Stevenson v. City of S.F.

Decision Date05 January 2016
Docket NumberNo. C-11-4950 MMC,C-11-4950 MMC
CourtU.S. District Court — Northern District of California
PartiesAARON C. STEVENSON, et al., Plaintiffs, v. THE CITY AND COUNTY OF SAN FRANCISCO, et al., Defendants.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

Before the Court is the "Motion for Summary Judgment, or in the Alternative, Partial Summary Judgment," filed August 7, 2015, by defendants City and County of San Francisco, San Francisco Fire Department, San Francisco Fire Commission, and Civil Service Commission of San Francisco (collectively, "the City"). Plaintiffs Aaron C. Stevenson ("Stevenson"), Kevin D. Taylor ("Taylor"), Kevin W. Smith ("Smith"), Audry Lee ("Lee") and Kirk W. Richardson ("Richardson") have filed opposition, to which the City has replied. Further, with leave of court, plaintiffs have filed a surreply. Having read and considered the papers filed in support of and in opposition to the motion, the Court deems the matter suitable for decision thereon,1 and rules as follows.

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BACKGROUND

Plaintiffs, each of whom is African-American and employed or formerly employed by the City in its Fire Department, challenge various employment decisions by the City as discriminatory or retaliatory. On behalf of each said plaintiff, plaintiffs challenge the City's use of a particular examination that was given for the purpose of creating a list of persons eligible for promotion to the position of H-50 Assistant Chief, as well as the City's use of that list to promote persons other than plaintiffs. Plaintiffs also challenge the City's decision not to promote Taylor and Smith to certain other positions. Additionally, plaintiffs allege that Stevenson and Lee were constructively discharged, that Stevenson and Smith were improperly disciplined for rules violations or other conduct at the workplace, that Taylor and Smith were subjected to improper investigations into certain workplace activities, and that Smith was improperly denied a transfer and given a negative evaluation. In each instance, plaintiffs allege that the challenged decisions by the City violated Title VII and the Fair Employment and Housing Act ("FEHA"), and, as to certain of the challenged acts, 42 U.S.C. § 1981 and 42 U.S.C. § 1983 as well.

LEGAL STANDARD

Pursuant to Rule 56 of the Federal Rules of Civil Procedure, a "court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." See Fed. R. Civ. P. 56(a).

The Supreme Court's 1986 "trilogy" of Celotex Corp. v. Catrett, 477 U.S. 317 (1986), Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), and Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 (1986), requires that a party seeking summary judgment show the absence of a genuine issue of material fact. Once the moving party has done so, the nonmoving party must "go beyond the pleadings and by [its] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." See Celotex, 477 U.S. at 324 (internal quotation and citation omitted). "When the moving party has carried its burden under Rule 56[ ], its opponent must do more than simply show that there issome metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. "If the [opposing party's] evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Liberty Lobby, 477 U.S. at 249-50 (citations omitted). "[I]nferences to be drawn from the underlying facts," however, "must be viewed in the light most favorable to the party opposing the motion." See Matsushita, 475 U.S. at 587 (internal quotation and citation omitted).

DISCUSSION

The City argues it is entitled to summary judgment on each of plaintiffs' claims, which claims, as stated above, are based on a number of allegedly adverse employment acts. The Court considers in turn each such act and, in particular, whether the City is entitled to summary judgment on the claims alleged by plaintiffs with respect thereto.

A. H-50 Examination and Subsequent Failures to Promote

Plaintiffs challenge the examination given by the City in 2010 for the position of H-50 Assistant Chief; plaintiffs also challenge the City's subsequent use of the results of that examination to fill positions.

1. Facts2

In 2009, the City decided to conduct an examination for the H-50 Assistant Chief position in the Fire Department. (See Hayes-White Decl. ¶ 6; Randle Decl. Ex. A at 44:13-17.) In connection therewith, the City first conducted a "job analysis" (see Randle Decl. Ex. A at 46:16-18), in which the City used Art Kenney ("Assistant Chief Kenney"), "the only incumbent permanent Assistant Chief," as the "Subject Matter Expert (SME)" (see Johnson Decl. ¶ 11), after which the City's Department of Human Resources ("DHR") staff designed the test in "consult[ation]" with Assistant Chief Kenney and with Patrick Gardner ("Deputy Chief Gardner"), the Fire Department's Deputy Chief of Operations, who supervised the Assistant Chiefs (see id. ¶¶ 5, 15-16). The examination was given in 2010. (See Hayes-White Decl. ¶ 6.) Twenty-three persons, including each plaintiff, took the examination.(See Johnson Decl. ¶¶ 22, 35, Ex. G.) At that time, Stevenson and Lee each held the position of H-50 Assistant Chief on a "provisional" or "acting" basis (see Hayes-White Decl. ¶¶ 4, 18; Stevenson Decl. ¶¶ 87-89), and the remaining three plaintiffs, Smith, Richardson, and Taylor, each held the position of H-40 Battalion Chief (see Smith Dec. ¶ 4; Richardson Decl. ¶ 4; Taylor Decl. ¶ 5).

The first component of the examination was given on August 8, 2010, specifically, the "fire scene simulation exercise" ("FSSE"). (See Randle Decl. Ex. D at 13, 18, 20.) The candidates were given "four different scenarios," one of which, for example, was a "high rise scenario" (see id. Ex. D at 18); as to each scenario, the candidates were provided with certain "written and visual information," such as "photos of the fire building," and each scenario was presented to the candidate "via a recorded audio narration." (See id.) Each candidate "responded orally to the questions," the responses were "recorded via digital recorder" (see id.), and a "verbatim transcription of the candidate's verbal responses to the test questions" was prepared (see id. Ex. D at 24). On October 30, 2010, the candidates took the second component of the examination, specifically, the "supervision and counseling exercise" ("S/PCE"). (See id. Ex. D at 13, 19-20.) In the first step of that exercise, a "role-play," each candidate played the role of "an Assistant Chief, counseling a Battalion Chief,"3 which role-play was "recorded using a video camcorder"; in the second step of the exercise, each candidate "document[ed] the meeting" in writing." (See id. Ex. D at 19.)

For both exercises, a committee met to "develop the answer (aka scoring) key" (see id. Ex. D at 20), and the scoring keys developed were used during the rating process.4 The responses to the FSSE were rated by a team of two, each of whom first made an "independent assessment" after reviewing a "transcription of the candidate's verbalresponses to the test questions," (see id. Ex. D at 23-24), after which the two raters "would confer and reach [a] consensus on the assigned ratings" (see id. Ex. D at 24), and then record the consensus score on a form (see Johnson Decl. ¶ 33). The S/PCE raters "evaluated the counseling session by viewing and listening to the video recording, and evaluated the written documentation of the meeting." (See id.)5

Thereafter, each candidate's score was calculated by the DHR, based on the numbers set forth on the forms completed by the raters. (See id. ¶¶ 2, 35.) Specifically, the DHR "weighted" the "[r]aw scores" and then "converted" the raw scores "to a score on a 700-1000 point scale for presentation on [a] candidate eligible list." (See id. ¶ 35.) Lee scored less than 700 and was not placed on the "eligible list." (See id.) The remaining 22 applicants, including Smith, Taylor, Richardson and Stevenson, were included on the eligible list; Smith, Taylor, Richardson and Stevenson ranked, respectively, 13, 20, 21, and 22. (See id. Ex. G.)

On December 20, 2010, the H-50 eligible list was "post[ed]" (see id. ¶ 41, Ex. G), and was in effect until January 2015 (see Hayes-White Decl. ¶ 15). During the period of time when the list was in effect, the Fire Department was prohibited by "Civil Service Rules" from filling an H-50 position other than by use of the list. (See id. ¶ 17.) In conformity therewith, the Chief of the Fire Department, Joanne Hayes-White ("Chief Hayes-White") announced that "effective January 21, 2011, H-50 provisional and acting assignments [would] be rescinded" (see id. Ex. E), and that persons holding such assignments would "revert" to the position they last held on a permanent basis, which, in the case of Stevenson and Lee, was H-40 Battalion Chief (see id. ¶ 18).

On January 22, 2011, Stevenson and Lee retired. (See Rolnick Decl. Ex. 6 at 58:2-4, Ex. 8 at 217:20-24.) Also, on January 22, 2011, Chief Hayes-White "assigned the first four candidates on the H-50 list, David Franklin, Kevin Burke, Thomas Siragusa, and Matthew McNaughton, to acting assignments as H-50 Assistant Chiefs" (see Hayes-WhiteDecl. ¶ 18), and those promotions became "permanent" on June 11, 2011 (see id. ¶ 19). In July 2011, Chief Hayes-White promoted Tom Siragusa to a different position, and then "assign[ed] Michael Morris, the sixth ranked candidate on the list, as an acting H-50 Assistant Chief . . . . in place of Tom Siragusa." (See id. ¶ 22.)6 Lastly, on September 7, 2011, Chief Hayes-White appointed Robert Postel, who ranked fifth on the eligible list, to a "permanent civil service H-50 Assistant Chief's position." (See id. ¶ 21.) David Franklin, Kevin Burke, Thomas...

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