gavel on white backgroundBy William David and Laura J. Maechtlen

As we reported here to our loyal blog readers, in April 2014, the Ninth Circuit overturned an order denying class certification of age discrimination claims filed by a group of police officers in Stockwell v. City & Cnty. of San Francisco , 749 F.3d 1107 (9th Cir. 2014). On remand, the officers filed a third motion for class certification, and Judge Phyllis Hamilton of the U.S. District Court for the Northern District of California recently issued an order, denying (again) the officers bid for certification.


To recap, traditionally, the City filled its investigative positions by promoting police officers over the age of 40 who took and passed a “Q-35” exam. In 2005, the SFPD abandoned use of the Q-35 exam in favor of a new “Q-50” Sergeant’s exam. Following the change, the City began assigning investigative duties to newly promoted Sergeants who had taken the Q-50 exam, rather than to Assistant Inspectors promoted from the Q-35 list. Plaintiffs alleged that the practice of filling investigative positions from the Q-50 list had a substantial adverse impact on officers over the age of 40.

Throughout this case, plaintiffs asserted two causes of action for age discrimination — one under California’s Fair Employment and Housing Act (FEHA), the other under the federal Age Discrimination in Employment Act (ADEA). The FEHA claim was asserted by five named representative plaintiffs on behalf of a putative class, and the ADEA claim was asserted by the same five plaintiffs in their individual capacities, as well as by 25 additional individual plaintiffs. Plaintiffs sought class certification under Rule 23(b)(3) on their FEHA claim only.

On two occasions, the Court denied the plaintiffs’ bid for class certification. On the second occasion, the Court denied certification because it found that the plaintiffs did not satisfy the commonality requirement under Rule 23(a). As mentioned earlier, the Ninth Circuit overturned this decision, suggesting that the district court judge overreached by going too far in its analysis of the merits. Instead, the Ninth Circuit found that the commonality prong was met simply because “the officers are challenging a single policy they contend has adversely affected them”, and remanded the case to consider whether the putative class satisfied the requirements of Rule 23(b)(3) for class certification.

The Recent District Court Decision

On remand, the Court evaluated whether plaintiffs met the requirements under Rule 23(b)(3).  The Court also reviewed plaintiffs’ claim for class certification under Rule 23(a) with the Ninth’s Circuit’s guidance in mind. Plaintiffs also presented the Court with additional points for consideration.  In their third motion seeking class certification, the plaintiffs acknowledged that even if the City had never undertaken the allegedly discriminatory hiring practice (i.e., making promotions to investigative positions from the Q-50 list), only 55 individuals from the Q-35 list could have been promoted. In light of this information, plaintiffs made two alternative arguments.  First, they argued that the damages from the 55 “but-for” promotions should be aggregated and divided pro rata among the 133 putative members.  Second, plaintiffs argued that the Court could certify a class of only 55 individuals by using the 55 highest-ranked officers on the Q-35 list. The Court then reviewed plaintiffs’ third motion for class certification for the two proposed classes of 133 and 55 under Rules 23(a) and 23(b)(3).

The Court found that plaintiffs satisfied all certification requirements under Rule 23(a). However, plaintiffs also needed to satisfy the Rule 23(b)(3) requirements for class certification. Rule 23(b)(3) requires plaintiffs to establish that questions of law or fact common to the class predominate, and that a class action is superior to other methods available for adjudicating the controversy at issue. Upon review, the Court denied plaintiffs’ third motion for class certification because it found that the plaintiffs did not satisfy either the “predominance” or “superiority” requirements under Rule 23(b)(3) for either of the proposed classes.


To support their argument for certification of a liability-only class of 133, plaintiffs primarily relied on Houser v. Pritzker, 28 F.Supp. 3d 222 (S.D.N.Y. 2014), which certified a class for liability purposes, but not for damages purposes. Houser expressly found that a damages class cannot be certified under Rule 23(b)(3) and certified a liability-only class only because the plaintiffs moved for such a class under Rule 23(b)(2). In denying certification in Stockwell, the Court differentiated Houser by indicating that the plaintiffs sought certification under Rule 23(b)(3) and did not invoke Rule 23(b)(2) as a basis for their motion. Further, the Court reasoned that because plaintiffs admitted that only 55 of the 133 proposed class members would have been promoted in the “but-for” scenario, the majority of the class would be made up of individuals with no claim for relief.

Next, the Court analyzed the class of 55 under the predominance test which requires that plaintiffs show that the proposed class of 55 actually suffered a common injury and that damages from the injury are measurable on a class-wide basis through the use of a common methodology. Under the first prong of the test, the Court inquired whether the proposed class of 55 actually suffered a common injury– that is, whether each of them would have been promoted but-for the City’s allegedly discriminatory policy. The Court found that the entire proposed class of 55 did not suffer a common injury for two reasons. First, based on plaintiffs’ admission, not every one of the 55 highest-ranked Q-35 officers would have been promoted to the 55 investigative positions that were filled during the last class period. Instead, at best, the Q-35 evidence suggested only that most of the 55 highest-ranked individuals would have eventually received a promotion. Second, the Court held that plaintiffs provided no basis for determining the size of the “band” from which the 55 promotions would have been made.

Under the second prong of the test, the Court expressed concern that plaintiffs’ claims would require individualized proof at trial rather than proof common to the class because the class members may have differing amounts of damages. As the defendant pointed out, some class members have taken the Q-50 exam and some even received Q-50 promotions, which would limit their recovery in this case.


The Court held that plaintiffs did not satisfy the superiority analysis, either. Unlike the predominance prong, the Court did not separate its analysis of both proposed classes here because it found no material difference in the outcome of its analyses of the two classes. In making its ruling, the Court noted that the current complaint includes 5 representative plaintiffs and 25 additional individual named plaintiffs, all of whom assert an ADEA claim. It further noted that plaintiffs sought certification of a FEHA-only class, which even if granted, would leave 30 ADEA claims to be individually litigated, all based on the same facts that underlie the FEHA claim. The Court also found that the plaintiffs failed to provide any explanation as to how the individual claims would be litigated alongside the class claim.  Id. at 38.

Implications for Employers

Though the Court denied class certification on remand, the Ninth Circuit’s decision still stands. Employers can expect plaintiffs to continue to challenge the Wal-Mart decision by arguing that courts have abused their discretion by delving too far into the merits of Rule 23 requirements. The extent to which courts can consider the merits is likely to continue to take shape as district courts evaluate more cases involving Rule 23 class certifications following the Ninth Circuit’s ruling in Stockwell.