APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY -- NEWARK
Before Hunter, Sloviter and Wisdom,*fn* Circuit Judges.
These two appeals involve allegations of racial discrimination in the hiring and promotion of firefighters in Newark, New Jersey.*fn1 Plaintiffs assert that defendants have violated 42 U.S.C. § 1981 (1976) and 42 U.S.C. § 2000e et seq. (1978) ("Title VII") by promulgating and using a Civil Service examination which resulted in a disproportionate number of black and Hispanic applicants being excluded from positions in the fire department. The district court dismissed the Title VII claims because plaintiffs had failed to file charges with the Equal Employment Opportunity Commission ("EEOC") within the statutorily-prescribed period. Summary judgment was entered for defendants on the remaining claims because plaintiffs had not alleged the presence of discriminatory intent. We have held these appeals under advisement, pending our decisions in Croker v. The Boeing Co., 662 F.2d 975 (3d Cir. 1981) and Bronze Shields, Inc. v. New Jersey Department of Civil Service, 667 F.2d 1074 (3d Cir. 1981). In light of these recent decisions,*fn2 we will affirm the conclusions of the district court.
The City of Newark uses the New Jersey Civil Service examination to determine initial eligibility for hiring and promotions in the fire department. The Civil Service examinations at issue are administered on a statewide basis; they are not limited to Newark residents. Between 1972 and 1976, the City of Newark hired and promoted firemen on the basis of these test results; those who scored highest were hired (or promoted) first. New Jersey municipalities were prohibited by law from granting any preference to municipal residents in firefighter appointments.
The names of those individuals who successfully completed the examination and met minimum qualifications were placed by the Civil Service on an eligibility list with placement determined by test results. This roster was subject to established veterans' preference requirements.*fn3 Once a particular roster had been promulgated, each applicant was notified as to whether he or she had passed the examination as well as the position he or she held on the roster.
In 1973, a complaint was filed in federal court by Vulcan Pioneers, Inc., alleging discrimination against blacks and Hispanics in the hiring and promotion of firefighters in Newark, New Jersey, in violation of 42 U.S.C. §§ 1981, 1983 (1976), and the thirteenth and fourteenth amendments. Two sub-classes were certified: blacks and Hispanics who were not hired because of discriminatory practices, and blacks and Hispanics not promoted because of discriminatory practices.
Ronald Heath, a black firefighter with the City of Newark since 1963, had competed in a promotional test for which an eligibility list was compiled on July 4, 1972, with an expiration date of July 3, 1975. Heath failed the examination. The last appointments made from the list were on June 30, 1975.
On July 27, 1976, Heath filed a complaint with the EEOC. He asserted that the New Jersey Department of Civil Service and the State Civil Service Commission administered hiring and promotional examinations for Newark firefighter positions which discriminated against blacks and Hispanics. He received a right-to-sue letter in April 1977, and the original complaint filed by Vulcan Pioneers was subsequently amended on January 6, 1978 to add a second count based on the Title VII charge filed by Heath.
On February 23, 1979, the district court, in an unpublished opinion, dismissed the Title VII claim on the ground that Heath's 1976 EEOC charge was not filed within the statutorily-designated period of 180 days.*fn4 The district court found that the charge of discrimination stemmed from the composition of the list and that an EEOC charge, to be timely, should have been filed within 180 days of the promulgation of the list on July 4, 1972. The district court held that the continued existence of the list did not toll the 180-day statutory period until the expiration of the list on July 3, 1975. Plaintiffs' cross-motion for certification of a Title VII class was denied as moot. Vulcan Pioneers v. New Jersey Department of Civil Service, No. 950-73 (D.N.J., filed Feb. ...