No Class Cert for Stonewalled SF Cops

     SAN FRANCISCO (CN) – A federal judge has again rejected class status for a group of San Francisco police officers who say that age discrimination blocked their paths to promotion.
     For the third time, U.S. District Judge Phyllis Hamilton ruled that a group of more than 30 San Francisco police officers have not demonstrated that a class action is the best way to pursue their claims.
     She said that class litigation will not work because each officer’s claim that a promotion was due would still need to be evaluated individually, adding that if she were to grant class status on their state-law allegations, their federal claims would still have to be litigated individually.
     The police officers filed suit in 2008, fighting what they described as an “unchecked age bias that pervades the culture of the department.”
     They claim the department intentionally ditched a promotions system in which they were poised to advance to inspector positions, instead putting a new system in place in which no one nearing advancement under the old system was promoted.
     The new system allegedly promoted officers who had not taken the inspectors’ exam, but had instead taken an exam to become a sergeant, according to the officers.
     The city and county of San Francisco and the San Francisco Police Department were named as defendants alongside then-Police Chief Heather Fong. The suit alleges violations of both state and federal employment discrimination laws.
     “As a result of the city’s department-wide policies and practices, plaintiffs have been denied promotion, despite their qualifications and experience, to the rank of Q-35 Inspector and have earned substantially less than younger, less experienced officers,” the officers’ complaint states.
     They say the change had “a disparate impact on or constitute disparate treatment of SFPD officers age 40 and over.”
     In 2010, U.S. District Judge Phyllis Hamilton denied the cops’ first motion for class certification, finding that their expert had not shown that their claims had enough in common to create a class.
     They amended their complaint to address Hamilton’s concerns, but she again held that their claims lacked commonality.
     The officers appealed to the 9th Circuit, which reversed Hamilton in a ruling that said the claims commonly challenged a single policy. But the appeals court said that before a class could be certified, Hamilton must determine whether questions of law or fact that are common to all the suing officers predominate over questions that affect individual officers.
     Returning to Hamilton’s court with a third motion for class certification, the officers sought the status only for their California-law age discrimination claims, not their federal ones.
     In their motion, the officers gave the judge a choice between certifying 55 or 133 class members. They said that while there were 133 potential class members, those who had been on track for a shot at inspector promotions under the old system, only 55 inspector positions had been filled under the new system.
     Hamilton’s May 8 ruling said the officers satisfied just four of the six elements needed for certification.
     The core group of 55 potential class members met the requirement that class litigation is a practical alternative to joinder, according to the ruling.
     Hamilton said the claims of the five class representatives were typical of all 55, and the attorneys for the lead plaintiffs were adequate for all the potential class members. And the 9th Circuit took care of the commonality element in their reversal.
     However, on the element of predominance, Hamilton said that the officers failed to show that the 55 top test-takers would have automatically been promoted – prompting the need to look at the merits of each cop’s bid for promotion.
     “Simply put, each member of the class would need to present individualized evidence showing why he or she would have received a Q-35 promotion in a ‘but-for’ scenario, and each class member’s claim would need to be evaluated on an individualized basis,” Hamilton wrote.
     “Plaintiffs have attempted to show that promotions were made strictly in rank order, which would have obviated the need for any individualized analysis, but the evidence does not support their claim,” she added. “Thus, the court finds that plaintiffs have failed to meet their burden to show predominance of common issues over individual ones.”
     On the class certification element of superiority, Hamilton ruled that even if she had given the green light under California’s Fair Employment and Housing Act, the officers would still have to make their federal Age Discrimination in Employment Act claims individually, meaning that class litigation would not be superior to individually litigated claims.
     And while plaintiffs’ reasoning in hearings and in briefs suggested they would dismiss the federal claims if granted class certification on the state claims, they have not yet asked to dismiss their federal case, Hamilton said.
     “Plaintiffs overlook the fact that, before any FEHA liability is determined, both the FEHA claim and the ADEA claim would need to be litigated side-by-side,” she wrote.
     “The court must evaluate ‘superiority’ based on the case currently presented, not on a hypothetical pared-down version of the case,” she concluded.

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