Bronze Shields, Inc. v. New Jersey Department of Civil Service

OPINION OF THE COURT

VAN DUSEN, Senior Circuit Judge.

Plaintiffs charged defendants in a two-count complaint with discriminating on the basis of race and ethnic origin in the hiring and promotion of police officers in the Newark, New Jersey, police department. Plaintiffs allege defendants have violated 42 U.S.C. § 1981 (count I)¹ and Title VII, 42 U.S.C. § 2000e et seq. (count II). The district court, 488 F.Supp. 723, granted defendants’ motion for summary judgment on the § 1981 claim because plaintiffs had failed to allege or demonstrate any intent on the part of defendants to discriminate.² Intentional discrimination, the district court held, is a necessary element of a § 1981 cause of action. The district court dismissed the Title VII claim because plaintiffs had not filed charges with the Equal Employment Opportunity Commission (“EEOC”) within the statutorily required 180 days.³ Plaintiffs appeal both the summary judgment granted on count I and the dismissal of their claim under count II. We affirm the district court action on count I as to all except the Newark defendants (see page 4 below) and on count II as to all defendants.

I. FACTS

To become a Newark police officer an applicant must first pass a written examination administered by defendant New Jersey State Department of Civil Service (“State Civil Service”). If the applicant passes this examination, he or she must pass a physical and medical examination, again given by the State Civil Service.⁴ Those who successfully complete these examinations are placed on an eligibility roster in the order in which they scored on the written test.⁵ This roster is distributed to the various municipalities, including defendant City of Newark (“Newark”). Defendant Newark then screens all those applicants listed on the eligibility roster. This screening includes, but is not limited to, an investigation of the applicant’s character, personal life, reputation, a personal interview, and a psychiatric examination. Any applicant who does not Withstand this screening process is removed from the roster. Newark hires recruits for its police department as needed from the eligibility roster in the order on the list.

Defendant State Civil Service also prepares an eligibility roster for the promotion of officers within municipal police departments. This roster is compiled on the basis of a written examination, years in service, and a service rating.

Plaintiffs include Bronze Shields, Inc., a non-profit New Jersey corporation whose purpose is to eliminate racial discrimination against policemen generally and, more specifically, to promote the employment and promotion of black police officers within the Newark police department. Individual plaintiffs include several applicants for the position of police officer in Newark who either failed the written civil service examination (Olivia Howard, Crawford, and Jackson), the physical or medical examination (Gonzalez and Hernandez), or the screening carried out by Newark (Livingston, Thomas, and Pittman). Plaintiffs Reid, Williams, and Frank Howard are Newark police officers who, for a variety of reasons, defendants did not place on the list of those eligible for promotion.

Defendants include the State Civil Service which is responsible for the development and administration of standards, including examinations, that condition the hiring and promotion of municipal police officers throughout the State of New Jersey. N.J.Admin.C. tit. 4:l-3.5. Defendant New Jersey State Civil Service Commission is subsumed under the State Civil Service. N.J.Admin.C. tit. 4:1 — 3.1. These defendants, and the individual defendants employed by the state, are referred to as the state defendants. The remaining two defendants, Newark and the supervisor of the Newark police department, are, in the following discussion, referred to collectively as Newark. Newark uses the state-prepared eligibility lists and its own screening procedures to determine the candidates eligible for hire by the police department.

Because the allegations in plaintiffs’ complaint are important to the determination of all the issues presented, we describe them in detail. Plaintiffs first charge both Newark and the state defendants with racial discrimination for their respective roles in either promulgating or using the eligibility roster for the hiring of Newark police officers. The eligibility roster, as initially published by the State Civil Service, is based on written, physical and medical examinations. The written examination, plaintiffs charge, has a disproportionate impact on minorities: a larger percentage of blacks and Hispanics who take the examination fail as compared to whites. For those applicants who voluntarily disclosed their race, the following passed the civil service examination:

White Male Balack MaleSpanialvspeaking Hale

Teat Date No. % No. % Paaalng Paaalng ' Paasing Paaaing No. % Paaalng Paaalng

5/ 8/72 567 27 17% 6 10%

6/19/72 233 60.8% 13 25% 3 100%

7/17/72 614 66.1% 63 28.6% 16 25%

9/22/72 236 62.3% 5 25% 3 25%

11/18/72 770 72.4% 78 39.8% 29 35.8%

3/19/73 709 55.4% 21 20.6% 7 18.4%

5/23/73 49.4% 19.4% 31.9%

8/ 6/73 62.8% 28.1% 24.8%

4/15/74 390 44% 6 13% 4 16%

7/15/74 633 67% 16 25% 16 45%

6/21/75 36.8% 14.5% 11.3%

The state-administered physical examination, plaintiffs contend, excludes a disproportionate number of Hispanic applicants because it requires that all candidates be 5 feet 7 inches tall. The two contested examinations, along with a medical examination, provide the basis for the roster promulgated by the state defendants and used by the Newark police department. The use of this eligibility roster, plaintiffs allege, results in a pattern of unlawful employment discrimination on the basis of race and ethnic origin. Newark, then, is charged with discrimination for its use of the eligibility roster; the state related defendants are charged with discrimination for the promulgation of the offending list.

Plaintiffs have charged Newark alone with employment discrimination because of the screening procedures it uses to further reduce the number of candidates on the eligibility roster. These screening procedures, only vaguely set out in the complaint, allegedly have a disproportionate impact on blacks and Hispanics, are not job related, and are applied arbitrarily.

Both the state defendants and Newark are accused of discriminating for their part in the promulgation or use of the eligibility roster used to promote, as compared to hire, officers within the Newark police department. New Jersey law, N.J.Admin.C. tit. 4:l-8.4.-6, requires that the State Civil Service consider three factors in compiling the eligibility list for promotions: number of years in service, service rating given by a supervisor, and score on a written examination. Consideration of years in service, plaintiffs claim, continues the effects of past discrimination. The service rating is a discretionary decision which, plaintiffs argue, reflects the bias and prejudice of the generally white decision maker. Finally, plaintiffs charge that the written promotion examination, administered by the State Civil Service, has a disproportionately negative effect on the promotional opportunities for blacks and Hispanics.

II. THE PROCEDURAL HISTORY

Plaintiffs initially filed their complaint in 1972, alleging discrimination by defendants in violation of 42 U.S.C. §§ 1981 and 1983 and the Thirteenth and Fourteenth Amendments of the Constitution. No claim based on Title VII was made at that time. On November 26,1974, the district court issued a preliminary injunction in favor of plaintiffs. This injunction required Newark to hire one black or Hispanic police officer for every two white officers hired.⁶

The Supreme Court announced its decision in Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), in June 1976. The Court in Washington required proof of intentional discrimination for constitutionally based claims of discrimination. Washington v. Davis, supra at 247-48, 96 S.Ct. at 2051-52. Because plaintiffs had not alleged any intentional discrimination, defendants moved to dismiss. The district court stayed the motion to await the outcome of a charge filed by plaintiffs with the EEOC challenging the same employment and promotion practices.

Six individual plaintiffs filed employment discrimination charges against defendants with the EEOC in July 1976, approximately one month after the announcement of the Washington decision. After receiving right to sue letters, these individuals amended the complaint and added count II, the claim based on Title VII. It is this amended complaint which is being considered here.

The district court first addressed the Title VII claim. On March 12, 1979, the court denied plaintiffs’ motion to certify a class since plaintiffs had failed to file charges with the EEOC within the required 180 days.⁷ Because of the untimely filing, plaintiffs’ Title VII cause of action, count II, was dismissed on April 2, 1979.

The district court then returned its attention to the original count I, the § 1981, § 1983, and Thirteenth and Fourteenth Amendment claims.⁸ The court entered summary judgment for defendants on count I on April 29, 1980. It held that claims based on § 1981, § 1983, or the Fourteenth Amendment⁹ all require intentional discrimination as an element of the cause of action. Because no allegation or showing of intentional discrimination had been made, plaintiffs’ count I claims could not withstand a motion for summary judgment.

III. JURISDICTION

We first address this court’s jurisdiction. Plaintiffs initially filed a notice of appeal on July 7, 1980, from the orders refusing to vacate the grant of summary judgment on count I and the dismissal of count II. The orders appealed from, however, did not rule on all attorneys’ fees which plaintiffs had requested in their complaint. After the grant of summary judgment and dismissal, plaintiffs filed a separate petition for counsel fees which was denied by the district court on December 1, 1980. Plaintiffs filed a second appeal, No. 81-1133, on December 22, 1980, which did not challenge the denial of counsel fees but repeated the same grounds set out in the July 7, 1980, notice of appeal. Admittedly this second appeal was filed as a cautionary measure to insure that the court had jurisdiction in the event that the July 7, 1980, notice of appeal was premature.

The plaintiffs’ apprehensions were well founded because in Croker v. Boeing Co., etc., et al., 662 F.2d 975 at 981 (3d Cir., 1981), this court concluded that an appeal taken before attorney’s fees were determined was premature.

Plaintiffs’ motion to consolidate the appeals at Nos. 80-2003 and 81-1133 has been granted, and hence this court has jurisdiction under No. 81-1133 to review the order filed December 1, 1980 (Document 141 in the District of New Jersey Civil No. 72-2022), and the orders included in the July 7, 1980, notice of appeal since they were repeated in the December 22, 1980, notice of appeal. The appeal at No. 80-2003 will be dismissed as premature in view of Croker, supra. We turn then to the merits.

IV. THE TITLE VII CLAIM

Plaintiffs on appeal contest the district court’s conclusion that the charges, filed with the EEOC against the state defendants and Newark, were untimely. The only charges which are of concern here are those based on the defendants’ promulgation and use of the allegedly discriminatory hiring roster, not the promotion roster. The district court found that, of the plaintiffs who had filed Title VII charges, none had standing to challenge the eligibility lists used for promotion purposes¹⁰ and plaintiffs do not contest this holding on appeal.¹¹ To further clarify what Title VII claims are not involved here, we note that plaintiffs: do not argue they have standing to contend that the screening procedures used by Newark violate Title VII.¹² The only charges which we must determine as timely or untimely filed are those alleging discrimination resulting from the promulgation or use of the eligibility roster for hiring.

Pursuant to section 706(e) of Title VII, 42 U.S.C. § 2000e-5(e),¹³ a charge of discrimination must be filed with the EEOC within 180 days after the alleged unlawful employment practice occurred.¹⁴

The specific facts pertinent to the timely filing issue are as follows. Plaintiffs Olivia Howard and Crawford took the examination for police officer candidates on January 18,1975. In February 1975, they were notified they had failed. The State Civil Service promulgated the eligibility roster on May 3,1975. This roster remained in effect for three years. Newark only used the roster once when it hired 27 recruits for police officer training in November 1977. Plaintiffs filed charges of discrimination with the EEOC on July 9, 1976.

The district court held that the allegedly discriminatory employment practice occurred with the promulgation of the eligibility roster published on May 3,1975. The plaintiffs’ EEOC charges, filed in July 1976, were not filed within 180 days of May 3, 1975, and therefore were untimely. Plaintiffs challenge this holding and argue that their filings were timely under either (A) the continuing violation theory or (B) the doctrine of equitable estoppel.¹⁵

A. The Continuing Violation Theory

Plaintiffs first rely on the continuing violation theory to support the allegation that their discrimination charges were timely filed. Plaintiffs assert that the eligibility roster, based on the results of the allegedly discriminatory civil service examination, constitutes an unlawful employment practice which continued to violate Title VII for as long as the roster was in effect. The roster was in effect from May 1975 until at least November 1977. Plaintiffs filed charges with the EEOC in July 1976. Because they filed during the roster’s effectiveness, plaintiffs assert their filings were timely.

The continuing violation theory has attracted widespread attention by commentators,¹⁶ and has been employed by courts to expand the filing period available to Title VII complainants.¹⁷ The liberal application of the congressionally mandated filing period is consistent with the remedial purposes of Title VII and the liberal interpretation to be given to all Title VII provisions.¹⁸ The expansive application of the 180-day filing limit has been justified as permitting claims filed by lay employees unversed in the procedural niceties of the law.¹⁹ Indeed, a Senate Conference Committee report specifically recognized and approved the courts’ expansion of the statutory filing period through the use of the continuing violation theory.

“This subsection as amended provides that charges be filed within 180 days of the alleged unlawful employment practice. Court decisions under the present law have shown an inclination to interpret this time limitation so as to give the aggrieved person the maximum benefit of the law; it is not intended that such court decisions should be in any way circumscribed by the extension of the time limitations in this subsection. Existing case law which has determined that certain types of violations are continuing in nature, thereby measuring the running of the required time period from the last occurrence of the discrimination and not from the first occurrence is continued, and other interpretations of the courts maximizing the coverage of the law are not affected.”

118 Cong.Rec. 7167. The Senate accepted this report by a vote of 62 to 10. 118 Cong.Rec. 7167, 7170. Finally, this court has recognized the continuing violation theory in Title VII cases, see Masco v. United Airlines, 574 F.2d 1127 (3d Cir. 1978); Bethel v. Jendoco Const. Corp., 570 F.2d 1168 (3d Cir. 1978); Wetzel v. Liberty Mutual Insurance Co., 508 F.2d 239, 246 (3d Cir.), cert. denied, 421 U.S. 1011, 95 S.Ct. 2415, 44 L.Ed.2d 679 (1975), as have numerous other circuits.²⁰

The continuing violation theory, however, cannot be considered only in the expansive light of extending the filing period in order to protect a person’s civil rights. Confronting and limiting the continuing violation theory is the explicit statutory 180-day limit, enacted by Congress to “protect employers from the burden of defending claims arising from employment decisions that are long past.” Delaware State College v. Ricks, 449 U.S. 250, 256-57, 101 S.Ct. 498, 503-04, 66 L.Ed.2d 431 (1980), citing Johnson v. Railway Express Agency, 421 U.S. 454, 463-64, 95 S.Ct. 1716, 1721-22, 44 L.Ed.2d 295 (1975); see United Air Lines v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977). Although many district courts and courts of appeals have favored the expansive interpretation of the continuing violation theory, the Supreme Court has, in its two most recent opinions on the subject, refused to apply the continuing violation theory. Delaware State College v. Ricks, supra; United Air Lines v. Evans, supra. Instead, as indicated above, the Court has emphasized the congressional intent to limit an employer’s liability for stale claims.

“The limitations periods, while guaranteeing the protection of the civil rights laws to those who promptly assert their rights, also protect employers from the burden of defending claims arising from employment decisions that are long past. Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 463-464, 95 S.Ct. 1716, 1721-1722, 44 L.Ed.2d 295 (1975); see United Air Lines v. Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 1889, 52 L.Ed.2d 571 (1977).”

Ricks, supra, 449 U.S., at 256-57, 101 S.Ct. at 503-04. Cf. International Union of Electrical Workers v. Robbins & Myers, Inc., 429 U.S. 229, 97 S.Ct. 441, 50 L.Ed.2d 427 (1976).

Because the Supreme Court’s recent decisions, particularly Delaware State College v. Ricks, supra, persuade us that the use of the eligibility roster does not constitute a continuing violation, we forego discussing all of the cases decided before Ricks, supra, on the subject.²¹

The plaintiff in Ricks, a black Liberian, was formally denied tenure on March 13, 1974. Delaware State College, like many other educational institutions, does not immediately discharge faculty members who are denied tenure. Rather, such faculty members are offered one-year terminal contracts. Termination of employment, however, is a delayed but inevitable consequence of an unfavorable tenure decision. On June 26,1974, Ricks was offered, and he accepted, a terminal, one-year contract. Meanwhile, Ricks filed a grievance which was denied on September 12, 1974. He filed charges with the EEOC on April 4, 1975. The district court determined that the filing period started to run on June 26, 1974, the date plaintiff was offered and accepted his terminal contract. The offer and acceptance of the terminal contract, as explained by the district court and accepted by the Supreme Court, marked the latest time at which Ricks knew the College was going to both deny him tenure and terminate his employment. The district court dismissed the case because plaintiff had failed to file within 180 days of accepting the terminal contract. The Supreme Court upheld the district court’s dismissal, reversing this court’s decision.

According to the Supreme Court in Ricks, supra, 449 U.S., at 257, 101 S.Ct. at 504, to determine the timeliness of an EEOC complaint, a court must “identify precisely the ‘unlawful employment practice’ of which [plaintiff] complains.” In Ricks the plaintiff challenged the decision to deny him tenure. The Supreme Court held that the filing limitation period commenced at the time the tenure decision was made and fully communicated to Ricks. “That is so even though one of the effects of the denial of tenure — the eventual loss of a teaching position — did not occur until later.... The emphasis is not upon the effects of earlier employment decision; rather, it ‘is [upon] whether any present violation exists.’ ” Id. at 257, 101 S.Ct. at 504 (emphasis in original), citing United Air Lines v. Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 1889, 52 L.Ed.2d 571 (1977). See also Masco v. United Airlines, 574 F.2d 1127 (3d Cir. 1978). The Court explained that

“. . . termination of employment at Delaware State is a delayed, but inevitable, consequence of the denial of tenure. In order for the limitations periods to commence with the date of discharge, Ricks would have had to allege and prove that the manner in which his employment was terminated differed discriminatorily from the manner in which the College terminated other professors who also had been denied tenure. But no suggestion has been made that Ricks was treated differently from other unsuccessful tenure aspirants. Rather, in accord with the College’s practice, Ricks was offered a one-year ‘terminal’ contract with explicit notice that his employment would end upon its expiration.”

Ricks, supra at 257-58, 101 S.Ct. at 504-05.

Returning to the case before us, we 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,²² 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.²³ 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.

The statute (42 U.S.C. § 2000e-5(e)) requires that “the person aggrieved” file charges within 180 days of “the alleged unlawful employment practice.”²⁴ This statutory language indicates that some act must aggrieve the complaining party. The record does not show that the defendants acted in any way which aggrieved plaintiffs within the 180 days before plaintiffs filed their EEOC charge. The only act of which plaintiffs complain was the promulgation of the eligibility roster on May 3,1975. Plaintiffs’ EEOC charge was filed more than a year later, in June 1976, far more than 180 days after the list’s promulgation, and therefore was untimely.

Newark’s non-discriminatory policy as to the use of the roster is similar to Delaware State’s non-discriminatory policy in discharging all faculty denied tenure. See Ricks, supra, 449 U.S., at 257-58, 101 S.Ct. at 504-05. Newark’s refusal to hire plaintiffs, like Delaware College’s discharge of Ricks, “is a delayed, but inevitable consequence” of the allegedly discriminatory employment procedure — here a specific, identifiable act, the promulgation of the hiring roster. It is unlike, therefore, a continuing practice such as in Bethel v. Jendoco, supra, which manifested itself only in individual hiring rejections.

Thus, we reject plaintiffs’ argument that the continuing violation theory applies to the facts of this case.

B. The Equitable Tolling Argument

Plaintiffs assert that their EEOC charges were timely filed because, for several reasons, the 180-day limit was equitably tolled.

The filing limits under Title VII are not jurisdictional and are subject to equitable tolling. Hart v. J. T. Baker Chemical Corp., 598 F.2d 829 (3d Cir. 1979); Laffey v. Northwest Airlines, Inc., 567 F.2d 429 (D.C. Cir.1976); DeMatteis v. Eastman Kodak Co., 520 F.2d 409 (2d Cir. 1975); Reeb v. Economic Opportunity Atlanta, Inc., 516 F.2d 924 (5th Cir. 1975). While recognizing that the filing limits of Title VII can be equitably tolled, we find no justification in equity to toll the filing limitation in this case. Cf. School District v. Marshall, 657 F.2d 16 (3d Cir. 1981).

Plaintiffs argue that they relied to their detriment on the established law prior to the Supreme Court case of United Air Lines v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977). This supposedly well-established law permitted them to file EEOC charges at any time while the violation continued. Evans, plaintiffs claim, reversed the prior law and precluded their reliance on the continuing violation theory.²⁵ Plaintiffs explain that if Evans is applied to this ease, they will be unfairly penalized for relying on what had been clearly established law. Such an inequitable result, plaintiffs argue, is precluded by Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971).

In Chevron, when the plaintiff initially filed suit, it was commonly recognized that the three-year admiralty statute of limitations controlled his cause of action. Defendants did not question the timeliness of the filing. During pretrial discovery, the Supreme Court decided a case which reversed the established law and held that the shorter, one-year state statute of limitations applied. Although plaintiff had filed suit more than a year after his cause of action arose, the Court exercised its equity powers and refused to apply the newly announced law on limitations retroactively to plaintiff’s case. His filing was held to be timely.

Plaintiffs cannot rely on Chevron for two reasons. First, Evans did not reverse clearly established law. The continuing violations theory was in its embryonic stages at the time the plaintiffs supposedly, relied on it in 1975. Since then, the theory has been presented to numerous courts but has been erratically and inconsistently applied.²⁶ Reliance on such an uncertain doctrine to delay filing, when such a delay was not mandated by other considerations, was not reasonable. Second, plaintiffs themselves admit that their delay in filing resulted, not from a reliance on the continuing violation law prior to Evans, but rather from their mistaken belief that the original court action, based on § 1981, § 1983 and the Thirteenth and Fourteenth Amendments, would provide complete relief.²⁷ Plaintiffs apparently chose to rely on this court civil action rather than go through the often lengthy administrative proceedings which are a part of the Title VII process.

Equity does not provide for those who put all their eggs in one basket and refuse to take advantage of alternative avenues to relief. Plaintiffs should be encouraged to vindicate their rights, not only by means of the courts, but also by use of administrative processes. We therefore will not rely on the equitable principle utilized in Chevron to save plaintiffs’ case.

Plaintiffs next argue that the filing period should be equitably tolled because the parties had been litigating the same issues ever since 1972.²⁸ This litigation, plaintiffs contend, gave notice to defendants of the employment discrimination charges and so satisfied one of the primary purposes behind the limited filing period— that of notifying the defendant so that necessary evidence and testimony could be preserved. Hart v. J. T. Baker Chemical Corp., 598 F.2d 829, 833 (3d Cir. 1979). We must, however, consider other purposes behind Title VII. Congress intended to limit an employer’s liability by restricting the filing period. Ricks, supra, 449 U.S., at 257-59, 101 S.Ct. at 505-507. It also intended that, by having plaintiffs file with the EEOC before going to court, both parties would be subjected to the administrative pressure to reconcile their dispute. Here, by delaying filing, plaintiffs avoided the administrative pressures and, if they succeed, would expand the time period during which an employer is liable. These other purposes behind Title VII outweigh the purpose of notifying the defendant of upcoming litigation. Therefore, equity should not intervene.

Furthermore, the holding in Johnson v. Railway Express Agency, 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975), indicates that plaintiffs’ equitable tolling argument is without merit. In Johnson, the Court concluded that the filing of Title VII charges with the EEOC does not toll the statute of limitations in a suit brought under § 1981. Id. at 461, 95 S.Ct. at 1720. This conclusion was based on the view that “the remedies under Title VII and under § 1981, although related, and although directed to most of the same ends, are separate, distinct and independent.” Id. Because the claims are independent, the filing of charges under § 1981 will not toll the filing limit under Title VII.

Courts often rely on equity in Title VII cases where complainants are “lay persons unfamiliar with the complexities of the administrative procedures.” Hart v. J. T. Baker Chemical Corp., 598 F.2d 829, 832 (3d Cir. 1979). Plaintiffs have been counseled since 1972 by able attorneys and so cannot rely on this as a basis for equity.

We do not decide whether, as defendants suggest, equitable tolling may only be invoked where the employer has, either through overreaching or concealment, impeded a plaintiff’s prosecution of his Title VII claim. We simply hold that, under the facts of this case and for the reasons given above, the equities do not demand the tolling of the 180-day filing limitation.

Thus we affirm the district court’s dismissal of plaintiffs’ Title VII claim as untimely. The effectiveness of the eligibility roster does not, standing alone, constitute a continuing violation of Title VII. Plaintiffs have not presented any justification for equitably tolling the 180-day filing period.

V. THE § 1981 CLAIM

Plaintiffs appeal the district court’s grant of summary judgment for defendants on count I, the cause of action premised on 42 U.S.C. § 1981. The district court held that intentional discrimination is a necessary element of a § 1981 claim and that disproportionate impact, standing alone, does not give rise to an inference of intentional discrimination. For the reasons stated in Croker, et al. v. The Boeing Co., etc., et al., 662 F.2d 975 at 984 (3d Cir. 1981), we agree.

The district court further found that, because plaintiffs had only alleged and presented evidence of disproportionate impact, both defendants were entitled to summary judgment. We agree for the most part and will affirm the summary judgment in favor of the State Civil Service. We will, however, reverse in part the summary judgment in favor of Newark.

Plaintiffs did not allege, either initially or when they amended the complaint in 1977, that any of the defendants intended to discriminate. Given the liberal interpretation to be accorded pleadings, Foman v. Davis, 371 U.S. 178, 181-82, 83 S.Ct. 227, 229-30, 9 L.Ed.2d 222 (1962), we will explore the facts as stated in the complaint and affidavits to determine whether any allegations, together with a showing of disproportionate impact, could establish the necessary intent.

Our examination of the record as to the state defendants has not revealed facts which, even in conjunction with a showing of disproportionate impact, would support an allegation of intentional discrimination. The summary judgment for the state defendants will be affirmed.

Plaintiffs argue that Newark intentionally discriminates by means of its screening process. The screening process does eliminate a disproportionate number of blacks and Hispanics as compared to whites from the hiring roster (Plaintiffs’ Complaint, ¶ 34 at A 22; Affidavit of Purnell Benson, A 225; Supplemental Answers to Plaintiffs’ Interrogatories, A 239). Furthermore, the screening procedure is “susceptible of abuse” on the basis of racial discrimination. See Castenda v. Partida, 430 U.S. 482, 494, 97 S.Ct. 1272, 1280, 51 L.Ed.2d 498 (1977). Newark apparently can discover the applicant’s race in a variety of ways, including a personal interview. Armed with this knowledge, Newark could, given the opportunity, make discriminatory hiring decisions. Allegedly, the person authorized to remove applicants from the eligibility roster has “wide discretionary powers which are exercised arbitrarily and without regard to ascertainable standards” (Plaintiffs’ Complaint, ¶ 34-C, at A 22).²⁹ If this is true, Newark could intentionally discriminate by means of the screening procedure used in hiring police officers. Had plaintiffs been allowed to present evidence on the mechanics and actual operations of the screening process, the fact finder might have been persuaded to infer Newark intended to discriminate in hiring police officers.

We hold that plaintiffs’ complaint and supporting affidavits, because they allege disproportionate impact and opportunity to intentionally discriminate by the exercise of arbitrary discretion, entitle plaintiffs to an opportunity to support the charge of intentional discrimination against Newark.³⁰ This holding does not mean that disproportionate impact, coupled with an opportunity to intentionally discriminate, constitutes discriminatory intent as a matter of law. To prove intentional discrimination, the opportunity to discriminate must be shown to have been exploited. The case before us, however, has not progressed to the proof stage. It must be remembered that this case is here on appeal from an order granting summary judgment for defendants on the § 1981 cause of action. Because this claim requires proof of intent, an element difficult to establish, summary judgment should be granted with caution. Foster v. Swift & Co., 615 F.2d 701, 702 (5th Cir. 1980); Hayden v. First National Bank of Mt. Pleasant, 595 F.2d 994, 997 (5th Cir. 1979).

Read in a light most favorable to plaintiffs, we find there is a dispute over a material fact: whether Newark intentionally discriminated on the basis of race by means of its screening procedure. The order granting summary judgment to defendant Newark and the superintendent of the Newark police department must, therefore, be vacated and the case remanded.

VI. CONCLUSION

The order of summary judgment on count I, the § 1981 claim, granted to defendants New Jersey Department of Civil Service, New Jersey Civil Service Commission, and all individual defendants employed by either of these two defendants will be affirmed. The count I summary judgment order in favor of Newark and the director of the Newark police department will be reversed in part. On remand, the district court need only consider whether Newark intentionally discriminated during the applicable limitations period by means of its allegedly arbitrary and standardless screening procedures. The summary judgment for Newark based on its liability for using the eligibility rosters either for hiring or promotion will be affirmed.

The dismissal of count II, the cause of action under Title VII, will be affirmed as to all defendants.

The motion to dismiss the appeal at No. 81-1133 will be denied.

1 . Count I also included allegations based on 42 U.S.C. § 1983 and the Thirteenth and Fourteenth Amendments. Summary judgment in favor of defendants was granted on these other claims also. Plaintiffs do not raise these claims on appeal.

2 . See judgment of April 29, 1980 (A 259) in accordance with Bronze Shields v. New Jersey Dept. of Civil Serv., 488 F.Supp. 723 (D.N.J.1980). On May 7, 1980, plaintiffs moved, pursuant to F.R.Civ.P. 59(a), to vacate the above judgment and to amend the complaint to include a new paragraph 42A as follows:

“The defendants have engaged in the aforesaid actions with the purpose and effect of depriving the members of the plaintiff class of equal employment opportunity because of their race or national origin.”

(A 261)

This motion was denied by order filed June 12, 1980 (A 262).

3 . The court’s dismissal of the Title VII cause of action followed its decision to deny plaintiffs’ motion for certification of a class. It is in the court’s opinion denying class certification, filed February 23, 1979, that the court concluded the EEOC charges had not been timely filed. The order dismissing count II was entered on April 2, 1979.

We note that Judge Meanor’s opinion of February 23, 1979, at note 1 (130A) refers to a pending pattern or practice suit brought by the Government. See United States v. State of New Jersey, et al. (D.N.J., Civil No. 79-184), under which broad relief would apparently be available to persons in the plaintiffs’ class qualifying under Title VII. See Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977).

4 . This is a simplified explanation of the requirements set out in N.J.Admin.C. tit. 4:1-8.1 et seq.

5 . Veterans, however, are placed at the top of the list as they have an absolute preference. N.J.Admin.C. tit. 4:1-11.2.

6 . This injunction was issued on the then well-founded belief that constitutional claims of racial discrimination in employment do not require a showing of discriminatory intent. Prior to the Supreme Court’s decision in Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), this Court of Appeals, like most others, held that a claim under § 1981, like one under Title VII, required only a showing of discriminatory impact, and not discriminatory intent. Erie Human Relations Comm’n v. Tullio, 493 F.2d 371, 373 n.4 (3d Cir. 1974). The Court in Washington admittedly rejected the generally accepted rule when it held that a showing of discriminatory intent was required for all constitutionally based claims of discrimination. Washington v. Davis, supra 426 U.S., at 244-45, 96 S.Ct. at 2049-50.

7 . As the district court correctly noted, unless plaintiffs have a cause of action in their own right, they cannot be certified as representatives of a class. Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975).

8 . The count I claims had already been dismissed against the New Jersey Department of Civil Service and the New Jersey Civil Service Commission. Certain individual defendants had been substituted. See note 2 of the district court’s opinion at 488 F.Supp. 723, 725 (D.N.J. 1980).

9 . The district court’s opinion addresses only the § 1981 claim but does dispose of the § 1983 and Fourteenth Amendment claims in a footnote. 488 F.Supp. 723, 731 n.18. No mention of the Thirteenth Amendment claim was made, but we assume, because it is not contested on appeal, that this claim was implicitly disposed of in the summary judgment order.

10 . None of the plaintiffs took and failed the examination for promotion (A 146).

11 . Plaintiffs claim on appeal that the use of the eligibility rosters for promotion presents a continuing violation. Because plaintiffs do not have standing to assert the claim, however, we need not consider this issue.

12 . Plaintiffs are without standing because none of the plaintiffs who filed charges with the EEOC were adversely affected by the screening. Plaintiffs Olivia Howard and Crawford took and failed the civil service examination so never reached the screening stage. The remaining plaintiffs who filed charges with the EEOC all survived the screening process and were hired as Newark police officers.

13 . Title VII § 706(e), 42 U.S.C. § 2000e-5(e) provides:

“A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred and notice of the charge (including the date; place and circumstances of the alleged unlawful employment practice) shall be served upon the person against whom such charge is made within ten days thereafter, except that in a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred, or within thirty days after receiving notice that the State or local agency has terminated the proceedings under the State or local law, whichever is earlier, and a copy of such charge shall be filed by the Commission with the State or local agency.”

14 . The 180-day limit applies because all the plaintiffs initially filed charges with the EEOC. A 300-day filing period would have applied had plaintiffs initially filed with the state agency. 42 U.S.C. § 2000e-5(e).

15 . The district court issued two unpublished opinions on the Title VII cause of action. The first opinion discusses continuing violations (A 129, et seq.), the second deals with equitable estoppel (A 154, et seq.).

16 . Below are listed just a few of the more recent law review commentaries on the continuing violation theory. The Continuing Violation Theory, 31 Hastings L. J. 929 (1980); Jackson and Matheson, The Continuing Violation Theory and the Concept of Jurisdiction in Title VII Suits, 67 Geo. L. J. 811 (1979); Title VII and the Continuing Violation Theory: A Return to Congressional Intent, 47 Fordham L.Rev. 894 (1979); Note: Continuing Violations of Title VII: A Suggested Approach, 63 Minn.L.Rev. 119 (1978).

17 . Bethel v. Jendoco Const. Corp., 570 F.2d 1168 (3d Cir. 1978); Wetzel v. Liberty Mutual Insurance Co., 508 F.2d 239 (3d Cir.), cert. denied, 421 U.S. 1011, 95 S.Ct. 2415, 44 L.Ed.2d 679 (1975); Guardians Ass’n of New York City v. Civil Serv., 633 F.2d 232 (2d Cir. 1980), cert. denied, 452 U.S. 940, 101 S.Ct. 3083, 69 L.Ed.2d 954 (1981); Acha v. Beame, 570 F.2d 57 (2d Cir. 1978); Clark v. Olinkraft Inc., 556 F.2d 1219 (5th Cir. 1977); Cedeck v. Hamiltonian Federal Savings & Loan Ass’n, 551 F.2d 1136 (8th Cir. 1977); Rich v. Martin Marietta Corp., 522 F.2d 333 (10th Cir. 1975); Macklin v. Spector Freight Systems, Inc., 478 F.2d 979 (D.C.Cir.1973); Cox v. United States Gypsum Co., 409 F.2d 289 (7th Cir. 1969).

18 . Hart v. J. T. Baker Chemical Corp., 598 F.2d 829, 831 (3d Cir. 1979); Baker v. Stuart Broadcasting Co., 560 F.2d 389, 391 (8th Cir. 1977). 29 C.F.R. § 1601.34 (1980) provides that the “rules and regulations shall be liberally construed to effectuate the purpose and provisions of Title VII.”

19 . Love v. Pullman Co., 404 U.S. 522, 92 S.Ct. 616, 30 L.Ed.2d 679 (1972); Smith v. American President Lines, Ltd., 571 F.2d 102, 105 (2d Cir. 1978).

20 . See cases cited in note 17, supra.

21 . For example, the recent Second Circuit case of Guardians Ass’n of New York City v. Civil Serv., 633 F.2d 232 (2d Cir. 1980), petition for cert, filed, 50 U.S.L.W. 3157 (Nos. 81-431, 81-432, Aug. 31, 1981), involved an issue similar to the oné presented here. That court held that the repeated use of an eligibility roster, based on a discriminatory written examination, to make hiring decisions constituted repeated violations of Title VII. We have considered carefully the January 20, 1981, letter from plaintiffs’ counsel and cannot agree with the contention at page 3 that “Ricks does not protect the defendants in this case from judicial correction of their wrongful practice."

The dissent incorrectly contends at typescript page 9 that this decision “flatly refuses to discuss” the cases of other circuit courts of appeals, such as Guardian Ass’n of New York City v. Civil Serv., supra, on which the dissent relies, even though the first 12 lines of this footnote and 13 lines of note 23 below refer to facts which distinguish that case from this record and point out places in this record where counsel for appellants’ arguments based on that case are enumerated. That case is also cited in the discussion of the continuing violation theory at typescript page 12. See note 17 above and text related to that note. Essentially, our difference with the dissent centers on the effect which Ricks has on Guardian and similar cases.

22 . Plaintiffs received actual notice of their failure in February 1975.

23 . The eligibility roster was published in May 1975; plaintiffs filed with the EEOC in July 1976; and Newark’s first and only use of the allegedly offending roster was in November 1977. Under the Second Circuit’s holding in Guardians Ass'n of New York v. Civil Service, 633 F.2d 232 (2d Cir. 1980), cert. denied, 452 U.S. 940, 101 S.Ct. 3083, 69 L.Ed.2d 954 (1981), had Newark used the list and hired recruits within 180 days before plaintiffs filed, their filings would have been timely. This is not the situation here. Newark did not hire any police officers from the roster prior to plaintiffs’ filing of their EEOC charges. Hence, even if we followed the theory of the Guardians case, there would have been no compliance with the requirement of filing within 180 days after the discrimination had occurred. In Firefighters Institute for Racial Equality v. City of St. Louis, 588 F.2d 235 (8th Cir. 1978), cert. denied, 443 U.S. 904, 99 S.Ct. 3096, 61 L.Ed.2d 872 (1979), the court held that although no promotions were granted or denied, the use of a testing device to make up a promotion list was a discriminatory act which established liability.

24 . See note 13 and text incident to that note.

25 . Plaintiffs implicitly admit that Evans did not clearly change the law of continuing violation. Their argument is premised on the condition that only if we read Evans as making their filings untimely did Evans change the law. while Evans narrowed the scope of the continuing violation theory, we do not interpret it, nor has any other court interpreted it, as extinguishing the continuing violation theory completely.

26 . See the law review commentaries cited in note 16, supra.

27 . Plaintiffs’ Opening Brief at 17.

28 . The litigation to which this refers is count I of the complaint in this case, filed in 1972.

29 . Plaintiffs’ complaint reads in part:

“34. On information and belief, defendant Redden and his agents and employees have discriminated against applicants in that the background investigation and interviews conducted by them exclude a disproportionate number of Black and Hispanic applicants in the following manner:

c) the investigators and the appointing authority generally have wide discretionary powers which are exercised arbitrarily and without regard to ascertainable standards.

d) the form required to be filled out by applicants inquires into matters irrelevant to the question of the fitness of the person to be a patrolman.

“35. The psychiatric examinations administered by defendant Redden, his agents and employees are not validated as job related, are culturally and ethnically biased, and, on information and belief, are administered in a discriminatory manner so as to exclude disproportionate numbers of black and Hispanic applicants.”

30 . We note that a similar arbitrary discretion is allegedly involved in the determination of the service rating, a factor involved in compiling the roster used for promotion of police officers. Plaintiffs’ Complaint, ¶¶ 36 and 38 at A 23-24. No plaintiff complains that he was given an undeservedly low rating or that the rating given affected his opportunity for promotion. The only plaintiffs concerned with the promotion roster were not placed on the roster because they either did not pass the written examination or did not fulfill the years-in-service requirement. Plaintiff Bronze Shield may have members who were adversely affected but it made no allegations on this point. Plaintiffs are without standing to challenge the use of the service rating.