Thompson v. Weyerhaeuser Co.

• Citation: 582 F.3d 1125
• Decision Date: 26 August 2009
• Docket Number: No. 07-7090.,07-7090.
• Parties: Larry THOMPSON; Joel White; Linda Slabaugh; Susan Rogers; Ed Risenhoover; Joe Privette; James Little; Alan Lewis; Darrell Kelley; Ford Hendershot; Stan Harris; Harold Griffin; Alan Gebert; Tony Fennell; William Cooper; Gerald Adams; Robert Timmer; and Ted Kruchowski, Plaintiffs-Appellees, v. The WEYERHAEUSER COMPANY, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

582 F.3d 1125

Larry THOMPSON; Joel White; Linda Slabaugh; Susan Rogers; Ed Risenhoover; Joe Privette; James Little; Alan Lewis; Darrell Kelley; Ford Hendershot; Stan Harris; Harold Griffin; Alan Gebert; Tony Fennell; William Cooper; Gerald Adams; Robert Timmer; and Ted Kruchowski, Plaintiffs-Appellees, v. The WEYERHAEUSER COMPANY, Defendant-Appellant.

No. 07-7090.

United States Court of Appeals, Tenth Circuit.

August 26, 2009.

Kristen L. Brightmire, Eldridge Cooper Steichen & Leach, PLLC, (William S. Leach and Michael F. Smith with her on the briefs), Tulsa, OK, for the Defendant-Appellant.

J. Vince Hightower, Tulsa, OK (Jim T. Priest, Whitten, Burrage, Priest, Fulmer, Anderson & Eisel, Oklahoma City, OK, with him on the brief), for the Plaintiffs-Appellees.

Before HENRY, Chief Judge, and MURPHY and TYMKOVICH, Circuit Judges.

HENRY, Chief Judge.

After losing their jobs at the Weyerhaeuser Company's Valliant, Oklahoma containerboard plant as part of a reduction in force, the plaintiffs filed this wrongful termination action against Weyerhaeuser, alleging violations of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-34, and state law. In pretrial briefing, the plaintiffs requested that the court apply the pattern-or-practice framework adopted by the Supreme Court in International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). Weyerhaeuser moved to strike the plaintiffs' request, arguing that the pattern-or-practice framework should be employed only in employment discrimination cases filed under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17.

The district court denied Weyerhaeuser's motion, reasoning that this court's decision in Thiessen v. General Electric Capital Corp., 267 F.3d 1095 (10th Cir. 2001), establishes that the pattern-or-practice framework may be applied in ADEA cases. The court certified the issue for interlocutory appeal. See 28 U.S.C. § 1292(b).

Weyerhaeuser now re-urges its argument that the pattern or practice framework should not be applied. It further contends that our decision in Thiessen did not reach that question.

We are not persuaded. Thiessen holds that when a plaintiff alleges that age discrimination was an employer's "standard operating procedure," Teamsters, 431 U.S. at 336, 97 S.Ct. 1843, and presents sufficient evidence to support that allegation, the district court must apply the pattern-or-practice framework. 267 F.3d at 1108. Accordingly, exercising our discretion under 28 U.S.C. § 1292(b), we affirm the district court's decision denying Weyerhaeuser's motion to strike and remand the case for further proceedings consistent with this opinion.

I. BACKGROUND

In 2002, Weyerhaeuser's Valliant, Oklahoma plant implemented a reduction in force. As a result, sixteen of the plaintiffs were discharged. The seventeenth plaintiff, Larry Thompson, was discharged in 2003. Each of the plaintiffs was over forty years of age at the time of discharge.

The plaintiffs then filed this wrongful discharge action in the Eastern District of Oklahoma, alleging violations of the ADEA and state law. The district court granted summary judgment to the defendants on the grounds that the plaintiffs had signed a waiver of their right to file an ADEA claim in order to obtain a severance package. However, in a prior appeal, this court held that the waivers were not valid, reversed the grant of summary judgment, and remanded the case for further proceedings. See Kruchowski v. Weyerhaeuser Co., 446 F.3d 1090 (10th Cir.2006).

After remand, as we have noted, the district court denied Weyerhaeuser's request to strike the pattern-or-practice theory of discrimination advanced by the plaintiffs but certified the ruling for interlocutory appeal.

II. DISCUSSION

Weyerhaeuser now argues that, in contrast to Title VII, the ADEA does not authorize a court to apply the pattern-or-practice framework for assessing claims of age discrimination. Weyerhaeuser acknowledges that this court's decisions in Thiessen and EEOC v. Sandia Corp., 639 F.2d 600 (10th Cir.1980), have applied the pattern-or-practice framework to ADEA claims. Nevertheless, Weyerhaeuser maintains, those cases did not consider the arguments it now raises and therefore are not controlling. These contentions raise legal questions that we examine de novo. See WWC Holding Co., Inc. v. Sopkin, 488 F.3d 1262, 1276 n. 10 (10th Cir.2007).

A. The pattern-or-practice framework has been widely applied to ADEA cases.

The federal statutes barring discrimination in employment contain only a brief reference to the pattern-or-practice framework at issue here. A section of Title VII authorizes the Attorney General to file a civil action against "any person or group of persons" whom he or she has reasonable cause to believe "is engaged in a pattern or practice of resistance to the full enjoyment of any of the rights secured by this subchapter, and that the pattern or practice is of such a nature and is intended to deny the full exercise of the rights herein described." 42 U.S.C. § 2000e-6(a) (emphasis added).

Unlike Title VII, the ADEA contains no express reference to pattern-or-practice claims. The ADEA does adopt the opt-in class mechanism of the Fair Labor Standards Act, which authorizes class actions when the complaining employees are "similarly-situated." See 29 U.S.C. § 626(b) (providing that the provisions of the ADEA "shall be enforced in accordance with the powers, remedies, and procedures provided in [specified sections of the Fair Labor Standards Act,]" including the Fair Labor Standards Act provision regarding class actions, 29 U.S.C. § 216(b)). However, that class action statute does not use the term "pattern-or-practice." See generally Thiessen, 267 F.3d at 1102-08 (discussing ADEA class actions).

In the absence of specific statutory provisions, the details of the pattern-or-practice framework have developed in Supreme Court decisions in which the plaintiffs alleged that employers had violated Title VII by engaging in "a pattern of discriminatory decisionmaking." See Cooper v. Fed. Reserve Bank of Richmond, 467 U.S. 867, 876, 104 S.Ct. 2794, 81 L.Ed.2d 718 (1984); Teamsters, 431 U.S. at 357-62, 97 S.Ct. 1843; Franks v. Bowman Transportation Co., 424 U.S. 747, 772-73, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976). In those cases, the Court has concluded that trial proceedings involving pattern-or-practice claims should occur in a series of specific stages. It has also allocated the burdens of proof on various issues in a manner that "differ[s] dramatically from a case involving only individual claims of discrimination." Thiessen, 267 F.3d at 1106. (citing Teamsters, 431 U.S. at 357-62, 97 S.Ct. 1843). The Court has applied this framework both in cases filed by the government, see Teamsters, 431 U.S. at 328, 97 S.Ct. 1843, and in cases filed by private parties, see Franks, 424 U.S. at 772, 96 S.Ct. 1251.

In a pattern-or-practice case, the Court concluded, the trier of fact should first determine whether the allegedly discriminatory pattern or practice actually existed. In contrast to cases alleging solely individual discrimination, the initial focus of a pattern-or-practice case is upon the defendant employer's "standard operating procedure." Teamsters, 431 U.S. at 336, 97 S.Ct. 1843. The plaintiff must first show that "unlawful discrimination has been a regular procedure or policy followed by an employer or a group of employers." Id. at 360, 97 S.Ct. 1843. If the factfinder is not persuaded, then the pattern-or-practice phase concludes. Thiessen, 267 F.3d at 1106 n. 8 (adding that "[i]f the plaintiffs do not prevail during the first stage of a pattern-or-practice trial, they are nevertheless entitled to proceed on their individual claims of discrimination").

On the other hand, if the plaintiff proves that a discriminatory pattern or practice existed, the court may award prospective equitable relief. See id. at 1106. The Teamsters Court explained that "[s]uch relief might take the form of an injunctive order against continuation of the discriminatory practice, an order that the employer keep records of its future employment decisions and file periodic reports with the court, or any other order necessary to ensure the full enjoyment of the rights protected by Title VII." 431 U.S. at 361, 97 S.Ct. 1843 (internal quotation marks omitted).

After this initial phase of a pattern-or-practice case, the inquiry shifts. The factfinder must proceed to determine whether "any particular employment decision, during the period in which the discriminatory policy was in force, was made in pursuit of that [pattern or practice]." Id. at 362, 97 S.Ct. 1843. "Importantly, by having prevailed in the first stage of trial, the individual plaintiffs reap a significant advantage for purposes of the second stage: they are entitled to a presumption that the employer has discriminated against them." Thiessen, 267 F.3d at 1106. As a result, at this stage, the defendant employer has the burden of persuading the trier of fact that the employer did not unlawfully discriminate against the individual plaintiff. That burden is justified because "the finding of a pattern or practice changed the position of the employer to that of a proven wrongdoer." Teamsters, 431 U.S. at 359 n. 45, 97 S.Ct. 1843.

This circuit has applied the pattern-or-practice framework in ADEA actions. For example, in Thiessen, the plaintiffs had alleged that their employer had adopted a "blocker policy" under which 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," and then taking adverse employment actions against the older employees. 267 F.3d at 1100. According to the district court in Thiessen, "[The lead plaintiff, Mr. Thiessen] has not simply averred the existence of a discriminatory...