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Police Officers’ Age Bias Class Action over Scrapped Exam Revived

By Robert A. Jones and Carolyn B. Hall  5/27/2014
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In an age discrimination class action, the 9th U.S. Circuit Court of Appeals found that the district court went too far in looking at the merits and reversed the district court’s denial of class certification.

A group of over-40 San Francisco police officers filed a class-action lawsuit claiming age discrimination after a new police chief abandoned use of a list of officers who had qualified for consideration to be promoted to the city’s Investigations Bureau by passing an examination. The new police chief instituted a different promotion procedure using a new examination that bypassed the older officers who had qualified on the earlier test, instead promoting officers from the newer, younger pool. The class-action lawsuit ensued after the chief promoted 35 younger officers, despite the fact that the over-40 group had already been deemed qualified. The plaintiff officers alleged that the city’s decision to use the newer list for promotions constituted both a pattern and practice of discrimination and generated a disparate impact on older officers in violation of the Age Discrimination in Employment Act and state nondiscrimination law.

The district court denied the officers’ motion for class certification on the grounds that the claims lacked commonality under Rule 23(a)(2) of the Federal Rules of Civil Procedure, and thus declined to evaluate whether the putative class satisfied the more rigorous Rule 23(b)(3) predominance and superiority requirements. The district court determined that the police officers’ statistical study (submitted to show disparate impact) failed to include a regression analysis that may have accounted for factors other than age that would have accounted for the alleged age-based disparate impact.

On appeal, the 9th Circuit found that this level of merits inquiry crossed the line articulated by the U.S. Supreme Court in Wal-Mart Stores Inc. v. Dukes, 131 S. Ct. 2541 (2011) for commonality and resulted in reversible abuse of discretion by the district court. The 9th Circuit panel concluded that the officers had “identified a single, well-enunciated, uniform policy that, allegedly, generated all the disparate impact of which they complain: the SFPD’s decision to make investigative assignments using the [new list] instead of the [old list]. Each member of the putative class was on the [old list]. Each suffered the effects of its elimination, whatever those were.” The 9th Circuit thus found a common question sufficient to meet the requirements of Rule 23(a)(2): “The question whether the policy has an impermissible disparate impact on the basis of age necessarily has a single answer.”

The 9th Circuit dismissed the many reasons the city had offered as to why the putative class or various of its members might not prevail, such as that the decision to scrap the old list affected all officers equally without regard to age, that all of the officers on the old list could have taken the new examination so no detrimental impact occurred due to the policy change, that there were no inspector appointments for several years of the class period, and that many class members would not have been promoted even if the old list were used as there were not enough positions for all of them. The 9th Circuit found that the defects the city identified could exist but held that whether class members could actually prevail on the merits of their claims was not a proper inquiry in determining the preliminary question—whether common questions existed. Stockwell v. City & County of San Francisco, 9th Cir., No. 12-15070 (April 24, 2014).

Professional Pointer: In Dukes, the high court held that the issue of commonality involves a “rigorous analysis,” which frequently “will entail some overlap with the merits of the plaintiff’s underlying claim.” This ruling signals that the 9th Circuit is drawing a much narrower line on merits analysis at the class certification stage than suggested by the Supreme Court.

Robert A. Jones and Carolyn B. Hall are attorneys in the San Francisco office of Ogletree Deakins, an international labor and employment law firm representing management.

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