832 F.

2d 811

53 Fair Empl.Prac.Cas. 703,

45 Empl. Prac. Dec. P 37,737
VULCAN PIONEERS, INC., William Thomas, Joseph Head, Charles
Lige, Ernest Smith, Benjamin Josephs, Ronald Heath
v.
The NEW JERSEY DEPARTMENT OF CIVIL SERVICE, Ralph P. Shaw,
Chief Examiner of the Department of Civil Service,
et al., Plaintiffs-Intervenors.
UNITED STATES of America
v.
STATE OF NEW JERSEY, et al.
v.
Robert M. SHERIDAN, et al., Intervenors.
UNITED STATES of America
v.
STATE OF NEW JERSEY, et al., Intervenors.
UNITED STATES of America and James W. Stewart, Intervenor,
v.
STATE OF NEW JERSEY, et al., Intervenors.
UNITED STATES of America
v.
STATE OF NEW JERSEY, et al., Intervenors.
UNITED STATES of America
v.
STATE OF NEW JERSEY, et al.
v.
HOBOKEN FIRE OFFICERS ASSOCIATION LOCAL 1076, I.A.F.F.,
AFL-CIO, Intervenor.
Appeal of STATE OF NEW JERSEY, in No. 86-5928.
Appeal of the HOBOKEN FIRE OFFICERS ASSOCIATION, LOCAL 1076,
I.A.F.F., AFL-CIO, Intervenor in No. 86-5929.

Nos. 86-5928, 86-5929.

United States Court of Appeals,
Third Circuit.
Argued Aug. 7, 1987.

Decided Nov. 10, 1987.

W. Carey Edwards, Atty. Gen. of New Jersey, Eugene J. Sullivan
(argued), James J. Ciancia, Asst. Attys. Gen., Mark J. Fleming, Deputy
Atty. Gen., Trenton, N.J., for appellant State of N.J.
Stephen J. Edelstein, Charles Naselsky (argued), Laura Bertollo, Donald
M. Onorato, Schwartz, Pisano, Simon & Edelstein, Livingston, N.J., for
appellants Hoboken Fire Officers Ass'n, Local 1076.
Wm. Bradford Reynolds, Asst. Atty. Gen., Marie K. McElderry (argued),
David K. Flynn, Jessica Dunsay Silver, Miriam R. Eisenstein, U.S. Dept.
of Justice, Appellate Section, Civil Rights Div., Washington, D.C., for
appellees.
John H. Watson, Jr., Corp. Counsel, East Orange, N.J., for City of East
Orange.
Anthony D. Rinaldo, Jr., Rinaldo & Rinaldo, Elizabeth, N.J., for
intervenor New Jersey State Firemen's Mut. Benevolent Ass'n.
Before SEITZ, MANSMANN and GREENBERG, Circuit Judges.
OPINION OF THE COURT
SEITZ, Circuit Judge.

The State of New Jersey appeals the judgment of the district court invalidating
the State Civil Service test for promotions to the rank of fire captain1 for fire
departments and the subsequent order of the court that the eligibility lists based
on the results of this test could not be used for any purpose. The Hoboken Fire
Association, Local 1076 (Local 1076) appeals the district court's rejection of its
proposed plan for interim relief. We have jurisdiction pursuant to 28 U.S.C.
Sec. 1291 (1982).

I.
2

At issue in this case is whether the test administered by the New Jersey
Department of Civil Service (Department) to rank candidates for promotions to
the position of fire captain in twelve New Jersey cities satisfies the
requirements of the consent decree entered into by the various parties to this
litigation.

On October 4, 1977, the United States filed suit against the State of New
Jersey, an official of the New Jersey State Civil Service Commission, and
twelve municipalities alleging that the defendants were engaging in a pattern or
practice of discrimination on the basis of race and national origin with respect
to hiring and promotion in the fire departments of the respective
municipalities.2 The parties entered into a consent decree on May 30, 1980,
which was approved by the district court. This decree did not contain a finding
of discrimination but did obligate the State defendants "to undertake affirmative
action to increase substantially the proportion of black and Hispanic personnel
on their respective fire departments" and to "review the composition of the
current selection process for appointments to ranks above the level of
firefighter to ensure job relatedness and with the goal of eliminating adverse
impact on black and Hispanic applicants in accordance with Title VII of the
Civil Rights Act of 1964, as amended, and the Guidelines issued thereunder."
Under the decree, the State defendants were required to conduct job analyses of
all promotional classifications "in a manner consistent with the Uniform
Guidelines of Employee Selection Procedures, 28 C.F.R. 50.14, and other
professionally accepted standards...." The United States was granted the right to
object to any selection process it found to have the purpose or effect of
discrimination against minority applicants and, if necessary, to move for
resolution in the district court.

Pursuant to the decree, the Department conducted job analyses of the fire
captain position. A written, multiple-choice examination based on these
analyses was developed. On seven occasions from June 1981 through June
1984, the State administered this test for the defendant municipalities to
firefighters who satisfied the eligibility requirement of three years of service.
Applicants who scored above the minimum cut-off were ranked on the
eligibility list according to their final average score, which was calculated based
on their score on the written test (80%) and on their seniority and service record
(20%). When a municipality requested candidates for promotion, the state
certified the number of individuals equal to the number of vacancies plus two,
in rank order based on the final average scores. The municipality could promote
any of the certified candidates, with certain exceptions not at issue here.

In March 1983, the United States raised objections to the test, alleging that the
results exhibited adverse impact under the four-fifths rule of the Uniform
Guidelines.3 In May 1984, after informal efforts to resolve its objections had
failed, the United States filed a motion seeking an order from the district court
enforcing the consent decree by enjoining the use of promotional lists generated
by these tests and by requiring the use in the future of a test that is job related or
that has no adverse impact. After trial, the court entered a judgment for the

United States and urged the parties to reach an agreement concerning a manner
for utilizing the existing lists pending the development of new lists generated
from a valid test. Vulcan Pioneers, Inc. v. New Jersey Dep't of Civil Serv., 625
F.Supp. 527 (D.N.J.1985).
6

The parties, however, were unable to agree on an interim course of action, and
various proposals were submitted to the district court. After a hearing, the court
rejected all the proposals and instead enjoined the use of the existing
promotional lists and ordered each municipality to continue rotating acting
captains in lieu of making either provisional or permanent appointments. United
States v. State of New Jersey, 658 F.Supp. 9 (D.N.J.1986).

These appeals followed.

II.
8

This action involves a motion by the United States for the enforcement of a
consent decree. While a consent decree "must further the objectives of the law
upon which the complaint was based, ... the parties' consent animates the legal
force of a consent decree." Local Number 93, Int'l Ass'n of Firefighters v. City
of Cleveland, --- U.S. ----, 106 S.Ct. 3063, 3077, 92 L.Ed.2d 405 (1986)
(citations omitted). Thus, we must examine the language of the consent decree
to determine the obligations and duties undertaken by the various parties.

In the consent decree, the State defendants committed themselves to ensuring

that the selection process for promotions would be job related, in accordance
with both Title VII and the Uniform Guidelines. Our review must, therefore,
begin by evaluating the district court's finding of fact that the selection process
implemented by the State was not job related as defined by the Uniform
Guidelines.4 All the parties agree that our review of the district court's findings
is governed the "clearly erroneous" standard. We will reverse findings of fact
by the district court only if they are found to be clearly erroneous. "A finding is
'clearly erroneous' when although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite and firm conviction that a
mistake has been committed." United States v. United States Gypsum Co., 333
U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). We now address the
State's contention that the district court's finding that the promotional test in
question was not job related is clearly erroneous.

10

The Supreme Court has stated that a test is job related if it is "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 or jobs for which candidates are being evaluated.' "
Albemarle Paper Co. v. Moody, 422 U.S. 405, 431, 95 S.Ct. 2362, 2378, 45
L.Ed.2d 280 (1975) (quoting the Equal Employment Opportunity
Commission's Guidelines on Employee Selection Procedures, 29 C.F.R. Sec.
1607.4(c) (1974)). Under the Uniform Guidelines, a test may be valid if it is
based on criterion-related validity studies, content validity studies, or construct
validity studies. 28 C.F.R. Sec. 50.14(5)(A). The State attempts to justify its test
solely as being content valid. To satisfy the content validity standard, evidence
must be presented showing that "the selection procedure is representative of
important aspects of performance on the job for which the candidates are to be
evaluated." Id. Sec. 50.14(5)(B). The Technical Standards of the Uniform
Guidelines establish requirements for proving content validity. Specifically, the
study performed should:
11
[include]
an analysis of the important work behavior(s) required for successful
performance and their relative importance and, if the behavior results in work
product(s), an analysis of the work product(s). Any job analysis should focus on the
work behavior(s) and the tasks associated with them. If work behavior(s) are not
observable, the job analysis should identify and analyze those aspects of the
behavior(s) that can be observed and the observed work products. The work
behavior(s) selected for measurement should be critical work behavior(s) and/or
important work behavior(s) constituting most of the job.
12

Id. Sec. 50.14(14)(C)(2).

13

The promotional test at issue in this case is based upon job analyses performed
by New Jersey's fire examiner in 1981. To obtain accurate descriptions of the
duties and functions of and requirements for the fire captain position, subject
matter experts (SMEs) from eleven of the twelve municipalities attended two
separate sessions. At the first session, the SMEs developed task statements
describing the activities performed by fire captains and rated the time spent on
each task and the criticality (consequence of error) of each. The SMEs
delineated the knowledges, abilities, and skills (KASOs) required for a fire
captain to perform these tasks, rated the KASOs in terms of importance, and
indicated whether each was appropriate for qualifying and ranking candidates.

14

For the second session, the fire examiner developed the standard task
statements and KASOs, but the basic procedures were similar to those
previously followed. Based on the results of these two sessions, the fire
examiner summarized by city the information obtained. Using the aggregate
data, the fire examiner determined the number of questions concerning each

KASO that would be included on the state-administered examination (the

composition of the test was the same for each city regardless of any differences
expressed by a particular city's SMEs regarding any aspect of the KASOs)
based on a formula that incorporated several factors. For a variety of reasons,
however, some KASOs were not tested. Using textbooks recommended by the
SMEs, the fire examiner then wrote test questions, often paraphrasing the
wording of specific texts.
15

In 1984, the State hired an independent consultant to determine the validity of

the tests being challenged by the United States. He reviewed the work
performed during the initial job analyses and several studies of firefighters
conducted for other governmental agencies; he also conducted his own study of
the abilities necessary to perform as a fire captain and whether these abilities
were in fact tested by the challenged examination. The State's expert concluded
that the state-administered tests satisfied the requirements of content validity
established in the Uniform Guidelines.

16

After weighing the evidence presented at trial, the district court concluded that
the job analyses performed by the State fire examiner in 1981 did not satisfy the
requirements set forth in the Uniform Guidelines or other professional
standards. In reaching this conclusion, the district court made detailed findings
regarding shortcomings in the job analyses that were performed. Among the
district court's findings were that the task statements were too general, thus
precluding an evaluation of their relative importance and criticality; that the
KASO statements were also too general and failed to consider the degree of
proficiency that a fire captain must demonstrate; that the validity of certain
KASOs was doubtful because of the large discrepancies in importance assigned
these KASOs by the SMEs from various cities (and the fact that these
discrepancies were neither investigated nor explained); and that many important
aspects of a fire captain's duties and activities were omitted from the task
statements. The district court also found important flaws in the test itself,
including that the test rewarded test-taking ability rather than the knowledges,
abilities, and skills necessary for the position; that the test focused on a
candidate's ability to recall data from particular texts rather than his knowledge
or abilities; that test questions were ambiguously phrased; and that questions
tested knowledge of terminology rather than of the underlying concepts.
Furthermore, the court determined that the tests in question were not
appropriate for ranking candidates.

17

The district court also found that the analysis performed by the State's expert in
1984 failed to establish the validity of the tests. The court cited five
shortcomings in the methodology employed in support of its conclusion that the

procedures utilized were flawed.

18

In arguing that the district court's findings are clearly erroneous, the State does
not present evidence that particular findings are clearly erroneous; rather its
argument centers on the contention that the court should have assigned more
weight to the testimony of the State's expert and less to that of the expert of the
United States. In making its findings, the district court expressly discounted the
testimony of the State's expert whereas it directly credited testimony of the
expert who testified on behalf of the United States. Weighing the credibility of
the testimony presented at trial and of the witnesses themselves is the province
of the trier of fact. This court will not overturn such findings except in
exceptional circumstances. Nothing brought to the attention of this court nearly
rises to that level.

19

For these reasons, we conclude that the findings of the district court are not
clearly erroneous and that the district court was correct in entering a judgment
in favor of the United States on its motion to enforce the consent decree.

III.
20

We next address (1) the State's contention that the district court erred in
enjoining the affected municipalities from making either provisional or
permanent appointments to the position of fire captain based on the eligibility
lists produced from the invalidated exam and (2) Local 1076's argument that
the court committed reversible error by refusing to adopt its proposed plan. Our
standard of review is abuse of discretion.

21

In fashioning interim relief, the district court sought to satisfy three goals: (1) to
eliminate discriminatory effects; (2) not to bestow any advantage or impose any
disadvantage on any individual before a new, valid test is administered; and (3)
to insure the safety of citizens and their property in the affected cities. The court
first considered and rejected various proposals that had been submitted to it,
each of which had met with objections from at least one other party. The court
concluded that enjoining the use of the existing lists for the purpose of making
appointments and ordering the municipalities to continue to rotate acting fire
captains was the most appropriate means for satisfying these objectives.

22

The State contends that proposals that permit the making of some permanent
appointments from existing lists while preserving at least an equal number of
vacancies to be filled from the lists based on the administration of a new test
and that are coupled with "make whole" relief (i.e., full back pay and seniority

for minority candidates who pass the new exam) are a reasonable
accommodation of the conflicting interests. Similarly, Local 1076 contends that
the district court erred in not adopting its plan for the City of Hoboken whereby
the top twelve candidates on the existing eligibility list would be permanently
appointed as fire captains and the only minority candidate eligible to take the
previous test would be promoted to fire captain and would receive full back pay
and seniority were he to score above the cut-off level on the valid test. The
district court noted that such programs would grant non-minority candidates the
benefits flowing from an invalid exam while imposing solely on minority
applicants the obligation of taking the new exam. The court specifically refused
to "place the remedial burden, almost exclusively, on the minority group."
United States v. New Jersey, 658 F.Supp. at 13. This argument strongly
supports the relief granted by the district court.
23

The State and Local 1076 further argue that the interim relief ordered by the
district court punishes and is unfair to those candidates who, by virtue of their
high ranking on the eligibility lists, expected promotions. Candidates who
scored well on an invalid exam do not have an "absolute right" to or even a
"legitimate firmly rooted expectation" of the promotion. See Johnson v.
Transportation Agency, U.S. ----, 107 S.Ct. 1442, 1455, 94 L.Ed.2d 615 (1987).
Furthermore, candidates not promoted still retain their jobs and remain eligible
to compete for these very same promotions when the new examination is
administered. Any burdens placed on these candidates simply do not rise to an
impermissible level.5

24

Given the reasoning advanced by the district court in support of the interim
relief that it ordered6 and the failure of appellants to prove that any legal
deficiencies exist in the relief granted or that a legal right is being denied to the
non-minority candidates, we conclude that the relief ordered by the district
court did not constitute an abuse of discretion.

IV.
25

In light of the foregoing, the orders of the district court will be affirmed.

Although municipalities refer to the first-level supervisory ranks for firefighters

as either fire lieutenant or fire captain, the state has determined that the
positions are equivalent. The same selection procedure was used during the
period 1981-1984 in making promotions to both positions, with only one minor
exception. We shall refer to both positions as fire captain

This case was originally consolidated with a private class action, but the district
court dismissed certain individual plaintiffs who had failed to file complaints
with the EEOC in a timely manner and who had failed to allege intentional
discrimination. Vulcan Pioneers, Inc. v. New Jersey Dep't of Civil Serv., No.
950-73 (D.N.J. Feb. 23, 1979), aff'd sub nom. Hood v. New Jersey Dep't of
Civil Serv., 680 F.2d 955 (3rd Cir.1982)

"A selection rate for any race, sex, or ethnic group which is less than four-fifths
( 4/5) (or eighty percent) 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." 28
C.F.R. Sec. 50.14(4)(D)

Because the State defendants are obligated under the specific language of the
consent decree to develop a selection procedure that is job related, we need not
address the issue of whether the United States presented sufficient evidence to
prove a prima facie case that the test in question had an adverse impact on
minority candidates, which is the preliminary hurdle that must be passed in
actions alleging violations of either Title VII or the equal protection clause

We find Local 1076's contention that the relief granted constitutes a raceconscious remedy to be totally at odds with the facts of the case. We therefore
find it inappropriate to apply strict scrutiny in evaluating the relief granted by
the district court

Furthermore, the district court did not totally preclude the possibility of
alternative interim relief. The court exhibited the necessary flexibility when it
specifically stated its willingness to consider any new proposals for interim
relief that are submitted after having obtained the consent of the parties