Johnson v. City and County of San Francisco et al

Filing 207

ORDER by Judge Jeffrey S. White granting 198 Motion Re Threshold Legal Issues. (jjoS, COURT STAFF) (Filed on 4/13/2017)

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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 RE THRESHOLD LEGAL
ISSUES

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 filed by Mark Johnson, Franco S. Calzolai, and

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Michael R. Bryant (“Plaintiffs”) to resolve threshold legal issues. On January 23, 2017, this

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Court ordered that the parties brief threshold legal issues they deemed necessary for resolution

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prior to continued mediation of this matter. Pursuant to the Court’s order, the parties identified

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specific threshold issues, the determination of which may enable further productive settlement

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discussions.

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Plaintiffs filed suit claiming their rights under the United States Constitution and state

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law were violated when they were denied promotions to Battalion Chief in the San Francisco

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Fire Department due to their performance on a Civil Service examination for the position (“the

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H-40 examination”). Plaintiffs claim that the administration of the H-40 examination resulted

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in disparate impact against African Americans.
A claim for disparate impact discrimination challenges “employment practices that are

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

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

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of disparate impact employment discrimination, a plaintiff must: (a) identify the specific

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challenged employment practice; (b) show disparate impact on a protected group of which the
plaintiffs are a member; and (c) prove causation with respect to each challenged practice.

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For the Northern District of California

United States District Court

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Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 656-58 (1989). To establish the second

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element, a plaintiff must show by statistical evidence that the challenged employment practice

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selected members of the protected class “in a proportion smaller than their percentage in the

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pool of applicants.” Robinson v. Adams, 847 F.2d 1315, 1318 (9th Cir. 1988). The issue of

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demonstrating that any particular employment practice impacts a protected class in a significant

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manner depends on statistical disparities and competing explanations for those disparities.

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“Statistical evidence may be probative where it reveals a disparity so great that it cannot be

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accounted for by chance, . . . to state it in other words, the statistical disparities must be

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sufficiently substantial that they raise . . . an inference of causation.” Waisome v. Port

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Authority of New York and New Jersey, 948 F.2d 1370, 1375 (2d Cir. 1991) (citations omitted).

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To make out a case that a hiring or promotion practice was discriminatory, a plaintiff may

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submit evidence of “discriminatory motive or by offering statistical or other evidence from

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which it may be fairly inferred as more likely than not that the practice had a discriminatory or

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disparate impact.” Guinyard v. City of New York, 800 F. Supp. 1083, 1088 (E.D. N.Y. 1992)

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(citing Waisome, 948 F. 2d at 1374-75).

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Plaintiffs contend that the Defendant City and County of San Francisco (“City”) denied

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them promotions to H-40 Battalion Chief and that, as a matter of law, the appropriate statistical

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snapshot for assessing the alleged disparate impact should include only promotions made on or
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before the filing of this lawsuit. Plaintiffs further contend that statistical analysis should

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exclude, as a matter of law, all H-40 Battalion Chief candidates who had retired prior to the

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filing of this action. The City disputes both contentions. The Court finds that the threshold

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legal issues are, practically, the same – that is, should the statistical analysis adjudicating the

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calculations of disparate impact be determined at the time of the filing of the lawsuit, or instead

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at some other, later date. The Court finds that the determination of disparate impact should be

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measured at the time of eligibility for promotion and commencing at the initiation of the

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lawsuit. Subsequent appointments or retirement prior to commencement of the litigation do not

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factor in the statistical analysis. Accordingly, Plaintiffs’ motion is GRANTED.
“In considering claims for disparate impact under [Title VII, the United States Supreme]

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For the Northern District of California

United States District Court

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Court has consistently focused on employment and promotion requirements that create a

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discriminatory bar to opportunities. This Court has never read [Title VII] as requiring the focus

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to be placed instead on the overall number of minority or female applicants actually hired or

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promoted.” Connecticut v. Teal, 457 U.S. 440, 450 (1982) (emphasis in original). The

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Supreme Court specifically held that they were not suggesting that “by promoting a sufficient

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number of the black employees who passed the examination, the employer could avoid [its]

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burden.” Id. at 450. “The suggestion that disparate impact should be measured only at the

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bottom line ignores the fact that Title VII guarantees these individual respondents the

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opportunity to compete equally with white workers on the basis of job-related criteria.” Id. at

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451 (emphasis in original). The vantage for assessing the opportunity for promotion can be

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measured by Plaintiffs at the time of filing of their complaint. Further, the possibility that any

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particular individual may later have been promoted overlooks the potential damage incurred by

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the delay in employment advancement. See Guinyard, 800 F. Supp. at 1088-89

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(“Discrimination may be present at each step in the promotion process. Moreover, a delay in

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promotion may itself result in injury. . . . Even for those who were [eventually] promoted, an

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illegal delay in promotion may still result in lost wages, benefits, and other types of injuries.”)

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Similarly, in this Circuit, where postal workers directed their challenge to the
intermediate screening stage as the basis of their disparate impact claims, the “nonadverse
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results of the ultimate promotion decisions cannot refute a prima facie case of disparate impact

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at the dispositive interview selection stage.” Stout v. Potter, 276 F.3d 1118, 1122 (9th Cir.

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2002) (citing Teal, 457 U.S. at 452). “Whether disparate impact was shown must address the

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results of the interview screening decision, not simply the bottom line promotion decisions.” Id.

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Similarly, here, Plaintiffs challenge the administration of the H-40 examination and claim that

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the test resulted in disparate impact for opportunities to promotion against African Americans.

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Plaintiffs have the burden to demonstrate, using statistics amassed at the time of filing suit, that

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the challenged employment practice selected members of the protected class “in a proportion

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smaller than their percentage in the pool of applicants.” See Robinson, 847 F.2d at 1318.
For the same reasons, the pool from which the statistics are measured must accurately

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For the Northern District of California

United States District Court

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represent the facts at the time Plaintiffs filed suit. See Gonzales v. Police Dep’t of City of San

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Jose, 901 F.2d 758, 761 (9th Cir. 1990) (holding that in a long line of Title VII cases, “other

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circuits have recognized that the fact that improvements or advancements undertaken after

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lawsuits have been initiated drastically reduced the probative value of such evidence.”)

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Accordingly, the statistical sampling may not account for candidates who were promoted after

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the lawsuit was filed nor those who were no longer in the position to receive a promotion by

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virtue of having already retired. The statistical analysis must accurately reflect the factual

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status at the time the lawsuit was filed.

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For the foregoing reasons, the Court GRANTS Plaintiffs’ motion on the threshold legal

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issues. The Court HEREBY REFERS this matter back to Magistrate Judge Westmore to conduct

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a further settlement conference within 120 days from the date of this Order.

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IT IS SO ORDERED.

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Dated:

April 13, 2017
JEFFREY S. WHITE
UNITED STATES DISTRICT JUDGE

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