National Association for the Advancement of Colored People “naacp” v. North Hudson Regional Fire & Rescue, a body corporate

The Honorable Cynthia M. Rufe, District Judge for the United States District*
Court for the Eastern District of Pennsylvania, sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 09-1698
____________
NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE
(“NAACP”); THE NEWARK BRANCH, NAACP; THE NEW JERSEY STATE
CONFERENCE, NAACP; ALLEN WALLACE, LAMARA WAPPLES;
ALTARIK WHITE
v.
NORTH HUDSON REGIONAL FIRE & RESCUE, a body corporate and politic of the
State of New Jersey,
Appellant
ALEX MATTHEW DEROJAS; ALEXANDER RODRIGUEZ; RANDY VASQUEZ;
CARLOS A. CASTILLO; ORLANDO DUQUE; PABLO CLARO,
Intervenor Defendants
____________
On Appeal from United States District Court
for the District of New Jersey
(D.C. No. 07-cv-01683)
District Judge: Honorable Dickinson R. Debevoise
____________
Submitted Under Third Circuit LAR 34.1(a)
February 4, 2010
Before: McKEE, HARDIMAN, Circuit Judges, and RUFE , District Judge*
( Filed: March 1, 2010 )
__________

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The District Court’s underlying Memorandum Opinion ruled on three2
motions: NAACP’s Motion for Class Certification, NAACP’s Motion for Preliminary
Injunction, and NAACP’s Motion for Bifurcation. The District Court granted NAACP’s
motions for class certification and preliminary injunction and denied NAACP’s
bifurcation motion. The only issue challenged on appeal is the District Court’s decision
to grant preliminary injunction relief.
2
OPINION OF THE COURT
____________
RUFE, District Judge.
Appellant North Hudson Regional Fire and Rescue (“Regional”) brings this matter
as an interlocutory appeal of a preliminary injunction from the District of New Jersey.
For the reasons that follow, we will sua sponte summarily remand the case to the District
Court for further proceedings.2
I.
As we write for the parties, who are familiar with the facts and procedural history,
we recount only those aspects of the case that are essential to our ruling.
The New Jersey Department of Personnel periodically administers a written and
physical firefighter exam for all fire departments in the state of New Jersey. Applicants
who take the written and physical exam are ranked on a Civil Service list based on their
test scores. Candidates provide their residence codes, which are then used to determine
which individuals will be listed as eligible candidates for municipalities that restrict hiring
based on residence. Residency is determined as of the date of a candidate’s application.
Regional is a consolidated municipal fire department of 300 employees, providing
services to the towns of Guttenberg, North Bergen, Union City, Weehawken, and West
New York (the “Member Municipalities”), which are all located in the northern part of
Hudson County, New Jersey. Regional restricts hiring to individuals residing in one of

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In 2000, the population of the Member Municipalities was 69.6 percent3
Hispanic; 22.9 percent Caucasian; and 3.4 percent African American. As of July 2008,
Regional had 323 full-time employees: 64 were Hispanic; 255 were Caucasian; 2 were
African American; and 2 were identified as other races. See N.A.A.C.P. v. North Hudson
Regional Fire & Rescue, 255 F.R.D. 374, 380 (D.N.J. 2009).
The parties had previously agreed that Regional would not hire without4
providing notice to NAACP while the instant District Court case was pending.
3
the five towns located in its Member Municipalities. Applicants must reside in the
Member Municipality at the time of their exams in order to be placed on Regional’s
residency-restricted candidacy list. When Regional needs to fill a vacancy, it hires the
highest ranked individual(s) from its list. Once hired, Regional’s firefighters are free to
live anywhere in the State of New Jersey.
On April 10, 2007, NAACP, the Newark Branch NAACP, the New Jersey State
Conference NAACP, Allen Wallace, Lamara Wapples, and Altarik White (collectively
referred to hereinafter as “NAACP”) filed a class action complaint against Regional
alleging that Regional’s geography-based hiring plan caused discrimination against
African Americans who reside in the southern part of Hudson County and neighboring
Essex and Union counties, in violation of Title VII of the Civil Rights Action of 1964, 42
U.S.C. § 1981, and the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to 49.3
On December 23, 2008, NAACP filed a motion for preliminary injunction after receiving
notice that Regional intended to hire new firefighters.4
On February 17, 2009, the District Court held oral argument on NAACP’s motion
for preliminary injunction. After consideration of the arguments and the parties’ expert
reports, the District Court granted NAACP’s motion and enjoined Regional from hiring
candidates from its Member Municipalities list until it obtained a revised Civil Service

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North Hudson Regional Fire & Rescue, 255 F.R.D. at 393.5
Id. at 391.6
4
list that expanded the residency requirement to include residents of south Hudson, Essex,
and Union counties.5
Applying N.A.A.C.P. v. City of Bayonne, N.J., 134 F.3d 113 (3d Cir. 1998), the
District Court adopted NAACP’s expert’s conclusion, which was undisputed by
Defendant’s expert, that the relevant labor market is the Tri-County area or the entire state
of New Jersey. While the experts disagreed as to the “qualified population”, the District
Court determined that both expert reports support a finding that the residency requirement
creates a discriminatory disparate impact. The District Court further determined that
Hispanics’ employment prospects were not relevant as to whether Regional’s current
hiring practices discriminate against African Americans because “[d]iscriminatory hiring
practices against one group may not be maintained to benefit another group, even if that
other group is a protected class.”6
The District Court ultimately concluded that in light of the ratio between the racial
composition of the at-issue jobs, which included two African Americans, and the racial
composition of the qualified population in the relevant labor market, which included
either 121 or 65 African Americans, depending on the definition of the relevant labor
market, NAACP had proven a substantial likelihood of success on the merits of its Title
VII class action claim. The District Court also concluded that Regional’s residency-
restricted hiring plan discriminated against African Americans residing in neighboring
counties, which justified its issuance of an injunction preventing Regional from hiring
additional firefighters until it obtained a revised Civil Service list that expanded the
residency requirements to include residents of southern Hudson, Essex, and Union

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5
counties.
Shortly thereafter, Regional filed the instant interlocutory appeal challenging the
District Court’s decision. Intervenor-Defendants Alex DeRojas, et al. (“Intervenors”)
joined in this litigation as six Hispanic firefighter candidates on Regional’s residency-
restricted candidate list. We have jurisdiction over this appeal pursuant to 28 U.S.C. §
1292(a).
II.
On the Court’s own motion, we believe it is necessary to summarily remand this
matter for the District Court’s further consideration of what implications the recently
decided United States Supreme Court decision in Ricci v. DeStefano, 129 S.Ct. 2658
(2009) may have on this case. As the District Court granted the preliminary injunction in
February 2009, and Ricci was not decided until June 29, 2009, the District Court was not
afforded an opportunity to consider the issue herein appealed, in light of Ricci, when it
issued its ruling.
In Ricci, 118 firefighters in New Haven, Connecticut took examinations to qualify
for promotion to the rank of lieutenant or captain. When the examination results showed
that white candidates had outperformed minority candidates, the mayor and other local
politicians opened a public debate. Some firefighters argued that the exams should be
discarded because the results showed the exams to be discriminatory and threatened a
lawsuit if the City of New Haven (“New Haven”) made promotions based on the exams.
Other firefighters argued that the exams were neutral and fair and that they, too, would
file a discrimination lawsuit if New Haven relied on the statistical racial disparity, ignored
the exam results, and denied promotions to the candidates who had performed well. In
the end, New Haven agreed with those who protested the exam results and threw out the
examinations. As a result, certain Caucasian and Hispanic firefighters filed suit against

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Ricci, 129 S. Ct. at 2664.7
Id. at 2661.8
Id. at 2681.9
6
New Haven, alleging that by discarding the exam results, New Haven discriminated
against them based on their race in violation of Title VII of the Civil Rights Act of 1964
and the Equal Protection Clause of the Fourteenth Amendment. New Haven, in defense
of its actions, argued that if it had certified the exam results, it would have faced liability
under Title VII for adopting a practice that had a disparate impact on the minority
firefighters. The district court granted summary judgment for New Haven and the Second
Circuit Court of Appeals affirmed. The U.S. Supreme Court, however, reversed and
remanded on the basis that “race-based action like [New Haven’s]...is impermissible
under Title VII unless the employer can demonstrate a strong basis in evidence that, had it
not taken the action, it would have been liable under the disparate-impact statute.” The7
Supreme Court held,
under Title VII, before an employer can engage in intentional
discrimination for the asserted purpose of avoiding or remedying an
unintentional disparate impact, the employer must have a strong basis in
evidence to believe it will be subject to disparate-impact liability if it
fails to take the race-conscious, discriminatory action.8
As Justice Kennedy states in his Opinion, the Supreme Court’s 5-4 decision in
Ricci “clarifies how Title VII applies to resolve competing expectations under the
disparate-treatment and disparate-impact provisions.” In Ricci, the Supreme Court set9
the new standard for Title VII disparate treatment and disparate impact cases.
Consequently, we conclude that the age and posture of this case justify a summary
remand to allow the District Court the opportunity to apply Ricci to its factual and legal
analysis.

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7
III.
For the foregoing reasons, we will summarily remand this matter to the District
Court for consideration and analysis of Ricci and further proceedings consistent with this
opinion pursuant to 3d Cir. L.A.R. 27.4 and I.O.P. 10.6.

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