Johnson v. City and County of San Francisco et al

Filing 179

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT. Joint Case Management Statement due by 3/25/2016. Case Management Conference set for 4/1/2016 11:00 AM in Courtroom 5, 2nd Floor, Oakland. Signed by Judge Jeffrey S. White on 2/8/16. (jjoS, COURT STAFF) (Filed on 2/8/2016)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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MARK JOHNSON, FRANCO S. CALZOLAI,
and MICHAEL R. BRYANT,

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No. C 09-05503 JSW
Plaintiffs,

For the Northern District of California

United States District Court

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v.
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ORDER GRANTING IN PART
AND DENYING IN PART
DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT

THE CITY AND COUNTY OF SAN
FRANCISCO, THE CIVIL SERVICE
COMMISSION OF SAN FRANCISCO, and
THE SAN FRANCISCO FIRE
DEPARTMENT,

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Defendants.
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Now before the Court is the motion for summary judgment filed by the City and County

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of San Francisco (“the City”). The Court finds this matter suitable for disposition without oral

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argument. See N.D. Cal. Civ. L.R. 7-1(b). Accordingly, the hearing set for February 19, 2016

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is VACATED. Having carefully reviewed the parties’ papers and considered their arguments

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and the relevant authority, and good cause appearing, the Court hereby DENIES the City’s

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motion for summary judgment.1

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The Court DENIES Plaintiffs’ motion to strike the late-filed Exhibit C to the
declaration of Jonathan Rolnick as the delay was inadvertent error and caused no prejudice.
The Court GRANTS Plaintiffs’ administrative motion to file under seal. The Court
GRANTS Plaintiffs’ motion for leave to file written responses to Defendants’ evidentiary
objections made on reply.
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BACKGROUND

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Plaintiffs Mark Johnson, Franco S. Calzolai, and Michael R. Bryant (“Plaintiffs”) filed

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suit claiming their rights under the United States Constitution and state law were violated when

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they were denied promotions to Battalion Chief in the San Francisco Fire Department due to

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their performance on a Civil Service examination for the position (“the H-40 examination”).

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Plaintiffs claim the administration of the H-40 examination resulted in disparate impact against

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African Americans.

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This Court granted summary judgment in favor of the City by order dated March 29,

part. The Ninth Circuit reversed and remanded for further consideration of Plaintiff’s claims for

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For the Northern District of California

2012. On appeal, the Ninth Circuit Court of Appeals affirmed that order in part and reversed in

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United States District Court

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disparate impact discrimination in violation of 42 U.S.C. section 1981, Title VII of the Civil

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Rights Act of 1964 (“Title VII”), and the California Fair Employment and Housing Act

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(“FEHA”). (Memorandum of U.S. Court of Appeals, Docket No. 138 (“Memo”), at 4-5, citing

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remaining claims 1, 3, and 4.)

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The Court shall address specific, additional facts as necessary in the remainder of this
order.

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ANALYSIS
A.

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Legal Standard Applicable to Motion for Summary Judgment.
A principal purpose of the summary judgment procedure is to identify and dispose of

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factually unsupported claims. Celotex Corp. v. Cattrett, 477 U.S. 317, 323-24 (1986).

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Summary judgment is proper when the “pleadings, depositions, answers to interrogatories, and

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admissions on file, together with the affidavits, if any, show that there is no genuine issue as to

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any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R.

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Civ. P. 56(c). “In considering a motion for summary judgment, the court may not weigh the

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evidence or make credibility determinations, and is required to draw all inferences in a light

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most favorable to the non-moving party.” Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir.

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1997).

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The party moving for summary judgment bears the initial burden of identifying those

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portions of the pleadings, discovery, and affidavits that demonstrate the absence of a genuine

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issue of material fact. Celotex, 477 U.S. at 323. An issue of fact is “genuine” only if there is

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sufficient evidence for a reasonable fact finder to find for the non-moving party. Anderson v.

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Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). A fact is “material” if it may affect the

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outcome of the case. Id. at 248. If the party moving for summary judgment does not have the

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ultimate burden of persuasion at trial, that party must produce evidence which either negates an

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essential element of the non-moving party’s claims or that party must show that the non-moving

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party does not have enough evidence of an essential element to carry its ultimate burden of
persuasion at trial. Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir.

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For the Northern District of California

United States District Court

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2000). Once the moving party meets its initial burden, the non-moving party must go beyond

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the pleadings and, by its own evidence, “set forth specific facts showing that there is a genuine

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issue for trial.” Fed. R. Civ. P. 56(e).

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In order to make this showing, the non-moving party must “identify with reasonable

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particularity the evidence that precludes summary judgment.” Keenan v. Allan, 91 F.3d 1275,

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1279 (9th Cir. 1996). In addition, the party seeking to establish a genuine issue of material fact

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must take care adequately to point a court to the evidence precluding summary judgment

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because a court is “‘not required to comb the record to find some reason to deny a motion for

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summary judgment.’” Carmen v. San Francisco Unified School Dist., 237 F.3d 1026, 1029 (9th

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Cir. 2001) (quoting Forsberg v. Pacific Northwest Bell Telephone Co., 840 F.2d 1409, 1418

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(9th Cir. 1988)). If the non-moving party fails to point to evidence precluding summary

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judgment, the moving party is entitled to judgment as a matter of law. Celotex, 477 U.S. at 323.

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B.

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Purposeful Discrimination Claim is Dismissed.
The parties agree and the Ninth Circuit already ruled that there is insufficient evidence

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to create a triable issue of fact as to the intent element of Plaintiffs’ original claim for

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purposeful discrimination under 42 U.S.C. section 1981. (See Memo at 5-6 (citing Vasquez v.

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County of Los Angeles, 349 F.3d 634, 640 (9th Cir. 2003).) Accordingly, the City’s motion for

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summary judgment is GRANTED as to this claim.
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C.

Questions of Fact Remain on Disparate Impact Claims.
On remand, the Ninth Circuit tasked this Court to make a determination, among other

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things, “whether a statistically significant disparity resulted from the eligibility criteria

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challenged by Plaintiffs.” (See Memo at 5 (citing Contrares v. City of Los Angeles, 656 F.2d

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1267, 1272-74 (9th Cir. 1981)).)

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A claim for disparate impact discrimination challenges “employment practices that are

group than another and cannot be justified by business necessity.” Int’l Brotherhood of

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Teamsters v. United States, 431 U.S. 324, 335 n.15 (1977); see also Guz v. Bechtel National,

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Inc., 24 Cal. 4th 317, 354 (2000) (finding that California courts will look to pertinent federal

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For the Northern District of California

facially neutral in their treatment of different groups but that in fact fall more harshly on one

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United States District Court

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precedent when applying state discrimination statutes). In order to establish a prima facie claim

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of disparate impact discrimination, a plaintiff must identify the employment practice

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challenged, show disparate impact on a protected group, and prove causation with respect to

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each challenged practice. See Wards Cove Packing Co. v. Antonio, 490 U.S. 642, 656-58

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(1989). The distinctly factual issue of demonstrating that any particular employment practice

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impacts a protected class in a significant manner depends on statistical disparities and

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competing explanations for those disparities. “The statistical analysis must show a disparity

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that is ‘sufficiently substantial’ as to ‘raise such an inference of causation.’” Paige v.

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California, 291 F.3d 1141, 1145 (9th Cir. 2002) (citing Watson v. Fort Worth Bank & Trust,

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487 U.S. 977, 994 (1988)).

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At this procedural posture, the Court cannot find that the analyses performed by both of

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the parties’ experts resolves the claims as a matter of law. The timing, scope, and methodology

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of the respective parties’ experts create factual matters which remain the subject of reasonable

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and significant dispute. See Int’l Brotherhood, 431 U.S. at 33-40 (holding that the probative

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value of statistics must be examined in light of the totality of the circumstances). The Court

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cannot grant summary judgment on this record. See Chuang v. U.C. Davis, 225 F.3d 1115, 1124

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(9th Cir. 2000) (“As a general matter, the plaintiff in an employment discrimination action need

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produce very little evidence in order to overcome an employer’s motion for summary judgment.
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This is ‘because the ultimate question is one that can only be resolved through a searching

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inquiry – one that is most appropriately conducted by a fact finder, upon a full record.”); see also

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McGinest v. GTE Service Corp., 360 F.3d 1103, 1112 (9th Cir. 2004) (“In evaluating motions for

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summary judgment in the context of employment discrimination, we have emphasized the

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importance of zealously guarding an employee’s right to a full trial, since discrimination claims

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are frequently difficult to prove without a full airing of the evidence and an opportunity to

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evaluate the credibility of the witnesses.”).

with disputed facts regarding whether the H-40 examination was a valid and job-related selection

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process. Although Defendants may justify a challenged selection device as a business necessity

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For the Northern District of California

Further, and also precluding summary judgment, the Court finds that the record is replete

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United States District Court

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by showing that it is significantly job-related, this process of validation is primarily a question of

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fact. See, e.g., Ass’n of Mexican-American Educators v. California, 231 F.3d 572, 584-85 (9th

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Cir. 2000) (“The question whether a test has been validated is primarily a factual question, which

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depends on underlying factual determinations regarding the content and reliability of the

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validation studies that a defendant utilized.”). On the current record, the Court finds there are

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disputed issues of fact regarding the validation of the H-40 examination process.

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Upon careful review of the record and the experts’ reports, the Court finds that there

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remain questions of fact regarding the claims which preclude the Court from granting the

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remainder of Defendants’ motion. Accordingly, it is DENIED.

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CONCLUSION

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For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART

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Defendants’ motion for summary judgment. The Court shall conduct a further case management

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conference on April 1, 2016 at 11:00 a.m. The parties shall submit a joint case management

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statement by no later than March 25, 2016.

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IT IS SO ORDERED.
Dated: February 8, 2016
JEFFREY S. WHITE
UNITED STATES DISTRICT JUDGE

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