S.F. Cops Claiming Age Bias Battle in 9th Circuit

     SAN FRANCISCO (CN) – Police officers put a pin in their age bias arguments Tuesday as the 9th Circuit examined why a federal judge denied class standing.
     “This is a case about class action certification,” Judge Marsha Berzon said early in the hearing. “Both parties, at some points, seem to lose track of that distinction.”
     Determining whether the District Court properly ruled on class certification is the narrow issue before the three-judge panel of the federal appeals court, she added.
     “If we start getting into the merits, we’re getting into an interlocutory appeal which you don’t have any right to,” Berzon said.
     The case before the court was filed in 2008 by more than 30 San Francisco police officers, fighting what they described as an “unchecked age bias that pervades the culture of the department.”
     They claimed that the department intentionally ditched a promotions system based on an exam in which they were poised to advance to inspector positions. Once the new system was in place, no one who had been 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.
     The City and County of San Francisco and the San Francisco Police Department were named as defendants alongside then-Police Chief Heather Fong.
     “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 amended complaint stated.
     These “hiring practices have a disparate impact on or constitute disparate treatment of SFPD officers age 40 and over,” the officers added.
     U.S. District Judge Phyllis Hamilton refused to grant the officers class certification in late 2011, however, finding that the plaintiffs failed to “demonstrate that there’s a common issue of age discrimination to explain why the plaintiffs did not get promoted to an investigative position.”
     The order relied in particular on the U.S. Supreme Court’s recent resolution in Wal-Mart v. Dukes, which made it tougher for plaintiffs in discrimination suits to attain class certification.
     Justice Antonin Scalia wrote in the majority opinion: “Quite obviously, the mere claim by employees of the same company that they have suffered a Title VII injury, or even a disparate impact Title VII injury, gives no cause to believe that all their claims can productively be litigated at once.”
     Michael Sorgen told the 9th Circuit on Tuesday the police officers, his clients, had been subject to a policy that resulted in a disparate impact. He urged the court to remand the case with instructions to certify the class as well as guidance on how the lower court should gauge the merits of the case.
     The lawyer told Judge Berzon that he was raising the merits because, “Your Honor, with all due respect, the district judge did get into the merits,” Sorgen replied.
     Berzon again emphasized, however, that only the class certification was at issue.
     “Well, that may be, and that may be an error,” she said.
     With no need to discuss the merits, Sorgen said: “I guess I have much less to say on this appeal because it appears clear that there was a substantial disparate impact that basically reduced the chance that the over-40 employees would get to do the investigative work.”
     Deputy City Attorney Christine Van Aken meanwhile insisted that a claim for disparate impact must follow specific statistical guidelines.
     “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.
     Juanita Stockwell and her fellow plaintiff officers had “sliced and diced the statistics so that their eligible pool artificially became people over 40,” Van Aken said.
     Judge Berzon interrupted, saying, “And therefore, if they are wrong they lose [at trial].”
     Pressing ahead, the judge said that the plaintiffs’ “essential contention is that, because everybody on this list is over 40 and because if there had not been one new policy, they would have gotten a job, that’s the end, they win. Your answer is ‘No, it’s not the end, they lose.’ Why isn’t that a unitary question with a unitary answer?”
     Berzon was referring to the standard for commonality the U.S. Supreme Court made clear in Wal-Mart.
     Van Aken said she interpreted Wal-Mart differently, but Judge J. Clifford Wallace noted: “There wasn’t a common policy in Wal-Mart, there were supervisors with policies all over. Here, there’s just one policymaking group. I don’t see where Wal-Mart helps you.”
     Insisting that the class should not be certified, Van Aken argued: “The Wal-Mart decision said that any intelligent plaintiff’s lawyer can articulate a commonality, but that’s not enough. You have to test that commonality against the standards of the law, and to do that you sometimes have to test the merits.”

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