Thiessen v. General Elec. Capital Corp.

Citation996 F.Supp. 1071
Decision Date05 February 1998
Docket NumberNo. 96-2410-JWL.,96-2410-JWL.
PartiesGary 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.
CourtU.S. District Court — District of Kansas

Bert S. Braud, Dennis E. Egan, The Popham Law Firm, Kansas City, MO, John M. Klamann, Dirk L. Hubbard, Overland Park, KS, for Plaintiffs.

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 Defendants.


LUNGSTRUM, District Judge.

This matter is presently before the court on plaintiff's motion to join additional parties as plaintiffs and to certify the action as a collective action under the Age Discrimination in Employment Act (ADEA) pursuant to 29 U.S.C. § 216(b) (Doc. # 215). The court conducted a hearing on the motion on January 26, 1998. Having carefully considered the parties' papers and their oral presentations, the court is prepared to rule. For the reasons set forth below, plaintiff's motion is granted in part and denied in part, subject to further review of the certification issue in connection with any motion to decertify.1

I. Procedural History

After exhausting administrative prerequisites, plaintiff Gary Thiessen filed a complaint on September 23, 1996 alleging violations of the ADEA arising out of his employment with defendants.2 On May 2, 1997, the court held a scheduling conference during which counsel for Mr. Thiessen announced their intention to send notices to potential plaintiffs for purposes of proceeding as a collective action under § 216(b).3

Accordingly, the court established a deadline of August 1, 1997 for potential plaintiffs to file "opt-in" request forms. A total of thirty individuals elected to opt-in to the action and filed the requisite consent forms. The parties have engaged in considerable discovery both on the merits and on the issue of the appropriate composition of the proposed plaintiff group.

Mr. Thiessen now moves the court to join the opt-in plaintiffs and certify the action as a collective action under 29 U.S.C. § 216(b). Counsel for Mr. Thiessen did not seek conditional certification of the proposed group prior to sending out notice to potential plaintiffs. Thus, Mr. Thiessen's motion marks the first opportunity the court has had to address the certification issue.

II. Background

Mr. Thiessen has been an employee of defendants for nearly thirty years.4 He is fifty years old. After defendants allegedly denied Mr. Thiessen a series of promotions, Mr. Thiessen filed a charge of discrimination with the EEOC and the Kansas Human Rights Commission alleging violations of the ADEA. In his charge, Mr. Thiessen detailed the circumstances surrounding the promotions at issue. In addition, Mr. Thiessen alleged company-wide discrimination based on age:

Employment decisions at GE Capital for persons similarly situated to me show a "stark pattern" unexplainable on grounds other than age .... GE Capital has a well-established history of "early-outing" or attempting to "early-out" older white executives at or near my level. Further, the company has an express but covert policy of discriminating against older white employees. Older white employees who are performing at a level which meets or exceeds objective expectations are identified as "White blockers" or "blockers." They are called "Blockers" because their continued employment "blocks" the promotion of younger ... "high potential" employees. The company's policy is to force the older white employees into early retirement or to eliminate the employee's position through restructuring.

In his charge, Mr. Thiessen also alleged that "GE Capital has a pattern and practice of removing employees identified as `Blockers' from their positions."

On September 23, 1996, Mr. Thiessen filed a complaint alleging violations of the ADEA. In May of 1997, Mr. Thiessen sent notice of the action to potential plaintiffs for the purpose of proceeding as a collective action under § 216(b). The notice invited individuals who met the following criteria to opt-in to the action:

(1) 40 years of age or older;

(2) employed by General Electric Capital Credit, Montgomery Wards Credit Services or Monogram Retail Credit Services, Inc. (MRCSI);

(3) members of the salaried exempt work force as either a Band III, IV or V employee; and

(4) involuntarily discharged, laid off, terminated, downgraded, demoted, denied advancement opportunities or forced to retire from employment by General Electric Company.

A total of thirty individuals elected to opt-in to the action and filed the requisite consent forms.5 Mr. Thiessen seeks to join all thirty opt-in plaintiffs and to proceed as a collective action under § 216(b).

Discovery has revealed significant differences among the thirty opt-in plaintiffs, both in terms of employment situation and alleged discriminatory treatment. The opt-in plaintiff group consists of individuals who have held dozens of different positions (each with different requirements and responsibilities) across seven states.6 They range in age from approximately 45 to 60 years old and range in tenure from 4 years to 31 years. They have been supervised by many different individuals. In addition, the opt-in plaintiffs represent three of the five salary grades, with a salary range of approximately $25,000 to $75,000.

Finally, and perhaps most significantly, the opt-in plaintiffs allege widely varying adverse employment actions spanning nearly ten years. The challenged employment actions range from failure to promote, failure to transfer, layoff and constructive discharge to downgraded performance evaluations and discrimination in job assignments and training. According to the defendants, the thirty opt-in plaintiffs dispute over two hundred separate employment actions.

In support of his motion, however, Mr. Thiessen alleges an overall policy of defendants to rid the company of older workers. In support of this allegation, Mr. Thiessen relies on a series of documents referring to "blockers" and a "blocker" program allegedly implemented by top executives in defendants' corporate hierarchy.7 According to Mr. Thiessen, this "blocker" program targeted older employees regardless of location, job position, salary or any other factor other than age.

Thus, Mr. Thiessen contends, the opt-in plaintiffs are "similarly situated" for purposes of § 216(b) in that each opt-in plaintiff has been adversely affected by a company-wide policy of age discrimination (i.e., the "blocker" program). Defendants vigorously deny the existence of any policy or plan of age discrimination and further contend that the "blocker" program is insufficient to render the opt-in plaintiffs "similarly situated" as required by § 216(b).

III. The "Single Filing" Rule

Before bringing a civil action under the ADEA, a plaintiff must have filed a timely charge of age discrimination with the EEOC. 29 U.S.C. § 626(d).8 The purpose of this filing requirement is to give the EEOC an opportunity to resolve the dispute through conciliation and to give notice of the alleged violation to the defendant. Id.; Ingels v. Thiokol Corp., 42 F.3d 616, 625 (10th Cir. 1994). In appropriate circumstances, however, most courts permit similarly situated individuals to join the action of a plaintiff even though the individual has not filed his or her own EEOC charge, so long as at least one plaintiff has complied with the filing requirements of § 626(d). See, e.g., Mistretta v. Sandia Corp., 639 F.2d 588, 593-94 (10th Cir.1980). This is commonly referred to as the "single filing" rule.9

Although defendants concede the viability of the single-filing rule in appropriate circumstances, they contend that such circumstances are not present here. Specifically, defendants maintain the single-filing rule should not apply to the opt-in plaintiffs for the following reasons: (1) Mr. Thiessen's charge of discrimination was insufficient to put either the EEOC or defendants on notice of potential class claims; (2) the single-filing rule only applies to those opt-in plaintiffs who could have filed timely charges of discrimination on the date Mr. Thiessen actually filed his charge; and (3) the claims of the opt-in plaintiffs are beyond the scope of Mr. Thiessen's charge. Each of these arguments is addressed below.

A. The Notice Requirement

Defendants urge that Mr. Thiessen's charge of discrimination is insufficient to satisfy the notice requirements of § 626(d) on behalf of the thirty opt-in plaintiffs. The court disagrees. After carefully reviewing Mr. Thiessen's charge of discrimination, the court finds the charge sufficient to give notice of potential class claims against defendants.

In order for individuals in a collective action to invoke the single-filing rule, the filed charge must contain an allegation of class-wide discrimination sufficient to give the defendants notice of potential class claims. See Mistretta, 639 F.2d at 593-94 (holding notice requirements of § 626(d) were satisfied on behalf of similarly situated opt-in plaintiffs where timely notice had been given for the group).

In Mistretta, only two plaintiffs in the § 216(b) action filed charges of discrimination with the EEOC and the appropriate state agency. Id. at 593. In analyzing whether the notice requirements of § 626(d) had been satisfied as to the remaining opt-in plaintiffs, the Court reasoned:

The recipients were notified that the suit was intended to be a class action for all employees or former employees of Sandia who were between the ages of 40 and 65. The formal charges were alleged to have been filed for the individual complainants and all others similarly situated. The allegation was that Sandia's "arbitrary action constitutes...

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