Stockwell et al v. City and County of San Francisco et al

Filing 142

ORDER re supplemental briefing on renewed motion for class certification. Signed by Judge Hamilton on 10/22/2014. (pjhlc2, COURT STAFF) (Filed on 10/22/2014)

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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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JUANITA STOCKWELL, et al.,
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Plaintiffs,

No. C 08-5180 PJH

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v.
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For the Northern District of California

United States District Court

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CITY AND COUNTY OF SAN
FRANCISCO, et al.,

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ORDER RE SUPPLEMENTAL BRIEFING
ON RENEWED MOTION FOR CLASS
CERTIFICATION

Defendants.
_______________________________/

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Plaintiffs’ renewed motion for class certification came on for hearing before this court

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on October 22, 2014. Plaintiffs Juanita Stockwell, Jacklyn Jehl, Terrye Ivy, Michael Lewis,

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and Vince Nesson, on behalf of the putative class, and 25 other named plaintiffs

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(collectively, “plaintiffs”) appeared through their counsel, Richard Hoyer. Defendant City

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and County of San Francisco (“defendant”) appeared through its counsel, Jonathan

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Rolnick.

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At the hearing, plaintiffs’ counsel made a number of concessions regarding the

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nature of the class for which certification is sought. Specifically, plaintiffs clarified that they

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were now pursuing a theory originally described as their “fallback position,” that only 55 of

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the 133 putative class members had suffered any injury, as any promotions from the Q-35

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list would have been made in rank order. Thus, plaintiffs conceded that the only class that

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could be certified, based on the current state of the evidence, is one limited to the 55 top-

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ranked individuals on the Q-35 list. Plaintiffs further conceded that only one of the five

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class representatives is among those 55 top-ranked individuals1, and only “two or three” of

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the other 25 named plaintiffs are among the 55 top-ranked individuals. In so doing,

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plaintiffs also conceded that any plaintiffs who did not fall within the top 55 would not have

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a valid claim under either California’s Fair Employment and Housing Act (“FEHA”) or under

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the Age Discrimination in Employment Act (“ADEA”), and further conceded that any class

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representatives who fall outside the top 55 would not have claims that are typical of the

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class and would not adequately represent the class.

putative class, and is not asserted by the plaintiffs in their individual capacities; and further

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explained that their ADEA claims are brought by plaintiffs only in their individual capacities,

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For the Northern District of California

Plaintiffs also explained that their FEHA claim is brought only on behalf of the

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United States District Court

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and not on behalf of a collective. Plaintiffs then further represented that, if the court were to

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grant certification on a FEHA class, that they would voluntarily dismiss their ADEA claims.

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Plaintiffs’ concessions address many of the court’s concerns regarding certification,

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especially regarding the “predominance” requirement of Rule 23(b)(3). However, these

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concessions also raise a number of new questions that were not adequately addressed by

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the parties’ prior briefing. The court finds that these issues will be best addressed through

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supplemental briefing on the following issues.

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First, before any class can be certified, the parties must fully address the issue of

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whether defendant had a practice of making promotions in rank order, or whether it took

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into account secondary criteria or other individualized characteristics. Specifically, the

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parties must present evidence, or specifically identify evidence of record, regarding the

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promotion of Sergeants from the Q-50 list, and the promotion of Assistant Inspectors from

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the Q-35 list (during the time when defendant still made promotions from that list). And as

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discussed at the hearing, plaintiffs must support their expert’s opinion that promotions were

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made in rank order by directly comparing the ranked Q-50 list with the list of officers who

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After the hearing, plaintiffs’ counsel filed a letter indicating that all five class
representatives are among the 55 top-ranked individuals on the Q-35 list.
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were ultimately promoted, and similarly, by directly comparing the ranked Q-35 list with the

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list of officers who were ultimately promoted. The parties must also present their

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arguments regarding how this evidence affects the “predominance” analysis.

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Second, plaintiffs must clearly identify which of the named plaintiffs, and which of the

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class representatives, are included among the top-ranked 55 individuals on the Q-35 list.

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Third, plaintiffs must explain how they intend to proceed on their ADEA claims if a

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FEHA class were to be certified. At the hearing, plaintiffs appeared to indicate that all

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ADEA claims would be voluntarily dismissed (i.e., not just the ADEA claims of plaintiffs who

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fell outside of the top 55 on the Q-35 list) if a FEHA class were certified, but the court
requires further clarification. Here, the court notes that plaintiffs’ plan directly affects the

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For the Northern District of California

United States District Court

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analysis under Rule 23(b)(3), because if plaintiffs intend on pursuing their ADEA claims on

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an individual basis (i.e., not as a collective action), then class treatment of the FEHA claims

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may not be the superior method of adjudicating the controversy.

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The parties must address the foregoing topics in supplemental briefing. Plaintiffs are

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directed to file a supplemental brief, not to exceed fifteen (15) pages, by November 5,

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2014. Defendant may then file a response, not to exceed fifteen (15) pages by November

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19, 2014. Plaintiffs may then file a reply, not to exceed five (5) pages by November 26,

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2014. The court will not likely hold any further hearings on this motion. In view of this order

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for supplemental briefing, defendant need not separately file the citations discussed at the

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hearing, rather, those citations shall simply be included in its response to plaintiffs’

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supplemental brief.

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IT IS SO ORDERED.
Dated: October 22, 2014

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______________________________
PHYLLIS J. HAMILTON
United States District Judge

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