Frohm v. City and County of San Francisco

Background

Darlene Frohm, a Black woman, worked for the City’s Office of Contract Administration from February 2000 until April 2018. In April 2018, she was appointed to a temporary Category 17 position as Assistant to the Deputy Director of Operations in the Public Works Department. The position was classified as a 0932 Manager IV position.

Frohm alleged that she was qualified for, and performed the work of, the higher 0941 Manager VI classification but was not promoted. Her operative complaint asserted race-discrimination claims under the California Fair Employment and Housing Act and Title VII, retaliation claims under the California law, and an Equal Pay Act claim based on lower pay than male employees. She also alleged under Title VII that she was paid less than non-Black colleagues.

The City moved for summary judgment on the discrimination and Equal Pay Act claims and partial summary judgment on the retaliation claims. It did not seek summary judgment on retaliation claims concerning Frohm’s October 2023 termination. Although Frohm’s opposition was untimely, the court considered it.

Discrimination claims

The court analyzed Frohm’s California and federal race-discrimination claims together. Under the burden-shifting framework used for employment-discrimination claims, a plaintiff must first show, among other things, that she was qualified for the position at issue.

Frohm claimed that the City denied her promotions to permanent positions classified at the 0932, 0941, and 0954 levels. Applicants for those positions had to pass the City’s management test battery, with a passing score of at least 55.8. Frohm received a score of 52.6 when she took the test in 2023. The court held that she had not shown she was qualified for those permanent positions, making her failure-to-promote discrimination claims unable to proceed.

The court also granted summary judgment on Frohm’s Title VII equal-pay claim based on race. The court treated that claim under a failure-to-promote framework because Frohm argued that she should have been paid as much as three white employees in 0941 positions. The court held that she could not show she was qualified for a 0941 position because she did not pass the required test. The court also noted that she offered no evidence, beyond the fact that certain employees were not Black, supporting an inference of racial discrimination by the employees she identified.

The court declined to consider some additional discrimination theories raised for the first time in Frohm’s opposition brief, including challenges involving the requirement that she take the management test, the City’s Exempt to Permanent Status program, and her reversion to a lower-level position. The court stated that, even if it considered those theories, Frohm had not presented enough evidence to survive summary judgment. It therefore granted the City’s motion as to Frohm’s discrimination claims.

Retaliation claim

Frohm identified three alleged bases for retaliation: the failure to grant a June 2021 request to upgrade her 0932 position to 0941; the failure to let her move from a temporary 0932 position to a permanent 0932 position in July 2021; and the failure to move her to a 0941 position through a temporary Category 18 placement in November 2021.

The claim based on remaining in the 0932 position on a backfilled rather than permanent basis had already been dismissed in an earlier order, and Frohm did not amend her complaint to address the identified deficiencies. The court said that claim was no longer part of the lawsuit.

The court did not consider the retaliation theory concerning the November 2021 Category 18 placement because Frohm had not adequately disclosed it in the complaint or discovery. The court added that, even if it considered the theory, Frohm had not shown that the identified decisionmaker knew about her protected activity, which was required for the claim.

The court denied summary judgment on the retaliation claim concerning the denial of the June 2021 request to upgrade Frohm’s position. The complaint included allegations about that request, and the record contained some evidence that individuals involved in the decision knew about Frohm’s complaints. The court also rejected the City’s argument that denying the upgrade could not be an adverse employment action merely because Frohm would have had to compete for any position created. That retaliation claim remains pending as addressed by the order.

Equal Pay Act claim

The Equal Pay Act prohibits paying employees of one sex less than employees of the opposite sex for substantially equal work requiring equal skill, effort, and responsibility under similar working conditions. The City argued that the pay difference resulted from its job-classification system, which was a factor other than sex.

The court held that a gender-neutral classification system alone does not establish that defense. The employer must show that the classification system rests on legitimate, business-related differences in the responsibilities and qualifications of the positions. The City disputed whether Frohm performed work substantially equal to the work of the male employees she identified, but it did not ask the court to decide that issue for purposes of the motion. Because the City had not shown an absence of disputed material facts concerning its defense, the court denied summary judgment on the merits of Frohm’s Equal Pay Act claim.

The court separately addressed the statute of limitations. Equal Pay Act claims generally have a two-year limitations period, extended to three years for a willful violation. The court held that Frohm had not presented evidence showing that the City knew, or recklessly disregarded whether, its conduct violated the Equal Pay Act. The court therefore applied the two-year limitations period.

Disposition

Judge Jon S. Tigar granted in part and denied in part the City’s motion for summary judgment. The motion was denied as to Frohm’s retaliation claim based on the denial of Durden’s June 2021 request to upgrade Frohm’s position from 0932 to 0941, and as to the merits of Frohm’s Equal Pay Act claim. It was granted in all other respects. The order does not state that any ruling was with or without prejudice.