On Appeal from the United States District Court for the District of New Jersey
(D.C. Civil Action No. 90-cv-00684)
Before: SCIRICA, ROTH and WEIS, Circuit Judges
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. Section(s) 2000e-2000e-17 (West 1994 & Supp. 1997) by requiring its employees to reside in Bayonne.
Bayonne is a "civil service" municipality *fn1 and hires 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. *fn2 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. *fn3
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.
Bayonne *fn4 hires its municipal employees in accordance with New Jersey's Civil Service Act, N.J. Stat. Ann. Section(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. Section(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.Section(s) 4A:4-1.1 (1995); Section(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. Section(s) 11A:4-1 (West 1993); N.J.A.C. Section(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. Section(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. Section(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. Section(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. *fn5 Otherwise, with limited exceptions not applicable here, Bayonne must hire the candidates in the exact rank order presented by the New Jersey Department of Personnel. N.J.A.C. Section(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. Section(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" requirement for police officers and fire-fighters; *fn6 (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 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. *fn7
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. *fn8 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. ...