Thiessen v. General Elec. Capital Corp.

• Decision Date: 23 June 1998
• Docket Number: No. 96-2410-JWL.,96-2410-JWL.
• Citation: 13 F.Supp.2d 1131
• Parties: Gary A. THIESSEN, Plaintiff, v. GENERAL ELECTRIC CAPITAL CORPORATION, d/b/a GE Capital, and Montgomery Ward Credit Services, Inc., f/k/a Monogram Retailer Credit Services, Inc. Defendants.
• Court: U.S. District Court — District of Kansas

13 F.Supp.2d 1131

Gary A. THIESSEN, Plaintiff, v. GENERAL ELECTRIC CAPITAL CORPORATION, d/b/a GE Capital, and Montgomery Ward Credit Services, Inc., f/k/a Monogram Retailer Credit Services, Inc. Defendants.

No. 96-2410-JWL.

United States District Court, D. Kansas.

June 23, 1998.

COPYRIGHT MATERIAL OMITTED

Bert S. Braud, Dennis E. Egan, The Popham Law Firm, Kansas City, MO, John M. Klamann, Dirk L. Hubbard, Overland Park, KS, for Gary A. Thiessen, Gene Autry, Pamela S. Chudyba, Qwen Colwell, Barbara A. Croy, Jan L. Cullison, Robert Demartine, James C. Flower, Lawrence P. Fries, Terry M. Grisham, Elaine Hayden, Melva Heid, Linda L. Hess, Christopher P. Kaesberg, James Lawson, Brenda Lewis, Robert Marsonette, Ray Osburn, Kimberly Perron, Diana Polsinelli, Patricia Serra, Salli J. Shirey, Janice F. Trice.

Brian J. Finucane, Sharon D. Hess, Bioff, Singer & Finucane, Kansas City, MO, Glen D. Nager, Jones, Day, Reavis & Pogue, Washington, DC, Steven T Catlett, Matthew W. Lampe, Jones, Day, Reavis & Pogue, Columbus, OH, for General Electric Capital Corporation, Montgomery Ward Credit Services, Inc.

MEMORANDUM AND ORDER

LUNGSTRUM, District Judge.

Plaintiff Gary A. Thiessen brought a collective action against defendants on behalf of himself and 22 opt-in plaintiffs under the Age Discrimination in Employment Act (ADEA). This matter is presently before the court on defendants' motion to decertify the collective action and to dismiss the opt-in plaintiffs (doc. # 319). For the reasons set forth below, the court grants defendants' motion to decertify the collective action and dismisses the claims of the opt-in plaintiffs.

In light of this ruling, defendants' motions for summary judgment with respect to each of the opt-in plaintiffs are moot and the court need only address defendants' motion for summary judgment with respect to plaintiff Gary A. Thiessen. As set forth in more detail below, the court grants defendants' motion for summary judgment as to plaintiff Gary A. Thiessen (doc. # 367).

I. Procedural History

Much of the procedural history of this case is set forth in the court's order provisionally certifying this action as a collective action. See Thiessen v. General Elec. Capital Corp., 996 F.Supp. 1071, 1072-73 (D.Kan.1998). Plaintiff Gary A. Thiessen filed his initial complaint on September 23, 1996 alleging violations of the ADEA arising out of his employment with defendants.¹ During the summer of 1996, Mr. Thiessen sent notices to potential plaintiffs for purposes of proceeding as a collective action under § 216(b).² A total of thirty individuals elected to opt-in to the action and filed the requisite consent forms.

After engaging in three months of discovery both on the merits and on the issue of the appropriate composition of the proposed opt-in group, Mr. Thiessen moved the court to join the opt-in plaintiffs and to certify the action as a collective action under § 216(b). At that time, based on the record evidence before it, the court found that Mr. Thiessen had made a sufficient threshold showing that twenty-two opt-in plaintiffs were "similarly situated" to justify a provisional certification as a collective action under § 216(b).³ The court cautioned, however, that it would further review the certification issue in connection with a timely filed motion for decertification after the close of all discovery on liability.

The court did not make a conclusive determination on the certification issue in light of certain deficiencies in the record. With respect to Mr. Thiessen's evidence, the court highlighted the lack of any significant showing by Mr. Thiessen that a specific causal link existed between the alleged blocker policy and the adverse job actions at issue in the case. With respect to defendants' evidence, the court found that the record lacked the requisite detail to support defendants' bare assertions that it would assert defenses specific to the numerous individualized claims of each opt-in plaintiff. Without such detail, the court was unable to adequately assess whether individualized defenses would predominate at trial. Finally, the court expressed a concern with coherently managing a trial of the action and presenting the evidence in a manner that would not confuse the jury or unduly prejudice any party.

In their papers filed in connection with defendants' motion to decertify, the parties have attempted to alleviate the concerns expressed by the court in its provisional certification order. The court has carefully considered the parties' papers in light of the specific deficiencies identified in its previous order and is prepared to rule. As set forth in more detail below, the court grants defendants' motion to decertify and dismisses the claims of the opt-in plaintiffs.

II. Background

Although a brief overview of the factual context of this case is set forth in the court's order provisionally certifying this action as a collective action, see Thiessen v. General Elec. Capital Corp., 996 F.Supp. 1071, 1072-73 (D.Kan.1998), some additional background information may be helpful in understanding the court's ruling today. Although the parties have provided the court with much detail about the alleged "blocker" policy, the court focuses here only on those facts relevant to the "similarly situated" analysis — whether a specific link exists between the blocker concept and the adverse employment actions at issue with respect to each of the opt-in plaintiffs and whether individual issues in the case will predominate at trial.

Defendants consist of several, related corporate entities: General Electric Capital Corporation (GECC); Monogram Retail Credit Services, Inc. (MCRSI), now known as Montgomery Ward Credit (MWC); and Retail Financial Services (RFS). The plaintiff group consists primarily of former and current employees of MWC. In March 1992, Dave Ekedahl (Vice President of RFS) and David Ferreira (Vice President of Human Resources for GECC) sent a memorandum to Steve Joyce (President and CEO of MWC) and Jeff Faucette (Vice President of Human Resources for MWC) regarding suggested topics for discussion during the upcoming 1992 Leadership Review. A "Leadership Review" is an annual meeting of senior staff (i.e., those employees who reported directly to Steve Joyce) to assess MWC's business. The discussion topics for the 1992 Leadership Review included "What are plans to upgrade executive talent level ... remove blockers."⁴ According to plaintiffs, the term "blocker" referred to well-performing older employees whom high-level management considered to be blocking the career paths of fast-track younger management employees (referred to as "high potential" employees or "hi-pots").

In connection with the 1993 Leadership Review, Faucette prepared a one-page overview of his vision of the blocker concept. The document, entitled "Band 4 Blockers,"⁵ reads as follows:

• Out of 47 Band 4 Associates, 26 are "Blockers" (55%)⁶

• Almost all have satisfactory or better performance

• Potential actions

— Re-look at early retirement options

— Some positions can be eliminated through restructuring

— Continue to move high potential MRCSI associates around the "blockers" and into RCFS jobs

According to plaintiffs, Steve Joyce discussed this document with his senior staff during the 1993 Leadership Review. In addition, in May 1993, Jeff Faucette distributed and discussed this document during MWC's annual HR meeting in Macon, Georgia. All of MWC's Human Resource managers were present. Although Faucette did not identify any specific "blockers" during this meeting, he asked the HR managers to submit names of possible blockers.

In June 1993, Faucette met with the Merriam, Kansas-based HR employees to discuss the blocker concept. The attendees at the meeting were Karen Macke, MWC's manager of compensation and benefits, and the human resources managers for the three major divisions in MWC—Jackie Wolf, collections department; Brenda Thomas, cardholder services; and Marsha Mondschein, national recovery. The agenda for the meeting was entitled "Reorganization Strategy — Potential `Blockers.'"

During this meeting, Faucette distributed a list of individuals specifically identified as "possible blockers." According to defendants, this list constituted an analysis of early retirement options for selected individuals based on Faucette's perception of the performance and promotability of the listed individuals. The birth date of all individuals is included on the list and all individuals on the list were over the age of 40. Plaintiff Gary A. Thiessen and opt-in plaintiffs Robert DeMartine, Melva Heid, and Robert Marsonette appear on this list of "possible blockers." Opt-in plaintiff Gwen Colwell is listed on the same document in a separate category ("Over Age 55"). Opt-in plaintiffs James Lawson and Jim Flower appear on a separate handwritten list labeled "blockers."

During this June 1993 meeting, Faucette instructed the HR managers to make a note of the persons on the list within each of their respective divisions, meet with their respective operational managers, and discuss potential methods of "mov[ing] some of these blockers out."⁷ In light of Faucette's request, each HR manager met with her respective operational manager to discuss the blocker concept: Brenda Thomas met with Rick Richards; Marsha Mondschein met with Mary Kinsey;⁸ and Jackie Wolf met with Jerry Glover. The substance of these discussions, however, is the subject of much dispute and not relevant to the court's analysis.

According to plaintiffs, the blocker policy carried over into 1994. In support of this contention, plaintiffs highlight two 1994 Leadership Review charts which depict each employee's potential as measured against the employee's performance. According to these charts, an employee could be "meeting" or "exceeding" performance expectations and yet have "steady" potential rather than "high potential." Several of the plaintiffs are...