1998 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-13-1998

Newark NAACP v. City of Bayonne

Precedential or Non-Precedential:

Docket 96-5848

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Recommended Citation

"Newark NAACP v. City of Bayonne" (1998). 1998 Decisions. Paper 8.

http://digitalcommons.law.villanova.edu/thirdcircuit_1998/8
Filed January 13, 1998 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 96-5848 

NEWARK BRANCH, NATIONAL ASSOCIATION FOR THE 

ADVANCEMENT OF COLORED PEOPLE; JERSEY CITY 

BRANCH, NATIONAL ASSOCIATION FOR THE 

ADVANCEMENT OF COLORED PEOPLE; NEW JERSEY 

STATE CONFERENCE, NATIONAL ASSOCIATION FOR 

THE ADVANCEMENT OF COLORED PEOPLE; THE 

NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF 

COLORED PEOPLE, 

 Appellants 

v. 

CITY OF BAYONNE, NEW JERSEY 

On Appeal from the United States District Court 

for the District of New Jersey 

(D.C. Civil Action No. 90-cv-00684) 

Argued July 22, 1997 

Before: SCIRICA, ROTH and WEIS, Circuit Judges 

(Filed January 13, 1998) 
 JOSHUA N. ROSE, ESQUIRE 

 (ARGUED) 

 DAVID L. ROSE, ESQUIRE 

 Rose & Rose, P.C. 

 1835 K Street, N.W., Suite 900 

 Washington, D.C. 20006-1203 

 JONATHAN M. HYMAN, ESQUIRE 

 Rutgers University School of Law 

 Constitutional Litigation Clinic 

 15 Washington Street, Room 338 

 Newark, New Jersey 07102 

 Attorneys for Appellants 

 TARQUIN J. BROMLEY, ESQUIRE 

 (ARGUED) 

 Apruzzese, McDermott, Mastro & 

 Murphy 

 25 Independence Boulevard 

 P.O. Box 112 

 Liberty Corner, New Jersey 07938 

 Attorney for Appellee 

OPINION OF THE COURT 

SCIRICA, Circuit Judge. 

This Title VII case involves an interpretation of a consent 

order that removed a residency requirement for municipal 

employees. 

In 1989, the National Association for the Advancement of 

Colored People, its New Jersey State Conference, and its 

Newark and Jersey City Branches, filed suit in district 

court against the City of Bayonne, New Jersey. The NAACP 

alleged, inter alia, that Bayonne unlawfully discriminated in 

hiring municipal employees, principally police officers and 

firefighters, in violation of Title VII of the Civil Rights Act of 

1964, 42 U.S.C. SS 2000e-2000e-17 (West 1994 & Supp. 

1997) by requiring its employees to reside in Bayonne. 

Bayonne is a "civil service" municipality 1 and hires 

_________________________________________________________________ 

1. Pursuant to N.J. Stat. Ann. SS 11A:9-1 and 11A:9-2, a New Jersey 

municipality can choose whether or not it wants to be subject to the 

 2 
employees for competitive positions (police andfirefighters) 

on the basis of their performance on a state-wide civil 

service examination administered by the New Jersey 

Department of Personnel.2 Applicants for non-competitive 

positions are not hired on the basis of their performance on 

an examination. 

On January 31, 1991, the parties entered into a 

stipulation and order settling the lawsuit. Bayonne agreed 

to suspend its residency requirement and to affirmatively 

recruit African American applicants. The stipulation expired 

in four years, but Bayonne remained under a continuing 

obligation to ensure that its recruitment and hiring 

practices were lawful and nondiscriminatory. 

Four years later, in May 1995, because the removal of 

the residency requirement failed to increase--and in the 

case of police officers decreased--the representation of 

African Americans among its workforce, Bayonne reinstated 

the residency requirement. The NAACP sought injunctive 

relief. In a bench trial, the district judge denied the request 

for injunctive relief, finding the NAACP failed to establish a 

causal nexus between the residency requirement and its 

allegedly disparate impact on African Americans. The 

NAACP now appeals.3 

We hold the district court was not clearly erroneous in 

concluding the NAACP failed to prove the residency 

requirement unlawfully discriminated against African 

American applicants for police and firefighter positions. But 

the district court made no finding with respect to Bayonne's 

hiring for non-competitive jobs, which do not require a civil 

service examination. We will affirm in part and reverse in 

part. 

_________________________________________________________________ 

state's Civil Service Act. 

2. The NAACP has not made the New Jersey Department of Personnel a 

party to this lawsuit and is not challenging the legality of the 

examination. 

3. The Honorable H. Lee Sarokin presided over this matter in 1991. After 

Judge Sarokin was appointed to this court, the matter was assigned to 

the Honorable William H. Walls, United States District Judge for the 

District of New Jersey. 

 3 
I. 

Bayonne4 hires its municipal employees in accordance 

with New Jersey's Civil Service Act, N.J. Stat. Ann. S 11A:1- 

1 et seq. (West 1993 & Supp. 1996). New Jersey has two 

divisions of civil service jobs: competitive and noncompetitive. N.J. Stat. Ann. S 11A:3-2 (West 1993). Civil 

service regulations require that candidates for competitive 

positions, including police and fire-department jobs, apply 

through the New Jersey Department of Personnel. For these 

jobs, the New Jersey Department of Personnel administers 

examinations and promulgates a list of eligible candidates 

based on the results of the examination. N.J.A.C.S 4A:4-1.1 

(1995); S 4A:4-4.2 (1995). The New Jersey Department of 

Personnel ranks the candidates on the list, called a 

certification, in order of their test scores. N.J. Stat. Ann. 

S 11A:4-1 (West 1993); N.J.A.C. S 4A:4-3.2 (1997). When 

Bayonne wants to hire workers for competitive positions, it 

requests a list of a number of candidates sufficient to 

satisfy its hiring needs. N.J.A.C. S 4A:4-4.1 (1996). The New 

Jersey Department of Personnel then selects an appropriate 

number of candidates from the master list in accordance 

with the residence requirements of Bayonne and forwards 

the certification to Bayonne. N.J.A.C. S 4A:4-3.2. After 

receiving the certification, the municipality-- for the first 

time in the process -- learns the names, addresses and 

rank of eligible candidates. At the same time, the New 

Jersey Department of Personnel notifies eligible candidates 

they have been certified and instructs them to inform 

Bayonne if they are interested in the job. N.J.A.C. S 4A:4- 

4.2(b). If a candidate indicates his or her interest, Bayonne 

commences its own screening process to ensure that the 

candidate meets the age, citizenship, health and character 

standards established by state law and is otherwise suited 

to serve.5 Otherwise, with limited exceptions not applicable 

_________________________________________________________________ 

4. Bayonne is located in the southern end of Hudson County, New 

Jersey, bordered on the north by Jersey City. Newark lies ten miles 

away. African Americans make up 4.7% of Bayonne's population. African 

Americans make up 14.4% of the population of Hudson County and 

40.6% of neighboring Essex County. 

5. Candidates for the police and fire departments must also submit to a 

drug test, a thorough background check, a physical examination, and an 

interview with the chief of the police or fire department. 

 4 
here, Bayonne must hire the candidates in the exact rank 

order presented by the New Jersey Department of 

Personnel. N.J.A.C. S 4A:4-4.8 (1996). 

Candidates for non-competitive entry level positions, 

such as laborer and clerk typist, are hired directly by 

Bayonne. Most electrical and blue collar positions are 

promoted from the laborer and clerk typist level. Certain 

non-promotional, non-uniform positions are classified as 

open competitive and are filled from certified lists created 

by the New Jersey Department of Personnel. Many of these 

jobs traditionally have been filled on a provisional basis 

while the New Jersey Department of Personnel posts the 

vacancies and certifies a list of eligible candidates based on 

examinations. Frequently, although not always, the 

provisional appointee is appointed on a permanent basis. 

See J.A. at 1.27. 

Before 1991, Bayonne limited its municipal hiring to 

Bayonne residents only, an option permitted by the Civil 

Service Act. See N.J. Stat. Ann. S 40A:9-1.3 (1993)

(Municipalities may "require [that] . . . all officers and 

employees employed by the local unit . . . be bonafide 

residents therein."). 

As we have noted, on February 20, 1990, the NAACPfiled 

suit in the United States District Court for the District of 

New Jersey against Bayonne, asserting its residency

requirement unlawfully discriminated against African 

Americans in violation of Title VII. Before trial, the parties 

settled the case by entering into the stipulation. The 

stipulation provided that Bayonne "shall not engage in any 

employment practice which unlawfully discriminates 

against individuals on the basis of their race in recruitment 

or hiring or in other terms and conditions of employment." 

J.A. at 2.5. The stipulation articulated its purpose: "to 

ensure that the recruitment and hiring practices of

Bayonne are lawful and non-discriminatory, and to ensure 

that no one is unlawfully disadvantaged by its recruitment 

and hiring practices." Id. 

Under the stipulation, Bayonne, without admitting 

wrongdoing, promised to: (1) replace its "Bayonneresidency" requirement with a "New Jersey-residency" 

 5 
requirement for police officers and fire-fighters;6 (2) 

affirmatively recruit African American applicants; and (3) 

refrain from discriminatory employment practices in the 

future. Recruitment efforts included "paid radio and 

newspaper advertising and outreach in Newark, East 

Orange, and Jersey City, with the goal of attracting black 

applicants in numbers reflecting their availability in the job 

category being filled." J.A. at 2.5-2.16. 

Bayonne remained under a continuing obligation to 

refrain from discriminatory recruiting and hiring practices. 

The stipulation provided that "[a]t the conclusion of four (4) 

years from the date this Stipulation is executed . .. the 

requirements of this Stipulation shall cease to bind 

[Bayonne] . . . except that [Bayonne] . . . shall continue to 

ensure that the recruitment and hiring practices of

Bayonne are lawful and non-discriminatory." J.A. at 2.16. 

In the event of Bayonne's non-compliance, the NAACP

could enforce the stipulation upon "a clear and convincing 

showing that defendant's failures or omissions to meet the 

terms of this stipulation were not minimal or isolated but 

were substantial." J.A. at 2.14. During the four-year term, 

the NAACP never availed itself of this provision. 

On March 8, 1991, Bayonne amended its residency 

ordinance in accordance with the terms of the stipulation. 

Bayonne also increased recruitment efforts aimed at African 

Americans. The record demonstrates that the Bayonne

Police Department engaged in an extensive program to 

recruit Bayonne residents for the civil service examination 

which included outreach to African Americans living in 

Bayonne. In addition, the Deputy Chief of the fire 

department led an intensive effort to recruit and train 

Bayonne residents, particularly African Americans, for 

firefighter jobs. J.A. at 1.11-1.12, 1.35. 

It is uncontested, however, that after four years, minority 

representation did not increase. Significantly, as the NAACP 

stated both in the district court and in oral argument 

before this court, minority representation among police 

_________________________________________________________________ 

6. For other positions, the stipulation provided that Bayonne merely had 

to relax its residency requirement. Non-residents who took municipal 

jobs had to move into Bayonne within six months of their employment. 

 6 
officers actually decreased. The record demonstrates that 

the number of African American candidates referred by the 

Department of Personnel to Bayonne for police positions 

decreased from 3.4% to 1% during the moratorium.7 

On May 3, 1995, "having concluded that the stipulated 

settlement with appellants did not increase the number of 

the City's black employees," Bayonne reenacted its 

residency requirement.8 Brief of Appellee at 13. As noted, 

on May 9, 1996, the NAACP asked for temporary and 

permanent injunctive relief, claiming Bayonne's 

reinstatement of the residency requirement violated the 

stipulation's prohibition against future employment

discrimination. 

The district court reopened the case and on July 8, 1996, 

denied the NAACP's application for a preliminary 

injunction. Subsequently, in November 1996, the district 

court conducted a bench trial. The parties submitted 

extensive stipulations of fact, and the NAACP presented 

witness testimony. Much of the NAACP's evidence was

statistical, including the following:9 

 - Bayonne is approximately 4.7% African American. 

 Hudson County is approximately 14.4% African

 American, and neighboring Essex County is 

 approximately 40.6% African American. 

 - Of the employees hired during the four-year 

 moratorium, 2.6% of the non-residents were African 

_________________________________________________________________ 

7. We cannot make a similar comparison for firefighters because the 

parties have not provided us with statistics on Bayonne's hiring before 

the residency requirement was lifted. The parties' joint appendix does 

tell us from 1992-1995, 97 persons were certified to Bayonne as eligible 

for employment as firefighters. Bayonne rejected one, 3 declined 

appointment, 10 failed to respond to the notice of certification, and 9 

asked to be deferred for later consideration. Of the 81 hired, 2 (2.5%) 

were African American. J.A. at 1.22-1.23. 

8. The residency requirement became effective May 24, 1995. 

9. These statistics were compiled in various years. We specify the years 

only when relevant. 

 7 
 American, and 5.5% of the Bayonne residents were 

 African American.10 

 - During the four-year moratorium, the percentage of 

 newly-hired police officers who were African

 American decreased. In February 1990, 3.4% (5 of 

 145) of those listed as eligible for police employment 

 were African American, and 20% (2 of 10) of those 

 hired were African American. In comparison, in 

 January 1992, 8.2% (77 of 933) of those listed as 

 eligible for police employment were African 

 American, and 1.1% (4 of 362) of those certified for 

 hiring were African American. After the moratorium 

 expired, in September 1996, 6.6% of newly-hired 

 police officers were African American. 

 - In Bayonne, 14.3% of employees of large, private- 

 sector employers are African American. In Hudson 

 County, 17.2% of employees of large, private-sector 

 employers are African American.11 

 - 11.1% of New Jersey's civilian labor force is African 

 American. 21.2% of New Jersey's government 

 employees are African American. 

The NAACP also offered expert witness David Griffin, who 

analyzed statistics, compared the racial composition of 

Bayonne with both the surrounding counties and the entire 

State of New Jersey, and opined that the residency 

requirement was discriminatory. 

After hearing the NAACP's evidence, the district court 

granted Bayonne's Motion for Judgment under Fed. R. Civ. 

P. 52(c).12 The court found the NAACP failed to prove a 

_________________________________________________________________ 

10. African American representation in Bayonne's municipal workforce 

was 3.5% before the four-year moratorium. The NAACP contends during 

the four-year moratorium, 5% of the municipal employees hired were 

African American. J.A. at 1.13-1.14. But the NAACP does not use this 

statistic in its briefs in support of its prima facie case. And at trial, 

the 

NAACP's expert stated that he "would be surprised if that [difference] 

was statistically significant." J.A. at 1.207. 

11. The parties obtained these numbers from reports of the Equal 

Employment Opportunity Commission on the racial composition of 

private employer establishments with over 100 employees. 

12. Fed. R. Civ. P. 52(c) provides, in relevant part: "If during a trial 

without a jury a party has been fully heard on an issue and the court 
 8 
causal nexus between Bayonne's residency requirement 

and the low percentage of African American municipal 

employees. The district judge ruled orally: 

 I am constrained to dismiss this case because there is 

 no factual basis for what we have had by way of 

 opinions given by the plaintiff's expert, David Griffin, 

 an expert in labor market analysis. 

 As I discussed with [plaintiff's counsel] Mr. Rose and 

 I incorporate by reference, we have an order entered 

 January 31, 1991 by the then District Judge Sarokin 

 approving and incorporating therein a stipulation by 

 the parties. Originally the Newark Branch of the 

 NAACP, together with other branches of the 

 organization had brought suit against the City of 

 Bayonne alleging and claiming that under Title VII, 

 that the members of the plaintiff and members of the 

 black race in general had been discriminated against in 

 employment by the municipality of Bayonne. 

 The stipulation sought to resolve the differences by the 

 parties and between the parties by providing that a 

 residency requirement, which had been the main 

 thrust of the complaint by the plaintiffs against the 

 defendant, would be removed, and it was so done in, I 

 believe, March 1991. 

 Thereafter, for the life of the stipulation, which was 

 four years from the date of execution by Judge 

 Sarokin, there was no such residency requirement. 

 During that period, the hope for an increase in black 

 municipal government employment, it is agreed, did 

 not improve. 

 It should be also noted that during this period there 

 has been no history, through the plaintiffs anyway in 

 their case, of there being any complaint by the 

 plaintiffs of any failure of the defendant municipality to 

_________________________________________________________________ 

finds against the party on that issue, the court may enter judgment as 

a matter of law against that party with respect to a claim or defense that 

cannot under the controlling law be maintained or defeated without a 

favorable finding on that issue...." 

 9 
 abide by the terms of the stipulation, although there 

 was a mechanism for such overview and review with 

 the Court having jurisdiction retained to it to entertain 

 any criticisms of what was being done or not being 

 done by Bayonne. 

 In any event, we have had for the last day and a half 

 evidence produced by David Griffin primarily which 

 consists, with all due respect, of statistical possibilities 

 relying upon data wherein he assumes that Hudson 

 County is the employment market by which 

 comparisons shall be made as to whether blacks are 

 being disparately impacted by the residency ordinance 

 that was recently reinstated by the municipality of 

 Bayonne in the spring of this year, 1996. 

 With due respect to the doctor, his opinions, as he 

 admits in one circumstance, are nothing more than his 

 expression of common sense. They are speculative. 

 They involve speculative contingencies and possibilities 

 without any evidential basis. I can't be more specific 

 because he was not more specific. 

 He speaks about the failure of blacks to be hired, but 

 there is no evidence as to why they were not hired. He 

 speaks of the non-seeking of employment with Bayonne 

 by blacks and being much lower than that in 

 surrounding Hudson County towns, but we have no 

 evidence as to why that is. And regardless of how 

 important and how vital the purpose of Title VII is, it, 

 too, just like any other law is dependent upon factual 

 evidence from which judges and lawyers and parties 

 can make meaningful decisions. That is the problem 

 with this case, we have no factual evidence.

 We have well intentioned statistical platitudes. For 

 example, much is made of a 1996 police employment 

 examination, which has a small number of persons of, 

 as I said, the black race, as being qualified, but that 

 list was not prepared nor administered, nor reviewed 

 by the defendant in the municipality. It was prepared 

 by the New Jersey State Department of Personnel, so 

 to try to speak of visiting discrimination, whether 

 intentionally or inadvertently or institutionally, at the 

 10 
 doorstep of the municipality is not warranted factually, 

 and that is why I dismiss this case, because there is 

 nothing to support it factually. 

J.A. at 1.251-1.255. The NAACP now appeals. 

II. 

The district court had jurisdiction under 28 U.S.C.

SS 1331 and 1343 (1993) because this case arises under 

Title VII, and we have jurisdiction under 28 U.S.C. S 1291 

(1993). 

The district court found the NAACP failed to meet the 

burden imposed by the stipulation of demonstrating noncompliance because it did not prove the residency 

requirement caused a disparate impact in hiring. Causation 

presents a question of fact. Kachmar v. Sungard Data Sys. 

Inc., 109 F.3d 173, 179 (3d Cir. 1997); Thomas v. City of 

Omaha, 63 F.3d 763, 765 (8th Cir. 1995) (reviewing Title 

VII causation determination as a finding of fact). 

Federal Rule of Civil Procedure 52(a) dictates the 

appropriate standard of review. In a bench trial, the court 

"shall find the facts and state separately its conclusions of 

law thereon" and those "[f]indings of fact... shall not be set 

aside unless clearly erroneous." Id. The NAACP requests 

application of a plenary standard of review. But the 

applicable authority holds that the district court's findings 

of intentional discrimination or disparate impact shall be 

reviewed under the clearly erroneous standard. See 

Anderson v. City of Bessemer City, 470 U.S. 564, 566 

(1985) ("In Pullman Standard v. Swint, 456 U.S. 273 (1982), 

we held that a district court's finding of discriminatory 

intent in an action brought under Title VII . . . is a factual 

finding that may be overturned on appeal only if it is clearly 

erroneous."); Villanueva v. Carere, 85 F.3d 481, 485-86 

(10th Cir. 1996) ("[W]e may reverse the trial court's finding 

of no discriminatory intent only if it is clearly erroneous 

. . . . [T]his standard of review [is] well established."); 

Bernard v. Gulf Oil Corp., 890 F.2d 735, 739 (5th Cir. 1989) 

("The standard of review for such a decision is whether, 

looking at the record as a whole, the district court was 

clearly erroneous in its determination that there was no 

 11 
purposeful discrimination and that the action resulting in 

disparate impact was justified by legitimate business 

reasons.") (citation omitted); Keyes v. Secretary of the Navy, 

853 F.2d 1016, 1019 (1st Cir. 1988) ("A district court's 

finding concerning intent in an employment discrimination 

action is a factual finding within the `clearly erroneous' 

rubric.") (citation omitted); Chambers v. Omaha Girls Club, 

Inc., 834 F.2d 697, 702 (8th Cir. 1987) (citation omitted). 

Of course, this case lies one step removed from a 

traditional Title VII analysis. The district court evaluated 

whether Bayonne fulfilled its obligations under the

stipulation to refrain from employment practices that 

violated Title VII. Focusing on Bayonne's performance 

under the stipulation, the district court assessed whether 

Bayonne complied and made factual findings. We review 

factual findings for clear error. 

Harrison v. Metro. Gov't of Nashville and Davidson 

County, 80 F.3d 1107 (6th Cir. 1996), cert. denied, 117 S. 

Ct. 169 (1996) supports this standard of review. In

Harrison, a discharged public employee filed a contempt 

citation against his former government employer, alleging it 

failed to comply with a stipulation resulting from race 

discrimination litigation. The United States Court of 

Appeals for the Sixth Circuit applied the following standard 

of review when examining the district court's finding of 

contempt: 

 In order to hold the defendants in civil contempt, a 

 district court must find that the plaintiff established by 

 clear and convincing evidence that the defendants 

 violated the court's prior order. In fact, eachfinding of 

 a violation of the order must be supported by clear and 

 convincing evidence. . . . We review the district court's 

 finding of civil contempt for an abuse of discretion. A 

 district court may abuse its discretion when it relies on 

 clearly erroneous findings of fact. 

Id. at 1112-13 (citations omitted). 

Accordingly, we review for clear error. 

 Under this standard, a finding is `clearly erroneous 

 when the reviewing court on the entire evidence is left 

 12 
 with the definite and firm conviction that a mistake 

 has been committed.' This standard does not permit 

 the reviewing court to conduct a de novo review of the 

 evidence, but it does allow the court to consider 

 whether there is enough evidence in the record to 

 support the factual findings of the district court. This 

 review is more deferential with respect to 

 determinations about the credibility of witnesses, and 

 when the district court's decision is based on testimony 

 that is coherent and plausible, not internally 

 inconsistent and not contradicted by external evidence, 

 there can almost never be a finding of clear error. 

United States v. Igbonwa, 120 F.3d 437, 440-41 (3d Cir. 

1997) (citations omitted), petition for cert. filed (Oct. 23, 

1997) (No. 97-6518).13 

III. 

We must "examine the language of the [stipulation] to 

determine the obligations and duties undertaken by the 

various parties." Vulcan Pioneers, Inc. v. New Jersey Dep't 

of Civil Serv., 832 F.2d 811, 814 (3d Cir. 1987). The 

language of the stipulation is clear: Bayonne "shall 

continue to ensure that the recruitment and hiring 

practices of Bayonne are lawful and non-discriminatory." 

The parties agree this clause requires Bayonne to comply 

with Title VII, 42 U.S.C. S 2000e-2(a), which makes it 

unlawful to "limit . . . applicants for employment in any 

way which would deprive or tend to deprive any individual 

of employment opportunities . . . because of such 

individual's race . . . ." Title VII prohibits not only 

intentional discrimination, but also "disparate impact" 

discrimination, i.e., "employment practices, adopted without 

a deliberately discriminatory motive, [which] may in 

operation be functionally equivalent to intentional

_________________________________________________________________ 

13. The NAACP maintains the district court failed to make the requisite 

findings of fact. Under Robinson v. Lehman, 771 F.2d 772 (3d Cir. 1985), 

the district court must set forth findings of fact sufficient to allow 

"the 

appellate court, on review, [to] ascertain the basis for [its] decision." 

Id. 

at 780. Except with respect to Bayonne's hiring of non-competitive 

employees, the district court satisfied this requirement. 

 13 
discrimination." Watson v. Fort Worth Bank & Trust, 487 

U.S. 977, 987 (1988). 

In order to establish a prima facie case of disparate 

impact discrimination, the plaintiff must demonstrate that 

application of a facially neutral standard has caused a 

"significantly discriminatory hiring pattern." Newark 

Branch, NAACP v. Town of Harrison, 940 F.2d 792, 798 (3d 

Cir. 1991). See also Wards Cove Packing Co., Inc. v. 

Antonio, 490 U.S. 642, 657 (1989) (holding plaintiffs must 

"demonstrate that the disparity they complain of is the 

result of one or more of the employment practices that they 

are attacking here, specifically showing that each 

challenged practice has a significantly disparate impact on 

employment opportunities for whites and nonwhites."). The 

evidence in these cases usually focuses on statistical 

disparities. Harrison, 940 F.2d at 798. 14 

To prove causation through statistical evidence alone, the 

statistics must be "of a kind and degree sufficient to show 

that the practice in question has caused the exclusion of 

applicants for jobs or promotions because of their 

membership in a protected group. . . . [S]tatistical 

disparities must be sufficiently substantial that they raise 

such an inference of causation." Watson, 487 U.S. at 994- 

95. See also McNeil v. McDonoush, 648 F.2d 178, 182 (3d 

Cir. 1981) (causation will be proven only if the statistics do 

not require speculation by the court). The Supreme Court 

has emphasized that the statistics must be relevant to the 

discrimination alleged. See Hazelwood School Dist. v. United 

States, 433 U.S. 299, 313 n.20 (1977). "The`proper 

comparison [is] between the racial composition of [the atissue jobs] and the racial composition of the qualified . . . 

population in the relevant labor market.' " Wards Cove, 490 

U.S. at 650-51 (citations omitted). 

_________________________________________________________________ 

14. Once the plaintiff proves its prima facie case, the burden shifts to 

the 

defendant to prove a business justification for the challenged practice. 

It 

is then up to the plaintiff to discredit any business justification 

asserted 

(or to suggest a viable alternative to the challenged practice which would 

reduce the disparate impact). Harrison, 940 F.2d at 798. Burden shifting 

never occurred in this case, because the court held plaintiff failed to 

prove its prima facie case. 

 14 
The district court found the statistical evidence offered by 

the NAACP was insufficient to prove causation. 15 

Specifically, it held the NAACP did not prove the residency 

requirement discriminated against African Americans. At 

oral argument the NAACP conceded the New Jersey civil 

service examination was a likely cause of the disparity.16 As 

the Court of Appeals for the Fifth Circuit held in 

considering a challenge to an employment test: 

 The plaintiffs contend that th[e] disparity results both 

 from testing and the use of subjective criteria, yet they 

 offer no method from which this Court can ascertain 

 whether a significant part of this disparity results from 

 testing. The plaintiffs simply have not shown that 

 testing, independent of other factors that may affect 

 the racial balance of the workforce, is causally related 

 to discrimination in the number of blacks hired or 

 promoted. The causal requirement recognizes that 

 under representation of blacks might result from any 

 number of factors, and it places an initial burden on 

 the plaintiff to show that the specific factor challenged 

 under the disparate impact model results in the 

 discriminatory impact. The plaintiffs, by failing to 

 isolate the discriminatory effect of the practice they 

 challenged, did not meet this burden. 

Carroll v. Sears, Roebuck & Co., 708 F.2d 183, 189-90 (5th 

Cir. 1983). 

The NAACP contends it has proven causation. Although 

its position is not entirely clear, it seems to make two 

separate arguments. First, the NAACP argues the residency 

requirement reduces the percentage of African Americans 

on the list of eligible candidates. Responding to the district 

court's request to produce its best evidence, counsel for the 

NAACP said: "If [Bayonne has] the residency requirement 

_________________________________________________________________ 

15. The NAACP contends the district court improperly held statistics are 

an improper form of evidence. We disagree. The district court held that 

the statistics in this case were insufficient, and expressed no opinion 

whether they constituted "proper" evidence. 

16. Counsel for the NAACP acknowledged, "Clearly the test has a 

disparate impact, no question about it." The NAACP argues that 

although the test is one cause, the residency requirement is another. 

 15 
they hire from the 6 percent black list. If they don't have 

the residency requirement, they might hire from an 11 

percent black list or 15 percent black list." 17 J.A. at 1.238. 

By referring to the "list," the NAACP apparently means the 

list of applicants who took and received a passing grade on 

the law enforcement examination administered by the New 

Jersey Department of Personnel in January 1996. 18 

But this argument ignores the process by which Bayonne 

selects police officers. That 15% or 30% of those taking and 

passing the test are African American bears little 

relationship to the racial composition of the list of 

candidates ultimately certified to Bayonne. Except for the 

residency requirement, Bayonne does not have control over 

the list. The New Jersey Department of Personnel certifies 

the list to Bayonne, ranking the applicants in order of their 

test scores. N.J. Stat. Ann. 11A:4-1; N.J.A.C. 4A:4-3.2. 

With limited exceptions not applicable here, Bayonne 

cannot choose from a "pool" of qualified candidates but 

_________________________________________________________________ 

17. In its brief, the NAACP argues that Bayonne would have hired police 

officers in 1996 from a list of eligibles that was over 30% African 

American if it had no residence requirement. 

18. As we have noted, statistics often form the basis of the prima facie 

case in disparate impact cases. See Harrison, 940 F.2d at 798 (citations 

omitted). In Wards Cove, the Supreme Court emphasized that "the 

`proper comparison [is] between the racial composition of the [at-issue] 

jobs and the racial composition of the qualified ... population in the 

relevant labor market.' " 490 U.S. at 651 (citations omitted). The Court 

noted the possibility of using other statistics. See Id. at 651 

("Alternatively, in cases where such labor market statistics will be 

difficult if not impossible to ascertain, we have recognized that certain 

other statistics--such as measures indicating the racial composition of 

`otherwise qualified applicants' for at-issue jobs--are equally probative 

for this purpose."). And this court has looked to other statistics in 

disparate impact cases, see Green v. USX Corp., 896 F.2d 801, 805, but 

not when more probative statistics were available. The NAACP cites no 

authority, and we can find none, that supports the use of these 

particular statistics to set out a prima facie case of disparate impact 

discrimination under Title VII, particularly where the NAACP had 

available to it and made use of the labor market statistics that form the 

proper basis of a disparate impact case under Wards Cove. We express 

no opinion on whether under the appropriate circumstances such 

statistics can form the proper basis of a prima facie case under Title 

VII. 

 16 
must hire the candidates presented by the New Jersey 

Department of Personnel according to rank. N.J.A.C. 4A:4- 

4.8. Bayonne cannot waive civil-service requirements for 

any applicant for a job governed by the civil service system. 

N.J.A.C. 4A:10-2.1. Significantly, when Bayonne removed 

the residency requirement, the number of African American 

candidates referred to it did not increase and even

decreased. The NAACP acknowledges that African American 

representation on the certified list decreased. As noted, the 

record demonstrates that the number of African American 

candidates referred by the Department of Personnel to 

Bayonne for police positions decreased from 3.4% to 1% 

during the moratorium.19 

The NAACP's second argument involves a comparison 

between the racial composition of what it asserts to be the 

labor market and the racial composition of Bayonne's 

workforce. While defining the relevant labor market

precisely is usually necessary, we can also look to the 

general population of the Bayonne area if it is an adequate 

proxy.20 See Wards Cove, 490 U.S. at 651 n.6 (citations 

omitted) ("[W]here `figures for the general population might 

. . . accurately reflect the pool of qualified job applicants,' 

we have even permitted plaintiffs to rest their prima facie 

cases on such statistics. . . .").21 We found statistics on the 

general population sufficient to prove causation in Harrison, 

_________________________________________________________________ 

19. As we have noted, the parties have not provided us with similar 

comparative statistics for firefighters. According to the parties' joint 

appendix, however, from 1992-1995, of the 81 firefighters hired, 2 (2.5%) 

were African American. J.A. at 1.22-1.23. 

20. The district court characterized the NAACP's definition of Bayonne's 

labor market as "speculative." As our analysis will show, we do not need 

to decide whether the NAACP properly defined the labor market. 

21. We assume arguendo that the general population of the greater 

Bayonne area is the relevant labor market. But we note that looking to 

the general population is not necessarily sufficient in situations like 

this 

one where the claim involves jobs with "special qualifications". See 

Hazelwood School Dist. v. United States, 433 U.S. 299, 307-308 (1977) 

("When special qualifications are required tofill particular jobs, 

comparisons to the general population (rather than to the smaller group 

of individuals who possess the necessary qualifications) may have little 

probative value."). 

 17 
940 F.2d at 792, where the NAACP sued the Town of 

Harrison claiming its residency requirement excluded 

African Americans from municipal employment. The Town 

of Harrison is similar to Bayonne -- it contains a low 

percentage of African American residents, and it sits in 

Hudson County. Following a bench trial, we upheld 

judgment for the NAACP, citing with approval the district 

court's reasoning: 

 [t]he geographical areas from which Harrison draws 

 employees includes its own County of Hudson as well 

 as Bergen, Essex and Union counties. . . . It would be 

 hard to conclude that among the very substantial 

 number of black workers in the four county labor 

 market there are not large numbers of persons 

 qualified to serve as police officers, firefighters, clerk 

 typists and laborers . . . . [W]here Harrison across the 

 board has no black employees and where the total 

 work force in [the four-county area] has at least 

 214,747 black persons, disparity is at least suggested. 

Id. at 799.22 

But there are important differences between Harrison and 

this case. First, the statistical evidence in Harrison was 

extremely probative. Before suit commenced, no African 

American person had ever held a uniformed or nonuniformed municipal position even though African 

American representation among Harrison's private 

employers was 22.1%. Harrison, 940 F.2d at 796. 

Furthermore, the only evidence presented in Harrison 

were projections based on statistics; here there is direct 

evidence consisting of hiring percentages of African 

American applicants during the four years in which 

Bayonne removed its residency requirement. Statistics "are 

not irrefutable; they come in infinite variety and, like any 

_________________________________________________________________ 

22. In Harrison, the court apparently did not consider the impact of the 

civil service examination because the parties did not raise it. On appeal, 

Harrison argued: (1) that the relevant labor market should be defined as 

the entire State of New Jersey; and (2) that it had legitimate business 

justifications sufficient to satisfy its burden under Title VII. Harrison 

did 

not dispute the accuracy of the plaintiffs' statistical analysis. See 

Harrison, 940 F.2d at 799-800. 

 18 
other kind of evidence, they may be rebutted. In short, their 

usefulness depends on all of the surrounding facts and 

circumstances." International Bhd. of Teamsters v. United 

States, 431 U.S. 324, 340 (1977). In Title VII cases, we 

often rely on statistical evidence because direct evidence of 

the effect of a particular employment practice is not 

available. In Harrison, we concluded that the data 

presented indicated that among "the `vast black labor force 

in Harrison's labor market, there would be a large number 

of black persons qualified to serve and wishing to serve' in 

each category of municipal employment in Harrison." 940 

F.2d at 889. In this case, no projection is necessary 

because there is direct evidence of the impact of the 

challenged employment practice. Under the 1991 

stipulation, Bayonne removed the residency requirement for 

four years, and minority representation did not increase 

and even decreased for police officers. Faced with that 

record, we believe that the district court did not commit 

clear error in finding that the NAACP had failed to prove 

causation. 

The NAACP contends we should not consider the results 

of the four-year moratorium and the evidence that the 

"bottom line" racial statistics did not improve, citing 

Connecticut v. Teal, 457 U.S. 440 (1982). But Teal did not 

hold that the "bottom line" is irrelevant; it held that an 

employer cannot avoid Title VII liability by manipulating the 

"bottom line" to compensate for racial discrimination in 

hiring or promotions. In Teal, employees of the Department 

of Income Maintenance of the State of Connecticut sued 

their employer, alleging that a promotion-eligibility 

examination was racially biased. The employer, in order to 

compensate for the low percentage of minority employees 

who passed the examination, selected a disproportionately 

high number of those minorities for promotion. The Court 

held the high minority promotion rate did not negate the 

discriminatory impact of the examination. "The suggestion 

that disparate impact should be measured only at the 

bottom line ignores the fact that Title VII guarantees these 

individual respondents the opportunity to compete equally 

with white workers on the basis of job-related criteria." Id. 

at 451. 

 19 
Teal suggests that a subsequent affirmative action 

program cannot "redeem" discriminatory conduct that

produces disparate results. See Id. at 452 ("respondents' 

claim of disparate impact from the examination, a pass-fail 

barrier to employment opportunity, states a prima facie 

case of employment discrimination under S 703(a)(2) despite 

their employer's nondiscriminatory `bottom line,' and that 

`bottom line' is no defense to this prima facie case under 

S 703(h)"). Here, the district court found no evidence of 

either disparate impact or racial discrimination. 

Furthermore, the NAACP presented no evidence that 

Bayonne manipulated the "bottom line" results of the fouryear moratorium. 

The NAACP's reading of Teal -- that we must ignore the 

bottom line -- is also inconsistent with Hazelwood and its 

progeny. Those cases appear to point to the "bottom line" to 

establish a prima facie case. Specifically, they state the 

"proper comparison [is] between the racial composition of 

[the at-issue jobs] and the racial composition of the 

qualified persons in the labor market." Wards Cove, 490 

U.S. at 650 (citations omitted). 

The plaintiff must, of course, do more than point to the 

"bottom line" to establish a prima facie case. The Supreme 

Court has held that a plaintiff must also prove causation. 

This was made clear when, seven years after Teal, the 

Supreme Court held: 

 a Title VII plaintiff does not make out a case of 

 disparate impact simply by showing that, `at the 

 bottom line,' there is racial imbalance in the work 

 force. As a general matter, a plaintiff must demonstrate 

 that it is the application of a specific or particular 

 employment practice that has created the disparate 

 impact under attack. Such a showing is an integral 

 part of the plaintiff 's prima facie case in a disparate- 

 impact suit under Title VII. 

Wards Cove, 490 U.S. at 657. The district court here 

concluded the NAACP's statistical evidence failed to prove 

how reinstituting the residency requirement would cause a 

decrease in minority representation. 

 20 
In finding that the NAACP failed to show causation, the 

district court speculated that the civil service examination 

may be the cause of Bayonne's low hiring rate of African 

Americans. The court noted: "much is made of a 1996

police employment examination, which has a small number 

of persons of . . . the black race, as being qualified, but that 

list was not prepared or administered, nor reviewed by the 

defendant." The NAACP itself acknowledged to the district 

court: "When the residency requirement was lifted, [black 

applicants] were knocked out by the [police] exam. We 

believe this also occurred in the fire exam. . . . The test is 

administered by the Department of Personnel. We are not 

asking the Court to do anything about the test." J.A. at 

1.66. 

The district court found the NAACP failed to furnish 

evidence of a causal relationship between the residency 

requirement and the disparity in hiring. As we have

discussed, the evidence presented -- that the percentage of 

African American municipal employees did not increase 

during the four-year moratorium and even decreased for 

police officers -- indicates that the district court did not 

commit clear error when it found insufficient evidence of 

causation. See Vulcan, 832 F.2d at 816 (finding district 

court did not commit clear error when it found statistical 

evidence flawed and unconvincing). 

IV. 

As we have noted, Bayonne hires employees for both 

competitive and non-competitive jobs. The district court 

focused its analysis almost entirely on hiring for 

competitive jobs. In granting Bayonne's Rule 52 motion, the 

court pointed to the civil service examination as the 

probable cause of the alleged disparity and noted that the 

examination is administered by the New Jersey Department 

of Personnel, not Bayonne.23 

_________________________________________________________________ 

23. The court noted the test "was prepared by the New Jersey 

Department of Personnel, so to try to speak of visiting discrimination, 

whether intentionally or inadvertently or institutionally, at the doorstep 

of the municipality is not warranted factually, and that is why I dismiss 

this case, because there is nothing to support it factually." 

 21 
But Bayonne hires candidates for the non-competitive 

jobs, like laborer and clerk typist, directly and appears to 

have complete control over the process. Candidates for 

these jobs do not have to take and pass the New Jersey 

civil service examination. Furthermore, the residency 

requirement for these positions was merely relaxed so that 

non-residents who were hired had to move into Bayonne 

within six months of their hiring. The district court made 

no separate finding as to what impact, if any, this had on 

Bayonne's hiring of African Americans and what impact the 

reinstitution of that requirement has had on opportunities 

for African Americans to work for Bayonne in noncompetitive jobs. 

Under Rule 52(a), the district court shall makefindings 

of fact. Although there is some evidence on the record 

whether Bayonne discriminates in hiring non-competitive 

employees, the district court made no findings. On this 

record, we are unable to determine whether the NAACP has 

established a prima facie case of discrimination under Title 

VII in the City's hiring of non-competitive employees. We 

will remand this matter to the district court. 

V. 

For the foregoing reasons, we will affirm in part, reverse 

in part, and remand for proceedings consistent with this 

opinion. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 22