SF Police Age Bias Class Case Revived

More than 40 San Francisco police officers may pursue age bias claims against the city based on the department’s 1998 decision to scrip its promotional exam for assistant inspector.

The 9th U.S. Circuit Court of Appeals reinstated the officers’ class action lawsuit on April 24, saying U.S. District Judge Phyllis Hamilton erred in denying the officers class status.

The court found that Hamilton had  evaluated the merits of the officers claims rather than focusing on whether or not the class shared common legal issues.

It sent the case back for reconsideration of class certification, with a more limited review.

The class of officers claim the department’s decision to abandon the examination for assistant inspector in 1998 had a disproportionate impact on older officers.

Hamilton had denied the class certification saying the issues in the case were not common to all the members of the proposed class and thus could not be resolved through class action.

For more than 30 years, the San Francisco Police Department has operated under a federal court consent decree to settle claims of race and sex discrimination in the department.  That decree was terminated in 1998, but the court retained authority over the promotional exam for assistant inspector promotion to the Investigative Bureau.

At that time, the court ruled that a minimum of 175 appointments from the list of officers who passed be arranged in order of exam performance.  The first 110 promotions were to be made in rank order of performance.  Subsequent appointments, the court said, will be made within a “sliding band” of within 84 points and make take into account “secondary criteria.”  But by 2005, the department changed its policy for promotion and took results of a sergeants exam, and assigned some newly promoted sergeants based on their performance on the exam.

More than 40 officers in the original test group sued arguing the decision fell hardest on older officers.

Judge Marsha Berzon said, at the class certification stage, the trial judge may only consider the merits of the class claims to the extent necessary to decide if they share common issues.

She said the officers only needed to identify a single common legal or fact question to qualify as a class and did not need to prove they might ultimately prevail on that issue.

This is the second time the class certification was denied at the trial court level.

The current appeal is based on Hamilton’s 2010 denial of class certification, this time on the ground that the officers’ statistical proof fell short of showing common questions among the class members.

Berzon relied partly on a U.S. Supreme Court decision that was issued a year after Hamilton’s denial of class certification.  That case, Amgen Inc. v. Connecticut Retirement Plans & Trust Funds, was a securities fraud case but as applied by Berzon may allow easier class certification in employment class actions, such as this, because the judge would conduct a less onerous review of claims.

The ruling is one of the first appellate decisions to use the Amgen ruling to make employment-related class actions easier.

Judges J. Clifford Wallace and Raymond Fisher joined Berzon in the ruling.

Case:  Stockwell v. City of San Francisco,  No. 12-15070


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