The most famous, if fictional, San Francisco police Inspector was, of course, Inspector Harry Callahan of the Dirty Harry succession of Clint Eastwood films.  The first Dirty Harry movie came out in 1971when its star, known then chiefly by his roles in westerns, was 41 years old.  There were a total of five films with Inspector Callahan, the last being Dead Pool when Eastwood was 58.  Dirty Harry spent his entire film career in the protected age group.

Meanwhile, the real-life San Francisco police department was, in addition to fighting bad guys, working under a consent decree involving alleged race discrimination in its procedures for promoting police officers to the first rung of the Inspector position.  [That decree was entered between the release of The Enforcer (1976) and Sudden Impact (1983)].   The decree terminated in 1998, and was replaced by a complex formula for the appointment of Assistant Inspectors including a “Q-35” Inspector Examination and, following an initial 110 appointments a sliding scale taking other criteria into account.

In 2006, the department scrapped that system and the Q-35 test and opted instead to use a new “Q-50” sergeant’s examination and to assign newly promoted sergeants to duties previously assigned to Assistant Inspectors.  Did the Chief feel lucky that day?

If he did, he was wrong.  In 2008, a group of officers who would have been promoted under the 1998-2006 system, but were passed over under the new system filed suit under both the ADEA and the California Fair Employment and Housing Act.  They contended that the switch constituted a “pattern or practice” of age discrimination and that the new procedure had a disparate impact on older officers.

Testing cases remain good fodder for class action cases – although intended to eliminate claims of bias or favoritism, they are frequent targets of claims of disparate impact and provide, at least arguably, good evidence of commonality in that all of the class members are affected by the same factor (the test itself).

Let’s turn, then, to what happened in Stockwell v. City and County of San Francisco, Case No. 12-15070 (9th Cir. Apr. 24, 2014).

First, the obvious.  The original consent decree was issued over 30 years ago.  The challenged change in test procedures was announced in 2005 and implemented in 2006, 9 and 8 years ago respectively.  The Stockwell case itself was filed in 2008, or 6 years ago.  Presumably, in the nearly decade since the challenged change, numerous would be inspectors have moved on.  There is no end to the case in sight.  Such delays suggest, at a minimum, a serious underlying problem in the manner in which these types of disputes are being handled.

Second, as to the case itself, the district court denied certification due to a lack of commonality under Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), and the plaintiffs requested a Rule 23(f) discretionary appeal, which was granted.  The Ninth Circuit ultimately found that the district court abused its discretion in denying certification under Rule 23(a).  While, on one level, a challenge to a test does suggest a degree of commonality, several aspects of the Ninth Circuit’s decision give pause.

The court noted tension between the ability to review merits considerations on Rule 23 issues and the need to avoid trial on the merits.  Having said that, the Court largely ignored merits issues suggesting the lack of a viable class, including flaws in the plaintiffs’ expert’s statistical analysis and a host of individual issues, including the fact that officers in the class were free to take the new test, the lack of any appointments during a 2-year period, and the fact that even under the prior system there were fewer slots than putative class members.

While the Court agreed, as it had to, that “[a]ny and all of these considerations may prove pertinent to the merits of the case” and “possibly” to Rule 23(b)(3), these are serious issues.  Further, nowhere does the court cite the Dukes Court’s observation that Daubert considerations likely apply to expert testimony at the certification stage. We blogged this issue on August 3, 2011.  Likewise, while the Court focused myopically on the Q-50 test, even it was unable to articulate how a finding that the test had a disparate impact would resolve the case “in one stroke” – such a finding would only open the door to countless other issues about whether or how the test affected the hiring of a particular individual, and which individuals in particular.  Further, given such a long passage of time, the calculation of damages for each individual, taking into account when they claim they should have been hired, whether they were actually the best qualified for the particular hire at a particular time, etc. would itself be a Herculean task.  That task, or more likely a further Rule 23(b)(3) predominance and superiority analysis, will now have to be undertaken by the district court.

While we are discussing never-ending litigation, the district court in Wang v. Chinese Daily News, Inc., Case No. 2:04-cv-01498-CBM(AJWx) (C.D. Cal.), which is now 10 years old and has a tortured procedural history was certified AGAIN on April 15, 2014.  We’ve blogged that case in the past at (reversal and remand by the Supreme Court) and (remand by the Ninth Circuit).  The order certifying the case again was entry No. 946 on the district court’s docket.

The Stockwell case reflects that even as it is getting harder to maintain employment class action litigation, some courts continue to search for ways to find the requisite commonality when they can point to a significant common issue despite other obstacles.

The Bottom Line:  The Ninth Circuit is inclined to find commonality, if not necessarily predominance, in disparate impact cases arising out of testing.