Thiessen v. General Electric Capital Corp.

• Decision Date: 28 September 2001
• Docket Number: No. 98-3208,98-3208
• Citation: 267 F.3d 1095
• Parties: (10th Cir. 2001) GARY A. THIESSEN, Plaintiff-Appellant, v. GENERAL ELECTRIC CAPITAL CORPORATION, doing business as GE Capital, and its representatives; MONTGOMERY WARD CREDIT SERVICES, INC., formerly known as Monogram Retailer Credit Services, Inc., a subsidiary of General Electric Capital Corporation, and its representatives, Defendants-Appellees, AMERICAN ASSOCIATION OF RETIRED PERSONS; NATIONAL EMPLOYMENT LAWYERS ASSOCIATION; EQUAL EMPLOYMENT ADVISORY COUNCIL, Amici Curiae
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1095

267 F.3d 1095 (10th Cir. 2001)

GARY A. THIESSEN, Plaintiff-Appellant, v. GENERAL ELECTRIC CAPITAL CORPORATION, doing business as GE Capital, and its representatives; MONTGOMERY WARD CREDIT SERVICES, INC., formerly known as Monogram Retailer Credit Services, Inc., a subsidiary of General Electric Capital Corporation, and its representatives, Defendants-Appellees, AMERICAN ASSOCIATION OF RETIRED PERSONS; NATIONAL EMPLOYMENT LAWYERS ASSOCIATION; EQUAL EMPLOYMENT ADVISORY COUNCIL, Amici Curiae.

No. 98-3208

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

September 28, 2001

Appeal from the United States District Court for the District of Kansas, (D.C. No. 96-CV-2410-JWL) [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Bert S. Braud, The Popham Law Firm, P.C., Kansas City, Missouri (John M. Klamann and Dirk Hubbard, Klamann & Hubbard, P.A., Overland Park, Kansas; Dennis E. Egan, The Popham Law Firm, P.C., Kansas City, Missouri, with him on the briefs), for the appellant.

Glen D. Nager, Jones, Day, Reavis & Pogue, Washington, D.C. (Steven T. Catlett and Matthew W. Lampe, Jones, Day, Reavis & Pogue, Columbus, Ohio, with him on the brief), for the appellees.

Sally Dunaway, AARP Foundation Litigation, Washington, D.C., on the brief for amicus curiae American Association of Retired Persons.

Paula Brantner, San Francisco, California, and Drew B. Tipton, Houston, Marek & Griffin, L.L.P., Victoria, Texas, on the brief for amicus curiae National Employment Lawyers Association.

Ann Elizabeth Reesman and Erin Quinn Gery, McGuiness & Williams, Washington, D.C., on the brief for amicus curiae Equal Employment Advisory Council.

Before BRISCOE, REAVLEY,^* and MURPHY, Circuit Judges.

ORDER

Appellees' petition for rehearing is granted. Our opinion of July 3, 2001 is withdrawn and a revised opinion is filed with this order.

The petition for rehearing en banc was transmitted to all of the judges of the court who are in regular active service as required by Fed. R. App. P. 35. As no member of the panel and no judge in regular active service on the court requested that the court be polled, the petition for rehearing en banc is denied.

OPINION

BRISCOE, Circuit Judge.

Plaintiff Gary Thiessen, an employee of defendants General Electric Capital Corporation (GE) and Montgomery Ward Credit Services, Inc., filed this putative class action under the Age Discrimination in Employment Act (ADEA) alleging that he and other similarly situated employees had been adversely affected by a pattern or practice of age discrimination on the part of defendants. Although the district court initially certified a class of twenty-three plaintiffs, it ultimately decertified the class, dismissed the opt-in plaintiffs, and granted summary judgment in favor of defendants with respect to Thiessen's individual claims. Thiessen now appeals claiming the district court erred in (1) decertifying the class and dismissing the opt-in plaintiffs, (2) granting summary judgment in favor of defendants with respect to his individual claims of age discrimination, (3) refusing to allow eight proposed plaintiffs to join the class, and (4) refusing to allow him to depose defendants' corporate counsel. We exercise jurisdiction pursuant to 28 U.S.C. 1291, and reverse and remand for further proceedings.

I.

GE is the parent company of General Electric Capital Services (GECS), which in turn owns General Electric Capital Credit (GECC). Within GECC is the Retail Financial Services unit (RFS). In 1989, GECC purchased Monogram Retail Credit Services, Inc. (MRCSI), which had been the credit division of retailer Montgomery Ward. MRCSI became a subsidiary of the RFS unit after the acquisition, and in 1997, it was renamed Montgomery Ward Credit Services, Inc.¹

Thiessen, who was born on March 7, 1947, began working as a credit manager trainee for MRCSI in 1968. From 1972 to mid-1994, he held various management positions within MRCSI and progressed to Band 4 on the company's five-band pay-grade scale. Between May 1994 and August 1996, Thiessen was placed on "special assignments" and assisted in the construction of MRCSI facilities in Kansas, Illinois, and Georgia. At the completion of those projects, Thiessen transferred to MRCSI's Las Vegas facility and assumed his current position as Band 4 collection manager. According to statements in the record Thiessen's position at the Las Vegas facility was to "be eliminated as of May 30, 1998," and Thiessen allegedly was not "allowed to post for any other positions within GE." Aplt. App. 3 at 2.

On February 5, 1996, Thiessen filed a charge of discrimination with the Kansas Human Rights Commission and the Equal Employment Opportunity Commission (EEOC). He alleged that defendants had "an express but covert 'White Blockers' or 'Blockers' policy of discriminating against older white employees . . . by forcing [them] into early retirement or by eliminating [their] . . . position[s] through restructuring." Id. at Tab C. He further alleged that defendants exercised this "pattern and practice of employment decisions motivated by age and/or race and related factors" against him. Id. Specifically, Thiessen alleged he was repeatedly denied promotions because of his age and race. He subsequently filed this action alleging, in pertinent part, that defendants committed willful violations of the ADEA by denying him various promotions and placing him on "special assignments."² Appee. Supp. App. II at 003. Thiessen further alleged in his complaint that defendants undertook a pattern or practice of systematically discriminating against older employees.

The centerpiece of both Thiessen's individual claims of age discrimination and his claims of class-wide discrimination was a "blocker policy" allegedly adopted and implemented by defendants in the early 1990s. According to Thiessen, in 1991, "GECC management began referring to the older [executive] employees as 'blockers,' because in their view these employees were 'blocking' the advancement of younger, newly recruited employees," in particular those younger employees who were participants in defendants' Management Development Program (MDP). Id. at 004. On March 2, 1992, Dave Ekedahl, a vice-president at RFS, and David Ferreira, vice-president of human resources for GECC, sent a memorandum to Steve Joyce, the then president and CEO of MRCSI, and Jeff Faucette, vice-president of human resources for MRCSI, asking, "What are plans to upgrade executive talent . . . remove blockers." Appee. Supp. App. I at 119. In response to this memo, Faucette directed his subordinates to prepare severance worksheets and retirement packages for various MRCSI employees over the age of forty, including Thiessen and several of the opt-in plaintiffs (Lawson, Gwen Colwell, Bob Demartine, Melva Heid, and Bob Marsonette) none of whom had requested such packages. On March 1, 1993, Ferreira circulated a memo to Faucette and others again discussing the subject of "blockers." Joyce and Faucette allegedly gave a presentation discussing Band 4 Blockers at a 1993 leadership review meeting attended by Ferreira. At a May 1993 meeting of MRCSI human resource managers, the concept of "blockers" was again discussed and outlined by Faucette. At a June 18, 1993, meeting at MRCSI's Merriam, Kansas facility, Faucette distributed a list of possible blockers to the human resource managers. The managers were effectively instructed to discuss the blocker policy with their respective operational managers, and assist the operational managers in identifying blockers and carrying out the policy. Ultimately, Thiessen alleges, the operational managers implemented the "blocker policy" by taking various negative employment actions (e.g., negative performance evaluations, demotions, terminations, reductions in force, placement on "special projects," etc.) toward older employees identified as blockers.

Thiessen alleged defendants' "blocker policy" impacted all of the opt-in plaintiffs, each of whom allegedly suffered some type of adverse employment action. On an individual level, Thiessen alleged he was identified by defendants as a blocker, and he was (1) denied a business center manager position in Las Vegas in 1993, (2) phased out of his position as National Attorney-Agency manager in 1994 and placed on "special assignment," (3) downgraded on his 1993 and 1994 performance reviews, and (4) denied two remittance processing manager positions in 1995.

Defendants denied having any pattern or practice of discrimination. Although they acknowledged there had been some discussion among certain employees of blockers, they denied that any type of "blocker policy" was implemented anywhere in the organization. Further, defendants alleged that in the fall of 1994, Gail Lanik, the CEO of MRCSI and successor to Steve Joyce expressly repudiated the notion that employment decisions were based on any "blocker policy." In response to defendants' denials, Thiessen alleged that, notwithstanding Lanik's purported repudiation, the "blocker policy" continued to be used on a covert basis. In support of his allegation, Thiessen pointed to alleged acts of employment discrimination against him and the other proposed plaintiffs after the fall of 1994. Thiessen also pointed to statistical evidence that allegedly demonstrated older workers were treated less favorably than younger employees.

During the course of discovery, the district court conditionally certified a class of twenty-three plaintiffs (Thiessen and twenty-two opt-in plaintiffs). Thiessen v. General Elec. Capital Corp., 996 F. Supp. 1071, 1083 (D. Kan. 1998) (Thiessen I). In doing so, the district court noted:

Mr. Thiessen has not simply averred the existence of a discriminatory policy or merely argued that circumstantially one should infer its existence by virtue of numerous people in the protected category having incurred adverse employment actions. Instead, he has come forward with direct...