Class Status Faces Reboot for SF Police Officers

     (CN) - San Francisco police officers alleging age discrimination in the department deserve another look at their motion for class certification, the 9th Circuit ruled Thursday.
     About 30 police officers sued the City and County of San Francisco and the San Francisco Police Department in 2008 over a new promotion policy that they claimed discriminated against officers over the age of 40.
     The officers argued a case for disparate treatment after the department tossed the results of a promotion test dating back to 1998, the Q-35, and began promoting based on a new exam, the Q-50.
     They moved to certify a class composed of officers over 40 who had qualified for promotion on the Q-35 exam, but U.S. District Judge Phyllis Hamilton cited a lack of commonality and shot them down.
     A appellate panel unanimously reversed Thursday, finding that Hamilton should have stuck to the narrower question of whether the officers constituted a legal class rather than considering the merits of their claims.
     "The officers have identified a single, well-enunciated, uniform policy that, allegedly, generated all the disparate impact of which they complain: te SFPD's decision to make investigative assignments using the Q-50 List instead of the Q-35 List," Judge Marsha Berzon wrote for a three-judge panel. "Each member of the putative class was on the Q-35 List. Each suffered the effects of its elimination, whatever those were."
     At a September hearing , San Francisco's Deputy City Attorney Christine Van Aken argued that the plaintiffs had not been specific enough in their claims for commonality.
     "You have to look at everyone who was eligible for a particular promotion, identify the number of people in a protected class in that group and then look at the people who got the benefit that they wanted," Van Aken said.
     Berzon conceded that such defects in the plaintiffs' case may well exist, but that "they go to the merits of this case."
     "Given the interlocutory nature of this appeal, and its consequent limitation to class certification factors only, we may not consider the merits questions, even as an alternative ground for affirmance," she added.
     The panel remanded the case for a new look at the officers' arguments for certification.