Case 2:10-cv-00091-KSH-CLW Document 1 Filed 01/07/10 Page 1 of 10 PageID: 1

THOMAS E. PEREZ Assistant Attorney General JOHN M. GADZICHOWSKI Chief ESTHER G. LANDER Deputy Chief BARBARA E. THAWLEY MEREDITH BURRELL SenIor Trial Attorneys United States Department of Justice Civil Rights Division Employment Litigation Section 950 Pennsylvania Avenue, N.W. Patrick Henry Building, Room 4908 Washington, D.C. 20530 (202) 514-3852 Attorneys for Plaintiff United States

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

l
UNITED STATES OF AMERICA,

Plaintiff,

v.
STATE OF NEW JERSEY AND NEW JERSEY CIVIL SERVICE COMMISSION,

Civil Action No. - - - - -

Defendants.

COMPLAINT Plaintiff, United States of America, alleges:
1. This action is brought on behalf of the United States to enforce the provisions of Title VII of the Civil Rights Act of 1964,42 U.S.C. § 2000e, et seq., as amended ("Title VII").
2. This Court has jurisdiction of this action under 42 U.S.C. § 2000e-6(b), 28 U.S.C.

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§§ 1331 and 1343, and 28 U.S.C. § 1345. 3. Defendant State of New Jersey ("New Jersey") is a person within the meaning of
42 U.S.C. § 2000e(a), and an employer within the meaning of 42 U.S.C. § 2000e(b). 4. Defendant New Jersey Civil Service Commission ("NJCSC") is a five-member
body, each member of which is appointed by the Governor of New Jersey with the consent of the New Jersey Senate.
5. On June 30, 2008, the civil service responsibilities of the former New Jersey Department of Personnel were assumed by the NJCSC. With respect to time periods prior to that date, references to the NJCSC in this Complaint include and incorporate its predecessor, the former New Jersey Department of Personnel.
6. Under state law, the NJCSC is responsible for, inter alia, establishing procedures. for the promotion of law enforcement officers in municipalities and counties that participate in the New Jersey Civil Service system.
7. Defendant NJCSC is a person within the meaning of 42 U.S.C. § 2000e(a), and an employer within the meaning of 42 U.S.C. § 2000e(b).
8. Since at least 2000, the NJCSC has maIntained, and it continues to maintain, selection procedures for promotion to the rank of Police Sergeant. These procedures are utilized by hundreds ofNew Jersey cities and counties that participate in the New Jersey Civil Service system.
9. Since at least 2000, the NJCSC has administered, and it continues to administer, a written multiple.-choice examination as part of its Police Sergeant promotion procedures,. At all
relevant times, the NJCSC has been, and it continues to be, re"s-p-onsible for setting the minimum
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qualifications for admission to the examination, developing and administering the examination, scoring the examination, determining the pass/fail cutoff score that will be used on the examination, establishing Police Sergeant eligibility lists and certifying Police Sergeant candidates to the local jurisdictions participating in the New Jersey Civil Service system.
10. Police officers in local jurisdictions participating in the New Jersey Civil Service system cannot be considered for promotion to the position of Police Sergeant unless they take and pass the written examination administered by the NJCSC. Participating local jurisdictions cannot implement alternative selection procedures, use different written examinations from those administered by the NJCSC, or set different passing scores from those set by the NJCSC.
11. Police Sergeant candidates who meet the minimum qualifications set by the NJCSC and achieve a passing score on the NJCSC's written examination are placed on separate Police Sergeant "eligibility lists" by jurisdiction. On each eligibility list, the candidates are listed in descending rank-order based on their "final scores," which are a combination of their Police Sergeant written examination scores, weighted 80%, and seniority credits, weighted 20%.
12. Local jurisdictions participating in the New Jersey Civil Service system can make promotions to the rank of Police Sergeant only from a "certification list" established by the NJCSC at the request of the local jurisdiction. The NJCSC creates certification lists using the "Rule of Three" pursuant to New Jersey state law, N.J. S!at. Ann., § lIA:4-8. Under the "Rule of Three," for the first Police Sergeant vacancy in ajurisdictiori requesting a certification list; the NJCSC certifies the three highest-ranking candidates on the jurisdiction's eligibility list. For each additional vacancy, the NJCSC certifies the next ranked candidate on the eligibility list. If more than one candidate has the same final score, the tied candidates are certified together.
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13. Each year between 2000 and 2008, the NJCSC administered a written examination as part of the Police Sergeant promotional process.
14. For the entire period between 2000 and 2008, approximately 89% of the white candidates who took the written examination passed the examination, while only approximately 73% of the African-American candidates passed the examination. This difference between the pass rate of African-American candidates and that of white candidates is statistically significant.
15. Moreover, when each administration of the written examination between 2000 and 2008 is considered separately, African-American candidates passed at a rate statistically significantly lower than did white candidates in each year.
16. For the entire period between 2000 and 2008, while approximately 89% of the white candidates who took the written examination passed the examination, only approximately 77% of the Hispanic candidates passed the examination. This difference between the pass rate of Hispanic candidates and that of white candidates is statistically significant.
17. Moreover, when each administration of the written examination between 2000 and 2008 is considered separately, Hispanic candidates passed at a rate lower than the rate at which white candidates passed in each year, and the difference in pass rates is statistically significant for each year between 2001 and 2008.
18. Because the NJCSC ranks candidates for promotion to Police Sergeant on eligibility lists based upon the candidates' combined written examination scores a1;ld seniority credits, and certifies candidates in descending rank-order from the eligibility lists, many candidates who pass the written examination do not rank high enough to be certified or promoted.
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19. Among candidates who passed the NJCSC Police Sergeant written examination, African Americans were under-represented in the higher score ranges and over-represented in the lower score ranges for each year between 2000 and 2008. Thus, for each administration of the examination between 2000 and 2008, the mean written examination score of African-American candidates was statistically significantly lower than the mean written examination score of white candidates.
20. The difference between the African-American and white mean scores on the
written examination are reflected in the final (i. e. , combined written examination and seniority)
scores of candidates who passed the written examination. Thus, for each year from 2000 to 2008, the mean final score of African-American candidates was statistically significantly lower than the mean final score of white candidates.
21. Among candidates who passed the NJCSC Police Sergeant written examination, Hispanics were under-represented in the higher score ranges and over-represented in the lower score ranges for each year between 2001 and 2008. Thus, for each administration of the examination between 2001 and 2008, the mean written examination score of Hispanic candidates was statistically significantly lower than the mean written examination score of white candidates.
22. The difference between theHispanic and white mean scores on the written examination are reflected in the final (i. e., combined written examination and seniority) scores of candidates who passed the written examination. Thus, for each year from 2001 to 2008, the mean final score of Hispanic candidates was statistically significantly lower than the mean final score of white candidates.
23. In those jurisdictions for which the NJCSC established eligibility lists that
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contained both white candidates and African-American or Hispanic candidates, AfricanAmerican and Hispanic candidates were less likely to rank high enough to be placed on a certification list and considered for promotion than were white candidates. Between 2000 and 2008, approximately 35% of the white candidates on the eligibility lists in such jurisdictions were certified, while approximately 20% of African-American candidates and 22% of Hispanic candidates were certified. Similarly, whil~ approximately 18% of the white candidates on the eligibility lists in such jurisdictions were promoted, approximately 9% of African-American candidates and 13% of Hispanic candidates were promoted.
24. Defendants' pass/fail use of the NJCSC Police Sergeant written examination to screen candidates for promotion and defendants' certification of candidates in descending rankorder, based on a combination of candidates' written examination scores and seniority credits, have resulted in disparate impact upon African-American candidates.
25. Defendants' pass/fail use of the NJCSC Police Sergeant written examination to screen candidates for promotion and defendants' certification of candidates in descending rankorder, based on a combination ofcandidates, written examination scores and seniority credits, have resulted in disparate impact upon Hispanic candidates.
26. Defendants have not demonstrated that their pass/fail use of the NJCSC Police Serg~ant written examination or their certification of candidates in descending rank-order, based on a combination of candidates' written examination scores anaseniority credits, is job related for the Police Sergeant position and consistent with business necessity.
27. Defendants have pursued and continue to pursue policies and practices that discriminate against African-American and Hispanic candidates and that deprive or tend to
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deprive African Americans and Hispanics of employment opportunities or adversely affect their status as employees because of their race and national origin in violation of Section 707 of Title VII, 42 U.S.C. § 2000e-6. Defendants have implemented these polices and practices, among other ways, as follows:
a. by using written promotional examinations as pass/fail screening devices in a manner that results in disparate impact upon African-American and Hispanic candidates for promotion to the position of Police Sergeant, is not job related for the position in question and consistent with business necessity, and does not otherwise meet the requirements of Section 703(k) of Title VII, 42 U.S.C. § 2000e-2(k);
b. by certifying candidates for promotion to the position of Police Sergeant from eligibility lists in descending rank-order, based upon a combination of candidates' scores on the Police Sergeant written examination and seniority credits, where such rank-order certification results in disparate impact upon African-American and Hispanic candidates, is not job related for the position in question and consistent with business necessity, and does not otherwise meet the requirements of Section 703(k) of Title VII, 42 U.S.C. § 2000e-2(k); and
c. by failing or refusing to take appropriate actions to correct the present effects of their discriminatory promotional practices.
28. The policies and practices of defendants described in Paragraphs 8 through 27 supra, constitute a pattern or practice of resistance to the full enjoyment by African Americans and Hispanics of their right to equal employment opportunities without discrimination based on
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race or national origin, in violation of Section 707 of Title VII, 42 U.S.C. § 2000e-6. This pattern or practice is of such a nature and is intended to deny the full exercise of the rights secured by Title VII. Unless restrained by. order of this Court, defendants will continue to pursue policies and practices that are the same as or similar to those alleged in this Complaint.
29. All conditions precedent to the filing of this lawsuit have been performed or have occurred.
WHEREFORE, the United States prays for an order enjoining defendants, the State of New Jersey and the New Jersey Civil Service Commission, and their officers, agents, employees, successors and all persons in active concert or participation with them from engaging in employment practices which discriminate against African Americans on the basis of Race and Hispanics on the basis of national origin in violation of Title VII, and specifically from:
a. using written promotional examinations as pass/fail screening devices in a manner that results in disparate impact upon African-American and Hispanic candidates for promotion to the position of Police Sergeant, that are not job related for the position in question and consistent with business necessity, and do not otherwise meet the requirements of Section 703(k) of Title VII, 42 U.S.C. § 2000e-2(k);
b. certifying candidates for promotion to the position of Police Sergeant from eligibility lists in descending rank-order, based upon a combination of Qandidates scores on the written examination and seniority credits, where such rank-order certification results in disparate impact upon African-American and Hispanic candidates, is not job reiated for the position in question and consistent with business necessity, and does not otherwise meet the requirements of Section
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703(k) of Title VII, 42 U.S.C. § 2000e-2(k); c. failing or refusing to provide make-whole relief, including back pay with interest
and promotion with retroactive seniority, to individuals who have suffered loss or will suffer loss as a result of the discriminatory policies and practices alleged in this Complaint; and d. failing or refusing to take appropriate action to overcome the present effects of the defendants' discriminatory policies and practices, including but not limited to the following: (i) adopting promotional procedures that do not result in disparate impact or
that otherwise comply with Title VII; and (ii) taking such other reasonable actions that are necessary to correct the
present effects of past discrimination. Plaintiff United States prays for such additional relief as justice may require, together with its costs and disbursements in this action.
ERIC H. HOLDER Attorney General THOMAS E. PEREZ Assistant Attorney General Civil Rights Division
By:
Employment Litigation Section
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By: sf Esther Lander ESTHER LANDER (DC Bar No. 461316) Deputy Chief
By: sf Barbara E. Thawley BARBARA THAWLEY (DC Bar No. 358944) MEREDITH 1. BURRELL (MD Bar, no number) Senior Trial Attorneys U.S. Department of Justice Civil Rights Division . Employment Litigation Section 950 Pennsylvania Avenue, N. W. Patrick Henry Building, Room 4908 Washington, D.C. 20530 Telephone: (202) 514-3852 Facsimile: (202) 514-1105 Barbara.E. Thawley@usdoj.gov United States Attorney's Office Peter Rodino Federal Building 970 Broad Street, Suite 700 Newark, New Jersey 07102 (973) 645-2700 Attorneys for Plaintiff United States
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 Case 2:10-cv-00091-KSH-CLW Document 49 Filed 11/22/11 Page 1 of 39 PageID: 682

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

NEWARK VICINAGE

___________________________________

)

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

v.

)

Civil Action No.

)

2:10- cv-00091-KSH-MAS

STATE OF NEW JERSEY AND

)

NEW JERSEY CIVIL SERVICE

)

Hon. Katharine S. Hayden

COMMISSION,

)

)

Defendants.

)

___________________________________ )

SECOND AMENDED CONSENT DECREE

This action was brought by the United States against the State of New Jersey and the New Jersey Civil Service Commission (the “State”) to enforce the provisions of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended (“Title VII”). This Court has jurisdiction of this action under 42 U.S.C. § 2000e-6 and 28 U.S.C. §§ 1343(a)(3) and 1345.
In its Complaint, the United States alleges that the State has pursued policies and practices that discriminate against and deprive or tend to deprive African Americans and Hispanics of employment opportunities because of their race and/or national origin, in violation of Section 703(a) of Title VII, 42 U.S.C. § 2000e-2(a). Specifically, the United States alleges that since 2000, the State’s (i) pass/fail use of a police sergeant written exam; and (ii) certification of police sergeant candidates in descending rank order based on a combination of candidates’ written exam scores and seniority credits have resulted in a disparate impact upon

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African-American and Hispanic candidates for promotion to police sergeant in local jurisdictions
participating in New Jersey’s civil service system. The United States further alleges that the
State’s uses of the written exam have not been shown to be job related for the position of police sergeant and consistent with business necessity.1
The State denies that it has violated Title VII. Nevertheless, the United States and the
State desire that this action be settled by an appropriate Consent Decree (“Decree”) without the
burden of protracted litigation, and agree to the jurisdiction of this Court over the Parties and the
subject matter of this action. The United States and the State further agree to the entry of this
Decree as final and binding between themselves as to the issues raised in the United States’
Complaint in this action. Subject to the Court’s approval of this Decree, the Parties waive
hearings and findings of fact and conclusions of law on all issues, except as to the following,
which the United States contends, the Court finds, and for purposes of this Consent Decree only
and without admitting liability, the State does not dispute for purposes of these proceedings only:2
a. Since at least 2000, the selection process used by the State in the screening and selection of candidates for promotion into the position of police sergeant in local jurisdictions throughout New Jersey that participate in the New Jersey civil service system has included the administration of a written exam (“police sergeant written exam”). Candidates cannot be considered for promotion to police sergeant unless they take and pass the police sergeant written exam.
b. Candidates who meet the minimum qualifications set by the State and who achieve a passing score on the police sergeant written exam are placed on eligible lists for each
1 This action alleges disparate impact discrimination. The United States does not allege in its Complaint that the State has intentionally discriminated against any person or group of persons under Title VII. 2 The facts are based on the Declarations of Dr. Bernard Siskin, Ph.D., and Dr. David P. Jones, Ph.D., attached to the Parties’ joint memorandum in support of entry of this Decree.
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local jurisdiction in descending rank order based on their final scores. Final scores are a combination of police sergeant exam scores, weighted 80 percent, and seniority credits, weighted 20 percent.
c. From 2000 to 2009, African-American and Hispanic candidates passed the police sergeant written exam at a lower rate than white candidates, and the disparity in pass rates is statistically significant.
d. From 2000 to 2008, African-American and Hispanic candidates ranked lower on eligible lists than white candidates, and the disparity in ranks is statistically significant.
e. The State’s use of the police sergeant written exam as a pass/fail screening device from 2000 to 2009 resulted in a disparate impact upon African-American and Hispanic candidates for promotion to police sergeant sufficient to establish a prima facie case under Title VII.
f. The State’s determination and use of final scores to certify candidates from eligible lists in descending rank order from 2000 to 2008 resulted in a disparate impact upon African-American and Hispanic candidates sufficient to establish a prima facie case under Title VII.
g. At least 48 additional African Americans would have been promoted to the position of police sergeant in local jurisdictions throughout New Jersey from 2000 to 2009 absent the disparate impact resulting from the State’s pass/fail use of the police sergeant written exam and from the State’s determination and use of final scores to certify candidates in descending rank order.
h. At least 20 additional Hispanics would have been promoted to the position of police sergeant in local jurisdictions throughout New Jersey from 2000 to 2009 absent the disparate impact resulting from the State’s pass/fail use of the police sergeant written exam and from the State’s determination and use of final scores to certify candidates in descending rank order.
i. The State’s use of the police sergeant written exam as a pass/fail screening device and the State’s determination and use of final scores to certify candidates from eligible lists in descending rank order are not job related or consistent with business necessity under professionally acceptable standards for validity.3
3 The United States also contends that alternative selection devices exist to select candidates for supervisory, public safety positions that would have served the State’s legitimate needs and that have been demonstrated to have less adverse impact. Since the parties are proceeding under the theory that the challenged employment practices are not job related and consistent with business necessity, it is unnecessary to set forth these alternatives.
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j. The retroactive seniority awarded to Claimants under this Decree does not exceed the seniority lost by African-American and Hispanic candidates from 2000 to 2009 as a result of the State’s pass/fail use of the police sergeant written exam and from the State’s determination and use of final scores to certify candidates in descending rank order.
k. The relief provided by this Decree does not exceed make-whole relief to individuals who would be considered victims of the practices challenged by the United States, and the procedures set forth in this Decree for identifying Claimants and allocating relief among them is fair, reasonable, equitable and otherwise consistent with federal law.
l. Priority promotions and awards of retroactive seniority under this Decree are remedial relief for identified individuals based on their status as victims of the practices challenged by the United States and do not constitute race-conscious “affirmative action.”
In resolution of this action, with the consent of the Parties, IT IS THEREFORE
ORDERED, ADJUDGED AND DECREED as follows:
I. DEFINITIONS AND PARTIES
1. The “Parties” to this Decree are the United States, by the Department of Justice,
(“United States”) and the State of New Jersey and the New Jersey Civil Service Commission
(collectively, the “State”).
2. “Back pay” refers to a monetary award that represents the value of some or all of
the wages that a Claimant would have received if he or she had been promoted to the position of
police sergeant on the Claimant’s presumptive appointment date as defined in Paragraph 9.
3. “Claimant” refers to any African-American or Hispanic person from those
jurisdictions identified in Attachment A who has not been promoted to police sergeant and who:
a. between 2000 and 2009, failed a police sergeant written exam where appointments from the eligible list resulted in a shortfall of his or her race; or
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b. between 2000 and 2008, passed a police sergeant written exam where appointments from the eligible list resulted in a shortfall of his or her race, but ranked below the lowest-ranking candidate appointed from that eligible list.
Attachment A sets forth the type of individual relief for which Claimants in specified jurisdictions are eligible. The names of those Claimants who are eligible for back pay are listed in Attachment B of this Decree. The names of those Claimants who are eligible for both back pay and priority promotion are listed in Attachment C of this Decree.
4. “Days” refers to calendar days unless business days are clearly specified in the context of a specific provision of this Decree. If any deadline referenced in this Decree should fall on a weekend or federal holiday, the deadline shall be moved to the next business day.
5. “Entry” of the Decree refers to the date that the Court orders entry of the Decree following the Initial Fairness Hearing described in Section IV of this Decree.
6. “Individual relief” refers to a monetary award in the form of back pay and/or an offer of priority promotion, including retroactive seniority that a Claimant may receive pursuant to the terms of this Decree.
7. “Local jurisdiction” refers to a municipality or county participating in the State of New Jersey’s civil service system.
8. “Police sergeant” refers to a person promoted to a police sergeant position in a local jurisdiction participating in the State of New Jersey’s civil service system, regardless of whether the person has completed any applicable probationary or working test period.
9. “Presumptive appointment date,” with respect to a Claimant, refers to the start date that would have been available to the Claimant after he or she first:
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a. between 2000 and 2009, failed a police sergeant written exam where appointments from the eligible list resulted in a shortfall of his or her race; or
b. between 2000 and 2008, passed a police sergeant written exam where appointments from the eligible list resulted in a shortfall of his or her race, but ranked below the lowest-ranking candidate appointed from that eligible list.
The presumptive appointment date for each Claimant is based upon the median appointment date for candidates on the eligible list that would have included the Claimant or from which the Claimant would have been appointed. The presumptive appointment date for each Claimant eligible for both back pay and priority promotion is listed in Attachment C of this Decree.
10. “Retroactive seniority” refers to the seniority that the State will ensure Claimants who are awarded a priority promotion will receive. The amount of retroactive seniority will be based upon the presumptive appointment date of the Claimant, as defined in the preceding Paragraph. A Claimant’s retroactive seniority date shall apply only to the calculation of seniority points for purposes of promotion. A Claimant’s retroactive seniority shall not be used to satisfy any applicable probationary/working test period or time-in-grade requirement for eligibility for promotion.
11. “Selection device” refers to any exam, test, requirement or criterion used to evaluate a person’s qualifications for appointment to the position of police sergeant (e.g., application, written exam, oral interview, physical exam, and background investigation). II. PURPOSES OF CONSENT DECREE
12. The purposes of this Decree are to ensure that: a. The State does not violate Title VII by using policies or practices for promotion to the position of police sergeant that violate Title VII on the basis of race and/or national origin;
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b. The State utilizes a new, lawful selection procedure that will serve the purposes of ensuring that promotions to police sergeant are based on merit and that the State’s selection procedure does not unnecessarily exclude qualified African-American and Hispanic candidates; and
c. The State provides, as appropriate, back pay and/or priority promotions with retroactive seniority to qualified persons who were denied a promotion to police sergeant due to the employment practices challenged by the United States in this case.
III. GENERAL INJUNCTIVE RELIEF 13. The State, its officials, agents, employees and successors, and all persons acting
on behalf of or in active concert or participation with the State, are enjoined from using any selection device for the position of police sergeant that has a disparate impact upon AfricanAmerican or Hispanic candidates on the basis of race or national origin and is not job related for that position and consistent with business necessity, or otherwise does not meet the requirements of Title VII.
14. The State, its officials, agents, employees and successors, and all persons acting on behalf of or in active concert or participation with the State, are enjoined from engaging in any act of retaliation or act which in any respect adversely affects a person on account of that person’s participation in or cooperation with the initiation, investigation, litigation or administration of this case or this Decree or on account of that person receiving any relief pursuant to this Decree.
15. The State shall cease administering the existing police sergeant written exam challenged by the United States in this case to screen, select and appoint candidates for promotion to police sergeant. As set forth in Section VII of this Decree, a new and lawful selection device will be developed for purposes of screening, selecting or appointing persons to police sergeant positions.
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16. The State shall cease using current eligible lists as part of its selection procedure for police sergeant in the local jurisdictions set forth in Attachment D, where continued use of such lists would result in a disparate impact upon African Americans or Hispanics and create an additional “shortfall” of African Americans or Hispanics who would have been promoted but for the State’s uses of the challenged exam. 4 In that regard, until the current eligible lists for jurisdictions listed in Attachment D expire, the State shall provide all certification requests from those jurisdictions to the United States prior to certifying candidates to the jurisdiction for promotion. The United States shall determine through its expert whether the requested certification(s) would create an additional African-American or Hispanic shortfall in that jurisdiction. For purposes of determining whether an additional shortfall would result, the United States will treat each request for certification as an actual appointment. If an additional shortfall would not be created by the appointments, then the United States will notify the State and the certification(s) may be made.
17. Notwithstanding the foregoing, the State may use existing eligible lists in all other local jurisdictions where continued use of such lists is not likely to result in a disparate impact upon African Americans or Hispanics and/or create an additional “shortfall” of African Americans or Hispanics who would have been promoted but for the State’s uses of the challenged exam. The use of these existing eligible lists will be an interim measure to fill police sergeant vacancies until an alternative selection device is approved and adopted in accordance with the terms of this Decree, as set forth in Section VII. The State shall not extend any existing eligible lists without the approval of the United States.
4 The methodology for determining the shortfall number is set forth in Paragraphs 11-13 of Dr. Siskin’s Declaration.
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18. The State shall designate a person who shall be responsible for enforcing the provisions of this Decree. This person’s responsibilities shall include, but not be limited to, ensuring that the State fully implements and complies with all paragraphs of this Decree, and receiving complaints of discrimination on the basis of race and/or national origin in the screening, selection and appointment of police sergeants. IV. NOTICE OF CONSENT DECREE AND INITIAL FAIRNESS HEARING
19. Upon execution of this Decree, the United States shall file an unopposed motion for the provisional approval and entry of the Decree by the Court and shall request an Initial Fairness Hearing on the terms of the Decree (“Initial Fairness Hearing”) so that the Court may determine whether the terms of the Decree are fair, reasonable, equitable and otherwise consistent with federal law. The Court shall provide the Parties with at least ninety (90) days notice of the date and time set for this Initial Fairness Hearing. The Court shall hold the Initial Fairness Hearing on March 12, 2012 at 10:00 a.m.
20. The purpose of the Initial Fairness Hearing and the related notification provisions of this Decree is to provide to all persons who may be affected by the terms of the Decree notice and an opportunity to present objections prior to final entry of the Decree, in accordance with Section 703(n) of Title VII, 42 U.S.C. ' 2000e-2(n).
21. No later than seventy-five (75) days prior to the Initial Fairness Hearing, the State or its designee shall provide copies of a Notice of Settlement and Fairness Hearing, Instructions for Filing an Objection Prior to the Fairness Hearing, and a blank Objection to the Entry of the Consent Decree, in the formats set forth in Attachment E:
a. via certified U.S. mail to the last known address of each African-American or Hispanic person identified in Attachments B and C, along with a cover letter in the format set forth in Attachment F to this Decree; 9

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b. to each police sergeant, as defined above, via hand delivery at the place of the person’s employment or as an attachment to or enclosure with each such person’s regularly distributed paycheck or notice of electronic deposit, along with a cover letter in the format set forth in Attachment G to this Decree; and
c. via certified U.S. mail to the appointing authority in each local jurisdiction participating in the State of New Jersey’s civil service system, to each union or association recognized as being authorized to represent police sergeants in each such local jurisdiction and to police officers in the local jurisdictions identified in Attachments D and K.
At or before the time notices are provided pursuant to preceding subparagraphs (a)-(c), the State shall provide to the United States a list stating the name and last known address of each person or entity to whom such notice is being sent.
22. No later than seventy-five (75) days prior to the Initial Fairness Hearing, the State shall post the Notice of Settlement and Fairness Hearing, Instructions for Filing an Objection Prior to the Fairness Hearing, and a blank Objection to the Entry of the Consent Decree in the formats set forth in Attachment E on the State’s and/or Civil Service Commission’s website in a conspicuous location.
23. No later than seventy-five (75) days prior to the Initial Fairness Hearing, the State shall publish a Notice of Settlement and Fairness Hearing, in a form substantially the same as contained in Attachment E to this Decree, in newspapers or other widely-disseminated media. The published notice shall appear with a headline in bold typeface, surrounded by a dark border, shall be no smaller than 6 inches by 10 inches in size, shall be placed in the local news section or other prominent location agreed to by the Parties and shall be published for fourteen (14) days.
24. Persons who wish to object to the terms of the Decree may file objections, in accordance with the requirements set forth in Attachment E, as follows:
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a. Objections shall state the objector’s name, address and telephone number; set forth a description of the objector’s basis for objecting; include copies of any documentation supporting the objections; state the name and address of the objector’s counsel, if any; and state whether the objector wishes the opportunity to be heard in Court at the Initial Fairness Hearing.
b. Objections shall be mailed to the United States Department of Justice at the following address:
State of New Jersey Settlement Team Employment Litigation Section U.S. Department of Justice Civil Rights Division Post Office Box 14400 Washington, DC 20044-4400
c. Objections must be mailed and postmarked to the United States no later than forty-five (45) days prior to the date set for the Initial Fairness Hearing. Any person who fails to do so shall be deemed to have waived any right to object to the terms of this Decree, except for good cause as determined by the United States.
25. The United States shall serve upon the State copies of the objections it has
received no later than thirty (30) days prior to the date set for the Initial Fairness Hearing.
26. No later than ten (10) days prior to the Initial Fairness Hearing, the United States
shall file with the Court copies of all timely objections received by the United States. If the
United States receives any objection(s) timely sent but received after the deadline set forth in
Paragraph 24(c), the United States will supplement promptly its filing with the Court and its
mailing to the State. In addition, no later than ten (10) days prior to the Initial Fairness Hearing,
the Parties shall file their responses, if any, to all objections timely sent to the United States.
V. ENTRY OF THE CONSENT DECREE
27. If the Court determines that the terms of this Decree are fair, reasonable, equitable
and otherwise consistent with federal law, the Court shall enter the Decree at or following the
Initial Fairness Hearing.
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VI. INDIVIDUAL RELIEF A. Deposit of the Settlement Fund 28. Within thirty (30) days after the date of entry of this Consent Decree by the Court,
the State shall deposit the sum of one million dollars ($1,000,000.00) into two interest-bearing accounts ( “Settlement Fund I” and “Settlement Fund II”), in a federally-insured financial institution agreed to by the Parties. The total of one million dollars ($1,000,000.00) shall be allocated as follows: the State shall deposit $710,000 into Settlement Fund I and $290,000 into Settlement Fund II.
29. Settlement Fund I, including any interest accrued on the amount deposited by the State into Settlement Fund I pursuant to the preceding Paragraph, shall be used by the State to make back pay awards to eligible African-American Claimants. Settlement Fund II, including any interest accrued on the amount deposited by the State into Settlement Fund II pursuant to the preceding Paragraph, shall be used by the State to make back pay awards to eligible Hispanic Claimants. The Settlement Fund from which a back pay award is drawn for any Claimant who identifies himself/herself as both African American and Hispanic shall be determined at the sole discretion of the United States. Any Claimant who the United States determines shall be paid from Settlement Fund I shall be considered an African-American Claimant for purposes of the priority appointment requirements of the Decree, and any Claimant who the United States determines shall be paid from Settlement Fund II shall be considered a Hispanic Claimant for purposes of the priority appointment requirements of the Decree.
30. No later than seven (7) days from the date of entry of this Decree, the State shall propose in writing to the United States a federally-insured financial institution for deposit of Settlement Funds I and II. The United States shall provide a written response to the State’s
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proposal no later than seven (7) days after receipt of the State’s proposal, either consenting to the proposed financial institution or objecting and proposing an alternative financial institution. If the Parties cannot agree on a federally-insured financial institution, either party may submit the dispute to the Court for resolution upon providing the other party with seven (7) days written notice of its intent.
B. Back Pay Awards from the Settlement Funds 31. Back pay awarded under this Decree will be paid by the State directly to Claimants upon approval by the Court of the Final Relief Awards List and in accordance with the process set forth in Section J of this Decree. The State shall withhold from each Claimant’s back pay award all appropriate federal and state income taxes and the employee’s Medicare and FICA tax. C. Notice to Individuals Potentially Eligible for Relief 32. Individuals potentially eligible for relief under this Decree shall include all Claimants as that term is defined in this Decree. 33. Within thirty (30) days after entry of the Decree, the State shall send a copy of the Notice of Entry of Consent Decree and Interest in Back Pay Form or Interest in Back Pay and/or Priority Promotion Form set forth in Attachment H to this Decree, by certified U.S. mail, return receipt requested, to the last known address of each Claimant. The State shall keep records of all notices required by this Paragraph that are returned as undeliverable. Within twenty-one (21) days of the mailing of the notices, the State shall provide to the United States a list of all delivered and undelivered notices and a copy of all notices, envelopes and mail receipts for all persons to whom a notice was sent. If the United States provides the State with an alternative address for any person whose notice was returned as undeliverable, the State shall re-mail
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promptly the notice to the alternative address for that individual by certified U.S. mail, return receipt requested. If requested, the State shall provide to the United States information available to the State that may allow the United States to locate an alternative address for any person whose notice was returned as undeliverable.
D. Claimants to Submit Interest in Back Pay Form or Interest in Back Pay and/or Priority Promotion Form
34. In order to be eligible for relief under this Decree, a Claimant must return the completed Interest in Back Pay Form or Interest in Back Pay and/or Priority Promotion Form (Attachment H) to the United States no later than sixty (60) days from the date of entry of this Decree. Any Claimant who fails to do so shall be deemed to have waived any right to be considered for an award of individual relief under this Decree, except for good cause as determined by the United States. The date the Interest in Back Pay Form or Interest in Back Pay and/or Priority Promotion Form was mailed or otherwise delivered to the United States shall be deemed the date of return of the Claimant’s form. In the event that an Interest in Back Pay Form or Interest in Back Pay and/or Priority Promotion Form is returned by U.S. mail but no date of mailing is indicated by a postmark of the United States Postal Service, the date of return of the Interest in Back Pay Form or Interest in Back Pay and/or Priority Promotion Form shall be deemed to be five (5) days prior to the date the form was received by the United States.
E. Initial Determination of Claimants’ Preliminary Eligibility for Individual Relief
35. Within one hundred twenty (120) days after entry of this Decree, the United States shall provide to the State a Preliminary Relief Awards List that identifies all Claimants who have submitted an Interest in Back Pay Form or Interest in Back Pay and/or Priority Promotion Form to the United States and are preliminarily eligible for back pay and/or priority
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promotions. The list required by this Paragraph shall indicate the type(s) of relief, if any, for which the United States has determined each such Claimant is preliminarily eligible, and each such Claimant’s presumptive appointment date for those preliminarily eligible for priority promotions, as defined in this Decree. If the United States determines that any Claimant is not preliminarily eligible for a type of relief sought by the Claimant, the Preliminary Relief Awards List will include the reason(s) for that determination.
36. No later than one hundred fifty (150) days after entry of the Decree, the State shall provide to the United States in writing all of its objections, if any, to the eligibility of any Claimant(s) to compete for priority promotions as preliminarily determined by the United States. The State may object to the eligibility of any Claimant only on the basis that the Claimant was not qualified for the position of police sergeant using the lawful, objective appointment criteria in use by the State at that time. Each such objection shall state all grounds for the objection, identify all witnesses with knowledge of facts supporting the objection and include a copy of all documents supporting each objection.
F. Parties to Attempt to Resolve Any Disputes over Priority Promotions 37. The Parties shall make good faith efforts to resolve any disagreements, or objections submitted to the United States, regarding any Claimant’s eligibility to compete for a priority promotion for which the Claimant has been deemed preliminarily eligible. 38. Upon the United States’ request, the State shall make available within ten (10) days, for interview or deposition (at the United States’ option), all available officials, agents and employees of the State with knowledge of facts supporting the State’s objections made pursuant to Paragraph 36.
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39. If the Parties are unable to resolve a dispute, the United States or the State may request that the Court resolve the dispute at the Fairness Hearing on Individual Relief pursuant to Paragraph 43. The State shall bear the burden of proving by a preponderance of the evidence that the Claimant is not eligible for a priority promotion.
G. Filing of Relief Awards List 40. No later than one hundred eighty (180) days after entry of the Decree, the United States shall file with the Court a Relief Awards List stating, for each Claimant who returned an Interest in Back Pay Form or Interest in Back Pay and/or Priority Promotion Form, the type(s) of relief sought by the Claimant, the type(s) of relief for which the United States deems the Claimant eligible, the amount of back pay (if any) for each Claimant and, for those eligible to compete for priority promotions, the Claimant’s presumptive appointment date. In addition, for each Claimant the United States deems eligible for back pay, the Relief Awards List shall state the share of Settlement Fund I or II that the United States has determined should be awarded to the Claimant. The United States shall simultaneously serve a copy of the Relief Awards List upon the State. 41. The United States shall determine each Claimant’s share of Settlement Fund I or II in a manner that is reasonable and equitable based upon a determination of the shortfall, the salary differentials in each local jurisdiction and the total amount of the appropriate Settlement Fund, and that is otherwise consistent with the provisions of this Decree. 42. In order to be eligible for back pay under this Decree, a Claimant need not express an interest in, or be eligible for, a priority promotion or accept an offer of appointment with a local jurisdiction.
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H. Fairness Hearing on Individual Relief 43. Upon filing the Relief Awards List described in Paragraph 40 of this Decree, the United States shall move the Court to hold a Fairness Hearing on Individual Relief to allow the Court to determine whether the Relief Awards List filed by the United States should be approved or amended. The Court shall provide the Parties with at least ninety (90) days notice of the date and time set for the Fairness Hearing on Individual Relief. 44. No later than eighty days (80) days before the date set for the Fairness Hearing on Individual Relief, the United States shall send, by certified U.S. mail, return receipt requested, to each Claimant, addressed to the last known or corrected/updated address of such Claimant, a Letter to Claimants, Instructions for Filing an Objection to Individual Relief and an Objection form, in the formats attached as Attachment I to this Decree, notifying the Claimant of (i) the United States’ determinations regarding the Claimant’s eligibility for relief under the Decree; (ii) the reasons for any determination that the Claimant is ineligible for any particular form of relief; (iii) whether the Claimant’s eligibility to compete for a priority promotion has been disputed by the State and, if so, the reason(s) why; (iv) the Claimant’s proposed share of back pay as stated on the Relief Awards List, if any; and (v) notice of the Fairness Hearing on Individual Relief and the procedure for filing an objection. 45. For each Claimant the United States has determined is eligible to compete for priority promotion, as indicated in the Relief Awards List, no later than seventy (70) days before the date set for the Fairness Hearing on Individual Relief, the State shall provide to the United States and file with the Court notice of any objection(s) the State has to the United States’ determination. The State may not object to any Claimant’s eligibility to compete for a priority promotion unless, pursuant to Paragraph 36 of this Decree, the State objected to a preliminary
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determination by the United States that the Claimant was eligible to compete for a priority
promotion, and may not object on any grounds or support its objections with any documents or
testimony not timely disclosed to the United States pursuant to Paragraph 36 of this Decree. The
State may not object to the United States’ determinations regarding back pay reflected in the
Relief Awards List filed by the United States.
46. Claimants who wish to object to the United States’ relief determinations may file
in accordance with Attachment I as follows:
a. Objections shall state the Claimant’s name, address and telephone number; set forth a description of the Claimant’s basis for disputing the United States’ relief determination; include copies of any documentation supporting the objections; state the name and address of the Claimant’s counsel, if any; and state whether the Claimant wishes the opportunity to be heard in court at the Fairness Hearing on Individual Relief.
b. Objections shall be submitted by mailing a copy of the Objection form to the United States Department of Justice at the following address:
State of New Jersey Settlement Team Employment Litigation Section U.S. Department of Justice Civil Rights Division Post Office Box 14400 Washington, DC 20044-4400
c. Objections must be mailed and postmarked to the above address no later than sixty (60) days prior to the date set for the Fairness Hearing on Individual Relief.
47. The United States shall serve upon the State copies of the objections it has
received no later than thirty (30) days prior to the date set for the Fairness Hearing on Individual
Relief.
48. No later than ten (10) days prior to the Fairness Hearing on Individual Relief, the
United States shall file with the Court copies of all timely objections received by the United
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States. If the United States receives any objection(s) timely sent but received after the deadlines set forth in Paragraph 46(c), the United States will supplement promptly its filing with the Court and its mailing to the State. In addition, no later than ten (10) days prior to the Fairness Hearing on Individual Relief, the Parties shall file their responses, if any, to all objections timely sent to the United States.
I. Approval of Final Relief Awards List 49. At or following the Fairness Hearing on Individual Relief, the Court shall determine which, if any, objections to the United States’ Relief Awards List filed pursuant to Paragraph 48 are well founded. The Court shall then approve the Relief Awards List as submitted or, if the Court finds that any objection(s) with respect to a Claimant are well founded, shall amend the list to adjust the amount and nature of the relief to be awarded to the Claimant consistent with such finding, while maintaining, to the extent possible, the proportionate shares of back pay awarded to all other Claimants. The list approved by the Court will be the Final Relief Awards List. 50. The Court shall find that any objection by a Claimant, including an objection to the amount of back pay to be awarded to a Claimant or to the United States’ determination that a Claimant is not eligible to compete for a priority promotion (as reflected on the Relief Awards List filed pursuant to Paragraph 40), is well founded only if the Court finds that the United States’ determination was not reasonable, equitable or consistent with the provisions of this Decree or federal law. 51. The Court shall find that any objection by the State to the United States’ determination that a Claimant is eligible for a priority promotion is well founded only if the State proves by a preponderance of the evidence that at the time of the Claimant’s presumptive
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appointment date, the Claimant was not qualified for the position of police sergeant using the lawful, objective minimal qualifications in use by the State at that time.
J. Notice of Relief Award and Acceptance and Release 52. No later than thirty (30) days after the Court determines, at or following the Fairness Hearing on Individual Relief, each Claimant’s eligibility for relief under this Decree, the United States shall mail by certified U.S. mail, return receipt requested, a Notice of Award of Individual Relief as set forth in Attachment J to all Claimants determined by the Court to be entitled to individual relief, as stated in the Final Relief Awards List, at their current or last known address. In accordance with Attachment J, notice shall include:
a. A statement of the amount of the back pay award for that Claimant as stated on the Final Relief Awards List;
b. An explanation of the time limit for acceptance of the back pay offer; c. If the Claimant has been determined by the Court to be eligible for
consideration for an offer of a priority promotion, a statement of the Claimant’s eligibility for such consideration, and the retroactive seniority date the Claimant will receive if the Claimant ultimately passes the police sergeant exam developed under the terms of this Decree and is certified by the State and appointed by the local jurisdiction; d. An Acceptance of Back Pay and Release of Claims or Acceptance of Back Pay and/or Consideration for Priority Promotion and Release of Claims form as described in the following Paragraph of this Decree; and e. Any withholding forms that are necessary for the State to comply with its withholding obligations under law and Paragraph 31 of this Decree. 53. No later than sixty (60) days after the Court approves the Final Relief Awards List, Claimants otherwise entitled to relief as indicated in the Final Relief Awards List must mail to the United States an executed copy of the Acceptance of Back Pay and Release of Claims or Acceptance of Back Pay and/or Consideration for Priority Promotion and Release of Claims
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form set forth in Attachment J of this Decree as a condition for the receipt of a back pay award and/or priority promotion, along with any withholding forms if the Claimant is eligible for back pay. The Acceptance of Back Pay and Release of Claims or Acceptance of Back Pay and/or Consideration for Priority Promotion and Release of Claims form and any withholding forms must be postmarked no later than sixty (60) days after the Court approves the Final Relief Awards List in order to be considered timely. In the event that the United States receives an Acceptance of Back Pay and Release of Claims or Acceptance of Back Pay and/or Consideration for Priority Promotion and Release of Claims form where the postmark does not indicate a date of mailing, the United States will deem the date of mailing to be five (5) days prior to the date the form was received by the Department of Justice. A Claimant’s failure to return an executed Acceptance of Back Pay and Release of Claims or Acceptance of Back Pay and/or Consideration for Priority Promotion and Release of Claims form within the time allowed shall constitute a rejection of the offer of relief and shall release the Parties from any further obligation under this Decree to make an award of relief to that Claimant.
54. No later than seventy-five (75) days after the Court approves the Final Relief Awards List, the United States shall forward to the State copies of all executed Acceptance of Back Pay and Release of Claims or Acceptance of Back Pay and/or Consideration for Priority Promotion and Release of Claims forms and withholding forms it received from Claimants listed in the Final Relief Awards List.
55. If any Claimant listed on the Final Relief Awards List rejects an offer of back pay, the United States may reallocate the amount of back pay allocated to that Claimant to those other Claimants who timely returned all forms in a manner designed to allocate the total amount of back pay available in the Settlement Fund while preserving the relative proportions of the
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Claimants’ shares of the Settlement Fund as stated on the Final Relief Awards List. No later than ninety (90) days after the Court approves the Final Relief Awards List, the United States shall either amend the Final Relief Awards List to reflect any such reallocation of back pay and to reflect any rejections of priority promotions and provide a copy of the Amended Final Relief Awards List to the State, or notify the State that no amendments are required.
56. No later than thirty (30) days after the United States provides to the State the Amended Final Relief Awards List (or notifies the State that no amendments were required), the State or its designee shall mail via certified U.S. mail (return receipt requested) a back pay award check to each Claimant eligible for back pay, as listed on the Amended Final Relief Awards List (or the Final Relief Awards List if no amendments were required), in the amount stated for the Claimant on the relevant list, less all appropriate taxes and other amounts required to be withheld by law in accordance with Paragraph 31.
57. No later than forty-five (45) days after the United States provides to the State the Amended Final Relief Awards List (or notifies the State that no amendments were required), the State shall provide to the United States proof of payment of each back pay award check mailed to a Claimant pursuant to the preceding Paragraph, along with a statement indicating the amounts withheld from each such check and the purpose of each withholding.
58. No later than ninety (90) days after the United States provides to the State the Amended Final Relief Awards List (or notifies the State that no amendments were required), the State shall provide to the United States a list of all checks that have been returned to the State as undeliverable, as well as a statement of the amount of funds remaining in Settlement Funds I and II. For all undelivered checks, if attempts to locate the Claimant prove unsuccessful, any amount remaining in Settlement Fund I or II after such attempts may be redistributed or allocated as
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directed by the United States, in its sole discretion, in a manner consistent with the purposes of this Decree.
59. No later than one hundred twenty (120) days after the United States provides to the State the Amended Final Relief Awards List (or notifies the State that no amendments were required), the State shall provide to the United States a list of all checks that appear to have been delivered (no returned check), but which have not been cashed. The State shall mail a letter to such Claimants with uncashed checks to notify such Claimants that the award may be redistributed or otherwise allocated if the check is not cashed within sixty (60) days from the date of this letter. The letter shall further state that no further warnings regarding such redistribution or allocation will be given. If upon the expiration of the sixty (60) days there remain uncashed checks, the State will provide to the United States a list of all such outstanding checks as well as a statement of the amount of funds remaining in Settlement Funds I and II. Any amount remaining in the Settlement Funds after such time may be redistributed or allocated as directed by the United States, in its sole discretion, in a manner consistent with the purposes of this Decree.
K. Priority Appointment Relief with Retroactive Seniority 60. The State shall certify Claimants eligible for priority promotion over all other eligible candidates until a minimum of, and no more than, 68 offers of priority promotions have been made to eligible Claimants who pass the new selection procedure for police sergeant as developed under this Decree. 61. The 68 priority promotions shall be made to 48 African-American candidates and 20 Hispanic candidates, allocated to local jurisdictions as set forth in Attachment K to this Decree. If the number of eligible Claimants who pass the new selection procedure exceeds the
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number of priority promotions allocated to a particular local jurisdiction, eligible Claimants will be selected for priority promotions in accordance with the new selection procedure as developed under this Decree. All priority promotions shall be made in accordance with the provisions of, and all Claimants seeking a priority promotion shall be subject to, N.J.A.C. 4A:4-4.1 through N.J.A.C. 4A:6-6.6; provided, however, that if a provision of the Decree conflicts with, or is otherwise inconsistent with, any provision of N.J.A.C. 4A:4-4.1 through N.J.A.C. 4A:6-6.6, the provisions of the Decree shall govern. All Claimants seeking a priority promotion will be subject to the requirements of N.J.S.A. 4A:4-4 to 6.6. No Claimant shall be eligible for promotion unless that Claimant has passed the police sergeant exam developed pursuant to this Decree. The State may include in any test cycle any or all of the local jurisdictions listed in Attachment K, regardless of whether any promotion list for any such local jurisdiction has expired or remains in effect.
62. In order for a Claimant to count as a priority promotion under this Decree, the Claimant must be eligible for a priority promotion as listed on the Final Relief Awards List (or the Amended Final Relief Awards List), must pass the police sergeant exam as developed under the provisions of this Decree and must be certified to a local jurisdiction by the State. The State is considered to have satisfied a priority promotion obligation under this Decree only when the Claimant begins his/her first day of paid employment as a police sergeant in a local jurisdiction. If a Claimant was offered and declined a priority promotion or is determined to be ineligible for a priority promotion as set forth in Paragraph 51, the priority promotion slot shall be offered to another eligible Claimant.
63. Nothing in this Decree shall preclude any Claimant from applying for promotion or being promoted into the position of police sergeant in a local jurisdiction under the State’s
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regular promotion process. However, promotion of a Claimant under the State’s regular promotion process shall not be counted toward fulfillment of the State’s priority promotion obligations under this Decree nor shall it affect a Claimant’s eligibility for back pay under this Decree. The State also may not refuse to select a Claimant under its regular promotion process on the basis that the Claimant is eligible for a priority promotion or back pay under this Decree.
64. The group of African-American or Hispanic Claimants eligible for priority promotions, as indicated on the Final Relief Awards List (or Amended Relief Awards List), shall be deemed exhausted only when each such Claimant:
a. Has been appointed as a police sergeant in a local jurisdiction as a priority promotion;
b. In writing, has rejected an offer of a priority promotion made by the State pursuant to this Decree;
c. Has accepted a priority promotion offer but, without good cause, failed to appear for his/her first day of employment as a police sergeant in a local jurisdiction;
d. Has failed the police sergeant exam developed pursuant to this Decree; or e. Has been agreed by the Parties or determined by the Court to be currently
unqualified for the position of police sergeant, using the lawful, objective appointment criteria (other than a residency or written exam requirement) in use by the State at that time. 65. The State or its designee shall notify a Claimant of an offer of a priority promotion by certified U.S. mail (return receipt requested) with a written offer for the police sergeant position, prominently indicating: a. That the offer is an offer of a priority promotion being made pursuant to this Decree; b. That, at the completion of the Claimant’s probationary or working test period, the Claimant will be entitled to retroactive seniority as of the
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Claimant’s presumptive appointment date as that term is defined in Paragraph 9 of this Decree;
c. The beginning salary the Claimant will receive if the offer is accepted, as well as the salary the Claimant will receive after completion of the probationary or working test period;
d. The telephone numbers at which the Claimant may contact the United States and the State with any questions regarding the offer of a priority promotion;
e. That the Claimant has at least forty-five (45) days from the date on which the written offer of appointment was sent to notify the State that the Claimant accepts the offer;
f. That the Claimant must provide written notice to both the State and local jurisdiction of the acceptance of an appointment. The written notice either must be received by both the State and the local jurisdiction no later than forty-five (45) days after the written offer was sent to the Claimant or, if the written notice is sent by mail, must be postmarked no later than fifty (50) days after the written notice was sent to the Claimant; and
g. That the designation as a priority promotion pursuant to this Decree will remain confidential and will not be disclosed by the State or a local jurisdiction, provided, however, that the State may provide to a local jurisdiction any information reasonably necessary for such local jurisdiction to effectuate a priority promotion made in accordance with the terms of this Decree.
On the date on which such an offer of priority promotion is sent to a Claimant, the State shall
send a copy of the offer to the United States.
66. Upon completion of the new testing process and following all steps identified in
Paragraphs 64 and 65 of this Decree, the State will issue a priority promotion list for each of the
local jurisdictions identified in Attachment K. The State shall certify Claimants on the priority
promotion lists over all other eligible candidates for each local jurisdiction identified in
Attachment K for the next police sergeant positions until:
a. The allocation of the priority promotions for such local jurisdiction as set forth in Attachment K has been satisfied; or
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b. The group of Claimants eligible for priority promotions for the police sergeant position, as indicated on the Final Relief Awards List (or the Amended Final Relief Awards List) is exhausted for such local jurisdiction pursuant to Paragraph 64 (i.e., all have either been appointed, rejected an offer of priority promotion or are not currently qualified as agreed by the Parties or determined by the Court).
67. At such time as a local jurisdiction has made all of the priority promotions allocated to that jurisdiction in Attachment K, or the group of eligible Claimants for that jurisdiction has been exhausted, the State and local jurisdictions may discontinue the use of the priority promotion list. For local jurisdictions identified in Attachment K with existing special reemployment lists, the State shall certify Claimants eligible for priority promotions on at least a one to one ratio with candidates on existing special reemployment lists for the next police sergeant positions. Certifications made from special reemployment lists pursuant to this Paragraph do not alter the State’s priority promotion obligations set forth in preceding subparagraphs (a) and (b) or elsewhere in this Decree.
68. At least sixty (60) days before any administration of the new police sergeant selection procedure developed under the Decree in a local jurisdiction containing any Claimants eligible to compete for a priority promotion under this Decree, the State shall notify the United States, in writing, indicating the name of each Claimant and for each such Claimant, the date of the exam administration and whether the Claimant has applied to take the written exam.
69. Within fourteen (14) days after the State determines that a Claimant eligible to compete for a priority promotion has failed any aspect of the new selection procedure for police sergeant developed under the Decree, the State shall notify the United States in writing and at the same time, provide to the United States a copy of all documents and information that the State considered in determining that the Claimant has failed.
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70. Within fourteen (14) days after the State has made an offer of a priority promotion, the State shall notify the United States of the identity of the Claimant to whom an offer has been made.
71. Within fourteen (14) days after the State receives from a Claimant a written rejection of an offer of a priority promotion made pursuant to this Decree, the State shall provide a copy of such written rejection to the United States.
72. Within fourteen (14) days after a Claimant fails to appear for his/her first day of paid employment, or the State determines that any Claimant is not currently qualified for the position of police sergeant using the lawful, objective appointment criteria in use by the State or local jurisdiction at that time, the State shall:
a. so notify the United States in writing; b. if applicable, provide a written statement of all reason(s) the State or local
jurisdiction believes the Claimant is not qualified currently; and c. if applicable, provide all information and documents (e.g., criminal history
records, exam scores) upon which the State or local jurisdiction based its determination. 73. If the United States notifies the State that the United States wishes to interview or depose any official, agent or employee of the State involved in evaluating the qualifications of a Claimant determined by the State to be not currently qualified, the State shall make such person available for interview or deposition (at the United States’ option) within fourteen (14) days. 74. If the United States does not agree with the State’s determination that a Claimant is not currently qualified for the position of police sergeant, the United States shall so notify the State within sixty (60) days after the date on which it receives the State’s determination.
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75. If the Parties cannot resolve a dispute regarding whether a Claimant is currently qualified, either party may request that the Court resolve the dispute no later than thirty (30) days after the United States notifies the State of its disagreement pursuant to the preceding Paragraph. This Court shall retain jurisdiction of all disputes regarding any Claimant’s current qualifications for purposes of the State’s priority promotion obligations under this Decree. In any proceedings regarding such a dispute, the State shall bear the burden of proving by a preponderance of the evidence that the Claimant is not currently qualified based upon the minimum qualifications applied by the State to all candidates for promotion to police sergeant.
76. On the date on which a Claimant who was appointed as a priority promotion under this Decree completes the probationary or working test period, the State shall credit the Claimant with retroactive seniority that corresponds to the Claimant’s presumptive appointment date as a police sergeant and as provided by this Decree. VII. NEW EXAM DEVELOPMENT AND COMPLIANCE MONITORING
77. In consultation with the United States, the State will develop and administer a new lawful selection procedure to select qualified candidates for promotion to the position of police sergeant in local jurisdictions.
78. The exam described in the “Police Sergeant Test Validation Report 2011” (the “2011 Validation Report”) will serve as the basis for the new police sergeant exam (the “police sergeant exam”).
79. For the first administration of the police sergeant exam immediately following execution of the Decree by the Parties:
a. The State will provide to the United States and the United States’ expert(s) access to State personnel and to the State’s expert(s) for the purposes of evaluating the police sergeant exam. 29

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b. The State will provide to the United States all evidence of job relatedness or validity of the police sergeant exam, including job analysis and test plans, as well as data underlying such analysis and test plans. The State will also provide the proposed announcement for the police sergeant exam, any proposed police sergeant orientation manual or study guide that contains information about the police sergeant exam, a proposed process for item development and review, and a proposal for the scoring and weighting of all components of the exam, the standardization of exam scores and the manner of use in the creation of eligible lists.
c. Recognizing that the job-relatedness and validity of an exam can be evaluated fully only after an exam has been administered, the United States shall review the materials provided by the State and make recommendations aimed at reducing impact while maintaining validity or at increasing the likelihood of validity no later than sixty (60) days after the United States receives all of the materials described in Paragraph 79(b). If the United States does not submit any recommendations within sixty (60) days, the State may announce and subsequently administer the police sergeant exam without changes. The Parties may agree to an extension of this timeline.
d. If the United States makes recommendations within the timeline set in Paragraph 79(c) or within a timeline otherwise agreed to by the Parties, the State will implement the recommendations, except the State may object to any recommendation that it believes is unnecessary.
e. If the State and the United States are unable to resolve a dispute regarding the United States’ recommendations, either party may move the Court for resolution. The Parties acknowledge, however, that a determination of the validity of the testing process under Title VII must include an evaluation of additional factors such as scoring, weighting and particular use of the test. The United States reserve its right to raise objections regarding the manner of use pursuant to subsection (j) of this Paragraph.
f. Upon implementation of modifications to the police sergeant exam or its manner of use pursuant to Paragraphs 79(c) and (d) or upon order of the Court pursuant to Paragraph 79(e), the State may administer the police sergeant exam.
g. After administration of the police sergeant exam, the State will provide to the United States and the United States’ expert(s) the gender, race, national origin, answer keys, exam forms, exam scores and access to itemlevel data (e.g., test question responses for each candidate). The State will also provide to the United States a proposal that the State believes
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complies with Title VII regarding the scoring of all non-multiple choice components.
h. The United States shall review the post-administration exam data and the States’ proposed scoring of non-multiple choice components and make recommendations no later than thirty (30) days after the United States receives the materials described in Paragraph 79(g). If the United States does not submit any recommendations within thirty (30) days, the State may score and use the police sergeant exam in accordance with its proposal. The Parties may agree to an extension of this timeline.
i. If the United States recommends changes to the police sergeant exam as to the scoring of non-multiple choice components of the exam within the timeline set in Paragraph 79(h) or within a timeline otherwise agreed to by the Parties, the State will implement the changes, except the State may object to any change that it believes is unnecessary.
j. If the State and the United States are unable to resolve a dispute regarding a change to the police sergeant exam as to its scoring of the non-multiple choice components, either party may move the Court for resolution. Upon a motion by either party, the Court shall hold a hearing regarding the lawfulness of the proposed manner of use of the police sergeant exam. The Parties agree that the burdens of proof set forth in 42 U.S.C. § 2000e2(k) shall apply to this hearing. If the Court determines, following a hearing, that the proposed manner of use does not comply with Title VII, the State shall not use the police sergeant exam in that manner. Following submissions by the Parties, the Court will then decide upon an alternative use of the exam, if any, that complies with Title VII.
k. Upon completion of all scoring of the exam, as to both multiple choice and non-multiple choice components, the State will provide to the United States and the United States’ expert(s) gender, race, national origin, exam scores on the multiple choice and non-multiple choice components of the exam, combined scores, seniority scores and final scores and ranks, and a proposal as to the passing score for the exam.
l. The United States shall review the State’s proposed passing score and make recommendations no later than 20 days after the United States receives the proposal as to the passing score for the exam.
m. If the United States recommends changes to the passing score within the time set in Paragraph 79(l), the State will implement the changes, except the State may object to any change that it believes is unnecessary.
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n. If the State and the United States are unable to resolve a dispute regarding the United States’ recommendation as to the passing score, either party may move the Court for resolution.
o. Upon implementation of the recommendations pursuant to Paragraph 79(l) or upon order of the Court pursuant to Paragraph 79(n), the State may implement the passing score and use the police sergeant exam results in the creation of eligible lists.
80. Prior to announcing the second administration of the police sergeant exam
following execution of the Decree:
a. The State will provide to the United States and the United States’ expert(s) access to State personnel and to the State’s expert(s) for the purposes of evaluating the police sergeant exam.
b. The State will provide the United States the proposed announcement for the police sergeant exam, and a proposal for the scoring and weighting of all components of the exam, the standardization of exam scores, the manner of use in the creation of eligible lists, including any proposed modifications to the exam, along with all evidence of job relatedness and validity to support such modifications.
c. No later than sixty (60) days after the State provides the notice, any proposed modifications and supporting materials described in Paragraph 80(b), the United States shall review any materials provided by the State, as well as the data and information from the prior exam administration, and make recommendations to the State aimed at alternative employment practices (i.e., lessening the disparate impact caused by the exam, if any, while meeting the State’s legitimate business needs). If the United States does not submit any recommendations within sixty (60) days, the State may announce and subsequently administer the police sergeant exam without changes. The Parties may agree to an extension of this timeline.
d. If the United States makes recommendations within the timeline set in Paragraph 80(c) or within a timeline otherwise agreed to by the Parties, the State will implement the recommendations, except the State may object to any recommendation that it believes is unnecessary.
e. If the State and the United States are unable to resolve a dispute regarding the United States’ recommendations, either party may move the Court for resolution.
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f. Upon implementation of modifications to the police sergeant exam or its manner of use pursuant to Paragraph 80(c) and (d) or upon order of the Court pursuant to Paragraph 80(e), the State may administer the police sergeant exam.
g. After administration of the police sergeant exam, the State will provide to the United States and the United States’ expert(s) the gender, race, national origin, answer keys, exam forms, exam scores, and access to item-level data (e.g., test question responses). The State will also provide to the United States a proposal that the State believes complies with Title VII regarding the scoring of the non-multiple choice components of the exam.
h. The United States shall review the post-administration exam data and the States’ proposed scoring, weighting, and manner of non-multiple choice component of the exam and make recommendations as to the scoring of the non-multiple choice component of the exam no later than thirty (30) days after the United States receives the materials described in Paragraph 80(g). If the United States does not submit any recommendations within thirty (30) days, the State may score and use the police sergeant exam in accordance with its proposal. The Parties may agree to an extension of this timeline.
i. If the United States makes recommendations as to the scoring of the nonmultiple choice component of the exam, the State will implement the changes, except the State may object to any change that it believes is unnecessary.
j. If the State and the United States are unable to resolve a dispute regarding a change to the scoring of the non-multiple choice component of the exam, either party may move the Court for resolution. The Parties agree that the burdens of proof set forth in 42 U.S.C. § 2000e-2(k) shall apply to this hearing. If the Court determines, following a hearing, that the proposed manner of use does not comply with Title VII, the State shall not use the police sergeant exam in that manner. Following submissions by the Parties, the Court will then decide upon an alternative use of the exam, if any, that complies with Title VII.
k. Upon completion of all scoring of the exam, the State will provide to the United States and the United States’ expert(s) gender, race, national origin, exam scores on the multiple choice and non-multiple choice components of the exam, combined scores, seniority scores and final scores and ranks, and a proposal as to the passing score for the exam.
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l. The United States shall review the State’s proposed passing score and make recommendations no later than twenty (20) days after the United States receives the proposal as to the passing score for the exam.
m. If the United States recommends changes to the passing score within the time set in Paragraph 80(l), the State will implement the changes, except the State may object to any change that it believes is unnecessary.
n. If the State and the United States are unable to resolve a dispute regarding the United States’ recommendation as to the passing score, either party may move the Court for resolution.
o. Upon implementation of the recommendations pursuant to Paragraph 80(m) or upon order of the Court pursuant to Paragraph 80(n), the State may implement the passing score and use the police sergeant exam results to issue promotion lists.
81. Due to the importance of test security, along with concerns about the proprietary nature of test development materials, all correspondence and communications between and among the Parties and their test developers, consultants and/or experts in connection with the performance of the obligations set forth in Paragraphs 77 through 80 shall be held confidential and shall not be disclosed to any third party in the absence of a court order compelling such disclosure.
82. Following the first two administrations of the police sergeant exam, for subsequent administrations, the State will have no obligation to provide to the United States evidence of job relatedness or validity of the police sergeant exam, including job analysis, test plans, and test content, or data underlying such analysis, test plans and content. The State will also have no obligation to provide the United States and the United States’ expert(s) access to State personnel and to the State’s expert for the purposes of exploring possible changes to the police sergeant exam. For the third and fourth subsequent administrations of the police sergeant exam after entry of the consent decree, however, the State will provide to the United States the
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gender, race, national origin, exam scores, seniority scores and rank of each candidate and the eligible lists resulting from the administration of the police sergeant exam within fourteen days of creation of the eligible lists, and any certification data within fourteen days of creation of the certification.
83. The State may in its discretion continue to provide data and information requested by the United States for additional administrations of the exam.
84. After the first two administrations of the police sergeant exam, the State may administer the police sergeant exam without awaiting agreement from the United States. VIII. RECORD KEEPING REQUIREMENTS
85. While this Decree remains in effect, the State shall maintain all of the following records (including those created or maintained in electronic form):
a. all applications for police sergeant positions; b. all documents relating to the screening, evaluation or selection of
candidates for the position of police sergeant; c. all documents relating to written or verbal complaints made by any person
or organization regarding discrimination on the basis of race and/or national origin in the appointment of police sergeants; d. all documents relating to the evaluation or selection of Claimants to be offered priority appointment and/or to the employment of Claimants appointed as priority appointments under this Decree; and e. all other documents relating to the State’s compliance with the requirements of this Decree, including but not limited to documents relating to the payment or award of individual relief to any Claimant under this Decree. 86. Except as otherwise provided in this Decree, the State will make available to the
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United States, no later than thirty (30) days after the United States so requests in writing, any records maintained in accordance with the preceding Paragraph of this Decree and any additional documents relating to any dispute arising under the Decree.
87. When possible, all records furnished to the United States shall be provided in a computer-readable format to be agreed upon by the Parties prior to production.
88. Within thirty (30) days after the United States so requests in writing, the State shall make available for interview or deposition (at the United States’ option) any agent, employee or official of the State who the United States reasonably believes has knowledge of information necessary to verify the State’s compliance with the terms of this Decree or to resolve a dispute arising under this Decree. IX. DURATION OF CONSENT DECREE
89. Unless otherwise ordered by this Court, and absent the pendency of any motion related to this Decree, this Decree shall expire without further order of the Court on the latest of the following dates:
a. Three years from the date of the entry of the Decree; b. Upon fulfillment of the Parties’ obligations regarding the individual relief
to be awarded under this Decree; or c. Upon the State’s administration of the second police sergeant exam
contemplated by Section VII or Paragraph 80(n) of this Decree and after the time for the United States to make recommendations regarding the content or manner of use of the police sergeant exam in accordance with Paragraph 80(m) or after the time for a hearing contemplated by Paragraph 80(n) has expired. 90. Either party may move the Court to extend the duration of the Decree only upon a showing of good cause.
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X. COSTS AND FEES 91. Each party shall bear its own costs and expenses incurred as a result of obligations
imposed by this Decree, including the cost of all notification and publication procedures. 92. Each party shall bear its own costs, expenses, and attorneys’fees incurred in this
litigation. XI. MISCELLANEOUS
93. The Court shall retain jurisdiction over this Decree for the purpose of resolving any disputes or entering any orders that may be appropriate to implement the Decree, including joining any parties whose joinder is necessary to accord complete relief under this Decree.
94. By mutual agreement, the Parties may change the terms of this Decree, provided that such mutual agreement is memorialized in writing, signed by the Parties and approved by the Court.
95. This Decree constitutes the entire agreement of the Parties, and supersedes all prior agreements, representations, negotiations and undertakings not set forth or incorporated herein.
96. Except as otherwise provided in this Decree, all written information and documents required to be delivered under this Decree to the United States by the State shall be sent via overnight delivery to the following address:
New Jersey Settlement Team Employment Litigation Section U.S. Department of Justice Civil Rights Division PHB, Room 4710 601 D Street NW Washington, DC 20004
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the State shall be sent to: Department of Law and Public Safety, Division of Law Richard J. Hughes Justice Complex Post Office Box 112 Trenton, New Jersey 08625-0112
It is so ORDERED, this 22nd day of November, 2011 /s/ Katharine S. Hayden UNITED STATES DISTRICT JUDGE
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THOMAS E. PEREZ Assistant Attorney General LORETTA KING Deputy Assistant Attorney General
By:_s/ Delora Kennebrew_________ DELORA KENNEBREW Chief
s/ Esther G. Lander______________ ESTHER G. LANDER Deputy Chief
s/ Varda Hussain________________ s/ Hilary J. Funk________________ VARDA HUSSAIN HILARY J. FUNK TREVOR S. BLAKE II Trial Attorneys United States Department of Justice Civil Rights Division Employment Litigation Section 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530 Telephone: (202) 305-4267
Counsel for Plaintiff United States

KEVIN JESPERSEN Assistant Attorney General LISA D. RUCH Deputy Attorney General By: s/ Lisa D. Ruch_______________ LISA D. RUCH Department of Law and Public Safety, Division of Law Richard J. Hughes Justice Complex Post Office Box 112 Trenton, New Jersey 08625-0112 Telephone: (609) 292-8866
Counsel for Defendants State of New Jersey and New Jersey Civil Service Commission

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 Case 2:10-cv-00091-KSH-PS Document 71 Filed 06/12/12 Page 1 of 57 PageID: 3718

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

UNITED STATES OF AMERICA
Plaintiff, vs. STATE OF NEW JERSEY and NEW JERSEY CIVIL SERVICE COMMISSION,
Defendants.

Civ. No. 10-91 (KSH) (MAS) OPINION

Katharine S. Hayden, U.S.D.J.
I. Introduction..........................................................................................................1 II. Facts and Procedural History ...............................................................................2
A. The Complaint ...............................................................................................2 B. The Consent Decree .......................................................................................4 C. Objections ......................................................................................................10 D. Intervention ....................................................................................................10 E. Fairness Hearing ............................................................................................11 III. Motion for Final Entry of Consent Decree ..........................................................12 A. Standard of Review........................................................................................12 B. Underlying Merits of the Claim .....................................................................13
1. Disparate Impact Framework...................................................................14 2. Disparate Impact Evidence in Present Case.............................................16
a. Evidence of Statistical Disparate Impact ...........................................16 b. Job-Relatedness and Consistency with Business Necessity ..............22 c. Ricci v. DeStefano ..............................................................................27
i. The Ricci Facts and Holding........................................................27 ii. Applicability to this Case.............................................................29 3. Facial Neutrality.......................................................................................30 4. Conclusion as to the Merits......................................................................33 C. Proposed Relief ..............................................................................................33 1. Pre-Approval............................................................................................34 2. Back Pay ..................................................................................................36 3. Priority Promotions with Retroactive Seniority.......................................38 a. Unfairness to Non-Claimants.............................................................39
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b. Insufficient Priority Promotions ........................................................43 c. Administrative Aspects ......................................................................44 d. Qualifications .....................................................................................45 4. New Examination.....................................................................................45 D. Miscellaneous Objections ..............................................................................47 1. Notice .......................................................................................................47 2. Discovery .................................................................................................48 E. Findings on Settlement Terms .......................................................................50 IV. Motion for Intervention........................................................................................50 A. Motion to Intervene Framework ....................................................................50 B. Timeliness ......................................................................................................51 1. The Stage of the Proceeding ....................................................................52 2. Prejudice That Delay May Cause Parties.................................................52 3. The Reason for the Delay ........................................................................53 4. Totality of the Circumstances ..................................................................53 C. Conclusion as to Intervention ........................................................................55 V. Conclusion ...........................................................................................................55
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I. Introduction In 2010, the United States filed a complaint against the State of New Jersey (“the State”)
and the New Jersey Civil Service Commission (“NJCSC”), alleging that the NJCSC‟s selection process for the position of police sergeant has a disparate impact on African American and Hispanic applicants in violation of Title VII of the Civil Rights Act of 1964. Specifically, the complaint alleged that African American and Hispanic applicants pass the promotional examination at lower rates than their white counterparts, and that those African American and Hispanic applicants who do pass achieve lower average scores than their white counterparts, thus adversely affecting their rankings on promotional lists. The parties conducted extensive discovery, and in the summer of 2011, they reached a settlement. The Court provisionally entered a consent decree on September 15, 2011 and then entered amended consent decrees on November 2, 2011 and November 22, 2011. The present consent decree requires ten New Jersey jurisdictions to obtain pre-approval from the United States before certifying candidates for promotion to sergeant; provides back pay for eligible claimants; provides a system of priority promotions with retroactive seniority for a more limited group of eligible claimants; and sets the stage for the NJCSC to create a new examination and promotion process for police sergeants.
The parties created a system for the submission of written objections. The Court received 468 written objections to the consent decree. Some came from officers who had already passed the examination and were frustrated by delays in the promotion process and the prospect of being bypassed for promotion due to the consent decree‟s imposition of priority promotions. Other objections came from African American and Hispanic officers who did not do well enough on the examination to be promoted but who did not reside in a jurisdiction afforded the full scope of
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relief under the consent decree. At the initial fairness hearing held on March 12, 2012, objectors appeared in person and addressed the Court.
The Court has considered the written submissions of the United States, the written objections to the consent decree, and the presentations and statements at the initial fairness hearing. For the reasons that follow, the Court approves the second amended consent decree and enters it as an order.
II. Facts and Procedural History On May 22, 2008, the United States Department of Justice informed the State by letter
“that it would be investigating whether the State had engaged in a pattern or practice of discrimination against African-Americans and Hispanics based on its use of a written exam for promotion to police sergeant.” (Br. Supp. Joint Mot. for Provisional Entry of Consent Decree and Scheduling of Fairness Hearing 2 n.3 (“Br. Supp. Prov. Entry”).) This pre-suit investigation, which included “document review, data analysis, and consultation with experts,” continued for almost two years and culminated in the present action. (Id.)
A. The Complaint On January 7, 2010, the United States filed a complaint against the State and the NJCSC. [D.E. 1.] According to the complaint, the NJCSC is responsible for maintaining “selection procedures for promotion to the rank of Police Sergeant.” (Compl. ¶ 8.) “These procedures are utilized by hundreds of New Jersey cities and counties that participate in the New Jersey Civil Service system.” (Id.) Since 2000, part of this system has included a multiple-choice examination that the NJCSC develops, administers, and scores. (Id. ¶ 9.) The NJCSC also determines the cutoff score for passing the examination, “establish[es] Police Sergeant eligibility lists and certif[ies] Police Sergeant candidates to the local jurisdictions participating in the New
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Jersey Civil Service system.” (Id.) Local jurisdictions participating in the New Jersey Civil Service system may not deviate from the NJCSC‟s selection procedures. (Id. ¶ 10.)
Candidates for police sergeant who meet other qualifications and achieve a passing score on the written examination are placed on eligibility lists for their jurisdiction; the lists rank candidates by a “final score” that is 80% attributable to the examination score and 20% attributable to seniority credits. (Id. ¶ 11.) When deciding which candidates to promote, the local jurisdictions must use “certification lists” created by the NJCSC at the local jurisdiction‟s request. (Id. ¶ 12.) Under N.J.S.A. 11A:4-8, for the first police sergeant vacancy, the NJCSC certifies the three highest-ranking candidates on the eligibility list, and for each additional vacancy, it certifies the next ranked candidate on the list. (Id.) Under what is known as the Rule of Three, the local jurisdiction takes the list of certified candidates and chooses which one(s) to promote; this system “recognizes employment discretion and seeks to ensure that such discretion is not exercised in a way inconsistent with „merit‟ considerations.” In re Foglio, 207 N.J. 38, 45–46 (2011) (quoting Terry v. Mercer Cnty. Bd. of Chosen Freeholders, 86 N.J. 141, 149–50 (1981)).
From 2000 to 2008, 89% of white candidates passed the written examination, compared to 73% of African American candidates and 77% of Hispanic candidates. (Compl. ¶¶ 14, 16.) In addition to the aggregate pass rate for that period, African American and Hispanic candidates “passed at a rate statistically significantly lower than did the white candidates” in each annual administration of the examination. (Id. ¶¶ 15, 17.) Moreover, even among passing candidates, African Americans “were under-represented in the higher score ranges and over-represented in the lower score ranges for each year between 2000 and 2008,” and “Hispanics were underrepresented in the higher score ranges and over-represented in the lower score ranges for each
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year between 2001 and 2008.” (Id. ¶¶ 19, 21.) The end result is that in jurisdictions with white and either African American or Hispanic applicants, 35% of white candidates appearing on eligibility lists were certified, compared with 20% of African American candidates and 22% of Hispanic candidates. (Id. ¶ 23.) In the end, “while approximately 18% of the white candidates on the eligibility lists in such jurisdictions were promoted, approximately 9% of African American candidates and 13% of Hispanic candidates were promoted.” (Id.)
Based on this data, the United States alleged in its complaint that the pass/fail written examination resulted in a statistical disparate impact on African American and Hispanic candidates and that the NJCSC has not demonstrated that its written examination and certification ranking process “is job related for the Police Sergeant position and consistent with business necessity.” (Id. ¶¶ 24–26.) Accordingly, the United States alleged that the use of the written examination and the ranking of candidates based in part on those examinations constitutes unlawful discrimination due to race in violation of section 707 of Title VII, 42 U.S.C. § 2000e-6. (Id. ¶ 27.)
B. The Consent Decree After the United States filed the complaint, “the State produced voluminous information relating to the issues of disparate impact, job-relatedness, and validity during discovery.” (Br. Supp. Prov. Entry 2.) The parties exchanged expert reports on disparate impact, job-relatedness, and validity, and they conducted depositions of expert and fact witnesses on these matters. (Id.) During discovery, the parties took part in in-person settlement conferences before Magistrate Judge Michael A. Shipp on March 3, 2011, April 4, 2011, and April 26, 2011. On May 19, 2011, the parties informed Magistrate Judge Shipp in a telephone conference that they had reached a settlement in principle. [D.E. 35.]
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On August 1, 2011, the parties filed a joint motion for provisional entry of a consent decree and scheduling of an initial fairness hearing, which the Court granted. The original consent decree was later superseded by a first amended consent decree entered on November 2, 2011, and a second amended consent decree entered on November 22, 2011. [D.E. 48, 49.] The second amended consent decree (hereinafter “the consent decree” or “the decree”) set March 12, 2012 as the date for an initial fairness hearing. (Second Am. Consent Decree ¶ 20.) The decree sets forth the factual and legal underpinning of the case and prescribes remedial action to be taken. As its factual recital in the decree indicates, for the purposes of the present proceedings, the State does not dispute certain predicate facts: of particular note, the State agreed not to dispute that “[f]rom 2000 to 2009, African-American and Hispanic candidates passed the police sergeant written exam at a lower rate than white candidates, and the disparity in pass rates is statistically significant”; “[f]rom 2000 to 2008, African-American and Hispanic candidates ranked lower on eligible lists than white candidates, and the disparity in ranks is statistically significant”; the disparities are sufficient to establish a prima facie case of disparate impact under Title VII; at least 48 additional African Americans and at least 20 additional Hispanics “would have been promoted to the position of police sergeant in local jurisdictions throughout New Jersey from 2000 to 2009 absent the disparate impact resulting from the State‟s pass/fail use of the police sergeant written exam and from the State‟s determination and use of final scores to certify candidates in descending rank order”; and that the State‟s promotional system for police sergeants is neither job-related nor “consistent with business necessity under professionally acceptable standards for validity.” (Id. at 2–3.) The consent decree indicates that it is designed to achieve three purposes: (1) ensuring that the State no longer violates Title VII in promotions to police sergeant; (2) creating a new selection procedure; and (3) providing back pay and
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priority promotions with retroactive seniority to those who were denied a promotion to police sergeant due to the challenged employment practices. (Id. ¶ 12.)
As remedies, the decree first provides general injunctive relief precluding the State from using “any selection device for the position of police sergeant that has a disparate impact upon African-American or Hispanic candidates on the basis of race or national origin and is not job related for that position and consistent with business necessity, or otherwise does not meet the requirements of Title VII.” (Id. ¶ 13.) Further, the State is precluded from retaliating against any person who participates or cooperates in the “initiation, investigation, litigation or administration” of the decree. (Id. ¶ 14.) The State may no longer administer the current written examination for promotion to police sergeant. (Id. ¶ 15.)
The decree precludes the State from using “current eligible lists as part of its selection procedure for police sergeant in” ten municipalities that the United States‟ expert identified as jurisdictions in which continued use of the existing eligible list “may result in disparate impact on African American and/or Hispanic candidates.” (Id. ¶ 16.) These jurisdictions are Atlantic City, Camden, Irvington, Jersey City, Passaic, Paterson, Pleasantville, Salem City, Teaneck, and Trenton. (Id. ¶ 16 & Ex. D.) Until the existing eligibility lists expire, the State must provide certification requests to the United States for prior approval before certifying candidates in those jurisdictions; the United States “shall determine through its expert whether the requested certification(s) would create an additional African American or Hispanic shortfall in that jurisdiction.” (Id. ¶ 16.) In determining whether a shortfall would ensue, the United States “will treat each request for certification as an actual appointment.” (Id.) The State is permitted to continue using existing eligible lists in all other local jurisdictions. (Id. ¶ 17.)
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In addition to the systemic relief, the decree provides individual relief for eligible claimants. The overall adequacy of individual relief was an issue presented at the initial fairness hearing, and the decree further provides that person-by-person entitlement to relief will be the subject of a subsequent “individual relief fairness hearing.” (Id. ¶ 43.) Only eligible “claimants” under the decree in certain jurisdictions are entitled to individual relief. The decree defines the term “claimant” as:
any African-American or Hispanic person from those jurisdictions identified in Attachment A who has not been promoted to police sergeant and who:
a. between 2000 and 2009, failed a police sergeant written exam where appointments from the eligible list resulted in a shortfall of his or her race; or b. between 2000 and 2008, passed a police sergeant written exam where appointments from the eligible list resulted in a shortfall of his or her race, but ranked below the lowestranking candidate appointed from that eligible list. (Id. ¶ 3.) The jurisdictions identified in Attachment A are: Asbury Park, Atlantic City, Bayonne, Bridgeton, Burlington, Camden, Deptford, Dover, East Orange, Elizabeth, Ewing, Garfield, Hackensack, Hamilton, Hillside, Hoboken, Irvington, Jersey City, Kearny, Lawrence, Magnolia, Morristown, New Brunswick, Newark, North Brunswick, Orange, Passaic, Paterson, Pennsauken, Perth Amboy, Plainfield, Pleasantville, Roselle, Scotch Plains, Somerdale, Teaneck, Trenton, Vineland, Wallington, Weehawken, West New York, Willingboro, and Wood-Ridge. (Id. Ex. A.) The first portion of individual relief comes in the form of back pay. The State is required to deposit $710,000.00 into one settlement fund for African-American claimants and $290,000.00 into another settlement fund for Hispanic claimants. (Id. ¶ 29.) Much of the
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process of determining eligible claimants will take place after the decree is entered, notice is dispensed, and a future individual relief fairness hearing is held to approve a Final Relief Awards List. (See id. ¶¶ 31–36, 40–59.)
Additionally, certain claimants are entitled to priority promotion with retroactive seniority. This provision of the decree provides that the State must “certify Claimants eligible for priority promotion over all other eligible candidates until a minimum of, and no more than, 68 offers of priority promotions have been made to eligible Claimants who pass the new selection procedure for police sergeant as developed under this Decree.” (Id. ¶ 60.) The 68 priority promotions are allocated to 48 African American candidates and 20 Hispanic candidates. (Id. ¶ 61.) They are available only in specific jurisdictions and in amounts specified in the decree: Atlantic City (five African American, two Hispanic); Bridgeton (two African American, one Hispanic); Camden (three African American, one Hispanic); East Orange (two African American, one Hispanic); Elizabeth (three African American, three Hispanic); Hoboken (three Hispanic); Jersey City (six African American, three Hispanic); New Brunswick (one African American, two Hispanic); Newark (14 African American, one Hispanic); Passaic (two African American, one Hispanic); Paterson (five African American, one Hispanic); Teaneck (two African American, one Hispanic); and Trenton (three African American). (Id. ¶ 61 & Ex. K.)
The decree expressly provides that no claimant is eligible for priority promotion unless he or she passes the new police sergeant examination developed under the terms of the decree and is certified to a local jurisdiction; “[i]f the number of eligible Claimants who pass the new selection procedure exceeds the number of priority promotions allocated to a particular local jurisdiction, eligible Claimants will be selected for priority promotions in accordance with the new selection procedure.” (Id. ¶¶ 61–62.) No claimant is obligated to participate in the priority
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promotion process, but regular promotions will not count toward satisfying priority promotion allotments. (Id. ¶ 63.) Priority promotions will be considered exhausted only after each claimant eligible for priority promotion: has been appointed as a police sergeant; has rejected an offer of priority promotion; has accepted an offer but fails to appear for the first day of employment as a police sergeant; has failed the new police sergeant examination; or has been determined to be unqualified through lawful, objective appointment criteria other than a written examination or residency requirement. (Id. ¶ 64.) After a priority promotion list is created, the State shall certify candidates on those lists until all promotions for a local jurisdiction have been distributed or the group of available claimants is exhausted. (Id. ¶ 66.)
The decree also requires the State to develop a new selection procedure for future administrations, based on the “Police Sergeant Test Validation Report 2011.” (Id. ¶¶ 77–78.) The decree provides detailed instructions for the process under which the United States and the State will collaborate to develop the new selection procedure. (See id. ¶¶ 79–84.)
For as long as the decree is in effect, the State bears specific responsibilities for recordkeeping with regard to the examination. (Id. ¶ 85.) The State is further required to furnish the records to the United States upon request, and to make available to the United States “any agent, employee or official of the State who the United States reasonably believes has knowledge of information necessary to verify the State‟s compliance with the terms of this Decree or to resolve a dispute arising under this Decree.” (Id. ¶¶ 86–88.)
The decree remains in effect until the latest of three dates: three years from the entry of the decree; the parties‟ fulfillment of the individual relief obligations; or the State‟s administration of the second police sergeant examination in accordance with paragraph 80 of the
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decree. (Id. ¶ 89.) The Court retains jurisdiction over the decree in order to resolve disputes or enter orders appropriate to the decree‟s implementation. (Id. ¶ 93.)
C. Objections All affected persons were provided an opportunity to present objections prior to the final entry of the decree at an initial fairness hearing on March 12, 2012. (Id. ¶¶ 19–20.) The consent decree required objectors to mail written objections to a designated post office box; the deadline for objections was 45 days prior to the initial fairness hearing, or January 27, 2012. (Id. ¶ 24.) The decree further provided objectors with the right to appear at the initial fairness hearing and voice objections either in person or through counsel. (Id.) The United States received 468 written objections. (See generally Br. Supp. Final Entry of Consent Decree & Response to Objections (“Br. Supp. Final Entry”), App‟x E, Exhs. 1–467; Letter from United States dated Mar. 23, 2012 (D.E. 68).) The content of these objections will be discussed later in this opinion.
D. Intervention On February 9, 2012, 27 police officers employed by the City of Paterson, New Jersey (collectively “movants”) filed a proposed answer, a motion to intervene, a motion for discovery, and a motion for preliminary injunction. [D.E. 56–59.] All 27 movants also submitted, through counsel, timely objections to the consent decree. (See Br. Supp. Final Entry, App‟x E, Exhs. 18, 29, 34, 74, 75, 95, 96, 106, 111, 112, 131, 138, 194, 199, 234, 262, 263, 281, 321, 332, 342, 352, 358, 365, 410, 412, 413.) While the movants‟ motions were still pending, on March 8, 2012, they filed a motion for postponement of the initial fairness hearing. [D.E. 65.] That same day, the Court: denied the motion for postponement of the initial fairness hearing; denied the motion for discovery and motion for preliminary injunction as premature because the Court had not yet
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granted movants‟ motion to intervene; and informed the parties that the Court would hear argument on the motion to intervene at the initial fairness hearing. [D.E. 66.]
E. Fairness Hearing On March 12, 2012, the Court held the initial fairness hearing. The United States made a presentation on the consent decree and presented arguments in opposition to the written objections. In addition, the United States made its two expert witnesses, Dr. Bernard Siskin and Dr. David Jones, available for the Court and for objectors. Most of the fairness hearing was dedicated to hearing from objectors. The Court first heard from those objectors represented by counsel. Jesse D. Stovin appeared for the Office of Joseph S. Murphy, Esq., which represents 59 objectors from the Paterson Police Department. (See Br. Supp. Final Entry, App‟x D.) He also presented arguments regarding the movants‟ motion to intervene. Michael F. Myers appeared for Jacobs & Barbone, P.A., which represents Gena Dorn, Stacy Herrerias, Joseph Jasiecki, Richard Johnson, and Omar Martin of the Atlantic City Police Department. (See id.) Raymond R. Jones, Esq. appeared for the Law Office of Raymond R. Jones, which represents Quincy Hendryx, James Walters, and Brian Davis of the Hamilton Police Division. (See id.) Brian F. Curley, Esq. appeared on behalf of Desmond Clark of the Irvington Police Department. (See id.) Seven objectors ― Saverio Binetti, Arbend Drishti, Ranaldo Gonzalez, Abdelmonim Hamdeh, Eric Jackson, George F. Moore, and Antonio Pistone ― spoke on their own behalf. At the end of the initial fairness hearing, the Court reserved judgment on both the United States‟ motion for final entry of the consent decree and the movants‟ motion for intervention.
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III. Motion for Final Entry of Consent Decree A. Standard of Review
The consent decree provides that the Court‟s task is to “determine whether the terms of the Decree are fair, reasonable, equitable and otherwise consistent with federal law.” (Second Am. Consent Decree ¶ 19.) Neither the Supreme Court nor the Third Circuit has set forth an express standard of review for how district courts should measure the propriety of consent decrees arising in the context of a government-initiated lawsuit in which the settlement has a direct impact on non-litigant third parties. Therefore, in discerning a standard, guidance is taken from other circuits and from other district courts within this circuit.
Courts have long recognized that when Congress enacted Title VII of the Civil Rights Act of 1964, “[c]ooperation and voluntary compliance were selected as the preferred means for achieving” the goal of eliminating discrimination in the workplace. See Alexander v. GardnerDenver Co., 415 U.S. 36, 44 (1974); Kennedy v. St. Joseph’s Ministries, Inc., 657 F.3d 189, 194 (4th Cir. 2011); Shikles v. Sprint/United Mgmt. Co., 426 F.3d 1304, 1313 (10th Cir. 2005). Recognizing this policy, and the general benefits of having cases resolved through settlement rather than protracted litigation, it has been said that a district court‟s only task is to ensure “that the proposed settlement is not unconstitutional, unlawful, . . . contrary to public policy, or unreasonable.” United States v. City of Miami, 614 F.2d 1322, 1333 (5th Cir. 1980), aff’d in part, rev’d in part on other grounds, 664 F.2d 435 (Former 5th Cir. 1981) (en banc). Stated differently, “the trial court must find the settlement fair, adequate, and reasonable.” United States v. City of Alexandria, 614 F.2d 1358, 1361 & n.6 (5th Cir. 1980). Accord United States v. New Jersey, Nos. 88-5087, 88-4080, 87-2331, 1995 WL 1943013, at *11 (D.N.J. Mar. 14, 1995) (Bassler, J.) (utilizing standard from City of Alexandria and City of Miami).
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Accordingly, when reviewing the propriety of consent decrees such as this one, courts
determine whether its terms are fair, adequate, reasonable, and consistent with the law. Though
deferential, courts must not “shirk their duty to consider proposed decrees carefully.” City of
Alexandria, 614 F.2d at 1362 n.10 (citing City of Miami, 614 F.2d at 1333). It is especially
important for courts to scrutinize the fairness and reasonableness of the decree closely when, as
here, the decree has an impact on non-parties. Cf. Franks v. Bowman Transp. Co., Inc., 424 U.S.
747, 779 n.41 (1976) (district courts retain equitable powers to deny relief when it would involve
“unusual adverse impact arising from facts and circumstances that would not be generally found
in Title VII cases”); Romasanta v. United Air Lines, Inc., 717 F.2d 1140, 1156 (7th Cir. 1983)
(holding that district court need not grant relief having “unusual adverse impact” on innocent incumbent employees), cert. denied, 466 U.S. 944 (1984).1
B. Underlying Merits of the Claim
In assessing the reasonableness of the decree, the paramount question is whether the
United States has presented a strong claim on the merits. Such a showing is significant for two
reasons. First, it ensures that the State‟s decision to settle the matter was borne of a sincere
concern that it might be held liable for discrimination if the action were decided on the merits
after full litigation. Second, it addresses the concerns expressed in 219 objections that the United
1 The United States has suggested that the fairness of a consent decree should be evaluated through reference to the factors set forth in Girsh v. Jepson, 521 F.2d 153, 157 (3d Cir. 1975), which in this circuit provides the standard for final approval of a class action settlement. (See, e.g., Br. Supp. Prov. Entry 17.) However, although the Girsh factors provide some initial guidance, they do not supply the ultimate analytical framework for this type of case. First, some of the factors, such as “the risks of maintaining the class action through trial” and “the reaction of the class to the settlement,” are simply inapplicable, as there is no “class” in this case of which to speak. Second, and more importantly, while the Girsh factors focus on the fairness of a settlement to the class, they contain no provision for fairness to third parties; here, by contrast, most of the objections to the decree have come from officers who are not intended beneficiaries of the settlement.
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States has failed to establish disparate impact discrimination under Title VII. For the reasons that follow, the Court finds that the United States has adduced strong evidence that the State‟s promotional process for police sergeants runs afoul of Title VII.
1. Disparate Impact Framework In 1971, the Supreme Court recognized that “[t]he objective of Congress in the enactment of Title VII . . . was to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees,” and held that the Civil Rights Act “proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation.” Griggs v. Duke Power Co., 401 U.S. 424, 429–31 (1971). Accordingly, “[i]f an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited.” Id. at 431. Although disparate impact had its genesis in case law, Congress later validated the Supreme Court‟s approach by codifying disparate impact discrimination in the Civil Rights Act of 1991. See Ricci v. DeStefano, 129 S. Ct. 2658, 2673 (2009) (citing 42 U.S.C. § 2000e2(k)(1)(A)(i)); see also NAACP v. N. Hudson Reg’l Fire & Rescue, 665 F.3d 464, 477 n.9 (3d Cir. 2011) (noting that the Civil Rights Act of 1991 reversed a Supreme Court case that had weakened the standard for finding employment practices not a violation of Title VII), cert. denied, No. 11-1247, 2012 WL 1358789 (June 11, 2012). Title VII is meant to ensure that workplaces are free from discrimination and that employment decisions are made based on qualifications rather than extraneous factors such as race and color. N. Hudson Reg’l Fire & Rescue, 665 F.3d at 476 (citing Ricci, 129 S. Ct. at 2674; Griggs, 401 U.S. at 434). To that end, “Title VII makes it illegal for an employer to „limit, segregate, or classify his employees or applicants for employment in any way which would
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deprive or tend to deprive any individual of employment opportunities . . . because of such individual‟s race, color, religion, sex, or national origin.” Id. (quoting 42 U.S.C. § 2000e2(a)(2)). To establish a claim for disparate impact, a complaining party must “demonstrate[] that a respondent uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin and the respondent [must] fail[] to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity.” Id. (quoting 42 U.S.C. § 2000e-2(k)(1)(A)(1)). Thus, the employer‟s actual motive is irrelevant. Id. (quoting Lewis v. City of Chicago, 130 S. Ct. 2191, 2200 (2010)).
The test for disparate impact discrimination proceeds in three steps. First, a plaintiff must establish a prima facie case through a demonstration “that application of a facially neutral standard has caused a „significantly discriminatory hiring pattern.‟” Id. (quoting Newark Branch, NAACP v. City of Bayonne, 134 F.3d 113, 121 (3d Cir. 1998) (quoting Newark Branch, NAACP v. Town of Harrison, 940 F.2d 792, 798 (3d Cir. 1991))). This means that the plaintiff must show not only a significant disparity, but also that the disparity “is the result of one or more of the employment practices that [he is] attacking.” Id. at 476–77 (quoting Wards Cove Packing Co., Inc. v. Atonio, 490 U.S. 642, 657 (1989)). Statistical disparities may show causation “when those disparities are substantial and the evidence is reliable.” Id. at 477 (citing Bayonne, 134 F.3d at 121).
If the prima facie case is established, the second step is that the employer may defend the claim through a showing that the practice is “job related for the position in question and consistent with business necessity.” Id. (quoting 42 U.S.C. § 2000e-2(k)(1)(A)(i)). To establish job-relatedness and business necessity, the employer bears the burdens of production and persuasion to show that the discriminatory criteria “define the minimum qualifications necessary
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to perform the job”; the reasons must be “actual reasons why the challenged employment practice is important to the position” and not “the mere assertion of . . . conceivable bases.” Id. (citations omitted). Even a “common sense” job requirement will fail if it is not supported by “some level of empirical proof that challenged hiring criteria accurately predicted job performance.” El v. Se. Pa. Transp. Auth., 479 F.3d 232, 240 (3d Cir. 2007). For example, in a claim of disparate impact by sex, the Supreme Court rejected a prison‟s argument that height and weight requirements for the position of prison guard were job related and consistent with business necessity. See generally Dothard v. Rawlinson, 433 U.S. 321 (1977). Because the only business reason for those job requirements was to ensure strength, the Court rejected the business necessity argument, finding the prison could have simply tested for actual strength rather than presuming height and weight to be a proxy for it. El, 479 F.3d at 239–40 (citing Dothard, 433 U.S. at 331–32). Accordingly, the “employers [must] show that a discriminatory hiring policy accurately ― but not perfectly ― ascertains an applicant‟s ability to perform successfully the job in question.” Id. at 242. If the employer cannot satisfy this requirement, “the plaintiff wins simply by showing the stated elements.” N. Hudson Reg’l Fire & Rescue, 665 F.3d at 477 (quoting Lewis, 130 S. Ct. at 2198).
If the defendant demonstrates job relatedness and business necessity, the third step is that a plaintiff can still prevail “by showing that alternative practices would have less discriminatory effects while ensuring that candidates are duly qualified.” Id.
2. Disparate Impact Evidence in the Present Case a. Evidence of Statistical Disparate Impact
As discussed above, the first step in a disparate impact analysis is that a plaintiff must establish a prima facie case through a demonstration “that application of a facially neutral
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standard has caused a „significantly discriminatory hiring pattern.‟” Id. at 476 (citations omitted). Statistical disparities are appropriate to demonstrate such causation. Id. at 477. For evidence of statistical disparities in the selection process for police sergeants, the United States presented the report of Dr. Bernard R. Siskin (“Siskin”), who also appeared at the initial fairness hearing.
Siskin is the Director of BLDS, LLC, based in Philadelphia, Pennsylvania. (Second Am. Decl. of Bernard Siskin ¶ 1, appended to Br. Supp. Final Entry, App‟x E, Ex. 468 (“Siskin Decl.”).) He received a Ph.D. in Statistics with a minor in Econometrics from the Wharton School of the University of Pennsylvania and has authored four books on statistical methodology, as well as numerous book chapters, monographs, and papers. (Id.) He specializes in using statistics to analyze employment practices. (Id.)
According to Siskin‟s report, from 2000 to 2009, at least 182 counties and municipalities participated in New Jersey‟s civil service system. (Id. ¶ 2.) “Candidates for police sergeant who meet the minimum qualifications set by New Jersey, and who achieve a passing score on a written exam administered by New Jersey, are placed in descending rank order on eligible lists based on final scores. Final scores are a combination of written exam scores, which are weighted 80 percent, and seniority credits, which are weighed 20 percent.” (Id.) The written examination is administered statewide each year to all police officers seeking promotion to police sergeant, provided that their jurisdiction is participating in the promotional process for that year. (Id. ¶ 4.) Each jurisdiction also has the same pass score, which the NJCSC sets. (Id.)
Siskin‟s conclusions regarding disparate impact all emanate from an analysis in which he determined the number of standard deviations separating white applicants‟ performance on the examination from African American and Hispanic applicants‟ performance. At the initial
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fairness hearing, Siskin explained the meaning of these numbers and the method by which he
arrived at them. (See Transcript of Initial Fairness Hearing 61–75 (“Tr.”).) The question his
analysis is designed to answer is whether the difference in performance between white applicants
and African American and Hispanic applicants is predicated on pure chance. (See id. 66:24–
68:6.) To that end, he takes the raw difference in performance and converts it into units of
standard deviation; the units of standard deviation can then be used to ascertain placement on a
bell curve, which in turn makes it possible to determine the probability of an outcome occurring
by chance. (See id. 68:7–18.) If a disparity is equal to 1.96 standard deviations, then it means
that there is only a 5% chance of that outcome occurring randomly, and “[w]e conclude that it
didn‟t occur by chance.” (See id. 68:19–69:9.)
Standard deviation analyses like Siskin‟s are frequently used in disparate impact cases.
For example, in discussing how to apply specific statistics, the Third Circuit has explained that
[a] standard deviation is a unit of measurement that allows statisticians to measure all types of disparities in common terms. In context, the greater number of standard deviations from the mean, the greater the likelihood that the result is not due to chance. To offer some sense of the relationship between these two measures, two standard deviations corresponds roughly to a probability level of 0.05 [or 5 percent]; three standard deviations correspond to a probability level of 0.0027 [or 0.27 percent].
As a legal matter, the Supreme Court has stated that “[a]s a general rule for . . . large samples, if the difference between the expected value and the observed number is greater than two or three standard deviations, then the hypothesis that the [result] was random and would be suspect to a social scientist. . . .”
Stagi v. Nat’l R.R. Passenger Corp., 391 F. App‟x 133, 137–38 (3d Cir. 2010) (footnote and citations omitted).
In his report, Siskin concluded that from 2000 to 2009, there was a statistically significant
disparity between African American passage rate and white passage rate, and this disparity was 18

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equal to 17.33 units of standard deviation. (Siskin Decl. ¶ 5.) When looking year to year, the
standard deviations ranged from a low of 4.09 in 2003 to a high of 9.62 in 2002. (Id.)
Moreover, African Americans who passed the exam from 2000 to 2008 were ranked on
eligibility lists statistically significantly lower than whites, equal to 7.77 units of standard
deviation. (Id. ¶ 7.)
From 2000 to 2009, there was also a statistically significant disparity between Hispanic
passage rate and white passage rate; this disparity was equal to 12.88 units of standard deviation.
(Id. ¶ 6.) When looking year to year, the standard deviations ranged from a low of 3.03 in 2003
to a high of 9.24 in 2002. (Id.) Moreover, Hispanics who passed the exam from 2000 to 2008
were ranked on eligible lists statistically significantly lower than whites, equal to 4.66 units of
standard deviation. (Id. ¶ 8.)
As discussed above, a standard deviation of 1.96 indicates a 5% probability of the cited
event occurring randomly, and such a deviation is regarded as statistically significant in disparate
impact cases. Here, even the lowest disparity far exceeds 1.96 standard deviations. As Siskin
explained at the initial fairness hearing:
[V]alues of seven almost never occur by chance. . . . A probability of five percent being greater than two, greater than three, occurring three in one thousand times. A probability as great as eight, occurring one in 100 billion. When you get above eight, computers can‟t calculate how small that probability is. When we get a probability of 17 and 12, it‟s almost nothing, absolutely, okay. There is a probability, but it is so small that we can‟t even calculate how small it is. The probability of that occurring by chance essentially is zero. Which means that the conclusion of the statisticians in this case is absolutely clear, this difference of what we observed in the pass rate between blacks and whites, Hispanics and whites, is not occurring by chance. This is a result of this test.
(Tr. 69:10–23.)
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Siskin has made an ample showing that a statistically significant disparity exists between the passage rates and placement positions of white candidates as opposed to African American and Hispanic candidates. No objector has contested the existence of this disparity. Objections have been largely predicated on the idea that other factors, such as cultural distinctions or amount of time dedicated to preparing for the examination, account for the different passage rates. See infra.
Many objectors presented arguments with regard to the 80 percent rule in their written objections. (See, e.g., Objection, appended to Br. Supp. Final Entry, App‟x E, Exh. 1, ¶ 7 (“I object to the Consent Decree because the statistics underlying the opinion [do] not show disparate impact per 29 C.F.R. § 1607.4(D). . . .”).) The “80 percent rule” is a component of the EEOC‟s Uniform Guidelines on Employee Selection Procedures designed “to assess whether a plaintiff has established a prima facie disparate impact case.” Stagi, 391 F. App‟x at 138. It provides that a selection rate for one group “which is less than four-fifths . . . of the rate for the group with the highest rate will generally be regarded by the Federal enforcement agencies as evidence of adverse impact, while a greater than four-fifths rate will generally not be regarded by Federal enforcement agencies as evidence of adverse impact.” 29 C.F.R. § 1607.4(D). In the present case, the difference in passage rates between white candidates and African American and Hispanic candidates is not so great that it runs afoul the 80 percent rule. But as the Third Circuit has noted, the 80 percent rule “has come under substantial criticism, and has not been particularly persuasive, at least as a prerequisite for making out a prima facie disparate impact case.” Stagi, 391 F. App‟x at 138. Rather, it provides nothing “more than a rule of thumb for the courts.” Id. (quoting Watson v. Forth Worth Bank & Trust, 487 U.S. 977, 995 n.3 (1988)). In light of these critiques, and the Third Circuit‟s previous reliance on standard deviation
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analysis in lieu of following the 80 percent rule, the Court finds Siskin‟s detailed analysis to be more persuasive than simple reliance on a regulation that even the Supreme Court describes as nothing more than a “rule of thumb” for courts. See Watson, 487 U.S. at 995 n.3.
Siskin estimates that absent the disparate impact, at least one or more African American and/or Hispanic would have been promoted to Police Sergeant in 43 jurisdictions across the State, for an overall total of 75 African Americans and 30 Hispanics. (Siskin Decl. ¶ 10.) These 43 jurisdictions comprise the basis for determining whether a former test-taker is a claimant eligible for back pay. (See Second Am. Consent Decree ¶ 3.) If limiting that number to only jurisdictions in which at least three African Americans and/or Hispanics were excluded due to disparate impact, the result is a total shortfall of 48 African Americans and 20 Hispanics across 13 jurisdictions. (Siskin Decl. ¶ 10.) In the consent decree, these 13 jurisdictions are the ones in which claimants may be eligible for priority promotion with retroactive seniority. (See Second Am. Consent Decree ¶ 61.) By using the average annual appointment rate from 2000 to 2009, as well as the current eligibility lists, Siskin estimated that the use of the existing eligible lists would result in an increase in the shortfall of African Americans or Hispanics in ten municipalities. (Siskin Decl. ¶¶ 12–13.) These municipalities are the ones for which the consent decree would require the United States to pre-approve any certifications from current eligibility lists. (Second Am. Consent Decree ¶ 16.)
Siskin also makes estimates of back pay based on “salary information reported by State agencies and publicly available through www.app.com.” (Id. ¶¶ 15–16.) Operating under the assumption that losses began accruing at the time an applicant failed the exam, and based on the
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total shortfall statewide, he estimated the overall back pay owed to be over $1,000,000.2 (Id. ¶¶ 17–20.) He recommends splitting any back pay award 71% to African American claimants and 29% to Hispanic claimants, based on their relative makeup of the overall shortfall. (Id. ¶¶ 22–24.) The payments would be based upon the median appointment date for a claimant‟s eligibility list and would not exceed the pay that each claimant would have received if promoted to police sergeant on his or her presumptive appointment date. (Id.¶¶ 23, 26.)
b. Job-Relatedness and Consistency with Business Necessity The second step in the disparate impact analysis is that the employer may defend the claim through a showing that the practice is “job related for the position in question and consistent with business necessity.” N. Hudson Reg’l Fire & Rescue, 665 F.3d at 476–77 (quoting 42 U.S.C. § 2000e-2(k)(1)(A)(i)). For this portion of the test, the United States relies on the expert report and testimony of Dr. David P. Jones (“Jones”). (See generally Decl. of David P. Jones, Ph.D., appended to Br. Supp. Prov. Entry, Ex. 3 (“Jones Decl.”).) Jones is President and CEO of Growth Ventures, Inc., a human capital advisory firm. (Id. ¶ 1.) He holds a Ph.D. in Industrial/Organizational Psychology from Bowling Green University, and he has been involved in developing promotional examinations for the position of police sergeant. (Id.) He has previously served as an expert witness in cases regarding employment selection and promotion. (Id.) Drawing on professional principles and standards, Jones‟s report explains that a promotional procedure‟s job relatedness and consistency with business necessity “depends on the manner in which the procedure is used to make promotional decisions,” and that to demonstrate
2 At the initial fairness hearing, counsel for the United States stated that total back pay owed could be as much as $7,000,000. (Tr. 184:8–9.)
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validity, an employer must show that “the procedure is valid for making the kinds of employment decisions the employer wishes to make.” (Id. ¶¶ 3–4.) He notes that the State has argued only that the written exam is supported by evidence of content validity. (Id. ¶ 5.)
To establish that the use of a written examination is content valid, the State would need to satisfy four elements. (Id.) First, the State must show that “[a] suitable job analysis of police sergeant position has been conducted, providing information regarding the job‟s important tasks, the tasks‟ relative importance, and the knowledge, skills, and abilities required to perform the tasks.” (Id. ¶ 5(a).) Second, the State must demonstrate that it exercised “[r]easonable competence . . . in constructing the exam, including the involvement of individuals qualified to undertake and participate in creating the exam.” (Id. ¶ 5(b).) Third, the examination‟s content must be “both (i) related to the content of the job, a requirement focusing in the specific knowledge, skills, and abilities addressed, and their connection with information produced by the job analysis; and (ii) representative of the content of the job, a requirement that the exam not leave unaddressed any major parts of the job‟s knowledge, skill, and ability requirements.” (Id. ¶ 5(c).) Last, the examination must be scored in a manner that “usefully selects from among candidates who can better perform the job, including a showing of sound justification for pass versus fail cut-off scores, and rank-ordered use of candidate scores.” (Id. ¶ 5(d).) Jones‟s description of the requirements for content validity is consistent with the EEOC‟s Uniform Guidelines on Employee Selection Procedures, to which courts have previously deferred when considering arguments of content validity. See Vulcan Pioneers, Inc. v. N.J. Dep’t of Civil Serv., 832 F.2d 811, 814–15 (3d Cir. 1987); 28 C.F.R. §§ 50.14(14)(C), (15)(C).
Jones first states that the New Jersey‟s police sergeant examination is based on an analysis that does not comport with professional requirements. (Id. ¶ 6.) Specifically, the State
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based its job analysis on a 1996 questionnaire that asked questions regarding the job‟s most important tasks and most important knowledge, skill, and ability requirements; the State distributed the questionnaire to 578 police sergeants from 147 police departments, with each asked to make 750 ratings judgments. (Id. ¶ 6(a).) When reviewing the conclusions of the questionnaire results, the State did not review the results to determine whether the responding officers were actually representative of the overall population of sergeants. (Id. ¶ 6(b).) Ultimately, only 57% of rural police departments returned a questionnaire, compared to 84% of urban police departments. (Id.) The State did not examine the extent of agreement in the job analysis data, thus making it unclear whether different sergeants might have identified substantially different tasks and knowledge, skill, and ability requirements as important to the job. (Id.) Moreover, after 59 tasks and 85 knowledge, skill, and ability requirements were parsed from the questionnaire results, 11 police sergeants were asked to make 5,000 ratings judgments in less than eight hours to determine the extent to which knowledge, skill, and ability requirements were necessary to perform each task effectively. (Id. ¶ 6(c).)
In addition, Jones concludes that the police sergeant examination was not designed in a manner consistent with professional standards for content validity. (Id. ¶ 7.) He points out that the State‟s decision to utilize a multiple-choice, written examination curtailed the type of information that could be tested, thus rendering many important knowledge, skill, and ability requirements “not testable.” (Id. ¶ 7(a)–(b).) Additionally, the State never created test plans to indicate which tasks and knowledge, skill, and ability requirements were to be tested and how many questions would be dedicated to each; rather, “the State identified only four general work components to be measured, and the relative weight to be given each work component.” (Id. ¶ 7(c).)
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On the third element of content validity, Jones finds that the examination “fails to meet standards of representativeness because it does not reflect the range of job requirements identified during the course of the job analysis process.” (Id. ¶ 8.) Thus, even if the job analysis process were valid, the conversion of that analysis into the examination fell short of professional standards. The principal problem is that the State‟s 1996 Validation Report “does not document the [subject matter experts‟] input in the exam development process, instead describing a process where test questions were developed by consensus.” (Id. ¶ 8(b).) The result is the absence of a structured process and the inability to determine whether the exam measures what it was actually intended to measure. (Id. ¶ 8(b)–(c).) The State only once, in 2004, identified the task or knowledge, skill, and ability requirement that each question was designed to measure; in that instance, “[o]f the 90 questions related to the „supervise patrol‟ work component, a full 30 percent were related to the same task” out of 27 possible tasks, and 14 of the 27 tasks within that work component were not tested at all. (Id. ¶ 8(e).) Many important aspects of the job went entirely untested, especially those aspects requiring personal interaction and communication skills, as those types of issues are largely untestable in a multiple-choice examination. (Id. ¶ 8(f).)
Jones last notes that the use of “pass-fail qualification” and “rank-ordering of candidates in descending rank order based in large part on exam scores, do not usefully distinguish among candidates more and less qualified to perform the job.” (Id. ¶ 9.) The State provided the United States with “no analysis or documentation to establish that the pass versus fail cut-off scores established for its written exam bear any relationship to identifying more versus less qualified candidates,” despite the existence of professionally recognized techniques for doing so. (Id. ¶ 9(a).) The State instead “deferr[ed] to an approach that attempts to establish a cut-off score for
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each exam that meets the Uniform Guidelines‟ referenced „80 percent rule‟ for identifying disparate impact.” (Id. ¶¶ 9(a)–(b).) The Court considers this point critical because it demonstrates that the State determined the passage rate for the police sergeant examination based not on job-related criteria designed to determine whether an applicant is actually qualified for the position, but on the goal of avoiding a disparate impact lawsuit like this one. The State has “offered no evidence to support this rank-order use of the written exam, along with minor consideration of seniority.” (Id. ¶ 9(d).)
Jones concludes that alternative selection procedures exist that could serve the State‟s needs while avoiding the risk of disparate impact. (Id. ¶ 10.) Specifically, multiple-choice exams are “among the most likely to introduce group-based disparate impact, as compared to other assessment formats” such as “oral board reviews, assessment center approaches, job simulation, etc.” (Id. ¶ 10(a).) Such approaches can be valid and also result in less disparate impact, and they are already being used in many jurisdictions. (Id. ¶ 10(b)–(c).)
The Court finds Jones‟s report and testimony persuasive. He outlines not only the standards for content validity, but also the manner in which the State failed to comply with those standards when designing the police sergeant examination. Although the State took steps to determine important job functions through the use of the questionnaire, it neglected to conduct many of the essential follow-up procedures necessary to ensure a fair test. Also notable is that the State apparently never took steps to ensure the validity of the test by having current sergeants take it to check their scores against their actual performance, or by going back to assess whether sergeants promoted under the test actually had job performances that tracked their test results. Moreover, as discussed above, the threshold for passing the examination apparently bore no relation to the minimal standards for serving as a police sergeant and was instead predicated on
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ensuring that enough minority candidates passed to avoid a violation of the 80 percent rule. Thus, the Court finds that the United States has produced ample evidence to demonstrate that it has a strong case against the State for a claim of disparate impact.
c. Ricci v. DeStefano Many objectors note factual parallels between this case and Ricci v. DeStefano, 129 S. Ct. 2658 (2009), and argue that Ricci should serve as a barrier to the relief requested here. Indeed, this reference was ubiquitous enough that the United States dedicated a portion of its presentation at the initial fairness hearing to distinguishing Ricci from the present case (Tr. 49:18–58:13) and one of the objectors who appeared at the fairness hearing specifically asked how this case can be distinguished from Ricci (Id. 179:17–23).
i. The Ricci Facts and Holding In Ricci, 118 New Haven firefighters took promotion examinations, with results showing that white candidates outperformed minority candidates. 129 S. Ct. at 2664. This caused a “rancorous” public debate in which minority firefighters threatened litigation if the test results were used while white firefighters threatened litigation if they were not. Id. The City of New Haven (“the City”) decided to discard the test results, and white and Hispanic firefighters who would have likely been promoted filed suit, asserting disparate treatment. Id. The district court granted summary judgment for the City. Ricci v. DeStefano, 554 F. Supp. 2d 142 (D. Conn. 2006). The Second Circuit affirmed. Ricci v. DeStefano, 530 F.3d 87 (2d Cir. 2008). In a seven-to-six vote, the Second Circuit declined to rehear the case en banc. Ricci v. DeStefano, 530 F.3d 88 (2d Cir. 2008). The Supreme Court granted certiorari. Ricci v. DeStefano, 129 S. Ct. 893 (2009); Ricci v. DeStefano, 129 S. Ct. 894 (2009).
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In its opinion, the Supreme Court first noted that because the City made the decision to discard the results solely out of concern that they would lead to the promotion of too many white candidates and not enough minority candidates, it ran afoul of disparate treatment principles unless a defense applied. Ricci, 129 S. Ct. at 2673. The City argued that a “good-faith belief that its actions are necessary to comply with Title VII‟s disparate-impact provision should be enough to justify race-conscious conduct,” while the plaintiffs argued that it should never “be permissible for an employer to take race-based adverse employment actions in order to avoid disparate-impact liability.” Id. at 2674–75. Finding a balance between the two positions, the Court held that an employer may not make a race-based decision for the purpose of avoiding disparate impact liability “absent a strong basis in evidence that the test was deficient and that discarding the results is necessary to avoid violating the disparate-impact provision.” Id. at 2676. The Court added that although an employer may take affirmative efforts “to ensure that all groups have a fair opportunity to apply for promotions and to participate in the process by which promotions will be made,” that does not mean an employer may “invalidate . . . test results, thus upsetting an employee‟s legitimate expectation not to be judged on the basis of race” without a “strong basis in evidence of an impermissible disparate impact,” because such an action “amounts to the sort of racial preference that Congress has disclaimed . . . and is antithetical to the notion of a workplace where individuals are guaranteed equal opportunity regardless of race.” Id. at 2677.
Applying this test, the Court first noted that statistical evidence demonstrated that the examination had a disparate impact on African American test-takers. Id. at 2677–78. But the Court held that merely demonstrating the prima facie case “and nothing more . . . is far from a strong basis in evidence that the City would have been liable under Title VII had it certified the
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results” because the City could still avoid liability through the application of the second and third parts of the disparate impact analysis. Id. at 2678. The City had “turned a blind eye to evidence that supported the exams‟ validity” and the record was devoid of any indication that other, equally valid and less discriminatory tests were available. See id. at 2678–81.
ii. Applicability to this Case The United States argues that Ricci is not applicable because “the State did not take „race-based action‟” but rather “entered into a consent decree designed to provide remedial relief only to victims of discrimination,” and that even if Ricci were applicable, “the United States has submitted more than sufficient evidence to establish a „strong basis in evidence‟ to support the relief sought in the Decree.” (Br. Supp. Final Entry 9.) The Court is satisfied that there exists “a strong basis in evidence that the test was deficient,” and that the State‟s decision to enter the consent decree “is necessary to avoid violating the disparate-impact provision.” See Ricci, 129 S. Ct. at 2676. In Ricci, a public uproar arose and the City took a preemptive step of voiding test results in order to ward off a potential disparate impact suit. Here, by contrast, the State defended the test through a nearly two-year investigative period and then defended this case for a year and a half before agreeing to enter the consent decree. In other words, the agreement behind the consent decree was not prompted by the fear of litigation. Rather, it was a calculated decision based on an evaluation of significant evidence, including expert reports and depositions. Moreover, the evidence of disparate impact discrimination is stronger than it was in Ricci. Siskin‟s testimony addresses the first prong of disparate impact discrimination through evidence of statistical disparity, and Jones‟s testimony takes the extra step, absent in Ricci, of showing that the State is unable to demonstrate the job-relatedness and business necessity of the police sergeant selection
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procedure, particularly in light of more accurate alternatives in use in other jurisdictions.
Accordingly, Ricci poses no bar to the relief afforded under the consent decree.
3. Facial Neutrality
A recurring theme in the objections is that the examination had an objective scoring
system and all applicants had an equal opportunity, regardless of race, to prepare for and to take
the test. For example, a Jersey City officer submitted a written objection that stated:
All candidates for the examination had study materials available to them and accessible to them in a non-discriminatory and transparent [manner]. Thus, there is no evidence of the United States allegations of disparate impact discrimination. Each person taking this examination no matter what race you are has had the same opportunities to excel. I put countless hours of studying and sacrifice for the prior examination. The score I received put me [in] the position of 131 on the Sergeants list. There were numerous Hispanics and African Americans who scored better than me and if the need for Sergeants arose they would be promoted first. They would be promoted first not because of their race but because they put the effort in to excel. I would commend these men and women just like I would any other person who put in the hard work.
(Objection, appended to Br. Supp. Final Entry, App‟x E, Exh. 266.)
Similarly, an officer in the Paterson Police Department wrote, in an objection echoed by many
others, that he objects “to being bypassed by candidates who failed to invest the same time and
effort in preparing for the sergeant‟s exam as I did.” (Objection, appended to Br. Supp. Final
Entry, App‟x E, Exh. 269.) Several objectors who appeared at the initial fairness hearing also
emphasized the equality of opportunity in taking the examination. (See Tr. 117:11–119:19,
121:2–122:10, 134:22–135:6, 136:25–137:21.)
Taking the sergeant‟s examination is a significant event in the careers of many dedicated
police officers and those who take it make financial and personal sacrifices. But this point does 30

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not address the pertinent legal inquiry in disparate impact claims. As discussed above, to show
disparate impact, a complaining party must “demonstrate[] that a respondent uses a particular
employment practice that causes a disparate impact on the basis of race, color, religion, sex, or
national origin and the respondent [must] fail[] to demonstrate that the challenged practice is job
related for the position in question and consistent with business necessity.” N. Hudson Reg’l
Fire & Rescue, 665 F.3d at 476 (quoting 42 U.S.C. § 2000e-2(k)(1)(A)(1)). Therefore, under
disparate impact theory, “[i]f an employment practice which operates to exclude [minorities]
cannot be shown to be related to job performance, the practice is prohibited.” Id. (quoting
Griggs, 401 U.S. at 431).
The objectors raise a fair question by asking how the test could be discriminatory when
all applicants are provided an equal opportunity to take it. But sensible as that inquiry sounds, it
is not the inquiry that the law demands. As the Supreme Court stated when it first recognized a
claim based on disparate impact:
Congress has now provided that tests or criteria for employment or promotion may not provide equality of opportunity merely in the sense of the fabled offer of milk to the stork and the fox. On the contrary, Congress has now required that the posture and condition of the job-seeker be taken into account. It has ― to resort again to the fable ― provided that the vessel in which the milk is proffered be one that all seekers can use. The Act proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity. If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited.
Griggs, 401 U.S. at 431.
A statistical showing that a “facially neutral standard” results in a “significantly discriminatory
hiring pattern” will establish a prima facie case of disparate impact under Title VII, at which
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point any defense must focus upon job relatedness and business necessity. N. Hudson Reg’l Fire & Rescue, 665 F.3d at 476–77; see also Lewis, 129 S. Ct. at 2197–98 (“[A] plaintiff establishes a prima facie disparate-impact claim by showing that the employer „uses a particular employment practice that causes a disparate impact‟ on one of the prohibited bases.” (citing Ricci, 129 S. Ct. at 2672–73)). “By enacting § 2000e-2(k)(1)(A)(i), Congress allowed claims to be brought against an employer who uses a practice that causes disparate impact, whatever the employer‟s motives and whether or not he has employed the same practice in the past. If that effect was unintended, it is a problem for Congress, not one that federal courts can fix.” Lewis, 130 S. Ct. at 2200.
And so, once a statistical disparate impact is demonstrated, the question is not whether the applicant could have somehow overcome the predicate for that impact, but rather whether the test is job related and consistent with business necessity. As Jones‟s report explained, a great deal of evidence indicates that the current sergeant‟s exam is invalid. If the examination is invalid, then it does not matter whether more effort could have resulted in a better performance.
Siskin provided a helpful example. He explained that if the sergeant‟s examination consisted solely of a test of how many push-ups an applicant could perform in a given time period, it would be possible for an applicant to practice and perform excellently on the examination. (See Tr. 122:14–123:14.) If a disparate impact resulted, however, it would be no defense for the employer to say that each employee had an equal opportunity, because a push-up test has absolutely no correlation with the ability of an applicant to perform the job for which the test is given. (Id.) Although the sergeant‟s examination in this case is far more closely tethered to the job for the position of police sergeant, it, like the hypothetical push-up examination, falls short of providing an accurate means of determining whether an applicant is the best candidate
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for police sergeant. See El, 479 F.3d at 240. Therefore, the absence of discrimination on the face of the examination does not defeat the claim of disparate impact because the relevant inquiry at this stage is not whether those applicants who failed could have conceivably taken more effort in preparing for the exam, but rather whether the State is capable of demonstrating that the examination given was appropriate for its purpose. As Jones‟s report explains, it was not, and the objections on the grounds of facial neutrality must be overruled.
4. Conclusion as to the Merits The State continues to deny that it violated Title VII, and the limited record does not provide a basis for concluding whether Title VII has actually been violated. But the Court‟s task at this time is only to determine whether the terms of the decree are fair, adequate, reasonable, and otherwise consistent with federal law. The United States has presented reports from two expert witnesses, both of whom fielded questions at the initial fairness hearing. Siskin‟s report and testimony indicate that the United States is capable of demonstrating a statistical disparate impact, and Jones‟s report and testimony indicate that the State would be unable to rebut that disparate impact with a showing that the examination is job related and consistent with business necessity. The Court finds the experts‟ testimony sufficient to address concerns that the relief afforded in the decree is without an underlying evidentiary basis. It is therefore not unfair, unreasonable, or inconsistent with federal law to require the State to take steps to remedy the discrimination alleged in the complaint.
C. Proposed Relief The next question is whether the relief provided in the consent decree is fair, adequate, reasonable, and consistent with federal statutory and constitutional law. As noted above, the consent decree provides numerous forms of relief. The most substantial relief can be generally
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divided into the following categories: (1) the requirement that ten jurisdictions obtain preapproval before certifying candidates for promotion; (2) back pay to claimants; (3) priority promotions for eligible claimants in thirteen jurisdictions; and (4) the creation of a new examination for future administrations.
1. Pre-Approval Under the decree, the State is enjoined from using “current eligible lists as part of its selection procedure for police sergeant” in ten municipalities that Siskin identified as jurisdictions in which continued use of the existing eligible list “may result in disparate impact on African American and/or Hispanic candidates.” (Second Am. Consent Decree ¶ 16.) These ten jurisdictions are Atlantic City, Camden, Irvington, Jersey City, Passaic, Paterson, Pleasantville, Salem City, Teaneck, and Trenton. (Id. Ex. D.) Until the current lists expire, the State must provide certification requests to the United States for approval prior to certifying candidates. (Id. ¶ 16.) The United States shall then, through its expert, determine “whether the requested certification(s) would create an additional African American or Hispanic shortfall in that jurisdiction.” (Id.) Under Title VII, a court may enjoin a defendant from continuing to engage in an unlawful employment practice, and once a pattern or practice of discrimination is established, the exercise of that authority to put an end to continued discrimination is wholly proper. See 42 U.S.C. § 2000e-5(g)(1); Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 361 (1977). The potential scope of this authority can be seen in this very case. The original consent decree entered on September 15, 2011 would have barred the ten jurisdictions described above from continuing to use their current promotion lists at all. (Consent Decree ¶ 16.) By contrast, the second amended consent decree only prevents the State from certifying promotions to police
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sergeant if those promotions would worsen the shortfall of African Americans or Hispanics for those jurisdictions. It also bears noting that although the United States could have potentially sought to freeze all promotions to sergeant for any civil service jurisdiction in the state, it agreed to limit the pre-approval requirement to those jurisdictions in which Siskin determined an additional shortfall to be most probable. Such remedial action, which ensures that the examination results are not used to worsen already-existing disparities, is inherently reasonable.
A group of 13 police officers from the Atlantic City Police Department submitted objections through counsel, arguing that Atlantic City should be exempt from the consent decree. (See Br. Supp. Final Entry, App‟x E, Exhs. 79, 121, 125, 127, 177, 209, 224, 229, 296, 420, 423, 425, 465.) They point out that Atlantic City has 13 police sergeant vacancies, and that of the top 13 officers on the present list, three are African Americans (ranked sixth, ninth, and eleventh) and two are females; they further point out that females are “more of a minority in the law enforcement profession than African Americans and Hispanics combined.” (E.g., Objection at 2–3, appended to Br. Supp. Final Entry, App‟x E, Exh. 79.) In substance, the objectors argue that the present list “exceeds the very criteria that the Department of Justice is seeking to obtain by the passing of this Second Amended Consent Decree,” and that “[r]uling this present Atlantic City Police Department Sergeant list invalid would be a complete injustice not only to its candidates, but also to the citizens of Atlantic City.” (E.g., id. at 5.) The Atlantic City objectors further suggest that the possibility of pre-approval does not overcome this unfairness and unreasonableness “because the municipalities involved may choose not to undertake the exceptions allowed, but instead take the easy way out and simply let the current list expire. (E.g., id. at 6.)
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The Court is not persuaded that the decree is unreasonable as applied to Atlantic City. The present eligibility list has not been suspended or canceled. Rather, the decree provides that certifications may ensue from Atlantic City‟s current list only if those certifications would not result in an increase in Atlantic City‟s shortfall. If the objectors are correct and certifications from the current list will not further the shortfall, then the decree will not hinder its continued use. Even though African Americans and women did well on this examination and are now poised for promotion from the present list, the decree does not scuttle those promotions. It merely requires certainty that Atlantic City‟s shortfall not worsen as a result of any requested certifications.
2. Back Pay The consent decree provides collective back pay of $1,000,000 for claimants in jurisdictions with a shortfall of at least one expected African American or Hispanic. Some objectors complain that this is inadequate because officers in certain jurisdictions are excluded from back pay relief altogether. Some other objectors who are entitled to relief have complained that the amount the settlement designates for back pay is inadequate. For example, an African American officer in Kearny wrote that he has taken and passed the sergeant examination three times, and that despite New Jersey‟s “long and Storied History of Hiring and Promotional discrimination against its African-American and Hispanic Citizens,” he is not considered a claimant eligible for back pay or priority promotion. (Objection, appended to Br. Supp. Final Entry, App‟x E, Exh. 25; see also Objection, appended to Br. Supp. Final Entry, App‟x E, Exh. 86 (objection of another African American officer in Kearny stating same grounds).) Kearny‟s shortfall is such that although Hispanic candidates may be eligible for back pay, African
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Americans are not, and neither African Americans nor Hispanics are eligible for priority promotions there. (See Second Am. Consent Decree, Ex. A.)
At the initial fairness hearing, Brian F. Curley, Esq., appearing on behalf of an Irvington police officer, raised concerns over whether the $1,000,000 pool would be adequate. He noted that if the matter were fully litigated, the State would face the risk of having to pay much more back pay, and he argued that the settlement may have been preferential to the State at the expense of claimants, especially given the strong case he believed the United States presented and the number of claimants whose relief will come solely from back pay. (Tr. 103:16–104:15, 195:14–196:3.) Similarly, a retired Newark officer expressed concern that back pay alone would not constitute adequate compensation in light of the expenses that many claimants incurred in taking the tests and forgoing outside employment. (Id. 159:19–160:11, 162:17–163:8.) He also noted that the back pay award does not account for the missed opportunities in terms of additional promotions that could have been obtained after becoming a sergeant. (Id.) Partially echoing this sentiment, another African American officer from an unspecified jurisdiction discussed not only extra costs incurred and opportunities forgone, but also the absence of any relief in terms of additional retirement benefits for claimants who took the examination but were never promoted. (Id. 163:19–164:7.)
Lines are inevitably drawn when a settlement provides tiered relief. Although the record demonstrates this to be a strong case, that does not guarantee that the United States would have obtained the maximum relief available under Title VII had the case gone to trial. The Court‟s task here is to determine whether the settlement is fair, reasonable, adequate, and consistent with federal law. See City of Alexandria, 614 F.2d at 1361; City of Miami, 614 F.2d at 1333; United States v. New Jersey, 1995 WL 1943013, at *11. The United States and the State reached an
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agreement in which limited back pay is made available only to claimants in jurisdictions with a shortfall of at least one. Such a decision is neither unreasonable nor inequitable; to the contrary, it targets the back pay remedy exclusively to officers in jurisdictions where a statistically discernible disparate impact exists, ensuring relief in the most affected jurisdictions. While retirement benefits are not addressed, again, the settlement is a product of arms-length negotiation, and the omission of retirement benefits from monetary relief is practical under the circumstances. The settlement extends relief to many affected claimants, and when taken in conjunction with the other relief afforded in the decree, the Court is satisfied that the totality of the relief afforded is adequate.
Accordingly, the Court finds that the back pay award is appropriate. Further, the exclusion of retirement benefits from this relief represents practical line-drawing with regard to the scope of settlement benefits available.
3. Priority Promotions with Retroactive Seniority The most controversial aspect of the consent decree is the authorization of priority promotions in 13 jurisdictions, which has drawn reaction from some officers concerned that they will be put at an unfair disadvantage through no fault of their own, and has similarly drawn reaction from potential claimants in non-priority-promotion jurisdictions who seek something more than just back pay and an opportunity to take a new test in the future. Four general themes are expressed: (1) that priority promotions affect the rights of those who out-perform the claimants on future tests; (2) that the limitation of priority promotions to 13 jurisdictions is too restrictive; (3) that the list of claimants attached to the decree is, in some places, incorrect or outdated; and (4) that priority promotions will result in the promotion of unqualified persons.
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a. Unfairness to Non-Claimants A common objection is that the use of priority promotions is unfair to those test takers who work hard, pass the new and fair examination, and then are bypassed in favor of candidates they outperformed. A subset of these objections comes from already-promoted sergeants who are concerned that the use of retroactive seniority might harm their prospects of future promotion. An officer in the Paterson Police Department, in an objection filed by counsel and echoed by other objectors from Paterson, states that he: “will be wrongly bypassed by any priority promotion candidate who is promoted ahead of [him] on the next exam”; “object[s] to the fact that priority promotion candidates will be promoted ahead of others no matter how they score on the new exam”; and “object[s] to the fact that we are granting priority promotions to candidates scored lower than others on an otherwise fair and unbiased exam.” (Objection, appended to Br. Supp. Final Entry, App‟x E, Exh. 1, ¶¶ 3–5.) Similarly, a sergeant in the Jersey City Police Department provided a detailed description of all the monetary and time commitments that were necessary for him to take the examination. (Objection, appended to Br. Supp. Final Entry, App‟x E, Exh. 36.) He believes that the examination was nondiscriminatory and that the retroactive promotions therefore constitute discrimination against him. (Id.) An officer in the Elizabeth Police Department notes that the consent decree provides six overall priority promotions for his jurisdiction and that as a result, when the next test is administered, he “can be the highest scoring candidate and have the number 1 score in the state and be promoted number seven in Elizabeth because of the priority promotion list.” (Objection, appended to Br. Supp. Final Entry, App‟x E, Exh. 196.)
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Along with these written objections, similar concerns were raised at the initial fairness hearing. One suggested that the system constituted “reverse discrimination.” (Tr. 137:15–21.) One police officer argued that it would be one thing if the remedy were simply to “[w]ipe the slate clean,” but that after taking into account priority promotions and promotions of sergeants demoted for budgetary reasons, no matter how well he performs on the next examination, it is possible that the best placement he can achieve on the promotion list is thirty-fifth. (Id. 173:22– 174:15; see also 173:3–7.) A sergeant expressed concerns that priority promotions could cause animosity between races within police departments. (Id. 185:12–187:24.)
Under the terms of the consent decree, eligible claimants who pass the new examination may be placed ahead of these objectors on promotional lists. Some objections overstate the role that race plays in priority promotions, as priority promotions are limited only to those applicants who: qualify as claimants under the terms of the decree; work in one of the 13 enumerated jurisdictions; and pass the new examination. Nevertheless, the objectors correctly state that race is a necessary prerequisite to eligibility for priority promotions.
The priority promotions are nonetheless consistent with federal statutory and constitutional law. As the Supreme Court has observed, “in enacting Title VII of the Civil Rights Act of 1964, Congress intended to prohibit all practices in whatever form which create inequality in employment opportunity due to discrimination on the basis of race, religion, sex, or national origin.” Franks, 424 U.S. at 763. To that end, Congress provided courts equitable discretion to provide the relief necessary to effectuate Title VII‟s purpose of “mak[ing] persons whole for injuries suffered on account of unlawful employment discrimination.” Id. (quoting Albemarle Paper Co. v. Moody, 422 U.S. 405, 418 (1975)). Congress intended courts to use this power robustly, so “that persons aggrieved by the consequences and effects of the unlawful
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employment practice [may] be, so far as possible, restored to a position where they would have been were it not for the unlawful discrimination.” Id. at 764 (citation omitted; alteration added).
In essence, Title VII considers the eradication of discrimination to be an utmost priority, and when discrimination exists, courts enjoy substantial equitable power to put parties into the position that they would have held absent the discriminatory treatment. And notably, the Supreme Court has affirmed retroactive seniority as a form of relief even in the face of potential harm to nonvictims, holding that “sharing of the burden of the past discrimination is presumptively necessary” and “entirely consistent with any fair characterization of equity jurisdiction, particularly when considered in light of our traditional view that „[attainment] of a great national policy . . . must not be confined within narrow canons for equitable relief deemed suitable by chancellors in ordinary private controversies.‟” See id. at 776–78 (quoting Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 188 (1941)). This does not, of course, mean that courts are powerless to limit their exercise of that authority when appropriate for equitable reasons. “[T]he extent to which the legitimate expectations of nonvictim employees should determine when victims are restored to their rightful place is limited by basic principles of equity.” Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 374–75 (1977). This is especially true when “practical realities and necessities” make it necessary to “reconcil[e] competing interests . . . to determine the „special blend of what is necessary, what is fair, and what is workable.‟” Id. (quoting Lemon v. Kurtzman, 411 U.S. 192, 200–01 (1973) (opinion of Burger, C.J.)); see also Romasanta, 717 F.2d at 1156.
In this situation, the Court finds that the consent decree‟s priority promotion arrangement strikes an appropriate balance. It provides a ceiling on priority promotions to ensure that they do not exceed the number of African Americans or Hispanics who would have been expected to be
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promoted absent the disparate impact, and it provides those promotions only in the 13 jurisdictions in which the shortfall consists of at least three African Americans or Hispanics. In other words, the relief is narrowed to such a point that it has an impact on only those jurisdictions in which the examination‟s disparate impact has been most profound. To be sure, this leads to the unavoidable outcome that race will be a factor in administering promotions. However, the Supreme Court has held that such relief is legal, constitutional and appropriate when the racial consideration is necessary to remedy a past instance of discrimination. Wynant v. Jackson Bd. of Educ., 476 U.S. 267, 277–78 (1986). And such make-whole relief is the core of the consent decree. Disparate impact discrimination is premised on the idea that certain practices, even though facially neutral, deprive minority groups of the ability to compete fairly in the workplace. See, e.g., Griggs, 401 U.S. at 431. The relief afforded here is not designed to provide an arbitrary preference based on race. Rather, it arose out of careful examination of the outcomes of past examinations and through evaluations of where the disparate impact of the previous examinations was most profound, and it makes whole the qualified claimants who constitute the most probable victims of the disparate impact. Thus, given the very measured nature of the priority promotions, the Court finds that the objections do not overcome the legitimacy of the remedy under Title VII‟s disparate impact framework. Moreover, the law is too evolved for the Court to find that the only permissible remedy is that the State must not do it again in the future. Some accommodation must be made to place officers in the position where they would have been if no disparate impact had occurred, and the consent decree‟s priority promotion compromise is a reasonable one.
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b. Insufficient Priority Promotions At the opposite end of the spectrum, another set of objectors argues that the prioritypromotion relief is rendered inadequate by the limitation of such promotions to jurisdictions with a shortfall of three or more. An officer from the Irvington Police Department wrote through counsel that “the settlement will have virtually no application to the Town of Irvington,” as Irvington “has continued to operate using the flawed 2009 exam as the basis for promotions.” (Objection, appended to Br. Supp. Final Entry, App‟x E, Exh. 72.) He argues that “the settlement as framed does not appear to be applied uniformly and consistently.” (Id.; see also Tr. 100:22–104:18.) Similarly, the attorney for Hamilton police officers submitted objections based on Hamilton‟s exclusion from the priority promotions provision. (See Br. Supp. Final Entry, App‟x E, Exhs. 101, 205, 447.) As he explained, Hamilton is a township in central New Jersey with a population of 88,464. (E.g., Objection at 4, App‟x E, Exh. 101.) The police department consists of 170 officers, only six of whom are African American. (Id.) The objectors submit that “[w]hen considering the history and lack of minority representation in a supervisory capacity, it is unthinkable that priority promotions in Hamilton would not be included in the Consent Decree.” (Id. at 5.) In discussing this history, the objectors note: that there have been only seven African American police officers in Hamilton history; that it was not until 1994 that two African American officers served concurrently; and that no African American has ever held a supervisory position in the township‟s police force. (Id.) Because the consent decree does not limit Hamilton‟s present ability to promote from the existing list, and because it will take time before a new list can be developed, the decree “will keep any new promotions from joining the supervisor ranks for years to come.” (Id. at 6.) The objectors argue that priority promotions
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should be spread evenly across all affected jurisdictions and that the United States should have required all jurisdictions to cease using the present eligibility lists under the decree. (Id. at 5–6.) The Hamilton objectors‟ counsel supplemented the written objections with a statement at the initial fairness hearing. (See, e.g., Tr. 146:8–153:2, 154:13–156:4.)
These are substantial objections and reflect the unintended but inevitable consequences of settlement, where lines are drawn as a matter of necessity. The State has not admitted liability, and the parties are entitled to some leeway in crafting the terms of a settlement. The practical decision to limit priority promotions to those jurisdictions with shortfalls of three or more serves the twofold purpose of affording the strongest relief only to those jurisdictions most affected by the examination‟s disparate impact while also limiting the disruptive effects of priority promotions. Recognizing the frustration, the Court still does not find the limitations unreasonable, especially where the decree provides objectors with the opportunity to pursue back pay claims and to take a new, fairer examination.
c. Administrative Aspects A third set of objections related to priority promotions addresses administrative issues, such as misidentified or absent claimants in the list of claimants appended to the Second Amended Consent Decree. For example, objections from the Bridgeton Police Department noted that their department is allocated five priority promotions and that of the five claimants named in Attachment C, one is retired, one has passed away, and three have transferred to other departments. (See, e.g., Br. Supp. Final Entry, App‟x E, Exhs. 23, 24.) Suffice it to say that although the consent decree provided a tentative list of claimants, that list is subject to change as the process continues to the individual relief fairness hearing and approval of a Final Relief Awards List.
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Additionally, one objector served as a police officer in a jurisdiction in which priority promotions were available but has since transferred to a jurisdiction without priority promotion entitlement. (See Objection, appended to Br. Supp. Final Entry, App‟x E, Exh. 40.) Because it is highly individualized, that officer‟s issue is better reserved for the individual relief fairness hearing.
d. Qualifications Some objectors expressed concerns that priority promotions will result in the promotion of officers unqualified to serve as police sergeants. The consent decree squarely confronts this threat by providing that no priority promotion can ensue if the applicant does not pass the new examination that the State will develop pursuant to the consent decree. (See Second Am. Consent Decree ¶¶ 61–62, 64.)
4. New Examination At the initial fairness hearing, objectors spoke against the suggested framework for a new examination and in favor of the present multiple-choice format, which they feel is fairer because of its objectivity. (Tr. 129:18–130:1, 131:17–132:8, 136:12–19.) In response, Jones testified about how the present examination fell short and how a new examination could be more useful. The problem with the current examination is that it disregards certain qualities such as leadership, or tests them in a rigid, academic manner. (Id. 132:9–12.) Although a “face-to-face exercise” could obviously never be identical to experience in the field, it would serve as a “better measure,” as can be ascertained from “the evidence that we pulled together, where people who behave in certain ways going through these simulations, when you go down the road, two, three, four, five years, and look at how they performed in the field.” (Id. 132:9–22.) From past experience, Jones attests, there is evidence that these face-to-
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face tests “make far better predications of how you really behave than if you answer a paper and pencil multiple choice question.” (Id. 132:24–133:3.)
On the issue of objectivity, Jones explained that situational testing can call for a “right answer,” a “better answer,” “middle answer,” and a “poor answer,” so that it is possible to “structure that exercise so that if somebody says a certain thing in an answer you could evaluate that.” (Id. 125:5–10.) He added that when testing is based on observations of a candidate, judges are trained what to look for, and “[y]ou hold them to the consistent rules when they make those evaluations” by having more than one judge assess a candidate‟s performance and by training judges through practice sessions and exercises to ensure that the tests are graded consistently and reliably. (Id. 125:11–25.) Objectivity is not only ensured at the front end, but also by going back, reviewing examination scores, and confirming consistency among the reviewing judges‟ scores of an applicant‟s performance. (Id. 126:1–11.)
Even if the current examination is wholly objective and capable of simple determinations of whether an answer is correct or incorrect, these qualities alone do not ensure an accurate measure of whether an applicant is qualified to serve as a police sergeant. As Jones explained, a supervisory position includes many skills relating to leadership and decisionmaking that are not easily measured in multiple-choice format. Jones has demonstrated that there are means in existence that are more nuanced and ultimately more accurate than the present examination, and that methods exist to ensure that those examinations are scored in an objective and consistent manner. Accordingly, the Court finds that the consent decree‟s requirement that the State develop a new examination for future administrations is reasonable and fair.
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D. Miscellaneous Objections There were two additional objection categories that do not fit into the overall discussion of the case‟s merits and relief. The first argument is that the notice provided to affected parties was insufficient or inadequate, and the second argument contends that the parties improperly concealed information from affected non-parties in a manner that stifled their ability to object to the decree.
1. Notice When parties to a Title VII claim enter a consent judgment, the judgment may not be subject to collateral attack under the Constitution or federal civil rights laws if the challenger had “actual notice of the proposed judgment or order sufficient to apprise such person that such judgment or order might adversely affect the interests and legal rights of such person and that an opportunity was available to present objections to such judgment or order.” 42 U.S.C. § 2000e2(n)(1). Due process requires “notice and an opportunity for hearing,” so that a person has “an opportunity for a hearing before he is deprived of any significant property interest.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (citations omitted). For due process purposes, notice need not be actual but must be “reasonably calculated, under all the circumstances, to apprise the interested parties of the pendency of the action and afford them the opportunity to present their objections.” Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). The two objectors who submitted objections citing notice issues obviously attained the actual notice necessary to satisfy both due process and Title VII. The objections relating to this matter ― which come from different objectors but appear to be identical in substance ― speak only to unspecified other officers, asserting that “several police officers who passed the most
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recent promotional exam administered by the service . . . were not required to be served with notice as per the terms of the Decree.” (See Br. Supp. Final Entry, App‟x E, Exhs. 58, 240.)
The notice provided here was adequate. The decree mandated widespread notice through several means. First, notice was provided through U.S. mail to each claimant. (Second Am. Consent Decree ¶ 21(a).) Second, notice was provided to each police sergeant as an attachment to or enclosure with a paycheck or notice of electronic deposit. (Id. ¶ 21(b).) Third, notice went through the U.S. mail to each appointing authority in each civil service jurisdiction, and “to each union or association recognized as being authorized to represent police sergeants in such local jurisdiction and to police officers in the local jurisdictions” in which pre-approval is required for use of present lists or for which priority promotions will be available. (Id. ¶ 21(c).) Further, in terms of constructive notice, the consent decree required that notice be posted on the NJCSC‟s website and appear “in newspapers or other widely-disseminated media” for 14 days. (Id. ¶¶ 22– 23.) As discussed in detail in the State‟s presentation at the initial fairness hearing, the State complied with these notice requirements with very favorable results. (See Tr. 30:8–37:3.) Thus, the notice scheme was thorough and detailed enough that it would be reasonably expected to provide affected individuals with the notice necessary to satisfy due process.
2. Discovery Some objectors contend that they did not receive sufficient information about the terms of the settlement. For example, the Paterson officers seeking to intervene in this case filed a motion, which the Court denied as premature, seeking to compel discovery, citing a dearth of available information. (See generally Br. Supp. Mot. Compel Discovery.) An officer from the Hackensack Police Department objected in writing through counsel, alleging a lack of full
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disclosure based on references to various interrogatories and depositions that do not appear on the docket.
Although “[i]t is well-settled that there exists . . . a common law public right of access to judicial proceedings and records,” and although that right “envisions a pervasive common law right to inspect and copy public records and documents, including judicial records and documents,” the public right of access extends only to “judicial records.” See In re Cendant Corp., 260 F.3d 183, 192 (3d Cir. 2001) (citations and quotation marks omitted). A document is a “judicial record” if it “has been filed with the court, or otherwise somehow incorporated or integrated into a district court‟s adjudicatory proceedings,” such as if a court “interprets or enforces the terms of that document, or requires that it be submitted to the court under seal.” Id. See also United States v. Kushner, 349 F. Supp. 2d 892, 902 (D.N.J. 2005) (Linares, J.) (“A document becomes integrated into court proceedings when, for example, it is „placed under seal, interpreted or enforced by the Court.” (citing Pansy v. Borough of Stroudsburg, 23 F.3d 772, 781 (3d Cir. 1994)).
In this case, the Court is not privy to any evidence and does not rely on any evidence beyond that which is disclosed on the public docket. The only portion of the record placed under seal is a portion of the deposition of D. Hill which the United States cited in its motion for provisional entry of the decree; the seal was limited to permitting redaction of Hill‟s home address and phone number. (See Mot. Seal. (D.E. 42); Order to Seal (D.E. 43); see also D.E. 39 (redacted version of deposition transcript).) Moreover, to the extent the objectors appear to suggest that they should be entitled to conduct discovery of their own, such a system would be unworkable, as it would create unmanageably wide open litigation. In this case, the parties submitted expert reports to support their motion for the consent decree to be provisionally
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entered, and those experts later appeared at the initial fairness hearing, where they answered the questions of any objector with something to ask. (See generally Tr. 98:24–143:10.) The Court thus finds no support for the objectors‟ claim that they were entitled to more information in advance of the initial fairness hearing.
E. Findings on Settlement Terms The Court finds that although the objections made were thoughtful and well-articulated, none warrants a decision to reject the consent decree as written. For the reasons stated above, the Court finds that the settlement is reasonable, fair, adequate, and consistent with federal law. IV. Motion for Intervention As discussed above, on February 9, 2012, 27 police officers employed by the City of Paterson (“movants”) submitted a motion for intervention as of right. [D.E. 57.] The Court heard oral argument at the initial fairness hearing, and for the reasons that follow, denies the motion as untimely.
A. Motion to Intervene Framework The movants seek to intervene as of right due to their interest in the “property or transaction that is the subject of the action.” (Br. Supp. Mot. Intervene 2.) Federal Rule of Civil Procedure 24(a)(2) states: “On timely motion, the court must permit anyone to intervene who: . . . claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede movant‟s ability to protect its interest, unless existing parties adequately represent that interest.” The Third Circuit utilizes a four-element test to determine whether to grant a motion for intervention as of right: the litigant “must establish: „1) a timely application for leave to intervene, 2) a sufficient interest in the underlying litigation, 3) a threat that the interest will be impaired or affected by the
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disposition of the underlying action, and 4) that the existing parties to the action do not adequately represent the prospective intervenor‟s interests.” In re Pet Food Prods. Liab. Litig., 345 F. App‟x 857, 860 (3d Cir. 2009) (quoting Liberty Mut. Ins. Co. v. Treesdale, Inc., 419 F.3d 216, 220 n.4 (3d Cir. 2005)); see also Neidig v. Rendina, 298 F. App‟x 115, 116 (3d Cir. 2008); Kleissler v. United States Forest Serv., 157 F.3d 964, 969 (3d Cir. 1998). A motion to intervene as of right cannot be granted unless each of these elements is satisfied. In re Pet Food Prods. Liab. Litig., 345 F. App‟x at 860 (citing Mountain Top Condo. Ass’n v. Dave Stabbert Master Builder, Inc., 72 F.3d 361, 366 (3d Cir. 1995)).
B. Timeliness The United States argues that movants should not be permitted to intervene because their motion to intervene is untimely. (Br. Opp. Movants Mots. 9–13.) The determination of whether a motion to intervene is timely is based on a totality of the circumstances. In re Cmty. Bank of N. Va., 418 F.3d 277, 314 (3d Cir. 2005); In re Fine Paper Antitrust Litig., 695 F.2d 494, 500 (3d Cir. 1982). Factors to be considered include “(1) the stage of the proceeding; (2) the prejudice that delay may cause the parties; and (3) the reason for the delay.” In re Cmty. Bank of N. Va., 418 F.3d at 314 (citing Mountain Top Condo. Ass’n, 72 F.3d at 369). “[S]ince in situations in which intervention is of right the would-be intervenor may be seriously harmed if he is not permitted to intervene, courts should be reluctant to dismiss a request for intervention as untimely, even though they might deny the request if the intervention were merely permissive.” Mountain Top Condo. Ass’n, 72 F.3d at 369 (quoting 7C Wright, Miller & Kane, Federal Practice & Procedure § 1916, at 424 (1986)).
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1. The Stage of the Proceeding “The mere passage of time . . . does not render an application untimely.” Id. As discussed above, the complaint was filed on January 7, 2010. The parties submitted a joint motion for provisional entry of a consent decree on August 1, 2011. The Court entered the initial consent decree, without a fairness hearing date, on September 15, 2011. The Court entered the first amended consent decree on November 2, 2011. The Court entered the second amended consent decree on November 22, 2012. The second amended consent decree set the date for the initial fairness hearing as March 12, 2012, and required objections to be postmarked no later than 45 days prior to the initial fairness hearing, or January 27, 2012. (Second Am. Consent Decree ¶¶ 19, 24.) On February 9, 2012 that movants filed their motion to intervene. Thus, the movants filed their motion to intervene at a point in which the decree had been entered, notice had been dispensed, the time for objections had closed, and the initial fairness hearing was on the horizon.
2. Prejudice That Delay May Cause Parties “[T]he stage of the proceeding is inherently tied to the question of the prejudice the delay in intervention may cause to the parties already involved.” Mountain Top Condo. Ass’n, 72 F.3d at 370. Here, the parties had not only completed discovery and arrived at a proposed consent decree, but they also bore the administrative burdens incumbent with giving notice to parties in advance of the fairness hearing. The basis of the parties‟ present arrangement is at least partially contingent on the racial breakdowns of the current eligibility lists. Intervention even for the limited purpose of crafting a new agreement would require restructuring of the consent decree, new notice, a new fairness hearing. This unwelcome result after all the notice given requires a very strong reason for the failure to intervene earlier.
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3. The Reason for the Delay When assessing the reason for the delay, “to the extent that the length of time an applicant waits before applying for intervention is a factor in determining timeliness, it should be measured from the point at which the applicant knew, or should have known, of the risk to its rights.” Mountain Top Condo. Ass’n, 72 F.3d at 370 (quoting United States v. Alcan Aluminum, Inc., 25 F.3d 1174, 1183 (3d Cir. 1994)). A review of the movants‟ certifications reveals that of the 27 movants: one learned of the consent decree on an unspecified day in August 2011; 21 learned of the consent decree on September 14, 2011; two learned of the consent decree on September 15, 2011; one learned of the consent decree on September 16, 2011; one learned of the consent decree on an unspecified date in October 2011; and one learned of the consent decree on October 22, 2011. (See Movants‟ Br. Supp. Mot. Intervene, Exh. 3.) Thus, most of the movants received actual notice in mid-September 2011, with the last receiving actual notice sometime in October 2011. The movants did not submit any explanation in their briefs for why they waited until February 9, 2012 to file their motion to intervene. At oral argument, movants‟ attorney‟s explanation was based on the costs, financial and otherwise, of litigating sooner. (Tr. 94:14–22.) Based on the circumstances of this case and how far the litigation had progressed by the time the movants file their motion, this explanation for the delay is inadequate.
4. Totality of the Circumstances Taking these factors together, the Court finds that the motion to intervene is untimely. The movants attained actual knowledge of the consent decree as early as August 2011, and no individual movant learned of the consent decree later than October 2011. Despite this knowledge, the movants waited until February 9, 2012 ― about five months after the first movant learned of the consent decree and over three months after the last movant learned of it ―
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to file the motion to intervene. This delay is unusually long. See, e.g., Mountain Top Condo. Ass’n, 72 F.3d at 370 (motion to intervene filed 37 days after intervenors “learn[ed] that their interests were in jeopardy”); Alcan Aluminum, Inc., 25 F.3d at 1183 (motion to intervene filed 43 days after intervenors “became aware of the potential risk to their contribution claim”); Rowe v. E.I. Dupont De Nemours & Co., No. 06-1810, 2011 WL 3837106, at *2, 4 (D.N.J. Aug. 26, 2011) (Bumb, J.) (motion to intervene filed less than two months after receiving notice). But see Hemy v. Perdue Farms, Inc., No. 11-888, 2011 WL 6002463, at *7 (D.N.J. Nov. 30, 2011) (Wolfson, J.) (noting that five-month delay was abnormally long but that intervention was not untimely because suit was “still in its infancy”).
The length of the delay is especially significant in light of how far the litigation had progressed by the time that movants filed their motion. Permitting intervention would have a real-world impact in that it would disrupt the administration of a consent decree negotiated over a lengthy period of time following extensive discovery. It would undo months of work, including not only the provisional entry of the decree, but also the subsequent distribution of notice and processing of objections. Against this backdrop is the absence of any compelling explanation for why movants waited until just over a month before the initial fairness hearing to submit this motion. The timeliness inquiry focuses on the prejudice the parties would suffer if an intervenor were permitted to join the litigation at the point intervention was first sought. Regardless of the reasons that movants disagree with the consent decree, the record demonstrates that they were aware of it for some time, yet sat on their rights until the process reached a point at which intervention would scuttle much of the progress that the parties made toward settling.
The availability of an opportunity to object has no effect on the Court‟s analysis of whether intervention is permissible, see 42 U.S.C. § 2000e-2(n)(2)(A), but the Court notes that
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although movants‟ motion for intervention is denied, they had a voice in this process. Movants

each submitted timely objections to the consent decree, which the Court has considered

carefully. (See Br. Supp. Final Entry, App‟x E, Exhs. 18, 29, 34, 74, 75, 95, 96, 106, 111, 112,

131, 138, 194, 199, 234, 262, 263, 281, 321, 332, 342, 352, 358, 365, 410, 412, 413.) Movants‟

counsel appeared at the initial fairness hearing and presented arguments, and two movants

personally addressed the Court to express their personal concerns with regard to the consent

decree.

C. Conclusion as to Intervention

For the foregoing reasons, the motion to intervene is denied as untimely.

V. Conclusion

The parties‟ resolution of the issues reflects a conscientious and careful settlement,

reached after lengthy litigation. The nature of the issues, not surprisingly, engendered strong

objections. Applying well-settled authority, the Court finds that the United States and the State

have arrived at a settlement that is fair, adequate, reasonable, and consistent with the law. For

the reasons discussed in this opinion, the motion for final entry is granted and the motion for

intervention is denied. Appropriate orders will be entered with this opinion.

June 12, 2012

/s/ Katharine S. Hayden Katharine S. Hayden, U.S.D.J.

55

 
 NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

UNITED STATES OF AMERICA, Plaintiff,

Civil Action No. 10-91 (KSH) (CLW)

v.

STATE OF NEW JERSEY and NEW JERSEY CIVIL SERVICE COMMISSION,

OPINION APPROVING FINAL RELIEF AWARD LIST

Defendants.

Katharine S. Hayden, U.S.D.J. I. BACKGROUND In 2010, the United States Department of Justice filed a complaint against the State of New
Jersey and the New Jersey Civil S ervice Comm ission (“NJCSC”) alle ging tha t th e sele ction procedures for promotion to the rank of police sergeant, specifically the written examination, had a disparate impact on African Am erican and Hispanic applicants in violation of Title VII of the Civil Rights Act of 1964. [D.E. 1.] After conducntig comprehensive discovery, the parties reached a settlem ent in the sum mer of 2011. The Cour t p rovisionally ente red the con sent dec ree o n September 15, 2011 and then entered am ended consent decrees on November 2, 2011 and November 22, 2011. [D.E. 45, 48, 49.] On J une 12, 2012, after considering the written submissions of the United S tates, the objecti ons to the consent d ecree, and the lengthy presentations made by objectors during the initialfairness hearing, the Court found that the consent decree was “fair, adequate, reasonable, and cons istent with the law” and entered the “Second

1

Amended Consent Decree” [D.E. 49 (“the decree”)] as final. United States v. New Jersey, No. 1091, 2012 WL 3265905, at *31 (D.N.J. June 12, 2012).
In addition to enjo ining the State from administering the challenged sergeant exam and requiring that the State develop a new and lawful selection devi ce for prom oting candidates to sergeant, the decree provides eligible claimants individual remedial relief in the form of back pay and priority promotions. [Decree at Sections III & VI.] On July 9, 2012, as part of the individual relief process, presumptive claimants were notified of the decree and were invited to file a clai m for individual relief by returning an “interest in relief” form. [Id. ¶ 33; 05/08/13 Fairness Hearing Tr. 5:10-19.] The deadline to request relief wa s extended u ntil October 19, 2012 to ensure that claimants who did not receive the initial notice, but were reached in the second m ailing or via telephone, had ample opportunity to submit a timely claim. [See D.E. 82 (“Joint Response”) at 3 n.3; 05/08/13 Fairness Hearing Tr. 6:6-11.] On December 6, 2012, the parties submitted a “Relief Awards List” to the Court outlining the type and am ount of individual relief to be awarded to the 804 candidates who had requested relief. [D.E. 79; 05/08/13 Fairness Hear ing Tr. 6:12-14.] In accordance with the decree, the Cou rt scheduled a fairness h earing on in dividual relief and the parties notified the claimants of their eligibility for relief under the decree. [Decree ¶¶ 43-44; D.E. 80 (Scheduling Order).] The letters to the claim ants indicated whether the can didate was determined to be eligible for back pay and/or priority promotion; the reason for any determination of ineligibility for relief; the candidate’s proposed share of back pay, if any; and notice of the fairness hearing on individual relief . [Joint Response at 4 (citing Decree ¶ 44).] T he claimants were also sent two add itional forms: “Instructions for Filing an Objectio n to Ind ividual Relief” and a blan k “Objectio n to United States ’ Dete rmination Regarding Individual Relief to be
2

Awarded Under the Consent Decree” form and were told that to be timely, any objections had to be postmarked no later than March 9, 2013. [Id. (citing Decree ¶ 46).]
In response to the determ ination letters, the parties received 54 objections. [J oint Response, App’x C.] In their joint response to these objections, the parties recomm ended sustaining three objections, deferred to the Cour t on four objections, and recomm ended denying the remaining 47 objections. [Id. at 5.]
At the conclusion of the individual relief hear ing, having fully considered the candidates’ written objections and the parties’ joint response to them , and the presentations and statem ents made during the hearing, the Courtaddressed the objections to the individual relief determinations, agreed with the parties’ recommendations, and approved the Final Relief Awards List. [See D.E. 83.] Because only one objecto r ap peared at th e i ndividual relief heari ng, the Court files this supplemental opinion reflecting its findings with respect to all of theobjections and points out that the June 12, 2012 rulings on the ad equacy of the relief under the decree necessarily guided the Court’s findings on almost all of the individual objections. [ See also 05/08/13 Fairness Hearing Tr. 29:4-35:13 (where the Court specifically addressed the objections raised by the 18 claim ants who indicated that they were going to attend the hearing but did not attend).] II. OBJECTIONS TO INDIVIDUAL RELIEF
The objections to individual relief fall into the f ollowing categories: (A) 17 objections to the amount of back pay per claimant; (B) 22 objections to ineligibility for priority promotion; (C) nine objections to inelig ibility for relief by candidates who do not satisfy the decree’s definition of “claim ant”; (D) one objection to lim iting prio rity p romotion e ligibility to the ju risdiction in which the candidate too k the sergeant exam ; (E) one objection to paying a fee to ta ke the new sergeant exam ; (F) five objections to ineligibility for re lief based on the candidates’ failure to
3

comply with the decree’s procedures ; and (G) six blank objections. [05/08/13 Fairness Hearing
Tr. 8:3-22.] These categories will be discussed in turn.
A. Objections to Amount of Back Pay per Claimant
To fund the back pay aw ards recoverable by clai mants, the decree required that the S tate
deposit $710,000 into one settlement fund for African American claimants (“Settlement Fund I”)
and $290,000 into another settlement fund for Hispanic claimants (“Settlement Fund II”). [Decree
at ¶¶ 28-29; 05/08/13 Fairness Hearing Tr. 4:24-5:4.] Under the decree, “eligible claimants” are:
any African-American or Hispanic person from those jurisdictions identified in Attachm ent A who has not been prom oted to police sergeant and who:
a) between 2000 and 2009, failed a police sergeant written exam where appointm ents from the eligible list resulted in a shortfall of his or her race;1 or
b) between 2000 and 2008, passed a police sergeant written exam where appointm ents from the eligible list resu lted in a shortf all of his o r her ra ce, but ranked below the lowest-ranking candidate appointed from that eligible list.
[Decree at ¶¶ 3, 43; 05/08/13 Fairness Hearing Tr. 4: 16-23.] Each eligible claimant is entitled to
receive back pay for each year between the exam he or she took that made him or her eligible for
relief and December 31, 2010 (the last full calendar year before the settlement was reached). [Joint
Response at 7, n.10.]
In order to calculate the value of one year of back pay, the parties took the total available
back pay fund amount and divided it by the total number of years for which claimants are eligible.
1 At the initial fairness hearing, the D.O.J. de scribed a “shortfall” as “a descriptive num ber, indicated to show the Court the practical effect of the disparities. It is simply an estimate of how many more additional candidates we would have expected to have been promoted if the state’s use of the written exam did not result in disparities.” [D.E. 69 (“03/12/12 Fairness Hr’g Tr.”) at 16:2117:1; 23:25-24:2.]
4

Based on the calculations used to create the Relief Awards List filed with the Court on December

6, 2012, one year of back pay from Settlem ent Fund I was worth $217.66, and one year of back

pay from Settlement Fund II was worth $192.31. [Joint Response at 7; 03/12/12 Fairness Hr’g Tr.

164:20-165:10; Decree at ¶¶ 31–36, 40–59.]

The following chart provided by the parties during the individual r elief he aring is

instructive:

Settlement Fund I

Settlement Fund 2

(African American

(Hispanic Claimants)

Claimants)

Total Available Back Pay

$710,000

$290,000

Number of Claimants

485

238

Requesting and Eligible for

Back Pay

Number of Years for Which

3,262

1508

Claimants are Eligible for

Back Pay

Value of One Year of Back

$217.66

$191.31

Pay (Total Available Back

Pay/Number of Years)

*All figures based on Relief Awards List filed December 6, 2012.

[05/08/13 Fairness Hearing Tr. 9:2-10:20.]

In response to the individual relief determinations, 17 claimants objected alleging that the

back pay amounts are too low. [05/08/13 Fairness Hearing Tr. 8:24-9:1.] For exam ple, six of

these objectors allege that they are entitled to more than $100,000 in back pay while others allege

they are entitled to $80,000, $66,000, and $40,000 in back pay. Some of the objectors appear to

arrive at these figures by taking the yearly difference between the salary of an officer and that of

a sergeant and then multiplying it by the years for which they believe they are entitled to back pay.

[See, e.g., James Walters objection, attached as App’x C, Exh. 51 to Joint Response.] In their joint

response, the parties recommended that these objections be overruled because they are effectively

barred by the Court’s June 12, 2012ruling that the $1,000,000 back pay fund total was appropriate.

5

[Joint Response at 6; see also 05/08/13 Fairness Hearing Tr. 10:22-11:3 (“The Court has already
ruled that $1 million as a whole is an appropr iate back pay award, and the United State s fairly
distributed those am ounts to those harm ed by the exam ; [the] negotiated settlem ent am ount
necessarily involves comprom ise and does not involve the entire amount that would have been
available in the best possible outcome at trial.”).]
In overruling these same objections after the initial fairness hearing, the Court found that
the $1,000,000 negotiated back pay fund was fair, adequate, and reasonable:
Lines are inevitably drawn when a settlement provides tiered relief. Although the record demonstrates this to be a strong case, that does not guarantee that the United St ates would have obtained the maximum relief available under Title VII had the case gone to trial. The Court’s task here is to determine whether the settlement is fair, reasonable, adequate, and consiste nt with federal law. . . . The settlement extends re lief to m any affected claim ants, and when taken in conjunction with the other relief afforded in the decree, the Court is satisfied that the totality of the relief afforded is adequate. Accordingly, the Courts finds that the back pay award is appropriate.
United States v. New Jersey, 2012 WL 3265905, at *21-22.
The Court is necessarily guided by its previous finding that the negotiated and agreed upon
back pay amount of $1,000,000 is fair and adequate and thus these indi vidual objections are
overruled.
B. Objections to Ineligibility for Priority Promotion
Under the decree, eligible claimants are also entitled to priority promotion with retroactive
seniority. This provis ion dictates that th e State m ust “certify cl aimants eligible for priority
promotion over all other eligible candidates until a minimum of, and no more than, 68 offers of
priority promotions have been m ade to e ligible claimants who pass the new selection procedure
for police sergeant as developed under th[e] decr ee.” [Decree ¶ 60.] The 68 priority prom otions
are allocated to 48 African Am erican candidates and 20 Hispanic candidates. [ Id. ¶ 61.] These
6

promotions are only available in specific jurisd ictions and in am ounts specified in the decree: Atlantic City (f ive Af rican Am erican, two Hisp anic); Brid geton (two African American, one Hispanic); Camden (three African American, one Hispanic); East Orange (two African American, one Hispanic); Elizabeth (three African Am erican, three Hispanic); Hoboken (three Hispanic); Jersey City (six African American, two Hispanic); New Brunswick (one African American, two Hispanic); Newark (14 African American, one Hispanic); Passaic (tw o African Am erican, one Hispanic); Paterson (five African American, one Hispanic); Teaneck (two African American, one Hispanic); and Trenton (thr ee African Am erican). [ Id.; see also Exh. K to Decree; 05/08/13 Fairness Hearing Tr. 5:5-9.]
The parties received 22 objections to determinations of ineligibility for priority promotion and recommend that three of those objections s hould be sustained and 19 overruled. [05/08/13 Fairness Hearing Tr. 11:8-9.]
Seventeen of the objectors argued that they are entitled to priority promotion relief despite the fact that their jurisdiction was not among those named as a jurisdiction with a shortfall of three or more. Two additional candidates took the exam s in priority-promotion jurisdictions but have since either transferred to a non-pr iority promotion jurisdiction or retired. [Joint Response at 910; 05/08/13 Fairness Hearing Tr.11:12-20.] The parties ask thatthese 19 objections be overruled because “th e Court has already co nsidered an d rejected requests to expand the num ber of jurisdictions where prior ity promotions may occur.” [Joint Response at 9-10; 2 see also 05/08/13 Fairness Hearing Tr. 12:1-10 (priority prom otion jurisdictions are those “ that were most harmed
2 The parties also point out that of those objectors, 15 should also be procedurally barred as they did not submit requests for priority promotion. [Joint Response at 10 (citing App’x D, Exhs. 6680; App’x C, Exh. 32).]
7

by the challenged practices becaus e all had sho rtfalls of three or m ore. The Court has already

considered and rejected requests to expand the number of priority promotion jurisdiction[s].”)]

Indeed, during the initial fairness hearing, claimants argued that priority promotions should

not be limited to jurisdictions with a shortfall of three or more and should be expanded beyond the

13 jurisdictions listed in the consent decree. [ See 03/12/12 Fairness Heari ng Tr. 100:8-110:17,

148:21-156:5.]3 The Court rejected these arguments, concluding that

[t]he practical de cision to lim it prio rity p romotions to those

jurisdictions with shortf alls of th ree or m ore serves the twof old

purpose of affording the strongest re lief only to thos e jurisdictions

most affected by th e exam ination’s disparate im pact while also

limiting the disruptive effects of pr iority promotions. Recognizing

the frustration, the Court still does not find the lim

itations

unreasonable, especially where th e decree p rovides objectors with

the opportunity to pursue back pay cl aims and to take a new, fairer

examination.

United States v. New Jersey, 2012 WL 3265905, at *25.

The above notwithstanding, the parties recommend sustaining three objections that resulted

from administrative or technical errors. The State’s database mistakenly led the parties to believe

that Richard Hernandez and Brian Logan we re no longer em ployed by their respective

jurisdictions. [Joint Response at 11.] Because Hernandez and Logan verified their status as current

employees of priority-prom otion jurisdictions, the parties recommend that the Court find the m

eligible for priority promotion. [Id.; see also App’x C, Exhs. 2, 15; 05/08/13 Fairness Hearing Tr.

12:15-13-3.] The parties also recomm end that th e Court find Nathaniel J ohnson, Jr. eligible for

3 Despite the fact that this precise argument was rejected by thisCourt at the initial fairness hearing, counsel Raymond Jones and Brian Curley advan ce these argum ents for a second tim e now on behalf of officers from Hamilton Township and Irvington. [03/12/12 Fairness Hearing Tr. 101:27; 102:9-13; 153:9-156:9; 05/08/13 Fairness Hearing Tr. 12:11-14.] Although they indicated they would be appearing at the fairne ss hearing, neither the officer s nor their counsel attended the hearing.
8

priority promotion because despite not originally receiving a request for priority promotion, upon receiving Johnson’s objection the parties acknowledged that their fax log indicates there was a printing error on the day J ohnson sent his request. [ Id.; see also App’x C, Exh. 1 and App’x D, Exh. 81; 05/08/13 Fairness HearingTr. 13:4-15.] Notably, Johnson wasthe only objector to appear during the individual relief hearing. [See 05/08/13 Fairness Hearing Tr. 13:16-20:16.]
In light of the parties’ representations regarding the administrative errors associated with the previous denials of Hernand ez, Logan, and Johnson’s claim s, the Court is satisfied that these three claimants are eligible for priority promotions. However, as with the back pay analysis, the Court is necessarily guided by its previous determination that the parties’ negotiated provision that priority promotions would be available only for those jurisdictions with a shortfall of three or more was f air an d adequate. W hile the shortf all n umber m ay seem like a n arbitra ry cutof f to th e objectors, and the parties have all but conceded as much, it is not for the Court to now invalidate the negotiated and agreed upon terms of the decree it has already approved in substance.
C. Objections to Ineligibility for Any Relief As noted above, supra at p. 4, to qualify as a “claimant” under the decree, a candidate must have taken the exam between 2000 and 2009 in a jurisdiction in which there was a shortfall of the candidate’s race and must have been de nied prom otion to police sergeant. [ See Decree ¶ 3; 05/08/13 Fairness Hearing T r. 21:3-11.] T he Second Amended Attachment A to the decree sets forth the jurisdictions and years in which th ere was a shortfall of African Am erican and/or Hispanic candidates who were not promoted to sergeant due to the disparate impact of the exam. [See D.E. 79, Exh. B for Second Amended Attachment A.] The parties received nine objections to ineligibility for any relief from candidates who do not satisfy the decree’s definition of “claimant.” [05/08/13 Fairness Hearing Tr. 20:24-21:2.] The
9

parties recommend that these objections be overrule d because “[t]he definition of ‘claim ant’ was crafted during settlement negotiations to ensure that the negotiated relief was distributed to those candidates who were most harm ed by the State’s challenged practices.” [Joint Response at 12.] The parties also point o ut that when initially approving the decree, th e Court rejected objections to this definition, including an objection from Leroy Bibbs, who both then and now objects to the fact that African Am erican candidates from Ke arny are not eligib le f or relief while Hispanic candidates are. [Id. (citing United States v. New Jersey, 2012 WL 3265905, at *21-22); see also App’x C, Exh. 5; 05/08/13 Fairness Hearing Tr. 21:12-15.] Thus, th e parties recommend that the Court overrule the objections of: (1) Jam al Minitee (App’x C., Exh. 10) who took the exam in Union County, in which a shortfa ll did not occur; (2) Patrick LaGuerre (App’x C, Exh. 52) who took the exam in 2008 in East Orange, in which a shortfall did not occur; (3) Leroy Bibbs (App’x C, Exh. 5) who took the exam in Kearny, in which a shortfall of African American candidates did not occur; (4) Eric Brown (App’x C, Exh. 62) who took the challenged exam in 2004 and 2007 in New Brunswick, in which a shortfall of African American candidates did not occur; and (5) Keli Mainor-Oatman (App’x C, Exh. 49) who took the exam in 1998 and, therefore, outside of the date range challenged in this action. [ Id. at 12-13; 05/08/13 Fairness He aring Tr. 21:13-22:3] In addition, the parties ask that the Court overrule the objections of Kevin Coleman, Iris Cruz, Patrick Forrest, and Lawrence Flanagan because they h ave been prom oted to sergean t and thus are not “claimants” entitled to relief. [Joint Responseat 13 (citing App’x C, Exhs. 7, 28, 29, 33); 05/08/13 Fairness Hearing Tr. 22:4-6.]
Recognizing that jurisdictions like Kearny have shortfalls su ch that Hispanic candidates may be eligible for back pay while African American candidates are not (or vice versa), and neither
10

African Americans nor Hispanics are eligible for priority promotion, at the initial fairness hearing
this Court stated that
[t]he United States and the State reached an ag reement in which limited back pay is made available only to claimants in jurisdictions with a sho rtfall of at least on e. Such a decis ion is neither unreasonable nor inequitable; to the contrary, it targets the back pay remedy exclusively to of ficers in ju risdictions where a sta tistically discernible disparate impact exists, ensuring relief in the m ost affected jurisdictions. . . . The settlem ent extends relief to m any affected claim ants, and when ta ken in conjunction with the other relief afforded in the decree, the Court is satisfied that the totality of the relief afforded is adequate.
United States v. New Jersey, 2012 WL 3265905, at *21-22.
Because the definition of “cl aimant” was a negotiated term , contain ing very specific
parameters, which the Court found to be adequate atfer the initial fairnesshearing, these objections
are overruled.
D. Objection to Limitin g Priority Promotio n Eligibilit y to the Jurisdiction in which the Candidate Took the Sergeant Exam
Darrell Henderson, a claim ant who took the sergeant exam in the city of Ca mden, was
deemed eligible for back pay and priority prom otion by the parties but none theless objects to the
limitation of his eligibility for priority promotion to the jurisdiction in which he took the sergeant
exam and a sserts that he should be eligible fo r priority prom otion in any other jurisdiction
participating in the civil service system. [App’x C, Exh. 3.] The parties argue that this objection
has been rendered moot by Henderson’s promotion to sergeant in the Camden County police force,
effective April 12, 2013. [Joint Response at 14 (citing Declaration of Daniel Hill ¶ 6, App’x D,
Exh. 89); 05/08/13 FairnessHearing Tr. 22:11-16;see also id.at 22:17-23:7 (explaining the unique
circumstances facing claimants who took the sergeant’s exam in the city of Camden because that
police force was going through dissolution).]
11

Because Henderson no longer m eets the defin ition of “claim ant,” the Court adop ts the recommendation of the parties and overrules his objection as moot.4
E. Objections Based on Procedural Flaws Five claimants who were previously deemed ineligible for relief have submitted objections suggesting that their ineligibility is solely the result of pro cedural circum stances beyond their control. [05/08/13 Fairness Hearing Tr. 23:20-23.] The parties r ecommend that the objection of Vilma Plaza be overruled but do no t object to th e Court sus taining the rem aining objections of Bernard Davis, James Davis, Lydell James, and Jose Ramirez. [Joint Response at 15.] Plaza subm itted an ob jection s tating that sh e did not receiv e any inform ation about the lawsuit because she moved in 2010. [App’x C, Exh. 58.] The parties acknowledge that the notice of entry of the decree and instructions for submitting a claim for relief were sent to Plaza but were returned due to insufficient address. [Joint Resp onse at 15 (citing Brown Declaration attached as App’x D, Exh. 88 at ¶ 15).] The parties maintain, however, that upon receiving her objection, the United States called Plaza three times and left three messages notifying her that she must submit an Interest in Back Pay and/or Priority Prom otion Form to be considered for relief. [ Id. (citing Brown Decl. at ¶ 16).] Because the United States has not heard back from Plaza, the parties recommend that the Court ov errule her objec tion becaus e she has not subm itted a cla im for m
4 Henderson also objected to pa ying a fee to take a new exam. [App’x C, Exh. 3.] The parties argue that in addition to being moot because Henderson was hired as a sergeant, the Court should overrule this objection and m aintain the gene rally applicable procedure requiring all candidates for sergeant, including those can didates who are eligib le for priority prom otion, to subm it an application and fee to sit for the new selection procedure for sergeant. [Joint Res ponse at 15; 05/08/13 Fairness Hearing Tr. 23:12-19.] Because the decree does not disturb the State’s practice of charging a fee for candidates to take promotional exams, the Court is satisfied that this objection should also be overruled. [05/08/13 Fairness Hearing Tr. 40:4-8.]
12

requesting relief. [Id. at 15-16 (citing Brown De cl. at ¶ 17); 05/08/13 Fairness Hearing Tr. 24:521.]
Despite indicating that she would be present at the relief list fairness hearing, Plaza did not attend to clarify why she had not submitted a claim form requesting relief. In light ofthe foregoing, the Court agrees with the partie s that Plaza h as waived h er elig ibility through her pro cedural deficiencies.5
The four rem aining claim ants, Bernard Davis, Jam es Davis, Lydell Jam es, and J ose Ramirez, argue their in eligibility was the result of circumstances outside of their control. [ See App’x C, Exhs. 11, 12, 43, 53.] Acknowledging that these four claim ants would otherwise be eligible for back pay and/or priority promotion, the parties defer to the Court. [Joint Response at 16-18; 05/08/13 Fairness Hearing Tr. 24:22-24.] After reviewing the claimants’ requests for relief, the Court is satisf ied that these claim ants h ave proffered sufficient explanations of the circumstances surround ing their procedural no ncompliance and will s ustain these objections . Specifically, the Court is persuaded by the fact that:
 Bernard Davis was not regularly ch ecking his mail because he was living at his elderly parents’ house to provide them with care (App’x C, Exh. 53; 05/08/13 Fairness Hearing Tr. 35:17-36:1);
 James Davis did not receive the notices sent to him as was evidenced by the parties’ acknowledgement that his notices were returned due to insufficient address (App’x C, Exh. 11 and Joint Response at 17; 05/08/13 Fairness Hearing Tr. 36:2-18);
5 The parties also argu ed that an interest in re lief form and objection re ceived just prior to the hearing from “Bradley” should also be overrule d as untimely. [05/08/13 Fairness Hearing Tr. 23:24-24:4.] Bradley did not appear the fairness hearing. The Court agrees and finds the interest in relief form and objection untimely. [Id. 39:22-24.]
13

 Lydell Jam es’s notice of revised claim for ms was returne d to the par ties as unc laimed (App’x C, Exh. 12 and Joint Response at 17; 05/08/13 Fairness Hearing Tr. 36:19-37:5); and
 Jose Ramirez resubmitted his interest in relief form as soon as he was notified by the parties that they had not receiv ed his initial request for back pay (App’x C, Exh. 43; App’x D, Exh. 87; 05/08/13 Fairness Hearing Tr. 37:6-15). The Court n otes that the parties inc luded thes e four cand idates in to th e am ended relief
awards order and acknowledge that incorporating back pay for these four candidates, three African American and one Hispanic, has a slight impact on the back pay amount for one year provided in the chart ab ove. [ See 05/08/13 Fairness Hearing Tr. 25:5-11 (e xplaining that inclusion of these four candidates decreases one y ear of back pay for African Am erican candidates by $1.39/year and one year of back pay for Hispanic candidates by 26 cents).]
F. Blank Objections The parties received six objections f rom people who submitted forms without specifying the nature of their objections. [App’x C, Exhs.4, 17, 54, 56, 60, and 61.] The parties contend that they are unable to comment on these submissions except to state that they do not provide any basis for a mending the relief determ inations. [Joint Response at 19; 05/08/13 Fairness Hearing Tr. 27:21-24.] Because these objectors did not pro vide the basis for their respective ob jections and did not appear at the fairness hear ing to voice their objections, the Court m ust overrule those objections.
14

III. CONCLUSION

Based on the foregoing, the Court agrees with the parties’ position that the general

objections to (A) the amount of back pay and (B) jurisdiction eligibility for priority prom otions

(47 objections in total) are effectively barred by this Court’s June 12, 2012 opinion approving the

terms of the consent decree. [05/08/13 Fairness Hearing Tr. 37:16-21.] With respect to the more

nuanced objections, the Court agrees with the parties’ recommendation and will sustain the

objections of Nathaniel Johnson, Jr.; Brian Logan; and Richard Hernandez, and hold that they are

eligible for priority promotion because the United States’ earlier determination of ineligibility was

the result of administrative errors. [Id. 37:22-38:2.] The Court will also sustain the objections of

Bernard Davis; Jam es Davis; Lydell Jam es; an d Jose Ramirez, who were previously deem ed

ineligible for relief but have subm itted objections suggesting that their inelig ibility is solely th e

result of procedural circumstances beyond their control. [Id. 38:3-5.] The Court overrules all other

objections and approves the amended relief awards list as a final relief awards list. [Id. 38:6-9.]

Date: April 10, 2014

/s/ Katharine S. Hayden Katharine S. Hayden, U.S.D.J.

15

 
 Case: 12-2964 Document: 003111291837 Page: 1 Date Filed: 06/13/2013
NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT _____________ No. 12-2964 _____________
UNITED STATES OF AMERICA v.
STATE OF NEW JERSEY; NEW JERSEY CIVIL SERVICE COMMISSION,
*Francisco Brito, et al., Appellants
*(Pursuant to Fed. R. App. P. 12(a)) _____________ On Appeal from the United States District Court for the District of New Jersey (Case No. 2-10-cv-00091) District Judge: Honorable Katharine S. Hayden _____________ Submitted Under Third Circuit L.A.R. 34.1(a) May 10, 2013 _____________
Before: SLOVITER, FUENTES, and ROTH, Circuit Judges. (Opinion Filed: June 13, 2013) _____________ OPINION OF THE COURT _____________
1

Case: 12-2964 Document: 003111291837 Page: 2 Date Filed: 06/13/2013
FUENTES, Circuit Judge: On June 12, 2012, the Honorable Katharine S. Hayden of the United States District Court
for the District of New Jersey approved a consent decree (“Decree”) between the United States and the State of New Jersey and the New Jersey Civil Service Commission (“NJCSC,” and together with the State of New Jersey, the “State” ). The Decree was the end result of a complaint that the United States had filed against the State in 2010 alleging that the NJCSC’s selection process for police sergeant positions had a disparate impact on African American and Hispanic applicants in violation of Title VII of the Civil Rights Act of 1964. The Decree requires the State to take actions such as obtaining pre-approval from the United States before certifying candidates for police sergeant promotions; establishing a new examination and promotion process for police sergeants; and providing back pay for eligible claimants.
Prior to reaching this settlement, the parties engaged in extensive discovery, exchanged expert reports on disparate impact, job-relatedness and validity, and engaged in settlement conferences before the Honorable Michael A. Shipp. The parties twice amended the contents of the original consent decree, and a fairness hearing was held on March 12, 2012 before Judge Hayden. Objectors to the Decree were invited to submit any written objections by January 27, 2012, and had the right to appear and voice objections at the fairness hearing. Over 400 objections were received and most of the fairness hearing was devoted to hearing from objectors.
On February 9, 2012, twenty-seven police officers employed by the City of Paterson, New Jersey (the “Objectors”) filed a motion to intervene as of right, a motion for discovery, and a motion for a preliminary injunction. The Objectors also submitted objections to the Decree. On March 8, 2012, the Objectors also filed a motion for postponement of the initial fairness hearing. On that same day, the District Court denied the motion for discovery, for a preliminary
2

Case: 12-2964 Document: 003111291837 Page: 3 Date Filed: 06/13/2013
injunction, and for postponement of the fairness hearing, but ordered the motion to intervene to be heard at the fairness hearing.
After conducting the fairness hearing, the District Court found, in a thoughtful and extensive written opinion, that the Decree is fair, adequate, reasonable and consistent with the law. After properly considering the totality of the circumstances, the District Court also denied the Objectors’ motion to intervene as untimely since it was filed at a time when the notice for objections had already closed and at a point that would unduly prejudice the parties.
The appellants in this matter consist of the Objectors and of another group of police officers affected by the Decree who objected to the Decree at the fairness hearing but did not move to intervene (the “Non-Intervenors”). We have jurisdiction over the appeal of the Objectors pursuant to 28 U.S.C. § 1291. However, we do not have jurisdiction over the appeal of the Non-Intervenors, as they are not parties to the proceedings in the District Court. United States v. Stoerr, 695 F.3d 271, 275-76 (3d Cir. 2012). Although non-parties to a district court’s proceedings may appeal under certain circumstances, Binker v. Pennsylvania, 977 F.2d 738, 745-47 (3d Cir. 1992), we do not find such circumstances present here, as the Non-Intervenors had an opportunity to intervene as parties but declined to do so. Therefore, we proceed only as to the Objectors’ appeal.
We review a district court’s denial of a motion to intervene for abuse of discretion but apply a more stringent standard to denials of intervention as of right. Benjamin ex rel. Yock v. Dep’t of Pub. Welfare of Pennsylvania, 701 F.3d 938, 947 (3d Cir. 2012). “We will reverse a district court’s determination on a motion to intervene of right if the court applied an improper standard or reached a decision that we are confident is incorrect.” Id. (internal citations omitted). We review the judgment of a district court to approve a consent decree for abuse of discretion.
3

Case: 12-2964 Document: 003111291837 Page: 4 Date Filed: 06/13/2013
In re Tutu Water Wells CERCLA Litig., 326 F.3d 201, 207 (3d Cir. 2003). Parties challenging a district court’s decision to approve a consent decree bear a heavy burden. Id. (internal citations omitted).
On appeal, the Objectors challenge the District Court’s denial of their motion to intervene and the approval of the Decree. They argue that the United States has not sufficiently shown that the State’s promotion procedures had a disparate impact on African American and Hispanic applicants in Paterson, and that the Decree violates their constitutional rights to equal protection and due process.
After carefully reviewing the record and the arguments on appeal, we find no basis for disturbing the District Court’s well-reasoned and thorough opinion. We agree that the Decree represents a settlement that is fair, adequate, reasonable, and consistent with the law. We also agree that the Objector’s motion to intervene was untimely, and, therefore, properly denied. Accordingly, we hereby affirm substantially for the reasons stated by Judge Hayden in her opinion.
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 Case 2:10-cv-00091-KSH-CLW Document 38 Filed 08/01/11 Page 1 of 9 PageID: 199

THOMAS E. PEREZ Assistant Attorney General LORETTA KING Deputy Assistant Attorney General DELORA L. KENNEBREW Chief ESTHER G. LANDER Deputy Chief VARDA HUSSAIN VALERIE L. MEYER HILARY J. FUNK ELIZABETH B. BANASZAK TREVOR S. BLAKE II Trial Attorneys United States Department of Justice Civil Rights Division Employment Litigation Section 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530 Telephone: (202) 305-4267
Counsel for Plaintiff United States
UNITED STATES OF AMERICA,
Plaintiff,
v.
STATE OF NEW JERSEY AND NEW JERSEY CIVIL SERVICE COMMISSION,
Defendants.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
VICINAGE OF NEWARK
Civil Action No. 2:10-cv-00091-KSH-MAS
Hon. Katharine S. Hayden

JOINT MOTION FOR PROVISIONAL ENTRY OF CONSENT DECREE AND SCHEDULING OF INITIAL FAIRNESS HEARING
Pursuant to the Court’s May 20, 2011 Order (Dkt. No. 35), Plaintiff United States of
America (“United States”) and Defendants State of New Jersey and New Jersey Civil Service
Commission (collectively, the “State”) request that this Court provisionally enter the proposed

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Consent Decree (the “Decree”) and schedule an Initial Fairness Hearing to be held at least ninety days after the Court enters an order scheduling the hearing. Plaintiff United States also attaches an unopposed Memorandum in Support of this Motion and proposed Order.
Under the Decree, the parties will move for final approval and entry of the Decree following an Initial Fairness Hearing. The Decree provides that the Court will give the parties at least ninety days’ notice of the date and time set for an Initial Fairness Hearing. This period is necessary to give individuals whose interests may be affected by the Decree notice of and an opportunity to object to the terms of the Decree. In addition, prior to the Initial Fairness Hearing, the parties will address each of the objections timely received.
At this Initial Fairness Hearing, the Court will have the opportunity to consider and resolve any objections to the terms of the Decree. Assuming the Court concludes at the end of the Initial Fairness Hearing that the Decree is lawful, fair, reasonable, adequate, and consistent with the public interest, the parties will move for final approval and entry of the Decree. I. SUMMARY OF MAJOR ELEMENTS OF THE DECREE
In order to assist the Court, below is an overview of the major elements of the Decree.1 A. General Injunctive Relief
 The State, in consultation with the United States, will develop and administer a new lawful procedure for selecting candidates for promotion to the position of police sergeant in local jurisdictions. (Decree, ¶ 15.)
1 This is intended only as a summary of the major elements and does not set forth every detail of the Decree.
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 The State will cease using current eligible lists to appoint police sergeants in local jurisdictions in which continued use of such lists may create an additional shortfall of African-American and/or Hispanic candidates. (Decree, ¶ 16.)
B. Individual Relief  The State will provide, where appropriate, individual relief in the form of back pay and/or priority promotions with retroactive seniority to persons defined as Claimants in the Decree in 43 specified local jurisdictions who, because of the employment practices challenged by the United States in this action, were denied promotion to the rank of police sergeant. (Decree, ¶¶ 31, 60, 76.)  The State shall certify 68 Claimants eligible for priority promotions in 13 specified local jurisdictions. (Decree, ¶ 61.) The 68 priority promotions shall be made to 48 African-American candidates and 20 Hispanic candidates.  Before any eligible Claimant receives a priority promotion, s/he must first must pass the new, lawful selection procedure developed by the State under the Decree. (Decree, ¶ 62.)
C. Fairness Hearings, Objections, and Individual Relief Claims Process  Prior to the Initial Fairness Hearing, individuals whose interests may be affected by the Decree will receive notice of the terms of the Decree, the date for the initial fairness hearing and an opportunity to file objections with the Court. (Decree, ¶¶ 20-23.) At the Initial Fairness Hearing, the Court will consider any objections received, as well as the parties’ responses to those objections. (Decree, ¶¶ 19-20, 27.) If the Court concludes at the end of the
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Initial Fairness Hearing that the Decree is lawful, fair, reasonable, adequate, and consistent with the public interest, the parties will move for final approval and entry of the Decree. (Decree, ¶ 27.)  The Decree sets forth a process, which would occur after provisional entry of the Decree, for persons who believe that they are entitled to individual relief to submit Interest in Relief forms to the United States. (Decree, ¶ 34.) The United States will make individual relief determinations for all Claimants after considering any timely raised objections by the State. (Decree, ¶¶ 37-41.)  Under the Decree, a second fairness hearing, the Fairness Hearing on Individual Relief, would take place after the individual claims process. (Decree, ¶ 43.) At the Fairness Hearing on Individual Relief, the Court would approve or modify the individual relief determinations made by the United States and consider any timely made objections. (Decree, ¶ 49.) The Court will then approve a Final Relief Awards List. (Decree, ¶¶ 49-51.)
II. TIMELINE OF ACTIONS RELATED TO FAIRNESS HEARINGS UNDER THE DECREE In order to assist the Court, below is a timeline of actions related to the Initial Fairness
Hearing and the Fairness Hearing on Individual Relief. A. Initial Fairness Hearing  Provisional Entry of Decree and Scheduling of Initial Fairness Hearing: At least 90 days after the Court provisionally enters the Decree.
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 75 days before Initial Fairness Hearing: State to mail and publish notice of the Initial Fairness Hearing and forms for objections (Decree, ¶¶ 21-23).
 45 days before Initial Fairness Hearing: Deadline for mailing objections to the United States (Decree, ¶ 24(c)).
 30 days before Initial Fairness Hearing: Deadline for United States to provide objections to the State (Decree, ¶ 25).
 10 days before Initial Fairness Hearing: Deadline for United States to file all objections with the Court and for parties to file with Court their responses to objections (Decree, ¶ 26).
 [Date to be determined by the Court]: Date of the Initial Fairness Hearing, which will be held at __:____ a.m./p.m. at Martin Luther King Building & U.S. Courthouse, 50 Walnut Street, Courtroom PO 05, Newark, New Jersey 07101 (Decree, ¶¶ 19-20, 27).
 During or after the Initial Fairness Hearing, the parties will move the Court for final approval and entry of the Decree (Decree, ¶ 27).
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B. Fairness Hearing on Individual Relief  30 days after final approval and entry of the Decree: Deadline for State to deposit one million dollars (US $1,000,000.00) into the settlement fund accounts and to mail notice of entry of Decree and the interest in relief forms (Decree, ¶¶ 28, 33).  120 days after entry of the Decree: Deadline for the United States to provide preliminary Relief Awards List to the State (Decree, ¶ 35).  150 days after entry of the Decree: Deadline for the State to provide to United States any objections to preliminary Relief Awards List (Decree, ¶ 36).  180 days after entry of the Decree: Deadline for the United States to file the Relief Awards List with the Court and to move for a Fairness Hearing on Individual Relief (Decree, ¶¶ 40-43). Subsequently, the Court may schedule a Fairness Hearing on Individual Relief (Decree, ¶ 43).  80 days before the Fairness Hearing on Individual Relief: Deadline for United States to provide notice of Fairness Hearing on Individual Relief and objection forms to Claimants (Decree, ¶ 44).  70 days before the Fairness Hearing on Individual Relief: Deadline for State to file its objections to Relief Awards List with the Court (Decree, ¶ 45).  30 days before the Fairness Hearing on Individual Relief: Deadline for United States to provide the State with copies of objections it has received (Decree, ¶ 47).  10 days before the Fairness Hearing on Individual Relief: Deadline for United States to file objections with the Court and for parties to file responses to objections (Decree, ¶ 49)
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 [Date to be determined by the Court]: Date of the Fairness Hearing on Individual Relief, which will be held at __:____ a.m./p.m. at Martin Luther King Building & U.S. Courthouse, 50 Walnut Street, Courtroom PO 05, Newark, New Jersey 07101 (Decree, ¶ 49). Subsequently, the Court may approve the final Relief Awards List (Decree, ¶¶ 49-51).
III. CONCLUSION For the reasons above, the parties respectfully request that the Court enter the
accompanying proposed Order, which provisionally enters the Decree and sets the time, date, and location of an Initial Fairness Hearing.

Date: August 1, 2011

Respectfully submitted,
THOMAS E. PEREZ Assistant Attorney General LORETTA KING Deputy Assistant Attorney General DELORA L. KENNEBREW Chief
By: _s/ Varda Hussain___________ ESTHER G. LANDER Deputy Chief VARDA HUSSAIN VALERIE L. MEYER HILARY J. FUNK ELIZABETH B. BANASZAK TREVOR S. BLAKE II Trial Attorneys United States Department of Justice Civil Rights Division Employment Litigation Section 950 Pennsylvania Avenue, N.W. Patrick Henry Building, Room 4908 Washington, D.C. 20530 (202) 305-4267

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United States Attorney’s Office Peter Rodino Federal Building 970 Broad Street, Suite 700 Newark, New Jersey 07102 (973) 645-2700 Counsel for Plaintiff United States
KEVIN JESPERSEN Assistant Attorney General LISA D. RUCH Deputy Attorney General By: _s/ Kevin Jespersen___________ KEVIN JESPERSEN Department of Law and Public Safety, Division of Law Richard J. Hughes Justice Complex Post Office Box 112 Trenton, New Jersey 08625-0112 Telephone: (609) 292-8866 Counsel for Defendants State of New Jersey and New Jersey Civil Service Commission
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CERTIFICATE OF SERVICE I hereby certify that on August 1, 2011, I electronically filed the Joint Motion for Provisional Entry of Consent Decree and Scheduling of Initial Fairness Hearing (“Motion”), the United States’ Memorandum in Support of the Joint Motion with Exhibits, and a Proposed Order with the Clerk of the Court using the CM/ECF system, which will then send a notification of electronic filing to the following: Kevin Jespersen, Esquire Assistant Attorney General Lisa Dorio Ruch, Esquire Deputy Attorney General R.J. Hughes Justice Complex P.O. Box 112 Trenton, New Jersey 08625-0112 kevin.jespersen@dol.lps.state.nj.us lisa.ruch@dol.lps.state.nj.us
By: s/ Varda Hussain VARDA HUSSAIN Senior Trial Attorney U.S. Department of Justice Civil Rights Division Employment Litigation Section 950 Pennsylvania Avenue, N.W. Patrick Henry Building, Room 4908 Washington, D.C. 20530 (202) 305-4267 Counsel for Plaintiff United States
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THOMAS E. PEREZ Assistant Attorney General LORETTA KING Deputy Assistant Attorney General DELORA L. KENNEBREW Chief ESTHER G. LANDER Deputy Chief VARDA HUSSAIN VALERIE L. MEYER HILARY J. FUNK ELIZABETH B. BANASZAK TREVOR S. BLAKE II Trial Attorneys United States Department of Justice Civil Rights Division Employment Litigation Section 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530 Telephone: (202) 305-4267
Counsel for Plaintiff United States
UNITED STATES OF AMERICA,
Plaintiff,
v.
STATE OF NEW JERSEY AND NEW JERSEY CIVIL SERVICE COMMISSION,
Defendants.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
VICINAGE OF NEWARK
Civil Action No. 2:10-cv-00091-KSH-MAS
Hon. Katharine S. Hayden

PLAINTIFF UNITED STATES’ MEMORANDUM OF LAW IN SUPPORT OF THE PARTIES’ JOINT MOTION FOR PROVISIONAL ENTRY OF CONSENT DECREE
AND SCHEDULING OF FAIRNESS HEARING

Case 2:10-cv-00091-KSH-CLW Document 38-1 Filed 08/01/11 Page 2 of 33 PageID: 209
TABLE OF CONTENTS
I. INTRODUCTION ................................................................................................................ 1 II. PROCEDURAL BACKGROUND....................................................................................... 2 III. FACTUAL BACKGROUND ............................................................................................... 3
A. Disparate Impact ........................................................................................................... 3 B. Job-Relatedness ............................................................................................................ 4 IV. OVERVIEW OF THE CONSENT DECREE ...................................................................... 7 A. Injunctive Relief ........................................................................................................... 7 B. Individual Relief ........................................................................................................... 8
1. Individuals Potentially Eligible For Relief .......................................................... 8 2. Back Pay .............................................................................................................. 9 3. Priority Promotions ............................................................................................. 9 C. Fairness Hearings, Objections, And Individual Relief Claims Process...................... 10 1. Initial Fairness Hearing ..................................................................................... 10 2. Individual Relief Claims Process And Fairness Hearing On Individual
Relief ................................................................................................................. 10 D. Continuing Jurisdiction And Duration Of The Decree............................................... 11 V. ARGUMENT....................................................................................................................... 11 A. Standard Of Review.................................................................................................... 11 B. The Consent Decree Is Lawful, Fair, Reasonable, Adequate, And Consistent With
The Public Interest ...................................................................................................... 13 1. The United States Is Likely To Prevail At Trial................................................ 13
a. The Employment Practices Challenged By The United States Resulted In A Disparate Impact Upon African-American And Hispanic Candidates................................................................................. 14
b. There Is Insufficient Evidence That The Challenged Practices Are JobRelated And Consistent With Business Necessity................................... 17
2. The Relief Sought Is Appropriate...................................................................... 20 a. The Prospective Injunctive Relief Should Be Awarded .......................... 20
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Case 2:10-cv-00091-KSH-CLW Document 38-1 Filed 08/01/11 Page 3 of 33 PageID: 210 b. The Individual Relief Should Be Awarded.............................................. 21 c. To Avoid Future Challenges To The Relief Awarded By The Court, The Decree Provides For Fairness Hearings Prior To Entry Of A Final Relief Order ........................................................................................................ 24
C. The Ricci v. DeStefano Standard Is Easily Satisfied .................................................. 25 VI. CONCLUSION.................................................................................................................... 26
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TABLE OF AUTHORITIES
Cases Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975)........................................................... passim Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974) ............................................................... 11 Bazemore v. Friday, 478 U.S. 385 (1986) .................................................................................... 14 Bockman v. Lucky Stores, Inc., No. CIV S 83-039 RAR, 1986 WL 10821
(E.D.Cal. Aug. 11, 1986), aff’d, 826 F.2d 1069 (9th Cir. 1987) ......................................... 23 Booker v. Taylor Milk Co., 64 F.3d 860 (3d Cir. 1995)................................................................ 22 Bradley v. City of Lynn, 443 F. Supp. 2d 145 (D. Mass. 2006) .................................................... 19 Bryan v. Pittsburgh Plate Glass Co., 494 F.2d 799 (3d Cir. 1974) .............................................. 13 Carson v. Am. Brands, Inc., 450 U.S. 79 (1981) .......................................................................... 11 Connecticut v. Teal, 457 U.S. 440 (1982)..................................................................................... 19 Dothard v. Rawlinson, 433 U.S. 321 (1977)................................................................................. 15 Edwards v. City of Houston, 78 F.3d 983 (5th Cir. 1996) ............................................................ 25 El v. Se. Pa. Trans. Auth., 479 F.3d 232 (3d Cir. 2007) ......................................................... 17, 19 Ensley Branch of NAACP v. Seibels, 616 F.2d 812 (5th Cir. 1980) ............................................. 19 Franks v. Bowman Transp. Co., 424 U.S. 747 (1976)............................................................ 22, 23 Girsh v. Jepson, 521 F.2d 153 (3d Cir. 1975)............................................................................... 12 Griggs v. Duke Power Co., 401 U.S. 424 (1971) ................................................................... 14, 17 Guardians Ass’n of the New York City Police Dep’t v. Civil Serv. Comm’n,
630 F.2d 79 (2d Cir. 1980) ............................................................................................ 18, 19 Hazelwood Sch. Dist. v. United States, 433 U.S. 299 (1977) ....................................................... 15 Int’l Bhd. of Teamsters v. United States, 431 U.S. 324 (1977)............................................... 20, 21 Mardell v. Harlesville Life Ins. Co., 65 F.3d 1072 (3d Cir. 1995) ............................................... 20
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Moore v. City of San Jose, 615 F.2d 1265 (9th Cir. 1980) ........................................................... 23 NAACP v. N. Hudson Reg’l Fire & Rescue, 742 F. Supp. 2d 501 (D.N.J. 2010)......................... 19 Newark Branch, NAACP v. City of Bayonne, 134 F.3d 113 (3d Cir. 1998) ................................. 14 Newark Branch, NAACP v. Town of Harrison, 940 F.2d 792 (3d Cir. 1991) .............................. 15 Ottaviani v. State Univ. of N.Y., 875 F.2d 365 (2d Cir. 1989)...................................................... 15 Ricci v. DeStefano, 557 U.S. __, 129 S. Ct. 2658 (2009) ....................................................... 25, 26 Stagi v. Nat’l R.R. Passenger Corp., 391 Fed. App‟x 133 (3d Cir. 2010).................................... 15 United States v. City of Miami, 614 F.2d 1322 (5th Cir. 1980), modified per curiam,
664 F.2d 435 (5th Cir. 1981) ............................................................................................... 12 United States v. New Jersey, 658 F. Supp. 9 (D.N.J. 1986), aff’d sub nom.................................. 20 United States v. New Jersey, Nos. CIV 88-5087 WGB, CIV 88-4080(MTB),
CIV. 87-2331(HAA), 1995 WL 1943013 (D.N.J. March 14, 1995) ............................ passim Vulcan Pioneers, Inc. v. N.J. Dep’t of Civil Serv., 625 F. Supp. 527 (D.N.J. 1985) .............. 17, 18 Vulcan Pioneers, Inc. v. N.J. Dep’t of Civil Serv., 832 F.2d 811 (3d Cir. 1987).................... 20, 21 Vulcan Soc’y of New York City Fire Dep’t v. Civil Serv. Comm’n, 360 F. Supp. 1265
(S.D.N.Y. 1973), aff’d 490 F.2d 387 (2d Cir. 1973) ........................................................... 18 Waisome v. Port Auth., 948 F.2d 1370 (2d Cir. 1991) ................................................................. 15
Statutes 42 U.S.C. § 2000e et seq................................................................................................................. 1 42 U.S.C. § 2000e-2(k)(1)(A)(i) ............................................................................................. 14, 17 42 U.S.C. § 2000e-2(k)(1)(A)(ii) .................................................................................................. 14 42 U.S.C. § 2000e-2(n)(1) ...................................................................................................... 24, 25 42 U.S.C. § 2000e-2(n)(1)(A)...................................................................................................... 25 42 U.S.C. § 2000e-5(g) ................................................................................................................. 22 42 U.S.C. § 2000e-6.................................................................................................................. 2, 13
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Case 2:10-cv-00091-KSH-CLW Document 38-1 Filed 08/01/11 Page 6 of 33 PageID: 213 Regulations 29 C.F.R. § 1607.14 ...................................................................................................................... 18 29 C.F.R. § 1607.4(C)................................................................................................................... 17 29 C.F.R. § 1607.5(G) .................................................................................................................. 19
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PLAINTIFF UNITED STATES’ MEMORANDUM OF LAW IN SUPPORT OF THE PARTIES’ JOINT MOTION FOR PROVISIONAL ENTRY OF CONSENT DECREE
AND SCHEDULING OF FAIRNESS HEARING I. INTRODUCTION
Plaintiff United States of America (“United States”) submits this memorandum in support of the parties‟ joint Motion for Provisional Entry of Consent Decree and Scheduling of Fairness Hearing (“Motion”). The parties‟ joint Motion requests the Court to provisionally enter a proposed settlement agreement as a Consent Decree (the “Decree”), which is attached as Exhibit 1, and schedule an initial fairness hearing. The initial fairness hearing will allow the Court to consider any objections to the terms of the Decree prior to final approval and entry.1
As set forth below, the Court should provisionally enter the Decree because its terms are lawful, fair, reasonable, adequate, and consistent with the public interest. These terms include: (1) ensuring that the employment practices used by New Jersey to promote candidates to the position of police sergeant do not violate Title VII of the Civil Rights Act of 1964 , as amended (“Title VII”), 42 U.S.C. § 2000e et seq., on the basis of race and/or national origin; (2) establishing a new, lawful selection procedure that ensures promotions to police sergeant are based upon merit and do not unnecessarily exclude qualified African-American and Hispanic candidates; and (3) providing appropriate individual relief in the form of back pay and/or priority promotions to qualified persons who were denied promotion to police sergeant because of the employment practices challenged by the United States in this case.
1 After all objections are received as to the terms of the Decree, the parties will file another brief addressing those objections and requesting final approval and entry of the Decree.
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II. PROCEDURAL BACKGROUND On January 7, 2010, pursuant to Section 707 of Title VII, 42 U.S.C. § 2000e-6, the
United States commenced this action against New Jersey to enforce Title VII. The United States‟ complaint alleges that the State has engaged in a pattern or practice of race and/or national origin discrimination based upon its use of a written exam for promotion to police sergeant. Specifically, the United States alleges that, since 2000, the State‟s (1) pass/fail use of the police sergeant written exam and (2) certification of police sergeant candidates in descending rank-order based on a combination of candidates‟ written exam scores and seniority credits have resulted in an unlawful disparate impact upon African-American and Hispanic candidates for promotion to the rank of police sergeant in local jurisdictions participating in New Jersey‟s civil service system.2
The United States and New Jersey (collectively, the “parties”) have engaged in a significant amount of discovery. In addition to information provided by the State during the United States‟ two-year pre-suit investigation,3 the State produced voluminous information relating to the issues of disparate impact, job-relatedness, and validity during discovery. The parties exchanged reports from their respective experts on disparate impact; the State produced its expert report on job-relatedness and validity; the United States engaged an expert in industrial
2 The United States‟ complaint in this action does not include any allegation of intentional discrimination under Title VII and is not based upon any individual charges or complaints of discrimination. 3 By letter dated May 22, 2008, the United States notified the State that it would be investigating whether the State had engaged in a pattern or practice of discrimination against AfricanAmerican and Hispanics based on its use of a written exam for promotion to police sergeant. The United States then conducted a two-year investigation involving document review, data analysis, and consultation with experts.
2

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organizational psychology to analyze job-relatedness and validity; and the parties conducted depositions related to disparate impact, job-relatedness, and validity.
As a result of extensive settlement discussions, the United States and the State have negotiated and executed the attached Decree, which is the subject of this memorandum. See Exhibit 1.
III. FACTUAL BACKGROUND For purposes of seeking provisional and final entry of the Decree, the United States
makes the following factual assertions. A. Disparate Impact
Since at least 2000, the process used by New Jersey to screen and select candidates for promotion to police sergeant in local jurisdictions that participate in the civil service system has included a written exam. See Declaration of Dr. Bernard R. Siskin, Ph.D. (“Siskin Decl.”), attached as Exhibit 2, at ¶ 2. From 2000 to 2009 inclusive, at least 182 counties and municipalities in the State participated in the civil service system with respect to screening and selecting candidates for the position of police sergeant. Id. Candidates who meet the minimum qualifications set by the State, and who achieve a passing score on the exam, are placed in descending rank order on eligible lists based on final scores. Id. Final scores are a combination of written exam scores, which are weighted 80 percent, and seniority credits, which are weighted 20 percent. Id.
Between 2000 and 2009 inclusive, the State administered the exam on a yearly basis to approximately 6,392 white candidates, 1,343 African-American candidates, and 1,363 Hispanic candidates. Id. According to the United States‟ expert, Dr. Bernard R. Siskin, Ph.D., from 2000 through 2009 inclusive, African-American and Hispanic candidates passed the police sergeant
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exam at a statistically significant lower rate than white candidates. Id. ¶¶ 5-6. Dr. Siskin concluded that the disparity in pass rates between African-American and white candidates from 2000 to 2009 equates to 17.33 units of standard deviation. Id. ¶ 5. Dr. Siskin also concluded that the disparity in pass rates between Hispanic and white candidates from 2000 to 2009 equates to 12.88 units of standard deviation. Id. ¶ 6.
According to Dr. Siskin, from 2000 to 2008 inclusive, the State‟s determination and use of final scores to certify candidates in descending rank order has resulted in a statistically significant disparate impact upon African Americans and Hispanics. Id. ¶¶ 7-8. Dr. Siskin concluded that from 2000 to 2008, African Americans and Hispanics who passed the police sergeant exam received statistically significant lower ranks on eligible lists than whites. Id. The likelihood that an African-American candidate would be ranked high enough to be considered for appointment, as compared to a white candidate, equates to 7.77 units of standard deviation, and the likelihood that a Hispanic candidate would be ranked high enough to be considered for appointment, as compared to a white candidate, equates to 4.66 units of standard deviation. Id.
Based upon Dr. Siskin‟s analysis, absent the disparate impact resulting from the pass/fail and rank-order use of the police sergeant written exam, an estimated 75 African Americans and 30 Hispanics would have been promoted to the rank of police sergeant in 43 jurisdictions throughout New Jersey. Id. ¶ 10.
B. Job-Relatedness According to the United States‟ expert, Dr. David P. Jones, Ph.D., the State‟s use of the police sergeant written exam on a pass/fail basis and the State‟s determination and use of final scores to certify candidates from eligible lists in descending rank order have not been demonstrated, using professionally accepted validation standards, to be job-related or consistent
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with business necessity. See Declaration of Dr. David P. Jones, Ph.D. (“Jones Decl.”), attached as Exhibit 3, at ¶¶ 6-11. First, Dr. Jones found that the police sergeant written exam is not based upon a job analysis that meets professionally accepted standards. Id. ¶ 6. In its 1996 job analysis for police sergeant, upon which New Jersey relied when developing the written exams challenged here, the State did not conduct any review of data it received from questionnaires completed by incumbents regarding the content of the police sergeant position. Id. ¶ 6(a)-(b). Nor did the analysis evaluate whether the incumbents who completed the job analysis questionnaires used to develop the police sergeant written exam were actually representative of the then-incumbent police sergeants in local jurisdictions. Id. ¶ 6(b). The job analysis also did not include any reliability measurement or analysis regarding the degree of agreement among incumbents‟ ratings as to which knowledges, skills, and abilities (“KSAs”) were required in order to perform each task effectively. Id. ¶ 6(c). In addition, many of KSAs identified in the job analysis could not be tested, as they were either too general or too vague. Id. ¶ 6(d). Other KSAs were simply duplicative. Id.
Second, Dr. Jones concluded that the State is unable to establish that it used reasonable competence in developing the police sergeant written exam. Id. ¶ 7. The decision of the State to pursue a written exam resulted in the elimination of important KSAs because they were considered “not testable.” Id. ¶ 7(b). The State, therefore, limited the coverage of the police sergeant written exam to those KSAs that could be tested by such an exam. Id. Furthermore, the State did not develop adequate test plans, which would have indicated exactly which KSAs and tasks were to be tested and how many questions would test each KSA or task. Id. ¶ 7(c). Failure to devise such a test plan means that the State did not demonstrate that the written exam is representative of the full range of tasks and KSAs that incumbents deemed important. Id.
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Third and fourth, Dr. Jones concluded that the State cannot demonstrate that the content of the police sergeant written exam is either related to or representative of the content of the police sergeant position. Id. ¶ 8. On the issue of relatedness, the State has proffered no evidence indicating that the exam questions measure what they were purportedly intended to measure. Id. ¶ 8(c). The State engaged subject matter experts (“SMEs”) to link exam questions with the tasks and KSAs that the questions intended to test. Id. ¶ 8(a)-(b). The State did not, however, collect empirical data about the extent to which various SMEs linked each exam question to a specific duty of entry-level police sergeants or to any KSA that entry-level police sergeants must possess to perform their jobs. Id. ¶ 8(b). On the issue of representativeness, the State cannot establish that the content of the police sergeant written exam is representative of the job, and indeed, materials the State has provided demonstrate the contrary. Id. For example, of the 66 critical abilities identified through the State‟s 1996 job analysis, more than half are abilities that cannot be effectively measured on a written exam. Id. ¶ 8(f). Furthermore, in only one year did the State identify the specific work component and the particular KSA or task each question was intended to measure. Id. ¶ 8(e). As an example of the test content not being representative of the job, the State failed to include questions measuring 14 of the 27 tasks related to the “supervise patrol” component that, according to the job analysis, the exam was supposed to test. Id.
Finally, according to Dr. Jones, the State‟s pass/fail use and rank-order use do not distinguish meaningfully among those candidates who can better perform the job of police sergeant. Id. ¶ 9. There are several professionally recognized methods for selecting an appropriate cutoff score in the context of promotion exams. Id. ¶ 9(a). These methods assist in distinguishing among candidates who can better perform the job at issue. Id. The State did not, however, use any of these methods. Id. Instead, the State selected the cutoff score based on
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whether the results of the police sergeant written exam could avoid group-based disparate impact as defined by the 80% Rule.4 See Hill 30(b)(6) Dep., p. 241:15-21, attached as Exhibit 4. Nonetheless, as detailed above, the State did not eliminate the statistically significant disparate impact of the exam. In addition, Dr. Jones concluded that the State has provided no evidence to support rank-order use of the police sergeant written exam. Jones Decl., at ¶ 9(d). The ratings from incumbents in the 1996 job analysis questionnaire on whether possessing differing levels of KSAs correspond to differing levels of performance on the job are insufficient to support rankorder use.5 Id.
IV. OVERVIEW OF THE CONSENT DECREE A. Injunctive Relief
Under the Decree‟s terms, the State, in consultation with the United States, will develop and administer a new lawful procedure for selecting qualified candidates for promotion to the position of police sergeant in local jurisdictions. Decree, at ¶¶ 15, 77. The State will also cease using current eligible lists as part of its police sergeant selection procedure in ten local jurisdictions, where continued use of such lists may create an additional “shortfall” of African Americans or Hispanics who would have been promoted but for the disparate impact of the challenged exam. Id. ¶ 16.6
4 The 80% Rule is a guideline for assessing the practical impact of an employment practice alleged to have a statistically significant disparate impact on a protected group. 5 The United States also contends that alternative selection devices exist to select candidates for supervisory, public safety positions that would have served the State‟s legitimate needs and that have been demonstrated to have less adverse impact. Since the parties are proceeding under the theory that the challenged employment practices are not job related and consistent with business necessity, it is unnecessary to set forth these alternatives. 6 Dr. Siskin concluded that continued use of eligible lists in the ten local jurisdictions identified in Attachment D to the Decree will likely result in the creation of an additional appointment
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B. Individual Relief The State will also provide, where appropriate, individual relief in the form of back pay and/or priority promotions to qualified persons who, because of the employment practices at issue, were denied promotion to the rank of police sergeant. Id. ¶¶ 31, 60, 76.7 Relief will be granted only to those individuals determined to be actual victims of practices challenged by the United States.
1. Individuals Potentially Eligible For Relief An individual may be eligible for relief under the Decree if he or she is AfricanAmerican or Hispanic, sought promotion in one of the 43 local jurisdictions identified in Attachment A to the Decree, was never promoted, and either (i) between 2000 and 2009, failed a police sergeant written exam given by the State that resulted in an eligible list from which appointments were made or (ii) passed the exam between 2000 and 2008 given by the State but ranked below the lowest ranking candidate appointed from any eligible list.8 Id. ¶ 3. The Decree defines those eligible for relief as “Claimants.” Id.
shortfalls. Siskin Decl., at ¶¶ 11-13. The appointment shortfall is the expected number of African Americans or Hispanics who would have been promoted to police sergeant but for the State‟s uses of the challenged exam. Id. In all remaining jurisdictions with active eligible lists, Dr. Siskin concluded that continued use was unlikely to create additional shortfalls. Id. 7 The amount of back pay ($1,000,000.00) and the number of priority promotions (68) negotiated by the parties do not exceed what would be make-whole relief to victims of discrimination. Siskin Decl., at ¶¶ 10, 14-19, 25. 8 The 43 local jurisdictions from where individuals may be eligible for relief were selected because the United States‟ expert concluded that one or more promotions of African-Americans and/or Hispanics would have been made in those jurisdictions in the absence of the disparate impact resulting from New Jersey‟s pass/fail and rank-order use of the police sergeant written exam. Siskin Decl., at ¶ 10.
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2. Back Pay Under the terms of the Decree, the State will pay $1,000,000.00 in back pay, which will be divided into two settlement funds. Decree, at ¶ 28. The first settlement fund will be used to make back pay awards to African-American Claimants, and the second settlement fund will be used to make back pay awards to Hispanic Claimants. Id. ¶ 29. Claimants who are eligible for back pay will receive awards that do not exceed the amount of money they would have received had they been promoted based upon the challenged exam that they took. See Siskin Decl., at ¶ 23.
3. Priority Promotions The Decree obligates New Jersey to ensure that 68 priority promotions are made to 48 African-American and 20 Hispanics Claimants from 13 local jurisdictions identified in Attachment K to the Decree. Decree, at ¶ 61.9 Importantly, the Decree does not require the State to appoint anyone who is not qualified to be a police sergeant. All Claimants who receive priority promotions must first pass the new, lawful selection procedure developed by the State under the Decree. Id. ¶ 62. Upon passing the exam, any Claimant who earns a priority promotion will be entitled to limited retroactive seniority as of his/her “presumptive appointment
9 The selection of the 13 jurisdictions to which the State will certify Claimants for priority promotions, and the number of priority promotions in those jurisdictions, was based upon Dr. Siskin‟s conclusion that three or more promotions of African-Americans and/or Hispanics would have been made in each of those 13 jurisdictions absent the disparate impact resulting from New Jersey‟s pass/fail and rank-order use of the police sergeant written exam. Siskin Decl., at ¶ 10.
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date” for purposes of receiving seniority credits for future promotional opportunities, if applicable.10 Id. ¶ 76.
C. Fairness Hearings, Objections, And Individual Relief Claims Process 1. Initial Fairness Hearing
Pursuant to the terms of the Decree, the United States moves the Court to schedule two fairness hearings. Id. ¶¶ 19, 43. At the first hearing (the “Initial Fairness Hearing”), the Court will determine whether the terms of the Decree are lawful, fair, reasonable, adequate, and consistent with the public interest. Id. ¶ 19. Prior to the Initial Fairness Hearing, individuals whose interests may be affected by the Decree (including all known potential Claimants, the appointing authority in each local jurisdiction participating in New Jersey‟s civil service system, each union or association recognized as being authorized to represent police sergeants in each such local jurisdiction, and police sergeants in the local jurisdictions that participate in the State‟s civil service system) will be given notice of the Decree and an opportunity to file objections. Decree, at ¶¶ 21-23. At the Initial Fairness Hearing, the Court will consider and resolve any objections received. Assuming the Court concludes at the end of the Initial Fairness Hearing that the Decree is lawful, fair, reasonable, adequate, and consistent with the public interest, the parties will ask the Court to enter the Decree as a final Order. Id. ¶ 27.
2. Individual Relief Claims Process And Fairness Hearing On Individual Relief
Contained in the Decree is a process, to occur after the Court has finally entered the Decree, for persons who believe that they are entitled to individual relief to submit interest in relief forms to the United States. Id. ¶ 34. The United States will make individual relief
10 The “presumptive appointment date” is the estimated date when the Claimant would have been promoted but for the challenged exam that adversely affected the Claimant. Id. ¶ 9.
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determinations for all Claimants after considering any timely raised objections by New Jersey. Id. ¶¶ 37-41. Furthermore, the Decree provides for a second fairness hearing (the “Fairness Hearing on Individual Relief”) for the Court to approve or modify the individual relief determinations made by the United States, as well to review any timely made objections. Id. ¶ 49.
D. Continuing Jurisdiction And Duration Of The Decree Per the terms of the Decree, the Court will retain jurisdiction over this matter for the duration of the Decree. Decree, at ¶ 93. The Decree will expire, and the case will be dismissed without further order of the Court, on the latest of the following occurrences: (i) three years from the date the Decree is entered; (ii) complete fulfillment of the parties‟ obligations regarding the individual relief to be awarded under the Decree; or (iii) the State‟s administration of the second police sergeant exam, as contemplated by the Decree, and after the expiration of time allotted by the Decree for either the United States to make recommendations regarding the content or manner of use of the police sergeant exam or for a hearing on any objections. Id. ¶ 89. V. ARGUMENT
A. Standard Of Review “Courts have long recognized that cooperation and voluntary compliance are the preferred means of achieving Title VII‟s goals of ensuring equal employment opportunities and eliminating discriminatory practices.” United States v. New Jersey, Nos. CIV 88-5087 WGB, CIV 88-4080(MTB), CIV. 87-2331(HAA), 1995 WL 1943013, at *10 (D.N.J. March 14, 1995) (“U.S. v. NJ”) (citations omitted); see also Carson v. Am. Brands, Inc., 450 U.S. 79, 88 n.14 (1981) (“In enacting Title VII, Congress expressed a strong preference for encouraging voluntary settlement of employment discrimination claims.”); Alexander v. Gardner-Denver Co., 415 U.S.
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36, 44 (1974) (identifying Title VII‟s conciliation provisions as evidence that Congress wanted Title VII compliance to be voluntary). Congress placed an “extremely high premium…on voluntary settlements of Title VII suits.” United States v. City of Miami, 614 F.2d 1322, 1331 (5th Cir. 1980), modified per curiam, 664 F.2d 435 (5th Cir. 1981). “Accordingly, a district court should have a deferential attitude towards agreements reached by consent in Title VII suits.” U.S. v. NJ, 1995 WL 1943013, at *10 (citation omitted).
A court may properly enter a consent decree if “the „settlement is fair, adequate and reasonable.‟” Id. (citation omitted). Moreover, in a Title VII action, a consent decree that has been negotiated by the parties to the suit is presumptively valid. Id. at *11. Significantly, the presumption of validity can be “„overcome only if the decree contains provisions which are unreasonable, illegal, unconstitutional, or against public policy.‟” Id. (citations omitted).
When assessing whether a proposed consent decree is fair, adequate, and reasonable, the Third Circuit considers many factors, the relative importance and applicability of which depend upon the nature of the claims at issue, type of relief sought, and particular facts involved. Id. at *11-12 (citation omitted). Those factors may include:
(1) the complexity, expense and likely duration of the litigation...; (2) the reaction of the class to the settlement...; (3) the stage of the proceedings and the amount of discovery completed...; (4) the risks of establishing liability...; (5) the risks of establishing damages...; (6) the risks of maintaining the class action through the trial...; (7) the ability of the defendants to withstand a greater judgment; (8) the range of reasonableness of the settlement fund in light of the best possible recovery...; [and] (9) the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of litigation[.]
U.S. v. NJ, 1995 WL 1943013, at *11 (citing Girsh v. Jepson, 521 F.2d 153, 157 (3d Cir. 1975)). The above-enumerated factors may be properly distilled to one point, “the strength of
plaintiff‟s case on the merits balanced against the settlement offer.” U.S. v. NJ, 1995 WL
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1943013, at *12. Indeed, that “is generally regarded as the most important factor.” Id. When determining the strength of the plaintiff‟s case, “the Court need only evaluate the probable outcome of the litigation and is not required to weigh and decide each contention; further, the probable result at trial must be balanced against the probable costs, in both time and money, of continued litigation.” Id. (citing Bryan v. Pittsburgh Plate Glass Co., 494 F.2d 799, 801 (3d Cir. 1974)).11
B. The Consent Decree Is Lawful, Fair, Reasonable, Adequate, And Consistent With The Public Interest
As noted above, when deciding whether to enter a consent decree, a court must consider the strength of the plaintiff‟s case balanced against the settlement offer. U.S. v. NJ, 1995 WL 1943013, at *12. This balancing test is necessary before a court can conclude that the decree is fair, reasonable, and adequate. See id. Here, the United States is well-positioned to prevail on the merits and, if victorious, could obtain the relief afforded by the Decree and more.
1. The United States Is Likely To Prevail At Trial The United States filed suit pursuant to Section 707 of Title VII, 42 U.S.C. § 2000e-6, which authorizes the Attorney General to bring an action against a state or local government employer that has engaged in a pattern or practice of Title VII-proscribed discrimination. At issue here are the State‟s practices from 2000 to 2009 inclusive of: (1) using a pass/fail police sergeant written exam and (2) certifying police sergeant candidates in descending rank-order based on a combination of candidates‟ written exam scores and seniority credits. In its
11 In addition to balancing the factors set forth above, courts also consider whether there has been collusion in reaching the agreement, competent counsel‟s opinion regarding the decree, and the governmental status of the parties. U.S. v. NJ, 1995 WL 1943013, at *1. Here, because the United States is the plaintiff, these considerations all weight in favor of entry of the Decree.
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Complaint, the United States alleges that New Jersey‟s use of the challenged practices has had an unlawful disparate impact upon African-American and Hispanic candidates.
The disparate impact theory requires the removal of “employment procedures or testing mechanisms that operate as „built-in headwinds‟ for [protected] groups and are unrelated to measuring job capability.” Griggs v. Duke Power Co., 401 U.S. 424, 432 (1971).12 Employers may use written exams as a promotion selection tool without violating Title VII. See id. at 436 (“Nothing in the Act precludes the use of testing or measuring procedures; obviously they are useful.”). However, if such a tool yields a disparate impact based on the race and/or national origin of promotional candidates, then Title VII prohibits its use, unless the employer proves that the test is “job-related for the position in question and consistent with business necessity.” 42 U.S.C. § 2000e-2(k)(1)(A)(i); see also Griggs, 401 U.S. at 436. Furthermore, even if an employer can demonstrate validity, Title VII will not permit the employer to use the offending exam if there is an alternative employment practice with less disparate impact that will meet the employer‟s needs. See 42 U.S.C. § 2000e-2(k)(1)(A)(ii).
a. The Employment Practices Challenged By The United States Resulted In A Disparate Impact Upon African-American And Hispanic Candidates
To establish a prima facie case of disparate impact under Title VII, the plaintiff must identify a specific employment practice and prove by a preponderance of the evidence that the practice has had a disparate impact upon a protected group. 42 U.S.C. § 2000e-2(k)(1)(A)(i); see Bazemore v. Friday, 478 U.S. 385, 400-01 (1986); see also Newark Branch, NAACP v. City of Bayonne, 134 F.3d 113, 121 (3d Cir. 1998). Generally, plaintiffs rely on statistical evidence to
12 This theory was first articulated in Griggs, 401 U.S. at 432, by the United States Supreme Court. Congress later codified the disparate impact theory of discrimination in the 1991 Civil Rights Act, which amended Title VII.
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show disparate impact. See Newark Branch, NAACP v. Town of Harrison, 940 F.2d 792, 798 (3d Cir. 1991). Therefore, a plaintiff can demonstrate disparate impact by establishing that relevant statistical analysis reveals a significant disparity. Id. (citing Dothard v. Rawlinson, 433 U.S. 321, 329 (1977)). Typically, statisticians, testing experts, and social scientists consider a disparity to be “statistically significant” if the probability of the disparity occurring randomly is 5% or less, which is equivalent to a difference of approximately 1.96 units of standard deviation. See Stagi v. Nat’l R.R. Passenger Corp., 391 Fed. App‟x 133, 137-38 (3d Cir. 2010) (stating general rule that difference greater than two or three units of standard deviation is sufficient to rule out the possibility that the disparity occurred at random).13 As a result, courts typically accept, as sufficient to establish a prima facie case of disparate impact, disparities equivalent to more than two units of standard deviation. See Hazelwood Sch. Dist. v. United States, 433 U.S. 299, 308 n.14 (1977).
Based on information gathered and generated during both its pre-suit investigation and discovery, including the parties‟ respective expert reports, the United States can demonstrate that the challenged employment practices at issue here – the use of a pass/fail exam as a barrier to promotion and the certification of police sergeant candidates in descending rank-order– have had a disparate impact upon African-American and Hispanic candidates for promotion to police sergeant.
First, African-American and Hispanic candidates were significantly less likely to pass the written exam at the cutoff scores used by the State. Analysis of test administration data from
13 See also Waisome v. Port Auth., 948 F.2d 1370, 1376 (2d Cir. 1991) (“Social scientists consider a finding of two standard deviations significant, meaning there is about one chance in 20 that the explanation for a deviation could be random and the deviation must be accounted for by some factor other than chance.”) (citing Ottaviani v. State Univ. of N.Y., 875 F.2d 365, 371 (2d Cir. 1989)).
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2000 to 2009 inclusive indicates that the disparity between the respective pass rates of AfricanAmericans and whites equates to 17.33 units of standard deviation, see supra Sec. III.A, which far exceeds the threshold of two to three units of standard deviation that courts usually deem sufficient to establish a prima facie case of disparate impact. Similarly, the differences between the respective written exam pass rates of Hispanics and whites during the 2000-2009 time period are statistically significant, with the disparity between the Hispanic pass rate and the white pass rate equal to 12.88 units of standard deviation.14 See supra Sec. III.A.
Second, because African Americans and Hispanics, on average, scored lower on the police sergeant written exam than white candidates, those African Americans and Hispanics who passed the exam tended to receive lower final scores, which caused them to be ranked lower on eligible lists, which in turn made them less likely than whites to be certified and promoted. Id. Analysis of test administration data from 2000 to 2008 inclusive shows that African Americans were statistically significantly less likely to be ranked high enough to be considered for promotion than their white counterparts, equivalent to 7.77 units of standard deviation. Id. Similarly, for Hispanics, analysis of test administration data from 2000 to 2008 inclusive shows that Hispanics were statistically significantly less likely to be promoted than white candidates, equivalent to 4.66 units of standard deviation. Id.15
14 Analysis of test administration data by each year separately also indicates statistically significant disparities between the pass rates of African-American and white candidates from 2000 to 2009 and between the pass rates of Hispanic and white candidates from 2001 to 2009, that are sufficient to establish a prima facie case. Siskin Decl., at ¶¶ 5-6. 15 Analysis of appointment data controlled by year also indicates statistically significant disparities in rank between African-American and white candidates from 2000 to 2009 and between Hispanic and white candidates from 2001 to 2008 inclusive, that are sufficient to establish a prima facie case. Siskin Decl., at ¶¶ 7-8.
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In terms of real-world effects of these disparities, absent the State‟s pass/fail and rank order use of the police sergeant written exam, an estimated 75 African Americans and 30 Hispanics would have been promoted to police sergeant in 43 jurisdictions throughout New Jersey. See supra Sec. III.A. In sum, the United States would be able to satisfy its burden of establishing a prima facie case of disparate impact.
b. There Is Insufficient Evidence That The Challenged Practices Are Job-Related And Consistent With Business Necessity
Once the United States establishes a prima facie case, the State will be liable for violating Title VII unless it proves that the challenged practices are “job-related for the position in question and consistent with business necessity.” 42 U.S.C. § 2000e-2(k)(1)(A)(i); see Vulcan Pioneers, Inc. v. N.J. Dep’t of Civil Serv., 625 F. Supp. 527, 545 (D.N.J. 1985) (“Vulcan I”); see also Albemarle Paper Co. v. Moody, 422 U.S. 405, 431 (1975) (“[D]iscriminatory tests are impermissible unless shown, by professionally acceptable methods, to be „predictive of or significantly correlated with important elements of work behavior which comprise or are relevant to the job.‟”) (quoting EEOC‟s Uniform Guidelines on Employee Selection Procedures (“Uniform Guidelines”), 29 C.F.R. § 1607.4(C)); El v. Se. Pa. Trans. Auth., 479 F.3d 232, 239 (3d Cir. 2007) (“[A] discriminatory employment test[] must „bear a demonstrable relationship to successful performance of the jobs for which it was used.‟”) (citing Griggs, 401 U.S. at 431). Importantly, it is the State‟s burden to prove validity; the United States does not carry the burden of demonstrating that the challenged employment practices lack validity. As discussed below, the materials the State produced to the United States during its pre-suit investigation and in connection with discovery, including a report from the State‟s expert on job-relatedness, indicate that the State is unable to show that the police sergeant written exam is job-related (in other words, “valid”) or consistent with business necessity.
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Of the three types of validity an employer may rely upon to satisfy its burden regarding the job-relatedness of a written promotional exam, New Jersey has asserted just one – content validity. See generally Uniform Guidelines 29 C.F.R. § 1607.14 (identifying three types of validation). “An examination has content validity if the content of the examination matches the content of the job.” Vulcan Soc’y of New York City Fire Dep’t v. Civil Serv. Comm’n, 360 F. Supp. 1265, 1274 (S.D.N.Y. 1973), aff’d 490 F.2d 387 (2d Cir. 1973); see also Vulcan I, 625 F. Supp. at 545-46 (content validity is established by demonstrating that the content of a test closely approximates the tasks performed on the job). To establish that an exam is content valid, an employer must prove, inter alia, that:
(1) the test-makers must have conducted a suitable job analysis, … (2) they must have used reasonable competence in constructing the test itself[,] …. (3) [] the content of the test must be related to the content of the job…, (4) the content of the test must be representative of the content of the job[,]… and the test must be used with (5) a scoring system that usefully selects from among the applicants those who can better perform the job. Id. at 546 (citing Guardians Ass’n of New York City Police Dep’t v. Civil Serv. Comm’n, 630 F.2d 79, 91 (2d Cir. 1980)). Based upon the above-enumerated factors, and as explained by the United States‟ validity expert Dr. David P. Jones, Ph.D., the State cannot demonstrate that the police sergeant written exam is content valid. First, the State cannot show that its job analysis meets professionally accepted standards. See supra Sec. III.B. Second, the State is unable to establish that it used reasonable competence in developing the police sergeant written exam. Id. Third and fourth, the State cannot demonstrate that the content of the police sergeant written exam is either related to or representative of the content of the police sergeant position. Id. Finally, the State is unable to show that its two methods of use of the police sergeant written exam, the pass/fail use and rank-
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order use, distinguish meaningfully among those candidates who can better perform the job of police sergeant.
Regarding the last point, an employer must establish, for instance, that the cutoff score used to make pass/fail decisions corresponds to “the minimum qualifications necessary for successful performance of the job in question.” El, 479 F.3d at 242. Pass scores should not be arbitrary; they should reflect the minimum performance necessary to successfully perform the job. See id.; see also NAACP v. N. Hudson Reg’l Fire & Rescue, 742 F. Supp. 2d 501, 522 (D.N.J. 2010) (stating that the job requirement must not be “„an artificial, arbitrary, or unnecessary barrier‟”) (citing Connecticut v. Teal, 457 U.S. 440, 451 (1982)). There are several professionally recognized methods available for selecting an appropriate cutoff score in order to identify the more qualified candidates in a pool. The State did not use any of these methods. In fact, the State‟s only criterion for selecting cutoff scores was its desire to avoid results that produced ethnic group-based disparate impact as defined by the 80% Rule. Thus, the State cannot contend that the cutoff score for the written exam bears any relationship to a candidate‟s qualifications to perform the job of police sergeant.
Additionally, where, as here, the rank-order processing of candidates based on their exam scores results in disparate impact, to prove job-relatedness and business necessity, an employer must show that a candidate with a higher score would likely perform the job better than a candidate with a lower score. See El, 479 F.3d at 239 (stating that “test results must predict or correlate with „important elements of work behavior‟”) (citing Albemarle, 422 U.S. at 431); see also Ensley Branch of NAACP v. Seibels, 616 F.2d 812, 822 (5th Cir. 1980); Guardians, 630 F.2d at 103; Bradley v. City of Lynn, 443 F. Supp. 2d 145, 171-72 (D. Mass. 2006). See generally Uniform Guidelines, 29 C.F.R. § 1607.5(G). The State has provided no evidence to
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support the proposition that its rank-order use of the police sergeant written exam has that effect. The ratings from incumbents in the 1996 job analysis questionnaire on whether possessing differing levels of KSAs correspond to differing levels of performance on the job are insufficient to support rank-order use. See supra Sec. III.B. Thus, it is unknown to what extent increased possession of critical KSAs might result in better performance in the position of police sergeant.
2. The Relief Sought Is Appropriate District courts have “not merely the power but the duty to render a decree that will so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future.” Albemarle, 422 U.S. at 418 (citation omitted).16 Here, the relief provided in the Consent Decree is lawful, fair, adequate, and reasonable because: (i) the prospective injunctive relief ensures that the State will use a police sergeant selection procedure that complies with Title VII and does not unnecessarily exclude qualified African Americans and Hispanics from the position of police sergeant; (ii) it provides individual relief to African Americans and Hispanics who have actually been harmed by the challenged employment practices; and (iii) individuals whose interests may be affected by implementation of the Decree are afforded an opportunity to object and to have their objections resolved by this Court.
a. The Prospective Injunctive Relief Should Be Awarded When an employer has engaged in a pattern or practice of discrimination in violation of Title VII, an award of prospective injunctive relief is justified without any further showing. See Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 361 (1977). Courts also have routinely
16 See Mardell v. Harlesville Life Ins. Co., 65 F.3d 1072, 1074 (3d Cir. 1995) (“One purpose of Title VII is „to make persons whole for injuries suffered on account of unlawful employment discrimination.””) (citing Albemarle, 422 U.S. at 418); United States v. New Jersey, 658 F. Supp. 9, 12 (D.N.J. 1986), aff’d sub nom. Vulcan Pioneers, Inc. v. N.J. Dep’t of Civil Serv., 832 F.2d 811 (3d Cir. 1987) (“Vulcan II”); see also U.S. v. NJ, 1995 WL 1943013, at *15.
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entered consent decrees that afford prospective injunctive relief. See, e.g., Vulcan II, 832 F.2d at 816. Appropriate prospective injunctive relief may include a bar against future discrimination, an order to maintain records and generate compliance reports, or any other directive that is “necessary to ensure the full enjoyment of the rights” Title VII protects. See Teamsters, 431 U.S. at 361. Such relief may also include prohibiting the use of an unlawful exam or other invalid selection criteria, restricting the ability to promote from eligible lists shaped by unlawful selection practices, and ordering the adoption of new, lawful selection procedures. See, e.g., Vulcan II, 832 F.2d at 816 (affirming, in matter involving enforcement of consent decree, district court‟s prohibitions on using discriminatory exams and making promotions from lists generated by unlawful exams).
Consistent with these parameters, the Decree in this case requires the State to develop a new, lawful procedure for screening and selecting candidates for promotion to the rank of police sergeant. See supra Sec. IV. The Decree also enjoins the State from using existing eligible lists for certifying candidates to the position of police sergeant – but only in ten jurisdictions where continued use of such lists may result in additional African-American and Hispanic victims. Id. Thus, the injunctive provisions of the Decree are lawful, fair, reasonable, and consistent with the public interest.
b. The Individual Relief Should Be Awarded One of the central purposes of Title VII is to make whole persons who have been harmed by employment practices that violate the statute. In enacting Title VII, “Congress took care to arm the courts with full equitable powers” so that the courts may fashion relief for identifiable individuals harmed by unlawful employment practices. Albemarle, 422 U.S. at 418. To exercise those equitable powers, a court may “order such affirmative action as may be appropriate, which
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may include, but is not limited to, reinstatement or hiring of employees, with or without backpay . . . or any other equitable relief as the court deems appropriate.” Franks v. Bowman Transp. Co., 424 U.S. 747, 763 (1976) (quoting Section 706(g) of Title VII, 42 U.S.C. § 2000e-5(g)); see also Booker v. Taylor Milk Co., 64 F.3d 860, 864 (3d Cir. 1995) (indicating that Title VII authorizes back pay); U.S. v. NJ, 1995 WL 1943013, at *20-22 (noting that circuit courts have repeatedly upheld lower court decisions granting seniority relief as a remedy in Title VII cases and that Title VII authorizes the creation of priority eligibility lists from which priority promotions will be made). In Title VII pattern or practice cases, “[t]he injured party is to be placed, as near as may be, in the situation he would have occupied if the wrong had not been committed.” Albemarle, 422 U.S. at 418-19 (citation omitted).
Given the above, courts have routinely entered consent decrees that confer the kinds of individual relief included here. See, e.g., U.S. v. NJ, 1995 WL 1943013, at *20-22 (finding as lawful consent decree that affords retroactive seniority and priority promotion relief). Under the Decree, the individual remedial relief provided – back pay, priority promotions, and retroactive seniority in the form of seniority credits for future promotions to those receiving priority promotions – is appropriate in light of the broad power afforded the courts to grant relief to individuals harmed by employment practices that violate Title VII. Importantly, individual remedial relief under the Decree is only available to those who were adversely affected by the practices the United States challenged – namely, African Americans and Hispanics who were never appointed as police sergeants and who (i) took and failed the police sergeant written exam or (ii) passed the exam but ranked too low to be selected for promotion. See supra Sec. IV.A.
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In terms of back pay, the settlement fund of one million dollars ($1,000,000.00) does not exceed the back pay amount the United States‟ expert calculated would be due to victims should the United States prevail on its claims. See supra Sec. IV n.4 and IV.B.2.
The Decree also is narrowly tailored with respect to priority promotions. Indeed, the number of priority promotions required by the Decree (68 in 13 jurisdictions) is lower than the estimated promotions that would have been made absent the unlawful impact of the challenged employment practices (105 in 43 jurisdictions). Compare supra Sec.III.A with Sec. IV.A.3. Further, making priority promotions in 13 jurisdictions will have no effect on the other approximately 169 local jurisdictions that participate in the State‟s civil service system. Finally, only Claimants who demonstrate that they are presently qualified for the position of police sergeant will be eligible for priority promotions. See supra Sec.IV.B.3.
The Decree also provides retroactive seniority credits for purposes of future promotional opportunities to Claimants who receive priority promotions.17 Id. Awarding retroactive seniority is necessary to attempt, to the extent possible, to put qualified individuals – who, but for the challenged practices, would have been promoted earlier – in the positions they would have occupied in the absence of the alleged discrimination. Such retroactive seniority relief ordinarily is necessary to achieve Title VII‟s “make whole” objective. See Franks, 424 U.S. at 764-65; U.S. v. NJ, 1995 WL 1943013, at *19. In fact, courts have found that there is a presumption in favor of affording such seniority relief when the parties reach a voluntary settlement. See Franks, 424 U.S. at 780, n.41; see also Moore v. City of San Jose, 615 F.2d 1265, 1272 (9th Cir. 1980); Bockman v. Lucky Stores, Inc., No. CIV S 83-039 RAR, 1986 WL 10821, at *4 (E.D.Cal. Aug. 11, 1986), aff’d, 826 F.2d 1069 (9th Cir. 1987). 17 The retroactive seniority awarded under the Decree is limited to seniority points and does not satisfy any time-in-grade requirements.
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c. To Avoid Future Challenges To The Relief Awarded By The Court, The Decree Provides For Fairness Hearings Prior To Entry Of A Final Relief Order
To safeguard against later challenges, the Decree provides for two fairness hearings – an Initial Fairness Hearing and a Fairness Hearing on Individual Relief. Before the Initial Fairness Hearing, written notice of the Decree and the date of the Initial Fairness Hearing, as well as instructions for submitting objections, will be provided to persons whose interests may be affected, including labor organizations that represent police officers in New Jersey, incumbent police officers, and incumbent police sergeants. See supra Sec.IV.C.1. Notice will be made in several ways including (i) by mail; (ii) by way of conspicuous postings on the State‟s websites; and (iii) in various newspapers that are readily accessible to potential claimants and other interested parties. At the Initial Fairness Hearing, the Court will determine, after considering timely filed objections, whether the terms of the Decree are lawful, fair, reasonable, and adequate.
Assuming the Decree is finally entered by the Court, a claims process will follow, after which Claimants will be given a second opportunity to object, this time to their awards of individual relief. During the second fairness hearing, the Court can evaluate whether the awards of individual relief are fair and equitable given the Claimant population and the total amount of relief available under the Decree. The Decree contemplates that the Court will, after considering timely filed objections, enter an order approving or modifying the proposed individual relief, as appropriate.
Importantly, the fairness hearings set forth in the Decree comport with 42 U.S.C. § 2000e-2(n)(1), which states, in relevant part that:
(1)(A) Notwithstanding any other provision of law, and except as provided in paragraph (2), an employment practice that
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implements and is within the scope of a litigated or consent judgment or order that resolves a claim of employment discrimination under the Constitution or Federal civil rights laws may not be challenged under the circumstances described in subparagraph (B).
(B) A practice described in subparagraph (A) may not be challenged in a claim under the Constitution or Federal civil rights laws--
(i) by a person who, prior to the entry of the judgment or order described in subparagraph (A), had--
(I) actual notice of the proposed judgment or order sufficient to apprise such person that such judgment or order might adversely affect the interests and legal rights of such person and that an opportunity was available to present objections to such judgment or order by a future date certain; and
(II) a reasonable opportunity to present objections to such judgment or order; or
(ii) by a person whose interests were adequately represented by another person who had previously challenged the judgment or order on the same legal grounds and with a similar factual situation, unless there has been an intervening change in law or fact.
42 U.S.C. § 2000e-2(n)(1). Thus, the hearings will protect the Decree from collateral attack,
including by alleviating any due process concerns, because interested parties will have notice of
the Decree and an opportunity to object. See generally Edwards v. City of Houston, 78 F.3d 983,
991 (5th Cir. 1996) (“Section 2000e-2(n) protects consent judgments from certain subsequent
collateral challenges by persons who, although not parties to the litigation that produced it, may
have interests adversely affected by the judgment.”); U.S. v. NJ, 1995 WL 1943013, at *23
(concluding that fairness hearing process consistent with 42 U.S.C. § 2000e-2(n)(1)(A) protected
the procedural due process rights of all individuals potentially affected by the consent decree).
C. The Ricci v. DeStefano Standard Is Easily Satisfied
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Although Ricci v. DeStefano, 557 U.S. __, 129 S. Ct. 2658 (2009) is not directly applicable to situations where an employer and the United States enter into a consent decree, the Ricci standard is easily satisfied here. In Ricci, the Supreme Court held that “race-based” action taken to avoid Title VII disparate impact liability may violate Title VII‟s prohibition against disparate treatment. Ricci, 129 S. Ct. at 2664. To avoid such an outcome, an employer must possess a “strong basis in evidence” to conclude that absent taking the race-based action, it would be liable for a Title VII disparate impact violation. Id.
In this case, the United States‟ extensive pre-suit investigation and the discovery that occurred (which involved the parties exchanging various expert reports and taking several depositions), along with the declarations of the United States‟ experts offered in support of this memorandum, demonstrate a strong basis in evidence to conclude: (1) there is a prima facie case of disparate impact discrimination, see supra Sec. III.A; and (2) the challenged exams and their use by the State are not job-related and consistent with business necessity, see supra Sec. III.B.18 Thus, the Ricci standard is easily met here. 19
VI. CONCLUSION For the above reasons, the United States respectfully requests that the Court enter the
accompanying proposed Order, which provisionally approves and enters the proposed Consent Decree and sets the time, date, and location of an initial fairness hearing. 18 There is also a strong basis in evidence to find that alternative selection devices exist to select candidates for supervisory, public safety positions that would have served the State‟s legitimate needs and that have been demonstrated to have less adverse impact. It is unnecessary to set forth this evidence, however, since the challenged exam lacks validity. 19 There is also a strong basis in evidence to find both that recipients of individual relief are actual discrimination victims, see supra. Sec.III, and that the Decree does not provide more than make-whole relief, i.e., it is limited to the relief necessary to remedy the alleged discrimination, See supra Sec. IV.
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Date: August 1, 2011

Respectfully submitted,
THOMAS E. PEREZ Assistant Attorney General LORETTA KING Deputy Assistant Attorney General DELORA L. KENNEBREW Chief
By: s/ Varda Hussain ESTHER G. LANDER Deputy Chief VARDA HUSSAIN VALERIE L. MEYER HILARY J. FUNK ELIZABETH B. BANASZAK TREVOR S. BLAKE II Trial Attorneys United States Department of Justice Civil Rights Division Employment Litigation Section 950 Pennsylvania Avenue, N.W. Patrick Henry Building, Room 4908 Washington, D.C. 20530 (202) 305-4267
United States Attorney‟s Office Peter Rodino Federal Building 970 Broad Street, Suite 700 Newark, New Jersey 07102 (973) 645-2700
Counsel for Plaintiff United States

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THOMAS E. PEREZ Assistant Attorney General LORETTA KING Deputy Assistant Attorney General DELORA L. KENNEBREW Chief ESTHER G. LANDER Deputy Chief VARDA HUSSAIN VALERIE L. MEYER HILARY J. FUNK ELIZABETH B. BANASZAK TREVOR S. BLAKE II Trial Attorneys United States Department of Justice Civil Rights Division Employment Litigation Section 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530 Telephone: (202) 305-4267
Counsel for Plaintiff United States

UNITED STATES OF AMERICA, Plaintiff,
v. STATE OF NEW JERSEY AND NEW JERSEY CIVIL SERVICE COMMISSION,
Defendants.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
VICINAGE OF NEWARK
Civil Action No. 2:10-cv-00091-KSH-MAS
Hon. Katharine S. Hayden

[PROPOSED] ORDER ON JOINT MOTION FOR PROVISIONAL ENTRY OF CONSENT DECREE AND SCHEDULING OF FAIRNESS HEARING
Upon consideration of Plaintiff United States of America’s and Defendants State of New
Jersey’s and New Jersey Civil Service Commission’s (collectively, the “State”) Joint Motion for
Provisional Entry of Consent Decree and Scheduling of Fairness Hearing (“Motion”), the

Case 2:10-cv-00091-KSH-CLW Document 38-7 Filed 08/01/11 Page 2 of 2 PageID: 399

proposed Consent Decree (“Decree”), the United States’ Memorandum of Law in support of the Joint Motion, and all supporting attachments to the foregoing items,
It is hereby ORDERED that the Motion is GRANTED; and it is FURTHER ORDERED that an Initial Fairness Hearing will be held at: __:____ a.m./p.m. at Martin Luther King Building & U.S. Courthouse, 50 Walnut Street, Courtroom PO 05, Newark, New Jersey 07101; and it is FURTHER ORDERED that in accordance with the schedule set forth in the Decree, 1. The State will mail and publish notice of the Initial Fairness Hearing and forms for
objections in accordance with the terms of the Decree at least 75 days before the Initial Fairness Hearing on _________________________. 2. The deadline for mailing any objections to the United States regarding the terms of the Decree will be at least 45 days prior to the Initial Fairness Hearing on __________________________. 3. The deadline for the United States to provide all copies of objections timely received to the State will be at least 30 days prior to the Initial Fairness Hearing on __________________________. 4. The deadline for the United States to file all objections with the Court and for the parties to file with the Court their responses to the objections will be 10 days prior to the Initial Fairness Hearing on _________________________.

DATED:_______________ ___, 2011

___________________________________ KATHARINE S. HAYDEN UNITED STATES DISTRICT JUDGE
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

2

 
 NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

UNITED STATES OF AMERICA, Plaintiff,
v.

Civil No.: 10-0091 (KSH) (CLW)

STATE OF NEW JERSEY and NEW JERSEY CIVIL SERVICE COMMISSION,
Defendants.

Opinion

Katharine S. Hayden, U.S.D.J. I. Introduction
The United States Department of Justice (“DOJ”) sued the State of New Jersey (“New Jersey”) and the New Jersey Civil Service Commission (“NJCSC”) alleging that the Police Sergeant exam they administered and that guided their promotion selections violated Title VII of the Civil Rights Act (“Title VII”), 42 U.S.C. § 2000(e), because of a discriminatory impact on African-American and Hispanic candidates.1 (D.E. 1, “Compl.”) The parties reached a settlement and entered into a consent decree (D.E. 49), approved by the Court, that sets forth remedies for the benefit of individuals who took the discriminatory exam between 2000 and 2008, including priority promotions for those who passed a new exam. The decree accounted for the preference normally afforded individuals on Special Reemployment Lists (“SRLs”) who had been laid off or
1 The Court adopts defendants’ party designations and will refer to the plaintiff as the DOJ, and when referencing defendants, will primarily designate the NJCSC because the latter is responsible for developing and administering the Police Sergeant exam.

demoted due to budgetary reasons, by requiring jurisdictions with SRLs to alternate on a one-toone basis, when promoting candidates to Police Sergeant, between those who retook the exam and were on priority promotion lists and those on SRLs.
The DOJ now brings this motion to modify paragraph 67 of the consent decree arguing that in certain jurisdictions, alternating on a one-to-one basis between the two lists may afford some priority promotion candidates greater than make-whole relief because they would receive a promotion before individuals on an SRL who have earlier actual appointment dates. As set forth below, the motion will be denied. II. Background
To understand the reasoning behind the motion, a review of the lawsuit underlying it is required. On June 12, 2012, this Court entered an order approving the consent decree between the DOJ and NJCSC. (D.E. 72.) The consent decree resolved claims brought by the DOJ in its complaint filed on January 1, 2010 under Title VII, claiming that the NJCSC’s methods for testing and promoting candidates to the rank of Police Sergeant between 2000 and 2008 had a disparate impact on African-American and Hispanic candidates. (Compl., ¶¶ 1, 24, 25.)
A. The 2000 to 2008 Examination and Promotion Process The NJCSC oversees “the selection procedures for promotion to the rank of Police Sergeant” that are used “by hundreds of New Jersey cities and counties that participate in the New Jersey Civil Service system.” (Id. ¶ 8.) These procedures included a multiple-choice examination that the NJCSC administers and scores. (Id. ¶ 9.) The exam results are used in “establishing Police Sergeant eligibility lists and certifying Police Sergeant candidates to” local jurisdictions participating in the civil service system. (Id.) The NJCSC sets the “minimum qualifications for admission to the examination” and determines its “pass/fail cutoff score,” from which the

participating jurisdictions may not deviate. (Id. ¶¶ 9, 10.) Police officers seeking a promotion to
Police Sergeant within those jurisdictions must take and pass the multiple-choice examination in
order to be considered for promotion. (Id. ¶ 10.)
Individuals who pass the examination and satisfy the other qualifications established by
the NJCSC are placed on Police Sergeant eligibility lists by jurisdiction. (Id. ¶ 11.) The lists rank
the candidates in descending ordered based on their examination scores and seniority credits,
which are weighted 80% and 20%, respectively. (Id.) Local jurisdictions may only promote
candidates from a certification list developed by the NJCSC at their request. (Id. ¶ 12.)
Certification lists are created pursuant to the “Rule of Three” found in N.J.S.A. 11A:4-8 (id.),
which provides, in relevant part, that:
The commission shall certify the three eligibles who have received the highest ranking on an open competitive or promotional list against the first provisional or vacancy. For each additional provisional or vacancy against whom a certification is issued at that time, the commission shall certify the next ranked eligible. If more than one eligible has the same score, the tie shall not be broken and they shall have the same rank. If three or more eligibles can be certified as the result of the ranking without resorting to all three highest scores, only those eligibles shall be so certified.
N.J.S.A. 11A:4-8.
The examination administered by the NJCSC from 2000 to 2008 resulted in passing scores
for 89% of white candidates, compared to the 73% of African-American candidates and the 77%
of Hispanic candidates who passed. (Compl., ¶¶ 14, 16.) The DOJ alleged that African Americans
and Hispanics “were under-represented in the higher score ranges and over-represented in the
lower score ranges.” (Id. ¶¶ 19, 21.) The combination of these factors led to 20% of African-
American and 22% of Hispanic candidates being certified from the eligibility lists in contrast to
the 35% of white candidates certified, and from those certified, 18% of white candidates were
promoted compared with 9% of African-American and 13% of Hispanic candidates. (Id. ¶ 23.)

The DOJ found these discrepancies to be statistically significant such that it concluded that the “pass/fail use of the NJCSC Police Sergeant written examination” had a disparate impact on African-American and Hispanic candidates and that the pass/fail use of the examination was not “job related for the Police Sergeant position [nor] consistent with business necessity.” (Id. ¶¶ 2426.) It therefore claimed that the NJCSC committed unlawful discrimination in violation of Section 707 of Title VII, 24 U.S.C. § 2000e-6. (Id. ¶¶ 27, 28.)
B. The Consent Decree The DOJ and the NJCSC, after protracted negotiations, settled the action in a consent decree that recited certain facts as the predicate for the relief provided in it. Specifically, “[f]rom 2000 to 2009, African-American and Hispanic candidates passed the police exam at a lower rate than white candidates, and the disparity in pass rates is statistically significant”; “[f]rom 2000 to 2008, African-American and Hispanic candidates ranked lower on the eligible lists than white candidates, and the disparity in ranks is statistically significant”; the disparities in pass rates and rankings were sufficient to establish a prima facie case under Title VII; and at least 48 AfricanAmerican and 20 Hispanic candidates would have received promotions during that time period “absent the disparate impact resulting from the [NJCSC’s] pass/fail use of the police sergeant written exam and from the [NJCSC’s] determination and use of final scores to certify candidates in descending rank order.” (D.E. 49, “Consent Decree” at 2-3.) The consent decree’s goals include the development and use of a new, lawful selection process and providing appropriate “promotions with retroactive seniority to qualified persons who were denied a promotion to police sergeant due to” the NJCSC’s employment practices. (Id. ¶ 12(b), (c).)

Under the consent decree, the DOJ provided a list of all claimants2 seeking and eligible for
priority promotions. (Id. ¶ 35.) Each claimant’s presumptive appointment date is based on:
the start date that would have been available to Claimant after he or she first:
a. between 2000 and 2009, failed a police sergeant written exam where appointments from the eligible list resulted in a shortfall of his or her race; or
b. between 2000 and 2008, passed a police sergeant written exam where appointments from the eligible list resulted in a shortfall of his or her race, but ranked below the lowest-ranking candidate appointed from that list.
(Id. ¶ 9.) This formulation is “based upon the median appointment date for candidates on the
eligible list that would have included the claimant or from which the claimant would have been
appointed.” (Id.) The presumptive appointment date is used to calculate a claimant’s retroactive
seniority, which “refers to the seniority that [the NJCSC] will ensure claimants who are awarded
a priority promotion receive.” (Id. ¶ 10.) The retroactive seniority date only applies “to the
calculation of seniority points for purposes of promotion.” (Id.)
The consent decree requires the NJCSC to “certify eligible claimants for priority promotion
over all other eligible candidates until a minimum of, and no more than, 68 offers of priority
promotions have been made” to claimants who pass the new selection process. (Id. ¶¶ 60, 62.) All
2 The decree defines claimant as: any African-American or Hispanic person from those jurisdictions [in which candidates are eligible for individual relief] who has not been promoted to sergeant and who: a. between 2000 and 2009, failed a police sergeant written exam where appointments from the eligible list resulted in a shortfall of his or her race; or b. between 2000 and 2009, passed a police sergeant written exam where appointments from the eligible list resulted in a shortfall of his or her race, but ranked below the lowest-ranking candidate appointed from that eligible list.
(Id. ¶ 3.)

priority promotions are to comply with N.J.A.C. 4A:4-1 through 6-6.6, unless a provision conflicts with the decree, in which case, the decree controls. (Id. ¶ 24.) Thirteen jurisdictions identified in Attachment K to the consent decree (“K Jurisdictions”) were allocated priority promotions, including Trenton, where three African-American candidates were found to be eligible. (Id. ¶ 66; see also D.E. 49-11.) Per the consent decree, the NJCSC issues priority promotion lists composed of those claimants who passed the new exam and certifies them “over all other eligible candidates” in K Jurisdictions. (Id. ¶ 66.) This process continues until the satisfaction of the priority promotions allocated to K Jurisdictions, or the exhaustion of the group of claimants eligible for priority promotion, whichever last occurs. (Id.) Claimants appointed from the priority promotion lists receive “retroactive seniority that corresponds to the claimant’s presumptive appointment date.” (Id. ¶ 76.)
The process for priority promotions differs for K Jurisdictions that maintain SRLs (special re-employment lists), which are comprised of “employees laid off or demoted in lieu of layoff from permanent titles,” N.J.S.A. 11A:4-9, and are generally used to fill a vacancy ahead of other promotional lists. See N.J.A.C. 4A:8-2.3(b). Individuals are ranked on an SRL based on their “permanent title and seniority at the time of layoff.” N.J.A.C. 4A:8-2.3(c)(1). The consent decree harmonizes the preference enjoyed by SRLs by providing that the NJCSC “shall certify Claimants eligible for priority promotions on at least a one to one ratio with candidates on existing special reemployment lists for the next police sergeant positions.” (Consent Decree, ¶ 67.)

C. The DOJ’s Motion to Modify the Decree The DOJ wants to modify paragraph 67 of the consent decree because “[i]n Trenton, alternating between the SRL and the priority promotion list on a one to one basis would cause the relief provided by the Decree to exceed make-whole relief.” According to the argument advanced, if the claimants on Trenton’s priority promotion list had been appointed to Police Sergeant “on their presumptive appointment dates in the absence of discrimination some of the Claimants . . . would have been subject to seniority-based demotions and currently would be listed on” Trenton’s SRL. Accordingly, by alternating between the priority promotion list and SRL, a claimant may be appointed to Police Sergeant before an individual on the SRL, despite that claimant having a later presumptive appointment date than the individual’s actual appointment date. The DOJ asserts that to ensure that make-whole relief is not exceeded, once the first appointment from Trenton’s priority promotion list is made, up to five individuals on the SRL may have to be appointed to Police Sergeant before the third, and final, appointment from the priority promotion list is made. As a remedy, the DOJ proposes modifying paragraph 67 to add this exception: “no Claimant shall be appointed before an individual on a special reemployment list whose actual Police Sergeant appointment date is earlier than the Claimant’s presumptive appointment date.” The NJCSC opposes the DOJ’s motion for three reasons. First, it contends that application of the proposed modification to Trenton would be “contrary to both civil service law and the Consent Decree” by prohibiting the alternating between the priority promotion list and SRL. It claims that, due to “the result of the candidate’s [sic] test scores and actual or presumptive promotion dates,” the proposed modification requires them to appoint specific priority promotion candidates for the first and third Police Sergeant vacancies that occur in Trenton. The following

are the claimants on Trenton’s priority promotion list according to the declaration of Kenneth

Connolly, the NJCSC’s Director of the Division of Classification and Personnel Management.

(D.E. 94-1, “Connolly Dec.”)

Priority List Rank
1 2 3 4 5

Claimant Name
Candidate A3 Candidate B Candidate C Candidate D Candidate E

Presumptive Appointment Date May 13, 2004 April 3, 2009 April 3, 2009 May 13, 2004 April 3, 2009

Score
83.940 80.910 80.710 79.210 74.250

(Id. at 6.) Trenton’s SRL includes five individuals with actual appointment dates that are relevant

to the current motion.

SRL Position 1 2 3 4 5

JEC JR MFR CK JPW

Name

Actual Appointment Date May 30, 2007 May 30, 2007 May 30, 2007 May 30, 2007 May 30, 2007

(Id. at 5.)

The NJCSC claims that when the proposed modification and the Rule of Three operate

concurrently, Candidate A must be appointed to the first available Police Sergeant position. (Id. ¶

18.) The Rule of Three requires it to certify the top three scoring candidates, Candidates A, B, and

C, and while Trenton could normally select which candidate to appoint from among those three,

the modification would prevent it from doing so by limiting the decision to candidates with earlier

presumptive appointment dates than the actual appointment dates of individuals on Trenton’s SRL.

As a consequence, only Candidate A qualifies. (Id. ¶ 18.) The NJCSC asserts that similar

constraints apply in appointing a priority promotion candidate to the third available Police Sergeant

3 Aliases and initials are used to protect the identities of claimants and individuals on Trenton’s promotional lists.

position, after appointing the first ranked person on the SRL to the second Police Sergeant vacancy. (Id. ¶¶ 19-20.) The Rule of Three requires it to certify Candidates B, C, and D as the remaining three highest exam scorers, but per the Consent Decree, Trenton must appoint Candidate D, despite having the lowest score, because he or she is the only claimant with a presumptive appointment date before the actual appointment date of the person ranked second on Trenton’s SRL. (Id. ¶ 20.) Then, after appointing the remaining individuals on the SRL with actual appointment dates of May 30, 2007, the NJCSC alleges that it could then appoint one of the remaining three claimants, Candidate B, C, or E, to the final priority promotion position allocated to Trenton. The effect that the DOJ’s proposed modification would have on the order of Police Sergeant appointments is summarized in the chart below.

Order of Appointments with Proposed Modification

Rank on SRL or Priority
Promotion List

Candidate A

1-PP4

SRL Rank 1 Candidate D

1-SRL 4-PP

SRL Rank 2 SRL Rank 3 SRL Rank 4 SRL Rank 5 Candidate B or Candidate C or Candidate E

2-SRL 3-SRL 4-SRL 5-SRL 2-PP 3-PP 5-PP

List from Where Appointment is
Made
Priority Promotion SRL Priority Promotion SRL SRL SRL SRL Priority Promotion

Actual Appointment
Date or Presumptive Appointment
Date May 13, 2004
May 30, 2007 May 13, 2004
May 30, 2007 May 30, 2007 May 30, 2007 May 30, 2007 April 3, 2009 April 3, 2009 April 3, 2009

Score on Test if Priority
Promotion Candidate
83.940
N/A 79.201
N/A N/A N/A N/A 80.910 80.710 74.250

4 PP stands for priority promotion.

The second reason advanced by the NJCSC is that the proposed modification would result in passing over candidates with higher test scores on the priority promotion list. Third, the NJCSC asserts that the modification precludes it from using the Rule of Three because fewer than three candidates on the priority promotion list have presumptive appointment dates before the candidates’ actual appointment dates on the SRL who are entitled to the second and fourth Police Sergeant positions, and so it prevents it from certifying three candidates for the first and third available Police Sergeant positions. III. Discussion
A. Modification Under Fed. R. Civ. P. 60(b)(6) Parties entering into a consent decree “make a free, calculated and deliberate choice to submit to an agreed upon decree rather than seek a more favorable litigated judgment.” Democratic Nat’l Comm. v. Republican Nat’l Comm., 673 F.3d 192, 201 (3d Cir. 2012). It may be modified when, among other considerations, “applying it prospectively is no longer equitable.” Fed. R. Civ. P. 60(b)(5).5 Under Fed. R. Civ. P. 60(b)(5), the burden rests on the party seeking the modification to establish “that a significant change in circumstances warrants a revision of the decree.” Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S. 367, 384 (1992). If that party carries its burden, the court must then “consider whether the proposed modification is suitably tailored to the changed circumstance.” Id. at 383. The court “has broad equitable power to fashion a remedy while modifying a decree” or enforcing the decree if its goal is to remedy discrimination. Holland v. N.J. Dep’t of Corr., 246 F.3d 267, 282 (3d Cir. 2001).
5 Although not citing Fed. R. Civ. P. 60(b)(5) as the basis for the decree’s modification, the Court assumes that the DOJ intended to bring its motion under the Rule because its arguments assert that it would be inequitable to continue to enforce the decree as worded in Trenton.

The presence of significant changed circumstances must be shown by a preponderance of the evidence and can include: “(1) a significant change in factual conditions; (2) a significant change in law; (3) that ‘a decree proves to be unworkable because of unforeseen obstacles’; or (4) that ‘enforcement of the decree without modification would be detrimental to the public interest.’” Democratic Nat’l Comm., 673 F.3d at 202 (quoting Rufo, 502 U.S. at 384). Although, a court should not normally modify a decree where the moving party cites circumstances “that actually were anticipated at the time it entered into the decree.” Rufo, 502 U.S. at 385; see also Agostini v. Felton¸ 521 U.S. 203, 216-17 (1997) (refusing to modify a consent decree because the defendant anticipated additional costs would be incurred when the consent decree was entered). The party seeking to modify the decree in light of an anticipated change in circumstances must carry the “heavy burden” of convincing “a court that it agreed to the decree in good faith, made a reasonable effort to comply with the decree, and should be relieved of that undertaking under Rule 60(b).” Rufo, 502 U.S. at 385.
In this Circuit, a court should also “respond to the specific set of circumstances before it by considering factors unique to the conditions of the case,” Democratic Nat’l Comm., 673 F.3d at 202, which may consist of:
the circumstances leading to entry of the injunction and the nature of the conduct sought to be prevented; the length of time since entry of the injunction; whether the party subject to its terms has complied or attempted to comply in good faith with the injunction; and the likelihood that the conduct or conditions sought to be prevented will recur absent the injunction. Bldg. & Constr. Trades Council of Phila. & Vicinity v. N.L.R.B., 64 F.3d 880, 888 (3d Cir. 1995). The factors must be weighed, evaluating the hardship suffered by the party enjoined by the decree against the benefits derived from its maintenance, and “the court should also ‘determine whether the objective of the decree has been achieved.’” Democratic Nat’l Comm., 673 F.3d at 202

(quoting Bldg. & Constr. Trades Council, 64 F.3d at 888). Paramount in the court’s analysis remains whether unforeseen circumstances have made compliance “more onerous,” “have made the decree unworkable,” or “whether continued enforcement would be detrimental to the public interest.” Bldg. & Constr. Trades Council, 64 F.3d at 888.
B. The DOJ’s Alleged Change in Factual Circumstances The DOJ’s main premise for modifying the consent decree is that not doing so would afford some claimants more than make-whole relief. This looks too narrowly at the consequences the modification will have on SRL candidates and fails to consider the effects the modification will have on claimants. The modification’s consequences are twofold: first, it affords Candidates A and D greater than make-whole relief, and second, it diminishes the relief to Candidates B and C to less than make whole. Candidates A and D will receive greater than make-whole relief under the modification by virtue of being the only two among the claimants with presumptive appointment dates earlier than the SRL candidates’ actual appointment dates, which creates an automatic entitlement for Candidate A to the first available Police Sergeant position and for Candidate D to the third vacancy. The NJCSC may only certify Candidate A for the first position when the Rule of Three and modification operate concurrently because he or she is the only claimant who scored in the top three on the exam with a presumptive appointment date earlier than the SRL candidates’ actual appointment dates. The NJCSC is similarly constrained in certifying Candidate D for the third Police Sergeant position because, after Candidate A is appointed to the first position, Candidate D, who could then be certified as one of the three remaining highest exam scorers on the priority promotion list, is the only remaining claimant with a presumptive appointment date earlier than the May 30, 2007 actual appointment date of the four remaining highest ranked SRL

candidates. If the decree is applied without the modification, Candidates A and D would face competition for those positions because the NJCSC would be able to certify the other two highest scoring candidates, and Trenton could then promote one from among those three to Police Sergeant. Because Candidates A and D will automatically receive a promotion under the modified decree, they would receive more than make-whole relief.
At the same time, the modification diminishes Candidates B and C’s relief by precluding the NJCSC from certifying them for the first and third available Police Sergeant positions, despite their having scored second and third highest on the exam respectively. The NJCSC, when certifying candidates for the first and third positions, would normally be required to include Candidates B and C under the Rule of Three, see N.J.S.A. 11A:4-8, but because their presumptive appointment dates fall after the May 30, 2007 actual appointment date of the highest ranked candidates on Trenton’s SRL, they could not be promoted under the modified decree and would only be able to be considered for the third, and final, Police Sergeant position allocated to the claimants on Trenton’s priority promotion list. This constitutes less than make-whole relief because under the consent decree, Candidates B and C would have more opportunities to receive an appointment having scored second and third highest on the exam.
The NJCSC also contends that the Court should deny the DOJ’s motion to modify the consent decree because DOJ anticipated that there was a possibility that a claimant could be promoted to Police Sergeant before an SRL candidate with an earlier actual appointment date than the claimant’s presumptive appointment date.
Varda Hussain, a government attorney, stated at the fairness hearing that: On the off chance that a priority promotion candidate’s presumptive appointment date would have landed him or her on the special reemployment list, by virtue of the fact that he or she would have been demoted along with a colleague, in that case the United States would carefully review the set appointment date at a time the

promotion occurred to make sure that the presumptive appointment date is not higher than one would expect, given that there were demotions. The parties intended that no provision in this decree exceeded make-whole relief and if a scenario in which the relief may exceed to [sic] make-whole relief arises, the parties would bring this issue to the Court’s attention and propose a modification to the decree. (D.E. 69, “Mar. 12, 2012 Fairness Hearing Tr.,” 45-46.) The DOJ thus knew that in jurisdictions maintaining both an SRL and priority promotion list that, when alternating on a one-to-one basis, a claimant may come up for promotion before an individual on the SRL, even though the individual had an earlier actual appointment date than the claimant’s presumptive appointment. The DOJ argues that not until claimants passed the new exam, priority promotion lists were created, and the claimants’ presumptive appointment dates were compared could the present circumstances have been manifest. In short, the argument is that it was impossible at the time the consent decree was written “to determine whether changes to the Decree would be necessary or whether the issue would be moot.” But the record establishes that the DOJ foresaw the issue and could have included the modification language it argues for now. See United States v. Asarco Inc., 430 F.3d 972, 982-84 (9th Cir. 2005) (refusing to modify a consent decree because the defendant was aware that circumstances could change and could therefore have incorporated a provision in the decree addressing the factual possibility); United States v. Bishop Processing Co., 423 F.2d 469, 472 (4th Cir. 1970) (stating that the defendant had the opportunity to incorporate any terms in the consent decree to address foreseeable circumstances and could not later seek to revise the decree to include that language). The fact that the modification language might never have been needed is of no moment; it could have sat dormant without affecting the rest of the decree. The DOJ alternatively contends that whether or not these factual circumstances were anticipated is irrelevant because, at the fairness hearing, the NJCSC “assented that the Parties would seek modification of the Decree if necessary to ensure that a Claimant would not be

promoted before a candidate on an SRL” who had an earlier actual appointment date than the claimant’s presumptive employment date. When the DOJ forwarded this proposition at the fairness hearing, the representatives for the NJCSC remained silent. The Court will not take its silence as acceptance of any and all future modifications because, as the DOJ notes, “the Parties did not agree to the specific terms of such a modification” at the time, and the NJCSC may have agreed to modify the decree with different language than that proposed.
The DOJ also claims that it would be inequitable and detrimental to public interest to continue to allow the promotions to alternate on a one-to-one basis between Trenton’s SRL and priority promotion list because it would afford priority promotion candidates more than makewhole relief by allowing them to leap over individuals with an earlier actual promotion than their presumptive appointment date. The heart of the argument is that without the modification the decree upsets the preference normally afforded those with seniority on the SRLs.
One of Title VII’s purposes is to afford make-whole relief to persons suffering injuries caused by unlawful employment discrimination. Albermarle Paper Co. v. Moody, 422 U.S. 405, 418 (1975). The Act requires that victims of these discriminatory practices to “be, so far as possible, restored to a position where they would have been were it not for the unlawful discrimination.” Franks v. Bowman Transp. Co., Inc., 424 U.S. 747, 764 (1976); see also Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 372 (1977). That relief should not put the aggrieved “in a substantially better position then [sic] they would have occupied.” United States v. City of Miami, 195 F.3d 1292, 1301 (11th Cir. 1999); see also Dogherty v. Barry, 869 F.2d 605, 614-15 (D.C. Cir. 1989) (finding that the district court erred by granting two plaintiffs full compensation instead of a pro rata share when only one would have received a promotion).

But the fact that Title VII relief “diminishes nonminority expectations . . . should not prevent awards . . . to the victims of discrimination.” Ass’n Against Discrimination in Emp’t, Inc. v. City of Bridgeport, 647 F.2d 256, 287 (2d. Cir. 1981). For instance, seniority rights “may be modified by statutes furthering a strong public interest” such as Title VII, Franks, 424 U.S. at 778, and a court should not deny or alter discrimination victims’ relief “on the abstract basis of adverse impact upon interest of other employees but rather only on the basis of an unusual adverse impact arising from facts and circumstances that would not generally be found in Title VII cases.” Id. at 780 n. 41 (emphasis added). The importance of “eradicating racial discrimination” may require innocent individuals “to bear some of the burden of the remedy,” especially “[i]n cases involving valid hiring goals.” Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 280-81 (1986); see also Tangren v. Wackenhut Servs., Inc., 658 F.2d 705, 706 (9th Cir. 1981) (holding that seniority rights in a collective bargaining agreement can be altered to the detriment of employees, especially when done to ensure greater representation of minorities). Therefore, those individuals on the SRLs must bear some of the burden of remedying the discrimination and a delay in reappointment alone is not a sufficient reason to modify the decree.
The public’s interest in continuing to permit the NJCSC and the K Jurisdictions to exercise the discretion afforded by the Rule of Three must also be considered. “[C]onsiderations based on the allocation of powers within our federal system” requires “defer[ence] to local government administrators, who have the ‘primary responsibility for elucidating, assessing, and solving’ the problems of institutional reform.” Rufo, 502 U.S. at 392 (citation and internal quotation marks omitted) (quoting Brown v. Bd. of Educ., 349 U.S. 294, 299 (1955)). Removing all discretion in selecting which claimant to promote to the first and third Police Sergeant vacancies ignores the expertise that the NJCSC and the K Jurisdictions possess in deciding who is the most qualified.

See In re Foglio, 207 N.J. 38, 46 (2011) (citation and internal quotation marks omitted) (“[T]he Rule of Three does not stand as an immutable or total bar to the application of other important criteria by a government employer.”). Modifying the decree will nullify this discretion. The DOJ has failed to cite a detriment to the public interest sufficient to modify the decree that would overcome the public interest of eliminating discrimination and the deference that must be given to the NJCSC and K Jurisdictions as the entities carrying out the decree.6
The decree as originally approved, while not perfect, struck the appropriate balance between claimants’ interests in obtaining make-whole relief and the SRL candidates’ entitlement to a reappointment. It also accounted for the interests of the K Jurisdictions by allowing them to retain discretion in promoting the most qualified claimant to Police Sergeant from the group of three that the NJCSC certifies pursuant to the Rule of Three. The decree, absent the modification, may create a disadvantage for some individuals on Trenton’s SRL by delaying their reappointment, but such “innocent persons . . . may be called upon to bear some of the burden” in remedying racial discrimination under Title VII. Wygant, 476 U.S. at 280-81. The DOJ’s motion to modify the consent decree is denied.
6 The DOJ correctly notes that when a conflict arises between the consent decree and New Jersey statutes and regulations the consent decree controls because “consent decrees displace state law to the same extent as do judgments on the merits.” State of N.J. Dep’t of Envtl. Prot. v. Gloucester Envtl. Mgmt. Servs., Inc., Nos. 84-0152, 92-3860, 2005 WL 1129763, at *12 (D.N.J. May 11, 2005) (Simandle, J.) (quoting United States v. AT&T, 552 F. Supp. 131, 155 n.102 (D.D.C. 1982)) (internal quotation marks omitted). Nevertheless, the Court finds that equity demands that the DOJ’s modification be denied because, among other reasons, of the importance that the discretion embodied in the Rule of Three has on the Police Sergeant appointment process.

IV. Conclusion For the foregoing reasons, the DOJ’s motion to modify the consent decree is denied. An
appropriate order will be entered.

Dated: September 30, 2015

/s/ Katharine S. Hayden_____ Katharine S. Hayden, U.S.D.J.

 
 Case 2:10-cv-00091-KSH-CLW Document 122 Filed 06/30/17 Page 1 of 11 PageID: 4997
NOT FOR PUBLICATION UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

UNITED STATES OF AMERICA, Plaintiff,
v.

Civil No. 2: 10-0091 (KSH) (CLW)

STATE OF NEW JERSEY and NEW JERSEY CIVIL SERVICE COMMISSION,
Defendants.

Opinion

Katharine S. Hayden, U.S.D.J. The United States through the Department of Justice (DOJ) has asked this
Court to extend a consent decree reached with the State of New Jersey, and specifically the New Jersey Civil Service Commission. The focus of the DOJ's application is the statewide examination, more fully explained below, that is administered from time to time to police officers seeking to be promoted to the rank of sergeant ("police sergeant examination," "examination"). Back in 2010, the Civil Rights Division of the DOJ sued the Commission alleging that the process for promoting police officers to sergeant position had a disparate impact on AfricanAmerican and Hispanic candidates, in violation of Title VII of the Civil Rights Act of 1964 (section 707), 42 U.S.C. § 2000e-6. The parties finalized a consent decree in 2012 that put down detailed conditions and requirements for future examinations.

Case 2:10-cv-00091-KSH-CLW Document 122 Filed 06/30/17 Page 2 of 11 PageID: 4998

The decree also carefully structured the interplay of promoting already-eligible

candidates and future-eligible candidates, to achieve maximum fairness.

By its terms, the consent decree expired in September 2016, after the Commission,

with the involvement of the DOJ, had administered two police sergeant

examinations. Based on what both parties agree are certain unsatisfactory results of

the second administration of the exam, which was held in January 2016 and scored

in October 2016, the DOJ seeks to extend provisions of the consent decree that

authorize it to oversee the composition and administration of a third examination.

For the following reasons, the Court denies such relief.

I.

SERGEANT PROMOTION PROCESS AND DISPARATE IMPACT

The DOJ commenced this action in 2010 against the State of New Jersey and

the New Jersey Civil Service Commission (“the Commission”). After the parties

reached a settlement, the Court issued two opinions, first approving the terms of the

consent decree (D.E. 71) and later denying an application by the DOJ to change the

method of promoting priority candidates (D.E. 96).

New Jersey has enacted a well-defined method for promoting officers to the

rank of sergeant that is within the purview of the Commission. In addition to other

duties, the Commission oversees “the selection procedures for promotion to the rank

of Police Sergeant that are used by hundreds of New Jersey cities and counties that

participate in the New Jersey Civil Service system.” (Id. at 2.) This authority is

derived both by statute, N.J.S.A. 11A:-1 et seq., and by the mandate of the New Jersey

Constitution, which states that:

2

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Appointments and promotions in the civil service of the State, and of such political subdivisions as may be provided by law, shall be made according to the merit and fitness to be ascertained, as far as practicable, by examination, which, as far as practicable, shall be competitive. N.J. Const. art. VII, §1, ¶2. The Commission formulates, administers, and scores the examination. Candidates receive a pass/fail score. All test takers who receive a passing score are then eligible for promotion and placed on a police sergeant eligibility list, which ranks the candidates according to examination score (80%) and seniority (20%). The three highest-ranking candidates are certified, and then local jurisdictions have discretion to promote any of those three. N.J.S.A. 11A:4-8. As candidates are promoted, the next highest-ranking candidate from the eligibility list is certified and added to the pool, a process known as the “Rule of Three.” N.J.S.A. 11A:4-8. Before the consent decree, the sergeant’s examination consisted of multiplechoice questions. From 2000 to 2008, 89% of white candidates passed the examination, compared to 73% of African-American candidates and 77% of Hispanic candidates. (Compl., ¶¶ 14, 16.) The DOJ alleged in its lawsuit that AfricanAmericans and Hispanics “were under-represented in the higher score ranges and over-represented in the lower score ranges.” (Id. ¶¶ 19, 21.) The underrepresentation led to 20% of African-American and 22% of Hispanic candidates being certified from the eligibility lists as contrasted with 35% of white candidates. (Id. ¶ 23.) From those certified, 18% of white candidates were promoted compared with 9% of AfricanAmerican and 13% of Hispanic candidates. (Id.) As asserted in the complaint, the
3

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“pass/fail use of the NJCSC Police Sergeant written examination” both had a disparate impact on African-American and Hispanic candidates and was not “job related for the Police Sergeant position [nor] consistent with business necessity.” (Id. ¶¶ 24-26.)
II. POST-CONSENT DECREE EXAMINATIONS As part of the consent decree, the DOJ and the Commission agreed to work
together to develop and administer an examination that would reduce the adverse effects on African-American and Hispanic candidates. (D.E. 49 (“Second Amended Consent Decree”).) Towards that end, the DOJ offered Dr. David Jones, its testdevelopment expert, to assist with formulating the examination. (D.E. 100 Ex. B (“Letter from DOJ to New Jersey”).) The DOJ proposed supplementing the multiplechoice questions with a subjective component, envisioned as either an interview with the candidate or assessing responses to a video scenario. (Id.) The parties agreed that the Commission would keep decision-making authority over testing for knowledge, skills, and abilities (“KSAs”) through multiple-choice questions, and that the DOJ would help develop the new, subjective component. (Second Amended Consent Decree ¶ 80(h).) The consent decree gave DOJ significant input into the first two administrations of the revised examination. (Id. at ¶¶ 79, 80.) After that, the decree gives the DOJ a limited role for two more administrations of the examination, whereby the Commission provides baseline data as to each. Thereafter, the Commission is not required to involve the DOJ or its expert in the development, contents, or administration of future examinations. (Id. at ¶ 82.)
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A. 2013 Examination (First Administration) The DOJ initially proposed an oral interview for the subjective component.
(D.E. 100 Ex. B (“Letter dated July 31, 2012, from DOJ to New Jersey”).) However, because the examination had not been administered since 2010 when this lawsuit was filed, the anticipated large number of test-takers made an oral interview administratively impossible, and eventually the parties settled on a video-based component instead. Under this formulation, candidates were asked to respond to a video scenario through a series of free response, checklist, and forced-choice questions. (D.E. 100 Ex. D (“Declaration of Dr. David P. Jones”) at ¶ 5.) Although the DOJ initially wanted to create original videos, time constraints forced the parties to use stock videos that had been prepared for training purposes. (D.E. 100 (“DOJ Brief in Support of Motion”) at 7.) The examination still contained multiple-choice questions, which made up 55 % of the examination. (Id.)
The first examination was administered on June 1, 2013, and scored by the Commission in 2014. Both the DOJ and the Commission agree that the first administration of the examination was a success and that the results minimized the adverse impact on African-American and Hispanic candidates.1
B. 2016 Examination (Second Administration) The parties collaborated on a second examination, which was ultimately
approved by the DOJ. The video component consisted of wholly original content.
1 These representations were made to the Court at oral argument and are implicit in the parties’ papers.
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According to Dr. Jones, “the video scenarios covered police sergeant KSAs more comprehensively than they were covered in the video-based component of the First Administration. The length and content of these scenarios also were tailored to the police sergeant job.” (Declaration of Dr. David P. Jones at ¶ 6.)
When the Commission and the DOJ examined the results of the second examination, abnormalities became apparent. (DOJ Brief in Support of Motion at 8; Declaration of Dr. David P. Jones at ¶ 7.) Of concern, “a disproportionate number of African-American and Hispanic candidates, as compared to white candidates, did not provide a response to the last ten test items of the multiple-choice component.” (Id.) Although it was not intended to be a timed test, some candidates were unable to complete the exam within the allotted time. (Id. at ¶ 8.) According to Dr. Jones, “research findings show[] that ‘timed exams,’ where candidate scores are influenced in noteworthy ways by their being able to complete the exam versus being able to answer all exam questions under little time pressure, typically result in more substantial differences based on race and national origin in the scores obtained by candidates.” (Id.) Since the Commission scores an incomplete response as incorrect, a failure to finish these last questions negatively affected scores and created a disparate impact on African-American and Hispanic candidates. (Id. at 9.) As a result, the Commission had two options: (1) retain the scores and tolerate the disparate impact; or (2) drop that portion of the exam, which would adversely affect the Commission’s ability to assess the candidates’ skills that those questions were designed to measure.
6

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In response to this unexpected and undesirable outcome, the DOJ filed the within motion, seeking to have the same oversight and input into a third administration of the examination as it had over the last two. The Commission opposes, arguing that the objectionable result of the second administration of the examination was a “minor and readily rectified timing issue.” (D.E. 103 (“New Jersey Opposition Brief”) at 1.) The Court held oral argument on June 15, 2017.
III. STANDARD The DOJ’s application speaks in terms of “extending” the consent decree, which
raises the question of whether the Court would be extending or actually modifying the terms of the decree. Under the law, different standards apply. Pursuant to this decree, either party may request an extension upon a showing of “good cause.” (Second Amended Consent Decree at ¶ 90.) By contrast, a court may modify a consent decree “only upon making a finding that conditions have changed so that the basic purpose of the original consent decree has been thwarted.” Holland v. N.J. Dep’t of Corr., 246 F. 3d 267, 282 (3d Cir. 2001) (citing Chrysler Corp. v. United States, 316 U.S. 556, 562 (1942) (quotations omitted)).
A court has broad equitable powers to enforce a consent decree and fashion modification remedies. See Rufo v. Inmates of Suffolk Cty. Jail, 502 U.S. 367, 381 n. 6 (1992) (stating that a court’s modification power is “is long-established, broad, and flexible”); Holland, 246 F. 3d at 282 (recognizing that “remedial power contained within the modification and compliance enforcement powers can be used to extend a consent decree”). In Holland, the Third Circuit provided guidance for district courts
7

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in exercising their authority to modify or extend terms. 246 F. 3d 267. In that case, the DOJ argued that the New Jersey Department of Corrections had not complied with a consent decree and asked for a longer period during which the agency’s obligations under the decree would continue. The district court added ten months before the decree would expire, reasoning that the terms of the decree and the court’s inherent power conferred authority for its ruling. Id. at 270. The Third Circuit reversed, finding that the district court did not make specific findings to support its ruling, and, as well, that pushing out the expiration date modified the decree, and required a showing there was a change of circumstances. Id. at 271. The court acknowledged that the district judge had limited power to extend certain provisions, but found that a “court should interpret a consent decree as written and should not impose terms when the parties did not agree to those terms.” Id. at 281.
IV. DISCUSSION The consent decree remains in effect until the latest of three dates: three years
from the entry of the decree; the parties’ fulfillment of their respective obligations; or the Commission’s administration of the second police sergeant examination in accordance with paragraph 80. (Second Amended Consent Decree ¶ 89.) Factually, all of those events have happened. Granting the DOJ’s motion would confer authority in the DOJ over the formulation and administration of three sergeant’s examinations when the decree calls for only two.
The DOJ argues that because of the unexpected results of the second administration, it “has not had, in practice, the opportunity to review the State’s
8

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police sergeant selection procedure for the requisite period envisioned” and that a
third examination, subject to substantial DOJ involvement, is necessary to ensure
the relief sought by the consent decree. (DOJ Brief in Support of Motion at 13-14.)
But there are no provisions in the decree conferring additional authority in the DOJ
based on how the first two administrations turned out. The Court does not agree that
the relief DOJ wants involves “extending” the decree, and will not apply the standard
of “good cause.” Instead, as taught in Holland, in order to prevail the DOJ must show
that circumstances have sufficiently changed “so that the basic purpose of the original
consent decree has been thwarted.” Holland, 246 F. 3d at 282.
The DOJ argues that circumstances did change.
The Decree was intended to provide the United States with the opportunity to see the police sergeant selection procedure in effect for more than one administration to determine if it complies with Title VII and if its results could reliably be replicated in future administrations. However, because of the unanticipated differences between the First Administration and Second Administration that evolved during the course of test development, and the consequences of the multiple-choice component’s unplanned operation as a timed test, the United States has not had, in practice, the opportunity to review the State’s police sergeant selection procedure for the requisite period envisioned by the Parties.
(DOJ Brief in Support of Motion at 13-14.)
The consent decree is designed to achieve three purposes: (1) ensure that the
State no longer violates Title VII in promotions to police sergeant; (2) create a new
selection procedure; and (3) provide back pay and priority promotions with retroactive
seniority to those who were denied a promotion to police sergeant due to the
9

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challenged employment practices. (Second Amended Consent Decree ¶ 12.) Objectives two and three have been accomplished. The DOJ argues that the first objective may not have been achieved even though the parties fully complied with their respective obligations and authority because the DOJ does not have a sufficient sample size – which it apparently defines as two successful administrations of the revised examination – to determine if the Commission’s new selection procedure cures a disparate impact.
The DOJ helped develop, and had no objections to, the second examination, which used original videos developed with the DOJ’s and Dr. Jones’s input. (Declaration of Dr. David P. Jones at ¶ 6.) The final multiple-choice questions that raised this controversy were part of the written component, which was developed under the oversight of the Commission, and did not require the DOJ’s approval. The DOJ is not charging the Commission with foul play; by its own characterization, the results of the second administration were “unexpected.”
As a practical matter, achieving equity takes time, and this consent decree is a limited tool designed to implement changes in specific and measured ways. Significantly, the parties prepared for the long-term challenge of complying with Title VII by agreeing that the DOJ would have a defined, if limited role in the third and fourth examinations and continue to evaluate the base-line data while lessening its involvement. The Court agrees with the Commission’s position that the inadvertent time constraint can be “readily rectified” by giving candidates more time to complete
10

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the examination.2 Indeed, New Jersey has expressed that intent in its papers and at oral argument. (New Jersey Opposition Brief at 11.)
Applying the guidance in Holland, the Court finds that the parties have fulfilled their defined obligations, and that the consent decree would be substantially modified were it, in effect, revived and the DOJ endowed with an additional measure of authority over the administration of yet another exam. This goes well beyond what the decree envisioned. The Commission has pointed out that granting the DOJ’s application would significantly delay the pending administration of the exam this fall, when counsel indicated thousands of candidates are expected to take it, which suggests that the good is in danger of being pushed aside in the search for the perfect. Above all, there is no showing that the basic purpose of the decree was “thwarted.” Rather, the second administration exposed a flaw in how much time was needed to complete the written portion of the exam – the very portion that always remained under the direct authority of the Commission.
V. CONCLUSION For the foregoing reasons, the DOJ’s motion is denied. An appropriate order
will be entered.

Dated: June 30, 2017

/s/ Katharine S. Hayden Katharine S. Hayden, U.S.D.J.

2 In its sur-reply, the Commission stated: “The State does not need the DOJ’s participation in a third administration of the Police Sergeant examination to correct this timing issue. In fact, Dr. Jones states in his declaration at paragraph 13 that increasing the amount of time to complete the exam is an option to correct any adverse impact seen in the second administration.” (D.E. 108 at 2.)
11

 
 U.S. District Court District of New Jersey [LIVE] (Newark) CIVIL DOCKET FOR CASE #: 2:10-cv-00091-KSH-CLW

UNITED STATES OF AMERICA v. STATE OF NEW Date Filed: 01/07/2010

JERSEY et al

Date Terminated: 04/10/2014

Assigned to: Judge Katharine S. Hayden

Jury Demand: None

Referred to: Magistrate Judge Cathy L. Waldor

Nature of Suit: 442 Civil Rights:

Case in other court: Third Circuit, 12-02964

Jobs

Cause: 42:2000e Job Discrimination (Employment) Jurisdiction: U.S. Government

Plaintiff

Movant
Francisco Brito TERMINATED: 06/12/2012

represented by JOSEPH S. MURPHY 48 Ringwood Avenue RINGWOOD, NJ 07456 United Sta (973) 962-9449 Email: jsmurphy@optonline.net ATTORNEY TO BE NOTICED

Movant Edgar Taylor

represented by JOSEPH S. MURPHY (See above for address) ATTORNEY TO BE NOTICED

Movant Anthony DiGiglio

represented by JOSEPH S. MURPHY (See above for address) ATTORNEY TO BE NOTICED

Movant Eza Laypan

represented by JOSEPH S. MURPHY (See above for address) ATTORNEY TO BE NOTICED

Movant Brian Gilligan

represented by JOSEPH S. MURPHY (See above for address) ATTORNEY TO BE NOTICED

Movant

Timothy Tabor
Movant OFFICER GERARD ERIT
Movant Sean C. Reed
Movant Paul Miccinilli
Movant OFFICER LOUIS PACELLI
Movant Ryan Duffy
Movant Daniel E. Condon TERMINATED: 06/12/2012
Movant Eric M Colondres TERMINATED: 06/12/2012
Movant Eladio Lugo

represented by JOSEPH S. MURPHY (See above for address) ATTORNEY TO BE NOTICED
represented by JOSEPH S. MURPHY (See above for address) ATTORNEY TO BE NOTICED
represented by JOSEPH S. MURPHY (See above for address) ATTORNEY TO BE NOTICED
represented by JOSEPH S. MURPHY (See above for address) ATTORNEY TO BE NOTICED
represented by JOSEPH S. MURPHY (See above for address) ATTORNEY TO BE NOTICED
represented by JOSEPH S. MURPHY (See above for address) ATTORNEY TO BE NOTICED
represented by JOSEPH S. MURPHY (See above for address) ATTORNEY TO BE NOTICED
represented by JOSEPH S. MURPHY (See above for address) ATTORNEY TO BE NOTICED
represented by JOSEPH S. MURPHY (See above for address) ATTORNEY TO BE NOTICED

Movant RYAN CURVING TERMINATED: 06/12/2012
Movant ABDELMONIM HAMDEH
Movant Dean Barone TERMINATED: 06/12/2012
Movant Saleh Judah
Movant Richard Latrecchia
Movant David Tanis
Movant William Niebank
Movant RAYMOND CUSACK TERMINATED: 06/12/2012
Movant

represented by JOSEPH S. MURPHY (See above for address) ATTORNEY TO BE NOTICED
represented by JOSEPH S. MURPHY (See above for address) ATTORNEY TO BE NOTICED
represented by JOSEPH S. MURPHY (See above for address) ATTORNEY TO BE NOTICED
represented by JOSEPH S. MURPHY (See above for address) ATTORNEY TO BE NOTICED
represented by JOSEPH S. MURPHY (See above for address) ATTORNEY TO BE NOTICED
represented by JOSEPH S. MURPHY (See above for address) ATTORNEY TO BE NOTICED
represented by JOSEPH S. MURPHY (See above for address) ATTORNEY TO BE NOTICED
represented by JOSEPH S. MURPHY (See above for address) ATTORNEY TO BE NOTICED

ANTONIO PISTONE
Movant Brian Morgan
Movant Gary DeStefano
Movant RICHARD BOTBYL TERMINATED: 06/12/2012
Movant Jack K. DeSalvo
Plaintiff UNITED STATES OF AMERICA

represented by JOSEPH S. MURPHY (See above for address) ATTORNEY TO BE NOTICED
represented by JOSEPH S. MURPHY (See above for address) ATTORNEY TO BE NOTICED
represented by JOSEPH S. MURPHY (See above for address) ATTORNEY TO BE NOTICED
represented by JOSEPH S. MURPHY (See above for address) ATTORNEY TO BE NOTICED
represented by JOSEPH S. MURPHY (See above for address) ATTORNEY TO BE NOTICED
represented by HILARY J. FUNK U.S. DEPARTMENT OF JUSTICE CIVIL RIGHTS DIVISION EMPLOYMENT LITIGATION SECTION 950 PENNSYLVANIA AVENUE NW PATRICK HENRY BUILDING, ROOM 4512 WASHINGTON, DC 20530 202-514-3831 Email: hilary.funk@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
TREVOR ST. GEORGE BLAKE U.S. DEPARTMENT OF JUSTICE 950 PENNSYLVANIA AVENUE NW PATRICK HENRY BUILDING ROOM 4232

WASHINGTON, DC 20530 202-514-5034 Email: trevor.blake@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
VALERIE LEIGH MEYER U.S. DEPARTMENT OF JUSTICE CIVIL RIGHTS DIVISION EMPLOYMENT LITIGATION SECTION 950 PENNSYLVANIA AVENUE NW PHB 4234 WASHINGTON, DC 20008 202-305-3179 Email: valerie.meyer@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
BARBARA E. THAWLEY UNITED STATES DEPARTMENT OF JUSTICE EMPLOYMENT LITIGATION SECTION CIVIL RIGHTS DIVISION 950 PENNSYLVANIA AVE N.W. Washington, DC 20035-5968 202-514-3852 Email: barbara.e.thawley@usdoj.gov TERMINATED: 02/03/2012 ATTORNEY TO BE NOTICED
ELIZABETH BELLE BANASZAK U.S. DEPARTMENT OF JUSTICE CIVIL RIGHTS DIVISION EMPLOYMENT LITIGATION SECTION 950 PENNSYLVANIA AVENUE NW PHB ROOM 4235 WASHINGTON, DC 20530 202-514-3831 Email: elizabeth.banaszak@usdoj.gov ATTORNEY TO BE NOTICED
ESTHER GWEN LANDER U.S. DEPARTMENT OF JUSTICE

V. Defendant STATE OF NEW JERSEY

CIVIL RIGHTS DIVISION EMPOLYMENT LITIGATION SECTION 950 PENNSYLVANIA AVENUE NW PATRICK HENRY BUILDING, ROOM 4069 WASHINGTON, DC 20530 202-616-1578 Email: esther.tamburo@usdoj.gov ATTORNEY TO BE NOTICED
MEREDITH LYNN BURRELL U.S. DEPARTMENT OF JUSTICE 950 PENNSYLVANIA AVENUE NW PHB 4924 WASHINGTON, DC 20530 202-305-9053 Email: meredith.burrell@usdoj.gov ATTORNEY TO BE NOTICED
VARDA HUSSAIN U.S. DEPARTMENT OF JUSTICE CIVIL RIGHTS DIVISION EMPLOYMENT LITIGTION SECTION, PHB 950 PENNSYLVANIA AVENUE NW WASHINGTON, DC 20530 202-305-4267 Email: varda.hussain@usdoj.gov TERMINATED: 10/01/2012 ATTORNEY TO BE NOTICED
represented by KEVIN R. JESPERSEN STATE OF NEW JERSEY DIVISION OF LAW 124 HALSEY STREET 5TH FLOOR P.O. BOX 45029 NEWARK, NJ 07101 973-648-7457 Email: kevin.jespersen@law.dol.lps.state.nj.us

Defendant
NEW JERSEY CIVIL SERVICE COMMISSION

LEAD ATTORNEY ATTORNEY TO BE NOTICED
LISA D. RUCH OFFICE OF THE NJ ATTORNEY GENERAL DEPARTMENT OF LAW & PUBLIC SAFETY HUGHES JUSTICE COMPLEX 25 MARKET STREET PO BOX 112 TRENTON, NJ 08625 (609) 633-8409 LEAD ATTORNEY ATTORNEY TO BE NOTICED
SUSAN MARIE SCOTT OFFICE OF THE NJ ATTORNEY GENERAL RJ HUGHES JUSTICE COMPLEX PO BOX 112 TRENTON, NJ 08625 (609) 777-3410 Fax: (609) 943-4853 Email: susan.scott@law.njoag.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
MELANIE ROSE WALTER STATE OF NEW JERSEY OFFICE OF THE ATTORNEY GENERAL 25 MARKET STREET P.O. BOX 112 TRENTON, NJ 08625 609-984-3872 Email: melanie.walter@dol.lps.state.nj.us ATTORNEY TO BE NOTICED
represented by KEVIN R. JESPERSEN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Counter Claimant OFFICER GERARD ERIT
Counter Claimant OFFICER LOUIS PACELLI
Counter Claimant RYAN CURVING
Counter Claimant ABDELMONIM HAMDEH
Counter Claimant RAYMOND CUSACK
Counter Claimant RICHARD BOTBYL also known as Richard S Botbyl

LISA D. RUCH (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
SUSAN MARIE SCOTT (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MELANIE ROSE WALTER (See above for address) ATTORNEY TO BE NOTICED
represented by JOSEPH S. MURPHY (See above for address) ATTORNEY TO BE NOTICED
represented by JOSEPH S. MURPHY (See above for address) ATTORNEY TO BE NOTICED
represented by JOSEPH S. MURPHY (See above for address) ATTORNEY TO BE NOTICED
represented by JOSEPH S. MURPHY (See above for address) ATTORNEY TO BE NOTICED
represented by JOSEPH S. MURPHY (See above for address) ATTORNEY TO BE NOTICED
represented by JOSEPH S. MURPHY (See above for address) ATTORNEY TO BE NOTICED

Counter Claimant Francisco Brito
Counter Claimant Edgar Taylor
Counter Claimant Anthony DiGiglio
Counter Claimant Eza Laypan
Counter Claimant Brian Gilligan
Counter Claimant Timothy Tabor
Counter Claimant Sean C. Reed
Counter Claimant Paul Miccinilli
Counter Claimant

represented by JOSEPH S. MURPHY (See above for address) ATTORNEY TO BE NOTICED
represented by JOSEPH S. MURPHY (See above for address) ATTORNEY TO BE NOTICED
represented by JOSEPH S. MURPHY (See above for address) ATTORNEY TO BE NOTICED
represented by JOSEPH S. MURPHY (See above for address) ATTORNEY TO BE NOTICED
represented by JOSEPH S. MURPHY (See above for address) ATTORNEY TO BE NOTICED
represented by JOSEPH S. MURPHY (See above for address) ATTORNEY TO BE NOTICED
represented by JOSEPH S. MURPHY (See above for address) ATTORNEY TO BE NOTICED
represented by JOSEPH S. MURPHY (See above for address) ATTORNEY TO BE NOTICED

Ryan Duffy
Counter Claimant Daniel E. Condon
Counter Claimant Eric M Colondres
Counter Claimant Eladio Lugo
Counter Claimant Dean Barone
Counter Claimant Saleh Judah
Counter Claimant Richard Latrecchia
Counter Claimant David Tanis
Counter Claimant William Niebank

represented by JOSEPH S. MURPHY (See above for address) ATTORNEY TO BE NOTICED
represented by JOSEPH S. MURPHY (See above for address) ATTORNEY TO BE NOTICED
represented by JOSEPH S. MURPHY (See above for address) ATTORNEY TO BE NOTICED
represented by JOSEPH S. MURPHY (See above for address) ATTORNEY TO BE NOTICED
represented by JOSEPH S. MURPHY (See above for address) ATTORNEY TO BE NOTICED
represented by JOSEPH S. MURPHY (See above for address) ATTORNEY TO BE NOTICED
represented by JOSEPH S. MURPHY (See above for address) ATTORNEY TO BE NOTICED
represented by JOSEPH S. MURPHY (See above for address) ATTORNEY TO BE NOTICED
represented by JOSEPH S. MURPHY (See above for address) ATTORNEY TO BE NOTICED

Counter Claimant ANTONIO PISTONE Counter Claimant Brian Morgan Counter Claimant Gary DeStefano Counter Claimant Jack K. DeSalvo
V. Counter Defendant NEW JERSEY CIVIL SERVICE COMMISSION
Counter Defendant

represented by JOSEPH S. MURPHY (See above for address) ATTORNEY TO BE NOTICED
represented by JOSEPH S. MURPHY (See above for address) ATTORNEY TO BE NOTICED
represented by JOSEPH S. MURPHY (See above for address) ATTORNEY TO BE NOTICED
represented by JOSEPH S. MURPHY (See above for address) ATTORNEY TO BE NOTICED
represented by KEVIN R. JESPERSEN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
LISA D. RUCH (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
SUSAN MARIE SCOTT (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MELANIE ROSE WALTER (See above for address) ATTORNEY TO BE NOTICED

STATE OF NEW JERSEY
Counter Defendant UNITED STATES OF AMERICA

represented by KEVIN R. JESPERSEN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
LISA D. RUCH (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
SUSAN MARIE SCOTT (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MELANIE ROSE WALTER (See above for address) ATTORNEY TO BE NOTICED
represented by HILARY J. FUNK (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
TREVOR ST. GEORGE BLAKE (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
VALERIE LEIGH MEYER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BARBARA E. THAWLEY (See above for address) TERMINATED: 02/03/2012 ATTORNEY TO BE NOTICED
ELIZABETH BELLE BANASZAK (See above for address) ATTORNEY TO BE NOTICED
ESTHER GWEN LANDER (See above for address)

ATTORNEY TO BE NOTICED
MEREDITH LYNN BURRELL (See above for address) ATTORNEY TO BE NOTICED
VARDA HUSSAIN (See above for address) TERMINATED: 10/01/2012 ATTORNEY TO BE NOTICED

Date Filed 01/07/2010
01/07/2010 01/11/2010
01/12/2010 01/12/2010 02/03/2010 02/04/2010 02/23/2010

# Docket Text
1 COMPLAINT against NEW JERSEY CIVIL SERVICE COMMISSION, STATE OF NEW JERSEY (Filing fee $ None Required.) None., filed by UNITED STATES OF AMERICA. (Attachments: # 1 Civil Cover Sheet)(ld, ) (Entered: 01/11/2010)
2 Request for Summons to be Issued by UNITED STATES OF AMERICA as to NEW JERSEY CIVIL SERVICE COMMISSION, STATE OF NEW JERSEY. (ld, ) (Entered: 01/11/2010)
3 SUMMONS ISSUED as to NEW JERSEY CIVIL SERVICE COMMISSION, STATE OF NEW JERSEY Attached is the official court Summons, please fill out Defendant and Plaintiffs attorney information and serve. Issued By *Leroy Dunbar* (ld, ) (Entered: 01/11/2010)
4 NOTICE of Appearance by ESTHER GWEN LANDER on behalf of UNITED STATES OF AMERICA (LANDER, ESTHER) (Entered: 01/12/2010)
5 NOTICE of Appearance by MEREDITH LYNN BURRELL on behalf of UNITED STATES OF AMERICA (BURRELL, MEREDITH) (Entered: 01/12/2010)
6 Request for Extension of Time to ANSWER to Complaint by NEW JERSEY CIVIL SERVICE COMMISSION, STATE OF NEW JERSEY.(RUCH, LISA) (Entered: 02/03/2010)
7 NOTICE of Appearance by ELIZABETH BELLE BANASZAK on behalf of UNITED STATES OF AMERICA (BANASZAK, ELIZABETH) (Entered: 02/04/2010)
8 Application and Proposed Order for Clerk's Order to extend time to answer as to Defendants' Time to Answer.. (Attachments:

02/25/2010 03/01/2010 03/26/2010
03/29/2010 03/29/2010 04/12/2010 04/30/2010 06/23/2010 06/29/2010 07/28/2010

# 1 Certificate of Service, # 2 Statement, # 3 Certification, # 4 Text of Proposed Order)(RUCH, LISA) (Entered: 02/23/2010)
9 ORDER granting defts., STATE OF NJ & NJ CIVIL SERV. COMM. an extension of time to answer Cmp. until 3/29/10.. Signed by Magistrate Judge Michael A. Shipp on 2/25/10. (DD, ) (Entered: 03/01/2010)
Update Answer Due Deadline as to defts., STATE OF NJ & NJ CIVIL SERV. COMM. until 3/29/10 (DD, ) (Entered: 03/01/2010)
10 Second MOTION for Extension of Time to File Answer by NEW JERSEY CIVIL SERVICE COMMISSION, STATE OF NEW JERSEY. (Attachments: # 1 Certification, # 2 Certificate of Service, # 3 Statement, # 4 Text of Proposed Order)(RUCH, LISA) (Entered: 03/26/2010)
Set Deadline as to 10 Second MOTION for Extension of Time to File Answer. Motion set for 4/19/2010 before Judge Katharine S. Hayden. The motion will be decided on the papers. No appearances required unless notified by the court. (sr, ) (Entered: 03/29/2010)
11 ORDER granting 10 Motion for Extension of Time to Answer. Signed by Magistrate Judge Michael A. Shipp on 3/29/10. (sr, ) (Entered: 03/29/2010)
12 ANSWER to Complaint by NEW JERSEY CIVIL SERVICE COMMISSION, STATE OF NEW JERSEY. (Attachments: # 1 Certificate of Service)(RUCH, LISA) (Entered: 04/12/2010)
13 Amended ANSWER to Complaint by NEW JERSEY CIVIL SERVICE COMMISSION, STATE OF NEW JERSEY. (Attachments: # 1 Certificate of Service)(RUCH, LISA) (Entered: 04/30/2010)
14 SCHEDULING ORDER Setting Scheduling Conference for 8/10/2010 11:00 AM in Newark - Courtroom 2C before Magistrate Judge Michael A. Shipp. Signed by Magistrate Judge Michael A. Shipp on 6/23/10. (NR) (Entered: 06/23/2010)
15 NOTICE of Appearance by VARDA HUSSAIN on behalf of UNITED STATES OF AMERICA (HUSSAIN, VARDA) (Entered: 06/29/2010)
16 NOTICE of Appearance by KEVIN R. JESPERSEN on behalf of NEW JERSEY CIVIL SERVICE COMMISSION, STATE OF NEW JERSEY (JESPERSEN, KEVIN) (Entered: 07/28/2010)

07/29/2010 08/05/2010 09/08/2010 09/15/2010 09/22/2010
10/15/2010 10/21/2010 10/25/2010

17 Joint Discovery Plan by UNITED STATES OF AMERICA. (Attachments: # 1 Attachment 1 to Joint Discovery Plan)(HUSSAIN, VARDA) (Entered: 07/29/2010)
18 TEXT ORDER - The Scheduling Conference set for August 10, 2010 at 11:00 a.m. has been adjourned until September 8, 2010 at 4:30 p.m. in Newark - Courtroom 2C before the Hon. Michael A. Shipp, U.S.M.J. ORDERED by Magistrate Judge Michael A. Shipp on 8/5/10. (NR ) (Entered: 08/05/2010)
Minute Entry for proceedings held before Magistrate Judge Michael A. Shipp: Scheduling Conference held on 9/8/2010. Parties to submit scheduling order. (NR ) (Entered: 09/10/2010)
19 Letter from United States Regarding Proposed Scheduling Order. (Attachments: # 1 Text of Proposed Order)(BANASZAK, ELIZABETH) (Entered: 09/15/2010)
20 PRETRIAL SCHEDULING ORDER:In-Person Settlement Conference set for 3/3/2011 11:00 AM before Magistrate Judge Michael A. Shipp. Final Pretrial Conference set for 12/20/2011 11:00 AM before Magistrate Judge Michael A. Shipp. Status ConferenceS set for 2/14/2011 01:00 PM, 6/2/11 10:30 AM, 9/15/11 10:30 AM, Discovery due by 10/14/2011; etc. Signed by Magistrate Judge Michael A. Shipp on 9/22/10. (sr, ) (Entered: 09/23/2010)
21 NOTICE of Appearance by VALERIE LEIGH MEYER on behalf of UNITED STATES OF AMERICA (MEYER, VALERIE) (Entered: 10/15/2010)
22 MOTION to Amend/Correct 20 Scheduling Order, by NEW JERSEY CIVIL SERVICE COMMISSION, STATE OF NEW JERSEY. (Attachments: # 1 Text of Proposed Order)(RUCH, LISA) (Entered: 10/21/2010)
23 Revised Pretrial SCHEDULING ORDER: Settlement Conference set for 3/3/2011 11:00 AM before Magistrate Judge Michael A. Shipp. Telephone Conference set for 2/14/2011 01:00 PM before Magistrate Judge Michael A. Shipp. Final Pretrial Conference set for 12/20/2011 11:00 AM before Magistrate Judge Michael A. Shipp. Amended Pleadings due by 12/13/2010. Fact & expert Discovery due by 11/4/2011. Joinder of Parties due by 12/13/2010. Proposed Pretrial Order due by 12/13/2011. Telephone Conference set for 6/2/2011 10:30 AM before Magistrate Judge Michael A. Shipp. Telephone Conference set for 9/15/2011 10:30 AM before Magistrate Judge Michael A. Shipp.. Signed by Magistrate Judge Michael A. Shipp on 10/25/10. (jd, ) (Entered: 10/28/2010)

11/05/2010 12/16/2010 01/04/2011 02/09/2011 02/14/2011 03/03/2011
03/03/2011 03/28/2011 04/04/2011
04/04/2011 04/08/2011

24 AFFIDAVIT/Certification in support of discovery confidentiality order of Lisa D. Ruch by UNITED STATES OF AMERICA. (Attachments: # 1 Text of Proposed Order)(HUSSAIN, VARDA) (Entered: 11/05/2010)
25 NOTICE of Appearance by HILARY J. FUNK on behalf of UNITED STATES OF AMERICA (FUNK, HILARY) (Entered: 12/16/2010)
26 PROTECTIVE ORDER fld. Signed by Magistrate Judge Michael A. Shipp on 1/4/11. (sr, ) (Entered: 01/04/2011)
27 Letter from United States and State of New Jersey Regarding Status of Case. (HUSSAIN, VARDA) (Entered: 02/09/2011)
Minute Entry for proceedings held before Magistrate Judge Michael A. Shipp: Status Conference Call held on 2/14/2011. (NR) (Entered: 02/15/2011)
28 TEXT ORDER - Pursuant to the 3/3/11 settlement conference, there shall be a follow-up in-person settlement conference on 4/4/11 at 2:00 p.m. All counsel with full settlement authority must appear in person. By 3/28/11, both parties shall submit an ex-parte confidential settlement position letter to the Court via facsimile to (973) 645-4412. ORDERED by Magistrate Judge Michael A. Shipp on 3/3/11. (NR ) (Entered: 03/03/2011)
Minute Entry for proceedings held before Magistrate Judge Michael A. Shipp: Settlement Conference held on 3/3/2011. (NR ) (Entered: 03/04/2011)
29 NOTICE of Appearance by TREVOR ST. GEORGE BLAKE on behalf of UNITED STATES OF AMERICA (BLAKE, TREVOR) (Entered: 03/28/2011)
30 TEXT ORDER - Pursuant to the in-person settlement conference held on 4/4/11, there shall be a follow-up in person settlement conference on 4/26/11 at 2:00 p.m. By 4/19/11, the parties shall submit updated confidential settlement position letters to the Court via fax (973) 6454412. ORDERED by Magistrate Judge Michael A. Shipp on 4/4/11. (NR) (Entered: 04/04/2011)
Minute Entry for proceedings held before Magistrate Judge Michael A. Shipp: Settlement Conference held on 4/4/2011. (NR) (Entered: 04/05/2011)
31 Letter from United States Requesting Emergency Teleconference. (BANASZAK, ELIZABETH) (Entered: 04/08/2011)

04/08/2011
04/26/2011
04/26/2011 05/11/2011 05/19/2011 05/20/2011
07/15/2011 07/18/2011 08/01/2011

32 Text Order: The parties' request for an emergency telephone conference (Doc. No. 31) is denied. In the event of a lapse in appropriations, in order to discuss the current scheduling order and any need for extensions.a telephone status conference shall be scheduled once Congress has appropriated funds for the Department.ORDERED by Magistrate Judge Michael A. Shipp on 4/8/11. (NR) (Entered: 04/08/2011)
33 TEXT ORDER - Pursuant to the 4/26/11 in-person settlement conference, the parties shall meet and confer regarding the settlement of this matter by 4/29/11. Counsel shall e-file a joint status letter to this Court discussing the outcome of the meeting by 5/4/11.ORDERED by Magistrate Judge Michael A. Shipp on 4/26/11. (NR ) (Entered: 04/26/2011)
Minute Entry for proceedings held before Magistrate Judge Michael A. Shipp: Settlement Conference held on 4/26/2011. (NR ) (Entered: 04/27/2011)
34 TEXT ORDER - A telephone status conference shall be held on 5/19/11 at 3:30 p.m. Counsel for Plaintiff shall initiate the call to (973) 645-3827. ORDERED by Magistrate Judge Michael A. Shipp on 5/11/11. (NR ) (Entered: 05/11/2011)
Minute Entry for proceedings held before Magistrate Judge Michael A. Shipp: Status Conference Call held on 5/19/2011. (NR ) (Entered: 05/20/2011)
35 Text Order: Pursuant to the 5/19/11 telephone status conference, the parties have indicated that a settlement in principle has been reached. By 7/18/11, the parties shall file a motion for preliminary approval of the settlement agreement and, if necessary or appropriate, shall further e-file a joint status letter setting forth proposed dates for a fairness hearing. ORDERED by Magistrate Judge Michael A. Shipp on 5/20/11. (NR) (Entered: 05/20/2011)
36 Letter from New Jersey Civil Service Commission. (RUCH, LISA) (Entered: 07/15/2011)
37 ORDER extending time as to the State of New Jersey, et al to finalize motion for preliminary approval of the settlement agreement. Signed by Magistrate Judge Michael A. Shipp on 7/18/11. (sr, ) (Entered: 07/19/2011)
38 Joint MOTION Provisional Entry of Consent Decree and Scheduling of Initial Fairness Hearing by UNITED STATES OF AMERICA. (Attachments: # 1 Brief of United States in Support of Joint Motion,

08/02/2011 08/08/2011 08/09/2011 08/10/2011
08/11/2011 08/12/2011 08/15/2011 09/15/2011

# 2 Exhibit Consent Decree and Attachments A-K, # 3 Exhibit Declaration of Dr. Bernard R. Siskin, # 4 Exhibit Declaration of Dr. David P. Jones, # 5 Exhibit Deposition Excerpt of D. Hill, # 6 Statement Defendants' Letter Joining in Motion for Provisional Entry of Consent Decree, # 7 Text of Proposed Order Proposed Order)(HUSSAIN, VARDA) (Entered: 08/01/2011)
Set Deadlines as to 38 Joint MOTION Provisional Entry of Consent Decree and Scheduling of Initial Fairness Hearing. Motion set for 9/6/2011 before Judge Katharine S. Hayden. The motion will be decided on the papers. No appearances required unless notified by the court. (nic, ) (Entered: 08/02/2011)
39 REDACTION to 38 Joint MOTION Provisional Entry of Consent Decree and Scheduling of Initial Fairness Hearing Exhibit Deposition Excerpt of D. Hill by UNITED STATES OF AMERICA. (FUNK, HILARY) (Entered: 08/08/2011)
40 Joint MOTION to Remove the Unredacted Deposition Excerpt of D. Hill from Docket No. 38 by UNITED STATES OF AMERICA. (Attachments: # 1 Text of Proposed Order)(FUNK, HILARY) (Entered: 08/09/2011)
41 ORDER that the Clerk's Office shall temporarily maintain the unredacted deposition excerpt of D. Hill (DE#38-5) under seal. The parties' joint motion to remove the unredacted deposition excerpt (DE#40) is administratively terminated, and the parties shall jointly file a formal motion to seal by 8/17/11. Signed by Magistrate Judge Michael A. Shipp on 8/10/11. (sr, ) (Entered: 08/10/2011)
42 Joint MOTION to Seal the Unredacted Deposition Excerpt of D. Hill Maintained at Docket Entry Number 38-5 by UNITED STATES OF AMERICA. (Attachments: # 1 Text of Proposed Order)(FUNK, HILARY) (Entered: 08/11/2011)
Set Deadline as to 42 Joint MOTION to Seal the Unredacted Deposition Excerpt of D. Hill Maintained at Docket Entry Number 385. Motion set for 9/6/2011 before Judge Katharine S. Hayden. The motion will be decided on the papers. No appearances required unless notified by the court. (sr, ) (Entered: 08/12/2011)
43 ORDER granting 42 Motion to Seal. Signed by Magistrate Judge Michael A. Shipp on 8/15/11. (sr, ) (Entered: 08/15/2011)
44 Text Order: There shall be a telephone status conference on 9/30/11 at 10:00 a.m. Counsel for Plaintiff shall initiate the call to 973-645-3827. By 9/23/11, the parties shall e-file a joint status letter to this Court,

09/15/2011 09/23/2011
09/30/2011 10/20/2011
11/02/2011 11/22/2011
01/30/2012 01/30/2012 01/30/2012 01/30/2012

setting forth proposed dates for the initial fairness hearing and any other issues that require the Court's assistance.ORDERED by Magistrate Judge Michael A. Shipp on 9/15/11. (NR) (Entered: 09/15/2011)
45 ORDER/CONSENT DECREE FLD. Signed by Magistrate Judge Michael A. Shipp on 9/15/11. (sr, ) (Entered: 09/16/2011)
46 Letter from Plaintiff United States and Defendants State of New Jersey and New Jersey Civil Service Commission. (Attachments: # 1 Exhibit 1 Amended Consent Decree, # 2 Exhibit 2 Revised Attachment E, # 3 Exhibit 3 Revised Attachment H, # 4 Exhibit 4 Revised Attachment I, # 5 Exhibit 5 Revised Attachment J)(HUSSAIN, VARDA) (Entered: 09/23/2011)
Minute Entry for proceedings held before Magistrate Judge Michael A. Shipp: Status Conference Call held on 9/30/2011. (NR ) (Entered: 10/03/2011)
47 Joint MOTION for Settlement /Provisional Entry of First Amended Consent Decree by UNITED STATES OF AMERICA. (Attachments: # 1 First Amended Consent Decree with Attachments A-K, # 2 First Amended Declaration of Bernard R. Siskin, Ph.D.)(HUSSAIN, VARDA) (Entered: 10/20/2011)
48 FIRST AMENDED CONSENT DECREE fld. Signed by Judge Katharine S. Hayden on 11/2/11. (sr, ) (Entered: 11/02/2011)
49 SECOND AMENDED CONSENT DECREE. Signed by Judge Katharine S. Hayden on 11/22/11. (Attachments: # 1 attachment A, # 2 attachment B, # 3 attachment C, # 4 attachment D, # 5attachment E, # 6 attachment F, # 7 attachment G, # 8 attachment H, # 9 attachment I)(sr, ) (Additional attachment(s) added on 11/22/2011: # 10 attachment J, # 11 attachment K) (dc). (Entered: 11/22/2011)
51 Letter/Objection to the entry of the Consent Decree submitted by Scott M. Tesser. (sr, ) (Entered: 02/01/2012)
53 NOTICE/OBJECTION to entry of the Consent Decree submitted by Scott McNulty. (sr, ) (Entered: 02/03/2012)
54 NOTICE/OBJECTION to the entry of the Consent Decree submitted by Todd G. Bourke. (sr, ) (Entered: 02/03/2012)
55 NOTICE/OBJECTION to the entry of the Consent Decree submitted by Francis X. Sprague. (sr, ) (Entered: 02/03/2012)

02/01/2012 02/03/2012 02/09/2012
02/09/2012
02/09/2012

50 Letter from U.S. Requesting Training. (HUSSAIN, VARDA) (Entered: 02/01/2012)
52 NOTICE by UNITED STATES OF AMERICA of Withdrawal of Appearance of Counsel (THAWLEY, BARBARA) (Entered: 02/03/2012)
56 ANSWER to Complaint, COUNTERCLAIM against NEW JERSEY CIVIL SERVICE COMMISSION, STATE OF NEW JERSEY, UNITED STATES OF AMERICA by Francisco Brito, Edgar Taylor, Anthony DiGiglio, Eza Laypan, Brian Gilligan, Timothy Tabor, Gerard S Erit, Sean C. Reed, Paul Miccinilli, Louis S Pacelli, Ryan Duffy, Daniel E. Condon, Eric M Colondres, Eladio Lugo, Ryan S Curving, Abdelmonim S Hamdeh, Dean Barone, Saleh Judah, Richard Latrecchia, David Tanis, William Niebank, Raymond S Cusack, ANTONIO PISTONE, Brian Morgan, Gary DeStefano, Richard S Botbyl, Jack K. DeSalvo. (Attachments: # 1 Exhibit Movant Certifications)(MURPHY, JOSEPH) (Entered: 02/09/2012)
57 MOTION to Intervene by Dean Barone, Richard S Botbyl, Francisco Brito, Eric M Colondres, Daniel E. Condon, Ryan S Curving, Raymond S Cusack, Jack K. DeSalvo, Gary DeStefano, Anthony DiGiglio, Ryan Duffy, Gerard S Erit, Brian Gilligan, Abdelmonim S Hamdeh, Saleh Judah, Richard Latrecchia, Eza Laypan, Eladio Lugo, Paul Miccinilli, Brian Morgan, William Niebank, ANTONIO PISTONE, Louis S Pacelli, Sean C. Reed, Timothy Tabor, David Tanis, Edgar Taylor. (Attachments: # 1 Text of Proposed Order Proposed Order, # 2 Brief Brief in Support of Motion to Intervene, # 3 Exhibit Certifications, # 4 Exhibit Paterson, NJ Sergeant's Exam Candidate List 9/22/10, # 5 Statement Cover Letter)(MURPHY, JOSEPH) (Additional attachment(s) added on 2/9/2012: # 6 Exhibit "2", # 7 Exhibit "5") (mn). (Entered: 02/09/2012)
58 MOTION for Discovery by Dean Barone, Richard S Botbyl, Francisco Brito, Eric M Colondres, Daniel E. Condon, Ryan S Curving, Raymond S Cusack, Jack K. DeSalvo, Gary DeStefano, Anthony DiGiglio, Ryan Duffy, Gerard S Erit, Brian Gilligan, Abdelmonim S Hamdeh, Saleh Judah, Richard Latrecchia, Eza Laypan, Eladio Lugo, Paul Miccinilli, Brian Morgan, William Niebank, ANTONIO PISTONE, Louis S Pacelli, Sean C. Reed, Timothy Tabor, David Tanis, Edgar Taylor. (Attachments: # 1 Text of Proposed Order Proposed Order, # 2 Brief Brief in Support of Motion for Discovery, # 3 Exhibit Intervenor Certification, # 4 Exhibit Report of Dr. Paratore, # 5 Exhibit Holtz Learning Center Course Description, # 6 Statement Cover Letter)(MURPHY, JOSEPH) (Entered: 02/09/2012)

02/09/2012
02/09/2012 02/21/2012 02/21/2012 02/22/2012 02/27/2012

59 MOTION for Preliminary Injunction by Dean Barone, Richard S Botbyl, Francisco Brito, Eric M Colondres, Daniel E. Condon, Ryan S Curving, Raymond S Cusack, Jack K. DeSalvo, Gary DeStefano, Anthony DiGiglio, Ryan Duffy, Gerard S Erit, Brian Gilligan, Abdelmonim S Hamdeh, Saleh Judah, Richard Latrecchia, Eza Laypan, Eladio Lugo, Paul Miccinilli, Brian Morgan, William Niebank, ANTONIO PISTONE, Louis S Pacelli, Sean C. Reed, Timothy Tabor, David Tanis, Edgar Taylor. (Attachments: # 1 Text of Proposed Order Proposed Order, # 2 Brief Brief in Support of Injunctive Relief, # 3 Exhibit Movant/Intervenor Certifications, # 4 Exhibit Paterson, NJ Sergeant's Exam Candidate List 9/22/10, # 5 Statement Cover Letter)(MURPHY, JOSEPH) (Entered: 02/09/2012)
Set Deadlines as to 58 MOTION for Discovery, 59 MOTION for Preliminary Injunction, 57 MOTION to Intervene. Motion set for 3/5/2012 before Judge Katharine S. Hayden. The motion will be decided on the papers. No appearances required unless notified by the court. (sr, ) (Entered: 02/09/2012)
60 BRIEF in Opposition filed by UNITED STATES OF AMERICA re 58 MOTION for Discovery, 59 MOTION for Preliminary Injunction, 57 MOTION to Intervene (Attachments: # 1 Attachments 14)(HUSSAIN, VARDA) (Entered: 02/21/2012)
61 NOTICE by UNITED STATES OF AMERICA re 60 Brief in Opposition to Motion Certificate of Service (HUSSAIN, VARDA) (Entered: 02/21/2012)
62 Letter from United States re 60 Brief in Opposition to Motion. (Attachments: # 1 Supplement Corrected Cover Page to U.S.' Brief in Opposition)(FUNK, HILARY) (Entered: 02/22/2012)
63 REPLY BRIEF to Opposition to Motion filed by RICHARD BOTBYL, Dean Barone, Francisco Brito, RYAN CURVING, RAYMOND CUSACK, Eric M Colondres, Daniel E. Condon, Jack K. DeSalvo, Gary DeStefano, Anthony DiGiglio, Ryan Duffy, GERARD ERIT, Brian Gilligan, ABDELMONIM HAMDEH, Saleh Judah, Richard Latrecchia, Eza Laypan, Eladio Lugo, Paul Miccinilli, Brian Morgan, William Niebank, LOUIS PACELLI, ANTONIO PISTONE, Sean C. Reed, Timothy Tabor, David Tanis, Edgar Taylor re 58 MOTION for Discovery, 59 MOTION for Preliminary Injunction, 57 MOTION to Intervene (Attachments: # 1 Exhibit Attachment 1 - Certification of Ronald Altmann, # 2 Exhibit Attachment 2 - Email from NJ Civil Service Commission RE: Postponement of Sgt. Exam)(MURPHY, JOSEPH) (Entered: 02/27/2012)

03/01/2012
03/02/2012 03/02/2012 03/08/2012
03/08/2012 03/12/2012

64 Joint MOTION for Settlement /Final Entry of Consent Decree by UNITED STATES OF AMERICA. (Attachments: # 1 Appendix Memorandum in Support of Final Entry, # 2 Appendix Proposed Final Entry Order, # 3 Appendix Categories of Objections, # 4 Appendix List of Objectors, # 5 Appendix Exhs. 1-31, # 6 Exhs. 32-57, # 7 Exhs. 5879, # 8 Exhs. 80-109, # 9 Exhs. 110-135, # 10Exhs. 136-159, # 11 Exhs. 160-181, # 12 Exhs. 182-208, # 13 Exhs. 209-231, # 14 Exhs. 232-248, # 15 Exhs. 249-284, # 16 Exh. 285, part 1, # 17 Exh. 285, part 2, # 18 Exh. 285, part 3, # 19 Exhs. 286-324, # 20 Exhs. 325-361, # 21 Exhs. 362-391, # 22 Exhs. 392-417, # 23 Exhs. 418-432, # 24 Exhs. 433-447, # 25 Exhs. 448469)(HUSSAIN, VARDA) (Entered: 03/01/2012)
Set Deadline as to 64 Joint MOTION for Settlement /Final Entry of Consent Decree. Motion set for 4/2/2012 before Judge Katharine S. Hayden. The motion will be decided on the papers. No appearances required unless notified by the court. (sr, ) (Entered: 03/02/2012)
Reset Deadlines pursuant to consent decree filed on 11/22/11 as to 64 Joint MOTION for Settlement /Final Entry of Consent Decree. Motion with oral argument set for 3/12/2012 at 10:00 AM before Judge Katharine S. Hayden. (rg, ) (Entered: 03/02/2012)
65 MOTION for Extension of Time to File Response/Reply by RICHARD BOTBYL, Dean Barone, Francisco Brito, RYAN CURVING, RAYMOND CUSACK, Eric M Colondres, Daniel E. Condon, Jack K. DeSalvo, Gary DeStefano, Anthony DiGiglio, Ryan Duffy, GERARD ERIT, Brian Gilligan, ABDELMONIM HAMDEH, Saleh Judah, Richard Latrecchia, Eza Laypan, Eladio Lugo, Paul Miccinilli, Brian Morgan, William Niebank, LOUIS PACELLI, ANTONIO PISTONE, Sean C. Reed, Timothy Tabor, David Tanis, Edgar Taylor. (Attachments: # 1 Text of Proposed Order Proposed Order, # 2 Brief Letter Brief in Support of Motion)(MURPHY, JOSEPH) (Entered: 03/08/2012)
66 ORDER denying 58 Motion for Discovery; denying 59 Motion for Preliminary Injunction; denying 65 Motion for Extension of Time to File Response/Reply. Signed by Judge Katharine S. Hayden on 3/8/12. (rg, ) (Entered: 03/08/2012)
67 Minute Entry for proceedings held before Judge Katharine S. Hayden: Motion Hearing held on 3/12/2012 re 57 MOTION to Intervene filed by Brian Morgan, Richard Latrecchia, Dean Barone, Richard S Botbyl, Gary DeStefano, Eric M Colondres, Eladio Lugo, Ryan Duffy, Brian Gilligan, Daniel E. Condon, Eza Laypan, Paul Miccinilli, David Tanis, ANTONIO PISTONE, Sean C. Reed, William Niebank, Jack K.

03/23/2012 05/23/2012
06/12/2012 06/12/2012 06/12/2012 07/10/2012
07/17/2012 07/17/2012

DeSalvo, Timothy Tabor, Anthony DiGiglio, Saleh Judah, Francisco Brito, Edgar Taylor, 64 Joint MOTION for Settlement /Final Entry of Consent Decree filed by UNITED STATES OF AMERICA. Decision reserved. (Court Reporter/Recorder Ralph Florio.) (rg, ) (Entered: 03/13/2012)
68 Letter from U.S. Plaintiff Re: Objection Form and Exhibit Numbers. (Attachments: # 1 Objection from Kutiak)(LANDER, ESTHER) (Entered: 03/23/2012)
69 Transcript of Proceedings held on 3/12/12, before Judge Hayden. Court Reporter/Transcriber Ralph Florio (973-639-1817). Tape Number: Fairness Hearing. NOTICE REGARDING REDACTION OF TRANSCRIPTS: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this Transcript. Redaction Request due 6/13/2012. Redacted Transcript Deadline set for 6/25/2012. Release of Transcript Restriction set for 8/21/2012. (tjg, ) (Main Document, Corrected Transcript 69 replaced on 7/23/2012) (ma). (Entered: 05/23/2012)
70 ORDER denying 57 Motion to Intervene. Signed by Judge Katharine S. Hayden on 6/12/12. (rg, ) (Entered: 06/12/2012)
71 OPINION. Signed by Judge Katharine S. Hayden on 6/12/12. (rg, ) (Entered: 06/12/2012)
72 ORDER granting 64 Motion for Settlement. Signed by Judge Katharine S. Hayden on 6/12/12. (rg, ) (Entered: 06/12/2012)
73 NOTICE OF APPEAL as to 70 Order on Motion to Intervene, 72 Order on Motion for Settlement by RICHARD BOTBYL, Dean Barone, Francisco Brito, RYAN CURVING, RAYMOND CUSACK, Eric M Colondres, Daniel E. Condon, Jack K. DeSalvo, Gary DeStefano, Anthony DiGiglio, Ryan Duffy, GERARD ERIT, Brian Gilligan, ABDELMONIM HAMDEH, Saleh Judah, Richard Latrecchia, Eza Laypan, Eladio Lugo, Paul Miccinilli, Brian Morgan, William Niebank, LOUIS PACELLI, ANTONIO PISTONE, Sean C. Reed, Timothy Tabor, David Tanis, Edgar Taylor. Filing fee $ 455, receipt number 0312-4452669. The Clerk's Office hereby certifies the record and the docket sheet available through ECF to be the certified list in lieu of the record and/or the certified copy of the docket entries. (MURPHY, JOSEPH) (Entered: 07/10/2012)
74 Letter. (MURPHY, JOSEPH) (Entered: 07/17/2012)
75 TRANSCRIPT REQUEST by RICHARD BOTBYL, Dean Barone, Francisco Brito, RYAN CURVING, RAYMOND CUSACK, Eric M

07/17/2012 07/25/2012 07/31/2012 09/07/2012
09/28/2012 10/17/2012 12/06/2012 12/06/2012

Colondres, Daniel E. Condon, Jack K. DeSalvo, Gary DeStefano, Anthony DiGiglio, Ryan Duffy, GERARD ERIT, Brian Gilligan, ABDELMONIM HAMDEH, Saleh Judah, Richard Latrecchia, Eza Laypan, Eladio Lugo, Paul Miccinilli, Brian Morgan, William Niebank, LOUIS PACELLI, ANTONIO PISTONE, Sean C. Reed, Timothy Tabor, David Tanis, Edgar Taylor for proceedings held on March 12, 2012 before Judge Hayden.. (MURPHY, JOSEPH) (Entered: 07/17/2012)
"Finance Advised" re: application for refund DE#74. (sr, ) (Entered: 07/17/2012)
76 CLERK'S ORDER Refunding Fees to Joseph M. Murphy, Esq. Re: Notice of Appeal. Signed by Theresa Burnett, Chief Deputy Clerk (sr, ) (Entered: 07/25/2012)
Case reassigned to Magistrate Judge Patty Shwartz. Magistrate Judge M. A. Shipp no longer assigned to the case. (mn, ) (Entered: 07/31/2012)
77 USCA Case Number 12-2964 for 73 Notice of Appeal (USCA), filed by LOUIS PACELLI, Brian Morgan, ABDELMONIM HAMDEH, Richard Latrecchia, Dean Barone, RAYMOND CUSACK, Gary DeStefano, GERARD ERIT, Eric M Colondres, Eladio Lugo, Ryan Duffy, Brian Gilligan, Daniel E. Condon, Eza Laypan, Paul Miccinilli, David Tanis, ANTONIO PISTONE, Sean C. Reed, William Niebank, Jack K. DeSalvo, RICHARD BOTBYL, Timothy Tabor, RYAN CURVING, Anthony DiGiglio, Saleh Judah, Francisco Brito, Edgar Taylor. USCA Case Manager Stephanie/smw (Document Restricted Court Only) (ca3smw, ) (Entered: 09/07/2012)
78 NOTICE by UNITED STATES OF AMERICA of Attorney Withdrawal (HUSSAIN, VARDA) (Entered: 09/28/2012)
In response to the 10/17/12 inquiry - The conferences held on 3/3/11, 4/4/11, and 4/26/11 before the Hon. Michael A. Shipp were not held on the record and therefore no transcripts exist. (NR) (Entered: 10/17/2012)
79 Joint MOTION for Hearing on Individual Relief by UNITED STATES OF AMERICA. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit A, # 3 Exhibit B)(FUNK, HILARY) (Entered: 12/06/2012)
Set Deadline as to 79 Joint MOTION for Hearing on Individual Relief. Motion set for 1/7/2013 before Judge Katharine S. Hayden. The motion will be decided on the papers. No appearances required unless notified by the court. (sr, ) (Entered: 12/06/2012)

01/18/2013 03/12/2013 04/11/2013 04/26/2013
05/08/2013
06/13/2013 07/19/2013 07/19/2013 08/05/2013
03/05/2014

80 ORDER granting a fairness hearing on individual relief. Fairness hearing set for 5/8/2013 and 5/9/13 commencing at 9:00 AM. Signed by Judge Katharine S. Hayden on 1/18/13. (rg, ) (Entered: 01/18/2013)
81 NOTICE/OBJECTION by Keli Mainor-Oatman RE: individual relief entitled under the Consent Decree. (sr, ) (Entered: 03/19/2013)
Case Reassigned to Magistrate Judge Cathy L. Waldor. Magistrate Judge Patty Shwartz no longer assigned to the case. (aa, ) (Entered: 04/11/2013)
82 BRIEF Joint Response to Objections to the Relief Awards List (Attachments: # 1 Appendix Proposed Order, # 2 Appendix Amended Relief Awards List, # 3 Appendix Exhs. 1-25, # 4 Appendix Exhs. 26-50, # 5 Appendix Exhs. 51-63, # 6 Appendix Exhs. 6489)(FUNK, HILARY) (Entered: 04/26/2013)
83 Minute Entry for proceedings held before Judge Katharine S. Hayden: Motion Hearing held on 5/8/2013 re 79 Joint MOTION for Hearing on Individual Relief filed by UNITED STATES OF AMERICA. Motion granted. (Court Reporter/Recorder Ralph Florio.) (rg, ) (Entered: 05/10/2013)
84 USCA JUDGMENT: AFFIRMED as to 73 Notice of Appeal (USCA), filed by Francisco Brito, et al. (ca3smw) (Entered: 06/13/2013)
85 STIPULATION to Extend Time for Back Pay by UNITED STATES OF AMERICA. (FUNK, HILARY) (Entered: 07/19/2013)
86 STIPULATION AND ORDER granting 79 Motion extending time to process payment of back pay relief. Signed by Judge Katharine S. Hayden on 7/19/13. (sr, ) (Entered: 07/22/2013)
87 CERTIFIED ORDER of USCA in lieu of formal MANDATE as to 73 Notice of Appeal (USCA), filed by LOUIS PACELLI, Brian Morgan, ABDELMONIM HAMDEH, Richard Latrecchia, Dean Barone, RAYMOND CUSACK, Gary DeStefano, GERARD ERIT, Eric M Colondres, Eladio Lugo, Ryan Duffy, Brian Gilligan, Daniel E. Condon, Eza Laypan, Paul Miccinilli, David Tanis, ANTONIO PISTONE, Sean C. Reed, William Niebank, Jack K. DeSalvo, RICHARD BOTBYL, Timothy Tabor, RYAN CURVING, Anthony DiGiglio, Saleh Judah, Francisco Brito, Edgar Taylor (Attachments: # 1 Opinion - Affirmed)(ca3smw) (Entered: 08/05/2013)
Minute Entry for proceedings held before Judge Katharine S. Hayden: Status Conference held on 3/5/2014. (rg, ) (Entered: 03/05/2014)

04/10/2014 04/10/2014 10/02/2014 10/14/2014 10/14/2014 10/14/2014
10/15/2014
10/31/2014
11/10/2014
09/30/2015 09/30/2015 09/12/2016

88 OPINION. Signed by Judge Katharine S. Hayden on 4/10/14. (rg, ) (Entered: 04/10/2014)
89 ORDER on final relief award list. Signed by Judge Katharine S. Hayden on 4/10/14. (rg, ) (Entered: 04/10/2014)
90 MOTION to Amend/Correct 72 Order on Motion for Settlement by UNITED STATES OF AMERICA. (Attachments: # 1 Text of Proposed Order)(MEYER, VALERIE) (Entered: 10/02/2014)
91 ORDER modifying Second Amended Consent Decree. Signed by Judge Katharine S. Hayden on 10/14/14. (sr, ) (Entered: 10/14/2014)
92 TEXT ORDER vacating this court previous order dated 10/14/14(D.E.91). Ordered by Judge Katharine S. Hayden on 10/14/14. (rg, ) Modified on 10/14/2014 (rg). (Entered: 10/14/2014)
93 Amended MOTION to Amend/Correct 72 Order on Motion for Settlement by UNITED STATES OF AMERICA. (Attachments: # 1 Brief, # 2 Text of Proposed Order)(MEYER, VALERIE) (Entered: 10/14/2014)
Set Deadlines as to 93 Amended MOTION to Amend/Correct 72 Order on Motion for Settlement . Motion set for 11/17/2014 before Judge Katharine S. Hayden. The motion will be decided on the papers. No appearances required unless notified by the court. (sr, ) (Entered: 10/15/2014)
94 BRIEF in Opposition filed by NEW JERSEY CIVIL SERVICE COMMISSION, STATE OF NEW JERSEY re 93 Amended MOTION to Amend/Correct 72 Order on Motion for Settlement(Attachments: # 1 Declaration Connolly Declaration, # 2 Declaration Declaration of Service)(JESPERSEN, KEVIN) (Entered: 10/31/2014)
95 REPLY BRIEF to Opposition to Motion filed by UNITED STATES OF AMERICA re 93 Amended MOTION to Amend/Correct 72 Order on Motion for Settlement (Attachments: # 1 Exhibit A-N)(FUNK, HILARY) (Entered: 11/10/2014)
96 OPINION. Signed by Judge Katharine S. Hayden on 9/30/15. (rg, ) (Entered: 09/30/2015)
97 ORDER denying 93 Motion to Amend/Correct. Signed by Judge Katharine S. Hayden on 9/30/15. (rg, ) (Entered: 09/30/2015)
98 MOTION to Seal Brief in Support of Motion for Extension of Second Amended Consent Decree by UNITED STATES OF AMERICA.

(Attachments: # 1 Brief, # 2 Text of Proposed Order)(MEYER, VALERIE) (Entered: 09/12/2016)

09/12/2016

99 MOTION to Amend/Correct for Extension of Second Amended Consent Decree by UNITED STATES OF AMERICA. (Attachments: # 1 Text of Proposed Order)(MEYER, VALERIE) (Entered: 09/12/2016)

09/12/2016

100 Exhibit to 99 Motion to Amend/Correct, 98 Motion to Seal by UNITED STATES OF AMERICA. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(MEYER, VALERIE) (Entered: 09/12/2016)

09/13/2016

Set/Reset Deadlines as to 99 MOTION to Amend/Correct for Extension of Second Amended Consent Decree, 98 MOTION to Seal Brief in Support of Motion for Extension of Second Amended Consent Decree. Motion set for 10/17/2016 before Judge Katharine S. Hayden. Unless otherwise directed by the Court, this motion will be decided on the papers and no appearances are required. Note that this is an automatically generated message from the Clerk`s Office and does not supersede any previous or subsequent orders from the Court. (sr, ) (Entered: 09/13/2016)

09/30/2016

101 NOTICE of Appearance by SUSAN MARIE SCOTT on behalf of NEW JERSEY CIVIL SERVICE COMMISSION, STATE OF NEW JERSEY (SCOTT, SUSAN) (Entered: 09/30/2016)

10/03/2016

102 Cross MOTION to Seal Brief, with Exhibits A-D, and Declaration of Michael Johnson in Opposition to the United States Department of Justice's Motion to Extend the Second Amended Consent Decree by NEW JERSEY CIVIL SERVICE COMMISSION, STATE OF NEW JERSEY. (Attachments: # 1 Statement that no brief is necessary, # 2 Declaration of Susan M. Scott, # 3 Text of Proposed Order, # 4 Certificate of Service)(SCOTT, SUSAN) (Entered: 10/03/2016)

10/03/2016

103 BRIEF in Opposition filed by NEW JERSEY CIVIL SERVICE COMMISSION, STATE OF NEW JERSEY re 99 MOTION to Amend/Correct for Extension of Second Amended Consent Decree(Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Declaration of Michael Johnson)(SCOTT, SUSAN) (Entered: 10/03/2016)

10/03/2016

104 Exhibit to 103 Brief in Opposition to Motion, by NEW JERSEY CIVIL SERVICE COMMISSION, STATE OF NEW JERSEY. (Attachments: # 1 Exhibit E to the State's Brief in Opposition to the Department of Justice's Motion to Extend the Second Amended Consent Decree, # 2 Exhibit F to the State's Brief in Opposition to the Department of Justice's Motion to Extend the Second Amended Consent Decree,

# 3 Exhibit G to the State's Brief in Opposition to the Department of Justice's Motion to Extend the Second Amended Consent Decree, # 4 Exhibit H to the State's Brief in Opposition to the Department of Justice's Motion to Extend the Second Amended Consent Decree, # 5 Exhibit I to the State's Brief in Opposition to the Department of Justice's Motion to Extend the Second Amended Consent Decree, # 6 Exhibit J to the State's Brief in Opposition to the Department of Justice's Motion to Extend the Second Amended Consent Decree)(SCOTT, SUSAN) (Entered: 10/03/2016)

10/04/2016

Set/Reset Deadlines as to 102 Cross MOTION to Seal Brief, with Exhibits A-D, and Declaration of Michael Johnson in Opposition to the United States Department of Justice's Motion to Extend the Second Amended Consent Decree. Motion set for 10/17/2016 before Judge Katharine S. Hayden. Unless otherwise directed by the Court, this motion will be decided on the papers and no appearances are required. Note that this is an automatically generated message from the Clerk`s Office and does not supersede any previous or subsequent orders from the Court. (sr, ) (Entered: 10/04/2016)

10/04/2016 105 ORDER granting 98 Motion to Seal. Signed by Magistrate Judge Cathy L. Waldor on 10/4/16. (sr, ) (Entered: 10/04/2016)

10/11/2016

106 MOTION to Seal Reply Brief in Support of Motion for Extension of Second Amended Consent Decree by UNITED STATES OF AMERICA. (Attachments: # 1 Statement of No Brief, # 2Declaration, # 3 Text of Proposed Order)(MEYER, VALERIE) (Entered: 10/11/2016)

10/11/2016

107 Exhibit to 106 Motion to Seal, 99 Motion to Amend/Correct by UNITED STATES OF AMERICA. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(MEYER, VALERIE) (Entered: 10/11/2016)

10/12/2016

Set/Reset Deadlines as to 106 MOTION to Seal Reply Brief in Support of Motion for Extension of Second Amended Consent Decree. Motion set for 11/7/2016 before Judge Katharine S. Hayden. Unless otherwise directed by the Court, this motion will be decided on the papers and no appearances are required. Note that this is an automatically generated message from the Clerk`s Office and does not supersede any previous or subsequent orders from the Court. (sr, ) (Entered: 10/12/2016)

10/17/2016

108 Letter from Deputy Attorney General Susan M. Scott seeking leave to file a sur-reply on behalf of the State in regard to the United States' motion to extend/modify the Second Amended Consent Decree re 103 Brief in Opposition to Motion, 107 Exhibit (to Document), 99 MOTION to Amend/Correct for Extension of Second Amended Consent Decree. (SCOTT, SUSAN) (Entered: 10/17/2016)

10/17/2016

109 MOTION to Seal Document 108 Letter, by NEW JERSEY CIVIL SERVICE COMMISSION, STATE OF NEW JERSEY. (Attachments: # 1 Statement that no brief is necessary, # 2 Declaration of Susan M. Scott, # 3 Text of Proposed Order, # 4 Certificate of Service)(SCOTT, SUSAN) (Entered: 10/17/2016)

10/18/2016

Set/Reset Deadlines as to 109 MOTION to Seal Document 108 Letter, . Motion set for 11/21/2016 before Judge Katharine S. Hayden. Unless otherwise directed by the Court, this motion will be decided on the papers and no appearances are required. Note that this is an automatically generated message from the Clerk`s Office and does not supersede any previous or subsequent orders from the Court. (sr, ) (Entered: 10/18/2016)

10/18/2016 110 ORDER granting 109 Motion to Seal Document. Signed by Magistrate Judge Cathy L. Waldor on 10/18/16. (sr, ) (Entered: 10/18/2016)

10/18/2016

111 MOTION to Seal Letter in Opposition to Defendants' Request for SurReply by UNITED STATES OF AMERICA. (Attachments: # 1 Statement of No Brief, # 2 Declaration, # 3 Text of Proposed Order)(MEYER, VALERIE) (Entered: 10/18/2016)

10/18/2016 112 Exhibit to 108 Letter, by UNITED STATES OF AMERICA. (MEYER, VALERIE)

NOTICE TO COUNSEL: Counsel is advised that pursuant to Local Civil Rule 5.3(c)(2), a single, consolidated motion to seal shall be filed within 14 days following the completed briefing of the materials sought to be sealed, or within 14 days following the date on which the last of such materials was filed under temporary seal
if the motion is resolved, unless otherwise directed by the Court. (Entered: 10/18/2016)

10/19/2016

Set/Reset Deadlines as to 111 MOTION to Seal Letter in Opposition to Defendants' Request for Sur-Reply. Motion set for 11/21/2016 before Judge Katharine S. Hayden. Unless otherwise directed by the Court, this motion will be decided on the papers and no appearances are required. Note that this is an automatically generated message from the Clerk`s Office and does not supersede any previous or subsequent orders from the Court. (sr, ) (Entered: 10/19/2016)

11/03/2016 113 ORDER granting 106 Motion to Seal. Signed by Magistrate Judge Cathy L. Waldor on 11/3/16. (sr, ) (Entered: 11/03/2016)

11/14/2016

114 TEXT ORDER: The State of New Jersey and the United States have filed submissions (D.E. 108 and 112 ) that are substantive enough for the Court to deem both parties submissions as constituting a sur-reply and response. The Court will not entertain further submissions.So

Ordered by Judge Katharine S. Hayden on 11/14/2016. (mfg) (Entered: 11/14/2016)

11/21/2016 115 ORDER granting 102 Motion to Seal. Signed by Magistrate Judge Cathy L. Waldor on 11/21/16. (cm ) (Entered: 11/22/2016)

11/28/2016 116 ORDER granting 111 Motion to Seal. Signed by Magistrate Judge Cathy L. Waldor on 11/28/16. (sr, ) (Entered: 11/28/2016)

05/17/2017

117 TEXT ORDER: On June 15, 2017 at 10:00 am, counsel for all parties are directed to appear before the undersigned for oral argument on the (d.e. 99 ) MOTION to Amend/Correct for Extension of Second Amended Consent Decree by UNITED STATES OF AMERICA. All counsel must confirm their attendance via a letter filed on ECF by the end of business day on 5/18/2016. So Ordered by Judge Katharine S. Hayden on 5/17/2017. (mfg) (Entered: 05/17/2017)

05/18/2017

118 NOTICE of Appearance by MELANIE ROSE WALTER on behalf of NEW JERSEY CIVIL SERVICE COMMISSION, STATE OF NEW JERSEY (WALTER, MELANIE) (Entered: 05/18/2017)

05/18/2017 119 Letter. (WALTER, MELANIE) (Entered: 05/18/2017)

05/18/2017 120 Letter from United States re: attendance at June 15, 2017 oral argument re 117 Order,. (MEYER, VALERIE) (Entered: 05/18/2017)

06/15/2017

121 Minute Entry for proceedings held before Judge Katharine S. Hayden: Motion Hearing held on 6/15/2017 re 99 MOTION to Amend/Correct for Extension of Second Amended Consent Decree filed by UNITED STATES OF AMERICA. Opinion RESERVED. (Court Reporter RALPH FLORIO.) (mfg, ) (Entered: 06/27/2017)

06/30/2017 122 OPINION. Signed by Judge Katharine S. Hayden on 6/30/17. (mfg, ) (Entered: 06/30/2017)

06/30/2017 123 ORDER denying 99 Motion to Amend/Correct.Signed by Judge Katharine S. Hayden on 6/30/2017. (mfg, ) (Entered: 06/30/2017)

04/06/2018

124 First MOTION to Redact and Seal Transcript/Digital Recording for the hearing on 6/15/2017. by NEW JERSEY CIVIL SERVICE COMMISSION. (Attachments: # 1 Text of Proposed Order, # 2Brief)(WALTER, MELANIE) Modified on 4/6/2018 (mfg, ). (Entered: 04/06/2018)

04/06/2018

Set/Reset Deadlines as to 124 First MOTION to Redact and Seal Transcript/Digital Recording 69 Transcript,, . Motion set for 5/7/2018 before Judge Katharine S. Hayden. Unless otherwise directed by the

Court, this motion will be decided on the papers and no appearances are required. Note that this is an automatically generated message from the Clerk`s Office and does not supersede any previous or subsequent orders from the Court. (sr, ) (Entered: 04/06/2018)

05/08/2018

125 TEXT ORDER: All applications for sealing materials must comply with Local Civil Rule 5.3(c). ECF No. 124 shall be terminated with leave to refile a compliant motion. So Ordered by Magistrate Judge Cathy L. Waldor on 5/8/18. (tjg, ) (Entered: 05/08/2018)

05/22/2018

126 Letter from DOJ and CSC re: Motion to Amend and Redact, per instruction. (Attachments: # 1 Text of Proposed Order, # 2 Statement)(WALTER, MELANIE) (Entered: 05/22/2018)

05/22/2018 127 Exhibit to 126 Letter by All Defendants. (Attachments: # 1 Exhibit)(WALTER, MELANIE)

NOTICE TO COUNSEL: Counsel is advised that pursuant to Local Civil Rule 5.3(c)(2), a single, consolidated motion to seal shall be filed within 14 days following the completed briefing of the materials sought to be sealed, or within 14 days following the date on which the last of such materials was filed under temporary seal
if the motion is resolved, unless otherwise directed by the Court. (Entered: 05/22/2018)