Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. 455692
Jenkins, J.
This is an appeal from the judgment entered in favor of defendants City and County of San Francisco, the San Francisco Police Department and Police Chief Heather Fong (Chief Fong), after the trial court granted their motion for summary judgment. Plaintiffs, seven San Francisco Police Officers denied promotions to the rank of Sergeant, claim on appeal that summary judgment was inappropriate because the evidence was sufficient to create triable issues of material fact regarding whether defendants’ promotional decisions violated Government Code section 3304, subdivision (b), the due process clause of the California Constitution, and various municipal rules. We affirm.
Plaintiffs are Robert Leung, Charles Chan, Severo Flores, Clodagh Coles, Angelo Spagnoli, Josephine Borges, and Constantine Zachos.
FACTUAL AND PROCEDURAL BACKGROUND
On August 30, 2006, plaintiffs filed a complaint alleging five causes of action: (1) violation of Government Code section 3304, subdivision (b); (2) violation of due process under the California Constitution, article 1, section 15; (3) violation of due process under 42 U.S.C. section 1983; (4) violation of the Americans with Disabilities Act, 42 U.S.C. section 12101 et seq.; and (5) declaratory relief.
The complaint arose out of circumstances surrounding a promotional examination administered by the San Francisco Police Department (Department) in late 2000 for the rank of Sergeant, referred to herein as the Q-50 Sergeant exam. Consistent with the City of San Francisco’s Civil Service Commission Rules (Civil Service Rules), the Department posted a public announcement in September 2000 for the Q-50 Sergeant exam that, among other things, described the nature of the exam, the prerequisite qualifications for eligibility, and the selection process that would apply. (Former Civ. Serv. Rules, rules 210 to 214 [issued in 2000].) Specifically, the announcement stated that the “Rule of Three” would govern the selection process, unless an adverse impact on minority groups was detected, at which point the Department’s human resources director would be permitted to direct the appointing authority (in this case, the Police Chief) to follow an alternative lawful selection process designed to minimize or eliminate the adverse impact.
The San Francisco Charter (Charter) mandates that the City’s Civil Service Commission “provid[e] qualified persons for appointment to the service of the City and County.” (Charter, § 10.100.) The Civil Service Commission is thus required to “adopt rules, policies and procedures to carry out the civil service merit system,” which includes adopting rules to govern the City’s hiring and promotional decisions. (Charter, § 10.101.)
Unless otherwise stated, all citations to the version of the Civil Service Rules in effect in 2000, when the Q-50 Sergeant exam was announced and administered, are designated “former Civil Service Rules,” and all citations to the current version of those rules, issued in 2004, are designated “Civil Service Rules.”
Generally, when making promotional decisions from a list of eligible candidates who have taken a promotional exam, a two-step selection process is followed. First, a certain number of candidates are promoted based solely on their exam scores. Second, a certain number of candidates, whose exam scores are deemed statistically equal based upon a formula widely used in promotional testing, are “banded” together in a group. The appointing officer then selects candidates for promotion from the band using job-related, non-discriminatory secondary criteria, such as the needs of the Department or the specialized skills or experience of the candidates.
“Banding” has the effect of equalizing the individual scores of candidates within a designated range on the eligible list. Accordingly, candidates within the band are deemed equally qualified with respect to the skills and abilities measured by the exam, and the appointing officer then differentiates among those candidates using secondary criteria as a guide. (Former Civ. Serv. Rules, rule 213.4.) The wider the band of candidates, the more discretion the appointing officer has in selecting candidates for promotion. (San Francisco Fire Fighters Local 798 v. City and County of San Francisco (2006) 38 Cal.4th 653, 665, 680-681.) California courts recognize banding as a valid method of making hiring and promotional decisions. (Id. at p. 679, fn. 4.)
Where the Rule of Three governs the selection process, all candidates on the eligible list who receive the three highest exam scores are certified as available for promotion. (Former Civ. Serv. Rules, rule 202.6.) Because of tie scores, there are usually a greater number of certified candidates than available positions, so the appointing officer must choose among those candidates using his or her discretion and the secondary criteria. Where there are multiple positions available, the appointing officer must choose from the number of ranks corresponding to the number of open positions, plus two. (Ibid.) For example, when one position is available, the appointing officer may choose from among those candidates receiving the top three ranks of scores. As additional positions become available, officers with the next highest score are added to the list as certified candidates, and when two additional positions are available, those with the next highest score are added to the list, such that, for example, when three positions are available, candidates with the top five ranks of scores are included on the eligible list, and so on.
In this case, after the Q-50 Sergeant exam was administered, an analysis of the raw scores detected an adverse impact, and thus, consistent with the public announcement, an alternative selection process was followed. Under that process, the Rule of Three was used to rank the first 50 candidates, and candidates who ranked between 51 and 160 were then placed in a band. The first 50 candidates were promoted based solely on their examination score, and the appointing authority would thereafter select from among those candidates between 51 and 160 in the band. As candidates from the list were promoted, the band would slide down beyond the rank of 160 using the same formula. All plaintiffs were included on the list of eligible candidates within this band.
The public announcement for the Q-50 Sergeant exam had also advised candidates that they would receive credit points for having experience as a Field Training Officer (FTO). The Department believed FTO experience helped prepare officers for serving in supervisory roles. Accordingly, the announcement advised candidates that, if they lacked FTO experience, they had the option of signing a “waiver” entitling them to 40 FTO credit points for the Q-50 Sergeant exam in exchange for their agreement to waive consideration for promotion from the eligible list until their completion of two years of FTO service. Three of the plaintiffs — Officers Leung, Spagnoli and Coles — signed this waiver and received the credit points.
Such waivers were authorized by former Civil Service Rules, rule 213.10, which permitted otherwise eligible candidates to be placed on inactive status for various reasons, including the candidate’s request.
In October 2002, then San Francisco Police Chief Sanders (Chief Sanders) issued a letter to all eligible candidates describing the secondary criteria that would be used in the selection process. Specifically, Chief Sanders identified the secondary criteria as the candidates’ assignments, education, commendations and awards, bilingual certification, and disciplinary records since November 1, 1997. He further reminded the candidates that “the decision to promote any candidate from the band rests with the Appointing Officer.”
As was clarified in a letter on October 23, 2002, to candidates from Terri Brady, the Department’s Examination Unit Supervisor, each candidate received the following: (1) one point for having five years of relevant experience; (2) two points for having a B.A., B.S. or higher degree, or one point for having an A.A. degree or 60 units or more from an accredited college or university; (3) two points for having received a Gold, Silver or Bronze Medal or Purple Heart or one point for having received a Meritorious Conduct or Lifesaving Award or Police Commission Commendation; (4) one point for having a bilingual certification in Spanish or Chinese; and (5) one point for having no sustained complaints since November 1, 1997, a negative point (-1) for having received a written reprimand or suspension of five days or less since November 1, 1997, and two negative points (-2) for having received a suspension of six days or more since November 1, 1997.
When Chief Fong became the appointing officer in 2004, her predecessors had already made numerous promotions from the list of eligible candidates within the band. In July and August 2005, Chief Fong promoted 57 officers to the rank of Sergeant from the list of eligible candidates in the band, which at that time started at rank 71 and ended at rank 180. In making her promotional decisions, Chief Fong used the secondary criteria established under Chief Sanders’s administration. According to Chief Fong’s testimony, with respect to each candidate, she reviewed summaries of their job, education and disciplinary histories, and considered their demonstrated specialized skills and experience. In addition, Chief Fong considered the needs of the Department. Then, using her discretion, she promoted those candidates she believed were most qualified for the job. According to Chief Fong’s deposition testimony, each of her decisions was based on merit.
None of the plaintiffs was among those officers promoted by Chief Fong. Further, three of the plaintiffs —Officers Leung, Spagnoli and Coles — were not even considered for promotions because they had signed the FTO waiver and had received the 40 credit points, but had not yet completed the requisite two years of FTO service. As such, Chief Fong considered these three plaintiffs ineligible for promotion. After the eligible list from the Q-50 Sergeant exam expired on August 22, 2005, plaintiffs thus filed the complaint in this action, asserting that defendants improperly relied on non-merit-based factors in making promotional decisions.
On September 28, 2006, defendants removed this action to the United States District Court for the Northern District of California and, after discovery, moved for summary judgment. The federal district court granted defendants’ motion for summary judgment with respect to the causes of action for violations of 42 U.S.C. section 1983 and the Americans with Disabilities Act. In granting defendants’ motion, the district court found, among other things, that plaintiffs had no constitutionally protected property right in receiving a promotion, and that the rules and procedures cited by plaintiffs did not significantly limit Chief Fong’s discretion to make promotional decisions. The district court noted in particular that the selection process relied upon by Chief Fong in making her decisions, including the banding process, had already been deemed lawful by California federal and state law. (See Officers for Justice v. Civil Serv. Com’n (9th Cir. 1992) 979 F.2d 721, 727-728 [concluding that the Department’s promotion process, including banding, “offers a facially neutral way to interpret actual scores and reduce adverse impacts on minority candidates while preserving merit as the primary criterion for selection”]; see also San Francisco Fire Fighters Local 798 v. City and County of San Francisco, supra, 38 Cal.4th 653, 680-681.)
Plaintiffs did not appeal the district court’s decision, and the matter was remanded back to San Francisco Superior Court, where defendants filed the summary judgment motion at issue here with respect to the remaining causes of action for violations of Government Code section 3304, subdivision (b), and the California Constitution, article 1, section 15.
After a hearing, the trial court granted defendants’ summary judgment motion. In doing so, the trial court found that Chief Fong, pursuant to a lawful selection process, had discretion to promote any officer from within the band, and that there was no evidence she exercised her discretion in an arbitrary or capricious manner. Further, the trial court rejected plaintiffs’ argument that Chief Fong’s discretion was restricted by Civil Service Rules adopted in 2004, more than three years after the Q-50 Sergeant exam was administered, and found that, in any event, she was immune from liability for her discretionary acts pursuant to Government Code section 620.2. Finally, the trial court found plaintiffs had not met their burden to produce evidence of a property interest or other statutorily conferred benefit in receiving a promotion.
Judgment was thus entered in favor of defendants on November 24, 2008, leading plaintiffs to file this timely appeal.
DISCUSSION
Plaintiffs challenge the trial court’s grant of summary judgment to defendants, claiming there are triable issues of material fact regarding whether Chief Fong violated Government Code section 3304, the California Constitution, and applicable municipal rules by making promotional decisions based on factors other than merit. Plaintiffs further claim that they are entitled to an administrative appeal regarding Chief Fong’s promotional decisions and that they have a protected interest in ensuring her decisions were merit-based. Finally, plaintiffs claim Government Code section 820.2 does not immunize Chief Fong from liability for her promotional decisions because she was implementing a “basic policy already formulated” rather than exercising her discretion.
In addressing plaintiffs’ arguments, the following principles guide us. “A trial court properly grants summary judgment where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law.” (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.) Further, a trial court’s grant of summary judgment is reviewed de novo. The reviewing court thus considers all the evidence set forth by the parties in support of and in opposition to the motion except that to which objections have been made and sustained. The reviewing court then determines whether a triable issue exists as to any material fact. (Code Civ. Proc., § 437c, subd. (c).) Accordingly, the reviewing court must decide whether defendants, as the parties prevailing on summary judgment, have with respect to each cause of action “shown that one or more elements... cannot be established, or that there is a complete defense to that cause of action. Once the defendant... has met that burden, the burden shifts to the plaintiff... to show... a triable issue of one or more material facts exists as to that cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).) If plaintiffs have not met this burden, summary judgment in favor of defendants is proper. (Ibid.)
Here, in arguing that Chief Fong’s promotional decisions were not based on merit in violation of Government Code section 3304, subdivision (b); the California Constitution, Article 1, section 15; and various municipal rules, plaintiffs assert as follows: (1) Chief Fong was required, but failed, to submit the secondary criteria she would use to make promotional decisions to the San Francisco Civil Service Commission (Civil Service Commission). (Civ. Serv. Rules, rules 213.2.1, 213.4.1, 213.4.3-6.) (2) Chief Fong was required, but failed, to get approval regarding the secondary criteria she would use to make promotional decisions from the Civil Service Commission. (Civ. Service Rules, rules 213.2.1, 213.4.1, 213.4.3-6.) (3) Chief Fong was required, but failed, to use only secondary criteria approved by the Civil Service Commission in making promotional decisions. (Civ. Serv. Rules, rules 213.2.1, 213.4.1, 213.4.3-6.) (4) Chief Fong was required, but failed, to accurately maintain and document the approved secondary criteria she relied upon in making promotional decisions. (Civ. Serv. Rules, rule 213 et seq.) (5) Chief Fong violated the terms of the Field Training Officer (FTO) waiver by refusing to consider extenuating circumstances.
Defendants counter that Chief Fong exercised her discretion in a manner consistent with the then-existing rules governing promotional decision-making. Defendants point out, as did the trial court, that the Civil Service Rules relied upon by plaintiffs were not enacted until 2004, over three years after the Q-50 Sergeant exam was administered. As such, defendants argue, these rules provide no basis for liability. Defendants further point out that the selection process relied upon by Chief Fong resulted from 20 years of judicial supervision under a consent decree that resolved legal challenges to the Department’s hiring and promotional decisions on the basis of race, gender and national origin.
The consent decree was terminated through a court-approved stipulation in 1998.
As an initial matter, we agree with defendants that the Civil Service Rules in effect in 2000, when the Q-50 Sergeant exam was administered, not the revised version of those rules issued in 2004, governed the Department’s selection process in this case. The following facts are relevant to this conclusion.
Under the Civil Service rules that existed in 2000, the appointing officer was required to establish merit-based, nondiscriminatory procedures for selecting candidates for promotion. (Former Civ. Serv. Rules, rule 213.2.1.) In particular, former Civil Service Rules, rule 213.2.1 provided as follows: “The Civil Service Commission endorses and supports the broadening of the Rules governing certification of eligibles from the civil service eligible lists and considers this broadening as an increase in opportunities for appointing officers to select employees who are best suited to perform the duties of specific positions and to provide greater opportunities to maximize multicultural diversity of the work force in... San Francisco. Selection of employees from eligible lists shall be based on merit and fitness without regard to relationship, race, religion, gender, national origin, ethnicity, age, disability, gender identity, political affiliation, sexual orientation, ancestry, marital status, color, medical condition or other non-merit factors or otherwise prohibited nepotism or favoritism. The appointing officer and/or his or her designee shall be responsible for establishing non-discriminatory selection procedures and reviewing the proposed selection with the department’s Personnel Division.” (Former Civ. Serv. Rules, rule 213.2.1. Italics added.)
The revised Civil Service Rules, rule 213, issued in 2004, continues this general policy of non-discrimination, including the requirement that the appointing officer establish non-discriminatory selection procedures. (Civ. Serv. Rules, rule 213.2.1.) In addition, the revised rule 213 now requires, among other things, the appointing officer to maintain documentation of the selection criteria, review the proposed selection with the Department’s Equal Employment Opportunity Officer or the Department of Human Resources Equal Employment Opportunity Unit, make certain reports to the Civil Service Commission on the selection process and, before a job announcement is made, submit proposed criteria to the Civil Service Commission for approval and discuss proposed criteria in an open session with all interested parties. (Civ. Serv. Rules, rules 213.2.1, 213.4.) Plaintiffs rely on these new requirements as a basis for defendants’ alleged liability. We disagree.
Revised Civil Service Rules, rule 213 also clarifies that the appointing officer has an obligation to develop job-related, nondiscriminatory secondary criteria “to guide the selection process following the certification of eligibles on the list of eligibles for the position who are available for appointment.” (Civ. Serv. Rules, rule 213.4.3.) “Secondary criteria may include, but need not be limited to experience(s), training and employment history.” (Civ. Serv. Rules, rule 213.4.4.)
The September 2000 public announcement for the Q-50 Sergeant exam advised candidates, including plaintiffs, that the Rule of Three or, if an adverse impact was detected, an alternative lawful rule, would govern the selection process. Consistent with the then-current version of Civil Service rule 213, Chief Sanders’s letter to all candidates in October 2002 identified the secondary criteria that would be considered during the selection process – to wit, the candidates’ assignments, education, commendations and awards, bilingual certification, and disciplinary records since November 1, 1997. Chief Sanders also reminded candidates that “the decision to promote any candidate from the band rests with the Appointing Officer.” Based on these guidelines, the process of promoting candidates from within the band began.
When Chief Fong took over as appointing officer in 2004, the band extended from the rank of 71 to 180. Chief Fong promoted 57 candidates from within this band in July and August of 2005. Relying on the selection process already in place, Chief Fong used the secondary criteria established in 2002 under Chief Sanders’s administration when making her decisions. In particular, according to her testimony, Chief Fong considered the “banded resume forms” that had been submitted in October 2002 by all candidates that were between the ranks of 51 and 250 in the band. These forms contained information relating to the secondary criteria established and published by Chief Sanders, including the candidates’ job and education history, relevant disciplinary history since November 1997, commendations and awards, and bilingual certification.
Plaintiffs do not contend that the secondary criteria established under Chief Sanders violated Civil Service Rules, rule 213. Nor do plaintiffs contend that Chief Sanders or Chief Fong violated the law by making promotions from a sliding band of candidates whose exam scores were considered equal for purposes of the Q-50 Sergeant exam. (See San Francisco Fire Fighters Local 798 v. City and County of San Francisco, supra, 38 Cal.4th at p. 679 fn. 4 [noting that banding is a lawful process for hiring and promoting civil servants].) Rather, plaintiffs insist that, under the revised Civil Service rule 213, issued in 2004, Chief Fong was required to establish, document and obtain approval for her own secondary criteria before making promotions.
We, however, know of no rule requiring an appointing officer, who assumes his or her position in the midst of a selection process, to reestablish the selection criteria with respect to those candidates remaining on the eligible list. Indeed, we question both the wisdom and fairness of any such rule. As explained above, Chief Fong became the appointing officer for purposes of the Q-50 Sergeant exam in 2004, at a time when the selection process had been ongoing since late 2000, and numerous promotions had already been made. In addition, all candidates had been advised in 2002 of the secondary criteria that would apply to the selection process, and had within months responded by submitting banded resume forms containing their personal information relating to the criteria. Under these circumstances, Chief Fong’s continued reliance on secondary criteria that had already been lawfully established was wholly proper.
The eligible list from the Q-50 Sergeant exam did not expire until August 22, 2005.
We further conclude that Chief Fong’s promotional decisions, including her decision to consider the secondary criteria established under Chief Sanders, were proper under Government Code section 3304 et seq., the so-called Public Safety Officers Procedural Bill of Rights Act.
Similar to Civil Service Rules, rule 213, Government Code section 3304 requires that any denial of a promotion be based on merit rather than other factors. (Gov. Code, § 3304, subd. (b). See also Gov. Code, § 18500, subd. (c)(5) [setting forth the public policy that “[a]pplicants and employees are treated in an equitable manner without regard to political affiliation, race, color, sex, religious creed, national origin, ancestry, marital status, age, sexual orientation, disability, political or religious opinions or non-job-related factors”].) Further, if a promotion is denied on grounds other than merit, the officer candidate is entitled to an opportunity for an administrative appeal of the decision. (Gov. Code, § 3304(b).)
“No punitive action, nor denial of promotion on grounds other than merit, shall be undertaken by any public agency against any public safety officer who has successfully completed the probationary period that may be required by his or her employing agency without providing the public safety officer with an opportunity for administrative appeal.” (Gov. Code, § 3304, subd. (b).)
Plaintiffs claim Chief Fong violated Government Code section 3304, subdivision (b), in making her promotional decisions by relying on factors other than merit. Chief Fong disputes that claim. According to her deposition testimony, in addition to considering the banded resume forms that covered the secondary criteria, Chief Fong considered the candidates’ updated disciplinary records, their demonstrated leadership and administrative skills, their demonstrated specialized skills and qualities, and the needs of the Department. Chief Fong also relied on her own discretion to select candidates who she believed, based on job-related factors, would best serve as Sergeants.
This testimony offered by defendants shows Chief Fong relied on nondiscriminatory, job-related, merit-based factors in making her promotional decisions, as the law requires. As such, plaintiffs were required to offer evidence showing the opposite — i.e., that Chief Fong relied on factors other than merit in making her decisions — such that we can identify a genuine issue of material fact in this case. In considering whether plaintiffs have met this burden, we keep in mind that, to avoid summary judgment, they must do more than deny the credibility of defense witnesses. (Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 807.)
First, in considering plaintiffs’ showing, we quickly dispose of their suggestion that, simply because Chief Fong failed to follow the new Civil Service Rules requiring documentation and approval of secondary criteria, her decisions must have been for reasons that violated Government Code section 3304, subdivision (b). As we have already held, Chief Fong was not required to develop new secondary criteria under the new rules when she assumed the role of appointing officer in 2004, when the selection process with respect to the Q-50 Sergeant exam was well underway. So long as Chief Fong relied on the secondary criteria properly established under Chief Sanders, as well as other merit-based factors, in making her decisions, she cannot be held liable under Government Code section 3304, subdivision (b). (See Burden v. Snowden (1992) 2 Cal.4th 556, 566 [“the [Public Safety Officers Procedural] Bill of Rights Act is not intended to regulate or restrict the appointment of police officers by local law enforcement agencies”].)
Plaintiffs also point to Chief Fong’s testimony that she “look[ed] at a holistic individual” in attempting to prove her promotional decisions were improper. We again disagree. After noting that she looked at a “holistic individual” when deciding who to promote, Chief Fong went on to explain that Sergeants can be given “any supervisorial assignment, whether it’s in the field,... in administration, or...[in] investigations.... [¶]... [¶] [T]here’s [sic] a lot of duties that go in [the rank of Sergeant].” Accordingly, she explained, “I look at the whole picture. What does this person bring? Is this person going to be able to guide officers or are the officers going to have more experience than this individual who is the supervisor.”
This testimony, considered in its entirety, makes clear that Chief Fong’s “holistic” approach to promotional decisions was wholly consistent with her legal obligation to consider only merit-based factors. Specifically, Chief Fong’s testimony demonstrates that she looked at a candidate’s complete professional background when deciding whether he or she would serve well as Sergeant, not that she considered aspects of the candidate’s background that were unrelated to his or her job performance. And even if Chief Fong’s testimony in this regard could be disbelieved, it would provide no basis for reversing the trial court’s grant of summary judgment. (Horn v. Cushman & Wakefield Western, supra, 72 Cal.App.4th at p. 807 [a plaintiff must do more than deny the credibility of the defendant’s witnesses to avoid summary judgment].)
Plaintiffs next point to Chief Fong’s testimony that plaintiffs Spagnoli, Leung and Coles were not even considered for promotions because they signed the FTO waiver. As previously explained, upon signing this waiver, the candidates agreed to waive consideration for promotion until completing two years of FTO service. According to plaintiffs, Chief Fong was required, but failed, to consider extenuating circumstances that precluded plaintiffs Spagnoli, Leung and Coles from completing the two years of service after signing the waiver. The FTO waiver, however, includes no such requirement. Rather, the FTO waiver states that an officer who has signed it waives consideration for promotion until completion of the two years of service “unless appointed to a higher rank which excludes participation, or other extenuating circumstances as determined by the chief of police.” Based on this language, Chief Fong could, but was not required, to consider whether extenuating circumstances existed with respect to the candidates.
Continuing their challenge, plaintiffs insist they were not only eligible for promotions but, based on the secondary criteria established under Chief Sanders, they were “qualified” or “more qualified” than others to serve as Sergeants. In so arguing, plaintiffs claim the banding points awarded based on the secondary criteria in the case of three plaintiffs — Zachos, Flores and Spagnoli — were miscalculated. In addition, plaintiffs claim that information submitted to Chief Fong by certain candidates regarding one of the secondary criteria — disciplinary complaints since November 1, 1997 — was incomplete. Plaintiffs refer us to testimony from Lieutenant Lynette Houge, defendants’ person most knowledgeable about the Department’s system for recording disciplinary complaints, that, due to changes to the computer system, certain candidates’ records may not reflect complaints sustained before 2000. Based on this evidence, plaintiffs claim they may have been passed over for promotions despite having disciplinary records superior to those of candidates who were promoted.
Even if true, this evidence is not sufficient to raise a disputed issue of material fact regarding the propriety of Chief Fong’s promotional decisions. First, “an employee’s subjective personal judgments of his or her competence alone do not raise a genuine issue of material fact.” (Horn v. Cushman & Wakefield Western, supra, 72 Cal.App.4th at p. 816.) Moreover, Chief Fong was not limited to the secondary criteria, including disciplinary records, in making her promotional decisions. So long as Chief Fong considered only merit-based factors, she, like other appointing officers, was permitted to rely on her own discretion, a fact that is undisputed and was fully disclosed to all candidates during the selection process. (Los Angeles County Dept. of Parks & Recreation v. Civil Service Com. (1992) 8 Cal.App.4th 273, 283 [“[an] employer is free to exercise discretion to choose among equally qualified candidates provided the decision is not based on unlawful criteria”].) And in any event, Chief Fong’s testimony made clear that she relied on the underlying source documents, including the candidates’ own banding resumes, not just the exam unit point tally sheets, in deciding who to promote. Accordingly, in the absence of any evidence that Chief Fong’s decisions were based on factors other than merit, we decline to replace her reasoned and far superior judgment with our own.
Our conclusion in this regard likewise disposes of plaintiffs’ claim that, in violation of Government Code section 3304, subdivision (b), they were denied an opportunity to appeal Chief Fong’s decision to deny them promotions. Because Chief Fong’s decisions were not based on “grounds other than merit,” plaintiffs were not entitled to such an opportunity under this provision. (Gov. Code, § 3304, subd. (b).)
Finally, we reject plaintiffs’ related argument that, in violation of their right of due process under the California Constitution, they were deprived of a statutorily conferred interest in ensuring that defendants’ promotional decisions were merit-based. (Cal. Const., Art. 1., § 7.) Even assuming for the sake of argument that plaintiffs could establish such a statutorily conferred interest, they could not establish any deprivation of that interest given our conclusion that defendants’ promotional decisions were indeed merit-based. (Ryan v. California Interscholastic Federation-San Diego Section (2001) 94 Cal.App.4th 1048, 1071 [“[a]lthough under the state due process analysis an aggrieved party need not establish a protected property interest, the claimant must nevertheless identify a statutorily conferred benefit or interest of which he or she has been deprived to trigger procedural due process under the California Constitution”].) Plaintiffs’ constitutional argument thus likewise fails.
Accordingly, for the reasons stated, we conclude the trial court properly granted summary judgment to defendants based on plaintiffs’ failure to establish a disputed issue of material fact with respect to Chief Fong’s promotional decisions. Further, given this conclusion, we need not decide the remaining issue regarding whether Chief Fong was entitled to immunity with respect to her decisions under Government Code section 820.2.
DISPOSITION
The judgment is affirmed.
We concur: Pollak, J., McGuiness, P.J.