Ninth Circuit reverses denial of class certification in age discrimination case

by Jocelyn Larkin, guest blogger

The Ninth Circuit issued a favorable opinion yesterday in Stockwell v. City and County of San Francisco, No. 12-15070, reversing the denial of class certification in a disparate impact age discrimination class action.  The opinion was written by Judge Marsha Berzon, and joined by Judges Fisher and Wallace.  The decision deals only with the district court’s determination that Rule 23(a)(2) commonality was not satisfied, concluding that the lower court (Judge Hamilton) impermissibly considered merits questions.

The case involves a 1998 promotion test (the Q-35) used by the San Francisco Police Department to fill Assistant Inspector positions and to create a list for future promotions.  (The test was administered at the tail end of a consent decree covering race and gender discrimination in the PD and was subject to the court’s jurisdiction.)  In 2005, before the Q-35 promotion list was exhausted, the Department decided to administer and use a new Sergeants’ exam (Q-50) to fill openings equivalent to Assistant Inspector.   The Chief of Police claimed that the change was being made to “improve operational flexibility and rationalize the promotional progression.”  Those remaining on the Q-35 list sued under ADEA and the California Fair Employment and Housing Act, alleging that the decision had a disparate impact on those over 40. (After a first failed attempt at class certification, plaintiffs dropped their disparate treatment claim.)

The district court concluded that Rule 23(a) was not satisfied because plaintiffs’ statistical report did not establish “significant proof of a general policy of discrimination” under Dukes.  The court found that, even if the analysis correctly showed that individuals over 40 were disproportionately affected by the abandonment of the list, that analysis failed to show causation, i.e. that age was the reason that the class was adversely affected.  The court also resolved, in favor of the defendant, numerous challenges to the statistical methodology.

The Ninth Circuit opinion includes virtually no discussion of the district court’s reasoning.  Instead, the court began by quoting both Amgen v. Conn. Ret. Plans & Trust Funds, 133 S. Ct. 1184, 1194-95 (2013) and Ellis v. Costco Wholesale Corp., 657 F.3d 970, 983 n.8 (9th Cir. 2011) for the proposition that “demonstrating commonality does not require proof that the putative class will prevail on whatever common questions it identifies.”  Here the plaintiffs identified “a single, well-enunciated, uniform policy” – the decision to “make investigative assignments using the Q-50 list rather than the Q-35 list.”

The court concluded that the plaintiffs produced a statistical study “purportedly showing a disparate impact” and “whatever the failings of the class’s statistical analysis, they affect every class member’s claims uniformly.”  Questions raised by the City about the statistics “strengthened, not weakened, the case for certification, as it has identified a common question, the resolution of which will uniformly affect all members of the class.”  Those alleged defects go to “the merits” or the “predominance question.” In a footnote (n.3), the court noted that the City’s affirmative defenses were not relevant to Rule 23(a)(2) commonality.

The panel remanded for consideration of whether the case satisfied Rule 23(b)(3) predominance.

The significance of this decision is that the court used Amgen to walk back some of the worst language in Wal-Mart, requiring proof on the merits at class certification (i.e. significant proof of a general policy of discrimination).