Hofmann et al v. The City & County of San Francisco et al

Filing 51

ORDER by Judge Claudia Wilken DENYING DEFENDANTS 75 MOTION TO DISMISS PLAINTIFFS FIRST AMENDED COMPLAINT. (ndr, COURT STAFF) (Filed on 8/2/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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HEINZ HOFMANN and THOMAS BUCKLEY,

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United States District Court
For the Northern District of California

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Plaintiffs,
v.
THE CITY AND COUNTY OF SAN
FRANCISCO; GEORGE GASCON, in his
individual capacity; and JEFFREY
GODOWN, in his individual
capacity,

No. C 11-4016 CW
ORDER DENYING
DEFENDANTS’ MOTION
TO DISMISS
PLAINTIFFS’ FIRST
AMENDED COMPLAINT
(Docket No. 39)

Defendants.
________________________________/

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In this disparate treatment action, Plaintiffs Heinz Hofmann
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and Thomas Buckley, both of whom are white, male police
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lieutenants, challenge the promotion practices employed by the San
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Francisco Police Department (SFPD), which they claim discriminate
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on the basis of race.

Plaintiffs have filed suit against the City

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and County of San Francisco and former SFPD Chiefs of Police
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George Gascón and Jeffery Godown.

In their First Amended

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Complaint (1AC) Plaintiffs allege five causes of action: (1) a
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claim under 42 U.S.C. § 1981 against all Defendants; (2) a claim
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under 42 U.S.C. § 1983 against all Defendants; (3) a claim under
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the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., against
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the City; (4) a claim under California's Fair Employment and
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Housing Act, California Government Code section 12940, against the
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City; and (5) a claim under the California Constitution, Article

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I, section 31, against the City.

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Plaintiffs' § 1983 and § 1981 claims against the City for failure

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adequately to allege violations under Monell v. Department of

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Social Services, 436 U.S. 658, 690-91 (1978), and for failure to

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allege their claims within the limitations period.

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Defendants argue that Plaintiffs did not adequately allege their

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claim against the City under Title VII and that their claims

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against the City under Title VII, the FEHA and the California

United States District Court
For the Northern District of California

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In addition,

constitution are untimely.
Having considered all of the parties' submissions and oral
argument, the Court denies Defendants’ motion to dismiss the 1AC.

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Defendants move to dismiss

BACKGROUND
Plaintiffs’ 1AC largely mirrors the allegations in the

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original complaint.

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the Court’s April 30, 2012 order addressing Defendants’ motion to

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dismiss the original complaint.

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allegations as pertinent to Defendants’ second motion to dismiss.

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The allegations were described in detail in

This order addresses the new

LEGAL STANDARD
A complaint must contain a “short and plain statement of the

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claim showing that the pleader is entitled to relief.”

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Civ. P. 8(a).

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state a claim, dismissal is appropriate only when the complaint

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does not give the defendant fair notice of a legally cognizable

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claim and the grounds on which it rests.

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Twombly, 550 U.S. 544, 555 (2007).

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complaint is sufficient to state a claim, the court will take all

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material allegations as true and construe them in the light most

Fed. R.

On a motion under Rule 12(b)(6) for failure to

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Bell Atl. Corp. v.

In considering whether the

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favorable to the plaintiff.

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896, 898 (9th Cir. 1986).

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to legal conclusions; “threadbare recitals of the elements of a

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cause of action, supported by mere conclusory statements,” are not

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taken as true.

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(citing Twombly, 550 U.S. at 555).

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United States District Court
For the Northern District of California

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However, this principle is inapplicable

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009)

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NL Indus., Inc. v. Kaplan, 792 F.2d

ANALYSIS
I. Section 1983 Claim
A. Sufficiency of Allegations
Under Monell, 436 U.S. at 690-91, Plaintiffs may state a

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§ 1983 claim against the City where "action pursuant to official

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municipal policy of some nature cause[s] a constitutional tort."

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The Ninth Circuit has held that municipal liability under Monell

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may be established in one of three ways: (1) "the plaintiff may

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prove that a city employee committed the alleged constitutional

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violation pursuant to a formal governmental policy or a

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longstanding practice or custom which constitutes the standard

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operating procedure of the local governmental entity;" (2) "the

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plaintiff may establish that the individual who committed the

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constitutional tort was an official with final policy-making

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authority and that the challenged action itself thus constituted

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an act of official governmental policy;" or (3) "the plaintiff may

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prove that an official with final policy-making authority ratified

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a subordinate's unconstitutional decision or action and the basis

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for it."

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1992).

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Gillette v. Delmore, 979 F.2d 1342, 1346-47 (9th Cir.

Plaintiffs previously alleged that Chiefs Gascón and Godown
had final policy-making authority for the City with respect to
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promotions in the SFPD under the City Charter, Administrative

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Code, and Civil Service Commission regulations and policies.

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However, the Court determined that Plaintiffs had not alleged that

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the Chiefs had the final policy-making authority necessary to

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pursue their § 1983 claim because they conceded that the Civil

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Service Commission establishes the rules to certify candidates for

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promotion and the Chiefs’ individual promotion decisions could be

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appealed to the Commission.

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the specific promotions did not establish that they had final

That the Chiefs had authority over

United States District Court
For the Northern District of California

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promotion policy-making power.

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the City Charter, in sections 2A.30 and A8.329, “expressly

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delegates the policymaking function of appointing individuals for

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promotion from the certification lists established by the City’s

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Civil Service Commission.”

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sections 2A.30 and A8.329 does not persuade the Court to

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reconsider its earlier determination that the Chiefs are not

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promotion policy-makers.

In the 1AC, Plaintiffs allege that

1AC at ¶ 38.

Plaintiffs’ citation to

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The Court previously held that the City’s continued use of a

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banding method is an official policy, but that Plaintiffs had not

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alleged that banding under the City’s current plan is

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unconstitutional or amounts to discrimination against white

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candidates.

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alleged that the Chiefs had acted pursuant to an unconstitutional

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policy.

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Accordingly, the Court found that Plaintiffs had not

Plaintiffs now allege that the City has a long-standing

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practice and custom in which it “resorts to banding when

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sufficient numbers of minorities fail to do well enough on the

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promotional examinations to be promoted under an alternate
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certification rule (e.g. Rank Order, Rule of 3, Rule of 5, etc.).”

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1AC at ¶ 28.

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City’s use of the banding procedure in SFPD promotions is to

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artificially increase the number of minorities promotable on

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eligibility lists than otherwise would be under some certification

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rule.”

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consent decree arising from a 1973 class action, Officers for

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Justice v. Civil Service Commission of the City and County of San

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Francisco, C 73-0657, was terminated, the City has used banding to

Plaintiffs claim that the “purposes behind the

1AC at ¶ 28.

Plaintiffs allege that, since 1998, when the

United States District Court
For the Northern District of California

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select candidates for promotion from the 2000 and 2005

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Lieutenant’s Lists, and the 2001, 2004 and 2007 Captain’s List.

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According to Plaintiffs’ 1AC, the City abandoned banding as a

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method to select candidates from the 2011 Captain’s List because

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all black applicants are reachable under the Rule of 10 used for

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the list.

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1AC at ¶ 24.

Defendants argue that Plaintiffs cannot allege a Monell claim

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based on the City’s use of banding because the method is legal as

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a matter of law.

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the Ninth Circuit in Officers for Justice v. Civil Service

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Commission of the City and County of San Francisco, 979 F.2d 721,

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724 (9th Cir. 1992), held that the banding described in that case

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was constitutional.

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“statistically derived confidence range that is applied to the

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examination results.”

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Monell claim does not allege that the banding method itself

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discriminates on the basis of race.

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the City has a custom and practice of discriminating against white

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applicants by opting to use the banding method, rather than a

As the Court described in its previous order,

The Ninth Circuit described a band as a

Id. at 722.

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However, Plaintiffs’ amended

Rather, Plaintiffs claim that

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different selection rule, only when few African Americans and

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Asian Americans are eligible for promotion under those other

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selection rules.

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preclude Plaintiffs’ claim.

Thus, the Ninth Circuit’s ruling does not

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Defendants further argue that Plaintiffs’ claim fails because

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they remained eligible for promotion when the City applied banding

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to the 2007 Captain’s List.

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point band, but they were not selected based on “secondary

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criteria,” such as education, training, assignments, disciplinary

Plaintiffs were within the forty-five

United States District Court
For the Northern District of California

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history and commendations or awards.

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contend that Plaintiffs were not injured by the City’s alleged

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custom of selectively using banding.

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Accordingly, Defendants

Defendants’ argument is not persuasive.

Plaintiffs’ amended

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allegations assert a municipal custom and practice in which the

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City resorted to the banding method to boost the number of African

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American and Asian American candidates eligible for promotion and

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to facilitate discrimination against white candidates; and the

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Chiefs, in turn, engaged in a custom and practice of selecting

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minority candidates for promotion over objectively more qualified

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white applicants.

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for promotion because they were within the forty-five point band,

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they were allegedly injured when the Chiefs declined to promote

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them.

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1AC at ¶ 30.

Although Plaintiffs were eligible

Finally, Defendants challenge the sufficiency of Plaintiffs’

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factual allegations that the Chiefs made promotions pursuant to

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the City’s longstanding custom and practice of discrimination.

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Defendants contend that Plaintiffs have repeated the spare

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allegations in their original complaint that the Chiefs made
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promotions “under the City’s policy of banding,” and that these

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allegations do not include sufficient facts to infer a plausible

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claim as required by Twombly, 550 U.S. at 555.

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Defendants neglect several new allegations.

In paragraphs

twenty-four and thirty of the 1AC, as noted above, Plaintiffs

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allege that the City used banding to select candidates for

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promotion from the 2000 and 2005 Lieutenant’s Lists, and the 2001,

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2004 and 2007 Captain’s Lists, but not the 2011 Captain’s List.

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In addition, Plaintiffs add, “When any blacks were within the band

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United States District Court
For the Northern District of California

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on any of these SFDP promotional lists, they were virtually always

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hired (with 2 notable exceptions that constituted extraordinary

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circumstances).”

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City promoted all five African American candidates from the band

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applied to the 2000 Lieutenant’s list.

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Plaintiffs contend that African Americans were “virtually always”

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hired over white candidates from within the band and that this

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practice occurred for several years, during the tenure of more

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than one Chief, the allegations could support an inference that

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the Chiefs were making promotion decisions pursuant to a

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discriminatory policy, custom and practice attributable to the

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City.

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1AC at ¶ 30.

Plaintiffs also allege that the

1AC at ¶ 18.

Because

In sum, Plaintiffs have alleged a Monell claim because they

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claim that the City selectively applied banding to boost the

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number of African American and Asian American candidates eligible

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for promotion, and SFPD Chiefs, pursuant to the City’s policy of

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discrimination, engaged in a longstanding custom and practice of

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selecting virtually all of such candidates for promotion over

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objectively more qualified white candidates within the band.
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To

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prevail on their Monell claim alleging disparate treatment,

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Plaintiffs must prove that both the City and the individual Chiefs

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acted with discriminatory intent and that the Chiefs did so

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because of the City’s intentionally discriminatory policy, not

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merely their own desire to discriminate against white candidates.

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Plaintiffs must also prove that, but for such discrimination, each

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Plaintiff would have been selected as the most qualified applicant

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for a particular promotion.

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B. Timeliness of Claim

United States District Court
For the Northern District of California

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The parties do not dispute that a two-year limitations period

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applies to Plaintiffs’ § 1983 claim.

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centers on the date that the claim accrued.

Instead, their dispute

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In their first motion to dismiss Defendants argued that

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Plaintiffs’ claim accrued in January 2008, when the City announced

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that the banding method would be used to select candidates from

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the 2007 list for promotion.

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accrued on the date the 2007 list expired, January 14, 2011, when

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the possibility that they would be promoted from the list ended.

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Relying on Lukovsky v. City and County of San Francisco, 535 F.3d

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1044, 1049-51 (9th Cir. 2008), the Court held that Plaintiffs’

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§ 1983 claim accrued when they were notified that they were not

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selected for promotion to the position of Captain or when they

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should have known that they were not selected.

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plaintiffs argued that their claims did not accrue until they knew

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that they were not hired and they learned of the defendants’

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alleged discriminatory intent.

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had no reason to know of the defendants’ discriminatory conduct

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until they were informed of it years after they were denied the

Plaintiffs argued that their claim

In Lukovsky, the

The plaintiffs claimed that they

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positions.

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when applicants are informed or should know that they have not

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been hired.

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the “actual injury,” not when they suspect a “legal wrong,” such

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as that the employer’s action was based on discriminatory intent.

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Id.

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dates when they were passed over for promotion.

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that, given that they filed their complaint on August 16, 2011,

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provided that they learned they were denied one or more promotions

United States District Court
For the Northern District of California

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The Ninth Circuit held that claims under § 1983 accrue

That is, claims accrue when the applicants learn of

In the original complaint, Plaintiffs had not alleged the
The Court held

on or after August 16, 2009, their claim under § 1983 is timely.
There is no reason to change this decision because no new

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allegations indicate that Plaintiffs’ claim is untimely.

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Plaintiffs’ claims here did not accrue in January 2008 when the

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City announced its decision to use banding, but only later when it

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acted on its decision by denying promotions to Plaintiffs.

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the City announced the decision to use banding, Plaintiffs only

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had notice of the possibility of an adverse employment action

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against them, but the adverse action did not occur until they were

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actually denied a promotion.

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applications for promotion did not automatically flow from the

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announcement that the City intended to use banding.

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When

The denial of Plaintiffs’

Defendants argue that the Court’s ruling improperly conflated

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two adverse employment decisions--the City’s decision to use

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banding and the Chiefs’ promotion decisions--and that determining

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the accrual date of Plaintiffs’ banding claim requires that the

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Court distinguish between the two decisions.

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support Defendants’ position, nor does Delaware State College v.

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Ricks, 449 U.S. 250, 258-59 (1980), a case upon which Lukovsky
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Lukovsky does not

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relies.

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§ 1981 and Title VII claims accrued when the plaintiff was denied

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tenure, not on the date, one year later, when the plaintiff’s

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employment actually ended.

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not immediately terminating the employment of a professor who was

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denied tenure, but instead allowing one additional year of

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employment under a “terminal” contract, the Court rejected the

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plaintiff’s argument that his claim did not accrue until his

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employment actually ended.

In Ricks, the Supreme Court held that the plaintiff’s

Although the college had a policy of

The Court reasoned that the plaintiff

United States District Court
For the Northern District of California

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had only alleged discrimination in the denial of tenure, after

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which the termination of his employment was “inevitable.”

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257-58.

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applications for promotion was not inevitable once the City chose

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to apply banding.

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adverse employment action occurred when the City decided to use

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the banding method.

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Id. at

Unlike the situation in Ricks, the denial of Plaintiffs’

Thus, Ricks does not support finding that the

Plaintiffs argue that the Supreme Court’s more recent

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decision in Lewis v. City of Chicago, 130 S. Ct. 2191 (2010),

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supports their position that actionable discrimination occurred

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each time the City selected a candidate for promotion from the

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list of eligible candidates and, therefore, their § 1983 disparate

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treatment claim is timely.

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undermines Plaintiffs’ position.

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claims under Title VII,1 which do not require a showing of

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discriminatory intent.

Defendants counter that Lewis
Lewis concerned disparate impact

Id. at 2199.

There, the Court rejected

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The Ninth Circuit has stated that cases arising under Title
VII are instructive with regard to the accrual of § 1983 claims.
Lukovsky, 535 F.3d at 1049 n.3.
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the City of Chicago’s argument that the only actionable

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discrimination occurred when it used examination results to adopt

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a cutoff score and create its hiring eligibility list.

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that an “employment practice,” for purposes of a Title VII

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disparate impact claim, encompassed the City’s decision to adopt a

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cutoff score and create a list of candidates eligible for hire, as

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well as the City’s later decision to hire as firefighters certain

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candidates on the eligibility list.

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finding that Plaintiffs alleged discriminatory intent within the

Lewis held

Lewis does not compel a

United States District Court
For the Northern District of California

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limitations period, but does not indicate that they will be unable

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to establish a timely disparate treatment claim under § 1983.

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Lewis is inapposite as to both Plaintiffs’ and Defendants’

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arguments on this point.

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Defendants’ motion to dismiss Plaintiffs’ § 1983 claim as

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untimely is denied without prejudice to revisiting the issue on

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summary judgment.2

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claim, Plaintiffs must prove that the City adopted the banding

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policy and the individual Chiefs made their promotion decisions--

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all with discriminatory intent in accordance with City policy,

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custom and practice.

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Plaintiffs will be required to prove that a failure to promote

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each of them, motivated by discriminatory intent, occurred within

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the limitations period.

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As noted earlier, to succeed on their Monell

To ensure that their claim is timely,

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At the hearing, the Court asked the parties when the
disputed promotion decisions were made but they declined to
clarify this point. Thus far, they have not submitted a joint or
separate letters indicating the promotion decision dates, as
required by this Court’s July 5, 2012 order. Nor have they
complied with the Court’s order that they explain how the Rule of
5 was applied in the circumstances of tied scores.
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II. Section 1981 Claim
Defendants argue that Plaintiffs have failed to allege facts

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sufficient to state a claim under § 1981.

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dismissed Plaintiffs § 1981 claim for failure to allege a

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cognizable municipal custom or policy.

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Circuit precedent, specifically Federation of African American

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Contractors v. City of Oakland, 96 F.3d 1204, 1215 (9th Cir.

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1996), required a plaintiff pursuing a § 1981 claim against a

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municipality to allege that his or her injury was caused by an

United States District Court
For the Northern District of California

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The Court previously

The Court found that Ninth

official "policy or custom" under Monell.
As explained above, Plaintiffs have sufficiently alleged a

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long-standing policy, custom and practice of selectively adopting

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banding to increase the number of African American and Asian

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American candidates eligible for promotion and then uniformly

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promoting such individuals over objectively better qualified white

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candidates.

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claim is denied.

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III. Title VII Claim

Defendants’ motion to dismiss Plaintiffs’ § 1981

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A. Sufficiency of Allegations

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Defendants contend that Plaintiffs’ Title VII claim is

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precluded by the Ninth Circuit’s approval of banding as a neutral

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selection method in the Officers for Justice decision discussed

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earlier.

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U.S. 604 (1993).

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stated, “Whatever the employer’s decisionmaking process, a

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disparate treatment claim cannot succeed unless the employee’s

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protected trait actually played a role in that process and had a

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determinative influence on the outcome.”

Defendants also rely on Hazen Paper Co. v. Biggins, 507
There, addressing ADEA claims, the Supreme Court

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Id.

Plaintiffs now

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claim that since 1998 the City has selectively resorted to the

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banding method to boost the number of African American and Asian

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American candidates eligible for promotion, and has chosen to

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promote African American and Asian American candidates who were

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less qualified than their white counterparts and this constitutes

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the City’s policy, custom and practice of intentionally

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discriminating against white applicants.

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Defendants’ motion to dismiss Plaintiffs’ Title VII claim is

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denied.

For this reason,

United States District Court
For the Northern District of California

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B. Failure to Exhaust Timely

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Defendants also contend that Plaintiffs’ Title VII claim is

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time-barred because Plaintiffs filed untimely administrative

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complaints and the administrative complaints do not allege the

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type of harm Plaintiffs purport to claim in the 1AC.

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Specifically, Defendants contend that the administrative

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complaints allege only discriminatory individual promotion

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decisions, not the unlawful use of banding.

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With respect to administrative exhaustion, the Ninth Circuit

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has stated, “Since laypersons initiate the administrative process

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for resolving employment discrimination complaints, the procedural

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requirements for Title VII actions are neither interpreted too

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technically nor applied too mechanically.”

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59 F.3d 994, 999 (9th Cir. 1995) (internal quotation marks

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omitted).

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charge may not be considered by a federal court unless the new

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claims are like or reasonably related to the allegations contained

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in the EEOC charge.”

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Schs., 883 F.2d 1472, 1476 (9th Cir. 1989) (internal quotation

Greenlaw v. Garrett,

“Incidents of discrimination not included in an EEOC

Green v. Los Angeles Cnty. Superintendent of

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marks omitted).

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reasonably related to allegations contained in the previous

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charge, the court inquires into “whether the original EEOC

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investigation would have encompassed the additional charges.”

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In determining whether a new claim is like or

Id.

Hofmann stated in his EEOC charge that in or about 2007 he

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applied for a promotion to the position of Captain and he was

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ranked twenty on the list.

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over for promotion, while the City promoted applicants who were

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ranked lower than he.

He further claimed that he was passed

Likewise, Buckley alleged in his

United States District Court
For the Northern District of California

10

administrative charge that in 2007 he applied for promotion to the

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position of Captain, but officers ranked lower than he were

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selected.

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Although Plaintiffs did not specifically mention the City’s

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use of banding, their administrative claims were sufficient to

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encompass the rules and decision-making process that the City used

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to select candidates for promotion.

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Plaintiffs’ Title VII claim for failure to exhaust their

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administrative remedies is not well-taken.

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Defendants’ motion to dismiss

Defendants also argue that Plaintiffs’ administrative charges

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were untimely given that the City announced its banding rule in

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December 2007, but Plaintiffs filed their charges of

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discrimination with the EEOC in 2011.

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300 day period for them to file an administrative complaint began

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to run from the day they were informed that they would not be

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hired, not from when they learned the City would employ banding as

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a certification rule.

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1AC does not allege the dates when they were passed over for

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specific promotions.

Plaintiffs respond that the

Like the original complaint, Plaintiffs’

Provided that Plaintiffs were notified that
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they were denied a promotion within the 300 days before the Equal

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Employment Commission received their administrative charges, their

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charges were timely.

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request to dismiss Plaintiffs’ Title VII claim as untimely lacks

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merit.

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IV. FEHA Claim

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At this stage in the litigation, Defendants’

As with the Title VII claim, Defendants argue that
Plaintiffs’ FEHA allegations are deficient because the banding

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method has been held constitutional by the Ninth Circuit and

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United States District Court
For the Northern District of California

8

Plaintiffs have failed to allege that they were harmed by the

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City’s use of it.

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claim is not foreclosed by the Ninth Circuit’s decision in

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Officers for Justice, 979 F.2d at 724, 728.

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incorrect that the 1AC fails to allege that the City discriminated

15

against them with respect to subsequent promotion decisions.

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discussed earlier, Plaintiffs’ new allegations are sufficient to

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allow an inference that the Chiefs made discriminatory promotion

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decisions pursuant to a City policy.

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motion to dismiss Plaintiffs’ FEHA claim based on insufficient

20

allegations is denied.

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For the reasons stated above, Plaintiffs’ FEHA

Defendants are also

As

Accordingly, Defendants’

Like Title VII, under the FEHA, an “employee must exhaust the

22

administrative remedy provided by the statute by filing a

23

complaint with the Department of Fair Employment and Housing

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. . . to be entitled to file a civil action in court based on

25

violations of the FEHA.”

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4th 479, 492 (1996) (citing Cal. Gov. Code §§ 12960 and 12965(b)).

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The FEHA states that plaintiffs may file a complaint with the DFEH

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within one year from the date upon which the alleged unlawful

Romano v. Rockwell Int’l, Inc., 14 Cal.

15

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practice occurred.

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claim need not be dismissed as untimely, because the allegations

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do not indicate that they filed their administrative complaints

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more than one year after they received notice of a denial of their

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application for promotion.

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V. California Constitutional Claim

Cal. Govt. Code § 12960(d).

Plaintiffs’ FEHA

Defendants argue that Plaintiffs’ claim under Article I,

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section 31 of the California Constitution should be dismissed

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because the banding method is lawful and Plaintiffs have failed to

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United States District Court
For the Northern District of California

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allege that discrimination by the City led to the denial of their

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promotion.

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banding on select occasions to boost the number of Asian American

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and African American applicants eligible for promotion, and then

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took advantage of banding to select unqualified candidates.

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allegations do not challenge the constitutionality of the banding

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method alone.

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an inference that the promotion decisions were the result of the

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City’s policy, custom and practice of discrimination.

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motion to dismiss Plaintiffs’ state constitutional claim is

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denied.

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22

As explained above, the 1AC alleges that the City used

The

Plaintiffs’ allegations are sufficient to support

Defendants’

CONCLUSION
Defendants’ motion to dismiss Plaintiffs’ § 1983, Title VII

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and FEHA claims as untimely is denied.

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dismiss Plaintiffs’ § 1983, § 1981, Title VII, FEHA and state

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constitutional claims based on insufficient allegations is also

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denied.

Defendants’ motion to

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The parties shall appear for a case management conference on

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June 29, 2013 at 2:00 p.m., whether or not any dispositive motion
16

1

is heard on that date, pursuant to this Court’s July 5, 2012 case

2

management order.

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IT IS SO ORDERED.

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Dated:

8/2/2012

CLAUDIA WILKEN
United States District Judge

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United States District Court
For the Northern District of California

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