29 Fair Empl.prac.cas. 65, 29 Empl. Prac.dec. P 32,843hood, George Jr., on Behalf of Himself and a Class of Otherssimilarly Situated, Appellant in No. 80-2179, v. New Jersey Department of Civil Service, New Jersey Civilservice Commission, and City of Newark.andvulcan Pioneers, Inc., William Thomas, Joseph Head, Charleslige, Ernest Smith, Benjamin Josephs, Ronaldheath, Appellants in No. 80-2609, v. the New Jersey Department of Civil Service, Ralph P. Shaw,chief Examiner of the Department of Civil Service, the Newjersey Civil Service Commission, S. Howard Woodson,president of the Civil Service Commission, Thomas Deluca,john Holden, Matthias Rodriguez and Charles Walther,commissioners of the Civil Service Commission, the City Ofnewark, New Jersey, a Municipal Corporation, John P.caulfield, Director of the Newark Fire Department, 680 F.2d 955 (3d Cir. 1982)

These two appeals involve allegations of racial discrimination in the hiring and promotion of firefighters in Newark, New Jersey.¹  Plaintiffs assert that defendants have violated 42 U.S.C. § 1981 (1976) and 42 U.S.C. § 2000e et seq. (1978) ("Title VII") by promulgating and using a Civil Service examination which resulted in a disproportionate number of black and Hispanic applicants being excluded from positions in the fire department. The district court dismissed the Title VII claims because plaintiffs had failed to file charges with the Equal Employment Opportunity Commission ("EEOC") within the statutorily-prescribed period. Summary judgment was entered for defendants on the remaining claims because plaintiffs had not alleged the presence of discriminatory intent. We have held these appeals under advisement, pending our decisions in Croker v. The Boeing Co., 662 F.2d 975 (3d Cir. 1981) and Bronze Shields, Inc. v. New Jersey Department of Civil Service, 667 F.2d 1074 (3d Cir. 1981). In light of these recent decisions,²  we will affirm the conclusions of the district court.

FACTS

The City of Newark uses the New Jersey Civil Service examination to determine initial eligibility for hiring and promotions in the fire department. The Civil Service examinations at issue are administered on a statewide basis; they are not limited to Newark residents. Between 1972 and 1976, the City of Newark hired and promoted firemen on the basis of these test results; those who scored highest were hired (or promoted) first. New Jersey municipalities were prohibited by law from granting any preference to municipal residents in firefighter appointments.

The names of those individuals who successfully completed the examination and met minimum qualifications were placed by the Civil Service on an eligibility list with placement determined by test results. This roster was subject to established veterans' preference requirements.³  Once a particular roster had been promulgated, each applicant was notified as to whether he or she had passed the examination as well as the position he or she held on the roster.

PROCEDURAL HISTORY

Vulcan Pioneers (Heath)

In 1973, a complaint was filed in federal court by Vulcan Pioneers, Inc., alleging discrimination against blacks and Hispanics in the hiring and promotion of firefighters in Newark, New Jersey, in violation of 42 U.S.C. §§ 1981, 1983 (1976), and the thirteenth and fourteenth amendments. Two sub-classes were certified: blacks and Hispanics who were not hired because of discriminatory practices, and blacks and Hispanics not promoted because of discriminatory practices.

Ronald Heath, a black firefighter with the City of Newark since 1963, had competed in a promotional test for which an eligibility list was compiled on July 4, 1972, with an expiration date of July 3, 1975. Heath failed the examination. The last appointments made from the list were on June 30, 1975.

On July 27, 1976, Heath filed a complaint with the EEOC. He asserted that the New Jersey Department of Civil Service and the State Civil Service Commission administered hiring and promotional examinations for Newark firefighter positions which discriminated against blacks and Hispanics. He received a right-to-sue letter in April 1977, and the original complaint filed by Vulcan Pioneers was subsequently amended on January 6, 1978 to add a second count based on the Title VII charge filed by Heath.

On February 23, 1979, the district court, in an unpublished opinion, dismissed the Title VII claim on the ground that Heath's 1976 EEOC charge was not filed within the statutorily-designated period of 180 days.⁴  The district court found that the charge of discrimination stemmed from the composition of the list and that an EEOC charge, to be timely, should have been filed within 180 days of the promulgation of the list on July 4, 1972. The district court held that the continued existence of the list did not toll the 180-day statutory period until the expiration of the list on July 3, 1975. Plaintiffs' cross-motion for certification of a Title VII class was denied as moot. Vulcan Pioneers v. New Jersey Department of Civil Service, No. 950-73 (D.N.J., filed Feb. 23, 1979). Appendix at 43. The court granted summary judgment for defendants on the §§ 1981 and 1983 and the thirteenth and fourteenth amendment claims on April 8, 1980, and plaintiffs appealed.⁵ 

Hood

On May 18, 1978, George Hood filed an EEOC charge against the Department of Civil Service and the State Civil Service Commission alleging discrimination against blacks and Hispanics in the hiring of firefighters to entry level positions. He received a right-to-sue letter and subsequently filed a complaint on April 15, 1980, asserting his Title VII charge.⁶ 

Upon motion of defendants, Hood's complaint was dismissed. The district court found the underlying EEOC complaint to have been untimely filed because Hood's complaint fell well outside of the 180-day time limit prescribed by the statute. Hood's name appeared on the hiring list which was used between October 4, 1973 and October 3, 1976, with the last appointment from the list being made on December 2, 1974. Hood appealed.

On December 17, 1980, we consolidated the appeals in Vulcan Pioneers and Hood because of the identity of factual and legal issues involved.

DISCUSSION

These appeals raise two issues: 1) whether the Title VII claims filed by Health and Hood were timely; and 2) whether Vulcan Pioneers' claim, based upon 42 U.S.C. § 1981, requires a showing that there has been an intent to discriminate.

The Title VII Claims⁷ 

The district court ruled that the EEOC complaint by Heath should have been filed within 180 days of the promulgation of the July 4, 1972 list, since that promulgation was the unlawful practice upon which the complaint rested.⁸  No "continuing violation" existed by virtue of the continued use of the list since no specific instance of discrimination occurred after the promulgation of the list. Vulcan Pioneers, appendix at 55.

In its opinion, the district court also rendered a decision on a Title VII class certification motion in the related case of Bronze Shields, Inc. v. New Jersey Department of Civil Service, No. 2022-72 (D.N.J., filed Feb. 23, 1979). This decision, along with a subsequent decision rendered by the district court in Bronze Shields,⁹  was reviewed by us in Bronze Shields, Inc. v. New Jersey Department of Civil Service, 667 F.2d 1074 (3d Cir. 1981). In Bronze Shields, the named plaintiffs failed the Civil Service examination used by the City of Newark to determine eligibility for hiring police officers. Plaintiffs filed EEOC charges prior to the expiration of the hiring list but more than 180 days after its promulgation. The list was used only once, sixteen months after the filing of the EEOC complaint. In holding that the Title VII claim was properly dismissed we stated:

(W)e must likewise identify precisely the unemployment practice of which plaintiffs complain and separate it from the inevitable, but neutral, consequences of the allegedly discriminatory practice. Plaintiffs complain of defendants' refusal to place them on the hiring roster. Accepting plaintiffs' allegations as true, the roster, because it arises from examinations which have a discriminatory impact, could constitute an unlawful employment practice. Plaintiffs received formal notice that they were not on the eligibility roster on May 3, 1975, the date of its formal promulgation. As of that date at the latest, plaintiffs knew they would not be hired by the Newark police department for the next three years because they were not on the eligibility roster. Plaintiffs, however, did not file within 180 days of May 3, 1975.

Plaintiffs argue that Newark continued to discriminate against them by its use of the eligibility roster. This argument is unpersuasive. First, Newark never used the list prior to plaintiffs' filing charges with the EEOC. Second, even if Newark had used the list, plaintiffs do not allege that Newark would have followed anything but a neutral, non-discriminatory procedure in hiring from the list. Newark's policy was simply to hire in order from the list.

667 F.2d at 1083.

That analysis is applicable here. With regard to the EEOC complaint by Heath in Vulcan Pioneers, formal notice of ineligibility for promotion was given by July 4, 1972, the date of the list's promulgation. At that time, Heath knew that he would not be promoted during the next three years. He did not, however, file his complaint within 180 days of July 4, 1972. His claim is therefore barred.

The EEOC complaint by Hood differs from those discussed above since Hood passed the Civil Service examination, and he was placed on the eligibility list for hiring. It is, however, unnecessary for us to discuss whether in this context the use of the list or even its existence represents a "continuing violation" against which a complaint may be filed. Hood's complaint was not filed for almost three and one-half years after the last use of the list. Over one and one-half years had passed since the expiration of the list. Regardless of which date is used, the requirement that the complaint be filed within 180 days of the violation was clearly not met.

To avoid this result, Hood asserts that the filing of the EEOC complaint by Heath tolled the filing period for his own charge, because the filing of a class-action claim tolls the running of the statute of limitations for the putative class members. See, e.g., American Pipe & Construction Co. v. Utah, 414 U.S. 538, 94 S. Ct. 756, 38 L. Ed. 2d 713 (1973). However, in order for the statute to be tolled, the original complaint must have been timely filed.¹⁰  As was noted above, Heath's 1976 Title VII claim was not timely. Hood cannot resurrect that claim to his benefit, and, therefore, Hood's complaint was properly dismissed as filed out of time.

Vulcan Pioneers' 42 U.S.C. § 1981 claim

Vulcan Pioneers appeals the district court's holding that intentional discrimination is a necessary element of a § 1981 claim. Plaintiffs adduced no evidence to show intentional discrimination by any of the defendants, and, for that reason, summary judgment was entered against them. For the reasons we stated in Croker v. The Boeing Co., 662 F.2d 975 (3d Cir. 1981), and in Bronze Shields, we agree with the district court. In Croker and Bronze Shields we held that intentional discrimination is a required element of a § 1981 claim. The district court in this case found no evidence of intentional or purposeful discrimination; our examination of the record confirms that finding.

CONCLUSION

For the foregoing reasons, the district court's grant of summary judgment on the § 1981 claim and its dismissal of the Title VII claims will be affirmed.

SLOVITER, Circuit Judge, dissenting.

I would remand to the district court on both the Title VII and § 1981 claims.

I recognize that we are bound by the holding in Bronze Shields, Inc. v. New Jersey Department of Civil Service, 667 F.2d 1074 (3d Cir. 1981), that the 180-day period in which to file a charge with the EEOC runs from the date of the eligibility list's promulgation with respect to applicants who failed the examination and who were never placed on the list. My own view is that Judge Higginbotham's dissent sets forth the more persuasive analysis relying on the continuing violation, but we are not free to overrule a published opinion of a previous panel. See Internal Operating Procedures, United States Court of Appeals for the Third Circuit, Ch. VIII, C. (1980). However, in this case, the Title VII claim differs in some material respects from that before the court in Bronze Shields. Here the plaintiff Heath was already a firefighter who sought to attack not only the pattern of promotions in the fire department but the pattern of hirings as well. As a current employee, there would have been no reason for Heath to have taken the examination of May 30, 1973, from which the list controlling hirings was apparently taken. Heath's ability to challenge discriminatory hiring practices may be sustained under the theory that a current employee has standing under Title VII to attack discriminatory hiring practices, even though the complaining employee has not been denied employment. See, e.g., EEOC v. Mississippi College, 626 F.2d 477, 482-83 (5th Cir. 1980), cert. denied, 453 U.S. 912, 101 S. Ct. 3143, 69 L. Ed. 2d 994 (1981); Waters v. Heublein, Inc., 547 F.2d 466, 469-70 (9th Cir. 1976), cert. denied, 433 U.S. 915, 97 S. Ct. 2988, 53 L. Ed. 2d 1100 (1977); Gray v. Greyhound Lines, East, 545 F.2d 169 (D.C. Cir. 1976). Cf. Trafficante v. Metropolitan Life Insurance Co., 409 U.S. 205, 93 S. Ct. 364, 34 L. Ed. 2d 415 (1972) (current tenants have standing under Title VIII to attack exclusion of non-white apartment applicants on grounds of interest in "interracial associations"). See also 4 Newberg on Class Actions § 7973c (1977). In an affidavit on record, Heath alleged that his work environment has been adversely affected by the absence of more black and hispanic employees in the fire department. Appendix of Appellant Vulcan Pioneers at A148-51. The district court failed to consider whether these allegations demonstrate sufficient injury to confer standing upon Heath to complain of the hiring practices. Since Heath's action was dismissed for failure to file a timely charge and there was no finding that he had not adequately shown standing, I believe that on appeal we must assume that Heath can properly challenge both hiring and promotion practices.¹ 

Heath filed his EEOC charge on July 27, 1976, concededly more than 180 days after the promulgation of the hiring list on October 4, 1973. However, this list did not expire until October 3, 1976. Since the plaintiff in this case, in contrast to those in Bronze Shields, is an employee who claims continued injury because of discriminatory hiring practices, I would hold that the violation continues so long as the list remains in effect, and that the period for timely filing of a charge with the EEOC would extend from the promulgation of the list to 180 days after its expiration. As so construed, Heath's charge was filed within the requisite 180 days.

Moreover, in Bronze Shields we relied on the fact that there had been no appointments from the list within 180 days before the filing of the charge and suggested that the result might be different if that were not the case. 667 F.2d at 1083 & n.23. In contrast, it appears in this case that several firefighters were hired on March 10, 1976. If those hirings were made using the hiring eligibility list, a question which is not clear from the record, then the Heath complaint was timely filed not only if measured from the expiration of the list but also if measured from the most recent use of the list.

The majority seems to concede that the Heath complaint, if timely filed, would toll the limitations period with respect to the Hood complaint. Cf. American Pipe & Construction Co. v. Utah, 414 U.S. 538, 554, 94 S. Ct. 756, 766, 38 L. Ed. 2d 713 (1974) ("commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action"). Unlike the plaintiffs in Bronze Shields who had failed the examination, HOod passed it but alleges that as a result of the discriminatory practices, his low placement on the eligibility list resulted in the failure to hire him. Appendix of Appellant Hood at A3-4. Hood could not have been expected to know that his name would not be reached until the list expired. Since the date when Heath filed his charge with the EEOC, July 27, 1976, inured to Hood's benefit, and as noted above, I would hold Heath's charge was timely, I would also hold that Hood is not precluded from having his Title VII action heard.

Turning next to the § 1981 claim, I continue to believe that proof of discriminatory impact should be sufficient to establish a claim under § 1981, for the reasons set forth in Judge Gibbons' dissent in Croker v. Boeing Co., 662 F.2d 975 (3d Cir. 1981) (en banc), which I joined, and in Judge Higginbotham's dissent in Bronze Shields. I recognize, however, that we are compelled to follow the precedent of those cases. In view of the fact that the Supreme Court has agreed to review a case presenting this very issue, Guardians Association v. Civil Service Commission, 633 F.2d 232 (2d Cir. 1980), cert. granted, --- U.S. ----, ----, 102 S. Ct. 997, 71 L. Ed. 2d 291 (1982), I would have preferred to defer decision of this case pending the Supreme Court's ruling on this subject.

However, even under the construction of § 1981 accepted by the majority in Croker v. Boeing, I believe the entry of summary judgment was inappropriate. The Croker majority recognized that "disproportionate impact may be an important factor in proving racially discriminatory intent. See Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 266, 97 S. Ct. 555, 563, 50 L. Ed. 2d 450 (1977)." 662 F.2d at 989. In this case plaintiffs have alleged a disproportionate impact of such magnitude as to create an inference of discriminatory intent. As alleged by plaintiffs, the population of Newark according to the 1970 census was 54% black, 12% hispanic. Appendix of Appellant Vulcan Pioneers at A89. In 1973, blacks comprised only 4.5% of the Newark Fire Department, the lowest percentage of minority employees of any major Newark agency. In contrast, the percentage of black employees in other Newark agencies was 43.4%; the agency with the largest percentage of blacks was the department of rat and pest control, 86.2% of whose employees were black. Id. at A90.

The 1973 statewide civil service hiring examination had a pass rate of 65.1% for white male applicants, 18.3% for black male applicants, and 18.5% for hispanic male applicants. Id. at A100. Between 1973 and 1976, 112 appointments were made to the fire department from the list, of whom only 4 were blacks, and 1 hispanic. Id. at A85. In 1976, blacks and hispanics still only comprised 5% of the fire department. Id. at A95. While defendants may be able to rebut the inference of discriminatory intent which those statistics create, I believe that on this record a triable issue of intent was raised.

I would therefore remand to the district court for resolution of the factual issues, if any, presented with respect to Heath's standing to challenge the hiring practices of the fire department, the propriety of class certification on the Title VII claim, and the adequacy of the plaintiffs' evidence to establish discriminatory intent under § 1981.