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VAN POOL v. CITY OF SAN FRANCISCO

December 10, 1990

RONALD J. VAN POOL, JAMES R. HENTZ, MICHAEL C. PAPERA, DANIEL SULLIVAN, PATRICK M. SKAIN, JOHN P. O'SHEA, and MATTHEW W. PLESCIA, Plaintiffs,
v.
THE CITY AND COUNTY OF SAN FRANCISCO, a Municipality, SAN FRANCISCO COMMISSION OF THE CITY AND COUNTY OF SAN FRANCISCO, a Municipal Agency, ART AGNOS, MAYOR of The City and County of San Francisco, Defendants, SAN FRANCISCO BLACK FIREFIGHTERS ASSOCIATION, CHINESE FOR AFFIRMATIVE ACTION, et al., Applicants in Intervention



The opinion of the court was delivered by: PATEL

 Plaintiffs bring this action for monetary, injunctive, and other relief under California Government Code §§ 12900-12996, Article I, § 8 of the California Constitution, and 42 U.S.C. §§ 1981 and 1983. The parties are now before the court on defendants' and defendant-intervenors' motion to dismiss or, alternatively, motion for summary judgment. Having considered the submissions and arguments of the parties, the court GRANTS summary judgment for defendants as to all four causes of action.

 BACKGROUND

 I. CONSENT DECREE

 Plaintiffs, white male firefighters employed by the San Francisco Fire Department ("Department"), each sat for the H20 Fire Lieutenant qualifying examination in 1984. The name of each plaintiff subsequently appeared on the Civil Service list of those eligible to be promoted to fire lieutenant, with his ranking based upon the 1984 test results. In October 1986, during class action litigation before this court charging employment discrimination and racial harassment in the Fire Department, the City announced to the court that it would not defend the validity of several firefighter recruitment and promotional examinations, including the 1984 H20 test. The City Civil Service Commission then cancelled the related eligibility lists. United States v. City and County of San Francisco, 656 F. Supp. 276, 281 (N.D. Cal. 1987) (" Davis I "); Joint Statement of Undisputed Facts ("Joint Statement") paras. 1-7.

 In February 1987, the court granted plaintiffs' motion for partial summary judgment in Davis I and found that the 1984 H20 selection and promotion procedures "[fell] within the definition of employment practices proscribed by Title VII." Davis I at 282. The court also awarded injunctive relief against the City, which included a mandate for development of new H20 tests.

 Large portions of the permanent injunction were subsequently incorporated into a proposed consent decree. Paragraph 16 of the decree provided that, within sixty days of its execution, the City would promote twenty-seven Black, Hispanic, and Asian or Filipino firefighters to the rank of lieutenant, selecting those who scored highest on the 1984 H20 exam as reflected in the eligibility list. United States v. City and County of San Francisco, 696 F. Supp. 1287, 1316 (N.D. Cal. 1988) (" Davis II "), aff'd as modified sub nom. Davis v. City and County of San Francisco, 890 F.2d 1438 (9th Cir. 1989), cert. denied, 498 U.S. 897, 111 S. Ct. 248, 112 L. Ed. 2d 206 (1990). The decree permitted the promotion of an additional forty-eight firefighters from the eligibility list, so long as twenty-five percent (25%) of those promoted were from the above-mentioned minority groups. Id.

 II. PARTICIPATION BY LOCAL 798

 By order dated April 11, 1985, Local 798, International Association of Firefighters, AFL-CIO ("Local 798"), was given leave to intervene as a party-defendant in Davis II. Joint Statement para. 6; Joint Statement, Ex. B. The Union filed its answer in intervention on May 8, 1985. Joint Statement, Ex. C. None of the individual plaintiffs in the present action participated as a party or intervenor in either Davis I or Davis II.

 In December 1987, following the grant of summary judgment for plaintiff-intervenors and the filing of the proposed consent decree, Local 798 filed specific objections to the proposed consent decree, including a challenge to the mandatory hiring of specific numbers of minority candidates. Joint Statement, Ex. E.

 In its review of the statutory and constitutional validity of the consent decree, the court considered and rejected the objections made by the Union and by individuals and approved the decree on May 20, 1988. Davis II, 696 F. Supp. at 1307-11. Neither Local 798 nor any of plaintiffs signed the consent decree. Pl. Opp. at 5.

 Pursuant to the decree, on June 30, 1988, the Department promoted eighty-one firefighters to the position of lieutenant. Order Granting Injunction, August 26, 1988, at 5; Joint Statement para. 13. None of the seven plaintiffs was promoted. All currently hold the rank of H2 firefighter in the Department. Joint Statement para. 1.

 In December 1988, Local 798 filed an appeal from the court's approval of the consent decree with the Ninth Circuit Court of Appeals. Joint Statement, Ex. N. On December 4, 1989, the Ninth Circuit issued its decision affirming the court's approval of the consent decree and upholding the fairness and legality of the decree against Local 798's challenge. United States v. City and County of San Francisco, 890 F.2d 1438 (9th Cir. 1989).

 On August 7, 1990, Local 798 filed a petition for a writ of certiorari in the United States Supreme Court seeking review of the Ninth Circuit decision. Joint Statement, Ex. O. On October 9, 1990, the Supreme Court denied the petition. 498 U.S. 897, 112 L. Ed. 2d 206, 111 S. Ct. 248 (1990).

 III. PARTICIPATION BY PLAINTIFFS

 Each of the plaintiffs has held continual membership in Local 798 since first joining the Department during the 1970's. Local 798 is the authorized collective bargaining agent for members of the Department. Id. at P 2.

 A. Fairness Hearings

 During the December 1987 fairness hearings on the proposed consent decree, plaintiffs O'Shea, Plescia and Van Pool were among the 113 persons who filed individual objections in addition to Local 798's objections to the decree. Id. at P 10.

 B. Departmental Complaint Procedure

 In July 1988, following the promotions mandated by the consent decree, plaintiffs Hentz, Papera, Plescia, Sullivan and Van Pool filed complaints of racial discrimination with the Department. Each complainant alleged that he had been denied promotion to the rank of lieutenant in favor of less qualified members of minority groups who had been promoted pursuant to paragraph 16 of the consent decree. Joint Statement, Exs. P, R, T, W, BB.

 Although both the July Report and Fourth Report provided that individuals could file a request for court review of the monitor's rulings pursuant to Rule 53 of the Federal Rules of Civil Procedure, none of the plaintiffs filed such a request. Joint Statement para. 38.

 C. DFEH Complaints

 Between August and October 1988, plaintiffs individually filed complaints with the California Department of Fair Employment and Housing ("DFEH"). Joint Statement, Exs. Q, S, U, Y, Z, CC, GG. Each complainant alleged that the City and County's implementation of paragraph 16 of the consent decree and the failure to promote him to the rank of lieutenant in June 1988 constituted discrimination on the basis of race. DFEH closed each case, finding that the city's denial of promotions to plaintiffs was mandated by and in accordance with the consent decree. DFEH then issued right-to-sue letters to plaintiffs. Id. at PP 19-21.

 PROCEDURAL HISTORY

 Plaintiffs originally filed this suit in state court as a class action, collaterally attacking the consent decree on state constitutional and statutory grounds. The suit was removed to this court under the court's continuing jurisdiction over the consent decree. Plaintiffs then filed a First Amended Complaint, adding claims under 42 U.S.C. § 1981 and under the fourteenth amendment to the United States Constitution.

 Plaintiffs subsequently filed a proposed Second Amended Complaint, adding claims under Title VII and under 42 U.S.C. § 1983, and moved for class certification. Both motions were heard on July 16, 1990.

 At the hearing, the court identified deficiencies in the proposed amended complaint, including the following problems: the alleged discriminatory acts under section 1983 took place more than a year before the filing of the action, thus barring the suit under the applicable statute of limitations, Transcript July 16, 1990 at 12-17; many of the acts complained of were directly pursuant to the consent decree and so were also time-barred, Transcript at 14-15; and the claims of discriminatory environment were too abstract and amorphous. Transcript at 17, 19.

 The court requested that plaintiffs redraft their proposed Second Amended Complaint to detail with specificity the nature of their section 1981 claims; the relevance of particular examinations and resulting lists; what happened to these particular plaintiffs within the one-year statute of limitations; and whether the complaint relates to subsequent examinations or appointments. The court further required that the amended claims under FEHA comport with and not exceed "the scope of the charge"; that the section 1983 claims detail with specificity particular adverse actions or conduct alleged to constitute a deprivation of due process; and that all actions or conduct in support of the section 1983 claim have occurred within the one-year statutory period. Id. at 22-23. In addition, plaintiffs withdrew their motion for class certification, id. at 23, and their Title VII claim.

 Plaintiffs filed their redrafted Proposed Second Amended Complaint (hereinafter "Amended Complaint") on July 26, 1990. The complaint states that defendants have engaged in discriminatory employment practices in violation of (1) the California Fair Employment and Housing Act; (2) Article I, § 8 of the California Constitution; (3) 42 U.S.C. § 1981; and (4) 42 U.S.C. § 1983. The proposed complaint is no longer denominated a class action.

 Defendants and defendant-intervenors now move for summary judgment and, with respect to pleading deficiencies in the Amended Complaint, for dismissal of defective claims without leave to amend. They argue first that plaintiffs' FEHA claims are barred by collateral estoppel on the ground that plaintiffs' interests and claims were adequately represented in Local 798's participation as intervenor and appellant in Davis II. In addition, defendants argue that the claim for relief under FEHA includes actions and events that exceed the scope of the charge filed with the DFEH, which concerned discrimination arising solely from the June 1988 promotions, and therefore must be dismissed.

 Second, defendants argue that plaintiffs' claims under section 1981 are not cognizable under the Court's recently articulated standard in Patterson v. McLean Credit Union, 491 U.S. 164, 109 S. Ct. 2363, 105 L. Ed. 2d 132 (1989), which requires that a cause of action under section 1981 allege interference with plaintiff's right to enter into contracts or to enforce contracts through legal process. Defendants assert that the actions complained of do not affect plaintiffs' rights to enter contracts or to enforce them through legal process. In addition, defendants argue that the claim under section 1981 is barred by the applicable statute of limitations.

 Third, defendants argue that plaintiffs' claims under section 1983 must fail because they have alleged no acts constituting intentional discrimination causing cognizable harm to individual plaintiffs within the applicable statute of limitations.

 Finally, defendants argue that the claim under Article I, section 8 of the California Constitution is collaterally estopped by previous litigation under section 1983 or, in the alternative, is barred by the one-year statute of limitations for general personal injury claims.

 DISCUSSION

 I. CLAIM FOR VIOLATION OF FEHA

 Plaintiffs allege that defendants have engaged in employment practices, including but not limited to assignments, administration of Departmental rules, discipline, promotions and opportunities for advancement, in violation of the California Fair Employment and Housing Act ("FEHA"), Government Code §§ 12900-12996, which prohibits employment discrimination based, inter alia, on race, color, national origin, or sex. Plaintiffs allege damages including loss of earnings and benefits, promotional opportunities, and medical and psychiatric expenses incurred as a result of defendants' actions. They also seek attorneys' fees pursuant to Government Code Section 800.

 The gravamen of plaintiffs' alleged cause of action appears to be a series of actions enumerated in paragraph 26 of the Amended Complaint, including the refusal to promote plaintiffs to the rank of lieutenant in June 1988, the denial of plaintiff O'Shea's request to participate in departmental recruiting, and specific administrative and disciplinary acts taken ...


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