In re Western Dist. Xerox Litigation

• Decision Date: 26 April 1994
• Docket Number: Master File No. 91-MC-138L.
• Citation: 850 F. Supp. 1079
• Parties: In re WESTERN DISTRICT XEROX LITIGATION. This document applies to all cases.
• Court: U.S. District Court — Western District of New York

850 F. Supp. 1079

In re WESTERN DISTRICT XEROX LITIGATION This document applies to all cases.

Master File No. 91-MC-138L.

United States District Court, W.D. New York.

April 26, 1994.

Donna Marianetti, Rochester, NY, for plaintiffs.

Eugene D. Ulterino, Rochester, NY, for defendant.

DECISION AND ORDER

LARIMER, District Judge.

Between June 1989 to April 1990, twenty-three former employees¹ of Xerox Corporation ("Xerox") filed twenty-three separate actions, in the Western District of New York, alleging that they were each terminated or forced to retire from Xerox during 1981-82, on account of their age, in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq.

The alleged discriminatory acts occurred during 1981-82 when Xerox reduced its work force by 18,000 employees.

All of the plaintiffs, in their separate complaints, have alleged that Xerox took the adverse job actions as part of a "pattern and practice" of age discrimination.

A Case Management Order was entered August 15, 1991, which created a Master Docket for the twenty-four cases filed against Xerox at that time. This order simply provided procedures for filing documents and orders relating to all of the cases with the direction that orders and documents affecting all of the cases be filed and docketed with the caption "In Re: Western District Xerox Litigation, 91-MC-138L." By dint of that order, the cases were treated as consolidated for purposes of case management and discovery, in part because plaintiffs were all represented by the same law firm, and to properly manage discovery. That order did not purport to consolidate the cases for any other purpose or for trial.

Xerox has moved for summary judgment in each of the cases and, in the alternative, for in limine rulings with respect to certain issues. Some grounds for summary judgment raised by Xerox affect all of the plaintiffs as a group; others relate only to individual plaintiffs.

This decision will deal with some but not all of the issues raised in Xerox's summary judgment motions. This decision will deal with the following issues:

1. Whether Xerox is entitled to summary judgment on plaintiffs' claim that Xerox engaged in a pattern and practice of age discrimination affecting all the plaintiffs; and

2. Whether plaintiffs' actions should be deemed commenced within two years after the alleged discriminatory acts or within three years, the latter date requiring proof of willfulness under 29 U.S.C. § 626(e)(1).

Procedural History: Lusardi Action

Plaintiffs' claims have a lengthy, complex procedural history involving several federal courts. This background is of more than mere historical interest; it directly affects some of the issues between the parties on this summary judgment motion.

In 1983, Jules Lusardi and a group of former Xerox employees, commenced a class action (hereinafter "Lusardi action") in the District Court of New Jersey alleging, in part, that they and others similarly situated, were terminated as a result of "age based corporate policies and practices ... designed ... to terminate or force into retirement a high percentage of persons 40 or over ..." Lusardi v. Xerox, 118 F.R.D. 351, 353 n. 4 (D.N.J.1987).

In 1984, the case was conditionally certified as an "opt in" class action under the ADEA. All of the twenty-three named plaintiffs in this action in the Western District of New York, together with about 1300 others, opted in to the class.

For about two years, from 1984 through 1986, the parties engaged in extensive discovery in the Lusardi action, pursuant to a discovery plan. According to that discovery plan, discovery was conducted relative to the thirteen named plaintiffs in the Lusardi action and fifty-one randomly selected class members which purported to represent a "microcosm" of the entire class. Lusardi, 118 F.R.D. at 354.

During this discovery,

Xerox produced and counsel for the plaintiffs examined approximately 100,000 pages of documents; 29 days of depositions were taken of nine Xerox executives and key members of its personnel departments; 25 days of depositions were taken of 10 of the 13 named plaintiffs; and a total of nearly 100 interrogatories were answered.

Id., 118 F.R.D. at 354.

After these extensive discovery proceedings, on November 5, 1987, the district court (Lechner, J.) decertified the class in a lengthy opinion (118 F.R.D. 351). Judge Lechner determined, among other things, that the class representatives and other members of the class were not similarly situated and, for the many reasons that he discussed in his decision, Judge Lechner decertified the class. In so ruling, Judge Lechner noted:

The described downsizing of the Xerox work force was implemented and managed at the local level. The local management assessed its particular work force needs, consistent with corporate policy. Accordingly, a reduction differed not only from organization to organization but also from manager to manager, as well as from RIF to RIF. It appears there was never a corporate-wide VRIF or IRIF. However, "there were at least 40 separate IRIF's and more than 25 separate VRIF's during the class period conducted at various times by particular Xerox organizations."

Id., 118 F.R.D. at 356.²

On remand from a mandamus petition to the Third Circuit, Lusardi v. Lechner, 855 F.2d 1062 (3d Cir.1988), Judge Lechner, on reconsideration, stated that he "was satisfied this case cannot continue in a class action status." Lusardi v. Xerox Corp., 122 F.R.D. 463, 465 (D.N.J.1988).

Judge Lechner stated the following:

The opt-in plaintiffs present what amounts to a series of more than thirteen hundred individual cases. The members of the proposed class come from different departments, groups, organizations, sub-organizations, units and local offices within the Xerox organization. The opt-in plaintiffs perform different jobs at different geographic locations and were subject to different job actions concerning reductions in work force which occurred at various times as a result of various decisions by different supervisors made on a decentralized employee-by-employee basis. This case should not continue in a class status.

Id., 122 F.R.D. at 465.

A final order was entered on November 10, 1988, decertifying the action as a class action.

After the decertification of the class action, each of the twenty-three plaintiffs, from June 1989 to April 1990, commenced an individual action in the Western District of New York against Xerox alleging that they were each terminated or forced to retire on account of a corporate-wide pattern and practice of age discrimination at Xerox.

I. Pattern Or Practice of Discrimination

Plaintiffs propose that all of these cases be consolidated for a single trial on the issue of whether Xerox engaged in a pattern or practice of age discrimination when Xerox reduced its workforce by 18,000 employees in 1981-82. If liability is found at that stage, plaintiffs suggest that separate trials then be held to determine damages.

This approach generally follows that described in Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). The Teamsters model differs from the typical disparate treatment claim in that, at the prima facie stage, plaintiffs need not offer evidence that each of them was discriminated against. Rather, plaintiffs must show that discrimination of the type alleged was the defendant's "standard operating procedure ..." Cooper v. Federal Reserve Bank of Richmond, 467 U.S. 867, 876, 104 S.Ct. 2794, 2799, 81 L.Ed.2d 718 (1984). Such a showing, if made, creates "a presumption that the individual class members have been discriminated against ..." Id. at 875, 104 S.Ct. at 2799. The case then moves on to a second, "remedial" stage at which defendant bears the burden of demonstrating that the individual plaintiffs were not victims of the discriminatory practice. Teamsters, 431 U.S. at 362, 97 S.Ct. at 1868. The Teamsters approach thus differs from the traditional McDonnell Douglas³ analysis in that the burden of persuasion can shift from plaintiffs to defendant.

For the reasons that follow, Xerox's motion for summary judgment is granted on the claim that Xerox engaged in a pattern and practice of discrimination. There is an insufficient legal and factual basis to submit this theory of liability to the jury.

Law of the Case: Lusardi Action

First of all, a strong argument can be made that this issue has already been decided between these parties in the prior class action proceedings in Lusardi.

All twenty-three plaintiffs were members of the Lusardi class action and, therefore, they are all bound by the judgment and all orders entered in that case. Cooper, 467 U.S. at 880, 104 S.Ct. at 1801-02; Sperling v. Hoffmann-LaRoche, 145 F.R.D. 357, 364 (D.N.J.1992); see also Fed.R.Civ.P. 23(c)(2)((a).

"`As most commonly defined, the doctrine of law of the case posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.'" Christianson v. Colt Industries Operating Corp., 486 U.S. 800, 816, 108 S.Ct. 2166, 2177, 100 L.Ed.2d 811 (1988) (quoting Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 1391, 75 L.Ed.2d 318 (1983)).

It is clear from Judge Lechner's two decisions in Lusardi, (118 F.R.D. 351 and 122 F.R.D. 463) that he believed and found that the representative plaintiffs in the class action had failed to establish any corporate-wide policy or practice of age discrimination.

In his initial decision decertifying the class, he held that plaintiffs were not similarly situated in part because "plaintiffs, after extensive discovery, had not uncovered any policy or practice of age discrimination at Xerox." Lusardi, 118 F.R.D. at 359. Judge Lechner discussed, at length, the many reasons why the plaintiffs, and others, were not similarly situated, requiring decertification of the class. See Lusardi, ...