Antonelli v. New Jersey, Civ. No. 00-5725 (WHW).

310 F.Supp.2d 700

Daniel ANTONELLI, et al., Plaintiffs, v. State of NEW JERSEY, et al., Defendants.

Civ. No. 00-5725 (WHW).

United States District Court, D. New Jersey.

March 31, 2004.

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Robert J. Rohrberger, Fox & Fox, Esqs., Livingston, NJ, for Plaintiffs.

Barbara E. Thawley, Washington, DC, Barbara J. Stoop, Trenton, NJ, for Defendants.

Douglass L. Derry, Farrell & Thurman, PC, Skillman, NJ, for Plaintiffs/Defendants.

OPINION

WALLS, District Judge.

Defendants State of New Jersey and the United States each bring a Motion for Summary Judgment. Plaintiffs bring a Cross-Motion for Summary Judgment. Defendants also bring a Motion to Strike the October 20, 2003, Declaration of Robert J. Rohrberger. Defendants' Motions for Summary Judgment are granted. Plaintiffs' Cross-Motion for Summary Judgment is denied. The Motion to Strike is dismissed as moot.

FACTS AND PROCEDURAL BACKGROUND

In 1977, the United States filed its Complaint in United States v. New Jersey, alleging that the State of New Jersey and twelve cities also named as defendants were, among other things, engaged in a pattern or practice of employment discrimination by denying equal employment opportunity to black and Hispanic applicants for entry-level firefighter positions in violation of Section 707 of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-6 ("Title VII"). A Consent Decree resolving the United States's claims was approved and entered by the Court in 1980. That Consent Decree required the State and cities named to undertake affirmative action to increase the proportion of black and Hispanic personnel in their fire departments. In 1990, in settlement of a dispute between the United States and the State concerning the State's entry-level firefighter exam, a Supplemental Consent Order was approved and entered by the Court.

In this action, Plaintiffs challenge the administration and scoring of the entry-level firefighter exam administered by the New Jersey Department of Personnel ("NJDOP") in 1999 and 2000 (the "1999 exam"). The three components of the 1999 exam were: Part I, a multiple-choice cognitive test designed to assess the ability to read and perform basic math; Part II, a biographical questionnaire (the "biodata component"), part of which was used to assess teamwork skills; and Part III, a physical performance test ("PPT").

The biodata component was designed by Dr. Terry Mitchell, who first conducted a job analysis to determine the characteristics of effective firefighters. He identified three broad categories of characteristics to be used in evaluating candidates: physical performance, cognitive performance, and teamwork. He used this analysis along with further research to develop the biodata component. Dr. Mitchell's understanding at the time was that the entire biodata component, including the physical, cognitive, and teamwork questions, would constitute one-third of the overall exam score; he had developed the component with that idea in mind.

Plaintiffs allege that as of July 1999, the NJDOP had decided to use the entire biodata component as one-third of the exam score (i.e., as Part II), but that in May 2000 — after the administration of the exam — NJDOP decided to use the teamwork data of that component only. Defendants dispute this account. They point out that at a hearing on June 15, 1999, before the exam was given, Defendants discussed the three components of the exam with then-District Judge Politan. They told the Court that the biodata component as written measured physical, cognitive, and teamwork abilities, but that only the teamwork data would be used as part of a candidate's overall score. (Hr'g Tr. of 6/15/99, at 9.) The principal dispute at the hearing was what the relative weights of the three components of the exam should be. 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." (Order of 7/30/99 in United States v. New Jersey, emphasis added.)¹ On July 30, 1999, Judge Politan ordered that "[t]he cognitive, teamwork and physical performance 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 written components of the exam (Parts I and II) were administered in November 1999, and the physical component was administered in early 2000. The same exam was administered to all candidates and the exams were all scored using the same scoring key. All candidates were required to achieve the same minimum cut-off score on each exam component, and all candidates who passed each component of the exam were ranked according to a final score with each component equally weighted.

The NJDOP set the minimum cut-off scores for each component after the exam was administered. Before doing so, it analyzed whether various cut-off scores would have an adverse impact on candidates on the basis of race or sex. In doing so, the NJDOP was guided by the "four-fifths rule." Taken from the Uniform Guidelines on Employee Selection Procedures, 28 C.F.R. § 50.14, this rule holds that a selection rate for any race or sex that is greater than four-fifths of the rate of the group with the highest rate is generally regarded by federal enforcement agencies as evidence of no adverse impact. The cut-off scores established by the NJDOP resulted in a passing rate, in comparison to the passing rate of white candidates, of 84.4% for black candidates and 83% for Hispanic candidates. Defendants assert that the adverse impact analysis did not affect the setting of the cut-off score for Part II, as there was no adverse impact almost anywhere along the range of scores. Plaintiffs dispute this, claiming that the cut-off scores were determined solely on the basis of minimizing adverse impact.

In June 2000, the State filed a Motion for court approval of its use of the 1999 exam to certify firefighter candidates. In support of the Motion, the State stated that one of its main goals in the development and administration of the exam was to minimize adverse impact on minorities. The State explained what the cut-off scores were and how they were determined. Judge Politan granted the Motion, which authorized the NJDOP to establish firefighter eligibility lists based on the results of the 1999 exam. (Order of 6/29/00 in United States v. New Jersey.)

In January 2000, the NJDOP had informed Dr. Mitchell that, in addition to providing a score for total biodata for each candidate, he should prepare separate scores for the subparts of the biodata component (physical performance, cognitive performance, and teamwork). The NJDOP used this information to prepare the analysis described above. Plaintiffs allege that not until May 2000, after it had done this analysis, did the NJDOP decide to use only the teamwork questions from the biodata component as the score for Part II of the exam. The NJDOP disputes this, maintaining that while it set the cut-off scores after the administration of the exam, it made the decision to use only the teamwork questions beforehand. Dr. Mitchell objected to the proposed use of the teamwork questions only and refused to write a report validating the results of the scoring of Part II.

When the candidates received their final scores, they also received a pamphlet explaining how Part II was scored. It said that although the biodata component was designed to test physical performance, cognitive performance, and teamwork, "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." The pamphlet also explained that candidates would not be able to review the questions and scoring key to Part II because they were proprietary and to maintain test security.

This action arises from three actions styled Antonelli v. New Jersey, Deegan v. New Jersey, and FMBA v. New Jersey. In November 2000, several months after the establishment of new firefighter eligibility lists that resulted from the exam, the FMBA and the Antonelli Plaintiffs attempted to intervene in United States v. New Jersey to allege essentially the same claims they now allege in these consolidated actions. Their Motions to Intervene were denied. Thereafter, Plaintiffs filed three separate Complaints. All three cases have been consolidated.

Each of the remaining twenty-four Antonelli Plaintiffs and remaining three Deegan Plaintiffs failed the 1999 firefighter exam because each scored less than 46 (the cut-off score) on Part II. One of the Antonelli Plaintiffs and one of the Deegan Plaintiffs identify themselves as Hispanic males; the others identify themselves as non-Hispanic white or Caucasian males. Some of the individual Plaintiffs had applied for appointment by cities that are defendants in United States v. New Jersey, while others applied for appointment by cities that are not defendants. Plaintiff New Jersey State Firemen's Mutual Benevolent Association ("FMBA") is one of several fire service labor organizations in New Jersey. Although none of the individuals who took the 1999 exam was an FMBA member, the FMBA professes to have an interest in the exam both on behalf of its members and on behalf of non-minority and non-member firefighter candidates.

The Antonelli and Deegan Plaintiffs allege that New Jersey (the "State"), the NJDOP, and NJDOP officials (collectively, the "State Defendants") violated Plaintiffs' rights to due process and equal protection under the Fifth and Fourteenth Amendments to the United States Constitution, their rights secured by 42 U.S.C. § 1983, and their rights under the New Jersey Constitution and New Jersey civil...