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Alison N. Terry v. City of San Diego

May 18, 2011

ALISON N. TERRY,
PLAINTIFF,
v.
CITY OF SAN DIEGO, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge

ORDER PURSUANT TO FED. R.CIV. P. 16(d) [Doc. Nos. 130, 133]

On April 4, 2011, the Court held a Final Pretrial Conference ("Conference"). Appearances were made by Plaintiff Terry's counsel, Michael Conger and Defendant City of San Diego's ("Defendant" or "City") counsel, Joe Cordileone. Pursuant to Federal Rule of Civil Procedure 16(d), the Court issues this order to recite the actions taken at the Conference, and resolve outstanding issues in preparation for trial.

I.TRIAL DATE RESET

The trial date set for June 1, 2011 is VACATED, and RESET for October 26, 2011 at 9:00 a.m. in Courtroom 5. The parties are directed to contact the chambers of Magistrate Judge Bencivengo to schedule a settlement conference.

II. DEFENDANT'S MOTION IN LIMINE TO "PRECLUDE PLAINTIFF FROM PRESENTING EVIDENCE OF []DISPARATE IMPACT CLAIM[S]UNLESS SHE DEMONSTRATES THAT SHE HAS STANDING TO BRING SUCH []CLAIM[S]." [Doc. No. 133]

(A) Background

Defendant seeks to preclude Plaintiff from presenting evidence in support of her disparate impact claims on grounds that Plaintiff lacks standing. Defendant contends the average female Life Guard I ("LG1") received an "Outstanding" or "Commendation" ("O/C") rating 9% percent of the time, while the average male received an O/C rating 23.8% of the time. Defendant argues Plaintiff received an O/C rating 80% of the time, more than three times as often as the average male LG1, and therefore was not disadvantaged. Defendant further contends Plaintiff voluntarily resigned from her position with the lifeguard service, and cannot establish redressibility.

Plaintiff responds she has standing to bring her disparate impact claims because pecuniary injury is a sufficient basis for standing. She contends that if she demonstrates liability on a disparate impact theory she is entitled to back pay and front pay. Plaintiff contends redressibility is available because in addition to back pay and front pay, the Court may order injunctive relief to remedy the alleged discriminatory effects of the City's lifeguard service promotional practices.

At the February 28, 2011 motion in limine hearing, the Court tentatively granted Defendant's motion to the extent Defendant sought to preclude evidence supporting a disparate impact theory, but denied Defendant's motion to the extent the motion challenged standing. The Court tentatively found that although Plaintiff initially had standing to bring the claim, the claim had been rendered moot. [Doc. No. 180.] If Plaintiff's employee performance ratings ("EPRs") were above average, it was indiscernible to the Court how she would be injured by the lifeguard service's use of EPRs in its hiring procedure. The Court's mootness concerns also rested on Plaintiff's ability to establish redressibility. See Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 162 (2d. Cir. 2001) (for an employee to "obtain individual relief (e.g., back or front pay) . . . [the employee] must show that he or she was among those adversely affected by the challenged policy or practice."); see generally, Walsh v. Nevada Dept. of Human Resources, 471 F.3d 1033, 1036 (9th Cir. 2006) (plaintiff not likely to be redressed for injunctive relief because she "is no longer an employee of the Department" and "there is no indication in the complaint that [she] has any interest in returning to work" for the defendant.). At the request of the Court, the parties filed supplemental briefs on the issue of whether Plaintiff's disparate impact claims are moot.

(B) Discussion

"While standing is concerned with who is a proper party to litigate a particular matter, the doctrines of mootness and ripeness determine when that litigation may occur. Mootness has been described as the doctrine of standing set in a time frame: the requisite personal interest that must exist at the commencement of litigation (standing) must continue throughout its existence (mootness)." Hawaii County Green Party v. Clinton, 14 F. Supp. 2d 1198, 1201 (D. Hawai'i. 1998), citing United States Parole Comm'n v. Geraghty, 445 U.S. 388, 397 (1980) (internal quotation omitted). "A moot action is one where the issues are no longer 'live' or the parties lack a cognizable interest in the outcome." Id, quoting Murphy v. Hunt, 455 U.S. 478, 481 (1982) (per curiam).

Plaintiff has demonstrated her disparate impact claims are not moot. Plaintiff clarified her position that even if Plaintiff received the best evaluation ratings "80 percent of the time," the City's lifeguard service utilizes only the most recent three consecutive year ratings when deciding Lifeguard II promotions. [Doc. No. 164 at 3; Doc. No. 184 at 10.] Plaintiff intends to demonstrate she did not receive the highest ratings in all three years before she applied for promotion to Lifeguard II, and therefore the City's use of EPRs in the promotional process dramatically reduced or injured her chances of promotion. Plaintiff sufficiently establishes her claims that she suffered injury are not moot.*fn1

Plaintiff has further demonstrated she may be entitled to redressibility under her disparate impact claims. Under both Title VII and FEHA, an employee may obtain back pay where he or she establishes a disparate impact violation. 42 U.S.C. § 2000e-5(g); Cal. Gov. Code §§ 12965; 12970; Lutz v. Glendale Union High School, 403 F3d 1061, 1069 (9th Cir. 2005). The Court's concern that Plaintiff could no longer establish redressibility was based in part on grounds that if she was not among those adversely affected, she would not be able to obtain relief. See, Robinson, 267 F.3d at 162. As Plaintiff has shown she may be among those adversely affected by the City's use of EPRs in the promotional process, she also has established her claims are capable of redress.*fn2

Accordingly, the Court DENIES Defendant's motion in limine to preclude Plaintiff from presenting evidence of disparate impact claims. [Doc. No. 133.]

III. DEFENDANT'S MOTION TO BIFURCATE PLAINTIFF'S CLAIM[S] OF DISPARATE IMPACT FROM HER CLAIMS OF DISPARATE TREATMENT ...


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