Stockwell v. City of S.F.

• Decision Date: 24 April 2014
• Docket Number: No. 12–15070.,12–15070.
• Citation: 749 F.3d 1107
• Parties: 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, v. CITY AND COUNTY OF SAN FRANCISCO, Defendant–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

749 F.3d 1107

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,

v.CITY AND COUNTY OF SAN FRANCISCO, Defendant–Appellee.

No. 12–15070.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Sept. 10, 2013.

Filed April 24, 2014.

Michael S. Sorgen (argued), Andrea Adam Brott, and Ryan L. Hicks, Law Offices of Michael S. Sorgen, and Richard A. Hoyer, Hoyer and Associates, San Francisco, CA, 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, CA, for Defendant–Appellee.

Appeal from the United States District Court for the Northern District of California, Phyllis J. Hamilton, District Judge, Presiding. D.C. No. 4:08–cv–05180–PJH.

Before: J. CLIFFORD WALLACE, RAYMOND C. FISHER, and MARSHA S. BERZON, Circuit Judges.

OPINION

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.

I.

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 both Federal Rules of Civil Procedure 23(a)(2) and 23(b)(3).

After denial of certification, the officers filed a Second Amended Complaint alleging only a disparate impact theory of liability, again under both the ADEA and FEHA. Several months later, the officers renewed their motion for class certification of the FEHA claim,¹ proposing as the class to be certified SFPD “officers who were aged forty and older as of each of the dates of the challenged appointments in 2007, 2008, and 2009 and who could have been appointed to investigative positions had the City properly made appointments from the Q–35 List.” The putative class defined an officer “who could have been appointed,” as an officer within the 84–point selection band at the time SFPD assigned a sergeant to investigative work. The officers further proposed the creation of separate subclasses for those who could have been appointed at each date. Certification was sought under Rule 23(b)(3). As the common question required for certification, Fed.R.Civ.P. 23(a)(2), the officers asserted a common question of fact: “[W]hether the City's employment practice of appointing Sergeants exclusively from the Q–50 List to investigative positions traditionally performed by Assistant Inspectors and refusing to make any of the appointments from the active Q–35 List, had a disparate impact on qualified applicants for the investigative positions who were aged forty or above at the time of those appointments, in violation of FEHA.”

The district court denied the renewed motion for class certification for want of commonality. Having disposed of the motionon that ground, the district court expressly declined to rule on the officers's argument that the putative class satisfied the requirement of Rule 23(b)(3), which requires both that common questions “predominate over any questions affecting only individual members” of the class and “that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.”

The officers timely sought permission to appeal under Rule 23(f), which authorizes discretionary review of an interlocutory order granting or denying class certification. SeeFed.R.Civ.P. 23(f); see also Chamberlan v. Ford Motor Co., 402 F.3d 952, 959 (9th Cir.2005) (per curiam) (describing the standards we employ to guide our discretionary authorization of appeals under Rule 23(f)). This Court granted permission for the appeal, and the officers timely perfected it. SeeFed. R.App. P. 5(d).

II.

Federal Rule of Civil Procedure 23(a)(2) conditions class certification on demonstrating that members of the proposed class share common “questions of law or fact.” Such commonality is one of four “threshold requirements” contained in Rule 23(a); the other three are numerosity, typicality, and adequacy of representation.²See, e.g., Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 613, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). Together, these requirements seek to “limit the class claims to those fairly encompassed by the named plaintiff's claims.” Wal–Mart Stores, Inc. v. Dukes, ––– U.S. ––––, 131 S.Ct. 2541, 2550, 180 L.Ed.2d 374 (2011) (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 156, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982)) (internal quotation marks omitted).

Wal–Mart instructed that, although Rule 23(a)(2) refers to common “questions of law or fact” in the plural, “ ‘[e]ven a single [common] question’ will do.” Id. at 2556 (alterations in original) (quoting id. at 2566 n. 9 (Ginsburg, J., dissenting)). We have since clarified “that Rule 23(a)(2) requires ... ‘a single significant question of law or fact.’ ” Abdullah v. U.S. Sec. Assocs., Inc., 731 F.3d 952, 957 (9th Cir.2013) (emphasis in original) (quoting Mazza v. Am. Honda Motor Co., 666 F.3d 581, 589 (9th Cir.2012)).

Rule 23(a)(2) is not “a mere pleading standard,” so establishing commonality sometimes requires affirmative evidence, which the courts must subject to “rigorous analysis.” Wal–Mart, 131 S.Ct. at 2551 (quoting Falcon, 457 U.S. at 161, 102 S.Ct. 2364). Such rigor often “will entail some overlap with the merits of the plaintiff's underlying claim.” Id. While some evaluation of the merits frequently “cannot be helped” in evaluating commonality, id., that likelihood of overlap with the merits is “no license to engage in free-ranging merits inquiries at the certification stage.” Amgen Inc. v. Conn. Ret. Plans & Trust Funds, ––– U.S. ––––, 133 S.Ct. 1184, 1194–95, 185 L.Ed.2d 308 (2013)....