Juanita Stockwell v. City and County of San Francis, 749 F.3d 1107

Background

SF PD promoted officers over 40 based on the Q-35 list; they allege that shifting to the Q-50 list for investigative assignments produced a disparate impact on older officers under FEHA and the ADEA.
District court terminated the consent decree but retained jurisdiction over issues related to the Q-35 promotional examination and issued procedures listing a banded promotion method; 1998–2006 saw 229 officers promoted from the Q-35 list.
In 2005 the City changed practice to use the Q-50 list for investigative assignments instead of the Q-35 list; in 2006–2009 sergeants were promoted from the Q-50 list with investigative duties.
Officers filed suit in 2008 and sought class certification for FEHA disparate impact; district court denied certification for lack of commonality, later denying renewed FEHA class certification.
This court granted 23(f) review to appeal the denial; we held the district court erred by considering merits unrelated to commonality and reversed on that ground, remanding for predominance/superiority analysis.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Does commonality exist under Rule 23(a)(2)?	Officers assert a single common question: whether using Q-50 instead of Q-35 created disparate impact.	City contends individualized issues defeat commonality due to possible defenses and merit concerns.	Yes, common question exists; district court erred by discarding class certification.
May merits questions be considered at the Rule 23(a) stage?	Commonality analysis should not rely on merits; merits are not required to defeat certification.	Merits issues may contaminate the certification analysis and undermine class viability.	Merits questions may be considered only to the extent relevant to Rule 23 prerequisites; error to weigh merits to deny certification.
Should the court determine predominance under Rule 23(b)(3) at this stage?	Predominance can be shown by a single common question that will resolve the core of all class claims.	Predominance depends on individualized issues that may predominate outside common question.	Remand to adjudicate predominance and superiority; commonality remains the sole issue before initial ruling.
Is the identified common question central to the validity of the class claims?	The identified practice (Q-50 vs Q-35) uniformly affected all class members aged 40+.	Other factors could undermine the linkage between practice and disparate impact.	Yes; the identified practice is a single, uniform issue capable of classwide resolution.

Key Cases Cited

Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011) (requires a single significant question of law or fact for Rule 23(a)(2))
Amgen Inc. v. Conn. Retirement Plans & Trust Funds, 133 S. Ct. 1184 (2013) (commonality may rely on questions capable of classwide resolution; merits may be addressed separately)
Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997) (preliminary class certification standards and balancing of Rule 23(b)(3) considerations)
Abdullah v. U.S. Sec. Assocs., Inc., 731 F.3d 952 (9th Cir. 2013) (Rule 23(a)(2) requires a single significant question of law or fact for class commonality)
Katz v. Regents of Univ. of Cal., 229 F.3d 831 (9th Cir. 2000) (disparate impact requires showing of a causal link between a facially neutral practice and adverse impact)
Smith v. City of Jackson, 544 U.S. 228 (2005) (statistical disparities must be tied to a specific employment practice)
Meacham v. Knolls Atomic Power Lab., 554 U.S. 84 (2008) (importance of identifying the specific practice in disparate-impact claims)
Lewis v. City of Chicago, 560 U.S. 205 (2010) (causal connection between practices and disparate impact)
Griggs v. Duke Power Co., 401 U.S. 424 (1971) (disparate impact framework and the need for neutral practices with discriminatory consequences)
Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989) (emphasizes aggregate impact analysis in disparate-impact cases)
Doninger v. Pac. N.W. Bell, Inc., 564 F.2d 1304 (9th Cir. 1977) (district court wide discretion on managing Rule 23(b)(3) superiority analysis)