JUANITA STOCKWELL; MICHAEL LEWIS; VINCE NEESON; GUILLERMO L. AMIGO; E. R. BALINTON; NIKOLAUS BORTHNE; EDWARD BROWNE; PETER BUSALACCHI; SILVIA DAVID; PHILIP FLECK; SEVERO FLORES; GEORGE FOGARTY; MALCOLM FONG; MARY GODFREY; JASON HUI; JACKLYN M. JEHL; RICHARD JUE; ROBERT LEUNG; PAUL LOZADA; D.H. BUD MASSEY; BRUCE MEADORS; THOMAS O'CONNOR; SUSAN ROLOVICH; JESSIE WASHINGTON; MICHAEL WELLS; GARY CASTEL; BARTHOLOMEW JOHNSON; MIKE BOLTE; JONES JAMES, Plaintiffs-Appellants,
CITY AND COUNTY OF SAN FRANCISCO, Defendant-Appellee
Argued and Submitted, San Francisco, California
September 10, 2013
Appeal from the United States District Court for the Northern District of California. D.C. No. 4:08-cv-05180-PJH. Phyllis J. Hamilton, District Judge, Presiding.
Michael S. Sorgen (argued), Andrea Adam Brott, and Ryan L. Hicks, Law Offices of Michael S. Sorgen, San Francisco, California; and Richard A. Hoyer, Hoyer and Associates, San Francisco, California, for Plaintiffs-Appellants.
Christine Van Aken (argued), Deputy City Attorney, Dennis J. Herrera, City Attorney, Elizabeth Salveson, Chief Labor Attorney, and Jonathan C. Rolnick, Deputy City Attorney, City of San Francisco, San Francisco, California, for Defendant-Appellee.
Before: J. Clifford Wallace, Raymond C. Fisher, and Marsha S. Berzon, Circuit Judges.
BERZON, Circuit Judge
Several San Francisco police officers (" the plaintiffs" or " the officers" ) over the age of forty performed well enough on an examination in 1998 to qualify for consideration for promotion to Assistant Inspector. They allege that a new policy of the San Francisco Police Department (" SFPD" ) abandoning the examination as a basis for certain assignments worked a disparate impact based on age. The plaintiffs sought certification of a class composed of all SFPD officers over forty who had qualified on the 1998 examination.
The district court denied certification for want of commonality. We permitted the officers to appeal the denial of class certification under Federal Rule of Civil Procedure 23(f), and now reverse, holding improper the district court's reliance on merits issues unrelated to the pertinent commonality inquiry.
Nearly three and a half decades ago, the Civil Service Commission of the City and County of San Francisco (" City" ) entered into a consent decree to settle allegations of employment discrimination in the SFPD on the basis of race, sex, and national origin, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq .
In late 1998, the district court terminated that consent decree. By stipulation of the parties, however, the district court retained jurisdiction over issues related to a recently administered promotional examination -- the Q-35 Assistant Inspector examination for promotion to the Investigations Bureau -- which the parties agreed would be governed by the terms of the consent decree. On the same day, the district court issued an order outlining promotion procedures for officers who had sat for the Q-35 Assistant Inspector examination. That order required a minimum of 175 Assistant Inspector appointments from the list of police officers who had passed the examination, arranged in order of exam performance (" Q-35 List" ). The first 110 promotions were to be made in rank order of performance. Subsequent appointments, the court ordered, " will be made from a sliding band that will start at rank 111. The band width is 84 points." The district court authorized the City to review various " secondary criteria" when making selections within that sliding band. Between 1998 and 2006, the City selected 229 police officers from the Q-35 List for promotion to Assistant Inspector.
In 2005, the Chief of Police announced a change in promotion policy: To improve operational flexibility and rationalize the
promotional progression, the SFPD would no longer promote Assistant Inspectors to the Investigations Bureau from the Q-35 List. Instead, the SFPD would administer a new Q-50 Sergeants examination and assign some newly promoted Sergeants, selected on the basis of their performance on the new exam, to the Investigations Bureau. Those Sergeants assigned to the Investigations Bureau would have duties previously assigned to Assistant Inspectors.
The City administered the Q-50 Sergeants Examination in 2006 and created a list of eligible officers (" Q-50 List" ) the following year. Soon thereafter, the SFPD began promoting Sergeants from the recently compiled Q-50 List, many of whom were given investigative duties. Assistant Chief Morris Tabak agreed, in a deposition taken in this case, that he knew of no reason " that those appointments could not have been made from the Q-35 list that resulted from the 1998 exam."
The officers initially filed this action in late 2008, alleging that SFPD's decision to use the Q-50 list instead of the Q-35 list for investigative assignments both constituted a pattern or practice of discrimination and generated a disparate impact on older officers in violation of the Age Discrimination in Employment Act (" ADEA" ), 29 U.S.C. § § 621-634. They also alleged parallel violations of California's Fair Employment and Housing Act (" FEHA" ), Cal. Gov't Code § § 12940-12951.
The officers subsequently sought certification of a class under their FEHA disparate impact claim. The district court denied the motion for certification, explaining that the officers failed to satisfy the requirements of ...