United States District Court, N.D. California
ORDER DENYING RENEWED MOTION FOR CLASS CERTIFICATION
PHYLLIS J. HAMILTON, District Judge.
Before the court is plaintiffs' renewed motion for class certification. The court held a hearing on plaintiffs' motion on October 22, 2014. Plaintiffs Juanita Stockwell, Jacklyn Jehl, Terrye Ivy, Michael Lewis, and Vince Nesson, on behalf of the putative class, and 25 other named plaintiffs (collectively, "plaintiffs") appeared through their counsel, Richard Hoyer, Ryan Hicks, and Michael Sorgen. Defendant City and County of San Francisco ("defendant" or "the City") appeared through its counsel, Jonathan Rolnick.
Having read the parties' papers, including their supplemental briefs, and carefully considered their arguments and the relevant legal authority, and good cause appearing, the court DENIES plaintiffs' renewed motion for class certification as follows.
This case arises out of allegations of age discrimination in employment. Plaintiffs bring this action on behalf of a putative class of similarly situated individuals who worked for the San Francisco Police Department ("SFPD") and who were allegedly denied advancement opportunities because of their age.
The operative second amended class action complaint ("SAC") alleges that each of the plaintiffs is a SFPD officer with extensive investigative experience, and who took and passed the test for a Q-35 Assistant Inspector position. SAC, ¶ 12. Traditionally, the City had filled its investigative positions by promoting officers from the Q-35 list. Id., ¶ 18. However, starting in 2007, the City began assigning investigative duties to newly-promoted Sergeants who had taken the Q-50 exam, rather than to Assistant Inspectors promoted from the Q-35 list. Plaintiffs allege that the practice of filling investigative positions from the Q-50 list had a substantial adverse impact on officers over the age of forty. Id., ¶ 22.
As a result of the Q-50 hiring practice, plaintiffs filed this suit, seeking to represent "themselves individually and all similarly-situated officers over 40 years old against whom [the City] has discriminated on the basis of age by implementing its policy and practice of promoting officers exclusively from the Q-50 list for investigative positions traditionally held by Q-35 Inspectors in lieu of the older qualified officers on the Q-35 list." SAC, ¶ 23.
Throughout this case, plaintiffs have asserted two causes of action: one under California's Fair Employment and Housing Act ("FEHA"), and one under the federal Age Discrimination in Employment Act ("ADEA"). In the operative SAC, the FEHA claim is asserted by five named representative plaintiffs on behalf of a putative class, whereas the ADEA claim is asserted by those same five plaintiffs in their individual capacities, as well as by 25 additional individual plaintiffs. Plaintiffs now seek class certification with respect to their FEHA claim, but do not seek certification of a class or collective action under the ADEA.
Plaintiffs have sought class certification on their FEHA claim twice before. The court denied the first attempt in August 2010 on multiple grounds. First, with regard to the Rule 23(a) factors, it found that the numerosity, typicality, and adequacy prongs were met, but that plaintiffs' expert report, which purported to provide statistical evidence of disparate impact based on age, suffered from deficiencies that precluded a finding of commonality. See Dkt. 75 at 11-14. Second, with regard to the Rule 23(b)(3) factors,  the court found that plaintiffs had "not provided the court with an opportunity to make any determinations" regarding predominance, as their papers did "not undertake any sort of demonstration regarding the existence of any common questions of law or fact that predominate over individual issues." Id. at 18-19. Thus, the court held that it had "no foundation upon which to undertake a predominance analysis, " which, standing alone, warranted denial of plaintiffs' motion. However, the court still addressed the "superiority" prong of Rule 23(b)(3), and found that "even certification of a class under FEHA would still leave the court with thirty-nine... individual ADEA claims to adjudicate, " and thus, "certification hardly streamlines the issues to be litigated at trial." Id. at 19.
After denial of the first class certification motion, plaintiffs sought leave to file an amended complaint, and filed a second motion for class certification. Among other things, the second motion included a revised expert report that attempted to address the concerns noted by the court in its previous denial of class certification. After considering the revised expert report, the court again found that the evidence failed to show that the City's practice of making investigative promotions from the Q-50 list had a disparate impact on certain employees because of their age. See Dkt. 117 at 11-12. Even though that issue went to the merits, the court read the Supreme Court's then-recent decision in Wal-Mart Stores v. Dukes to require such an inquiry into the merits as part of the "commonality" analysis, and thus denied plaintiffs' second motion for lack of commonality. The court further held that it "need not reach the question of whether plaintiffs have satisfied the requirements of FRCP 23(b)(3)." Id. at 12.
Plaintiffs appealed the court's denial of the second motion for class certification, and the Ninth Circuit reversed. 749 F.3d 1107 (9th Cir. 2014). While the Ninth Circuit took no position on whether "the statistical showing the officers have made" was "adequate to make out their merits case, " it held that any such question went "to the merits of this case, or to the predominance question, " but did not affect the commonality analysis. Id. at 1116. Instead, the commonality prong was met simply because "the officers are all challenging a single policy they contend has adversely affected them, " and "[t]he question whether the policy has an impermissible disparate impact on the basis of age necessarily has a single answer." Id . The Ninth Circuit then held that the arguments regarding "predominance" were inadequately briefed by the parties, and that such questions would be "best addressed by the district court" on remand. Id. at 1117.
Plaintiffs have now filed a third motion for class certification, referred to in this order as the "renewed motion for class certification." Plaintiffs seek certification of a FEHA-only class under Rule 23(b)(3), and do not seek certification of a class or a collective action with regard to their ADEA claims.
In their motion, plaintiffs raised an issue for which the court requested clarification at the hearing. Plaintiffs acknowledged (in a footnote) that "[t]here are 133 potential class members, but the City made only 55 appointments between 2007 and 2009 to positions that did the investigative work that had previously been done by the Q-35s." See Dkt. 134 at 15, n.9. In other words, even if the City had never undertaken the allegedly-discriminatory hiring practice (i.e., making promotions to investigative positions from the Q-50 list), only 55 individuals from the Q-35 list could have been promoted.
At the hearing, plaintiffs' counsel made two alternative arguments. First, they argued that the damages from the 55 "but-for" promotions should be aggregated and divided pro rata among the 133 putative class members. However, plaintiffs' counsel also offered a "fallback position, " in which the court would certify a class of only 55 individuals. Plaintiffs argued that, if the City had continued to make promotions from the Q-35 list, it would have filled the 55 positions by promoting the 55 highest-ranked officers on the list. Thus, the court could certify a class of 55 and avoid any overbreadth issues that might doom a class of 133.
Because the "class of 55" proposal was not fully addressed in the parties' briefs, the court ordered supplemental briefing on the issue. The court also requested clarification on how plaintiffs intended to proceed on their ADEA claims if a FEHA class were to be certified. As mentioned above, in denying plaintiffs' first class certification motion, the court found that the presence of individual ADEA claims would affect the "superiority" analysis under Rule 23(b)(3). To those ends, the court directed the parties to address the following three issues in supplemental briefing: (1) whether defendant had a practice of making promotions in rank order, or whether it took into account secondary criteria or other individualized characteristics, and how defendant's practice affected the "predominance" analysis; (2) which of the named plaintiffs, and which of the class representatives, are included among the top-ranked 55 individuals on the Q-35 list; and (3) how plaintiffs intend to proceed on their ADEA claims, given that they sought certification only on their FEHA claims. See Dkt. 142 at 2-3.
A. Legal Standard
"Before certifying a class, the trial court must conduct a rigorous analysis' to determine whether the party seeking certification has met the prerequisites of [Federal Rule of Civil Procedure] 23." Mazza v. American Honda Motor Co., Inc., 666 F.3d 581, 588 (9th Cir. 2012) (citation and quotation omitted). The party seeking class certification must affirmatively demonstrate that the class meets the requirements of Rule 23. Wal-Mart Stores, Inc. v. Dukes, ___ U.S. ___, 131 S.Ct. 2541, 2551 (2011); see also Gen'l Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 156 (1982). Thus, in order for a plaintiff class to be certified, the plaintiff must prove that he/she meets the requirements of Federal Rule of Civil Procedure 23(a) and (b). As a threshold matter, and apart from the explicit requirements of Rule 23, the party seeking class certification must also demonstrate that an identifiable and ascertainable class exists. Mazur v. eBay Inc., 257 F.R.D. 563, 567 (N.D. Cal. 2009).
Rule 23(a) requires that plaintiffs demonstrate numerosity, commonality, typicality and adequacy of representation in order to maintain a class. Mazza, 666 F.3d at 588. That is, the class must be so numerous that joinder of all members individually is "impracticable;" there must be questions of law or fact common to the class; the claims or defenses of the class representative must be typical of the claims or defenses of the class; and the class representative must be able to protect fairly and adequately the interests of all members of the class. See Fed.R.Civ.P. 23(a)(1)-(4).
If the class is ascertainable and all four prerequisites of Rule 23(a) are satisfied, the court must also find that the plaintiff has "satisf[ied] through evidentiary proof" at least one of the three subsections of Rule 23(b). Comcast Corp. v. Behrend, 133 S.Ct. 1426, 1432 (2013). A class may be certified under Rule 23(b)(1) upon a showing that there is a risk of substantial prejudice or inconsistent adjudications from separate actions. Fed.R.Civ.P. 23(b)(1). A class may be certified under Rule 23(b)(2) if "the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole." Fed.R.Civ.P. 23(b)(2). Finally, a class may be certified under Rule 23(b)(3) if a court finds that "questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." Fed.R.Civ.P. 23(b)(3).
"[A] court's class-certification analysis... may entail some overlap with the merits of the plaintiff's underlying claim.'" Amgen Inc. v. Conn. Ret. Plans and Trust Funds, 133 S.Ct. 1184, 1194 (2013) (quoting Dukes, 131 S.Ct. at 2551). Nevertheless, "Rule 23 grants courts no license to engage in free-ranging merits inquiries at the certification stage." Id. at 1194-95. "Merits questions may be considered to the extent - but only to the extent - that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied." Id. at 1195. If a court concludes that the moving party has met its burden of proof, then the court has broad discretion to certify the class. Zinzer v. Accuflix Res. Inst., Inc., 253 F.3d 1180, 1186, amended by 273 F.3d 1266 (9th Cir. 2001).
B. Legal Analysis
As mentioned above, plaintiffs are pursuing two alternative theories of the class - one that includes 133 putative class members, and a "fallback position" that includes only 55 putative class members (made up of the 55 highest-ranked individuals remaining on the Q-35 ...