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 Our opinion of July 3, 2001 is withdrawn and a revised opinion is filed with this order.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
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.
Thiessen, who was born on March 7, 1947, began working as a credit manager trainee for MRCSI in Í968. 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,
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] ... positions] 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.”
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 Fau-cette. At a June 18, 1993, meeting at MRCSI’s Merriam, Kansas facility, Fau-cette 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 varioüs negative employment actions (e.g., negative performance evaluations, demotions, terminations, reductions in force, placement on “special projects,”
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.,
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 for-' ward with direct evidence of an overall policy of purported age discrimination. Moreover, the names of some of the opt-in plaintiffs appear on “blocker” lists. The court believes this evidence cannot be so easily discounted just because the alleged discrimination was meted out “over a wide geographic range in a number of ways” and that it merits a threshold determination that the opt-in plaintiffs are “similarly situated” to Mr. Thiessen for purposes of something akin to conditional certification. However, the court remains troubled by a puzzling lack of any significant showing by Mr. Thiessen that there is a link between this alleged policy and the adverse job actions. Even if there was a discriminatory policy, the opt-in plaintiffs are only “similarly situated” if they can make a submissible case that they, too, were victims of it. It is because of that deficiency, at least in part, that the court is unwilling to grant final certification on the record before it.
Id. The court cautioned Thiessen that, “[i]n order to survive a motion to decertify,” he would “need to set forth what he deem[ed] to be the specific link between the blocker policy and what occurred with each opt-in plaintiff.” Id. Further, the court noted that if, in a subsequent motion to decertify, defendants could “truly convince the court that individual [defense] issues would predominate at trial, the contention that the opt-in plaintiffs [we]re similarly situated would likely be largely eviscerated.” Id. at 1084. Finally, the
At the conclusion of discovery, defendants moved to decertify the class. Defendants also moved for summary judgment with respect to each of the twenty-three plaintiffs. The district court decertified the class, dismissed the opt-in plaintiffs’ claims -without prejudice, and granted summary judgment in favor of defendants with respect to Thiessen’s individual claims of discrimination. Thiessen v. General Elec. Capital Corp.,
II.
Decertification of plaintiff class and dismissal of opt-in plaintiffs
Thiessen contends the district court erred in decertifying the plaintiff class and dismissing the opt-in plaintiffs’ claims without prejudice. We review for abuse of discretion a district court’s decision to certify or decertify a class under the ADEA. See Mooney v. Aramco Servs. Co.,
Class actions under the ADEA are authorized by 29 U.S.C. § 626(b), which expressly borrows the opt-in class action mechanism of the Fair Labor Standards Act of 1938, 29 U.S.C. § 216(b) (1994). Section 216(b) provides for a class action
The overriding question here is whether Thiessen and the twenty-two opt-in plaintiffs are “similarly situated” for purposes of § 216(b). Unfortunately, § 216(b) does not define the term “similarly situated,” and there is little circuit law on the subject. Federal district courts have adopted or discussed at least three approaches to determining whether plaintiffs are “similarly situated” for purposes of § 216(b). See, e.g., Mooney,
Under the second approach, district courts have incorporated into § 216(b) the requirements of current Federal Rule of Civil Procedure 23. See Bayles,
In a third approach, district courts have suggested incorporating into § 216(b) the requirements of the pre 1966 version of Rule 23, which allowed for “spurious” class actions. See Bayles,
In the present case, the district court adopted the ad hoc approach to determining whether the plaintiffs were “similarly situated” for purposes of § 216(b). It first conditionally certified the class during the course of discovery, applying a fairly lenient standard for what constituted “similarly situated.” During its second-stage analysis (prompted by the defendants’ motion to decertify), the court applied a stricter standard, focusing on three factors: “(1) whether a sufficient link existed between the alleged blocker policy and the challenged employment decisions; (2) whether individual issues would predominate at trial; and (3) whether a trial of the action could be coherently managed and evidence presented in a manner that would not confuse the jury or unduly prejudice any party.” Thiessen II,
With respect to the first factor, the district court concluded “the mere fact that plaintiffs suffered adverse employment actions after having been designated as ‘blockers,’ standing alone, [wa]s insufficient to support an inference that a causal connection exist[ed] between the blocker policy and the adverse actions, particularly in light of the significant time lag and critical intervening events.” Id. at 1140. . The
In conducting its analysis of the first factor, the district court also rejected the suggestion forwarded by Thiessen that it should apply a summary judgment-type standard in determining whether, for purposes of the “similarly situated” analysis, there was a sufficient link between the blocker policy and the adverse employment actions taken against, plaintiffs. Instead, the court concluded that whether plaintiffs were “similarly situated” was a factual determination it was entitled to make based on the evidence presented by the parties.
With respect to the second factor, the district court noted that defendants had come forward with “highly individualized” defenses with regard to each of the various adverse employment actions alleged by plaintiffs. Id. at 1142. Allowing defendants to assert these defenses during a collective trial, the court concluded, would effectively result in “23 individual jury trials to determine defendants’ liability to each plaintiff.” Id. at 1143. Although the court acknowledged the “common thread” of the blocker policy, it nevertheless concluded that “the judicial inefficiencies” associated with resolving “what appear[ed] to be 23 distinct cases” clearly outweighed “any potential benefits in proceeding as a collective action.” Id.
With respect to the third factor, the district court noted that plaintiffs had proposed separating the trial into two phases. Plaintiffs proposed that during the first phase of the trial the court “would submit the pattern and practice allegations as well as the individual claims and damages of nine plaintiffs [seven of whom appeared on various lists of proposed blockers, and two of whom were told they were blockers].” Id. According to plaintiffs, this initial phase would “involve a determination of common class issues relating to the existence, implementation, and discriminatory nature of the Blocker Policy as well as class issues regarding wilfulness under the
The district court concluded that plaintiffs’ proposed trial plan had “numerous, serious deficiencies.” Id. at 1144. In particular, the court concluded that plaintiffs’ plan “renderfed] individualized consideration of the claims impossible and impose[d] extraordinary burdens on the jury, both in terms of the quantity of evidence and the length of trial.” Id. Thus, the court stated that “the absence of any workable trial management plan ... reinforce[d]” its decision to decertify the class. Id.
The initial question, which we address de novo, is whether it was proper for the district court to adopt the ad hoc approach in determining whether plaintiffs were “similarly situated” for purposes of § 216(b). See Mooney,
Turning to the merits of Thiessen’s arguments, the question is whether the district court abused its discretion in applying the ad hoc approach and decertifying the class. If plaintiffs were simply attempting to collectively assert their individual claims of discrimination, the decision to decertify would appear to be entirely proper. The problem, however, is that plaintiffs were asserting a pattern-or-practice claim modeled on International Brotherhood of Teamsters v. United States,
Pattern-or-practice cases are typically tried in two or more stages. During the first stage of trial, the plaintiffs’ “burden is to demonstrate that unlawful discrimination has been a regular procedure or policy followed by an employer or group of employers.” Id. at 360,
Returning to the district court’s decision to decertify, we conclude the district court erred in its determination of “whether a sufficient link existed between the alleged blocker policy and the challenged employment decisions,” Thiessen II,
The district court’s consideration of the second factor (whether individual issues would predominate at trial), was likewise adversely affected by its failure to recognize that plaintiffs were proceeding under a pattern-or-practice theory. Although it is true that defendants asserted “highly individualized” defenses to each of the instances of individual discrimination asserted by plaintiffs, those defenses would not become the focal point until the second stage of trial and could be dealt with in a series of individual trials, if necessary. With respect to the first stage of trial and the initial issues of whether they had in place a pattern or practice of discrimination and whether it continued after the fall of 1994, defendants had only a few common defenses. Specifically, defendants alleged that the blocker policy, though perhaps mentioned by Faucette at various times, was never implemented anywhere in the organization and was expressly repudiated by Lanik. Further, with respect to the discriminatory nature of the MDP program, defendants claimed it was open to all employees, including those over age forty. Thus, the presence of the “highly individualized” defenses clearly did not, as the district court concluded, outweigh “any potential benefits in proceeding as a collective action.” As previously noted, there was a significant procedural advantage for plaintiffs to proceed in a collective action: if they prevailed in the first stage of trial, they would be entitled to a presumption of discrimination in subsequent proceedings to decide the merits of their individual claims. By bowing to the individualized defenses relevant only to the second stage of trial, the district court deprived plaintiffs of this opportunity-
The district court’s consideration of the third factor (trial management concerns) was also adversely affected by its failure to recognize the pattern-or-practice nature of plaintiffs’ claim. Most notably, the district court failed to acknowledge that plaintiffs’ proposed trial plan, though perhaps deficient in some respects, was consistent with the framework outlined in Teamsters for pattern-or-practice claims. The court also failed to make any effort to modify the. plaintiffs’ proposed trial plan. Finally, the district court was wrong in concluding that trying the case in two phases, as suggested by plaintiffs, “rendered] individualized consideration of the claims impossible.” Thiessen II,
We conclude the district court abused its discretion in' decertifying the class. Taking into consideration the “pattern or practice” nature of plaintiffs’ lawsuit, as 'discussed above, plaintiffs were, in fact, “similarly situated” for purposes of
A district court considering a motion to certify [or decertify] is entitled to look past the pleadings and examine the evidence produced during discovery, but when an ADEA plaintiff relies upon a “pattern or practice” theory and comes forward with legitimate evidence to support that theory, the district court must take into account the framework for pattern-or-practice cases outlined by the Supreme Court in International Brotherhood of Teamsters v. United States,
Grant of summary judgment
In connection with their motion to de-certify, defendants moved for summary judgment with respect to all of Thiessen’s claims for relief. After granting defendants’ motion to decertify, the district court granted defendants’ summary judgment motion in its entirety. In doing so, the court treated Thiessen’s claims as non-class, individual claims of discrimination. The court concluded that “three of Mr.' Thiessen’s claims, (i.e., his 1993 failure-to-promote claim; his ‘phase-out’ claim); and his downgraded performance claim” were time barred because they occurred more than 300 days prior to the filing of Thies-sen’s EEOC charge. Thiessen II,
On appeal, Thiessen contends the district court erred in granting summary judgment in favor of defendants. We review the district court’s grant of summary judgment de novo. Kidd v. Taos Ski Valley, Inc.,
As with defendants’ motion to decertify, proper consideration of defendants’ motion for summary judgment must take into account the fact that Thiessen and the opt-in plaintiffs were asserting a pattern-or-practice claim. Although there is little case authority discussing summary judgment motions in pattern-or-practice cases, we see no reason why summary judgment motions cannot be aimed at both the first and second stage issues. Presumably, however, such motions must be analyzed in light of the orders of proof pecu
We conclude the district court erred in granting summary judgment in favor of defendants with respect to Thiessen’s claims for relief. Consistent with our discussion of the class decertification decision, it is apparent that the first stage issues in this pattern-or-practice case have yet to be resolved. Thus, Thiessen’s claims cannot at this point be treated as non-class claims of individual discrimination or analyzed under the McDonnell Douglas framework. Refusal to alloiv certain plaintiffs to join class
When it initially certified the plaintiff class during discovery, the district court addressed several issues, including whether the proposed opt-in plaintiffs, none of whom filed EEOC charges, could piggyback on the EEOC charge filed by Thies-sen.
On appeal, Thiessen contends the district court erred in excluding these eight individuals from the opt-in class. According to Thiessen, the district court failed to consider evidence that defendants actively concealed the existence of the blocker policy. This evidence, Thiessen suggests, should have equitably tolled the time period for filing EEOC charges based on the blocker policy, and should have allowed all the proposed plaintiffs to opt in to the class'. As previously noted, we apply an abuse of discretion standard in reviewing a district court’s decision to certify a class. Mooney,
Federal courts “ ‘universally hold that an individual who has not filed an administrative charge can opt-in to a suit filed by any similarly situated plaintiff under certain conditions.’” Mooney,
Our threshold task is to determine the time frame that gave rise to Thiessen’s claims of discrimination. See Jones v. Firestone Tire and Rubber Co.,
To view the problem in a different way, the question could be posed as whether each of the proposed opt-in plaintiffs could have filed a timely EEOC charge at the time Thiessen filed his charge. Because all of the proposed opt-in plaintiffs rely on the continuing violation doctrine, all could conceivably have filed timely charges at the time Thiessen filed his charge.
Having reached this conclusion, we find it unnecessary to address Thiessen’s active concealment/equitable tolling argument. Even assuming, arguendo, defendants actively concealed the existence and implementation of the blocker policy from plaintiffs, only those plaintiffs who suffered adverse employment actions after implementation of the policy could be included within the class.
Deposition of defendants’ corporate counsel
Thiessen contends the district court erred in refusing to allow him to depose defendants’ corporate counsel, Sarah Gor-
We review a district court’s determinations regarding waiver of attorney-client privilege and work-product protection for abuse of discretion. Frontier Ref., Inc. v. Gorman-Rupp Co.,
When the issue of deposing Gorman was raised in the district court, the parties and the court agreed it was controlled by the rule announced in Shelton v. American Motors Corp.,
After reviewing the record on appeal, we find no abuse of discretion on the part of the district court in refusing to allow Thiessen to depose Gorman. In particular, Thiessen has failed to demonstrate that the district court’s factual findings regarding the first Shelton requirement (i.e., the availability of other avenues for obtaining the information) were clearly erroneous. It is therefore unnecessary to address the district court’s ruling on the second Shelton requirement (i.e., that the information sought was privileged).
III.
The decision of the district court decerti-fying the class of opt-in plaintiffs is REVERSED; the decision of the district court granting summary judgment in favor of defendants with respect to plaintiff Thiessen’s individual claims of age discrimination is REVERSED; the decision of the district court excluding eight individuals from the opt-in class is REVERSED; the case is REMANDED to the district court for further proceedings consistent with this opinion.
Notes
. Because the bulk of relevant events in this case occurred prior to 1997, the opinion will refer primarily to MRCSI.
. Although Thiessen's complaint also included a claim under Title VII for reverse race discrimination, he has since abandoned that claim.
. "Of course, this is not a true Rule 23 class action.” Kelley v. Alamo,
. We note that the Eleventh Circuit recently endorsed this ''two-tiered'' approach to certification of § 216(b) opt-in classes. See Hipp v. Liberty National Life Ins. Co.,
. Shortly after Lanik assumed the reins as CEO of MRCSI, she terminated employee Rick Richards, an older, white executive who had worked for the company for years and who had allegedly been classified as a "blocker” in 1993. Following his discharge, Richards filed an EEOC charge of age discrimination (it is unclear from the record whether he also filed a lawsuit). Defendants’ legal department responded to the charge by investigating the origination and implementation of the blocker policy and, according to plaintiffs, by purging company files of documents pertaining to the policy. Ultimately, defendants settled with. Richards regarding his claim of discrimination. Following these events, defendants’ counsel advised Lanik that she should expressly repudiate the blocker policy. Lanik did so in the fall of 1994; more specifically, in a series of meetings that included most of defendants' employees, Lanik stated there was no blocker policy and that employment decisions were to be made on the basis of merit. Plaintiffs allege that, notwithstanding this purported repudiation, defendants continued to maintain and apply the blocker policy.
. The Eleventh Circuit has apparently rejected the notion of relying on the Rule 23 requirements in deciding whether plaintiffs are “similarly situated” for purposes of § 216(b). Grayson v. K Mart Corp.,
. "The second stage of a pattern and practice claim is essentially a series of individual lawsuits, except that there is a shift of the burden of proof in the plaintiffs’ favor.” Newberg on Class Actions, § 4.17 (3d ed.1992).
. If 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. See Cooper,
. We note that the outcome of the first stage will essentially resolve the question of whether plaintiffs can properly rely on the "continuing violation” doctrine and seek relief for alleged acts of discrimination occurring more than 300 days prior to the filing of Thiessen’s EEOC charge. See Purrington v. Univ. of Utah,
. Normally, "[a] person who believes that he has been the victim of age discrimination must file a charge with the EEOC within 180 days of the adverse employment decision ... if he is in a 'non-deferral state,’ 29 U.S.C. § 626(d)(1); and within 300 days of the employer’s wrongful conduct if he is in a 'deferral state,' 29 U.S.C. § 626(d)(2).” Grayson,
. Although Thiessen contends defendants generally had an ageist working environment, there is little, if any, evidence indicating that the blocker policy was actually implemented until mid-1993.
. If plaintiffs can survive summary judgment, the question of when the blocker policy was implemented, if at all, and how long it lasted, are factual questions for the jury. Assuming, arguendo, the case proceeds to the first stage of trial and the jury makes findings on these issues, those findings would be controlling for purposes of finalizing the class for purposes of the second stage proceedings. In this regard, we note there is some limited authority for a district court certifying a class for purposes of the first stage issue and reserving decision on certification for the second stage. See Butler v. Home Depot,
. These individuals include Julia Bates All-good (resigned September 1993), Delilah flicks (resigned April 1994), Eugene Lauren-zo (laid-off September 1993), and Larry Nobles (laid-off September 1993).
.The few decisions dealing with "pattem- or-practice” cases appear to suggest the plaintiff class can include all employees affected by the illegal pattern-or-practice, regardless of whether or not they filed EEOC charges. See Albemarle Paper Co. v. Moody,
. Shelton was adopted by this court in Boughton v. Cotter Corp.,