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May 21, 2003


The opinion of the court was delivered by: Susan Illston, United States District Judge


Summary judgment has been granted to defendants. Accordingly, judgment is hereby entered in favor of defendants and against plaintiff.



On May 16, 2003, the Court heard argument on defendants' motion for summary judgment. Having carefully considered the arguments of counsel and the papers submitted, the Court hereby GRANTS the motion for the reasons set forth below.


A. Factual history

Plaintiff Janeith Glenn-Davis brings this employment action alleging that defendants denied her promotion to Captain at the Oakland Police Department because of her gender and/or pregnancy. Ms. Davis was hired as a police officer by the Oakland Police Department ("OPD" or "Department") on March 12, 1985. Davis Decl. ¶ 3. She was promoted to sergeant on March 11, 1994 and was promoted to lieutenant on June 20, 1998. Id. On October 1, 2002, Ms. Davis left the OPD to take a position as Chief of Police with Cal State Hayward. Davis Decl. ¶ 2. The events giving rise to this litigation occurred during the years 2000-2002, prior to plaintiffs appointment as Chief of Police at Cal State Hayward.

Based on the results of an examination, an eligibility list for promotion to the ranks of sergeant, lieutenant and captain is posted. Defendants' Supporting Evidence in Support of Motion for Summary Judgment, Exhibit B, Declaration of Richard Word, Exhibit 1, Memorandum of Understanding Between the City of Oakland and Oakland Police Officers' Association. This eligibility list is valid for eighteen months from the date it is posted. Id., paragraph 9. Only five candidates from each eligibility list are eligible for promotion. Id. paragraph 10. Chief of Police Richard Word makes recommendations for promotion of police officers within the Department; these recommendations are subject to the review of Dr. George Musgrove, the Assistant City Manager, who has the authority to approve or deny promotions within the Department regardless of the Chiefs recommendation. Word Decl. ¶ 3; Declaration of Dr. George Musgrove ¶ 4, Exhibit 1 to Defendants' Supporting Evidence in Support of Motion for Summary Judgment.

On July 3, 2000, the Department posted an eligibility list for captain; Ms. Davis was ranked number 4 on that list. Exhibit 2 to Word Decl. That list had an expiration date of January 2, 2002. Id. There is no rank order of promotion within the top five employees on the eligibility list; this is known within the department as the Rule of Five. Word Decl. ¶ 7. The two individuals ranked 2 and 3 on the list were promoted to captain in late September of 2000. Word Decl. ¶ 13. Lt. Rodney Yee, ranked number 2, filled the position of captain of Youth and Community Services, and Lt. Frank Lowe filled the position of captain of Special Operations. Id.

Plaintiff was placed in an Acting Captain position for Area 2 in January of 2001 when Area 2's then captain retired. Id. ¶ 15. Chief Word declared that it was his intention to promote plaintiff into the next available captain position. However, in the late summer of 2001, Dr. Musgrove made the decision not to promote anyone to the rank of captain, as a result of his belief that there was no need for nine captains positions, the number of captain positions in existence in the department at the time. Word Decl. ¶ 25; Musgrove Decl. ¶ 13-16. City Manager Bobb agreed with Dr. Musgrove, and determined to freeze any promotions to captain. Bobb Deposition, Exhibit C(1) to the Declaration of Rachel Wagner p. 28:14-18. Chief of Police Word was opposed to this plan, but the hiring freeze was instituted anyway. Word Decl. ¶ 24. No one else from the July 2000 eligibility list for captain was promoted from October 2000 to the expiration of the list on January 2, 2002. Musgrove Decl. ¶ 20; Word Decl. ¶ 27.

Plaintiff informed Deputy Chief Dunbar in late March or early April of 2001 that she was pregnant, but that she wanted to continue working in active patrol during her pregnancy. Davis Decl. ¶ 13. Plaintiff states that she was asked several questions about her pregnancy, use of maternity leave, and her future plans. Davis Decl. ¶ 15. On August 17, 200, plaintiff requested temporary reassignment from her Acting Captain position, because her pregnancy impaired her ability to perform field duties. Davis Decl. ¶ 18. She was reassigned to Area 1 as a lieutenant in Investigations. Id. In late July or August of 2001, plaintiff learned that Deputy Chief Dunbar had attempted to initiate an Internal Affairs investigation against her; the Internal Affairs Commander rejected this request. Davis Decl. ¶ 19. In September of 2001, plaintiff met with Deputy Chief Holland; she states that in this meeting he told her that Chief Word had voiced concerns over whether OPD was her number one priority, alluding specifically to plaintiff's involvement with the National Organization of Black Law Enforcement Executives. Davis Decl. ¶ 20. Plaintiff states that Deputy Chief Holland later told her that her August 2001 request for temporary reassignment had negatively affected her chances of promotion to captain. Davis Decl. ¶ 21. Plaintiff alleges that Police Chief Ward and City Manager Bobb allowed the eligibility list to expire in order to prevent her from becoming captain.

The next captain's exam was administered in late January of 2002. Word Decl. 29. In March 2002, Chief Word met with City Manager Bobb to urge a captain promotion in Area 2, the area in which he had desired to promote plaintiff to captain. Word Decl. ¶ 30. After this meeting, Bobb agreed to fill a captain position for Area 2. Word Decl. ¶ 31. A new eligibility list for promotion to captain was posted on or about March 15, 2002, and plaintiff ranked number 13 on that list. Word Decl. Exhibit 5. The individual ranked No. 1 on that list was promoted to captain in May 2002; no other individuals from that list have been promoted to captain. Word Decl. ¶ 32-34.

As of 2000, there were six female sergeants, compared to one hundred fourteen male sergeants in the OPD. Davis Decl. ¶ 4, Exhibit A to Davis Decl. For the majority of the time that Davis was a lieutenant, she was the only female lieutenant in the OPD, while there were twenty three male lieutenants. Davis Decl. ¶ 5, Exhibit A to Davis Decl. Davis states that during her over seventeen year tenure at the Department, only two women rose to ranks of captain or ...

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