before
the residency requirement was lifted. The parties' joint appendix does
tell us from 1992-1995, 97 persons were certified to Bayonne as eligible
for employment as firefighters. Bayonne rejected one, 3 declined
appointment, 10 failed to respond to the notice of certification, and 9
asked to be deferred for later consideration. Of the 81 hired, 2 (2.5%)
were African American. J.A. at 1.22-1.23.
8. The residency requirement became effective May 24, 1995.
9. These statistics were compiled in various years. We specify the years
only when relevant.
7
American, and 5.5% of the Bayonne residents were
African American.10
- During the four-year moratorium, the percentage of
newly-hired police officers who were African
American decreased. In February 1990, 3.4% (5 of
145) of those listed as eligible for police employment
were African American, and 20% (2 of 10) of those
hired were African American. In comparison, in
January 1992, 8.2% (77 of 933) of those listed as
eligible for police employment were African
American, and 1.1% (4 of 362) of those certified for
hiring were African American. After the moratorium
expired, in September 1996, 6.6% of newly-hired
police officers were African American.
- In Bayonne, 14.3% of employees of large, private-
sector employers are African American. In Hudson
County, 17.2% of employees of large, private-sector
employers are African American.11
- 11.1% of New Jersey's civilian labor force is African
American. 21.2% of New Jersey's government
employees are African American.
The NAACP also offered expert witness David Griffin, who
analyzed statistics, compared the racial composition of
Bayonne with both the surrounding counties and the entire
State of New Jersey, and opined that the residency
requirement was discriminatory.
After hearing the NAACP's evidence, the district court
granted Bayonne's Motion for Judgment under Fed. R. Civ.
P. 52(c).12 The court found the NAACP failed to prove a
_________________________________________________________________
10. African American representation in Bayonne's municipal workforce
was 3.5% before the four-year moratorium. The NAACP contends during
the four-year moratorium, 5% of the municipal employees hired were
African American. J.A. at 1.13-1.14. But the NAACP does not use this
statistic in its briefs in support of its prima facie case. And at trial,
the
NAACP's expert stated that he "would be surprised if that [difference]
was statistically significant." J.A. at 1.207.
11. The parties obtained these numbers from reports of the Equal
Employment Opportunity Commission on the racial composition of
private employer establishments with over 100 employees.
12. Fed. R. Civ. P. 52(c) provides, in relevant part: "If during a trial
without a jury a party has been fully heard on an issue and the court
8
causal nexus between Bayonne's residency requirement
and the low percentage of African American municipal
employees. The district judge ruled orally:
I am constrained to dismiss this case because there is
no factual basis for what we have had by way of
opinions given by the plaintiff's expert, David Griffin,
an expert in labor market analysis.
As I discussed with [plaintiff's counsel] Mr. Rose and
I incorporate by reference, we have an order entered
January 31, 1991 by the then District Judge Sarokin
approving and incorporating therein a stipulation by
the parties. Originally the Newark Branch of the
NAACP, together with other branches of the
organization had brought suit against the City of
Bayonne alleging and claiming that under Title VII,
that the members of the plaintiff and members of the
black race in general had been discriminated against in
employment by the municipality of Bayonne.
The stipulation sought to resolve the differences by the
parties and between the parties by providing that a
residency requirement, which had been the main
thrust of the complaint by the plaintiffs against the
defendant, would be removed, and it was so done in, I
believe, March 1991.
Thereafter, for the life of the stipulation, which was
four years from the date of execution by Judge
Sarokin, there was no such residency requirement.
During that period, the hope for an increase in black
municipal government employment, it is agreed, did
not improve.
It should be also noted that during this period there
has been no history, through the plaintiffs anyway in
their case, of there being any complaint by the
plaintiffs of any failure of the defendant municipality to
_________________________________________________________________
finds against the party on that issue, the court may enter judgment as
a matter of law against that party with respect to a claim or defense that
cannot under the controlling law be maintained or defeated without a
favorable finding on that issue...."
9
abide by the terms of the stipulation, although there
was a mechanism for such overview and review with
the Court having jurisdiction retained to it to entertain
any criticisms of what was being done or not being
done by Bayonne.
In any event, we have had for the last day and a half
evidence produced by David Griffin primarily which
consists, with all due respect, of statistical possibilities
relying upon data wherein he assumes that Hudson
County is the employment market by which
comparisons shall be made as to whether blacks are
being disparately impacted by the residency ordinance
that was recently reinstated by the municipality of
Bayonne in the spring of this year, 1996.
With due respect to the doctor, his opinions, as he
admits in one circumstance, are nothing more than his
expression of common sense. They are speculative.
They involve speculative contingencies and possibilities
without any evidential basis. I can't be more specific
because he was not more specific.
He speaks about the failure of blacks to be hired, but
there is no evidence as to why they were not hired. He
speaks of the non-seeking of employment with Bayonne
by blacks and being much lower than that in
surrounding Hudson County towns, but we have no
evidence as to why that is. And regardless of how
important and how vital the purpose of Title VII is, it,
too, just like any other law is dependent upon factual
evidence from which judges and lawyers and parties
can make meaningful decisions. That is the problem
with this case, we have no factual evidence.
We have well intentioned statistical platitudes. For
example, much is made of a 1996 police employment
examination, which has a small number of persons of,
as I said, the black race, as being qualified, but that
list was not prepared nor administered, nor reviewed
by the defendant in the municipality. It was prepared
by the New Jersey State Department of Personnel, so
to try to speak of visiting discrimination, whether
intentionally or inadvertently or institutionally, at the
10
doorstep of the municipality is not warranted factually,
and that is why I dismiss this case, because there is
nothing to support it factually.
J.A. at 1.251-1.255. The NAACP now appeals.
II.
The district court had jurisdiction under 28 U.S.C.
SS 1331 and 1343 (1993) because this case arises under
Title VII, and we have jurisdiction under 28 U.S.C. S 1291
(1993).
The district court found the NAACP failed to meet the
burden imposed by the stipulation of demonstrating non-
compliance because it did not prove the residency
requirement caused a disparate impact in hiring. Causation
presents a question of fact. Kachmar v. Sungard Data Sys.
Inc., 109 F.3d 173, 179 (3d Cir. 1997); Thomas v. City of
Omaha, 63 F.3d 763, 765 (8th Cir. 1995) (reviewing Title
VII causation determination as a finding of fact).
Federal Rule of Civil Procedure 52(a) dictates the
appropriate standard of review. In a bench trial, the court
"shall find the facts and state separately its conclusions of
law thereon" and those "[f]indings of fact... shall not be set
aside unless clearly erroneous." Id. The NAACP requests
application of a plenary standard of review. But the
applicable authority holds that the district court's findings
of intentional discrimination or disparate impact shall be
reviewed under the clearly erroneous standard. See
Anderson v. City of Bessemer City, 470 U.S. 564, 566
(1985) ("In Pullman Standard v. Swint, 456 U.S. 273 (1982),
we held that a district court's finding of discriminatory
intent in an action brought under Title VII . . . is a factual
finding that may be overturned on appeal only if it is clearly
erroneous."); Villanueva v. Carere, 85 F.3d 481, 485-86
(10th Cir. 1996) ("[W]e may reverse the trial court's finding
of no discriminatory intent only if it is clearly erroneous
. . . . [T]his standard of review [is] well established.");
Bernard v. Gulf Oil Corp., 890 F.2d 735, 739 (5th Cir. 1989)
("The standard of review for such a decision is whether,
looking at the record as a whole, the district court was
clearly erroneous in its determination that there was no
11
purposeful discrimination and that the action resulting in
disparate impact was justified by legitimate business
reasons.") (citation omitted); Keyes v. Secretary of the Navy,
853 F.2d 1016, 1019 (1st Cir. 1988) ("A district court's
finding concerning intent in an employment discrimination
action is a factual finding within the `clearly erroneous'
rubric.") (citation omitted); Chambers v. Omaha Girls Club,
Inc., 834 F.2d 697, 702 (8th Cir. 1987) (citation omitted).
Of course, this case lies one step removed from a
traditional Title VII analysis. The district court evaluated
whether Bayonne fulfilled its obligations under the
stipulation to refrain from employment practices that
violated Title VII. Focusing on Bayonne's performance
under the stipulation, the district court assessed whether
Bayonne complied and made factual findings. We review
factual findings for clear error.
Harrison v. Metro. Gov't of Nashville and Davidson
County, 80 F.3d 1107 (6th Cir. 1996), cert. denied, 117 S.
Ct. 169 (1996) supports this standard of review. In
Harrison, a discharged public employee filed a contempt
citation against his former government employer, alleging it
failed to comply with a stipulation resulting from race
discrimination litigation. The United States Court of
Appeals for the Sixth Circuit applied the following standard
of review when examining the district court's finding of
contempt:
In order to hold the defendants in civil contempt, a
district court must find that the plaintiff established by
clear and convincing evidence that the defendants
violated the court's prior order. In fact, eachfinding of
a violation of the order must be supported by clear and
convincing evidence. . . . We review the district court's
finding of civil contempt for an abuse of discretion. A
district court may abuse its discretion when it relies on
clearly erroneous findings of fact.
Id. at 1112-13 (citations omitted).
Accordingly, we review for clear error.
Under this standard, a finding is `clearly erroneous
when the reviewing court on the entire evidence is left
12
with the definite and firm conviction that a mistake
has been committed.' This standard does not permit
the reviewing court to conduct a de novo review of the
evidence, but it does allow the court to consider
whether there is enough evidence in the record to
support the factual findings of the district court. This
review is more deferential with respect to
determinations about the credibility of witnesses, and
when the district court's decision is based on testimony
that is coherent and plausible, not internally
inconsistent and not contradicted by external evidence,
there can almost never be a finding of clear error.
United States v. Igbonwa, 120 F.3d 437, 440-41 (3d Cir.
1997) (citations omitted), petition for cert. filed (Oct. 23,
1997) (No. 97-6518).13
III.
We must "examine the language of the [stipulation] to
determine the obligations and duties undertaken by the
various parties." Vulcan Pioneers, Inc. v. New Jersey Dep't
of Civil Serv., 832 F.2d 811, 814 (3d Cir. 1987). The
language of the stipulation is clear: Bayonne "shall
continue to ensure that the recruitment and hiring
practices of Bayonne are lawful and non-discriminatory."
The parties agree this clause requires Bayonne to comply
with Title VII, 42 U.S.C. S 2000e-2(a), which makes it
unlawful to "limit . . . applicants for employment in any
way which would deprive or tend to deprive any individual
of employment opportunities . . . because of such
individual's race . . . ." Title VII prohibits not only
intentional discrimination, but also "disparate impact"
discrimination, i.e., "employment practices, adopted without
a deliberately discriminatory motive, [which] may in
operation be functionally equivalent to intentional
_________________________________________________________________
13. The NAACP maintains the district court failed to make the requisite
findings of fact. Under Robinson v. Lehman, 771 F.2d 772 (3d Cir. 1985),
the district court must set forth findings of fact sufficient to allow
"the
appellate court, on review, [to] ascertain the basis for [its] decision."
Id.
at 780. Except with respect to Bayonne's hiring of non-competitive
employees, the district court satisfied this requirement.
13
discrimination." Watson v. Fort Worth Bank & Trust, 487
U.S. 977, 987 (1988).
In order to establish a prima facie case of disparate
impact discrimination, the plaintiff must demonstrate that
application of a facially neutral standard has caused a
"significantly discriminatory hiring pattern." Newark
Branch, NAACP v. Town of Harrison, 940 F.2d 792, 798 (3d
Cir. 1991). See also Wards Cove Packing Co., Inc. v.
Antonio, 490 U.S. 642, 657 (1989) (holding plaintiffs must
"demonstrate that the disparity they complain of is the
result of one or more of the employment practices that they
are attacking here, specifically showing that each
challenged practice has a significantly disparate impact on
employment opportunities for whites and nonwhites."). The
evidence in these cases usually focuses on statistical
disparities. Harrison, 940 F.2d at 798. 14
To prove causation through statistical evidence alone, the
statistics must be "of a kind and degree sufficient to show
that the practice in question has caused the exclusion of
applicants for jobs or promotions because of their
membership in a protected group. . . . [S]tatistical
disparities must be sufficiently substantial that they raise
such an inference of causation." Watson, 487 U.S. at 994-
95. See also McNeil v. McDonoush, 648 F.2d 178, 182 (3d
Cir. 1981) (causation will be proven only if the statistics do
not require speculation by the court). The Supreme Court
has emphasized that the statistics must be relevant to the
discrimination alleged. See Hazelwood School Dist. v. United
States, 433 U.S. 299, 313 n.20 (1977). "The`proper
comparison [is] between the racial composition of [the at-
issue jobs] and the racial composition of the qualified . . .
population in the relevant labor market.' " Wards Cove, 490
U.S. at 650-51 (citations omitted).
_________________________________________________________________
14. Once the plaintiff proves its prima facie case, the burden shifts to
the
defendant to prove a business justification for the challenged practice.
It
is then up to the plaintiff to discredit any business justification
asserted
(or to suggest a viable alternative to the challenged practice which would
reduce the disparate impact). Harrison, 940 F.2d at 798. Burden shifting
never occurred in this case, because the court held plaintiff failed to
prove its prima facie case.
14
The district court found the statistical evidence offered by
the NAACP was insufficient to prove causation. 15
Specifically, it held the NAACP did not prove the residency
requirement discriminated against African Americans. At
oral argument the NAACP conceded the New Jersey civil
service examination was a likely cause of the disparity.16 As
the Court of Appeals for the Fifth Circuit held in
considering a challenge to an employment test:
The plaintiffs contend that th[e] disparity results both
from testing and the use of subjective criteria, yet they
offer no method from which this Court can ascertain
whether a significant part of this disparity results from
testing. The plaintiffs simply have not shown that
testing, independent of other factors that may affect
the racial balance of the workforce, is causally related
to discrimination in the number of blacks hired or
promoted. The causal requirement recognizes that
under representation of blacks might result from any
number of factors, and it places an initial burden on
the plaintiff to show that the specific factor challenged
under the disparate impact model results in the
discriminatory impact. The plaintiffs, by failing to
isolate the discriminatory effect of the practice they
challenged, did not meet this burden.
Carroll v. Sears, Roebuck & Co., 708 F.2d 183, 189-90 (5th
Cir. 1983).
The NAACP contends it has proven causation. Although
its position is not entirely clear, it seems to make two
separate arguments. First, the NAACP argues the residency
requirement reduces the percentage of African Americans
on the list of eligible candidates. Responding to the district
court's request to produce its best evidence, counsel for the
NAACP said: "If [Bayonne has] the residency requirement
_________________________________________________________________
15. The NAACP contends the district court improperly held statistics are
an improper form of evidence. We disagree. The district court held that
the statistics in this case were insufficient, and expressed no opinion
whether they constituted "proper" evidence.
16. Counsel for the NAACP acknowledged, "Clearly the test has a
disparate impact, no question about it." The NAACP argues that
although the test is one cause, the residency requirement is another.
15
they hire from the 6 percent black list. If they don't have
the residency requirement, they might hire from an 11
percent black list or 15 percent black list." 17 J.A. at 1.238.
By referring to the "list," the NAACP apparently means the
list of applicants who took and received a passing grade on
the law enforcement examination administered by the New
Jersey Department of Personnel in January 1996. 18
But this argument ignores the process by which Bayonne
selects police officers. That 15% or 30% of those taking and
passing the test are African American bears little
relationship to the racial composition of the list of
candidates ultimately certified to Bayonne. Except for the
residency requirement, Bayonne does not have control over
the list. The New Jersey Department of Personnel certifies
the list to Bayonne, ranking the applicants in order of their
test scores. N.J. Stat. Ann. 11A:4-1; N.J.A.C. 4A:4-3.2.
With limited exceptions not applicable here, Bayonne
cannot choose from a "pool" of qualified candidates but
_________________________________________________________________
17. In its brief, the NAACP argues that Bayonne would have hired police
officers in 1996 from a list of eligibles that was over 30% African
American if it had no residence requirement.
18. As we have noted, statistics often form the basis of the prima facie
case in disparate impact cases. See Harrison, 940 F.2d at 798 (citations
omitted). In Wards Cove, the Supreme Court emphasized that "the
`proper comparison [is] between the racial composition of the [at-issue]
jobs and the racial composition of the qualified ... population in the
relevant labor market.' " 490 U.S. at 651 (citations omitted). The Court
noted the possibility of using other statistics. See Id. at 651
("Alternatively, in cases where such labor market statistics will be
difficult if not impossible to ascertain, we have recognized that certain
other statistics--such as measures indicating the racial composition of
`otherwise qualified applicants' for at-issue jobs--are equally probative
for this purpose."). And this court has looked to other statistics in
disparate impact cases, see Green v. USX Corp., 896 F.2d 801, 805, but
not when more probative statistics were available. The NAACP cites no
authority, and we can find none, that supports the use of these
particular statistics to set out a prima facie case of disparate impact
discrimination under Title VII, particularly where the NAACP had
available to it and made use of the labor market statistics that form the
proper basis of a disparate impact case under Wards Cove. We express
no opinion on whether under the appropriate circumstances such
statistics can form the proper basis of a prima facie case under Title
VII.
16
must hire the candidates presented by the New Jersey
Department of Personnel according to rank. N.J.A.C. 4A:4-
4.8. Bayonne cannot waive civil-service requirements for
any applicant for a job governed by the civil service system.
N.J.A.C. 4A:10-2.1. Significantly, when Bayonne removed
the residency requirement, the number of African American
candidates referred to it did not increase and even
decreased. The NAACP acknowledges that African American
representation on the certified list decreased. As noted, the
record demonstrates that the number of African American
candidates referred by the Department of Personnel to
Bayonne for police positions decreased from 3.4% to 1%
during the moratorium.19
The NAACP's second argument involves a comparison
between the racial composition of what it asserts to be the
labor market and the racial composition of Bayonne's
workforce. While defining the relevant labor market
precisely is usually necessary, we can also look to the
general population of the Bayonne area if it is an adequate
proxy.20 See Wards Cove, 490 U.S. at 651 n.6 (citations
omitted) ("[W]here `figures for the general population might
. . . accurately reflect the pool of qualified job applicants,'
we have even permitted plaintiffs to rest their prima facie
cases on such statistics. . . .").21 We found statistics on the
general population sufficient to prove causation in Harrison,
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19. As we have noted, the parties have not provided us with similar
comparative statistics for firefighters. According to the parties' joint
appendix, however, from 1992-1995, of the 81 firefighters hired, 2 (2.5%)
were African American. J.A. at 1.22-1.23.
20. The district court characterized the NAACP's definition of Bayonne's
labor market as "speculative." As our analysis will show, we do not need
to decide whether the NAACP properly defined the labor market.
21. We assume arguendo that the general population of the greater
Bayonne area is the relevant labor market. But we note that looking to
the general population is not necessarily sufficient in situations like
this
one where the claim involves jobs with "special qualifications". See
Hazelwood School Dist. v. United States, 433 U.S. 299, 307-308 (1977)
("When special qualifications are required tofill particular jobs,
comparisons to the general population (rather than to the smaller group
of individuals who possess the necessary qualifications) may have little
probative value.").
17
940 F.2d at 792, where the NAACP sued the Town of
Harrison claiming its residency requirement excluded
African Americans from municipal employment. The Town
of Harrison is similar to Bayonne -- it contains a low
percentage of African American residents, and it sits in
Hudson County. Following a bench trial, we upheld
judgment for the NAACP, citing with approval the district
court's reasoning:
[t]he geographical areas from which Harrison draws
employees includes its own County of Hudson as well
as Bergen, Essex and Union counties. . . . It would be
hard to conclude that among the very substantial
number of black workers in the four county labor
market there are not large numbers of persons
qualified to serve as police officers, firefighters, clerk
typists and laborers . . . . [W]here Harrison across the
board has no black employees and where the total
work force in [the four-county area] has at least
214,747 black persons, disparity is at least suggested.
Id. at 799.22
But there are important differences between Harrison and
this case. First, the statistical evidence in Harrison was
extremely probative. Before suit commenced, no African
American person had ever held a uniformed or non-
uniformed municipal position even though African
American representation among Harrison's private
employers was 22.1%. Harrison, 940 F.2d at 796.
Furthermore, the only evidence presented in Harrison
were projections based on statistics; here there is direct
evidence consisting of hiring percentages of African
American applicants during the four years in which
Bayonne removed its residency requirement. Statistics "are
not irrefutable; they come in infinite variety and, like any
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22. In Harrison, the court apparently did not consider the impact of the
civil service examination because the parties did not raise it. On appeal,
Harrison argued: (1) that the relevant labor market should be defined as
the entire State of New Jersey; and (2) that it had legitimate business
justifications sufficient to satisfy its burden under Title VII. Harrison
did
not dispute the accuracy of the plaintiffs' statistical analysis. See
Harrison, 940 F.2d at 799-800.
18
other kind of evidence, they may be rebutted. In short, their
usefulness depends on all of the surrounding facts and
circumstances." International Bhd. of Teamsters v. United
States, 431 U.S. 324, 340 (1977). In Title VII cases, we
often rely on statistical evidence because direct evidence of
the effect of a particular employment practice is not
available. In Harrison, we concluded that the data
presented indicated that among "the `vast black labor force
in Harrison's labor market, there would be a large number
of black persons qualified to serve and wishing to serve' in
each category of municipal employment in Harrison." 940
F.2d at 889. In this case, no projection is necessary
because there is direct evidence of the impact of the
challenged employment practice. Under the 1991
stipulation, Bayonne removed the residency requirement for
four years, and minority representation did not increase
and even decreased for police officers. Faced with that
record, we believe that the district court did not commit
clear error in finding that the NAACP had failed to prove
causation.
The NAACP contends we should not consider the results
of the four-year moratorium and the evidence that the
"bottom line" racial statistics did not improve, citing
Connecticut v. Teal, 457 U.S. 440 (1982). But Teal did not
hold that the "bottom line" is irrelevant; it held that an
employer cannot avoid Title VII liability by manipulating the
"bottom line" to compensate for racial discrimination in
hiring or promotions. In Teal, employees of the Department
of Income Maintenance of the State of Connecticut sued
their employer, alleging that a promotion-eligibility
examination was racially biased. The employer, in order to
compensate for the low percentage of minority employees
who passed the examination, selected a disproportionately
high number of those minorities for promotion. The Court
held the high minority promotion rate did not negate the
discriminatory impact of the examination. "The suggestion
that disparate impact should be measured only at the
bottom line ignores the fact that Title VII guarantees these
individual respondents the opportunity to compete equally
with white workers on the basis of job-related criteria." Id.
at 451.
19
Teal suggests that a subsequent affirmative action
program cannot "redeem" discriminatory conduct that
produces disparate results. See Id. at 452 ("respondents'
claim of disparate impact from the examination, a pass-fail
barrier to employment opportunity, states a prima facie
case of employment discrimination under S 703(a)(2) despite
their employer's nondiscriminatory `bottom line,' and that
`bottom line' is no defense to this prima facie case under
S 703(h)"). Here, the district court found no evidence of
either disparate impact or racial discrimination.
Furthermore, the NAACP presented no evidence that
Bayonne manipulated the "bottom line" results of the four-
year moratorium.
The NAACP's reading of Teal -- that we must ignore the
bottom line -- is also inconsistent with Hazelwood and its
progeny. Those cases appear to point to the "bottom line" to
establish a prima facie case. Specifically, they state the
"proper comparison [is] between the racial composition of
[the at-issue jobs] and the racial composition of the
qualified persons in the labor market." Wards Cove, 490
U.S. at 650 (citations omitted).
The plaintiff must, of course, do more than point to the
"bottom line" to establish a prima facie case. The Supreme
Court has held that a plaintiff must also prove causation.
This was made clear when, seven years after Teal, the
Supreme Court held:
a Title VII plaintiff does not make out a case of
disparate impact simply by showing that, `at the
bottom line,' there is racial imbalance in the work
force. As a general matter, a plaintiff must demonstrate
that it is the application of a specific or particular
employment practice that has created the disparate
impact under attack. Such a showing is an integral
part of the plaintiff 's prima facie case in a disparate-
impact suit under Title VII.
Wards Cove, 490 U.S. at 657. The district court here
concluded the NAACP's statistical evidence failed to prove
how reinstituting the residency requirement would cause a
decrease in minority representation.
20
In finding that the NAACP failed to show causation, the
district court speculated that the civil service examination
may be the cause of Bayonne's low hiring rate of African
Americans. The court noted: "much is made of a 1996
police employment examination, which has a small number
of persons of . . . the black race, as being qualified, but that
list was not prepared or administered, nor reviewed by the
defendant." The NAACP itself acknowledged to the district
court: "When the residency requirement was lifted, [black
applicants] were knocked out by the [police] exam. We
believe this also occurred in the fire exam. . . . The test is
administered by the Department of Personnel. We are not
asking the Court to do anything about the test." J.A. at
1.66.
The district court found the NAACP failed to furnish
evidence of a causal relationship between the residency
requirement and the disparity in hiring. As we have
discussed, the evidence presented -- that the percentage of
African American municipal employees did not increase
during the four-year moratorium and even decreased for
police officers -- indicates that the district court did not
commit clear error when it found insufficient evidence of
causation. See Vulcan, 832 F.2d at 816 (finding district
court did not commit clear error when it found statistical
evidence flawed and unconvincing).
IV.
As we have noted, Bayonne hires employees for both
competitive and non-competitive jobs. The district court
focused its analysis almost entirely on hiring for
competitive jobs. In granting Bayonne's Rule 52 motion, the
court pointed to the civil service examination as the
probable cause of the alleged disparity and noted that the
examination is administered by the New Jersey Department
of Personnel, not Bayonne.23
_________________________________________________________________
23. The court noted the test "was prepared by the New Jersey
Department of Personnel, so to try to speak of visiting discrimination,
whether intentionally or inadvertently or institutionally, at the doorstep
of the municipality is not warranted factually, and that is why I dismiss
this case, because there is nothing to support it factually."
21
But Bayonne hires candidates for the non-competitive
jobs, like laborer and clerk typist, directly and appears to
have complete control over the process. Candidates for
these jobs do not have to take and pass the New Jersey
civil service examination. Furthermore, the residency
requirement for these positions was merely relaxed so that
non-residents who were hired had to move into Bayonne
within six months of their hiring. The district court made
no separate finding as to what impact, if any, this had on
Bayonne's hiring of African Americans and what impact the
reinstitution of that requirement has had on opportunities
for African Americans to work for Bayonne in non-
competitive jobs.
Under Rule 52(a), the district court shall makefindings
of fact. Although there is some evidence on the record
whether Bayonne discriminates in hiring non-competitive
employees, the district court made no findings. On this
record, we are unable to determine whether the NAACP has
established a prima facie case of discrimination under Title
VII in the City's hiring of non-competitive employees. We
will remand this matter to the district court.
V.
For the foregoing reasons, we will affirm in part, reverse
in part, and remand for proceedings consistent with this
opinion.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
22